The Historical Foundations of World Order: The Tower and the Arena

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The Historical Foundations of World Order

The Historical Foundations of World Order The Tower and the Arena

by

Douglas M. Johnston

LEIDEN • BOSTON 2008

Printed on acid-free paper. A c.i.p. record for this book is available from the Library of Congress.

isbn: 978 9004 161672 Copyright 2008 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Hotei Publishers, idc Publishers, Martinus Nijhoﬀ Publishers and vsp. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microﬁlming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. Typeset by jules guldenmund layout & text, The Hague Printed and bound in The Netherlands.

Acknowledgements

On 6 May 2006 Douglas M. Johnston, my father, succumbed to cancer. The concept of this book had been suggested to him way back in 1959 by Myers McDougal, cocreator of the New Haven School of Policy Science at Yale University, while he was a student under that eminent scholar. As the culmination of ﬁve years of exhaustive research and writing, it now stands as the last installment and legacy of an illustrious publishing career. The ﬁnal chapter was literally completed from his hospital bed just two weeks prior to his passing, to the amazement of the doctors and nurses in attendance. These acknowledgements, therefore, are mine and I sincerely regret if I have neglected anyone that my father would have wished to recognize on this page. I can be certain, however, that at the top of the list would have been his wife of 47 years, Judith. Her tireless devotion and support throughout their life together only intensiﬁed along with the urgency to ﬁnish this book during the ﬁnal months of his life. Her role as typist, fact checker, and research assistant cannot be underestimated. While the seed was planted in 1959 by Myers McDougal, two close friends of my father’s can be credited with encouraging him to undertake the eﬀort at the conclusion of his career. These are Ronald Macdonald, his long time writing collaborator, and Brian Flemming, former colleague, both at Dalhousie Law School. Much of the research for this book was conducted at various university libraries. The staﬀ and administrators at the UVic Law Library, the UVic McPherson Library, the Dalhousie Law Library, and the Yale Law Library, who would have faithfully been at my father’s service, deserve thanks. At various stages of writing, he sought and received feedback from various friends and colleagues. These include Professors Aldo Chircop, Zou Keyuan, Ted McDorman, Bill Neilson, and Andrew Willard and Christian Wiktor, former Head Librarian at the Dalhousie Law Library. The posthumous publishing of this book has presented some challenges. My father did not have the opportunity to make ﬁnal revisions or participate in the preparation of elements of the book beyond the introduction, nine chapters, and bibliography. I personally would like to recognize Peter Bushman and Annebeth Rosenboom (formerly) at Martinus Nijhoﬀ Publishers for exhibiting ﬂexibility and patience beyond the norm in response to these circumstances. I am grateful to Michael Reisman for contributing the Preface and for the kind words of praise contained therein. Three of the colleagues mentioned above, Aldo Chircop and Christian Wiktor at Dalhousie

vi

Acknowledgements

University and Ted McDorman at University of Victoria, were extremely helpful to my mother and to me as we worked through the decisions and preparations required to bring this book to print. Ted also has the eternal gratitude of the entire Johnston family for the dedicated support he oﬀered without hesitation during the ﬁnal weeks of my father’s life, the period after his death, and to the day of this writing. Keith A. Johnston

Preface

Great history is far more than a chronological narrative. It requires a contextualization of events in their cultural, economic and technological milieu and an appreciation of their contingency. It must account for the impacts of exceptional individuals, without, as Harold Lasswell put it, rendering them taxidermical specimens. Yet it must also account for collective actions and path-driven results, the so-called “great historical forces.” Because the narrator, unlike his scientiﬁc counterpart, is the ultimate instrument of perception and appraisal, writing great history requires a precise sense of self, of standpoint and of role in the reconstruction and appraisal of events. Above all, through a narrative of particular events, writing great history is a meditation on the human condition which depends upon the intellectual quality of the writer. Writing great international legal history is even more challenging, for even the referent of the term “international law” is controversial. The processes and arrangements to which it has referred have varied through time and across cultures and classes. No wonder that T.E. Holland could remark in perplexity that international law is “the vanishing point of jurisprudence.” The international legal historian must fashion his own heuristic in order to encompass arrangements and processes which may not have been assigned the sobriquet, “international law,” by the people who fashioned them; yet from the perspective of a disengaged observer, it will be apparent that these processes and arrangements functioned as the struts of world or regional order in speciﬁc contexts. The quality of the legal theory or jurisprudence of the legal historian is thus a critical component in the success of his venture. But this poses a dilemma. The legal historian who would write for the lay members of the world community – the people who will ultimately survive or perish depending on the eﬀectiveness of international law and its contribution to world order – ﬁnds himself caught perilously between the Scylla of precision of professional language and the Charybdis of dialogue with a tiny group of experts. Like the renowned Lassa Oppenheim, who hoped that his own treatise would open international law to the intelligent lay person, Douglas Johnston has written an historical account of a dynamic international law and made it accessible to every intelligent reader. Johnston writes that

viii

Preface

“If a history of world order is to be written at all for a non-technical readership, it seems essential . . . that it be disengaged from the mainstream of legal terminology. “Legalese” has a lethal eﬀect on those who read for pleasure as well as information. Admittedly, legal jargon is widely regarded as indispensable within the profession. ... But the public needs to know much more about the issues and opportunities confronting the international legal community in our time. The growth of world order norms and institutions since the mid-twentieth century has been spectacular, and the drama shows every sign of increasing. To convey the scope of these challenges, an unusual eﬀort deserves to be made to present the structure of world law in modern, innovative terms.”1

“The functionalist, multi-model approach to the theory of international law,” Johnston writes, “commits the historian – and his reader – to a long story of slow and uneven human development: to a cross-cultural history of legal, moral, political and psychological maturation.”2 In the bulk of this book, Johnston tells that “long story” in rich, comprehensive and multi-cultured detail. But he introduces the material in an unusual and brilliantly successful fashion. Through the device of very detailed case studies, Johnston introduces the reader to some of the basic concepts of international law. These introductory “vignettes” provide the reader with a “preliminary sweep over six areas of international law ... to convey the range of norms, concepts, institutions and processes but contribute to its complexity and importance in the modern world.”3 This extraordinary book brilliantly achieves its objective. “The Historical Foundations of World Order” is a magniﬁcent achievement. Other historical accounts of international law pale in comparison. The general reader, no less than the international lawyer, will ﬁnd here the most detailed account of the history of international law. Johnston has given us a rich tapestry of the eﬀorts of human beings in diﬀerent civilizations from the earliest to the present, to establish arrangements that could secure the key civic values which each civilization pursued. This is a book which every international lawyer and student of international law can read proﬁtably; it is worth emphasizing the words “can read,” for, for all of its sophistication, it is readable and delightful throughout. Johnston opens his book with the words “Public International Law has always suﬀered from public anonymity.” Thanks to his breadth of knowledge, wisdom and engaging style, this book will go a long way toward rescuing international law from that anonymity. If I may permit myself a personal note: I have awaited this book with great anticipation. When Douglas Johnston came to my oﬃce at Yale ﬁve years ago to describe the project and give me the ﬁrst two chapters, I knew that a major contribution to international law was in gestation. The honor which I feel in introducing it now is tinged with sadness because its author died shortly after its completion. Douglas Johnston was one of the great international legal scholars of his generation. He had published more than 30 books which ranged over the entire ﬁeld of international 1 2 3

Page 132. Page 147. Page 111.

Preface

law, from its history, its constitutional structure, treaty practice, the law of the sea, environmental law and his special interest in China and Chinese practice. This scholarly achievement would have entitled Douglas to more than a measure of pride, but he was always modest and unassuming, a gentle and witty companion and a trusted friend. International law has lost a great scholar and a champion of human dignity. The college of international lawyers which admired and honored Douglas can console itself with his legacy of this magniﬁcent book. W. Michael Reisman Myres S. McDougal Professor of International Law, Yale Law School New Haven, Connecticut August 31, 2007

ix

Table of Contents

Douglas M. Johnston – Biography Introduction: The Quest for World Order Part One

The System

xv xvii 1

1

International Law in Action Introduction Principle: Diplomatic Immunity Pact: The Law of Treaties Regulation: Transportation Reform: The Law of the Sea Protection: The Arctic Environment Intervention: Sovereignty and Security Final Reflections

3 3 4 19 35 49 62 74 103

2

Images of International Law The Eurocentric Heritage Confrontations of Greek Philosophy Rule and Policy in Legal Theory Re-Imagining World Order Dilemmas History Final Reflections

105 106 109 113 123 136 138 139

Part Two 3

Out of the Mists

Primitive Order Seeking Out Antiquity Ancient Religion Ancient Law Ancient Warfare

143 145 145 154 157 161

xii

Table of Contents

Ancient Trade Ancient Bureaucracy Ancient Diplomacy Final Reflections

164 167 170 175

4

Universal Order in Classical Antiquity I The Greeks II The Romans III The Chinese IV The Indians V The Africans Final Reflections

179 180 199 227 234 238 240

5

Universal Authority in Pre-modern History Descent into Darkness Feudal Order Faith, Benevolence, and Universality Faith, Power and Autonomy Crusading Faith, Conquest and Chivalry Pacifism and the Laws of War Trade and Navigation Diplomacy and Treaty-Making Final Reflections

243 243 246 247 264 278 292 296 308 316

Part Three

Into Clear View

321

6

Shaping of the Modern World (1492-1645) The Age of Exploration The Rise of the Modern Sovereign State Religion, War, and the Quest for Perpetual Peace The Spirit of the Times Piracy, Privateering, and Anarchy at Sea Convergence and Divergence of Legal Systems The Early Modern International Jurists Themes and Controversies Final Reflections

323 324 335 342 352 365 372 379 395 403

7

Constructing the Imperial World-system (1618-1815) Europe in Ascendancy The Peace of Westphalia (1648) Battling for the High Ground Carving up the World The Sinews of Global Sea Power Consolidating the Inter-state System China’s View of the Outside World Themes and Controversies

405 405 408 413 433 450 455 471 480

Table of Contents

Final Reflections

505

8

The Ruling of the Modern World (1815-1905) Empire and Progress The Sinews of Great Power Diplomacy Invention of Modern Constitutional Government Patterns of Colonial Dependency Sovereignty, Extraterritoriality and Annexation China: The Eagles and the Dragon The Subjugation of Indigenous Peoples Consent and Cooperation Within the System The Role Players Themes and Issues Final Reflections

507 507 512 530 549 576 578 591 611 642 666 684

9

Contemporary World Order in Profile The Milieu of Contemporary World Order The Modes of Contemporary Internationalism Preserving International Order Regulating the Use of Force Promoting World Constitutionalism Organizing the Consent and Commitment of the World Community Dealing with Disparities Guarding our Environment Cultivating a Benevolent Society Contemporary Issues and Agendas

689 689 694 696 704 710 719 737 745 753 761

Bibliography

773

Douglas M. Johnston – List of Publications

837

Subject Index

845

Index of Names

869

xiii

Douglas M. Johnston (1931-2006) Biography

Professor Douglas M. Johnston was considered by many to be one of the most creative scholarly minds in international law during the latter half of the 20th Century. In a writing career spanning over 45 years, he contributed more than 30 books and 90 articles on the theory and history of general international law, the law of treaties, Chinese treaty practice, the law of the sea, international environmental law, marine and environmental policy, comparative law, world constitutionalism, and Southeast Asian ocean policy. Born in Dundee, Scotland in 1931, he completed his undergraduate legal studies at the University of St. Andrews in 1955 and then immigrated to Canada. After a brief stint as an Executive Trainee at the T. Eaton Company, he re-entered academia at McGill Law School in Montreal, Canada for graduate work where he studied under Maxwell Cohen. Cohen persuaded Douglas to continue his graduate work at Yale University where he became a student under Myres McDougal and Harold Lasswell and completed his L.L.M. in 1959 and J.S.D. in 1962. His J.S.D thesis, published as The International Law of the Fisheries: A Framework for Policy-oriented Inquiries (Yale University Press, 1965), has gone on to become a classic foundation work in the ﬁeld. The Yale experience led to a scholarly life in the policy science tradition of Yale. During the Yale years he met his wife, Judith Elizabeth Fuess, married in 1959, and eventually had three children: Keith in 1961, Murray in 1964, and Caroline in 1970. He started his teaching and research career back in Canada as an Assistant Professor and one of the founding faculty members of the Law School at the University of Western Ontario, London, in 1959. In 1964, he accepted a one-year position as Visiting Associate Professor at Louisiana State University. Thereafter, he returned to the Yale Law School as a special student in Chinese. Then followed three years at Harvard Law School as a Senior Research Associate where he did research for the Arms Control and Disarmament Agency. In 1969, he returned to teaching at the University of Toronto, Department of Political Economy and then in 1972 to Dalhousie University in Halifax, Nova Scotia, where he stayed as full Professor until 1987. The 15 years at Dalhousie was an extremely proliﬁc period for Douglas and the international reputation of Dalhousie University was enhanced enormously as a result. In addition to launching the doctoral programme in law and his voluminous publishing accomplishments, he performed advisory and consultative services for Environment Canada, the Canadian Department of External Aﬀairs, the International

xvi

Biography

Union for the Conservation of Nature and Natural Resources (Gland, Switzerland), the Commission on Environmental Policy, Law and Administration (Bonn, Germany), and the International Institute for Transport and Ocean Policy Studies (Halifax, Canada). He co-founded and directed the Dalhousie Ocean Studies Programme (DOSP) and the Southeast Asian Programme in Ocean Law, Policy and Management (SEAPOL). The bringing together of leading international scholars in conferences and to produce publications under his editorship was one of his great strengths. His graduate students and colleagues from this period populate the world’s top academic, public, and private sector institutions of legal and policy investigation. In 1987 he moved to the Faculty of Law at the University of Victoria in Victoria, British Columbia as Professor and Chair in Asia-Paciﬁc Legal Relations where he published several important works, including The Theory and History of BoundaryMaking (McGill-Queens University Press, 1988), “Functionalism in the Theory of International Law” (26 Canadian Yearbook of International Law 3 (1988)), and Consent and Commitment in the World Community: The Classiﬁcation and Analysis of International Instruments (Transnational Publishers, 1997). He concluded his teaching career at the National University of Singapore as Visiting Professor from 1995 to 1999. Semi-retirement began in 1999 with a move back to Victoria as Emeritus Professor of Law, Emeritus Chair in Asia-Paciﬁc Legal Relations, and Senior Research Fellow with the Center in Asia-Paciﬁc Relations at UVIC, he remained active as an advisor, mentor and writer. Along with long-time friend and project partner, Ronald St. John Macdonald, he co-edited Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Martinus Nijhoﬀ Publishers, 2005). Professor Johnston passed away on May 6th, 2006, one week after his 75th birthday and after having just completed the ﬁve-year project of research and writing that has culminated in this book.

Introduction The Quest for World Order

The Focus on International Order. World histories tend to degenerate into a catalogue of follies and disasters. A special eﬀort usually has to be made to divert the reader’s attention from the bleakness of our past. The human condition seems aﬄicted by a succession of wars, famines, and numberless corruptions. The more general the study of world history, the more likely we end up discouraged by what appears to be a random process. Yet over thousands of years most civilizations have been able to produce crucial, if not always lasting or widely shared, beneﬁts. Our imperfect ancestors have proved capable of learning from their mistakes. As posterity, we can look back on a rather encouraging variety of cultural experiments in the ordering of our universe. As seen by most observers of world history, it was either the Western world or the Near East that invented and developed international law. The peoples connected by the Eurasian landmass have been favored by climate and topography to participate in a process of interaction, which, though often conﬂictual, has also resulted in a gradual convergence of values and principles. It is diﬃcult to detect any reason why we should think it was inevitable that Eurasia would prevail as the pioneers of a universal legal system. It has been argued that the larger and more gifted polity of China might have inherited that role, but for an ingrained fear of the consequences of nonconformity that discouraged any non-penal function for a large-scale legal system. Some readers of world history may be intimidated by the prospect of a history of international law. The literature is thin, and most of it ventures on the unreadable. Few professions are more insistent on the need for technical language. The need for certainty and uniformity in the lawyer’s world is often given as suﬃcient excuse for dogma. Ironically, however, the ﬁeld (or discipline) of international law has come together under the inﬂuence of diverse cultural factors. Generally, legal systems are the necessary product of technical elites associated with bureaucracy of one kind or another. But the international law community is diﬀuse, complicated by social and political contradictions. Today the international legal system is shaped as much by the need for change and ﬂexibility as by the need for stability. To capture the complexity of international law in the modern world, now pervasive in almost every domain of human aﬀairs, it seems essential to focus on the larger concept of world order. Here it is presented not as a fashionable reconstruction of world politics, but as a partly legal, partly political, phenomenon: not only in its tradi-

xviii

Introduction

tional (or classical) identity as an evolving, rather technical, “system” of laws, institutions and procedures designed for the inter-state community, but also as a universal heritage of shareable values and sentiments that have gradually built the political and ethical foundation for a more equitable world society. Today, international law in the larger sense ﬁnds itself at the center of the moral universe. For more than two thousand years a balance has been sought between the “idealists” of the tower and the “realists” of the arena, but it is only since the second half of the 20th century that international law has been acknowledged by world society at large as a universally valid, highly institutionalized system of “public morality”. Possibly, world law is moving into a new stage of transformation, beyond its numerous specialized sectors, increasingly addressed by the forum of public opinion. Patterns of Order and Authority. Let us keep our minds open, initially at least, to the possibility that some kind of world order is in fact evolving. If this appears to be likely, what exactly should we be trying to uncover through historic research? Events and ideas are often causally connected. They can be given shape when placed in long perspective. History can be read like music unfolding, oﬀering a degree of structure, revealing a variety of features for each eon. To provide a framework for narration, we might borrow the notion of dominant motifs. In this work, focusing on the history of international law, each eon will be presented as if dominated by a particular kind of idealistic vision of the future. The motif approach to world history is, admittedly, dangerous. It seems to court the sin of oversimpliﬁcation. The truth is, of course, that thinking and feeling about a future world order has had to contend with numerous, distinct, and often divergent, ideals and the deadening weight of “realities”. But if the overriding theme of world order, slowly emergent, is to be sustained, there must be constant reference to changing versions of that ideal: the expansion of non-local order, law and authority. Historians, like lawyers, are trained to respect the written word. So, in dealing with early antiquity, a special eﬀort has to be made to soften the normal evidentiary rigors of one’s discipline. It may be necessary to concede the possibility that other sciences, less dependent on documentary sources, are better placed to reconstruct, or at least to re-imagine, the distant past. Some impressions of primitive antiquity are likely to be more accurate than others, even if none are fully probative. A sense of primitive order has to be derived from a record dimly perceived. The contemporary international law historian must be prepared to tolerate inquiry into an imperfectly proven factual record. The best evidence available seems to indicate the establishment and maintenance of coherent regimes in the great empires of primitive antiquity. Especially in early Egypt and China, order was secured, in relatively stable times, through the discipline of a professional bureaucratic elite, which enjoyed the advantages of unshared knowledge and skills commensurate with its privileged status in the social structure. But order was rarely conceived as a resource that might be shared with other imperial regimes. By the time of classical antiquity (say, between 600 BC and 400 AD) documents had accumulated to provide a detailed account of great events and contend-

The Quest for World Order

ing schools of thought. Human development had reached a speculative stage, when styles of government could be compared, but also a stage of power-holding when military supremacy could result in huge cross-cultural empires. These multi-ethnical conglomerations reached a level of central authority that permitted a system of universal order to be imagined for the ﬁrst time, at least by masterful visionaries such as Alexander the Great and by idealists like Marcus Tullius Cicero. The beneﬁts conferred by the great classical empires included, at best, superior systems of order derived from a higher degree of administrative control. Taxes and other levies raised within the system were applied, in part, to the construction and maintenance of a wide range of public works and services and to the regulation of disruptive activities, as well as the reinforcement of standing armies. The strongest rulers of all in that period of ancient history, were tempted, and often encouraged by sycophants, to envisage a universal order under their writ. In the pre-modern world (say, 400-1500 AD) most of our ancestors felt an overriding pressure to believe and to obey. The rise of Christianity and Islam created enormously powerful fears and loyalties and cross-cultural animosities. In the Western world, the Age of Faith demonstrated the destructiveness of rigid attachments to sacred text and ritual in human aﬀairs, and the weakness of mere compassion against the certitudes of piety. Yet it is in that era that faith and benevolence sometimes converged, creating the image of universal authority, combining the best and the worst of human aspirations. It was also in the pre-modern era that the ﬁrst models of the modern nation-state began to appear. The ruler had to be legitimized by legal and political theory, because the sovereign was the only existing source of legitimacy: the only symbol of formal authority. Established power justiﬁed itself. So great eﬀort had to be expended on the challenge of bridging temporal and spiritual authority. With the growth of national sentiment, it appeared, for a time, that only the spiritual domain could attain a universal reach. However, the early modern era that followed (say, from 1500 to 1625) virtually demolished the idea of a universal authority within a single, global system of religious belief. In the Age of Discovery, commercial enrichment and successful overseas settlement seemed to vindicate the claimed supremacy of sovereign entitlement. Success was its own reward, and success could not be achieved except through materialist ambition and entrepreneurial endeavor. But this was also an era when theologians were forced to loosen their grip on traditional conceptions of an international order. The civil and common law professions of Europe had begun to ﬁnd some shared ground of legal principle, fortiﬁed by canon law doctrine. The development of a distinct, transnational legal system, composed of diverse normative components, could now be aspired to within a new branch of the Western legal tradition. Between 1615 and 1815, building on convergent doctrine, this new kind of legal order crystallized as the law of nations. Despite the surfacing of jurisprudential and philosophical strains, most jurists found themselves persuaded by the unalterable fact of national consciousness and the irresistible growth of state power through successful colonial settlements overseas. If the notion of an international legal system

xix

xx

Introduction

was to survive as a viable hope for the modern world, it would have to be premised on the paramountcy of the sovereign state and its entitlement to withhold consent . It had to be a system of collateral polities, without subservience to a higher authority. It was that period of early modern development, however, that also witnessed the germination of most of our contemporary ideas of good governance or benevolent rule. It was the Enlightenment of the second half of the 18th century that proved to be the most seminal inﬂuence on the future political, social and ethical development of world society. In retrospect, most of the changes that have overtaken the international law community since 1945 are traceable to the writings of the philosophes and literati of the European and American Enlightenment. The century that followed, between 1815 and 1905, was a curious amalgam of ideas and events. The exploitative history of Western imperial powers coincided with a remarkable surge of energies devoted to peaceful and constructive purposes. Almost everywhere, public welfare improved; in wealth, education, health, philanthropy, and a broad range of public works. Yet the overriding impression is of an age devoted to the selﬁsh national interests of Western sovereign states. In the 19th century, much of the idealism still inherent in the old law of nations was modiﬁed within what was now generally perceived to be a professionalized sub-discipline: the sector of public international law. In the scientiﬁc spirit of the era, it was easier than before to acquiesce in the idea that the international legal order was most likely to thrive if its political and ethical elements were screened out. Seen principally as an arrangement of mutual convenience to the restricted family of sovereign states -chieﬂy to the imperial power-holders of the West - it was widely agreed to be best to keep international law as free as possible of soft and confusing considerations of justice and human improvement. The cruelest irony of all is that international law between 1905 and 2005 developed into an innovative and benevolent system of world community law despite the succession of the worst catastrophes in world history. The peaks and valleys of the 20th century have no counterpart in earlier times. The horrors and miseries of the First and Second World Wars caused more death and destruction than all previous wars taken together, and the resort to force since 1945 has become more frequent than ever. Yet, despite the barbarism of the era and its dark legacy for our own time, it also created new hopes and accomplishments in the ordering of a transnational, increasingly universal, society of peoples. Since the founding of the League of Nations in 1919, we have seen a remarkable escalation of cooperative treaties, organizational systems, and managerial regimes. The possibilities of a collective world society have been entirely reconﬁgured. More than ever before, peoples around the world are demanding a better ordered universe. But are we all deluding ourselves? The Politics of International Law. Over the ages, international law has been constantly at the center of international – or at least regional – politics. Paradoxically, the political foundations of world law have been denied by the European system of civilization, which is generally conceded to have had the most enduring impact upon it. The principal inﬂuence is that of the civil law countries of continental Europe,

The Quest for World Order

whose conception of law, derived from that of ancient Rome, has virtually excluded considerations of justice, morality, religion and political expediency. There has always been a tension between European and American approaches to the use of international law in world aﬀairs, but it seems clear enough that there is now a fairly deep and widening split – a “cultural divide” – exacerbated by political rather than merely technical or professional diﬀerences of style. The international law community of the United States is itself divided. According to many historians, Americans have found themselves in disharmony for three hundred years over what their role in the world should be. In part, it was a world they had left behind; in part, it was a world that oﬀered them a constant challenge for spiritual as well as political and economic leadership. Some American historians have accentuated the exemplar nation strand of U.S. exceptionalism: it is a “city upon the hill”. Others have idealized America as a missionary nation called upon to fulﬁll its “manifest destiny” as “leader of the free world”: the American missionary state is not destined to rise and then fall like other nations. Adherents to the exemplary (isolationist) branch of US exceptionalism have always believed that the United States should maintain a distance from other states, content to lead by moral example, without interference in the political aﬀairs of others. This was the philosophy of George Washington, and, in a more sophisticated way, by Thomas Jeﬀerson. The most inﬂuential proponent of American’s mission to save the world, on the other hand, was Woodrow Wilson, an international law professor at Princeton University – perhaps the principal American vehicle for the dissemination of the ideas of the French and Scottish Enlightenment in the late 18th century. President Bush’s decision to intervene in the Middle East in 2003 was a remarkable gamble with Wilson’s or Roosevelt’s sense of destiny. For almost a hundred years, Europeans have become accustomed to American claims to leadership of a highly organized, semi-constitutionalized world community. But the period since the searing events of 9/11 has become a diﬃcult time in world history to convince most Americans that their unpopular foreign policy should be constrained by global constitutional norms and procedures that could be applied against them by unfriendly foreigners. This history of world order takes an optimistic view of the future of international legal system. Despite the institutional criticisms it has had to confront and the “cultural divides” that currently politicize the ﬁeld, the organized world community has progressed impressively in its development of law-based settlements and arrangements designed for the beneﬁt of all. It is a story that oﬀers hope at a tine of widespread distress, and it needs to be told.

xxi

Part One The System

1 International Law in Action

Introduction Public international law – once known as the “law of nations” – has been evolving for a very long time. Yet it has always suﬀered from public anonymity. Even lawyers well versed in their own “municipal” (i.e. national) legal system often underestimate the extraordinary range of functions that international law in the modern world is called upon to serve. In recent years invocations to international law have become more fashionable in the speeches of politicians and ethicists, and in the commentaries of journalists. Indeed international law has become the central point of reference in the quest for “legitimacy” in world aﬀairs. However, these references often appear to be based on hazy notions about this legal system that is so easily invoked. To begin with the age-old question of the special nature of international law might seem entirely logical, but this would be to plunge the reader too soon into a whirlpool of deﬁnitional controversy. Let us begin instead with a series of snapshots, each taken to bring into focus various examples of international law in action. Each oﬀers a different angle of perception. Outside the ﬁeld of international law, there is a small but growing sector of academic literature on “international morality”. It originated in the ancient Greek doctrine of natural law, which still has its proponents (Verdross and Koeck, 1986). Today, however, “international morality” is promoted by a fairly wide variety of ethicists, ranging from scholars professionally trained in moral philosophy and theology, through humanists and paciﬁsts, to animal rights proponents and other representatives of the “transnational ethical community”. Most of these ethicists and moralists seem to agree that the deﬁnitive expression of moral principle in world aﬀairs today is international law. Yet it cannot be argued that traditional international law rests on ﬁrm foundations of justice (Johnston, 1978). The international law of human rights is a recent phenomenon in a discipline that stretches back far into early world history. The claim that the law of nations has always upheld the principle of equality in international relations is particularly suspect (Pechota, 1983; Kingsbury, 1998). Idealism, however, has been a thread of continuity in the tangled history of inter-state arrangements.

4

Chapter 1

Traditionally, international law has been characterized as a system of rules, or more broadly as a normative system built on a foundation of legal principles, many of which are derived from general principles that are shared by the major systems of national (or “municipal”) law. In modern times, it has been argued, especially in North America, that international law must evolve as the authoritative response to demands everywhere for justice and human dignity, as a system of values as well as a politically neutral system of rules. The implications of this divergence will be explored later. In the meantime, we should begin with a context which illustrates how even the most ancient and most revered principles of international law can be brought under stress, and shows how the institutional system of the world community responds. Principle: Diplomatic Immunity Modernists in the ﬁeld usually accept that international law rests on political foundations. Traditionalists who insist that the discipline should be treated as a science – a “normative science” – prefer to maintain a strict separation between “law” and “politics”. Yet modernists and traditionalists are likely to agree that certain legal principles are so fundamental and of such long standing that they are virtually sacrosanct and a violation is sacrilege. A domain that appears unassailable is surely a safe place to begin. No principle of international law is older or more fundamental than that of diplomatic immunity, albeit a principle subject to abuse (Higgins, 1985). As we shall see in Part Two, diplomatic immunity has its origins in the very remote past. Yet even this venerable principle has had to defend itself. For a recent example of the international law response to diplomatic sacrilege and related issues, let us look at the political history of Iran from 1941 to the late 1980’s. Throughout the 20th century many countries found themselves in a cultural or spiritual struggle with the forces of modernization and Westernization. One of these was Iran, a country justiﬁably proud of its ancient Persian heritage, descended from the civilizations of the Achaemenid, Parthian and Sasanian Empires down to 651 A.D., when the Arabs prevailed in battle and Islam gradually replaced the Zoroastrian faith. Modern Iran has a mixed ancestry, in which Turkish and Arab elements coexist with Kurds, Balochis, Lurs, and numerous smaller ethnic communities. Despite this mix, most Iranians today are Shi’ites who share deep-seated misgivings about modern trends to secularization and materialism. But for over 100 years fundamentalists, moderates, and secularists alike have had reason to resent intrusions from the “international community”. At the end of the 19th century the combination of Russian military force and British diplomacy led to the annexation of northern Iranian territories by the Czarist Russian Empire. The losses included Georgia (the birthplace of Stalin) and Azerbaijan (now independent and known as the Republic of Azerbaijan). The weakness of Iran’s central government in 1907 allowed the Russians and the British to divide the country into two “spheres of inﬂuence”: the North under the inﬂuence of the former, and the South virtually controlled de facto by the latter. After the overthrow of the Czarist regime, the Russian inﬂuence diminished before returning with the rise to power of Stalin the Georgian.

International Law in Action

In the 1920’s the British, dominant in the region, found an Iranian soldier who suited their imperial purpose in establishing a stronger central government, an administration capable of protecting British interests in the emerging oil industry. In a coup against the anti-British Ahmad Shah, Reza Khan (1878-1944) became the new Minister of War, and gradually gained control of the new regime, which deposed Ahmad Shah in 1925. Reza Khan was elected as the Shah by a constituent assembly, and the Pahlavi dynasty was thus established. Reza Shah Pahlavi, who reigned from 1926 to 1941, had been installed by the British on the strength of his military and organizational skills, but also because of his association with the secular sector of Iranian society. An admirer of Ataturk (Mustafa Kemal), the new Shah was a modernist, who supported eﬀorts to make his country self-suﬃcient and to introduce a number of social reforms. Among many Iranians, even today, Reza Shah is fondly remembered as a nationalist leader, as a common soldier who rose to the throne like Napoleon and Bernadotte, albeit propelled there by a foreign power. But as the outside world moved in, beating a path to obtain oil concessions, Iranian Islamic religionists were exposed to foreign materialist values (Fatemi, 1954). During the inter-war period aristocratic and middle-class families in Iran had turned increasingly to Western Europe for their post-secondary education, especially to Germany, France and Switzerland. Reza Shah’s eldest son, Mohammed Reza Pahlavi (1919-1980), who would succeed him, studied in Switzerland. Like many educated Iranians, Reza Shah was inﬂuenced chieﬂy by German culture and institutions, including, it seems, the model of Nazi dictatorship. His pro-German leanings did not endear him to the British, who had been instrumental in his ascendancy to the throne. Nor did the presence of 2,000 German technicians in Persia, who, it was feared in London, might destroy the reﬁnery of the Anglo-Iranian Oil Company at Abadan – a company controlled by the British government as majority shareholder under an agreement negotiated in 1914 by Winston Churchill on the eve of the First World War, when he was First Lord of the Admiralty (Gilbert, 1999). Turned in the wrong direction, but also torn by conﬂicting interests, Reza Shah yielded to British pressure and abdicated in favor of his eldest son in 1944. As the course of future events would show, Mohammed Reza Pahlavi’s tenure on the Peacock Throne would be even more turbulent than his father’s (Rezun, 1982). In the years after the crisis of 1941, over 20 political parties came into existence in Iran, some looking to the right and some to the left, but most were nationalistic and opposed to the new pattern of foreign inﬂuence. The oil industry, consisting largely of the Anglo-Iranian Oil Company and other foreign corporations, attracted much of the venom of the anti-Western parties. After the end of World War Two, Iran became a cockpit of ideological hostilities, arguably the cradle of the Cold War as the new Shah would later suggest (Pahlavi, 1980). The occupation of Iran by the Allies in the Second World War created post-war problems that were legal as well as political. As soon as hostilities ceased, the United States withdrew its forces from Iran, and the United Kingdom agreed to do so later according to a prescribed schedule. But the Soviet Union declined to follow suit, and

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was supported by those pro-Soviet, anti-Western political parties, which in the 1950’s would become anxious to secure an alliance between the two countries. In 1946 the issue of withdrawal of Soviet troops was referred to the UN Security Council, which was mandated under Article 33 of the UN Charter to call upon parties to a dispute to settle by peaceful means: by “negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice”. Iran thus provided the Security Council with one of its ﬁrst opportunities to bring its suasion to bear under Chapter VI of the Charter, which, along with Chapter VII, invests the Council with exclusive responsibility for the maintenance of international peace and security on behalf of the world community. The matter might have become diﬃcult, given the veto-bearing powers of the permanent members of the Council that included three of the principal foreign actors in Iran: the United States, the Soviet Union, and the United Kingdom. Fortunately, the Soviet Union complied with the Council’s request and withdrew its forces. This could be construed as a victory for international law and the United Nations, although it could equally be attributed to the complicated interplay of Iranian domestic politics at that time. In the midst of the turmoil of the post-war era, there came to power in Tehran a messianic nationalist leader, Mohammed Mossadegh. Resentful of Britain’s interventionist policies and practices in Iran, Prime Minister Mossadegh presided for ﬁve years over a program of nationalization that involved massive expropriation of foreign oil company assets (Zabih, 1982). The chief casualty was the Anglo-Iranian Oil Company. The instrument used was the Iranian Oil Nationalization Act, which came into eﬀect in May 1951. Asserting that the application of this Act against the Company would be an “act contrary to international law” for which the Iranian government would be responsible, the United Kingdom instituted proceedings before the International Court of Justice (ICJ), the judicial organ of the United Nations based in The Hague. The United Kingdom argued that the Iranian government was under obligation to submit the dispute to arbitration in accordance with a 1933 Agreement concluded between the Company and the Imperial Government of Persia, which had ruled the country at that time. Iran argued that the Court lacked jurisdiction over the case. The key issue was the intention of the two governments when they exchanged Declarations: the Iranian instrument ratiﬁed in September 1932 and the British instrument signed in February signed in 1940. Since the former was more limited in scope than the latter, it represented the “common ground” between the parties. By a vote of nine to ﬁve, the Court agreed with Iran that it had no jurisdiction over this dispute. The Court majority was “satisﬁed that it was the manifest intention of the Government of Iran to exclude from the jurisdiction of the Court disputes relating to the application of all treaties or conventions accepted by it before the ratiﬁcation of the Declaration”. (ICJ Reports, 1952, Judgment of ICJ in the Anglo-Iranian Oil Co. Case, at p. 106). It is worthy of note that the British judge, Sir Arnold McNair, who was Acting President of the Court at that time, sided with the majority, along

International Law in Action

with the Iranian Judge ad hoc, M. Karim Saudjabi, defeating fears that political bias might carry the day. The Iranian expropriations of foreign assets were only part of a much more general pattern of Third World eﬀorts to loosen the stranglehold that the capitalist world seemed to have over their economies. The period from 1946 to (say) 1971 – the ﬁrst 25 years of the United Nations – was a period very largely devoted to the tasks of decolonization. Although Iran, like Thailand and several other developing countries, had never lost its legal autonomy to a colonial power, its problems of nation-building were similar to those of the former colonies. The practice of expropriating the assets of foreign nationals gave rise to a controversy that divided the international law community along ideological lines. The chief question was whether the government of a developing country such as Iran had, or should have, the right in international law to expropriate foreign assets without any obligation to make “prompt, adequate, and eﬀective payment” by way of compensation. The existence of such an obligation under the doctrine of state responsibility was argued by most international lawyers of developed Western countries such as the United Kingdom and the United States. Socialist governments such as that of the Soviet Union backed most developing countries in the opposite position that sovereign states could not be subject to such an obligation without their consent, and that international law should reﬂect sensitivity to the inability of governments struggling with the problems of nation-building to make full compensation (Friedman and Pugh, 1959). In practice – “state practice” – this kind of issue was seen to be “political” and tended to be treated as negotiable. Throughout the 1950’s numerous bilateral agreements around the world would be concluded to settle this issue. However, state practice is, of course, open to the objection that it is shaped by political inﬂuence rather than by the application of legal principles. In the case of Iran an agreement was signed in 1954 between the national Iranian Oil Company and an international consortium of oil companies. About 10 (70 million) of the compensation owing to the Anglo-Iranian Oil Company was paid by the Iranian government on behalf of the state. The rest (510 million) was paid by the oil companies forming the Iranian Oil Consortium, in return for the shares they acquired in the Iranian oil production (Fatouros, 1962). Dr. Mossadheh’s technical victory before the ICJ had reinforced his popularity at home. It may also have helped to bolster his opposition to the country’s increasingly despotic ruler. The Prime Minister was openly resentful of the Shah’s cavalier disregard for the constitution, a characteristic he had inherited from his father’s side of the family. By early 1953 it appeared that Mossadegh had succeeded in securing the removal of the Shah, who began preparing for a life in exile. However, by this time the ruler had been drawn into the orbit of the United States, which was becoming seriously concerned about the spread of communism and its threat to the West’s oil supplies in the Middle East. In retrospect, there is no doubt at all that the CIA played a major role in the events of 1953 that resulted in the overthrow of Mossadegh and the restoration of the Shah. The interventionists of Europe had been replaced by a more formidable outside power in the internal politics of Iran.

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Iranian politics continued its turbulent course through the 1960’s and 1970’s. Bent on the modernization (or “pseudo-modernization”) of his country, the Shah was increasingly seen to be the leader of the forces of Westernization and secularization, but opposition to him spread beyond conservative Shi’ites to many members of the moderate, pro-Western, urban middle class of Iran, who were increasingly repelled by his brutal use of torture and intimidation to suppress his opponents. Gradually it became evident that the country was moving to the brink of revolution. In retrospect, some historians argue that the ﬁrst phase of the Iranian Revolution was triggered by the visit of President Carter to Tehran in 1977, which seemed to conﬁrm that the Shah had become a puppet of the US, although he tried to portray his relationship with the US government as ambivalent. Growing hatred of the Shah and his supporters coincided with the evolution of clerical involvement in Iranian politics and with the daily appearance of popular, increasingly violent, demonstrators in the streets. By January 1978 demands for the return from overseas exile of Ayatollah Khomeini, the radical Shi’ite leader, had become louder than ever. Soon the distant voice of Khomeini became the voice of revolutionary leadership, calling on the Shah to step aside as a proven collaborator of the United States, which was going to “destroy Iranian culture, Islam, and the economy” (Daneshvar, 1996). One year later, the Shah was under extreme pressure to allow Khemeini to return home. With the resignation of General Azhare on lst January, 1979, Dr. Shahpur Bakhtiar was oﬀered the premiership. Bakhtiar, who had been junior minister under Mossadegh in the 1950’s, agreed on condition that the Shah leave the country while an eﬀort be made to reach a political settlement with the Islamic opposition. The Shah complied. Once installed, Prime Minister Bakhtiar implemented several reforms. He released political prisoners, lifted martial law, and announced free elections. He cancelled 7 billion worth of arms orders from the United States, and announced Iran would no longer sell oil to Israel or South Africa. Bakhtiar tried also to establish a National Front to unite the country, but most of Mossadegh’s former supporters refused to join, insisting ﬁrst on the Shah’s formal abdication. The Shah’s concession in leaving Bakhtiar in charge was too little and too late. Despite Bakhtiar’s eﬀorts to dissuade Khomeini from returning home, and the warning that his aircraft would not be allowed to land, the ayatollah landed in triumph on the 1st of February 1979. He immediately denounced the Bakhtiar government as illegal and called for the continuation of strikes and demonstrations. Under threat for his life, Bakhtiar escaped to Paris with the help of the US government. In February 1979 Mehdi Bazargan became the ﬁrst prime minister of the revolutionary regime. Central authority had broken down. The crowds in the street were rampant. Hundreds of semi-independent revolutionary committees were performing a variety of functions in cities and towns across the country. Incompatible groups, from the far left to the far right, from secular to ultra-Islamic, were vying for power at all levels of Iranian society. As the supreme leader, Khomeini did not consider himself bound by the Bazargan government, which found it had no choice but to share power with the Revolutionary Council established by Khomeini. Throughout 1979 no one was really in charge.

International Law in Action

On the 14th of February an armed group attacked the US Embassy and seized the 70 persons they found there. Two Iranian associates of the staﬀ were killed, serious damage was caused to the Embassy, and the Ambassador’s residence was pillaged. Initially, the Iranian authorities responded appropriately, as required under international law, returning the Embassy to the US diplomatic oﬃcials with an oﬃcial apology and an oﬀer of payment for the damage caused. In October, aware of the continuing dangers, the United States requested assurances from the Iranian government that adequate protection would be provided, as legally required. By this time the Shah had ﬂed to Mexico and was seeking permission to enter the United States for medical treatment. The prospect of sanctuary for such an exile inﬂamed anti-American sentiment in the streets. Nonetheless, the Iranian government responded with assurances that it would fulﬁll its international obligation to protect the Embassy. On November 1st, Iranian security forces repelled a violent demonstration outside the US Mission. However, three days later the Embassy was overwhelmed by an armed group of several hundred angry young people (the “Muslim Student Followers of Imam’s Policy”), one of numerous militant groups that had sprung up in support of the new theocratic regime. The Iranian security forces ﬂed. Within hours the attackers had occupied all the buildings and seized all diplomatic and consular oﬃcials and others present in the compound. Despite repeated requests, no security forces were sent to provide relief as required under international law. Nor was any attempt made by the Iranian government to force or persuade the militants to evacuate the premises and free their captives. Two weeks later, 13 were released, but the illegal detention of 52 US nationals continued. These dramatic events remained unchecked, and in the following months eﬀorts by third parties failed to provide a diplomatic solution. When diplomacy fails to settle a dispute of serious proportions, it falls to international law to demonstrate the eﬃcacy of legal institutions and procedures. By any political or ethical measure, the hostage-taking in Teheran was surely an act of sacrilege, though far from barbaric in terms of injury to the victims. As a system for the settlement of disputes, international law has traditionally oﬀered ﬁve principal methods of third party intervention: fact-ﬁnding (or “good oﬃces”), mediation, conciliation, ad hoc arbitration, and litigation before a permanent international tribunal. Each of these has its own merits and limitations (Merrills, 1984). No doubt the ﬁrst three of these alternatives were quickly rejected by the United States as unduly weak responses to such an aﬀront. In choosing resort to the International Court of Justice (ICJ), the US government was reﬂecting an understandable determination to demonstrate the strength of its hand at the table of public opinion, but the decision to take this course of action was by no means inevitable. For 200 years the United States had been a steadfast champion of international law, and in principle was a supporter of the cause of international adjudication despite its limitations (Katz, 1968). There had always been an American judge on the World Court since its creation at The Hague under the League of Nations in 1919, in its original name as the Permanent Court of International Justice. The United States, moreover, had frequently engaged in international arbitration over the years. Yet it had never chosen to initiate a suit before the World Court, nor allowed

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itself to be taken there for the settlement of a dispute at the insistence of another state. The United States is surely the most litigious society in the modern world – perhaps even more so than Rome in the ancient world. Its reluctance to litigate at the international level might seem anomalous. Many reasons for this reluctance have been suggested. For example, litigation before a standing court, unlike an ad hoc tribunal, involves a loss of control on the part of the parties. In many international legal disputes the judicial outcome has been diﬃcult to predict, given the relatively amorphous nature of many areas of international legal doctrine. The United States, as a common-law country, has reason to distrust an international tribunal dominated by judges from the civil-law tradition. American counsel are uncomfortable with an institution surrounded by the trappings of European judicial formality and imbued with the mind-set of European legal formalism. Lacking the power of enforcement, the Court has often failed the crucial test of eﬀectiveness. Moreover, by 1980 the membership of the ICJ was seen by some observers to be intellectually weaker than some of its predecessors, and becoming even more open to political or cultural bias from an American point of view. Presumably the decision to take Iran to court, overriding all these traditional reservations, was the result of the conﬁdence of the US government in its case: certainly the conﬁdence of the State Department that it could not possibly lose. Perhaps also President Reagan, who had succeeded Jimmy Carter several months earlier, believed that a strong endorsement by the oﬃcial judicial organ of the United Nations would bolster the reputation of the United States as a member of the international legal community, and not just as a political and military superpower. But the larger reality was that the US relationship with the World Court, both before and after the Second World War, had been extremely ambivalent. Throughout most of the 20th century, until the Reagan era of the 1980’s, the commitment of the US government to the principle of international adjudication was an almost invariable part of oﬃcial rhetoric. But this rhetoric has been, at best, “only dimly manifest in the nation’s conduct” (Franck, 1986). Even in the use of international arbitration, where parties retain control over the process, the US record has been weak, as noted wryly in the 1920’s by Manley O. Hudson, the Bemis Professor of International Law at Harvard Law School, the country’s leading academic specialist at that time. The US government, he suggested, “seldom loses an opportunity to profess its loyalty to international arbitration in the abstract … the expression of this sentiment has become so conventional that a popular impression prevails that it accords with the actual policy of the United States” (Hudson, 1928). The fact is that there has long been a split between the unilateral and multilateral strands in US foreign policy. In 1945, when the US Senate was asked to approve the Charter of the United Nations and the Statute of the ICJ, several powerful senators belonging to the unilateralist/isolationist faction objected. Such an act, Senator Connally thundered, would “surrender the sovereignty of the United States”. The “best hope of the world”, he continued, reﬂecting the views of many Americans then and now, “lies in the survival of the United States with its concepts of democracy, liberty, freedom, and advancement under its institutions”. The Senate majority were multi-

International Law in Action

lateralists, but, faced with the diﬃculty of extracting the necessary two-thirds vote in the chamber, they were forced to accept the “Connally Amendment” as a reservation to their approval that was constitutionally necessary for ratiﬁcation by the President. By this amendment, the US government agreed to the compulsory jurisdiction of the ICJ subject to exclusion of all “domestic” matters “as determined by the United States of America”. Since then up to 1980 the Connally reservation had been “brandished as a shield” against unwanted suits. So the policy of acceptance was actually a “disguised rejection” (Franck, 1986). But this less-than-noble policy did allow the United States to take Iran to the Court in the politically favorable circumstances that presented themselves in 1980. So the multilateral part of the US foreign policy prevailed in what was perceived to be a “no-lose” situation, and a suit was initiated before the ICJ. The Iranian government did not ﬁle any pleadings and did not appear before the Court, which was convened under the presidency of the British judge, Sir Humphrey Waldock. It was revealed during the arguments that two letters had been received by the Court from the Iranian Minister for Foreign Aﬀairs, objecting that the hostage-taking “only represents a marginal and secondary aspect of an overall problem” more than 25 years of continual exploitation of our country and numerous crimes perpetrated against the Iranian people, contrary to and in conﬂict with all international and humanitarian norms” (ICJ Reports, 1980). The problem was not one of treaty interpretation: it resulted from “an overall situation containing much more fundamental and more complex elements … namely the whole political dossier of the relations between Iran and the United States over the last 25 years” – a view that would have been diﬃcult to contest. This response by Iran, providing the rationale for its non-appearance before the Court, did raise a basic dilemma. If the Court chose to take a strictly legal approach to the complaint by the United States, on the ground that law and politics should be kept apart, then it was bound to favor the United States, since a narrow view of the matter would exclude the context in which the dispute arose. On the other hand, if it acceded to Iran and examined the context in the interest of balancing the equities, it would be usurping the prerogative of UN political institutions such as the Security Council. This is the dilemma of “justiciability”. Ironically, one of the reasons traditionally oﬀered to explain US reluctance to litigate was the alleged tendency of the Court to display political bias against the United States. In its judgment the ICJ emphasized that “the obligations of the Iranian Government are not merely contractual obligations established by the Vienna Conventions of 1961 and 1963, but also obligations under general international law” (ICJ Reports, Judgment of ICJ in the Case Concerning the US Diplomatic and Consular Staﬀ in Tehran, para. 62). The treaties referred to are the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations. The responsibilities of the receiving state are very clear in both instruments. Under the 1961 Convention, for example, Article 22 states that: “[t]he premises of the mission shall be inviolable”; and that “[t]he receiving state is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity”. Article

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24 provides that “[t]he archives and documents of the mission shall be inviolable at any time and wherever they may be”. Under Article 29, “[t]he person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity”. Similar, but not identical, protections are granted to consular oﬃcials under the 1963 Convention. Whether Iran was or was not a party to these instruments was not relevant, since the guarantees in question have always been binding under “customary” (i.e. “general”) international law. The Court was in no doubt about the sacrilegious nature of the incident: The Court considers it to be its duty to draw the attention of the entire international community, of which Iran itself has been a member since time immemorial, to the irreparable harm that may be caused by events of the kind now before the Court. Such events cannot fail to undermine the ediﬁce of law carefully constructed by mankind over a period of centuries, the maintenance of which is vital for the security and well-being of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected. (para. 92).

In examining the facts, the Court conceded that the militants who had attacked the US Embassy possessed no oﬃcial status in Iran and that their conduct “cannot … regarded as imputable to that State on that basis”(para. 58). However, the Court had no diﬃculty in ﬁnding that the Iranian government had failed altogether to take any “appropriate steps” to protect the premises and personnel of the US mission, to prevent the attack, or to stop it before it reached its conclusion (para 63); and that it had failed in its “plain duty” to “re-establish the status quo and to oﬀer reparation for the damage” (para. 69). By a vote of 13 to two, the Court decided that Iran had violated, and was still violating, its legal obligations to the United States. It also held, unanimously, that the Iranian government must release the hostages immediately; and, by 12 votes to three, that Iran was under an obligation to make reparation. During the course of the judicial proceedings the United States took a number of actions (“counter-measures”) by way of retaliation, including a military incursion into the Iranian desert in a failed eﬀort to rescue the hostages, the freezing of 12 billion worth of Iranian assets, and the introduction of legislation to enable the payment out of these assets of sums to settle outstanding claims by American nationals in American courts against Iran. The Iranian government did not comply with the Court’s judgment, but it did ﬁnally release the 52 American hostages in January 1981, after over a year in detention, as part of a negotiated settlement with the US government. At that point at least the human ordeal was ended (Sullivan, 1995). On the face of things, these omissions on the part of Iran represented a fundamental failure to honor legal obligations which have been observed by almost all states for hundreds of years and rest on principles of diplomatic privilege and immunity that have been invoked for thousands of years as the normative foundation of inter-state

International Law in Action

diplomacy. It might seem diﬃcult for any judges to dissent in such a clear black-andwhite case. But shades of gray are also discernible. First, one of the most respected members of the Court, Judge Manfred Lachs of Poland, attempted to balance the equities in his Separate Opinion by criticizing both parties: Iran for its failure to discharge its legal responsibilities as the host state and for its non-participation in the proceedings, and the United States for “taking unilateral action, military or otherwise, as if no case is pending” (ICJ Reports, 1980, Separate Opinion by Judge Lachs). He noted that in his mandate to the special commission of inquiry, the UN Secretary General had linked the grievances of the two sides. He would have favored a judgment that also called for further negotiation: that is, a judgment that would have been “facilitative” as well as “declaratory” in purpose. “To close the apparent abyss, to dispel the tension and the mistrust, only patient and wise action – mediation, conciliation or good oﬃces – should be resorted to”. Judge Morozov of the USSR also took the US to task in his Dissenting Opinion, focusing on the retaliatory actions of the United States. These were not “normal” counter-measures: they were “incompatible not only with the [1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran] but also with the provisions of general international law and the Charter of the United Nations” (ICJ Reports, 1980, Dissenting Opinion by Judge Morozov). In preparing domestic legislation to permit the disposition of Iranian assets by US courts, the United States, he argued, was “acting as a ‘judge’ in its own cause”. The majority had described the circumstances of the case in an “incorrect and one-sided way”. By assisting in the overthrow of Mossadegh and the restoration of the Shah to the throne the US had intervened illegally in the internal aﬀairs of Iran. Likewise, Judge Tarazi in his Dissenting Opinion took the equitable view of the situation that responsibility should be “relative and not absolute”. In citing former Secretary of State Kissinger’s praise of the Shah as “one of America’s best, most important, and most loyal friends in the world”, he showed how the Shah had lost legitimacy in the eyes of Iranians. These political links “do not in any way justify the occupation of the Embassy. But they should be placed in the balance when the responsibility incurred by the Iranian Government falls to be weighed” (ICJ Reports, 1980, Dissenting Opinion by Judge Tarazi). Not all American international lawyers agreed entirely with the majority. Falk (1986), for example, reacting to the ICJ’s decision, proposed that the Vienna Conventions on diplomatic and consular relations might be re-drafted “so as more nearly to balance the rights of the host country to political independence with the rights of the foreign country to diplomatic security”. The Iranian hostage crisis is seen, then, as illustrating both the strengths and deﬁciencies of international law. On the negative side, it shows that even the most honored of legal principles underpinning the diplomatic process can occasionally be undermined by political events, although admittedly in this case by revolutionaries running out of control rather than by the Iranian government. Moreover, the ayatollah, who was portrayed internationally to be inciting such action, held himself out as a spiritual leader with an authority transcending a system of cross-cultural, temporal authority such as international law (Bakshah, 1984). The judicial institution

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mandated under the UN system to settle such a dispute cannot compel participation by “defendant” states, and cannot enforce its decision in the manner of a national court with the coercive resources of the state to draw upon. Even in these sacrilegious circumstances, arguments were found by the dissenting judges to challenge the appearance of a serious failure by Iran to discharge a basic duty. This challenge might be seen as reinforcing the impression that international law not only rests on political foundations but can also be interpreted diﬀerently by judges with diﬀerent bias. On the positive side, this famous crisis demonstrated that when fundamental legal duties are ignored, most of the world community reacts with abhorrence. It also proved that a highly political crisis can be treated, if not resolved, by an appropriate tribunal whose majority membership tries to base its decision on law, not politics. The ﬁnal settlement came, admittedly, through diplomacy and not from judicial decision, but it is important to recall that nothing in international law – a consensual system – is more central than the “principle of negotiation”, as noted by Judge Lachs in his separate Opinion. Although the decision in the US Embassy in Tehran case met with a somewhat mixed reaction, it may be considered among the least controversial judgments of the ICJ. This institution, the principal judicial organ of the United Nations, has always divided international lawyers, like its predecessor under the League, the Permanent Court of International Justice (PCIJ). Some readers may have expectations that a world court should be politically neutral and detached from the other organs of the world system, which are inevitably inﬂuenced by political considerations of the “real world”. Many international lawyers share this view that the members of the ICJ should, at all times, strive to remain above the level of the arena, operating as “true lawyers” in the Western rule-of-law tradition that puts a premium on judicial independence and integrity. This philosophy is particularly revered among those who may be characterized as “legal formalists” or conservatives trained in the civil law systems of continental Europe, although it is also strongly held among many international lawyers of common law descent in the Anglo-American systems. This judicial philosophy is based, in eﬀect, on the belief that a world court is, or should be, modeled on the best exemplars of a national judiciary. In recent decades, however, there has been a perceptible shift among international lawyers toward the alternative philosophy that, in order to build its credibility in the “real world”, the ICJ must become more “engaged” in the total process of dispute settlement (or management), and that its judges should be responsive to opportunities to assist in problem-solving as a guardian of international society. Instead of focusing only on the relevant rights and responsibilities of the states involved, as urged by the adherents to the tradition of legal formalism, the “progressivists” support a more dynamic, “functionalist”, course of action for the ICJ that would involve not only the “declaratory” role but also, in appropriate circumstances, a “facilitative” or even “resolutive” function. Under the PCIJ, in the inter-war period, the tradition of legal formalism prevailed. By the 1950’s and 1960’s, however, the ICJ was increasingly the target of criticism. Indeed it appeared to many that the role of international adjudication was severely limited (Katz, 1968). Resort to the Court was extremely infrequent, and seemed un-

International Law in Action

likely to increase as more and more non-Western countries became independent and the “third world” began to be represented on the tribunal reﬂecting a wider diversity of political, social and legal cultures. Numerous prescriptions were oﬀered to remake the World Court, and some institutional reforms were implemented. Among the changes advocated by some critics was a change of judicial philosophy. Manfred Lachs was one of the architects of this new conceptual “design” for the ICJ. In this way and others, he was an important ﬁgure in the post-war history of international law. First, he was Polish, molded by a national culture that prided itself on its long and constructive involvement in the intellectual history of Western Europe. Born only a few months before the outbreak of the First World War, Lachs grew up in the midst of political and human catastrophes. Educated at Cracow and other universities, he was well equipped, after military duties, to serve his foreign ministry as a legal adviser. His ﬁrst post-war task was to draft the Polish indictment for the Nuremberg trial of Nazi war criminals, and his ﬁrst book was on war crimes. Almost immediately he was injected into the baptismal aﬀairs of the United Nations. Within ten years he had been elected chair of the General Assembly Legal Committee no less than three times (1949, 1951, and 1955), although still a product of the new postwar generation. His calm, impartial demeanor served him well in the frustrating, and often turbulent, debates of the Cold War era of the UN politics. Although a prominent representative of a communist government, Lachs seems not to have been a communist. Admittedly he was known as an “apostle of peaceful coexistence” in international law circles (Lapenna, 1963) and could have become a target of Western cynics determined to disparage those associated with a doctrine of Soviet origin, but his personal style was conciliatory, not confrontational. In UN circles, he was respected as a cosmopolitan. In the academic community, his erudition was widely admired (Lachs, 1976). In the years up to 1966, Lachs was extremely active on several fronts. As a member of the International Law Commission, he played an active role in the codiﬁcation of the law of treaties (as described in the following section). As a key member, and eventually chair, of the UN Sub-Committee for Peaceful Uses of Outer Space, he earned much credit for his contributions to an extraordinarily productive process of innovative treaty-making that culminated in the 1967 Treaty on Outer Space. He was also an inﬂuential negotiator of important arms control arrangements, including the Treaty on the Non-Proliferation of Nuclear Weapons, that was ﬁnally concluded in 1968. In 1966 these constructive diplomatic tasks had to be set aside with his election to the International Court of Justice, where he acquitted himself with distinction for 18 years in judicial duties, including the position of President between 1973 and 1976 (Makarczyk, 1984). During these 18 years Manfred Lachs made 12 pronouncements in 22 major cases brought before the ICJ. He was not, therefore, one of those judges who “feel the need for expression in almost every case”, like many from the common law side of the tracks, where dissent or separate opinion has become an art-form. Nor, on the other hand, did he treasure “the ideal of apparent judicial unanimity, dear to some Civil Law systems (such as the French)” (Prott, 1984).

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To his judicial work Lachs brought a sense of the arena, where he had always displayed an awareness of context and a degree of interdisciplinary sophistication of the kind that allows the lawyer to operate within a social science framework. Accordingly, he did not see the Court as detached from the purposes enunciated in the UN Charter and from the work of the numerous institutions that make up the UN system. For this lawyer, the role of the Court should be broadly conceived and he was willing to challenge colleagues who took the restrictive, “declaratory” view, such as Fitzmaurice, Gros, Ago, and Petren. Characteristically, Lachs emphasized, in his Separate Opinion in the US Embassy in Tehran Case, that while the Court “is not entitled to oblige the parties to enter into negotiations, its Judgment should where appropriate encourage them to do so as an institution devoted to the cause of peaceful settlement” (ICJ Reports, 1980, Separate Opinion by Judge Lachs). It seems likely that he helped to persuade the majority to recognize approvingly the co-existence of a “dual-track” approach by the UN system, whereby the Court’s action proceeded in parallel with a fact-ﬁnding mission appointed by the UN Secretary-General. Rather than depend on rigid legal concepts, he saw the Court as a “link between law and the realities of life”, as “a guide and supervisor of other organs of the UN” serving a number of functions in the interest of law and justice (Prott, 1984). The role that international law played in the US-Iranian crisis is further displayed in the epilogue. As part of the 1981 negotiated settlement between the two governments (the Algiers Accords), which was facilitated through the intermediary services of the Algerian government, a mechanism was established for deciding claims of US nationals against Iran and of Iranian nationals against the United States: the Iran-United States Claims Tribunal. This mechanism was also given jurisdiction over oﬃcial claims of Iran and the United States against each other arising out of contractual arrangements between them for the purchase and sale of goods and services. In return, the United States agreed to restore the ﬁnancial position of Iran, in so far as possible, to that which existed prior to November 14, 1979 (the date Iranian assets in the US were frozen), and a bank was selected as depository of the escrow and security funds available to satisfy future claims through the Claims Tribunal. Quietly, the United States pledged that “it is and from now on will be the policy of the United States not to intervene, directly or indirectly, politically or militarily, in Iran’s internal aﬀairs” (Iran-United States Claims Tribunal Reports, Vol. 1) – a commitment that would be brought into question two decades later. The Tribunal was unique in several ways, not least as a departure from the common practice in settling claims en bloc through lump-sum payments (Lillich, 1984). The magnitude of the claims was unprecedented in US claims practice, and so also was the origin of the process: the Accords were not the result of bilateral negotiations, but of “indirect negotiations through a third party carried on against a highly charged political background created by a speciﬁc international crisis” (Stewart and Sherman, 1984). So diplomatic immunity, which can be traced back to the most ancient of religions where it enjoyed the protection of vengeful gods, can be the occasional victim of sacrilegious acts and omissions. Lacking divine sanction to-day, the privileged status

International Law in Action

of diplomats depends on wholly secular institutions, and ultimately perhaps on the “juridical conscience” of modern society, which leans more heavily than ever on diplomats as the facilitators of international cooperation. The infamous Iranian hostage crisis began in the vortex of political passions. It ended in a series of highly technical arrangements designed and implemented by international lawyers and other guardians of escrow accounts, not unlike the ending of a scandal-ridden corporation or of a fractious marriage. Reﬂections: It might be thought that the drama of the Iranian hostage crisis reveals international law at work as an “agency of civilization”. However, the concept of civilization has many connotations (Braudel, 1995). The kind of society demanded by the Ayatollah Khomeini and his supporters in the streets of Tehran is certainly civilized to the extent that nationalism is conceded to possess its own legitimacy as a “profound expression of human identities” (Pfaﬀ, 1995). Some writers such as Pfaﬀ have argued that nationalism, which can be “an expression of love as well as hate”, should be distinguished from “tribalism”: the attachment of peoples down the ages to the lands they have traditionally occupied and to the ethnic, linguistic and religious traditions they have shared with their neighbors. International lawyers should have no diﬃculty living in a world of cultural diversity, although, as we shall see later, the concept of an international law of human rights has had to be “de-universalized”, in a very limited degree, to be acceptable across all nations. The serious problem arises when cultural distinctness assumes a nationalistic ethic that pressures or tempts the political leadership of a country to ﬂout fundamental principles of international justice: principles that depend on the free workings of international law and diplomacy. At the time of the Iranian hostages crisis most international lawyers probably saw little reason to challenge the majority approach of the International Court of Justice. The Iranian government was condemned in world opinion as a violator of international law. It was guilty of sacrilege for failing so conspicuously to honor a basic legal principle: the privilege or immunity of diplomatic agents. Most, almost certainly, felt it was appropriate for an international tribunal to limit its function to re-aﬃrmation of the fundamental nature of the principle dishonored and condemnation of the transgressor. A balancing out of the “equities of the situation” would have involved a crossing of the traditional juridical line between “law” and “politics”. To-day, two decades later, a greater variance of legal opinion might be expected in a similar factual situation. None in the international legal community would be likely to dispute the centrality of the immunity aspect of the case, but more to-day might be added to the analysis, at least as far as the community of academic commentators is concerned. Modern commentary would veer oﬀ in two diﬀerent, even opposite, directions. First, some contemporary jurists, who favor a “scientiﬁc” or strictly juridical approach to international law, limiting themselves to the realm of “legal principles”, might be expected to compare the principle of diplomatic privilege or immunity with other principles in order to establish its “primacy’ within a hierarchical system of legal norms. Especially those who specialize in the international law of human rights often ﬁnd it useful, if not necessary, to confront the notion that all “established” legal

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norms are of equal weight. They cannot all be characterized as “basic”. Once we embark on this task of diﬀerentiation, logic seems to take us into a diﬃcult conceptual world of diﬀerential normativity. If the United States was, in fact, guilty of illegal interference in the internal affairs of Iran, which would presumably have been argued by Iran if it had participated in the proceedings, the reference would have been to alleged infringements of principles contained in the Charter of the United Nations, the most authoritative “constitutional” instrument of the world community. Could the ancient principle of diplomatic privilege, based on reciprocity, be conceded a higher status than that of non-interference, which might be considered a basic principle of contemporary international charter law? Conceptualists uncomfortable with the direction this kind of argument seems to be taking them might be embarrassed by the logical necessity of downgrading what is generally regarded as a basic principle of United Nations law. A more modern analysis could be further enriched by “policy-oriented” jurists who, unlike the “rules-oriented” lawyers, see international law much more broadly as a process of constantly shifting claims and counterclaims within a context such as this that reﬂects a tension between strictly legal principles, on the one hand, and “world order values” on the other hand. In an age of increasingly frequent references to the ethical purposes of the international legal system, interference can no longer be considered necessarily an evil. Most ethicists in the ﬁeld of international law today tend to downgrade the status of the basic principle of state sovereignty, which is of course the “value” protected by the UN Charter principle of non-interference. Over the last two decades there have been many examples of “humanitarian intervention”, mostly under the auspices of the United Nations, whose own charter seems to prohibit international involvement in matters that fall within the “domestic jurisdiction” of the sovereign state. So policy-oriented lawyers could point to a new ethos in the world community that permits, and sometimes even requires, external interference or intervention in the aﬀairs of a state whose government is oppressing its people by depriving them of their entitlements under international standards of democracy, justice, and the rule of law. Because of the dangers inherent in this interventionist line of reasoning, most international lawyers would probably yield to the argument of the legal formalists that intervention based on these grounds is conscionable only when it is authorized multilaterally by the UN Security Council. However, occasionally the Council is unable to agree on such action, and then the question is whether other international organizations can appropriately discharge the “duty to intervene” as a substitute “agency” for the world community. This question of the ethics of intervention is to be taken up at the end of this chapter. It seems best to end this ﬁrst vignette of international law in action by leaving the impression of international law as a normative system of great importance in which legal, moral and civic values and principles interact and compete for primacy within competing institutions that rarely, if ever, escape the impacts of political thought and action. This ﬁrst look at international law in action raises the question what is gained and what is lost when legal issues are divorced from matters of civic morality? Many

International Law in Action

observers would conclude that the civic morality of the Shah’s regime fell below the standard of “international morality”, providing moral justiﬁcation for its overthrow even if it triggered events that brought the new regime equally into disrepute under the new ethic of international law. Over two decades later many outside observers of the Iranian regime that has succeeded the Shah’s would argue that it too has fallen short of the goals of democracy, human rights and social justice. The Revolutionary Republic has created the strictest theocracy in the modern world, a regime opposed to the values associated with liberal democracy (Milani, 1988). It has aligned itself with the cause of terrorism and proved incapable of maintaining a modern economy. In deﬁance of the world community goal of non-proliferation, Iran has apparently also pursued a policy of armament through the acquisition of weapons of mass destruction, creating a threat to international peace in a region uniquely and chronically destabilized by political and religious hatreds. By almost any secular test, it is a revolution that has failed (Amuzegar, 2003). Behind the nationalistic passions of the Iranian hostage crisis lie hidden layers of international law. References have been made to the Vienna Conventions of 1961 and 1963. But how do traditional principles of “customary” international law, such as those of diplomatic immunity and consular privilege, become part of “conventional international law” in treaty form? From the rare case of sacrilege, let us turn to the daily realities of the “pact” in world aﬀairs. Pact: The Law of Treaties International law is reputed to be an elusive legal system. Its elusiveness lies not in the diﬃculty of locating its presence in world aﬀairs, but in that of capturing its essence in simple but satisfactory deﬁnitions. As we shall see in the next chapter, much of the pre-modern academic literature on international law has been concerned with its credentials as a normative science. Many scholars have portrayed the international legal system as evolving out of customs or “state practice” and put the emphasis on the universality of “customary international law”, whose legitimacy is derived from “natural law”. Such philosophic reasoning has encouraged eﬀorts to build an infrastructure of core concepts that would represent the “bones of the body”. Some natural lawyers have gone further and attempted to develop a philosophy of international law out of a theory of obligation, the obligation of sovereign states to conform with natural justice or universal reason (Verdross and Koeck, 1983). But the majority of theorists in modern times have preferred to adhere to the doctrine of “positive law” and given a pivotal status to consent (Bos, 1983). For them, modern international law is evolving through innumerable acts of state consent that make up the “physiology” of the system: “conventional international law” . Consensualism implies that states, because they are “sovereign” (Wildhaber, 1983), can be bound by a law “outside” themselves only through their direct or indirect grant of consent, expressly or otherwise. Acquiescence may be inferred from long-established custom, but the most convincing evidence of consent is explicit agreement in

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written form. By withholding consent, sovereign states can and do limit the growth of international law. So the treaty has been regarded by positivists as the cornerstone of international law. Those in search of a single grundnorm have found it in the axiom that agreements must be observed: pacta sunt servanda. In truth, the history of international law has always been interlocked with that of treaty-making, so closely that the case can be made that the primary function of diplomacy, ancient and modern, has been the making and maintenance of treaties (Johnston, 1997). But if treaty-making, in the broadest sense, is so important in international relations, how secure is the present system of international law in ensuring treaty-makers that their partners’ promises will be kept? Within what legal framework of established rules and procedures do government negotiators come to the table? What kinds of legal issues tend to arise there, and after the conclusion of negotiations? What remedies are available for a failure to comply with a treaty, or for a “breach”? Are treaties like contracts, or do they have distinctive characteristics that prevent the law of treaties from evolving toward a global “law of contracts”? Technicalities abound in international law, not least in this sector of treaty law. It may be suﬃcient here to focus on four issue-areas that have excited controversy: observance; reservations; ius cogens; and interpretation. However, most readers may be more interested in the process of legal development known as “codiﬁcation”. The story of the law of treaties can begin in late 19th century Europe. The last third of the 19th century was a period of Western ascendancy in world aﬀairs, and a period when Western jurists began to envisage law in general as a “normative science” entitled to the same intellectual status as physics or geology, or at least that of the newer but “softer” sciences of economics and political science. Lawyers were denied by their discipline the challenge of empirical investigation and the excitement of creating new, universally valid, “knowledge”, but many as early as the 1860’s believed that the structure of their subject could be developed “scientiﬁcally”. Laws that seem uncertain, inconsistent, or just untidy could be placed on the road to formal perfection through codiﬁcation. In most countries of Europe the “civil law” jurists of the late 19th century were acutely aware of their heritage as descendants of the great – indeed peerless – legal system developed by the Romans two thousand years back, when most other civilizations were still struggling with primitive and arbitrary modes of rule. The ancient Romans introduced the world to a legal order that was so pervasive that it provided the assurance of rights and duties, and responsible legal institutions, for every citizen, and even, to a carefully modiﬁed degree, to non-citizens too. No culture since then has come so close to creating a structurally perfect legal system; and, until the age of American legalism, none has reveled so strenuously in the exciting business of litigation. To the civil lawyers of the European countries that derived their law from the ancient Romans, perfection in legal structure depended, sooner or later, on codiﬁcation, as Tribonian and other jurists commissioned by Justinian had shown in the 6th century A.D. So it was logical to expect the “science” of international law to be advanced through a comparably systematic consolidation of legal rules and principles. The goal

International Law in Action

of structural perfection seemed clear to those jurists, such as the Swiss scholar Johann Bluntschli (1808-1881), whose codiﬁed “civil law” systems were descended from the original model of codiﬁed Roman law (Koskenniemi, 2001). The goal of a codiﬁed system of international law was also appealing to non-European enthusiasts such as the American philanthropist David Dudley Field (1805-1894), and to a growing number of “common-law” jurists in the Anglo-American world. On the other hand, the cause of codiﬁcation met with resistance from conservatives in the common-law community, and from skeptical civilians such as the “eccentric” natural lawyer James Lorimer of Scotland (1818-1890), whose uncodiﬁed “hybrid” legal system had been built in the late Middle Ages on the basis of the Roman-Dutch legal tradition (Johnston, 1978). But the late 19th century lacked the institutional means to carry out such a boldly global intergovernmental venture. The ﬁrst opportunity to chance such a venture came with the League of Nations, whose creation in 1919 inaugurated the “organizational” phase of international law and diplomacy, as a second layer on top of the original “transactional” phase. Previous conferences had attempted the codiﬁcation of parts of international law, notably the Second Peace Conference held at The Hague in 1907, which produced the ﬁrst codiﬁcation of the law of war. But the League’s initiative in 1930 was the ﬁrst time that governments had sent their plenipotentiaries to a conference designed speciﬁcally and exclusively for the codiﬁcation of international law in general. No less than 48 states were represented; the bulk of the membership of the League; almost all of the participants at the 1899 Peace Conference; and all but eleven of the states attending the 1907 Peace Conference (Hudson, 1930). The three topics designated as suﬃciently “ripe for codiﬁcation” were: nationality, territorial waters, and the responsibility of states for damage done in their territory to the persons or property of foreigners. The four-week meeting, which was preceded by only three sessions of the Preparatory Committee, was not an unqualiﬁed success, perhaps because some of the participants did not believe in codiﬁcation (Rosenne, 1975). The work of the Committee of Experts between 1925 and 1928 had “not inspired complete conﬁdence” (Hudson, 1930), and it was evident that the subjects chosen were not as ripe as hoped by the Committee. In the future, Hudson suggested, forward movement would require sustained campaigns on three fronts: by the Secretariat of the League and international committees; by the governments; and by jurists and scholars. Each of these armies, it was sensed, would march to the beat of a diﬀerent drummer. Convinced of the “scientiﬁc” nature of the tasks involved, Hudson had no doubt that future eﬀorts would be “crippled” unless scholars and jurists could be mobilized. Even at this early stage in the history of eﬀorts to codify international law, it was understood that the distinction between “legal” and “political” was sometimes tenuous. The diﬃculties over nationality, for example, arose essentially from the political nature of the subject. Now, several generations later, we know how diﬃcult it is to make progress in all of these sectors, as we shall see in due course. Taking the politics out of codiﬁcation has proved to be a formidable undertaking. In 1927, with the beneﬁt of scientiﬁc detachment, the faculty members of Harvard Law School led by Professor Manley O. Hudson began to organize a nation-wide team

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project with a view to preparing draft conventions on all nine of the subjects placed on the agenda for The Hague Codiﬁcation Conference of 1930: namely, nationality, state responsibility for injuries to foreigners, territorial waters, diplomatic privileges and immunities, legal position and functions of consuls, competence of courts in regard to foreign states, piracy, extradition, jurisdiction with respect to crime, and the law of treaties. It is the last of these, and arguably the most important, that deserves our special attention. But, after the third phase of the work of the Harvard “Research in International Law” team, it was decided to add further topics to this ambitious project: judicial assistance, neutrality in naval and aerial war, recognition of states, and the rights and duties of states in case of aggression. The authors and advisers associated with all of these impressive Harvard Drafts included virtually every international law expert of any standing in the United States: 63 in number. The foundational status of treaty obligations in international law seems, in retrospect, not to have given the law of treaties any particular priority in the early years of codiﬁcation. Not everyone felt it was essential to have a “treaty on treaties”. A detailed study of the law of treaties was presented as one of the Harvard Drafts by a team of 18 American experts and their reporter, James W. Garner (Supplement to American Journal of International Law, Vol. 29, 1935). The authors of this study suggested that the lack of a “clear and well deﬁned law of treaties” was due to the fact that “the making of treaties is for the most part in the hands of persons who are not experts and whose habits lead them to seek results with little regard for legal forms”. It was pointed out that in international practice numerous terms other than “treaty” are used to designate international agreements (“convention”, “protocol”, “declaration”, “arrangement”, “act”, “covenant”, “statute”, and many others), but rarely, if ever, does the choice of appellation have any speciﬁc legal signiﬁcance. Agreements intended by the parties to bind are binding regardless of the nomenclature applied to the instruments. As summarized by the League’s Committee of Experts, “the choice of nomenclature and form is governed by arbitrary considerations and depends upon the nature of the relations between States, the custom of the respective chancelleries, and sometimes even upon the carelessness of those who draft diplomatic instruments”. In American treaty practice, on the other hand, a clear legal distinction exists between “treaties” and other international agreements. The former are instruments whose ratiﬁcation by the President under the US Constitution requires the advice and consent of the Senate by a two-thirds majority. Instruments classiﬁed otherwise by the US government, such as “executive agreements” and occasionally “conventions”, are not constitutionally subject to Senate approval. Earlier in the 1930’s an equally intense interest in treaties had been displayed by European scholars. One of these in particular deserves attention. Arnold D. McNair, while still a Senior Tutor at Cambridge, published an article that drew attention to the growing variety as well as volume of international agreements and to the problems arising from this modern phenomenon . For example, he distinguished “treaties having the character of contracts” from three other categories: “treaties having the character of conveyances”, “law-making treaties”, and “treaties akin to charters of incorporation”. In conclusion, he suggested the need to free international lawyers from “the traditional notion that the instrument known as the treaty is governed by a

International Law in Action

single set of rules, however inadequate”. Instead, he argued, it is important to “study the greatly diﬀering legal character of the several kinds of treaties and to frame rules appropriate to the character of each kind” (McNair, 1930). In short, uniformity had no particular virtue. The formalistic analogy between treaty and contract was suspect. Functionalism, not formalism, should prevail. Even then it was becoming apparent that the international law community would soon have to confront the threat to formalism posed by the rapidly growing diversity of international instruments and of the diﬀerent functions they are designed to serve. Not least, it would be necessary for international law to respond to the growth of multilateral instruments being negotiated through international organizations: agreements that bear remarkably little resemblance to bilateral contracts (United Nations, 1985; Wiktor, 1998). Even though the Hague Peace Conferences of 1899 and 1907 and the Codiﬁcation Conference of 1930 are often criticized as failures, they can be said to have appealed to the idealistic strain of the public imagination (Sinclair, 1987). One of the reasons for the failure of codiﬁcation in that period was confusion about the purpose of codiﬁcation. Should it be limited to an agreed statement of existing rules (codiﬁcation proper), or should it go beyond to the laying down of new or extended rules (progressive development of international law)? This issue divided politicians and publics as well as experts, but immediately after the Second World War interest in codiﬁcation revived. Article 13 (1) (a) of the UN Charter called for further eﬀorts of both kinds: “progressive development of international law as well as its codiﬁcation”. Very quickly, the UN General Assembly accepted the recommendation to establish a permanent codiﬁcation panel, the International Law Commission (ILC) (Sinclair, 1987; Briggs, 1965; Ramcharan, 1977). Since then the ILC has operated continuously as a subsidiary organ of the UN General Assembly with a mandate to report annually to the Sixth (Legal) Committee of the Assembly. At one of its ﬁrst meetings, the Commission more or less abandoned the attempt to maintain a clear distinction between “codiﬁcation” and “progressive development” projects. The debate over the political-versus-scientiﬁc approach to codiﬁcation was declared a draw. The Commission membership is elected by the UN General Assembly from individuals nominated by governments “who are persons of recognized competence in international law”, using the same method applicable to the election of judges to the International Court of Justice, but on a part-time, not full-time, basis. A subsequent suggestion by the Commission that it should become a full-time body was rejected by the General Assembly. Over the years since then the Commission’s occasional lapses in productivity have been blamed on the General Assembly’s policy of treating the codiﬁcation and development of international law as a limited function, “on which too much money should not be spent” (Briggs, 1965). The political-versus-scientiﬁc debate on codiﬁcation has been sharpened by the fact that the Commission is inevitably a blend of diplomat-lawyers from government service (the “arena”) and academic lawyers (the “tower”). Members of the ﬁrst category, with a burden of oﬃcial responsibilities, have often found it diﬃcult to attend meetings of the Commission, aggravating the discontinuity inherent in annual sixweek sessions of debate. Those from the tower, on the other hand, are more likely to

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become preoccupied with scholastic combat, technical detail, and theoretical complexity. At its beginning in 1949 the ILC identiﬁed 22 speciﬁc topics for codiﬁcation in the coming years: 1. recognition of states; 2. succession of states and governments; domestic jurisdiction; 3. 4. recognition of acts of foreign states; 5. jurisdiction over foreign states; 6. obligations of territorial jurisdiction; 7. jurisdiction with regard to crimes committed outside national territory; 8. the territorial domain of states; 9. the regime of the high seas; 10. the regime of territorial waters; 11. paciﬁc settlement of international disputes; 12. the law of nationality; 13. the treatment of aliens; 14. extradition; 15. the right of asylum; 16. the law of treaties; 17. diplomatic intercourse and immunities; 18. consular intercourse and immunities; 19. state responsibility; 20. arbitral procedure; 21. the law of war; and 22. neutrality. It was a long list, reﬂecting the ambitious scope of the original enterprise and the UN Secretariat’s perception of how much of international law was suﬃciently “established” to be considered for codiﬁcation. The members in 1949 were from 15 diﬀerent countries; and, even more signiﬁcantly, from three major legal systems (civil law, common law, and socialist law), and of course three political ideologies (communism, capitalism, and non-alignment). To the problem of scale was added the challenge of diversity. At one of the ﬁrst meetings of this body of experts the list of 22 topics was reduced to 14, and of these fourteen the law of treaties was given highest priority. The Commission agreed to proceed by focusing initially on that topic and two others, arbitral procedure and the regime of the high seas, after completing its work on other matters. Professor James L. Brierly, the eminent Oxford jurist, was unanimously appointed Rapporteur for the codiﬁcation of the law of treaties. James Brierly is remembered as a gentlemanly scholar of the classically trained English school of legal positivists, who gave maximum weight to the consensual character of the international legal system. By the early 20th century most of the international law community had moved away from the early view that the tenets of the system are derived from principles of “natural justice”: that is “natural law”. By contrast,

International Law in Action

positivists since the time of Cornelis van Bynkershoek (1673-1743) had maintained that the behavior and practice of sovereign states are the true basis of international law. Rules are valid if they are accepted by sovereign states, whose consent can either be granted or withheld. Perhaps because of his classical training, Brierly liked structural simplicity and looked for symmetry in ideas. In particular, he felt that treaties should be treated formally like contracts, despite the evidence of a trend to multilateral instruments that increasingly take on a function closer to legislation than to contract in international society. He disliked intellectual clutter and foggy concepts. But the world was becoming more complicated, and some members of the international law elite were less gentlemanly than he. The preliminary report by Brierly (ILC Yearbook, 1950, pp. 222-43) was discussed brieﬂy at the 2nd session of the Commission in June 1950 (ILC Yearbook, 1950, pp. 64-67). Although it took into account the pre-war Harvard Draft Convention on the Law of Treaties and comments by several governments, the Brierly draft ran into trouble immediately. First, it was opposed by Mr. Amado, who challenged the deﬁnitions proposed by Professor Brierly and suggested that the draft was “built on the model of the British legal system”, instead of expressing “the unanimous views of the various legal systems”. Other members of the Commission joined the attack, some on the ground that it was too ﬂexible or too English. One critic objected to the Rapporteur’s use of a general deﬁnition for the purpose of bringing treaties and exchanges of notes “under the same rule”: the opposite of the position taken by Arnold McNair, Brierly’s British compatriot, in his famous article of 1930! The views of the American chairman, Manley O. Hudson, were put forward forcefully, widening the gulf opening up within the Anglo-American section of the Commission. Hudson’s comments were partly inﬂuenced by American treaty practice and the US constitutional distinction between a “treaty” and other international agreements, but partly also by his “strong functionalist” objection to Brierly’s ﬂat assertion that a treaty was a contract. Hudson took strong exception to the assimilation of treaties and “agreements concluded by exchange of notes”. He deplored the “lamentable deterioration” that had been taking place in the “legal situation”, which allowed “agreements of the greatest importance”, such as the Munich, Yalta and Moscow Agreements, to be “concluded without ratiﬁcation and without the public consulted”. To his regret, Brierly’s report “sanctioned that deterioration”. Other basic issues emerged to divide the members further. The calmly printed proceedings of the session could hardly conceal the heat of the moment. The long haul had begun. The controversies continued when the Commission re-convened in May 1951, this time chaired by the embattled Brierly. The draft for discussion this time was quite different in content, but the testiness of debate was much the same, often over questions of deﬁnition such as that of “conclusion”. By this time the idea came forward that the law of treaties should be studied in two parts: treaties in the classical sense (which might be analogized with contracts) and “special conventions of the modern type” (such as global law-making or other non-contractual categories), although “certain principles were common to both”. However, the proposal for separate treatment was not well received by the representative of the UN Secretary General. Further dif-

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ﬁculties arose, such as the highly freighted question whether treaty obligations could or should prevail over national constitutions – of the fundamental issues in the debate on the relationship between international and “municipal”(i.e. national) law. The Commission was venturing out into stormy waters, and at the same time was being criticized for degenerating into a drafting committee! At least it was agreed that the work done so far was still “fragmentary”. After two strenuous sessions, the Commission had adopted tentatively only ten draft articles. In failing health, Professor Brierly resigned from the struggle before the 1952 session, but not before preparing a third report on the law of treaties. At the beginning of the 4th session of the Commission, in June 1952, Hudson suggested that their discussions should be summarized, rather than reproduced, but the other members accepted the position of the Secretariat that on matters of substance “the records had to be relatively full if they were to be of value to scholars of international law” (ILC Yearbook, 1952). Some readers might be surprised that the role of the scholar should receive such generous consideration from the Secretariat, but it is worth recalling that the work of codiﬁcation was already understood to be so diﬃcult and time-consuming as to depend very heavily on the input of the “invisible college”: that loosely connected worldwide network of academic experts, who were the modern successors to the “authorities” and even “jurists” of a more pretentious age. Who could point to any other kind of legal system that bears such clear imprints of individual scholars on its making and re-making? This peculiar characteristic of international law is nowhere more important than in the work of the International Law Commission on the codiﬁcation of the law of treaties. At its 4th session, the Commission wisely took refuge from the storm, but in electing a successor to Professor Brierly as Special Rapporteur on this top-priority topic the members had ﬁrst to convince the nominee that the work should be broken down into manageable installments, instead of systematically – and, arguably, scientiﬁcally – in the manner of the Harvard Drafts. Perhaps against his better judgment, and normal Germanic style, Professor Hersch Lauterpacht, who had succeeded Brierly in his British chair, agreed to replace his compatriot also as the Special Rapporteur on the law of pacts. It seemed to be accepted that this slot belonged to the United Kingdom. The choice of Lauterpacht was logical. Few in the ﬁeld would have argued against the proposition that this formidable scholar was one of the leading international lawyers of his era. A Jewish refugee from Germany in the 1930’s, befriended by Arnold McNair, he quickly acquired a position of prominence in British academic circles, becoming eventually the chief spokesman of the “Victorian tradition” of international law based on 19 century liberalism and rationalistic faith in progress (Koskiennemi, “Lauterpacht”, 1997). He would later become editor of the leading general treatise on international law in the English language – the “Gray’s Anatomy” of international law (Lauterpacht, 1955). Later still, his reputation would be further enhanced through his contributions to the work of the International Court of Justice (Fitzmaurice, 1961 and 1962). But would force of intellect be enough to move the ILC through such a bramble bush of obstructions? And would the “installment plan” pressed upon him permit the Commission to achieve a coherent design that would enjoy the consensus

International Law in Action

of so many strong-minded dissidents? As it turned out, we shall never know. After the submission of Lauterpacht’s ﬁrst report on three of the seven parts of the work envisaged in March 1953 (ILC Yearbook, 1953), the 5th session was consumed by other topics (viz., arbitral procedure, nationality, and law of the sea). The 6th session likewise was deﬂected from the law of treaties despite a further, short, supplementary report by Lauterpacht in July 1954 (ILC Yearbook, 1954). In the following months Sir Hersh was elected to the International Court of Justice. In May 1955, at its 7th session, the ILC elected Sir Gerald Fitzmaurice as the Special Rapporteur on treaty law in succession to Lauterpacht, continuing the British occupation of the high ground. The arrival of Fitzmaurice at the ILC is signiﬁcant in at least three ways. First, in the second half of the 20th century no international lawyer was more prominent in the defense of legal formalism. From the beginning, he showed little interest in accommodating those who favored a “loosening” of the law of treaties in order to accommodate the new realities reﬂected in an increasingly ﬂexible pattern of “treaty practice”. Second, his appointment as Special Rapporteur marked a departure from his two predecessors, who were both academics immersed in theoretical issues. Fitzmaurice’s career had been entirely that of a Legal Adviser, a government man. He brought with him a Foreign Oﬃce perspective and a “practical” philosophy which demanded that the rules of treaty law should be kept as simple and basic as possible. Third, Fitzmaurice possessed a rather formidable personality that oﬀered little hope for compromise. The Fitzmaurice report was presented as a “review and synthesis” of the provisions suggested by Brierly and Lauterpacht, which diﬀered not only from one another but also from articles supposedly adopted by the Commission during its 2nd and 3rd sessions. His approach was based on the premise that in certain areas of the law of treaties “often no entirely clear dividing line can be drawn between what are matters of strict law, and what are matters of practice, common usage or protocol” (ILC Yearbook, 1956). From his professional perspective, much was to be said for simplicity in codiﬁcation, even if simpliﬁcation involved black and white distinctions and artiﬁcial resort to analogy. His arrival on the scene marked a new determination to steer the Commission away from endless scholarly, or even scholastic, debate. In government operations, variations from a simple treaty law model could be left to the practitioners as a matter of “treaty practice”. The Commission, somewhat submissively, agreed that Fitzmaurice should continue to develop an expository code rather than a draft convention. Following these lines, Fitzmaurice’s second report was submitted in March 1957 (ILC Yearbook, 1957), but no time could be devoted to it during the 9th session, which was mostly taken up with diplomatic intercourse and immunities. Without the beneﬁt of Commission discussion, the third rapporteur continued with his third report along the same path (ILC Yearbook, 1958), inﬂuenced by the beneﬁts of simplicity inherent in the traditional, but semi-discarded, notion that treaties can be safely assimilated to contracts. March 1959, the topic re-surfaced in the 11th session of the Commission. Several members expressed a wish to take up a discussion on these drafts, particularly the new members who had been elected in 1956 and had not yet had the opportunity to

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express their views, although the law of treaties had been on the Commission’s agenda from the beginning and was reputed to enjoy the status of top priority. For the next three weeks, therefore, the Commission focused once again on several treaty law issues, some of which had vexed the Commission years earlier. By this time, of course, most of the original members had been replaced or succeeded by others. Only six of the original appointees in 1949 were still in place: Ricordo J. Alfaro (Panama), Gilberto Amado (Brazil), J.P.A. Francois (the Netherlands), Hsu Shuhsi (China), A.E.F. Sandstrom (Sweden), and Georges Scelle (France). Moreover, the balance between diﬀerent countries, legal systems and ideologies was now highly questionable, given recent changes in the milieu of the world community. Of the 20 members of the ILC, half were European and four were from Latin America. Three were from Asia, but Mr. Hsu Shuhsi of Taiwan continued to serve in the name of China. None was from Africa. Three were nominated by communist governments (USSR, Yugoslavia and Czechoslovakia). Only three were reﬂectors of the common-law system (United Kingdom, United States and India), whereas nine or ten, or arguably more, had been trained in the civil law or one of its variants. Despite these anomalies, some progress was made based on the Fitzmaurice reports, and in May 1959 it was agreed to refer several of the draft articles to the Drafting Committee. No time was available for discussing the law of treaties at the 12th session, although the 5th report by Fitzmaurice had been made available in March 1960 (ILC Yearbook, 1960). Consular intercourse and immunities dominated the 13th session, but in that year there was another change in the key position: Fitzmaurice, appointed to the International Court of Justice, was succeeded as rapporteur by Sir Humphrey Waldock, also of the British Foreign Oﬃce and presumably sympathetic to the practical approach adopted by Fitzmaurice. During this discussion at the 13th session it had to be resolved how to proceed under the new rapporteur. The ﬁve reports by Fitzmaurice had proceeded on the assumption that they would constitute an expository code based on existing rules rather than a draft convention: essentially a manual on the law of treaties. But now the Commission had seen the successful conclusion of several codiﬁcation exercises in the form of law-making treaties that could be negotiated and concluded at conferences of plenipotentiaries, such as the 1961 and 1963 Vienna Conventions on diplomatic and consular relations. The “political” approach of taking draft articles into the arena as a treaty-making exercise was seen as an opportunity to “universalize” international law, even though it involved incalculable risks of derailment. On the other hand, the 1958 Conference on the Law of the Sea, which had produced four conventions based on ILC draft articles, had shown the reluctance of many governments to sign and ratify such instruments, especially those with novel or politically controversial features. In light of recent geo-political changes, some members had changed their position. For example, Mr. Ago (Italy) had done so “after observing the attitudes of the newly-independent States, which comprised almost half the membership of the international community, and noting their desire to participate in the formulation of rules of international law” (ILC Yearbook, 1961). He had come to the conclusion that the Commission should be much bolder and, in the case of the law of treaties, draft a

International Law in Action

convention, which would be submitted to a plenipotentiary conference, as in the case of the codiﬁcation of the law of the sea. Waldock agreed with Ago that these changes in the world community favored the adoption of conventions rather than “model rules” or codes that were based on restatements of existing rules. The Commission’s work should be required to pass the political tests of the conference arena. Overburdened with other duties, the Commission had been unable to devote much time to the ﬁve reports prepared by Fitzmaurice. Belatedly, many members began to entertain serious reservations about the “expository code’ approach that they had encouraged the third rapporteur to take and the volume of descriptive material he had accumulated over the previous ﬁve years. “Those who, by virtue of their legal background and training, were more accustomed to a process of codiﬁcation involving the establishment of general rules of a normative character were particularly critical of the descriptive and analytical nature of the draft articles” (Sinclair, 1984). So it was decided to change tracks once again, and to prepare draft articles for a law-making treaty on the law of treaties: a “pact on pacts”. The International Law Commission took up the subject of the law of treaties as its principal preoccupation at its 14th session in Geneva in April 1962. This was the mid-winter point in the Cold War, and it is not irrelevant that the chairman of the Commission in that year was Professor Grigory I. Tunkin, the most eminent of all Soviet international lawyers, who would become the author of the leading Soviet treatise in the ﬁeld (Tunkin, 1974). To-day, nothing is left of Marxist-Leninist theory on international law (Macdonald, 1998), but at that time Soviet theorists were still divided over its ideological status, as shown in Anglo-American commentaries (Butler, “Anglo-American Research”, 1980). Those who hewed closest to the logic of Marxist-Leninist class theory saw international law as a tool in the hands of Western bourgeois elites, who were uncommitted to the cause of the international proletariat. Even in the West many international lawyers were prepared to concede that, historically, the international legal system had been used to serve the economic interests of the capitalist countries, not least in the context of modern Iranian political history, as we have seen. But there were also more moderate Soviet theorists who believed that new international law could be forged in the heat of the diplomatic arena so as to be ideologically neutral, based on the principle of reciprocity. By 1962 the ILC had just come successfully through codiﬁcation exercises in the ﬁelds of diplomatic immunity and consular privilege. Professor Tunkin was an ideological moderate, and a champion of the Soviet doctrine that international law should be molded or re-molded so as to serve the geopolitical strategy of “peaceful co-existence”. So it was ﬁtting that the 14th session began with a reminder from the chair that international law had “become a weapon in the struggle for peace and furnished the fundamental legal concepts on which the principle of peaceful coexistence was based and which must be upheld if mankind was not to be plunged into catastrophe” (ILC Yearbook 1962, at p. 1). To hearers with a trained ear, this opening remark from the chair was a shot across the bow, intended to remind the Commission not only that international law was built on political foundations, but also that those with the deepest doubts about its political legitimacy might be expected to take a more radical approach to its “progressive

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development”. Since the emergence of Nikolai Khrushchev in 1956, in the post-Stalinist era, “peaceful coexistence” was the banner for a new generation of marchers, but a concept suﬃciently ﬂexible to divide ideologists at home and abroad (Lapenna, 1963). At ILC and other meetings it would also add a brittle quality to supposedly technical discussions on codiﬁcation (Hazard, 1963). It may be suﬃcient to refer to only four areas of controversy in treaty law that surfaced in the second phase of the ILC’s work, and surfaced also in the course of the conference of plenipotentiaries that met in Vienna to complete the process in May 1969 (Rosenne, 1970). Observance. As noted earlier, conceptualists have long argued the foundational character of the principle that agreements must be observed: pacta sunt servanda. In the simple language of Article 26 of the eventual Vienna Convention on the Law of Treaties, “[e]very treaty in force is binding upon the parties to it, and must be performed by them in good faith. The Commission stressed that the principle of good faith is “a legal principle which forms an integral part of the rule pacta sunt servanda” (ILC Yearbook, 1966). The good faith principle requires that a party comply, to the fullest extent practicable, with its obligations under a treaty as soon as it becomes bound through the agreed-upon acts of consent, usually (in the case of major agreements) by signature alone, by ratiﬁcation after signature, or by accession after entry into force. But diﬃculties can arise by reason of the transcendental language of the state’s own constitution. Many constitutions, for example, ﬁx the state’s boundaries, sometimes in the ocean as well as on land, and it may be politically impossible to bring such provisions into alignment with recent treaties, even one such as the 1982 UN Convention on the Law of the Seas, which can be regarded as having quasi-constitutional status for the world community. Which should prevail? Again, the constitutions of federal states typically contain basic provisions on the allocation of legislative powers between the federal and state/provincial levels of government. Normally, it is the federal government that has the executive authority to negotiate international agreements on behalf of the nation, but such instruments that trench upon law-making domains reserved to the state/provincial authorities raise serious internal diﬃculties of implementation that may delay signature or ratiﬁcation, or both, as we shall see in the case of environmental agreements such as the Kyoto Protocol. The Vienna Convention attempts to deal with this in Article 2: “A party may not invoke the provisions of its internal law as justiﬁcation for its failure to perform a treaty”. This norm would seem to solve the problem by simply transferring it from the external domain to the internal. But it was necessary, as a matter of reality, to add: “This rule is without prejudice to article 46”. Article 46 recognizes only part of the complexity of this difﬁculty by limiting the problem to the matter of treaty-making capacity: “A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”. This hard line may be justiﬁable in the theory of international law, but it means that certain federal states, in constitution-

International Law in Action

ally complicated circumstances, may have particular diﬃculty in participating fully in global treaty-making. Reservations. On the face of things, one way out of the internal-versus-external dilemma is by allowing states with such a dilemma to attach a “reservation” to its signature or ratiﬁcation of a major international agreement: that is, in the language of Article 2 (1)(d) of the 1969 Vienna Convention on the Law of Treaties, a “unilateral statement, however phrased or named, made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal eﬀect of certain provisions of the treaty in their application to the State”. Such a statement is external to the text of a treaty; it is unilateral at the time of its formulation; but it produces no legal eﬀects unless it is accepted, in one way or another, by another state (Sinclair, 1984). Rather obviously, this provision bristles with diﬃculties when applied to multilateral agreements. Some of these were recognized by the ILC and resulted in Article 19, which permits a reservation unless: (a) (b) (c)

the reservation is prohibited by the treaty; the treaty provides that only speciﬁed reservations, which do not include the reservation in question, may be made; or in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

This third criterion, the compatibility test, drawn down from the advisory opinion of the International Court of Justice in the Genocide Convention Case of 1951, has always been controversial because of its inherent subjectivity. Initially, in 1951, the ILC had taken the view that the test was too subjective to be suitable for application to multilateral conventions in general. Some of the parties might accept a reservation and others not, leaving unclear the status of the reserving state in relation to the instrument. Accordingly, the Commission at that time recommended reversion to the traditional rule of unanimity, whereby the consent of all parties was required to admit a reserving state as a party to a treaty subject to reservation. Both Lauterpacht and Fitzmaurice had proposed the unanimity rule, albeit in a manner that allowed a degree of ﬂexibility. However, the Commission changed its position fundamentally after the appointment of Waldock in 1961 and reintroduced the compatibility test, favoring ﬂexibility over certainty. It is this system that has survived in the codiﬁed law of treaties. However, the artiﬁciality of such language must be noted, especially in the case of multi-purpose instruments designed to capture a range of objectives. The growth of such instruments is particularly marked in the many ﬁelds regulated by multilateral conventions and other agreements (United Nations, 1985; Wiktor, 1998). How, for example, would an interpreter characterize the 1982 UN Convention on the Law of the Sea? Common sense suggests that in such complex instruments, “object and purpose” might be found to have taken up residence in speciﬁc sections, not in the text as a whole.

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Most specialists in the law of treaties have agreed for many years that the ILC’s treatment of the diﬃcult topic of reservations is inadequate. Too many important questions remain unanswered. Accordingly, the Commission decided in 1993 to reenter “Reservations to Treaties” on its agenda. Four years later several “preliminary conclusions” were reached on at least some of the issues that have to be addressed, but once again there seems no way of accelerating the slow process to which the Commission is condemned by the chronic underinvestment of human resources (Aust, 2000). Ius Cogens. Political as well as jurisprudential controversy has always accompanied debates on the concept of a “peremptory norm” in international law. As deﬁned in Article 53 of the 1969 Vienna Convention, such a norm exists if it is “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modiﬁed only by a subsequent norm of general international law having the same character”. As its Latin tag (ius cogens) suggests, this concept can be traced to Roman law. The purpose of Article 53 is to aﬃrm that international agreements found to be in conﬂict with a peremptory norm are void. Jurisprudential conﬂict arises from the proposition that certain norms in international law are basic and from the legal criteria to be applied in the identiﬁcation of them. Some writers have argued that the logic of the concept of a basic norm is that all norms should be positioned on a hierarchy consisting of at least two categories: basic and non-basic (Weiler and Paulus, 1997; Koskenniemi, “Hierarchy” 1997). Others have referred to the merit of analogy: speciﬁcally, the recognition that in most civil-law and many common-law jurisdictions, certain types of contracts are by their nature “injurious to society and therefore contrary to public policy” (Sinclair, 1984). But “international public policy” is still struggling for recognition as a legal concept. Political controversy, needless to say, tends to erupt in the arena when it is suggested that certain legal principles or instruments are superior to others. At the Vienna Conference few delegations were prepared to challenge the concept of ius cogens. Some argued that analogy from “municipal” (national) legal systems was inappropriate within the framework of international law, since the world community had no legislature to prescribe which rule was of the character of public policy. Several communist governments expressed the view that ius cogens status should be assigned to such principles as non-aggression, national self-determination, and Articles 1 and 2 of the UN Charter on the purposes and principles of the United Nations. Others opted for the freedom of the high seas and the prohibition of slavery and genocide. Getting universal agreement on such a list has proved impossible, and yet the idea of basic norms, like that of “sacred text”, survives, as we shall see in due course. The passage of time since 1969 has not shortened the lists of suggested candidates for the status of ius cogens. Aust (2002) oﬀers the view that perhaps the only norm universally accepted as peremptory in character is the prohibition on the use of force as prescribed in the UN Charter, but concedes that the prohibitions on genocide, slavery and torture might also be characterized as ius cogens. But why stop there? Some human rights advocates argue that all prohibitions in basic universal human

International Law in Action

rights instruments should enjoy the same status at the apex of the normative hierarchy, because of the diﬃculty of elevating some above others (Frulli, 2001). However, cultural variation is a fact of life in world society, and it seems inevitable that social and legal systems will continue to diﬀer in the weighting of values. The quest for “one world” goes on. Interpretation. Controversy has also animated the age-old debate on treaty interpretation. At the end of the debate in the ILC and at the Vienna Conference, there was general acquiescence to the “general rule” in article 31 that a treaty “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. This may seem reasonable until it is noted that “context” is given a strictly “textual” connotation! Article 31 restricts “context” to the text of the agreement in question, along with its preamble and annexes, and to two other categories of texts: “(a) any agreement relating to the text which was made between all parties in connection with the conclusion of the treaty”; and “(b) any agreement which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty”. The victory of the “textual” approach in the ILC and at the Vienna conference was a victory for formalism and for Sir Gerald Fitzmaurice. In retrospect, the members of the Commission in the 1960’s oﬀered relatively little resistance to the treaty-contract analogy, which rippled through the drafts prepared by Fitzmaurice and his successor Waldock in most areas of this codiﬁcation. Yet functionalists favoring alternative approaches to treaty interpretation over the years have found it easy to criticize the textual or “plain and natural meaning” principle. The functionalist point of view is that literal interpretation must often be supplemented by reference to the “total context”, if the purpose of interpretation is to achieve “the closest possible approximation to the genuine shared expectations of the parties, within the limits established by overriding community policies” (McDougal, Lasswell and Miller, 1967). Numerous formalist scholars and judges have also found the “plain and natural meaning” principle inadequate, including Lauterpacht who asserted that “it is the duty of the judge to resort to all available means … to discover the intention of the parties” (Lauterpacht, 1955). Similar views were expressed by Brierly (1963). So it appears probable that the ILC debate on treaty interpretation would have had a diﬀerent outcome if either of the ﬁrst two rapporteurs had been able to remain at their post. Textualists such as Fitzmaurice have never denied the importance of ascertaining the intention of the parties, but have drawn back from the use of “total context”, which they have likened to the opening of Pandora’s box. It is the fear of opening up controversy over the interpretation of events that seems to explain statements such as Fitzmaurice’s that “texts must be interpreted as they stand, and, prima facie, without reference to extraneous factors” (Fitzmaurice, 1957). Myres S. McDougal, the leading functionalist in the ﬁeld of international law, attended the Vienna conference as a member of the US delegation and tangled with Fitzmaurice over the draft provisions on treaty interpretation, but his campaign to establish a beach-head against the forces of textualism proved to be a bridge too far.

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Some formalists have maintained that the ILC adopted a middle course, in the sense of avoiding the “intention of the parties” and “teleological” (“aims and objects” or “eﬀective”) doctrines of treaty interpretation. It is true at least that the Commission wisely refrained from declaring a victory for the textualists. There is little to be gained by taking an extreme position on interpretation, which is conceded by most lawyers to be an art rather than an exact science. Teleologically inclined functionalists can take comfort in the knowledge that in practice there exist many “supplementary means” of interpretation, such as the preparatory work (travaux preparatoires) of a treaty-making exercise and various legal techniques, which are usually based on commonsense or rules of grammar rather than on binding rules of law (Aust, 2000). More important, the International Court of Justice in recent years has shown a growing interest in the once-reviled “dynamic” or teleological approach to the interpretation of treaties, particularly in the case of charter-like instruments that seem to cry out for broad, ﬂexible treatment. Reﬂections. In almost all matters of codiﬁcation and progressive development, the road that must be taken by the ILC is usually long and winding. If the destination agreed upon should be a meeting of plenipotentiaries to endorse the Commission’s draft articles, the period of debate is only the ﬁrst phase that precedes the conference and the subsequent and protracted period of waiting for the signatures and ratiﬁcations needed to bring the instrument into force under the law of treaties. Since a lawmaking treaty often takes a decade or more to come into eﬀect, the entire process beginning with the ILC may take over a quarter of a century before it transpires as a law-making convention accepted by most states. The codiﬁcation of the law of treaties took over 30 years to reach its ﬁnal consummation through the entry into force of the 1969 Vienna Convention in 1980. Some other topics deemed ripe for codiﬁcation, such as state responsibility, have proved even more resistant to incubation. Such a leisurely tempo is unusual in the modern world, which usually demands results at a livelier pace. Criticism of the Commission, and of the policy that keeps it down to a part-time, summer engagement, has resulted in calls for reform that seem to have gone unheard in the diplomatic community amid the clamor over more pressing aﬀairs. As to the adequacy of the ﬁnal product, international lawyers are bound to disagree. Issues such as ius cogens and reservations will continue to divide natural lawyers and positivists. The Vienna text is likely to be of limited operational value in most situations involving multilateral conventions, where legal diﬃculties will have to be dealt with as a matter of “treaty practice” rather than “treaty law”, as Fitzmaurice insisted. Yet obviously the text will serve as the indispensable starting point in the treatment of treaty-related legal issues arising from binding bilateral inter-state transactions that can be analogized with contracts. As we shall see later, the entire process of treaty-making is undergoing transformation. Now, informal, non-binding instruments easily outnumber traditional instruments of treaty character, and form the mainstream of modern inter-state transactions. Both the volume and variety of contemporary international instruments are overwhelming, requiring diﬃcult eﬀorts to establish a system of classiﬁcation, if in-

International Law in Action

ternational law is to re-capture the complexity of the real world (Johnston, 1997). Moreover, the trend to “soft law” norms, instruments and even institutions, and to informal as well as formal regimes, underscores the inadequacy of the Vienna model as a reﬂector of how the world community actually deals with the operational dilemmas of consent and commitment (Shelton, 2001; Miles and others, 2002). The reader may not be surprised to learn that new issues have come to the forefront of debate on the law of treaties since the ILC marathon was completed in 1969 (Rosenne, 1989; Reuter, 1989). For example, the Commission dealt only marginally with the basic question whether there are certain treaties of such special foundational importance to the world community as a whole that they constitute a valid or binding “objective regime” for all (erga omnes), parties and non-parties alike (Chinkin, 1993). Several modern treaties have been considered generative of third party rights and obligation in deﬁance of the principle of consent at the core of the international law system. These include multilateral instruments designed to guarantee freedom of navigation through speciﬁc international waterways (eg Suez Canal, Turkish Straits, Straits of Magellan). Even more recently, instruments such as the Antarctic Treaty (1959) and various space law treaties have been considered creative of “objective regimes” that extend automatically, without the need for consent, to all members of the world community, just as certain basic rights and obligations set out in the UN Charter extend to non-members of the Organization. Those most anxious to retain the consensual foundations of international law are, of course, nervous about the possible abuse of such doctrine. Yet those who advocate eﬀorts to develop “world law” on ethical grounds insist on the need for “progressivism” of precisely that kind. Regulation: Transportation Perhaps the most basic beneﬁt of law is the establishment and preservation of order. World society has often been characterized as “anarchic” (Bull, 1977). How well has international law served world society as a regulator? Political scientists like Bull see anarchy as the dominant characteristic of international relations because there is no one global institutional authority whose will can be exerted over the process of national decision-making. Neither a world government, nor a world parliament. The global “system” of sovereign states, collateral in structure, is not always conspicuously systemic. Its viability depends upon routine intergovernmental interactions that are cooperative in nature, but subject at any time to a failure or withdrawal of will by any one of 188 sovereign states. The eﬀectiveness of international law as an ordering of human society can be evaluated by examining the record of international organizations. Intergovernmental organizations preceded the League of Nations. In the 19th century it became recognized by internationalists that state sovereignty – the cornerstone of traditional international law – was, in its absolutist form, a blockage to inter-state cooperation. If the modern system of nation-states was to improve the prospect of shareable beneﬁts to humanity in general, there would have to be a movement toward a system of international organizations. After the Congress of Vienna in 1815 this vision of an institutionalized ethic of cooperative behavior gradually became a reality. This movement,

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in the words of Inis Claude (1971), “reﬂected the conviction that it had become necessary and possible to modify the free-wheeling irresponsibility of sovereign states to a greater extent than had been done under traditional international law and to remedy the international institutional vacuum by creating and putting to work some agencies which would serve the community of states as a whole”. No “iconoclastic reaction to the sacred principle of sovereignty” developed. Diplomacy by conference had become “an established fact of life” in the 19th century. In that century, great powers assumed a formal ascendancy in world aﬀairs, but it was also an era of numerous conferences devoted to the maintenance of peace, the establishment of peaceful means of dispute settlement, and the beginning of what might be characterized as “international legislation” despite the absence of a legislative body at the world community level. Trust had to be placed in process rather than structure, and in the emergence of multiple bureaucracies and secretariats staﬀed by international civil servants devoted to the global public interest. As we shall see later, this movement to international organization began in Europe: in the Concert of Europe and The Hague System designed to deal with “high political” issues. But after 1850 a third type of organizational eﬀort emerged in technical and administrative sectors of government such as telegraphy and postal communications, where the nation-state was seen to be too small to serve as the appropriate administrative unit. As the idea of international regulation took root, it blossomed out into diverse other ﬁelds: international lakes and rivers, railways, agriculture, health, weights and measures, patents and copyrights, tariﬀs, narcotic drugs, and prison conditions. By the late 20th century the world community had acquired thousands of international organizations and secretariats serving almost every sector of world society (Weiss, 1975). By then, however, it had become apparent that at least some of the rigidities predicted by Max Weber and others had descended upon the culture of international bureaucracy. Since the 1960’s in particular, more and more non-governmental institutions have mushroomed, constituting another layer of the “world community”. In recent years it has become necessary in many contexts to look for solutions in “governance”, rather than “government”: that is, in alliances, however uncomfortable, of state and as non-state institutions – in international “regimes” (Haas, 1975) as well as organizations. But let us look only at the earlier history of eﬀorts to use international law and organization to regulate two of the most basic industries: aviation and shipping. Aviation. Most of us are air travelers from time to time. Yet we are barely aware of the vast, world-wide, legal framework that serves the aviation industry. Few, if any, regulatory systems are entirely frictionless in their operation, especially at the global level where the maintenance of standards is bound to be a daily problem. So how trusting should we be, as we take to the air, that the nearly-invisible, international law of aviation will save us from harm and unnecessary cost? First, it should be recalled how modern aviation is in origin. The industry was quite modest in size until after the Second World War. Since then its growth has been phenomenal, particularly after the introduction of jet-propelled aircraft in the late

International Law in Action

1950’s and of wide-bodied aircraft in the late 1960’s. In the late 1990’s the total annual value of international air transport services was estimated around 250 billion (US) (Zacher, 1996). By then the world system of air transport consisted of 950 commercial carriers operating 12 billion ﬂights annually out of almost 16,000 airports (Sochor, 1991). In recent years the industry has encountered strong headwinds, and the need for basic change in its structure and design is accepted by most within the industry and in the relevant sectors of government. Second, aviation is essentially an international industry. It does not respond well to narrow nationalistic interests. Many states try to maintain their own, publiclyfunded airlines in the teeth of ﬁerce international competition in the market-place. But national prestige comes at a price. The market favors an international approach: airlines want it to secure stability and to limit market risk; consumers want it to enjoy the beneﬁts of cheap and convenient ﬂights at a satisfactory level of safety and eﬃciency; airport cities do not care which airlines provide that satisfaction; and the rest of the travel industry wants cheaper fares in order to encourage people to ﬂy and to spend more money on the ground (Hight, 1981). But the eﬀective internationalization of aviation depends on eﬀective international laws and arrangements. Air law (or aeronautical law) can be divided into national and international components, but the latter are always paramount. Even in the course of domestic ﬂights, international regulations abound. The air traﬃc industry is virtually borderless. Although the superjacent airspace above land territory and the territorial sea is “national”, elaborate measures have been taken to guarantee a number of international freedoms of use, albeit subject to a voluminous array of controls, but controls that are also mostly international in origin. The system of aviation rules is incredibly complex, consisting of six categories: (i) multilateral conventions; (ii) bilateral agreements; (iii) national laws; (iv) contracts between states and airlines; (v) contracts between airlines; and (vi) general principles of international law (Diederiks – Verschoor, 1997). Airspace is used by military as well as civil aircraft, but military aviation is governed in a diﬀerent, less cooperative, fashion and falls outside the usual limits of air law. To the extent that the world’s aviation system rests on general principles of international law, it rests on a balance between the principle of sovereignty and the right of “innocent transit”. This can be analogized with the law-of-the-sea regime of the territorial sea, which for over two centuries has pivoted on the sovereignty of the coastal state subject to the long-accepted right of “innocent passage” conceded to foreign vessels in transit through the territorial sea of all states, without discrimination. In both cases the exception represents a major qualiﬁcation of sovereignty, but the absolute conception of sovereignty has long since been abandoned, if indeed it ever existed, in the theory of international law. Any notion to the contrary might be described politely as a “legal ﬁction”. There is an analogy, but not an equivalence, between national airspace and the territorial sea. Both are trade-routes that should be open, without restriction, in the interest of world commerce and human convenience. But not all states, even to-day, are willing to apply this logic to their airspace, usually because of concerns, real or imaginary, about national security, or because the subjacent state sees access to or through

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its airspace as a bargaining chip. For many governments, the basic norm in aviation is the principle of reciprocity. At one time in the history of the law of the sea, it was argued in favor of a three-mile territorial sea that it should be three nautical miles in breadth so as to correspond with the maximum range of gunﬁre from a hostile foreign warship: the “cannon-shot rule”. As the sophistication of naval technology advanced, the popularity of this functionalist rationale receded. In the present age of inter-continental missiles, the same logic of security-at-all-costs applied to airspace may be softening. But security, like risk, is perceptual as well as actual. Many states wish to preserve the appearance or illusion of total control over their airspace. The question of sovereignty in the air is complicated by the presence of “practical inﬁnity” beyond the outermost limits of airspace. Most international lawyers believe – as a matter of commonsense, not common law – that the deﬁnition of airspace should be linked with the presence of atmosphere suﬃciently dense to support navigation by conventional aircraft. In the stratosphere and beyond, the regime of airspace gives way to that of “outer space”, the domain occupied by space craft outside the pull of gravitation. So those of commonsense – functionalists or not – may reason that the concept of qualiﬁed national sovereignty over airspace should be the legal foundation of the world’s aviation system. The separate legal literatures on airspace and outer space have been enlivened over the years by ingenious arguments and counter-arguments over the issue of air boundaries. Where, if at all, should the boundary be drawn between the two domains- the atmospheric and the extra-atmospheric? This issue has been put down as “academic” in nature, and not admitted to the highest level of priorities on the world community agenda, but, as we shall see later, it is coming back. The ﬁrst eﬀort to negotiate an international agreement on air navigation was made as early as 1910. Conﬂicting notions were oﬀered on where the balance should be struck between freedom of ﬂight and the territorial security of the subjacent state. The German and French delegations, headed by lawyers, argued for freedom; the British, commanded by an admiral, spoke forcibly in favor of state sovereignty. No agreement was forthcoming, but later events would show that the concern for security would place severe constraints on the ideal of freedom of ﬂight (Sochor, 1991). The ﬁrst multilateral convention in this ﬁeld was the Paris Convention – the Convention Relating to the Regulation of Aerial Navigation – which was concluded in 1919 and attracted 32 ratiﬁcations, while aviation was still an infant industry. Although each state was recognized as possessing complete and exclusive sovereignty over the airspace above its territory, the Paris Convention created the International Commission for Air Navigation, which was given regulatory authority over a wide area of technical matters. In the interest of uniformity some technical annexes were attached to the Convention covering such concerns as standards of airworthiness and certiﬁcates of competency for crew members. Regional conventions with more or less similar purposes were concluded in the 1920’s, and other steps were taken to lay the foundation of international air law. However, the true beginning of a world system for the regulation of airspace began near the end of the Second World War with the conclusion of the 1944 Chicago Convention in International Civil Aviation. At that time there were conﬂicting ideas

International Law in Action

on how to establish an international legal order for civil aviation, creating a controversy among the wartime Allies that became so serious that it forced a confrontation between Churchill and Roosevelt in the ﬁnal critical stages of the Second World War. The British and Canadians, for example, proposed the creation of an international organization to co-ordinate air transport, to allocate routes around the world and to prescribe frequencies and tariﬀs. The Australians and New Zealanders called, more radically, for the internationalization of all major airlines under the control of a single world authority. The Canadians, as usual, concentrated on compromise, a policy that would tolerate some competition on limited operations but include a multilateral institution to allocate routes, review rates and determine additional frequencies. However, it was the American proposal for an “open sky” charter, supported by the Netherlands and the Scandinavian and other smaller countries, that seemed to have carried the day, based on the idea of freedom of competition in air transport, but limited to the ﬁrst two of the “Five-Freedoms” approach described below (Sochor, 1991; Abeyratne, 1996; Cheng, 1981). In looking back at the Chicago conference, some scholars such as Sochor (1991) have questioned the US commitment to an “open sky” policy, “since it is hard to recognize any such idealistic stance in the bilateral bargaining which followed the conference”. Others have noted also that when the United States had to adjust to the necessity for reciprocity in order to create stable commercial relations in the postwar aviation industry, it had no choice but to abandon – or at least suspend – its dream of an open sky. Let us look more closely at the principal features of the Chicago system, since they still represent the building blocks for the global regime of international civil aviation. First, the system has always been envisaged as truly universal. Even in the ﬁnal year of the war, when priorities were still aﬀected by hostile alignments, the planning was for a very diﬀerent, more peaceful, world: a blueprint for global cooperation, like the United Nations itself. Even at the war-time founding conference no less than 54 delegations attended. Second, the Chicago Convention was both constitutive and economic in purpose, designed to bring into existence a world body to “develop” international civil aviation in a “safe and orderly manner”, so that air transport services may be established “on the basis of equality of opportunity and operated soundly and economically”, in the language of the preamble. Third, the Chicago Convention followed its predecessor, the 1919 Paris Convention, by recognizing that every state has “complete and exclusive sovereign over the airspace above its territory”, but in truth the sovereignty in question is modiﬁed by the demands of the system. Under Article 6, no scheduled international air service “may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization”. In the case of unscheduled (i.e. charter or emergency) services, on the other hand, Article 5 recognizes the right of all aircraft of the contracting parties to make ﬂights into the territorial airspace non-stop, or to make steps for non-traﬃc purposes “without the necessity of obtaining prior permission, and subject to the right of the State ﬂown over to require landing”.

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Fourth, under Article 9 each contracting state “may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from ﬂying over certain areas of its territory, provided that no distinction in this respect is made between the aircraft of the State whose territory is involved, engaged in international scheduled airline services, and the aircraft of the other contracting States likewise engaged. Such prohibited areas shall be of reasonable extent and location so as not to interfere unnecessarily with air navigation”. Each contracting State reserves also the right, in exceptional circumstances or during a period of emergency, or in the interest of public safety, and with immediate eﬀect, temporarily to restrict or prohibit ﬂying over the whole or any part of its territory, on condition that such restriction or prohibition shall be applicable without distinction of nationality to aircraft of all other States”. Fifth, each party to the Convention is obligated by Article 12 to “adopt measures to insure that every aircraft ﬂying over or maneuvering within it territory … shall comply with the rules and regulations relating to the ﬂight and maneuver of aircraft there in force”: that is, the “rules of the air”. Each party undertakes to “keep its own regulations in these respects uniform to the greatest possible extent, with those established from time to time under this Convention”. Sixth, Chapter V requires that every aircraft of a contracting state engaged in international navigation shall carry various speciﬁed documents, such as a certiﬁcate of registration, a certiﬁcate of airworthiness, a journal logbook, a passenger list (in the case of a passenger ﬂight) with details of places of embarkation and destination, a cargo manifest (in the case of a freight ﬂight), and so on. Seventh, Part II of the Chicago Convention creates the International Civil Aviation Organization (ICAO), with the following nine aims and objectives: a) b) c) d) e) f) g) h) i)

Insure the safe and orderly growth of international civil aviation throughout the world; Encourage the arts of aircraft design and operation for peaceful purposes; Encourage the development of airways, airports and air navigation facilities for international civil aviation; Meet the needs of the peoples of the world for safe, regular, eﬃcient and economical air transport: Prevent economic waste caused by unreasonable competition; Insure that the rights of contracting States are fully respected and that every contracting State has a fair opportunity to operate international airlines; Avoid discrimination between contracting States; Promote safety of ﬂight in international air navigation; and Promote generally the development of all aspects of international civil aeronautics.

Moreover, under Article 37 ICAO is authorized to “adopt and amend from time to time, as may be necessary, international standards and recommended practices and procedures” dealing with a wide range of matters, including communications and air navigation aids, rules of the air and air traﬃc control practices, air worthiness, collection and exchange of meteorological information, customs and immigration

International Law in Action

procedures, and accident investigations. Technical Annexes on all of these and other matters under Article 37 are attached to the Convention. In addition to the Chicago Convention, the 1944 conference concluded two more instruments: the International Air Services Agreement (the “Transit Agreement”) and the International Air Transport Agreement. The former was known as the “TwoFreedoms Agreement” and the latter as the “Five-Freedoms Agreement”. Since 1944 the former has survived as the generally accepted foundation of the jurisdictional principles of aviation; the latter is now virtually “dead-letter”, although still the preference of a number of states. The ﬁrst two freedoms are the “transit right” of non-military aircraft to pass through sovereign airspace to shorten the distance of a ﬂight and the right to stop for “non-traﬃc” (i.e. technical assistance) purposes. The third and fourth freedoms of the air are the “traﬃc rights” of airlines to ﬂy back and forth between their state of registry and another state, in order to put down or take on “passengers, mail or cargo”. The ﬁfth freedom is the traﬃc right of an airline to ﬂy between two foreign states on a route beginning or ending in the aircraft’s state of registry. Article 6 of the Chicago Convention acknowledges a serious “gap” in the system: its inability to deal with the problem of exchanging traﬃc rights for the airlines of the contracting states to operate commercial scheduled international air services either through or into one another’s country (Cheng 1981). At the Chicago conference in 1944 states unwilling to sign either the “Two-Freedoms Agreement” or the “FiveFreedoms Agreement” were required to enter into a bilateral agreements with one another to secure these entitlements on a reciprocal basis (Pamborides, 1999). In addition to the Chicago Five, three other freedoms have surfaced to complicate the situation further. The “sixth freedom” provides that an airline has the right to carry traﬃc between any two foreign states through its own state of registry. The “seventh freedom” allows airlines operating airlines entirely outside the territory of its state of registry to ﬂy into the territory of another state and there discharge, or take on, traﬃc coming from, or destined for, a third state or states. The “eighth freedom” would permit “cabotage”: the operation of air services between two points in the same state other than the state of registry, which was prohibited by Article 6 of the Chicago Convention. On these jurisdictional issues, which create the “gap” in the system, nations are deeply divided: bilateralists, multilateralists, and plurilateralists. Which faction will be likely to prevail, as the industry undergoes restructuring, is a question to which we shall return later in this history of international law. In the meantime, it may be noted that only the ﬁrst two freedoms can be said to command the allegiance of most nation states as general principles of international aviation law. The future of the debate on these other jurisdictional proposals will depend on the outcome of current economic eﬀorts to restructure the aviation industry. In technical (i.e. non-jurisdictional) matters, the ICAO membership of states has proven as capable of adapting to changing events as the aviation industry itself, which, of course, is forced by market forces to respond to constant changes in technology, economics, environment, and politics. The technical sophistication of the industry has extracted a special eﬀort by governments and the Secretariat of ICAO to produce a regulatory regime of matching sophistication. ICAO experience supports

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the argument that the charter of an international organization can evolve in response to new demands as promptly and appropriately as almost any national constitution (Buergenthal, 1969). Another central component of the regime governing international civil aviation is the Warsaw Convention: the Convention for the Uniﬁcation of Certain Rules Relating to International Carriage by Air, which was concluded at Warsaw in October 1929, and then amended at The Hague in September 1955. The “Warsaw system”, which consists also of other multilateral instruments, variously accepted, represents a worldwide eﬀort to unify the aviation rules of various national jurisdictions. Uniﬁcation, unlike the codiﬁcation of international law, begins with existing national rules that do not coincide and sometimes give rise to serious legal conﬂicts. But for uniﬁcation instruments such as those associated with the Warsaw system, gross anomalies and uncertainties would exist in private (commercial) law governing such matters as the liability of international air carriers (Mankiewicz, 1981). In addition, reference must be made to the International Air Transport Association (IATA), whose predecessor, the International Air Traﬃc Association, was originally established by six airlines in August 1919. IATA was created in 1945. Its main aims and objectives, unlike ICAO’s, are commercial and technical: a) to promote safe, regular and economical air transport for the beneﬁt of the peoples of the world, to foster air commerce, and to study the problems connected therewith; b) to provide means for collaboration among the airline enterprises engaged directly or indirectly in international transport service; and c) to co-operate with ICAO and other international organizations. Because its mandate requires coordination between the public and private sectors, IATA deﬁes easy classiﬁcation. Like the World Conservation Union (IUCN) and the International Labour Organization (ILO), it has both governmental and non-governmental members. From a functionalist perspective, it might be regarded as a “hybrid” or “quasi-governmental” organization (Chuang, 1972). One of IATA’s functions is to act as a “clearing house” for accounts between the airlines that are members of the Association, but non-IATA members can also qualify for this service. Another activity is the ﬁxing of tariﬀ rates for international air transport through Resolutions and Recommendations adopted by IATA’s Traﬃc Conferences. Such Resolutions require unanimous approval by Conference members and become binding on the member airlines when endorsed by their government. Government endorsement is by no means automatic when the airline in question is state-owned. So a close liaison between IATA and the governments through ICAO is a pre-requisite for the eﬀective regulation of the world aviation industry. Not all international airlines have chosen to join IATA. By 1981 its membership was limited to 85 active member companies. There were some competitive advantages in staying outside the cartel’s system of rate-making, even although IATA is empowered only to make recommendations to governments, which have frequently seen ﬁt to veto IATA fare proposals. In addition to the Chicago and Warsaw systems, the aviation regime consists of thousands of bilateral air transport agreements. For many years it has been a priority for ICAO to encourage member states to adopt standard administrative and technical clauses in their bilateral agreements with one another, mostly based on those

International Law in Action

clauses adopted by the European Civil Aviation Conference in 1959. Standardization of clauses is seen, within the industry, to rank along with uniformity of national laws and the adoption of global principles as a key to the establishment of legal order within a sector that could otherwise become chaotic. The international aviation system has succeeded in promoting an impressively high level of global cooperation in many sectors. For example, major accidents aﬀecting international ﬂights are invariably followed by intensive investigations that draw upon the best technical expertise available within the global system. However, new problems continue to arise. The safety of passengers and crews has been a frequent concern of ICAO, IATA, and other organizations such as the professional associations that represent the pilots and crews. The changing pattern of terrorism, from hi-jacking to bombing to the use of aircraft as weapons, has raised security concerns to the highest levels within these institutions as well as in the mind of the public. How the international aviation system is responding to these dangerous threats on the ground and in the air will be taken up later, when we return to the contemporary scene. At that time also, other current issues in international aviation will be reviewed, such as the fundamental changes proposed to the Warsaw system, the restored debate on the boundary limits between airspace and outer space, environmental concerns such as aircraft noise and atmospheric pollution, and behavioral incidents such as air rage (Sochor, 1991). Shipping. In many ways the shipping industry is totally diﬀerent from the aviation industry. The latter is composed of only two hundred or so airlines. The former, on the other hand, consists of many thousands of commercial units ranging from very large shipping companies and oil tanker ﬂeets to small, individual, one-owner vessels. Because the scope and eﬀectiveness of legal control over shipping depends on the organizational will and capacity of innumerable owners, the tasks of regulation are much more onerous in marine transportation than in the world of aviation. Moreover, whereas all airlines conduct their activities at a comparable level of technological sophistication and a roughly comparable level of operational eﬃciency, seafaring is still a jumble of widely varying skill-standards from the extremely professional to the recklessly negligent. Not all aircraft are new or in perfect condition, as the record of crashes shows only too clearly, but the problem of the sub-standard vessel has no equivalent in the world of aviation, nor the buccaneering culture which is still a source of resistance to international maritime regulations. Moreover, despite the spectacular rise of the cruise sector, the highly heterogeneous marine transportation industry is geared mostly to the carriage of cargoes rather than people, and must adapt almost continuously to the ever-changing dynamics of international trade (Abrahamsson, 1980). In short, it is extraordinarily diﬃcult to subject the shipping world to strict, internationally eﬀective, legal controls. By the mid-19th century it was becoming clear that the legal system for marine transportation would have to be developed at two distinct levels: the commercial level of private maritime (or admiralty) law, and the public policy level of the law of the sea, which is a specialized sector of public international law. Vessel-based trade has been in existence for well over 4,000 years, as we shall see in Part Two. Over

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most of that long period maritime law has evolved through customs (“common maritime law”), although the ﬁrst comprehensive maritime code was attempted as early as c.3000 B.C., when Rhodes was the dominant seafaring power in the Aegean. In the early 1800’s a new “world order” was decreed at the Congress of Vienna (18141816), where most of the rulers of Europe assembled to put the continent back together again after the ravages of the Napoleonic Wars. Manufacturing was now the paramount economic interest of nations, as the promise of aﬄuence associated with the Industrial Revolution became evident to all. For most European powers, “commerce was no longer ‘fashionable’ nor something in which great amounts of energy needed to be expended. Commerce was considered to be suﬃciently well-motivated and self-perpetuating that whatever loose regulations it needed could be supplied by lesser government bodies … Ocean transportation, as a part of the commercial structure, ﬁtted well into this laissez-faire philosophy. It had never been comfortable with mercantilism and restrictions and was happiest when there was little governmental direction” (Gold, 1981). On the other hand, public maritime law (i.e. law of the sea) by the 1830’s was seen as a public policy area of growing importance within the framework of public international law. The “crack” that had appeared between the private and public sectors of maritime law in the 18th century was widening, and “would soon be a schism that would never again be bridged”. Henceforward, private maritime law and public maritime law would develop along parallel roads. These two, surprisingly distinct, groups of experts in shipping law were left on their own, rarely, if ever, meeting together to discuss problems of international marine transportation from their diﬀerent perspectives. At the time, it seemed to serve the interests of the shipping industry to be left alone by the increasingly inﬂuential makers of international law, so long as the dominant legal principle was the “freedom of the seas”, abridged only slightly by the institution of a 3-mile territorial sea. Until the mid-20th century, the international community seemed to acquiesce in the view that the foremost purpose of the international law of the sea was to facilitate international trade and navigation. Meanwhile, a great deal of attention was being devoted to the uniﬁcation of national shipping laws. In the 1860’s there appeared the initial draft codiﬁcation of laws pertaining to the ancient maritime law principle of “general average”, followed in the 1880’s by a work of the recently-founded International Law Association (ILA) on the same topic, which resulted in the famous York-Antwerp Rules of 1890. By this time another international law institution had come into existence, the Institut de Droit International, which proceeded to outline an agenda that included a comprehensive international maritime code. It proved to be unduly ambitious. Enter still another newcomer that would become in due course the primary forum of experts for the uniﬁcation of “international maritime and commercial law and practice, whether by treaty or convention or by establishing uniformity of domestic laws, usages, customs or practices” (cited in Singh and Colinvaux, 1967). The Comite Maritime International (CMI) was inspired by the vision of Louis Franck, a young Belgian maritime lawyer, who was committed to the cause of unifying national maritime law. He recognized that the divergence of the private and public sectors of the

International Law in Action

ﬁeld meant that a special mechanism had to be created to provide the missing link. Arguably one of the most under-praised hero-idealists in the history of international law, Franck refused to be deterred by the extreme nationalism of his time, when the world was dominated by the British Empire, especially in the ﬁelds of international trade and shipping. In their ascendancy, the British did not always conceal their view that the uniﬁcation of shipping law meant the acceptance of English (or British) law by other states. Despite such discouragement, the CMI met no less than eleven times between its foundation in 1897 and the outbreak of the First World War in 1914, covering a wide variety of problems in the ﬁeld of maritime law and practice, including new issues arising from the growth of the international carriage of passengers (Gold, 1981). Despite the protracted slump in world shipping that succeeded the Great War, the CMI held eight important conferences between 1921 and 1937. They covered such topics as collision and salvage, shipowners’ liability, maritime mortgages and liens, bills of lading, passenger insurance, and the arrest of ships. The importance of the CMI’s work was proved by its success in completing four major conventions for transmission to the conference arena for inter-governmental approval, including in 1924 one of foundational status in international maritime commerce: the “Hague Rules” (the International Convention for the Uniﬁcation of Certain Rules of Law Relating to Bills of Lading). Yet it had become evident that “private shipping interests represented by the Comite and related bodies were becoming more and more isolated from broader international, as well as national, shipping and other marine policies. By now they were clearly restricted to general technical, legal and commercial terms of reference and had little access to wider marine-policy decisions” (Gold, 1981). By the end of the Second World War the case for a prominent inter-governmental organization in the ﬁeld of marine transportation had become compelling. The new bodies established in the post-war year included the Shipping Division of UNCTAD (the UN Conference on Trade and Development), the Maritime Committee of OECD (the Organisation for Economic Cooperation and Development), the ILO (International Labour Organization), and the IHO (International Hydrographic Organization). But from a public law-and-policy perspective, the most important by far was – and is – IMO (the International Maritime Organization). Under its original name, the Intergovernmental Maritime Consultative Organization (IMCO), IMO did not come into being until 1958, ten years after the conclusion of its constitutive instrument. Headquartered in London as a special agency of the United Nations, it is mandated to promote international cooperation in all technical aspects of shipping, an objective that it has pursued from the beginning. The Organization has been particularly active and successful in the context of safety at sea, which is usually a concern likely to transcend those political and economic – national and North-South – issues that tend to block consensus in the international shipping world. It was also authorized to discourage discriminatory and restrictive practices and to “promote the freest possible availability of tonnage to meet the needs of seaborne trade” (Abrahamsson, 1980). However, it is precisely over such trade issues that IMCO/IMO has been a house divided. The shipping culture, which has been resistant to regulation for such a very long time, is still strongly reﬂected in the com-

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position of the delegations that attend IMO conferences. The original title of IMCO included the word “consultative” deliberately to defeat the notion that the industry had weakly submitted to the Age of Regulation. Article 4 of the constitutive convention explicitly required the new body to abstain from “those matters which appear to the Organization capable of settlement through the normal process of international shipping business”. Powerful shipping interests in many maritime states have “viewed interference by intergovernmental agencies in the competitive relations and pricing system within the industry as anathema” (M’Gonigle and Zacher, 1979). The industry’s inﬂuence within IMCO/IMO would become, and remain, triumphant, ensuring a more prickly path for member governments than in the case of ICAO, which could devote itself to public policy concerns in the knowledge that commercial and technical matters of primary concern to the aviation industry were left to IATA. Another problem for IMCO/IMO has been the split between ship-owning and ship-using (i.e. cargo-owning) interests, which has long been a source of irritation and frustration in international maritime trade. It is a relationship of dependency that awards the advantage to the carriers, without whose bottoms the world’s cargoes would not meet their overseas market. With the growth of Third World inﬂuence on bodies such as IMCO, eﬀorts were made in the 1970’s to pump life into its “commercial” provisions, but they have remained dead-letter, and the problem of discriminatory trade and shipping practices was assigned to UNCTAD, “a forum dominated by developing states and one inﬁnitely more hostile to traditional maritime interests than IMCO” (M’Gonigle and Zacher, 1979). With the “transfer” of commercial shipping concerns to UNCTAD, it might have seemed that IMCO’s mandate was in danger of shrinking down to a few technical areas. Between 1959 and 1973 its operational structure was limited to two committees and one sub-committee: its Legal Committee, which was set up in 1967 to examine the need for law reform after the Torrey Canyon split apart in stormy seas oﬀ the southwest coast of England; its Maritime Safety Committee (MSC), which is the Organization’s principal technical body, dealing with such matters as navigational aids, collisions, safety, and search and rescue; and its Subcommittee on Oil Pollution/ Marine Pollution. However, since 1973 the Organization’s work has expanded signiﬁcantly with the upgrading of its marine pollution prevention role and the conversion of its Subcommittee into the Marine Environment Protection Committee (MEPC) on a basis of formal equality with the Maritime Safety Committee. This important change came at the urging of the United States in 1973, just as the diplomatic community was gearing up for the Third UN Conference on the Law of the Sea (UNCLOS III), which, as we shall see later, would undertake massive legal reforms in many areas, including that of ship-based marine pollution. It is surmised that the United States wished to enhance the attractiveness of IMCO to developing countries, so as to “forestall potential demands for either an extension of coastal state jurisdiction to control pollution or for the creation of a new pollution prevention agency” (M’Gonigle and Zacher, 1979). A few years later, in 1977, a fourth “principal organ” was created, the Technical Cooperation Committee, with special responsibility to provide technical assistance to the infant shipping industries of the developing countries, again with a view to modifying the Organization’s reputation as a forum of vested interests.

International Law in Action

The similarity between IMO and ICAO is more apparent than real. Whereas ICAO is a “legislative” or “quasi-legislative” body whose decisions are binding on the membership, IMO operates through a “conference” procedure. Recommendations from the MSC, the MEPC, and the Legal Committee provide the impetus for conferences convened by the Secretary-General of IMO with the approval of its Assembly, which is the Organization’s supreme governing body and normally meets once every two years. Since the early 1970’s the most highly publicized sector of IMO’s operations has been that of marine pollution. The grounding of the Torrey Canyon caught the maritime world oﬀ balance. Yet the subsequent reaction within IMCO, and within the shipping and oil industries, resulted in a series of treaty-making conferences under IMCO/IMO auspices. These conferences produced a number of important public intergovernmental conventions such as the 1969 International Convention on Civil Liability for Oil Pollution Damage, the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, and the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL), and also private international agreements such as the 1969 Tanker Owners’ Voluntary Agreement Concerning Liability for Oil Pollution (TOVALOP) and the 1971 Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution (CRISTAL). Several of these and other instruments that were eventually “conferenced” into existence under IMCO/IMO auspices were hammered into their original shape on the anvil of the Comite Maritime International (CMI). Since the 1970’s many dozens of international instruments have been concluded at the regional as well as global level, forming a worldwide network of marine pollution regulatory regimes of very considerable technical complexity (Gold, 1997). This extraordinary phenomenon, in an industry traditionally notorious for its buccaneering ways, has been assisted by a general public alerted to the existence of a wide variety of threats to the marine environment, and by politicians and political parties sharing, or at least displaying, similar concerns. Meanwhile, as these important law-making marine pollution treaties were accumulating, the industry was developing its own ingenious technique for evading the additional costs associated with higher standards. The practice of resorting to “ﬂags of convenience” started on a modest scale before the Second World War, but it was not until the early 1950’s that US and other Western shipping companies began to register signiﬁcant tonnage under Liberian, Panamanian and other Third World registries. The purpose behind the more frequent use of “open registry” in the industry was to take advantage of the primacy of ﬂag-state jurisdiction: that is, the jurisdiction of the state of registry. Adoption of a ﬂag of convenience meant that the tax, labor, environmental and other requirements applicable to the ship owner were those of a developing country with a less rigorous regulatory regime that guaranteed lower operational costs for the owner. In the 1950’s the United States was the principal champion of the principle of national non-discrimination that obligates states to admit all ﬂag vessels into their ports on an equal basis. It was the pragmatic US shipping industry that saw the merit of transferring “legal” (as distinct from “beneﬁcial”) ownership to corporations regis-

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tered abroad as “tax havens”. The practice of using ﬂags of convenience was ﬁrst challenged by European shipping states aware of the threat posed to their competitive position in the industry. The strategy of these governments was to seize upon the language of a recent decision of the International Court of Justice in the Nottebohn Case (ICJ Reports, 1955) concerned with the acquisition of nationality by individuals, which was virtually unregulated by treaty. With a view to limiting the conferral of nationality on well-heeled but dubious individuals, the Court held that the conferring state was obligated to act in conformity with the “general aim of making the legal bond of nationality accord with the individual’s genuine connection with the State … Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with reciprocal rights and duties”. The individual upon whom nationality is conferred should be “more closely connected with the population of the State conferring nationality than with that of any other State” (ICJ Reports, 1955). The European response was to advocate that the right of conferring “nationality” on a ship should be limited in the same way as for an individual. At the time of the Nottebohm decision the International Law Commission was preparing draft articles for the codiﬁcation of the law of the sea, destined for the ﬁrst UN Conference on the Law of the Sea in 1958. In dealing with the nationality of ships it quickly adopted the “genuine link” rationale espoused by the Court. It might be inferred that the inﬂuential European members of the Commission were aware of the implications of this adoption for the traditional shipping powers of Europe. So it came about that Article 5 (1) of the 1958 Convention on the High Seas was approved in the following form: “Each state shall ﬁx the conditions for the grant of its nationality to ships for the registration of ships in its territory, and for the right to ﬂy its ﬂag. Ships have the nationality of the state whose ﬂag they are entitled to ﬂy. There must exist a genuine link between the state and the ship; in particular, the state must eﬀectively exercise its jurisdiction and control in administrative, technical and social matters over ships ﬂying its ﬂag”. As noted by a recent author, this provision “attempts to combine the well-established and universally recognized right of each state to set out the conditions for the grant of its nationality to ships with the newlyemerged concept of ‘genuine link’” (Pambarides, 1999). The transference of this notion from individuals to vessels had appeal to certain jurists with a taste for analogies and legal ﬁctions. But it has been suggested that these jurists did not realize that they were being “manipulated by an unusual solidarity of ship owners and seafarers from the traditional maritime states who cared little what ﬂag ﬂuttered from the stern of a ship as long as they maintained eﬀective control. In other words, what was undoubtedly a purely commercial dispute had been translated into an international legal problem, with a surprising phalanx of legal scholars as unwitting tools” (Gold, 1981). It evolved around dollars and cents. This maneuver did not “sweep the ﬂags of convenience away”. The “genuine link” requirement in Article 5 was ignored, and the tonnage registered in Liberia, Panama, and other ﬂags-of-convenience states continued to rise steadily. Critics in North America pointed to the artiﬁciality of the concept of ship nationality (McDougal and Burke, 1962), and to the vagueness of the treaty language (Gold, 1981). Later we shall

International Law in Action

return to the role of open registry in the more recent context of international development law and its impact on Third World economies. Later also we shall resume the history of other eﬀorts to curb the traditional dominance of ﬂag-state jurisdiction in the world of shipping (Ozcayir, 2001), and also in the world of commercial ﬁshing on the high seas. Reﬂections. Why does the world community have “orderly relations” in some sectors, and not in others? Do order-producing regimes evolve only when the regime is seen by the most powerful state or grouping of states to serve the national interest? Or are successful regimes of this kind dependent on the existence of “mutual interests” across a broad continuum of participants? Proponents of the former view may be identiﬁed as “neo-realists”: members of the tough, “hard power”, school of political realism. Proponents of the “mutual interests” hypothesis might be tagged as “neo-liberals”, associated with the tradition of internationalist idealism, the modern concept of “soft power”, and the orthodox rationale of cooperative behavior in the inter-state system (Zacher, 1996). It may be objected that the selection of these two service or “infrastructure” industries is bound to load the dice in favor of the “mutual interests” theory, since both aviation and shipping are global industries of such technical and commercial complexity that it is extraordinarily diﬃcult for governments even of the most powerful states to bring them to heel. Since the most powerful states in these sectors are also the most democratic, deference must be paid to the general public. Consumers of aviation and shipping services in these countries tend to be suspicious of heavy regulation to the extent it is associated with high prices and excessive bureaucracy. However, this outline of these regulatory eﬀorts down to the 1970’s seems to oﬀer evidence in support of both theories. Both industries, as we have seen, have had to grapple with basic jurisdictional and other legal dilemmas in the decades following the Second World War. By the 1960’s neither the aviation nor the shipping sector had settled ﬁnally on any generally accepted foundation of legal principles. In the case of aviation, most states preferred the leverage and ﬂexibility inherent in a regulatory system grounded in a multitude of bilateral, reciprocal, air services agreements made necessary by the “gap” in the Chicago Convention. In the case of shipping, inter-state diplomacy in the 1960’s had not yet found a way of using international law eﬀectively to hinder the industry’s pursuit of low-cost operations. The rest of these two stories must wait until we return to the contemporary scene. Reform: The Law of the Sea We have seen that the international law system today serves various functions. In the ﬁrst section of this chapter, it was presented as the guarantor of fundamental principles such as that of diplomatic immunity, institutionalized to defend legal principle, sometimes under conditions of religious enthusiasm, cultural resentment, and political stress. In the second section, we have perceived international law as the expression of state consent, as a global network of state-negotiated arrangements and settlements that are prone to give rise to legal issues which must be dealt with

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within a framework of codiﬁed norms and procedures, even if this involves resort to artiﬁcial analogies and legal ﬁctions. In the third section, the system was portrayed as the normative foundation of regulatory regimes such as those serving the needs of transportation within the technical, but also politicized, transnational sectors of aviation and shipping. In this present section, the focus shifts to a function that may seem less obvious: system transformation. Usually legal development is an “internal” process, a technical challenge to be met by incremental adjustments. But the need to respond to new political demands occasionally requires redesign of an entire sector within the system. In the modern, post-World War era, nothing is more likely to force major change than a widespread recognition that the system is unjust. Before the middle of the 20th century international lawyers engaged in very little agonizing over the need to place world law on a ﬁrmer foundation of justice. All of this changed, quite suddenly, with the creation of the United Nations Charter. As World War Two hostilities were still prolonging the slaughter, it became obvious that post-war international law and diplomacy would have to be reconceptualized as an order of global justice as well as order. In two fundamental ways, the UN Charter was drafted – initially in the US State Department – to provide correctives to a world disﬁgured by inequities. First, the famous instrument committed the international community to an ethic of human rights. This huge change will be looked at later in historical context. But in addition the UN Charter gave equal emphasis to the new imperative of converting the interstate system into a genuinely global order that would be devoted to reducing the existing disparities among rich and poor nations. The ﬁrst step toward the establishment of an equitable system of international law was to carry through the basic structural tasks of decolonization throughout the world – a challenge that was taken up immediately and virtually completed within 25 years of the creation of the United Nations. But the larger priority of reducing interstate disparities continues to represent a much more diﬃcult challenge, pervading almost every area of international law. In 1945 it was accepted that the system could no longer be maintained as an order of legitimacy in world aﬀairs unless it could be reformed, so as to narrow the disturbing gap between the developed states of the “North” and the more numerous, developing states of the “South”. As we can see looking back, the ethical struggle to reduce the disparities between the North and the South was to outlast the ideological struggle for power between the East and the West. In the ﬁrst vignette, we noted the emergence of a North-versus-South issue in the context of expropriation of foreign assets. Should developing countries be held responsible under a single, uniform rule of law – a rule fashioned by the wealthiest developed states – to provide prompt, adequate and eﬀective compensation for “seizure” of such assets under a program of nationalization? Should the rule be applied even if such a measure by the “conﬁscating” government was essential to nation-building under the principle of national independence proclaimed in the UN Charter? As it turned out, this issue did not have to be resolved in purely legal terms, because the assets in question were mostly corporate in nature, such as oil company

International Law in Action

assets, and problems of this kind could be solved through negotiations conducted on the basis of mutual beneﬁt. However, much more complicated issues between North and South have surfaced since 1945 in other sectors, where solutions or compromises cannot be found through the ﬂexibility of corporate enterprises. In some of these other areas of international law there has been no alternative but to re-think and restructure the system itself. During the 50 years after the Second World War, no area of international law was to witness more radical reform than the law of the sea. The changes in ocean law since 1945 are momentous They have introduced a reformist spirit that has oﬀered, or threatened, fundamental change in other sectors of world law. The prospect of reform has divided international lawyers of diﬀerent political and jurisprudential stripes. Most lawyers are technicians trained, or even “programmed”, to draw down the present from the past, and to project the future through gradual, incremental adjustments of an inherited stock of ideas. In the case of the law of the sea, that heritage was seen in 1945 to extend back to the late 16th century. In the age of Queen Elizabeth I, England was beginning to exploit the advantage oﬀered by its ﬂair for seamanship. Supremacy at sea had to be gained through victory in naval encounters such as those won by the English over the Spanish in 1588, over the Dutch in the 1640s, and, much later, over the French in 1805. What these European rivals had in common with one another was the need for a system that would guarantee absolute freedom of navigation, so that the oceans of the world would be secured as the principal domain of international commerce. What emerged from this “common need”, dictated by the commercial and colonial powers, was a legal framework of startling simplicity. The vast expanse of the seas, covering 73 of the Earth’s surface, was to be open to all comers under the “freedom of the seas” (mare liberum): a principle designed to preclude any state action that would interfere with the carriage of goods at sea in time of peace. In retrospect, we might say that the traditional law of the sea was the ﬁrst evidence of an international law of commerce or communication. However, there was another point of view. Opposition to mare liberum grew chiefly out of resentment against the Dutch, who had become the master-ﬁshers of the North Sea and adjacent waters in the late 16th century. They were the inventors of the driftnet for herring and the trawl for plaice, and they taught the English and the Scots the arts of modern commercial ﬁshing. But their dominance was a threat to others, provoking the Scottish jurist William Welwood (1578-1622) to attack the principle of mare liberum, complaining that the East Scottish ﬁsheries were being exhausted on account of the “neer and dailie approaching of the busse ﬁshers”, breaking and scattering the shoals so that no ﬁsh “worth of anie paines and travels” could be found (Fulton, 1912). Complaints such as these convinced James VI of Scotland that something had to be done about the Dutch, and he brought this conviction south when he assumed the English throne as James I in 1603. This dispute degenerated into a bitter and protracted struggle between the British House of Stuart and the United Provinces of the Netherlands for maritime supremacy in the North Sea and the carrying trade of Europe in the 17th century.

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The heaviest intellectual assault was delivered by no less than Hugo Grotius (15831645). In 1609 the youthful genius was engaged by the Dutch East Indies Company to make the case for the freedom of the seas against the British, who had now espoused an exclusionary policy under the House of Stuart. In Mare Liberum he restated the principle of an open sea with a blend of vigor and elegance that would distinguish his future writing and earn his reputation as the leading polymath of the 17th century and, more controversially, as the “father of international law”. All property, Grotius argued, is based on possession (occupatio). What cannot be seized or enclosed, such as the open sea, cannot be property, and therefore remains common to all mankind. The sea can neither be bought nor sold, nor otherwise legally acquired: it is under God’s domain alone. Property rights by prescription or custom cannot be acquired in the sea, for no one has power to grant a privilege to mankind in general; and mankind in general cannot be assumed to have granted a concession in the sea. Agreements between maritime states to apportion certain areas of the sea to facilitate the suppression of pirates bind only those who are parties to them, and give no right of ownership. Fish in the sea are legion, and cannot be exhausted by promiscuous use. Where there is abundance for all, there can be no moral justiﬁcation for appropriation. Meanwhile, the other side was preparing its own arguments for what would become the most famous debate, or “battle of books”, in the history of international law. For decades British jurists such as Thomas Digges, Sir Thomas Craig, William Welwood, and Robert Callis had provided the foundational arguments for a closed sea (mare clausum): the sea was capable of ownership (dominium maris) through feudal custom or prescription, and the sovereign, by virtue of royal prerogative (regalia), was the proprietor of ﬁsheries found in coastal waters. Under attack by the formidable Grotius, James I called in the leading British jurist of the day, John Selden (15841654) to fuse these and other elements into his prodigious work Mare Clausum. The substance of Selden’s argument, supported by a mass of historical evidence, may be summarized. The sea is capable of appropriation. The claim to dominion over the sea was not contrary to the law of nature or the law of nations. In practice many modern states had exercised real sovereignty (imperium) in certain waters: the Venetians, Genoans, Tuscans, Pisans, Turks, Poles, Germans, Russians, Swedes, and Danes, as well as the British. The main elements of sovereignty were possession and long, continuous, uncontested use. The permission of innocent passage through territorial waters did not detract from the sovereign state’s dominion of the sea. It was not true that the sea had no limits, nor that it is inexhaustible from promiscuous use (Johnston, 1965, 1987). As far as the Dutch were concerned, the famous controversy was closed with the publication in 1702 of Cornelis van Bynkershoek’s De Dominio Maris Dissertatio, in which Selden’s theory was rejected in favor of a proposal for a deﬁnite and realistic limit to the breadth of the territorial sea. By the mid-18th century it seemed that the era of claims to sovereignty over extensive areas of the sea has passed forever. So the “classical” law of the sea jelled as the “neo-Grotian order”, accepted as normatively indispensable for the furtherance of international trade and navigation. The open sea could not be occupied, but enclosed or semi-enclosed seas, straits, bays and gulfs

International Law in Action

were susceptible to occupation under a separate regime of “internal waters” and a marginal belt of “territorial waters” could be held by the coastal state, subject to the right of “innocent passage” on the part of foreign commercial vessels. For three centuries the world community lived at peace with this West European notion that coastal state control over the ocean should be limited to the narrow strip of waters extending no further than three (or, at most, four) nautical miles from the shoreline. This concept of a “territorial sea” regime became the chief feature of a simple law of the sea, whereby the vast maritime expanses beyond these modest seaward limits constituted the “high seas”, a regime wherein four freedoms were to be enjoyed equally by all comers: freedom of navigation, freedom of ﬁshing, freedom to lay submarine cables and pipelines, and freedom to ﬂy over the high seas. In the “Age of European Ascent”, all European powers were comfortable with this two-regime system for the seas, and, after President Jeﬀerson, so too was the United States. The inadequacy of this system became evident as the 20th century unfolded. The ﬁrst cause of discontent had nothing to do with a sense of international injustice and everything to do with national interest, not unlike the original Grotian concept of the high seas. This time, however, it was the prospect of producing oﬀshore hydrocarbon under the seabed and sub-soil of the continental shelf that attracted attention. The availability of these valuable resources, especially under the broad underwater shelves at the eastern end of continental land-masses, was known by scientists before the outbreak of the First World War. At that time it was becoming clear that the industrial economies would become more dependent on oil as the replacement for coal as the primary source of energy. Accordingly, it became obvious that a way would have to be found to bring this strategic resource within the reach of coastal state jurisdiction. The solution was to create, ﬁrst through doctrinal manipulation and then through multilateral treaty-making, a new regime of the “continental shelf ”. The function of this regime was to validate coastal state claims to extensive, extraterritorial jurisdiction over non-renewable (non-living) resources of the shelf, and later to renewable (living) resources, such as crabs and other “sedentary species” attached to the shelf. This major change in the law of the sea was of great signiﬁcance legally, as well as economically and politically, for two reasons. In the ﬁrst place, the validation of the coastal state’s “sovereign rights” to the resources of the shelf marked the ﬁrst radical departure from the “neo-Grotian tradition” that favored freedom of access for all states to the riches of the sea. Geography from now on would determine the beneﬁciaries under the new law of the sea, as the limits of coastal state jurisdiction were pushed further seaward. Second, since the rationale for the continental shelf regime was focused on a single purpose, the extraction of oﬀshore resources such as oil and gas, the law of the sea acquired its ﬁrst overlay of modern functional sophistication. It was no longer necessary to think of a state’s rights and responsibilities in its oﬀshore waters solely in terms of the generic, all-purpose, terrestrial ﬁction of territoriality applied to ocean space. The concept of “functional jurisdiction”, focusing on resources and uses, had arrived in the law of the sea, as functionalist rationale in the area of diplomatic im-

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munity had ﬁxed on functions of diplomacy as the true objects of special privilege, rather than land, premises or individuals. Strictly speaking, functionalist rationale entered the law of the sea at an earlier date. It can be said to have originated in the 18th century, when the Roman-Dutch jurist Cornelis van Bynkershoek (1673-1743) suggested three nautical miles as the uniform extent of territorial waters, because it corresponded at that time with the maximum range of gunﬁre: the “canon-shot rule” (Fulton, 1912). In the late 19th century, functionalist rationale re-asserted itself, when it was gradually accepted as sensible to permit the exercise of certain administrative acts of the coastal state outside its three-mile territorial sea in a “contiguous zone”: acts both legitimate and necessary in the sectors of customs, ﬁscal, immigration, and sanitary aﬀairs (McDougal and Burke, 1962 ). But for the factor of inequity, this “neo-classical” law of the sea would have reached its ﬁnal stage of formal perfection when the draft articles prepared by the International Law Commission (ILC) were presented to a conference of plenipotentiaries at the Palais des Nations in Geneva in June 1958: the ﬁrst United National Conference on the Law of the Sea (UNCLOS I). With relatively little political debate, the “scientiﬁc” work of the ILC was endorsed in the form of four separate instruments: (i) the Convention on the High Seas; (ii) the Convention on the Territorial Sea and Contiguous Zone; (iii) the Convention on the Continental Shelf; and (iv) the Convention on Fishing and Conservation of the Living Resources of the High Seas. In neo-classical terminology, the ﬁrst two instruments were characterized as examples of “codiﬁcation”, and the third and fourth as examples of “progressive development” of international law. No one at UNCLOS I could possibly have foreseen the depth and range of reforms that would overtake the law of the sea over the next 40 years. Especially important are those changes associated with a growing sense of inequity on the part of third world countries, now enabled to challenge the legal system that they had been asked to endorse in toto as a condition of membership in the organized legal community. The story of these challenges is the story of UNCLOS III. The agenda-setting for UNCLOS III was entirely diﬀerent from the process of preparation for UNCLOS I. Instead of engaging the jurists of the ILC in quasi-scientiﬁc mode, through the “neo-classical” tasks of codiﬁcation and progressive development of international law as prescribed by the UN Charter, the political need for overarching law reform was seen to transcend all juridical preconceptions about the appropriate method of legal development, even in a sector as ancient as the law of the sea. In totally new areas such as the law of outer space and the control of weapons of mass destruction, it had been found necessary to initiate de novo law-making diplomacy. But the idea of opening up the entire process of law reform to the political passions and uncertainties of the global arena was daring and risky. The weight of tradition in the international law community should not be underestimated. The two-regime system for the oceans had served it purpose for three hundred years. Arguably, it was still a workable (“common interest”) compromise between the “inclusive interest” in preserving the freedom of navigation on the open seas and the “exclusive interest” in guaranteeing a measure of security to coastal

International Law in Action

states in waters close to their shoreline (McDougal and Burke, 1962). For many international lawyers, the case for radical change had to be made and the onus of proof fell on the advocates for reform. As we can see more sharply in retrospect, UNCLOS III, more than any other event, deﬁned the transition from the “neo-classical” to the “post-classical” (or “romantic”) phase in the history of international law. In the context of the law of treaties, we discovered that a painfully slow tempo of change is imposed on the process of codiﬁcation and progressive development of international law through the scholastic summer labors of the underresourced International Law Commission on the banks of Lake Geneva. At its best, the ILC has contributed “rigor” to the process of legal development, but it is clearly not designed to capture “sophistication” in response to the mood and dynamics of the world community. Codiﬁcation is a concept of “classical” origins, derived from the great experiments of the sixth century A.D., when Tribonian presided over commissions appointed by the Emperor Justinian to compile, ﬁrst, a code of imperial legislation (the ﬁrst Codex), extracts from the works of the great Roman jurists (the Digest), an introductory manual (the Institutes), and, ﬁnally, a completely revised Codex, which was an exercise in the “progressive development” of Roman law explicitly authorized by the Emperor. To the extent that the members of the ILC are elected by the UN General Assembly, and thus reﬂect the diversity of political and legal cultures in the world community, the ILC might be characterized as a “neo-classical” mechanism. Classicism, it might be suggested, hinged on a concept of formal perfection. By the end of the Roman civilization, the priorities in legal development were less a matter of innovation than of re-discovery, reﬁnement and moderation. Tribonian and his colleagues were, more or less consciously, attracted to an ideal composed of “classical virtues”: the code, ideally, should be complete, balanced, immaculate, unambiguous, precise, carefully structured, internally consistent, reﬂective of the past, and permanent. It was intended to be the ultimate articulation of a system designed to be universal, within the limits of the Eastern Empire, and designed to work. However, these compilations of “scholars’ law” were found to be too unwieldy and complicated. In practice, they had to be modiﬁed and often replaced by a “vulgar law” – “peoples’ law” – based on local custom. Yet the ideal of structurally perfect law in codiﬁed form was to return in the 18th century. Adherents of the natural law school, convinced of the possibility of legal development through the application of reason, seized on codiﬁcation as the technique for fusing theoretical and practical law. By the late 19th century the entire Romano-Germanic family of legal systems in and beyond Europe had accepted that codiﬁcation – and the associated legal virtues of technical precision, certainty, and predictability – represented the golden road to the ultimate form of legal development. In the common law and other systems, codiﬁcation has never been idealized in quite the same way. Yet in commercial and other sectors where certainty, precision and predictability are highly prized, the advantages of codiﬁcation have sometimes been judged to outweigh the disadvantages of rigidity, artiﬁciality, and excessive technicality. Under this neo-classical inﬂuence, many international lawyers assumed that almost any systematic eﬀort to develop an area of international law should result in a

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code of some sort: whether to “harmonize” national laws or to make them uniform; whether to convert state practice or general (customary) international law to written form or to conﬁrm the course of doctrinal development; whether to advance the progression of “soft” to “hard” norms or to produce de novo an entirely original lawmaking convention. Whatever the purpose at hand, our modern conception of good legal development is still colored by classical expectation. Today, however, we live in a romantic age. The structure of the nation-state system has placed a premium on the notion of national sovereignty and the need for consent. The vast size of the system has created the necessity for elaborate law-creating or lawdeveloping initiatives at the global level of international diplomacy. Increasingly over the last 30 years, the UN system has consisted essentially of a never-ending succession of conferences, propelled by an assortment of governmental energies and maintained by an arsenal of secretariats. Now, as never before, we are bound to follow the precept of participatory democracy within the dynamic, but under-institutionalized, framework of “international government”. However, the treaty-making approach to legal development, insisted upon by the positivists since the early 19th century, is no longer suﬃcient in the new, communitarian era of the mega-conference. In the contemporary world, legal development is an unending, community-building process. Distortion results from any eﬀort to describe this process within a static frame of reference, or to reduce it to a succession of unrelated or discontinuous acts of “law-making”. Typically, modern legal development is the product of complex interactions in the arena of conference diplomacy. As modern living has required that more and more human concerns be referred to the arena, more and more eﬀorts at legal development are injected into the Sturm und Drang of international politics. We are living in the “high romantic” period of international legal development. The arena of conference diplomacy is a stage. Conference diplomacy is drama, both in structure and content. The requirements of “good” legal development today are, more and more frequently, associated with “romantic” virtues. A universally acceptable legal instrument is no longer expected to possess all the classical characteristics of the ideal code. Symmetry, clarity, and consistency are expected to compete with the current of “romantic” sentiments in favor of diversity rather than uniformity, justice rather than order, imagination rather than logic. Legal development is a matter for which passion may be appropriate. Participation, if not spontaneity, is felt to be a “virtue in itself, even to the point that the “process” may be judged as important as the “product” (Johnston, “Heritage”, 1986). In short, the milieu of expectations has changed. Leisurely exercises in legal development no longer keep pace with worldwide demands for national development. By the mid-1960’s it was evident that the work of the ILC culminating in UNCLOS I and the four Geneva conventions of 1958 no longer served the needs of the modern world order in a context as open-ended as ocean use and regulation. Through modern technology, oﬀshore waters beyond the narrow territorial sea had become available as a convenient and natural extension of the resource economy of the coastal state. Untrammeled freedoms of the high seas, far from serving the “common interest”, were seen by developing coastal states in particular as a constraint, loading the dice in favor of the rich and powerful states that were clearly the chief beneﬁciaries of the

International Law in Action

neo-Grotian system that had evolved throughout the period of imperialism and colonial exploitation. Third-world interest could be served only through a radically different, ab initio, risk-taking approach to law-making conference diplomacy. All that was needed was a vision to ignite the more or less poorly organized bureaucracies of the developing economies. That vision was supplied by one of the most impressive idealists in the modern history of international law and diplomacy. Arvid Pardo (1914-1999) was born in Rome, in the same year as Manfred Lachs, of a Swedish mother and a Maltese father. His early education was rigorous, instilled at the famous Jesuit College of Mondranone, near Naples. Early in life he formed a contempt for fascist oppressors that never wavered. As a young man (whose vigorous pursuits included hiking in the Scottish Highlands) Pardo studied law and history extensively. In the 1930’s he was drawn into the anti-fascist, cosmopolitan, multi-linguistic elite of the Mediterranean cultures. Like so many fellow-idealists of that time and place, he was attracted to the cause of world federalism and the early eﬀorts to reshape the world community through the uncertain experiments of the League of Nations. During the Second World War Pardo was in constant danger, a British citizen (by virtue of Maltese parentage), trapped in fascist Rome. His political convictions forced him into clandestine activities, and, after betrayal, he was imprisoned in turn by the Italian, German, and then Russian regimes, none of them likely to be comfortable with a British-sounding and British-looking humanist of independent spirit. Towards the end of the war he escaped from prison, and, after enduring much hardship, found his way to London. Perhaps predictably, his early diplomatic career, like that of Lachs, catapulted him into the UN arena, where he too became deeply involved in the early post-war phase of arms control and disarmament initiatives. Pardo’s rationalist optimism was fortiﬁed by faith in the advancements of science and the beneﬁts of technological development. By the early 1960’s it became obvious that the framework which consisted of the four 1958 Geneva conventions emerging from the ILC and UNCLOS I was totally inadequate for a world acquiring the capacity to extract wholly new resources from the ocean. In his famous marathon speech before the UN General Assembly in the fall of 1967, as Maltese Ambassador to the United Nations, Pardo drew attention to the mineral riches (manganese nodules) on the deep ocean ﬂoor, which belonged to no one state. Pointing to the dangers of military and economic competition inherent in the Cold War, he foresaw a race to carve up this unoccupied domain just as Africa had been carved up in the colonial era, across a network of arbitrary national boundaries. The wealth of the ocean should become available to all, including especially the peoples of under-developed economies. The old neo-Grotian law of the sea, he argued, was eroding and had to be replaced by a new system centered in the concept of the “common heritage of mankind”. One of the ﬁrst environmentalists of the modern era, Pardo stressed the ecological unity of ocean space and proposed that the seabed and its resources should be accorded the legal status of common heritage, provided with a new kind of world authority mandated to administer the area (an “International Area”) and to manage the production and distribution of its natural wealth. The area he envisaged would be used

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for peaceful purposes only, safeguarded like Antarctica from the testing and deployment of weapons (Pardo, 1975). No speech delivered to the UN body came closer to galvanizing the organized world community. His call for a more equitable distribution of beneﬁts derived from the ocean had an immediate appeal to the delegations of the third world, which now had a leader of world stature, a modest man of exceptional vision who was respected also in the capitals of the developed states. His reference to the prospect of great wealth arising from deep ocean mining provided an acquisitive focus in the diﬃcult task of developing a new world order for the oceans, a goal assured of binding together the third-world “Group of 77” (Miles, 1998). His warning of military dangers led to the 1971 US-Soviet agreement on the demilitarization of the seabed, modeled on a similar treaty for the demilitarization of outer space. Almost overnight, the future legal status of the ocean ﬂoor was imagined as common heritage, like that other “commons” which had already beneﬁted from the “Antarctic analogy” (Jessup and Taubenfeld, 1959). Ironically, the hero-ﬁgure of UNCLOS III reforms was left on the touchlines as an observer, when the famous conference began oﬃcially in December 1973. The Nationalist Party of Malta had been defeated in the polls in 1971, and the Labour Party headed by Dom Mintoﬀ saw ﬁt to exclude Malta’s most distinguished son from the Maltese delegation. Arvid Pardo refused to sulk in his tent, remaining deeply involved in the great debate on all issues negotiated at UNCLOS III. But it was no secret that he was frustrated by his inability to participate inside the arena, especially when it became clear that much of his vision would be sacriﬁced to the need for compromises. The absence of controls over the preparatory diplomacy for UNCLOS III, which began in the summer of 1968, resulted in an agenda of staggering magnitude and complexity. Nothing remotely so ambitious had even been attempted in the history of law reform. For the ﬁrst time, the entire community of independent nations would be required to work together on issues so numerous and diverse that the enterprise was likened not only to the making of a constitution for the oceans but also to a synthesis and codiﬁcation of shipping treaties, an operational code for ocean mining, a blueprint for environmental management, and, above all, a call for reform. Many of these issues were familiar to most of the 150-odd delegations at UNCLOS III, and some, under the old regimes of the high seas and the territorial sea, were seen to require not much more than incremental adjustment of the treaty language coming out of UNCLOS I. On the other hand, dozens of topics on the new agenda called for re-thinking that would be innovative and politically provocative. UNCLOS III was to become the greatest challenge so far to the UN system. This challenge would be met, but only after 25 years of intense and convoluted negotiations on the part of the world’s most sophisticated lawyer-diplomats. The formal negotiations at UNCLOS III proper – excluding the preparatory and subsequent revisionist phases – lasted almost ten years. Even after a quarter-century of unparalleled diplomatic eﬀort, many provisions of the ﬁnal version of the UN Convention on the Law of the Sea remained vague, the product of intentional ambiguity. Genuine

International Law in Action

resolution would require the assistance of future generations. Work on the famous “sacred text” ended in exhaustion, all passion spent. The huge eﬀort to re-structure the law of the sea was divided among three Main Committees. It fell to the embattled and bitterly divided First Committee to create a totally original regime to facilitate and regulate a new industry: deep-ocean mining. This industry was conﬁdently expected at the outset of UNCLOS III to generate huge revenues that would become partly available for distribution among the poorer nations of the world – nations that had then, and still have, no prospect of enrichment through their own eﬀorts. A prodigious quantum of diplomatic time and ingenuity was invested in this noble and diﬃcult task. By December 1982 it appeared that the warring delegations of North and South had ﬁnally committed themselves, wearily, to the establishment of an imposing bureaucratic structure, the International Seabed Authority. But it was still not clear, more than two decades later, when a regulated system for deep ocean mining would become operational outside the exclusive limits of national jurisdiction over the continental shelf, in the so-called “International Area” of the sea-bed. The original hope for such an industry was believed to rest with the “manganese nodules” of zinc, copper, iron and manganese available for pick-up or suction from the deep ocean ﬂoor. Since then it has seemed more likely that the industry will start with other metallic compounds such as manganese crusts or polymetallic sulphides, and these may become available initially inside the limits of national jurisdiction, not beyond as assumed at UNCLOS III. Moreover, the system so carefully designed under conditions of extreme diﬃculty was subverted by the politicians of the United States, whose diplomats had previously worked so hard on these issues. After President Reagan entered the White House, the deep-ocean mining system of UNCLOS III was picked apart by the new Administration, forcing a major revision of the text that was more acceptable to the right wing of the Republican Party. Despite this revision, the United States in 2003 had still refused to sign the revised Convention. So, for two decades, this, the most famous of all law-reform treaties, has languished in the ﬁles of the State Department, yet another addition to the list of hundreds of “unperfected” treaties negotiated by the United States, but believed incapable of ﬁnding approval by a two-thirds majority of Senators (Wiktor, 1976-94). Reformist zeal also attended negotiations in the Second Committee at UNCLOS III. There the emphasis was on jurisdictional issues, and therefore on the economic, security and other beneﬁts that could be wrung out of the global arena on behalf of the “coastal states”: that is, those states possessing a signiﬁcant coastline. This category consisted of a majority of delegations, outnumbering and overpowering those 42 countries that are “landlocked” and other “geographically disadvantaged” nations that have small or concave coastlines. It became clear that geography, not ethics or political alignment, was bound to determine the political arithmetic of the Second Committee. Inevitably, developed as well as developing coastal states were pushed by the same considerations of clear-eyed national advantage. By the logic of economic interest, it was here that Arvid Pardo’s dream of a generously shared maritime bounty failed to capture the hearts and minds of the arena.

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Yet here, in the Second Committee, a sort of equity was also served. It was felt by many delegations, representing developed as well as developing states, that the “neoGrotian order” in the law of the sea, which was designed to serve the “common interest” in free navigation, trade and communication, did less than justice to those states with coastal communities whose welfare was heavily dependent on the resources of the sea. As noted earlier, the emergence of the doctrine of the continental shelf – and later the 1958 Convention on the Continental Shelf – underlined the modern sense of “coastal state entitlement”. However, it was ﬁsh, not hydrocarbon, that dominated most of the negotiations in the Second Committee. The 1958 treaty language of continental shelf entitlements was, it is true, updated at UNCLOS III, but the equity that had to be secured was a new balance between the traditional rights of navigation, both military and commercial, which were the top priority of the “maritime powers”, and extended rights accruing to the coastal states, the “nearest adjacent” states. Adjacency was now being perceived as a value in itself, a source of special entitlement, whose beneﬁts could be enjoyed more than ever before by virtue of modern technology. Nowhere was the need for equity in the new law of the sea more widely felt than in the sector of ﬁsheries, where coastal-state and distant-ﬁshing interests collided. The international law of ﬁsheries had remained normatively and institutionally primitive for centuries. It was true, of course, throughout this long period, that the ﬁsh in the sea were legion, as argued by Grotius, but it was “classical”, not modern, truth. Improvements in the industrial technology of ﬁsh capture have slowly, but inexorably, undermined the international community’s faith in such simplistic, prescientiﬁc beliefs. The need for conservation of the world’s major commercial ﬁsheries became more evident with the maturation of the young discipline of ﬁshery science. The ﬁrst international ﬁshery conservation commissions, pioneered by the United States, Canada and Japan in the 1920s and 1930s, were the creation exclusively of ﬁshery biologists. After the Second World War, this scientiﬁc elite was joined by a counter-elite of ﬁshery economists, who came out of the older ﬁeld of forestry economics. The result, not immediately, was a synthesis of more or less compatible ideas about the objectives and methods of ﬁshery management. This set of ideas became the intellectual infrastructure of the new international ﬁshery commissions that sprouted in the 1950s and 1960s, reﬂecting the negotiators’ faith in the possibilities of rationality in this diﬃcult sector (Johnston, 1965, 1987). Faith in scientiﬁc rationality was the basis not only of numerous ﬁshery conservation agreements negotiated up to 1966, mostly under the auspices of the Food and Agriculture Organization (FAO) of the United Nations, but also of the ILC’s eﬀort to codify the international law of ﬁsheries in the International Convention on Fishing and Conservation of the Living Resources of the High Seas, which was adopted at UNCLOS I in 1958. This instrument reﬂected also the hope that harvesting states would wish to cooperate with one another in ﬁshery commissions mandated to make diﬃcult management decisions on the basis of the “best available scientiﬁc ﬁndings”. The wish was not fulﬁlled. The kind of ethic it represented could not prevail over the sense of the coastal state’s special entitlement. At UNCLOS III the scope of almost all existing international ﬁshery commissions was severely curtailed when the

International Law in Action

Second Committee at UNCLOS III agreed to an African compromise favoring the establishment of an “exclusive economic zone” (EEZ). This new regime would extend 200 nautical miles seaward from the baseline of the territorial sea, which, it was also agreed, could not extend beyond 12 nautical miles in breadth. Henceforward, all coastal states were entitled, wherever geography permitted, to exercise “sovereign rights” to all resources, both living and non-living, in their EEZ, subject to certain international management responsibilities (Burke, 1994). The new law of the sea would look more Seldenian than Grotian. Equity was also on the agenda of the Third Committee. By the 1970s most developing countries had begun to coordinate their eﬀorts to close the gap that separated them from the wealthy industrial states of the North. To the extent that their exclusion from the beneﬁts of modern technology was at the core of their economic nation-building problems, the mood was in favor of a determined collective campaign, the New International Economic Order (NIEO). This mood resulted in the adoption of articles negotiated in the Third Committee of UNCLOS III for “transfer of technology” in ocean-related contexts. Similarly, the Third Committee created a “consent regime” designed to give the coastal state a virtual veto over foreign scientiﬁc research in its EEZ, if such a prospect appeared to threaten the coastal state’s national interest. Twenty years after the conclusion of UNCLOS III, the “soft law” transfer-of-technology provisions seemed to have suﬀered the same fate of neglect by developed states as other NIEO-type provisions in other sectors of international law. The “consent regime”, on the other hand, proved to be amenable to bilateral negotiations that take account of the possibilities of mutual beneﬁt. It did not prove to be a lethal threat to the future of distant-water research, as feared by many Western oceanographers. The law-of-the-sea story has continued its dramatic course since the end of UNCLOS III, but recent development must wait to be taken up again in the context of the contemporary world. Reﬂections. The scale of reform achieved at UNCLOS III is surely impressive. It was the ﬁrst event in the history of international law and diplomacy to reﬂect the capacity of the entire community of nation-states to eﬀect a fundamental restructuring of central norms and institutions within the system. However, the motives at work were as complex as the dynamics of the process. Although the desire to correct disparities and inequities motivated many delegations in all three Main Committees, the famous conference was above all an exercise devoted to the accommodation of conﬂicting national interests (Miles, 1998). Never before had geographical location played such a conspicuous role in the making of international law, especially of course in the Second Committee where the jurisdictional nature of the issues on its agenda permitted trade-oﬀs among various geographical groups. The coastal states, the archipelagic states, and the broad-margin states had the most to gain as the majority at a redistributive conference predetermined to permit massive extensions of coastal state jurisdiction. These players were opposed only by a group of “landlocked and geographically disadvantaged states”, which, “although substantial in numbers, lacked the force in the operational world of ocean use to block outcomes which it did not like”. The developing countries with

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the longest coastlines and the most islands were the biggest gainers, but no more so in absolute terms than the equally favored developed states, such as Canada, Australia, and the United States, and other huge coastal states such as Russia. The biggest “losers” – or at least non-gainers – were the developing landlocked states, which include some of the poorest nations on the Earth. So if the outcome of UNCLOS III is judged by the criterion of distributive equity, there were victims as well as beneﬁciaries (Glassner, 2001). It remains to be seen whether the deep-ocean-mining regime of UNCLOS III will eventually bring substantial beneﬁt to the poorest nations, as hoped for by Pardo and the other idealists inside and outside the arena. In some areas the changes eﬀected in the new law of the sea owed as much to scientiﬁc and technical expertise as to the new politics of geographical advantage and the ethos of redistribution. The formula for determining the outer limits of the continental shelf beyond 200 nautical miles brings together experts in the ﬁelds of geology, geophysics, hydrography, and marine geodesy, and cognate disciplines, as members of the Commission on the Outer Limits of the Continental Shelf, to “consider” the data and other material that must be submitted by claimants to broad shelves extending beyond the 200-mile limits of the EEZ. The subsequently revised provisions on deep ocean mining also envisage procedures whose eﬀectiveness may depend on the ability of los tecnicos to hold their own in the familiar diplomatic struggle with los politicos. Science, however, is an unreliable foundation for long-term law reform. Only two decades after the end of UNCLOS III, new uses of the ocean were beginning to make the case for review and possible revision of the famous “sacred text” (Johnston, “RUNCLOS” 2003). We shall return to consider these new challenges in Part Six. Protection: The Arctic Environment The growing strength of international law in modern history has been linked with the trend to universality within the nation-state system. In earlier times the maintenance of civilized standards in state practice depended chieﬂy on the benevolence and wisdom of the strong: the leaders of the “leader states”. In looking back at the Age of European Ascendancy (say, 1648 to 1914), we see a mixed record of imperial greed and exploitation, on the one hand, and of progressive civic enlightenment, on the other. Some colonial victims of Western expansionism looked hopefully to international law as a shield against the encroachments of the imperial powers, which held all the economic and military advantages. At that time, there was still no “arena” where the weak could come together in collective defense against the strong. Outside Europe especially, diplomacy was almost entirely played out through bilateral relationships (Johnston, 1997; Simma, 1994). International law was seen to oﬀer protection to states exposed to the risks inherent in asymmetrical bilateral diplomacy. The creation of the League of Nations and the succession of the United Nations introduced a new age of international law and diplomacy, when the “international community” would ﬁnd expression less and less at the negotiating table of bilateral relations, and more and more in the global arena of “conference” diplomacy. As the memberships of the UN agencies moved toward the goal of universal participation, new demands were added to the old demands on international law as a protector of

International Law in Action

nations, peoples, and eventually of groups and individuals. Now, in the early years of the 21st century, the huge apparatus of international organizations no longer represents the only agency of the world community providing protection in the name of international law. The 18th century concept of “civil society” has returned in an age of global awareness, when the concerns of citizens click into an instant network of critics and petitioners. The two areas of contemporary international law that have expanded most rapidly in the last 50 years – human rights and environmental protection – have done so, in part, as a result of world-wide, electronically-assisted, citizen participation in world aﬀairs. Both are of great signiﬁcance in the modern transformation of international law, and indeed of human society. They have driven many specialists in these sectors to reconceptualize the system, less as a state-oriented law of nations and more as a law of all peoples that place human values rather than legal principles at the core. Some environmentalists go so far as to question the central position of the principle of state sovereignty in the traditional infrastructure of core concepts of international law (Litﬁn, 1998). Both ﬁelds, intensely ethical in orientation, attract the attention and allegiance of politically committed non-state groups and organizations, which have a collective inﬂuence on world aﬀairs that can sometimes prevail over all but the strongest governments. In particular, the growth of environmental concerns has introduced the international law community, both inside and outside government, to the need for a more innovative and sophisticated approach to the function of protection. Eﬀective responses to environmental concerns must be based on a very high level of technical knowledge as well as a high degree of sensitivity to the ethical and social implications of these concerns. In consequence, the ﬁeld of international environmental law, unlike the international law of human rights, has to take stock of “complex problems” as well as “fundamental issues” (Johnston, “Functionalism”, 1988). Environmental awareness is not entirely a modern phenomenon. Concerns about environmental health associated with salt and coalmines can be traced back to intelligent observers as early as Pliny the Elder (A.D. 23-79), who ironically succumbed to the sulfuric fumes of Mt. Vesusius. Environmental concern became a global priority in the late 1960’s, when it was designated as the focus of the world community’s ﬁrst “megaconference”: the UN Conference on the Human Environment held at Stockholm in the summer of 1972. Since then environmental protection has maintained a high priority on the world community’s agenda, and also in most regional arenas. Some readers may have ﬁrst heard references to international law in one environmental context or another: for example, the Chernobyl nuclear disaster, oil pollution of the ocean by stranded or colliding tankers, land-based pollution, the deterioration of air quality aggravated by transboundary emissions, threats to the survival of species, the despoilment of international lakes and rivers, nuclear hazards, the collapse of ﬁsh stocks, toxic and dangerous wastes, and, more recently, climate change (Kiss and Shelton, 1991; Churchill and Freestone, 1991) . How has international law coped with problems of such complexity? What is the record of success and failure? What role have legal norms (principles, rules, standards, criteria, recommended practices, and guidelines) played in these eﬀorts of the world community? Who are the key

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players in the international game of environmental politics? How serious is the problem of non-compliance in the ﬁeld of international environmental law? An interesting context in which to pursue some of these questions is the Arctic Ocean. This island-studded sea, largely ice-covered for most or all of the year, is often seen as a symbol of pristine purity, but it is now becoming the focus of various, often conﬂicting, interests and aspirations (Johnston, “Future”, 2003). Perhaps no other setting illustrates so clearly the diﬃculties of protecting the human environment. The story of eﬀorts to protect the Arctic Ocean from pollution begins in the 1960’s with a succession of oil tanker casualties in other seas. Today, with the beneﬁt of hindsight and careful research, we know that oil is not quite the critical threat to the marine environment it was believed to be in the 1960’s, at least compared with many other, more dangerous, substances. Most forms of oil and oily products break up fairly easily under normal seas, and rather quickly in stormy conditions. Yet oil pollution by vessels is a matter of continuing concern in three sets of circumstances. When a large tanker breaks up, through collision or grounding, a catastrophic spillage can have a devastating short-term eﬀect in the immediate vicinity. Spilled oil close to the shore can ﬂow into adjacent rocky inlets and estuaries and cause persistent and serious, if non-lethal, damage to marine organism, at the lower levels of the ecosystem. Moreover, the deliberate discharge of oil through the cleaning of ballast tanks, in approaches to straits and ports, results in accumulative pollution of potentially serious proportions. The problem of vessel-based (or ship-generated) oil pollution received a great deal of international attention in the 1960’s, and this resulted in the conclusion of several multilateral marine pollution agreements. The eﬀect of these legal instruments has been to reduce considerably the scale of the problem, although the credit must be shared with other factors: for example, improved technology such as double hulling, higher operational standards, and rising oil prices (which discourage economically wasteful discharges at sea). Progress is also being made with voluntary regional efforts to eﬀect “port state” controls over sub-standard vessels through more regular and more stringent ship inspections (Ozcayir, 2001). Yet the threat of ship-generated pollution in the Arctic Ocean continues to be a genuine concern. Despite the extreme diﬃculties of Arctic navigation, there has been slowly rising interest in the possibility of opening up the famous Northwest Passage to international navigation, including the transit of tankers, in the summer season. With accumulating evidence of rapid climate change in the Arctic, the prospect now is that the present 2-3 month High Arctic summer may be lengthened considerably over the next 25-30 years, enhancing the commercial attractiveness of the Passage as a waterway that would oﬀer a much shorter and cheaper sea-route between the Atlantic and Paciﬁc than the Panama Canal. It might also be more easily secured from terrorist attacks (Johnston, 2003). In the summer of 1969 the Northwest Passage became the scene of a famous incident. Controversy, we were reminded, can have a positive impact on the development of international law (Rosenne, 1986). In that summer the American tanker SS Manhattan navigated the water and ice of the Passage, apparently without the prior consent of the Canadian government. The voyage was intended to demonstrate the

International Law in Action

feasibility of utilizing ice-breaking supertankers on this route for the transportation of oil from the recently developed ﬁelds of Alaska’s North Slope to the markets of the US eastern seaboard (Bilder, 1971). At least to Canadians it seems obvious, from a cursory reference to cartographic evidence, that the Passage – any one of seven suggested routes – consists of Canadian waters. It winds its way through straits and other narrow waterways between dozens of frozen islands whose Canadian territoriality has never been challenged. The principal legal objection raised to the exercise of Canadian territorial sovereignty over these waters is that the Passage is an “international strait”: a strait “used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone” (UN Convention on the Law of the Sea, Article 37). In a strait captured by this deﬁnition, “all ships and aircraft enjoy the right of transit passage, which shall not be impeded …” (Article 38). Full transits of the Northwest Passage have been rare. If the list is restricted to commercial navigation, there is almost no history of full transit, and only a modest record of partial transit on a limited seasonal basis. Does the Passage, then, qualify as an international strait (Pharand, 1988)? The position of the United States and a few other states is that the Northwest Passage does so qualify, despite the thinness of the historical record. So long as there is a commercial advantage to be exploited, supportive legal arguments will come to hand, but “functionalist logic” suggests that this is not so much a juridical issue as a problem that might be solved through the negotiation of an arrangement (“regime”) that would be acceptable to potential transit states, although controlled by Canada as the managing state. On the basis of potential mutual beneﬁt, it is possible to imagine a regulatory regime of “transit management” specially designed to meet highly rigorous standards applicable to the world’s most formidable waterway (VanderZwaag and Lamson, 1990; Lamson and VanderZwaag, 1988). Back in 1969, the Manhattan transit caused a furor in Canada. Short of the chase for gold medals at the Winter Olympic, few events in the modern era have bound together the Canadian nation with such unyielding clamps of steel. Then it seemed important to search for a Canadian identity that would encompass uniquely Canadian, as distinct from North American, values and characteristics. Despite its location at the periphery of Canada’s geography – or perhaps because its remoteness kept it safe for Canada alone – the Arctic islands and waters together were seen as part of the core of Canada’s sense of itself. To many Canadian nationalists, the unconsented passage of a foreign vessel through Canada’s Arctic waters was not far short of an outrage. Nationalist sentiment could scarcely be expected to yield to the diﬃculty of lining the Arctic shores with artillery or patrolling the frigid oﬀshore with a ﬂeet of ice-breaking vessels maintained by the hard-pressed Canadian Coast Guard. The problem, as seen in Ottawa, called for an ingenious deployment of international law: a creative invocation to the protective function of the system. At that time, the hand on the Canadian tiller was that of Pierre Elliot Trudeau, a politician of unusual ﬂair and intellectual independence. It was the high summer of Canadian nationalism, and something had to be done about the challenge to Canadian sovereignty in the North. Trudeau was himself a capable lawyer, especially in the politically sensitive ﬁeld of labor law, and he had the further advantage of access to three gifted

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lawyer-diplomats: Ivan Head, Alan Gotlieb, and Alan Beesley. Together, these four faced the task of calling in the protective function of international law in defense of Canada’s Arctic waters. Ivan Head was essentially an academic, having taught international law at the University of Alberta at Edmonton before responding to Trudeau’s invitation to become his personal foreign policy adviser in Ottawa. Able advisers brought in from the outside to the Prime Minister’s Oﬃce might be construed as a threat to the bureaucratic elite of the federal government of Canada, which has a tradition of mandarin exclusiveness. Nowhere was this tradition more highly honored than in the ﬁeld of foreign policy, where the Department of External Aﬀairs (as it then was) was accustomed to being master of its own house. But Trudeau distrusted bureaucracy, and his disparagement of Ottawa’s diplomatic elite was overt. The partnership between Trudeau and Head started as a professional convenience, but over the years it matured into a personal friendship, reinforcing Head’s reputation as a skilful and inﬂuential player in Canadian diplomacy, without the beneﬁt of clergy as it were. Alan Gotlieb, Legal Adviser to the Minister of External Aﬀairs, was every inch a member of Ottawa’s select, along with his wife, Sandra, a well-known journalist who would later become a formidable hostess in Washington, D.C., when her husband became Canada’s ambassador to the United States. Like many of the top echelon in Ottawa’s bureaucratic hierarchy, Gotlieb had an impressive academic background, at Berkeley, Harvard and Oxford, but, unlike most with similar credentials he maintained a personal relationship with the scholarly community throughout his professional career. He was familiar with the nuances of the academic literature as well as the tricks of the diplomatic trade. Perhaps he was less comfortable with the cut and thrust of the conference arena and the role of confrontation, but he understood the practicality of the Canadian-US relationship. Alan Beesley was the youngest of the four, but by 1970 he had just succeeded Gotlieb as Legal Adviser. Of Trudeau’s three advisers on the Arctic issue, Beesley was the best suited for polite warfare in the arena. He would become well known on the international law-of-the-sea circuit. In 1970 The Third UN Conference on the Law of the Sea (UNCLOS III) was still in its preparatory phase, but already it was becoming evident that it would furnish Beesley a career-deﬁning opportunity to display his talents as a clever negotiator and a creative lawyer. Perhaps even more than Head and Gotlieb, who both had Harvard graduate law degrees, Beesley was essentially a jurisprudential product of the North American scene: a Yale functionalist without a Yale education. One suspects it was Beesley’s functionalist strategy that carried the day and inspired Canada’s innovative response to the Manhattan. It is important to recall that both Gotlieb and Beesley had the responsibilities that accrue to a Legal Adviser. What loyalties and responsibilities should we expect of such national government oﬃcials within the community of international lawyers? This question has been the focus of much scholarly attention in recent years (Merillat, 1964). The literature suggests the coexistence of three distinct types of Legal Advisers. Each raises a diﬀerent set of expectations.

International Law in Action

(a) A Legal Adviser is a technician, who oﬀers strictly legal advice to his or her government on request, much as a scientist, economist or other technical expert within the government sector does. He or she is expected to avoid matters of policy, but in the process may become “legalistic”. (b) A Legal Adviser is a policy adviser, who is expected to assist in the formation and implementation of the government’s foreign policy, but with special responsibility for explaining the relevant principles of international law and the legal implications of each alternative diplomatic option. (c) A Legal Adviser is a member of the international law community, whose professional responsibilities to the employer government have to be balanced against his or her ethical responsibilities to the international community. In many government systems, especially in developing countries, there is a tendency to treat the Legal Adviser and staﬀ as technicians, with little or no opportunity to inﬂuence policy-making. In other countries, especially in Europe and the AngloAmerican world, the Legal Adviser is invariably a senior and experienced diplomat, who as such is likely to be drawn into government policy-making, with or without less senior lawyer colleagues on staﬀ. Occasionally, however, it falls to certain Legal Advisers, alone or in association with counterparts from other governments, to take an initiative based on their reputation within the international law community. In some professional settings, a government international lawyer may start out strictly as technician on call, but advance eventually to a policy-oriented role, at least to a certain extent. Only those at the peak of the profession, with an exceptional personal reputation, may be encouraged to take upon themselves a leadership role in the international community, such as chairing a major conference or serving as rapporteur at a codiﬁcation or law-making exercise. There are also three distinct types of working environment for a government expert in international law. (i) Some experts of this kind work within a centralized legal services system, where one department, such as the Attorney-General’s Oﬃce or Ministry of Justice, accommodates all the government’s legal expertise, including that in the specialized ﬁeld of international law. (ii) Other legal advisers on matters of public international law are kept together as a separate cadre of lawyers with the foreign ministry, where it is expected they will acquire sophistication in foreign policy matters through daily exposure to professional diplomats. (iii) In still other cases, Legal Advisers come out of a lawyer-diplomat system, where they are fully integrated into the foreign service (Macdonald, 1977; Beesley, 1974; Schwebel, 1997; Fitzmaurice, 1965; Bilder, 1962). If the working environment were the only inﬂuence, we might expect Legal Advisers on international law who are nurtured in setting (i) to become competent technicians, surrounded continually as they are by other lawyers who work in a strictly professional culture, more or less detached from the “real” world of national interests, political sentiments, and economic and cultural disparities. If short, they might

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be expected to be rule-oriented”. Similarly, Legal Advisers cultured in setting (iii), surrounded constantly by full-time diplomats, should become “policy-oriented” and wary of the “artiﬁcial” world of international lawyers. Presumably, those developing their career in the middle, in setting (ii), are in danger of falling victim to an identity crisis, tugged in both directions at the same time. Needless to say, other factors impinge on the life and career of government international lawyers: the general culture, the legal tradition, the structure of power within the political/bureaucratic system, the jurisprudential leanings (if any) of the school in which the individual was trained, and of course the force of the individual’s own personality. By 1970 the Canadian Department of External Aﬀairs (DFAIT) had seen diﬀerent kinds of Legal Advisers emerge from the Ottawa system, which was (and still is) a hybrid between settings (ii) and (iii). DEA was, and its successor, the Department of Foreign Aﬀairs and International Trade (DFAIT), is, a system of separate legal expertise divorced from the general cadre of government lawyers in Justice. Lawyers engaged by DFAIT become and remain Foreign Service oﬃcers, who are attached to the Legal Oﬃce periodically between overseas assignments in Embassies, High Commissions, or UN or other Missions. They alternate between the arena and the legal profession. While home, in Ottawa, they resume their legal career but against a background of “real world” experiences and expectations. A Canadian Legal Adviser could go with the “rules” or with “policy” considerations, usually a bit of both. But “policy orientation” can vary. On the one hand, the Legal Adviser is “an employee of his government. His duty is to his government, which engages him, and is entitled to demand the best service of which he is capable. If what he is asked to do is distasteful, contrary to his conscience or professional standards, he can, of course, terminate the relationship” (Macdonald, 1977). Many distinguished Legal Advisers have claimed to have a detached technician’s role, especially in legal cultures where rule-oriented “legal positivism” tends to be the jurisprudential mainstream. Sir Gerald Fitzmaurice, an eminent Legal Adviser to the British Foreign Oﬃce (BFO) in the 1950’s and 1960’s, was one such claimant. A rule-oriented “formalist” to his ﬁngertips, Fitzmaurice saw himself as inheritor of a BFO tradition of political neutralism established by the ﬁrst predecessor, Sir Edward Davidson (Fitzmaurice, 1965). However, his claim to be a politically neutral technician has been challenged recently by two British scholars, who show from the evidence provided by the UK government archives that Fitzmaurice was often centrally involved in policy discussions with his non-lawyer colleagues (Carty and Smith, 2000). He seems, in short, to have belonged to category (ii), a policy adviser with special legal responsibilities. Later in his career, Fitzmaurice moved to category (iii) as a member of the International Law Commission, and then as a member of the International Court of Justice (eventually as President of the Court). The point is that the ablest Legal Advisers often change roles as their careers advance and present new opportunities and responsibilities. Ethicists argue that Legal Advisers, albeit government employees, have a responsibility to balance their contractual duties with an obligation to international society in general, and to the international law community in particular. Macdonald (1977) maintains the view, shared by many academic colleagues, that the Legal Adviser is “in reality the custodian and exponent of international law for the foreign ministry. He

International Law in Action

has international law in his care”. This view has also been espoused by other predecessors of Fitzmaurice, such as Sir John Fisher Williams, and by many US counterparts, including Ernest A. Gross and Loftus Becker, Stephen Schwebel (Schwebel, 1991) and other advisers trained in the US rule-oriented school of jurisprudence. Even more clearly, this ethical position has been adopted by policy-oriented American academic international lawyers such as Richard Falk (Falk, 1972). Legal Advisers, then, are often called upon to ﬁnd a balance, especially perhaps those who come out of settings (ii) and (iii). The trickiest balance of all is that between the policy suggested by the national interest that the adviser is contractually bound to serve and the policy of progressive development of international law in the common interest of world society. It was this balance that Alan Beesley had to ﬁnd in 1970, in a context with which world society had very little familiarity. The Canadian response to the Manhattan incident in 1969 was to introduce federal legislation, the Arctic Waters Pollution Prevention Act of 1970, which asserted Canada’s jurisdiction over all shipping in contiguous zones up to 100 nautical miles oﬀ its Arctic coastline in order to guard against pollution of the region’s coastal and marine resources. Reﬂecting the growing pollution concerns of coastal states around the world, this action seemed to threaten similar unilateral initiatives by other countries with less justiﬁcation. To many it appeared to exert dangerous pressures on traditional doctrines related to contiguous zones, coastal archipelagoes, innocent passage, and of course international straits (Bilder, 1971). The Act deals with the prevention of Arctic water pollution arising from shipping, from land-based installations, and from commercial activities such as oil drilling. It prohibits, and prescribes penalties for, the deposit of “waste”, widely deﬁned, in designated waters and inland areas adjacent. Within shipping safety control zones, regulations apply to such matters as hull and fuel tank construction, navigational aids, pilotage, safety equipment, time and route passage, and icebreaker requirements. Pollution Prevention Oﬃcers authorized to board any ship within the safety control zones for inspection purposes or to exclude vessels suspected of non-compliance with these Canadian requirements. In the event of such violation, Canadian oﬃcials are authorized to seize a vessel or its cargo anywhere in these and other Canadian waters, if there is reasonable ground for suspicion. In serious situations, the Governor General in Council (i.e. the Canadian Cabinet) could order the destruction or removal of ships in distress which are depositing waste, or likely to do so, in Canadian Arctic waters. The critics of 1970 feared this legislation would restrict or even preclude the passage of foreign vessels through Arctic waters (Henkin, 1971). The Canadian position was that an unprecedented initiative of this kind was necessary because of the uniquely vulnerable and fragile status of the Arctic marine environment. The approach adopted for environmental protection purposes was characterized as “independent of considerations of sovereignty”, based instead on “functional and scientiﬁc considerations”, and on the “fundamental right of selfdefense” (Beesley, 1971). Insistence on the traditional freedom of navigation, it was argued, ignored the special nature of the case. The action was conceded to be unilateral in form, “ahead of international law”, but it was suggested that the Canadian legislation would “spur the development of a comprehensive system of international

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environmental law” (Legault, 1971). Principled unilateralism in other contexts had been shown to be a constructive input into the development of international law (Gotlieb and Dalfen, 1973). However, because of its novelty, this action was accompanied by an announcement of Canada’s termination of its acceptance of the compulsory jurisdiction of the International Court of Justice, and its replacement by a new reservation excluding disputes related to the control of marine pollution and the conservation of the living resources of the sea. As Prime Minister Trudeau acknowledged, “Canada was not prepared to engage in litigation with other States concerning vital issues where the law is either inadequate or non-existent and thus does not provide a ﬁrm basis for judicial decision”. When a national government takes action that is seen to be controversial in international law circles, ripples can be expected to spread throughout the pond. When the action raises concern rather than alarm – generating a serious “issue” but short of a “dispute” or “conﬂict” – two sectors of the international law community can be depended upon to reﬂect that concern, and to provide a measure of the oﬀence given. At the government level, the oﬃcial response can take the form of a “diplomatic protest”, delivered to the oﬀending government by the medium of a semi-formal, but usually unpublicized, “note” (McKenna, 1962). This barely discernible reaction has been likened to the beat of a “distant drummer”. Only a few governments can be said to specialize in this nuanced mode of diplomatic dissent. Of these, perhaps only the United States could be characterized as a “persistent drummer” (Stein, 1985). Protest is a relatively mild rebuke, somewhat lower in intensity than a “diplomatic sanction” such as the withdrawal of an ambassador or the closure of one’s embassy. It is more legal than political in signiﬁcance, the product of a technician’s internal memorandum to the foreign minister observing that their government should not be seen by posterity to have acquiesced in the oﬀending act. In a matter that has triggered diplomatic protest, the relationship between the two governments remains unimpaired, but “without prejudice” to the protestant’s rights under international law. The United States was prompt in issuing its protest against the Canadian Arctic initiative: on April 9th, 1970, just two days after the Canadian government’s announcement. “The United States does not recognize any exercise of coastal State jurisdiction over our vessels in the high seas and thus does not recognize the right of any State unilaterally to establish a territorial sea of more than three miles or exercise more limited jurisdiction in any area beyond 12 miles … If Canada had the right to claim and exercise exclusive pollution and resource jurisdiction in the high seas, other countries could assert the right to exercise jurisdiction for other purposes, some reasonable and some not, but all equally invalid according to international law” (cited at Bilder, 1971). Even more reliably than the most persistent of distant drummers, the academic research community is almost certain to discern a legally controversial act. Few outside the ﬁeld are likely to appreciate how inﬂuential some scholars often are in the analysis and evaluation of events with an international law dimension. The pen may not be mightier than the sword, but it can cut a wide swathe.

International Law in Action

By far the largest meeting-place of academic international lawyers is the annual conference of the American Society of International Law (ASIL). Several other countries have their own national society of international law, consisting in several cases of 100 or more members, but the ASIL’s membership is close to 3,000 and its annual conference often attracts 1,000 or more. Many of the members are from outside the United States, including dozens of Canadian international lawyers. So it came about that the Manhattan controversy was catapulted on to the ﬂoor of the ASIL. Moved by national sentiment – and perhaps respect for “functionalist logic” – four academic lawyers on the faculty of the University of Toronto decided that their voices should be heard (Ronald St. J. Macdonald, Gerald L. Morris, Richard Arens, and Douglas M. Johnston). A statement in defense of the Canadian government’s action was composed, and it was decided that, in the tradition of manifestoes, it should be exposed to the light of day. Armed with Canadian virtue, two of them agreed to ride into the arena. The program of the ASIL’s annual conference that spring was, of course, designed many months before the introduction of Canada’s provocative bill. So the conspirators from the North hoped merely that some notice would be taken of the 70 copies of their manifesto, which were left conspicuously on a table outside the door of one of the early sessions. By the end of lunch-time, the copies had all been taken, presumably by 70 diﬀerent participants. After lunch, at a session convened to discuss an unrelated topic, it proved possible to use question-time to draw attention to the statement, and to the buzz it had caused. But on the following day, on an equally irrelevant occasion, the Canadian Arctic controversy re-surfaced and drew into collision America’s two leading scholars in the ﬁeld of international law. Wolfgang Friedmann was a highly respected scholar, as eminent in the general domain of jurisprudence as in the particular discipline of public international law. Born and trained in Germany, he was one of numerous Jewish scholars who have made major contributions to the theory and practice of international law. After a brief, academic appointment at the University of Toronto, he assumed a chair at Columbia. Although a legal formalist by training, Friedmann was an eloquent articulator of modern thinking in the ﬁeld, a sociologically-oriented bridge-builder who saw merit in North American functionalism as an emollient needed to soften the rigidity of European formalism. Moreover, as a liberal social democrat, he felt the necessity also for mediation between the opposing camps of international law theory in the Cold War era. In his most famous work in the ﬁeld of international law, he advocated the cause of an “international law of coexistence” (Friedmann, 1964). Tragically, his brilliant career ended on a dark and dangerous night, on the streets of New York. As a friend of Canada, Friedmann was pained by the sight of the Canadian government’s resort to unilteralism, which to a formalist is an act of sin. Although prepared to accept the need for special protection of the Arctic Ocean, he deplored action such as this that suggested rejection of the multilateral organization available for negotiating global marine pollution agreements: IMCO, as it then was. The other Titan in the audience, Myres S. McDougal, rose to the jurisprudential occasion. Also a friend of Canada, he defended the Canadian legislation as a well-in-

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tentioned, and environmentally justiﬁed, course of action, but, in particular, he seized on Friedmann’s remarks as an example of misplaced faith in the suzerainty of form at the expense of substantive merit. As the co-architect (with Harold D. Lasswell) of policy-oriented jurisprudence (the “New Haven School” associated with Yale Law School), McDougal insisted on the need to look always into context in order to determine the reasonableness of any state’s action or response (American Society of International Law Proceedings, 1970). As we shall see in the following Chapter, the McDougal-Lasswell theory of international law involved the most radical break with the European rule-oriented tradition of legal formalism. Two months later, in June 1970, the drama moved into another theatre. Since 1966 June had become the month when the leading scholars and practitioners in the lawof-the-sea community descended on the sunny campus of the University of Rhode Island, where three non-lawyers (John Knaus, Lewis Alexander, and Dale Krause) had created the Law of the Sea Institute (LSI), despite the absence of a law school. In the 1970’s the annual LSI conferences would crackle with new ideas about the changes needed in ocean law in order to reﬂect the new realities of ocean use and to accommodate the new demands for eﬀective ocean management. The LSI ethos was receptive to a sustained and vigorous debate on the merits of the Canadian legislation. It was there that the theoretical case for a negotiated regime of “transit management” for the Northwest Passage was ﬁrst put forward (Johnston, 1971), and that the Canadian government resort to functionalist jurisdiction was ﬁrst defended before an audience of ocean law specialists (Legault, 1971). Despite concerns about “creeping jurisdiction” and the unusual application of self-defense doctrine, some points were conceded to Canada in a friendly, but critical, setting. At the governmental level, the reception was initially less friendly and even more critical. The Canadian government’s action had been precipitated, in part, by its frustration with the international arena for “progressive” thinking about preventive, as distinct from remedial, approaches to vessel-source marine pollution problems. Many of Canada’s proposals had already been defeated at IMCO and other conferences, which tended to be dominated by commercial shipping interests rather than environmental concerns. However, the impending UN Conference on the Human Environment, scheduled to be held at Stockholm in the summer of 1972, and the Third UN Conference on the Law of the Sea (UNCLOS III), already in preparation, were opportunities for Canada to plead the general case for tighter controls over ship-generated pollution, and the special case for protecting the Arctic marine environment. Although the Canadian government was involved in virtually all areas of the Stockholm agenda, the topic of marine pollution prevention and control had a particularly high priority in Ottawa. So its unilateralist image acquired through its Arctic policy of 1970 was modiﬁed by its prominence in helping to develop draft principles on the prevention and control of marine pollution for the Stockholm conferences, since these principles gave proper weight to the need for international cooperation. In identifying itself with coastal, rather than shipping, states, Canada improved its prospect of winning general support from Third World countries for its preventive approach to marine pollution and

International Law in Action

helped to supply the deﬁciencies inherent in the remedial (liability) approach associated with IMCO (Johnston, 1974; Gold, 1971). As for its special vulnerability in the Arctic Ocean, Canada also won a measure of support at UNCLOS III, where the delegations accepted the unique status of that ocean by endorsing the proposal for an “Arctic exception”, as set out in Article 234. So, by the standards of the 1970’s, the Canadian ﬂirtation with unilateralism was harmless, and Ottawa could take some satisfaction from the fact that its functionalist philosophy turned out to be the prevailing approach to several other contemporary issues in the new law of the sea. It was a calculated gamble that won global recognition of the unique status of Arctic waters. Reﬂections. Since the 1970’s international environmental law has become the fastest developing sector of specialization within the ﬁeld of international law. It also shares with human rights the claim to be evolving at the ethical center of world community law. Its growth has accelerated due to growing concerns almost everywhere about diverse threats to the planetary environment. Salient among the concerns are those urged upon the inter-state system by thousands of non-governmental groups and organizations that make up the “transnational ethical community”. So international environmental law has become a convergence of many disciplines, energized by a phenomenal fusion of emotion and reason. As we shall see in due course, the last three decades of the 20th century were a period of unprecedented energy and innovation for specialists in this new area of international law. No other area illustrates better the need for intellectual sophistication as well as technical rigor in the development of the international law system: in the negotiation of many kinds of instruments required for the eﬀective protection of our environment and for the management of all human activities impinging upon it. With the emergence of “soft law” norms, instruments, and strategies, international environmental lawyers now have to grapple with challenges that have not been faced before (Shelton, 2000). In some contexts obligations that have a familiar binding force, in conventional or customary international law, have been supplemented with commitments, which possess a convincing ethical character but an uncertain legal status. The traditional distinction between “law” and “morality”, insisted upon by Western jurists since the days of the Roman Republic, has become less distinct. In the Arctic region there is continuing anxiety regarding threats to the marine environment, but in some Arctic areas since 1970 there has been a shift in expectations. Especially in the North American sector, but also more generally, the indigenous peoples of the region have established their own political systems with a higher degree of autonomy and responsibility. In the decades to come, they will have to ﬁnd their own balance between demands for economic and social development and the need for protection of their uniquely vulnerable environment. The role that the global legal community will play in this search for sustainability in the North remains unclear (Johnston, “Future”, 2003).

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Intervention: Sovereignty and Security The War Prevention and Management Regime. There are many causes of human misery. Until the modern era only one was deemed to fall within the domain of international law: the “scourge of war”. One of the most tragic features of world history is the rarity of eras of enduring peace among nations. Resort to war has been so normal over the stretch of time that we have all inherited a tradition of acceptance that hostility is more or less inherent in human behavior. Before the Peace of Versailles (1919) the notion that war could be prevented by an act of collective repulsion was conﬁned to a relatively small battalion of determined idealists – mostly poets, paciﬁsts and international lawyers. The ﬁrst mass evidence of changed thinking about the feasibility of war prevention did not appear until the total misery of the First World War was projected into social consciousness – perhaps not so much by surviving veterans as the popular media (Ferguson, 1999). But war poems are for reading once a year, when pity for the victims of war is mixed with the thrill of national honor; and the cause of paciﬁsm is always vulnerable to distortion by the politics of public demonstration. The idea that war can be “managed” – controlled within certain limits – is also an old one. So too is the notion of international cooperation devoted to that end. In 1815 a coalition of governments brought down Napoleon, a despot and common enemy. Then the coalition “fell apart on the rocks of conﬂicting national interests and diﬀerent concepts of what constituted the peace of Europe and how that peace could best be maintained” (Goodrich, 1977). Yet, for want of any alternative, the cause of war management has depended on the communities of international law and diplomacy. For many centuries – most clearly since the 17th – these two communities have been joined at the hip. The history of international law is so closely associated with that of inter-state diplomacy and the treaty-making function that these activities can be taken together as aspects of the same phenomenon: the authoritative response to fundamental issues and complex problems aﬄicting humanity. International law provides the “framework” for diplomacy, and also serves more modestly as an “instrument”, part of the “tool-kit” of modern diplomacy. Even legal formalists – those most insistent on the credentials of the discipline as a science – ﬁnd it diﬃcult to reject the idea that international law is “built on political foundations”. The classical law of nations evolved chieﬂy during the period of imperialism. The case for enlightened modern empire has been made recently against the current of mainstream opinion (Ferguson, 2001). It was the empire of ancient Rome that produced the longest-lasting era of international peace, security and economic stability ever recorded. However we choose to balance the pros and cons of imperialism, we cannot mistake the weakness of traditional international law as a constraint on war during the period of European imperialism. Through the late colonialist period of the League of Nations, the international legal system remained essentially a matter of inter-state convenience, a bilateralist system of “transactions” and mutual beneﬁts designed to serve the common interest of nations that qualiﬁed as sovereign and independent. The system was ethically enhanced, but not transformed, by the Covenant. Its chief claim to be a system of justice was the

International Law in Action

principle of reciprocity. The neo-classical international law of the inter-war period was still statist in orientation: individuals, peoples, and enterprises did not exist as “subjects”, as bearers of rights and duties. The principle of state sovereignty shielded all regimes, including the barbaric. The principle of state equality ensured that all ruling elites would be entitled, at least in times of peace, to the same courtesies and immunities regardless of their deeds and intentions. In 1945 all of this changed. The slaughter of the First World War, the failures of the League, the horror and the holocaust that followed, all contributed to a new determination to re-make the world community, and to place it on a permanent legal basis. Throughout the Second World War the goal of designing a world organization to replace the League had been a more-or-less constant topic on the agenda of the Allied leaders. Even before Pearl Harbor this task of reconstruction was discussed at the 1941 meeting between Roosevelt and Churchill. The ﬁrst draft of the new Charter was done by oﬃcials of the US State Department in 1943 under the direction of Secretary of State Cordell Hull. An agreement in principle was reached by the four leading Allies: China, the United Kingdom, the USSR, and the United States. The details of a new and more eﬀective mechanism for the maintenance of international peace and security was worked out by representatives of these governments at Dumbarton Oaks in 1944. These proposals became the basis of discussions in the following year at San Francisco, where the plenipotentiaries of over 40 countries convened to negotiate the remaining issues on behalf of the international community. The ﬁnal version of the Charter was signed on June 26th, 1945, and entered into force on October 24th. One of the bitter lessons learned from the peace-maintenance failures of the League – in Manchuria, Ethiopia, the Rhineland, and elsewhere – was that a global organization could not possibly meet such a challenge without the full and active participation of all the major powers. Many observers had predicted the failure of the “great experiment”, which owed much to the idealism of Woodrow Wilson, when it became obvious in the early 1920’s that the League would have to lumber along without the United States. Through the early 1940’s it was never doubted that a new beginning would have the beneﬁt of US leadership. Nor was it ever suggested that the eﬀort should proceed without the Soviet Union, despite daily reminders that the post-war era would be complicated by US-Soviet rivalries. Faith in the possibility of common values and universal legal principles had to carry the day. The purposes of the United Nations, enunciated in Article 1 of the UN Charter, resonate with even greater clarity than the well-intentioned Covenant of the League. The new organization was mandated: (i) to maintain international peace and security; (ii) to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples; and (iii) to achieve international cooperation in all civic sectors through respect for human rights and fundamental freedoms. It might be inferred that these three purposes were intended to be of equal importance. The purposes of the United Nations are followed in Article 2 by a statement of principles. Of these, four in particular seem designed to serve ends rather than means: (i) the principle of sovereign equality; (ii) the ideal of peaceful settlement of international disputes; (iii) the obligation to refrain from the threat or use of force against

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the territorial integrity or political independence of any state; and (iv) the prohibition against interference in matters which are “essentially within the domestic jurisdiction” of any state. These principles, unlike the purposes of Article 1, seem designed to protect the sanctity of the state rather than the welfare of society. Yet, unmistakably, Article 1 combined with Article 2 of the Charter transformed the system of inter-state relations into a venture with special ethical demands on international law. Now, in its neo-classical (“communitarian”) stage of development, international law was to have moral purposes at its core: peace, respect, and human rights. To pursue the ﬁrst of these UN goals, the United Nations Security Council was given “primary responsibility” under Article 24 (1) of the Charter for the maintenance of international peace and security. All UN members, under Article 25, are obligated to “accept and carry out” the decisions of the Security Council in accordance with the Charter. On the face of things, the Council was given virtually supreme authority in the all-important domain of war prevention and management. No constitutional checks and balances exist to make Council decisions reviewable by a judiciary such as the UN’s own International Court of Justice (ICJ). The only recourse to the ICJ for an authoritative interpretation of the Charter is under Article 96, which permits the Security Council and the General Assembly to request the Court to give an “advisory opinion on any legal question”, and authorizes other UN organs and specialized agencies to make a similar request, but only on “legal questions arising within the scope of the their activities” and only if approved by the General Assembly. Over the years, then, the Council and the Assembly could, theoretically, have sought an advisory opinion from the ICJ on the scope of the Council’s peace maintenance powers, but they have chosen not to do so. Such questions have been judged in the arena to be too Apolitical” to be amenable to legal interpretation. In the general view, the Council and Assembly are quintessentially political institutions that must be left to determine the appropriateness of their own actions, albeit within an institutional framework that is as much “legal” as Apolitical”. So the unreviewable authority of the Council, at the core of the world community’s war prevention and management system, is one of the paramount features of the United Nations. On the face of things, the powers of the Security Council range from moral suasion and various forms of peaceful settlement under Chapter VI of the Charter to coercive sanctions that may include the use of force under Chapter VII. Yet it is not accurate to say that the Council has a legal monopoly over the use of force, or that “war” has been proscribed by the Charter. Political realism at the preparatory conferences ensured that states would preserve the right of self-defense that they had always been conceded to have under customary international law. Article 51 of the UN Charter acknowledges “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, unless the Security Council has taken measures necessary to maintain international peace and security” [emphasis added]. However, the exercise of this right of self-defense “shall not in any way aﬀect the authority and responsibility of the Security Council … to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.

International Law in Action

Moreover, Chapter VIII of the Charter recognizes the existence of “regional arrangements or agencies” for dealing with “such matters relating to the maintenance of international peace and security as are appropriate for regional action”. So it was foreseen that circumstances might arise where political tensions between global and regional diplomacy would have to be resolved, either within or outside the framework of the UN Charter. Despite the emergence of the new ethos of collective security, it might have to co-exist with the familiar geopolitics of alliances and coalitions. The Charter went further and provided – with “ﬁngers crossed” – a mechanism designed to help implement Security Council decisions involving the use of military force. Article 47 established a Military Staﬀ Committee to “advise and assist the Security Council on all questions relating to the Security Council’s military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament”. The Committee was to be “responsible under the Security Council for the strategic direction of any armed forces placed at the disposal” of the Council under Articles 43 and 45. The Committee met brieﬂy in 1945, but, frozen by Cold War paralysis, it could make no progress over the composition and disposition of military resources under the Charter. The United States and the Soviet Union were equally reluctant to hand over the strategic option to the United Nations. Condemned to minority status, the communist states were particularly suspicious of eﬀorts to strengthen the hand of the Council in the absence of collective will to operate Chapter VII in the manner intended. The other principal blockage was the arrangement under Article 23 of the Charter that the 15-member Council would consist of ﬁve permanent members (China, France, the USSR, the United Kingdom, and the United States) and ten others elected for a term of two years. In order to ensure the paramountcy of the victorious Allies within the Organization, the permanent members (the AP5”) were guaranteed under Article 27 the permanent privilege of veto on substantive (i.e. non-procedural) matters, so that decisions on such issues required an aﬃrmative vote of nine including the concurring votes of the P5. Crippled in these two ways, the war prevention and management regime of the United Nations has had to struggle for survival. Yet, despite the diﬃculties thrust upon it, the Security Council has been extremely active. Over the years it has been called upon to respond to over 40 “threats to the peace, breaches of the peace, and acts of aggression”, as well as to other issues relevant to the purposes and principles of the United Nations. Unlike the General Assembly, the Council is always on call, because of its emergency mandate and its special executive responsibilities. Between January 1946 and December 2000, the Council adopted no less than 1,334 resolutions: an average of 24 for each year of its frustrated, veto-ridden existence. How successfully has it managed to balance the various and competitive tasks assigned to the United Nations? To what extent, in particular, has it been able to discharge its function of intervention? To answer these important questions, it is necessary to trace, brieﬂy, the political evolution of UN intervention in theory and practice.

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Korea. Throughout the 20th century and into our own era, the Korean people have had to bear many burdens. The heaviest has been the burden of foreign occupation. In 1945 the geopolitical circumstances in the ﬁnal stage of World War II led to the decision at the Potsdam Conference to divide the peninsula into two zones, through partition at the 38th Parallel. Immediately after the conference Stalin moved some 100,000 communist troops into northern Korea under the command of Kim Il Sung, named after the legendary Korean guerilla leader of the 19th century. At that time the nearest US forces were in Okinawa, 600 miles away. Four weeks later the US forces arrived. Diplomatic eﬀorts to eﬀect a cooperative US-Soviet regime in the Korean peninsula, in accordance with the 1945 Moscow Agreement, failed to clear the ground. In frustration, the US government under President Truman took the matter to the United Nations, where the General Assembly called for elections to be held throughout Korea in the spring of 1948. A nine-member Temporary Commission was appointed to supervise this ﬁrst Korean experiment in democracy, but the Commission was spurned in the North. In the South the election resulted in the victory of Syngman Rhee and the establishment of the Republic of Korea. So the period of US inﬂuence in the peninsula began with an autocratic regime controlled by a ﬁery, Americaneducated aristocrat. Rhee’s credentials for leadership were impressive: a prolonged period in exile as a young man, when he took a Master’s degree at Harvard and completed a PhD in international law at Princeton under Woodrow Wilson; and then imprisonment and torture for resistance to the Japanese authorities in occupation of his country. The North retaliated by proclaiming the People’s Democratic Republic with a constitution built on the Bulgarian model of democracy (Leckie, 1996). Rhee was rather heartily disliked by Truman, who resented his highhanded manner. Equally objectionable was Rhee’s “passion for unifying his country by force”, at a place and time when judicious statesmanship might have prevented the impending descent into hell. The civil war that ensued was to cost many billions of dollars and hundreds of thousands of lives in a “conﬂict of shadowy nuances, subtle limitations and ambiguous results” (Stokesbury, 1988). Historians have allotted some of the blame to US Secretary of State Dean Acheson, whose famously imprudent speech in January 1950 left the impression that Korea and Formosa had been excluded from the defense zone in the Far East, where the US government acknowledged its commitment to intervene in the event of aggression against its allies. Most may agree that the error was compounded by Senator Connally, who misused his chairmanship of the Foreign Relations Committee to declare a non-existent policy that the United States would acquiesce, if the Soviet Union chose to intervene in South Korea in response to Rhee’s belligerent threats. On June 25th, 1950, the North invaded the South, apparently at the urging of Stalin, who sensed a weakness in the capitalist ranks. Four days later Seoul had fallen. Truman ordered General MacArthur to deploy the US air and naval forces in the region against all North Korean troops found south of the Parallel, and sent the Seventh Fleet into Formosa Strait to prevent MaoTse-tung and Chiang Kai-shek from extending their own civil war into the East China Sea. Resistance to North Korean aggression began, then, with unilateral US action.

International Law in Action

On June 27th, by Resolution 83 (1950), the Security Council sent the United Nations to war. It was the ﬁrst resort to force under Chapter VII to combat aggression and maintain international peace and security. The resolution was adopted by a majority consisting of the Republic of China (Taiwan), Cuba, Ecuador, France, Norway, the United Kingdom and the United States. Yugoslavia opposed, and India and Egypt abstained. At that time the Soviet representative was implementing a boycott policy over the question of Chinese representation in the UN. Thereby the Soviet Union missed the opportunity to block Security Council action by exercising its veto as a permanent member. Altogether 15 nations responded to the Council’s request for assistance by providing military forces: Australia, Belgium Canada, Columbia, Ethiopia, Greece, Luxemburg, Netherlands, New Zealand, the Philippines, South Africa, Thailand, Turkey, the United Kingdom and of course the United States. Medical aid was dispatched by Denmark, India, Italy, Norway, and Sweden. The United States responded quickly by re-assembling massive ground forces in South Korea. Technically, the hostilities between the North and South might have been regarded by the Security Council as a “civil war”, since neither side was recognized as a sovereign state by the international community as a whole, nor considered eligible for membership in the United Nations (and thus legitimized through that form of “collective recognition”). For the majority on the Security Council, however, the “armed attack upon the Republic of Korea by forces from North Korea” constituted a “breach of the peace”. References to “the authorities of North Korea”, rather than the government of the People’s Democratic Republic of Korea, reﬂect a less-than-evenhanded, politicized, yet surely necessary, treatment of a dangerous situation. On the 7th of July, by Resolution 84 (1950), the Council went further, recommending that all states providing assistance should make their forces available to a “uniﬁed command under the United States” and requesting the United States to designate the commander of such forces. When the Soviet representative, Mr. Malik, returned to the Security Council, it was to characterize the hostilities between North and South Korea as a civil war and therefore lacking the character of “aggression” under the Charter. Indeed, he asserted, it was the United States that was the aggressor, having “invaded” Korean territory, although without a formal declaration of war (Sohn, 1956). Against this assertion, it was pointed out that in December 1948 the UN General Assembly by Resolution 195 (III) had recognized the government of the Republic of Korea as a lawful government “having eﬀective control and jurisdiction over that part of Korea where the Temporary Commission was able to observe and consult”, and where elections had been held as “a valid expression of the free will of that part of Korea”. Even at that time the promotion of democracy was regarded as relevant to decision-making by the political organs of the UN. By spurning the Temporary Commission, the “authorities in the North” remained unrecognized as a lawful government. As so often in the future history of the United Nations, both in the Assembly and Council, politics and law intermingled to serve the will of the majority. The return of the Soviet Union to the Security Council – the end of its “washroom diplomacy” – marked the end of successful eﬀorts to circumvent the veto system.

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Further exercise of the UN’s powers of intervention rested with the General Assembly, which could pass recommendations without such a hindrance, and with the “executive powers” of the UN Secretary General. It was pointed out during the famous “Uniting for Peace” debate in the Assembly, in September 1950, that the obligation to take action to maintain or restore peace “does not disappear because of a veto”. In Articles 10,11, and 14, it was argued, the Charter vests in the General Assembly secondary or “residual” authority and responsibility for matters aﬀecting international peace, if the Security Council is prevented from discharging its Aprimary responsibility” as conferred in Article 24. Indeed at the founding conference of the United Nations in San Francisco, it was said, the smaller states had entrusted the victorious powers with the veto only on condition that the General Assembly was granted a last-resort authority to intervene, and to make recommendations within the framework of Chapters VI and VII, in cases where the Council was unable to discharge its primary responsibility (Sohn, 1956). The transfer to the General Assembly required some legal sleight-of-hand in the Security Council. It had to be treated as a “procedural” matter under Article 27 despite its “importance”. This determination itself was determined to be “procedural”, as smoothly argued by Britain’s urbane representative, Sir Gladwin Jebb. The transfer of authority proved to be crucial. On November 1st, 1950, the People’s Republic of China (PRC) entered the war on behalf of North Korea because of the perceived threat to its borders by the US-led coalition, which had pursued the North Korean aggressors across the 38th Parallel. The PRC thus brought itself into conﬂict with the United Nations, from whose membership it was excluded and would remain excluded until the early 1970’s. A joint draft resolution proposed to the Security Council condemning the Chinese action as “aggressive” was vetoed by the Soviet Union. On February 1st, 1951, by virtue of the “Uniting for Peace” resolution, the General Assembly took hold of the matter, branding the PRC government as an aggressor and calling upon it to withdraw from Korean territory. Throughout the remainder of the war the UN role was articulated by the General Assembly. Intervention and Peacekeeping Issues (1954-1989). The “Korean Question” on the Security Council’s agenda was only the most dramatic of many international security crises that foundered on the rock-hard realities of the veto system. Throughout the remainder of the Cold War period, down to the late 1980’s, there were several other instances where it proved impossible to obtain the necessary number of votes in the Council in support of eﬀective UN intervention. In the 1954-1989 period, Cold War animosities frequently caused paralysis in the Council, where the superpower protagonists deployed their veto powers to their own bloc’s political or ideological advantage. Indeed the UN Security Council became the cockpit of great-power confrontation. With the Council proven to be increasingly ineﬀective as the decision-making mechanism it was intended to be, issues related to the maintenance of international peace and security moved increasingly into the veto-free but non-decisional arena of the UN General Assembly. For 35 years after the Korean War the reputation of the United Nations as a problem-solving institution suﬀered grievously because of its

International Law in Action

poor record on peace maintenance. Professional diplomats, UN oﬃcials, and international lawyers all strove in ingenious ways to control the damage caused to the UN system, and to the ideals of international law, by the highly divisive politics on display on the banks of the East River. Some of the issues involved need to be examined. Given the problem of political deadlock, it has always been a matter of controversy how to allocate peace maintenance responsibilities between the Council and the Assembly. The Charter is not explicit on this issue and lawyers tend to diﬀer on points of interpretation. Politics apart, some lawyers tend to be “strict constructionists” on principle, whereas others argue in favor of “teleological” interpretations of general provisions. In the case of the UN Charter, the latter choose to be “guided”, if not “governed”, by the purposes and principles of the United Nations as set out in Articles 1 and 2. On the other hand, those wishing to interpret the text restrictively insist on the importance of adhering to the original or presumed intention of the parties, as reﬂected in oﬃcial documents such as the records of the founding conferences at Dumbarton Oaks and San Francisco. Those of the strict constructionist school have often maintained that the Charter is “just” an important treaty, and therefore not unlike a contract, and that it should be interpreted in light of the parties’ intentions. Others view the Charter as special or even unique, a “sacred text” akin to a constitution that must be interpreted more liberally in light of the prescribed purposes and principles of the UN system and the changing priorities of the world community. During the ﬁrst two decades of the Cold War the Soviet Union and its allies, with minority disadvantage, had reason to distrust the machinations of the numerically stronger bloc led by the United States. Frequently issues of interpretation of the Charter were argued out in ostensibly legal terms, but in cadences that could scarcely conceal the political and ideological values at stake. Throughout the 1960’s and 1970’s the Soviet bloc countries in particular insisted that the “primary responsibility” of the Security Council for the maintenance of international peace and security, granted in Article 24 (1), should be read to mean “exclusive authority”. Reference was made to the original intention at Dumbarton Oaks to keep control in the hands of the victors of the Second World War, and to the absence of any clear mandate in the Charter for the General Assembly to share in this responsibility (Vavilov and others, 1974). In the Security Council the communist countries could shelter behind the much-used Soviet veto, whereas in the General Assembly the United States and its alliance had the support of an assured majority, through the 1960’s and early 1970’s, that could and did impose its will in numerous situations. The non-communist, capitalist states espoused the position that when the veto paralyzed the Council and prevented action, it fell to the General Assembly, out of necessity, to ﬁll the void by exercising its secondary or “residual” responsibility in the maintenance of peace. Light was made of the textual evidence that Chapter IV seemed to emphasize the non-binding, recommendatory nature of the Assembly’s authority. Various ancillary legal arguments were advanced that keyed on the interpretation of such words as “action”, “measures”, and “armed attack”. By the early 1970’s, however, the arithmetic of UN geopolitics had changed to the disadvantage of the United States. Most votes in the General Assembly were dictated by a new and large majority of developing nations, the increasingly understated Group

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of 77. The crucial gulf was now between North and South, rather than West and East. As a result, the United States abandoned its policy in favor of an Assembly role in intervention, and moved toward rapprochement with the Soviet Union. Although signiﬁcant US-Soviet rifts remained, the Soviet Union softened its strict contructionist interpretation of the Charter, acknowledging that UN “peacekeeping” could only be executed outside the original scheme envisaged in the Charter (Cassese, 1978). The concession that both governments felt obliged to make to the “third world” majority was that in peace maintenance, as well as other contexts, it was necessary to delegate responsibility to the oﬃce of the Secretary-General (Gordenker, 1967). To capture the signiﬁcance of the Secretary-General in UN intervention practices, we have to look backwards. During the inter-war period, it had been generally accepted within the diplomatic community that the Security-General of the League of Nations should not allow himself to become politically controversial. Sir Eric Drummond, the ﬁrst Secretary-General of the League, held that position from 1919 to 1933. He was appointed by the Paris Peace Conference, on the proposal by President Woodrow Wilson, after 19 years of service in the British Foreign oﬃce. The ﬁrst idea was to have a “Chancellor” at the head of the new organization, an eminent politician with impeccable internationalist credentials and a powerful presence. Wilson himself was considered, and other statesmen of distinction such as General Smuts of South Africa, Tomas Masaryk of Czechoslavakia, Eleftherios Venizelos of Greece, and Robert Cecil of Great Britain. All declined, sensing that their destiny lay elsewhere. Then it was decided to de-politicize and relegate the oﬃce to that of a non-political administrator “patterned along the lines of a senior government civil servant”: a secretarygeneral. Drummond held this position for 14 years, longer than any of his successors at the League or the United Nations. During these seminal years he laid the foundations for a professional style that reﬂected his own training, experience, values and personality. Born into the Scottish gentry and educated at Eton, Drummond possessed the gift of social conﬁdence. His immersion in the pre-1914 European tradition of secret diplomacy – so despised by Woodrow Wilson – won him the conﬁdence of the European power-holders, who knew the value of total discretion. Yet, despite the appearance of anonymity, Drummond had in fact mastered the British art of discreet, behind-thescenes, manipulation immortalized by Sir Humphrey in the more appealing world of ﬁction. Like it or not, Drummond was drawn into “a political vortex where the choices he made furthered the political drives and desires of one state over another. Though he might perhaps rationalize his actions and moves on constitutional or administrative grounds, he was nevertheless involved in what were essentially political acts” (Barros, 1979). Drummond’s French successor at the League, Joseph Avenol, served from 1933 to 1940. He had been Drummond’s deputy and it was assumed that France had the right of refusal. But Drummond, acutely mindful of the malign inﬂuence of great-power politics on the League, had recommended that the next Secretary-General should be a national of one of the smaller states, and certainly not Avenol! Despite serious reservations shared by many of his closest associates, Avenol was elected.

International Law in Action

The second Secretary-General came from an ultra-conservative, ultra-religious family in the department of Deux-Sevres. He was suspected of harboring monarchist sympathies and aristocratic prejudices. He was, too obviously, an Anglophile, and, just as seriously, seemed only a half-hearted proponent of the League of Nations. Avenol’s own biographer, James Barros (1969), found him to be “the wrong man in the wrong place at the wrong time”. He left the impression of “passive acceptance of a headlong rush toward the abyss”. He thought little of the League’s liberal ideology, and of democracy and public opinion. A public statement in defense of the war-prevention-and-management principles of the League would have seemed inappropriate, if the notion had ever been put forward to him. Only too appropriately, Avenol symbolized a dying institution. Great-power politics continued to plague the ﬁrst Secretary-General of the United Nations: the Norwegian politician Trygve Lie (1946-1952). The Soviet bloc was particularly critical of Lie’s political bias during the turbulent years of the Korean War. The next in line for “the most impossible job on this earth” was not to be spared these same agonies, but the talented Swedish diplomat, Dag Hammarskjold, was to have quite a diﬀerent impact on world events (Urquhart, 1972). Although trained, like Dummond and Avenol, in his country’s civil service, Hammarskjold had tasted the pleasures of intellectual rebellion in his youth. His interests ranged far beyond law, languages, and economics – the staples of a student preparing for a government career – to literature, religion, philosophy, and psychology. He enjoyed the thrust of wit and the spark of new ideas, combining “a strong democratic sense and socialistic ideological convictions with an aristocratic way of thought” (Henderson, 1969). He was the man in the middle, seeking “not victory but peace”. As a darkly Nordic poet and probable mystic, who had come through his own internal struggles, he invested in the post a spiritual conviction that it had never possessed before. Another key ﬁgure in the early history of the United Nations was the Canadian Lester Pearson (1897-1972). An aﬀable and popular ﬁgure in both political and diplomatic communities – a rare accomplishment – Pearson, along with Hammarskjold, was to play a central part in the rehabilitation of the UN system for maintenance of international peace and security. Pearson, a parson’s son, was a young history instructor at the University of Toronto when he was invited in 1927 to become a founding member of Canada’s Department of External Aﬀairs. His personal on-the-job training in diplomacy coincided with the invention of Canadian foreign policy, ﬁnally unfettered by neo-colonial bondage. Even as a young oﬃcial, he was never far removed from the level of decision. His Oxford ties with prominent Canadians did him no harm (English, 1988). No one was surprised when Pearson’s personal ﬂair and chunky charm earned him the Liberal Party’s nomination in 1958, victory in the ensuing byelection, and the obvious post as Minister of External Aﬀairs. By the time of the Suez Crisis in 1956 Pearson had played the lead role in crafting Canada’s reputation as a nation committed to “multilateralism”. Since 1945 he had concentrated on building international institutions, especially NATO and the United Nations. As president of the UN General Assembly he had seen at close quarters the depletive eﬀects of the Cold War. Twice he had coveted the post of UN SecretaryGeneral, and twice it had eluded him, too obviously the product of the “North Atlan-

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tic triangle”. Yet none doubted his conviction as an internationalist or his shrewdness as a peacemaker. Moreover, he had generally supported the American view that the Europeans should “shake oﬀ the dust of their empires” (English, 1992). The history of UN peacekeeping has its origin in the need to ﬁnd a “softer” interventionist role for the international community in diﬃcult and dangerous situations. It had to be a non-enforcement role that did not depend upon political consensus within the Security Council, and a role that took the form of eﬀective action, not merely words of approval from the General Assembly. Above all, it had to be a role that could evolve across a wide spectrum of political circumstances. The initial context that presented itself for such an experiment was that of Egyptian nationalism. Not unlike Mohammed Mossadegh in Iran, Gamal Abdel Nasser (1918-1970) rose to power on a rising wave of nationalist resentment against the players of great-power politics in his own backyard: in Egypt’s case, the United Kingdom (once again) and this time France instead of Russia. In July 1956, frustrated by the failure of ﬁnancial negotiations for completion of the Aswan Dam, Nasser seized the French-based company that operated the Suez Canal, despite vigorous protests by the French and British governments. In protection of their “illegally” conﬁscated and strategically vital asset, the two Western powers sent in their armies. In October Israeli troops took advantage of the situation and crossed into the Sinai Peninsula, a part of Egyptian territory. In the Security Council, a Soviet-US resolution condemning these acts of aggression was vetoed by France and the United Kingdom. Using the “United for Peace” procedure – initially supported by both of these countries – the Security Council majority called for an emergency session of the General Assembly to deal with the matter. The Assembly’s recommendation, couched in language similar to the Council’s resolution, called on all non-Egyptian forces to withdraw from Egyptian territory. The British and French complied. From earlier days, Pearson had known and liked Mahmoud Fawzi, Egypt’s foreign minister. In July 1955, Fawzi visited Ottawa to mitigate Canadian fears of pan-Arab nationalism and concern over Nasser’s acceptance of Soviet and Czech arms. Later Pearson met Nasser in Cairo, and, despite Canada’s traditional support for Israel, they left a favorable impression on each other. In the 1930’s Pearson had played tennis and sipped Scotch with Anthony Eden, who would become Britain’s “golden boy” on the stage of world diplomacy. But in 1956 Pearson’s willingness to ﬁnd a conciliatory position during the Suez crisis infuriated Eden and many of his Foreign oﬃce colleagues. As Pearson wrote in his diary, Eden seemed to be “completely disintegrated – petulant, irrelevant, provocative at the same time as being weak. Poor England, we are in total disarray” (English, 1992). Pearson’s refusal to back up the British and French action in Egypt had deeply oﬀended Eden. However, by the time of the crucial debates in the UN Special Assembly in early November, Pearson was ﬁrm in his resolve to press his mediational proposal for the establishment of an international “peacekeeping” mission. The UN force would undertake a “police action” to separate the belligerents and prevent the resumption of hostilities between them, while a political settlement was being worked out. Pearson’s plan called, provocatively, for the peacekeepers to be placed under the control of the Secretary-General. Hammarskjold himself was skeptical and

International Law in Action

pessimistic, but Pearson remained ebullient. The tough US Secretary of State, John Foster Dulles, was extremely dubious, but ill in hospital awaiting a cancer diagnosis. President Eisenhower was three days away from re-election, and Soviet tanks were rolling toward Budapest. The Suez crisis had to be removed from the center stage of world politics. Pearson’s plan was seen in Washington to be the least harmful of the options. Since Nasser was willing to accept the UN force as a barrier against the Israelis, the Soviet Union, with other priorities, had no reason to blacken its reputation further with pointless obstruction. At 2:00 a.m. on Sunday morning, November 4th, 57 nations voted for the Canadian resolution, and none opposed it. Pearson’s “mediational” diplomacy was triumphant. Under a newly resilient Secretary-General, the war-prevention-and management regime had turned a sharp corner. In the following year Pearson was awarded the Nobel Peace Prize for his fathering of the United Nations Emergency Force (UNEF I). In 1958, he succeeded Louis St. Laurent as leader of Canada’s Liberal Party, and in 1963 became Prime Minister. UNEF I, child of the General Assembly, has been praised by many: not least by Hammarskjold as a “unique and pioneering peace eﬀort”, and even by the US House of Representatives as “a symbol of the world’s interest in avoiding further hostilities” (Zeidan, 1976). Yet controversies have erupted over many of the UN’s subsequent decisions to resort to peacekeeping initiatives, and questions of UN law have usually been at the center of debate. Normally neither the Council nor the Assembly has cited the provisions of the Charter presumed to serve as the legal basis of their interventionist resolutions. Apparently the General Assembly claims the right under Article 20 to recommend action on a peace maintenance matter, but it is left unclear whether this claim is restricted to the situation where the Council is blocked by a veto and the matter is removed from its agenda, or becomes operative even if it remains on the Council’s agenda. Some lawyers maintain that the Assembly’s powers of recommendation are unlimited by subject matter, and therefore that the Assembly at anytime, independently of the Council, can recommend that its members adopt even certain military measures for the maintenance of international peace and security. If so, it can be argued, the two political organs have overlapping competences in such a context, even if the Council is actually discharging its primary responsibility and seems prepared to adopt measures under Chapter VII. Since the ﬁrst peacekeeping initiative was taken by the Assembly, questions have been raised about the Council’s power to organize peacekeeping operations. Since they are not “enforcement actions”, they do not fall under Article 40, nor perhaps Article 41. Moreover, the structure and procedure of the Council seem incompatible with the day-to-day conduct of peacekeeping operations (Ciobanu, 1978). Due to the breakdown of the system originally envisaged under the Charter, it is diﬃcult to reconcile the remaining operative provisions of Chapter VII (Higgins, 1978). To create a complete and coherent rationale, one must look also to the evolution of internal “conventions” of UN practice, referable, as some wits have suggested, to Chapter 6 2! In this way, it can be reasoned that there are certain “principles” of peacekeeping emerging outside the Charter. For example, it might be said that intervention through a peacekeeping force requires the consent of all the parties concerned; that participation in such a force by UN members is voluntary; that peacekeeping opera-

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tions are to be exclusively under UN command; that the host state may impose certain conditions on the UN’s right of intervention; that the UN force must withdraw if requested to do so; and that the UN must remain neutral in domestic issues that arise in the host state (Goodrich, 1977). These and other principles have been tested in diﬀerent circumstances. For instance, when the Egyptian government demanded the withdrawal of UNEF I in 1967, U Thant, Hammarskjold’s paciﬁst Burmese successor, felt obliged to comply with what he perceived to be one of the emergent “rules of engagement”, even although UNEF’s presence as a cordon between Egypt and Israel might have seemed more important than ever. Moreover, the crisis in Congo (1960-64) proved that an intervention originally authorized by the General Assembly, and executed by the Secretary-General as a peacekeeping operation, could evolve into an enforcement action that required the direct involvement of the Security Council under Chapter VII of the Charter. By that time Hammarshkjold had developed the concept of “preventive diplomacy” in response to changing situations that could no longer be characterized simply by reference to any single category within or outside the Charter. “Peacekeeping” was about to evolve into the nobler but trickier goal of “peace-making”. Flexibility of response was becoming the ﬁrst requirement of the UN’s peace maintenance system. Of all the peacekeeping operations initiated up to the end of the 1980’s, the Congo intervention had the widest scope, being a response to both an international conﬂict, caused by the introduction of Belgian troops into Belgium’s former colony, and a domestic crisis akin to civil war. Premier Moise Tschombe, premier of the province of Katanga, had called in the Belgians in support of his secessionist cause. Congo’s Prime Minister Patrice Lumumba and President Kasavuba reacted by requesting the United Nations to provide military help against the Belgian aggression. Hammarskjold felt that a “threat to the peace” existed and brought it to the Council’s attention under Article 99. Under his own “executive powers”, he set up the Organisation des Nations Unies au Congo (ONUC) with the intention of integrating political, military and technical assistance, as the situation seemed to require. ONUC eventually grew into a force 20,000 strong, consisting mostly, but not entirely, of military and other personnel provided by African states. The domestic crisis became more complicated as Kasavubu and Lumumba became rivals in the struggle for power. In December 1960 the Security Council was deadlocked: the Soviet bloc supported the Marxist-leaning Lumumba, and the US bloc tended to favor Kasavubu. In trying to preserve balance between the blocs and to meet African demands, Hammarskjold was accused of bias from all sides, which were of course impossible to reconcile. Lumumba was murdered, in mysterious circumstances, in January 1961, and later that year Hammarskjold died in an aircraft accident that was never satisfactorily explained (Thorpe, 1969). In December 1962 Katanga was reunited with the Congo, and eventually, in June 1964, ONUC was disbanded (Abi-Saab, 1978). For better or worse, Katangan secession – ostensibly a “domestic” matter – had been thwarted by the international community, but the daily disasters and heartbreaks of life in Congo have not diminished. In consequence, the sanctity of the state has been assured, but not the welfare of the Congolese people.

International Law in Action

By the 1980’s it seemed to many that the United Nations had proved unable to cope with its responsibilities for war prevention and management under Chapter VII of the Charter, and that the UN’s peacekeeping record was mixed at best. Optimism was at a low ebb. Afghanistan (1973-1989). Certain regions and countries seem fated by geography to attract the unwanted attentions of the outside world. None more so than Central Asia, and in particular the “buﬀer state” of Afghanistan. These unhappy places have kept appearing in world history because of the notoriety of their invaders. Afghanistan, as part of ancient Bactria, was a famous victim of Alexander the Great (Holt, 1988). Two thousand years later, not much changed, Afghanistan was again the object of imperial encroachments as Catherine the Great sought to bring it within the Russian orbit. Throughout most of the 19th century, the rival ambitions of the British Empire in India endowed the Hindu Kush and the Khyber Pass with strategic status in the “Great Game” of geopolitics in the highlands of Central Asia (Meyer and Brysac, 1999). Since then, this poor, highly tribalized country – a “highway of conquest” – has continued to struggle for stability as a viable sovereign state, despite the modernist vision of the “iron emir”, Abdur Rahman, who ruled the country rather benevolently between 1880 and 1901 (Fletcher, 1965). Pessimism about the eﬀectiveness of the UN system of war-prevention-and-management was universal in the 1970’s and 1980’s. Paralysis in the Security Council seemed the inevitable result of US-Soviet imperialist rivalries in areas of strategic conﬂict such as Afghanistan, as it had been of American fears of communist expansionism in Southeast Asia in the 1960’s. The newest threat of intervention in Afghanistan came out of the bloodless coup of 1973, when King Mohammed Zahir Shah was overthrown by his brother-in-law, Sardar Mohammed Daoud. Sadly, this escape from autocracy did not give rise to a constitutional democracy. The years from 1973 to 1978 were a period of increasingly implacable hostility between republican and communist forces. By then the People’s Democratic Party of Afghanistan (PDPA) had become established with the ﬁnancial and political support of the Soviet government in Moscow, although the party was seriously split between its Khalq (Masses) and Parcham (Banner) factions. The Soviet Union had been the most generous donor of military aid to Afghanistan since the end of World War II, for the United States, as an ally of Pakistan, could not countenance Kabul’s advocacy of Pashtunistan, an independent or autonomous state for the Pashta-speaking nationals of Pakistan. The regime of President Daoud ended in violent eruption in the early morning hours of April 28th, 1978, when military units loyal to the PDPA and Nur Muhammed Taraki stormed the Presidential Palace in the heart of the capital. Daoud and most members of his family were killed in the ﬁghting, which had been triggered by his counter-leftist measures and his eﬀorts to establish a strong central government (Ghaus, 1988). The degree of Soviet involvement in the coup is uncertain (Bradsher, 1983). Daoud clearly resented Moscow’s inﬂuence in Kabul, and the Soviet government opposed his eﬀorts to cultivate relations with the conservative Arab states of the Persian Gulf, especially with the Shah of Iran.

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Under the premiership of Taraki, the new revolutionary government quickly became dependent on Soviet advisers, who were, however, unable to prevent the spread of civic chaos. The fanatical intensity of the PDPA programs produced widespread resistance, not only among Islamic conservatives but also among rival Marxists led by Haﬁzullah Amin of the Khalq faction of the PDPA. It was Amin’s men who rose up in September 1979 and assassinated Taraki. But Amin, who succeeded Taraki as premier, was, if anything, an even greater embarrassment to the Soviet government, and an even more ruthless oppressor of his political opponents. In December1989 the Soviet Union moved huge military forces across the border, killed Amin, and installed the Parcham faction under Babrak Karmal as the puppet government of Afghanistan. The Soviet invasion came as a surprise to the international community. Monks (1981) suggests the action can be explained by a combination of factors: traditional Russian concern to secure its boundaries, reinforced by the strategic goal of preserving Afghanistan as a protectorate at a time of encirclement by hostile NATO forces from Japan to Norway; the emergence in the Kremlin of a hard-line core of foreign policy advisers determined to re-assert their country’s superpower status; fear that the unpopular and erratic Amin would be overthrown and replaced by a conservative, Muslim, anti-Marxist regime; and Moscow’s Leninist ambition to expand Soviet inﬂuence in Central and South Asia (Hauner, 1989). Moreover, Afghanistan’s resource base and location made it an attractive ‘colony” for the United States (Dienes, 1989, Shroder, 1989). Whatever its motivation, the Soviet government had little reason, as a vetoequipped permanent member of the Security Council, to fear the weight of United Nations law and authority. The Council was paralyzed. The intervention was justiﬁed in Moscow on the ground that the “legal government” had requested Soviet military assistance against counter-revolutionaries and foreign agents sponsored by Pakistan, China and the United States. Legitimacy was said to be further evidenced by the military, economic and military security treaty with Afghanistan, signed by the Soviet Union in December 1978; and, of course, by Article 51 of the UN Charter, which recognizes the right of all states to individual and collective self-defense against external aggression. The UN General Assembly, by default of the Security Council, responded in the only way it could: by the passing of hortatory resolutions. The ﬁrst condemned the Soviet invasion by a vote of 104 to 18 (with 30 abstentions or absences), and called on all foreign troops to withdraw. Although this may have been the most serious diplomatic defeat for Soviet foreign policy since the UN condemnation of the Soviet invasion of Hungary in 1956, it carried little suasion in the Kremlin. The Russians remained in Afghanistan until February 1989. Over those nine years, the Red Army encountered unending, and increasingly lethal, resistance from Islamic and nationalist organizations (Kakar, 1995). Although essentially a loose “federation” of mutually antagonistic or distrustful ﬁefdoms and ethnic minorities, Afghanistan came close to forming a temporary, uneasy coalition of its normally warring, internal social forces. For a brief interlude, most Afghans could belong to a united front against a common enemy: a jihad (holy war) in defense

International Law in Action

of Islam against enemies of the faith, who had sustained an explicitly atheistic assault on the foundations of their culture (Rashid, 1987). During the Soviet occupation of Afghanistan numerous allegations of human rights abuses were brought to the attention of the United Nations and the world press. A Special Rapporteur to the UN Commission on Human Rights attempted to maintain a monitoring service, but accurate ﬁgures were diﬃcult to obtain. In the ﬁrst report in 1985, it was suggested that 500,000 Afghans, mostly civilians, had been killed by bombings and massacres alone since 1979. In the second report, it was estimated that 74 villages had been destroyed. As to depopulation, the UN High Commission for Refugees in 1986 counted 2.8 million Afghan refugees registered in Pakistan, and surmised that there were 400,000 more refugees unregistered. The third report of the Special Rapporteur foresaw a situation “approaching genocide” (Rubin, 1987). The case for humanitarian intervention in Afghanistan in the 1980’s was abundantly clear, but the United Nations could not oppose the will of a permanent member of the Security Council. United Nations law rested on political foundations. Toward Multi-purpose Intervention (1989-2001). The end of the Cold War in 1989 restored hope that major problems in international relations could be dealt with eﬀectively through the peaceful processes of international law and diplomacy. Legal development is not always a gradual process. Sometimes it spurts forward, unpredictably, in reaction to an “external” event. The peace-maintenance law of the United Nations owes its sudden resurgence in the 1990’s to two political phenomena: the rise to power of Mikhail Gorbachev in the Soviet Union and of Saddam Hussein in Iraq. Gorbachev’s ascendancy in the Soviet government system had set him on a course of radical policy shifts that were to mark him out as one of the most important world statesman of his era. Most obviously, he represented the new professional middle class of a country that could no longer tolerate the ineﬃciencies, dogmas and monstrosities of the apparatchiki. Stalinism was dead. Under Gorbachev, Russia had to shrink its empire, abandon its leadership of world communism, and re-build its role in the international community. Above all, the Russian government could no longer aﬀord its superpower status and the cost of daily confrontation with the United States. The game of veto-politics in the Security Council had lost most of its appeal. Through the years after the Second World War, Iraq had appeared to be a country with a promising future, blessed with a well-educated elite and the third largest oil deposits in the world – after Saudi Arabia and (under a broad deﬁnition of “deposits”) Canada. It seemed to have the pre-requisites of wealth and stability. But after the pro-Western royal clique was overthrown in a bloody military coup in July 1958, the new republican state failed to jell. Eventually the socialist Baath Party – inspired by anti-Western Arab nationalism on the Nasserite model – took control and imposed a rule of tyranny under the leadership of Saddam Hussein. Iraq’s invasion of Kuwait in August 1990 was undertaken ostensibly over a territorial issue. This is a type of legal dispute that international tribunals are usually able to sort out under highly developed principles of international law. Adjudication is available in such a situation to governments willing to live under the international rule of law. Chapter VI of the UN Charter addresses precisely this kind of concern. None of

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the permanent or non-permanent members of the Security Council had any reason to defend such a blatant example of unprovoked aggression against a smaller neighbor. With the end of the Cold War, the absence of Soviet or other veto sentiment in the Council produced a rare determination on the part of the P5 to take a ﬁrm lead. France, Britain, and the United States all had oil interests in the neighboring Gulf states, and Russia was deeply disturbed by the threat of Arab and Islamic uprisings along its southern perimeter. China had no reason to stir the pot. As a consequence, the Council’s response was the most forceful in the history of collective security diplomacy, designed not only to end the aggression but also to curb Iraq’s capacity for threatening the peace of the world’s most unstable region. Yet although it was close to the paradigm envisaged in Chapter VII of the Charter, the Gulf War became a UN enforcement action, under Resolution 678 of November 29, 1990, only after the initial US decision to use force had already been taken. Arguably, the United Nations was left with no alternative but to rubber-stamp a unilateral, but surely legitimate, foreign policy decision of the United States, as in the case of the Korean War. The Gulf War has been described as “the last of the old wars”. The international community mobilized a huge land force and the vast logistical support required to sustain it. The war was “fought for a classic end, to reverse a straightforward case of territorial aggression against a member-state of the United Nations. Soldiers were committed in full expectation of casualties” (Ignatiev, 2000). The US intervention was also consistent with the 1980 Carter doctrine, which declared the Gulf to be a region of “vital interest” to the United States. Yet it seems that President George Bush was talked into a tough line against Saddam Hussein by Margaret Thatcher, the British Prime Minister, rather than by the Pentagon or the US oil industry (Risse-Kappen, 1995). In any event, it was the willfulness and massive deceit of the Iraqi regime that forced a succession of severe Council responses such as the “mother of all resolutions” (Resolution 687 of April 3, 1991). Even stronger was the legally binding decision of 6th August to begin a program of economic and ﬁnancial sanctions that would cut oﬀ Iraqi imports and exports of oil and other strategic materials. No previous action by the United Nations under Chapter VII of the Charter had gone so far to penetrate the legal defenses of a sovereign state. Signiﬁcantly – as future events would disclose – the conditions of the permanent cease-ﬁre imposed by the Security Council on April 3rd, 1991, demanded that Iraq dispose of its chemical and biological weapons and ballistic missiles with a range exceeding 150 kilometers. Teams of UN inspectors uncovered a capacity to produce such weapons on a scale that astonished them. They also discovered clear evidence of violations of legally binding, treaty-based regulations of the International Atomic Energy Agency (IAEA). Inexorably, the deﬁant Iraqi government was forced by the Security Council toward a full-compliance obligation that included the duty of reparation for the damage it had inﬂicted in Kuwait. The Saddam Hussein regime was also condemned by the Security Council for its atrocities against its own people, especially the Kurdish minority driven northward by a policy of persecution. Moreover, the Council conferred ex post facto legitimacy on the policy of “no-ﬂy” zones established by the United States and the United Kingdom, which had assumed the lead role in the Gulf War (Baehr

International Law in Action

and Gordenker, 1994). These increasingly stern measures seemed to reﬂect a common acquiescence in a US-led strategy of punishment for the worst of rogue regimes, providing a new and more drastic example of “multi-purpose intervention” that involved the stripping away of those sovereign entitlements that would have enabled the Iraq regime to continue its policy of deﬁance with total impunity. After the international community’s success in dealing with the Iraqi invasion of Kuwait in accordance with the UN Charter, hopes for a “new world order” rose to a dangerously high level of overexpectation. Ambitious aspirations returned to the UN arena, whose credibility had plunged after so many years of relative futility in the Security Council. In the United States especially, the General Assembly was seen to be increasingly captive to anti-Israeli and anti-American sentiment. An opportunity now seemed to present itself for decisive and enlightened leadership on behalf of the world community. But who would lead, and how would the leader be made accountable? Who would direct the “new interventionism”? In the fall of 1991, the new Secretary-General, Boutros Boutros-Ghali, was elected in a climate of optimism. After the Summit Meeting of the Security Council on 31st January, 1992, he published a blueprint for a more constructive era in UN intervention: Agenda for Peace: Preventive Diplomacy, Peace-making and Peace-Keeping. In this document, the new world order was depicted as an order based on the rule of law. The Charter, it implied, should serve as the legal foundation, indeed as the constitution, of international society. Emphasis was given also to the social and humanitarian purposes and principles of the United Nations, as reﬂected in Articles 1 and 2 of the Charter. UN intervention authority was envisaged more broadly as a mandate to engage in “peace-building”. This vision was not fully shared by the P5. The United States had been the originator of post-war multilateralism, but through the Reagan era of the 1980’s US foreign policy was becoming less participatory. Increasingly, global institutions and treaties were seen to be a dubious investment from a narrow US national interest perspective. Russia had become dependent on US goodwill and cooperation. Britain and France remained divided on many foreign policy issues of importance, especially on the propriety of support for US leadership. China was unready to lead. Moreover, demands on the UN peace-maintenance function were proving to be beyond the Organization’s capacity to respond. In the 30-year period between 1948 and 1978 only 13 peacekeeping operations had been established, but in the 5-year period between 1988 and 1992 no less than 14 new initiatives had been taken, involving 70,000 troops from 70 countries, more than 2,300 observers, and over 1,100 policy oﬃcers. The countries intended to beneﬁt from UN intervention included Somalia, Western Sahara, Angola, El Salvador, Cambodia, and the former Yugoslavia (RisseKappen, 1995). Increasingly UN initiatives under Chapter VII of the Charter were designed to serve civic and humanitarian as well as war-prevention-and-management purposes. International lawyers as well as diplomats were urged in particular to adjust to the new ethos of “humanitarian intervention” (Mayall, 1996; Mackay and Rohe, 2001; and Lewy, 1993). The evolution of humanitarian thought and benevolent state practices can be traced back to ancient times, as we shall see in Part Two, but “international

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humanitarian law” did not begin to take shape until the late 19th century (Schindler, 2003). Under the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, it was recognized for the ﬁrst time that doctors and nurses would be treated as non-combatants exempt from capture. The wounded on both sides would be entitled to the same humanitarian standards. This initiative was the work of a group of ﬁve Genevan citizens, including Henri Dunant, the founder of the International Committee of the Red Cross (ICRC). Since 1864 the ICRC has become the world community’s ﬁeld monitor and reporter on a long series of international, treaty-based protections aﬀorded to combatants and non-combatants in times of war (Willemin and Heacock, 1984). The Committee is the chief promoter of evolving principles of international humanitarian law, such as these: (i) military necessity and the maintenance of public order must always be compatible with respect for the human person; (ii) belligerents shall not inﬂict harm on their adversaries out of proportion with the object of warfare, which is to destroy or weaken the military strength of the enemy; (iii) persons placed hors de combat and those not directly participating in hostilities shall be respected, protected and treated humanely; and (iv) the rights of the parties to the conﬂict to choose methods or means of warfare is not unlimited (Pictet, 1975). It has not always been easy to live up to these ideals. Yet we should all acknowledge the success of diplomatic eﬀorts to develop international humanitarian law. The 1864 Geneva Convention has been expanded and revised several times: ﬁrst in 1906, then in 1929, more fundamentally in 1949, and most recently with additional Protocols in 1977. The entire corpus, known generally as the “Geneva Conventions”, embraces the wounded, sick and shipwrecked members of armed forces at sea as well as on land, the treatment of prisoners of war, and the protection of civilians in time of war (Pictet, 1985). Since the early years of the United Nations the ﬁeld of international humanitarian law has expanded further to include the activities of disaster relief organizations, including the Oﬃce of the UN High Commissioner for Refugees (UNHCR), the UN Disaster Relief Coordinator, the United Nations Children’s Fund (UNICEF), various other UN agencies with human welfare responsibilities such as the World Health Organization (WHO), and of course hundreds of non-state institutions providing relief in times of disaster (Macalister-Smith, 1985). In the context of Security Council diplomacy, international humanitarian law is a concept with a compassionate core but a still-uncertain penumbra. The core is hardened through a succession of global agreements designed to further eﬀorts to “humanize” warfare. Technically, these instruments are legally binding only on states that choose to become parties through signature and ratiﬁcation. For example, the 1977 Geneva Protocol on international armed conﬂict was accepted by 160 states, but not the United States. Other legally binding agreements have been added to the growing list of eﬀorts to ban or limit certain weapons such as mines, booby-traps, and laser guns. Also, resort has been made to several non-binding instruments that represent “authoritative expectations” of the standards to be met in combat situations. The Iraqi burning of Kuwait oil wells led to the 1994 ICRS/UN Guidelines for Military Manuals and Instructions on the Protection of the Environment in Time of Armed Conﬂict. Meanwhile, the growing threat of terrorism has resulted in stronger

International Law in Action

global responses, such as the 1994 San Remo Manual on International Law Applicable to Armed Conﬂicts at Sea. Since the early 1990s UN operations in Bosnia and Herzegovina, Kosovo, Somalia, East Timor, Rwanda, Cambodia, and elsewhere have been motivated as much by the evidence of humanitarian disaster as by the need for peacekeeping (United Nations, 1996; Inbaraj, 1995; Adelman and Suhrke, 1999; Ignatiev, 2000; Mayall, 1996; and Peon, 2000). By the end of the 1990’s the scope of multi-purpose intervention had stretched further to include gross and systemic violations of human rights and extreme repression of democracy. By then the mandate of the Security Council had expanded far beyond the compass of Chapter VII of the Charter, reinforced by the UN’s basic responsibilities under Articles 1 and 2. But doubts remain about the “prescriptive status” of the new norms that seem to authorize UN interference in the domestic aﬀairs of states in apparent conﬂict with Article 2 (7). The emergence of humanitarian relief as the rationale for intervention by the international community has complicated the tasks confronting the UN Security Council. The UN Charter is a statist charter. At the time of its drafting, human suﬀering, however acute, was not seen to be a legal ground for forcible intervention, in absence of consent by the sovereign state. In the eye of traditional (pre-UN) international law, territorial integrity was conceived as a basic principle, as fundamental as the principle of state sovereignty, and this is reﬂected in the language of Article 2 A(7) of the Charter. As the ethic of international law has deepened since 1945, many international lawyers have taken the position that “humanitarian intervention” should now be considered a matter of legal obligation, rather than one of entitlement. In the spring of 1999 the Security Council was now faced with the dilemma whether to intervene in Kosovo to save its people from ethnic persecution under the repressive policies of President Milosevic and his regime in Serbia. As so often in the past, the Council was divided. Rather than press the issue to a vote, and thereby ensure the exercise of the Russian veto, the three NATO members of the Council – France, the United Kingdom and the United States – persuaded NATO to intervene “unilaterally”, by force, on behalf of the threatened Kosovans. Subsequently, a resolution condemning the NATO action was defeated in the Security Council. Then multilateral negotiations between NATO, Russia, and the Serbian authorities resulted in the de facto occupation of Kosovo by Russia and the NATO Three. In the end, this arrangement was approved by the Council, so as to give the appearance of legitimacy under Chapter VII of the Charter. Given the outcome, did it matter that a kind of “external unilateralism” had been necessary to bring in the mechanism intended by the drafters of the Charter half a century earlier? Is ex post facto UN authorization better than no authorization at all? Should we conclude that the belated UN authorization of the Kosovo occupation means that there is now a “third exception” to the non-interference norm in Article 2(4) of the Charter: namely, humanitarian intervention as well as self-defense and the exercise of the Council interventionist jurisdiction under Chapter VII (Copithorne, 2003)?

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The “progressivist” argument is that the pattern of “leader” state practice is changing in favor of unconsented humanitarian intervention, even although this involves a violation of the principle of territorial integrity. For example, in the early 1990s the United States, the United Kingdom and France created a “no-ﬂy” zone to protect persecuted Iraqi Kurds in the northern part of Iraq. As noted by Copithorne (2003), the Defense Secretary of the UK government argued in 1999 that “the use of force Y can be justiﬁed as an exceptional measure in support of purposes laid down by the UN Security Council but without the Council’s express authorization, when that is the only means to avert an immediate and overwhelming humanitarian catastrophe”. The obvious objections to such a trend are: that any kind of “external unilateralism” is dangerously open to abuse (Falk, 2003); that in the case of Kosovo the impasse in the Security Council could have been resolved through resort to the “Uniting for Peace” procedure in the General Assembly (Asada, 2003); that the legal basis for the NATO action is questionable (Currie, 1998); and that in any event the doctrine of humanitarian intervention is not yet suﬃciently established to constitute a “third exception” to the fundamental jus cogens norm prohibiting the use of force in Article 2 (4). Countering these “constitutional” arguments is the emergence of ethical considerations that must be weighed in the scales. Both in the ﬁelds of human rights and international environmental law, states are now held increasingly accountable to the international community for the treatment of their own nationals and for the exercise of their stewardship responsibilities. Older concepts of state sovereignty, veering toward the absolute, are no longer acceptable. If it proves impossible to overcome political resistance to UN Charter revision along these lines, then it falls upon the international law community to assist the process of reinterpretation. Afghanistan and Iraq (2001-2005). How close has the world community come to a new world order that places conditions on the traditional concept of state sovereignty? Are there international crimes so serious as to justify the “take-over” by force of a dangerous “rogue regime”. Does the world’s only superpower have a special responsibility for peace maintenance outside the great-power arrangement of the Security Council, and therefore outside the legal framework of the UN Charter? Is intervention appropriate to “promote” democracy, or only to “restore” it, as in the case of Haiti? Is international law totally dependent on multilateral arrangements, or is there a principled case for “enlightened unilateralism”? Can a coalition of states outside the United Nations, and also outside regional alliances, intervene in extreme situations without being charged with “aggression”? Fundamental questions such as these have acquired an extreme political as well as legal and ethical signiﬁcance since the terrorist attacks on New York and Washington on September 11th, 2001. These assaults led almost immediately to unprecedented security measures that reﬂected a war-like state of mind on the part of the US government and the American people in the bitter autumn of 2001. Three days after the attacks both houses of Congress approved by unanimous votes a 40 billion emergency anti-terrorism bill that made provision for increased military expenditure and for 20 billion for reconstruction in New York City. On the same day, the US Senate

International Law in Action

unanimously authorized the President to “use all necessary and appropriate force” against those responsible for the attacks” and also those who “harbored such organizations and persons”. The Senate resolution was approved hours later by the House of Representatives, subject to only one dissenting vote by a paciﬁst representative from California. The 9/11 attacks on the American homeland were attributed – correctly, as later admitted – to al-Qaida, an international terrorist organization of Islamic extremists led by Osama Bin Laden, a wealthy Saudi Arabian dissident who had set up terrorist training camps in several countries. The main base for al-Qaida operations was Afghanistan. Outside the Islamic world, most governments agreed on the need for unusually strong action against that organization, which was accepted as the principal source of international terrorism. It was also widely accepted that the al-Qaida terrorists in Afghanistan were carrying out their training and planning activities with the knowledge and approval of the Taliban government of Afghanistan. After the withdrawal of Soviet forces in 1989, Afghanistan had fallen into a state of virtual anarchy. The Khalq and Parcham communist parties were irreconcilably divided. The nationalists, who might have opted for an experiment in nation building along democratic or constitutionalist lines, were in disarray, many of them driven into exile. In these turbulent circumstances, the most potent political force in the country was the Taliban, a fundamentalist Islamic organization, whose (mostly semiilliterate) members were zealously committed to a medieval-style code of traditionalist ethics that insisted on the subordination of women and exhibited total contempt for all inﬁdels (Marsden, 2002). In the years between 1994 and 1997, within a governmental vacuum, the Taliban’s militia gradually assumed military control over a large part of Afghanistan, though many areas remained, as always, under the rule of the local warlord (Matinuddin, 1999). With the collusion between al-Qaida and the Taliban clearly displayed, the US government swiftly initiated a program of direct military assistance to their principal opponents, chieﬂy the United Islamic Front for the Salvation of Afghanistan (UIFSA) – the “Northern Alliance”. This grouping of warlord-led militias began to make substantial territorial gains at the expense of the Taliban, beneﬁting from the ﬂow of arms and supplies from the West and the coordinating services of US and UK special forces on the ground inside Afghanistan. Through November the UIFSA-led Afghan opposition to the Taliban became increasingly diﬃcult to resist. Meanwhile, diplomatic eﬀorts inside and outside the country intensiﬁed in support of a plan for a stable transitional regime that would have wide acceptance among most Afghans. The United Nations supplied a special envoy as representative of the world community and pledged to play an important role in support of the new government. In December the leaders of the principal anti-Taliban factions signed the Bonn accords, which created a 29-member interim government led by Hamid Karzai. In June 2002 the Loya Jirga, a council of tribal elders, was convened to decide on the form of the interim administration to be established in Kabul in accordance with the Bonn accords. By a huge majority of votes, Karzai was elected to serve as president of the new interim government. In September 2004 Karzai received popular endorsement as government leader through a surprisingly peaceful general election,

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the ﬁrst exercise in direct democracy in the history of Afghanistan. Whether this electoral success would be translated into an eﬀective, nation-wide system of government remained uncertain in the early months of 2005, but an important ﬁrst step had been taken in the risky eﬀort to promote democracy or “regime change” through a process of UN-approved intervention. Even riskier, and much more controversial, was the US-led intervention in Iraq in the spring of 2003. On March 20th (GMT) President Bush ordered an air attack on a house believed to be occupied by President Saddam and on other targets in and around Baghdad, with the stated purpose of undermining the autocratic ruler’s ability to wage war. Over 30 allies of the United States agreed to provide support in one fashion or another, but much clearer was the world wide scale of condemnation and protest. Some of the strongest opposition to the US-led intervention came from France, Germany and Russia, whose leaders deplored this action as contrary to the principles of international law and in deﬁance of the procedures for the collective use of force prescribed in the UN Charter. Despite its general unpopularity, the US military campaign went well initially. Contrary to most predictions, it succeeded quickly in driving out the Saddam regime without overwhelming civilian or military casualties. Prior to hostilities, strenuous eﬀorts had been made to ﬁnd a consensus among the P5 and between the permanent and non-permanent members of the Council. Faced with a failure of compromise diplomacy, and the prospect of veto by France and possibly Russia, the United States undertook to remove the Baghdad regime. It was not quite “unilateralism”, but it was further removed from the kind of multilateralism envisaged under the Charter. Almost all modern wars are controversial, but the waging of war against Iraq drew censure from many quarters, including the mainstream of the international law community, especially in Europe. Most could agree, at least, that Saddam Hussein and his clique deserved no sympathy. His oppressive regime had no redeeming feature. In its viciousness it oﬀered comparison with that of Adolf Hitler. The United Nations was designed, in part, to prevent the rise of such evils. Arguably, the record of the government in Baghdad was so bad that it needed no further blackening to justify the strongest sanctions of the international community. In the eleven years of Security Council debates on Iraq after the 1991 invasion of Kuwait, reference was made to numerous oﬀences: Iraq’s earlier aggressive war against Iran; use of gas in those hostilities; the manufacturing and stockpiling of nuclear weapons and materials; the invasion of Kuwait in 1991; the non-return of Kuwaiti prisoners of war; the refusal to pay reparations to Kuwait; the gassing of dissident Iraqi Kurds and their expulsion to the north; the imprisonment, torture and murder of innumerable Shi-ite and other oppositionists; support for terrorist organizations throughout the Middle East; the manufacture and stockpiling of biological and chemical weapons; the obstruction, intimidation and eventual expulsion of International Atomic Energy Agency (IAEA) and other UN inspectors; and innumerable lies and deceptions designed to frustrate the will of the Security Council. Humanitarian concern for the welfare of many Iraqis – victims both of the oppressive

International Law in Action

regime and of UN sanctions – mingled with rising anger over the regime’s survival despite Council actions to rein it in. During the eleven years of UN sanctions against Iraq, most of the emphasis in the UN debates had been placed on Saddam Hussein’s deﬁance of Security Council resolutions (Wellens, 2001). At the center of these concerns was the fear that the elaborate arms control and disarmament regime of the world community was unraveling. At the end of the Cold War it was possible to look back with satisfaction at the eﬀectiveness of the system of treaty restraints and regulatory controls that had succeeded in checking the arsenals possessed by the rival superpowers. Since then these banks of deadly armaments have been greatly reduced. The world should have become safer, but, in the post-Soviet period, the threat from weapons of mass destruction has come increasingly from non-democratic governments of lesser powers, such as the government of Iraq, unrestrained by instruments such as the 1968 Treaty on the Non-Proliferation of Nuclear Weapons. At the center of the global arms control regime, the Vienna-based IAEA is mandated to administer a system of controls and standards applicable to the use of nuclear materials, whether for the manufacture of weapons or the production of energy. Iraq was only one of a dozen or more “suspect” regimes. In the nature of things, it is not easy to evaluate the eﬀectiveness of an international inspection system such as that of IAEA. Excessive intrusiveness on the part of an inspectorate may be counter-productive in a context where legitimate national security fears may coexist with sinister designs on the part of other states. At least it appears that the latest detection technology in airspace and outer space enhances the capacity of the IAEA’s experienced inspectors. Facilities for the making of biological and chemical weapons, on the other hand, are more mobile, and both the materials and their highly dangerous products are much easier to hide than their nuclear counterparts. In the absence of an organization like IAEA, surveillance of such activities depends on less well endowed ad hoc arrangements. Maintenance of controls over chemical and biological weapons of mass destruction became part of the Security Council’s mandate in the 1980’s. When suspicion fell on Iraq, the Council sent in inspectors not only from the IAEA but also from an UN ad hoc unit responsible for the surveillance of biological and chemical weapons. When the host government is mendacious and uncooperative, its degree of non-compliance can be diﬃcult to establish. “Reasonable” or “substantial” compliance are subjectively determined. But in the case of Iraq, the web of deceit was so tightly woven that most members of the Security Council had become wholly distrustful of Saddam Hussein, his associates, and his compromised oﬃcials. Iraq compliance had to be “total”. To the fear of rogue governments was added alarm that such weapons might fall into the hands of terrorist organizations outside the ambit of inter-state security controls. The terrorist strikes on New York and Washington on 11th September, 2001, transformed the politics of the Security Council. The homelands of the United States had been struck by what appeared to be the most dangerous terrorist network in the world. Overnight the enemy was everywhere. It became imperative, in the national

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interest, to strike back at obvious and serious sources of threat to the security of the most dominant power since the Roman Empire. Even in the absence of evidence of any direct link between the Baghdad regime and the fanatical attacks of 9/11, the Administration of President George W. Bush sensed the arrival of a turning point in history. To most of his closest associates and advisers, a strategic decision had to be taken to secure America’s place in the world, at home and overseas, whatever the risks might be. International law and diplomacy were presumably seen as the framework for discussion, if persuasion could serve the new purpose. But it must have been argued by some in the White House that neither the norms of the UN Charter nor the conventions or procedures of the Security Council could be allowed to determine the outcome, if it fell short of an acceptable American solution. In protest, most members of the Security Council – and no doubt most international lawyers – pointed to the reasonable, if limited, successes of the Council’s coercive diplomacy since the end of the Gulf War. Prohibited weapons in Iraq had been found and destroyed, and, despite the deviancy of the government in Baghdad, UN inspectors were back on the job. Legal principle prescribed that the use of force against Iraq must be authorized and executed under Chapter VII of the Charter. Diplomatic judgment suggested that more convincing evidence of continuing Iraqi noncompliance with the crucial Council resolutions was required before the use of force could be sanctioned. The “new world order” called for principled and judicious action by the United Nations in the multilateral manner that the Charter envisaged, in a new “tradition” that could now be developed in the absence of Cold War animosities. Within the reinvigorated UN system, patient but determined diplomacy could see the matter through without resort to war. Some of President Bush’s more moderate advisers were inclined to follow the course advanced by the international majority. But the American people were deeply divided, partly along party lines, stiﬀening the White House resolve for a bold strike against America’s enemies. It would be an opportunity also to discover America’s true friends. The president may also have been swayed by the eloquence of Prime Minister Tony Blair, as his father had been by the power of Prime Minister Thatcher’s will only twelve years earlier. The negotiations in the Security Council were rancorous, and on public display. Yet the full range of legal arguments and counter-arguments can only be guessed at. Presumably the international lawyers of the US government, like their UK counterparts, concentrated on the language of the key resolutions of the Security Council, maintaining that authority to intervene with armed force was already implicit. They may also have argued that, in an age of greatly heightened concern over security issues and the global patterning of violence, the traditional right of self-defense must be seen to be expandable despite the well-intentioned UN apparatus for collective security. Unilateralism, they may have added, is sometimes forced upon a state when its “vital interests” are directly aﬀected by external forces operating outside the framework of international law, such as the Iraqi regime. Members of the UN sharing the American sense of peril were, of course, invited to join an international coalition, as they had done in Korea and during the Iraqi assault on Kuwait.

International Law in Action

Reference might also have been made to the emergence of a much more complicated form of interventionism, designed to serve various, even unrelated if not incompatible, purposes: the destruction of weapons of mass destruction and of Iraq’s aggressive war-making capacity; the elimination of an evil and oppressive regime and the consequent liberation of the Iraqi people; the trial of those responsible for genocide and other war crimes before an international tribunal; the elimination of a government centrally involved in the promotion and support of terrorism; the provision of humanitarian relief for the victims of oppression and of the UN sanctions brought down upon the Iraqi people by it own deﬁant rulers; the introduction of a democratic system of government and the establishment of a stable and prosperous economy based on the country’s rich resources; and, perhaps, a decisive contribution to the desperately elusive goal of peaceful coexistence in the world’s most troubled region. The decision by the Bush Administration to invade Iraq – in cooperation with the United Kingdom and with Australian and other contributions – has renewed questions about the eﬃcacy of the UN system. The attack was seen by the attackers as necessary in an age imperiled by the proliferation of truly dangerous weapons and by the ruthlessness of international terrorist organizations capable of mounting deadly assaults beyond the control of the inter-state system. Defenders of the decision to invade point to the inadequacy not only of the traditional doctrine of “reactive self-defense” but also of the newer right of “anticipatory self-defense”. Acceptance of the latter requires the substitution of the objectively veriﬁable pre-requisite of an “armed attack” with the subjective perception of a “threat” of such an attack, which, “in the sole judgment of the state believing itself about to become a target, was so palpable, imminent, and prospectively destructive that the only defense was its destruction” (Reisman, 2003). Most international lawyers have expressed concern over this trend toward a subjective test of lawfulness. Yet the concept of a new order of international security has been invoked to justify an even more radical claim to the right of “preemptive self-defense”, or to the legitimacy of “preventive war”. As deﬁned by Reisman, the right of pre-emptive self-defense represents “a claim to use unilaterally, and without prior international authorization, high levels of violence to arrest an incipient development that is not yet operational, hence not yet directly threatening, but that, if permitted to mature, could be neutralized only at a higher and possibly unacceptable cost”. A claim for preemptive self-defense need point only to a possible threat. “As one moves from an actual armed attack as the requisite threshold of reactive self-defense, to the palpable and imminent threat of attack, which is the threshold of anticipatory self defense, and from there to the conjectural and contingent threat of possible attack, which is the threshold of preemptive selfdefense”, it might seem that law loses most of its power to deter resort to force. “In an international system marked by radically diﬀerent values and factual perceptions, an act of preemptive self-defense will often look like a serious or hysterical misjudgment to some actors and like naked aggression to others” (Reisman, 2003). For those prepared to give primacy to the criterion of eﬀectiveness, much depends on one’s perception of the capacity of the UN system to deal with current threats to international peace and security, and with their causes. It should be noted that after

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the 9/11 terrorist attacks on the cities of New York and Washington, DC, in 2001, the UN Security Council became the forum for the discussion and adoption of international measures against terrorism. Part of the UN’s response has been to organize the identiﬁcation of the ﬁnancing of terrorism, but much remains to be done before the suppression of that practice can become uniformly eﬀective (Bantekas, 2003). Similarly, initiatives have been taken by the Security Council to mobilize the world community in a united strategy against terrorism, chieﬂy through Resolution 1373, which established the Counter-Terrorism Committee (CTC). Technically, the call on all nations to cooperate creates a binding legal duty, because of the nature of the Council’s legal authority. But the weakness of the process under Chapter VII of the Charter is the failure to deﬁne terrorism. Political consensus on such a deﬁnition is virtually unattainable. The call on all nations to combat terrorism, whether or not parties to the various counter-terrorism treaties and protocols, will continue to sound hollow until there is agreement on how to identify the enemy. Yet it should be conceded that a serious eﬀort to deal with the problem has begun (Rosand, 2003). Many international lawyers, particularly in Europe, have responded angrily to the unauthorized intervention in Iraq, despite a general lack of sympathy for the ousted regime. To those who see the UN system as the emergent constitutional apparatus for the organized world community, the action of the United States and its allies is seen as subversive of the basic “constitutional” norms of international law (Macdonald and Johnston, 2005). The use of armed force against Iraq has been widely regarded as the ﬁrst application of the US government’s doctrine of preemption. But the international law community is divided on whether the question of lawfulness should rest on subjective interpretations of the key Security Council resolutions applicable to Iraq – the “script” – or should be part of a broader, and even more fundamental, inquiry into the adequacy of the entire system of legal constraints on the use of force in a dangerous and rapidly changing arena of conﬂict – the “context”. What are the future implications of the Iraq conﬂict? Are some intervention issues now so explosively political as to mark out this area of decision-making as beyond the province of law? In the new age of US hegemony, is it acceptable on principle that the United States and its allies – a coalition of like-minded democratic states – should assume an interventionist role when the UN Security Council fails to exercise its primary responsibility under Chapter VII? Does the world community need a change of rules? In the ensuing controversy in the United States, the US State Department has argued that renewed military action by coalition forces was justiﬁed by the oﬃcial “script”: by compulsory decisions based on a series of Security Council resolutions adopted between 1990 and 2003. In short, the preemptive attack on Iraq, consistent with the National Security Strategy of the United States, was lawful within the context of the aggressive conﬂict initiated by Iraq in 1990 and its continuing deﬁance of the legally binding resolutions of the Security Council (Taft and Buchwold, 2003). It has also been argued that the action can be justiﬁed as an exercise of anticipatory self-defense, but that this doctrine needs to be modernized in light of the new threats created by weapons of mass destruction, rogue nations, and terrorism (Yoo, 2003). Such a reform, it has been suggested, should allow states to supply the enforcement

International Law in Action

capability that the Council itself lacks, and to take action without UN authorization, if it is necessary to curb the seriously threatened use of prohibited weapons (such as poison gas) against civilian targets, as in the Iraqi case (Wedgwood, 2003). Some moderates would wish at least for a reinterpretation of the law designed to regulate the use of force, short of a radical formulation permitting preemptive wars. One writer, a proponent neither of strict legalism nor of preemption policy, has offered a modest reinterpretation of the UN Charter that could be espoused without the pain and futility of another mission to reform the sacred text (Gardner, 2003). The weakness of current self-defense doctrine is seen to be the source of the difﬁculty. In identifying with an earlier scholar, he questions whether the UN can be eﬀective in today’s dangerous world “if it insists that so impractical a doctrine is an essential part of its existence”. Falk (2003) has contrasted the 2003 Iraq war with the 1999 NATO intervention in Kosovo, which was characterized as “illegal but legitimate”. Although that initiative was taken without the formal approval of the Security Council, legitimacy could be found in the context of the decision, in factors such as “the imminence of grave harm and the lack of nonforcible means to protect against such harm”. Other American critics of the Bush Administration’s action share Falk’s view that preventive war is not acceptable and that the United States should return to the Charter system. Franck (2003), Farer (2003), Sapiro (2003), and Stromseth (2003) diﬀer on how much damage has been done to the letter and spirit of the Charter and to the Organization itself. Reﬂections. Nowhere is the mingling of international law and politics more evident than in this diﬃcult context. This vignette falls short of an adequate description of the nuances and complexities of Charter interpretation and United Nations diplomacy that have been applied to intervention issues over more than half a century. As a matter of international politics, intervention actions and omissions are bound to be highly controversial. Perhaps more than ever before, a large segment of the general public seems to be paciﬁst in orientation, perhaps because the images of war are now so easily conveyed to every household. Also, the sight of great-power politics in action may be unappealing to most around the world. On the other hand it is easy to be cynical about the motivations of the P5, especially those of its most dominant member, which has the strength and will to lay down and enforce the new “rules” of world order. The history of the Council has always been closely linked with that of US foreign policy. Since the end of the Cold War, American “world strategy” has been open to reconﬁguration. The geopolitical conditions under which the Charter was written no longer exist. Almost all UN members recognize the occasional necessity of approaching certain problems outside the framework of the Charter, but most believe it is important, most of the time, to work together within the UN system. Numerous proposals have been brought forward for reform of the system and of its constitutional text, but nothing changes. Progress is blocked by the numbing sameness of things. It has been argued by Brune (1999) that, in this age of multi-purpose intervention, US government decisions on whether and how to intervene should be taken

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in light of four principal considerations: (i) whether there is a moral imperative to take action; (ii) whether there is a national interest involved; (iii) whether there is a reasonable chance of success; and (iv) whether the intervening state has full domestic support. Since the United States covers one-third of the cost of UN peacekeeping, the question of cost-eﬀectiveness might also be considered a factor in the making of US foreign policy. For many observers, the issue boils down to “moral imperative”. The examples of US occupation in Germany and Japan after the Second World War show that forcible intervention can be successful in the promotion of democracy (Smith, 1994). Unfortunately, neither US nor UN intervention elsewhere since then has worked so well, even “at the point of bayonets” (Peceny, 1999). Almost no one is prepared to be optimistic that intervention will produce democracy quickly in cultures where the soil is shallow. Humanitarian relief becomes, increasingly, the work of “civil society” institutions, although there are still central roles to be played by UN and other inter-state agencies. “Peacekeeping” is focused chieﬂy on the restoration of peace and public order after hostilities or domestic conﬂict. But lines are not so easily drawn between humanitarian relief, the promotion of democracy and the role of law, and the re-establishment of public security. The more ambitious and diverse the principled reasons for intervention, the more unlikely that such actions will be fully successful. It remains uncertain whether UN intervention is more likely to contribute to human welfare than intervention by benevolent coalitions of like-minded states. Many thoughtful Americans are disturbed by post-Cold War trends in US foreign policy, especially by US government responses to the tragic events of September 11, 2001. Much of this domestic criticism focuses on the “Bush Doctrine”, ﬁrst enunciated by President George W. Bush at West Point in June 2002. The doctrine rests on two pillars: that the US will do everything in its power to retain its military supremacy, and that it will exercise its asserted right to preemptive action. Many may agree with George Soros (2004), that this policy “supports two classes of sovereignty of the United States, which takes precedence over international treaties and obligations, and the sovereignty of all other states, which is subject to the Bush doctrine. This is reminiscent of George Orwell’s Animal Farm: All animals are equal, but some animals are more equal than others”. The 2003 invasion of Iraq was, in eﬀect, the ﬁrst deployment of the Bush Doctrine. Within the United Nations community, ideas for a more eﬀective system of intervention have included the articulation of principles that might be characterized as “basic”. In the months before the strikes of 9/11, a UN commission submitted to the UN Secretary General Koﬁ Annan a report with suggested criteria to guide the UN Security Council in dealing with future intervention situations (UN International Commission on Intervention and State Sovereignty, 2001). Hopes that these ideas might be reviewed in a calm and rational spirit by the diplomatic community had diminished by the end of that troubled year. As to international law, the prospect for strict governance of interventionist decision-making by the UN Security Council seems to be dimming. There appears to be a stronger case for UN reform than ever (Muller, 1992). The reaction of the international law community over the Iraq war is divided. As we shall see in the following

International Law in Action

chapter, it is “rule-oriented” lawyers – that is, legal formalists – who are the most upset by political actions that circumvent existing legal procedures, especially those seen to be an important part of an evolving legal or constitutional structure for the world community. To those who may be characterized as “value-oriented”, US actions against Iraq between 1991 and 2003 are conceded to be ethically and politically controversial, but not necessarily dismissible as “illegitimate” (i.e. lacking in legal rationale), if greater weight is given to human values than to abstract legal principles. But for the struggle between these two philosophies in international law we must turn to a new chapter. Final Reflections This preliminary sweep over six areas of international law is intended merely to convey the range of norms, concepts, institutions and processes that contribute to its complexity and importance in the modern world. Contrary to the allegations of certain self-styled realists, international law is constantly in action. It is an ever-present guide in virtually every sector of international relations. It frames the daily interactions of national governments and intergovernmental organizations, and increasingly the actions of non-state institutions engaged in transboundary and other crossnational settings. Yet it is clear that international decisions, policies and choices are subject to a diversity of interests, values, and other inﬂuences. Considerations of international law must compete with numerous other kinds of “legitimacy”. Any progress toward the goal of universality or uniformity must be slow, since there are many reasons to promote the competitive goals of human, social and cultural diversity. Not the least of the fascination of international law lies in the mixture of ancient, old, modern, and entirely new. The system, as we now know it, reﬂects the wisdom – perhaps also the folly – of the ages. Norms as ancient as diplomatic privilege and as old as the freedom of the seas compete with norms as modern as common heritage and as contemporary as the principle of humanitarian intervention. Concepts as varied as permanent legation, codiﬁcation, regulatory regimes, law-making conferences, and civil society demand the attention of the international law community. International law is found at work in institutions as technical as the International Law Commission and the World Court and in processes as political as UNCLOS III and the interventionist debates of the UN Security Council. But within such a diﬃcult and professionally demanding “culture”, inﬂuenced by conﬂicting interests and values, international law exists as much in imagination as in reality. Before we turn to the long history of events, it seems important to review the ideas of international law. It may be there, in the imagery, that we ﬁnd our bearings.

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2 Images of International Law

In Chapter One the phenomenon of international law in the modern world was displayed in six very diﬀerent contexts. In each case it was seen, ﬁrst, to consist of norms: principles such as diplomatic immunity and pacta sunt servanda; jurisprudential regimes such as the territorial sea, territorial airspace, and international straits; doctrines such as the right of self-defense; and prohibitions such as the ban on wars of aggression. To become operational, as we have noted, the norms of international law have to be identiﬁed, applied, accepted, promoted, and developed through institutions: mostly by states and inter-state entities such as the International Court of Justice, ad hoc international tribunals, the International Law Commission, the UN Security Council, the UN Secretary-General and certain UN specialized agencies like IMO, ICAO and the United Nations Environment Programme (UNEP). As a bureaucracy, the international system is well served by a huge, and relatively, competent Administration, and by a professional Judiciary that still operates under more seer constraint than would be normal at the natural level. Its development depends on processes, including conference diplomacy, treaty-making, codiﬁcation, dispute settlement, and perhaps even diplomatic protest. Its formal sources are usually treaties (“conventional international law”), but often patterns of “state practice” that are suﬃciently uniform to be evidence of “customary international law”. Key individuals centrally involved in the processes of identiﬁcation, application, promotion and development may include judges on international tribunals, legal advisers to foreign ministries, prominent ambassadors, and even major scholars. Neither the existence nor the “relevance” of international law is in question. Yet it is evident that “the system” is institutionally incomplete. The analogy with a national legal system breaks down. The international community lacks a central focus of authority, especially in the Executive and Legislative branches of “world government”. In certain areas, international law is sophisticated and works well, its norms rarely challenged. In other contexts, the system is less than “systemic”. In most governments, legal opinion is usually taken prior to certain types of foreign policy decisions, but legal input is often obliged to yield to other kinds of advice. Moreover, some old norms of international law, dating back to the age of imperialism or earlier, are suspect in the eyes of non-Western governments and lesser powers. The ﬁeld of international law today accommodates a wide diversity of perspectives. Specialists diﬀer signiﬁcantly in their assessment of the character, scope, and

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eﬀectiveness of the law of nations. They may also disagree on its future directions, and even on its origins. Before embarking on an excursion into the history of international law, it may be useful to examine the “imagery” of its guardians and proponents. The images of international law have a life of their own, but international law does not always seem to be what it is. The Eurocentric Heritage For those who make up the mainstream of the international law community, it may be suﬃcient to deﬁne the ﬁeld in the classical fashion as “a system of rules designed to govern the relations among states”. If emphasis is placed on the need for systemic continuity and coherence, it might not seem to be necessary to seek out an origin of international law earlier than the 16th century, when the present system of inter-state relations took root in Western and Central Europe. But to insist on a modern European origin of international law is to depict the system as the normative infrastructure of a regional/cultural system of diplomacy, albeit one that would later grow – and is still growing – outwards to other regions and cultures through an expanding order of relatively benevolent but imposed authority. The “classical” Eurocentric approach to the origin of international law creates expectations that are not easily met under the conditions of contemporary world society. First, to begin the history of international law with a concert of relatively likeminded, culturally compatible, nation-states, such as those of 16th and 17th century Europe, grants primacy to the state over society and to one system of civilization over all others. This orthodox view of the origin of the international legal system gives paramountcy to statist values: for example, state sovereignty, state equality, the principle of consent, the inviolability of territory, sovereign immunity, diplomatic privilege, and the doctrine of non-interference in the internal aﬀairs of another state. In short, much of traditional international law seems designed to buttress the “sanctity of the state”. Second, the historical fact of European ascendancy during the period of the system’s maturation has ensured that almost the entire vocabulary of international law is of Roman, and therefore civil law, origin. The normative system promoted by Western European scholars was inspired by the “rule of law” ideal created by the jurists of Roman antiquity. To these scholars the emerging system could have no future but eventual ﬂowering as a formally complete system of law. It was agreed that international law was “legal” in character, not a disconcerting mix of legal, ethical and political elements. It had to be discrete, set apart from religion and morality as well as from politics. Third, the European heritage in classical international law ensured that professional technicians would nurture it, as they have nurtured the great legal systems from which it was derived and adapted for inter-state purposes. Flexibility within the system of rules would be assisted by legal doctrine, chieﬂy through resort to analogy with the most appropriate norms and concepts of civil law. Characterized as a “subdiscipline” of the discipline of law in general, the ﬁeld was expected to evolve as a “science” that one day would reach a stage of development where it would frequently

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“govern”, and not merely “guide”, the behavior of states, and of the national governments operating behind these abstractions. Fourth, because of the formal character of international law, in the traditional European conception, it was assumed to be necessary to ﬁll the admitted gaps with state-related concepts, institutions and procedures. The infrequency – and therefore underdevelopment – of international litigation was seen to be a particularly serious deﬁciency. For example, the shaky status of the doctrine of “state responsibility” was compared unfavorably with the robust health of tort (or delict) law in municipal legal systems. The tradition of legal formalism encouraged the notion, as we have seen, that international agreements could be safely analogized with contracts, despite the growing variety of international instruments and of the purposes they are increasingly required to serve. By the same kind of analogy, the international law of territorial sovereignty could be likened to the municipal law of real property, and United Nations law with constitutional law. More recently, the need for formal completeness of the system has suggested that priority should be given to development of the concept of “international crimes”, and support for a permanent court where those responsible for the world kind of criminal acts could be prosecuted. In classical perspective, international law is expected to become progressively more comparable with a Western system of formal law, not least in the new sector of international criminal law. Moreover, the traditional conception of international law – reﬂecting the inﬂuence of compatible European legal cultures – has elevated the status of legal values: clarity, certainty, predictability, uniformity, and objectivity. The danger is that undue emphasis on these virtues – as they appear not only to lawyers of Western heritage – may give the impression that international law is essentially a technical business designed to enable a professional elite to maintain the existing worldwide order of state bureaucracies, rather than a morally signiﬁcant eﬀort to progress toward a single world legal culture committed to social and individual welfare. Despite the succession of treatises on the law of nations from the late 16th century – revered by later jurists as the “classics” of international law – in the mid-19th century there was still “very little consciousness of international law as a discipline of its own, separate from philosophy, diplomacy, or public and civil law” (Koskiennemi, 2002). At best, it was an “amateur science”. Earlier scholars such as the German Georg Friedrich von Martens (1756-1822) and the American Henry Wheaton (1785-1848) envisaged the law of nations as a set of static rules based on the ancient concept of “natural law” but ampliﬁed and made speciﬁc to the purposes of modern diplomacy: “a narrow and distant law that looked like the complex rules of some exotic variation of the game of chess … devoid of political direction”. Conceived as a juridical science, international law took an intellectual step forward with the founding of the Institut de Droit International at Ghent in 1873. Only eleven of the 33 invitees attended, but most of the others soon joined as permanent or associate members. The Institut, originally conceived by the Belgian Gustave Rolin-Jaequemyers (1838-1913), is a somewhat Eurocentric elite of international jurists concerned with the rigorous development of international law as a highly disciplined normative science. This famous initiative was seen to be a necessary collective response to skeptics such as John Austin (1788-1859), who had sown the seeds of rejec-

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tionism with the argument that law proper existed only in the form of rules posited as the commands of a sovereign enjoying habitual obedience. Thereafter, the Institut would function as “the scientiﬁc organ of the common legal consciousness of the civilized world”. Rejecting the famous rejectionist’s command theory of law, the men of 1873 and their scholastic successors have led eﬀorts to create an increasingly systematic jurisprudence based on a distinct sector of the legal profession. The creation of this juridical elite was the institutional birth of the European heritage of technicality in the “discipline”, or sub-discipline, of international law. Meanwhile, as Rolin was preparing the “scientiﬁc” case for the Institut, the older American legal reformist David Dudley Field (1805-1894) had proposed a conference to draft a code of international law. This suggestion had attracted the support of a number of American paciﬁsts. Contacts with European fellow-paciﬁsts led to discussions with Rolin and his associates, but it was decided that science and paciﬁsm did not mix. The Americans, as noted by Koskiennemi (2002), were “seeking to establish an open organization whose composition, aims and working methods were directed toward political inﬂuence, especially the revival of the peace conferences”, and deviated from those of limited scientiﬁc orientation that had been contemplated in Europe. They were part of an eminently political eﬀort and improper for a scientiﬁc body as well as impractical, as there seemed to be no realistic prospect that governments would approve of a code without their involvement”. In retrospect, we seem to see the separating out of two culturally distinct strands of thinking about the nature and purposes of international law: the scientiﬁc/technical (“rule-oriented”) and the political/ethical (“policy-oriented”) strands. The irony that the case for policy orientation in the law of nations should be led by Americans ﬁrmly opposed to the use of force in international relations is unlikely to be missed by readers mindful of the recent history of US intervention. Reﬂections. The European heritage in international law is ﬁrmly established. It does not seem to be in danger of displacement. Yet, as we shall see throughout this work, it is increasingly under challenge, especially from the international law community of the United States. More openly, it is often confronted in the conference arena of global diplomacy. Of the six sectors reviewed in Chapter One, it is UNCLOS III that comes closest to illustrating the erosion of the European heritage in international law. It was the European powers that created for their own commercial beneﬁt the “Grotian order” in the law of the sea. Even today it is European shipping lines that have beneﬁcial ownership of most of the world’s commercial ﬂeet. It is these enterprises that have most reason to keep political control of IMO in European hands, and to restrict the rise of costs associated with higher standards of vessel-based pollution prevention. Intellectually and perhaps politically, European international lawyers had some diﬃculty adjusting to the overwhelming Seldenian movement at UNCLOS III that eﬀected a massive extension of coastal state jurisdiction as described in Chapter One. With the crucial assistance of the United States and other “ocean powers”, Europe succeeded in restricting coastal state intrusions on rights of transit under the regimes of the exclusive economic zone, archipelagic waters, and international straits, and held the

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line on the right of innocent passage through the territorial sea. Yet the luster of the “Grotian tradition” had been dimmed. It was Western Europe above all that led the unsuccessful ﬁght to preserve the binding “obligation” to make “prompt, adequate and eﬀective payment” in compensation for the expropriation of foreign assets, trusting to legal rule rather than economic diplomacy. In the UN Security Council it was three European powers in 2003 that provided the strongest resistance to the prospect, and then the fact, of US armed intervention in Iraq, in a political debate focusing on legal text and procedure as distinct from political ethics and the welfare of the Iraqi people. In the newly urgent context of global security concerns, Europeans may be expected to challenge the spreading pattern of interdiction of suspicious commercial vessels by US and other warships on the high seas, and even within the EEZ of other states. More deeply, non-European reservations about the European heritage in international law have cultural overtones. Especially in North America, exception is frequently taken to an excessively “legalistic” approach to the role of formal law in modern society. The inﬂuence of the civil law tradition associated with continental Europe can be seen by North Americans to introduce rigidities and formalities into issue domains that may seem to call for a degree of ﬂexibility and problem-solving practicality. In the more open societal framework of America, divisive issues are usually treated with more open reference to underlying public order values. Courts of law dealing with matters of public law, in particular, frequently engage in balancing out the interests in the hope of ﬁnding a policy based on reasoned compromise, rather than apply long-established rules as in property law and certain other sectors of private law, where strict rule-compliance is accepted as normal. To put the matter another way, most European and European-trained international lawyers are the product of a professional culture that elevates the role of technicality and places certainty at the apex of legal values. It is a tradition that venerates principles and the value of deductive linear development. International lawyers trained in the American mode are diﬀerent in two ways. Their education, especially in the more prestigious law schools, has forced them to look at law in social context; and their training in common law has exposed them to a fact-based diﬀerentiation of inductively derived precedents. Confrontations of Greek Philosophy The European cultural heritage includes also the technical development and professionalization of philosophy. In most of the cultural systems of Europe since the Renaissance, familiarity with the great works of Greek philosophy was the mark of an educated citizen. To classically educated European scholars within the domain of international law, sophistication was deemed unattainable without a philosophic sense of direction. As we shall note in Part Two, several schools of Greek and Roman philosophy contributed to modern ideas of international law and justice. Of these intellectual inﬂuences of long lineage, none has been more pervasive than the school of natural law. But this philosophic tradition has been generous to a fault, accommodating diverse

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interpretations. The version associated with the Greek Stoics, dating from the 3rd century BC, conceived eventually of an egalitarian law of nature held to be common to all mankind, and thus independent of institutionally enacted positive law. Natural law doctrine, in this version, was deemed to be in conformity with the “right reason” (logos) inherent in the human mind. This has always been an appealing notion to idealists, optimists, and even grudging skeptics, not least the great eclectic Roman lawyer Cicero (106-43 B.C.), who might be regarded as belonging to all three of these categories (Friedrich, 1963). To some other Greek philosophers, including the greatest intellect of antiquity, the possession of right reason was an advantage limited to Greek citizens. For Aristotle (384-322 B.C.), natural law governed relations among free and equal citizens and the law smiled tolerantly on Greek inequalities such as the subjugation of women and slaves (Verdross and Koeck, 1983). In the eye of posterity, the tradition of natural law philosophy represents an erratic amalgamation of noble and ignoble sentiments and a blurred vision of the future of humanity. It was not the Greeks but the Roman Stoics, such as Cicero and Seneca (4 B.C. – 65 A.D.), who used natural law doctrine to depict a future age of legal enlightenment. In that future, all humans would be accepted as citizens of the world community as well as of their own country. Their common entitlement to justice would transcend the barriers of state, race and social status. It is this, perhaps the most noble, strand of Graeco-Roman philosophy that has maintained the ideal of universality across the ages, and transmuted the restricted order of ius gentium (a law of nations) into the universal goal of world law for international society, unfettered by the statist restrictions of positive law. Natural law advocates (“naturalists”) in the ﬁeld of international law have recently recovered from centuries of declining inﬂuence. Some of the universal “rhetoric” of the UN Charter is derived from the natural law tradition. So, of course, are most of the newer, fundamental norms of human rights, international environmental law and international humanitarian law. These dynamic sectors might now be regarded as the “moral core” of the contemporary normative system of the world community. There are numerous examples of the legacy of natural law to the present international law community. Perhaps it is suﬃcient here to cite two early naturalists: the Dominican jurist Franciscus de Vitoria (1483-1546), who ﬁrst expressed the idea that “barbarous” peoples too must be considered equal members of the universal human community, contrary to the oﬃcial doctrine of the Catholic Church at that time, and the Jesuit jurist Francisco Suarez (1548-1617), who invoked the “common good of mankind” (bonum commune humanitatis). Both Vitoria and Suarez argued that a state under natural law is entitled to wage war only in response to an illegal act or omission. For Vitoria states were obliged to abstain from war, if absolute necessity does not impose it upon them. Suarez went further in suggesting that inter-state disputes should be submitted to international arbitration in the manner of the states of ancient Greece. It is impossible, he argued, that “the Author of nature should have left human aﬀairs … in such a critical condition that all controversies between sovereigns and States should be settled only by war: for such a condition would be contrary to wisdom and to the general welfare of the human race (bonum commune generis humani), and therefore it would be contrary to justice” (Verdross and Koeck, 1983).

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The other major branch of legal philosophy to exert a deﬁning inﬂuence on the history of international law is, of course, legal positivism. The early version of positivism known as “command theory”, espoused by Austen, is long since discredited. Modern law is much too complicated to be so neatly encapsulated, and his concept of “sovereign” cannot be found to have any real existence in modern history outside the domain of wholly disreputable tyrannies. The kind of positivism that survives in the philosophy of contemporary international law is the conviction that a priori constructs associated with the natural law tradition must yield to the empirical evidence of law prescribed by legitimate authority or process and satisfying the test of general acceptance. For many naturalists it was appealing to build international law theory on the foundational concept of “obligation”, which is inherited from Roman law and underpinned by the moral philosophies of classical Greece (Brierly, 1958). To the positivists, however, the key infrastructural or “core” concept of international law is “consent”. At the heart of the system is the consensualist philosophy that the only true “law”, within the collateral system of sovereign and therefore legally equal nation-states, is law which is accepted and consistently honored and applied by sovereignty – holders, which are in a position to withhold their consent. Law that qualiﬁes as consented is “positive law”, empirically veriﬁable, independent of a priori propositions about the nature or source of law. As noted previously, many international law theorists, reﬂecting their consensualist orientation, give priority to “conventional international law” (i.e. law based on explicit agreements) over “customary international law” (i.e. law based on general custom or apparent acquiescence). In the second half of the 19th century and throughout the 20th , it became common for states to negotiate legally binding agreements, including general law-making conventions. The passing over of many rules from customary to conventional form was taken as evidence that positive law – based on the theory of “state will” – was slowly replacing natural law as the orthodox philosophy. The view that agreements had precedence over custom seemed to gain in credence from the language of Article 38 of the Statute of the UN’s International Court of Justice, following that of its predecessor, the League’s Permanent Court of International Justice. Under Article 38 (1), the Court in settling international disputes must apply international law from four formal sources: * * * *

international conventions, whether general or particular, establishing rules expressly reorganized by the contesting States; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; subject to the provisions of Article 59, judicial decision and the teachings of the most highly qualiﬁed publicists of the various nations, as subsidiary means for the determination of rules of law.

Much can be said about this language, but it is diﬃcult to resist the inference that these four formal sources of international law, albeit prescribed only for purposes of adjudication, have been deliberately sequenced in order of importance from the con-

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sensualist – and, of course, statist – view of the positivists. By the inter-war period of the League, the tattered remnants of the natural law tradition had taken up residence in the hearts and minds of certain scholars, especially in their perceptions of the “general principles of law” that had accumulated beyond the reach of commandists. It would be distortive to leave the impression that natural law has been put to ﬂight. On the contrary, as the modern system has acquired a “moral core”, through the rapid rise of the international law of human rights and other ethically imbued sectors, issues arise with greater regularity to challenge the orthodoxy of the “late classical” period of international law. Tribunals are not normally the best place to seek out naturalists. Most judges tend to be positivists, classically trained technicians responsive to the expectations of other classically trained technicians. But in the decisions of the European Court of Human Rights, operating in Strasbourg under the aegis of the Council of Europe, there is a more equal struggle between the proponents of positive and natural law. It is in the nature of argument over such issues to draw out the long tradition of ethics and moral philosophy as well as the apparent intentions of the parties to the European Convention on Human Rights. Reﬂections. Most lawyers pride themselves on their professional practicality. They are not averse to argument on ﬁne points of legal doctrine. The splitting of doctrinal hairs is seen as a necessary feature of the technician’s world. Philosophy, however, like theology, may be seen as best left to the private life: a matter of individual faith or conviction. Can philosophical controversy be left, then, at the academic perimeter of international law? Four of our six vignettes in Chapter One invite uncertainty. First, we have seen that naturalist and positivist sentiment and logic were at war on the dusty trail to codiﬁcation of the law of treaties. Positivist logic suggested that preference should be given to the consensualist form of a treaty instrument rather than a mere restatement of principles, provided the Commission’s scientiﬁc work would not be subverted by the vagaries of the political arena. Moreover, several of the most difﬁcult substantive issues had obvious philosophic overtones. The internal-versus-external debate on the relationship between international and “municipal” law, and the paramountcy of pacta sunt servanda over a state’s own constitution, was a collision between natural law and positive law as well as a teasing conundrum for the strict consenualist. Philosophic overtones are equally apparent in the unresolved issue of treaty reservations: whose will should prevail? Even more clearly, the concept of jus cogens and the prospect of normative hierarchy are grist to the naturalists’ mill. The battle over treaty interpretation continues to be a struggle between the schools: between the “intention of the parties” or “ordinary meaning” approach usually favored by strict consensualists hewing to the positivist school and the teleological/dynamic approach more likely to be favored by naturalists or neo-naturalists willing to expand the scope of consented language in the interest of justice or another “external” goal. Most of the basic issues at UNCLOS III, concerned with the “restructuring” of the law of the sea, can be regarded as “pre-legal” rather than legal in nature. For many of the ethically-driven or politically-interested participants and observers, the most desired reform in the new law of the sea was the proposed designation of the ocean ﬂoor beyond the EEZ or the continental shelf as an area of “common heritage”. This

Images of International Law

concept, applied also to the “commons” of outer space and Antarctica, is in moreor-less direct descent from the natural law philosophy of Cicero, Seneca, Vitoria and Suarez. It will be interesting to discover how the scope of “common heritage” will be interpreted by the positivist majority of judges and scholars, on the one hand, and the naturalist majority of NGO activists, on the other. Future treatment of the Arctic Ocean may also be inﬂuenced by philosophic leanings. Positivists are likely to argue that the normal (i.e. UNCLOS III) rules of the law of the sea apply to the Arctic Ocean in the absence of treaty-consented textual evidence to the contrary. Naturalists are more likely to begin with an a priori ethical position, environmentalist or aboriginal in orientation, and argue the obligation of states to conform to these expectations. To some extent perhaps, the controversy erupting over the Iraq War was triggered by philosophical as well as cultural and political rivalries. For the positivists, the authority to intervene by force rests exclusively with the UN Security Council, or a veto-free majority thereof. In such a vital matter, compliance with legal text and procedure was essential, trumping moral considerations and even the welfare of most Iraqi citizens. The issue is one of lawfulness. For at least some naturalists, intervention issues in the increasingly ethicized ﬁeld of world law today raised more fundamental questions about “legitimacy” in contemporary world society: about the human values that should be protected by the system. For them, priority should not always be given to formal procedures. Sometimes the normative push of events may be paramount. Rule and Policy in Legal Theory In international law, as in other disciplines, there are diﬀerent kinds of “theory” (Macdonald and Johnston, “International Legal Theory”, 1983). Philosophical implications represent one dimension of theory-building. Most lawyers are more comfortable with theory in the form of doctrine (theory of law), which is technical in content and barely communicable to non-lawyers. Of more general interest is the road to highlevel theory (theory about law) in international law, which insinuates its way through the rolling hills and dales of the social sciences. The conceptualization of international law in the late 19th century owed much to German philosophy and French sociology. German philosophers, following Kant and Hegel, came around to accepting the state as the center of the will-energy needed to propel the emerging system of international law. French scholars took advantage of new thinking in the infant discipline of sociology, following the lines opened up by scholars such as the positivist and humanist philosopher Auguste Comte (1798-1857) and the pioneering sociologist Emile Durkheim (1858-1917). Important contributions to the cause of international law were made by French jurists such as the “indefatigable drafter” Louis Renault (1843-1918), his student Paul Fauchille (1858-1926), the civilist Antoine Pillet (1857-1926), and the radicalist politician Leon Bourgeois (18511925), who received the Nobel Prize in 1920 for his activism at the Peace Conferences after the First World War (Koskenniemi, 2002). Yet it is diﬃcult to discern any lasting impact that these French sociological contributions have had on the rigorous Euro-

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pean civilist heritage in international law, the orthodoxy preserved by the Institut de Droit International. The formalist mainstream of international legal theory in Europe has not gone unchallenged. European “legal realists” of one kind or another have made signiﬁcant contributions, such as Georg Jellinck, Max Huber, Georges Scelle, Charles de Vischer, Alf Ross, Georg Schwarzenberger, and Hans Morgenthau (Koskenniemi, 2003). In recent times, interest has been taken recently in the works of Schwarzenberger (Steinle, 2002), who, from the perspective of a “relativist” and “inductivist” (Steinle, 2003), excoriated the “Cambridge School of legal idealists” led by another continental European, Hersch Lauterpacht (Koskenniemi, 1997). Even more recently, a number of European scholars have re-assessed the contributions of Ross (Lorite Escorihuela, 2003). Yet the impression remains that European Legal Realism has not had a profound eﬀect on the way that European international lawyers actually deal with their lawyerly tasks. Totally separate is the course taken by American Legal Realism, which has created its own tradition of “counter-formalism” and become the intellectual mainstream of law teaching and practice as well as general legal theory in North America. Legal realism is only part of a much more pervasive, culturally distinct, American eﬀort to combat formalism in all its intellectual manifestations: a target which two British writers have described as “a reverence for the role of logic and mathematics and a priori reasoning as applied to philosophy, economics and jurisprudence, but with little urge to link these empirically to the facts of life” (Lloyd and Freedman, 1985). The emphasis on empirical studies in place of abstract formalism has become virtually the deﬁning feature of American social science, and arguably of American philosophy. It was urged, if not exempliﬁed, in the writings of the progressivists dominating the intellectual reformation in the last quarter of the 19th century and the ﬁrst quarter of the 20th. The seeds were sown by writers such as the philosophers William James (1842-1910) and John Dewey (1859-1952), the economist Thorstein Veblen (1857-1929), the historian Charles Beard (1874-1948), and the jurist Oliver Wendell Holmes (18411935). The quest for modern, liberated thinking was seen to require a rejection of the dogmatism associated with European formalism. To these “American Victorians”, the need for “sophistication”, not “rigor”, was paramount. Scholars should be equipped to contribute to the problem-solving challenges of the real world through pragmatism, not through servitude to the rules of an earlier age and a diﬀerent culture. No one perhaps has been more respected in American judicial history than Oliver Wendell Holmes. Like his eminent father, the poet and essayist, for whom catch phrases were the “blank checks of intellectual bankruptcy”, the jurist Holmes abhorred “current phrases”. Ironically, he is remembered best for the pithiness of his most famous dictum: “the life of the law is experience as well as logic”. Along with his judicial colleague Louis Brandeis (1856-1941) and his successor Benjamin Cardozo (1870-1938), Holmes crafted the modern American approach to law and legal education by acknowledging the role of “policy” in legal development and stressing the governance of social factors that underlie the American legal system. In the 1920’s and 1930’s the school of sociological jurisprudence, as expounded in the United States by Roscoe Pound (1870-1964), reinforced the American aversion to legal for-

Images of International Law

malism (Pound, 1923). Since then American legal realism has grown outwards in several other branches of legal theory, but all these modern movements have remained more or less hostile to the continental European tradition of legal formalism and the “myth” of objectivity. The inﬂuence of counter-formalism in the United States (and Canada) has been phenomenal, and apparently permanent. It is reﬂected throughout the entire system of education. Above all, it has invaded the elite law schools and taken them captive. Their legal realist heritage makes it diﬃcult for most American (and Canadian) international lawyers to concentrate on text to the neglect of context. Only reference to context, it is usually felt, can discover the purposes – the values and interests – served by the application of rules and texts. Contextualism tends to draw outward the North American jurist striving for intellectual excellence. The quest is “centrifugal”, seeking “sophistication “ that is “extensive” (and ultimately cross-disciplinary and cross-cultural) in scope. By contrast, the European counterpart is “centripetal”, venerating “rigor”, focusing “intensively” on the core of the discipline. In practice, the gulf is not necessarily as alarming as it sounds in theory. It matters what role is being played. At diﬀerent times, an international lawyer from either continent may be pulled one way for one professional purpose and pushed the other way for another. Preparation for a case before an international tribunal is likely to focus narrowly on principles and text, in what might be likened to the civil law, rather than the common law, approach to litigation. Negotiation in the “arena”, on the other hand – including the arena of law-making diplomacy- is likely to give much weight to context The legal realist (and sociological) task of opening up the ﬁeld of international law as an inquiry into context fell to a remarkable legal scholar and his alliance with America’s most creative, most cross-disciplinary, polymath: Myres S. McDougal (1906-1998) and Harold D. Lasswell (1902-1978). For 41 years this collaboration between two contrasting personalities produced a huge body of work designed to integrate “law, policy and science” studies into a uniﬁed ﬁeld. As envisaged by Lasswell, the intellectual community should be reorganized so as to integrate morals, science and policy studies into a new ﬁeld of “policy science”. The moral aim was the central value of a free society: human dignity. Science and policy were seen as necessary means to this moral end. Law, at the hub of policy science, became transmuted into a social dynamic that was envisaged as a “process of decision” (McDougal, Lasswell, and Reisman, 1969). In 1943 Lasswell and McDougal drew upon the Lasswellian concept of policy science to design a program to “transform legal education in the public interest”, whereby law students would be educated as future, “professionalized” leaders of a free society (Lasswell and McDougal, 1943). No genre of legal scholarship has moved further away from the traditional European conception of law as a system of formal rules; none has pulled the researcher further out from the core of the discipline; and none has created such a wide divergence between the European heritage and the American approach to law. In the history of international law, Myres McDougal commands particular attention. Son of a country doctor in northeast Mississippi, McDougal grew quickly into

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sturdy self-reliance. It is said that he became particularly adept with the sling, waiting for his Goliath. He was an unusually fearless boy. At the age of 15 he felt called upon to challenge the farm foreman to a ﬁstﬁght. To everyone’s surprise, including his own, he won. As the eldest of ﬁve, he was assigned special responsibilities in his schoolboy years, including that of driver on his father’s rounds – at a time when the state did not insist on the possession of a driver’s license. At the University of Mississippi, McDougal excelled in the classics, and by his ﬁnal undergraduate year he was teaching Latin and Greek. As editor of the student newspaper, he chose to defend the President of the University, Dr. Alfred P. Hume, whom the state legislature was threatening to ﬁre because of his decision to permit the teaching of evolutionary theory. Because of the adverse publicity stirred up, the legislature backed down. Later the favor was returned, when Dr. Hume broke the tie on the Mississippi Rhodes Committee in McDougal’s favor. McDougal’s introduction to the larger world came, curiously, from Kenneth P. Vinsel, an unusually academic football coach. International law was apparently the only subject Vinsel was allowed to teach. His career as a coach was mercifully brief, but he was a good teacher and encouraged his brilliant student to go back and read the classics of international law, often in the original Latin. McDougal already had two degrees when he arrived at Oxford in 1927. By the time he left, three years later, he had collected two more, and after one year thereafter had completed his ﬁfth, the JSD doctorate, at Yale Law School – all before his 25th birthday. His closest patron at Oxford was Sir William Holdsworth, the distinguished historian of the common law, who became a father ﬁgure to the young American. Another teacher of esteem was Professor James L. Brierly, who, like Holdsworth, invited McDougal home on a regular basis. Brierly was remembered fondly by McDougal as giving him a hard time in tutorials, forcing him to surrender his long Latinized words for short Anglo-Saxon substitutes. Both Brierly and Holdsworth greatly admired the young scholar’s talents. When the time came for McDougal to apply for admission to Yale’s graduate program, he was assured success by Holdsworth’s laconic note: “McDougal is the best student I have ever had.” By the time of his arrival at New Haven, McDougal was an English positivist. The new American Legal Realist environment that awaited him there seemed utterly alien and bizarre. Bitter battles were fought inside and outside the classroom, with Wesley Sturges usually at the epicenter, commanding the heights. None could prevail in argument against him, and within six months McDougal, like everyone else in the hothouse, had yielded to this force of nature. The most prodigious collaboration since Marx and Engels took root at the University of Chicago, where Harold Lasswell, a pioneer in the “behavioral revolution” in political science, had already established his genius in several disciplines that had not previously been considered cognate: political science, sociology, psychology, psychiatry, and logic. Although lacking McDougal’s warmth and ﬂair for sudden engagement, Lasswell had a unique grasp of knowledge and an unmatched capacity for ideation. Somehow, McDougal persuaded his skeptical colleagues at Yale Law School to appoint Lasswell, a non-lawyer, to the teaching faculty. Later he would be joined by other distinguished non-lawyer colleagues from philosophy, logic, anthropology,

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economics, history, and psychiatry, in surely the boldest bid to achieve cross-disciplinary sophistication in educational history. By the 1950’s, supposedly after the disciplinary peak of American Legal Realism, Yale Law School had become the citadel of “policy science”, at the furthest possible remove from the tradition of legal formalism. Even today, Yale is often credited, or discredited, as the most innovative American legal theory, at least at the counter-formalist end of North American realism. Out of the McDougal-Lasswell partnership a new kind of literature emerged, cast in a new and challenging terminology that was almost Kantian in its density. The uninitiated had reason to complain of its inaccessibility without a guide and compass. Yet it was a challenge that could be met if one were suﬃciently troubled by the bifurcations inherent in traditional legal thought and reasoning: guilty and not guilty; liable and not liable; party and non-party; binding and non-binding; lawful and unlawful, constitutional and unconstitutional; and so on. Fourteen years after Lasswell’s death their blueprint for a new, systematically re-conﬁgured, jurisprudence was produced (Lasswell and McDougal, 1992). That framework had attracted several younger collaborators to help produce treatises in specialized areas of international law (law of the sea, outer space, use of force and human rights) and inﬂuenced generations of graduate students – mostly non-Americans – to follow the same star in other sectors of the discipline. Within the framework of policy science, international legal studies have been developed in exceptional detail. To policy-oriented scholars, simplicity is unattainable, because it is necessary to give maximum attention to context and social process. The construct of “international society” poses major diﬃculties in empirical investigation. But the societal frame of reference led Lasswell and McDougal and their associates to repudiate all “schools” as wholly inadequate to the tasks of intellectual inquiry they set for themselves (McDougal and Reisman, 1983). Some critics of Lasswell have seen in him a positivist with a “technocist”, and therefore elitist, approach to democracy (Tribe, 1972), but admirers consider his conception of a policy science profession and his contextual orientation as transcending both positivism and technocracy (Torgerson, 1985). At least it should be conceded that he assigned an unusually pivotal role to the intellectual in the formation of public policy (Easton, 1950). He seems, in fact, to have been personally involved as a private adviser to several US Presidents of both parties: an advocate of “free society values”, and therefore a committed “participant”, rather than a scientiﬁcally detached “observer” as he purported to be. It was McDougal, of course, who provided most of the jurisprudential input, and the expertise in international law. Some critics have attempted to brand him as a “neo-naturalist”, because of the vigor of his assault on the consensualists and textualists of the positivist mainstream. But the adherents of the New Haven School have shown little respect for naturalists articulating authority in terms of divine will or metaphysical absolutes. In the ﬁeld of human rights, for example, policy science requires both “comprehensive and selective inquiry about empirical processes which are indispensable to the management of variables that in fact aﬀect decision. The establishment of the most basic goals by faith will provoke disputes with those of a diﬀerent faith and divert attention from close identiﬁcation of common interests

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through attention to the contexts which must be explored” (Morrison, 1983). McDougal and associates have had “an abiding diﬃculty” with the natural law approach, which they see as dependent on ambiguities inherent in concepts such as “universal reason” and “human nature”. Too many natural lawyers, they contend, “ground their concepts of authority in theological or metaphysical sources” (McDougal, Lasswell and Chen, 1980). For the policy scientist, there can be no easy road to universality through the juxtaposition of teleological terminology. McDougal’s rejection of traditional, legal formalist, theories of international law was shared in some degree by several of his most prominent contemporaries in the English-speaking world. As we have seen in Chapter One (“Innovation”), Wolfgang Friedmann, trained in the civil law tradition, could not quite bring himself to the half-way point between the formalist and functionalist positions on the nature of international law. Oscar Schachter (1915-2003) came much closer, perhaps two-thirds of the way, toward the view that law is ultimately an expression of policy. In much the same vein, another counter-formalist, Julius Stone (1907-1985), developed a compatible, but non-identical, theory. Stone was born and grew up in the Leylands district of Leeds in Yorkshire. His parents had arrived in North England from Lithuania several years earlier, part of the stream of refugees from Tsar Alexander III’s persecution of Jews and other dissenters from the Mother Church. They were joining a rapidly growing Jewish community of over 20,000, the largest in England after London and Manchester. Stone’s angry career was founded on an unhappy start in life. His gentle mother, Ellen, died when he was three. Leylands was virtually a damp slum that oﬀered little hope of advancement, especially to immigrants such as Israel Stone, who remained virtually illiterate in English throughout most of his life. The Jews of Leylands were the constant victims of the “rough and anti-Semitic” gentiles who lived there. Injustice was a daily companion. Stone’s emotional deprivation was sharpened by the arrival of a 19-year old stepmother, who was remembered later in life by Julius for her ﬁery temper and unloving disposition (Star, 1992). Through his unhappiness, Stone worked hard to earn his entry into Oxford University on a state scholarship. There he lacked money and the expected social graces. He had to endure subtler forms of anti-Semitism than he had experienced in Leylands. He took up boxing to meet this challenge, but was knocked out in his ﬁrst encounter in the ring. But, while still at Oxford, he joined the Inter-University Jewish Federation of Great Britain and Ireland, where he found his cause. By 1926 he had become foreign secretary of the Federation. Later, he did not reminisce fondly about his Oxford days, except in expressing his respect and aﬀection for his tutor, Professor G.C. Cheshire. Despite Cheshire’s small regard for jurisprudence (legal theory), it was to that area of study that Stone was drawn. He was especially impressed by the new counterformalist theories arriving from the United States: the schools of sociological jurisprudence and American legal realism. After completing two degrees at Oxford, in jurisprudence and international law, and a Master’s degree in law at the University of Leeds, Stone applied successfully for admission to Harvard Law School, putting intellectual stimulation ahead of a moneyed career in practice.

Images of International Law

At Harvard, Stone quickly became committed, permanently, to the sociological theory of law. This practical approach, espoused by many of America’s greatest judges, admitted the relevance of public policy, contemporary morality, and the sense of injustice in the making of judicial law, as much as logical deductions from precedents. It was a product of the common law, but transmuted by the ethos of the open American society. Dean Roscoe Pound was a formidable and prickly academic, but, according to Star (1992), Stone won the great man’s ear, “perhaps because he was not averse to ﬂattering him: Pound was particularly susceptible to ﬂattery”. Stone’s caste of legal thought was deeply aﬀected by Pound’s societal “theory of interests”; by cognate continental jurists such as Rudolf von Ihering (1818-1892), Josef Kohler (1849-1919), and Rudolf Stammler (1856-1938); and by pragmatic and progressivist American thinkers such as William James (1842-1910), John Dewey (1859-1952), and Charles Beard (1874-1948). Like Yale in the case of Myres McDougal, Harvard shaped Stone’s career as a combative counter-formalist. Like McDougal, Stone was always insistent on the relevance of context: the values at stake as well as the principles applied, the practices as well as the precepts. Like McDougal, he had to defend himself against the charges that he was a naturalist and relativist, thinly disguised. In his passion against injustice, he became an unﬂinching advocate for Israel and the cause of Zionism, exposing himself to the further accusation of serving as an advocate, not unlike McDougal whose jurisprudence of the open society and human dignity was often put down by his critics as advocacy for the American way of life and for US foreign policy. By the 1970’s, other variations of the American anti-formalist movement had sprung up at other institutions, and even at Yale Law School. At New Haven, McDougal’s successor, Michael Reisman developed a new application of policy science. He and his associates opened up contextual inquiry through case-studies focusing on responses to “international incidents”, where the role that international law played in the decision-making process is subjected to careful evaluation (Reisman, 1984). In Canada another variation of policy science emerged in the form of “legal functionalism”, purposive in focus but fully contextual in scope (Johnston, 1988). Most European international lawyers, who abhor the evidence of a trend to “relative normativity”, have, of course, shown their own commitment to the tradition of legal formalism and absolutism that is under attack (Weil, 1983). For many formalists the main threat in the age of globalization is that regionalization and specialization are working to undermine the unity of international legal order (Dupuis, 2002). By positivists, the New Haven School has been criticized for failing to assist in the search for legal rules. The Lasswellian language, a product of social and behavioral science, has been deplored as an unnecessary departure from the familiar terminology of legal scholarship. McDougal himself was seen as an unabashed advocate for US foreign policy, when other prominent American international lawyers were more critical on certain issues. The most common complaint, however, has been that the “apparatus” of policy science scholarship is too elaborate, and that the eﬀect of so much erudition is merely to reduce law to what is reasonable in context: the charge of subjectivism and relativism. The law should be objectively determined by a scientiﬁcally disciplined search through an existing system of formal rules (Kingsbury, 2002).

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Opponents of the “drift toward relative normativity” have ascribed the evils of “indeterminacy“ and “anti-pluralism” to natural law theory. The drift has been defended by others on various grounds, not least on the proposition that legal theory cannot aﬀord to divorce itself entirely from the psychological and political reality of how decisions and choices are made. Tasioulis (1996) argues that Weil’s critique is, ultimately, “a plea for the priority of a statist conception of international society and predictability in norm-formation over the communal consensus for a just world order”. Others, defending Weil, characterize such a consensus between East and West as a “(self-defeating) utopian conception”, and emphasize the paramountcy of formal rules and process as pre-requisites of law (Beckett, 2001). These issues were debated frankly in 1971 at a colloquium in London on “Diverging Anglo-American Attitudes to International Law”, co-sponsored by the American Society of International Law and the Royal Institute of International Aﬀairs (Royal Institute, Symposium, 1972). This meeting of minds from both sides of the Atlantic was organized by Rosalyn Higgins, a British international lawyer who took her JSD doctorate at Yale Law School under McDougal (Higgins, 1963). Later in her career Professor Higgins was appointed to the International Court of Justice – the ﬁrst female member of the Court and perhaps also the ﬁrst ICJ judge to reﬂect the New Haven approach to international law. In her introduction, she suggested that, despite historic ties between the two legal cultures, there was a widening divide between the mainstreams of the British and American international law communities. Whereas in the United States there is a “readily accepted relationship between law and policy”, in Britain, she argued, there is “a profound distrust of the injection of policy considerations into international law. If our American colleagues believe that international law is a tool of social engineering, ours to build with, the British prefer to emphasize its neutrality in respect of social values, and further suggest that policy rapidly becomes indistinguishable from politics. The introduction of policy considerations, many British would argue, makes international law unscientiﬁc and unpredictable. They urge that neutral rules are the protection of the weak against the strong; that the acknowledgment of policy considerations introduces a subjective element; and that the outcome will be an even greater reluctance by states to use the international legal process”. In defending the “place of policy in international law”, Oscar Schachter pointed to the “pervasive ambiguity” of the discipline, whose “practitioners are involved in a continuous process of choice giving rise to conclusions on which learned and expert opinion will diﬀer”. Frequently the norms of international law involve more than just “rules” (“decisive norms”). The normative system includes also principles, standards, and purposes (as in Article 1 of the UN Charter). “Policies” such as these are not absolutes or categorical imperatives. The inclusion of such norms in the deﬁnition of international law is essential to the “American approach to law as a process for attaining our social ends” (Schachter, 1982). Most of the British lawyers participating in the symposium expressed reluctance to admit “policy considerations” into the realm of international law. One of them, Robert Y. Jennings, suggested that the “right thing … at present in our violent and disorganized international society is the rule of law and not the rule of policy”. On

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the American side, Richard Falk conceded that the word “policy” functions, in many ways, as a code word for “politics”, and that the whole relationship between law and politics has “tantalized jurists for generations”. International lawyers, even those employed as legal adviser to their government, have a moral responsibility to the larger international community, beyond the reach of “careerist” or “vocational” concerns. An exclusion of policy from legal analysis “tends to make moral cripples of us all”. The truth may be that high-end theory is no more likely than philosophy to resolve basic issues. Any position is open to well-founded criticism. If one argues ﬂat out, like the policy science theorists, for the “concreteness” of international law in the name of reality, it is diﬃcult to deny the danger of presenting the world community’s normative system, based on “common interest”, as an “apology” for the policies of certain states. On the other hand, the rule approach, which insists on the objective “normativity” of international law as a constraint on state policy – especially on the use of force by the great powers – appears utopian in its disregard for the real world of state practice, and fails to be convincing because it lacks concreteness (Koskenniemi, 1990). Is it possible to imagine an intermediate position between the rule and policy approaches that maintain the distinctiveness of the international legal order, while managing to be responsive to the external, extra-legal factors of politics, culture, history and morality? Richard Falk (1969) excoriates international lawyers on both sides of the rule-versus-policy divide who can be characterized as “apologists”: that is, scholars who purport to be detached but seem to see most issues from the perspective of their own country’s national interest. But his own concept of international law is as broad as McDougal’s: “an aggregate conception embodying those structures and processes by which authority is created, applied, and transformed in international society”. Focusing on the “authority system” as an “attribute of the wider extralegal conception of an international system”, he treats the international legal order as the “sociohistorical product of convergent perspectives of formal authority and actual behavior”. His jurisprudential perspective is, then, not greatly dissimilar from that of other prominent US scholars leaning to the center, such as Oscar Schachter (1968). In the 1980s counter-formalism also manifested itself outside the Lasswellian framework of policy science. Since then the main non-formalist alternative to policy science in the ﬁeld of international law theory has been the approach known as “critical legal studies”. Derived mainly from European social and literary theory, this transAtlantic orientation is, above all, an assault on the textualist and rule-based tradition of law in general. In the process of “deconstruction”, these theorists, like policy science scholars, concentrate on the reality behind the text, which is characterized as “argument” or political “discourse” (Allott, 1990; Kratochwil, 1989; Koskenniemi, 1989; Kennedy, 1987). In questioning the concept of “legitimacy”, it challenges the rule-of-law ideal and oﬀers international law as an ideology (Georgiev, 1993). Another variation is the feminist theory of international law, which has been developed principally in North America, the United Kingdom and Australia (Charlesworth, Chinkin, and Wright, 1991). In taking exception to abstractionism as a mode of male control, it represents a rejection of legal philosophy and categorical theorybuilding. Though limited to single-factor analysis, it can be considered compatible

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with the contextualist methodology of policy science and the ideology of critical legal studies. Still another evidence of counter-formalism in American legal literature is the “law-and-economics” approach. The concentration on economic pragmatism is so remorseless that some proponents such as Richard Posner (2003) come close to undermining the principle of democracy as well as the rule-of-law ideal. So far, however, the cause of international law has been spared the same, roughly pragmatic, treatment. The most recent trend in opposition to the tradition of legal positivism and ruleorientation in international law comes, once again, from the United States. AnneMarie Slaughter (1995) has charged classical international law with being “increasingly irrelevant” for failing to acknowledge the emergence of more eﬀective modes of “international governance”, at a time in world history when the modern state begins to show signs of “disaggregation”. In her view the best way to strengthen international law is through political and intellectual commitment to the value of liberal democracy in national societies. From the value perspective of “liberal” theory, international law should be evolving as an ideology devoted to social and individual welfare, rather than to the sanctity of the state. Scholarly eﬀorts should focus on the relationship between the theory of international law and the theory of international relations (Slaughter, 2000). Critics have questioned whether “liberal” states really do behave better (Alvarez, 2001). Can the contradictions inherent in the theory of international law ever be resolved? If not, does it matter? Reﬂections. Virtually any general theory about law – or international law – is based on overgeneralization. So each theory tends to oversimplify what may be the most complex of all human institutions. On the other hand, there is so much competition for space in the ﬁeld of international legal theory, so much diversity, that the literature as a whole greatly complicates the professional challenges that must be met by the practitioners of contemporary international law. Often it is prudent to leave theory to the theorists. A history of international law must, however, be located within a conceptual framework. Surely the perceived relationship between theory and history must be made explicit. In the chapters that follow in this work, the author is constantly reminded of the intellectual distance between Europe, where he grew up and ﬁrst studied law, and North America and Asia, where he has spent his entire career. The seriousness of the modern jurisprudential divide, between Europe and North America, between rule-oriented legal positivists and policy-oriented legal realists, varies with the context. Of the six vignettes in Chapter One, three in particular illustrate best the impact of theory. As noted in the section on “Intervention”, controversy over the US armed action against Iraq in 2003 erupted between two factions within the international law community: between the majority who focused on the rules against the unilateral use of force that limit such action to veto-free, majority decision-making by the UN Security Council, and the minority who invoked a wider range of world community values

Images of International Law

believed to be at stake in an age of security concerns and outrageous human rights violations. For the former, the crucial imperative was compliance with rules that have, or come close to, the status of paramountcy (jus cogens), at the highest level of the normative hierarchy. However, for many who opposed the US action against Iraq the reason for opposing it was not so much the paramountcy of rule compliance, as the positivists maintained, but the moral supremacy of the policy of war prevention. For many members of the general public, opposition to the US invasion of Iraq reﬂected the impact of anti-American sentiment around the world. For lawyers of the policyoriented school, on the other hand, the issue had to be seen in a larger context than that of the UN Security Council debate, since the resolutions against Iraq between 1991 and 2003 did not reﬂect the entire range of responsibilities devolving on the Council under Article 1 of the Charter, nor the fundamental change that had taken place in international society since the 2001 terrorist attacks on the United States. By this reasoning, deference should be given to policies of security, democracy, stability, and the maintenance of peace. So, it appears, policy-orientation did not determine the position of the legal realists, who were divided, but rule-orientation did, on the whole, determine the response of the legal formalists. Second, in the context of treaty law, legal realists tend to support the teleological (or dynamic) approach to treaty interpretation, since it permits – indeed requires – examination into the social purposes of the norm or text within the context that presents itself. Again in treaty law, policy-oriented theorists are likely to join with philosophic naturalists in supporting the argument that certain, truly fundamental, treaty regimes – on weapons proliferation, torture, or climate change, for example – can become universally binding, even on states that have not conferred consent through the normally necessary acts of signature and ratiﬁcation, or accession, if this is the only way to rationalize the universal purposes of the regime. Third, the absence of rules speciﬁcally addressing the unique, ice-bound, nature of the Arctic Ocean environment invites theory to ﬁll the vacuum of positive law. Realists are more likely than formalists to invoke international community purposes and general principles as the evidence of an emergent normative system for Arctic waters. Formalists might argue that the law-of-the-sea rules generally applicable to oceans should apply to the Arctic until speciﬁc Arctic rules are prescribed through a formal act of law-making. Re-Imagining World Order Many of this writer’s colleagues, even in North America, are satisﬁed with the existing infrastructure of international law, even though it is frequently stigmatized as “classical “ or “formal”. Most of them, after all, make a living in a technically diﬃcult, sometimes tenuous, ﬁeld that rarely rewards eﬀorts to reconceptualize it in modern terminology. Indeed technicians in the international law community tend to disapprove of new-fangled language, as do most of their counterparts in other sectors of law. It takes an especially brave – or perhaps a foolish – heart to oﬀer a comprehensive history of world order that wanders far from the familiar pattern of Western values and constructs of previous centuries.

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Yet, more than ever, a case can be made for making international law generally intelligible. If a history of world order is to be written at all for a non-technical readership, it seems essential, to this writer, that it be disengaged from the mainstream of legal terminology. “Legalese” has a lethal eﬀect on those who read for pleasure as well as information. Admittedly, legal jargon is widely regarded as indispensable within the profession. Usually – but not always – it raises, not lowers, the level of precision attainable among those who have taken the trouble to master the esoterics. But the public needs to know much more about the issues and opportunities confronting the international law community in our time. The growth of world order norms and institutions since the mid-20th century has been spectacular, and the drama shows every sign of increasing. To convey the scope of these challenges, an unusual eﬀort deserves to be made to present the structure of world law in modern, innovative terms. A historical and non-technical way of “imagining” the growth of world order is by reference to “models” (or modes of idealism) that can be constructed around the civic values that seem the most fundamental in human aﬀairs. In Chapter One the reader was introduced to “international law in action” within six contexts, which were chosen to display the functional diversity of the law of the nations. But the principal themes of these vignettes do not exist at the same level of conceptualization. Principles and pacts are “elements” of international law; regulation, protection, and reform are “purposes” of the international system of which international law is part; and intervention is a “decision-making process”. It may be useful, then, to add to heritage, philosophy, and grand theory other kinds of “images” of international law: models built around the central purposes or major functions of the system. High-level theory might be dismissed by “speciﬁsts” as unduly general: too much scope and not enough focus. The same complainants are likely to be even more dismissive of legal philosophy as unacceptably abstractionist in caste. The heritage, they may add, is sterile. Critics of “pure theory” might be less uncomfortable with purposive models that oﬀer guidance, in context, on the extra-legal facts and considerations that should be included in the framework of inquiry. The most famous taxonomy of values developed as a framework of analysis for jurisprudential purposes is that of Harold D. Lasswell, who made it the ethical core of his “policy science” approach, co-pioneered in the ﬁeld of international law along with Myers D. McDougal. But the value categories of the New Haven School of Yale University, developed in the 1950’s and 1960’s, reached out to the most fundamental aims of human welfare. The breadth of their system of “value clariﬁcation” made it diﬃcult to convert formalists, who abhorred the idea of importing values so far beyond the traditional limits of legal inquiry: well-being, respect, rectitude, power, wealth, enlightenment, skills and aﬀection. Perhaps the neo-Lasswellian functionalist list of civic values oﬀered here could be regarded as a more personal approach that helps to identify emerging themes within the framework of a world history. Model-making comes out of social science, and may be immediately suspect in the mind of traditional international lawyers. Even in the domain of political science, and indeed in other social and behavioral sciences, the dangers of “model mania” have been nailed to the post. In the absence of empirical studies, they may seem not to

Images of International Law

oﬀer much greater certainty or speciﬁcity than the gross abstractions they purport to displace. Yet, suitably deployed by those uncomfortable with the strictness of “rule orientation”, they provide focus as prisms and causal constructs. More speciﬁcally, models facilitate investigation into the role of power and ideology behind the international legal order, and necessitate comparison of legalized and non-legalized norms and institutions (Slaughter, 2000). It might seem excessive to compare as many as eleven models of international law that serve as prisms or lenses, through which historians, social scientists and international lawyers themselves perceive world order issues, goals, and methods. But if we accept the merit of an open rather than closed, system of world order, we should take into account the factor of “emergence” in world history. 1. Order. One of the most conspicuously recurrent themes in the literature of world order is the basic remedial function of the legal system. To the problem of latent anarchy inherent in a “world system” of sovereign states, we might add the more recent threat of technological chaos and that of cultural abomination posed by religious fanaticists bent on the destruction of inﬁdels. In a society perceived to be internationally structured and divided, international law is the cement needed to keep together a system of global cohabitation. In ancient China, formal law, in its penal form, was developed by a controlminded bureaucratic elite, whose own interests were served by purporting to represent the prevailing ethic of Confucianism. With its emphasis on the virtues of obedience, compliance, and stability, the famous philosophy served over the ages as the principal linkage between law and order, though it had to endure a constant stream of intellectual challenges through the long course of Chinese history. It was based on a relatively optimistic view of human nature, much more lenient in attitude than its most conspicuous critics, like the Spartan-like Legalists. Yet it has often been argued that the long-protracted codiﬁcation of Chinese law was intended to preserve social control through a strict Legalist regime, though ostensibly drawn from a Confucianist popular ethic. In the history of Western and Central Europe, on the other hand, the relationship between bureaucracy and formal legal development became more complicated: the idea of law as an instrument of control had to compete with the idea of law as an agency of justice. Despite the divergence between oriental and occidental traditions of law, what they had in common was an understanding of the frailty of civic society. Local resistance to distant aliens was almost always the norm in early times. Early religions tended to be local allegiances – arguably, often power arrangements built on manipulation of the spiritual, superstitious and acquiescent majority by an ambitious, well-armed minority. Success in the building of large-scale kingdoms and empires was possible because of the obvious general weaknesses associated with most eﬀorts to rule locally. Nothing is more important in world history than the counter-force that beat down the preference for local community: the idea of a form of centralized legitimate rule that, popular or not, created a system of widely shared civic and commercial beneﬁts

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2.

The gradual emergence of relatively competent polities throughout world history has, of course, had much to do with the frequent eruptions of war. It is hard to believe it was always easy for individuals or communities to have a clear favorite in times of conﬂict. The pattern of popular preference is not easily traceable through oﬃcial, self-serving records. At least in the context of Western history, public opinion remained obscure until the early modern era of the nationstate. By then we can recognize the paramountcy of state sovereignty, which grew out of the preference for a system of independent states: each, being independent, should have the right, equally, to withhold their consent to external customs or rules that they did not recognize as governing them. By then, it was possible to perceive the evolving inter-state community as essentially anarchic, in the sense that no polity was, or could be, subject to the authority of any other. To the extent that the most powerful state remained dangerously willful, the major purpose of international law, in the eyes of the vulnerable, was to serve as the only institutionalized form of normative and legitimate constraint. World order was, and is, at its essence, a shield for the innocent or disadvantaged. Autonomy. There are still many international lawyers who perceive basic inequities in the present system of world order, including those imposed collectively by groupings of advantaged states. To political realists, the history of international relations is essentially a history of power-holding, in which small or relatively weak nations have always been at a disadvantage vis-à-vis the major military, economic and political powers. By this reckoning, states cooperate with one another only when it serves their national interest to do so. Diplomatic success in negotiating cooperative arrangements is limited by the will of the most capable and resourceful players. Consequently, the most vulnerable states need an order of legal rules that can be invoked as a constraint on the misuse of power. The idea of international law as a shield had been a constant motif for hundreds of years, but it has had to endure the skepticism of the ages. During the period of Western imperialism, many nations or territories were denied the status of legally sovereign and politically independent states. As colonies or other dependencies they had no standing as subjects of international law. Any privileges they enjoyed in the international community derived not from entitlement but from the favor of the colonial power. Since they lacked autonomy, they had no direct access to the institutions of the world community. Relief from exploitation, if it came at all, came from the benevolence of the patron state. The autonomy model of international law today holds out the prospect that the norms and institutions of world order will prevent the recurrence of neoimperial exploitation in the post-colonial era. The concepts of state sovereignty and territoriality, and related constructs and doctrines, are seen to be necessary to protect the weak. But sovereignty was never as absolute as the lesser powers might have wished it to be. The paradox of international organization is that only autonomous states can participate as members, and yet the fact of participation increases the member’s dependency on others. Global systems such as the United Nations, the World Bank, and the World Trade Organization pay

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4.

daily lip service to the autonomy of their members, and yet function primarily through a vast network of obligations that make the weaker members increasingly dependent on them. Cynics argue that since these systems are largely controlled by the United States and other major powers, the weak are still subject to the will of the strong, although less obviously so than in the age of overt imperialism. Realists respond by suggesting that the state, in today’s changing world, is a concept that needs to be re-designed (Reisman, 1997). Would not a world order designed around the virtue of conformity demand a less exalted priority for the autonomy of the individual state? Regulation. Often, the objectives of order and autonomy are seen, in context, to be nearly contradictory. But the cognate values associated with world order over the ages are numerous, and more diﬃcult to deﬁne within logically neat relationships. Four others may, however, be given prominence as sub-themes, which are ancillary to the basic purpose of world order. Indeed, the ﬁrst of them, regulation, tends to be understood today as the principal institutional sub-set of international order, and increasingly it is the form of recent world order initiatives taken to curb excessive state autonomy. The need for detailed, bureaucratic, regulatory process throughout the world community is one of the transformative features of modern history. Admittedly, the concept of “regulation” can be applied to earlier times, but as a phenomenon of the organized world community it is a product of the 20th century, conceived but not yet fully institutionalized before the ﬁnal quarter of the 19th. International regulation can be understood as a direct response to the appearance of modern science and technology, which have utterly changed our understanding of the universe and of the roles that we might inherit. As the idea of progress became associated with material welfare, it became necessary for international institutions in the early 20th century to apply regulatory techniques to solve governance problems of increasing complexity. After it became accepted that national government was responsible for managing activities in the public interest, it became possible to extend regulatory controls beyond national boundaries, ﬁrst to neighboring states and then to the international community at large. Today the concept of a “global order” assumes continuing progress toward the enhancement of an ever-expanding network of regulatory agencies and regimes. In the development and maintenance of these arrangements, the role of international law is central. International standards have to be negotiated, along with appropriate principles and procedures. A way has to be found, within arenas susceptible to nationalist sentiment and the logic of national interest, to build regulatory systems on a rational but realistic basis in the common interest. War Prevention and Management. A much older, and more utopian, strand of idealism in the story of international law is the eﬀort to limit or eliminate warfare. There have been numerous proposals since the late Middle Ages to ﬁnd a way to “perpetual peace”. But, at least in the Western world, public opinion has become increasingly paciﬁst in recent years. Since the end of the Cold War, in

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or around 1991, the younger generation in many countries has sensed in the end of bipolar world politics an opportunity to renounce the use of force except in the case of self-defense against actual, impending, or foreseeable physical attack. Unlike the older generation, who lived through the terrors of state aggression, most post-war citizens look to international law, perhaps above all, as a morally prescribed order responsible for the maintenance of peace. For advocates of the war-prevention-and-management model, especially in Europe, the UN Charter has a peremptory status, chieﬂy because of its emphasis on the role of the Security Council as the sole possessor of mandatory world authority in the regulation of force. Extreme paciﬁst ethicists are sometimes reluctant to concede even the occasional need to manage disorder through the use of force as long as there remains a reasonable case for continuing UN diplomacy even in the most provocative circumstances. Yet, as we have seen in Chapter One, unconsented intervention focused on a failed, divided or “rogue” state is often the only potentially eﬀective option available to the Security Council, if it is politically prepared to deal with the problem of international insecurity. In most contexts that seem to invite UN intervention, the decision to intervene is complicated, and often sharply politicized, by the collision of several models of international law: the models of order, regulation, autonomy, benevolence, cooperation, and constitutionalism, as well as war prevention and management. Even to many non-paciﬁsts, the ethics of intervention can pose dilemmas of particular importance to practitioners as well as theorists in the domain of international law and diplomacy. The role of force in international relations continues to be controversial, and a challenge of considerable complexity in the international law community. World Constitutionalism. For many lawyers, a formal legal system is not really formal unless it provides its own structure of institutional hierarchy. Among its “primary” rules, there should be direction on the levels of authority within the system. Most national systems of law have a clearly prescribed order of authority, which is governed ultimately by institutions at the highest level. Wellestablished systems operate on the expectation that all institutions at the lower levels – as well as all citizens (and other residents) – will comply with decisions at the highest level. Systems that function normally in that way are said to represent “constitutional order”. From the formalist perspective, the most serious deﬁciencies in the international legal system are constitutional in nature. International lawyers should be engaged, therefore, in the ﬁlling of gaps, both normative and institutional. Progress is measured by the evidence of evolution toward a world constitutional structure with ancillary norms and procedures comparable to those of a national constitution. The challenge is how to restructure international society as a constitutional order. For many international lawyers – but especially those molded by the European heritage of legal formalism – progress in the development of world law is best evidenced in the growth of international adjudication. For many, constitutionalism is part and parcel of the many-headed ideal of “rule of law”, espe-

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cially if credence is given to the potential independence of the judiciary. Legal development through the decisions of international tribunals is the process believed most likely to be “scientiﬁc”, kept pure through detachment from “political” or “moral” considerations. Adjudication is not only the ideal, most peaceful, method of settling inter-state disputes, but also an opportunity for jurists to contribute to doctrinal development in a prestigious non-political institution. In the European mainstream of international law – and to a lesser extent outside Europe – the “litigational” ideal is at the center of the constitutional model. For others, however, the most impressive evidence in support of the constitutional model of international law is the United Nations and its multi-functional infrastructure. The core is seen to be the UN Charter, which, despite its original treaty form, has acquired a status much closer to that of a world constitution, rather than that of a merely special multilateral contract (Macdonald, 1983). Almost all international lawyers concede the unique status of the UN Charter. Although it is frequently criticized for its outmoded features, the Charter has become, by general consent, the most sacred of all texts designed for the world community as a whole (Johnston, 1997). Most now agree, however, that it is a seriously ﬂawed text. Numerous revisions have been suggested since its introduction in 1945. UN reform proposals cover a wide range. The most insistent is a suggested revision of the structure and decision-making procedure of the veto-ridden UN Security Council. Many promoters of the constitutional model also argue that the International Court of Justice, the UN’s judicial organ, might be given an extended judicial authority as the “guardian of legality” within the UN framework (Gowlland-Debbas, 1994): something like the power of judicial review possessed by the highest court in certain national constitutional structures. There is, of course, no world equivalent to national legislation whose “constitutionality” could be determined judicially, but it has been suggested that the virtually unlimited legal powers of the UN Security Council under Chapter VII of the Charter should be subject to review by the International Court of Justice, on the request of the UN General Assembly and perhaps other institutions. Yet for over sixty years the UN Charter has remained virtually unchanged, despite the controversies that have overtaken the “globalization movement”. It is not the easiest of times for world leaders to commit themselves in the arena to reformist ideas that resonate dangerously in the current debates between the “New Left” and the “New Right”. The irony is that the interpretation and application of the UN Charter are tasks of the political organs of the United Nations: chieﬂy of the Assembly and the Council (Higgins, 1963). Formalists promoting the constitutional model are, therefore, continually frustrated by the reality that UN Charter law, perceived by them to be the nucleus of the world law system, rests on political, not legal, foundations (Macdonald and Johnston, 2005). Conﬂict Resolution. There are many who deplore above all the existence of conﬂict in international relations and look to international law as the world system that provides resolutive norms, institutions and procedures (Peters, 2003).

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The use of international arbitration was probably fairly common during the period of the Greek city-states, and even earlier. Although the practice fell into desuetude for two millennia, it re-emerged in the 19th century and became increasingly common in the 20th, especially in the context of trade and boundary disputes. The creation of a standing World Court, ﬁrst under the League and then under the United Nations, gave unprecedented credibility to the conﬂict resolution model of international law (Higgins, 1991). Not all cultures, however, elevate the judicial tradition to the same extent as the Western civil law and common law countries. Some governments display extreme reluctance to refer important disputes with other states to an international court or ad hoc tribunal, trusting rather to the diplomatic process that remains within the disputants’ control. Some regard the Western model of third party adjudication as overly formal and ill-suited to the production of an amicable outcome. Major global treaty initiatives to accommodate diverse cultural traditions and preferences have resulted in dispute settlement systems based on choice: fact-ﬁnding, mediation and conciliation, for example, as well as binding third party adjudication. The maximal degree of choice was designed into the system created at UNCLOS III for the settlement of disputes arising from the new law of the sea, and later carried into the regime for parties to the Straddling Stocks and Highly Migratory Stocks Agreement of 1996. It is too early to predict any pattern of choice within these systems. From the perspective of the conﬂict resolution model, considerable progress has been achieved in the development of international law since the late 1980s. Several of these mechanisms are not yet fully operational, much less highly active, but there is now a greater frequency of resort to the International Court of Justice (Merrills, 2004). Moreover, several new global and regional tribunals have been created since the early 1990s (Peters, 1995). International lawyers have better reason now than ever before for optimism about the future of international litigation. But it is still unusual for truly fundamental issues to be brought before an adjudicative body; a bilateral mechanism for dispute settlement seems almost always a conspicuously ill-suited contributor to the treatment of multilateral matters that make up most of the “world agenda”. Despite some favorable trends, it should be observed that the role of China and other non-Western powers is still impossible to predict. System Convergence. For others, the most compelling value behind world order is universality (Capotorti, 1983). For thousands of years, legal systems – now mostly characterized as “national” – have grown up in more or less independent ways, despite common ancestors and a willingness to resort to analogy. For over a hundred years, through uniﬁcation, codiﬁcation and other exercises, it has become realistic to work incrementally toward the convergence among national legal systems, at least in economic and other sectors that seem to reﬂect the convergence of national interest. As we shall see in Chapter Four, the idea of a single system of world law was envisaged by Alexander the Great, admittedly in his capacity as an aspirant to world rule, but also as a cosmopolitan, cross-cultural idealist. Later, the great

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Roman lawyer, orator, and statesman, Cicero, wrote compellingly of a golden future, when the entire world would enjoy the protection of the same laws and concepts of justice and constitutionalism, under an improved version of Roman law and government. Seneca followed in a similar mode of legal idealism. Today we have the advantage over Alexander, Cicero, and Seneca. Behind us we survey an impressive modern history of successful transnational exercises in the uniﬁcation and codiﬁcation of laws, both national and international. From the late 19th century, generations of comparative lawyers, mostly Europeans, have concentrated on the diﬀerences between the major legal systems of the world: the typical and atypical versions of the civil law and common law systems. More recently, comparatists have found it more useful to suggest the advantages of merger or adaptation in sectors of potentially common interest (Johnston, 1998). Since the 1970s signiﬁcant advances have been made in the internationalization of national laws under UN and other auspices. The sectors of common interest that lend themselves to the processes of uniﬁcation, codiﬁcation and harmonization are mostly those of economic or commercial orientation, through a mixture of semi-coercive as well as persuasive diplomacy (Johnston and Ferguson, 1998). At least in theory, the concept of common interest is expanding in the absence of cultural, economic, or educational barriers (Ferguson and Johnston, 1998). To the extent that international law is becoming the agency of globalization, how, if at all, can the international community factor in relevant, but relatively unused, norms developed by Islamic and other non-secular systems of law? Civic Benevolence. At least four other kinds of idealism seem to have played an equally important role in the development of world order, mostly in ways of more recent origin. The ﬁrst of these models, civic benevolence, stands outside the strictly juridical limits of classical international law. For many modernists, the international legal system should be seen to be evolving as a regime of “world law”, designed eventually not for the beneﬁt of states but of society in general. By this view of things, the system is just beginning to break out of its early obsession with the nation-state and its preoccupation with legal values elevated to protect the “sanctity of the state”. Developments in the second half of the 20th century suggest that international law should now be seen to be an extension of early eﬀorts to achieve civic enlightenment through transnational, cross-cultural policies of benevolence to all members of world society. From this perspective, international law has its origin in primitive antiquity in those distant, imperfectly recorded, eﬀorts by a few enlightened rulers to deal benevolently with their subjects and with neighboring rulers and their peoples. Law, by this model, begins with sentiments rather than rules. The concept of “civic benevolence” might be construed broadly enough to include that of “order”, since some rulers of the distant past who must be accepted as “enlightened” or “civilized” by the standards of the day, such as Alexander the Great, are remembered by posterity for their ability to impose order rather than their personal virtue or their acceptance of enlightened rule as a moral commitment..

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A conqueror even today might be considered “civilized” or “benevolent” if sufﬁcient evidence is shown of genuine concern for the welfare of society. Along with David Hume (1711-1776) we might regard the moral sense – “moral sentiment” or “moral motivation” – as more directly inﬂuential on human welfare than either ideology or law. The benevolence model puts a premium on considerations of individual and social justice. It gives weight to recent advances in the development of human rights and the promotion of humanitarian concerns at the international level. It endows international law with a “moral core”, and leans to the tradition of natural law values that transcend the prerogative of state authorities to grant or withhold consent. It challenges statist principles such as sovereignty and the duty not to interfere in the domestic aﬀairs of another state. Autonomy and majoritarianism are suspect norms in a world perceived as insuﬃciently benevolent. It is possible, however, to see the statist system of the classical era as building on a foundation of fairness, though limited to the members of the club (Franck, 1993). But civic benevolence, in any modern sense, was not a precondition of membership. Fairness is an intensely subjective test. The only reasonably certain way of achieving equity particularly within a cross-cultural context is through a mechanism that guarantees equal treatment between parties. Later, as the classical system opened up to others, it became less outrageous to depict it as a system of fairness, as the doctrine of formal equality required that all states should be treated as equals (Anand, 1986). In the “classical” age down to1919, the system of international law was essentially designed as the legal infrastructure for the bilateral inter-state relationships that were by far the most conspicuous manifestation of the inter-state community (Simma, 1994). Fairness carried the moral imperative of reciprocity as a pre-requisite of a normative order chieﬂy concerned with the smooth operation of an inter-state system that was envisaged in “transactional” terms (Johnston, 1988). The fairness model is still uppermost in the minds of most practitioners of international law who are oﬃcially responsible for the day-to-day maintenance of bilateral sectors of diplomacy, such as trade, extradition, cross-boundary relations, international dispute resolution, and most kinds of routine treaty-making. It is also of high relevance to the process of international adjudication, which is essentially concerned with the problem of transactional breakdown that periodically aﬄicts bilateral inter-state relationships and may even threaten to render them dysfunctional during a period of maximal stress. Today, of course, questions of fairness and reciprocity are treatable also within multilateral or even global institutions such as the World Trade Organization. However, some contemporary scholars who invoke the fairness model no longer envisage the goal of equity within an exclusively statist framework. In arguing instead for a broader conception of international law that places at its center the moral obligation to pursue the betterment of human welfare, writers such as Franck (1993) have come close to combining the models of fairness and benevolence. Development. The ninth model of international law is related to the autonomy model, and yet is distinguishable from it. For the ﬁrst quarter-century or

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more of its existence, the United Nations gave highest priority to the nationbuilding needs of its developing members. Since the end of the Second World War the more aﬄuent national economies have grown enormously, widening the disparity between the richer and poorer nations. Although the process of decolonization was virtually completed in the early 1970s, the UN General Assembly, the Economic and Social Council (ECOSOC), the specialized agencies of the United Nations, and other key institutions such as the United Nations Development Programme (UNDP)) have continued to view international law within the nation-state framework, chieﬂy as the ethical and institutional apparatus for the transnational promotion of economic and social development. In the 1970s and 1980s a great eﬀort was made by the developing countries to use their combined strength as UN member states to put national developmental ethos ﬁrmly in place at the moral center of the international legal order. In speciﬁc sectors considerable gains were achieved. At the Third UN Conference on the Law of the Sea (UNCLOS III), for example, the extension of coastal state jurisdiction was considered a major gain for many developing countries. These beneﬁciaries gained not only in legal autonomy but, more speciﬁcally, in the acquisition of natural resources within coastal areas that had now become an extension of their land economy. During those years similar eﬀorts were devoted to national development needs, chieﬂy under the aegis of the New International Economic Order (NIEO). Advantage was taken of leverage opportunities created by the rivalries between the two dominant superpowers, but, with the demise of world communism as a counterweight against world capitalism, the NIEO movement became a spent force. Since the early 1990s, the development model of international law has become less dependent on UN General Assembly programs and more anthropocentric in orientation. Specialists in “international development law” now move more frequently within the vast and ever-growing network of non-state institutions, where considerable resources – especially human resources – can be made available to local situations where social distress is most acute. “Bottomup” strategies often oﬀer the best hope in many developing countries for direct improvements in the welfare of the populations, especially in rural communities at a distance from the center of their political system. 10. Environmental Sustainability. International environmental law is a relatively new sector of specialization. Its ethical attraction is widely apparent. In many cultures it has acquired a collective spiritual force akin to religion, but it has developed most rapidly as a linkage among secular humanists. Arguably, the environmental movement today is the most intensely ethical compartment of international law, and commands the most committed loyalists. For many transnational ethicists, international law maintains credibility as a transnational normative system only to the extent it keeps at its center the obligation to preserve the vitality and variety of the planetary environment (Laferriere and Stoett, 1999). The environmental (or ecological) model of international law looks forward to an imagined future rather than back to a remembered past. No one knows how

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bleak the future might be, but most citizens around the world are probably convinced that the global environment is under stress and that stricter controls on human activities are an important task for international diplomats and lawyers. The general public may be confused by diﬀerences within the scientiﬁc community regarding the rate of climate change and uncertain whether the Kyoto Protocol represents the best approach to the mitigation of future harms. Yet there is surely a growing realization that as certain environmental problems become more critical, it is important to ﬁnd a more eﬀective way of inducing compliance with environmental treaty regimes. Non-compliance with the basic principles of international law is not the daily problem that critics sometimes suggest, but regime compliance and capacity-building are surely two of the major challenges that need to be addressed by the international system at large. These problems take up much attention in the international legal community. Environmental ethos has had to ﬁnd a modus vivendi with developmental ethic. Since the Brundtland Commission’s report, a synthesis has been oﬀered to the world community: the concept of sustainable development, or more precisely the ethic of “sustainability”. Yet semantic neatness should not conceal the diﬃculties that continue to complicate the formation of public policy in numerous resource use and management contexts. Moreover, international lawyers of a pragmatic, problem-solving disposition are wary of newly emergent principles of environmental law that may be accepted as relevant guides to sound policy, but might not yet be accorded transcendant status as “governing” norms that would limit the scope of rational decision-making. 11. Cooperation. Finally, it seems necessary to include among the major purposes of world order what might be termed “cooperative ethic”. It has to be admitted that such high-order abstractions can hardly be expected to display the exclusiveness of watertight compartments. The cooperative model may be the “leakiest” of all these categories. It can be criticized that cooperative behavior is judged by ethical, not juridical, standards. Yet it seems hard to deny the centrality of cooperative ethic in our international order, and impossible to challenge the seamlessness of patterns of human cooperation from the earliest of times. Given the dangers of conﬂict through successive competitiveness, and the selfishness and greed sometimes associated with nation-building, the case can be made that the central concern of the world legal order is the development of cooperative arrangements for the eﬀective treatment of the most complex problems and the most fundamental issues of modern society. In behavioral terms, the central task of international law and diplomacy is to facilitate cooperative action as a constraint upon competitive and autonomous behavior among states and other international actors that is seen to be dangerous or at least selﬁsh. The cooperative model of international law is optimistic. It assumes, against some evidence to the contrary, that state representatives, directly or through international organizations, can succeed in overcoming their normal preference for autonomous or competitive behavior. After almost a century of experience with international organizations, some lessons have been learned. For example, normally there must be strong inducements in place – either eﬀective “negative

Images of International Law

sanctions” (sticks) or seductive “positive sanctions” (carrots) – if member states are to sacriﬁce “sovereignty” (autonomy) as a matter of national interest. Likemindedness in a fundamental issue context may sometimes be unattainable due to cultural disparity. On the other hand, agreement on a common approach to a highly complex problem that appears not to be culturally constrained may be amenable to eﬀective implementation, if disadvantaged governments have access to capacity-building opportunities. Recent experience suggests, at least in certain circumstances, that successful capacity-building depends on “civil society coalitions” consisting of goodwill partnerships of state and non-state institutions. The “functionalist logic” of the cooperative model of international law asks the analyst to keep in mind the strengths and weaknesses of the area of international law called in as the frame of reference. International environmental law is framed around ethical constructs that may be better suited to govern the treatment of fundamental issues than of complex problems. The transition to sophisticated environmental problem-solving is just beginning. The law of outer space, seen originally in terms of fundamental “commons” issues, is also just beginning to enter a more technically sophisticated stage of development as new space technology permits progress toward a more rigorous regulatory order. The same is surely true of weapons control. On the other hand, progress in the international law of human rights seems more diﬃcult to achieve in an age of increased religious and cultural fundamentalism (Johnston, 1988). As we shall see, the second half of the 20th century brought into play sophisticated international agencies designed and trained to deal with highly complex problems as well as sensitive political issues. The UN Security Council’s confrontation with Iraq over its suspected weapons program, involving the International Atomic Energy Agency (IAEA) and other inspectors under the Council’s direction, is well remembered. Reﬂections. Most international lawyers are likely to concede the importance of all of these models. At the level of abstraction, they may not appear to conﬂict with one another as irreconcilable modes of idealism. They all generate realistic expectations. They may also be acceptable to practically minded international lawyers with no cultural commitment to the European heritage, to either of the major contending schools of philosophy, or to any overarching theory. Taken together, these eleven models might be said to encompass most of the diverse and legitimate modes of idealism at work in the international law community. They stimulate initiatives in most sectors of inter-state diplomacy, and provide a measure of disciplined integrity in the treatment of international disorders. Occasionally, however, they collide with one another. Always they have to be accommodated with the forces of national interest and the dynamics of the political “arena”. Obviously, the values and principles associated with several of these models may tend to merge into one another. In recent years, for example, the need for compromise between the development and environment models has resulted in the articula-

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tion of a new area designated as “international sustainable development law” (Segger, Khalfax, and Nakhjavani, 2002). In many contexts, however, there may be a problem of choice, especially in circumstances where legal development priorities have to be set. Law-making initiatives can use up a huge quantum of diplomatic and juridical talent, as the 15-year history of UNCLOS III reminds us. How will decisions be made? Usually, the choice of model to mobilize the world community is determined by the political attractiveness of the suggested initiative. Leader states or inter-state coalitions must be willing to expend money and diplomatic energy on the processes of promotion, organization, negotiation, and implementation. Sometimes the likemindedness of inﬂuential diplomats and lawyers in the leader states or pivotal coalitions is the key to determining priorities in the development of international law. The choice may sometimes depend on the self-perception of a few inﬂuential individuals. International lawyers – whether in the government arena, the academic tower, or the commercial forum – respond, like lawyers generally, to diﬀerent kinds of challenges. Some, driven by responsibility to their client, may operate essentially as advocates, following a careerist or vocational path, ensuring that personal choice coincides with professional or political interest. They are paid to be “warriors”. Others, perhaps especially those who inhabit the tower, are likely to be freer in the choice of allegiance to alternative models of international law. Some academic lawyers are geared for intellectual combat, and seek an outlet for their “missionary” enthusiasm. Others, more dispassionate by nature, may prefer the role of “analyst”. Taken together, these eleven models might be said to encompass most of the diverse, legitimate, and realistic modes of idealism at work in the international law community. At some level of consciousness, they stimulate honorable initiatives in all sectors of inter-state diplomacy, and provide a measure of disciplined integrity in the treatment of international disorders. Frequently they collide, one with another. Always they must contend with the forces of national interest and the dynamics of the political “arena”. Dilemmas Other theories and models could be added to those included in the above summary. Conﬂicting personal preferences abound in the literature. Some of these perceptual diﬀerences can be traced back hundreds of years. Today, certainly more than ever before, the discipline or ﬁeld of international law vibrates with “tensions”. How creative or divisive are these tensions likely to become in the early decades of the 21st century? What lessons can we learn from world history that might assist the international law community in addressing current dilemmas? The “ﬁrst-level” dilemmas are essentially cultural, arising out of the European heritage in international law. Heritage proponents insist on the need for ﬁxity in a discipline seen to be devoted to “objective” legal analysis. Those most protective of that heritage, by no means conﬁned to Europe, tend to be rule-oriented technicians. Most of them are statists attracted to the autonomous, constitutional and conﬂict resolution models of international law, depending on the situation that presents itself. Prog-

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ress in the discipline is seen by them to depend chieﬂy on consistency, compliance, and uniformity in state practice within the traditional framework of core concepts developed historically to protect the “sanctity of the state”: sovereignty, territoriality, diplomatic and consular immunity or privilege, state jurisdiction, the law of treaties, and the regulation of force. The building of a world constitutional order is believed to be an essential task. Unilateralism is suspect: it may even endanger the vitality of existing multilateral structures and procedures, especially in war-prevention contexts where global cooperative diplomacy is seen to have the sanctity of moral imperative. The tradition of technicality associated with the European heritage welcomes, above all, the addition of new international courts and tribunals whose judicial contributions are expected to consolidate doctrine and to assist in the depoliticization of the system. Others, especially in North America, see some diﬃculties with the heritage. It is perceived to be a regional rather than universal kind of idealism. It is too statist, failing to acknowledge the importance and permanence of a more open world society, whose complex problems and fundamental issues demand that the best talents and most useful energies be drawn out of non-states as well as state institutions in the interest of “world governance”. Heritage thinking, based on rules, is criticized as unduly elitist, purporting to govern decisional processes that must normally be determined democratically by a wide range of extra-legal factors and considerations. “Second-level dilemmas” do occasionally emerge from philosophical debate on the respective merits of the natural law and positive law schools. For over half a century a third contestant in such debates was the modern school of Marxist-Leninism (Kartashkin, 1983), which argued the paramountcy of class struggle as a historical determinant of the status and role of international law. By the mid-1990’s it was evident that the Soviet ideological contribution had not survived the demise of the Soviet Union. Today only certain kinds of fundamental issues bring out the old rivalries between naturalism and positivism, but these issue-areas represent most of the more dynamic sectors of the ﬁeld: human rights, international environmental law, regulation of force, international humanitarian law, and intervention. A much wider range of dilemmas today have their origin at the “third level”, in the modern theoretical divide between rule-oriented and policy-oriented jurists. These dilemmas are cultural as well as jurisprudential or philosophical in nature. Most of the new, anti-abstractionist, counter-formal or “functional” theories in international law have their origin in the United States. They bear the distinctively American imprint of faith in rational problem-solving through cross-disciplinary and crosscultural sophistication. They reﬂect a determination to de-mystify international law, but their eﬀorts to that end, heavily inﬂuenced by social science terminology, create diﬃculties even for the professional reader. The basic dilemma in the ﬁeld is how important it is to master complexity through the acquisition of policy “sophistication” rather than disciplinary “rigor”: a struggle between scope and focus, between breadth and depth. Yet, to the North American “legal functionalist”, none of these ways of “imagining” international law seems adequate, given the extraordinary range of purposes that the world legal order is now called upon to serve. Heritage, philosophy, theory: all seem

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to underestimate the heterogeneity of the system in operation today. “Functionalist logic” suggests that the “fourth-level” models approach may be more useful. Reﬂections. In Chapter One, the section on “Intervention” emphasized the trend towards multi-purpose intervention, both in situations where the UN Security Council fulﬁlled its role under the Charter and in situations where it did not, for one reason or another. Most intervention issue contexts are highly politicized, and sometimes deeply divisive. So also are most of the debates that follow among commentators in the international law community. In the aftermath of the US-led invasion of Iraq in 2003, most international lawyers outside the United States, and especially in Europe, condemned the initiative as a grave violation of international law. Those who condemned could be regarded, theoretically, as adherents of at least three of the eleven modes: the (statist) constitutional, autonomy, and war-prevention-and-management models. Supporters of the coalition initiative would have had to invoke the (non-statist) benevolence model and point to the failures of the system by reference to the order and cooperation models. The co-existence of multiple models of relevance to that serious issue complicates the task of identifying the legal options available. It may not help to “ﬁnd the rule”, but it does perhaps serve to clarify the various dimensions of a reasoned analysis of the role of international law in an unusually sensitive and controversial situation involving vital national interests. For “missionaries” and “warriors” already pre-committed to certain principles or values, which are perceived to ”govern” the decision-making process, the models have only a supportive function by way of rationalization. History International law was never before asked to meet so many divergent expectations. The tensions generated by the conﬂicting aspirations of contemporary world society convey the importance of re-examining our past. If international law is imagined within a multi-functional framework, its history must be broadly conceived: as an open inquiry stretching across the landscape of world history. The value of the war-prevention-and-management-model, for example, cannot be assessed without an understanding of the history of war. It will be necessary to reach back to the very distant past to catch the ﬁrst glimpses of the antecedents of international law, as we now know it, if we are to do justice to the civic benevolence model of international law. Emphasis will have to be given to the Age of European Ascendancy in order to appreciate fully the extraordinary contributions of the European heritage and the impact of European schools of philosophy. We must review the early nineteenth century eﬀorts to introduce management regimes for European lakes and rivers, if we are to appreciate the progress achieved under the regulatory model of international law. The appearance of the League will have to be looked at from the perspective of the constitutional model, and that of the United Nations from the perspective of developmental, environmental and cooperative ethos. The most recent challenges to the state sovereignty tradition cannot be evaluated without a return to the origins of the autonomy model in the 16th century.

Images of International Law

It is the eleven models, above all, that suggest what to look for in the vast record of world history. They are our “gateways” to the history of world order. Not least it seems essential to draw upon world history in order to counteract Eurocentric bias, which continues to distort the imagery of international law and weakens the claim of the “science” to have universal credentials. Admittedly, not all non-European, non-Western international lawyers have felt called upon to challenge the notion that the law of nations originated in the European inter-state system that evolved out of the 16th century. Yet to concede to that proposition is to diminish the cultural contribution that their distant ancestors might have made to the values, ideals, principles and practices that are seen today to be an important part of the international legal heritage (Anand, 1983; Wang, 1983). The period between the 16th and 20th centuries was an era dominated by a pattern of Western colonial subjugation, when the colonized peoples had no opportunity to participate in the fashioning of international norms (Onuma, 2003), despite the high level some of their civilizations had reached much earlier. “World law” does not deserve the eﬀort put into its promotion unless it is seen to be “inter-civilizational” in its evolution (Onuma, 2000). It follows that a global, cross-cultural approach to the history of international law must also be cross-disciplinary. To agonize over the separate existence of the history of international law as a “discipline”, or a “sub-discipline”, or as a teaching subject, is to suﬀer unnecessarily. Existentialist angst seems to accomplish very little, unless it serves to motivate the historian to make use of diﬀerent modes of inquiry (Hueck, 2001). A global, cross-cultural, cross-disciplinary approach assumes that one is dealing with a ﬁeld that demands intellectual “sophistication”, as well as technical “rigor”. The historian must be prepared to draw upon a wide array of disciplines, including those that are still developing their methods of research. Needless to say, the earliest periods of world history create the most diﬃcult challenges in the search for reliable evidence (Butkevich, 2003). It is gratifying to see that more and more of the leading European specialists in the history of international law agree on the need to go back much further than the 16th century, and to explore the earlier contributions of all major civilizations (Preiser, 1984). Reﬂections. The die is cast! The functionalist, multi-model approach to the theory of international law, suggested above, commits the historian – and his reader – to a long story of slow and uneven human development: to a cross-cultural history of legal, moral, political, and psychological maturation. It might seem unlikely that we shall ﬁnd a great deal to cheer about. But then we may be surprised. Final Reflections Some readers may be perplexed by the variability of imagery in the international law community. Indeed, if the divide between the European and North American branches of the “invisible college” is as deeply cultural as suggested, the conceptual diversity might be considered disturbing. It would be more comfortable to suppose that the global legal order possesses a degree of unity- otherwise it hardly deserves to be considered a “system”.

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Many practitioners of international law would protest that the alleged schism between Europe and North America has not prevented the specialists of these two cultural regions from working closely together in most arenas where the politics and business of international legal development are negotiated. By and large, the mainstream cultures of the two continents share the same civic traditions. To the extent we are still far short of a common “world culture”, and that this undercuts the goal of unity in international law, there are more serious ethnic and religious strains elsewhere in world society. Specialists in human rights, especially, are constantly frustrated by the lack of cultural unanimity on certain issues that might seem fairly basic (Capotorti, 1983). Many writers have emphasized the negative eﬀects of political inequality and economic disparity on the process of international legal development. Despite constant eﬀorts under the United Nations to facilitate nation-building in numerous ways for the beneﬁt of Third World developing countries, only a modest proportion of them have begun to catch up with more aﬄuent states. Almost everywhere, poverty remains a major problem, not least at the inter-state level. All the more important it might be, then, to give a high priority to unity through doctrine: a unity at least for the technicians. However desirable that may be, it is made more diﬃcult by the drive to specialization within the international legal profession. The trend to specialization is not, of course, conﬁned to the discipline of international law. It is a familiar phenomenon in most areas of knowledge and scholarship. As a consequence, international law has become a ﬁeld: an “assemblage of specialized areas of inquiry, in most of which the contributions of legal specialists become intertwined with those of specialists from other disciplines” (Macdonald and Johnston, “International Legal Theory”, 1983). For reasons that are intellectual in nature, contemporary international law has undergone a process of fragmentation. It may be asking too much of “theory” to create a uniﬁed ﬁeld. At the risk of overconceptualizing the problem of non-unity, it might be suggested that there are now three distinct approaches to international law, each following its own course of development: the litigational (juridical), the operational (diplomatic), and the societal (ethical). As we explore the past, it will be important to trace the evolution of professional inter-state diplomacy. In early times there was usually a close bond of loyalty between the ruler and his envoy, though breach of trust was not unknown in an age of dynastic rivalries. As more and more were called into diplomatic practice, it was usually as highly educated members of a professional elite, never far removed from the core of the rising modern bureaucracy and from the code of subservience to the national interest. As they matured, the modern systems of government became the chief centers of information about the expanding world of civic aﬀairs. In course of time, the most senior international lawyers in government service obtained access to the highest level of foreign policy-making, depositories of vast knowledge about governmental and inter-governmental operations. Although drawing upon the same legacy – the same stock of principles, rules and doctrines as the jurists in the “tower” – the bureaucratic practitioners of the “arena” were often required by the nature of their employment to be more ﬂexible in the treatment of the classical rules – norms that might sometimes seem designed to

Images of International Law

“guide” rather than “govern”. To the guardians of the “role of law” ideal articulated in the tower, there was reason for discomfort that their legacy might be under challenge from the new practitioners. Despite the rise in the number of teachers and scholars in the ﬁeld of international law, they were massively outnumbered by the proliferation of international civil servants who would have active roles in the system of world public order. Arguably, the third third of the 20th century was of particular importance for the development of world order. In what might be described as the “post-classical” period, many of the “transnational ethical community”, directed by non-state institutions and entrepreneurial academics, began to apply non-state resources to world order issues of the day. Most of their attention was taken up by the ethical deﬁciencies of the “international system” in general and of contemporary international law in particular. It may be too early to argue that their societal (ethical) approach to international law has attained a coherent orientation comparable to that of the tower and arena, but the establishment of the “forum” of Internet communications is certainly a major contributor in the consolidation of “world society value” for the 21st century. Already the forum is now well represented in “partnership initiatives” with tower and arena participants, and even with representatives of the corporate community. It is no longer so easy to distinguish participant from observer. A history of international law should, then, range over the long inter-civilizational course of world history: over contexts that reﬂect the evolution of legal norms, diplomatic and bureaucratic practices, and democratic values, consistent with the litigational, operational, and societal modes of treatment of fundamental issues and complex problems. The questions to be addressed should be framed around the eleven functions of the system: order, regulation, autonomy, civic benevolence, constitutionalism, development, environment, cooperation, war prevention and management, conﬂict resolution, and convergence of legal systems.

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Part Two Out of the Mists

3 Primitive Order

Seeking Out Antiquity How could anything as sophisticated as contemporary international law have its roots in primitive antiquity? Modernists may argue the futility of raking over the ashes of the distant past for the traces of a phenomenon that could not have an ancient origin. Even today it is still normal to begin with a deﬁnition of international law as a “system of rules” designed for the “family of nations”: a phenomenon that did not take the stage of world history until the 16th century A.D. But systems do not come together suddenly; rules of human conduct have been in existence for thousands of years; and cities were interacting as early as the 3rd millennium B.C. It seems more accurate to see the system of international law, as we know it now, as a gradual accumulation of elements – ideas, norms, practices, institutions, and especially values – that were shared in some degree among pre-modern peoples. These “elements” might be regarded as the preconditions of what would evolve into “world community law”. Even if international law is conceived as “world order”, the skeptic might question how we could expect to ﬁnd the seeds of such a modern notion at a time of minimal awareness of the “world”. But the need for public order was surely accepted by those acquainted with the fact or threat of total lawlessness (Richards and Van Buren, 2000). In any event, the idea that so-called primitive society was anarchic may be quite fallacious. Certainly the appearance of cities and city-states created the opportunity for developing a rudimentary form of bureaucracy. There has always been a “problem of order” in structured society (Wrong, 1994). But the need for some degree of order was surely also felt by early traders, especially when it became common to engage in the exchange of goods with strangers. The mutuality of beneﬁt inherent in commerce must have created a very early community of interest in developing some degree of inter-tribal trust as the basis of reasonable expectations. Moreover, the advantages of according special protection to accredited envoys could not have escaped the minds of those engaged in the earliest forms of diplomacy. International law is still institutionally incomplete. Legal positivists and political realists compare it unfavorably with highly developed legal systems that operate at the national level (i.e. “municipal” law systems). It has even been likened to a “primitive” legal system. However, its detractors usually concede that international law does

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serve at least as a “moral” inﬂuence on the behavior of nation-states – as a branch of “public morality” – and as a mutual convenience when matters of “vital national interest” are not engaged. So by their own minimalist view of international law, these critics should be ready to concede the potential value of examining the past for early glimmerings of a general awareness of the need for “civilized” standards in the treatment of foreign rulers and peoples. Moreover, political realists who are inclined to reduce the signiﬁcance of international law today should be the ﬁrst to accept that the international legal order has always rested on political foundations. Their own logic should be supportive of eﬀorts to trace the ﬁrst evidences of an international political order. Early “international experience” might be expected to be revealed not only in the development of ideas and institutions, but also in the tenacity of myths and symbols (Bozeman, 1960). Seeking out the elements of international law in primitive antiquity might be likened to assembling a jigsaw puzzle, except that an unknown number of pieces are missing and no one knows what the full picture looks like. Most historians of international law who have been willing to examine the record of the distant past have focused on the period of “classical antiquity”, which in the Western world is usually associated with Greek civilization that began not much earlier than 600 B.C. But a step further backward seems justiﬁed in order to capture the ideas and practices of the ﬁrst great civilizations. In the second millennium B.C. there were three principal power-centers in the Near East: the Egyptian civilization that settled in the Nile Valley before 4,000 B.C.; the civilization associated with the Mesopotamian city-states founded around 3,000 B.C. in the river delta between Assyria to the north and Babylonia to the south; and the less well-known Hittite Empire of Asia Minor that seems to have been established by the 20th century B.C. A step backward would also incorporate the early cultures of ancient China and India and perhaps other non-Western civilizations, which, taken together with the ancient Near East, are perceived as representing the beginning of the literate stage of human development. The search for the origins of prehistory can, of course, go back even farther. Arguments are made for taking 11,000 B.C. as the start-up period of pre-historical development. Around then, it seems, village life began. Some time thereafter, early human societies learned to domesticate plants and animals. By that time watercraft had been invented in the Mediterranean, although maritime navigation might have a much older history in the South Paciﬁc (Diamond, Jared, 1999). Town life had apparently begun in the Near East at least as early as 7,000 B.C. Archeologists now aﬃrm that the earliest forms of agriculture, the earliest domestication of wild animals, the ﬁrst signs of awareness of the human condition, the ﬁrst pottery and bronze artifacts, the ﬁrst sea voyages, did not begin with the Sumerians, or with Menes (Narmer), the ﬁrst legendary pharaoh of Egypt, but some two, three or four millennia earlier, in Asia Minor, Palestine and Iraq (Braudel, 2001). Most historians, however, agree that the development of writing should be given unique status as the watershed that delineates the boundary between history and prehistory, even although a few civilizations in Central America reached an advanced level without the beneﬁt of a writing system. It may seem inconceivable that the idea

Primitive Order: Seeking Out Antiquity

of “civilized” relations among peoples could have been implanted in primitive society before the invention of writing. It is more or less established that writing systems of one kind or another had begun to evolve by 3,200 BC in Mesopotamia, and perhaps also in Egypt and elsewhere. The Mesopotamian system of civilization consisted of two distinct cultures: Babylonia in the south and Assyria in the north. Babylonia itself was divided into two regions: Akkadia (Accad) in the north, and Sumer in the south. At the dawn of Babylonian pre-history, Sumer in the extreme south of Mesopotamia was occupied by Elamites and Sumerians, and somewhat later they were joined by the Semites, who settled in Akkadia to the north. The Elamites were driven into the mountains, where they established an independent existence. Although they played no further part in the development of the Babylonian culture, they had already contributed to the writing system, whose invention is generally credited to the Sumerians (Driver and Miles, 1952). The ﬁrst (Elamite) writing in pictographic form apparently did not appear until the creation by the Sumerians of a writing system in Southern Mesopotamia around 3,100 B.C., possibly in response to the need for greater accountability in trading with foreigners to the north. The need for higher standards of accounting may also have been the driving force behind the conversion of these pictographs into a wedgeshaped (cuneiform) system around 2,700 B.C. by the Akkadians, the Semitic invaders who had established themselves in Mesopotamia by then. Written records in Egypt date back to almost 3,000 B.C., and in China, Crete, and Greece to around 1,500 B.C. or shortly thereafter. The Sumerian, Akkadian and Egyptian break-throughs in human communication are, however, only one evidence of the quickening of human development that marks out the third millennium B.C. This was the period that witnessed in Egypt other remarkable achievements: the introduction of the ﬁrst calendar based on a 365-day year; the building of the Cheops Pyramid in strict conformity with accurate astronomical measurements; the opening of the ﬁrst libraries of papyrus scripts; the establishment of a long-distance vessel route for the importation of African gold and other valuable cargoes; and the installation of a ruthless but relatively eﬃcient bureaucratic elite under a god-king with the absolute power to grant or deny clemency to subjects and foreigners alike (Cottrell, 1966; Cottrell, 1968). In the same millennium, the Mesopotamians or Sumerians, the inventors of writing and accounting, created the world’s ﬁrst poetic literature; issued the ﬁrst metal coins; built the ﬁrst wheeled vehicles; discovered the healing power of mineral springs; became the ﬁrst bakers and brewers; and developed a numerical system based on multiples of 6 and 12 (Wooley, 1965). It was also the period of material and artistic advances in the late neolithic civilizations of China (Reischauer and Fairbank, 1958), India (Bhatia, 1977; Chatterjee, 1958), and other ancient cultures. Some readers may be more familiar with the pre-history of Mesoamerica. According to the best-known theory, the ﬁrst inhabitants of North and Central America arrived from Asia at the end of the last Ice Age some 15,000 years ago, when the most impenetrable ice walls in Alaska and Canada melted suﬃciently to leave an ice-encased “land bridge” between the two continents across the Bering Strait. The most

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recent discoveries in American archeology raise more radical possibilities of much earlier migrations. New theories have been generated by the excavation of ax-heads similar in design to those of Asian origin, which date back further than 15,000 B.C. One new theory envisages an early seafaring people with the capacity to sail southward from Alaska. More startling still is the ﬁnding of even older artifacts in Eastern North and Central America that are of European, not Asian, origin, leaving unanswered how such ancient settlers could have mastered the Atlantic by sail. Less sensational reconstructions of our prehistoric past are rooted in the soil. It is believed that corn (maize) may have been cultivated in Southern Mexico by 3,500 B.C., and possibly even earlier before the establishment of the ﬁrst agricultural economies of the Near East. It seems also that beans and squash contributed to the diet of Mesoamerica. There is certainly some evidence – as well as a cultural predisposition in the lands of that region – to support such beliefs. By 1,200 B.C. there was certainly an advanced Mesoamerican people, the Olmecs, who practiced a hieroglyphic form of writing on bark and deerskin paper, consulted a fairly complex calendar, and used cacao beans as money. But this belief too is inﬂuenced as much by the scientiﬁc reputation of the principal interpreters of the data, such as Michael Coe (1968), as by the existence of incontrovertible facts. In short, our minds should remain open on where and when to look for the “origins of civilization”. Reconstructing the very distant, prehistoric past involves sifting through evidence that cannot pass any probative test. What we believe about our earliest ancestors is governed by the most recent research, as if the new is bound to be more reliable than the old. We tend also to be inﬂuenced by what we want to believe, invoking the authority of the “leading experts”, as if their identity is a matter of common judgment. Some readers will, therefore, see no reason to question the interpretations placed on the most recent, but still scanty, data culled from the archeology of the ancient Near East, or to assume that that well-researched region is the most probable “cradle of civilization”. The seeking out of antiquity is complicated not only by factual uncertainty but also by the diﬃculty of evaluating ancient myths that stand in the place of ancient facts. No line of prehistoric beliefs is more tenacious than the myths of the Great Flood that clearly owe their origin to the melting of the ice-caps at the end of the last Ice Age. World Flood myths have been preserved in the folklore of numerous cultures (Wilson, Ian, 2001). Now, more than ever before, many excavators of the most distant past accept a responsibility to assist in the sifting out of fact and legend from the myths of our early ancestors. Is it possible that the ﬁrst practices of civilized or fair dealing with foreigners originated with much earlier, pre-literate communities? Some anthropologists believe so, while admitting the element of speculation (Numelin, 1950). Archeologists oﬀer physical evidence of the remote past, but the discipline has been criticized by historians for lack of analytical rigor in the interpretation of its data (Dymond, 1974). Yet few ﬁelds of inquiry can compare with contemporary archeology in its ever-widening range of research techniques, far beyond the limitations imposed by the historiographical tradition of documentary evidence (Hayden, 1993; Renfrew and Bahn, 1996).

Primitive Order: Seeking Out Antiquity

The familiar sequence of technological stages in stone-age human development – paleolithic (old stone age), mesolithic (middle stone age), and neolithic (late stone age) – is still generally accepted, though subject to tinkering and variable from culture to culture. Braudel (2001) reminds us that this famous three-age classiﬁcation of our ancestry conceals a fundamental fact. The paleolithic period lasted for one million years or more before it was succeeded by the brief mesolithic and the equally brief neolithic period, and eventually the Bronze Age, which corresponds broadly to the age of written expression. The physical evolution of our most remote predecessors was incredibly slow. The “march to civilization” has consisted mostly of billions of tiny steps. The modern stage of human development, featuring social order and restraint through law, has just been reached. But the New Archeology since the 1960’s has asked diﬀerent and more challenging questions, not least about the workings of the ancient mind (Renfrew and Zubrow, 1994). This emphasis on “cognitive archeology” may eventually result in a clearer understanding of mental and emotional responses to the perennial challenges of the ancient world (Aitken, 1990). As it is, carbon dating and other techniques that allow dating as far back as 60,000 years ago have led to many startling discoveries. “Art” in the form of “non-utilitarian markings” did not, it now seems, start with modern humans as traditionally thought, but is likely to have begun with Homo Erectus 350,000 years ago. “Genuine” art objects such as the female (“Venus”) ﬁgurines, which were found in the 1980s on the Golan Heights and are wholly aesthetic in purpose, may be 230,000 years old. Such display of artistic ﬂair so very far back changes entirely the basis of speculation about the time-frame for human development. Given what is now known about the very long period of development of our ancestors, it appears they may have been seriously underestimated. One scientist has recently challenged our imagination by suggesting that “the hunter-gatherers who painted on cave walls in France during the Ice Age would probably be fully capable of becoming nuclear physicists if they lived in our society today” (Hayden, 1992). By then, it is now supposed, they had the “innate capacity” to read and write, lacking only a reason to develop these skills we associate with the literate civilizations of later date. If so, highly developed skills of communication may have existed long before the appearance of neolithic, food-producing communities 10,000 years ago. Some of most recent studies in brain research oﬀer the possibility that the brain of our earliest ancestors was “over-designed” with more capacity than needed to forage successfully in the heat of the sun. By this reasoning, the decision to stand erect was due to the need to protect the brain from over exposure which involved the storage of excess brain capacity for a period of several million years of pre-human (pre-homo sapiens) development – which would surely be time enough to acquire an “innate capacity” of formidable proportions. Within such a time-frame, we have all been guilty of underestimating the ﬁrst reserve of human sophistication. Jared Diamond (1999) has stressed the variance in the history of human development in his writings on the origins of food production, through the domestication of plant and animal species. He shows that diﬀerent peoples acquired these techniques at diﬀerent times, under the inﬂuence of diﬀerent environmental conditions. The Aboriginal Australians never developed food production techniques at all. The ancient

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Chinese did so independently of other cultures. The ancient Egyptians learned from their neighbors. As he argues convincingly, the when, where, how and why of food production in each culture has had a profound, long-term eﬀect on its present-day capacity to develop steel, make guns, and fall prey to disease. The geographical setting of Eurasia proved a great deal more conducive to the spread of crops and domestic animals than the connecting lands between Mesoamerica and South America. Chiefly for this reason, the spread of “civilization” proceeded more swiftly in Eurasia. New discoveries are admitted by some archeologists to have thrown their understanding of prehistory into “disarray” (Knight and Lomas, 2000). For example, it now appears probable, and not merely possible, that neolithic sites in the British Isles, 1,000 years older than the Cheops Pyramid, were designed and constructed in accordance with the long-term movements of Venus in order to build a time-keeping system accurate to a fraction of a millimeter, to a few seconds over a 40-year period. A civilization capable of such amazing technology was surely also capable of impressive, but unrecorded, feats of creative and even benevolent imagination in such realms as religion, war, trade, and diplomacy, and probably also in law and bureaucracy. If “sophistication” has to be associated with the best urban minds, we might be more “urbane” than we thought. Excavations in 1954 on the west side of the Jordan Valley, near the Dead Sea, found the town of Jericho, once the home of over 2,000 inhabitants, carbon-dated to around 9,500 B.C. (Braudel, 2001). Many scholars, however, continue to credit the Mesopotamian civilization of the third millennium BC with the invention of the city – if not with the building of the ﬁrst towns, then with the assembly of the ﬁrst system of cities or city-states. Even if “sophistication” or “urbanity” – and therefore “civic enlightenment” – can be traced back to earlier, nonMesopotamian towns, the ﬁrst evidences of fair and honorable dealing between established civic polities might indeed be found in and around the Tigris and Euphrates valleys: in such neighboring cities as Eridu, Uruk, Shuruppak, Akkad, Ur, Nippur, Sippar, Ashur, Nineveh, and Babylon. In the words of Gwendolyn Leick (2001), each of these cities “has a place in a reality that has been reduced to an archeological site in Iraq, more or less robbed of its secrets, more or less buried under sand-dunes”. Lacking the New Age appeal of the ancient Egyptians and the mysterious Celts, the Sumerians, Assyrians and Babylonians “with their less spectacular art and crumbling mudbrick ruins, have no comparable place in public imagination”. Yet nowhere else in the third millennium BC was there any comparable opportunity to develop the arts of inter-city trade and diplomacy with some regard for the civic virtues of tolerance, cooperation and reciprocity. We should, nevertheless, remain on guard against the threat of dogma. There may be no “birth of civilization” in any one cradle. Along with Marchack (1972), we might choose to be skeptical about the proliferation of “suddenlies” in the history of early human development. “Science … had suddenly begun with the Greeks … bits of near-science, mathematics and astronomy had suddenly appeared among the Mesopotamians, the Egyptians, the early Chinese, and much later in the Americas. Civilization itself had appeared suddenly with the cuneiform of Mesopotamia and the hieroglyphics of Egypt; agriculture … had apparently begun suddenly some ten thousand years ago within a relatively short period of time”.

Primitive Order: Seeking Out Antiquity

Some records seem to suggest that the establishment of cities, like the development of agriculture, occurred almost simultaneously in several distant and unconnected cultures. These miracles of human development demand an explanation. If we choose to eliminate the hypotheses of alien contact and sheer coincidence, because they strain credulity, then we are left with the less incredible theory of pre-existent knowledge. The existence of earlier stages of civilization lacks artifactual foundation, but awaits conﬁrmation in cognitive archeology and other areas of research that are still enlivened by controversy. It seems reasonable to suppose that no eﬀective system of rules could have preceded the appearance of the ﬁrst cities. But if the earliest rules were made necessary in order to regulate the exchange of products, there might have been a very long period of local primitive order that was mostly limited to the maintenance of rural transactions at the heart of a fairly sophisticated pre-urban civilization. Psycho-linguists are still divided on the role of spoken language in early human development. Some, opposing the behaviorists’ view that nothing could exist in the mind that was not the product of personal experience, argue that spoken language began to evolve very early in prehistory before reaching a point where it became a fundamental human instinct. If this theory is valid, then there was an extremely prolonged evolution of large-brained human ancestors with highly developed powers of oral communication before the advent of literate civilizations. This is in line with recent research in other disciplines supporting the view that human innate capacity has not improved signiﬁcantly over the last 40,000 years. As argued by Pinker (2000), neuroscience, artiﬁcial intelligence, behavioral genetics, and evolutionary psychology all point in a new direction, suggesting that mental, emotional and moral capacity is innate rather than learned or conditioned, coming out of a past beyond the reach of history, and perhaps even beyond that of archeology. Scientiﬁc discoveries have led, for example, to the belief that comets and meteorites colliding with the Earth have had catastrophic eﬀects that changed the course of evolution. The 65 million-year old impact crater on Mexico’s Yucatan Peninsula has convinced many scientists that such a collision caused the sudden disappearance of dinosaurs and most varieties of marine invertebrate species at precisely that time (Knight and Lomas, 2000). In 1995 it was discovered that the Black Sea was a fresh-water lake until almost 7,500 years ago. Other ﬁndings provide further support for the hypothesis of a catastrophic ﬂood in the Middle East that changed the shape of the world’s civilization, laying the basis for the story of the Biblical Flood (Wilson, 2001). The persistence of common myths and legends from peoples all over the planet provides additional indirect evidence of great ﬂoods at diﬀerent times in the very distant past. Over such a long period of planetary transformation, the length of pre-human and early human development might be very much greater than previously suspected. Natural disasters might have contributed to the obliterations of several orders of human-like civilization that were forced to return to a lower level of material existence and social development for many thousands of years. It might also be supposed that, in addition to general intellectual development, extraordinary geniuses lived and

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conveyed ideas markedly sophisticated and enlightened, even by our standards as well as theirs. The Freemasons, as bearers of perhaps the longest living oral tradition in the West today, are reported to maintain belief in extraordinary individual contributions in the pre-literate stages of human development: for example, the invention of the ploughshare (and the development of agriculture) by Tubal-Cain. It is certainly possible, and perhaps likely, that “primitive geniuses” arose above the general level, proving themselves capable of benevolent imagination based on a stirring awareness of the possibility of a common humanity. Such inputs into a concept of universal humanity might have been based on the belief in an ”original” common human language (“Proto-Global”), which some psycho-linguists now suggest may have existed 15,000 years ago before fragmenting into numerous derivative systems. Of these derivative systems of primitive antiquity, it is surely the Egyptian that demands the closest attention as we seek out the earliest evidences of “civilization”. Ancient Egypt is the oldest known African civilization and one of the earliest and greatest of all cultures. It ﬂourished, withered, and re-ﬂourished several times over a period of more than 3,000 years. As a single political entity Egypt came together around 3,100 B.C., through the uniﬁcation of Upper and Lower Egypt and the founding of the royal capital of Memphis by Mena (or Menes). He is reputed to have reigned for 62 years until he was savaged by a hippopotamus. (Animals ﬁgured prominently in the social and political history of Egypt.) The eight kings of the First Dynasty held the realm together with a durable system of central government, which provided the basis for the building of enormous power and wealth. The pharaohs – as the kings came to be called – played a pivotal role from the beginning in religion as well as government. Their semi-divine status and monopoly of bureaucratic authority made a powerful combination: head of the church and head of the state, more than the Pope and the Holy Roman Emperor conjoined. Little is known about the Second Dynasty, except that it gave way to the Third around 2680 B.C., which marks the ﬁrst major period of ancient Egyptian history, that of the “Old Kingdom”. It was the Third to Sixth Dynasties, down to 2181 B.C., that molded the Egyptians’ sense of themselves as an exceptionalist culture, superior to all others because they controlled the pathway to eternal life. Scarcely any record exists of the Seventh to Tenth Dynasty, the “First Intermediate Period” (c. 2181-c. 2040 B.C.), but it appears to have been an era of gradual inﬁltrations and systematic invasions both from the north and the south, when the Memphite order was overthrown ﬁrst by Asian nomads and then by Theban rivals out of Central Africa. The second great era of Egyptian development, the “Middle Kingdom” (c. 2040-c. 1650 B.C.), began with the reuniﬁcation of the state by Mentuhotep II. It produced a succession of eﬀective rulers who took upon themselves the responsibility for maintaining order throughout the universe. By the later Middle Kingdom the burden of such a demanding oﬃce, linking the divine and mortal realms, was seriously acknowledged by rulers as great as Sesostris III (1878-1843 B.C.). Several generations later, the Middle Kingdom disintegrated under a series of weak Thirteenth Dynasty kings. The “Second Intermediate Period” was one of political fragmentation, when the proud Egyptian people were brought under the rule

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of Middle Eastern conquerors who had gained control of the Nile Delta. It may be that the new Hyksos rulers won Egypt without having to resort to war. Yet the captive kingdom represented such an advanced civilization that the new rulers quickly adopted Egyptian customs and manners, ruling as pharaohs, much as the non-Han conquerors of China very much later would become sinicized by their culturally superior subjects. The “New Empire” is the term normally applied to the third stage of Egyptian civilization, dating from the birth of the Eighteenth Dynasty under Ahmose around 1550 B.C. to the end of the Ramesside period in 1069 B.C. Under formidable successors such as Thutmosis III (1479-1425 B.C.) and Amenhotep III (1390-1352 B.C.), Egypt became the greatest empire the world had ever known. It was also the period when Amenhotep III’s son, Akhenaten (1352-1336 B.C.), abandoned the polytheistic tradition which had evolved for over 2,000 years, and replaced it with an early form of monotheism, dominated by Aten, the sun-god, and himself and his queen Nefertiti as lesser deities. Subsequent pharaohs tried to erase all memory of the “heretic” king and to restore the panoply of Egypt’s traditional gods. The “Late New Kingdom”, encompassing the Nineteenth and Twentieth Dynasties (c. 1295-1069 B.C.), was dominated by Ramesses II, the most famous and perhaps greatest of all pharaohs. His long reign (of 67 years) was marked by exceptional military, civic, cultural and architectural accomplishments. Many who followed took on the style and title of Ramesses, but none came close to matching his renown. As the embodiment of ﬁrm but enlightened rule, Ramesses the Great stands as high as any ruler of world history, not least as the ﬁrst great treaty-maker along with Hattasili, king of the Hittites. During the “Third Intermediate Period”, through the Twenty-ﬁrst to Twenty-ﬁfth Dynasties (c. 1069-656 B.C.), Egypt was governed once again by rulers of foreign birth or descent. Never in the succeeding eras of “classical” antiquity would the famous country regain its dominant status as an international power and leader of civilization. To what extent, then, was ancient Egypt a wonder for all posterity, a model of civic order? Despite the eﬀorts of Egyptologists over the last 200 years, we are still captives to theory and erudite conjecture. The most familiar imagery suggests a people constantly reminded of the high purpose of death as the gateway to eternal life. But the ordinary people of Egypt, who could not aﬀord funereal monuments, seem to have lived life more fully than any other people of primitive antiquity. They were the least primitive of the primitives, and their elites, at their best, possessed a higher order of intelligence, skill and civic enlightenment than their counterparts elsewhere in pre-classical history. We shall never know the ancient Egyptians as well as we think we know the Greeks, the Chinese and Indians, who produced the ﬁrst documentary records of the distant past. Egypt will remain mysterious, bound perhaps to be undervalued. For historians of world order, the evidentiary challenges posed by the remoteness of primitive antiquity are of particular diﬃculty. Both lawyers and historians are accustomed to the luxury of documentary sources. In both trades, one may argue with colleagues over the reliability of evidence, but these are merely diﬀerences of inter-

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pretation. Usually there is no shortage of supplementary non-textual sources to provide a reasonably clear picture of the “context”. Questions. As we peer into the darkness of distant cultures, can we expect to see the origins of “transnational” ideas, values, norms, practices and institutions? Are any “elements” of world order already observable? Can we ﬁnd the ﬁrst traces of civic benevolence? How early was order seen to be necessary to counter anarchy? How much can we infer about the earliest forms of law? Where are the origins of humanitarian concern for the weak and the helpless on the battleﬁeld? How did the earliest traders survive the dangers of the road? What responsibilities for the maintenance of public order were taken up by the bureaucracies of the ﬁrst great empires? Was there an “inter-state system” in primitive antiquity? Did these early states make treaties that they accepted as binding? Who were the ﬁrst envoys to enjoy the protection of diplomatic privilege? To answer questions such as these, we should focus more closely on six domains that attracted much attention in the world of primitive antiquity: religion, law, war, trade, bureaucracy, and diplomacy. Ancient Religion As recently as 1933 it was suggested that religion and patriotism together make up the “moral history of mankind” (Bentwich, 1933). Internationalists today would have some diﬃculty with this proposition, not least within the Middle East where these forces are usually seen to belong to the “problem” of peace and security, not to its “solution”. However, it serves as an appropriate starting-point for a brief essay into antiquity, when the distinction between religion and patriotism was barely discernible. The earliest gods were nationalists and warlike: their function was “to assist in war the fortunes of a particular people”. Religious beliefs and practices existed far back in pre-literate stages of human development. The messages contained in cave paintings and carvings are still obscure, and belief in an afterlife is reﬂected in Neanderthal burial mounds. Through the study of myths and symbols, cognitive archeologists are discovering further evidence of the tenacious grip of superstition on the ancient mind, eons before the building of the ﬁrst stone temples of the Egyptians and Sumerians in the fourth millennium B.C. The origins of religion are lost in the folds of antiquity, but the story can be taken up with some conﬁdence in the fourth millennium B.C., when the ﬁrst dynasty of Egypt was established, probably between 3,400 and 3,200 B.C. The culture of the Upper Nile had to be deeply theistic to explain the emergence of the pharaoh as the embodiment of the godhead, whose rule by divine right was absolute and unquestioned. As they came into contact with their southernmost neighbor in the early second millennium B.C., the Mesopotamians, Hittites, and Aegeans looked to Egypt as the leader of civilization. They shared cousin-gods. Assam and Osiris were worshipped in Syria, and Ishtar and Resheﬀ in Egypt (Bentwich, 1959). To the extent that modern international law rests on a tradition of tolerance of diverse beliefs, it might be traced to those early evidences of god-sharing.

Primitive Order: Seeking Out Antiquity

Yet records of the early literate cultures of the third and second millennia B.C. do not present religions as agencies of rational enlightenment. Perhaps the makers and keepers of the ﬁrst records had their own intellectual or political reasons for portraying the keepers of temples in an unfavorable light (Wooley, 1965). The impressions of the earliest religions handed down to us are of belief systems supported – indeed created – by what we judge to be folly and ignorance, oﬀering little prospect of human improvement. Even in the later stages of early antiquity, and indeed thereafter, the gods and goddesses play a mostly malevolent part in the control of human destinies: frequently denying justice, often demanding revenge, usually deaf to reasonable, if self-serving, human entreaties. We may feel our ancestors, as creators of these erratic deities, got the religion they deserved. If humanists existed in those far-oﬀ times, they were probably wise to remain oﬀ the record. Some historians take a more charitable view of early religion, ascribing the pattern of superstitious belief to the local environment. Adda Bozeman (1960), for example, suggests that the major civilizations of the ancient Near East, settled on river banks, developed their sense of the supernatural from the ﬂow patterns of the local stream. The Nile, which rose and fell in a regular tidal rhythm, convinced ancient Egyptians of the existence of benevolent deities, who could be persuaded to protect the chosen people from the adversities of the desert on proof of compliance with the will of the pharaoh, their representative on earth. The god of the life-giving stream had obviously marked out Egypt as the center of the universe. “He was the good shepherd whose special function it was to keep (his) special people in green pastures”. The Tigris and Euphrates, on the other hand, ﬂooded the lands of the Mesopotamians without notice, apparently outside any divine plan, reinforcing the general impression that life was irremediably treacherous. To live successfully with the constant threat of disaster required exceptional intelligence and prodigious social and technical skills (Braudel, 2001). The ingenious Mesopotamians built a society that was in constant turmoil, but it survived and ﬂourished through the vicissitudes of fortune. The later Assyrians, of the ﬁrst millennium B.C., were also victims of the vagaries of nature and had equally dark views of the supernatural. Their “gloomy religious fanaticism” has been oﬀered as the cause of the extreme cruelty for which the Assyrian people became notorious. A prominent scholar has, however, suggested that the cruelty “consists rather in the frankness with which savage punishments are recapitulated than in the punishments themselves” (Smith, “The Age of Ashurbanipal”, 1954). Of all the major religions in today’s world, it is Judaism that purports to have the most ancient origins. Most Jews today still believe in their descent from Abraham, although the actual existence of the ﬁrst patriarch cannot be determined. The Book of Genesis and related scriptures make up the only record. Recent excavations in Greece and Asia Minor seem to substantiate some early accounts such as those of the Flood and other events described in the Old Testament. Yet most scholars believe it is best to treat Genesis as myth, into which Moses, Joshua and other ancestors are also dissolved (Johnson, 2001). For some, the Israelite record does not acquire “a substantial basis of truth” until the age of King Saul around 1000 B.C., when the Biblical text begins to reﬂect the reality described in court records.

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To the extent that Genesis narratives can be dated, it has been argued, however, that Israeli religious history began in the period between the legendary law-giver UrNammu, associated with the late second millennium B.C., and the historical codiﬁer Hammurabi (1128-1686 B.C.). Those who agree to place Abraham in the 19th century B.C. or thereabouts, accept that Judaism, in its early form as a system of religious belief, may precede Hinduism, as we know it today, by 400 years. But the origins of Hinduism are just as hazy. No one can establish factually the matter of seniority. Early religious history is inevitably a combination of fact and legend, a record in the collective mind of adherents to a common faith. Yet surely no faith has been more tenacious than that of the Jews, fortiﬁed over the ages by inter-ethnic strife, expulsion, dispersion, and cultural resentments possibly born of envy. The Jews were most to be envied in the centuries following their successful ﬂight out of slavery in Egypt in the 13th century B.C. After securing control over the strategic land-link between Egypt and Mesopotamia (Canaan or Palestine), they overcame the Philistines in the reign of David, and formed the united Hebrew kingdom of Judah-Israel. Under David and his outrageously extravagant son, Solomon, the Israelites became the strongest and wealthiest people of the Near East (Berry, 1972). In later ages, as their power and aﬄuence declined, the Israelites look back nostalgically, elevating the ﬁgure of Solomon as a sage of mythic proportions. In retrospect, however, the earlier pre-monarchic period of Israeli history seems more impressive. As depicted in the Book of Judges, that was a period when Israelite society underwent a remarkable experiment in meritocracy and democracy, when charismatic, mostly low-born, heroes obtained advancement through their own energy and talents; when all citizens were equal in the eyes of the one-and-only god, and all were under covenant to follow an honorable and universal civic goal (Johnson, 2001). Admittedly some scholars have extracted a less grim view of early religions from the fragments of the distant past. It has been argued that the notion of “good faith”, which was later to provide the ethical foundation of Roman law, is derived from early religion, oﬀering “the only common denominator in relations between disparate cultures” (Bederman, 2001). But god sharing did not prove to be a recipe for systembuilding. The theocratic city-states of Sumeria in the third millennium B.C. shared the same gods, but were nonetheless “destined for incessant rivalry and warfare”. Their conquest by Sargon the Great, founder of the Akkadian Empire around 2,350 B.C., led to the transformation of the Sumerian system of more-or-less equal city-states into a larger and much less coherent conglomeration of colonies and foreign gods. History reveals the dangers inherent in the close bonding between a people and its chosen deity. On the scriptural authority of Genesis, no order of ancient divinity was more intensely nationalistic and territorial in focus than the god of the Israelites. Tragically, such bonding continues to have a negative inﬂuence on the chronic disorders of the Near East and beyond. For many modernists, however, the signiﬁcance of ancient religions for international law is the nexus between religion and morality in primitive antiquity. As long as gods were merely national or local, and as long as they were perceived as intervening in human aﬀairs as participants with human characteristics, there could be no

Primitive Order: Seeking Out Antiquity

one compelling sense of morality for all humans. As the Hebrews became established in Canaan, they brought with them a totally unique religious vision that transcended all existing, polytheistic and local, god-systems. The Hebrews’ exclusive allegiance to Yahweh (Jehovah) – albeit a jealous and territorially focused god – would lead eventually to the triumph of monotheism in the future traditions of Christianity and Islam. As Roberts (1995) notes, the cult of Yahweh was practiced as “the worship of a universal god, just and merciful, stern to punish sin but ready to welcome the sinner who repented. This was the climax of religious culture in the Near East, a point after which religion could be separated from locality and tribe …They announced that all men were equal in the sight of God, that kings might not simply do what they would; they proclaimed a moral code which was a given fact, independent of human authority. Thus the preaching of adherence to a moral law which Israel believed was godgiven became also a basis for a criticism of existing political power”. Early religion has been credited with the introduction of oaths to secure the most solemn of pledges: the keeping of commercial contracts and of pacts between neighboring cities (Bederman, 1991). Perhaps the earliest record of divine retribution was the pestilential plague that overtook the Kingdom of Mursilis in the late 14th century B.C., in punishment for breach of a treaty of alliance between the erring father of Mursilis, King Hattusili of the Hittites, and the famous Pharaoh Ramesses II of Egypt. The violation deserving such punishment, it might be supposed, lay not in the sanctity of treaties but in the sacred character of the oaths exchanged. Reﬂections. It is asking much of most lawyers to accept ancient religion as the principal source of law. Outside the framework of a few theocratic cultures, the discipline of modern law is grounded ﬁrmly in rationality. At the time of writing, several Islamic systems of rule re challenging the majority view that law and religion should be kept apart on totally distinct orders of legitimacy. In world law speciﬁcally, the secular tradition has dominated the ﬁeld of theory for hundreds of years. It might be more comforting to begin the search for origins in the legislation of King Hammurabi of Babylon (2123-2081 B.C.), who thought suﬃciently well of law to have it inscribed in tablets of stone. Alternatively, we might prefer to begin with Gilgamesh of Uruk, who has been depicted in legend as the ﬁrst enlightened ruler-hero to have striven to improve the human condition, only to be defeated by the “iron laws of the gods”. The Epic of Gilgamesh in cuneiform may have fostered the pessimistic fatalism that some scholars have discerned in Sumerian religion. Withdrawal to the temple from the cruelties and disasters of the material world could not have inspired early religious elites to promote the cause of humanity through an enlightened system of laws. Ancient Law It has often been speculated that law began with custom, and that custom, almost everywhere, was rooted in religion. But it seems unlikely that the “original source” of formal law will ever be found (Cliteur, 2003). So the search for “incipient law” begins

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with theory. It is the spirit of speculation that takes us back beyond the invention of writing to a time when the object of the quest is hazily conceived. It might be supposed that law, as an “oﬃcial” phenomenon, appeared with the emergence of “early state society”. Claessen and Skalnik (1978) have suggested a deﬁnition of the “early state”: “a three-tier (national, regional, local level) socio-political organization for the regulation of social relations in a complex stratiﬁed society divided into at least two basic strata or emergent social classes – viz., the rulers and the ruled – whose relations are characterized by the dominance of the former and the obligation to pay tax (in whatever form) of the latter, legitimized by a common ideology, of which reciprocity is the basic principle”. As soon as it is oﬀered, however, the deﬁnition needs tailoring to ﬁt what must be a wide variety of early social contexts. The “common ideology” may not always have been commonly conceived. Legitimacy is a slippery concept, and must have been frequently challenged in the face of insuﬃcient food and other necessities. Moreover, for reasons that cannot be known, many early societies never evolved to the level of complexity, and yet they may have had a workable mode of “unoﬃcial” or informal law for fairly large groups below the level of a state (Claessen, 2003). While many early societies do appear to have had some form or degree of centralized authority, most were made up of “small, face-to-face, acephalous communities, which [held] together without the apparatus of the state”, perhaps lacking “control mechanisms” altogether (Roberts, Simon, 1979). Yet in our conception of any “society”, there must be “some patterns of habitual conduct followed by the members, providing a basis upon which one member will be able to predict how another is likely to behave under given circumstances and how his own actions will be received, even if a “normative base for these regularities is not clearly conceptualized or articulated”. For well over a century, anthropologists have studied tribal (“stateless”) societies to discover how they maintained order and handled disputes. Earlier generalizations by pioneering historians of early law such as Sir Henry Maine (1909) have been refuted by the accumulating evidence of diversity (Malinowski, 1926; Llewellyn and Hoebel, 1944). The most famously discredited theory about early legal development is Maine’s hypothesis that primitive or tribal law based on “status” gives way invariably, sooner or later, to advanced law based on “contract”. More recently, many writers have challenged familiar dichotomies. For example, Pospisil (1971) has seen “no basic qualitative diﬀerence between tribal (primitive) and civilized law. The important attributes, functions and processes of law are present in both of these artiﬁcial segregates”. Inﬂuenced by the “realists” of American anthropology, he and others see “law”, at every level of social development, as manifesting itself in the form of decisions made by an authority communally recognized as legitimate. Field work is a constant challenge to legal anthropologists, but it has “long since ceased to be a larking adventure in prospecting … The gold-panning techniques of the past century have given way to a systematic dredging, which sifts out the pay dust but only rarely excites the operator by turning up a pure nugget” (Hoebel, 1961). In the case of “early state societies” – those that seem to conform with a contemporary anthropological deﬁnition – laws that eventually appeared in written form must have undergone a long process of evolution as unwritten “customary law” reﬂective

Primitive Order: Seeking Out Antiquity

of growing social complexity and “sophistication”. Roscoe Pound (1959) suggested that “law in books” was preceded by “law in action”. Equally famously, Eugen Ehrlich (1936) oﬀered the concept of early law as “living law”. Another approach to primitive law favored by contemporary scholars is the construct of “minimal justice”. All three concepts are eﬀorts to come to grips with the earliest traceable customs that may have been subject to some kind of oﬃcial sanction but substantively diﬃcult to distinguish from morality. To qualify as “law”, oﬃcial morality had to be institutionalized through the agency of governmental or religious authorities for purposes of recording, administration, or enforcement (Witteveen, 2003). The earliest example of written law is the stele discovered in 1901 by French archeologists excavating the site of the ancient Elamite city of Susa in Southern Mesopotamia. The oldest tablets are in imperfect condition, making analysis highly precarious (Driver and Miles, 1935). So the “Old Assyrian Laws” are still a matter for speculation. The stele is believed to date back at least to 1,950 B.C., the age of the so-called “Middle Assyrian Laws”, though it appears to have been taken to Susa much later as a spoil of war in the 12th century B.C. The laws inscribed on the stele may have emerged in unwritten form around 2,000 B.C. or earlier. The script used may have been invented shortly before 2,000 B.C. “to serve the bureaucratic and managerial needs of a rapidly expanding, sophisticated, urbanizing, culture in a densely populated country” (Veenhof, 2003). The oldest of these inscriptions seem to refer to land conveyances of some kind. Veenhof suggests that they reﬂect a process of legal development from as early as 3,200 B.C. However, they appear to be public administrative records of completed transactions rather than private contracts between the parties. If so, they might represent the beginning of an early state rather than the beginning of incipient law in a prescriptive sense. Other scholars suggest that the oldest living tradition of written law is Indian. Kolﬀ (2003) argues that the legal system of ancient India proved immune from the constant instability and frequent collapse of political authority that was a conspicuous feature of that civilization. If this is an accurate perception, then the law of the land (dharma) must have been derived from an independent source of authority, a spiritual source of legitimacy that was unaﬀected by “the ﬁckle course of political events, originating in a place beyond the power of kings”. Here too we are ﬂoundering in the mists of antiquity. The earliest customs of ancient India are envisaged as a mixture of divine revelations (scruti) and remembered traditions (smrti). The “memory” was provided by brahmin guardians, who were ﬁxed with the sacred duty to transmit the customs through interpretations inscribed in guidebooks (sutras), including the rights and duties of the elite (the dharma-sutras). Kolﬀ suggests that by the 6th century B.C. a legal discipline had emerged in the form of oﬃcial texts (dharma-shastras). Most specialists in early Indian law emphasize the ﬂexibility inherent in that system, and contrast it with the more precise and more famous, but notoriously inﬂexible, legal system of ancient Rome. It is highly uncertain how far back the Chinese began to develop their written law. The legend that the Emperor Huang Ti of the 3rd millennium B.C. issued orders for the regulation of his subjects in 2697 BC dies hard, but it is still impossible to verify.

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So also is the belief that the Emperor Yao (2357-2255) promulgated the “ﬁve corporal punishments”. Research by Creel (1980) suggests that the Chou, who conquered the Shang in 1122 B.C., inherited a certain amount of prescribed law despite the apparent absence of Shang legal institutions. Bronze inscriptions of the Western Chou period (1122-771 B.C.) oﬀer a picture of an emergent legal system based chieﬂy on tradition but increasingly available in written form, for the Chou were “addicted to the making of records”. At that time the king was not the remote ﬁgure of authority that his Chinese imperial successors became. There is evidence that Chou law was seen principally as the “constitutional” framework for government administration, within which the king personally accepted responsibility for the administration of justice. The feudal lords of that era took their disputes to the king for resolution in what appears to have been an arbitral process. The 7th and 6th centuries B.C. were the era when the city-state (polis) ﬁrst appeared in ancient Greece. The existence of a state-like structure provided the political context for a lawgiver such as Drakon (Draco) in the 7th century B.C.. The code in his name, normally dated to 621, may have had predecessors, but probably not so comprehensive (Vliet, 2003). It has been speculated that the code was a revision of an earlier version prompted by some kind of social or political crisis. Its extremely harsh provisions, punishing trivial oﬀenses with death (Gagarin, 1981), are even more severe than the famous penal provisions of early codiﬁed Chinese law, enabling us to express our present-day sense of injustice in face of “draconian” punishment. Drakon may not have existed in human form, but there is no doubt about the existence of Solon (c. 640- c. 561 B.C.). Son of a nobleman, Solon lived through politically troubled times, when certain aristocratic families of Athens (eupatrids) were seeking oligarchic control over the organs of the state. The publication of Drakon’s Code in 621 B.C. had been intended to deprive these families of their quasi-monopolistic knowledge of law. The promulgation was motivated by the social need for “transparency”, in modern terminology. Solon was clearly a great ﬁgure in the early history of legal development, but scholars have diﬀered sharply on how much reliance should be placed on the evidence presented by later scholars in the classical era, such as Aristotle and Plutarch, who had their own political reasons for the coloration they provided to the life and career of the ﬁrst known law reformer. On the other hand, it is possible they had access to more information about the content of Solon’s laws than we now possess. Not the least of Solon’s reforms was his prohibition of enslavement for debt, which projected Athens into the vanguard of the Greek civil rights tradition. Economically too, Solon was a liberal reformist, encouraging those who could not make a living oﬀ the land to learn a craft or trade. To create a more entrepreneurial economy, he oﬀered Athenian citizenship to those craftsmen willing to settle permanently in Attica. He was perhaps one of the ﬁrst in antiquity to recognize that, in conditions of permanent food scarcity, imported supplies can be paid for only by exports. In his economic reforms, however, Solon was not entirely successful. The same must be said about his constitutional reforms, which were designed to maintain a balance between democracy and oligarchy. To loosen the control of power held by the chief magistrates, he introduced a new system of social classiﬁcation based on the

Primitive Order: Seeking Out Antiquity

amount of produce attributable to each freeman. The highest oﬃces were open only to members of the two wealthiest classes; minor positions were open to members of the third class; and the day laborers (thetes) could hold no oﬃce, but were guaranteed membership of the popular assembly (ecclesia). It was a limited experiment in democracy structured into the constitutional system. Like most compromises, it failed to satisfy the extremists. Yet, it has been suggested, the era of Solon marked the origin of the concept of eunomia: a society characterized by the presence of good law and good order (Vliet, 2003): the ﬁrst extrapolation of civic enlightenment (Allott, 1990). It is extremely diﬃcult to assess the ancient Egyptian contribution to the development of early law. Even for the ﬁrst millennium B.C., no legal codes or written statutes have survived. A study of documents recording cattle transactions in that era suggest that the legal system of Egypt by then had become consistent and coherent, but the extent of Roman inﬂuence on it is still a matter of conjecture (Cruz-Uribe, 1985). Reﬂections. It is possible to take an exceedingly narrow view of law, so narrow indeed as to exclude international law. For example, Salmond, the author of a wellknown 19th century textbook on jurisprudence, deﬁned English law as “nothing but the body of rules recognized and applied by English courts in the administration of justice”, and the editor of the 12th edition points out that this narrow deﬁnition serves a number of jurisprudential purposes (Fitzgerald, 1966). But a narrow deﬁnition, like a wide-meshed net, limits the catch that can be landed. Those who have learned humility, like Max Radin (1938), have “given over the attempt to deﬁne law”. International law has often been compared with systems of primitive law because of the incompleteness of their institutions, but the similarities are heavily outweighed by the diﬀerences. Enforcement of international law is often a problem, even within today’s highly developed system of international institutions, but enforcement was not necessarily, or normally, a serious defect in primitive law societies below the level of the state. Substantively, international law today is almost inﬁnitely complex and extremely sophisticated, in some ways even more so than the most advanced legal systems at the national (“municipal”) level. In taking on the purposes associated with all the world’s major legal systems, international law raises expectations of delivery that cannot always be met, but that is scarcely a characteristic of primitive law. Ancient Warfare Aggression and conﬂict have always been part of the human condition. Our ancestors were almost certainly killing one another two million years ago. The 5,500 years of recorded history have been a nearly continuous chronicle of institutionalized conﬂict (Watkins, 1989). One writer has suggested that less than 230 years of human history could be characterized as years of peace (Leckie, 1970). Not war, but peace, has been the aberration. Man – the male human – is a ﬁghting animal (Ehrenreich, 1997). Apparently, female warriors have been a relatively rare phenomenon (Davie, 1929). As far back as the third millennium B.C., the evidence suggests that war was seen to be a natural state, not least hostility between nomadic and sedentary peoples.

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The earliest records of merchants reveal the “lawlessness of the wilderness”. Unfortunately, ancient warfare – like every other aspect of primitive society – is closely linked with ancient religion. “When the wrath of the gods was not directly involved, the gods, by oracular means, could sanction war … [Indeed] every step of a military operation required divine sanction … Moreover, the gods shared in the proﬁts. A part of the booty, trophies and tribute went to the temples” (Ziskind, 1967). Generally, wars have been seen, at least after the fact, as “regrettable necessities” – demonstrating the force of rationalization, whether for glory, proﬁt or revenge. Some scholars have contended that war was “invented” in pre-dynastic Egypt along with agriculture, social classes, and human sacriﬁces. Most doubt that any golden age of peace existed at any stage of history, or any “general iron age of war”. Perhaps neither the Rousseauan nor the Hobbesian view of “natural man” is supportable (Wright, 1965). We have been versatile in inventing reasons for war: subjugation, land, plunder, trophies, defence, and revenge (Otterbein, 1985). Through legend we can see only too clearly the lethal nature of inter-group conﬂicts. The story of Cain (the shepherd) and Abel (the tiller of soil) may be read as an allegory that dramatizes the age-old conﬂict between nomads and settlers (Leckie, 1970). It is disheartening to observe the human obsession with weapons. In primitive rural society, hunting weapons were necessary for the achievement of mastery over wild animals and the maintenance of food supplies. Stone weapons have been found from the Upper Paleolithic period, but whether for hunting or ﬁghting is not known (Watkins, 1989). With the establishment of agriculture, animal husbandry, urban settlements, and inter-municipal trade, weapons became less essential for human survival, but, over the span of ﬁve millennia since then, the development of weapons for ﬁghting human enemies has remained a constant of world history. Probably our animal origins explain our excessive concern with territory and territorial sovereignty, and our readiness to commit aggression, with or without the comfort of divine justiﬁcation (Davie, 1929). Time after time we encounter early records that depict neighbors as natural enemies, even in the absence of competition for scarce resources. As human populations swelled, cities and towns grew up, replacing small, brief, but often lethal, skirmishes with full-scale, prolonged battles between armies equipped with totally destructive force. Those who wielded the sharpest weapons prevailed, and those who commanded the winning armies acquired the power to shape the world around them. In the ﬁrst millennium B.C. the Assyrians prevailed due to the superiority of their iron weapons, and to their iron will to conquer. Few places seem to have escaped the blight of warrior cultures. The image of the “peaceful savage” does not, unfortunately, seem to convey the whole reality of stone-age society. At the worst extreme, there have been warrior chiefs in more recent stages of history, such as the dreaded Mongol conquerors, who seem to have gloried in gore and boasted of their savagery. But surely not all victors of antiquity were totally barbarous. Since the beginning of records, we have had documents of one sort of another that purported to show the display of honor or mercy on the ﬁeld of combat. Admittedly, it has always been the prerogative of conquerors to commemorate their victories in their own favor. It might be supposed that the victors of primitive antiquity were not

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strangers to the art of manipulation, to appease the more benevolent gods, if not to deceive posterity. On the other hand, legend has passed down stories of magnanimity and decency among famous warriors, suggesting that the earliest warrior tribes and peoples may have developed a grudging respect for one another in times of peace. In certain early civilizations, a rough, unwritten code of military honor might have emerged from distant battleﬁelds, at least among the chiefs and captains with most reason to hope for the beneﬁts of reciprocity. Some of the later epics of warfare, not least that of Homer’s Troy, record honor as well as shame in the treatment of the enemy. Yet there is only slim evidence of such virtue before the birth of Hellene civilization in the West and the Age of Confucian Enlightenment in the East, which virtually coincided in the 8th century B.C. Despite the absence of accords governing the conduct of war in those early times, some eﬀorts were apparently made to reduce unnecessary slaughter. In the case of siege warfare, the attackers often resorted to inducement rather than coercion to persuade the defenders to capitulate on lenient terms, oﬀering a corvee labor regime for the besieged city in lieu of killing and plundering. Although the military advantage usually lay with the defenders, before the invention of siege weapons, the city under attack would often oﬀer to negotiate a peace settlement or resort to bribery. The use of individual combat between designated champions sometimes replaced the use of armies, except when the match resulted in the death of both champions. The explanation may reside in strategic rather than humanitarian considerations: in the conservation of warrior resources to ensure the sustainability of warfare. Because the gods themselves were seen to be engaged in human wars, the sacred character of temples and shrines did not normally shield them from the ravages of conquest. Only the Hittites, it seems, were disposed to leave the temples of foreign gods untouched (Ziskind, 1968). In assessing the values and sentiments of early barbaric times, we should not overlook the distortiveness of the record. Mostly we are at the mercy of inscriptions, having little, if any, knowledge of the inscriber, or of the politics behind the text. The inscriptions commemorating Ashurbanipal (669-626 B.C.), the famous Assyrian king, emphasize his military deeds, his betrayal by his brother Shamash–shum-ukin in 652 B.C., and the vengeance he exacted on the city of Babylon, where Shamash had been installed as king (Smith, “Ashurbanipal and the Fall of Assyria”, 1954). But extraneous evidence shows Ashurbanipal in a favorable light as the greatest collector of books in primitive antiquity, the builder of two magniﬁcent libraries at Nineveh, the ﬁrst major repository of knowledge in the Western world, before the great library of Alexandria of the later classical era (Smith, “The Age of Ashurbanipal”, 1954). Somewhat later, Nebuchadrezzar (? – 562 B.C.) is depicted as a vigorous commander and brilliant statesman, but posterity knows him from more reliable sources as a great architect, who personally supervised the design and construction of superb new palaces and temples for Babylon, including the wondrous Hanging Gardens installed to please his Medean queen (Thompson, 1954).

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Reﬂections. Given the extent of divine involvement in early warfare, are we bound to conclude that all wars of early antiquity were perceived as “holy”, and therefore as “just”? Perhaps today these questions are more important than the answers that might be suggested by scholars of antiquity. Certainly most paciﬁsts of the present era would take the opposite tack that all wars are “unholy” and “unjust’. Since the establishment of the UN Charter as the “sacred text” of the world community, international law has declared war to be illegal. War may be legal in self-defense, and a state sensing a serious threat to its security may engage in war if it appears the most eﬀective means of warding oﬀ an attack on its territory or citizens abroad. What the ancients would have made of modern legal sophistication challenges our imagination. It would be left to the Greeks of classical antiquity to provide the ﬁrst clear record of a culture’s conception of the laws of war, and, arguably, to the Romans to display in practice a commitment to moral superiority that generally placed them above their enemies. Ancient Trade In today’s world, few domains are more ﬁrmly associated with world law, or at least with international agreements, than that of trade. The realm of commerce is perceived as “borderless”, now more than ever reinforced by forces contributing to the globalization of human society. How far back can we detect the beginnings of intercommunal trade and the ﬁrst recognition of its value to society? The economic activity of our ancestors in the early paleolithic period consisted of hunting and ﬁshing. Cave drawing and carvings suggest that ancient art preceded ancient trade, but at some unknown point in time shells valued as jewelry were being brought one hundred miles or more from their place of sea-bed manufacture: for example, shells found in the Pyrenees came both from the Atlantic and from the Mediterranean (Heichelheim, 1985). It is interesting to speculate that “foreign trade” may have begun with human vanity, perhaps with the yearning for sex appeal! The temptation is to accept the orthodox view that non-local trade based on developed “domestic economies” could not have begun before the creation of permanent revenue through the inventing of hoe agriculture in Southeast Asia and perhaps simultaneously in Central Asia, East Africa and Peru. Cultivation of crops created the possibility of food surpluses, and permitted the specialization of skills, facilitated the growth of farming villages, and laid the foundation for local barter economies. Eventually, some of these villages must have grown into fortiﬁed towns, presumably to protect the new economies, and the promise of greater wealth must have led to the need for cities as commercial as well as military and religious centers. It cannot be known when this trade-related process of urbanization began, but it was surely long before the appearance of the Sumerian city-states, perhaps in the ﬁrst food-producing stage of the “neolithic revolution” of the Nile Valley and the Middle East in the ﬁfth millennium B.C. (Jones, 1967; Simkin 1968). Indeed some scholars argue that certain nomadic tribes traded copper and tin with one another in the Bronze Age.

Primitive Order: Seeking Out Antiquity

Scholars continue to battle over the prehistoric origins of non-local trade. New research keeps adding evidence in favor of the three avenues of expansion: roads, rivers, and the sea. Perhaps the earliest of all man-made tracks were paths to hunting grounds, but it is not easy to determine when neolithic track ways were ﬁrst used for trade. The principle of the wheel was known to the Sumerians as early as 3000 B.C., but wheeled vehicles may not have become a regular feature of transportation until much later (Hindley, 1971). Since very early times, navigable rivers, such as the Nile and the Euphrates, have been crucial to long-range trading. Others, like the Tigris, were too swift, and could be navigated only downstream (Levy, 1967). It is chieﬂy the sea, however, that has been used for the spread of inter-cultural commerce (Oliver and others, 2000). Although it is not possible to trace the beginnings of maritime transportation, archeological ﬁndings of Mediterranean pottery in Malta suggest that this kind of trade crossed the 60-mile sea area between Sicily and Malta as early as the fourth millennium B.C. (Bradford, 1971). Indeed it is possible that prehistoric maritime trade was the cause, and not merely the result, of urban settlement in the Indus valley (Lamberg-Karlovsky, 1972). Levy believes that the oldest major trade route was the Red Sea and its extension into the Persian Gulf. Vessels were certainly venturing into the Mediterranean by 2,000 B.C., but probably much earlier. The Egyptians of that era had conceived the idea of digging a canal through the isthmus of Suez. There is no doubt that Egypt and Mesopotamia were the economic powers of the late third millennium, and had the best opportunity to lay down trade routes with the Orient (Braudel,2001). By then long-distance sea-based trading between prehistoric India and ancient Mesopotamia had begun, evidenced by seals excavated on the Harappan sites of the later period between 2,500 and 1,750 B.C. These merchant family seals, dated to c. 2,300 B.C., are of the kind associated with the Indus River civilization of that era. Almost certainly it was cotton, the staple Indian export, that was brought to the Near East at that time (Mathew, 1995). Light cargoes could be borne overland by sheep or goats, but domesticated horses were not available for heavy work before 2,000 B.C., and camels were even more recent newcomers to the tasks of commercial transportation (Jones, 1967). Evidences of even more ancient trade patterns are becoming available through recent discoveries by underwater archeology. Some of these ﬁndings are quite astounding. Research in the 1990’s has suggested the existence of Southeast Asian rafts built with simple plant materials as early as 40,000 B.C., and of primitive craft in Scandinavia certainly in neolithic times. Astonishingly, the most recent excavations of human remains analyzed with the most modern genetic technologies, seem to point to generations of European settlers in the American hemisphere as early as 30,000 B.C. The “cunning arts” of tunny-ﬁshing in the Mediterranean with natural-ﬁber nets are clearly reproduced in cave drawings dated back to 8,000 B.C. It can be imagined that the ﬁshermen of that age followed the gulls on the horizons. Tools capable of building small boats provide indirect evidence of a sea-borne trade in very early prehistoric times, but primitive craft could not have survived as wrecks under shallow coastal waters over such a long stretch of time. So the earliest discoveries of nautical archeol-

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ogy are not the wooden vessels themselves, but the most durable of the cargoes they carried: pottery and a wide variety of metal objects, such as weapons, tools, and other strategic materials of the Bronze Age. From archeological and other evidence, it seems clear that the ﬁsherman/sailor appeared on the scene before the shepherd or farmer. A simple watercraft is by far the most eﬃcient means for moving heavy cargoes, and therefore the invention of the ﬁrst long-distance vessel was also the ﬁrst step in the development of long-distance trade. It is possible that the Egyptians invented the sail, perhaps in the sixth millennium B.C., and that it was they who ﬁrst tested out sailing in the stormy waters of the Mediterranean (Gold, 1981). But, although skilful navigators of their great river, they Egyptians remained reluctant to venture far beyond the estuary of the Nile. Their ships had no keel or ribs, and could easily be splintered at sea. To a large extent they relied on their sea-faring neighbors to bring exotic goods to their shore: ﬁrst the Syrians, and then the Phoenicians. The oil of Lebanese cedar was used along with spices for embalming mummies, and the timber became crucial for building sturdier vessels (Topham-Meekings, 1976). The present evidence suggests that truly long-distance trading was pioneered by professional sailor-merchants of Mesopotamia in the second millennium B.C. Babylon was probably the world’s ﬁrst commercial metropolis (Levy, 1987). By far the most illustrious of these trade pioneers of that age were the Phoenicians, who apparently originated in settlements around the Persian Gulf, where they ﬁrst developed their extraordinary skills in boat-building and navigation, before they were driven out by warriors (Millard, 2000). After crossing the hinterland, they re-settled in the Lebanon between the mountains and the sea and founded the coastal cities of Sidon and Tyre. As early as 1,500 B.C. the Phoenicians had mastered the navigation of the Mediterranean at the highest level of seamanship ever attained in that region, but their dominance in merchant shipping was not achieved until the collapse of Minoan sea-power, based on the island of Crete, at the hands of the Carian invaders from the North. By the end of the 12th century B.C. the Phoenicians had become the skill center of the world’s great trading system, linking the civilizations of ancient India and China with the leading commercial cities of the Mediterranean and the Middle East: Nineveh, Aleppo, Tripoli, Babylon, Damascus, Memphis and Jerusalem (DeSmogyi, 1968). Perhaps we should not romanticize those sturdy sailors: the Phoenicians did not shrink from the practice of piracy and slave-mongering, at least as depicted in the Odyssey (Levy, 1962). By the 9th century B.C. the Phoenicians had become the undisputed masters of the sea, much as the Dutch were to achieve a similar status in the ﬁrst half of the 17th century A.D. It is suggested, however, that the Phoenicians, not unlike the Dutch two-and-a-half millennia later, suﬀered from the smallness of their population, which forced them to engage foreigners to maintain their overseas settlements around the Mediterranean. The Greeks proved their adeptness in taking advantage of the navigational and commercial skills imparted by their Phoenician mentors, who proved no match in the 8th century B.C. for their pupils’ stealth in the geopolitics of the Eastern Mediterranean. Eventually the Phoenician colonies west of Malta were taken over

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by the Carthaginians, who superseded the Minoans and became the greatest naval power of classical antiquity (de Smogyi, 1968). Ancient China was also an important early trading culture, although slower than the Near East in developing its writing system, and in moving into its Iron Age. Indeed it was not until the second half of the second millennium B.C. that urban principalities grew up on the banks of the Huang Ho (Yellow River) and its tributaries, and not until the ﬁrst millennium B.C. that rapid economic development took place with the overthrow of the Shang by the Chou charioteers of the Wei Valley (Roberts, 1995). As the chariots of war yielded to the caravans of trade, China in the Chou dynasty (1122-255 B.C.) slowly emerged as the pre-eminent civilization of the East, surpassing the technology and trade of India and Southeast Asia, but still largely dependent on the Phoenicians and other foreign traders for their export of silks to the Near East (Simkin, 1968). Reﬂections. By the end of primitive antiquity in the Mediterranean, permanent overland and oceanic trade routes had become established within the region, and eastward to Ancient India and China due to the commercial virtuosity of the Arabs and Phoenicians. But the idea of common laws built on widely shared commercial customs would have to wait for the next age of inter-communal relations. There were no shared conceptions among prehistoric rulers of any need to stimulate or regulate trade, nor was there yet any permanent “merchant community” with a common interest to protect. On the other hand, archeological research has uncovered evidence of very early foreign trade settlements in the Middle East, perhaps as early as 3,200 B.C. (Weiss and Young, 1975). These were multi-cultural communities of traders who chose to live together as expatriates in major commercial cities. Some scholars believe that this pattern had become established almost everywhere by the ﬁrst millennium B.C. : the ﬁrst visible manifestation of the “international community”. Clay tablets covered with inscriptions prove that much earlier, around 2000 B.C., an Assyrian trade settlement conducted operations in Cappadocia in Anatolia (now Turkey). Over the next millennium other nodes sprang up and began to establish formal or informal relationships with one another, constituting a “trade diaspora” within the region. Ancient trade was carried out mostly as a private enterprise, but the local ruler himself was often a trader, who found it advantageous to cooperate with the foreign merchants in his city and those associated with it indirectly through the regional diaspora. It was probably in that relationship that the regulation of foreign trade has its origin. According to Curtin (1984), Hammurabi used the bilingual foreign traders in his city as cross-cultural brokers, who facilitated long-range trade with markets too distant and too exotic for direct trading, usually by means of coordinated relay Ancient Bureaucracy Public administration may not be the most exciting sector of human activity, but it is certainly the oldest professional elite discoverable in antiquity. In order to maintain a system of order, early rulers found it necessary to delegate at least some of their

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more routine functions and responsibilities (Warwick, 1974). In tribal societies, the ﬁrst bureaucrats were usually members of the ruler’s household and their more reliable “myrmidons” (named after the Assyrian loyalists who fought under Achilles in the Trojan War). As the art of administration became more specialized and more challenging, it became common to recruit and train an occupational group endowed with the skills most useful for dealing with the public business. Eventually the public oﬃcials became a privileged professional elite possessing a battery of administrative techniques, and often a special brand of political cunning. In early societies where government and religion were intertwined, the highest ranking oﬃcial was usually a shaman endowed with special magic and authority that equipped him to serve as an inﬂuential policy adviser. The earliest rock-paintings of over 12,000 years ago depict a society in Northern Spain that seems to have developed advanced organizational as well as pictorial and technical capabilities (Hauser, 1951). The existence of very ancient standing-stones in many cultural regions proves the ubiquity of rather sophisticated administrative systems in prehistoric times, systems capable of organizing and supervising technically elaborate projects. It may be chieﬂy due to the lack of comparable administrative talents that other early civilizations of the fourth millennium B.C. failed to match the sustained creativity of the Sumerians in the silting estuaries of the Tigris and Euphrates (Gladden, 1972). By the third millennium B.C., it is clear, the Sumerians and their Mesopotamian successors had created an eﬀective and stable system of city-state government, dedicated to the will of their gods under the rule of their local priestprince (Wooley, 1965). Inscriptions of that era incorporate the names of high-ranked oﬃcials, including those of no less than eighty literate bureaucrats found at the site of the ancient Mesopotamian city of Shuruppak (Leick, 2001). The Amorite king Hammurabi of the 18th century B.C., was famous as a law-giver, but he was also one of the great administrators of primitive antiquity. The ﬁrst hero of legal history was the creator of the ﬁrst securalized bureaucracy. Within his system, oﬃcials were remunerated by salary for their expert services in bookkeeping, the regulation of trade, banking and transportation, and the administration of property and criminal law. After the invention of writing, the bureaucrats became the keepers of daily records: the intellectuals of the realm. Breasted (1914) has provided a strikingly modern picture of Hammurabi engaged in the daily routine of oﬃcial business, surrounded by tablet-letters enclosed in thin clay envelopes, dictating correspondence to his personal aide. It is unclear how much knowledge the Sumerians and Egyptians had of one another, but there are many similarities between their systems of bureaucracy. In the third millennium B.C. the invention of papyrus enabled the Egyptians to cultivate a group of scribes who would become indispensable to the record-keeping function of public oﬃcials. The road to literacy could not have been easy. Aspiring Egyptian scribes had to memorize 800 signs and the sounds and ideas associated with each. Since hieroglyphs were decorative as well as practical in purpose, the signs had to be simpliﬁed. The training was rigorous, but the rewards were great, as in China (Murnane, 1983). The scribes continued to maintain order in Egyptian society even during the periods when overall political authority passed temporarily into foreign hands.

Primitive Order: Seeking Out Antiquity

Typically, in times of stability, the pharaoh exercised absolute power in a civilization that made very little distinction between church and state. The ruler, as the agent of the sun god, was entitled to unwavering obedience by all his subjects, but his priestly-bureaucratic assistants earned generous earthly beneﬁts from their crucial participation in the worship-loyalty tradition. By the time of the Old Kingdom, which lasted down to 2180 B.C., a complex administrative system had been built up to relieve the pharaoh of insupportable burdens of state. Even under the conditions of strict theocracy, the ruler was never entirely safe from the intrigues of his own ofﬁcials, who represented a formidable conjunction of spiritual and temporal authority, like the pharaoh himself. It is also unclear what contacts there were between the early Indian systems of civilization based in the Indus and Ganges valleys and the successive Mesopotamian civilizations of the Tigris and Euphrates. The authority of the early Indian rulers in the third millennium B.C. probably also had religious origins, but it seems there might have been a more liberal way of life in early India than normally associated with Western theocracies. The existence of a bureaucratic presence is inferred from what has been unearthed from the sites of the Early Harappan cities from the late fourth millennium B.C. to 2600 B.C. Those early urban settlements reveal an advanced system of civic planning and organization that followed a grid pattern of roads, drains and other public facilities, but there is no archeological evidence of temples or other religious buildings, and very little is known about the selection and training of the oﬃcials (Piggott, 1950). The decline of the Harappan cities has been attributed to environmental changes, but the absence of a strong bureaucratic tradition could have been a contributory factor before the emergence of Indian chiefdoms and kingdoms between 1200 and 600 B.C., when more extensive realms were brought under the governance of rudimentary systems of public administration (Thapar, 2002). No bureaucratic tradition is more renowned than that of Chinese antiquity, but the earliest prehistoric accounts of the preliterate system before 1500 B.C. are diﬃcult to separate from legend. It seems likely that new archeological discoveries will support the claim that an eﬀective Chinese administrative system may have been in place at least as early as the Hsia (Xia), the ﬁrst of the ancient dynasties, which is usually dated between 2200 and 1750 B.C. It may never be possible to put earlier legendary rulers into human form: rulers such as the Five Ti, including the still-mythical Huang Ti (Yellow Emperor), to whom tradition has attributed remarkable civic wisdom as a ruler-sage. It seems unlikely, however, that China emerged as a fully bureaucratic state until the later conquest of the Shang dynasty by the Tsou (Zhou) after 1040 B.C. It was only then that we encounter the famous Chinese doctrine of “the ruler’s accountability to a supreme moral force that guides the human community”: an accountability to Heaven , which granted the mandate to rule to any family that proved morally worthy to undertake such a responsibility (Fairbank and Goldman, 2002). Reﬂections. Whatever the merits of these various rival claims to have invented bureaucracy, it seems necessary to assume that a state system of administration was usually found necessary to secure public order throughout an extended realm: to preserve the gains of conquest. Bureaucracy became institutionalized in prehistoric

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times, before the invention of writing and the keeping of oﬃcial records, but the earliest sense of the need for eﬃcient and benevolent rule was conveyed by oﬃcial scribes. To some, unknowable, degree, the existence of a public record surely had some eﬀect in limiting the power of despotic rulers. Recent scholarship underlines the importance of bureaucratic order in early states, especially those in which rulers attempted to maintain civic stability in a period of rapid social and economic change. Civic order resulted from the creation of urban institutions, the imposition of laws, and the resort to coercion to ensure compliance. In theocratic systems like ancient Mesopotamia and Egypt, temporal authority was generated by bureaucratic elites that succeeded in incorporating society into a larger cosmological whole, linked with the gods and the privileged dead (Baines and Yoﬀee, 1998). Legal norms and rules of behavior came to play a signiﬁcant role in the mediation of social conﬂict, even in cases such as Mesopotamia, which has often been regarded as an example of “oriental despotism”, but one scholar has concluded that Mesopotamians “strove constantly to subvert” such innovations (Yoﬀee, 2000). The maintenance of public order was never easy despite the threat of divine retribution and the use of coercive institutions. The Chinese doctrine of civic accountability is of special interest to historians of world order. To the extent that contemporary international law accommodates the new idea that all peoples have a right to “democratic governance”, the question arises whether our secular system of world community law has replaced Heaven as the granter of the mandate to rule, and in extreme cases as the moral and political authority to strip tyrants of their misused mandate. According to legend, the earliest Chinese leaders and sages accepted the ideal of universal responsibility vested in the sovereign of the Middle Kingdom. The duty to rule benevolently was construed to apply beyond the realm to the inferior, barbarian, world beyond, even though the Emperor usually lacked the means or motivation to intervene. Extreme theories of modern bureaucracy are unlikely to be consistent with the realities. The relationship between political leadership and government administration is usually delicate, always shifting in one direction or the other. Bureaucrats are neither servants nor masters in any ﬁxed behavioral sense. Yet it remains diﬃcult to reconcile bureaucracy and democracy (Etzioni-Halevy, 1983). Many of us share Max Weber’s pessimistic view of a rationalistic elite (Glassman, 1984), and the goal of “representative bureaucracy remains elusive (Krislov, 1994; Kingsley, 1944). When we come to the age of global and regional organizations designed to administer sectors of “world government”, we may ﬁnd a diﬀerent, yet comparable, balance constantly shifting between state governments (and governmental delegations) and the secretariats that administer intergovernmental agencies. Ancient Diplomacy Of the six principal domains of early cross-societal relations, it is diplomacy that reveals most about the contributions of primitive antiquity to the development of world order. Three features of ancient diplomacy deserve special notice: the existence

Primitive Order: Seeking Out Antiquity

of an inter-state system; the practice of treaty-making; and the privileged protection of envoys. Inter-state Systems. Since the late 19th century, when Eurocentrism was at its height, it has been conﬁdently asserted by many jurists that international law, in a proper sense, could not have existed before the introduction of the modern nationstate system in the 16th century A.D. Yet if the existence of an inter-state system is necessary as a precondition of international law, then it should be observed that long before the advent of the well-documented age of the Greek city states, beginning in the 8th century B.C., there were less-well-documented accounts of diplomatic relations among the empires of the Near East: those of Egypt, Babylonia, Assyria, the Hittites, and the Israelites (Bederman, 1991), even as early as the second millennium B.C. (Munn-Rankin, 1956). It is also argued, though not without dispute, that the turbulent middle and later periods of the Chou dynasty in China were preceded by an era of relative peacefulness, the “Spring and Autumn” period (722-481 B.C.), when China consisted of dozens of small states or principalities that co-existed with one another as a loosely conceived league or federation (Lee, 2002). For the 20-year period 722-703 B.C., the annals Ch’un Ch’iu and Tso Chuan reveal a system of 55 polities, “including organized barbarian tribes, town-states temporarily enjoying independence, and small states on [the] verge of absorption into larger, together with forty-three principalities commonly considered states” (Britton, 1935). Chieftains are believed to have accepted one another as hereditary and absolute rulers entitled to the status and prerogatives of sovereigns. It may or may not have been quite the “golden age” romanticized by the orthodox Confucian moralists of later times, but it may have possessed some of the characteristics attributed to it as a system of near-equals (Martin, 1883). Unfortunately none of these early inter-state systems, however analogous to the modern system, is suﬃciently well documented to provide a factual foundation for useful comparison. Yet occasional interactions among these polities did, of course, take place, and clearly some degree of ceremony and civility was observed by receiving authorities and visiting envoys. Scholars have diﬀered in their assessment of those early inter-city relations as forerunners of the modern system of equal sovereign states. For some specialists in ancient civilizations such as the Egyptian and Hittite cultures, it may be easier to discern “comity” than the existence of legal rules. Contending scholars emphasize the fact of historic discontinuity, pointing to the subsequent crushing of the shortlived Egyptian-Hittite system by the reputedly ruthless Assyrians. Such diplomacy as emerged “vanished in the storms that swept through the oriental world”, depriving the later city-states of Greece of “the lessons of the distant past”. By this reasoning, the epic hero-ﬁgure of Homer’s Odysseus, the most eloquent and resourceful diplomatist, was “entirely a creature of literary imagination, owing nothing to history” (Adcock and Mosley, 1975). Treaty-making. The strongest evidence of rudimentary international law in the inter-city/inter-state systems of primitive antiquity is found in the domain of trea-

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ty-making. Whether ancient religion qualiﬁes as a source of international law can certainly be questioned. Ancient warfare was such a barbaric business that we are repelled, and inclined to challenge self-serving accounts of magnanimous conquerors who may have been obliged to appease the gods. Ancient trade was the springboard for transnational intercourse, but not yet suﬃciently widespread to require statesanctioned standards, procedures or guarantees. In many primitive societies the traditions of hospitality, alliance, and personal friendship must have contributed to what appear to be very early grants of special privilege to representatives of foreign cities or states, but the extent of compliance is still a matter for speculation. On the other hand, no doubt at all can be entertained about the existence of ancient treaties. Since the 1950’s, research on the steles of the Near East has produced an abundance of evidence that by the middle of the second millennium B.C. the people of the lands between Egypt and Mesopotamia had begun to develop a fairly consistent pattern of treaty-making. It has been argued by linguistic scholars that the Akkadians should be credited as the inventors of a common diplomatic and legal terminology that provided a degree of conformity within the treaty-making system of the region (Ziskind, 1967). Even allowing for the possibility of overinterpretation of these early inscriptions, we seem obliged to accept the existence of at least a rudimentary system along the lines suggested. The earliest reference to a treaty-like bond is the Mesopotamian term riksu, and the same culture provided the term manita, an oath. The Hittites, who were perhaps the most active of the early treaty-makers, seem to have taken their legal terminology from the Babylonians. In the same eon the Hebrew term brit (covenant) was in common use. Each of these and other early peoples of the region went their own way in the purposes that treaty-making was made to serve. Only the Assyrians, obsessed with subjugation as the main purpose of life, seem to have ignored the advantages that might be wrested from the negotiation process. From the texts available, and from references to others not extant, it seems that the earliest treaties were almost invariably treated as personal contracts between the monarchs. Also, they made no mention of their divine legitimacy or divine agency (as in the case of war), and were regarded by the parties as legally binding. All of this evidence of premature modernity is surprising, if we are to believe that all ancient law and custom is rooted in religion. One of the earliest examples of treaty-making on record is the famous Sumerian stele of the Vultures, which commemorated the subjugation of the city of Umma by Eannatum, the ruler of the state of Lagash, about 100 miles south of Babylon. Although unilateral in form, sworn by the ruler of Umma to the conqueror, it seems intended to function as a binding agreement between the two Sumerian cities. Unlike more recent treaties devoted to the restoration of peaceful relations, this instrument is also polemical in style. Eannatum used the occasion to accuse the people of Umma of violating divinely appointed boundaries and to order their re-establishment. Within a century the treaty was broken, Lagash plundered, and its temples razed by the vengeful Ummarites. It was an appropriate precursor to the unhappy history of subsequent treaty-making designed to establish permanent peace.

Primitive Order: Seeking Out Antiquity

Even more famous is the treaty between Rameses II of Egypt and Hattusilis III of the Hittites, whereby each king acknowledges his obligation to the other on separate tablets. The obligations were reciprocal, and therefore based on the principle of equality between the parties. Unlike those in the Sumerian treaty between the cities of Umma and Lagash, the obligations exchanged between Rameses and Hattusilis do not appear to be subject to the sanction of an oath, although in most matters Hittite treaty-making was strongly inﬂuenced by earlier Sumerian practices (Ziskind, 1967). The Hittites seem to have been remarkably ﬂexible as well as fairly frequent treatymakers, despite their reputation for rough manners. The Hittite treaties have attracted the attention of scholars because of their versatility and intricacy. For example, the Hittites seem to have observed a distinction between “parity” treaties with sovereign equals (such as Rameses II) and more normal “vassal” treaties with lesser rulers such as the kings of Mitanni and Kizzuwatna. It is possible the Hittites willingly deferred to the great Pharaoh as the “ﬁrst of equals” among the rulers of the day. On the other hand, the Hittites were quite ﬁrm on the irrelevance of reciprocity in their dealings with lesser treaty partners: for example, their vassal treaties on extradition were apparently intended only to ensure the return of fugitives to the Hittite torture chambers. The vassal states located dangerously close to the Hittites were obliged to bind themselves in absolute obedience to the Hittite king, but apparently they were left to direct their own internal aﬀairs without interference by the Hittite king. The treaty system of the Near East has been interpreted as a kind of implied protection arrangement for the beneﬁt of the vassal states without any explicit grant of speciﬁc obligations falling on the Hittite king, who remained unnamed as a party to these treaties. He argues that Israel’s foundational myth of the Sinai covenant was derived from the Hittite system: that Yahweh (Jehovah) fulﬁlled the role of the Hittite king. In return for their absolute allegiance, Yahweh gave the Israeli clans his protection and help, though he himself remained entirely free of obligation. “The covenant is not a contractual agreement between partners, but the granting of a particular status by Yahweh to a group of clans from whom certain obligations are required”. This theory diﬀers from the interpretation of Exodus 20:2 put forward by McCarthy (1963) and others: “I am the Lord thy God, which have brought thee out of the land of Egypt, out of the house of bondage”. In numerous other examples of ancient bilateral treaty-making, we see a relatively clear picture of rulers of antiquity who were willing and able to enter into arrangements that might be described as contractual in nature amid the trappings of religious rites and ceremonies. Yet within the ancient treaty system of the Near East wide variations existed. For example, some treaties were perceived to become binding only through the exchange of oaths. Indeed the Israelites of the Old Testament took the oath so seriously that their brits were accepted as permanently binding even though proven to be the product of deception, as long as the oaths had been taken with proper formality, thereby defying the notion that fraud invalidates. At other times and places, it appears that the bindingness of an ancient treaty depended upon the performance of sacriﬁcial rites, such as the killing of an ass or goat. The phrase “to kill an ass” has been construed as meaning “to make a treaty” (Ziskind,

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1967). In some practices, the permanence of the obligations created by a treaty was associated with the permanence of the tablet, raising modern questions about the legal eﬀect of eﬀacement. It would be left to the Romans to create a sophisticated legal system within which treaties, like contracts, were conceived as creating obligations in the abstract, whose legal existence was independent of that of the text and might be proven by extrinsic evidence. Diplomatic Protection. Another analogue with the modern world is found in the gradual acceptance of what we would recognize as a primitive version of diplomatic immunity. With Sir Harold Nicolson we must suppose a primordial origin. “Even in pre-history there must have come moments when one group of savages wished to negotiate with another group of savages, if only for the purpose of indicating that they had had enough of the day’s battle and would like a pause in which to collect their wounded and bury their dead. From the very ﬁrst, even to our Cromagnon or Neanderthal ancestors, it must have become apparent that such negotiations would be severely hampered if the emissary from one side were killed and eaten by the other side before he had had time to deliver his message. The practice must therefore have become established even in the remotest times that it would be better to grant to such negotiators certain privileges and immunities which were denied to warriors” (Nicolson, 1963). Most readers are likely to be convinced by Numelin (1950) that primitive peoples made occasional, if not frequent, use of messengers and envoys between neighboring groups or tribes to convey information or proposals and to negotiate arrangements on matters of common interest. He shows that primitive peoples chose their envoys with discrimination from among the leading members of the tribe – sometimes women for particularly important missions. Often these emissaries were extended personal immunity, even in hostile territory, in the belief that they had been endowed with divine protection and that violation would ensure a terrible retribution. The literature on ancient diplomacy shows surprisingly similar patterns of acceptance – or at least limited acceptance – of diplomatic privilege among the Egyptians, Hittites, Assyrians, Babylonians, Hebrews, Chinese, and Indians. Exchanges of privileged envoys between the Egyptians and Hittites are recorded in records as old as 1,278 B.C., although ad hoc diplomacy is certainly very much older. Similar diplomatic practices between the 13th and 3rd centuries B.C. are described in various books of the Old Testament and in the Apocrypha. Masses of evidence exist on diplomatic interactions between the Assyrians and their neighbors in the 8th century B.C. (Calvet de Magalhaes, 1988). Admittedly, these sources also reﬂect frequent breaches and abuses of diplomatic privilege, a problem, as we have seen in Chapter I, that continues to erupt periodically in our own, normally smooth, world of modern diplomacy (Barker, 1996). Reﬂections. It seems unreasonable not to acknowledge the existence of inter-state relations in the Near East in the second millennium B.C. But the power status of the Egyptians, Mesopotamians, Hittites and others rose and fell, and there was probably continuing resistance to the notion of inter-state equality as a natural condition. No

Primitive Order: Seeking Out Antiquity

doubt it was normal to concede prerogative to the dominant power of the day. It is diﬃcult to establish how deeply the concept of state equality penetrated Chinese political history of the same period. In the absence of true equality among states associated with an inter-state “system”, we can hardly expect to ﬁnd many examples of treaties equally binding on both sides. The treaty relationship between the Hittites and the Egyptians for a short period may have been a notable exception to the normal practice of asymmetrical treaty-making, but of course it did not endure. This lightly sketched picture of diplomatic relations in primitive antiquity oﬀers a “functionalist” view of the origins of diplomatic immunity: that protection was afforded to the diplomatic function of communication – that is, to the message or the process – rather than to the messenger. It would be much later, as the theory of sovereignty developed, that the rival view emerged that immunity belongs to the messenger as representative of the sending sovereign. Today the rationale of “functional necessity” tends to prevail, as we shall see in due course, over the theory of “personal representation”, and of “extraterritoriality” in the case of diplomatic premises (Wilson, 1967). The most reliable evidence of ancient diplomacy is provided by the Greeks in the period of Western classical antiquity. Yet it should be kept in mind that the reception and protection of envoys must have grown out of the universal capacity for trust and friendship. All but the most barbaric cultures of old nurtured a tradition of hospitality, often reﬂected in customary insistence upon the observance of courtesies owed to guests. There is surely no need to assume that personal generosity was conﬁned to the higher social orders, but presumably the early examples of diplomatic privilege had much to do with the high-born sense of honor, both in extending and receiving courtesies among strangers of rank. Today personal diplomacy continues to have a useful role even in an era of highly professionalized and institutionalized modes of diplomacy among nations (Bederman, 2001) Final Reflections There are many roads that can be taken back to the distant past. Some are old and well-trampled; others are still only lightly traveled. Most scholars might be inclined to choose the former as the safer, but established fact and scholarly opinion are often creatures of convention. In the ﬁeld of antiquity, we are still very much indebted to historians and archeologists, disciplinarians highly prone to divisions of opinion on elusive data demanding interpretation. We should never lose sight of the fact that ancient history is forever entangled in mysteries. It is certainly possible to concentrate on evidence that the ancient history of the Near East witnessed signiﬁcant eﬀorts to establish and maintain an international political order, accompanied by a rudimentary system of diplomatic relations. Bozeman (1950) draws a picture of a “cosmopolitan age” in the middle of the second millennium B.C., when the Babylonians, Egyptians and Hittites were drawn into a relatively steady state of international communications throughout the Levant, Northeast Africa, and Southwest Asia. By this account, we see an international, inter-state system

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evolving at two levels. Among the Mesopotamians a system of competitive, river-dependent, city-states had emerged. It appears that these mutually suspicious polities were forced to cooperate in certain matters, as cousins drawing upon similar cultural beliefs and traditions. On the other hand, the Egyptians, under the aegis of their one-and-only god-king, had become a single, uniﬁed, nation-state. Although they enjoyed the beneﬁts of a more aﬄuent, semi-urban, skill-based society they were obliged to maintain political and diplomatic relations with both the Mesopotamians and the Hittites, as their own ambitions exceeded their military grasp. The Egyptians never oﬃcially acknowledged any legal obligation or sense of comity within the framework of neighboring empires and states, but it may be that the services of envoys and messengers were needed chieﬂy to maintain correspondence among the widely scattered Egyptian daughters and royal cousins, who had been pressed into numerous dynastic marriages throughout the region. Modern egalitarians may insist that the only kind of inter-state system that qualiﬁes as the predecessor of the modern system of world order is one where all the states are accepted as equals. But all such systems, including the most modern, have been characterized by the presence of “hegemonial” power or inﬂuence in some degree. In the ancient history of the Near East, there were long periods when Egyptian hegemonial status owed as much to cultural preeminence and religious mystique as to military ascendance. It may only have been in the late second millennium B.C. that the pharaoh was obliged to “step down from his exalted position in the cosmic order”, so as to develop more egalitarian relations with his neighbors: the Hittites, the Babylonians, the Assyrians, the Cretan Federation, and lesser powers. Interestingly, throughout the period of Egyptian hegemony and subsequently, it was Babylonian, not Egyptian, that continued to serve as the lingua franca of the diplomatic system of the mid-second millennium B.C.– the antecedent of Aramaic, Latin, French and English as the international language of diplomacy. For someone seeking evidence of how the ideas and practices of international law may have begun, the chief reason might be to ascertain as far as possible the foundation for claims to universality. The theory of the European origin of international law, which was paramount in the second half of the 19th century, and to a lesser extent in the ﬁrst half of the 20th, needs to be confronted. Enough of this theory survives to feed the suspicion of continuing cultural bias. To some European scholars the debate comes down to how we choose to deploy the concept of “civilization” (Grewe, 2000). It will become obvious, as the story unfolds, that the Western family of civilizations played a predominant part in the building of modern international law. Both gloriously and ingloriously, the European societies in particular developed and applied this “normative science” as a means of evaluating their own conduct as states on the world stage, as well as that of others accepted as subjects of international law. A verdict on how well or badly they conducted themselves must be reserved until we reach that point in the story. In the meantime, we have some evidence, incomplete and uncertain, that there were many beginnings, and some modest traditions of inter-communal civility, for building a modern system of world order.

Primitive Order: Seeking Out Antiquity

Primitive antiquity is too early to ﬁnd the ﬁrst evidence of any of the twelve models of contemporary international law. It furnished only a few antecedents that could be recognized today as “elements” of international law. Even as trade routes expanded, it was much too early for rulers, on behalf of “states”, to conceive of the need to “regulate” commercial activities. Decency in the conduct of war was not unknown, but, in the absence of documentary evidence, it is hard to believe that primitive warfare was governed signiﬁcantly by considerations of benevolence. There is no common heritage, and no profession of written philosophy to draw out the bolder visions of those distant ages. Primitive religion, at best, served to promote order within homogeneous cultures, through fear rather than enlightenment. But diplomacy and treatymaking were part of the ancient world, creating an early tradition of respect for rulers and envoys before the birth of anything resembling the modern nation-state; and in certain early states we see the rudiments of an ordered civic society.

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4 Universal Order in Classical Antiquity

Prior to the 7th century B.C., the most enlightened empires did display an awareness of the need for civility among tribal leaders. One can recognize in some of those relationships the origins of what would eventually be characterized the “comity of nations”. But there was not yet any established set of norms that were regarded as “binding” on rulers. To the extent that prehistoric regimes were constrained by norms or institutions it was by force of customs that might be said to reﬂect the “social nature” and “economic necessities” of the human being (Hosack, 1882). Beyond the limits of the local community, public order was achieved and maintained by coercion, bureaucratic control, and primitive legal institutions. By the 7th century B.C., however, the march of history quickened its pace. In several cultural regions, each under the inﬂuence of its own physical environment, human development became subject to transformation on a scale not previously experienced. Simultaneously, and mostly without interaction, the building of urban society became a more ambitious enterprise. It is diﬃcult to ﬁnd an explanation for the coincidence of social transformation in the “major systems” of civilization, as they have come to be regarded. Within these systems, between 700 B.C. and 400 A.D., the basic problems of physical survival were brought under control, government became more eﬀective, the human imagination expanded, and in some civilizations the idea of civic enlightenment found expression. Nowhere was the escape from “survival-mode” society more dramatic than in the Mediterranean cultures of ancient Greece and Rome. There, in particular, highly developed literary traditions produced impressive exponents of civic ideals, who provided the intellectual foundations for the future development of international law, beyond the limited visions of primitive antiquity. Order was conceived as a human need, a universal necessity. It would now become possible to imagine universal order. Signiﬁcantly, it was in this period that most philosophic traditions were formed, coinciding with most pan-religious organizations, hailed as the means by which the meaning of life is explained – or feared and reviled as the gathering of enemy beliefs and values. Questions. What were the principal contributions of classical Greece and Rome to the ideals of human dignity and public order? How much did they have in common? How did they diﬀer? Who were the ﬁrst pioneers in the intellectual history of civic

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benevolence, in the tower and arena of classical antiquity? Who were the early promoters of universal order? What were the civic achievements of the Chinese and Indian systems in the same era? Was there also a “classical “ period in African history? Let us turn ﬁrst to Greece. I

The Greeks

The Hellenic civilization can be deﬁned broadly. In the generous view of Arnold Toynbee (1959), it came into existence before 1,000 B.C. and continued as a single stream of inﬂuence on the world until its demise in the 7th century A.D. It was preceded by the Minoan-Mycenaean civilization, and was succeeded eventually by the Byzantine. The Mycenaean structure of government, based on kingship, was unitary, quite the opposite of the pluralistic system of independent Greek city-states that succeeded it around 1200 B.C. Although the Hellene civilization cannot be identiﬁed simply by reference to country or language, its eventual ﬂowering took place during the period from (say) 600 B.C. to the death of Aristotle (384-322 B.C.), which came shortly after the Athenians’ ﬁnal, failing struggle with Philip II of Macedon and the succession of his masterful son, Alexander. By political, military and economic criteria, other periods of Hellenic history can be distinguished, but for present purposes it is the intellectual contributions of the Greeks that are given most weight. By general consent the genius of Aristotle represents the apex of Hellenic thought. With a view to locating the origins of world order, the Roman contributions deserve separate treatment, and the 3rd century B.C. will be a convenient time to gather up those colorful threads of the Mediterranean tapestry. It is one of the many wonders of Greek classical antiquity that so many major contributions were made to the intellectual history of the world within a system of such small entities. By the 5th century B.C. perhaps only ten or twelve poleis had a population of 50,000, of which only one-ﬁfth were Greek citizens. Only Athens and Sparta were to grow to the level of a quarter of a million inhabitants. The small minority of Greeks controlled everything. Others, including the slave caste, had few rights, although it might be supposed that their subordinate status did not deprive them of the material comforts available within the most advanced societies of the Western world (Bederman, 2001). The smallness of the government structures does not seem to have been a limiting factor. One looks rather to the vitality of the human spirit as the most likely single explanation for such a profound and lasting inﬂuence. Questions. But what did the Greeks contribute speciﬁcally to the development of world order in the world of antiquity? How much does the international law community today owe to their famous philosophers? Before their subjugation to Alexander, did they succeed in maintaining an eﬀective, genuinely cooperative, treaty-making system of inter-state relations? What inﬂuence did they have on the famously legalistic Romans? Religion, Philosophy and Political Theory. The gods of classical antiquity, like their more ancient counterparts, were mirrors held up by primitive society. As noted

Universal Order in Classical Antiquity

by an eminent scholar, “the passion of the Jews for legalistic discipline in all departments of life and their provincial, exclusive nationalism found an appropriate champion in Jehovah. So too the Greek gods reﬂect with illuminating clarity some salient features in the Greek character and are so closely connected with it that we can hardly think of the Greeks without them” (Bowra, 1973). Unlike Judaism, Christianity and Islam, Greek religious thought produced no great prophet, no sacred text, no clerical hierarchy, no revealed cosmology, and no orthodoxy. It oﬀered no plan and permitted dissent. Greek culture was intensely individualistic, and tolerated independent belief, at least more than any previous civilization. Although the accusation against Socrates in 399 B.C. was that “he does not recognize the gods recognized by the state but introduces new divinities”, his great oﬀence was above all political (Stone, 1989). Other Greek intellectuals were spared the fate of prosecution for expressing their skepticism. Scholars as far back as Xenophanes (c. 570-478 B.C.), the poet and founder of the Eleatic school of philosophy, and Heraclitus (c. 540-480 B.C.), the acerbic misanthrope of Greek philosophy, observed the tendency of human beings to create gods in their own image, but did not deny the possibility of divine power. Thucydides (c. 463-403 B.C.), the ﬁrst true historian, concealed any religious beliefs that he might have had, insisting that all events can be explained in human terms, and should be justiﬁed by virtue of human laws and moral standards. Democritus (c. 460-350 B.C.), the founder of atomic theory, might be said, in eﬀect, to have “eliminated the gods from the government of the universe”. Earlier, the playwright Critias (c. 460-403 B.C.), through one of his characters, suggested that the gods were “an invention of some great teacher who wishes to frighten man into keeping the laws” (Bowra, 1973). For hundreds of years after the overthrow of hereditary kingship around 700 B.C., Greece was a living laboratory of political ideas and experiments. In most of the Greek cities, monarchy was replaced by written constitutions designed to allocate power among various classes of citizens: variants on the non-monarchic models of oligarchy and democracy. Democratic institutions may have been introduced ﬁrst in Chios, but it was Athens that took the lead in the day-to-day practice of popular governance: government, at least, by the free, male, adult population. Although oligarchy, supported by the aristocracy, tended to prevail over democracy, supported by the people, the Greek ideals of popular rule have persisted and become the norm for modern society, buttressed in modern times by sacred texts of international law. It was the Greeks who initiated the great historic debate on the nature of “good government”. The earliest Greek philosophers did not theorize about the duties of the state. The Milesians in the 6th century B.C. speculated mostly on the nature of matter, using reason rather to explore the limits of divine authority. Their successors, such as Pythagoras, Heraclitus, Parmenides and the Atomists, were no more attracted to moral and political issues. Indeed it might be said that the Greek philosophers did not take up the challenge of political authority until the advent of the Sophists founded by Protagoras (c. 490-c. 418 B.C.). The Sophists were the ﬁrst professional tutors of classical antiquity. Most of them were foreign residents who made themselves available as teachers of rhetoric and related professional skills to the ambitious sons of wealthy families. Their strength

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lay in their versatility, eloquence, and mental agility: a cross, it has been suggested, between professors and journalists, thereby attracting the scorn of so many philosophers of other stripes. Out of the ranks of their pupils came many leaders of the oligarchic cause: many of the Sophist masters were solidly conservative, not least Protagoras himself. Protagoras was the ﬁrst great pragmatist. For this famously rigorous skeptic, “each man is the measure of all things”. There is no objective truth by which it can be determined that one view is wholly right and the other wholly wrong. As Bertrand Russell (1954) observed, disbelief in objective truth tends to appoint the majority as the arbiters on what to believe. “Hence Protagoras was led to a defense of law and convention and traditional morality. While ... he did not know whether the gods existed, he was sure they ought to be worshipped. This point of view is obviously the right one for a man whose theoretical skepticism is thoroughgoing and logical.” The issues of public order and political authority were also taken up by others, such as the Stoics and (misnamed) Cynics. The former modiﬁed the doctrine of the latter, accepting the beneﬁts of civilization but looking always beyond the quest for civic enlightenment to the “world of universals in nature”. They were the most insistent expounders of individualism in early Western political thought, and arguably also the founders of anarchism. In the Republic imagined by Zeno the Stoic (c. 320-c. 250 B.C.) there are no law courts, police, armies, temples, schools, money, or even marriage. People live as a single ‘herd’, without family and property, with no distinctions of race or rank … Above all, there is no longer any need for compulsion. People fulﬁll their natures living in a stateless society of complete equality and freedom, which spreads across the whole globe” (Marshall, 1993). One of the chief contributions of Greek political philosophy is its espousal of the “common idea of justice”. Gross departures from this ethical construct were proof of barbarism. In his Rhetoric, Aristotle (c. 427-c. 347 B.C.) argued for the centrality of this principle, “which all men intuitively understand in some way, even if they have neither communications nor treaty (syntheke) with one another”. Justice, for Aristotle, was a personal virtue, indeed the “sum of all virtues”, but it was not perceived as an ethical requirement of good government extending equally to all residents of the polity, much less to all peoples beyond. Neither Plato (c. 427-c. 347 B.C.) nor his brilliant student Aristotle was the best exemplar of the modern sense of moral rightness. Both were critics of democracy, and wary of excessive tolerance. They were not humanists (Barker, Ernest, 1959). Indeed Aristotle and most of his contemporaries are now notorious in the eyes of posterity for their defense of slavery. In his Politics, Aristotle satisﬁes himself that some men are by nature free, and others slaves, and that for these latter slavery is “both beneﬁcial and just” (Barker, Ernest 1946). The view that slavery is a “natural” state created the diﬃculty of dealing with those reduced to slavery by law (“a sort of justice”), which allows a master to acquire ownership of a captive taken in warfare. Since he wished to argue that “the superior in goodness ought to rule over, and be the master of, his inferiors”, Aristotle came close to the position that only war prisoners who are foreigners (barbaroi) can be legally reduced to slavery because they belong to a morally inferior people. Like slaves, foreigners lack entitlements and fall outside the

Universal Order in Classical Antiquity

pale of Hellenic civilization. Faced with this ﬂaw in the nobility of his vision, we are reminded that Aristotle’s world was limited to the system of Greek city-states. It was Hellenic, not global, in its reach. Despite the intensity of their interest in human nature and the role of reason, the Greeks apparently never envisaged a world order. Aristotle’s veriﬁed writings carry no vision of a future world law based on universal justice for a common humanity. The hope that he felt obliged to suppress such a secret wish for the future would have to rest with a private letter that purports to be from Aristotle to his former pupil, Alexander, the great conqueror, whose inter-racialism was as distressing to his Athenian admirers as the exaggerated tales of his daily debaucheries (Fox, 1973). The letter attributed to Aristotle suggests that “if mankind in general is destined to reach true felicity within the duration of this world, there will come about that concord and order … when men will agree to constitute one rule and one kingdom. They will cease from wars and strife, and devote themselves to that which promotes their welfare and the welfare of their cities and countries”. The hope that this letter is a genuine product of Aristotle’s pen is slim. Stern suggests that it, more probably, is a forgery of more recent date, inspired by the vision of a messianic age promised by the Hebrew prophets. International lawyers would no doubt accept a validation of the world law ideal in Greek political thought, if it presented itself, but it seems more probable that the Greeks’ intellectual passion for perfection, which rose above all previous standards, was kept within the circle of Hellene civilization. Yet the ﬁnal verdict on the quality of Greek thought is so favorable that we may agree to overlook the limitations of the Greek vision of common humanity. No previous civilization, constrained by religious beliefs, came close to the Greek assessment of human worth. “They diﬀered fundamentally from their contemporaries in Asia, who thought that the great mass of men were of no importance in comparison with the god-kings for whose services they existed, and from their contemporaries in Egypt, who believed that life in this world was but a trivial preliminary to the peculiar permanence of life in the grave. The Greeks both recognized that men are worthy of respect in themselves and were content that they should win this in the only life of which we have any knowledge” (Bowra, 1973). Lest Westerners of our own age take undue satisfaction in the modern concepts of “world community” and “world society”, it must be recalled that only two or three generations have passed since the last barriers of cultural bias in the theory of international law were broken down. The idea that international law was a system ﬁt only for “civilized nations” was ﬁrmly implanted in the minds of most Western international lawyers in the 19th century, and persisted up to, if not beyond, the middle of the 20th. Perhaps we have scarcely advanced beyond Aristotle’s limited vision of the universe. As to the concept of a law of nations, the Greek philosophers were constrained by their unanimity on one point: that the “natural” unit of human governance was the city-state. As explained by Aristotle in his Politics, “a state should not be so large as to make it impossible or diﬃcult for its free citizens to have ready access to each other, and to be acquainted with one another” (Phillipson, 1979). As Sir Ernest Barker (1946)

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has noted, this defense of the city-state as the ideal unit of governance “throws a light on Greek jurisprudence” as well as politics. The idea that judges should know litigants personally, just as electors should know political candidates personally, seems strikingly incompatible with the modern ideal of impersonal injustice. Greek conceptions of the ideal society varied under the competing inﬂuences of democratic, oligarchic, and intermediate ideologies, but no political philosopher came forward to challenge the parochialism inherent in the Greek obsession with the city-state. Obviously not all foreigners were held in contempt by the Greeks, but the value of freedom as the motive force in human society dominated Greek political philosophy, and indeed political life. “It was felt that foreigners, being without liberty, had at best the morality of slaves and might all too easily indulge in acts of violence ﬁt only for brutes. Just as freedom was what the Greeks valued most highly in their own traditions, so what they most deplored in alien peoples was their tendency to behave below the level of free and responsible men” (Bowra, 1973). The system of Greek city-states has been an object of controversy among historians of international law. One writer at the end of the 19th century, reﬂecting an European “concert-of-nations” approach to the question of origin, took the deﬁnite stand that international law in the Hellenic period could be “hardly more than intermunicipal law” (Walker, 1899). Others such as Phillipson (1911) have disputed this dismissive judgment, arguing that the Greek cities had a clear notion of their sovereignty, and that the small scale of the polities did not disqualify their network as a rudimentary system of oﬃcial relations governed to a modest extent by a sense of reciprocity, if not equality. The word “hegemony”, after all, is a Greek term found necessary to describe the reality of leader-states within a system. Arguably, the worldwide inﬂuence of Greek civilization – and especially of Greek philosophy – owed less to the self-absorbed sophisticates of Athens themselves than to the panhellenic aspirations of their conquerors, the Macedonians. Macedon was small, peripheral, inconsequential and barely Hellenic in the eyes of Athenians – the last shed at the end of the dock. Philip II (382-336 B.C.), whose power rested on a warrior aristocracy that was viewed by many Greeks as barbaric, wished to be accepted as a Greek. Deprived of this privilege by birth, he ensured the Hellenization of his son Alexander by appointing Aristotle as his tutor. By virtue of a totally diﬀerent kind of genius, Alexander the Great (356-323 B.C.) projected Greek civilization on to the stage of world history to a degree the Athenians themselves could never have imagined (Fox, 1973). By his death at the age of 32 – within a time-frame of Mozartian (indeed almost Schubertian) brevity – Alexander had achieved conquests of unparalleled dimensions: all or part of present-day Turkey, Syria, Lebanon, Israel, Jordan, Egypt, Libya, Cyprus, Central Asia, Iran, Iraq, Afghanistan, and Pakistan (Leal, 1961). Though “blond, boyish, beardless, and small by to-day’s standards”, this irresistible conqueror was clearly possessed of some kind of divine advantage. Defeat at his hands was often regarded as the inevitable threshold to a new age of liberation, freed from the earlier rule of hated tyrants. If he had survived a normal life span, Alexander might have turned out as hateful and tyrannical as other great soldiers of world history. But he was more than just a

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conqueror. He had apparently “a vision of making all the people of the world one, one race under one government (hence the frequent appointment of natives to positions of power in his conquered provinces, and the marriages – his own and that of 10,000 of his troops – to Asian women). Plutarch, writing 400 years later, said: ‘If the power [daemon] which sent the soul of Alexander into this world had not been in such a hurry to recall it, one law would now be looking down upon all men and they would turn their gaze upon one system of justice as though upon a light, which all could see and thus would they be governed’” (Leal, 1961). At least, he tried to break down the barriers between the Greeks and the “barbarians”, imagined a “world culture”, and created the model of a “world state”. Perhaps we should regard Alexander, above, all as the ﬁrst great cosmopolitan visionary. The manner of Alexander’s death suggests that he was always in danger from those around him. A man of such borderless genius and vision was bound to be diﬃcult to revere as a mere mortal. Those who cut him down might well have feared, above all, the extra-cultural ambitions that set him above the more complacent gods. Yet the Greeks themselves were pioneers in multilateralism. Greek experience with multilateral institutions was certainly strange by modern standards. It ranged from athletic competitions such as the Olympic Games to the political machinations of inter-state leagues. According to Greek legend, the Olympic tradition began with the introduction of the cult of Apollo at Delphi in the middle of the 8th century B.C. The ﬁrst festival was said to have been held as early as 776 B.C., although this has always been a matter of scholarly debate. Starting with competitors drawn mostly from the western Peloponnese, the Games proved increasingly popular and eventually assumed a panhellenic character. Similar festivals were begun in the ﬁrst half of the 6th century B.C. suggesting a growth in panhellenic awareness at that time (Sealey, 1976). However, Greek religion is not where we should expect to ﬁnd a sense, much less a love, of common humanity that might qualify as a predecessor of the civic benevolence model of international law. In the words of a distinguished classicist, the religion of Hellenic civilization “stressed the dignity of action and gave an inspiring impetus to it. But in this it neglected something which we associate with religion, and indeed demand from it. It was not till their civilization began to collapse that the Greeks formed their ﬁrst glimmerings of the brotherhood of men, and even then it was more an abstract ideal than a purposeful conviction. What we miss in Greek religion is love” (Bowra, 1973). Warfare, Neutrality, and Treaties of Peace. Like so many other early peoples, the Greeks had a taste for war. Indeed, resort to military force among the city-states was almost part of their “political routine”. For them war was not a human tragedy or a political miscalculation, but usually an honorable, or even noble, necessity. Like some other ancients, the Greeks invented a glorious past in which heroic ﬁgures strode across the stage of life. They were not impervious to the horrors of the battleﬁeld, but these were borne more lightly than the horrors of defeat. The heroic outlook was based on a deep-rooted sense of honor that ran like a fever through the excitable polities of the Hellenic age. As Bowra put it, the culture of honor demanded vigor-

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ous action in many ﬁelds, including the ﬁeld of battle. Conventional morality had its place, but not above honor! The legendary Achilles was admired as an eloquent, clever, courteous, and wise man, but above these virtues he was exalted as a strong, fearless and honorable warrior. To such admirers, leniency usually had to yield to honor on the ﬁeld of battle. We should not expect to ﬁnd generosity of spirit among the warriors of ancient Greece; not even the generosity of Achilles, their hero of legend. But what of Alexander, the Hellenized Macedonian? We have to concede that he was the greatest conqueror in world history, but what kind of commander was he? The fact is that diﬀerent Alexanders have marched down the ages. Fox (1973) has depicted the famous warrior in a relatively favorable light, in a way that appeals to the modern reader or movie-goer. This Alexander had virtues as well as vices, not least as a man intrigued by exotic cultures, who envisaged a Brotherhood of Man under his imperial domain. But was the world saved, providentially, from a catastrophic perversion of universal order? Should we exalt him as a cosmopolitan idealist? Many historians think not, pointing to his barbarous behavior on and oﬀ the battleﬁeld. Among those who emphasize the dark side of Alexander’s personality, none is more hostile to the Alexandrian myth than Victor Davis Hanson (1999). The warrior depicted by Hanson is a butcher of unequaled ferocity. To his Alexander “the strategy of war meant not the defeat of the enemy, the return of the dead, the construction of a trophy and the settlement of existing disputes, but rather, as his father had taught him, the annihilation of all combatants and the destruction of the culture that had dared to ﬁeld such opposition to his imperial rule”. He is likened to Hitler, “who engineered a militarily brilliant but similarly brutal killing march into Russia during the summer and autumn of 1941. Both Alexander and Hitler were crack-pot mystics, intent solely on loot and plunder under the guise of bringing ‘culture’ to the East and ‘freeing’ oppressed peoples from a corrupt empire. Both were kind to animals, showed deference to women, talked constantly of their own destiny and divinity and could be especially courteous to subordinates even as they planned the destruction of hundreds of thousands, and murdered their closest associates”. Hanson sees Alexander’s famous, decade-long expedition to the Indies resulting in “death and displacement for millions, and the enslavement of thousands more, earning him rightly a place amid the worst monsters history has to oﬀer”. Should we regret the failure of the vision of a Brotherhood of Man under such a ferocious commander? Those who accuse Hanson and others of distortion through selective reporting ﬁnd refuge in the spectacle of other great conquerors, who in subsequent years of peace became great administrators over the bodies of countless corpses, and in the memory of romantics visionaries like Napoleon, who promised universal reform after the last resisters to their will had been exterminated. Those of us wishing for a balance between the worst and best of the distant past might be ready to concede that those were ruthless times. The Greeks of glorious renown who fell to the Macedonians were themselves typical of those times. Often, of course, the Greeks had a speciﬁc excuse for going to war: for example, the Persian deﬁlement of Greek temples in Asia Minor was given as the reason for their aggres-

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sion against Xerxes. Yet frequently, it seems, the Greek states allowed themselves to “drift into war in a sequence of hostile events, none of which … was suﬃcient justiﬁcation or pretext for war”, perhaps “to escape the actual responsibility for declaring war” (Adcock and Mosley, 1995). Neutrality was not revered as a moral stand. The dynamism of the multi-polar world of Greek diplomacy meant that those states tempted to remain neutral were “not doing their part in either repelling external threats or in maintaining an internal balance of power. Abstention was a virtual renunciation of what it meant, quite fundamentally, to be Greek” (Bederman, 2001). Neutrality had, nonetheless, existed in the world of ancient Greece since the late 7th century B.C. as attested by Herodotus, the ﬁrst historian, in the 5th century. Although his writings can hardly be characterized as free of distortion, there is no doubt that neutrality played a role in Persian diplomatic preliminaries to the assault by Xerxes on Greece. The state of Argos seems to have been particularly susceptible to the Persian oﬀer of neutrality. Since then, down the ages, belligerent states have attempted to neutralize potentially hostile states. Neutrality in practice had a complicated history during the period of the Greek city-states, not least in the course of the Peloponnesian War (431-404 B.C.) and in the later wars involving Carthage and Sparta (406-338 B.C.), when there were numerous examples of successful eﬀorts by various states to remain uncommitted to these struggles for power. Bauslaugh (1991) concludes that belligerents and non-belligerents alike, in those warring times, recognized that a neutral policy could be an alternative to alignment, and that in such situations certain legal rights and obligations should apply. Yet the Greek attitude in general remained one of “intolerance and principled reluctance to recognize neutrality as a legitimate political option” (Karsh, 1988), acquiesced in mostly when it served the belligerents’ need for supplies and free passage. Despite Greek ambivalence toward neutrality, its existence then in such a dangerous world is the beginning of an important strand in the overlapping histories of international law and diplomacy. In more modern times the term “neutrality” acquired a legal as well as a political or diplomatic connotation, because a state’s policy of non-participation in a war of other states implied a legal obligation on the part of the neutral state to conduct itself impartially in all its oﬃcial actions vis-à-vis all of the belligerents during the war (Lyon, 1963). The idea that every state has a right to be neutral in time of war has ﬂuctuated over the ages, enjoying general respect in the 19th century, less in the 20th when war became “total”, and almost no respect at all in the 17th and 18th. As we shall see later, certain modern states were to claim the special status of “permanent neutrality” as a matter of political choice, and the “age of alignment” during the cold war of 1946-89 would produce the “third world” policy of non-alignment, which might be regarded as a descendant of the political concept of neutrality developed by the Greeks (Singham and Hume, 1986; Chowdbury, 1966). By the 8th century B.C., in certain parts of the Eastern Mediterranean, there seems to have emerged a sense of the merits of restraint on the conduct of warfare. Certainly by the 6th century B.C. the style of Persian conquest was “diﬀerent from its predecessors; the savagery of the Assyrians seems muted. At least brutality was not

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celebrated in oﬃcial art and Cyrus was careful to respect the institutions and ways of his new subjects” (Roberts, 1995). By the early 4th century, the Athenian historian Xenophon, in his Cyropaedia, could invoke the universality of the laws of war, “established for all time among all men”. Indeed there is evidence of agreements among some of the Greek city-states designed to ban certain kinds of weapons, including, it is said, long-range missiles (Bederman, 2001)! Needless to say, these restraints on the waging of war were often ignored, and historians have competed down the ages in their search for reasons that might serve to excuse their particular favorites. Many specialists in Hellene civilization have insisted that the Greeks waged war on a higher moral plane, but the evidence in support of this belief seems not as compelling as in the case of the Romans, who would later introduce a balance between morality and brutality that the world had not seen before. The extent to which international law or comity played a restraining role in the history of Greek warfare has been a matter of debate among historians for thousands of years. All argument on this point begins with Thucydides (c. 463-403 B.C.), whose (incomplete) History of the Peloponnesian War is generally regarded as the ﬁrst systematic eﬀort to write history with scrupulous regard for factual accuracy. His professional reputation as a reliable recorder is rated much higher than that of Herodotus (c. 480’s-420’s B.C.) and other predecessors, who are usually treated as storytellers with no sense of obligation to separate fact from myth (Collins, 1898). Yet even Thucydides cannot escape suspicion as a biased observer of these famous events. He was a loyal Athenian, and a general on the ﬁeld of battle. Posterity simply cannot judge to what extent his account of the years he lived through is colored by his admiration for his leader, Pericles (c. 495-429 B.C.), and by his own involvement in an unsuccessful campaign, which resulted in his exile in disgrace. Despite his impressively painstaking eﬀorts to write an honest history for posterity, we cannot shake oﬀ the probability that his History does less than justice to Sparta and more than justice to Athens. Even the greatest historical record of classical antiquity is likely to be biased – as much perhaps as Churchill’s magisterial history of the Second World War. Inﬂuenced by the record provided by Thucydides, we are likely to accept that the Peloponnesian War grew out of the rivalry between Sparta and Athens. Early in the 5th century B.C., Peloponnesia, the southern part of the Greek mainland, consisted of several states that had formed an alliance (the Peloponnesian League) under the accepted leadership of Sparta. Then Athens, taking advantage of its new wealth from its silver mines, built a ﬂeet of 200 warships that made it the dominant naval power in the region. When Persia invaded Greece in 480 B.C., Sparta became the leader of Greek resistance, but Athens provided the largest component of the combined Greek navy. So Athens took as much of the credit for the Greek victory at sea in the battle of Salamis (480 B.C.) as Sparta took for the Greek victory on land in the battle of Plataea in the following year (Hanson, 1999). These successes led to a renewal of Greek hostilities against Persia, this time under the auspices of the Delian League, which was founded in 478 B.C. with Athens as the hegemon. Apparently Sparta and the Peloponnesian states did not at ﬁrst feel threatened by this new bloc on the northern and eastern coasts of the Aegean basin,

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but they did not join it. So what emerged, for a time, was a bi-polar world of rival Helene blocs. In the beginning the Delian League was an alliance of free and equal states with the common purpose of repulsing the Persians. But, as Thucydides acknowledges, this new geopolitical status of Athens kindled the ﬁres of imperialism in its chambers of war. Gradually the Athenian hegemon began to extract cash as a form of tribute from the other Delian states, which increasingly assumed a subordinate status. Other members of the League were obliged to go to Athens for arbitration of disputes arising among them. During this period Athens’ status rose from that of a “ﬁrst of equals” to that of an imperial power master-minded by Pericles (de Romilly, 1963; Collins, 1898). Some Athenians were ready to invoke “natural law” to justify their republic’s embrace of “selﬁsh imperialism”: the “natural right” of the strong to impose its will on the weak (Gomme, 1945). Indeed Athens began to arrogate to itself the right to intervene in the internal aﬀairs of its dependent allies. The reader may recognize a paradox with a modern appearance: the growth of political freedom and democracy inside Athens coincided with its determination to engage in “regime change” in weaker countries whose anti-democratic ideology invited its contempt. The new Athenian imperialists, sensing their rising power, felt entitled to resent their allies’ diminishing enthusiasm for unending hostilities as the Persian threat to the Greek homelands receded and in 450 B.C. apparently ended. As the new power in the north, Athens began to see Sparta as a rival, rather than as an ally against a common enemy, somewhat as the United States and the Soviet Union fell apart after the war against Nazi Germany. Hostilities between the two blocs ﬂared up, but were dampened down by the Thirty Years’ Pact of Peace and Non-Aggression signed in 445 B.C. By this treaty Athens gave up her possessions on the mainland, but her domination of the Aegean through the Delian League was recognized. Sadly, this balance-of-power arrangement proved unstable. The war began with hostilities between Corinth, Sparta’s most powerful ally within the Peloponnesian League, and the neutral state of Corcyra (Corfu), which sought to remain outside both blocs. Both of the warring parties appealed to Athens for its support. Initially, according to Thucydides, the Athenians were reluctant to intervene, because they – or, more properly, Pericles – felt obligated by the pact of 445 B.C. to keep the balance of power by refraining from aggression in the region. Presumably with a view to geopolitical advantage, however, Athens decided to make a “defensive” alliance with Corcyra. Arguably this did not violate the letter of the Treaty of Peace, which actually recognized the right of neutral third parties like Corcyra to join either of the two blocs. Yet this decision by Athens was seen to be suﬃciently close to an infringement “in principle” to trigger an encounter between Athenian and Corinthian warships. Corinth and its Peloponesian allies charged Athens with aggression in violation of its treaty obligations: “material breach”, in the language of a later age. The matter was referred to their hegemon, Sparta. A large majority of Spartan citizens, in formal assembly, found Athens guilty of aggression, a verdict later conﬁrmed by a congress of Sparta’s allies, which then announced their willingness to go to war with Athens.

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Pericles, who himself had proposed the alliance with Corcyra, argued against yielding to the Peloponnesian ultimatum, and this was accepted by the majority in the Athenian assembly. Faced with diplomatic deadlock, the Athenians suggested arbitration on the points in dispute, which were essentially arguments of archaic international treaty law, but the Spartans refused to arbitrate. The war began almost immediately with an attack by Thebes, an ally of Sparta, on Plataea, an ally of Athens (Rhodes, 1988). On the evidence of Thucydides, considerations of international law – or at least of international comity – did play a role in these decisions on both sides. Treaties of peace down the ages have often been written in general language that can be interpreted variously in subsequent, strategically freighted situations. The position can be taken that highly political treaties of this kind, though extremely important, are symbolic rather than operational in signiﬁcance, essentially serving “demonstrative” rather than “resolutive”, “distributive”, or “administrative” purposes (Johnston, 1997). Often, as in this case, a peace treaty with a non-aggression clause indicates the existence of a brittle relationship between the parties that is capable of breaking down under stress. In such circumstances a “demonstrative” instrument is the ﬁrst to become involved as “ammunition” in the verbal assaults that often precede resort to military action. It is easy to charge the other side, in times of geopolitical tension, of violating the “spirit” of such a treaty. Moral clarity in such a situation tends to be elusive. On the other hand, it was not “inevitable” that Athens would enter into its “defensive” alliance with Corcyra, nor that the Peloponnesians would choose to interpret this “grey zone” decision as a fundamental treaty violation that justiﬁed resort to war. All the parties had choices, and they knowingly made tension-raising choices that increased the probability of war. Pericles and his counterparts could have prevented the war by insisting on the sanctity of this power-balancing treaty. Sparta could have accepted the Athenian oﬀer of arbitration. But geopolitical ambitions and popular rage prevailed. Alexander was, of course, a much greater soldier than anyone preceding him. He was not constrained by considerations of law. But the Alexander that Fox (1973) has recently re-imprinted on our imagination was a conqueror who could be magnanimous, when he chose to make a favorable impression, as a matter of political strategy rather than morality. Trade and Colonization. As we have noted, the Greeks proﬁted from the lessons they learned from the Phoenicians in the arts of trade and navigation (Garnsey, 1983). It was mercantile interests above all that propelled the Greeks outward into the Mediterranean, and eventually into a network of Greek colonies on islands and in coastal areas of the region that became the economic infrastructure of Hellenization (Reed, 2003). Trade proper became possible only after the invention of money. The oldest coin unearthed dates back to around 700 B.C., the dawn of classical antiquity. The Lydians were apparently the ﬁrst to mint silver coins of standard weight (Roberts, 1995). Money in the form of coin spread rapidly in the Hellenic world, reaching Greece

Universal Order in Classical Antiquity

around 670 B.C. Curiously, the coin did not come into use in Babylon, the den of commercial iniquity, before the Persian conquest of 539 B.C. It has been claimed that Athens, noted for the near-purity of its silver coins, never stooped to devalue its currency even in times of war, which of course were frequent (Levy, 1967). But absolute Athenian integrity on this matter seems doubtful (Heichelheim, 1964). The appearance of money is, of course, of legal importance, since it oﬀered a means by which non-local, non-barter trade could be brought under state control. Through oﬃcial regulation, it has been argued the Greeks became pioneers in the development of standards in business (Calhoun, 1926). With money as the unit of exchange, Greeks traded not only with Greeks, but also with Etruscans and Carthaginians; and, since “business is business”, with Scythians, Gauls and other barbarians with goods ﬁt for the Hellene market (Van Reden, 1995). By the time of the Persian wars with Greece (540-478 B.C.) there were very few states inhabited by Greeks in which coins were not the normal means of conducting trade, as far aﬁeld as Spain, Sicily and Cyprus and into the hinterland eastward beyond the Black Sea. Sparta, the leading challenger to Athenian power in the Hellenes, seems to have been the only signiﬁcant state in the region to resist the spread of money (Brunt, 1974). Conﬂicts between the rich and the poor led to the invention of politics in a recognizably modern form, especially in Athens, where Solon had to legislate reforms to preserve order, such as the prohibition of debt bondage (the enslavement of debtors by wealthy creditors), which could no longer guarantee a suﬃcient labor supply (Roberts, 1995). The Greeks’ success in trade created a wealthy merchant class that strengthened the forces of oligarchy in the famous struggles with the proponents of democracy (Hasebroek, 1965). It also had military consequences, as the new wealthy families could aﬀord armor, and were thus able to build up regiments of hoplites who would become the elite infantry units of the Greek armies. Equipped with helmet, body-armor and shield, the Spartans in particular became adept in mass charges that depended on the cohesiveness of the phalanx (Hanson, 1999). Henceforward, for two centuries, the Greeks dominated the battleﬁeld through superior discipline and technology until they were ﬁnally overmatched by the formidable Romans. It was in the 5th century B.C. that the Greek city-states began to negotiate rudimentary bilateral agreements (symbola) providing legal dispute-settlement procedures which were presumably intended to be made available to traders, among others, although this was not made explicit. The Greeks also pioneered in the development of commercial loans, but, unlike the Romans, they did not attempt to use law to control interest rates (Finley, 1973). For a long time the economic expansion of the Greek states was hindered by the scarcity of land, and growth was possible only through the settlement of commercial colonies. In this context also, Sparta stood apart from other city-states, remaining at the periphery of the Greek colonization movement. Colonization created a Hellenic network stretching far beyond the Aegean, westward as far as Marseilles, touching Libya on the southern coast of the Mediterranean, and reaching beyond the Black Sea in the east (Roberts, 1995). It has been described as a “hiving oﬀ of surplus citizens to foreign lands, sometimes by conquest, and not

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always with the consent of those sent away” (Finley, 1973). Some of these settlements were military colonies (cleruchies), although the use of discharged veterans for colonization by the Greeks was never as frequent as it became with the Romans. Some became famous for their intellectual and cultural inﬂuence, such as Elea in Southern Italy, the home of Parmenides and the Eleatic school of philosophy in the 5th century B.C. But most of these overseas settlements in the later period of Greek colonization were intended as commercial centers, providing the prototype for subsequent waves of colonization over the next two millennia far beyond the rim of Europe, waves that would not be checked, and then reversed, through international law and world diplomacy until the second half of the 20th century A.D. The richest of the Greek colonies was Syracuse, possessor of the best harbor in Sicily. It seems inevitable that the commercial success of Greek colonization would provoke envy in a region teeming with rival merchant peoples, such as the Phoenicians who founded Carthage and settled in Sicily. It was their successors in their daughter-city who eventually halted the spread of Greek trade in the Western Mediterranean (Roberts, 1995). Diplomatic Protection and Immunity. The Greek culture, like some “primitive” cultures already surveyed, put a high value on its tradition of hospitality. As the citystates ﬂourished as trade-centers, they drew in large numbers of traders and other foreigners, and many took up permanent residence within the gates. These polities, though relatively small, were cosmopolitan. Greeks were accustomed to the presence of aliens, many of them families of wealth and education, deserving of respect and entitled to justice despite the regrettable lack of Greek blood in their veins. So, despite their intellectuals’ disdain for foreign cultures, it should not surprise us to read of the courtesies and privileges extended by the Greeks both to diplomatic visitors and alien residents of social rank. The history of Greek-Persian relations in the 5th century B.C. is full of examples of impressive eﬀorts on both sides to live up to the traditional standards of special protection for foreign oﬃcials. Greek heralds (kerykes), envoys (presbeis), and messengers (aggeloi) were frequently sent on oﬃcial business to neighboring territories, even at times of bitter warring when Persian kings were attempting to conquer Greece (Bederman, 2001). The impression received from Greek historians is that the Persian rulers should be credited for their eﬀorts to match the established standards of Greek diplomacy, rather than the reverse. Perhaps the level of compliance with diplomatic courtesies reached in the Near East and the Eastern Mediterranean in the 5th and 4th centuries B.C. was higher than would be attained consistently thereafter until the 16th century A.D., or later, in Western Europe. Of the diﬀerent categories of diplomatic agents in the world of Greek antiquity, the heralds occupied the most honoriﬁc place in the hierarchy of privilege. From time immemorial, Greek heralds were assigned an exalted status as exemplars of the messengers of the gods. In some cities, certain families of the highest reputation became the repositories of the honored heraldic functions, bearers of the staﬀ of Hermes. Among these functions, none was more important than that of escort for diplomatic missions in foreign lands. Since heralds derived their special mandate from Olympus,

Universal Order in Classical Antiquity

violations of the sacred principle of heraldic immunity were punishable by the most severe of sanctions, as were abuses on the part of the bearers of such privileges. Because of the religious origins of Greek heraldry, it appears that the kerykes may always have enjoyed a higher status of immunity than the presbeis and aggeloi and other agents, who were seen to be engaged in the more mundane tasks of political interaction. Scholars diﬀer on this point, and it matters for those concerned with ﬁnding the origins of a secular system of diplomatic immunity. There is certainly no doubt about the frequency of use of envoys engaged to plead a city’s cause before the popular assemblies of foreign leagues or cities. It was the most magniﬁcent of the city’s orators who was normally elected by the people to represent them abroad before assemblies similar to their own. Since then the world has inherited many styles of diplomacy. The resort to highblown rhetoric and hyperbole is one of them, but in most circles of professional diplomacy today it is usually discouraged. Especially in the Anglo-Saxon world, the oratorical style tends to be undercut by suspicion that the practitioner is using the diplomatic calling as a stepping stone to a political career. But the Greek origin of diplomatic ﬂourish should remind us that diﬀerent cultures have tended to generate their own distinct modes of diplomatic expression and persuasion. In any event, the skilled orator adjusts to the mood of the audience. One imagines, in the absence of a written record, that the most eﬀective orators of Greek antiquity possessed versatility in capturing, or even deﬂecting, the mood of the moment among the assembly, rather than loyalty in tracking the “party line” of the day. All diplomacy then was ad hoc. Lacking the professional need to display institutional consistency with the “foreign policy” of the state, the gifted amateur blossomed in the fertile soil of popular Greek diplomacy, arguably an early antecedent of the “open diplomacy” of a much later era. Envoys generally of that era, and sometimes even their families, had the right to travel anywhere in the course of their oﬃcial duties, even in hostile territories. Local authorities were responsible for their safety, and many of the city-states felt obliged to exempt visiting envoys from any form of tax. But the need for privilege and immunity in ancient Greece was seen to extend beyond the restricted category of diplomatic envoys. By the 4th century B.C. all of the larger Greek city-states, and indeed many of the smaller, had become highly cosmopolitan. The majority of residents were neither citizens nor slaves. The Greeks accepted the need to provide a hospitable base for foreign merchants and others in their midst, not unaware of the competitive advantage of a reputation for civilized dealings. So the Greeks invented an institution similar, and in most ways superior, to the honorary consul of modern times (Nussbaum, 1953). The system of proxenoi assumed not only most of the functions we now identify with consular oﬃces, but also some of those associated with embassies and trade missions. The proxeny was a citizen or resident of the host state who was entrusted with the responsibility to discharge a variety of political, diplomatic, legal and commercial duties on behalf of a foreign state. Such an appointment, particularly by a state as signiﬁcant as Athens or Sparta, brought very considerable additional prestige to an individual already highly respected internationally, and often it also brought substantial remuneration for at

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least the commercial services rendered. Proxenoi appointed by Athens, for example, were given legal parity, or near-parity, with Athenian citizens. For example, by the 4th century B.C. it had become fairly common for Athenian proxenies to acquire the right to own real property in Athens. They were safeguarded from harm, and often their family too. Those who harmed these foreign representatives were subject to severe penalties. Proxenies were sometimes granted exemption from certain taxes, such as taxes on imports. Occasionally, the appointee was conferred with the citizenship of the appointing state: the ultimate accolade in an age of such intense patriotism (Walbank, 1978). Treaty-Making. As we have seen, there was an established practice of treaty-making among Egyptian, Mesopotamian, Babylonian, Hittite, Assyrian, Israeli and other Eastern Mediterranean cultures in the 3rd and 2nd millennia B.C., but most of these instruments fell into the category of “vassalage agreements”, which adopted “the tone of a master dictating terms of protection and fealty to a vassal” (Bederman, 2001). These primitive treaties were contractual in form, but not in substance, and might even be regarded as ceremonial rather than transactional in function. But the advent of the Greek city-state system marks the beginning of a new era of treaty-making based on the principle of state equality or near-equality (Nussbaum, 1953). Bederman (2001) notes that many of the Greek treaties were war-related, such as treaties of peace or alliance. The famous pact of peace of 445 B.C. between Sparta and Athens was more detailed than most instruments of this kind, providing for arbitration of disputes that might arise and including a guarantee by Athens that inter-state trade would be unmolested by her warships. Typically peace treaties were negotiated in the ﬁnal stages of war to stop the destruction of the defeated or nearly-defeated city, not to prevent slaughter. Often the vanquished city was obligated by the instrument to dismantle its walls, surrender its war-making equipment, and pay an indemnity by way of reparation (Adcock and Mosley, 1975). Sometimes a limited war was followed by a more general treaty of peace. The Peace of Nicias of 421 B.C. was signed not only by the belligerents such as Sparta and Athens but also by a number of other cities that were not involved in the hostilities. It would be a mistake, however, for posterity to credit the parties to such instruments as seriously committed to the cause of peace. Almost invariably they were dictated by tactical considerations of how and when to resume the normal business of warfare to better advantage. Often the true function of a peace treaty was simply to re-arrange the pattern of alliances in a constantly shifting geo-political landscape, not much diﬀerent from a treaty of friendship at a time and place when most inter-state friendships were ﬂeeting at best. Despite the evidence of cynical intentions, Greek treaties were usually the product of surprisingly elaborate and protracted negotiations. The need for formality and ritual was accepted on all sides. Heralds would accompany the envoys to open treaty talks to ensure compliance with the appropriate solemnities. Greek envoys seem also to have initiated the practice of “shuttle diplomacy”, which it is clearly wrong to regard as an exercise introduced in the age of aviation. Despite the energy expended on these instruments, the text was invariably general and often formulaic, even when the

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agreement was commercial in purpose (Mosley, 1973). However, Bederman (2001) challenges any assumption that these agreements were not the result of considerable precision and sophistication in the choice of terminology. Arbitration. Although the Greeks contributed very signiﬁcantly to the development of international diplomacy in the various ways discussed above, their principal legacy as early practitioners of international law was in the use of arbitration, in lieu of war, for the settlement of disputes arising among them (Nussbaum, 1953). Before the era of Hellene civilization, warfare was almost invariably the sole means of settling inter-state conﬂicts. The Greeks themselves were frequently drawn into war with foreign states outside the system of Greek city-states. After the Greeks, in the period of Roman domination, the tradition of resort to international inter-state arbitration declined, and then virtually disappeared until the 13th century A.D. Since then it has gradually recovered as a civilized feature of inter-state relations, reaching its peak of popularity as an alternative to war in the 19th century. Thereafter, as we shall see, it has had to compete with permanent judicial institutions as a mode of peaceful third-party settlement of international disputes. To appreciate the value of the ancient Greek practice of arbitration, it is important to know that modern arbitration is usually regarded as consisting of two essentially diﬀerent phenomena: the public phenomenon of inter-state arbitration, which is a feature of public international law, and the private, unpublicized phenomenon of commercial arbitration, which is a feature of private international commercial practice. Both, however, draw upon the same stock of procedures, principles and formalities that were developed by the Greeks. Arbitration rests on the notion of referring a serious dispute to a formal, decision-making authority that can be trusted to deal seriously and impartially with the matter in the interest of dispensing justice to the parties. It may be that some readers are unaware of the extent of arbitration in commercial practice today. Every year many thousands of commercial disputes that would otherwise clog up the courts – indeed close down the judicial system – are referred to arbitration, usually by reason of an arbitration clause in the contract originally negotiated by the parties to the dispute (Mentschikoﬀ, 1961). Most international centers of commerce, such as London, New York, Paris, Moscow, Beijing, Stockholm, Zurich, and many others, oﬀer arbitration facilities for such cases (Wetter, 1979). More directly related to the Greek experience, however, is the practice of referring serious inter-state quarrels to a single arbitrator, rather than to a court of arbitration or an arbitration tribunal in the more modern manner. The Sumerian Code of Hammurabi (c. 2100 B.C.). promulgated in Babylon, made it the personal duty of the sovereign to administer justice through arbitration. The Greeks, like the Egyptians before them, followed suit. The use of a single sovereign to resolve a conﬂict between two other sovereign equals is now unusual, but not unknown. As recently as 1902, in the Treaty of Santiago between Argentina and Chile, the parties followed a practice that was common in South America during the 19th century by naming “His Britannic Majesty’s Government” to be the arbitrator in any dispute between them arising out of the treaty. When the simmering Beagle Channel

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dispute between these two neighboring countries erupted anew in the 1960’s, the nomination of 1902 resulted in the appointment of an arbitration tribunal by the UK government, which in turn resulted in an embarrassing failure until the meditational talent of Cardinal Samore proved the eﬃcacy of papal intervention (Johnston, 1988). The earliest recorded use of arbitration in the Near East was the resolution of the Persian succession issue between Xerxes and Ariamenus, the favorite sons of Darius, in the year of his death (486 B.C.). Artaphernes, the brother of Darius, awarded in favor of Xerxes. Later, after persuading his fellow Persians to release their grip on the Ionians or Greeks of Asia Minor, Artaphernes is said to have compelled the Greek city-states to sign a treaty obligating them in perpetuity to settle their internal disputes – their disputes with one another – through arbitration instead of war (Ralston, 1972; Gevrehanna, 1984). The Greek city-state system was congenial to this famous experiment, since all members shared the same gods and the same honor-based culture, and to some extent faced the same external threats that compelled a degree of cooperation among the normally disputatious cities. However, the city-states were frequently at odds over the uses of arbitration. Some rulers – including the most warlike such as Philip of Macedon – were credited with a willingness to arbitrate even when their armies were standing by. Sparta, on the other hand, true to its warrior ethos, often rejected arbitration, especially with Athens, its distrusted enemy. On the whole, however, the Greek city-state system was relatively congenial to experiments in arbitration as an alternative to war (Taube, 1932). Similar conditions conducive to inter-state arbitration would not return until the Middle Ages in Western Europe and later in South America. Given the territorial obsession of the Greeks, it is not surprising to learn that many of their arbitrations dealt with territorial disputes over boundary lines and contested islands, just like the Beagle Channel dispute between Argentina and Chile between 1967 and 1984. Occasionally the oracle at Delphi was deployed for the beneﬁt of Greek disputants, but more frequently they called upon one of the most distinguished citizens of a third party state, often a statesman, soldier, scholar, poet, or even athlete of particular distinction. For example, Themistocles, the Greek soldier-statesman-hero of the Persian wars, was chosen to arbitrate a serious dispute between the Corinthians and the Corcyraeans before his disgrace and ultimate demise around 455 B.C. (Morris, 1911). Ralston (1972) observes that the Greek reverence for arbitration was so strongly rooted in their civilization that they assumed its existence among the gods. We are told that the 100-handed god Briareus – an even-handed giant – served to arbitrate a territorial dispute between Poseidon and Helios. Apparently this display of divine justice conﬁrmed the Corinthians in their belief that the isthmus belonged to Poseidon. It might be noted that territorial disputes between Greece and Turkey today continue to disrupt their prickly relationship in the Eastern Aegean Sea, where god sharing is noticeably absent (Chircop, 2000). One of the most striking aspects of the Greek arbitration system is the principle of equality upon which it rests. Obviously the smaller and weaker members of the system had most reason to prefer arbitration to war for the settlement of disputes, but from the middle of the 7th century B.C. it seems to have become accepted as the

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honorable course of action by large and small alike. However, the practice was not totally uniform. The obligation to resort to arbitration seems to have been accepted more consistently in the case of disputes involving cities of the same league, such as the Aetolian or Achaean League, than in the case of inter-league conﬂicts. “Compromissory clauses”, whereby the parties undertook to use arbitration instead of force in the event of a subsequent dispute, became a fairly common feature of ancient Greek treaties. Early examples were the treaties of 444 B.C. and 421 B.C. between Sparta and Athens and the treaty of peace concluded by Sparta and Argos in 418 B.C. It is not clear what role was played by the Amphictyonic Council in Greek arbitration. It might have been limited to religious disputes. Various methods were used to select an arbitrator or an arbitration tribunal. In the absence of a compromis, the choice was left to the parties. Although the variety of inter-state arbitration, as well as commercial arbitration, has increased in modern times, the tendency has been to give the parties a degree of control over both the nomination of arbitrator and the procedure to be followed, in contrast with alternative resort to a judicial institution. It is believed that the international arbitral process developed by the Greeks was taken extremely seriously. Formality attended every step along the way, and clearly an impressive degree of adjudicative integrity was invested in the eﬀort to secure an equitable outcome. Although the Greek system of arbitration never became a truly obligatory regime, it did present the world with a workable model of third party adjudication that was ahead of its time and would not be matched thereafter for two thousand years. Legal Development. Although the Greeks, like others before them, assumed that law in general had a divine sanction, reﬂecting the will of the gods, speciﬁc laws were understood to be derived historically from ancient customs. Indeed the Greeks prepared the way for the Roman conception of “natural law” derived from custom, which will be seen to be the ﬁrst seed in the seminal notion of the “law of nations” (ius gentium). Yet neither Aristotle nor any other Greek philosopher was able to resolve the dilemma that arises from conﬂict between the custom-based laws of man and the unwritten laws of the gods. Despite their pre-eminence in most intellectual domains, the ancient Greeks had no particular interest in building legal institutions. We look in vain for any body of professional expertise that could be seen as the nucleus of a legal profession. Their philosophers did not consider law, as distinct from government or justice, to be worthy of study (Diamond, 1971). They had little taste for jurisprudence. Despite the Athenians’ reputation for litigiousness, which may have been exaggerated, they did not ﬁnd it necessary to respond to civic crises and private quarrels by developing a legal system. Yet, through later Roman inﬂuences, the ancient Greeks did make three contributions to modern legal development: through their concepts of justice, their development of jury trial, and their secularization of law. We all think of the conceptualization of “justice” as one of the most valuable legacies of the classical Greek system of civilization. The love of justice, as we have noted, was never far from the center of the Greek intellectuals’ obsession with civic en-

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lightenment and personal virtue. Plato was not alone in identifying the cultivation of justice as the chief task of education. The theme of justice runs as a highly durable thread through the fabric of Greek literature (Havelock, 1978). Almost as salient was the Greek obsession with juries. Athens in particular elevated lay juries as the machinery for the administration of justice. Perhaps nowhere else in world history, before or after the age of classical Greece, has any polity placed so much trust in the fairness and wisdom of ordinary citizens, equally in civil and criminal proceedings. This tradition of popular adjudication goes back much further than the rise of the philosophers and political theorists associated with the ideal of democracy. In Homer we see the origins of the Greek concept of people’s justice: “the parties plead their cause before the assembly of freemen; the chief presides as umpire; then the wise elders, skilled in the law propose various judgments; then the freemen acclaim the best one and thus decide the case” (Wigmore, vol. I, 1928). In Aristophanes’ comedy The Clouds, a visitor, looking down, has diﬃculty in recognizing the city of Athens: “I don’t believe it, for I see no juries sitting.” However, it is the third of the three Greek contributions to legal development – the secularization of law – that resonates more vibrantly through the subsequent rise of international law. The Greek intellectuals saw no necessity to involve their gods in the day-to-day administration of justice. Law, it was agreed, was largely a secular matter, embedded in politics, rather than a branch of theology or morality. Litigants and accused at trial were, therefore, vulnerable to the political emotions at sway, as Socrates was well aware in his ﬁnal ordeal at the hands of the democrats he chose to ridicule (Stone, 1989). Being politically inﬂuenced, the Greek legal culture lacked the sharp edge of technicality. Clear distinctions were elusive, even that between matters of law and matters of fact, as later deemed essential within the precise, orderly, and formalistic system of Roman law. Reﬂections. Although not noted as great innovators in legal development, the ancient Greeks had some inﬂuence on the future shaping of international law, principally in six ways. They created a system of more-or-less equal city-states, which had some of the characteristics of the modern world system of nation-states; they tried, with some success, to maintain a tradition of treaty-making within that system; they experimented, oﬀ and on, with inter-state arbitration in lieu of warfare; they recognized the need to accord special protection to envoys and other diplomatic or consular representatives; they experimented with international leagues for a variety of diplomatic and religious purposes; and they administered domestic justice through a secularized, politicized process. In at least a rudimentary way, they contributed to the state autonomy, order (system-maintenance), cooperation, conﬂict resolution, and war prevention-and-management models of world law. Others have found in the Greek or Hellenic leagues the origins of federalism, and thus of the constitutional model of international law. Of the sixteen or more “federations” of those city-states, the longest lasting was the Achaean League. Most may not have been intended to be permanent; the evidence of such arrangements is fragile, as it is for the constituent parts (Ehrenberg, 1969). One American scholar has suggested that a true federation would have to satisfy seven tests: common citizenship; division

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of powers; central legislature and full-time executive; central authority in matters affecting war and peace; autonomy of the individual city-states in all other matters of governance; equal representation of the states in the central assembly; and a permanent founding treaty. Even the Achaean League, the leading Greek candidate, would have trouble qualifying on the basis of these criteria (Davis, 1978). II

The Romans

In virtually all practical, technical and professional aspects of human aﬀairs, the contributions of Rome have dazzled students of history down the ages. In legal, administrative, ﬁnancial, engineering, construction and, of course, military skills, the Romans achieved standards of excellence above any previous civilization and any that followed up to the 18th century A.D. The darkness of the Dark Ages that descended on the Western world after the Goths’ taking of the great city in 410 A.D. is posterity’s way of measuring the glory of Rome. First of all the Romans’ accomplishments was their building of the “greatest structure of political power that the western world has yet seen” (Payne, 2001). At its furthest extent, it stretched from central Scotland to North Africa, and from the Straits of Gibraltar to the Black Sea. It is easily the longest-lasting civilization of the Western world since that of ancient Egypt, surviving in its Eastern identity until the 15th century A.D. It continues to be a pervasive inﬂuence on virtually the entire world in numerous ways, through language, law, public works, and its traditions of eﬃcient governance, public service and personal honor. In many ways, of course, the Romans were the beneﬁciaries of the Greeks who preceded them. Most well-educated Roman boys, in particular, were privately tutored by Greek slave-scholars. But their own contribution to world history was so great that it seems obligatory to treat the Romans as a separate, if cognate, system of civilization. The direct predecessors of Roman civilization were the Etruscans, who in the 6th century B.C. dominated the region of Italy between the rivers Tiber and Arno to the west and south of the Apennines (Barker and Rasmussen, 1998). No one knows whether the Etruscans were always indigenous to Italy or were descendants of the Lydians of the Near East, as believed by the Greek historian Herodotus. Roman historians accepted the view that the Etruscans were of Asian origin, and that their ancestors were the ﬁrst people to engage in retail trading and also the ﬁrst to mint gold and silver coins. At least it is certain that their economy was built on copper, iron, and other metals and minerals. By the 8th century B.C. they had organized themselves politically as a “league” of small independent city-states of considerable wealth, and were admired by the Greeks, with whom they had much in common. The Etruscan inﬂuence was huge on the softer side of Roman culture: in religion, medicine, music, art and architecture, racial tolerance, and the love of luxury (Grant, 1980). Ironically, these attractive people may have played a part in inﬂuencing the Romans to cultivate a tougher, more self-demanding and self-sacriﬁcing way of life and a much more energetic political ethos. The imprint of the Etruscan heritage on Roman civilization is reﬂected in many ways. “One was the way she organized her people in ‘centuries’ for military purposes;

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more superﬁcial but striking instances were her gladiatorial games, civic triumphs and reading of auguries – a consultation of the entrails of sacriﬁces in order to discern the shape of the future” (Roberts, 1995). The Roman admiration for courage may owe something to the model of their other famous neighbors to the east, the Sabines, with whom they shared a system of dual rule in their earliest period. The experience of dual rule became a prominent feature of Republican Rome, found necessary as a safeguard against the threat of tyranny. The Sabines, unlike the Etruscans, were naturally steeled to self-denial and moderate in behavior, except in battle where they displayed an awesome ferocity. Above all, of course, the Romans were inspired by the Greek example of excellence. Greek colonists had been ﬁrmly and proﬁtably established to the south since the 8th century B.C. The 5th century B.C. was a period marked by continual struggles for power in the Western Mediterranean, pitting the artistically gifted, socially liberal, and sexually indulgent, Etruscans against the hard men of Rome, the ambitious traders of Carthage, and the “Western Greeks”. The decline of Etruscan civilization in the 5th century B.C. coincided, of course, with the rise of their robust neighbors in and around the city of Rome. By then the decline of the “Western Greeks” had begun, leaving Carthage as Rome’s most formidable opponent in the region (Sinnigen and Boak, 1977). With their victory over a coalition of Gauls, Samnites and other rivals in 295 B.C., Rome ﬁnally gained revenge for the destruction of their city by the Gauls a century earlier. Soon the Romans would gain ascendancy over the entire peninsula and the Western Mediterranean, though not without their share of military defeats and humiliations. “Italic history” in the region would now give way to “early Roman history” (Pallottino, 1991). For the next 900 years the history of most countries of Europe, North Africa, and the Near East would be deeply aﬀected by their relations with Rome. The Age of Roman Hegemony is the most remarkable period of sustained power holding in world history. Throughout most of this dramatic and creative phase of civilization, Rome attained paramountcy in virtually every sector of human society. Over the centuries since then, great empires have risen and fallen. Even the British Empire, the most extensive of all, lasted less than 400 years and its inﬂuence on the world is unlikely to be so durable. Today it is the phenomenon of the American “hyperpower” that seems to oﬀer the closest analogy to Rome of the ancient world. So we have particular reason to examine how Rome responded to the emergence of international comity and the heritage of Greece as an agency of civilization. Questions. The Romans were the most eﬃcient and most successful conquerors in world history. On the other hand, they are equally famous for their legal and civic skills. So just how central were the Roman contributions to international law, the principal ethic opposed to war? Can we overlook the excesses of Roman rule in the world of antiquity? Can they be credited with developing the ﬁrst “world system” of trade and communication. Did their intellectuals see more clearly than their Greek mentors the possibilities of a future legal system for all nations? As creators of the world’s most durable legal culture, should they also be acknowledged as the progeni-

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tors of world law? Above all, what can we learn from the Roman experience as the ﬁrst global “hyperpower”, as we observe the behavior of the third? Conquest, Rule and Culture. Despite their pre-eminence in the assertion of power and authority, the Romans were usually in a state of war with someone. Even during the celebrated pax Romana in the ﬁrst two centuries of the Empire, they had to maintain the largest standing army in the history of antiquity. They had to expend huge funds on arms and strategic public works, a burden that was eventually to overstrain the economy and bring the empire crashing down, despite the absence of a rival superpower, like the United States that overspent the resources of the Soviet Union in the ﬁnal years of the 20th century. The Romans must have been ambivalent about Alexander, a Macedonian marvel of military leadership with the capacity to achieve the ultimate goal of world conquest, and yet unable to create a lasting foundation for his empire. Perhaps they regarded him as a ﬂawed hero, the victim of his own cosmopolitan fascination with the peoples he conquered. The Roman generals were cast in a diﬀerent mold, surprisingly indiﬀerent to the world at their feet, with the arguable exception of Julius Caesar. But Rome’s imperial success had less to do with leadership than with the infusion of an extraordinarily energetic culture. The Roman commitment to a life of conquest was based on a collective will to master the world, whatever sacriﬁces might be involved (Sowell, 2001). Time and again, the Romans displayed an ability in combat to disregard the factor of numerical disadvantage. But does their behavior on the battleﬁeld justify their reputation as an agency of civilization? What contribution did their policy or practice make to the development of the laws of war? Roman orators and historians consistently maintained that there had to be a just cause (iusta causa) for resort to war: a wrong to be avenged or the necessity to defend themselves from a menacing enemy. Almost all leaders of the Roman Republic used the rhetoric of just cause to prove the moral superiority of Rome. Yet “Roman rhetoric and actual practice were sometimes diﬃcult to reconcile. The Romans clearly valued the moral high ground that a proper casus belli granted to them. They regarded it as a signal feature of their international relations and what made them special as a state” (Bederman, 2001). Like the Greeks, the Romans accepted that there had to be a legal or moral rationale for resort to war (ius ad bellum). Frequently scholars have described the Roman procedure in transactional terms, as if validity depended on observance of the principle of good faith (bona ﬁdes) and on conformity with the requirements of legal formality. Cicero, the famous orator and statesman at the time of Julius Caesar, wrote that “no war is just, unless it is entered upon after an oﬃcial demand for satisfaction has been submitted, or warning has been given and a formal declaration made” (Cicero, De Oﬃcio). The Roman concept of just war (iustum bellum) has been illustrated by reference to the famous defeat of Rome by the Samnites at the Caudine Forks, during the period of Roman expansion in central Italy in the 4th century B.C. According to Livy, the original cause for Rome’s declaration of war was just: the Samnites had been guilty of numerous violations of an old treaty of alliance (foedus) with Rome, refused

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to make restitution, and rejected an unusually generous Roman oﬀer of arbitration. As the war ﬁrst went badly for them, the Samnites oﬀered to give up the body of their dead leader, Brutulus Papius, as a surrender (deditio) in satisfaction of the broken foedus, but the Romans, “sensing advantage, refused to grant the Samnites peace except under the harshest terms”. Thereafter, Livy insists, the moral advantage shifted to the Samnites. By refusing the deditio, the Romans were guilty of undue pride (superbia), and, supposedly as a consequence of natural justice, they failed to carry the day on the ﬁeld of Caudine Forks. Later in the war, however, as the moral advantage was restored to the Romans, victory for Rome resumed its predictable course (Holland, 2004). Other kinds of breaches of obligation were believed by the Romans to justify resort to war. During the early Roman Republic a violation of a Roman ambassador’s personal sanctity was certainly a cause of just war (casus belli), and after its successful conclusion of the Second Punic War with Carthage, around 200 B.C., Rome was strong enough to insist on strict compliance on the part of their treaty partners. Defection to the enemy by a state that was bound by treaty to alliance with Rome was also deemed to be a just reason for resort to military sanction (Bederman, 2001). A sense of moral superiority also colored the Romans’ perception of their obligations under the rules governing the conduct of warfare (ius in bello). Unlike the Greeks, who professed to accept these rules as universal and absolute, the Romans adopted a relativist view of the matter, excusing their own transgressions as justiﬁed in the face of outrageous barbarism on the enemy’s part. Rome’s implacable hostility to Carthage was invariably explained by reference to brutal and senseless Carthaginian violations of the laws and customs of war. No one within the city limits of Rome seemed prepared, at least publicly, to look upon the economic or geopolitical competition between these two powers as the true cause of war. Part of the problem of evaluating the Romans’ record under the ius in bello lies in their almost constant immersion in warfare over so many hundreds of years. We, posterity, are the victim of conﬂicting images. The history of Roman warfare seems extraordinarily variable, ranging from an almost noble restraint, at best, to a calculated indulgence in slaughter at worst. Let us look at a famous example of the worst: the pitiless destruction of Carthage in 201 B.C. The long history of the Punic Wars between Rome and Carthage (264-241 B.C. and 218-201 B.C.) was disﬁgured by atrocities on both sides. It was also dramatized by the participation of some of the most arresting ﬁgures of antiquity, such as the exemplary Scipio Africanus (Publius Cornelius Scipio) on the Roman side, and the brutal but brilliant Hannibal on the other (Grant, 1979). These and other famous commanders fascinate us today, even as we are repelled by the horror of ancient warfare. But the Punic Wars were a special case. Both Rome and Carthage were formidable powers, committed alike to a policy of domination. There could be no thought of permanent cooperation or compromise with the rival. The occasional treaty of peace served as a tactical maneuver, but as a strategy it would have been a betrayal of national honor. The biggest frustration for the Carthaginian leaders was that they were confronting the greatest patriots of antiquity.

Universal Order in Classical Antiquity

The sternest patriot of them all was Marcus Portius Cato (234-149 B.C.), who controlled the Roman war machine for over four decades. The modern reader ﬁnds it diﬃcult to warm up to Cato. Many of his contemporaries had the same diﬃculty. Almost all historians have chosen to side with his political enemy, Scipio Africanus, and to make of him an icon of Roman nobility. He was “one of those rare men who combines so many virtues that the man himself seems to vanish and become a copy-book maxim. All the gifts were showered on him. Wealthy, well born, violently courageous, at times calmly meditative, scholarly, and deeply religious, believing himself close to the gods, he went through life as though he were in a dream” (Payne, 2001). In almost any other advanced culture a leader as gifted and admirable as Scipio would certainly have ﬂourished. That he did not is attributable to what we might regard as the darker side of Roman culture. Cato, the “shrewd one”, was a man of humble birth, who could turn to political advantage a remarkable gift for oratory – a talent that impressed even Cicero in a later age. Cato’s rough, non-patrician style moved a Roman audience that was disturbingly susceptible to super-patriotic and super-moralistic fervor. When he was appointed Censor in 184 B.C., he acquired immense inﬂuence over public morals and the disposition of oﬃces and funds. In eﬀect he made himself the “puritanical policeman” of Rome. He succeeded in this diﬃcult mission by appealing to the chauvinism of the citizens of Rome, who were always ready to loathe foreigners. In particular, they despised the liberalism of their Greek heritage and the Hellenists in their midst such as the Scipio family. Cato became the most powerful politician in Rome through his brilliance in exploiting the conﬂicting interests of the rich and the poor. Though a master of political control, he was always careful to appear totally scrupulous in keeping within the demanding limits of the law. Cato’s iron ﬁst ensured order, the basis of Roman wealth and the protector of oligarchic privilege. Yet through law he kept a tighter rein on power-holders than any political system, at least up to the late 18th century A.D. in America and a few other, mostly European, democracies (Grant, 1979). The clash between pro-Greek and anti-Greek Romans was mirrored, of course, by the division between pro-Roman and anti-Roman Greeks. The extirpation of Carthage was carried out on the orders of the Senate, still in thrall to the late departed Cato. Ironically, it fell to another Hellenized Scipio (Scipio Aemilianus Africanus, Minor) – the great man’s adopted grandson – to display a Roman soldier’s obedience to superior orders, however distasteful. The young Scipio, it is related, watched the gruesome scene impassively, and then, “[i]n the manner of a well bred Roman he recited lines of Homer and wept a little” (Payne, 2001). These Greeks who admired the best of Rome were even more appalled than their anti-Roman compatriots. The Romans’ conduct on the battleﬁeld improved after their victory in the Punic Wars assured them of mastery over the Western Mediterranean, and later, of course, over a vastly greater dominion. Roman victory in battle was rarely assured for more than a decade or two, but their geopolitical supremacy remained for hundreds of years. The primacy of Rome as a great civilization for so many centuries, despite almost constant challenges, is diﬃcult to explain without reference to culture (Sowell, 2001). The ethical standards they set for themselves seem prescribed by their own need for cultural self-esteem. Romans “knew” they were a morally superior people,

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entitled to the prerogatives of Roman exceptionalism when imperial considerations governed the strategy behind the campaign. Armed with the moral superiority of their system of civilization, the Romans had felt no need to codify the rudimentary laws of war passed down by their Greek slaves and tutors. The ancient Romans are not noted for self-doubt. Cultural conﬁdence seems to explain the looseness of their system of rule over most of the peoples they conquered, a colonial regime that was sometimes more nominal than actual. Rare was the Roman administrator, however able, who developed an expert’s command of the local language and culture. The image of a sophisticated but incurious Pontius Pilate, understandably distorted in Christian scriptures, oﬀers a contrast with the most sophisticated and ablest of British colonial administrators, such as Curzon, Lytton and Raﬄes whose mastery of local languages and cultures did not undermine their patriotic faith in the virtue and merit of British rule. Other, less gifted, colonial administrators such as Mayo and Minton acquired a respect and aﬀection for their subjects that grew out of knowledge and close contact. The Romans, on the other hand, seem to have had little, if any, sense that a knowledge of lesser cultures might serve their imperial interest. Insurrection would simply guarantee, in due course, a crushing retribution that would reaﬃrm the supremacy of Roman authority. As masters of the known universe, the Romans had little need for treaties or international arbitration (Nussbaum, 1953). The Founding of Legal Order. Rome’s contribution to law was seminal. In developing the world’s ﬁrst, and arguably greatest, system of formal law and legal institutions, it created a model of internal order, coherence and equity that is still a powerful inﬂuence on the building of “rule-of-law” societies. The Roman genius for legal creativity was applied principally – not exclusively – to the domestic sphere of “private law” and to the commercial sector. Rome was by far the most litigious of the early systems of civilization. In the late Republic and early Empire, upper-class men from wealthy families had an obsession with the practice of law, much as their Greek counterparts had been seduced by philosophy. The “active rich”, scorning the grubbiness of trade, accepted the practical challenges of public life: politics, law, and military service. The ablest of high-born young men, like Julius Caesar, often served the state with distinction in all three of these sectors. For the ancient Romans, Tom Holland (2004) suggests, law was “the only intellectual activity that they felt entitled them to sneer at the Greeks … In childhood, boys would train their minds for the practice of law with the same single-minded intensity that they brought to the training of their bodies for warfare. In adulthood, legal practice was the one civilian profession that a senator regarded as worthy of his dignity”. Not surprisingly, scholars have had diﬃculty in ﬁnding the origins of formal law in the history of early Rome. The legend of Romulus, the city’s founder, attributes to him the creation of a tradition of law-based government. From those undocumented times, it is supposed, the patricians accepted responsibility as “patrons” for their plebeian “clients”, including the duty of adjudicating disputes among them. Within the Republican tradition, advocates and jurists (jurisconsults) continued to oﬀer their services without payment, in the same manner as political oﬃce-holders. Even gifts

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from grateful clients, after a successful suit, were considered improper, even though they had no bearing on the outcome. Rome was a hierarchical society, and most historians agree that the famous Twelve Tables was, most probably, the product of class conﬂict. At some point, the primitive tradition of self-help must have yielded – gradually, one assumes – to “a pure system of objective judicial decision” (Kelly, 1966). It seems likely that by the mid 5th century B.C. the Greek colonies in Southern Italy had made known to the Romans further north the promulgation of Solon’s code 150 years earlier: the precedent of published formal law (Wolﬀ, 1951). Livy might be believed, without proof, that a tribune of plebeians, led by Gaius Terentilius Harsa, proposed the establishment of a commission of ﬁve men to write a code of laws, which would be binding on all, including the Consuls, the holders of the highest political oﬃce in early, post-monarchical Rome. The existing system, based on patrician privilege, was almost certainly resented by the plebeians, since, according to Livy, they had “accepted two masters instead of one, who have inﬁnite and uncontrolled power and … turn the fear of the law and all tortures on the common people” (Watson, Alan, 1970). Reluctantly, it seems, the patricians acceded to the plebeians’ demand for transparency. It is possible, as often claimed but also denied, that a delegation of elected Romans did actually visit Athens in 454 B.C. to verify the tradition, if not the text, of the Attic code of Solon. The date of the Twelve Tables is highly uncertain. Some have suggested as early as 451 B.C., others as late as 300 B.C. or even 200 B.C. No one knows when or how the ﬁrst Roman code was destroyed. Yet there is little argument over its iconic signiﬁcance. Despite the degree of historic vagueness, the Tables are the ﬁrst codiﬁcation of Western European law, and the only oﬃcial codiﬁcation of Roman law before the age of Justinian in the 6th century AD. Although far from comprehensive, and often concerned with the unusual, rather than the normal, situation, the code was apparently, as Watson suggests, an impressive early example of brevity, clarity and simplicity – characteristics that cannot always be fairly demanded of law. Its impact on the future development of Roman law was enormous, keeping alive the formalistic ideal of classical perfection through codiﬁcation, not only in the municipal systems of civil law descended from Rome but also in the modern system of international law. As Grant (1979) notes, the Tables after their disappearance were “meticulously reconstructed and remained legally valid. Indeed, they were traditionally seen, with a measure of respectful exaggeration, as the source of much or most of the whole body of Roman law; and for century after century they retained a dominant position in the education of every Roman citizen”. Ironically, the Twelve Tables were not well received by the plebeians. Although it is not known to what extent the exercise was expected to be reformist in spirit, the code produced by the ﬁnal ten drafters (decemvirs) was rather a restatement of the status quo, made public. The two ﬁnal Tables, added belatedly, were particularly unpopular, not least because of the conﬁrmation of the ban on marriage between patricians and plebeians attributed to the lex Canuleia of 445 B.C. In short, the famous code was

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based on existing customs, “largely a statement of long-observed principles sanctioned by immemorial customs” (Wolﬀ, 1951). For better or worse, the Twelve Tables were the foundation of Roman legal traditionalism, the embodiment of social stability under a common law. For the Romans, “the authority of their law was rooted in the mores maiorum, the ways of the forebears. Their legal rules and institutions were part of the very life of the nation. They might be added to and molded into something new, they might be allowed to fall into disuse when obsolete, but they could not be simply and arbitrarily abolished and replaced by something else”. By the same token, the tradition of legal conservatism inspired by the Twelve Tables is associated also with the preservation of rigid formalism, which can choke oﬀ the breath of social change. The Beneﬁts and Burdens of Roman Bureaucracy. The expansion of Roman power and inﬂuence during the Republican period created the necessity for a large and eﬀective system of administration. Military success depended not only on a strict disciplinary regime within the armies of Rome, but also on an eﬃcient bureaucracy that was, generally, expected to conform to a high standard of public service. The conquered territories throughout the Mediterranean were linked to Rome in various ways. Those closest to the city, with a cultural and linguistic aﬃnity, were annexed. Residents of these countries acquired the beneﬁts of representation in the legislative assemblies and access to public oﬃce, but also the civic responsibility of Roman citizens, such as the obligation to pay taxes and to follow the colors of Rome on the battleﬁeld. This was the pattern throughout the Italian peninsula by the mid3rd century B.C. More distant Latin peoples were granted a more limited franchise; and non-Latin peoples who had been brought into a dependent relationship with Rome (the socii) were bound under the terms of the treaty of settlement that applied to their territory. Most of the power at the center of the early Roman Republic was shared between two Praetors (later Consuls) of equal authority, who held joint oﬃce as the heads of state for a year. A dual system of this kind seems to posterity a recipe for anarchy, since each had the power to veto the other, but on the whole it worked. This ﬂux built into the leadership of the government ensured that considerable civic inﬂuence was acquired by the Senate (Senatus), a council of elders drawn from the leading patrician families, although technically its function was advisory. However, as the tradition of democracy took shape in the early Republic, increasing deference had to be given to a popular assembly, the Comitia Curiata, to preserve the appearance that the ultimate sovereignty of the Republic lay in the people. In practice, the Roman government system of that era evolved as a complicated, and frequently shifting, system of checks and balances between the patricians and the plebeians. The former retained all the advantages of wealth, education, and social prestige, but the ordinary people acquired signiﬁcant inﬂuence through their own representatives, the Tribunes and their appointees (such as the Aediles), who had the power to protect the plebs from unduly harsh application of magisterial authority within the system of Roman public law. The Tribunes alone could not be overruled by the Consuls. By the 4th century B.C., other popular assemblies were set up, such

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as the Comitia Centuriata, but eventually it was the Consilium Plebes, appointed by the plebs, that acquired the sole authority to pass laws that were binding on the whole community of Rome. Day-to-day administration of the Roman Republic was directed by the Consuls through a framework of specialized oﬃces. The Censors assessed taxes and chose new members of the Senate; the Praetors controlled the legal system and presided over the judiciary, with a view to ensuring fair and consistent rulings and interpretations; the Aediles supervised municipal aﬀairs; and the Quaestors specialized in public ﬁnance. Most of these magistrates in the early Republic were patricians, but plebeian oﬃcials became more common in the later period. As public administration became more complicated, it became necessary in due course to recruit staﬀs and scribes with the capacity to attain a high level of competence, certainly the highest standard at that time that the Western world had seen. Remarkably, this complex system of public administration worked well. Controversies, of course, were not infrequent and sometimes dangerous enough to cause alarm, but, unlike the Greeks, the Romans were able to foster a tradition of eﬃcient and orderly government. The Senate made an important contribution by providing mechanisms for coordination that were lacking in the formal, atomized system of public administration (Gladden, 1972). The superiority of Roman law and government in the Republican era did nothing to keep the Romans humble and lovable, but it provided the foundation for modern expectations of honest and eﬀective bureaucracy throughout the Western world and beyond. However, various events in the ﬁnal century of the Roman Republic added to the burdens resting on its administrators. Problems at home were aggravated by new political and social tensions, including slave uprisings. Corruption and waste in the public sector had reached scandalous proportions by the early decades of the 1st century B.C. Increasingly the polity was wracked by discord between the populists and legalists, who usually found common cause, and, on the other hand, those like Julius Caesar (100-44 B.C.) and his associates, who saw in the turbulence of the times the need for a ﬁrmer hand, a more eﬃcient public system, even if it involved the abridgement of certain traditional rights and caused oﬀence to republican idealists. The increasingly autocratic power of Caesar provoked a confrontation with his critics that resulted in his famous assassination. It was Caesar’s successors, however, who prevailed, converting the Republic into a formal Empire, whose constitutional structure was designed to support the imperial presence throughout the huge region captured by Roman force of arms. The immensity of the Roman Empire made heavy demands on its system of government. After Gaius Octavius Augustus (63 B.C.-14 A.D.) the Senate experienced ﬂuctuating fortunes. The emperor, as head of state (princeps), gathered more power than the Consuls of the past, undivided and almost absolute. But very few of the emperors were free from intrigue on all sides. Many owed their throne to the praetorian guard, and therefore could be, and sometimes were, ousted in the same fashion. The quality of imperial rule varied from the excellent to the abysmal. It is the record of the best, the “Five Good Emperors”, that we should remember with gratitude. Emperors Nerva (30-98 A.D.), Trajan (53-117 A.D.), Hadrian (76-138 A.D.), Antoninus Pius (86-

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161 A.D.), and the philosopher-king Marcus Aurelius (121-180 A.D.), reigning successively between 96 and 180 A.D., set a high standard in administrative diligence and civic responsibility. During this golden period, the Roman bureaucracy grew enormously. By this time Rome had become responsible for a total population of perhaps over 25 million. In the city itself and beyond, it was an age of spectacular public works and programs, producing remarkable roads, canals, bridges, aqueducts, water supply and ﬁre control networks, police systems, grain distribution doles, libraries, public baths, and pension arrangements for veterans of the army. Signiﬁcant improvements were eﬀected for tax collection and other aspects of public ﬁnance. Numerous new agencies were established, creating a large, multi-layered, professional elite that kept the Empire on a steady keel through dangerous political and social storms. Like most of the other great bureaucracies of world history, the Roman system was the principal stabilizer in society. It was, of course, a target of criticism from intellectuals of the day, who, like many intellectuals since then, were free to criticize the institutions of the state without having to share the burden of civic responsibility. One of the important contributions of the Roman imperial bureaucracy was the preservation and expansion of an oﬃcial gazette to record the acts and decisions of government, building on the gazette procedure introduced by Julius Caesar as Consul to publicize the work of the Senate. Public accountancy, on the other hand, remained at a primitive level: for example, there is no evidence that the Romans imagined the beneﬁts of double-entry bookkeeping. It would be left to the Arabs at a later date to solve the problem of maintaining accurate ﬁnancial records (Gladden, 1971). Continuity in public administration was achieved by encouraging sons to follow their fathers’ career in the Roman civil service. This practice was consistent with the policy of compelling families to specialize in certain trades and professions, especially those deemed to be of strategic importance to the state, such as shippers and bakers. According to Edward Arthur Thompson, the members of all trade gilds in the 4th century A.D. were tied to their jobs by legal requirement, and state factories were kept going through a practice of branding the workers, so as to facilitate the recapture of fugitives. Although the economy of the later Empire was chieﬂy based on private enterprise, it continued to be rigorously controlled by the state to a degree unknown in other civilizations. Many specialists in Roman history have disagreed with Edward Gibbon’s famously independent analysis of the decline and fall of the Empire (Gibbon). It was developed prodigiously without consulting other historians or Greek and other non-Latin sources. Chieﬂy he has been criticized for his aversion to religion, and for underestimating the durability of the Roman heritage in the East after the “fall” of the Empire in the West in the early 5th century. Yet there is little disagreement that the decline of Rome had much to do, as Gibbon shows, with the impossible weight that the Roman bureaucracy was eventually expected to carry. In no other history are the perils of administrative overreach more clearly revealed. It is a lesson that has often been forgotten by later ambitious states and empires.

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Trade, Empire-Building and Judicial Settlement. As we look back at the sweep of Roman history, few features of that period are more striking than Rome’s success in achieving control over virtually all the commercial centers of the Mediterranean, the Near East and Northern Africa. Much of this process of empire building was carried out expeditiously in the ﬁnal century of the Roman Republic, before the establishment of the formal institution of Empire at home. As an urban, wealth-production system, the Roman commercial empire would not be matched until the peak of the British Empire at the end of the 19th century, when cheap labor became possible without a slave market because of the inventiveness of modern science and technology. Historians diﬀer on just how peaceful the Roman world was by the time Augustus (63 B.C.-A.D. 14) had defeated all his challengers. In the 200 years that followed his accession to power in 27 B.C., “behind a façade of republican piety”, there were still occasional shocks to the Romans’ conﬁdence in their own supremacy, such as the destruction of three legions by Teutonic tribes led by Arminius in A.D. 9. Moreover, Rome would discover, as it continued to expand its Empire, that there were limits to what even its all-conquering armies could hold down by force. Yet the extent of relative peace and order during their vaunted pax Romana was far greater than anything that had existed before in the course of world history (Roberts, 1995). Achieved by military arms but maintained by a common law and central administration, the Roman peace was a period of extraordinary growth in prosperity. Trade routes branched out in all directions. Merchants enjoyed the luxury of access to an unprecedented range of products that could be brought to the urban centers from an ever-widening universe, and yet under protection of a single system of public safety. Rome by the early Empire had become extremely cosmopolitan, run by a multi-ethnical elite of well educated, mostly bilingual, racially tolerant, citizens that included many merchants of wealth and respectability. More than any other civilization, Rome could be said to have laid the foundations of international trade. Almost all of the Mediterranean commercial centers were patterned after the mother-city of Rome itself. They consisted of cosmopolitan populations attracted by the allure of aﬄuence. They were governed by local elites who were permitted to maintain a high degree of independence, so long as they maintained order and continued to deliver the revenues demanded by Rome. The cities of the Mediterranean were operated by a rising class of commercially and technically skilled businessmen and artisans. Not least, they were serviced cheaply by various kinds of slaves, who were mostly the victims of displacement within a vast and constantly expanding empire shaped by the overriding phenomenon of military conquest. Yet, in the eye of the economic historian, “foreign” trade was a relatively insigniﬁcant sector of the Roman economy. In the economic system dominated by Rome, the wealthy derived their prosperity from the rents taken from their family lands. Ancient Roman law was agrarian rather than urban in origin and quite unsuited to commerce (Levy, 1967). Throughout most of the Republic it excluded all slaves (the chief source of labor), all foreigners, and even any son within a family whose pater familias was still living. It was not until the 2nd and 1st centuries B.C. that the realities

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of trade were reﬂected in Roman law through reforms instituted by the praetors that recognized the transactional roles played by sons, slaves and foreigners. After the mid-3rd century B.C., most of the wealth pouring into Rome from outside was in the form of indemnities demanded from conquered enemies, booty from the battleﬁeld, proceeds from mines, and, of course, taxation raised by the provinces (Jones, 1974). Most of the wealthy merchants in early Rome were non-Romans from Southern Italy, Greece, and Asia Minor. Lesser trade was conducted mostly by freedmen, who found their knowledge of at least one foreign language to be a business asset. Those Roman citizens who did take up business were often “greedy and brutal rather than clever” (Levy, 1967). Upper-class Romans were likely to look down on trade as an ignoble pursuit. Indeed revulsion against commerce took on an institutional life in 218 B.C., when Roman nobles were forbidden by the lex Claudia to engage in maritime commerce, which, given the geography of Rome, was the principal kind. The bias against trade became a conspicuous feature of European cultures down to the 20th century. It was to prove a constant theme in the history of the Jews (Johnson, 2001) and of less oppressed traders such as the Scots and the Lebanese. Some prominent Roman families did make a fortune out of banking and investment, although the ﬁrst residents of Rome to amass wealth in such fashion were Greeks. The Romans conducted almost all their money transactions in cash, whenever possible. Originally, in fact, they were hostile to usury (interest loans), but even the crusty old Cato the Elder changed his attitude before the end of his long life. The concept of credit came from the Greeks. The most famous Roman capitalist of all was the triumvir Marcus Licinius Crassus Dives (c. 115-53 B.C.), who shared at least nominal power for a number of years with two more spectacular Roman heroes, Pompey and Julius Caesar. Both of these great generals had a keen understanding of the strategic value of the civil engineering skills in which the Romans excelled. Caesar’s ﬁrst crossing of the Rhine in 56 B.C. was accomplished by a Roman-built bridge, not by something as ephemeral and un-Roman as a boat (Holland, 2004). The lesson to be learned by others was that when the Roman came to conquer, they came to stay – and to make money. Trade by the reign of Augustus extended over great distances throughout the entire Empire, and sometimes beyond, even involving occasional contact with India and China, but, by and large, the Roman commercial world was a closed economy. Overseas trade included the heaviest goods, and even foods such as wine, oil and wheat. Transport was mostly by sea, since overland costs were extremely high. The countries of the Mediterranean Sea, the axis of the Roman commercial world, became the permanent beneﬁciaries of Roman engineering. All over the region, harbors destroyed in the course of conquest were rapidly re-built and improved. Lighthouses and even artiﬁcial islands were installed. The Romans never learned how to prevent the silting up of certain harbors, but no people of antiquity or thereafter ever matched the Romans in the building of roads and bridges, most of which were to endure as usable public works for at least 1400 years. Since the only navigable rivers – the Nile, Euphrates, Rhine and Danube – were all at the periphery of the Roman

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world, these remarkable construction skills were essential to the maintenance of the Roman Empire (Levy, 1967). Trade with Asia, beyond the limits of the Empire, was conﬁned to luxury goods, such as perfumes, pearls, precious stones, spices, and silks. They were paid for mostly in wines and corals – which resulted in the eventual destruction of all the coral reefs of the Mediterranean. Similarly, from the Baltic Sea the Romans imported amber, furs and slaves; from Central Africa, ivory, gold, ebony, and slaves. All of this enterprise ended, with a suddenness that still amazes historians, in the ﬁrst half of the 5th century A.D. The internal process of disintegration has been likened to “an organism whose strength suddenly failed” (Bernardi, 1970). Many historians have seen the collapse of Rome as due partly, if not primarily, to “a decline in production, in the means of transport, in the means for payment, in the labor force and its eﬃciency”. Others have taken the mercantilist view that the collapse was caused simply by the outﬂow of Roman gold. But surely a range of factors contributed to the drastic shrinkage of ﬁscal revenues that ultimately proved inadequate to support the huge standing army, the massive bureaucracy, and the various welfare state commitments that had been incurred by the imperial authorities. The cost of military pre-eminence rose also in non-monetary terms, as the Empire became increasingly dependent on mercenaries of shifting loyalties. The history of oﬃcial state involvement in the commercial sector has been extremely variable from culture to culture. Over time the role of formal state law has ﬂuctuated. At one extreme, under the communist state systems of the 20th century, the state has owned virtually all means of distribution as well as production, and controlled almost all trade, both domestic and foreign. At other times and places, merchants have been left free to exchange goods and services as a separate “private” community. Even when the state has become committed to the regulation of some sectors of business and industry – the “private sector” – it has shown reluctance to become centrally involved in the settlement of commercial disputes, even although they might have been construed as aﬀecting the economy, and therefore the public interest. In such a highly litigious culture as that of ancient Rome, all artisans were fully aware that they had access to oﬃcialdom to settle their quarrels, through magistrates trained to administer a complex and highly developed body of rules: the civil law (ius civile). Business disputes between Roman citizens were settled by the praetor urbanus and his staﬀ early in the Republic. When the ius civile seemed too rigid and formidable, he could exercise the discretion vested in him to provide the ﬂexibility required, although the granting of an “equitable” remedy must often have rankled with the jurists who gloried in the strictness of the legal distinctions and procedures under the old law. But the ius civile was limited to Roman citizens, and even although the Romans were relatively liberal in the granting of citizenship to many categories of residents, the number left outside the ius civile continued to mount along with the size of the general population. So a “junior” level of the magistracy was added in 242 B.C. to exercise jurisdiction speciﬁcally over foreigners (peregrines): the praetor peregrinus (Watson, 1991). Although slightly less empowered than the praetor urbanus, the prae-

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tor peregrinus was also vested with imperium: that is, supreme authority, including the power of life and death in time of peace as well as war. By this time a second body of Roman laws was emerging in response to the perceived need to provide fair remedies to all, not just Roman citizens. This system was called the ius gentium (law of the peoples). It was used initially to settle quarrels, commercial or otherwise, between foreigners under the jurisdiction of the praetor peregrinus, but later was extended to disputes between citizens and non-citizens, which arose frequently, but not of course always over a commercial transaction. The ius gentium avoided the complexity of the ius civile in such areas as property, contract (obligations), torts (delicts), family law, and succession, and evolved in a simpler and often more equitable manner under the auspices of the praetor peregrinus. The merchants of Rome and its colonies were among the most direct beneﬁciaries of the ius gentium, which governed such matters as the legal eﬀects of simple delivery to pass ownership of most forms of chattels (moveable property), enforceable stipulations, and the legal consequences of sale and hire (Robinson, 1997). The availability of the ius gentium to foreign traders, who were excluded from the ius civile, was a “remarkable demonstration not only of Rome’s growth but also of her openness”. Praetorian “law-making” was at its peak between 125 and 17 B.C. The ius gentium was a system of private, not public, law. It had nothing to do with disputes between nation-states. This has not saved it from being confused with the “law of nations”, which was the name for “international law” up to the 19th century, before the present terminology was introduced by Jeremy Bentham. Yet despite the confusion over terminology, the ius gentium might be considered a sort of international legal system: a private law system applicable for transnational trade dispute settlement purposes. Indirectly, it represents an important Roman contribution to transnational commercial law to the extent it provided Rome’s jurists with an opportunity to bring the beneﬁts of legal reason and universal justice to the international commercial community of classical antiquity that found itself governed, more or less benevolently, by Rome. The Piracy Problem and the Law of the Sea. The Romans, as we have seen, depended mostly on foreigners to ply the seas and to develop the ﬁrst great system of truly international trade. Moreover, until the 5th century A.D. their lawyers were not much interested in maritime law, except in some private law aspects. Like the Greeks and Carthaginians, they made occasional claim to expanses of the Mediterranean Sea as “closed sea” (mare clausum). For example, as early as 508 B.C. Rome and Carthage concluded a treaty, the eﬀect of which was to make the Mediterranean west of Cape Bone a closed sea: a “gentlemen’s agreement” between the two principal trading powers in the region. Similar unilateral claims after the defeat of Carthage could be regarded as military threats made to secure economic beneﬁts in a hectic colonialist age (Johnston, 1965). Throughout early classical antiquity the most intractable maritime problem had always been piracy: armed robbery at sea. In the West, banditry against vessels might have existed as an “international” problem as early as 1200 B.C., when valuable cargoes were being shipped through the Eastern Mediterranean, the Red Sea and the

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Persian Gulf. The Greek legends about the military achievements of Minos, the ruler of Crete, were presumably based mainly on his success in combating the pirates of his day. The Homeric poems, written around 750-700 B.C., were apparently the ﬁrst written sources on what seems by then to have become a notoriety (de Souza, 1999). Early references to pirates convey widespread dread, bordering on panic, perhaps comparable to reactions to later threats to world order, such as those of anarchists in the late 19th century and of terrorists in the later 20th and early 21st. For the victims, piracy was a wholly evil activity, demanding some degree of international regulation. Yet some of these accounts reﬂect a degree of admiration for those free spirits who were able to make a dangerous living through mastering the perils of the sea, which included demons and monsters of the worst kind imaginable. Sea-plunder was not always easily diﬀerentiated from warfare. In the record provided by Thucydides, it became common in the Peloponnesian War (432-404 B.C.) for the combatants to take reprisals against one another, for injuries perceived to be illegal, by resort to plundering raids on their ships and shorelines. Moreover, piracy, like trade, was motivated by the lust for wealth. Throughout the period of Athenian primacy and the Hellenistic era that followed, piracy was also a politically convenient pretext for decisive action. Both the Athenians and Philip of Macedon, in the words of de Souza (1999), “claimed the right to carry out the job of locating pirates and destroying their bases in the interest of all Greeks. Although both sides argued that they were acting out of a wish to make the sea safe for all, it is clear ... that they were not seriously concerned with the matter beyond their own short-tem political advantage. They saw an opportunity to justify their aggressive and acquisitive military and naval policies in terms of the suppression of piracy”. After the death of Alexander the Great in 323 B.C., the “pirates” of the day were often mercenaries engaged by the rival Hellenistic monarchs to plunder the suddenly anarchic Greek-speaking world for the beneﬁt of their patrons and themselves. The Rhodians, as the pre-eminent merchant people of the Eastern Mediterranean, came closest to successful suppression of piracy in early classical antiquity. Apparently they pioneered the use of armed convoys in what appears to have been an eﬃcient use of naval resources. Indeed the Rhodian interest in the protection of commercial shipping was so strong that they were called to declare war on Byzantium in 220 B.C. to block the eﬀorts of the Byzantines to impose tolls on vessels passing in and out of the Black Sea. By then the taking of hostages for ransom, or for sale into slavery, had become a common and lucrative practice among the pirate community. However, fairly or not, it is the Romans who have received the greatest credit for their curbing of the piracy problem. Not least, they achieved this renown because of the special interest they took in the emergent law of the sea. By the early Empire, the Mediterranean had become a Roman sea. Beyond, the coastal waters of the Eastern Atlantic were constantly under the vigil of Roman patrols. Rome’s maritime power extended eastwards as far as the Black Sea. The Roman commercial empire branched out even further in all directions, as far as China for its precious silks, East Indies for their spices, and Britain for its tin. From its periphery Roman vessels brought in a rich larder of delights to satisfy the increasingly exotic

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tastes of the epicures: ﬁgs and dates from Syria, tunny (tuna) from the Black Sea, oysters from Britain, and sausages from Gaul. By the late 2nd century AD, Roman merchants had ventured as far as the court of the Chinese Emperor, presenting themselves conﬁdently as envoys from their own imperial realm – perhaps the ﬁrst semioﬃcial link between the two greatest empires of antiquity (Payne, 2001). Some later jurists, such as Cornelis Van Bynkerhoek, were to argue that, inasmuch as the Romans eventually surrounded the Mediterranean entirely with their forces, possessing it with four ﬂeets, the sea did in fact belong to Rome. Possession, in short, was nine-tenths of the classical Roman law of the sea. If the jurists of the hegemon had been obliged to make a case along these lines, they could have drawn upon a rich fund of concepts and distinctions of their own making: terminology that was to become central to the great debates on maritime jurisdiction that have occupied so much space in journals and treatises on the law of the sea in the second half of the 20th century. Despite themselves, the hegemonial lawyers of Rome provided most of the bricks and mortar for a more ambitious building that lay ahead. As noted in Chapter One, the famous law-of-the-sea debate between Grotius and Selden in the 17th century, and all similar juridical confrontations thereafter up to the late 20th century, were framed around pivotal concepts of Roman law: open sea (mare liberum) versus closed sea (mare clausum); adjacent or marginal sea (mare adiacens); (resources belonging to no one) (res nullius) versus resources belonging to all in common (res communis); supreme power (imperium) and ownership and control (dominium). The Romans created the language of debate, but left resolution of the basic issues to future ages lacking a hyperpower with the “privilege” of imperium (Johnston, 1965). Unfortunately the terminology of Roman antiquity was so imprecise in this area of law that it was often uncertain what position was being taken. In his Institutes, Justinian adopted the “classical assumption”, invoking the authority of Celsus, that the use of the sea was common to all (maris communem usum omnibus homnibus). Others – Marcianus, Ulpian and Paulus – espoused the view that the sea was not only owned by no one (res nullius) but, like the air, was incapable of appropriation. It could be used openly and freely by all mankind in the same way as the seashore – a proposition that would seem to place it in the alternative category of common property (res communis) (Fulton, 1911). On the other hand, it was generally agreed that jurisdiction could be exercised over the seashore, “subject to the guardianship of the Roman people” (Buckland, 1932). Harbors and rivers were diﬀerentiated from the sea, being treated as public property (res publicae). Terminological confusion persisted for many centuries on the point whether the alleged “freedom of the seas” was based on “natural law” (ius naturale) or the “law of nations” (ius gentium). The exact distinction between the two was never agreed upon among Roman jurists, though by the 3rd century A.D. the majority view was that the former was the foundation of the latter, performing the dual function of ultimate source and ﬁnal sanction, despite Cicero’s apparent belief to the contrary. As we have seen, the ius gentium was an outgrowth of private law, asserted to be universally valid. Later it would be invoked to guarantee the fundamental or natural rights of individuals against the impositions of states and elites.

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Religion and Formality. The ancient gods played a serious role among the Romans, more than they did in Greek society. Most Greeks had a fondness for many of their deities, whom they were inclined to live with rather easily, since they obviously suﬀered from familiar, if not always lovable, human weaknesses. They “would never have thought to veil themselves in the presence of the deities as the Romans did, drawing their togas over their heads” (Payne, 2001). But the gods of Rome were not restricted to the temples. The Lares watched over the streets of the city (Holland, 2004). The Panates were seen to have taken up residence in every nook and cranny of the household. But the Romans’ pantheon of “great gods” was always open to other deities that were not unduly territorial. More than any previous civilization, the Romans exhibited an extraordinary capacity to accumulate the gods of other tribes and nations: more than they really needed, as Payne suggests. At the higher levels of Roman society, the sense of duty (pietas) and social responsibility (gravitas) was inculcated in the Roman child at the age of innocence (Holland, 2004). All Romans were bound, by the ties of religion, to draw favor from the gods, as if to preserve the sanctity of the Roman state. Of all the great gods of Rome, the best and greatest was Jupiter (Jove): Jupiter Optimus Maximus. Although derived from several gods – or perhaps because of it – he became “the guardian of the Roman state, the loftiest representative of Roman power, but he was never, like Zeus of the Greeks, the supreme arbiter of the universe …When we compare the two gods, we ﬁnd we are comparing the imagination of the Greeks to the imagination of the Romans; they had almost nothing in common … Duty, dignity, inﬂexibility, oath, power – these are the words that seemed to come from [Jupiter’s] impersonal lips … He was concerned above all with law and morality, he watched over justice and truth … He represented the archetypal image of the paterfamilias, ruling gravely over his enormous family of Romans … The other great gods – Saturn, Ceres, Venus, Neptune, Mercury and the rest – served as decorations for his throne, deriving their powers from him” (Payne, 2001). The shaft of religiosity running through the early history of Rome is not unconnected with the history of international law. In the Republican era, the Romans used the gods to legitimize their declarations of war. They were the adjudicators brought in to declare the lawfulness, the justness, of the contemplated war (Watson, 1993). So when the Romans engaged in battle, they fought not only with right on their side, but under the burden of solemn religious duty. Psycho-culturally, as we might say today, it was a convenient arrangement. Another feature of the Roman system might seem quite American today. The Romans were the most legalistic of all peoples as well as intensely religious and imperialistic. This combination of cultural traits endowed them with an uncommon advantage in times of peace as well as war: they possessed the talent to ﬁnd moral vindication for their external actions within the entrails of their own culture. The famous Roman self-conﬁdence was the birthing of religious conviction. The Roman genius for conviction depended, however, on total compliance with clearly prescribed religious rites. The idea that propriety existed, above all, in the observance of sanctiﬁed forms and procedures became a governing concept within the great legal system of Rome. Later in history it would become basic to the civil law

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tradition of Europe that grew out of Rome, and, to some extent, today the principle of procedural propriety governs the traditionalist thinking of many European international lawyers, as described in Chapter Two. The formalism and proceduralism of the “juridical” approach to international law have religious roots that lie deep in the rich soil of Roman legal history. Yet, ironically, the content of Roman law was entirely secular. Roman jurists took no oﬃcial notice, judicially or otherwise, of religious duties. The formal distinction between law and religion never wavered. In everyday life, the Romans appeared to walk the bridge between religious belief and legal reason, but that social fact was never acknowledged in any of their legal codes (Bederman, 2001). The role of religion in Rome’s external conduct has drawn scholarly attention to the fetiales, the priests responsible for the observance of proprieties in international relations, including strict compliance with sacred forms (Nussbaum, 1953). It was the fetiales who supervised the preparations necessary for a declaration of war to ensure that Rome did not become engaged through careless impiety in an unjust war. It was they also who, on behalf of the state, demanded justice from a foreign power deemed to be in breach of a treaty, or other legal, obligation; and it was they who made peace and entered into treaties. The fetial college at Rome contained twenty members, all appointed for life from the patrician class in the Republic, and later from the leading men of the Empire. Watson (1993) draws a parallel between the fetials’ declarations of war and actions at private law, both requiring impartial decision-making, even though the fetial college was not a judicial body. This feature of impartiality in the fetial function, he argues, was suﬃcient to give “Roman international law” a legal character, unless one insists that a legal system must, by deﬁnition, include judges. It is common, he notes, to “characterize a lawsuit as war, but rare to portray war as a lawsuit. The insistence that the gods ﬁrst judge a war to be just before the Romans declare it brings sharply to mind President Bush seeking United Nations’ approval before the Gulf War”. But this comment has more of the lightness of quip than the aptness of analogy. As the events of the George W. Bush presidency have shown, it is the US reluctance to seek external approval before resort to war that marks out the Roman factor in the American hegemonic approach to international law. Eventually, of course, the Romans would discover a personal god more satisfying to the human need for spiritual fulﬁllment, but it was a gradual process. After Jesus, Christianity evolved in Rome essentially as a branch of Judaism. The Romans were a conservative people. “Progress”, as Karen Armstrong (1993) writes, was “seen as a return to a golden age, not as a fearless march forward into the future ... Romans were highly suspicious of mass movements that threw oﬀ the restraints of tradition …” Their sprawling empire had begun to re-make their capital city as the center of the cosmos, as the meeting-place of alien cultures and disturbing oriental cults, but throughout the 1st and 2nd centuries AD, most Romans continued to preserve the old rituals. These links with the past “seemed an assurance that things would remain the same”. Christianity, she suggests, presented the Romans with the worst of both worlds. “It lacked the venerable antiquity of Judaism and had none of the attractive rituals of paganism, which everybody could see and appreciate. It was also a potential

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threat, since Christians insisted that theirs was the only God and that all other deities were delusions”. To the end of the period of classical antiquity, the Roman state held oﬀ the embrace of Christianity. Jesus of Nazareth was never admitted to the Roman pantheon. The cult of the state endured, even as more and more citizens turned away from the hardness of their culture. “Christ and Jupiter belonged to diﬀerent worlds, and there could be no peace between them” (Payne, 2001). Some writers of our own time have ventured to suggest that Roman historians of the 4th century were pressed into a recreation of the early Christians as more peaceful and virtuous than they were in order to invent a less threatening mythology in the general interest of the super-state. Ciceronian Reason and Humanism. The Roman intellectuals did not, of course, truly believe in the gods and goddesses of Graeco-Roman mythology. Because they were patriots, they understood religion to be a valuable and powerful means of binding the nation together. Despite the conquests and political passions that make up the drama of Roman history and the superstitiousness of the popular culture, this was also an age of reason and secular humanism. One man in particular rises above all other Romans as a stunningly modern humanist. In him the history of world order ﬁnds its ﬁrst hero-ﬁgure. Marcus Tullius Cicero (106-43 B.C.) was born at Arpinum, son of a wealthy, semiinvalid landowner, who spared no eﬀort to provide his gifted son (and his other son) with the best education available by taking a town house in the capital. There Cicero’s teenage years were devoted to studies with Rome’s foremost teachers of philosophy and rhetoric. Like other clever sons of wealthy Roman families, Cicero was also exposed to the study of law, and soon, as the pupil of Scaevola, he was attracting attention as a rising star. It was, above all, as a jurist, orator, and writer that he was to excel, and become classical antiquity’s most enduring inﬂuence on the shaping of the modern world. We know a great deal about the life and times of Cicero. Because of his own voluminous writings we seem to have his measure. He certainly had his share of human weaknesses. Cicero was undoubtedly vain and ambitious. He could be naive and stubborn, and yet was often irresolute. He seems to have irritated many of his less idealistic contemporaries with his priggish, high-principled ideas of Republican virtue – his “political correctness” – at a time when an imperial case could be made for stronger rule and more eﬃcient administration. He was seen to be awkward, manipulative, boastful, outspoken, indiscreet, suspicious, and self-regarding. He was also conceded to be the wittiest and most eloquent man in Rome (Rawson, 1975). Above all, Cicero was bravely committed to a dangerous life of action despite his introverted personality. It was a life that brought him into conﬂict with more powerful and more ruthless adversaries (Holland, 2004). No period of classical antiquity displays such an array of formidable political ﬁgures contending for power and inﬂuence. Above all, Cicero had to compete with Gaius Julius Caesar (100-46 B.C.), a soldier-politician of remarkable abilities, possessing an extraordinary capacity for calm judgment and decisive action in times of public danger and personal stress. Although six years his junior, Caesar was from an

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early age the major threat to Cicero’s ideals and ambitions. Caesar respected Cicero’s abilities, but the brilliant lawyer stood in his path. There could never be a fondness between them. As schoolboys, Caesar and Cicero observed dramatic encounters between the forces of power and authority. Lucius Cornelius Sulla Felix (138-78 B.C.) had compensated for a misspent youth with an arduous and impressive military career, shaped by external threats to Rome’s authority on the part of its “allies”, such as Mithridates, King of Pontus, on the southern coast of the Black Sea. In victory, Sulla in 83 B.C. marched his troops into the city, in deﬁance of ancient law and custom, and installed himself as Dictator. In that unconstitutional position, he dedicated himself to suppression of the democratic populares, recovery of public order, and restoration of the Senate’s traditional authority. Caesar was brought up a popularis, strongly opposed to traditionalists like Sulla. Cicero, characteristically, was more ambivalent, a determined young Republican who saw dangers in populism and conceded the necessity for law and order in the face of potential anarchy. Within their own generation, Caesar and Cicero had many rivals. Not the least of these was Marcus Porcius Cato (95-46 B.C.), an austere, humorlessly unrelenting, strictly Stoical, conservative: an uncompromising Republican opponent of anyone who breached the constitution. His name “became a byword for virtue and truthfulness” – a dangerous opponent to men as ambitious as Caesar and as ﬂexible as Cicero. Later, on the defeat of his army at Thapsus in 46 B.C., sensing the victory of Caesarian rule over Republican authority, Cato would choose the course of suicide by disembowelment. He was to prove even more dangerous in death. Another rival was the illustrious Gnaeus Pompeius Magnus (106-48 B.C.), who started his career as Sulla’s protégé. His military reputation as a young man exceeded that of Caesar, who was six years younger and still just a dangerously self-assured politician. Indeed Pompey was so popular with his soldiers that he was seen, like Sulla before him, to pose a threat to the Senate’s authority, more so than Caesar as a young politician. Pompey’s military success owed much to his exceptional eﬃciency, which no doubt added to the Senators’ anxiety. When Caesar and Pompey ﬁnally became contestants for power, Cicero had to choose between them. He was reluctant to side with either in the civil war. His natural instinct was to practice the philosophy of moderation that he preached: to present himself as a mediator between two unpleasant options (Nicolet and Michel, 1961). The closest he came to a political friendship was the uncomfortable alliance he felt obliged to make with Pompey. Yet after the battle at Pharsalus in 48 B.C., where the famous general suﬀered comprehensive defeat, the victorious Caesar magnanimously forgave Cicero. Recognizing his exceptional abilities, Caesar returned Cicero from exile and restored him to public oﬃce. Cicero had no part in Caesar’s assassination in 44 B.C., despite his Republican convictions. He may have resented his exclusion from the famous conspiracy. Certainly he exulted in the tyrant’s overthrow. For the third time he was thrust into exile because of his outspoken hostility to those threatening the Republican cause. This time Cicero paid with his life, as he was hunted down by the agents of the avenging Mark Anthony, another autocrat – or perhaps on the call of Cicero’s vindictive wife,

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Fulvia (Everitt, 2001). Their knives ended a remarkable life. He died bravely, satisﬁed that he left a reputation for virtue behind him (Rawson, 1975). No one from the “equestrian” (country squire) class of Roman society, before or after Cicero, would rise so high and so fast through talent alone, outstripping all rivals who possessed the advantage of an aristocratic birth. He was a compellingly lucid orator and advocate in court, with an actor’s unerring sense of his audience. His writing speed was astonishing, exposing him to charges of superﬁciality by the less gifted. At the age of 30, in 76 B.C., he was elected quaestor. Then, after serving as aedile and praetor, he was elected consul at the age of 43, one year after the minimum age. Cicero’s political ascent has been likened to that of Robert Walpole, England’s ﬁrst prime minister in the 18th century. Cicero’s latest biographer, Anthony Everitt (2001), sees the famous lawyer and orator as also “Rome’s greatest politician”. Perhaps because of the veneration bestowed on him in the 18th and 19th centuries, most historians of recent vintage have adopted a skeptical, even revisionist, view of Cicero. For Everitt, however, “it is time to restore him to his proper place in the pantheon of our common past”. Those of us impressed by the order and constitutionalist models of world law might admire especially his sensible and pragmatic approach to the structure of state authority. As a rationalist, he felt that one could learn from history what worked and what did not. As a political moralist, he believed that eﬀective government must be reconciled with the demands of justice. The quest was not for merely good government, but for the best: the ideal state (Nicolet and Michel, 1961). Rejecting facile arguments for democracy, oligarchy, and monarchy, Cicero saw merit in each. The ideal Ciceronian model of republican government was a combination of all three. His model of balanced government was “Rome itself, but improved”. Its executive had quasi-royal powers. It was restrained partly by the widespread use of vetoes and partly by a Senate dominated by great political families. Politicians were elected to ofﬁce by the people (Everitt, 1961). As the great articulator of deﬁance against tyranny, he became the principal source of inspiration to the American and French revolutionaries of the 18th century. In our own day, we might go further and ﬁnd in Cicero the most inﬂuential early advocate of universal civic benevolence. Cicero has been denigrated by professional philosophers, usually on the ground of logical inconsistency and lack of originality. His defenders have protested that few, if any, of Cicero’s critics have themselves shown a gift for genuine originality. Philosophy is a transmission belt, demanding rigorous application and incremental additions to the strand of thought of one’s choosing. Cicero was suﬃciently ﬂexible to be eclectic, selecting modes of reasoning that served the purpose at hand. His mind was sophisticated and supple rather than rigorous or “sharp”. His prose was impeccable. He was the ultimate lawyer. Cicero’s sophistication consisted of an appealingly modern blend of civic virtue, erudition and skepticism. For a man of antiquity, steeped in Graeco-Roman traditions, he took remarkably little on faith. He professed to believe in the great gods, and seemed to give credence to divination as an eﬀective channel of communication with the gods. Yet it is clear from his writings that he shared the skepticism of the Stoics

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and Epicureans, who “regarded the gods as uncertain and scarcely probable denizens of an uncertain and scarcely probable heaven” (Payne, 2001). Most important of all were Cicero’s contributions as rationalist and humanist (Hunt, 1954). He built on the foundations of the Greek Sophists, who asserted that man is the measure of all things. “What is more divine”, he asks, “I will not say in man only, but in all heaven and earth, than reason? And reason, when it is full grown and perfected, is rightly called wisdom. Therefore, since there is nothing better than reason, and since it exists in both man and God, the ﬁrst common possession and God is reason” (Cicero, On Laws). For Cicero, reason was universal; God was a metaphor for the universe; and the universe was common humanity. “Another objection urges that one ought to take account of compatriots but not foreigners. But people who put forward these arguments subvert the whole foundation of the human community – and its removal means the annihilation of all kindness, generosity, goodness and justice” (Cicero, On Duties). Eclectically, Cicero drew also upon the Greek Stoics, who had contemplated a cosmopolis, “a universal community contemplating both gods and men in which, in principle, all men are equal and equally capable of achieving the perfect moral life” (Hommes, 1979). From this Stoic conception of a universal moral law, which he called “natural law” (lex naturalis or lex naturae), Cicero projected an extraordinary vision of future world law. “True law is reason, right and natural, commanding people to fulﬁl their obligations and prohibiting and deterring them from doing wrong. Its validity is universal; it is unchangeable and eternal. Any attempt to supersede this law, to repeal any part of it, is sinful; to cancel it entirely is impossible. Neither the Senate nor the Assembly can exempt us from its demands; we need no one to interpret or expound it but ourselves. There will not be one law at Rome, one at Athens, or one now and one later, but all the nations will be subject all the time to this one changeless and everlasting law” (Cicero, On the Commonwealth). As Michael Grant has reminded us, this was written during the catastrophic years of the late 50’s B.C., “when the vast Roman empire, covering the whole of southern Europe and northern Africa and western Asia, was sliding hopelessly into the civil war which led to the dictatorship of Caesar and the elimination of many of the human rights that Cicero valued above everything else”. Cicero had his moral blind spots. The Stoics had envisaged one grand universal community maintained by the natural moral order (nomos) in which all, including slaves, are equal. Aristotle, who had conceived of the state as the perfect moral community, could not bring himself to the Stoic position, arguing that human beings who are not naturally independent, but must be subjected to others, are by nature slaves. Cicero adopted the same Aristotlian view of slavery as a natural status, even although his conception of the state was of a community based on law, albeit subservient to the universal moral community of gods and humans (Hommes, 1979). In short, Cicero was comfortable with the Roman law of slavery (Watson, 1987). In his treatment of foreigners, on the other hand, Cicero was much more generous than either Plato or Aristotle (Phillipson, 1911). Throughout the Middle Ages, it was Aristotle’s name that carried the greatest weight as scientist and systematic thinker of classical antiquity. But as antiquity’s

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great champion of natural law, universal reason, individualism, and human freedom, and the eloquent advocate of a vision of world law, Cicero was the architect of modern enlightenment. When the classical world was re-discovered, in the 18th century, it was Cicero who was elevated above all other writers and thinkers of antiquity. Much earlier, it had been Cicero’s writings that had inspired Augustine, Aquinas, Erasmus, and Grotius, and provided the bridge to the modern world (Rolfe, 1928). Virtually all the great shapers of political thought in the 18th and 19th centuries derived their ideals from Cicero: Bodin, Locke, Hobbes, Hume, Macchiavelli, Montesquieu, Rousseau, Adam Smith, Pitt, Burke, John Adams, Jeﬀerson, and John Stuart Mill. He was particularly venerated in 18th century England, which supposedly had some aﬃnity with the Rome of Cicero’s time. More than anyone else, he was the intellectual hero of the philosophes of the French Enlightenment because of his free and engaging mind and his humanitarian concern with society (Rawson, 1975). Despite his competition with the brilliant and remarkably eﬃcient Caesar, he was revered by most of the Founding Fathers of the United States. “American constitutionalists, no less than French revolutionaries a decade later, thought of themselves as heirs to Roman republicans and most appropriately looked to their greatest political thinker, the cultured statesman and pater patriae for tutelage in the colossal task of founding a new order” (Wood, 1988). Alone at night in his room, it was Cicero’s orations that the young John Adams declaimed aloud (Bailyn, 1967). No less, it was Cicero who founded the political and ethical foundations of contemporary international law. Despite his elitist status in Roman society (Nicolet and Michel, 1961), he fathered the concept of universal human rights. His espousal of the natural rights of man derived from the Stoic theory of human nature and their doctrine of the “brotherhood of man”, which Alexander the Great had chosen to invoke on occasions when he wished to create a favorable impression (Hunt, 1954). In the contemporary view, it is absurd to hail Cicero as the founder of international law, but the ideas and values articulated by him, at a dangerous time and place, provided the foundations of what we should regard as the models of public order, civic benevolence, and constitutionalism, as described in Chapter Two. Fortunately, the history of Roman humanism did not end with Cicero. Even in the dangerous times of Caligula (12-41 A.D.), Claudius (10 B.C.-43 A.D.), and Nero (3768 A.D.), the Stoic ethic still found a voice among Rome’s leading intellectuals. None was more audible than Lucius Anneaus Seneca (c. 4 B.C.-65 A.D.), who maintained a versatile career as philosopher, tragedian, satirist, pleader, and political moralist. Throughout his life Seneca suﬀered from a variety of maladies: fevers, chronic catarrh, asthma, and fainting ﬁts, but apparently not those of the convulsive kind that had aﬄicted Julius Caesar. As a febrile genius, he was perhaps “overengined for his beam”. Unavoidably, Seneca’s brilliance and astonishing output – but especially his satire – brought him into risky contact with Rome’s most powerful political ﬁgures. The center of Western civilization had become a “nest of cobras”. Understandably, his extravagant talents earned him Caligula’s special envy and distrust. More than once, Seneca escaped the sword because of his apparently sickly condition. However, it was on the accession of the scholarly Claudius I – also a lifelong invalid – that Seneca’s

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strategy of feebleness miscarried. Messalina, the new emperor’s famously promiscuous wife, schemed against Seneca, charging him with adultery with Julia Livilla, her husband’s niece. Most historians believe the accusation was probably well-grounded. Guilty or not, Seneca was banished to Corsica for eight years. It was Claudius’ second wife, the manipulative Agrippina, who plucked Seneca out of exile in 49 A.D. (Payne, 2001). He was appointed praetor, a powerful oﬃce, and, even more prestigiously, engaged as tutor to Nero, Agrippina’s handsome and highly intelligent son by an earlier marriage. When his pupil became emperor in 54 A.D., Seneca acquired considerable leverage on aﬀairs of state (Sorensen, 1984). However, at the age of 69, the famous philosopher was implicated in a conspiracy against the unstable emperor, who ordered him to take his own life. Seneca obliged by opening his veins in a heated tub. It is diﬃcult to believe that Seneca was wholly innocent, despite his espousal of the cause of public virtue. As Michael Coﬀey has observed, the famous Stoic was a confusing mixture of opportunism and enlightenment. Seneca seems to have profited from public oﬃce, but posterity admires especially the autonomy of reason in his works (Uscatescu, 1965): his humanity (humanitas) and “social instinct” (societas) (Boyance, 1965). Despite a comparable involvement in the politics of Rome, he exhibited a more impressive serenity than we detect in Cicero. Like his famous predecessor, Seneca recognized the natural rights of man (the “brotherhood of man”) derived from the Stoic theory of human nature, which brought together the strands of equality and universalism in Greek political philosophy (Hunt, 1954). Even more clearly than Cicero, Seneca aﬃrmed the unity of mankind (unitas generis humani), envisaging a moral universe beyond national boundaries, extending to all peoples and cultures. He celebrated the dignity inherent in each individual human being. The old distinction between the world of Greek (or Roman) civilization and the barbarian world outside was totally rejected. Like Cicero, he envisaged the future evolution of “world society” (communis humani generis societas) (Aubenque, 1965). Arguably, his universalism brought him close to the conception of a world state. Like the Roman playwright Terence of the 2nd century B.C., Seneca proclaimed “I am a man, I count nothing human foreign to me” (homo sum, humani nihil a me alienum puto). His “profound sense of human possibility” convinced him that we can all acquire dignity, or even nobility, if we follow our own true nature. Unlike Cicero, who stressed the value of public virtue and the sacredness of civic duty, Seneca emphasized the worth of individuals, whose “personal qualities and private relations are more important than their public lives” (Alexander, 1965). For many today, Seneca’s special appeal lies in his commitment as a paciﬁst. He was opposed to war, even when waged against the forces of evil (Andre, 1965). He was fully aware of the treacherous men and women around him, corrupted by power and wealth, and yet his sense of universal order excluded the use of force. It is not surprising that he was found to be dangerous to the elite of his day. Rome’s contribution to the ideal of civic benevolence was by no means restricted to its humanistic theoreticians. For a short time its emperors set a remarkably high standard of enlightened rule. As noted earlier, the golden age spanned the reigns of

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Marcus Coccius Nerva, who ascended the throne in 95 A.D., and his four successors down to the death of Marcus Aurelius eighty-ﬁve years later (Payne, 2001). Nerva (A.D. 30-98), elected by the Senate from its own ranks, was a jurist of considerable eminence. Scion of a distinguished family noted for its services to public administration under less-than-admirable rulers, he represented a return to sanity and probity. During his two-year reign he even displayed a surprisingly modern concern for the children of the poor, laying the basis for the world’s ﬁrst welfare state. Nerva’s adopted son, Marcus Ulpius Trajanus (53-117), who succeeded him, was a Spaniard, the ﬁrst provincial to be elevated to the throne. Devoid of the pretensions and guile that had characterized so many of the Augustine dynasty, Trajan introduced a progressive line of leadership as well as exceptional military skills that extended the Empire to its ultimate limits on the shores of the Persian Gulf. While at home, he immersed himself in the details of public administration, arguably the ﬁrst ruler of antiquity to display genuine commitment to the goal of “good governance”. His successor, Hadrian – also a Spaniard and a professional soldier – was even more impressive. His reign marks the peak of the Pax Romana, blessed with the consolidation of power accomplished by the greatest military machine the world had seen. Sustained by an acquiescent and respectful political elite, Hadrian applied his administrative talents to numerous reforms in the provinces, in whose welfare he took an interest that was certainly un-Roman. Shortly before his death, the great Hadrian chose as his successor “a tall, thin, courteous man”, who was to reign for 23 years, a man described by Payne (2001) as “passionately addicted to good works”. During the benevolent rule of Antoninus Pius (86-161), the provinces all prospered under conditions of peace and stability that may never before have favored such a huge portion of the Western world. The last emperor of the golden age of Roman rule has been called the noblest of all rulers of antiquity, a man of exceptional private and public virtues, if not capabilities. Marcus Aurelius Antoninus (A.D. 120-180), famous for the honesty of his recorded voyages into self-discovery, put into practice in his personal life the precepts of self-discipline and self-denial preached by Epictetus and other great Stoics. Unlike Cicero, Marcus Aurelius has retained the respect of posterity as an important philosopher, displaying original insight into the limits of rationality and virtue. Perhaps no one in a position of great power has understood so clearly and so directly the diﬃculty of reconciling personal authority with moral responsibility – not even Jefferson, Lincoln, Disraeli, or Mandela. In most parts of the world today, government is institutionalized to the point that the personal contributions of a president or prime minister, though highly publicized, are actually subordinate to those of the oﬃcials at the senior levels of bureaucracy. Even in situations that call for personal diplomacy, “summit” decision-making rarely allows the personal virtue of a leader to have direct impact on the treatment of an international issue. Curiously, Marcus Aurelius remained stone-blind to the failings of those closest to him: his vicious son Commodus; his morally challenged, adopted brother Lucius Verno; and his allegedly promiscuous, but apparently aﬀectionate, wife Faustine. Despite their foul reputation, ﬁrst Lucius Verno and then Commodus were invited to share the throne with Marcus, constituting dual rule like the consuls of the Republic.

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It was in these years that thousands of Christians were put down with revolting cruelty, apparently accepted stoically by Marcus despite a nobler example of restraint on the part of his father, who had been faced with the same challenge from the streets. Yet Marcus Aurelius remains unsurpassed, in our imagination, as the ultimate rulerphilosopher. Christians apart, Aurelius is revered as a reformist, especially within the system for the administration of justice, in which he immersed himself as a matter of personal responsibility. His regard for justice was so acute that he sometimes spent twelve days or more on a single case, often sitting late into the night. Although apparently unmoved by pity, he rarely imposed a penalty of the utmost severity permitted by law, especially in cases involving slaves, widows, minors and other unfortunates. Indeed his concern for slaves resulted in permanent reforms in the Roman law of slavery, for which alone Marcus Aurelius may be entitled to his reputation as the most humane ruler of antiquity (Watson, Paul, 1971). Appropriately, it was in the reign of this emperor, who venerated law and justice, that the famous Institutes of Gaius were published: the chief source of our knowledge of the classical, pre-Justinian, law of Rome. In non-judicial matters he was equally meticulous, adopting the administrative model of Hadrian but surpassing all previous standards of diligence in the discharge of his imperial duties. No ruler of antiquity, or perhaps of any age, came closer to the ideal of civic benevolence. The Great Jurists. It is not doubted that Rome’s greatest institutional contribution to the world was its legal system (Buckland, 1932). The methods of legal reasoning developed by the Romans were an indigenous growth (Robinson, 1997). The inﬂuences of Roman law are everywhere, not only in the countries of the civil law descended directly from it (Watson, Alan, 1991). The civil law system has grown out of the famous codiﬁcation of Roman law in Justinian’s name, which was eﬀected by Tribonian and his associates in the 6th century A.D. at Constantinople (once Byzantium, and now Istanbul). Part of their work was the Digest, which consisted of extracts from the works of the great jurists of earlier times. The corpus of Roman law was built up gradually over more than a millennium by thousands of well-schooled jurists. It was a social development on a scale that transcends individual contributions. Yet a few Roman jurists of particular distinction can be identiﬁed. No reputation among the jurists of the 2nd century A.D. stands higher today than that of Gaius, but no one knows his full name, the year of his birth, or even his place of residence. He has been the despair of biographers. It is clear, however, that he lived during the reigns of Hadrian, Antoninus Pius, and Marcus Aurelius between 117 and 180 A.D., in the golden age of the Roman Empire. The records of that period bear no reference to anyone of that name, which may have been a nickname given by admiring students. Some have speculated that he was a freedman, possibly a Greek provincial, who would be disqualiﬁed from public oﬃce (Ledlie, “Gaius”, 1914). Despite the near-anonymity of the man, his career was exceptional. Above all among his numerous works, his Institutes was the most acclaimed, reaching the status of the standard textbook for future generations of Roman law students. He seems not to have had

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the right to pronounce binding legal opinions (the ius respondendi), which makes his ultimate, posthumous prestige the more intriguing. He may have been just a modest instructor in an obscure provincial law school. Aemilius Papinianus, probably a native of Syria, seems to have been a close friend of Emperor Septimus Severus, who reigned from 193 to 211 A.D. Some scholars have detected in Papinian’s works a gentleness and humanity that seem to place him outside the Roman tradition of strict upbringing and no-nonsense practicality. Unlike Gaius, he held a number of imperial appointments, at least until the accession of the murderous Caracalla in 211 A.D. Again unlike Gaius, he held the ius rspondendi, as reﬂected in his Responsa. When Severus died at York in England, Papinian lost all the beneﬁts of patronage overnight and Rome became awash with blood as Caracalla instituted a reign of terror against his brother Geta, favorite of their famously gentle and beautiful mother Julia, who was so admired by Edward Gibbon. Geta had no choice but to strike back, until he fell victim to Caracalla’s assassins and died in his mother’s arms. The homicidal young emperor seems to have commissioned the axmurder of Papinian, either as an adherent of Geta and Julia (to whom Papinian may have been related) or because he refused to legitimize Caracalla’s rule by defending the killers of Geta (Clark, 1914). The life of Domitius Ulpianus (? – 228 A.D.) also ended in murder, committed by the praetorian guardsmen, who had secured almost total license in their control over the youthful emperor Alexander Severus, who held the throne precariously between 222 and 235. Like Papinian before him, Ulpian rose high in imperial service, to the level of the chief of the emperor’s bodyguard (praefectus praetorio), but he was slaughtered by his subordinates in the presence of the cowed young emperor and his mother, both of whom were soon themselves to be put to the sword. This age of anarchy was ill-suited to the orderly development of a legal system, unlike the age of Gaius, but Ulpian, in the manner of Cicero almost three centuries earlier, became deeply involved in political intrigue, putting himself in harm’s way. Ulpian was a Syrian and always maintained a connection with the city of Tyre. During the less tumultuous phases of his career, he proved his mastery of the whole domain of Roman law. Along with Gaius, Ulpian is renowned especially as a writer of exceptional lucidity: “no mannerism, no aﬀectation, no turgid rhetoric” (Ledlie, “Domitius Ulpian”, 1914). Although less creative than some other jurists, he had a special talent for reconﬁguration of what he had absorbed. Some scholars attribute to Ulpian the famous tri-partite division of law into the civil law (ius civile), the law of nations (ius gentium), and the natural law (ius naturale). Some have not forgiven him for his refusal to ﬂatten the idealism inherent in the second and the third. Reﬂections. Overlords of the Western universe, the Romans in their prime saw no reason to continue the Greek experiments in inter-state diplomacy, balance-ofpower alignment, or third party adjudication. They imposed their will on what they perceived to be inferior peoples. Paradoxically, their greatest contribution to world history was a magniﬁcent legal culture. Despite the legal virtuosity of the commonlaw world, there is no doubt that the “classical” system of international law, evolving through the 17th, 18th and 19th centuries, owed most of its inspiration to the civil-law

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inheritors of Roman law. Even today in Europe, when international judges ﬁnd a gap in doctrine, it is to Rome that they usually look for a solution. In most areas of international legal doctrine Roman law is the best, as well as the ﬁrst, source of analogy. As we have seen in Chapter Two, there are divergent views on the nature of international law. Few would insist that a world law system must become structurally identical to a “municipal” system designed for national society, but in its vocabulary modern international law is virtually a derivative of Roman law. Almost all the key concepts that make up the infrastructure of international law are Latin words and Roman legal terms: for example, sovereignty, territory, jurisdiction, consent, recognition, and state responsibility. Most ancillary terms that are almost equally indispensable to legal reasoning at the international level are also Roman in origin: liability, just cause, parties, occupation, servitude, easement, mandate, co-dominium, median line, necessity, culpability, public property, contributory negligence, intervention, judicial opinion, ratio decidendi, precedent, justiciability, stare decisis, constitutionality, accretion, forum, arena, title, res nullius and res communis. Latin tags abound. It is unimaginable how the language of international law would look and sound today if the Romans had not supplied the terminology. Modern world law owes further debts to Rome. Behind the technical language of international law, and of all other legal systems, lies the stock of human values and legal principles that the greatest political thinkers and idealists of antiquity strove to promote in the face of tyranny and barbarism: equality, equity, justice, autonomy, obligation, liability, and impartial adjudication. These civic goal values for the human community were not, of course, the creation of Roman civilization. Yet virtually the entire stream of benevolent ideas springing up in the world of classical antiquity ﬂowed across the broad terrain of Roman intellectual history before their discharge into the fertilizing basin of the European Enlightenment. Even outside the civil-law system, which might be said to inﬂuence most countries, lawyers have been trained to focus almost exclusively on strictly legal values, concepts, principles, rules, texts, institutions and procedures. This molding of the mind to screen out non-legal factors as much as possible – even at the risk of being charged as “legalistic” – is also the work of the Romans. Unlike all previous civilizations, Rome produced lawyers of the highest intellectual ability who insisted on an absolute separation of law and religion, and, more dangerously, of law and morality. Insistence on the strictness of law has produced, especially in Europe, a caste of lawyerly thought that strives also for an equally clear-cut distinction between law and politics, or even between law and policy. As we have seen in Chapter Two, jurisprudential controversy boils up over the utility of such distinctions. The Roman jurists, who considered private law to be a science, would perhaps have sided with the modern legalists who have perceived international law as a sciencein-the-making. Yet no people, ancient or modern, had a ﬁrmer grasp of the reality of power in human aﬀairs, and especially the aﬀairs of state. Even Cicero, an idealist among less principled politicians, was essentially a practical man. His philosophy required him to reject dogma and other manifestations of intellectual inﬂexibility, even though his contemporaries found him a stubborn player in the political games of chance, in which more ruthless pragmatists always prevailed.

Universal Order in Classical Antiquity

So the rule-of-law tradition, which descends from Rome, sets goals and standards inseparable from the story of human civilization, and yet also sets the scene for the great debate in the present Age of Hegemony. As the world’s most successful superpower, Rome may not come immediately to mind as antiquity’s best example of commitment to international law. Secure in the knowledge of their own ﬁtness to rule, the Romans eventually dispensed with treaties, trusting to their own standards. So the verdict is mixed. They provided examples of civic order, regulation, constitutionalism, and fairness, and excelled to some extent even in the management of barbarism in warfare. Once established in power, they showed little interest in cooperative interaction with other nations. III

The Chinese

Despite their famous accomplishments in Western history, ancient Greece and Rome occupied a relatively small space on the world map. If Alexander had not yielded to the threat of mutiny among his Macedonian loyalists, world history might have run an entirely diﬀerent course. The great conqueror seems to have been remarkably free of racial bias (Fox, 1973), and he certainly possessed the will to establish the ﬁrst world-empire. The great convergence between East and West did not take place in Alexander’s time. The Far East continued to be dominated by the ancient system of Chinese civilization, left unmolested by Western intruders. During the rise and fall of Greece and Rome, China maintained its own rhythms, warring and uniting, disintegrating and re-assembling. Questions. Ancient China was a world unto itself. No other system of civilization has proved so durable, and so culturally self-composed. In what degree, and in what manner, were the Chinese contemporaries of the ancient Greeks and Romans carrying their own seeds of universal law and order? What were the Chinese ideals of civic enlightenment? Who shaped the concept of state autonomy? As the great hegemon of the East, how did the Chinese Empire deal with lesser powers? State Theory and Practice. At ﬁrst, it is the size and continuity of the Chinese state that command respect. But the earliest maturing process is not easily traced. The records of ancient China are not reliable before the 7th century B.C. So the claim that an inter-state system operated in China before then must be considered unproven (Britton, 1935). It is legend that the fall in 771 B.C. of the Western Chou (Zhou) dynasty occurred because no one responded to the beacons lit by the king’s men. In the past, it is said, the armies of Yu Wang were summoned repeatedly in this fashion, only to discover, once again, that this was a royal game devised to amuse the king’s favorite concubine (Reischauer and Fairbank, 1958). This accounting is, however, suspiciously similar to other misogynous legends explaining the fall of the earlier Shang and Hsia dynasties (Latourette, 1934, 1964). Thereafter, the king, re-established to the east at Luoyang, gradually lost the powers he had exercised in cavalier manner. The following period, known as the Eastern

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Chou (Zhou) dynasty, is usually divided by historians into two eras: the “Spring and Autumn” period (722-481 B.C.) and the “Warring States” period (403-221 B.C.). Some Chinese historians, “imbued with the ideal of a uniﬁed Chinese empire”, have depicted that early dynasty as a period of “hopeless division”, but it was in that dynasty that Chinese civilization began to ﬂower, producing great advisers such as Kuan-tsu (or Master Kuan), and of course great moralists and sages such as Confucius (K’ungfu-tzu or Master K’ung) (551-479 B.C.). With the advice of Kuan-tsu, Duke Huan of the state of Ch’i (Qi) undertook to modernize its structure of central government, instituting a uniform tax system and an early version of a command economy based on government control of prices, weights and measures, and trade. At that time also private ownership of land replaced the old communal system, so that some peasants became landowners and others degenerated to the status of serfs or even slaves. Written legal codes were developed and a bureaucracy, controlled by Kuan-tsu, began to evolve, staﬀed eventually by the leading teachers and thinkers: practical philosophers antedating Western counterparts such as Cicero by 500 years. By the 6th century B.C., China consisted of nine ancient states: Ch’i, Chin (or Tsin), Ch’in, Yen, Chou, Lu, Sung, Ch’u, and Wu, with Yueh immediately beyond to the south. In the early years of the Eastern Chou, these states were constantly at war with one another. Yet it appears that fairly strict rules of conduct were observed in the making of war (ius ad bellum) and in its conduct (ius in bello), comparable perhaps with much later Western warfare under the inﬂuence of medieval chivalry. Each state placed emphasis on its own legitimacy and the importance of observing the prescribed proprieties (li) in its dealings with the other states on the basis of reciprocity. By the 4th century B.C., however, the remaining Warring States were following Ch’u’s lead in rejecting the primacy of Chou, previously the hegemon of the Chinese confederation. The civilized tradition of reciprocity broke down. “Battles were fought to the ﬁnish; enemy armies were sometimes exterminated and princely lines extinguished” (Reischauer and Fairbank, 1958). In that grim era, religion and war were the constants. Warfare was itself “a religious service, replete with rituals of divination, prayers, and oaths preceding combat and ending in presentation of formal reports, booty and prisoners at the ancestral altars. Participation in service to the ancestors and other deities through hunting, warfare, and sacriﬁces deﬁned one’s membership in the ruling class, who shared a common ancestry. Its hallmark was the privilege of eating meat” (Fairbank and Goldman, 1992). Eventually the scale of warfare reached a level of devastation that forced the Warring States to use diplomacy to settle their perennial conﬂicts. Both bilateral and multilateral conferences of plenipotentiaries were held with some frequency to review disarmament proposals and negotiate treaties of peace and alliance, fortiﬁed by strategically designed marriages between royal or noble families. Conﬂicts, however, continued to ﬂare up. After a number of decisive campaigns, political stability was ﬁnally achieved with the establishment of the Han dynasty (202 B.C.-221 A.D.) through the military triumph of the state of Ch’in.

Universal Order in Classical Antiquity

The formation of the ﬁrst united Chinese empire set an almost unbroken pattern of rising and falling dynasties that would preserve the famous imperial tradition for over 2,140 years. With the consolidation of their empire, the Chinese, like the ancient Romans, assumed the luxury of supreme authority, removing the geo-political necessity for operating within a system of independent states. Throughout that period of extraordinarily lengthy continuity, only the “Middle Kingdom” was conceived as possessing supreme legitimacy. Imperial courtesies would be observed punctiliously, more often than not, in the reception of diplomatic and other representatives of foreign states, but, until the 19th century, never on the basis of reciprocity, which carried the unwanted connotation of equality. As mediator between Heaven and Earth, the Emperor had a sacred duty to “civilize” the barbarian peoples inside the pale of the Chinese world. Barbarism was seen to be not so much the mark of any particular race or religion as the absence of cultural achievement. Superiority was a matter of intellectual, aesthetic, social and ethical reﬁnement. Even as late as the Sung (Song) dynasty (960-1279 A.D.), the poet-statesman Su Shih (SuShi) could take a lofty view of those lacking Han reﬁnement. “The barbarians cannot be governed in the same way as China is governed. That is to say, to seek good government among animals will inevitably lead to confusion”. Disdain for foreigners of any cultural background continued among many Chinese intellectuals even into the 20th century. Insisting on the Western origins of international law has not appeared the likeliest way of convincing Chinese cultural nationalists of its virtue and merit (Hsu, 1960). The Confucianist Ideal of Civic Benevolence. The tradition of civic idealism in China is inseparable from the teachings of Confucius (551-429 B.C.), who died in the year of Plato’s birth. Little is known about Confucius the man despite the accumulation of legend, but there is no doubting his stature as an ethical idealist (de Bary, 1960). He seems to have been frustrated in his early career as a minor oﬃcial with political aspirations. At a later stage he became an overseer of granaries, but higher oﬃce eluded him. He returned to die in his home state of Lu, denied even the imperfect satisfaction of power enjoyed by some other practical philosophers, such as Cicero in the wholly diﬀerent political circumstances at the end of the Roman Republic 450 years later. Unlike Cicero, he could not overcome the disadvantage of birth into the lesser gentry level of society. Yet as much as Cicero in the ﬂuorescence of Western antiquity, Confucius shaped the ethic of benevolent rule for his own system of civilization in the East. The purpose of Confucius’ teachings was to convince the rulers of his day that high oﬃce involved a commitment to personal virtue. The higher one’s rank in society, the heavier were the responsibilities to be borne. No thinker, East or West, has insisted with greater ﬁrmness on the necessity of ethical conduct. Today, Westerners who take the trouble to read the Chinese classics are astonished at the constancy of the ethical values advocated by Confucius and the other great moralists of the Golden Age of Chinese classical antiquity. The Chinese ethical tradition oﬀered a culturally unique version of benevolent rule. In the West, civic benevolence found expression in an individualistic tradition

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of widely shared, democratic values: guarantees in the form of institutional checks and balances, and remedies made available within a “rule-of-law” culture. In China, civic virtue depended not on institutional arrangements but on the inculcation of personal virtue among the rulers. Somewhat like Plato, Confucius believed that good government could be achieved only through the moral education of the leaders. The principal Confucian virtues that a “gentleman” should possess were ﬁve in number: integrity, righteousness, conscientious responsibility to others, altruism or reciprocity, and love, charity or humaneness. It was also important, but less essential, to have style or cultural polish and an appropriate regard for decorum and etiquette. Like Aristotle, Confucius believed that music helped to promote proper ethical attitudes. Unlike most Western philosophers, he distrusted absolutes. “Confucius was a relativist, thinking in socio-human terms. He set the East Asian pattern of compromise, of always seeking the middle path. He was ﬂexible. He hated obstinacy and distrusted clever talkers” (Reischauer and Fairbank, 1958). Confucius was a “reforming conservative, seeking to teach his pupils the essential truths of a system materialized and obscured by routine … He advocated the principle of order – the attribution to everything of its correct place in the great whole of experience. The practical expression of this was the strong Confucian predisposition to support the institutions likely to ensure order – the family, hierarchy, seniority – and due reverence for the many nicely graded obligations between men” (Roberts, 1995). Confucianism was not normally regarded as a true religion, but rather as “a philosophic attitude which could adapt itself as much to a religious frame of mind as to skepticism or even sheer agnosticism … an attempt to explain the world, respecting the general sense of tradition but rejecting popular primitive beliefs. Hence its rather lordly detachment, its contempt for superstition, and its obvious skepticism. Confucius never spoke of the gods; and although he respected the spirits, the ancestors, he preferred to keep them at a distance” (Braudel, 1993). Among the many Chinese philosophers who followed Confucius, the most important from the point of view of civic benevolence was Mencius (372-289 B.C.). A disciple of Confucius, he followed in the steps of his master, wandering from state to state in a fruitless quest for high oﬃce, where he hoped to be able to put Confucian precepts into practice. He was respectfully received, wherever he and his retinue descended. Scholarship was held in esteem by princely families in the “Golden Age of Chinese Thought”, but the culture was not yet ready to admit ethical idealists into positions of power. Like many a disciple, Mencius went beyond the master. Above all, he was more optimistic than Confucius in his conviction that all humans share an innate moral sense, a faculty that could be cultivated not only through education but also through selfdiscipline and contemplation, as urged by the rival Taoist (Daoist) school. Moreover, Mencius was even more adamant than Confucius that government was primarily an exercise in ethics. Rulers should be governed by what is right, not by the prospect of proﬁt or the aggrandizement of personal power or family honor. The rule of the truly moral ruler is characterized by benevolence toward the people. The only way to become a true king, he held, was by winning the support of the populace, who could

Universal Order in Classical Antiquity

be depended upon to recognize the light of virtue behind the barriers of bureaucracy and self-seeking sycophants. If the people killed or deposed their leader, it was clear that he had lost the Mandate of Heaven. Some scholars with a logical disposition have commented that this “right of rebellion” would be eﬀective only if the rebels proved successful. With an eye to the need to restore legitimacy to central government at the overthrow of a dynasty, historians have commented upon the convenience of such a myth to the usurpers. Today there is much debate on the extent of Confucianist inﬂuence in China and in other Chinese communities such as Singapore and Taiwan. Since Confucianism was never a true religion, evidence that the Chinese are still Confucianists to the core must be looked for outside the realm of faith, in everyday attitudes to such matters as authority, education, intellectual accomplishment, and personal worth. It is generally believed that Confucianism, as a system of political and social ideals, has given way to external modes of thought: progress, science and nationalism, if not yet democracy in its Western version (Wright, 1960). Arguably it is the relativist, contextualist strain in Chinese thought that is the most important remaining inﬂuence of Confucianism in modern Chinese cultures, and the most relevant to contemporary questions about global allegiance to the abstract language of international charters and covenants. Challenges to Confucianism. Confucianist state theory is best known today in the Western world as feudal China’s unique contributions to political thought. Yet there have always been challenges to Confucianism as the “national ideology”. China’s Legalist philosophy was designed to aid the ruler in his consolidation of power. Kingship rested on the foundation of hereditary right. Since the populace at large was stupid and ignorant, and the oﬃcials were venal at best, the ruler could not safely rely on moral virtues. All had to be controlled equally, regardless of rank, by a detailed code of penal laws, a system of clearly deﬁned rewards and punishments. Punishment should be visited severely upon anyone who failed to achieve what he or she was assigned. The harsher the penalty, the greater the likelihood of complete obedience. According to the Legalists, superior beings were capable of learning to discipline themselves; inferiors had to have discipline exerted upon them. Human nature was unalterably selﬁsh, producing conﬂict. Moralists who pandered to the non-existent virtues of the inferior majority were the bringers of chaos. Among the oppressions that had to be maintained by the state was the obligation to contribute to the economy. Priority should be given to the arts of war and the cultivation of military merit, for only through strength could public order and security be assured (Resichauer and Fairbank, 1958). Legalism was more than a school of thought. It came into legitimacy through the acquisition of ultimate power by the king of the state of Ch’in, as the First Emperor of the Ch’in (Qin) dynasty in 221 BC. His ruthlessly eﬀective reign was inspired by the original advice of the famous Legalist, Shang Yang (c. 390-338 B.C. (Fairbank and Goldman, 1992)). Lord Shang’s cynical grasp of the realities of power has been compared with that of Nicolo Machiavelli, whom we shall encounter in Chapter Six, at a critical stage in the rise of modern European statehood.

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The challenge to Confucianism extended far beyond the Legalists. In the period following the death of the master, the followers of Mo-tzu (470-391 B.C.) criticized the Confucianists for their rationalistic skepticism, their tendency toward fatalism, and preoccupation with ritual. For Mo-Tzu and his followers, virtue required belief in an all-encompassing Heaven that exhibited love for all humanity. Piety called for an ethic of universal benevolence through a modern-sounding commitment to a welfare state. Rulers were urged to abandon all forms of public ritual, entertainment, and oﬀensive warfare in order to concentrate on the feeding, housing and clothing of the people. Dangerously, this gospel of civic enlightenment was preached to all, not just to the principled youth of the ruling elite. Mo-ism was a paciﬁst, utilitarian ethic based on the ideal of universal love, but it did not survive the 3rd century B.C. Perhaps it was too otherworldly for the practical Chinese people. Taoism represented a more permanent challenge to the teachings of Confucius, which were ridiculed, along with those of Mo-Tzu, for their dull and moralistic commonplaces. The larger part of the Taoist tradition has been its intellectual and cultural enrichment of the ruling class, for whom it was intended. The Taoist ideal, like the Mo-ist, centered on a cultivated gentleman, but the orientation varied with the scholar. According to one view, the focus should be on the intellectual and spiritual freedom of the individual. “What he must be freed from are his own prejudices, his own partial view of things … Man is not the measure of all things, as the humanistic philosophy of Confucius had seemed to imply … Such is the vision of Chuang Tzu, sophisticated in its satire of conventional thinking, boldly imaginative in asserting the freedom of the individual to seek his own fulﬁlment … essentially a selﬁsh and egotistical vision which can be of little practical value in the governing of the state” (de Bary and others, 1960). Taoism, inﬂuenced by ancient Indian mysticism, cultivated “female” values such as receptivity, fatalism, and conformity with nature rather than the “male” virtues of discipline, civic duty, and compliance with state authority. Although Taoist philosophy may have emerged from an earlier, matriarchal, era, it is chieﬂy associated with Lao-tsu (c. 604-B.C.) and the famous work Tao te Ching (The Book of the Way and its Power), which is attributed to him but may not have been written until the 3rd century B.C. on the basis of Lao-tsu’s teachings. Like later anarchists, the Taoists saw the universe as being in a state of constant ﬂux. Everything changes; nothing is constant except the rule of change. There is no need to envisage a conscious god of creation. The energy of existence ﬂows, without interruption, between the poles of yin and yang. Because good and bad are related, complementary rather than contradictory, there are no absolutes. Abstraction should be dissolved in the acid of relativity. Destruction and the use of force, in war or otherwise, waste energy and cannot be justiﬁed. The world is best ruled by letting nature take its course (Marshall, 1993). Many other schools also contended for orthodoxy during Chinese classical antiquity, during a long period of intellectual ﬂowering comparable with that of Greek antiquity. For posterity, however, it is the struggle for civic legitimacy that has resonated most clearly, and especially the contest between the Confucianists and the Legalists.

Universal Order in Classical Antiquity

Nothing sets the traditional Chinese style of government apart more clearly than the amalgamation of Confucianist and Legalist elements. The convergence of the two, apparently incompatible, strains of civic thought began in the Han dynasty, which virtually coincided with the golden period of Roman rule in the West. Legalism in China appealed to the rulers, since it prescribed material rewards and punishments to keep the common people in order. But the ruler could not rule by force alone. He depended upon his bureaucrats and their commitment to Confucianist values to display his constant imperial concern for benevolent rule. To prove his entitlement to the Mandate of Heaven, he needed a ruler-elite of mandarins, trained as superior men, “able both to secure the people’s respect and guide the ruler’s conduct” (Fairbank and Goldman, 1992). It was also in the Han period that the traditional pattern of China’s relations with the outside world began to take shape. Military strength was imperative to hold oﬀ the barbarians pressing in from the north. In times of weakness, however, use had to be made of “peace and kinship” strategy: dynastic marriages, entertainments, luxurious gifts, and concessionary treaties that acknowledged the (temporary) inequality between the parties. Reﬂections. From the modern international law perspective, the relevance of early Chinese history is found chieﬂy in the Han experience of seeking a balance between order and civic enlightenment. It is a tradition that conveys respect for power and authority, externally as well as internally. When order is secure and the state is strong, authority emanates from the prerogatives of power. When order breaks down, resort to cooperative arrangements becomes necessary. Since order is not a permanent condition, wisdom in rule and statecraft dictates the cultivation of a reputation for fairness and ﬂexibility. Both Chinese scholars and China specialists have traced ﬂuctuations in the history of Confucianism for over 2,500 years. It has been described as a “persuasion”, a set of inherited beliefs and attitudes that have permeated all sectors of the political, moral, intellectual and artistic life of China. Because it has been so central in the thinking and feeling of the Chinese, at all levels of society, Confucianism has also been under challenge, almost constantly, by “counter-cultural” intellectuals, in early dynasties and in modern times (Chow, 1960). Posterity has also been ambivalent toward the Legalist school of China (Pulleyblank, 1960). It hardly conforms with any modern ideal of governance and good life, although it does oﬀer comparison with the ethic of ancient Sparta, The Legalists are usually blamed for the extremely lengthy Chinese tradition of highly punitive law that was maintained in codiﬁed form even into the late Ch’ing (Qing)dynasty in the 19th century A.D. (Bodde and Morris, 1967). On the other hand, their insistence on a single system of laws for all is modern in tone, intended to curb corruption in public life and to foster civic cooperation by threat of force. Readers who recall the rigorously imposed morality of the Maoist era in China between the 1940s and 1970s will recognize the heritage of the Legalists in the modern era. Not everyone wishes to contemplate the prospect of a “clash of civilizations” in the 21st century. Yet there are, undoubtedly cross-cultural tensions in contempo-

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rary world society”, rifts that have been likened to “fault lines” in the substructure of our international system (Huntington, 1996). As China moves closer to its apparent destiny as a world power, may its deep immersion in Confucian, Legalist and other Chinese values result in a diﬀerent balancing of individual rights and social responsibilities? Will Chinese ascendancy cause a sinicization of international law in some degree? Or does the recent Chinese record in treaty-making (Johnston and Chiu, 1968) and in compliance with international law (Cohen and Chiu, 1961) suggest a genuine and lasting commitment to the global, but Western-inﬂuenced, rule-of-law system of order? These are questions to examine later in a modern context. IV

The Indians

Unlike China, India does not lend itself to easy or accurate generalization. There are few, if any, lines of cultural continuity, and it can be argued that there has never been any single “system” of Indian civilization. It is hard to ﬁnd a focus within the amalgamation of disparate experiences that make up the story of ancient India (Braudel, 1993). Questions. Can we nonetheless detect certain traits in its early experience that have a bearing on India’s cultural perception of the goals of world law and order? Is there any evidence in the history of ancient India that supports the much-disputed hypothesis of “Asian values” shared by cultures ad distinct as those of China and India? As India too moves toward the status of a world power, can we imagine a distinctively Indian inﬂuence on the development of international law that might arise from its ancient past? The Early Mixing of Cultures. The fabled culture of the Indus Valley remains mysterious. The earliest accounts were transmitted by word of mouth. Yet it is fairly clear that the Harappan culture at its peak, before its decline around 1750 B.C., was a culture of cities that displayed impressive skills in civic organization, and especially in the arts of town planning (Asthana, 1976). It had its own system of writing, and surely its own urban and commercial sophistication, although no names have passed down to posterity (Thapar, 2003). Its decline may have been caused by over-exploitation of the lands used for crop cultivation, and by the great ﬂoods that are known to have devastated the Indus region at that time (Roberts, 1995). The post-Harappan period of ancient India is cast in shadows. Much of the subcontinent was divided among a large number of kingdoms and a smaller number of republics, but not much is known about the conduct of relations among these polities (Sharma, 1968). The arrival of the Aryan nomads from Turkestan, through Iran, is more clearly recorded. Invasion, around 1400 B.C., led to eventual occupation of the plains of Central India, and the capture of the “living heart of India”, as Braudel (1993) describes the most populous part of the sub-continent in the Central Ganges region. These nomads were a mixture of relatively fair-skinned peoples: Hellenes, Italians, Celts, Germans and Slavs. By 800 B.C. they had settled permanently, intermarried with the highly diverse pre-Aryan populations, and taken up farming.

Universal Order in Classical Antiquity

It was the Aryans, the newcomers, who stamped on the sub-continent the Vedic system of values and the world’s most sharply diﬀerentiated social system. At the top of the Indo-Aryan hierarchy were the brahmans, the masters of spiritual matters, who were higher even than the kings, princes and lords of the warrior class. Clearly inferior to these two classes were the farmers, peasants, merchants and artisans, who made up the bulk of society; and far beneath them were the slaves (sudras). The tenacious grip of superstition ruled out any challenge to the primacy of the brahman priests, who continued to rule by fear of the unknown, though gradually obliged to yield temporal authority to the aristocratic elite. The 7th century B.C. witnessed the return of towns and the restoration of trade as a source of wealth, as the Harappan and Aryan cultures merged. The latter culture was much less advanced than the former had been. By 500 B.C. writing had been re-invented, and soon it became a necessary cultural response to foreign inﬂuences, especially that of the Persian Empire founded by Cyrus the Great during his reign between 559 and 530 B.C. and extended by Darius between 522 and 486 B.C. Earlier Indian trade contacts with the outside world were peripheral and occasional. The Egyptian Pharaoh Rameses III (1198-1166 B.C.) is believed to have luxuriated in linen garments, a fabric that was available only in India at that time. Other early contacts existed with Judaea, Assyria, Iran, Babylonia, Ceylon (Sri Lanka), and Greece (Asthana, 1976). Of these foreign inﬂuences, Greece and Iran came closest to having a lasting impact on Indian history. External inﬂuence was most perceptible in the northwest sector of the Indian subcontinent. Long before Alexander the Great crossed the Indus in the spring of 326 B.C., Greeks and Iranians from Eastern Iran had arrived in the region and become socially and politically organized. It is believed that Greek-Iranian chiefs came forward to welcome Alexander as he came through, but Alexander was a Macedonian and did not feel obliged by blood to grant them special privileges (Narain, 1957). For eight years Alexander’s Macedonians had marched 11,250 miles, “regardless of season or landscape”, into the vastness of Asia. They had had to endure starvation, and now they were encamped on the western bank of the Beas, the most easterly of the ﬁve great rivers of the Punjab. Hoping that these were the headwaters of the Nile, Alexander himself was eager to fulﬁl his destiny as the ﬁrst conqueror of the world. But his generals and men had had enough. Their despair, rather than mutiny, forced Alexander to reconsider, sulking for days before his agonized order to retreat. If the Macedonians had agreed, once more, to follow their magnetic leader, what might have been? Would they have succeeded in carving their way through the Nanda army of wild elephants and warriors, waiting on the other side, to the enemy’s “splendid palace at Palimbothra, where the Ganges runs down to the eastern sea”? (Fox, 1973). As it is, the memory of Alexander’s two-year campaign in Northwest India exists mostly in Western history. The incursion made little lasting impression on Indian thought and political history. Alexander came to India in order to reach the easternmost limits of Darius’ empire. Much has been made in the West of his contact with Indian intellectuals, given Alexander’s own interest in Greek philosophy, but India, like China, was to remain largely unaﬀected by Western inﬂuences for almost two millennia (Thapar, 2003).

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The Mauryan Empire. To Indians, the 4th century B.C. is signiﬁcant not because of Alexander’s footprints on their soil, but because of the emergence of the Mauryan empire. Within months of Alexander’s reluctant retreat, the ﬁrst of his successors in West Asia, Seleucus Nicator, was forced to conclude a peace pact with the Mauryan King Chandragupta, founder of a new empire in Northern India during his 25-year reign (321-296 B.C.). In this period of Gupta rule a new age dawned with the establishment of eﬃcient and relatively benevolent central government, and security of life and property. It was also an age of great literary achievements in Sanskrit, which became the ﬁrst standard language that could be read throughout the sub-continent. The reign of Chandragupta compels attention today. At no time in the history of ancient India was the theory of government developed in such detail. The Arthasastra, the most important civic treatise of ancient India, is attributed to Chanakya (or Kautilya), who is believed to have been a real person, an extraordinarily clever and wily adviser to the king (Gokhale, 1959; McNeill and Sedlar, 1969). The Arthasastra was a compendium of traditional rules and precepts for the administration of the Indo-Aryan state of that period, written expressly for the guidance of the ruler and his ministers. It seems not to have been an original work, but rather a compilation drawn from established Indo-Aryan practices, covering the entire spectrum of civic responsibilities: property law, ﬁscal regulation, criminal justice, hospitals, roads, rivers, canals, irrigation, ferries, sanitation, famine and poverty relief, overseas trade, piracy control, and the conduct of foreign aﬀairs (Havell, 1972). Chandragupta’s government was an iron-strong regime, but, in theory at least, it did not rely entirely on military force. The treatise depicts him as a “constitutional monarch” bound by the common law of Aryavarta (Bhargava, 1996). Chanakya himself was a brahman, but he resisted the traditions that accorded divine rank to his class and exempted it from heavy punishment for serious violations of secular law. A brahman under the Arthasastra could not be tortured, but he could be heavily ﬁned, and for the worst oﬀences he could be sent to work in the mines, which to a brahman was a particularly degrading punishment. No Aryan, even a sudra, might be sold into permanent slavery, though servitude could be imposed for a limited number of years. The king himself is presented as a servant of the people (Havell, 1972). The Kautilya treatise is the earliest text on the art of statecraft. The later version that is extant today has been described as so sophisticated and psychologically subtle as to be “the product of a highly developed civilization and a long political tradition” (McNeill and Sedlar, 1969). But it can also be interpreted as an exercise in cynicism. Successful rule was its own justiﬁcation. Bureaucracy had to be well organized and ubiquitous, but to guarantee its eﬀectiveness it was necessary to maintain a pervasive network of espionage. Totally ruthless punishment was prescribed for discovered deviants: an early predecessor to the system of informants run by Francis Walsingham in the age of Elizabeth I of England 1900 years later. In another way, the Arthasastra of antiquity seems strikingly modern. In presupposing a “multiplicity of small states living in uneasy co-existence”, it reminds us of the system of the Italian city-states of the Renaissance. Each state is presumed ready to subvert its neighbors at the ﬁrst hint of weakness. The diplomacy of alliance is

Universal Order in Classical Antiquity

understood to be grounded in expediency. Peace is a temporary tactic. Its cynicism about foreign relations has earned comparison with The Prince of Macchiavelli 1500 years on. Both applaud eﬃciency and expediency, uninhibited by moral scruples, offering an amoral science of politics as a standard of universal validity. After the death of Chandragupta, his son Bindusara ruled for a brief period, but it was the succession of his grandson Asoka (Ashoka) the Great, in 269 B.C. that introduced a totally diﬀerent philosophy of government to India. Few other major ﬁgures in world history have been so idolized and demonized in equal measure. Many Indian historians have revered Asoka as one of the most just, wise and benevolent of rulers, the moral equivalent of Marcus Aurelius, who attempted to implement his own version of benevolent rule almost 400 years later. Yet Asoka is a controversial ﬁgure in history because of his conversion to Buddhism. There is “verily no duty”, he wrote, “which is more important to me than promoting the welfare of all men”. Believing as a devout Buddhist that all life was sacred, he prohibited the sacriﬁcial slaughter of animals administered by the brahman elite. He rejected the Kautilyan rule of his famous grandfather, and ignored the traditional Vedan caste system, which indeed receives no mention in any of his edicts. Horriﬁed by the slaughter of the battleﬁeld, he urged resort to reason and tolerance. His tolerance extended to the existence of slaves, but he insisted on the observance of courtesies to them, and other servants, on the ground that all human beings were equal. His reforms included the astonishingly modern institution of a system of free medical care open to all residents within the Mauryan empire. Like Marcus Aurelius, Asoka devoted much of his energy to reform of the legal system, which was made more just, or at least less oppressive. His magistrates were instructed to deal with all cases impartially to ensure that his subjects “suﬀer neither unnecessary imprisonment nor from unnecessary harassment” (Ahir, 1995). Other admiring historians have tried to reconstruct Asoka as the architect of a new Indian order of civilization that attempted a synthesis of Kautilyan precepts and Buddhist principles. By this view, he had to ﬁnd a way of reconciling the hard and soft philosophies of power. As emperor of most of Northern India, he was heir to his grandfather’s Kautilyan public policy based on stern realities; as a Buddhist, he had to heed the preachings of his Master which called him to strive for “human greatness beyond the grandeur of political power” (Gokhale, 1966). Perhaps because of his betrayal of his Hindhu heritage, many non-Buddhists have denigrated the myth of Asoka, or at least chosen to question his historic signiﬁcance. Admittedly the Mauryan empire did not long survive the founders, and Buddhism, declining as a major religion in India, moved eastwords to take root in other cultures. However, the “softness” and idealism of Indian civilization might be traced back to Asoka, and the heritage of public virtue in which many Indians take collective pride. Despite the unreliability of ancient Indian records, it appears clear that Asoka’s reign coincided with a renewed interest in the outside world. It was apparently the Third Buddhist Council, at Pataliputra around 250 B.C., that decided to make Buddhism an actively proselytizing religion, which would, centuries later, lead to the propagation of Buddhism all over Asia. Little is known about Indian links with China in Asoka’ time, but one of his daughters is believed to have married a nobleman

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from Nepal, thereby establishing a strong cultural association in the North. Most of Asoka’s external contacts were, however, in the west, especially with the Hellenistic kingdoms of Syria, Egypt, Macedonia, and Cyrene and Eperius. More speciﬁc descriptions exist of Mauryan relations with Sri Lanka. The ﬁrst Buddhist missionary to that island is said to have been Asoka’s son Mahinda, and the local king, Tissa, seems to have modeled himself on Mahinda’s impressive father. This contact resulted in the frequent exchange of gifts and envoys (Thapar, 2003). Reﬂections. Pride in their ancient culture has led many Indian scholars to challenge the theory of the European origin of international law. Some have pointed to the sophistication and modernity of the Arthasastra; others to the rules of civic conduct prescribed in the dharma; still others to the evidence of a body of rules governing diplomatic relations among the many states that co-existed at various times on the Indian sub-continent (Bhatia, 1977; Chatterjee, 1958). The diﬃculty lies in the quality and quantity of the evidence available. Textual references to inter-state customs and practices can be found as far back as the Gautama Sutra (6th century B.C.) and the Laws of Manu (5th century B.C.). Indeed the oldest Vedas (books of knowledge), the foundation of Hinduism (or Brahmanism) brought to India by the Aryans around 1500 B.C., can be interpreted as evidence of an ancient system of diplomacy complete with secret codes and privileged envoys. But such claims cannot be substantiated until archeologists are able to separate legend from fact. It is still diﬃcult to establish that India developed its own “family of nations” (Chacko, 1958). Yet it is clear enough that the civilization of ancient India developed its own, highly signiﬁcant, system of order and benevolence in a sub-continent challenged by numerous forms of adversity. V

The Africans

In the period of classical antiquity, the “known world” consisted of three continents. The continent that remained the least known to the other two, down to the 15th century A.D., was Africa. It is an irony of world history that the apparent site of the beginning of human evolution should remain mysterious for so long. Even today it is the cultural region most diﬃcult to connect with the history of international law before the age of Western colonization. Questions. How much is known about African civilization during the era of classical antiquity in world history? To what extent was Africa linked with the centers of Eurasian civilization? What were the salient features of African experience in the early development of civic order? The Egyptian Legacy. Very little is known about the early history of Southern Africa. Up to the pre-modern era, it remained the last homeland of hunter-gatherers, thinly scattered over terrain that was mostly ill-suited to crop cultivation (Thompson, 2000). Despite the availability of plentiful herds of large wild animals for hunting, sub-Saharan Africa had none of the species that became the candidates elsewhere for

Universal Order in Classical Antiquity

domestication: neither the “Major Five” (sheep, goats, cattle, pigs, and horses), nor the “Minor Nine” (Arabian camels, Bactrian camels, llama and alpaca, donkeys, reindeer, water buﬀalo, yaks, Bali cattle, and mithan). There was never any local physical foundation for a farming economy. The southern half of the continent was fated not to develop into an independent system of urban civilization based on the central authority of states and empires (Diamond, 1999). In the northern part of the continent, the course of history was entirely diﬀerent, heavily inﬂuenced by the Egyptian notion of a divine kingship supported by an attentive elite of nobles, priests and scribes. Favored by a fertile river valley, Egyptian peasants of the 3rd millennium B.C. may have been able to produce three times more than was needed to meet their own consumption requirements. Surplus food production gave rise to a system of towns and the development of trade and culture associated with urban society. The earliest Egyptian contacts with the rest of Africa were surely commercial. Much value was placed on Nubian gold, which was mined in the hills between the Upper Nile and the Red Sea. Incense for the temples of Egypt was imported from the tree-lands close to the coasts of Eritrea and Somalia. By the late 3rd millennium B.C., it is believed, Egypt had exhausted its own sources of ivory and hardwoods, and its traders were making expeditions to Nubia and further south for these and other materials (Oliver and Fage, 1988). Early in the 2nd millennium, when the independent, black kingdom of Kush emerged, it was already highly Egyptianized. By the late 2nd millennium Kush had become virtually an Egyptian colony, a commercially valuable source of river-borne goods, providing relief from the Hittites who were becoming a political and economic threat to the Egyptians in the north. By the beginning of the 1st millennium B.C., the ferocious Assyrians had replaced the Hittites as the chief Eurasian power, and the slow decline of Egypt was clearly established. In the 8th century B.C. the rulers of Kush were strong enough to conquer their former masters, but in 666 B.C. the Assyrians under Ashurbannipal swept down upon Thebes, driving the Pharaoh Taharqa southwards into Kush, where the Egyptianized kingdom remained safe from Assyrian barbarity. Thereafter, despite the successive incursions of Persia, Greece and Rome in the north, the Kushites’ capital at Meroe survived as the last center of Egyptian urban civilization, free of the alien compromises imposed on the Ptolemies in the cultural homeland. In the period of its greatest aﬄuence, from the mid-3rd century B.C. to the middle of the 1st century A.D., Meroe prospered through the export of traditional African products: ivory, gold, ebony, animal skins, ostrich feathers, and slaves. By then Meroe had become a state based on a prosperous pastoral economy, a medium for the transmission farther south of political ideas related to the institution of central authority. But Meroitic civilization was Egyptian to the bone. In the words of Oliver and Fage (1988), the “gods worshipped in the temples of Meroe were the Egyptian gods. Its kings continued to call themselves the kings of Upper and Lower Egypt, and to lead the dedicated high-priestly lives of Egyptian Pharaohs … honoured as gods by their subjects and expected to behave with the capricious absolutism thought to be characteristic of divinity”. It was not the most enlightened legacy for the rest of Africa.

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Reﬂections. By the 4th century A.D., black Africa was still only peripherally aﬀected by the momentous achievements of Eurasian civilization. It was not well served by its Egyptian legacy, which reﬂected a lifeless and unprogressive civic culture. In most of the continent, thinly peopled by nomadic groups, there was still no conception of an urban future, much less of a law-based society with universally shareable values and principles. The Arabs had not yet arrived in the north with the message of Islam, and sub-Saharan Africa would not encounter the force of the Christian West for over 1300 years. Final Reflections As argued in Chapter Two, a broad, contextualist approach to international law requires a broad, contextualist treatment of its history. The excursion through classical antiquity has been a quest not for universally binding rules, or even for systems of more-or-less-equal states, but for early evidences of “international comity”: for examples of civic enlightenment and fair dealing with foreign peoples that can be attributed to a vision of common humanity. To what extent have we discovered “preconditions” of world law, as we conceive it today, in those early disparate civilizations? To those who emphasize the systemic and statist nature of international law (i.e. as a system of rules governing relations among states), the best evidence of international comity in classical antiquity is to be found in those early inter-state systems where treaty-making of certain kinds became regular, based on shared understandings about the value of pacts. Among the ﬁve civilizations reviewed, it is the system of Greek city-states that seems to have operated best as a treaty-making system of polities that were willing to accept one another at least as semi-independent states reluctantly accepting the primacy of the Athenian hegemon and its entitlement to certain prerogatives. To the extent that there was a shared sense of the sanctity of pacts, it seems to have depended on a sharing of the same gods and the same solemn oaths, rather than on a shared ethical conviction of the sanctity of contract. Positivists, who put most weight on formal acts of state consent as the foundation of international law, will ﬁnd little of signiﬁcance in classical antiquity except in the context of diplomatic privileges and, to a limited extent, in constraints on the conduct of warfare. Courtesy and mercy are not, after all, modern inventions. Natural lawyers, on the other hand, are deeply aware of the ancient heritage of Greek and Roman heritage of philosophy and its contributions to the concepts of natural justice, natural law, and civil rights, before and after Cicero. They may ﬁnd little of appeal in the scepticism and relativism of Confucius or the political cynicism of Kautilya, and yet be impressed by the ethical example of such great civic moralists as Asoka the Great and Marcus Aurelius, who should certainly be included among the ﬁrst idealists in the history of human rights, and among the founders of welfare statism. Their ethical example sustains the hope that international law can become a genuinely “inter-civilizational system” (Huntington, 1996). In Chapter Two, it was suggested that three “modes” of contemporary international law can be distinguished: the juridical (scientiﬁc), diplomatic (operational), and the

Universal Order in Classical Antiquity

societal (ethical) modes. The last of these, the ethical, was conceded to be the most recent to emerge in the new age of international civil society. Ironically, it is this ethical – non-scientiﬁc, non-operational – aspect of world law that seems to have the most ﬁrmly planted roots in the soil of those ancient cultures. What was lacking was an appropriate “arena” for the merger of international law and diplomacy. Finally, the juridical legacy of Rome must be acknowledged as the most important inﬂuence on the modern “legal mind”. Even lawyers trained in the common law system are indebted, more than they are likely to know, to the Roman jurists who, even in the Age of Roman Hegemony, created the vocabulary of international, as well as civil, law. The Romans’ technical craftsmanship made it possible, much later, for the law of nations to evolve into a professional discipline.

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5 Universal Authority in Pre-modern History

Descent into Darkness It is part of Western self-imagery to regard international law as a product of modern Western civilization. Admittedly, our search for antecedents of world order in primitive antiquity revealed only a scattering of seeds on rather barren soil. Some progress in the classical era, however, has been perceived. Early practitioners of civic enlightenment such as Asoka the Great, Marcus Aurelius, and Antoninus Pius, and advocates like Confucius and Buddha, could be regarded as remote contributors to the civic benevolence model of modern international law. The possible emergence of a system of world law and order was beginning to be envisaged by progressive jurists such as Cicero. Moreover, several examples were found of ancient systems of interstate diplomacy and treaty -making that seem to have operated with some regard for reciprocity and mutual beneﬁt. Images of distant world history oﬀer also a pre-vision of modern diplomatic immunity and privilege and sovereign prerogative, and of the statist values underlying the autonomy model of international law. Warfare in antiquity was mostly a horrendous inhumanity, but the need for norms to contain, if not prevent, wars was beginning to be considered. But now we are moving into a more diﬃcult period of world history. In the West especially, the record deteriorates. Although the oﬃcial and scholarly accounts of the Greek and Roman eras are subject to various interpretations, they were impressively voluminous and certainly more factual than fanciful. After the demise of Rome there ensued a more mysterious, less accessible, age of which we have only partial knowledge. By the last quarter of the 4th century the Roman world extended throughout Western Europe from Britain to the entire Mediterranean basin, including the North African coastal territories, and as far east as the Levant, including Northern Mesopotamia but not Arabia. In the Roman Empire, Greek was the language of the educated class in the east, Latin in the west. Only a few were able to read both languages. Roman law applied, at least nominally, in all Roman provinces, but in many areas it coexisted with local customs. An impressive network of roads, bridges and ports made transport and communication relatively easy and safe throughout the Roman world (Ganshof, 1970). The theory of unity inherent in the Roman concept of empire was not entirely ﬁctitious.

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Roman authority, however, was under constant challenge. The Germanic tribes on the periphery were unsubdued. To the east, the territories of the Ostrogoths, Visigoths, Vandals, and Lombards were in open hostility. In the north, the Angles, Jutes, Saxons, Frisians, Franks, Alemans and other peoples were a further threat to the security of the Roman Empire. Most, ruled by hereditary chiefs, were not so barbaric. They should probably be regarded as alternative systems of civilization. After all, the Goths in the late 4th century were being Christianized, albeit with variations that did not have the approval of the Church established in Rome. In truth, however, none of these nations was suﬃciently advanced to accomplish feats on the level of GraecoRoman, Chinese or Indian civilization. In the ﬁnal decade of the 4th century the Roman Empire was already in the terminal stage of its decline. The death of Emperor Theodosius in 395 had resulted in the ﬁnal split of his realm into distinct eastern and western empires. The newly Christianized Visigoths were rampaging southward under Alaric (c. 370-410), their aristocratic Romanian chief. In 410 they captured Rome, but did little to deserve their later reputation as ruthless barbarian plunderers. The foreign occupation of Rome, the ﬁrst in almost 800 years, would bring back the legions from Britain. It is possible that the withdrawal from Britain resulted in cancellation of a plan to mount an assault on Ireland, which was believed by the gold-fevered Roman commanders to be rich in minerals – the size of the arena excavated at Chester suggests preparation for more than the usual ceremonial purposes. The dimming of the imperial glories of Rome provided further inducement for St. Augustine of Hippo to glorify “The City of God”. Shortly, in 432, St. Patrick would begin his Christianizing mission to Ireland, and seven years later the ﬁnal summary of codiﬁed Roman law (the Codex Theodosianus) would be produced. Symbolically, the year 400 can serve in the West as the beginning of a new phase of world history. The 5th century brought not only the ﬁnal demise of the western Roman Empire but also the breakdown of the Mediterranean system of civilization. The results were catastrophic. The Ostrogoths in Italy, the Visigoths in Spain, and the Franks and Burgundianus in Genoa all endeavored to utilize their Roman inheritance, and the 6th century was less disruptive than the 5th, but the period from 640-718 was marked by widespread dislocation. “Commerce shrank to nothing. Greek and Syrian merchants disappeared from the cities of Gaul and Spain, and agriculture became the mainstay of the economy ... [T]he western territories became a society of landlords and peasants, of villages and estates, organized largely for subsistence” (Barraclough, 1976). Yet, as Thompson (1972) reminds us, there was no sudden end to the Roman Empire. For over two hundred years before the “fall” there had been a succession of waves of Germanic invaders that were part of a larger pattern of steady encroachments. Though often non-violent, these incursions brought in totally alien customs and ideas. In Thompson’s mind, the early Germans, whose successors would come to dominate Central Europe and eventually change the course of European history, did not adjust easily to the grand Roman ideas of government. “The Roman”, he suggest, “was obedient, hardy, persistent, knew how to command, administer, and govern; whereas the German was highly individualistic, a ‘hospitable’ host, but a truculent

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neighbor”. The establishment of the German kingdoms between 375 and 568 marked the end of the ancient world. In the history of the East the year 400 is less meaningful. In China a much more impressive civilisation was evolving, but the landscape then was still thick with the dust of battle. The glittering T’ang dynasty (618-907) was still two hundred years away. In India the classical age of Gupta culture was waning. Chandra Gupta II (the “Son of Valor”) was continuing his father’s policy of expansion, but fragmentation of the Gupta empire would soon begin and continue until the Arab expansion in the 8th century. At the other end of this time-line, there are numerous ways of determining the close of pre-modern history. The year 1500 can be suggested as the suitably rounded date of the birth of the modern world. Thereafter the political landscape would be changed forever, as powerful states emerged with the capacity to build empires on a global scale. It would be a period energized by remarkable European achievements. By 1500 William Caxton (c. 1422-1491) and other early printers had followed Gutenberg with improved presses that would eventually permit the expansion of literacy beyond a tiny scholarly or monastic elite. Christopher Columbus (1451-1506) had discovered America and dramatized the Age of Exploration. Desiderius Erasmus (c. 1466-1536) was 35 years old, returning to England deeply engaged in his humanistic challenge to late medieval dogma, superstition, and obscurantism, and in his continuing search for a wealthy patron. Martin Luther (1483-1546) was a bright and talkative student, not yet in pious revolt against his father’s wish for a lawyer in the family. Leonardo da Vinci (1452-1519), son of a Florentian notary, had already revealed an unprecedented combination of artistic and scientiﬁc genius, a living symbol of the creativity of the human spirit. Between 400 and 1500 most of the world moved out of almost total darkness into a period very clearly diﬀerent from classical antiquity. Yet it was an age when most spent their existence on earth with remarkably little awareness of the past, and very little reason to expect a diﬀerent future. Only a few humanist scholars of the Middle Ages displayed an acute awareness of history (Black, 1998). East and West, there was very little conception of human or social development. All mortals had their station in a life that was prescribed by fate or custom or divine intention. As we look back, we see that period of lesser darkness in the West as an in-between time, oﬀering a bridge between the expanding consciousness of classical antiquity and the intellectual and artistic explosiveness of the Renaissance. So we are likely to interpret the Middle Ages as a precursor to what we know replaced it, rather than as an era in its own right. Especially between 800 and 1400, the Western world acquired a complex of social and civic characteristics that have been designated by posterity as medieval and seen to have been shaped by the feudal ordering of society. Questions. Was there a feudal sense of order? How did it diﬀer from public order patterns of the more distant past? Did it embrace a conception of universal authority?

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Feudal Order One of the stickiest questions in the treatment of world history is how to employ the concept of “feudalism”. In the case of China, many historians have chosen to apply the term “feudal” to the Western Chou (Zhou) period (1122 or 1027 B.C.-770 B.C.), when the former Shang aristocracy and the Chou ruling elites merged their identities. Within the new system of rule, the Chou king and his successors were accepted, as a consequence of conquest, as entitled to preside over ﬁfty or more vassal states. Investiture of the head required an elaborate delegation of authority by the vassal chiefs through a procedure that was contractual in nature. In return for the tributary ritual of symbolic gifts, the Chou sovereign bestowed on each vassal the people of a certain area. It was the people, not the land, to which the vassals and their descendants would later claim the rights of overlordship. Kinship was the principal element within this network of political rights and obligations. But the new sovereign, unlike his predecessors, claimed legitimacy not by descent from his ancestors but by having secured the mandate of Heaven. Uniquely in world history, the Chinese concept of feudal authority rested not on the accident of birth, but on the possession of virtue (Fairbank and Goldman, 2002). It was the Chinese feudalists who invented the idea that the ruler had a moral obligation to govern benevolently. It is from the same “feudal” period that we can trace the beginnings of a professional bureaucracy with suﬃcient capacity to support a centralized form of government, a system of “feudal order” (Reischauer and Fairbank, 1960). European society in the Middle Ages, especially between 800 and 1400, has been described as “feudal” for a broader civic reason: oﬃcial duties, both civil and military, were discharged within a living web of personal loyalties inherent in the social structure, not as a result of patriotic sentiment or a sense of duty to one’s “state”. In medieval Europe, the precise role that the king at the center performed, and the responsibilities expected of him, varied considerably from country to country (Jordan, 2002). Despite the emergence of the modern state in the 16th century, traces of feudal society would remain evident in many European countries, especially in parts of central Europe where local rulers continued to pay homage to the Holy Roman Emperor down to the end of the 18th century. As long as the emperor in the Christian West was believed to enjoy divine approval, he could claim to possess, in theory, something close to universal authority. Sociologists would later advance the theory that all societies have undergone one kind of “feudalism” or another as an early stage in social development. Karl Marx (1818-1883) and others were to exert the inevitability of feudalism prior to its historically determined replacement by capitalism and the rise of the bourgeoisie. Others have preferred to use the adjective “feudal” as a political term to refer to a period of decentralized government, when public authority was fragmented among a large number of power-holders. For centuries scholars have argued over the hypothesis that the feudal system of divided authorities was essentially anarchic. On the other side, many historians have insisted on the meaningfulness of “feudal order”, which they see to have rested on an underlying sense of social and spiritual unity. By this reasoning, the Middle Ages in Christian Europe witnessed the rise of a common

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consciousness that created a mental universe of general authority before the development of a modern system of political rights and institutions. Because of the pejorative usage of the term “feudal” in contemporary political thought, there is often a reluctance to use it as a tool of analysis. It is of particularly questionable utility in the context of Chinese history. Fairbank and Goldman (2002) reﬂect the discomfort shared by many specialists in that ﬁeld. “While ‘feudal’ may still be useful as a swear word, it has little value as a Western term applied to China. For instance, an essential characteristic of feudalism, as the word has been used with reference to medieval Europe and Japan, has been the inalienability of the land. The medieval serf was bound to the land and could not himself either leave it or dispose of it, whereas the Chinese peasant, both in law and in fact, has been free, if he had the means, to purchase land.” If the word “feudal” is to retain a valid meaning for European and other institutions, it cannot, they conclude, be very meaningful in the Chinese context. Reﬂections. As we shall see later, international relations theorists in the present age have detected an erosion in the world inter-state system that became established in the 16th and 17th centuries. Some see the present period as the Age of American Hegemony, and therefore as an era that can be analogized, up to a point, with the classical Age of Roman Hegemony. Others see an erosion of America’s hegemonial status, arguing that the United States enjoyed most of the prerogatives of world hegemony even during the Cold War years of apparent rivalry between the United States and the Soviet Union. Those who now project a steady decline of American power and a growing role for China and the European Union argue that we are already at the threshold of a new era of multiple power centers that has much in common with the medieval world of fragmented authorities. Faith, Benevolence, and Universality The pre-modern stage in human development is viewed today as a period dominated by religion. It was the Age of Faith (Durant, 1950), featured by the maturation of Hinduism, Buddhism, Confucianism, and Judaism, the development of Christianity, and the birth of Islam (Parrinder, 1971). Secularists have been reluctant to give it their blessing as an age of reason. Religion has always been a crucial element of human thought and development. It seems to reﬂect a universal longing for assurance that life is not accidental or meaningless. In most cultures religious faith cannot be entirely disentangled from the sense of morality. Most religious traditions have, in some degree, nurtured the virtue of benevolence. But fear and other emotions have played a darker role in keeping the faith intact (James, 1982). Religious history is full of shadows. At all stages – primitive, ancient, pre-modern and modern – the story of religious institutions has included, at its worst, a determination to exclude or destroy those committed to the wrong deities. Sadly, we have to acknowledge the ugly side of religion. Despite recent eﬀorts by moderate religionists to discover a common ecumenical humanity, the eﬀects of religious tradition on

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the quest for universal benevolence have been so mixed that many contemporary international lawyers might prefer to invoke the heritage of secular humanism (Auer, 1951). Questions. Are there, nonetheless, dimensions of the major religions that could be regarded as precursors of the modern value of civic benevolence? How much were the early religions concerned with the search for the good society? Was preoccupation with matters of faith a barrier to the application of reason to improvements in the human condition? Should pre-modern religion be credited with a seminal role in the promotion of a universal humanity? How much tolerance was there among religions serving diﬀerent gods? Hinduism. By the 5th century A.D. the culture of ancient India had long since settled into a deeply ingrained pessimism. According to Hindu scripture, human existence on earth was an unending cycle of birth and death. The universe was imagined to be immeasurably long, a continuous process of development and decline. Most schools of early Indian philosophy found little comfort in the cosmos, and little good was seen to be available in the material world (Smith, Huston, 1958). Yet Hindu scholars diﬀered on the merit of total detachment. For ordinary Indians, it must have been diﬃcult to escape the general outlook that human beings were of limited worth, condemned to the hope of earning a favorable re-birth in the eternal quest for spiritual salvation. The strand of hopelessness in ancient Indian thought was strong enough to produce a sharply stratiﬁed social system, and a tradition of acquiescence born of the conviction that such an arrangement was divinely prescribed. It was natural that society was organized into four classes (varna) and innumerable castes (jati), and that there were four stages of life (ashramas) for each man (student, married householder, retiree and sage). For each class, caste and stage there was an appropriate code of conduct (dharma), unenforceable in secular law but rendered invincible by a more fundamental social sanction. Indians then inhabited “a moral world in which the law of karma never wavered, ensuring that every deed, whether good or bad, received due retribution”. Although Hindu thought reinforced the inequality of the caste system, it also oﬀered hope, in the next world, to the humble and poor (Vohra, 1997). In theory, pre-modern Hindu culture was tolerant of other religions, more so than most god-based societies. As a matter of principle, it was accepted there were “many paths to the summit”. God’s will was served in diﬀerent ways in diﬀerent cultures. Tragically, the tolerance of the pre-modern Hindu sages did not become the living law of daily life. The future of Indian society would continue to be disﬁgured by frequent eruptions of inter-communal hatred and violence despite the honorable record of Indian ethics. Buddhism. Siddhartha Gautama (c. 560-483 B.C.) was born a prince of the warrior Sakya clan in northeast India. Even in conditions of luxury, he seems to have revealed a serious, meditative disposition and a ﬁrst-class intellect. In his 29th year

Universal Authority in Pre-modern History

he renounced all the comforts of home, including a wife and son, and embarked on a remarkably simple and virtuous life devoted to a “religion of inﬁnite compassion”. The religion preached by Gautama Buddha was devoid of institutional authority, ritual, metaphysical speculation, and tradition. The fatalism inherent in traditional Hindu society was his target. The challenge to be met was the replacement of apathy by a new ethic of self-directed eﬀort that was intense and remorselessly demanding. This required an aﬃrmation of the mind. The original Buddhist thought has been characterized as empirical, scientiﬁc, pragmatic, therapeutic, psychological, individualistic and even democratic (Smith, Huston 1958). Human suﬀering was seen to be universal, but deliverance from misery was achievable through rightness in thought, conduct, and inner discipline. By the 5th century A.D. these Buddhist notions had found their way into Hinduism. Vishnu and Shiva had emerged as major Hindu gods, and Buddha had gained entry into the Hindu pantheon as an incarnation of Vishnu. Like Jainism, Buddhism promoted the virtue of non-violence, which in the form of ahinsa had a profound eﬀect on Oriental thought, leading to the paciﬁst political ethic of Mahatma Ghandi in modern times (Vohra, 1997). By 400 A.D. Buddhism was beginning to decline in India, where it had gathered a following, especially after the conversion of Asoka the Great (c. 274-232 B.C.). In its Theravada form it had migrated to the south of India and Ceylon, giving way to the more liberal and tolerant Mahayana branch favored by Asoka. This alternative version of Buddhism stressed inter-personal involvement more than personal introspection, salvation by grace rather than eﬀort, and compassion (karuna) over wisdom. Mahayana Buddhist encouraged lay participation in rituals and petitionary prayer. It looked outward as much as inward. The pre-modern period of world history coincided with the extraordinary expansion of Buddhism throughout Southeast and East Asia: the Theravada branch to Ceylon (Sri Lanka), Thailand, and Cambodia, the Mahayana to Tibet, China, Mongolia, Korea and Japan. Thereafter Theravada Buddhism would retain its unity, through a common devotion to the original teaching of Buddha, whereas Mahayana would continue to splinter into a growing variety of sects. Descended from one of the great teachers of antiquity – a teacher comparable perhaps with Socrates – pre-modern Buddhism had a more explicit didactic purpose than pre-modern Hinduism. Structured as a system of moral education, Buddhism has concentrated on personal and social guidance, on community building, and on the virtue of humility, even to the point of self-abnegation. Yet, despite the quietude of Buddhist ethics, violence and intolerance have been more than occasional features of the history of the Buddhist region. Confucianism. In the centuries following the period of classical antiquity, the various schools of Chinese philosophy continued to contend. Not even Confucianism prevailed at any one time over the entire empire. In certain regions, at certain times, it seems that new-Taoism or neo-Legalism, rather than neo-Confucianism, was in favor among the power-holders as the preferred vision of the good society. All three exerted complementary inﬂuences on the way educated Chinese thought and lived.

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Both the T’ang dynasty (618-907 A.D.) and the Sung (960-1279) were eras of distinguished accomplishments in artistic and intellectual as well as commercial activities, and much of the creativity seems, to the modern reader, attributable to the ﬂux of competing ideas. In the early T’ang period the foundation was laid for the famous examination system, which would become one of the most distinctive achievements of Chinese civilization. In no other cultural system has so much attention been given to the need to cultivate enlightened leaders. In classical Greece, Plato and other philosophers did instruct the youth of wealthy and powerful families on their moral responsibilities as future leaders, but although their teachings have come down to us as famous literary works, their inﬂuence was relatively short-lived within the boundaries of the Hellenic culture, and indeed were hotly contested in their own time. By contrast, the Chinese ideals of civic benevolence, mostly but not entirely descended from Confucius, were assured of permanence and institutional commitment through the examination system. Frequently, throughout the T’ang and Sung periods of pre-modern Chinese imperial history, the system was under attack. Many of those forced to endure the ordeal looked back to an idealized, gold-tinted past, in which true merit had supposedly been recognized and brought forward by simpler procedures (Pulleyblank, 1960). Much was made of the bother of having to prove one’s merit in highly formalized and impersonal examinations rather than through the discernment of an oﬃcial of rank and good judgment. It may be that the successful examinees, who earned the right to rule China benevolently, had less reason to complain of the steepness of the ladder they had been obliged to climb. In later centuries, the examination system would become the principal mechanism for social advancement in China and the most rigorous test of civic benevolence the world has known. Despite the eventual triumph of the examination system as the “ladder of success”, it had to co-exist for centuries with the older recommendatory system of the Han dynasty, whereby provincial and local oﬃcials were required periodically to recruit meritorious men for government service. The search for talent focussed on certain categories: men known for their qualities of character (e.g. ﬁlial piety, fraternal love, industry, incorruptibility) as well as their intellectual, technical and literary skills. Many were recruited because of their special knowledge of the Confucian classics, law, calligraphy, cosmology, astronomy, music, etymology, history, natural science, arithmetic, or military aﬀairs. It was even found necessary to seek out specialists in “occult prognostics”, who were familiar with natural anomalies and calamities. The range of criteria was broad enough to encompass a “perfect mixture of Confucian and Legalistic concepts” (To, 1962). However, the recommendatory system was subject to nepotism, bribery and other forms of corruption. So by 605 it gave way entirely to the examination system alone. The ming-ching degree, which required candidates to memorize prodigious tracts of the classics, yielded in the T’ang period to the chin-shih degree, which put greater emphasis on creative writing. However, that examination became so diﬃcult that only thirty or so degrees were granted annually, and many of the candidates were ﬁfty years old before they ﬁnally graduated. The prestige accruing to the successful

Universal Authority in Pre-modern History

few was so high that even the most ambitious aristocrats, who had other means of entering government service, sometimes vied with commoners for the elusive honor of merit. Remarkably, the Chinese examination system not only endured but continued with relatively little change for almost 1,600 years, down to the ﬁnal demise of the Chinese empire. Despite its ﬂaws from a modern educational perspective, it continues to impress posterity with its rigorous devotion to the ideal of civic benevolence through insistence on oﬃcials with exceptional skills of the kinds most admired in the Chinese culture, and with years of sustained immersion in its greatest ethical works. Judaism. Mists conceal the origins of Judaism. Controversy continues to divide scholars over the dynamics of the long development of the Jewish prophets’ image of God. Armstrong (1993) has suggested that when they attributed their own human feelings to Yahweh, they may have been creating a god in their own image. Their one and only God was a jealous deity, who refused to compete or co-exist with rivals. The earliest ﬁgure in the history of Judaism is Abraham the patriarch. According to the Book of Genesis, God commanded Abraham to take his people to a new land, and to serve as the carrier of the one and only true faith to “all the families of the earth”. The world outside was hostile, and Abraham’s commitment would have to be steadfast, transcending all manner of adversities. Since then, in the words of Paul Johnson (2001), no race “has shown so strong and persistent an instinct to migrate, such courage and skill in pulling up and replanting its roots”. The value of Genesis as a historical record has been vigorously debated for over two hundred years. For many modern scholars, the ﬁrst ﬁve books of the Bible (the Pentateuch) should be treated respectfully, not as literal fact but as orally transmitted legend in the nature of sacred myth. The beliefs and practices passed down may have had their origin a thousand years before their ﬁrst transcription in the second half of the ﬁrst millennium B.C. It adds to the mystery of the ﬁrst of the great monotheistic religions that there is no historic certainty about its ﬁrst great name. The Jewish God, unlike earlier deities, is unvisualized, but imagined as the creator of the moral scheme of human aﬀairs set out in Genesis and conﬁrmed in Deuteronomy. Noah and all the other ﬁgures of Jewish religious history described in the Pentateuch are reﬂectors of the moral categories established in the earliest chapters of the Bible. Abraham himself, as founder of the Hebrew religion and nation, is presented as a man of peace, justice and humanity, generous to strangers as well as devoted to the welfare of his own people. He seems to have been familiar with legal concepts and procedures, like Mohammad at a much later stage of cultural development. Both might be said to have encouraged the idea that virtue resides in strict conformity with the laws of God – or, more accurately, both are depicted as exemplars of an existing cultural attitude among the peoples of the Near and Middle East that virtue depends on close attachment to sacred text. Most of the pagan gods had been territorial, but Judaism represents a uniquely close bonding between religion and peoplehood. The Hebrew Bible came together slowly over the ﬁrst millennium of Judaism. Reﬂecting the inﬂuence of many cultures, it moved from the original narrow view of God as a national deity to a universal

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creator: a god of all nations, later referred to as Jehovah. This god demands absolute obedience under the sanction of severe penalties, but is also a loving and compassionate father. The paradox of a deity both stern and benevolent remains an essential attribute of the Jewish faith (Goldstein, 1971). Jesus of Nazareth considered himself the Jewish Messiah, and was accepted as such by many Jews. But the Roman death of Jesus, as a common criminal, marked the end of his inﬂuence on most of his Jewish followers. “It was one thing to suggest that men of the caliber of Plato or Alexander the Great had been sons of a god, but a Jew who had died a disgraced death in an obscure corner of the Roman empire was quite another matter” (Armstrong, 1993). In the period from the fall of Rome down to the Middle Ages, no systematic Judaic eﬀort was made to bridge the gulf between reason and revelation. Increasingly throughout that millennium, Jews saw their religion threatened by three independent Western rivals: the new value systems of Christianity and Islam, and the older Graeco-Roman humanist tradition. The Karaite scholar Sa’adia (882-942), inﬂuenced by Islamic philosophers, argued that the truths of religion may be arrived at by reason alone, that it is a religious duty to use one’s reason to verify these truths, but that it is a proof of God’s love for mankind that he granted to all immediate awareness of these truths through revelation. This rationalistic position rankled many of his Jewish contemporaries, but would have some inﬂuence on Thomas Aquinas. Two centuries later the Spaniard Mainonides (Moses the Maimon) (1135-1204), who spent most of his life in Egypt, attempted a reconciliation between Jewish theology and the prevailing (Islamic) interpretation of Aristotle. Despite its rationalistic orientation, the work of Maimonides gradually established itself as the authoritative medieval philosophy of Judaism (Johnson, Paul, 1987). However, despite the relative open-mindedness of Judaism’s great philosopher of the Middle Ages, it was in this period that the Jewish religion acquired its reputation for fastidious attachment to the minutiae of Jewish law, and for looking inwards instead of outward to the commonality of the human race. Christianity. Of all religions, Christianity has had the widest impact on the future course of world history. Yet very little is known about the life of Jesus (c. 4 B.C.-30 A.D.). It is not even clear whether his ministry lasted much more than one year. His deeds and sayings have come down exclusively through the four Gospels, which do not entirely coincide. But there is suﬃciently corroborated evidence that Jesus and some of his associates, such as the extremist Simon the Zealot, were regarded as a threat to the Jewish nationalistic establishment and, of course, to the religious leaders of Jerusalem. The cruciﬁxion of Christ was precipitated by conviction on a charge of blasphemy before the Jewish court, for holding himself out as the promised Messiah: the son of God, and thus exalted above all the Jewish prophets. It seems unlikely the trial of Jesus was any fairer than that of Socrates, which was also politically motivated (Stone, 1989). Pontius Pilate, the skeptical Roman prefect of Judea, part of the province of Syria, chose to “put aside the letter of the Roman law to avoid further trouble in a violent city” (Roberts, 1992).

Universal Authority in Pre-modern History

Pilate, an aristocrat of Samnite descent, had been appointed by the Emperor Tiberius, who is known to have insisted on eﬃcient provincial administration. Pilate’s 10-year term of oﬃce was unusually long, and Judea was a notoriously diﬃcult posting. It is most unlikely that his demanding master would have kept Pilate there in such a role if he had borne any resemblance to the weak bungler of legend. The Judean prosecutor came close to taunting the powerful magistrate: “If you let this man free, you are not Caesar’s friend, for every one who makes himself a king sets himself against Caesar”. The reference was to the special rank of amicus Caesaris, for which Pilate would soon become eligible – perhaps still a rare distinction for an oﬃcial of Samnite descent. There is evidence he believed Jesus to be innocent, but treason is a tricky oﬀence. It may be suspected that Pilate’s reputation in Rome depended more on his astuteness in placating the local nationalists than on his devotion to the pursuit of justice. He was to end his days peacefully at Vienne in Provence, unaware of the mixed reputation that posterity was planning to bestow upon him (Maier, 1970). Given the future impact of Christianity on world history, what indeed if Pontius Pilate had decided to spare Jesus? Would Christianity have survived without the Cruciﬁxion (Eire, 2001)? The founder of Christianity lived and died as a Jew, clearly in the line of the Jewish prophets. Fulﬁllment of the law was essential to a good life. His message was, however, more intimate, emanating from a tenderness for all of God’s creatures. It spoke of universal love, even more softly than the teachings of MoTi. Deliverance from sin was available to all, Jews and non-Jews alike. The god he introduced demanded “mercy not sacriﬁce, compassion rather than decorous liturgy” (Armstrong, 1993). His compassion was engaging, unlike Buddha’s which led to detachment. As reﬂected in the original gospels, the Christian god cared for individuals, not just believers. The hope and charity conveyed seemed likely to win converts less by argument than through active benevolence (Bowle, 1977). Yet, unlike Confucius, Jesus was apparently prepared to criticize secular authority, even although the record is not at all clear whether he became directly involved in confrontation. It is uncertain that Christ’s tiny band of followers would have been able to keep the ﬂame alive but for the lynching of St. Stephen, the ﬁrst Christian martyr, by a Jewish crowd around 45 A.D. One of the witnesses was an intellectual Pharisee from Tarsus by the name of Paul (c. 10-c. 70), a Greek-speaking Jew, whose famous conversion led to a life of sustained meditation, writing, preaching, hardship and persecution in the name of Christianity. Without his dedication, it seems improbable that the new religion would have assumed its worldwide stature. Unlike Jesus, St. Paul rejected the law of the Jewish prophets, and held out a universal vision that forced Christianity out of the temple. Conceptualized by a Greek-educated scholar, the new religion became the ﬁrst to be articulated in cosmopolitan terms, instantly detachable from its point of origin. The Christianization of the late Roman emperors, before and after 400 A.D., occurred as the culmination of a gradual process of conversion among Western sophisticates. Accurate ﬁgures will never be available, but it seems clear that particularly massive persecutions of Christians had taken place in the reign of Diocletian between 284 and 305, after a period of implicit toleration of Christians by his imperial pre-

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decessors. Many historians have agreed to attribute the policy of persecution to his subordinate Caesar Galerius, a “rabid pagan”, since Diocletian himself seems to have been a man of old-fashioned Roman piety. Constantine the Great (c. 284-337) may have witnessed the persecution of Christians in 202, three years before he was proclaimed Augustus by the army on the death of Constantius in the British town of Eboracum (York). He was not a softhearted man, but he surely realized the political implications of religious enthusiasm among the people. In 313, as emperor of the western provinces, he met with his eastern counterpart Licinius. Later they signed an edict proclaiming a joint policy of full toleration of all religions. Thereafter he allowed himself to be held out as the chosen servant of the “highest Divinity”, which he identiﬁed as the Christian god. After his victory over Licinius, whose ambitions had proved competitive with his own, Constantine extended the imperial embrace of Christianity over the entire reuniﬁed realm. He re-built Byzantium, now re-named Constantinople, as the Christian sistercity of Rome. It may be accurate to depict Constantine as a “genius driven without surcease by ambition and lust for power”, as a “murderous egoist who possessed the great merit of having acted accordingly” (Burckhardt, 1956). Neither piety nor benevolence, we can assume, played any role in the conqueror’s conversion. His embrace of Christianity was dictated by cynical political strategy.Yet his famous symbolic act, seen in retrospect, was one of the deﬁning moments in world history, when a new order of civilization, the Christian West, emerged from the womb. At the death of Constantine, the policy of partitioning his massive domain within the family did not prevent the eruption of civil war, but “assassination simpliﬁed the scene” (Durant, 1950). One of the few male survivors of this slaughter was the nephew Flavius Claudius Iulianus (333-363), whose bookish interests in his youth may have saved him from suspicion of cultivating dynastic ambitions. His meditative character did not seem to prepare him for the rigors of the battleﬁeld. Yet, when called upon, he proved to be an exceptional military leader, bestowed by his soldiers with the ultimate compliment of comparison with the great Julius Caesar. Without opposition, the popular soldier-scholar ascended the throne in the name of Julian in 361. Constantius, Julian’s immediate predecessor, seems to have been a devout Christian, unlike his imperious father. It might have been supposed that Julian would continue the Constantian policy of Christianization. But the books absorbed by Julian in his youth included the works of Greek and Roman antiquity. By 351, at the age of 18, he seems to have secretly abandoned Christianity, and set himself on a separate course that would earn him the sobriquet of Julian the Apostate. At least it seems clear that he wished to restore the traditional Roman pagan temples and priests to the level of equality with the rising Christian institutions. The ferocity of Christian reaction ruled out the possibility of ecumenical reconciliation, and intolerance bred intolerance in the form of imperial discrimination against the Christian dissenters. To secularists at least, Julian seems in retrospect to have been prepared, in modern reformist fashion, to tolerate a diversity of faiths, but was condemned to an age less tolerant than he.

Universal Authority in Pre-modern History

By 400 A.D. Christian missionaries had ventured further aﬁeld than evangelists of any other faith, beyond the limits of European territories into Africa, as far as Ethiopia, and the Middle East. By then the Christian community had “succeeded in separating out of its body ascetic fanaticists (Montanist and others) as well as speculative enthusiasts (the Gnostics) who sought to make of Christianity a framework for Platonic and Oriental ideologies. With Manichaeism, the newest and strongest of this character, the struggle had just begun” (Burckhardt, 1956). The temper as well as the form of Christian theology for the next thousand years would soon be determined by one of the most powerful intellectuals of the pre-modern era. Aurelius Augustinus (354-430) was born in the Roman province of Numidia in Algeria. His father, Patricius Herculus, was a pagan, a Berber beneﬁciary of Emperor Septimius Severus (146-211), himself an African, who conferred rights of Roman citizenship on all freemen born in those African territories that had been organized into municipalities. Patricius, a member of the municipal council, took advantage of this entitlement, assuming a Latin name and a Roman toga. Augustine’s mother, Monica, was born into a Christian home. She was the product of a strict upbringing that apparently did not save her from a mildly sinful weakness for wine (Smith, Warren, 1980). They were not wealthy, but owned some land and were willing to invest their modest resources in the education of their gifted son. For university studies, Augustine was sent oﬀ to Carthage, later remembered in his Confessions as a “hissing cauldron of lust”. His parents hoped he might gain entry into government service, but philosophy and theology became instead the ﬁre of his life. St. Augustine’s ﬁre was kindled by his early association with the Manichaean Church, whose doctrine was derived from the Iranian Gnostic scholar Mani (or Manichaeus) of the 3rd century. The Manichaeans regarded all earlier religions as culturally determined, linguistically restricted, and thus distorted versions of the original truth taught by the great prophets, including Buddha, Zoroaster and Jesus. Their mission was to rediscover and deliver a universal message. The cult was directed by the “elect”, whose virtue prescribed an ascetic and celibate life withdrawn from the world. As one of the “hearers” under their charge, the young Augustine was impressed by the vision of a universal truth, if not with the cult’s example of celibacy or its metaphysical foundations. So he left Carthage for Rome to take up a teaching career. Through exposure to St. Ambrose, he was converted to Christianity and baptized in the spring of 387. It became his life’s achievement to reconcile the teachings of the New Testament with the dominant Platonic traditions of classical Greek philosophy, and to administer the faith as Bishop of Hippo close to his Algerian birthplace. The Augustinian fusion of Greek philosophy and Christian theology resulted in the concept that human conduct should be directed to the achievement of happiness or well being, which was assumed to be the goal of all human beings. The term amor was applied to the moral dynamic that governs our conduct, if properly directed. The sinful love of one’s self had to be deﬂected to higher forms of love, including the love of others and, of course, the love of God (Gilson, 1961). Augustine’s great work, The City of God, was his answer to Plato’s Republic. It rests on a dualistic conception of history. On the one hand, the “natural man” lives for

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himself, seeking material well-being and a temporal peace. On the other hand, the “spiritual man” lives for God, seeking “spiritual beatitude” and a peace that is eternal (Dawson, 1962). In Augustine’s interpretation of world history, two “lives” – personiﬁed by Socrates and Christ – had built two “cities”: “the earthly, which is built up by the love of self to the contempt of God, and the heavenly, which is built up by the love of God to the contempt of self ”. Modern scholars have diﬃculty in discovering that Augustine had any concept of human progress, given his view of secular history as essentially static. Indeed his theological convictions led him to outright dismissal of all claims to historic evidence of civic benevolence. He disputed Cicero’s thesis that the secular state is, or can be, founded on principles of justice (Smith, Warren, 1980). Augustine, we have been reminded, “left us with a diﬃcult heritage. A religion which teaches men and women to regard their humanity as chronically ﬂawed can alienate them from themselves. Nowhere is this alienation more evident than in the denigration of sexuality in general and women in particular ... In fact Augustine was clearly puzzled that God should have made the female sex ... Woman’s only function was the child bearing which passed the contagion of Original Sin to the next generation, like a venereal disease” (Armstrong, 1993). So he “stands in strange company – with Plato, for example – as a Founding Father of puritanism” (Roberts, 1992). As the Western medieval period begins to emerge from even darker shadows, we ﬁnd ourselves increasingly confronted with a civilization based on strict religious dogma to an extent that some readers may ﬁnd repellent. In the medieval world, theology was the “queen of the sciences”. Most of us today are certainly more interested in ethics than theology. Modern Christians generally appreciate the ethical teaching of Jesus more than the theological arguments of Paul and Augustine. Doctrines are generally tedious or annoying. For many religionists today, as well as all humanists, the essence of religion is ethics. “High religion always includes, of course, a summons to above-average morality”. Yet it may be a “fatal blunder” to assume that the eyes of religion are “ﬁxed primarily on this summons. Its attention is on a vision which, almost incidentally and as a by-product, sets morality in motion” (Armstrong, 1958). Many of us believe ourselves cured by the later Enlightenment of medieval myths and superstitions. Western humanists who look to modern international law as a model of benevolence may, then, see little to be gleaned from the writings of St. Thomas Aquinas (1224-1274) and the caste of mind he represents. Yet he too, like Augustine, is an important bridge-builder of world history: a thinker and teacher of extraordinary inﬂuence on later generations. Aquinas was born into a prominent noble family in the south of Italy. In 1239, at the age of 14, he began the study of liberal arts at the University of Naples, where he came under the inﬂuence of the Dominicans. Five years later he disregarded his family’s wishes and joined this new order of friars, impelled by their devotion to the life of study. Despite their hostility to the Dominicans and Franciscans, the secular masters of the University of Paris eventually accepted Aquinas as a teacher of theology, twice, interspersed between teaching duties elsewhere. He died before his 50th birthday, soon after establishing his own Dominican school of theology in Naples.

Universal Authority in Pre-modern History

Aquinas, like Augustine, was theologian more than philosopher or ethicist. Yet his impact on Western thought is due, above all, to his reception of Aristotle, the great pagan humanist. Aquinas used Aristotle’s formal logic, his distinction between the actual and potential, his scheme of causes (material, formal, eﬃcient and ﬁnal) , and his division between theoretical and practical knowledge. Both regarded intellectual contemplation as the “supreme goal of human striving” and free choice as the origin of moral action (Owens, 1993). But they belonged to utterly diﬀerent worlds. Aristotle was born, perhaps in 384 B.C., into a culture that gloried in the accomplishments of classical antiquity. Son of the physician to the king of Macedonia, he was comfortably at home in the courts of Philip and Alexander. He was the most brilliant of Plato’s students, coming to the celebrated Academy in Athens at the age of 17, when the master was turning 60. He was a totally exceptional embodiment of the best of Greek culture, who enjoyed the beneﬁts of a place in time that venerated an inquiring mind. His contributions to the history of thought were original in ﬁelds as diverse as philosophy, ethics, logic, psychology, political theory, biology, physiology, and literary criticism. After Aquinas, Aristotelianism would become the pre-eminent mode of inquiry well into the modern world until overtaken by the new thinkers of the 17th century. Later modernists would look upon Aristotelian thought as rather ﬁxed, but Aristotle himself had the most open of minds. But for Aristotle “the whole tradition of Hellenic civilization might well have perished” (Russell, 1946). “The world was there before his eyes. Its existence posed no problem ... Human happiness was attained in a complete lifetime on earth through intellectual contemplation of the mind’s highest objects, or in a secondary fashion by exercising the practical virtues that make this contemplation possible. Concern for individuals physically, mentally or economically incapable of this happiness is noticeably absent” (Owens, 1993). Aquinas, on the other hand, was conditioned by the conﬁnements imposed by feudal civilization, by the inescapable tyranny of closed minds. The possibility of improvement of human welfare could not be entertained in the absence of anything resembling the “buoyant elan” of ancient Athens. Aquinas and his contemporaries were prisoners of a culture that was as deeply pessimistic as that of ancient Hinduism. They were forced to rely on spiritual strength in working out the future of human happiness. From the monastic perspective, the only goal that really mattered was the attainment of eternal happiness after death through a life of self-denial in accordance with the teachings of Christ (Aertsen, 1993). Yet Aquinas was not entirely a zealot. On most matters of ethical signiﬁcance, he was certainly a moderate by the standards of his time, marked if not molded by the humanism of the most revered pagan philosopher of ancient Athens. He also held in respect the great Jewish philosopher of the previous century, Moses Maimonides (1135-1204), whom he recognized as a fellow traveler embarked on the same intellectual journey, working to reconcile the best minds of antiquity with the needs of their own, very diﬀerent, times (Burrell, 1993). St. Thomas Aquinas remained a critic of those who persisted along the wrong path, but surely cannot be held accountable for the perversions of Christianity visited upon the Jews and Muslims and other nonChristians in the inglorious eras that followed.

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Aquinas might also be remembered as an early academic. He was susceptible to the pride of disciplinary rigor. The 13th century is not noted for its liberation of the human spirit, but it did make one contribution of lasting value: the university. Previously, between the 6th and 12th centuries, learning in Europe was consigned to cathedral schools and monasteries. What was learned there was under the direction of the Church, but there were certain areas of knowledge beyond its reach. By the mid-medieval period it was becoming clear that there was need for a place outside the Church where young adults could be exposed to the best intellects. So the university was invented to accommodate disciplines like medicine and law as well as to free philosophy from the shackles of ideological dogma. Western medicine had been revived as a science, chieﬂy by the Arabs, building on the studies of Greek physicians such as Hippocrates (ﬂ. 400 B.C.) and Galen (c. 130c. 200 A.D.). The most famous of these new physicians was Avicenna (980-1037), a Persian child-genius who became court physician at the age of 18. His most famous work continued to be used by medical students and practitioners even up to the mid17th century. The ﬁrst medical school was established in the 11th century at Salerno in southern Italy, and its scientiﬁc approach was followed by medical schools starting up in Bologna, Montpellier, Padua and Paris. Likewise, law had begun to become available to young scholars outside the Church. Civil law was taught as an independent discipline by scholars who were reviving the study of Roman law at the end of the 11th century. One of the most conspicuous was a monk, Irnerius (c. 1055-c.1130), known also as Guarniero and Werner, who is best loved by law professors as the founder of the most famous of the world’s early law schools. The “patron” saint of formal legal education was the Countess Mathilda (10461115), born of the warlike house of Canossa in Tuscany. Her father Boniface, a typically medieval blend of vice and piety, had submitted to a ﬂagellation at the hands of the Abbot Guido of Pomposa for his admittedly numerous sins. One of his better judgments was to marry the remarkable Beatrice, who succeeded in producing an even more impressive daughter, Mathilda. On the death of Boniface, Beatrice entered into a second marriage in 1053 with Godfrey of Lorraine. In so doing she incurred the extreme displeasure of Henry IV, the Holy Roman Emperor, against whom Godfrey was in open revolt. This and subsequent events ensured that Mathilda, when she succeeded as Countess of Canossa, would gravitate to Pope Gregory VII (or Hildebrand), with whom Henry was bitterly contesting for supremacy on the continent of Europe. For some, Mathilda should be remembered for her pious resolution in turning over most of her extensive possessions to the papacy. Others credit her rather as the sponsor of the famous school of jurisprudence at Bologna, which would become the center of legal scholarship in Europe. It was preceded by a law school at Ravenna, which was attempting to fuse what was known of the old Roman law principles with the living laws and customs of the evolving feudal system of government. But Ravenna at that time was perceived by most, including Mathilda, to be a hotbed of heresy, the site of Guibert the anti-pope. As part of her assault on Ravenna, she encouraged the jurist Irnerius to collect and re-arrange the nearly forgotten code of Justinian (Duﬀ,

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1909). Motivated to revive the study of Roman law in its unadulterated form, Irnerius founded his own school in Bologna and started to attract a following of students. Like other great rulers of her time, Mathilda tried to participate personally, as often as possible, in the procedings of her law courts, but urgent aﬀairs often demanded her presence elsewhere. The next best assurance of consistency in the administration of justice was to place in her judges’ hand a text of unquestioned credentials. The revival of the Roman law tradition was eﬀected by Irnerius and Mathilda, but an initiative of this magnitude was made possible by the reformist zeal of Hildebrand, surely one of the greatest of all popes (Cowdrey, 1995). The speciﬁc cause of law reform owed even more to the erudition of the loyal and saintly Bishop Anselm II of Lucca (1033-1109). Bishop Anselm – not to be confused with the less virtuous saint of the same name, who became Archbishop of Canterbury – served as a spiritual adviser to Mathilda and, more important, proved to be one of the most inﬂuential supporters of Gregorian reforms in Rome (Cushing, 1995). From the perspective of world order, it is even more relevant that Anselm was the greatest canon lawyer of his age. The triumph of the canon law and the civil law in the late Middle Ages was by no means inevitable. Uta-Renate Blumenthal (1998) has reminded us that the Romans had “a very bad press during much of the Middle Ages”. She quotes Bernard of Clairvaux, who wrote to his pope, Eugene IV, in 1552, long after the deaths of Mathilda and Irnerius. “What shall I say about the people? They are the Roman people. I cannot express my feelings about the people of your diocene more brieﬂy or more forcefully. What has been so well known to the ages as the arrogance and the obstinacy of the Romans? They are a people unaccustomed to peace, given to tumult; people rough and intractable even today and unable to be subdued except when they no longer have the means to resist”. The revivers of Roman law were not content with the tasks of restoring the glories of the most famous legal system of classical antiquity. Soon they became known as glossators, because their method was to add glosses to the old Roman texts in light of modern laws and conventions. Their glosses became the foundations of modern civil law, ﬁrst in Italy and then in other parts of the European continent. For 400 years, down to the late 15th century, the civil law tradition was heavily inﬂuenced by the natural law theory of Christian theology and ethics. Natural law theorists treat law essentially as “the embodiment in rules and concepts of moral principles that are derived ultimately from reason and conscience” (Berman, 1994) – whether or not in conformity with God’s will. Naturalism, in one form or another, continued to predominate throughout the Middle Ages. Its chief proponent was St. Thomas Aquinas (1225-1274). It was challenged by “volunturists” like William of Ockham (c. 1280-1349), who asserted the precedence of divine and human will over reason; and by “realists” like Marsilius of Padua (c. 1275-1342), and later Niccolo Machiavelli (146-1527), who accepted the coercice nature of all law as an instrument of government. Those challenges to natural law laid the foundations of positive law theory, which treats law essentially as “a body of rules laid down (‘posited’) and enforced by the supreme lawmaking authority, the sovereign”. “Most positivists”, as Berman explains, “do not deny that law ought to serve moral ends, the ends of justice, but argue that what law is is a political instrument, a body

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of rules manifesting the policies of the legitimately constituted political authorities. Only after it is established what law is may one ask what it ought to be. Naturalists ... believe, on the other hand, that one cannot know what the law is unless one considers at the same time what it ought to be, since, they argue, it is implicit in legal norms that they have moral (including political) purposes and are to be analyzed, interpreted and applied in the light of such purposes. The naturalist will deny the validity, indeed the legality, of a rule or action of the political authority that contradicts the fundamental principles of justice”. This essentially Christian controversy would remain the battleground for Western legal theorists and educators for hundreds of years until the appearance of the school of historical jurisprudence at the end of the 16th century. In the ﬁeld of international law, these schools still have their adherents, though most practitioners, normally ﬁxed on the tasks of textual analysis, may prefer to remain apart from such an elevated level of abstraction. Islam. More is known about Muhammad ibn Abdallah (c. 570-632) than about the founder of any other religion. He was born in Mecca, a member of a minority faction of the quarrelsome Quarysh tribe. He lost his father before he was born, and his mother Amina was too sickly to look afer him. Placed in the custody of a shepherd and his wife, Muhammad was, according to legend, “despised by his rich relatives, his inheritance from his father being no more than ﬁve camels, a few sheep and an Abyssinian slave girl called Baraka” (Payne, 1959). Through early childhood he experienced numerous visitations, which upset his foster mother who returned him to Amina, but she died suddenly and left Muhammad an orphan at the age of six. Thereafter he was raised, ﬁrst, by a religious old man, and then by a kindly uncle: a beneﬁciary of benevolence. From the beginning, Payne suggests, “he was a man in search of his father”. At twenty-ﬁve, Muhammad – a handsome, vigorous and unusually magnetic young man – attracted the love and devotion of a 40-year old widow, Khadya, who had inherited considerable wealth from two previous, caravan-trader husbands. She would later bear him four daughters and two sons. He seemed destined for a comfortable family life. Fate, however, chose a diﬀerent course for this “solitary wanderer among the rocks”. In 610, at the age of 40, Muhammad experienced a truly terrifying revelation, when the angel Gabriel commanded him to his appointed role as the ﬁnal messenger of Allah, the One God. This was “no pretty naturalistic angel, but an overwhelming ubiquitous presence from which escape was impossible” (Roberts, 1992). Those who believed immediately were few in number, but they included the faithful Khadya, who was, of course, the closest witness to Muhammad’s compelling sense of destiny. As with other revelations, this experience proved to be self-conﬁrming: “the claim is accepted by some to whom it is told, and this recognition conﬁrms it in the mind of him who has made it” (Hourani, 1991). It set him on a life of prophecy, a teacher and author of the messages he kept receiving from Allah. In his earliest proclamations, composed with poetic force, Muhammad depicted the imminence of doom for those who refused to accept the One God. All would be judged, and allocated to Heaven or Hell, according to the lives they had led. The

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mercy of Allah would be shown to those who remained faithful to the duty of regular prayer, displayed benevolence to others, and practised sexual restraint. Despite persecution by the idol-worshippers of the Qurayshi community, many Meccans responded to the call for a simpler faith and a life of sacriﬁce. At ﬁrst, however, most of his supporters were from the oasis settlement of Yathrib, where two Arabian tribes had lived together for many decades along with Jewish traders who had settled there more recently. Apparently Muhammad had been consulted frequently as a mediator of disputes in Yathrib due to his reputation for integrity and fair-minded dealings. It has been suggested that the Arabians of this cross-cultural town of Medina, as Yathrib became known, felt a special need for a prophet and a holy book that would speak to the whole community (Hourani, 2001). Muhammad’s success in Medina may even have strengthened the case against him in his own home town. Finally, in 622 he was forced into emigration (hegira) to Medina, where he took up his famous reign as a new, wholly benevolent, kind of ruler until his death in 632. At that time the entire region of Arabia was growing rapidly in population and wealth as a commercially strategic zone between the Arabian and Mediterranean Seas. Other towns were growing up like Mecca, where foreigners, mostly traders, were joining Arabian communities that still believed in nature gods and demons of various sorts. Most of the newcomers were Jews and Christians, who lived under the protection of a single deity that had revealed himself to their prophets; and they had a scripture for daily guidance. Despite the messengers of God who went before him, Muhammad was convinced of his destiny as the ﬁnal prophet. “Through him, Moslems were to believe, God spoke his last message to mankind” (Roberts, 1992). In retrospect, it seems that Muhammad was responding also to a dangerously materialistic trend among the people of Arabia. Commercial aﬄuence had altered their lifestyle. The old tribal values had been overridden by a new and spiritually deadly hunger for proﬁt, if necessary at the expense of one’s brothers and sisters. Muhammad was convinced of the need to provide a new ideology through religion, one that would bind the warring communities of the previously nomadic Arabs, transcending tribal allegiances and resolving the chaos of constant warfare. Muhammad preached the iniquity of private wealth and the duty of charity to the poor. No obligatory doctrines were taught. Indeed theological speculation was dismissed as “self-indulgent guesswork about things that nobody can possibly know or prove”. Such notions or dogmas were blasphemous. But Allah was presented as lacking some of the compassion of the biblical god of the Jews and Christians. “Constantly the Koran urges Muslims to see the world as an epiphany; they must make the imaginative eﬀort to see through the fragmentary world to the full power of original being, to the transcendent reality that infused all things” (Armstrong, 1993). Such discernment calls for the full play of human intelligence. Only the best minds can be expected to interpret the will of Allah, expressed through Muhammad’s beautifully evocative images, captured in poetic, uniquely diﬃcult and virtually untranslatable, prose. Those of us outside the Arab culture might marvel that so many disbelievers have been won over by the supernatural beauty of the Koran. It is also important to know that early Islam was catholic in its benevolence. In his lifetime, Muhammad attracted followers from all levels of society, including espe-

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cially the disadvantaged: women, slaves and members of oppressed clans and ethnic minorities. The emancipation of women was particularly important to him. The Koran forbade the killing of female children, and insisted on women’s rights to divorce and just inheritance. In these matters, the Koran was entirely modern, one thousand years ahead of other religions in emphasizing the moral and spiritual equality of the sexes. On the other hand, a diversity of faiths among the people of Arabia was not to be tolerated: to put trust in lesser gods would be idolatry (shirk), an oﬀense to Allah, the greatest sin. Yet Muhammad never asked non-Arab Jews or Christians to convert to Islam: they had received “authentic revelations” of their own. Religion was an imperative imposed by regional culture. Soon after Muhammad’s death, the new religion split into two antagonistic divisions: the Sunnis and Shi’ites. The schism did not, however, prevent the spread of Islam throughout Arabia and beyond, in Northern Africa, Iberia, and Central and Southeast Asia. Indeed, Karen Armstrong (1993) suggest that the success of Islam was “as formative as the failure and humiliation of Jesus have been in Christianity, which mistrusts mundane success. Muslims regard themselves as committed to implementing a just society in accordance with God’s will”. Reﬂections. Nothing in world history is more disturbing than the destructive force of extreme religiosity. Can it be brought under reasonable constraint? In their professional capacity, lawyers are supposed to be rationalists, trained like scientists to seek out evidence in support of propositions. Confronted with religious dogma, they should be expected to trust their own powers of critical analysis. To lawyers, as much as scientists, it might be supposed, the scarcity of sceptical minds is a troublesome feature of the Age of Faith. But, whether grounded in the civil law or common law traditions, Western lawyers are also cultured to serve authority in conformity with text. Most lawyers have been reluctant, on the whole, to join the ranks of atheistic philosophers and scientists who reject the truth of propositions for which no evidence is conceivable. Many are comfortable with the notion that religious faith belongs to the innermost compartment of the human mind, immune from the normal requirements of reason and evidence. The tendency to believe in the unknowable – to accept myths in the spiritual domain that one would normally reject elsewhere – may one day become explainable in neuroscience (Harris, 2004). Meanwhile, religious fanaticism has returned to become a serious threat to world society. As Sam Harris reminds us, almost all conﬂicts that defy resolution in our present age are the result of religious hatred and intolerance: in Palestine (Jews v. Muslims), the Balkans (Orthodox Serbians v Catholic Croatians, Orthodox Serbians v. Bosnian and Albanian Muslims), Northern Ireland (Protestants v. Catholics), Kashmir (Muslims v. Hindus), Sudan (Muslims v. Christian and animists), Nigeria (Muslims v. Christians), Ethiopia and Eritrea (Muslims v. Christians), Sri Lanka (Singhalese Buddhists v. Tamil Hindus), Indonesia (Muslims v. Timorese Christians), and the Caucasus (Orthodox Russians v. Chechyan Muslims; Muslim Azerbayanis v. Catholic and Orthodox Armenians). Nothing is more dangerous in the modern

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world than the arrogance of religious fundamentalism, which demands the destruction of inﬁdels, the followers of wrongly imagined gods. If religions had been conceived more generously for the beneﬁt of all humanity, they would have earned greater respect in the eye of later humanists and international ethicists. But traditional theology has been framed around the virtue of “true belief ”. Much of the conﬂict that has disﬁgured world history since the Age of Faith is attributable to the clash of religious dogmas and values. In particular, Christianity, Judaism and Islam must share responsibility for permitting faith (“rectitude”) to achieve preeminence among human values, transcending even basic kindness and tolerance, occupying a signiﬁcance beyond reason, knowledge, and material well-being. Unencumbered with theology, secularists today might take the view that Jews and Christians, at least, have much in common. Modern ecumenicists are likely to agree. Jesus, after all, was a Jewish hero, and all the authors of the New Testament were Jewish at the core of their religious conviction and in their outlook on the world. Historians have concluded that the “medieval climate of the Western world was not favorable to the development of international law” (Nussbaum, 1954). Secular humanists would certainly argue that the dismally unprogressive record of the premodern era was due above all to the extraordinary degree of religiosity that prevailed in most cultures between 400 and 1500. Yet religious experience continues to be the principal expression of “civilization’s discontents” for most people in most societies. We cannot ignore the relationship between religion and international law. The relationship between religion and international law is elusive (Janis, 1991). At best, both might be regarded as reﬂecting a yearning to promote benevolence, “concerned with the manner in which we accept and organize the world and universe around us” (Nafziger, 1991). In the Christian West especially, there was a measure of compatibility between the purposes of law and religion as ethical systems. Throughout the feudal period, for example, the Church oﬀered asylum to fugitives from persecution, but eventually this practice was seen to be open to abuse, threatening to undermine the prosecutory function of the temporal authorities. In 1515 Louis XII of France issued an edict restricting the right of the Church to grant asylum to traitors seeking sanctuary from the threat of death or mutilation. Religious asylum in these cases was permitted only on payment of a stipend to the Crown. Twenty-four years later, Frances I went further in abrogating the immunity traditionally attached to religious asylum in any civil case, leaving the matter of asylum in criminal proceedings to the discretion of the judiciary. Nafzinger (1991) suggests that religion since the pre-modern era has come to terms with secular society and temporal authority, and now contributes to the evolution of world law as an ethical system in ﬁve ways. First, he suggests, certain religions play a creative function. Some denominations in particular – for example, the Quakers, Mennonites, and Baha’i – have played a conspicuous role in the international peace movement and the advocacy of global order. We might say they have invoked the civic benevolence and war-prevention-and-management models of international law. The United Methodist Church was one of the ﬁrst religious organizations to send observers to all sessions of the Third UN Conference on the Law of the Sea (UNCLOS III), committed to its reformist goals.

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Second, but somewhat similarly, modern religion has an aspirational function, helping to “counter the tendencies of Austinian positivism and extreme versions of legal realism to equate law with power politics ... Religious thinking incorporated into the law encourages a progressive moral development of international relations” (Nafziger, 1991). Third, religious institutions today can be seen to have undertaken a didactic role. For example, the World Council of Churches is frequently heard in support of the international law of human rights, and Pope John XXIII identiﬁed the Universal Declaration of Human Rights as a central tenet of Catholic dogma. On the other hand, the ecumenical movement is still far from bringing all major religions together on major human rights issues, such as several associated with the UN Convention on the Rights of the Child. Because theological dogmas clash, many religions are still more or less open on numerous matters of civic benevolence. Nafziger develops his argument further by suggesting that religions have a custodial function as “guardians of conscience”. Many areas of international humanitarian law represent sectors of ethical concern, where a tradition of tolerance and compassion can be distilled from selected sources of religious thought. Finally, he points out that certain religions have made themselves available in a mediational role. The most obvious example is the Vatican’s occasional contribution to the peaceful settlement of disputes. In the 1970’s Argentina and Chile, on the brink of war over the lingering Beagle Channel boundary crisis, asked the Pope to provide a mediator. The nominee, Cardinal Samore, saved these countries from what might easily have become a bloody encounter, providing the foundation for a mutually acceptable treaty settlement (Johnston, 1988). As we look at these benevolent contributions, we recognize the face of modernity. However, despite the displays of concern for virtuous rule in the writings of a few pre-modern theologians, we are left in no doubt that their eyes were turned upward. The demands of faith in the pre-modern world left little space in the human heart for the ideal of universal benevolence. Even today too many conventional believers, and perhaps most fundamentalists, “use ‘God’ to prop up their own loves and hates, which they attribute to God himself. But Jews, Christians and Muslims who punctiliously attend divine services, yet denigrate people who belong to diﬀerent ethic and ideological camps, deny one of the basic truths of their religion” (Armstrong, 1993). Faith, Power and Autonomy In the West the Age of Faith was also an era of unending struggle between the forces of spiritual and temporal authority. The Augustinian theme of two contending “cities” became one of the cardinal features of the medieval system in the Western world. Elsewhere, other pro-modern culture were experiencing a totally diﬀerent pattern of power and authority. Questions. What forms of centralized secular authority emerged in the millennium that followed the era of classical antiquity? Were all the regimes of the Dark Ages equally dark in all systems of civilization between 400 and 1500 A.D.? How

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did secular authority deal with the claims and prerogatives of the spiritual domain? Where did its “legitimacy” have its source? India. The famous Mauryan empire, founded by an earlier Chandragupta after Alexander’s withdrawal in 326 B.C., had not survived long after Asoka’s death in 252 B.C., but it had established a successful model of centralized administration, extending over a network of thriving cities and commercial towns, and also, it seems, reﬂecting a high standard of civic benevolence (Thapar, 1961). In the 2nd century B.C., after decades of repeated invasions, the sub-continent had once again been gathered up under the Kushanas, who had subdued the Shakas in the West. The Kushana Empire had prospered with the revival of India’s traditional trade with the West, secured at a great distance by the power of Rome. The ascendancy of Chandra Gupta I in 319 A.D. resulted in the third great Indian empire. Coins of that period depict him as “emperor” (maharajadhiraja) of a vast dominion stretching over most of Northern India, from the plains of the Upper Ganges westward to Bengal. But this imperial period was also quite short, lasting not much longer after the death of Kumara Gupta in 454. Yet it is remembered in India as an era of unusual stability and accomplishment. The description of Gupta rule as an imperial government has been challenged. Thapar (1966) has pointed out that centralized control was never realized under Gupta rule to the extent achieved under the Mauryas. Yet the son of Chandra Gupta I, Samudra Gupta, who succeeded his father in 335, was apparently powerful enough to extract tribute from the tribal chiefs of Central India and the Deccan (the “forest kings”), as well as the kings of Assam, Bengal, Nepal and the Punjab. It might be accurate to describe the relationship in terms of “suzerainty”, whereby the Gupta dynasty enjoyed the beneﬁts of primacy within a loose framework of independent but subordinate kingdoms. It is Chandra Gupta II (Vikramaditya), who reigned for almost forty years (375415), that the modern reader is likely to ﬁnd the most appealing. By all accounts, Vikramaditya (“Sun of Prowess”) was a mild and benevolent ruler and a patron of art and literature (Braudel, 1993). However, by the reign of his son and successor, Kumara Gupta, the empire was being hard pressed by Hun incursors from Central Asia, and Kumara’s successors were to ﬁnd it increasingly hopeless to preserve even the forms of central authority (Thapar, 1966). Indian civilization of the Gupta era “moved to very diﬀerent rhythms from those further west” (Roberts, 1992). Neither the dharma of the Brahminical tradition, nor the asceticism of many priests, nor the explicit sensualism of Hindu art and literature, had a parallel in the pre-modern Western world. Nor has the outside world developed a social order as sharply stratiﬁed as the Indian caste system. It can be debated whether the Hindu passiveness of Indian society rendered the subcontinent especially vulnerable to external inﬂuences such as the Islamic and Turkish incursions after the early 8th century. With the ﬂux of power, there was little chance for the consolidation of central authority, until the Moslems at the beginning of the 13th century established imperial rule over the entire Ganges valley, and later throughout Bengal and some way down the west coast of the subcontinent. In 1398

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the Mongols descended, reputedly with a terrifying lust for devastation, fragmenting India once again (Thapar, 1966). So the history of India during these centuries of violent political change is one of alternation between the order of imperial cental government and the disorder of warring local states. China. There was a planetary divide between the civilizations of pre-modern India and China. To be sure, Chinese society too was stratiﬁed, dominated by a sophisticated aristocracy both in the South and North. In the 4th century the strong central government that China had had under the Han dynasty probably seemed irrecoverable, but the Chinese people were about to enter a glorious age of cultural achievement. There would be eruptions of popular discontent from time to time between 400 and 1500 A.D., but the Middle Kingdom during that period was a more settled polity than any other. By the beginning of the T’ang dynasty (618-907) it seems to have been widely accepted by the Chinese that all truly civilized societies must be under one ruler. By the ﬁrst half of the 8th century, China had reached a level of artistic and intellectual distinction beyond that of any other civilization. It had become the largest, most powerful, and most advanced, nation on the planet. The accession of Li Yuan (566-526), founder of the T’ang dynasty under the name of Kau Tsu, was due, of course, to superiority in the arts of war, though mostly, it seems, they were the arts of his brilliant second son, Li Shih-min, who succeeded his father as T’ang T’ai Tsung (Latourette, 1962). The Li family had the advantage of widespread popular belief that the disasters of the past were due to the evil or incompetence of earlier rulers, who had lost the Mandate of Heaven. As taught long before by Mencius (371-289 B.C.), the legitimacy of a truly moral leader is displayed in his benevolence towards his subjects. He is responsible for their welfare. Indeed, the Mandate of Heaven, the moral justiﬁcation for the ruler’s power, exists only by virtue of winning and keeping the support of the populace. If the citizens rise up to depose him, it is clear he has lost his divine mandate. Sovereignty, as we would say today, is vested in the people. But, ironically, this version of democracy meant that the “right of rebellion” was validated only by successful insurrection (Reischauer and Fairbank, 1958). Such a rationale was dangerously available to justify any policy of severe suppression, on any evidence of discontent. Under the T’ang, the examination system began to perpetuate an educated bureaucracy of merit. Although it contributed to the creation of a ruling elite, and the further stratiﬁcation of Chinese society, the system seems to have had general support among the lower classes, perhaps because it was possible in theory – and even occasionally in practice – for a boy of humble birth to pass the chin-shih examination and become a mandarin at the highest level of authority. As Reischauer and Fairbank observe, “this dream was almost as potent a political force for the following millennium in China as the ‘log cabin’ myth in nineteenth-century American politics”. The T’ang improved and elaborated the system of local government, creating large provinces with powers over the old prefectures. Agriculture was fostered, and the system of public granaries was re-established. All oﬃcials charged with maintaining public morality and order were appointed by the emperor, ensuring the centralization of power and government (Latourette, 1962). An empire-wide system of post stations

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on the roads and waterways provided hostels, horses and boats for traders, and enabled the imperial authorities to maintain their system of state supervision. The legal system was codiﬁed further and made more humane, although still reserved chieﬂy for administrative and crime-control purposes. In practice, however, China was governed by rulers, not ruled by law. Magistrates were expected to exercise discretion in the application of the code by resort to their personal ethical judgment, imbued with the Confucian sense of social propriety. As the centuries rolled on, psychocultural changes occurred that would make the Chinese empire susceptible once again to the incursions of barbarians. Two shifts in particular have been suggested. “One change was that the open, cosmopolitan spirit of the early T’ang gradually faded into a narrower, more exclusively China-centered and introspective attitude. The other was the decline of the martial spirit and the development of pronounced paciﬁstic traits. Up through the early T’ang, the Chinese dynasties had all been militaristic, in the old Legalist tradition, but by Sung times the civilian point of view had become overwhelmingly predominant, and there was a growing contempt for the military profession” (Reischauer and Fairbank, 1958). Despite this weakening of ﬁber, the forms of Chinese power and authority remained extraordinarily strong. The Mongols, who eventually overran China at the end of the 13th century, discovered, like the Manchus in the late 17th, that they could govern this extraordinary empire only by absorbing its institutions and becoming themselves Chinese. Eastern and Central Europe and the Middle East. To the extent we can judge such matters within the framework of early Indian and Chinese history, it appears that civic, and indeed other, standards rose and fell with political empire. Even allowing for the self-justiﬁcatory nature of imperial records, we can see that the prospects for order, stability, prosperity and humane government tended to improve with the concentration of power. In the case of Europe and the Middle East, the same generalization seems to hold for the early centuries of pre-modern history. After the demise of Roman power and authority in the 5th century, the course of events in Europe becomes extremely diﬃcult to follow. For beacons of civic enlightenment we look to the East. Yet with the ascendancy of Emperor Justinian (483-565), central Europe seemed, once again, to have a strong leader with the ambition and competence to re-establish a Roman-style system of central authority. During his long reign (527-565) much of the old Roman Empire was re-assembled. His great general Belisarius (c. 505-565) recovered Northern Africa and evicted the Ostrogoths from the city of Rome (Norwich, 1998). However, most of Justinian’s conquests proved ephemeral. Almost all of the territories gained were lost again. Despite his dynastic ambitions, Justinian failed to reunite the east and west of Europe. Justinian’s principal achievement was his codiﬁcation of Roman law. Like the later James I of England, Justinian was conﬁdent enough in his personal knowledge of Christian theology to assert his own temporal authority in church aﬀairs, at least through symbolic acts like the closing of the famous Academy in Athens as a dangerous shrine for unbelievers (Roberts, 1992).

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Except in juridical circles, where Justinian’s name is still exalted as the commissioner of the codiﬁcations by Tribonian and his colleagues, the famous emperor is somewhat diminished in the eyes of contemporary historians. Although he possessed an extraordinary capacity for work and imperial undertakings, his willpower quailed in the presence of Theodora, his imperious consort. He was, it has been written, “the last truly Roman emperor to occupy the throne of Byzantium. It was not simply that ... he spoke barbarous Greek all his life; it was that his mind was cast in a Latin mold, and that he thought in terms of the old Roman Empire. He never understood that that Empire was by now an anachronism; the days when one man could stand in undisputed universal authority” (Norwich, 1992). Yet, despite these reservations about Justinian, it was surely his example of centralized power and authority that provided the political model for the Byzantine civilization that was to ﬂourish in and around the city of Constantinople. In the teeth of numerous challenges and concessions, his successors somehow managed to hold the Byzantine Empire together until its undoing in the mid-15th century. The empire had lasted over 1100 years, coinciding almost precisely with Western historians’ conception of the pre-modern world. Throughout that long period, the absolute monarchical form of Byzantine government remained unchanged. Autocracy seems to have suited the ethos of Central Europe and Asia Minor. No eﬀort was made to modify the system of rule. No one seems to have suggested the merit of constitutional authority. Revolts were directed against particular tyrants and speciﬁc policies. One thinks of the analogy with the Chinese people’s acquiescence in the absolute authority of the T’ang and Sung emperors, subject only to the right of morally justiﬁed rebellion. As in China, the autonomy of the Byzantine state was accepted as a natural goal of civilized society, but it was also rooted in the Roman tradition of reverence for law as well as order. While most of Western Europe was still struggling to emerge from the shadows, the Byzantine Empire was developing a system of legislation. Further to the east, a great rival empire was building on the foundation of Islam. By around 750 A.D. Islam had attained its greatest geographical extent, reaching the gates of Constantinople and almost encircling the heartland of Europe. Though blocked thereafter from further expansion, Islam was to enter its golden age from that point to the end of the 12th century, or, as suggested by Braudel (1993), to the death of Averroes (1126-1198), the last of the great Muslim philosophers, at Marrakesh. The intellectual and artistic supremacy of Islamic civilization was sustained throughout the non-Chinese world between the 8th and 12th centuries. It was made possible by a succession of enlightened and powerful caliphs, whose minds were open to the rediscovery of Greek science and philosophy, their conscience untroubled by the pagan roots of the new learning. There was no pax Romana, but stability at the borders was suﬃcient to permit the growth of a free-ﬂowing system of trade, an international economy based on money rather than barter. Like the later Italian Renaissance, this was a period of creativity, when material wealth and intellectual vigor supported each other: “the product of small, brilliant circles of exceptional people, who drew deeply on the ancient civilization which they revered and revived, and

Universal Authority in Pre-modern History

who lived centuries ahead of their contemporaries ... The barbarians were the Seljuk Turks, the Berbers, the Saharan nomads or the Western Crusaders” (Hourani, 1991). With outposts as diﬀerent as Persia, India, Indonesia, Spain and Black Africa, the Arab (or Moorish) Empire strove consciously for unity and uniformity, inspired by the vision of Islamic cohesion. Universal truth was advanced above all in the form of science and mathematics. Eﬀorts were also made to plan a uniﬁed system of government. Almost everywhere throughout the conquered territories, Arabic had become the language of public administration by the end of the 8th century, as the indigenous elites were obliged to submit to arabization in order to maintain their traditional control of local government (Roberts, 1992). Islam, like Christianity, sharpened the old controversies over the competing claims of spiritual and temporal authority. The Koran, like the Christian Bible, grew gradually out of collected stories based on remembered words of the prophet. In the case of Islam, particular reverence was due to text believed to be the directly revealed word of God. The preaching of Muhammad had created a spiritual community committed to a life-mode in strict conformity with the norms of the Koran. But who should exercise authority in that community? This pivotal question dominated discourse throughout the golden era of pre-modern Islam. The need for a close correspondence between the two orders of autonomy was understood from the beginning of the religion. The closest of Muhammad’s friends from his youth was Abu Bakr (c. 573-634), who became a wealthy merchant but then seems to have repudiated the accumulation of riches. He became Muhammad’s most devoted disciple and champion along with the formidable giant Umar ibn al-Khattab (Payne, 1959). Together they and their associates had formed what was essentially the ﬁrst Islamic state. A man of humility, Abu Bakr seems to have been genuinely reluctant to accept the role of successor (kalifa) to Muhammad as the king of the realm. But he was persuaded, and became the ﬁrst of four caliphs to rule from Medina. Abu Bakr’s pledge upon election was that he derived his authority from the people and would expect removal from oﬃce if he disobeyed the laws of God. Despite his personal benevolence, he became engaged immediately in struggles for territorial expansion, which were continued by his successor Omar I, who captured Jerusalem in 638. By the end of the period of the four Arabian caliphs, the Islamic Empire founded by Muhammad had expanded eastward as far as the Tigris and Euphrates, northward beyond the lands of Syria, southward to Alexandria and westward as far as Carthage. The last of the Arabian caliphs was Ali ibn Abi Talib (c. 600-651), Abu Bakr’s son, who was considered by many to be the rightful successor because of his closeness to Muhammad. Uthman, the third caliph, was accused as a usurper and assassinated. The conspirators convinced Ali that he alone was in the direct line of apostolic succession, though he seems to have kept himself apart from the conspiracy. It is believed that Ali too, like his father, was reluctant to accept the caliphate, but did so in order to save the empire, whose building was seen to be necessary to propagate the will of Allah. His ﬁve-year reign was troublesome. At the time of his death, at the hands of a murderer in the Persian town of Alal-Kufah, Ali’s enemy Muawiya had become

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the ruler of Syria and Egypt, and the ﬁrst schism in the Muslim world had become a permanent divide. In death, Ali became immortalized as a martyr and a saint. Among Shi-ites, he has attained a place even higher than Muhammad. In Payne’s words, the Persians especially “demanded in their religious heroes the blaze of glory, a divine radiance; and in the etherealized ﬁgure of the martyred Ali they found their savior”. The line of the ﬁrst four Arabian caliphs was followed by two other lines of caliphates, based ﬁrst in Damascus and then in Baghdad. Since these successions the Muslim world has been fractured over the question of legitimacy. Should the acquisition of temporal authority be open to all Muslims, or only to the descendants of Muhammad’s companions, or only to the prophet’s family? Where were the limits of the caliph’s authority? If he acted unjustly, contrary to the will of the people, should he be deposed? For those who would be known as the Sunni, it became important to accept all four of the ﬁrst caliphs as legitimate and virtuous rulers. Although many of their successors in Damascus and Baghdad were less than just, it was necessary for Muslim peace and unity to accept them also as legitimate, so long as they appeared to have lived in accordance with the Koran. The Sunni have regarded the caliph neither as a prophet nor an infallible interpreter of the faith, but as a temporal ruler responsible for the maintenance of peace and justice in the community. He is required merely to be possessed of adequate earthy virtues and a knowledge of religious law. It was also felt that the ruler should be descended from the Qurayh tribe, to which Muhammad had belonged, albeit in an uncomfortable way. The Shi-ites, on the other hand, have not accepted the claims of the ﬁrst three Arabian caliphs. Ali is recognized as the sole legitimate successor of Muhammad, as imam. On other matters, the Shi-ites have been divided among themselves. This diversity, and the gulf between the Sunni and Shi-ite viewpoints, has carried varying implications for the Islamic conception of temporal authority. Some have wished to live directly under religious law, unwilling to concede to the imam or any other ruler the power to rule unjustly. Others have emphasized the duty of temporal authority to uphold the law and maintain public order (Hourani, 1991). The eventual collapse of the Islamic Empire in the 12th century has been ascribed to many causes, internal and external. It emerged only half-victorious from the Crusades, and it had lost control of the Mediterranean. In Asia it suﬀered permanent damage from the barbarous onslaught of the Mongols. Above all, however, the decline of the Islamic world resulted from the apparently inexorable re-emergence of Western European civilization (Braudel, 1993). The Christian West. That event, which has had such an enormous impact on the rest of the world ever since, is commonly traced to the coronation of Charlemagne (c. 742-814) as Holy Roman Emperor on Christmas Day in the year 800. Elder son of Pepin the Short (d. 768), Charles inherited much of what is now France and most of Germany and the Netherlands, the designated portion of his father’s vast domain. On the death of his somewhat estranged brother Carloman, Charles, King of the Franks, annexed the other half of the family empire. From his grandfather, Charles Martel (c.

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688-741), he also inherited the diﬃcult role of coalition partner with the Papacy. It is never easy to ﬁnd the man behind the legend, particularly in this case where legendary status was a valuable political asset, but there is no doubting the success of his great imperial design. By the end of the aggrandizement, the realm of Charlemagne was the biggest the West had seen since the Roman Empire. The inﬂated title bestowed on Charlemagne by Pope Leo III, suggesting he had acquired the mandate of the Christian heaven, could be construed as merely an expression of papal gratitude for Leo’s restoration to the Holy See by Charlemagne’s militia. But it may also have been intended to demonstrate to Christians steeped in Augustinian theology that, as the Emperor’s temporal authority was derived from God, it was thus dependent on God’s own representative on earth. Certainly the spaciousness of the title oﬀended the emperor of Byzantium to the east, who had for centuries enjoyed a special cachet at the interface between temporal and spiritual authority in the Christian world. The closeness of Charlemagne’s relationship with the Church in Rome was quite unique. Protecting the faith from pagans was his personal responsibility. In most matters his power was so great that the Church had no choice but to bend to his will. He pronounced upon questions of Christian dogma with the assurance of Justinian. In part, he ruled through the bishops, but he was a towering ﬁgure also in the secular aﬀairs of state administration. From his impressive court at Aachen he introduced signiﬁcant reforms in sectors of public administration such as weights and measures and currency. These reforms were crucial to preserving order and promoting fairness among the merchants, who represented the principal counterweight to the landed nobility in the new politics of Europe. None of Charlemagne’s successors matched the ability of the founder of their line, or his reputation for civic benevolence and patronage of the arts. Yet the concept, if not the reality, of the Holy Roman Empire lent some credibility to the Roman ideal of a universal and eternal authority based on ethical principles. Under weaker emperors it was frequently the pope of the day who manipulated the emperor, out of imperial need for protection from rivals and opponents. Pope and emperor continued to be the key players in the geopolitics of Europe and beyond, each motivated by an interest in maintaining or adjusting the balance of power between the domains of spiritual and temporal authority and the need for political autonomy in their own domain. The famous medieval struggles for primacy between church and state lasted for centuries, coinciding with deep and long-lasting divisions over the need for ecclesiastical reform, especially between 1000 and 1250. The central issue was that of lay control of the appointment of church personnel. The clergy of that age were the only literate men, and the lay princes needed them as administrators. The church also controlled enormous land resources. No ambitious monarch could allow anyone but himself to choose the prelates upon whom he depended so heavily (Painter, 1954). In the 12th century Peter Abelard (1079-1142), the powerful theologian and rationalistic philosopher, railed against the venality of the clergy, and argued for radical ecclesiastical reform that would involve divestment of all church possessions not necessary for the maintenance of spiritual services. Some historians believe that the course of Western civilisation might have changed if the papacy had adopted this

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view, strengthening the secular authority of the Empire as a centralized power in Europe and damping down the sovereign pretensions of ambitious kings and princes. But the elevation in 1073 of Hildebrand as Pope Gregory VII (c. 1025-1085) introduced a force of nature into the politics of the Holy See. Even before his election, Hildebrand had played a decisive role in the transfer of papal appointment from the Roman lay nobility to the College of Cardinals. He was possessed of the conviction that the goal of an independent Catholic Church took precedence over all other matters. He demanded total freedom from lay interference. His extraordinary energies were devoted throughout his reign to the ideal of a universal spiritual institution standing apart from the state. This struggle set up the most famous controversy of the Middle Ages between the advocates of spiritual and secular autonomy: the Investiture Controversy. The core of the debate was the question of lay participation in clerical appointments and promotions, especially of bishops. It seems unnecessary to follow the arguments exchanged in debate, or the course of the famous face-down between Gregory VII and the Emperor Henry IV. The issue ran on, outlasting both. The power of the Pope within the Church grew on Gregorian foundations. Papal pretensions to monarchical authority reached a new height in the reign of Pope Innocent III, “limited by little but the inadequacies of the bureaucratic machine” through which the pope had to operate (Roberts, 1992). From a world order perspective, the importance of the Investiture Controversy lies in the fact that it was to the papacy’s political advantage to support the cause of national independence against the universal claims of the Emperor (Mattingly, 1955). In the maxim that each ruler should be “master of his own house” later lawyers would ﬁnd the nucleus of the principle of state sovereignty. The diﬃcult compromise that emerged between a universalist church and independent nation-states created the statist framework of modern international law. The duality of spiritual and temporal authority, famously expounded by St. Augustine, continued to be a dilemma of critical proportions among the scholars of the late Middle Ages. It was diﬃcult to avoid taking sides in the intellectual warfare between the temporalists and papalists. Posterity has the advantage of knowing the outcome, but it may be worth pausing to note the views of two of the most prominent warriors in the battle of ideologies, who were contemporaries. One, a skeptic, is best known as a brilliant philosopher, the other, a dogmatist, as a great jurist, but they were both sophisticated commentators on the politics of 14th century Europe. William Ockham (c. 1280-1349), a Franciscan, was a man of exceptional intelligence and erudition, a seminal contributor to logic, metaphysics, and psychology as well as theology. He has been characterized as the medieval “destroyer of the high scholastic synthesis of faith and reason” and a relentless opponent of the popes at Avignon, but he was certainly not an anti-papal zealot. The political unrest of his time is attributable to two irreconcilable concepts of law and government. On the papalist side, political power and authority were seen as “descending”, ultimately from God but more immediately from his representative on earth, the pope. On the temporalist side, political authority “ascended” from the community, where power ultimately resided. Most scholars on both sides were inclined to accept the logic of ultimate

Universal Authority in Pre-modern History

governmental unity: that no man can serve two masters. Compromise between the two extremes was elusive. Ockham’s initial response was to reject the “descending” thesis of the papalists, but he had diﬃculty in accepting the alternative on oﬀer. To the dismay of later progressivists looking back, he could not come to terms with a theory of government based on the continuing consent of the governed. More perhaps than any of his contemporaries, Ockham realized the danger of concentrating all power in one place. Indeed it can be argued that he came close to a secular concept of world empire based on natural law: a form of world authority that transcended Christian and other religious claims to moral supremacy . Signiﬁcantly, he praised the pagan vision of civic benevolence espoused by Julian the Apostate. Ockham’s ambivalence about the status of temporal authority has been explained by reference to his assessment of secular government, which he regarded as limited to the function of preventing or punishing injustice. Since governments were to be assessed primarily for their instrumental value in promoting ends beyond themselves, and not for their embodiment of religious values, diﬀerent regimes may be appropriate in diﬀerent circumstances (McGrade, 1974). Today we might wish to label Ockham as a relativist. Bartolus of Sassoferrato (1314-c. 1357), one of the great jurists of the pre-modern era, was less unsure and less subtle. At an early age, perhaps as young as thirteen, he went to Perugia to study law under Cinus da Pistoia, who was also a poet, and a friend of Dante and master of Petrarch. In 1334, not yet twenty, he completed requirements for the doctoral degree in law at Bologna, the most illustrious center of juridical studies. After several years of academic duties at Pisa, Bartolus returned to Perugia. By the time of his early death, he had earned renown as a jurist and the gratitude of Emperor Charles IV for his diplomatic services on behalf of Perugia (Woolf, 1913). Not least, he was famed as a teacher throughout Europe, attracting a generation of students including Baldus of the Ubaldi (1327-1406). Despite the shortness of his life, Bartolus became the deﬁnitive medieval authority on Roman law in the eyes of the rising Italian law schools at Pisa, Padua, Perugia and Bologna, and later throughout the continent (Rattigan, 1914). Bartolus was reluctant to become involved in the politics of his day, and yet he could be considered something of a political theorist. Like many of his era, such as Ockham, he struggled with the anomalous dualism of St. Augustine and the hardline theology of St. Thomas Aquinas. From his juridical perspective, the emperor was “lord of the world” (dominus totius mundi or rex universalis), though not the proprietor of all things nor the recipient of universal obedience. All subjects owed him their loyalty, because he was appointed by God. To dispute his authority was heresy. However, Bartolus did not make clear the scope of the emperor’s universe, nor even whether it included the European territories immediately to the east of western Christendom. It is apparent, at least, that Bartolus was prepared to accept his patron as “lord of the Roman people”, although “it could not be denied that he was a German, seldom in Italy and powerless in Rome itself ”.

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Central Government, Law and Morality. Most of us associate the Dark and Middle Ages with “totalitarian” government. Pre-modern history oﬀers numerous examples of the centralization of power, under a regime possessing invincible agencies of coercion. Karl Wittfogel (1953) has argued famously that in the East the acquisition of total power often could be attributed to the control of water supplies in “hydraulic societies”. The advantage of complete control at the center of a political system did, unquestionably, empower the governing elite to bring about a high degree of public order, as it still does in certain systems of authoritarian rule. However, the phenomenon of stable government in the Middle Ages owes less to the malevolence of despots than to the development of bureaucratic staﬀs and procedures. Throughout classical antiquity, rulers of large realms had learned that it lay to their advantage to train the most intelligent young men in the arts of public administration. In ancient China especially, it was discovered that the dangers of despotism always present in a system of hereditary rule could be oﬀset by developing an elite of public oﬃcials who would be relatively independent of the political leadership. Confucius and his followers had been particularly adamant that the administrators had to be held accountable by the highest possible standards of both public and private morality. It is doubtful that any other occupation has been required to attain a comparable lord of personal integrity. By the time of the Han dynasty (202 B.C.-22 A.D.) the Chinese bureaucracy came surprisingly close to the standard of probity demanded by the Confucianists, at a time when a huge empire required the support of an impressively eﬀective civil service. Through succeeding dynasties the Chinese continued to lead the world in the sophistication of its government service. The best example of Western bureaucratic virtuosity in classical antiquity had been, of course, that of the Roman Empire. By the time of the fall of Rome early in the 5th century A.D., the Roman skills in public administration had become essential to the functioning of the eastern wing of the great empire based in Byzantium (later re-named Constantinople). The survival of the Byzantine Empire for over a thousand years thereafter is one of the wonders of world history. It cannot be explained by cultural identity, or national sentiment, or economic virtuosity. It is tempting to give most of the credit to the Roman tradition of organizational and legal eﬃciency as well as to its highly competent military service, which was, of course, also built on Roman foundations. The Byzantine bureaucratic system evolved through successful adaptation. Separating the military and civil services reduced the risk of overthrow of the central government. The tasks of civil administration throughout the realm were divided among specialized divisions at diﬀerent levels (prefectures, dioceses, provinces, and districts), ensuring that no oﬃcial could accumulate inordinate power outside the center of the system. Senior and subordinate oﬃce-holders were made jointly responsible for good government to defeat the risk that blame for failure, or praise for success, would be unfairly allocated within the system. Merit was made discoverable (Gladden, 1972). The Holy Roman Empire that grew up in Central Europe was also a durable polity, a prominent feature of the medieval and post-medieval history of the West. Yet its survival, in a period that would witness the emergence of powerful and increasingly

Universal Authority in Pre-modern History

autonomous nation-states, owed little to the existence of an eﬀective and sophisticated bureaucracy at the center, as in the case of the Byzantine Empire to the east. Unlike the latter, the Holy Roman Empire survived as an idea rather than as an operational reality; but it was, nonetheless, an idea of unity. As a political reality, the Holy Roman Empire began to decline in the late Middle Ages, until it eventually served little more than to give the appearance of unity to a loose federation of German princes, a “feckless political aggregate behind an intricate array of laws and regulations (Gagliardo, 1980). Scholars have always been at odds with one another over its political signiﬁcance. The orthodox view is that the coronation of Charlemagne in 800 marked the beginning of the Empire. This theory of continuity has been disputed by many modern historians, who emphasize the much more modern origin of the terminology, perhaps as recently as 1254 (Barraclough, 1950). Arguably the pre-modern history of Europe was a period of many empires, none of them Roman or holy. By this view, it was an era characterised by discontinuity. The opposite image of continuity associated with the Holy Roman Empire has been explained as a myth of German manufacture traceable no further back than the 12th century at most: the reign of Emperor Frederick I (1123-1190). It was probably never as strong as it seemed. No one today is likely to accept the characterisation of that power structure as universal in its aspirations, as “an institution divine and necessary, having its foundations in the very nature and order of things” (Roberts, 1997). One of the many reversals of European civilization after the decline of the Roman Empire was the failure of legal development. In the 6th century, as we have seen, the Emperor Justinian commissioned Tribonian and his associates to organize the codiﬁcation of Roman law, both old and new. Strictly speaking, this work, which absorbed the energies of several groups of jurists over seven years, resulted not in a code so much as a consolidation. It was beyond the capacity of these jurists to reduce and distill the huge mass of law that had accumulated for a thousand years into a succinct, scientiﬁcally ordered essence. What they did contribute, mostly in the form of digests, was a re-arrangement of legal texts that included an eﬀort to harmonize various extracts that seemed to be in need of reconciliation. The corpus juris of Justinian, supplemented by various ordinances of late emperors, continued to serve as a principal legal text of the “Roman world”. During the following centuries of political fragmentation and re-structuring of Western and Central Europe, both the substance and the procedure of law varied enormously throughout the region. In many places, formal civil law was a remote presence at best, invoked only occasionally by one landowner against another. Moreover, public order was preserved, if at all, by the application of force rather than enactments of criminal law. But in the better organized jurisdictions, the local customs were mixed in with whatever remnants of the great Roman legal system had survived and become incorporated as “living law” or “people’s law”. With the evolution of feudalism, which originated in the early Carolingian period of the Frankish kingdom, a social system of legal rights began to appear. As the feudal system matured, the lord was recognized as contractually bound to protect and provide for his vassal, and to do him justice in court if necessary.

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However, the legal infrastructure of feudalism varied considerably from territory to territory. Gradually through the Middle Ages, the concept of national autonomy crystallized as the paradigm of human organization. By the late Middle Ages, the localism inherent in European feudal society was yielding to new streams of national consciousness and a new and aggressive pride in national variation (Tipton, 1972). The age of distinct national legal systems had arrived. The vision of universal law held out by the most cosmopolitan Roman jurists had dimmed. As suggested earlier, the age of legal development was born of the reformist ideas of Pope Gregory VII, who reigned from 1073-1085 (Cowdrey, 1998). Most law before then in the Christian West had consisted of an oral tradition, but the “rediscovery”of Justinian’s Digest provided a solid foundation just as the commercial revolution of the 11th century created the need for a formal law of contract and a reliable credit system (Landau, 2004). Not least, the development of formal written law was encouraged by secular rulers, who saw the advantage of grounding their authority, too, in ﬁxed and quasi-sacred text. At the same time that the civil law was reviving, another form of legal system was evolving on its own parallel course. By the 11th century, as we have seen, the canon law had become highly developed through jurists such as Bishop Anselm. Secularists saw it, of course, as a challenge to the authority of the king’s courts (Blumenthal, 1998; Cushing, 1998), but in the minds of many Christians throughout Europe, the papacy still represented “a universal institution belonging to the divine order rather than to the imperfect world of men” (Barber, 1984). However, the universality claimed for the Catholic Church had to be developed into an internal, institutional reality through ten centuries of doctrinal expansion. One of the principal instruments of “uniﬁcation” was this formal system of the canon law. Although the canon law was chieﬂy designed for the governance of those in holy orders, concerned with matters of church constitution including internal discipline, it also contained enactments that could be compared with counterpart prescriptions in the civil law, especially in spousal and family relations. Centralization of the canon law system was accelerated with the establishment of a papal court by Urban II (c. 1042-1099), the same pontiﬀ who initiated the ﬁrst Crusade in 1095. All members of the Catholic clergy, regardless of national temporal jurisdiction, were held exempt from secular law, liable only in a court of canon law. Substantively, the system became systemic with the treatise of Gratian (ﬂ. c. 1140), his Decretum published between 1139 and 1150. Though short of the status of an oﬃcially binding legal code, many of the texts incorporated into it were regarded as legal authority by the canonists. As Nussbum (1954) has observed, canon law was neither “national” nor “international” in any modern sense, but yet possessed a “transnational” quality by reason of its intended applicability to all Christians, not only in matters spiritual, moral and ecclesiastical, but also indirectly in spheres of behavior previously considered subject exclusively to secular law and justice. The prospect of an international system of secular law could not have been entertained in feudal times. Yet outside both state and church, another model of moral enlightenment did appear: the ethic of chivalry. Celebrated in literature and song, the cult of chivalry among the militaristic elite could be regarded as a class-based system

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of morality that transcended both local and national boundaries. It took root in the 14th century, one of the few pleasing features of an otherwise barren century (Tuchman, 1978). It has been described as a “code intended to fuse the religious and martial spirits and somehow bring the ﬁghting man into accord with Christian theory”. Since the knight was not normally a man of conspicuous piety, “a moral code was needed that would allow the Church to tolerate the warriors in good conscience and the warriors to pursue their own values in spiritual comfort”. Although promoted by the Benedictine monks, the code of chivalry developed its own ethical principles of behavior outside the Church. Courage, honor, and loyalty were the most highly admired virtues, but the knight was also expected to display the softer qualities of generosity, hospitality, magnanimity, compassion, and, of course, gallantry in romantic love. Loyalty was especially esteemed at a time when the pledge between lord and vassal was the glue that held the feudal social order together, rather than formal law or government. Chivalry was, in Tuchman’s words, “a universal order of all Christian knights, a transnational class moved by a single ideal, much as Marxism later regarded all workers of the world. It was a military guild in which all knights were theoretically brothers, although Froissart excepted the Germans and Spaniards, who, he said, were too uncultivated to understand chivalry”. Reﬂections. We can see that the major systems of civilization had highly dissimilar experiences in the struggle for power and authority during the pre-modern era. In the early 15th century, each knew of the existence of the others through the tales of traders. The great Western navigators had not yet arrived in world history. The early Chinese explorers had only a marginal existence in the archives of the Middle Kingdom, and they were soon to be ousted from there. The political histories of the major civilizations had their own internal dynamic. They had no inﬂuence on one another. Their intellectuals engaged in generalizations about human nature in various ways, negatively or positively, as if they grasped the reality of the human condition. In truth, even their wisest and most knowledgeable knew almost nothing of the larger world, its variations and potentialities. Despite the occasional use of universalist terminology, they had no sense of the future reality of a global community. The fatalism and other-worldliness of Hindu society may have ensured a low level of resistance to barbarian invaders. Between 400 and 1500 A.D., India was a beach that had to endure recurrent waves from the mysterious spaces beyond, a receptacle for the ﬂotsam brought in by the violent energies of an uncaring universe. Consolation or release had to be sought in the imagined world of spirits, not in the power or benevolence of human institutions. Most Chinese also – the peasants in the ﬁeld – were victims of hardship on a scale we can scarcely imagine. But the ideal of ethical improvement promoted by Confucius, Mencius and other sages, became an institutional reality through a cultural continuity unattainable in Europe, the Middle East, and India. Despite the frequency of uprisings and the diversity of ideals in Chinese history, it is the pattern of compliance with the prescribed modes of behavior that compels our attention. This pattern had become so deeply ingrained in the Chinese culture by the end of the Sung dynasty that it proved impermeable when China was overrun by outsiders thereafter. It

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remains to be seen in the 21st century whether the system of power and authority in China will be fully compatible with the “world system” outside. The pre-modern history of Europe and the Middle East seems far more complicated than that of India or China. Religiosity and racism became barriers to progress toward a common humanity within both of these neighboring regions, and barriers to a genuine ethic of cooperation between them. The establishment of Latin, ﬁrst as the conqueror’s language and then as the lingua franca of the Christian Church, might eventually have helped to pave the way to a common system of communication and understanding within the region, as the common written language did to bind the Chinese people, or at least its literate elite. However, the emergence of Islam in opposition to Christianity in the Middle East and beyond raised the status of Arabic as a world language that had to be protected at all costs for reasons of religious survival. The rise of the modern nation state in Europe would mount a challenge to Latin, ﬁrst in favor of French, and then English, as the all-important “international language”. By then it would have seemed entirely unlikely that Europe, the site of violently hostile enemy states, could one day come together, as a matter of political choice, to relegate the goal of national state autonomy, and lead the world in the commitment to international integration. Crusading Faith, Conquest and Chivalry In most cultures, as we have seen, warfare was the normal, ever-present reality of life throughout primitive and classical antiquity. The only extended period of relative peace and stability was the famous pax Romana. This was a peace that granted an unaccustomed security to traders and other travelers over a vast domain. It was also a peace that depended on an unparalleled military peace-keeping force available to the emperor. The famous Roman peace had nothing to do with paciﬁst sentiment, and it surely owed little, if anything, to any other kind of benevolence. Sadly, the pre-modern era of world history did not break the pattern of human bellicosity. Whichever political landscape we turn to, we see a similar picture of armies on the march. Often devastation was sought for its own sake, as much as for the booty that fell to the victor. The thrill of warfare was so conspicuous in the pre-modern way of life that we may see it today as the principal impediment to the advancement of civilization. Questions. Is there, then, nothing but death and destruction to be found in the course of warfare in history? Can the modern reader discover any consolation in the doctrines of just and holy war? Is there any pre-modern predecessor of international humanitarian law? Could it be found to have its roots in the medieval tradition of chivalry? Conquest. If we look at world history as a succession of rising and falling civilizations, we see huge disparities in the so-called pattern of conquest. Many historians and humanists have felt it suﬃcient to ﬁnd, and then deplore, the causes of war. The history of war can be shown to be the story of greed, hatred, vengeance, and political

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ambition. But conquest, as the normal outcome of large-scale warfare, has had widely varying eﬀects on civilizations (Sowell, 2001). When the conquering force is wholly barbaric, glorying in destruction, and the conquered people is a more advanced civilization, the result can be catastrophic. By general assent, the most disastrous retrogressions in world history followed the decline of the Roman Empire, when it was overrun by the Goths. Arguably, Western civilization was set back a thousand years. The Huns and other pre-modern barbarian warrior peoples share the shame of having pursued a career of pillaging without producing any known beneﬁt to humanity. On the other hand, numerous conquests have imposed a higher order of civilization on the vanquished, sometimes much higher as in the case of ancient Greek and Roman warfare around the Mediterranean. In the pre-modern era, superior civilizations – Chinese, Islamic, Norman, Byzantine and German – have resulted from conquest over less civilized peoples beyond their borders. In all of these cases, the longterm beneﬁts included substantial and permanent gains in government, education, law, arts and science, transnational trade, and transportation. As Sowell observes, conquest, perhaps even more than migration, has contributed to the spread of “human capital” in the form of knowledge, technologies, and capabilities. It is not uncommon in world history to see peoples who have ﬁrst suﬀered and then beneﬁted, across generations, as a result of conquest. Even where conquest eventually proved beneﬁcial to the descendants of the conquered, it seems unlikely that the will to conquer was accompanied by any generous motivation. Conquest often was simply a way of life, unsupported by any kind of law or morality, though sometimes excused as an act of revenge. In the Age of Faith, however, a more sinister excuse for war and conquest came to hand: worship of the wrong gods. To punish the inﬁdel served as the ultimate justiﬁcation for killing, torture and dispossession. The political right of conquest became perverted into a religious obligation: a duty to one’s own, one-and-only, god. Just War and Holy War. In resort to war, the early Romans made an eﬀort to convert excuse into doctrine. Religion was the principal vehicle for determining the justness of their cause. To placate their demanding gods, the war-makers of early Rome felt obliged to justify the use of force against other nations. Eventually just war became a slippery legal concept. Republican jurists became experts in distinguishing cases on the facts to meet the political need for patriotic support in the streets of Rome. Lawyers as sophisticated as Cicero recognized the religious and ethical dimensions of the state’s political decision to go to war. The idea that there was an ethical need to justify war, beyond political and economic advantage, waned during the Roman Empire, and it cannot be said to have caught on elsewhere. But in the Christian theology of the 14th century the concept of a just war revived, and began to assume the dignity of doctrine. For Augustine, the vision of earthly peace and order could not be attained without a love for humanity, for the highest general good (bonum summum et commune), as well as the transcending love of God. War had to be justiﬁed by the goal of peace, but the ultimate value was justice. Both peace and war could be unjust, if they did not serve the ends of

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social justice. The famed pax Romana, in Augustine’s eyes, had been a false peace, because it was founded on the rule of force, not – as we might say – on a policy of civic benevolence. Augustine’s approach to war derived from his theory of the “divided will”. History, he insisted, reveals the commingling of two conﬂicting sentiments: “fratricidal” and “brotherly” love. (War is a male phenomenon). “There is no heart, no people, and no public policy so redeemed or so contrary to nature as to be without both. Communities are built over fratricidal love by men with divided hearts” (Ramsay, 1992). So the Augustinian origins of the medieval just war tradition reveal doubt about human capacity to maintain a precise distinction between just and unjust wars, and to summon up the will to act in conformity with it. Yet the eﬀort to distinguish must be made. Medieval doctrine would have to follow the logic of compromise with the early Christian paciﬁst doctrine against participation in war, which is the ethical foundation of conscientious objection in much of the Western world. Military service, as argued by Augustine, was acceptable if the war was just. Like Cicero, the architect of The City of God maintained that a war could not be just if undertaken solely out of revenge or merely as an exercise in the pursuit of power or the acquisition of economic or territorial gain. In Christian doctrine, a war was just if based on the moral necessity to defend the innocent. Today we might protest that innocence is more likely to be protected through the non-use of violence, but the idea of an honorable war has been strongly held from early military history: in the West, for example, from the customs of pre-medieval Germanic societies, and later in the medieval code of chivalry (Johnson, James, 1981). Medieval doctrine also reclaimed some of the “just cause” rationale of the Romans, such as the obligation to punish evil. Augustine’s approach to war was dominated by his conviction, based on the Bible, that there was a divinely prescribed duty to exact retributive justice against the doers of evil. This strand in the Christian medieval tradition of just war has given rise to diﬃculty, since it is so easily perverted into the dangerous case for ideological warfare: for example, that wars waged by revolutionaries are just, but wars waged by imperialists are unjust (Melzer, 1975). Medievalists also rehabilitated the Roman notion that war was justiﬁable if devoted to the recovery of something wrongfully taken. This rationale also is cause for some modern discomfort. We look to courts to deal with property entitlements, as shown in Chapter One. The Falklands War in the 1980’s showed how easily a claim of ancient territorial dispossession can be corrupted by military ambition. From Augustine onward what preoccupied Christian theologians was not the utter wickedness of war, but a moral dilemma: under what exceptional conditions might a Christian justiﬁably resort to force? For many of his followers, a war was just if necessary to restore a moral order that had been wickedly violated. When the just demands are met, the “licence for any additional violence is revoked” (Clark, 1988). Noticeably, the paramountcy accorded by medieval moralists to the issue of going to war (ius ad bellum) crowded out questions concerning the conduct of warfare (ius in bello). Despite the seminal nature of much of his writing, Augustine’s thoughts on war were not as highly organized as those of his successors. For example, Isidore of Seville (560-636) tightened the bonds between the Roman and medieval concepts of just

Universal Authority in Pre-modern History

war, giving the somewhat illusory appearance of linear doctrinal development. Much of the late medieval doctrine on just war was derived from Gratian, whose Decretum became the foundation of that doctrine in the canon law (Johnson, James, 1975). It was Gratian who ﬁrst clearly propounded, free of theology, that war was not always inappropriate for Christians. Justiﬁcation for resort to war required fault on one side, so that war-making might qualify as corrective in purpose, designed to suppress the evil of injustice on the other side. Even more illustrious were the contributions of Aquinas, who developed the famous neo-Roman concept that a war must have a just cause (iusta causa). This line of ethical and legal argument was considered by St. Thomas to be a position that should be taken up within the jurisdiction of the Church. Following Gratian, Aquinas in his Summa Theologica (1266-1273) reduced the concept of just war to three conditions. First, the war must be fought on “right authority”, whereby the avenger acts as the “minister of God” against the transgressor. Second, there must be a “just cause”, as in the case of Roman doctrine. Third, war must be motivated by “right intention”, to punish a grave fault. For Aquinas too, then, there must be a just side in a just war. But this third proposition failed to address situations where neither of the parties could be seen to qualify as a just participant. The modern conception that both might be at fault put a strain on the medieval mind. Later commentators have likened this casuistic approach to the legality of war to Pandora’s box. As Nussbaum (1950) observes, it created the prospect that “practically all topics of international law may be drawn into its orbit: territorial sovereignty may be contemplated from the viewpoint that its violation furnishes a just cause of war; and the same approach may be made to the law of treaties, to the law of embassies, and so on”. In short, the Catholic doctrine contributed to the later notion that war could be justiﬁed by a wide range of provocations. Moreover, Gratian and Aquinas barely touched on questions about the limitations of war. Warfare was prohibited only to men of the cloth: bishops and clerics. Medieval warfare was conducted only by members of the warrior class of society and those who owed fealty to them. The later development of non-combatant immunity from the ravages of war has been attributed to two principal factors: a kind of snobbishness among knights, which led them to want to ﬁght only against those of their own class, and perhaps also something of the chivalric tradition, which led at least some knights to conceive of themselves as protectors of the innocent. It may be suﬃcient to mention just one more contributor to the medieval just war tradition: the canon lawyer Raymond of Penafort (c.1175-1275). By the late 13th century, many in the Christian West were probably comfortable with Raymond’s proposition that there were ﬁve conditions of a just war: (i) the wager of war must be a layman, since men of the Church were not permitted to draw blood; (ii) the end of war must be to recover goods or defend one’s country from attack; (iii) the end of war must be to secure peace after all peaceful methods have failed; (iv) the intention in war must be to obtain justice, without hatred, cupidity or vengefulness; and (v) the authority to conduct warfare must proceed from the lawful order of the ruler, or from the Church when the war is of the faith.

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So the values of the Christian West on the question of war became an amalgam of religion, morality and law. In the early history of Islam, there was also a fusion of norms, but with less emphasis on the virtue of paciﬁsm. What emerged was a sense of divine mission: an obligation to sustain the new faith through prayer, recitation and fasting, but also to cleanse the culture (dar al-Islam) of its impurities. For many followers, war might be necessary to punish idolaters wherever the will of God was most ﬂagrantly resisted. Participation in such a holy war (jihad) was obligatory, in theory for all able -bodied Muslims. Entry into paradise was the promised reward for those who fell in the service of God. The obligatory nature of jihad is emphasized throughout the Koran, which represents God’s most meaningful scripture. It is a completed sacred text, revealed as truth to the prophet Muhammad over the 23-year period of his mission (c. 610-632), but kept in oral form until two years after his death. Scores of verses in the Koran refer to war. Often in violent language, these passages reﬂect an obsession with the enemy, like the Jewish scriptures, exceeding the less frequent and less intensive calls to holy war in the Bible. Potentially, Islam appears the most militant of the three great “martial” religions. Like other sacred texts, however, the Koran is full of inconsistencies, being the work of many hands. Its references to war vary considerably. In the choice of interpretation, a devout Muslim is likely to venture into controversy, risking the charge of heresy. Some verses call for non-violent strategies for defending or propagating the faith. Others envisage holy war as purely defensive in nature. Still other passages seem to be derived from the pre-Islamic stage of the Arab culture, sanctioning aggressive war but only within traditional legal limits. In a fourth and more dangerous category, many verses in the Koran bristle with menace, demanding the prosecution of holy war without restriction: “But when the Sacred Months are past, then kill the idolaters wherever you ﬁnd them, and seize them, beleaguer them, and lie in wait for them in every stratagem, for God is oft-forgiving, Most Merciful” (Firestone, 1999). Textual diversity regarding the nature of jihad has created controversy within the Muslim community. “Islam” means “submission”. The reward for submitting to God’s will is eternal life. For many Muslims, like many Jews and Christians, the highest purpose of life is obedience to divine authority, strictly conceived. Children of God are ruled by this paramount obligation. The secular rights of the individual – even the right to life itself – cannot prevail. Strict Muslim religionists, like their counterparts in other monotheistic religions, have had to live in a more complicated world than that of their tribal, and mostly rural, ancestors. So Islamic and Judaic fundamentalists have insisted that the will of God must be incorporated into their legal codes, mixing secular and spiritual concepts of obligation. In the case of Islam, the legal code is treated ﬁrmly as a merely human construct. Therefore, it is fallible, open to revision, and subject to theological override by authoritative interpreters of religious law (the shari’ah), which is eternal and immutable (Neusner and Sonn, 1999). Expert knowledge of religious law requires many years of specialized study. So interpretation of the call to military jihad is a technical matter beyond the counsel of a soft heart or a tolerant spirit. Holy war

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might, therefore, be demanded in the absence of moral fault, simply on the basis of inﬁdel status. In practice, the doctrine of jihad has not been as threatening to non-Muslims as it may sound. The theological diﬀerences within the global Islamic community are very considerable, perhaps as wide as those dividing other faiths. New readings of the Koran collide with the old. Before the ﬂight to Mecca, according to Firestone (1999), Mohammad and his followers “tended to be quite moderate with regard to war or any kind of physically aggressive behavior against their detractors, even in the face of aggression committed against them” Indeed “they avoided physical aggression at almost any cost and suﬀered physical and emotional abuse as a consequence”. Mohammad himself may have built his reputation as a man of unusual integrity on his early career as a mediator. Like the founders of other great religions, he might be distressed to learn of the harshness that some of his followers have chosen to inﬂict upon his scriptures. Muhammad is sometimes portrayed as a man of disarming gentleness, of “almost feminine sensibility”. Often, it seems, he “spoke ... with a ﬁerce compassion about the evils of the world. The strong, stark outline of Islam as we know it now was absent in its founder; and like the rocky deserts with red pinnacles among which he lived, he changed with the changing colors of the sky. His service was ascetic, his aim was to conquer the world; and between asceticism and conquest his mind, ﬁlled with brilliant contradictions, moved helplessly from pole to pole” (Payne, 1959). In practice, Christians and Jews were often treated leniently under Muslim rule. Devout people of other faiths willing to submit (dhimmi) were permitted to stay as permanent residents of Muslim countries, provided they paid their taxes and lived peacefully in conformity with Islamic standards of dress and behavior. Until the late Middle Ages the Arab-Muslim territories included most of Spain as well as all of North Africa and the southern latitudes of the Near East. Life for the Jews, then and there, was generally easier than under Christian governance. But they could not forget that in the age of Muhammad many of their ancestors had been innocent victims of a ruthless jihad waged against the Jewish residents of Medina. The status of the dhimmi was always at risk, subject to revocation at the conqueror’s whim. It was the Muslims’ theory, more than their normal practice, that ﬁlled the inﬁdels of the Middle Ages with dread (Johnson, Paul, 1987). Jerusalem and the Wars of the Crusaders. The pre-modern pattern of war is illustrated most chillingly in the 100-year period of religious wars in and around the city of Jerusalem: that area corresponding to the present countries of Israel, Syria, Lebanon and Egypt. Jerusalem has been at the center of international controversy for almost two millennia, sacred to Jews, Christians and Muslims alike. The city itself has existed for more than 3,000 years, one of the oldest cities of antiquity. No other place resonates with the spiritual intensity of Jerusalem. No other city has suﬀered so much from the inhumanity of religious strife, or stood in so much need of collective benevolence and wisdom among the nations of the world. It represents a problem for which the modern system of international law and diplomacy has not yet found a solution.

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The earliest records of Jerusalem show it was once a city under Egyptian control, but around 1000 B.C. it was captured by David, founder of the joint kingdom of Israel and Judah, and became a Jewish capital. Thereafter it came under various regimes. It was the conversion of Constantine to Christianity, after his re-establishment of the Roman Empire in 324, that led to the building of Christian shrines in Jerusalem and Bethlehem, including the famous Church of the Holy Sepulcher. In 614 the Persians invaded the area; the churches were destroyed; and the inhabitants massacred. Shortly thereafter, in 638, Jerusalem was captured by the Muslim Caliph Omar (or Umar), the second Arabian caliph, who succeeded Abu Bakr. In the previous year Damascus had fallen to the Muhammadan army, apparently betrayed by Christian malcontents. Jerusalem oﬀered to capitulate on condition that the caliph in person came to sign the treaty of peace. Omar permitted himself the luxury of a modest triumph. Mindful of Muhammad’s entry into Mecca in 630, he entered Jerusalem on a camel, “giving an impression of ostentatious simplicity” (Payne, 1959). After alighting, he made a special show of his commitment to his new role as protector of the Christians of Jerusalem. Omar’s regime was to prove harsh and dictatorial, and his successors embarked on a policy of even more rigorous Islamicization. In 698 the construction of the Dome of the Rock was begun. Yet, despite the theocratic nature of the regime, for almost 300 years both the Omyyad and Abbasid lines of Islamic rulers of Jerusalem maintained a relatively liberal policy toward the Jewish and Christian residents. A regime of religious tolerance continued until Jerusalem passed into the hands of the Shi-ite caliphs of Egypt, and the new masters ordered the destruction of rebuilt Christian shrines. A century later, the Egyptian overlords of the city were displaced by the Seljuk Turks, cutting oﬀ the routes employed by Christian pilgrims to the birthland of Jesus. By the end of the 11th century the Normans were in ascendancy throughout much of Western Europe, as far north as England and southward to the heel of Italy and Sicily, which they had just wrested back from the Arabs in the name of Christianity. Spain, however, continued to be occupied by its Moorish conquerors, and the Catholic Church was entering its most militant phase of spiritual reconquest. This era of Christian militancy coincided with the rise of a truly dominant class of military aristocracy symbolized by the knights in service to kings, barons, and powerful prelates. The First Crusade was launched by Pope Urban II, and his call for a holy war was echoed, and rendered more eloquent, by numerous others obsessed with the same duty to cleanse Europe of its spiritual inﬁdelities by wielding the sword of Christ. It seems unlikely that the First Crusade could have gone forward simply as a cavalry charge of pious, papally mandated, knights, “inﬂamed with the ardor of charity” and promised redemption for their earthly sins through immersion in a just and holy war (Foss, 1975). The peasantry also had to be engaged to swell the avenging warriors to the level of a conquering army. Urban’s call was taken up by zealous, semi-rabid preachers such as Peter the Hermit (?-1115), whose ﬁery orations attracted a following of thousands of poorly armed, untrained recruits. Others were rallied to the cause by popular leaders like Walter the Penniless. Jerusalem, the site of the Holy Sepulcher, was the obvious target for Christian zealots committed to a holy war against the forces of Islam. At the end of the 11th cen-

Universal Authority in Pre-modern History

tury, the city famous for its religious associations was also a center of commercial signiﬁcance, numbering well over 60,000 residents, mostly Muslims but of various ethnic origins. The rulers of Jerusalem, at the crossroads of international trade, were possessors of strategic advantage. The Christian march on Jerusalem resulted in a ﬁve-week siege led by Raymond of St. Gilles (1041-1105), the ﬁrst Christian prince to take up the cross. His engineers, in the manner of medieval warfare, ﬁlled the moat, built two siege towers, a number of armored roofs, a huge battering ram, and dozens of wooden ladders. These engines were added to the armory of arbalests that shot javelins instead of the arrows projected by regular crossbows. The assault was reinforced by armies led by Tancred, King of Sicily (1076-1112), who had just taken Bethlehem, and Godfrey of Bouillon (c. 1060-1100). Raymond’s force was strengthened further by the divisions among the various rulers of the region. The Muslim world was fractured. The Fatimid caliphate in Cairo was reduced to a state of military impotence. Syria was weaker than it had been for over a hundred years, broken into ineﬀective and rival principalities ruled by Turkish atabegs. Palestine was ready for the taking. After the penetration of Jerusalem’s crumbling walls, the Christians plunged into one of the most horriﬁc slaughters of innocents ever recorded. It is believed that no less than 40,000 Muslims fell victim to this mindless orgy of bloodletting. Europe applauded this work, committed in the chivalric tradition of the knights of Christ. The acknowledged ruler of the new Jerusalem was Godfrey of Bouillon, Duke of Lower Lorraine and a descendant of Charlemagne. He refused the crown of this tiny Latin Kingdom, but accepted the title of “Baron of Jerusalem and Defender of the Holy Sepulcher”. His successor, his younger brother Baldwin, had no scruples on this point, or any other. His odiousness had the strange pallor of insanity, earning him a special notoriety among the Arabs (Payne, 1959). The fall of Edessa to the Muslims in 1144 sent waves of shock throughout the Christian West. Once again the Church was aroused. The most menacing voice was that of the charismatic Cistercian monk, St. Bernard of Clairvaux (1090-1153), whose assurances of paradise in return for holy service on the battleﬁeld ran convincingly through the realms of Christendom. This spiritually troubled mystic became “the conscience of all Europe”. His inﬂuence on reform within the Church was unequaled. In the battle for the papacy between Innocent II and Anacletus II, it was Bernard’s support for the former that carried the greatest weight, and Innocent’s successor, Eugenius III, was virtually Bernard’s pupil. St. Bernard was also “the great cheerleader of the Second Crusade” (Reston, 2001). This time the papal call to arms by Eugenius netted several crowned heads, including those of the pious Louis VII of France and Conrad, the King of the Germans, who as Holy Roman Emperor provided the titular leadership of the Second Crusade. An ill-conceived siege of Damascus failed entirely after four days, when the attackers withdrew for lack of a supply of drinking water. In Arab eyes, this failure did not enhance the prestige of the Christians attempting to maintain strongholds in Syria and Palestine. In Damascus itself, the option of cooperating with the Franks now seemed dubious. More signiﬁcantly, the failure of the Second Crusade renewed the hopes of those Muslims urging a policy of jihad.

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The slaughter of 1099 and the ﬁasco of 1148 brought to the foreground of world history one of its more impressive ﬁgures. In 1157, in the town of Takreet, Ayyub adDin, an able Kurd from northern Armenia, was presented with a son, Yusuf, in highly inauspicious circumstances. On the night of Yusuf ’s birth, it is recorded, his uncle Shirkuh, a high-placed oﬃcial, killed a commander for insulting a woman. Shirkuh and his brother Ayyub ad-Din were banished from Takreet and took up residence in Mosul in northern Mesopotamia, where a strong Arab ruler, Zenghy (Zange or Insad-al-Din) (?-1146), had taken power. The Kurdish brothers were soon called into Zenghy’s service as military oﬃcers, obligated, like their new leader, to the cause of Islamic union and reconquest (Lane-Poole, 1906). The boy Yusuf grew up in Baalbeek and Damascus, reputedly pious, intelligent, generous, and well-mannered. It appears, however, that he too had to learn to renounce the temptations of the ﬂesh and the vine. His education was supervised within the court of Damascus. Later called Salah ad-Din, or Saladin, he learned about the monstrosity of 1099. “It was burned in Saladin’s mind and psyche, central to his education and determination, abhorrent in the extreme. At so inglorious a conquest as that of the First Crusade, Saladin had to harness the colt of his desires, the desire for rage, revenge, retribution, recompense, justice” (Reston, 2001). Since its taking by the Crusaders, Jerusalem had been occupied by a mostly Frankish, largely French-speaking, almost exclusively Christian, population, perhaps not much more than 25,000 in number. The knightly ruling class had grown softly self-indulgent. Through marriage with Syrian, Lebanese and Egyptian wives, the newcomers had fathered a gentler and more sensual race and fashioned a life-style that could be reconciled with a less austere version of the Christian faith. They took to Arab dress and learned the Arabic language. In their pleasant enclave, the Latin Kingdom of Jerusalem, the Christians had settled down to live in peace with their Arab neighbors, now mostly uninterested in the stern injunctions of a holy war. Jerusalem was, however, surrounded by a sea of Islamic discontents. A mood favoring revenge and re-conquest was never far below the surface. After the recapture of Edessa from the Christians by Zenghy’s army, it appeared that the tide was turning. Another strong Arab leader emerged in the person of Nurredin (Nur ad-Din) (1118-1174), who continued the work of Arab uniﬁcation through the merger of Syria and Mesopotamia and the subjugation of Egypt under the Sunni faith. Reluctantly, the young Saladin had obeyed Nurredin’s order to join his charismatic uncle, Shirkuh, in the southern campaign that resulted in the capture of Cairo. When Shirkuh, the self-proclaimed King of Egypt, died mysteriously, apparently poisoned, Saladin was appointed by Nurredin as his uncle’s successor in Cairo. Submissively, he undertook the business of displacing the Shi-ite faith with the Sunni way. In an impressive display of ﬁlial duty, Saladin oﬀered the kingship of Egypt to his father, Ayyub ad-Din, but the oﬀer was declined. Saladin’s relations with Nurredin deteriorated, and for a while it appeared that the imperious ruler of Damascus would march against the rising young king in Cairo. His death intervened, clearing the path. A year later Saladin took control of Syria. At

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the age of thirty he was now recognized as Emperor of Syria and Egypt, and the most powerful military leader in the Middle East. Saladin’s rise coincided with the most virulent phase of the holy wars between Islam and Christianity. In the name of Christian piety, the most abominable inhumanities were perpetrated by anti-Islamic butchers such as the treacherous Reginald of Chatillon. Today we are horriﬁed by these bestialities: “the pogroms of Jews, the lust for booty, the eﬀusions of greed, the ﬁghting and killing for their own sake” (Reston, 2001). In the world of Islam the hatred of Christians was nourished by regular accounts of new atrocities. Jihad evolved as a defensive concept, as Islamic holy war required and justiﬁed by a pattern of external provocations on the part of unbelievers. Though the Koran insisted that Allah loves not aggressors, engagement in a defensive war against the enemies of the One True God was guaranteed to earn spiritual rewards beyond earthly imagining. There was an array of Christian provocateurs behind the butchers on the battleﬁeld. The most conspicuous of these in the 1170’s was Pope Alexander III, whose dramatic career included the humiliation of King Henry II of England in punishment for his instigation of Thomas Becket’s murder, which, incidentally, fulﬁlled the destiny of martyrdom for someone “vain, overbearing … not a likeable type of feudal prelate” (O’Reilly, 1985). Although relatively tolerant of the small, professionalized Jewish community of Rome, Alexander detested the presence of millions of Muslims in the Holy Land. Before his death in 1181 he had sounded alarms at the reuniﬁcation of the Islamic principalities and the growing threat to the Latin Kingdom of Jerusalem. To wield the sword of Christ against the inﬁdels to the east, there arose a number of military orders. The most illustrious of these were the Hospitalers, the Templars and the Teutonic Knights, all founded in the 12th century. As early as the 1070’s Pope Gregory VII had envisioned a papal army that would ensure the dominance of spiritual authority over the temporal, but it was not until half a century later that most of the military orders became operational. The Order of the Hospital of St. John the Baptist, which had its origin in Jerusalem before the First Crusade, was created to provide care for the sick and poor of the city. In 1113 it was chartered as a religious order and put under the direct authority of the pope, independent from local control. In 1136, with the support of St. Bernard, the Hospitalers were given papal sanction to undertake military operations, but throughout the remainder of the 12th century ﬁghting was still a secondary occupation (Rudorﬀ, 1974). They were granted lands for the building of hospitals and guesthouses, which provided food, wine, clothing and bedding for the needy. They were the ﬁrst in world history to create an eﬃcient military medical corps, organized for the purpose of recovering wounded from the battleﬁeld and bringing them back to a properly equipped hospital (Reston, 2001). The Knights of the Temple were founded in 1115 in order to provide protection to Christian pilgrims. At ﬁrst these volunteers did not think of themselves as a religious order, but in 1127 their founder, Hugues de Payens, met with St. Bernard, who inspired him with the vision of an organization of holy warriors or “monks of wars”, indeed as an order of military Cistercians. Almost overnight, donations were showered upon the Templars, who had been licensed to kill for Christ. In Jerusalem

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they were given a building said to be on the site of the ancient Temple of Solomon, and thus they acquired a reputation as guardians of the temple (Rudorﬀ, 1974). They were assured by the mesmerizing abbot that their killing would not be homicide, but “malecide”, the divinely sanctioned extermination of the unjust. “To kill a pagan is to win glory to Christ”. It was this conversion of purpose that precipitated the Second Crusade (Seward, 1972). Both the Hospitalers and the Templars grew into huge, prestigious organizations that answered directly to the pope. The Templars became especially powerful. Their exemption from episcopal control was due not least to the huge wealth amassing within them. In Rome it was seen to be unfair to impose on the bishops the burden of ﬁnancial administration. The Templars and Hospitalers became the model for another famous militaryreligious organization, the Knights of the Teutonic Order. After the capture of Acre in 1191, a fraternity of German merchants took over a hospital in town and oﬀered medical care. Sponsored by German princes and bishops, this medical group was also put under monastic and military rule. The Order received privileges from various popes and obtained extensive lands in Germany and Italy as well as the Kingdom of Jerusalem. Its main castle was at Montford, northeast of Acre. As Saladin’s power grew among the newly reunited Muslim lands of the Middle East, he prudently avoided unnecessary and debilitating struggles with these formidable Christian military organizations, secured in virtually impregnable castles commanding the frontiers and sea-routes to Europe in and around the Kingdom of Jerusalem. But like the Muslims in 1097, the Franks in 1178 had deeply divided leaders. The ablest and wisest of them, Raymond III of Tripoli (1140-1187), was overridden by reckless rivals; a truce with Saladin was broken; and the Islamic leader was ﬁnally provoked into his jihad against the Christian aggressors. In July 1187 the Frankish army was overwhelmed, and then massacred, at the Horns of Hattin within sight of the Sea of Galilee. The prisoners were bound with rope and herded to Damascus. The common soldiers were sold as slaves for three dinars each, and the Knights of the Temple and the Hospital were executed by privileged scholars and holy men: “unbelief was killed to give life to Islam”. Three months later Jerusalem fell. Despite the temptation to exact revenge, Saladin refused to permit a massacre of the Christians within. Instead he honored an arrangement brokered by Balian of Ibelin, who had been pressed reluctantly into service by the desperate citizens of Jerusalem. Along with Raymond of Tripoli, Balian was one of the few Christians who had earned Saladin’s respect as men of honor. Balian had discovered the advantages of diplomacy when he secured a four-year truce with Saladin during a drought. During negotiations over the fate of Jerusalem, Balian warned Saladin that if he did not order an amnesty, he would enter the city to ﬁnd it put to the torch, gaining nothing on earth or in the eyes of Allah. The sacred Dome of the Rock would be the ﬁrst to be destroyed. It was agreed that the defenders would surrender as if taken by force. They would be allowed to keep their property. Those able to ransom themselves would be set free in return for an agreed-upon price: ten gold bezants for each man, ﬁve for a woman, one for a child. Those unable to raise the ransom would be taken into slavery. Balian knew that 30,000 bezants would be available from the

Universal Authority in Pre-modern History

Hospitalers’ treasury, which had been built up from revenues extracted from Henry II of England as reparation after the murder of Becket. The treasure was suﬃcient to pay for the freedom of seven thousand Christians. A collection in the streets raised over a thousand bezants, freeing hundreds more. In marked distinction from 1097, the Muslim take-over was peaceful. After a debate that featured arguments for destruction, Saladin ruled that the Church of the Holy Sepulcher should remain untouched. To be a good Muslim was to respect all holy sites (Reston, 2001). The recapture of Jerusalem in Muslim hands, after 89 years under Christian rule, led to the Third Crusade, called for by Pope Gregory VIII and reiterated by his successor, Clement III. It was led by three of Europe’s most powerful monarchs: Richard I of England, Philip II Augustus of France, and the imposingly manly, but aging, Emperor Frederick I Barbarossa, King of the Germans. The German contribution was modest. The great warrior Barbarossa drowned in a Cilician river on his way to the Holy Land, and most of his demoralized army gave up the crusade before its mettle could be tested in holy combat. Philip Augustus and Richard had been lovers in their youth, when the English prince was attending the French court as the favorite son of his remarkable mother, Eleanor of Aquitaine. Her eﬀorts to tutor Richard in the knightly art of courtly love, in the pleasure palaces of southern France, had not been entirely successful (Reston, 2001). After their falling out of love, the future kings became entangled in numerous dynastic struggles within and between the two rival domains. Yet the call of the Third Crusade did bring them together again, committed under a sacred oath to a common cause. Together they joined forces with those of King Guy of Jerusalem, who had been laying siege to Acre. Two years later, the three kings ﬁnally succeeded in taking the city, after remarkable heroism on both sides. After the departure of Philip Augustus, his duty done, Richard was left with the responsibility to wrest back the Kingdom of Jerusalem from the armies of Saladin, both men symbols of irreconcilable religions. We might look back on these illustrious ﬁgures as remarkable in diﬀerent ways. Both have gained legendary status that places them above the level of normal men. Saladin was certainly superior as a statesman and humanitarian. Admittedly the beneﬁciary of generous biographers, he is surely the more appealing by the modern tests of greatness (Lane-Poole, 1906). Equally romanticized, Richard was a brave and resourceful commander, who succeeded in capturing the strategic ports of Haifa, Caearea, Arsaf and Joppa, but not the citadel and shrines of Jerusalem (Reston, 2001). Medieval reputations often have mysterious origins. Henry II of England has been called “the greatest conqueror since Charlemagne”, although he never fought a single battle (Gillingham, 1984). Richard, his son, is generally regarded as a great warrior, perhaps because he was almost continuously suited up for combat. His ﬁrst experience of war came in 1173, when, as a 15-year-old, he joined in the revolt against his father, under the tutelage of Count Philip of Flanders. Yet he seems to have shared the reluctance of his contemporaries to seek out battles that were clearly unnecessary. It may be closer to reality to depict Richard’s 25 years of military service as a career in inexorable campaigns rather than as a pursuit of decisive victories. He was good

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at logistics. He never met Saladin on the ﬁeld of combat, but his stamina generally wore the enemy down. The impetuous element in the legend had no counterpart in the man. Military Restraint and the Cult of Chivalry. Both Richard and Saladin, it seems, accepted the notion that war could be fought, between leaders of honor, with a measure of moral restraint. Despite the insistence of so many Christians that their gentle God was always on their side, the Christian record of behavior in pre-modern warfare was almost totally deplorable. Was the medieval Islamic record much better? Islamic doctrine, like its Judaic counterpart, has always been obsessed with the moral cause of holy war, especially in the Arab world, where the willingness to wage war reﬂects the fear and loathing that have characterized relations among neighbors since earliest times. There has always existed a “latent state of war” between Muslims and inﬁdels, ready to be activated at the call for jihad. Some Arab scholars have described the doctrine of Islam as “bent on conquest” (Nussbaum, 1953). On the other hand, Muslim ideas on the conduct of warfare (ius in bello) have been generally superior to Christian views of the same period. Nussbaum (1953) notes that Abu Bakr, Mohammed’s ﬁrst successor, warned his victorious soldiers to spare women, children and old men. They were exhorted “not to destroy palms and orchards, or to burn homes, or to take from the provisions of the enemy more than needed”. Prisoners of war were to be treated with pity. Ransoming and exchange of prisoners were common in the Islamic world during the medieval period, although ransoming did later spread to the Christian West. Booty had to be delivered to the authorities for equitable distribution. On the Christian side, can we ﬁnd any mitigation in a tradition of “fair warfare” associated with the warrior cult of chivalry? Derived from the French for horse, the term “chivalry” has gone through several changes of connotation since its original meaning: the rank of a mounted knight. By the High Middle Ages, being chivalrous was to possess such virtues as courage, honor, fairness, respect for women, and concern for the poor. It is important not to surrender to the romantic imagery of medieval chivalry in the Christian West. The obligations of the code were conﬁned to the knightly class. It was more religious than humanitarian in motivation, though Urban II and other prelates of that time were genuinely concerned to modify the barbaric excesses of knighthood associated especially with the Burgundian aristocracy (Foss, 1975). With the advent of the Hohenstaufen line in 1138, many of the German knights, not least Barbarossa and his vassals, did come close to exemplifying the best in the chivalric tradition (Bumke, 1977). But the concept of “noble warfare” (guerre nobiliaire) did not remove the option of resort to “mortal warfare” (guerre mortelle), in which no lives were to be spared and no prisoners taken (Vale, 1981). Yet despite our modern taste for deconstructing myths, it is hard to deny the evidence that a certain amount of moral improvement was taking place within the warrior class of the Middle Ages. It was an ethical shift of sorts that crossed over the boundaries of Europe at a time when national consciousness was beginning to become the most potent force in world aﬀairs. French or English chivalry was not appreciably diﬀerent from German or Spanish or Italian. It was an elite phenomenon,

Universal Authority in Pre-modern History

reﬂecting a transnational system of behavioral norms acknowledged by the leaders of spiritual and secular institutions, despite its origin and growth outside both sectors of authority in medieval society. In early medieval Europe, knighthood was not hereditary, but won by prowess in combat and associated martial arts, comparable perhaps with the class-based samurai tradition of Japan. “Practice fell far short of the ideal, but excesses were mitigated: prisoners were held for ransom, not massacred, and the ferocity of barons in the brief periods between wars was sublimated in tournaments, general organized melees, which became formal jousts in the later Middle Ages. The ideal ruler, as among the Muslims, was extravagant, courteous, impeccably brave. Impulsive acts of generosity were much admired” (Bowle, 1977). Despite the ferocity of medieval war and the unslakeable thirst for conquest, a moral code was emerging among the more honorable protagonists on both sides. It was possible for hard and determined ﬁghting men like Saladin and Richard to bear a grudging respect for the honor that resided among the dross in the enemy camp. Many Christian residents of the Levant liked the Arabs and copied their ways, and Arabs learned, of course, to distinguish the honorable from the dishonorable among the Christian community. They were not blind to the elements of philanthropy mixed in with religious bigotry among the military orders, or to the peculiar virtues behind the façade of chivalry. Reﬂections. Wars in the Age of Faith were fought with savagery. The ethos of medieval warfare may seem, from a 21st century perspective, not greatly diﬀerent from that of classical antiquity. Chivalry introduced a higher standard of behavior on and oﬀ the battleﬁeld, while it was a normative system designed for knights. It seems to have had little inﬂuence on warriors of less exalted status. The privilege of ransom for prisoners was reserved for princes or knights (Nussbaum, 1954). At a time of such ferocious slaughter on the battleﬁeld, it is diﬃcult for the modern observer to credit the medieval ethic of chivalry as an eﬀective constraint on the horrors of warfare. Yet the ideal of an honorable warrior has survived even to our own time, testament to the durability of the heroic theme in virtually all civilizations. In early Tudor England the chivalric ethic was beginning to be challenged by the humanists, but even the great Erasmus, a quasi-paciﬁst, could not bring himself to condemn entirely the military culture of his time, even though he perceived the heroic tradition as a “conspiracy to disguise the brutality of war under the trappings of fame and renown” (Baker-Smith, 1990). The tradition migrated beyond the shores of Europe. Romances of chivalry travelled to the New World in the baggages of the conquistadores. The ethic of an honorable warrior became a popular theme of Latin American culture, not least in Mexico and Brazil, and in the Deep South of the United of the United States (Burke, 1990). One might wish to think that the strand of honor in the military cultures of the world has contributed to the universal legal restrictions on the conduct of warfare that became familiar, but not entirely eﬀective, in the 20th century. The normal assumption that chivalry is of European origin has been challenged. James Liu (1967) has drawn attention to the more ancient phenomenon of the Chi-

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nese knight-errant. Like his Western counterpart of later date, the Chinese knight was motivated by altruistic sentiments and led a life of apparent commitment to social justice. He elevated the virtue of courage, preferring death to dishonor. In many ways he reﬂected universal aspirations. But the old knights of China arose from all social classes, not only from the gentry class. Indeed they consciously challenged the Confucianist status quo, displaying contempt for social barriers. Unlike the knights of medieval Europe, these Chinese adventurers had no religious aﬃliations, and their actions lacked the sanction of any institutions of the state. They never organized themselves into military orders, and never claimed any monopoly of chivalric virtues. They owed no loyalty to king or overlord, showed no special regard for smooth manners or any special interest in the arts of courtly love. It appears that the ius in bello had antecedents in that ancient Chinese code of martial honor. Pacifism and the Laws of War For some, the restraints of chivalry were not enough. Most of the religions of premodern history provided scriptures that could be interpreted as prohibiting violence in any form. The churches, temples and synagogues oﬀered an institutional haven not only for men and women of faith, but also those of conscience who aspired to a better life based on love of humanity. Invariably, they had to turn inward to ﬁnd such a life, secluded from the harshness of the secular world. Christianity and Buddhism, perhaps the gentlest of the major scriptural traditions, were not alone in attracting humanists who denounced the entire existence of war. As clerics, they themselves were forbidden to engage in the hostilities of the evil world outside. As residents of the city of God, they were committed to a virtuous life of paciﬁst example. Questions. Outside the cloister, who were prepared to challenge the inevitability of war? Who were the advocates for a lasting peace? Was there any example of a medieval stand against the horrors of warfare? The First Peace Activists. Despite the constancy of war, the ideal of lasting peace had existed since pre-medieval times. Ancient paciﬁsts included Lao-tse, Confucius, and Asoka the Great, but peace treaties came and went without hope of perpetuation. The ﬁrst serious eﬀort to produce “peace without end” seems to have been the perpetual peace treaty concluded in 532 between the Emperor Justinian I (527-565) and King Chosroes I of Persia (531-579). It lasted less than a decade. It was followed in 562 by another peace treaty between the same two sovereigns. This agreement was more comprehensively conceived. It included a guarantee of protection to refugees, but not to prisoners of war, and it was intended to last for 50 years (Preiser, 1984). At that time, however, the general view was that agreements signed by rulers were personal undertakings that could not bind their successors. In the Western world, only the most pious of clerics embraced the extreme philosophy of total non-violence, invoked even in circumstances that might seem to justify a degree of force in self-defense. Although true paciﬁsm could not survive in

Universal Authority in Pre-modern History

the streets of the pre-modern world, the idea of lasting peace was not unknown to the public. It was a lawyer, not a cleric, who was the ﬁrst to advocate peace as a permanent condition. Apparently no one before Pierre Dubois (1250-c.1320) had taken up a career in pamphleteering in order to argue the case against war. Far from the life of monastic retreat, Dubois was a busy and successful lawyer in Normandy, and actively engaged in the politics of his day. He did not conceal his loyalty to his royalist clients, but he was convinced that war “bred” war. In his ﬁrst work, A Mere Fragment (Summaria Brevis) written in 1300, he argued for a war to end all wars. It had to be a total war, waged by an united Christendom against all inﬁdels; a war that might have to be ruthless in execution in order to ensure the outcome of perpetual peace. The monarch he deemed best qualiﬁed to preside initially over an exhausted but peaceful world was his own sovereign, Philip IV (“le Bel”) of France (1268-1314). Philip was indeed a handsome, though ultimately corpulent, man, but he was also an intellectual fascinated by the ideal of a universal monarchy based on a re-Christianized Constantinople. In his second pamphlet, Recovery of the Holy Land (De recuperatione Terrae Sanctae) (1306), Dubois argued again that war was a pre-requisite to the goal of universal peace, along with secular education, reform of the clergy, and international arbitration. Girls and boys should have equal access to a basic classical education before channeling oﬀ: boys to logic and theology, girls to medicine, surgery, and other useful matters. He opposed celibacy among the clergy. Wives would serve as peacemakers in the image of Solomon’s wives, who “turned away his heart”. The goal of Christian peace, prescribed as the rationale for war against the inﬁdels of the East, was to be attained through a general council of prelates and secular rulers, which would be convened by the Pope. Modern cynics have noted that, for Dubois, it was the king of France, not the Holy Roman Emperor, who was expected to occupy the hegemonial niche at the top of the hierarchy of temporal authority. The ﬁrst duty of the council, once established, would be to outlaw the resort to war among its members. Instead, Christian state disputes would be settled by arbitral tribunals chosen from a panel of adjudicators, in the manner of the city-states of ancient Greece (Knight, 1924). Their decisions would be appealable to the Pope (Nussbaum 1954). Cynics aside, some have seen Dubois as a man of extraordinary vision, 600 years ahead of his time, founder of the notion of world organization (Nippold, 1924). The second counselor of peace was not a lawyer, but a literary genius who would exercise remarkable inﬂuence on the mind and imagination of the Western world. Dante Alighieri (1265-1321) was born into a Florentinian family of commercial moneylenders. Like most scholars of his age, Dante found himself involved in the vicious factional politics of his city and its rivals, which resulted in mandatory exile for the last twenty years of his life. Steeped both in the secular classics of Rome and in the doctrine of Christian theology, the poet displayed an inquiring mind of extraordinary breadth and sensitivity. In exile, he became associated with the cause of the Empire, which he believed to be willed by God “for the perfection of human life”, designed to bring a rule of justice and order to a realm fractured by cupidity on the part of those such as the wicked rulers of Florence.

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Dante’s poetry is full of the images of peace. In his Divine Comedy (Divina Comedia) (1310-1321) he envisaged peace as the spiritual and civic reward that might be ours for learning to develop our human capacities for wisdom and benevolence. In this intensely Christian dream, it was the Emperor’s role to guide the universe to the happiness of lasting peace, and the duty of the Pope to lead humanity to the blessedness of Paradise. Less illustrious than Dante, Marsilius of Padua (c. 1275-1342) deserves mention as another early advocate of peace (Starke, 1968). He was educated at Padua’s famous university, specializing ﬁrst in medicine. In 1313 his erudition was so widely recognized that he was appointed Rector of the University of Paris. Assisted by John of Jandun, he completed his treatise Defender of the Peace (Defensor pacis) in 1324. For taking the side of the Emperor Louis IV in his conﬂict with Pope John XXII, Marsilius was condemned as a heretic in 1327. He was certainly guilty of secularism. Like Dante, he died in political exile, in his case in Bavaria. In Defensor pacis Marsilius went further than Dante in elevating the state as the institution solely responsible for the maintenance of peace. An early medieval democrat, Marsilius held that rulers should be chosen by the citizens, and, like an ancient Chinese sage, he thought that the ruler could be deposed or punished if he betrayed their trust. The state should be free of papal interference, so that it could discharge its duties in the maintenance of peace. Since wars were seen to be the result of papal policy, suppression of the Holy See’s temporal ambitions was the ﬁrst step to the goal of international peace. A fourth proponent of the cause of peace before 1500 was the Czech George Podiebrad (1420-1471), King of Bohemia, who put his name behind a peace plan devised by his French adviser Antonio Marini. Like the proposal of Dubois a century-and-ahalf earlier, Marini’s idea was to put together a federation of Christian states to ﬁght the Turks, which would be led by Louis XI of France. Although this central feature of the plan could not have been displeasing to the monarch in Paris, the proposal was considered too vague at the edges to carry the day (Nussbaum, 1954). The plan did not lack boldness, envisaging a common army and a central executive authority – notions that have not yet been found to be possible in the era of the United Nations. Signiﬁcantly, it followed the proposal of Dubois in suggesting that arbitration should replace war as the normal mode for the settlement of inter-state disputes before they deteriorated into violent conﬂict. Podiebrad’s ostensible purpose was to remove the Turks from Constantinople, but historians have unkindly suspected him of seeking the French king’s protection from the Emperor and the Pope – the only man in Europe who might be able to provide double indemnity along those lines. Christian fear of the Turks continued to be a common motivation of the proponents of world peace, even up to the end of the 16th century. The First War Crimes Trial. One of the most powerful dynasties of medieval Europe was the house of Burgundy. The region of Bourgogne – lying between the Loire, the Saone, and the upper Seine – had been a Scandinavian kingdom as early as 406. The history of the duchy of Burgundy is traced from the investiture of Richard (le

Universal Authority in Pre-modern History

Justiciar) as commander of the French army that was assembled to drive out the Norman invaders from that area in the ﬁnal years of the 9th century. The duchy had passed from one branch to another of the famous Capetian family, between 1016 and the end of the medieval era. In the ﬁnal stages of the Hundred Years’ War, the house of Burgundy was under the greatest strain. Determined to preserve his great estates, Duke Charles of Burgundy (Charles the Bold) had earned a particular notoriety for his ruthlessness in war. But nothing he had done matched the deeds of his appointee, Peter von Hagenbach, the governor of the town of Breisach. In 1472 Hagenbach carried out unimaginable atrocities against the residents of Nesle. These acts of terror were so appalling, even by the barbaric standards of the 15th century, that they were judged to be subversive of the entire ethos of knightly chivalry, and an abomination in the eyes of God. In response, Austria, France and various victim towns were induced to enter into an unnatural alliance with the common purpose of punishing Burgundy. In 1476 Hagenbach was seized and put on trial, and in the following year his patron Charles was defeated, killed and mutilated at the battle of Nancy. For the trial a special tribunal was created by the various members of the multinational coalition. When we look back at these judges, we see what may be regarded as the ﬁrst international war crimes tribunal. Hagenbach’s lawyer argued that his client had merely been following “superior orders”: that he was under a solemn duty to obey his master, the Duke of Burgundy. This medieval court was wholly familiar with a vassal’s oath of fealty, but found the accused’s acts totally inexcusable, indeed contrary to the law of God. Before his execution; Hagenbach was divested of his knighthood, which had been dishonored by the commission of crimes that it had been his duty as a knight to prevent (Schwarzenberger, 1970). If we interpret this trial as a precedent for the Nuremberg and Tokyo war crimes trials at the end of World War Two, then we might wish to place it in the category of “crimes against humanity”, as Schwarzenberger suggests we should, rather than treat it as a “war crime”. Either way, this judicial reaction to barbarism stands out against the landscape of military history as a solitary evidence of medieval recoil. Either way, it is an open question whether the ethos violated at Nesle was the medieval code of chivalry or a dimly perceived principle of the law of nations. Reﬂections. The medieval advocates for peace had remarkably little inﬂuence on the course of world events. War was generally accepted as necessary under certain conditions, and often not evil at all (Elbe, 1939). Moralists today are disturbed by the extent of acquiescence in war during the Age of Faith. Most of us are troubled by the fact that violence is still an inherent feature of human behavior, and by the possibility that war may indeed be “inevitable”. The causes of war are a topic of research in the behavioral sciences (Bennett and Stam, 2004). To most sociologists today, as to Luther Lee Bernard (1944), the causes are numerous: economic, political, social or cultural, religious, moral and metaphysical, as well as biological and psychological. Despite disappointments during the period of the United Nations, many readers may not yet be ready to abandon hope that wars can be controlled by international institutions.

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Before the outbreak of the First World War, the English philosopher Goldsworth L. Dickinson at King’s College, Cambridge, attracted an impressive following of students and colleagues with his reason and eloquence. Christianity, he argued in 1896, had failed, along with other religions, to take suﬃcient account of science. Now it was necessary to put the faith of all society in the human capacity for improvement. The catastrophes of the war that followed were seen to be the result of a massive institutional failure. In 1915 he began the movement for a League of Nations that would transcend all the traditions of religious faith (Dickenson, 1920). Since then war management issues have persisted as the principal challenges to world order. Yet some seeds were sown for the future cultivation of international humanitarian law. The International Red Cross and the related Geneva Conventions of the 20th century could be regarded as building on the philanthropic motives of the founders of the military orders that provided hospitals and medical care for the sick and wounded in times of war, although these facilities were not made available on the ﬁeld of combat. In most feudal wars, prisoners were still considered part of the booty available for the taking by the conqueror. The enslavement of prisoners of war was gradually abandoned in the West, under instruction from the Third Lateran Council of 1179, but this act of mercy was restricted to Christian soldiers. Non-Christian prisoners were not deemed worthy of equal protection, though arguably because of the poor prospect of reciprocity on the part of the Muslim enemy. The pre-modern logic of god-based warfare was inexorable. According to Nussbaum (1953), military prisoners were still subject to slavery in Italy and elsewhere centuries later. Some eﬀort was made to limit certain modes of killing and maiming. The most famous initiative of this kind in the Christian West was the prohibition of the crossbow and arch by the Second Lateran Council in 1139, perhaps because it seemed to fall below the bar of chivalry. Yet there seems to have been general acquiescence in the use of poisoned weapons (Ward, 1795). A modern-day humanist has little choice but to conclude that despite the existence of some honorable pre-modern leaders, such as Saladin, Raymond of Tripoli, Balian of Ibelin, and even Richard the Lion-Hearted, attempts to “civilize” the treatment of the enemy only rarely prevailed over the normal reign of bigotry and hatred. Trade and Navigation Pre-modern history oﬀers slim pickings for economists. There was no sense of a national economy before the 15th century, much less of an international market system. To the extent there was a “system” of any kind to ensure the economic survival of settled communities, it was based either on tradition or command. In traditional societies, economic stability depended on the preservation of family continuity – usually from father to son – within speciﬁc crafts or other economic sectors. In authoritarian societies, economic welfare depended on the degree of social stability provided by autocratic rule (Heilbroner, 1999). However, the later pre-modern era, from 1100 to 1500, is a period that invites controversy among economic historians. From the perspective of most Western historians, this 400-year period is dominated by the entrenchment of a feudal order,

Universal Authority in Pre-modern History

whereby wealth resided chieﬂy in land holdings and the produce they yielded. Power was possessed mostly by a land-owning elite of princes and local nobles and squires. Wealth, in the main, was not shared. Indeed, because of the form it took, it was not regarded as widely shareable. For most, the chief preoccupation in feudal society was survival. Many have argued that the feudal order was a uniquely European phenomenon. It is certainly easy to deﬁne the term “feudalism” in such a way as to restrict it to the European experience. Others, however, see feudalism more broadly as a stage of world history that witnessed the emergence of a new form of human organization. Both China and Japan are often treated as having had a feudal stage of development with characteristics similar to the European model (Reischauer, 1956). For, as Alan Smith (1991) notes, “when one looks at the core institutions of feudalism rather than superstructural trappings such as chivalry, one sees that they fall into the wider category that has been broadly deﬁned as the tributary mode of production”. At that time there was still no conception of economic production. Land, the principal source of wealth, was not considered a tradeable commodity, as real estate. Land rent had not yet been conceptualized. Labor was tied to land estates: there was no awareness of the possibility of a labor market. Nor was there any sense of “capital” as a factor of production (Heilbroner, 1999). Others look back at that same period as “early modern”, rather than “pre-modern”, discerning the seeds of modern capitalism, not in its furrowed ﬁelds but in the commercial town-centers of feudal society. Historians diﬀer on the causes of the “rise of the Western world”, which can be attributed to that period (North and Thomas, 1973), and on the factors contributing to the evolution of the “modern economy”. Various weightings have been suggested for science, technology, discovery, conquest and overseas trade (Smith, Alan,1991). It can be argued that the rise of the modern capitalist system was due primarily to the boldness of pre-modern European explorers and navigators. Just as easily, it can be attributed to the assertiveness of conquering, pre-modern, European states, and even to the expansionist, proselytizing claims of competing faiths. However, the rise of capitalism is also associated with the more “global” phenomenon of international trade. Questions. In view of the future impact of capitalism on the development of international law, it is important to recall the early modern conditions that gave rise to the system of world trade. Who supplied the vision and energy that propelled the merchant community outwards to distant shores? Which peoples were most prominent as pioneers in the establishment of new trade routes on land and at sea? Who took the risks, and how were these risks made manageable? How did international trade ﬁrst become amenable to regulation? East-West Trade and Travel. For centuries before the pre-modern era, the Middle East had been the great commercial transit zone between East and West. Long before the T’ang dynasty (618-907), Persian and Arab traders had braved the famous Silk Road to bring luxurious Chinese goods to the elites of the West: spices and porcelains as well as silks. The T’ang capital of Ch’ang-an (or Xian), in the western province of

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Shansi, was the eastern terminus, an extraordinary meeting-place of cultures and commodities. With a population of two million, it was the largest city in the world, as well as the wealthiest and most cosmopolitan; and it was built on trade. In those times there were at least two principal overland trade routes that could be described as the Silk Road – just as today there are seven or more Arctic searoutes that could be characterized as the Northwest Passage. In the south, the main overland route (the Oasis Route) started in Xian, traversed Gansu province, Yumen Pass, and the Xinjiang region, then proceeded, by two alternative roads, to the Pamir mountain range and beyond, through Central and Western Asia, to the eastern shores of the Mediterranean. From the Yumen Pass, moreover, there was also a main northern route (the Steppe Route), which eventually found its way, beyond the Aral and Caspian Seas, to Constantinople at the western end of the Black Sea (Elisseeﬀ, 2000; Che, 1989). By the early pre-modern era, traﬃc along these routes passed in both directions. Chinese trade with the West was established as early as 126 B.C., when the ﬁrst Chinese caravan of gold and silk traveled over the Pamirs to exchange goods with peoples to the west (Elisseeﬀ, 2000). Westbound travelers included Chinese Buddhist pilgrims and scholars seeking out holy sites as far aﬁeld as Ceylon, which was the center of the oldest Buddhist tradition. At that time Chinese Buddhists traveled extensively to become familiar with Indian scriptures. Voluminous tracts were translated and carried home, providing information on distant geography, climate, customs, and trade prospects, as well as variations in Buddhist thought (Sorensen, 2000). Modern research shows that the so-called Silk Roads were really a vast overland grid, with dozens of interconnecting trails. The T’ang era also witnessed the establishment of two Maritime Silk Routes over the seas; one connecting China with the countries of the Persian Gulf, and the other with East Africa. For centuries before then, Chinese traders had been navigating close-to-shore routes in the South China Sea, opening up commercial relations with the coastal communities of Southeast Asia. Improvements in T’ang navigational skills and technology created a new era of East-West trade, when the potential dimensions of international maritime commerce were greatly expanded (Sun, 2000). During that period the T’ang emperors encouraged interaction with Arab merchants and navigators, recognizing the possibilities of mutual beneﬁt (Elisseeﬀ, 2000). Indians also were very actively engaged in international trade throughout the period of pre-modern history. The springboard for Indian traders was the littoral of Eastern India, known as the Coromandel. By the period from 550 to 750 Coromandel merchants had established a pattern of regular trading contacts with the coastal communities of the Malayan Peninsula. South Indian trade organizations, comparable perhaps with the commercial gilds of medieval Europe, have been traced to the 11th century (Stein, 1965). Modern Asian historians have emphasized the importance of the role of the Mongol Empire in the further development of East-West relations in the 13th and 14th centuries. Mongolia had been at the center of communications, encompassing both the “Oasis” and “Steppe” Routes for East-West trade. But it was not until the end of

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the 12th century, with the rise of Ghengis Khan (1163-1227), that Mongolia began its policy of expansionism. One of the most remarkable research achievements in the ﬁeld of world history in recent years has been the success of scholars in re-discovering, deciphering, and interpreting the Secret History of the Mongols. On the basis of this new scholarship, Jack Weatherford (2004) has provided us with an impressive picture of a conqueror who could now be regarded also as one of the chief architects of modern statecraft. Geoﬀrey Chaucer, who was a diplomat as well as a writer and not given over to sentimentality, rated Genghis Khan as the greatest ﬁgure in the history of conquest: “so excellent a lord in all things”. He was a man of both war and peace, though only the black banner of his soul has survived the white. Certainly no one of that age possessed his genius for rapid deployment, nor his talent for administration. He is said to have had a written language created so that an eﬀective bureaucratic system of record-keeping could be maintained. His magistrates were the ﬁrst outside China to be required to read and write. He permitted self-rule to his captive peoples, provided they remained loyal to him. He killed their previous rulers, but did not take hostages for ransom. He valued women and encouraged his ﬁrst wife Bertha to advise him on civic matters. More than any conqueror since Alexander, Genghis Khan mastered the amalgamation of the many civilizations around him into a new world order. By the end of his remarkable empire-building career, he had created a diplomatic and commercial network of linkages between China and Europe that have remained intact to our own time. He was the ﬁrst to replace the feudal system of aristocratic privilege with a modern system based on merit, achievement and personal loyalty. The Mongolian commanders’ proclivity to slaughter may have been exaggerated by Western recorders fearful of such a masterful stranger (Shagdar, 2000). Unlike most conquerors of that era, the ferocious Khan did not permit torture of the enemy after battle in search of strategic information, much less for the pleasure of inﬂicting pain. At least it appears that the Mongolian strategy of massacre was selective, limited to cities that declined to surrender (Roberts, 1992). Genghis Khan seems to have felt chosen to conquer the world, but, as a pagan, he saw no evil in the toleration of diverse religious faiths brought under his rule. He prayed only to the Eternal Blue Sky (Weatherford, 2004). Above all, Ghengis Khan and his successors were able administrators, almost uniquely so in the annals of nomadic conquest. The Mongols were the ﬁrst to endow an extensive cross-cultural empire with a network of post stations for the support of mounted relay-teams of traders and other travelers. This was the ﬁrst international postal system. These stations were usually 25-30 miles apart, a normal day’s riding, although this was a pitifully weak ambition for Mongol horsemen. In time an entirely new overland trade route was opened up with facilities superior to those available on the older roads and passes (Shagdar, 2000). The result was “history’s largest freetrade Zone”, featured by a lowering of taxes for all. According to Weatherford, doctors, teachers, priests and educational institutions were declared to be tax-exempt. His conception of civic enlightenment held all power-holders to be subject to the same laws that governed the humblest herder. Like Alexander’s imagined universe, his would be a world of common laws.

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The Mongolian impact on world civilization now seems to have been undervalued. Some may blame this on Eurocentric bias among specialists in world history; others on the Mongols’ own proclivity for secrecy. A more accurate assessment of the Mongol Empire requires a reappraisal not only of Genghis Khan himself, but also of his successors. By far the most illustrious of his descendants is, of course, the Great Khan: his grandson Khubilai (1260-1294), who conquered and uniﬁed China, the most populous, most aﬄuent, and perhaps least governable, country on earth. Most China specialists, and almost all Chinese historians, have emphasized the Sinicization of the Mongol conquerors in the late 13th and 14th centuries. In their eyes, the Great Khan owed much of his reputation for greatness to his discernment in absorbing so much of the great Chinese civilization that he had overcome by superior military force. It is true, of course, that Khubilai Khan recognized that he could realize the ancient Sung dreams of a uniﬁed empire only by building around a “core cultural identity” that was Chinese, not Mongol, but not enough credit has been given to the Mongol vision behind that achievement. It was the Great Khan, not his Chinese mandarins, who envisaged a universal currency, a universal alphabet, and a universal system of commercial laws. It was his, very un-Chinese, idea to create a system of universal education, so that even the poorest children would be literate. It was Khubilai’s successors who combined calendars to produce a more precise 10,000-year record of time based on the most accurate astronomy. It was the Mongols, above all others, who encouraged trade between East and West. The ﬁrst serious European eﬀort to make contact with the Mongols was initiated at the Council of Lyons in 1245, motivated by the fear of conquest by these nomadic pagans. Pope Innocent IV commissioned two Franciscan friars, John of Plano Carpini and Lawrence of Portugal, to meet with the leader of the Mongols to determine his intentions. Plano Carpini’s description of the Mongols was quite respectful, but his report was locked up in the archives of the Vatican. It is to the illustrious Polo family of Venice that we are indebted for the most famous 13th century Western accounts of the commercial links between East and West. At that time many Venetian merchants had built warehouses in Constantinople for the storage of goods arriving from the Far East by the northern overland route. In 1254 Niccolo and Matteo Polo took up residence there as jewelry merchants. Six years later, sensing the imminent loss of Venetian trade advantage to their Genoese rivals in the city, the Polo brothers set out eastward with an easily transported cargo of jewels. Plunging into unknown terrain, they worked their way onward, “sometimes lingering in the tents of a great chief, sometimes arrested by a bloody war which closed all passage”. After a three-year period of involuntary immobility in Bokhara, they were invited to join a group of envoys on their way to the court of the Great Khan. There they were received with royal courtesy and questioned on many matters. Venetians had traded in Kiev as early as 1247, but the Polo brothers had ventured further than any other westerners (Larner, 1999). Niccolo returned home with Matteo after almost a decade to ﬁnd himself widowed. So when the brothers started out again for China two years later, in 1271, they took Niccolo’s 17-year old son Marco with them. Little is known about the childhood

Universal Authority in Pre-modern History

of Marco Polo (1254-1324). It may be inferred that he learned to read and write Italian. He claimed later in life to have mastered four Asian languages, but it may be signiﬁcant that he was unable, at the end of his famous adventures, to write his memoirs unaided. His defenders have seen him as a clever, patient and tenacious Venetian. Detractors have suspected him of greed and unnatural ambition (Hart, 1967). The jury has been out for over seven centuries (Larner, 1999). Nothing was heard of the Polos for 23 years. When they suddenly reappeared in 1294, they were virtually unrecognizable in their Mongol attire and drooping moustachios. Almost immediately Marco was pressed into military service, for his embattled republic was once again engaged in conﬂict with the enemies of Venice. After a losing battle at sea, Marco had leisure imposed upon him in a Genoese dungeon, where he dictated his Travels to Rustichello of Pisa, a fellow-prisoner. Travelers’ tales were a popular form of entertainment at that time, and the prospect of fame and aﬄuence could not have been overlooked. Marco’s account of the second Polo expedition was so vivid – and, more strangely, so stunningly detailed – as to generate a measure of skepticism that has never entirely dissipated over the years, despite the passing of over seven centuries of largely unsuccessful scholarly eﬀorts to rebut his claims. By his own colorfully depicted account, he and his father and uncle had been taken into the court of the Great Khan and given positions of some inﬂuence and prestige (Longworthy, 1974). Marco certainly seems guilty of exaggeration. Moreover, scholars have found it diﬃcult to believe he relied exclusively on memory in composing his Travels. “If he really did, he must have been one of the greatest mental prodigies of all time” (Humble, 1975). We cannot discount the possibility that he was an imaginative genius. On the other hand, Marco Polo’s book was the ﬁrst intelligible, eye-witness account of the road and tribulations that would have to be encountered by future travelers to the distant East. It was a remarkably informative manual for traders and others wishing to venture out of the Western orbit. The inaccurate maps of the day might have been greatly improved, if Marco’s data had been taken seriously. Not least, the famous book oﬀered a vision of the universe freed from the prejudices that weighted down and diminished the cultures of the West, at a time when they were about to enter the most dynamic period of world history. Marco Polo’s work created indelible images of the East that inﬂuenced future generations of explorers, traders and adventurers, inspiring hopes for knowledge of an expanding human universe. European Pre-eminence in Maritime Commerce. While Marco Polo was dictating his famous story in his Genoese prison, hundreds of ships were at sea, contesting their patrons’ rights to exclusive trade relations in the Middle East. At one time the Venetian settlement had extended into the plains of Northern Italy, but in the 6th century the decline of the Roman Empire and the encroachments of the Lombard invaders had driven many into the narrow coastal strip around the famous lagoon at the head of the Adriatic Sea. Over time the Venetian community came to depend more and more heavily on its maritime skills. The merchants of Comacchio, who traded salt and salted ﬁsh in exchange for corn and other goods, became the model for the rising merchant class of Venice (Lane, 1973).

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Through these centuries it was necessary for the communities of the Adriatic to come to terms with much larger regimes, such as those of the Franks and the Byzantines. Venice especially had suﬀered for its resistance to the power-holders of the day. The Byzantine Empire was, however, in decline, and the overland trade routes between East and West were giving way to the ocean as the most convenient and cheapest medium for international trade. The Adriatic was ready to assume the central role in the development of maritime commerce. Conveniently, the countries of Northern Europe and the Middle East were obsessed with holy wars. The golden age for Venetian and Lombard pragmatists had arrived. Charlemagne’s successors had concluded agreements with Venice in 840 and 845, conﬁrming its old territorial boundary with the mainland and providing a degree of security from external interference. Venice, in turn, had promised not to harbor runaways from the mainland or sell Christians into slavery. Despite the perﬁdy of the Venetians, who continued to turn a nice proﬁt from the slave trade when the opportunity presented itself, the treaty with the Franks continued in force through repeated renewals over the next 150 years. During these many years of negotiated privilege, Venice ﬂourished as a commercial center and, eventually, as the possessor of the strongest naval ﬂeet in Italy. Consolidation of its power as a city-state was ensured by its citizens’ shipbuilding skills, which made them masters of the sea, equipped with the best ships aﬂoat for war was well as trade. By the time of Marco Polo, Venice was still vying with its rivals, but by 1380 Genoa, its most serious competitor, was ﬁnished as a maritime power. Thereafter, for the next 200 years, Venice was pre-eminent as an empire of trade and a dazzling capital of literature, art and learning (Chambers, 1970). By the end of the pre-modern era, Venice was also the core of the early modern system of banking, insurance and investment. Various risk-sharing practices can, of course, be traced back to pre-classical antiquity, when the sense of tribal or communal purpose prevailed over individual interest. The code of Hammurabi, written around 2000 B.C., contained a provision based on the principle of indemnity, whereby the merchant-borrower who had been robbed was relieved of his debt by the lender-investor. In Rhodes around 1000 B.C. the principle of general average was applied to water-borne trade, so that a loss at sea would be distributed between the ship and cargo owners. But it was in medieval Italy that many of the principles of commercial law ﬁrst became established as the basis of modern international trade. From the early 14th century Venetians began an annual expedition of commercial vessels to the ports of western Mediterranean, and beyond to those of Northern Europe. The Belgian port of Bruges was the chief mart for the international exchange of goods in that region, but some of the Venetian ﬂeet began to call at other ports, such as London, Southampton, and Sandwich, carrying Eastern spices more cheaply than was possible overland. In return, they took on wool, hides and metals for processing in Italy and export to the East. This new pattern of international trade was facilitated by Italian innovations in the keeping of accounts and the organization of ﬂexible and sensible credit and insurance arrangements.

Universal Authority in Pre-modern History

Trade between Italy and Northern Europe in the Middle Ages was a potentially proﬁtable enterprise. Wool had become the principal commodity of international trade in the North, and Flanders was the logical center of the system, since the Rhine and its tributaries provided the most convenient routes for the distribution of cloth. When the Italians entered the system, the use of ships, expertly managed, became an attractive alternative for distribution to more distant markets. But expansion of the European export trade was highly risky. Pirates were a constant danger at the western end of the Mediterranean, and all the way northward to the English Channel. Moreover, these were stormy seas, threatening disaster even to the most skilled of mariners. The risk of loss was high. The development of international trade could not be secured without a high degree of transnational cooperation within the trading community. Pre-modern government did not envisage a public role in the development of trade. It fell to the merchants themselves to band together in their common interest, and the gild (or guild) was the chosen instrument. The Gild Tradition. It is a matter of unending dispute among economic historians how to deal with the gild tradition of the pre-modern era. To begin with, should it be treated as a universal phenomenon, discoverable everywhere as a feature of preindustrial cities? Should it be traced back to antecedents in classical antiquity? Were the gilds a barrier to economic growth, retarding the emergence of free trade and modern capitalism? Is it appropriate for posterity to credit gilds with the promotion of uniform standards in the manufacturing of consumer goods and in the maintenance of fair pricing? How important was their role in the development of the rules of international trade? The central problem lies in the diversity of gilds. It is necessary to distinguish three principal kinds: social gilds, merchant-gilds, and craft-gilds. If we include social gilds, we are certainly driven back to earlier times and to many cultures. Numerous systems of civilization are known to have developed “fraternal groups”: societies of men, mostly young, bound together by ties of friendship and attentive to such rites as sacred feasts. Over time, many social gilds evolved into mutual support organizations, which, upon payment of an entry fee, oﬀered assistance to members in the event of family or commercial misfortune. Some were more philanthropic than others, looking outward to the needs of the general community as well as to the interests of the members. Much is known about such gilds in ancient Greece and Rome. In the case of Greece, most political theorists tended to disapprove of such loyalty groups, which were seen as a dangerous challenge to the overriding responsibilities of citizenship. In the Roman Republic these fraternities were more favorably regarded as an expression of local pride in the quality of craftsmanship. During the Republic, numerous Roman trades had acquired their own “colleges”, but under Augustus and his imperial successors more and more Roman merchant-gilds became subject to state control within an increasingly restrictive licensing system (Weber, 1958). The Roman gild system may have survived the Dark Ages, or maybe it was merely re-discovered. As early as the 7th century the Lombards had created a coiners’ gild, perhaps to control the money supply. By the end of that era, European merchants

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were beginning to use gilds as a mutual aid and insurance mechanism against natural or human hazards, which aﬄicted both local and long-distance trade in periods of instability (Black, 1984). Although the gild tradition can be interpreted in various ways, there is no disputing the rise of the merchant class as an era-deﬁning feature of the Middle Ages. In classical antiquity, merchants had of course been accepted as a necessary link between the ﬁeld of manufacture and the market place. Indeed the wealthiest of them became essential to the funding of many military expeditions and public works. But it was in the pre-modern era that the commercial community came together, manifesting an international emergence that was virtually independent of church and state. In Europe and the Middle East, agriculture remained the centerpiece of the medieval economy. Most people lived oﬀ the land. Nobles and church organizations derived their social status and their fortunes from their great estates, but by the end of the pre-modern era a much more dynamic force had appeared in world history. New energies generated new routes to wealth and power, routes in the head as well as over land and sea. As commercial cities grew up, enabled by permanent surpluses in food production, urban life became increasingly specialized and progressively focused on opportunities for the expansion of human experience. Division of labor, government by market demand, became the logic of the city (Weber, 1958). The conjunction of town and merchant-gild occurred throughout most of medieval Europe, but the nexus was ﬁrmest in the North, where commonalties were discovered most readily among the burghers of the Low Countries and the Baltic. The kings and princes of Northern Europe found that their own state-building interests were served most eﬀectively by regulating the trades and taxing their proﬁts. Resistance to the pressures of central authority became the unifying force of the commercial centers. In many places the politics of urban life was a struggle between local and central taxers and regulators of the merchant community. But in the German towns especially, the merchants came to control the local political system and found that their strength lay in a common economic purpose, most famously worked out through the Hanseatic League. The origins of this famous international bloc of pre-modern commercial cities are uncertain, but it seems to have consolidated by the early 13th century on the initiative of the Teutonic merchants based in the North German towns facing the Baltic. The idea of a system of commercial security was inspired by the numerous dangers inherent in long-distance trade at that time. Mariners still lacked compass, chart, and chronometer at sea. In the absence of loadline standards, overloaded vessels went down with some frequency in rising seas. By staying close to the shore, vessels were prone to disaster on the rocks. Long waits in port were common. There were no common agents, no posts. Winter conditions and the fear of God kept vessels in port for lengthy periods. These and other diﬃculties were the challenge. Winter conﬁnement led to the formation of transnational, port-based merchant groups with common interests in the Baltic trade: Germans, Dutch, Russians, and Scandinavians clustered on Gothland and in towns such as Wisby, Hamburg, Luebeck, and Dortmund. In these and other ports, rules were devised by a common council. In some places, the city, as the beneﬁciary of the merchant community,

Universal Authority in Pre-modern History

agreed to be responsible if a trader suﬀered “malignant shipwreck” or was robbed of his goods within the city’s limits. In those times, even the Church regarded ﬂotsam and jetsam as free for the taking: “property of the shore”, a “gift of Providence”. The early merchant-gilds in the Hansa towns had to struggle to shape such mores to their lesser disadvantage. Eventually, the laws of the League were accepted as reasonable and attained a level of general compliance (Zimmern, 1991). Meanwhile, craft-gilds were also spreading throughout Europe, spreading to Northern Europe from Italy. By the late 12th century many of the older merchantgilds had become dominated by wealthy merchants chieﬂy interested in building up their proﬁts through monopolies. Other merchant-gilds were more cooperative groups with a shared interest in maximizing the volume of trade to the advantage of all. Increasingly, rifts emerged, giving rise to splinter groups in the form of craft-gilds, whose chief aims were rather to maintain a steady volume of business for the members, to ensure a satisfactory standard of workmanship, and to guarantee a fair price. Some restricted the number of apprentices that any one master might keep and the tools that could be used, displaying a mixture of mutual interest and public spirit. In the early 20th century, some European economic historians saw in the rise of these craft-gilds a proof of Western “progress” that was not apparent elsewhere (Unwin, 1938). But modern scholars have divided on the merits of medieval European craft-gilds. Some have looked at these organizations as instruments designed essentially to restrict competition, as “irrational fetters on free trade and free enterprise”. For others, these societies are seen more charitably as “agents of social solidarity and economic morality”, which recognized the human value of labor and had to be overthrown before labor could be treated in the spirit of modern capitalism as a tradeable commodity (Black, 1984). So we are all free to take sides on the gild tradition. Was there ever a golden age when a comfortable balance was held between the interests of suppliers and consumers, between the individualistic ethic of enlightened self-interest and the public morality of social welfare? Like Marsilius of Padua we might still have to struggle to reconcile the ideals of the medieval craft-gilds with the claims of the state and the demands of “civil society”. The Genesis of Commercial Law. The expansion of the market-place in the premodern world was truly spectacular. The rising scale of commercial operations, both overland and at sea, linking buyers and sellers of distant and unfamiliar cultures, made it essential to consolidate ancient laws and customs that could be established as a universally valid legal framework. Although there was still wide scope for informal arrangements, it became increasingly obvious that cross-cultural trade had to become more systematic through the development of formal commercial institutions and procedures. With the appearance of the pre-modern city-state and commercial nation, it became necessary, above all, to bring large-scale trade within the ambit of national legislation. One of the ﬁrst purposes of this area of statutory law was the standardization of weights and measures, which was crucial to stable currency arrangements. The need to strengthen the basis for credit transactions led to the invention of the

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bill of exchange, which came to be honored as a regular, but not invariable, practice in the market-place. Negotiation of bills of exchange was one of the chief activities of the medieval banks. Money lending was another function of the banks, but in many European countries the merchant community had to overcome religious dogma against the sinful lust of usury. “By the laws of the Church and State, when a Christian usurer died, the Devil had his soul and the King had his goods and chattels. Therefore, for about two hundred years after the Norman Conquest, the trade of money lending was almost entirely in the hands of the Jews, whose souls were lost anyhow” (Saltzman, 1964). Eventually the sheer convenience of money-lending proved persuasive, inducing merchants of other faiths to take this gamble with their soul and their children’s estate. In 1290 the Jews were expelled from England, and their place in the money-lending business was taken by the Lombards and Venetians. The rising level of bankruptcies may have reﬂected a declining competence in the arts of risk-taking, which in turn would have provided a broader foundation for commercial insurance. Discrimination against foreign traders was common throughout most of the Middle Ages, but it was usually stronger at the local level. Central authority tended to see more clearly the advantages of foreign traders, who usually represented a higher level of fair dealing as well as an easier target for revenue-raising. In England, outside the international ambit of the Hanseatic League, it was the sovereign that enacted legislation to protect foreign traders. In 1151, for example, Henry II allowed the merchants of Cologne to have their own gildhall in London, and granted them special privileges. Royal policies and enactments such as these were, in fact, the predecessors of modern international prohibitions of practices that discriminate against aliens, though such injunctions were widely ignored at the borough level. It scarcely needs to be suggested that the royal patronage of foreign merchants had less to do with enlightenment than with the prospect of easily collected revenues. Alien protection would depend on the sophistication of the modern sovereign state. Through cooperative arrangements worked out under the Hanseatic League, conditions for the resumption of peaceful maritime commerce began to improve. The League was perhaps “the strongest transnational alliance Europe has ever had” (Gold, 1981), albeit lacking the coercive institutions of sovereign states. The “legitimacy” of the famous inter-city alliance was based on a convergence of common laws designed to secure collective action against all robbers and pirates who represented a threat to maritime commerce. After its formal establishment in the mid-13th century, the League grew quickly into a commercial empire of vessels, docking facilities, warehouses, commodity exchanges, and banks. From the modern perspective of international trade law, the ancient law merchant was the seed-bank of the rules of commercial practice. Long before the beginnings of the pre-modern era, throughout the period of classical antiquity, merchants had been left alone to ﬁnd a realistic balance between supply and demand and to settle on a fair price under varying conditions of competition. They were free to transact business across national boundaries in accordance with their own practices and local customs. Good faith – reliance upon the trust and goodwill inherent in the business community – was the “bastion of international commerce” (Trakman, 1983).

Universal Authority in Pre-modern History

But in the pre-modern era, merchant custom began to evolve diﬀerently from town to town, posing challenges to merchants as their trade expanded over jurisdictional boundaries. Throughout the early Middle Ages the settlement of trade disputes throughout Europe was left mostly to local trade fairs instead of royal courts. The merchants chose arbitrators from their own community, and fair days and fair grounds were the appointed time and place. The practice worked reasonably well in most cases of strictly local trade, but it was a rough and incomplete system of justice. In common-law England, for example, the law merchant was restricted mostly to pleas of debt and contract. The long tradition of witness-proof – swearing to belief in the plaintiﬀ ’s version of the truth – was less than wholly reliable. Not least, the expansion of non-local medieval trade created a growing need for codiﬁcation of merchant customs. As we have seen, the lex Rhodia (Fhodian law) of the 3rd century BC provided the ﬁrst codiﬁcation of merchant practices within the Mediterranean region. In the 9th century AD the Eastern Emperor Basil I ordered a systematic compilation of maritime rules, which were called the Basilica. In the years that followed, the merchant community arranged for the development of a comprehensive body of maritime commercial customs (the Rhodian Sea Law) that evolved in the Eastern Mediterranean. The proliferation of local customs further west and north had to be checked. Eventually, the customs (or customary laws) of the more important trade centers became increasingly inﬂuential as models for codiﬁcation. For example, the customs of Barcelona, known as the Consulato del Mare, acquired special prestige in the 1340’s as an international recognized body of maritime commercial customs, accepted in the principal western Mediterranean ports such as Venice, Genoa, Pisa, Amalﬁ and Marseilles. Updating was extended to the Rolls of Oleron, named after the island trading post in the Bay of Biscay. Further north, the old Laws of Wisby were modernized and adopted as the Hansa Towns Shipping Ordinance (Gold, 1981). All of these codiﬁcations were a reﬂection of rapidly expanding needs and opportunities within the merchant community. They were not legal commandments. Yet it fell to the advantage of kings, princes, and local rulers, as well as the gilds, to support the growth of cosmopolitan merchant customs, because the new trade brought in essential revenues in the form of taxes of various kinds as well as new sources of employment. Indeed, the entire community was seen to beneﬁt from a system of regulation and dispute settlement based on the principle of the sanctity of contract through the maintenance of “a pliable merchant regime, uninhibited by an aloof system of peremptory law” (Trakman, 1983). Reﬂections. Today we are acutely aware of the regulatory role of the state, and the adjudicative role of state-sanctioned tribunals, in the ﬁeld of commerce. In most sectors of business, legal development and dispute settlement are increasingly brought under a globalized regime of international law, that of the World Trade Organization. Some critics of the WTO question the very legitimacy of such a regime, as if such a centralized system is bound to be insensitive to local needs and entitlements and to the welfare of the natural environment.

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However we choose to react to the phenomenon of globalization, it is useful to be aware of the sweep of history. Most economic historians have been sensitive to the logic of international trade, subject as it must be to legal and other institutional constraints. Similarly, most legal historians see the internationalization of commercial law as an evidence of progress. It seems especially appropriate that the ﬁrst successful codiﬁcations of law for the international community took place in the context of maritime commerce; that international law, like human life itself, originated in the sea. To this corpus of sea laws, the pre-modern era added the rudiments of modern law in the related sectors of banking, insurance and investment. Over the centuries since then, a pattern of consistency has become clear. It is in commercial law ﬁelds such as these, which make up the “transactional” or “economic” sphere of modern legal systems, that the sovereign states of our own era have shown the greatest willingness to accept a commonsense convergence of legal norms and concepts, relatively uninﬂuenced by the vagaries of behavior and cultural tradition (Johnston and Ferguson, 1998). Apparently, it is in the competitive domain of trade that we ﬁrst found it useful to cooperate within a common system of legal rules. Diplomacy and Treaty-Making Western European classicists have wished to emphasize the Graeco-Roman contribution to the early history of international diplomacy and treaty-making (Nicolson, 1963). The overthrow of Rome in the 5th century A.D. is often seen to be the beginning of an era given over entirely to conquest as the only way of extracting beneﬁt from one’s relations with other powers. The availability of a peaceful alternative to conquest, it is frequently assumed, had to be “rediscovered” by Europeans during the renaissance of their civilization. In fact, international diplomacy of one kind or another can be traced back, as we have seen, to pre-classical antiquity and to many cultural traditions. Questions. Just how dark were the Dark Ages in the history of international diplomacy? What kind of diplomatic relations were the Chinese developing with the advantages of exceptional prosperity and stability? How should we evaluate the record of Byzantine diplomacy? What gave rise to the phenomenon of permanent diplomacy in pre-modern European history? How did multinational conference diplomacy originate? Early Modern Chinese Diplomacy. Throughout the ﬁrst half of the period from 300 to 1500 A.D., the practice of diplomacy was most active and regular in the East, especially in China. The achievements of the early T’ang dynasty (618-907 A.D.) provided a model of strength, culture and prosperity to China’s neighbors. Imitation of the Chinese became much more common under the T’ang than under the Han dynasty even in its best years. For the ﬁrst time, China acquired “international” prestige as a dominant power (Reischauer and Fairbank, 1960). Ch’ang-an (Xian), the T’ang capital, became a great cosmopolitan center, familiar with the arrival of foreign missions charged with one purpose or another.

Universal Authority in Pre-modern History

It was during the T’ang period that China’s rulers began to develop tributary diplomacy as a political art form. In times of strength they learned how to extract monetary tribute from their weaker neighbors without inﬂicting unnecessary pain or humiliation. In times of weakness they discovered the practical importance of tribute as a defensive strategy: as an expression of gratitude for earlier alliances and as a realistic recognition of the deference due to the strong. Given the ﬂux of political fortunes, tributary diplomacy for the Chinese was a pragmatic investment in the future. After the fall of the T’ang dynasty, and many years of “barbarian” incursions, a new dynasty was installed in 960 A.D. by a brilliant soldier, Chao K’uang-yin, who became known to history as T’ai Tsu, “Grand Progenitor” of the Sung dynasty. His success in quelling disorders was attributable to a policy of unusual leniency toward former rivals and a realistic assessment of the merit of treaty-making, when a policy of conquest seemed too costly. In 1004, under the Treaty of Shan-yuan, the Sung acknowledged the permanent loss of sixteen northern prefectures and agreed to pay an annual tribute to their conquerors, the Khitan Liao dynasty. In 1055, the Hsi Hsia gave up their eﬀort to conquer China and signed a peace treaty with the Sung, which included a Sung commitment to make an annual payment to their attackers. Meanwhile, the Liao, who had taken advantage of the Hsi Hsia hostilities against the Sung, had been bought oﬀ two years earlier by a generous increase in the tribute received from the prosperous Sung. Throughout the remainder of the Sung dynasty, and of course beyond, resort to tribute became established as an honorable option within the geopolitical framework of the Chinese cultural region. Seen as an enlightened mode of self-interest, it served as an emollient amid the harsh realities of power politics. Whether conﬁrmed by treaty or accepted as resting on convention, tributary relations evolved as an early example of “soft power” at a time and place that accepted the normalcy of unequal states. Byzantine Diplomacy. Despite the lack of reliable documentation, some western historians have concluded that diplomacy of some kind must have continued through the Dark Ages of European history. Although it is not possible to prove continuity with Roman diplomacy, envoys of the pre-medieval type seem to have been used for a variety of purposes: to make peace, to conclude an alliance, to negotiate commercial arrangements and rights of transit, to propose a dynastic marriage, to settle a dispute. In most cities of the early pre-modern world, foreigners were often suspect unless they could produce credentials to prove they were engaged in innocent activities, such as that of honest trade in goods of special value to the local elite. For envoys with a representative status, it was usually necessary to follow special procedures in order to obtain the beneﬁt of protection by the receiving authority. In the Western world the best-documented accounts of diplomatic practice after the fall of Rome are those of the pre-Ottoman Byzantine Empire. Byzantine foreign policy, especially between 800 and 1100, was heavily inﬂuenced by the Roman imperial tradition, though never favored by anything close to the protective power of ancient Rome. For example, in the early Middle Ages it was common for potentially hostile “barbarian” princes to be married to Byzantine wives, and for defeated claim-

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ants to foreign thrones to be welcomed to the civilizing environment of Constantinople, so that the young princes of the region would grow up under Byzantine inﬂuence. This policy of cultural indoctrination was not always successful in the absence of military ascendancy, but it proved generally to be an astute deployment of limited resources. Byzantine ambassadors were trained to report on everything they could uncover that might be of political, military or commercial value to their masters at home. They were used essentially as spies, but under instruction to behave abroad with studied politeness and to entertain with the fullest generosity that their personal resources would permit. In Byzantine diplomacy we see the origins of the modern idea that diplomats are well-dressed and courteous collectors of foreign intelligence. It was an age that had not yet considered the beneﬁts of permanent mission, but Constantinople might be regarded as the “school for European diplomacy” (Nascimento e Silva, 1972). Princes from the East were received at the court in Constantinople, organized by an agency that might be considered the world’s ﬁrst foreign ministry. The Byzantinians also established a special bureau for “barbarians”, which might be likened to the ﬁrst colonial oﬃce! Despite the looseness of the Byzantine grasp of state equality, a serious eﬀort was made to establish a standard of ceremonial propriety for the reception of oﬃcial foreign visitors (Numelin, 1950). The earlier design of coolly correct diplomatic procedures in Constantinople seems to have given way to ostentatious displays of hospitality, as the imperial court acquired some of the polished manners and pretensions of the Orient, with which they were coming into more frequent contact. Bilateral Diplomacy in Medieval Europe. Since the fall of the Roman Empire, the Roman style of diplomacy, through regular correspondence and occasional meetings of envoys, had declined in Western Europe. Massive reallocation of territory between the 6th and 9th centuries created the opportunity for relationships among several more-or-less equal kingdoms, but privileged diplomatic contacts were rare (Ganshof, 1970). Even as late as 1350 the secular system of diplomatic communication was still a fairly primitive aﬀair in the Western world (Abu-Lughod, 1989). Western Europe’s chief contribution to early medieval diplomacy was the Holy See’s unique involvement in the aﬀairs of other powers. Papal envoys from the early Middle Ages (legati ad hoc) were usually sent out on matters pertaining to the Church, but occasionally their mandate would cross the uncertain line between the spiritual and temporal domains. These “apocrisaries” were usually chosen from clerics – bishops, priests, deacons – who made up the palatine personnel of the Church. They included future popes such as Hildebrand (c. 1025-1085), who became Gregory VII in 1073. Although the papacy was the ﬁrst Western power to make systematic use of diplomatic agents, the secular authorities of the 13th century were beginning to learn how the institutionalization and professionalization of diplomacy could serve the national interest. For two centuries or more thereafter, most members of medieval society would continue to think of themselves as sharing a Christian unity, rather than as subjects of separate national rulers. The rulers themselves, however, were

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discovering the advantages of autonomy and the gains to be made from the dexterous conduct of foreign relations (Mattingly, 1955). It was the canonists, the specialists in canon law, who ﬁrst developed the theory of diplomacy through a set of rules concerning the rights, privileges and duties of diplomatic agents. As early as the 11th century the canon lawyers had begun to come to terns with issues confronting those charged with diplomatic tasks: issues such as the meaning and signiﬁcance of sovereignty, the sanctity of treaties, the virtue of peace, the conditions of a just war, and the rights of neutrals and non-combatants in times of war. By the 13th century, most diplomatic envoys were chosen from the intellectual elite who were trained not only in canon law but also in civil law, which was by then incorporating some of the relevant principles of canon law. It is important to know that the ﬁrst practitioners of international law were scholar-diplomats with a nuanced understanding of such issues, and that their application of these principles preceded the age of permanent diplomacy. More surprisingly from a modern perspective, a wide range of persons in the 13th and 14th centuries were accepted as entitled to the status of protected representatives;: not only the envoys of the emperor and of “sovereign” kings and princes, but also the representatives of the “free”, but non-sovereign, cities, of lesser merchant towns, of craft gilds and even universities. No medieval distinction was drawn between “oﬃcial” and “unoﬃcial” envoys, nor between “diplomatic” and “quasi-diplomatic” status. It seemed to be suﬃcient that the sending institution was a legitimate and independent entity. As Mattingly (1966) observes, the size of a sending city was irrelevant. As independent cities, Florence, Venice, Genoa, and even Lubeck, possessed the “right of legation” (or embassy), but not the larger cities that were capitals of powerful states, such as London and Paris. For theorists of that era, the doctrine of delegation encompassed a gradation of institutions that might, in certain circumstances, be entitled to some form of diplomatic representation, and some degree of special privilege. It would remain for later generations of jurists to restrict the right of legation to sovereign states, and to link the status of diplomatic immunity with an order of sovereignty that, like pregnancy, did not admit of relativity. Medieval scholars, accustomed to the subtlety of theological distinctions, delighted in a variety of categories of representatives: ambassadors, nuncios, legates, orators, procurators, and agents, and heralds in times of war. Wealth of terminology appealed to the sprawling medieval mind. The crucial breakthrough in the history of diplomatic practice occurred in the 14th century. At that time, as we have seen, the city-states of Italy were seizing the opportunity to capitalize on the distractions of Northern Europe. In Northern Italy especially, the Lombard and Tuscan communities of the independent city-states, such as Venice, Genoa, Milan, Florence, Pisa and Padua, were enabled to break out of the fetters of feudalism. After the withdrawal of the papacy from Rome to Avignon in the 14th century, Italy became a political vacuum, a “gap in the medieval system of hierarchically ordered duties and loyalties” (Mattingly, 1945). The void was ﬁlled with what we might characterize to-day as a “collateral” system of “sovereign” entities willing to accept one another as more or less equal. After the decline of the Kingdom of Naples, none of these state-like entities was accepted by

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the others as possessing any primacy or special prerogative, such as that conceded to Athens and Sparta in ancient Greece. It became understood by the Vatican that it could not hope to be re-admitted to a position of authority in Central Italy unless it accepted the autonomy and parity of these wholly secular governments, the ﬁrst in Christendom to achieve complete temporal power without any visible support from the Church or the blessing of divine sanction. Unusually sensitive to the vagaries of international trade, the burgher elites of these prosperous cities were even more open to faction than the popular assembles of Athens and other cities of Greece in classical antiquity, where appeals to patriotism could usually be depended upon, in time of stress and threat, to bond together the free spirits of the citizenry. In Italy pragmatism, born of commercial interest and monetary greed, bred skepticism, and perhaps even permitted admiration for a degree of cynicism within the political leadership. In short, the weak went to the wall. Venice annexed Padua and Verona. Milan subjugated Brescia and Cremona. Florence absorbed Arezzo and Pisa. In an amoral political environment such as this, it became evident that no one could be entirely secure. A substitute for war was a commercial necessity, and the solution was a system of permanent diplomacy. The Origins of Permanent Diplomacy. The need to establish permanent diplomatic missions arose from the turbulence of Italian inter-city relations in the early 15th century. Considerations of safety and stability required a more regular ﬂow of reliable, ﬁrst-hand information from the ﬁeld. As Koenigsberger (1987) has noted, the idea of permanent diplomacy did not come easily to fruition. It would be an expensive practice, and host governments of that era were often right to suspect the motives of a foreign government wishing to plant an oﬃcial in their midst. More often than not, diplomats were also spies (Thompson and Padover, 1937). But the factor of mutual convenience prevailed. It was diﬃcult to reject a new practice that would be all square with the principle of reciprocity. Some historians credit Nicodemus of Pontremoli (“Sweet Nicodemus”) as the ﬁrst permanent ambassador, since he held the post as Milan’s envoy in Florence, almost continuously, for twenty years, beginning in 1446 (Anderson, 1993). Others maintain that the world’s ﬁrst permanent embassy was the Venetian mission headed by Duke Francesco Sforza that was established in Genoa in 1455. Five years later, Eusebio Margiaria, Archdeacon of Vercelli, was assigned to a residential posting in Rome by the Duke of Savoy. Like the Byzantinians, the Italians had learned some of the smoother arts of diplomacy from their contacts in the East. The invention of permanent diplomacy, if not the Oriental style, soon spread to northern Europe, whose history in ad hoc diplomacy extended back to early feudal times (Numelin, 1950). Permanent diplomacy could not be maintained without an impressive bank of professional skills. The highly educated social elites of the Italian city-states possessed such skills, and the conﬁdence that they could deal eﬀectively with the larger world outside, to which their merchant families had been proﬁtably exposed. “Business men were delighted by the skills of the diplomat, the nimble anticipation of the next move on the chess board, the subtle gambit which could trip a stronger opponent, the

Universal Authority in Pre-modern History

conversion of an enemy into a partner against the same common rival, the snatching of victory from defeat by bluﬀ and persuasion and mutual dexterity. These qualities were surely more admirable than the brute valour of the condottiere. Diplomacy was for rulers; war for hired men” (Mattingly, 1966). The resident ambassador seems indeed to have been a product of Italian history. Eﬀorts to ﬁnd precedents elsewhere before the 1430’s have not been successful. There were no permanent envoys at the Holy See before the Avignon period. The use of “procurators” by England and Aragon in the late 13th and early 14th century may have come close to the “Venetian model”, but Mattingly and others have concluded that these appointments were not quite continuous or long-lasting, and their business was conﬁned to ecclesiastical matters. “Procurators” were often sent by wealthy traders or merchant gilds to a foreign ruler to seek a concession or settle a commercial dispute (Anderson, 1993). Admittedly, one might ask how long a diplomat must remain at his post before qualifying as “permanent”, but the rise of the modern ambassador seems to have occurred only in the late Middle Ages (Queller, 1967). Reluctance to credit Italy or Byzantium with the birthing of modern diplomacy is nowhere more evident than in the writings of Sir Harold Nicolson. A classicist to his manicured ﬁngertips, this distinguished British diplomat and scholar has rendered a severe judgment on this post-classical phenomenon, which he characterizes as a “recrudescence of diplomacy in its most unconstructive form ... the stimulant rather than the antidote to the greed and folly of mankind. Instead of cooperation, you had disintegration; instead of unity, disruption; instead of reason, you had astuteness; in the place of moral principles you had ingenuity. The Byzantine conception of diplomacy was directly transmitted to Venice, and from these fetid lagoons throughout the Italian peninsulas. Diplomacy in the Middle Ages had a predominantly Italian, and indeed Byzantine, ﬂavor. It is to this heredity that it owes, in modern Europe, so much of its disrepute” (Nicolson, 1963). Over three editions of his famous textbook, the author saw no need to temper his judgment. Nicolson is equally clear about the moral deﬁciencies of later, Renaissance and early modern, diplomats in Europe. “They bribed courtiers; they stimulated and ﬁnanced rebellions; they encouraged opposition parties; they intervened in the most subversive ways in the internal aﬀairs of the countries to which they were accredited; they lied, they spied, they stole”. He reminds us that Sir Henry Wotton’s famous deﬁnition of an ambassador – as “a man sent to lie abroad for his country’s good” – was intended in jest, but caused him to suﬀer at the hands of his humorless Scottish master, James I of England, who refused to engage him further. The introduction of permanent missions obviously created new opportunities for the development of bilateral treaty relations between the sending and receiving states, and thus for the application of emergent principles of international law. In the eye of posterity, however, the 15th century was still too early for such development. Yet it seems appropriate to conclude this summary of pre-modern diplomacy by noting the modernity of the Treaty of Tordesillas signed in 1494. The ﬁrst voyage of Christopher Columbus gave rise to conﬂicting Spanish and Portuguese claims to the newly discovered territories beyond the Atlantic. With an audacity that still astonishes, Pope Alexander VI assumed the role of mediator, dividing the immense region between

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the claimants along a line of demarcation from pole to pole, 100 leagues west of the Cape Verde Islands. The Spanish and Portuguese ambassadors met in the town of Tordesillas in north-eastern Spain to reaﬃrm the papal division, but, on the premise that the principle of negotiation should prevail in maritime boundary delimitation, took it upon themselves to adjust the line slightly further to the west. Spain acquired exclusive rights to the region on the western side of the line in return for accepting the Christian duty of converting the heathens waiting to be set on the road to righteousness. The Portuguese agreed to keep their expeditions to the east, but the linear adjustment would later enable them to claim the eastern parts of the South American continent as their Brazilian colony. In terms of land acquisition, the arbitrary settlement of Tordesillas was to endure for hundreds of years. As an experiment in early ocean boundary making, it overreached itself. Yet the role of the Holy See in mediation is still a useful option, when normal diplomacy fails. The Birth of Conference Diplomacy. The early 15th century was a period of acute political and spiritual crises in Western Europe. Secular imperial power had waned, eroding conﬁdence in the possibility of a transnational, transcultural order. Europe was also in spiritual disarray. No less than three factions had emerged within the Mother Church, each supporting its own pope: reformers such as John Hus (c. 13701415) and John Wycliﬀe (c. 1330-1384) had announced the establishment of breakaway sects. To arrest the process of spiritual dissolution, Jean de Gerson (1363-1429), chancellor of the University of Paris, proposed that a concerted eﬀort be made to convene an assembly of representatives of the whole Christian world to address these challenges. The result was the Council of Constance, which remained in session from 1414 to 1418 (Mayer, 1965). Nothing so ambitious had ever been attempted in Western history. The Emperor Sigismund (1368-1437), master of many realms, was persuaded to host this massive convergence of ecclesiasts, scholars, rulers, ambassadors, and merchants. The ecclesiasts alone included three patriarchs, 33 archbishops, 150 bishops, and 100 abbots. They were supported by 300 doctors of theology and canon law (Bozeman, 1960). The total number of participants may have been as high as 50,000 or higher, embracing even distinguished guests from the Orthodox Church of Eastern Europe. The Polish delegation included the jurist Paulus Vladimiri, who oﬀered an “unusually dispassionate” analysis of the “doctrine of coexistence” between Christian and non-Christian countries (Alexandrowicz, 1963). For over three years Constance was the “cynosure of all Europe”. All attending knew that this experiment in “conciliar” diplomacy was a complete departure from the synods of the past (Fink, 1965). In the end, all three papal claimants were rejected, and in 1417 Martin V was elected by the Council. In several ways, the Council of Constance succeeded in restoring a degree of unity in the Christian West. Hus and his disciple, Jerome of Prague (c. 1380-1416), were condemned to death for their unusually obstinate heresies, and the wayward legacy of John Wycliﬀe was once again denounced. It was also agreed that the discredited College of Cardinals could no longer be trusted to discharge its traditional duty of

Universal Authority in Pre-modern History

papal selection. The principal cause of resentment was the Italianization of the College and its staﬀ in Rome, which undermined the Holy See’s claim to serve the multinational, cross-cultural interests of Christendom. To solve this problem, it was agreed that six deputies of each of the ﬁve principal participating “nations” should join the College for the purpose of electing the pope: those blocs that “shared” the Italian, English, French, German and Spanish languages. Most of the ecclesiasts present did, of course, communicate with one another in Latin, the oﬃcial language of the Church, but because of the mix of spiritual and temporal representatives it was recognized that language was a legitimate division. The decision to recognize the “nation” as the primary unit of representation at Constance was inspired by a similar voting arrangement at the University of Paris. Although it is not clear whether the voting system established was based on unanimity or a two-thirds majority, the resort to national-bloc voting represents the beginning of “multi-national”, conference or “congressional”, diplomacy. As Bozeman notes, these ﬁve “nations” did not correspond exactly with the most powerful states of Europe. Germany and Italy would not jell as nation-states until the late 19th century. Indeed the “German nation” recognized at Constance included a number of Hungarians, Poles, Danes, Dutch, Swedes, and other peoples who did not normally discourse in German. The ﬁve-fold division at Constance was devised as a ﬁction to serve the overriding purpose of administrative convenience. It created the precedent for a system of “oﬃcial languages” that posterity has accepted as necessary to make multi-national diplomacy a practical reality. The squabble over the admissibility of English as a major language of conference diplomacy reminds us that we are still in the early 15th century! Reﬂections. It is diﬃcult to treat the history of diplomacy and treaty-making as truly distinct from that of international law (Toscano, 1966). Principles and pacts make up most of the “raw material” of the international jurist’s domain, all actually, or presumed to be, the product of state consent. Even today the “system” is still essentially an amalgam of accepted norms and negotiated instruments, and the diplomatic arena is where they fuse and assume an operational signiﬁcance. The Chinese imperial tradition of tributary relationships with neighboring states would prove unable to withstand external pressures in the 18th and 19th centuries. The Empire would have to discover a new kind of ﬂexibility to deal with much stronger powers from the distant West. By then the unfamiliar system of international law would be available to serve China as a shield of sorts against foreign assaults on Chinese sovereignty. As we shall see, it would take two centuries for the West to acknowledge the inequity of “unequal treaties” imposed on China under the conditions of coercive diplomacy, and then only with the greatest reluctance. In Europe especially, the infrastructure of permanent diplomacy created the possibility of moving toward a systematic management of international relations, and towards the injection of international law considerations into day-to-day operations of foreign policy. Even by 1500, before the jelling of the modern inter-state system, it was becoming clearer that professional diplomats, however tempted by the at-

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tractions of expediency, had already inherited a stock of international legal norms designed as a constraint on wilful state behavior. Despite the continuing chicanery associated with early modern diplomacy, these norms were falling into place as the foundation of routine inter-state relations. Final Reflections We should not expect the research community to bring the Dark Ages out of the shadows. It will remain an era of mystery. Newer theories will be advanced to challenge the old, but it will probably never be possible to demonstrate how the pre-medieval civilizations of Asia, Europe and the other continents contributed to universalist ideals. The temptation is to pass it by and depict world history as a progression from classical antiquity to the modern world by way of the Middle Ages. To do so is to reveal an admittedly Eurocentric bias (Tanaka, 2002). Yet the modern international system, which came into existence in the 16th century, did so in Europe, and it is very diﬃcult to account for that phenomenon without reference to the medieval context from which pre-modern Europe evolved. The period of the nation-state that was to succeed the Middle Ages was entirely distinct, and it would be that later stage of world history that cultivated most of the features of world order with which we are familiar today. But especially in the West, images of the feudal, Gothic past have invaded our modern imagination. Since the early 19th century, many leaders of literary fashion have re-created our medieval past: from Cervantes, Edmund Spenser, Sir Walter Scott, Victor Hugo, the Pre-Raphaelites, Thomas Hardy, and Mark Twain to numerous novelists of the 20th century. We seem to hear the Middle Ages in the stirring and imaginative music of Richard Wagner (Utz and Shippey, 1998). Some contemporary scholars even go so far as to suggest that the origins of Western thought lie more clearly in the Middle Ages than in the Judeo-Christian or Greco-Roman tradition (Colish, 1998). Because of the apparent linkage between world law and the still-continuing system of nation-states, it is worth pausing to reﬂect on the re-discovered relevance of the medieval period of world (or Western) history. In recent decades, theorists in the ﬁeld of international relations have taken a special interest in the concept of neo-medievalism. What appears to be an erosion of the inter-state system, and of the bedrock principle of state sovereignty, has suggested to some that we might be moving into an alternative system of order with certain features reminiscent of the Middle Ages. The medieval analogy was examined but found wanting as early as the 1970’s by writers such as Hedley Bull (1977). For the analogy to survive, Bull argued, the “new medievalism” would have to show a pattern of “overlapping authorities” and “multiple loyalties”. The original medieval system was one in which “no ruler or state was sovereign in the sense of being supreme over a given territory and a given segment of the Christian population; each had to share authority with vassals beneath and with the a Pope and (in Germany and Italy) the Holy Roman Emperor above ... All authority in medieval Christendom was thought to derive ultimately from god and the political system was basically theocratic”(Friedrichs, 2004). In the 1970’s, it appeared

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that the secularization of Western society was too rapid to permit a return to a quasimedieval system of world order, especially in Europe where the medieval heritage of religiosity had become abandoned. Since the 1970’s, however, a new generation of writers have detected a number of other, non-religious, neo-medieval features in the contemporary international system. For example, Tanaka (2002) envisages the arrival of a “New Middle Ages” characterized by a multiplicity of actors and a high degree of ideological uniformity. On the one hand, authority is shared increasingly between a worldwide community of almost 200 nominally sovereign states, and a proliferation of increasingly inﬂuential non-state institutions. On the other hand, there is discernible convergence of majority values around the ethic of liberal democracy. Friedrichs (2004) suggests that we might see an instructive analogy between the Catholic clergy of the European Middle Ages and the managerial class of the contemporary corporate sector. “The medieval clergy was split by a permanent struggle of theological orthodoxy against manifold forms of heresy; in a similar vein, the econocrats of the late twentieth century are united by the orthodoxy of (neo) liberal laissez faire, although there are incorrigible heretic sects like isolationists or interventionists. There is excommunication from ﬁnancial markets for stubborn states just as there was excommunication from Christendom for reluctant secular rulers in the Middle Ages. There is a contest between the world market economy and the nationstate system for supremacy in the international sphere, just as there was a contest for supremacy between the Church and the Empire in the Middle Ages”. As claimant to the status of chief provider of human welfare, the transnational managerial class of today’s world might also be likened to the clergy of medieval Europe. Some contemporary observers ﬁnd the medieval analogy even more disturbingly apt. Alain Minc (1993) interprets the Middle Ages as a synonym for disorder, as a time when the world lacked a center of moral gravity. For Robert Kaplan (1994), writing before the worst of global terrorism, has envisaged the arrival of worldwide anarchy. But these prophets of moral decline may be underestimating the degree of cohesiveness in medieval society. Many historians see stability, rather than instability, in the competition between temporal and spiritual universalism in the Middle Ages: between imperium and sacerdotium. The present transnational market economy is, admittedly, based on an intensely competitive ethos, but it is also the object of an unprecedented, world-wide, inter-state, cooperative eﬀort to subject it to regulation. By this reasoning, “true universalism” might be emerging at least in the economic sector of the contemporary world order through the establishment of neutral, mediatory mechanisms that draw upon the objective and humanistic elements of world civilization (Kuczynski, 1992). Most legalists object to the medieval analogy. The principal academic history of “European international law” insists that the medieval world had neither “states” nor an “inter-state system” in the modern sense (Grewe, 2000). After 1300 or thereabouts, however, the feudal bond that formed the pivot of government and the administration of justice in Western Europe began to loosen: rulers “came to rely on the services of paid functionaries rather than on the personal fealty of their vassals” (Mitteis, 1975). Something resembling the modern state began to appear in embry-

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onic form. In comparative perspective, it might be possible to distinguish various “models”, as well as “systems”, of international law framed around diﬀerent state-like forms of government (Schwarzenberger, 1980). Not all German scholars have resisted envelopment in the folds of semantics (Keutgen, 1918, 1963). Some, for example, suggest a distinction between states in the sense of international law and states in the wider sense of public law (Verzijl, vol. I, 1968). Words such as “state” and “sovereign” can be stretched beyond their current, not so-precise, deﬁnitions. Moreover, “systems” can be found at diﬀerent levels of social organization. It was an English jurist in the 1920’s who suggested a ﬁve-fold classiﬁcation of early forms of international interaction: tribes, cities, churches, contractual societies, and collective organizations (Vinogradoﬀ, 1923). If we lean only lightly on deﬁnitions, can we ﬁnd the emergence in the Middle Ages of a “system of international law” of some rudimentary kind? In the German literature there has always been fascination with the polities (Gemeinwesen) that made up the Holy Roman Empire: more-or-less autonomous principalities that, in theory, owed an allegiance to the Emperor and a common source of legitimacy (Brunner, 1956). Some legal scholars, however, concede it is more useful to look for the origins of transnationalism in non-political phenomena such as the medieval gild system and the semi-formal, public-private, Hanseatic League (Reibstein, 1956). Others trace the origin of international legal order to the wholly private merchant community (Trakman, 1983). Indeed transnational norms of a non-juridical sort can be discerned in the knightly ethos of chivalry. Most lawyers, however, are likely to agree that these experiments in transnationalism lacked most, or probably all, of what modern positivists would regard as the pre-requisites of a legal system. The medieval world merely provided its own antecedents to the later, much larger, phenomenon of universalism. Of the twelve models of international law identiﬁed in Chapter Two, six might be said to have taken root, but not yet ﬂourished, in pre-modern history. By the end of that era, the concept of state autonomy was just beginning to evolve as an alternative to central, imperial or religious, authority. The new prevalence of nationalist loyalties and sentiments raised the prospect of a collateral system of more-or-less equal nation-states, whose pride of sovereignty would not tolerate external intervention. The danger of anarchy inherent in such a system of sovereign entities was not yet widely felt in 1500. Yet in China the rewards of having order through a strong, stable regime of central authority were understood by all familiar with the record of uprisings. In the West, especially Western Europe, it was being discovered by 1500 that there was a natural “rightness” or legitimacy about the emergence of political and legal order at the national level, between the localist and imperialist extremes. Disorder among independent states would have to be managed and reduced through the instruments and norms of professional diplomacy. Trade continued to be the chief purpose for international intercourse, but in the pre-modern world the emerging national governments had not yet seen the need to develop a cooperative regulatory ethic in the commercial sector. Merchants had demonstrated their ability to look after their own aﬀairs, not least through gilds and alliances with commercial towns. The danger of international chaos, due to the lack

Universal Authority in Pre-modern History

of regulatory regimes, would not become apparent until a much later stage of technological development. No one in the pre-modern world could imagine a world in which a system of international norms could be devoted to war prevention. Yet the Graeco-Roman concept of just war was revived and reﬁned in medieval Europe. Marginally, improvements in the management of warfare seemed attainable within the non-statist code of chivalry. Pre-modern idealists tried to keep the ancient faith in the possibility of a more benevolent mode of civic order. Concern for the welfare of the sick and wounded in times of war surfaced at the beginning of the Crusades. Religious scholars and secular ethicists held out a vision of oﬃcial responsibility for the treatment of the poor, and other innocent victims of disordered societies. But it was much too early for the concept of the welfare state or an ethic of human rights. Finally, the idea of a transnational convergence of laws was a genuine creation of the pre-modern world in the context of commercial and maritime aﬀairs, despite the scattering of codiﬁcation initiatives in classical antiquity. From a strictly legalistic perspective, the codiﬁcation initiatives of feudal Europe, and the evolution of principles common to the canon law and civil law domains, might be regarded as the ﬁrst written evidence of a trend to transnational legal development that would distinguish the modern era.

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Part Three Into Clear View

6 Shaping of the Modern World (1492-1645)

It is customary to date the beginning of modern world history from the discovery of the New World in 1492. But it is easy to quarrel with this familiar example of periodization. The history of world exploration began much earlier than the lifetime of Christopher Columbus (1451-1506), even though the earliest expeditions across the seas did not result in permanent settlement. Moreover, the birthing of the modern world is associated with other events of comparable magnitude. Few would dispute the importance of the invention of printing in the 1440s by Johann Gutenberg (c. 1398-1468). Equally seminal were the challenges to traditional thinking and feeling associated with the Italian Renaissance of the 14th and 15th centuries, which created the intellectual and emotional divide between the medieval and modern worlds of Western civilization. Identifying modernism with the freedom to express dissent from theological orthodoxy and scientiﬁc dogma, we might prefer to date the beginning of the modern world from the appearance of the ﬁrst successful dissenters, such as Martin Luther (1483-1546) or Nicolaus Copernicus (1473-1543). However we choose to focus on great events or ﬁgures of history, we might agree that the modern rate of acceleration in human aﬀairs can be attributed above all to our ancestors of the 16th century. In the middle of the 15th century no one had any sense that humanity was about to inherit an expanding universe. Yet we know now that at that time human development was but one step away from its most dramatic leap. Especially in the West, the human spirit would soon be emboldened, generating energies that had not been seen before. For better and for worse, the age of Western adventure and ascendancy was about to unfold. It is even more diﬃcult to determine the end of that age. In some sense, the story of Western ascendancy continues as a dominant motif of world history. Since history is an accumulation of thoughts and actions, the early modern era that began with great adventures might be said to have ended with the career of Hugo Grotius (1585-1645), the great synthesist of early modern ideas. After Grotius, international law can no longer be described in primitive terms. Thereafter, the “Grotian tradition” takes hold, at least until a new concept of modernism emerges in the geopolitics of the early 19th century.

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The Age of Exploration Questions. International law, as we know it today, is a universal system of norms and institutions. In the East, the ideal of universal authority by the 15th century had long since pivoted on the theory of sole legitimacy attached to the Chinese Son of Heaven. Did the re-establishment of imperial order under the Ming merely restore the traditional, ethnocentric world framing the sophisticated culture of the Han people? Or was that great civilization about to reach out to discover and capture a larger universe, far beyond the familiar territories of neighboring rulers seen to owe allegiance to the Son of Heaven through tribute to the Middle Kingdom? Was China on the brink of world discovery? In the West, would the energy behind the phenomenon of world discovery generate new ideals of world order? What kind of legacy was the West about to impose on newly discovered continents? What factors would motivate Western exploration and conquest in Africa and the Americas? Would the “Ascent of the West” be inﬂuenced at all by the ideal of civic benevolence? Early Maritime Explorations. The ascent of the West in world history owes much to the discoveries of the great European navigators of the 15th and 16th centuries, but it is important not to underestimate the achievements of earlier, non-Western explorers. It can never be certain who should be credited as the ﬁrst explorers beyond sight of land. Unknown persons in frail craft might have ventured far without compass or other navigational aids. Archaeological evidence suggests that the seafarers of primitive antiquity stayed close to shore. Similar prudence was apparently displayed by the navigators of ancient China, given the limitations of primitive maritime technology. Before our ancestors’ conception of the physical world could be enlarged, it would be necessary to overcome the tyranny of the human imagination. As suggested by Boorstin (1983), the “great obstacle to discovering the shape of the earth, the continents, and the ocean was not ignorance but the illusion of knowledge. Imagination drew in bold strokes, instantly serving hopes and fears, while knowledge advanced by slow increments and contradictory witnesses.” Those who could agree on very little about remote regions of the world “somehow agreed on the geography of the afterworld. Even while the shape of most of the earth’s surface was still unknown, the Nether World was described in vivid detail.” Claims have been made that early Chinese sailors explored extensive ocean areas, seeking in vain for other civilizations of comparable worth. The Chinese were certainly equipped and organized to go out and discover the world by sea, but it is not established that they did so before the 15th century. The Vikings, on the other hand, clearly introduced an era of seafaring that had no precedent in the Western experience. Their discoveries were made between the 8th and 11th centuries, at a time when the rest of Europe was still a medley of unventuresome cultures. By then the Muslim Empire had reached its geographical limits. Within Western Europe movements by merchants and pilgrims were still mostly overland. By 700 A.D. the Norsemen had found the Faroes, north of Scotland, and the settlement of Iceland was begun after its discovery in 770. Like other remote colo-

Shaping of the Modern World (1492-1645)

nies, Iceland proved to be a convenient dumping ground for ungovernable subjects of authority, such as Thorvald and his family. None was less governable than his son, Eric (“the Red”) Thorvaldsson, whose red-tempered killing sprees earned him further banishment for three years to the furthest outpost in the North, like his father before him. Like irascible mountaineers who are companionable only at exalted heights, Eric seems to have been better ﬁtted for life at sea. Sailing beyond the expectations of the authorities, he came upon Greenland in the early 980s, naming it more optimistically than later exploration would justify. Norse seafarers made a more dramatic contribution to world exploration in 1000, when Lief (“the Lucky”) Ericsson, the middle of Eric’s three sons, discovered the Western Hemisphere by accident. Storms driving him westward brought him to Newfoundland. Despite the bounty of grapes and wild wheat found in Vinland, the Norse settlement there seems to have lasted only a couple or so of generations, for reasons not clear to the people of Newfoundland today. Equally impressive is the history of Polynesian exploration and settlement in the South Paciﬁc. Perhaps as early as 1200 B.C. a group of seafarers from the Bismarck Archipelago, north of New Guinea, had discovered some of the islands to the east. By 500 A.D. the process of Polynesian colonization was mostly completed, although the last islands may not have been occupied until 1000 A.D., about the time of Lief ’s happening upon Vinland. The rest of the story was a remarkable experiment in human adaptation (Diamond, 1999). The Cheng Ho Mystery. The most illustrious of distant ocean expeditions in early modern times were the seven voyages of Cheng Ho (Zheng He) in the early 15th century. This famous navigator was a Muslim of low birth from the province of Yunnan. He was fortunate to live in an age when the Emperors chose to surround themselves with trusted eunuchs, often childhood companions but also able men, usually of modest social origin, rather than powerful oﬃcials of mandarin rank. This policy of dependence on palace-based eunuch advisers can be traced back at least to the Han period (Anderson, 1990), but it was revived in the circumstances of the early Ming dynasty by its remarkable founder, Chu Yuan-chang (Zhu Yuanzhang) (1328-1398) – otherwise known as Hung Wu (Hong-wu), and posthumously as T’ai Tsu) (10691123) (Reischauer and Fairbank, 1958). Chu Yuan-chang was proud of his own peasant origins and of his early years in a Buddhist monastery (Boorstin, 1983). He saw no reason to exclude from public service men of merit who lacked the gloss of a Confucianist upbringing. Such gloss had not saved the Empire from overthrow by the Mongols in the early 13th century. It was a man of strength rather than reﬁnement who had restored the Empire to the Han people. The ambitious course that he set for the new regime would require the services of exceptional and loyal subjects. It was one of Chu Yuan-chang’s grandsons, and his eventual successor, Yunglo (“Perpetual Happiness”) – otherwise known as Chu Ti (Zhu Di) and Ch’eng-tsu (1360-1424) – who undertook to dispatch naval expeditions “with messages of his grandeur into all the surrounding seas”. His major strategic purpose was to extend the traditional tributary system of China into South and Southeast Asia: to nan-yang,

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the “Southern Ocean”. His faithful eunuch adviser Cheng Ho was entrusted with the leadership of the audacious project. The ﬁrst expedition was outﬁtted in 1405 and six others followed (in 1407, 1409, 1413, 1419, 1421, and 1433) under the policy of expansion continued by his successors. The ﬁrst, second and third voyages of Cheng Ho reached India, but the fourth, ﬁfth and sixth went as far as Aden and the Persian Gulf. The ﬁnal expedition explored the east coast of Africa, and a few of these adventurers seem to have reached Mecca. As Reischauer and Fairbank (1958) observe, the world had never seen such largescale feats of seamanship. These formidable Chinese armadas repeatedly sailed across the Indian Ocean almost a century before the Portuguese in 1498 reached India by sailing around Africa. These ﬂeets of several hundred vessels, carrying perhaps as many as 37,000 men in the last two expeditions, sailed under detailed navigational directions developed in China over many generations, using the compass and favorable winds. They brought back great wealth and much knowledge about the outside world. In return, missions from Hormuz and the African coast visited China four times, and from Bengal eleven times. Scholars interpret Cheng Ho’s great voyages as “an expression of the exuberance of an era of great vitality.” For the eunuch leaders, the expeditions brought adventure, fame and presumably proﬁt. It has been speculated that the ambition of the early Ming Emperors turned on the prospect of bringing “all the known world within the Chinese tributary scheme of things”. Despite his asexual status, Cheng Ho was reputedly a man of unusual physical and moral strength, matched with a robust personality. He had served the Emperor Yung-lo as a soldier in the battles that brought that warrior to the throne, which had been denied him by his grandfather. Not much more is known about the life of this monumental ﬁgure in world history. His voyages cost enormous sums to mount, rendering him vulnerable to charges of unjustiﬁable extravagance within the strongly anti-commercial cultural tradition of Ming China. No doubt his enemies in the mandarinate resented the glory earned by this eunuch upstart, and presumably envious rivals among his fellow eunuchs back home had ample opportunity in his absence to discredit his achievements. In the eye of world history, smaller men prevailed. Shipbuilding was banned as an unworthy enterprise; priority was given instead to the development of agriculture; and the records of his voyages were put to the torch. The absence of a clear record has given rise to massive speculation about these remarkable expeditions. The latest study (Menzies, 2003) has compiled voluminous evidence suggesting that the sixth expedition, which set sail in 1421, circumnavigated the globe, taking the best advantage of the most prodigious armada ever assembled. This armada consisted of ﬁve great ﬂeets under the command of the Grand Eunuchs Yung Ch’ing (Yung Qing) and Hang Pao (Hang Bao), Eunuch Tsou Man (Zhou Man) and Admiral Tsou Wen (Zhou Wen). A highly diverse assortment of evidence has been put forward by Menzies in support of the argument that several ships of Tsou Man’s ﬂeet reached Australasia, the Barrier Reef, the Spice Islands, the west coast of North America, Mexico, Florida, and much of South and Central America. DNA data may show that the Chinese not only traded with local peoples in Central America but set up colonies in that region.

Shaping of the Modern World (1492-1645)

Admiral Hang Pao’s assignment was to explore farther southward. It appears that his ﬂeet reached the Falklands and Patagonia, and sailed through the strait that would later bear Magellan’s name. Early maps suggest the Chinese sighted the Antarctic landmass. Research on many fronts has also led Menzies to the conclusion that the voyage of Tsou Wen made contact with the Cape Verde Islands oﬀ the west coast of Africa, the Caribbean, Florida, and northward up the Atlantic coast of North America. His claims include the suggestion that the Chinese settled in various areas such as the coastline of Rhode Island and erected structures such as the Newport Round Tower, which was previously attributed to the Norsemen of an earlier era. Even more startling is the possibility that ships of Tsou Wen’s ﬂeet circumnavigated Greenland, and may even have reached Ellesmere, for the practical purpose of ﬁxing the absolute position of the North Pole, in accordance with the Emperor’s ambitious edict. This remarkable study has been variously received in the academic research community. Many scholars in China subscribe to the hypothesis of China’s world discovery. Most outside are extremely dubious. Many others have challenged Columbus’ claim to primacy in the discovery of America (Sertina, 1976). Perhaps we should keep our minds open. But what if Yung-lo’s successors had refused to yield to their Confucian advisers and ﬁscal conservatives? What kind of world might have emerged from a continuing Chinese commitment to a policy of world discovery? Cook (2001) suggests that it is “hard to envision the Roman Catholic Church accepting Chinese ﬂeets as anything but one more instrument of the Devil sent to torment Christendom”. But who could have prevented the deployment of such enormous armadas? Fifteenth century Europe was unlikely to respond with another Crusade. Continuing Chinese exploration would surely have changed things. “Might not the worst horrors of the Atlantic slave trade been aborted by a halt to Portuguese expansion along the African coast at this early date?” In truth, the Chinese under commanders such as Cheng Ho had inﬁnitely more capacity to discover the New World than the tiny ﬂeets of Christopher Columbus and his European successors. If the Chinese did in fact set up American colonies and had chosen to remain there, would this have forestalled Pope Alexander’s partition of the western seas under the Treaty of Tordesillas? Would the Spanish have acquired an opportunity to carry through their strategy of slaughter and conversion in the new World? Western Expeditions. However, it is a fact of non-virtual history that it fell to the Portuguese and the Spanish to lead the way. As we have seen in Chapter Five, Marco Polo’s remarkable accounts of his encounters with Chinese civilization caused a sensation as a source of entertainment. His famous Travels evoked admiration as a literary work, but scholars and cartographers were reluctant to accept his vivid descriptions of the East as accurate. Even if Marco’s journal did not directly challenge the scriptures of Christianity, it was put aside by those in the thrall of the great classical geographers such as Strabo of Amasya, the Greek geographer and historian of the 1st century B.C., and Claudius Ptolemaeus (Ptolemy), the Greek astronomer and mathematician of the 2nd century A.D. (Larner, 1999).

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As the early travelers between East and West died oﬀ in the 15th century, contacts between these two worlds diminished. Yet it appears that no one in that era followed Amelio Bonaguise’s explicit renunciation of Marco’s Travels in 1392. Rather the famous work was ignored by the makers of world maps (mappamundi), who perpetuated many of the errors of the classical scholars. The ﬁrst maps clearly inﬂuenced by the Travels are those in the Catalan Atlas of 1380, which was drawn up for King Peter IV of Aragon by Abraham Cresques (“Cresques le Juif ”), an instrument-maker on the island of Majorca. It seems clear that Cresques’ atlas was based in part on Marco Polo’s Description of the World. The 15th century was also the age of the early humanists, who were committed to the search for empirical knowledge. Their challenge to authority, both spiritual and temporal, was to be the deﬁning feature of early modern intellectual history. Admittedly, the great works of Greek and Roman antiquity were themselves in danger of becoming objects of a diﬀerent kind of veneration, but they too would eventually be required to meet more rigorous tests demanded by open minds. By the end of the15th century, scholars would have no choice but to displace the geography of their imagination with more accurate information based on the discoveries and observations of the new explorers. The burning of Cheng Ho’s journals ensured that world exploration would be depicted as a wholly Western endeavor. Credit for the remarkable Age of Discovery must be shared among several Europeans of unusual ambition and curiosity. For example, the kings of Aragon of the early 15th century deserve recognition for acquiring the services of several highly skilful Jewish cartographers such as Cresques, apparently as a reward for their short-lived policy of racial tolerance. When the Aragon elite returned to its earlier policy of Jewish persecution, Abraham Cresques’ son Jehuda emigrated to Portugal at the invitation of the king’s brother, Prince Henry (“the Navigator”) (1394-1460). Henry was the most eager of several European princes ﬁxed on the notion of becoming promoter of ambitious overseas adventures. All were infused with the spirit of missionary zeal, and the prospect of commercial gain and the capture of treasure (Roberts, 1995). Ptolemy’s quantitative spirit stimulated a quest for precision that would later result in the establishment of measurable latitude, and then of longitude. The new, neo-Ptolemian, work encouraged by Henry the Navigator involved repudiation of the Christian map-makers of the Middle Ages, who depicted the habitable world as surrounded by the Ocean Sea, the precinct of Paradise that “no living man should or could reach” (Boorstin, 1983). By the late 15th century there was no lack of European mariners willing to risk the temptations of Paradise. Facing outwards, “away from the classic centers of European civilization, westward toward the unfathomed ocean,” Portugal may seem an obvious nation to produce the ﬁrst of the great ocean pioneers. But unlike Columbus, who would later sail westward through partly known waters, the Portuguese entertained an even braver goal of venturing into wholly unknown seas beyond the African equator. They accepted possible encounters with ocean-dwelling monsters and demons that had tormented the medieval imagination of the Christianized West, and the risk of mutiny by terriﬁed mariners.

Shaping of the Modern World (1492-1645)

By the time of Prince Henry, the Atlantic islands to the southwest – the Azores, Madeiras and Canaries – had already been discovered by the Genoese. Yet it seems that Prince Henry, unlike his descendants, was genuinely more interested in discovery than colonization. His master mariners in the 1420s and 1430s were instructed to keep accurate logs and charts and to bring back detailed information as a reliable guide for succeeding expeditions down the west coast of Africa. Eventually, in 1434, one of his captains, Gil Eannes, found the special courage to sail past the dreaded Cape Bojador (“Bulging Cape”), just south of the Canaries. Each year, each expedition thereafter sailed a little further south, displaying a degree of caution that would surely have been scorned by Cheng Ho, whose fearless example in the Indian Ocean was still unknown in the West. In 1445 Dines Dias sailed round Cape Verde, in present-day Senegal. Twelve years later, the Cape Verde Islands to the west were discovered by the Venetian captain Alvise da Cadamosto, sailing for Henry, like so many other Italian mariners such as Columbus, Vespucci and the Cabots, who were later to serve foreign patrons. By Prince Henry’s death in 1460, much of West Africa’s coastline, and some of its rivers, had been explored by the Portuguese. Thereafter, the inexorable expeditions farther southward continued under King Alfonso V, Prince Henry’s nephew. These annual forays were, however, kept secret in fear of unwanted commercial competition, for it had now become obvious to Alfonso that Africa oﬀered fabulous new revenues for his personal treasury. With the accession of Alfonso’s son, John II, in 1481, a bolder and more acquisitive age of Portuguese exploration opened up. Soon ﬂeets of small sturdy vessels (caravels), ﬁtted with lateen sails, would be available to European merchants, who would earn the condemnation of later ages as the most ruthless proﬁteers of the African slave trade (Thomas, 1997). One of the Portuguese traders who had taken a caravel down the African coast was Bartolomeu Dias de Novais (c. 1450-1500). It was to him that King John turned to command a carefully organized and ambitiously mounted expedition in 1487. This voyage was designed to range further than any previous Portuguese expedition. The ﬂeet was augmented with a supply ship – a feature that must have seemed obvious to Cheng Ho several decades earlier. Nature proved once again to be an agent of world discovery. A storm blew up, driving the Portuguese ﬂeet farther south, to the terror of the crew, who gave themselves up for dead. Steering calmly east after the storm, Dias was ﬁnally rewarded, in February 1488, with the sight of a mountain range. He was in what would later become known as Mossel Bay, between Cape Town and Port Elizabeth, where tourists on the Garden Route today visit the ostrich farm at nearby Oudtshoorn. Dias and his men had rounded the Cape of Good Hope, and introduced Europe to the coast of Southeast Africa, half-way to India. But like the generals of the great Alexander of antiquity, the captains of Dias insisted on returning home, and the reluctant commander was compelled to follow the course of discretion. The brave Dias, safely returned in triumph, was never rewarded by his sovereign. Yet he had turned an important corner in the history of world discovery. One of those waiting in the crowd to greet Dias on his return was an entrepreneurial Genoese captain, Christopher Columbus (1451-1506). Like other ambitious

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mariners of this newly venturesome age, Columbus was anxious to press his navigational services on a wealthy patron in the mold of Prince Henry, endowed with curiosity, commercial ambition or a sense of Christian mission. Columbus was familiar, like Dias, with the caravel route down the West African coast, but he was obsessed with Marco Polo’s Travels and the lure of the east. Trusting to Ptolemy’s calculations and the modern theory of roundness, he was convinced that he could ﬁnd a shorter way to India, the land of spices, by sailing westward rather than by circuitous voyage around Africa or trudging overland in endless caravan to the east. Dias’ success was impressive to Columbus, but the storms encountered by the Portuguese were found more instructive. In his seafarer’s bones, the Genoese knew there had to be a better way. We are all familiar with the story of Columbus’ persistence and his eventual success in acquiring the patronage of King Ferdinand of Castile and Queen Isabella of Aragon. Like Dias, Columbus was only modestly equipped. Of his three caravels, the Nina, the Pinta, and the Santa Maria, the ﬁrst two were provided for with a ﬁne imposed on the town of Palos (Bowle, 1977). The famous expedition began in early September 1492. It proved to be a surprisingly easy voyage. After ﬁve weeks of uneventful sailing westward, drama took hold. At 2:00 a.m. on the 12th of October, Rodrigo de Triana on the Pinta “saw something like a white sandcliﬀ gleaming on the western horizon, then another, and a dark line of land connecting them” (Morrison, 1942). It was the coral island of Guadahari in the Bahama. With the arrival of dawn, the ﬂeet entered a calm bay, and Columbus went ashore to meet the surprisingly light-colored residents and to bestow the name of San Salvador on their land (Bowle, 1977). In the years that followed, Columbus refused to recognize that he had found a new world. Asia still beckoned. Two further expeditions followed, essentially in the wake of his ﬁrst. Nothing he encountered altered his conviction that he had landed in Asia. With a medieval inﬂexibility, the founder of the modern world remained “stubbornly and obstinately, to the end of his life, absolutely and completely wrong” (Morrison, 1942). Many historians have felt uncomfortable with the unexplained parts of the Columbus story. Perhaps he needs to be reimagined (Bradley, 1991). Shortly after Columbus’ return from his ﬁrst voyage, the 26-year old King Manuel inherited the throne of Portugal. He was nicknamed “The Fortunate”, because he was heir to a great tradition of grand enterprises. Despite the inevitable advice of cautious counselors, Manuel opted for a continuation of past adventures and ordered preparations for a major expedition to the south, down the African coastline. To lead this voyage he chose the son of a minor oﬃcial, who had already proven his skills in seamanship and in navigating the storms of Iberian diplomacy. Vasco da Gama (c. 1460-1524) was well qualiﬁed for the task assigned: the discovery of a sea-route to India for the opening of trade, and, if necessary, for discharging the duty of Christian conquest. In the words of Boorstin (1983), Gama, though “ruthless and of violent temper”, would show “the courage, the ﬁrmness, and the broad vision required for dealing with humble seamen and arrogant sultans”. After two years of preparation for Asia, Gama’s ﬂeet of four vessels sailed out of Lisbon harbor in July 1497. It was provisioned for three years and supplied with a

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crew of 170 that included “the customary number of convicts who, being considered expendable, could be used whenever there was mortal risk” (Boorstin, 1983). He chose to tempt fate by declining to hug the African coast, navigating “against opposite currents and contrary winds”, through the mid-Atlantic to the Cape of Good Hope. His ﬂeet remained at sea for 93 days, almost three times longer than Columbus. Extraordinary seamanship carried the Portuguese safely across the Arabian Sea and the Indian Ocean until they reached Calcutta, his intended destination, in May 1498. All but the most insistent admirers of Cheng Ho might agree with Boorstin (1983) that until then there had been no greater seafaring achievement, East or West. Gama was called upon, in the months that followed, to exercise his diplomatic skills. The Samuri of Calicut found it hard to excuse Gama’s failure to bring expensive gifts. Despite the insult, the commander and his ﬂeet were allowed to leave in August 1498. After numerous trials and delays, two vessels of the ﬂeet, carrying the 55 survivors, returned to Lisbon one year later, only months before the dawn of the 16th century. The ugly shape of things to come was made immediately visible on the occasion of Vasco da Gama’s second voyage. Accompanied by a naval squadron, it was equipped to dispense with diplomatic courtesies. Stealing, burning, killing and mutilating were visited upon those encountered between Malabar and Calicut. The Portuguese now ruled the Indian Ocean. The Ascent of the West had begun. The New Convergence of Cultures. The discovered world of the early 16th century consisted, then, of four continents: Europe, Asia, Africa, and America (though the separate identity of the last was not yet fully understood). The New World was exactly that, as far as the international community of the early modern era was concerned, but Africa was the oldest of all worlds. Human development began there. In the paleolithic period, the Sahara was apparently fertile enough to sustain a signiﬁcant population. According to legend, there had been North African travel to the north and east of the Mediterranean. North Africa was perhaps never a “dark continent”, though its residents may have seemed exotic to other cultures (Bowle, 1977). By 1500 A.D. the Berber Maghrib was totally Islamic, and its cultural and religious inﬂuence had spread deeply into the sub-Saharan region of the continent. Even as early as the end of the 8th century, the Old Ghana empire was reputedly ruled by an aristocracy of black Muslim knights. The facts of early African history are hard to establish. On the other hand, it is clear that in East Africa an Arab trade with the coastal communities had been established for centuries in the pre-modern era, linking the region with the Red Sea, India and Indonesia. More curiously, that region included an advanced, literate Christian people in Abyssinia (now Ethiopia), the only Christian society in “pre-contact” Africa outside Egypt. It is believed by many Abyssinians that they are Semitic descendants of the Habash tribe that crossed the Red Sea in the 1st millennium B.C. In the 4th century A.D. they were converted to Christianity by Copts from Egypt, still in contact with the classical Mediterranean world before the spread of Islam in North Africa created an impenetrable barrier between them and Eurasia (Roberts, 1995).

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Further to the south, it is diﬃcult to trace pre-modern contact between the Bantuspeaking tribes and cultures beyond the continent. Most of Central Africa remained in a hunting-gathering mode that prevented development in the modern sense. Today the “great stones” (Zimbabwe) of East Africa mark the site of the great Bantu empire that ﬂourished in the 11th and 12th centuries (Bowle, 1977). Encouraged by a policy of expansionism, Bantu-speaking pastoralists migrated steadily from north to south, putting pressure on the thin resources of the Bushmen and Hottentots of the Kalahari and the Cape, the ancestors of the Khoisan people of modern times (Thompson, 2000). All these and other tribes made up a continent of spectacular diversity. Of the four continents known to the international community of the 16th century, America was, of course, the newest discovery. There the pattern of exploration and occupation was to prove exceptionally swift, though many large areas of the continent were to remain untouched by Hispanic civilization until the 19th century. Like pre-Gaman Africa, pre-Columbian America was the home of highly diverse cultures, evolving at diﬀerent levels of social, economic and political organization. Around 1500 A.D. they had regular interaction with their neighbors, but only occasional contact with other nations; and none at all with the world outside (Fernandez-Armesto, 2003). There were three main systems of pre-Columbian American civilization: the Mayan in Guatemala, Honduras and (later), Yucatan; the Toltec and ultimately the Aztec in the Valley of Mexico; and the Incan in Peru. None of these peoples used iron; “none invented the wheel; they had no cattle, pigs or sheep; their only beast of burden, and that only in South America, was the llama. In general, it was man. On the other hand, they had maize, beans, gourds, squashes, tomatoes and tobacco; and, in the Peruvian highlands, potatoes” (Bowle, 1977). For some reason, the development of maize (Indian corn) eclipsed that of potatoes (Fernandez-Armesto, 2003). Their preference for corn over alternative foods seems to have resulted in bodies ridden with diseases and deadly infections (Diamond, 1999). The Mayans, drawing upon the heritage of the earlier Olmecs, developed an impressively civilized culture, which reached its highest point when Europe was stumbling through its Dark Ages. In some ways, their achievements might be compared with the advances in India under the Guptas and in China under the T’ang. By that time their culture had spread from Guatemala throughout Central America and northward to the Yucatan peninsula and Central Mexico. They were ruled by a literate elite fortiﬁed by privileged access to the gods, but the Mayan religion was relatively harmless. Their society seems to have been overtaken by a combination of environmental and political disasters. By the 11th century, the Mayan culture, including its famous writing system and calendars, had begun to rot away in the encroaching grasslands. When the Spanish arrived, they found a culture in decline. At its center, Yucatan was divided into a dozen independent warring states. Earlier, at the beginning of the Mayan decline, a nomadic tribe from the north, the Toltecs, had descended on Central Mexico to establish a warrior culture. The Toltec war machine prospered from the 10th to the 13th century, when it captured several of the Mayan cities, including Chichen Itza, the greatest of them. The Toltecs had some ferocious practices, scarcely improved by their elegant costumes and shields, their

Shaping of the Modern World (1492-1645)

towering temples, their powerful toxicants and languorous steam baths. A softening of martial ﬁber may have contributed to their demise at the hands of the even more ferocious Aztecs in the 14th century. When the Spaniards arrived, their ﬁrst encounter was with the Aztecs (otherwise known as Tenochka and Mexica), who had built the magniﬁcent city of Tenochtitlan, on a group of connected islands on Lake Texcoco. Historians have been reluctant to credit the Aztecs with any worthwhile achievement. Their skills, we are told, were in engineering, not design. “Not a single important invention or innovation of Mexican culture can conﬁdently be assigned to the post-Toltec period. The Aztecs controlled, developed and exploited the civilization that they found” (Roberts, 1995). The ﬁrst three decades after the landing of Columbus on the island of Hispaniola (Santo Domingo) in 1492 had been a disappointment to the newcomers. America had “remained a half forgotten reality that disappointed the pioneers, because it failed to produce either immediate wealth or a route to the Spice Islands” (Kamen, 2004). Gold was the highest priority in the eﬀort to reduce the Spanish crown’s careening debts. In the Caribbean, however, gold ﬁrst had to be panned from streams. By 1520 the total collection of gold may not have exceeded fourteen tons. In the following years the discovery of fabulous gold ﬁelds in Peru led to a wider pattern of exploration led by adventurers such as Hernando Cortes (1485-1547). In April 1519 Cortes and his men landed at the port of San Juan de Ulua, where they were showered with gifts from the local Mexican Indians: gold and other priceless ornaments. In November they entered the awesome Aztec city of Tenochtitlan, where the great Montezuma received them. According to Kamen (2004), Cortes was warned of a trap laid by the Cholulans and Montezuma’s men, and set upon his hosts with the assistance of the Taxcalans, their traditional enemies. As many as 3,000 Cholulans may have been killed in ﬁve hours of slaughter. Further victories as well as defeats followed for the Spanish forces until May 1521, after Montezuma’s death, when the city of Tenochtitlan was taken after a lengthy siege. Aztec diplomacy had proved unable to secure a peace among the warring Mexican peoples, and with the formidable intruder. Conciliation was not the Aztecs’ strongest suit. Neither did the Aztec concept of governance contribute to the progress of humanity. Their religious practices, based on human sacriﬁce, are among the most revolting ever recorded. The mutilations inﬂicted seem so barbarous as to demand an explanation: apparently the imperative of constant sacriﬁce, the ripping out of hearts, to give the sun the blood it needed for nourishment. As Roberts (1995) notes, “a state of peace in the Aztec empire would have been disastrous from a religious point of view”. One day, the Aztecs believed, their great god Quetzalcoatl would re-appear, “whiteskinned and bearded”, returning from the east. But the god that appeared came not to the Aztecs, but to the Incas of the Andes, much further south. In most matters, the Andeans were far ahead of the Mexicans, not least in the complexity and sophistication of their government, and in the justness and eﬃciency of their social system. In retrospect, we might say that the fatal weakness of Incan society lay in the willingness of the individual to submit to authority. By 1500 the Incas ruled over a huge realm

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extending from Ecuador to central Chile, the largest and most aﬄuent empire that had ever arisen in the pre-Columbian Americas. The Incas were less brutal than the Aztecs, tolerating variations of belief among captive peoples. They maintained an eﬃcient system of road transport and communication. Elaborate records were kept to ensure a bureaucratic tradition among the ruling caste, but the authority of the sovereign – the Sapa Inca – was absolute. All produce belonged to the state. There was no commerce, and therefore no threat of a rising merchant class. The god who appeared before the Incas, on November 16th, 1532, did so in the person of Francisco Pizarro (c. 1474-1544), the white-skinned and bearded governor of New Castile. This famous adventurer and schemer was hardened by fortitude when he encountered Atahuallpa that day in the Peruvian mountain town of Cajamarca. The king of the Incas was an absolute monarch, governing a huge nation within an extraordinarily superstitious culture, in which obedience to the king was unconditional. But the conquistador possessed an implacable eye, totally unyielding. When the Friar Vicente de Valverde presented the bible as proof of God’s intentions for the Incas, the king struck out in anger at the suggestion of superior orders. This was all the provocation that Pizarro needed to command the ﬁring of the Spaniards’ guns. The Incas were terriﬁed by the guns, but also by the horses (which also they had never seen), and by the divine appearance of things. No resistance was offered. Within hours, as nightfall ended the slaughter, 62 Spanish cavalrymen and 106 foot soldiers had killed around 7,000 of the 80,000 Incas in disordered ﬂight. Not a single Spanish life was lost. It is hard to understand how such a modest contingent could put to ﬂight an enormous army accustomed to the ﬂow of blood. For Diamond (1999), Pizarro’s advantages lay not only in military technology – in the guns, steel swords and armor – but in the possession of horses. By the time of the great Inca rebellion in 1536, only four years later, the Incas had learned how to defend themselves from cavalry attack in narrow passes, but they were never able to defeat a mounted force in the open. Disease, moreover, played a role in the rout of Atahuallpa, the most comprehensive of military defeats in world history. He came to be at Cajamarca because he had just prevailed in a civil war that had left the Incas perilously divided. The Inca emperor Huayna, his heir, and most of the court had died of smallpox, which had spread rapidly overland after its arrival with Spanish settlers in Panama and Colombia. As against the Aztecs in the 1520s, disease had proven once again to be an ally of the Christian West. Reﬂections. The convergence of four continents as the known world in the 16th century created the ﬁrst opportunity in world history to envisage a truly universal system of law. The human imagination could now be stretched far beyond the limited universe addressed by the prophets and idealists of Chinese, Indian and Greek antiquity. Alexander the Great had had a more generous, multi-ethnic community in mind, but the law he envisaged would be his law, governed by his own generous limited, yet still sense of civic benevolence. The Judaic, Christian, and Islamic con-

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ceptions of universal law and authority were diminished by their own attachment to religious certitude. Now, suddenly, over less than 100 years, a true universe had appeared, a world of diverse cultures and values – the “real world” known only to modern history. From this point forward, it would be possible to envisage an ideal world that might become governable within a framework of shared legal norms and institutions designed to serve humanity as a whole. The next ﬁve centuries would discover the relentless ardors of international legal development, but the challenge could now be understood in global terms. As we shall see, the early modern discoveries of Southern Africa and the Americas led to dissent within the juridical community of Europe regarding the character and purpose of the law of nations. Some, looking inward, saw its goal in terms of the need to bind together the relatively homogeneous “civilized world” of Christian countries. Others, looking outward, felt the necessity to draw in the other cultures and civilizations that were now known to make up the human universe. Among the outward-lookers, fundamental legal issues would have to be addressed: the question of “civilized” standards, the dilemma of “sources”, the interplay of rights and obligations, and still the contending legitimacies of spiritual and temporal authority. Above all, international jurists would have to take stock of the new reality of emerging sovereign states capable of imposing their will and their tradition of law and order on weaker peoples within a suddenly expanding world. The Rise of the Modern Sovereign State Questions. In the Age of Exploration it was, then, the West that set the pace for future development of the world community. By 1500, it seems obvious in retrospect, Europe was beginning to evolve into an array, if not yet a system, of nation-states. Would this transformation in the structuring of power and authority be legitimized in a wholly new way? Would the ﬂedgling nation-states of Europe now begin to establish more orderly and more honorable relationships among themselves through a professionalized diplomatic service? Or was the new world community condemned to go through a painful, awkward, and self-centered adolescence? Dynastic Ambition and National Sentiment. In 16th century Europe, at the core of the expanding universe, there was no mistaking the growth of national consciousness. The power of local rural barons had waned, as commercial towns became the centers of prosperity. Economic alliance with urban merchants became the new necessity for monarchs seeking the means to secure dominion over their subjects. Yet, despite the dependency of early modern monarchs on new sources of revenue, the 16th century witnessed the rise of absolute authority: the idea of total legitimacy at the center of the nation-state. Absolute personal power has been a familiar feature of world history, in all eras and most societies, both East and West. Yet absolute rule was never a guarantee of security for the ruler. Few have possessed greater power and authority than the Inca Emperor Atahuallpa (Gibson, 1969). But when he was faced down by Pizarro at

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Cajamarca, his hold over his fearful soldiers proved entirely non-existent. Among his ﬂeeing troops there was no tradition of patriotism to be betrayed. At the overthrow of the Incas in 1532, Pizarro’s master, Charles I of Spain, was himself one of several European monarchs engaged in the building of a new kind of political order. The new kind of state, now emerging, was governed by a monarch of unshared authority but made strong and enduring by the trust he could place in obedient and loyal subjects. State structure had to be accompanied by national sentiment. By 1532 four countries ﬁtting this model had become established as the paradigms of the new order. The building blocks of modern Europe were Spain, Portugal, England and France. In these countries, all hopes and energies were ﬁxed upon the national interest, largely acquisitive in nature but not lacking the further motive force of national honor. There, the Holy Roman Empire was dismissed as a meaningless façade, claiming a legitimacy that its rulers could not sustain, despite the eﬀorts at restoration by the Emperor Maximilian I begun in 1505. The idea of a single central authority was perceived to be dead. The myth of a European empire was exposed. The future of the continent lay with a rising system of independent nation-states. Despite the early pre-eminence of Spain and Portugal in overseas discovery and conquest, the political ascendancy would belong increasingly to England and France. It was their continuing rivalry that had had the greatest impact on the geopolitics of the Middle Ages, and it was their competition for power and wealth, at home and overseas, that would have the widest repercussions down to the end of the Napoleonic Wars. England’s entrée into the modern world of nation-states is generally accepted as the achievement of the Tudors. Henry VII’s rise to power in 1485 marked the beginning of strong central government in England. His hereditary claim to the throne had been weak, but his victory over Richard III at the Battle of Bosworth cleared the way. Within ten days after his coronation, he secured parliamentary recognition. The people’s representatives were heartily glad to be ﬁnished with the civil wars that had sapped the country’s vitality throughout the 15th century, and undermined the important business of making money. They were ready for strong rule. It is useful to recall that England, at the accession of the House of Tudor, had a population of less than four million. France, with around 12 ½ million, was more than three times larger, and Spain, with nearly 9 million, was more than double in size, quite apart from its captive peoples overseas. The various Italian territories, which would not be united for another 400 years, had a larger combined population than Spain. Yet, although a relatively small country, England had a long history of independence from the powers of continental Europe. Speciﬁcally, since the reign of Edward II in the early 14th century, it had consistently denied any subordination, nominal or actual, to the Holy Roman Empire. Royal solvency under Henry VII was understood to require the avoidance of costly wars, not least with the troublesome Scots. In 1499 his conciliatory eﬀorts were rewarded with a treaty of peace, followed in 1502 by the famous marriage between his daughter Margaret and James IV of Scotland. This dynastic coup would lead a cen-

Shaping of the Modern World (1492-1645)

tury later to the Union of the Crowns, with the accession of James VI of Scotland as James I of the united nation. The Tudor style of government was always willful, but Henry and most of his successors accepted, with reluctance, the competing legitimacy of Parliament and the power of the merchants’ purse. In matters of foreign policy, Henry VII was shrewd in his dealings with Spain, which ranked as Europe’s leading power. Through the marriage of his eldest son Arthur to Catherine of Aragon (1485-1536) in 1501, England acquired a degree of unaccustomed stability on the continent. When Arthur died ﬁve months later, at the age of sixteen, Catherine was betrothed to the king’s second son, Henry, in the following year, by virtue of papal dispensation, since the marriage came within the forbidden degrees of consanguinity. Under Henry VII there would be no foolish misadventures such as a papal crusade against the Turks, an invitation that was ﬁrmly declined in 1501. The possibility of a quid pro quo was apparently not considered. The desire for national glory took other forms, mixed with the prospect of proﬁt. In 1496 Henry had issued letters patent to the Venetian John Cabot (c. 1450-1499) and his sons, authorizing them to sail westward under the English ﬂag in search of unknown lands, with one small ship and only 18 men. In June 1497 Cabot found land far to the west of Ireland, what may have been Newfoundland or Labrador. In the following years, he raised much larger funds from the merchant community of London. Equipped with ﬁve ships and 200 men, his second expedition discovered additional territories, apparently Nova Scotia, New England, and further south as far as Chesapeake Bay. Although returning with nothing for his investors, Cabot had succeeded in giving England a place of prestige in the record of early maritime explorations, beneﬁting the status of a rising nation-state. He had also alerted Europeans to the extraordinary wealth in the form of ﬁshery resources on the Grand Banks of the Northwest Atlantic and around the shores of Newfoundland. This new source of wealth would soon attract the ﬂeets of Western Europe, and eventually lead to legal disputes and settlements of great importance to the development of international law (Johnston, 1965). Similar but more belligerent ambitions were in evidence at Paris: in the courts of Charles VIII, who ascended the throne of France at the age of 13 in 1483 and his successor Louis XII, who reigned from 1499 to 1515. Unlike Henry VII of England, Charles VIII devoted his reign to foreign adventures. He remained essentially a headstrong teenager, inspired by the romances of chivalry and the intoxicating vision of delivering Constantinople from the Turks and installing himself as the Emperor of the East. First, he had to secure the House of Anjou’s claim to the kingdom of Naples, to which his father Louis XI had succeeded. To this end, he ﬁrst signed treaties of peace to protect his ﬂank: with Henry VII of England at Etaples in 1492, and with Ferdinand and Isabella of the united nation of Spain at Barcelona in the following year. His military adventures enjoyed early success, when he occupied Rome in 1494, forcing Pope Alexander VI to take refuge in Castel Sant’ Angelo. In the following year he entered Naples and was crowned in the right inherited from his father. But he was driven northward in retreat and died in 1498, a disillusioned champion of lost causes.

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Louis XII followed the same policy of expansion, but attempted a more judicious balance between wars, treaties of peace, and dynastic marriages – a warlike version of Henry VII. Despite his open espousal of absolutism, he was a popular king, especially in the streets where he was regarded as defender of the oppressed. Like his English contemporary, Louis was also successful as an administrator, and when he died in 1515 the structure of French royal authority was sturdier than before. The Legitimation of the State. The combination of royal supremacy and national sentiment provided exactly the right conditions for the development of the most famous doctrine in the history of classical international law: the concept of state sovereignty. An entire juridical infrastructure was to be constructed on that foundation throughout the 17th, 18th and 19th centuries. The original architecture of the interstate system was the work of several jurists in the 1600’s, but this process is hard to imagine without the earlier theories of two seminal contributors to modern political thought. Niccolo Machiavelli (1469-1527) was the son of a respected Florentian lawyer, who belonged however to the relatively impoverished branch of a prominent family. As an insolvent, his father was debarred from holding public oﬃce, and Niccolo lacked some of the advantages of an expensive education. However, he was surrounded by books at home, and, like other self-taught geniuses, owed much of his originality to a mind unencumbered by the weight of scholasticism imposed by teachers of repute. Untouched by his father’s stigma, Niccolo was admitted to the lower grade of the chancery of the Republic of Florence, and quickly rose to a position that brought him into frequent contact with the diplomatic community. His ﬁrst external assignment in 1500 was to the Court of Louis XII of France. Back home, he witnessed around him the steady disintegration of the once-proud Italian city-states, now diminished by weak, venal, and incompetent rulers, who had become dependent on undisciplined and arrogant mercenaries from other lands. Throughout the following years as a statesman and soldier, Machiavelli was fascinated by the challenge of statesmanship. Despite the dangers and misfortunes he encountered in the ruthless world of Florentine intrigue, he never ceased to record his impressions in brilliant and insightful prose, revealing himself as part-analyst and part-idealist. Above all, Machiavelli was a patriot, who yearned for a republic based on order. The tragic and endless disorders of his time convinced him that the greatest civic need was for a strong, astute, and single-minded ruler. In his most famous work, The Prince (Il Principe), written in 1513,he described with startling frankness the qualities that a strong prince must possess to hold the polity together. Benevolence was to be hoped for, because Machiavelli was a moral man, but, in a world so obviously evil, public order had to be the ﬁrst essential. He had experienced the bitterness of this singularly Italian truth. At the center of Machiavelli’s political philosophy is the bleak idea that the kind of “virtue” that had to be possessed by an eﬀective ruler committed to the preservation of civic order is one that includes the willingness, if necessary, to put aside considerations of law and morality. He was the articulator of what today we might consider the darker side of “national interest”: the concept of “political necessity” or “raison

Shaping of the Modern World (1492-1645)

d’etat”. In his eyes, distressed by what they had seen, the republic was “an organic structure whose full power can only be maintained by allowing it in some way to continue growing”. It was his duty to indicate to rulers “both the path and the goal for such a growth” (Meinecke, 1957), especially in confrontations with an external enemy. Machiavelli was not a typical Renaissance man. He did not share the religious enthusiasm that inspired so many of his contemporaries. He was not especially interested in artistic creations. But in the energy he invested in the search for the dynamics of the modern state, he was a man of his times. Despite an outward show of respect for the Church, he was “at heart a heathen who leveled at Christianity the familiar and serious reproach of having made men humble, unmanly and feeble.” Machiavelli’s tough-minded amorality has been anathema to many who have taken up the same task of deﬁning the duties of power-holders. None in the 16th century was more repelled by the dangers inherent in Machiavellism than Jean Bodin (15301596), politician and political philosopher, whose views on statesmanship, like Machiavelli’s, were shaped by personal experience in the “arena”. In the manner of the humanist Hugo Grotius two decades later, Bodin was born into a prosperous bourgeois family, received a conservative early education, but was forced by conscience into the politics of religious strife. Admitted into the order of Carmelite monks as an adolescent, he became exposed to the “new learning” as well as the old. Bodin studied Hebrew as well as Greek. He accepted the preference of his era for Plato over Aristotle, but also became infected with dangerous heresies, “detached from orthodoxy”. It may be that he had to recant in order to save himself from the ﬂames that consumed some fellow Carmelites, including the prior at Tours. He may have taken the reasonable view that a scholar was justiﬁed in concealing his innermost convictions, if they might be the source of his ruin. Around 1550 Bodin was drawn to another calling, responding to the lure of the civil law. For several years he taught law in Southern France, where the law schools had been strongly inﬂuenced by the humanist determination to recover the classical past, even to the point of giving priority to restoring the original text of Justinian’s Corpus Iuris Civilis. Then he moved north to Paris to take up the practice of law. According to Tooley (Bodin, 1955), Bodin’s relocation brought him to a region possessing a highly developed system of customary law, where the process of codiﬁcation had been under way since the reign of Charles VII and was being promoted by the current king, Louis XII. The broad, comparative approach to legal development favored in Paris involved Bodin in the search for universal law and the secrets of good government. In 1571 Bodin entered the service of the king’s brother, Francis, Duc d’Alencon, and thus he was projected into the world of diplomacy. The duke, his patron, was strongly of the view that the state should be primarily concerned with the maintenance of order, not the defense of the true religious faith. It came under the monarch’s absolute authority to determine the measures that had to be taken to that end. The king’s right to demand obedience prevailed over the alleged “right of resistance” in the name of religious integrity. Although never the victim of imprisonment and torture like

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Machiavelli, Bodin was fully aware of the horrors of civil war and anarchy, and, like Cicero and other Roman jurists, insisted upon the absolute authority of the state. For international lawyers, of course, the importance of Bodin’s theory of sovereignty lies in its external implications. “The idea that there is a sovereign authority within the single community involves the corollary that this authority is one among other authorities which are ruling other communities in the same sovereign way” (Hinsley, 1969). Theorists in the past had anticipated the concept of internal sovereignty in diﬀerent terminology, but no one previously had thought of extending its logic to the world outside the state. Despite continuous debate on the nature of authority, the medievalists never came close to grasping its international signiﬁcance. It would be left to later generations to ﬁnd a way through the formidable dilemma of how to reconcile the existence of a binding international legal order with that of a system of states possessing autonomy as absolute as Bodin’s notion of sovereignty. As we have seen in Chapter Five, the medieval “right of legation”, and therefore the right of envoys to special legal protection, extended to a wide range of associations, not only kingdoms and dukedoms, but also cities, gilds, bishoprics, and even universities. For Bodin, the state was totally distinct from all these other entities, distinguished by the fact that only it possessed the attribute of sovereignty. A state, however small, remains a state as long as it retains sovereignty. “A little king is as well a sovereign as the greatest monarch in the world”. Bodin’s theory of sovereignty did not become deeply rooted in 17th century doctrine. Most scholars continued to hold to the conservative, medieval view that international society existed, at least potentially, as a single society governed by divine or natural law, expressed through a “network of common legal rights and duties”, which were applicable equally to all component states (Hinsley, 1969). To them, invoking the notion of divine or natural law seemed the most decisive way of repudiating the amoralism inherent in Machiavellism, and in confronting the danger of expediency associated with succeeding notions of raison d’etat. Metaphysical explanations would still be needed to validate the concept of a law of nations that purported to govern states with Bodinesque attributes. A path through the thicket of legal theory would not be cleared until the time of Vattel in the mid-18th century. Bodin glimpsed the problem he had created, but the political conditions of the late 16th century did not permit a solution to be imagined. Reﬂections. The notion of the state is fundamental in modern political theory (D’Entreves, 1967). Nothing in the history of human society has been more stable than the structure of the modern state (Migdal, 2001). The concept of state sovereignty has become one of the basic, infrastructural norms or “principles” of classical international law. Needless to say, the term “sovereign” (derived from the Latin “supra” or the medieval “superanus”) precedes Bodin and is found in early French (“sovrain” or “souverain”) and Italian (“sovrano”). Arguably, the idea of the sovereign state began to emerge as early as the 10th century, when the bondage between feudal lord and vassal began to loosen, yielding to the ﬁrst form of central government administered by oﬃcials and magistrates under the king’s authority (Wildhaber, 1986). By this reasoning, the concept of state sovereignty is derived from the need for cen-

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tral administration (de Jouvenel, 1955), and therefore is of medieval vintage (Strayer, 1970). Through the pre-modern era, the idea of sovereignty took on several lives, ranging from the theoretical extreme of absolute, permanent and inalienable authority to practical experiments in primacy within a framework of shared authorities. Some versions of the concept evolved in theology, others in political theory, still others in law, at a stage of intellectual history when no clear boundaries were drawn among these disciplines. Clarity is a modern virtue, if it is a virtue at all, and yet it is still impossible today to ﬁnd a scholarly consensus on precisely how the term “sovereignty” should be used, even within any one discipline. Yet the notion of the sovereign state was to become the cornerstone of the normative structure erected by jurists in the classical period of international legal development. As we shall see, later generations of international lawyers have diﬀered on the merit of legal sovereignty as an absolute or near-absolute postulate. For some, sovereign statehood remains today the basis of international society (James, 1986), not least if we insist on the political importance of its correlative, the doctrine of state equality (Klein, 1966). If all states are sovereign, none can be legally subordinate to any other. If international law is to be eﬀective as a shield, protecting the weak from the strong, then the concept of sovereignty cannot be unduly diluted. On the other hand, as the necessity for inter-state cooperation increases with the complexity of the modern world, state sovereignty can serve as a barrier to progress, as a shelter for unscrupulous regimes and oppressive elites. Many international lawyers are suspicious of absolutes and abstractions, or of those willing to invoke them readily without the decent appearance of embarrassment. The role of sovereignty in the theory of international law is a continuing dilemma that deﬁes any easy solution. Bodin’s theory of near-absolute internal sovereignty is diﬃcult to support today, if it is conﬁned to the individual state. We might prefer to vest it in the people, in the form of popular sovereignty, within the framework of political theory, in order to conform with most modern versions of democracy. Almost all democracies depend upon a sharing of powers among the executive, legislative and judicial organs of government. Moreover, an inter-level division of powers, in all three domains, is an essential characteristic of a true federal state in today’s world. To most of us, the concept of near-absolute external sovereignty is just as diﬃcult to justify. There may be good reasons for the international community to intervene occasionally in the internal aﬀairs of a rogue or failed state. In extreme humanitarian circumstances, intervention might even be characterized as an obligation, rather than a right. Sovereignty, whether internal or external, is becoming diﬃcult to reconcile with compelling reasons of morality that now can often be seen to override the prerogatives of a sovereign state. Yet it remains as a cornerstone of the international legal system. If it is crumbling, how much of the ediﬁce it supports will also come crashing down? It may be feared that the raison d’etat doctrine associated with Machievelli is as dangerous today as at any previous stage of world history. His own bitter experience was chieﬂy with the erratic rulers of the Italian city-states and the rapacious monarchs of ﬂedgling nation-states. As the leading early modern exponent of political re-

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alism, he has inﬂuenced innumerable political theorists and practitioners of the 20th century, often to a degree that disturbs the international law community. Yet many prominent writers of that era such as Hans Morgenthau and Georg Schwarzenberger, and perhaps Myres McDougal, have felt the need to keep international law oﬀ the road to Utopia. Without surrendering to the amoralism of an embittered statesman, we might accept the value of maintaining the search for a principled balance between the idealism of international law and the realities of power-holding. This dilemma is nowhere more diﬃcult than in the context of intervention, which was surveyed in Chapter One. The Bodinesque doctrine of near-absolute state sovereignty received a near-lethal blow in 1945, when the UN Charter authorized the Security Council to make interventionist decisions, including those involving the use of force. Since then “sovereignty” in such important matters can be said to reside with the Council acting on behalf of the organized world community. In practice, the United States has intervened “unilaterally” on many occasions, with or without allies. Such decisions have been inﬂuenced by a changing combination of interests and values, arguably in the Machiavellian tradition of “political necessity”. The US government’s policy of intervention has divided the US electorate, usually but not always along the lines of domestic party politics. Thoughtful Americans have been left with the diﬃcult question of determining when such apparently “illegal” actions are “legitimate”, and when they are not (Soros, 2004). Most international lawyers are left with the unhappy reminder that international law, in issue-contexts of “vital interest”, continues to rest on political foundations. Religion, War, and the Quest for Perpetual Peace Questions. The newly articulated concept of state sovereignty in the last quarter of the 16th century might seem to lay the doctrinal foundation for the development of a world order of secular authority. But was Europe ready to emerge from the dogmas and strictures of its Age of Faith? If national interest and patriotic sentiment were now the vogue in inter-state aﬀairs, would the emergent states ﬁnd a common interest in cooperation, or were sharper animosities about to erupt, prolonging the ancient succession of wars and brutalities? What sentiment was there for a settled peace throughout the four continents? Who were the paciﬁsts? Were the rulers listening to these voices for reason and moderation? Western Christian missionaries have begun to descend upon newly discovered inﬁdels and barbarians. How would they be received? Would they, or the traders from the West, be able to draw the Japanese into the expanding world community? Would the presence of foreigners from distant lands have any impact at all on the ideas and practices of the more highly developed Chinese system of civilization? What roles would the Arabs play in the new world-system under the inspiration of Islam? Religion in the Far East. The period from 1450 to 1650 was one of monumental shifts in the history of religion. Almost everywhere, in virtually every system of civilization, minds were opening up to the possibilities of doubt, dissent and conversion. The Age of Faith was yielding to a very diﬀerent phase of cultural development, an

Shaping of the Modern World (1492-1645)

age of dangerous confrontations. It was, above all, a period of rising hatred among those who no longer shared the same god. Only in China did the force of cultural unity prevail over the duty of religious commitment. The mandarins of the Yuan dynasty had been shaken by their Mongol rulers’ tolerance of foreign religions. In Persia many Mongols had embraced Islam, and Nestorian Christianity in Central Asia. In Beijing Mongol imperial indiﬀerence to any one true faith was openly displayed in the face of traditional Chinese religions. The non-sectarian eclecticism of the Mongol emperors had permitted the building of monasteries for Taoist revisionists in North China, but also encouraged more conservative Taoist sects in the Yangtze Valley. Meanwhile Zen Buddhism, itself a major source of inﬂuence on Taoism, continued to ﬂourish under imperial patronage. The Mongol rulers themselves responded mostly to Lamaism, the “debased” form of Buddhism that had developed in Tibet. Traditional forms of religious faith fused with a cult of magic and divination that bore some resemblance to the traditional shamanism of the Mongols. Today, in looking back to the Yuan dynasty, we might be impressed by the Mongols’ introduction of a primitive form of cosmopolitanism. But the mandarin elite was not so easily impressed by the introduction of these impurities into the Han culture. The Tibetan lamas brought in “new dances at court to please the emperor, and a mad lama even riﬂed the tombs of the Sung”. Such outrages are not easily forgotten. Moreover, these importations created new costs of patronage and interfered with the emperor’s performance of sacred Confucian ritual (Reischauer and Fairbank, 1958). Under the Ming (1368-1644) religious variation never came close to threatening the momentum for civic unity under a central government. As explained by Reischauer and Fairbank, “the Chinese state was regarded as coterminous with Chinese culture. The spread of one carried the other with it. In Chinese thinking they were not distinguished. In Chinese ‘culturalism’ there was such a close identiﬁcation of the entire way of life with the uniﬁed empire that the one implied the other. It was somewhat as if the Roman Empire had persisted in the West and succeeded in preventing the rise of France, England and the other nations. There could be but one sovereign, the Son of Heaven” (ibid.). Religion, however heterogeneous, was subordinate – like commerce, science, and scholarship – to the unifying prerogatives of the imperial government. In Japan, foreign religions were perceived more acutely as a threat to the culture and maintenance of civic order. By the middle of the 16th century foreign trade in Japan was expanding, as in Europe, giving rise to commercial towns. New religions and commercial groups of commoners were challenging the status of the local daimyo. Yet 16th century Japan did not follow the course taken by the emerging sovereign states of Europe. Instead, it moved into another phase of feudalism, attaining a degree of unity and stability under strong rulers such as Oda Nobunaga (1534-1582) and Toyotomi Hideyoshi (1536-1598). In the Tokugawa period, the Japanese rejected the option of becoming a modern sovereign state in the Western fashion, delaying by over two centuries Japans’ entry into the modern world. Although the uniﬁcation (or reuniﬁcation) of Japan was mainly the result of a long process of domestic evolution, it was also reinforced by the impact of European mis-

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sionaries and traders in the 16th century. The former were seen by the more ambitious power-holders to necessitate the centralization of authority to repulse foreign inﬂuences on the Japanese way of life. Half a century after Dias had rounded the Cape of Good Hope, the Portuguese reached Japan, landing on an island oﬀ the coast of Kyushu in 1543. Within six years the Jesuit missionary Francis Xavier (1506-1552) started preaching the Christian gospel in Japan. At ﬁrst these encounters produced mutual respect. The Jesuit missionaries were initially acknowledged to be holy men of “discipline and learning, comparable to their own Zen priests”. However, the intolerance of the foreign missionaries gradually became apparent. The antagonized Buddhist clergy contributed to the oﬃcial hostile reaction, inducing local authorities to expel the proselytizers in their midst. Many Japanese traders who had converted to Christianity, because it was good for business, abandoned their new faith under varying degrees of coercion. Yet by 1615 there may have been as many as 500,000 Christians in Japan. Moreover, the country was in the grip of “a veritable craze for everything Portuguese”, not least their arquebuses which quickly became indispensable in Japanese warfare. The early rise of Christianity in Japan was ﬁrst checked by Hideyoshi in 1587, when he banished all missionaries from Japanese shores. His motivations appear to have been political rather than religious. In his drive for central control over the whole of Japan, he feared that Christianity was subversive, dangerously popular with too many daimyos. Hideyoshi’s vassals were ordered to obtain his permission before converting to Christianity and warned against the forcible imposition of the foreign religion on the people they ruled. Signiﬁcantly, he placed no restriction on the beliefs of the lower classes, who seemed to pose no threat to his central authority. At ﬁrst the Jesuits ignored the ban, trusting to the appearance of symbolism in Japanese politics. But as their proselytizing continued in secret, and stories of colonial conquest elsewhere drifted in, Hideyoshi suddenly lost his patience. In 1597, six Spanish Franciscans, three Portuguese Jesuits, and seventeen Japanese converts paid the price of cruciﬁxion. Hideyoshi’s successor, Tokugama Ieyasu (1542-1616), eager for foreign trade, started by rescinding the ban on Western missionaries. However, when Ieyasu, founder of the Tokugawa shogunate, learned that he could have the trade in goods without the trade in convictions, his attitude to Christianity began to change. The arrival of Dutch and English vessels led to his new view of things that religious tolerance was not considered a prerequisite for diplomatic or trade relations with Europe (Reischauer and Fairbank, 1958). Thereafter, persecutions of Japanese Christians became increasingly brutal. In the reign of Ieyasu’s successor, his son Hidetada, between 1605 and 1623, barbaric tortures were devised to force Japanese converts to recant. By the mid-17th century, over 3,000 Catholic martyrs had died in agony for their adopted faith. After a revolt of semi-Christianized peasants in 1637, some 20,000 men, women and children were slaughtered, bringing to an end the Christian movement in a country now determined to achieve the status of isolation from the world outside.

Shaping of the Modern World (1492-1645)

Religiosity in the Near East. The 1450-1650 period was also a period of crisis for Christians, Jews and Muslims in the Near East. In 1453 the Ottoman Turks captured the Christian city of Constantinople, ending the empire of Byzantium and causing shock waves throughout the realms of Christendom (Norwich, 1998). The Turkish threat to Constantinople had been evident for many generations, but the age of division between the Christian East and the Christian West had always precluded any serious hope of an eﬀective union to resist the spread of Islam. In the West, anti-Islamic energies had been focused on the Iberian peninsula, and in the East the Orthodox Church had been in schism since the Council of Florence (1439). All that was needed to topple the famous city was a determined adversary. Sultan Mehmet II (c. 1434-1481) was exactly the right man to fulﬁll this mission. Son of a slave girl in the imperial harem at Adrianople, he had had an unhappy childhood, surrounded by the perils of a court of particularly vicious intrigue. He was also surrounded by the leading Turkish scholars, who succeeded in developing an unusually able mind. By the time of his accession in 1453, it is said, he was ﬂuent in Latin, Greek, Hebrew, Arabic and Persian as well as Turkish. At the age of nineteen, Mehmet shrewdly encouraged the delusion of Constantine XI and his advisers in Constantinople that the new sultan up river was too young to maintain the threat to the city that Mehmet’s father, Murad, had posed, despite the usual assurances of friendship between the neighboring peoples. Reassurances were oﬀered immediately to Constantine’s ambassadors, but his actions were more disturbing: the speedy construction of a fortress on the Bosphorus just a few miles from Constantinople and the building of a naval ﬂeet which gave him complete control of the strategically crucial waterway. Gift-bearing envoys from the city kept arriving with pleas for peace until one of them provoked Mehmet suﬃciently to have him executed on the spot. It seems unlikely that the young ruler had been tutored on the ancient tradition of diplomatic privilege. Despite the importance of the famous channel for international navigation, Mehmet issued a proclamation that every passing ship must stop for examination, whatever its nationality. A Venetian commercial vessel transiting the Bosphorus chose to ignore this deviation from normal international practice. In the gunﬁre that followed, the vessel was sunk, the crew killed, and the captain impaled on a stake (Norwich, 1998). The citizens of Constantinople were well prepared for the siege that was so clearly impending, but on the eve of the initial assault 700 Italian soldiers on seven Venetian vessels shipped out of harbor in the dark despite an oath of alliance. This desertion left only a navy of 26 vessels and an army of only 7,000 men to defend the center of the Christian East against a much larger navy, an army of over 100,000, and a siege train of 70 cannon, including awesome siege-machines built by a Hungarian-German engineer. The city held out heroically for almost two months. The days of rape and pillage that followed have few equals in modern military history. The cannonade that ﬁnally brought Constantinople down signaled the end of the medieval era of walled cities. The great cathedral of St. Sophia was now a mosque, but the Orthodox Christian Church survived. Despite the butchery at Constantinople, Mehmet proved moder-

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ate in his tolerance of the inﬁdels who chose to return – indeed were urged to do so, since they made up the bulk of the city’s merchant community. As Roberts (1997) notes, the sultan seems to have wanted a multi-religious society, perhaps on the model of Alexander the Great. He was especially aware of the advantages of bringing back the Greeks to Constantinople. To reassure them, he appointed a patriarch, under whom they were eventually allowed a measure of self-government. The ferocious young warrior was to become a ruler with some regard for civic benevolence. He built a complex of imperial mosques, schools, hospices and libraries, creating a ﬁne inheritance for his eventual successor, Suleyman the Magniﬁcent (1495-1566), whose reign would mark the highest point in Ottoman civilization and whose personal example as a great ruler has been almost unmatched in the history of Europe (Hourani, 1991). After Mehmet II, the Ottoman Empire continued for some time as a multi-religious state, preserving Islamic law, but giving a recognized status to Christian and Jewish communities. Despite the need not to show weakness in an age of rampant militancy, the Turks treated Christians and Jews much better than Christian Spain treated Jews and Muslims (Roberts, 1997). Yet the relative benevolence of Ottoman rule under Mehmet and his successors did not save them from a reputation as the scourge of the deeply fractured Christian West (Kennedy, 1987). Europe’s nervousness about the spread of Islam by the late 15th century is understandable. Three new Muslim empires had been founded: not only the Ottoman Empire established by the Turks in Asia Minor and Eastern Europe, but also the empire of the Safavids in Iran and that of the Moghuls in India. These political developments proved that Islam was again on the rise after a period of imperial disintegration. All three empires were to achieve distinction in cultural achievements, comparable even with the Italian Renaissance, but their theologies were more conservative than before, and permanent rifts were opening up. Under the Safavids in the 16th century, the Shiites and Sunnis formed two rival camps, creating an atmosphere of sectarian hostility similar to the religious warfare erupting at that time in the Christian West. The founder of the Safavid dynasty, Shah Ismail I (1487-1524), who came to power in Azerbaijan in 1503, extended his rule to western Iran and Iraq, determined to force the Shah on his Sunni subjects. Unsurprisingly, these harsh measures provoked a counter-display of oppression among the Sunnis of the Ottoman Empire, who suppressed the Shiites in their own territories. “Seeing themselves on the front line of the latest holy war against the crusading West”, as Armstrong (1993) suggests, “the Ottomans also cultivated a new intransigence toward their Christian subjects”. Yet, as she adds, the Muslim clerics (uremia) of Iran created a tradition of alliance with the people against royal oppression, a practice of upholding the rights of the poor against the encroachments of the shahs, as dramatically enacted in 1979 against the corrupt regime of Shah Muhammad Reza Pahlavi. One of the most enlightened of Islamic scholars in the 16th century was Mullah Sadra (c. 1571-1640), who is greatly honored as a profound thinker among moderate Muslims today. He taught that the “approximation of god” could not be conﬁned to any one faith. He “did not envisage God sitting in another world, an external, ob-

Shaping of the Modern World (1492-1645)

jective heaven to which all the faithful would repair after death”. Heaven was to be discovered within the self on the seat of divinity that is the “inalienable possession of every single human being. No two people would have exactly the same heaven or the same God” (Armstrong, 1993). In a similar manner, the spirit of religious tolerance and cooperation was vividly reﬂected in the moderate policies of Akbar (Jalal-ud-Din Mohammed) (1542-1605), the third and greatest Moghul ruler of India. Akbar’s reputation owes much to his tolerance of all faiths. Out of sensitivity to the Hindus, as Armstrong writes, “he became a vegetarian, gave up hunting – a sport he greatly enjoyed – and forbade the sacriﬁce of animals on his birthday or in the Hindu holy places. In 1575 he founded a House of Worship, where scholars from all religions could meet to discuss God. Here, apparently, the Jesuit missionaries from Europe were the most aggressive”. Western Religiosity in the East. The aggressiveness of Jesuit and other Catholic missionaries in the 16th century, and the ﬁrst half of the 17th, is hard to understand today in a world with more experience of muted spirituality. Intensity of faith in the Christian West was almost boundless among the most devout. The saints of the day regarded God and the mundane world as irreconcilable opposites. To be saved one had to renounce the world, including all natural aﬀections, according to religionists like Vincent de Paul (1581-1660), founder of the Confraternities of Charity. With similar zeal, the Jesuit missionary Francis Xavier (1506-1552) fearlessly evangelized Japan and also India. A generation later, another Jesuit, Matteo Ricci (1552-1610), bore the Gospel with equal fortitude into China. Ricci was fortunate in making early contact with the greatest of the Ming emperors, K’ang-hsi (1654-1722), who ruled China wisely and humanely for 61 years. The value of the Jesuits to K’ang-hsi had little to do with theology or philosophy. The new faith appearing from outside was just another of the hundred schools contending. But Western scholars conversant with astronomy, mathematics, and other sciences were respected rather as modern technical experts, whose advice was useful to the Chinese practitioners of statecraft. The Jesuits’ intellectual services in China were accepted for two centuries, until the early 18th century when they were ﬁnally forced to choose between the primacies of the Pope and the Son of Heaven (Reischauer and Fairbank, 1958). Jesuit intensity of faith had no apparent impact on the Chinese culture. Western Religiosity in the West. The most violent examples of religious intensity in the 16th century occurred, of course, in the heartland of the Christian West. Despite continuing similarities in their conception and experience of God, Catholics and Protestants were to become implacable opponents, displaying their own brand of intolerance towards one another, and to all other competing religions. While enlightened Muslim rulers like Akbar in India were actively seeking common cause with people of diﬀerent faiths, the Christian West was rejecting the notion of harmonious proximity with the two other religions of Abraham. Throughout the 15th century anti-Semitism was sweeping Europe. Jews were being expelled from one city after another. The notorious expulsion of the Sephardic Jews from Spain in 1492 came after a succession of expulsions over a 70-year period. Many

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of the Spanish Jews chose conversion to Christianity as the price for staying in their country, even though some continued to practice their faith in secret. It was perhaps the most bitter catastrophe in Jewish history, a cruelty inﬂicted upon a peaceful people evicted from the best home they had ever had in the Diaspora. The tragedy of 1492 reinforced the pattern of migrations forced upon the Jews. Some of them found their way to Palestine, where they sought relief in the mystical spirituality of Kabbalism and “discovered a profound signiﬁcance in their experience of homelessness” (Armstrong, 1993). In 1492, also the year of Columbus’s famous ﬁrst voyage, his sponsors, Ferdinand and Isabella, conquered Granada, the last Muslim stronghold in Western Europe. In the following years, Muslims were to be expelled from a country that had been their ancestors’ home for 800 years. But unlike their Jewish fellow-victims of Spanish intolerance, they belonged to a culture and religion with deep roots in many other territories. More than any other God-religion, Christianity in the ﬁnal decades of the 15th century was obsessed by visions of evil. Horror of the unfathomable works of Satan was the “dark underside of the Western spirit”. After the Bull Summa Desiderantes, issued by Pope Innocent VIII in 1484, Christian fearfulness degenerated into a 200year period of sporadic crazes targeting thousands of innocents whose eccentricities were abhorred as demonic. As Satan’s children, they were mostly subjected to horrible torture until they confessed to impossible, fantastic orgies of the human ﬂesh. “Inquisitors and ‘witches’ together created a fantasy which was an inversion of Christianity” (Armstrong, 1993). In 16th century Europe, crazes and monstrosities such as these contributed to the renewal of eﬀorts to reconceptualize the Christian faith. Some, but not most, of these reformers protested with such vehemence against the failings of the Church that they have come to be characterized as the architects of the Protestant Reformation. Yet the best-known of them was also a believer in witchcraft and was a willing Christian soldier in the terrible battle against the forces of Satan. Martin Luther (1487-1546) had demons of the own to overcome in what we might regard as a modern condition of personal self-disgust. The intensity of his need for spiritual salvation forced him out of the mind-set of scholastic theology that he was expected to cultivate and into his own doctrine of justiﬁcation. Yet, despite his joy in self-discovery, he remained “a disturbed, angry and violent man”. The ideas of John Calvin (1509-1564) proved to be more inﬂuential than Luther’s on the ethos of the early modern era. For millions of people wishing to venture into a more dynamic spiritual world, the dogmas of the present were not much more attractive than the dogmas of the past. Calvinism, light on dogma, responded to the yearning for a simpler piety framed around the scriptures written in the native language. As Karen Armstrong writes, Western Christians seeking a reformed religion “were no longer willing to accept mediators but were evolving a sense of their inalienable responsibility before God”. Above all, Calvinism was a faith that traveled well throughout Northern Europe and beyond, inspiring the colonization of New England in the 1620’s and the Puritan revolution two decades later in the Old England of Oliver Cromwell.

Shaping of the Modern World (1492-1645)

The dogmas of Spanish Catholic theology crossed the ocean as a faith to be imposed on the gun-less and horse-less peoples of the Americas. Religious uniformity enforced by persecution was the model exported to most of the early Americas by the Spanish Crown. Yet the freedom-seeking Puritans of Massachusetts envisioned a state of their own, from which their own brand of heretics would be excluded. In states where toleration was allowed to ﬂourish in the 17th century, as FernandezArmesto (2003) notes, “it was as a result of the outﬂow of refugees from Puritan intolerance enriching the populations of Rhode Island, founded as a refuge for Baptists, and Pennsylvania and Maryland, which were established for Quakers and Catholics respectively”. The Quest for Perpetual Peace. The ideal of lasting peace can be traced back to very early times. As Sohn (1982) notes, “the history of humanity is full of wars, large and small, with short interludes of peace”, and yet numerous persons in the pre-modern era have “dreamt about reducing the number and taming the ferocity of war, and lengthening the periods of peace”. Ancient paciﬁsts included Lao-tse, Confucius, and Asoka the Great, but peace treaties came and went, without much hope of perpetuation. The ﬁrst international agreement speciﬁcally designed to produce “peace without end” seem to have been the perpetual peace treaty concluded in 532 between the Emperor Justinian I (527-565) and King Chosroes I of Persia (531-579). It lasted less than a decade. It was followed in 562 by another, more comprehensive, peace treaty between the same two sovereigns, which had several interesting features – including a guarantee of protection to refugees, but not to prisoners of war, and was intended to last for 50 years (Preiser, 1984). At that time, however, the general view was that agreements signed by rulers were personal undertakings that could not be expected to bind their successors. If we view the early modern era as a period of incessantly warring religions and rival states, we might conclude that there was little forward movement before the mid-17th century toward a more tolerant and cooperative future. The poet Dante (Durante Alighieri) (1265-1321) had been the last of the medieval visionaries to advocate an expansion of the Christian empire by restoring the Roman ideal of universal law and peace (Hinsley, 1969). The famous writer has been credited with a far-sighted vision of universal peace maintained by a coalition of separate Christian states, perhaps coordinated through some kind of federal arrangement (Lange, 1926). In Dante’s own time, in the early 14th century, the most committed advocate of perpetual peace was the French lawyer and pamphleteer Pierre du Bois (c. 1250-c. 1320). In his ﬁrst work, Summaria Brevis, written in 1300, he argued – recklessly, for a paciﬁst – in favor of a war to end all wars. It had to be a total war, waged by an united Christendom against all inﬁdels, a war that might have to be ruthless in execution in order to ensure the outcome of perpetual peace. The monarch he envisaged as best qualiﬁed to preside, initially, over an exhausted but peaceful world was his own sovereign, Philip IV (“Le Bel”) of France (1268-1314). Philip was a reticent and handsome, though ultimately corpulent, man, but apparently also an intellectual fascinated by the ideal of a universal monarchy based on a re-Christianized Constantinople.

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DuBois returned to the theme of universal peace in his second work, De Recuperatione, which was completed around 1307. To the attainment of that goal, war again was a prerequisite, along with secular education, reform of the clergy, and international arbitration. Girls and boys should have equal access to a basic classical education before a channeling oﬀ: boys to logic and theology, girls to medicine, surgery, and other useful matters. He opposed celibacy among the clergy, whose wives would serve as peacemakers in the image of Solomon’s wives, who “turned away his heart”. The Pope would convene a General Council, whose edicts for a world of perpetual peace would be reinforced by treaties intended to bind the princes to submit disputes among them to international arbitration, in the manner of the city states of ancient Greece (Knight, 1924). It has been suggested that du Bois was a man of extraordinary vision, 600 years ahead of his time, the founder of the notion of world organization that would take institutional form with the creation of the League of Nations (Nippold, 1924). But others have seen in the Du Bois design a plan to bring the world under the hegemony of an established French monarchy (Hinsley, 1963). Marsilius of Padua (c. 1275-c. 1342) took the view that human nature was too quarrelsome to submit to any single emperor, however benevolent his rule. Such a striving for unity could only ensure unending wars and uprisings. In the 15th century, however, the growing fear of the Turks drew attention to the weakness of the divided West. Despite the gradual rise of independent states, the simplest way to deal with the problem of inherent weakness was to withdraw into the dream world of one dominant Christian state or super-state that would be able to turn back the tides of Muslim expansionism, and at the same time create a strength through union that would permit a lasting peace. Numerous scholars of the 15th, 16th and 17th centuries continued to put forward peace plans. None is more respected by posterity than the great humanist Erasmus of Rotterdam (c. 1466- 1536), an extraordinarily erudite and cosmopolitan scholar. Erasmus did not stoop to pamphleteering, but, perhaps more than any other, he provided the cause of paciﬁsm with a rational foundation in moral philosophy. Equally eminent among the early modern humanists and paciﬁsts was the English lawyer, theologian, and statesman Sir Thomas More (1477-1535), author of the partly satirical Utopia which was published in 1576. More was not so clearly an anti-militarist. Certain circumstances, he believed, could justify war, but not the prospect of commercial or territorial gain (Lange, 1926). Rulers too sometimes found it served their own political interest to invoke the goal of a union of peaceful states. One such monarch was the Czech Georges Podiebrad, King of Bohemia, a reformed militarist. In 1485 he submitted to the King of France a plan for a “League or Perpetual Union of Christian Princes”, which was written by his adviser Antonio Marini. This plan envisaged a federal parliament of princes, a common army, and a central executive authority – a notion that has not yet been found possible in the era of the United Nations. The ostensible purpose was to remove the Turks from Constantinople, but historians have suspected Podiebrad of seeking the French king’s protection from the Emperor and the Pope. Christian fear of the Turks continued to motivate the proponents of world peace. In 1587 Francois de la Noue

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envisaged the establishment of an international organization, a European League, designed to present a united front against the Turks. Perhaps the most illustrious of all these projects was the Grand Design of Maximilien de Bethune, Duc de Sully (1559-1641). Although dated 1595, this was not published until 1634, when it was included in Sully’s voluminous Memoires. It is inﬂuenced by the concept of a balance of power, which was to become the dominant motif of European inter-state politics in the 17th century. The object of this plan was to check the power of Austria, but it held out the prospect of an international Senate of Representatives with minor councils and a court of appeal. Sully has been treated fairly roughly by most historians. As the chief Minister to Henry IV of France, he was inseparable from the ambitious foreign policy of his sovereign. He was vain, ambitious, and domineering – not the most endearing or genuine of idealists. His memoirs have been excoriated as a self-serving pitch to posterity. By the time of the publication of Sully’s famous plan, a nobler vision had appeared in 1623. Emeric Cruce (1590-1648) was a Parisian schoolmaster of humble origin. A student of Montaigne, he possessed the gift of lucid prose, which he used to elevate the attack on inhumanity. His work Le Nouveau Cynee (1623) was inspired by the mythological example of Old Cyneas, who urged his master Pyrrhus to give up bloody wars. Unlike Sully’s, Cruce’s call was for a global, permanent, league of sovereign states, not merely a convenient union of European powers. It was the ﬁrst work to develop the idea of an international organization consistent with the modern principle of state sovereignty, open to the representatives of all non-Christian as well as Christian peoples. Even the Turks were invited in, though admittedly by the 1620’s they were no longer so greatly feared as the scourge of Western Europe. Cruce was the ﬁrst to make the economic argument against war, based on the modern concept of free trade among nations. Indeed he regarded commercial development as the “most beautiful fruit of universal peace”. As a humanist, he was more concerned with the moral life than with bodies of doctrine. This underappreciated idealist based his vision on the thoroughly modern principles of human solidarity and the interdependence of nations. Although he conceded the need for armed force to maintain legitimate authority, he envisaged the possibility of disarmament agreements (Lange, 1926). With Cruce, intellectual history can be said to have entered the age of genuinely modern international idealism. Reﬂections. World history reeks with the stale breath of incessant warfare. Most Western wars of the 16th and 17th centuries arose from religious passions and commitments of violent intensity. So it serves the need for perspective to recall the continuity of paciﬁst thought in the transition from the Middle Ages to the early modern era. Some of these early plans for perpetual peace were certainly hypocritical, but others reﬂected a genuine yearning to end all wars. Understandably, true idealists diﬀered on how their shared vision of world peace could be realized. For us today the most strikingly modern of these proposals were those incorporating some of the ideas of international government, propounded in an age when the contours of national government had not yet been clearly discerned. The virtual absence of the idea

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of popular sovereignty ensured, of course, that the way forward to the goal of perpetual peace would be seen by early modern idealists as involving chieﬂy the moral education of leaders possessing the power to wage wars that served their religious and dynastic purposes. Later centuries would show the “unnecessity” of world peace as a pre-condition of progress in the development of world law. The relative stability of the 19th century associated with the pax Britannica surely contributed to that process, but the classical system of international law that would emerge at that time followed its own pragmatic statist course, shaped by the imperatives of order rather than the prescriptions of peace and justice (Johnston, 1978). The Spirit of the Times Questions. Progress toward the ideal of world law in the 16th and 17th centuries could not be swift. The newly dominant nation-states now had a interest-based ideology that seemed to exclude the vision of shared human values. With the invention of print, knowledge could now be disseminated and challenged far beyond the tiny literate elites that had controlled the pace of change throughout all previous stages of world history. How should the Age of Discovery be judged as an inﬂuence on the future ethos of world trade? Was widespread commercial greed in the early modern world a necessary pre-condition of capitalism? Was the new drive for gain the source of irritants that would frustrate later, well-intentioned eﬀorts to regulate the international market place? Would humanist idealists have any success in limiting the aggressiveness of self-interested rulers? Behind the acquisitive practices of the new sovereigns, were new kinds of idealism beginning to ﬁnd expression in print? How did these early modern idealists envisage the future of international society? What debt would modern international law owe to the spirit of these challenging times? Overseas Trade, Commercial Greed, Slavery, and the Rise of Capitalism. Few periods, it has been suggested, have “prated more about ethical considerations in public aﬀairs, or acted less on them” than the 16th century (Einstein, 1962). It was an era of amazing contradictions, “a meeting-ground of opposite tendencies”. Viewed darkly, the modern world was shaped by turmoil: by commercial greed, political deceit, and the continuing abuse of power. Yet the 16th century was also the threshold to the more hopeful and more rational civilization of the 18th century, when the spirit of secular humanism began to leave its mark on the ethos of inter-state relations and a tradition of national honor found its voice. Above all, the 16th century was when the spirit of the Northern Renaissance and the Reformation began to transform the landscape of our ancestors’ imagination, creating totally new visions of our human destiny. Today we accept the emergence of international trade law as a natural phenomenon. We see international norms and institutions as necessary to the eﬀective regulation of the “world economy”. This view is generally shared, because most of us acknowledge the legitimacy of some degree of state intervention in the national

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economy. Global institutions such as the World Trade Organization and the International Monetary Fund are understood to represent – for better or for worse – our inter-state system. The fact is, however, that the concept of an “economy” is quite recent. The word itself is derived from the Greek for “household management” (oikonomia). If we choose to use modern economic terminology to refer to micro-management, then we may see no diﬃculty with the concept of “primitive economies” in the ancient world. But economic historians have been grappling since the mid-19th century with the difﬁculty of applying the modern macro-economic concept of an “economic system” to the conditions of primitive and classical antiquity. Certain features of ancient economic life are undisputed. It is quite certain that traders have been traveling far aﬁeld, by land and water, for thousands of years (Tavernier, 1971; Duche, 1969). In early times none were more traveled than the Arab merchants, whose movements extended from Spain to China and Cochin (Vietnam), and as far south as Southeast Africa. Their trading relationships established the Indian Ocean as the hub of their “commercial empire” (Verma, 1978). Many of the great maritime expeditions of the Western navigators of the 15th and 16th centuries resulted chieﬂy in the re-discovery of ancient maritime, as well as overland Arab, trade routes. But did the existence of these pre-modern trade networks mean that the ancients understood the concept of an “economy”? Did the “economies” of antiquity reach a high level of development, or did they remain essentially primitive? (Pearson, 1957) More speciﬁcally, how close did the Middle Ages come to the invention of capitalism? Many modern disciplines are generous enough to credit Aristotle with seminal contributions to their ﬁeld of inquiry. Economics is not one of them. For the majority of economists, the conditions of economic life in Aristotle’s Athens did not permit him to imagine, much less observe, an economic system: at least, not in any form resembling that of the phenomenon that was ﬁrst described in the 18th century. For most economists an economy in the modern sense could not be conceived until social development had resulted in a general awakening of the urge to earn and in an understanding of the value of money beyond its original function as a facilitator of commercial exchange. For them, a transnational trade network does not constitute an international economy. Aristotle, it is agreed, did not distinguish the factors of production (land, labor, capital and enterprise); he did not focus on the problem of scarcity or the concept of rent; and, in particular, he did not anticipate the birth of capitalism (Polanyi, “Aristotle”, 1957). Capitalism evolved out of several medieval developments, but chieﬂy, it is often argued, from the accumulation of “capital income” by landowners and merchants in the late Middle Ages. By then, for the ﬁrst time, there was a widely experienced desire to earn and possess money, because it was seen to be the key to the improvement of individual and collective welfare conceived in material terms. By this motivational criterion, capitalism as a historic phenomenon did not emerge out of the mists of antiquity until a new acquisitive spirit began to pervade society, a spirit no longer conﬁned to a small number of traders. Such a breakthrough in human development could not occur before the age of modern urbanization and secularization.

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For Werner Sombart, writing in the late 19th century, the “genesis of the capitalist spirit” is to be found in the collective pursuit of proﬁt by millions of small shopkeepers, craftsmen and other retailers, each of limited means but aware of the growing importance of the international market represented by foreign traders (Lehman, 1993). However, we are more familiar today with the hypothesis of Sombart’s more famous contemporary, Max Weber (1864-1920): that this transformation of the human spirit, which inspired the birth of capitalism, can be attributed to the 16th century revolution in religious thinking, rather than to the mere expansion of the merchant community. By the end of the 19th century, it seemed obvious to Weber that society had become dominated by the idea that the making of money was the ultimate purpose of life. Such a drive, he argued, should not be criticized as immoral, since sustained money-making demands a high degree of self-discipline. Indeed successful moneymaking is usually associated with hard work and a relatively frugal lifestyle, not with self-indulgence or idle luxury. The spirit of capitalism, he argued, was the product of the “Protestant ethic” associated with the Reformation (Weber, 1958). Despite the voluminous record of mercantile operations in Babylon, ancient Egypt, China and India, and the evidence of growing commercial aﬄuence in the towns of Europe, it is in early modern history, and only in the West, that capitalist activity became separated from “booty trade” dependent on conquest and from the coercive or socially privileged exploitation of labor tied to the land. Some of this breaking free from traditional beliefs, sentiments and social relationships is, of course, evident in Lutheranism. For Weber, however, the intensity of the capitalist spirit is derived from Calvinism and associated Puritan sects such as Methodism and Baptism. In particular, he found the energy of capitalist venture latent in the Calvinist doctrine of predestination, which maintains that only a few are chosen to be saved from eternal damnation. The emotional turmoil (the “feeling of unprecedented inner loneliness”) generated by that doctrine gave rise, he argued, to the justiﬁcatory psychology of personal accomplishment through wealth accumulation. Of the major religions, Weber believed, only Christianity and Judaism pivot on the tension between sin and salvation. It is this tension, he argued, that gives Christians and Jews “a basic transformative capacity which the Far Eastern religions lack, being more contemplative in orientation.” Hinduism, emphasizing the virtue of asceticism, was otherworldly, “directed toward escaping the encumbrances of the natural world rather than toward the rational mastery of the world itself ”, as associated with Puritanism (Lehman, 1993). Although Indian trade and manufacture reached a high level of development as Hinduism matured, the emergent caste system had eﬀectively nulliﬁed the possibility of a society-wide drive for gain as occurred much later in modern Europe. Similarly, Confucianist China enjoyed the beneﬁts of ﬂourishing trade, crafts and gilds, and satisﬁed some of the other preconditions of “economic rationalism”, such as the development of a monetary and legal system. But like Hinduism, Confucianism did not permit the incorporation of acquisitive drive within its ethic of conduct. Only the Calvinists and their theological cousins quested for the virtue of achievement in the eyes of their god.

Shaping of the Modern World (1492-1645)

The expansion of Europe in the 15th and 16th centuries was led by the Portuguese in Africa and Asia, and then by Spain in the Americas and the Far East. Before these ﬁrst Western initiatives in overseas trade and colonization there was no “world economy”, only a proliferation of largely closed trade-systems. In the Mediterranean, traditional trade centers like Damascus, Beirut, Alexandria and Cairo had for hundreds of years received overland caravans arriving from the periphery of the Indian Ocean. Further east, Malacca was the connector between the Muslim and Indian worlds in the west and the Chinese world in the distant east, which controlled maritime trade routes from Sumatra to the Philippines. Most of that overland trade was in luxuries and “imperial necessities”, and arguably not suﬃciently general in utility to support a “trade empire” (Bennassar, 1947) Wallerstein (1974) suggests that we distinguish four stages in the development of the “modern world system”, beginning with the period from 1450 to 1600 when the European “world-economy” rose, and survived the eﬀort of Emperor Charles V to convert it into a “world empire”. Such a theory is useful, he suggests, because it helps us to identify “core” and “periphery” in two distinct domains: the political/governmental domain of “world empire” and the economic domain of “world-economy”. For Wallerstein, capitalism had its origin in the trade patterns of the late 15th century, in an early phase of “agricultural capitalism”. Others, however, have dissented, insisting that real capitalism has its roots in the Industrial Revolution of the late 18th century, when exchange was replaced by a new, non-agricultural mode of production in which free laborers began to sell their productive capacity. Karl Marx, emphasizing production rather than market, acknowledged the introduction of merchant capital in the 16th century, but characterized the next three centuries as a period of transition to genuine industrial capitalism. By this reasoning, the feudal mode of production was not replaced by the capitalist mode until industrial capital dominated all other forms of accumulated wealth, including merchant capital (Pearson, 1988). In short, Marx dated world trade and the world market from the 16th century, and saw true capitalism evolving thereafter, as the modern history of capital – not capitalism – started to unfold. From the mid-15th to the mid-17th century Europe began to regain most of the commercial vitality it had lost during the plagues and other calamities of the 14th (Tuchman, 1978), but the quickening of pace was gradual. The gilds continued to hold most sectors of trade and manufacture in their vice, and the medieval laws on usury (the lending of money at interest) remained in force. Medieval writers, like their classical predecessors, had, on the whole, maintained hostility to the practice of earning interest on loaned capital, although the taking of interest was considered legitimate when it served a socially useful function. Commercial practice took a diﬀerent course. In the 16th century, as trade expanded, it became necessary to revive most of the credit institutions, such as mortgages and other kinds of loans and pledges, that had become a familiar feature of the ancient Greek and Roman economies. Some credit contracts had to be disguised as partnerships or foreign-exchange transactions in order to avoid the legal and religious sanctions against usury, but the age of overseas trade was about to take oﬀ. Deposit banking, another feature of the Roman era, had re-emerged in the late Middle

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Ages, and now, in the 16th century, the modern check began to evolve. At that time also the non-negotiable bill of exchange became an indispensable method of ﬁnancing large-scale trade. By then the money-lending monopoly held by the Jews in the Middle Ages had long since been broken, ﬁrst by the ﬁnancial houses of Siena, Lucca and Florence. These newly powerful institutions included the house of Medici, which became the chief ﬁnancier for the papacy. By the beginning of the 16th century, the Fuggers had become the leading moneylenders. Operating out of Augsburg, Antwerp and Venice, this family became immensely rich, playing a crucial role in the election of Emperor Charles V and in the ﬁnancing of other power-holders in Northern Europe. Yet one of the most famous philanthropists of the early modern era was a scion of that clan, Jakob Fugger, a hard businessman but devout Christian. Between 1516 and 1523 Jakob built 52 houses in Augsburg for poor Catholic artisans and day-laborers, setting an example of generosity and social responsibility that would eventually be followed on a grander scale by wealthy European and American capitalists of the late Victorian era. The combination of wealth accumulation and good works, consistent with the Protestant ethic, contributed to the legitimization of proﬁt and interest, which propelled the new international economy in the 16th century. Although ethicists continued to deplore the emergence of greed as a motivating force in the market-place, the dynamism created by new economic opportunities in this age of European expansion could scarcely be contained. Almost everywhere now, rulers and traders alike fastened on to these new opportunities, ensuring that public and private wealth would increase steadily together. As the rulers of the rising sovereign states took up heavier burdens, the costs of government escalated. The need for larger state revenues forced the rulers into a new identity as merchant-princes, or into a new political relationship with the wealthier members of the merchant community. Sadly, the patronage of merchant adventurers thirsting for proﬁts, in this age of increasingly secularized Christian society, persuaded the rulers to cast a blind eye on the excesses of the traders who enjoyed their protection. None of these excesses was more hideous than the taking and selling of defenseless African slaves. Slavery had, of course, a long continuous history in virtually all systems of civilization. In the West, as Thomas (1997) notes, slavery was one of the very few Graeco-Roman institutions to survive the collapse of the Roman Empire, although slaves had had a large part in its overthrow. In Gaul, runaway slaves formed a signiﬁcant component of invading armies. Indeed in those desperate times, men and women often sold themselves, or their children, into bondage in the hope of securing a better life. Throughout the early Middle Ages slavery had been an important feature of the Spanish economic system, and numerous contracts and treaties dealt with these as a part of early international commerce. By the mid-15th century, however, the intra-European trade in slaves, procured chieﬂy by Arabs and Turks, began to decline, just as the market for black African slaves was opening up, and a greatly expanded demand for cheap labor overseas oﬀered the reward of huge proﬁts. The most massively pernicious system of slavery in the modern era grew out of the Atlantic slave trade. That inglorious chapter in Western history began in August 1444, when a cargo of 235 black African slaves was landed on the southwest point of

Shaping of the Modern World (1492-1645)

the Algarve in Portugal. Prince Henry the Navigator watched impassively as he was presented with his “royal ﬁfth”, giving thanks, it is said, for the opportunity of “saving so many new souls for God” (Thomas, 1997). The new export trade in slaves was led chieﬂy by Portuguese traders, who displayed an extraordinary capacity for brutality in that sordid business. Their increasingly frequent and extensive incursions into the interior of West Africa would not, of course, have been possible without the willing complicity of the local potentates, who were happy to barter their captives wholesale to these foreigners, who knew how to strike a deal with weapons, commodities and baubles of their own. For almost 100 years, down to the mid-16th century, the Portuguese and Spanish settlements in the Atlantic islands took most of the slaves West Africa provided. But thereafter, the scale of the slave trade was transformed by mass movements of African captives – men, women and children – to the Americas. Although it is possible to overestimate the contribution of slave trade proﬁts to the capitalization of European ventures overseas, there is no question that the expectation of proﬁt made the trade “a great and contested prize” in the trade and diplomacy of the 16th and 17th centuries. Nor can it be denied that the slave trade had a profound and long-lasting impact on the evolution of New World agriculture and industry (Roberts, 1997). Aggressive Foreign Policy and the Diplomacy of Deceit. The history of commercial greed in the 16th and early 17th century was matched by a record of diplomatic deceit. As the modern nation-states came together in Europe, through the centralization of governmental authority and military power, we have our ﬁrst examples of “foreign policy” in action. It was the mark of a robust and eﬀective ruler of the 16th century to display a ﬁrm, even aggressive, foreign policy. In many countries of Western Europe, especially France, England, Spain and the Netherlands, the rulers knew that a bellicose foreign policy appealed to the new patriotic spirit of most citizens, though not always popular with the merchants dependent on a stable foreign market. Some modern historians have seen in this pattern a macho-approach to the 16th century concept of kingship. Certainly we can identify many Western European rulers of that era who were masculine to a fault in their foreign policy aspirations and operations: not least Ferdinand II of Aragon (1452-1516), the Emperors Maximilian I (1459-1519), and Charles V (1500-1558), Louis XII of France (1462-1515), Henry VIII of England (1491-1547), and Philip II of Spain (1527-598), to name the most obvious. They would create a powerful precedent for equally formidable, aggressive rulers of the 17th century, such as Louis XIV of France (1638-1715), but also a model for strong female monarchs such as Isabella of Castile (1451-1504) and, of course, Elizabeth I of England (1533-1603). Inescapably, in an age of extraordinarily willful and ambitious rulers, the muscular concept of statesmanship associated with 16th and 17th century Europe attracted retinues of willing ministers and other accomplices, no less unscrupulous than their sovereign. Sometimes, indeed, the chief minister was a good deal more aggressive in foreign policy than the king, as in the case of Cardinal Richelieu (1585-1642) and his proud but devout, principled, and much younger, master, Louis XIII of France (16011643). Frequently, ambassadors were sent on missions to spy (Gammon, 1973).

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As we have seen, it was the Italians in the 15th century who laid the foundations for permanent diplomacy. Severe judgments on the “Italian system” have been rendered by modern scholars, usually on the ground that its shortcomings can be attributed to the malign inﬂuence of Nicolo Machiavelli, the creator of the doctrine of raison d’etat (Nicolson, 1954). Yet the Italian system continued until it was replaced by the “French system” in the 17th century. Credit might be given to Ferdinand II of Aragon in the 16th century as the ﬁrst non-Italian ruler to establish a regular diplomatic service, but his contemporaries agreed with Machiavelli’s assessment of Ferdinand as a master of the diplomacy of deceit, who was characteristically reluctant to entrust his own diplomats with the task of implementing his mendacious policies. Machiavelli himself seems to have valued treaties as an important instrument of statecraft, even if regarded amorally as part of a strategy of deception made necessary to secure the interests of the state. The circumstances of his time and place in history might justify his unhappy perception that states were locked into a more or less permanent condition of war. His realist advice to his Prince was that it was necessary to achieve a good reputation with other princes, and that a record of abiding by one’s treaties was likely to contribute to that end (Berridge, ‘Machiavelli’, 2001). Unfortunately, his Political Observations have left the impression that he believed treaty obligations could, if necessary, be swept aside on the legal ground that a treaty, like a civil law contract, is based on the assumption of things remaining the same (clausula rebus sic stantibus) (Schwarzenberger, 1984). To reduce the risk of expediency overwhelming the bindingness of a treaty (pacta sunt servanda), a treaty would have to spell out unambiguously the parties’ intention to give it a permanent character. This, of course, would have been incompatible with Machiavelli’s views on the paramountcy of political ﬂexibility. The devious character of 16th century European diplomacy should not obscure the fact that many diplomats of that era were, despite their trade, able and interesting ﬁgures in their own right. Don Diego Hurtado de Mendoza (1504-1575) was the most brilliant son of a distinguished Spanish family. Fluent in Greek as well as Latin and Arabic, he translated Aristotle’s Mechanics from Greek into Spanish, wrote poetry and history, and maintained correspondence with noted humanists in Italy, where he resided for ﬁfteen years (Spivakovsky, 1970). Between 1539 and 1547 he served as the Spanish ambassador to Venice, and in the next ﬁve years in the same capacity in Rome. Although Mendoza’s methods in diplomacy have been criticized as Machiavellian, and he has been characterized as an imperialist propagandist, he had little respect for Charles V’s quest for Christian universality and perhaps even less for the ambitions of Philip II (Nader, 1979). Curiously, he sits in our modern imagination as a cross between Machiavelli and Erasmus, whom he both admired. The low state of 16th century diplomacy was exempliﬁed in the notorious Mendoza aﬀair. Don Bernardino de Mendoza (c. 1540-1604) was the Spanish ambassador in London, and a disturbingly zealous religionist (Kamen, 1997). He was unrelated to Don Diego, who had an elder brother of the same name. In 1580 the ambassador was found to be engaged in the Throckmorton plot to kill Queen Elizabeth and replace her on the throne of England with her Catholic cousin, Mary Queen of Scots. Elizabeth’s ministers sought quick legal advice from a number of civil law jurists, including

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the famous Gentili. The consensus was that Mendoza could not be put on trial in an English court because of his diplomatic status. The plot to assassinate the English sovereign could not justify any deviation from the ancient practice of granting total immunity to visiting ambassadors (Nussbaum, 1954). We can also ﬁnd a few examples of ministers of the 16th century who tried to follow a more moderate, more honorable, and more peaceful course of foreign policy than their master. One such minister was Cardinal Wolsey (c. 1473-1530). The young Henry VIII was still a month short of his 18th birthday when he succeeded his father on the English throne in April 1509. Henry had above-average intelligence and possessed a variety of minor talents, though hardly the intellectual equal of his daughter Elizabeth. In his childhood he was carefully educated and occasionally exposed to the great men of the day. At the age of eight, for example, he met the two leading humanists of Northern Europe: Desiderius Erasmus of Rotterdam (c. 1466-1536) and the saintly Sir Thomas More (1478-1535). (Williamson, 1964) In his youth, Henry was apparently not uninﬂuenced by the benevolent vision of such men, but before the end of 1511 he had committed himself to a policy of war with France. Thereafter, he ﬂuctuated between moods of violent energy and depressive withdrawal, but mostly followed the dictates of his aggressive nature. Largely detached from ordinary virtues, Henry can be caricatured as “a remorseless incarnation of Machiavelli’s Prince”. However, in the early years of Henry VIII’s reign, Tudor foreign policy was moderated by the paciﬁst inclinations of Wolsey, who favored a revival of Henry VII’s strategy based on a friendly understanding with France that would be guaranteed by the other monarchs of Europe. Brieﬂy, it appeared that Wolsey’s peace project had prevailed in the Anglo-French Treaty of London, which he had secured in 1518 along with collateral signatures from 24 other rulers, but this idealistic treaty of peace and friendship failed to survive the rival ambitions of the age (Scarisbrick, 1968). To a ruler as willful as Henry VIII, foreign policy was essentially an avenue for the pursuit of personal and national gains that could not be achieved at home. The art lay in choosing the right initiatives at the right time to satisfy a variety of motives. Purposes to be served included territorial independence, dynastic entitlement, defense against invasion, stability of rule at home, national economic advantage, personal ﬁnancial aggrandizement, ideological commitment, or some other personal conception of “national glory” (Crowson, 1973). Against such a background of selﬁsh and greedy interests, professional diplomacy based on peaceful and cooperative intentions could not ensue. Students of the 16th and 17th century are often vexed by the number of loveless dynastic marriages arranged between royal houses, an early modern alternative to professional diplomacy. The treaties engineered between the new states of the Christian West were mostly “demonstrative” in purpose, devoted to securing peace and professing friendship. Accordingly, in an age of rampant deceit, treaty-making was usually a short-lived tactic of political expedience, narrowly construed. It was far diﬀerent in spirit and purpose from the making of international agreements in modern times, which are usually serious commitments to collaboration between the parties. Among 16th century rul-

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ers there was very little sense of a duty to cooperate, or of the sacred nature of treaty obligation (pacta sunt servanda). More interesting to modern international lawyers is the early modern tradition of “capitulations”. These instruments were so called because the examples pioneered by Turkish sultans from the 10th century A.D. were divided into chapters (capitula). By such treaties, one state or ruler conferred on the other the privilege of exercising extraterritorial jurisdiction over nationals of the latter who were resident or otherwise present in the former. Capitulations became popular and remained important for centuries even down to the early 20th century, when they were succeeded by commercial and consular treaties. Typically, these agreements were unilateral in form, lacking the reciprocity that normally characterizes a transaction based on mutual beneﬁt. On its face, the capitulation signed by the sultan conferred on the other party, usually the local Christian trading community, the right to be subject to its own laws in the sultan’s territory, thus saving the sultan the burden of administering justice to foreign merchants. To the modern eye, such a conferral appears like a surrender of the host state’s sovereignty, but it was, of course, motivated by the sultan’s interest in Western products. Some legal formalists have been bothered by the absence of “consideration” in such a “contract”, wondering about its enforceability, if not its validity. Nussbaum (1954) has surmised that this long-established resort to unilateralism in treaty practice might have appealed to the Moslem ruler’s “feeling of grandeur and generosity”. From a modern functionalist perspective, the capitulations system was an enlightened and ingenious method of creating a permanent or long-lasting legal regime to encourage and stabilize trade between the two countries by recognizing and trusting the foreign trade community established by the non-host country. Under the arrangement, the head of the foreign trade settlement, was designated “consul”. Generally, consular powers conceded under the capitulations were judicial as well as administrative, and occasionally they extended to criminal proceedings. The capitulations system of “consular jurisdiction” that emerged in the early modern era was designed to exempt certain classes of foreigners from the laws of the host state, in whole or in part. It was a new approach to the treatment of aliens that granted them the right of access to their own courts. As such, the system could be analogized with earlier institutions designed to create diﬀerential legal arrangements for certain categories of residents: for example, the Roman system of praetorian law intended speciﬁcally for foreign traders as described in Chapter Four, the emergence of the medieval law merchant, and the exemption of the clergy from secular justice as referred to in Chapter Five (Munch, 1986). Under the Ottoman Empire, the system was continued. Capitulation treaties were signed with Genoa in 1453 and with Venice in 1454. In 1536 a similar instrument signed between Suleiman I of Turkey and Francis I of France became the model for later Turkish capitulations with other powers. In addition to allowing the French to trade in Turkey, it granted them individual liberty, including the freedom to practice the faith of their choice. Later, French extraterritorial jurisdiction under that treaty was extended to all other foreigners in Turkey, and then, after 1607, only to those not

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represented at Constantinople by their own ambassador. As we shall see later, the system of capitulations was to prove useful, but not always equitable, in other lands. Here, then, is an institution of pre-modern and early modern diplomacy and treatymaking that endured for almost a millennium. It was fair and eﬀective, based astutely on mutual interest, but freed from the kind of formalistic artiﬁciality that sometimes has weakened the cogency of legal formalism. It was introduced by Muslim rulers, and endured through eons of Western turmoil, greed, deceit, and obsession with absolute sovereignty. The Challenge of Humanism. The ideal of civic benevolence took seed in the minds of the philosophers of classical antiquity, and had some inﬂuence on the best of early rulers. In medieval Europe, religious ethicists debated the need for public virtue. But the modern concept of good government owes most to the revival of classical thinking and the new tradition of humanism that it inspired in the late Middle Ages and the early modern era. The term “humanism” has served many purposes over the ages. It was used by the classical writers of Greece and Rome to emphasize the superiority of human attributes over the bestial, or of humane behavior over barbarian. It was a mode of reference to distinguish the secular domain from the divine, or the rational from the mystical. In Renaissance Europe, a humanist was an intellectual objector to the belittling of the human condition, which was inherent in medieval Christianity. As Braudel (1993) suggests, humanism since then has been “always against something: against exclusive submission to God; against a wholly materialistic conception of the world; against any doctrine neglecting or seeming to neglect humanity; against any system that would reduce human responsibility”. Braudel quotes Augustin Renaudet, for whom humanism “recognizes and exalts the greatness of human genius and the power of its creations … What is essential remains the individual’s eﬀort to develop in himself or herself, through strict and methodical discipline, all human facilities, so as to lose nothing of what enlarges and enhances the human being … Such an ethic based on human nobility requires of society a constant eﬀort to embody the most highly perfected form of human relations: an immense feat, an immense cultural achievement, an ever greater knowledge of humanity and of the world. It lays the foundations of individual and collective morality; it establishes law and creates an economy; it produces a political system; it nourishes art and literature”. In this large sense, we have been searching world history for the early seeds of humanism, for it is that ethic which has always supported the growth of international law. Arguably, the highest hopes for a universal system of law, which would have to be neutral on all matters of religious belief, would be most likely to be realized if international lawyers of all faith were willing to accept secular humanism as the ethical foundation of their science: the ethos that places man, rather than God, at the center of human aﬀairs. Historians of humanism have traced the “rise and fall” of the humanist tradition several times over. By certain criteria, for example, Erasmus has been hailed as the “prince of the humanists” and the “last of the great humanists”. Others exalted as

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humanists have included contemporaries and successors such as Machiavelli (14691527), Rabelais (1494-1553), and Montaigne (1533-1592). But the larger truth is that the line of humanist thought and sentiment has always been present, at every stage of intellectual and moral development, waiting to be “re-discovered” and re-applied, in protest against the dangers and follies of the day. The 16th century was special in the history of humanism because it was then that Europe re-discovered the humanist contact with classical antiquity. Above all, the revival of Greek learning re-introduced more ﬂexible, less dogmatic ideas in history, philosophy, and ethics. It created an innovative intellectual climate that encouraged development of the sciences independently of matters of religious faith. What evolved was a renewed Western conception of man as a rational and socially conscious being. It moved lay scholars and scientists outside the Church to believe that they had a creative, essential role to play in human and social development. What began as an intellectual revival, which accepted the relevance of the distant pagan past, grew into a political, and eventually religious, awakening that weakened the moral authority of the Church. Medicine, mathematics, and science in general ﬂourished, challenging the legitimacy of clericalism. In England especially, the anti-clerical movement owed much to the growth of law, the rising inﬂuence of the institutions and jurists of the common law (McLean, 1972). By the early 16th century, the age of Martin Luther, humanist studies were sustained within an increasingly critical scholarly community, among scholars who still had no ambition to divide the Christian spiritual community. Three Reformists, who were friends as well as like-minded humanists, might be considered representative of that era: John Colet (c. 1466-1519), Desiderius Erasmus (c. 1466-1536), and Sir Thomas More (1478-1535). Colet was an Oxford theologian, who had also studied in Italy and France. As a classicist and Christian humanist, he exulted in the 1516 publication of the Greek version of the New Testament produced by Erasmus, whom he invited to Oxford to meet his circle of humanist colleagues. He adopted Neoplatonism as his philosophy, and used pagan ethics in his condemnation of the ecclesiastical abuses of his day. Indeed his denunciations of the sins of the clergy brought him close to the charge of heresy (McLean, 1972). He died before Luther forced the issue. Of much wider repute and inﬂuence was the great Erasmus himself. Throughout his long life, he seems to have been troubled constantly by his illegitimate birth to Margaret, a physician’s daughter, as a result of liaison with Roger Gerard, a priest. He was the product of a union of science and faith. Few today are likely to challenge the status of Erasmus as the preeminent Christian humanist of his age. Like other humanists, he was, in the words of Ernest G. Rupp, “aﬀronted by the dogmatic theologians, especially of religious orders, with their party cries and intolerance and their violence and wooden hostility to new methods”. He was also one of the most cosmopolitan intellectuals of his age, living for extended periods in England, France, and Belgium and visiting in Italy and Germany. His many visits to England did not endear him to the English, “their barbarism, their weather, their beer”, but he was an admirer of Colet, and cultivated an even closer friendship with the younger More.

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Erasmus was a devout humanist, who wished that “good letters should ﬁnd that Christian character which they have lacked in Italy, and which …ended in glorifying pagan morality”. Despite his ambivalence, he made enemies easily in an age that could mistake his satire for levity and suspect him “to be more skeptical than he dared appear”. Yet no scholar of the day was more renowned than the author of the Praise of Folly. We might hold in our imagination the picture of Erasmus drawn by Rupp. “Finicky, peevish, spiteful, in his early years sycophantic to a nauseating degree, almost pathologically thin-skinned, he was saved by his humor from pomposity and from undue preoccupation with the importance of being Erasmus. But the judgment of P.S. Allen remains true: Erasmus was truly great, and the clue to his greatness lay in the combination of brilliant intellectual gifts with absolute sincerity and enduring purpose”. As much as any single scholar, Erasmus is the heroic father-ﬁgure of modern intellectual history. Thomas More, son of a distinguished judge, enjoyed the early patronage of John Morton, the Archbishop of Canterbury. At Oxford he studied theology under John Colet, as well as Latin, Greek and literature, but he bent to his father’s determination to make a lawyer of him. Though he was essentially a contemplative, devout, indeed saintly, man, family expectations propelled More into a very conspicuous, and ultimately dangerous, public career.. When Cardinal Wolsey failed to procure the annulment of Henry VIII’s marriage with Catherine of Aragon, More succeeded him as Lord Chancellor in 1529. In that capacity, he worked with unparalleled vigor under the heaviest burdens, accessible to all petitioners: as Henry W. Donner notes, “a righteous judge and true friend to the poor”. If personality were all, More’s charm and wit might have kept him safe from his tempestuous sovereign, for Henry delighted in More’s urbanity. But Henry’s irresistible ambition to divorce himself and England from the Church of Rome ensured More’s ruin. Although reluctantly willing to acknowledge that Henry’s marriage with Catherine was legally voided under the Act of Succession (1534), More refused to take the oath required because it entailed repudiation of the Pope’s supremacy. In April of that year he was imprisoned in the Tower, charged with treason like so many others in the paranoid Tudor era (Smith, 1986). After a lengthy trial by jury, he was found guilty of treason for refusing to aﬃrm the king’s supremacy and denying Parliament’s power to declare him head of the reconstituted church in England. In July he was beheaded, lamented by his friends, and hailed by Colet and Erasmus as England’s only genius. Though immortalized as a martyr to his Catholic faith, More is even more renowned today as the author of Utopia. This famous satire describes a city-state governed entirely by reason, rather than by greed, egoism and deceit as in the real world of Christian Europe. Posterity is left to draw the boundaries between jest and political protest in this, the most inﬂuential of all humanistic works, which in its own way was the foundation of modern “protestant” literature.

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The Code of Honor. Presumably the idea of honorable conduct is of very ancient origin. It was certainly present, if not deeply rooted, in early diplomatic history. The “classical” records of both East and West reveal a degree of concern for honorable state practice, as determined by the standards of the day. In the Middle Ages there was a continuous thread of scholarly commentary on the importance of honor in leadership and among civilized rulers. Somehow, the 16th century cruelties and other excesses that we ﬁnd so repellent today were not then seen to be incompatible with the emergence of a code of honor. Nowhere was this anomaly more salient than in the culture of Spain, Europe’s leading power and the chief oppressor of the peoples of the Americas. In early modern Iberian culture – encompassing Portuguese as well as Spanish society – there were two complementary kinds of honorable standing: the honor of elite status and the honra of virtuous conduct. Those of upper-class birth and breeding, in a sharply hierarchical system not unlike that of Hindu society, grew up endowed with the former, but honra, based on personal reputation, could be won, enhanced, or squandered. The aristocratic status of honor was not narrowly conﬁned, since the super-elite social class of Spain quadrupled between 1500 and 1800 as a proportion of the total Spanish population (Burkholden, 1998). Most citizens, conﬁned to menial occupations, were denied the possibility of possessing honor: tailors, carpenters, farriers, stonemasons, smiths, barbers, cobblers, painters, shopkeepers, innkeepers, moneylenders, scribes, and public attorneys. Always strong in Spanish society, the cult of honor was even stronger in colonial Spanish America. In the colonies of the New World, traditional Iberian ideas of social discrimination were reinforced by divisions of race, class and sex, which were regarded as natural, and indeed as divinely prescribed. Such a pattern of ordering, comparable perhaps with the US social structure of the ante bellum South, was deeply embedded in the cultural psyche. More than just a set of rules, it was a system of social values, based, it has been said, on “a desire to be envied, to be exalted above others” (Johnson and Lipsett-Rivera, 1998). The Spanish cult of honor in the 16th century, and in the eras that followed, can be compared with the medieval cult of chivalry. Both reﬂected male upper-class ideals of personal behavior such as courage, honesty, courtesy, gallantry to women, and loyalty to superior authority, linked with the institution of allegiance. Even if daily social reality was reﬂected more in the breach than in the observance, the code of conduct had a life of its own. Reﬂections. The Spanish tradition of honor is only the most conspicuous example of honor-based idealism, one that extended to the whole spectrum of Mediterranean cultures. In modern writings, honor, as invoked throughout much of Southern Europe and beyond, has been described as “the value of a person in his own eyes, but also in the eyes of his society. It is his estimation of his own worth, his claim to pride, but it is also the acknowledgement of that claim, his excellence recognized by society, his right to pride” (Pitt-Rivers, 1965). But if the tradition of honor as the fundamental social virtue can be shared across cultures, can it be seen as a major contribution to the model of civic benevolence in modern international law? Would the notion of

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the king’s honor become converted into the statist idea of national honor? Was de Tocqueville acute in observing its obsolescence with the eclipse of aristocracy? Or in the modern era of American-style democracy, have we found a way of incorporating a universally shared concept of honor as one of the unarticulated values of international law and diplomacy? These questions must be reserved for later chapters. In the meantime, we seem to see in the early modern period of Western history a degree of intellectual admiration for the role of honor in statesmanship, and thus in inter-state relations (Hertz, 2004). Machiavelli “deplored Christianity’s emphasis on humility and heaven. He instead urged individual virtu (manliness, courage, pluck, fortitude, boldness, steadfastness, tenacity) to gain honour and glory – perhaps man’s greatest pleasure”. Jean Bodin valued the social reward of honor more highly than that of proﬁt. As cited in Hertz, Michel de Montaigne (1533-1592), the French essayist, shared Bodin’s perception of the motivational power of a reputation for honor. “Of all the delusions in the world, the most fully accepted and most universal is the seeking for fame and glory, which we espouse to the point of giving up wealth, repose, life, and health, which are real and substantial goods, to follow that airy phantom …” In our own day, greed, rather than the desire for reputation, is often accepted as a driving factor in human aﬀairs. In institutional form, greed sustains the modern economy, and keeps the rich and poor apart. The United Nations may seem insufﬁciently motivated to address the social problems of poverty and disadvantage. The WTO and IMF are often accused of reﬂecting and supporting the process of wealth accumulation directed by giant transnational corporations, which might be considered modern counterparts to the traders and trading companies of the 16th and 17th centuries. Despite extraordinary advances in regulatory techniques, the domain of international trade and investment can be accused of prospering through the legitimization of capitalist greed, even if the contemporary principles of transparency and accountability are becoming internationally acceptable. Foreign policy is not as blatantly mendacious as it once was, because the eyes and ears of world society are trained on the actions and pronouncements of national leaderships and their relationships with one another. Moreover, diplomacy has long since been professionalized, maintaining international standards despite the constant temptation for diplomats and legal advisers to serve their government’s narrowly construed sense of national interest. In the present age, when we are so frequently witness to terrors devised by fanatical religionists, it seems more important than ever to value the contributions of secular humanists to the growth of international law and diplomacy. The legacy of Erasmus, More, and other giants who followed the path of moderation and tolerance, is a priceless contribution to modern civilization.. Piracy, Privateering, and Anarchy at Sea Questions. In 1500 the possibility of an eﬀective world order based on a shared rule-of-law system was perceived by very few. Within the evolving nation-state, rebellion was the most feared threat. The primary statist value was the maintenance of

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power and authority. Ruthless measures were taken to put down dissenters. But lawenforcement capacity was still largely conﬁned to the land. At sea, law and morality were equally loose. Would the new rewards available from overseas discovery, trade and settlement in the 16th century lead to success in controlling the age-old menace of piracy? How would the dominant states respond to unprincipled adventurers at sea? Would violence in the acquisition of overseas wealth be punished? Would the early modern sovereigns ﬁnd a way to check the threat of anarchy in the sea-lanes of the 16th and 17th centuries? Piracy. For hundreds of years scholars have tried to clarify the nature and extent of piracy at sea and to understand the origins of the problem. Who were these men (and sometimes also women and children) who seemed to lead a sea-based life of plunder? Were they all as desperate and violent as they have been depicted by contemporaries and unsympathetic historians? Were they just bandits or robbers? Or should we take the more charitable view that many, or most, “pirates” were driven into the secondoldest profession by the lack of alternative means of survival. Were many of those described as pirates merely the residents of marginal coastal communities dependent on smuggling? To what extent is the record of piracy distorted by the political ambitions of the day, or colored by the literary imagination of posterity? There seems to have been no period in maritime history when piracy was not a concern to seafarers, traders, and rulers. Yet the seriousness of the problem has varied considerably with the period and the region. In primitive and classical antiquity, resort to piracy seems to have peaked when ordinary seafarers found it diﬃcult to survive through ﬁshing and lawful maritime trade. “Sea rovers” are frequently referred to in the Odyssey, and, in his history of the Peloponnesian War, Thucidides describes organized piracy as an ancient way of life (Rubin, 1989). Often there was no clear boundary between piracy and legitimate commerce. The Phoenicians excelled in both simultaneously. In the 3rd century B.C. the traders of the Adriatic welcomed the Romans because of their eﬃciency in suppressing the piracy practiced by the Illyrians in that region. However, piracy remained common in the Mediterranean throughout the period of Carthaginian and Roman dominion at sea (de Souza, 1999). Julius Caesar was apparently captured by pirates as a young man, and held until a ransom was secured from his wealthy family. His growing reputation for courage and toughness was reinforced by his subsequent resolve in taking revenge on his captors, who were hunted down and cruciﬁed. Even more convincingly, the highly competent Pompey, Caesar’s rival, earned the admiration of Rome by taking only three months, out of the three years provided, to crush a particularly threatening eruption of rampant piracy. In the pre-modern era, no pirate people was more feared or more successful than the Vikings, whose raids and conquests in the North Sea and adjacent waters, between 800 and 1050, have acquired the status of legend. Despite their record of piratical conquest, the Vikings proved also to be eﬀective settlers, bringing legal system, eﬃcient rule, and the beneﬁts of overseas trade to less warlike peoples. However, as we have seen, piracy in the Baltic continued to pose an intolerable threat to commer-

Shaping of the Modern World (1492-1645)

cial shipping in the Middle Ages, forcing the Hansa towns of that region to establish their famous League in collective self-defense. North African piracy also had ancient origins. In the 16th century Mediterranean piracy gained in power and organizational eﬃciency through Barbarossa (“Redbeard”) (Khair ed-Din) (d. 1546), the famous Barbary pirate king. With considerable skill, Barbarossa united Algeria and Tunisia as a single military state under the Ottoman caliphate, and created something akin to a corporate mini-empire almost entirely on the basis of his captains’ booty. Barbary piracy was to ﬂourish, despite numerous attempts to suppress it, well in the 19th century. Piracy has also been a constant motif in Chinese history. Before the 15th century the civic virtuosity of the Chinese was demonstrated almost entirely on land. It has been surmised by some historians that in earlier times the sea was considered to be beyond the reach of the Son of Heaven, a naturally ungovernable domain. This view of the sea as a hostile environment would certainly be consistent with a long history of Chinese imperial frustration in eﬀorts to check piracy in China’s coastal waters. The problem of “Japanese pirates” (Wo-k’ou) had become a matter of grave concern long before the Ming dynasty (1368-1644) (Reischauer and Fairbank, 1958). Despite the use of modern methods of research focused on the 16th century, it is still highly uncertain whether the Wo-k’ou were really Japanese, and whether they enjoyed the protection of the local dainyo. However, as So (1975) shows, there is little doubt that the problem was suﬃciently serious that T’ai-tsu, the founder of the Ming dynasty, was compelled to build a long line of forts to protect the Chinese coastline from Shantung to Fukien; that the problem of the Wo-k’ou had reached critical proportions by the end of the dynasty; and that the traditional association of piracy with Japan has contributed to the entrenchment of anti-Japanese sentiment in China and Korea, further embittered by more modern Japanese aggression in the region. In northern Europe, the threat of piracy was so constant in the late Middle Ages that it became a matter to be dealt with in the law courts. In many countries of that region the term “admiral”, or its equivalent, was applied to an important oﬃcer of the crown, who was administratively responsible for port security and the protection of shipping, before it took on its modern naval ﬁeld-operations connotation (Herman, 2004). In 14th century England the mandate of the admiral included the control of piracy and the punishment of violent oﬀenders at sea. As the power of civil jurisdiction was added, the High Court of Admiralty came into being in the 15th century. The seriousness of the problem of piracy was also reﬂected in 16th century diplomacy. The most common issue in civil proceedings was the distribution of “prize” taken at sea. In 1517, for example, England and France agreed by treaty to establish separate courts speciﬁcally to hear complaints arising from violent crimes committed at sea, but nothing came of this early international eﬀort to deal with a universal concern (Nussbaum, 1954). However, the Ciceronian notion had taken hold that pirates were outlaws, enemies of the human race (hostes humani generis). Accordingly, all vessels regardless of nationality were legally free to capture pirate ships and appropriate the booty found on board. Piracy might, then, be regarded as the ﬁrst example of an “international crime” (Gold, 1981). But the matter was greatly complicated in the 16th century by the emergence of privateering.

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Privateering. A privateer was a privately owned, armed vessel commissioned by the state to prey upon the vessels of a hostile or enemy state. Equipped with a “letter of marque”, a privateer was authorized by the commissioning government to make “reprisals” (i.e. acquire gainful reparations) for speciﬁed oﬀences in times of peace and as combat in times of war. The oﬃcers and crew of a privateer had a legal right to share in the “prize money” realized from captured ships. In the 16th century, the dominant powers of Europe allowed – or even encouraged – their seafarers to engage in privateering. In the “prize courts” of these countries the legal need for precise terminology created diﬃculties that often overstretched the resources of judicial sophistication. It was often extraordinarily diﬃcult to delineate the line between piracy and privateering. Neither concept could acquire the precision of a legal “term of art”. The core of each was overwhelmed by the penumbra of uncertainty. Even on a single voyage devoted to forcible acquisition, the same vessel could be regarded as engaged in piracy on one occasion and engaged in privateering on the next, depending on the nationality of the vessel or cargo seized. Similarly, legitimate traders, normally engaged in the carriage of goods, were caught up in the frenzy of commercial greed, unable to resist the lure of proﬁts through privateering. Some started out as sea-faring traders but fell into moral decline, while others who began their career in dubious ventures became rich and reputable. Some privateers, verging on piracy, have come down to us as naval heroes. Privateering emerged as the product of a new breed of tough men motivated by the prospect of personal gain at sea, in an age when the international community still had no institutions or practices to subject such activities to reasonable constraints. The regulation of shipping was still in its infancy, and the new ethic of gain drove many of the most energetic to the outer bounds of law and morality. The most glittering rewards for the pirates and privateers of 16th century were the Spanish treasure ﬂeets sailing each year from Mexico to Spain, carrying immensely valuable troves of gold and other precious cargoes. Throughout much of the century, the English, French and Dutch were constantly challenging the Spanish claim to political and military supremacy. Since all equated power with commercial and territorial gain, outright hostility to Spain often had to be balanced by consideration of the beneﬁts of commercial relations. The sovereign’s dynastic ambitions created a constant ﬂux in the 16th century politics. The oﬃcial foreign policy of the day was not always compatible with the interests of the merchants. Privateering, therefore, tended to thrive, ambivalently, in the ample gray zone of 16th century statecraft and public policy, where dynastic ambition, national defense, patriot sentiment, and commercial proﬁt did increasingly begin to converge. Today we may be surprised by the easy transition from piracy or privateering to national honor. Part of the explanation lies in the fact that the birth of aggressive foreign and commercial policy in the emerging European powers occurred before the development of large naval ﬂeets. It was only in the 16th century that the concept of a modern navy, capable of projecting the power of the state overseas, began to jell. In the mid-16th century Spain was the closest to the status of the dominant European power chieﬂy because it was the ﬁrst in the region to possess a state-controlled navy

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of warships capable of outgunning its enemies at sea. Since the treasuries of England, France and the Netherlands could not immediately match the Spanish, resistance to Spain, and to Spanish Catholicism, depended on the sharing of public and private maritime skills and resources. Private warships were needed to close the gap, and public heroes would have to be made of vagabonds. Of the many who crossed the wavering line – between heroes, merchant adventurers, privateers, and pirates – two might be singled out as prominent examples of that new rough breed of mariners who would prove their value to the state. Sir John Hawkins (1532-1595). The mid-16th century saw the rise of Plymouth and Bristol as leading English ports, rivaling London as commercial centers. The new cross-Atlantic trade was certainly a major factor in their rise to prominence, but so also was the threat from Spain and its formidable navy, for heightened Tudor concerns over national defense put a premium on port development in the west country. It was from Plymouth especially that English merchant-pirates sailed out to make money by fair means or foul. Preeminent among these fearless seafarers was the Hawkins family. William of that household had grown from a brawling youth into a daring merchant-adventurer. Sailing the Pole of Plymouth in 1527, he was the ﬁrst foreign master allowed to stop in the ports of the West Indies, where the Spanish insisted on their right of trade monopoly. To the men of Plymouth, the Spanish monopoly had no legal authority they were bound to respect. In the eyes of Hawkins there was money to be made through a regular trading network between Africa and the New World. By 1532 William had become suﬃciently rich and respectable to become major of Plymouth. His elder son, William, followed his father’s career as a successful merchant seaman and as a threetime mayor of the town of his birth; and one of the grandsons, Richard, was to earn renown as a naval commander in battles against the Spanish. But the most famous by far of the Hawkins family was the younger son, John. Like his father, John started as a drunken brawler in the streets of Plymouth. After killing a man in the heat of blood, he was pardoned on the ground of self-defense. Perhaps on the strength of the family’s reputation, John was ﬁnanced in 1562 by a syndicate of traders and investors from London and Plymouth to seek out the lucrative returns that could be won in the slave trade. A man of moral ﬂexibility such as John Hawkins did not ﬂinch at the opportunity to proﬁt from this sordid business. The expedition had Queen Elizabeth’s approval, although she seems not to have fully understood Hawkins’ intention. She is reported to have presumed that the slaves would not be carried oﬀ without their free consent, for such a measure” would be detestable and call down the vengeance of Heaven upon the undertakers” (Thomas, 1998). In his ﬁrst voyage, capturing and carrying 300 slaves from Sierra Leone to the island of Espanola earned him and his investors a lot of money (Kelsey, 2003). He had calculated correctly that the Spanish settlers would ignore the royal decree banning trade with foreign pirates. They would be eager to acquire fresh slaves at a fraction of the oﬃcial rate of 100 ducats per head (Herman, 2004). As the ﬁrst English slave trader, Hawkins aroused the hostility of the Portuguese, who had pioneered the exportation of Africans across the Atlantic. He had also outraged the Spanish with his

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infringement of their trade monopoly in the New World. His unconcern no doubt owed much to his knowledge that the syndicate behind him included members of the London mercantile elite, mostly ardent Protestants like himself. It was a privilege to proﬁt at the expense of Spanish Catholics: to make money and serve God at the same time. He returned with riches in the form of gold, silver, sugar and hides. His second voyage, undertaken in 1564-65, was backed by an even more powerful group, some publicly known and others anonymous (Williamson, 1927). The former included Queen Elizabeth I, who lent him the warship Jesus of Lubeck. Others were the Queen’s favorite, Robert Dudley (the Earl of Leicester), William Herbert (the Earl of Pembroke), and William Cecil, the Queen’s ﬁrst minister (soon to be Lord Burghley). The booty from this second expedition to the Caribbean, including the ﬁrst shipments to England of tobacco and potatoes, was even more proﬁtable, returning perhaps as much as 60 on the capital invested, as Hawkins boasted to the Spanish ambassador in London (Kelsey, 2003). For this accomplishment, he was later knighted, taking as his crest a black female African (Thomas, 1998). “Not overly concerned with truth or morality”, John Hawkins accepted a third slaving commission in 1569 with a ﬂeet of six vessels. This time, over Spanish protests, Queen Elizabeth supplied two of her own warships, once again the Jesus and also the Minion. After selling his slaves in the Caribbean, Hawkins was forced by lack of water and the need for repairs to seek out the port of Vera Cruz at San Juan de Ulloa. After he gained permission to enter, the Spanish treasure ﬂeet arrived unexpectedly from Spain, with orders from the king, Philip II, to stop the English pirate Hawkins. Treachery ensued. England and Spain were not at war. Yet all but two of the English ships (the Minion and the Judith) were captured or sunk. Hundreds of English seafarers were killed or captured. Some were tortured to death, enslaved, or left to rot for years in a Mexican prison. This disaster certainly contributed to the deterioration of Anglo-Spanish relations thereafter, though the outcome also owed much to the threat of Spanish invasion by the Duke of Alba, who was engaged in an unavailing eﬀort to suppress the Dutch struggle for independence. The defeat at San Juan de Ulloa in 1568 also marked the end of John Hawkins’ career in slaving. He married well, into the family of Benjamin Gonson, Treasurer of the Navy, who recognized Hawkins’ administrative talents and “a grasp of policy uncommon among skilled seamen of his day” (Unwin, 1960). In 1577 he succeeded his father-in-law as Treasurer of the Navy. Later, as Comptroller, Hawkins was chieﬂy responsible for building the Queen’s ﬂeet with stronger armory and constructing a faster type of galleon, which would later prove a match for the more cumbersome warships of the Spanish Armada. Sir Francis Drake (c. 1544-1596). Serving as an ordinary, able-bodied seaman on John Hawkins’ second slaving expedition in 1564-65 was a young man destined for even higher renown than his commander. Francis Drake was born of farming stock. His father, Edmund, had decided in mid-life to become a priest, whether for spiritual reasons or to secure a position under the rigid Catholic regime of Mary Tudor. Later he swung over to the Protestant side, which might suggest a degree of theological ambivalence but was not so unusual in those changing times. Most historians treat

Shaping of the Modern World (1492-1645)

Drake as a “kinsman” or “cousin” of John Hawkins, for as a boy he was billeted for training with the Hawkins family, but persons so appointed in the manner of the times were not necessarily related by blood to the patron (Kelsey, 2003). By then Francis seems to have become as committed a Protestant as John Hawkins, who had insisted at sea on a nightly ritual of prayers and devotional recitations (Herman, 2004). That gainful voyage of 1566 might be regarded as the ﬁnal phase in Drake’s apprenticeship as a privateer. Trading in slaves had been forbidden by Philip II, but not out of humanity, for in that “odd, dull, slow, priest-ridden mind, there was hardly a corner for humanity” (Mason, 1941). But risking the wrath of the Spanish would be no more a concern for Drake than it had been for Hawkins. Indeed he went much further than Hawkins in provoking the Spanish as well as the Portuguese by committing piratical attacks on their vessels (Thomas, 1998). The young Drake acquitted himself so coolly under ﬁre that in the third Hawkins’ expedition, begun in the following year, he was given command of the Judith, and later also the Angel. In the disaster of San Juan de Ulua, confusion prevailed, obscuring vision and impairing judgment. Perhaps believing Hawkins to be lost with the Minion, Drake sailed out of harbor and returned home with the shocking news of treachery and defeat. When Hawkins later limped home with a handful of Minion survivors, accusations of desertion and even cowardice were leveled at Drake, and the relationship between the two soured. Drake’s ﬂight might have been tactically justiﬁable, but Herman (2004) is not the only historian to see Drake as a “small, cold, ruthless bastard). Be that as it may, William Hawkins, John’s elder brother, requested the Queen for a commission of reprisal in the tradition of privateering, but Elizabeth refused, at a time when it seemed inopportune to provoke the Spanish further. Unsatisﬁed in his lust for revenge, Drake in 1570 undertook a series of private raids on Spanish vessels in the West Indies, capturing ships and very considerable treasures. As Sugden (1990) makes clear, there was “not a thread of authority” for his raids, “nor a commission from his government that would have made him a privateer”. In pursuing his private war against the Spanish, Drake was, in a strictly legal sense, engaged in piracy. In the view of Spanish and French privateers, who stayed mostly on the legal side of that dubious practice, Drake was a pirate, even although his own government never chose to cast him oﬀ as an outlaw. Unlike Avery, Laﬁtte and others of piratical notoriety, Drake had connections in positions of authority. Drake’s brilliance lay in his tactical insights as much as his seamanship, which was probably no greater than Hawkins’. He saw, even more clearly than the French corsairs, that Spain’s Achilles heel in the New World was the unprotected Isthmus of Panama, the 18-league stretch of land connecting Panama with the treasure-town of Nombre de Dios. When he ﬁnally sailed home, he was laden with treasure. The cargo has been valued, perhaps overvalued, as high as 160,000 pesos: more than twice the estimated total value of all the booty brought home by Hawkins from his three voyages. There should be no doubting the magnitude of new wealth opened up by mariners such as Drake. When he returned to Deptford on the Pelican, now re-named the Golden Hind, Queen Elizabeth came on board to knight him, but she also came as the principal investor and beneﬁciary. The huge sum she received from Drake’s booty

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paid oﬀ all of England’s foreign debts and balanced its budget. Heilbroner (1999) has estimated that, invested abroad, it was “a sum large enough, at compound interest, to account for Britain’s entire overseas wealth in 1930!” Drake was, of course, to become England’s ﬁrst great national hero of the modern era. Most of his biographers have admired his virtues more than they have deplored his vices. Bradford (1965), for example, describes him as “an extraordinary example of a self-made man, as a navigator of outstanding brilliance, a genius of naval warfare, and an astonishingly able partisan-leader … a legend in his own lifetime”. It might be added that he seems to have been ahead of his times in his relatively humane treatment of his crew and of the prisoners he took along the way, creating a standard of behavior that would not be followed by masters at sea until after the much later example of Captain James Cook (1728-1779). Reﬂections. Precision of terminology is widely admired within the legal profession. By modern standards, it is important for lawyers that international crimes should be clearly deﬁned, so that they can be prosecuted at a professional level. Otherwise, the eﬀectiveness and impartiality of judicial process are brought into question. Piracy, the ﬁrst “international crime”, could not be brought within a technically proﬁcient system of justice in the 16th and 17th centuries. As long as privateers were useful to governments and available for patriotic service, it would not be possible to draw an analogy between pirates and privateers. To insist on such an analogy, for technical or moral purposes, would have created politically intolerable embarrassments. Much the same dilemma of values exists today. “Old-fashioned” piracy at sea is now deﬁned with reasonable precision; for example, as “robbery or forcible depredation on the high seas, without lawful authority, done animo furandi, in the spirit and intention of universal hostility”. But it is still debatable whether vessels and crews engaged in such activities are subject to “universal” jurisdiction. As we shall see, it is common nowadays to draw an analogy between “pirates” and “terrorists”. Increasingly, we hear the argument that terrorists should be subject to the right (or duty) of all states to capture them, even on the high seas, and to bring them to justice, whether in a national or international court of law. Even today, after centuries of international legal development, it is a politically formidable challenge to secure universal consensus on the deﬁnition of “terrorism” and on the question how the problem should be dealt with. Old piracy and new terrorism are alike in demonstrating the diﬃculty of separating the legal and political dimensions of international law. Convergence and Divergence of Legal Systems Questions. One of the problems in constructing a full-scale history, which traces developments over thousands of years, is that of selecting “gateways”. It is generally agreed, however, that the period beginning around 1500 is marked out as a new stage in the history of international law, because it provided the “take-oﬀ ” point in international political development. It was the 16th and 17th centuries in European history

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that witnessed the emergence of the political infrastructure of modern international law. Equally clearly, it was the 20th century, as we shall see, that furnished the world community with international organizations and regimes equipped for the development, systematization, interpretation and application of the norms of public international law. It was only then that the “system” of international law was endowed with the institutional apparatus necessary to create a systemic presence across all cultures and societies. In earlier times, prior to the 16th century, compliance with the emerging law of nations was at best an occasional feature of relations among rulers, states and other forms of political association. Before the appearance of the modern nation-state, at the end of the feudal period of European history, the law of nations consisted mostly of doctrine. It was found mostly in books, and the authors were still in disarray. In the period from 1492 to 1645 we are not ready to go through the gateway into an era of conceptual order. The “science” of international law was not yet scientiﬁcally structured. In the 16th and 17th centuries the scope of ius gentium was still unclear. Above all, jurists trying to come to grip with this inchoate discipline diﬀered on questions concerning the distinctness of the law of nations. Should its doctrine be treated essentially as an extension of Roman law, civil law, or the canon law? What doctrinal components of these, mostly private, law systems could be injected into the adolescent body of public law needed to regulate inter-state relations? Moreover, was it appropriate to “borrow” doctrine from the canon law despite its speciﬁc concerns with Christian ecclesiastic governance and with the ethical domain of private morality? How far should the building of a public international law for the entire world draw, by analogy, upon the bricks and straws of national legal systems evolving outside the spiritual and temporal domains of continental Europe? What future challenges to that heritage were beginning to assert themselves? The European Legal Heritage. By 1500 A.D. much of continental Europe had been absorbing parts of Roman law doctrine. In the Dark Ages, some of that legacy had been lost, but in medieval times the civil law tradition revived, grafted upon local or regional systems of customary law. In the scholarly communities of early modern Christian Europe, certain doctrines of the civil law and canon law were found to overlap, not least on issues related to the ethics of war. Many of the early modern jurists were also theologians, who found no reason not to embrace the common or compatible doctrine of two admittedly distinct “systems”. In retrospect, the co-existence of two distinct but often compatible bodies of legal doctrine in 16th century Western Europe is hardly surprising. Civil law and canon law specialists alike were products of the same cultural tradition, though subject to variable religious and secularist values. Most jurists of the age were, of course, deeply imbued with the traditional Western ideal of natural law, which pivoted on an ancient and commonly shared belief: that the most valuable principles of human behavior – whether classiﬁed as “moral”, “religious”, or ”legal” – must have a sacred origin. Fundamental law had to exist above the level of ordinary humanity, whose ﬂaws were only too evident on all occasions. The overlapping of civil law and canon law doctrine

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in the 16th century reinforced the impression that basic principles could not be entirely dependent on the frailties of human authority. It seems unlikely that ordinary citizens of 16th century Europe were much aﬀected by the intricacies of the civil law. Most no doubt found it advisable to avoid the courts altogether, and to put their trust in the “living law” around them. As for the “law in books”, medieval legal doctrine, cluttered with scholarly glosses and commentaries, was beginning to give way to new inﬂuences due to the emergence of humanists such as Andrea Alciati (Andreas Alciatus) (1492-1550). Alciati was the only son of a wealthy merchant in Milan and of a woman of noble birth. While still a student at law, he published his ﬁrst work, a commentary on the last three books of the Justinian Code. This early contribution revealed not only his immersion in Roman legal authorities but also his willingness to ﬁll legal gaps with new doctrine. As his writings proliferated, Alciati’s reputation as a reformer of Roman law studies spread throughout Europe. In 1520 he began correspondence with Erasmus, Sir Thomas More, and other leading humanists. He was impressed with the intensity of Luther’s personality, but not with the great reformer’s “invective and rough manners” (Phillipson, “Alciati”, 1914). Scholars who ﬂocked to Alciati’s brilliant lectures from all over Europe included John Calvin, the Dauphin, and even Francis I. In his lectures and writings, the Italian jurist never failed to exalt the genius of Roman law. His aim was to emphasize its value for the present, and greatly diminished, age of legal development: to “clear it from the spurious additions made by alien hands, to set it forth in the condition in which it left the classic jurisconsults, and interpret its meaning and application not through the vision of subsequent glossators and commentators, but from the point of view of the time and place of its elaboration”. Moreover, his works were remarkably free of the “tedious circumlocution, pedantic heaviness, and pompous display of scholarship” that remained the legacy of the scholastics, whom he reviled. Phillipson suggests that Alciati was perhaps the ﬁrst of the post-classical lawyers whose writings reﬂect “purity and elegance of diction, and that marked personal note, that indeﬁnable charm which characterizes the cultured humanist and the true artist”. Others joined Alciati in the attack on the Bartolists for their “barbarous language, absence of method, and scholastic procedure”, who “gave themselves entirely to logic, chopping and attacking the opinions of others rather than seeking the truth in the sources themselves”. These were the adherents of the new French school of Romanists, determined to restore the true legal sources and texts of Rome, convinced that a more accurate understanding of the world’s most sophisticated legal system was bound to create a juster, law-based, civic society. The most famous of Alciati’s successors in the 16th century was the French jurist, Jacques Cujas (Jacobus Cujacius) (1522-1590), whose most inﬂuential teacher, Arnaud Ferrier, had been a student of Alciati. Like his famous predecessor, Cujas led a restless life, wandering from university to university and never entirely free from the political and religious controversies of the day. Although he lacked Alciati’s ﬂuency and grace as a lecturer, he became recognized as the leading historian of Roman law and the most indefatigable explorer of its sources (Phillipson, “Cujas”, 1914).

Shaping of the Modern World (1492-1645)

Despite the eﬀorts of these and later jurists, the civil law countries of continental Europe never achieved until modern times a common law, in the sense of a general body of laws common to the whole country. The administration of justice remained notoriously slow, complicated and expensive. No institution existed with a suﬃciently general jurisdiction to permit the development of a national common law. By 1645, the death of Hugo Grotius, not even France had advanced to the ﬁrst level of uniﬁcation of its laws (Von Mehren and Gordley, 1977). In the feudal period Southern France had rediscovered its Roman past. The customary law of the region was Roman law, and when classical studies were resumed it was Justinian’s Corpus Juris that was revived. In Northern France, on the other hand, it was mostly Germanic customary law that prevailed. The customary systems (coutumes) were almost 300 in number and some of them governed only a single city or a very small territory, but the overall customary regime comprised almost two-thirds of the territory of the realm: the pays de coutumes. It was only the southern third of the country, comprising the pays de droit ecrit, that was subject to written Roman law. Yet the distinction should not be overdrawn, for even in the northern areas Roman law had considerable inﬂuence in sectors such as contract obligations, where the coutumes were virtually silent (Amos and Walton, 1963). After 1500, as royal authority became consolidated, eﬀorts began to create a sort of French common law. As the capital became increasingly predominant in trade, the Coutume de Paris took on the special status of the “master custom”, mainly in matters which belonged to “pure French law”, not borrowed or adapted from the Roman law that still applied in Southern France. The building of a truly national common law would prove to be a slow process down to the Napoleonic era. The history of the canon law, on the other hand, had reached a watershed with its “codiﬁcation” by Gratian (Gratianus Franciscus) (c. 1098-?), the Bolognesan monk. Known as the Decretum Gratiani, this work was a systematic compilation of legal texts and opinions drawn from an array of Church sources augmented by occasional recourse to Roman law. Soon the codiﬁed canon law took its place as a university subject at Bologna alongside the civil law of the Glossators. Some parts of the Decretum were treated as oﬃcial text, others merely as private legal opinion. Thereafter little was added to the body of canon law doctrine (corpus juris canonici) for 400 years. In the early 16th century, however, there was a decisive trend to the centralization of authority within the Roman Catholic Church and toward uniformity of legislation derived from the Holy See. Canonical reform was overdue. Between 1545 and 1563 the Council of Trent, the 19th ecumenical council, promulgated a series of disciplinary decrees, which embodied the ideals of the Catholic Reformation and restored the morale of the clergy. Although these decrees went some way toward restoring the moral integrity of the Church, they never came close to a thorough-going reform of the canon law. Yet, indirectly, they may have strengthened the moral authority inherent in the canon law system, which continued to govern matters related to marriage and family relations within the Catholic Church. However, as more and more European jurists began to move away from ecclesiastic inﬂuences in the early 17th century, the general conception of the law of nations became increasingly secularized. There remained, on the continent of Europe, the

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issue whether, and to what extent, the law of nations should depend on the civil law tradition. Some European scholars felt that greatest need was for a new system of rules and doctrines uniquely suited for the regulation of inter-state aﬀairs: a “positive” system based on state-sanctioned treaties and customs. Others, more loyal to the natural law tradition, argued for a continuing need to draw upon the stock of ancient and unchanging values that had projected a shareable heritage of basic legal principles. The rift between the European positivists, emphasizing treaties and customs, and the European naturalists, pivoting on general legal principles, created the doctrinal battleground for the 17th and 18th centuries. The Quickening of the English Common Law. If a time-machine visitor had descended upon 16th century England, their hosts in the legal community would have been startled to learn that the indigenous system slowly evolving around them would one day grow into one of the world’s most inﬂuential and most ﬂexible legal systems. Even in the 17th century, the lawyers of England thought of their system as an outgrowth of their ancestors’ medieval experience. It was a system cobbled together from innumerable judicial decisions, growing inductively from the responses of individual judges and tribunals to the need for fair adjudication of private, commercial, and civic disputes. It was a system entirely diﬀerent from the civil law, as much a product of institutional development and a custom of fair dealing as of a developed body of legal doctrine (Ives, 1983). Above all, the common law of Elizabethan England was culturally programmed to evolve over the ages, not to be organized and codiﬁed through some kind of legal development project. Thomas Carlyle, Frederic Maitland and others have made much of the “toughness” of the English common law. It was a system almost totally indigenous in origin, shaped by a professional elite determined to keep the English monarchy subordinate to a common body of laws. Judges of the 15th century had taken pride in contrasting the constitutional kingship of England with the absolute monarchy of France. The role of the English lawyers in limiting the royal will was indispensable in the age of the Tudors and Stuarts. “A simpler, a more rational, a more elegant system would have been an apt instrument of despotic rule … The strongest king, the ablest minister, the rudest lord-protector could make little of this ‘ungodly jumble’” (Maitland and Montague, 1915). The medieval experience of England had been dominated by the struggle between the king and the nobles. By far the most important event in English legal history was the signing of the Magna Carta. On June 15th, 1215, on the meadow known as Runnymede, King John I acceded to various baronial demands by signing the Great Charter, transcribed from the language of English sentiment into more imposing Latin prose. As noted by Lord Denning, the incisive English judge of appeals, the charter “gave legal redress for the wrongs of a feudal age ... the guarantee of freedom under the law” (Denning, 1964). “No freeman”, it was declared, “shall be taken or imprisoned or disseised or exiled or in any way destroyed … except by the lawful judgment of his peers or by the law of the land”. Impartial administration of justice was further guaranteed: “To no one will we sell, to no one will we refuse or delay, right or justice”.

Shaping of the Modern World (1492-1645)

What might have been seen, on that sunlit meadow, as a victory for the barons, in usurping the sovereignty of the king, would later be hailed as a more momentous triumph for the rule of law in England. Beyond the realm, the principles of the Magna Carta would acquire paramountcy within the widening international domain of the English common law. Four hundred years later, as Denning reports, Sir Edward Coke (1552-1634) “forsook his crabbed learning, threw aside his lawyer’s commentary, and brought out this little gem”: “Upon this chapter [of the Great Charter], as out of a roote, many fruitful branches of the Law of England have sprung … As the gold-ﬁner will not out of the dust, threads or shreds of gold, let pass the least crumb, in respect of the excellency of the metal; so ought not the learned reader to let pass any syllable of this law, in respect of the excellency of the matter”. It was Coke, more than any other lawyer of Elizabethan and post-Elizabethan England, who defended the supremacy of the common law against the claims of royal prerogative. Under the patronage of Lord Burghley, Elizabeth’s powerful ﬁrst minister, Coke rose rapidly within the political hierarchy: to the level of Attorney-General, then Solicitor-General, and ultimately Lord Chief Justice. The “incorruptible embodiment of the common law” was an overbearing and impatient man; attracting admiration but little love. He was a savage prosecutor of the mighty who were seen to place themselves above the law, such as the Earls of Essex and Southampton, Sir Walter Raleigh, and the gunpowder plotters of 1605 (Eusden, 1968). Nowhere was his harsh forensic style more evident than in the trial of Raleigh. While the famous courtier defended himself calmly, with dignity and composure, Coke assaulted him with brutal invective: “Thou hast an English face, but a Spanish heart!” When James Stuart, descending from Edinburgh in 1603, imported the doctrine of the divine right of kings, it was Coke, the indomitable Lord Chief Justice, who stood in his path. Invoking the Great Charter, he re-asserted the supremacy of the common law. It could not be changed or abrogated by royal authority. James was greatly offended and Coke was eventually relegated, and then dismissed. England would have to endure another civil war over the claims of monarchy before the matter was ﬁnally settled. But the Charter legacy was never close to extinction. Ultimately, the principles of the Magna Carta passed into the world heritage of democracy and human rights, and thereby, in the mid-20th century, into the heartland of world community law. The other great lawyer of Coke’s era was his bitter rival, Francis Bacon (Baron Verulam) (1561-1626). Bacon was perhaps the most brilliantly talented of eminent Elizabethans, and he was a nephew of Lord Burghley. Yet he had diﬃculty in getting preferment in the royal service, even after attaching himself to the Earl of Essex, one of Elizabeth’s favorites. Admittedly he was impetuous, but perhaps his more serious fault lay in his popularity with the military and the general public. In 1618 he ﬁnally reached the top, when he was appointed Lord Chancellor by James I. But in 1521 he pleaded guilty to a charge of bribery and corrupt dealings in Chancery, and was committed to the Tower by the House of Lords. Although pardoned by the king four days later, Bacon never entirely recovered his moral reputation, even in the eyes of a forgiving posterity prepared to believe his claim that the bribes received were never allowed to aﬀect the justness of his judicial decisions.

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Bacon was the deﬁnitive Renaissance man of the late-Tudor and early-Stuart era of English history. As philosopher, historian and man of letters he exhibited the traits of genius. He might have been Shakespeare’s equal in the sharpness of his insights into the human condition, even if he was not in fact the author of Shakespeare’s works. In his ﬁnal, post-judicial, years, he displayed astonishing capacities entirely beyond the boundaries of legal learning. Not least, Bacon established the parameters of the philosophy of science at the dawn of the Age of Science. Not inappropriately, he died, like Pliny the Elder, of a surfeit of scientiﬁc curiosity. On a snowy day, he stepped out of his carriage to stuﬀ a fowl’s carcass with snow in the hope of discovering whether this sudden drop in temperature would “delay the process of putrefaction”. He caught a chill, and died of bronchitis. He left incomplete another experiment: the codiﬁcation of the common law, which remained a chaotic mass of judicial precedents. Perhaps no writer of the early 17th century came as close as Bacon to the modern ideal of the open-minded scholar. Solutions to many problems of society were seen to lie in the advancement of learning. His vision of the New Atlantis, based on new beginnings, was peopled with sages, like the fathers of Saloman’s House, who knew how to use science and technology to create a culture of intelligence and enlightenment (Matheson, 1922). Bacon’s ﬁercest scorn was reserved for the narrowness of the Schoolmen “For were it not better for a man in a fair room to set up one great light, or branching candlestick of lights, than to go about with a small watch candle into every corner … [C]ertain it is that if these Schoolmen to their great thirst of truth and unwearied travail of wit had joined variety and universality of reading and contemplation, they had proved excellent lights, to the great advancement of all learning and knowledge; but as they are, they are great undertakers indeed, and ﬁerce with dark keeping”. (Vickers, 1996) Not unlike Cicero, Bacon displayed an extraordinary grasp, beyond almost anyone who followed; a great talent for eloquent language; and a rare capacity for reasoned judgment. Sadly, he shared with Cicero the misfortune of being a man who accommodated himself to the ambitions and treacheries of his time. Reﬂections. What if Francis Bacon had been less interested in the process of putrefaction? Clearly, he would not have died of pleurisy when he did, and might have lived long enough to complete his project on the codiﬁcation of the common law of England. If so, Bacon might have overcome the myth that the English prefer the eccentricities of an untidy, uncodiﬁed legal system. An accepted codiﬁcation of the common law in the 1630’s or 1640’s would have led the way in the development of national legal codes, predating the Napoleonic Code by over 160 years! In fact, however, it would be the continental European and Scottish civilians who took the lead in the international codiﬁcation movement of the 19th century. On the other hand, it was the English Charterists who provided the main impetus for the advancement of the rule-of-law ideal into the 18th century domain of legal and political theory. Indeed it was the English (or British) model of balanced governance that inspired the modern democratic concept of civic benevolence within a constitutional framework, and later found its way into the post-classical ethic of public international law.

Shaping of the Modern World (1492-1645)

The continuing variations within the civil law culture of the 17th century seem, in retrospect, the conditions that would later force the French and their imitators to set up uniﬁcation as a new priority in legal development. In 1645, however, Europe was still locked in mortal combat. Its jurists were not yet ready to envisage a future convergence of national legal systems. The logic of sovereign separateness still had to follow its course. The Early Modern International Jurists Questions. By the late 16th century we have reached that stage of world history most frequently associated with the “birth” of the law of nations. Readers might feel that if international law was still unborn before the 1520’s, then historians spend altogether too much eﬀort in the search for its pre-natal elements in antiquity. Rather we have reached that period when the invention of the printing press was beginning to open up the possibility of a more systematic, and more accessible, kind of scholarship in international legal studies. The age of the international jurist had arrived. From this point forward, we can trace the evolution of an increasingly distinct discipline of international law as a branch of law or justice independent of ethics, theology, and diplomatic theory: of what Ernest Nys has called an “independent domain” (Vitoria, 1917). But what was the role of the jurist in the development of the law of nations in the 16th and early 17th centuries? Who were those early modern scholars? To what extent did they draw upon the international practices and sentiments of the past, which we have been following over three thousand years? Were they able to rise above the follies and limitations of their era? How far did they succeed in providing a juridical foundation capable of withstanding the passage of time? The Role of the International Jurist. As we have seen in Chapter One, the orthodox mid-20th century view of the formal sources of international law has been that the rules (principles or norms) of the system are to be discovered in three forms: treaties, custom, and general principles (Verzijl, Vol. 1, 1968). But neither the second nor the third of these three categories speaks with its own voice. Both have to be “discerned”. Moreover, treaties have to be interpreted. What was created in the 16th century was the “invisible college” of international jurists who take up these tasks of discernment and interpretation. Juristic writings, which have now reached enormous dimensions, do not make international law. Yet, to the extent there is a consensus within the “college”, the views of the “best qualiﬁed” jurists are enormously inﬂuential on the process of law-making by treaty in the diplomatic “arena” and on the process of application by international tribunals. Jurists collectively have a crucial, if “subsidiary”, role in the evaluation and development of international legal doctrine. In the early stages of doctrinal consolidation in the 16th century, however, there were still no clear boundaries separating the norms of the civil law, the canon law, and the common law as inputs into the doctrine of the law of nations; and there was still a very considerable overlap between the domains of law, theology and ethics.

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The Spanish Milieu. For the ﬁrst eighty years – say, from 1500 to 1580 – the “invisible college” consisted very largely of Spanish theologians. Grewe (1998) suggests that the “Spanish epoch” of international law extended further to 1648, before it was succeeded by the “French period” (1648-1815) and then the “English period” (18151914). Those who ﬁnd this division a bit too pat will, at least, concede that Spain truly dominated the European political milieu throughout the 16th century. The primacy of Spain was at its peak in the lifetime of the Habsburg Emperor Charles V (1500-1558). Charles succeeded his father as king of Spain (Charles I) at the age of six. His childhood was lived under a series of regency arrangements that included his other Joanna, who was the third, and somewhat retarded, child of Ferdinand and Isabella, the patrons of Christopher Columbus. His grandfather, the Emperor Maximilian I, was determined that the lively boy should succeed him as master of the Holy Roman Empire. Over the opposition of Francis I of France and Pope Leo X, the election of Charles was secured in 1519, chieﬂy through bribery heavily ﬁnanced by the Fuggers and other German bankers. After a visit with Aunt Catherine and Uncle Henry in London, Maximilian’s heir took the scepter of oﬃce in October 1520 as Charles V. He was to be the last Holy Roman Emperor to have a papal coronation (Roberts, 1997). Charles proved to be an energetic and combative ruler of an unusually ungovernable realm. Indeed he was so feared in Europe that he earned the reputation as an emulator of Charlemagne, bent on the establishment of a universal empire. His territories were certainly “the greatest dynastic accumulation of the age”. Both his contemporaries and later historians have divided on the justness of the charge that he had Alexandrian ambitions, a charge which Charles himself laughed oﬀ. His defenders have attempted to show him as a seeker of peace despite his obsession with wars, which were, arguably, rarely of his seeking. Brought up in the Lowlands, then a province of Spain, Charles had to learn later how to be truly Spanish. He was a man of common sense and of greater sobriety than most of his rank, and he was perhaps the ablest ﬁeld commander of his time. Francisco de Vitoria (c. 1483-1546). Behind this panoply of imperial power and authority we see a quieter ﬁgure in the shadows of the cloister. Francisco may have been born in Burgos, despite his posthumous association with the town whose name he bears. Perhaps before his birth, his father Pedro, a Basque aristocrat, moved to Burgos to enter the royal service. His mother, Catalina Compludo, was descended from “new Christians” converted from Judaism. It was in Burgos that Francisco entered Dominican orders around 1536 (Truyol Serra, 1988). The Order of Dominicans was founded by St. Dominic Guzman in the early 13th century after receiving the support of Pope Honorius III. Later in the century the Domincans were invested with judicial powers in matters of heresy, but, as Ernest Nys observes, preaching of the faith carried the obligation to engage in systematic studies as a “universal, necessary and permanent function” of the Order (Vitoria, 1917). One enthusiast went so far a to suggest that “a Dominican who does not ordinarily busy himself in intellectual work is not doing as he should and oﬀends gravely against the Rule”.

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After lecturing for three years at the University of Valladolia, Francisco was appointed in 1526 to the chair in theology at the distinguished University of Salamanca, where he remained until his death. His appointment, by student election over a Portuguese rival, was vindicated by his later renown and popularity as a lecturer. He never set himself up with a writing career. It seems appropriate that the monographs published after his death were based on his lecture notes, organized and edited by the admiring former students of the ”Spanish Socrates”. It is not known whether Emperor Charles V really harbored visions of himself as claimant to world supremacy, but he was also Vitoria’s sovereign as King of Spain. So, among his students and contemporaries, Vitoria was admired for his quiet courage in dismissing such imperial pretensions. He was also respected by the liberals of the day for challenging powerful clerics who adhered to the medieval orthodoxy that “heathens” were nothing of human worth, ﬁt only for Christian conquest and conversion. It is for the exceptional humaneness of his views on Spanish colonial policy in the Americas that Vitoria is best remembered. His criticism of the cruelties associated with that policy involved repudiation of most, but not all, of the theological arguments advanced in support by the Church. In Vitoria’s eyes, the indigenous “Indian” rulers of the New World were legitimate sovereigns. War waged against them must have a “just cause”, as against Christian rulers (Vitoria, 1917). On the other hand, the combined authority of Holy Scripture, natural law and ius gentium convinced Vitoria that the rulers of an indigenous, spiritually deprived culture were under obligation to accept the right of Spanish Christians to visit their territory in order to propagate the true faith, provided the exercise of that right was unaccompanied by violence. Barbarian religious grounds for resistance to that right were specious, and retaliation against indigenous Christian converts would constitute a just cause for war, entitling the Pope to replace the recalcitrant prince with a Christian substitute. Nussbaum (1958) takes the view that Vitoria was a humane moderate rather than a liberal of the modern kind. Today we may regret Vitoria’s defense of the Spanish claim to have a right to ﬁsh for pearls and dig for gold in the name of the new “freedom of commerce”, as well as a right to proselytize. Clearly he did not subscribe to the ethic of reciprocity, which might have endangered the Spanish ﬁsheries, much less the emergent European principle of state equality. On ethical issues, Vitoria was “curiously selective”. He was protective of the innocent in the Spanish colonies, and severely critical of the conquistadores’ misuse of rule, but his charity did not extend to Muslims ﬁghting for their faith. Inﬁdel prisoners of war might appropriately be killed by their Christian captors, and their wives and children enslaved. He fails today’s test of liberalism: the Spanish owed the Indians paternal tutelage out of a love that denied them the status of autonomous adults (Mechoulan, 1988). Along with Nys, we might respect “the vigor of his reasoning, the mobility of his sentiments, and his profound love of mankind”. He was “modest, simple, good; a sturdy defender of truth and of justice”. In short, Vitoria was an early modern proponent of civic benevolence, an idealist serving the future normative development of the law of nations.

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Should we, then, accord this pious and gentle theologian the status of the “father of international law”? Probably not. As Mechoulan observes, Vitoria fell short of the Stoic standard of generosity, excluding Jews despite his mother’s heritage – as well as Muslims – as perpetual enemies of Christ. The American aboriginals, on the other hand, being amenable to conversion, were drawn into Vitoria’s world of civic privilege as potentially reasonable barbarians. They were orphans without a culture, worthy of adoption. Yet Vitoria changed the perceptions of many with his plea that theologians and jurists alike should be listening to their conscience. On the other hand, Vitoria has been hailed as the founder of the “Spanish school” of early modern jurists. One of his strongest admirers, the American scholar James B. Scott (1934), underlined the seminar nature of Vitoria’s contribution to the law of nations. Satisfaction is taken in his insistence that the “colonies” of the New World should not be excluded from the international community and in the thought that the Permanent Court of International Law, established after the First World War’, was “upon the initiative of the successors of Vitoria’s aborigines”. The Spanish Succession. The son of Charles V, Philip II of Spain (1527-1598), is a less impressive ﬁgure than his accomplished father. Unlike Charles, Philip received a Spanish upbringing and remained popular among his people despite his shortcomings as a ruler. He has been described as “grave, self-possessed and distrustful”. Though sexually licentious by most standards, he was “probably less immoral than most kings of his time, including his father, and was rigidly abstemious in eating and drinking”. In contemplating abdication, Charles V arranged his heir’s marriage with Mary Tudor, Queen of England, as part of his design to form a dynastic union of Spain, England and the Netherlands. It was in their common interest to face down the dangerously rising French. In abdicating in 1556, Charles conveyed enormous responsibilities to his bookish son: Spain with its vast American colonies; the Aragonese territories in Italy, Naples and Sicily, the Burgundian inheritance, including the Netherlands; and the duchy of Milan. The death of Mary Tudor and her succession by the Protestant Elizabeth signaled the beginning of Philip’s diﬃculties. Like other Christian rulers of the time, the powerful Spanish sovereign was convinced that unity of faith was essential to the maintenance of his secular authority. The size of his disparate realm ensured that he would have no peace. He held to dogma and worked hard on the business of ﬁrm rule. He was often open to the techniques of dynastic marriage and political assassination as substitutes for war, in keeping with the spirit of the times. Above all, Philip was overburdened by the ever-escalating costs of maintaining his unwieldy empire. The pressures of military conﬂict were inexorable. His enemies were everywhere; friends and allies were few. He never had any aﬀection for the English, but had a fondness for the Dutch. Yet he was a true Castilian at heart, believing it was his obligation to impose a strict Castilian code of honor upon all throughout his realm (Kamen, 2004).

Shaping of the Modern World (1492-1645)

Francisco Suarez (1548-1617). The great Jesuit theologian who was to become the last, and perhaps the most important, of the Spanish School of jurists was eight years old when Philip II inherited all those territories and fractious subjects. Born of Spanish nobility, Francisco Suarez entered the Jesuit order in his seventeenth year. In the disciplines of philosophy and theology he showed exceptional intellectual gifts that were to win him royal favors, such as the chair of theology at the Portuguese University of Coimbra after the Spanish conquest of Portugal by the Duke of Alba in 1580. Unlike Vitoria, Suarez was a prodigious writer, and his pen was frequently called into the service of the Church. The Society of Jesus, founded by St. Ignatius of Loyola in 1539, was a signiﬁcant addition to the network of monastic orders in the Roman Catholic Church. The term “Jesuit” was given to the Society by its derisive critics, many of whom resented the “martial” character imposed on it by a militant theologian, who perceived the church of the 16th century to be in a state of war. For Ignatius, “the life of the cloister had to be exchanged for the discipline of the camp”. In the words of Richard F. Littledale and Ethelred L. Taunton, the Jesuits were relied upon to “roll back the tide of Protestant advance when half of Europe, which had not already shaken oﬀ its allegiance to the papacy, was threatening to do so”. Yet it was the militant function of the Society that attracted many of the best minds of the Church, such as Francisco Suarez, who felt the need to transcend the technical domain of theology. On civic issues, the Jesuits were equipped to become the intellectual vanguard of the Church. In most respects, Suarez’ credentials as an early modern jurist were superior to those of Vitoria. Although more strictly doctrinal in the tradition of medieval philosophy, he was troubled by the extraordinary looseness of scholastic terminology. Although he lacked the modern kind of genius that cuts through prolix ideas, he anticipated the need for more sharply focused vocabulary to deal with the great issues of the day. In his juristic writings, he struggled with the problem of vagueness, though himself a victim of received doctrine. From a modern perspective, he never quite met the challenge of reformulating the ambiguous notion of ius gentium, choosing to remain closer to the theology of natural law than to the secular legitimacy of the civil law (Nussbaum, 1958). Unlike Vitoria, Suarez refuted the current theory of the divine right of rule espoused by his own sovereign, Philip II, defending the natural rights of the individual to life, liberty and property. As Henirich A. Rommen observes, he repudiated totally the Aristotelian thesis of “natural slavery”: all forms of servitude were seen to be the product of human positive law, unsupported by natural law or “right reason”. Like Vitoria, Suarez strongly criticized the Spanish policy of colonial conquest and the harsh practices associated with it. The aboriginal polities were accepted as sovereign states, members of an international legal community legally equal to Spain. Papal and imperial claims to world supremacy were rejected as absurd. Spain, he insisted, had no right to invade or occupy these territories by reason of the backwardness or heathen status of their inhabitants. Above all, Suarez shows his modernity in the history of international law in a wellknown passage contained in his work On Laws and God as Legislator [De Legibus ac Deo Legislatore] (1612). Although, he writes, “each commonwealth [civitas], state [re-

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spublica], or realm [regnum] is in itself a perfect community, consisting of its members, nevertheless each of these communities, inasmuch as it is related to the human race, is in a sense also a member of this universal society. Never, indeed, are these communities, singly, so self-suﬃcient unto themselves as not to need a certain mutual aid and association and communication, sometimes because of a moral necessity or indigence, as experience shows …Hence certain special rules could be established by the customs of these nations [gentes]. For just as in one commonwealth [civitas] or province [provincia] custom establishes law, so, among the human race as a whole, rules of ius gentium could be established by usage [moribus] …” This is the closest that anyone of his age had come to articulating the principles of universal solidarity and the interdependence of states. It is his modern conception of the international community that entitles Suarez to a prominent place among the early modern jurists (Scott, 1933). The Elizabethan Milieu. By the mid-16th century the success of the Reformation led by Luther had forced the Catholic Church to begin the painful exercise of internal reform. This phenomenon, later to be called the Counter-Reformation, had a profound eﬀect on the political history of Europe, as much as the Reformation that provoked it. In the words of Roberts (1997), the two trends together “could and did strengthen the ambitions of lay rulers to exercise authority over their subjects. Protestant princes sought to protect themselves against resurgent Catholicism; Catholic princes were given new authority and resources by the Church they sought to upheld”. Increasingly, Europe was to become witness to a new dependence of religion upon political authority. England, however, was a “special case”. While the Spanish theologians were beginning to challenge the legal validity of state policies of vital national interest, English intellectuals were beginning to move in an entirely diﬀerent direction. In 1500 the subjects of Henry VII were Catholics, owing allegiance to the Church of Rome. By 1600 most English men and women regarded themselves as Protestants, like their popular sovereign Elizabeth. Many, like the father of Francis Drake, were caught up uncomfortably in a process of religious and political transition. Most scholars in England were now under pressure to choose sides, and English society at large had special reason, in times of stress, to put trust in the gathering strength of its legal institutions. The turmoil of Elizabethan England pivoted chieﬂy on the struggles between the Catholic and Protestant pretenders to the throne. Henry VIII himself was not a Protestant. His break with Rome was over the secular matter of succession and the authority of the Church in the area of marriage and divorce. His legislation abolishing papal jurisdiction removed all obstacles to the divorce from Catherine of Aragon, his brother Arthur’s widow, who had borne a daughter, but not a son, to Henry. The legislation cleared the legal path to his marriage with the delectable Anne Boleyn. This legislation can been seen in retrospect as the most dramatic state declaration of independence from clerical authority, the forerunner of the doctrine of separation between church and state. To suppress a backlash, the monasteries were ruthlessly dissolved. The vast wealth of the Church accrued to the crown. Yet many of the most

Shaping of the Modern World (1492-1645)

powerful families of England remained loyal to Rome, and welcomed the succession of Mary Tudor (1516-1558), and her practice of burning Protestants at the stake. Revenge killings marked the early period of Elizabeth’s long and illustrious reign (15331603) from 1558, inciting plots against her that continued down to her later years, even after the execution of her French-Scottish cousin Mary Stuart, the Queen of Scots. Down to Elizabeth’s last days of physical decline, English dissenters had to endure the dangers of life under a police state equipped with Europe’s most eﬃcient spies and most ruthless torturers. Yet, the Elizabethan era was a golden age in literature and drama, perhaps the most enduringly inﬂuential of any in the history of the arts. Moreover, the Age of Shakespeare was also a period of exceptional advancement in the ﬁeld of law. Once the political supremacy of central authority was secured in the early Tudor period, the role of the common law courts grew in importance, ensuring that all citizens had access to justice, protected from the arbitrary personal rule of barons and the sovereign. At the same time, the common law courts became an interested party in institutionalizing the separation of church and state. As part of that process, the legal profession of Elizabethan England was becoming the principal agency of secularization, more clearly so than anywhere else in Europe. Yet the common law of England, which would later prove enormously inﬂuential in many regions of the world, was still maturing as a major legal system. It lacked especially the ancient credentials of the civil law governing most of continental Europe. In 16th century England, civil law was still the starting point of legal analysis in certain sectors of law, and the common law did not become a designated ﬁeld of legal studies at Oxford and Cambridge until the 18th century. In the mid-16th century, all chairs in law were held by “civilians”, specialists in the alien civil law. It was common, therefore, for continental European civilians to ﬁnd a home, or even a teaching appointment, in the English academic community. Alberico Gentili (or Gentilis) (1552-1608). One of the jurists of continental Europe to take advantage of England’s respect for the civil law tradition was a young Protestant scholar, who had to seek refuge from religious persecution in his native land. Alberico Gentili was born in Northern Italy, son of Matteo, a physician. It has been conjectured that his mother might have been the source of his early love for jurisprudence, but it was his father who assumed the role of his tutor in Latin and Greek (Molen, 1968). At the age of twenty he graduated as a doctor of civil law at the University of Perugia. Then he practiced law as judge and legislative draftsman before he and his father in 1579 had to ﬂee from the Inquisition, which thereupon sentenced them in absentia to penal servitude for life and the conﬁscation of their property (Nussbaum, 1958). It appears that physicians like Matteo were among the most zealous adherents of Protestant doctrine at that time. After a brief residence in Austria, Alberico arrived at Oxford in 1580, where he was appointed lecturer in Roman law at St. John’s College. The Italian scholar’s lectures soon became famous, and his reputation in the civil law caught the attention of the English government, when questions arose in 1584 regarding the legality of putting the Spanish ambassador in London on trial for plot-

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ting against the sovereign who had accepted his diplomatic credentials. Was Don Bernardino de Mendoza immune from prosecution by reason of his ambassadorial status? Politically, the question was sensitive, for Elizabeth’s ministers were reluctant to provoke Spain unnecessarily and risk upsetting the strategic balance of power. So it was politically helpful to be able to reach out to a relatively de-politicized domain, especially to an “alien” legal culture that could not be accused of pro-English or antiSpanish sentiment. It is not known whether the oﬃcials in London, who engaged Gentili as an independent consultant, regarded the law of nations as an extension of the civil law system, or merely grasped the advantage of recourse to a neutral source of legal opinion. If they were hoping for an honorable way out of a political dilemma, they must have been gratiﬁed by the opinion they received. Along with his friend Johannis Hotman, Gentili concluded that Mendoza could not be put on trial in an English court. Despite the common use of ambassadors at that time as spies, commissioned by the sending government, Gentili declared himself in support of the ancient principle of ambassadorial inviolability. However, as Nussbaum (1958) notes, the opinion was carefully framed. In civil (i.e. non-criminal) matters, Gentili argued that an ambassador is not immune from the jurisdiction of the courts of the host state with respect to private contracts entered into, though the authorities are debarred from entering his house and seizing his property. In the case of a serious crime, Gentili did not take the extreme position that ambassadors are entitled to full immunity. In the actual circumstances the accusation was limited to an alleged attempt to commit a crime. Under the ius gentium, he argued, without much ground to support him, a criminal attempt is not punishable, and therefore the doctrine of diplomatic immunity should be extended to cover Mendoza’s admittedly criminal intentions. Accordingly, the English government was limited to its right of demanding Mendoza’s recall – as what later would be characterized as an “unwelcome person” (persona non grata). Refusing to comply with the order, Mendoza had to be transported to Calais, under duress, on a ship commanded by Captain John Hawkins. Mendoza’s sovereign, Philip II, found various pretexts for declining to receive a secretary of Elizabeth’s Privy Council, who had been sent to explain the matter (Molen, 1968). As for Mendoza, still “ﬁred by a personal hatred” for the Queen of England, he continued to dedicate the rest of his overactive political life to plotting against England. In September 1584 he became Philip’s ambassador in Paris, presumably in part to resume his more-than-interested observer’s perspective on events across the Channel (Kamen, 1997). Gentili’s legal advice to the Privy Council in London became famous when it was published in book form in 1585 (De legationibus libri tres). Thereafter, Gentili’s career was assured. In 1587 he was appointed Regius Professor of Civil Law at Oxford. For his inaugural lecture in 1588, the year of the invading Spanish Armada, he chose certain timely issues in the law of war, and this lecture became the nucleus of his major work On the Law of War (De jure belli libri tres), which he published in 1598. Unlike Vitoria and Suarez, Gentili was insistent on the separate status of the domain of law. Obviously, as a Protestant, he excluded the pope and Catholic Church from any authoritative role in questions of law concerning the evolving inter-state

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system. He was hardly generous with respect to Christian-Muslim relations, limiting the potential scope of binding treaties in such relationships to commercial matters based on mutual interest. In disputes between sovereign states, he advocated a return to impartial intentional arbitration along the lines of the system available to the Greek city-states in classical antiquity, except, he suggested, that use should be made of the Roman legal principles codiﬁed in Justinian’s Corpus Juris. Although less “benevolent” than either Vitoria or Suarez in his general outlook on world aﬀairs, Gentili has a diﬀerent claim to primacy among the pre-Grotian scholars. Unlike his predecessors, the Italian Protestant was quite deﬁnite that the law of nations needed to be developed doctrinally within the legal profession, like any other branch of law. He might be regarded as the ﬁrst of the early modern jurists to apply the logic of a practical litigation lawyer to the issues in the law of nations that were emerging in the late 16th century (Gentili, 1921). Although fairly thoroughly Anglicized by the end of his life, and even a practicing barrister at Gray’s Inn in London, Gentili maintained his view of the common law as unsuited to English litigation involving foreigners, arguing the necessity for recourse to ius gentium as reﬂected in the civil law system. This view was shared by many English-born common lawyers, even into the 18th century. Indeed, Nussbaum seems correct in suggesting that the later “English approach” to international law may have made even greater use of Roman law analogies than on the continent of Europe. The growing impact of the common law on the international legal system would not become evident until the 20th century, under the political inﬂuence of the AngloAmerican nations on the world community. Should we, then, accord “paternal” status to Gentili in the history of international law? Again, it seems diﬃcult to do so. Although some of his contributions to doctrine are an important advance over those of Vitoria and Suarez, his overall legacy is diminished, in retrospect, by the giant who was to succeed him in the early years of the 17th century. The Dutch Milieu. In the mid-16th century, the state we now know as the Kingdom of the Netherlands was a loose amalgamation of territories under the rule of the Habsburg Emperor Charles V. The so-called “17 Netherlands” consisted of diﬀerent kinds of “estates”: provinces, counties, duchies, bishoprics, and other designations. All were part of the Burgundian inheritance that fell to Charles and his son Philip II of Spain. For a growing number of governmental purposes, these disparate territories were uniﬁed through a common assembly called the States-General. Charles welded these territories together within a single constitutional framework, securing legislative uniformity in certain areas like succession, where a patchwork of laws might have undermined his uniﬁcation eﬀorts. In 1555 Charles abdicated his sovereignty over the Netherlands in favor of Philip. Further eﬀorts at uniﬁcation of the Netherlands pursued by Philip II proved unsuccessful, mainly because, as a Spaniard, he could not command the loyalties that had favored his father, who was a Spaniard but born and brought up among the Dutch. The subordination of the Burgundian lands to Spain caused many grievances, as well as Philip’s encroachments on traditional rights and liberties. In addition to these

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causes of discontent, there arose more divisive religious issues, which set province against province. In the mid-1560’s Calvinist and other Protestant sects demanded the withdrawal of the Spanish Inquisition and the revocation of its edicts against heresy. Mediational eﬀorts by William the Silent, Prince of Orange (1533-1584), founder of the Dutch Republic, were unsuccessful, and by 1568 the Duke of Alba had overwhelmed the Dutch armies and instituted a corrective reign of terror. However, rebels claiming William as their leader secured a foothold in their “sea provinces” of Holland and Zeeland, which became the rallying points for Protestant dissidents arriving from the south. By the end of 1573 rebel armies overcame Alba’s forces of repression. Dutch resistance continued against his more conciliatory successor, forcing the collapse of Spanish authority in 1578. Thereafter, the religious differences among the Dutch boiled up, pitting Catholic provinces against Protestant and allowing the Spanish to re-assert themselves. The Dutch, in desperation, reached out to the French and English to intervene on their behalf, but these international eﬀorts also failed to create unity. In extremity, it was agreed to form a republic of the United Provinces based on the 1570 Union of Utrecht, which recognized the autonomy of seven provinces: Friesland, Gelderland, Groningen, Holland, Oberijssel, Utrecht, and Zeeland. The republic emerging remained a loose federation, in which sovereignty lay not with the central States-General but with the seven provinces. Despite its constitutional looseness, this new republic was gradually recognized by the European powers as one of themselves. Spain was diverted by problems elsewhere. So the Dutch were able to recover other lands lost at the time of the Union of Utrecht. By the end of the century the Dutch were ready to launch themselves into a period of unparalleled commercial growth. In 1602 the famous Dutch East India Company was founded by charter from the States-General. Its purpose was two-fold: to carry through overseas the long struggle for independence from Spain, and to develop and regulate trade carried on by the Dutch on the periphery of the Indian Ocean in deﬁance of the Portuguese established there. Under the charter, the Company was endowed initially with a 21-year monopoly of the trade with the East Indies (now making up most of modern Indonesia). It was allowed to import free of all customs duties, though charged 3 on exports. Signiﬁcantly, from a later international law perspective, the Company was authorized to maintain its own army and navy, to build forts and establish colonies, to make war and peace, to negotiate “treaties”, and to coin its own money. The Company’s resemblance to a state was enhanced by the grant of full legislative, administrative and judicial authority over its operations in the region, from the Straits of Magellan to the Cape of Good Hope. By the mid-17th century, the Dutch East India Company at its peak had 10,000 soldiers at its command, 40 warships, and 150 commercial vessels; and it paid a dividend of 40. However, storm clouds were gathering. In 1599 a syndicate of London merchants had met to form their own overseas commercial enterprise, the East India Company, precisely to compete with the Dutch and break their monopoly of the lucrative trade in Asian spices. In the following year Elizabeth I granted these English merchants a charter initially for ﬁfteen years, conferring a monopoly of the East Indian trade and

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limited authority to make law and punish violators. Their eﬀorts to break the Dutch monopoly were unsuccessful, but the headlong competition between English and Dutch interests in South and Southeast Asia created conﬂicts between the two trading nations that would last through the 17th and 18th centuries and have a profound eﬀect on the development of public international law. The Dangerous World of Hugo Grotius (1583-1645). The concept of “genius” has attracted the attention of many disciplines: history, psychology, neuro-science, music, literature, and others. Deﬁnitions vary, but usually “creativity” of one kind or another is regarded as a necessary component. It might be questioned, then, whether jurists can qualify for admission to the circle, since legal scholarship is usually cumulative in nature, leaving little scope for genuinely original thinking. Yet, in his lifetime, few denied the status of genius to Hugo Grotius. For the people of the Netherlands, Grotius is also one of their greatest national heroes. It is relatively uncommon for an intellectual giant to attain heroic status. When genius and heroism do coincide it is almost invariably in circumstances of religious or political turmoil that force intellectuals to commit themselves to a choice that can have dangerous consequences, sometimes at the cost of their lives. Grotius grew up in the most dangerous of times and places, when the Lowlands were a cauldron of animosities. The scholar who would become the most famous ﬁgure in the history of international law was born in Delft on Easter Sunday in April 1583. In Stratford, England, Shakespeare had married Anne Hathaway several months earlier, but had not yet begun to write any of his plays. At that time Delft was best known for the quality of its woolen cloth, but its pre-eminence in textiles was now under challenge from its English competitors. Soon its commercial reputation would rest more comfortably with its famous beer and pottery (Knight, 1925). The Europe into which the great scholar was born was wracked by interminable strife: a “hell to live in” (Vollenhoven, 1926). The region that was to acquire ascendancy in the 18th century had virtually lost the vision of international unity that had animated the most progressive of the classical secularists of Greece and Rome. The universalism explicitly inherent in Christianity was no longer achievable. By the 1580’s Western Europe had been “split up and rent asunder … torn by international war, religious war, [and] civil war … Piracy and buccaneering were paramount in every sea”. The specter of anarchy was present, not least in Flanders. As Vollenhoven laments, “if this was to be the outcome of sixteen centuries of Christianity, of a new period of explorations, and of a new kind of civilization, it was a shame to Christendom and to mankind”. The threat of political disintegration in the late 16th century was not conﬁned to Western Europe. In China the great Ming civilization was in terminal decline, seemingly conﬁrming the theory of inevitability associated with the rise and fall of Chinese dynasties. In the year before Grotius was born (1582), death had come to Chang Chucheng (?-1582), the last of the great ministers of the Ming dynasty, leaving the government at the mercy of incompetent emperors, unscrupulous oﬃcials, frustrated reformists, and bandit leaders such as Li Tzu-ch’eng (c. 1605-1645). As it collapsed in

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upon itself, the Ming dynasty was about to give way to a second wave of non-Chinese invaders, the Manchus, in 1644. So the lifetime of Grotius coincided almost exactly with the disorderly period between the decline of the Ming and the emergence of the Ch’ing (Reischauer and Fairbank, 1958). The Grotian years were also a period of conquest in India. But there, unlike China and Europe, a leader of modern-style eﬃciency and enlightenment was emerging. Akbar (Jalal-ud-Din Mohammed) (1542-1605), “the Great Moghul”, was grandson of the ﬁrst re-uniﬁer of Northern India, Babur (Zahir-ud-Din Mohammed) (1483-1530). If there is anything in genetic predisposition, Akbar was highly likely to become, as he did, one of the great conquerors of world history. He was descended, on his grandfather’s side, from the mighty Timur (or Tamerlane) (1336-1405), organizer of ferocious expeditions out of Samarkand that wasted territories as far east as Delhi. On his grandmother’s side, Akbar was in direct line from the much earlier and no less formidable Genghis Khan (or Jenghis) (c. 1167-1227), the greatest of the Mongol warriors. Once launched on his own war-making career, Akbar added substantial territories to those he had inherited from Babur. By the end of his long reign, when Grotius was only 22 years old, Akbar had reassembled the empire of Northern India established by Asoka the Great. Akbar was Muslim, but, like Asoka, he was unusually tolerant of religious diversity. During his reign, Northern India was once again united, and a beneﬁciary of what would become one of the most stable and eﬃcient administrative systems of that era. Akbar’s civic structure would remain intact into the 18th century, the early period of British Empire in the East (Roberts, 1995). Stability was also the principal feature of the Ottoman Empire when Grotius was growing up. The Turkish Ottomans (or Osmanlis) were based in Istanbul, but by the end of the 16th century their empire comprised most of the Arab-speaking peoples, and they were not yet at the furthest extent of their penetration into Eastern and Central Europe. The Ottoman culture was mixed, but the huge, centralized bureaucracy that had evolved operated mostly on the basis of an Arab legal tradition. Taxes were levied and collected on a regular basis. Documents and accounts were carefully preserved. The Ottoman bureaucrats might be regarded as the creators of the ﬁrst archival system of the modern world. Diplomatic relations were maintained with many of the countries of Eastern Europe, and considerable eﬀort was made to avoid unnecessary conﬂict with Spain in the West (Hourani, 1991). So Western Europe had much to learn by looking East, if anyone was suﬃciently open-minded to look beyond the limits of Christendom. Throughout the 1580’s and 1590’s there was little reason to suppose that the Christian West should become a model for the fashioning of international law and order. While Grotius was an infant, expansion of the Spanish Empire had reached its highest point. Portugal had capitulated to the Duke of Alba’s army in 1580. Philip II commanded forces of unmatched power. His army consisted of 20,000 infantry and 15,000 cavalry in Spain, 15,000 infantry and 9,000 cavalry in Portugal, 60,000 infantry and 2,000 cavalry in Flanders, 24,000 infantry and 2,000 cavalry in Naples, Sicily and the rest of Spain (Kamen, 2004).

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With the conquest of Portugal, the Spanish war ﬂeet could now be based in Lisbon, facing outwards to the vastness of the American colonies. Philip II, proclaimed king of Goa in 1581, was believed by most observers to be reaching out under a strategy of world domination. In 1584 he reinforced these fears by preparing for the conquest of England to secure the Indies and the reconquest of the Netherlands. Four years later, the Great Armada left La Coruna on a mission that would turn into Spain’s greatest imperial disaster. The resources brought under the command of the Duke of Medina-Sidonia may have exceeded the English forces in tonnage and numbers: 130 ships carrying 7,000 seamen and17,000 soldiers. They were under orders to rendezvous with the main Spanish military force of 17,000 men in Flanders. If this had happened as planned, it is possible that they would have prevailed, despite what Philip’s advisers knew to be “grave deﬁciencies” in the Spanish plan (Kamen, 1997). But the Spanish navy was less seaworthy, less maneuverable, less well-armed, and less well-manned than the English ﬂeet. Commanded by Lord Howard of Eﬃngham, Francis Drake, John Hawkins, and Martin Frobisher, the English squadrons broke up the Spanish galleons, ruling out the possibility of their reaching Flanders and the invasion army waiting there. Spain’s defeat did not terminate the era of Spanish domination in the West, but it did mark the beginning of a gradual decline (Kamen, 2004). The Life and Works of Grotius. Hugo was the product of a prominent family. His father, Jan de Groot, was curator of the University of Leyden from 1594 to 1617, and his uncle, Cornelis, was professor of law at the same distinguished institution. For four years Jan served as burgemeester of Delft. The Groot household was ﬁlled with political talk. When Hugo was only one year old, Prince William of Orange was assassinated in Delft by an agent of Philip II. Much has been made of the precociousness of Hugo: as the composer of Latin verses at eight, as entrant into university at eleven, and as doctoral recipient at ﬁfteen. Yet as Knight (1925) reminds us, these impressive youthful achievements were not so uncommon at that time. In 1595, more than one-third of students matriculating at Leyden were under sixteen, and eleven were in their thirteenth year. Two others under twelve were class-mates of Hugo when he entered university. At that time, a university was a place for boys, not men. Moreover, we might accept Knight’s assurance that the publication of Latin verse, at that time and place, was “a function of family wealth as much as indication of rare talent”. Other biographers have insisted, however, that Grotius was recognized as a genius shortly after beginning his studies at the University of Leyden in 1594, then in its 19th year. This seems credible, since only four years later, at the age of 15, the youth accompanied the statesman Aarneveld on a diplomatic mission to Henry IV of France in a futile eﬀort to eﬀect a mediated truce between the Spanish and the Dutch. It was in Paris that the youth’s reputation as a prodigy was ﬁrst given international recognition: “Behold the miracle of Holland!” From that point, it may seem reasonable to compare Grotius with Mozart and other youthful celebrities of genius.

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By the time of his remarkably early venture into diplomacy, Grotius was already well versed in law. In the following years he began to practice law at The Hague. Before he was out of his teens, a stream of treatises, essays, poems, and translations were ﬂowing from his pen. His erudition was already seen to be comparable with that of the youthful Erasmus, spanning mathematics, philosophy, history, logic, rhetoric, literature and theology, as well as law. Vreeland (1917) suggests that law was far from his favorite subject, but his brilliant intelligence ensured a steady demand for his services as an advocate, as in the case in Gentili. It was in that capacity that Grotius wrote his ﬁrst major legal work, On the Law of Prize (De Jure Praedae) apparently between 1604 and 1606, although it was not published in its entirety until 1868 (Knight, 1925). It was written on behalf of his client, the Dutch East Indies Company, contesting the Portuguese claim to monopoly under the 1493 Treaty of Tordesillas. In 1598 a ﬂeet of 22 commercial vessels had sailed from the provinces of Holland and Zeeland to engage in trade in the East Indies. The Portuguese government regarded these Dutch traders as “sea-rovers”, akin to privateers, but the Company refused to relinquish its claim to the right to trade, just as the English and French traders were making a similar claim against the Spanish. De Jure Praedae was written by Grotius at a time when the Dutch were emerging from a long struggle for political and commercial independence. The principal enemy was Spain, but Portugal had become a part of the enemy empire. As far as most Dutch traders were concerned, the United Provinces were at war with both of these countries. Both were using force to block Dutch eﬀorts to establish legitimate trade links with the East Indies. Accordingly, it was open to the Dutch East India Company to “take prize” through the capture of enemy Spanish and Portuguese vessels. However, the lawfulness of prize was a matter of controversy among Dutch scholars at that time. The issue became acute in 1603 when the Dutch admiral Heemskerek brought home a huge Portuguese treasure ship captured in the Strait of Malacca. The booty of this capture was oﬀered for distribution among the various enterprises that had amalgamated under the Dutch East India Company, an entity commissioned by the States General to engage in such activities. The policy of the government that the Company was entitled to wage war and take prize in this fashion did not, however, have the support of all shareholders. The Mennonites, in particular, were paciﬁsts. Opposed to war under any circumstances, they refused on principle to participate in the division of the spoils. Some went so far as to sell their shares, and attempted unsuccessfully, ﬁrst at home and then in France, to establish in competition a new trading company placed on a higher ethical plane. To all jurists of that era, the issue here was a controversy in the law of war (jus belli). To Grotius it was an opportunity to put the matter within a larger context. So the ﬁrst part of De Jure Praedae (consisting of Chapters Two to Ten) is devoted to a general exposition of the relevant part of jus gentium. The second part contains a description of the political history of Dutch-Portuguese relations, and in particular the history of Indo-Dutch navigation, so that the reasonableness of the Dutch position would be free of doubt. The work ends with a stirring peroration in support of the conclusion that the Dutch taking of Portuguese prize was morally justiﬁable, and even necessary (Knight, 1925).

Shaping of the Modern World (1492-1645)

The central part of Grotius’ legal argument was contained in Chapter Twelve, which was published separately in Dutch in 1608: the celebrated Mare Librum, which was referred to in the law-of-the-sea vignette in Chapter One. As Grotius argued, what was permitted by the law of nature, and not waived by treaty, was permissible. The right to trade and to navigate on the open seas was universal. No fact of possession could subvert this principle of the law of nations (ius gentium). The Portuguese had no title to the Indies, no right to territory by reason of occupation, discovery, or conquest. The sea itself was not amenable to occupation. No title by prescription could arise, as in the civil law of property, because it would violate the law of nature. To bolster his arguments, couched in the form of scholastic “dogmatics”, Grotius draws upon a wide variety of “authorities”. These include St. Thomas Aquinas, Cicero, Plato, Quintilian, Seneca, Gaius and others of classical antiquity, as well as more recent jurists such as Suarez and Gentili, to show the continuity of legal opinions favoring the views of his client. As Knight suggests, it is “the production of a patriotic youth, precocious in learning and literary expression. It lacks accordingly the severity given by experience, always breathing the passion of an advocate rather than calmly enunciating the ﬁnding of an impartial and ripe judge …”. Even if it lacks the “progressive and humanitarian element” of Grotius’ later work, it is “crammed … with classical, theological, philosophical and juridical erudition”, displaying “a remarkable rapidity of thought, a delicacy and brilliance of touch, and an irresistible force and warmth of style”. Basic to his client’s purpose, Grotius enunciates his famous, and historically inﬂuential, argument that all nations have a right to engage in international trade: a fundamental freedom to compete, freely and equally – as we would say today – in the global market place. This right is absolute and indefeasible: it cannot be destroyed. “Not even temporal sovereigns in their own dominions have the right to prohibit the freedom of trade”. A claim to trade monopoly – with or without papal sanction – has “absolutely no force against the eternal law of nature and nations from whence came that liberty which is destined to endure forever and ever”. No one previously had ever made this bold assertion with such passion, conviction, and indeed precision (Roelofsen, 1990). Few propositions have resonated so vibrantly down the ages, through the entire 400-year history of “market capitalism”. It anticipated the ethic of laissez-faire that would be articulated famously in the time of Adam Smith, 175 years later, in his Wealth of Nations. Those who hail Grotius as the “father of international law”, such as Vreeland (1917), see in Mare Liberum a stream of seminal insights into the future of international law that can be compared with the equally creative thinking of the “father of economics”. In the years that followed the publication of Mare Liberum, the dangers of Grotius’ immediate world crowded in upon him. The issue of the day, from which he could not escape, was the theological confrontation in the Netherlands between the Calvinist majority and the Armenians, who formed a majority in only two provinces, Holland and Utrecht. At the University of Leyden, Grotius had been a student under Jacobus Arminius (1560-1609), a peaceful non-polemical scholar, whose mild questioning of the strict doctrine of predestination nevertheless provoked an uproar among the more extreme Calvinists.

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Reluctantly, Grotius was drawn into the fracas. As a boy, it is said, he had become convinced of the merit of religious tolerance, and yet at twelve he converted his Catholic mother to the Protestant cause. No credit was given for this theological coup. In 1618 he was arrested by the States-General, and in the following year tried, along with Johan van Oldenbarnevelt and Rembout Hoogerbeets, before a special tribunal. Despite its lack of jurisdiction, the tribunal found Grotius guilty of heresy (or was it treason?), and sent him to prison. Fortunately for Grotius – and posterity – his wife succeeded in eﬀecting his escape in a book-chest. Dutch school children today still enjoy this famous story, not least because the chest was carried out by the soldiers appointed to prevent his escape! In disguise, Grotius proceeded safely from Antwerp to Paris, where he remained in exile until 1631. After a brief return to Amsterdam, Grotius had to ﬂee once more, this time to Hamburg. There he lived, unproductively, until 1635, when he was appointed Swedish Ambassador to France (Dumbauld, 1969). The balance of historical judgment tends to regard his career in Queen Christiana’s service as undistinguished, arguably because the scholar in Grotius kept overriding the diplomat. Those committed to Grotius as the founder of the “science” of international law give the greatest, weight to his magnum opus, On the Law of War and Peace (De Jure Belli ac Pacis), which was published in 1625, while he was in exile in Paris. Scholars diﬀer, however, on virtually everything associated with the great Dutch encyclopedist. Many regard his non-legal works as his greatest achievements. Most civil law specialists value his history of Dutch law more highly than his excursions into the “shadowland” of the early law of nations. Even among those chieﬂy interested in Grotius as an international lawyer, there are deep, and sometimes bitter, divisions on how his contributions to the law of nations should be interpreted. The academic literature on Grotius as international lawyer, alone, is so voluminous and complex that it is virtually impossible to oﬀer a succinct account that would be generally accepted within the scholarly community. To venture opinion on Grotius is to tread on a mineﬁeld. However, it might be permissible in this non-technical work to distinguish ﬁve kinds of contributions associated with this most illustrious of ﬁgures in the history of international law. (i) Grotius was a synthesist, who built a bridge between the natural law tradition of classical antiquity and the early modern imperative to press ethical constraints upon the unprincipled power-holders of his own vicious times. (ii) Grotius was a universalist, whose conception of natural law, rooted in the rationality of all humanity, underlined the need to construct a global legal order inspired by the evidence of civic benevolence values in all cultures, old and new. (iii) Grotius was a Christian humanist seeking to integrate respect for the role of spirituality in human aﬀairs with the need for stable and enlightened government within the emerging modern system of autonomous secular states. (iv) Grotius was a system-builder, the creator of legal structure in the law of nations, who furnished the future science of international law with a comprehensive

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framework of legal constructs and norms that deﬁned the scope of the law of nations until the modern era of institutional developments at the global level. (v) Grotius was a liberal idealist, who anticipated the new Western ethos of entrepreneurial achievement based on the freedoms of movement and communication throughout the four continents of the discovered world. Each of these perceptions is of course, open to challenge by Grotian specialists, who are close to the many trees cultivated by this planter of an exceptionally fertile forest. Reﬂections. For those who think of international law as a wholly secular phenomenon, it may be useful to recall that the early modern law of nations in Europe owed as much to the ethical principles of post-medieval theologians as to the civic values and principles of the secularists of classical antiquity. Yet, as the works of classical scholarship were being rediscovered, the distant past was acquiring new relevance as legitimizer of the present. The sophistication of new progressive ideas in European civic aﬀairs depended more than ever before on those scholars who could draw out the links between the ideals of ancient Greece and Rome and the new realities of power-holding by those now vested with legal sovereignty. In the century following Erasmus, Hugo Grotius was the most encyclopedic of Europe’s leading scholars. A modern reading of his works on the law of nations shows how much weight he placed on the enlightened ideas and practices of the distant past. Relatively little use could be made of European practices in the pre-modern era between the fall of Rome and the 16th century. It has been supposed that Grotius’ reluctance to invoke recent European state practice was due to the political controversiality of such a mode of legal reasoning. Ironically, the invention of printing in Europe, which led immediately to the rediscovery of the classical world, contributed surprisingly little to empirical research on the policies and practices of Western states in the 16th century. Decisions continued to be made by rulers and their oﬃcials behind a screen of privilege. As we shall see in the next chapter, jurists became increasingly respected ﬁgures in the intellectual community with the growth of modern state institutions. However, their inﬂuence on oﬃcial decisions would remain somewhat remote until the emergence of a technical bureaucracy at the national level and of a professionalized diplomatic community at the international level. Themes and Controversies Questions. The strongest admirers of Hugo Grotius, mostly in the Netherlands, have striven to commemorate him through societies, conferences, journals and monographs named in his honor. But it is too early in the story of international law to take stock of the “Grotian tradition” and of the reactions against it. Almost no one nowadays reads famous legal works of the 16th or 17th century. The style and content of legal scholarship have been transformed since the death of Grotius in 1645. Today Grotius is very seldom cited as an authority on a point of law.

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So can we agree with Martin Wight (1987) that it is worth the eﬀort to “pick a path again through the baroque thickets of Grotius’ work, whose profound and potent principles lurk in the shade of forgotten arguments and obsolete examples, like violets beneath the gigantic overgrown rhododendrons”? What were the doctrinal themes that captured the attention of international jurists in the late 16th and early 17th century? How many of these themes were new? How many continue as the focus of debate in today’s literature? Was there any evidence of a gathering consensus among Grotius and his distinguished predecessors? How strongly did their opinions clash? To what extent did legal controversy contribute to diﬃculties in political accommodation, as the European system of sovereign states was beginning to jell? International Society. Of the early modern jurists, it was Vitoria who took the most optimistic view of the future, of a world evolving into a single international society. He constantly reminded his compatriots that Spain, the chief power, was also a citizen of the world. Like Aquinas, he envisaged a trend toward a solidarity of all peoples, equally free, within a superior community whose ultimate goal would be the welfare of all humanity (Mechoulan, 1988). Yet even Vitoria, the universalist, can be seen as an apologist for the power-holders of the day, both spiritual and temporal. The saintly Dominican has been characterized as a product of his time, when the drive for colonial expansion had to be legitimized as a “natural” phenomenon, provided it was prosecuted without resort to barbarism (Delos, 1939). Grotius was much more cosmopolitan than Vitoria in his view of the world. In seeking to accommodate all trends of world history in his depiction of the future, he oﬀered a vision of a worldwide rule of law extending to all cultures and all religions. No doubt he would have deplored the Eurocentric attitudes that were to shape the classical model of international law in the 19th century (Vollenhoven, 1926). It can be argued that Grotius too, like Vitoria, was a “solidarist”, but perhaps less so than Suarez (Kingsbury and Roberts, 1990). Most political scientists see the realist, rather than the utopianist, in Grotius, and place him closer to Gentili than to Suarez in his relativist and structuralist conception of world society. Martin Wight (1987) attributes to Grotius and his contemporaries the concept of a world order consisting of two concentric circles. “The inner circle is the society of Christian states, possessed of special rights and duties originating both in the commonality of their shared perceptions and in the rectitudes of the Christianity which underlay it. The non-Christian communities in the outer circle were part of the system, not through positive volitional law, but through natural law”. Bull (1976), however, warns modern interpreters of the past against the temptation of inventing ideas that did not actually exist at the time in question. Natural Law. The Western doctrine of natural law goes back more than 2,500 years into the age of ancient Greek philosophy. Its relationship with international law is complex. In the early modern period, no one expressly repudiated the notion of a law of nature. In varying degrees, it was accepted that fundamental legal principles had evolved from the distant past, where common or customary practices were the

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expression of “human nature” and the workings of “reason”. Vitoria contributed the concept of the law of nations (ius inter gentes) as a system of law which, though derived from natural law, is “positive” – that is, posited by human institutions – and yet binding on the entire world community, including the recently discovered polities of the Americans (Vitoria, 1917). Suarez also stressed the “positive” nature of this law, which he conceived as a political and moral unity (Puente Egido, 1984). Grotius added a new dimension to ius gentium, which he conceived as “founded upon convention and usage, diﬀerent but not separate from natural law” (Puente Egedo 1984). The positivists would later break away from the abstractionist natural law tradition in order to emphasize the need to deal empirically with treaties and customs as the proper “sources” of international law. To support their argument they would discern elements of positive as well as natural law in the works of Grotius, who was therefore portrayed as an eclecticist. It was easier to separate the emerging law of nations (ius gentium) from the law of nature (ius naturale or lex naturale) if there was no obligation to remain faithful to Catholic theology. As Nussbaum (1962) observes, all the leading international jurists after Grotius were Protestants. As late as the mid-19th century, many Catholics still viewed international law as “a Protestant science”. But at the time of Grotius it was still common ground between Catholics and Protestants that the principles of the law of nations were essentially elements of natural law. What they all shared in the mid-17th century was the conviction that the binding rules of conduct were grounded more deeply in natural law than in treaties and customs that had obtained the consent of nations. All envisaged the evolving law of nations as a normative system strongly inﬂuenced by Christian values, though they diﬀered on the extent of the modern world’s debt to pre-Christian antiquity in the West and to non-Christian civilizations in the East. Just War. War-related issues absorbed most of the energies of international jurists of the early modern era, as of theologians and other scholars in the pre-modern era. The key questions were: in what circumstances, if any, was resort to war lawful or legitimate (ius ad bellum) and what legal or moral duties constrained the conduct of parties to hostilities (ius in bello)? These questions may seem familiar to most readers. The volume and prolixity of writings on these issues – arguably among the most fundamental in international law even today – are prominent features of the literature of the 17th century. As we have seen, many moralists, East and West, have opposed war in virtually absolute terms, but lawyers, sensing the need to remain useful within the domain of political reality, have not always found the matter so easily disposed of. For over two thousands years before the lifetime of Hugo Grotius, most philosophers, theologians and jurists have exchanged opinions on the ius ad bellum within the framework of the “just war” doctrine. Surprisingly perhaps, most medieval theologians were prepared to accept war as natural, or even as part of the prescribed order. St. Augustine, for example, saw war as a function of divine providence designed to punish sin or crime. He did not consider the “paciﬁc counsels of the New Testament to constitute a prohibition of all

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wars”. The Old Testament oﬀered countless examples of just wars waged by Israelites against their enemies. For most early modern participants in that famous, long-lasting debate, a war might be considered just if the circumstances of resort to force disclosed a “just cause”. The concept of just cause was highly developed in the late Roman Republic, and it underwent further sophistication – indeed encouraged sophistry – through the Middle Ages (Russell, 1975). It has never gone entirely out of political fashion, despite shifts in legal terminology. Many might agree with Russell that the larger concept of “just war” is still “an ethical and religious doctrine surfaced with an often thick veneer of legality”. Those of us not entirely committed to paciﬁsm may have to confess to ambivalence. At the least, just war doctrine placed the burden of proof on would-be just warriors, who were required to rationalize the grounds for their dangerous and violent actions in accordance with principles of ancient origin. But it can be objected that such debates are self-contradictory exercises, since the doctrine has been expected to fulﬁll two purposes that might be considered incompatible: the justiﬁcation of resort to war and restraint in the practice of violence. It remains an open question whether the doctrine has prevented or limited more wars than it has vindicated. Vitoria’s views on just war were moderate. Some of Spain’s claims justifying the use of force against the aboriginal peoples of the Americas were accepted as just, others dismissed as unjust. He went so far as to consider that the counter-wars of the “Indians” against the Spaniards might be just, at least in a subjective sense, if they were fought in a state of “excusable ignorance” (Nussbaum, 1962). Suarez, made of sterner qualities, approached these ethically delicate issues in a coldly logical, legalistic fashion. He introduced the concept of “charity” as well as “justness”, and had no diﬃculty in deploying Jesuitical reasoning to show how the two can be brought into opposition. Yet, unlike Vitoria, he could not imagine how war might be just on both sides. Curiously, his concept of “charity” did not extend to the ius in bello. Gentili, on the other hand, was clear that a war may be just on both sides, objectively and not only subjectively, as Vitoria conceded on the ground of excusable ignorance. He introduced a measure of modern normative relativity by adding that there may be diﬀerent degrees of justness. For Grotius, just war was permitted by the law of nature and the law of nations. A list of just causes was provided and defended. Just war was also permitted by divine law as reﬂected in the Old and New Testaments (Dumbauld, 1969). Grotius seems to have taken the position, contrary to Gentili, that a war can be just on one side only, although this does not seem entirely consistent with his view that both belligerents might be acting in good faith (Munch, 1981). On the other hand, Grotius espoused the juridical view that the justness or unjustness of a war is irrelevant to questions concerning the legal eﬀects of war. A war “properly declared” under the law of nations, he wrote, confers the right to harm the enemy, but this right is limited in the case of prisoners of war as distinct from combatants. The right to harm the enemy in combat did not excuse the parties from their responsibility to deal with each other in good faith (Grotius, 1925).

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Moreover, Grotius went further than his predecessors in developing in considerable detail the reasons for moderation under the ius in bello (Nussbaum 1962). Indeed it was one of Grotius’ most important contributions to make the obligation to observe the ius in bello – to conduct war in a humane manner – a central feature of just war doctrine (Kingsbury and Roberts, 1990). His linkage between ius in bello and ius ad bellum was consistent with his view that war was legitimate only if it was “a ﬁght for the common good against an enemy who violates the basic norms of international society”. Accordingly, the overall Grotian position on the law of war was that war cannot be abolished, and that the law of nations on that matter (ius belli) is a realistic alternative to the darker philosophy of political realism. Neutrality. Before Grotius, no one had dealt systematically with neutrality as a legal concept. The practice of remaining neutral at a time of hostilities between others is, of course, a political option that has been recognized for thousands of years. It was a policy considered controversial only in circumstances where it constituted a failure to meet expectations of support founded on alliance or on a tradition of close loyalty to one of the belligerents, as in the case of the ancient confederation of Greek citystates. But the legal rights and duties of a neutral state were not clearly and generally agreed upon before the early modern period of Western history. The Grotian era was, however, not ready to secure the rights of neutral states. In an age that still accepted the notion of a just war, countries that remained aloof from a conﬂict were not eligible for a privileged status, especially in a conﬂict directed against a non-Christian enemy (Bindschedler, 1982). Grotius held that the just-warrior state, the righteous belligerent, possessed the right of transit through neutral territory. If the belligerent had a just cause, it could not be expected to be deterred by other states wishing to preserve a status of impartiality. Other states had a responsibility to cooperate with a belligerent that was in the right and seeking to avenge an injury. This non-modern view reﬂected the bitterness of the religious wars of the 17th century. It also accepted the political reality of the day that most rulers wishing to stay out of the fray were simply unable to prevent belligerent armies from tramping through their territory (Nussbaum, 1962). Treaty Obligation. The dominance of natural law in the early modern law of nations ruled out the more modern idea that treaty obligations might be paramount. Such a view could not prevail until it became more generally accepted that the law of nations was a consensual system of sovereign states. In most civilizations it was essentially possible to ﬁnd evidence of respect for the binding eﬀect of treaties, not unlike that of private contracts, but the concept of a treaty was almost always imprecise. The institution of a “covenant” had religious overtures that seem to vest it with a measure of sanctity. In the Koran, for example, deference is given to the bindingness of a treaty, likened to a pledge of honor. Throughout the Middle Ages, however, treaties were generally regarded as the personal undertakings of rulers, binding only during the life of the contracting parties. The idea of treaty succession had not yet taken hold, despite arguments by Gentili in its favor.

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Neither Suarez nor Gentili dealt systematically with treaties. Like others of their time, they were chieﬂy interested in treaties of peace and alliance, which were often deemed to be of great political importance but notoriously short-lived at a time of almost constant warfare. The unlikelihood that these or any other treaties could endure precluded agreement on the generic basic norm that treaty obligations must be observed (pacta sunt servanda). Gentili’s work on the law of treaties is notable for the idea, which he introduced, that a peace treaty is to be interpreted as binding only as long as conditions remain unchanged. This doctrine, suggesting an implied condition known as clausula rebus sic stantibus, originated in medieval canon law as a way of softening the rigor of the civil law, which in turn reﬂected the formalistic strictness of the Roman law of contract. This doctrine has survived to the present day, although it has caused a great deal of controversy in its application. The tolerance that is a conspicuous feature of the works of Grotius left its mark on his contribution to the law of treaties. Unlike his Christian predecessors, he insisted that the principle of good faith must apply equally to Christian and Islamic treaty partners, just as it did to Catholic and Protestant states alike. Grotius’ insistence on the paramountcy of the good faith requirement in the law of nations is derived from the natural law view that a nation is obligated “to act in a manner that takes into account the reasonable expectations and needs of other nations in the international community” (D’Amato, 1984). Moreover, Grotius devoted much more attention to the elaboration of a general theory that distinguished treaties from contracts, though subject to similar principles. More ﬁrmly than Gentili, he held that treaties were, or could be, binding on the successors to the original parties. As for clausula rebus sic stantibus, he took the position, as Nussbaum (1962) notes, that one would expect from a commercial nation: namely, that the principles of good faith and treaty obligation prevail, except in the unlikely event of a treaty which was clearly concluded in contemplation of a speciﬁc set of circumstances that no longer exist. Diplomatic Privilege. The idea of diplomatic privilege seems to have existed three thousands years ago, but for most of that time it applied only to the person of the envoy. As summarized by Denza (1986), “the duty to give special protection to the envoy who bore messages was observed and enforced by sanctions which were in origin religious”. In the late 16th century the inviolability of the ambassador was established, but the extension of inviolability to embassy premises did not become ﬁxed in law until well into the 17th century. In early modern state practice, as we have seen in the famous Mendoza aﬀair, jurists were occasionally consulted on the extent of diplomatic privilege and immunity. Of those consulted, Gentili wrote at the greatest length on this subject. His opinion was in favor of the ambassador’s immunity from criminal proceedings, even in the case of treason; though qualiﬁed in some degree. But it was still too early for jurists of the early 17th century to consider a “functionalist” approach to diplomatic privilege and immunity, for there was still no such thing as a permanent community of professional diplomats, much less a clear sense of the “functions” entrusted to them.

Shaping of the Modern World (1492-1645)

Piracy and Privateering. As we have also seen, piracy is another very ancient practice, but one not amenable to legal treatment until the late Roman Republic. Cicero classiﬁed pirates (pirata) as “enemies” of all societies (hostes humani generis), implying that these law-breakers were in a constant state of war with civilization as a whole (Rubin, 1989). Conferring this unique legal status upon robbers (praedones) at sea indicates how seriously the problem of piracy was taken by Rome, as also by the Chinese Empire. The passing of these and many other empires, whose authority they undermined, has not altered the unenviable legal status of pirates. The notion that piracy was subject to “universal” jurisdiction – that pirates were outlaws who could be captured and punished by anyone – is reﬂected in numerous international laws compiled in the West in ancient times. These laws included: the pre-Roman Maritime Code of Rhodes and later Rhodian Sea Law, which appeared in the late 7th century; the Rolls of Oleron, which may have originated in the 12th century; the North European ordinances associated with the Hanseatic League, which grew out of the Sea Laws of Wisby in the 13th century; and the subsequent Consolato del Mare, which had a Mediterranean orientation (Gold, 1981). By the 14th century, admiralty courts were being established to administer prize law in England and France (Columbus, 1940). Despite that build-up of “private” admiralty (or maritime) law, Gentili was the ﬁrst of the early modern jurists to argue that piracy was forbidden under the law of nations: that is, under public international law. His argument was that all takings at sea were illegal under the law of nations unless authorized by a sovereign ruler. The purpose of this approach was to empower “legitimate” trading nations with the right to designate violent oﬀenders at sea as “pirates”. This kind of designation served as a tool to deprive the Barbary “states” of international recognition (Rubin, 1989). Grotius, however, took a narrower and less political view of the matter, arguing that the term “pirates” should be limited to those groups that have banded together solely for wrongdoing. Perhaps Grotius could not accept such groups as “natural” communities, but saw them falling rather under the category of what today we designate as “organized crime”. We might agree with Rubin that such a distinction cannot always be easily drawn on the facts. We should bear in mind that both Grotius and Gentili were advocates. Grotius acted on behalf of the Dutch, whose commercial interests were served by “privateering” against the Spanish and Portuguese. Gentili was an agent for Spain in London representing Spanish interests whose trade monopoly claims explained their insistence that only a license from a recognized sovereign could authorize privateering. Merchants not so authorized were pirates. The rules of international law may have commercial as well as political foundations! Acquisition of Territory. The international legal treatment of territory has always been heavily inﬂuenced by the civil law – and hence the Roman law – of landed property. As Nussbaum (1962) observes, the term “occupation”, applied to the seizure of territory not yet subject to sovereign state jurisdiction, is directly borrowed from the Roman occupatio: the appropriation of a thing, movable or immovable, that belongs to no one (res nullius). By extension, land not controlled by an entity internationally

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recognized to have the status of a sovereign state was deemed to be terra nullius. Less controversially, lands abandoned or uninhabited could be regarded as terra nullius (Sharma, 1997). Conversely, entities accepted as possessing territorial sovereignty over their lands were said to have “dominion” by analogy with the Roman concept of private ownership of land (dominium). In the Age of Exploration, newly found lands created the need for lawyers to justify appropriation overseas. Since occupation involved expensive and risky settlements, it became common in the 16th century to invoke the principle of acquisition of title to territory by reason of discovery: the “right of ﬁrst discovery” (Preiser, 1984). The recognition of discovery, as a legally approved mode of territorial acquisition further undermined the notion of papal authority to allocate new lands to the favorite sovereigns of the day, and reinforced the Holy See’s perception of international law as a “Protestant science”. In many situations in the 16th and 17th century, the taking of overseas lands involved the use of force. At a time of almost constant warfare, when many wars could be justiﬁed as “just”, it seemed conscionable to many jurists of that era that territory could also be acquired by conquest. However, given the views of St. Augustine and S. Thomas on the injustice of wars of conquest, it is not surprising that Vitoria rejected conquest as a lawful mode of territorial acquisition. Nowhere in his essay On the Indians Recently Discovered (De Indis Noviter Inventis) (Vitoria, 1917) does the Dominican include conquest as a possible mode of acquisition. In Section III of that essay, Vitoria is emphatic that “the Indians are not to be warred into subjection or despoiled of their property, if they give the Spaniards unhindered freedom to preach the Gospel, and this whether they accept the faith or not”. They could have come under the sway of the Spaniards through “true and voluntary choice”, by a “title of alliance and friendships”, but they chose not to do so (Scott, 1934). Suarez agreed with Vitoria that “victors themselves do not acquire ownership”, and denounced the “right of conquest” proposition just as vigorously. Conquest was rejected as a legal means of obtaining territory. Grotius, however, basing his conception of the law of nations on the actual practice of states, could not honestly deny the fact that states down the ages had acquiesced in the acquisition of territory by force. Although he did not favor the practice, its existence could not be denied. In short, Grotius was forced into ambivalence on the theory of conquest by resort to the slippery doctrine of the just war. Although conquest in itself as an objective of war could not be considered just and legal under the law of nations, it had to be recognized as a valid mode of acquiring territory, with certain limitations, based on the customary practices of states (McMahon, 1940). Reﬂections. In light of the above summary of the contributions of Vitoria, Suarez, Gentili and Grotius, should any one of them be hailed as the “father” of international law? Scholars will always diﬀer on this familiar question. Much depends on how one wishes to focus on the themes and controversies of their day, and on the weight to be given to chronology. Vitoria was not, in fact, the ﬁrst of the great early modern scholars who could be classiﬁed as an “international jurist”. Precedence has to be conceded to a pre-mod-

Shaping of the Modern World (1492-1645)

ern scholar, Paulus Vladimiri (c. 1371- c. 1436), a Polish aristocrat and contemporary of John Hus (c. 1370-1413), the Bohemian reformist. Vladimiri wrote voluminously on many subjects, including the law of nations, more than a century before Vitoria. However, his works have been re-discovered by Belch (1965) too recently to be subject to fair and critical comparison with the much better known, and venerated, writings of his successors in the 16th and 17th centuries. Each of Vladimiri’s famous successors is venerated for diﬀerent reasons. Vitoria symbolizes the human decency that we would wish to see reﬂected in the human values of the contemporary system of international law. He might be considered the ﬁrst modern scholarly expositor of the civic enlightenment model. Suarez was a much more systematic jurist than Vitoria, arguably a more imposing intellectual ﬁgure in the period of transition from medieval to modern thought. He embraced a much wider scope of legal inquiry than we can ﬁnd in Vitoria’s posthumous and edited writings. Gentili was a professional lawyer, representing the breaking out of the law of nations as a separate discipline. He was also the ﬁrst great Protestant contributor to the “Protestant science”, freed from chains of loyalty to Catholic theology. Grotius is surely the most astonishing of these famous scholars. His erudition was on a mammoth, unparalleled scale. He showed an exquisite sense of balance between legal idealism and political realism. Yet he seems not quite so noble as Vitoria, and he owed much to Suarez, and even more to Gentili. In conclusion, it seems best to take the view of Mechouan (1988) that paternity is simply the wrong metaphor. International law was never “born”. It is best seen as a long process of ethical, normative, institutional, and even psycho-cultural evolution. The jurists of the pre-modern era became famous, and famously inﬂuential on posterity, because they were the children of the printing revolution. They were inheritors and transmitters of the past more than prophets or designers of the future. Final Reflections World discovery in the 16th and early 17th centuries had both positive and negative eﬀects on the development of international law. It opened the eyes of idealists to the true scope of universalism, and to the magnitude of the task of bringing all cultures and civilizations together within a single framework of laws. It also created greatly expanded ambitions for personal and dynastic enrichment. Exploration overseas was quickly followed by discovery, occupation, prosyletization, and often conquest. The pattern of distant colonization had begun. The seeds of “world empire” were sown, and also the seeds of tragic conﬂicts that would complicate and prolong the best efforts to establish an international legal community. Religious discord erupted continuously, spewing streams of animosity among the major religions and opening up fractures within the Christian and Islamic communities. But humanists, idealists concerned with human welfare rather than purity of faith, were breaking free from traditional dogma and other forms of intolerance. The new ethic of secular humanism now oﬀered at least a glimpse into a future world of public morality based on the rule of law rather than scripture.

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In the West, the spirit of the Renaissance and the Reformation liberated the human imagination, creating a much more exciting, but also dangerous, stage in human development. Along with poets, playwrights, artists and musicians of genius, lawyers of talent were increasingly important respondents to the challenges posed by the expanding universe. The development of law was just beginning to be perceived as a creative process with beneﬁts for all. Preeminently, the early modern era was the stage of world history when the modern state emerged, full of promise and menace. To an unanticipated degree, Europe was about to export unwanted theories of government and justice around the new world of four continents. From an unknown well, energies were being drawn up that would transform economies and societies almost everywhere. Of the twelve models of international law, as identiﬁed in Chapter Two, four can be seen to have been part of the debate among the early modern jurists. The growing acceptance of a system of sovereign states introduced the prospect that state autonomy would become the dominant value in international relations. Statism is, in short, the most important ideological outcome of the 16th century controversies over civic issues. State autonomy was accepted increasingly as the pivot of the emerging world system, especially with a view to ensuring order and stability. During the civil, religious and international strife of that era, the fear of anarchy drove rulers to build stronger legal institutions around themselves, even before the development of powerful central bureaucracies and a permanent diplomatic community. Jurists were still divided on the central issues of war prevention and management, as they are today. With the rise of early modern humanism in Europe, we see the ﬁrst phase of a process of gradual detachment of civic enlightenment ideals from Christian “universalism” to secular globalism, especially in the works of Grotius. The stage is set for a dramatic encounter between the Grotianists and his detractors.

7 Constructing the Imperial World-system (1618-1815)

Europe in Ascendancy However resolutely we depict the law of nations as a universal enterprise, we cannot discount the predominance of European inﬂuence on its development during the 17th and 18th centuries. In 1618 the world was still a four-continent universe. By the end of the 18th century the ﬁfth continent had been discovered, but not yet fully imagined. By 1815 the United States was slowly coming together as a major power, but it was still too early for the future scope of Westernization to be foreseen. It was the age of European dominance, and of nascent world imperialism. In the early 17th century European enterprise had many facets. Behind the aggressive feats of empire-building, new energies were marking out the European system of civilization as the driver of world history. Nowhere previously had there been such widespread determination, within so many cognate but distinct cultures, to realize the limits of the human universe. Cheng Ho’s expeditions of the Ming dynasty may or may not have reached the perimeter of Australasia and the Arctic archipelago, and even the Antarctic landmass. The Chinese may or may not have settled for a generation or two in parts of the New World (Menzies, 2002). But clearer to see is the absence of Chinese will to establish a world-system of Asian imperial design. It would be European ambition and technology that asserted themselves in the age of modern conquest and colonization. Europe in the 17th century was still dazzled by the blaze of gold in the New World. Increasingly it was being lured by the spices of the East and the hidden promises of Africa. Europeans could not resist the prospect of gain in the three other continents. Yet the plundering of their resources coincided with an awakening of European sensibilities. The new cosmopolitans of the era might have been expected to shrink from the bloodier tasks of imperial rule. Europe was, after all, the cultural site of impressive social and artistic reﬁnements, and the laboratory for totally new modes of critical thinking. The period we are now entering was to witness the stamping of European civilization on the entire world through the agency of empire. These two centuries would provide the apparatus of permanent diplomacy and the conceptual framework for the law of nations, designed above all to empower the sovereign state. It also introduced the vision of world culture.

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Around 1610 William Shakespeare had retired from his writing career. Somehow he had survived the political tempests of London and the growing inﬂuence of the new censors. Now he “drowned his book” in the shallows of the Thames, and returned for the last time to Stratford, where he lived out his last six years as a wealthy squire and a generous benefactor to the local community. On his death in 1616 Shakespeare was acclaimed by the men of the theater as “the bard for all time”, in the words of the most cantankerous of his drinking companions. In writing for all, high-born and low, he had spoken with the tongue of angels, depicting humanity in its inﬁnite variety, crossing all boundaries of culture and ideology. No one before or after Shakespeare created such a universally engrossing vision of the human condition. Eventually his plays would become available in translation, for performance or reading, around the world. The printing revolution ensured that this very English writer would move and entertain people of every race and disposition. Lawyers had not fared particularly well in Shakespeare’s plays. In King Henry VI (Part Two), Dick the Butcher expressed the popular distaste for the profession by advising Jack Cade the rebel to dispense with them entirely. Yet in numerous scenes, the claims of justice are heard, and sometimes answered by those in authority. The great playwright and poet accepted the legitimacy of monarchy, but the possibility of benevolent rule was a constant theme. In Spain the glories of the past had faded. The greatest Spanish work of the new century was the satire of Miguel de Cervantes Saavedra (1547-1616). Don Quixote, published in 1605, was written to discredit the romances of chivalry. Obsessed by the ideals of knight-errantry, the modest gentleman tilts at the windmills of the medieval mind, seeing at every turn a wrong to be righted. Even in satire, we suﬀer with Don Quixote as he dies in disillusion, overcome by the realities of the world. Idealism must be tempered, we learn, by the exigencies of society and the state. We must be able to distinguish windmills from imagined giants. In laughing at the old man’s follies, we recognize the need for institutionalized benevolence. This message went out to the world in the ﬁrst novel of world literature. The 17th century was an age of unparalleled European self-awareness, a cultural phenomenon that drew upon the nutrients that had nourished the literary giants of the 16th century. Consider the legacy of Rabelais (1495-1553), who created entertainment out of rebellious wit pointed at the numberless follies of his day; of Michel de Montaigne (1533-1593), the dangerous skeptic, whose invention of the free-ﬂowing essay made doubt a respectable mode of self-expression; and of Lope de Vega (15641635), the proliﬁc and popular playwright, who peopled the stage with every conceivable specimen of Spanish society. The 17th century was to reveal an extraordinary zest for individual expression, but it was the great popular writers, rather than the cloistered scholars, who now led the search for humanity. In art and architecture, the “golden century” was the age of Inigo Jones (1573-1652), Peter Paul Rubens (1577-1640), Frans Hals (1580-1666), Diego Rodriguez de Silva Valesquez (1599-1660), and Sir Christopher Wren (1632-1723), all celebrants of the human spirit. In music, the melodious temper of the age was nurtured by Arcangelo Carelli (1653-1713), Johann Pachelbel (1653-1706), Henry Purcell (1659-1695), and Alessandro Gaspare Scarlatti (1660-1725), preparing Europe’s ear for Johann Sebas-

Constructing the Imperial World-system (1618-1815)

tian Bach (1685-1725), George Frederick Handel (1685-1759) and Domenico Scarlatti (Alessandro’s son) (1685-1757), all born in the same year. In science and mathematics, enormous advances were made by pioneers such as Robert Boyle (1627-1691), Christian Huygens (1629-1695), Gottfried Wilhelm Leibniz (1646-1716), Edmund Halley (1656-1742), and above all Sir Isaac Newton (1642-1727), who was born in the year of Galileo’s death. The forces of tyranny, superstition and ignorance that could not be overcome by science were now the butt of humorists: of satirists following the path of Sir David Lindsay (1490-1555) and Cervantes such as Samuel Butler (1612-1683) and Daniel Defoe (1660-1731). All, of course, were moralists and reformers, embracing radical notions such as that of income tax, as proposed by Defoe in a subversive little essay published in 1697. And all were forerunners of the great Voltaire (1694-1778). Despite the rise of popular nationalist sentiment, the talented elite of 17th century Europe was in constant ﬂux, in an age when travel was not yet constricted by national boundaries and visa requirements. Musicians and painters moved freely around the continent. John Baptiste Lully, the leading musician in the court of Louis XIV of France, was from Florence. John Bull, composer of the British national anthem, was an organist in Brussels and Antwerp. The Flemish artist Anthony Van Dyck spent his later years, like Handel, in England. Even those who chose not to travel sought out foreign sources of inspiration. Frans Hals and Rembrandt (Harmensz van Rijn) were profoundly inﬂuenced by the artists of Rome. Buildings were still dependent on local stone and weather, but much the same style of architecture was seen throughout Europe and beginning to appear far beyond the continent. The Age of Baroque was the beginning of world culture (Ashley, 1969). In this, the ﬁrst epoch of world history that can be truly described as internationally conscious, it was European government that impressed itself on the three other, “discovered”, continents. But the style of government varied more than that of Europe’s architecture. Quite diﬀerent kinds of political experience were being enacted behind similar casements and under similar chandeliers. European political thought in the 17th century spread out in totally diﬀerent directions. France committed itself to the legitimacy of absolute monarchy. Fortiﬁed by the legacy of Bodin, Machiavelli and lesser apologists of power, the French monarchists of the ancien regime prevailed up to the world’s most famous revolution in 1789 (Anderson, 1988). In England, on the other hand, the 17th century advocates of strong, monarchic government, such as the long-lived and formidable Thomas Hobbes (1588-1679), would have to contend with moderate, constitutionalist, and republican writers as diﬀerent as John Milton (1608-1674) and John Locke (1632-1704). It was in England that a lethal civil war had to be fought over profound divisions of religious faith and political ideology, a full century before the undamming of the French Revolution. Questions. All history is an alternation between continuity and change. Even in the history of law, an agency of stability, one looks for the occasional intrusion of new ideas. To what extent was the cultivation of European philosophy, science and art matched by a vision of a more benevolent civic order? How did the diplomatic community respond to the challenge of curbing excessively nationalistic ambitions? Can

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we ﬁnd in the peace diplomacy at the end of the Thirty Years’ War the true “foundations” of the modern law of nations? If the legal order had no “father” in the person of Hugo Grotius, or any of his “primitive” predecessors, did it have a political point of origin in the Peace of Westphalia? How much creativity can we ﬁnd in that famous diplomatic event? The Peace of Westphalia (1648) During the lifetime of so many creative ﬁgures, 17th century Europe was wracked by the cruelest of wars. Yet it proved to be a bridge between two distinct eras of European history. At the outbreak of the Thirty Years’ War in 1618, Hugo Grotius (1583-1645) was beginning to become dangerously involved in the politics of the day. Other men of thought were reacting to the call for action. After two years in meditation, Rene Descartes (1596-1650) was forsaking the study of mathematics to enter a military career under the colors of Prince Maurice of Orange. By the end of hostilities in 1648, Claudio Monteverde (1567-1643) had invented modern European music, providing the baroque foundations for Bach and Handel to build on. Isaac Newton (1642-1727) had not yet entered grammar school, and Christopher Wren (1632-1723) was still dreaming of spires at Oxford. Since Europe, in retrospect, was on the threshold of a rapidly changing era of civilization, it is tempting to think of the Thirty Years’ War as the ﬁnal spasm of barbarism on European soil. Violent conﬂict was ready for export overseas as the continent settled into a less sullied era of civic enlightenment at home. Despite its barbarities, the war itself produced leaders of exceptional abilities. The principal ﬁgures have been delineated in sharply contrasting colors. Protestant posterity has admired the famously accomplished, multilingual, Gustavus Adolphus (1594-1632), the soldier-king of Sweden. For Hosack (1882), the Swedish hero was “a model of a Christian soldier… simple and unostentatious in his habits and sincere in his religion, although wholly devoid of bigotry.” His pen portrait by Ward (1934) is no less favorable. The Swede’s less romanticized Bohemian adversary, Count Wallenstein (1583-1634), warrior in the cause of German unity, has been portrayed by Hosack as “a stern, cold, unfathomable man, not without a strain of genuine magnanimity in his saturnine nature, but arrogant, overbearing, and insatiably ambitious”. We are not surprised to learn from the same source that Wallenstein was less noted than the Swedish soldier for his concern for the innocent victims of war. The Thirty Year’s War was also the period of European history when the most powerful monarchs were ﬁrst manipulated by exceptionally shrewd advisers on matters of foreign policy. One thinks of Count Axel Gustafson Oxenstjerna (1583-1654), Chancellor of Sweden and mentor to the famous soldier-king. Even more so, we recognize the exploitative genius of Cardinal Armand Jean du Plessis de Richelieu (1585-1642), architect of the French hegemon (Ward, Prothero and Leathes, 1934). By the close of Richelieu’s remarkable career, France had mastered the continent. In establishing a formative inﬂuence on the amoral but ingenious science of statecraft, the French had also provided the language and style of elegant diplomacy – the velvet glove for an iron ﬁst.

Constructing the Imperial World-system (1618-1815)

The long-delayed outcome of the French-dominated diplomacy of settlement in 1648 was the Peace of Westphalia. It has been hailed by later generations, but also rejected, as “a paradigm shift in the development of the present state system” (Beaulac, 2004): the “ﬁrst of several attempts to establish something resembling world unity on the basis of states exercising untrammeled sovereignty over certain territories and subordinated to no earthly authority” (Gross, 1948). In the theory of international relations, the famous Peace of 1648 has acquired “cornerstone” status, providing support for the new international structure of power. It was negotiated among all but one of the major power-holders of Europe – all but England (now Great Britain) – and also among most of the continent’s lesser nation-states, with the notable exception of Poland. Designed into the settlement was the core concept of state sovereignty. The negotiators at Westphalia agreed with one another that the “states” they represented shared alike the inalienable prerogative of supreme legal authority over their national territory. Whatever the actual disparities among them, in law they were equal as the holders of sovereignty. Thereafter, up to the mid-20th century, orthodox political thought involved acceptance of the idea that the only external limitation on the authority of a sovereign entity resided in the will of the state. The validity of the law of nations would depend on the granting of their consent or, at the least, their apparent acquiescence. Even established customary international law would have to be supposed to rest on consensual foundations. Can this widely held view of the Westphalian heritage withstand the challenge of modern revisionists? Confronting popular beliefs is, after all, half the fun of being a historian. Was Westphalia really a “watershed” in the history of international law? Have the historians magniﬁed its foundational signiﬁcance? Can we separate out the factual and mythical components? The war was mainly the result of religious anarchy. Since the kindling of the Reformation in 1517, millions had become inﬂamed by unappeasible hatreds fueled by divisions within the Christian West. In pinning down his 95 theses, Martin Luther had opened the door to a series of radical challenges to the authority of the Catholic Church. Within a generation, the Protestant cause had been taken up by rulers and majorities in most of Northern Europe, especially in Switzerland, Sweden, the Netherlands, Scotland, and England. The Huguenot movement in France was a troublesome confrontation with the government in Paris. In Germany especially, the Reformation divided many families as well as principalities. To the extent that treaties can contribute to the resolution of such bitter discord, Westphalia might be credited for providing a degree of “closure”. It is also agreed that the Thirty Years’ War was further evidence of mounting resistance to the overreaching temporal authority claimed by the Holy Roman Empire. Admittedly, the Emperor’s authority over secular matters had been challenged almost continuously since the mid-13th century. The vision of a single international lawgiver and arbitrator at the center of the Western world had faded. Indeed, France had remained its feudal vassalage to the Emperor by the end of the 10th century, and Spain had never really conceded its subordination to imperial authority. Yet among

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the German-speaking peoples of Europe, the focus of temporal authority had remained uncertain. In the early 17th century, the Empire consisted of 355 entities, all claiming something akin to sovereignty, but of very unequal power and territoriality. Of these, 155 were secular “states” governed by hereditary, mostly Protestant, rulers: Electors, dukes, landgraves, marquises, counts and burgraves. In addition, there were 123 ecclesiastic German “states” ruled by life-appointed, mostly Catholic, church oﬃcials: archbishops, bishops, abbots and other dignitaries. The remainder of the Empire was composed of imperial cities administered as republics by elected oﬃcers (Hosack, 1882). All were expected to acknowledge their subservience to an external authority at a higher level of legitimacy, a temporal order possessing dynastic entitlements and responsibilities of ancient origin. The Emperor retained the status of a German overlord with Roman pretensions. By then, however, political concessions had been made to many German principalities, inﬂuenced by the example of the national monarchies that had attained independence in the 16th century. On religious issues, several German princes had espoused the Protestant cause in opposition to the Catholic Empire. A declaration of religious independence had been drawn up in the Peace of Augsburg (1555), creating a patchwork of religious zones, whose coloration was determined by the ruler’s personal choice of spiritual commitment (cuius regio eius religio). This apparent truce had eroded during the reign of Emperor Rudolf II between 1575 and 1612. To preserve their religious independence, many principalities, both Catholic and Protestant, felt the need to build state-like armies. Once empowered, some recognized in the Augsburg declaration an opportunity to enhance their political inﬂuence, and in some cases to expand their frontiers. Coalitions emerged. In 1608 the Evangelical Union rallied around the Protestant cause, and in the following year their adversaries established the Catholic League. The former soon drew in Great Britain and the United Provinces of the Netherlands, as Catholic Spain prepared to repossess their former Dutch territories. More directly, France confronted Spain and the Empire. The spark that ignited the Thirty Years’ War was a dispute over succession to the vacant German duchy of Cleves. The last incumbent had died, witless as well as childless, in 1609. Diplomacy had generated the proposed solution of equal division between the claimants, John Sigismund of Brandenburg and Wolfgang Welhelm of Neuburg. But this peaceful, if inglorious, outcome was forestalled by the doctrinal logic of the Emperor’s lawyers: all stipulations in favor of female heirs were held to be null and void, destroying the credentials of subsequent male claiments. The imperial stalemate drew in other power-holders. Heightened tensions across the continent led to the murder of Henry IV of France, and to the defenestration of two imperial ministers by the associates of Count Thurn. The survival of the stadtholders in Prague was variously explained: ascribed to divine intervention by Catholics, and to the dung-heap they landed on below by non-believers. No humor can be wrung out of the thirty years of bloodlust that followed these failures of law and diplomacy. The ﬁghting produced no lasting or decisive military outcome. Some writers, like the British historian Cicely V. Wedgwood (1938), have suggested that the war was

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totally pointless, changing nothing: an “unmitigated catastrophe” in Germany, and equally disastrous throughout the continent. This, however, is now generally regarded as an extreme view, and is rejected by most continental European historians following Pages (1939), such as Polisenski (1973) and Rudolf (1977). Yet even among the European countries that participated in the famous war, there remain major diﬀerences in the way that the 1618-1648 period is presented and in the assessment of its historic signiﬁcance (Asch, 1997). At least it is agreed that the losses incurred exhausted the continent. The need for peace was felt on all sides, long before the start of negotiations in 1644, sensed but not achieved before the death of Hugo Grotius in 1645. The diplomacy of settlement required the services of mediators. Finally, it resulted in two separate bi-partite agreements: the Treaty of Osnabruck and the Treaty of Munster. The former was concluded between Queen Christina of Sweden and her Protestant allies, on one side, and the Catholic Habsburg Emperor and the German princes, on the other. The Munster settlement was negotiated between the Catholic King of France and his allies, on the one hand, and the Emperor and the German princes, on the other. The multilateral nature of such diplomacy today would be reﬂected in a single multilateral treaty instrument, but 17th century European jurists still adhered to the Roman contractualist heritage, which had dominated medieval treaty-making (Meron, 1995). Moreover, the dualistic form of the Peace of Westphalia conveyed the geopolitical reality of the situation. Catholic France and Protestant Sweden shared the same need to have the German princes as parties to the Peace in order to weaken further the central temporal authority of the Emperor, but they had quite diﬀerent perceptions of their dynastic role in Europe and carried diﬀerent hopes within the Christian West. Those who argue the foundational status of Westphalia have much to draw upon (Hershey, 1912). Although guarantees of peace were not a new feature of European treaty-making, this was the ﬁrst time they had been written into a system-wide settlement that could be described as an “international constitution”. The call for the peaceful settlement of disputes and for collective sanctions against aggressors has resonated down the ages since 1648, forming a model for Articles 10, 12, and 16 of the Covenant of the League of Nations, and later for counterpart provisions of the UN Charter (Gross, 1948). Yet by the late 1960’s, the Westphalian and Charter conceptions were only two of several ways of conﬁguring the international legal order (Falk, 1969). To the extent that constitutionalism is a continuous thread in the fabric of the European heritage in the history of international law, it was stitched into place at Westphalia. The “foundationalists” include also many historians who ascribe to the 1648 settlement the origin of the “balance of power” system of European diplomacy, generously interpreted as intended to protect the weak from the strong, or at least to curb the excessive powers of the strongest. Revisionists, however, have pointed out that the Peace of Westphalia was not such a clearly cut settlement. On religious issues, the outcome was a compromise between the traditional prerogative of the monarch to choose the country’s religion (cuius regio eius religio) and the subject’s freedom to practice the faith of his or her own

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choice. The ruler’s traditionally absolute authority over the religious sphere was limited by Article 5 (11) of the Osnabruck Treaty, which provided that in changing religion the ruler could not compel his or her subjects to do the same. In Article 5 (28) of the same instrument, freedom of worship and religious education was guaranteed to Protestants living in Catholic areas, and vice versa. Moreover, the Treaty of Osnabruck granted equality between Catholics and Protestants in most of the organs of the Empire (Beaulac, 2004). On the temporal side, the settlement of the territorial issues, which were of primary concern to Sweden and France, was also based on compromise. In the Treaty of Osnabruck, the Baltic areas granted to Sweden remained subject to the ﬁefdom of the Empire and within the jurisdiction of the imperial Diet. In the case of French territorial claims, Article 76 of the Treaty of Munster granted France full title in the designated areas: “all manner of Jurisdiction and Sovereignty, without any contradiction from the Emperor, the Empire, House of Austria, or any other”. Under Article 74 of the same instrument, Austria’s rights in the Alsace region were also conveyed to France, but subject to the special quasi-autonomous status they had previously enjoyed under imperial protection (Ward, 1934). Accordingly, the provisions dealing with both religious issues and territorial claims were the creature of compromise diplomacy. The Holy Roman Empire continued to exist on the basis of ancient privileges, even into the 20th century, though its overriding central authority (imperium) had substantially eroded as a result of Westphalia. Although the parties formally recognized the United Provinces of the Netherlands and the independence of the Swiss Confederation, most historians take the position that these two states were already “established” as sovereign entities (Walker, 1899; Pages, 1949; Polisenki, 1978). In functionalist terms, many of the most important provisions of Westphalia were “declaratory” rather than “constitutive” (Johnston, 1997). Part of the foundationalist argument for Westphalia is that it constituted formal agreement for the ﬁrst time that all members of the Empire – more than 300 altogether – were entitled to enter into alliances with other countries, provided such instruments were not directed against the Empire or contrary to the provisions of the Peace. In this way, it can be argued, these principalities were recognized to have the treaty-making capacity that only an independent sovereign state of Bodinesque stature could possess (Nussbaum, 1954). However, critics have noted that the old term Landeshoheit (territorial supremacy) was preserved, and it might be objected that the conditions attached are incompatible with true sovereignty. Today, most legal writers are inclined to resist the notion that the Peace of Westphalia was creative of the world’s ﬁrst system of fully independent, sovereign states. Despite its political importance – not least as a triumph of French diplomacy designed to keep Germany divided – its foundational legal credentials are generally regarded as overblown. Reﬂections. Much, of course, depends on how one chooses to deal with “sovereignty” in the theory of international law. The idea that state sovereignty is, or ought to be, the capstone of the international legal system is increasingly unpopular today, at a time in world history when state prerogative is widely felt to be insuﬃcient-

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ly grounded in public morality. Deconstructionists, riding high, enjoy the sport of puncturing overblown balloons. Like most “pudding” words, the sovereignty concept can be molded into any shape that pleases the caterer, or titillates the consumer, of sugary confections. As we have seen, Jean Bodin in the 16th century used the term in its internal sense to describe the possession of absolute and unshared authority over the realm. He and his contemporaries did not explore, or even sense, its external implications. As Kennedy (1986) has noted, the “primitive” jurists of the 16th century did not distinguish “municipal” law from international law. They envisaged “a single law which binds sovereigns and subjects alike”. The “traditional” language of Westphalia is too imprecise to justify a claim to foundational status within a discipline noted for its concern with technical precision. That much, at least, might be conceded (Beaulac, 2004). Battling for the High Ground The Westphalian Aftermath. The inauguration of the ﬁrst “congress” of nations at Westphalia did bring into operation a treaty-based regional framework of norms for at least occasional, mostly bilateral, interactions among the parties. The collective eﬀect of the settlement is more questionable. The imperial Diet retained its advisory function, providing a forum for the discussion of issues of concern to the German principalities, although the Westphalian ethos of national independence encouraged many of them to assume more and more of the prerogatives of “true” sovereignty. By the mid-18th century the Diet had become dysfunctional. The symbolism of Westphalia had gained in potency. The Emperor’s actual authority over all these territories subject to his ﬁef continued to decline during that period, though arguably this owed less to Westphalia than to the growth of the much older Landeshoheit principle, which purportedly authorized gains in national territorial at the expense of the Emperor’s imperium (Gagliardo, 1980). As we have seen in the previous chapter, Jean Bodin introduced the concept of sovereignty in the 16th century with a view to validating the monarch’s supreme authority over the realm. He is generally regarded as an absolutist, justifying sovereignty as a concept necessary for the maintenance of internal order. It may be argued, however, that Bodin’s purpose was not to give approval to “unlimited, despotic-like absolutism”, but rather to place the monarch ﬁrmly at the top of what was conceived as a “pyramid of authority” (King, 1974). It was others later in the 16th century, such as Pierre Gregoire and Francois Grimaudet, who distorted Bodin’s concept of sovereignty by combining the original notion of “legislative sovereignty” with the idea of the “divine right of kings”, which denied the possibility of any higher temporal authority (Church, 1941). As Beaulac (2004) notes, this combination of ideas “was, to a large extent, responsible for the period of extreme, despotic-like, absolutism in the 17th century, epitomized with Richelieu’s raison d’etat and Louis XIV’s personal identity with the state. It is diﬃcult to deny that this movement toward the arbitrary, absolutist, concept of internal sovereignty had an eﬀect on the concept of external sovereignty evolving in the law of nations through the 17th and 18th centuries. Interpretations placed on

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the latter concept by jurists of that period are themselves subject to the interpretations of modern scholars. One does not have to be an out-and-out deconstructionist to accept that the interpreter’s conscious and unconscious states of mind are aﬀected by a host of values, assumptions and attitudes. Foremost among these conditioning factors in the 17th and 18th centuries was the depth and consistency of the interpreter’s commitment to the competing ideologies of natural law and positive law. Since the early 20th century, interpretations of “state sovereignty” have also been colored by the interpreter’s evaluation of the status of the sovereignty “principle” as an infrastructural or core concept of the entire system of international law. Questions. Given the central place usually assigned to the concept of state sovereignty among the “basic norms” of modern international law, it seems unfortunate if it evolved out of nothing more admirable than the pride or vanity of personal rulers in the age of European monarchy. Can we ﬁnd “higher ground”? To what degree was the problem of rule digniﬁed by debate at the philosophical level? Was the outcome determined by the force of ideas or by the “realities” of power and wealth? How should we respond to that outcome today, in a time of greater commitment to the “duty to cooperate” among states and of growing reservations about the role of the state in the larger context of human welfare? Back to Natural Law. The European movement to a ﬁrm concept of state sovereignty revived the old debate on natural law (Le Fur, 1927) It might seem that every possible position on the “law of nature” had already been taken over the course of the previous two thousand years. Some of the commentary had been critical. But nothing emanating from the doctrine of European classical antiquity or the Middle Ages was quite as dismissive as the philosophy of denial embraced by Thomas Hobbes (1588-1679). The English philosopher is remembered most of all for the bleakness of his assessment of the human condition. For Hobbes, we are designed by nature to engage in constant struggle for gain, safety or reputation. More hopeful, more moral, conceptions are put aside with chilling logic. Since life is “solitary, poor, nasty, brutish and short”, it must be expected realistically that wars will be necessary. The “law” of nature resides not in the command of a superior, or in a higher moral authority, but in the human instinct to survive. This instinct compels us to accept the discipline of society. The tendency to comply with the sovereign’s will, he suggested, is attributable to a “social contract”, whereby all citizens have agreed from the earliest times to live within the constraints of community for the beneﬁts of all. In accepting the state, the individual has granted away his or her “natural rights” and “ought” not to hinder the sovereign that now possesses them. It is the citizen’s duty to avoid the “injustice and injury” that would arise from breach of the covenant (Hobbes, 1946). Much has been written about the Hobbesian conception of civic order. One sample: “Hobbes avoids all the errors that arise from assuming that men are virtuous: he cannot always reconcile his ideas with the fact that they are stupid” (Pennington, 1989). By his own premises, Hobbes is required to deny the possibility of a law of nature extending outside the limits of community prescribed consensually by the terms

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of the social contract. Sovereigns, he argued, cannot be envisaged as agreeing to live peacefully with one another within a community based on a similar need for human survival. For Hobbes, the law of nations, miscalled ius gentium, consists only of treaties or “contracts”, which sovereign entities choose to enter into in order to limit the dangers threatening the state. “Covenants without the sword are but words”. Compliance with one’s promise in treaty form is contingent upon the reliability of the other party, though national honor, he admits, may also be involved, and also calculated regard for the consequences of breach (Nussbaum, 1954). The minimalist position on the law of nations staked out so vigorously by Hobbes had points in common with the views later expounded by Benedict (Baruch) Spinoza (1632-1677). Although more of a moralist than Hobbes, the German philosopher agreed that states exist naturally in a belligerent condition – a conclusion easily reached by a thoughtful observer whose childhood coincided with the last 16 years of the Thirty Years’ War. Lifelong resistance to paciﬁst idealism came naturally to Spinoza and his contemporaries, as it has to later generations whose formative years were conditioned by the sacriﬁces of the First and Second World Wars. For Spinoza too, the welfare of the citizenry comes ﬁrst. Treaty obligation might sometimes have to yield to considerations of vital national interest (raison d’etat), despite the claims of honor and natural justice. The idealists of the school of natural law were not so easily outargued. They had a long heritage of noble and sophisticated reasoning to fall back upon, both secular and Christian. Almost all of them, somewhat curiously, were Protestants, including the three most prominent naturalists of the post-Westphalian era. Samuel Pufendorf (1632-1694) was the son of a Lutheran pastor, born and brought up near Chemnitz in Saxony. His German birth did not prevent him, as a young man, from securing a diplomatic position with the Swedish ambassador in Copenhagen. Nor did it, or his Protestant credentials, save him from prison, where he and others of the Swedish ambassadorial staﬀ were cast when hostilities broke out between the sending and receiving states. Good use was made of Pufendorf ’s detention, as by Marco Polo, Grotius, Milton, Hitler and so many other incarcerated writers. His Elements of Universal Jurisprudence, published in 1660, commanded so much admiration that the young scholar after his release was appointed by the Elector of the Palatinate to the new chair at Heidelberg in the Law of Nature and of Nations. This chair was the ﬁrst of its kind to be created. By the early 18th century, almost every other German university had a chair of natural law. Since then Heidelberg has been entitled to claim special status, along with The Hague, within the international law community, and German scholars have competed with their Dutch counterparts for preeminence, especially among the historians of the discipline. Under the terms of appointment, the incumbent at Heidelberg was required to expound and develop the ideas of Hugo Grotius as a champion of natural law. In due course a massive treatise of neo-Grotian caliber was produced. In it Pufendorf covered a wide range of private as well as public law, reﬂecting an order of natural law rooted in reasonableness: “a kind of Corpus juris naturalis, a counterpart, as it were, of Justinian’s Corpus juris civilis” (Nussbaum, 1954). Like Hobbes, Pufendorf placed

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natural law on a higher plane than “positive” law, but he diﬀered from the English political philosopher in asserting that peace, not war, was the natural state of human society. His conception of natural law was clearly more secular than that of earlier Christian writers, despite the author’s Protestant devoutness. Pufendorf was not concerned with the individual’s claim on heaven, only with the search for reasonableness, which he placed at the center of natural law. Consistently with that conception, he envisaged the state as a moral person, whose will is the sum of the individual wills of its citizens. Curiously, as an early victim of diplomatic sacrilege, Pufendorf did not consider the normal practice of ambassadorial immunity to be founded in the law of nature. It was seen rather as a courtesy contingent upon the ruler’s satisfaction that the envoy’s mandate was restricted to the preservation of peace. At that time, diplomacy was not always distinguishable from espionage. Moreover, Pufendorf was extraordinarily vague about the sources of obligation in the law of nations. Neither custom nor treaty obligation was conceded to have binding force independently of the law of nature. Treaties were treated merely like private contracts under the civil law. Later, in the 18th century, the French Encyclopedists looked upon Pufendorf as an early exemplar of the Enlightenment. They respected his elevation of reason as the test of worthiness, and his courageous departure from intellectual orthodoxy in legal as well as religious matters. Not least, they admired his insistence on the principle of state equality, though this stand did not require any rare degree of courage: it was unlikely to give oﬀence to the Elector of the Palatinate or to his later patron, the Great Elector of Brandenburg. Even more clearly, Christian Wolﬀ (1676-1756) was a child of the Enlightenment, displaying an encyclopedic range of interests: philosophy, theology, mathematics, physics, botany, and medicine, as well as law and history. By the time of his appointment as Professor of the Law of Nature and of Nations at the University of Halle, enthusiasm for natural law had spread rapidly throughout the continent, especially in the Protestant states. In Catholic France there was no oﬃcial reception, but the naturalist philosophy did catch on in academic circles and among the fashionable readers of Paris. Indeed the belief in one universal law, grounded in reason, became a dominant motif in the works of the most celebrated French writers of the 18th century – Voltaire, Montesquieu, and Rousseau – and contributed powerfully to the rationale for the French Revolution. For Wolﬀ, as for Pufendorf, states should be regarded as “moral persons”, bound like individuals by the law of nature. Unlike Pufendorf, however, Wolﬀ insisted on the coexistence of two distinct branches of the law of nature: the domain of principles applicable to individuals and that applicable only to states. Like Grotius, he asserted the existence of an international “positive” law derived from nature (or reason): the “voluntary law of nations”. To defend this naturalist position, he had to resort to artiﬁcialities, such as the deliberate ﬁction of a world-state, the existence of a civil society among nations, and arbitrary distinctions such as that between natural and contractual obligations (Ruddy, 1975). Wolﬀ ’s reputation in his lifetime became so enormous that Frederick the Great, son of the iron-clad monarch of Prussia who had ordered Wolﬀ out of his country on

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pain of death, later courted his return. Despite his exclusively academic career, Wolﬀ had become a superstar. Not the least of his eﬀects was his inﬂuence on a lesser jurist, who would however achieve a more important place in the history of international law. Like Pufendorf, Emmerich de Vattel (1714-1767) was the son of a Protestant minister, albeit an aristocratic man of the cloth. Also like Pufendorf, he started his career in diplomacy, in Dresden, serving the Elector of Saxony who at that time was also King of Poland. But, unlike Grotius and Pufendorf, Vattel remained a professional diplomat throughout his life. His famous work, The Law of Nations (Le Droit des Gens), published in 1758, became immediately inﬂuential precisely because it was written speciﬁcally for the diplomatic community. It is safe to say that Vattel’s Droit des Gens became the best known work on the law of nations in the 18th century. Its inﬂuence was particularly evident in the diplomatic arena, but it also achieved authoritative status in the courts of the common law countries. As Nussbaum (1954) reports, Vattel’s authority as a institutional writer extended to the United States, where he was cited in court cases between 1789 and 1820 no less than 92 times on matters pertaining to the law of nations. Over the same stretch of time, Grotius was cited only 16 times, and Pufendorf only nine times. By the mid-20th century, the original text of Le Droit des Gens had been translated into English 23 times and into Spanish six times, but only once into German and Italian. Most of these translations were published within the ﬁrst one hundred years after the initial publication. So it fell to Vattel to articulate the mainstream 18th century view of the law of nations (Ruddy, 1972). He began with “the Necessary Law of Nations: the Law of Nature applied to Nations … As men are subject to the laws of nature … the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the laws of nature and is bound to respect them in all her proceedings. And since right arises from obligation … the nation possesses also the same rights which nature has conferred upon men in order to enable them to perform their duties” (Vattel, 1861). Since men are naturally equal, he continued, so too are nations, “considered as so many free persons living together in a state of nature … Power or weakness does not in this respect produce any diﬀerence. A dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom”. All nations, therefore, have a right to resort to force against another that “openly violates the laws of the society which God has established between them, or … directly attacks the welfare and safety of that society”. Indeed, being free and independent of one another, nations are at liberty to form their own judgment of what is proper or improper to do: “no other nation can compel [a state] to act in such or such particular manner”, since such compulsion would be “an infringement on the liberty of nations”. Thereby Vattel transposed to the international plane Bodin’s concept of internal sovereignty, linking legal authority with the “highest uniﬁed power” possessed by the sovereign and applicable throughout the realm (Beaulac, 2004). Despite the obligatory initial reference to unspeciﬁed obligations under the law of nature, chief emphasis is placed by Vattel on the prerogatives associated with liberty. The somewhat mys-

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terious core of the “necessary” law of nation, becomes conspicuously soft, as Vattel proceeds to develop the “positive law of nations” derived from the will of the state. In operational terms, Vattel’s law of nations consists of three branches: (i) voluntary law based on presumed consent; (ii) conventional law based on explicit consent; and (iii) customary law based on tacit consent. The “voluntary” law of nations, based on natural law like the “necessary” part, is seen to be crucial to the politically realistic tasks of adaptation to the particular needs and priorities of inter-state relations. Down the ages Vattel has been a target of criticism by those European jurists who have felt responsible for guarding the European heritage of natural law. More than any other writer of his time, Vattel presented international law as a system of norms to be developed pragmatically by states, compelled by a sense of mutual or common interest, moved by the need for order as well as by the obligations of reason and justice. Vattel, in short, though not himself a philosopher, was the builder of the bridge that had to be crossed by jurists wishing to reach the problem–solvers of the diplomatic community on the other side. The French Enlightenment. As Vattel was depicting the law of nations in a more practical light, as a conceptual-normative framework for statecraft and inter-state diplomacy, huge changes in European political and social thought were in the making. The most potent of the new thinking on the continent of Europe was distilled by the French philosophes. The death of Louis XIV in 1715 marked the beginning of the end of the ancien regime. It can also be taken as the starting point of the Age of the French Enlightenment. The most prominent of the enlighteners, in the eye of posterity, were Voltaire (1694-1778), Jean-Jacques Rousseau (1712-1778), and Charles Louis Montesquieu (1689-1755), but a high place of honor might also be reserved for several of their contemporaries such as the educationist Denis Diderot (1713-1784) and the scientist/ mathematician D’Alembert (1714-1780). Despite the term they accepted without embarrassment, the philosophes were not philosophers in the professional or technical sense. None of them could be included in any list of the great philosophers of the 18th century, preceded by John Locke (1632-1704) and Gottfried Wilhelm Leibniz (1646-1716) but including especially David Hume (1711-1776) and Immanuel Kant (1724-1804) (Berlin, 1956). Yet the impact of the philosophes on posterity was all the greater because they addressed the general reader of their time, the new “reading public”: the educated middle classes, which were now the drivers of society. Despite the lively17th century tradition of political tracts designed for general circulation, the philosophes were the ﬁrst shapers of international public opinion, the inventors of the “public realm” (Outram, 1995). The French contribution to new thinking in the 18th century was, however, only part of as much larger, more complex phenomenon, the European Enlightenment. It was never a “disciplined intellectual phalanx” (Anderson, 2000). Rather, the Enlightenment in the larger sense, has been conceived as a process of debate and challenge that exhibited a new mix of values and attitudes. For some interpreters, the Enlightenment was a “value-system rooted in rationality” (Cassirer, 1963). Others, which ac-

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knowledging the role of reason, gave equal weight to other common themes such as the veneration of nature, science, skepticism, optimism, and cosmopolitanism. From this combination of themes we can discern in outline the cumulative impact of the Enlightenment on the future development of international law. The central role of reason in Enlightenment thought reﬂects a general agreement to reject dogma of all kinds, whether religious, moral, or legal in kind. The philosophes shared a particularly critical suspicion of traditional beliefs and established ideas. If the universe might be godless after all, all the more reason for humans to bear responsibility for their actions, for everything they touched (Anchor, 1967). The way forward, to a higher level of civilization, could not be taken without an open, inquiring. skeptical frame of mind. The enlightened modern mind was inquisitive about the past and about other cultures. Since faith in reason supplanted faith in god, one looked optimistically to science to discover new and more reliable truths. “Human nature” had to be trusted and developed. The purpose of knowledge was the improvement of “human welfare”. To overcome the deﬁciencies in society, governments were under obligation to enact benevolent legislation designed to serve the interests of all citizens. From progressive national legislation, models would become available for international reforms that could be implemented through good faith diplomacy and treaty-making. More eloquently than anyone before them, the philosophes held out the prospect of a worldwide ethic of human rights with imperatives that transcended sectoral or national interest, and a sense of responsibility to nature. This pattern of thought had become established among French intellectuals by the 1740’s, and was at its peak in the 1760‘s and early 1770’s. Of the philosophes none was more incisive than Voltaire, that “incomparably brilliant and acerbic gadﬂy” (Topazio, 1979). He was, arguably, the ﬁrst of the totally engaged activists of European intellectual history, fueled like so many modern activists by scorn, directed especially at the corruption and intolerance of church and state. Through satire he was relentless in the causes he inspired. His readers knew Pangloss to be hilariously misguided: they were certainly not living in “the best of all possible worlds”. It was “a time of bungling politicians, of nobles feeding oﬀ the labors of masses of peasants, of immorality and corruption among Europe’s ruling elites” (Garraty andGay, 1972). It was, as we know looking back, an age of mounting fury about to explode in revolution. It was Voltaire’s contemporary, Jean-Jacques Rousseau, who came much closer to channeling these emotions into a coherent vision of an enlightened society, attached but not subordinate to intellectual arguments for reason and reform. The product of a motherless childhood in Geneva, he grew up in the school of self-study and hard knocks (Cranston, 1983). His father Isaac, a Swiss watchmaker, seems to have been an aﬀectionate but irritable man, who allowed himself to be drawn into a violent quarrel that obliged him to leave his native canton. At the age of ten Rousseau was entrusted to the less-than-gentle household of his mother’s bother. Jean-Jacques was not an easy child, and his life thereafter was a succession of diverse occupations before the publication in 1762 of his Social Contract (Du Contrat social) and Emile, his major works. “He had been a novice in a religious house and a footman waiting at the tables of the great; he had been the secretary of an ambassador in Venice; the kept protégé

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of a provincial bluestocking and the lover of titled Parisian ladies; a successful composer feted at the opera, the famed winner of a literary prize, the friend of the encyclopedists, and a common man living in a dingy quarter by copying music. He was a botanist, a musician, a mathematician, and a master of languages; and by and large he prided himself on none of these roles and experiences” (Garraty and Gay, 1072). Few great writers have divided the opinion of posterity so deeply as Rousseau. By some he has been derided as “the advocate of an irresponsible individualism”, “the philosopher of ruinous disorder”, the wager of “the supreme assault on law and the state”. By others, Rousseau has been found obnoxious for “reintroducing the old divine right of kings in a new dress’, denounced as a “romantic collectivist” or a “totalitarian”. As Peter Gay (Cassirer, 1963) suggests, the confusion among commentators is explained quite simply. “Rousseau moved from individualism in his early life to collectivism in the later years”. Similarly, we can see a conﬂict in his writings between the abstract and the concrete. His abstractionism, inﬂuenced by Locke and Plato, pushed him into “extreme and unqualiﬁed statements”, provoking David Hume’s lament: “Really his writings are so full of Extravagance that I cannot believe their Eloquence alone will be able to support them”. His respect for the concrete, on the other hand, derived from Montesquieu, led him to “the conviction that life is never clear-cut and that principles are modiﬁed by circumstances”. Through the evolution of his thought, Rousseau did exhibit consistency in holding a negative view of society. Man, he believed, was born neither good nor bad. Sinfulness was acquired from exposure to an unsuitable social environment, which made individuals unduly competitive in order to survive. The community had become too large and complex. Individuals could not become truly free unless emotionally secure, and this was possible only in a society of equals. Most social ills and individual miseries were the product of an unfair distribution of wealth. Rousseau was a preMarxist. Rousseau’s torment was this: how can the civilized individual recover the beneﬁts of the “state of nature” without forfeiting the gains associated with civil society? His answer was – only gradually, through enlightened state education. He was no revolutionary, but, perhaps more than anyone, he created the pre-conditions of the French Revolution by bringing the established order into opprobrium. Despite the intensity of his social criticism, Rousseau had no interest in joining the activist cause with Voltaire or anyone else. Voltaire, on the other hand, despised Rousseau for his self-absorption and lack of commitment to political action. Today’s activists, as the carriers of participatory democracy, would no doubt side with Voltaire. But within the scholarly community Voltaire has been criticized even more than Rousseau for being a “popularizer and generalizer of the ideas of others”, although that is precisely the role that he explicitly took upon himself. He was a publicist, like Samuel Johnson. Voltaire in turn had contempt for the kind of people who found him wanting: the speculative philosophers and systematizers. Much of the posthumous abuse of Voltaire, as of Johnson, came from “the Romantics, who preferred the sentimentalism of Rousseau or Burns to the hard-headedness of Voltaire and Johnson” (Greene, 1979). But Rousseau too has been abused by later generations. He has had to pay the price of being a “coiner of happy phrases”, but, as Johnson said of epitaphs, “in

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lapidary inscriptions a man is not upon oath” (Cassirer, 1963). It is Rousseau’s heart that converses with the reader, as he conceded. One can argue whether Voltaire or Rousseau was the “truer” voice of modern secular humanism. Both would have been appalled by the excesses of the French Revolution. Voltaire was more comfortable with the vision of enlightened monarchism, Rousseau with that of republicanism. As the scourge of dogmatists, Voltaire would have questioned the relevance of that kind of political choice for the ultimate beneﬁt of society. During their lifetime, both Voltaire and Rousseau became excitingly notorious for the lifestyle of their choice. In the view of posterity it is Rousseau who is found guilty of hypocrisy. Even more damning deﬁciencies of character might be charged against him, unless excused on the ground of his paranoia, which was severe in his ﬁnal years. Charles Louis de Sacerdotal, was the least controversial of the three most famous philosophes. It was his contributions, more than those of Voltaire and Rousseau, that seem most relevant to the future development of international law. He was raised in a well-to-do family in the growing region of Bordeaux, married into money, and eventually succeeded to the barony of la Brede and Montesquieu. At ﬁrst, Montesquieu seemed to be settled in a legal career, but he surprised his friends, and perhaps himself, with a literary success on his ﬁrst recourse to publication. In Persian Letters (Les Lettres persanes) he entertained his readers with a satirical review of the vagaries of Persian despotic ruler. At its center is a government based on the personal caprice of a single ruler “unbidden to laws or rules, one who owes allegiance only to his own will or desire”; a society bearing “a startling, and surely unﬂattering, resemblance” to the society shared by the author and his readers (Werner, 2002). Yet behind the irony, we see the author’s fascination with the reality of cultural diversity, which would prove a complication to human rights advocates pre-committed to the ideal of ethical uniformity and legal universalism (Courtney, 1988). We also see the origin of Montesquieu’s path-breaking idea of law originating not in reason but rather in the circumstances of society. In Paris Montesquieu became a regular member of the salon of Mme de Lambert, where he was encouraged to develop further unsuspected facets of his personality. Assured of social prestige and ﬁnancial security, he took advantage of the opportunity to travel and cultivate cosmopolitan tastes. While outside France he became familiar with the British parliamentary system and conceived the principal elements of the work that would win him universal fame, The Spirit of the Laws (L’Esprit des lois) (1748). His political friends in London were mostly Tory opponents of Sir Robert Walpole (1676-1745), a “ﬁrm but not fanatical Whig” who dominated Parliament during the reign of George II. The weakness of the British Tory Party at that time enabled Montesquieu to perceive political struggle in constitutional rather than ideological or religious terms. His most original contribution to political and legal theory was his classiﬁcation and analysis of the organs of the modern state: legislative, executive and judicial. His famous theory of the separation of powers, based on his observation of the British system, has become the bedrock of the modern concept of constitutionalism, inspiring

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the French Declaration of the Rights of Man (1789), the constitution of the United States, and numerous other state constitutions written since then around the world. It is hard to imagine how state power today could be conceptualized otherwise than within Montesquieu’s framework of analysis. Because the father of modern constitutional thought was more conservative than either Voltaire or Rousseau and died more than two decades before the French Revolution, Montesquieu was deemed ineligible for commemoration on the ﬁrst coins minted by the new French Republic. But he was surely the most practical of the great men of the French Enlightenment, and arguably had the most universal, cross-cultural, impact on world history. The Scottish Enlightenment. Improbably, it was Scotland, a smaller and less glamorous culture, that rivaled France in the late 18th century as the most important animator of modern civic enlightenment (Daiches, Jones and Jones, 1986). The founder of a remarkably inﬂuential elite of Edinburgh and Glasgow intellectuals was a humane, reform-minded clergyman, Francis Hutcheson (1694-1747). Unlike Voltaire and most of his French contemporaries, Hutcheson and most of his numerous followers were not engaged in mortal combat with Christianity. Only Henry Home (Lord Kames) (1696-1782) was an uncompromising, “common sense”, rejectionist of Christian belief (Lehmann, 1971). Even David Hume (1711-1776), the great skeptic, was willing to concede the potential moral and social value of the Church to the general population. Yet despite his clerical status, Hutcheson devoted his life to modernizing the tradition of civic humanism. He was, above all, a disciple of the great secular humanists of classical antiquity, of Aristotle and Cicero (Miller, 1986). Hutcheson made his reputation as an exceptionally eloquent lecturer at Glasgow University (Hook and Sher, 1995). Hundreds of students were drawn to his classes in moral, political and legal, philosophy, including future notables like Adam Smith (1723-1790). Moreover, his ideas had an extraordinary impact on numerous others beyond the classroom, such as Hume, Adam Ferguson (1723-1816), William Robertson (1721-1793), and other prominent members of Edinburgh’s Select Society, a club consisting of strikingly modern associates. The style of debate in the Society was always strenuous and sometimes boisterous. However, most of the debaters, with the prominent exception of Kames, the infamous cynic and atheist, shared the general conviction that human development was founded on benevolence. For Hutcheson and many others who followed, benevolence was inherent in “human nature”, which could be studied empirically, to “illuminate God’s purpose for man, not to replace it” by the use of the moral faculty implanted in us (Randall, 1978). Drawing especially on the 17th century writings of Samuel Pufendorf and John Locke, Hutcheson insisted on the moral supremacy of the right to be free. All individuals subject to tyranny had a right of resistance, as Pufendorf had claimed, and all societies were based on the notion of popular sovereignty. As Locke had argued, all citizens possessed an inherent freedom of speech and a freedom of religious belief. Indeed, Hutcheson went further and denied the legitimacy of any form of oppression, including the subordination of women. He was also the most insistent opponent of slavery in the second quarter of the 18th century. No one in his time was more pas-

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sionately committed to what we now know to be the modern ethos of human rights. He was perhaps, as Herman (2001) suggests, “Europe’s ﬁrst liberal” and the most persuasive visionary of a “free society”. Hutcheson’s lectures, like Vitoria’s in the 16th century, were published after his death, under the title A System of Moral Philosophy (1755). In that work Hutcheson argues, in opposition to Hobbes and Kames, that benevolence is “the source of many human actions; indeed the only source of those of which, on reﬂection, we are likely to approve”. In short, civilization advances through actions that produce “the greatest happiness for the greatest number”. His optimistic liberalism provided the foundation for the utilitarianism of the 19th century. But the intellectual elite of Edinburgh, the “Athens of the North”, was more diversiﬁed than that of Paris. Benevolence had to compete with other cultural traits. Scottish culture had, and still has, a dark side. In the mid-18th century, the dark side was absent from the gentle Hutcheson, as much as from the genial Hume (“le bon David”) and the absent-minded Smith, but very much present in the proudly outspoken Kames. This powerful judge conceded nothing to the softer sentiments. It has been suggested that Smith and Hume, realistically, saw law as a game, likened to chess (Stein, 1957), but the judge’s view of the judicial process reﬂected a grimmer kind of irony. The story is told of Kames’s cruel jest in pronouncing death on an old chessplaying crony” “That’s checkmate to you, Matthew”. A more honorable Scottish tradition was the demand for empirical proof. To this we might ascribe the Scottish literati’s insight that human society was a subject for rigorous scientiﬁc study, as much as geology, to which James Hutton (1726-1797) was making pioneering contributions, and chemistry and physics, the domains of the highly respected Joseph Black (1728-1799). It was an insight shared with the philosophes of Paris, who had inherited their own tradition of respect for science from Descartes. Within a climate favoring dispassionate analysis, the new discipline of economics could be envisaged and conceptualized, and the parameters of world history studies and comparative cultural anthropology could be set out. But the amalgamation of science, philosophy, law and theology was even more conspicuous in the Scottish universities (May, 1976). Hume in particular insisted that the “scientiﬁc method” of Newton, which had proved so useful in the study of the universe, must now be applied to the study of man. But the importance of reason, he argued, had been greatly exaggerated. Our rational faculties cannot control the passions that drive us through the turbulence of life, and therefore cannot ensure that we will achieve the good life. For Hume, pursuing the relentless logic of his own empirical premises, trusting only his senses, even the certainty of mathematics could only be taken on faith (Herman, 2001). Perhaps because of their traditional grounding in science, the Scottish literati of the late 18th and early 19th centuries made pioneering contributions to the social sciences in general, and not least to juridical science in particular. Kames and John Millar (1735-1801) laid the foundation of comparative and historical jurisprudence, which would inﬂuence Sir William Blackstone (1723-1780) and be developed further by Friedrich Karl von Savigny (1779-1861) and Sir Henry Maine (1822-1888) in the 19th century. The Kamesian division of the past into stages of civilization was ad-

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opted with adjustments by Adam Smith, reinforcing the trend to historical relativism evident in Montesquieu’s writings. Kames had denounced the fashionable trend towards an increasingly indiscriminate dependence on judicial precedents, which was inﬂuenced by current developments in English common law (Lehmann, 1964). Similarly, Millar was disdainful of the Scottish civil law tradition of blind attachment to the authority of Roman jurists (Lehmann, 1960). Both Scottish scholars thought of law as an organism that thrived best in its own soil, raising an issue that American lawyers had to struggle with long after the “transplanting” of the English common law to the colonies of the New World in the 17th century. Stock should be taken of the Scottish regard for “common sense” realism. It might appear that Adam Smith, or else someone very much like him, was bound to appear, determined by the commercial conditions of late 18th-century Scotland. As Heilbroner (1999) has emphasized, the ﬁrst of the great economic thinkers lived in worldly times. Not least in Scotland, it was an age that had ﬁnally dispatched the old Christian dogma of the moral unworthiness of material gain. If the ethos of trade could survive the strictures of Northern Calvinism established in the late 16th century by John Knox, it could live comfortably with religion anywhere. Scottish society at that time was not short of dour, shrewdly manipulative but principled, Dutch-like, men, who saw in the expanding world of empire a God-given bounty. But before Smith, commerce was just a trade, a business uninformed by principles, unworthy of serious scholarly attention. It was the role of this notoriously eccentric philosopher – the prototype of the absent-minded philosopher – to envisage the “rules” of free enterprise and to set them down within a systematic, if cumbersome, framework of analysis. Smith was, not least, a moral philosopher, just as intensely committed to the imperatives of ethical obligation as his mentor Francis Hutcheson. His ﬁrst major work, The Theory of Moral Sentiment (1759), was a best-seller far beyond his native land. In that work, he revealed the realistic side of the Scottish Enlightenment – and of the Scottish culture – reﬂected in the Kamesian thesis that we all live within a personal ethos of self-interest. How, then, can civilization advance toward social or civic enlightenment on the basis of moral judgments, if we are governed by internal pressures to satisfy our selﬁsh wants? This was the topic of the day in the teashops of Western Europe. In our time, this odd, awkward, heavily accented Scot would have been pursued by all the talk shows of television, on both sides of the Atlantic and beyond. But Smith was unsatisﬁed with philosophical debate on a matter that must surely be amenable to scientiﬁc treatment. Speculation was too easy. With serious Presbyterian eﬀort, it should be possible to demonstrate how something as important and universal as economic activity operated eﬀectively across all times and places. Surely there must be universal principles at work. For Adam Smith, it was crucial to look beyond the crude mercantilist notion that wealth consisted of gold and silver: the primitive overestimate of the value of bullion that had attracted hordes of gold-and-silver seekers to the New World. Nor was there relief in the physician Francois Quesnay’s physiocratic insight that wealth “ﬂowed through the nation, from hand to hand, replenishing the body social like the circulation of blood” (Heilbroner, 1999). In The Wealth of Nations, published in 1776, Smith

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went much further, drawing like all great writers upon the thoughts of many others, all scrupulously acknowledged. His was a work of immense erudition, unparalleled since the era of Hugo Grotius in its comprehensive synthesis of the past and its illumination of the factors that will continue to govern or guide us in the future. Perhaps no work before the age of Karl Marx would make such a powerful, worldwide impression on our understanding of society. It was the ﬁrst masterpiece of the social sciences. The gist of The Wealth of Nations was that “the invisible hand” of the market directs self-interest in a way which is “most agreeable to the interest of the whole society”. Society is considered as an organism that has changed within its own life history in accordance with inexorable laws that cause prosperity or poverty. In an environment of similarly motivated, entrepreneurial and industrious, individuals, Smith argued, economic self-interest will result in competition, which produces the goods that society wants, in the quantities and at the prices determined by the interplay between the forces of supply and demand. To a large extent, this explanation of economic history reﬂected the reality of the 18th century. Since then economists have developed a more sophisticated – and more realistic – understanding of the complexity of economic phenomena. We no longer trust entirely to the eﬃcacy of self-adjustment mechanisms within the private sector. Most of the time we argue furiously with one another over the issues when and how the state should intervene on behalf of society. Despite his famous conception of the market economy, Smith was aware of the 18th century case for state intervention. Although governments were seen to have no economic functions as such, he conceded that certain minimal state functions were indispensable in the provision of such unproductive services as national defense, security, justice, and other public works that were unlikely to be provided by the market. The rationale was that “the proﬁt could never repay the expense to any individual or small number of individuals” (Smith, 1976). Public services, he conceded, were needed in sectors where the market had failed to provide, and general taxation was necessary to sustain them, but he supported the view that certain public facilities such as roads and bridges could be paid for by the users. In a similar vein, he protested against monopolies and non-state institutions such as gilds that had operated for centuries in restraint of trade. They were “impolitic” because they impeded the working of the market as an allocative mechanism, and “unjust” because they violated the individual’s most sacred property, his own labor. Yet, despite his reformist views, Smith recognized realistically the practical diﬃculties of removing all existing constraints on trade inherent in society and human nature. The American Enlightenment. In any list of the most distinguished names of the Enlightenment two Americans are invariably included: Benjamin Franklin (17061790) and Thomas Jeﬀerson (1743-1826). Both were intellectuals of remarkable versatility, who came to know many of the leading ﬁgures of the French and Scottish Enlightenment. But unlike any of their gifted European associates, both Franklin and Jeﬀerson would have a major personal role in the political, diplomatic and institutional implementation of the great civic ideas of the 18th century. Together, they

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created the modern ideal that enlightened leaders should possess a ﬁrst-class, wellstocked and progressive, mind. This was an age when the vitality of Christianity was diminishing. A new vision for humanity was felt to be necessary in the Western world. Reason called for faith in natural science, and in natural, not dogmatic, religion. Moderation in matters of moral judgment was admired. The centralized state was established as an apparently permanent feature of civilized society. Industry and trade were the business of the thriving cities of Europe. Benjamin Franklin was born in Boston in 1706, just 14 years after the Salem witch trials. Boston then was a town of barely 10,000 but already an important center of maritime trade. His father Josiah was an English immigrant, who made a modest income out of candle-making, soap-boiling and dyeing. When his English wife died, he remarried and kept adding to the overpopulated household until it reached a total of 17 children between the two unions. Benjamin was the youngest of ten sons, and the youngest child of all but two. In such a frugal start to life, knowledge of Latin seemed unlikely to contribute much to an overcrowded table. Curiously, young Ben failed in arithmetic at grammar school, but he excelled in rapid reading and comprehension, and he loved to write. As he grew older, he modeled his prose on that of The Spectator. As early as 12 he was apprenticed to a printer, but ﬁve years later, as a victim of bullying by an older brother, he ran away from home, ﬁrst to New York, and then to Philadelphia (Wildman, 1924). According to his own Autobiography, Franklin strolled into town carrying “three great Puﬀy Rolls” that he had bought from a boy in the street with the last of his pennies. He had underestimated what could be purchased with Boston coins in the City of Brotherly Love (Fleming, 1972). There was, as yet, no common American currency, nor any other evidence of an organized union of the colonies. With the patronage of Sir William Keith, the Governor of Pennsylvania, and without his father’s approval, Franklin took the annual ship’s crossing from Philadelphia to London in 1724, on the strength of Keith’s promise to ﬁnance the setting up there of a printing business. The promise proved as hollow as Keith’s reputation in London, but somehow the 18-year old survived as a journeyman printer, as an apprentice writer, and as a shop clerk, until his return to Philadelphia in the summer of 1726. In the following years Franklin became successfully established with his own printing business. Although he never lost his interest in the common ground between religion and morality, increasingly he found himself attracted to the mystery of electricity, and other dangerous challenges in the natural sciences. In 1753 these experiments resulted in his invention of the lightning rod. By this time Franklin, now famous, had also become prominently involved in the politics of Pennsylvania, and been appointed Deputy Postmaster General of America. Aware of the French and Indian threats to the thirteen English colonies, and of the untrustworthiness of political treaties, Franklin became more committed than ever to the vision of inter-colonial unity. Acknowledging the military necessity of some degree of cooperation, if not union, the British government in London convened an

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inaugural inter-colonial conference, and Franklin was chosen as one of the Pennsylvania delegation. This was the occasion for Franklin’s ﬁrst important political document, the Albany Plan of Union, which envisaged an American parliament or council consisting of elected representatives of each of the colonies. Although endorsed at Albany, the Plan was found unacceptable by the governors, who were – all but two – appointees of the Crown. Not least it was a subversive notion in Pennsylvania, where the Proprietors of the colony (the Penns in London) were at odds with the increasingly assertive Quaker Assembly of elected representatives in Philadelphia. The Assembly agreed that Franklin should be sent to London to negotiate a solution to the impasse. In 1757 Franklin was back in London, this time accompanied by his 26-year old son, William, who had been dabbling in legal studies but with no speciﬁc focus. The negotiations in London did not go well. Franklin escaped to the “Athens of the North” where he reveled in the company of David Hume, Lord Kames and other notable literati. When he returned to London, the English were celebrating Wolfe’s victory over Montcalm on the Plains of Abraham. The end of French rule in North America was assured by the subsequent surrender of Montreal. In Franklin’s mind, this was the time to grasp the future: the surely irresistible union of British North America within the framework of an Anglo-American Empire, the ﬁrst empire founded on the principles of the Enlightenment. To his dismay, many of his British friends did not share this vision; some were even prepared to consider handing Canada back to France in return for more certain beneﬁts elsewhere, such as the sugar-rich island of Guadeloupe in the Caribbean. In 1760 it was time to go home. A compromise of sorts had been negotiated with the Penns. A new monarch was on the throne, an energetic “patriot king”. William Pitt had resigned as Secretary of State. And William Franklin had ﬁnally completed his studies. By this stage of his life, Franklin had become the most famous of all Americans, even more so than the painter Benjamin West, who was receiving acclaim at the court in London (Dos Passos, 1959). The genial sage of Philadelphia was seen by many as the embodiment of modern enlightenment, exhibiting reason, tolerance, humanity, and humor. He believed in natural law, natural religion, and the natural goodness of man. He was an optimist, trusting in the perfectibility of individuals and the human community. Progress would be assisted, if not assured, through the workings of enlightened self-interest. He knew that science and invention were solutions to most of the problems aﬄicting society, including poverty and disease, and he knew that liberty was the key to happiness. He had risen to wealth and fame through virtuosity in business, science, philosophy, and politics. He was already an astonishing “syndicate of men”. Yet his career as a Founding Father and diplomat was just beginning. Although Franklin attracted most of the attention, like a lightning rod, many other Americans in the 1760’s were also conductors of the new energies generated by the philosophes and literati of Europe. Most American thinkers of the 1770’s belonged to an upper-class elite reﬂecting the conservative values associated with constitutionalism, shaped chieﬂy by moderate Scottish Calvinists. They were admirers of Montesquieu. On the brink of the Revolution, the Scottish civic writers best known

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in America were Lord Kames, who had been inﬂuential on the thinking of early Jefferson, and Adam Ferguson. David Hume and William Robertson were among the favorite historians. Young Americans wishing to study medicine, like Benjamin Rush, went to Edinburgh. Hutcheson and Smith were the moral philosophers of choice, and Thomas Reid and Dugald Stewart were foremost in the philosophy curricula of the colonial universities (May, 1976). Soon John Witherspoon, a Scottish Calvinist transplanted to the President’s oﬃce at Princeton University, would become the architect of America’s famously open-minded system of university education. Along with Locke, Newton, Montesquieu and Rousseau, the Scottish literati were the chief molders of the American mind at the time of the Founding Fathers, and arguably would remain so throughout the following century (Herman, 2001). The extent of French inﬂuence on late 18th century America, though enormous, is more diﬃcult to measure. “Inﬂuence” is a notoriously elusive concept. As Spurlin (1984) reminds us, the presence of French books in a private library may suggest interest, but not necessarily inﬂuence. Very few American colonists up to the late 1770’s could read French easily like Jeﬀerson, whose library included the works of Voltaire, Montesquieu and Rousseau and other philosophes as well as those of Newton, Locke, Hume, Smith, Hutcheson and other Scottish literati. As for the law of nations, it was Vattel’s Droit des gens that was an obligatory presence on the shelves of highly educated Americans. But the American Revolution also came out of a tradition of law and liberty that was essentially English. Unlike most other societies of Europe, England had retained its identity as a free people under the rule of law despite the civil war and revolutionary upheavals of the 17th century. It was Sir Edward Coke (1552-1634) and William Blackstone (1723-1780) who were the articulators of the common law tradition as the foundation of individual liberties. The 18th century concept of liberty included the right not to be taxed or subjected to laws without the people’s consent, and the right not to be deprived of life, liberty and property without due process of law (Greene, 2000). It was the Englishness of colonial America that gave rise to its transformation. Nothing was more stubbornly English than the American colonists’ resistance to the notion of being subject to a foreign tax. Some historians argue that the idea of becoming distinctively American only took hold in the colonies in 1763, when the Treaty of Paris ended the French and Indian Wars – the Seven Years’ War in North America (Spurlin, 1984). To become thoroughly American the colonists had ﬁrst to take a thoroughly English stand against British domination, founded on the common law. For generations the American colonial assemblies had tried to assimilate themselves to the role of the House of Common in London, which had been engaged for centuries in the struggle to limit the authority of the Crown. Replicating that role at the colonial level brought the elected burgesses of America increasingly into conﬂict with the royally appointed governors. But increasingly also the overseas threat was now seen to emanate from Parliament as much as from the Crown. Indeed for many Americans of the late 18th century, rejection of the British Parliament’s will was less wrenching than an act of conspicuous disloyalty to the Crown.

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The eﬀort to raise revenues in the 1760’s created fundamental issues about the extent of Parliamentary jurisdiction over the colonies. Huge sums had been expended by the British government on the Seven Years’ War, not least on the maintenance of a large standing army in the American colonies. In London it seemed to many – but not to all – that the colonists had beneﬁted enormously from the defeat of the French, and that it was reasonable to require the beneﬁciaries to contribute to the cost. It was the logic of imperialism. There was also cause for British resentment. Long before the Seven Years’ War, American traders had converted smuggling into a lucrative form of art. Business was business, and continued to be as American ships found advantage in running the British blockade of the proﬁtable French trade in the West Indies and other arenas. Yankee trading with the beleaguered French in North America added considerably to the costs of the British war eﬀort, and contributed to the escalation of the national debt in London (Wells, 1967). At ﬁrst it did not seem necessary to resort to new revenue bills. The old Trade and Navigation Acts, ﬁrst enacted under Oliver Cromwell in 1651 as a strike against the Dutch, seemed suﬃcient to impose duties on goods brought to America. However, it was soon found that eﬀective enforcement of the old imperial legislation, intended to protect the British domestic economy, would require a prohibitively costly bureaucracy of informers and inspectors. In place of the old, unenforceable laws, Parliament passed a series of statutes designed to extract revenues from the American colonies. These legislative eﬀorts began with the Sugar Act but included also the Revenue Act, the Currency Act, and the Stamp act, all enacted in 1764. Most economic historians agree that the provisions of the notorious Stamp Act were not excessive in monetary terms. They were intended to recover only a modest proportion of the war debt. But they were all-pervasive. Violence erupted over the method engaged, through a system of writs of assistance that gave an unlimited discretionary right of search to customs oﬃcers, without any legal requirement for judicial process as in the case of regular search warrants. Heightening tensions resulted in serious acts of violence on both sides, including the killing of four stone-throwing protestors by British soldiers in the “Boston Massacre” of 1770. At the subsequent trials of Captain Preston and his men, the accused were acquitted, prosecuted by Thomas Quincy and Thomas Paine and defended by Josiah Quincy and John Adams (Zobel, 1970). The events of the next three decades of American history are well known to all. They demonstrated the limitations of enacted law in the face of revolution. But they also proved, again, the strength of the common law as the foundation of liberty and the relevance of the law of nature to the right of rebellion against oppressors. Not least, they established the pivotal role that lawyers can play in the management of a revolution and in the design of a new state founded on civic enlightenment. Not all the Founding Fathers were lawyers. Benjamin Franklin had no interest in legal technicalities and little regard for legal reasoning, except in defense of moral principles secured in reason and common sense. George Mason had impressive drafting skills, but was constantly deferring to lawyers. Benjamin Rush was a doctor. George Washington was a gentleman soldier and farmer. Yet an extraordinary number of the most important builders of the new nation were lawyers, who had studied the works

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of Coke, Kames and Montesquieu and through Vattel knew about the law of nature and the law of nations. We think of John Adams, James Wilson, Thomas Paine, James Madison, Alexander Hamilton, John Jay, John Quincy Adams, Patrick Henry, John Marshall and George Wythe, but above all we think of Thomas Jeﬀerson. Scion of a moderately wealthy, slave-holding planter in Virginia – and of the inﬂuential Randolph family on his mother’s side – Jeﬀerson was born and raised in more favored circumstances than Franklin. At the College of William and Mary in Williamsburg, he was immediately captive to the liberating mind of Dr. William Small, a product of the Scottish Enlightenment and the only one of the seven-man faculty who was not an Anglican clergyman. Jeﬀerson was assigned almost exclusively to Small, who seems to have taught almost everything on oﬀer, capable of reconciling liberati as diverse as Hutcheson and Kames. Jeﬀerson’s famous mental stamina was put to the test thereafter by ﬁve years of immersion in the tedious legal works of Coke, whose texts on the common law had to suﬃce until Blackstone’s readable Commentaries on the Laws of England became available in America two years after Jeﬀerson’s call to the bar. Yet fortune smiled again on the willing student in the person of his tutor, George Wythe, who would later become the founder of American law education at the College of William and Mary and the teacher of John Marshall, the future Chief Justice. Perhaps just as formative of Jeﬀerson’s mind were the regular dinner conversations with Small, Wythe, and Governor Fauquier, to which the tall, digniﬁed young lawyer was frequently invited. To the wealthy Jeﬀerson, unlike the impoverished John Adams in Boston, “cases” came quickly once he settled in the practice of law: 68 in his ﬁrst year (1767), 115 in the second, and 198 in his third. Although never as skilled in oration as the spellbinding Patrick Henry, Jeﬀerson could easily have maintained a successful career in litigation. It appears that his arguments in court often went beyond the precedential safety zone of Coke, venturing into the more elusive principles of the law of nature. It may not have startled his colleagues when he opted for a political career and won election to the Virginia House of Burgesses in 1769. At that session, Jeﬀerson’s baptism involved participation in an unanimous resolution by the colony’s assembly declaring that they alone, the Virginia people’s representatives, had the right to levy taxes on the colony, aﬃrming the right of petition, and protesting against the new governor’s removal of accused to England for trial. Around the time of the resulting dissolution of the House, Jeﬀerson received a shipment of books from England that included Locke’s Two Treatises on Government, Adam Ferguson’s Essay on the History of Civil Society, and the complete works of Montesquieu. He was re-elected to the House in 1769, one year before the “Boston Massacre”. As tensions amounted in Massachusetts, Jeﬀerson joined a group of young Virginian burgesses, who were disillusioned with the insuﬃciently radical reactions of their elders. This group, including Patrick Henry and Richard Henry Lee, started meeting at the Raleigh Tavern, but soon gained a voice on the key committees of the House. Jeﬀerson himself was appointed to an ad hoc group mandated to communicate with the twelve other colonies to discuss the goal of political union and how to get there.

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After the Boston Tea Party and the closing of Boston harbor in 1774, Jeﬀerson was centrally involved in drafting resolutions demanding support for Massachusetts. In the circumstances of 1774, Jeﬀerson was deemed an extremist, arguing that Parliament in London “had no right to exercise authority over us”. Cunningham (1987) suggests that most American lawyers at that time believed that Parliament had a right to levy duties for the purpose of regulating trade but not for the raising of revenues. There was no clear precedent. In a bold statement, in his Summary View of the Rights of British Colonies, Jeﬀerson insisted that the king was “no more than the chief oﬃcer of the people, appointed by laws, and circumscribed with deﬁnite powers, … and subsequently subject to their superintendance”. In repudiating Parliament and concentrating on the colonial relationship with the Crown, Jeﬀerson may have been raising eyebrows within the American legal profession, but by now he had placed himself among the most forceful advocates for American rights. His readings on the brink of the American Revolution included Montesquieu’s Spirit of the Laws and Algernon Sidney’s Discourses Concerning Government, “a rich treasure of republican principles”. Through his research he claimed to have found examples in ancient history of colonies that were permitted to govern themselves independently, especially within the framework of the Roman Empire. As a delegate at the second Continental Congress in Philadelphia in 1775, the young Virginian lawyer was called upon to play a leading role in the drafting of two major statements adopted by Congress that justiﬁed the taking up of arms under the command of General George Washington. By then Jeﬀerson considered separation to be unavoidable, and this was conﬁrmed by George III’s decision, backed by a large Parliamentary majority, to wage war on the American colonies. In response, Congress appointed a committee of ﬁve to draft a declaration of independence: John Adams, Benjamin Franklin, Thomas Jeﬀerson, Robert R. Livingston, and Roger Sherman. It was the youngest of them who was chosen to begin the drafting process. Of the relatively minor amendments made to Jeﬀerson’s famous draft, perhaps the most signiﬁcant was the deletion of the part condemning George III for allowing the slave trade to continue: “a cruel war against human nature itself ”. The motion to delete was led by South Carolina and Georgia, but not opposed by the Northerners on a point of principle. The American Declaration of Independence, the most inﬂuential document of modern political history, was adopted on July 4th, 1776, and signed four weeks later. In response to predictable criticisms from his political enemies, Jeﬀerson made no claim to originality of thought. Some of the language in the Declaration was obviously based on that of George Mason’s Virginia Declaration of Rights. Clearly also, John Locke’s ideas were frontal. It was intended, the author said, as “an expression of the American mind”. But equally, he might have added, he had captured the high ground staked out by the enlighteners of Europe (Meyer, 1976). Reﬂections. The European Enlightenment was the watershed of modern political thought, feeding eventually into the most arid, and seemingly least responsive, of political cultures around the world. It drew upon streams of creative thought that converged miraculously within the span of three generations. It hardly matters how

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we now award points to the contributions of the French, Scottish and American geniuses of the 18th century. In any event, other cultures participated signiﬁcantly in the same convergence, not least the German, Italian, and Russian encyclopedists. Arguably, it originated in the Renaissance of much earlier times, and certainly it owed an enormous debt to the English contributions of the post-Elizabethan era. The Enlightenment created what we now conceive to be the modern world, anticipating the weaknesses as well as the strengths of contemporary liberal thought (Gay, 1970). It would be hard to exaggerate its seminal inﬂuence on our present expectations of civic enlightenment within the expanding framework of human rights. Because of the future impact of the United States on the course of world history, there has been much controversy among American scholars about the actual eﬀect of the European Enlightenment on American culture. The impact of the French Enlightenment in particular has been under constant scrutiny. It is agreed at least to be less measurable than the weight of the British heritage. Because the myth of exceptionalism is so strongly present in their society, many Americans feel it is important not to overestimate foreign inﬂuences on the indigenous growth of the American system of civic values. In 1929 Yale Law School was the citadel of American legal realism – nothing if not an indigenous growth. Signiﬁcantly, it invited a distinguished Yale colleague from 18th century studies to re-assess the contribution of the European Enlightenment to the shaping of a nation that was then reluctant to submit to European inﬂuences under the League of Nations. The three lectures delivered by Carl Becker were published as a single volume, and quickly became an American classic (Becker, 1932). Professor Becker took that opportunity to conduct an acidulous dissection of the prostrate literary body of the French Enlightenment. Not least, he chose to savage Voltaire himself with Voltairean wit. His provocative thesis maintained that the philosophes were more closely akin to the medieval than to the modern mind, exhibiting “a naïve faith in the authority of nature and reason”. They had “demolished the Heavenly City of St. Augustine only to rebuild it with more up-to-date materials”. Their aversion to “enthusiasm” was itself an enthusiasm. It did not carry them to “the high ground of indiﬀerence”: “the virtue of keeping cool and not straying beyond the call of common sense”. Despite themselves, they were committed to the ideal of Christian service. The “secret door to knowledge”, Becker suggests, is opened by appropriate incantations. In the 13th century, the sages invoked God, sin, grace, heaven, and salvation. In the 18th century, they preferred to conjure up nature, natural law, ﬁrst cause, reason, sentiment, humanity, and perfectibility. Similarly, the 19th century was devoted to matter, fact, matter-of-fact, evolution, and progress; and the 20th to relativity, process, adjustment, function and complexity. In each age, “these magic words have their entrances and exits”. No one construct, Becker seemed to imply, should be exalted above all others for all time. Even reason has its limitations as a pathway to eternal enlightenment. In the 1960’s a group of American and British scholars came together to shield the philosophes from further assaults. Admittedly, these 18th century admirers of science were not always consistent or thorough-going empiricists, but they knew the value

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of skepticism. Their “faith in reason”, lampooned by Becker, meant simply that they considered the scientiﬁc method developed by Newton to be superior to all other methods of gaining knowledge; it was superior to revelation, authority, tradition, because it was more reliable” (Gay, 1968). In the history of international law, at least, the Enlightenment of the 18th century has a special resonance today because of the emergence of human rights law and cognate areas as the ethical core of the world law system. Nothing in the 19th century would come close to matching the American Declaration of Independence and the French Declaration of the Rights of Man as expressions of the quest for civic enlightenment, and the Constitution of the United States would become the prototype for most modern experiments in constitutionalism. In the climate of those times, these two models of contemporary international law were articulated with a clarity that has not been surpassed. In the theory of international law, the Age of Enlightenment is of particular importance because of the challenge posed by the “unity of knowledge” concept: the idea that true knowledge is possible only through the integration of disciplines. Most international lawyers of the European formalist tradition seek “rigor” in the manner of all disciplines. Others see international law as a ﬁeld of integrated inquiries devoted to policy analysis and prescription. The jurisprudential school of “policy science” associated with Myres McDougal and Harold Lasswell, which focuses on the goal of “human dignity, is based on the Enlightenment-inspired concept of “consilience”, combining arts, science, and the humanities. It is they, the policy-based international lawyers, who can be said to represent the heritage of the Enlightenment, in a movement more clearly evident in North America today than in its spiritual home. Carving up the World The Lust for Colonies. The philosophes and literati were intellectuals. It was their shared conviction that the future of human welfare depended on improvements of the mind. In storming the heights, they planned to overwhelm the forces of ignorance and superstition. Further down the slope, the armies of tyranny and greed controlled the terrain. They were well equipped for battle. The 17th and 18th centuries were predominantly an age of imperial acquisition, and increasingly the new conquerors prospered through their maritime advantage. Great fortunes could be extracted from naval supremacy and colonial settlement overseas. Colonization has been a feature of world history for well over 3,000 years. Conquest in primitive antiquity, East and West – in ancient India, Persia and Egypt – frequently involved the creation of colonial rule in the territory of the conquered. Although the form and degree of control exercised by the “mother” country varied, it was normally ﬁrm enough to deprive the colonized people of the privilege of selfgovernment. Later, expansion of Arab, Chinese and Persian commercial interests into neighboring territories usually had the same result of colonization. Overseas colonization depended on the attainment of long-range navigational skills. This kind of colonization, the forerunner to “imperialism” in the modern sense,

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was probably begun around 1,000 B.C., when the Phoenician merchant-cities of Tyre, Sidon and Byblos were in their ascendancy. It might even have had its origin in the earlier Myceanean period. At ﬁrst the Phoenicians’ obsession with trade expansion did not require settlement overseas, but gradually the use of permanent trading stations, and then communities, became a common practice. At the height of their golden period, there were two dozen or more of these Phoenician colonies around the perimeter of the Mediterranean (Roberts, 1990). Thereafter the rich and powerful lusted after colonies. In classical antiquity, most peoples around the Mediterranean, within range of the maritime powers, came under colonial rule of one kind or another, as more powerful strangers arrived in ships. As we have seen, the colonization of remote islands became the normal pattern of Viking exploration in the 9th and 10th centuries A.D. Despite their colonial practices closer to home, non-Western explorers and traders did not consider it necessary to establish permanent colonial rule in overseas areas where they developed commercial contacts. Cheng Ho seems not to have been commissioned to plant Chinese authority overseas despite his obvious capacity to do so. The scale of Western colonial ambition was entirely transformed in the Age of Exploration, when personal and dynastic enrichment became the principal motivation for maritime world discovery. By 1618, as they were still engaged in internecine conﬂict at home, the European powers shared a common ambition to achieve colonial territories overseas (Bruijn and Gaastra, 1993). By then there were ﬁve principal world-empires in the making: the French, British, Spanish, Portuguese and Dutch systems of imperial rule. By 1815, two centuries later, world empire was an apparently irreversible fact of life. Its contours changed with the fortunes of war, but its moral justiﬁcation was found in the convenience of enlightened self-interest. Today we live in an age that rejects the ethic of colonialism. The elimination of involuntary colonies is accepted as one of the successes of the United Nations system. The decolonization process was completed quite rapidly, virtually accomplished by the mid-1970’s. Nothing today is more highly valued, in the context of inter-state relations, than to live as a free citizen in a free and independent state. State independence is at the core of the statist conception of an enlightened world society, and is a basic principle of modern international law. Questions. How, then, should we account for the longevity of the colonial period of world history? Which world-empires prospered, and which faltered, in the 17th and 18th centuries? To what extent, if at all, did the Enlightenment facilitate the eventual overthrow of colonialism? On the basis of historical experience, were some colonial systems worse than others? If so, why? Colonialism in Spanish America. It was the lure of gold and silver that led to the Iberian colonization of South and Central America. Outside Brazil, it was largely the work of Spanish discovery and conquest. According to the mercantalists of the 16th century, the possession of bullion alone created new wealth. Colonies were esteemed in Spain mainly as the source of precious metals, guaranteeing prosperity and stability for the monarchy. Protected by a national monopoly in the New World, Spanish

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manufacturers and farmers had secured access to cotton, dyes and hides, and to exotics such as sugar, tobacco and coﬀee. Eventually, the maintenance of monopoly over their colonies’ trade relations ensured the collapse of the Spaniards’ small and vulnerable economy. The end of their trade empire in the Americas was delayed by the ingenuity of the merchant houses of Seville and Cadiz in evading the monopoly system through artful arrangements as intermediaries between the colonies and more liberally endowed merchants in foreign countries. By the end of the 17th century, foreign countries were supplying ﬁve-sixths of the manufactures consumed in Spain by attracting nine-tenths of that American trade which the Spanish Crown had tried so carefully to monopolize for its own subjects (Haring, 1947). Royal Hapsburg eﬀorts to thwart the intermediaries had been complicated during the period of Spanish occupation of Portugal (1578-1640), because the union of the Spanish and Portuguese crowns enabled the Brazilian trade developed by the Portuguese to weaken the Spanish monopoly in Chile, Peru, and Argentina. After the successful Portuguese revolt in 1640, the impact of the Brazilian traﬃc on the Spanish colonies diminished, but by then the Spanish authorities were unable to suppress the English, French, and Dutch expeditions to their colonies. More seriously, they were unable to prevent the emergence of a widespread system of illegal trade between these colonies and the islands of the Caribbean. In the absence of internationally respected legal restrictions, contraband traﬃc became the norm in the region. By 1700 the once-proud Spanish Empire was greatly enfeebled. On his deathbed, Charles II named as his successor Philip Duke of Anjou, grandson of Louis XIV of France. Like his famous predecessor, Charles V, the young king spoke no Spanish, and, unlike Charles, had no knowledge of Spain, but his succession as Philip V was well received in Spain as well as France. It was soon revealed that the kingdom was bankrupt and virtually defenseless – a wretched inheritance. But the alliance of Spain with France still seemed threatening to others. In 1702 a coalition of the Empire, Great Britain, and the United Provinces of the Netherlands – and later Portugal – declared war on both imperial powers with the common purpose of replacing the Bourbon Philip with a Hapsburg prince, the emperor’s younger son Archduke Charles. The resulting War of the Spanish Succession lasted for 12 years, arguably the ﬁrst “world war”, triggered by European territorial ambitions like the others that followed. With thousands of foreign soldiers – mostly Portuguese – on their soil, the Spanish had little opportunity to attend to the welfare of their American colonies. Most of the commanders of the defending forces were French. At the battle of Almansa (1707) the invading force was defeated, but the entire peninsula was not recovered until the recapture of Barcelona in 1714. By the Peace of Utrecht, which consisted of several instruments negotiated in 1713 and the following year, the American Indies were guaranteed to Spain, which licensed to Britain the American slave trade and the right to send one ship each year to trade legally with the colonies (Kamen, 2003). The last phase of the Spanish colonization in the Americas began more hopefully at the end of the War of Spanish Succession. At that point Spain began to recover some of its earlier strength in the New World. The new Bourbon rulers introduced signiﬁcant innovations in trade and administration. Inspired by Enlightenment ideas,

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the new rulers made serious attempts to balance the Spanish budget and to encourage trade both with the major commercial powers of Europe and with their colonies overseas. By the mid-18th century, many of the old Hapsburg restrictions had been removed (Haring, 1947). Meanwhile, however, in the Spanish colonies themselves a semi-feudal system had been so long in place that it seemed to paralyze society, diminishing the liberating eﬀects of the Enlightenment in the political and social realms. Further north, in the British colonies, a new age had dawned, and neo-European ideas were being applied to the building of a free and independent state. In Spanish America the advent of bourgeois liberalism was retarded along with the ethos of individualism and private enterprise. The passive acceptance of authority was ﬁrmly prescribed as the only appropriate civic behavior, reinforced by the entrenched authorities of the Catholic Church, who looked with dismay at the stronghold achieved by the Protestants in the North. Despite the quasi-feudal constraints inherent in Spanish colonial America, the process of decolonization was beginning in the ﬁnal years of the 18th century. Latin American independence had its earliest hero-ﬁgure in a romantic, handsome Venezuelan. Francisco de Miranda (1752-1816) was born into a prominent Creole family in Caracas, where he began a life-long, somewhat reckless but eventful, career in revolution. Determined to assist in the overthrow of colonial authority in Spanish America, Miranda was one of many foreign soldiers of fortune drawn to the cause of the American Revolution. Soon he had become acquainted with John Adams and Thomas Jeﬀerson, and later with George Washington and other prominent Americans (Davis, 1968). After hostilities, Miranda decided to seek ﬁnancial support for his own revolutionary cause in Europe. His interest in music won him audiences with composers such as Franz Joseph Haydn (1732-1809), who was about to accept the tempestuous young Beethoven as his pupil in Vienna. But Miranda’s greater passion for revolution and independence brought him, more signiﬁcantly, to the door of the two most illustrious of Europe’s “enlightened despots” and patrons of reform: Frederick the Great of Prussia (1712-1786) and Catherine the Great of Russia (1729-1796) (Braun, 1929). Catherine was amenable to taking in a handsome young revolutionary with a talent for ﬂattering reformists. When they met in Kiev in 1787, she invited Miranda to join her service, but he declined when it became obvious that the monarch was disinclined to invest 20,000 rubles in his scheme to liberate Latin America from Spanish oppression. But she ordered Russian embassies in Europe to assist his travels and protect him from Spanish plots. As her biographer notes, her patronage of the young revolutionary “set tongues wagging” in Kiev (Alexander, 1989). Miranda’s fervor, and a growing reputation for treachery, brought him into an unending succession of dangerous situations. During the French Revolution he was twice imprisoned despite his apparent credentials. Back safely in his native country, his inﬂuence among other critics of Spanish rule increased, and contributed eventually to the Venezuelan Declaration of Independence in 1811. Miranda also helped to shape the new Venezuelan constitution. Although not a supporter of the federal structure it created for the infant state, he advocated the

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emancipation of all slaves. On suﬀrage he was not ahead of his time, wishing to restrict the vote to those who could read and write, owned property, and had never been employed in domestic service. Like Montesquieu, he was an admirer of the British constitution. Although a true revolutionary who had fought earlier against the British on American soil, he dreamed of a continent of free and independent states governed on the British model under the protection of the British Crown (Davis, 1968). A more illustrious, and certainly greater, ﬁgure in the independence movement of Latin America was Simon Bolivar (1783-1830). Like Miranda before him, the famous soldier-statesman was born of a wealthy Creole family in Caracas. As a child he was tutored by a committed admirer of Rousseau, but, later in Paris, he became extremely well read in the other philosophes, and modeled his life on Voltaire. It was there also that he met the great German naturalist, geologist and oceanographer Alexander Humboldt (1769-1859), whose liberal idealism had a considerable inﬂuence on the young man’s determination to devote his life to the cause of independence in Latin America. Like many idealists of that time, he wavered between revulsion at Napoleon’s betrayal of the Revolution and admiration for the personal and national glory that one determined man could achieve through courage and vision. The independence movement in Latin America was set in motion by Napoleon’s invasion of the Iberian peninsula, which forced the Bourbon family to abdicate. Keeping the powerful Creole families loyal was the key to maintaining Spanish rule in the Americas, but young men such as Bolivar and Miranda were now inspired with entirely diﬀerent ideas for the future of their country. They were now Americans with enlightened ambitions. The replacement of the Bourbons with Napoleon’s brother, Joseph Bonaparte, on the Spanish throne proved to be the fatal blow to the cause of Spanish monarchy in the New World, uniting the old Creole families with the recent arrivals born in Spain (the peninsulares). A junta opposed to Joseph forced out the royal governor in Caracas, and sent the 27-year old Bolivar to London to seek the support of the British government. The mission miscarried, but Bolivar returned an admirer, like Miranda, of the British constitutional model, and he persuaded his much older compatriot to return to assume command of the independence movement. However, as Gerhard S. Masur has noted, the two men soon drifted apart: “Miranda called Bolivar a dangerous youth, and Bolivar had misgivings about the aging general”. Possibly at Bolivar’s instigation, Miranda was turned over to the Spaniards and spent the rest of his life in Spanish dungeons. The cause of independence in Venezuela did not have the people’s support, and Bolivar was forced to ﬂee to New Granada (now Colombia), where he assumed command of an expeditionary force strong enough to return him in triumph to Caracas, Napoleon-like, as a reformist dictator. His fortunes in war continued to ﬂuctuate in bloody encounters, which induced him to engage in extreme measures, including the shooting of prisoners. Brilliant military tactics enabled Bolivar to defeat the Spanish in the decisive battle for New Granada, to secure formal independence for Venezuela, as well as Ecuador, Peru and Bolivia, so named in his honor.

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Colonialism in Portuguese India. Nowhere was the clash of imperial interests more evident than in the Orient (Furber, 1976).The Portuguese were the ﬁrst Europeans to establish a colonial presence in Asia. Parts of India were under Portuguese rule as early as 1545, almost immediately after Vasco da Gama’s fabled voyage to Calicut in 1498 (Boxer, 1980). Consolidation of their toehold on the subcontinent was attained by virtue of Portuguese sea-power under the command of Francisco de Almeida (c. 1450-1510). As Professor Cuthbert C. Davies has pointed out, the lack of timber around the Red Sea prevented Portugal’s Arab competitors from re-building their ﬂeet. In order to retain control of the trade in the region, Almeida’s successor, Aﬀonso d’Albuquerque (1453-1515), captured Goa and made it the capital of Portuguese India. While the Portuguese were securing their hold on the Malabar coast, Indian resistance was weakened by hostilities between the Muslim kingdoms of the Deccan and the Hindu empire of Vijayanagar. With the seizure of Malacca in 1511, Almeida was favorably placed to control the spice trade of the Malay peninsula, and to strengthen Portugal’s base in India and then in China, where Jorge Alvarez landed in 1513 (de Souza, 1986). By the end of King Manuel I’s reign in 1521, the Portuguese had created a “state of India” as a viable thalassocracy, a dominion based on naval supremacy. The dominion consisted of a chain of coastal strongholds and unfortiﬁed trading posts, each no more than a few miles inland, within easy reach of a naval landing party. By the 17th century, no less than 26 of these posts extended from Southeast Africa to Macao in China, under the direction of a viceroy based in Goa, the jewel in the Portuguese crown. The colonialism of the Portuguese, in India and Africa alike, has earned particular notoriety for the frequency of their recourse to force. The blackness of the Portuguese record may also be attributable to Hindu resentment at Portugal’s success in converting a large minority of Goans to Christianity, eventually over a third of the indigenous population. Mass conversions of the “lower classes of people” may have earned them Brahmin contempt (Rao, 1963), but they reﬂected the continuing inﬂuence of the Jesuits. “Viceroys come and go, but the Jesuit Fathers are always with us” (Danvers, 1894). The Portuguese overseas dominion could not, of course, endure. In the mid-17th century, there was no hope of defending the long thin line of Portuguese outposts against the Dutch, who had become by then the chief distributors of Asian produce in Europe. The Dutch had become much more eﬃcient in their overseas commercial relations and enjoyed all the advantages that accrued from possession of the world’s largest and wealthiest trading company, the United East India Company. The Dutch had little diﬃculty in removing the Portuguese from their own, newly-won, zone of colonial inﬂuence in the East Indies (Boxer, 1980), but on the Indian sub-continent Goa survived for another three centuries as a surprisingly tenacious outpost of Portuguese trade and culture. It has been surmised that the longevity of Portuguese colonialism was a function of their colonies’ economic value to the motherland. Portugal is one of the smallest of the countries of Western Europe. Lacking most strategic resources, it had to de-

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pend upon the skill and energy of its mariners to prop up a meager home economy. Holding on to its overseas possessions came close to a political obsession. The ﬁrst Europeans to colonize in Asia were also the most determined – along with the Dutch – not to go with grace and dignity. Indeed it was to take an unexpectedly robust use of military force by the Indian government in the 1950’s to remove the Portuguese, dismaying Ghandian paciﬁsts who lauded the virtue of peaceful coexistence. The manner of ouster was deemed to raise questions of international law and engaged the attention of the UN Security Council. Colonialism in the Dutch East Indies. Unlike the Portuguese, the Dutch did not bring a proselytizing zeal to Asia. Instead they brought another no-less-formidable presence: the world’s hardest and most eﬃcient businessmen, sanctioned by the world’s ﬁrst modern, wholly secular, state. Instead of a dynastic monarchy, the United Provinces of the Netherlands was a brand new republic run by tough, war-hardened burghers, who were as resolute as tempered steel in the pursuit of proﬁt. In 1596 the Dutch ﬁrst entered the waters of what would later be known as the Spice Islands or the East Indies, and now known as Indonesia. In 1602 three large and successful trading companies merged to form the United East India Company (Verenigde Oostindische Compagnie). Although intended to limit itself to commercial purposes, the Company from the beginning was entrusted with state-like powers: to build fortresses, conclude treaties with local rulers, administer justice, and, if necessary, wage war. The modern capitalist distinction between public and private enterprise was blurred in the interest of deploying a small nation’s resources to the maximum beneﬁt. The Company was far and away the largest and best organized trading company that the world had seen. At its peak in the late 17th century it had a ﬂeet more than ﬁve times bigger than that of its Portuguese rivals and twice as large as the ﬂeet that served the smaller English East India Company. As suggested by Niall Ferguson (2002), the Dutch entrepreneurs owed much of their virtuosity to “a system of public debt that allowed their government to borrow from its citizens at low interest rates,” a lesson to be learned at a later date by the British government. When the Company ﬁnally dissolved at the end of the 18th century, it had paid on average an annual return of 18 on the original capital subscribed. Company policy also played a part, supporting a system of remuneration for its management based on gross revenues rather than net proﬁts, thereby encouraging them to maximize the volume of business. As Ferguson observes, this was an advance upon the business methods employed by the buccaneering entrepreneurs of the Caribbean! The early Dutch settlers were determined to win the right of monopoly over the proﬁtable spice trade. The severe winters of Northern Europe in the 17th century forced farmers to slaughter their livestock early in the autumn and to become dependent on imported spices as meat preservatives. In the interest of monopoly, some of the worst atrocities of colonial history were committed by the Dutch. We still recoil from the history of systematic slaughter of the Banda people for continuing to trade with the Portuguese and Spanish. Competition was not to be tolerated. In 1639 the

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Dutch incinerated the city of Palembang on Sumatra in order to maintain control of the pepper trade. But long-term stability of tenure was unattainable on the restive islands of the Dutch East Indies. The local pattern of violent uprisings made it imperative for the Dutch to engage in the tricky diplomacy of alliances and the divide-and-rule geopolitics of an elusive political culture. Greed and corruption on all sides ruled the day. To make matters worse, the British and French were beginning to grow spices in their own territories and selling to the European market below the Dutch monopoly price. Worse still, the development of winter forage made European farmers less dependent on imported spices as meat preservatives. So the Dutch, as the leading entrepreneurs of that era, adjusted to the new realities and turned to new products: textiles, coﬀee and tea. The 18th century witnessed a gradual but unremitting decline in the fortunes of the Dutch East India Company. When Napoleon occupied the Netherlands in the 1790’s, the Company was on the edge of bankruptcy. By 1800 the humanitarian inﬂuence of the Enlightenment had reached the Netherlands, and the ideas of Adam Smith had raised doubts about the eﬃcacy of the traditional Dutch policy of trade monopoly. Within the Company, however, the oﬃcers on the ground could not overcome their condescending paternalism. Genuine reform would require a determined reformist at the government level. Such an oﬃcial arrived in Java as the new governor appointed by Napoleon. Hermann Willem Daendels (1762-1818) was a Dutch lawyer, but he had become involved in the anti-Orangist movement in the late 1780’s and then joined the French Revolutionary Army against the British and the Prussians. He arrived with the mandate not only to build defenses against the British in the East Indies but also to introduce much needed administrative reforms in the East India Company. In particular, he took steps to eliminate the corporate culture of graft, and to centralize the Company’s operations, and he established new law courts authorized to administer justice in accordance with local custom (adat) in lieu of the formal system of Dutch law that had been imposed on the Indonesians. Despite his good intentions, Daendels was unable to eliminate the system of graft, which had proved so proﬁtable to the Dutch and local oﬃcials. Faced with hostility on all sides, he was recalled in 1810 (SarDesai, 1994). By now, in any event, the British navy was too powerful to resist. Under the overall control of Lord Minto, the Governor General of India, an unusually capable administrator was appointed as representative of the British East India Company in the Spice Islands. Sir Thomas Stamford Raﬄes (1781-1826) is best known as the founder of the British colony of Singapore, which he established in 1819. This seems appropriate, given the exceptional strategic importance that that island-fortress was to acquire and the impact of its economic development throughout the region in the last quarter of the 20th century. Yet, ironically, the man who was perhaps the most eﬃcient, and certainly the most tireless, administrator in British colonial history, spent most of his remarkable energies on a futile eﬀort to restore the fortunes of the bankrupt and chaotic island of Java, the most highly prized economy of the Dutch East Indies, which a formidable British military force had occupied in 1811.

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The policy of the day in London was to establish a provisional British administration on Java, with Raﬄes as the Lieutenant Governor, until the end of hostilities against France, the common enemy of the British and the Dutch government-in-exile in London. During the next ﬁve years, to the ruination of his health, Raﬄes labored through sweltering 18-hour days in virtually a one-man crusade to reform the Dutch colonial system. That system was adapted to the local tradition of directed local labor, which Raﬄes, a man of the Enlightenment like Daendels, considered morally unacceptable. He tried to replace it with an equitable, centrally administered, land rent system, which allowed the tenant farmers to grow the crops of their choice within the framework of a money economy. This experiment to introduce a modern economy of an enlightened European kind failed entirely, although some of his reforms were adopted by the Dutch, when the island was restored to them, as promised, after the defeat of the French. In that diﬃcult situation – surrounded by suspicious, corrupt and often truculent Dutch settlers – Raﬄes set a new standard of personal excellence. He learned the local languages and customs; traveled extensively overland on horseback to negotiate with the local rulers; compiled a comprehensive collection of indigenous species (which was later lost at sea); maintained a huge volume of correspondence; and earned the respect of most around him, especially the Indonesians. On his return to London in 1816 – after stopping oﬀ to visit Napoleon at St. Helena – Raﬄes was blamed for mismanagement by the censorious but Honorable Court of Directors of the East India Company, to which he was accountable. Posterity has acquitted Raﬄes of the charge of incompetence. He had inherited a mess that could not be set right by any one man, however talented and highly principled: “a country completely disorganized and virtually bankrupt; a mass of depreciated paper money; an almost complete absence of a silver currency or, indeed, any currency other than money; a large army receiving payment in silver; the export trade dead and diﬃcult to revive; an inadequate civil service of dual nationality and, on the British side at least, limited administrative experience; no authority to whom to turn for prompt guidance” (Wurtzburg, 1954). Raﬄes was cleared of the most serious charges, but he never entirely recovered his reputation. His former patron, Lord Minto, had died in 1807, spared the spectacle of his protégé’s humiliation. Historians have had diﬃculty agreeing on the ﬁnal assessment of Raﬄes, a name that still resonates honoriﬁcally throughout much of Southeast Asia. Normally a calm, fair and even-tempered man, in the experience of those who worked most closely with him, Raﬄes later in his career fell out rather violently with Colonel Farquhar, whom he had appointed as Resident of Singapore. Raﬄes wanted all citizens to mix harmoniously, but Farquhar, perhaps the shrewder of the two, chose to design the new city in separate ethnic districts, in the manner of the old town area today. Some historians have chosen to side with Farquhar. Like Captain Cook on his third voyage, Raﬄes fell victim to prolonged and agonizing headaches, which apparently changed his personality and aﬀected his judgment. It is now believed that both Rafﬂes and Cook were victims of a massive brain tumor, which medical science of that era was not equipped to cure or even relieve.

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Those of us intrigued by the “what ifs” of history might pause to consider how different Southeast Asia might be if the British government had listened to Raﬄes and refused to honor the deal struck with the Dutch government-in-exile. How much might have changed if Indonesia’s main islands had remained under British rule? Would the country have merged eventually with British Malaya and Singapore within the common law tradition and under the British constitutional system? Colonialism in British India. Portugal was the ﬁrst European colonial power to become established in India (Boxer, 1982). British imperialism came late to the subcontinent, more than 130 years after the beginning of Portugal’s “state of India”. Previously England’s experience with overseas exploitation was based on nothing more honorable than piratical plunder, sanctioned by the sovereign of the day in the tradition set by Queen Elizabeth in the late 16th century. As Niall Ferguson (2002) suggests, Captain Henry Morgan (c. 1635-1688) of Caribbean notoriety was the prototype of the 17th century English entrepreneur overseas. In the late 17th century, India had been in a condition of severe social decline since the death of Akbar (1542-1605), the greatest of the Mogul emperors. His system of colonial administration had drawn upon the best features of the Muslim regime that had extended to the northern parts of the subcontinent over the previous 400 years. His name is still revered by Hindus, for his reign was marked by respect for Hindu religion and culture. Unfortunately his successors were less tolerant of religious diversity. The decline of the Mogul Empire might be blamed especially on Aurangzel (Mobi-ud-Din Mohammed) (Alamgir I) (1658-1707). Under his reign (1658-1707) the Mogul Empire expanded to its greatest extent, encompassing the territories from the Coromandel coast in the east westward to Chittagong and the Hindu Kush mountains but excluding the lands of the Marathas, who remained unsubdued. Unlike the great Akbar, Aurangzel was a militant orthodox Sunni Muslim, who undertook to reverse his famous predecessor’s policy of conciliating his Hindu subjects. Their fairs were prohibited and their religious festivals restricted. The deﬁant Sikh guru Teg Bahadur was beheaded for refusing to convert to Islam. A discriminatory poll tax on non-Muslims, abolished by Akbar, was reimposed. Moreover, the unlamented death of Aurangzel created the usual dilemma of dynastic succession, which was never dealt with under the Moguls. There was no accepted norm or procedure. In the power vacuum created, the provincial governors (nahabs or nawabs) acquired virtual independence from the inept central government, especially in the northeastern region of Bengal. Since 1615, when the Mogul emperor received England’s ﬁrst ambassador, Sir Thomas Roe, the English East India Company had received special trading privileges. These led eventually to the establishment of quasi-territorial English colonial regimes on the west coast around Bombay and on the Coromandel coast around Madras. In 1651 the Company was permitted to build a factory in Bengal, and forty years later the Company laid the foundations of Calcutta (Hooker, 1970). Even with Mogul imperial accreditation, the Company had to contend with quasiautonomous nawabs, ﬁerce competition with foreign trading enterprises, especially the Dutch and French, and confrontations with an English rival company. The last of

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these provocations was resolved by a corporate merger in 1702, but it was not until 1756 that the occasion presented itself – for an arguably legitimate, retaliatory strike against the powerful anti-British nawab Siraj-ud-Daula of Bengal. The casus belli was the capture of the British settlement at Calcutta, where only 21 or 23 of the prisoners taken survived incarceration in the notorious “Black Hole” military prison. The British victory at Plassey was crucial to the future expansion of British colonial rule throughout India, the most treasured jewel in Queen Victoria’s crown: the colonial hub of the largest empire the world has ever seen. Robert Clive (1725-1774) was not the most attractive of the major ﬁgures of British colonial history. He was violent, moody, self-centered, and conﬁdent to the point of arrogance (Woodruﬀ, 1953). His wild, undisciplined youth in English prepared him well for a robust career at a time and place that tended to reward the boldly unscrupulous. Certainly Clive possessed a measure of military genius in the deployment of guerilla tactics against the French and Dutch and his other enemies, but it is useful to recall that much of Clive’s success was due to Hindu collaboration. At Plassey almost one-third of his troops were Indians, and his campaigns were heavily subsidized by the Jaget Seth banking ﬁrm, which recognized the commercial advantages of stable rule (Ferguson, 2002). By the time of Clive’s return to England in 1760, in the middle of the Seven Years’ War, his status as a popular national hero seemed assured despite his scandalous enrichment. Yet over the coming years he had to withstand a constant barrage of personal attacks by enemies within the Company who resented his proposal that their assets and functions in India should be taken over by the British government. When he entered politics he became a public target before a parliamentary inquiry. In 1774, months before he took his own life in failing health, Clive complained of being treated like a sheep thief: “I stand astonished at my own moderation”. It is easy to condemn “empire-builders” like Clive. But he was a highly capable administrator, who did see the case for reform of the East India Company within the dual (private-public) framework of early British rule in India. He was the product of an astonishingly venal age (Woodruﬀ, 1953). He would not pass any modern test of probity. But neither, it seems, would any of his adversaries. In terms of civic enlightenment, Clive does not compare favorably with his protégé, Warren Hastings (1732-1818), who became India’s ﬁrst Governor General in 1773. Hastings has been well received by posterity. In contrast with Clive, he had the modern characteristics of virtue. He had to survive a motherless childhood; a snobbish father who put up a barrier between the child and his declasse mother’s family; and a designated uncle-guardian who set him up as an accountant and then sent him oﬀ at 17 to a trading company in India. Hastings seems to have advanced entirely on the strength of his personal merits. He was a hard-working, tenacious, and practical public servant, who liked and respected the Indians around him and earned their affection. He was a reformist by nature rather than through book learning (Turnbull, 1975). Such a modern and sympathetic ﬁgure might easily have been stranded in obscurity. It is Hastings, not Clive or any of the Mogul rulers, who deserves most credit for setting higher standards of civic behavior in India (Muir, 1915). Most modern readers

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are likely to side with Hastings in his late-career impeachment at the instigation of his ﬁery Whig opponents, Edmund Burke and Richard Sheridan. He was acquitted of personal corruption,. If he is to be considered guilty of anything, it might be of extravagance in his rewards to friends and associates, for he was a cultural relativist who felt obliged to accept the morality of the environment in which he was placed (Edwardes, 1976). Yet it was Hastings, not his eloquent critics, who laid the foundations of the incorruptible Indian Civil Service. At his death, he was mourned most deeply by those Indians who knew him best. Colonialism in French Indochina. French colonialism in Indochina was a feature of the 19th century and the ﬁrst half of the 20th. Indeed the term “Indochina”, denoting a single cultural region, is of 19th century French origin. By the late 18th century, the area encompassing Vietnam, Cambodia, and Laos had been tugged in three directions for centuries before it fell into the embrace of French imperialism. The ﬁrst tugging was by China. From ancient times Vietnam, like Japan and Korea, had been closely associated with the Chinese system of civilization. Around the time that Julius Caesar and his victorious successors were drawing most of Northern Europe into the ambit of Rome, the people of Vietnam were being subjected through conquest to the authority of the Chinese Empire (Woodside, 1971). In the view of most historians, the next millennium was a period of sustained sinicization, and the northern region of Vietnam was essentially a Chinese dependency (SarDesai, 1994). But the Chinese impact on the Vietnamese throughout that long period seems to have contributed to the consolidation of a distinct cultural identity that fortiﬁed the Vietnamese spirit of resistance. Over the next 700 years or more, the Chinese found it necessary on numerous occasions to send down invading armies on punitive expeditions. None of these incursions succeeded in the goal of subjugation, and the Vietnamese were rarely comfortable with the idea that participation in China’s tributary system carried an admission of subordinate status (Woodside, 1971). Indeed in the 17th and 18th centuries, authority over North Vietnam was shared between two powerful rival families, the Trinh and the Nguyen. It was at that time of division that the Vietnamese expanded southwards, further removed from Chinese inﬂuence, and that they made their ﬁrst contact with Western missionaries and traders. The Portuguese, sensing commercial advantage, gave their support to the Nguyen. In the 1780’s the Nguyen ruler sought out military assistance from the French. In 1787, two years before the outbreak of the French Revolution, an alliance for this purpose was concluded at Versailles, strengthening the power of Nguyen Aub who was proclaimed emperor of all Vietnam in 1802. The foundations for the French colonial presence in the region had been laid (Devillers, 1952). The rest of Indochina (Cambodia and Laos) was subject in the 18th century to tugging from the Vietnamese in the east and from the Thais (or Siamese) in the west. In earlier times the Thai and Lao kings may have accepted each other as equals, as some scholars have suggested, but by the 1770’s Laos was greatly weakened through a threefold partition. The half-Chinese Thai general Taksin had consolidated his power in Thonburi after ﬂeeing from the Burmese, who had taken the capital city of Ayudhya up river in 1767. He seized the opportunity to establish a new order based on

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conquest over his neighbors (Ngao-syvathn, 1998). By 1779 all three Lao kingdoms had been reduced to tributaries of Siam. At Taksin’s death in 1782, General Chakri accepted the throne, and under the regnal name of Rama I became the founder of the Chakri dynasty that survives today (Simms, 2001). Meanwhile, Cambodia was also struggling for survival, caught between the expansionist ambitions of the Thais and the Vietnamese. Since the 1680’s the Vietnamese had encroached steadily upon contiguous Cambodian territories in the Mekong delta, often using the alleged mistreatment of Vietnamese settlers there as a pretext for further interventions. A Cambodian balance-of-power strategy might have suggested alliance with the Thais, but at ﬁrst the Thais were fully preoccupied with their own problems created by Burmese incursions from the north. After Taksin’s victories, the Thais themselves felt it necessary to annex Cambodian territories, ostensibly as a preventive measure to protect the homeland from Vietnamese aggression. These multiple pressures, from all directions of the compass, created the preconditions of French colonialism in Indochina. Vulnerabilities in the region made it attractive to seek a patron outside the system of regional geopolitics, a power that could bring stability and prosperity without the disadvantage of tributary acquiescence to China. The diﬃculties of living peacefully together were to be the prescription for a French protectorate. Colonial Exploitation in Africa. Before the arrival of the Portuguese in the late 15th century, the European impact on Africa had been mostly limited to the southern perimeter of the Mediterranean. In the Maghrib (Algeria, Morocco, Tunisia), the Phoenicians had carved out Carthage (now Tunis) as the leading center for colonial trade in the region. This experience must have helped to “acculturate” the local Berbers for the subsequent arrivals of Arabs and Islam. Arguably, these new settlers from the East were better suited than the Greeks or Romans had been for penetration southward into the sub-Saharan regions of the continent (Oliver and Fage, 1995). The period from (say) 800 to 1300 AD was a time of enrichment for Northern Africa, in terms of cultural, scientiﬁc, military, civic and commercial beneﬁts brought in from an advanced system of civilization. Indeed the Berbers themselves became so sophisticated in these skills that they eventually acquired an important role as governors and commanders in the Arab world. Like the Carthaginians before them, the Arabs in the Maghrib tended to leave traﬃc into the desert hinterland to the nomadic Tuaregs, but by the 11th century the people of the western Sahara were becoming Islamicized, as the Sudanese to the east had been for centuries. A “puritan” ideology was being carried southward into the black empire of Ghana. By 1230 or thereabouts, Sundiata, a clan leader in the upper Niger valley, had risen to found the Mali empire covering a large area of Western Africa. Noting the higher achievements in the Maghrib, Sundiata and his Mande successors recognized the commercial and other advantages of adopting Islam and building an empire on the Sudanese model. The Mali Empire prospered chieﬂy, like other early empires, because of the widespread use of slaves (Thomas, 1997). Islam was late in coming to Christian Ethiopia, but when it did, in the 16th century, it resulted in the destruction of every Christian church and monastery and the re-

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moval of all objects of value. Finally, in 1543, the Ottoman Turks were beaten back by the Christians, aided by a small expeditionary force of Portuguese musketeers sent in from Goa (Oliver and Fage, 1995). Ethiopia recovered its autonomy by relocating its capital to the northwest, further from its vulnerable coastline. The pre-colonial history of other parts of Africa remains obscure, but it appears from orally maintained traditions that the people of Guinea in the 13th century might have begun to develop states similar to those of the Sudan. Modern research has not yet uncovered totally convincing evidence of the patterns evolving in Southern Africa, a mixture of hunting/gathering, herding, and farming traditions (Thompson, 2001). The record becomes clearer only in the 15th century, when the Spanish and Portuguese pursued their former colonial masters, the Moors, as they retreated to Morocco. Although they did not succeed in the policy of conquest, they did begin to acquire information about the wealth that lay for the taking further south. At ﬁrst the chief magnet was the fabulous gold trade of the western Sudan, coveted by all early visitors to Africa. Initially, pre-industrial Europe was chieﬂy interested in luxury goods, such as silks, perfumes, sugar, tobacco, and spices, commodities that Africans, unlike Asians and Americans, were not yet capable of supplying in commercially signiﬁcant quantities. Plantations successfully developed in the Canaries became the model for the Caribbean, but insuﬀerable climate and the problems of disease and transportation in West Africa prevented the expansion of the plantation system on the mainland. With the rising demand for labor in the American colonies, the new pattern of European exploitation in Africa became grimly evident. During the 17th and 18th centuries, the imperial assault on the African continent was driven not by the lust for settled colonies, as in Asia and the Americas, but by the ruthless pursuit of the Atlantic slave trade. The carving up of Africa would be a notoriety of the 19th century. By 1600 some 275,000 African slaves had been landed overseas; perhaps 1,340,000 in the 17th century; and possibly 6,050,000 in the 18th (Oliver and Fage, 11995). Throughout the 17th century, the European interest in Africa focused on commerce in goods and human beings, not on the settlements of large areas far beyond the chain of trading posts, which had been built mostly by the Portuguese close to the coast. By then the Dutch had founded a company to provide a regular supply of African slaves to the Caribbean, but by 1700 the Dutch slave trade out of Africa had been surpassed by British and French slavers. The ports of Bristol and Nantes were among those that prospered most in the new phase of the Atlantic slave trade. In 1720 nearly 150 British ships were engaged in that grisly business, mostly from Bristol and London but also a few from Liverpool, Whitehaven, Lancaster, Chester, and even the small but thriving port of Glasgow. At the same time the French on the Atlantic coast were also prospering from the slave trade, but none of the other ports of France were able to challenge the primacy of Nantes (Thomas, 1998). Appallingly, the Atlantic slave trade continued throughout the ﬁrst half of the 18th century without stirring feelings of guilt. In the consolidation of European world power, slavery became “a huge social and economic fact … symbolizing at its harshest the triumph of force and cupidity over humanity. Sadly, it was also only the outstand-

Constructing the Imperial World-system (1618-1815)

ing expression of a general dominance by force of advanced societies over weaker ones” (Roberts, 1995). Demands for moral responsibility ﬁrst took hold in the mid-18th century, chieﬂy in Britain and France under the humanitarian inﬂuence of the moralists of the Enlightenment. No one at that time was making more money out of slave trading than the British, whose huge sugar plantations in the West Indies depended entirely on slave labor. But the moral climate was changing under the inﬂuence of humane philosophes and literati such as Montesquieu, Hutchinson, Smith, Ferguson, and George Wallace, a Scottish lawyer, all of whom denounced slavery chieﬂy on moral grounds. The legal case was made more crisply by Sir William Blackstone in his famous Commentaries on the Laws of England. In the ﬁrst edition, published in Oxford between 1765 and 1769, Blackstone insisted that the common law “abhors and will not endure the state of slavery within this nation”. Legal reform resulted from the eﬀorts of a small group of English evangelical Christians in reaction to the new practice of engaging black African slaves as domestic servants in English households. The matter ﬁrst came to a head in the Somerset case, which reached the level of Lord Chief Justice Mansﬁeld, an Anglo-Scot from Perthshire who became the most prestigious common law judge of his era, especially in the domain of property and commercial law. The slave in this case, James Somerset, had been brought from Jamaica to England by his master, Charles Stewart of Boston, in 1769. Two years later Somerset escaped, was recaptured, and put on board a vessel bound for Jamaica, where he was to be sold. The shipment was suspended by legal action. On the basis of previous judicial decisions, there was no doubt about the master’s property right in the slave, but Mansﬁeld held that, in the absence of established precedent, slavery was too “odious” to lend itself to legal enforcement: as he later clariﬁed, the master had no right to compel the slave to go to a foreign country (Thomas, 1998). This decision was not an outright voiding of the institution of slavery, but it did give widespread encouragement to the moralists pressing for prohibition. Among the most prominent prohibitionists were the English Anglican philanthropist Granville Sharpe, the French-born Quaker Anthony Benezet of Philadelphia, Benjamin Rush, one of the Presbyterian Founding Fathers, also from Philadelphia, and later, of course, William Wilberforce (1759-1833). The ﬁrst country to take the formal step of abolishing the slave trade was Denmark in 1805, a direct result of Wilberforce’s campaigning on the continent. Two years later the British Parliament enacted legislation prohibiting the trade in slaves, followed in 1834 with the abolition of slavery itself throughout the British Empire. Ironically, by taking itself out of the empire on libertarian grounds in 1776, the United States was able to continue countenancing the status of slavery until 1865, despite sustained opposition to it by many liberal American campaigners. Discovering the Fifth Continent. Although climate and disease were protecting Africa from colonial settlement in the 18th century, another avenue for colonization was beginning to be explored. Indeed the unraveling of the mysteries of the South Seas began as early as 1688, when the English pirate William Dampier (1652-1715)

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ﬁrst ventured beyond the traveled waters of the Southeast Paciﬁc. He seems to have sailed through Torres Straits and the Arafura Sea, landing at several places on the northwestern tip of Australia, including Melville Island. Despite his unfavorable impressions of this barren land, his carefully detailed travel journal caught the attention of the British Admiralty, who spotted imperial advantage in further exploration of those distant horizons. In 1699 Dampier – now a legalized “privateer” was commissioned to embark on a better-provisioned voyage of discovery of Australia. This time he followed Vasco da Gama’s route down the west coast of Africa and through the Cape of Good Hope, and then sailed eastward until he reached the west coast of Australia in the vicinity of Shark Bay. Again he had trouble ﬁnding water or animals, and was forced to seek relief on the island of Timor. Replenished, Dampier navigated eastward and was rewarded with the discoveries of New Guinea and New Britain. By then the timbers of the Roebuck were deteriorating as seriously as the spirits of his crew. He was obliged to leave for home without completing his survey of the new found islands as thoroughly as the Admiralty might have wished. Nevertheless, Dampier had created a vision of the ﬁfth continent and of new territories to acquire (Wilkinson, 1929). Other explorers followed. Two in particular made important contributions to the discovery of the South Paciﬁc islands and the Australasian region. Louis Antoine de Bougainville (1729-1811), son of a wealthy aristocratic French family, had an early military career, serving as an aide-de-camp to General Montcalm before the ill-fated encounter with Wolfe’s forces on the Plains of Abraham. In 1764 he ﬁnanced the ﬁrst settlement of the uninhabited Falkland Islands, which had remained uncolonized since its discovery by the English navigator John Davis in 1592. Despite its remoteness from Europe, Falklands would prove attractive to the British, French and Spanish colonial powers, and became a source of controversy among international lawyers in the late 20th century. In 1766 Bougainville was commissioned by the French government to undertake a voyage of discovery that included visits to Tahiti, Samoa, New Hebrides, New Holland, and New Britain, which would lead to a permanent French presence in the South Seas. Like the other great navigators of that era, Bougainville was an impressively acute observer of new lands, unknown species, and unfamiliar customs. No one, however, matched the extraordinary achievements of Captain James Cook (1728-1779) (Beaglehole, 1974). He was born in a small Yorkshire village, son of a day laborer, one year after the death of Isaac Newton. So he was born into a world aware of the value of science. The boy was apprenticed ﬁrst to a grocer and haberdasher. Then, in the port of Whitby, he was taken on by a Quaker shipowner and coal shipper, who saw his young apprentice’s worth immediately and encouraged him to study mathematics in the winter months on shore. At 27 he was oﬀered command of a collier, which taught him much about navigation in the tricky waters oﬀ the east coast of England. Just before the outbreak of the Seven Years’ War in 1756, Cook volunteered for naval service, starting as an able seaman. Within two years he was assigned command of the Pembroke – perhaps the most rapid promotion in naval history! In that capacity he participated in the siege of Louisburg and transported some of Wolfe’s troops

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before their assault on Montcalm’s army in Quebec. It was in the St. Lawrence River and the waters oﬀ Nova Scotia and Newfoundland that Cook began to display his special gifts as a surveyor. His new knowledge owed much to the tutelage of Samuel Holland, a British military engineer, and to his own continuing studies of astronomy and mathematics (Carrington, 1967). Lt. Cook’s next command, the Endeavour, came when he was still under 40. He was commissioned by the British Admiralty to observe the transit of Venus in 1769, a matter of considerable scientiﬁc interest to the Royal Society. He himself was named as one of the Society’s oﬃcial observers. Also on board were two young botanists, who would become two of the greatest natural scientists of the 18th century. One was Joseph Banks, a young English gentleman “blessed with the multitudinous gifts of wealth, brains, a sense of adventure, and the scientiﬁc spirit”, and the other was Daniel Solander, a Swedish “brother botanist of great distinction” (Beaglehole, 1961). At the time of Cook’s ﬁrst expedition, accurate navigation “depended for longitude on the measurement of the angular distance of the moon from the ﬁxed stars. It could take up to four hours of numerical calculation to work out the longitude … By this method Cook was generally able to determine the longitude to less than thirty miles” (Blackett, 1970). In Tahiti, which had been discovered the previous year by Captain Samuel Wallis, Cook established an excellent rapport with the local people. Then he visited and named the Society Islands, before ﬁnding and circumnavigating New Zealand and visiting the east coast of Australia. Oﬀ the shores of New Zealand and Australia he navigated with unerring virtuosity and surveyed with unprecedented accuracy. The excellence of his charts for those and other waters still dazzles the nautical world. On his second voyage (1772-1775), commanding the Resolution and Adventure, Commodore Cook navigated through dangerous Antarctic ice-ﬁelds and made an astonishing succession of tropical and sub-tropical discoveries: the Marquesas, Niue, Tonga, the New Hebrides, New Caledonia, South Georgia, the South Sandwich Islands, Easter Island and numerous other smaller islands. New Zealand was revisited on several occasions. On this voyage, a reasonably accurate chronometer had become available, an instrument based on the pioneering work of John Harrison (1693-1776). Though not entirely reliable, it was a major improvement over sole dependency on lunar sightings for determining longitude at sea (White, 1970). Despite the dangers and hardships involved, Cook established and maintained the highest health standards ever attained at sea, and conducted continuous observations of invaluable beneﬁt to the scientiﬁc research community. On his return to England, he was elected Fellow of the Royal Society, awarded the prestigious Copley Medal for his pioneering work in the prevention of scurvy, and promoted to Captain (Blackett, 1970). Captain Cook’s third and ﬁnal expedition with the Resolution and Discovery (17761780) was designed especially to survey the waters oﬀ the Northwest Paciﬁc coast of North America in the hope of discovering access to the fabled Northwest Passage. On the way there, he revisited New Zealand, Tonga, and the Society Islands, and discovered the Hawaiian archipelago, before reaching the Bering Sea close to the Aleutians. While wintering back in Hawaii, the famous explorer was killed in

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what appears in retrospect to have been a preventable incident with a local band: the victim of “mistaken conﬁdence” (Carrington, 1967). It was a tragic end for a man renowned at the very least for his ﬂair for diplomacy, and a man treated like a god in so many of his exotic encounters (Obeyesekere, 1992). James Cook’s accomplishments and characteristics are so impressive that he has become the focus of more biographies than almost any other major ﬁgure in world history (Beaglehole, 1974). Because he is so famously admired, Cook has become a large target for recent historians and biographers bent on revisionism. No mere mortal, surely, is entitled to such accolades. By our standards now, he could not have been a devoted family man! It is strange certainly that Cook is still venerated in Australian mythology as the “discoverer” of that continent. Others went before him (Clark, 1987). In the words of Jillian Robertson (1981), he “charted Australia from Cape Everard to Torres Strait and he did it well. That’s all”. The elevation of Cook as the original discoverer of New Zealand does an injustice to Abel Janjzoon Tasman (c. 1603-c. 1659), who preceded him there by over a century and a quarter (Beaglehole, 1961). Yet he is “the man in the history of oceanic exploration most diﬃcult to overpraise”. Probably no man of action before or after Cook combines so many qualities that appeal strongly to the modern mind. So we imagine him to be even greater than he, or anyone else, could possibly be. In Britain the legend of Captain Cook has become a cultural imperative: a “British Columbus”, a yardstick by which to measure the achievements of others (Frost, 1979). In the Western world more generally, Cook also serves – not quite perhaps, but almost – as a model of humanist virtue that might mitigate the excesses of colonial exploitation of his time, and of the centuries that followed. The Sinews of Global Sea Power The carving up of the ﬁve continents was motivated by the lust for wealth, an aﬄiction that spread out of the fevered 16th century. The imperial world-system of the centuries that followed could not have existed without the infusion of phenomenal energy in the merchant community. The Arab, Persian, Indian and Chinese traders of the early modern world may have been no less greedy than the merchants of postmedieval Europe, but in retrospect it appears that their rulers lacked the political will to build and maintain a global market-place. Such a vision could not be realized without the capacity to bring it into being. In the era of the early modern sovereign state, economic globalization depended on the invention of sea power. At the beginning of the 17th century, Portugal was still a hugely successful maritime power with overseas possessions rich enough to sustain one of the poorer domestic economies of Western Europe. The Dutch were becoming the most eﬃcient foreign traders in the East, protected by the world’s largest and best-equipped private ﬂeet. But Spain still possessed the world’s largest navy, despite increasingly intolerable strains on the royal treasury. The Spanish “conquest” of the New World had never become a complete or fully eﬀective “occupation”. The American landscape was simply too immense to be pervaded by Spanish settlers. Their communities were tiny and vulnerable, so thinly scattered as to make them “virtually invisible” (Kamen, 2003). Around 1570 there

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were barely 25,000 Spanish households in the American hemisphere. In a town as sizable as Cartagena (Colombia) only 300 of its population were Spaniards. With such a modest presence, the Spanish settlers’ best hope was to establish a secure coastal zone in a few strategically crucial areas like the Yucatan Peninsula, based on collaboration rather than naked conquest. One of the wonders of Spanish colonial rule in America is that it survived at all. Lacking any central system of administration on the continent, the king’s representatives relied mostly on their astuteness in making economically attractive deals with local elites. The chief military threat to Spain was seen to be that of the Turks, who continued to inﬂict punishment on the forces of Christendom throughout most of the Mediterranean. Much of the Spanish wealth extracted from the New World was invested in the salvation of the Old, in what must often have appeared to be a losing cause. In 1559 Spain and its allies suﬀered their most severe defeat at sea, when half the Christian ﬂeet was sunk at Djerba, oﬀ the coast of Tripoli. Somehow, the Spanish Empire survived in Europe despite these and numerous lesser reverses, but its vulnerability at sea was becoming clear to those best placed to perceive where it lay. Most historians agree that the Armada was less a military defeat for the Spanish Royal Navy than a natural disaster. The storms that sprang up in the English Channel in the summer of 1588 were exceptional, and they favored the English outrageously. The ﬂeet was destroyed on the rocks of the Scottish coastline after it was blown hopelessly oﬀ course. The English claimed a “victory that never was”, and in their anti-Spanish exultation created a self-sustaining myth that would justify the building of the greatest sea power the world had ever seen (Herman, 2004). Like other navies of that era, the Spanish Armada consisted essentially of armed troop carriers designed to carry large numbers of soldiers to the major ports of Europe for dispatch to the battleﬁeld of the day. An enemy encountered at sea was an occasion for grappling and boarding. The age for broadside ﬁring and sinking, for tactical maneuver, had not yet arrived. Moreover, the European navies of the 16th century were composed mostly of privately owned vessels brought together at royal request. In the case of Spain, the ruling Castilians looked down on seafaring. The army was “accepted as a route by which one could gain honor and glory, but not the navy” (Kamen, 2003). Even after Philip II’s creation of a naval system to regulate crossings of the Atlantic in the 1560’s, the Belgians, the Portuguese, and especially the Basques, continued to provide most of the skills required for Spanish success at sea. Spain continued to assemble the occasional armada, and one landing party even set foot on the soil of England’s West Country. But although she maintained a large ﬂeet down to the end of the Napoleonic Wars, she never recovered her status as a truly formidable navy power (Stevens and Westcott, 1920). The British Empire, on the other hand, rose with the prestige and political inﬂuence of the West Country. The government in London was impressed with the hard men of the sea from Devon and Cornwall, and from Dorset and Somerset: men such as John Hawkins, Francis Drake, Walter Raleigh (tougher and more predatory than his image as a courtier might suggest), Humphrey Gilbert, Richard Grenvlle, and the Trelawneys. There was no Castilian-type condescension to overcome in the court of the Tudors.

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The rise of British sea power might be said to have begun with the ﬁrst of the Tudors, Henry VII. This prudent monarch was not especially war-like by the standards of his day. Indeed he put some stock in diplomacy. But, in the words of Francis Bacon, he “could not endure to see trade sick”. English commerce abroad had declined grievously during the dynastic internal struggles of the 15th century. On accession in 1485, Henry applied himself to ridding the English Channel of its pirates, which was seen to be the ﬁrst step toward the revitalization of England’s export industries. To build a proper navy he resorted to the Spanish strategy of oﬀering a bounty for the construction of ships by private owners. In any emergency, these vessels could be chartered by the Crown to strengthen the royal ﬂeet at the rate of three pence per ton per day. He also enacted the Navigation Act, the latest in the succession of statutes designed to protect English ports and English ships against foreign competition, which had been begun by Richard II near the end of the 14th century (Fowler, 1965). Henry VIII, characteristically, took a bolder approach to the construction of a more powerful navy. It is said that excommunication from the Church of Rome – spiritually sanctioned isolation from the continent – gave him a pretext for building up his country’s defenses, but England’s most belligerent monarch quite simply liked ships and guns. As a highly competitive sportsman, Henry admired the skills of conquest. He loved to inspect his ships in Portsmouth harbor, rigged out in a kind of uniform. He seems to have originated the royal tradition of wearing naval dress that eventually extended to most of Europe’s courts and has lasted to the present day (Herman, 2004). Yet although he was the ﬁrst great builder of the Royal Navy, he displayed little interest, unlike his cautious father, in using his ships for audacious voyages (Fowler, 1965). Money was, of course, at the root of the Tudor naval policy. For Henry VIII as well as his daughter Elizabeth, overseas wealth was attainable only through a navy strong enough to control the sea-routes. Yet the Tudors were no more discerning than Philip II of Spain. They too failed to grasp the necessity of a public navy for building a sustainable empire overseas. Elizabeth, like her father, had brought England to the edge of bankruptcy with her commitment to an expansionist policy based on land warfare. The Tudor navy, though large, was still under-resourced and many of the English aristocracy competed aggressively for royal appointments as lords of the Admiralty solely in order to proﬁt from pirates’ prizes in the Admiralty courts. The British Navy evolved as a professional body out of the Stuart era, when the soaring volume of maritime trade in sugar, tobacco, spices, cloth, and other highdemand commodities proved the economic advantages of a policy of peaceful commerce. Britain and most of its trade rivals in Europe began to realize that their future enrichment overseas depended on the possession of a strong, publicly funded navy. Only a larger-scale investment in sea power could keep these trading nations competitive in an expanding world. Substantial public funds would have to be spent on bigger, more heavily armed ﬁghting ships. Spain found that it could not cope with such a demand on its ﬁnancial resources, and by the end of the 17th century it had fallen out of the major league of imperial contenders. In Britain, by contrast, domestic political pressures gradually ensured support for granting national priority to the building of a formidable navy. Despite the greatest

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ill-will between the Crown and Parliament, naval revenues started to ﬂow out of Charles I’s policy of taxing the coastal towns, such as Plymouth and Bristol, to pay for a royal ﬂeet to protect their merchants in time of war. “Ship money” made it possible to build powerful warships like the Sovereign of the Seas in the 1630’s. Major public expenditures in the decades that followed began to attract a new class of professional naval oﬃcers from humble families. As Herman (2004) argues, Britain’s rise to imperial supremacy in the late 18th century was primarily the accomplishment of the Royal Navy, the ﬁrst public institution based entirely on personal worth: the world’s ﬁrst meritocracy. Some historians trace the rise of the Royal Navy, and its tradition of eﬃciency and discipline, to a rigorously professional soldier, Oliver Cromwell. It was the Puritan Lord Protector, founder of the “New Model Army”, who insisted on a professionally trained military cadre of “Ironsides” for the ﬁeld of battle. It was he who appointed Robert Blake, his colonel of the militia, as one of three “generals at sea”. Blake, whose true ambition was to become a professor of Greek at Oxford, became instead the ﬁrst of Britain’s great admirals, leading his ﬂeet to eventual victory over Martin Tromp and the other Dutch admirals of renown in the Anglo-Dutch Wars (Stevens and Westcott, 1920) On the other hand, Admiral Mahan (1890), the prodigious chronicler of naval history, has assigned paternity to Charles II, who on his restoration to the British throne in 1660 gave immediate priority to naval armaments in defense of the realm. In his correspondence with Louis XIV of France, Charles found the conﬁdence to explain to his fellow monarch that it was “the custom of the English to command at sea”. His successor, James II, was himself a sailor, who had commanded in two battles during the Second and Third Anglo-Dutch Wars. The salt of the sea was in his blood. The accession of William of Orange in 1690 created a temporary union between Britain and Holland, which seems in retrospect to have given further advantage to Holland’s “artful friend”. The Dutch, now a fading naval power, would contribute a larger standing army, but Britain would provide most of the muscle at sea. Others might give even greater credit to Sir John Jervis, who in the 1790’s transcended all previous standards associated with the duties of the First Lord of the Admiralty. It was Jervis who established the Royal Navy as a public service system of professional leadership based on strict discipline, a high level of eﬃciency in ﬂeet and ship management, and genuine consideration for the health and welfare of its crews. None of Jervis’s successors at the Admiralty were to match his exceptional administrative talents, at least not until the time of Lord John Fisher, father of the Dreadnought class of battleships at the beginning of the 20th century, and of Winston Churchill as the First Lord of the Admiralty at the beginning of the First World War. It was also Jervis who ﬁrst recognized the remarkable leadership abilities of Horatio Nelson (Mahan, 1897). After the victories of the Royal Navy during the Napoleonic Wars – at Cape St. Vincent (1797), the Nile (1798), Copenhagen (1800), and Trafalgar (1805) – Great Britain emerged as the undisputed “mistress of the seas” and the predominant power in world trade and diplomacy (Stevens and Westcott, 1920).

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Reﬂections. The 17th and 18th centuries created the phenomenon of “world power”, and proved that command of the sea was crucial to it. It was an era of anomalies that provokes ambivalence among many contemporary readers of world history. On the one hand, it was a period of amorality in the conduct of inter-state relations. Virtually all Western rulers and ruling elites, sharing the same exploitative ethos, pressed whatever national advantage might be wrung out of the power they could command, and sea power proved to be the trump hand. Today, military oﬃcers, academic strategists, and other exponents of “political realism” see honor, not disgrace, in the use of power in an honorable cause. In an age of somewhat more ethical inter-state relations, international law is sometimes found to be inadequate by political realists as a mode of response to certain kinds of dangers and provocations, which seem unlikely to be dealt with eﬀectively and expeditiously through UN Security Council diplomacy or adjudication before the World Court. In the 1980’s the military regime of Argentina was threatening the British colony of the Falkland Islands (the Malvinas) by force, on historical grounds judged in London to be somewhat ﬂimsy. It might have been politically possible for the British government to leave that “threat to the peace” to the Council or to the International Court of Justice, but Prime Minister Thatcher perceived the issue as an opportunity to resort to a self-help strategy, a measure that could only succeed through the expeditionary resources of the Royal Navy. Many political realists have accepted the use of limited British sea power in the crisis as exemplary: as the “classical exertion of gunboat diplomacy to create a fait accompli which the victim could not resist and to which he could only respond by acquiescence or by war” (Cable, 1985). Fortunately – in the eyes of an international lawyer – few political realists in our time are likely to espouse such a negative view of international law as that of Admiral Mahan as the 20th century was turning. The famous naval oﬃcer and historian was a man of his own time (Herman, 2005). He discerned in “arbitration”, then re-presenting itself as an alternative to war, what he described as “a clear tendency … to progress from a means to be used voluntarily to one that shall be more compulsive” (Mahan, 1912). Signiﬁcantly, he saw in “compulsory arbitration”, or perhaps international law more generally, “a system for the community of nations resembling that which Socialism would impose within the single state”. A man of yesterday, he still speaks perhaps for many Americans distrustful of the international community, who trust to the political judgment of their own national leadership rather than to an institutional application of international principles. Today, looking back from the libertarian perspective of our own era, we cannot easily reconcile the civic enlightenment of Western idealists such as Locke, Hutchinson, Hume, Smith, Voltaire, Montesquieu, Rousseau, Franklin, and Jeﬀerson with the rampant greed in Europe that energized the global process of empire-building .Yet in that same age, when rulers and elites were exploiting the advantages of state sovereignty and national interest, the vision of human welfare was most eloquently articulated. It was the pivotal stage in world social development when the basic dilemma of international law was ﬁrst posed: how to build an ethically sound system of world order based on “political realities”?

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Sadly, the international law community in 1815 was about to turn away from the generous imagery of human welfare and to focus instead on the elaboration of a system of convenience for the privileged possessors of sovereignty. The chief beneﬁciaries would be those states most capable of exploiting lesser powers and best placed to capture colonial territories overseas. The full truth, however, is not so simple. First, in the late 20th century, as we shall see, it was the values and principles clariﬁed and re-aﬃrmed in the Age of Enlightenment that would inspire all modern movements of legal and civic reform. They were also the source of the idealistic language of the Charter of the United Nations. The same values and principles would inﬂuence subsequent initiatives in global diplomacy aimed at the reduction of interstate disparities. The principles of state independence, state sovereignty, and state equality belong chieﬂy to the conceptual heritage of the Western world: the non-altruistic, motivational value of enlightened self-interest. In addition to its role in distributive justice (Johnston, 1978), contemporary international law now focuses more than ever before on the needs and interests of individuals, minorities, and specially disadvantaged groups within society, who are often the victims of oppressive regimes controlling the state apparatus. Ironically, it was 17th and 18th century Western theory, which purported to validate the notion of state prerogative in the Age of Empire, that also advanced the goals of civil society and freedom from the abuse of power in the Age of Enlightenment. Most of the colonies seized in the 17th and 18th centuries were to become fully independent sovereign states in the second half of the 20th century: India, Indonesia, Singapore, Malaysia, Algeria, Morocco, and most of the island states of the Caribbean and the South Paciﬁc. In many cases, the negative as well as the positive impacts of empire are still discernible. Historic guilt and political ideology may contribute to the diﬃculty of disentangling the lingering eﬀects of colonial rule. In the case of Goa and Macao, the consequences of colonization may now be mostly architectural, as these territories merge back into their original cultural and political environment. All will have to be revisited when we arrive at a more recent stage in the history of international law. Consolidating the Inter-state System Driven by acquisitive zeal, the machinery for the conduct of inter-state relations was being assembled in Europe in the early decades of the 17th century. As Great Britain was struggling with fundamental issues of domestic governance, its principal rivals on the continent were vying for international leadership. More often than not, to achieve the status of an independent sovereign state was to have the capacity to project national power outward into the expanding world. After the Peace of Westphalia, there was a gradual acceptance of the new reality that there might sometimes be peaceful alternatives to wars of conquest. Nationalist sentiment and dynastic ambition might both be satisﬁed through an organized deployment of self-interested foreign policy strategies. On a new kind of battleﬁeld, each could now resort to the apparatus of permanent diplomacy and take up the challenge of negotiating a network of treaty settlements and arrangements. The next century

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would be an innovative era of statecraft, when national governments could extract the beneﬁts of autonomy by developing international rules and procedures that depended on the willingness of sovereign nation-states to grant consent to cooperative relationships with counterparts acknowledged as equals. But Europe at that time was still an arena of self-grandizing monarchs. Questions. Who were the contenders for power in 17th and 18th century Europe? What patterns of hegemony and alignment were emerging from the new dynamics? As the stage was being set for a more purposeful political drama on the continent of Europe, who were waiting in the wings to take over the leading roles? What kinds of agency functions were evolving in the diplomatic community? How much, in any event, was known about the history of treaty-making? What impact would the burgeoning inter-state system have on the theory and practice of the law of nations? The Power-Holders. The ﬁrst stage of inter-state politics in continental Europe was dominated by personal rulers obsessed with visions of dynastic glory (Braun, 1929). Legitimated by lawyers as possessors of “sovereignty”, most European monarchs felt justiﬁed in deﬁning themselves as holders of absolute temporal authority, as much a matter of divine duty as of natural entitlement. By the late 18th century, these absolute monarchs would be joined by the elected representatives of reconstituted states: at ﬁrst by the Netherlands; then by the United States and France and eventually by the independent republics of Latin America, with more limited resources and ambitions but ready to assume some kind of international role. Within the framework of inter-state relations in 17th century Europe, no one power was more formidable than France. The French capture of hegemonial status on the continent, replacing that of Spain, dates from the inauguration of the Bourbon line in 1589. In that year Henry of Navarre (1553-1610) was vaulted on to the throne of France, as Henry IV, by the murder of his predecessor, Henry III. Security of tenure was seen to be attainable only through the acquisition of personal power at the center of the realm. Henry IV had been raised as a Protestant by his mother, Jeanne d’Albret, but he recognized that his upbringing made him unsuitable as leader of a large country with a massive Catholic majority. He was ready to accept conversion to Catholicism as a condition of his accession to power: “Paris is well worth a mass” (Paris vaut bien une messe). But his hold on power was not secure until a succession of military battles had been fought and won, and the rights of French Protestants established by the famous Edict of Nantes in 1598. By then he had earned an unusually wide measure of general support, inﬂuenced by his populist promise of “a chicken in every pot” (la poule au pot). Without undue aggressiveness, Henri Quatre succeeded in reducing Spanish inﬂuence in Europe, mainly through strategic alliances with the Pope, the German Protestant princes, and the Swiss, and a successful mediation between Spain and the United Provinces of the Netherlands. The popular ruler died at an assassin’s hand in 1610, but by then he had restored the credibility of the monarchy and established the foundations of an eﬃcient national bureaucracy.

Constructing the Imperial World-system (1618-1815)

Diﬃcult times followed the strong rule of Henry IV, who died without an heir, but these were the years when Cardinal Richelieu (1585-1642) acquired an unparalleled position of inﬂuence during the reign of Louis XIII as his vainglorious, but highly capable, “principal minister”. In matters of foreign policy, Richelieu was the ﬁrst to apply the “reason of state” (raison d’etat) doctrine of Machiavelli with the full vigor and ruthlessness of a major power. He perfected the art of diplomatic intrigue. It was Richelieu, above all, who ﬁrst developed an amoral foreign policy designed in detail to maximize the beneﬁts of the state regardless of the costs incurred by others. The Richelieu approach was to set the tone for European great-power diplomacy for the next 250 years. Biographers have not spared the cardinal. O’Connell (1968) does not excuse his subject. “His responsibility for the unparalleled miseries of war was enormous … He died with the same serene indiﬀerence to his own faults as he had exhibited towards the human misery of those he had sacriﬁced to the Moloch of the state … It was left to God to review the balance sheet: a fatal designation of the nation as a paramount moral end, and the justiﬁcation of means by reference to it, would be weighed against the cleansing of the Church, the assertion of its moral authority and the preservation of its doctrine … vanity against unexampled courage, dedication and self-sacriﬁce; misuse of others in the implacable pursuit of power against a scrupulous use of this power for the good of the body politic …” However, it was the reign of Louis XIV (1638-1715) that marked the triumph of French ascendancy in the aﬀairs of Europe (Gaxotte, 1970). In raising himself (the “Most Christian King”) and his Bourbon family to an unprecedented level of absolute authority at home, Louis also elevated the French nation and culture to the highest level of international prestige. Richelieu had been succeeded by a protégé of no lesser gifts of intrigue and secret diplomacy, Cardinal Giulio Mazzarini (or Mazarin) (16021661). “Tenacious in purpose, crafty in method, supple in activity, and unscrupulous in the use of means”, Mazarin invariably prevailed over his critics at home by appealing to the “instinct of unity in the French nation” (Hill, 1967). By his extraordinary ﬂair for great power diplomacy, Mazarin laid the foundations of Louis’s future reputation as the master of the European scene. Louis was a diﬃcult man who grew out of a diﬃcult child. Hugo Grotius, seeing him in his crib, sensed his imperious presence: “His frightful and precocious avidity is a bad omen for the neighboring peoples; for he is at present on his ninth nurse, whom he is rending and murdering as he has the others”. The great Dutch jurist’s prescience was never more remarkable. Louis XIV’s impact on the politics of 17th-century Europe would be hard to exaggerate. He never did say “L’etat c’est moi”, but it was certainly he, above all, who imposed unity on the nation (Bluche, 1990). In transforming the realm of France, he changed the concept of monarchy and of Europe itself. The style of monarchy that the sun-king (roi soleil) cultivated was so glamorous that it became a model for other princes who aspired to the rank of an absolute sovereign: all–powerful, calm, amoral, luxurious, intelligent and preferably, but not necessarily, enlightened. “Few buildings (or the lives lived in them) can have been so aped and imitated as those of Versailles. In the next century, Europe was studded with miniature reproductions of the huge new palace he build there and its court life”

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(Roberts, 1997). Yet the model monarchy of Louis XIV had almost no inﬂuence at all on the man we might choose as the most impressive European monarch of that era. Peter the Great of Russia (1672-1725) was as diﬀerent as it was possible for a monarch to be from the French prototype of an absolute ruler. At Peter’s birth, almost half-way through Louis long life, Russia was still a backward country, mired in factionalism and wholly incapable of playing a signiﬁcant role in the power politics of Europe. It was a huge country with vast resources to exploit, but no access to the Baltic or Black Sea. Yet it was precisely his determination to overtake the developed countries of Western Europe that inspired Peter’s extraordinary reign and earned him the respect of posterity as one of the great royal reformists of world history (Dwyer, 2000). Peter was the son of Tsar Alexis by his second wife, Natalia Kirillovna Navaphkina. Peter’s exposure to the progressive ideas current in Western Europe in the 1680’s owed much to the liberal orientation of his mother’s own education. A family power struggle after his father’s death forced Peter and his mother to ﬂee the palace and to seek out a more cosmopolitan lifestyle in a Russian province where foreigners were allowed to reside. Undisturbed by his capable half-sister, the Tsarevina Sophia, Peter was free to devote his childhood years to matters that engaged his interest: ﬁrst toy soldiers, and then military science, navigation, mathematics, carpentry, printing, and other practical skills that could be applied to the solving of problems. Especially in his early years, Peter was stunningly non-ostentatious – non-Bourbon – in his life-style. Huge and remarkably strong, he seemed to delight in his own fearlessness. Professor L. A Nikiforov’s portrait of Peter the Great is not lacking in focus. “Unlike all earlier tsars, whose Byzantine spendours he repudiated, he was very simple in his manners: he enjoyed conversation over a mug of beer with shipwrights and sailors from the foreign ships visiting St. Petersburg. Restless, energetic, and impulsive, he did not like splendid clothes which hindered his movements; often he appeared in worn-out shoes and an old hat, still more often in military or naval uniform. He was fond of merry-making and knew how to conduct it, though his jokes were frequently crude; and he sometimes drank heavily and forced his guests to do so too. A just man, who did not tolerate dishonesty, he was terrible in his anger and could be cruel when he encountered opposition …” Indeed he had his own son tortured to death. Such a man we can imagine at the age of 27, traveling incognito abroad, as Sergeant Petr Mikhailov, to learn at ﬁrst hand how the Western Europeans thought and lived. For four months, in disguise, he worked as a carpenter in the Dutch East India Company’s shipyard at Saardam, but sometimes he expected others to recognize his pose of the day and to treat him with the deference his true status required (Hingley, 198). Most of Peter’s remarkable reign was a succession of battles against his enemies at home and abroad. All opposition was put down with alarming severity. Nothing was allowed to deter his intelligent eﬀorts to raise his country to a level it had never previously aspired to. He was certainly the greatest of all the tsars. The Russian government system of his time was overhauled; industries were developed; the Orthodox Church was reformed; and a special eﬀort was made to create a military organization along modern professional lines. Since Peter the Great, the Russian military elite has

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remained a source of national stability and a model of professionalism, an institution proud of its tradition of detachment from politics even in time of national stress. In 1725, the year of Peter’s death, a thirteen-year-old Prussian prince was soon to explore still another way of preparing for a career in power-holding, as diﬀerent from the avenue of Louis XIV as from Peter’s. Disﬁgured by curvature of the spine, like the Richard III of Shakespeare’s imagination, Frederick the Great (1657-1713) had to endure the contempt of his militaristic father, Frederick William I. The monarch’s ungoverned bouts of rage may be attributed to a combination of ailments: porphyria (the “royal malady”), nephritic colic, and gout (Gothelf, 2000). Be that as it may, Frederick William’s conception of a suitable successor as the builder of Prussia as a great power did not include his bookish third son. But the premature death of both elder brothers placed this ﬂute-playing, free-thinking reader of French literature in the line of succession. His desperate eﬀort to escape to England, to enjoy the amenities of political asylum, miscarried. A military court appointed by Frederick William to try his own son, the heir apparent, on the charge of treason, decided – carefully or legalistically – that it lacked jurisdiction. Faced with the implacability of destiny, Frederick began to apply his mind to the responsibilities of an enlightened 18th century monarch. His second political essay, Antimachiavell (1740), caused a sensation, especially in the literary circles of Paris. “The ruler”, he wrote, “is in no way the absolute lord of the people under him, but merely the ﬁrst servant”. At ﬁrst his reign was marked by a commitment to the cause of civic enlightenment: torture as a method of information-gathering was abolished; criminal punishments were moderated; and Christian Wolﬀ was excused his libertarian sins. The philosopher-king (roi philosophe), himself a gifted writer and composer, became Europe’s leading patron of the sciences and the arts. But it was too late to dissociate Prussia from the power game, which proved an irresistible challenge to a ruler with a formidable army at his command. Europe was to discover that the bookish monarch had inherited his father’s military genius. Frederick had no choice but to respond with vigor to the machinations of other powers. In seeking to proﬁt geopolitically from the overseas colonial rivalry of France and Great Britain (now the United Kingdom), Frederick overplayed his hand in the Seven Years’ War by entering into alliance with London under the Convention of Westminster (1756). This strategic arrangement had the eﬀect of creating an anti-Prussian coalition of powers headed by France, Austria and Russia. Subsequent defeats by these powers almost resulted in the destruction of the Prussian state, but the accession of Peter III of Russia, a fawning admirer of Frederick, saved the day, leading to an all-important alliance with Russia (Gaxotte, 1941). In the eyes of later generations, Frederick the Great remains a “magniﬁcant enigma”. He was a master of realpolitik with an iron will, and yet an artist unable to suppress his own humanity. Equally, it seems, he was an exponent of the hard game of territorial acquisition and a reformist of the Enlightenment: in short, a product of the 18th century (Asprey, 1986). Frederick lived to a good age, surviving the Seven Years’ War by 23 years. Visitors descended upon him, a wonder of the modern world. He lived long enough to earn aﬀection as a genuine reformer in almost all sectors of civic aﬀairs. He was hailed as

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the exemplar of the “enlightened despot”. Most rulers are not privileged to discover the verdict of posterity, but in his ﬁnal years the Prussian monarch was already referred to by his own subjects as “Frederick the Great”. Perhaps less deserving of such approbation is the alluring ﬁgure of Catherine II (1729-1796), the German-born Empress of Russia, wife and successor of Peter III. It was not a happy marriage: she had to suﬀer an inept husband with a tendency to grovel before the great but imperious Frederick; and he had to live with a much abler, faithless, and scheming wife with screaming hormones. It was her scheming, in large part, that placed her on the throne in 1762. With Catherine’s prior knowledge, Peter was murdered by one of his numerous opponents. Arguably it was a preventive strike that saved her own life – these were murderous times. The idea that she might accede as Regent for her seven-year-old son may never have crossed her mind (Thomson, 1966). Her coup had overtones of the 16th century. Yet Catherine was to reign ably for 34 years over the most turbulent country in Europe. Catherine too was a ﬁgure of the Enlightenment. Like Frederick the Great, she was a correspondent and patron of the most prominent philosophes, including especially Voltaire and D’Alembert, and was courted by revolutionary adventurers such as the Venezuelan Miranda. She was particularly interested in fostering the love of French culture and modeled her court on the Bourbons’ in Paris. Early in her reign she made an eﬀort to reform Russia, founding schools and hospitals, but increasingly her true autocratic nature revealed itself (Alexander, 1989). Though never hated by ordinary, non-aristocratic Russians as much as most of the foreigners who preceded her on the Russian throne, Catherine failed to establish a bond of sympathy for the serfs, who continued to live in misery. Indeed, as Roberts (1997) notes, she was the “landlords’ tsarina”, increasing their powers of repressive administration and removing the serfs’ right of petition against them. Like other European sovereigns of the day, she was alarmed by the French Revolution and retrogressed. The most signiﬁcant achievements of Catherine the Great were in foreign aﬀairs, where she pursued the same expansionist policies as Peter the Great. Through a combination of decisive military action and skilful diplomacy, she added immensely to the size of Russia. Her acquisitions included large portions of Poland, not only those with Russian inhabitants. After three successive partitions, Russia absorbed 180,000 square miles of Polish territory and six million new subjects. In two wars against Turkey, Catherine annexed the Crimea and secured access to the Black Sea – a huge strategic prize. Her success in personal diplomacy owed much to her intellectual reputation, but also to her “majestic and dynamic presence” and, we might suppose, her “smouldering sensuality” (Alexander, 1989). By the end of her reign, the German princess had contributed as much as Peter the Great to the building of Russia into a major player in the modern game of European geopolitics. The Agents. For over 150 years we have grown accustomed to the anonymity of professional diplomacy. The need for personal diplomacy, at the summit of political authority, occasionally asserts itself, and no doubt the outcome is sometimes aﬀected by the force of dynamic personality or intellectual reputation, if not smoldering sensuality. Although absolute rulers like Frederick the Great and Catherine the Great

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are no longer with us, some of their personal characteristics re-appear from time to time in diplomatic encounters between presidents and prime ministers. By and large, however, diplomacy today is the work of professionals dependent on permanent access to their own ambassadorial and consular establishments around the world. Between 1618 and 1815 professional diplomacy did expand, but even the most sophisticated envoys in the 18th century knew that they were mere accessories to the power-holders, who were the true negotiators on matters of substance. Nicolson (1963) reports amusingly on the eﬀorts of the gifted British ambassador Sir James Harris (Lord Malmesbury) to induce Catherine the Great to ally herself with his country. After being invited to her private dressing-room, Harris began by suggesting that Russia might make a naval demonstration against France and Spain. “The Empress remarked that surely the British ﬂeet was a match for those of our enemies, and that if we really wanted peace we should give the American Colonies their freedom. Harris asked her whether if she were Queen of England she would make any such sacriﬁce. She replied that she would rather have her head cut oﬀ. She then pointed out, with justice, that this was no Russian quarrel and that she saw no reason why she should risk the Russian ﬂeet in western waters. Harris pointed out to her that she would acquire much honour and glory by such an escapade. ‘She seemed’, he records, ‘much pleased with the idea’. Yet she evaded committing herself ”. The diplomatic methods of the day are illustrated by the next, post-boudoir, steps that Harris felt obliged to take in the course of ambassadorial duty. He became intimate with Count Potemkin, Catherine’s lover and Vice-Chancellor, and gave large sums of money to his friends. He tried to destroy the inﬂuence of Nikita Panin, head of the Collegium of Foreign Aﬀairs, an obstructionist. “Nor did he fail to press his suit upon the Empress. ‘Were I a younger woman’, she said to him, ‘I might be less prudent’. Harris was a ﬁne-looking man and the empress was susceptible; this was personal diplomacy at its most intoxicating, yet in the end Harris returned to London having achieved but little and being the poorer in his own pocket by over 20,000 pounds”. The waning of boudoir diplomacy could not occur without the rise of constitutional monarchy and republicanism, but on matters of a routine nature the core of the 17th century system of European diplomacy was the resident ambassador, who still thought of himself as the personal representative of the sending sovereign. His daily tasks consisted mostly of the collection of information by whatever means came to hand, often through a process of barter that required the ambassador to be well informed about unreported events back home. Reporting home was a relatively frequent activity. In the interest of conﬁdentiality, sensitive parts of despatches were conveyed in cipher. Because of their representational status, envoys were still required to observe the ceremonial courtesies associated with monarchical precedence. Indeed a huge literature on diplomatic protocol was produced in the 17th century: 33 such works in the second quarter, 61 in the third, and 77 in the fourth (Anderson, 1993). There was also a general sense of the tradition of diplomatic immunity, through many legal issues remained. This literature is tiresome to the modern reader, but it reﬂected a trend toward the view that the ideal ambassador should be honest (Martin, 1993).

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By the mid-17th century it was becoming unusual to grant the right of legation to non-sovereign entities such as cities. Even the right of the Dutch East India Company, a quasi-sovereign institution, to send its own representatives to negotiate with European power was beginning to be regarded as a hangover from the past. By the early 18th century it was widely recognized that the only real diplomacy was that of sovereign states (Smith, 1993). Through the 18th century, many countries, especially in Europe, began the practice of maintaining a separate ministry concerned exclusively with the conduct of relations with foreign countries. We see the birth of the modern idea that diplomacy is a branch of bureaucracy, a specialized sector of the civil service that operates in the public interest. Yet the notion persisted in Europe, even down to the failed diplomacy preceding the First World War, that diplomacy was, in some special way, identiﬁed with the person of the reigning monarch, and that the process of diplomatic communication might somehow become dysfunctional unless attended by strict regard for protocol. The monarchical factor in late 18th century European diplomacy might have presented diﬃculties for the ﬁrst diplomatic representatives of the American republic. This seems not to have crippled the ﬁrst three ambassadors of the United States in Paris: Benjamin Franklin, John Adams, and Thomas Jeﬀerson. Franklin was, of course, assured of social success: he was the most famous American to date, a great celebrity in his own right, wholly at ease with the rich and famous (Stourzh, 1969). Adams was not so well suited for such a task, and his wife Abigail, was distinctly uncomfortable among the looser ladies of Paris. But the Boston lawyer of humble origins was the representative of an extremely aristocratic president, who was patron of the bluest and most liberal of France’s young blue-bloods, Marquis de Lafayette (1757-1834). Jeﬀerson, who served in Paris up to the ﬁrst months of the Revolution, was as aristocratic as Washington and a man of culture and intellect (Unger, 2002). Like Franklin, he did not lose countenance to the lively wits of the great city (Rice, 1976). As to the foreign policy substance of European diplomacy between 1618 and 1815, widely diﬀerent views were held then, as indeed there still are. As Nicolson (1954) has observed, 17th century jurists such as Hugo Grotius were idealists who argued for principle in the conduct of foreign aﬀairs, based on the reasonable dictates of the law of nature. Others, focusing on the merit of expediency, saw diplomacy as a continuous process, not an ad hoc operation, designed only to serve the interest of the state: “above sentimental, ideological or doctrinal prejudices and aﬀections”. To those with the realist’s view of the world, diplomacy was an exercise in pragmatism. “If national interest demanded an alliance with an obnoxious, even with a heretic, State, then no feelings of what one liked or what one disliked should be permitted to blur that necessity. In moments of danger one should choose one’s allies not for their integrity or charm, but for their physical or even geographical value”. During the ancien regime period, two “realistic”, amoral approaches to international relations were in contention: balance of power versus national interest (raison d’etat). The ﬁrst was adopted when the principal consideration was to oﬀset the hegemonial ascendancy of a particular power or a dominant coalition (Clark, 1966). The purpose of the second was to secure the maximum advantage for one’s own country without

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consideration for others, unless their interests coincided with one’s own. Either could be invoked to justify a policy of naked expediency or an act of territorial acquisition. But because political adventurism was a general threat to international order, most power-holders recognized the value of diplomacy in order to create a network of treaty settlements and arrangements, provided it did not compromise the need for ﬂexibility in the management of foreign aﬀairs (Mirkine-Guetzevitch, 1928). None in the 17th century was more conspicuous or more successful in following the logic of enlightened expediency than Cardinal Richelieu. It was the age of secret diplomacy, which was often hard to distinguish from espionage, and usually involved resort to double-dealing (Thompson and Padover, 1937). Yet he was not a cynic or a scoundrel. Even in an age of secrecy, he believed in the importance of public information, albeit in the form of propaganda tailored to convince the reader of the rightness of the government’s policies. Moreover, he insisted on the importance of compliance with treaties signed and ratiﬁed. So in the drafting of important instruments, it was essential to give close attention to the clarity of wording, so as to leave as little scope as possible for “evasions or misunderstandings”. For this reason and others, Richelieu supported the need for a professional agency devoted to the direction of ambassadors and the making of treaties. So it was 17th century France that took the lead in developing the modern method of diplomacy down to 1918 and also in elevating the intellectual and linguistic style of diplomatic interaction (Roosen, 1976). The special characteristics of French diplomacy are due especially to Louis XIV. He did not approve of open diplomacy – diplomacy by conference – which was felt to be cumbersome and unnecessarily expensive, inclining negotiators “to consider their own prestige and to maintain the dignity, the interests and the arguments of their sovereigns with undue obstinacy”. Negotiation, he felt, involves the need for compromise, which is more likely to be the outcome of a small private discussion. The sun-king would have hated and resented the diplomacy of the 20th century. Admirers of the French tradition of diplomacy have pointed out the core of integrity insisted upon by Francois de Callieres (1645-1717), son of one of Louis XIV’s generals, who served as French ambassador in Germany, Poland and the Netherlands. In his famous manual, The Practice of Diplomacy (De la maniere de negocier avec les souverains) (1716), Callieres repudiated entirely the cynical view that the purpose of diplomacy was to deceive. On the contrary, he argued, sound diplomacy depends on the building of conﬁdence grounded in good faith. Diplomacy was likened to good banking. “An ambassador must base his success on straightforward and honest procedure; if he tries to win by subtlety or arrogance, he is deceiving himself ” (Nicolson, 1954). By this time, therefore, the classical tradition of oratory in diplomacy has been abandoned. It would not re-appear until the 20th century, when the new open conference style brought the rhetorician back, blinking, into the light. As Keens-Soper and Schweizer have observed, Callieres had little aptitude for the “bagatelles” of French diplomacy. While skilled in the conciliation of ruﬄed tempers at negotiating sessions, he was not part of the revelry: “the endless balls and receptions held in a spirit of splendid and extravagant rivalry where ministers vied to eclipse the trappings and regalia of their colleagues” (Callieres, (1983). Yet, it is good

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to know, he held the respect of serious contemporaries, even those as normally censorious as Louis de Rouvroy Saint-Simon. Rosecrance (1966) has observed that the French style of diplomacy, which was ascendant in the 18th century, was product of a moderate, cosmopolitan age before the rise of nationalism and the spilling over of ethnic sentiments. In the Europe of that era, princes and subjects traveled without restraint throughout the continent. There was a continual intermingling of ideas and mores within what was perceived to be a region of cultural unity by the “leaders of opinion”. Such persons were more likely to ﬁnd a commonality among members of their own class in a foreign country than with members of a diﬀerent class at home. In the period of the ancien regime, most intellectuals accepted with equanimity the phenomenon of a foreign-born ruler on their throne. National origin was not considered a matter of great concern in striving for the greater glory of the state. So the use of foreigners as ambassadors for one’s country elicited little political resentment, assuming loyalty to the religious or other cause seen to be at stake. It was the French who set the amoral tone of great-power diplomacy in the 17th and 18th century. Arguably, it was also the French who took the lead, at the end of the 18th century, in conﬁrming the rule of law in international relations at the state level. Before the French Revolution in 1789 a huge gap had opened up between the ideals of jurists (the “tower”) and the practices of monarchist governments (the “arena”). In the tower, the old vision of “juridical universalism” was still alive, but in practice treaty violations were frequent, almost the norm, whenever strict compliance interfered with a new version of national interest or reduced the party’s ﬂexibility in manipulating the balance of power to its own advantage. Between 1789 and 1802 the new French Republic entertained a number of declarations that renounced the use of force and invoked the ideals of the law of nations. Although they were not all adopted, these documents represented at least a serious political eﬀort to establish the concept of an “international juridical conscience” (Mirkine-Guetzevitch, 1928). However, French idealism was short-lived. The American Revolution had stirred the hearts of many but hopes that the republican Franco-American alliance would open up a new and nobler era in international diplomacy were not fulﬁlled (Stinchcombe, 1969). The United States proved just as committed to the search for commercial advantage as the European powers (Kaplan, 1972). Pragmatic considerations inﬂuenced the way that the US government played its hand in the 1812 War, and in the use of privateers. In France, Napoleon’s militaristic regime destroyed the possibility of enlightened French leadership in the early 19th century, leading to the return of monarchy and the normal expediency of imperial statecraft. The Instruments. By the late 17th century, international agreements had become the most familiar evidences and products of the diplomatic process. For the agents of the power-holders, the making of inter-state agreements was one of the chief functions of diplomacy, along with the acquisition of information about those countries of special interest to their government. It was, therefore, part of the ambassador’s responsibility to report back to the foreign oﬃce at home on factors that might aﬀect

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the receiving sovereign’s intentions of keeping (or “maintaining”) the treaty relationships between the two states. In the early 17th century Hugo Grotius and his immediate successors were obliged, in the face of the power and legitimacy of the sovereign state, to acknowledge the essential requirements of state consent in the law of nations. International law at that time was still conceptualized as a system of principles based on the “law of nature”, which was universal and immutable by deﬁnition. So, for Grotius, there was nothing strange in seeking out “ancient examples” of treaty-making and related state practices. Surrounded by the horrors of the Thirty Years’ War, the great Dutch jurist was prepared to accept classical antiquity, East and West, as reﬂecting “better times and better peoples” (Edwards, 1981). To the modern reader, however, the works of most writers of that period seem gravely deﬁcient in the empirical rigor that one now feels justiﬁed in demanding of an author relying upon the factual evidences of the past. Where is the evidence of a long evolution of legal principles in and around the treaty commitments accepted by rulers down the ages? Three points should be made about the role of treaties in the law of nations of the 17th and 18th centuries. First, because of the secrecy inherent in the personal diplomacy that prevailed in that era, reliable information about recent treaties was extremely limited. For his own political purposes, Richelieu found it expedient, rather than morally imperative, to keep the French people informed about the issues of foreign policy and the reasons for their sovereign’s treaty alliances and other initiatives. The cardinal’s pamphlets were designed as an exercise in persuasion for the general public, whose approval was useful. They were not intended to provide a clear and detailed record for the beneﬁt of the scholarly community, which has always harbored potentially dangerous critics of the status quo. Most treaties at that time were political in nature, devoted to “demonstrative” purposes such as friendship, alliance, war, peace, and neutrality. They were, very often, the products of intrigue. They were not built to withstand the kind of critical scrutiny that we have demanded of international agreements since the late 19th century. Grotius could not possess the research tools of modern research. By default, he had to build up a system of rules based largely on ancient and distant practices, on customs to which states could be said to have granted consent through acquiescence, the conceptual machinery of implied consent; and, of course, on philosophically derived principles associated with the law of nature. Second, those early 18th century jurists who were prepared to give primacy to state consent – that is, the positivists – were increasingly drawn into the position that the most fundamental principle of all in the law of nations was that agreements concluded in good faith must be observed (pacta sunt servanda). But, stated so baldly, the principle of treaty inviolability bristles with diﬃculties (Taube, 1930). Treaties are often the products of particular circumstances that change, sometimes drastically, over the course of time. A rule insisting on strict compliance with every instrument, regardless of its nature and purposes, would be found to be an “idiot’s rule” (Franck, 1990). A legal system based on such a shaky foundation (grundnorm) would be seen to be conceptually fragile, requiring major qualiﬁcations. Remedy must be provided in a complementary rule that the basic principle must yield to common sense based

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on reasonableness: treaty obligation may cease to apply when the circumstances on which it rests are fundamentally changed. This qualiﬁcation means that every treaty has a tacit condition that its obligatory force depends on the key circumstances remaining the same (rebus sic stantibus). The two principles in combination seem sensible, but the application of the second is vulnerable to subjective interpretation and removes certainty from the normative sweep of the ﬁrst, damaging its claim to ethical ascendancy. The idiot’s rule is replaced by a “sophist’s rule”. To be reasonable and realistic, international jurists, like other lawyers, are driven into sophistry. Third, the emphasis on treaties and other forms of consensual “state practice” demanded by the logic of state sovereignty carried a new intellectual responsibility into the international law community of the 18th century: the obligation to develop a method of empirical inquiry. The new burden consisted of a series of diﬃcult questions that could not be addressed by invoking general principles. What was the historical record of treaty-making down the ages? How were treaties negotiated, to what eﬀect, with what consequences? What was the record of compliance? What inﬂuence did they have subsequently on the behavior of the parties? Could “personal” treaties negotiated between sovereign monarchs, in the manner of private domestic contracts, be convertible into “real” treaties, which would bind the contracting sovereign’s heirs and successors in the name of the continuous state? Gentile and Grotius favored the evolution of real, state-oriented, treaties, but the de-personiﬁcation of treaty-making was not easily or swiftly eﬀected in the age of absolute monarchs. This would be the work of the 19th century. However, the ﬁrst step in that direction was taken in the early 18th century, when a succession of scholars took up the laborious task of compiling private collections of treaty data. The ﬁrst of these was the French scholar Jean Dumont (1666-1726), a pamphleteering critic of Louis XIV’s absolutist regime, who had been obliged to take up residence in the United Provinces of the Netherlands before undertaking his prodigious project. His eight-volume collection of documents, published between 1726 and 1731, contained over 10,000 treaty texts and extracts over the period from 800AD, the accession of Charlemagne, down to 1730. Dumont planned to go back even further “to the point in time where history could ﬁrst be distinguished from legend in order to represent a more complete picture of the creation and development of norms governing … politically organized civilized groups” (Toscano, 1966). The challenge of extending the compilation back to antiquity was taken up after Dumont’s death by another French scholar, the jurist Jean Barbeyrac (1674-1744), who was best known in his lifetime as the editor of Samuel Pufendorf ’s famous work On the Law of Nature and the Law of Nations (De Jure Natural et Gentium) (1672). Even this great jurist, however, had to concede the virtual impossibility of making a complete and accurate record of treaties and treaty-like documents of the pre-Carolingian period. To the diﬃculties of incompleteness was added the problem of unreliability due to the number of forgeries among supposedly crucial sources upon which generations of historians were induced to rely, and were thus drawn into error (Johnston, 1997). Yet the universalist vision of Grotius and the conscientiousness of Dumont and Barbeyrac did lead to an impressive tradition of comprehensive treaty data collection;

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which has been one of the most underappreciated modes of research in the international law community. Scholars such as Jean-Jacques Chiﬄet, Friedrich August Wilhelm Wenck, and Georg Friendrich Von Martens were among those who produced private treaty collections into the 19th century. Thereafter, the task would be taken up by government agencies in the form of national treaty series, and eventually by the League of Nations and the United Nations. The very long history of treaty-making revealed by such research has strengthened the claim of international lawyers that certain elements of the law of nations have their origin in ancient history, with Asian and Eurasian as well as European roots (Alexandrowicz, 1967). If international law can be shown to have evolved out of several diﬀerent systems of civilization, hopes for the future development of a truly universal “world law” are justiﬁed, and fears about a future clash of civilizations might even be abated (Huntington, 1997). The Apologists. Throughout the 17th and 18th centuries, jurists were still at sixes and sevens over the nature, source, and scope of the law of nations. Many had the same diﬃculty as their predecessors in envisaging the ﬁeld as a discrete domain, distinct from the realms of the civil and canon law. Indeed to most it was appealing to think of all advanced legal systems as drawing upon the same sweet wellspring, however characterized: reason, reasonableness, divine will, natural justice, or the law of nature. Whatever the transempirical reference, the idea behind such doctrine was that all law, to be respected and observed, must be seen to serve the highest purpose. As we have seen, the naturalists remained vigorous through the 18th century, shaping the works of most of the prominent international jurists, including Vattel. However, at the time when absolute monarchism was at its height on the continent of Europe, the rise of state sovereignty introduced the need to deal with the reality of power-holding, both at the national and international level. Increasingly, it was felt necessary to give appropriate emphasis to the fact that law was essentially the product of legitimate temporal authority. At the international level, such reasoning created the premise that the law of nations was nothing more nor less than what had been consented to by sovereign states. This, the positivist view of the law of nations, grew rather gradually, competing for over two centuries with the natural law school, until it ﬁnally attained dominance in the mid-19th century. At ﬁrst, elements of both philosophies appeared in the same works, living cheek by jowl, introducing confusion. Even today, opinions diﬀer on who should be marked out as the early positivists. It may be suﬃcient to mention four possible candidates. Arguably, one of the earliest was Samuel Rachel (1628-1691), son of a German Lutheran pastor in Holstein. When he was nine, his father died, and throughout his youth his mother had barely the means of survival, due in part to the occupation of Holstein by the Swedish army. Samuel had to endure a school with the characteristics of a penitentiary, rather like the Dotheboys Hall imposed on David Copperﬁeld. Yet Rachel did well in his studies and eventually advanced over adversity to the chair in the Law of Nature and of Nations at the University of Kiel. In later life he was ap-

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pointed to a diplomatic position – a reversal of the usual progression of an international jurist at that time. For Rachel, the law of nations was an amalgam of customs and treaties. This involved repudiation of the view of Grotius and numerous other predecessors that the law of nations (ius gentium) was essentially an aspect of the law of nature (ius naturale). Customs were conceived as “tacit” agreements, binding on the international community by reason of the consent presumed to have been accorded to them. Like many of his contemporaries, he considered the Peace of Westphalia to consist of basic law-making instruments, pointing the way to the future development of the law of nations. In positivist vein, he relegated certain diplomatic courtesies to a lower level of “authority”, which later writers were to characterize as “comity” rather than “law”. Much of the law of war was treated separately by Rachel as part of the distinct domain of the law of nature, and issues such as just cause and moderation in the conduct of hostilities were regarded as matters of conscience. Indeed he recommended the removal of just-war doctrine from the law of nations proper. In the conduct of war, Rachel suggested a distinction between what is lawful and what is honorable. For the son of the pastor, who witnessed the atrocities of the Thirty Years’ War at ﬁrst hand in his childhood, it was still lawful, as Ludwig von Bar has noted – but presumably not honorable – “to put to death children and women and those who were willing to surrender, but not those who have been already taken prisoners; and, says he, in the judgment of the better writers, it is also unlawful to use poison” (Rachel, 1916). We might describe Rachel as a minimalist on the ethical function of international law – a questionable entrée into the realm of legal positivism. A weightier name in the history of international law is the Dutchman Cornelis van Bynkershoek (1673-1743). He was born the son of a sail maker in the maritime province of Zeeland. Unlike most who established reputations in that ﬁeld, Bynkershoek became a practicing lawyer, and then a judge. Eventually he was elevated to the oﬃce of Chief Justice of the Supreme Court of Holland, Zeeland and West Friesland at The Hague, which he occupied during the last 19 years of his life. Like Gentili and others before him, he was ﬁrst attracted to the law of nations by technical legal issues arising from an actual case on diplomatic immunity. Although he retained an interest in theology, which he had studied at university, his works on international law are entirely secular in content, and he virtually ignored the traditional overlap with the law of nature. Scholastic dogma was eschewed. In sensible judicial mode, he did not shrink from the use of common sense to supplement legal sources, which he found to reside in treaties and precedents ﬁrmly established in the form of international custom. Ancient law was not frequently invoked, and, even then, only that ancient law most venerated by a Roman-Dutch civilian: the Corpus juris civilis of Justinian. Bynkershoek appears the most modern of the international jurists of the early 18th century. His use of sources – what he employed and what he ignored – would have passed muster in the late 19th century. His prose is unusually lucid for an age still startlingly tolerant of discursiveness. His combative style of delivery may seem refreshingly personal within a judicial tradition that was becoming increasingly detached in tone (Nussbaum, 1954). As a Dutchman keenly aware of the importance of maritime commerce, he had much to say on such matters as neutrality, blockade,

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and the niceties of prize law, and, as we shall see, he made a major contribution to the issues of maritime jurisdiction. On the law of treaties, he deplored the eﬀort by others to weaken the force of pacta sunt servanda by reference to the sophist’s device of rebus sic stantibus (Bynkershoek, 1930). Johann Jakob Moser (1701-1785) came out of a politically active family in Stuttgart. Talented and versatile, he was able to combine a lifelong career in scholarship with a variety of political, religious and educational appointments and projects. As Councillor of the Wurttemberg Estates, he incurred the enmity of the Duke of Wurttemberg, who had him imprisoned for his public criticism of the Duke’s despotic rule. As Nussbaum (1954) notes, Moser’s pietistic faith endowed him with exceptional fortitude in enduring the deprivations sustained throughout his incarceration. Eventually he was freed, reluctantly, by the vengeful duke after the exertion of great pressure by Frederick the Great, who shared the German people’s outrage at the mistreatment of this man – perhaps one of the nobles ﬁgures in the story of international law. As a positivist, Moser was quite explicit in downgrading the law of nature, which he found much too vague to justify a central place in the evolving law of nations. Like Bynkershoek, he concentrated on the accumulation of customs and treaties. His 12volume work on the law of nations, published between 1777 and 1780, pulls together a great number of texts – treaties, declarations, reports, and diplomatic letters – with a view to demonstrating the true subject of international law through its “material” sources. In many respects, this work resembles a modern “casebook” of materials used for classroom purposes, but sadly lacking a ﬁrm editorial hand, and of course still lacking the authoritative imprint of judicial decisions. Moser’s age was an era that elevated the art of producing comprehensive collections of documents, inﬂuenced perhaps by the British empiricists’ demand for evidence in support of propositions. But the modern reader of Moser aches wearily for synthesis of the ideas buried in the detail. The last of the four early, “pre-scientiﬁc”, positivists deserving of special mention is another German, but one who had an early social advantage over most jurists of that pre-Napoleonic era. Georg Friedrich von Martens (1756-1821) was born, close to the outbreak of the Seven Years’ War, to a wealthy, upper-class, Hamburg family. With minimal diﬃculties, he built a successful career. First, he excelled in his studies at the University of Gottingen, and then advanced rapidly in the law faculty to the position of Dean, and eventually to the Chancellorship of the University. Despite the titles pressed upon him and the acquisition of a wealthy widow for his wife, Martens earned something of a controversial reputation through a series of erratic political alignments in the kingdoms of Hanover and Westphalia. Characteristically, he landed on his feet, serving after 1815 as Hanover’s envoy to the German Bundestag, which had been formed to maintain the system of separate German principalities in the face of the rising popular cause of nationalism and uniﬁcation. Rather in the manner of his predecessors Vattel and Moser, von Martens envisaged international law in practical terms as the normative framework for the day-to-day management of inter-state relations. Like Moser, who had established a school for the training of diplomats, he developed courses in international law for young men aspiring to a diplomatic career. Insisting on the need to separate the law of nations entirely

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from its natural law heritage, he was obliged by his own logic to take a particularistic view of international positive law anchored in empirically discoverable treaties and customs. In consequence, given the scarcity of exotic documentary sources as evidences of consent, he found it necessary to deny the existence of a universal positive law of nations. His frame of reference was limited to a positive law of nations binding at least on the sovereign states of Europe, but it is possible to interpret his references to the “semi-sovereign” entities of the continent as acknowledgment of their eligibility. He seems, moreover, to have extended the reach of the law of nations to the United States, since he includes the 1776 US Declaration of Independence in the list of treaties attached to his Compendium of the Law of Nations, as well as the 1778 Treaty of Commerce and Friendship between the United States and France and its 1783 counterpart between Sweden and the United State. Admittedly, this list of treaties is generously construed, including instruments concluded by entities to which Martens is not willing to concede the status of full sovereignty, such as the Dutch and British East India Companies and the Nawab of Arcot, and also political instruments such as the 1781 capitulation of General Cornwallis to General Washington and President Jeﬀerson’s 1801 address to both Houses of Congress (Martens, 1802). It is not clear whether Martens admitted Turkey to the family of nations, since it stubbornly remained outside the pale of the Christian West. Von Martens was in the secular line of positivists, closer to Bynkershoek than to Rachel and Moser in excluding religious considerations in his occasional references to the law of nature. In appearing to minimize the factor of morality in the law of nations, he reﬂected the contemporary Kantian determination to separate law from morality, weakening the concept of international justice and preparing the way for the generally amoral approach to international law that overcame the naturalists’ resistance in the 19th century. As much as Bynkershoek, von Martens envisaged an international legal system that would be developed and controlled professionally by legal technicians, shorn of religion and morality in the old Roman fashion, bidding for the status and prestige of a science capable of demonstration and validation. Greater technical precision was the chief beneﬁt of the new positivist orientation in the law of nations near the end of the 18th century. Positivism made it possible for international law to become “professionalized”. But the consensualist framework was to limit the potentiality for moral development within the ﬁeld. The trend to statist amoralism, deﬂecting attention from considerations of human welfare, was set in notion in the later stages of the Enlightenment, owing more to the ethos of imperial power-holding and colonial possession. Within an ethos so conspicuously tolerant of national interest and raison d’etat, it was inevitable that international lawyers would eventually fall under suspicion as conscious or subconscious apologists for their government, country, or culture. Idealists wishing to be clear of that charge would have to distance themselves from the new mainstream at the risk of denigration as utopianists. Reﬂections. It is quite clear that by 1815, under European imperial direction, the “world community” of that era had inherited a new kind of “arena” for the conduct of

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inter-state relations. By reducing international aﬀairs to matters of state interest, the positivists of the international law community were opting for an ethically restrictive sort of legal system that was not entirely compatible with the human welfare ethic propounded by the philosophes and literati battling for the high ground. By accepting the descent of the positivist, wholly consensualist, frame of reference, the new intellectuals were settling for the lower slopes. Today, legal idealists in the “tower” – usually, but not always, occupied by academics and NGO advocates – see the “arena” in these terms, controlled by power-holders, agents and apologists reﬂecting at best the late 18th century value of enlightened self-interest. Today, more than ever before, idealists and realists engage in civilized verbal warfare over the words to be incorporated into treaty instruments. As we shall see, treaty-making in the 19th century would be mostly a bilateral process, encouraging jurists to accept an analogy between treaties and private bilateral contracts. To see the longer-term consequences of treaty-making around 1815 we have to focus on the new emergence of congresses and their generation of multilateral commitments, which would prepare the ground for the 20th century development of a global system of general law-making conventions. China’s View of the Outside World The Myth of the Middle Kingdom. Of all existing cultures, the Chinese has by far the longest tradition of political unity. The emperor was not the ruler of any one state, within a system of many, but the mediator between heaven and earth: “a cardinal point in the universal continuum, the apex of civilization, unique in the universe … a ﬁgure of cosmic dimensions … In the annual fertility rite he plowed the sacred farrow not so that Chinese crops could grow up but so that crops per se could grow” (Mancall, 1968). In earliest times China’s rulers and advisers were unaware of civilizations elsewhere. They wee at the center of their own known universe, rather like the ancient Greeks and Romans. After all, the Chinese had given much to the world: the wheelbarrow, the crossbow, the magnetic compass, paper, porcelain, and the decorative kite (Franke, 1967). The notion of Chinese exceptionalism was so strongly imbued within the culture that China itself was called the “Middle Kingdom” (chung-kuo), and it still is. This centrality was prescribed in heaven, whose mandate extended to “all under heaven” (t’ien-hsia). The emperor’s realm came to be understood as the entire “Chinese world”: that is, the macro-region within the range of Chinese cultural inﬂuence. China was a “cultural empire” rather than a state. Such a self-conﬁdent tradition of ethnic superiority has given Chinese elites down the ages a psycho-cultural sense of self-worth that may be unequalled elsewhere, except possibly in France, Britain and America. Governmental protestations in Beijing that the Chinese have much to learn from the West are a modern phenomenon attributable to strategic, “catch-up” considerations, not to any genuine conversion to humility on the part of the Han people. Ideas of foreign origin in China tend to be suspect. So Chinese respect for modern international law has had to be earned. It is in the interest of other nations today to understand the Chinese view of their own

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place in world (Fitzgerald, 1964). Debates on the continuity of Chinese history continue (Schwartz, 1968). The idea of inherent Chinese superiority is invariably characterized as a cultural “myth” – especially outside China. But certainly up to the end of the Chou period (c. 1122-256 B.C.) it corresponded entirely with the facts of world history (Wang, 1968). Scholars everywhere have, admittedly, had diﬃculty in agreeing on what constitutes “civilization”, and the ancient Greek and Roman contributions have compelled a degree of admiration. But most Western historians are generous enough to concede the supremacy of Chinese culture since then down to the late 13th century. No system of feudal civilization elsewhere could be said to compare with the magniﬁcence of the Sung dynasty (960-1279), the age of China’s Renaissance. The luster of that golden age diminished in the centuries that followed. In the north, the Jurchen, and then the Mongols who conquered them, acquired the new weapons that had enabled the Han Chinese to keep them at bay. Military supremacy fell to the mighty Mongolian warrior, Genghis Khan (1167 – 1227), making it possible for his grandson, Kublai Khan (1215-1294), to become the founder of the Yuan dynasty of China (1279-1368) (Weatherford, 2004). The citizens of the Middle Kingdom had never before been ruled by a barbarian in their midst. Yet the Great Khan was certainly one of the greatest rulers in Chinese history. In many respects, Kublai Khan displayed a magnanimity unsurpassed by any of his Chinese imperial predecessors, certainly a greater curiosity about the outside world, and an extraordinary willingness to tolerate diversity of beliefs and cultural traditions. Although the Great Khan’s successors, including his grandson Timur (Tamerlane or Ch’eng-tsung) (1336-1405), failed to match their founding father’s civic benevolence, it was their continuation of the Mongol presence in China that signaled the beginning of insupportable strains on the Chinese exceptionalist tradition. Despite the resurgence of the Han Chinese during the Ming dynasty (1368-1644) – a period of “bright” hopes returning – the myth of the Middle Kingdom had been exposed. China’s growing vulnerability to the outside world, especially Europe, was now a fact of imperial Chinese life (Whyte, 1927). Questions. How then did the self-conﬁdent Chinese respond to the encroachments of the outside world in the 17th and 18th centuries? How did they reconcile their own conviction of Chinese exceptionalism with the painful facts of Western power, wealth, and technical sophistication? How diﬃcult was it for the Chinese emperor and his advisers to sort out the gradations among the “barbarians” now gathering at the gates? What techniques were available to hold the outsiders back? Was the law of nations a factor in the statecraft of the early Ch’ing? The Tribute System. Within the Chinese “cultural empire”, the emperor’s relations with non-Chinese “barbarian” neighbors and near-neighbors were conducted through a combination of militant and paciﬁc policies. At least it seems so in retrospect, but for long periods during the Sung dynasty there was no commentary by Chinese writers on such matters, and because of the humiliation of the previous Mongol rule, there was little disposition to discuss the need for a “foreign policy” throughout the

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subsequent Ming period. In practice, however, it appears that the Ming passed on to their Ch’ing successors (1644-1910) a willingness to deal ﬂexibly with foreigners until the inexorable nature of Western imperialism in the 19th century resulted in a ﬁnal display of Chinese chauvinistic resistance to the encroachments of the international community (Wang, 1968). Most, but not all, of the countries around the Chinese border were deemed to be within the Chinese system of civilization. As such, they were considered to be vassals and expected to pay tribute through gifts and displays of deference to the emperor on the occasion of visits to the Chinese capital. Tribute was the appropriate ritual for visitors to acknowledge the world order. Scholars specializing in the ﬁeld have warned western readers not to impose their own cultural concepts and assumptions on traditional Chinese diplomatic history. For example, there is no Chinese-language term that corresponds to “tribute system”: it is a Western construct. The tributary tradition oﬀers no comparison with the emerging European system of diplomatic relations. The idea of a right to exchange diplomatic agents (the “right of legation”) simply did not exist in China; it was wholly alien to the Chinese view of the world. And the concept of ambassadorial immunity was as culturally inconceivable as that of state equality. An ambassador was simply a messenger carrying his master’s letters (Mancall, 1968). Indeed, there is surprisingly little Chinese documentation in the 17th and 18th centuries to support or dispute later theories about the diﬀering signiﬁcance of “inner” and “outer” zones within the Chinese world. There is certainly no evidence that the Chinese authorities entertained the notion of territorial sovereignty. Although they recognized certain linear boundaries and zonal frontiers at the periphery of the Chinese homeland, sometimes negotiated and sometimes not, it is distortive to describe the Chinese perception of their “empire” as consisting of “states” in the Western sense. It also seems an oversimpliﬁcation to bundle all the tributary entities together as “vassals” of the empire (Yang, 1968). Unﬂattering Chinese Confucianist references to foreigners as animals have encouraged modern scholars to develop theories such as those suggesting appeasement through a “loose rein” policy based on the analogy with cattle, and a more carefully calculated reward-punishment (“bone and stick”) policy based on the analogy with dogs. It may be best to preserve the simple idea that the Chinese rulers of the Middle Kingdom played their hand according to the contingencies that presented themselves. Beneath the veneer of courtesy displayed at the presentation of tribute by the representatives of foreign rulers in Beijing, there was certainly an assumption, rarely made explicit, that it was appropriate for neighboring rulers, and possibly others, to acknowledge the divine source of their legitimacy within the Chinese cultural world. It was more a matter of shared cultural sensitivity than a matter of legal or political obligation. The Chinese did not lust after the material or cultural assets of the outside world. They were not interested in going out to trade. Traditionally, the Chinese mandarins despised their own merchants. If foreigners wished to come to the Middle Kingdom for its silks and spices, it was certainly not because of any “right to trade”. Permission would be granted to foreigners to engage in such trade at speciﬁed times and places, provided they acknowledged the courtesies that had to be observed.

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As early as 1530 Canton was opened as a permanent place for foreign trade on Chinese soil. The Portuguese, who were then the most aggressive European merchant-adventurers in Asia, were excluded from Canton because of their bad behavior on earlier occasions, including their conquest of Malacca, a vassal state that paid tribute to China. The Portuguese were allowed instead to establish a trading post at Macao, perhaps because they were more easily controlled there, and conceivably also because they had been deemed useful in suppressing pirates along that troubled sector of the Chinese coastline. Whether in Canton or Macao, foreign traders were left to administer their own aﬀairs, possible as an expression of contempt for barbarians, who were incapable of understanding the civilized customs and laws of the host society (Franke, 1967). Despite the close relationship between tribute and trade, the need for the former as a precondition of the latter was often waived. Border trade, involving mostly local non-luxury goods, had been accepted as normal for a long time, and Arab and Persian traders had been a familiar presence in China since classical antiquity. Indeed the long-distance trade between the ancient Roman and Chinese empires was sustained mainly through Middle Eastern intermediaries. The Treaty of Nerchinsk. Western readers are likely to think of China’s early relationship with the international community as an unwanted maritime trade aﬀair with Europe, or as a succession of border encounters with small states that acknowledged their tributary or vassal status. But China had also a long history of relations with Japan and Korea through Buddhist penetration further east, trade interests, and piracy concerns. Even more important, from a world history perspective, was the early Ch’ing relationship with Russia. Long before the establishment of China’s ﬁnal imperial dynasty (1644-1912), the predecessor Ming government had become increasingly nervous about the expansion of czarist control over the Inner Asian landmass. Between 1579 and 1584, formidable bands of mounted Cossacks, armed with guns, opened Siberia to Russian exploration and settlement. After Yermak and his raiders reached the Ob River around 1580, the Russians had laid down a network of communications and fortiﬁcations throughout most of Siberia. By 1632 an outpost was established at Yakutsk on the upper reaches of the Lena, and ﬁve years later the Czar’s men had arrived at the coastal lands on the Sea of Okhotsk (Mancall, 1971). The pickings were slim. Food was scarce, and fur was about the only tradable commodity that could be extracted from their contacts with the Mongol, Tungusis, and other local tribes. Soon the market price for Siberian furs would drop in the face of North American competition. By default, the Amur watershed became the principal target of Russian marauders such as Erofei Pavlovich Khabarov and Onufry Stepanov. Further raids resulted in the founding of Nerchinsk in 1656, situated on the banks of the Shilka, the main tributary of the Amur (Hsu, 1926). Alarmed by the permanent presence of Cossacks in their midst, the local tribes of Northern Manchuria appealed to their overlords, who had taken over Beijing and established the Ch’ing dynasty. The new rulers of China were not immediately well positioned to snuﬀ out the Cossacks in the north. Disorders elsewhere had to be put down. Moreover, it was

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not just a military problem. Some of the indigenous people now exposed to Russian rule saw this situation as an opportunity to cooperate with Moscow, a more distant and less threatening power, in the hope of securing a less constrained existence. The Ch’ing hold over the Mongols and the Turkus was precarious. As early as 1619, near the end of the Ming dynasty, an informal Russian mission had arrived in Beijing to review the state of Sino-Russian relations. They omitted to bring tribute and were rejected as the worst kind of barbarians. A more formal Russian attempt to establish diplomatic relations with the Ch’ing emperor was made in 1654, but Ambassador Fedor Isakovich Baykov encountered the same wall of cultural resistance that would thwart Lord Macartney 139 years later. “The Russian envoy’s stubborn demand for the European type of inter-state equality threatened the ideological basis of Ch’ing power over East Asia, and he was sent away without being received at court” (Fairbank, Reischauer, and Craig, 1865). A later Russian envoy in 1676 was spared the full kowtow humiliation, but was unable to accept the Chinese compromise because it involved kneeling before the emperor. In retaliation, Emperor K’ang-hsi decreed that all future transactions with barbarians must be in the tributary form. Bluster did not prevail. The Ch’ing’s struggles with the Western Mongols induced the emperor in 1686 to send envoys to Nerchinsk in response to a Russian proposal for a treaty. The Manchu co-leaders of the Chinese delegation were Songotu and T’ung Kuo-kang, both elderly relatives of K’ang-hsi. The Russian leader was a 35-year old ambassador, Fedor Alekseevich Golovin. Both sides arrived with a large retinue of soldiers, advisers, and entertainers. The outcome of negotiations was a formal multi-purpose agreement, which was the ﬁrst international instrument accepted by China on the basis of equality between the parties. The Russians agreed to withdraw from the Amur watershed; a boundary in Northern Manchuria was delineated, though not as far west as the frontier between Mongolia and Siberia; approval was given to trade and travel for the bearers of passport; and an arrangement was made for future exchanges of criminal fugitives. Both parties were later to claim credit for the Treaty of Nerchinsk as an important foreign policy initiative in East Asia, but in truth the Chinese won most beneﬁt from the compromise diplomacy. This historic treaty was sophisticated enough to gratify the fussiest of modern functionalists. It was an important step forward in the “distributive” sector of trade relations, in the “administrative” domains of passport control and extradition, in the “resolutive” context of boundary settlement, and apparently even in the “demonstrative” matter of friendship display (Johnston, 1999). Most important of all, goodwill was demonstrated in the agreement to ignore the ill will of the past in future negotiations. The relationship between the Treaty of Nerchinsk might remain fragile, but the agreement itself was an impressive entrée into the modern world of treaty-making. As the Chinese themselves were aware, negotiation in the barbarian mode had brought them more beneﬁts than they could have derived from the use of force (Mancall, 1971). Perhaps after all there was something to be said for modern interstate diplomacy. Satisfaction on both sides led to another Sino-Russian treaty in 1728 at Kiakhta on the Siberian-Mongolian border. This time the entire boundary between

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Russia and the Chinese Empire was ﬁnally delineated, so that Russia was legally excluded from Mongolian territory, and numerous new cross-border regulations were agreed upon. Punishments were prescribed for various crimes. For example, Russian soldiers who deserted to the other side would be handed back for hanging; Chinese oﬀenders would be returned for strangling “according to the laws of justice”. Cultural diﬀerences were to be respected. Arguably the beneﬁts of Nerchinsk and Kiakhta were suﬃciently obvious to persuade the Ch’ing authorities to keep their minds open on the merits of European inter-state diplomacy and international law as an alternative to the traditional tributary system. Despite continuing rhetoric in favor of the old ways, the trend in Ch’ing practice was to approach the administration of border relations increasingly in a modern way, “guided by the principles of territoriality, sovereign equality, and reciprocity” (Edwards, 1987). By the mid-18th century the Ch’ing Code had incorporated the rule of equal treatment for both aliens and national minorities in China. In non-homicide cases of criminal law, China was prepared to yield jurisdiction to the state of the accused, provided the latter was prepared to accept the principle of reciprocity. The Jesuit Interlude. Not the least of the reasons for China’s success at Nerchinsk was the presence of two Jesuit missionaries as interpreters and advisers on the imperial staﬀ: Pereyra of Portugal and Gerbillon of France. It appears that the two foreign priests played a crucial role as shrewd bargainers on the Chinese emperor’s behalf. Moreover, they drafted copies of the treaty in Latin, which was accepted as oﬃcial, though copies were also made in Chinese, Russian, Manchu and Mongolian. It may be recalled that the Jesuits had ﬁrst attempted to establish themselves as missionaries in China during the ﬁnal decades of the Ming dynasty. Their success in gaining approval and respect was due almost entirely to one man, an impressively vigorous, handsome and hugely talented Italian, Matteo Ricci (1552-1610). Ricci’s future greatness could not have been foreseen when he was assigned to China in 1582, but he was already respected within the Jesuit order for his erudition and brilliance. Immersed in theology and law, like so many other scholars of the time, Ricci was also gifted in mathematics and fascinated by mnemonics, the art of memory (Spence, 1984). Moreover, he was also a man of exquisite tact, patience and perseverance: a model diplomatist. Once settled in China, he set himself the task of self-transformation into a Confucian scholar under the name of Li Ma-tou. That he succeeded in this nearly impossible undertaking earned him immeasurable prestige among the astonished mandarins and in the eyes of the emperor himself. In short, he set a standard of personal excellence that transcended cultural barriers and set a diﬃcult challenge for the lesser mortals who would be called upon later to ﬁll his shoes. Ricci’s aim was to bring China into the Catholic Church, and his strategy was to concentrate ﬁrst on the intellectual elite. If this were successful, the rest of Confucianist China would surely follow. To have a chance of progress he realized the necessity of adapting Christian teachings through subtle accommodations with the Confucianist ethic and less subtle critiques of Buddhist and Taoist theistic beliefs that oﬀered more direct competition with Catholic theology (Gernet, 1985).

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Although Ricci never succeeded in converting the mandarins of China, he was so revered within the traditional framework of Confucianist thought and behavior that other gifted Jesuits were allowed to follow. Their knowledge was admitted to be of practical value to the emperor’s advisers, including their knowledge of Western languages, culture and diplomatic strategy, as well as of mathematics and astronomy. Scholars still debate what degree of unacknowledged inﬂuence the Jesuits of the 18th century had on Chinese intellectual history. At least, most agree, the compromises at Nerchinsk could have been made without the services of Pereyra and Gerbillon. Among the Jesuits who followed Ricci to China, perhaps the most illustrious was Johannes Adam Schall von Bell (1591-1666). Perhaps even more than the saintly Ricci, Adam Schall deserves posterity’s recognition as the Jesuit who proved the practical value of “Western knowledge”. As a trained astronomer, he was able to predict eclipses more accurately than the Chinese astronomers. Prediction of heavenly phenomena was a treasured gift in a culture that believed that they had a direct eﬀect on the pattern of human aﬀairs. Scholars today diﬀer on the question whether the Jesuits retarded astronomical research in China by reason of their Church’s opposition to the heliotropic doctrine of Coppernicus, which was actually closer to the Chinese conception of the universe (Franke, 1967)! Schall’s inﬂuence on the Chinese community of astronomers was enormous after his imperial appointment as director of the Department of Astronomy in 1661. Indeed most of his colleagues were converted to Christianity. The inﬂuence of the Jesuit mission at Beijing reached its highest point in the middle years of K’ang-hsi’s long reign (1662-1722), at a time when the mission was headed by the Belgian Jesuit Ferdinand Verbiest (1623-1688), between 1669 and his death in 1688. By then there were over 100 Jesuit missionaries in China, in almost every province, and the senior Jesuit advisers had direct access to the emperor on virtually a daily basis. By 1700 there were well over 200,000 Christians in China. Thereafter the ratio of 1:1,000 of Christians against the whole population remained fairly constant. But in the 18th century Christian conversion strategy was reversed, concentrating on the uneducated and superstitious classes rather than on the intellectual elite. This approach was considered more of a threat to the established order. Moreover, as in Japan, Jesuit inﬂuence declined with the arrival of other Catholic orders less committed to the need for selﬂess sinicization, and of diplomats seen to represent expansionist policies of European power-holders. The “Jesuit interlude” had not been easy, but in the following period, devoted to treaty-making and permanent diplomatic intercourse, an even rougher road had to be traveled. The Chinese were not yet ready to be part of a larger, expanding universe. The Macartney Embarrassment. China’s continuing discomfort with the alien concept of formal diplomacy was famously demonstrated in 1793. The British had been attempting to conduct trade throughout the 17th century, since the East India Company had become established in Canton, but conditions were never easy. Under the Emperor Ch’ien-lung (1736-1796) the Ch’ing authorities both in Beijing and Canton seemed to compete with one another in the devising of obstructive regulations.

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To lighten the burden, Prime Minister William Pitt (Pitt the Elder) conceived the notion of sending an oﬃcial delegation to the emperor. Lord George Macartney arrived in the presumptive capacity as the ﬁrst British ambassador to China. In London it was hoped that this diplomatic initiative might serve to place Anglo-Chinese relations on a ﬁrmer foundation of reciprocity, preferably by means of a formal commercial treaty. The British government had reason to be envious of the treaty-based Russian détente with China. The maritime trade with China at that time was growing rapidly. Between 1662 and 1762 the Chinese government had received at least 216 missions from abroad. In the decades that followed, the number of such commercial visits would increase more rapidly than that of traditional tribute missions. The British initiative was conceived by the East India Company, but had the personal endorsement of the Prime Minister. The mission might be described as de facto governmental in purpose, and reﬂected accurately the emerging pattern of formal commercial relations on the European model (Fairbank, Reischauer, and Craig, 1965). Yet, within the context of Chinese history, the enterprise was still premature. As Cranmer-Bying (1960) observes, “the Chinese Empire did not feel the need for foreign trade; it could ﬂourish without the European trade which existed at Canton and Macao; in short, China was self-suﬃcient. Moreover, the profession of merchant had always been regarded with contempt by the scholar-oﬃcial class which ruled China”. The obstructionists in the Chinese bureaucracy, especially those at Canton, took grave exception to the British proposals to set up a permanent mission in Beijing and to land Macartney at the port of Tientsin, ostensibly to reduce the risk of breakage incurred in the transportation of fragile and valuable gifts intended for the 80-year old emperor. This proposal represented a radical departure from established procedures, which were intended to keep foreigners under local control in Canton and Macao. Rather stiﬀ correspondence on the matter gave way eventually to a superbly crafted edict issued by the aged emperor. No document before or since captures so exquisitely the classic Chinese position on the modern, and thoroughly non-Chinese, institution of permanent inter-state diplomacy. It deserves to be quoted at some length. We have perused the text of your state message and the wording expresses your earnestness. From it your sincere humility and obedience can clearly be seen. It is admirable and we fully approve … As to what you have requested in your message, O King, namely to be allowed to send one of your subjects to reside in the Celestial Empire to look after your Country’s trade, this does not conform to the Celestial Empire’s ceremonial system, and deﬁnitely cannot be done. Hitherto, whenever men from the various Western Ocean countries have desired to come to the Celestial Empire and to enter the Imperial service, we have allowed them to come to the capital … But once having come, they were obliged to adopt the costume of the Celestial empire, were conﬁned within the Halls, and were never allowed to return home … Moreover, the territories ruled by the Celestial Empire are vast, and for all the Envoys of vassal states coming to the capital there are deﬁnite regulations regarding the provision of quarters and supplies to them and regarding their movements. There has never been any

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precedent for allowing them to suit their own convenience. Now, if your Country retains someone at the capital his speech will not be understood and his dress will be diﬀerent in style, and we have nowhere to house him. If he is to resemble those Western Ocean men who come to the capital to enter the Imperial service, we must order him, without exception, to change his dress to that of the Celestial Empire. However, we have never wished to force on others what is diﬃcult to do … If it is said that because you look up with admiration to the Celestial Empire you desire him to study our culture, yet the Celestial Empire has its own codes of ritual which are diﬀerent from your Country’s in each case. Even if the person from your Country who remained here was able to learn them, it would be of no use, since your own Country has its own customs and regulations, and you would certainly not copy Chinese ones. The Celestial Empire, ruling all within the four seas, simply concentrates on carrying out the aﬀairs of Government …. In fact, the virtue and power of the Celestial Dynasty has penetrated afar to the myriad kingdoms, which have come to render homage, and so all kinds of precious, things from ‘over mountains and sea’ have been collected here…. Nevertheless, we have never valued ingenious articles, nor we have the slightest need of your Country’s manufactures. Therefore, O King, as regards your request to send someone to remain at the capital, while it is not in harmony with the regulations of the Celestial Empire, we also feel very much that it is of no advantage to your Country. Hence we have issued these detailed instructions and have commanded your tribute Envoys to return safely home. You, O King, should simply act in conformity with our wishes by strengthening your loyalty and swearing perpetual obedience, so as to ensure that your Country may share the blessings of peace ….

Two days after this famous edict was promulgated, Lord Macartney landed at Taku. He was accompanied by an entourage of oﬃcials and merchants that also included scientists and artists. The purpose was to demonstrate something of the range and creativity of British culture. The vessels carried products of the Industrial Revolution, which was developing briskly on British soil despite the imminence of hostilities with France (Fairbank and Goldman, 2002). Unaware that he had already, in eﬀect, been dismissed, propriety still required that the rituals be performed before the dismissal should be made known. Further diﬃculties arose over the appropriate form of deference that should be shown by Macartney to the emperor. Normally in the past, foreign envoys presented on similar occasions were required to perform the full kowtow ceremony, which consisted of nine prostrations and nine knockings of the head on the ground. Macartney demurred. His oﬀer to do so before the “calm, venerable and digniﬁed” sovereign was apparently made conditional upon performance of the same ceremony by a Chinese oﬃcial of equal rank before a portrait of King George III. The oﬀer, intended to reﬂect the spirit of sovereign state equality, was not taken up. Twenty-three years later, the British government tried again, but once again failed. The mission under Lord Amherst in 1816 was treated less courteously than Macartney’s, and turned away. Once more, the requirement to perform the full kowtow was made and rejected. The dignity of both empires was at stake, and a middle ground could not be discovered. It did not help that the second British mission was poorly

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prepared and that British soldiers were ﬁghting Nepal, a Chinese tributary at that time (Fairbank, Reischauer, and Craig, 1965). Reﬂections. Against the rising standard of worldly sophistication in 18th century Europe, China’s rulers were beginning to shed some of their naivete about the outside world. Yet by 1800 there was still a major problem of cultural dissonance as the Chinese came increasingly into contact with educated foreigners who were unable to follow Ricci’s remarkable example of accommodation. The weight of China’s cultural tradition was still overwhelming those in the mandarinate who might have been willing to modify the Middle Kingdom theory. Pride of civilization swelled up in response to new, startling displays of the westerners’ pride of nation. The more the outsiders pressed for equality and reciprocity, the stiﬀer the Chinese resistance. Fortunately, perhaps, the Manchu overlords of China were themselves semi-foreigners in their own realm, not entirely comfortable within a cultural system of such ancient and distinguished lineage. In many respects, they became sinicized, acquiring the Han appearance, but at bottom they were still only several generations away from their Northern ancestors. They married among themselves, and remained genetically distinct and strong enough to impose on the Chinese population customs such as the wearing of the queue. The Han tradition was no longer seen to be determinately linear and unchangeable. The growth of outside interest in the China trade was soon to stimulate Chinese interest in one commodity that would bring social and economic ruin to millions of the emperor’s subjects. Opium, “the heavenly demon”, was originally brought into China by Arab and Indian traders before the 16th century, and then became a crop of special interest to the Portuguese and the Dutch. By the early 18th century opium smoking had become a Chinese habit, but it was conﬁned to the elite who could afford what was still a luxury product. No one in 1800 could have foreseen the national disaster that lay ahead. Addiction to the “dread agent of unimaginable pleasure and pain” would bring the diplomatic community to Shanghai in 1909 to prepare the way for the International Opium Convention three years later: the ﬁrst global treaty in which China was centrally involved. Themes and Controversies International Anarchy. By the mid-17th century the idea of the state had jelled within the minds of most Europeans. Its legitimacy had become increasingly diﬃcult to challenge. After the Peace of Westphalia, admittedly, the notion of the Emperor’s primacy persisted in many of the German-speaking principalities. Most of the rulers of these domains continued to consider themselves bound by their personal oath of loyalty to the Empire. Especially the princes with a signiﬁcant Catholic population were reluctant to dissolve the traditional bonds of fealty. However, the erosion of the internal imperial order was an inexorable feature of late 17th century Europe. National monarchy was on the rise, not least on the French absolutist model, even as Great Britain and others struggled with experiments in constitutional monarchism. The sovereignty of the modern state was now the basic norm of international rela-

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tions. Unassailable, the principle of national autonomy oﬀered at least the prospect of civic stability, provided the monarchy was strong enough to protect the nation’s borders. In the 1640’s Thomas Hobbes (1588-1679) made many enemies among his countrymen. As their nation lurched dangerously from one violent extreme to another, Hobbes wrote boldly on the primacy of monarchy, with apparently reckless indiﬀerence to his personal safety. As if to bring disaster upon himself, the famous philosopher succeeded in arousing the wrath of both sides in the great constitutional struggle that was tearing his country apart. The adherents of the doctrine of the divine “right of kings” were upset by his concept of sovereignty based on a social contract; and the parliamentarians, of course, were appalled by his advocacy of absolute rule. It seems curious in retrospect that so few of Hobbes’ contemporaries and successors were concerned with the external implications of the doctrine of state sovereignty. Regardless of how the theory of monarchy was addressed, or whether the virtues of republicanism were preferred, it went largely unnoticed, until the age of Emmerich de Vattel (1714-1767) more than a century after Hobbes, that the consensualism inherent in state sovereignty threatened the expanding world with a permanent condition of anarchy. As Keohane (2003) has suggested, we might distinguish three historic sources of international anarchy: (i) the lack of a common world government; (ii) the insigniﬁcance of international institutions; and (iii) chaos. Today only the ﬁrst of these seems to sustain the threat of anarchy in global society. In our contemporary world, we beneﬁt from an enormous array of international regulatory “networks of interdependence at multi-continental distances”. Although far from optimal in eﬀect, these global institutions greatly reduce the threat of anarchy within the inter-state system. Nor, despite many successfully targeted strikes by highly organized terrorist groups, do most of us seriously believe that chaos is imminent. But world society continues o evolve without any concerted eﬀort to inaugurate an era of “world government”. Except among the most committed adherents of the “constitutional” model of international law, there is little enthusiasm across cultures for a central government structure. With the continuing lack of central authority, world society remains anarchic in some degree: exposed to what political realists might characterize as an “anarchical order of power” (Aron, 1968). As Vattell’s detractors have unfailingly observed, his Droit des Gens (1758) is eclectic in composition, reﬂecting the ideas of his age, oﬀering a synthesis of conventional mid-18th century thought rather than presuming to break new ground. Instead of perpetuating the utopian ideal of a “world state”, an international commonwealth possessing central authority over its participating members, Vattel continued the tradition of natural rights and obligations which were binding on states as much as on individuals. He conceded that these entitlements and duties lacked clarity and accepted that each state must be allowed to judge, in its own sovereign discretion, the extent of its obligations (King, 1974). In short, the Vattellian “ideology of order” acquiesced in the existence of a system of sovereign nation-states that was unconstrained by any institutionalized form of global authority and only weakly limited by a tradition of natural obligations. In these

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two senses the inter-state community of the 18th century was naturally “anarchic”. It would be left to later ages to discover whether shared interest and goodwill would be suﬃcient to bind nation-states together through consensual settlements and arrangements. Rights of Conquest and Capture. Because of the weakness of normative constraints and the absence of centralized institutional control, the Western imperial powers in the 17th and 18th centuries continued to assert the “right of conquest”. Among rulers it was generally agreed that war was lawful, that in time of war a belligerent had the right to pursue a policy of conquest in the national interest, and that this right included an entitlement to occupy whole or part of the enemy’s territory with a view to extending its own national sovereignty over that territory (Kussbach, 1982). This general view, which distinguishes the ethos of the early modern past so sharply from contemporary morality, was ﬁrmly established in virtually all Western cultures, whether or not they reﬂected a warrior tradition. The introduction of the European doctrine of state sovereignty in the 16th century merely reinforced the ancient conviction that war, as such, was lawful. The right of conquest was an “incident” of sovereign state entitlement, although practical considerations often dictated a policy of self-justiﬁcation on the part of the belligerent. Hugo Grotius was uncomfortable with the absolutist version of the right of conquest. As a moralist, he respected the theological “just war” views of St. Augustine and Thomas Aquinas that conquest as a means of territorial expansion was morally unjust. He also respected the juridical position of Vitoria and Suarez denying the existence of a legal right of conquest. But, as a humanist, he felt the necessity to reconcile these utopian doctrines with the realities of state conduct. Accordingly, he staked out the middle ground in the debate, conceding a limited right of conquest when the war was “just”. The realistic aim for Grotius was not to prevent wars, but to make warfare “a little more humane and tolerable” (Ashley, 1969). It was left to Vattel to assert more boldly that conquest was a valid ground for the acquisition of title to territory under the law of nations, regardless of the belligerent’s motives. The period of world history from 1618 to 1815 witnessed a remarkable spread of overseas colonial territories acquired through resort to force by the military and economic powers of Europe. Moreover, the same ethic was applied to their own internal territorial conﬂicts on European soil. The Thirty Years; War (1618-1648) resulted in a negotiated peace, but the settlement involved huge transfers of territorial sovereignty that were the direct result of the force exerted by the leading powers on the continent. The rush to acquire new territories, whether at home or abroad, was unchecked by legal considerations. The gap between the utopianists and the realists on the question of war continued to widen throughout the 18th century, and well into the 19th. The Peace of Westphalia (1648) was followed by a succession of other “peace treaties”, whose principal purpose was to validate designated territorial reallocations at the end of the latest war: for example, the Treaty of the Pyrenees between France and Spain (1659), which resulted in the bloodiest kind of “peace”; the Peace of Utrecht (1713), whereby France ceded Nova Scotia and Newfoundland to Great Britain, sow-

Constructing the Imperial World-system (1618-1815)

ing the seeds of future discord; the Treaty of Aix-la-Chapelle (1748), which ended the War of Austrian Succession with numerous territorial settlements and conﬁrmation of Maria Theresa’s right to the Habsburg succession; the momentous Treaty of Paris (1763), whereby France conceded vast areas of mainland North America to Great Britain in return for colonies in the Caribbean , the Gulf of St. Lawrence and Africa, and Florida and Louisiana changed hands; the Treaty of Versailles (1783), which resulted in further territorial allocations in Canada, Africa, and the Caribbean; and the landmark Congress of Vienna (1815), which re-asserted the victors’ will over France at the end of the Napoleanic Wars, reﬁguring the face of Europe. These treaties of peace, the most famous negotiated instruments of the 17th and 18 centuries, were all the outcome of claims to the right of conquest (Phillimore, 1918). Among the corollaries of the right of conquest were such rights under the laws of war as the right of capture. In time of war, a belligerent state had the right to capture warships of the enemy state, to imprison the crew and conﬁscate the vessel and everything on board. It was taken to be a normal risk of naval warfare that one might fall into the enemy’s hands and be wholly subject to the captor’s pleasure. Very seldom was the right of capture waived on humanitarian grounds. But at least one such instance occurred by virtue of the special principle that ships in distress are entitled to refuge, even when forced into the port of an enemy state by force majeure. Ortolan (1864) reports on an incident in 1746, when Spain and Great Britain were at war. The British warship Elisabeth was forced to seek refuge in the Spanish-held enemy port of Havana in Cuba after encounter with a full-scale hurricane in the Gulf of Mexico. The English captain oﬀered his own life in return for the release of his crew, but the Spanish governor in Havana declined to impose the harsh rule of capture suggested. Spanish honor prevailed. “I shall never commit such an infamous act”, he replied. “If you had been taken in combat on the high seas or along our coastline, then your vessel would be taken and you would be our prisoners. But, beaten down by the storm, you have been driven into this port by the fear of shipwreck. I must forget that your nation is at war with mine. You are a fellow human being, and a victim of adversity, and we owe you our pity.” The captain was told to come in to have his crippled ship repaired, and then to depart with a guarantee of free passage beyond Bermuda. Despite the state of belligerency, the right of asylum was justiﬁed by the existence of imminent and irresistible danger to the British vessel, in circumstances where a certain loss could be avoided only by demanding refuge in an enemy port (Chircop, 2002). The Continuing Quest for Permanent Peace and International Organization. Victory had apparently been won by “accommodationists” like Grotius and Vattel, who accepted the need for compromise with the realities of national power and the legitimacy of state autonomy. Yet there was no scarcity of utopianists in the 17th and 18th centuries. Starke (1968) suggests that nine peace advocates of that era stand out in dissent from the mainstream acceptance of war and the right of conquest: Sir William Penn (1644-1718); John Bellers (1654-1725); Cardinal Alberoni (1661-1752); Abbe de Saint-Pierre (1658-1743); Jean-Jacques Rousseau (1712-1778); Immanuel Kant (1724-1804); Jeremy Bentham (1748-1832); Comte de Saint Simon (1760-1825); and

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Czar Alexander I (1777-1825). The ﬁrst four were essentially products of the 17th century, but, blessed with long life, all of them absorbed and reﬂected some of the liberalism of the 18th. Penn was an outspoken English Quaker-Puritan, whose denunciatory pamphlets and books set him at odds with every kind of mainstream in an age of violent dissent (Duan and Dunn. !986). Religious intolerance was the principal target of his polemics. With the accession of Charles II in1660, the prospects for religious freedom in England seemed unpromising. So he acquired from the king a vast estate on the west bank of the Delaware River in discharge of a large royal debt owed to his father. Penn sailed for the new province named after his father in 1682. During the two years of his residence there he supervised the “holy experiment” of a free government system designed to provide refuge for Quakers and other persecuted people: an ideal Christian commonwealth based on Quaker-Whig principles. Aware of the value of mutual trust, Penn participated in the negotiation of a series of treaties with the LeniLenape Indians, who were accepted as equals. Back in England, Penn became more inﬂuential through his friendship with the tolerant Duke of York, who became James II in 1685. The principle of religious freedom was ﬁnally conﬁrmed as a fundamental right by the Act of Toleration, which was enacted in 1689 as a critical component of England’s “Glorious Revolution”at the accession of William of Orange. William Penn might be allowed a place in the history of international law as a practitioner of civic enlightenment, as a constitutionalist, and arguably as a pioneer in fair negotiation. But above all, perhaps, he should be remembered by international lawyers as the author of An Essay Towards the Present and Future Peace of Europe (1693), in which he proposed an international parliamentary organization with national delegations weighted according to national wealth. Decisions by this European Diet would be by two-thirds majority. Like many of his contemporaries, he disapproved of neutrality, which oﬀended his sense of principled multilateralism (Starke, 1968). His plan for international peace was based on the theory of social contrast. “Peace”, he argued, “is maintained by justice, which is a fruit of government, as government of laws, from society, and society from consent” (Dunn, 1967). Beller, like Penn, was a Quaker reformist. As a Dissenter he was barred from all universities and professions, and suﬀered other deprivations until some measure of relief was provided by the passing of the Toleration Act in 1689, but he remained ineligible for an active role in politics. Twenty of his published essays have been preserved. In one of them, Some Reasons for an European State (1710), he oﬀered a visionary plan that was obviously inﬂuenced by conversations with his close friend William Penn. Was, he insisted, was totally inconsistent with Christian teaching and should be opposed by the churches. He advocated a single federal state for the whole of Europe, including Orthodox Russia and Muslim Turkey. His federation was envisaged as consisting of 100 Swiss-like cantons. The ﬁrst order of business for the federation would be the negotiation of a general disarmament agreement. Peace throughout Europe would be maintained by a collective armed force, to which all members be required to contribute in the common interest (Clarke, 1987). Alberoni and Saint-Pierre also envisaged a European Parliament under peace plans similar to that of Bellers. Giulio Alberoni, who eventually was made a cardinal in

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1717, ﬁrst made his mark as envoy to the Duke of Parma and agent for Elizabetta Farnese, the Duke’s niece and stepdaughter, whose suitability as the second wife for Philip V of Spain he successfully argued in 1714. She was, he assured, quiet and docile, “accustomed only to discourses of sewing and embroidery” (Kamen, 2001): “a good Lombard girl ... stuﬀed with butter and Parmesan cheese, brought up in the depths of the country, where she had heard of nothing save sewing, lace-making and the like” (Harcourt-Smith, 1945). There was no resisting his powers of persuasion, which won him great inﬂuence over Spanish foreign policy as Philip’s leading minister. In that capacity his principal goal was to remove the Austrians from Italy and to safeguard Spanish trade in the New World. Other capitals reacted accordingly. Throughout his career he was widely distrusted as too clever and suspiciously addicted to grand schemes that were assumed to be motivated by sinister Spanish designs. So little interest was aroused in his plan of 1730 for a European Federation with a federal army and a permanent congress authorized to arbitrate international disputes. The Perpetual Peace Project (Projet de paix perpetuelle) (1713) of Saint-Pierre became particularly well known throughout the continent. Unlike the contributions of Penn, Bellers and Alberoni, Saint-Pierre’s proposal for an international organization was based on critical scholarly analysis of political, legal and social developments. The intellectual depth of his project ensured its continuing inﬂuence on European intellectuals. Montesquieu and Rousseau were among those who drew heavily upon Saint-Pierre, keeping alive the visions of perpetual peace and international organization through the Realpolitik of the 19th century. Rousseau, however, felt that the abbe’s famous work was riddled with error, which he ascribed to Saint-Pierre’s misperception that we are guided by the light of reason (lumieres) rather than by our passions (Perkins, 1958). Rousseau was the most famous moralist of the French Enlightenment. No previous writer on social and political theory had captured so eloquently the liberal values that animated the reading public in the 18th century. No one was more closely identiﬁed with the idea of social progress. His extraordinary inﬂuence on succeeding generations was not that of a systematic or particularly lucid thinker, but of a brilliant synthesist, or reorganizer, of progressive ideas. From Saint-Pierre and others he derived the idea of a Federation of Europe, but for Rousseau, unlike Bellers, Turkey would be excluded. The federation in his plan would have a strong central executive and the sole power to approve wars. He was a multilateralist in international matters, but not a true paciﬁst. On the other hand, no one was more systematic or less lucid than Immanuel Kant. He lacked entirely the expository talents of Voltaire, Rousseau or Hume. Long before he turned his powerful mind to the problem of international order, he had become famous in academic circles as a philosopher of striking originality, not least as author of the magisterial Critique of Pure Reason (Kritik der reinen Vernunft) (1781). Some writers, like Gallie (1978) have spotted Kant marching under a number of “radically conﬂicting banners”, but others have been more impressed by his logical consistency. Kant was deeply convinced of the power and authority of reason, not only in the development of scientiﬁc knowledge but also in the moral conduct of life. It was

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necessary for him to reconcile his belief in the “freedom of man” with the causal necessity of nature. Kant argued that reason, residing within all of us, lays down the law of moral conduct. We are all aware of the inner prescription of the law which we know we ought to obey. The “categorical imperative” is directly experienced. It is not a command from without. We live under the “autonomy of will” (Hendel, “Freedom, Democracy and Peace”, 1957). Kant was almost 71 years old in 1795, when he published his 45-page essay Towards Perpetual Peace (Zum ewigen Frieden). Appalled by the Reign of Terror in Paris, he had grown distrustful of any unbridled form of democracy. He was, after all, a Prussian academic, a life-long bachelor comfortably installed as professor of philosophy at a provincial university in the city of Konigsberg, at the farthest margin from the great events of his time. His exemplary private life there symbolized a thinker at ease with the ideal of a state based on the rule of law, committed to the goal of “progressive legalization”. Though a loyal citizen of one of Europe’s more autocratic states, Kant had been an admirer of the aims of the French Revolution, but, in his eyes, the failure of that experiment in radical reform reconﬁrmed the wisdom of placing one’s faith in a constitutional framework with separate executive and legislative organs of government. His use of the term “republican” did not mean that he rejected monarchy; indeed he seems to have preferred constitutional monarchy as the system most likely to sustain progression toward civic enlightenment. Yet for Kant, one of the basic purposes of the state was to protect property rights. Seen in that light, he has been characterized, without irony, as the “philosophical spokesman of bourgeois civilization” (Friedrich, 1948). Kant agreed with Rousseau that war was an intolerable evil, but like most serious thinkers of his age, he was not so much a paciﬁst as an internationalist. In Towards Perpetual Peace he called for a confederation of European states. Nations would disarm, but not totally: standing armies would be abolished, but each state would be required to maintain a citizens’ militia for purposes of self-defense. Treaties subject to secret reservations were to be proscribed. There would be no acquisition of territory by any means, through conquest or otherwise. National citizenship would give way to world citizenship. A permanent congress would provide over a system of peaceful dispute settlement (Starke, 1968). Yet despite this bold and clear vision, Kant fell back into obfuscation, insisting that all constituent states should retain their sovereign rights in all matters except for the making of war. There should be no interference in the internal aﬀairs of the state (Gallie, 1978). How much credence should we give to the apparently cosmopolitan orientation of Kant’s world view (Weltanschauung)? How seriously should we take his views on international law? Bottled up in his ivory tower, he had little practical knowledge of world aﬀairs. He depended upon the delivery of an international assortment of newspapers, and letters from former students overseas, for his grasp of political events. Critics have objected to the exclusionary nature of Kant’s system of “categories”, which made no allowance for experiences that did not ﬁt into his system. His heavily Teutonic preoccupation with high-level abstractions limited his understanding of “reality” (Beck, 1978). His formidable intellect lacked the nimbleness essential

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to lawyers and others practised in operational tasks such as ﬁnding an institutional balance between international cooperation and national autonomy. Jeremy Bentham, on the other hand, was chieﬂy interested in legal and political theory. He was unusually shy and reclusive, apparently repressed in childhood by a demanding father. Yet he enjoyed a long and happy life with a small circle of close friends with similar talents. He yielded to insistence that he follow his father into the legal profession, but he was repelled by what he found there: “an intractable and disordered accumulation of precedents and practices, shot through with technicalities and ﬁctions and incomprehensible to everyone except professional lawyers” (Dinwiddie, 1989). He wished to “pluck oﬀ the mask of mystery” (Postema, 1986). He was not, of course, the ﬁrst advocate of codiﬁcation as a corrective for the unwieldiness of the English common law, but he did introduce that term into the English language. He also coined the term “international law” (Kayser, 1967). His highest ambition was to establish a code of laws that would be directed to attaining the greatest happiness for the greatest number within a benevolent system of governance. Benevolence depended on eﬀective legislation that kept the balance between public and private interests. As he grew older, he became increasingly critical of monarchy and aristocracy and turned to liberal democracy (Parekh, 1973). Despite his remarkably private temperament, he became the leading Radical of his day. He was one of the ﬁrst men in political theory to advocate votes for women. “His refusal to believe without rational grounds led him to reject religion, including belief in God; it made him keenly critical of absurdities and anomalies in the law, however venerable their historical origin. He would not excuse anything on the ground that it was traditional. From early youth he was opposed to imperialism, whether that of the British in America, or that of other nations; he considered colonies a folly” (Russell, 1954). Bentham was not a paciﬁst in the strict sense, but he always treated war as a “mischief upon the largest scale ... invariably damaging to the peoples which engaged in it, though not perhaps to their ruling elites” (Dinwiddie, 1989). Bentham’s Plan for a Universal and Perpetual Peace reﬂects his detestation of privilege and secrecy in civic aﬀairs. International peace, he recognized, would never ensue from an unending succession of treaties of peace or alliance. He called for an end to secret diplomacy a hundred years before “open diplomacy” became the talisman for the international community. He was a pioneer in the very slow movement toward transparency in government. He added his voice to the futile call for disarmament and the renunciation of colonies. He was willing to repose his trust in an international congress, but not to vest it with more than advisory power. In short, Bentham was an institutionalist who would have enjoyed the cut and thrust of the 20th century. Claude Henri de Rouvroy, the Comte de Saint-Simon is, of course, best known as one of the founders of socialism. Some writers such as Ansart (1969), have regarded his as an anarchist, but this view is now less fashionable (Marshall, 1993). Although he fought in the American War of Independence, like his aristocratic compatriot the Marquis de Lafayette, his lineage caused his imprisonment during the Reign of Terror. After his release he devoted his life to various kinds of schemes and speculations. In the political domain, his works reﬂect reaction to the extremes of his age:

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to the excesses of French populism running wild and to the military despotism of Bonapartist imperialism. In some ways, he sits comfortably in the modern, liberalist middle between Left and Right. In the words of Thomas Kirkup, what Saint-Simon wished for, above all, was “an industrial state directed by modern science in which universal association should suppress war, and society should be organized for productive labor by the most capable men”(Durkheim, 1962). Society ought to be reorganized with a view to the “amelioration of the moral and physical existence of the poorest class”. The spirit of “association” should prevail over that of “antagonism”. To that end, Saint-Simon envisaged a single system of benevolent rule for the whole of Europe: one elected Parliament and – somewhat curiously – one monarch. The malaise of poverty could not be treated and cured in isolation at the national level. What was needed was reorganization of European society as a whole (Ionescu, 1976). In this philanthropic utopianist, who was willing to stake his personal fortune on unsuccessful but wellintentioned projects, we see an idealist who might have been the ideal candidate to direct the contemporary UN eﬀort to combat world poverty. The last of our nine idealists is perhaps the most surprising of all. Czar Alexander I was an assortment of many contradictory elements. Heir to a dynasty of autocratic notoriety, he was, on the other hand, the product of an unusually liberal education in the free-thinking court of Catherine II. His formidable grandmother named him after Alexander Nevski, the famous Russian warrior-prince (Alexander, 1989). His inherited love of military discipline and display conspired against his early education in Rousseau’s “gospel of humanity”. Early in his reign it seemed that his liberal education had won out, but the reform of Russian society that he wished for could not be inﬂicted from the top on a culture not yet ready to support the weight of liberty. Walter Alison Philips has suggested that it “ﬂattered his vanity to pose before the world as the dispenser of beneﬁts, but his theoretical liberalism warred with an autocratic will that brooked no contradiction”. Inexorably, as events unfolded, the czar and the elite around him were drawn into political machinations to the west, where his interests as well as his ideals focused. Alexander is most clearly remembered as the sometime-ally, sometime-antagonist of Napoleon: ﬁrst, famous as a victim of the great betrayer, and then as the avenging savior of his people. The general verdict has been that the Russian czar was too naive to play an eﬀective role in the rough-and-tumble of the Napoleonic era. Sympathetic historians have been willing to believe that the idealistic young ruler of a backward realm grew into a disillusioned man, who recognized that his liberal ideals could never be realised unless his country ﬁrst acquired the authority of a hegemonial power. The distrust he engendered by his visions of a great alliance devoted to a lasting peace may tell us more about his cynical contemporaries than about the man himself. He seems, in retrospect, a tragic ﬁgure, perhaps more benevolent than any of his detractors. Acquisition of Territory. It would be a mistake to give the impression that by 1815 international lawyers had come to terms with conquest as the principal or normal mode of acquiring territory, even although the use or threat of military force obvious-

Constructing the Imperial World-system (1618-1815)

ly made it possible for the Western imperial powers to establish colonies around the world. By 1815 it was understood that there were also numerous peaceful modes of acquiring or transferring title to territory (Torres Bernardez, 1987). In medieval times the sovereign ruler had been considered personally entitled to territory in much the same way as he or she was entitled to private property. For example, it was recognized that property could be acquired through marriage, testate or intestate succession, division of dynastic estates, a family pact, a papal grant, discovery, symbolic occupation, cession by sale, cession by donation, exchange, eﬀective occupation, and adjudication by a recognized international authority. All of these, and other, methods of peaceful territorial acquisition were known to jurists by the end of the 18th century (Verziji, Vol. III, 1970). At least the ﬁrst seven of these modes are obsolete today, but in the 17th and 18th centuries most of them were still considered legitimate ways of acquiring title to territory, reﬂecting the continuing conﬂation between concepts of private law at the national level and of public law at the international level. One of the most interesting of these old methods of obtaining title was by discovery (Zayas, 1987). Down to 1815 many jurists were prepared to accept the legitimacy of discovery without an accompanying act of occupation, such as the planting of the claimant’s national ﬂag or the erection of a simple memorial conﬁrming the fact that possession had been taken of the territory in the claimant’s name. Moralists such as Vitoria and Suarez saw no reason to contest claims of this kind. It fell to later jurists to question the validity of a title claimed to rest on a purely “symbolic” occupation, but the trend to acceptance of occupation only if it could be shown to be “eﬀective”, through a pattern of administrative acts or otherwise, belonged to the history of the 19th century, as the classical system of international law was beginning to crystallize through doctrinal development (Sharma, 1997; Jennings, 1963). Another interesting old example of territorial acquisition, as noticed in an earlier chapter, was by papal grant or adjudication. The validity of the right to allocate territory asserted by the Pope was challenged at an early stage, even by Catholic writers such as Vitoria, as in the case of the famous Treaty of Tordesillas (1494) between Spain and Portugal based on a papal adjudication. Signiﬁcantly, Tordesillas was set aside expressly in Article 21 of the 1777 boundary treaty between these two countries. Even Spain and Portugal did not accept the authority of the Pope as resolutive of future territorial or boundary disputes. Papal grants of territory have fallen into desuetude since then, but in modern times several Catholic states have found papal intervention a constructive means of resolving an emotive territorial impasse, as in the case of the Beagle Channel dispute in the 1970’s between Argentina and Chile (Johnston, 1988). Neutrality. In general usage, the term “neutral” is applied to any state that chooses to avoid participation in a war between other states. In this generic sense, “neutrality” is as old as the history of warfare, perhaps as ancient as the pre-history of human conﬂict. Neutrality practices can be traced back to most systems of civilization. “Neutralism”, on the other hand, is a modern concept, applied to the policy or ideology of a sovereign nation-state that seeks to avoid all war-like conﬂicts, regardless of

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their merits. It is a political, not a legal, term, and may be considered broad enough in its connotation to embrace the modern practice and ideology of “non-alignment”. The medieval period of European history was not conducive to a clear-cut, legally satisfying, distinction between neutrality and belligerency. Rulers bound by feudal obligations to imperial authority were not free to choose between these two alternatives. It was accepted that the Catholic Church in particular, had a legitimate role in seeking to unite the faithful against the “enemies” of Christianity. In a conﬂict between God and the inﬁdels – between truth and error – who could be neutral? Within the realm of Christendom, numerous treaties were concluded to reaﬃrm the obligation to engage in a “just” war, against the Turks especially (Jessup and Deak, 1935). By the early 17th century jurists were dividing on the “principle” of neutrality. Inﬂuenced by traditional ”just war” doctrine, Grotius felt obliged to agree that neutrals should by no means support an “unjust cause” in circumstances where the merits of the case were not in question. But when the justness or unjustness of a war was not so easily judged, he suggested that belligerents should be treated equally. Bynkershoek (1673-1743), a century later, was ready to dismiss the relevance of justness in the context of neutrality issues: neutrals should be wholly impartial vis-à-vis all belligerents. Somewhat later still, Vattel (1714-1767) reinforced Bynkershoek’s position favoring even-handedness (Kussbach, “Neutral Trading”, 1982). Bynkershoek and Vattel represented an age when it was becoming recognized throughout the Western world that the freedom of trade and navigation was of cardinal importance in inter-state relations. The emerging law of nations, they agreed, should consist of fair and impartial rules, reﬂecting the Roman law tradition of objectivity applied to disputes involving foreign merchants. The concept of “neutral trading” had emerged out of the 15th century, when the customs and rules related to maritime commerce in the Mediterranean were ﬁrst compiled in the Consolato del Mare (1494). This early “codiﬁcation” dealt in part with the need to aﬀord a special legal protection to neutral ships and goods. Speciﬁcally, it prescribed that neutral (or “free”) goods on “enemy ships” and neutral (or “free”) ships carrying “enemy cargo” should not be subject to seizure by a party to a war. By the 17th century it was becoming common practice for neutral states in time of war to conclude treaties with belligerents guaranteeing the right of neutrals to trade within agreed-upon limits, but by the early 18th century legal debate on the rights and duties of neutrals was beginning to be heavily inﬂuenced – indeed shaped – by the realities of naval warfare. The Seven Years’ War (1756-63) conﬁrmed the growing supremacy of Great Britain as the leading naval power, but even the rapidly expanding British ﬂeet of heavily armed cruisers could not enforce its will against all its enemies on all fronts at all times. So it became a strategic necessity for belligerents to focus their energies and resources on the blockade of speciﬁc, strategically crucial, enemy ports. This tactic was ﬁrst employed by the Dutch in 1584 against the port of Flanders, which was then under Spanish control, but the use of blockades became more general in the 17th century and a common method of naval warfare in the 18th century. The law of neutral rights and duties became clearer with the development of the legal concept of contraband: goods designated as susceptible of belligerent use (such

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as troops, money, precious metals, ornaments, ammunitions and equipment) and apparently in carriage to an enemy destination. Reﬂecting trends in national legislation and judicial decisions in the 17th and 18th centuries, the law of nations endorsed the notion that belligerents were entitled to restrict the freedom of neutral trading in the case of contraband carried on private commercial vessels under a neutral ﬂag (Meng, 1982). Accordingly, numerous “armed neutrality” treaties in the 18th century were framed around the concepts of blockade and contraband. In 1780, for example, Denmark, Russia and Sweden concluded such a treaty along the following lines: (i) all parties had the right, as neutrals in times of war, to navigate between the ports and along the coasts of belligerents; (ii) with the exception of contraband, enemy goods on neutral ships should not be subject to seizure; and (iii) a port should not be considered blockaded unless the blockade was eﬀective (Kussbach, “Neutral Trading”, 1982). Alliance. One of the many diﬃculties associated with the law of neutrality evolving in the 18th century was that in practice there was often no black-and-white distinction between war and peace. Some states declining to become involved openly in a war between other states sought advantage in an undeﬁned, legally irritating, “grey” zone – suggesting a “semi-neutral” status for non-participants showing a marked preference for one of the belligerents. Sometimes the preference was rather clearly demonstrated in the supply of troops, money, or other strategic goods to the favored side. Almost invariably, such partiality reﬂected commercial interest, though ethnic and cultural identity also played a role. The agony of neutrality was nowhere more evident than in the aftermath of the American War of Independence. After the signing of the Declaration of Independence, Benjamin Franklin and Arthur Lee (as a substitute for Thomas Jeﬀerson, whose wife’s illness had kept him at home) were sent to Paris to join Silas Deane to begin secret talks with the Comte de Vergennes, the anti-British minister of foreign aﬀairs. Initially it seemed improbable that the colonists could prevail, but after the defeat of General Burgoyne at Saratoga the treaties sought after by Franklin and his associates were signed in February 1778. Substantial loans were obtained despite mounting pressures on the French treasury, and 44,000 Frenchmen were pressed into military and naval service on behalf of the revolutionaries: 12,000 soldiers and 32,000 sailors. The Americans’ debt to France was very considerable. The French alliance was important, if not decisive (Stinchcombe, 1968). Much of the policy of Franco-American alliance was due to Franklin, whose diplomacy in Paris between 1776 and 1785 was entirely spectacular (Stourzh, 1969). No less crucial was the personal contribution of the Marquis de Lafayette. At the age of nineteen, the idealistic aristocrat sacriﬁced a life of luxury on his family’s estates in the cause of liberty and democracy, earning the famous accolade as Washington’s “adopted son”. After enduring the rigors of Brandywine and Valley Forge, Lafayette was given responsibility for “foreign aﬀairs” by General Washington. In that capacity, the French hero sent out letters to numerous persons of inﬂuence in France, urging support of the colonists’ cause. When the eﬀorts of Franklin and Lafayette were ﬁnally rewarded with the signing of the alliance in 1778, the Frenchman was publicly

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thanked by Washington. “Overcome by emotion, he gripped the commander in chief and embraced him – perhaps a ﬁrst for the usually austere Virginian, but certainly not the last” (Unger, 2002). Franklin continued to sparkle as Minister and cultural icon in Paris until his replacement by Thomas Jeﬀerson in 1785. The brilliant Virginian stayed there long enough to witness at ﬁrst hand the outbreak of the French Revolution in the summer of 1789. Then he was succeeded in due course by Gouverneur Morris, and later James Monroe. Earlier notable Americans in Paris included Benjamin Rush after his medical studies at Edinburgh in 1769, who did not conceal his disappointment at the state of French hospitals; and in 1778-79 John Adams, the conservative Bostonian, who was critical of the free-thinking philosophes, and his wife Abigail, who was shocked by the lifestyle of Parisians paramours and unbelievers (Spurlin, 1984). These were also the years that saw the beginning of an inﬂux of French visitors and settlers in America. None of these early visitors was more important than the economist Pierre Samuel Du Pont de Nemours (1739-1817), follower of the Physiocratic school of Francois Quesnay, associate of the economist Anne Robert Jacques Turgot (1727-1781), and one of the negotiators of the 1783 trade treaty between France and Great Britain. On his ﬁrst visit to America (1800-1802) he provided advice on national education for President Jeﬀerson, and laid the foundation of Franco-American trade with the establishment of several companies in the United States. In 1802 he returned to France to promote the sale of Louisiana to the United States. Late in life, Du Pont made his second visit to America, and died there, near Wilmington Delaware, in 1817. Despite these growing contacts between the two allies, the alliance itself was under strain from the beginning. The War of Independence had left less bitterness between the British and their wayward American cousins than might have been expected. Each of these two nations was by far the other’s most important trading partner. Many Americans not wholly won over by considerations of commercial beneﬁt were repelled by the excesses of the French Revolution and by the atheism professed by its most zealous promoters. Continuing French interest in colonization within the American sphere of interest gave rise to concern about the purity of French republican virtue, concern reinforced by the restoration of the Bourbons in 1814. The ardor of the famous Alliance of 1778 had cooled as early as 1783, but new strains appeared in 1793 with Washington’s Proclamation of Neutrality in the war between France and Great Britain. The “French factor” was now seriously divisive among American politicians: the conservative Federalists under Alexander Hamilton sided with the British, the liberal Republicans under Jeﬀerson with the French. The 1795 treaty of amity and commerce between the United States and Great Britain (Jay’s Treaty) caused profound antagonism in Paris, where it was understandably regarded as violating the spirit of the Franco-American alliance of 1778. Between 1798 and 1800 France and the United States engaged in naval warfare in the course of an undeclared, “informal”, war. The election of the pro-French Jeﬀerson as President in 1801 helped to heal some of the rifts between the two governments, but it also restored America’s image as a “neutral” state wishing to avoid treaty alliance entanglements. But, in the era that followed, “America’s involvement in aggressive expansionism across its own

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continent would make it more diﬃcult for the United States to maintain the posture of a non-participant, non-interventionist, neutralist state; and France, like Great Britain, would continue to play out the imperialist role of alignment and colonial acquisition. We might say, in retrospect, that what the 18th century was learning was the elusiveness of political goals such as alliance, neutrality and peace in a geopolitical world of acute inter-state rivalries (Phillimore, 18918). To put such goals in treaty form, with its promise of permanence and inviolability, was to place an impossible burden on the “contractual” theory of treaty-making. Much later, it would become clearer that realistic exploitations of treaty compliance must be tempered by awareness of the functions that diﬀerent instruments are designed to serve. Even those that purport to be “resolutive”, such as treaties that make territorial settlements, are unlikely to endure, if they are based largely on political advantage and expediency and negotiated with a view to the “demonstrative” purposed of the situation. Privateering and the Law of Prize. The 17th and 18th centuries featured numerous wars both formal and informal, declared and undeclared. Within the framework of modern Western history, the “public” navy, owned and operated by the state as an instrument of power at sea, was slow in evolving because of the extraordinary expensiveness of ship construction and maintenance. The modern navy became possible only when the stakes in maritime commerce became enormous. As we have seen, trading ports and alliances such as the Hanseatic League owned and operated their own enforcement vessels in the Middle Ages, usually as a defence against pirates the common enemy (hostes humani generis). In the 14th and 15th centuries the keeping of the seas was quite frequently put out to contract (Marsden, 1915). By the 16th and 17th century, the largest ﬂeets of armed vessels were those of the wealthiest trading companies like the Dutch East Indies Company. By then, supremacy at sea – the power to control the most lucrative trade routes – was becoming the highest prize in international relations. The Spanish Armada had proved the necessity of supplementing state-owned naval galleons with armed merchant ships. By the 17th and 18th centuries the major naval powers, positioned to extract huge proﬁts overseas, were prepared to invest in heavily-armed cruisers and lighter and faster frigates, but it remained essential throughout both centuries to maintain the tradition of privateering that originated in Elizabethan England. In 1585 the Primrose, a suitably English-sounding vessel, escaped from arrest in a Spanish port. At a time of rising anti-Spanish sentiment in England, it arrived home to patriotic acclaims the English government instructed the Lord Admiral to examine the claims of the owners of the cargo conﬁscated by the Spanish. After veriﬁcation, the claimants were issued “letters of reprisal”, entitling them to seek restitution through a comparable seizure of Spanish goods at sea, and the right of reprisal was extended to all subsequent victims of similar private wrongs. Henceforth, Spanish ships and goods would be fair game for any English merchantman wanting to engage in state-sanctioned plunder at sea (Andres, 1964). The idea of “private war” caught on as a substitute for naval expansion. Private commercial vessels granted “letters of marque” were authorized by a belligerent state

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to operate as ships of war against the designated enemy: to seize enemy ships and cargoes as legitimate acts of war as well as to carry out reprisals against enemy ships engaged in similar activities. This method of “commerce destruction” was adopted by all Western maritime powers until the early 19th century. In the case of “true”, oﬃcially designated privateers, the crew was paid neither by the state nor by the shipowner. Their remuneration came exclusively from the capture of prize. In earlier times it was often impossible to distinguish privateers from pirates, or corsairs or buccaneers engaged in maritime plunder without oﬃcial commissions. Yet these licensed plunderers and their successors shared the same predatory lifestyle as traditional pirates and displayed the same disregard for moral scruples (Leefe, 1978; Statham, 1910). Technically, the former operated within the legal framework of their own land, whereas the latter did not. The law of nations in the early 17th century was much too ﬂuid to impose clear legal constraints on the practice of privateering. Corruption was widespread within the national judicial systems that were expected to introduce some order and fairness to bear making consistency in the application of prize law rules virtually unattainable, even in the hands of exemplary judges, not least because the chief beneﬁciaries of system manipulation were often the ruling elite. Even in the absence of corruption or political pressure, there were genuine technical problems in the ﬁeld of prize law. Normal evidentiary could not be easily applied to desperate actions granted a degree of random, discretion in circumstances where reliable and independent witnesses were usually impossible to obtain. Throughout the 17th and 18th centuries a constant eﬀort was made to regulate this practice of taking prize at sea. All Western countries involved in large-scale maritime trade enacted their own legislation, and in most cases developed their own case law through judicial decision. Numerous treaties were negotiated on matters of prize in the hope of facilitating a convergence of national legal systems under a common law of nations. Although never entirely realized, these hopes for “harmonization” of national prize law represented an important endeavor in the early modern history of international law. Admittedly, such concepts as contraband and blockade were not new: Hosack (1882) claimed they originated in the period of Judas Maccabaeus, in the 2nd century B.C., when the Jews and the Romans bound themselves by treaty not to supply arms, ships, money or provisions to each others enemies in time of war. However, the principal components of the legal system regulating capture at sea were essentially the product of the 17th and 18th centuries. Under cover of naval supremacy, the British tended to be most successful privateers. Benjamin Franklin excoriated Great Britain as “the ﬁrst piratical state in the world”, although Americans engaged in the business were almost equally adept, especially during the War of Independence, the Napoleonic Wars and the War of 1812 (Pares, 1975; Clark, 1956). Franklin’s views on privateering were reﬂected in the following provision, which he negotiated into the 1785 treaty between Prussian and the ﬂedgling American state: “And all merchant and trading vessels employed in exchanging the products of human life more easy to be obtained … Shall be allowed to pass free and unmolested” (Stark, 1897). During the war years, the American courts, following the British tradition of independence from the executive branch of government, tended to follow British ju-

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dicial precedents without regard for the views of American politicians. They noted the dicta of judicial authorities such as the great Lord Mansﬁeld, who aﬃrmed that “mutual convenience, eternal principles of justice, the wisest regulations of policy, and the consent of nations, have established a system of procedure, a code of law, and a court for the trial of prize. Every person sues in these courts of others, where all are governed by one and the same law, equally known to each”. This optimistic view of the international nature of prize law was not shared by everyone, especially on the continent of Europe. Jurists in France, Prussia and other countries increasingly challenged the moral legitimacy of the entire system of legalized capture at sea by belligerents. The pendulum was swinging in favor of the doctrine of neutral rights and the overriding value of free navigation and trade for non-belligerents. Ultimately, the sordid business of privateering became discredited after the end of the Napoleonic Wars, but its formal abolition was not eﬀected internationally until the 1856 Declaration of Paris, 270 years after its introduction (Stark, 1897). Piracy. Piracy proper – as distinguished from privateering – has been a menace to seafarers since the earliest pre-historic ventures beyond the shore. It may even have originated on primitive rafts. Although not quite matching the scourge of war, famine and pestilence, the piracy problem has been a constant concern throughout history – north, east and west (Gosse, 1932. Despite the violence associated with it, piracy has always been in essence a property crime. The purpose of the profession has always been to relieve the rich of some of their burden. It is not surprising that outrage over the piracy problem was highest in the 17th and 18th centuries, when unimaginable riches were opening up within an expanding worldwide network of maritime trade routes. Like caravan raiders, highwaymen, and train robbers in the early history of overland transportation, “men-of-war” at sea have enjoyed a certain cachet, when one chooses to overlook the evidence of bloodlust. Even a bit of bloodletting has often been considered excusable, when pirates had the right politics on their side. Pope “Alexander VI’s bifurcation of the seas, between Spain and Portugal in 1498, infuriated their maritime commercial rivals, especially the English, French and Dutch adventurers, who were forced into a state of informal war beyond the lines drawn in the papal bull (Williams, 1961). Those who chose to defy the bull were automatically condemned as “pirates” by the Alexandrians, and treated accordingly, but also praised as worthy patriots on the other side. “Piracy” was a politically convenient term of abuse. Yet there was always a hard core of vicious “common criminals” at sea, for whom there was no excuse or justiﬁcation: “a sorry lot of human trash”, even during the so-called “golden age” of piracy in the New World in the late 17th and early 18th century (Rankin, 1969). By that period, most jurists associated with the Western maritime powers were prepared to endorse the notion that all sovereigns had common jurisdiction over acts of piracy on the high seas, outside the limits of coastal state jurisdiction. For adherents of natural law doctrine in the 17th century, the existence of “universal” jurisdiction had its rationale in the idea that rights of property and person security

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were secured in natural law, which was of course universal in its reach. For many, it followed that all seafarers, with or without a special license, would take action against “pirates” in the common interest, and hand them without the customary legal formalities. Positivists agreed, though obliged to invoke the diﬀerent rationale that all seafarers taking the law into their own hands in such a manner had an “implied licence” to do so (Rubin, 1989). Such a license was generally agreed to board a ship on reasonable suspicion of piracy (Oxman, 1987). Because piracy was also treated as a municipal (i.e. national) law crime, judicial treatment of the charge varied considerably from jurisdiction to jurisdiction. Not infrequently, certain tribunals, such as those of the United States, displayed reluctance to accept jurisdiction over foreigners charged with an act of piracy outside the limits of their states territorial waters, unless the victims of the attack were subjects of their sovereign or the accused were not clearly extraditable to another jurisdiction (Rubin, 1989). Those and other technical diﬃculties in the national law of piracy prevented the evolution of uniform worldwide judicial action against pirates, and the concept of “universal” jurisdiction has never been free of challenge. As we shall see later, the concept of piracy has continued to generate controversy in a number of newer contexts to which it has been considered applicable. Yet in theory, rather than practice, the universality of the crime has encouraged legal idealists to pursue the quest for universal action against the most serious “international crimes”. Coastal State Control and Jurisdiction. Reference was made in Chapter One to the early 17th century “battle of the books” between Hugo Grotius and John Selden: between the Dutch advocate for an “open sea” (mare liberum) and the English jurist arguing for a “closed sea” (mare clausum). We noted that Elizabeth I had invoked the principles of international trade and free navigation in support of England’ national interest in overseas commercial expansion, but that James I, on arrival from Edinburgh, brought with him a traditional local Scottish resentment against the Dutch, the masters of the North sea ﬁsheries who were outﬁshing the Scots oﬀ their own shores. By the 1620’s the Jamesian policy of exclusion from the “king’s chambers” around the British coastline made new sense in the post-Elizabethan era, which gave rise to serious concern about Dutch commercial expansionism at home and overseas. Checking the Dutch East Indies Company’s preeminence in Southeast Asia, in particular, had become Great Britain’s highest commercial policy priority, and protecting its coastal ﬁsheries at home was also a politically popular course to follow. The history of this shift in British strategy to a modiﬁed mar clausum has been recorded in impressive detail (Fulton, 1911). The search for accommodation between mare liberum and mare clausum was conducted within the scholarly community, but through a process of undisguised advocacy on behalf of rival clients. An encyclopedic eﬀort was made by both jurists to marshal all the facts and ideas in support of freedom and protection respectively. For over a hundred years after the famous confrontation the outcome remainder inconclusive, but by the late 18th century most of the Western world, and all of the maritime powers, had agreed to treat special or exclusive rights of maritime jurisdiction as a matter of national entitlement, derived from the concept of sovereignty and

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justiﬁed by the legal ﬁction of territoriality applied to the ocean. Within a narrow band of “territorial waters” – not more than three or four nautical miles in breadth – the coastal state was conceded to have authority, not far short of absolute sovereignty for most purposes other than navigation control, which yielded to the principle of innocent passage. It was commonly assented to that such a grant of coastal state jurisdiction was justiﬁed by the need for self-protection. The mileage formula that satisﬁed most claimants to territorial waters was that the coastal states jurisdiction seaward should be coextensive with the range of gunﬁre. The celebrated “cannon-shot rule” was ﬁrst proposed in 1610, when the Dutch ambassadors argued for the freedom of ﬁshing. The spatial extent of coastal state authority should be limited, they asserted, by considerations of power. Thereafter the range-of-gunﬁre criterion acquired increasing support in state practice until it could eventually be granted the status of a Latin legal maxim (imperium terrae ﬁniri ubi ﬁnitur armorum potestas), as formulated by the Dutch jurist Cornelis van Bynkershoek (1673-1743) (Johnston, 1988). On the face of things, Grotius had won the debate with Selden. Yet the matter was not so simple. Less conspicuously, at least to the eye of lawyers and legal historians, there was a separate history of “ocean zoning”. As Fulton (1911) demonstrated, there had been a very long line of claims to exclusive coastal state authority over both the exploitation and conservation of coastal ﬁsheries. In the case of certain sedentary ﬁsheries, such as chanks and sponges, there was a pattern of international acquiescence to such claims (Johnston, 1985). Comparable coastal state claims had been made to exclusive authority over a number of other traditional activities, such as mariculture, mineral extraction, ports, and military security, in coastal zones of varying dimensions (Johnston, 1988). Moreover, by the mid-18th century the rise of national bureaucracy had led to intense conﬂict between governments, on the one hand, and smugglers and other tax evades on the other. In 1736 Great Britain introduced the ﬁrst of its “Hovering Acts”, which imposed national customs and excise jurisdiction upon vessels within ﬁve miles of the coast. Other states followed the British lead, though not all agreed that such jurisdiction should be limited to domestic vessels. In the 19th century this practice evolved into the international legal regime of the contiguous zone. Somewhat similar patterns were to emerge out of coastal zone restrictions applied to public health concerns in the 18th century. For example, in 1753 a British act declared that all ships coming from areas of bubonic plague infestation must, on nearing the coast, signal all other vessels in the area. By then it was known that the Black Death of an earlier era had arrived by ship henceforth, it became common for coastal states to enact “quarantine” restriction, under which approaching ships were subject to notiﬁcation requirements and isolation could be proscribed if certain deadly diseases were actually or potentially present on board. Eventually this kind of entitlement within designated coastal zones would also be incorporated within the modern multi-purpose regime of the contiguous zone (Johnston, 1988). Slavery. The taking of slaves, both in times of war and peace, was a common practice in most systems of civilization, east and west. Enslavement was frequently the

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fate reserved for prisoners of war following the ﬁnal conquest. In Islam, captives refusing to adopt the Muslim religion after a “holy war” were considered to have qualiﬁed for slavery. With the “opening up” of Africa in the New World, the capture of huge numbers of defenseless African men, women and children for deportation as slaves became one of the most distressing examples of barbarism in modern history. The humanist scholars of the 17th century were admirers of the sages of classical antiquity. Aristotle, the most erudite of all, had spoken for Athens. The people of the cold countries of Northern Europe, he explained, had energy (or “spirit”) but lacked the skills and intelligence necessary to rule others. Warm-weathered Asians, on the other hand, possessed the requisite skills and intelligence but lacked the energy to govern. It fell to the Greeks, paragons of a moderate climate, to fulﬁll their natural role as overlords of peoples from inferior civilizations that ﬁtted them for slavery (Montesquieu was one of many who followed Aristotle’s theory of climate). In Sparta, the economy depended on the helot system that maintained a serf class with a status intermediate between ordinary slaves and free citizens. At the outbreak of the Peloponnesian War, only 5 of the residents of Sparta were full citizens, whereas threequarters were serfs or slaves, and one-ﬁfth were foreign merchants or artisans. The ancient Romans had the same view that slavery was a normal institution, universally practised and justiﬁed as a natural phenomenon of human society. In the 1st century B.C., about 30 of the city of Rome were slaves. They made up most of the unskilled, semi-skilled and domestic service sectors of the Roman economy. The worst treated were those engaged in the mines. Cicero, among the most humane of Romans, was clearly uncomfortable with slavery, but, though he condemned the most brutal abuses, he drew back from demanding replacement of his country’s slave-based economy (Sellin, 1976). The humanists of the 17th century were reluctant to take a stand against the ancients on a practice that had also been let undisturbed by the liberating ethos of the Renaissance. Hugo Grotius, Thomas Hobbes and Sir Thomas More accepted slavery itself as reasonable, though critical of any form of inhumane treatment; and the liberal John Locke went so far as to include a slavery clause in his draft of the constitution for the colony of Carolina (Thomas, 1997). One of the earliest denunciators of slavery in the 17th century was a prince of the Catholic Church. Pope Urban VIII (Barberini) condemned the practice in unusually absolute terms in a letter written to his representative in Portugal in 1639. Those who engaged slaves were threatened with excommunication, apparently in response to a protest by Spanish Jesuits against the mass enslavement of thousands of Brazilian Indians. But papal authority on such a matter of economic necessity carried very little weight. The Jesuit dissenters were expelled and the slave ports on the Atlantic seaboard were appalled. Catholic or Protestant made no diﬀerence. As Thomas notes, “LaRochelle and Nantes were far apart in matters of religion, but they were as one on the beneﬁts of the trade in slaves”, and Liverpool stood equally ﬁrm in the North. Some were protective of the welfare of the American Indians, but saw no reason to extend their charity to the blacks imported from Africa. Indeed the labor shortage in areas such as Brazil had long been seen as an insoluble problem of colonial development without the use of African imports, ethically justiﬁed as the means of creating

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a better life for the indigenous people of the New World, for whom the best of the colonizers felt morally responsible. Yet the seeds of the anti-slavery movement were being sown by English Protestants by the second half of the 17th century. Deeply religious men such as Robert Baxter, Morgan Goodwyn and George Fox were writing and preaching against slavery: a Christian non-conformist, an Anglican clergyman, and the founder of the Society of Friends. Fox, the ﬁrst Quaker, may deserve pride of place as the founder of the movement. Though he was later to own his own slaves in Pennsylvania, like his disciple William Penn, he “preached brotherhood by letter to the slave owners of the West Indies, and denounced slavery in Barbados”. In establishing an organization built on such principles, he created the ﬁrst group that could bring sustained pressure on the ruling elite within political cultures beginning to become amenable to progressive ideals. Despite the modesty of his formal education, he was a proliﬁc author of pamphlets addressing the great moral issues of his day. Many of his followers were men and women of social prominence as well as strong convictions, capable of shaping progressive public opinion and bringing it to bear on national (an imperial) policy and legislation. Over the next century, a great ethical shift took place in Europe and America. Support for the anti-slavery cause came from the leading intellectuals of the European Enlightenment: Francis Hutcheson, David Hume, Jeremy Bentham, Adam Smith, Voltaire, Montesquieu, Rousseau, Edmund Burke, and many others. No one was more unsparingly critical of Christian slavery than Voltaire, the great social satirist. In his Scarmentado (1756) he imagined the capture of a European slave ship by an African vessel. “What right have you”, the captive captain asks, “to violate the law of nations and enslave innocent men”? “You have long noses”, the African captain replied, “we have ﬂat ones; your hair is straight, while ours is curly; your skins are white, ours are black; in consequence, by the sacred laws of nature, we must, therefore, remain enemies. You buy us in the fairs on the coast of Guinea as if we were cattle in order to make us labour at no end of impoverishing and ridiculous work ... [so] when we are stronger than you, we shall make you slaves, too, we shall make you work in our ﬁelds, and cut oﬀ your noses and ears” (Thomas, 1997). Action followed words in 1794, when the French National Convention abolished slavery and the slave trade in all French territories. Although this policy was reversed by Napoleon in 1802, the French example had been set. In England the members of the Anti-Slavery Society, founded in 1787, successfully promoted British legislation in 1807 that banned the importation of slaves into any British territory and provided that any ship engaged in the slave trade could be seized, detained and condemned as prize (Trebilcock, 1985). The ﬁrst treaty to condemn the slave trade explicitly was signed by France and Great Britain in the Additional Articles of the Paris Peace Treaty of 1814. However British diplomats who pressed for the outlawing of the slave trade altogether at the Vienna Congress in the following year had to settle for a less forthright declaration, signed by nine states, which merely called for the “prompt suppression” of the slave trade, without any designated deadline or speciﬁed enforcement strategy. The era of the Napoleonic Wars ended with agreement in the Additional Article attached to the

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Second Paris Peace Treaty of 1815, whereby Austria, France, Great Britain, Prussia and Russia committed themselves to a renewed eﬀort to abolish the trade. Tragically, this loathsome practice would continue through much of the 19th century (Sellin, 1976). As the Atlantic slave trade began to decline, slavery elsewhere expanded, not least in the Indian Ocean where slavers imported African victims to the Near and Middle East. Yet a stand had been taken, and an international policy of benevolence had ﬁnally begun to surface. The Imprisonment of Napoleon. For almost 200 years, scholars have clashed over virtually every feature of the life and career of Napoleon Bonaparte (1769-1821), and over the kind of legacy that the world has inherited from him. Controversies continue to erupt among historians on how he should be judged. Speciﬁcally, was he, at the end, a victim of victor’s will, left unprotected by a frail international rule-of-law tradition, or was he rather the ﬁrst sovereign of modern history to suﬀer an appropriate punishment for a career in monstrous crimes? Of all the great ﬁgures of world history, few have been as audacious, in deed and thought. No one has commanded so much attention from historians and biographers. In 1990 the British Library listed 787,457 books and articles on Napoleon written since his death in exile on the island of St. Helena at the age of 51. Thousands of writers have tried to capture the essence of this complex, brilliant, imperious, but vain and churlish, soldier-statesman. He has been painted in all the colors of the rainbow: as a great patriot who raised up France to its pinnacle of national glory; as the greatest conqueror since Alexander or Julius Caesar; as a master manipulator of sovereigns and their agents, a genius in the cynical diplomatic tradition of Richelieu; as the architect of numerous social reforms at home and the creative energy behind the codiﬁcation of the French civil law; as a political idealist foreseeing a future alliance of European sovereign states; and as a tyrant responsible for the slaughter of millions of innocents in countries that attempted to block his imperial will. He carved out his empire with an unshakable determination to re-shape the world in his own image, in an age when the law of nations had not yet jelled as a restraint on such men. Ironically, France’s greatest national hero was an Italian. Originally from Tuscany, the Buonaparte clan had settled in the poverty-ridden island of Corsica, where Charles accepted the French overlords with enough enthusiasm to earn an appointment as a lowly-paid court assistant (juge-assesseur). The problem child in the family was Napolioni, nicknamed Rubulioni (the Disturber). Who later admitted to his beginning as a brutish child. He grew up without any knowledge of the French language until Charles and his sons sailed away to take up residence in the land of the overlords. The future Emperor of France, the troublesome boy, was nine years old (Asprey, Vol. 1, 2000). Napoleon was critical of just about everything he encountered in the years that followed. At the Ecole Miltaire, for example, his “ﬁery temper and rebellious nature” did not endear him to his fellow-cadets, whose luxurious tastes earned his open contempt. Despite some scholastic successes, he ended up in forty-second place in a class of 120. He did not appear likely to have a distinguished military career.

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In 1786 Napoleon became entitled to wear a lieutenant’s uniform. The French military was still recoiling from its humiliation in the Seven Years’ War (1756-1763), which had resulted in a signiﬁcant loss of overseas territories and an even more damaging loss of national prestige. Immersed in studies of history, philosophy, law, and the natural sciences, the overly serious young Corsican took possession of an inﬁnitely larger mental world than his fellow-oﬃcers could have imagined. Then, rather suddenly, panic took to the streets of Paris in the summer of 1789. Caught within a mutinous army, Napoleon left the capital in disgust and returned to his family in Corsica. There he joined his lawyer brother, Joseph, in the risky nationalist (Paolist) movement, which favored making Corsica a semi-autonomous protectorate of France. Napoleon’s eﬀort to have an independent national guard established for Corsica miscarried, and in February 1791, after coming close to the line of treason, he rejoined his regiment in France. So the ﬁrst 22 years of Napoleon’s life were a period of loneliness, bitterness and frustration. Perhaps the only facets of his early life that might have oﬀered a glimpse of his future greatness were his unwavering conﬁdence in his own capabilities and his low regard for others. It may been these qualities, above all, that enabled him to take advantage of the “destiny” that awaited him, vaulting him to power as an unrivalled commander of all around him. It has been argued by Napoleon’s numerous admirers that his conduct of warfare was no more unscrupulous and ruthless that that of his adversaries. But others, more critically, point to the unparalleled scale of his resort to war, the total ruthlessness of its execution, his astonishingly cynical regard for those who contested his plans for France and himself, and his almost total contempt for the art of accommodation. However much adoration he elicited among his followers at home, no one in the 18th century provoked such a wave of hatred and revulsion beyond his own borders. It could not be expected that a man such as this would be generously treated by his enemies at the time of his eventual overthrow? The hatred that Napoleon inspired outside his own country makes him comparable with the other most-hated ﬁgures of world history, who would follow Napoleon on a similar path of destruction and slaughter. The crimes of Hitler and his Nazi associates between 1930 and 1945 were so monstrous that they forced the international law community to justify the retroactive application of principles of international criminal law that had not been formulated during the Nazi period. Most agreed in 1945 that the ethics of the situation demanded that retributive justice be done, even if the international legal system had to be reﬁgured in order to make this institutionally possible. As we look back at Napoleon, should we ﬁnd him “guilty” of international crimes of a similar magnitude? In posterity’s court of international public opinion, was the French emperor, the scourge of Europe, guilty of “war crimes” or “genocide” or “crimes against humanity”, like so many of those convicted at the Nuremberg and Tokyo trials at the end of the Second World War? Was he not at the least, as much of an international criminal as General Pinochet and other modern “sovereigns” responsible for atrocities? Contemporaries of Napoleon no doubt thought they had progressed beyond the earlier stage of world history when sovereigns foolhardy enough to venture on to the

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ﬁeld of battle took the risk of captivity for ransom, if the fortunes of combat went against them. Since the 15th and 16th century, when a king’s ransom was a fortune indeed, the vanity of heads of state had become magniﬁed under the theory of sovereignty and the ancillary doctrine of sovereign immunity. After Waterloo, the Emperor who had lost his throne sought asylum in Britain: “the most powerful, the most constant, and the most generous of my enemies”. Surrender to the Prussians or the Russians was out of the question. Members of the Chamber of Deputies in Paris were convinced that Napoleon’s abdication was essential to the country‘s quest for peace, and the man of iron will was too dispirited to face them down as he had in the past. His dynasty could not survive a military disaster. The Chamber disregarded Napoleon’s appointment of his son as his successor, and instead set in motion the forming of a new republic or even a Bourbon restoration. Napoleon’s plan had been to escape to the United States, where he had reason to hope for a safe and comfortable retirement, but the British Navy blocked his way oﬀ Rochefort. Curiously, Napoleon rejected all the escape plans suggested to him. Perhaps his pride would not allow his descent into ﬂight. Surrender may have seemed the more honorable course. On July 15th, 1815, Napoleon chose to surrender to Captain Frederick Maitland, commander of the British warship, HMS Bellerophon (Martineau, 1969). The British Cabinet’s decision was, of course, to conﬁne Napoleon indeﬁnitely on St. Helena, an island just acquired from the British East India Company. Napoleon apparently “received this information without marked emotion”. Later he complained strongly of the injustice of the decision, but his appeals for hospitality and justice went unheeded (Thornton, 1968). Critics of the British government in London denounced the discretionary decision to banish Napoleon “without a distinct accusation having been preferred and a formal trial instituted”, in the editorial words of the Independent Whig. In due course, the charge that the Cabinet’s decision lacked Parliamentary authorization found its mark, and in April 1816 appropriate legislation was enacted, prescribing the conditions of Napoleon’s detention. This did not of course silence the criticism that the government had ﬂouted the constitution by sentencing the famous captive without granting him a hearing or allowing him an appeal. For others, Napoleon was a prisoner of war, but the law of nations was still uncertain on the rights that “such a man” might have in this unprecedented situation. The Napoleonic literature darkened as evidence came forward that Napoleon might have succumbed to murder by poisoning. After the transfer of his body to Paris, his ﬁngernails were found to contain traces of arsenic. Conspiracy theories have abounded. Other writers have blamed his death on the arsenic contained in the wallpaper in the captive’s bedchamber. The literature has become even more sensational than the life that Napoleon lived (Weider and Forshufrud, 1995; Weider and Hapgood, 1982; Richardson, 1974). Treaty Practice. It was in the mid-17th century that the ﬁrst treaty compilations began to appear. These data collections made it possible for scholars to focus on patterns of treaty-making, to organize their own national treaty-related informa-

Constructing the Imperial World-system (1618-1815)

tion, and to undertake accurate empirical and comparative studies. Some positivists, chieﬂy interested in evidences of formal state consent, were encouraged to present the law of nations as auxiliary to the diplomatic tasks of making and maintaining international agreements. The entry of the United States on the world stage in the late 18th century was an important event in the history of international law. Not least it was important because the new nation was shortly to make a unique contribution to the procedure of treaty ratiﬁcation and accession. Probably not many outside the United States are aware of the origins of the provision in the US Constitution that requires a two-thirds vote of approval by the Senate before a treaty negotiated by the executive branch of government can be submit to the President for ratiﬁcation or accession. Canadians, as the Americans’ most frequent treaty partner, are particularly conscious of the dislocating eﬀect of that provision on bilateral diplomacy with the United States, and the international community is now more aware than ever of the domestic political diﬃculties that so often impede the entry into force of global treaties within the United States. The origin of that uniquely anomalous feature of the US Constitution, which has caused so much frustration over the years and damaged the country’s reputation as a “world citizen state”, lies in the career of John Jay (1745-1829). A rising star in the legal profession, Jay was appointed by Congress in 1779 as minister plenipotentiary to Spain, which had just entered the War of Independence as an ally of France. It was hoped that Jay could persuade the Spanish government to join the Franco-American alliance of 1778. He was authorized to guarantee the Floridas to Spain in return for a loan of 5 million and the grant of free navigation of the Mississippi River, which was of considerable strategic and commercial value to the young nation. The mission failed, even after withdrawal of the Mississippi claim, and Jay succeeded only in raising a small Spanish loan of 150,000. In 1782 the young lawyer diplomat was assigned to Paris, where he was instructed by lawyers to do nothing without the “knowledge and concurrence” of the host government, whose alliance with the Americans was highly valued. But Jay, distrustful of the French, opened secret negotiations with the British entirely on his own initiative and in clear violation of his instructions. Jay’s initiative was successful beyond anyone’s expectations. In November 1782, in the company of Benjamin Franklin and Henry Laurens, he signed preliminary articles of peace, which, almost unchanged, because the substance of the ﬁnal settlement between the two former adversaries in the 1783 Treaty of Peace. By general assent, the concessions by the British were surprisingly liberal, but many in France regarded the treaty as a betrayal. When he returned to Washington, Jay found that in the meantime he had been appointed Secretary for Foreign Aﬀairs, a new oﬃce of uncertain status. After some initial hesitation, he began to develop that oﬃce as a powerful instrument of central government. In that capacity, he negotiated, this time successfully, an agreement with the Spanish that involved a temporary waiver of American claims to the Mississippi. The Southerners were furious at being sold down the river, and made it their business years later to incorporate into the US Constitution the infamous two-thirds majority

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rule with a view to maintaining legislative control over the executive’s powers in the ﬁeld of foreign policy, especially in matters pertaining to foreign trade. In 1789 the constitution of the United States oﬃcially came into being and the ﬁrst federal government was elected under President Washington. One of the general’s ﬁrst appointments was that of John Jay as the ﬁrst chief justice of the United States, but his most famous role in early US treaty relations had still to be played out. While still on the bench, Jay was appointed envoy plenipotentiary to negotiate an important commercial treaty – a “treaty of amity, commerce and navigation” – with Great Britain. This was a risky appointment, assigned to an envoy who had proved to be his own man, but Washington was under pressure from Congress to adopt retaliatory measures against the British, who were continuing unfriendly military activities on the northwest frontier. The negotiations in London resulted in the signing of the famous treaty of 1794 that was to bear Jay’s name. Although the Jay Treaty did not resolve all issues between the parties, it did fulﬁll the primary purpose of averting a renewed war with Great Britain at a time of crucial nation-building. At that time, the Federalist Party, led by Alexander Hamilton and John Adams, was striving, against determined opposition, to build a strong central government under the constitution of 1787. A treaty with Great Britain was considered essential by the Federalists, and President Washington agreed. In the Federalist cause of strong central government, three leaders were especially inﬂuential: Jay, Madison, and Hamilton. It was the youngest of them, Hamilton (17551804), who played the most inﬂuential role in the late 1780’s and 1790’s in developing the new nation’s reputation as a keeper of its treaty commitments. Hamilton was well versed in the literature on the law of nations – perhaps more so than any of the other Founding Fathers. As chief author of the inﬂuential Federalist Papers, he frequently invoked the authority of such writers as Grotius and Pufendorf, and especially of Vattel. In one of these essays, Hamilton denounced the state of New York for its conﬁscatory legislation directed against the remaining Loyalists: a ﬂagrant violation of the amnesty provisions (Articles 5 and 6) of the 1783 treaty between Great Britain and the United State. For Hamilton, as for Vattel, the state was a “moral person”, an ampliﬁcation of the individual: “so many free persons living together in the state of nature” (Helfman, 2002). The state’s promises had the binding force of sanctity” pacta sunt servanda. A state that does not observe its treaty obligations in good faith becomes an enemy to its treaty partner, and to all others, “for to break one’s treaty is to mock the sacred object of all civil society: peace and tranquility”. The dereliction of New York state was embarrassing, for reasons summarized by Helfman. “Not only had Britain turned over all the territory of which the thirteen colonies had originally consisted, not only had she conceded to her former colonies abundant ﬁsheries, valuable frontier posts and rich fur-trades, but she had also yielded a vast tract of western territory to which the colonies could make no legitimate claim. All the United States gave in return was a promise not to do any future harm to those who had supported Britain during the war”. This promise was a modiﬁed version of the standard amnesty clause that had been common to virtually all treaties of peace since the early 17th century. Hamilton was outraged: “How insigniﬁcant the equivalent in comparison with the acquisition … A man of sense would be ashamed

Constructing the Imperial World-system (1618-1815)

to compare them. A man of honesty, not intoxicated with passion, would blush to lisp a question of the obligation to observe the stipulation on our part”. The sins of New York were visited upon the federal government, which alone represented the United States before the international community as a subject of international law. In the decades since then, the treaty practice of the United States, more than that of any other, has demonstrated the horrendous legal and political diﬃculties that can arise within a global system consisting of a majority of unitary states and a signiﬁcant minority of federal states, several of which are almost as prominent as the United States as actors on the world stage Final Reflections The political landscape of international law was transformed in the 17th and 18th centuries. As the geography of dynastic and corporate ambitions expanded over four continents, and eventually into the ﬁfth, the vision of a world legal system became less fanciful, at least in the eyes of idealists in that stage of world history. But the gap between utopianists and realists widened, as the ﬁrst two centuries of modern interstate relations in the Western world were devoted entirely to national acquisitive interests. In the foreign policy operations of the European imperial powers, there was still no bureaucratic assurance that legal considerations would be part of government decision-making, neither of a routine nor of a more critical nature. We are not yet in the age of foreign ministries equipped with legal secretariat, and legal advisers. On the other hand, bilateral treaty-making in 18th century Europe was becoming stylized. Certain features of peace treaties, such as amnesty clauses and ratiﬁcation requirements were becoming standardized. It was more generally accepted by the end of the 18th century that treaties were generative of solemn legal commitments between states rather than between sovereigns, although the mystique of personal sovereignty still held its appeal in many cultures. It might appear that the “concept of Europe” phenomenon was about to inaugurate a new era of multilateral conference diplomacy that would give a central role to professionalized government oﬃcials, but the congresses of Europe were still run by small, mostly aristocratic, elites that generally deferred to the will of their sovereign. Sovereigns of that era were almost exclusively practitioners of Realpolitik. Treaties they could make they could also break, if national advantage lay heavily in the scales. Writers wrote of the sanctity of treaty obligations, but had relatively little inﬂuence on the conduct of high-level foreign policy. Yet we can see, looking back from a later age that gives emphasis to the ethical role of international law, that the 17th and 18th centuries were foundational in Western intellectual history. The philosophes and literati of Europe and America, mostly Protestant or secular in spiritual orientation, were engaged in seminal inquiries and ethical theories that would have a lasting inﬂuence on the evolution of world society in succeeding generations. In our own age of international ethics in the ﬁelds of human rights, environmentalism and humanitarianism, we recognize in the Enlightenment the seed-bank of contemporary thought and conscience.

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So the principal contribution of the 17th and 18th centuries was in the reformulation of the civic enlightenment model of international law by Western intellectuals. In state practice, national autonomy was exalted at home, but not as a value to be widely shared beyond the periphery of European “civilization”. The goals of state independence and aggrandizement were elevated above the level of international cooperation, which was still the weakest of sentiments. Dreamers dreamed of international assembles, but these fantasies lacked the substance of a political project. Only in the sector of prize law can we discover any interest at all in the Mansﬁeldian prospect of a convergence of civil and common law judicial systems. Napoleon had re-introduced the practice of legal codiﬁcation at the national level, but it was too early to imagine the future of codiﬁcation at the international level. Disputes were settled by force or diplomatic leverage: there was still minimal interest in the use of impartial third party adjudicators or mediators. It was a period of remarkable potentiality, but the great achievements of world community construction still lay in the future.

8 The Ruling of the Modern World (1815-1905)

Empire and Progress In the eye of world history, the arrival of the 19th century held no particular signiﬁcance. The year 1800 brought no sense of a crossing over. In Asia, China stayed locked in the dual (Manchu-Han) system of rule of the Ch’ing dynasty, still unresponsive to foreign stimuli. The great emperor Chien-lung (1736-1795) had died and no successor of comparable magnitude was in sight. In Japan, under the Tokugawa shogunate, the feudal class had become outmoded. The samurai had been converted from warriors to salaried soldiers and bureaucrats, “arrogant by tradition but frustrated by poverty”, but there was little sense of moving forward (Fairbank, Reischauer and Craig, 1965). India had barely begun to feel the impact of the Raj. The tradition of Spanishness in South and Central America was as strong as ever. The teaching of the Spanish missionaries was still accompanied by the cadences of European – mostly Italian – baroque. Alexander von Humboldt (1769-1859) was just beginning to make the rivers and coastal waters of the region known to all. He had not yet begun to expound the cause of liberalism that would eventually inspire the liberator Simon Bolivar ( 1783-1830). But the old empire had lost the vigor to arrest the impulse of revolutionary change. In the United States the revolution had been won. In the ﬁnal month of the 18th century George Washington had died, “ﬁrst in war, ﬁrst in peace, and ﬁrst in the hearts of his countrymen”. The complexity of the American electoral system was revealed in the following year with a near-impasse in the presidential election, manoeuvred into the House of Representatives. Thomas Jeﬀerson squeaked through and shortly thereafter swore “eternal hostility against every form of tyranny over the mind of man”. A black insurrection in Virginia resulted in the execution of its ringleaders by order of Governor James Monroe. In 1799 Mungo Park published his “Travels in the Interior of Africa”. Yet most of the sub-Saharan region of the continent remained unknown to the outside world, a political vacuum about to draw in a stream of adventurers, traders, and empirebuilders. The distant waters of the Paciﬁc were becoming more familiar through remarkable feats of surveying and charting. The lands and archipelagoes of the Paciﬁc were half-empty spaces, awaiting the imprint of Western presence. It was Europeans, everywhere, who were dominating the scene and setting the agenda.

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In Europe, Napoleon, now First Consul, was on the march and taking care of the Turks. Only the British Navy, now established in Malta, seemed ready to block his path to the conquest of Europe. Adam Smith had died in 1790, leaving a totally new vision of the possibilities of economic growth. In 1799 Haydn created “The Creation”, and in 1800 Beethoven’s First Symphony had its ﬁrst performance in Vienna. Even in the years following the defeat of Napoleon it was not all obvious that the world was on the brink of momentous and permanent change. The tyrant had been overthrown, but there was little energy left from the ideals of revolution and liberation. The sparks from the anvil were extinguished. Pragmatists, realists, and reactionaries were again in vogue. In retrospect, however, we see that the West in 1815 was simply recovering its breath before embarking on an unparalleled age of conquest and imperial rule. In this new age, no shorelands would be beyond the high tide of colonization. The signiﬁcance of new power and wealth lay in its universal reach. It would become easier than ever to envisage a global society. By the end of the Napoleonic Wars, French imperialism had been curbed in North America, the Caribbean, and parts of Asia, but soon much of North and West Africa would be brought under French political and cultural inﬂuence. Spain was no longer a major power, but after the demise of its empire in the 1830’s its cultural dominance in the countries of South America remained: their economies urban, their governments strictly centralized, and their peoples devoutly Catholic in the Spanish style (Fernandez-Armesto, 2003). The Dutch and Portuguese empires were also in decline, and yet survived, resistant to radical change because of the commercial beneﬁts derived from their overseas possessions. However, none of these four imperial orders came close to matching the size and power and wealth of the British Empire. Encompassing nearly a quarter of the Earth’s land mass and a quarter of its population, the British Empire in the 19th century grew into the most extensive empire the world has ever seen. The story of that dynamic period is preeminently the story of British ascendancy throughout the ﬁve continents. Both rightly and wrongly, creatively and repressively, the British were at the center of civic aﬀairs within the vast territories under their ﬂag. In the words of Jan Morris (Pax Britannica), the British became the “arbiters of world aﬀairs, righting a balance here, dismissing a potentate there, rimming the earth with railways and submarine cables, lending money everywhere, peopling the empty places with men of the British stock, grandly revenging wrongs, converting pagans, discovering unknown lakes, setting up dynasties, emancipating slaves, winning wars, putting down mutinies, keeping Turks in their place and building bigger and faster warships”. With “impulses shady and honourable, pagan and pious”, the British Empire in the ﬁrst half of the 19th century was a distant and somewhat dubious reality to most of the people back home. By the end of the century it “excited the instincts of the [British] people for space, power and sacramental dazzle”, demonstrating the rightness of their claim to world leadership and imperial possession through the beneﬁts conferred on the “ignorant heathen of the tropics, only awaiting redemption”. No people since the ancient Romans had exhibited such conﬁdence in themselves, or such willingness to endure the heat and pestilence of remote places.

The Ruling of the Modern World (1815-1905)

Sixty-four of these ninety years were the years of Victoria’s reign. Unlike her empire, the Queen herself was small and rather dumpy. In private she was sentimental, even passionate, and rather vulnerable, but she mustered an impassive public personality that expressed the calm British acceptance of the Empire’s pivotal role in world aﬀairs. She was a Victorian. Yet she lacked any striking qualities of greatness in intellect, personality or imagination. She was no threat to those who pulled the levers of power behind the throne. She became an empress in 1837 before her 19th birthday, drawing Thomas Carlyle’s pity for his “poor little Queen ... at an age at which a girl can hardly be trusted to choose a bonnet for herself; yet a task is laid upon her from which an archangel might shrink”. By the end of her long reign in 1901,- the longest in British history – she had attained the highest pinnacle of royal dignity, her name forever connoting the ultimate status in power and respectability. It would be diﬃcult to overstate the extent of British inﬂuence in the late 19th century, when the Royal Navy ruled the sea lanes of the world. “Everywhere British ships could berth in British harbours, stock up with British coal, replenish their supplies of British beer or biscuits, paint their hulls with British paint, pick up their instructions from British cable stations beneath the protection of British guns” (Morris, Pax Britannica). Authority and assurance ﬂowed outwards from London, “a self-consciously imperial city”, to a “wild jumble of territories”. The Empire was provisioned through shipping stations created for that purpose: Aden, Bermuda, Esquimalt, Gibraltar, Halifax, Hong Kong, Malta, Singapore, St. Lucia, and dozens of other lesser ports. Great Britain had learned that by ruling the waves it could rule the world (Herman, 2004). In our own time, when governments are oppressed by the scarcity of “strategic resources” – previously salt, sugar, coal and iron, but now oil – naval ascendancy is once again the key to economic success (Moodie and Cottrell, 1981). The period of world rule dominated by the British Empire outlasted the reign of Victoria for less than a generation. The Anglo-Boer War (1899-1902) in South Africa was the last truly colonial war. It underlined the weaknesses of an overextended empire, introduced “concentration camps”, and demonstrated the potential eﬀectiveness of guerilla tactics against a professional standing army. The Russo-Japanese War (1904-1905), which ended disastrously for Russia, one of the major powers of Europe since 1815, marked the emergence of Japan, the ﬁrst non-Western imperial power of the modern era. The Treaty of Portsmouth (1905) drew Korea into Japan’s acknowledged sphere of inﬂuence. These events were quintessentially of the 20th century. The year 1905 might, then, be taken as the end of the 19th century. This ruthlessly acquisitive period of imperial history coincided with an era of unprecedented material progress. Was imperial stability a precondition of general advancement (Ferguson, 2002)? Especially because of break-through discoveries in the sciences, the 19th century was a period of acceleration in almost all sectors of human aﬀairs. Although the cause of political revolution faltered for thirty years, the aspirations of many after the peace of 1815 were re-shaped by other kinds of revolutions. The human imagination was reordered by the promise of remarkably innovative technologies in transportation, communication, farming and industrial manufacture. New realities were to emerge

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out of new images of the world: of a vastness now accessible. Material rewards would accrue to those in the service of bold and conﬁdent imperial powers. The speed of modern transformation since 1815 is surely the most astounding feature of world history. The earlier invention of the spinning mule by Samuel Crompton (1753-1827) and of the power loom by Edmund Cartwright (1743-1823) made cotton clothing available to all, very nearly overnight, in the early 19th century. These improvements had introduced a totally new era in production through the factory system. The invention of the steam pump by Thomas Savery ( c. 1650-1715) into an engine, its development by Thomas Newcomen (1663-1729) and by James Watt (17361819), and its application by Richard Trevithick (1771-1833) had enabled rail engineers like George Stephenson (1781-1848) and his son Robert (1803-1859) to transform the entire conception of land transportation between 1781 and 1825. These advances led to insatiable demands for coal and iron, wherever these newly strategic resources could be found. By 1830 Isambard Kingdom Brunel (1806-1859) had provided the blueprint for the modern steamship. Colossal feats of enterprise such as these resulted in the networking of all ﬁve continents throughout the middle third of the 19th century. The dominance of a coal-steam-and-iron world economy either promoted or relegated every location on land or at sea, under the new imperial assessment of its intrinsic worth. Yet in the 1880’s another generation of even more transformative discoveries was to send the world economy spinning in other directions. Through the development of steel, the application of electric power, and the generation of energy from oil and gas, the inter-connected populations of world society would now be lit and heated unto eternity – or down to the natural limits of the world’s supply of fossil fuels (Bowle, 1977). Journals and diaries of the early 19th century show that many ordinary people of that era were beginning to make personal career decisions based on much more optimistic expectations about the future than their parents and grandparents would have entertained (Ferguson, 2002). Specialists in intellectual history might argue that this forward-looking trend was begun in the second half of the 18th century, when writers were advancing “enlightened” ideas framed around the ideals of democracy, liberalism, and constitutionalism. It was in that period of progressive thought that the anti-slavery movement took root, that women’s rights ﬁrst became a serious political demand, that philanthropy surfaced, and that serious claims for political and legal reform were introduced into parliamentary debate (Roberts, 1997). Especially in Europe, it was now generally sensed that life might have a forward direction; it was not just an endless process of maintenance, but an opportunity for advancement. Individual belief in the possibility of human improvement might indeed have laid the psycho- cultural foundation for the renewal of imperial capture and colonization in the 19th century. Popular conﬁdence in belonging to a more progressive civilization may have contributed to the moral blindness associated with Western exploitation of vulnerable peoples overseas (Roberts, 1995). Yet the history of 19th century imperialism also owed much – and possibly more – to the rapidly mounting evidence of progress.

The Ruling of the Modern World (1815-1905)

The foundations of Western culture in the 19th century were unmistakably European. At least up to the 1880’s, it was Europe that provided the ﬁrst kind of world leadership. It led in almost every ﬁeld of endeavor: in science, technology, commerce, medicine, education, philanthropy, sports, newsgathering, and the arts. Invariably, it was the relatively compatible societies of the British, French, German, Italian, Dutch, Scandinavian, Iberian, Russian, Polish, and other European peoples that created higher standards for “world society”: in knowledge, skills, healing, trading, teaching, caring, competing, and creating (Barzun, 2001). Europeans who went out into that braver world did so in the conﬁdence that they were moving forward. Personal advancement could be justiﬁed by the belief that they brought leadership to lesser cultures. Their imagined role as bearers of “civilization” was to improve, as much as to exploit, the world beyond their continent. Roberts (1995) has suggested that we envisage three concentric circles of that “civilizing” process. The innermost was Old Europe itself, which had prospered enormously through unparalleled achievements in trade and technology. The inventions of the Industrial Revolution had created a spirit of enterprise that encouraged hundreds of thousands of Europeans to seek their fortune overseas. Underground mineral deposits and cheap textiles and foods had become the muscles of a robust, internationalized, modern economy. The extractive industries were its principal agencies. The European economic revolution that began with the spinning jenny followed a course of other remarkable, history-altering accomplishments: the discovery of electricity, the building of automobiles, creating eventually the spiraling need for oil, and the necessity for a system of universal education based on technical skills. The second circle of Western civilization consisted of the European cultures transplanted overseas: the white majority cultures of the United States, Canada, Australia, and New Zealand, and the dominant white minority cultures of Southern Africa and South and Central America. In varying degrees, these extensions of the Western world exhibited the aggressive conﬁdence of Europe and the determination to prosper and advance, whatever the eﬀects might be on their indigenous fellow citizens. Those transplanted societies shared the standards and aspirations of Europe, the values and beliefs of Christianity, or, more broadly, the dynamism of the Judeo-Christian ethic. Moreover, their broad fertile domains could feed Europe more cheaply than Europe could feed itself. At the third level, Western-style success was admired and emulated in many of the countries colonized by the European powers. In Southeast Asia, on the Indian subcontinent, throughout Africa, and in almost all the islands of the Paciﬁc and Indian Oceans, Western policies of conquest and control were usually rewarded with massive acquiescence. Through the constant threat of military force, and its occasional use to put down challenges, Western-type institutions sprang up everywhere, more or less adapted to local conditions. Most of the outer rim acquired European schools, hospitals, churches, concert halls, law courts, and policemen. For Paul Johnson (1991) and many other historians, the “modern world” was born in the aftermath of the Napoleonic Wars. Despite its enunciation of high ideals, the 18th century sits in our mind as a world of privilege and powdered wigs, alien and inept. It is the 19th century that carries the seeds of almost everything we regard as

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modern, especially in matters of government, law, and diplomacy. It was only after the all-conquering French Empire had been overcome by an alliance of rival states that the continent was ready to return to the building of peace and civic order. To the French, Napoleon had represented a kind of national greatness that one gifted and magnetic leader could imagine and then bring into being. To many, outside as well as inside France, his was a romantic and glorious vision of a future for world society that would be liberated from tyranny, and especially from the oppressiveness of royal and aristocratic privilege. But the great liberator’s vision of a reformed society had been discovered to be a projection of his own, exceptionally ruthless, ambition. The Sinews of Great Power Diplomacy In the 1980’s an American diplomat retired from the domain of US foreign policy operations to reﬂect on the under-noticed ethical dimensions of international relations. He perceived in European foreign ministries a tendency to be detached from the “morality business”. On that continent, he suggested, “the British see themselves – conveniently enough – as embodying both the moral and the utilitarian aspects of foreign policy, while the French aﬀect to dispense with ethical considerations entirely, and the Germans have evolved from Realpolitik to a prudent pragmatism” (Walden, 1988). Questions. How, if at all, was a balance struck between moral and amoral approaches to inter-state aﬀairs in Europe in the three decades following the overthrow of Napoleon? Was European foreign policy at that time exclusively a matter of competitive national interests? To what extent was there a shared sense of common interest? To what degree did this period of Great Power diplomacy contribute to the development of international law? The Congress of Vienna (1814-1815). The Congresses of Munster and Osnabruck of 1648 are often credited with the reconstruction of the European state system at the end of the Thirty Years’ War. As we have noted, these treaty-making conferences have been endowed by many historians with foundational signiﬁcance both in the history of conference diplomacy and in that of international law. The Peace of Westphalia that ensued is said to have marked the establishment of the principle of territorial sovereignty as the cornerstone of the modern system of international relations. Yet the conﬂicts of the following century and a half proved the fragility of these foundations. A succession of congresses and treaties of alliance, partition and settlement, all intended to create a balance of power on the continent of Europe, failed to discourage struggles for power and territory. Even Czar Alexander I, who was originally attracted to projects of perpetual peace, discovered that considerations of Russian national interest forced him too into the competitive game of European Realpolitik. At ﬁrst it seemed that he and Napoleon might have achieved joint ascendancy under the Congress of Erfurt (1808), but by 1811 the friendship had chilled, and the French Emperor was emboldened to invade and waste the lands of the Czar’s dominion, with well-known consequences.

The Ruling of the Modern World (1815-1905)

By the beginning of 1814 it had become clear that victory over Napoleon would be possible only through the formation of an uniquely eﬀective coalition led by the major nations in opposition to him: Austria, Great Britain, Prussia, and Russia. What emerged was not only a combined military force but also a series of treaty settlements and other instruments intended to reconstitute the inter-state system of Europe. In March of 1814 the four Great Powers, assembled at the Congress of Chatillon, signed the Treaty of Chaumont. This defensive alliance was designed to create a geopolitical corrective through a new balancing of power in Europe. If any of the parties was attacked – by France or any other state – the others were committed to come to their aid. It was agreed that a large pool of military personnel – a transnational army reserve – was necessary to enable the peace to be enforced. Later in the year, the Congress of Vienna was convened. Under the First Treaty of Paris (1814) all wars of conquest were condemned and it was agreed to keep the Congress in operation to supervise the making and keeping of peace on the continent. Napoleon renounced all claim, for his descendants as well as himself, to the Empire of France and the Kingdom of Italy. In return, he was generously treated by his enemies: he was allowed to retain the title and style of an emperor; the island of Elba was converted into an independent principality as his personal ﬁef; and an annual income of 180,000 pounds was endowed upon him (Petrie, 1948). France was returned to its boundaries of 1792. No indemnity was imposed on the nation that had been the scourge of Europe for a generation. Louis XVIII lost little honor in attaching his signature to this pact. After Napoleon’s escape from Elba, but before his ﬁnal defeat at Waterloo, the Great Powers conﬁrmed their commitments as allies under the Second Treaty of Paris (1815). Napoleon’s reappearance as the disturber of the continent had resolved much of the discord among the Eight Powers that had signed the First Peace of Paris. After his defeat at Waterloo and his second abdication, the restoration of the Bourbon dynasty was conﬁrmed “under the shadow of an armed foreign intervention”. By this second treaty of settlement, France lost nearly all it had gained under the ﬁrst, and an indemnity of several hundred million francs was imposed. No attempt was made to reinstate the Holy Roman Empire of 300 polities. Instead there arose a new Germanic Confederation, which consisted of 35 sovereign or quasi-sovereign entities and four “free cities”. Before the end of these negotiations, another instrument had been signed by Austria, Prussia and Russia, at the urging of Czar Alexander I. All the rulers of Europe were invited to join this “Holy Alliance”, which was intended to create an international community of Christian nations. Great Britain declined to join, ostensibly on constitutional grounds. France was admitted, though this was not disclosed until 1818. Other belligerents engaged in the same anti-Bonapartist cause, such as Sweden, Denmark, Spain and Portugal, were to be admitted to the new regime that historians would later describe as the “Concert of Europe”. There was little doubt, however, that the Great Powers were determined to control the outcome, despite their lack of any special legal authority, as protested by Prince Charles Maurice de Talleyrand (17541838), the French plenipotentiary.

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The Congress of Vienna was conceived on a lavish scale. It was a great social event, bringing together the grandest lords and ladies of Europe. The host government was already close to bankruptcy after two decades of ruinous hostilities, but the prestige of the occasion proved irresistible. Between 200 and 300 carriages of the Austrian Empire were pressed into daily service to the dignitaries in attendance: the Prince of Orange, the sovereigns of Prussia, Denmark, Bavaria and Wurtemberg, several German Electors and Grand Dukes, numerous lesser princes, and representatives of the major ﬁnancial houses. Much wealth was at stake with the prospect of peace and stability( Marriott, 1936). Yet, despite the facade of extravagant frivolity, the Congress was to prove a landmark in the political history of Europe. France, the defeated aggressor, was confronted by Europe’s strongest states, represented by the continent’s ablest ministers: Prince Clemens von Metternich (17731859) for the Austrian Empire, Viscount Robert Castlereagh (1769-1822) for Great Britain, Prince Karl Hardenberg (1750-1822) for Prussia, and Alexander I himself for Russia (Lockhart, 1934). The Congress, powered by these formidable personalities, transformed the map of Europe. Over one hundred clauses were devoted to territorial redistribution and related matters. France was excluded from the Low Countries and the Rhine. Most of what is now Belgium was united with the Netherlands. Denmark was deprived of Norway, which was awarded to Sweden as part of the deal that had brought the Swedes into the coalition against Napoleon. Great Britain, honoring Pitt’s promise, returned Java and other East Indian acquisitions to the Dutch, and returned the sugar-rich island of Guadeloupe to the French. Prussia, which had played an important military role in the collective resistance to Napoleon, was rewarded with territories on the southern reaches of the Rhine, but France was allowed to retain Alsace-Lorraine. A large part of Poland, including Warsaw, was carved out and gifted to Russia, which promised to install a Polish king and a national constitution. Spain and Portugal recovered their old boundaries. Subject to many adjustments, the general notion behind the system of allocation was to secure the pattern of territorial possessions that had emerged in 1805. The most conspicuous exceptions were the very substantial gains for Russia and the repatterning of Prussia. To later generations accustomed to the prerogatives of national identity, the so-called “Treaty of Vienna” is a remarkable display of moral indiﬀerence to such considerations. National injustice was particularly acute in the case of the smaller countries of the continent that had become victims of the new ethos of Great Power politics; such as Belgium and Norway, who risked losing their identity in their forced amalgamation with the Netherlands and Sweden, respectively. The overriding rationale was that all other values had to yield to the supreme necessity for international order. To understand this clearly perceived priority, we have to recall the horriﬁc catastrophe from which Europe was only now recovering. The previous two decades had been an endless nightmare of disorder throughout the continent. Millions of lives had been lost or ruined as a result of unchecked dynastic ambitions. Everyone agreed that it must never be allowed to happen again. Sadly, both rulers and advisers diﬀered on cause and cure. Most of the rulers of Europe were monarchs possessing, or seeking, the highest attainable degree of personal

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authority. Some had been obliged to accept the new necessity of sharing power, in some degree, with the people’s parliamentary representatives. However, three of the most powerful states – Austria, Prussia and especially Russia – were totally opposed to the modern enthusiasm for democracy and constitutionalism that was seen to have weakened the legitimacy of monarchy, notably in Great Britain, France, the Low Countries, and the kingdoms of Scandinavia. To the three most ardent Great Power defenders of the Old Order, the disasters of the recent past were directly attributable to the disease of popular revolution and reform. Cure lay in the re-imposition of order by force or coercive diplomacy under the aegis of the New Alliance. To others, the problem lay in the absence of an international mechanism designed to preserve a balance of power. By this reasoning, it was in the interest of each of the Great Powers to oﬀset any eﬀort by the others to achieve any lasting supremacy, or even primacy, within the system of European states. Critics complained that the logic of this position put a strain on the tradition of alliances and enmities, seeming to place the need for order-through-balance ahead of loyalties, principles and commitments to ideals such as that of constitutional government. The need for balance at all costs introduced the chilling prospect of wholly amoral strategic calculation into foreign policy-making. On the other hand, even if constitutional government, in one form or another, seemed the best assurance of order at the national level, the case could be made against constitutionalist intervention elsewhere on the ground that such initiatives did not serve the goal of international peace, order and security. After the Napoleonic Wars the stage was set for a half-century of struggle between “legitimists” determined to preserve the legitimacy of monarchical government and “realists” or “pragmatists” who accepted the role of popular sentiment expressed in reformist ideas and revolutionary actions. Between these two views of the world, Europe was to remain conﬂicted for several decades, but in the meantime continental policy issues had to be confronted. In 1817 Metternich proposed that the Four Powers should meet annually to supervise the maintenance of a general peace, but this was not adopted. Yet there was lasting signiﬁcance in the idea of an international peace regime based on the various treaties that had emerged from the system of congresses. The Great Powers would control the system, but the lesser states were to be admitted if their concerns or interests were placed on the agenda. Further congresses were convened, but in the end the Concert of Europe broke down under diverse suspicions and pressures in the 1820’s, rendered dysfunctional by the irrelevance of the original purpose of combatting French militancy (Kissinger, 1964). In the end, the Concert of Europe was a failed experiment in peace, but the attempt was of historic importance because it was initiated in the arena by the powers with the greatest capacity to disturb the peace. Despite the failure, it reﬂected an ideal that has persisted through subsequent generations of distrust. Cynics like to point out that even Napoleon, the greatest disturber, spoke in its favor. On his escape from Elba, he insisted upon his commitment to “a great federated European system, which we had adopted because it conformed to the spirit of the century and favoured the advance of civilization”. Incarcerated later at St. Helena, he regretted that he had not succeeded in founding a “European system” with its own “Congress and Holy Alliance”, one single currency, one system of weights and measures, one supreme court,

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and a common code of laws. Like the world-state envisaged by Alexander the Great, this European system would surely have been controlled by its manipulative architect. Despite its eventual collapse, the Concert of Europe did last for two generations as the framework for inter-state relations in Europe. Even the Holy Alliance, ridiculed by political realists, continued as a reﬂector of the idealists’ yearning for international unity. Some historians have seen in the regime, stripped of theological bias, the forerunner of the secular and global League of Nations (Verosta, 1984). The Germanic Confederation, creature of the Congress, was to solidify as the vehicle for German nationalism. In light of the catastrophes of the 20th century arising from the “German question”, the “men who made Germany after the fall of Napoleon certainly wrought more than they knew” (Petrie, 1948). The Concert of Europe has not fared well in the minds of political realists. Harold Nicolson (1946), for example, has declined to honor idealistic advocates of the day such as Castlereagh, who described the Concert as “the great machine of European safety”. For Nicolson, such a conception was fallacious, because it underestimated the force of “inevitable” change: by exaggerating the general need for “repose”, Castlereagh, he charged, “sought to enforce static principles upon a dynamic world ... He failed to realise with suﬃcient clarity that an Alliance based upon the maintenance of the existing order could not preserve its unity in a Europe in which interests and ambitions were in a state of constant ﬂux”. Nicolson’s point might be taken, but he was writing before he could consult the evidence of an increasingly integrated and peaceful Europe after the Second World War. The Pitt Legacy in British Diplomacy (1783-1827). With a view to the stabilizing eﬀect that international law is expected to have on international relations, how should we take sides between the advocates of stability and change? This essentially was the perennial dilemma confronting European power politics in the early 19th century. It is a dilemma that deserves examination in the foreign policy context of the rising superpower. After the War of American Independence, British foreign policy had suﬀered an embarrassing loss of prestige. Up to the mid- 19th century, however, Great Britain continued to grow in conﬁdence as the world’s leading military and economic nation. It was the British government from William Pitt the Younger (1759-1806) to George Canning (1770-1827) that undertook the most inﬂuential experiments in Great Power diplomacy. The principal practitioners of the pragmatic (partly moral, partly amoral) approach in that era were these British Foreign Secretaries who had the greatest impact on world (as distinct from European) events. Their contributions were mostly personal, for their bureaucratic subordinates were still few in number, and not yet suﬃciently professional or institutionalized, to shape foreign policy or direct the course of British diplomacy. After the War of American Independence, it had become necessary for Great Britain to discover a realistic line of foreign policy that would stamp its inﬂuence on the world without falling victim once again to the temptations of imperial overreach. The French Revolution of 1789 oﬀered a new kind of challenge to foreign powers., tempting them to take advantage of the deep discords in Paris. But in London those stir-

The Ruling of the Modern World (1815-1905)

ring events provoked relatively little condemnation – surprisingly little in a country mostly loyal to the principle of monarchy. Liberals like Charles James Fox (1749-1806) saw a parallel with England’s own Glorious Revolution of 1688. Pitt himself felt that the convulsions in France “must, sooner or later, terminate in harmony and regular order”, rendering that country “less obnoxious as a neighbour”. The unsettled situation called for a British policy of studied neutrality. By 1791 it was agreed in London to abstain from any monarchist movement on the continent to come to the aid of the Bourbon line, despite the growing confusion in Paris. Pitt, it might be said, could aﬀord to be generous to an old enemy, whose body politic now seemed stricken with paralysis (Mori, 1997). In retrospect, of course, we can see that Pitt was much too sanguine. Gradually it became apparent that the revolutionaries in France had embarked on a new course in the conduct of inter-state relations (Ehrman, 1983). The old elite that had maintained the tradition of secret diplomacy was now open to challenge by the people’s representatives. The ratiﬁcation of treaties in France would no longer be a discreetly veiled procedure. With the politicization of foreign aﬀairs, the new legislators in the French Assembly were determined to scrutinize instruments negotiated by the Executive. Existing treaties might be revoked. The rest of Europe, however, was uncomfortable with the idea that a bourgeois revolution entitled the successor regime to free itself from any existing treaty obligations that it chose to discard. The doctrine of state succession had not yet crystalized, and there was very little support in that pre-Marxist era for the proposition that the “people” had rights that transcended the obligations of a state (Schweisfurth, 1983). Pitt remained committed to a policy of pragmatic diplomacy, calculated in terms of mutual beneﬁt, despite growing anti-French sentiment in the British political system. Pitt’s Foreign Secretary, Lord Leeds, had belligerent inclinations, along with most of the British public. Pitt followed his own instincts and declined to join the other monarchies of Europe in their war against France, perhaps contributing to Napoleon’s misperception more than two decades later that the British were inherently a fairminded people. Facing down the general mood, Pitt replaced Leeds with his ﬁrst cousin, William Wyndham Grenville (1759-1834), who was the youngest son of the former prime minister and had become Baron Grenville in 1790. At that time he was Home Secretary and Speaker of the House of Common, but he had acquired some diplomatic experience in 1787, when he was sent to France on a mission to discuss questions relating to Holland. Moreover, as President of the Board of Control, he had had responsibilities for British policy in India. Grenville was essentially a paciﬁst, and an ally of the liberal Charles James Fox. On domestic matters he was often at odds with the more conservative Pitt, but in foreign policy he was able to work with the conciliatory prime minister. Pitt was anxious not to provoke the French revolutionaries unnecessarily, but neither he nor his paciﬁst colleague could prevent a realignment of British policy against the French after their annexation of Savoy in breach of their treaty obligations. Grenville was a man of some ability. After losing both parents as a boy – his mother when he was only ten, and his father a year later – he had been sent by his family to Eton and then to Christ Church. There, at Oxford, he revealed scholarly talents,

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but he was not greatly attracted to the legal profession despite frequent attendance in court to hear the great Lord Mansﬁeld in action. Unfortunately Grenville seems to have inherited his father’s temperament. According to Jupp (1985), he was “disliked and often loathed for his obstinacy and prolixity, for his seeming insensitivity to the feelings of others and for his unshakeable conﬁdence in his own judgement”, even if in private life he seems to have been an aﬀectionate and easy-going family man. Perhaps because Pitt did not have a generous reservoir of talent to draw upon, Grenville was brought into the Foreign Oﬃce in 1791 at the age of 32, after the formidable Henry Dundas had rejected an earlier oﬀer. Already he had served as Pitt’s assistant, between 1783 and 1787. He knew his illustrious cousin’s abilities very well. Although a paciﬁst in orientation, Grenville had supported Pitt’s ﬁrm stance against the Spanish after their seizure of two British ships in Nootka Sound (oﬀ the west coast of Vancouver Island) in 1790. Pitt had demonstrated that robust diplomacy could be eﬀective without the use of force – at least if the diplomacy had behind it the implied sanction of a rising naval power! Grenville’s tenure in the Foreign Oﬃce (1791-1793) is chieﬂy associated with a strong eﬀort to establish closer ties with the United States, despite widespread antiAmerican sentiment at home and strong anti-British hostility among several of the Founding Fathers. Despite the lingering bitterness in both countries, the US Chief Justice John Jay was sent to London in the spring of 1794 to negotiate a settlement of issues that had not been resolved by the treaty of 1783. “Even where the Canadian boundary was not in dispute ... the Union Jack ﬂew from forts on the American side of the line. Furthermore, the Indian war then being fought was blamed upon British intrigue among the Western tribes. On the other hand, Englishmen protested that Americans refused to honor obligations incurred before the Revolution, often taking refuge behind state laws designed to obstruct the creditor ... To these various legacies of the Revolution were added new diﬃculties brought on by American neutrality” (Perkins, Bradford, 1967). Neutrality was no longer in vogue in London. On the American side, a particularly emotive issue was the continuance of the British practice of impressment. One of the problems for any naval power was ﬁnding enough able-bodied men to service its ships. In times of peace the British Navy usually had enough recruits: work on board a naval vessel was usually easier than on a commercial ship, and the recruit’s remuneration, which was much the same as a seaman’s on a merchantman, was guaranteed (Herman, 2004). War, however, raised the demand for crews to a level that could not be met from the pool of volunteers. Five times in the 18th century, the British Navy had prevailed at sea against the French, and on each occasion it had been necessary to press-gang men to complement the voluntary crews. But the policy of forced conscription, viewed as essential to maintain a ﬁghting navy in an era of almost uninterrupted warfare, came at a price: men who had been kidnapped to serve their country at sea (or on land overseas) were unlikely to be entirely loyal patriots. So after the War of American Independence it had become common for British commanders to lose crew members through desertion to the other side, attracted by higher wages and better working conditions. This led to a British naval practice of halting American vessels on the high seas to be searched for deserters. Desperate

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for crewmen, captains were not always scrupulous about national identity: many of those impressed at sea were native or naturalized Americans. In 1807 this practice was extended to the US warship “Chesapeake”. Nor had the British been any more scrupulous in observing American rights as a neutral state in the war against Napoleon. Frequently the British exceeded their rights of blockade against American ports, and extended their search for contraband to American vessels on the open sea. These and other British violations of maritime laws and practices had created a high level of resentment. So Jay arrived with a catalogue of legitimate grievances. Grenville was cautiously friendly in his response to Jay’s initiative. Within less than two weeks after the American’s arrival in London, Grenville and Pitt were urging British merchants to re-engage in normal trade with the Americans. Arbitration was suggested for commercial disputes between British and US citizens. In the middle of November a treaty was agreed upon and signed by Jay and Grenville: an instrument known to history as Jay’s Treaty, but perhaps more properly as the Jay-Grenville Treaty. In the compromise text, “England promised to evacuate the frontier posts, opened the East and (conditionally) the West Indies to American shipping, and agreed to arbitration of the debt, seizure and boundary disputes. But the British government declined to end impressment, refused to accept a liberal interpretation of the rights of neutral commerce, and oﬀered no compensation for slaves carried oﬀ during the Revolution”. Grenville’s policy of friendship should probably not be interpreted as the origin of Great Britain’s special relationship with the United States, given the continuance of trans-Atlantic tension and the resumption of hostilities in the War of 1812. Rather, it was part of a general conciliatory strategy based on commercial considerations, reﬂected also in Britain’s relations with Spain, as much as part of the alliance-building policy that Great Britain was consciously developing with traditionally friendly countries like Portugal and Denmark. Grenville had to come to grips with provocative realities (Jupp, 1985). Events were forcing Britain to show its hand. Under the Treaty of Westphalia (1648), Britain, France and the other parties had agreed to the closure of the Scheldt estuary to international navigation, but in 1792 the French revolutionary government proclaimed that the Scheldt should be opened to all and made their point more forcibly by threatening to bombard the commercial center of Antwerp. The strength of opposition in London and Amsterdam convinced the French to declare war on Great Britain and Holland simultaneously. Despite his preference for diplomacy over force, for neutrality over intervention, Grenville found himself obliged to implement a policy of war in order to avoid the fate of isolation. Of course, the war years that followed completely eliminated the complacency factor in British foreign policy. By 1805 Pitt had become a convert to the cause of a European congress based on the “principle of concert”, which would be guaranteed by a multilateral coalition led by the Great Powers. It was this principle of collective commitment that lay at the heart of the treaties of 1814-1815, but the instruments concluded were suﬃciently general in language to leave unsettled a number of crucial issues. In particular, did the Vienna settlement rest merely on a guarantee of the postwar territorial allocation, or did it create a Great Power commitment to a policy of

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intervention? And what principles, if any, supported the Great Powers’ arrogation of the right to grant or deny recognition to new, expanded or reduced states? In Robert Stewart Castlereagh (the 2nd Marquess of Londonderry) (1769-1822), who was appointed Foreign Secretary in 1812, Great Britain found its diplomacy directed by the most “European” of its statesmen – perhaps the most committed to European cooperation of all British statesmen of the 19th century (Temperley and Penson, 1938, 1966). He was also one of the most ethical, emphasizing the binding character of treaties, even those that lacked the imperative force of a treaty of guarantee (Ress, 1984). No one played a more central role in assembling the Grand Alliance and in the reconstitution of the continent on the basis of the settlements negotiated at the Congress of Vienna. But in the process he brought himself close to the anti-revolutionary, anti-liberal allies that his country had needed to thwart Napoleon (Webster, 1947 and 1950). Earlier in his career, when he was President of the Board of Control, Castlereagh had opposed the British policy of expansion in India dictated by the East India Company. In Europe similarly, he rejected all projects that could be viewed as expansionist. Although willing to defend British interests, when threatened, he had “no concept of empire ... as a transcendent ideology” (Derry, 1976). He looked always to Pitt as his mentor, and his leader’s death brought transparent grief to a man reluctant to display emotion. On most foreign policy issues, Castlereagh was greatly inﬂuenced by Pitt’s famous memorandum of 10th January, 1805, which assigned the highest priority to the rescue and protection of countries that had been subjugated by Napoleon. In addition to calling for restoration of the previous status quo, Pitt had envisaged the establishment of “a general system of public law” in Europe, which would be based on a multilateral treaty of peace. But even as the hostilities continued, it was recognized that France had legitimate interests that would have to be taken into account within a ﬁnal settlement. Castlereagh accepted all of this. Yet he also understood that Austria had suﬀered more than the rest of Western Europe at the hands of Napoleon and that Metternich had justiﬁed concerns about the possible resurgence of the French military machine. It was Castlereagh’s moderation, derived from Pitt, that was most infuriating to anti-French contemporaries looking for a lasting vengeance. It was chieﬂy due to Castlereagh, in concert with Metternich, that the expansionist demands of Russia and Prussia were held in check, and that some deference was given to the concept of a “just equilibrium”. It was almost entirely Castlereagh, on his own initiative, who insisted on the principle of diplomatic consultation and on the need to re-admit France to the concert of powers in 1818. As the architect of the “congress system”, it was he who consistently opposed the eﬀorts of Russia, Prussia and Austria to regulate Europe under sanction of military force, and to resort to coercive diplomacy whenever it suited their common interest. Castlereagh’s famous memorandum of 1820 – perhaps “the most famous State Paper in British history” (Temperley and Penson, 1966) – committed the rising world power to a policy of non-intervention and to a system of European cooperation. Interestingly, however, the alternative policy of Great Power interference was rejected on moral and political grounds. Castlereagh’s memorandum contains no reference to legal considerations. As the chief opponent of the diplomacy of forcible intervention, Castlereagh protect-

The Ruling of the Modern World (1815-1905)

ed Greece and Spain from Great Power interference, and articulated British policy in favor of recognition of new de facto governments arising from successful popular revolutions. It was also an important priority for Castlereagh to maintain a conciliatory policy toward the Americans despite the animosity they had aroused throughout his country, reinforced by the War of 1812. In any list of history’s most “unnecessary” wars, the hostilities between Great Britain and the United States in that year must be considered as a leading contender for placement among the top seeds. Even the “War Hawk Congress”, provoked by unsettled issues, had diﬃculty mustering any enthusiasm for a resumption of warfare of American soil. Nearly two-ﬁfths of the House and almost half of the Senate were opposed. Most of the others assented with reluctance (Perkins, Bradford, 1964). After a series of rather inconclusive battles and skirmishes, a ﬁve-man US delegation arrived in the Belgian city of Ghent to negotiate a treaty of settlement. It included the smooth and conciliatory Henry Clay (1777-1848), but was led by the irascible John Quincy Adams (1747-1848). Son of the second President, Adams would rise to the highest oﬃces in the land, though many along the way would feel the lash of his tongue. He was also a pessimistic man, and more anti-British than his father had been. Indeed he had made common cause with Jeﬀerson, because he considered the Federalists “too tolerant of British insult”. Gently and jokingly, Clay suggested to Adams that irritability was not considered part of a negotiator’s arsenal. The British Foreign Oﬃce wanted settlement of the sharpest issues – ﬁshery problems and other maritime matters, such as blockade issues and the right of compensation for ship seizures. They sent lawyers and naval men to talk tough. Canadian boundary disputes and Indian, impressment and other issues came up despite the lack of instructions on these matters. The ﬁrst two weeks of negotiation did not go well. The mood of the US delegation was not improved by the news that their capital had been sacked by a British force out of Halifax, Nova Scotia, although it gained them sympathy in the cities of Europe and probably made compromise at Ghent more palatable to British public opinion. Gradually it was decided to moderate certain demands. On the American side, it was agreed to abandon the position that the British must discontinue their practice of impressment, and the British found it possible to accept a softly worded American promise to deal leniently with Indian tribes that had become allies on the wrong side. More fundamentally, the British delegation received instructions from London to abandon its legal claim to uti possidetis: the entitlement to retain possession of territories acquired by force under the old “right of conquest”. The British had decided to settle for “a treaty without plums”. The idea of renewing a war of conquest was losing its appeal. In the end, agreement was reached on Christmas Eve on a text remarkable less for the settlements reached than for the issues shelved. Basically, the Treaty of Ghent restored the pre-war situation (the status quo ante bellum). To partisans on both sides, it was a failure, settling none of the major issues of the day. To admirers of Castlereagh’s policy of peace and conciliation, it was a wise eﬀort to begin what was bound to be a diﬃcult process of restoration. The milieu of Castlereagh’s career was also colored by the excitements of nationalism and liberalism. It was these sentiments, in the view of conservatives like Pitt and

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Castlereagh, that had brought on an era of devastating conﬂict. Like Grenville and Canning, Castlereagh belonged to an Anglo-Irish family that had prospered from the dispossession of others: half landowners, half merchants; half Irish, half English; half nationalist, half imperialist (Taylor, 1929). So he was condemned to ambivalence, the best qualiﬁcation for developing a pragmatic and moderate foreign policy in the early 19th century. His Irish experience, as Derry (1976) suggests, “made him sensitive to the appeal of nationalism and alert to its dangers. He knew that the nationalist ideals challenged existing societies and that they were divisive forces leaving social conﬂict as their legacy to future generations”. Moreover, the Spanish issues of his day demonstrated that liberalism and nationalism were not necessarily compatible. Nor was the cause of constitutionalism a constant companion of peace and stability. Though lacking oratorical dazzle, Castlereagh has left to posterity an attractive picture of a balanced and sagacious statesman, brave and patient in his frequent confrontations with powerful and cynical counterparts. He allowed himself to be underestimated by his contemporaries, who judged him slow-witted. Perhaps as an aristocrat, he was reluctant to display his cleverness. Putting his motives on record would surely have done much to improve Castlereagh’s popularity at home. He was a man of character, content that he had the respect of the House of Commons. The tragic truth may be that his apparent imperturbability was a mask of politeness. Faced with blackmail on suspicion of homosexual activities, Castlereagh preferred to take his own life. Even in death he has been impugned by insinuations that he carried the seeds of insanity (Hyde, 1959). Castlereagh’s premature death in 1822 was hailed by the Turkish Porte as “a miracle of Our Prophet” (Seton-Watson, 1945). It brought back to the Foreign Oﬃce one of the most controversial ﬁgures in modern British political history, and certainly one of his country’s most celebrated Foreign Secretaries. George Canning (1770-1827) was born to be a politician, endowed with exceptional energy and a rapid intellect, but also a dangerous combination of sarcastic wit and restless ambition. Historians and biographers are divided over the life and career of Canning, according to what they judge to be attractive and useful in a statesman. After his death, in the Victorian era, British historians forgave Canning for his faults, seeing in him the architect of a foreign policy appropriately balanced between moral and amoral considerations, beﬁtting the image of a powerful but enlightened empire. Much was made of his liberal leanings, which were not so extreme or consistent as to repel his more conservative successors. Disraeli was to revere him almost as much as Gladstone more clearly did. Not least, he would be seen as the founder of the tradition of professionalism in the British Foreign Oﬃce, and as a more moderate predecessor to the imperious Viscount Henry Palmerston (1784-1865). Canning was deprived of his father on his ﬁrst birthday. His beautiful and attractive mother, Mary Ann, turned to the theater to make a living, bravely regardless of social convention. She became the mistress of one actor, Samuel Reddish, and carried ﬁve of his children. Later she married another actor, Richard Hunn, and bore him ﬁve more oﬀspring. She seems not to have been a great actress, but did once share the stage with David Garrick (1717-1779) for a short-lived production at Drury Lane.

The Ruling of the Modern World (1815-1905)

The boy was salvaged from the world of theater by a wealthy uncle, Stratford Canning, who brought him up as one of his own. George seems never to have recovered from his reputation as the “cleverest boy at Eton”, for it was there that he became addicted to the writing of satirical verse. As a schoolboy he suggested the granting of a patent for the manufacture of wit. “I have already laid in jokes, jests, witticism, morceaux and bon mots of every kind ... I have epigrams that want nothing but the sting. Impromptus may be got ready at a week’s notice” (Taylor, 1929). He was the perfect ﬁt for the oratorical style of the House of Commons. At Oxford, as a student at Christ Church, Canning sharpened his faculties for a political career that was never in the slightest doubt. His ﬁrst natural instinct – for he had many – was to pose as a radical, and it was so successful that he almost succumbed to William Godwin’s proposal that he become the leader of the English Radical group. But another instinct convinced him that it was safer to turn to William Pitt, the great man of the British political system, who recognized the rising of a star in the public arena. Soon Canning was placed at the Foreign Oﬃce as Under-Secretary, subject to Lord Grenville, but reporting secretly to his mentor in the Prime Minister’s Oﬃce. It was then, during his apprenticeship at the Foreign Oﬃce, that Canning ﬁrst displayed what has been described as his “unwillingness to subordinate facts to ideas” (Dixon, 1976). When he was appointed Foreign Secretary in 1807, he became the ﬁrst in power at the Foreign Oﬃce to demand the mastery of factual detail. In that way he was the chief molder of the modern style of diplomacy; and arguably also in another way, by linking the conduct of foreign policy with the management of public opinion and the manipulation of national sentiment (Rolo, 1965). It was during his ﬁrst tenure as Foreign Secretary that Canning – “a man of persistent smallness” (Taylor, 1929) – turned on Castlereagh, then the Secretary of War, holding him personally responsible for the British military defeat at Corunna and insisting on his fellow Ulsterman’s dismissal. Infuriated, Castlereagh demanded satisfaction as a gentleman. The ﬁrst pistol shots missed, but Castlereagh’s second attempt pierced the ﬂeshy part of Canning’s left thigh. Castlereagh was the more unpopular of the two in the country at large, since unlike Canning he made no discernible eﬀort to elicit public favor. Yet in the highly charged debate that erupted after the scandal, the British people “settled into a belief that Castlereagh was the wronged party” (Dixon, 1976). Curiously, the great manipulator of popular opinion had lost the duel, twice over, to a taciturn aristocrat. At this time, and throughout his career, Canning was closely identiﬁed with the British trading community. As the elected representative of Liverpool in the House of Commons, he was always attentive to the need to examine every issue, domestic as well as foreign, from the perspective of British commercial interest. Earlier, Liverpool had built its fortunes, like Bristol and other West coast seaports, on the back of the slave trade, but now it had developed a versatility in the shipment of sugar and cotton, and its wealth increased further after curtailment of the East India Company’s monopoly in South and Southeast Asia. Like Castlereagh, Canning had little regard for sentimentality, but he remained faithful to Pitt’s commitment to the abolition of the slave trade, although, like many others, he was prepared to defend the institution

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of slavery itself. His commercial sense convinced him that every international issue was, or should be, negotiable. This conviction made him a formidable diplomat, for no one matched his negotiating skills. From a world order perspective, Canning’s tenure at the Foreign Oﬃce between 1822 and 1827 was important because of his contributions to the diplomacy of intervention and recognition (Temperley, 1925). Both of these were to become issues of the kind that reside at the interface between international law, international politics, and international morality. In Canning’s time they were just beginning to be perceived as having a legal dimension. Forced into alliance with Austria, Prussia and Russia by the exigencies of the Napoleonic Wars, Great Britain in the post-war years had to extricate itself from the coils of the Grand Alliance through strategies that included rapprochment with both France and the United States. Paradoxically, the policies that Canning pursued to those ends had been established by Castlereagh, whose pistol might easily have taken his life, though formulated earlier by their conciliatory mentor, William Pitt. The challenge to British foreign policy was to ﬁnd an approach to Great Power intervention that could be rooted in moral or legal considerations as well as in commercial and political interests. The wish to maintain or restore absolute monarchs did not qualify. In 1808, during his ﬁrst period as Foreign Secretary, Canning had approved of British intervention in the internal aﬀairs of Spain, where Napoleon had installed his unworthy brother Joseph on the throne. Canning had swept aside the legal technicality that Spain was still at war with Britain, arguing that this deposition was an unprincipled act by the “common enemy of every established government and independent nation in the world” (Temperley and Penson, 1966). Canning understood that nations had to be protected from seizure, and on this ground objected, less successfully, against the dismemberment of Poland and other countries. Later, in a rousing oration before the House of Commons, he applied his pre-Churchillian powers of rhetoric to justify his policy of principled intervention. “It was indeed a stirring, a kindling occasion: and no man who has a heart in his bosom can think even now of the noble enthusiasm, the animated exertions, the undaunted courage, the unconquerable perseverance of the Spanish nation ... without feeling his blood glow and his pulses quicken with tremendous throbs of admiration”. As we have seen, the Grand Alliance had come together on the basis of three treaties: the Treaty of Chaumont and the First Peace Treaty of Paris, both negotiated in 1814, and the Second Treaty of Paris signed in 1815. To these treaties was added a declaration in treaty form inspired by Czar Alexander I, which called on all rulers to come together in a union of all the Christian monarchs on the continent. The sober Castlereagh had been moved to dismiss this document as a declaration of pious aspiration: “a piece of sublime mysticism and nonsense”. Matternich had been equally scornful: it was “a loud-mouthed nothing”. Canning shared these sentiments, and made it his central purpose to dismantle the system being perverted to enforce the legitimacy of absolutist rule. Foolishly or not, all the rulers of continental Europe had signed on to the Holy Alliance. It was found appealing to belong to a continent-wide league, whose members were enjoined to bring their conduct with one another under the governance of com-

The Ruling of the Modern World (1815-1905)

monly shared Christian principles. It had been considered appropriate to exclude the Sultan of Turkey. Most historians have smiled indulgently at Alexander’s misty vision. “He took the Gospels for a common creed and oﬀered their precepts as a manual of statecraft, but he never showed how Christianity was to become an organic structure or its doctrines to be applied to the political conditions of the time. He was, therefore, immediately at the mercy of Canning’s criticisms and Metternich’s cunning” (Cecil, 1927). The strictures of natural law were weakening. Under the new positivist ethos, sovereign states could not be subject to the binding sanctions of public morality “outside the parchment of a treaty”: that is, of a legally binding international agreement. From the time of Castlereagh it had become central to British foreign policy to minimize the obligations incurred by the Concert of Europe. It fell to Canning to convince his continental colleagues that neither the three binding treaties nor Alexander’s call for Christian unity created a mandate to intervene in the aﬀairs of other countries to suppress internal dissidents. Uppermost in Canning’s mind, during his second tenure in the Foreign Oﬃce, was the future of the Spanish colonies in South America. Dissidents, led by revolutionary leaders such as Simon Bolivar (1783-1830), had found it relatively easy to throw oﬀ the yoke imposed for 300 years by Spanish arms. Dissidents in Spain itself had captured their king, Ferdinand, whom virtually all historians have agreed to condemn as “worthless”. France, now resurgent as Metternich had feared, had occupied most of Spain. Canning was convinced that France was on the brink of a second age of empire-building that would be accomplished by the take-over of the crumbling Spanish empire in the New World. Whether or not he was actually convinced of this danger, Canning succeeded in persuading others of his convictions, including his Prime Minister, the normally sceptical Duke of Wellington, and other Cabinet colleagues, while admitting the absence of proof. Canning also persuaded the French government of his convictions, and successfully warned them oﬀ by insisting that the Spanish colonies had become independent nations entitled to recognition as such by existing sovereign states. At the risk of seeming to be appeasing dissidents with Jacobin ideas, he warned France, by implication, that the British government was prepared to act on behalf of republics entitled to recognition, even though it remained monarchist to the core within its own constitutionalist tradition. In the so-called Polignac Memorandum, negotiated in October 1823, Canning admitted that the British government would prefer that recognition came ﬁrst from Spain, the mother country, but other states could not be expected to wait indeﬁnitely for such a gracious gesture (Hinde, 1973). Whether or not Canning’s fears of French intervention were justiﬁed, and whether or not his threat of recognition actually deﬂected such a course of action, a “pre-legal” precedent had been set by the nation that was about to become the dominant power of the 19th century. On the last day of 1824 Canning completed arrangements for entering into ofﬁcial commercial relations with the most developed of the newly independent Latin American republics: namely, Argentina, Columbia and Mexico. The true nature of Great Britain’s interest in these countries was frankly acknowledged in this “commercial recognition” initiative. Several months later, the British government proceeded to “full political recognition” (Temperley and Penson, 1966). The suggested distinction between commercial and political recognition did not survive when “recognition”

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became a legal term of art later in the century, but the political utility of a provisional or compromise position has been recognized in the distinction between a de facto and a de jure relationship with a new state. The value of a “grey” intermediate status has been debated, with appeals to strict legal logic on one side and common sense on the other. On the whole, common sense has won out. De facto recognition can be justiﬁed on the ground that a new state may need time to prove that it has achieved a reliable level of governmental stability and the capacity to discharge its international responsibilities as a sovereign entity. Some time may be necessary to demonstrate, as an empirically veriﬁable fact, that these preconditions have been met. British views on intervention and recognition were to become inﬂuential beyond the continent of Europe. Their impact on world history in the 1820’s is most easily assessed within the context of American diplomatic history. Idealism, Cynicism and the Monroe Doctrine. The interventionist prerogative claimed by the Great Powers of Europe was a matter of considerable concern to the leaders of the United States in the 1820’s. They were not originally aroused by the Congress of Vienna, since it purported to be designed merely to prevent the recurrence of French militancy on the continent of Europe. Nor did they raise objection to the aspirations of Christian unity contained in Czar Alexander’s charter. Indeed the Holy Alliance was acclaimed by American paciﬁsts. But in the years that followed, many in the young republic took alarm at the pretensions of the Austrian, Prussian and Russian monarchies to a sacred duty to put down internal movements in other countries. Most at risk, it seemed, were those countries going through a process of republican and constitutional reforms such as those that had given birth to their own nation. In 1820 John Quincy Adams, as Secretary of State, re-articulated the case for the isolation of the United States. In a dispatch to the US minister in St. Petersburg, he insisted that the European and American political systems should be kept as separate as possible. It was not in the interest of the American republic to join a league of monarchists, especially if they supported a system of absolutist rule and the strongest among them were prepared to meddle in the aﬀairs of others. His fears were soon vindicated when constitutionalist movements in Naples and Piedmont were suppressed by armed intervention on the part of the “legitimist” powers. As Dexter Perkins (1963) has written, John Quincy Adams was not a sentimentalist. He sensed the absence of the conditions necessary for the growth of constitutional democracy in the Spanish colonies of Latin America. The ashes of the Spanish Empire were not yet cold. Recognition, he felt, should not be granted until the outcome of the struggle for independence was no longer in doubt. In any event, the timing was awkward, for the United States was engaged in the eﬀort to negotiate the cession of the Floridas from Spanish dominion. Moral posturing on the recognition issue had to be tempered with consideration of the territorial and commercial beneﬁts at stake. By March 1822, however, it had become clear that the revolutionary movements in the Spanish-American colonies had succeeded, even in Peru where loyalist sentiments were strongest. So President James Monroe (1758-1831) began to prepare a message for Congress, recommending recognition and proposing the dispatch of

The Ruling of the Modern World (1815-1905)

US envoys to the new republics. No European power was consulted, nor any of the breakaway Spanish colonies. No weight was given to the fact that some of the reformists in Latin America were displaying a willingness to consider the alternative of constitutional monarchy in the spirit of reconciliation with their mother country. Monroe’s action was taken as a matter of purely American strategy. The Monroe Doctrine was contained in the President’s message sent to Congress on December 2nd, 1823. In its seventh paragraph, the famous document enunciates the principle of non-colonization: “the American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subject to future colonization by any European power”. It is followed, in the forty-eighth paragraph, by an equally ﬁrm assertion of the principle of non-intervention: any attempt by the Great Powers to extend their political system to any portion of the American hemisphere would be considered dangerous to the “peace and safety” of the American people. This declaration, in the isolationist tone of President Washington’s famous Farewell Address to Congress a generation earlier, conﬁrmed a fundamental cleavage between the Old World and the New, a diﬀerence that has retained ideological, cultural and political implications ever since, not least in the practice of international law (Malanczuk, 1984). The circumstances of this historic initiative have been the object of much analysis and speculation on the part of American historians. Some of the debate has focussed on the participants involved in the events of 1823 that preceded the ﬁnal decision. On the European side, only George Canning could be considered a possible inﬂuence on the outcome. Like his predecessor, Viscount Castlereagh, he had been anxious – if “anxiety” can be said to have been part of Canning’s exuberant personality – to consolidate relations with the US government, not least for commercial reasons. His dislike of American rebels was not allowed to weaken his political judgement. His cousin Stratford, with whom he had been brought up, had reported from his post as Minister in Washington that Canning’s conciliatory stance had made the British “almost popular” in America. So the Foreign Secretary proposed an Anglo-American treaty or joint declaration. On August 20th, the premises of such a document were summarized by Canning: (i) Spain’s hopes of recovering its American colonies were unrealistic; (ii) the colonies’ acquisition of the status of independent states was only a matter of time, though the British government was not prepared to block good faith eﬀorts at reconciliation between Spain and its former colonies; (iii) Great Britain had no interest in securing possessions of any of these territories, though it attached priority to the development of commercial relations in that region; and (iv) the British government would not look with indiﬀerence on any transfer of these territories to other powers (Perkins, Dexter, 1963). To promote this proposed initiative, Canning invited the US Minister in London, Richard Rush, to a series of meetings with a view to exploring the possibilities of a joint commitment. Understanding the importance of this proposal, Rush wisely referred the matter to his political superiors in Washington. In Washington, Canning was as widely disliked as he was in London. Dangers were seen in his talent and surface charm. In the words of Bradford Perkins (1961), no one had been “more high-handed or arrogant than he in dealing with the American

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government at the time of the embargo. No Englishman could have been more superciliously conﬁdent of British superiority”. Despite Canning’s assurance that Spain was a spent imperial force, President Monroe and several of his Cabinet colleagues were unconvinced that the new Spanish-American republics were safe from Spanish, or French, intervention. The suspicions of Canning entertained by John Quincy Adams were shared by Thomas Jeﬀerson – now a much revered elder statesman and a well-known advocate of detachment from foreign entanglements. Even the relatively pro-British Madison felt there was less principle than interest in the Canning proposal. So it was decided by the majority in Congress to support Monroe’s bold pronouncement, and to ignore Canning’s oﬀer. Undeterred by this rebuﬀ, Canning was later to claim most of the credit for the Monroe Doctrine: he had “called the New World into existence”, he explained to the House of Commons, “to redress the balance of the Old”. Questions concerning the origins of the Monroe Doctrine continue to be debated by American historians (Rappaport, 1964. Was it really intended to deter the Holy Alliance from interfering in the American hemisphere? Or, more speciﬁcally, to frustrate French territorial designs on Latin America? Or merely to counter Great Britain’s commercial ambitions threatening to extend its “informal empire” throughout the continent? Was Adams the principal author, as most assume, or was the document essentially the result of Jeﬀersonian advocacy (Schellenberg, 1964)? Was this the diplomacy of threat or bluﬀ? Would Congress and the nation have supported a war on behalf of the new republicans of Latin America if it had come to that? Had the US government committed itself to the legal proposition that sovereign states – or peoples – had a fundamental right of self-preservation, and that other states had a responsibility to uphold that right? Was the stand taken against “future colonization” motivated mainly by Tsarist expansionism in Alaska and by Russian encroachments down the Paciﬁc coast of North America, and even in the coastal areas further south? Did the Doctrine reﬂect a denial of the fashionable legal view that large chunks of inland territory through most of the hemisphere were terra nullius, unpossessed by any “civilized “ state and therefore available for occupation? If so, did the US government concede British title to the Yukon and the Northwest Territories and other vast areas in the North, by virtue of the trading posts of the Hudson Bay Company? The Company had already established an enormous “informal empire” throughout much of North America (Newman, 1986). If the US did not repudiate the principle of terra nullius, was it planning to arrogate the right of occupation to itself? If so, on what grounds of law, morality or politics? (Perkins, Dexter, 1965). European juridical reaction to the Monroe Doctrine has been cool (Malanczuk, 1984). It did not reﬂect the state of international law at that time. It has been suspected that the declaration was not chieﬂy the product of US government concern about threats to American sovereignty, nor to that of the new republics of Latin America. Many US citizens at that time hoped to decolonize the whole of the American hemisphere, North as well as South, even if warfare might become necessary to annex established colonial territories.

The Ruling of the Modern World (1815-1905)

At the end of the 19th century, a British writer enunciated the view that the Doctrine was “worthless” as an exposition of legal principles, but the reasons given would no longer have credence. “The United States could not by a declaration aﬀect the international status of lands claimed, ruled or discovered by other powers. They might proclaim in advance the policy which they would adopt when such questions should arise, but no unilateral act could change the Law of Nations ... The Law of Nations could be changed only by the renunciation made, tacitly or expressly, by every civilized power of its right to colonize any unoccupied part of the western hemisphere” (Reddaway, 1898). To-day, of course, the “right to colonize” is wholly discredited; and the question of a “right to intervene” is complex and contentious. Reﬂections. The 19th century was a remarkably muscular age. Power was not hidden behind a wall of decorum. Yet 1814 marked the beginning of the eﬀort to disguise the face of power politics behind the mask of professional diplomacy. In the Congress of Vienna we see the ﬁrst modern experiments in the preservation of international order by an “international community”, albeit one still largely conceived and dominated by the states of Europe. For small nations of modest inﬂuence, survival as an independent actor depended on alignment with a powerful patron or, preferably, on acceptance into a system of nominally equal states. The Congress of Vienna invited the smaller states to attend. In the re-making of Europe, many enjoyed the knowledge that they had been consulted, but frequently they too found themselves bound by decisions in which they had not truly participated. The doctrine of sovereign equality was evidently a principle of standing, but in matters of vital interest to the Great Powers there was no disguising its ﬁctive nature .Almost everywhere society was hierarchically arranged, and there was little reason to expect precisely equal treatment. Despite the ﬁction of legal sovereignty, we see in the early decades of the 19th century only the scantiest evidence that territorial integrity was considered a sacred construct. In the more advanced cultures, legal redress was available to protect the owners of private property, but the early public law of the emergent international community was not yet suﬃciently mature to oﬀer like protection to the territories of states unable to defend themselves. There was still no sense of the virtue in the ethic of self-determination in the international community. By the early 19th century it was becoming understood that rules would need to be developed to govern the practice of recognition, but because so many states were absolute monarchies there was not yet a clearly perceived distinction between states and governments as objects of recognition. Spain’s recognition of the United Netherlands as an independent country in 1649 was also a recognition of the States General as its government (Castro Rial, 1987). Great Britain’s initial reluctance to give legal eﬀect to the recognition of the United States by France, before its recognition by the mother country, soon became moot, when rapprochement between London and Washington became a matter of high priority (Perkins, Bradford, 1967). Despite the muscular tone of Great Power diplomacy in this era, the general preference in British foreign policy was to cultivate a pragmatic tradition that balanced moral with amoral considerations. The government in London did not claim to have

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invented a more ethical brand of foreign policy – indeed the balancing of considerations makes total consistency an unattainable goal – but the eﬀort to practice moderation by Pitt and his disciples set higher standards for succeeding generations. Without that achievement, it is diﬃcult to imagine how the future ethos of international law could have evolved in matters related to recognition, intervention, and the principle of international cooperation. Invention of Modern Constitutional Government As we have seen, the fact or threat of Great Power intervention in the early 19th century was motivated chieﬂy by the determination to retain absolutist monarchies elsewhere in Europe and also in the American hemisphere. In the view of the legitimists, threats to replace such regimes with a republican system or with a constitutional form of monarchy had to be discouraged by coercive diplomacy, or, in the more serious cases, actually repressed by resort to arms. Constitutional change in either of these directions was likely to undermine their own legitimacy. But absolute monarchy was to prove a losing cause. Constitutionalism, as a check against tyranny, was to become the preeminent mode of civic idealism, ﬁrst at the national level and then for the world community at large, as a key component of the concept of rule of law, which in turn would evolve as an essential feature of modern society. This kind of modernization grew out of the experience of many countries in the ﬁrst half of the 19th century. Questions. How diverse were these experiences? What was left of the French Revolution? What other resources did Europe have to draw upon for the shaping of a more stable and enlightened system of government? Where were the springs of “progress”? Did civic improvement depend on better leaders or on better institutions? Was there a successful tradition of democracy elsewhere that could be exported to other countries throughout Europe and beyond? Was there, in particular, a shareable conviction that progress toward the establishment of democratic rule depended on the consolidation of constitutional order? Must monarchy give way to a republican state, or could the people’s will be served through a parliamentary regime based on a limited monarchy? France: The Struggle for Constitutional Stability (1814-1848). Arguably, it was the French Revolution, not the American War of Independence, that had the greatest impact on the future political history of the West. Hannah Arendt (1965) went so far as to suggest that “the French Revolution, which ended in disaster, has made world history, while the American Revolution, so triumphantly successful, has remained an event of little more than local importance.” Yet the famous uprising of 1789 was a revolution that failed. It did not produce a radically new France in the early decades of the 19th century, much less a new world. Indeed it triggered the forces of reaction. The Notables (grands notables) who assumed control of post-Napoleonic France were new aristocrats, whose wealth, like that of the old, was derived from their ownership of great landed estates.

The Ruling of the Modern World (1815-1905)

Even before Waterloo, the structure of authority that the Emperor had assembled was collapsing. The catastrophic losses suﬀered on the Russian front had shattered the Grande Armee. Over 125,000 French soldiers were killed and 190,000 captured. Another 100,000 perished in misery, victims of the terrible Russian winter and of hunger and sickness. The myth of Napoleon’s invincibility was exposed. The families of France were dressed in black throughout the ﬁnal months of 1813 and into the early part of the following year. There is reason to believe that if Napoleon had not invaded Russia in 1812, the powerful coalition that brought him down – Britain, Russia, Prussia and Austria – would never have been formed. Prince von Metternich of Austria and Frederick William III of Prussia were convinced of Napoleon’s invincibility on the ﬁeld of combat; and Tsar Alexander I, though clearly the chosen instrument of God’s will, would never have confronted the French alone on his own initiative. It was the gravity of the common threat posed by France that obliged the anti-Bonapartists to put their diﬀerences aside as a matter of immediate strategic convenience. In 1814 the victorious British army under Wellington (Arthur Wellesley) had suﬀered some reverses on the Iberian Peninsula. Great Britain’s pool of recruits was quite modest: its total population of only 15 million compared unfavorably with the French nation’s 28 million or more. A more prudent Napoleon would surely have continued to reign uncontested in Paris until his death – without fear of poisoning by his republican enemies (Cate, 1985). After Waterloo, France became a fragmented society. The old order was destroyed. New social classes and political ideologies emerged but without any prospect of majority support for any of these hostile factions. French political experience careened wildly over the next three decades, oﬀering no collective commitment to a tradition of constitutional order. Once fashionable among the intellectual elites, progressivists like Voltaire, Rousseau and Paine had become dangerous in Europe, as sowers of the seeds of anarchism (Marshall, 1993). But in France especially, in the years between 1814 and 1848, we see the birth of modern politics. Two hundred years after the overthrow of Napoleon I, we can recognize in the French politics of that era the origins of the now-familiar divisions between “conservative” and “liberal” – of Right and Left – which have created the dynamics of political change in modern societies granted the power of choice. After the fall of Napoleon, the Bourbon dynasty was re-introduced in the persons of Louis XVIII (1755-1824) and Charles X (1757-1836). The legitimacy of the old regime was restored, though formally disguised by a charter, the Chartre octroye of 1814, which was designed to create a constitutional monarchy. This compromise arrangement had points in common with the British model of government, such as a bicameral parliamentary system, but the French experiments in constitutionalism were to be quite distinct. The 1789 Declaration of the Rights of Man, based on the American Declaration of Independence (1776), had asserted the natural rights of all citizens to liberty and equality, and also to property and security. The remnants of feudalism and serfdom had been abolished. The 1791 Constitution added other rights such as the freedom to emigrate, the right of petition, and entitlement to compensation for property conﬁs-

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cated by the state. By 1814 Napoleon’s promised codiﬁcation of the civil law had been promulgated, but the stability of constitutional order proved elusive. Within the new system of constitutional monarchy Louis XVIII made a serious eﬀort to ﬁnd a balance. Eﬀective rule depended on genuine trust and collaboration between the king and the Constitutionalists, who were positioned between the conservative Ultras on the right and the liberal Independents on the left. By his death, however, Louis had veered to the right, repelled by the disturbing visions of the left. His successor, Charles X, was 67 years old when he was crowned in 1824. In 1789 he had ﬂed and spent the next 25 years in exile, escaping Madame Guillotine who had taken his brother Louis XVI. A true, and somewhat gracious, aristocrat, Charles had no acute understanding of the need for popular government. In the Charter of 1814 he detected only a duty to consult the people’s representatives. He had no instinct for compromise. He disapproved of the overly tolerant, quasi-liberal regime of his second brother. Louis XVIII, while deploring the Revolution of 1789, had at least accepted it as an event that could not be ignored, possessing signiﬁcance for the nation’s future. But Charles and the ultra-royalists opposed the restrictions on privilege that Louis had accepted as part of a constitutional monarchy. For Charles the parliamentary system was incompatible with his royal prerogative (Pinkney, 1972). The smart Parisians in the late 1820’s wryly compared their political fate with that of 17th century England. Their Louis XVI was England’s Charles I. Napoleon was Cromwell. Louis XVIII, their late departed sovereign, was Charles II, though somewhat less romantic. And now their own Charles was acting like England’s James II. The parallelists were looking for a French William of Orange! (Collingham, 1951). Instead, in July 1830, they found another revolution in “Three Glorious Days” of that summer month. Faced with violence on the streets of Paris, Charles X wisely abdicated in August, perhaps on the advice of the elderly statesman, Prince Charles Maurice de Talleyrand (1754-1835), yielding the throne to Louis-Philippe (1773-1850), his cousin of another royal line. In the 1830’s Paris remained on the edge of anarchy. It was a city of fear, wracked by poverty, violence, and class hatred. Yet they had at least a “bourgeois” monarch: a citizen-king, “a king of the French”, not “of France”. The title implied something less than a sovereign by right of inheritance, but rather a consented ruler by reason of the fact of revolution. Almost overnight, the old Charter of 1814 was revised. The preamble was altered to remove the impression that Louis XVIII’s concessions to the people had been made by his own free will. It was also guaranteed that the censorship of the press would never be re-imposed. It abolished the royal prerogative to suspend the laws of the land in the event of state emergency (Pinkney, 1972). Yet in its essentials the ancient regime lived on (Lucas-Dubreton, 1951). The 50th anniversary of the Revolution of 1789 passed unnoticed, or at least unmarked by public celebration. Only at the centennial in 1889 would an iconic tower rise in the middle of the city as a monument to the taking of the Bastille (Pinkney, 1986). The simmering discontent exploded once again in 1848, the year of revolutions over most of the European continent. It seems that very few in France wanted this upheaval, and even fewer expected it. Admittedly, unemployment was everywhere, on the land as well as in the towns. Harvests had failed. The public ﬁnances had col-

The Ruling of the Modern World (1815-1905)

lapsed. France had not prospered out of Britain’s Industrial Revolution. Everyone was looking for a measure of relief from a reasonably enlightened government, but the haute bourgeosie was totally unresponsive, betraying the formal appearance of a liberal constitutional monarchy based on the people’s will. The leaders of the 1848 Revolution were, however, no more adept than the target regime. The malaise ran deeply through French society, limiting the Paris uprising to something less than a general insurrection. On diﬀerent sides of the ideological barricades, Karl Marx (1818-1883) and Alex de Tocqueville (1805-1859) could at least agree on the political incompetence around them (Denholm, 1972). Yet, despite all the conﬂicts and contradictions of the decades after the French Revolution of 1789, the political culture had been changed forever. Although the political systems of Europe stayed locked, under the control of wealthy elites, the vocabulary of political discourse of the 19th century revolved increasingly around the concept of liberty, applied both to individual and communal welfare. “The demand for the vote, for charters and constitutions, and for reforms in existing governments had in view this simple scheme, which was to be worked by elected representatives of the people. It promised to each and all a fair ﬁeld on which to compete for an endless variety of further beneﬁts” (Barzun, 2001). Nonetheless, the new century, which contributed so much to civic progress, was also marked by remarkably tenacious resistance to change. Nowhere more so than in czarist Russia. Russia: Liberalism and Reaction (1789-1881). Catherine the Great (1729-1796) had wished to follow Peter the Great’s example as a modern ruler open to reforms that could be kept under control. After the beginning of the French Revolution, however, her earlier enthusiasm for liberal ideas started to decline. Indeed she proceeded to reverse her policies by prosecuting conspicuous holders of progressive opinions that she herself had once promoted (Alexander, 1989). Her emotionally unbalanced son Paul (1754-1801), who succeeded her in 1796, embarked on an erratic reign that seems to have been motivated chieﬂy by the desire to change almost everything that his bitterly resented mother had attempted to achieve. He succeeded in alienating most of Russia, and six years after accession died unlamented at the hands of military assassins. Paul’s son Alexander (1777-1835) was more promising material for the throne of the Russian Empire. Unlike his father, he admired Catherine and consciously attempted to pursue a liberal approach like hers on several issues. His eﬀort to introduce constitutional reform based on the rule of law was frustrated by aristocratic nationalists chieﬂy intent on the assertion of Russian inﬂuence beyond the periphery of the motherland. He favored the abolition of serfdom and proposed limitations on his own royal prerogative, but the conservative committee to which these proposals were submitted in 1801 found them dangerously revolutionary. In 1803 a moderate decree (ukase) was enacted, permitting landowners to liberate their serfs and providing them with plots of land, but only 47,000 secured their freedom under that statute. Educational reforms had more success, including the establishment of three new

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universities, but the privileged elite around the czar were more conservative than Alexander, and caught up in the nationalist campaign to contest Napoleon’s will. Curiously, one of the most inﬂuential ﬁgures in St. Petersburg at that time was not a Russian. Indeed, Joseph de Maistre (1753-1821), who seemed the very embodiment of French intellectualism and was a most elegant stylist of French prose, was not even French. Yet it was De Maitre, writing in French in Russia, who became the most articulate spokesman for conservatism on the continent of Europe. Before him, Edmund Burke (1729-1797) had laid the foundations for modern conservative theory in Britain. Alarmed by initial enthusiasm for the French Revolution among British intellectuals, Burke had emphasized the dangers of popular democracy, whereby numbers could govern without the constraints of responsible leadership, which he perceived to reside exclusively in the traditional, aristocratic, ruling class. Above all, Burke insisted on the need for constitutional tradition: in the words of Charles W. Parkin, he appealed to the British constitution’s “concern for continuity and unorganized growth, its respect for traditional wisdom and usage rather than speculative innovation, for prescriptive rather than abstract rights, its acceptance of hierarchy of rank and property, its religious consecration of secular authority and recognition of the radical imperfection of all human contrivances”. These words might also be used to describe the conservative thought of De Maistre. Young Joseph was born in Chambery in Savoy, which was then part of the Kingdom of Piedmont-Sardinia. He has been derided as the “king of the Alps”, come down from the “borderlands of history” (Triomphe, 1968). His father was a lawyer and provincial oﬃcial, a conscientious man and probably a benevolent, if stern, parent. It was, however, to his mother that Joseph was totally devoted, and it was due to her that he remembered his happy childhood with such aﬀectionate nostalgia. Joseph was an exceptionally bright child, whose intellect was sharpened, if not liberated, by his instruction from the Jesuits, to whom he remained loyal in his own independent manner. Early in life he mastered French, Italian, English, Spanish and Latin. German and Greek came later, and some Russian and Hebrew later still (Johannet, 1932). In 1796 Joseph’s homeland of Savoy and Nice was ceded to Napoleon, forcing him into an adult life of exile in the adjacent Italian territories. Most of his career was spent in the service of his sovereign. In 1806 the realm of King Victor Emmanuel I (1759-1824) had shrunk under duress to the impoverished island of Sardinia. The king was an amiable man, but not the most intelligent of monarchs. Intellectuals such as De Maistre were a rare commodity in that small rural country, relegated to the periphery of European politics. De Maistre was a proliﬁc writer. Most of his works were produced during his fourteen years as Victor Emmanuel’s envoye extraordinaire at the court of Alexander I in St. Petersburg between 1803 and 1817. As a conservative, like Burke, he was an uncompromising rejecter of the goals of the French Revolution. Irony and sarcasm were sharp weapons in his assault on the concept of revolution, which was reviled as an unnatural perversion of God’s design for humanity. He breathed distrust for the French heritage of rationalism and liberalism, and loved the high risks of verbal warfare. He certainly created an impact on those around him in the Russian capital.

The Ruling of the Modern World (1815-1905)

For a short period De Maistre was an adviser to the idealistic young czar, and succeeded in deﬂecting Alexander from the fashionable notion of a written constitution. Even more remarkably, De Maistre secured a Jesuit foothold in Orthodox Russia’s educational system: in a society, like that of Japan, “arrogantly sure of its own ways, proud of its race and culture, and drawing on deep wells of intolerance and xenophobia” (Johnson, Paul, 1991). He was also a curiously mystical religionist, detached from scripture and dogma. Pages of his religious tracts might have been written by Voltaire the atheist. In political theory he was innovative; indeed he has been acknowledged by critics as an experimentalist, albeit within the framework of elite institutions (Johannet, 1932). In short, much of De Maistre’s thought is elusive. Yet his career as a diplomat was successful in raising subsidies for his impoverished sovereign and eliciting Russian sympathy for Victor Emmanuel’s futile quest to recover his lost territories on the mainland. His inﬂuence on the intelligentsia of St. Petersburg, as a method of diplomacy, has been likened to Benjamin Franklin’s on the literary and social elite of Paris (Lebrun, 1988). In some measure, he was the antithesis of Franklin, using his personality and wit to turn Russia away from the path to liberalism. Many historians have argued that the conservatism of 19th century Russia had less to do with ideas than with the structure of Russian society. No other European country found it so diﬃcult to ﬁnd a culturally acceptable path to modernization and political change. Liberal and democratic ideas were familiar topics among Russian intellectuals during the regimes of Nicholas I (1796-1855) and Alexander II (1818-1881), but the reign of these autocratic rulers and their successors went full term without the intervention of revolution. Oﬃcers who had seen politically advanced societies during their military campaigns in Europe returned with liberal aspirations for their homeland. Some, for the lack of an accessible political system, joined secret societies, but their Decembrist movement frightened the new czar, Nicholas I, into a policy of repression, instead of suggesting the value of a process of accommodation. Intransigent though he was, Nicholas knew that serfdom was the basic ﬂaw in Russian society, but so deeply ingrained that sudden abolition would almost certainly cause the breakdown of law and order. Russia was a rural society. The owners of the great estates carried most of the burdens of local government. It was, however, “appallingly diﬃcult for the rider to get oﬀ the elephant” (Roberts, 1997). So there was no hope for change from below. Improvement depended on the will of the czar and those around him in St. Petersburg. Despite the opposition of the landed elite, Alexander II was able to summon the will to emancipate the serfs in 1861 under a law that granted the peasant formal freedom from bondage and required the landlord to grant him a plot for a ﬁxed rent. In practice, full-scale implementation broke down due to the diﬃculties of ﬁnancing such a massive transfer of land and to the continuing resistance of the great landowners to the threatened loss of their traditional control of local society. Russia, in short, was virtually ungovernable from the center. Great Britain: The Adolescence of Party Politics and Parliamentary Government. British constitutional development has often been portrayed as a history of steady progress characterized by “unparalleled religious toleration and in-

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comparable levels of freedom of thought and expression”. But, as O’Gorman (1997) reminds us, British historians inﬂuenced by Sir Lewis Namier since the 1950’s have emphasized the role of individuals, rather than the force of ideas, in determining the pattern of British political behavior. The British model of modern government and parliamentary democracy has been so inﬂuential throughout the world over the last two hundred years that we may wish to look at some dominant ﬁgures in British constitutional history. The 19th century was the most important stage in that evolution, when the fundamental institutions of constitutionalism were ﬁnally put in place. But to trace the British contribution to the civic history of the 19th century we have to step back brieﬂy to the “long” 18th century: to the period from the “Glorious Revolution” of 1688 to the ﬁrst Reform Act of 1832. In particular, we should begin with Sir Robert Walpole (1676-1745), the ﬁrst Earl of Orford. It was Walpole’s leadership in the House of Commons that set him apart as the ﬁrst builder of the modern British parliamentary system. Although he rejected the title of “prime minister” as a term of opprobrium, it was Walpole’s political skills, above everything else, that seems to have cemented the tradition of parliamentary rule. In his time, however, it was still necessary for a political leader to win and retain the conﬁdence of the sovereign of the day: George I (1660-1727) and George II (1683-1760). Throughout his career Walpole was a ﬁrm but moderate Whig. Originally, the term “whig” was applied to thieves of cattle and horses, and thus to Scottish Presbyterians, and then to all who favored the exclusion of the Catholic-leaning Duke of York (later James II) from the British throne in the mid-1680’s. “Tories” – originally Papist outlaws – supported the hereditary right of James, in spite of his Catholic faith, and the principle of legitimate succession. Before the end of the 17th century the gap between the two factions had begun to narrow. Tories in the 1690’s were becoming more open to the compromise philosophy of limited constitutional monarchy, so that both factions in Parliament could, if necessary, join together in opposition to extreme proponents of the divine right of kings. Walpole was a Whig in name throughout his political career, but it was an era when the Tory opposition was hopelessly divided between Hanoverians, who supported the current dynasty, and Jacobites, who continued to seek the restoration of the Catholic House of Stuart on both sides of the Scottish-English border. The long ascendancy of Walpole in oﬃce, as First Lord of the Treasury and Chancellor of the Exchequer between 1721 and 1745, owed much to his personal success in establishing the Whig Party as a loyalist party able to deliver peace for nearly twenty years and to ensure prosperity. Walpole was not a constitutional innovator, but more than any statesman since the Elizabethan era he demonstrated how stable and eﬃcient government could be attained through political dexterity and attention to detail. He supervised the day-to-day administration of the country “unhampered by royal interference”. It was helpful, of course, that George I could not speak English and “had to converse with his Ministers in French or such dog-Latin as they remembered from Eton” (Churchill, vol. III, 1957). Not least, Walpole, the ﬁrst resident at No. 10 Downing Street, was also “the ﬁrst great House of Commons man in British history”. By the time of George III (1738-1820), a more authoritarian royal ﬁgure, it was not always easy, within a system of constitutional monarchy, to distinguish Whigs from

The Ruling of the Modern World (1815-1905)

Tories in the old ways, through religious aﬃliation or loyalty to a particular dynastic line. Increasingly, political sophistication at the highest level consisted of the capacity for pragmatic judgment and a willingness to compromise. Total ﬁdelity to a particular principle was not necessarily the key to good government in the newly emerging age of party politics. In the early years of George III’s reign, the outstanding ﬁgure in British politics was William Pitt (the Elder) (1798-1778). His grandfather Thomas had been an aggressively successful trader in India, ﬁrst on his own account and then within the pale of corporate monopoly. In 1698 he had been appointed Governor of two of the Company’s main forts on the Coromandel coast. When he ﬁnally returned home to England in 1710, he was immensely wealthy, not least as a result of the proceeds of sale of a colossal diamond (the “Pitt Diamond”) to the Regent of France (Eyck, 1950). On his return, Thomas Pitt had no greater regard for his own children than when he left them. Instead he doted upon one of his grandchildren, the precocious William. This favorite’s formal education as a young man was limited to one year at Oxford before he took a commission as a cavalry oﬃcer, cultivating a taste for war in the service of king and country. In 1735 he entered Parliament, which set him on a course of oratorical virtuosity. His reputation as a patriot and populist earned him acclaim across the country as the “Great Commoner”, reputedly “untrammeled by the corruption of court honours, places and pensions, and as a self-made, independent Whig unbound by divisive party prejudices, but inspired by an honest and independent Patriot spirit” (Duﬀy, 2002). Exuding self-conﬁdence, Pitt was quite prepared to build his career on opposition to the formidable Walpole. He was especially well equipped as a leader who could instill his own energy and cavalryman’s courage in others at a time of national emergency. His image as a national hero was secured in the Seven Years’ War (1756-1763), whose dramatic victories for the British Empire brought him lasting popularity. One of the oﬃcers of the British Army in that war, George Washington, would later make a more important mark on world history from his home in Virginia. Another great Parliamentarian of the late 18th century was Charles James Fox (1749-1806), one of the most colorful and genial ﬁgures in London society. His father, Henry, had created a scandal in genteel circles by absconding with Caroline Lennox, the beautiful 21-year old daughter of the Duke of Richmond, but the pair remained devoted to each other throughout their lives. Charles grew up in an unusually happy and permissive household, encouraged to design his own education in the manner prescribed by Jean-Jacques Rousseau. He remained largely unconstrained by structure and convention. He pretended to be ambitious, but felt obliged to confess that he had “totally subdued that passion” (Davis, 1986). Fox liked to give the impression that politics was a game that awarded points to the most skillfully persuasive debater, but he saw the constitutional value of Parliamentary oppositionists like himself as a check against excessive power building up in the executive branch of government. The political life of Britain had not been deeply aﬀected by the French Revolution. Initially, it was hailed by romantic poets like William Wordsworth:

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Bliss was it in that dawn to be alive, But to be young was very heaven.

The early promise of a better society also appealed to many progressive idealists, not least to Fox, the pro-French, anti-royalist, Tory-turned-Whig. The bliss abated when the scale of the anarchy became apparent, after the massacres begun in 1792. Almost all Fox’s liberal friends in France, such as Lafayette and Talleyrand, were now in exile or prison (Mitchell, 1992). Throughout the years of the French Revolution and Napoleon’s empire, political struggle in Britain had been conﬁned to a shifting, but non-violent, relationship between the Crown and Parliament – all passion spent after the civil wars of the 17th century. Money-making was now higher on the national agenda. The power of Parliament was hardening as the core of the Westminster system of government, but in his earlier, lucid, years George III (the “Patriot King”) was a more formidable presence than his immediate predecessors on the British throne. Although Parliament now enacted all the laws and raised all the taxes, the sovereign still held the power of appointment. King George deeply resented liberals such as Fox, and had to be won over by cleverly pragmatic politicians. None was cleverer than William Pitt (“the Younger”) (1759-1806). Son of a merger of two famously powerful families, the Pitts and the Grenvilles, young William inherited the best of both. From his father – who became the Earl of Chatham when young William was only seven – he acquired the brilliance but none of the waywardness of the Pitts. To his charming mother, Hester, he owed his patience and sweetness of disposition, which some biographers have characterized as close to saintliness: a “shining example of rectitude in a venal Augustan world” (Mori, 1997). Unlike Fox at Oxford, Pitt at Cambridge seems to have resisted the snares of pleasure. Pitt’s intellectual gifts were truly prodigious, not least his phenomenal memory, which could be summoned up eﬀortlessly for any occasion that presented itself. Mature beyond his childhood years, he had studied his father closely. “Chatham’s electrifying presence and extraordinary authority were founded upon unrivalled use of language and brilliant delivery. His speeches were great artistic performances which even his friend David Garrick might have envied. William Pitt watched with care. He was consciously preparing himself for the stage from which his father was soon to make his last dramatic exit” (Reilly, 1978). After his father’s physical collapse in the House of Commons, the son’s own star began to rise. Though less belligerent in temperament, he had seen the political rewards accruing to the patriotic statesman. In time he too would become a war-time leader, perhaps Britain’s greatest up to the time of Winston Churchill, and a setter of standards in debate that even that great orator of the 20th century could scarcely match. By 1815 both Pitt and Fox were dead. The cost of maintaining huge armies and professional navies had been enormous. The cohesion of British society was under the most severe strain, as in France. Tens of thousands of discharged soldiers roamed the countryside, jobless and lawless, accustomed to the spoils of violence. Crime rose to an unprecedented level. Prisons could not cope. Oﬀenders of all kinds had to be

The Ruling of the Modern World (1815-1905)

shipped oﬀ overseas, out of harm’s way; if no longer to the distant American colonies, then to other, equally safe, peripheries of the British Empire. Like other European powers reaching for the fruits of world empire, Great Britain was ﬁnancially overburdened. The economy had been crippled by a tax system freighted with the purpose of defeating the arch-enemy across the Channel. As Sydney Smith complained, British citizens were obliged to pay taxes on “every article which enters into the mouth, or covers the back or is placed under the foot … on the poor man’s salt and the rich man’s spice”. Income tax had become as hated by the rising middle class as the “ship money” of the 17th century. Exports to the continent were depressed by tens of thousands of customs barriers (Roberts, 1997). In such conditions, the evolving system of democratic politics would be tormented by the classic 19th century dilemma of choosing between free trade and protectionism. The most courageous confronter of this dilemma in the 19th century was also one of the ablest administrators in British parliamentary history. Sir Robert Peel (17881850) was grandson of a pioneer of the Lancashire cotton industry. His father had become one of the wealthiest cotton manufacturers in the land, and one of the new landed aristocracy. Robert, the grandson, became the ﬁrst to achieve a double ﬁrst in the classics and mathematics under the new examination system at Oxford. Brought up as a Tory, he would become the founder of the Conservative Party, and thus leader of the squiredom that had the most to gain from retention of the notoriously protectionist Corn Laws (Heilbroner, 1999). At the age of twenty-four, Peel’s talents, character and capacity for work were recognized with his appointment as Secretary of Ireland; and later as Home Secretary. In the latter oﬃce, he was responsible for several major reforms, including the comprehensive restructuring of the English criminal law and the establishment of the world’s ﬁrst professional police force for Greater London, headquartered in an area called Scotland’s Yard. In tribute to the popular minister, the ﬁrst recruits were nicknamed “Bobbies”. In 1823 he became Prime Minister brieﬂy, for only six months, and then again between 1828 and 1830. In the following eleven years in opposition, he built up the Conservative Party in the wake of the Reform Act of 1832. This famous enactment may not impress posterity enormously in light of the more radical democratic reforms that followed. In particular, it fell far short of the demands of the progressive Chartists, adherents of the “People’s Charter” of 1837. It was still too early to achieve such goals as annual parliamentary sessions, universal male suﬀrage, equality of representation among electoral districts, remuneration of members of the House of Commons, and abolition of the property qualiﬁcations for political candidates. But the Reform Act eﬀected a modest redistribution of seats, introducing a substantially more equitable system of representation than what it replaced, especially in the new industrial areas of the country. The later years would produce two more Reform Acts, in 1832 and 1884. The ﬁrst act in 1832 had made reform respectable. The second and the third, like the ﬁrst, were promoted by “men who had no belief in the kind of political democracy implicit in universal suﬀrage and equality of electoral districts, and who feared that the introduction of such a system would lead to the tyranny of the illiterate many over the cultured few and of a numerical majority over the interests of minorities” (Gash,

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1986). Democratic reform in 19th century British history was not the work of radicals. Indeed the true liberals of the eras of William Gladstone (1809-1898) and Joseph Chamberlain (1836-1914) would gather no more support in the House of Commons than the Chartists in the 1840’s. Peel’s ﬁnal ministry lasted only ﬁve years, but it was the climax of his career. His repeal of the notoriously protectionist Corn Laws was justiﬁed by the national interest. He knew that free trade, in the words of Winston Churchill (Vol. IV, 1955), “was no cure-all for the pangs and anguish of a changing society. But the days of the landowning predominance were doomed. Free trade seemed essential to manufacture and in manufacture Britain was entering upon her supremacy. All this Peel grasped. His Government set an example which both the Conservative and Liberal Parties honoured by imitation in the future”. But it was bound to split the party he had created. Although a young Conservative, Benjamin Disraeli, denounced Peel for betraying his position as head of a great party, no one before him, “the model of all Prime Ministers”, had ever displayed political courage on this order. It would set a high standard of political integrity for future democratic leaders to emulate. Although he remained the leader of a privileged class, Peel never lost sight of his obligations to all as a national leader. Arguably he remained a scion of the cotton industry, but he died a squire’s death from injuries suﬀered in a riding accident. Leaders of the caliber of Walpole, both Pitts, Fox and Peel might be regarded as heroes of the British parliamentary tradition. Though deeply engaged in the most divisive issues of their day, they all transcended sectional politics by accepting the responsibility to make the system workable. To that extent they were pioneers of modern government, as well as robust political practitioners. What did these champions of constitutional democracy have in common? First, of course, they all belonged to the gentry class of England. They maintained the aristocratic system of rule. Parliament in their day was not yet the “theatre of party politics, but the arena of individuals and family networks”. The essence of the political system, from the era of Walpole to the time of Peel, were these networks, the cult of inﬂuence, and the personal style of management (Langford, 2002). They were expert manipulators of the status quo. Not even the liberal Fox was interested in pressing for a Jacobin upheaval like his contemporaries William Godwin (1756-1836) or William Hazlitt (1775-1830). It was Pitt the Younger who introduced the Gagging Acts in 1794, silencing for a generation the voice of radical reform (Marshall, 1993). Yet, with the exception of Fox the oppositionist, they all displayed the modern understanding that, on occasion, even the most partisan of politicians have to practice the art of compromise in order to develop stable government. Today we might be inclined to assume they all possessed a “political personality”. But the system evolving tolerated a wide diversity of temperaments. Walpole and Peel, a century apart, were similar in many ways: strong in character, reliable, well educated, incorruptible, essentially men of peace. Pitt the Elder, the “Great Commoner”, was an irascible demagogue, whose fashionable bellicosity drove Walpole reluctantly into the pointless War of Jenkin’s Ear. Charles James Fox, like Walpole, was a man of exceptionally good nature and good humor. George III was one of the few who actually disliked him, and blamed him for seducing the Prince of Wales into

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the pleasures of a libertine lifestyle. He postured convincingly as a lazy and unambitious playboy, but his instant wit made him, it was said, the most dangerous orator in England. Ten years his junior, the sober Pitt the Younger made a greater contribution to the goal of responsible bureaucracy, oﬀering comparison with Robert Peel as a leader who recognized the inexorable trend toward the “administrative state” of the modern world. Other historians have argued that the British ethos of civic responsibility and the parliamentary system emanated out of the unique conditions of the English culture. If so, could that tradition be transplanted to foreign soil as part of the “rule of law” ideal? Speciﬁcally, could it take root in America? United States: Constitutionalism and the Federal Experience (1787-1865). After the civic upheavals of the 17th century, “ideological politics” in Great Britain had virtually ceased to exist. Even the thunderous declarations of the French Revolution had relatively little eﬀect on the tenor of political debate in Parliament. On the other hand, the strains of the American War of Independence did raise fundamental questions in London about the scope of constitutionalism in the modern era. Admittedly, the uprising of the American colonies in the late 18th century had not been truly “revolutionary” in the societal sense. It was not designed to release Americans from a state of repressive colonial subjugation. The American settlers and their descendants were transplanted Europeans who had enjoyed a large measure of selfrule. Except at the extremes of the economic hierarchy – the land-owning elite and the slaves – the level of wealth in the American colonies was higher than among the corresponding classes in Europe. There had been no systemic exploitation. There was no universally established principle that all taxpayers had a right of representation. Rather, America was a natural laboratory for constitutional innovation. As a “new nation”, the United States had carte blanche to develop its own system of legitimacy (Palmer, 1964). The political system that evolved in America between 1787 and the Civil War reﬂected the struggle between competing ideological conceptions of “good government” that were to animate the continent of Europe throughout the 19th century. For many Americans, economic development was the ﬁrst priority for the new republic. For them, an eﬀective union depended on a viable manufacturing sector, eﬃcient transportation facilities, and sound ﬁnancial institutions. All of these requirements could be met only with a strong central government directed by men of means with good judgment and practical skills. For others, however, the vision was of a simpler and purer rural society best served by a minimal, or at least modest, government structure. Trade, for them, was important, but as an auxiliary service. The former focused their priorities on rapprochement with the British because of traditional ties and mutual economic convenience; the latter held on to their grievances against an enemy that was still powerful and threatening. The views of the former were most clearly enunciated by Alexander Hamilton (1755-1804); those of the latter by Thomas Jeﬀerson (1743-1826). This political or emotional divide between the two factions might have caused an oscillation, as in France, resulting in the displacement of one constitutional order

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by another, as the pendulum swung. In fact, however, the United States remained constant in civic purpose within the framework of one continuing constitution. Although subject to experimentation and amendment over time, the US Constitution was to be for the ages, ﬁxed and stabilized by fundamental principles and institutions devised at the birth of the nation. How did this come about? It has been observed by Palmer (1964) that there was never any revolutionary extremism in American thought or behavior. The existence of a physical release into the prairies of the West may have saved the political system from having to provide relief from collective urban frustrations. The call of the open appealed to the deeply individualistic ethos of many Americans, deﬂecting popular enthusiasm for dangerously socialistic ideas like a comprehensive, nation-wide system of public schools or a national police force. Nor was there any tendency to radical counter-revolutionary opinion, such as that of Burke or De Maistre. At heart, 19th century Americans were constitutionalists, looking for civic adjustments, not reversals, as time unfolded. Behind their entrepreneurial spirit was a conscious need to build on solid foundations. The likeliest explanation might be that the individuals who assumed leadership among the Founding Fathers were remarkably similar to men such as Walpole, the Pitts, Fox, and Peel. They were landed gentry or successful businessmen of English or Scottish descent, schooled in civic matters, accustomed to the challenge of leadership. Though exposed to the European Enlightenment through books, they were mostly guided by practical consideration of the options and opportunities actually available to them in their own unique environment. Yet it was they who sounded the “bugle call of universal constitutionalism” (Friedrich, 1968). By general assent, the most inﬂuential molder of the US Constitution was James Madison (1751-1836). Like many others at the founding of the nation, Madison grew up within the embrace of a wealthy, slave-owning family in the South, on a plantation estate in Virginia. He possessed the advantages of early instruction by an erudite Scottish tutor and of a genetic disposition to lead. Most of his class proceeded to William and Mary, but James was sent instead to Princeton, the most “progressive” teaching institution in America (Burns, 1968). There he found himself, an Anglican, surrounded by the inﬂuences of Scottish Presbyterianism and inﬂamed by the spirit of patriotism, both exempliﬁed by the reformist John Witherspoon, the university’s forceful president. Madison was also one of the ﬁrst Southern gentlemen to attend Princeton, located in the distinctly Northern political culture of New Jersey (Peterson, 1974). Early in life, Madison had no presentiment of the pivotal role that he would acquire in American political history. He was a rather delicate youth, staid and mostly conﬁned to books. Apparently he did not expect to live long. As it turned out, he would outlive most of his contemporaries, longer than necessary to become the fourth President of the United States. As the lengthening years surprised him, he continued to dress in black. In temperament and abilities he might be compared with Pitt the Younger. Yet, when he married Dolly at the age of 43, it was to a delightfully vivacious buxom lady with a zest for social engagement.

The Ruling of the Modern World (1815-1905)

It was events and connections that drew Madison into the political arena. As a lawyer with an exceptionally brilliant reputation, he was appointed to the Virginian delegation to the Constitutional Convention in Philadelphia in 1787. The negotiations during that hot and stuﬀy summer were arduous. There was no easy road to compromise. However, the ﬁnal product that emerged bore, above all, the imprint of Madison’s creative mind. The Virginians arrived with a carefully prepared set of proposals. Most historians have taken Madison to be the chief drafter of the Virginia Plan (Brookhiser, 1999; Brant, 1970). Others dispute his authorship, but concede that the document reﬂected his views (Burns, 1968). The proponents fell immediately into conﬂict with William Patterson and his colleagues from New Jersey. All delegates at Philadelphia accepted the need for a written constitution, but they diﬀered widely and vociferously on the structure that should be constructed. At the time of assembly, the union in existence, under the Articles of Confederation, consisted solely of a one-chamber Congress (Jensen, 1963). The provisional arrangement preserved, virtually intact, the sovereignty and independence of the states, which had recently broken out of their colonial status. The New Jersey Plan envisaged only a modest revision of Congress, including the vesting of a general taxing power. By contrast, the Virginia Plan called for a bicameral national legislature with the power of veto over state laws. Under both plans, Congress would appoint a national executive and judiciary. Those favoring a strong union (the “Federalists”) found the New Jersey Plan unacceptable. It left the constituent states much too independent. Moreover, given the disparity between the large states and the small, the proposal for equal representation among them seemed to condemn the enterprise as wholly incompatible with the principle of majority rule. On the other hand, many delegates were alarmed by the boldness of the Virginian vision of a national government, which could not be imagined without conceding the loss of the sovereignty that the new states thought they had just won by war. Alexander Hamilton was critical of both plans. More than most of the other delegates, he was committed to the goal of a strong central government, but he knew that his own advocacy was too extreme to carry the day. He discovered, however, that his views were generally compatible with Madison’s. Not least, they were both strong adherents to the principle of popular sovereignty (Konefsky, 1964). They also shared the same bleak assessment of the mood of the occasion, confronting “petty states ... jarring, jealous and perverse”. Raising money for a strong central government would be like “preaching to the dead” (Brookhiser, 1999). Yet there was no doubting what was at stake, nor the intellectual ﬁrepower assembled (Rossiter, 1966). If they failed, there was no hope for the Union. Hamilton had been a New York delegate at the First Congress (1782-1786), which had appointed Washington as President and Franklin as Minister to France. Like Madison, Hamilton was a lawyer, but one whose talent lay in developing a persuasive argument on the basis of a single emotive principle. He was more ﬂamboyant and less precise than Madison. His love of display was reﬂected in his fondness for brightly colored waistcoats. His two co-delegates from New York so disliked the ideas of the Virginians that they left the Convention early and did not return. Under the bloc-vot-

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ing system, Hamilton felt he had been disenfranchised, but this did not discourage him from pursuing an active role at Philadelphia. Like many of his contemporaries, Hamilton was convinced that the British system of government was the best in the world. “Democracy” had not yet become a core concept in American politics. Of the British trinity – Lords, Commons, and Crown – only the monarch had to be excised by the young republic. As Brookhiser (1999) notes, most delegates agreed with the lone New Yorker that popular choice should be ﬁltered out through protective layers of representative politics. Republican government did not have to be fully democratic, provided that in the long run it reﬂected, in a general way, the will of the people. It was Madison who was the most knowledgeable person present in Philadelphia, and it was his impeccable notes that provide the most reliable account of the famous secret-session meetings (Madison, 1966). He brought with him the results of a wideranging study of previous eﬀorts at union among autonomous states, such as the Amphictyonic, Lycian and Achaean leagues of the Greek city-states, and recent attempts at a federal system among the Germans, Belgians and Swiss. All, he concluded, had failed because of a fatal weakness at the center. He also delivered a remarkably analytical presentation on the “Vices of the Political System of the United States”, which, he demonstrated, included various speciﬁc violations of the law of nations and of the existing treaties with France, Great Britain, and the Netherlands (Brant, 1970). The ﬁnal compromise proposal at Philadelphia was to settle on a “general” government system consisting of a supreme legislature, executive and judiciary, but within a larger institutional framework characterized by a “division of sovereignty” between two levels of “legitimacy” an ingenious and totally original combination of “national” and “federal” models. Characteristically, it was Hamilton who provided the energy behind the resulting battle in defense of the US Constitution. It was Hamilton who recognized that the massiveness of the opposition to a strong central authority necessitated the development of a powerful rationale, which would take the form of a series of essays, called The Federalist (Carey, 1989). First John Jay, and then James Madison, were persuaded to join Hamilton in this venture. Among them they produced America’s greatest classic on federalism and free government (Dietz. 1960). These essays explained and defended the work done at Philadelphia based on the principles of republicanism, federalism, government by choice, representation, limited government, and the separation of powers: in short, all the premises of good government, democracy, and the rule of law, as seen by America’s leading constitutionalists (Epstein, 1984; Carey, 1989; Dietz, 1960). Yet, as Epstein observes, possibly no political statement has been more candid about the dangers inherent in a philosophy that encourages the participation of the ambitious and the passionate. The formula proposed at Philadelphia had ﬂaws that could not be cured without good luck as well as good judgment in the development and juxtaposition of the pivotal institutions of the state. The most obvious ﬂaw in the work of the Philadelphia Convention was its incompleteness: the lack of a deﬁnitive statement of individual rights that could not be abridged by federal or state authority. The English bill-of-rights tradition had been devised from a succession of constitutional developments starting with the medieval

The Ruling of the Modern World (1815-1905)

Magna Carta. It was reaﬃrmed in the Bill of Rights enacted in 1689, whose acceptance was the condition attached to the oﬀer of the British throne to the Prince and Princess of Orange (later William III and Mary II) at the “Glorious Revolution” of 1689. The most notable predecessor of the American Bill of Rights was the 1776 Declaration of Rights drafted by George Mason, chief author of the Virginia constitution and a Jeﬀersonian opponent of strong central government. Despite their lukewarm embrace, most Americans were stirred by the 1791 Declaration of the Rights of Man and the Citizen: their French allies’ espousal of American ideals enunciated in the declarations that were adopted by various states along the lines of Mason’s prototype. Shortly before the close of the Philadelphia Convention, Mason had proposed the appointment of a committee to prepare a Bill of Rights, but the motion, without the support of any state, was defeated. The need for such an enactment was questioned by many, including Alexander Hamilton in The Federalist, but during the ratiﬁcation debate on the Constitution several states followed the lead of Massachusetts in linking ratiﬁcation with the proposal for an early set of amendments designed to incorporate a bill of rights. A gathering sentiment to that end became irresistible, though it was necessary to overcome the suggestion that ratiﬁcation might become conditional upon such an incorporation. Madison, caught in the middle between conditionalists and revisionists, produced a plan of amendment that eventually formed the federal Bill of Rights, going beyond the Virginia Declaration of Rights through additional features adopted by the ratifying conventions of various states. “He played oﬀ Scylla against Charybdis instead of trying to go between them” (Cohen and Kaplan, 1976). In eﬀect, his famous ten amendments were drafted in the understanding that there would be no other amendments that might weaken the powers of central government. Among the remaining uncertainties waiting to be resolved in the following generations was the issue of paramountcy. The diﬃculties of compromise diplomacy at Philadelphia had prevented a clear resolution of the status of the US Constitution weighed against the will of the people, as expressed through subsequent federal legislation enacted by the US Congress. There was no explicit provision in the text that awarded the power of judicial review. John Marshall (1755-1835) had been a controversial ﬁgure during most of his political career. At the Virginia’s ratifying convention in 1788, the young Virginian had tried to allay the fears of the Anti-Federalists that too much power had been given to Congress under the Philadelphia formula. If Congress should engage in unwarranted legislation, he had argued, then “it would be considered by the judges as an infringement of the Constitution which they are to guard ... They would declare it void ... To what quarter will you look for protection from an infringement of the Constitution, if you will not give the power to the judiciary? There is no other body that can aﬀord such a protection”. Marshall continued, like Hamilton, to hold the view that judicial review of federal (as well as state)legislation followed the logic of the Constitution. This was contrary to the view of Jeﬀerson and many others that vesting such a power in the courts was at odds with the principle of popular rule: the “consent of the governed”. For Marshall

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the matter was simple: the Constitution was “a superior paramount law, unchangeable by ordinary means”, and so “a legislative act contrary to the Constitution is not law”. The key to the American system of constitutional authority was a “sacred text” at the apex of a legal hierarchy. The courts would have to be conceded the authority and responsibility to determine questions of constitutionality. In 1803, just two years after Marshall’s appointment as Chief Justice of the Supreme Court of the United States, an opportunity arose in the Marbury v. Madison case to grasp the nettle. Marshall avoided a direct collision with Jeﬀerson by deciding the issue before the court on a narrow ground, but in the course of the decision he suggested obiter that an act repugnant to the Constitution cannot become the law of the land. This “theory”, as he called it, was “one of the fundamental principles of our society”. Without referring to the actual proceedings of the Constitutional Convention, he attributed to it a philosophy of government that accepts the supremacy of the Constitution and the power of judicial review as the indispensable instrument for its preservation (Konefsky, 1964). Jeﬀerson was furious at the dictum, but could do very little about it. Thereafter, Marshall regarded all criticisms of the Supreme Court as “veiled threats to subvert the Union itself ”, and he had no shortage of opportunities to press his arguments to the nub. For example, in Fletcher v Peek (1810) the Supreme Court for the ﬁrst time found a state law unconstitutional. Subsequent rulings throughout the following decades seemed to conﬁrm that judicial review applied not only to federal and state legislation but to all agencies of government: acts of the President, federal administrative bodies, federal lower courts, state governors, state courts, all counties and municipalities, schools and other special districts. In another case, McCulloch v. Maryland (1819), the Marshall Court unanimously struck down Maryland’s claim to a tax on the operations of the Second Bank of the United States, which had been incorporated under federal legislation in 1816. The Court held that the latter enactment was constitutional and the state tax unconstitutional. The importance of this decision was not so much in the ruling itself, but in the legal rationale presented for later development (Gunther, 1969): in eﬀect, that the federal government must be acknowledged to possess “all powers convenient and suitable to carry on the nation” (Cotton, 1969). After Marshall, fundamental constitutional issues continued to arise. The most notorious set-back was the Dred Scott v Sandford decision of 1857. Unlike McCulloch, this case involved a truly fundamental issue of national policy. Under the Missouri Compromise of 1820 it had been decided that a slave economy could be introduced into the southern, but not the northern, part of the newly acquired territory of Louisiana. The same issue of slavery extension had resurfaced in the 1840’s with the acquisition of Oregon and Mexican territories. Congress was deadlocked: all but one of the Northern states wanted to outlaw slavery throughout the whole domain, while the Southern leaders denied that Congress had power to exclude slavery from any territory. It was a politically unbridgeable, cultural and ethical, divide. Scott was a slave in Missouri who had been taken by his master to live in “free” territory where the Missouri Compromise purported to outlaw slavery. On returning to Missouri, he sued his new master for his freedom on the ground that he had been

The Ruling of the Modern World (1815-1905)

released from bondage by reason of his residence in free territory. On behalf of the majority, Chief Justice Roger Taney (1777-1864) denied that Scott was free, holding that Congress was not authorized to prohibit the ownership of slaves in the northern area of the territory. The Missouri Compromise was void. A slave, the court held, was not a “citizen” in the sense intended by the Constitution, and so the plaintiﬀ lacked the rights created under the Fifth Amendment, since he was resident of a state that had not seen ﬁt to extend these rights to slaves under its own legislative authority (Mendelson, 1980). The depth of the divide was tragically revealed in the most terrible of civil wars and in the assassination of Abraham Lincoln. The issue of slavery had been impossible to resolve at the Philadelphia Convention in 1787. At a meeting forced into numerous compromises, it is not surprising that both slavery and slave-trade questions were ﬁnessed. On the latter, for example, the delegates had acquiesced to Roger Sherman’s succinct observation that it was “better to let the southern states import slaves than to part with those states”. For some Northern states, there was a hoped-for quid pro quo in an assurance by the Southern states that they would let the Navigation Acts go unchallenged. Several were extremely unhappy with the weakness of the outcome. George Mason of Virginia, for example, himself a slave owner, attacked Madison, declaring himself against allowing the Southern states into the Union unless they discontinued the slave trade. The compromises held, and the protests continued. In 1811 President Madison appointed the young Joseph Story (1779-1845) as Associate Justice of the US Supreme Court. At 32 he was the youngest appointee in the Court’s history and still is. Madison had hoped that Story would counteract the federalist bias of Chief Justice Marshall, but instead Story was won over to the Marshallian view of US constitutionalism.. In 1817, however, he denounced the clandestine continuation of the slave trade before a grand jury in Boston. If all men were free and equal, as promised in the Declaration of Independence, how could slaves be excluded? “If we tolerate this traﬃc, our charity is but a name, and our religion is no more than a faint and elusive shadow” (Thomas, 1992). The shadows persisted. Even with the abolition of American slavery under the Thirteenth Amendment in 1865, racial discrimination would continue to erode the moral ﬁber of the nation to the end of the 20th century (Cohen and Kaplan, 1976). Yet despite these tragic failures of the American constitutional experience, it is the US model that has had by far the most extensive inﬂuence on constitutional systems in Africa and Asia (Beer, 1992). Reﬂections. One of the most durable contributions of the 19th century was surely the invention of constitutional government. Admittedly, progress toward our present ideal of civic benevolence was gradual and very spotty. At the heart of progressive systems of government today is an institutional recognition that all citizens and groups have basic rights that cannot be abridged by the exercise of authority, and that to them all state agencies owe responsibilities that can be enforced. Admittedly there are still considerable variations in the understanding of what constitutes good government. Constitutions that look good on paper are often found to be seriously

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defective in operation. But the idea that constitutions should be taken seriously was ﬁrmly planted in many political cultures by the end of the 19th century. The story of constitutional development in the 19th century is of enormous signiﬁcance for international law in the early 21st century. As recently as the early 1940’s it would not have been obvious to most jurists how these important principles of civic benevolence or good government could be considered part of international law. Either they belonged to the separate discipline of political science, excluded from the science of law by the strictness of deﬁnition; or they existed as legal principles and institutions at the “municipal” or national level of legal development. How radically the concept of “world law” has expanded since the 1940’s! Surely none can deny the remarkable impact that the rise of human rights consciousness has had on legal logic and sentiment. In matters of ethical signiﬁcance, it is no longer acceptable that fundamental civil rights can exist solely at one level and not at the other. The story of human rights law is, increasingly and inexorably, one of merger. More than ever before, judges dealing with human rights cases at a national (or sub-national) level can be persuaded to take notice of relevant decisions in other jurisdictions, and of basic charters with universalist credentials. The fact that the most important constitutional entitlements and arrangements were elucidated at the national level, within states or federal unions in the 19th century, is no longer a reason to exclude such crucial developments from a history of international law. On the other hand, the desire to keep the science of international law separate from the domain of political science is still apparent, especially outside North America. Not everyone in the international law community agrees with Franck (1992) that there is an emerging global “right to democracy”. Yet many accept the notion that democracy is a crucial component of the “cosmopolitan ideal” of governance (Fox and Roth, 2000; Holden, 2000; Held, 1995; Archibugi and Held, 1995). At least in the West, it is common to argue that the “legitimacy” of a national government is an appropriate issue in international law at its point of conjunction with international politics. Many international lawyers today welcome the idea that global institutions have a moral responsibility to promote the most vital elements of constitutional democracy and, in certain cases, to protect the victims of the most repressive regimes, whether a majority or a minority in their own land. Controversy is unlikely to abate on speciﬁc issues related to the right or responsibility of the “international community” to intervene in the worst cases of civic malevolence. Many have some sympathy for the cultural relativist position that each society has a “natural” entitlement to determine or shape its own tradition of rule. Yet even outsiders might be allowed to suggest that repressive national traditions are open to challenge by champions of the victims of tyranny. The American federal model of government has had a number of imitators in other countries, such as Canada, Australia, Germany and Switzerland. This may seem to be a matter for comparative government specialists, but the constitutional model of international law is now in vogue both at regional and global levels of legal development. The most recent experiments within the European Union bring the drama of immediacy to the concept of a quasi-federal regional entity emerging out of the principle of “divided sovereignties”. Perhaps the current European issue of constitu-

The Ruling of the Modern World (1815-1905)

tionalism is not so fundamentally diﬀerent from the structural question that faced the Confederacy of sovereign American states in 1789. More boldly, it might be argued that reform of the United Nations should proceed under the inﬂuence of some of the constitutionalist ideas reviewed above, as well as of newer ideals and practices, to which we shall wish to return when we catch up with the chronology (Macdonald and Johnston, 2005). Despite its seminal contribution to the ideal of constitutional democracy at the national level, the 19th century is not noted for moral advancement in promoting the freedom and independence of foreign peoples. The imperial ethos of that era inﬂated the value of citizen loyalty to state authority, deﬂating that of allegiance to an emerging world community. Despite the reemergence of republicanism, mostly in the United States and Latin America, most states, East and West, in the 19th century were monarchies or empires that laid claim to the allegiance of their “subjects”. The conduct of international relations was still generally considered an amoral business, regardless of the form or ideology of one’s national government. Foreign policy was dictated by a concept of national interest, whose legitimacy was not commonly put in doubt. Patterns of Colonial Dependency The 19th century was the ﬁnal and most active period of overseas colonization. The military and naval superiority of the Western powers virtually ensured success for those wishing to exert their imperial will on weaker countries. It is one of the sadder ironies of world history that the century that witnessed the culmination of the “classical period” of public international law was also a period notorious for unscrupulous Realpolitik. Admittedly, many in the “tower” at the end of the century had called for a more responsible kind of world order. In the “arena” even the hard-headed realists had begun to recognize the need to develop international organizations in certain areas of transnational interest and concern. The seeds of 20th century world order had been sown. But there was still very little in place, institutionally, to check the politics of imperial prerogative. By 1905, almost two-thirds of the territories outside Europe were dominated – and more or less directly ruled – by colonial regimes designed to extract imperial advantage from the resources made available to them. The global aspirations of the capitalist economy had been clearly envisaged and largely realized. The historic challenge to world capitalism and imperialism had been articulated, but the forces of resistance had not yet been harnessed. Questions. How widespread was the system of colonization? How much variety was there in the dependent regimes around the world? How, and where, did certain colonies achieve success in the pursuit of autonomy? The British Model of Imperial Control. Despite the remarkable extent of the British Empire and the paramountcy of the British Navy, the imperial government in

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London did not pursue a systematic policy of conquest. The War of American Independence had taught the perils of imperial overreach. Distrust of colonial entanglements was a common theme of political discourse in the early- and mid-Victorian era, even as British colonies multiplied around the globe. Colonies were generally conceded to be “tricky things, costing money, conferring few beneﬁts, engaging the metropolitan country in fruitless strife with other powers and native peoples and in the end usually turning round to bite the hand that fed them” (Roberts, 1995). Among hardheaded Britons, justiﬁcation for imperial expansion had to be found in commercial advantage, as with their Dutch and Portuguese counterparts. The sense of national glory to be seized was rarely as explicit in Britain as in France until the last decade or two of Victoria’s reign, as the sun was just beginning to set in a darkening sky. The prevailing imperial value was order. Bloody repression was always a thinkable option in the ﬁeld, and not necessarily the course of last resort. “The British armies of the day fought ferociously, matching barbarism with brutality, and seldom hesitating to employ the most terrible of weapons ... against the most primitive of enemies” (Morris, Jan, Pax Britannica, 1985). The British Empire’s success owed much to its possession of two formidable armies. In 1838 the British Army proper, headquartered in London, consisted of three elite regiments of guards, eight calvary regiments, thirteen regiments of infantrymen, eight regiments trained in artillery, and a small corps of engineers. Of its total complement of 100,000 ﬁghting men, rather more than half were garrisoned overseas, defending the young Queen’s acquisitions. Larger still was the Indian Army. Though often placed at the disposal of the Crown, it was raised and salaried by the British East India Company. This was essentially a mercenary force, staﬀed by Indian, Irish, British, European and other recruits under British oﬃcers. Privately employed, these soldiers also served the public domain, marching over the boundaries of modern terminology, like mercenaries of the past. It was an eﬃcient military machine. Some 250,000 strong, it was second only to the Russian army – and second only in size. The two armies serving the crown imperial did not care for each other. Sometimes they were obliged to ﬁght together, but they would just as soon not. But between them, they were extremely eﬀective in the provision of military muscle. As Jan Morris notes, “the story of Victoria’s Empire, as it unfolded during the next half-century, weaved itself around their joint existence, and often followed their trumpets”. But colonial policy at the center was mostly dictated by an order of pragmatism. The continuing preference in London was to rule as lightly as possible, selecting administrative responses to troubles as they arose, ﬁtted to the situation and the military and other resources at hand. Tales of slaughter overseas were generally not well received at home, either by oﬃcials or the general public. In the cultural domain, the richest commissions were earned by British artists willing to depict the battleﬁeld in heroic style, crafted for popular consumption, and the leading composers stirred hearts by capturing the pomp and circumstance of imperial splendor. Morris argues that holding authority over such a “prodigious sprawl” of territories around the world called for a high degree of ﬁctive genius. The world, she suggests,

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was persuaded by the audacity of British empire-building that there was a uniﬁed strength of law and order at the center of things. In truth, there was never really any “system” of global authority based in London. The Crown, as the symbol of constancy, kept up the appearance that everything was under control, but the Empire-in-fact was a “splendid jumble”. The Queen was represented out there, under the sun that never set, by hundreds of oﬃcials both high and low: a viceroy in India, governorsgeneral in the Dominions, captains-general in strategic ports, commissioners and administrators everywhere else. In theory, of course, the colonies were subject to the unlimited authority of the Mother Parliament in London and then to the ever-changing conﬂuence of interests, ideals, and personalities within the British political system. In practice, however, Parliament was generally content to leave the running of the Empire – Ireland apart – to the professionals attached to the executive branch of government, except when the occasional opportunity for a politically juicy impeachment presented itself. Executive control over the British colonies emanated from two departments of government in London: the Colonial Oﬃce and the India Oﬃce. The former was established in 1854. It was then, and remained, a small and unpretentious agency, despite its responsibility for governing a third of the world: namely, the West Indies, North America and Australia (with Cyprus and Gibraltar thrown in); West Africa (construed to include Malta); South Africa; and Asia. Several protectorates, lacking colonial status, remained under the thumb of the Foreign Oﬃce. The philosophy of the Colonial Oﬃce favored non-intervention unless the evidence of trouble brewing compelled some course of action. India, on the other hand, was the jewel in the crown – or, rather, as Neil Ferguson (2002) suggests, a “whole diamond mine” – set apart from the rest of the Queen’s dominions. At the highest level of colonial authority, the Viceroy ruled India out of Calcutta, but in almost constant consultation with three or four senior civil servants in the India Oﬃce in London. From these two agencies, well educated and enterprising young men, runged up on Briton’s own imperial ladder of success, went out to run the greatest empire the world had ever seen. The British in India. India was seen by those young men to be the greatest colonial challenge of them all. To them, and most other outsiders, the history of the sub-continent had been one very largely of anarchy, a succession of disorders. The Muslim Mogul Empire was generally seen to be as arbitrary as the old order it had replaced, lacking any talent for eﬃcient and just administration of a hugely restive population. The British perception of the Indian past was not generous (Muir, 1917). But to believe that an outside power could bring in a suitable replacement required a most unusual, truly imperial, conﬁdence in one’s own capacities: a faith that one’s native institutions represented the summit of human achievement and could be exported even to the most alien of cultures. The story of British India cannot be encapsulated. The terrain is too densely convoluted with peaks and valleys. In London opinions on how to rule India ﬂuctuated from one extreme to another, from suppression to moderation. The policy of the day varied with the disposition of the Governor-General (later Viceroy), who was vested with a high degree of discretionary authority. London was much too distant from

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Calcutta for either the British government or the East India Company to maintain a policy of close supervision. Some of the key ﬁgures in India have been praised by historians for their seminal contribution to law, order, and justice; others have been condemned for their bellicosity, cultural arrogance, or administrative ineptitude. Most survived their prestigious appointment on the ﬂat ground of mediocrity. In large part, of course, India was acquired by force of arms. Treaties of peace with local potentates were usually imposed by victor on vanquished, or at least by the stronger on the weaker. In battle, both sides were usually guilty of barbaric excess. In 1799 General David Baird took his revenge on the pugnacious Sultan of Mysore, Tipu Sahib, whose father, Hyder Ali, had held Baird and his comrades in captivity for four years, chained in pairs. “God help the man that’s chained tae oor Davie”, Baird’s mother is reputed to have exclaimed, when she heard the news (Fry, 2001). Over 10,000 Mysoreans were slaughtered without mercy. Lord Harris, the commander of the British army, was appalled by the scale of the atrocities, and replaced the remorseless Scottish general with a mere colonel named Arthur Wellesley, who would become more widely known in later years as the principal victor at Waterloo. By the end of the 18th century, the East India Company had fallen into corrupt and ineﬃcient ways. Correction was applied by Henry Dundas, the ﬁrst Viscount Melville (1742-1811), who used his authority as President of the Board of Control for India to curb the Company’s more ﬂagrant privileges. In 1813 the weight of Parliamentary disapproval landed on the British entrepreneurs in India, when their long-established monopoly on the sub-continent was abolished by legislation drafted by Henry’s son, Robert. This marked the end of the mercantilist period of British rule in India, opening up the new Smithian ideology of free trade that would become the foundation of the British imperial economy. In the early 19th century, doing business in India was a remarkably venal occupation. As Fry has recounted, many of the worst oﬀenders were Scots. Some had built enormous fortunes there; other merely chose to avert their eyes from the scandals around them. But many of the reformers were also Scots, educated in the liberalizing stream of the Scottish Enlightenment at the feet of humanist scholars such as Dugald Stewart at Edinburgh University. The 1st Earl of Minto (1751-1814) (formerly Sir Gilbert Elliot), who was Governor General between 1806 and 1813 and the patron of Sir Stamford Raﬄes, had been put under the guardianship of David Hume. True to his upbringing, he followed a policy of religious toleration in India, encouraged orientalist scholarship and attempted to bar the entry of missionaries bent on conversion of the masses. Several who followed Minto in the following decades were men out of a similar scholarly mold, who “found little to fear or hate” in India, working to preserve some of the traditional institutions in the hope of saving the country’s moral and cultural independence. But it was the acquisitive side of British colonialism that prevailed. The defeat of France in 1815 had led to the extension of British authority in the south through annexation and treaties that secured British control over the territories of the local rulers (Majumdar and others, 1967). By the 1840’s, with the acquisition of the Punjab and Sind and the establishment of imperial authority in Kashmir, the British conquest of India as a whole was virtually complete (Roberts, 1995). Thereafter, down to the late

The Ruling of the Modern World (1815-1905)

1940’s, Indians would be governed by an alien elite possessing a remarkable self-assurance. The conﬁdence of the imperial masters was severely tested by the Indian Mutiny (or Revolt) of 1857. Before that “most horrible of imperial wars”, many of the British and Indian subjects of the Crown had lived together in a sort of bi-cultural community, respecting the best and tolerating the worst of one another. Yet Indian resentments were never far from the surface of polite behavior. When the eruption came, it came from an unexpected source: from the sepoys believed to be the backbone of loyalists in the ranks of the East India Company’s army. The underlying purpose of the Mutiny was to rid India of the British raj, but it was a muddled aﬀair, without a coherent strategy. Leadership was not oﬀered, but rather inﬂicted on the unwilling ﬁgure of Bahadur Shah Zafar (1775-1862), an old and blameless Muslim pensioner of the British East India Company, who was, nonetheless, still revered as the last of the descendants of the Mogul monarchs of the 18th century (Bahadur Shah II). A leadership role was also accepted, less reluctantly, by the Maharajah of Bithur, who to many Hindus represented the last of the Mahratta rulers. The uprising was triggered by the introduction of the new Enﬁeld riﬂe, whose cartridges were supposedly smeared with animal tallow. Early in 1857 the rumor circulated through the Bengal sepoy contingents that the grease was partly pig, abominable to Muslims, and partly cow, sacred to Hindus. “This was a device, it was whispered, by which the British meant to deﬁle the sepoy, or break his caste. Deprived of his own religion, he would be more or less forcibly converted to Christianity and used as cannon-fodder wherever the British needed him” (Morris, Jan, Heaven’s Command, 1998). Most historians are inclined to agree that the cartridges were in fact greased, and were the “fat in the ﬁre” (Sunderlal, 1972). Horriﬁc slaughters ensued. Whole compounds of Europeans were killed and mutilated. Hundreds of British men, women and children perished in the sieges of Cawnpore and Lucknow, and in the bloody aftermath. Other cultural and political grievances swelled the ranks of the mutineers, forcing the British and their loyal Indian troops to suppress the uprising with a ferocity fed by enraged accounts of earlier Indian atrocities committed against British captives. These tales acquired a mythic dimension at home in Britain, where the image of Indian innocence was gravely injured. Yet British India stayed ﬁrmly in place as the centerpiece of the Empire. Although never entirely quiescent under British colonial rule, the country beneﬁted from the introduction of public works and legal codes by a succession of relatively enlightened viceroys at the peak of the colonial hierarchy. Given the magnitude of the administrative challenge, India might be viewed today as the most impressive of Britain’s imperial achievements overseas. Imperial Diplomacy in Southeast Asia. India was the grandest of all imperial prizes, a fabulous possession treasured above all others. But it was also the base for acquiring and controlling a vast, fortiﬁed, trade-empire that stretched from the Mediterranean in the West to Singapore and Hong Kong in the Far East. India was the “foundation on which the entire mid-Victorian Empire stood” (Ferguson, 2001). Not

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least, it was the nerve-center of a colonial system that expanded throughout most of Southeast Asia during the 19th century. The most striking characteristic of Southeast Asia has always been its diversity. Lacking the cultural homogeneity of China or India, its special appeal is its blend of both and of several other distinct traditions. Southeast Asia has been likened to the Balkans of Europe: a region of small states with a rather brittle history of mutual rivalry, jealousy and suspicion, which lingers on today (Tate, vol. 1, 1971). Located at the periphery of the great empires of antiquity, it had evaded an ancient fate of colonization, but its rulers had had to learn the deferential arts of tributary diplomacy in order to maintain a degree of independence from distant powers. However, Southeast Asia lay along the sea-routes between East and West. It could not possibly escape the attention of the maritime empire-builders of the modern era. The acquisition of deep-water ports was the key to the building of the British Empire in an unusually seductive region: in a region rich in natural resources as well as in exotic mystery and sensual charm. In the early 19th century, British merchants in the East looked out covetously – even more so than the British government in London – at lands that must have seemed fated for colonization in an age that accepted the right of conquest “at Heaven’s command”. It was a military contingent serving the East India Company that began the process of British colonial expansion in Southeast Asia. In 1786 Captain Francis Light secured for the Company an almost uninhabited island lying just a few miles oﬀ the northwest coast of Malaya. Light, an ex-naval oﬃcer who had been discharged at the end of the Seven Years’ War, had taken up a career as representative of an European shipping ﬁrm in Madras. In short time, he applied himself to the Malay and Siamese languages and learned them well enough to engage in trade negotiations with local rulers and merchants on the Malay peninsula. Although lacking any powers to act on behalf of the Company, he positioned himself in 1772 as an intermediary between that powerful enterprise and Warren Hastings, the Governor-General in Calcutta. A decade later, he had achieved suﬃcient credibility in the region to be accepted as negotiator for the acquisition of the island of Penang (Kennedy, 1970). Penang was obtained not by force, but under a treaty of cession negotiated with the Sultan of Kedah. It was a business deal. The sheltered waters along the Strait of Malacca oﬀered the perfect location for a strategic port on the route between India and China, relatively safe from the fury of the sea and from the piratical communities on the mainland adjacent. Re-named Prince of Wales Island in the patriotic spirit of the day, it quickly attracted a cosmopolitan Asian population, and eventually, reverted to its local name, Penang became the supply point of Malayan tin, rubber and tea (Fry, 2001). Although always important, Penang was quickly surpassed by Singapore as a transit port. In 1819 the young administrator Sir Thomas Stamford Raﬄes (formerly Lieutenant-Governor of Java and now Lieutenant-Governor of Bencoolen in Sumatra) persuaded his patron, Governor-General Minto in Calcutta, that it lay in Britain’s commercial interest to extend British control throughout the Malay archipelago. Raﬄes was accompanied by Major William Farquhar, a Scottish soldier who had become an expert in Malay civic aﬀairs. Early in February of that year, with a dash

The Ruling of the Modern World (1815-1905)

of ceremonial display, Raﬄes concluded a treaty with Tengku Long, whom he had recognized, in a dispute over title, as the legitimate Sultan of Johore. In return for the Sultan’s cession of Singapore as a British settlement, the government in London through Raﬄes agreed to pay an annual sum of 5,000 Spanish dollars and to provide the Sultan with assistance against external threats , such as those of the Dutch. The British were careful to rule out any commitment to intervene in the internal politics of the combative Malay states. Farquhar, who was left to supervise the building of Singapore, was instructed by Raﬄes to deal cautiously with the Dutch and their Malay protectorates (Chew, 1991). The main purpose in creating a new, easily defensible, harbor was to develop “a huge emporium for the distribution of British manufactures”, but Raﬄes was also determined to weaken the foundations of Dutch rule in the East Indies (now Indonesia), which he deplored as vicious and unjust (Sar Desai, 1994). Despite the imperialist cause he served, Raﬄes has been respected by most historians and biographers as a genuinely liberal reformer and as an advocate of free trade, which is seen in retrospect to have had a liberating eﬀect on the economies of Southeast Asia. Sculpted out of mosquito-infested mangroves, Singapore was destined to become one of the world’s great ports, and a vibrant, multi-cultural society on the main sea-route between East and West. Not least, Farquhar would have wanted us to note, Singapore’s rising aﬄuence owed much to the entrepreneurial presence of the clannish Scots (Fry, 2001). Malacca, situated between Penang and Singapore on the west coast of the Malayan peninsula, became a British colony in 1824, under a convenient imperial exchange arrangement with the Dutch at the end of the Napoleonic Wars. As a reward for – mostly nominal – Dutch support against the French, the British government, to the disgust of Raﬄes, returned Bencoolen (Bengkulu) and other territories in West Sumatra to their chief commercial rivals in the region. Unlike Penang and Singapore, Malacca was of ancient lineage, a kingdom that had been shaped by Indian, Malay, Chinese and Siamese inﬂuences and ambitions before the arrival of the Portuguese in 1509 and its capture by the forces of Aﬀonso de Albuquerque in 1511 (Kennedy, 1970). Control of Malacca passed to the Dutch in 1641 after a protracted siege. Fear of French capture during the Napoleonic Wars induced the British to take Malacca in 1795, and although it was returned to the Dutch after the end of hostilities, it was later ceded to Great Britain under the Treaty of London in 1824. Thereafter for half a century all three ports were organized as the Straits Settlements, administered out of Singapore but subject to the British regime in Calcutta until they became a single Crown colony in 1874 and transferred to the Colonial Oﬃce in London. After 1833, when the East India Company lost its monopoly of the British trade in China – twenty years after losing its monopoly in India – all comers were free to compete for business in these three free ports. Despite constant pressures from the business community to extend British rule throughout the region -pressures from the Chinese as well as the British in Singapore – it remained the policy of the British government not to intervene in the internal aﬀairs of the Malay states. Gradually and indirectly, however, uprisings that seemed to threaten the Empire’s commercial interests throughout Southeast Asia, and fears of intervention by Brit-

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ain’s European rivals, resulted in the spread of British inﬂuence and authority and the creation in 1895 of the Federated Malay States (Loh, 1969). Though federal in name, the new arrangement was a unique, quasi-colonial arrangement. The new regime was based on the negotiated understanding that the British government would consult periodically with the local rulers of the Malay states. However, this commitment was never set down as a formal constitutional requirement. Actual control was exercised by a centralized government based in Kuala Lumpur, where the British ResidentGeneral ruled de facto on the basis of reports provided by the British Residents answerable to him. Like the Malay peninsula, Burma (Myanmar) was also seen in London to be an extension of India. In Burma too the ﬁrst British presence was that of the ubiquitous East India Company in the mid-18th century. An astute Burmese observer of the time compared the British to a banyan tree, “which ﬁrst leans on others while growing, only later to kill them when strong” (Myint-U, 2001). Growing commercial interest was reinforced by the British government’s strategic need to counter French colonial inﬂuence in the region and to deal robustly with the threat that the Myanmar empire was believed to pose to the stability of British India in the border areas. The Company’s logical response was to support those traditional tributary states that declined to acknowledge the indigenous Myanmar government’s claim to suzerainty over them. After the ﬁrst and costliest of the three Anglo-Burmese wars in 1824-1826, the Treaty of Yandabo purported to create a new accommodation between the two sides, but in Rangoon (Yangon) the British were suspected of perﬁdious intent, and the tributary states were reluctant to trade in that traditional relationship for the kind of subservience that had overtaken the traditional princes in British India (SarDesai, 1994). Anglo-Burmese relations ﬂuctuated very considerably between the 1830’s and 1880’s. They were complicated, on the British side, by lack of agreement among ofﬁcials in London, Calcutta and Rangoon on competing priorities, such as the consolidation of the East India Company’s interests, the opening up of overland trade routes to the interior of China, the challenge to the Burmese king’s monopoly over certain coveted commodities, and the suppression of French colonial inﬂuence in Myanmar and elsewhere in Southeast Asia. For one or other of these reasons, there were always British hardliners to press the case for a policy of suppression. To the extent there was any ﬁxed imperial policy direction, it came from the British colonial government in Calcutta (Harvey, 1946). From the Burmese perspective, the diﬃculties arose from a fundamental clash between the hardening British claim to paramountcy over Myanmar and the determination in Rangoon to preserve the sovereignty and traditional prerogatives of their kingdom. In the 1880’s the anti-British faction demanded that the 1826 Treaty of Yandabo be abrogated, asserted that the king had a sovereign right to declare a monopoly over any commodity, and insisted that certain restrictions should be placed on the movements of British subjects within the territory. In eﬀect, many Burmese rejected the view that their country had become a dependent territory, but with the collapse of royal authority it proved impossible to wage a successful war of resistance (Htin Aung, 1967).

The Ruling of the Modern World (1815-1905)

In turning to France for diplomatic support, the Burmese fed British suspicions of French interventionism. As Secretary of State for India, Lord Randolph Churchill (Winston’s gifted father) had little diﬃculty in persuading Lord Salisbury’s cabinet to issue an ultimatum, whose terms included the demands that Myanmar’s foreign relations should be conducted in accordance with the advice of the colonial government in Calcutta and that the Burmese authorities must assist in the opening up of British trade with China (Myint-U, 2001). The government in Myanmar remained ﬁrm in its claim to sovereignty and rejected all British demands inconsistent with that status. In response, Great Britain declared war on Myanmar in November 1885. Within two weeks Mandalay was captured, and Upper Myanmar was annexed to India. “The invaders showed scant regard for Burmese sensitivities or traditions. Soldiers wearing boots marched throughout the palace, shouting and singing bawdy songs and ordering royalty and nobility about. The king and his immediate family were given forty-ﬁve minutes to pack up; his request for a ceremonial march out of his capital on elephant was unceremoniously rejected. Instead, around dusk, in the twilight hour of the centuries-old Burmese monarchy, the royal family was taken in a bullock cart to a ship waiting to take them into exile to western India, while thousands of weeping Burmans, lined ten to twenty deep on either side of the road to the pier, witnessed the sad spectacle” (SarDesai, 1994). Five years later, Burma was ﬁnally “paciﬁed”. The Churchillian view that formal colonial rule over Burma was necessary to secure the imperial interest had prevailed over more moderate counsel. But any hope that the British Empire might earn a reputation for fair dealing was squandered. Despite the beneﬁts of British rule over the next 60 years – education, investment, law and order, and public works – the Burmese, signiﬁcantly, did not hesitate to throw oﬀ the yoke when the ﬁrst opportunity presented itself. Although rebuﬀed in Burma, the French succeeded in consolidating their grip on Vietnam after the loss of their empire in Europe in 1815. Like the British in China, they used the excuse of religious persecution of French missionaries and local converts to Christianity to justify more forcible interventions (Le, 1975). It was, unsurprisingly, the jingoistic government of Emperor Napoleon III that decided on armed intervention to punish the authorities in South Vietnam for mistreatment of French (and Spanish) missionaries. After three years of ﬁghting, the French in 1862 obtained a treaty with Emperor Tu Duc, which ceded to them several territories in the region that the French called Cochin China. More signiﬁcantly, Tu Duc agreed not to cede any other part of his kingdom to any other power. Christianity would be tolerated, and the French acquired the commercially important right to navigate the Mekong River, the languid but all-important international waterway that ﬂows through IndoChina. By the late 1860’s France had gained control over the whole of the Mekong Delta. Scholars have diﬀered in their explanation of France’s impressive imperial success among a people noted for their martial capabilities: weak local leadership, distractions in the North, and the lack of ethnic solidarity in the South (SarDesai, 1994). Some have attributed the Vietnamese failure to withstand the French colonial chal-

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lenge to the inﬂuence of the Chinese, especially the Chinese tradition of bureaucratic detachment from ignoble dealings with foreigners (Woodside, 1988)). Having gained navigational rights on the Mekong under the treaty of 1862, the French found themselves positioned to respond upriver to the Cambodian government’s request for French assistance. For over 400 years the Khmer monarchs had been vassals of Siam (Thailand), and since the late 17th century the hard-pressed Cambodians had been further burdened by Vietnamese demands for tribute in the Chinese manner, like other “little brothers” such as the traditional rulers of Burma and Siam. Cambodia had become a victim of Thai-Vietnamese rivalries. By the 1830’s the landlocked country had virtually become a part of Vietnam, but after 1862 the French claimed to have succeeded the Vietnamese as overlords in Cambodia. In the manner of the times, crucial imperial actions were often taken by oﬃcers with questionable diplomatic credentials. So it was with the gunboat initiative of Admiral Pierre Paul Marie Benoit de Lagrandiere, who sailed up the Mekong in August 1863. Like so many engaged in the British imperial service, this French oﬃcer had a formidable presence: a “viceroy, who often acted without reference to his nominal superiors in Paris” (Tully, 2002). Apparently without any formal authorization, the admiral signed a document that committed the French government to the responsibilities of a “protecting power” in Cambodia. The other signatory to the Franco-Khmer agreement was a chubby, but lively, prince, who was about to begin a 40-year reign as Norodom I despite bitter rivalry from his two half-brothers. To those around the prince, reposing such trust in an imperious Breton commander was a dangerous gamble, but Norodom was more than willing to acquiesce in a transfer of the burden of overlordship duties to the French. Any opportunity to free his country from the embrace of the Thais had to be grasped without ﬂinching. Legal technicalities intervened, when the Thais produced a previously secret treaty between Bangkok and Phnom Penh that seemed to conﬁrm that Norodom’s father had accepted Siam’s suzerainty over the Khmer. Diplomacy between the French and the Thais resulted in a treaty in 1867 that resolved the issues in an amicable manner: the Thais agreed to abandon their claim to suzerainty in return for French recognition of Thai sovereignty over territories in western Cambodia (SarDesai, 1994). Throughout the period of the protectorate, the French ruled Cambodia lightly, rarely wishing to intervene in the internal aﬀairs of a deeply conservative society (Martin, 1989). Down river, the French reputation for fair dealing was called into question in 1873, when Vietnamese obstructionist policies oﬀered a pretext for French resort to a more robust brand of diplomacy. The Vietnamese were coerced into accepting treaties that converted their country into a French protectorate in 1883 and 1884. Their emperor, in despair, turned to his overlord, the Chinese emperor, for assistance in resisting further territorial acquisitions by the French. After a serious initial defeat inﬂicted on them at the Sino-Vietnamese border, the French overcame the Chinese in 1885. Under the Treaty of Tientsin, China recognized the French protectorate over Annam (Central Vietnam) and Tongking, and conceded to France a special entitlement in Yunnan in western China, where the British in Burma had long coveted a privileged commercial status. The Treaty of Tientsin eﬀectively ended the ancient tributary re-

The Ruling of the Modern World (1815-1905)

lationship between Vietnam and China, and began a short but important period of dominant French inﬂuence throughout Indo-China (SarDesai, 1994). Throughout the last quarter of the 18th century and the ﬁrst quarter of the 19th, the Thais had been continuously and centrally involved in dynastic struggles with all three countries of Indo-China: Vietnam, Cambodia and Laos. Before having to contend with Great Britain and France later in the 19th century, the kings of Siam (Thailand) had experienced both the trials of warfare and the tribulations of diplomacy on their eastern borderlands: more often the arts of “coercive diplomacy” at the interface between the two. During the Ayudhyan period (1350-1767), it has been argued (Mayoury and Pheuiphanh Ngaosyvathn, 1998), the kings of Thailand came to recognize the Lao state as independent and accepted its kings as equal to themselves. Many Thai historians have tended to disagree, portraying Lao territory as an integral part of Siam at that time or as a Siamese dependency. In any event, the Thais were too preoccupied with the threat from the Burmese to reap the rewards of any special status in Lao territory. After the loss of their old capital (Ayudhya) in 1767, they had to re-group around their new base in Thonburi (later transferred to Bangkok across the river) under the energetic leadership of General Taksin (Phaya Takh Sin). Denigrated by established rulers in the region as a “son of the Chinese and a usurper”, Taksin, who was in fact half-Chinese , did turn to the Emperor of China for arms and for Chinese political pressure on the aggressive Burmese. Once established in Thonburi, the new king was able to reach an accommodation with the enemies in the north, and in due course to resume a more militant course in the east. In 1779 the Lao were defeated, their capital (Vientiane) was captured, and the Lao principality became a vassal state subject to the will of the re-emergent Thais. In later years, the Lao King Chao Anou (1767-1829) came close to challenging the hegemony of the Thais, but his forces were defeated in 1827, and the Vietnamese Emperor Minh Mang, his patron, chose a policy of accommodation with the Thais to secure Laos as a buﬀer zone between Vietnam and Siam. Given continuing animosities among the states of Southeast Asia, the arrival of external powers, the British and the French, introduced the prospect of a new kind of stability. At ﬁrst it seemed that the conﬁdent Thais might face down the British on the Malay Peninsula, when they pressed their claim to suzerainty over the Malay state of Kedah. But after the Anglo-Burmese War of 1824-26, Great Britain annexed territories that had been contested for centuries between the Thais and Burmese. More provinces fell out of Bangkok’s control as Western inﬂuence grew to the south and north of Thailand. The hopelessness of a policy of military resistance forced King Rama III into recognizing the value of treaty settlements – and the relevance of the international legal system that the intruders claimed to be bound to respect. In 1826 he signed a treaty with the British (the so-called Burney Treaty) and seven years later with the United States. Under both agreements British and American merchants were granted modest concessions in the kingdom. Despite the ubiquitous presence of the French and British colonialists in Southeast Asia, Thailand survived the 19th century without losing its legal independence. Alone

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among the countries of the region, the kingdom preserved its formal sovereignty, even as it too was obliged to make concessions to the European powers. Thailand was one of the few Asian countries to enter the 20th century as a fully accredited participant in the building of the organized world community, symbolized by its presence at the First Peace Conference in 1899. Any eﬀort to explain this remarkable achievement must take account of several contributory factors. For some, who take a geopolitical approach to world history, the explanation lies chieﬂy in Thailand’s geographical location. It suited the imperial interests of both France and Great Britain to regard that country as a natural buﬀer state: a quasi-neutral zone between Indo-China, where French hegemony was becoming a fact of life in the 1860’s, and Burma and the Malayan peninsula, where the British were in the ascendancy. Economic historians may attribute Thailand’s fortuitous escape from the coils of Western colonization to its relative lack of high-demand commodities, such as rubber, tea, iron, copper, wool and cotton. Its succulent fruits had not yet become well known in the West, and in any event it would take technologists a hundred more years to discover how to make them exportable to the richest markets. Arguably the Thai economy of the 19th century did not serve the top-priority requirements of the emerging global machine. Compared with some of its neighbors, Thailand was less attractive for foreign capital investment in an age of industrialization. Above all, perhaps, Thailand survived as an independent state because of its astute leadership between 1851 and 1910. The humiliation of China by the Western powers had sent shock waves throughout Southeast Asia, not least in Thailand where so many of the elite were of Chinese descent and respectful of the Chinese reputation for shrewdness. Observant Thais noted the weaknesses of Chinese society – its inﬂexibility and superstitiousness, its strict class divisions, and excessive regard for ceremonies and formalities – which were contributing to China’s own inability to evade mounting indignities imposed by the barbarians. To survive the onslaught of the West, it was essential to learn from China’s mistakes and to discover an indigenous path to the modern world. Reform in Thailand was led by two impressive monarchs. The ﬁrst, Mongkut (c. 1805-1868), ruled as Rama IV from 1851 to 1868. For 27 years before ascending the throne in middle age, the future king served an unusual apprenticeship under monastic orders. His Buddhist devotions were combined with frequent international travel and constant reﬂection on the challenge of statehood in the modern world. The secret, he sensed, must lie in the ﬁnding of a balance between the best of the new and the best of the old: between the need for material improvement and the deeply felt virtue of continuity with cultural traditions. By the time of his accession, he had established a network of foreign acquaintances at home and abroad, who provided him with an understanding of the reforms that might be attempted under his rule. Mongkut grasped the need for reform more ﬁrmly than any previous Asian monarch. But his personality was complex: “irregular and inconsistent; shrewd and arbitrary; magnanimous but suspicious and easily oﬀended; alternately generous and niggardly, kind and vindictive; a great humanitarian at one turn and petty beyond belief at another “ (Griswold, 1957).

The Ruling of the Modern World (1815-1905)

The ﬁrst necessity was to avoid any action that might oﬀer a pretext for intervention by Western powers. Treaties of commerce and friendship were concluded with Great Britain in 1855 and with France and the United States in the following year. In 1868 almost identical agreements were signed with Italy, Belgium, Norway and Sweden. The Anglo-Thai instrument was modeled on the “unequal treaties” accepted by China in the 1840’s. Tariﬀ controls were prescribed,. so as to grant relief to importers previously at the mercy of corrupt customs oﬃcials at the border. All agreements contained a most-favored-nation clause, ruling out the possibility of special concessions to particular countries. Similarly, Thailand, like China, accepted the system of extraterritoriality, whereby citizens of the other contracting party resident in Thailand were to be tried in any criminal or civil proceedings by the consul of the other party in accordance with their own legal system, not in the courts of the host state. Like China, then, Thailand acquiesced in a practice that oﬀended the most basic constructs of the international legal system: the principles of territoriality, equality and reciprocity normally applicable to transactions between independent sovereign states. Mongkut was shrewd in choosing the British to set the pattern of treaty-making. Great Britain was by far the strongest of the Western powers, yet seemed uninterested in further territorial acquisitions in the region. In consequence, British inﬂuence became predominant in Bangkok in the shipping, trade and investment sectors of the Thai economy, opening up export industries in tin and timber and other undeveloped resources. More students were sent to Britain than to any other Western country – though Thailand remained outside the ambit of the English common-law tradition – creating a special relationship with the leading power of the day without suﬀering any loss of esteem through subjection to an occupying colonial regime. Even bolder, and equally timely, reforms were espoused by Chulalongkorn (18531910), who reigned as Rama V between 1868 and 1910. Educated by an English governess (Anna Leonowens) and an English tutor (Robert Morant), Chulalongkorn followed his father’s example of improvement in many ﬁelds, including education (not yet universal), law reform, government administration, public ﬁnance, and the abolition of slavery. Most of his foreign advisers were British, but the Germans were used in the development of postal and railway services, and the French and Belgians in the revision and codiﬁcation of the laws of Thailand. Who is to say that these were not clever choices? In the conduct of foreign aﬀairs, Chulalongkorn had more trouble with the French to the East than with the British to the West. It became apparent in the 1880’s that the French government supported Vietnam’s claim to suzerainty over Laos rather than that of Thailand. It was ready to replace Vietnam as the overlord in that territory. It seemed essential for Thai security that French expansionism should be checked. In 1896 Great Britain came to the rescue by persuading France to join it in a declaration guaranteeing the integrity of the Menam basin, thereby creating a buﬀer zone to the East. However, some issues with Britain did arise, such as the applicability of territoriality to certain Asian minorities in Thailand. In 1909 an Anglo-Thai agreement replaced the system of British consular jurisdiction with bi-national courts consisting of Thai and British judges in such cases.

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The long period of Dutch inﬂuence in the Far East continued after 1815 despite the general decline of Dutch power overseas (Hyma, 1953). In the East Indies (Indonesia) Dutch rule was restored in 1816, but some of the liberalizing innovations introduced by Raﬄes lingered on, such as his land-rent system and many of his administrative and ﬁscal reforms. On the other hand, his eﬀort to introduce law reform, English style, on the other hand, was less successful: for example, the attempt to institute a jury system was a failure, a transplantation misconceived (Vlekke, 1945). The Dutch, back in power, had little reason to endorse changes eﬀected by the Englishman who had contributed so much to anti-Dutch hostility in the region. The return of the Dutch was not warmly received. Various economic and other grievances ﬂared into revolt. For ﬁve years the country was devastated by open warfare between the Dutch and the Javanese (1824-1829). Disease and famine, added to the losses on the battleﬁelds, may have taken as many as 400,000 Javanese lives over the next 15-20 years. With a treasury under strain, the Dutch colonial regime became more repressive. Yet a balance of sorts was obtained through revival of the old (“culture system”) technique of deal-making with the local chiefs, who once again took much of the blame for the exploitation of the peasants. The principal feature of the “culture system” was that the landowners and tenants were required to pay their dues to the government not in cash but in kind. It was hoped that in this way large quantities of produce could be exported for sale in the Netherlands to the proﬁt of the government and the Dutch merchants. The “culture system” meant that the economy of the Dutch East Indies was placed on consignment (Furnivall, 1944). At ﬁrst the arrangement was designed to be voluntary, but gradually it became increasingly obligatory, contrary to the free-trade principle. With the development of state monopolies, Java became eﬀectively a giant corporate structure, a “government plantation” (Vlekke, 1945). As the Dutch government back home became more liberal, under the inﬂuence of leaders like Baron Van Hoevell, the mistreatment of Javanese peasants began to weigh more heavily on the conscience of the nation. In 1848 the constitution of the Netherlands was amended to give the legislature (the States General) a role in the government of the East Indies, and six years later legislation was introduced to reduce the inequities inherent in the “culture system”. Genuine reform proved elusive, however, since the exploitative status quo suited the Dutch merchant community and the Javanese landowners. The Dutch people were divided over the need for radical change in the governance of their overseas territories. Eventually, in 1890, sugar was added to the cash crops made exempt from the “culture system”, but the lucrative coﬀee industry remained within it into the 20th century (SarDesai, 1994). Between 1860 and 1900 the “culture system” was manipulated increasingly to the advantage of the Netherlands, while the Javanese were relegated to manual roles as planters and processors, ensuring the rise of nationalist resistance in the 20th century (Abeyasekere, 1976). The Filipino experience of colonization was no happier than that of the Javanese. For several centuries the widespread, insular geography of the Philippines limited the eﬀectiveness of resistance to the Spanish colonists, who had settled there in the 16th century. Indigenous loyalties and aspirations rarely found expression beyond the lo-

The Ruling of the Modern World (1815-1905)

cal community. In the absence of a common language or a history of national union, it was particularly diﬃcult to repel the invincibly proud and well-armed Iberian nation. Virtually unchallenged, Dominican theology ﬂowed in to possess the Filipino people. Yet uprisings against the Spanish overlords were frequent occurrences: perhaps as many as thirty had ﬂared up by the end of the 18th century (SarDesai, 1994). In the following decades, however, an indigenous commercial elite began to emerge from the revenues derived from the export of tobacco, sugar, hemp and other commodities. Contact with the outside world increased with expansion of the free trade ideology in the 1830’s. The prospect of proﬁt from the sugar industry was particularly sweet (Larkin, 1993). The national economy boomed as never before with the opening of the Suez Canal in 1869. In the third quarter of the 19th century, Spain introduced a succession of educational reforms in its overseas territories, but in the 1870’s a more repressive regime was re-established, repelled by the dangers inherent in an educated, nationally conscious, middle class, and in reformist and nationalist leaders as capable and eloquent as Jose Rizal y Mercado (1861-1896). A brilliant ophthalmological surgeon, poet, novelist, and multi-linguist, as well as a political journalist, Rizal became a prominent associate of the reformist Propaganda Movement, whose purpose was to challenge the legitimacy of Spanish rule (Lightfoot, 1973). In 1896 Rizal was named, without his knowledge, as titular head of a secret organization (the Katiputan), which had vowed to oust the Spanish colonialists and create an independent Filipino nation. When the Katiputan instigated an armed revolt, Rizal was charged and found guilty of treason despite his advocacy of non-violence. Innocence, it was felt, was a slippery concept. Rizal’s execution earned him the status of martyred national hero, and enabled the Philippines to become the ﬁrst nation in the region to undertake the overthrow of a Western colonial regime. The idea of national freedom had now taken hold, but the Katiputan’s attempt to establish an independent republic miscarried. Instead of gaining independence, the Filipino people merely acquired a diﬀerent overlord. In 1899 the United States intervened with a show of “liberation” stage-managed by Commodore George Dewey of the US Navy (the “hero of Manila Bay”), as candidly acknowledged by him before a Senate committee (Graﬀ, 1969). Then the United States entered into a secret treaty with Spain, by which the government in Madrid was paid 50 million to withdraw from the colony it had held continuously since its occupation of Manila in 1571 (LeRoy, 1970). The Philippines had now become a dependency of the United States under an imperialistic deal engineered by the most vocal critic of the old imperialism. The rhetoric deployed by many Americans in defence of their intervention in the Philippines was strikingly similar to that of the European powers. Writers such as Alfred Thayer Mahan insisted on the need for expansion in order to supply the US economy with foreign markets for American goods. Overseas dependencies had become an economic necessity. His readers were told of the beneﬁts that had accrued from the judicious use of British naval power. Americans were reminded of their “manifest destiny”. The political system, like the nation itself, was divided on the

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merits of this new, muscular brand of US diplomacy, but the prevailing mood was interventionist. Mahan was best known as the leading advocate of the position that success in the international arena depended on the eﬀective use of a strong navy. His most famous work, The Inﬂuence of Sea Power on History, acquired authoritative status in the British, German and Japanese navies as well as the US Navy. The young Theodore Roosevelt is said to have devoured Mahan’s famous book, and its ideology, over a weekend, and the two men became increasingly inﬂuential together. “Their personalities contrasted – Mahan, remote and professorial with his white spade beard, and Roosevelt, 18 years his junior, the gesticulating and grimacing extrovert. But both believed in translating theory into action” (Karnow, 1989). Many Americans were profoundly disturbed by their government’s resort to force and deception in the Philippines, and to what could be construed as following the wrong kind of European example. The ﬁrst exercise of American imperialism created a psycho-cultural wound that has not healed. Worse was to follow. For over three years the US occupation encountered constant armed resistance. In retaliation, the Filipinos’ villages were shelled, their crops burned in the ﬁelds. Over 100,000 lives were lost, and almost three times as many were held in “concentration” camps, on the model of British detention practices in South Africa. In 1905 the resistance was ﬁnally broken. By an estimate given to the US Senate by General Franklin Bell in that year, one-seventh of the Filipino population had been killed, or had died of disease, in the course of the “paciﬁcation” of their country. The Capture of Sub-Saharan Africa. The African experience of colonization was quite diﬀerent from that of India and Southeast Asia (Jackson, John, 1970). Many empires and kingdoms are known to have existed on the continent before the arrival of external imperialists in the 16th century. Early indigenous African imperialism must have provided examples of benevolent rule and orderly relations with neighboring peoples, but the evidence is fragile (Oliver and Fage, 1962). External trade had penetrated the interior for hundreds of years, but local records are virtually non-existent. The depth and variety of African traditions can only be surmised (Fage, 1925). In the 11th century, the Arab invaders brought Islam across the northern territories of the continent, as far west as the Niger river. They discovered an important kingdom in Ghana, which would be eclipsed by the Mali Empire, until it in turn was overthrown by the Moroccans in the 16th century. Despite ancient trade links, Central, East and Southern Africa did not feel the impact of European colonization until the latter part of the 19th century. Yet the European capture of sub-Saharan Africa can be seen to have begun in the Anglo-French wars of 1793-1815. Previously, between 1652 and 1793, there had been a succession of Dutch and German settlers. Most were of humble rural origin, glad to have the protection of the Dutch East India Company, to which the States-General had granted sovereign rights in and around the Cape of Good Hope in 1652. Much of the world trade at that time was in Dutch hands. Amsterdam was a market for everything, like Antwerp a century earlier and London a century later (Thomas, 1997).

The Ruling of the Modern World (1815-1905)

The initial Dutch purpose at the Cape was merely to maintain a small fortiﬁed seaport as a link in the logistical chain between the Netherlands and its markets in Java and elsewhere in the East. The colony grew with unexpected swiftness beyond its tiny beginnings. Several of the Company’s indentured employees were released to develop a supply of local grain and vegetables a short distance inland, and quite soon the occasional trickle into the interior became a more constant stream. Many of the new settlers were Huguenots of French descent. As Protestants, these newcomers were not seen as a threat to the elite. They were carefully dispersed and within a generation they were speaking Dutch like their Boer fellow-residents (Thompson, 2001). The Dutch Cape Colony discovered in the 1650’s that its proﬁt-making interests were best served by importing the cheapest labor. The Cape became a slaveholding society, though mostly furnished by slaves from outside the African continent, which was becoming almost the only source of the Atlantic slave trade in the New World. By 1793 the slaves of the Cape Colony outnumbered the free burghers. The condition of the slaves varied with the owner’s wealth and disposition. Many made a bid for freedom, but most were hunted down. Only one slave out of six hundred was manumitted, and the free black population was never more than one-tenth of the free burgher population. Only a handful were able to acquire land, but in due course almost all of them were displaced in one way or another. Following their own course of economic development, the Dutch Cape settlers did not at ﬁrst resist the British military, who forced the capitulation of the Dutch East Indies Company oﬃcials in 1795. The purpose of preventing the colony from falling to the French was accepted as legitimate by the anti-French residents of the area. The entente between the Dutch and British became less cordial after 1807, when Parliament in London banned British participation in the slave trade, thereby depriving the colonial farmers of their customary source of minimum-cost labor. Eventually the British government, prodded by philanthropists at home and missionaries abroad, began to impose laws designed to protect the slaves in the Cape from the worst of excesses. Local implementation was not easy, but in 1838 the slaves became legally free (Thomas, 1997). Elsewhere in Africa the slave trade persisted despite the oﬃcial policies of the day. As long as there was a demand for the cheapest possible labor, it seemed that neither law nor morality could suppress it. Yet the founding of the freed slave colony of Sierra Leone in West Africa provided ground for a measure of optimism that this barbaric practice could be curbed. Sierra Leone became the shipping point for freed slaves in 1787, when the local Temne ruler, King Tom, agreed to allow some 400 runaway slaves, who had found refuge in England at the end of the War of American Independence, to settle at a river-mouth port that would become known as Freetown. The British naval ships that brought them over sailed oﬀ after the settlers had taken the ﬁrst electoral procedures to establish a self-governing community. When King Tom died in the following year, his overlord Naimbana assumed that the settlers were his tenants, and he and his sub-chiefs put their mark on a new treaty intended to conﬁrm such an arrangement. What they could not read was a text that declared his abandonment of all claim to the land where the strangers had settled in return for a consignment of commodities.

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Thus, as Fyfe, (1996) notes, “inadvertently he renounced sovereignty over land, and admitted into West Africa a completely new principle which transferred sovereign rights to aliens”. In 1791 a corporation – the Sierra Leone Company – was founded in London to administer the land that Naimbana had given away. In the following year, about a thousand runaway black slaves from the United States crossed the Atlantic from Halifax in Nova Scotia to provide the nucleus of the new community. The British Act for the Abolition of the Slave Trade was enacted in London in 1807, and Sierra Leone thereafter became an important base for prosecution of the British anti-slave trade campaign (Fyfe, 1962). The fact of abolition – ﬁrst of the slave trade, later of slavery – encouraged Europeans of conscience to invest in the colonization of West Africa, cleared by an ideology that seemed to justify the taking up of the “White Man’s Burden” (Ajayi and Oloruntimehun, 1996). The general partitioning of the African continent occurred mostly in the last two decades of the 19th century. It would eventually result in the present, apparently permanent, structure of legally independent African nation-states. By the 1880’s the Germans, Italians and Belgians had joined four traditional European empire-builders – the British, French, Spanish and Portuguese – in the infamous “scramble for Africa” (Ajayi, 1998). News of the resource wealth available in the African interior had circulated among all the capitals of Europe. If Africa had to be converted into a system of states, one might wish it had emerged out of some, diﬃcult-to-imagine, process of indigenous evolution that would have taken cognizance of existing tribal, ethnic, and linguistic patterns. In fact, of course, the seven competing European colonial powers followed only the logic of economic opportunity. The starting-gun for the race into Africa was ﬁred by the British in 1881. By then Great Britain – and commercial Europe – had acquired a strategic dependence on the Suez Canal, which had been built at the time of Benjamin Disraeli (1804-1881). Completed in 1869, the waterway had transformed the prospects of East-West trade, secured by a special treaty regime (Baxter, 1964). The eruption of an Egyptian nationalist revolution, led by a pan-Islamic agitator of Afghan birth, seemed to threaten the security of what had become a vital international waterway as well as an invaluable British imperial asset. As so often elsewhere over the ages, nationalism in Egypt at that time was driven by resentment at the imposition of a corrosive foreign culture, just as Egypt was beginning to recover from the declining but alienating inﬂuence of the Islamic Ottoman Empire. The occupation of Egypt was intended to be temporary, but the British military presence there was still the chief political fact in the region in 1905, and would remain so for another half-century. What ensued after the original intervention in 1881 was the creation of a nominally dual (Anglo-Egyptian), but actually quasi-colonial, system of rule, which would be extended southward into most of Sudan. It was in such places, as Jan Morris (Pax Britannica, 1998) reminds us, that British imperialist sentiment at home was reinforced by the “vision of General Gordon, that Galahad or Gabriel of the later Victorians, standing guileless, unarmed, fresh-faced, almost radiant, at the head of the stairs in his palace at Khartoum, while the ferocious Mahdists in the hall below, brandishing their assegais, prepared to murder him”.

The Ruling of the Modern World (1815-1905)

Shortly thereafter, the last and most comprehensive colonialist assault in modern history was launched against virtually all parts of Africa. In the North, the Italians, who had been excluded from Tunisia by the French protectorate there, took over the western provinces of Libya and Tripoli from the Turks. Algeria was now thoroughly French, indeed declared to be a part of metropolitan France, and virtual control over Morocco was shared between the French and the Spanish (Johnson, 1976). Soon the entire coastal lands of sub-Saharan Africa, East and West, were divided among Great Britain, France, Spain, Portugal, Germany and Belgium. The Sahara itself was “occupied” by the French, as well as the Senegal basin and much of northern Congo. In the rest of the Congo, the Belgians discovered the continent’s richest vein of copper and other minerals. On the east coast, the British would become ascendant, and yet cut oﬀ from the sea by German-held Tanganyika and Portuguese East Africa. Only Liberia and Ethiopia remained free of European occupation, although the latter was isolated by British, Italian and French colonies or protectorates in neighboring Somalia and Eritrea. In the last three decades of the century, revolts occurred – in Algeria, Angola, South Africa, and Southwest Africa – and all were ruthlessly suppressed (Roberts, 1995). How can this moral catastrophe be explained? First, the Great Scramble for Africa in the 1870’s virtually coincided with the Great Depression in Europe. Existing domestic and foreign markets had failed to match the growth of productive capacity in an increasingly mechanized and globalized European economy. To those moved only by the logic of supply and demand, the solution for economic powers was to add to their portfolio of colonial holdings. We might wish to follow the argument that Africa became the victim of growing competition to British trade. During the ascendancy of the Royal Navy, it had been possible to use sea-power to perpetuate the conditions of free trade by discouraging formal annexations of overseas territory that would convey new quasi-monopolistic trading blocs to other powers. The continuance of Britain’s imperial supremacy required the maintenance of its “informal empire”. To other powers, “formal possession meant the elimination of British competition and the acquisition of a permanent title to a share in a limited market” (Sanderson, 1985). Most of the new exploiters of Africa were motivated by expectations of massive enrichment. Urgency was added by the rather sudden realization that the world, once so awesome in its inﬁnitude, was shrinking. Even the rigors of tropical Africa could be endured in a race that one could not aﬀord to lose. Nothing could be worse than being left behind. By and large, the capture of Africa was eﬀected in the face of relatively sporadic resistance. Yet acquiescence was by no means the standard response to European imperialism in Africa. The 19th century set Western powers occasionally on a course of collision with warrior cultures. No African people of that era took greater pride in its capacity to resist than the Zulus of southeastern Africa. It was in encounters between British soldiers and warriors such as these that the bloodiest battles occurred. Southeastern Africa in the late 18th century was a patchwork consisting mostly of Bantu-speaking clans that were dependent on the tenure of land to sustain their mixed-farming economy (Oliver and Fage, 1988). Their lifestyle became increasingly

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disrupted in the early 19th century by migrations of bands from the south, by frequent clashes between the Ndwandwa and Mthethwa kingdoms, and eventually by the more distant threats of the land-hungry Boers, who were about to embark on the Great Trek in the 1830’s (Thompson, 2001). The Zulus were only one of many small chiefdoms in the region, but the victory of Dingiswayo, king of the Mthethwa, over his rivals owed much to Shaka, a cruel but remarkable young Zulu in his service. Dingiswayo’s rule seems to have been unusually liberal, but his example of civic enlightenment has been described as “utterly alien to his own culture” (Morris, Donald R., 1998). The rise of the Zulu empire is inconceivable but for the military genius of Shaka, whose ejection by his family as an illegitimate burned within him and his mother, propelling him into a career of conquest fueled with an Alexandrian intensity. Shaka’s empire-building succeeded through his invention of new weapons and his brilliance in military organization. The traditional light assegai, a throwing spear, he despised as an inadequate toy. It was replaced by Shaka with a much heavier, broadbladed instrument with a stout haft that could be lethally deployed at close quarters in the underhanded manner of the short sword which ripped through the soft bellies of the adversaries of ancient Rome. The traditional Zulu shield Shaka converted into an oﬀensive weapon designed to deliver a powerful backhand blow to an opponent caught oﬀ balance by the threat of the dreaded assegai. Wielded expertly by disciplined warriors led by a remorseless commander, these weapons proved supreme in battle after battle. In a few years, Shaka’s army, organized into regiments (impis), became irresistible, perhaps the most eﬀective indigenous ﬁghting force ever assembled on the African continent. In due course, Shaka fell victim to treachery within the family, as did his murderous half-brother. Their successors found themselves unable to master the new intruders: the Boers trekking in search of new farmlands, and the soldiers of the Queen from whom they sought to distance themselves. In 1843, when the British acquired Natal, the Zulus were forced to cede traditional lands, and tensions with the British intensiﬁed after the annexation of the Transvaal in 1877. Under duress, the chief Cetshwayo seemed ready to accept third party settlement of a border dispute, but the British military commander in the ﬁeld decided that only a policy of armed force could succeed in pacifying the hinterland. In January 1879 the British invaded Zululand. The ﬁrst encounter with the Zulus resulted in the comprehensive defeat of 1,300 British soldiers, in the disembowelment and unimaginable agonies of the helpless captives (Edgerton, 1988). But after a number of less horriﬁc skirmishes and the famous defense of Rorke’s Drift, a reinforced British contingent prevailed at Ulundi. Zulu military resistance was ﬁnally broken (Morris, Donald R., 1998). By the time Chief Dinuzulu was returned from exile on St. Helena in 1898, Zululand had been incorporated into Natal as part of the British colonial structure. By the 1870’s most of the European settlers in Africa had become hardened to the belief that they had become the “strategic core” of a continent that they saw almost exclusively in economic terms. Despite the continuing commitment to a “civilizing mission” on the part of the still-liberal, evangelic, minority of whites, the European

The Ruling of the Modern World (1815-1905)

settler communities of Africa by the end of the century had become the “most dangerous opponents of the colonial states which protected them” (Lonsdale, 1985). Turning to Responsible Government in the British Dominions. India, as we have seen, was captured through trading settlements in various parts of the sub-continent. The Indian people became more and more dependent on Great Britain in the early decades of the 19th century, but as a nation “British India” was never a colony in the strict sense. Indeed it carried the title of “Empire” and Victoria that of “Empress”. It had its own capital in Calcutta until its displacement by New Delhi at George V’s coronation durbar in 1911. It also had its own government and its own army, albeit under British leadership. In the second half of the 19th century India was seen by most observers to be evolving toward the status of an independent, self-governing state, although in 1905 it had not yet achieved that goal despite the growth of an indigenous nationalist movement. Other than Thailand, the countries of Southeast Asia were either colonies in the strictly subordinate sense or had quasi-colonial status as dependencies. Either way, the local elite had relatively little, if any, involvement in the actual governance of their country, and the public at large had no inﬂuence at all. In 19th century Africa, only Liberia and Ethiopia remained outside the framework of colonies seized and administered by the European powers. Typically, the peoples of colonial Africa were permitted no role in civic aﬀairs. But there was also a third division of the British Empire: nations that began as population settlements, stocked initially by British subjects of the Crown. In the period between 1815 and 1905 these “settled” polities were transformed into self-governing Dominions that would eventually mature into fully independent sovereign status, equal in all respects to established states under international law. Their history in the 19th century is that of a notably successful constitutional experiment in the development of responsible government (Barker, 1942). Canada was the ﬁrst laboratory for the peaceful conversion of a colony into a sovereign state. It was not, however, an entirely frictionless process. In 1837 rebellions broke out in Lower Canada (Quebec), under the ﬁery leadership of Louis Joseph Papineau (1786-1871), and in Upper Canada (Ontario), led by the radical William Lyon Mackenzie (1795-1861). In both cases, the grievances were partly constitutional in nature. Though easily suppressed, they drew attention in London to the need for a constructive response. Fortunately, the person chosen to investigate the matter was a man of vision. Within the contours of constitutional theory, the Earl of Durham (John George Lambton) (1792-1840) is a ﬁgure of major signiﬁcance. To his contemporaries in England he was a man of contrasting qualities: irascible, moody, exhibiting “love of display and impatience with fools or sluggards”, politically brave to the point of rashness, but occasionally disclosing “an unexpected and secret humility” (Morrison, 1930). As an associate of the radical wing of the Whig Party, Lambton was of course anathema to the conservative mainstream. “Radical Jack” was not an obvious choice for a delicate mission, but, in the outcome of colonial history, he proved himself wiser than most of his anti-liberal critics.

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Previously the idea of responsible government had not been well received by the controlling elite in London. As late as 1837 Lord Glenelg declared the notion incompatible with colonial status, and this doctrine of incompatibility found its way into a series of resolutions adopted by the House of Commons on the call of Lord John Russell. Nonetheless, Durham was given unusual latitude to develop proposals for “an improved system of government”. Durham landed in Quebec in May 1838. The ﬂamboyant radical is said to have announced his arrival “by prancing through the streets on a white charger and installing himself at the Chateau St. Louis, dining oﬀ gold and silver platters and quaﬃng vintage champagne” (Ferguson, 2002). Yet, behind his pose as a bon viveur, the visitor quickly sensed the virulence of the Quebeckers’ sense of injustice. Victims, as they saw themselves, of an ethos of British racial superiority, they would not be won over easily by a British aristocrat with a reputation for bucking tradition. Durham realized that ethnic animosities could be assuaged only by creating a genuine partnership of equals between the two “founding nations”. Responsible government was seen to be an indispensable element in such a partnership. Merger between the two alien cultures required formal civic union between Upper and Lower Canada. The single colony that he proposed was to be invested with an unprecedented degree of local autonomy under the authority of the Crown, which would be represented by a Governor-General. As a matter of logic, critics such as Russell and Glenelg were justiﬁed in fearing that a grant of autonomy would lead to an unravelling of the colonial system of administrative control. Moreover, supporters of the principle of responsible government were themselves divided – inevitably – over the meaning of “autonomy”. Joseph Howe of Nova Scotia, for example, pressed for autonomy in ﬁscal matters, mindful of the infamous casus belli south of the border in the 1770’s. Acknowledging the possibility of a conﬂict arising between Canadian and British economic interests, he conceded that the Imperial Parliament would have the right to intervene, and he accepted that Canadian autonomy could not convey the right to make decisions in defense and foreign aﬀairs, which would remain the province of imperial prerogative. Durham seems to have assumed that tariﬀs would continue to be subject to imperial control in accordance with his own conception of Canada as a self-governing but subordinate nation. Despite reservations all round, the famous Durham experiment (though lacking a common tariﬀ system) was approved in London, and the proposed union was eﬀected in 1840 (Corbett and Smith, 1928). Numerous issues roughened the path to Canadian nationhood. At one point, the English-speaking merchants of Montreal were suﬃciently disillusioned with the Durham system of government that they petitioned for the annexation of Canada to the United States, thereby contributing to the disqualiﬁcation of that city’s claim to candidacy as the capital of the uniﬁed colony. For a number of years, Quebec City (Quebec) and Kingston (Ontario) alternated as the seat of local autonomy. The frequency of ﬁshing disputes in the Northwest Atlantic soured relations between Nova Scotia and New England. Apparently they also soured Benjamin Disraeli’s disposition to colonies in general, which were castigated as a “millstone round our necks”. Lloyd (1984) ﬁnds this an odd comment from “one of the great ﬁgures of late Victorian im-

The Ruling of the Modern World (1815-1905)

perial enthusiasm”. Disraeli’s regret that no uniﬁed tariﬀ system had been agreed to “only showed that he had forgotten that responsible government was established just after Britain had decided free trade was the system that suited her interests best”. Holding Canada together continued to be tricky. Many of the issues were petty. Wrangling over the site for the national capital ended mercifully with Queen Victoria’s personal choice of a small town on the Ottawa River, on the cusp between Canada East and Canada West. Some of the pettiness dissolved in the potent concept of a larger union, with the colonies of Nova Scotia, New Brunswick and Prince Edward Island added to Canada within a British North American federation. At Charlottetown (PEI) the negotiators agreed on a two-level system, within which a common central government would share authority with the constituent provinces in accordance with an agreed-upon division of powers by designated ﬁelds of legislative responsibility. The government in London welcomed the proposed federal plan, which was seen as removing the threat of losing the smaller provinces to their feisty neighbor to the south. On July 1st, 1867, the Dominion of Canada was born. In retrospect, Lord Durham’s famous report of 1839 was, arguably, the most enlightened political document of the 19th century. It has been described as “the book that saved the Empire” (Ferguson, 2002). In recommending, essentially, that the British system of cabinet responsibility should be extended to the colonies, the goal of colonial self-government provided a principled “exit strategy” for colonial powers. It was a conciliatory strategy that might have satisﬁed the more pragmatic of the leaders of the American Revolution. The idea that colonies might acquire Dominion status and evolve thereafter into sovereign states gave a degree of respectability to British colonial policy in the late 19th century. Validated by the Canadian experience, the principle of responsible government became the normative foundation of the British government’s relations with ﬁve other colonies: Australia, New Zealand, the Union of South Africa, Eire, and Newfoundland. The legal elements of Dominion status were not formalized internationally until the imperial conference of 1926 and the Statute of Westminster in 1931, but the informal experiment in responsible government continued through the ﬁnal years of the 19th century. To some in the Age of Darwin, it might have seemed that adaptation was a natural course for the ﬁttest polities to follow in the struggle for survival in the competitive world of international politics. In Australia the demand for self-government had begun to surface as early as the 1840’s. Increasingly, the system of remote control in London seemed unsuited to effective treatment of questions of a purely local nature. Lord Durham in Canada had provided a benchmark for measuring how quickly the political culture of Australia was maturing. As grievances accumulated – convict policy, immigration policy, crown land sales, rail transportation, and other concerns – self-government came easily to the orator’s mind as a cure for all sorts of ills. But in the 1840’s it was much too early to envisage an independent and united Australian nation. Convicts still made up much of society in New South Wales and Van Dieman’s Land (Tasmania). Settlements in Western Australia had just begun to appear in 1829, and South Australia had not acquired provincial status until 1834. The early settlement communities of

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Australia would have to mature for another half-century before the Commonwealth of Australia could come together as an independent federal state in 1900. The development of the British idea of colonial self-government owed much to two Greys, who shared the same name but came from diﬀerent families. The 3rd Earl Grey (Henry George Grey) (1802-1894) was the eldest son of the 2nd Earl Grey, who had built a political reputation as a vigorous liberal critic of the government of William Pitt, a friend of Charles James Fox and Edmund Burke. Appointed Secretary for War and the Colonies in 1846, Henry Grey became the principal architect of Britain’s more enlightened policy of colonial development, based on the principle that colonies should be governed for their own beneﬁt as well as that of the mother country. As the patron of Lord Elgin, who became a distinguished Governor-General in Canada, Grey made a vital contribution to the victory of responsible government in the Dominions. His work included the drafting of constitutions for the Australian colonies and New Zealand, and supervision of settlement policy in the Cape Colony of South Africa. In the ﬁeld, however, it was the other Grey who had the harder task of implementing a policy that favored the goals of responsible government and eventual federation but could not grant autonomy and Dominion status until the civic ethos in those territories had matured. To the British rulers of the day, the absence of a ruling class in those colonies created a dangerous vacuum. It was left to administrators such as Sir George Grey (1812-1898) to confront a host of uneducated demagogues, mercenary farmers and selﬁsh merchants. His impressive career covered South Australia (where he became Governor in 1840), New Zealand (where he was transferred as Governor in 1845), and Cape Colony in South Africa (where he assumed similar responsibilities in 1854). In all three colonial situations he consistently displayed a sympathetic concern for the victims of colonization: the convicts, aborigines, Maoris, Africans, and Boers. Almost invariably, he was castigated by the settler communities for policies and actions that were judged to be much too liberal. The demands for self-government came, almost entirely, from persons unﬁtted for oﬃce. There were no Jeﬀersons or Madisons or Hamiltons to lead these nations forward. South Africa was a special case. It followed a course of colonial development that had more in common with India’s than with that of Canada, Australia or New Zealand. There was never any possibility that South Africa would acquire a uniﬁed national identity on the basis of a population settlement of European immigrants. The indigenous African peoples encountered by the early Afrikaner settlers were much more numerous than their counterparts in Australia and New Zealand. The newcomers had started out in small enclaves, mostly on the coastline or in fertile river valleys. The Afrikaners’ appetite for farmland drove them inland, to areas where it was diﬃcult to establish a majority presence above the local community level and impossible to create a truly national system of government. By the mid-19th century, most of the immigrants and their descendants were still “poor, scattered, disunited, inexperienced, and virtually surrounded by Africans” (Thompson, 2001). Despite the steady inﬂow of Europeans, there was never any prospect that Britain or any other outside power might develop a single substantial colony out of a pattern of population settlements. The unhappy history of South Africa in the 19th century

The Ruling of the Modern World (1815-1905)

would be one of conﬂicting races, not merely of diﬀerent political cultures derived from similar but competitive imperial traditions. Reﬂections. From the perspective of the 21st century, the 19th century colonial system of international relations seems remarkably amoral. The 1815-1905 period is a relatively recent stage in the development of world order, and yet we are shocked by the depth of the moral divide between then and now. We tend to forget that today we are looking back at it from a period when many theorists in the “tower” – and a much greater number of observers in non-state institutions – have intensely ethical expectations of the international legal system of the present day. Needless to say, specialists in imperial history have oﬀered divergent theories to explain the phenomenon that produces so much wonder and distaste today. To reduce the complexity of it all, some insist on distinguishing “imperialism” from “colonialism”, since the former has always existed in non-colonial as well as colonial form, by any deﬁnition. Others, leaning to the line of economic determinism, sometimes see an advantage in distinguishing both not only from each other but also from the “expansion of capitalism” (Etherington, 1984). The consequences of imperialism were so variable that a case can be made for distinguishing “repressive” patterns from “progressive”. Generally, explanations for 19th century imperialism – especially the late imperialism of the last three decades – can be classiﬁed as either “metropolitan” (focussing on the mother country) or “peripheral” (rooted in the milieu beyond) (Owen and Sutcliﬀe, 1972). Metropolitan theorists cannot ignore the role of forceful personalities at the center, especially if they wish to explain the long-term maintenance of “uneconomic” colonies and dependencies (Northedge and Grieve, 1971). In the case of Great Britain, none of the champions of the imperial tradition in the late 19th century had a more forceful, uncompromising personality than Robert Arthur Talbot Gascoyne – Cecil, the 3rd Marquis of Salisbury (1830-1903). His thrice-held tenure as Prime Minister capped an earlier career in colonial and imperial politics: twice in the India Oﬃce and twice at the Foreign Oﬃce. Throughout almost half-a-century, his policy of British expansionism remained as ﬁxed as the polar star. The Whig, Fabian and Socialist critics were always in his sights. We imagine Salisbury in the colors presented by Barbara Tuchman (1966): “intensely intellectual ... caustic, tactless, absent-minded, bored by society and fond of solitude, with a penetrating, skeptical, questioning mind ... the Hamlet of English politics”. This powerful patrician statesman had small regard for people, including those of his own exalted class. He had no time for horse and hounds. He oﬀered no threat to the wildlife around him. Tennis, it seems, was the only sport worthy of his attention. Salisbury was short of sight and hard of hearing. Both deﬁciencies reinforced his capacity to remain impervious to others. At the close of the Boer War, it is related, he picked up a signed photograph of his monarch, King Edward, whom he mistook for General Buller, the discredited director of hostilities in South Africa: “Ah, Buller. What a mess he made of it”. On another occasion, “he was seen in prolonged military conversation with a minor peer under the impression that he was talking to Field Marshal Lord Roberts”.

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He made no secret of his contempt for the masses, “not excluding the House of Commons”. He governed the country from the House of Lords – the last British Prime Minister to do so. It was there that he expected to encounter “natural” leaders like himself, but very rarely did. It was in that chamber that his insensitivity could give oﬀence. “When a recently ennobled Whig took the ﬂoor to lecture the House of Lords in high-ﬂown and solemn Whig sentiments, Salisbury asked a neighbor who the speaker was, and, on hearing the whispered identiﬁcation, replied, perfectly audibly ‘I thought he was dead!”. Some readers may ﬁnd the climactic era of Western colonialism so repugnant as to bring into question the legitimacy of a legal system that seems to have served so nicely the exploitative interests of the colonial powers. Distressingly few of that era were prepared to challenge the “right to conquest”. Too many in the West were untroubled by the assumption, often made explicit, that the colonial powers brought the beneﬁts of a superior order of “civilization”. The history of Western colonization seems to be in constant violation of many basic principles of contemporary international law (Ermacora, 1987). Yet the 19th century was in a direct line from the past. There had always been colonies of one kind or another. On past evidence, colonies were a natural, or even inevitable, feature of power-holding: the proof that power and wealth, like knowledge and faith, have always tended to expand in the absence of constraints. For relativists, the proper question is how to compare the 19th century patterns of colonial dependency with those of the past, and how to interpret the legacy they left to posterity. Apologists might point to the use of treaty-making diplomacy as well as force, especially in Southeast Asia. Although critics can show that most of the colonial treaties were unequal, reﬂecting the nature of the relationship between the parties, not all of them were unjust or the product of outright coercion. In the transactional mind-set, the interests on both sides were best served by creating a stable relationship between the parties, and the treaty was accepted by all as the mechanism best suited for that purpose. Admittedly, it was still believed by many that a treaty was not so diﬀerent from a contract, containing personal commitments intended to bind the ruler who signed or consented, but not the successor or the state itself. Sometimes, on the other hand, it was contended, expediently, that a treaty continued to be binding even when it had been negotiated and maintained in secrecy. To dispassionate analysts of 19th century colonialism, it is its heritage of ideas that is most troubling: the history of dependency has created a lust for independence that is often hard to satisfy. For the colonial powers themselves, the practice of representative government was still an experiment in the laboratory of constitutional democracy. The 19th century was an early stage in the history of nationalism. In Europe itself, the modern states of Germany and Italy did not jell until the third quarter of the century, and Poland and Hungary had to continue their quest for national identity in the form of independent states into the early 20th century. The nationalist movement of 19th century Europe gave rise to ideals that would prove diﬃcult to uphold in the following century. The principle of self-determination was to prove especially elusive. Derived from the concept of popular sovereignty, it could be seen to have originated in the American Declaration of Independence (1776)

The Ruling of the Modern World (1815-1905)

and in the policies espoused by the leaders of the French Revolution in the 1790’s (Thurer, 1985). By the mid-19th century, the concept of a nation-state had emerged: the notion that a sovereign independent state should be based on common national characteristics, such as a shared race, language, culture, and even religion. The concept that every “people” or “nation” has a right to self-government has been dangerously seductive. In simple situations, where there is a homogeneous population, the principle of self-government is irreproachable, but not in a pluralistic society where the will of the majority may be oppressive. Some, such as the constitutional expert Sir Ivor Jennings (1956), have placed the blame for overexpectation on Woodrow Wilson: “a Professor of Political Science, who was also President of the United States”. The great idealist is sniﬃly denigrated by the famous constitutionalist for enunciating “a doctrine which was ridiculous, but which was widely accepted as a sensible proposition. On the surface it seemed reasonable: let the people decide. It was in fact ridiculous because the people cannot decide until somebody decides who are the people”. The German majority in 19th century Germany, or the Polish minority? The Austrian majority in the Austro-Hungarian Empire or the Hungarian minority? The Russian majority in the Russian Empire, or any of its numerous minorities? (Rigo Sureda, 1973). If the right of self-determination is dangerously open-ended, inviting disorder in a pluralistic society, even more so is the suggested right of secession. Despite its emotive appeal as a political goal for those who feel trapped within an unwanted macrostate (Chen, 1976), most international lawyers have backed away from any suggestion that “peoples” or “nations” in general have a right to secede. It is in this context that one sees most clearly the historic injustice of 19th century colonization, especially in its impact on modern Africa. Many of the tensions among neighboring nations on that continent, or among neighboring peoples within the same macro-state (such as Nigeria), can be blamed on the arbitrary division of Africa into colonies designed to serve the interests of the imperial powers. But the borders cannot be re-drawn. Many are trapped within structures imposed upon them; and international lawyers cannot call in principles that seem bound to spin out of control. In short, 19th century colonialism has created a welter of conﬂicting rights and unrealizable ideals (Hannum, 1990). Yet 19th century colonialism did also confer beneﬁts on the peoples of the colonized territories, and in the case of the Dominions of the British Empire the years between 1815 and 1905 were a period of remarkable civic maturation based on the principles of responsible and representative government. Canada and Australia were to provide important variations in sophisticated power-sharing within federal frameworks. The Commonwealth of Nations that emerged out of the British Empire would make a signiﬁcant contribution to the techniques of cooperative diplomacy in the second half of the 20th century (Papadopoulos, 1982), and, in a modest way, even to the promotion and development of the international legal system (Fawcett, 1963).

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Sovereignty, Extraterritoriality and Annexation The development of federal arrangements in the United States and elsewhere in the 19th century had demonstrated the need to challenge the traditional assumption that strong and eﬀective government depended on attachment to the internal theory of sovereignty. On the face of things, external sovereignty, on the other hand, seemed to thrive in the ethos of self-willed states seeking or protecting an imperial presence in world aﬀairs. In fact, however, the theory of state autonomy was too simple to account for the variability of the real world. Questions. How ﬂexible was the 19th century concept of “independence”? What were the elements of sovereign statehood in classical international law? How did the Western powers apply their own theory in their relationships with a non-colonial, non-Western nation such as China? How much choice was given to smaller, and even more vulnerable, countries like Hawaii that attracted the imperial powers of the 19th century? Sovereignty and the Right to Statehood. As the 19th century unfolded, theorists continued to divide on the meaning of “sovereignty”. The concept became so useful for purposes of political rhetoric that it threatened to turn into a term of artiﬁce rather than a term of art. There were still many in the mid-19th century who remained determined to defend the absolutist Bodinesque notion of sovereign authority, whether applied to a personal monarch or to a state or nation identiﬁed as the collective expression of the sovereignty said to reside in the “people” (Crawford, 1988). Within the national frame of reference, sophisticated experiments in constitutional monarchy, republicanism and federalism proved the feasibility of power-sharing and the non-essential nature of the concept of internal sovereignty. At the international level, Western contacts with less sophisticated civic cultures outside Europe fortiﬁed the self-serving conception of Western or Christian superiority. A national gap opened up between “more advanced” and “less advanced” nations or peoples. The “international system” perceived to be evolving through the 19th century was conceived as a system exclusive to the most advanced. Membership in that community of states required the proof of eligibility. By the late 19th century, it was generally agreed by the international lawyers of Europe that to qualify as a sovereign state, an applicant for statehood, in the international sense, had to pass three tests: (i) there had to be a recognizably discrete population that shared a mutual relationship of national loyalty and protection; (ii) there had to be a more or less deﬁnable territory within which the population was settled; and (iii) within that area the population must have accepted the existence of a central government that was capable of exercising power independently of foreign governments (Doehring, 1987). Although all three of these criteria of international statehood were to be subjected to unending critical analysis within the international law community, they would remain in place beyond 1905 and eventually achieve reafﬁrmation through incorporation into the 1933 Montevideo Convention on the Rights and Duties of States.

The Ruling of the Modern World (1815-1905)

In reality, of course, the structure of the evolving world community was inﬁnitely more complicated than that suggested by the simple ﬁctions of international legal theory. The world-in-fact was composed not simply of states and non-states, but, more realistically, of numerous entities with widely varying degrees of political, economic and military “independence”. How could the international legal system, ﬁxated on the concept of legal independence, achieve credibility if it departed so blatantly from commonly perceived reality? In partial response, realists within the legal community argued that the phenomenon of a limited international system of “fully sovereign” states should be explained more candidly by reference to the method of recognition. By this subjective theory, states came into existence not by the mere possession of certain objective characteristics but by satisfying the existing powers, and established lesser states, that they had a suﬃcient degree of independence or sovereignty to be admissible into the club. Oppenheim (1905) was one of many jurists who declared that a “State is and becomes an International Person through recognition only and exclusively”. States in the legal sense came into existence by passing a candidacy test. Those belonging to the “recognition” school were almost invariably positivists, who insisted on the need to place modern international law, ﬁrmly and permanently, on the demonstrably consensual practices of sovereign states. They shared a philosophical repugnance for woolly conceptions of customary international law that depended on some kind of commitment to the intellectual tradition of natural law. Only naturalists could convince themselves that less-than-fully-sovereign states had a right to legal existence. On the other side of the argument, it was asserted that new states could come into existence by reason of facts alone. For example, naturalists argued that when Belgium broke away in 1831 from the Kingdom of the Netherlands, with which it had been adjoined by the Great Powers under the 1815 Treaty of Vienna, it became a member of the family of nations ipso facto by its “rising into existence”: international recognition supplied only the necessary evidence of Belgium’s legal existence as a sovereign state, but was not itself the necessary condition. Those with an aversion to legal theory may protest that such a distinction matters little. Yet the political signiﬁcance of the distinction between the two schools can hardly be disputed, as we look back on the scholarly debate from a long, perspective-aﬀording distance (Crawford, 1979). Moreover, the recognition theory of the creation of states leads logically to the possibility that the recognizers have other privileges, such as that of imposing conditions that involve the exercise of political judgment over and above the mere acceptance of a factual situation. As recognition theory developed, the cognitive sweep of the “international community” caught up the collective sense that a new or prospective state must be willing to discharge its international obligations, as an entity whose word could be relied upon (Lauterpacht, 1947). Clearly, the recognition function attributed to the international community required the exercise of political judgement by the recognizing sovereign states , and thus the interplay of economic interests and cultural perceptions. It might seem, then, that the great powers of the 19th century decided who qualiﬁed as sovereign states and which territories were legitimate objects for capture and colonization. In reality, the geopolitics of that era was not so simple. Sometimes the

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powers chose, or had to settle for, a form of imperial prerogative short of colonial control. China: The Eagles and the Dragon In the Far East, Western pressures abated for a short period after the Napoleonic Wars. China remained virtually untouched – and certainly unimpressed – by the concepts and conventions of the European system of nation-states. Western traders, obsessed by the prospect of wealth, still squirmed in the serpentine embrace of the Chinese bureaucracy. The largest foreign presence was the British. Canton (Kwangchow or Kuang-chou, now Guangzhou) had replaced Amoy (Hsia-men, now Xiamen) as the Chinese port for foreign trade. As early as 1787, ﬁfty-two of the seventy-three foreign vessels anchored oﬀ Canton carried the British ﬂag (Ch’en, 1979). Yet even the British had failed to engage the Chinese Emperor’s interest in developing a policy for the promotion and regulation of foreign trade; and they themselves had no such policy of their own. Since 1757 it had been left to a gild of Chinese chartered merchants (the Cohong) to keep the foreign trade community at Canton under control .Through the Hong system, this gild was authorized to supervise the exportation of Chinese commodities such as tea, silk, spices, rhubarb, and handicrafts. It operated as a semi-monopoly that proved beneﬁcial, in favorable times, to members of the gild. But these wealthy merchants tended to ﬂirt with ﬁnancial disaster, though answerable to an imperial appointee: the regional Superintendent of Maritime Customs, who was usually a hard-driving Manchu oﬃcial from the Imperial Household Department of the Inner Court in Beijing. The Hoppo had overall responsibility for the taxing of imports and exports passing through Canton, and the Cohong merchants were merely his collectors (Fairbank and Goldman, 2002). In the early decades of the 19th century, China’s conception of the West was very largely derived from the realm of Chinese imagination. Europeans were widely envisaged as ogres, as the Dutch and other traders in Canton had been caricatured: as barbarians with sunken eyes, long nose, red beard, bushy eyebrows, and unusually big feet. They were known to be fond of the ﬂesh of Chinese children. The reputation of the Russians in the North fared no better, “with eyes like green lanterns and heads as large as bushels” (Ch’en, 1979). Contact with these creatures should be avoided, or kept to the barest minimum. Some of the myths were dispelled by actual encounter. The foreigners’ reputation for clumsy ineptitude was put to rout on the battleﬁeld. In 1839-42 the Chinese army suﬀered a series of embarrassing defeats by well-organized British soldiers no more than 10,000 in number. Imperial oﬃcials confessed to surprise at the power of the enemy’s weapons and the dexterity of their ships in shallow waters. At the negotiation table the barbarians were found to be equally adept in the pursuit of national advantage. The few Chinese who had warned their compatriots not to underestimate these Westerners were vindicated., perhaps more than they wished to be. Matters had come to a head quickly after the abolition of the British East India Company’s monopoly of the China trade in 1831. The crisis was precipitated by issues related to the traﬃc in opium. In 1835 the volume of illegally imported opium shot

The Ruling of the Modern World (1815-1905)

up to over (US) 17 million. To the distress of the government in Beijing, the Cohong in Canton seemed unable to curtail this dangerous trade, as the domestic demand for the commodity continued to expand to an unprecedented level of casual as well as habitual use. Some pragmatic memorialists urged the Chinese government to legalize the drug and to pay for it with normal trade and imported silver. Until China found a way to develop its own domestic sources, they argued, European importers could be forced to pay substantial duties on the shipments they brought in, mostly from India. Others, advocating a moral “war on drugs”, called for prohibition and strict punishments designed to dry up the source of supply and discourage the use of opium throughout the country (Cheng, Lestz and Spence, 1999). The decision was taken in Beijing to impose much stricter controls, and a formidable, incorrupt oﬃcial was appointed to that task. On his arrival in Canton in 1839, Commissioner Lin Tse-hsu (Lin Zexu) quickly decided to apply the traditional method of Chinese statecraft, combining coercion with persuasion. On the one hand, he instituted a blockade of British vessels and ordered the destruction of the existing stocks of opium in the warehouses of the port. On the other hand, he sent a polite letter to Queen Victoria, appealing to her Christian conscience and her ministers’ sense of equity (Teng and Fairbank, 1963). The strategy failed on both grounds. The blockade was overwhelmed with superior British naval force, and the British denied that opium was the only issue. To the government in London, the issues at stake were more than merely ethical. Diplomatic equality was at stake and the freedom of trade, and the question of legal safeguards for foreign residents had to be addressed. Lord Palmerston, the British Foreign Secretary, was usually ready to adopt robust measures in pursuit of imperial advantage. At ﬁrst he had been reluctant to resort to force against China, but energetic lobbying by a group of Manchester textile manufacturers carried the day. At that time, Parliament rarely had a voice in the direction of foreign policy. In initiating the Opium War in the spring of 1840, Palmerston acted without the knowledge or approval of Parliament, or of the nation. The Chinese government was informed of the reasons for the counter-blockade before the ships arrived. “The Queen of England desires that her subjects who may go into foreign countries should obey the laws of those countries; and Her Majesty does not wish to protect them from the just consequences of any oﬀences which they may commit in foreign ports. But, on the other hand, Her Majesty cannot permit that her subjects residing abroad should be treated with violence and be exposed to insult and injustice; and when wrong is done to them, Her Majesty will see that they obtain redress. Now, if a government makes a law which applies both to its own subjects and to foreigners, such government ought to enforce that law impartially or not at all. If it enforces that law upon foreigners, it is bound to enforce it also upon its own subjects; and it has no right to permit its own subjects to violate the law with impunity, and then to punish foreigners for doing the very same thing” (Cheng, Lestz and Spence, 1999). This proposition, declaring the legal equivalence of aliens’ and citizens’ rights, was supported by references to “justice” and “equity”, but not explicitly by references to public international law.

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Lin’s failed experiment in barbarian management had been inspired by a recent and successful campaign to put down a barbarian insurrection on the Turkestan frontier, in the distant region of Sinkiang (Xinjiang) where the great Pamirs had long been traversed by the famous Silk Road. The rebel Jahangir had been captured and quartered, and peace restored to the perimeter. The Opium War with the British resulted less happily with the Treaty of Nanjing (1842). Nanjing was the ﬁrst of a succession of “unequal treaties” forced on China by Western powers over the next hundred years. It was imposed on the deck of a British frigate, at the mouth of the cannon, under the threat of an assault on the city of Nanking (Gilbert, 1929). It was an amateurish document bereft of professional diplomatic input. In the following year (1843), some of the deﬁciencies were supplied by the Treaty of the Bogue. Then , in 1844, similar agreements were reached with the United States (Treaty of Wanghua) and France (Treaty of Whampoa). Although separate instruments, the four agreements together constituted the original system of unequal treaties imposed on China in the mid-19th century. The agreements with the United States and France were more comprehensive and more polished texts. All four would remain in place until the Tientsin treaties of 1858, which were also the product of gunboat diplomacy led by Great Britain and France, but they opened up further concessions for Russia and the United States as well as France and Great Britain. In 1858 China was also coerced into signing a border agreement (the Treaty of Aiguin) with the Russians, who had been steadily inﬁltrating into northern Chinese territories in violation of the Treaty of Nerchinsk (1689). In response to the Tsar’s expansionist demands, accommodation was made for these intrusive Russian settlements, and the Sino-Russian border was adjusted southwards. Additional pressures came from Japan, decades later, with the Treaty of Shimonoseki (1895), which had the eﬀect of promoting Japan – a former member of the Confucian family of nations – to the status of a Western power in a world-system now dominated by Western treaty-making practices and by Western concepts of international law and diplomacy. Japan’s turn to Westernization won Formosa (Taiwan), the Pescadores, and the Liaotung Peninsula from the stricken dynasty. The unequal treaty system, ﬁrst imposed on China at Nanjing in 1842, consisted of several features that served to undermine China’s integrity as a sovereign state. First, the most conspicuous eﬀect of these agreements was to introduce a regime of extraterritoriality. Under that system, the citizens of the treaty partners on Chinese soil were declared to be subject only to the laws of their own country. This privilege was ﬁrst admitted to the treaty system under the agreement with the United States, but restricted to criminal cases. Several months later it was extended to civil matters under the treaty with the French. Extraterritoriality was by no means a novel institution. Before the jelling of the modern nation-state, jurisdiction was conceived in personal rather than territorial terms (Meng, 1987). Like the Turks at Constantinople, the Chinese had long expected resident foreign traders, such as the Arabs since the 11th century, to govern themselves. Before the Opium War, the British had demanded extraterritorial rights in China on the “capitulation” model of Christian European experience with Muslim states in North Africa and under the Ottoman Empire. Indeed one of the cardinal

The Ruling of the Modern World (1815-1905)

principles of the Hanseatic League in North Europe was that its members were absolutely independent of all foreign jurisdictions, wherever they might reside and trade (Shih, 1925). It might even be true that as early as ancient Assyria aliens were exempt from local laws. What evolved over many hundreds of years was the practice of granting immunities to certain categories of foreign residents, not only to clergy who were exempt from secular justice in the medieval Christian West, but also, more generally, to merchants. Most famously of all, the Romans instituted a special judicial mechanism (the praetor peregrinus) in the 3rd century BC to deal with disputes involving foreign residents of Rome. Elsewhere aliens were permitted to have their own courts. Usually such arrangements were entrusted to the “consul” representing the individual’s state, and the system was known as consular jurisdiction (Munch, 1986). In the 16th century this system had become generalized in the form of treaty-based “capitulations” between the host (Muslim) state and the foreign (mostly Christian or Jewish) trading community. Sometimes a foreign merchant was even allowed to sue a native defendant in the foreigner’s consular court. Abuses did, however, arise. In some countries it was found that a fair outcome was more likely by commissioning mixed tribunals with judges from both the host country and the foreigner’s. Experiments along these lines became quite common in China, especially Shanghai, in the late 19th century. Scholars today ﬁnd it diﬃcult to judge how felicitously the two legal systems merged in these cases (Cassel, 2003). The merchants in Canton in the mid-19th century had special reason to be fearful of the Chinese legal system. They had had ﬁrst-hand knowledge of the severity of Chinese law, including the frequent use of torture to provide evidence in civil as well as criminal proceedings. Judicial punishment for serious crimes was especially harsh. In 1785 two (apparently drunken) sailors, one British and the other American, were convicted of causing the death of a Chinese citizen. Their punishment was death by strangulation, which seemed a degree worse than the Western death by hanging. More important for the merchants was obtaining guaranteed access to their own system of contract law (Fairbank and Goldman, 2002). A second feature of the new treaty system was the establishment of a ﬁxed and moderate tariﬀ: a guaranteed 5 ad valorem tariﬀ. This modest charge remained in place for almost a century, depriving a nominally sovereign state of the normal sovereign privilege of setting its own tariﬀs in accordance with its economic policies. This provision was accompanied by the guarantee of direct access to the Chinese customs collectors, so as to reduce the extra cost of bribes extorted by invisible intermediaries. Before long, the Chinese government in Beijing discovered the cash beneﬁt of such an arrangement. In due course, the Chinese began to employ foreigners to administer this revenue system on their behalf in Shanghai. A third feature of the system was the guarantee of most-favored-nation treatment to all countries trading in China, regardless of nationality. This kind of bilateral innovation, introduced into China by the Treaty of the Bogue, was not a new idea, dating back to the 15th century. But the breadth of its scope in China was exceptional, extending to virtually any privileges that might be granted to any treaty partner. Although not in itself inimical

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to China, this kind of guarantee might seem excessively intrusive in light of modern treaty practice, in which most -favored-nation clauses tend to be restricted to a limited number of speciﬁc matters such as import duties(Ustor,1985). Finally, the treaty system in 19th century China included an arrangement whereby foreign trade operations would be extended beyond Canton to four other ports: Shanghai, Amoy, Foochow, and Ningpo. These ﬁve treaty ports were designated as the oﬃcially approved places for maritime trade, in consistency with the traditional Chinese practice of designating cross-border trading posts along the land frontier. Throughout the treaty ports, the foreigners employed as commissioners of the Chinese Maritime Customs became extremely inﬂuential, maintaining an eﬃcient and honest system of administration that served the interests of the Chinese central government as well as the merchant community. In the eye of posterity, the uniform “ﬁve per cent solution” may seem artiﬁcial and ungenerous, but the assurance of steady revenues from the treaty ports played an important role in propping up the weakened regime in Beijing in the years between 1842 and 1870. Despite the appearance of equality among the Western powers in China, the British held a special, “ﬁrst among equals”, relationship with the Chinese authorities, even after the 1870’s when Western imperialist rivalries sharpened and resulted in successive invasions of Chinese soil. Some historians of the treaty port regime have characterized the period down to 1905 as an Anglo-Chinese “co-dominium”, comparable with other dual regimes in Chinese history such as those associated with the Mongols and the Manchus, when the Chinese Han mandarins and eunuchs were obliged to govern the country “under a degree of alien hegemony” (Fairbank and Goldman, 2002). After 1905 it would be the Japanese who would become the dominant foreign presence in China, creating a regime closer to the imperial paradigm of colonial occupation and, in certain places, an unusually brutal reign of terror. The resentments created by the external imperial presence in China ﬂared up in a violent anti-foreigner movement at the end of the century. The aggressiveness of German missionaries in Shantung (Shandong) in 1898 triggered anti-Christian, antiWestern riots that spread throughout North China. Combining belief in spirit possession (shamanism) and a mastery of the martial arts (kungu or gongfu), the nationalist insurgents later took the name” Boxers United in Righteousness” (or “Harmonious Fists”), marching under the banner “Protect the country, destroy the foreigner”. Reform (“self-strengthening”) was in the air, and even the Manchu princes felt the suasion of the people’s will to get rid of foreign imperialism. During the long hot summer of 1900 the spirit of rebellion was rampant. Thousands were slaughtered on all sides, including a huge number of Chinese Christians who were especially reviled by their culturist compatriots. It was actually a war of national liberation – fought in the North – the ﬁfth and largest uprising against the foreign powers in 19th century China. But the provincial governors-general in Central and South China agreed to declare the famous event to be “merely a regional rebellion”. They guaranteed peace if the foreigners agreed to keep their troops and gunboats out. In order to preserve the proﬁtable treaty system, the imperialist powers complied. In 1901 the Boxer Protocol was signed with eleven foreign countries, and capital punishments were carried out against the rebel leaders.

The Ruling of the Modern World (1815-1905)

Though probably amused by the Westerners’ concern with international legality when it suited their purpose, many Chinese intellectuals saw the merit of beating them at their own game. After 1858 their huge country – the carrier of the world’s most durable civilization – was seen to be in immediate danger of dismemberment. No less a personage than the powerful Prince K’ung, brother of the Emperor who died in 1861, took a more relaxed view of the imperial powers than his royal siblings and cousins: “the rebels were a disease in China’s vitals, the barbarians an aﬄiction only of the limbs” (Fairbank, Reischauer and Craig, 1965). The limbs could be saved by learning the strange ethic by which the barbarians, in their ﬁner moments, felt constrained. In Prince K’ung’s view, the foreigners’ war machine had been found to be invincible, but their weakness for the “soft power” alternative made them vulnerable to the power of argument. First, it was essential to establish an agency that would be devoted to the direction of China’s external relations. This agency (the Tsungli Yamen or Zongli Yamen) would have to be staﬀed with oﬃcials trained in the foreign arts of international law and diplomacy. Accordingly, Prince K’ung was persuaded to engage the American missionary-scholar W.A.P. Martin to translate into Chinese The Elements of International Law by Martin’s compatriot Henry Wheaton, which had been recommended as an authoritative treatise. The Chinese translation was published in 1864 (Hsu, 1960). The message conveyed by Wheaton was that all sovereign states shared certain standards and obligations to one another. The idea of sovereign equality was not easily digested in a culture so proud of it superiority, where civic equality was thought to be possible only in the case of belligerents that had proved their equality by the tests of warfare. It was diﬃcult to grasp the idea that sovereignty – akin to the Chinese concept of suzerainty -was compatible with the existence of binding obligations to others. Within two decades, however, the logic of the foreign principle of state sovereignty had been mastered. In a directive from the Tsungli Yamen sent to all China’s ministers overseas in 1878, the legal deﬁciencies of the system of unequal treaties were exposed. First, it was argued that the treaties of Tientsin contained no clause making them subject to revision after seven years in accordance with normal practice. Objection was raised to the foreigners’ interpretation of the system of extraterritoriality, which seemed to suggest that they could “disregard and violate Chinese regulations with impunity”, rather than creating merely the privilege of punishment by their own ofﬁcials in accordance with their own laws. No criticism was oﬀered against the use of merchant-consuls in the treaty ports of China for the administrative purpose of clearing their nationals’ ships and facilitating the movements of their sailors. It was argued, however, that if these individuals were to be assigned a judicial function, it was incumbent on the government of the sending state to appoint good, trustworthy men to positions of that kind, not a merchant who “may have been ﬁned for smuggling the day before or who, in his mercantile capacity, may perhaps be personally interested in the case at issue”. (Ch’eng. Lestz, and Spence, 1999).

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The Tsungli Yamen accepted the most-favored-nation formula as necessary and legitimate, but complained that it was often interpreted unfairly by foreigners as preventing China from granting a special concession to a certain country for a special consideration. If others came forward to claim the same privilege, “it would be only just to expect that in enjoying the privilege they would consent to observe the conditions accepted by the power to which it was originally granted”. Apparently, immersion in the Confucian classics did not preclude a talent for cogent legal reasoning! Or was the anonymous author of this directive a “returned student” from the West? Reﬂections. The institution of extraterritoriality associated with the Chinese unequal treaty system of the 19th century is a thing of the past (Shih, 1925). It was ﬁrst repudiated by the Japanese, who saw no need for such privileges on foreign soil. Although remnants remain within the contemporary system of international law, consular jurisdiction in that form may be viewed as obsolescent, if not obsolete (Munch, 1986). Yet issues of extraterritoriality in other forms have come back to divide the international law community. Problems arise from the extraterritorial application of laws regulating economic activities. Within such contexts, the United States is by far the most determined claimant to extraterritorial jurisdiction. In response, many countries have enacted legislation designed to prevent the application of foreign laws within their territory (Lowe, 1983). Despite heated objections (Olmstead, 1984), the United States continues to press its extraterritorial policy in situations of conﬂicting legal systems, and controversy continues to arise over the “reasonableness” of such a policy in certain cases (Higgins, 1984). Although the system of extraterritoriality in China was abandoned a long time ago, the eﬀects of the British presence there have lingered on. The most visible evidence of 19th century imperialism on Chinese soil is, of course, in Hong Kong. It was the Manchus – less obsessed with territoriality than the Han Chinese – who were willing to appease the British by ceding a portion of the land they governed. The loss of “a bare rock on a remote coast” was a triﬂing concession, if it seemed so important to foreigners to have “clear title”. Annexation of foreign territory, whether by force or coercive diplomacy, was also legally permissible. A merger of territories was imaginable, but only on the evidence of consent of peoples aﬀected. Later, proposals for the reunion of partitioned countries – in Korea, Cyprus and Ireland, for example – would have to pass the constitutional tests of popular election or referendum. The Case of Hawaii. Given the rate of sovereignty erosion in a state as huge and formidably cultured as China, the fate of much more vulnerable countries in the 19th century is less surprising. Today, in the early 21st century, we can identify dozens of more-or-less “independent” nations that barely qualify as sovereign states under the criteria of statehood discussed above. Within the UN system, members struggling with the challenge of economic viability are designated under the rubric of “least developed”. Other “marginal states” have declined even to apply for membership of the

The Ruling of the Modern World (1815-1905)

United Nations, limiting their external relations to neighboring states within their own region, or accepting their chronic dependence on a benevolent but distant patron. Many of the most vulnerable, least developed nations are small island states of the Paciﬁc, Indian and South Atlantic Oceans. During the colonial era they were confronted with more powerful, more advanced, exploitative societies. In most cases, the eventual outcome for these small island states was to be a fragile kind of national independence. In other cases, the ﬁnal result was cession or annexation. The 19th century history of Hawaii reﬂects the struggle between these two competing forces of world history. Ferdinand Magellan (1480-1521) and his mutinous, thirst-tortured crew were the ﬁrst Westerners to navigate in the Paciﬁc Ocean. Like so many others who followed in their wake over the next two and a half centuries, they had little conception of the elusive islands and peoples of the Southern hemisphere. In that long era of overseas expeditions, Spanish, Dutch, French and English explorers all failed to “discover” the Hawaiian Islands. The ﬁrst arrivals were the Polynesians, who settled there from the Marquesas and the Society Islands perhaps as early as the 8th century (Kuykendall, Vol. I, 1938). It is, of course, James Cook (1728-1779), the most famous of the circumnavigators, who is generally credited with the “re-discovery” of the archipelago, named the Sandwich Islands in honor of the earl who presided over the British Admiralty (Beaglehole, 1974). Sailing from the Society Islands in the Resolution and Discovery on his third great voyage, Cook and his men were not speciﬁcally charged with the task of ﬁnding new islands. However, in the last week of 1777 they made landfall on a tiny atoll that they named Christmas Island in the spirit of the festive season. Three weeks later they sailed into the western perimeter of the Hawaiian chain, sighting Oahu, Kauai and Niihau within a few hours. They were soon to acquire a new pictorial image of Paradise. Their ﬁrst contact with the Polynesians was in the waters of Kauai, with the villagers of Waimea on January 19th, 1778. The islanders were friendly, and the market at Waimea was the best that Cook had ever seen on his voyages. Gift-giving, following the usual pattern, was extended to Niihau nearby. Cook’s men were more than generously received (Daws, 1968). On his later return from the North Paciﬁc, Cook discovered Maui in November 1778, and in the following January sent ashore his sailing master, William Bligh, to inspect this new island. Cook’s later death, in Kealakekau Bay on the island of Hawaii on February 14th, might have been prevented if he had been a less conﬁdent commander, and had not been received as a god by the superstitious. As Daws suggests, he was probably the victim of “the delicate seasonal shifts in the balance of power between political and religious factions in Hawaiian society”. Shortly after Cook’s fatal encounter, the Hawaiians acquired their greatest hero in the warrior Kamehameha, nephew of the chief Kalanipuu on the island of Hawaii. Landing on Maui, he defeated the ﬁrst army sent to oppose him in 1790. Within the next ﬁve years, Kamehameha’s army wore down the resistance of his rivals on Maui, Molokai and Oahu. Finally, he prevailed over the stubborn islanders of Kauai, partly through conquest and partly through tenacious diplomacy. By agreement, Kaumuali

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would continue to govern Kauai as a tributary king under Kamehameha, the nowundisputed overlord of the Hawaiian Islands. Kamekameha, founder of the Hawaiian Kingdom, owed his success in part to his acquisition of foreign-type vessels that made it possible to move more rapidly among the islands. The original relationship between his kingdom and the distant British government was the result of amicable negotiations between Kamekameha and Captain George Vancouver, who had been instructed to winter over in the Sandwich Islands on his way to complete the survey begun by Cook of the waters oﬀ the north coast of North America. In February 1794, just before his ﬁnal departure from the kingdom, Vancouver was apparently oﬀered a voluntary “cession” of the island of Hawaii in return for the use of one of the British ships, but the deal was never consummated. Most historians are doubtful that Kamekameha could have intended to give away such an important part of his realm (Kuykendall, vol. I, 1938). But the cordial relationship between the two men created the foundation of a close British connection with Hawaii that continued throughout the 19th century. The Hawaiian kingdom quickly became irresistible to Western traders, planters and missionaries. Under their inﬂuence, the native islanders began to move away from the strict, traditional, god-driven system of religious taboos (kapu) that had maintained the priests (kahunas) in a position of dual authority with the aristocratic elite (aliis). Increasingly, Christianity became the dominant religious inﬂuence on the traditional rulers. Henceforth, their moral authority was endowed with a new spiritual foundation derived from the Protestant missionaries. The rulers’ exposure to the expanding and cosmopolitan settler community gave them conﬁdence to develop an indigenous system of constitutional government and a new code of criminal law. By mid-century the quasi-absolutist monarchy had become the “enabling force” behind the imposition of Protestant ideology on the Hawaiian culture (Dibble, 1909). Even before the Californian gold rush of 1849, Honolulu was being transformed into a boomtown. Sky-rocketing prices widened the gap between the old and new holders of wealth and power within the kingdom. Quite diﬀerent views began to emerge on the role that Hawaii should play in the world. By then three great powers had installed themselves in the South Paciﬁc: Great Britain, France and the United States. New Zealand was now British; and Tahiti and the Marquesas were French. Annexation, usually by force, was becoming the fate of the Polynesian islands in the region. Which power would prevail on the Hawaiian islands? Would the kingdom be permitted to evolve as an independent state? Within a few decades, Hawaii had become a polyglot society. In 1838 an American missionary, William Richards, had been appointed as principal adviser to King Kauikeaouli. Under his inﬂuence, the Hawaiian government began to develop a westernized sense of civic responsibility. A declaration of citizens’ rights was proclaimed in 1839; the kingdom assumed the management of public elementary schools; in 1840 a constitution was enacted, based on the principle of representative government; a national legislature was elected; and between 1845 and 1847 a series of “organic acts” consolidated a system of cabinet rule, a professional civil service, and an independent judiciary. An American republican was propelling Hawaii in the direction of consti-

The Ruling of the Modern World (1815-1905)

tutional monarchy. The drafting was done by missionary-educated Hawaiians, but Western notions were settling in (Kuykendall, vol. I, 1938). For the new urban elite, the future of Hawaii would depend on the kingdom’s success in its treaty relations with the outside powers. Its ﬁrst experience with treaty-making was occasioned by gunboat diplomacy in 1839, when the French frigate L ’Artemise appeared under the command of Captain Laplace. In his shipboard manifesto, delivered with the threat of bombardment, he demanded complete religious equality for all Catholics, a bond of 20,000 from the chiefs to secure their compliance, and a salute for the French ﬂag (Daws, 1968). Under a degree of duress, a treaty of “commerce and friendship” was negotiated. One article over-toppled the native policy of total abstinence by the agreement to admit French wines and brandies under a modest import duty of 5. Another article insisted that French residents charged with any crime should be tried by juries chosen by the French consul and approved by the Hawaiian government. The French intervention caused some concern in London, where it was believed that Great Britain had developed some kind of special relationship with the distant kingdom. In 1840 there was much debate on the question whether Hawaii was a free and independent entity under international law or had the status of a British protectorate. The latter alternative had been virtually rejected by the Hawaiian chiefs in 1827, and no formal possessory act had been performed that could have established British “suzerainty”. In October 1842 the British government expressed support for the Hawaiian chiefs’ “sense of their own independence”, but emphasized that “no other Power should exercise a greater degree of inﬂuence” over the islands than that possessed by Great Britain. Two months later US Secretary of State Daniel Webster convinced President Tyler to take a higher road: namely, that the US government sought “no peculiar advantages, no exclusive control” over the Hawaiian government, “content with its independent existence”. Washington’s diplomatic diﬃculties with London and Paris continued until November 1843, when a joint declaration between the two European governments was signed in recognition of Hawaii’s existence as an independent state. The United States declined to become a party of that instrument, pointing out that under its constitution such an obligation could not be legally binding unless set out in the form of a treaty. So the US recognition of Hawaiian independence remained “informal”, a matter of policy rather than legal commitment. In fact, the matter was far from being resolved. The French continued to follow a wayward course. Incited by the French consul Dillon, a French naval wrecking crew rampaged ashore, causing damage equivalent to about one year’s revenue for the kingdom. On returning home, Dillon, it is pleasant to record, was censured and dismissed by his government. The royal yacht, Kamehameha III, was stolen by the French navy and never returned. The truth was that the Kingdom of Hawaii was not suﬃciently viable to qualify as an independent state in the perception of the powers of that era. By 1849 over forty white residents were working for the royal government, mostly Americans and Britons. Each was bound by a personal oath of allegiance to the king. Several served in the cabinet, placing further strain on their divided loyalties.

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After the French outrage, one of the cabinet, Jerritt Judd, an American medical missionary, was commissioned to lead a group of Hawaiian chiefs to Europe and the United States to sort out the kingdom’s treaty problems. The delegation included two future kings: the teenaged princes Lot and Alexander Liholiho. Judd’s instructions embraced the possibility that the islands, in an emergency, might have to be brought under the protection of a foreign power, or even sold, subject to legislative sanction (Daws, 1968). In Washington agreement was reached on a treaty that gave the kingdom nearstate status in its relations with the United States, where President Zachary Taylor was supportive of Hawaii’s case for independence. This instrument would serve as the model for a new treaty with Great Britain. France proved to be less accommodating, displaying further reluctance to accept the equal status of Hawaii as an independent state and yet unable to resort to forcible annexation. However, the French presence on the islands continued to be insigniﬁcant, and by the late 1850’s the French government’s colonial interest in the capture of Hawaii had begun to fade. By then the beneﬁts of a special relationship with the United States were becoming evident to many residents, not only to most of the American community in Honolulu. But would a commercial treaty based on reciprocity be suﬃcient, or would the long-term interests of the citizens be best served by outright annexation of the kingdom by the United States? The royal family seemed unlikely to accept annexation voluntarily. Alexander Liholiho (Kamehameha IV) was an Anglophile, and Lot (Kamehameha V) was a nativist. As far as they were concerned, independence would be determined by the kingdom’s prosperity. So both were in favor of a reciprocity treaty that would guarantee the duty-free sale of Hawaiian sugar on the American market. During the American Civil War there was strong Honolulu sentiment in favor of the Union and of President Lincoln. In the following decades the power and inﬂuence of American settlers continued to grow (Bell, 1984). Meanwhile, the forces of reaction were at play. On his accession in 1864, King Lot (Kamehameha V) called for a constitutional convention in order to strengthen the monarchy. The vote would be limited to property holders, even though this involved the disenfranchisement of most of his own people. Curiously, most of his indigenous subjects were willing to comply, and most of the white residents were prepared to meet the new property qualiﬁcations, but many Americans in Honolulu were appalled by the desertion of the principle of universal suﬀrage. Unable to obtain consensus, Lot dissolved the convention and abrogated the existing constitution. His personal coup d’etat resulted in a less liberal regime. Under Lot’s new constitution (1864), a role was left for a national legislature, which has been described by Daws (1965) as “a strange place, ﬁlled with white members who refused to learn Hawaiian and native members who refused to speak English”. The political mood was souring, and a ﬁst ﬁght between the white and Hawaiian legislators did not bode well for the future of democracy and racial harmony. After the death of King Lot, his successor William (“Whisky Bill”) Lunalilo had a short but eventful reign, when a mutiny of the royal army brought Hawaii close to anarchy. After Lunalilo’s death, David Kalakaua was elected king by the legislative

The Ruling of the Modern World (1815-1905)

process provided in the constitution, despite popular support for his rival among most of the indigenous population. For most of the voting public, however, it was obvious that it had now become essential for Hawaii to have a reciprocity treaty with the United States (Kuykendall, vol. II, 1938). Kalakaua’s visit to Washington in 1874 helped to publicize the case for reciprocity. The prospect of such a treaty generated heated constitutional debate in the United States. Could the Senate bind the country by treaty in such a matter that impinged so directly on the treasury? It was conceded that the House must also have a vote, and this delayed the process further. Finally, however, the treaty was formally approved by both chambers, and forwarded for ratiﬁcation to President Ulysses S. Grant in 1875, even although it did not contain the provision for cession of Pearl Harbor that many Americans now felt to be a critical condition of US-Hawaiian relations. The multi-racial, immigrant society of Hawaii worked rather well together for the common purpose of a rising prosperity. Most employment was directly or indirectly related to the giant sugar plantations. Social issues forced a reformist movement to the surface. The new constitution of 1887 was intended to be a modest balance between property rights and the principle of universe suﬀrage, but it had the eﬀect of aggravating the problem of racial discrimination. Residents of American or European parentage had a vote, regardless of the date of their arrival on the islands; Orientals were enfranchised only if natives of the kingdom. Meanwhile, constant rumors of abrogation or revision of the reciprocity treaty with the United States kept the sugar planters in a state of unease. Opinion in the US Congress was shifting in favor of treaty renewal on condition, as argued earlier, that the United States should be given exclusive use of Pearl Harbor as a permanent naval base. King Kalakaua had always opposed this condition, along with most of the indigenists, but now the reformists were in control. In 1887 the treaty was renewed subject to that concession. A revolutionary coup, led by a half-Hawaiian, half-American, Garibaldian ﬁgure, Robert W. Wilcox, was put down, but the native jury that had convicted one of the revolutionaries, a Belgian, of treason refused to convict Wilcox, who emerged with a stronger native following than before. The reformist constitution continued to be the focus of violent dissension in the legislative assembly. Kalakaua himself was at the center of most controversies, but early in 1898 he died and was succeeded by Queen Liluokalami. The new ruler had sworn an oath of loyalty to the constitution in 1887, but she was determined to assert all the sovereign prerogatives she could muster under it. To the reformers, she represented an obstacle that would have to be overcome, if Hawaii was to achieve lasting stability through a permanent relationship with the United States. Some members of the assembly pressed for a new constitutional convention to curb her powers. For a minority growing in number, the only solution was annexation. By 1893 the politics of the islands was moving toward a confrontation between royalists and republicans. The issue was forced by the Annexation Club and a Jacobinist-inspired Committee of Safety, most of whose members agreed on the need for republican revolution by annexation. Despite her popular following among the indigenous population,

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Liliuolani’s hold on the throne was now becoming tenuous. Early in 1894 Sanford Dole accepted the presidency of the Committee. As the government unravelled, the idea of a relatively peaceful revolution seemed unstoppable. On July 4th, 1894, Dole announced the inauguration of the Hawaiian republic and proclaimed himself president. The new regime was welcomed by US President Grover Cleveland, and by Queen Victoria later in the year. But the revolutionary movement was conﬂicted. To many of its activists, the ideals of American libertarianism might have to wait. The old dilemma remained. How could the system of oligarchy, which seemed essential to the maintenance of a prosperous nation, be reconciled with a representative form of government? As in Mississippi, so in Hawaii: “the will of the majority could not be trusted; unlimited free speech would be dangerous; trial by jury, especially by native jury, would open the way to contempt for law” (Daws, 1968). Moreover, the royalists were not ready to concede. Wilcox returned to the side of the queen. But in January 1895 Liliuokalana herself was arrested and conﬁned to Iolani Palace. Hundreds of royalists were captured and brought to trial. Wilcox and four others sentenced to death had their sentences commuted to lengthy terms of imprisonment. By the time of the Queen’s release, it was too late for Liliuokalani to recover her throne in Washington, DC. She had been eﬀectively defamed by the annexationists. In July 1898 the formal annexation of Hawaii was signed into US law by President McKinley. During these turbulent years, the applicability of international law was not strongly argued out. Legally, the US government was derelict in acquiescing in the importation of American arms in support of insurrection in the territory of a treaty partner with a constitutional government that had been recognized as legitimate for many decades. But the American annexationists had their eyes ﬁxed on their nation’s “manifest destiny”. It was the high tide of US colonialism, coinciding with the Spanish-American War. Political realists convinced of the need to secure the Philippines saw the strategic advantage of possessing territory in the South Paciﬁc. Reﬂections. The ﬁrst impression of Hawaii today is of an island paradise that had captured a substantial share of the tourism market. Living standards are high. The economy may suﬀer from the usual ﬂuctuations of the tourist business, but, blessed by the unlimited resources of sun and sea and buttressed by the world’s richest power, Hawaii might be considered more of a beneﬁciary than victim of American annexation since achieving statehood in 1959, the inhabitants of these seductive islands have won civic equivalence with their fellow citizens throughout the United States. yet many of the indigenous people of Hawaii today are reluctant to view themselves as beneﬁciaries of progressive US imperialism. Despite the many special arrangements in place for the Polynesian minority, directed by the indigenous elite, there is still a smoldering resentment, class-based as much as race-based, against those who engineered their fate in the 19th century. Some of the indigenists even talk of a right of secession. To what extent can the international community be expected to intervene in the hope of ﬁnding a corrective? This is a question that must be taken up in the larger context of the world’s indigenous peoples.

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The Subjugation of Indigenous Peoples One of the most tragic aspects of imperial capture in the 19th century was the failure of Western colonial powers and their successors to guarantee rights and beneﬁts to the indigenous peoples brought under their control. The Western rulers and advisers responsible for the welfare of these peoples failed to met the standards of treatment invoked by their own benevolent philosophes and literati. With rare exceptions, the settler regimes imposed on “unsettled” and “unoccupied” territories created grave inequities that continue to embarrass the descendants of those ruling elites and humiliate the victim cultures. The most conspicuous of these tragedies of the 19th century were acted out within ﬁve colonial and post-colonial contexts: those of Latin America, the United States, Canada, New Zealand, and Australia. These histories are quite distinct from one another, but by 1905, it was clear, they were all histories of moral failure. Questions. What went wrong? What factors in each case contributed to disengagement from the West’s own ideal of civic enlightenment in the 19th century? What explanations can be found for the persecution and neglect of indigenous populations that continued throughout succeeding generations? In what measure was this pattern of failure due to deﬁciencies in classical international law? Latin America. Spain’s intrusion into the New World in the 16th century can be characterized in various ways. At the same time, it has been suggested, it was “an invasion, a colonization eﬀort, a social experiment, a religious crusade, and a highly structured economic enterprise” (Deagan, 2003). The Spanish empire in the Americas was all of these things, on a larger scale than had ever been attempted in the Western hemisphere, and it lasted for over three centuries. It was eﬀected by force of arms; it was designed to maintain a permanent oﬃcial presence; it was an unprecedented challenge to discover a mode of cross-cultural coexistence; it was an opportunity to bestow the Christian faith on a “heathen” people; and a potential bonanza for those willing to work together on the extraction of wealth. Yet each of these truths needs to be qualiﬁed. Though carried out by military power in the early decades of the 16th century, the Spanish invasion never reached the level of total conquest. The territories of the New World were much too vast to be brought fully under the control of an “occupying force”. Very quickly it became obvious that continuing and eﬀective Spanish presence depended on an astute policy of collaboration between the settlers and the native people. Native collaborators quickly became indispensable as suppliers of information and advice on how to cope with an alien and diﬃcult terrain. Because the conquest was only partial, the colonial system it produced was also incomplete. Through time, many of the native peoples of the Americas were brought under direct colonial rule. These “peace Indians”, drawn into the cities founded by the Spaniards, were guaranteed certain legal rights and protection by the royal government in Spain. Although the Spanish settlers were unwilling to comply with the distantly enacted Ordinance on Discovery and Population (1573), they were ﬁxed

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nonetheless with the responsibility for self-defence against the “war Indians”: those who continued to occupy the territories beyond Spanish control. Lacking military resources of their own, the settlers were forced into arrangements with the “peace Indians”, who became the main line of defence against their uncooperative cousins. Those who maintained a state of almost constant warfare were not really in “rebellion”: as Kamen (2002) observes, they were engaging rather in “legitimate acts from their own free sovereign territory against incursions by strangers from outside”. The supposedly uniform authority of the Empire was represented on the ground by a fragmentation of relatively discrete, and highly localized, urban colonial regimes that depended on day-to-day collaboration with the local indigenous elite. In cultural terms, what emerged was a system of “parallel societies”. Each society remained consciously resistant to the process of acculturation. By the 17th century, however, as the settler society matured, Spanish attitudes to the Indians and their leaders hardened. Increasingly, the natives suﬀered oﬃcial relegation to an inferior status. The settlers became less dependent on them, as those of mixed races (the mestizos) – usually with Spanish fathers and Indian mothers – began to occupy increasingly inﬂuential positions in the new society evolving. The bridge between the two societies was under construction, but cultural dissonance continued. For example, eﬀorts to educate the native children were complicated by diﬃculties of translation between a simple language and Europe’s’s richest vocabulary. To the Spanish missionaries, the native people were the principal magnet that drew them into the New World (Fernandez-Armesto, 2003). For them, the highest spiritual values were at stake when confronted with the challenge of conveying the nuances of grace, sacrament, heaven and hell, and the Holy Trinity to their non-Spanish charges. But we should beware of pejorative stereotyping. It was the missionaries who played the most important pioneering role in developing a tradition of systematic scholarly research in “indigenous studies”: a tradition with “few equals in the history of empires, either then or since” (Kamen, 2003). Initially, the Spanish Empire was also – perhaps above all – an economic enterprise. The original idea, dating back to Christopher Columbus, was to build a commercial partnership between the Crown and European investors, such as Columbus himself, modeled on the Portuguese feitoria system: “a moneymaking trading venture in which largely self-contained European communities would establish proﬁtable trading alliances with American natives and share the proﬁts with the Crown” (Deagan, 2003). This system did not survive the early period of Spanish conquest, giving way to a quasi-medieval pattern of bondage that soon became corrupted into a system of enslavement. Native Americans who continued to oﬀer “resistance” to Spanish authority were denied any legal rights. It should not be forgotten that the Atlantic slave trade began with the European importation of Indian slaves from the New World before the traﬃc was reversed through sacriﬁce of the communities of black Africa. Such , in essence, was the legacy of the Spanish colonial Americas. It was a history of partial conquest and ever-encroaching dispossession, but also of more-or-less constant resistance, social adaptation, and the eventual emergence of a new, racially

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mixed, cultural identity that may still be unique today in a world increasingly familiar with the challenge of cross-cultural accommodation. By the time of independence, in the early decades of the 19th century, Spanish authority had become a distant specter, propped up by those few who were still emotionally committed to the old “mother country”. The great empire had become as fragile as an egg-shell; and there were no Spanish soldiers on the ground to break Humpty-Dumpty’s fall. So the indigenous population of the Americas occupied “a peculiarly ambiguous place in the Spanish scheme of things”. By the 1830’s the inhabitants of purely aboriginal descent had become a minority in almost every part of Latin America, as had those of purely Spanish pedigree. Sadly, the cultural merger that had occurred over the previous 300 years failed to produce the robust collective energy needed to sustain and develop the institutions of modern constitutional democracy. The revolutionary wars of liberation that produced a system of independent nation-states throughout South and Central America brought as much ruin as beneﬁt upon the people of the region: a ruination that would be “protracted, internecine, sanguinary, destructive and impoverishing” (Fernandez-Armesto, 2003). As North America advanced to a future of prosperity, democracy and self-conﬁdence – unevenly distributed – the rest of the hemisphere slid backwards into a condition of dependency, from which it is now just beginning to recover. Today the ethnic dimension of “indigenist” issues in most parts of Latin America is blurred because of the high degree of miscegenation. In Mexico, for example, Mexicans of mixed blood ( mestizos) comprise at least 80 of the population (Lindau and Cook, 2000). So the indigenous movement ( indigenismo) cannot be characterized there in sharply confrontational terms (Stavenhagen, 2000). The United States. Almost all of the ﬁrst colonial expeditions to the United States were unsuccessful, defeated by the terrain. Most of the early settlers in Virginia were lured there by the hope of ﬁnding silver, like the Spaniards further south. The Spanish example inspired pioneering Virginians like Captain John Smith and John Rolfe (Deagan, 2003). More than half of them died young, without issue or monetary satisfaction. Unlike the prospering Spanish settlers of their era, the early Virginians had little hope of recruiting an indigenous labor force, voluntarily or otherwise. Generally, the early North American settlers were cut oﬀ from the interior by the vastness and ruggedness of the landscape. In New England, most of those who arrived as farmers had to make themselves over into traders, as the economy grew beyond the subsistence level. In the words of Felipe Fernandez-Armesto (2003), New England was “launched by a form of danegeld: subsidies and supplies extorted by threats of war. It was saved from an early death by its maritime outlook”. The natives, they learned, would be diﬃcult to subjugate through assimilation in the Spanish manner. The history of the indigenous peoples of North America, at the time of “contact” with Europe, stands in sharp contrast with that in the territories south of the Rio Grande. The Spaniards had arrived, fortuitously, in an epoch of great imperial amalgamations of distinct but kindred ethnic societies, earlier pre-state groupings that have been characterized as “chiefdoms” (Carneiro, 1981). In the North, the ﬁrst

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British and French settlers confronted a wholly diﬀerent indigenous reality: a scattering of hundreds of largely disparate nations, tribes and bands. In most regions, these chiefdoms had little tradition of cooperative interaction with one another, except for strictly commercial purposes. Each group was more or less ﬁxed on its own welfare and identity. These native Americans were most unlikely fodder for the European empire-building machine. The complexity of the North American colonial scene in 1500 may be illustrated by the following examples of ethnic diversity. The southeast region – adjoining Spanish territories in what are now Florida, Mississippi, Alabama and adjacent states – included the territories of seven major groupings of native Americans: the Cherokee, Chickasaw, Creek (Muskogee), Choctaw, Seminole, Natchez, and Catawba. The northeast region, immediately to the north, was the home of twelve large ethnic groups: the Huron, Iroquois, Lenni Lanape (Delaware), Powhatan, Shawnee, Miami, Lumbee, Massachuset, Wampanoag, Narraganset, Pequot, and Mohegan. The southwest region included the traditional territories of eleven nations: the Navajo, Hopi, Zuni, Tobono, O’odham, Pueblo, Jicarilla Apache, Mescalero Apache, and Lipan Apache. The number of ethnically distinct societies north of the Rio Grande was probably as high as six hundred. Their populations across North America may have totalled three or four million, and possibly more. Their diversity created severe learning difﬁculties for the settlers, far beyond the research capabilities of the day. Moreover, the thinness of their distribution over the continent, still largely unexplored, kept down the frequency of encounters. It tended to generate fearful and exotic phantasies. The worst atrocities were committed by ignorant soldiers and settlers. What evolved was a history wholly diﬀerent from that of the Caribbean, Mexico, Central America, or Peru (Collier, 1947). In the 17th century most of the tribes of North America were still hunter societies, often forced into wars with their neighbors over competing claims to the means of survival. The most powerful usually took what they needed from the weak. So the rise of the Iroquois Federation (the Hotinonshonni) was a remarkable phenomenon. Initially, it consisted of ﬁve neighboring tribes sharing the Iroquois language: the Mohawks, Senecas, Oneidas, Cayugas and Onondagas. The Cherokee, the largest of the Iroquoian group, remained outside. Like the other Iroquois-speaking tribes, these nations were semi-sedentary, mixing hunting with the cultivation of maize, beans and squash. The ﬁelds were worked by parties of women, each directed by a matron. The Iroquois Federation (“the people of the extended house”) seems to have been formed in the late 16th century. Over the next one hundred years it evolved into an organization inspired by a plan to renounce war among the member tribes and to form a united front against common enemies. This notion of a perpetual, albeit limited, peace is generally attributed to the Huronian shaman Deganawida (“the Peacemaker”), who lived in the last ﬁve decades of the 16th century. Oral tradition records that he was assisted by Ayouhwathah, an Onondagan, living among the Mohawks, who became the model for Longfellow’s ﬁctionalized Hiawatha. The Mohawks were the ﬁrst of the Iroquois to be converted to the cause of perpetual peace, followed by their four neighbors. According to legend,

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these tribes were won over by Deganawida’s pleas to abandon cannibalism and seek out “peace, civil authority, righteousness and the great law”. European imagery of the “noble savage” was inﬂuenced by the Iroquois example. Together the Five Nations, later augmented by the Tuscaroras, maintained a kind of international organization. Its decisions were made by consensus, not majority vote. When diﬃculties in reaching agreement were anticipated, smaller groups met in caucus (a term derived from the Algonquian word for “adviser”). If diﬀerences persisted, the older chiefs spoke last in the hope of discovering common ground. If no consensus was possible, each nation, band, or faction was free to go its own way under no greater obligation than to avoid harm to the other members of the Federation. Like Wilson (1999), we might admire the Six Nations experiment in regional diplomacy “with its blending of male and female, hereditary and elected, and its remarkable success in enduring the endemic warring among the Hotinonshanni, without the use of force or a strong executive”. Friedrich Engels (1820-1895) saw in it the perfect example of “primitive communism”: no soldiers, no police, no king or prefect, no prisons or lawsuits. The indigenous peace negotiated among the Iroquois proved to be impermanent. It is usual to explain the collapse of the Federation as a peace mechanism by reference to a catastrophic smallpox epidemic in 1634, which is believed to have killed at least half of the Iroquois in less than four months. In 1641 members of the alliance, fearful for their survival, descended murderously on the neighboring tribes: the Eries, the Hurons and the Neutrals. Perhaps it was an economically driven war, motivated by the Iroquois need for a new source of beaver pelts, or, alternatively, an ideological war compelled by their ancestral duty to replace the dead. Most of us are perhaps familiar with the story of the massacres of the peaceful Hurons in this “Beaver War”. It seems unlikely that the “genocide” war was actually intended to wipe out the Huron race. The scale of the killing may have been exaggerated by the French Jesuit missionaries, since the Hurons were their allies and the most Catholicized of all the tribes in North America. Apparently many Hurons were taken in by the Senecas and Mohawks after the ﬁghting (Wilson, 1999). There is no compelling evidence in either direction. In any event, we now believe, looking back on 17th century American colonial history, that peaceful diplomacy had no chance of becoming the chosen way of bridging the huge divide between the settler and indigenous societies of that era. By the 1670’s those tribes in contact with the settlers in New England, for example, had discovered how to master and repair European ﬂintlock muskets and carbines, in place of their bow-and-arrow weaponry. The resort to armed resistance to the encroachments on their lands and traditions seemed a viable and necessary response. The conﬂict initiated by “King Philip” of the Wampanoag in southern New England in the 1670’s would prove to be the forerunner of two centuries of bloody encounters throughout the expanding territories of the United States (Schultz and Tougias, 1999). Duplicity became a prominent feature of the history of settler-native relations in the United States, before and after Independence. Usually treachery was the result of the settlers’ lust for land. It seems clear, for example, that trickery was involved in the

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1737 “Walking Purchase” of the lands of the Delawares. Historians are divided, however, on the extent of Thomas Penn’s culpability. When the Delawares complained of being cheated, Thomas, the 35-year-old son of William – and his father’s choice as the manager of the Pennsylvania province – persuaded the powerful Iroquois to oust the Delawares from the land they had acquired by treaty from his father (Blumenthal, 1975). By the early 18th century the Six Nations had become the dominant political force among the indigenous peoples in the colonized region of North America. The core of the Iroquois Confederation consisted of some 50,000 individuals, living in 50 or so villages in central New York. For almost four decades down to 1763 it had striven, more or less successfully, to maintain order, somewhat in the manner of an empire. Its ambit of inﬂuence extended over the major watersheds: from the St. Lawrence in Quebec to the James in Virginia, from the Hudson in eastern New York almost as far west as the Mississippi. Conquered tribes paid tribute to the Iroquois, who, in the words of Carl Van Doren, “alone claimed the right to say who should go to war, and why and when”. Rebellious tributaries, such as the Delawares and Shawnee to the south, were assigned to hunting grounds chosen by the Iroquois Federation. Peace diplomacy with the white colonists was fostered chieﬂy through Iroquois treaties with Pennsylvania, Maryland and Virginia. Especially the treaties with Pennsylvania, reﬂecting features of both cultures, might, in a better ordered universe, have become the model for future relations among the diverse peoples of North America. These texts were suﬃciently well considered by the white establishment to be collected and printed by Benjamin Franklin in the late 1750’s and early 1760’s. So it was the Iroquois of warrior reputation who led the way for an alternative to war. By the 1770’s the imperial system of land acquisition in North America was breaking down as the colonial assemblies assumed greater control (Mohr, 1933). The colonists’ relationship with the Indians at the outbreak of the War of Independence was extremely sensitive. General Washington and his fellow revolutionaries knew how diﬃcult it would be to maintain the tribes’ neutrality. The expense of keeping them on side would outweigh the beneﬁts in the form of military assistance. The British had the advantage of being able to assume the role of protector against the more immediate aggressions of the colonists, who were seen to be determined to deprive the Indians of their lands. Moreover, the Indians preferred to ﬁght on what they were assured was the winning side. Almost entirely, those who fought at all fought with the British. The Indians were not mentioned in the 1783 Treaty of Peace. In London, the Opposition in Parliament attacked the treaty as a surrender of the valuable fur trade and as a betrayal of Britain’s Indian friends. Pragmatists explained that the fur trade was not worth the very considerable expense of protecting it with a continental system of forts and naval bases. In reality, the treaty of 1783 kept open all issues concerning the Indians and the fur trade. Negotiations with the new government left the Indians dissatisﬁed with their treatment. Almost invariably, they had reason to complain that they had been deceived into signing instruments that they had not understood. So many promises

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had been violated, in the letter or the spirit, that warfare seemed to many the nobler, if not wiser, course to pursue. In retrospect, the Indians’ decision not to support the cause of American independence is understandable, but it left the general impression at that time that they were hostile to the infant republic. Throughout the decades that followed, the “Indian question” continued to fester. In the eyes of most white American citizens, the nation’s “manifest destiny” was to expand into all the spaces to the west. To question the rightness of this goal was to belittle the republic’s founding vision. Even today, the “Indian ﬁghter”, Andrew Jackson (1767-1845), has his admirers (Remini, 2003) as well as his detractors (Wallace, 1993). Those who venerate the ﬁrst great populist in American politics – more genuinely democratic than any of the founding Fathers – must come to terms with the fact that his popularity in his own time was due to his military fame, and that most of the enemies he killed were Indians. Yet, despite the prevalence of force in the US government’s relations with them, the Indian peoples of North America were not “perpetual enemies in endless wars”. In truth, there were two parallel histories of that diﬃcult relationship. The coexistence of “Indian wars” and “Indian treaties” created innumerable anomalies, and two incompatible ways of reading the 19th century history of the United States. Sadly, the Indian treaties of the 19th century (Kappler, 1904, 1972) became little more than “real estate conveyances, by which the Indians ceded almost any land the United States wanted for the price it was willing to pay. At the end, some of the tribes were signing away their rights to self-government” (Prucha, 1994). Indian treaties were a political anomaly, exhibiting “irregular, incongruous or even contradictory elements”, while composing a single generic identity. They demonstrate that the United States from its beginning recognized a measure of autonomy in the Indian tribes and bands. They and their treaties were accepted as having a special legal status outside the framework of international law (Price, 1973). Chief Justice John Marshall was prepared to argue the case for autonomy at length. In Cherokee Nation v. Georgia (1831) he asserted that the Cherokee constituted a state, “capable of managing its own aﬀairs and governing itself ”. But in Worcester v. Georgia (1832) he characterized Indian tribes as “domestic dependent nations” lacking the prerogatives of independent foreign states. The erosion of the “sovereignty” analogy had begun. With the widening disparity between the US government and the tribal chiefs, the concept of “Indian treaties” moved further away from that of “international agreements”. This perceptual shift was reﬂected in the early decision to place Indian treaty-making not with the State Department, but with the War Department, and later the Interior Department. Even when the southern tribes threw oﬀ their allegiance to the Union in the Civil War, the Confederate States themselves, in their own treaties with Indian tribes, recognized them as their “wards”. Since then, disputes between the tribes and the United States have been the business of federal courts, not of international tribunals (Prucha, 1994). As we have just seen, American expansionism also had lasting impacts on the indigenous Polynesian inhabitants of the Hawaiian Islands: Hawaii, Kahoolawe, Kauai, Lanai, Maui, Molokai, Niihau, and Oahu. The discovery of this enchanting archipelago is usually credited to Captain James Cook, who happened across Kauai in January

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1778 and anchored in Waimea Bay. But the islands were explored more thoroughly by the Russians (Barratt, 1987). The ﬁrst eﬀort to establish a white colonial presence in the region was also made by the Russians under the commercial auspices of the Russian-American Company based in St.. Petersburg, although the employees of that enterprise represented a broad diversity of ethnic origans (Dibble, 1909). As noted above, the Polynesian warrior king Kamehameha I (c 1758-1819) had united the islands by force of arms in 1791, but he and his successors had constant diﬃculty in preserving the union. The chiefs and chiefesses of the various islands were in frequent discord, usually over land redistribution issues. Usually they could depend on the opposition of the sugar planters as their common enemy. Fertile land was not scarce, but enough was never, it seemed, enough. The Hawaiian sugar industry was based on global ambitions. The traders and missionaries, like the planters, were overwhelmingly Americans, but even as late as the 1850’s less than 3 percent of the total population of the islands (80,000) were whites. The productivity of the soil acquired brought great aﬄuence to the haole landowners, and gradually created a deep cleavage in Hawaiian society. The native Hawaiians might have shared more fully in the prosperity, but instinctively they resisted subjugation as a labor force in the sugar ﬁelds. They had little interest in a life pattern based on steady employment, unsuited, as Bell (1984) suggests, to the capitalist system of rewards for services rendered. Moreover, the traditional Polynesian “feudal” system of tenure and fealty oﬀered no prospect of enrichment. The wide gap between the native and haole upper classes and the lower Polynesian class was gradually ﬁlled by migrants, mostly from Japan, China, Korea, the Philippines and other Asian countries, who discovered little competition from the original inhabitants for skilled jobs and positions of rising inﬂuence. The reluctance of the Japanese and other Asian migrants to marry outside their ethnic community contributed to the stratiﬁcation of Hawaiian society by the time of the American take-over of the kingdom in the late 19th century. Since there was virtually no Polynesian middle class, the indigenous movement of the late 20th century would be as much a class struggle as a demand for the recovery of traditional indigenous rights. The history of subjugation of the indigenous peoples of Alaska has some features in common with that in Hawaii, but it is more variable. Like Hawaii, the Alaskan region in the 19th century was subject to Russian and British as well as American encroachments. It was the Russian-American Company, again, that was the original entrepreneurial presence, beneﬁting from the Czar’s grant of exclusive hunting and trading privileges throughout Alaska and as far south down the coast as California. Since the land oﬀered little prospect of proﬁtable cultivation, there were very few Russian settlers. St. Petersburg had little interest in sovereignty claims. So when the cost of the Crimean War escalated to a dangerous level, the Czar did not hesitate to put up for sale the land his predecessors had never formally claimed. It was a good deal. For 7,200,000 Secretary of State William Seward, (1801-1872), secured Alaska for the United States, enduring the scorn of his critics for his “folly”. In the treaty of 1867 it was provided that the “uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt ...”, thereby assimilating the native Alaskans to other native Americans to the south (Chance, 1990).

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Uniformity of treatment was diﬃcult to apply through legislation to the peoples of Alaska. The region was divided among three entirely distinct ethnic groups. The coastal land of Southern Alaska and the interior were occupied by “Indians”: the Haidas and Tlingets in the former, and the Athabascans in the latter. Almost the entire coastline of the Beaufort Sea in Northern Alaska and southward round the landmass as far as Prince William Sound was “Eskimo” territory. To the west, all the islands of the Archipelago were the hunting grounds of the Aleuts. It was the Aleuts of the Pribiloﬀs who had ﬁrst succumbed to the Russian fur hunters. It was not their rocky islands that were sought out, but their oﬀshore means of subsistence: sea otters, walrus, whales and, above all, the Paciﬁc fur seals. Not completely aquatic, these creatures, like other sea lions, must come to land to have their young. For centuries, their crowded rookeries have been easy prey to harvesters in many regions. In the South Atlantic the fur seals were completely exterminated in the early 19th century, and the Antarctic species were to meet the same fate later, except in the Falkland Islands where they survived under the conservation measures of the British colonial authorities. By the late 19th century, however, the principal rookeries of major commercial value were those of the Pribiloﬀ, Robben and Komandorskie Islands of the Bering Sea and adjacent waters. This oil-and-fur-rich resource was to create dangerously intense international competition both on land and at sea. Eventually, the problem would be brought under control through international adjudication and innovative regime-building (Johnston, 1965). But the original hunters, the Aleuts, perhaps once as numerous as 16,000, declined steadily in numbers to less than one-quarter of that regional total by the end of the 19th century: victims of a new, ecological, brand of subjugation. Canada. Like its American counterpart, the story of Canada’s treatment of its indigenous peoples starts in the British colonial era. Both continue to unfold today, mostly outside the framework of international law, although it is gradually becoming accepted that unresolved issues of aboriginal entitlement are important and appropriate matters that deserve the attention of the international law community. In both countries, historians diﬀer in the severity of their interpretation, but almost all agree on the predominance of commercial greed, land hunger, cultural dissonance, and outright deception on the part of the settler communities of North America. Despite these similarities, one outstanding diﬀerence emerged in the 19th century. Notwithstanding the coercive nature of colonialization in British North America at that time, the Canadian history of settler-aboriginal relations is rooted less in conquest than in trade and treaty-making. No national destiny was made manifest. No Canadian soldier-politician achieved renown as an “Indian ﬁghter”. The Canadian history of these troubled relations might be said to have begun in 1670, when Charles II of Great Britain granted trading rights to the Governor and Company of Adventurers of England Trading into Hudson’s Bay. The ﬁrst trading posts of the Hudson’s Bay Company (HBC) were sited on the banks of the Bay itself, supplied with furs and food by the Indians there and in adjacent territories. As for the earlier French traders, fur was the ﬁrst and most valuable commodity of interest to the HBC. The fur trade evolved on the basis of commercial alliances within a pre-

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existing economic network developed by the Mandan nation on the Missouri River and extended to many tribes, including the Apaches, Assiniboine, Cheyenne, Commanches, Cree, Crows, Kiowa and others. The existence of this aboriginal network of supply routes through much of Central North America accelerated the early development of the Company’s operations (Opekokew, 1980). In the decades that followed, these fur trade patterns would become the basis of the early Canadian economy (Innis, 1956). The original charter of 1670 made no challenge to the political autonomy of the Indian peoples. Since almost nothing was known of them, there was no basis for recognizing or denying their status as politically organized “nations”. There was no explicit intention of claiming “sovereignty” over their lands. The original purpose was the corporate goal of securing rights of usage suﬃcient to meet the Company’s commercial interests (Newman, 1986). Soon, however, the idea of European-style legal ownership took hold, applied by the newcomers to the land, enclosed by pickets, around the Company’s trading posts. Yet ﬂexibility was forced upon the European traders. The notions of the market economy they imported had to be adjusted to the local tradition of barter and gift-giving ceremonies that symbolized the need for goodwill in the negotiation of commercial arrangements among equal trading partners. It appears that the white traders were initially received in much the same way as traders from distant tribes, in conformity with the existing indigenous pattern of treaties of peace, alliance and trade. By 1763, at the end of the Seven Years’ War, it was the declared policy of Great Britain that land in the colonies of North America should be acquired through treaties negotiated in good faith. Indians could not be dispossessed without their consent, and all consented cessions would be to the Crown alone, not to corporations or private individuals. Royal sanction was conferred on this policy through a proclamation that had the legal eﬀect of a statute. The ﬁrst Indian treaty in Canada was signed in 1725 between the Governor of Nova Scotia and the Sachem and delegates of the Mic-Mac (Mi’kmaq) tribe. Later, questions would arise about the legal “treaty-making” capacity on both sides (McInnes, 1969). Technically ﬂawed or not, the 1725 treaty (ratiﬁed in 1726) seemingly acknowledged the co-existence of British law and Mi’kmaq custom, but after 1729 “a more forceful British military presence led oﬃcials to reinterpret the treaty in the light of their own interest”. The fortress city of Halifax was settled in 1749 and the trading and ﬁshing town of Lunenburg in 1753. The 1726 treaty was renewed in 1749 and 1752, but not with all of the Mi’kmaq bands as signatories. In 1761 a more formal treaty of peace and friendship was signed with a ceremonial burying of the hatchet. Historians have diﬀered in their interpretation of this instrument. Did it reﬂect the British government’s acceptance of the independence of the Mi’kmaq and of the legal status of their customs? Only at the end of the 20th century would lawyers come down on the side of the Mi’kmaq (Wicken, 2002). Even more diﬃcult Indian treaty issues were encountered at the other end of Canada, running through the 19th and 20th centuries. As many commentators have noted, it is not entirely true that the Indians of British Columbia are “non-treaty” Indians. Originally, in the “Fur Trade Period” (1774-1849), it appears that the white set-

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tlers were ﬁxed very largely on their own commercial interests, making little eﬀort to inﬂuence the indigenous coastal communities of Vancouver Island or the mainland of British Columbia. In that period there was virtually no administrative presence in these colonies, which were quite separate from the evolving Canadian colonies far to the east, and missionary activities were just beginning. Spaniards had been the ﬁrst Europeans to arrive in 1774, on a ship from Mexico under the command of Juan Perez. In the following year two more Spanish vessels appeared under Captain Bodega y Quadra, looking for new lands to claim for the Spanish Crown as well as for tradeable commodities. In 1778 Captain James Cook stayed over in Nootka to overhaul his vessels, and he was rewarded by the discovery of the sea otter, whose fur would soon command the status of a luxury commodity in European society. By 1785 the “fur rush” was on, led by British and Yankee traders. Further north, Russian fur traders were establishing bases in Alaska, at Kodiak (1783) and Sitka (1799). Soon the explorer-traders of the North West Company would be crossing the Rockies: Alexander Mackenzie (1793), Simon Fraser (1808) and David Thompson (1811). By 1815 the west coast of Canada was “glutted with trade goods”, the “quid” for the “quo” of the fabulous fur trade. By 1849 both Vancouver Island and mainland British Columbia were established as British colonies under Governors granted a high degree of discretionary authority. In the case of Vancouver Island, title to virtually all the land was granted by the Crown to the Hudson’s Bay Company, and its oﬃcials were commissioned virtually as agents of the Crown. Land hunger had taken hold. It fell to James Douglas (1803-1877) to secure as much territory as possible through the arts of negotiation. As representative of the British government, as well as chief factor of the HBC, he took the oﬃcial view that although absolute title to the land was vested in the Crown, the Indians of British Columbia did have proprietary rights to it, which were subject to extinguishment through good faith treaties and the payment of fair compensation. Altogether fourteen “treaties” of this kind -really real estate transactions – were negotiated by Douglas with the tribes around. The purpose was to ensure that most of the land of British Columbia should become “the entire property of white people forever”, except for village sites and enclosed ﬁelds agreed to be held in reserve for exclusive Indian use, though the Crown purported to retain absolute title even to these properties. Lacking the government funds necessary to complete the acquisition of all lands, Douglas retired, yielding to less benevolent successors who denied the existence of Indian title or chose to ignore the issue entirely. When British Columbia as a whole became a province in 1871, jurisdiction over these issues had passed from the local Governor to the national federal government in Ottawa. Under the Terms of Union (Article 13), the new Dominion assumed “the charge of Indians and the trusteeship and management of lands reserved for their use and beneﬁt”. The local authorities of British Columbia maintained, however, a consistent policy of denial of responsibility, which included denial of the need for treaties. Throughout the post-Confederation years of the 19th and most of the 20th century, Indian issues were “unﬁnished business”.

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Reasons and Pavlich (1995) attribute the Indians’ sense of alienation throughout Canada to a clash between two incompatible legal cultures. For the settlers, all must yield to the sacrosanct freedoms of contract and property, the pillars of liberal capitalism. For the Indians, land was not a tradeable commodity. During the treaty negotiations of 1876, Chief Crowfoot confronted the gulf across the table: “Our land is more valuable than your money. It will last forever. It will not perish as long as the sun shines and the waters ﬂow ... You can count your money and burn it with the nod of a buﬀalo’s head, but only the Great Spirit can count the grains of land and the blades of grass on these plains. As a present to you, we will give you anything we have that you can take with you, but the land we cannot give”. Yet generations later, all the lands had been taken, through treaties, cession or settlement. Only the reserves remained in Indian hands, and even these were held in trust by the Crown, leaving technicians to argue over the niceties of ﬁduciary doctrine (Rotman, 1996). New Zealand. The ﬁrst explorers of New Zealand were Polynesians who came from the eastern sector of the South Paciﬁc, perhaps as early as 2,000 BC. How they could navigate such immense transoceanic distances with simple canoes or rafts has been a marvel of nautical history. Polynesian settlements of New Zealand may not have begun until two millennia later (Davidson, 1981). On the smallest islands the Polynesians lived in tiny communities, endowed with a naturally benign environment, confronted with “few insect pests, no infectious diseases and no dangerous animals” (Campbell, 2003). At the other extreme, larger islands such as Hawaii and Tonga supported fairly sizable populations ruled over by hereditary chiefs and priestly-aristocratic elites with a complex system of temporal-spiritual authority that bore some resemblance to the structure of European medieval society. The Polynesians were aggressive peoples. Warfare was a familiar feature of life, apparently demanded by their religion. The most ambitious of men struggled for some of the power, prestige or eﬃcacy (mana) that emanated from the gods, whose sacred will passed down through a system of strict prohibitions (tapu, tabu or kapu), interpreted by the priests (kahuna). Despite the relative abundance of food and water, social conditions may have been so oppressive as to drive out the victims of local war or politics into a remorseless, underestimated sea. There is no record of happy homecomings (Davidson, 1981). The eventual Maori settlement in New Zealand seems to have coincided with a mild period of climate and beneﬁted from the variability of the land. But the soil was unsuited for the plants they had brought, forcing out a Maori talent for adaptation, especially on the cooler and wetter South Island. Early European observers found the Maoris “clever in all their exercises”. The second, European, wave of discovery arrived in the early 17th century, but clear records did not become available until mid-century. The Dutch crews sailing under Abel Janszoon Tasman (c 1603-c 1659), were discouraged from stepping ashore by the “murderous savages of the south”. Local hostility and heavy seas moved Tasman to explore elsewhere. A much more hospitable reception was encountered in Tonga and Fiji. The tribe that had killed several of Tasman’s men on the South Island was later

The Ruling of the Modern World (1815-1905)

conquered by Maori rivals, and reduced to slavery, in the 18th century. It seems they would have had little to oﬀer the East India Company in trade (Beaglehole, 1961). New Zealand was put on the map, in the most literal sense, by James Cook on his ﬁrst great voyage in 1769. The North Island was ﬁrst sighted by Nicholas Young, on the masthead of the Endeavour, on the afternoon of October 6th. Cook’s subsequent surveying of both islands changed the world’s perception of the South Paciﬁc, and the Maori perception of Pakehas. Because of his pivotal role in the history of exploration, it might be noted that the great British hero became a ﬁgure of Maori as well as British myth. He was, and still is, the great Pakeha chief. Debunkers have suggested it was his ship, not Cook, that was the god (Denoon and Mein-Smith, 2000). Historians searching for ﬂaws in the Great Navigator – the one “most diﬃcult to overpraise” – have questioned the necessity for killing nine Maori, including the chief Te Maro, on Cook’s initial visit to Poverty Bay, and his use of canon ﬁre on the same beach the following day, but the British public have always been willing to put their trust in Cook’s reputation for good judgement (Beaglehole, 1961). Over the next ﬁfty years, European sealers, whalers and traders became frequent visitors to the islands made famous by Cook. Missionaries started arriving in 1814, and in more serious numbers in the mid-1820’s. Permanent European settlers began to appear in the late 1830’s, scattered over the two large islands of the chain, still unaware of the diversity of these territories. The dominant picture was derived from observations at the Bay of Islands on the north side of North Island, where Cook had ﬁrst arrived and Europeans were most ﬁrmly concentrated. Yet in the years between 1769 and 1840, these settlers, whose descendants were to fashion a distinctly British society, ﬁrst survived through adaptation to certain traditional Maori values and institutions (Owens, 1961). As in Canada, no one in the early trading years in New Zealand was interested in changing the customary practices of the indigenous people. The ﬁrst interactions between Maori and Pakeha were usually directed by considerations of mutual beneﬁt and convenience. Fortunes rose and fell with the exportation of ﬂax through the 1830’s. The British Navy acquired a strategic interest in the timbers of New Zealand, resulting eventually in extensive deforestation which contributed to the development of the country’s expertise in sheep farming and numerous modes of agriculture. By the late 1830’s, New Zealand had become the granary for New South Wales across the Tasman Sea. The 1830’s witnessed the spread of missionary stations throughout various parts of the two islands. At the Bay of Islands, Charles Darwin arrived in the Beagle in December 1885 and spent some time at the mission and farm of the Waimate settlement, which he found to be the only “pleasant place” discovered during his visit to New Zealand. Life for the early missionaries was arduous, but their persistence was beginning to be rewarded with some Maori conversions (Horsman, 1971). Arguably, their success was due to social breakdown in the indigenous community, but also to improvements in the missionaries’ education techniques. Sometimes, Owens suggests, only one facet of missionary teaching had an appeal, “such as medicine or the idea of Sabbath as a day of rest”. New Zealand’s destiny became more evident with the rising volume of British emigrants in the ﬁnal years of the 1830’s. Emigration was encouraged by the New Zealand

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Company in London, which urged the British government to annex the country. A code of laws that the Company proposed to govern the new immigrants was read out, and well received, at dock-side. Institutions were promised for the preservation of peace and order. Although entirely lacking in legal eﬀect, the draft had a undoubted appeal, but by 1839 there were still only 2,ooo “permanent” settlers, about 1,400 in the North Island and 600 in the South (Orange, 1987). Yet in August of that year instructions were issued to Captain William Hobson to annex part of New Zealand on behalf of the British Crown and to establish a rule of law. Several months later the famous Treaty of Waitangi had been signed, and in May 1840 the whole country was brought under British sovereignty. Though initially made a dependency of New South Wales in order to simplify the process of annexation, New Zealand became a separate colony in November of that year. Hobson, appointed as Governor, established a crown colony system answerable to the Colonial Oﬃce in London (Dalziel, 1981). It is the existence of the Treaty of Waitangi that sets the Maori experience apart from other 19th century histories of aboriginal-settler relations. Yet it was not truly unique. Precedents for this kind of treaty, between a European power and an indigenous people or a non-Christian society, can be found in earlier history: in Barbary, India, and the Levant, for example, and in many other places. Usually these instruments were originally designed to serve as commercial arrangements, but often they evolved into something more like deeds of cession. Indeed Governor Hobson seems to have had the treaty-making practice of the British East India Company in mind as the model for New Zealand (Sorrenson, 1991). Moreover, the Treaty of Wantangi was itself to become a model of sorts for the 1874 Deed of Cession of Fiji (Campbell, 1991). However, no comparably constitutive, treaty-like instrument was to acquire such a pivotal role in Latin America, North America, Hawaii, or Australia, where a similar pattern of political issues has been in evidence since the mid-19th century. The famous treaty was signed by Governor Hobson on behalf of the Crown. According to the most comprehensive study on the subject (Orange, 1987), Hobson arrived at Waitangi with three principal objectives: clariﬁcation of New Zealand’s legal status; preservation of Maori welfare; and consolidation of London’s plans for peaceful colonization. Up to the late 1830’s, New Zealand had been treated in London as if it fell outside the ambit of British sovereignty, and in 1835 French, American and other rivals of the British in the South Paciﬁc had been lulled into a false complacency by the British government’s acceptance of the Maori Declaration of Independence. The instrument was signed by the Maori chiefs and tribal heads of the North Island only, an area that was relatively peaceful at that time but lacked any common system of formal authority. The English text asserted that “[a]ll sovereign power and authority within the territories of the United Tribes of New Zealand is hereby declared to reside entirely and exclusively in the hereditary chiefs and heads of the tribes in their collective capacity, who also declare that they will not permit any legislative authority separate from themselves in their collective capacity to exist, nor any function of government to be exercised within the said territories, unless by persons appointed by them, and acting under the authority of laws regularly enacted by them in Congress assembled”. It was agreed that the North Island leaders would meet in the autumn

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of each year to enact laws for the administration of justice, the preservation of peace and good order, and the regulation of trade. The tribes of the South Island, engaged in warring among themselves, were invited to join the Confederation of the United Tribes. It seemed to be the British policy not to claim sovereignty to these islands by virtue of Cook’s so-called discovery in 1769, despite the availability of that line of argument in the law of nations of that era. Given the rising power of the Royal Navy, it was a relief to many that the British did not intend to pursue a policy of conquest in order to eﬀect an imposed cession. However, in 1839 it appeared that the imperial interest would be best served by a negotiated cession, which would recognize certain Maori rights in their tribal areas. Since there was no uniform Maori system of governance over the two islands, there was no indigenous claim to sovereignty, in the European sense, that would have to be challenged. The Colonial Oﬃce also impressed upon Hobson the need for humanitarian concern. As Orange notes, the humanitarian movement in Britain had just succeeded in securing the emancipation of slaves and in promoting the notion that the expansion of the British Empire was conscionable only if the Crown was committed to the principle of trusteeship on behalf of the native races brought under British rule. The protective policy was held out as necessary to save indigenous peoples from “the worst eﬀects of uncontrolled European contact – disease, loss of land, degradation, depopulation and ultimately racial extinction. In New Zealand, they hoped to avert this ‘fatal impact’ to redeem the British record”. The treaty would provide the framework for a strategy of assimilation. Peaceful settlement was, then, at the heart of the new British policy for New Zealand. It was accepted that the sincerity of this approach would have to be proven by maintaining a largely unarmed European minority amidst a well-armed Maori majority, despite the security risks involved for the white communities. The question for the future was whether the following generations of immigrants in New Zealand would be able to live up to such a risky accord. So, from the British perspective, the Treaty of Waitangi was negotiated essentially in a political, legal and bureaucratic vacuum. Accounts of the ceremony suggest it was attended by a rather unusual degree of spontaneity on both sides (Colenso, 1890). Confusion was compounded by the diﬃculties of language, such as the problem of conveying the distinction between the sovereign rights of a state and the proprietary land rights of a tribe or “people”. Simpliﬁcation required some omissions: for example, the European concept of “sovereign authority” and “civil government” had to be reduced to the single Maori term kawanatanga (government or governance). The initial Maori reaction to the meeting was mixed. The objections of many were, at ﬁrst, quite vociferous. The translations were challenged, and reference was made to unpopular land sales, which, some feared, would lead to the loss of chieﬂy status. Hobson did not have an easy ride, but eventually the mood of the meeting shifted in his favor. Among the hundreds of Maori in attendance considerable confusion remained and many of the chiefs declined to sign, but by the evening of February 7th no less that forty-ﬁve “head chiefs” had attached their signature, taboo or mark to the Maori version of the text.

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The Treaty of Waitangi was signed by both members and non-members of the Confederation. Together, in Article I of the English text, they agreed to cede to the Crown “all the rights and powers of Sovereignty” possessed or claimed by them “over their respective territories”. In return, the Crown, in Article II, guaranteed to the chiefs and tribes “the full, exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other properties: for as long as they wished; and, in Article III, the Queen extended to “the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects”. This treaty language quickly became a cross-cultural battleground. After Waitangi, New Zealand fell prey to a succession of Maori-settler wars before settling down as a united nation. Today, however, the gap between Maori and European interpretations and expectations raised by Waitangi and the Declaration remains as wide as ever. The English-language and Maori-language texts of these and other documents do not entirely match. New institutions, such as the Waitangi Tribunal (Temm, 1990), have been created to deal with many of the issues (Renwick, 1990), but resentment continues to run through sectors of the divided Maori community, opposing indigenists who question the legitimacy of the treaty against fellow Maori who have accepted the general outcome of inter-racial accommodation. Claims to self-determination and the right of secession compete with more moderate claims for privileged minority rights (Durie, 1998). Despite the proliferation of widely varying opinions on the legal status of the Treaty of Waitangi, recent eﬀorts at compromise have oﬀered some middle ground. The government of New Zealand has suggested a number of propositions regarding the relevance of Waitangi, as reported by Brownlie (1992): i)

The Treaty created an exchange of the right to make laws for the obligation to protect Maori interests; ii) It implies a partnership that rests on the principle of good faith; iii) It is a framework that can be adapted to new social and political circumstances, as they arise; iv) Respectful of the needs of the Maori people and of the wider community, it calls for compromises on both sides; v) The Crown has at least an ethical obligation under the Waitangi Treaty to seek out ways of protecting the Maori interest in various contexts; vi) Under the Treaty, the Crown cannot evade its obligations by conferring authority on some other body; vii) There is an obligation on the government of New Zealand to respect and maintain traditional mechanisms for tribal controls; viii) There is a special obligation to work out management regimes for resources in which the Maori have traditional rights and interests; and ix) The Maori should be encouraged to choose from three alternative, equally legitimate, lifestyles: traditionalist, assimilationist, or mixed.

Australia. The Aborigines of Australia – the Australoids – ﬁrst became known to the outside world in the late 17th century, when early explorers such as the bucca-

The Ruling of the Modern World (1815-1905)

neer William Dampier (1652-1715) came across them on the northern shoreline of the continent. It has been surmised that the early Portuguese navigators, en route to the “Spice Islands” of the Orient, may have known something of the “great silent land” to the south, but they left no record of any sightings, much less of any contact with the Aborigines (Abbie, 1960). These “First Australians” are believed to have come down from Southeast Asia, but other “originalist” theories encompass India and Ceylon and even Central Europe. It is speculated that these Old Stone Age peoples, who never reached the stage of using metals, have a “history” of at least 25,000 years, or possibly much longer (Lacourt-Gayet, 1976). Despite variations among them, all Aboriginal communities were semi-nomadic hunters and gatherers. Each tribe, for countless eons, maintained a remarkably unchanged existence, foraging for survival over its traditional territory, which could be surprisingly small or extremely large. Their ecosystem was constant, barely aﬀording enough plants or animals to sustain them, much less to support an agricultural economy. They accepted “nature’s garden” as they found it. The land was the sole expression of life, contouring and coloring their spiritual and aesthetic imagination. When Captain Cook encountered the Gamaraigal near Botany Bay in 1770, he sensed a simple and courageous dignity in these native residents. His respectful, even aﬀectionate, descriptions of the Gamaraigal reconﬁrmed the European reading public’s romantic imagery of the “noble savage”. With no Aboriginal conception of agriculture, there was nothing to propel the construction of a village society. With no Aboriginal structures, there was nothing to convey the impression of organized human settlement. When the European settlers began to arrive in the early 19th century, they saw no evidence of “occupation” of the vast interior. If they had “discovered” lands inhabited by an agricultural society with a discernible system of rule, it might be supposed that they would have felt obliged to obtain the consent of the population by resort to treaty of one sort or another, as in North America and New Zealand. Instead they saw a largely uninhabited, “unused” land, ready for the taking: Australia was terra nullius, amenable to appropriation without the need for consent (Broome, 1982). Needless to say, the doctrine of terra nullius in Australia was based on a misperception. In modern (rather academic) language, Aboriginal society at the time of “contact” with white settlers operated “under a framework with a complex system of traditional laws involving family relationships, rights and obligations. Those were heavily based on kinship and traditional relationships with the land, and on a tight social structure prescribing individual obligations to other family members and the land”. On the other hand, the “more tangible manifestations of governance controlling secular aﬀairs, such as councils, did not exist” (House of Representatives, 1990). Governor Morris was under instruction from London to follow a policy of “amity and kindness” with the Aborigines, and his oﬃcials were probably not callously indifferent to their welfare, but as in North America and New Zealand, there was never any possibility that humanitarian scruple would be allowed to deﬂect the impulse to colonize the continent. The blacks of the interior were urged to imitate the whites and to learn to love the Christian God. In fact, violence erupted over the colonial policy of dispossession, and it spread with the expanding pattern of European settle-

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ment. Despite well-intentioned eﬀorts to provide shelter and basic education, the seeds of two hundred years of discord and bitterness had been sown. Most native Australians chose to distance themselves from Christian civilization, or to adapt to a modiﬁed version of traditional survival at the fringe of white Australian society. The tragic confrontation was between two entirely incompatible cultures: in Broome’s words, “between the Aboriginal people who saw the land religiously, as an intimate part of themselves and all life, and the Europeans who saw it economically, as a commodity to be taken, exploited, bought and sold”. Squatters and Aborigines had totally diﬀerent perceptions of what should be done with fallow land (Lacourt-Gayet, 1976). Unlike the Canadian fur trade in the 18th century, the Australian wool industry required the acquisition of extensive, ever-encroaching lands. From Britain alone, over 200,000 immigrants arrived in Australia between 1832 and 1850. Rapidly, European settlements stretched over most of southern and south-eastern Australia. It was the “pastoral age” of Australian history. By 1860 some 20 million sheep had found pasture in 400 million hectares of Aboriginal land between Southern Queensland and the bottom of South Australia. The Aborigines responded with violence. What ensured was a horriﬁc escalation of slaughter on both sides, each desperate to survive within the only mode of civilisation that they could comprehend. Water-holes and sheep stations became the sites of ruthless acts of barbarism and vengeance. Gradually, the Aborigines were overcome, weakened by disease and overpowered by larger, better armed and better organized militias, which included Aboriginal (“native police”) units recruited by the settlers to pursue their more “militant” kinsmen deep into the bush. As in New Zealand and North America, the second half of the 19th century in Australia bore witness to a deepening split within the indigenous community. Many Aborigines accepted the urban or rural ways of European society, usually under the inﬂuence of a Christian education. More than a few found a degree of prosperity in assimilation. As members of the rising middle class, some were admitted to the professional, political, and even sporting life of Australia. But even they could not easily escape the burden of racial prejudice and the heritage of collective dispossession (Reynolds, 1989). Over the generations, Australian politicians have been understandably reluctant in public to attribute the ills of society to the convicts who made up the bulk of the earliest white settlers. Australian academics have been more willing to tread on egg-shells, suggesting that racism might have become tenaciously inherent in 19th century Australia because of the roughness of the convicts released with minimal constraints into what was often a sheriﬄess terrain, wilder even than the West of American fact or phantasy. As Australia became increasingly a multi-cultural society, racial prejudice was redirected beyond the Aborigines to waves of Asian and other non-European peoples within an increasingly multi-layered social environment (Sherington, 1990). As one wave of immigrants succeeded another, however, it became distressingly evident that the “First Australians” would continue to occupy the lowest level of the national system.

The Ruling of the Modern World (1815-1905)

Reﬂections. In modern times, the international law community has found it diﬃcult to deal eﬀectively with the issues and claims of indigenous peoples. The problems stem both from the ethical deﬁciencies inherent in the post-medieval era of the law of nations and from the conceptual infrastructure reinforced during the “classical” period of international legal development in the 19th century. Arguably, the classical apparatus, which survives today, rests on amoral foundations that have only a ﬂimsy allegiance to modern conceptions of justice (Johnston, 1978). During the post-medieval period of Western history, conscientious theologians wrestled unsuccessfully with the power-holders of the day over the ethics of interaction with the newly discovered aboriginal cultures of the New World. To a large extent, the idea of a “right of conquest” prevailed in practice, qualiﬁed by some regard for humanitarian considerations, as urged by enlightened observers. But it was not constrained by any generally acknowledged sense of legal obligation. The early European contacts with the indigenous peoples of the Americas were made on a continent that was remarkably “empty” and “unoccupied”. These spaces seemed to be an invitation for expansion by the more venturesome rulers of congested European societies. For cultures obsessed by the possession and ownership of land and the resources of the soil, it was the apparent emptiness and accessibility of the fourth continent that implanted the idea of territorial acquisition. To many lawyers who served as “apologists” for the ruling elites of Europe, mere discovery might be suﬃcient for the vesting of title. Imperial capture could be envisaged as a system of reward for the ﬁrst comer, the ﬁrst taker of the risks of overseas exploration and adventure. Fortune could be construed as favoring the brave. Further legal rationale built on the argument that unoccupied lands could not be owned, or even possessed, by anyone. So the commercial purpose of colonial settlement was served by the notion that settlers, as occupiers, became entitled to those empty spaces that were going to waste. The consideration that mere discovery might establish title to “new” lands was strengthened by the later fact of occupation. Further rationalization for imperial capture was provided by the assumption that the European newcomers introduced the only, or at least preeminent, form of “civilization” into a sphere of barbarian or heathen peoples. Whatever need for moral restraint the Christian missionaries invoked in the treatment of aboriginal peoples, they had little reason to discount their spiritual obligations in the “civilizing” process. As the ﬁfth continent opened up in the 19th century, the unoccupied spaces discovered in Australia and New Zealand reinforced the earlier modes of rationalisation. By the early 19th century, moreover, the dominant sovereign states of Europe had formed a consensus on the structure of international law as a system of rules designed to govern relations among themselves and other non-European or nonChristian actors deemed worthy of admission to the inter-state system on a basis of sovereign equality. It was designed to be restrictive. Even today, half a century after the introduction of human rights as the new moral core of world law, international lawyers are struggling with the conceptual structure of their discipline in the eﬀort to deal with the special issues of subjugated indigenous peoples. First, the conditions of statehood within the classical system are not easily met by claimants to indigenous entitlement. The concept of external state sovereignty under

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international law does not accommodate the lesser autonomy achieved or achievable by “indigenous nations” (or “peoples”). The “sovereignty” they might be conceded to possess is not the same kind of legal sovereignty enjoyed by most nation-states on the world stage. On the other hand, there are many “marginal states” or “quasistates” conceded to be subjects of international law, on a theoretical par with fully empowered states, despite their institutional inability to become broadly engaged in the day-to-day aﬀairs of our global institutions (Jackson, Robert, 1990). A line can be drawn between these nominally sovereign “marginal states” and some quasi-sovereign indigenous nations, but it is thin and wavering. The treaties of indigenous nations have always been regarded as falling outside the statist framework of “international agreements” which are recognized as creative of rights and obligations under public international law and subject to the speciﬁc rules of the law of treaties. It is conceded that in the earlier, “pre-colonial”, period of international legal development many “treaties” of diﬀerent kinds were negotiated between diplomatic or corporate “representatives” of nation-states and representatives of corporate or political entities that would not meet the modern legal criteria of statehood. Within domestic legal systems it is generally conceded that many “indigenous treaties” have a legal, as well as moral and political, signiﬁcance, and to that extent have the consequences of a binding instrument. But exactly how such instruments can be treated universally as analogous with international agreements for purposes of enforcement within the international legal order remains contentious. Other rigidities built into the classical system of international law continue to obstruct world community treatment of indigenous peoples’ claims. There may be a moral or political investment in the frequently invoked right to secede, but most culturally complex states are bound to regard this open-ended concept as remarkably dangerous. Hedging it in with a rigorously drafted penumbra of operationally speciﬁc conditions might seem to save the world community as we know it from disintegration, but it is not a formula that inspires conﬁdence in the future of world order. The suggested right to self-determination may sound less dangerously disruptive, but diﬃculties abound here too. Within a number of domestic legal systems, notable successes have been achieved through experiments in “self-government”. At the subnational (or “sub-state”) level of social development, ethnic or cultural minorities – indigenous or otherwise – have found it possible to achieve a measure of autonomy, involving a signiﬁcant degree of detachment from the normal legal or political institutions of the “host state”, without dependence on a claimed right of self-determination in international law. Where minority claims can be satisﬁed in this way, it may not be necessary to add a further layer of entitlement. The ancient use of “Occam’s razor” to shave oﬀ useless medieval concepts comes to mind. Admittedly, however, no host state has so far completed well-designed experiments in self-government to the satisfaction of all indigenous claimants. Ultimately, the standards of reasonableness applied to such claims will be developed in light of the emerging pattern of benevolent responses on the part of the host states. Some claimants may still press for the introduction of new group rights into the abstract language of the international law of human rights (Crawford, 1988), but such rights seem to accrue to “peoples” or “minorities” in general, and not only to

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indigenous peoples or minorities (Nettheim, 1986). Arguably, the best way to press indigenous claims at the global level might be by building on “best practices” at the national level, even although this might seem to diminish the role of text in the international law of human rights. Consent and Cooperation Within the System There is much that is negative in the international history of the 19th century. The Great Powers exerted a great deal of collective and individual muscle in their drive for power, status, territory and wealth. Conquest, annexation, and forcible intervention became common features of their foreign policy, which states claimed to be justiﬁed by considerations of national or imperial interest. The nations that became the wealthiest were, almost invariably, those best equipped to resort to military force or coercive diplomacy. The chief beneﬁciaries of the acquisitive inter-state system of the 19th century shared an interest in controlling access to the arena through the mechanism of recognition. State sovereignty was vaunted as the core principle of relations among the “civilized” nations, but it had little respect as a defense available to weak and dependent nations outside the system. Indigenous peoples, the most vulnerable of all, were oﬀered little hope in the theory of self-determination, which threatened a general unravelling. Yet the negative aspects of the 19th century coexisted with civic ideals, ethical concerns, and demands for reform, not least in those societies that beneﬁtted most from the Realpolitik of the imperialist age. Moreover, cooperation among states was increasingly accepted as a policy likely to promote mutual beneﬁt. Within the framework of states recognized by one another as sovereign and legally equal, the 19th century was a period of steady advancement towards a “cooperative ethic”. Gradually, it became normal to develop relations with other sovereign states through treaties freely negotiated and consented to on the basis of the legal doctrine of state equality. Most international agreements, of any era, are predominantly bilateral. In modern times, such instruments span a wide array of categories of subject matter, virtually the entire spectrum of public aﬀairs. Some areas of international concern – trade, air services, extradition, boundaries, consular aﬀairs, and others – are dealt with mostly through bilateral arrangements or settlements. But the evolution of the international community is reﬂected also in the pattern of multilateral agreements: perhaps more accurately, and certainly more easily. Given the overwhelming volume of bilateral treaty and treaty-like instruments in modern international history, it seems best to concentrate ﬁrst on the more manageable, but still compendious, mass of multilateral agreements. Questions. What was the general pattern of multilateral treaty-making in the period from 1815 to 1905? How much did our ancestors expand that component of the treaty system beyond the 17th and 18th centuries? Which new categories of topics were brought for negotiation in the international arena? In retrospect, what were the most enduring and most signiﬁcant trends? What did these developments portend

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for the future shaping of the organized world community? What were their chief contributions to our contemporary world order? Frequency of Resort to Multilateral Treaty Commitment. The period from 1648 to 1815 began and ended with multilateral treaties of historic importance: those constituting the Peace of Westphalia and the Concert of Europe. Like these famous landmark settlements, most instruments negotiated multilaterally in the intervening years were also concerned with war-and-peace issues. The prevention and consequences of war were by far the chief preoccupation of the European power-holders at that time. This feature of that era is clearly reﬂected in the comprehensive listing of multilateral treaties compiled by Christian Wiktor (1998). This calendar identiﬁes 133 such instruments for that period of 167 years, dealing with 18 categories of topics. By far the largest number are treaties of alliance (53) and peace and friendship (33). If we add those concerned with suspension of arms, armistice and surrender (10), military aﬀairs (7), neutrality (6), administration of occupied territory (1), and trading with the enemy (1), the total number of multilateral war-related treaties is 111: that is, almost 83.5 of the total output of multilateral treaty-making in the era devoted to balance-of-power geopolitics. One is struck, surely, by the futility of the collective treaty-making diplomacy of the early modern era. The record of non-compliance with these “political” settlements did nothing to inspire conﬁdence in the notion that agreements must be respected (pacta sunt servanda). Cynics, focussing on that era – or on the major “demonstrative” or political instruments of all ages – might feel justiﬁed in warning against the “treaty trap” (Beilenson, 1969). However, in the 89-year period that followed (1816-1905), the pattern of multilateral treaty-making was utterly transformed. In that much shorter period, the volume of multilateral treaties listed by Wiktor rose sharply to 477, covering no less that 77 categories of topics: a four-fold increase in the coverage of subject matter. War-related and other military matters are much less dominant than in the earlier period. The total of 76 – peace (24), alliances (22), rules of warfare (10), armistice and surrender (4), neutrality (3), military occupation (3), military occupation (3), evacuation of occupied territory (2), defense (2), military aﬀairs (2), war graves and memorials (1), prisoners of war (1), care of the wounded in the ﬁeld (1), and naval warfare (1) – is still substantial, but it makes up less than 16 of the overall volume of multilateral treaties listed by Wiktor for that period. What impresses the present-day analyst of such data is the emergence of a much more “modern” understanding of the diversity of usages to which the multilateral instrument can be applied. The most frequent of the new applications of multilateral diplomacy between 1816 and 1905 were peaceful matters such as telecommunications (43), river navigation (40), boundaries (19), railways (16), political questions (15), and trade and commerce (14). Most of these treaty-making initiatives were European in origin and direction, but no less than 66 of these instruments involve exclusively Latin American or Pan American groupings of states, providing the foundation for the world’s second oldest regional system of inter-state cooperation. These cooperative arrangements became particularly numerous after the convening of the ﬁrst South American Congress on Private International Law in 1889 and the ﬁrst International

The Ruling of the Modern World (1815-1905)

American Conference in 1890 (forerunner of the Pan-American Union). Far from merely following European precedents, these initiatives in the American hemisphere introduced a number of topics not previously subjected to multilateral diplomacy: for example, international procedural law; international penal law; patents (to protect inventions); industrial property (including trademarks), copyright (to protect artistic and literary works), and other areas of intellectual property; several aspects of private international law (i.e. conﬂict of laws); legal aﬀairs, including judicial procedure; banks and banking; statistics; professions; the rights of aliens; and archeological ﬁnds. Regulating Information Technology. Modern society has been shaped by many forces, but by none more dramatically than the force of invention. Until the 19th century the speed of long-range communication was determined by that of transportation. Up to the post-Napoleonic era, international news and messages travelled by sailing ship, horse, or horse-drawn carriage. Information moved no faster than passengers, baggage or commercial cargoes. The ancients had attempted various non-mechanical forms of long-distance communication. Supposedly, news of the fall of Troy (perhaps in 1084 B.C.) was conveyed by the victorious Agamemnon to his queen Clytemnaestra by an inter-island line of beacons. The Romans, at a later date, operated somewhat similar signal systems to make their empire more “intelligent”. The approach of the Spanish Armada was relayed through the southern shires of England by using a line of “beacon hills”. Fireand-smoke “language systems” were operated in numerous other systems of civilization. But even the best of them were modest achievements by any modern test of eﬀectiveness (Wilson, Geoﬀrey, 1976). The most important accelerator of information was the invention of wire telegraphy: telecommunication through the medium of electromagnetic phenomena, whereby information is transmitted in written, printed or pictorial form. The development of telegraphy in the mid-19th century provided international society with the most rapid method of communication up to the advent of Alexander Graham Bell’s telephone and Guglielmo Marconi’s success in the transmission of underwater signals at the beginning of the 20th century (Pocock and Garratt, 1972). Despite the eminence of some, such as Bell and Marconi, most modern inventions are the work of many minds and many hands. Most of the pioneers are identiﬁable ﬁgures in the history of technology. In the case of telegraphy, however, one of the ﬁrst contributors to that century-long process of improvement was as anonymous letter-writer to the editor of Scots Magazine in Edinburgh in 1753. Signing himself (or herself ) C.M., the modest writer suggested the use of an insulated wire for each letter of the alphabet in order to facilitate transmission of electric currents in the form of language. Thereafter, numerous scientists and inventors in Europe and North America contributed to the development of the technology, not least Charles Wheatstone and William Fothergill Cooke (Hubbard, 1965). Another of note was the “American Leonardo”, Samuel F. B. Morse (1791-1872). Morse was a man of diverse talents. In addition to becoming a distinguished artist, an art teacher, a professor of natural science at Yale, and an unsuccessful politician, he took up the challenge of perfecting a working

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telegraph. Whether he was the ﬁrst to succeed in doing so is still disputed, but his fame as an inventor was assured in 1838 by his creation of the early code that bears his name: an alphabet composed of dots and dashes that lent itself to the electronic transmission of language. After huge frustrations, Morse succeeded in having the ﬁrst telegraph line laid down between Baltimore and Washington, D.C. In 1844. Morse’s inaugural message was self-eﬀacing: “What Hath God Wrought!” (Mabee, 1969). As Mabee notes, Morse’s achievement was a shade ironic, laced with bitterness. For over a decade Americans, proud of their inventiveness, had proved unwilling to invest in “the greatest invention of the age”, even as they pressed westward into incommunicable spaces. They were now belatedly prepared to hail the inventor as an American hero, little knowing that “the direction of the telegraph’s greatest usefulness would be toward breaking down barriers among nations”. By 1862 some 200,000 miles of telegraph lines had been laid down under a worldwide building program. The prodigious growth of the telegraph was due of course to the remarkable speed of communication it made possible, but also to the revolutionary impact it had on the press, the world of commerce, the military and naval services, and law-enforcement agencies. Under the patronage of Western Europe and the United States, the technology spread quickly elsewhere. Chile was the ﬁrst of the Latin American republics to follow the lead (Johnson, John, 1968). China, on the other hand, continued to resist this opportunity to move into the modern world. The implications of the telegraph for international communication were grasped but most nations, especially after the laying of the ﬁrst submarine cable in 1866. Coordinating the building of an international network of telegraph lines was seen to be a challenge that could only be met through an inter-governmental organization. In 1865 the Union Telegraphique Internationale was founded for that purpose, providing the ﬁrst step toward what is now an agency of the United Nations: the International Telecommunication Union (ITU). This agency has grown into an inter-state organization, based at Geneva, with over 100 members (Leive, 1970). Managing International Waterways. The strategic and commercial importance of waterways has been obvious for thousands of years. Often they have been the focus of unwanted attention on the part of ambitious or covetous powers. Not least, they have been vital arteries of commerce, both local and international. Over the ages, engineers have been called upon to extend natural sources of irrigation, drainage and water supply through the construction of canals, apparently from as early as the time of the Mesopotamians. Around 510 B.C. Darius the Great ordered the building of a canal linking the Nile with the Red Sea, the prototype of the Suez Canal; and the earliest Chinese canals can be dated to the 3rd century B.C. For hundreds of years, waterways have raised acute concerns in Europe. The question of the Scheldt as we have seen, became particularly contentious when the Belgian port of Antwerp was deprived of free access to the North Sea by lands on both sides of the estuary controlled by the Dutch. By the 18th century, rivers and lakes were seen to be a source of escalating conﬂict, as new technologies permitted a wider range of watercourse activities, threatening more intensive and more conﬂictual uses. The extent of riparian rights and responsibilities (those of riverbank states and own-

The Ruling of the Modern World (1815-1905)

ers ) needed to be clariﬁed in the law of nations. Neighboring states with a shared river boundary could be expected to deal bilaterally with such issues, but waterways shared by three or more (upriver and downriver) states created problems that called for multilateral regulation, and sometimes even for a regime of international management. The ﬁrst multilateral regime for major international rivers consisted of rules agreed to at Vienna by Austria, France, Great Britain, Prussia and other countries in 1815. The articles of this agreement dealt with: (i) the navigation of rivers which in their navigable courses separate or cross states: (ii) the navigation of the Rhine, perhaps the most important of all rivers from the perspective of international trade; and (iii) the navigation of the Neckar, Main, Moselle, Meuse and Scheldt. No less than thirtynine other multilateral instruments were concluded in the years down to 1905 for the purpose of developing an elaborate regime for the Rhine and the Danube and for adapting rules for other international rivers in and beyond Europe, such as the Elbe (1821), the Pruth (1866), the Congo (1885), and the Whampoa (1905) (Baxter, 1964). Some of these regulatory arrangements, concerned speciﬁcally with water protection, might be regarded as early examples of environmental management (Lammers, 1984). Several signed by Alsace-Lorraine, Baden, Bavaria, Hesse, the Netherlands and Prussia, were exclusively concerned with river pollution: for example, their 1900 convention governing the transport of corrosive and poisonous substances, their 1902 convention on the carriage of inﬂammable substances , and their 1904 regulation (reglement) on the carriage of petroleum products by tanker, all applied to the Rhine. The ﬁrst international lake to be brought under regulation by a multilateral agreement was the Lake of Constance (the famous Bodensee), the second largest lake in the Alps, shared by Switzerland, Germany and Austria. That instrument was concluded by Austria, Baden, Bavaria, Switzerland and Wurtenburg in 1867, revised in 1892 and again in 1899. This neighborhood regime could be regarded as an early ancestor of more modern cooperative regimes for semi-enclosed waters like the Baltic, and of even more recent arrangements for the almost-enclosed Black Sea and the wholly-enclosed Caspian Sea. The most famous international waterway to be constructed in the 19th century was the Suez Canal. The advantages of such a construction, through the narrowest part of the isthmus between Alexandria and Suez, seemed obvious after the invention of the steamship and the resulting expansion of sea-going trade between the East and the West. Studies were conducted by a team of Egyptian, British and French surveyors and engineers, in what was imagined from the beginning to be a multilateral initiative, encouraged by future users like the Peninsular and Oriental (P and O) Steam Navigation Company. To coordinate the process of design and planning an international company was formed in 1846. When Mohammed Said Pasha became Viceroy of Egypt in 1854, he invited his friend, Ferdinand Marie, the Visconte de Lesseps (1805-1894), a distinguished French diplomat who had been interested in the canal project for several years, to become centrally involved. It was de Lesseps’ design, slightly modiﬁed, that received approval and his fund-raising campaign in France that provided more

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than half of the capital required. In 1869 the Suez Canal was oﬃcially opened by the Khedive, Ismail Pasha, in the presence of numerous foreign sovereigns, princes, statesmen, and other notables, including the playwright Henrik Ibsen and the novelist Theophile Gautier. Though the conception of the Suez Canal was clearly international, its international status was initially less than clear. In 1875 Prime Minister Benjamin Disraeli, Lord Beaconsﬁeld (1804-1881), sensing imperial advantage, acquired the major holding of shares in the Canal for the government of Great Britain. With its political as well as ﬁnancial heft in display, the government in London proposed that the waterway should remain unfortiﬁed and open for transit to all ships in war as well as peace, except for a limitation on the time that a belligerent warship could remain within the system. A multilateral declaration along these lines, and on ﬁnancial matters, was concluded by Austria-Hungary, France, Germany, Great Britain, Italy, Russia and Turkey in 1885. After further fractious negotiations, these principles, somewhat modiﬁed, became the basis of a multilateral convention signed at Constantinople in 1888. Diﬃculties remained and Great Britain did not accede to the Convention as a whole until a number of Anglo-French diﬀerences were resolved through a bilateral agreement signed in 1904 (Baxter, 1964). Confronting the Agony of War. Most of us today are so repelled by the hideousness of total war, especially as practised in the 20th century, that we cannot easily come to terms with the ethos of the 19th. War in that era was generally accepted as an institution of international law. Jurists by 1815 had virtually abandoned the notion of “a universal natural law brooding over the states of the world”. Instead, international law was now seen in positivist terms, as “a law between states, crafted by the states themselves wholly for their own use”. Amorally, the science was locked in, as never before, with the practice of states. “It was not [for] the oﬃce of lawyers, on this view, to assume the role of lofty social critics or expanders of ﬁrst principles in the manner of Vitoria or Grotius. Indeed, their task was to look to the technical details of drafting treaties, of discerning trends in customary law, of advising governments and so forth. Success and failure in international law-making were measured by the yardstick of utility, not of morals” (Neﬀ, 2005). In short, as Neﬀ argues, legal ideas about war between 1815 and 1899 evolved without eﬀective resistance, in harmony with the realists perceptions of Thomas Hobbes. The world of states was nasty, brutish, and fundamentally anarchic, consisting of proudly independent and selﬁsh actors, each with its own distinctive set of fears, interests, and ambitions. It was now considered legitimate that sovereign states, justiﬁably concerned about survival, might resort to arms to protect whatever was perceived to be a matter of “vital interest”. Reshaping the legal idea of war was a task that had to be undertaken within the arena of inter-state conference diplomacy. Suppressing Slavery. As we have seen, anti-slavery sentiment was taking root in the late 18th century. The literati and philosophes of the Enlightenment had declaimed against the barbarisms of the slave trade, and rejected the idea that the status of servitude was acceptable in a free and democratic society (Lafontant, 1979). Especially in

The Ruling of the Modern World (1815-1905)

Britain, the Quakers, the Moravian Brethren, the Puritans and other religious organizations had proved their capacity to mobilize public opinion against both practices (Kingberg, 1926). It had been demonstrated that tyrannical ideas of ancient origin could be cast oﬀ entirely, replaced with enlightened public policy and legislation. Progressive states like France and Great Britain could overcome their traditional enmity and agree by bilateral treaty to prohibit slavery in all their territories. It was in the 19th century, however, that the greatest successes against slavery were achieved, in a new era when international policy could be developed in the arena of multilateral conference diplomacy. Between 1814 and 1885 this eﬀort was directed mainly against the slave trade, with the same sense of priority reﬂected in progressive national legislation in several countries. As the dominant naval power, Great Britain found it possible to attack slavery eﬀectively on the high seas by resort to “forcible analogy”. International law in the early 19th century countenanced the arrest, search and seizure of foreign ships at sea in two situations that could be assimilated to the running of slave ships: the misuse of the sea for piratical purposes and the running of a legal blockade or the carriage of contraband of war. If these two doctrines justifying the use of force at sea could be extended to the transportation of slaves, it was argued, then the ﬁrst step toward the international suppression of slavery could be taken. It was a strategy that could work only if supported by the leading naval powers. Morality alone would not be enough. There was no guarantee that the naval powers could be persuaded to combine their resources against the slave-owners. The Vienna Congress in 1815 went beyond mere prohibition, calling for suppression of the slave trade, but provided no strategy for the implementation of this new policy of the European community. The tone of moral outrage was tempered by considerations of “cultural relativism”: regard for “the interests, the habits, and even the prejudices” of the subjects of the ﬁve signatory states (Austria, France, Great Britain, Prussia, and Russia). So no time-frame could be set for achieving the abolition of the slave trade. Great Britain seemed the most determined to pursue the policy of suppression, but in 1817 the English High Court of Admiralty held that British warships had no legal right to stop, search and seize foreign slave-ships on the basis of the 1815 Declaration. The British government was forced, therefore, into a succession of separate treaties with Spain, Portugal, Brazil, the Netherlands, the United States, and several Spanish American republics. These bilateral instruments created mutual and reciprocal rights of search and seizure of suspect vessels in designated treaty waters, and also established mixed or joint commissions of a more or less permanent nature to adjudicate upon vessels seized on suspicion of illegal slave-trading. Between 1819 and 1871, these tribunals were responsible for the condemnation of over 600 slave vessels and the liberation of nearly 80,000 slaves (Bethell, 1966). After the 1920’s most of those captured were destined for the sugar and coﬀee plantations of Brazil, Cuba and Puerto Rico. The British agreements with Portugal, Spain and the Netherlands went farthest in agreeing that at sea – outside ports and roadsteads and beyond the cannon – range of shore batteries, which was presumed then to determine the extent of the “territorial sea” – warships of either party, properly warranted, might stop and search suspect vessels of either, and detain them if the suspicions proved well founded.

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This system was less than wholly successful. The reciprocal nature of these treaties was based on myth: only the Royal Navy had the capacity to maintain anti-slavery patrols, and the slave trade was no longer conducted on British vessels. Some 95 of the arrests were made by British warships. Moreover, the commissions were given jurisdiction only over the ships seized. The owners, masters and crews of condemned vessels had to be handed over to their own authorities for trial. Despite numerous seizures, the slave trade continued for decades because of the enormous proﬁts available. Individuals in the line of beneﬁt were willing to risk arrest by the British Navy, since their release often permitted them to re-engage in their unscrupulous but lucrative trade. So another eﬀort was made to use the conference arena to suppress the African slave trade. Under the 1841 Treaty of London, signed and ratiﬁed by Austria, Great Britain, Prussia and Russia, and signed but not ratiﬁed by France, a collective Great Power commitment to mutual search at sea, under warrant, was entered into with a view to the “ﬁnal abolition” of the slave trade. A list of cruisers appointed for that purpose by each of the parties was to be circulated to each of the other parties. Speciﬁc procedures for search and detention were set out in annexes to the Treaty, and the main provisions included criteria for determining whether a ship was ﬁtted for the carrying of slaves. Proceedings against the vessel were brought under ﬂag state jurisdiction; and those against master, crew and cargo would be taken before the tribunals of the country to which they belonged. In cases of conﬁscation, however, proceeds of the sale of the vessel would accrue to the conﬁscating state. This combined operation broke the back of the Atlantic slave-trade, and led eventually to bans on slave-holding following the British prohibition of 1833. France followed suit in 1848, Portugal (incrementally) in 1858, the United States (after the Civil War) in 1865, Spain (for Cuba) in 1870, and Brazil in 1871. Essentially, then, this was a victory at sea, but as the transatlantic trade in African slaves diminished, attention shifted to the Indian Ocean, where the traditional Arabdirected slave trade to the Near and Middle East was expanding. Bilateral agreements and mixed commissions were relatively ineﬀective in blocking these routes. Once again, it was necessary to use multilateral treaties to reduce the problem in 1885 and 1890. The Brussels Conference held in 1890 was described by Lord Salisbury as the ﬁrst in world history to meet “for the purpose of promoting a matter of pure humanity and goodwill”. The General Act it concluded was the most comprehensive eﬀort ever made to combat slavery. It consisted of almost one hundred articles, and it was signed by ten states of Europe as well as Congo, Zanzibar, Persia, Turkey, and the United States. Vessels suspected of engagement in the illicit trade could be stopped and searched in non-coastal waters of the Indian Ocean, including the Persian Gulf and the Red Sea. An international bureau, established at Zanzibar for the collection of information on the suppression eﬀort, continued to operate down to the outbreak of the First World War in 1914 (Miers, 1975). Unfortunately, the practice of slavery has proved to be exceptionally tenacious in certain regions, even in the face of universal condemnation under the League of Nations and in the decades since then, but the 19th century can be credited with the

The Ruling of the Modern World (1815-1905)

most eﬀective “break-through” diplomacy in slave suppression in the international arena (Fischer, 1950). The Bilateral Treaty System. The pattern of multilateral treaty-making, then, offers a mirror on the evolution of the international inter-state community. As we have seen, the pattern between 1816 and 1905 was wholly diﬀerent from the earlier pattern between 1648 and 1815, revealing new trends and development. It is bilateral agreements, however, that have always made up the bulk of internationally negotiated instruments. Increasingly, over the full stretch of modern world history, the output of bilateral treaty-making has become the fabric of international society. The most conspicuous feature of bilateral treaty-making is, of course, its immense volume. Whereas the 1648-1815 period generated 133 multilateral treaties of one sort or another (Wiktor, 1998), the ﬁrst ﬁfty years after Westphalia (1648-1698) alone produced almost 600 bilateral instruments according to the compilation of Clive Parry (1979). This ﬁgure is estimated on the basis of a generous deﬁnition of what constitutes a “bilateral” transaction, at a time when numerous settlements and arrangements were concluded by the Holy Roman (i.e. German) Empire on behalf of numerous quasi-sovereign, constituent polities. The total number of bilateral instruments for the whole 167-year period listed by Parry exceeds 2,500. The annual output of bilateral treaty-making in the 1816-1905 period is even more prodigious: in 1816 alone ﬁfty-one; in 1869 seventy-six; and in 1903 one-hundred-and- sixty-eight. Treaty practice in the 19th century was also highly diverse as well as frequent. Its diversity can be measured by parties, appellation, subject matter, and function. As to parties, many kinds of non-state entities in the early modern era (1648-1815), as in even earlier times, were accepted as having the capacity to conclude “treaties” with state (or non-state) partners. In that period treaty parties included such actors as personal sovereigns, princes and princesses (in prospect of matrimony), cities, bishoprics, military or naval commanders (mandated to enter into binding agreements in the ﬁeld with enemy counterparts or native chiefs), principalities belonging to the Empire, and cantons belonging to the Swiss Federation. In the 19th century, we see a gradual decline in the number of non-state, non-sovereign or semi-sovereign treaty parties, as formal treaty-making comes to be viewed as the province solely of fully sovereign states, and as international law jells as a normative system governing the relations only between “subjects” possessing all the attributes of statehood. The name given to internationally negotiated instruments – their appellation – became increasingly ﬂexible in the 19th century. In the year 1860, for example, of the bilateral instruments listed by Parry, 28 were designated as “conventions” (a term now used mostly for multilateral treaties) and 25 as “treaties”. Only ﬁve (5) in that year were called “agreements”, which is now, in the early 21st century, the most common of all designations for formal, legally binding ,bilateral instruments. Only a few were given other designations: for example, (joint) declarations (7), exchanges of notes (2), and additional articles (2). In the year 1903, forty-three years later, the method of appellation has become looser, and more modern. “Conventions” (52) still lead the ﬁeld, but “treaties” (30) have yielded second place to “agreements” (35). “Protocols” (19), “exchanges of notes” (15), “declarations” (8) and “arrangements: (6) seem to oﬀer

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a glimpse into a more informal future, but already we sense a descent into a world of terminological chaos. By the end of the 19th century we see the fading of any hope that sovereign states could be disciplined in the use of treaty appellation to limit certain impressive names to certain impressive purposes. More can be gleaned from the pattern of use. As in the case of multilateral treaties, bilateral instruments of the 19th century reveal a proliferation of topics, as more and more subject areas are discovered to be amenable to consensual arrangements within the international community. Parry shows that “peace, commerce and navigation” (or a similar conjunction) was the favorite subject matter of bilateral treaty-making in the year 1860 (with 13 instruments), followed by extradition (9) and peace, amity or armistice (5). In that year bilateral treaties were also devoted to more than a dozen other topics: for example, telegraph communication and river or lake navigation – as in the case of multilateral instruments – and also claims, debt, copyright, railway, territorial issues, cabotage, customs duties, postal communications, consular relations, and other matters. Diversity of subject- matter is even more apparent in the bilateral instruments concluded in 1903. No less than 36 topics are covered. The most frequent use of bilateral agreements in that year (22) was to arrange arbitration or alternative procedures for the settlement of claims and other disputes – reﬂecting clearly the arrival of international adjudications as a familiar feature of modern inter-state relations. Almost as numerous (19) are the bilateral agreements concluded in 1903 for the purpose of postal communications. Taken with those other instruments concerned with telegraph (8) and telephone (2), arrangements, these are mostly spin-oﬀs from multinational treaties in those sectors. They provide the clearest evidence of the impact of communications technology on an increasingly globalized society. The networking pattern includes also ten railway agreements. Commercial and ﬁnancial matters were, of course, also a common topic for bilateral treaty-making in 1903, but economic inter-state transactions still belonged very largely to the domain of bilateral diplomacy. The arrival of modern treaty practice is further evidenced by the growing number of bilateral arrangements related to trade-marks (industrial property), patent, and copyright (9) in that year, and to boundary delimitation or delineation issues (7). The growing diversity of bilateral treaty practice in the 19th century might seem, in retrospect, to have justiﬁed a diﬀerential approach to the concept of bindingness. After all, the functions served by these widely diﬀerent categories give rise to quite dissimilar expectations. Treaties of peace, friendship, and alliance, like those concerned with the establishment of diplomatic relations, are intended to serve a political (or symbolic) purpose. They are “demonstrative” in function, designed to dramatize or reaﬃrm the signiﬁcance of the relationship between the parties. They are not essentially concerned with the creation of strictly legal obligations of a kind whose “bindingness” could be tested through eﬀorts to secure a judicial remedy in the event of a breach. They may have the “spirit”, but not the “letter”, of the law. They belong to the theatre of politics, rather than to the court of law. Quite distinct are those agreements designed to be “resolutive” of an issue, usually in a ﬁnal (dispositive) and long-lasting, if not permanent, sense, such as the typical land boundary treaty settlement, and most agreements devoted to other territorial

The Ruling of the Modern World (1815-1905)

matters (e.g. cessions and leases), neutrality issues, claims settlements, nationality disputes, and arbitrations. In sharp contrast to “demonstrative” treaties, “resolutive” settlements produce strictly binding outcomes that are supposed to withstand any kind of legal challenge, even in the courtroom. A growing number of bilateral agreements in the second half of the 19th century are neither “demonstrative” nor “resolutive”. Most, concerned with the application of regulatory arrangements (e.g. telegram, telephone, postal communications, and railways), are designed to facilitate the administration of inter-state services. These “administrative” agreements are concerned with bureaucratic operations. Arrangements for banking, ﬁnancial matters, customs duties, consular relations, intellectual property, and river or lake navigation are other examples of eﬀorts to strengthen inter-bureaucratic coordination within an increasingly eﬃcient system of inter-state regimes and organizations that would continue to build up throughout the 20th century. Still barely in evidence in the ﬁnal years of the 19th century are examples of the fourth category of “distributive” agreements that would assume an overwhelming presence in the following century. By 1905 the most conspicuous kind of distributive bilateral treaty-making was the fairly frequent recourse to “commercial” matters, but the central involvement of the state in the promotion and development of economic and cognate relations with other countries had not yet become a fully accepted feature of modern society. It was too early to envisage the role of treaty-making in a future age, when it would be taken for granted that governments are responsible for facilitating, coordinating and regulating the ﬂow of goods and services in the international market-place, viewed as national resources, scientiﬁc and cultural as well as economic. No scheme of classiﬁcation is entirely satisfactory. Complex reality eludes capture within a conceptual framework of mutually exclusive categories. In the 19th century, some of the more important treaties were “mixed” in function. A few major treaties of “peace, friendship, commerce and navigation” (and the like) were a distressingly eclectic combination of two or more of these four functional types. Yet it seems clear, even as we look back on the state of treaty-making at the end of the 19th century, that the diplomatic community was already moving into an age of specialized bureaucracy, when it would become administratively convenient – perhaps even necessary – to diﬀerentiate sectors of inter-state interest and concern in functional terms (Johnston, 1997). Confronting the Agony of War. Most of us today are so repelled by the hideousness of total war, especially as practised in the 20th century, that we cannot easily come to terms with the ethos of the 19th. War in that era was generally accepted as an “institution of international law”. Jurists by 1815 had virtually abandoned the notion of “a universal natural law brooding over the states of the world”. Instead international law was now seen in positivist terms, as “a law between states, crafted by the states themselves wholly for their own use”. Amorally, the science was locked in, as never before, with the practice of states. “It was not [for] the oﬃce of lawyers, on this view, to assume the role of lofty social critics or expanders of ﬁrst principles in the manner

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of Vitoria or Grotius. Indeed, their task was to look to the technical details of drafting treaties, of discerning trends in customary law, of advising governments and so forth. Success and failure in international law-making were measured by the yardstick of utility, not of morals” (Neﬀ, 2005). In short, as Neﬀ argues, legal ideas about war between 1815 and 1899 evolved, without eﬀective resistance, in harmony with the realist perceptions of Thomas Hobbes. The world of sovereign states was nasty, brutish, and fundamentally anarchic, consisting of proudly independent and self-willed actors, each with its own distinctive set of fears, interests and ambitions. It was now considered legitimate that sovereign states, justiﬁably concerned about survival, might resort to arms to protect whatever was perceived to be a matter of “vital interest”. Reshaping the legal idea of war was a task that had to be undertaken within the arena of inter-state conference diplomacy. Today we have the advantage of knowing how the “law of war” came together in the 20th century, as a dual system consisting of two principal components: the codiﬁcation of customary rules and customs regulating warfare (the “Hague Rules”) and the consolidation of treaty-based guarantees of humane treatment for the combatant and non-combatant victims of war (the “Geneva Conventions”). It sounds simpler and neater than it really is. There is no single line of development to trace through the 19th century. In reality there was instead a rather confusing succession of crosscutting initiatives, both “public” and “private”, that reﬂected a mix of interests and concerns, of values and policies. Not least, the treatment of war was a matter of contention between the “tower” and the “arena”. Within the tower, scholars have demonstrated numerous ways of describing or explaining the causes and consequences of war. In reviewing the literature, Quincy Wright (1965) suggested that most theories range over – but weight diﬀerently – four principal kinds of factors: technological, socio-political, ideological-behavioral, and legal. He doubted that war can be eliminated entirely, seeing it as the extreme at the negative end of the inter-state relationship, which varies from cordial, friendly, and correct to strained, ruptured, and hostile, involving “a very large-scale resort to violence”. Like most specialists in “peace research”, he was reluctant to take the view that war was “natural” or “inevitable” in any set of circumstances, but history does not reveal any course of events that is bound to lessen the risks of war. In any event, the “pattern” of warfare keeps changing. Up to the Napoleonic era, war was a frequent but limited phenomenon. Hostilities were conducted by small professional armies. Many of the soldiers were mercenaries. Fighting was a dangerous but widely accepted way of earning a livelihood, of living, and often surviving, a life of adventure. They were not much inﬂamed by the call of patriotic duty. Desertion was a common response to inadequate working conditions. Most oﬃcers, on the other hand, were patriotic aristocrats who respected some, at least, of the medieval code of chivalry. For them, military (or naval) service was an honorable profession for gentlemen, ranking somewhere between the clergy and the practice of law. Ordinary citizens were not involved as combatants. The distinction between ﬁghters and non-ﬁghters was clear. Later, Carl von Clausewitz (1780-1831), the military analyst, would refer contemptuously to the “play war” (Kriegsspiel) of that era. For him, modern war was an ex-

The Ruling of the Modern World (1815-1905)

tension of politics, but he drew back from suggesting that aggressive foreign policy might lead to “total” war (Leonard, 1967). Though a great admirer of Napoleon the soldier, Clausewitz, as Gatzke insists, was “deeply opposed to Napoleon the conquering dictator” (Clausewitz, 1942). Before the 19th century, war was limited in other ways. Until the last two decades, the 18th century was essentially a non-industrial age, still innocent of the great and widely spread harms that could be inﬂicted by industrialized warfare. Moreover, the practice of war was also limited, to some extent, by legal theory, by traditional rules or customs of the law of nations, as described by Hugo Grotius and the jurists of succeeding generations. Even the objectives of pre-modern or early modern war were limited. Territory, or wealth in some other form, was often at stake, but there was rarely a compelling reason to deal harshly with the enemy, who were only doing their duty, on the wrong side. The “gentlemanly” nature of war in the 18th century had not deterred idealists from calling for its elimination. Indeed its image as a manly sport may have kept alive the belief that organized violence along such lines might not be inherent in the human condition. The utopian quest for a permanent peace continued (Phelps, 1930). In the ethics of the Enlightenment, the goal of preventing unnecessary wars ranked high, reinforced by the atrocities committed during the Napoleonic Wars and by the Emperor’s personal campaign against civilian populations in accordance with his concept of “total war” (Lewis, 1962).. Yet very few in the early 19th century felt that paciﬁsm was a realistic endeavor. Those who advocated total disarmament were generally made the object of ridicule. Apart from the peace activists, who had relatively little credibility in the eyes of realists, sceptics and cynics, there were other kinds of late 19th century idealists deeply concerned with the “problem of war”. The idea of restraint in war had been reinforced by unnecessary Prussian severity against French troops and civilians in the FrancePrussian War of 1870-1871 , creating an image of German barbarism that would not be easily shaken oﬀ during the ﬁrst half of the 20th century (Best, 1979). Increasingly during the 1890’s, four kinds of idealists made strong eﬀorts to use the arena of collective treaty-making diplomacy for the more modest purposes of limiting warfare. The ﬁrst group – mostly lawyers – gave priority to the goals of modernizing and codifying the customary laws of war that had been evolving in state practice for centuries. The second group, sceptical of the reach of the rule of law, focussed on the strategy of war, calling for a general policy in favor of reducing the scale of war by limiting the level of armaments and military personnel. The third category, pragmatists and technicians, felt that the best and most practicable way of scaling down the horrors of war was by prohibiting or limiting the use of the most destructive and harmful of weapons. The fourth of the most conspicuous modes of idealism against war concentrated on the need to aﬀord protection to the combatant and non-combatant victims of war. All four of these groups interacted with one another, and with the paciﬁsts, on an occasional basis throughout the 19th century, and ﬁnally, in 1899, they all converged in the arena at the ﬁrst World Peace Conference. This famous meeting was called for, in 1898, in a year that had seen the death of Prince Otto von Bismarck (1815-1898). The Iron Chancellor’s policy of “blood and

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iron” had pulled together the fragmented German-speaking states, principalities, and cities that had formed the framework of the Holy Roman Empire. The long-suppressed nationalism of the German peoples had found a single vehicle that could assert their common destiny at the heart of Europe (Eyck, 1968). Italy too had ﬁnally jelled as a nation-state, mindful of its own long descent from the imperial glories of ancient Rome . The arrival of these two talented nations had re-shaped the structure of Europe, and threatened to sharpen the continent’s impact on the rest of the world. By then, also, the United States had ﬁnally emerged as a potential world power, burdened with a leadership divided between isolationist and internationalist sentiments, but possessing a demonstrated capacity to take advantage of weaker countries and declining empires. Japan, too, was beginning to rise as a naval power with all the acquisitive instincts of a European empire. The system of world rule was about to be subjected to its severest test. The First Peace Conference at The Hague was a watershed event in several respects. First, it was a more genuinely international gathering of Powers than any that preceded it. In addition to attracting seventeen European countries (Belgium Bulgaria, Denmark, France, Germany, Great Britain and Ireland, Greece, Italy, Luxemburg, the Netherlands, Portugal, Romania, Russia, Serbia, Spain, Sweden and Norway, and Switzerland), the conference was attended by seven non-European nations (China, Japan, Mexico, Persia, Siam, Turkey, and the United States). The ﬁrst appearance of the Chinese at a conference of such political magnitude was a matter of considerable curiosity, but by far the greatest impact of the “outside” world was that of the Americans. Second, it was the ﬁrst occasion for a major diplomatic conference to be opened – at least partly – to the media, and thus to the general public. War-related issues had captured popular interest and attracted editorial comment around the world. The age of secret conference diplomacy was dying, but the measure of transparency introduced let in the cynics, who scoﬀed at the naivety of the would-be disarmers, who had conveyed the image of a paciﬁst enterprise despite the absence of the term “disarmament” in the oﬃcial documentation on the table. Third, those in attendance were no longer just the veterans of privileged, old-world, aristocratic diplomacy, but a varied assortment of professionals and amateurs: politicians, scholars, lawyers, peace activists, and military and naval experts, as well as specialists in the nuances and procedural devices of conference diplomacy. It was an unfamiliar mix, a chemistry that seemed combustible. Finally, the First Peace Conference placed The Hague on the map as a world capital in matters of importance to the development of international law. It gave the Netherlands an unprecedented chance to oﬀer itself, the birthplace of Hugo Grotius, as the permanent host for what would become a growing number of important legal institutions designed for the beneﬁt of the world community (Eyﬃnger, 1999). The First Peace Conference was convened as the forum for discussion of eight topics proposed in a document called the “Second Circular Letter” by the Russian Foreign Minister, Count Mikhail Nikolaevich Muraviev (Mouravieﬀ ) ( 1845-1900), following the “Prescript” of Czar Nicholas II. Historians have diﬀered on the role of Czarist Russia in the game of European Realpolitik, but most have conceded the existence of an idealistic strain in the genetic make-up of the Romanoﬀ family. In 1814

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the czar’s ancestor, Alexander II, was not yet a complicated man. He may, for a time, have genuinely sensed impending disaster in the build-up of armaments by those leading Powers with less-than-friendly relations with Russia. Though ambitious for the future of his country, Alexander may also have doubted its capacity to compete for the spoils of war. What that young and idealistic ruler envisaged in 1814 was a broad-based collective moral commitment to peace by limiting the size of national standing armies and the scale of armaments. Despite the whiplash of scorn from older and supposedly wiser statesmen like Metternich and Castlereagh, it might be small-minded for us today to disparage Alexander’s vision. His proposal was to determine “the positive rights of nations, assure the privilege of neutrality, assert the obligation of never beginning war until all the resources which the mediation of a third party could oﬀer have been exhausted, having by this means brought to light the respective grievances, and tried to remove them”. Despite the shattering of Alexander’s dream of a league of European nations to enforce the laws of war and to practice preventive diplomacy, the Russian ideal of a general limitation of war persisted in the Romanoﬀ family. In 1899 the ﬁrst of Mouravieﬀ ’s topics suggested in his “Second Circular Letter” was a proposed limitation of arms and a reduction of military budgets. Ornate orations ensued, strewn with” all the ﬂowers of rhetoric”, but at once it became obvious that the delegates at The Hague were hopelessly divided over the issue of arms limitation. None was more forthright in denunciation than the formidable Admiral Sir John A. Fisher (later Baron Fisher of Kilverstone)(1841-1920). Before the conference convened, Fisher’s political superior, the First Lord of the Admiralty, had warned the world that it was his government’s intention to maintain its naval supremacy by keeping its naval armament at least 60 ahead of those of any other nation (Choate, 1913). He may have wished to save the Kaiser from unnecessarily costly expenditures. Among all the delegates assembled at The Hague, Fisher was the most eﬀective of the imperialist obstructionists. In the words of Admiral William S. Chalmers, Fisher was “beyond question a genius and one of the greatest ﬁgures of his age. He had no fear of politicians, and although not good in presenting his case logically, usually got his way by the strength of his personality, expressing himself in a series of verbal explosions often coloured with biblical analogy”. Each night Sir John danced into the small hours of the morning, only to rise refreshed to defend the prerogatives of the British Empire. He was an impressively credentialled commander, the mastermind behind the re-building of the Royal Navy. He was bluﬀ and amiable, but “sharp as a tack” – a phrase that might have been coined to capture the incisive admiral. He had no capacity for tolerating dissenters to his philosophy that British might was right. As an advocate of the benevolent uses of imperial force, Fisher had a ready ally in the almost equally formidable Captain Alfred Thayer Mahan (1840-1914) of the United States Navy. Mahan was the world’s leading exponent of the theory of naval power (Mahan, 1890), and an admirer of Britain’s success in the acquisition and maintenance of world power (Herman, 2004). Together, Fisher and Mahan were a rock on which the First Commission at The Hague was bound to founder. AngloAmerican professionals ensured that the arms limitation debate would be swallowed

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up in a “quicksand of technicalities” – in the manner of contemporary conference diplomacy – but, in larger truth, the ethos of the Conference was simply not receptive to conventional arms limitation. That particular brand of idealism failed, as it would continue to do for almost another century. What of the legal idealists calling for a codiﬁcation of the laws of war? Such rules or customs had, of course, been evolving for hundreds of years. The Grotian model of the law of nations had had at its core a corpus of fairly speciﬁc laws of war that were widely construed in Europe to be binding on “civilized” nations (Friedman, 1972). It had long been recognized within the “system” that belligerents – parties to a war – had certain rights or prerogatives. A balance had been struck between these entitlements and the rights of neutrals. A manifest distinction between combatants and non-combatants had become manifest. Generations of jurists had oﬀered opinions on the legal eﬀects of war on treaties and contracts. Numerous judges of national or local tribunals had adjudicated on prize and other claims arising out of violent circumstances at sea or on land (Risley, 1897). In that “transactional” phase of the history of international law, it was deemed important to clarify the legal impacts of war on the possession of wealth. In the 18th century, much attention had been given to the making, the maintenance, and the unmaking of peace treaties. Yet this corpus of rules was proving to be a shaky creation, constructed on shifting sands. The nature of war was changing. Proposals for the codiﬁcation of the laws (and customs) of war had been made by individual jurists in Europe for generations, but the ﬁrst government to bring it into the arena was the United States. At the outbreak of the Civil War, President Lincoln commissioned Francis Lieber (1800-1872) of Columbia College in New York to draft a code of the laws of war. Lieber was a German-born scholar, whose liberal sentiments had forced him into exile in the United States, where he became a citizen by naturalization (Scott, 1916). Yet he remained in correspondence with the leading European jurists, including the Swiss publicist Johann Kaspar Bluntschli (1808-1881), and had much to do with the creation of the Institut de Droit International in 1873 (Root, 1913). Lieber’s text was revised by a committee of US Army oﬃcers and promulgated by Lincoln as “General Order No. 180”. The forces of the Union were directed to conduct hostilities against the Confederacy in accordance with Lieber’s Code (Friedman, 1972). It was “complete, humane and comprehensible to commanders in the ﬁeld”. In 1874 the First International Conference on War Law was convened at Brussels to discuss a draft based on Lieber’s 157 Articles. A Declaration consisting of 56 Articles was “adopted” by the conference, but an oﬃcial consensus among the governments failed to materialize, despite the existence of the Oxford Manual that had been produced by the private Institut de Droit International on the rules of warfare. In 1899 the principal text consulted by the government delegations was the US Army’s Military Manual, which had incorporated Lieber’s provisions. The US Manual included many aspects of the evolving law of war, far beyond the scope of the Oxford Manual and the Brussels Declaration. For example, there were provisions on martial law, military necessity, retaliation, enemy property, protection of persons, punishment of crimes against enemy inhabitants, deserters, the treatment of prisoners of war, hostages,

The Ruling of the Modern World (1815-1905)

booty, spies, safe-conduct, captured messengers, ﬂags of truce, exchange of prisoners, armistice, insurrection, and civil war. Debate in the Second Commission on several of these topics proved to be lively. It was argued, for example, that the soldiers of invading forces did not deserve to be mowed down by defending snipers “in a cowardly manner”. Resistance groups should be required to carry arms openly in the traditional manly fashion. If distinctive military insignia were not displayed, reprisals should be expected. The best way to curb the occasional licentious conduct of invading forces was to restrict the involvement of civilians. A Convention – the Convention with Respect to the Laws and Customs of War on Land – was passed, based on the Brussels Declaration, but within the restricted time-frame of the Conference, it was not possible in 1899 to deal thoroughly with the entire list of issues presented. It was Lieber’s Code, however, that later became the textual foundation of the so-called Hague Rules on the laws of war, which would be accepted at the Second Peace Conference in 1907, standing out as “a monument to the military conscience” (Eyﬃnger, 1999). Another eﬀort at The Hague in 1899 was directed at the prohibition of certain methods of conducting warfare. There have always been attempts to ban new weapons that seemed unnecessarily destructive or harmful. Pope Innocent III forbade Christians the use of certain weapons against one another: the crossbow or arbalest, and siege weapons for projecting missiles such as the ballista. In 1139 the Second Lateran Council of the Christian Church denounced the crossbow as “deadly and odious to God”. Users of the ﬁrst ﬁrearms were shown no mercy when captured (McDougal and Feliciano, 1961). Similarly, quarter was denied to those who ﬁrst employed the bayonet, “the most terrifying of all the weapons introduced during the age of limited warfare” (Nef, 1950). Many treaties had been signed for the purpose of proscribing the most horriﬁc weapons as “cruel” or “inhuman”. Many military men of honor in the 19th century accepted that the only legitimate purpose of war was to weaken the enemy by disabling the greatest possible number of men, not by inﬂicting the worst atrocities. Some, however, like Fisher, derided the idea that war could be humanized. The famous warrior was not opposed to peace, and he actually favored arbitration as an alternative means of settling inter-state disputes. It was an experiment worth trying. But any eﬀort to limit war by an arbitrary selection of weapon was futile and self-defeating. “If I’m in command when war breaks”, Fisher warned, “I shall issue my orders: ‘The essence of war is violence. Moderation in war is imbecility. Hit ﬁrst, hit hard, and hit anywhere’” (Bacon, 1929). The ﬁrst inter-state eﬀort to rule out certain weapons was the 1868 Declaration of St. Petersburg, a response by sixteen signatory states to a Russian proposal to prohibit the use of the new “expanding” bullet – the “dumdum” bullet, a Russian invention. It was agreed that “the only legitimate object which states should endeavor to accomplish during war is to weaken the military force of the enemy”. For that purpose, it was “suﬃcient to disable the greatest possible number of men”. That object would be exceeded by the use of arms which “uselessly aggravate the suﬀerings of disabled men, making their death inevitable” (Friedman, 1972). The prohibition of “certain projectiles” was thought to prevent or discourage violations of the norm against weapons likely to cause “unnecessary” harm. Critics have

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argued that such a general criterion is too vague to be workable, and others have insisted that arbitrary prohibitions are bound to fail if they fail the test of military logic. The rationalistic position is that stress should be put on the banning of weapons that cause suﬀering “excessively disproportionate to the military advantage accruing to the belligerent user” (McDougal and Feliciano, 1961). Throughout the 19th century, the logic of military eﬃciency had not persuaded the community of nations to outlaw any weapon that was seen to be of “substantial net military beneﬁt”, and the prohibitionist ethic had also been unpersuasive despite the increasingly apparent grimness of modern warfare. Yet many professional soldiers in 1899 recognized the appalling scale of slaughter now technologically inherent in an all-out war. Many in military and naval service agreed with the idealists that a new diplomatic eﬀort was needed to regulate warfare through certain measures of arms control. Encouragement could be found in recent advances toward an organized world community. If multilateral treaties and intergovernmental agencies could be deployed to promote and regulate the new technology of telecommunications, why could the same diplomatic methods not be applied to regulating the most threatening of technologies: the weapons of modern invention that seemed to be bringing civilization to the brink of catastrophe? Even if war could not be stopped, could it not at least be subject to some degree of humanitarian constraint? Advancing far beyond the modest humanitarian purpose of the St. Petersburg Declaration was the goal envisaged by the youthful Czar Nicholas II, a mild but stubborn sovereign who was destined to become the last of the Romanoﬀ line. Inspired by “his love of peace”, like his equally youthful ancestor in 1814, Nicholas put his trust in the world’s ﬁrst peace conference as a forum for bold arms control negotiations. Accordingly, Mouravieﬀ ’s list of topics for the conference included three categories of prohibitions: (i) any new kind of ﬁrearms, and of more powerful explosives or powders for riﬂes or cannon; (ii) the use of projectiles or explosives from balloons; and (iii) the use of torpedo boats, plungers and “other similar engines of destruction”. The Powers were already preparing for undersea warfare on the ground that it was no less justiﬁable than existing warfare on land or on the surfaces of the seven seas. So the third of these proposals was rejected. “Expanding bullets”, it was pointed out, could not be easily distinguished from exploding or incendiary bullets, but a Declaration was adopted by all nineteen signatory states that prohibited the use of that kind of weapon. The Powers were also beginning to foresee the possibilities of aerial warfare, but another Declaration was agreed to for the purpose of outlawing bombardment from balloons. Moreover, a third Declaration was signed to prohibit the use of “asphyxiating gases” (Friedman, 1972). For many experts in 1899, the prohibition of certain weapons was not a realistic approach to “humanizing” war, given the continuity of the process of invention. Much more horriﬁc engines of destruction would have to be created before the world community truly recoiled in revulsion. Yet optimists could take consolation in the placement of the ethic of arms control on the world’s agenda, and the ﬁrst step had been taken by all the leading Powers to prohibit certain modes of warfare. Of the various approaches to the regulation of warfare attempted at The Hague in 1899, it was, ironically, the “Geneva law” component of Mouravieﬀ ’s package that

The Ruling of the Modern World (1815-1905)

provoked the least resistance. The reason was emotional. Everyone remembered the publicized horrors of the Crimean War. All 26 delegations agreed to adapt the Geneva Convention of 1864 to the conditions of maritime warfare (Friedman, 1972). The cause of success in “humanizing” warfare had its origin in the context of the “Eastern Question”: who would ﬁll the vacuum created by the crumbling of the Ottoman Empire? The Vienna settlement of 1815 had not come to terms with this question, which involved a tangle of political and diplomatic problems embittered by racial, religious and cultural animosities. Gradually, it became obvious that the Czar was the most likely beneﬁciary. Western Europeans, long obsessed by the alien presence of the Ottomans to the east, had diﬃculty deciding whether they should welcome Russian expansionist ambitions to overthrow the traditional Turkish – and Islamic – power- center in the Near East, or institute a coalition to oﬀset Russian plans for aggrandizement. It was their decision to follow the latter course that involved the continent in the ﬁrst major war of the 19th century. In the so-called Crimean War – which was also fought in the Baltic and Southern Russia – the British and French put aside their traditional enmity and fought together against the Russians as allies of the Turks. As Roberts (1997) observes, this was in several respects the ﬁrst modern war. Focusing on the enemy’s most crucial strategic resources – the Black Sea naval base at Sebastopol and the Crimean railway system – the war exempliﬁed the value of selecting one’s priorities. But any impression of eﬃciency is entirely misplaced. It would be diﬃcult to exaggerate the incompetence of military leadership displayed, on both sides, in this miserable campaign; and impossible to overstate the degradation of the British military hospital at Scutari. Some graphic detail may be permitted. In Lytton Strachey’s famous description, “Hell yawned. Want, neglect, confusion, misery ... ﬁlled the endless corridors ... The very building itself was radically defective. Huge sewers underlay it, and cesspools loaded with ﬁlth wafted their poison into the upper rooms. The ﬂoors were in so rotten a condition that many of them could not be scrubbed; the walls were thick with dirt; incredible multitudes of vermin swarmed everywhere ... The stench was indescribable ... There were not enough bedsteads; the sheets were of canvas, and so coarse that the wounded men recoiled from them, begging to be left in their blankets; there was no bedroom furniture of any kind, and empty beer bottles were used for candlesticks. There were no basins, no towels, no soap, no brooms, no mops, no trays, no plates; there were neither slippers nor scissors, neither shoe-brushes nor blacking; there were no knives or forks or spoons. The supply of fuel was constantly deﬁcient. The cooking arrangements were preposterously inadequate, and the laundry was a farce ... Stretchers, splints, bandages – all were lacking, and so were the most ordinary drugs” (Strachey, 1918). The surgeons and orderlies, inured to scenes of suﬀering, had found a depth of horror they had not known before. Through the winter of 1854-55 the British and Russian armies had fought out “a grim battle in which each excelled the other in blundering and ineptitude” (Bolster, 1964). Disasters on the battleﬁeld had brought the British forces to the verge of annihilation, and now the medical and transportation arrangements were in collapse.

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Fortunately, Sidney Herbert, the Secretary at the War Oﬃce, had a friend whom he knew could be depended upon to set matters right. Florence Nightingale (1820-1910) has been depicted in legend as a “saintly, selfsacriﬁcing woman, the delicate maiden of high degree, who threw aside the pleasures of a life of ease to succour the aﬄicted, the Lady of the Lamp, gliding through the horrors of the hospital at Scutari, and consecrating with the radiance of her goodness the dying soldier’s couch”. Instead, as Strachey suggests, Nightingale “moved under the stress of an impetus which ﬁnds no place in the popular imagination” (Bolster, 1964). Florence’s parents had taken advantage of the post-war era, when it was safe again for wealthy English families to travel extensively on the continent. She was named after her birthplace, like her elder sister Parthenope, born in Naples. Their mother, the beautiful Fanny Nightingale, had an impressive pedigree. Her grandfather, Samuel Smith, was as well known in London for his humanitarian instincts as for his riches. When Flora Macdonald, Bonnie Prince Charlie’s famously resourceful supporter, was a penniless prisoner in the Tower, it was Samuel who came to her ﬁnancial rescue despite his commitment to the Hanoverian cause. To show his solidarity with the colonists in the War of American Independence, he abandoned his title to a large portion of the city of Savannah. His son William, Fanny’s father, was an indefatigable ﬁghter for the poor and the oppressed through forty-six years in the House of Commons. His many friends and admirers included the liberal Charles James Fox, William Wilberforce, the leader of the anti-slavery movement, and the talented portraitist Sir Joshua Reynolds. Despite daily exposure to all the luxuries of a privileged upbringing, Florence was not an easy child. Her most reliable biographer, Cecil Woodham-Smith (1950), describes her as “strange, passionate, wrong-headed, obstinate and miserable”. Partly, he suggests, she owed this combination of unfortunate characteristics to the Byronic fashion of the day, when women of station “prided themselves on being martyrs to their excessive sensitivity”, when the merest event “necessitated smelling salts, a darkened room, a soothing draught”. Yet in this “hot-house of emotion”, the stunning Fanny lived to be ninety-two and her redoubtable daughter died at ninety – three years after receiving the Order of Merit, the highest honor possible in British society. As a teenager, Florence heard voices, like Joan of Arc. She had been called into God’s service, but the nature of her response was left to her own discretion. As she matured, she learned to master her bad temper and to cultivate the obligatory social graces, as she was whisked from city to city in the rhythm of her family’s continental life-style. Within, however, unknown to those around her, she burned with a secret intensity, “conscious of the world of misery, suﬀering and despair which lay outside her little world of ease and comfort”. It was not until 1844 that she ﬁrst realized that her life’s vocation lay with the sick and suﬀering. The Nightingales were appalled by their daughter’s curious aberration. Hospitals were places of squalor. A nurse was “a coarse old woman, always ignorant, usually dirty, often brutal, a Mrs. Gamp, in bunched-up sordid garments, tippling at the brandy-bottle or indulging in worse irregularities” (Strachey, 1918). Her initial plan to establish her own nursing foundation was ﬁrmly vetoed, but, as the years ran on,

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her convictions became irreversible. Undeﬂectable, she made herself an authority on hospitals and health services throughout the continent of Europe. When the call came from Herbert to take over Scutari, she was the 34-year-old superintendent of a charitable nursing home in Harley Street, already an indomitable force in the upper reaches of the British medical profession. Nightingale’s impact was transformative, not only at Scutari, but eventually around the world. As the founder of the modern nursing profession, she would be assured of immortality as an enormously important ﬁgure in medical history (Cook, 1913). In recent years her stature has grown further as a holistic theorist and practitioner, who combined an understanding of the compassionate art of nursing with pioneering accomplishments in sanitary and social reform (Sclanders, 1993). More strangely still, she has earned an honorable place in the history of international law. Nightingale’s inﬂuence on the future development of international humanitarian law is not widely appreciated, but the cause-and-eﬀect relationship is fairly clear. Her success in bringing sanity, compassion and eﬃciency to the treatment of the wounded at Scutari became quickly well known around the continent, not least in Geneva, the home of Henri Jean Dunant{1828-1910). On June 24th, 1859, Dunant, a serious, pious, rather corpulent young businessman, had joined the throng of spectators that had gathered at Solferino, where the French and Italians had joined forces against the Austrians. He had never seen a battle before, and he was unprepared for the horrors of the stricken. More than six thousand corpses lay rotting everywhere in the heat of the sun. The wounded, ﬁve times more numerous, were almost crazed with suﬀering, faces distorted in their last torturous hours. There was no one to carry them oﬀ, and nowhere to take them – not even a hell-hole as at Scutari. Dunant sent his coachman to purchase a few commodities that might bring a modest relief. A handful of other onlookers were recruited to do what they could, including a chocolate manufacturer called Philippe Suchard (Moorehead, 1998). The nearby village of Castiglione was soon overwhelmed by the dead and the dying. No one knew about germs and antiseptics. Amputation was the only way to save a limb, though neither ether nor chloroform was available. Back in Geneva, Dunant could not forget the carnage. In 1862 he published A Memory of Solferino. Why, he asked, could there not be a society of volunteers trained and equipped to provide relief on the battleﬁeld as soon as hostilities break out? Should there not be “some international principles, conventional and sacred”, to form the ethical or legal basis for humanitarian assistance to the wounded in times of war? His call to the conscience of the continent struck a respondent chord that resonated widely at all levels of society, even in the culprit royal houses of Europe. His fame was assured. Geneva in the 1860’s had become a center of humanitarian concerns and philanthropic institutions. Dunant belonged to one of the oldest and most prosperous families in the city. Due to prominent Swiss idealists like the hero General Guillaume Henri Dufour (1787-1875), the Swiss Federation had moved to a neutralist philosophy balanced with a policy oﬀering asylum to political refugees who agreed to renounce all political activities. Dufour agreed to lend his prestigious support, and so too did a lawyer and philanthropist Gustave Moynier (1826-1910). Solemn and rather preten-

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tious in disposition, Moynier was to redeem himself later as a confessed Romanist legalist, “with a narrow lawyer’s mind devoid of all originality, extremely shy, and prone to doubt everything except the infallibility of the law” (Moorehead, 1998). But only a few days after reading Dunant’s Memory he went to call on the author. Soon others had joined Dunant, Dufour and Moynier in a collective eﬀort to “civilize” warfare: if possible, by securing agreement on the part of the leading powers for a code of behavior in war-time (a modern ius in bello). The idea was not so fanciful. Under the Treaty of Paris (1856) the parties had agreed in principle on the need to limit the barbarities of warfare. Bold as it was, Dunant’s proposal took hold. At a meeting held in Geneva in October 1863 the delegates endorsed ten articles and set up committees of volunteers to assist the medical corps of the armies of Europe. The International Committee in Geneva would act merely as a non-governmental coordinating mechanism. The Red Cross was born (Berry, 1997). The Geneva Convention of 1864 was signed, and later ratiﬁed, by twelve contracting parties: Baden, Belgium, Denmark, France, Hesse, Italy, the Netherlands, Portugal, Prussia, Spain, Wurttemberg, and the host Swiss Federation. It declared ambulances and military hospitals to be “neuter”; included medical workers and associates (regardless of nationality) among those entitled to the “beneﬁt of neutrality”; required parties to take care of wounded and sick soldiers (regardless of their nationality); and required all medical facilities to adopt a “distinctive and uniform ﬂag” (which would become the reverse of the Swiss ﬂag) (Friedman, 1972). In his Memory, Dunant paid tribute to the pioneering contributions of Florence Nightingale, who at ﬁrst declined to take Dunant seriously. The voluntary approach envisaged by the Swiss seemed inadequate to the battle-hardened, professional English practitioner. What she believed to be necessary was oﬃcial action: a total overhaul of British army military services. Meanwhile, the inadequacy of these facilities in the United States had been painfully revealed in the Civil War on a scale of suﬀering unparalleled in Europe. The record of suﬀering on those American ﬁelds of battle is appalling, almost beyond belief. In response, President Lincoln ordered the organization of a Sanitary Commission. In the United States it was Clara Barton (1821-1912) who took the lead in organizing volunteer assistance, rather like Henri Dunant at Solferino, and, like the professional Florence Nightingale, she would soon acquire a legendary reputation among the ﬁghting men. Dunant and Moynier were unaware of the work of the US Sanitary Commission and, apparently, of Clara Barton. For years they looked down on the American initiative as an oﬀ-shoot of their own Red Cross, whereas the Americans took the view that they were the true pioneers. But, of course, it was Florence Nightingale who preceded them all. Inter-personal rivalries, of national or cultural origin ,were to complicate the early history of the Red Cross, and indeed the wounds did not entirely heal until well into the following century . Indeed the Swiss initiative itself was aﬀected by a breakdown in the relationship between Moynier and his more ﬂamboyant partner (Libby, 1964) Today the international humanitarian movement has grown exponentially, with the global Red Cross system and its Red Crescent and other variants remaining at its core. Numerous issues remain, inevitably, over the best strategy for the coordinated

The Ruling of the Modern World (1815-1905)

delivery of humanitarian relief in a wide range of military and non-military emergencies (Kennedy, 2004). No one, however, doubts the necessity for professionalized volunteer, as well as governmental and professional, services. (Minear and Weiss, 1995). The early work of individuals such as Nightingale, Dunant, Moynier and Barton in the 19th century laid the foundation for the newly impressive capacity of the international community to respond to large-scale suﬀering. Nor does anyone doubt the growth that has occurred since then in the ﬁeld of international humanitarian law (Henry Dunant Institute, 1988; Pictet, 1985). Settling for Arbitration. The work of the First and Second Commissions at The Hague in 1899 was a sobering mixture of success and failure. Many “friends of peace” expressed disappointment that so many concessions had been made to the “evil spirit of war”. The proposal for arms limitation had been torpedoed by Fisher, Mahan, and other comrades of the school of military necessity. A start had been made to strengthening the humanitarian laws designed to protect the victims of war, but so much more remained to be done to “humanize” modern warfare. Some progress had been made beyond the modest provisions of the St. Petersburg Declaration on prohibited weapons, but the sense of impending military catastrophe had not been assuaged. The more diﬃcult issues in the modernization of the laws of war had had to be postponed to a subsequent arena. The 1899 Conference did not denounce war as an evil to be extirpated from human society. The idea of permanent peace had remained current through the 19th century. But earlier, even Immanuel Kant had recognized that progress toward that end was a very distant prospect. Moreover, the Kantian conception of international order was made conditional upon the realization of hopes for constitutional democracy in national government. Increasingly, serious advocates of peace in the 19th century placed faith in the rational adjudication of international disputes, which depended on the development and professionalization of international law and diplomacy. Indeed “the optimistic mood engendered by the immense expansion of the European economies ... suggested to many writers that there was nothing inevitable about international conﬂict, nor anything in international conﬂict which could not be alleviated by suitable legal or diplomatic machinery. Among the English Utilitarians, for example, writers like Jeremy Bentham, James and John Stuart Mill, it came to be accepted almost as dogma that just as economic studies had apparently disclosed a harmony of interests between the diﬀerent parties to the wealth-producing process, so internationally there was no essential conﬂict between the interests of one nation-state and another. Given better state practice and the development of international law, interests could be reconciled and solutions found of mutual beneﬁt to the parties” (Northedge and Donelan, 1971. Some, at least, of the dangers associated with inter-state conﬂict could be reduced through practical arrangements for alternative methods of peaceful settlement. The idea that disputes could be settled by arbitration instead of war has an ancient lineage. As we have seen, legend in primitive and classical antiquity suggested that “arbitration”, in some sense, was favored by the gods, although they also seemed to have a ﬁckle attachment to war as an honorable course of action to settle issues.

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Impartiality was also elusive among the mortals. Supposedly, Xerxes, son of Darius, owed his succession to the throne to an avuncular ruling by Artaphernes. Most Western scholars doubt that inter-state arbitration had a pre-Hellenic origin (Taube, 1932). The Greeks frequently invoked the principle of arbitration within their own family of nations, especially among members of the same league. Numerous treaties of that period and region contained a compromissory clause that called or an adjudicated resolution of any diﬀerence that might arise between the parties, such as a boundary dispute (Tod, 1913). Contemporary scholars tend to be sceptical that frequent use was made of these provisions. The Amphictyonic Council seems to have mediated disputes between members, but these almost invariably arose out of infractions of religious ritual (Ralston, 1929). The truth might be that ancient arbitration was just suﬃciently frequent to justify the Greek claim to having established it as a workable and civilized procedure between two or more disputed city-states. International arbitration was not unknown in the history of the early Romans, but their role as third party adjudicator was usually in disputes between states dependent on the superior power and authority of the Roman Republic. It must be questioned whether these interventions qualiﬁed as adjudicative in the strictly legal sense .Later, with the consolidation of the imperium of Rome, the use of international arbitration in the Mediterranean world waned to the pint of extinction (Taube, 1932). Medieval Europe had certain ‘international”features (Wright, 1930). It was not uncommon, for example, for disputes between European states, cities, or rulers to be settled by recourse to a supposedly disinterested third party. Such a method of resolution was applied occasionally to conﬂicting claims to dynastic succession, to questions of jurisdiction and indemnity, and to issues concerning the division of lands and the allocation of prisoners of war to the slave market. It is not recorded how much weight was given to legal principle or precedent in these “arbitrations”. Since the privilege of settlement was usually entrusted to the personal discretion of a sovereign or the Pope, these third party decisions are likely to have been based on custom or the adjudicator’s sense of equity (ex aequo et bono), rather than on established rules of law. Presumably the ancient and pre-modern practice of international “arbitration” was closer to what we would regard as “mediation”, in modern terminology, even if the parties were expected to comply with the ruling. The contemporary taste, in the early 21st century, is to insist on deﬁnitional precision. In contemporary legal theory, special eﬀort is made to diﬀerentiate between “mediation”, “arbitration”, and “adjudication”. All three are examples of a third party procedural for the treatment of disputes, but they have distinctive characteristics. “Mediation” in international law is a process that involves no obligation to restrict recourse to legal considerations. The challenge to the mediator is to be ﬂexible, not rule-bound, in the search for an equitable, mutually acceptable, outcome. The ﬁnal report is not legally binding, but, if it is successful, it usually becomes the basis, or part of the basis, of a negotiated agreement between the parties. The terms “arbitration” and “adjudication”, on the other hand, are both used in contemporary international law to refer to the settlement of international disputes

The Ruling of the Modern World (1815-1905)

– usually disputes between two states – by the application of legal rules as interpreted by qualiﬁed legal experts. Both kinds of decision are binding on the parties. It is generally assumed that the only material diﬀerence between the two procedures is that arbitration is eﬀected by judges of the parties’ choosing, whereas adjudication is conducted within an established system of courts of law. In both processes, decisions are based on legal rules and principles, but international arbitral tribunals are sometimes permitted by the parties to go beyond the realm of law and to apply considerations of “equity” or “natural justice”, if this is judged likely to produce a fairer outcome (Merrills, 1991). By these procedural, substantive and normative criteria, ancient and pre-modern practices in the third party treatment of international disputes do not ﬁt neatly into mutually exclusive categories of legal theory. Most historians agree, however, that the ﬁrst early modern experiment in the peaceful settlement of international disputes originated in the Jay Treaty of 1794, which was negotiated between John Jay, the ﬁrst Chief Justice of the United States, and Lord Grenville, the British Foreign Secretary. Because this famous treaty failed to resolve the hardest grievances between the parties, it was widely characterized as a failure on both sides of the Atlantic Ocean. In the United States especially, it raised a political storm, denounced by critics as surrender by the pro-British Federalists involved in the negotiations. Although designated as a “commercial treaty”, it was primarily an agreement to create an arbitration system – the ﬁrst of its kind in modern diplomacy. No less than four joint commissions were established to adjudicate disputes over outstanding claims between American and British interests and a number of North American boundary disputes between the United States and British North America. American opponents burned Jay, the “damned arch-traitor”, in eﬃgy. Jeﬀerson, Madison and their fellow Republicans were infuriated, and the French government interpreted the agreement as a violation of their own 1778 commercial treaty with the United States. Yet the Jay Treaty scraped through the US Senate with a bare twothirds majority, as required, and President Washington, who disliked it and could have exercised his veto, decided instead to ratify. In the spring of 1793 the US House of Representative demanded access to certain documents relating to the negotiations between Jay and Grenville, but Washington asserted “executive privilege”, creating a precedent that still reverberates within the American constitutional system. Despite all these protests, the Jay Treaty stands as a pioneering initiative in the history of international law: a the modern foundation of the adjudicative model of world order. The arbitrators appointed to the four commissions created by the Jay Treaty had to be nationals of the two parties. So the Jay model, using joint commissions, is not a typical example of modern international arbitration. It left open the possibility of deadlock between arbitrators with a national bias. Moreover, it allowed a blend of juridical and diplomatic considerations to produce what was tantamount to a negotiated settlement. So it sits somewhere between the modern concepts of mediation and arbitration. Three cases of “arbitration” came out of the Jay Treaty, all in 1794. The best known today which arose out of Article 5, is the settlement of the St. Croix River dispute on the border between the Canadian province of New Brunswick and the Ameri-

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can state of Maine. The three commissioners – two Americans and one Canadian – found in favor of the United States. The other two involved claims by individuals for debts or injuries associated with the recent War of Independence. A rupture occurred between the national commissioners appointed to one of these under Article 6. Eventually, in 1802, that provision had to be annulled by a subsequent treaty, but a settlement was approved through negotiation between the governments. The third arbitration, also involving private claims, was more successful, though it too was delayed and complicated by diplomatic wrangling until the ﬁnal awards in 1804. The second modern experiment was also an Anglo-American initiative. Under the Treaty of Ghent of 1814, which closed out the War of 1812, the arbitral commission consisted of an equal number of British and American nationals appointed by the parties, but it was provided also that if the national commissioners could not agree, the matter would be referred to a neutral umpire, whose impartiality would not be open to challenge. Presumably many at that time who were concerned with the retention of sovereign prerogative were apprehensive about this new initiative in submitting matters of national interest to the discretion of a foreign umpire. There was still no guarantee that the issue would be resolved by the “objective” application of rules of law. But nationalist critics of the Ghent experiment had to contend with the rationalists, who could point to the deep-rooted legacy of disinterested judges, both in the common law and civil law traditions, as well as with the internationalists, who saw no insuperable barrier of principle against the introduction of third party adjudication at the international level. From that time forward, the arbitral method of dispute settlement in international diplomacy assumed a more regular momentum. For the period between 1815 and 1899 Ralston (1929) lists dozens of international adjudications, mostly of dubious status as examples of true arbitration and yet all genuine examples of resort to a peaceful third-party settlement of a dispute that might otherwise have escalated into a violent conﬂict. Another list, deﬁning “arbitration” in the most generous way, includes no less than 474 arbitral settlements after the ﬁrst three cases that arose out of the Jay Treaty (Darby, 1904). This evidence of progress encouraged the European and American peace movement to organize public meetings in favor of international arbitration. A variety of magazines, journals and pamphlets were published in most languages of the Western world, arguing that international law could be organized institutionally as a partial , if not complete, replacement of war. Two organizations, the Universal Peace Congress and the Inter-Parliamentary Union, were formed, both in 1889, to facilitate and coordinate the peace movement at the international level. The “legal internationalists” within the peace movement insisted that civilized states had arrived at the point where national interest and national security were no longer served by the huge expenditures on the build-up of armaments. Arbitration, not “world government” was generally agreed to be the most realistic alternative for the settlement of disputes. In 1881, for example, the Association for the Reform and Codiﬁcation of the Law of Nations met at Cologne and hailed arbitration as “a means essentially just and reasonable, and even obligatory in all nations, of terminating international diﬀerences which cannot be settled by negotiation” (Cooper, 1971).

The Ruling of the Modern World (1815-1905)

So it is understandable that many of the delegates attending the First Peace Conference at The Hague in 1899 anticipated a break-through in the Third Commission. Few of those appointed to the Third Commission were likely to try to block eﬀorts to establish a system for peaceful settlement. Neither Fisher nor Mahan, for example, was included. Neither of these naval men could be expected to accept “arbitration” as a substitute for war, and Mahan would later reveal a deep-seated scepticism that arbitration would even prove to be an eﬀective substitute for diplomacy (Mahan, 1912). “Diplomacy failing, war alone was competent” – at least, he must have meant, in matters of “vital national interest”. Among those appointed to the Third Commission, on the other hand, there was widespread consensus on the value of the principle of peaceful settlement. Many delegations were already committed to pursuit of a plan for establishing some kind of permanent international tribunal. The likeliest obstruction was the opposition of the Kaiser, who considered such a proposition derogatory to his sovereign status. Under pressure on many sides, not least from the United States, the German government softened its position, though remaining hostile to the idea of obligatory arbitration. The players most forceful in advocating a standing tribunal were France, Great Britain, Russia, and the United States. It may be that Germany changed tack chieﬂy in order to maintain cordial relations with Russia. Although there was a Great Power disposition in favor of arbitration, individual personalities also had an impact on wavering delegations. Perhaps partly because of the pioneering role of the Anglo-Americans in the actual resort to arbitration of formal inter-state disputes, continental European diplomats, jurists and politicians were particularly active at The Hague as advocates for an arbitral system. No delegations were more central to negotiations in the Third Commission than Leon Victor Auguste Bourgeois (1815-1925) and Feodor Fedorovich Martens (1845-1909). Bourgeois, who presided over the Third Commission, was by far the most inﬂuential of the politicians in attendance. After receiving his doctorate in law in Paris, he had occupied a number of administrative positions, including prefect of police, before election to the Chamber of Deputies in 1888. Over a period of rapidly revolving governments in Paris, Bourgeois held ministerial posts in Public Works, Interior, Justice, and Foreign Aﬀairs, and then, in 1895, he became Prime Minister of France. Never known for tact or a talent for accommodation, he lasted only six months, no longer than most of his predecessors and successors in that oﬃce. Yet he was a relentless terrier in matters of social principle, and ﬁrmly and eloquently committed to the cause of international solidarity. This was especially remarkable in a leader of a country which, as Eyﬃnger reminds us, was”thirsty for revenge” after the humiliating peace of Sedan (1870) that ended the Franco-Prussian War. Later, Bourgeois would be recognized as one of the principal drivers of the movement that established the League of Nations. In his seventieth year, he was rewarded with the Nobel Peace Prize, although approaching blindness prevented him from attending the ceremony in Oslo. Martens was a jurist and a diplomat. Though also known as Friedrich von Martens (as well as Frederic Frommhold de Martens), Feodor was a Russian. Born of a humble family in Estonia, he was not a descendant of the German jurist Georg Friedrich von

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Martens or his nephew Karl, although all three published well-known treaty collections in their time. Other works by Feodor included a treatise on the law of “civilized” nations and books on Russian foreign policy in China and Central Asia. In a country whose leadership was still wary of progressive notions, Martens stood out as an internationalist. No Russian of his era was more actively engaged in European eﬀorts to codify the laws of war and to promote the goal of international arbitration, and especially of the alternative method of international commissions of inquiry. He was a warm admirer of Lieber’s Code and had played a prominent role in the drafting of the Oxford Manual adopted by the Institut de Droit International in 1880. He scoﬀed at admirals paralyzed with fear “at the mere thought of three arbitrators”. He attended numerous meetings of the International Red Cross in its early years and played a vigorous part in international eﬀorts to suppress the slave trade. Yet much as he despised the use of war as an instrument of policy and aligned himself with humanitarian causes, he dismissed paciﬁsts who believed that the elimination of war was a realistic enterprise. He placed his hopes not in “pious wishes”, but in the capacity of “practical diplomacy” to build a system of order. Great Britain and the United States were, of course, precommitted, as pioneers, to the principle of arbitration. The British delegation was led by Sir Julian Pauncefote, one of the most senior and most respected professional diplomats at the First Peace Conference. He was the ﬁrst British diplomat to be designated as Legal Under-Secretary for Foreign Aﬀairs. He had negotiated with US Secretary of State Richard Olney the Treaty of Arbitration that carried their names, but failed to win the approval of the US Senate in 1897. In 1901, however, his persistence would prevail with the success of the Hay-Pauncefote Treaty, which accomplished several purposes including the guarantee of free passage to all nations through the Panama Canal. The US had more than a fair share of strong-minded personalities, not only the imposing Captain Alfred T. Mahan, who delivered thunderbolts in the First and Second Commissions, but also Frederick W. Holls, an aggressively diligent crusader for an Anglo-Saxon (Anglo-German-American) axis. Fortunately, President McKinley had agreed, on Holls’ suggestion, to appoint Andrew Dixon White as the head of the US delegation. Although Holls was very active in the work of the Third Commission, the moderating inﬂuence of White was always apparent. A genial, suave, multi-lingual professor of history – and the ﬁrst president of Cornell University – White too was strongly pro-German, but unlike Halls he possessed an instinctive talent for dealing with delicate issues. Together Holls and White, both ﬂuent in German and experts in German aﬀairs, had much inﬂuence on the Kaiser’s delegation. Moreover, White had had practical experience of international arbitration as a member of the Venezuela Boundary Commission. He began at The Hague as a sceptic, but gradually gained conﬁdence in the bolder aims of the Conference. At the second meeting of the Third Commission the Russian delegation presented a dual proposal, which encompassed a suggested convention that would bind the parties to mediation, in the event of diplomatic failure, and a draft code on alternative modes of arbitration. Pauncefote, for the British delegation, opposed the idea of a code, and proposed that the Commission proceed instead to discuss the need for a permanent international tribunal. To review the merits of these alternative strate-

The Ruling of the Modern World (1815-1905)

gies, Bourgeois proposed the creation of a special committee (comite d’examen). This was agreed to, and seven rather disparate representatives were elected to this body: Tobias M.C. Asser (the Netherlands), Chevalier Edouard Descamps (Belgium), Baron d’Estournelles de Constant de Rebecque (France), Frederick Holls (United States), Edouard Odier (Switzerland), and Philipp K. L. Zorn (Germany). Despite general agreement on the merit of peaceful settlement, the committee members soon discovered a number of underlying complexities. For example, on the ﬁrst part of the Russian proposal, it became necessary, as argued by Descamps, to distinguish mediation from “good oﬃces”. The latter was seen to be of a preliminary and more informal nature, whereas the former, it was suggested, should be reserved for “serious” disputes and used only “as far as circumstances would permit”. After debate, it was agreed, on the motion of Bourgeois, to drop the second qualiﬁcation. Several of the delegations were fearful of the prospect that a system of mediation might encourage “unjustiﬁable meddling” in their internal aﬀairs. Mediation, it was agreed, should never be abused to gain unfair advantage to either party to a dispute. The oﬀer to mediate could never be regarded by the parties as an “unfriendly act”. Both good oﬃces and mediation could never possess more than an advisory function. In the case of “a serious diﬀerence endangering the peace”, the Commission ended up in agreement with the proposal by Holls for a special mediation procedure, which he likened to the use of seconds in a duel. These provisions became incorporated into Title II of the ﬁnal text: the 1899 Convention for the Paciﬁc Settlement of International Disputes. Title III was devoted to the use of international commissions of inquiry, as advocated chieﬂy by Martens. This method, it was ﬁnally agreed, should be limited to “diﬀerences of an international nature involving neither honour nor vital interests, and arising from a diﬀerence of opinion on points of fact”. But discussion on this topic was heated, particularly because of the fears of the Balkan delegations (Greece, Romania and Serbia) that fact-ﬁnding might become a pretext for intervention by the Great Powers. Martens had to display his persuasive skills by arguing the technical and descriptive, rather than political and judgmental, nature of that process. The Balkan and other small-state delegations were not easily swayed, uneasy that such a procedure might place their newly-won national independence in jeopardy, but they yielded after being invited into the Comite d’Examen, where qualiﬁcations were being negotiated. The core of the 1899 Convention was Title IV (“On International Arbitration”). It was here that a breakthrough had to be made. Even the Russian proponents had to concede at the beginning that only a system of arbitration could be realized. As Eyﬃnger notes (1999), it was obvious that, “given the current state of international politics, general and universal obligatory arbitration was to remain an ideal on the distant horizon. Nations would never bind themselves, on principle and unreservedly, to [such a] constraint on their vital interests, honour or welfare”. International treaties could not aspire to the status of legislation in the national domain. The eﬀectiveness of international arbitration would be limited to questions of a legal nature, especially to disputes over the interpretation or application of treaties. It could not be a means of making policy for the world community.

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To eﬀect this purpose, the Conference agreed to establish a standing tribunal: the Permanent Court of Arbitration (PCA). The Hague was selected as its site, the ﬁrst of a growing number that would be located in the “Judicial Capital of the World”. Each signatory of the Convention was empowered to select up to four persons “of known competence in questions of international law” and “of the highest moral reputation”. Tribunals needed for a speciﬁc arbitration under the Convention would be drawn from this pool of oﬃcial nominees – a pool that would eventually consist of over 300 individuals. Procedures for the operation of the PCA system were set out in some detail. The ﬁnal text was essentially a compromise between the Russian and British approaches, and it was made possible by the German government’s late decision to acquiesce, given the openness and voluntariness of the system designed. Reﬂections. The overriding impression of the 19th century, for the contemporary reader, is of an era still obsessed with the merit and virtue of state autonomy. It was the age when sovereignty became sacrosanct. Yet despite the imperialistic ethos of 19th century Europeans and the near-exclusiveness of “their” system of sovereign states, the period from 1815 to 1905 was also an era of impressive acceleration toward the ideal of an international community. Virtually all within the 19th century domains of international law and international diplomacy conceded that progress toward that goal depended on the consent of sovereign states. The challenge was to expand the system through treaty-making in general, and for community-building purposes through good-faith, compromise negotiations in the arena of law-making conference diplomacy. The “big picture” projected by developments in the treaty practice of the 19th century is a remarkably clear reﬂection of fundamental changes taking place in the “world community”: both within the evolving, but not yet organized, system of inter-state cooperation and also within the emerging, but not yet universalized, world society. In retrospect, we see the multilateral, and many of the bilateral, treaties of the second half of the 19th century as the stepping-stones to the 20th century world of innumerable international organizations and agencies, many of which are regulatory or administrative in function. Perhaps less obviously, these international agreements also mark the birth of a cosmopolitan age, when hundreds of thousands – and eventually millions – of ordinary citizens would think little of the rigors of travel to foreign countries, often very far from home. Though more or less oblivious, the modern traveller is in fact aﬀected in numerable ways by the provisions of thousands of regulatory and facilitative treaties, conventions, agreements, protocols, exchanges of notes, and other instruments that form a changing, but permanent, bureaucratic backdrop to international travel and communication. Hundreds of thousands of national government oﬃcials, and almost as many members of the “international civil service”, are directly engaged in round-the-clock supervision of inter-societal interactions. The beneﬁciaries – but sometimes victims – of these proliferating arrangements are ordinary citizens, not monarchs or ministers or diplomatic agents. Most treaty-making today is directed at the citizen of world society. The growth in treaty-making is surely one of the most striking aspects of the progressiveness of the 19th century. In the Age of Technology the ascendancy of tele-

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graph agreements seems appropriate. These instruments were the ﬁrst evidence of the regulatory role of international law and diplomacy. The telegraph is not entirely extinct in contemporary society, but the original forms have been overtaken by more eﬃcient methods of telecommunication. The “telegraph poles” that we see at the British roadside carry telephone wires, not telegraph circuits. The telex was a highly developed printing telegraph, but it too has yielded to newer technologies such as faxes and e-mails. The great submarine cables are still there, but in wireless mode. Yet the old system of wire telegraphy was of great historic importance in the age of the railway, and in naval history, and is not yet entirely abandoned (Hubbard, 1968). Today we live in a future undreamt of by Marconi, Morse, and “C.M.”, but it was the 43 multilateral agreements on telegraphic communication concluded between 1854 and 1904 that provided the ﬁrst building blocks for a global system of regulation of the radio spectrum that goes largely unnoticed, and works rather well even in the age of satellite communications (Leive, 1970; and Smith, Delbert, 1969). Nineteenth century treaty-making also foreshadowed the rising concern with problems of resource management, which would become the core of the environmental model of international law so highly visible and inﬂuential in the last quarter of the 20th century. Since the pioneering work in regime-building for the Rhine, other major international river systems have been brought under multilateral regulatory regimes. These challenges are never easy to meet in conditions that are invariably politicized, more conspicuously than in the technical sector of telecommunications (LeMarquand, 1977). Jurists have made strong and continuing eﬀorts to base rivershed management on principles of public international law (Berber, 1959). European scholars have been particularly aware of the contributions of the Rhine riparian states in the 19th century (Kaeckenbeeck, 1962). But for some lawyers, and most political scientists, success in this kind of regime-formation is unlikely to be governed by legal rules; rather, perhaps, legal principles operate in practice as guides in the process of negotiation. Other 21st century ideals of world law are seen to have gathered a degree of operational credibility in the diplomatic arena of the late 19th century. The prevailing notion of international progress was clearly that of order. By the 1890’s the idealists in the tower were no longer alone in dreaming of an organized world community. Hopes for some kind of league of nations had risen and fallen, but also risen again. Not all at The Hague were prepared to be swept away by internationalist enthusiasm. Sceptics doubted that the world was witnessing the “Dawn of a New Era”. Few believed that the international community was ready to become a constitutional order with a “Parliament of Man”, much less a “Federation of the World”. Yet men like Bourgeois and Martens could no longer be easily derided in the arena of practical diplomacy. It was becoming realized that the Great Powers were capable of working together for certain common-interest purposes through collective diplomacy. Despite the continuing insistence on the legitimacy of national interest, it was now fashionable to acknowledge the need for a new kind of balance between moral and amoral considerations in the conduct of foreign policy. Although the competitiveness of inter-state

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relations was only too apparent, few by the end of the 19th century were prepared to deny that beneﬁts might be available through cooperative arrangements. The 19th century was the least war-like in modern history, and some progress was made in the arena toward the management of war. The realities of practical politics and diplomacy ruled out any progress toward the elimination of warfare. Paciﬁsm was still essentially an intellectual phenomenon. But education was becoming more general. The seeds were being sown for the later growth of peace activism in the soil of popular democracy. Above all, for many international lawyers, the First Peace Conference at the end of the century was of seminal importance chieﬂy by introducing a system – albeit a “weak” one – for the adjudication of inter-state disputes. In 1905 the correct usage of the term “arbitration” was still in dispute: a suitable topic for graduate student theses (Balch, 1920). Although the Permanent Court of Arbitration would not fulﬁl the highest hopes, it did become a going concern. Although it would be transcended by much bolder judicial developments at the world level, it represented the foundation of later successful arrangements for the peaceful settlement of disputes – if not as a substitute for war, then at least occasionally as a substitute for fractious diplomacy. The Role Players Since the 19th century there has been a tendency to refer to international law as a legal system. However distinct, it has been presented as if it should be compared and contrasted with systems that have evolved out of national legal cultures. One of the diﬀerences that have set it apart is its institutional incompleteness. It was in the 19th century that the international political community, especially in the Western world, began to apply its diplomatic resources to the task of legal development. To carry this work forward it would be necessary for the sovereign states to agree on the need for international institutions. Even those jurists who characterized the law of nations essentially as a coherent and discrete body of norms – the “normativists” – recognized that its future would be shaped increasingly by the dynamics of international politics and diplomacy. Many today look back at that “classical” stage in the history of world order as the era when the diplomatic arena began to take charge. There have been two quite different responses to the merger of the legal and political domains. The ﬁrst reaction was to concentrate on the line of juridical continuity from the age of ancient Rome, when the world’s greatest legal system ﬁrst began to crystallize. Through an intellectual process of abstraction, it was possible, for civil lawyers in particular, to screen out most of the new reality of political interests and ideologies, of cultural traditions, and of moral and religious biases, and to focus entirely on the discrete, value-neutral, “science” of law designed to govern the world community. The other response was to recognize the political foundations of virtually all modern eﬀorts to develop, interpret and apply the norms of the international legal system. Those wishing to be “realistic” about the origins and processes of modern legal development at the international level have been prepared to accept the complications

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that arise from admitting the relevance of political, ethical, cultural, economic and other factors. In a history that envisages international law in this second, larger, sense of “world order”, it seems necessary to present the 19th century process of international legal development as one of interaction. Questions. Who were the participants in that process? What were their distinctive roles in the development of world order? To what extent can they be seen to represent the juridical (or “scientiﬁc”) orientation, on the one hand, or the diplomatic (or “bureaucratic”) orientation, on the other? What ideas or values did they have in common? What political, cultural, intellectual, or vocational diﬀerences complicated the process of interaction? The Text Writers. As we have seen, a composite picture of the “system” of international law was provided by the emerging pattern of treaty practice. Twentieth century compilers of treaties and calendars such as Parry (1979) and Wiktor (1998) have provided us with a nearly comprehensive list of the treaties, conventions and other instruments of the 19th century, but the lists published at that time were incomplete. For a fuller understanding of the range and focus of international law in that era it was necessary to draw on the accounts of jurists and scholars. The text-writers of the early 19th century saw, or imagined, international law in much the same way as their predecessors of the late 18th century. Most jurists of the time believed it was necessary to depict the system of international law as a more-orless linear descendant of past ages. More often than not, the treatises published between 1815 and the mid-19th century accepted the relevance of the enlightened ideas and practices of antiquity. Still inﬂuenced by the idealism inherent in the natural law tradition of Europe, they liked to think of the law of nations as the humane and sophisticated outgrowth of universal human development. They were idealists carrying the torch for humanity, interpreting the law of nations as the way forward in a world so long aﬄicted by tyranny, ignorance and bias. In large part, they were children of the Enlightenment. By the mid-19th century, however, a rift had appeared between text writers with a universalist vision and those who saw international law essentially, or entirely, as a product of European or Christian civilization. For the latter, only the Western record had to be consulted. Some were prepared to credit the ancient civilizations of the Near and Middle East with early contributions to the practices of treaty-making in good faith, with the conferral of special privileges or immunities on envoys, and even with pioneering, if short-lived, eﬀorts to establish and maintain some kind of system of inter-state relations. Others took the narrower view that Europe alone was the cradle of modern civilization, and that the heritage of world order should be sought out within the framework of their own intellectual, political, diplomatic and cultural history. Between 1815 and 1905 scores of treatises on international law – probably over one hundred – were published in at least one, and often several, of the major Western languages: French, German, English, Spanish and Italian. They were read and re-

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ferred to in virtually all the countries of the Western world. In certain circles, to have at least a smattering of international law was considered an asset. Few of these works are read or referred to today, but it seems important in a contemporary history of world order to acknowledge some of them. Our list of selected text-writers might begin with the German jurist Georg Friedrich von Martens (1785-1848). Born in Hamburg, he quickly proved himself an exceptional scholar. For most of his professional life he occupied the chair in public law and jurisprudence at the University of Gottingen. As a German, he was a close witness to the transformation of the sovereign and semi-sovereign entities that had made up the German-speaking empire before the Congress of Vienna. Now, after the Congress of Vienna, the organized European community of nations seemed to consist of a core of fully sovereign states and a periphery of German and non-German principalities of lesser status. Some, such as Moldavia, Wallachia, Monaco, and Serbia, had been placed under protectorates by treaties engineered by the Great Powers. Moreover, issues had arisen over the legal status of many German and Italian principalities and city-states, the provinces of Belgium, and the cantons of the Swiss Federation.. If the law of nations was to be seen as the product of formal state consent, it was now of importance to identify the corpus of treaties negotiated in recent times. Taking 1761 as his starting point, Martens set out to provide the ﬁrst systematic, chronologically arranged, collection of the world’s treaties. Before the ﬁrst seven volumes of his collection (Recueil des traites) were published (1791-1801), Martens had produced another lesser work (Histoire diplomatique des traites) that traced the diplomatic history of treaty-making from 1577 to 1802. For a century and a half, down to the Second World War, the much-revised and updated Martens collection would stand as the principal source of treaty data: the most reliable evidence of what the states had consented to. Martens was also the author of a systematic treatise on the European law of nations (Precis du droit des gens moderne de l’Europe), ﬁrst published in French in 1788 and in German in 1796. In this work the author took a negative view of antiquity. For the ancient Greeks and Romans, as Martens saw them, the state of war was natural and permanent. Even Aristotle had approved of the capture of foreign goods in the course of hostilities and of the reduction of captives to slavery. Ancient treaties were rarely, if ever, respected as a solemn bond, and diplomatic immunity depended on the force of religious oath and ritual. As to the law of nations of his own time, Martens, like most of his contemporaries, had no diﬃculty with the notion that the sovereign states of Europe had the right to acquire territories by the act of occupation, which was seen to be justiﬁed by analogy with the right of property in public law applied to lakes, rivers and coastal waters. In the law of the sea, the coastal state was seen to have a right of ownership (jus littoris) in waters close to the shoreline, where the resident oﬀered no piscine challenge to the human act of occupation. The validity of treaties depended on the free, unqualiﬁed and mutual consent conferred by state representatives acting within the scope of authority granted personally by their sovereign. Treaties authorized and signed personally by monarchs did not need to be ratiﬁed, since there was no higher level to defer to. Certain treaties of special importance – involving territorial cession or granting

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guarantees or indemnities, for example – were deemed to be binding, even if clearly “unequal”. Diplomatic immunity was to be respected, but only at the highest rank of Ministers (i.e. ambassadors), who were seen to be the personal representatives of the sovereign ruler. But Martens saw no obligation on states, in the absence of a special treaty, to exchange diplomatic representatives. For him, there was no unconditional “right of legation” (Martens, 1858). Gerard de Rayneval (1736-1812) was a generation older than Martens, but his treatise (Institutions du droit de la nature et des gens)was not published until 1803, ﬁfteen years after the appearance of the German jurist’s Precis. His years before then had been spent mostly in diplomatic service. Born in Alsace, he and his elder brother had the privilege of choice between a French or German career. At ﬁrst Gerard seemed set on a life of study, with a special interest in German public law nurtured at Strassburg, and his ﬁrst publication came out in Leipzig in 1766. But the young scholar enjoyed his brief experience as a diplomatic secretary at Dresden, and agreed to cross the Atlantic with his brother, who had been appointed the ﬁrst French Minister to the United States. In 1788 Gerard began to develop his own diplomatic career in the service of the French government, which he helped to negotiate the 1788 Treaty of Commerce with Great Britain and to revise the Treaty of Utrecht. After further experience of negotiations with the Prussians and the Dutch, Rayneval was ﬁred in 1791 apparently for an insuﬃciency of enthusiasm for the Revolution. The truth seems to have been that Rayneval was a moderate, who favored experiments in constitutional reform, such as the introduction of a limited form of monarchy. Given his academic background, it is not surprising that Rayneval envisaged the law of nations as an extension of public law. He was troubled by the philosophical diﬃculties associated with the concept of sovereignty, preferring to focus on the “principles of independence”. Given his diplomatic experience, we should not be surprised that he placed treaties of alliance at the center of inter-state relations. Such instruments, he felt, could properly be used as an oﬀensive strategy against tyrants, who lacked legitimacy, and also against sovereigns who possessed legitimacy but ruled benevolently. He struggled with ethical issues associated with aggressive diplomacy. How could the international community combat evil regimes without resort to armed intervention? Was the resort to collective armed force compatible with the law of nations? Rayneval seems to have put less faith in purely “demonstrative” treaties of peace and friendship than either Grotius or Pufendorf. On the whole, he seems relaxed about the formal legal status of parties to most international agreements, but treaties of alliance – as centerpiece of the international system – could only be concluded between fully sovereign states. Such instruments could be limited or perpetual in duration, generic or speciﬁc to a particular situation. Either way, they had to be strictly observed. On law-of-the-sea issues, Rayneval followed the Grotian line that emphasized the freedom of the high seas, but he conceded the greater legal complexity of waters close to the shore – straits, gulfs, and coastal and semi-enclosed waters – where peace and security were pre-requisites. The coastal state was seen to be entitled to enact and enforce its own regulations in these areas, including the right to search and

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seize foreign vessels carrying prohibited or contraband cargoes, but all passing ships exposed to the greatest perils of the sea had a “right of refuge” in the nearest port. Another early 19th century jurist of inﬂuence was Jean Louis Kluber (1762-1826), a Prussian scholar who occupied the chair in public law at Erlangen. In due course, however, he became an associate of the Prussian Chancellor, Prince Karl August von Hardenberg (1750-1822), who was a key participant in Great Power diplomacy at the Congress of Vienna. Kluber, rather like Rayneval, was a careful advocate of constitutional monarchy and a supporter of the principle of federalism. But his exposure to practical diplomacy did not deﬂect from a scholarly pursuit of abstractions. His principal academic work (Droit des gens moderne de l’Europe), originally published in 1819, was organized on the basis of core concepts arising from what he regarded as the state’s fundamental right of self-preservation, such as independence, equality, property, and treaty-making capacity. His emphasis was on entitlements, which included the right of legation, the right to negotiate, and the right to be neutral (Kluber, 1861). His treatise appears surprisingly conceptualistic for someone with a foot quite ﬁrmly planted in the arena, but it remained inﬂuential on the next generation of jurists. One of these was Andres Bello (1780-1863), a multi-talented Venezuelan scholar, who, like Rayneval and Kluber – and numerous others who followed – combined his academic pursuits with a diplomatic career. He was already a veteran of many diplomatic assignments in Europe and Chile before he published his chief treatise (Principios de derecho de gentes) in 1832, which he intended to supplement the work of Emmerich de Vattel. Bello was the ﬁrst of a succession of Latin American jurists, who included the Argentinians Charles Calvo (1824- ) and Amancio Alcorta (18051862). Calvo saw the heritage of the law of nations as a derivative of classical antiquity. In his eyes, Cicero was an honorable, principled pragmatist, who defended the use of force to counter threats to the republic but insisted on the obligation to observe the laws of war. He approved of Cicero’s ethical prescription to pardon one’s enemies, unless they were guilty of serious violations of the laws and customs of warfare. Similarly, Calvo held that nations must always listen to proposals for peace and be true to their formal promises. Many of the leading text-writers preceding him are acknowledged as builders of the science of international law, including Martens, Kluber and Bello. Calvo’s conception of the law of nations was dualistic, derived from the consensus inherent in the European and American treaty system, on the one hand, but also from the corpus of universal “principles of justice”, which he perceived evolving in many advanced systems of civilization, including the Iroquois nation of North America. In his list of “sources” of international law, the works of text-writers are given ﬁrst place, followed by treaties, customs, “diplomatic acts”, decisions of arbitral tribunals and prize courts, national courts, and the opinions of jurists (jurisconsults) (Calvo, 1870). Alcorta was a great admirer of Calvo, his fellow countryman. Although he was a professor at the University of Buenos Aires for many years, he was a frequent participant in international codiﬁcatory projects in such areas as civil procedure and mili-

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tary law. For Alcorta, international law was inherent in human society (ubi societas,ibi jus). He had no doubts about the legal character of international law, but its limitations were frankly acknowledged. The diplomatic community as a whole had a duty to make a constant eﬀort to promote the cause of “international harmony”. He felt that priority should be given to facilitating the convergence of national legal systems through the uniﬁcation of national legislation and the codiﬁcation of international legal rules. He found legal antecedents of value in non-Western civilizations, and in ancient cultures, and as a son of Iberian culture he emphasized the contributions of the pre-Grotian Spanish jurists. Arguably, however, the most inﬂuential of the mid-19th century treatises was the Elements of International Law by the American jurist Henry Wheaton (1785-1848). The ﬁrst edition, published in 1836, was written by a man whose lawyerly skills had been sharpened by his years as reporter with the Supreme Court of the United States (1816-1827) and as co-drafter of the new constitution of New York State. But his career broadened with his involvement in diplomatic service in Denmark and Prussia. His scholarly interests widened further to include the history of the Nordic peoples, and it was Wheaton who ﬁrst made the case for the pre-Columban (Viking) discovery of the eastern seaboard of North America. So, as noted by Wilson (1936), his “education, training in the law [and] contact with men at home and abroad qualiﬁed him ... to take a broad view of the subject [of international law], while appreciating the importance of its technical aspects”. The 1836 edition of Wheaton is, understandably, strongly inﬂuenced by the perceptions of previous, mostly European, writers on the law of nations. After a historical introduction that breaks no new ground, he introduces the law of nations, in the Grotian manner, as springing out of two sources: “rules of justice ... binding on men living in a social state, independently of any positive laws of human institutions (... in a state of nature)”; and “those rules, under the name of Natural Law” applied to “the mutual relations of separate communities living in a similar state with respect to each other” (Wheaton, 1836). However, it was the 1866 version of Wheaton’s Elements, edited by Richard Henry Dana, Jr., that became most frequently cited throughout Europe and the American hemisphere. By then more attention was given to principles applied in adjudicated cases (res judicata) than to the doctrines of natural law that had been a conspicuous feature of the author’s ﬁrst edition thirty years earlier. By the third edition, which Wheaton published in 1846, two years before his death, the author himself had introduced important changes that mirrored the shifting perceptions of jurists. The term “law of nations” was dropped entirely in favor of the phrase “international law” that Jeremy Bentham had suggested in the previous century. The characterization of international law as a “positive science” was adopted, although Wheaton acknowledged its “imperfection” more candidly than some of his contemporaries. By the time of the 1866 edition, the pre-Grotian contributions to the development of international law have dropped out of sight along with the earlier invocations to the law of nature. Given the absence of a “legislative power” in the “society of nations”, it is conceded, in Dana’s version of Wheaton, that “there are no express laws, except those which result from the conventions which States may make with one another”,

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and it was “impossible that there should be a code of international law illustrated by judicial interpretations”. The gaps had to be ﬁlled by “principles of justice”, which admittedly were perceived diﬀerently by jurists discerning. By then, in short, Wheaton was held out by Dana and other editors as a positivist, but one whose list of “sources” included the expert opinions of legal advisers. Sceptics to day might question whether the treatises of the 19th century truly reﬂected the realities of the arena. They can be characterized as personal contributions to a branch of ethical literature, which consisted of more or less shared perceptions of rules believed to be binding on nations, or at least on “civilized” peoples represented by sovereign states. Despite claims to “scientiﬁc” status, the discipline was based on a shared scholarly imagination as much as on a systematic eﬀort to establish the evidence of rules that had actually secured the consent of states and peoples. The system of rules was largely notional: discerned rather than demonstrated. Yet, as we have seen, many of these scholars were not detached from the diplomatic community. By the later decades of the century, many jurists were acquiring additional roles of one kind or another – as codiﬁers, dispute settlers, or legal advisers – supplementing their function as writers and teachers. Moreover, the practical inﬂuence of educational works is diﬃcult to determine. By the late years of the 19th century the teaching of international law was widely established throughout the Western world, and just beginning to be introduced in non-Western countries such as China, Japan, and Thailand. In one celebrated instance, the author of a standard Western treatise was to make a posthumous leap across the widest cultural abyss of all. Henry Wheaton died in 1848. In that year William A. P. Martin (1827-1916) was still a student at the University of Indiana. Although the son of an emotional Presbyterian preacher, William possessed a diﬀerent temperament. At Indiana he enrolled in a liberal arts program that included many scientiﬁc subjects: astronomy, chemistry, mathematics, and chemistry (electricity, heat, mechanics and optics). As a senior he was exposed to the Scottish philosophic school of “common sense” led by Thomas Reid and Dugald Stewart, who admired experimentalists like Francis Bacon and Isaac Newton. Although he was to build a career as a devout, if non-doctrinaire, Calvinist missionary in China, he never lost his faith in the universal value of rational inquiry. When he arrived in the treaty port of Ningpo in 1850, Martin was well received locally despite lingering anti-Western resentments in Canton and other Chinese cities after the Opium War of 1839. On mastering both Mandarin and the local language, he began to attract fairly large attendances to his sermons. Although the number of converts remained disappointing, he saw in the Taiping rebels a hope for the Christianization of China. Despite the primitive beliefs of the “God Worshippers”, he felt that, as genuine reformists, they should be given a chance to mature. But by this time Martin was already out of harmony with the much more dogmatic mainstream of the missionary movement in China (Duus, 1966). Frustrated, Martin in 1858 oﬀered his services as an interpreter/translater to the US diplomatic mission in China, ﬁrst to the Minister Thomas B. Reed , and then to his successor John E. Ward, who were engaged in treaty negotiations with the Chinese mandarinate. It was in that early phase of his career that Martin became

The Ruling of the Modern World (1815-1905)

acquainted with Sir Robert Hart, the Acting Inspector-General of the Imperial Maritime Customs (Wright, Stanley, 1950). Martin learned that Hart had just arranged for the translation of portions of Henry Wheaton’s Elements of International Law for the beneﬁt of Chinese government oﬃcials. Both Hart and Marin felt that the Chinese leadership must save the country from its backwardness by becoming familiar with modern western practices in international relations. Wheaton’s work had become a standard textbook, widely respected throughout Europe as well as the American hemisphere. Hart, no doubt, had wholly secular beneﬁts in mind, but Martin hoped also that Wheaton’s account of international law would bring to China insights into the beliefs and values of Christianity. With the support of the American Minister Anson Burlingame (Williams, 1912), Martin began to translate Wheaton into Chinese. After initial reluctance to accept instruction on barbarian rules of conduct, the ﬂedgling foreign ministry in Peking (the Tsungli Yamen) agreed to commission the work, and supplied Martin with four assistants to help with the translation. Soon after its completion, it was found useful to cite Wheaton on the laws of capture at sea, when the Chinese authorities were able to persuade a Prussian warship to release three Danish vessels it had illegally seized in high seas oﬀ the Chinese coast, adjacent to the port of Tientsin. Vindicated in its worth, Wheaton was distributed to Yamen oﬃcials in Peking and to mandarins who had to deal with wayward foreigners in the treaty ports. The completion of the translation was considered worthy of a special note from Ambassador Burlingame to the US Department of State. “The Chinese did not address me in writing, but called in person to mark their sense of the importance of the completion of the work, and when the Prince and suite kindly sat for their photographs, Fung Sun, who had supervised the translation, desired to be taken with a copy of Wheaton in his hand” (Wilson, 1936). The ﬁrst edition of the Chinese translation was quickly sold out, and a special version of the Chinese text was also well received in Japan and other Asian countries with a scholarly elite versed in the Chinese language. From that point, Martin ceased to draw a salary as a missionary and concentrated on an educational career with the T’ung-wen Kuan, an institution which was originally conﬁned to the training of interpreters but, on Prince Kung’s direction and with Hart’s encouragement, was broadening out to a curriculum in “Western studies”. International law became a subject of instruction, focussing on Wheaton’s Elements, though the students shone especially in the scientiﬁc courses. Between 1870 and 1916 Martin was President of the T’ung-wen Kuan, and remained a respected, if not truly inﬂuential, ﬁgure at the upper echelons of the Chinese bureaucracy. He published in Chinese a study of International Law in Ancient China in the hope of de-Westernizing the “import”, and he returned to the teaching of international law to junior mandarins at the end of his long life of tolerance and moderation as a Christian idealist in a foreign land. It is diﬃcult to overlook the similarities between William Martin and the great Matteo Ricci. They were not overlooked by Prince Kung himself. Admittedly Martin could hardly be said to match the intellectual genius of the famous Jesuit of the late 16th century; and Ricci never found anything like a 19th century conﬁdence in the su-

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periority of Western civilization. Yet, three hundred years apart, both men followed the same tripartite strategy: “a ﬂexible tolerance toward the existing framework of Chinese culture, an appeal to the rational in prospective converts, and an eﬀort to win the support of the ruling class before proceeding to the masses” (Duus, 1966). For both, their emotional commitment to Christianity may have been less intense than their intellectual commitment to Western secular culture. The Codiﬁers. As we have seen, the ﬁrst intergovernmental peace congress held at The Hague in 1899 attracted a substantial number of “legal internationalists”. Their principal purpose in attending was to further the development of international law through the establishment of a permanent system of international arbitration, and this was basically accomplished in the Third Commission. That campaign, however, was part of a much larger movement in the Western world to secure a lasting peace. This elusive goal was to be pursued in several ways: not only through a global system of peaceful settlement, but also through a congress of nations, a strategy to eliminate or at least limit war, an eﬀort to “humanize” the methods of warfare of a special protective regime for war victims, and, not least, a codiﬁcation of the law of nations. To the extent that these were overlapping objectives, the idea of international codiﬁcation could be said to be one aspect of the age-old vision of a perpetual peace that had been endorsed since the early 17th century by writers and doers such as Pierre Dubois, Emeric Cruce, Hugo Grotius, the Duc de Sully, William Penn, the Abbe de Saint-Pierre, Jean-Jacques Rousseau, Jeremy Bentham, and Immanuel Kant. But the notion of legal codiﬁcation in general is of much more ancient origin, dating from the time of Hammurabi, the king of ancient Babylon, and of the Twelve Tables in the earliest period of Roman history. In more modern times, we can trace a continuous line of intellectual commitment to the codiﬁcation of rules for international society as part of the agenda for world peace. This ideal was reﬂected in encyclopedic 19th century philosophers like James Mill (1773-1836), who followed Bentham, in jurists such as Johann Caspar Bluntschli (1808-1881), David Dudley Field (1805-1894), and Pasquale Fiore (1837-1914); and in the work of academic and professional organizations such as the Institut de Droit International and the International Law Association. Jeremy Bentham (1748-1839), architect of the utilitarian pillar of moral philosophy, might be taken as the pioneer in articulating the case for modern international codiﬁcation. He was, above all, a brilliant critic of failed institutions. In that capacity, he was the ﬁrst to propose a written code to replace the assemblage of international customs, which were the principal evidence of the law of nations in the 1780s. It was Bentham who coined the term “codiﬁcation”, as well as the term “international law” as a substitute for the “law of nations”. In his Principles of International Law, published originally as a series of essays between 1786 and 1789, Bentham argued that there could be no progress toward the goal of developing international law usefully on the model of national law except by removing it from the realm of scholarly speculation through the practical task of codiﬁcation (Nys, 1885). For Bentham, the utility of a legal system is the certainty of expectations that it engenders in society. He believed that a codiﬁed system of laws could be “framed

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so as to be easily understood and readily administered, and it might also have the desirable eﬀect of getting rid of the legal profession and the ‘demon of chicane’” (Atkinson, 1971). The international code he envisaged would consist of two parts: the “substantive” laws of peace and the “adjectival” laws of war. Ideally, the code should be complete, “requiring no commentary and consisting of the fewest possible general rules in which a whole system of law could be expressed a logical order in an unambiguous terminology” (Dhokalia, 1970). The main elements of his proposal were summarized in his “Plan du code international”, a chapter in his Traite de legislation civile et penale, which was ﬁrst published in Paris in 1802, perhaps as a tribute to the Napoleonic project for the codiﬁcation of French civil law. Behind Bentham’s proposal it is not diﬃcult to ﬁnd the positivist’s impatience with the vagueness of the natural law tradition and discomfort with the primacy that had been accorded to customary principles. For Bentham, law was a dynamic phenomenon that would respond, in the absence of artiﬁcial constraints, to the changing needs of society. The work of codiﬁcation was, therefore, also the work of law reform. An international code would have to be more than simply a restatement of existing rules. It would be a rational and progressive contribution to civilization. The codiﬁers who followed Bentham through the early decades of the 19th century were individuals cast in a somewhat similar, conceptualistic, mold. Most of the earlier private proposals were succinct, “limited to setting forth major guiding principles which, moreover, inclined towards natural law doctrines” (Rosenne, 1984). Later, the Crimean War (1854-1855) created a new wave of revulsion among paciﬁsts and other idealists, and gave rise to a succession of much lengthier and more elaborate private codes. Two of the more ambitious codiﬁers in the second half of the 19th century have been underrecognized by posterity. In his Precis d’un Code du Droit International (1861), the Hungarian jurist Alphonse de Domin-Petrusevec (1835-1871) elaborated 1236 articles; and the mammoth code produced by the Canadian Jerome Internoscia (1869-1930) included no less than 5657 articles elaborated in a trilingual (English-French-Italian) text of 979 pages (Internoscia, 1910). In the arena, the example set by the 1815 Congress of Vienna stimulated a more ambitious agenda for collective diplomacy, which increasingly included proposals containing some of the “elements” of modern codiﬁcation, such as the prohibition of privateering in the Paris Peace Treaty of 1856 after the Crimean War and the rights of wounded soldiers, prisoners and non-combatants set out in the Geneva Red Cross Convention of 1864 (Rosenne, 1984). By the time of the Hague Peace Conference of 1899 there was already something of a presumption in favor of the idea that stats had an obligation to move, at least gradually, toward an oﬃcial process of international codiﬁcation. Before the 20th century, however, it remained politically unrealistic to suppose that governments could undertake such a task, especially as the growing complexity of international law was becoming more apparent. Surprisingly, the ﬁrst governmental body to endorse the need for international codiﬁcation was the legislature of the state of Massachusetts. As early as the ﬁrst decade of the 19th century, a number of “peace societies” began to appear, initially in New York, then Massachusetts and Ohio (1815), England (1816), France (1821), and Switzerland (1830). The American Christian paciﬁsts were particularly active in

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pressing the case for international codiﬁcation in Europe. When the Societe des Amis de la Morale Chretienne et de la Paix was formed in 1821, it was the American judge and peace activist William Jay who was elected its ﬁrst honorary president: and it was the Massachusetts Peace Society that inspired the legislature of that state in 1838 to call for a congress of nations for the dual purpose of developing a code of international law and a system of international arbitration. Of the two individuals who stand out especially as inﬂuential advocates for international codiﬁcation, one, David Dudley Field, was an American. After several years of separate existence, the peace societies of New York, Massachusetts and Ohio merged, along with other organizations, into the American Peace Society. Driving it forward into the international arena, Field became a familiar ﬁgure at European gatherings. As one of the earlier proponents of codiﬁcation of certain sectors of American law, he also had standing within the US legal profession. He was a remarkably proliﬁc advocate of law reform (Sprague, 1884). For Field, international codiﬁcation was not so much of an utopian dream as a practical legal task, albeit a challenging one that would have to be sustained by vision. The case for codiﬁcation was believed to be obvious. As one of the co-drafters of the civil code of the state of New York, Field made the same argument as for a written constitution. “There are those who argue that an unwritten law is more favorable to liberty than a written one. The contrary should seem more consonant with reason. It can scarcely be thought favorable to the liberty of the citizen that there should be government by laws of which he is ignorant, and it can as little be thought that his knowledge of the laws is promoted by their being kept from print or from authentic statement in a written form” (Field and Bradford, 1965). Field’s views seemed compatible with the visions of several European jurists of his acquaintance. Perhaps the most illustrious of these was the Swiss scholar Johann Caspar Bluntschli. Together he and Field played a crucial role in the formation of the Institut de Droit International at Ghent in 1873. Like Field, Bluntschli turned to international law after establishing his credentials in law and politics at the national level. His erudition extended further into the ﬁelds of theology and psychology. Again like Field, his enthusiasm for codiﬁcation had been put to the hard test of drafting a huge body of civil law – in his case for the canton of Zurich. He saw no reason why international law could not be codiﬁed in a similar fashion (Koskenniemi, 2001). But it was at the meetings of the Institut that advocates of codiﬁcation like Field and Bluntschli would have to contend with contrary opinion. The ﬁrmest contrarian was the Scottish scholar James Lorimer (1818-1890), an enigmatic but prophetic ﬁgure in the history of world order. At the University of Edinburgh Lorimer had been inﬂuenced, inescapably, by the formidable philosopher Sir William Hamilton (17881856), that “monster of erudition” who had succeeded Dugald Stewart in the chair of logic and metaphysics. Later, Lorimer would acknowledge the even greater impact of his science teachers in Berlin and Bonn. The combined eﬀect of his mentors was to instil in Lorimer a taste for “holistic” thought that would suggest the need for an ambitious architectural role within the ambit of the natural law tradition. Law was seen to be the product not of anything so abstract as reason, or so speculative as divine intention, but of human nature and experience (Campbell, 1953).

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Lorimer has not been spared by his positivist critics. He has been viliﬁed for his obsession with law as it ought to be, rather than with law as it actually, and sadly, is. His conception of “enlightened self-interest” has been impugned as less benevolent than that of Adam Smith, or at least less altruistic than that of the author of The Theory of Moral Sentiments. He seems less a disciple of Darwin than a victim of the popular corruption of the theory of adaptation, the “survival of the ﬁttest”. He might even be seen as a reﬂector of the darker side of the Scottish culture (Johnston, 1978). Despite his exposure to the ideals of the Enlightenment promoted by his Scottish mentors, his works do not suggest the workings of a tolerant mind. Yet, though attached to many of the social and political biases of the Victorian era, Lorimer might be said to have exceeded his contemporaries in his capacity for independent judgment and logical development, and in his occasional display of prophetic ﬂair. We look back on Lorimer, as on almost all of his contemporaries, as an unreconstructed statist: indeed as a defender of state entitlement. He was content to deﬁne the ultimate object of international law as “the realization of the freedom of separate nations by the reciprocal assertion and recognition of their real powers” (Lorimer, 1980). He argued that all nations are entitled to be recognized as states, though not necessarily as equal states. Yet he cannot be accused of glorifying the state to the detriment of the individual (Jenks, 1940). Indeed, unlike most of the international law community of the late 19th century, Lorimer denied primacy to the concept of state sovereignty. Instead, in a manner more familiar in the late 20th century, he emphasized the interdependence of nations, drawing the ethic of dependency from his application of the law of nature. He argued strongly for a congress of nations, but, as a disciple of the Scottish philosophic school of “common sense”, he was convinced that there could be no eﬀective system of international law without the sanction of adequate force. Perpetual peace was seen to be an impossible dream “during any period of time, or under any condition of which jurisprudence can take cognizance”. Lorimer rejected the idea that voluntary arbitration could be expected to provide an eﬀective solution to the problem of peaceful settlement. The notion was rejected essentially because he distrusted anything that seemed to depend on permanence in human affairs. Permanence, he wrote, is “an object which nature has forbidden to humanity, and for the attainment of which human forces will combine in vain” (Lorimer, 1980). So, by his own premises, he was quite logical also in denouncing the fashionable idea of codiﬁcation that seemed to place misguided trust in a permanent ﬁxture. He denied that disorders in world society could be removed by anything as facile as a text. The Franco-Prussian War had been a disturbing disillusionment to the humanitarians who had inspired and supported the 1864 Red Cross Convention. Neither side had complied in good faith with its provisions. The situation was seen by a number of peace activists to create an urgent need for action by the international law community. The lead was taken by the Belgian Gustave Rolin-Jaquemyns to organize a meeting of concerned jurists. His correspondents included Gustave Moynier of Switzerland, Bluntschli, Field, Carlos Calvo (the Argentinian diplomat then living in Paris), and Pascual Mancini of Italy. The consensus was to go beyond a mere meeting to the establishment of a permanent organization whose membership would consist of as many as possible of the forty or more most prominent Europeans with profes-

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sional experience in international law or diplomacy. Of the 33 invited, eleven arrived at Ghent for the inaugural meeting of the Institut under the presidency of Mancini. Lorimer was one of those in attendance, and another was Tobias Asser of the Netherlands. Bad health prevented John Westlake, the Whewell Professor of International Law at Cambridge, from participating, but Montague Bernard consented to come down from Oxford. Many of the organizers of the Ghent convention had at ﬁrst been enthusiastic about the Benthamist codiﬁcation proposal put forward by Field and the other American reformists, but they began to back oﬀ when they realized that it went considerably beyond the task of mere restatement that they had had in mind (Koskennieni, 2001). Bluntschli himself continued to hope that codiﬁcation of the admittedly “dynamic” system of international law would be at the center of the Institut’s projects, but others were less committed to that task, and some were unmistakably hostile. Bernard was apparently out of sympathy with the cause of codiﬁcation, which he dismissed as “little better than a chimera”. Lorimer venerated Bluntschli, “the greatest international lawyer of our time”, as a scholar immersed in the humanities and sciences alike – not a philistine like the utilitarians and positivists who occupied the mainstream of English jurisprudence during his lifetime – but his “common sense” logic found the great man’s concept of codiﬁcation repellent. As the post-Ghent years unfolded, the Institut’s approach to that task became increasingly cautious, eventually approaching, if not reaching, Lorimer’s level of scepticism (Johnston, 1978). The Dispute Settlers. Those who were called upon to settle international disputes in the 19th century were only rarely those engaged in the writing of treatises on the law of nations or in the development of proposals for its codiﬁcation. As we have seen, it was Great Britain and the United States that pioneered the use of joint arbitral tribunals (or commissions) within the framework of certain treaties, such as Jay’s Treaty and the Treaty of Ghent. That kind of mechanism was used mostly – with a few notable exceptions – to resolve diﬀerences arising between private individuals who were nationals of the two treaty parties. Later in the century it became common for other countries to follow suit by including arbitration clauses in their treaties with one another, usually for the settlement of private claims but sometimes also for the resolution of formal inter-state disputes. In all of those cases, there was no challenge to the international status of these tribunals. However, there is a much more ancient tradition of eﬀorts to settle “international disputes” at the national (or local) level through the use of prize courts. Under the old law of nations, as early as the Middle Ages, all European countries agreed to recognize the existence of belligerent rights, which included the right to capture as “prize” the property of enemy states and their nationals: that is, enemy ships and cargoes. Usually that right was exercised at sea by warships, auxiliary vessels (e.g. colliers), and merchant ships converted into warships, but occasionally it was extended to rivers and lakes, and even beaches in some situations (Johnson, 1982). It is extremely diﬃcult to summarize the technical rules and procedures of prize law. The tribunals used to determine “prize or no prize” were wholly national in origin and composition, and they went in diﬀerent directions. Their jurisdiction owed

The Ruling of the Modern World (1815-1905)

nothing to treaties or international customs. They were part of the national (or “municipal”) system for the administration of justice. Since these systems were wholly independent of one another in the 19th century, they pursued their own course of jurisprudential development without much concern for consistency or even compatibility. At least in theory, however, the British and American prize courts claimed to function as “international” tribunals to the extent that they were responsible for applying what was purported to be a branch of the law of nations. A famous British jurist who specialized in that ﬁeld, Sir William Scott, insisted that the British Prize Court was “a court of the law of nations” and, as such, obligated to decide questions submitted to it in the same way as of adjudicating in Sweden or Germany or anywhere else. But it was an international tribunal “only in the sense that it was charged with applying international law and of administering justice between nations; in short, it was international in its mission, but national in organization” (Garner, 1927). Similarly, the law administered by the prize courts of the United States was declared to be international law. In a famous ruling, it was held that no act of Congress ought to be construed to violate the law of nations “if any other possible construction remains” (Colombos, 1967). This similarity of perception on both sides of the Atlantic should not surprise, since the maritime law of the United States throughout most of the 19th century continued to be based on the English common law tradition, from which it was descended. Indeed the prize law of both countries was deeply inﬂuenced by important decisions of the US Supreme Court, including those of prominent jurists such as Chief Justice John Marshall and Justice Joseph Story. The prize courts of other countries, such as Germany, France, Russia, Italy and Sweden, made less of the claim to have an international function, though most adjudications in prize law had, of course, an international element by the nature of the issues at stake. Accordingly, the prize courts outside the Anglo-American world had less doctrinal agony to contend with. By and large, they accepted their primary responsibility to their own statutes and to the principles of their own civil and commercial law. In practice, the gulf between the common law and civil law systems in the prize law ﬁeld was not as wide as theory suggests. Text writers who have ventured to suggest a pattern of consistency within each system are wide of the mark. Whatever the theory might be, it became notoriously diﬃcult to predict the outcome of adjudication of competing claims arising out of maritime capture. Despite the eminence of authorities at the apex of the judicial hierarchy, most decisions were made at the local level, where doctrinal ignorance, national bias, or personal corruption often marred the appearance of fair dealing. The diﬃculties in the prize courts of ﬁrst instance were compounded by their availability to privateers as legitimate claimants to prize, and by conﬂicting policies and sentiments on the legitimacy of “neutral rights”. Privateering seemed to be in decline in the 18th century, but it revived under the temptations of spoil that arose from the Napoleonic Wars, especially for French privateers operating out of American ports to plunder British vessels in the Caribbean and adjacent waters. The prospect of anarchy at sea induced a number of countries to agree, through bilateral treaties, not

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to issue any more commissions (“letters of marque” or “letters of reprisal”) to private armed vessels (Scheuner, 1982). In fact, the practice of granting such licences had virtually ended before it was ofﬁcially and formally abolished by the 1856 Declaration of Paris that accompanied the peace settlement which ended the Crimean War. The purpose of the Declaration was to allow all neutral countries in time of war to continue trading with all belligerents, except in the case of blockade and contraband. But time was to show the inadequacy of this simple solution. One – but only one – of the problems was that the United States declined to accede to the Declaration, objecting that it could not comply unless private property at sea would be legally protected from seizure by public armed vessels as well as by privateers. As the leading naval power of the day, Great Britain was not prepared to surrender the right of its warships to seize enemy goods on neutral ships. The weakness of the Declaration became transparent during the American Civil War, when the Supreme Court of the United States twice upheld the condemnation of captured British cargoes: one of contraband and the other of non-contraband goods. Indeed, prize law continued its irregular course well into the 20th century, long after the ﬁnal disappearance of privateering, persisting as long as the concept of neutrality continued to seem relevant to modern forms of warfare (Johnson, 1982). The basic inconsistencies of prize law precluded the degree of uniformity normally associated with the concept of international law. Yet some national prize courts did often purport to be applying the law of nations, and in so doing contributed to the notion that municipal tribunals in general could become important role-players within the inter-state framework of world law. Few of the international arbitrators of the 19th century have been rewarded with recognition by posterity. It is a mode of judicial (or quasi-judicial) settlement that rarely captures the limited glamor or publicity accorded to formal proceedings before a permanently established international court of law, even within the legal profession. It may be that most 19th century arbitrations were kept out of the sunlight so that they could operate more eﬀectively, free from political inﬂuences, known only within the circle of fellow technicians. But how diﬀerent would this prove to be in the 20th century, when international courts came into their own? The Legal Advisers. The 19th century gave birth to most professions in something like their contemporary form. Not least, it was the period between 1815 and 1905 that witnessed the transformation of bureaucracy into a professional service, consisting of men (and eventually women) permanently employed to serve their country as oﬃcials of the nation-state. The development of modern bureaucracy as a public service in the mid-to-late 19th century was to have a profound eﬀect on the conception of international law and on its application to issues in inter-state diplomacy. As we have seen, a number of diﬀerent bureaucratic traditions had jelled, East and West, long before the age that we associate with “professionalization” and “specialization”. It would not be accurate to characterize those earlier oﬃcials as “amateur”, much less as conspicuously venal or ineﬃcient. Within their own time they made a crucial and regular contribution to the stabilization of society, and to the realization of a degree of order in inter-state relations.

The Ruling of the Modern World (1815-1905)

The role that the law of nations has played in the operation of foreign policy in early modern history may be underestimated. “It is a delusion aﬀecting the minds of many laymen and not a few lawyers that governments in the conduct of foreign aﬀairs act independently and capriciously and without reference to legal principle” (McNair, 1956). These words of half-a century ago may be worthy of repetition, for cynicism is always in vogue. For many centuries the voice of the legal adviser has been sought out by “well-established” states. At least “the ordinary, routine, non-political business of the world is carried on by Ministers of Foreign Aﬀairs and their diplomatic agents against a background of law”. The governmental practice of soliciting legal opinion on questions of international law can be traced back at least as far as the 16th century, but it was not until the 19th century that bureaucracy became the vocational setting for the world’s ﬁrst oﬃcial practitioners of international law. It was in the sector of government service, and in the diplomatic arena, that the ancient theories of the law of nations would be required, on a regular basis, to meet the practical tests of political acceptability and operational feasibility. But the placement of the law of nations in a permanent and professionalized bureaucratic setting shaped the perception that international legal theory had to be re-thought. Especially in matters of “vital national interest”, the international legal system came to be seen less as a corpus of the broad principles of natural law, and more as an accumulation of state practices based on the actual or presumed consent of the sovereign powers. Inevitably, the ﬁrst oﬃcial practitioners of international law were drawn into the “positivist” frame of reference. On the continent of Europe – the spiritual home of the law of nations – the publicists of the early 19th century still perceived the law of nations, quite accurately, as the logical outgrowth of the civil law and canon law traditions. Expertise in the law of nations was to be found principally in the scholarly community. It was the jurists in the “tower” who were depended upon by sovereigns to deliver legal opinions on request. They were jurisconsultants rather than “legal advisers” in the modern bureaucratic sense. Opinions could be oﬀered without a sense of obligation or loyalty to an employer. The gradual emergence of the professional legal adviser to foreign ministries is a relatively modern feature of bureaucracy, and it is most easily traced in the early modern history of British government operations. In Tudor England, as Corbett (1959) reminds us, the law of nations was not normally called in to guide the course of justice when the highest stakes were involved. At the treason trial of Mary Queen of Scots it was only the common law of England that was invoked initially as the basis of prosecution. As a sovereign person outside that ambit, Mary demurred. Her prosecutor, Sir Christopher Hutton, tried to bring her round to a more reasonable view of the proceedings by reaching further out. “You say you are a Queen: be it so. However, in such a crime as this the Royal Dignity itself is not exempted from Answering, neither by the Civil or Canon Law, nor by the Law of Nations, nor of Nature. For if such kind of Oﬀences might be committed without punishment, all Justice would stagger, yea fall to the ground”. In comparable circumstances with an “international” element, eﬀorts to prevent the staggering of justice in Queen Elizabeth’s time were made by bringing in “Doctors

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of Law”, who were invariably doctors of the civil law, usually occupying chairs at Oxford or Cambridge. These civilians were often acquainted with compatible principles of the canon law, but such an ecclesiastic connection would soon have a rapidly diminishing appeal with the settling in of Protestant rigor in the application of English justice. Civilians in general, and canonists in particular, were easy targets for zealots quick to spot trouble-makers with papist leanings. Within the embrace of the Church of England, however, a small elite of civilians with a knowledge of the law of nations rose to a senior level of the royal administration in the 17th century: jurists such as Sir Julius Caesar, Sir Leoline Jenkins, and Sir Edward Stanhope, mostly renowned for their contributions to the development of admiralty law concerning maritime capture and related issues (Levack, 1981). From 1608 to 1872 the Crown’s own internal adviser on such questions was the King’s (or Queen’s) Advocate, who was almost always a civilian and a member of Doctors’ Commons. It should not be surprising, however, that the primacy accorded to civil law specialists in matters of international law was soon subjected to the “envious onslaught” of the common lawyers. In the mid-17th century, a new practice of even-handedness became discernible. In 1654, when the brother of the Spanish ambassador in London was accused of murder, the Cromwell government solicited legal opinions on the applicability of immunity doctrine from no less than seven jurists: three common law judges, two judges of the Admiralty, and two doctors of civil law. All found that Don Pantaleo de Sa was not entitled to immunity. He was subsequently convicted of “murder and felony”, and executed (McNair, 1954). Between 1670 and 1680 the English government requested numerous legal opinions on international law issues from Sir Leoline Jenkins (1623-1685), judge of the Admiralty Court, ambassador, and Secretary of State. Later, on issues related to piracy, prize, treason and other concerns, diﬀerences often arose between the Doctors and the Admiralty, forcing choice upon reluctant statesmen. Increasingly, the King’s Advocate became the key adviser, but as the 18th century progressed, the courtesy of consulting with the Attorney -General was gradually converted into something like a customary requirement, at least in matters of particular importance. In 1782 the conduct of international aﬀairs in London was entrusted to a separate department known as the Foreign Oﬃce. Thereafter, all opinions on questions of international law were given directly to that agency. In the years following, the leading English expert on international law was Sir William Scott, later Baron Stowell (1745-1836). Scott became the leading authority in prize law as Judge of Admiralty Court. Many of his rulings acquired authoritative status, especially in the Anglo-American world where his decisions were frequently invoked and developed by Justice Joseph Story, the eminent American jurist. It was Scott who ruled that a blockade had to be eﬀective in order to be binding – an early example of “functionalist” reasoning; and it was his view that a prize court is a court of the law of nations. But Scott also gave numerous opinions to the Crown, as King’s Advocate, on international legal issues outside the maritime context. Indeed, even as a prize judge, Scott frequently ruled on unrelated matters such as the acquisition of title to territory, the interpretation of treaties, and the application of the law of nations to non-Christian states. This practice was followed by several of Scott’s successors as

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King’s (or Queen’s) Advocate until the termination of that oﬃce on the retirement of Sir Travers Twiss in 1872. After the mid-1880’s, advice on questions of international law was provided almost exclusively by a resident, full-time Legal Adviser, within the Foreign Oﬃce, beginning with Sir James Parker Deane. By the end of the 19th century it was becoming clear that there were several ways for national governments to obtain legal advice on matters of international law. As Merillat (1964) describes, there are now four basic methods, and of course a number of variations or combinations. Some governments still “send out” for advice from a private practitioner or university professor – or bring in a “visiting professor” on a part-time or temporary basis. A second method is to centralize all legal advice – on national as well as international issues – in one ministry, such as an attorney -general’s oﬃce or a ministry of justice. Under an alternative system, the centralized government legal service appoints specialists to work in various departments, including the foreign ministry, but retaining control over these seconded oﬃcials. Finally, there is the “house counsel” method, whereby the foreign ministry employs its own staﬀ of legal advisers, either as a separate sector of the ministry or as a stream of law-trained foreign service oﬃcers who rotate between strictly legal work and the work of regular diplomatic representatives. Arguments can be made in favor of all these methods or their variants (Fitzmaurice, 1965). Often the arguments come down to whether the highest value is assigned to the detachment of the tower or the practical insights of the arena (Macdonald, 1977). Legal advisers generally are fated to remain obscure ﬁgures outside their profession. Admittedly, some occasionally do break into the public consciousness. Pierre Elliot Trudeau, after his dilettante years, started out as a legal adviser to a trade union federation in Quebec before becoming the most visible of Canada’s prime ministers. But building a career on technical expertise is rarely a pathway to public renown. In most countries the legal advisers to their foreign ministry are likely to remain anonymous players, as far as the general public is concerned, although the most senior may eventually be rewarded with a knighthood, as in the case of the Legal Adviser to the British Foreign Oﬃce. Publicity is rarely the reward – or punishment – for a civil servant. The Negotiators. Usually, anonymity is also the fate for professional negotiators at the level of inter-state diplomacy. Today, in the early 21st century, we have beneﬁtted from the development of a huge and often sophisticated literature on the theory and practice of negotiation, mostly drawn from research in social and behavioral science. Much of this literature is designed to facilitate negotiation in situations of industrial or social conﬂict, but formal negotiation has its origin in diplomatic history. Most modern theorists of negotiation may agree that a common core of elements can be found in any such process regardless of its setting. Negotiation in general can be characterized as a verbal, interactive process of communication and persuasion by which two or more parties with diﬀerent interests attempt to reach an amicable agreement. In many diplomatic situations, the focus may be on a “problem”, “conﬂict” or even “crisis”, but often today the process is a routine rather than dramatic encounter, attended by professional diplomats who are not necessarily closely supervised by

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their political masters. Negotiation is the work of a professional bureaucratic elite intimately acquainted with the politics of the “arena”. The role of negotiators is quite distinct from that of bureaucratic colleagues responsible for the provision of international legal advice, although the latter are often involved in negotiations, particularly in bureaucratic systems where the international lawyers are also foreign service ofﬁcers. As we have seen, the second half of the 19th century witnessed a remarkable expansion of treaty-making, but only as a precursor to an even more remarkable explosion of consensual interaction throughout the 20th, as the diplomatic community moved closer to universal scope. Even in the ﬁnal decades of the 19th century, the diplomatic service was still in the early stages of professionalization. A high ratio of treaty initiatives, by present-day standards, belonged to the category of “political” agreements that required the personal attention of the Minister or Secretary of Foreign Aﬀairs, who was usually an autonomous actor in the conduct of his government’s foreign relations. The chief negotiator on such occasions was truly a plenipotentiary, possessing full powers of decision-making at one end of the negotiating table. By the end of the 19th century, it was becoming more common, especially in “technical” negotiations, for the teams to be headed by professional, non-political, counterparts drawn from the foreign ministry or an alternative government agency. In such situations, the chief negotiators, however senior within the bureaucratic hierarchy, were often serving as agents for their government, rather than as autonomous actors. Yet, since the diplomatic system was expanding geographically – before the invention of the airplane – it frequently was necessary for the government oﬃcials back home to put their trust in their resident ambassador. To be entrusted with plenipotentiary powers far from home was becoming a proof of the envoy’s professional standing, rather than of his political status. Resident ambassadors of the 19th century were expected on such occasions to display the personal characteristics of the ideal diplomat, as advocated by such as Francois de Callieres (1645-1717), whose advice on negotiating with princes had become a classic (Callieres, 1963) . In practice, the most “eﬀective” negotiators of the 17th and 18th century were less exquisite men with the knack for using power to the maximum advantage of their state, as exempliﬁed by such as Richelieu, Metternich, Canning and Palmerston. Roughness or smoothness in negotiations depended on the relationship between the parties as much as on the envoy’s personal style or on his counterpart’s social status. At the Congress of Vienna in 1815 it was agreed to be necessary, for once and for all, to settle the age-old disputes over categories of diplomatic representatives. Three classes of heads of mission were distinguished: “ambassadors” (legates or nuncios), “envoys” (ministers), and “charges d’aﬀaires”. But a three-fold classiﬁcation was considered an inadequate reﬂection of the nuances of rank. Three years later it was found necessary to insert an additional category between the second and the third, that of “ministers resident”.. Two centuries later, the diplomatic community has lost some of the stiﬀness of protocol and yet there is still a degree of respect, if not reverence, for rank and precedence in many cultural traditions. Within such a respectful profession the negotiator’s status has had some continuing inﬂuence on the process of negotia-

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tions, but the role of the resident ambassador (or envoy) as a negotiator in the 20th century would gradually decline in importance. In the latter part of the 19th century, the “family” ethos of French and German diplomatic missions was still much the same as in the 18th. All of these diplomatic agents saw themselves and their counterparts in other embassies as “members of a cosmopolitan, culturally homogeneous, European family. They spoke a common language, read the same Marten’s Guide diplomatique, defended similar social and political institutions, and fostered a certain consensus on the nature of the international system”. Within that commonly perceived system, they understood the “rules of the game”. Negotiation was civilized by their shared awareness that they all belonged to a distinct society. As Paul Valery has suggested, the diplomatic service of that era belonged to a culture not much impressed by the need for change. “Electricity had not yet lost its wires. Solid bodies were still fairly solid. Opaque bodies were still quite opaque. Newton and Galileo reigned in peace. Physics was happy and its references absolute. Time ﬂowed by in quiet days: all hours were equal in the sight of the Universe. Space enjoyed being inﬁnite, homogeneous, and perfectly indiﬀerent to what went on in its august bosom” (Lauren, 1976). To the contemporary reader, it may seem obvious that the opportunities inherent in the 19th century process of negotiation must have been restricted, in some degree, by the inﬂexibility of diplomatic protocol. It was an era when “the conventions of the eighteenth century were harnessed to the aims and apparatus of the nineteenth (Jackson, 1981). But retired ambassadors diﬀer in their assessment of the inﬂuence of style on the substance of negotiations. The rise of professional diplomacy in the second half of the 19th century coincided with strengthened eﬀorts to institutionalize the quest for international peace. It is difﬁcult to prove, but might be surmised, that the self-image of a “professional” within the diplomatic community of that time was that of an oﬃcial obliged to retain a degree of detachment from the aspirations of the enthusiastic “amateur” – a category that might be assumed to have included the occasional Minister of Foreign Aﬀairs. Scepticism regarding grand designs was surely a common product of that process of acculturation. Surely it was a common professional perception that the only reality was what could be negotiated in the arena. To be pressed into radical endeavors was to be issued with rather speciﬁc, and therefore rigid, instructions; and rigidity was not an admired characteristic in the community of modern professional diplomacy (Anderson, 1993). The Regulators. One of the new “non-political” kinds of international agreements to emerge in the 19th century was the class of “administrative” instruments: that is, instruments designed to establish and maintain inter-state services. The personnel employed to maintain and manage such arrangements might be described as “regulators”. By the late 19th century these agreements had become common, as we have seen; in the technological sector of telegraphic communication and in the regulation of navigation in international lakes and rivers. But the case can be made that the need for international regulation was ﬁrst seen in the context of high seas ﬁshing. Today there are scores of international ﬁshery commissions in existence, mostly with staﬀs employed to implement the management decisions made by the delega-

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tions of the member states. The ﬁrst steps toward the establishment of the modern profession of international ﬁshery regulators were taken as early as 1839. But the earliest international initiatives were tentative. Very little was known at that time about the population dynamics of ﬁsh stocks in the seas, and even less could be surmised about the eﬀects of harvesting on the productivity of commercial species. Fishing disputes had been a chronic anxiety for governments, East and West, for hundreds of years, aggravated by the lack of a clear consensus on the precise seaward limits of “internal waters” and of the “territorial sea” immediately beyond. Soon after 1815, however, there was a jelling of opinion that, however one measured its “baseline”, the territorial sea should be narrow, not more than three or four nautical miles in width. This consensus brought urgency to issues related to the deﬁnition of national waters, and to the problem of regulating international ﬁshing in the waters further seaward, in the “high seas”. One of the earliest modern controversies on high seas ﬁshery regulation grew out of the conﬂict between British and French ﬁshermen in their shared use of the English Channel ﬁshery. In London the decayed state of the British ﬁshing industry was blamed on the French, whose ﬁshing industry had come out of the Napoleonic Wars in better health than its British counterpart. The 1839 Convention for Deﬁning and Regulating the Limits of the Exclusive Right of the Oyster and Other Fishery on the Coast of Great Britain and of France recognized three miles as the “general limit” for a national ﬁshery, but treated the rich oyster ﬁshery in the Bay of Granville on an exceptional basis (Leonard, 1944). The joint commission appointed by the two governments – arguably the ﬁrst international regulators – produced a set of regulations of unprecedented complexity. It was a warning to posterity. Despite the regulations – or conceivably because of them – violations continued, and indeed mounted, in the following years. Many of the problems arose from the limitations of a bilateral agreement purporting to deal with a multilateral problem. The Irish insisted on their right to exercise jurisdiction over the oyster beds beyond the three-mile limit; and the Belgians, clearly unbound by the bilateral settlement, continued to ﬁsh inside the three-mile limit, invoking an older treaty with Great Britain (Fulton, 1911). In an eﬀort to reduce friction, a new Anglo-French convention with simpler regulations, but with a wider geographical scope and more speciﬁc police powers, was concluded in 1867, but the French government failed to enact the legislation necessary to make the regulations enforceable against French ﬁshermen. The 1839 Convention remained in eﬀect, and continued in amended form until the high seas ﬁshery of the English Channel lost most of its commercial appeal in the early 20th century. This was the ﬁrst of many painful lessons to be learned about the diﬃculties inherent in international regulatory regimes: complex and inﬂexible rules tend to be unenforceable unless all parties concerned have a truly common interest in compliance. The competitiveness of high seas ﬁshing has always tended to defeat the prospect of common interest – and it usually still does. In the 19th century another ﬁshing area aﬀected by intense rivalry was the North Sea. The virtual failure of the eﬀort to regulate ﬁshing in the English Channel seemed to oﬀer little hope for better regulation further north, where the stakes were very much higher (Johnston, 1965). Yet the need for common policing policy to reduce ﬁshery conﬂicts at sea was widely

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acknowledged. In 1882 six neighboring states signed the International Convention for Regulating the Police of the North Sea Fisheries at The Hague: Belgium, Denmark, France, Germany, Great Britain and the Netherlands. As a policing initiative, the 1882 Convention might be regarded as a success, although it can be criticized by modernists for failing to address the basic issues that would prove divisive throughout the 20th century. Despite the input of the ﬁrst generation of ﬁshery scientists, the negotiators did not come to terms with the scientiﬁc research needed as the foundation of the regulations; it failed to provide machinery for the exchange of reliable information; and it sidestepped the crucial questions raised by the introduction of large-scale trawling technology (Leonard, 1944). In the larger view of things, however, this instrument was of more fundamental signiﬁcance. It introduced the idea of an “international neighborhood” as a unit of management among three or more adjacent states, based on a common interest in a shared resource. Though not conceived in modern environmental terms, it can nonetheless be considered as a pioneer in the history of multilateral regulatory regimes designed to serve a broadly inclusive “environmental” purpose. Claims to pioneer status in treaty-making turn invariably on deﬁnitions. It might be objected that “multilateral regulatory regimes” have their origin earlier in the 19th century, outside the context of resources in general or ﬁsheries in particular. The most obvious applicant would be the earliest multilateral instrument in the ﬁeld of international rivers and lakes. Indeed the idea that the riparian states bordering on an international watercourse had a shared right of common use had an even earlier origin (Vitanyi, 1979), but the earliest declarations to that eﬀect cannot be considered to constitute regimes in the modern institutional sense, and they certainly did not create a need for international regulators or administrators. If a regulatory regime consists essentially of “common regulations”, a case can be made that this kind of treaty-making ﬁrst appeared in 1804, as an example of Napoleonic innovativeness, in the “Octroi” Convention on the Navigation of the Rhine between France and the German Empire – if one is prepared to accept this bilateral treaty as “pluripartite”. Credit might be given to the associates of Napoleon for the progressive (“common interest”) idea of the freedom of navigation on the Rhine in place of the earlier idea that all sections or sectors of an international waterway are covered by the territorial sovereignty of the riparian states. In Article 5 of the Paris Peace Treaty of 1814, the parties agreed to establish a “regime” of free navigation on the Rhine, and it went much further in mandating the forthcoming Congress of Vienna to institute similar regimes for other rivers which, “in their navigable course, separate or traverse diﬀerent States”: that is, for “international rivers”, or “rivers of common navigation”. However, key questions concerning the meaning of “free navigation” in a shared waterway remained unanswered for many decades despite the extension of the 1814 Vienna regulations to a number of other “pluriterritorial” rivers in Europe (the Neckar, the Main, the Mosell, the Meuse and the Scheldt), to the Danube, and to the rivers of other continents. International bodies were generated at an early stage, such as the Committee on the Free Navigation of Rivers of the Congress of Vienna and the Commission of Riparian States, but their work was not “regulatory” in the modern managerial sense.

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Lesser diﬃculties in applying 20th century terminology to developments in the 19th century arise in the context of telegraphic communication. If we take the view that a regulatory regime is essentially an institutional phenomenon, albeit based on commonly accepted norms, then the true pioneer might be the International Telegraphic Union established in 1865. The call to attend the treaty-making conference was issued by the French government, and twenty European states sent representatives: Austria, Baden, Bavaria, Belgium, Denmark, France, Greece, Hamburg, Hanover, Italy, the Netherlands, Portugal, Prussia, Russia, Saxony, Spain , Sweden-Norway, Switzerland, Turkey and Wurttemberg. Great Britain was not invited because its telegraphic services were still exclusively private enterprises. Invitations were not extended to other continents. Despite the restricted roll-call, the International Telegraph Convention guaranteed the right of telegraphic communication to all! It also conﬁrmed the secret nature of telegraphic correspondence and called for uniform tariﬀs and regulations. Surprisingly, in an age when treaties were almost entirely statist in orientation, the delegations recognized the need to reconcile public and private interests within the ambit of a communications regime, which evolved rapidly into a mixed (public-private) undertaking. Even at the beginning, the legitimacy of commercial interest was conceded, though it was trumped by Article 2, which reserved to states the right to stop any telegram deemed dangerous to security or contrary to law, public order or good morals (Glazer, 1962). Ten years later, in 1875, the United States government was urged by Russia to attend the Fourth Plenipotentiary Conference of the International Telegraphic Union (ITU) in St. Petersburg, despite the fact that telegraphic communications in the United States were still entirely in private hands. As the technology advanced in the last decades of the 19th century, the membership of the ITU expanded, and private telegraph companies were granted the beneﬁts of the Convention and Regulations, and a permanent administrative organ (the Bureau International des Administrations Telegraphiques) was created to provide administrative services on a continuous basis. The universal purposes of the regime were reinforced by the assurance that telegrams to or from a non-contracting state would be treated on the same basis as telegrams between member states. However, as Glazer (1962) notes, the ink on the St. Petersburg document had hardly dried when Alexander Graham Bell in 1876 succeeded in transmitting speech over wires, and, somewhat later, Guglielmo Marconi found a way of transmitting signals without wires. The age of the “radiotelegraph” quickly ensued. The Berlin Radiotelegraph Conference of 1906 and the London Radiotelegraph Conference of 1912 provided the foundation for expanded regulations, and eventually for the International Telecommunication Union (Codding, 1952). These regulatory arrangements and the institutional apparatus created to manage them, and early postal communications, now appear to be the true antecedents of global regulatory arrangements, and the training ground of the world’s ﬁrst international regulators. Reﬂections. The world order system underwent transformation between 1815 and 1905. At the beginning of that period it was still essentially restricted to the traditional law of nations: a corpus of juridical rules and doctrines reﬂecting the European

The Ruling of the Modern World (1815-1905)

traditions of the civil and canon law. Many of the fundamental principles of international law were still seen to be derived from reason or natural justice, from a universal realm beyond the reach of state manipulation. The law of nations in the early 19th century was still accessible to ethicists, humanists, and other non-juristic philosophers. Without institutional apparatus the law of nations in the early 19th century could not be more than a dawn chorus within the tower. By 1905, however, most regarded international law as a specialized area of scholarship, as an area of technical expertise, and as a necessary adjunct of modern professional diplomacy. With the emphasis on state consent, international law was becoming something that could be developed within the arena. The bond between international law and international diplomacy had become organic. In the Age of Evolution the relationship between them was now, and forever, symbiotic. With the appearance of the ﬁrst permanent legal advisers within the foreign ministries of the leading powers, the international community became aware of the elusiveness of international legal principles, now invoked to serve the convenience of diﬀerent, often conﬂicting, conceptions of national or imperial interest. Large chunks of traditional legal doctrine were now open, in theory, to argument and revision within the arena. Yet the dominant nations, still mostly European, were in no doubt that international law existed as a relatively coherent, normative system, and that the power to develop that system in the common interest lay in their collective hands as the holders of sovereign status. Rules of conventional rather than customary origin would become increasingly the engines of systemic growth, fuelled by negotiated arrangements and settlements. International law was ready to become institutionalized, and therefore politicized, through processes of collective diplomacy. From now on, a now-familiar rift in the theory of international law would open up: the divide between conventional international law, the product of empirically observable patterns of state consent, and customary international law, the product of expectations of less obvious consensual origins. The ﬁrst three kinds of role-players reviewed in this section – the text-writers, the codiﬁers, and the dispute settlers – were mostly, if not entirely, operating within existing normative parameters that could be seen to have a long lineage, whether European or universal. Consolidation of established, inherited norms was seen to be the legitimate path to a rule-of-law ideal that placed increasing reliance on the virtue of strict rule-attachment. For many of these jurists, invoking the paramountcy of “juristic law”, the course of international legal development was perceived to be a linear progression. The utopian ideal for these normativists was to achieve an international community of sovereign states that would be governed, not merely guided, by legal norms. The three other kinds of role-players – the legal advisers, the negotiators and the regulators – were men (at that time exclusively men) whose inﬂuence on world order in the late 19th century was indissociable from that of public service. Not all of the 19th century negotiators were “trained” in international law, though most became increasingly familiar with the law of treaties and related matters in the course of their bureaucratic duties. Like the negotiators, the regulators saw international law as the necessary normative background to the operational realities of the diplomatic arena,

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and of modern bureaucracy more generally. To the extent the negotiators and regulators were committed to the rule of law, it was to the need to develop “technocratic law” that would guide, rather than govern, international aﬀairs. It was the legal advisers who were caught in the middle between political and ethical forces pulling in two directions: between the legal internationalists associated chieﬂy with the tower and the rule-conscious pragmatists in the arena. Themes and Issues The legal advisers, negotiators and regulators of late 19th century bureaucracy could not escape the realities of their rapidly expanding “working world”. Their roles in the building of world order during the “classical” period of international law were directly aﬀected by the political, ethical and ideological themes and issues with which their governments had to deal. Much more than the text-writers and codiﬁers from the tower, and perhaps more than the dispute-settlers, the new, internationally oriented bureaucrats had to respond to the milieu of the evolving world community. Questions. The 19th century was an era of startling contradictions, as reﬂected in a totally new mix of colliding ideologies. What were the principal ideologies? What impacts did they have on the international law community and on the rules of the classical system? What new challenges had to be taken up as the world rumbled ominously toward the dangerous uncertainties of the 20th century? The Competing Ideologies. In the early 21st century, we look back at the 20th as an era disﬁgured by warring ideologies. Millions of lives have been lost, and millions more blighted, by vicious inter-state actions purportedly excused by commitment to some kind of ideology. It was in the late 18th century that critics like Jeremy Bentham (1748-1832) ﬁrst called for social and legal reforms on the basis of “scientiﬁc” principles, which were deemed to be of universal validity. Since then it has become common to regard law and government as scientiﬁc disciplines, as “social sciences”. Earlier Louis de Rouvray Saint-Simon (1675-1755) had argued for the reconstruction of society on the basis of science, technology and industry, and later Karl Marx (18181883) believed that radical societal change was immutably determined. By the early 1840’s the term “scientist” had been coined to replace “natural philosopher”. Human society and the human condition were accepted increasingly as appropriate objects for scientiﬁc study, explanation and prediction. There was now a more general willingness to extend the scientiﬁc method even to subjects such as “international law”, a term introduced into the English language by Bentham in 1780. As a “scientiﬁc” discipline, international law could be treated as “value-free”. The challenge to “scientism” was slow in ﬁnding its voice in the mainstream of legal studies. Logically, the challenge should have come from the ﬁeld of “politics” or “political studies”, which had become accepted as an academic subject in many AngloAmerican universities in the ﬁnal quarter of the 19th century. But this new discipline was itself conﬂicted between old “political philosophy” and new “political science”. Whereas the former pivots on political ideas, the latter has generally concentrated

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on political institutions and behavior, avoiding normative judgments as much as possible and seeking to derive explanations and predictions from objective, preferably measurable, facts. So the modern discipline of international law (or “world order”) has suﬀered from a chronic neurosis as a ﬁeld of knowledge swinging between the poles of perception and ascertainment. For many historians, the most conspicuous ideology of the 19th century, especially of the second half, was imperialism. Yet nothing was a more constant feature of earlier world history than the rise and fall of empires. The earliest rise on record may have been that of the ﬁrst Sumerian empire established throughout Mesopotamia among a people now renowned for their unparalleled contributions to early civilization in the middle of the third millennium B.C. It was overthrown, perhaps through Semitic inﬁltration rather than conquest, by the forces of Sargon (Sharrum-kin) of Akkad (or Agade), who descended from the north. Imperialism is usually regarded as a state policy designed to achieve control over foreign peoples against their will through coercive measures ranging from aggressive political and economic strategies to military force and repression. The broader the deﬁnition, the more ever-present imperialism seems to have been, but posterity has been ﬁckle in its judgements. Some of the most successful imperialists of the distant past, such as Hammurabi, have been credited with greatness despite the highly acquisitive nature of their rule. The history of eastern and western Asia, as well as that of the Middle East, the Near East, and the Mediterranean basin, has been an unending succession of empires, often building on the weakened foundations of imperial predecessors. Normally, imperial expansion guaranteed eventual resistance and defeat by a rival power. Perhaps only the rival Egyptian and Hittite empires of the 13th century B.C. can be seen to have discovered the beneﬁts of relatively peaceful coexistence, as Werner Levy has suggested. In classical antiquity, Alexander the Great (356-323 B.C.) nearly achieved the remarkable feat of establishing the ﬁrst “world empire” through integration of the western Asian civilizations with his eastern Mediterranean domains. If he had succeeded in maintaining such a colossal empire, it would have been the ﬁrst to be rationalized by its founder as a union of peoples who would live together in cross-cultural harmony, on the basis of political equality, and within a system of “world law”. His dream was never realized, but the ethical challenge inherent in it had been taken up much earlier by the Greek Stoics in their conception of a universal community, and it was that ideal that the Roman humanists later invoked to justify their own remarkable extension of imperial authority over a vast region from Britain to North Africa. In those distant times, apologists for imperialism argued against the detractors, justifying the violent means usually employed by reference to the beneﬁts imposed by a supposedly – and perhaps actually – superior order of civilization. By the fall – or erosion – of the Roman Empire in the West, theorists had articulated virtually every point that the human mind could discover between the extremes for and against rule by empire. The 19th century added very little that was really new in the theory of imperialism, but the latest technologies coming out of the Industrial Revolution enabled

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the powers of the day to develop a totally new scale of imperial capture, mostly but not entirely in the form of colonialism. Resort to colonization reached its peak in the second half of the 19th century. In 1858 parts of China were subjected to foreign quasi-colonial and extra-territorial regimes under the Tientsin treaties with Great Britain, France, Russia and the United States. The Amur region was ceded to Russia. The subordinate status of China was reinforced two years later by the Peking conventions with Great Britain and France. The imperialistic nature of Russian policy was accentuated in 1865 with the capture of Tashkent, and shortly thereafter with the subjugation of the Central Asian khanates of Kokand, Kliva and Bokhara. American participation in the game of imperialist capture was reconﬁrmed by the U. S. acquisition of the Midway Islands in 1867, and arguably by Seward’s acquisition of Alaska from the cash-starved Czar in the same year. The new prospects of East-West trade and of Western domination were dramatically enhanced by the opening of the Suez Canal in 1869 (Porter, 1994). Colonialist ruthlessness and rivalry in the late 19th century had diﬀerent impacts in diﬀerent places. Asian hatred of foreigners – not least of Western imperialists – incited massacres of foreign residents in Tientsin and other Chinese cities in 1870, and in the same year ancient resentments among Europeans triggered the outbreak of the Franco-Prussian War. In the following years new imperialist designs appeared. Japan claimed sovereignty over the Ryuku Islands and threatened Formosa with occupation; the German Empire, now triumphant, annexed bases in the Marshall Islands; and the United States acquired strategic access to the harbor at Pago Pago in the South Paciﬁc. Determined to contain rival imperialism of the Russian sort, Great Britain fought two bloody wars in Afghanistan (Meyer and Brysac, 1999); the government in Paris in 1885 ﬁnally won China’s recognition of the fact of French suzerainty in Indo-China; in 1887 Sarawak, Brunei, and North Borneo became British protectorates; and in the same year London and Paris entered into a mutually convenient condominium arrangement in the New Hebrides (Porter, 1994). In the ﬁnal decade of the century a similar pattern of conquest and coerced treaties of cession continued, mostly to the beneﬁt of Japan, Russia, Great Britain, France, Germany and the United States. Their gains represented major territorial and political losses to China, to vulnerable island states, and to virtually the whole of the African continent. The other side of the story is that the imperial presence in these captive economies brought in a ﬂood of overseas capital investment on a scale previously unimagined. It was in response to these new economic opportunities, above all, that new, large-scale migrations occurred in these colonial and quasi-colonial regions. The Age of Imperialism was not characterized by noble and altruistic motivations, but many of the economic and social eﬀects, ultimately, were mutually beneﬁcial (Betts, 1976). Cutting across the forces of imperialism and colonialism, aﬀecting victors as well as vanquished, were the new energies of nationalism. Whatever weight might be given to other ideologies, it was nationalism that emerged as the most potent mode of civic feeling at that time in world history. In an era of alarming change, most people wanted to be rooted in their native soil, surrounded by their own. They wanted, above all, to belong to a nation, however diﬃcult the matter of deﬁnition. It has been

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oﬀered in jest that a nation is “a group of persons united by a common error about their ancestry and a common dislike of their neighbors” (Deutsch, 1969). To the historian of nationalism, it is a jest that hurts. Nationalism in its modern sense is a kind of group identity that can only be satisﬁed by visible progress toward the creation and development of a separate and independent nation-state, an entity designed and institutionalized for a people with a common sense of collective interest and allegiance. Nationalism in this sense started in Western Europe in the 16th century, spread much later to Latin America and Asia, and more recently still to Africa. It has become a remarkably potent sentiment, often overpowering other sentiments and sometimes the forces of reason, fairness, and even self-interest. The history of nationalism has frequently been nasty, prompting inquiry into its moral justiﬁcation (McKim and McMahan, 1997) and rather futile debate over its “alternatives” (Deutsch, 1969). Nationalist sentiment has both divided and united, destroyed and repaired. It has been the most successful political force in modern history, whether for better or worse. Looking back at the 19th century, we take nationalism for granted as an irresistible natural force, and assume that the break-up of the Austro-Hungarian Empire was “inevitable”. As Roberts (1997) reminds us, the forces serving the Habsburgs did not even have a common language: “German was used for command, but a vocabulary of less than a hundred words was all that an Italian-speaking or Croat recruit had to be able to recognise”. With the passing of the years, in the second half of the 19th century, the question of a soldier’s loyalties became a matter of strategic concern. Sometimes new nations arose through the use of force, but, signiﬁcantly, it was often conceded that resistance to nationalist emotion was futile. After 1867 Hungary gradually won its independence peacefully through serial concessions, and in 1905 Norway broke away from Sweden at the negotiating table. Remarkably, the Ottoman Empire held together despite erosion in the form of Bulgaria and Montenegro; and the Russian Empire somehow managed to survive continual Polish, Ukranian, Lithuanian and other uprisings. But increasingly the maintenance of multi-national entities was felt to be an unnatural mission, bound eventually to fail. In some cases, what seemed inevitable was reversion to an earlier status quo. The Ottoman Empire, for example, had been cobbled together by the Turks out of numerous scraps of territory, won through a succession of cavalry triumphs over hapless infantrymen; and several of these territories – Serbia, Bulgaria, Moldavia and Wallachia – had possessed a national form of existence in the Middle Ages (Pfaﬀ, 1993) Internationalists resentful of the negative consequences of excessive nationalist sentiment in the 20th century have looked to place the blame on the propagandists of the 19th. It has been common to ﬁx particular responsibility on Georg Wilhelm Friedrich Hegel (1770-1831), son of a revenue oﬃcial in Stuttgart and ironically the student of Kant, the great internationalist. Although renowned as Kant’s devoted student, Hegel was much less idealistic than his master, more religious, and more sharply focussed on the facts of experience. Hegel saw history as a gradual unfolding of God’s purpose. The founding of nations enjoyed divine providence, even when it was found necessary to use violence to establish a state based on law and order. Resort to distasteful means could be justiﬁed by the realization of the ultimate goal:

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the achievement of freedom through civic merger within the nation-state. Wars had been found to be necessary to reach that goal. “Pacts without the sword were but words”. Predictably, views such as these, dispensed by such a famous philosopher, had a cathartic eﬀect on nationalists throughout Europe. It was liberal nationalism, the Hegelian kind, that ﬁrst made its mark on the 19th century. The most explosive wave of liberal nationalism occurred in 1848, when it seemed for a while that the entire continent would become restructured through the emergence of numerous small nation-states pursuing liberal ideals similar to Hegel’s. One by one, the lights ﬂickered out, but the cause had been re-articulated, vindicating idealists such as the humanist Giuseppe Mazzini (1805-1872), who had spent his energies in the eﬀort to achieve the uniﬁcation of all Italian-speaking peoples in a single nation-state. In 1848 he became involved in a revolt in Lombardy and in the following year collaborated with the colorful patriot Giuseppe Garibaldi (1807-1882) on his return from exile in South America. After a temporary success, Mazzini became one of the triumvirate set up to govern a republican state of Rome, but that regime was quickly overthrown when the French intervened. Although Mazzini never achieved the uniﬁcation of Italy as a republican state, his goal of national uniﬁcation was ultimately realized, in a non-revolutionary manner, by Garibaldi and the wily Sardinian statesman Camillo Benso di Cavour ( 1810-1861 ) with the establishment of the Kingdom of Italy in 1861. The trend to liberal nationalism was reversed in Germany, where the country was ﬁnally united by the autocratic Prince Otto von Bismark (1815-1898), but on the basis of an authoritarian, not a liberal, form of nationalism. In his own way, with an ideology of conservative nationalism, the Iron Chancellor had accomplished what German liberals had dreamed of for generations. His detractors could complain that the new nation, which had been blocked for so long, was constructed on the model of order rather than freedom. It would be left to his admirers to point to Bismarck’s progressivist (“civic benevolence”) policy of the welfare state in the domain of domestic policy (Eyck, 1968). By the end of the 1815-1905 period, another variant, reform nationalism, had begun to surface. It emerged mostly in Asia, in existing states that had proved unable to withstand the external pressure of imperial powers due in part to the inadequacy of their own institutions. Advocates of reform nationalism emphasized the value of retaining traditional social values and customs, but accepted certain Western models in order to erect a more eﬀective system of administration. (Alter, 1989). This kind of ideology is associated with late 19th century China and Thailand, but even more so with Japan of the Meiji era between 1868 and 1912. In Japan, nationalist sentiment in favor of modernization along western reformist lines had been aroused after the rather sudden arrival of an American squadron, under Commodore Matthew Perry, in Edo Bay in 1853. In the following year it returned, preparing the Japanese for a series of “unequal treaties” with the United States and other foreign powers, in a pattern that became familiar in the 19th century history of East and Southeast Asia. Within decades Japan had transformed itself from a weak, quasi-feudal state into a military and industrial power strong enough to overcome the might of the Russian Empire in 1905 (Fairbank, Reischauer and Craig, 1965).

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From a world order perspective, the great collision of ideas in the 19th century was between nationalism and internationalism. As William Pfaﬀ (1993) has pointed out, the past before the rise of the modern nation-state was more “internationalist” in orientation than might be supposed. “Tribal society or the primitive agricultural hamlet of pre-antiquity was not replaced by nation but by city, or by a city-based civilization, which enlarged itself so as to become an empire with non-exclusionary frontiers. This was followed by the development of universal religions – Judaism, Christianity, and later Islam – in the Mediterranean world”. Most of the great empires were multinational, and saw no harm or weakness in that. The most sophisticated over the ages often regarded themselves as “above nationality”. Down to the ﬁrst decade of the 20th century, passports were mostly dispensed with in a world that tried to take a generous, non-parochial view of human development. Indeed, as Pfaﬀ argues, successful empires tended to create a cosmopolitan sense of progress and personal improvement. “Those conquered by Rome wanted to become Roman citizens. Elites in colonial India, Indochina, and Africa in the nineteenth and early twentieth centuries wanted to study at Oxford or in Paris. Young Indonesians went to Leiden, and made themselves scholars of the Germanic language” “.Sophistication”, derived from the Greek word for “city”, involved knowledge of foreign urban centers. For those who look to philosophy for an imprimatur of approval, the internationalist ideal achieved a new level of credibility in 1795, when Immanuel Kant (1724-1805) converted the ages-long quest for perpetual peace into a philosophical project. Kant was, of course, following in a long line of descent from numerous others who had subscribed to the idea that peace among nations should be developed through cooperative diplomacy within a potentially universal system of law : the law of nations. With little hope of immediate gratiﬁcation, Kant earnestly urged the leaders of the day to take the advice of a philosopher, “arguing that there is some degree of natural harmony between the commands of moral reason and reasons of state” (Wood, 1998). His “doctrine of right” enveloped the notion that all humans had a right to perpetual peace and that it was the moral obligation of rulers to work together to that end. What he proposed was not a single world-state, but rather a system of mutually independent states committed to the development of a federal union on the basis of mutual interest. Whether in the Kantian version or otherwise, internationalism is impossible to disentangle as a distinct mode of thought. It cannot be separated from competing ideologies. In a recent study (Holbraad, 2003), it has been suggested as useful to distinguish three brands: conservative internationalism, liberal internationalism, and socialist internationalism. The ﬁrst of these, conservative internationalism ,is depicted as a type of internationalism that arose out of the political realism and the balance-of-power system of the 17th century. In its original pluralist mode, it accepted the idea of a family of nations and trusted to the emergence of intergovernmental cooperation through alliances and functionally limited organizations. In its European solidarist mode, however, it was a response to Christian doctrine that articulated the case for solidarity in order to achieve universal peace and unity.

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Liberal internationalism, on the other hand, is depicted by Holbraad as the product of the 18th century Enlightenment and of the international economy of the 19th century. The liberal component links economic, political, “socio-educational”, legal, humanitarian, and “integrationist” aspirations: faith in a free market-place and the inherent harmony of economic interests; commitment to the political doctrine of non-intervention in the internal aﬀairs of sovereign states; belief in democracy and “international understanding” and faith in enlightened public opinion; reliance on international law and organization by analogy with the domestic constitutional order; acceptance of the moral justiﬁcation for humanitarian intervention on behalf of threatened minorities and individuals and for the principle of national self-determination; and conﬁdence in the potential eﬀectiveness of diplomacy devoted to cooperative goals. Finally, Holbraad distinguishes conservative and liberal internationalism from socialist internationalism. Unlike the ﬁrst two, it was clearly the child of the 19th century – born, if not conceived, after 1815 – parented through the merger of revolutionary and reformist ideologies. In its revolutionary aspect, socialist internationalism was nurtured in response to the harshness of the Industrial Revolution and later provided with a stiﬀened backbone by association with the communist movement of the 20th century. Achievement of this brand of internationalism depended on the solidarity of the working classes and the correct reading of “historical necessity”by the revolutionary elite. Based on class theory, Marxism purported to be millenarian, arguably a secular translation of its founder’s Jewish religious origin (Pfaﬀ, 1913).In its reformist mode, socialist internationalism had its roots in the 19th century ideology of social democracy and in the prospect of social reform through international organizations. It reﬂected trust in the benevolence of the welfare state and in the common interest of national governments sharing similar or compatible goals. Outside the categories of ideology, can we account more simply for the ebbing and ﬂowing of nationalist and internationalist ideals? Economists, usually preferring facts to high-level abstractions, might explain the early display of internationalism quite simply as the logical, geographical extension of trade (and eventually investment) made possible by great surging improvements in transportation and communication technology. The subsequent, industrial development of the transnational economy can be attributed to other kinds of technological change, not least to new production methods in the textile industry in the late 18th century. It was then that capitalism found its most seminar thinker, Adam Smith (1723-1790). As Robert Heilbroner (1999) has written, Smith “displayed the ﬁrst true tableau of modern society”. Thereafter, “all the Western world became the world of Adam Smith: his vision became the prescription for the spectacles of generations”. He thought of himself as merely clear-sighted and sensible, and yet “he gave the world the image of itself for which it had been searching”. It was a new vision of society, based on the ideal of a global market-place. Before Smith, most idealists ﬁxed their hopes for human betterment on moral improvement; typically, on progress toward more enlightened national government. It was Smith’s contribution to idealism to envisage progress in the development of a “system of perfect liberation”, a system that was bound by the force of human nature

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to attain universal dimensions. It took a most remarkable imagination to re-create a world of order and purpose out of an actual disconnection of rapacious and brutal national societies, seemingly mired in hopeless poverty, violence and greed. Curiously, the philosophy of economic liberty, based on the concept of enlightened selfinterest, sprang out of the mind of an outrageously eccentric moral philosopher – the original model of the absent-minded professor. Smith’s capitalism was essentially optimistic. He did not see the necessity to underestimate the human spirit. All individuals, freed of artiﬁcial bonds, had the capacity to develop into whatever their personal potentiality allowed. But some of Smith’s successors, “dismalists” like Thomas Robert Malthus (1766-1834) and David Ricardo (1772-1823) , took a darker view of the future, for reasons that did not coincide. Malthusian pessimism, in particular, might have become the legacy of Smith’s more buoyant world-view, but the advent of birth control practices, food production improvements, and other changes halted the slide into despair, promoting the ethos of entrepreneurial endeavor. Moreover, critics of the British “classical” school of capitalist economics, such as Friedrich List of the German “historical” school, argued that Smith and his contemporaries had “over-generalized the particular interest of the advanced British economy in asserting the laissez-faire liberal policy as if it were cosmopolitan natural justice” (Itoh, 1988). Not all shared Manchester’s imperial view of the international economy. Yet it has been argued by many that the origin of capitalist development, from the discovery of America onward, was international. In contrast to provincial feudalism, capitalist economy operated from the start as a global phenomenon. Socialist fears of capitalism in the 19th century were well-founded. “Having abolished and overthrown the fetters of feudalism, the capitalist forces of production did not stop short at the national boundaries they had been instrumental in creating. In the process of establishing national states, capitalism – itself the outgrowth of the new world market – extended that market, creating an international division of labor and exchange of commodities. It was the ﬁrst world economy” (Novack, Frankel and Feldman, 1974). The pull to an internationalized view of society was irresistible. “As capitalism developed, every country was sooner or later drawn into the world market, became an integral part of it, and found its internal life dominated by it.” No capitalist country, as George Novack has written, “is or can be self-suﬃcient or economically isolated”. As a US Secretary of Commerce would later put the matter, “a pair of shoes is a League of Nations”. Tragically, the interconnectedness of capitalist economies virtually ensured that the most serious of the wars of the 20the century would be global catastrophes. Internationalism was one of the central themes of 19th century socialism. Karl Heinrich Marx (1818-1883) and Friedrich Engels (1820-1895) gave capitalism the credit for initiating the process of internationalization. In their Communist Manifesto, they conceded that it was the bourgeoisie who had developed the notion of freedom of commerce and the capitalist world-market ideal that had created a trend to “uniformity in the mode of production”. The problem was that capitalists, exclusively obsessed with proﬁt, could not be relied upon to spread the beneﬁts of global production fairly between or within national societies. But from the beginning, 19th

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century socialism too had to contend with the reality of national chauvinism. Despite their plea for a world union of proletariats, the Marxists of the late 19th century could not check the descent into purgatory. The major wars of the 20th century would be fought across national, not class, divisions. Marxist resistance to capitalist exploitation was ﬁrst successfully institutionalized on the global scale though the creation of the International Workingmen’s Association (the “First International”) in 1864 (Marx-Engels-Lenin Institute, 1939). Above all, it was the ﬁrst eﬀort to globalize the trade union movement, which in the second half of the 19th century was seen to be the likeliest force to counter the appalling abuse of workers around the world. As later events would show, organized labor, like organized capital, tended by force of necessity to become internationalized. The First International was conceived and organized in England, the cradle of industrial capitalism, of the proletarian Chartist movement of the 1840’s, and of the trade union movement. It was there that the leaders of the proletariat ﬁrst recognized the crucial need for international solidarity. With the failure of the revolutions of 1848 on the continent of Europe, and the dissolution of Marx’s Communist League, the cause of proletarian internationalism had nearly ﬂickered out in a darkness of despair. But, as Novack suggests, the economic crisis of 1857 (the worst of the century), the Italian war for national independence in 1859, and the American Civil War of 1860-1861 may all have contributed to the revival of proletarian internationalism. The First International had an institutional life for fourteen years. It advocated democratic reform of the franchise in Great Britain and elsewhere, led a campaign for progressive labor legislation, and supported strikes after the crash of 1866. Invariably, it emphasized the need for solidarity among its international membership. But the movement was continuously split among warring ideological sects: revolutionary communists, moderate socialists, and anarchists (Stekloﬀ, 1968). It was also constantly attacked by squadrons of political enemies on the outside. The ﬁnal demise of the First International took place in 1878 after the transfer of its headquarters to New York City, but its back had been broken six years earlier after the failure of the Paris Commune. Part of the problem was that the internationalist component of the socialist movement was almost entirely a missionary endeavor of small intellectual elites, not of the working class membership of trade unions and labor parties, especially in Great Britain (Newton, 1985). The resilience of the radical movement reasserted itself with the founding of the Second International in 1889. Its reinstitution was part of a larger event designed to celebrate the centenary of the French Revolution, which was perceived by many as the model of modern internationalist progressiveness. But, as before, the congresses convened between 1889 and 1904, fell prey to lethal struggles between incompatible ideologies, mostly between moderates and revolutionaries (or, variously interpreted, between Marxists, revisionists and opportunists). Marxism won the polemic in 1904, at the Amsterdam Congress of Social Democracy, but the story of Marxism-Leninism belongs to the 20th century. As John Kenneth Galbraith (1994) has written, the most striking feature of the industrial capitalist system is “the authority with which it endowed those who owned the plant and the machinery or who had the means to acquire them. The feudal and

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still very inﬂuential landlord owed his authority to his ownership of the land. And the merchants, including the participants in the great trading companies of earlier date, owed their importance to the ships and the money they supplied”. Arguably, however, their success alienated the less driven: the old holders of wealth as well as the wealthless. To deal ﬁrmly with these parvenus, perhaps it was necessary to resort to the abstractions of political theory. Similarly, many have tried to ﬁnd a simple explanation for the psychology of nationalist identity. A nation has been described as “a daily plebiscite”, “a moral consciousness”, whose adherents “have much in common and have forgotten much” (Pfaﬀ, 1993). Yet to many, liberals especially, in the international law community, the virtue of internationalism seems so compelling that it is found diﬃcult to understand how intelligent or well-intentioned persons could be nationalists. The illogicality of nationalist ideology suggests that “it must eventually and naturally disappear, as an aberrant phenomenon, destroyed by progress”. Not least, national distinctiveness forces out invidious comparisons. Why are some nations so much richer than others, and many are so very much poorer? The question seems to invite a glib moral judgment. “Some see Western wealth and domination as the triumph of good over bad. The Europeans, they say, were smarter, better organized, harder working; the others were ignorant, arrogant, lazy, backward, superstitious. Others invert the categories: The Europeans, they say, were aggressive, ruthless, greedy, unscrupulous, hypocritical; their victims were happy, innocent, weak – waiting victims and hence thoroughly victimized”. Both of these “manichean visions”, Landes (1998) suggests, contain “elements of truth, as well as of ideological fantasy”. Landes distrusts easy answers to such a diﬃcult question, and therefore discounts the explanatory value of ideology, reducing it to mythology. Perhaps the continuing popularity of ideology in the academic community is due to a collective sense of guilt in the richest countries that have gained most out of international economic history. Feeling, he suggests, is preferred over knowing. Even the idea of a West-dominated ( Eurocentric) global history is sometimes denounced as a form of “cultural aggression”. Perhaps there is some room for common ground by agreeing on the existence – and, more carefully, on the legitimacy – of cultural diversity. But admittedly even this kind of tolerance can be carried too far. Reﬂections. Great dammed-up reserves of emotion have been released through the 20th century debates over the competing ideologies of the 19th. Imperialism and colonialism have been discredited, and Marxist socialism seems to have been eclipsed. Yet, although colonialism in the formal sense is dead, a case for “progressive”, as distinct from “regressive”, imperialism can be made. Although the adjective “imperialist” has been transformed into a polemical term that “virtually ignites an impulse to self-denunciation”, some analysts can imagine a kind of imperialism whose energies could be “liberated for the advancement of civilization and creative activity” (Feuer, 1986). Moreover, moderate socialism may be healthier than ever, no longer stigmatized by association with aggressive communism and now assigned an international role in the anti-imperialist movement.

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Nationalism, directly, and capitalism, indirectly, continue to mount challenges to the ethical claims of political internationalism. The apparent triumph of capitalism over socialism in the 1980’s and 1990’s has been short-lived: the current campaign against “globalization” is essentially a continuation of the familiar socialist attack on the ethics of capitalism. Only some are ready to put their faith in a more cooperative and more generous brand of capitalism (Smith, 2003). It depends on how much energy one sees in the spirit of democracy, a very much older ideology. Among those who concentrate on the ideological struggle between nationalism and internationalism, some see a dangerous, potentially destructive return to nationalism as the predominant ethos of the early 21st century (Saul, 2005). Whatever the twists in contemporary ideology, there is no doubt that the ideological issues of the late 19th century tended to stiﬀen bureaucratic resistance to socialism. By the 1880’s both nationalism and internationalism were being articulated by their advocates in conservative terms. In the period down to 1920, the international law community was more ﬁrmly committed to the status quo than ever before, or since. In those forty-or-so years, bureaucratic international lawyers were obliged, on the whole, to serve an ideology that was imperialist, colonialist and nationalist in orientation. In more recent times, the dissolution of cold war tensions, the break-up of Yugoslavia and Czechoslovakia, and the splintering of the Soviet empire have revived older controversies over such matters as the ethic of self-determination and minority rights and the legitimacy of spheres of great- power inﬂuence. Secession in Central and Eastern Europe has given more signiﬁcance to national boundaries in an age when Western Europe was apparently achieving progress in the bureaucratically driven movement toward regional integration (Holbraad, 2003). Nationality, Aliens and National Minorities. The nature, origin and eﬀect of nationalism have been the source of much controversy and confusion. What forces of history combined to shape nationalism in its modern form? How and why did it evolve so dramatically in the 19th century? On balance, has it been a progressive or reactionary phenomenon? Was nationalist sentiment one of the principal drivers of imperialism, militarism conquest, and racism in the 19th century, and of fascism, total war, and other catastrophes in the 20th? Most writers on world history agree that none of these important questions can be answered with authority. Nationalism is too complex to be disentangled from other powerful events and emotions. It has been condemned by many as a dangerous and selﬁsh streak in human nature, and accused as the motivational cause of the First World War, the most ruinous slaughter in military history. Yet most deﬁnitions of nationalism hold it out as a form of loyalty that cannot be repudiated as an evil. The term “nationalism” can be used dispassionately to describe the latest stage in the history of mass loyalties or allegiance, displaced from smaller groups to the level of the secular nation-state. But it can also be used more selectively to refer only to those forms of national sentiment that have proved extremely intense and ultimately destructive (Hinsley, 1973). However we choose to deal with nationalism as a modern

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ideology, as a creature of the 19th century, it is diﬃcult to dispute its parentage of the legal concept of nationality. In the Western world, dominated by the European powers, national sovereignty was the prevailing ethos of the early 19th century. Never before had the prerogative of the sovereign state been so ﬁrmly asserted. So the concept of nationality developed within the dominion of national, not international, law. Yet it would evolve also as a major feature of international society, and as an infrastructural concept of world order. In early antiquity, rulers and ruling elites did not always diﬀerentiate between citizens and strangers. The largest and most aﬄuent of ancient cities were usually polyglot communities, enriched as trade centers by the cross-cultural mix of their residents. However, as city-states gave way to empires, foreign traders and artisans often found it diﬃcult to maintain their social status as economic assets of value to the host authorities. Empire-building ambitions focussed on foreign territories and foreign assets as a prize to be taken. In many cases foreigners were treated as enemies. Yet some of the expansionists of classical antiquity remained cosmopolitan. As Parry (1957) observes, the ancient Greeks and Romans had no obsession with nationality. Indeed many of the better Roman emperors of the 2nd century and thereafter were not themselves Romans in the geographical or ethnic sense. They were enlightened children of Roman colonization. Throughout the age of empire, Romans became increasingly relaxed in the granting of citizenship to non-Romans. However, lawyers tend not to equate nationality with citizenship. The latter privilege was granted only to individuals, and often as a matter of state policy. Nationality, on the other hand, is a modern legal status conferred under statute and clariﬁed by judicial process, and applicable not only to individuals but also to corporations, minorities, ships and other non-individuals. As a legal status conferred by national law and recognized by international law, nationality might have begun to evolve in the early stages of inter-state systems, but it did not in fact do so until the modern era. Makarov (1947) suggests it did not emerge in modern statutory form until the Prussian legislation of 1842, which was the product of a new state policy to create compulsory military service. The idea was to build a war machine that relied entirely on conscripts of unquestioned loyalty to the nation-state. Foreign mercenaries were no longer accepted as the core of the military profession. By this argument, nationality in the modern legal sense originated in the preparation for war. Curiously, the concept of aliens – on the other side of the citizen-stranger coin – goes back much further in legal history. In 1869, Lord Cockburn, the Chief Justice of England, could look back, in reformist mode, on hundreds of years of judicial treatment of English statutes dealing with the legal eﬀects of not being a native-born subject of the Crown. The ﬁrst time that such a matter seems to have arisen in England was as early as 1343 (Cockburn, 1869). Since then we can trace a long succession of statutes and judicial decisions, in England and elsewhere, concerning restrictions on aliens in such mattes as hereditary succession, testamentary entitlement, acquisition of land, access to certain trades, and other disqualiﬁcations such as denial of the right to take possession of foreign shipwrecks and their cargoes (Arnold, 1985).

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For most international lawyers at the end of the 19th century, then, the three related concepts – citizenship, nationality and alien status – had separate, but overlapping, histories. Citizenship, the oldest, was seen to be an ancient loyalty concept, strategically crucial in times of war. Through time, virtually all empires and long-established states had found it necessary to delineate the boundaries of state loyalty through legal distinctions between citizens and aliens, but sometimes admitting a third intermediate category of residents by treaty or otherwise (Hadow, 1923). From the world order perspective of continental Europeans in 1905, aliens were non-nationals (citizens of another state or stateless persons). In the past, they had often been regarded as outcasts, if not enemies, who could claim association only with the community to which they were linked by birth, language, or ethnic descent. The better examples of fair treatment for aliens seemed to have emerged from the “law of hospitality” of medieval Europe, which was gradually converted into formal legal entitlements to protection under the law of nations. Such laws, however, were conceded to belong to the prerogative (the domaine reserve) of the sovereign state. These national rules varied enormously from place to place (Arnold, 1985). Sadly, racism was often a factor: the chief victims of restrictions on the rights of alien residents were almost always Jewish (Johnson, 2001). In 1905, the international law community had not yet clariﬁed precisely what role it could play in the protection of aliens. Since the 17th century, it had become fairly common to include reciprocal alien protection clauses in formal treaties of commerce. Some of these instruments went beyond trade matters of mutual interest: for example, some permitted aliens to leave the host country at the outbreak of a war that might compromise the alien’s claim to non-enemy status. The 19th century had been witness to a growing internationalist conviction that aliens should be entitled to a minimum standard of protection. Some jurists went so far as to suggest that states had an obligation not to exclude aliens, and that the problem of statelessness should be put on the agenda of the international law community (Doehring, 1985). But these involvements would not take place until after 1905 (Weis, 1979). As the world community became truly universal, it became apparent that alien treatment issues were not conﬁned to the European experience (Ko, 1990). One of the most diﬃcult problems arising out of 19th century nationalism was that of national minorities. Before then, minority issues of one kind or another had always been a feature of world history. Sometimes these issues were the result of mass migration, sometimes the outcome of conquest. In some regions migration or conquest created majorities that eventually became minorities within a larger system of rule. A large part of India, for example, conquered by Muslim invaders in the 16th century, became a region dominated by a Muslim majority, but subsequent consolidation of power on the sub-continent gradually converted these people into a religious and political minority subordinate to a Hindu majority. In Europe, countries such as Russia, Poland and Germany had a troubled history of minority discontents for hundreds of years. Similar diﬃculties were experienced elsewhere. The rise of modern democracy in the late 18th century sharpened the issue of unrepresentative government in general and the special concerns of minorities subjugated by a majority. In the 17th and 18th centuries, some of the most dangerous

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majority-minority tensions, especially in Europe, had created a ruthless majoritarian ethos, forcing religious minorities such as the Huguenots to emigrate from their traditional homelands, but it was after the emergence of nationalism and democracy in the early 19th century that large national minorities found encouragement in the new ideology of liberalism. Nationalists urged the smaller nationalities to revive their mother tongue and to rediscover their own folklore. These nationalist campaigns carried the seeds of the modern idea of the threat to cultural survival. Today it has become common to argue the case for bilingualism to reduce the strains within a bi-cultural or multi-cultural society. The best hope for achieving balance between national integration and cultural survival may be to allow the largest minority language (or languages) to achieve oﬃcial status as a language of government in the bureaucracy, legislatures and law courts and as a state-sanctioned language in the public school system (Kymliska, 1997). Throughout the 19th century, the prospect of power-sharing between the majority and signiﬁcant minorities within the same state reinforced the perception of majority rule, an ideal of liberal democracy, as an instrument of tyranny. On the question of minority rights, the principal clashing ideologies of the 19th century were three in number: democratic constitutionalism, liberalism (promoting the freedom of the individual), and nationalism (promoting the supremacy of allegiance to the nation or the people). Whereas the ﬁrst two remained chieﬂy the battle-cry of progressivists at the national level until the mid-20th century, appeals to the ethos of nationalism became a constant in the ﬂux of international events after 1815, forcing the problems of national minorities into the debate on the deﬁciencies of the international community. Between 1815 and 1848, those who wanted to change European society through revolution invoked the principles of the French Revolution: not only the ideals of popular sovereignty, representative government, individual liberty and the freedom of the press, but also the idea of nationality and national minority rights. The rise of nationalism in that period owed much to the dismemberment of the Ottoman Empire, which resulted more or less directly in the formation of new nation-states such as Greece, Serbia Montenegro, Romania, and Bulgaria. This important trend to the goal of national independence was closely associated with the ideal of religious freedom, but that principle never attained a constant linkage with modern nationalism. The international recognition of new states in Eastern Europe was made conditional upon the acceptance of religious tolerance, whereas no such condition was demanded later in the century at the formation of the Italian and German nations, nor when Norway seceded from Sweden (Sulkowski, 1944). Despite the variance in practice, the international aspects of minority problems had been recognized as early as the Peace of Westphalia in 1648. Clauses for the protection of certain minorities began to appear in bilateral treaties such as the treaty of Kutchuk-Kainardji between Russia and Turkey in 1774 (Fawcett, 1979). By this time rights of minority protection were beginning to be extended to ethnic minorities in bilateral treaties. Then, in 1815, the cause of minorities was taken up at the Congress of Vienna. The plight of Polish minorities was one of the ﬁrst to receive attention, al-

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beit inadequately. Later, the vulnerability of Turkish, Greek and Romanian minorities in Bulgaria was recognized in the Treaty of Berlin in 1879 (Hofman, 1985). But these eﬀorts at amelioration by treaty were complicated by colliding ideologies. By the mid-19th century it had become increasingly common to associate the cause of nationalism with that of liberalism. The most admired European civic idealist in the 1840’s and 1850’s was Giuseppe Mazzini (1805-1872), an Italian patriot, who has been criticized by later generations for his confusion of nationalism and liberalism. Mazzini became a determined advocate for the cause of national unity, an outcome that most Italians of his era did not seek, on the ground that it was the only path to a more liberal and representative form of government, the only possible impediment to a continuing succession of tyrannies. Like its Greek counterpart in 1830, the Mazzini experiment in nation-building was to prove a costly model to follow in the 20th century. Millions of lives were to be lost in struggles for national unity and the prerogative of national self-determination (Roberts, 1997). Studies in the late 1970’s (Ashworth, 1978, 1979, and 1980) covered no less than 114 cases of oppression of national minorities. Jurists of the 19th century, however aﬀected by the cause of nationalism, did not know how to bring national minority problems into the domain of public international law. Their diﬃculties began with the virtually insoluble problem of reaching general agreement on an operationally useful deﬁnition of “nation” and “people”, as distinct from “state” which had become established as the only unit recognized as a “subject” of international law. Only states could be the bearers of sovereign rights and duties, with the legal capacity to grant or withhold consent. Reluctance to recognize the rights of small nations or peoples with minority status was built into the structure of the international legal system in the “classical” period. Peoples and nations that did not correspond with sovereign states fell through the cracks. The revolutions that erupted throughout Europe in 1848 all failed, chieﬂy because they focussed prematurely on the ideal of national independence. Some historians have argued that these newly-conceived movements, especially in Germany, aborted by allowing their goals to be framed around a conservative, not a liberal, concept of civic freedoms. Others, on the other hand, crashed because of what was seen to be a dangerously careless association with socialism, a radical ideology bound to scare oﬀ potential reformist allies. In the 20th century, with the advent of world organization, a much more systematic eﬀort was made to deal with the problem of national minorities. But the initiatives of the League of Nations to provide eﬀective protection to national minorities were unsuccessful, and those under the United Nations, though much more impressive, have been thwarted by continuing confusion over the nature of nationalism and by political controversy over its ethical ranking against other ideologies (Claude, 1955). Territoriality and National Boundaries. National land boundaries were a matter of concern to states and principalities long before the emergence of imperialism and nationalism as dominant ideologies of the 19th century. By 1815 numerous treaties with “boundary” or “frontier” provisions had accumulated. More than a few international instruments had been wholly devoted to such issues. The diplomatic corre-

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spondence of the 18th century reﬂects the priority given to the allocation of political territory, especially in the unfamiliar terrain of colonial possession (Hertslet, 1967). To the extent that norms of the law of nations were considered applicable to the process of allocation, they were in the form of general principles derived by analogy from the Roman law of land ownership. But most specialists in boundary studies of that era saw no useful purpose to be served by reducing the ﬁeld to a few simple legal rules (Prescott, 1965). Much of the vagueness inherent in early modern boundary-making continued into the late 19th century. In contemporary theory, a fundamental distinction is now drawn between the linear concept of a “boundary” and the zonal concept of a “frontier”. Yet the two words were often used interchangeably, at least in the English language. This elementary distinction did not become established until the 1920’s (Johnston, 1988). The emotion that has so often been invested in boundary issues and disputes in modern times could be attributed to the impacts of imperialism and nationalism, but biologists and behavioral scientists have seen the roots of territorial emotion in our animal origins: in the phenomenon of human territoriality. Like an animal defending its lair, many of us approach an international boundary dispute on the assumption that we have a natural entitlement to our native lands, an idea particularly appealing to advocates of natural law as well as nationalism. As the century advanced, however, the jurisprudence of the legal positivists, emphasizing the need for sovereign consent, began to prevail over the naturalists. Neighboring states had to negotiate boundary settlements in the light of current interest against the background of the geographical situation. The weight given to geography in the settlement of frontier and boundary disputes in the 19th century meant that they sprang out of the widest possible range of physical circumstances. But it was diﬃcult to keep out the theorists. Down to 1905 many felt that the most permanent boundaries or frontiers would be those that were natural, marked out for all to see in the form of mountain range, watershed or river valley, such as the main watershed of the Himalayan system in the case of India, as it then was. At least the use of the major features of the landscape followed in the tradition of European boundary-making. It may have been that the idea of natural boundaries had its origin in France (Pounds, 1951). In mountainous regions, the Swiss and others had found it possible to extract a fairly precise method of delimitation: the line following the lowest part of the valley, and therefore the area to which all running water tends to drain (the thalweg). In such regions the existence of the local thalweg option opened up the possibility of choice between two or more methods of delimitation. It was in the last two decades of the 19th century that the need for more technical precision became apparent. The importance of precision was readily accepted by imperial authorities responsible for administrative control of unfamiliar colonial terrains. The quest for precision in boundary-making was usually urged by the boundary commissions set up in that period, and the prospect of precision had, of course, a special appeal to lawyers. But in 1905 boundary-making was still the special preserve of political geographers, administrators and boundary commissioners. It was professional land surveyors who made it possible to move toward a higher level of precision at the third stage of the

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boundary-making: that of demarcation of the boundary line on the ground by markers. Most today might agree to consider these three processes as the evolution of an inter-state land boundary. In the 20th century it became common to sign a formal boundary treaty after completion of the second stage. Theoreticians have quibbled over the years whether the administration of oﬃcial acts and services associated with a boundary or frontier should be considered a fourth “stage” in its subsequent evolution, or merely a maintenance “function” (Prescott, 1965). By 1905 there were some ready to challenge the general preference for “natural boundaries”; an idea that seemed more appropriate for frontiers than boundaries. It was beginning to be argued that precision was more likely to be achieved through artiﬁcial methods of delimitation. But those who looked favorably on the use of artiﬁcial methods had to contend with the arguments of military strategists and imperial administrators, who emphasized the need for “strong” borders or borderlands constructed around physical features such as lakes, rivers and mountain-ridges. By the ﬁrst half of the 20th century, however, the thinking about international boundaries changed dramatically, as new technologies facilitated the combination of natural and artiﬁcial techniques. Soon it would be common to distinguish three kinds of “artiﬁciality”: astronomical, mathematical and referential. Astronomical boundaries are those drawn along lines of longitude (meridians) or latitude (parallels); mathematical boundaries, on the other hand, are constructed by means of arcs of great or small circles; and referential boundaries are drawn parallel or perpendicular to some arbitrarily chosen reference line. Critics of the geometric approach have complained that it has worked well in the case of internal boundaries in the vast, lightly settled, federal territories of Australia, Canada and the United States, and pointed out the anomalies of excessive dependence on the 49th Parallel, including the creation of the tiny American, Canadian-surrounded, enclave of Point Roberts. Readers may not be surprised to learn that the dogmatists later converged and ended up with obvious consensus. Both the natural and artiﬁcial techniques have advantages and limitations; each boundary situation is diﬀerent and should not be constrained by arbitrary considerations of either kind. We should not suppose that these shifts in boundary-making theory and practice were unaﬀected by the context and ethos of the late 19th century. The strategic line of reasoning deployed by imperialists like Alfred T. Thayer and Sir Halford J. Mackinder had a decisive inﬂuence on British frontier experts such as Lord Curzon and Colonel T. H. Holdich, who were concerned above all with the use of frontiers for defensive strategy to stabilize British territories and trading outposts overseas, especially in remote and vulnerable areas. Curzon would become particularly well-placed to implement such a philosophy, ﬁrst as a powerful viceroy of India, and later as an imperious foreign secretary. The geopolitics behind land boundary-making in the late imperial period left little room for international lawyers to establish disciplinary primacy in this ﬁeld. Rather it was in the cognate sector of maritime boundary-making that some visible progress was made toward the clariﬁcation of legal rules to guide, if not govern, the boundary-making process. On the face of things, there was not much in common between land and ocean boundaries. Physical boundary lines in the coastal waters were still

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beyond the reach of technology. Residential or other communities in the sea could not yet be envisaged. Further out, there was not much “geography” to complicate the situation, except the rather diﬀerent complexity oﬀered by islands and archipelagoes. There were no exact counterparts to the three initial stages in the evolution of a land boundary: allocation, delimitation and demarcation(Prescott, 1987). Moreover, maritime issues had always been dealt with by lawyers within the distinctive framework of maritime jurisdiction that had not changed much since the famous “battle of the books “in the early 17th century. The outcome of that debate was seen to be a victory on points for Grotius. The most serious of these jurisdictional issues concerning entitlement at sea was the seaward extent of the coastal state’s territorial jurisdiction, seemingly that issue had been resolved by the agreement of the naval powers to restrict such claims to three metric miles measured from the territorial sea. The trend to a narrow belt of national waters minimised the amount of ocean space in which maritime boundary issues could arise that would not be dominated by considerations of coastal geography and coastal communities. It would be half a century before the golden age of maritime boundary-making arrived, ready for the application of sophisticated techniques within a totally re-imagined and re-structured law of the sea. Reﬂections. The extent of world transformation between 1815 and 1905 can hardly be exaggerated. At the end of the 18th century, the literature on the law of nations had held on to an intellectual vision of how honorable rulers should deal with one another. Numerous rules emerged out of that normative heritage, reinvested with the humanist ideals of the Enlightenment. But in the 19th century the imperialist ethos took its toll, as our ancestors of that age gradually acceded to the glories of imperial capture. Today most of us acquainted with the development of contemporary international law are prepared to accept the frequent need for compromise between legal idealism and political realism. Yet, as we look back at the Western imperialists of the late 19th century, we recognize how little their sense of “reality” resembled ours today. Nothing is more chilling than our Victorian ancestors’ conﬁdence in their right of capture. Often it was not so much the legal possession of colonies that animated the great powers as the prospect of easy, preferably uncontested, access to the resources of captive economies. Industrial competition composed a diﬀerent set of rules that demanded the acquisition of new and cheaper sources of supply. The acquisition of new territories was not always an essential requirement for pursuing the goal of capitalist expansion, but an international legal system that prescribed so many modes of “legitimate” territorial acquisition was clearly tolerant of an expanding ethos of national entitlement. Despite its association with the 19th century, nationalism has a long and complicated history that reveals an alternation between periods of surprisingly cosmopolitan inclusiveness, born of mutual commercial beneﬁt, and longer periods of intolerance and persecution of foreigners. In the history of 19th century, there is not too much evidence of a solid “historical foundation” of later eﬀorts to establish an international standard for the treatment of aliens or non-nationals. The rawness of nationalist sentiment set in motion a dangerous kind of loyalist solidarity that could

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not possibly be contained within a system of order designed to protect the interests of the principal power-holders. Of all the competing ideologies that surfaced in the 19th century, nationalism was to prove the most mercurial and the most threatening to the established prerogatives of the sovereign state. As noted earlier, it was the authoritarian regime of Prince Otto von Bismarck (1815-1898), the great nation-builder, that introduced the ﬁrst version of the modern welfare state. He had united the German people on a bank of longbuilding nationalist sentiment. But after his accession to power, he found himself surrounded by liberal and radical critics, who insisted on a program of reform. Rather than divide the nation at the outset over issues of political ideology, Bismarck and his loyalists engaged in a brilliantly pragmatic policy of accommodation. Remarkably liberal state programs were introduced by this arch-conservative in several welfare sectors, especially in the context of worker insurance against sickness and old age. This early form of “socialism” became a model for every other country in Europe. As Bismarck saw things, these measures were needed not to nurture an ethic of civic enlightenment but to strengthen the will of the German people to play its rightful role in world aﬀairs, not merely as a powerful new state built on the Prussian model of collective discipline but as a leader of “civilization”, ready to compete on all fronts with its old European rivals. Final Reflections The 19th century has been charged with a multitude of sins. Mostly, it was guilty as charged. But, in truth, the years between 1815 and 1905 were a period of startling contradictions. Paradoxically, the energies of that era created a jumble of almost totally incompatible ideologies, each of which was to generate its own kind of commitment, to the level of “overexpectation”. Each of the newer ideologies could claim to be a brand of progressivism, setting its own direction for forward movement. The ancient quest for separate gods that sanctioned each system of loyalty was now replaced by a more sophisticated struggle between diﬀerent, redeeming ideologies of secular progress: nationalism, internationalism, imperialism, colonialism, capitalism, socialism and constitutional democracy. Without drawing upon his dialectic, we might ﬁnd it useful to use Hegel’s concept of synthesis to convey a phenomenon that could now be seen to be emerging as an outcome of historic struggle among these ideologies: the Kantian ideology of “world order”. By the mid- 20th century, only the cause of colonialism would be wholly discredited as a common enemy of internationalism. The others have survived to our own day as the heritage of the 19th century, ﬂawed but suﬃciently viable as distinct modes of idealism to provide the foundations of modern political thought. Probably most European international lawyers today are conﬂicted over the contributions of the late 19th century to the development of an international legal science. On the one hand, it nurtured a system of law that oﬀered a high degree of consistency with the distant past: a respect for continuity and a solid normative framework for the maintenance of order among the holders of sovereignty status. On the other hand, classical international law became increasingly detached from the mainstream

The Ruling of the Modern World (1815-1905)

of reformist thought. Within the arena of diplomacy, the new practitioners of international law found it diﬃcult to replicate the reformist agenda of the tower, and totally reprehensible to embrace any ideas that could be construed as radical. Dilemmas arose between the call of national duty and the cry for international principle. Since then it has remained diﬃcult for legal advisors and other practitioners in the arena to hold a balance between these two compelling strands of obligation. Some readers today may be uncomfortable with the idea of order – the absence of anarchy, chaos and internal violence – as a central requirement of any system of rule. But it has always been so, despite the seductiveness of ancient and modern images of society based on free, independent, and even anarchic ideals. With the loosening of Church and Empire at home in the West, it fell to like-minded great powers and established states to accept responsibility for the creation and preservation of international order. Especially since the Peace of Westphalia, it had been accepted that the only way to advance to any kind of system of international order would have to be through the common interest and shared responsibility of the great powers. The early eﬀorts of the various European congresses, however limited from a later perspective, were remarkably important contributions to what would later become the semi-triumphant, and yet semi-futile, eﬀorts to establish a lasting system of world order in the 20th century. Part of the 19th century’s eﬀort to achieve progress toward that end focussed on the ancient, achingly familiar, quest to bring a degree of sanity to war-making, and a semblance of humanity to the treatment of combatant and non-combatant victims of the battleﬁeld. The introduction of more terrible weapons raised the specter of mass slaughter. Hopes for the management of war rose and fell throughout the 19th century. Compared with earlier eras – and especially with the catastrophic record of the 20th – the Victorian period of world history was not particularly war-like, despite the reluctance of anti-imperialists, then and now, to glorify the pax Britannica. Most of the great humanitarians of the 19th century came from outside the communities of professional diplomacy and international law. The pioneers in the development of modern international humanitarian law were non-jurists for the most part, drawn from the rich and privileged classes of European and American society. The International Red Cross was perhaps the ﬁrst great international institution to emerge from outside the system of sovereign states, foreshadowing the appearance of a counterstatist transnational community that would eventually introduce a distinctly ethical (or societal) perspective on international law and the larger idealistic imagery of “world order”. Despite these signiﬁcant shifts in world society, the sovereignty of the state remained ﬁrmly at the center of the conceptual apparatus of classical international law. It was still much too early for the arena to grasp the inevitability of some loss of state autonomy, if established states were to share in the building of an organized world community. To legitimize that process it would become necessary to resort to legal ﬁctions such as the doctrine of state equality, which clearly did not correspond with the realities of the international political system. From the comforting assurance that all sovereign states possessed the same entitlements and prerogatives, it would be easy to carry into the 20th century the idea of their territorial integrity and the hope

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that they, unlike colonies and other dependent territories, would enjoy legal protection from external intervention. In 1905 state sovereignty retained an infrastructural status within the classical system of international law, and the right to withhold consent was accepted as the all-important condition of membership of the “club” of privileged, and mostly Western, states. Despite the long succession of pleas down the ages for a better and more fairly organized world, the international community in the late 19th century was not yet ready to envisage future trends to some kind of world constitutionalism. In 1905 there was very little in place that could be construed as the ﬁrst steps to the establishment of a worldwide system of permanent political institutions. International law was still conceived as a normative tradition that had evolved without the beneﬁt of centralized institutions that would reﬂect some of the basic features of constitutional democracy after more than a century of civic experiments, especially in Great Britain, France and the United States. Though not yet transported to the international level, the idea of constitutional democracy was ﬁrmly rooted in fertile soil. In France many had found common cause in constitutionalist ideals of the French Revolution and in the universalist components of the Napoleonic vision. But it was in the Anglo-American world that the strongest eﬀorts were made to place constitutional structure and procedure at the core of the modern democratic state. The years between 1815 and 1905 also witnessed a new pattern of resort to international dispute resolution, mostly in the form of ad hoc arbitration. Most of these eﬀorts to apply the rules of international law had only a few of the characteristics of modern inter-state arbitration. Only in 1899, at the initial Hague Peace Conference, was the ﬁrst attempt made to set up a permanent system of peaceful settlement. Though tentative in conception, the Permanent Court of Arbitration was an important innovation, and did inspire later developments around the adjudicative (rule of law) model of international law, which would rally the international law community around a universal purpose. Despite the continuing absence of permanent international organizations, the diplomatic community in the second half of the 19th century had discovered a growing potentiality for multilateral cooperation on the part of sovereign states. The entire system of treaty-making, like that of international adjudication, was still based on the assumption that international relations consisted, almost invariably, of bilateral dealings. The scope of bilateral treaty relations had expanded impressively. International law was still in the transactional stage of its development. Yet even more signiﬁcantly for the future of world order, the late 19th century began to discover the need for multilateral settlements, arrangements, and regimes, especially in sectors created by the need for neighborhood resource management or regulation and in ﬁelds being opened up by new, universally shareable technologies such as the telegraph and other pioneering breakthroughs in communication. Few, in 1905, could have imagined the transformation of the world community that would take place through international technical organizations in the following generations. Fairness was not a prominent feature of the late 19th century version of world order. Classical international law rested on fragile foundations, as far as international justice was concerned. Reciprocity clauses in certain kinds of treaties might be re-

The Ruling of the Modern World (1815-1905)

garded as early approaches to fairness in treaty relations, and the prospect, turning into the reality, of regular international adjudication promised to deliver a professionally equipped international judiciary to settle inter-state disputes with the same degree of disinterestedness as litigation at the national level, especially on the model of the civil law and common law traditions. But the true challenge of fairness in world order would have to await the creation of a permanent diplomatic arena after the First World War. The humanitarians, not the jurists, of the 19th century must be given chief credit for maintaining faith in the internationalist cause of civic enlightenment. In the early 19th century, their greatest achievement was in persuading governments to abandon the slave trade, and later in denouncing the retention of slave communities. They also had a lesser success in publicizing the misery of subjugated aboriginal peoples, but the wholly statist structure of international law and diplomacy created a barrier against foreign interference in the internal aﬀairs of a sovereign state. Within that structure, which pivoted on the necessity for state consent, no way of involving the international community in the clariﬁcation of aboriginal rights was apparent. Within the law-of-nations system that had grown out of the ancient Roman law tradition, it was perceived to be a virtue to keep building on a wholly juridical foundation. From the formalist perspective, a legal system acquired integrity only by excluding considerations of justice, religion, and political reality. Legal development of an international system depended chieﬂy on the internal logic of its infrastructural concepts, basic norms, and doctrinal manipulations, unaﬀected by changes in the society that international law was ultimately intended to serve. This, the perspective of legal formalism, was generally accepted by Western jurists in 1905, even those on the common law side of the tracks within the Anglo-American legal cultures. However, as the United States became the dominant world power in the ﬁrst half of the 20th century, the emergence of a cultural divergence within the international law community became increasingly evident. Thereafter, as American lawyers became inﬂuential in virtually all sectors of world order, the legal formalist ideal of Europe would have to contend with a very diﬀerent model of law shaped by the inclusiveness of American legal realism. The depth of this cultural divide is now a matter of lively debate on both sides of the Atlantic.

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9 Contemporary World Order in Profile

The 19th century has been examined in considerable detail. Riddled with contradictions, the years between 1815 and 1905 can be evaluated in many diﬀerent ways, even from the chosen perspective of world order. Those in the mainstream of the European international law community at the end of the 19th century believed that they had come close to perfecting an ancient tradition of legal norms. Especially, but not only, in the civil law countries of Europe, there was widespread satisfaction in the belief that a truly legal system of world order would operate best – like the private law system of ancient Rome – as a wholly autonomous system directed by its own internal logic and forms of procedure. Classical international law was a system of formal rules that very nearly excluded considerations of justice and political reality, just as it discouraged reference to economic, cultural and religious diversity. Hopes were ﬁxed on the attainment of a universal and uniform rule of law, as might be accomplished through the introduction of international legal institutions. The years since 1905 have been a period of remarkable growth for the classical system, and for the neo-classical institutions introduced in the years between 1919 and 1950, such as the League and UN versions of the World Court and the International Law Commission entrusted with the codiﬁcation and progressive development of international law. Moreover, it has introduced concepts of “world order” and other constructs of the post-classical era. These developments are so important that they deserve full treatment, at the same level of historic detail devoted to the 19th century. But this is the ﬁnal chapter of a long book, and the years still to be covered are such a recent contribution to world history, that they must be treated together as the contemporary age. Historians generally are a bit skittish about their capacity to bring objectivity and detachment to the treatment of their own era. So perhaps in a work of this kind, it is excusable to limit the ﬁnal chapter to a proﬁle of the principal world order events, trends and ideas of our most immediate past. The Milieu of Contemporary World Order At the very least, the 20th century was an “Age of Extremes” (Hobsbawm, 1995). Tragically, the impressive trends in our own time toward an inclusive, almost universal, system of world law cannot be separated from two uniquely perilous challenges to international order. The ﬁrst half of the 20th century was overwhelmed by the two

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costliest wars in world history. In retrospect, it is clear that nothing accomplished in the development of international law and diplomacy came close to warding oﬀ the worst calamity in military history. The slaughter on the battleﬁeld during the First World War would alone have made the early decades of the 20th century the most lethal of all eras in modern military history. Most historians have given up trying to estimate the total casualties – at least 9.1 million in uniform alone, possibly three to ﬁve times the oﬃcial count, in some countries close to 20 percent of the total national population. The losses in mass wars are virtually unquantiﬁable. Even although several industries do proﬁt out of war, mobilization for the war eﬀort on that gigantic scale devastates economies as a whole due to the unprecedented strains placed on the labor force. Like most other participants, Great Britain fought both world wars on an economically unsustainable scale. In many ways, the British economy never fully recovered. Yet it was the Western democratic economies that had proved more adaptable than the German model of rational-bureaucratic administration. As Hobsbawn suggests, Britain’s civilian consumption fell by over 20 percent by 1945, but ended the war with a slightly better-fed and healthier population, due in the main to a war-planned economy slanted toward equality and fairness of distribution and social justice. After many years of relative neglect by historians, the First World War has recently attracted a new generation of scholars. Was the First World War simply the result of German militarists determined to carve out wealth and territory for the new German Reich? Or was the appalling slaughter on the battleﬁeld fuelled by a nationalist uprising, building over long years of dammed-up resentment at the eﬀorts of the other European powers to hold oﬀ the inevitable uniﬁcation of the German people? To what extent was the First World War the ﬁnal death struggle between old and new ideologies, such as the forces of absolute monarchy and the supporters of freedom and constitutional democracy (Roberts,1999) Niall Fergusson (1999) has confronted a number of “myths” surrounding the most traumatic of modern wars. He questions, for example, whether the European “culture of militarism” explains as much as it is supposed to do, suggesting instead that militarism was in decline by 1914, due in part to a process of gradual democratization. He disputes the notion that the war was the result of British determination to prevent the spread of German and Italian colonization in Africa. Germany’s ambition to establish an empire even further away had been known, and not actively resisted, for over two decades! In fact, he argues, Britain was simply unprepared for a war, which was assumed most likely to ﬂare up again between Germany and France. He denies, in particular, that the First World War was inevitable. However interpretations change, most historians accept that at least 10 million lives may have been lost in that calamity, estimated to cost in monetary terms almost 210 billion in 1995 dollar equivalents. It also killed oﬀ four of the great empires that had dominated world history for three or more centuries. The British Empire survived, but, as Fergusson documents, “mortgaged to the hilt”. The “war to end all wars led directly to the world’s ﬁrst comprehensive eﬀort to establish a highly institutionalized system of global order and cooperation, but, astonishingly, it was succeeded within two short decades by an even more ruinous

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resort to military force. The totality of the Second World War ensured that no human life was safe from the most destructive weapons. In the contemporary era, massively destructive warfare has threatened the fabric of society, transcending older forms of hostility that focused very largely on men in uniform. Non-combatant civilians, even children and women, were now just as likely to become the targets and victims of indiscriminate terror. Perhaps the most damaging casualty of the Second World War, in the conversion from mass war to total war, was the loss of human sensitivity. The scale of catastrophe unleashed taught the possibility of surviving in a world “in which killing, torture and mass exile have become everyday experiences which we no longer notice” (Hobshawm, 1995). With so much lost, a wholly new history had to be imagined, and then attempted. If we in fact live in a universe that tolerates more barbarism than ever – usually in the name of religious, ideological or cultural dogma – can much of it not be attributed to the assimilation of daily horrors inﬂicted on humanity in the Second World War, and somehow imprinted on our collective genes? There was less uncertainty about the values at stake in the Second World War. More than any other previous conﬂagration, it reconﬁrmed the medieval possibility that one belligerent might be wholly right, in law and morality, and the other wholly in the wrong. It was diﬃcult to be morally neutral during this war. If the international legal system permitted neutral status at such a time, it appeared to many ethicists to be morally blind, condoning violations of civilized standards. The monarchical factor had disappeared, bringing to power in Germany and Italy highly repressive fascist republics that set out to establish colonial entitlements overseas, especially in Africa. Stung by severe reparations imposed on them at the Paris Peace Conference in 1919 (MacMillan, 1999), many Germans were persuaded to follow a mesmerizing, hatemongering leader bent on revenge against his neighbors and rivals, who saw himself in the Napoleonic mold as one destined to raise his people to its rightful primacy among the leading powers. The Second World War was Hitler’s war. Because of the racist hatred inherent in his nationalist ideology, his machine could not be stopped by the processes of diplomacy, much less by the prescriptions of a value-neutral system of international law. Moreover, in the hands of the Japanese, the use of terror on civilians and prisoners of war, as a calculated strategy, proved just as Eastern as Western. The second major threat to civilization was the confrontation between two extremely hostile, potentially self-destructive, forces: the capitalist and communist worlds. After a series of lesser insurrections against the repressive Czarist regime, in the largest and most ungovernable of all the European powers, the Bolshevik Revolution of 1917 prevailed, changing Russia’s relatively modest and unprogressive role in world aﬀairs to one of leadership of a potentially global revolution against the enemies of the proletariat. Sustained Soviet animosity against the dominant middle class in the Western world made a strong appeal to millions whose nations and cultures had been subjugated by the capitalist and imperialist powers in the 19th century. The dogs of war unleashed by the class ideology of the Marxist-Leninists created the danger that all future major conﬂicts might be global in scope. Ideological perceptions reinforced uncertainties about the true villains of the contemporary world.

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Over and above the risk of an ideological superwar against the capitalist Western powers, there arose the more immediate prospect of an indeﬁnitely divided world. For more than a generation after the Second World War there was little to suggest an eventual ﬂagging of ideological commitment on either side, much less a sudden collapse of the Soviet economy. The total control of Russian society won by the Communist Party of the Soviet Union in the late 1920’s ensured the cultivation of a wholly new approach to international law in the Kremlin. The Marxist-Leninist theory of international law would be replicated in the Russian legal research community and in its counterpart institutions elsewhere in the communist world. Throughout the Warsaw Bloc countries of Europe and beyond, including the People’s Republic of China, the Marxist-Leninists opened up a challenge to the value-free detachment of the classical school of international law. According to Soviet dogma, all legal systems were determined by the interests of the ruling class. In the time of Marx and his followers, there was no doubting the dominance of the bourgeoisie. To the extent that the international legal system was composed and developed by the leading bourgeois regimes of the West, it too was a reﬂector of the world bourgeoisie, even though it addressed itself to state, not class, relationships. No bridge could be imagined to cross such a divide. But as the Soviet Union became a signiﬁcant presence in the international diplomatic community, involved in most sectors of international organization, it became essential for the noncommunist world to distinguish between the rhetorical and operational aspects of Soviet diplomacy and of its treatment of international law questions on the world community agenda. Hopes for compromise found expression in the optimistic concept of an “international law of peaceful coexistence” in the writings of liberal cosmopolitans such as Wolfgang Friedmann. As it turned out, even the more senior Russian international lawyers, who had built their professional reputation on their ability to distinguish between the rhetorical and operational aspects of international law within the rather rigid framework of Soviet foreign policy welcomed the opportunity to abandon the need for credibility on two rather diﬀerent fronts. For the junior branch of the Russian international law community, the new course of foreign policy set by the Soviet revisionists, and then by their non-Soviet successors, proved immediately popular. By the mid-1990’s it was becoming more diﬃcult to ﬁnd top-caliber jurists still committed to the old Marxist-Leninist ethic. To some observers, it appeared that many of the practitioners of Soviet international law in the Cold War period had played a highly constructive role, along with their American and European counterparts, in the design and negotiation of the most forward-looking instruments and regimes intended to guide the international diplomatic community through a succession of military and political dangers. More surprising to some leftist international law theorists on the outside was the indecent haste displayed by the new international law elite in Moscow to discard even the most distinguished of their scholars, such as Georgii Tunkin (1974) who had maintained a status of intellectual ascendancy for two generations both in the Marxist-Leninist tower and the Soviet arena. In truth, the Marxist-Leninist school of Soviet theory of international law seems to have passed away largely unlamented in Tunkin’s own homeland (Macdonald, 1998).

Contemporary World Order in Profile

After less than eighty years of Marxism-Leninism, an entire body of modern (postclassical) doctrine had surfaced, matured, and endured several “legal transplantations” in a number of sophisticated European legal cultures. Experience since then suggests that the Russian abandonment of Marxist-Leninist doctrine in the ﬁeld of international law is being matched by comparable transformations in the former capitals of the European Warsaw Pact countries. But more intriguing, cultural rather than ideological, questions arise in the early years of the 21st century regarding the future of Marxism-Leninism itself outside Europe. Will it be found useful, for political reasons, to devise a further revisionist version of anti-capitalist, anti-global ideology, which will oﬀer an alternative ethic for a re-envisioned world? Despite the preeminence of the positivist school of jurisprudence in the West, the natural law foundations of the old law of nations had not crumbled away entirely by the outbreak of the Second World War. Ironically, the viciousness inherent in fascism, especially in the version espoused by the leaders of Nazi Germany in the 1930’s, played a part in the restoration of natural law by legal idealists as a morally superior, transnational order of law and justice, pivoting on obligation as much as on the positivist assertions of state entitlement. In retrospect, it is clear that by the inter-war period of the 20th century the classical system of international law and diplomacy had become captive to a remarkably acquiescent “ethic” of political convenience. General compliance with a purely juridical conception of world order was no longer determined by the tower: by emergence of consensus among the writers of textbooks. Increasingly, over the last century, the technical literature of international law has expanded and diversiﬁed enormously, encompassing not only a huge volume of writing in the juristic tradition of the late 19th century but also an even more spacious production of specialized monographs and articles. The creation of permanent legal institutions – especially the Permanent Court of International Justice of the League of Nations, followed by the International Court of Justice of the United Nations – supplied a more or less constant stream of judicial and arbitral decisions and a much larger volume of juristic commentary. The work of the codiﬁers inspired another branch of legal analysis. As scholars gradually obtained access to the work of the practitioners in the arena – especially that of the legal advisers – it became possible to distinguish the evolution of “technocrat’s law”, a literature that could be seen to share much of the normative concepts of the tower and yet often bore the unmistakable imprint of national interest, of contemporary political judgment, and sometimes of the ethical dimensions of international relations. The imagery of contemporary international law has been enriched by the entry of two additional categories of role-players into the international system of the 20th century. The escalation of many hundreds of international organizations, agencies and secretariats since 1919, but especially since 1945, has generated a voluminous and constantly growing source of information about the work of these institutions, and a steady literature of professional commentary and interpretation. The work of international civil servants represents a somewhat, but not entirely, depoliticised view of world order from the heart of the global diplomatic arena. Even more signiﬁcantly, the birth of international human rights law in the 1940’s has given rise to a loosely coordinated coalition of relatively like-minded groups and

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organizations outside the professional mainstream that might be described as the core of the “transnational ethical community”. Most of these newcomers to the international scene are members of non-governmental organizations (NGOs), some endowed with substantial resources drawn from outside the inter-state system. They tend to focus on ﬁelds and topics that present fundamental ethical issues. Failures to follow progressivist lines within such sectors are viewed by many NGOs as deﬁciencies of the entire system of international law, world law, or world order. Unlike their predecessors, these contemporary ethicists have so much potential inﬂuence on global outcomes that they might be considered as participants, as a separate category of role-players within the contemporary international system, rather than merely as politically active observers. In the ﬁnal third of the 20th century, as the NGO movement gained in political inﬂuence, it became arguable that world order, in its largest sense, is becoming the product not only of the legalist idealists in the “tower” and political realists or accommodationists in the “arena”, but also of these new ethicists, now so conspicuous in the “forum” of public debate. The Modes of Contemporary Internationalism In the years immediately preceding the First World War, the goal of building a professional elite of specialists in public international law was seen to be within reach. Most universities of the Western world had accepted the emergence of that subject as a distinct discipline, and welcomed it into the curriculum of their law schools and political science departments. Funds were made available by major foundations and famous philanthropists (such as Andrew Carnegie) to support ambitious research projects that required the collaboration of dozens of leading international jurists and their associates. Across the world, East as well as West, scores of new journals were becoming the repository of an alarmingly fertile industry of legal research and scholarship. Many of these professional journals were created exclusively for the publication of academic studies within the widening ambit of public international law. At the same time, but at a lower level of production, distinct but cognate disciplines were also evolving in the form of comparative law and private international law. Many of these contributions to the development of world order were open to the study of law as an increasingly transnational phenomenon. Most of these commentators on contemporary normative development recognized the growing complexity of the institutional apparatus of world order, and many of them accepted the need to abandon earlier, simpler models of international law. For them, the acceptance of complexity involved a degree of skepticism regarding the traditional normative infrastructure of their “science”, and justiﬁed a more empirical approach, often in collaboration with “centrifugal” specialists from other social sciences. The new mixture of specialists in the 20th century had the eﬀect of diversifying the range of ideals and theories in the broadening, increasingly cross-disciplinary, ﬁeld of world order studies. Thousands of oﬃcials, teachers, and scholars made their living in specialized sectors of international law that had their institutional origin in the second third of the 20th century: the international law of human rights, the international

Contemporary World Order in Profile

law of trade and investment, the international law of development, outer space law, international environmental law, and others. By the late 1940’s, additional specializations began to appear as derivatives of United Nations law, such as the regulation of armed force, international humanitarian law, and eventually the New International Economic Order. Major regime- building initiatives, such as the UN Conferences on the Law of the Sea in the second half of the 20th century, the Stockholm Conference on the Human Environment (1972), and the World Trade Organization (1995), led to further sub-areas of specialization: marine pollution, ﬁshery management, maritime boundary-making, wildlife law, and sustainable development law and policy. The fragmentation of what was perceived only ﬁfty years earlier to be a relatively homogeneous discipline based on widely shared legal values, norms and doctrines raised concern among many jurists that the international legal system was in danger of losing its moorings (Macdonald and Johnston, 1983). Those most troubled by the remarkable institutional growth and diversiﬁcation of the new system of world order were those who still conceived of international law mostly in normative terms, as a body of rules. To them it appeared that contemporary international law might have outgrown its parameters as a normative science. Their reaction was to place a strict, near-absolute, interpretation on the logic of normality (Weil, 1983). It is, of course, possible to exaggerate the extent of the rifts within the international law community that surfaced in the second half of the 20th century. The old philosophic strain between naturalists and positivists sometimes sharpened the tone of debate in places where abstract reasoning was encouraged, in the making of certain judicial decisions and especially in the codiﬁcatory exercises of the International Law Commission, as illustrated in Chapter One. But ethicists specializing in human rights, environmental protection and international humanitarian law have tended to rally around the human development values of natural law in issue-contexts where the sovereign prerogative of states is seen to have been given excessive weight since the late 19th century. These new criticisms reﬂect the values of a new, counter-statist generation. For example, did the group of privileged power-holders in the UN Security Council have a moral right to the powers of intervention granted to them under the UN Charter? Has it exercised its right of intervention too much, or too little? Given the political status of the Council, should some of its decisions be made appealable to a legal institution such as the World Court (i.e. the International Court of Justice)? If we choose to envisage international law broadly as “world order”, embracing all modern institutional arrangements as well as traditional norms, we are bound to see the future of the system as dependent on a very wide range of modes of idealism. Given the remarkable diversity of the functions of contemporary international law, we can no longer expect systemic growth and improvements to result from a limited selection of favorite “models”. Indeed it seems unduly arbitrary to give precedence to any one, two or three of these modes of idealism. No such consensus should be expected from the scholars of the tower, much less from the technocrats in the arena. If we add the new “societal” or “ethical” perspectives of the non-state (NGO) roleplayers in the “forum”, worldwide agreement on hierarchy among basic norms, values or ideals seems beyond reach.

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The choice of “models”, such as the eleven listed in Chapter Two, will be aﬀected by the contingencies of international political interactions Out of context, why should the preservation of order, for example, rank ahead of civic benevolence (which in the 20th century incorporated human rights)? Why should the cooperative ethic always be forced to yield to the autonomy of the sovereign state and its entitlement to withhold consent? Why should the model of stability in an international constitutional order enjoy supremacy over more ﬂexible, more informal and often more equitable arrangements? Is it feasible to construct a universally acceptable system of norms and institutions for the prevention of war and the management of hostilities? Between the competing legitimacies of development and environment, why should one be allowed to trump the other? If there is a case for retaining a degree of diversity among the legal systems of the world, how far should we wish to elevate the goal of system convergence? By what kind of moral decree are we all obligated to comply with every kind of regulatory regime negotiated in the international arena? Can we expect every regime to be accepted as fair and reasonable from everyone’s point of view? Is the fairness of international law to be evaluated chieﬂy by judicial or arbitral tribunals, shielded from public opinion, or entrusted to the more open but still undemocratic process of conference diplomacy? By the early 21st century, the prospect of universal consistency in value selection, at the level of general theory, has become an impossible dream. Common sense suggests that all modes of international idealism, without exception, will have to contend with all the other, equally legitimate, ideals for the organized world community. When a major world order issue is placed on the global agenda, it might normally be expected that the initial response of the international law community will be conﬂicted in some degree, even if the bureaucratic sector that champions the intuitive has already found a technocratic consensus on a compromise approach. Questions. All eleven suggested modes of idealism should, then, qualify as potentially equal determinants of the international legal system in the early 21st century. In the 1905-1991 period, down to the end of the period of Soviet-American rivalry, how much was accomplished under these eleven rubrics? What were the disappointments? In the light of these successes and failures, how should we assess the general health of world order in our own time? Preserving International Order Most of the prescriptions for a better-organized world between the 17th and 19th centuries included a proposal for a union or league of sovereign or otherwise advanced nations. In the Western world there was remarkably little embarrassment in claiming the existence of leader states, which, as a matter of political reality, should be granted the role of collective responsibility for controlling the spread of anarchy, chaos and violence in international society. Those considered best suited for the tasks of world leadership were considered qualiﬁed less by reason of their moral superiority than by their possession of eﬀective power.

Contemporary World Order in Profile

In the early modern era the risk of eﬀective misrule was assumed to be mitigated by the balance of power inherent among the most eﬀective nations. Critics of early blueprints for “perpetual peace” ranged from quietly skeptical to openly cynical. Given their record, the rulers and elites of those times could not possibly be expected to display the level of civic enlightenment necessary to justify the bestowal of superior collective authority. By the late 19th century, the proponents for international organization were less inspired by the maximal ideal of perpetual peace than by the attainable goal of minimal world order. The practical challenge was to invent a system of inter-state constraints on the worst excesses of disorder. The scale of chaos, futility and misery in the First World War convinced most doubters that, after so many centuries of disorder, the time had ﬁnally arrived for the boldest political experiment in world history. The Paris Peace Conference of 1919 provided the opportunity for a giant leap forward. The principal peacemaker in the previous year had been President Woodrow Wilson of the United States. On October 4, 1918, the German imperial chancellor, Prince Maximilian of Baden, informed Wilson that the German government was prepared to negotiate a peace settlement based on his peace program, which was outlined in a series of speeches delivered with a degree of Oriental panache: his Fourteen Points of January 8th; his Four Principles of February 11th; his Four Ends of July 4th; and his Five Particulars of September 27th. Wilson’s famous Fourteen Points comprised eight proposed territorial settlements and six propositions that might be described as “principles of world order”. The eight territorial settlements aﬀected Russia, Belgium France, Italy, Austria-Hungary, Turkey, Poland, and several Balkan states (Romania, Serbia, and Montenegro). The new Wilsonian “rules of the game” emphasized the virtue of “open covenants of peace, openly arrived at”. Resort to secret diplomacy (“private international understandings of any kind”) would have to give way to an era when “diplomacy shall proceed always frankly and in the public view”. The ﬁve other principles included: the absolute freedom of navigation outside territorial waters; the removal so far as possible of all economic barriers and the establishment of freedom of trade; a reduction of national armaments “to the lowest point consistent with domestic safety”; an equitable adjustment of all colonial claims that take into account the interests of the populations concerned; and of course, the formation of a general association of nations “under speciﬁc covenants for the purpose of aﬀording mutual guarantees of political independence and territorial integrity to great and small states alike. For the German government, representing a more-or-less defeated but still proud nation, the Five Particulars reconﬁrmed the conciliatory tone of the US program. This ﬁnal document insisted upon the principle of non-discrimination as a crucial feature of any peace settlement, which was conceived by President Wilson as resting on common interest. There would be no special interest arrangement for any group within the League of Nations, or any “selﬁsh prerogatives”. To avoid the danger of an inequitable outcome, all international agreements related to the peace settlement would have to be made known in their entirety to the rest of the world. On October 20th, the German government accepted three other stipulations preliminary to an armistice: the German armies must be withdrawn from all territories of the Allies;

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Germany must abandon unlimited submarine warfare, and terminate “all illegal and inhuman practices”; and the German people must free itself from its own arbitrary government elite that had conducted the war. The European leaders were not entirely comfortable with the proposal that peace negotiations with Germany should be based on Wilson’s Fourteen Points. Objections were raised by David Lloyd George (Great Britain), Georges Clemenceau (France), Vittorio Orlando (Italy) and Paul Hymans (Belgium). Many Europeans considered Wilson’s idealistic proposals ﬂirtatious, if not foolish. But it was an utopian moment in world history: perhaps even a time for tilting at windmills. As Margaret MacMillan (2002) reminds us, the peacemakers at Paris were there “because proud, conﬁdent, rich Europe had torn itself to pieces”. A “squabble for power and inﬂuence in the Balkans” had drawn in all the great powers. Of the European states of lesser magnitude, only the Netherlands, Spain, Switzerland and the Scandinavian countries had managed to stay out. Soldiers had arrived from virtually all territories of the British and French empire. Even more signiﬁcantly, the ﬁnal determinant of the outcome of the ﬁrst “world war” was the reluctant participation of the United States, defeated from its traditional policy of avoidance of foreign entanglements by relentless German attacks on American shipping. Could the great powers assembled at Paris by Woodrow Wilson agree on the re-shaping of the world by means of a global political organization based on widely shared commitment to the principles of world order? In retrospect, the Paris agenda was overloaded. Each claimant to a territorial settlement invoked the principle of “self-determination”, but, as MacMillan has explained at length, this popular watchword did not help to choose between competing brands of nationalism. Because of its vagueness, the principle seemed unlikely to be converted into a legal form that could generate speciﬁc territorial entitlements in the settlement of disputes. The delegations at Paris were hard pressed on all sides. Could such a benevolent high-level conference that was called upon to design an equitable system of world order along Wilsonian lines also dissolve the territorial tensions of Europe by imposing draconian punishment on Germany for starting such a calamitous war? Could such a political organization as the League of Nations, lit up by the attentions of the world press, deal thoughtfully with the need for a permanent infrastructure of independent technical bodies such as the International Telecommunication Union and independent hybrid organizations such as the International Labor Organization? Could the European powers, accustomed to ruling the world, ﬁnd a way to bring in the new rising powers like Japan and revolutionary governments such as that of the ﬂedgling Soviet Union? Was there a “natural” hierarchy of leader states? The United States had clearly become a part of the “ruling establishment”, but was it destined to become an “exceptionalist” phenomenon in world history”? In most matters, the Big Four (France, Great Britain, Italy and the United States) along with Japan contrived to keep most of the post-war plan under their control, minimizing the input of the smaller countries, but the membership of the key Commission of the League of Nations planning body was drawn from the political leadership of no less than fourteen nations. It was agreed by the Commission to use the US

Contemporary World Order in Profile

draft plan for the Covenant as the basis for discussion. In less than three months the revision process was completed despite the eruption of acrimonious debate on such matters as political equality, advocated by Japan, and the need for an international army to enforce the League’s decision, as advocated by France. A brisk tempo was maintained despite the need to put the draft into legal terminology by Sir Cecil Hurst and David Hunter Miller, the legal advisers to the British and American delegations. The ﬁnal draft of the Covenant was approved in plenary without change of a single word. The Covenant was remarkably concise, limited to 26 articles. The core of the League system was embodied in Articles 10-17. The ﬁrst of these called on all League members to respect the territorial integrity and political independence of all others. Article 11 aﬃrmed that any war or war threat was a matter of concern to the whole membership, and any member could require an immediate meeting to deal with the crisis. Under Article 12, all parties bound themselves to submit all “serious disputes” to peaceful settlement or to inquiry by the Council. Resort to war was to be deferred until the settlement procedures had been given a reasonable time to apply to the situation: arbitration, litigation, or action by the Council or Assembly (Articles 13-15). Under Article 16 all parties were obligated to participate in collective action against any other party in violation of the Covenant, which would take the form of economic sanction or, in the last resort, in the form of military intervention. The Council was empowered to expel any member in violation of the Covenant. Finally, Article 17 permitted the League system of protection to be extended against non-member states, and in certain circumstances on behalf of non-member victims of violations of the Covenant. The members of the League accepted other provisions that might be regarded as core norms of the new world order, such as Article 20 which stipulated that treaties inconsistent with the Covenant were automatically abrogated. More controversially, at least in Europe, Article 21 declared that the Covenant did not aﬀect the validity of the Monroe Doctrine. In other articles, the League agreed to bring a number of regulatory bodies, such as the Universal Postal Union, under their authority. Problems in health, commercial relations, drug control, and transport and communication were placed on the global agenda, reﬂecting the growing faith in the regulatory model of world order. The members agreed to establish an International Labor Ofﬁce, and promised to support the International Red Cross outside the framework of the League. For others who gave priority to the dispute resolution function of international law, the most important of the League’s decisions was the agreement to establish the Permanent Court of International Justice. For some, the Assembly, Council, Court and Secretariat established under the League bore suﬃcient resemblance to the legislative, executive, judicial and administrative branches of national government to sustain hope that the League of Nations was an initial break-through that envisaged the evolution of a future world constitution. The political failures in the operations of the League caused major disappointments around the world in the years between 1919 and its eventual replacement by the United Nations in April 1946. Some blamed the text as too timid a venture into the future: paciﬁsts criticized the lack of a ringing denunciation of war, even as a

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principled confrontation with the worst forms of aggression; some, at the other extreme, deplored the failure to establish a military force to ensure that crucial League decisions could be enforced in situations of urgency. Most commentators, however, have agreed that the ultimate collapse of the League was due much less to textual inadequacies than to a deep-rooted failure of political will in an age that had not yet rid the world of the appetite for wealth and territory. For most international idealists, the most painful disappointment of all was the anti-Wilsonian turn to isolationism in the US Congress. Most Americans were simply not interested in becoming entrapped in what was perceived to be a European experiment designed to extricate Europe from its own gigantic follies. Few Americans thought that their exceptionalist country was obliged, destined or ready to share in the ruling of the world. The distinguished professor from Princeton, an unusually principled politician, had not been in touch with his fellow-citizens. The thinness of American top oﬃcials and experts in the halls of Geneva contributed to the malaise of an organization that was seen to be premature. During the long demise of the League political realists were highly audible. Many felt that the Wilsonian package consisted of too little that was tried and true, and too much that was new. Many scoﬀed at the legacy of the Perpetual Peace tract of Immanuel Kant based on the belief that world order could be established only through a pact among democratically elected governments. Wilson’s liberal approach to world leadership had been similar to Kant’s, but he was moved by a more modern ethic that approximate independence should be the standard of eligibility for League membership. Kant and Wilson shared the conviction, which has endured to the present day, that democracies, unlike autocracies, tend to be inherently peaceful: “only a nation whose government was its servant and not its master could be trusted to preserve the peace of the world” (Claude, 1971). Those who admired the liberal foundations of the Fourteen Points saw the Second World War as the conﬁrmation of the anarchy and chaos that would ensue if the Charter of the United Nations was allowed to weaken on crucial principles for the preservation of world order. The collapse of world order between 1939 and 1945 did not produce a sense of total futility, as might have been expected, but instead a higher level of expectation that world diplomacy could produce an improved mechanism for eﬀective organization at the global level. A clear statement of resolve along these lines was promulgated at Moscow in October 1943, when the leaders of China, Great Britain, the Soviet Union and the United States met to discuss the case for a radical re-working of the League and its Covenant. The needs were usually discussed on political terms, but it was never in doubt that “world strategy” involved a sophisticated and comprehensive grasp of the development of world economic and other resources. Diﬀerences remained, but none of the powers denied the need for a strengthened world organization. Between 1943 and the end of hostilities in 1945, a huge eﬀort was begun to build a United Nations system that would consist of hundreds of post-war international agencies, envisaged two years before the oﬃcial creation of the United Nations. The foundations for the Food and Agriculture Organization were laid at a preparatory meeting at Hot Springs, Virginia in May 1943. In 1944 similar constitutive meetings for the International Monetary Fund and the International Bank for

Contemporary World Order in Profile

Reconstruction and Development were held at the famous Bretton Woods Conference. In the same year in Chicago the constitution of the International Civil Aviation Organization was drafted and made ready for approval and ratiﬁcation at the ﬁrst post-war opportunity to regulate the world’s aviation services. Older special-purpose agencies such as the Universal Postal Union, the International Telecommunication Union, the International Labor Organization, and the League’s unit for international drug control were prepared for integration into the new network of the United Nations. The Permanent Court of International Justice (PCIJ) was strengthened and improved as the World Court, under the new designation of the International Court of Justice (ICJ). In all this eﬀort to bring the United Nations together out of the semi-ruins of the League, there was no question about the future dominance of the United States. The old European order of things had indeed changed. No one else during the war had the opportunity, the resources and the energy to drive the huge UN project forward. Much was accomplished under the leadership of Cordell Hull, the US Secretary of State, but it would be hard to overstate the impact of American presidential prestige. More than any other of the powerful statesmen of his day, President Franklin D. Roosevelt was the spiritual father of the United Nations. Roosevelt’s earliest references to the “United Nations” in 1943 as a wide and permanent system of general security were slow in jelling. At ﬁrst they were suﬃciently ﬂexible to accommodate Churchill’s preference for three regional councils – for Europe, the Americas, and the Paciﬁc – but the project became universalized as Roosevelt convinced himself that the “real decisions should be made by the United States, Great Britain, Russia and China, who would be the powers for many years to come that would have to police the world” (Meachan, 2004). Roosevelt’s determination to include Chiang Kai Shek’s China among the “Four Policemen” incurred the annoyance of both Churchill and Stalin, who had rather divergent views on China’s future role in world leadership. Even although Roosevelt did not engage himself directly in the detailed planning for the new organization as Wilson had done for the League, and did not live to attend the constitutive San Francisco Conference, as he had hoped, the organizational accomplishment owed most to American bureaucratic energy and to remarkably determined cosmopolitan elites driven by Roosevelt and Hull, including the personal relationship between Roosevelt and Winston Churchill themselves. There is no questioning the extent of American inﬂuence on the original drafts of the UN Charter. Yet even the Great anti-Axis Powers – the United States, the Soviet Union, Great Britain, France and China – had signiﬁcant diﬀerences among themselves, and some diﬀerences hardened when it became necessary to consult with the lesser – or “middle” – states. As a result of these political realities, the UN Charter that began as a draft in the US Department of State became eventually a “hammered-out document”. As Claude (1971) has written, that document would become the “product of the most multilateral debate ever held for the shaping of the broad outline of the world political system, and the reﬂection of the best ideas on international organization, and the best compromise on points of national conﬂict that the statesmen of ﬁfty nations would produce”.

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It might be worth pausing to reﬂect that the mid-20th century conception of world order had advanced beyond an old corpus of formal rules – the traditional normative system of jurist’s law to a much larger phenomenon that included a complete worldwide system of authoritative institutions and now a document of unassailable legal authority that would eventually gain credence as the secular world’s “sacred text”. Even many Soviet jurists, expected to distrust the UN as a political organization, were respectful of the UN Charter as the supreme legal text at the universal level (Macdonald, 1999). Soviet idealists were not alone in their Marxist-Leninist veneration of the UN Charter. Many Chinese and other communist jurists shared high regard for the paramountcy of the Charter as a legal text (Cohen and Chiu, 1974). By then, on matters of the highest legal importance, arguments and counter-arguments could select from three distinct domains: from the norms of “jurists’ law”, from the institutions of the UN system, and from the leading texts and reports drawn up by the most creative institutions: that is, the normativists, the institutionalists, and the textualists. With the introduction of the UN and its Charter, a leading textbook of United Nations law (Sohn, 1956) could envisage this new terrain as consisting of nine principal parts; A. Problems of Organization (admission to membership; withdrawal, suspension and expulsion of members; representation) B. Functions and Powers of the Security Council (origins of the vote; abstention on voting; voting on “procedural” questions and “double veto”) C. Functions and Powers of the General Assembly D. International Status of the United Nations E. Jurisdiction of International Courts F. Maintenance of International Peace and Security (civil wars and similar threats to peace; changes of government and United Nations intervention) G. Human Rights and Domestic Jurisdiction H. Protection of Non-Self-Governing Peoples (trusteeship questions; development of non-self governing territories; application of principle of self-determination) I. War, Aggression and Other International Crimes (proscription of war, deﬁnition of war; deﬁnition of aggression; punishment of crimes against peace) Following the preparatory meetings of the four Powers at Dumbarton Oaks in 1944 and the leaders of the Big Three (Churchill, Roosevelt, and Stalin) at Yalta in February 1945, the decision was taken to call a general conference of some 50 nations to consider a constitution based on the Dumbarton Oaks proposals. At Yalta divisive issues on the proposed Security Council were resolved among the Big Three at the highest geopolitical level. Two months later forty-two countries sent representatives to a meeting of the Committee of Jurists and drafted a proposal for an International Court of Justice, which would be fully integrated into the UN Organization. The key conference at San Francisco succeeded in attracting agreement on both the Charter and the Statute of the ICJ. In light of the war-stressed times, it seems remarkable that a plan for peace management could be completed within a couple

Contemporary World Order in Profile

of calendar months in such a comprehensive form. The ﬁnal structure consisted of a slightly decentralized version of the original model. The only principal organ acceptable to all members of the UN was the General Assembly, which to the distress of world federalists and other advocates of “world government”, was not granted the power of a legislature. Generally, its authority was restricted to making recommendations, and not legally binding decisions. Indeed, its decision-making mandate extended only to certain budgetary matters and to the admission, suspension or expulsion of Members. In later years the non-binding recommendations of the Assembly were considered to have gained some legal eﬀect within the overall range of authorization possessed by the UN as a whole. It was the one organ that could claim to speak from a universal perspective. The text makes it clear, however, that the Assembly is essentially a deliberative body with powers of discussion, investigation, review, supervision and criticism. The primary responsibility for the preservation of international order and security is given, very clearly, to the Security Council, although this has not prevented the Assembly from acquiring a useful supplementary role in a number of intervention situations. If we regard the UN system as a potentially constitutionalist order, the Security Council in 1945 comes much closer to the analogy of an international executive than the Assembly does to the model of an international legislature. The Council functions autonomously as the only arm of the Organization that can be convened within hours and it has uncontested authority, within the prescribed ambit of international peace and security, to make legally binding decisions for the whole membership, without any duty to consult. It was set up to be eﬀective, not democratic. Its ﬁve permanent members (China, France, Great Britain, the Soviet Union and the United States) were chosen to control the system as the victorious Allies of the Second World War, despite the inevitable appearance of unfairness and paradox as the dynamics of international relations changed. Since then Great Britain and France have displayed no willingness to sacriﬁce their prestigious seats in order to facilitate a more equitable, more universal arrangement. The non-permanent members of the Security Council do, of course, have an eﬀect on the passing of any Resolutions, but the political (and legal) authority of the Big Five within the Security Council has been enhanced immeasurably not only by their permanence but by their possession of a “veto”. Security Council decisions on procedural matters under the Charter are made by an aﬃrmative vote of its members, but on all other matters the decisions are not legally binding unless the concurring votes of all ﬁve permanent members are included. Both under the Charter and in practice, the “veto” system is not quite as rigid as it appears: for example, the voluntary abstention of a permanent member is not considered to be a veto. The possibility of a withholding of consent by any of the Big Five is a consistent and sobering prospect in matters of great importance, but it should not be exaggerated as if it were the only blockage in the Security Council. One writer has suggested that even in the absence of a veto, which does have the virtue of identifying the blockage, some alternative methods of abstention would have been developed, leading to equal abuses and absurdities, or certain powers might have quit the Organization, as happened under the League in the later 1930’s (Starke, 1963).

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The operational diﬃculties that have arisen in the Council stem directly from the language of the Charter describing the powers and functions of the Council and related matters. These will be reviewed brieﬂy in the following sections on the “war prevention and management” and “constitutionalist” models of contemporary world order. Regulating the Use of Force We have ﬁnally caught up with Chapter One. The section there on “Sovereignty and Intervention” was chosen to illustrate the central importance of the Security Council under United Nations law. It revealed highly publicized diﬃculties that that political body had encountered in discharging its unique and legally unchallengeable responsibilities for the regulation of force under the Chapter. The paradox of the situation was that the Council was created by the political will of the “Big Five”, by the most skilful practitioners of Realpolitik in modern history, and yet their creature was given the highest level of legal authority ever vested in an international institution. Its mandate is set out in what is widely held to be the apex of the hierarchy of international legal texts. Not surprisingly, the UN Security Council has generated intense heat among the most committed idealists (normativists, institutionalists and textualists), but also among political realists who see its function principally in geopolitical or strategic terms. Complicating everything, of course, is the extremely emotive nature of the ethical issues behind the legal language of the text. How well, or otherwise, has the Council coped with the impossible task thrust upon it? The inadequacies of the traditional law of war had been exposed in the First and Second World Wars. Wars were no longer fought for military success on the battleﬁeld, but for total victory. Uniforms alone no longer directed the line of ﬁre. As ideologies served to expand the scope of the “enemy”, in the Second World War, total warfare required the all-out eﬀort of the total national population. Historians still dispute the statistics of paciﬁsm through the ﬁrst half of the 20th century. An abundance of social and literary sources supports the theory of patriotism, especially in Europe in that period, but paciﬁsm became a large-scale, articulate, social movement, especially in the Western world, in the years following the Second World War. It is diﬃcult to identify a truly popular large-scale war after 1945. The popular rejection of militarism in most parts of Western Europe represents a major cultural shift in those countries most directly responsible for the conduct of warfare in the centuries down to 1950. As in the past, much of the modern anti-war sentiment focused on the moral necessity to limit the scope of war. In 1925 an arms limitation treaty (the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating Poisonous and Other Gases, and of Bacteriological Methods of Warfare) was concluded under the auspices of the League of Nations. It was the result of very strong sentiment against the Germans’ use of large amounts of chlorine gas during the First World War. But, although it gathered an impressive number of signatures – 38 at its conclusion, and eventually over 130 – the Geneva Protocol was essentially a “demonstrative”

Contemporary World Order in Profile

instrument. It was not designed to have a decisive operational impact. It did not speciﬁcally prohibit the manufacture of chemical weapons; it contained no provisions for the punishment of parties that resorted to the use of such weapons; and it made no eﬀort to deﬁne “other gases” that were similarly banned. No chemical weapons were used in combat during the Second World War, but the unused stockpiles in Germany in 1945 fell into the victors’ hands, and soon the scale of the chemical weapons industry was growing beyond anyone’s expectations. The diﬃcult task of implementing international regulatory controls over weapons was just beginning. Of course, it was the invention of nuclear weapons in the early 1940’s, not of chemical weapons in the First World War, that assigned urgency to the regulation of what would later become known as “weapons of mass destruction” – biological, as well as chemical and nuclear. The familiar story of the Manhattan Project need not be repeated here. It was the fear that Nazi Germany would be the ﬁrst to develop the most lethal technology in military history that drove the desert project forward, in time to ensure a quick end to the war against Imperial Japan. Throughout most of the remainder of the 20th century, the vision of an all-out global nuclear war was the recurring nightmare of all humanity. It was that awful possibility that propelled the apparatus of world diplomacy toward the goal of war prevention and management. The 20th century eﬀorts at war management began in 1907 in much the same way as their predecessor of 1899, at the Second Hague Peace Conference. Prominent statesmen, diplomats, oﬃcers and jurists resumed formal negotiations of topics covering essentially the same agenda set up eight years earlier. As we look back on that process as a nearly continuous eﬀort of the 20th century and beyond, it might be useful to focus on several distinct approaches to the management of war that are often lumped together under the generic heading of arms control and disarmament. The principal idea of disarmament has always been to eliminate the means by which it is possible to conduct war. It avoids the need to analyze the causes of war, to hold any one belligerent state as responsible. Disarmament measures do not explain or punish. Such a policy does not need to distinguish between the warlike and the innocent. Taken literally, disarmament has broad appeal as a simple and direct path to peace. Its popularity in contemporary times owes much to a widespread distrust of the professional military establishment, especially in countries like Germany and Japan that have espoused the cause of liberal democracy after suﬀering the consequences of sustained suppression by their own militaristic elite. In 1927 the most active paciﬁst in the West was the American Frank B. Kellogg, who had established himself as one of his country’s leading advocates in the Standard Oil trust case. Between 1925 and 1929 he served as Secretary of State in the cabinet of President Calvin Coolidge. His moderation was conspicuous in his dealings with Mexico and China. Along with British and Japanese support, he helped convene a naval conference at Geneva to limit the number of cruisers, destroyers and submarines at sea, but his diplomacy was torpedoed when the British, reluctant to accept their reduced imperial status in the world, refused to grant parity in gun-heavy cruisers to the Americans. Kellogg’s greatest bid for renown, however, was the Kellogg-Briand Pact, which originated in a proposal by the French Foreign Minister, Aristide Briand, for a bilat-

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eral treaty renouncing war as an instrument of policy and agreeing not to seek the settlement between the two countries except by peaceful means. Kellogg responded by suggesting a multilateral agreement along the same lines which would be open to all nations. Although it collected no less than 63 formal ratiﬁcations, it proved to be an exercise in self-deception. Too many countries were ready to ﬁght for their “rights”. It was a sad blow to a genuine American isolationist in the Jeﬀersonian tradition. Today, as we look back, how do we account for so many expressions of consent, and the total failure to comply? In practice, the ideal of peace can be promoted, but the reality of permanent peace cannot be realized, merely through a policy of general disarmament. Yet by the 1950’s, advocates for unilateral disarmament had joined forces with anti-nuclear protesters to form a popular paciﬁst campaign of formidable proportions, especially in the Western world. However, very few of the greater or lesser powers, East or West, have found these general calls for general prohibition a realistic approach to the management of modern war. By the 1950’s most students of international relations were being inﬂuenced by the works of political realists such as Hans J. Morgenthau (1891-1967). In his Politics among Nations (1949), the famous “crusader of realism” asserts that international politics, like all politics, is a struggle for power. Every regime, he suggests, tends to have the same kind of foreign policy, shaped by the overriding national interest in survival. But most of us today recoil from such an uncompromising brand of cynicism. Can we simply lump together the foreign politics of Napoleon, Hitler, and Stalin as of the same kind as those of Louis XVI, Adenauer, or Nicholas II (Aron, 1967)? Morgenthau himself started his career as an international lawyer, but his loss of faith in the League of Nations led him to question the potential eﬀectiveness of consensual (or collateral) international law, and a kind of world order that depended on a sharing of enlightened common interest among the holders of great power status. Generations of students in that era, despite the early promise of the United Nations, were persuaded at least to believe that diplomatic-strategic behavior everywhere comes down to “selﬁshness, and calculation of forces, to a variable mixture of hypocrisy and cynicism”. Less extreme realists, like Raymond Aron (1905-1983) found refuge in philosophic ambivalence. In 1933, he quoted with approval the view of the legal idealist Hersch Lauterpacht (1897-1960) that peace, in a sense, is a legal postulate, and yet “morally indiﬀerent, insofar as it may imply the sacriﬁce of justice on the altar of stability and security … a metaphor for the postulate of the unity of the legal system”. Despite his respect for the ultimate goal of peace, Aron saw too many basic imperfections in the normative structure of international law to have conﬁdence in the resolutive role of juridical science. Occasionally, a politician or political party rose to prominence in the second half of the 20th century by endorsing a populist approach to the prevention of war. But the most powerful bureaucracies of our own era have had little choice but to strive for sophistication, rather than virtue, in dealing with matters of inherent complexity – not only in confronting issues of domestic policies but, even more so, in thickly convoluted matters of foreign policy. It has generally proved diﬃcult for the “leader states” to maintain a high degree of consistency in the conduct of international relations.

Contemporary World Order in Profile

Those who favor dogmatism in defense of principle often suﬀer from frustration that the still largely ungovernable world community cannot be kept to a straight and narrow path. With some reluctance, most citizens today probably feel obliged to accept the information and perceptions gathered by bureaucracy concerning the changes constantly at work in world society, except occasionally when these sources of oﬃcial knowledge turn out to be unreliable and there is no other version on the table. In sharp contrast with realists and skeptics like Morgenthau and Aron, many idealists were prepared to take a more optimistic view of the League and the United Nations, and the proliferating international agencies associated with them. Some, in direct descent from the traditional quest for perpetual peace, saw the rise of permanent tribunals such as the World Court – the PCIJ, followed by the ICJ – as an alternative to war. Yet, in truth, very few of the disputes settled by either of the courts could be said to have saved the world, or a region, from the imminent eruption of a destructive war. Rather they saved the disputants, and sometimes a third state, from embarking on a more dangerous form of coercive diplomacy. To the extent that the international diplomatic community could agree on a single peace-serving strategy that would include various elements of arms control and disarmament, it was the pragmatic strategy of preventive diplomacy. It was Dag Hammarskjold (1905-1961), the second Secretary General of the United Nations, whose name became linked with the concept of “preventive diplomacy”, just as the earlier concept of “collective security” had become associated with the idealism of Woodrow Wilson. A product of the Swedish school of professional diplomacy, Hammarskjold understood the need to ﬁnd a new balance between old and new techniques of persuasion within a huge organization as complex as the UN (Barros, 1979). But he knew also that most of these techniques depended on the strengthening of the oﬃce of the UN Secretary- General beyond what was originally envisaged as appropriate under the Covenant. The strengthening of the Secretariat under Hammarskjold required acknowledgment by the Big Five that the security role of the United Nations could not be sustained by sole reliance on the explicit and rather modest administrative mandate assigned to pioneering Secretaries-General such as Sir Eric Drummond and others between 1919 and the early 1950’s. The emergence of two superpowers with nuclear capacity had transformed the ethos and framework for the conduct of international relations. Quite apart from its Charter-based responsibilities for the preservation of international peace and security, the Security Council had to be assisted by the other organs of the United Nations to navigate through the dangerous rhetoric of the Cold War. Reluctantly, the Big Five conceded that only the Secretary-General on behalf of the whole organization could undertake this sophisticated task of supercoordination. Through numerous interventionary situations in the 1950’s and beyond, compromise decisions had to be negotiated that belonged to the bipartite world of cold war diplomacy, rather than the global arena for the maintenance of world order. Among themselves the Europeans had designated their own brand of bureaucracy with very little dependency on other systems of public administration that had been evolving elsewhere for centuries. But it was the ﬁrst regional or cultural system of public service that could be said to have the making of a universal system of trans-

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national state governance. The making and maintenance of international agreements was the primary purpose of this new more hopeful system. Gradually, the multilateral treaty has become the best hope for the institutionalization of a truly universal community. Now, all of us live in an inexorably complicated world. Only the most sophisticated talents of the international bureaucracy in combination could be expected to oﬀset the selﬁsh interests and biases of the most forceful national societies. If the mid-20th century were to survive further wars and calamities on the scale of the Second World War, it would be essential to ﬁnd common trust in the increasingly massive infrastructure of international organizations and agencies. For most of us, as modernists, we have no choice but to trust modern world bureaucracy. In earlier history it was easier for our predecessors to place their faith in pre-modern religion or early modern world empire. Living in simpler times made fewer demands on human sophistication, which we now seem to depend on, for our survival, more than ever. In the 1960’s and 1970’s, faith in the United Nations was more than matched by faith in the European Union, at least on the part of the European international idealists whose spirits had been most severely crushed by the calamities of the Second World War and the earlier political feebleness of the League of Nations. Despite the popularity of political realism in that era, most Europeans took consolation in the wholly European birth and adolescence of an organization that exempliﬁed much of the ethos of the League, a failed but still noble and sophisticated organization at the international level that raised hopes for a more determined second eﬀort to create a politically workable world community. By the mid-20th century, of course, there was a close symbiotic relationship between the normative tradition of international law and the institutional eﬀectiveness of international diplomacy. Each system depended on the other. Anything as political as the United Nations was bound to be, designed to resolve the tensions of a sharply divided world, required an ethos of longstanding: ideally, one that could claim to have its earliest foundations in classical antiquity, if not in an even earlier, more dimly perceived, stage of human civilizations. To reduce the corrosiveness of political cynicism, it was essential that the international agencies entrusted with these responsibilities could be organically linked with the ablest and most cosmopolitan of the national bureaucracies. For the preservation of peace and international order – including the prevention and management of war – most international lawyers of that era were having difﬁculty in bringing those fundamental problems into the traditional juridical framework. Even those “classicists” willing to concede the primacy of the UN Charter as the “sacred text” of the growing family of major international legal instruments were not yet ready to abandon the more juridical task of establishing a hierarchy of basic norms and of seeking consensus on the identity of the grundnorm (the most fundamental of all norms within a vast and ancient tradition of international legal norms). For centuries many jurists had been convinced philosophically that there had to be a grundnorm somewhere. For positivists, building a vast ediﬁce of sovereign state, the purist form of international law had to reside outside the realm of state entitlement: that is, outside what is still essentially a system of sovereignty rather than within a

Contemporary World Order in Profile

system of legal obligation. Even war had to be accommodated. But the Geneva law of war, codiﬁed belatedly four years after the end of the lawless Second World War, had to be fundamentally reimagined. The world community strategy for regulating the use of force in the ﬁnal third of the 20th century became remarkably sophisticated, becoming integrated with a number of other reformist agendas. It may be suﬃcient to summarize some of the more conspicuous. Most of these developments were conjoined as regimes at the same level of fundamental normative signiﬁcance. One prominent example of innovative change occurred in three principal contexts of basic legal regime development. The ﬁrst envisaged a demilitarization of Antarctica as part of the seminal 1959 treaty designed to govern the status of that frozen uninhabited landmass. To the idea of prohibiting all military uses of that mysterious continent – the last component of our ﬁve-continent universe – was added the goal of converting Antarctica essentially into a global scientiﬁc research laboratory serving only peaceful purposes. Only the later possibility that international research could be applied – or perverted – for industrial ends, for the extraction of mineral beneﬁts, brought controversy into the great Antarctic debate: a controversy that ﬁnally threatened the original design, as more and more people were converted to the view that Antarctica should be kept pure as an environmental haven from the threat of industrial pollution. A somewhat similar eﬀort to preserve what became known as the “common heritage of mankind”, applied to the international seabed and subsoil, was the chief focus of a bold experiment in basic legal regime reform from the mid-1960’s, as described in Chapter One. As noted there, this famous innovation was part of an even larger project to restructure the law of the sea as a whole, in the hope of preserving the riches of the deep ocean ﬂoor, believed then to consist mostly of manganese nodules as well as copper, zinc, and other metals. The common heritage idea, transcending the traditional concept of a sovereign state’s maritime jurisdiction, was intended exclusively for the beneﬁt of developing states deprived of normal access to islands, archipelagos or landmasses. An even more visionary kind of legal reform, focusing on the moon and other celestial bodies was an early feature of outer space law. The purpose behind the famous treaty of 1967 was to preserve outer space indeﬁnitely for peaceful uses. Militarization of outer space was seen by most observers in that era to be an unnecessarily dangerous extension of Cold War threats. Fortunately, it proved to be a matter on which both sides of the Soviet-US rivalry could agree. A quite distinct approach to war prevention or management in the 1960’s focused on the need to deﬂect nations at large from the temptation to build up nuclear, chemical or biological armaments. The most notable outcome of that diplomacy was the 1968 Treaty on the Non-Proliferation of Nuclear Weapons, followed a generation later by the 1993 Convention on the Prohibition of the Development, Production, Stockpiling or Use of Chemical Weapons and on their Destruction. Unavoidably, the notion that such arms should be limited to powers that already possessed that capacity ran into the thorniest of thickets. Because control over this experiment was maintained by the rival superpowers, it was possible for several decades to use the

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logic of mutual deterrence to discourage serious violations of these non-proliferation arrangements. But as the Soviet-US entente weakened under the burden of cost, it became more diﬃcult to explain why ambitious energy-deﬁcient states should be kept out of the privileged elite. By the end of the 20th century, under the cover of innocent intention to develop a non-military strategy of energy polic, or otherwise, it had become diﬃcult to prevent countries such as Israel, Iraq, Syria, Iran, North Korea, Pakistan, India and others to accept prohibitions imposed in an earlier era. As we have seen in Chapter One, eﬀorts by the International Atomic Energy Agency and other regulatory bodies subject to UN Security Council authority have been engaged in the diﬃcult challenge to protect the system of international regulatory control over peaceful and non-peaceful uses of nuclear energy. It cannot be said that the 21st century arrived with a clear view of the prospect of success in this frustrating sector of non-proliferation. Had the world community taken on more than it could handle through the normal means of preventive diplomacy? Meanwhile, other kinds of diplomatic initiatives were taken. Some optimists felt that a formal act of designation should be suﬃcient to protect a treaty-deﬁned region from the risk of nuclear use, inﬂuenced by the model of the Antarctic Treaty of 1959, but without any of the apparatus to develop and maintain a unique presence or status that would justify resort to designatory diplomacy. In 1985, for example, the South Paciﬁc was declared by regional treaty to be a nuclear-free zone, both for military and non-military purposes. In 1995 similar initiatives were taken to preserve Africa and Southeast Asia as nuclear weapon-free zones. Earlier, of course, even more traditional methods of bringing peace to notorious war-risk areas were also adopted, such as the Sino-Soviet Treaty of Friendship, Alliance and Mutual Assistance of 1950 and the China-Japan Peace and FriendshipTreaty of 1978. Promoting World Constitutionalism Few would wish to deny the importance of the great 20th century experiments in the establishment and maintenance of an organized world community. As long as the old law-of-nations heritage, associated especially with continental Europe, continued to evolve as a normative tradition, in the absence of competent international institutions, the impact of internationalism on world history would owe much more to the idealism of the tower than to the practical judgment of the arena. The not sogradual development of a permanent, professional, international civil service, not least through the League of Nations and the United Nations, was to prove the most important single stabilizer of world society in an age of potential enlightenment and sophistication. But how much weighting should be given to the value of stability in a society so dangerously prone to almost unrestricted change? It is not a simple matter of choice. Change is inherent in human aﬀairs, at least under the liberating conditions of a modern democracy. Stability has almost always to be organized. To lawyers in general, it often appears a matter of professional obligation to press the beneﬁts of legal structure and process upon the rest of society. At the highest level of legal authority, hierarchical priority might seem to point to world constitu-

Contemporary World Order in Profile

tionalism as the ultimate goal of an international legal system. Yet for over sixty years it has proved extremely diﬃcult to clothe even the world’s most authoritative institution with fully constitutional dress and propriety. Is world constitutionalism the most utopian of the eleven modes of world rule compared in this work, and, if so, is it for that reason the most important of all to promote at the present stage of world order priorities? Jurists most anxious to press the case for re-constitutionalizing the United Nations – and indeed the hundreds of other ancillary services that make up the full weight of authority at the global level – are likely to put the greatest value on legal form and procedure at the heart of international decision-making. To lawyers who look with suspicion at other sources of human benevolence – such as religion, morality, culture, political loyalty, friendship and regional aﬃnity – there might seem to be a purity, unmixed with more dubious human values, in a wholly legal ideal for a cooperative human society. Despite the long quest for permanent peace, almost continuously since the late Middle Ages in Western civilization, the ideal of a world constitution, as such, is a relatively new one. Ever since the proposals for a league or coalition of leading nations became a common intellectual aspiration in the late 19th century, the goal of a universal text for such an authoritative institution could be articulated in constitutional terms. But the legal infrastructure of the evolving world community at the beginning of the 20th century still put the sovereignty of the independent state at the apex of international legal ideals. To most people before the end of the First World War, the natural world order was one of nation-states propelled chieﬂy by considerations of legitimate national interest. Power and responsibility, it was usually suggested, went together. Most non-paciﬁsts, at least, seemed satisﬁed that the best imaginable world would be one in which idealists in the tower had the chief opportunity and duty to inspire and encourage the emergence of a more benevolent world, but in which the realists in the arena had an equally important part to play in the balancing of practical and utopian considerations in the shaping of world order for the 20th century. Readers are likely to be divided over the best allocation between the “resources” of the tower and the arena. Most of us surely still believe in the potential benevolence of national interest. But surely few are prepared to deny the role of the United Nations today as the principal barrier to the return of a grossly anarchic world. For many, the ground to be held is the principle of state equality, deserving protection against the encroachment of political hegemony. For most writers, hegemony is not a legal concept. It falls outside the domain of international law as a threatening fact of contemporary political life. For civilians and other lawyers, trained to limit their hopes to what can be accomplished within a wholly depoliticised world of legal rules, world constitutionalism is often invoked as the best institutional defense against a world of disorder, violence and even terror. For those who look upon international law most darkly as a history of moral failure, hegemony is not so much an evil as a guarantee that history will continue, as always, to miss opportunities for world reform along collaborative lines. Equality was, of course, especially venerated during the early years of bilateral peace treaties. In the Sino-Japanese Treaty of Peace and Friendship of 1978, hegemony was explicitly ruled

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out in Article II. Of course, both parties to that instrument had a special historic reason to resent the coercive use of treaties and norms of international law by Western powers in Asia in the “pre-classical” stages of the discipline. On the other hand, there are many in the international law community, especially in North America, who accept that the rule of law in world aﬀairs rests ultimately on political foundations. For them it is possible to take a principled position that although a hegemonial power, possessing privileged status in political terms, “must as a corollary be prepared to assume speciﬁc obligations which an ordinary State does not have to shoulder” (Thomuskat, 2005). In recent years, anti-hegemonialists have been particularly disappointed by the record of the US government, especially since the accession of President Ronald Reagan to the White House in 1980. Not least among the US government failures that have caused so much distress, especially on the continent of Europe, has been the US government’s remarkably consistent reluctance to ratify, or even sign, major world order treaties, even for the most urgent purposes of war prevention and management. In the latter years of the 20th century, environmentalists and other kinds of international legal idealists have had equal reason to question the degree of US willingness to accept new opportunities to advance to a more sophisticated rule-of-law ideal. One of the most disturbing features of contemporary world order in the early 21st century is the prospect of a highly organized but dangerously asymmetrical universe in which the United States, as the only remaining superpower, has virtually total freedom to “pick and choose” which parts of the newly-hammered-out global regimes and treaties to acknowledge as necessary components of world law or world order. To save the world community from an unprecedented strategy of unilateral privilege – or from a return to the schismatics of a “two-church” culture – nothing, it might seem, is more important than an entire transformation of US foreign policy, or at least a rededication to an inclusive goal of rule by law. Rather than engage in the polemics of the early 21st century, it might be more appropriate for a historian to concentrate on the decisions that marked out the leading intellectual personalities during the great internal debate on the kind of constitutionalism that should be embraced by the Founding Fathers. It was during the sticky Philadelphia Convention of 1789 that the borderlands of the American civic identity were mapped out. The modern constitutional model of international law has been assembled out of various, mostly Western, modes of civic idealization. A large, if slowly evolving, role was played out through the British parliamentary version of the rule-of-law tradition. Much accrued thereafter as contributions from an expanding Western bill-of-rights legacy, with the United States the most innovative force both within the arena and the tower. The Dutch and Swiss in the 17th century should be acknowledged as important civic pioneers in the late colonial development of Republican theory before the ﬁring of the ﬁrst rebellious shots in the 18th century. Tribute should be paid also to the German doctrine of the Rechstsstaat. Especially in more modern times, when the “transactional” phase of the law of nations yielded much to the “organizational” innovations of the 20th century, remarkably creative thinking about the structure and process of world constitutionalism emanated from the great Western European

Contemporary World Order in Profile

debates on regional integration, inspired by the steady progression of the European Union and its predecessors. World constitutionalism cannot, however, be said to have emerged with equal clarity as an “ideology” outside the known history of Western civilization. It seems reasonable, then, to search for the elements of constitutionalism within a relatively coherent Western set of ideals. It is a concept derived from the theory of the Western state. It can be treated semi-ironically as “the name given to the trust which men repose in the power of words engrossed on parchment to keep a government in order” (Hamilton, 1990). The theory of the state extends back at least as far as the classical antiquity of Greece, India and China, and no doubt other systems of civilization, but it is common in the generous tradition of the 18th century classical studies to elevate Cicero as the ﬁrst constitutionalist in any modern sense. It was in the light of the Athenian model of democracy that the Romans of the republican era insisted upon – or conceded – the right of the common people (the plebeians) to grant or withhold consent to laws intended to bind the entire community, but it was the Romans such as Cicero who ﬁrst developed the idea of democracy as a constitutional right. “When the framers of the United States Constitution created what they termed “a government of laws, not men, they were in eﬀect reasserting Rome’s better self ” (Payne, Ancient Rome, 2001). None of the earlier, pre-Roman literature on the theory of the state, East or West, captures the constitutionalist ethic of the modern era (McIlwain, 1940). The complexity of modern constitutionalism is reﬂected in the remarkable heterogeneity of such propositions as these: (i) a constitution is fundamental law; (ii) a constitutional amendment requires special, rather onerous, legislative procedures; (iii) “true” constitutional principles cannot be cobbled together in a made-up document, but must be seen to reﬂect the customary “living law” of the people; (iv) modern constitutionalism is derived, above all, from the sovereignty of the people; (v) a constitution is presumed to acquire its ultimate authority from a primordial “social contract”; (vi) the ethical core of constitutionalism is a bill of rights that guarantees legal protection to individuals and minorities from the threat of tyrannical rulers, elites and majorities; (vii) constitutionalism rests on a “separation of powers” (i.e. limitative checks and balances) among the organs of the state; (viii) in a healthy constitutional system, the judiciary should be authorized to review, and, if necessary, invalidate “ordinary” legislation that is seen to depart from the core norms of the constitution; (ix) in exercising the power of judicial review, the courts may invoke the generally consented “common law” of the land to invalidate norms inconsistent with it; and (x) in a federal state especially, constitutionalism requires an agreed-upon system for allocating powers to the diﬀerent levels of government.

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Several, but not all, of these propositions would be insisted upon by all as central to the notion of constitutionalism. But which? Even if we restrict the concept to these ten elements, the “constitutional model” of international law will be seen to be seriously incomplete in comparison with domestic models operative in the most highly “constitutionalized” national societies. Certain of these ten propositions are not applicable to international law. For example, the third (“living law”), fourth (“popular sovereignty”) and ﬁfth (“social contract”) propositions oﬀer theories that cannot ﬁt the social reality of the highly heterogeneous “world society”. The “world government” or “world federal government” system of rule is not yet suﬃciently universalized for the seventh (“separation of powers”) criterion to be invoked. Since the International Court of Justice lacks the power of “judicial review” over international “legislation” (however deﬁned), the eighth determinant drops out of the international. Since international lawyers have diﬃculty in agreeing on universally shared norms that could be considered the foundation of a global constitution, the ninth (“common law”) element is of doubtful relevance. At the global level of political organization, no system exists to reﬂect the distributive (“allocation of powers”) function of constitutionalism (Johnston, 2005). Accordingly, the current international law reﬂects only three of these suggested features of constitutionalism: the admittedly paramount legal status of the UN Charter (i); the diﬃculty (or near-impossibility) of achieving signiﬁcant amendment of the Charter (ii); and the existence of an ethical core in the system by virtue of a “bill of rights” nucleus of civil rights principles, covenants and supportive instruments (vi). The unsuccessful eﬀort to eﬀect world summit reform of the UN in November 2005 creates the need for a three-way struggle. Although this must be judged a “failure of the arena”, reﬂecting a lack of political will, generosity or imagination, there is surely no compensating consideration for the jurists of the tower; and even counter-state ethicists who look to international law in its “societal” mode as the chief hope for an international public morality in the early 21st century, are unlikely to reject the need for a constitutional core within the inter-state system in order to embrace human welfare systems at the nation-state level. Trends toward the constitutional model of international law are clearly visible in a number of contexts outside the framework of the original UN Charter: for example, in the rapidly expanding ﬁelds of human rights, international trade law and international criminal law. The 20th century ended with a robust academic debate on the prospect of “reconstitutionalizing” the United Nations. Most idealists are likely to argue that the international law of human rights is the ethical core of world constitutionalism. It is now the focus of numerous monitoring organizations around the world. Despite this attention, dozens of national governments, and many powerful, even ruthless, non-state entities continue to be suspected as persistent human rights oﬀenders. The establishment of the World Trade Organization has led to a major restructuring of the global economy. Some commentators recognize this development as a trend to the “constitutionalization” of world government, reﬂecting a “separation of powers” in the prescriptive (legislative), bureaucratic (executive) and resolutive (judicial) sectors of the world economy (Jackson, 1987). Moreover, the addition of several new international criminal tribunals near the end of the 20th century has given hope of

Contemporary World Order in Profile

ﬂushing out war criminals and similar oﬀenders from behind the traditional barriers of state immunity, despite an abundance of technical diﬃculties that limit the ﬂow of professionally reliable testimony. Most observers are likely to remain cautious on the extent of progress that we might expect in the realization of genuine ‘judicial independence” at the world community level (Young, 2003). In recent years it has been normal to blame the US government for leading a strategy of resistance to world constitutionalism. But there are many diﬀerent kinds of resistance to internationalism in general throughout the pages of world history. What marks out the Americans as reluctant leaders of the world community in our own age is a remarkably persistent tradition of cultural ambivalence about the place of the United States in the world. Many prominent powers down the ages have established a world view that does not insist on its own central or imperial position. In recent years Niall Fergusson (2003) has berated Americans for failing to acknowledge their imperial status, which he considers dangerous in an increasingly complex world whose benevolent governance depends on the full acceptance of the leading power’s willingness and capacity to play an appropriately sophisticated and enlightened role. Most Americans ﬁnd it diﬃcult to accept a natural role for themselves as world “imperialists” despite highly familiar domestic rhetoric emphasizing their pre-eminence as leaders of the “free world”. The idea of the United States occupying the apex within a system of world constitutionalism is perceived to threaten its national interest for a variety of reasons: jurisprudential, ethical, cultural, social, and political. Jurisprudential resistance is oﬀered by the North American legal realist movement, whose conception of a healthy constitutional order at the national level places a premium on common core values and strong institutions directly accountable to the people they serve: “democratic constitutionalism”. The kind of constitutionalism associated with legal formalism is suspected of being too inﬂexible, controllable by a judicial elite trained to give the greatest weight to strict adherence to constitutional text. Within the great variance of viewpoints in the ﬁeld of American constitutional law, there are many specialists on the legal realist side of the account who would fear that an excess of constitutionalist ideology in international law would raise the level of textualism within the professional community. There would be little comforting contact with the living interpreters of the people’s will. American jurisprudential resistance to the constitutional model of international law would certainly be reinforced by ethical concerns about the unrepresentative status of international judges, who would be called upon to adjudicate disputes over the interpretation of constitutional text over a much wider range of maters than has been possible within the much more selective framework of international tribunals like the International Court of Justice and its predecessor under the League. Especially in the United States, but also elsewhere, many contemporary ethicists are distrustful of legalists, who are seen to be servants – consciously or unconsciously – of corporate and state power-holders. There is also a cultural issue at the core of the constitutional model of international law. Culturalists unite around the ideal of cultural diversity. The idea that we are all converging on a single “world culture”, in one sense or another, is not a popular

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one, and it does not help to promote the cause of a uni-uncivilizational (Eurocentric) brand of constitutional legalism that is seen to be alien to many non-Western legal traditions. Some existing international tribunals have made an eﬀort to resist erosion of a universalist mode of justice through ﬂexibility of dress and deportment, but, East and West, there is still a general expectation that uniformity has a role in diplomatic and other roles in the law-making arena. The notion of a trend to a single “world culture” is particularly disturbing to social activists, who champion the cause of local community authority in opposition to large-scale corporate and state powers. Are our descendants economically determined to inhabit a borderless world (Ghmae, 1991)? Will the 21st century witness a transformation of American or Chinese power and inﬂuence? How close can we get to imagining the end of that era? Not least, consider the range of political objections to re-constitutionalizing the present power structure. As reenacted in the World Summit for UN Reform, organized in November 2005, the victors over the Axis Powers at the end of the Second World War have shown little motivation to sacriﬁce their permanent seats on the Un Security Council in the interest of a more equitable world order. The alternative of a permanent German seat, or two permanent European Community seats, has failed to capture allegiance in London or Paris. Other beneﬁciaries of the present power structure, such as China, have been no more willing to experiment with a new balance of geographical representation for the beneﬁt of new or emerging powers such as Japan, India or Brazil, or underrepresented groupings elsewhere. Even an embarrassing stock of program and administrative scandals in the ﬁrst few years of the 21st century failed to shock the world’s leaders into committing themselves to a program of reform, as urged on almost all sides, although many of those internal deﬁciencies could apparently be rectiﬁed without immersion in the major issues of world reform or Charter revision. In a recent compilation by Ronald St. J. Macdonald and Douglas M. Johnston (2005), numerous proposals were made, once again, for addressing the challenge of world reform by reference to the constitutionalist model of international law. Europeans’ resentment against the American civic ethos today owes something to their relative lack of knowledge of American cultural and intellectual history. President Washington’s Farewell Address to Congress in 1796 warned his fellow citizens against the dangers of allowing foreign events or ideas to aﬀect the indigenous development of American republican government. Only a few European scholars attempted to match the remarkably perceptive contributions of Alexis de Tocqueville (1805-1859) to the ﬁeld of American political studies. His great classic De la démocratie en Amérique (1835-1840) won him election to the Académie Françoise 1841, as a tribute to his almost unequalled insight into the evolution of democratic society despite a famously aristocratic lineage. Although regretting the loss of some aristocratic virtues, he welcomed the spread of world consciousness and humanity, which he believed would gradually dominate openly democratic societies that permitted an extension of liberty from the few to the many. The revolutionary failures of 1848 across the face of Europe raised the disturbing prospect that American alone – the only New World

Contemporary World Order in Profile

– had escaped the alternative of “democratic despotism”. It was the uniqueness of the American political culture that engaged his life-long attention. In the late years of the 20th century, the world literature has been blanketed with images of America as an “exceptionalist” culture, as a political phenomenon that is incompatible with the embedded principle of state equality. It is a legal ﬁction of the classical era of international law that this principle, which underlies the current system of world order, cannot be jettisoned on the call of political realists without undermining the political foundation of contemporary international law. “Within the United Nations, as well as outside, numerous ways have been found to soften the logical rigor of the equal-state principle, but if the system were further “constitutionalized”, the occasional, crisis-driven need for circumvention would be aggravated, adding to the strains between legal text and political reality” (Johnston, “World Constitutionalism in the Theory of International Law, 2005). Most of the world’s leading “empires” have been endowed with a deeply rooted faith in the uniqueness of their own culture (Fergusson, 2005). For thousands of years the original kingdom of Ch’in (221-207 B.C.) and its Han-speaking successors have been charged with the universalist dignity of the “Middle Kingdom”, not because of any explicit geopolitical strategy of world conquest but because of a phenomenal succession of advancements that might have become the single cultural domain of a “universal civilization” (Huntington, 1997). As we consider the longest lines of continuity in world history, we might conjecture whether American or Chinese exceptionalism will prove to be better or less well suited to world leadership roles in the early 21st century, and to future accommodations with new “post-modern” patterns of collective constitutional democracy within the framework of international bureaucracy. The principal diﬀerence, from an early 21st century perspective, is that it was America, not China, that led the way in developing a cosmopolitan ethos, for at least the Western world, throughout the world community development era of the 20th century. Especially since 1945, no single power or grouping of states came close to emulating the role that the United States played in the spread of cosmopolitanism and in the delivery of international political leadership within and beyond the framework of the United Nations. Europe, the home of modern international law and diplomacy, was in need of spiritual renewal, waiting for its own great reconstructionists. Ironically, perhaps, it was the centrality of US government’s contributions to leadership of the organized world community in the 1940’s that produced the upwelling of antiAmerican bias over so much of the universe. By the end of the 20th century, anti-Americanism – like “globalization”, “capitalism” and even “world culture” – had become the principal target ideology for millions who perceived or imagined themselves as victims of American power or inﬂuence, often at what appeared to be a safe distance from enemy weapons. Conversely, millions of Americans have been embittered by the evidence of what they interpret as ingratitude for the provision of American leadership over the course of a hundred years of universal dangers. For many observers, the world leadership diﬃculty at the turn of the 21st century resides within the cultural phenomenon of US exceptionalism: the conviction of

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many Americans that their historical experience has been unique, creating civic values, ideals and institutions that place their nation above the level of all others. In the mainstream of American culture, “exceptionalism” denotes the belief that the United States “is an extraordinary nation with a special role to play in human history; not only unique but also superior among all nations” (McCrisken, 2003). Although it may be traceable to an early period of American colonial history, American exceptionalism did not have the mythic status of idée ﬁxe until it was famously described by Alexis de Tocqueville in the 1840’s as a core element of American national identity. Arguably, there are two strands of US exceptionalism. First, there is the traditional idea of America as the exemplar nation. In the words of the early American settler, John Winthrop (1588-1649), the nation is “a city upon the hill”, or, in the words of Abraham Lincoln, “an almost chosen nation”. Second, American has been idealized as a missionary nation, called to fulﬁll its “manifest destiny” as “leader of the free world”. Despite numerous disillusionments in the outcome of US foreign policy, the myth persists as a “civil religion”. As the leader of material progress in virtually every area of talent, America the missionary state is not destined to rise and then fall like other nations. Adherents to the exemplary (isolationist) branch of US exceptionalism have always believed that the United States should maintain a distance from other states, content to lead by moral example, without interference in the political aﬀairs of others. This was the philosophy of George Washington, and in a more sophisticated way by Thomas Jeﬀerson. The most inﬂuential proponent of America’s mission to save the world, on the other hand, was Woodrow Wilson, an international law professor at Princeton University – perhaps the principal American vehicle for the dissemination of the ideas of the French and Scottish Enlightenment in the late 18th century. President Bush’s decision to intervene in Afghanistan and Iraq early in the 21st century was a remarkable gamble with Wilson’s sense of destiny. The period since the searing event of 9/11 has become a diﬃcult time in world history to convince most Americans that their unpopular foreign policy should be constrained by global constitutional norms and procedures that could be applied against them by unfriendly foreigners. China, Egypt, classical Greece and other great civilizations were strongly imprinted with a sense of their own unique merit. In Western history, however, the most masterful example of an exceptionalist ideology, was that of ancient Rome. Despite diﬀerences, great and small, between the two most famous traditions of militant exceptionalism, it is the Roman precedent that some of us ﬁnd more disturbing than that of other wayward and omni-competent empires of the past. We can see a justiﬁcation for Roman civic ascendancy in the great successes of the pax Romana. Perhaps some anti-imperialists would make a comparable concession to the pax Britannica of the 19th century. But we see little evidence of a contemporary world order of “relative peace”: of an informal pax Americana. Without a structure of collective constitutional legitimacy to maintain order and justice, what kind of controls can our successors hope to inherit over the forces of anarchy and terror that seem to threaten us in the 21st (Johnston, 2005)?

Contemporary World Order in Profile

In the 1980’s and 1990’s, international lawyers, outside and even inside North America, have kept a check-list of resented failures of the US government to contribute as a leader state to the more or less constant eﬀort within the arena to develop regimes of world order treaties. Some critics with an unduly contemporary view of the world have attached blame to speciﬁc US administrations as recent as that of President Ronald Reagan in 1980. Perhaps curiously, President Reagan started his political career as a pro-Roosevelt Democrat with an internationalist orientation. His later reputation as a semi- isolationist Republican seems to have arisen partly because he repudiated the universalist ideology engendered by the Third UN Conference on the Law of the Sea (UNCLOS III), whose “common heritage” linchpin had kept the famous conference in an ethically approved position throughout most of the developing world. Some scholars, linking the present with the fairly distant American past, have seen similarities between the Bush intervention in Iraq and the precedential Monroe Doctrine of the 1830’s (Rubin, 2005). More contemporary 20th century listings of US moral failures in the ﬁeld of world order often begin with the birth of the international law of human rights, reﬂected in a lack of vigor in pursuit of the 1948 UN Universal Declaration of Human Rights, and successive instruments such as the 1966 International Covenant on Economic, Social and Cultural Rights and the 1966 International Covenant on Civil and Political Rights. On matters of military urgency, most lists include US reluctance to accept only an “ordinary party” role in the 1972 SovietUS Treaty on the Limitation of Anti-Ballistic Missile Systems – an instrument from which President Bush in 2005 announced his decision to withdraw (Turner, 2005). Even more recent disappointments include US dissociation from important “world order treaties” as the 1999 Convention on the Prohibition of the Use, Stockpiling, Protection and Transfer of Anti-Personnel Mines and on their Destruction, and from the 1995 Rome Statute of the International Criminal Court. Discouragement, then, ﬂows in several directions: from the failure to support world order treaties; from the refusal to participate in important universal institutions; from a reluctance to provide leadership to innovative regimes in the form negotiated in the arena; and – for constitutionalists, worst of all – for deliberate rejection of universally prescribed procedures for the collective discharge of legally binding responsibilities. Is the US record as bad as it seems (Murphy, 2004)? Organizing the Consent and Commitment of the World Community Despite the catastrophes of war, famine and economic ruin, the world community did ﬁnally come together as an organized whole early in the 20th century. Virtually despite themselves, the powers of the classical era of statecraft after the First World War could hardly fail to recognize the urgency of a great historic shift. The pride of state sovereignty was no longer suﬃcient in an age now so clearly visible in universal terms. However attractive the potential rewards of successful competition in the market place, or the satisfaction of national or cultural autonomy, the solving of the world community’s most complex problems in the 20th century depended, more than ever, on the cultivation of a cooperative ethic.

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Since the 17th century, most of the advanced nations had acknowledged the twinning of international power and responsibility as the pre-condition of any world society that could be said to function on the basis of the beneﬁts of transnational cooperation. Despite the scourge of two world wars, it had become obvious, to victors and vanquished alike, that wars of conquest were self-defeating. The complexities of modern international society could be addressed only by harnessing the peaceful energies of existing international institutions. However modest the early eﬀorts of international bureaucracy, it was only there, in the foundations of the international civil service, that intergovernmental competence could be developed and applied for the beneﬁt of all. By the end of the ﬁghting, it was widely understood that the best hope for humanity was access to a permanent source of sophistication, embedded in an increasingly capable network of international agencies and networks. The Modern Treaty System. Down to the end of the classical era of international law – say, down to 1919 – it was widely understood that the international legal system consisted of sovereign states. It was a collateral system. The only “subjects” – those capable of giving or withholding consent, of bearing rights and duties – were those entities recognized by one another as autonomous actors. In retrospect, however, most of the years after the creation of the League of Nations witnessed an increasingly signiﬁcant struggle between those most anxious to preserve the rights and prerogatives of state autonomy, on the one hand, and those beginning to sense the general or particular advantage of moving carefully to a new stage of world order characterized by a degree of erosion of state autonomy through the development of universal institutions. We can barely guess at the origins of treaty-making. It may have surfaced as early as the 3rd millennium B.C., not long after the ﬁrst keeping of oﬃcial records. It can be imagined that early sophisticated nations and tribes discovered the mutual beneﬁt of entering into occasional transboundary agreements with neighboring peoples over a variety of resource and other conﬂicts. By the mid-17th century, several private collections of treaties had been compiled by scholars such as Jean Jacque Chiﬀet, Jean Dumont, Friedrich August Wildhelm Wenck, and Georg Fredrich Von Martens (Johnston, 1997). These agreements provided empirical heft to evidence of a long-established heritage of legal obligations exchanged between sovereign and nearly sovereign entities that were deemed to make up the community of states. Previously, the discipline had always suﬀered the embarrassment of a “peculiarly ﬁctive sort of existence” (Bilder, 1988). By the ﬁrst two decades of the 19th century, these compilations had given way to oﬃcial treaty collections. From that time forward the growing depth of treaty instruments played an important role in transforming the scope and pattern of inter-state transactions. As the number of oﬃcially recorded international agreements escalated throughout the 20th century, it became increasingly diﬃcult to separate the ancient story of the law of nations from the rapidly lengthening history of treaty-making (Toscano, 1966). It was a relationship that seemed, of course, particularly appropriate to those positivists whose conception of a sovereign subject of international law was virtually

Contemporary World Order in Profile

inseparable from that of an actor whose legal status consisted, above all, of the prerogative to grant or withhold consent. 20th century compilers of treaty calendars and texts have found it very nearly impossible to escape the problem of arbitrary selection. Indeed it might be questioned how useful it would be in applying a strict deﬁnition of what constitutes a “legally binding agreement”, and “instrument of treaty character”, or any other designation, except for a strictly limited, technical purpose. Even in the present age of computerized searches, it is not yet clear that any ﬁnal cure for incompleteness is in sight. Treaty registration was originally insisted upon at the creation of the League of Nations by President Wilson, who was strongly opposed to the European tradition of secret diplomacy. Although the League had to abandon the original principle that registration was necessary before a treaty could have binding eﬀect, treaty registration is still mandatory under Article 102(1) of the UN Charter: “Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it”. Article 102 (2) provides: “No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations”. However, the International Court of Justice has shown no disposition to apply this sanction (Higgins, 1963). Most states take a restrictive view of their duty to register their agreement. Since the registration requirement is virtually unenforceable, many thousands bilateral agreements have remained unregistered. Moreover, the UN Treaty Series, which succeeded the League of Nations Treaty Series, excludes many categories of multilateral instruments, even those of constitutive signiﬁcance. The treaty output of the European Union, the Council of Europe, and other agencies is excluded, since it is published elsewhere. The total number of treaties or treaty-like instruments negotiated during the 20th century has been overwhelming. The only way to maintain any degree of control over the thousands of international agreements in existence is through massive indexes that include every type of instrument, formal and informal, from routine (interdepartmental or intergovernmental) memoranda of understanding (MOUs) to the most fundamental of world order treaties and treaty-based regimes. In the later years of the 20th century, the vast treaty-making phenomenon of the world community has not only encompassed virtually every sector of the global wide regional bureaucracies, but also attracted the attention – often the highly critical attention – of the transnational ethical community. In short, the process of making and maintaining the treaties of the world community is no longer the monopoly of the state system (Johnston, 1997). For a short period, in the late 1960’s and early 1970’s, the People’s Republic of China and other socialist states which had been victims of non-recognition situations resorted to a sort of “people’s diplomacy” which resulted in the use of some unusual ambassadors, whose spin skills had previously been conﬁned to the table tennis table (Johnston, 1971). Soon, however, the orthodox view of envoys as a professional elite – indeed as a highly privileged professional class – reasserted itself. Despite frequent eﬀorts to

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inject glamour into the profession, 20th century diplomacy became a more-or-less routine process that only rarely created historic excitements at the personal, summit, conference and traditional (“ministerial”) levels of encounters in the arena. By the second half of the 20th century, information-gathering in the diplomatic community had acquired a primacy of purpose that it now seems unlikely to relinquish even with the appearance of new technologies. The original diplomatic function, representation, has remained highly visible, reﬂecting the ancient diplomatic obsession with formal ceremony and religious and other rites, but as information becomes the principal avenue to power, wealth and general well-being, it seems unlikely that the clerical role of envoys will ever become downgraded. More probably, as political power and strategy become more inseparable in the “interlinked economy” (Ohmae, 1991), ambassadors can be expected to become more specialized as managers of transactions. There seems no limit to the variety of oﬃcial transactions, both formal and informal, that may be eﬀected transnationally. Such a trend seems appropriate, given the “transactional” form and terminology of classical international law before its modern conversion into a highly organized mode of interaction. As diplomatic instruments become an increasingly common feature of world diplomacy, we may be likely to ﬁnd a constant need for staﬀs to specialize in the maintenance of more and more complex international agreements. New mixes of skills and capacities – cross-cutting such sectors as trade, science, environment, transportation and human rights – are likely to become a normal requirement for high-level bureaucratic treatment of the world’s most complex problems and most fundamental issues. By the end of the 20th century, it was already evident that only a small proportion of national delegations in contemporary world diplomacy possessed the range of educational abilities to handle complexity at the highest professional level, raising questions about the future relationship between delegations and secretariats. Already so much sophistication is needed to maintain the most complex treaties and treaty regimes, that innovative thought must be given to the training and education for tomorrow’s bureaucrats, and especially to those who work most closely, in delegations and secretariats, with the senior foreign service oﬃcers who discharge the lead roles in the supervision of international relations. Of the 30,000 or more treaty commitments that may have been negotiated from the pre-historic birth of diplomacy down to the creation of the League of Nations in 1919 (Johnston, 1998), almost all were bilateral. Treaty-making was conceived as a special, rather formalized, contractual ceremony, based to an astonishing extent on the model designed for the regulation of private transactions, adapted for a growing variety of inter-state purposes. Aristocratic considerations of personal honor, which attributed signiﬁcance to the keeping of one’s word, had to compete with the princely temptation to manipulate neighbors and rivals to one’s advantage. Only in the last century of the pre-classical era of international law do we see the emergence of an inﬂuential body of writings and reports that insist on the “sanctity of treaties”. Arguably the grundnorm status ascribed to that principle (pacta sunt servanda) reﬂects the combined eﬀort of organized religions, though some have gone further than others in detecting the speciﬁc inﬂuence of the Jesuit order of the Catholic Church (Janis, 1991).

Contemporary World Order in Profile

The simplest way of conveying the remarkable range of treaties that became the common transactional business of states in the 20th century is through functional analysis made possible by taxonomies, but admittedly the science of taxonomy in the world of treaty data is closer to an art than a science. For jurists chieﬂy inﬂuenced by the “litigational” taxonomy, the fundamental challenge is to reconcile the black-and-white distinctions of traditional juridical reasoning and doctrine with the practical “operational (or bureaucratic) need to experiment in various shades of gray, reﬂecting the variety of human experience. The centrality of legal distinctions in the litigational taxonomy underlines its limitations as a conceptual framework for other (non-adjudicative) tasks associated with the making and maintenance of instruments. For the practitioner of international law in the diplomatic or bureaucratic arena, special care has to be taken in accounting for sectors of treaty-making that create wholly diﬀerent expectations. Treaty arrangements or settlements have to be diﬀerentiated at the beginning between bilateral instruments of at least four functionally distinct kinds: (i) distributive instruments (e.g. economic, social, scientiﬁc, technical, resources, environmental cultural, military, developmental, and hybrid); (ii) administrative agreements (aviation, navigation, other transportation, telecommunications, other communications, diplomatic and consular services, banking services, customs and immigration, development, and hybrid); (iii) resolutive (e.g. dispute settlement, corporation, extradition, transfer of oﬀenders, reciprocal enforcement, judicial awards, privileges and immunities, status of foreign facilities, status of international agency, boundary delimitation, taxation, nationality, customs and immigration, standards, intellectual property); and (iv) demonstrative (e.g. peace, friendship, alliance, establishment of diplomatic relations). Similarly, numerous adjectives can be used to characterize the multilateral instruments of the 20th century: normative (norm-setting), demonstrative (promotional), developmental (organic), consultative, organizational, protective, managerial, regulatory, and planning. When bilateral or multilateral treaties are set out in functional categories such as these, much can be held against the highly formalistic 1969 Vienna Convention on the Law of Treaties, which adopted a comprehensive, law-making framework based on the artiﬁcial analogy between treaties and contracts. Sometimes, for one reason or another, an instrument loses all, or at least some, of its original signiﬁcance, even though it remains in force and continues to have legal eﬀect in a technical sense. Unfortunately, the views of the parties on the functionality of the agreement may not always coincide. One party may believe the instrument has become dysfunctional and may not wish to negotiate a replacement, while the other insists on sticking to the original agreement. Judgments as to the dysfunctionabilty of an instrument on the basis of legal or political opinion are open to challenge and likely to promote resentment on the part of those who do not share the opinion oﬀered. By these controversial tests, many treaties that are listed oﬃcially as in force may be viewed internally, within the appropriate sector of bureaucracy, as dysfunctional. It is also possible to view an entire treaty system as virtually dysfunctional. For example, the international aviation industry is supposed to be regulated under a legal system that has been described as a “veritable

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jungle of confusing, sometime contradictory, regional and bilateral agreements”. A comparably complex, if not wholly dysfunctional, treaty system exists in other ﬁelds such as extradition, which like aviation is governed chieﬂy by a network of thousands of bilateral agreements. In 1966, the Red Guard was running wild, crying down the enemies of Chairman Mao and creating a general havoc intended to extirpate all anti-proletarian enemies inside the People’s Republic of China (PRC). Forward-looking agencies of the US bureaucracy engaged a small team of specialists at Harvard (which included this writer) to study the treaty-making record of the PRC and, more generally, of its performance as a sovereign state against the obligations and expectations generated by the international legal system. One day, in the near but uncertain future, the American super power would have reason – it was believed – to sit down with the Chinese to deal with some kind of dispute, through treaty-making or otherwise. A kind of orthodoxy was discovered. Despite a number of peculiarities that could be attributed to the separate path that the Chinese Communist Party (CCP) was following in its infamous polemic with the Communist Party of the Soviet Union (CPSU) in the 1950’s and early 1960’s, the steady hand of Chou En-lai )(Hsu, 1968) at the Foreign Ministry had maintained a high degree of government consistency in its treaty relations with the rest of the world. In the dual party-state system of the PRC in the 1960’s, treaty-making was never allowed to become a victim of party rhetoric. Only the most minimal treaty commitments had been permitted between the PRC and the capitalist states. For example, consular connections had been approved with those exhibiting a relatively dispassionate position on matters of the most critical importance to the government in Beijing: relations with Taiwan, alignment with the United States on strategic concerns such as the presence of the US Navy in and around the Strait of Taiwan, and US overﬂight over Chinese airspace. Weight was given to Western positions on questions related to the admissibility of the PRC as the true representative of the Chinese people in the United Nations, at a time when the capitalist states were still being asked to choose between “one China” and “two China” policies. The highest degree of conformity was found in the PRC’s formal diplomacy with what was still a relatively homogeneous pattern of treaty-making among the Sovietled coalition of Warsaw Pact states and other genuinely committed Marxist-Leninist states. Among these ideologically compatible partners, a number of topics dominated in what was assumed likely to grow into a regular resort-to treaty pattern, led, like most treaty lists, by “distributive” agreements in economic, commercial, scientiﬁc and technical, and cultural cooperation. The contribution of Chou En-lai to Chinese diplomacy and treaty-making was most marked in Beijing’s relationship with the developing non-Western states that had not yet chosen to commit themselves to either side of the communist-capitalist line. Chou personally played an astute role in shaping the non-alignment movement, which involved other signiﬁcant leaders such as Nehru (India), Sukarno (Indonesia), and Tito (Yugoslavia). Some of the movement’s initiatives seemed particularly provocative to capitalist foreign ministries responsible for relations with Africa, but ideologues in the CCP rarely showed any special sensitivity to the pragmatic, operational side of Chinese foreign policy. Some eﬀort was

Contemporary World Order in Profile

made to extract propaganda value from construction of PRC projects such as the “Tanzam” railway between Tanzania and Zambia, but militancy at home in the 1960’s illustrated the diﬃculty of navigating tricky shoals with shifting cargo. Needless to say, it was the “demonstrative” treaties of peace, friendship and alliance with Marxist-Leninist states that proved most vulnerable to the strain of inter-party rhetoric: instruments designed to serve symbolic or ceremonial purposes on mutually congratulary occasions. When a bilateral treaty relationship is subjected to severe and lasting stress, it is almost inevitably the “distributive” instruments that tend to become dysfunctional, when the parties become unable to deliver as and when promised. Less predictably, the most durable of China’s treaty instruments between 1949 and 1967 seem to have been those that fall into the “administrative” category. Years of conﬂict, physical as well as verbal, in those turbulent years, failed to terminate most of the arrangements in such inter-state service sectors as aviation, navigation, railways, telecommunications, quarantine, and consular relations generally. Admittedly, that was the “start-up” period for what was essentially a new state, with everything to gain by preserving its most basic, routine interactions with the rest of the world. With so many thousands of years of bureaucratic sophistication to draw upon, it might have been foreseen that the purposes of public administration would be given a special priority. A great deal of confusion arises from the nomenclature (”appellation”) applied to the instruments chosen by negotiators of the 20th century. By far the most common designation – in the English language – is the term “international agreement”, followed in second position by the earlier term “treaty”. Other common terms are “convention” and “protocol”. The former is often reserved for a general, wide-ranging multilateral, law-making instrument, such as the Third UN Convention on the Law of the Sea or the Vienna Convention on the Law of Treaties. Towards the end of the 20th century, the previously humble term “protocol”, connoting a legally dependent derivative status, acquired an inﬂated signiﬁcance in the eye of the general public, due apparently in the central ecological role attributed to the Kyoto Protocol. Informal agreements of relatively minor or short-term signiﬁcance are usually given inconspicuous appellations like “exchange of letters” or “exchange of notes”, but it was long established, even before the 20th century, that the choice of nomenclature is determined by diplomatic means rather than legal distinctions. On the other hand, while the name given to the instrument does not in itself determine the instrument’s legal status, it is likely to reﬂect the degree of formality invested in it and, in combination with other formal and substantive criteria, may also reﬂect the parties” expectations regarding the level and intensity of commitments exchanged. The term “covenant”, for example, was introduced into treaty-making terminology to convey the overarching nature of the commitments contained (Johnston, 1998). According to an Anglican surmise, it may owe its existence to “the Presbyterian origin of President Woodrow Wilson” (McNair, 1931). Long before the end of the 1990’s, the appellationists had yielded to the temptation to use the term “covenant” – originally applied to the most solemn undertakings entered into with the Divine Being, as revealed in the Scriptures – to devote the status of a foundational document resistant to change.

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The Rise of International Organizations. Most of the early and pre-modern proposals for a world organization were intended to create a decision-making body. Normally, a multilateral treaty involving most or all of the great powers was considered essential in the “law of nations” era to show that the community-building initiative had the will or consent of the dominant states. The power-holders would have to form the political core of any such arrangement if it was to have the required degree of “authority” or “legitimacy”. The idea that collective authority depended on the size or representativeness of the organization, rather than on its inclusion of the most powerful, did compete for attention, but through the late 19th century it had to yield to the logic of the political realists. Most historians like to credit the 1748 Peace of Westphalia and Treaty of Utrecht of 1714 as “landmarks” because of their role in facilitating the break-up of what was left over in the fragile form of the Holy Roman Empire. However, it was the 19th century, studded with land-marks, that paved the way for building a system much closer to the “universal”, model of world government that we have come to know in the 20th. The movement away from normal ad hoc diplomacy, essentially a bilateral process, was the result of a deliberate strategic choice by the powers of the day. Even before most states had begun to develop a modern-style bureaucracy for normal civic purposes, Europe recognized that the time had arrived for a more continuous, more professional method of tackling the problem of preserving world peace. Ambitions along these lines swelled in the political vacuum after the Napoleonic War, but although the powers proved incapable of a genuine transformation in their attitude to world order, numerous “congresses” between 1856 and 1906 did have the eﬀect of creating an international elite with the skills, experience, and integrity to implement at least a “Concert of Great Powers”. The involvement of professionals in these exercises tended to puncture the silliest, bubbliest, personal pretensions of sovereign dignity. As we have seen, it was the two International Peace Conferences held at The Hague in 1899 and 1907 that ﬁrst took aim at a “world agenda” that could be compared with more modern initiatives to deal with world community problems. But it was also at that time that the gap between the tower and the arena revealed itself. The London Times did not pull back: the conference of 1907 was denounced as a “sham” that had “brought forth a progeny of shams, because it was founded on a sham” (Claude, 1956). Be that as it may, the second sham was attended by the representatives of forty-four states, “gathered together to discuss interests which they have in common and which contemplate the good of all mankind”. Since the forty-six included most of the independent Latin American states, it was a genuinely international sham. Even although Hague II was still limited mostly to the concerns of a two-continent universe, it was large enough to introduce smaller pretensions that were no less preposterous and time-wasting than its self-assertive, self-important predecessors. The doctrine of sovereign equality was acknowledged uncomfortably as a basic principle of international law, provided it was not taken too seriously at important events. At times, according to Claude, “angry mutterings were heard that the small states were incapable of holding the liquor of equal diplomatic status”. Yet confrontations between large and small states – or groups – would become a regular feature of the new era of conference diplomacy.

Contemporary World Order in Profile

Although the Hague system proved abortive, it marked a beginning as much as an end. Since then it has been generally accepted that Europe and Latin America belong to an even larger community of nations; and the small states, however pesky an irritant, were guaranteed the right of participation in the management of the new international bureaucratic system. Conference diplomacy procedures would become institutionalized, as the role for personal diplomacy diminished. The Hague legacy continued in the strongly held belief that the making and preserving of international order was a challenge that could be met by reason, preferably by diplomats with a common background in international law, which was seen by many to be the embodiment of reason. Ideally, some at least of the disorders of the day might even be referred to an important tribunal, in the event of total diplomatic breakdown. As noted earlier, the Hague system was preceded by the creation of the ﬁrst public international unions: the various river commissions, the International Telegraphic Union (1865), and the Universal Postal Union (1874). Before the end of the 19th century similar developments would occur in such diverse sectors as agriculture, copyright and patent, health, narcotic drugs, prison conditions, and weights and measures. It might be more accurate to attribute these accomplishments to practical men of aﬀairs, rather to idealists. To a large extent, they reﬂected the growing inﬂuence of national and international aﬀairs in the modern world. The “world agenda” was becoming an indicator of the latest ideas of civic benevolence at the national level of the most advanced states. As indeed it still is. The organized world community was becoming something like a world state, a repository of “progressive” ideas, an arena with its own dynamic and justiﬁcation. The period of the League of Nations witnessed a dramatic increase in the number and diversity of international institutions. More than ever, the modern treaty system took on the appearance of a universal phenomenon based on the treaty-making capacity of the sovereign states: an increasingly visible evidence of the consensual/collateral system of nation-states. For many jurists, the volume of modern treaty-making justiﬁed a legal system founded upon the autonomy of each sovereign entity. As noted earlier, the need to cater to an expanding community, consisting largely but not exclusively of the 35-40 members of the League, accelerated the rise of treaties in general. To capture the main trends, it might be suﬃcient to track the development of multilateral treaty-making. Though not nearly as numerous as bilateral agreements, which continued to proliferate to unprecedented levels, the growth of multilaterals (instruments with three or more parties) is also spectacular. Indeed, the eﬀect of the growth of the world cooperative ethos in the 20th century is probably even more evident in the clustering of multilateral agreements. According to the deﬁnitive calendar compiled by Christian Wiktor (1998), the total resort to multilateral instruments rose from 926 between 1919 and 1938 to 1622 between 1976 and 1995. This phenomenon was of great importance to the development of the international legal system, especially after the creation of the United Nations in 1945 and its steady progress to universal membership in the mid-1970’s. It enabled new topics to become attached to the treaty-making agenda of groups of like-minded states – even of the world community as a whole – and provided regular opportunities to deal with a widening variety of common concerns.

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One is struck by the remarkable variety of subject-matter brought into the multilateral treaty-making process in both of these 20-year periods. The ﬁrst, covering the initial two decades of the League of Nations, was a period of peace, albeit of a fragile sort. The ﬁgure of 926 such instruments might have seemed suﬃcient proof that an organized world community was indeed emergent, building along cooperative lines despite the clamorous headlines around the world. Admittedly, many of these instruments were unlikely to stir the passions, though often of considerable social and humanitarian signiﬁcance, such as the 63 “conventions” adopted by the International Labour Organization (ILO). Wiktor’s listing for 1919-1927 includes the “constitutive” instruments of many other international organizations devoted less to geopolitics like the Versailles Treaty of Peace with Germany (1919) than to the economic and social concerns of peoples in various regions: not only the Covenant of the League of Nations (1919), and the Constitution of the ILO, but also such instruments as the Agreement for the Creation of a Central Patent Bureau, the Statute of the Permanent Court of International Justice, the Covenant of the Union of Central America, Statutes of the International Hydrographic Bureau, a convention which continued the European Commission of the Danube and the International Commission of the Danube, the Principal Convention of the Pan American Postal Union, an instrument concerning the International Oﬃce of Weight and Measures, an agreement for the creation of an International Association for the Protection of Children, a Convention for the Establishment of an International Central American Tribunal, a Convention for the Establishment of Permanent Central American Commissions, Resolutions concerning the organization of the Pan American Union, the Agreement for Creation of an International Oﬃce for dealing with Contagious Diseases of Animals, a Convention creating the Inter-American Union of Electrical Communications, an Agreement for the creation of an International Wine Oﬃce, a Union Convention for the Protection of Industrial Property, an agreement establishing a Baltic Geodetic Commission, an agreement concerning the creation of an International Oﬃce for Information regarding Locusts, Provisional Agreement for the rendition of the Mixed Court in Shanghai, Principal Convention of the Pan-American Union, Convention establishing an International Relief Union, and an international convention for the creation of an International Oﬃce of Chemistry. What this picture reﬂects is not so much the emergence of a new political order, as the emergence of modern world society, cultivated within a rapidly expanding framework of highly active and sophisticated international institutions. The period between 1976 and 1995 was the fourth decade of the United Nations. The organization had long since attained the goal of near-universal membership. By 1976 the diplomatic community had expanded to something like its present level, but the disparity in the size and capability of foreign ministries and national delegations continued to widen. Within the framework of the UN and otherwise, innumerable eﬀorts were made to assist the smaller and less developed countries to improve their capacity in the various aspects of treaty-making. Since these nations were often wary of oﬀers of assistance from powers in a position to take advantage of a mentor’s role in later treaty-making situations, the mentors were generally selected with care. Usually the chief role in the design, organization and conduct of these activities has

Contemporary World Order in Profile

fallen to independent academics, experts and consultants from outside government service. These tasks are diﬃcult, often technically demanding, and not infrequently sensitive from a political or cultural perspective. On the whole, these collaborative eﬀorts – often linking the governmental, intergovernmental, academic, NGO and commercial domains – have been a very useful contribution to the task of leveling out playing ﬁelds. The contribution of international organizations to the development of contemporary world order is quite remarkable. Even within the limited context of multilateral treaty-making, the Wiktor listing for the 1976-1995 period reveals the transformative impact of the international bureaucracy on virtually all sectors of world society. The maintenance, if not the initiation, of these treaty settlements and arrangements is shown to be the work largely, if not mostly, of hundreds of international agencies: for example, the UNEP Regional Seas Programme, the OPEC Special Fund for International Development, ASEAN, the International Atomic Energy Agency, the European Community, the Council of Europe, the Group of Latin American and Caribbean Sugar Exporting Countries, the International Wheat Council, the Congress of the Postal Union of the Americas and Spain, the Asia-Paciﬁc Telecommunity, the Association of Iron Ore Exporting Countries, the World Health Organization, the InterAmerican Development Bank, the South Paciﬁc Commission, the International Fund for Agricultural Development, the International Sugar Council, the Caribbean Food Corporation, the International Maritime Satellite Organization (INMARSAT), the International Organization of Space Communications (“Intersputnik”), the Hague Conference on Private International Law, UNESCO, GATT, the Andean Reserve Fund, the International Natural Rubber Council, the International Commission for the Protection of the Rhine Against Pollution, the European Commission of the Danube, the World Intellectual Property Organization, and numerous others. Most of these multilateral agreements, constantly increasing, do, of course, generate controversies during and after negotiation. It is the everyday work of hundreds of thousands of international oﬃcials around the world to maintain the operations of these institutions as smoothly as possible. Often the arrangements in practice are not as impressive as they look. Funds and staﬀs are almost always in short supply. But most of these instruments involve technical rather than political personnel. Admittedly, the international system is still dominated by national government delegations through control of the voting or consensus decision-making processes. By and large, however, these agencies, which deal with most sectors of international society, generally carry out their responsibilities in a harmonious spirit. Because they are everywhere, these agencies tend to be taken for granted. Given the lack of regular media attention, the general public is virtually oblivious to the central roles that international technical organizations perform in the development of world order, in its largest sense. Because of the phenomenal functional diversity of these agencies and of the negotiated instruments concluded under their auspices, it has become diﬃcult to generalize about the legal eﬀect of decisions by international organizations. Reams of volumes diﬀerentiate the kind, degree or intensity of commitment that can be generated by such decisions, inﬂuenced by the nature of the agency, its responsibility to the

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world community, and the speciﬁc mandate entrusted to it. Most text book writers of our generation are prepared to accept international organizations as subjects of international law: that is, as having at least some degree of international legal personality, like companies and individuals in certain limited circumstances. Although pioneer international organizations can be traced from 1815 or even earlier, the trend to “subjecthood” really originates in, or immediately after, the First World War, and the idea of a juridical analogy between a sovereign state and an inter-state organization has continued to encounter resistance even down to recent times (Akehurst, 1982). Cautious jurists ask not whether an organization has legal personality in the abstract, but what legal rights, duties, and privileges it is capable of exercising. Its legal capacity is, in short, deemed to be functionally limited. The capacity of the United Nations may be the least limited of all non-state entities. For example, under Article 104 of the UN Charter, the organization “shall enjoy in the territory of each of its members such legal capacity as may be necessary for the exercise of its functions and the fulﬁllment of its purposes”. Given the wide range of purposes and principles set out in Article 1 and 2, the UN has a broad legal mandate, as re-aﬃrmed by the International Court of Justice, especially since it was held that the legal powers of an organization do not have to be expressly incorporated in its constitutive treaty, but can be implied extensively so that the organization is able to perform its stated functions without constraint (Williams and de Mestral, 1987). Notwithstanding this functionalist line of reasoning, the international law community has held to the formalist – and artiﬁcial – view that even the UN fails to match the legal status of any one of its sovereign members, however close its own Charter might come to some of the attributes of a constitutional entity (Broms, 1983). So deeply rooted is the notion that only sovereign states could be full, functionally unlimited, subjects of international law that the original rule governing decision-making by the League of Nations was the unanimity rule. Any one member of the League, whatever its status, could block the decision process by using its solitary veto. More important, however, is the legal eﬀect of all binding decisions made by the United Nations. Regardless of how it voted – with the majority, with the minority, or in abstention – each UN member state is bound by the commitment accepted by the majority. To the extent that legal analogy is showing its hand, it is the analogy with legislation, not with contract. Indeed, even members without a vote are bound: for example, by an UN-wide commitment accepted by the Security Council, on matters with which only Council members are vested with legal authority. The Arrival of International Regimes. One of the most creative innovations of the diplomatic community in the 20th century was its invention of the international regime. It assumed diﬀerent forms, eventually putting a strain on the legal art of deﬁnition. The terminology, and most of the theory, came from political scientists rather than lawyers, which may not be surprising since its purpose is to provide operational ﬂexibility not logical consistency. In the diplomatic world of the late 1950’s most lawyers were still transﬁxed by the tradition of strict consistency with legal rules. By then, the UN General Assembly was set on its course of becoming a truly universal body, and beginning to plan fundamental treaties that, unlike most multilateral instru-

Contemporary World Order in Profile

ments of the past, would be likely to attract a larger proportion of the international community. The root problem in the building of world order in the era of the United Nations has been how to induce nations – not least those only recently acknowledged to have the status of a sovereign state – to participate in the development of collective commitments for the general welfare of world society. For most of the new states, the prospect of being saddled with strict treaty obligations had limited appeal. The struggle that most of them had to endure through the dark days of colonialism had made them sensitive to the impact that Western law had had – and continued to have – on their freedom and aspirations for autonomy. It was sobering enough to ﬁnd themselves bound by the Western-crafted, “rule-of-law”, “law of nations”, framework of state responsibilities, but to be further limited by treaty obligations of their own making at the negotiating table was, for many, an even more disturbing prospect. Many of the non-Western states, now fully entitled members of the United Nations, found no equivalent heritage of transnational order and legal development within their own indigenous past. Since sovereign states could not be required to participate in the formal treatymaking process and could walk away from negotiations at any time with legal impunity, it became accepted that the next-best strategy might be to experiment with international regulatory regimes that would not consist, or consist entirely, of strictly binding obligations. Already, eﬀorts had been made to induce reluctant states to enter into basic treaties that were written in general, rather than speciﬁc legal language: in the terminology of commitment rather than obligation. But the taking on of even commitments can be politically or culturally problematic, even if care has been taken to shield the parties from the risk of international adjudication. The normative force of certain regimes weakened further, based less on commitment than on expectation. The modern international regime springs from many roots. One characteristic is the creation of a secretariat-type mechanism that enables the parties to draw upon a constant supply of updated information collected by the “managers” of the regime. The institutional continuity designed into it provides a monitoring service that helps the delegations to adapt to changes as they occur. These characteristics seem to have had their origin in the regulatory multilateral treaty arrangements put together in the last third of the 19th century, when the merit of a global approach to the management of telegraphy, radio and public health began to seem rather evident. These early arrangements were important, both as diplomatic and legal developments. Very few governments possessed more than a handful of experts who could deal with highly technical topics such as those. What emerged in the 20th century was a pattern of mutual dependence between technically trained bureaucrats employed mostly by the international secretariat and a few similarly trained delegates on the government side – who provided the leadership – and the majority of delegates, who mostly lacked any special credentials but still commanded the majority of votes. The overriding question is, of course, whether normatively weakened “regimes” can be expected to generate a satisfactory level of compliance on the part of the parties. Can such arrangements be a substitute for more formal undertakings? Can they

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be compared with formal treaty settlements in terms of their eﬀectiveness? Even to address that question even-handedly has not always been easy for lawyers trained in the strict rule-compliance school of legal theory. But since the 1990’s many international lawyers have been persuaded to join the political scientists in the quest for empirical evidence (Shelton, 2000, Miles, 2002). It seems unnecessary to search for origins of this trend, to “non-binding” regimes, earlier than the middle of the 20th century. But one important example was the Organization for Security and Cooperation in Europe (OSCE), which evolved through the Helsinki Final Act (1975) in the absence of a formal peace treaty at the end of World War Two. It was this non-treaty mechanism that the Soviet Union tried to use to legitimize the post-war division of Europe. Although most of the West remained skeptical, the Federal Republic of Germany and several of its eastern neighbors accepted this basis for negotiating bilateral treaties as “substitute peace treaties” (Schlager, 2000). In a totally unrelated context, the regulation of whaling, eﬀorts had been made since the late 19th century to halt the outrageous overexploitation of whales in general, and in particular the largest and most easily targeted of species, such as the magniﬁcent blue whale. That failure was one of the most chilling events in the history of wildlife protection. Throughout most of the 20th century, eﬀorts to establish an eﬀective international regulatory regime continued, but commercial greed prevailed on a wanton scale, despite the joint protective strategy implemented by scientists, administrators and lawyers associated with the International Whaling Commission (IWC) (Johnston, 1965). The IWC qualiﬁes as a regime because it has its own Secretariat and an independent scientiﬁc staﬀ. It is an early version of attempts at a scientiﬁc approach to natural resource “management”. Despite a remarkable succession of diplomatic initiatives, including some dark and dubious, the old International Convention for the Regulation of Whaling, concluded as long ago as 1946, remains a fragile hope for the future, bitterly contested by two hostile camps. The problem is no longer as “malign” as it used to be: worldwide demand for whale products has greatly declined, and conservation methods have improved. It remains to be seen whether there is suﬃcient goodwill among the parties to save Leviathan, and its reputation as the worst example of an international regulatory regime (Andreson, 2002). By contrast, the International Standards Organization (ISO) is a much happier example of cooperation between state agencies and private entities. As early as 1946 the ISO was funded to promote voluntary international standards with a view to facilitating global trade. Because of the mix of public and private interests, the ISO is designated as a hybrid organization. Its method of operation is extremely variable. Within the overall framework, each standard body chooses its own composition. In some countries, government oﬃcials predominate to protect the national interest, especially where the economy is subject to a high degree of public regulation. In other countries, the standards institute is essentially a private/commercial organization, usually represented by industry consultants or corporate appointees. Given the variety of interests involved, there is no shortage of controversies over the legal or operational eﬀects of the “rules” and “procedures” adopted by the numerous ISO

Contemporary World Order in Profile

committees. When the complicated regime works, it serves to reduce disparities between the rules of diﬀerent national legal systems. Sometimes it contributes to the harmonization of national international rules. Even when conﬂicts erupt, ISO is a useful means of bringing together the “stakeholders” within most sectors of the international industrial system (Roht-Arriaza, 2000). One of the most famous, and more successful, examples of an international regime is the Antarctic regime that has developed since the original Antarctic Treaty of 1959. In addition to the original component, at least ﬁve more arrangements have been added on: (i) the 1972 Convention on the Conservation of Antarctic Seals; (ii) the 1980 Convention on the Conservation of Antarctic Living Marine Resources; (iii) the Agreed Measures for the Conservation of Antarctic Flora and Fauna; (iv) the still abortive, Antarctic minerals regime; and (v) the Scientiﬁc Committee on Antarctic Research (SCAR) (Joyner and Chopra, 1988). The Antarctic regime owes much of its fame to the multi-functional nature of the original Treaty. Almost ﬁfty years later, it stands, enhanced, as a fundamental treaty addressed to the interests of the entire world community. Its principal goals can be gathered from the preamble: (i) to guarantee that the continent shall be used exclusively for peaceful purposes, not as “the scene or object of international discord; and (ii) to provide a permanent site or scientiﬁc research in accordance with “the interests of science and the progress for all mankind”. Over the years, its purposes have expanded by general consensus. Article I is interpreted as prohibiting military activities of any kind, and Article V forbids nuclear explosions and the disposal of radioactive waste material. Under Article IV national jurisdictional claims to any part of Antarctic are “frozen”. Activities under the Treaty cannot be used to strengthen any claims. With a view to discouraging such claims and despite the language of Article IV, many commentators argue that the Treaty has conferred upon Antarctica the status of the “common heritage of mankind”. Cooperation in Articles II and III provides the rationale for a system of mostly national research stations with a commitment to cooperate with one another, so as to ensure beneﬁts for all in the best tradition of the scientiﬁc community. Much of the common interest focuses on the continent’s central role in climate studies and, of course, on the preservation and investigation of its unique environment. At the time of writing, it appears that the Antarctic mineral regime has collapsed. Within the system as a whole, which is a combination of treaty-based provisions and non-binding norms (“recommended measures”), the key question is whether the latter impose legal obligations, in the strict sense, or are merely hortatory assertions (Joyner, 2000). It has been suggested that the recommendations assume a “quasilegislative” character. Numerous variants of international regimes appeared in the fourth quarter of the 20th century. One pioneer much copied around the world is the “Barcelona” approach, which consists of the original “framework” convention and several “protocols” which are usually negotiated later. In 1976 pressure built up to use regimes as protection against pollution in the “regional seas” designated by the United Nations Environment Programme (UNEP). The ﬁrst experiment, the Barcelona Convention of that year, was designed for the Mediterranean. Precious in beaches and so many

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other ways, this popular sea was believed to be severely polluted, mainly because of the concentration of large oil tankers in and around Greece, one of the leading ﬂag states of the world ﬂeet. The Mediterranean region is unusually asymmetrical: with wealthy, industrial, scientiﬁcally capable states on the north side – with access to European funds – and mostly underdeveloped, rural, desert-backed countries on the south side. Moreover, the extreme east (the Levant) consists of hostile states – Israel and its Arab neighbors – that might have seemed unlikely partners in times of stress. Yet for a number of years, the Mediterranean Action Plan seemed to be working, and its meetings were well attended, even by the Israelis and their Arab neighbors. The case can still be made that mutual beneﬁt in a non-strategic context such as pollution control may sometimes outweigh traditional animosity. The structure of the Barcelona regime was copied, though not in every detail, by other designated regional seas. In each case, the idea was to have an initial legal instrument – a formal treaty – as the foundation building block, which would be couched in general, declaratory language, to set out the purposes and aspirations of the regime rather than to create binding legal obligations. The notion, in short, was to build commitments – or at least expectations – gradually throughout the region rather than impose obligations at the outset. Up to the mid-1980’s, the parties to the Barcelona Convention adopted a succession of sectoral protocols, including one that dealt with land-based sources of marine pollution, which was estimated to contribute nearly 85  of all the pollutants in the Mediterranean. The strategy behind the protocols was to convert the legal provisions and the general language of the original Convention into 28 speciﬁc joint commitments, each of which would have “operational legal eﬀect” by the 1990’s (Skjaerseth, 2002). But in practice very few ﬁrm “commitments” were adopted. Much of Barcelona’s early renown must be attributed to the support and publicity provided by the European Community and to the non-government “lobby” that publicized the problem, quoting from references by the 1972 Stockholm Conference on the Human Environment. Within a few years scientiﬁc studies seemed to reject the hypothesis that the Mediterranean was on the point of ecological collapse. Some, on the “development” rather than the “environmental” side of the debate, began to sense that the problem was chieﬂy one of beach maintenance, of concern to the tourism industry rather than a permanent threat to the marine ecosystem. Most of the other designated regional seas encountered a variety of local diﬃculties, including lack of money, inadequate scientiﬁc research, and a relatively weak sense of political commitment, despite numerous oﬀers of external assistance. Today only a few regional seas have declined to join the UNEP program. In the case of the East Asian Seas, for example, Chinese reluctance to participate in such an initiative has tended to dampen the spirits of those Southeast Asians who have devoted considerable time to ancillary UNEP eﬀorts such as the long-running COBSEA project of its East Asian Seas Regional Coordinating Unit (EAS-RCU). But by the end of 2005, it appeared that China had changed its policy, and might be prepared to play a central role. Even if this should happen, controversies would have to be resolved. For a regime of the Barcelona kind, is it necessary, as usually argued, that an eﬀective cooperative

Contemporary World Order in Profile

arrangement must be founded upon a formal treaty like the Barcelona prototype? Or should regime-builders experiment further with other kinds of legal instruments? The traditional European concept of “bindingness” is seen to be weakening. In the near future, the legal eﬀect of a instrument called a “declaration” might be diﬃcult to distinguish from that designated as a “convention”. Countries reluctant to be obligated, especially in general language, might see no great advantage in preferring the former to the latter. Do nervous states intend to shun any cooperative regime that is deemed to generate anything more risky than mere “expectations”? The Softening of International Law. Up to the mid-20th century, it was generally accepted, at least in the Eurocentric midstream, that more was gained than lost by insisting on the ﬁrmness of international law. The infrastructural concepts of the science were considered to be ﬁxed points of reference, allowing the making and maintenance of clear-cut distinction. Just as there was no compromise between liable and non-liable, between having and not having jurisdiction, between possessing sovereignty and lacking sovereignty, there was no middle ground between law and nolaw. Several anomalies arising from politics or geography were acknowledged, with some embarrassment, as having an untidy existence at the periphery of a discipline that otherwise prided itself on consistency, clarity and uniformity. Even the United States, which has a more open legal culture than elsewhere, has its own heritage of strict conformity with the law, though its normative basis seems to reﬂect a wider range of social and political values. The strictness of European legal systems seems almost inseparable from the central function assigned to the law courts. Strict compliance is, above all, an adjudicative value cherished by jurists. Legal reasoning has had to be developed at the highest logical level in order to meet the standards of an unusually demanding professional elite. Arguably the insistence on strictness was reinforced by theological inputs from the canon lawyers. In common law England too, a comparably pedantic (“legalistic”) strain became evident in any solicitor, advocate or judge who wished to acquire the reputation of a “good lawyer”. Earlier, something of a struggle had emerged between the demands of commercial laws and customs – the law merchant – and the king’s courts, which generally felt less obliged to make accommodation for local variations. But eventually, over the breadth of time, the gap between the two narrowed, as compliance with uniform norms and expectations gradually gained the upper hand. In short, public international law by the end of the 19th century had institutionalized into a profession that aspired to develop a strict legal culture that might eventually bear comparison with the civil law and common law cultures of the West. Progress made in that direction encouraged those idealists who envisaged legal development in the early 20th century in terms of higher technical standards through more frequent resort to international arbitration. The appearance of the Permanent Court of Arbitration in 1900, but especially that of the world’s ﬁrst standing court, the Permanent Court of International Justice (PCIJ) under the League, seemed to ensure the emergence of international law as a “strict legal culture”. The possibility of involvement in the adjudication of an inter-state dispute of some kind created a professional pattern of strict, doctrinal, treatment of legal issues on the part of Legal Advisers and

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their staﬀs. Young professionals recruited for legal work in government service were almost invariably required to have earned a degree in a law school whose pedagogical philosophy pivots on the reading of law through the cases. Especially in the West, most government lawyers, trained in “jurist’s law”, spend most of their working hours on legal analysis based on the assumption that an adjudication might be pending, even although they and their colleagues may rarely, if ever, see the inside of an international tribunal in the course of duty. In short, legal research in the foreign policy sector of Western government operations is driven by what most observers would consider an exaggerated fear of involvement in litigation, not unlike the situation that exists in a typical, Western, law ﬁrm. Traditional formalists in the international law community have found it easy to score points in the debate on “international soft law”. Those who equate the “strength” of a legal system with its “hardness” have deplored this deliberate eﬀort to weaken the international legal system through the negotiation of “non-binding” norms and instruments. Once the idea of a soft system settles in, they may fear, the cause of world order itself goes down. For them, only confusion can result from such radical notions as a “soft norm”. If the traditional doctrine of sources (of obligation) in international law theory is held out as the sole determinant, a candidate norm either succeeds or fails to meet the only legal test. If the candidate meets the requirements of the old doctrine, it qualiﬁes as law, and therefore as “hard law”. If it does not, it is not law at all. “The choice is binary” (Charney, 2000). If we allow theorists to set the language of debate, focused on the concept of a “norm”, we are held in a vice-like grip, unless we are prepared to ﬂing down the tightly held gauntlet, and oppose the binary theory with a relativity that comes closer to reﬂecting reality. To most readers, freed from any kind of jurisprudential allegiance, it may seem more useful to begin not with the doctrine of sources or norms, but rather with the realities of state practice. Though we all aspire to a world order based on “the rule of law”, we know that international law cannot be expected to provide categorical solutions to problems. Though international law usually has something of relevance to contribute to the negotiation of crucial issues, it is an input that often meets resistance of one kind or another, even within the international diplomatic community. Legal advisers in government service usually see themselves committed to a diﬀerent application of international law: a mode that might be described as “technocrat’s law” rather than “jurists’ law”. Their approach to contemporary issues of compliance and breach reﬂect “much more murky, ﬂexible and unruly ways than conventional international law, international relations analysis and other ‘compliance’ analysis based on analogies with national law seem to assume” (Bilder, 2000). The “operational logic” of technocrats’ law – product of the forum, not the tower – has preferred a “soft law” debate that focuses not on abstraction, such as norms, but on instruments (or mechanisms) by which eﬀorts to deal with compliance problems are actually executed in practice. Certainly no one disputes that anything that clearly qualiﬁes as binding international law does count in the conduct of international relations and is meant to be taken seriously. But much of what we might regard as “problem-solving diplomacy”, usually heavily inﬂuenced by international organizations or agencies, is experimental

Contemporary World Order in Profile

by nature. Not infrequently, instruments concluded ostensibly in hard law form are diﬃcult to treat as obligatory in their impact; indeed it may be uncertain whether such instruments will be widely accepted as generators of “commitments or even “expectations”. Sometimes, the diﬃculties are compounded by variances in drafting: certain provisions in a particular text may seem to be formally binding, and other not. What seems to have emerged is a pattern of “softening” that is expressed in numerous modes of instruments across a very broad spectrum, perhaps broader than can be encompassed under any simple theory. Non-lawyers generally care little whether a treaty or regime that purports to resolve an issue or solve a problem is “soft” or “softish”, provided it works. The experiments with soft law have been underway for half a century, covering a wide variety of topics. But the phenomenon has been most conspicuous in the ﬁeld of international environmental law. Within the international law community, the association between the two has not always been to the advantage of either. Perhaps the profession has a bias against the intrusion of morality – any kind of non-legal ethic. On the face of things, many international lawyers resent the notion that ecological ethos should be ranked above all other values. Moreover, lawyers have long taken pride in their reputation for factual accuracy, and some environmental activists are seen to have lost credibility because of their willingness to engage in the politics of hyperbole. The ability of environmental activists to engage the attention and sympathy of the political elite – and often entire electorates – has not helped to construct bridges of conciliation between the mainstream sector of government lawyers and their environmental critics. But environmental issues – as we shall see shortly – are now at the center of international politics and diplomacy, and government lawyers are immersed in such matters on a daily basis. Often environmental NGOs have been given access to the arena on such occasions, and are seen as a kind of “opposition” to be confronted. Sometimes, within a national bureaucracy, government colleagues serving the same national interest, but a diﬀerent minister, begin interdepartmental skirmishing on “technical matters” before the beginning of international negotiations. One chooses the kind of technicality that serves the immediate purpose. Often victory is won on what is essentially a substantive matter through procedural manipulation within the conference arena. Sometimes, a lawyer-diplomat may be forced to display unusual dexterity in order to throw oﬀ the challenge, even if it means a temporary, strategic recourse to “jurists’ law”. Dealing with Disparities As we have seen, the original drafting of the UN Charter took place in 1943 and 1944, attended by a small group of diplomats in the US State Department. It was envisaged as a political undertaking that would reform the world, albeit under the control of the victors of the Second World War. From the beginning, it departed radically from the Covenant of the League, which contained not a single provision prohibitive of war, and under the Charter the grant of veto powers was limited to the ﬁve permanent members of the Security Council. It represented a wholly new, much broader, vision

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of the world order, and yet still shaped by the traditional, realist conviction that international peace and security depended on the willingness and ability of the most powerful states to discharge their special leadership responsibilities. It was designed to be eﬀective rather than fair. From the perspective of most international ethicists in 1945, the most pressing mission of the United Nations was to correct the iniquitous inequities of the past. Finally, it seemed, an opportunity had arrived to ensure that the political universe would be run, or at least controlled, by a truly global organization: an eﬀective system of cooperation that would give full value to the old, but elusive, ideal of a system of sovereign and equal states. After hundreds of years of exploitation by the most powerful, there was now a genuine prospect that the victims of world history, still disadvantaged in any contest with the leading beneﬁciaries of the status quo, might be able to combine their resources in a strategy of distributive justice. Unavoidably, it would come close to a campaign of retribution. The most obvious disparity was between the colonizers and the colonized. At the beginning of the Second World War the world community was dichotomized between ﬁfty or so sovereign states, who had made up most of the League of Nations, and a huge totality of over eighty colonial territories. In 1939, seven of the sovereign powers – Great Britain, France, Belgium, Spain, Portugal, Italy and the Netherlands possessing a combined population of less than 200 million people – controlled almost 700 million under one kind of colonial regime or another (Kay, 1972). By 1945 nothing was more strongly felt than the necessity to proceed as swiftly as possible to the elimination of colonization and the eventual admission of all former colonies into the membership of the United Nations. Despite some lingering resistance on the part of some colonialist beneﬁciaries, the pressure for decolonization had become an overriding obligation. The purposes of the UN were set out in remarkably abstract language in Article I – in language more beﬁtting a preamble. Emphasis was placed on such ends as the maintenance of “international peace and security”, the development of “friendly relations among nations based on respect for equal rights and self-determination of peoples”, and the achievement of “international cooperation in solving international problems of an economic, social, cultural or humanitarian character …” The impression that Great Power control and international cooperation were intended to be dominant values was, however, oﬀset by the language in Article 2 (7): “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state …” This provision too has allowed for diverse interpretation. Lawyer critics have been unsparing in their attacks on the language of the UN Charter. For those advocating the primacy of a cooperative ethic in the newly organized world community, Article 2 (7) was the favorite target. For decades after 1945, most international lawyers continued to resent that legal experts were not invited to clear up ambiguities and other confusions in the usual manner at the end of a diﬃcult treaty negotiation. It is usual to place the blame for the unnecessary vagueness of the key Charter provisions on the political, largely non-legal, composition of the San Francisco Conference, which was convened in 1944 and given the task of ﬁnal revi-

Contemporary World Order in Profile

sion. Some at the time justiﬁed that looseness of Charter language on the ground that ﬂexibility should be left for subsequent practice. Instead, it provided the ground for incessant disputes over interpretation – almost rendering dysfunctional the world’s most authoritative constitutive instrument (Akehurst, 1982). Many of those delegations that were present at San Francisco, and even more that were not – mostly from the Asia-Paciﬁc region – chose to make the United Nations chieﬂy into an institution devoted to “solving international problems of an economic … character”. By the late 1960’s, when the UN had nearly attained its goal of universal membership, a huge, invincible majority was in place to ensure that economic development would remain at the head of the Organization’s priorities. As the chief defender of sovereign state entitlements, the UN General Assembly in particular felt obligated to shape a more equitable world by constant eﬀorts to reduce the disparities between the developed and developing nations. By the 1970’s the developmental model of international law had become the most conspicuous of all world order values. In almost every context dealt with by the United Nations, special attention was given to the problems of nation-building. Almost all issues were perceived to have an economic development dimension. Over the years, the result has been that the international community has been treated virtually as a dual phenomenon. The political strength of the development movement is derived from the legal principle of sovereign equality. That principle was given authoritative expression in the 1970 Declaration on Principles of Friendly Relations. “All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding the diﬀerences of an economic, social, political or other nature”. This general language is augmented by more precise provisions: (i) (ii) (iii) (iv) (v)

States are juridically equal; Each State enjoys the rights inherent in full sovereignty; Each State has the duty to respect the personality of other States; The territorial integrity and political independence of the State are inviolable; Each State has the right freely to choose and develop its political, social, economic and cultural system; and (vi) Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.

There is no denying the “constitutional” resonance of this language, but the legal status of these fundamental principles has been questioned. Textualists have reminded us that Articles 9-22 deal at length with the limitations of the Assembly’s authority, especially on “external” matters that fall outside its own special, internal competence with respect to ﬁnancial, budgetary, and other organizational matters that are identiﬁed in various provisions, such as the admission of new members, the appointment of the Secretary-General, the election of members to the UN bodies, and the election of judges to the International Court of Justice and of the Assembly’s own President and Vice-Presidents. By and large, its resolutions are intended only to have the force of recommendations. At San Francisco eﬀorts to grant it the right to create international

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law were defeated. As the Assembly grew in size, increasingly dominated numerically by a permanent majority of developing countries, more support has been given to the view that certain resolutions of great intrinsic importance to the development of international law can have legal eﬀects, if they qualify as a nearly unanimous interpretation or re-aﬃrmation of emergent principles of customary international law, whose validity does not depend on formal consent by treaty. Whether we should take a traditional (textualist) or progressivist (teleological) position on the legal eﬀect of UN General Assembly resolutions – as “non-binding” or “binding” respectively – can be argued out on purely juridical grounds. For example, those in search of a limited view of the “sources” of international law can justify themselves by granting paramountcy to Article 38 of the Statute of the International Court of Justice, which excludes international organizations as a “source” of international law. Critics of the restrictivist view have charged the dependency on the consensualist, statist Article 38 as a reversal of institutional logic, since the ICJ is a subsidiary body, subordinate within the hierarchical framework of the United Nations to the Organization’s organ of primary authority. On the whole, the campaign to narrow the gap between developed and developing nations has worked to the beneﬁt of the deserving. But it has also been applied beyond the realm of economic beneﬁts to other areas of interest and concern, and, reﬂecting a duality of standards that has brought the traditional doctrine of equality of states into question. Indeed the “aﬃrmative action” ethic at the global level, as at other levels, has forced many ethicists to grant primacy to considerations of equity rather than equality. This diﬀerential shift became a predictable outcome, as the gap between the most wealthy of the “developing nations” category and the developed countries narrowed, and as the most indigent moved further down the ladder. Not surprisingly, the newly rich nations were ambivalent between wishing to maintain solidarity with the developing bloc, on the one hand, and beginning to interpret the principles of aﬃrmative action as an impediment to their own further advancement like other developed states. The boldest eﬀort in the 20th century to deal more equitably with the disparate world community was the Third UN Conference on the Law of the Sea (UNCLOS), which, as we noted in Chapter One, ran the gauntlet from the early preparations in the late 1960’s to politically forced revisions in the early 1990’s. For almost thirty years these negotiations were driven very largely by a huge alliance of developing countries, which, though often split by diﬀerent interests and opportunities, managed nonetheless to maintain much of its integrity as a negotiating force throughout an extremely arduous process which was almost unique in its complexity, and in the level of sophisticated response called for. A remarkably innovative vitality was maintained throughout the UNCLOS III period of law-making conference diplomacy (Miles, 1998). The common purpose of the majority was to extend coastal state jurisdiction seaward, so as to assign exclusive or special rights to a state with a coast-line, whether developing or not. This revolution in the law of the sea was intended to extend the base of the coastal state’s economy. The beneﬁciaries would be determined by geography, not political or economic advantage.

Contemporary World Order in Profile

Few legal texts can compare with the United Nations Convention on the Law of the Sea as a mirror of the development ethic in contest with traditional forces within the global diplomatic arena of the last third of the 20th century. The nation-building theme of UNCLOS III is encapsulated in the ﬁfth paragraph of the preamble: “Bearing in mind that the achievement of these goals will contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries, whether coastal or land-locked”. The saliency of national development considerations is convincingly conveyed by the number of such references. In the main text, which consists of 320 articles, there are no less than 41 that refer to the needs or interests of “developing “ (or disadvantaged) countries: over 12 of the whole. So there is some truth in the charge that dualist standards played a prominent role at UNCLOS III. But the Second Committee, which was charged with the development of jurisdictional regimes, both old and new, was careful to avoid any softening of the normative core of the crucial, law-making instrument by permitting the use of relevant language. There is no explicit suggestion of special exemptions aﬃrming or reaﬃrming the basic jurisdictional rules of the revised law of the sea: for example, on the territorial sea, contiguous zone, straits used for international navigation, archipelagic states, continental shelf, regime of island, or enclosed or semienclosed seas. Most of the privileges accorded to developing countries were granted by the First and Third Committees in resource matters of economic signiﬁcance, where the strongest case could be made for reform of old or new disparities. For example, most of the developing coastal states were chieﬂy concerned with oﬀsetting the huge advantages enjoyed by developed countries in the ﬁeld of ﬁsheries. The small-scale vessels of most indigenous ﬁshing economies could not compete with the large, long-distance ﬂeets of the industrial states, equipped to exploit the world’s ﬁsheries with minimal restraints. The regime of the exclusive economic zone was conceived chieﬂy as the means by which the adjacent coastal state would acquire “sovereign rights” over all living and non-living resources out to its seaward limits 200 nautical miles from shore. The campaign for the EEZ was driven by Third World delegations – mostly from Africa and Asia – although the beneﬁciaries of that new regime included many developed coastal states, such as the United States, Canada, Australia, and New Zealand, whose geographical location favored them as fellow beneﬁciaries within the general category of “coastal states”. Similarly, developing coastal states were prominent, but not alone, among those intended to beneﬁt from the new regime on archipelagic states. Much diplomatic energy was also applied to the need to extend the potential beneﬁts of the new law of the sea to developing nations whose economic disadvantage was inherent in their geographic “luck of the draw”, such as landlocked states: that is, countries without a sea-coast. Even more dramatic was the priority given to the least developed parties to the Convention in revenue-sharing provisions, such as those under Article 82, which provides that payments or contributions shall be made to developing nations by continental shelf producers out of revenues gained beyond the 200 nautical mile limits of exclusive economic zone. This payment will be made

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through the International Seabed Authority to beneﬁciaries “on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and the land-locked among them”. A precise formula by which these future revenues will be distributed remains to be worked out in detail. As it stands, the developing countries were intended to be the principal beneﬁciaries of the entire regime created for the deep ocean ﬂoor: “the seabed and ocean ﬂoor and subsoil thereof, beyond the limits of national jurisdictions”. In numerous ways, the International Seabed Authority, though dedicated to the “common heritage of mankind”, was structured and designed with special regard to “the interests and needs of developing States and of peoples who have not yet attained full independence or other self-governing status recognized by the United Nations”. It has been suggested, however, that wholly rational ocean management is virtually inconceivable within the Westphalian framework of sovereign nation-state. At UNCLOS III ingenious eﬀorts were made to cultivate more equitable statist concepts, such as “sovereign rights”, that would be free of the rigidities associated with absolute sovereignty and yet provide the assurance demanded by developing and (mostly) newly independent, coastal states that their nation-building would be assisted by a huge seaward extension of their land economy without the threat of obstruction by technologically superior foreign states and enterprises. Indeed the establishment of the exclusive economic zone (EEZ) and the re-deﬁnition of the continental shelf accomplished at UNCLOS III have helped a number of these states to develop their own national ﬁshing and oﬀshore oil industries, and others to acquire new sources of revenue from foreign states or enterprises permitted to operate in their waters. To the extent that UNCLOS was a “Westphalian initiative”, designed to strengthen the system of sovereign state entitlement, the seaward extension approved at the conference might be regarded as a failure to achieve an entirely equitable system of state entitlement, apart from its contribution to a development of a system of ocean management. Despite the progress achieved at UNCLOS III in the development of regimes of “functional jurisdiction” (e.g. exclusive economic zone and continental shelf ), which are intended to de-territorialize the concept of extended coastal state jurisdiction, it remains diﬃcult to promote the goal of cooperative ocean management on the foundation of national entitlement that was solidiﬁed at UNCLOS III. Adjustments would have to be made within the Westphalian framework of state autonomy principles and analogues, through the application of relativist notions such as modiﬁed or conditional sovereignty, shared territory, or degrees of authority to the holders of EEZ and continental shelf entitlements. The future of such realist concepts is taken seriously by some political scientists, and there are some historical analogies. Yet in retrospect, it seems that the neo-Westphalian ethic of nation-building that pervaded the UNCLOS III restructuring of the law of the sea may have raised, rather than lowered, the barriers to international cooperation in the oceans, overweighing national entitlement at the price of transnational responsibility. In most countries around the world, the goal of truly eﬀective national ocean management remains remote, and will become less so only if the entitled state is prepared to sacriﬁce some degree of national autonomy, de facto if not de jure (in strict law). The “structural dilemma” is

Contemporary World Order in Profile

how to persuade sovereignty-holders to comply with globally negotiated provisions that can be implemented eﬀectively only through resort to genuinely cooperative ocean management arrangements. UNCLOS III was an extension of earlier North-South divisions. As the membership of the United Nations expanded rapidly between 1955 and 1970, the diplomatic arena was increasingly drawn into a larger, fairly bitter, debate on the unfairness of existing international economic arrangements and institutions. With growing strength in numbers, it was possible for the General Assembly to convert criticism into a genuine movement, directed initially by the ideological leaders of the NonAlignment Movement in the 1960’s with crucial logistical support by UNCTAD (the United Nations Conference on Trade and Development), which convened every four years after its inauguration in 1964. The UNCTAD connection proved essential to the organizational eﬀectiveness of a Third World movement that became known as the New International Economic Order (NIEO). With a view to stimulating discussion of the need to restructure the world economy, the UN General Assembly became the sponsor of numerous resolutions dating from its Sixth Special Session held in April 1974. The oﬃcial documents endorsing the NIEO were the Declaration and Program of Action of the New International Order and the Charter of Economic Rights and Duties of States, which were approved by the UN General Assembly in December 1974. The main thrust of the NIEO in its early years was to negotiate, as a bloc, fairer terms of trade and more liberal terms for ﬁnancing development. National development was acknowledged by most NIEO advocates as the likeliest road to progress. The case for reform of the world economy was not denied by the developed nations, but there opened up a rift between the Third World strategy, which pivoted on UNCTAD where it enjoyed the advantage of numbers, and the First World preference for the existing BrettonWood institutions of 1945, which the developed economies continued to control: GATT (the General Agreement on Tariﬀs and Trade), the IMF (the International Monetary Fund), and the World Bank (or International Bank for Reconstruction and Development). One of the early successes of UNCTAD was the amendment of GATT to remove the requirement on reciprocity in trade negotiations between developed and developing countries, and the Generalized System of Preferences (GSP) to permit the preferential treatment of developing countries. Other UNCTAD accomplishments included the promotion of commodity agreements, especially for commodities where price ﬂuctuations have kept the economies of less developed, resource-based economies exposed to devastating instability – coﬀee (e.g. Brazil, Columbia), sugar (e.g. Cuba, Argentina), tin (e.g. Malaysia, Bolivia), copper (e.g. Chile, Congo/Zaire), to list a few. It was accepted that “stable but fair commodity prices were required to ensure equitable terms of trade between the rich (consuming) and poor (producing) nations. But maintaining stability in the international market-place is a notoriously diﬃcult, perhaps impossible, goal. Many NIEO resolutions have obtained broad support in the UN General Assembly, but key provisions in the Charter of Economic Rights and Duties of States, which purport to reﬂect principles of customary international law, have been rejected, or otherwise failed to gain vot-

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ing approval, by many of the developed, market economy states (Williams and de Mestral, 1987). For example, many developed nations have drawn back from the assertion in the Charter of Economic Rights and Duties of State that each state is guaranteed, as a legal entitlement, “full permanent sovereignty over its natural resources and economic activities”, which was intended to include the right to nationalize foreign property in disregard of well-established legal duties to pay “adequate, prompt and eﬀective”, or at least “appropriate”, compensation. These conﬂicts took their toll on the NIEO movement, despite the pleas of so many for conciliation and fairmindedness. Critics of the NIEO have argued that the advocates on the other side contributed to the diﬃculties by introducing “cultural” explanations that virtually guaranteed failure at the negotiating table. The disparities between North and South were seen to arise in part from the near-monopoly of information held by the news agencies of the developed countries. But after the collapse of communism in Europe in the early 1990’s, the NIEO lost the political support of Soviet and allied delegations that were ready to blame low incomes in the South wholly on past exploitation under colonialism and neo-colonialism, simply by deﬁning “exploitation” so broadly as to include any kind of commercial activity, whether fair or not, whereby the ﬁrm retains any part of net revenue as proﬁt (or return to invested capital), instead of paying all net revenues in the form of wages. Without ideological and political support from the Second World (of socialist states), the NIEO expired. Since the early 1990’s the world ethos has undergone a transformation. The logic of growth and wealth-creation has assumed a primacy in the national economic policy of virtually all countries in the developed world, and, almost by necessity, by a growing majority among the developing nations. However unhappily, most governments feel obliged to accept the new realities of the global market-place (Ohmae, 1991). In some respects, the split between the North and South in the NIEO era has deepened and widened with the phenomenon of globalization. Led by the United States, with its unique position in the world economy, this new movement is much too inﬂuential to permit any resurgence of the NIEO. A huge, and rather embittered, controversy boils over into the media and academic community. Some commentators defend globalization by pointing to unprecedented rates of growth in world trade, and to the astonishing economic triumphs in China, India, and other countries that until recently were strong proponents of the NIEO. Others express alarm at the rise of corporate hegemony in all regions of the world. Some Westerners, long associated personally with the amassment of great private wealth, have turned to polemical attacks on the United States for its misuse of power in furtherance of globalization (Soros, 2004). Analysts of corruption in Third World countries have argued that globalization should be supported, among other reasons, as a major threat to corrupt politicians who gain personal beneﬁt from the availability of “incentives” provided by the politicians of the developed world. The theory is that as large corporations have become “transnational” in their physical location and owner/management structures, corrupt politicians in recipient countries will see less beneﬁt in lobbying.

Contemporary World Order in Profile

A few, however, predict the early demise of market economics and the politics that go with it. In a recent work, John Ralston Saul (2005) has gone so far as to pronounce the “oﬃcial death” of globalization. In challenging the conventional view of globalism as an inevitable and irreversible shift in world history he raises the prospect that the early 21st century will be featured by an erosion of certain facets of globalization and, probably, by a return to the ethos of the nation-state. Instead of surrendering or sharing sovereignty, he sees governments and citizens more strongly motivated to reassert their national interests. Despite the “theoretical rise in global prosperity”, the overwhelming impression in his eyes is of a succession of failed eﬀorts to use international institutions to deal with the great problems and issues of our time: racism, terrorism, religious fundamentalism, epidemics, immigration, international debt and other never-ending consequences of economic disparity. Saul, signiﬁcantly, nowhere refers to international law – which he probably regards as irretrievably lost in technical detail. His plea is not for more benevolent laws and more sophisticated institutions, but rather for a renewal of the humanist tradition, and of the ultimate, potential redemption of the individual, where the best hopes for benevolence reside. But it is not made clear why a humanist tradition would necessarily prosper merely because of the collapse of global economic arrangements. Guarding our Environment Environmental consciousness rose to such a high level in the second half of the 20th century that most probably assume that it grew out of the UN Charter. In fact, however, there is no textual reference whatsoever to environmental concerns of any kind, except indirectly through mention in Article I of the need to deal with international problems of an economic or social character. Moreover, in the early years of the United Nations almost all developing member states were more or less suspicious of developed country proposals for environmental safeguards or reforms, which were construed widely within the membership as a new form of neo-colonialism, motivated by sinister designs to control Third World eﬀorts at national economic development. Into the 1980’s and beyond, “environment” was seen to be in conﬂict with “development”, the highest priority in nation-building, and indirectly a form of idealism whose cross-border implications seemed to undermine the ultimate value of national sovereignty. Despite its late emergence as a model of world order, environmentalism has ancient roots. Classical antiquity deserves credit for discovering early evidence of environmental harms. Perhaps the most discerning of Roman observers was Pliny the Elder (Gaius Plinius Secundus [A.D. 23-79], uncle and adoptive father of the gifted Piny the Younger [A.D. 61-113]). Pliny the Elder’s own intellectual abilities were much admired by the Emperor Vespasian, who appointed him to several high positions, including eventually prefect of the Roman ﬂeet at Mesenum in Campania. By posterity, however, Pliny is most revered as author of his celebrated Natural History, a 367-volume compilation of scientiﬁc studies, many of which he had directed himself as a kind of unoﬃcial “scientiﬁc adviser” to the Emperor.

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It came to the attention of Pliny, in one of his oﬃcial capacities, that the health of the workers in the salt mines under Roman control – such as the famous cross-border mine at Hallein – was deteriorating with unusual celerity. Without the beneﬁt of scientiﬁc or medical research, he intuited that the cause must be the particles inhaled by the miners, and some precautionary measures were recommended with that in mind. Ironically, Pliny’s own death was due to the inhalation of gases discharged by the great eruption of Vesuvius in 79 AD, which overwhelmed Pompeii and Herculaneum. In his zeal to observe the phenomenon, Pliny had ventured too close to the fatal mountainside. The ﬁrst institutional safeguards to be designed for environmental purposes may have been the municipal controls on the burning of soft coal, which were introduced in certain European cities in the Middle Ages. The sanctions applied seem to have been quite heavy (Nicoloson, 1970). Conservation, as distinct from pollution control, may also have been enforced for the ﬁrst time in the late Middle Ages. In England, the ﬁrst enforceable wildlife conservation statute was enacted in the reign of Henry VIII – apparently at the urging of falconers, who may have been the ﬁrst environmental lobbyists to enjoy success at that level, though local voluntary restraints on staghunting in Bavaria were a much earlier tradition. Up to the Second World War, the main thrust for conservation after the 16th century came from Britain and the United States. In England, the tree-planting campaign of John Evelyn (1620-1706) was supported by inﬂuential members of the land-owning gentry. Evelyn advocated the banishment of air-polluting industries and urged what today we would call the “greening” of the urban environment. These ideas were too radical for general legislation, but they were supported by the British royal family and led to the cultivation of the royal parks of Inner London (Johnston, 1981). By the First World War the cause of conservation in Britain had been taken up by a dozen or more organizations, including the National Trust and the Royal Society for the Protection of Birds. As a result of these pressures from elite organizations – rather than the electorate as a whole – it became possible for the British government to adopt a national policy on conservation and to create the Nature Conservancy. Allegedly, this was possible only because of the wartime suspension of the “normal British mechanisms for ensuring inaction” (Nicholson, 1970). A few years later, naturalists like Julian Huxley and Peter Scott put ecology on the map. The implications for international society were important, because after the Second World War Huxley was appointed the ﬁrst Director-General of UNESCO and shortly thereafter became the founding father of the World Conservation Union (IUCN), a “hybrid” organization that has provided a bridge, consisting mostly of environmental scientists and lawyers, between the governmental and non-governmental communities. In America the cause of conservation was ﬁrst taken up in lectures and publications by such as George Catlin, Ralph Waldo Emerson and Henry Thoreau in the 1830’s. In 1864 George Perkins Marsh published Man and Nature, a work that has been hailed as “the fountainhead of the conservation movement” (Mumford, 1931). Appearing at a time when American conﬁdence in the inexhaustibility of resources, the “myth of superabundance”, was at its peak. Man, Marsh insisted, was a free moral agent working independently of nature. Wisdom lies in seeking to preserve the “bal-

Contemporary World Order in Profile

ance of nature”. The present generation has, above all, an obligation to secure the welfare of future generations – of all species. His was the ﬁrst modern voice in environmental history. In 1872, the US federal government established the world’s ﬁrst national park system at Yellowstone. Although not created primarily for conservation reasons, Yellowstone has nonetheless become a symbol of the American conservation movement. The most famous name in the cause of wilderness preservation was John Muir, a Scottish-born biologist, the founder of the Sierra Club, who ﬁrst articulated the modern philosophy of “nature preservation”. But his “nature for nature’s sake” philosophy brought him into conﬂict with another kind of environmental advocate. Giﬀord Pinchot was a prominent professional forester, who was essentially out of sympathy with Muir’s assertion that nature should be left alone. His advice as a conservationist was to make wise use of natural resources through systematic management, based on the biological concept of “sustained yield”. Along with his famous friend and adviser, President Theodore Roosevelt, Pinchot led the Progressive Conservation Movement of the 1890-1920 period. It was in those years that natural resource conservation became a permanent sector of public policy debate in America, and far beyond the shores of the United States. It is not quite true that natural resource management was the child of the 20th century. Since 1815, as we have seen, there have been numerous European treaty arrangements for the allocation of ﬁshing rights, navigational control, and other environmental purposes in international rivers and other boundary fresh water areas. The later ones evolved into something close to resource management regimes covering cognate problems such as irrigation, energy generation, and erosion control. In 1909 Canada and the United States created the International Joint Commission, a permanent staﬀ of engineers and biologists under the Boundary Waters Treaty. Arguably, this is the most venerable of the old environmental management regimes established at the transboundary level, although it has received its share of criticism from environmental activists over the years. One of its accomplishments is the conclusion of the Great Lakes Water Quality Agreement of 1972, and it has served as a model for the treatment of similar transboundary problems between the United States and Mexico. One of the lessons learned from IJC experience is that disputes can often be avoided or mitigated if appropriate cross-border mechanisms are put in place (Williams and deMestral, 1987). Another is that the most intractable marine (or freshwater) pollution problems originate in land-based activities (Remond-Gouilloud, 1981). As the complexity of pollution problems – and of environmental concerns more generally – became more clearly recognized, it became obvious in the late 1960’s that a comprehensive, truly global, approach should be taken to the entire spectrum of environmental issues. The outcome was the famous Stockholm Conference on the Human Environment held in 1972. It was attended by representatives of 113 UN member states, various UN bodies, most of the “specialized agencies” outside the UN framework, the International Atomic Energy Agency (because of rising concerns about nuclear hazards), by the General Agreement on Tariﬀs and Trade (GATT) (because of the increasingly apparent relationship between trade and environment), and by observers from intergovernmental and non-governmental organizations.

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The result of four years of preparations, Stockholm was conducted on an unprecedented scale. The delegates adopted a Declaration setting forth 26 principles for the preservation and enhancement of the human environment (Sohn, 1973). More ambitiously, consent was also given to an Action Plan consisting of over 100 recommendations for environmental action at the international level (Johnston, 1974). Perhaps the most important of these recommendations was that environmental concerns must not be invoked as a pretext for discriminatory trade policies. On the whole, the developing country delegations did not press too hard at Stockholm. Some Western (or Northern) sensitivity to Third World dilemmas was displayed in both documents. But in the years that followed, the North-South conﬂicts sharpened under the ﬂinty rhetoric of the NIEO. As we have seen, UNCLOS III (1968-1982) became the principal arena for negotiating regulatory arrangements for all types of marine pollution, but by the 1980’s environment development issues had expanded far beyond the law of the sea, and apparently beyond the reach of international relations. For more and more observers, the struggle was now between regulation and prohibition. The Stockholm Action Plan was essentially the work of scientiﬁc idealists, by professionals who, like their lawyer colleagues, were not yet ready to abandon the cause of regulation. It was essentially the same elite of scientists and lawyers who had worked together at Stockholm that dominated the Third Committee negotiations on marine pollution prevention and control issues at UNCLOS III. It was an alliance that worked well, open to new institutional ideas within the framework of rational management and regulation, which had emerged from the 1960’s from a succession of oil tanker groundings and collisions. Telegenic scenes of oil at sea had played a large role in convincing the general public of the necessity for international cooperative action, and regulation was the tested and tried weapon at sea. However, IUCN had taken a more critical view, regretting the failure at UNCLOS III to endorse and develop the lessons of ecology, especially as applied to ﬁsheries (deKlemm, 1981). As eﬀorts to revive the world’s major ﬁsheries continued to ﬂounder – and as more and more ecologists graduated from the universities – proposals for the management of ﬁsh and marine mammals became more radical, causing splits within the natural resource management profession. In the notorious case of whaling, for example the ethic of prohibition began to attract more public support than the older techniques of regulation. Celebrities looking for scandals to denounce turned to the annual fur seal harvest oﬀ the coast of Newfoundland in the late 1980’s. The UN General Assembly, reﬂecting widespread public opinion in Western Europe and elsewhere, was persuaded to ban large-scale ﬁshing with driftnets, a practice that seemed unnecessarily destructive of non-commercial (non-target) species (Rothwell, 2000). Predictably, this action revived the old controversy over the legal eﬀect of UN General Assembly resolutions, allowing for the counter-argument that the Assembly’s role was essentially political or ethical. Between 1972 and 1992 many sectors of the world society, particularly in the Western world, became more and more decisively engaged in an expanding range of international environmental issues. Especially in Western Europe and America, environment was near the top of almost everyone’s agenda, but most environmental controversies had become captive to a wide, and ever-widening, array of scientiﬁc,

Contemporary World Order in Profile

economic, philosophical, cultural, ethical, political, legal and other disputes. In places, out of control, the debate had become polemical in tone. Disciplines and sub-disciplines were in danger of division over the question whether this new value enjoyed a special kind of paramountcy. Among lawyers, there was a challenge to the old tradition that international law was – or was becoming – a system of strict law. Especially in Europe, many jurists virtually renounced the idea of “soft law”, insisting that if the new brand of environmental treaty or regime were to be acceptable as evidence of “international environmental law”, it would have to qualify through the traditional formal tests of normativity as well as the procedural requirements of signature and ratiﬁcation under the law of treaties. Advocates of international environmental law envisaged the emerging ﬁeld as “a spectrum of rules. Within nations, the legislatures enact statutes and agencies adopt regulations. Local or regional authorities enact laws within their assigned competences. Among nations, treaties and similar agreements are agreed to, and international organizations composed of nations adopt a policy resolution recommending how governments should behave … In addition, general principles, grounded in basic morality, guide nations as they do individuals. Finally, unwritten custom can be said to be law, if it is adhered to fairly consistently and acknowledged as binding” (Robinson, 1993). Such a broad view of “law” required a new level of ﬂexibility in the international law community, a level – it is fair to say – that was more likely to become conspicuous among government lawyers engaged in “technocrats’ law”, and their academic supporters. It was a victory that the arena was bound to win and the tower bound to lose. It was a victory also that depended on the emotional and idealistic energies maintained on the fringe of the arena: those NGOs that formed the activist sector of the “transnational ethical community”, whose chief motivation was to ethicize the international legal system. It would be an overstatement to castigate the classical civil law jurists of continental Europe for rejecting international environmental law because of the consensual weakness of its normative foundations. The early development of environmental law at the national level in the 1950’s and 1960’s owed much to legal innovation in Germany and neighboring countries, which were prepared through European Union legislation and directives to create their own transnational legal system. For these idealists, the environment was a ﬁeld that Western Europe could take the lead in developing through cooperation among their own member states. By the 1980’s, moreover, Europeans were extremely inﬂuential in those sectors of the international bureaucracy that have an environmental mandate. To foresee the future of international environmental law, we have to envisage a continuing trend to the merger of laws and related values at diﬀerent levels of world society: certainly a merger eventually will be necessary between regional (EU) and general world community levels of a “world law”. The tenth anniversary of the Stockholm Conference of 1972 had arrived without any new major concerted initiative by the United Nations. The United Nations Environment Programme (UNEP) had been set up to promote the original cause of conservation, but it had had to contend with existing ﬁeld organizations with narrower sectoral mandates but much larger budgets. The Food and Agriculture Organization (FAO), based in Rome, the largest single technical component of the UN system, was

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not easily induced to be “coordinated” by an unproven newcomer to the international bureaucracy. It appeared that these technical agencies required overall direction in order to deﬂect them from a continuation of incremental change through sectoral advances, and to return to a truly “multilateral” approach. What was needed was an authoritative updating of the “big picture” of the world’s “interlocking crises”, which seemed, more than ever, to assume environmental dimensions. To serve that purpose a small, independent body was established by the UN Secretary-General in December, 1983: the World Commission on Environment and Development, chaired by Mrs. GroHarlem Brundtland, a former Prime Minister of Norway with many years of experience as environment minister. Great care was taken to select Commission members capable of cooperating “to formulate an interdisciplinary, integrated approach to global concerns and our common future” (The World Commission on Environment and Development, 1987). Apart from the areas of expertise that had to be covered, it was essential to keep a balance between those associated with developing countries and those from industrially advanced nations. It was important that the Commission members could look beyond the “divides of cultures, religions and regions”. The most innovative contribution of the Brundtland Commission was its concept of “sustainable development”. It had to be ensured that the development needs of the present could be met “without compromising the ability of future generations to meet their own needs”. The limits to growth were not absolute or inherent in the nature of things: they were “imposed by the present state of technology and by the ability of the biosphere to absorb the eﬀects of human activities. But the Commission agreed that “technology and social organization can be both managed and improved to make way for a new era of economic growth”. Despite the marshalling of grim details in so many inter-related sectors, the Brundtland Report was a relatively optimistic document, and its eﬀect on the planners of national governments and international agencies was fairly spectacular. A challenge had now been set down in a well-informed, eloquent study by a distinguished group of experts and government leaders. It was now up to the arena to respond. The decision to re-capture the environmental agenda, envisaged as a major component of world law and order, was taken in 1989, when the UN General Assembly decided to convene the Earth Summit in 1992, twenty years after the Stockholm Conference on the Human Environment. The reluctance of the United States government to play a key “pro-active” role in the planning of the Earth Summit has been ascribed by the Chairman of the Preparatory Committee, Ambassador Tommy Koh, to George Bush’s “pre-occupation with winning” the US presidential election in that year (Koh, 1993)! The principal outcomes of the “elephantine” Earth Summit were two instruments: the Rio Declaration on Environment and Development (a revision of the Stockholm Declaration), and Agenda 21 (a totally comprehensive reworking of the Stockholm Action Plan). The latter embraced a huge portion of worldwide concerns about the present and future state of the environment, under no less than forty headings, extending to over 600 pages. It soon became the “green bible” of the world community, possessing something close to “sacred text” status, even inspiring ideals in the same

Contemporary World Order in Profile

vein at the sub-global level (Johnston, 1998). Outside the trade sector – which has specialized in remarkably proliﬁc reports – no planning document of comparable scope and sophistication had ever been negotiated. Its prestige as the world’s oﬃcial environmental blueprint seemed unassailable. The purpose of the Rio Declaration, on the other hand, was to strengthen the normative foundation of international environmental law, transcending the kind of legitimacy associated with formally binding legal instruments. The result has been to widen the split among international lawyers, between those willing and those unwilling to accept the Declaration as a corpus of “binding” principles that have been ”evolving” within the arena since the early 1970’s. Many lawyers still resist arguments that the Declaration has acquired the “obligatory” force of a formal treaty, or are obliged to take that line of argument in oﬃcial inter-governmental discussions of a current dispute. Others focus on the philosophical question whether such a text can be “binding”, in some sense that satisﬁes most practitioners of “technocrats’ law”, without meeting the ultimate standard of an obligatory agreement that would be necessary to meet the formal requirement that governs within the litigational framework of “jurists’ law”. To the extent that there is still a division of this sort in the international law community, should we say that a context such as international ocean management is weakened by a degree of intellectual anarchy? If we place our hopes less in the decisions of international tribunals that adjudicate on the basis of “strict law” than in the bureaucratic and diplomatic elites, we might take comfort in the practical realization that it is these non-judicial elites that will have the opportunity to work in collaboration with ocean industries and coastal communities, the principal users and abusers of the marine environment (Johnston, 2006). At the time of writing, the most famous environmental controversy has arisen from the Kyoto Protocol, which in turn was the world community’s boldest response to the evidence of a worsening threat of climate change (Doelle, 2006). The ﬁrst-level response was the United Nations Framework Convention on Climate Change, which was negotiated and concluded by most nations in 1992, twenty years after Stockholm. For many environmentalists, human activity had become established, at the least, as a substantial part of the cause of the worldwide spread of greenhouse gases (GHG). Many were prepared to accept the unthinkable: that human development, in its present form, had become unsustainable. By the late 1990’s, a growing majority of nations were prepared to blame the industrially developed states for the discharge of GHG over the course of the last 200 years since the Industrial Revolution. The prevailing view was that only the old industrial polluters of the developed world should be expected to make the necessary sacriﬁces by agreeing to reduce their share of GHG emissions. It was agreed to overlook the increasingly important contributions to the overload by the most rapidly growing of the developing state economies, such as China and India. In the ﬁrst phase of implementation (Kyoto I) these and other newly industrialized states would be excused responsibility for any part they might now be playing in the poisoning of the atmosphere.

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The mechanism chosen for the ﬁrst phase of implementation was the Kyoto Protocol. This controversial, now famous, instrument was designed speciﬁcally to spell out in precise, and legally binding, language the commitments – indeed treaty obligations – derived from the more general, aspirational, provisions of the Framework Convention. Kyoto was by far the toughest, hard-law, pollution control treaty ever negotiated. Each industrially-developed state was held accountable for a precise proportion of the emissions within a speciﬁed period. Each was assigned a binding target for reduction of the emissions ascribed to it. The United States, for example, was held responsible for 36 and Russia 17.4. Complicated negotiations were needed to carry the majority, especially those of the developed states that were placed in the line of immediate obligation, under the ﬁrst phase of Kyoto. These parties were left in no doubt that commitment to such a stringent environmental objective would have a permanent impact on almost every aspect of their economy, and of their society (Adler, 1997). Charges of unfairness arose not only from the arbitrariness of the general divide between “developed” and “developing” countries, but also from the structural variability of the world’s economies. The conference had to deal with the reality, imposed by economic geography, that many countries had become very largely dependent on non-renewable natural resources such as coal, iron, oil, gas, and other extractive resources. For hundreds of years, these non-renewable commodities had been highly visible features of world trade patterns, exchangeable with a long array of other familiar trade goods (foods, textiles, clothes). Given the disparity in the distribution of the world’s natural resources, it would be necessary to create a system of balances. Despite the use of a treaty instrument – to which all sovereign states have the right to grant or withhold consent – Kyoto advocates were united in their conviction that climate change was such a fundamental challenge to the international order that a stand had to be taken against the traditional prerogatives of sovereignty. Here, above all, they insisted, was a problem of such magnitude that the cooperation of the entire world community was the most compelling of all imperatives. The old model of autonomy simply had to yield to the new model of environmental collaboration, or undergo a refurbishing (Chayes, 1995). The demands of international environmental law, like those of the contemporary international law of human rights, were ethically paramount. Some critics were impressed with ingenious eﬀorts to incorporate equitable trading techniques into the Kyoto Accord. Oversimpliﬁed, the purpose of the Emissions Trading (ET) mechanism was to create “credits” for countries that had brought their emissions below the level assigned to them under the Protocol. Such credits could be used for payment in normal bilateral trade negotiations with another Kyoto party that had exceeded its own quota of emissions (Bachelder, 2000). No net global environmental harm could arise in such a situation, since the pollutant in question is a “fungible”: that is, it is a wholly inter-changeable commodity whose distribution cannot aﬀect the total volume allowed to be consumed within a controlled system such as the Kyoto regime. But can we trust the market to be fair and eﬃcient (Chinn, 1999)?

Contemporary World Order in Profile

At the time of writing, it seems impossible to reconcile all existing viewpoints on the Kyoto experiment. Some of the most ardent proponents emphasize the tiny role that Kyoto, in its present version, can play, if the world community of the 21st century is to take ﬁrm control of the climate change problem. Other countries, even among those that have signed and ratiﬁed, have found the provisions unacceptably “draconian”, threatening ruin to identiﬁable regional economies. Objections can be raised on principle about the feasibility of such a penal strategy. Many, of course, take shelter in the uncertainties and complexities of climate science. Most publicity has been given to the hostility directed by the United States and a few other “victim states” to the Kyoto Protocol. These countries are not, of course, violating any rules of international law in declining to sign or ratify Kyoto. But it is often argued, from the accumulation of “non-binding”, “soft law”, or “emergent” norms in the ﬁeld of environment, that quasi-obligatory “commitments” have become the normative foundations of that sector of international order. The United States government seems to have several reasons for regarding Kyoto as a ﬂawed system, but the most insistent of its criticisms is that the disportionately heavy obligations that would be pressed upon the world’s leading polluter is bound to be harmful to the US economy. President Bush’s advisers have pointed out that China, the biggest coal burner of all, will soon become the world’s largest consumer of oil and gas. In any event, Kyoto critics have questioned whether the stick is likely to be more eﬀective than the carrot. The answer will be made known when current American experiments in a “non-retributive” regime, now being developed in some of the more advanced American states, will be available for independent evaluation. Legal uniformity may not be attainable. Instead, we might have to return to the analysts who see a divergence among three orders of legitimacy at the level of global governance. First, among the jurists of the “tower” who invoke the “litigational” (or “scientiﬁc”) ideal of international law and deplore the “softening” of international law, some comfort is taken in the formal treaty character of the Framework Convention and the binding nature of the Kyoto provisions. So it is the US policy of non-commitment that they object to: a failure of cooperation. It is a matter of political, scientiﬁc, economic, and ethical judgment whether to adopt the Kyoto approach. For government lawyers of the “arena”, who live by the “diplomatic” or “bureaucratic” ideals of world order, the Kyoto Protocol cannot be elevated to the level of paramountcy, when so many legitimate non-legal factors and values have to be taken into account. The Kyoto provisions, in short, are likely to be viewed as norms to “guide”, rather than “govern”, matters of such extreme national importance. For ecological ethicists, on the other hand, expectations for full compliance with Kyoto are the highest. Those associated with the NGO “forum” leave little doubt what ethic, in their view, “governs” an issue to which most environmentalists assign the highest of all priorities. Cultivating a Benevolent Society In the eyes of many international legal idealists, the strongest case for world order is that it represents the best prospect of benevolent rule for all. World order advocates reject anarchism, whatever beneﬁt might be squeezed out of the excessive ideology of

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self regarding libertarianism, elevated without regard for the welfare of others. Purely political theories of the “good society” are found wanting unless they acknowledge the central role of legal principles and institutions. In frankness, it is diﬃcult to be truly optimistic about the future of the world. We are oppressed with an unending succession of books, essays and reports that warn us of the most intractable dangers that confront us in the early years of the 21st century. It requires an almost spiritual eﬀort to extract from world history an optimistic view of our collective human capacity to deal intelligently and compassionately with the appalling list of challenges that we have inherited from the 20th. One comfort that we might take from early history is the evidence of the occasional benevolent leader. Such leaders seem to have sprung up from almost every imaginable set of circumstances, from virtually every major civilization. Those of us nervous about the future might ﬁnd some solace in the possible emergence of a remarkable leader, capable of deﬂecting us from avoidable harms. Most of us, however, are perhaps unready to place high expectations in individual leadership. We might be doubtful that personal leadership provides benevolent solutions. In the distant past it seems that much depended on the loyalty and capacity of the leader’s associates. No great leader could remain in power without a sizable group of informers and advisers. It is common today to credit Elizabeth I’s shrewdness as the English leader, in dark and turbulent times, to the number and ruthlessness of her spies and loyal ministers. In assessing the leaders of the past, however, we are at the mercy of the record. In early – and not-so-early – times, the record was written, and sometimes re-written, by the ruler’s loyalists and advisers. We are also at the mercy, then, of those who had mot to gain through corruption of the oﬃcial record. We can only guess how many of the rulers’ advisors were motivated by loyalty to their master, whereas others were able to manipulate to their own personal advantage. Corruption may be the fall-out in either case. Some received their education within their ruler’s household; others were provided with an education under patronage from someone in the ruler’s debt. The most advanced systems of rule settled eventually into something resembling an “administrative state”, whose knowledge and experience of matters of state took up residence within a bureaucratic tradition. With the arrival of oﬃcial, or oﬃcially condoned, records, the possibility of massive distortions of the past arose, creating huge problems for all future historians. It is now fashionable to engage in mind-bending speculation in areas where the record seems weakest. The possibility that the earliest existing documents might have been systematically corrupted has been added as fuel to the ﬁres that contributed to the destruction of the great libraries of classical antiquity at Alexandria and Pergamum in the around 391 A.D. Most of the original manuscripts of classical Greece on the philosophy, history, science, geography, and drama of that era perished as a direct or indirect eﬀect of these ﬁres and other assaults on the leading libraries and archives kept there, in the eﬀort to realize Alexander the Great’s dream of building the ﬁrst truly international library. The gaps created by these devastations were enormous, and irreplaceable. New doubts about the ancient past have given rise to remarkable theories: for example, that Christianity was invented by Roman political strategists in the 3rd century (Atwill, 2005). Even more

Contemporary World Order in Profile

audaciously, it has been suggested that all the major ﬁgures of the early Christian era, including Jesus himself, were derived from actual events and personalities as early as the 14th century B.C. Egypt (Osman, 2005). Historical records, it seems, will always be subject to the doubt of the skeptics. The evidence of civic benevolence will always be open to challenge. Yet it is with that evidence that we must begin our search for the ethical foundations of the modern human rights movement. Virtually all contemporary textbooks in international law include an entire chapter on the international law of human rights. But the idea of a separate ﬁeld of this kind is new, originating in the UN Charter (1945) and several key agreements that might be regarded as the “oﬀspring” of the Charter. Since the early days of the United Nations, a great deal of attention has been given to the political, ethical and legal implications of the three famous instruments that are now regarded as the foundations of the international law of human rights: the Universal Declaration of Human Rights (1948); the Covenant on Economic, Social and Cultural Rights (1966); and the Covenant on Civil and Political Rights (1966). Today their progeny may constitute the largest “family” of international agreements. If we look at human rights from the perspective of the late 19th century, we do so from within a system that was still conceived chieﬂy as a mutual convenience for sovereign nation states. Strictly deﬁned, the “classical” international law of that period ﬁrst treated individual aliens as deserving of protection from abuses by local authorities. Throughout the 19th century, ad hoc international claims commissions and tribunals provided rules in the form of certain minimum standards for the treatment of aliens. In the case of a violation of these standards by a sovereign state bound by them, the violating nation was obligated to pay reparation to the victimized alien’s state. Curiously, by the standards of a later generation – but logically for a system limited to the rights and duties of states – states generally had no direct obligation in international law to protect the rights of individuals. Resident aliens had to hope for recourse to the national judicial or administrative agencies of the host state. Moreover, there was no international right of intervention in a situation where citizens of a foreign state were subject to ill treatment by their own state. There were no international rules to trump those of the sovereign state, in a system designed for the beneﬁt of states. Yet by the early 19th century it was beginning to be suggested, in the tower, that the rule of non-intervention should not be applied when a nation’s ill-treatment of its own population clearly violated the dictates of universal justice and humanity. The most illustrious of the early calls for world justice, in an era that seemed almost tone deaf to humanitarian appeals, was, of course the anti-slavery movement. Although these humanitarian eﬀorts originated in the 17th century, as we have seen, slavery was a practice that extended back beyond the mists of time. Its defenders pointed out that numerous economies, local as well as national, would collapse overnight if they were suddenly denied access to the cheapest form of labor, and that in any case many slave-owners were benevolent employers. To focus on the point of least resistance, the campaign concentrated ﬁrst on the slave trade. Drastic reductions in the supply of slaves would, it was hoped, be the most eﬀective strategy for ending the widespread, almost universal, institution of slave ownership. Tragically,

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the ﬁnal victory over both slavery and the slave-trade took much longer than the pioneering philanthropists could have considered acceptable – even into the age of the United Nations (Thomas, 1998). Yet their accomplishment stands as the ﬁrst major success in the never-ending struggle to build a benevolent world society. It was the cause of minorities, rather than individuals, that gathered attention in the early 20th century. Before then, as we have noted, it had become common for powers to intervene to prevent the persecution of religious minorities by other sovereign states, such as Oliver Cromwell’s intervention in France on behalf of French Protestants in 1655. Often the humanitarian motivation behind such an initiative failed to conceal the interplay of political interests. It tended to be politically beneﬁcial to the intervener at home, permitting the use of force to be digniﬁed as a “religious war”. Sympathy for national minorities abroad coincided with the age of romantic nationalism in much of Europe, where it was popular to maintain that each nationality should form its own state, and – ideally that each state should consist of only one nationality. Today we still use the term “nation-state”, but never with that dual connotation. At the present stage of world history, “nation” and “state” rarely coincide. The original coiners of “nation-state” would be astonished to ﬁnd such a diﬀerent world today, when masses criss-cross national boundaries, legally or not, in such numbers as to legitimize the concept of a future “world society”. By present evidence, the future world society will consist mostly of cosmopolitan host states, each struggling with its own set of minority issues with the assistance of international commissions and tribunals. The need to guarantee and regulate minority rights through formal treaty-making was especially obvious in central and eastern Europe, in the late 19th and early 20th centuries, when the growth of national independence movements was at its peak. The chief beneﬁciaries of the special treaties were minorities in Czechoslovakia, Greece, Poland, Romania, and the Serbo-Croat Slovene region of the Balkans. However, it was the League of Nations in the 1920’s that enabled the international community to deal more eﬀectively – or at least more systematically – with the problem of national minorities as an annual issue on the world agenda. It is the United Nations, of course, that deserves credit for supplying most of the political energy behind the modern development of the international law of human rights. We are living in an age of “rights expansionism”. Scholars who specialize in that area of international law have together listed scores, if not hundreds, of human rights that deserve the active promotion and protection of the United Nations and other international organizations and agencies, including a number of judicial bodies. The problem now is that the UN mechanisms responsible for the promotion of human rights are overencumbered. Apart from other problems, the lists of categories of international human rights – and of their violations – have continued to lengthen. As far back as 1980, Harold Lasswell’s famous framework of value categories (McDougal, Lasswell and Chen, 1980) oﬀered a systematic approach to the taxonomy of human rights. The eight Lasswellian values elevated to the highest level of abstraction were: (i) respect (freedom of choice, equality, and recognition); (ii) power (making and inﬂuencing world community decisions); (iii) enlightenment (gathering, processing and

Contemporary World Order in Profile

disseminating information and knowledge); (iv) well-being (safety, health and comfort); (v) wealth (production, distribution and consumption of goods and services; control of resources); (vi) skill (acquisition and exercise of capabilities in vocations, professions and the arts); (vii) aﬀection (intimacy, friendship, loyalty, positive sentiments); and (viii) rectitude (participation in forming and applying norms of responsible conduct). Each of these “value processes” has given rise to a proliferation of human rights demands and expectations. Within the orthodox Western framework, the institutional tasks have to be allocated among the four familiar organs of state government: the legislature, the executive, the judiciary, and the administrative, which had become familiar features of rules in most “advanced” Western systems by the 17th century. For Lasswell, however, these and other state institutions had to share the tasks of implementation over seven, not four, distinguishable phases: (i) intelligence (obtaining information about the past, making estimates about the future, planning); (ii) promotion (advocating general policies, urging proposals); (iii) prescription (projecting authoritative community policies); (iv) invocation (making a provisional characterization of a concrete situation in terms of a prescription); (v) application (making a ﬁnal characterization and executing prescriptions in a concrete situation); (vi) termination (ending a prescription or arrangement within the scope of a prescription); and (vii) appraisal (comparing goals and performance in the decision process). Behind this rather formidable language, the size of the task of implementation is revealed. Equipped with any one of Lasswell’s value categories – or of anyone else’s – none of us would have diﬃculty in listing dozens of human rights, even as a personal project. So it should not be surprising that specialists both in the tower and the arena have assembled lists of hundreds of applicants for consideration. These compilations vary enormously in the intensity of harms caused by human rights violation. So the specialists have met many times on the ﬁeld of intellectual battle to ﬁnd a way of distinguishing the candidates for blacklisting as human rights oﬀenders. The size of these lists depends chieﬂy on the doctrinal position taken by analysts on the range of human rights now deemed to be established in “state practice” and in “customary international law” (Simma and Alston, 1992). These lists are now so long that the UN system has virtually broken down. If the work of implementation were only half as long as Lasswell’s list of bureaucratic functions, it should hardly be surprising. In practice, of course, the UN funding available for that purpose is but a fraction of what would be required. Even more diﬃcult is the problem of interpretation. The setting of human rights priorities is a political, not a legal, matter, and most would agree that the UN General Assembly is, in principle, the most appropriate mechanism to choose representatives from its membership, which includes all major systems of civilization. Unfortunately, several parts of the principal legal texts have been found incompatible with some of the numerous cultural and religious systems that make up the organized world community. Numerous controversies have arisen from cultural and religious diﬀerence among the delegations, on protections for women and children, for example. The general principle of non-discrimination – on racial, religious, cultural, sexual and other

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grounds – has given rise to a huge volume of guarantees in documents produced under the auspices of the General Assembly, the Economic and Social Council, the Human Rights Commission, and the Subcommission for the Prevention of Discrimination and the Protection of Minorities. The most prominent of these instruments dealt with such matters as the elimination of all forms of discrimination; the elimination and repression of the crime of apartheid; the rights of married women; the need for consent to marriage; the minimum age for marriage; and marriage registration procedures. Also the list includes the status of refugees and stateless persons, and the protection of all persons from torture and other “cruel, inhuman or degrading treatment”. Many of these and other UN human rights declarations can be regarded as descendents of the heritage of the European, Scottish and American Enlightenment of the late 18th century, which came out of the arena as well as the tower. Rights proclaimed in the Universal Declaration were promoted and reinforced by a widening variety of instruments. Sometimes these rights which were seen to be culturally sensitive have been deemed obligatory only through the conciliatory process of “gradual application”. Despite the ideal of universality in the international law of human rights, it has often been found necessary in the arena to acknowledge diﬀerent levels of compliance through the acceptance of a wide margin of discretion in the interpretation of the most controversial provisions. (Capotorti, 1986). The rancorous nature of UN debates on human rights issues is not new. Even the original Universal Declaration of Human Rights (1948) was caught up in the rhetoric of the Cold War, but the oldest prohibitions reverberate from much earlier times: for example, the prohibition of slavery and the slave trade (Article 4), which comes down from the most distant past, and the prohibition against “torture” or “cruel, degrading treatment or punishment” (Article 5), which has a widespread though not quite universal, history. Indeed, as we know from almost daily accounts of mistreatment, torture of some kind or another extends today beyond the original category of military prisoners of war – those intended to be the ﬁrst beneﬁciaries – to almost anyone whose abduction, detention and torture might seem to serve some desperate political or religious end. The most basic right of all, the “right of life, liberty and security of person” (Article 3) has credentials that go back to the idealists of the 17th century such as John Locke (1632-1704) that would lay the foundation for the great ethical philosophes and literati of the 18th. In theory, the ethos of non-discrimination (Article 7) was familiar before the end of the 19th century, but despite the eﬀorts of early advocates of women’s rights long before the League and the United Nations, it would take the whole of the 20th century for the principle to be institutionally established in the “hard law” form of binding international legal instruments. In most societies it appears that genuine conversion into a non-discriminatory legal culture will take generations of further eﬀort. In addition to cultural disparity, the development of the international law of human rights has had to contend with strongly held ideological convictions. If we compare the list of human rights granted protection under the 1948 Declaration with the texts of the two Covenants of 1966, we ﬁnd a striking anomaly. Whereas the ﬁrst 22 articles of the Declaration spell out in some detail the promises of what would become the Cov-

Contemporary World Order in Profile

enant on Civil and Political Rights, only ﬁve thereafter (Articles 23-27) overlap with the domain of the Covenant on Economic, Social and Cultural Rights. The main motivation behind the two Covenants was to bring them into some kind of legal or ethical equivalence, so as to correct the apparent imbalance inherent in the Declaration. Readers who were paying attention to the ideological struggles between communism and capitalism at the height of the Cold War will recall the emotive power in these struggles. The collectivist ethic of the Marxist Leninist and other socialist countries was vulnerable to many points under the Declaration, which was strongly imbued with the individualistic ethic of the United States, Western Europe, their allies and dependents. It was at that time, in the 1960’s and 1970’s, that the Non-Alignment Movement attempted to ﬁnd a balance between the two warring ideologies. Until the mid-1970’s, however, the political advantage in the UN General Assembly lay mostly with the “Western” liberal bloc. With the completion of de-colonization and the attainment of full UN membership, the advantage in the Assembly and related organs tilted over to the “left”, allowing the New International Economic Order and similar “anti-Western” movements to win more and more of the political battles against the advantaged “North”, even at the same time as the Soviet Union and most of its socialist allies were beginning to soften most of their earlier extremist dogmas and oﬀer a more conciliatory position on a number of important political issues in the late 1970’s, especially after the death of Mao Tse-tung and other fanatical ﬁgures of his day. Yet it was the Human Rights Committee (HRC), directing the system of implementation of the Covenant on Civil and Political Rights, that set up most of the UN procedures, which eventually included the regular holding of public hearings in response to reports from member states. Compromises were necessary, but perhaps surprisingly, very few member states refused to respond to questions from the HRC, or declined to appear at these public hearings, presumably because even the more totalitarian regimes were reluctant to seem to be snubbing highly publicized issues of human rights. The Committee has been reluctant to give undue publicity to its reports. For example, it has been ambivalent about the presence of specialized agencies (e.g. the ILO and UNESCO) at these hearings and of NGOs (e.g. Amnesty International and the International Commission of Jurists), which push and pull in diﬀerent directions (Harris, 1991). To the extent that reformist compromises such as these are based on the philosophy of Woodrow Wilson a hundred years ago, we might suppose that the “intervention” of representatives from a wider array of world society might have the stern Presbyterian’s posthumous approval. Even a few decades ago, it was not at all obvious that the turn of the 20th century would witness an opening up of the privileged and self-sustaining diplomatic elite, which, after all, can hardly be said to be the reﬂection of any kind of diplomatic process. By all present accounts, it seems we shall have to wait a bit longer before we can see experiments in something more democratic, such as a World People’s Assembly (Johnston, Macdonald, and Morris, 1973). The organization of such a mechanism was suggested as a way of bringing a degree of “democracy dialogues” with the United Nations.

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In a few pages, it is not possible to do the scantiest justice to a ﬁeld that is now so vast. The international law of human rights is frequently invoked, and often applied, in the decisions of scores of courts, tribunals and bodies at every level: universal, regional and national. Some of these adjudicative bodies are extremely active, especially the European Court of Human Rights of the Council of Europe, which holds session every month but one in Strasburg. The “Strasburg law” of human rights is so scrupulous and professional, as a development of “jurists’ law”, that many lawyers would treat it as a separate domain, and yet linked potentially as the basis of a future merger of global and regional systems of international law. Some further comments might be oﬀered by focusing on a newer instrument of considerable signiﬁcance in the ﬁeld of human rights. In 1989 it was agreed that children need special protection, because people under 18 years need special care that adults do not. The Convention on the Rights of the Child itemizes not only all the basic human rights of children, as human beings, but also provides four “core” principles speciﬁcally for children: non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child. In the view of most lawyers, the Convention on the Rights of the Child is the ﬁrst legally binding instrument to incorporate the full range of human rights – civil, cultural, economic, political and social rights. As a formal instrument, fully consistent with the Vienna Convention on the Law of Treaties, states become parties and acquire obligations through signature and ratiﬁcation (or accession). By becoming parties, they become accountable before the international community. Since the 1989 Convention is comprehensive, some of its provisions clash with tribal or other customs in many cultures around the world. In some traditional societies, the general idea that parental control over children should be overridden by bureaucrats is simply unacceptable, especially perhaps in rural communities. To many Western readers, many of these traditional practices, such as the forced genital mutilation of young girls is barbaric and the use of young children on the battleﬁeld and in dangerous industrial workplaces is almost equally reprehensible. On matters such as these, we are all twisted by the agony between the nobility of universal values, the special legitimacy of cultural tradition, and the uneasy ethics of cross-cultural intervention. In a section on international human rights, however abbreviated, it would be ungracious not to pay tribute to the careful counseling provided by UNICEF (The United Nations Children’s Fund) throughout the Convention’s protracted labor pains. UNICEF is one of the most respected of international organizations. Originally it was set up to help children who were victims of “international emergencies”, but latterly provided basic needs to communities. Staﬀed mainly by volunteers who raised donations at home, administrative costs were kept down to a remarkably low level, perhaps the lowest among fund-raising agencies of this kind. Their low visibility did not prevent them from getting engaged in disputes with WHO, FAO and other professional bureaucracies over the eﬃcacy of village community projects on such matters as neighborhood wells, immunization, and education policy (Black, 1986). In recent years UNICEF, for better or worse, has become more like a normal specialized

Contemporary World Order in Profile

agency of the United Nations with more secure access to central and integrated funding sources in New York. Given the width of the concept of “benevolent society” – wider even than that of “human rights” – it has become diﬃcult for lawyers to separate that expanding domain from the almost equally explosive sub-discipline known as “international criminal law”. Should oﬀences such as “genocide” and “war crimes” go unpunished, in civil war and other special certain circumstances, for the sake of peace and reconciliation, or subject to international prosecution in the interest of justice? Contemporary Issues and Agendas This is just one of several fundamental issues that have become attached to the theoretical agenda in the ﬁeld of, but not yet the arena, of international law. Like international environmental law and the international law of human rights, international criminal law has become a cross-disciplinary ﬁeld of inquiry that brings together specialists in philosophy, political science, history, and other disciplines and sub-disciplines. Two or three generations ago, a major academic conference of international lawyers such as the annual meeting of the American Society of International Law would have consisted of legal (that is, of “strictly legal”) topics. Analysis and commentary would have focused on matters perceived to be seeking out the “core” of the legal discipline, perhaps as much as two-thirds of the program. Today such a program is more likely to be equally divided between “centripetal” topics and “centrifugal” issues (that is, issues that cannot be fully explored except at the borders with other disciplines). It is unlikely that peace-versus-justice and similar ethical issues could have arisen in the international law community as recently as a hundred years ago. Even today most international lawyers are uncomfortable with philosophical issues that cannot be argued out within the traditional framework of legal values. The “classical” subdiscipline of public international law, as it was generally designated in the late 19th century, was conceived as a science whose norms would eventually “govern” the international community through an evolving system of “world law”. To most international jurists of the early 20th century, building a system of “world law” would always have to contend with the political institutions of the world. The experience of the League and the United Nations conﬁrmed the necessity for a structure in which politicians would prevail whenever political or ethical controversies came to the fore. By the time the Permanent Court of Arbitration (PCA) was conceived in 1900, after a century of occasional uses of ad hoc international arbitration, the “case-law” or “jurisprudence” of international law seemed suﬃciently extensive and mature to sustain a permanent system of international adjudication. To most lawyers in the West at least, the chief proof of a legal system’s eﬃcacy is its suitability and comprehensiveness as the normative foundation for a permanent, independent judiciary, whose rulings would be binding on all. However, the litigational ideal for the world community as a whole has proved to be elusive. The norms that make up the substance of an international tribunal’s decisions must be well established, over a long testing time, to provide a suﬃcient degree

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of consistency. Those of the “legal culture” that the tribunal serves should feel they are represented by at least some of the judges. The PCA system was set up to guarantee that at least ad hoc arbitration could proceed on an equitable basis; but when the decision was made after the First World War to establish a permanent standing court, the Permanent Court of International Justice (PCIJ), a much bolder challenge was set up for the international community. At the formation of the United Nations, the International Court of Justice (ICJ) replaced the PCIJ as the oﬃcial “World Court”. Despite the growth of the UN system, the tribunal designated as “the principal judicial organ of the United Nations” under Article 92 of the UN Charter, has retained most of the characteristics of the PCIJ, and its site at the famous Peace Palace at The Hague. Judges since then have been elected to the ICJ in accordance with a complicated formula involving both the Security Council and the General Assembly, the two principal political bodies of the United Nations. As most concede, the elective process is characterized by a lot of “political inﬁghting” (Harris, 1991). Over the years, care has been taken to guarantee a fair distribution: nationals of ﬁve western states, three African states (one Francophonic civil law, one Anglophonic common law, and one Arab); three Asian states, two East European states, and two Latin American states. It is also accepted, at the realists’ urging, that there should be a national of each of the ﬁve permanent members of the Security Council. The composition of the ICJ has been criticized on various grounds, including its conspicuous Westernization, but proposals for change to the Court have suﬀered the fate of all other calls for revision of the UN system. It was obvious from the beginning that a court of ﬁfteen judges could scarcely claim to be representative of most legal systems. By necessity it was recognized that most of the judges would have to be selected from the two major legal cultures: the civil law, which covered most of continental Europe and many countries beyond, and the common law, which originated in England over a thousand years ago but, mainly on the wings of the British Empire, had migrated to numerous dependent countries, sometimes in its original form, sometimes as a variant. As a result of imperialism, over a hundred countries around the world were governed, more or less directly, within the framework of one or other of the two great Western traditions of law, with lasting eﬀects on matters private as well as public. Perhaps nowhere is the imprint of Western civilization more distinct than in the realm of public international law. Understandably, one of the concerns about the future of international litigation is the remarkable inﬂuence achieved and maintained by the cultures of the West. At the negotiating table, it is possible for two – or more – parties to negotiate settlements or arrangements without much, if any, following of the West’s example. Experienced non-Western diplomats often characterize the professional diplomatic community as a surprisingly homogeneous cosmopolitan culture, beneﬁting from the input of many participant societies. There may be such a thing as “cultural style” in diplomacy, especially where only a few countries are at the table, but in international litigation, on the other hand, virtually all the judges comport themselves, both personally and professionally, in a Western, indeed European, manner.

Contemporary World Order in Profile

Yet it can be argued, culture apart, that it does more good than harm to the cause of “world law” to have a world court that operates in a professionally homogeneous spirit. At the national level, most “supreme courts” bring consistency to the judicial process by possessing the power to bind the lower courts, including the appellate courts immediately beneath them, but in the international legal system there is no such tradition of stare decisis. Given that deﬁciency, consistency in the rulings of the PCIJ’s successor, the International Court of Justice (ICJ), is all the more desirable, for the usual reasons of certainty and predictability. Much more troublesome, however, from the perspective of the litigational model of international law, is the voluntary nature of most of the international judicial system. The volume of judicial decisions is determined almost entirely by the number of states who agree to go to court. Admittedly the amount of international adjudication has risen over the last few decades, as the number of tribunals goes up along with the work-load of several. There is also some evidence that many non-Western countries have lost some of their cultural or political reluctance to submit their disputes with other states to an international tribunal. International litigation is almost always perceived to be a “last resort” strategy, resorted to only if it seems to be the only way of avoiding a serious deterioration in the relationship between the parties, where the chief cause of the deterioration can be boiled down to the kind of dispute that can be dealt with professionally by a court of law, by the disinterested application of the appropriate rules of international law. Generally, however, what prevails is the idea that a sovereign state has no obligation to go to court and sees itself as having more to gain by retaining a degree of control over the outcome by keeping the issue on the negotiating table. The work of international adjudication, despite its relatively short history, cannot be compressed into a few succinct pages. For most of the 20th century, ICJ was the only standing permanent court available to settle inter-state disputes. Since there is no limit on the number of judges who may choose to write their own – personal or dissenting – judgments, many of the Court’s decisions have run to excess, straining the law student’s devotion to the doctrine of the case and adding to the length of professional case reviews. Since the latter part of the 20th century, a number of new international courts have been established, some regional in origin, others limited to specialized topics, some limited in both ways. As a result, there is now a very substantial volume of international judicial decisions on the shelves of law libraries around the world. Some of these new adjudicative institutions, both ad hoc and permanent, are limited to the sector of international criminal law. These are the boldest of recent judicial experiments. The chief aim of these tribunals was, and is, to bring to justice those responsible for the most horriﬁc of war crimes, including genocide and crimes against humanity. The Nuremberg and Tokyo War Crimes Trials (1946-1948) laid down principles that would govern such oﬀences, even retroactively, to cover the crimes of the fascist war leaders of Germany and Japan after the Second World War. As pointed out recently by The Economist (March 11th, 2006), most of the world’s worst tyrants have avoided being brought to court to face the agents of justice. Stalin, Mao, and Pol Pot died in their own beds, and Hitler took his own life in a bunker. Numerous

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others of lesser notoriety lived out their lives in exile, and still do. Until very recently international law has oﬀered no threat of punishment. By the end of the 20th century, however, the assurance of impunity for the most dangerous and sadistic rulers and generals was diminishing. As a number of new ad hoc international criminal law courts became available, with the consent of the neighboring states, the prospect of punishing serious tyrants like Hissene Habre (Chad), Charles Taylor (Sierra Leone), and Augusto Pinochet (Chile) became more realistic, after their status as chief of state was declared not to be a bar against legal proceedings. The same claim of immunity by Slobodan Milosevic, the former president of Serbia, failed before his trial was abandoned when he died, apparently by his own hand, before all the evidence against him could be called in. Generals responsible for speciﬁc massacres, such as Ratko Mladic, who ordered the Srebrenica massacre, could now expect to be hunted down by the International Criminal Court for ExYugoslavia (ICTY) set up by the United Nations in 1993. It remains to be discovered how much the international community is capable of repairing an imploded nation such as Yugoslavia, a process that began with the death of President Josip Broz Tito as early as 1980. Three years earlier an alternative approach was adopted in Chile: a “truth and reconciliation” commission designed to oﬀer amnesty in return for truthful evidence in the hope of creating a mood of forgiveness in countries still split by hatred. The most famous initiative along these lines was advanced by Archbishop Desmond Tutu of South Africa, but similar eﬀorts to pursue peace rather than justice were made in over 17 other countries between 1995 and 2006. Failures of the national justice system in these countries led not only to these unproven indigenous experiments at home, but also to the establishment of the world’s ﬁrst permanent International Criminal Court (ICC) at The Hague. The ﬁrst person to be tried by this tribunal might have been Iraq’s Saddam Hussein, perhaps the world’s most notorious tyrant, but supposedly because they were determined to exact the death sentence, which is not available from the ICC, the Iraqis set up their own High Tribunal in Teheran. The ethical issue between peace and justice poses a choice between principles, neither of which deserves to be placed in a secondary position. Perhaps the best to hope for would be success on both fronts, although the choice has to be made in context, as opportunity oﬀers. The eﬀorts to try Milosevic, Saddam Hussein and other former leaders have put on display the great political, cultural and technical diﬃculties that complicate such prosecutions, whether by ad hoc tribunals or the permanent International Criminal Court, established in 2002. It can be argued that only the highest evidentiary and procedural standards are acceptable in these early, controversial cases, where political sentiments run so strong. The acquisition of wholly reliable testimony is frustratingly diﬃcult, apart from other considerations. The families and friends of the victims may be excused for wondering whether the cost and eﬀort are justiﬁed. In civil war and similar situations, emotions can be raw and overwhelming. The worst cases of ethic barbarism often involve many, normal, peaceful, people on both sides, who were driven by terror into a collective madness of slaughter. Often it is possible to identify, capture and punish the leaders, but where to draw the line? In

Contemporary World Order in Profile

many of these cases, it has been decided, on spiritual or ethical premises, to avoid a massive mandatory process of criminal punishment and proceed instead to a voluntary “truth and reconciliation” program which, it is hoped, will be more likely to bring peace – a degree of normality – to such troubled societies. No one agreed-upon procedure has been set either for punitive or reconciliatory purposes. In the case of criminal proceedings, the role of the international law community has varied, without any clear evidence of the most successful. In some of these cases, such as the Saddam Hussein trial, the presence of foreign judges (or other lawyers) has been ruled out: in others, foreign contribution has been minimal, temporary or advisory. In a few, the values at stake have been considered so fundamental and universal, that the process has been taken over by external specialists, whose participation is believed to guarantee the highest possible level of professional objectivity and an equitable outcome. The most serious deﬁciency of the ICC is its availability to almost anyone who wishes to use this penal process for blatantly political purposes. It was decided by the US State Department that becoming a member of the ICC was not in the nation’s interest: it was not only possible, but probable, that eﬀorts would be made, sooner or later, to bring leaders of the United States for prosecution by this tribunal for alleged war crimes or “crimes against peace”, such as the US invasion in Iraq. The United States is not alone among nations in being a potential target for international prosecution in highly provocative circumstances such as these, but it is by far the most likely victim in the misuse of international criminal justice. In the view of this writer, among many other jurists, one might hesitate to encourage an innovation of this kind, and question the eﬀect it might have on the integrity of this new process of international criminal law. Working on a common jurisprudence through decisions of the World Court – or a growing number of international tribunals – is one way of envisaging an eventual single system of a “world law”. It is bound to be an extraordinarily slow process, perhaps the slowest road to legal uniformity that we can imagine. Yet it is a road that has been travelled by technicians for over a century. In a book of this kind, written for the general reader, the value of system merger is unlikely to be conveyed as a dramatic source of “world order”. As noted earlier, the idea of codiﬁcation was seen as a conspicuous, and certainly direct, method of expediting the movement to a global system of law through the 19th century. Many jurists looked upon diﬀerences among legal systems as an unnecessary encumbrance. Most judicial concern at that time focussed on disparities between common law and civil law principles and procedures. Early in the 20th century organizations such as the Institut du Droit International, the International Law Association, and various international comparative law associations brought together jurists with diﬀerent specializations, each with a diﬀerent perspective on the need for codiﬁcation, uniﬁcation, and “harmonization”. Some of the highly specialized work of this kind has tended to focus on private law matters, or on matters straddling the line between private and public (such as divorce, extradition). Matters of codiﬁcation and uniﬁcation have an older history, but the newest of these eﬀorts to build a system of “world law” came mostly from continental Europe, where lawyers were

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faced with the need to reconcile diﬀerences among the systems represented by the European Union and the Council of Europe. The need for merger of legal systems, especially between the civil law and common law system was accepted, not without reservations, as part of the larger enterprise of regional integration. By the end of the 20th century, both legal “integration” and “harmonization” have gone so far, at such a sophisticated level, that virtually a new international system was emerging to challenge the more general, potentially universal, system of international law as the leading candidate for primacy. Given the growing split between the European and American culture – a split that must be acknowledged, but not exaggerated – great eﬀorts will be needed to reduce the discrepancies. Often, especially in the economic sphere of law, it is United States diplomacy that seems to win most of the technical battles (Johnston and Ferguson, 2000). To many lawyers, “globalization” is perceived as an eﬀort to establish “market values” throughout the world, including the American versions of corporate and investment law. Who is gaining, and who is losing, this historical battle in the shaping of world law, depends very much on one’s “angle of perception”. One of the more benevolent features of international society, especially through the last quarter of the 20th century, has been the capacity and willingness of the more aﬄuent countries to assist in the maintenance of societies with the poorest prospect of economic, social and educational development. Sometimes the assistance is given on a bilateral basis, sometimes through an international organization. Most of these “disadvantaged” societies have been the beneﬁciaries of substantial international programs or projects of one kind or another, which can rise to the level of being the principal source of their meagre wealth. The smallest and poorest of them have survived through the indigenous resources of a simple rural or coastal heritage, sometimes exploited further as a colonial possession. For many years, the poorest of the poor have been given a special status on UN revenue or cost-sharing occasions. For example, at conferences designed to redistribute resources, such as the Third UN Conference on the Law of the Sea (1967-1982), priority was given to “small, developing island states” and the “geographically disadvantaged” (that is, those possessing no sea-coast at all), at the Third UN Conference on the Law of the Sea. Usually, however, their poverty is so chronic that their economic status remains at the lowest of the UN rankings, year in, year out. Many of these unfortunate non-viable countries remain dependent for their survival on the international community. For them the legal principle of state autonomy is a delusion. Needless to say, the chronically dependent territories can be classiﬁed in various non-economic, as well as economic, ways. For international lawyers, the possession or non-possession of sovereign status is crucial because the four “classical” attributes of statehood (possession of contiguous territory: of a more or less permanent, settled population; of a centralized system of government; and of a traditional habit of obedience by most of that population to the centralized authority) were generally felt suﬃcient to mark out the state with the “incidents” of sovereignty to entitle it to the beneﬁts of statehood: access to the treaty-making system, to membership of most international organizations, and to participation in the new families

Contemporary World Order in Profile

of international regimes. Yet some of those that seem to pass these old tests still ﬁnd themselves on the “outside” of the system. Among the most tragic victims of the classical inter-state system have been the aboriginal peoples of the Americas, Australia and New Zealand. Despite the widespread public sympathy for them, their lack of most of the formal attributes of classical statehood in the late 19th century made them victims of legal deﬁnition – perhaps the most formidable of all forms of tyranny! As we have seen in Chapter Eight, these were special victims of colonialism. Although their numbers were often signiﬁcant, their style of living was scattered over immense distances of land. Only the aboriginal peoples of the Spanish Americas were close enough together to undertake the building of a great system of cities. When the conquistadors arrived, in the 1600’s, it was at a time, as events proved, when conquest was a surprisingly attainable objective. Almost all the advantages favored the Spanish. Apart from the deﬁnitional diﬃculty, which in theory could be overcome by a massive show of state consent, there are numerous practical obstacles that would have to be overcome in order to bring the indigenous peoples as a whole into the system through full membership as “subjects” of public international law. As shown in Chapter Eight, their circumstances since conquest have varied enormously. In Mexico and many countries to the south there has been a huge social transformation that has, in many places, broken up traditional residential patterns. In some of these cases, intermarriage has blurred the lines between the indigenous and settler communities. In other cases, traditional lifestyles have been maintained in mountainous and other inaccessible locations. In many countries, on the other hand, citizens of full or partial indigenous descent have become fully integrated into the larger society, often with prominent positions in the professions, in government service, in sport and culture, and in the politics of the country as a whole. In some Latin American counties, barely 10 of the general population today can be registered as citizens with indigenous blood in their vein. In Australia, Canada, New Zealand, and the United States, the aboriginal peoples are extremely variable. In North America, for example, many do not live on reservations like most of their post-contact ancestors, or in areas traditionally occupied by them, preferring to live in typical neighborhoods favored by the non-indigenous majority (Wolfson, 1988). Although there are hundreds of tribes, peoples or bands, living at least a quasi-traditional life, many of them are quite tiny, largely dependent on public funds. Most live in rural settings, but a few lay claim to urban areas, including parts of major cities – and even parts of university campuses. Such a scattered phenomenon does not lend itself to tidy, uniform solution within the framework of public international law. To be fair, at the world community level none of the “host states” has ever renounced its special responsibilities for its aboriginal peoples (“First Nations” in Canada), but since the ﬁnal third of the 20th century, numerous eﬀorts have been made to engage the United Nations and other organizations in the advancement of their cause. Over the years the aboriginal peoples have organized their own representative organs, such as the International Circumpolar Conference (ICC) for the native peoples of the most northerly regions. In these cases and others, it is generally accepted that no international arrangements for the

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welfare of the Northern indigenous populations can be negotiated without the full collaboration of their representatives. It might be appropriate to designate such arrangements as “partnership arrangements”. In the case of the Arctic, for example, we could imagine a round of multilateral diplomacy – between the “Arctic states” and the ICC – that would result in an outcome of shared costs and beneﬁts. Founded in 1973, several Inuit-speaking non-governmental organizations agreed to start a series of regular meetings. Sharing a common culture and a common land along the Arctic coast of Siberia, Alaska, Canada and Greenland, these representatives re-convened in 1977, conceded they were “not nation-states”, but “peoples” who regarded themselves as “nations”. Statistics is the most “operational” branch of mathematics. We cannot plan systematically; much less project the future, without leaning heavily on statistics. Yet we have all discovered the treachery of ﬁgures. Most conversational diﬀerences that fall into disputes probably do so because of a person’s over-dependency on a statistical proposition, read or overheard elsewhere. Indeed many interpersonal disputes are bound in a chain of “statistical facts”. Often the most argumentative of our colleagues or acquaintances are those most vulnerable to “statistical credulity”. Although the concept of mathematical statistics is quite new – pioneered by Pierre S. Laplace (1749-1827) – its application to public policy was an even later phenomenon. On becoming First Consul in 1799, Napoleon chose Laplace as his Minister of the Interior, but after six weeks he was dismissed for “introducing the spirit of inﬁnitesimals into administration”. The First Consul’s judgment on this matter proved questionable. Shortly thereafter, in an age of strategic sophistication, it became understood that precision was important in the estimation of a population’s characteristics – one’s own and those of one’s enemies. Increasingly, statistical analysis became a useful technique in the evaluation of mass data now extractable from public records. Not least for those immersed in the bureaucratic detail of Realpolitik, it was recognized to be valuable to have a factual basis for proposed policies in matters framed around probabilities, rather than actualities. One of the most lively guessing games for 19th and 20th century strategic analysts was the estimation of population growth or decline. Some, ﬁxing on the size and cost of armies, felt that numbers were a source of strength. Others, more concerned about the size of the manufacturing sector and the number of mouths to feed, interpreted population statistical projections as warnings about the gap opening up between economic supply and demand. Over a quarter-century ago, there was a good deal of alarm raised by the prospect of enormous national populations, mostly concentrated in the poorer regions of the world, such as China and India. However, the newest projections suggest an entirely diﬀerent world. To virtually everyone’s surprise, the central government of the People’s Republic of China has had considerable success since the 1980’s in persuading – or coercing – the urban middle classes, especially those of the huge and prosperous cities of the New China, to limit their family to one child. Even in the rural hinterland of the Old China, the prospect of moderate wealth within the family has altered the landscape of personal and family aspirations. Back in the 1980’s, it seemed to some of us that the overpopulation and extreme impoverishment of China, India and many other countries would probably result in

Contemporary World Order in Profile

claims to the rich, “empty space” countries (Macdonald, Morris and Johnston, 1973). It seemed only a matter of time before there emerged a moral consensus on the need for a new world order priority: creating a more equitable distribution of population throughout our overcrowded and underendowed planet. Some idealists saw these “wealthy”, “empty space” countries as legitimate targets. Admittedly, it was a solution unlikely to be popular in the United States, Australia, Canada, the United Kingdom, Germany, France, Sweden, the Netherlands, New Zealand, and other countries with robust immigration programs, and apparently space to open up new development regions in their less accessible areas. But cost-based commonsense favored rather an extension of existing regions where elaborate immigration facilities were already on the ground. Needless to say, this proved to be one of those numerous fundamental issues – the “right to space” – that could not be converted into a legal matter within the expanding domain of the expanding international law of human rights. Virtually all nations acknowledged that the “right to space” would have to remain a “political question”. In any case, we had been misled by the population statisticians. They had underestimated the reduction of China’s population – which will soon fall into second place behind India’s – just as all economists had underestimated the rate of China’s economic growth, and indeed of India’s, and most political scientists had undercalculated both countries’ rise to political power. The reluctance of the international law community to incorporate the great world order issues of the day is presumably a reason for pessimism. As we wrote in 1973, at the top of our ﬂight into idealism, international law could be seen “as having reached a stage of ‘parametric stress’. Comparisons will be made with other disciplines which have encountered parametric stress when their fundamental concepts could no longer accommodate the dynamics of change inherent in the problems they purported to treat. Reference will be made, for example, to changes that overtook the fundamental concepts of astronomy after Copernicus or those of physics after Newton Rutherford and Einstein, or those of zoology after Darwin or anthropology after Leakey. In the case of international law, change in the discipline’s primary concepts will be seen as a necessary corollary of existing transformations taking place in the matter of value demands from sectors of discontent in international society. It will be demanded of international law, as of economics in the 1960’s and 1970’s, that it divest itself of its empty abstractions, and polemical debates will be waged over the relative utility of statist ﬁction.” “Yet optimists will be on hand, as always, to argue that all disciplines have emerged from parametric stress in greater strength and vitality. Despite the worldwide passions and disorders of the previous decades, there will be a continuing persistent hope that the processes of international law will provide a rational and humane response to the ordeals of the human condition.” (Macdonald, Morris and Johnston, 1973). Another truly fundamental world order issue may have to face the same test of political realism: that it, the problem how to “manage” the Arctic region. In Chapter One we noted the uniqueness of the challenge that the polar regions pose to the international law community. Very few international lawyers in the early 20th century would have challenged the legal status quo. Even today few states seem ready to dispute

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the “Arctic Five’s” sovereignty over their vast land masses in and around the Arctic Ocean, despite recent skirmishing between Canada and Denmark over the status of Hans Island. This should evoke little surprise, since most territorial land claims with acquisitions down the ages have been motivated by the prospect of material wealth or the mere aggrandizement of the realm. Neither of these motivations could have held much appeal in a region whose history seems so deeply marked with distant and often tragic hardships. In the ﬁrst half of the 20th century, vessels in vessel technology were just beginning to oﬀer a glimpse of a more eventful future for the Arctic Ocean. However, the twogenerational Cold War (1946-1990) had the eﬀect of paralyzing almost any eﬀort to achieve international cooperation among the ﬁve littoral states adjacent to the Arctic Ocean: Canada; Russia; Denmark (for Greenland); Norway; and the United States. Almost all Cold War activities in the Arctic, except for the Polar Bear convention, were for military and strategic purposes. Since the end of the Soviet period of Arctic aﬀairs, the Arctic has been “re-discovered” by the international community. The century ended with the old assumption that the international aﬀairs of the region would have to be conducted by the “Arctic Five”, since the non-state interests and concerns, now heightened by new industrial opportunities, would have to be constrained by the strategic considerations of the sovereignty-holders. It is diﬃcult to predict which international organization and coalition will attempt to put the polar region back on the world agenda in the coming years. The Antarctic in 1959 attracted a coalition of somewhat like-minded polar states. What they had in common, very largely, was an idealistic leap into a new, collaborative world, where scientist, environmentalists, anti-disarmers, anti-nuclearists, paciﬁsts and other kinds of ethicists found one another at one point where all the “new claimants” could press together their diﬀerent, but compatible, ideals for a multi-functional transnational society. Early in the 20th century, several states had made territorial claims to portions of the Antarctic landmass. Many of these claimants conceded the weakness, in this situation, of the old legal criteria for the acquisition of territory; distance, contiguity, history, administration and so on. Especially by the counter-claimants it was argued that legalistic claims to such a distant, totally uninhabitable place smacked of artiﬁciality. It was generally agreed, not only among non-lawyers, that it would have been an anomaly, in the early stage of the UN’s decolonization process, to have insisted on the propriety of purely legal criteria for no other apparent reason than consistency with the past. Admittedly, there were no humans in permanent habitation in the Antarctic who were in danger of becoming the next generation of victims of colonialism, or in a realistic position of acquiring any kind of dominion over the penguins! It may be several decades yet before it is fully sensible to propose a multi-functional, transnational regime of some kind for the Arctic. The scientiﬁc evidence of climate change is not yet fully convincing, but the majority opinion is that the phenomenon of global warning is certain to become a major world problem ﬁrst in the Arctic, and that the occurrence of sea ice melting could have a devastating eﬀect, on a scale not previously experienced within the range of human history.

Contemporary World Order in Profile

Sooner or later, it seems certain that the Arctic Ocean will lose a huge amount of melting ice, converting great tracts of land to permanent terrestrial status. However far oﬀ in the 21st century, the Arctic Five will have to undergo huge adaptations of policies and practices in virtually all sectors. What kind of adaptations are likely to be unavailable? What role is there for the international law community? How many scenarios are there for the future Arctic? First, it is likely that most who debate the matter will agree, at least initially, that the “Arctic Five” should continue to have a primary role in the governance of the North. Yet the ICC and those who support their indigent cause may argue that arrangements between the “Five” and the ICC should be based on something closer to the equality of partnership than the present non-equal status between the states and the NGO’s of the North. Moreover, there are many scientists who would prefer a future Arctic regime where the world scientiﬁc community would have at least a near-equal partnership along the lines of the Antarctic legal regime, which has evolved eﬀectively as a depoliticized entity devoted entirely to the polar region as a global scientiﬁc ”research laboratory”. As the severity of the climate change problems change in the near future, we can expect a strong scientiﬁc case for depoliticizing work of such universal signiﬁcance, in which the impartiality of the science community would produce the greatest beneﬁts. The diﬀerences between the two polar regions as objects of acquisition are conspicuous. The Arctic is after all – as we used to explain – oceanic, albeit a shallow sea that has been likened to he Mediterranean. Conversion into an extensive, conceivably permanent, unmelting patch of land, possibly close to the Pole itself, might occur before the end of the 21st century as a result of a more or less steady cataclysmic change of climate patterns through a period of continuous warming. Long before the ﬁnal outcome is known, ecologists and certain other kinds of biologists will have given incontrovertible evidence of decline and eventual extinction of hundreds of species. All Arctic economies, traditional and modern, will bear the mark of ruin. The environmentalists of our own time have shown considerable success in arousing global action in contexts both related and unrelated to climate change, Kyoto included. It is easy to believe that a scenario of radical change in the Arctic would have a leadership contribution from international environmental institutions like the World Conservation Union (IUCN), but it is not easy to guess at the composition of the world community coalition that would have to be put together. The adaptation strategy would have to have political, ﬁnancial, economic, technological, inter-cultural (UNESCO), and other components. Indeed it is hard to envisage anything less than a full-scale United Nations commitment. Would, or should, the global response to re-making the international society and economy of the North include the international law community? If so, it will have to step out of its customary role as provider of the agreed-upon normative links with the past. International problem-solving at this order of diﬃculty will require sophisticated and innovative planning rather than a reminder of the rules of the game. For millions of people in the Arctic North – and perhaps as many beyond in the semiArctic countries such as Iceland, Finland and Sweden – little would be accomplished

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by forcing the solution out of an old system of norms and criteria regarding the acquisition of territory, expressing the amoral values of what we judge to be the less benevolent world of the 18th and 19th century. Moreover, by the time of the Falklands (or Malvinas) War (1983), the majority of the international law community did not look favorably on the use of the these old classical criteria to determine the sovereignty dispute between Argentina and the United Kingdom. Given the number of British residents on the Malvinas, it seemed more important to give precedence to the search for an outcome based on modern justice. Unfortunately, the conﬂict led to war, and to unnecessary death. It is extraordinarily diﬃcult to foresee accurately the ﬁrst fall-out in the Northern latitudes, and even more so to follow any single, scientiﬁcally credible, course of development after the mid-21st century. Specialists in the law of the sea can quarrel over Canada-US “legal status” issues in the Northwest Passage: are the Canadians right in contending that these matters fall entirely – or almost entirely – within the regime of internal waters, which was re-clariﬁed at the Third UN Conference on the Law of the Sea in the 1970’s, or are the Americans correct in maintaining that the Passage qualiﬁes as an “international strait” (a “strait used for international navigation” as deﬁned at the same conference) ( Pharand, 1988)? These matters can be agued out among lawyers, in purely legal terms, but as everyone knows, there are questions that need to be resolved within the merchant shipping community, including the cargo owners and the marine insurance industry, about the acceptability of some kind of “consent regime”, which would give Canada sole “management” authority is governing all transit through the Passage. Sharpening the commercial transit issues is the increasingly predominant issue of defense arrangements for the Passage and adjacent waters, at a time of imperilment when terrorist tactics can be used against anyone without provocation. If these military concerns keep rising, one can see a role, perhaps a controlling role, for NATO and possibly other combined military forces.

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Bibliography Weider, Ben, and Sten Forshufrud. Assassination at St. Helena Revisited. New York: John Wiley & Sons, Inc., 1978, 1995. Weil, Prosper. “Towards Relative Normativity in International Law?” 77 American Journal of International Law 413 (1984). Weiler, J.H.H., and Andreas L. Paulus. “The Structure of Change in International Law, or, Is There a Hierarchy of Norms in International Law?” 8 European Journal of International Law 545 (1997). Weis, P. Nationality and Statelessness in International Law. 2nd ed. Alphen aan den Rijn: Sijthoﬀ and Noordhoﬀ, 1979. Weiss, Harvey, and T. Cuyler Young, Jr. “The Merchants of Susa: Godin V and Plateau-Lowland Relations in the Late Fourth Millennium.” 13 Iran 1 (1975). Weiss, Thomas G. International Bureaucracy: An Analysis of the Operation of Functional and Global International Secretariats. Lexington, Mass.: Lexington Books, 1975. Wellens, Karel (ed). Resolutions and Statements of the United Nations Security Council (19462000). A Thematic Guide. The Hague: Kluwer Law International, 2001. Wellens, Karel (ed.). International Law and Practice. The Hague: Kluwer Law International, 1998. Wells, Peter. The American War of Independence. London: University of London Press, 1967. Werner, Stephen. The Comic Philosophes: Montesquieu, Voltaire, Diderot, Sade. Birmingham, Ala.: Summa Publications, Inc., 2002. Wetter, J. Gillis. The International Arbitral Process: Public and Private. Vol I. Dobbs Ferry, N.Y.: Oceana Publications, 1979. Wheaton, Henry. History of the Law of Nations in Europe and America. New York: Garland Publishers, 1845,1973. Wheaton, Henry. History of the Law of Nations in Europe and America, From the Earliest Times to the Treaty of Washington, 1842. New York: Gould, Banks, 1845. Wheaton, Henry. The Elements of International Law, with a Sketch of the History of the Science. Philadelphia: Corey, Lea and Blanchard, 1836. (Reprinted by Da Caso Press in 1972). White, Frederick. “Cook the Navigator.” In Captain Cook (ed. Badger, 1970). Whyte, Frederick. China and Foreign Powers: An Historical Review of their Relations. London: Oxford University Press, 1927. Wicken, William C. Mi’kmaq Treaties on Trial: History, Land, and Donald Marshall Junior. Toronto: University of Toronto Press, 2002. Wight, Martin. “An Anatomy of International Thought.” 13 Review of International Studies 221 (1987). Wigmore, John H. A Panorama of the World’s Legal Systems. 3 vols. St. Paul, Minn.: West Publishing Company, 1928. Wiktor, Christian L. (compil.). Multilateral Treaty Calendar, 1648-1995. The Hague: Kluwer Law International, 1998. Wiktor, Christian L. (ed). Unperfected Treaties of the United States of America, 1776-1976. 9 vols. Dobbs Ferry, N.Y.: Oceans Publications, 1976-94. Wiktor, Christian L. Multilateral Treaty Calendar, 1648-1995. 4th ed. London: George Allen and Unwin, 1982. Wildhaber, Luzius. “Sovereignty and International Law.” In The Structure and Process of International Law (eds. Macdonald and Johnston, 1983).

Bibliography Wildman, Edwin. The Founders of America in the Days of the Revolution. Freeport, N.Y.: Books for Libraries Press, 1924, 1968. Wilkins, David E. American Indian Politics and the American Political System. Lanham: Rowman and Littleﬁeld, 2002. Wilkinson, Clennell. William Dampier. London: The Bodley Head, 1929. Willemin, Georges, and Roger Heacock. The International Committee of the Red Cross. The Hague: Martinus Nijhoﬀ Publishers, 1984. Williams, Frederick W. Anson Burlingame and the First Chinese Mission to Foreign Powers. New York: Russell and Russell, 1972. Williams, Neville. Captains Outrageous: Seven Centuries of Piracy. London: Barrie and Rockliﬀ, 1961. Williams, Sharon A., and Andre L. C. de Mestral (eds.). An Introduction to International Law, Chieﬂy as Interpreted and Applied in Canada. Toronto: Butterworths, 1987. Williamson, James A. Sir John Hawkins; The Time and the Man. Oxford: Clarendon Press, 1927. Williamson, James A. The Tudor Age. 3rd ed. New York: David McKay Company, Inc., 1964. Wills, John E., Jr. “Ch’ing Relations with the Dutch, 1662-1690.” In The Chinese World Order (ed. Fairbank, 1968). Wills, John E., Jr. Pepper, Guns and Parleys: The Dutch East India Company and China, 16221681. Cambridge, Mass.: Harvard University Press, 1974. Wilson, Clifton E. Diplomatic Privileges and Immunities. Tucson, Ariz.: University of Arizona Press, 1967. Wilson, Geoﬀrey. The Old Telegraphs. London: Phillimore and Co., 1976. Wilson, George Grafton (ed.). Elements of International Law by Henry Wheaton (The literal reproduction of the 1866 edition by Richard Henry Dana Jr., in The Classical International Law (ed. James B. Scott), reprinted by Ocean Publications in 1964). Wilson, Ian. Before the Flood: Understanding the Biblical Flood Story as Recalling a Real-Life Event. London: Orion, 2001. Wilson, James. The Earth Shall Weep: A History of Native America. New York: Atlantic Monthly Press, 1999. Witteveen, Willem J. “Law’s Beginning.” In The Law’s Beginnings (ed. Feldbrugge, 2003). Wittfogel, Karl A. Oriental Despotism: A Comparative Study of Total Power. New Haven: Yale University Press, 1957. Wolﬀ, Hans J. Roman Law: An Historical Introduction. Norman: University of Oklahoma, 1951. Wood, Allen W. Kant’s Rational Theology. Ithaca, N. Y.: Cornell University Press, 1978. Wood, Neal. Cicero’s Social and Political Thought. Berkeley: University of California Press, 1988. Woodham-Smith, Cecil B. F. Florence Nightingale, 1820-1910. London: Constable, 1950. Woodruﬀ, Philip. The Men Who Ruled India, Vol. 1 (“The Founders”). London: Jonathan Cape, 1953. Woodside, Alexander B. Vietnam and the Chinese Model: A Comparative Study of Nguyen and Ch’ing Civil Government in the First Half of the Nineteenth Century. Cambridge, Mass.: Harvard University Press, 1971. Wooley, C. Leonard. The Sumerians. New York: W.W. Norton, 1965.

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Y Yang Lien-sheng. “Historical Notes on the Chinese World Order.” In The Chinese World Order (ed. Fairbank, 1968). Yoﬀee, Norman. “Law Courts and the Mediation of Social Conﬂict in Ancient Mesopotamia.” In Order, Legitimacy, and Wealth in Ancient States (eds. Richards and Van Buren, 2000). Yoo, John. “International Law and the War in Iraq.” 97 American Journal of International Law (2003). Young, Ernest A. “The Trouble with Global Constitutionalism.” 38 Texas International Law Journal 527 (2003). Yun Lee Too (ed.). Education in Greek and Roman Antiquity. Leiden: Brill, 2001.

Z Zabih, Sepehr. The Mossadegh Era: Roots of the Iranian Revolution. Chicago: Lake View Press, 1982. Zacher, Mark W. (with Brent A. Sutton). Governing Global Networks: International Regimes for Transportation and Communication. Cambridge: Cambridge University Press, 1996. Zayas, Alfred-Maurice de. “Territory, Discovery.” In Encyclopedia of Public International Law. Vol. 10 (ed. Bernhardt, 1987). Zeidan, Abdel-Latif M. The United Nations Emergency Force, 1956-1967. Stockholm: Almquist and Wiksell International, 1976. Zimmern, Helen. The Hansa Towns 2nd ed. London: T. Fisher Unwin, 1991.

Bibliography Ziskind, Jonathan R. Aspects of International Law in the Ancient Near East. Ann Arbor, Mich.: University Microﬁlms International, 1967, 1983. Zobel, Hiller B. The Boston Massacre. New York: W.W. Norton & Company, 1970.

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Douglas M. Johnston (1931 – 2006) List of Publications

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Books, Monographs, Reports and Conference Proceedings author, The International Law of the Fisheries: A Framework for Policy-oriented Inquiries (Yale Univ. Press, 1965) co-editor (with Hungdah Chiu), Agreements of the People’s Republic of China, 1949-1968: A Calendar (Harvard Univ. Press, 1968) co-author (with Edgar Gold), The Economic Zone in the Law of the Sea: Survey, Analysis and Appraisal of Current Trends, Occasional Paper No. 17, Law of the Sea Institute, Univ. of Rhode Island (1973) co-editor (with James Barros), The International Law of Pollution (The Free Press, 1974) co-editor (with R. St. J. Macdonald and Gerald Morris), Canadian Perspectives on International Law and Organization (Univ. of Toronto Press, 1974) co-author (with A. Paul Pross and Ian McDougall), Coastal Zone: Framework for Management in Atlantic Canada (Institute of Public Aﬀairs, Dalhousie University, 1975) co-author (with Shigeru Oda, Johan Holst, Ann Hollick and Michael Hardy), A New Regime for the Oceans (Trilateral Commission, Task Force on the Oceans, The Triangle Papers No. 9, 1975) editor, Marine Policy and the Coastal Community: Contemporary Studies in the Social Sciences (Croom, Helm, Ltd., 1976) author, Conservation and the New Law of the Sea, critique commissioned by International Union for the Conservation of Nature and Natural Resources (1978) co-editor (with R. St. J. Macdonald and Gerald Morris), The International Law and Policy of Human Welfare (Sijthoﬀ and Noordhoﬀ, 1978) author, Environmental Management in the South China Sea: Legal and Institutional Developments (East-West Center, 1981) editor, The Environmental Law of the Sea, (International Union for Conservation of Nature and Natural Resources, 1981) co-editor (with R. St. J. Macdonald) The Structure and Process of International Law: Modern Essays in Legal Philosophy, Doctrine and Theory (Martinus Nijhoﬀ, 1983)

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author, “Arctic Ocean Issues in the 1980s (Report on workshop co-sponsored by Law of the Sea Institute and Dalhousie Ocean Studies Programme) (Law of the Sea Institute, 1983) author, Canada and the New International Law of the Sea, study commissioned by the Royal Commission on Economic Unity and Regional Development (1984) author, The New Law of the Sea in Southeast Asia: Problems and Prospects of Implementation, SEAPOL Monograph Series No. 1, Institute of Asian Studies, Chulalongkorn University, 1986 co-editor (with Phillip M. Saunders), Ocean Boundary Making: Regional Issues and Developments (Croom, Helm, Ltd., 1988) author, The Theory and History of Ocean Boundary-Making (McGill-Queen’s University Press, 1988) co-author (with Mark J. Valencia), Paciﬁc Ocean Boundary Problems: Status and Prospects, (Martinus Nijhoﬀ Publishers, 1990) author, Consent and Commitment in the World Community: The Classiﬁcation and Analysis of International Instruments (Transnational Publishers, 1997) editor, SEAPOL Integrated Studies of the Gulf of Thailand: Selected Papers (Vol. I) (SEAPOL, 1998) co-editor (with Gerry Ferguson), Asia-Paciﬁc Legal Development (University of British Columbia Press, 1998) co-editor (with Ankana Sirivivatnanon), System Compliance in Ocean Management: Summary Proceedings and Selected Papers (SEAPOL, 1999) editor, SEAPOL Integrated Studies of the Gulf of Thailand: Selected Papers (Vol. II) (SEAPOL, 1999) co-editor (with Ankana Sirivivatnanon), SEAPOL Integrated Studies of the Gulf of Thailand (Vol. III) (SEAPOL, 2000) author, B.C. Oﬀshore Hydrocarbon Development: Issues and Prospects, report prepared for Maritime Awards Society of Canada (2000). co-editor (with Ankana Sirivivatnanon), Maritime Transit and Port State Control: Trends in System Compliance (SEAPOL, 2000) co-editor (with Linda Low), Singapore Inc: Public Policy Options in the Third Millennium (Asia Paciﬁc Press, 2001) editor and co-author, Report of the B.C. Oﬀshore Scientiﬁc Review Panel (B.C. Government, 2002) co-editor (with Ankana Sirivivatnanon), Ocean Governance and Sustainable Development in the Paciﬁc Region: Selected Papers, Commentaries and Comments (SEAPOL, 2002) author, Revisiting the Law of the Sea. Report prepared for Maritime Awards Society of Canada (2003) co-editor (with Ted L. McDorman and others), International Ocean Law: Materials and Commentaries (Carolina Academic Press, 2005) co-editor (with Ronald St. J. Macdonald), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Martinus Nijhoﬀ Publishers, 2005)

List of Publications

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author, The Historical Foundations of World Order: The Tower and the Arena (2008)

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Articles author, “The International Law of Fisheries: A Policy-Oriented Inquiry in Outline, Part I”, 1 Current Law and Social Problems 19 (1960) author, “The International Law of Fisheries: A Policy-Oriented Inquiry in Outline, Part II”, 3 Current Law and Social Problems 146 (1963) author, “Legalism and Realism in Insurance Law: Two Recent Canadian Decisions”, 3 Western Law Review 196 (1964) author, “Law, Technology and the Ocean”, 55 California Law Review 449 (1967) author, “New Uses of International Law in the North Paciﬁc”, 43 Washington Law Review 77 (1967) author, “Treaty Analysis and Communist China: Preliminary Observations” (1967), in Harvard Law School Studies in Chinese Law, No. 7, pp. 126-40 (reprinted from Proceedings of the American Society of International Law, 1967) author, “The Legal Theory of Fishery Organization”, in International Rules and Organization for the Sea (ed. Alexander) Proceedings of Third Annual Conference of the Law of the Sea Institute, pp. 312-19 (1970) author, “The Arctic Marine Environment: A Managerial Perspective”, in The United Nations and Ocean Management (ed. Alexander), Proceedings of Fifth Annual Conference of the Law of the Sea Institute, pp. 312-19 (1970) author, “Canada’s Arctic Marine Environment: Problems of Legal Protection”, 29 Behind the Headlines 1 (Canadian Institute of International Aﬀairs, 1970) author, “Marginal Diplomacy” in East Asia, 27, International Journal 469 (1971) author, “Radical Perceptions of International Law and Practice”, Proceedings of the American Society of International Law 163 (1972) author, “Recent Canadian Marine Legislation: An Historical Perspective”, in Canadian-U.S. Maritime Problems (eds. Alexander and Hawkins), Workshop of the Law of the Sea Institute, pp. 63-67 (1972) author, “Marine Pollution Control: Law, Science and Politics”, 28 International Journal 69 (1972) co-author (with R. St. J. Macdonald and Gerald Morris), “International Law and Society in the Year 2000”, 51 Canadian Bar Review 316 (1973) author, “Development, Environment and Marine Resources in the North Paciﬁc”, in Asia and the Western Paciﬁc (ed. Bull), pp. 232-61 (1974) author, “International Environmental Law: Recent Developments and Canadian Contributions”, in Canadian Perspectives on International Law and Organization, op cit., pp. 555-611 (1974) co-author (with R. St. J. Macdonald and Gerald Morris), “Canadian Approaches to International Law”, ibid., pp. 940-54 (1974) author, “The Regional Consequences of a Global Fisheries Convention”, in Fisheries Conﬂicts in the North Atlantic: Problems of Management and Jurisdiction (ed. Pontecorvo), pp. l 35-51 (1974)

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839

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author, “Chinese Treaty Behaviour: Experiments in Analysis”, in Advancing and Contending Approaches to the Study of Chinese Foreign Policy (ed. Dial), pp. 38596 (1974) author, “Some Treaty Law Aspects of a Future International Fishing Convention”, in The Future of International ﬁsheries Management (ed. Knight) pp. 10358 (1975) author, “The Options for LOS III: Appraisals and Proposal” in Law of the Sea: Caracas and Beyond (eds. Christy and others), Proceedings of Ninth Annual Conference of the Law of the Sea Institute, pp. 357-97 (1975) author, “The Economic Zone in North America: Scenarios and Options”, 3 Ocean Development and International Law 53 (1975) co-author (with R. St. J. Macdonald and Gerald Morris), “The New Lawyer in a Transnational World”, 25 University of Toronto Law Journal 343 (1975) author, “The New Equity in the Law of the Sea”, 31 International Journal 79 (1975) author, “Facts and Value in the Prevention and Control of Marine Pollution”, in Toward World Order and Human Dignity (eds. Reisman and Weston), pp. 53461 (1976) author, “Equity and Eﬃciency in Marine Law and Policy”, in Marine Policy and the Coastal Community, op cit., pp. 297-327 (1976) co-author (with Giulio Pontecorvo and Maurice Wilkinson), “Conditions for Effective Fisheries Management in the Northwest Atlantic”, Economic Impacts of a 200-mile Fishing Limit (ed. Anderson), pp. 51-103 (1977) author, “Coastal Zone Management in Canada: Purposes and Prospects”, 20 Canadian Public Administration 140 (1977) author, “Legal and Diplomatic Developments in the Northwest Atlantic Fisheries”, 4 Dalhousie Law Journal 37 (1977) “The Law of the Sea: Recent Trends in the Literature” (review article), 71 American Journal of International Law 539 (1977) author, “The Foundations of Justice in International Law”, in The International Law and Policy of Human Welfare, op cit., pp. 111-46 (1978) co-author (with R. St. J. Macdonald and Gerald Morris), “The International Law of Human Welfare: Concept, Experience and Priorities”, ibid., pp. 2-79 (1978) author, “Environment at the Seventh Session”, 4 Environmental Policy and Law 78 (1978) author, “Report on Law of the Sea Conference”, Business Japan, No. 9, p. 31 (1978) author, “The Scottish Tradition in International Law”, 16 Canadian Yearbook of International Law 3 (1978) author, “Deep Ocean Mining: Interim Arrangements and Alternative Outcomes”, in Alternatives in Deepsea Mining (eds. Allan and Craven), Law of the Sea Institute, pp. 57-74 (1979) author, “Impact of the New Law of the Sea on Japanese-Canadian Relations” in Canadian Perspectives on Economic Relations with Japan, (ed. Hay), The Institute for Research on Public Policy, pp. 95-127 (1980)

List of Publications

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co-author (with Edgar Gold), “Extended Jurisdiction: The Impact of UNCLOS III on Coastal State Practice”, Law of the Sea: State Practice in Zones of Special Jurisdiction, (ed. Clingan), Proceedings of Thirteenth Annual Conference of Law of the Sea Institute, pp. 3-56 (1982) co-author (with Edgar Gold), “Ship-Generated Marine Pollution: The Creator of Regulated Navigation”, ibid., pp. 156-97 (1982) co-author (with Peter Finkle), “Acid Precipitation in North America: the Case for Transboundary Co-operation”, 14 Vanderbilt Journal of Transnational Law 787 (1981) [reprinted by the Canadian Institute of Resources (1983)] author, “The Conduct of Oceanographic Research in the ‘80s”, Proceedings of Pacem in Maribus X pp. 37-44 (1981) author, “The Environmental Law of the Sea: Historical Development”, in The Environmental Law of the Sea, op cit., pp. 17-70 (1981) co-author (with Lawrence M. G. Onomoto), “Regional Approaches to the Protection and Conservation of the Marine Environment”, ibid., pp. 285-386 (1981) co-author (with Cyrille de Klemm and others), “The Environmental Law of the Sea: Conclusions and Recommendations”, ibid., pp. 387-419 (1981) author (with Norman G. Letalik), “Emerging Legislative Trends in Southeast Asia”, in Shipping, Energy and Environment: Southeast Asian a Perspectives for the Eighties (eds. Valencia and others), Proceedings of a workshop co-sponsored by Dalhousie Ocean Studies Programme and East-West Environment and Policy Institute (Dalhousie Ocean Studies Programme) pp. 231-50 (1982) author, “International Environmental Law: A Canadian Perspective on Recent Developments”, in Environmental Law in the 1980s (eds. Lucas and Finkle) Canadian Institute of Resources Law, pp. 67-82 (1982) author, “Maritime Boundary Delimitation and UNCLOS III” , in The New Law of the Sea in Southeast Asia: Development Eﬀects and Regional Approaches, op cit., pp. 139-45 (1983) co-author (with Ronald St. J. Macdonald) “International Legal Theory: New Frontiers of the Discipline”, in The Structure and Process of International Law, op cit., pp. 179-225 (1983) author, “The Heritage of Political Thought in International Law”, ibid., pp. 179225 (1983) author, “Systemic Environment Damage: The Challenge to International and Organization”, 12 Syracuse Journal on International Law 255 (1985) author, “The Common Heritage and the Law of the Sea”, in Proceedings of the Fourteenth Annual Conference of the Canadian Council on International Law, pp. 237-42 (1985) author, “Problems of Maritime Delimitation” in The Law of the Sea: Problems from the East Asian Perspective (eds. Park and Park), Law of the Sea Institute, pp. 83-89 (1987) co-author (with Edgar Gold), “Pollution Control in the Semi-Enclosed Seas of East Asia”, ibid., pp. 96-105 (1987) author, “Marine Pollution Agreements: Successes and Problems”, in Environmental Diplomacy (ed. Carroll), pp. (198-206 (1988)

841

842

Douglas M. Johnston

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author, “The Designing of a Transit Management System”, in Transit Management in the Northwest Passage: Problems and Prospects (eds., Lamson and VanderZwaag), pp. 279-308 (1988) co-author (with Phillip M. Saunders), “Introduction”, in Ocean Boundary Making: Regional Issues and Developments, op cit., pp. 1-16 (1988) co-author (with Phillip M. Saunders), “Ocean Boundary Issues and Developments in Regional Perspective”, ibid., pp. 313-49 (1988) author, “Functionalism in the Theory of International Law”, 26 Canadian Yearbook of International Law 3 (1988) author, “The Theoretical Bases of International Law: A Canadian Perspective”, in Canada and Europe: An Evolving Relationship, Proceedings of the Seventeenth Annual Conference of the Canadian Council on International Law, pp. 46-63 (1989) author, “The Driftnetting Problem in the Paciﬁc Ocean: Legal Considerations and Diplomatic Options”, 21 Ocean Development and International Law 5 (1990) author, “Science Policy and Ocean Management”, in The Challenge of Arctic Shipping; Sciencee, Environmental Assessment, and Human Values (eds. VanderZwaag and Lawson), pp. 211-19 (1990) author, “Is Coastal State Fishery Management Successful or Not?”, 22 Ocean Development and International Law 199 (1991) author, “Strains in the Theory of International Law” in Canada, Japan and International Law, Proceedings of the Nineteenth Annual Conference of the Canadian Council on International Law, pp. 196-208 (1991) author, “Theory, Consent and the Law of Treaties: A Cross-Disciplinary Perspective”, 12 Australian Year Book of International Law 109 (1992) author, “Vulnerable Coastal and Marine Areas: A Framework for the Planning of Environmental Security in the Ocean”, 24 Ocean Development and International Law 63 (1993) author, “Regional Fishery Arrangements: Options for Northeast Asia”, in Essays in Honour of WangTieya (ed. Macdonald), pp. 407-23 (1993) author, “International Fishery Disputes: A Challenge to Modern Diplomacy”, in Challenges to Fishery Policy and Diplomacy in Southeast Asia: Selected Papers (eds. Matics and McDorman), pp. 79-88 (1993) author, “Ocean Boundary Disputes and the risk of Conﬂict”, in Proceedings of colloquium on Maritime Security and Conﬂict Resolution (ed. Haydon), Dalhousie University, Centre for Foreign Policy Studies, pp. 229-35 (1993) author, “International Fishery Disputes: A Challenge to Modern Diplomacy”, in International Workshop on Challenges to Fishery Policy and Diplomacy in Southeast Asia: Selected Papers (eds. Matics and McDorman), pp. 79-83 (1993) co-author (with Mark J. Valencia), “The Russian Far East and the North Paciﬁc Region: Prospects for Cooperation in Fisheries”, in Russian Far East in Transition (ed. Valencia), pp. 122-43 (1994) author, “UNCED: The Coastal and Ocean Challenge” in Sustainable Development of Coastal and Marine Areas in Southeast Asia: Post-Rio Perspectives

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(eds. Koh and others), National University of Singapore and SEAPOL, pp. 1-52 (1995) author, “Protection of the Ocean Environment: Competing Views of the Implementation Process” in Proceedings of Fifth Meeting of the Ocean Governance Study Group (ed. Cicin-Sain), pp. 79-85 (1995) author, “Stresses and Mind-sets in Fishery Management”, 18 Dalhousie Law Journal 154 (1995) author, “UNCLOS III and UNCED: A Collision of Mindsets?” in Oceans Law and Policy in the Post-UNCED Era: Australian and Canadian Perspectives (eds. Kriwoken and others), pp. 11-24 (1996) co-author (with David L. VanderZwaag) “Towards Management for the Gulf of Thailand: Charting the Course of Cooperation”, in SEAPOL Integrated Studies of the Gulf of Thailand, Vol. I, op. cit., pp. 69-135 (1998) author, “Introduction: The Evolution of the Project” in Asia-Paciﬁc Legal Development, op. cit., pp. 3C14 (1998) author, “Environmental Law as ‘Sacred Text’: Western Values and Southeast Asian Prospects”, ibid., pp. 405-65 (1998) co-author, (with Gerry Ferguson), “The Convergence and Divergence of Legal Systems: Canadian and Asia-Paciﬁc Perspectives”, ibid., pp. 548-94 (1998) author, “The Concept of System Compliance” in System Compliance in Ocean Management: Summary Proceedings and Selected Papers, op. cit., pp. 102-15 (1999) author, “Fishery Diplomacy and Science and the Judicial Function”, 10 Yearbook of International Environmental Law 33 (1999) co-author (with David VanderZwaag), “The Ocean and International Environmental Law: Swimming, Sinking and Treading Water at the Millenniium” in Friedheim, R. ed., 43 Journal of Ocean and Coastal Management (2000) author, “Innocent Passage: Treaty Text and Subsequent State Practice”, in Maritime Transit and Port State Control: Trends in System Compliances, op cit., pp. 11-24 (2000) author, “Southeast Asia: Lessons Learned”, in Maritime Regime Building: Lessons Learned and Their Relevance for Northeast Asia (ed. Valencia), pp. 73-86 (2001) co-author (with Euston Quah), “Forest Fires and Environmental Haze in Southeast Asia: Using the ‘Stakeholder’ Approach to Assign Costs and Responsibilities”, 63 Journal of Environmental Management 181 (2001) author, “Public Policy Challenges and Opportunities: An Editorial Introduction”, in Singapore Inc., op cit., pp. 1-15 (2001) co-author (with Euston Quah) “Fires and Haze: Singapore’s Costs and Responsibilities”, ibid., pp. 157-77 (2001) author, “The Role of Land-locked Countries in Subregional Coastal Management” , in Resource Management and Transit to and from the Sea (ed. Glassner), pp. 54-65 (2002) author, “The Northwest Passage Re-visited”, 33 Ocean Development and International Law 145 (2002)

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Douglas M. Johnston

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author, “Marine Regionalism in Comparative Perspective” in Ocean Governance and Sustainable Development in the Paciﬁc Region, op cit, pp. 53-64 (2002) author, “RUNCLOS: The Case for and against Revision of the Law of the Sea Convention”, 109 Chuo Law Review 135 (2003) author, “The Future of the Arctic Ocean: Competing Domains of International Public Policy”, 17 Ocean Yearbook 596 (2003). author, “The Dilemmas and Challenges of International Ocean Governance” [in press] author, “Constitutionalism in the Theory of International Law”, in Towards World Constitutionalism: Issues in the Legal Ordering of the World Community, eds. Macdonald and Johnston, 2005.

Subject Index

Adjudication, international growth of, 128-129 work of, 763 Afghanistan al-Qaida, as base for, 95 anarchy in, 95 bloodless coup, 1973, 87 buﬀer state, as, 87 coup, 1978, 87 democracy, exercise of, 95-96 General Assembly resolutions against, 88 Northern Alliance, 95 revolutionary government, 88 Soviet military forces in, 88-89 strategic conﬂict in, 87 Taliban government, 95 Africa ancient, civilization, 238 Egypt, legacy of, 238-239 Cape, Dutch colonization of, 564-565 colonial exploitation, 445-447 competition to British trade, as victim of, 567 convergence of cultures, 332 European’s assault on, 567 Islamic inﬂuence, 331, 445-446, 564 Mungo Park, travels of, 507 partitioning, 566 slave trade, 565 southeastern, migration to, 567-568 southern, early history of, 238-239 Sub-Saharan, capture of, 564-569 Zulus, lands of, 568 Age of Extremes 20th century as, 689 al-Qaida

base for operations, 95 Alaska indigenous peoples, subjugation of, 598-599 Aliens concept of, 677 protection of, 678 Alliance defeat of Napoleon, for, 513, 524 Franco-American, 491-492 Holy, 524-525 New, 515 political goal of, 493 America. See also United States Albany Plan of Union, 426 colonial scene, 1500, 594 Declaration of Independence, 431, 433, 574 diplomatic representatives, 462 discovery of, 330 English taxes, reaction to, 427-428 Enlightenment, 425-432 ethnically diﬀerent societies, 594 French inﬂuence, 427 Hurons, massacre of, 595 indigenous peoples, subjugation of, 593-599 legal realism, 432 ports, British blockade of, 519 pre-Columbian civilization, 332 Revolution, 427, 530 Six Nations, 595-596 smuggling, 428 American Society of International Law annual conference, 71 Manhattan incident, discussion of, 71-72 Anarchy international, 480-482 international relations, of, 35 Anglo-Iranian Oil Company

846

Subject Index nationalization, 6-7 Antarctica demilitarization, 709 international regime, 733 management of, 770-771 Arbitration ancient Greece, in, 195-197 Convention 1899, 639 history of, 633-636 inter-state disputes, of, 642 international, ad hoc, 686, 761 Convention 1899, 639 Jay Treaty, 635-636 legal rules, application of, 635 mediation, as, 634 Near East, earliest recorded use in, 196 Permanent Court, establishment of, 640 settlement of disputes by, 633-640 Sumerian Code, 195 Archeology cognitive, 149 Arctic Ocean Arctic Waters Pollution Protection Act 1970, 69 Canada, interests of, 65-66 Canadian initiative, 69-70 future treatment, philosophical inﬂuences, 113 interests in, 64 management of, 769-771 Manhattan incident, 64-65, 69 ASIL, discussion by, 71-72 marine environment, status of, 69 Northwest Passage, incident in, 64-65, 69 transit management, case for, 72 pollution, protection from, 64 special case for protection, 72-73 threat to environment, 73 Arms control global regime, 97 Australia discovery of, 447-450 Dominion status, 571 indigenous peoples, subjugation of, 606608, 767 self-government, demand for, 571 terra nullius, doctrine of, 607 wool industry, land for, 608

Aviation bilateral air transport agreements, 42-43 Chicago Convention, 38-41 global cooperation, 43 international agreement on air navigation, 38 International Air Services Agreement, 41 International Air Transport Agreement, 41 International Air Transport Association, 42 International Civil Aviation Organization (ICAO), creation of, 40 foundations for, 701 IMO compared, 47 role of, 40-41 international industry, as, 37 jurisdictional and legal dilemmas, 49 jurisdictional issues, 41 law, law of the sea compared, 37-38 national and international components, 37 legal framework, 36 legal literature, 38 mutual interest theory, 49 overﬂying, restriction of, 40 Paris Convention, 38 required documents, 40 sovereignty, issues of, 38 technical matters, 41 Warsaw Convention, 42 world body for development of, 39 Aztecs culture of, 332-333 Belgium coming into existence, 577 Bill of exchange invention of, 305-306 British Empire acquisitive nature of, 552 armies, signiﬁcance of, 550 Commonwealth emerging from, 575 control, model of, 549-551 deep-water port, acquisition of, 554 growth of, 508 India, 551-553 Indian Army, 550 Southeast Asia, diplomacy in, 553-564 Victoria, reign of, 509 world rule, period of, 509

Subject Index British Navy evolution of, 452 impressment, 518 Buddhism, 248-249 Bureaucracy ancient, 167-170 Roman, 206-208 Burgundy kingdom of, 294-295 Burma Anglo-Burmese wars, 556 British claim to, 556-557 India, as extension of, 556 Byzantine Empire diplomacy, 309-310 Byzantine government, 268, 274 Canada Arctic Ocean, interests in, 65-66 Department of External Aﬀairs, in, 68 ICJ jurisdiction, termination of acceptance of, 70 Indian treaties, 600 indigenous peoples, subjugation of, 599602, 767-768 sovereign state, conversion to, 569-571 special case for protection of Arctic, pleading, 72-73 Capitalism development of international law, impact on, 297 development, origin of, 673 evolution of, 353 industrial system, 674-675 Marxist resistance to, 674 optimistic, 673 rise of, 352-357 Capitulations consular jurisdiction, 360 early modern tradition of, 360 Ottoman Empire, under, 360-361 Capture right of, 483 Chile truth and reconciliation commission, 764 China ambassadors, 721 ancient, central government, modernization, 228 challenges to Confucianism, 231-233

civil benevolence, 229-231 Confucianism, 229-231 Confucianist and Legalist elements, amalgamation of, 233 Eastern Chou dynasty, 228 ﬁrst united empire, 229 Han dynasty, 228 legalism, 231 relevance of history of, 233 state theory and practice, 227-229 states of, 228 Taoism, 232 warfare, 228 Western Chou dynasty, 227 world unto itself, as, 227 anti-foreigner movement, 582 Boxer Protocol, 582 British, ﬁrst among equals relationship, 582 bureaucracy, 169 Ch’in, original kingdom of, 717 civic accountability, 170 early modern diplomacy, 308-309 early trading culture, 167 economic rationalism, 354 examination system, 266 extraterritoriality, institution of, 580, 584 feudalism, concept of, 246-247 foreign presence in, 578 foreign residents, immunity granted to, 581 foreign trade community, 578 foreign trade operations, extension of, 582 formal diplomacy, 724 formal law, development of, 125 Han dynasty, 274 hardships, 277 Hoppo, 578 incursions of barbarians, susceptible to, 267 Jesuits in, 476-477 knights, 292 Lamaism, 343 legal system, severity of, 581 local government system, 266 Macartney embarrassment, 477-480 Manchu-Han system of rule, 507 merchant-consuls, 583 Middle Kingdom, 717 myth of, 471-472 Ming civilization, decline of, 389 most-favored-nation treatment, 581, 584 opium, traﬃc in, 578-579

847

848

Subject Index outside world, view of, 471-480 piracy, 367 political systems, 171 population, 768 Prince K’ung, 583 Red Guard, 724 religion in, 343 Russians, border treaty with, 580 Silk Road, 297-298 stratiﬁed society, 266 superiority, idea of, 471-472 T’ang dynasty, 266-267 Tang dynasty, 245 tariﬀs, 581 trade from, 297-298 trade, growth of interest in, 480 Treaty of Nerchinsk, 474-476 treaty relations, 724 tribute system, 472-474 unequal treaties forced on, 580 West, conception of, 578 world power, as, 234 written law, 159-160 Chivalry code, 277 cult of, 290-292 ethic of, 276 Christianity, 252-260 Christ, Jewishness, 253 cruciﬁxion, 252 impact of, 252 Japan, in, 344 missionaries, 255 Roman emperors, of, 253-254 Spanish Catholicism, dogmas of, 349 visions of evil, obsession with, 348 Citizenship concept of, 678 nationality, and, 677 City establishment of, 150-151 Civil enlightenment internationalist cause of, 687 Civil law codiﬁcation, 20-21 inﬂuence of tradition, 109 jurists, 20 Civilization birth of, 150 Egyptian, 152

Mediterranean system, breakdown of, 244 Mesopotamiam system, 147 Western, levels of, 511 Coastal states control and jurisdiction, 496-497 Code of Honour emergence of, 364-365 Colonialism Africa, exploitation of, 445-447 British Indian, in, 442-444 death of, 675 Dutch East Indies, in, 439-442 French Indochina, in, 444-445 imperialism distinguished, 573 Java, occupation of, 440-441 Portuguese India, in, 438-439 repugnancy, 574 Spanish America, in, 434-437 Colonization ancient Greece, by, 191-192 British Dominions, responsible government in, 569-573 dependency, patterns of, 549-575 Dutch East Indies, of, 562 feature of world history, as, 433 inequities, correction of, 738 long-range navigational skills, need for, 433 lust for, 433-434 Philippines, of, 562-564 resort to, 668 ruthlessness, 668 Spain, reforms by, 563 spread of, 482 Sub-Saharan Africa, of, 564-569 Western ambition, 434 Comets Earth, collision with, 151 Common heritage of mankind preservation of, 709 Commonwealth British Empire, emerging from, 575 Communications International Telegraph Convention, 664 long-distance, 613-614 telegraphic, 19th century developments, 664 Concert of Europe, 515-516 Confucianism, 229-233, 249-251 Congo crisis in, 86

Subject Index Congress of Vienna convening, 513 lavish scale of, 514 participants, 514 smaller states, attendance of, 529 territorial possessions, allocation, 514 Conquest higher order of civilization, imposing, 279 pattern of, 278 rights of, 482-483 way of life, as, 279 Constitutional government civil idealism, as, 530 France, in, 530-533 Great Britain, in, 535-541 international law, signiﬁcance for, 548 modern, invention of, 530-549 progress to, 547 Russia, in, 533-535 United States, in, 541-547 Constitutionalism propositions for, 713-714 Western ideals, 713 world, future trend to, 686 goal of, 710-711 new idea of, 711 promotion of, 710-719 strategy of resistance to, 715 Consular privilege codiﬁcation of law, 29 Contraband legal concept of, 490-491 Control law as instrument of, 125 Credit institutions revival of, 355 Culture convergence of, 331-335 Western, in 19th century, 511 world, 715-716 Delia League, 188-189 Democracy right to, 548 Developing countries assistance to, 766 developed countries, gap with, 740 law of the sea, privileges, 741-742, 766 nation-building, 140

UNCLOS III, gain at, 133 Development world order, 132-133 Diplomacy American Republic, representatives of, 462 amoral tome of, 464 ancient, 170-175 boudoir, 461 Byzantine, 309-310 collective, 641, 651 conference, by, 36 birth of, 314-315 deceit, record of, 357-361 early modern Chinese, 308-309 French, characteristics of, 463-464 Graeco-Roman contribution to, 308 great power, 512-530, 529 Holy See, involvement of, 310 information-gathering, 722 inter-state systems, 171 international, history of, 308 international law, and, 315 legation, grant of right of, 462 medieval Europe, in, 310-312 negotiators, 659-661 permanent, foundations for, 358 origins of, 312-314 personal, 460-461, 465 Pitt legacy, 516-526 professional, 461, 660-661 protected representatives, 311 purpose of, 463 representatives, 660-661 settlement, of, 409 theory of, 311 treaty-making, 171-174 Diplomatic immunity abuse of, 4 codiﬁcation of law, 29 premises of mission, inviolability, 11-14 principle of, 4 sacrilegious acts and omissions, as victim of, 16 secular institutions, depending on, 17 Diplomatic privilege history of, 400 Diplomatic protection ancient Greece, in, 192-194 ancient, 174

849

850

Subject Index immunity, origins of, 175 Disarmament idea of, 705 Dominicans, Order of foundation, 380 Dutch East India Company, 388 Dutch East Indies colonialism, 439-442 culture system, 562 Javanese peasants, mistreatment of, 562 Economy recent concept, as, 353 Egypt Africa, legacy in, 238-239 British occupation of, 566 bureaucracy, 168-169 civilization,. 152 First Intermediate Period, 152 Hittites, treaty with, 173 Late New Kingdom, 153 Memphis, founding of, 152 New Empire, 153 pharaohs, 152 Second Intermediate Period, 152-153 single uniﬁed nation-state, as, 176 Third Intermediate Period, 153 war, invention of, 162 Eire Dominion status, 571 England dynastic ambition, 336-337 exploration, 337 nation-state, as, 336 Tudor government, 336-337 Enlightenment Age of, 455 American, 425-432 European, 418, 431 French, 418-422, 432 heritage of, 758 international law, resonance in history of, 433 reason, central role of, 419 Scottish, 422-425, 432 Environmental protection Arctic. See Arctic Ocean Brundtland Commission, 750 conservation, cause of, 746 development of specialization, 73

Earth Summit, 750 emissions trading, 752 expanding area of, 63 global priority, as, 63 greenhouse gases, spread of, 751-752 growth of consciousness, 745 guarding, 745-753 harms, early evidence of, 745-746 history of 63 international issues, 748-749 international law, advocates of, 749 Kyoto Protocol, 751-753, 771 pollution, problem of, 747 Rio Declaration, 751 Stockholm Conference, 747-748 sustainability, 133-134 UNEP, 749 United States, conservation in, 746-747 war, in, 92 World Commission on Environment and Development, 750 Europe Byzantine government, 268 Justinian, rule of, 267 European Court of Human Rights positive and natural law, struggle betweenm 112 European Union faith in, 708 Exploration age of, 324-335 Cheng Ho, by, 325-327 early maritime, 324-325 England, in name of, 337 France, by, 337 history of, 323 Western expeditions, 327-331 Expropriation foreign assets, of, 7, 50 Faith Age of, 247. 264 Far East Dutch inﬂuence, 562 Federal government countries with, 548 United States, in, 541-547 Federalism development of, 576 origins of, 198

Subject Index Feminism international law, theory of, 121 Feudalism Chinese concept, 246-247 concept of, 246-247 deﬁnition, 297 European society, in, 246 evolution of, 275 legal infrastructure, 276 order, sense of, 245 pejorative use of term, 247 world history, as stage in, 297 Fisheries commissions, 661-662 scope of, 60-61 conservation agreements, 60 Convention 1882, 663 high seas regulation, modern controversy as to, 662 international law of, 60 Food and Agriculture Organization, foundations for, 700 France anarchy, on edge of, 532 ancien regime, end of, 418 Bourbon dynasty, reintroduction of, 531 Cambodian government, request for assistance by, 558 constitutional rights, 531-532 constitutional stability, struggle for, 530-533 Declaration of the Rights of Man, 531 exploration, 337 imperial success, 558 imperialism, curbing of, 508 Indochina, colonialism in, 444-445, 558-559 post-Waterloo fragmentation, 531 Revolution, 530 Vietnam, grip on, 558 Freemasons beliefs of, 152 Fuggers lending by, 356 Geneva Conventions expansion, 92 initiative, 92 Gilds tradition of, 303-305 Globalization phenomenon of, 307-308

Great Britain Conservative Party, building of, 539 constitutional development, 535-541 Corn Laws, 540 ﬁnancial burdens on, 539 party politics, 535-541 Reform Acts, 539 Great Flood myth of, 148 Greece, ancient arbitration, use of, 195-197 bilateral agreements, negotiation of, 191 civilization, worldwide inﬂuence of, 184 Cynics, 182 development of world order, contribution to, 180 diplomatic protection and immunity, 192194 federalism, origins of, 198 foreigners, view of, 184 Hellenic civilization, deﬁnition 180 heralds, 192-193 honorary consuls, 193-194 human dignity and public order, contribution to, 179 inﬂuence of, 180 juries, use of, 198 justice, principle of, 197-198 law of, 160-161 legal development, 197-198 multilateralism, pioneers in, 185 neutrality, 187-188 peace treaties, 185-190 philosophy, 180-185 political theory, 180-185 religion, 180-185 secularization of law, 198 Sophists, 181-182 Sparta, rivalry with, 189 trade and colonization, 190-192 treaty-making, 194 warfare, 185-190 Greek philosophy confrontations of, 109-113 Grotius, Hugo, 52, 323, 462, 465, 683 academic literature on, 394 acquisition of territory, view of, 402 arrest and trial, 394 background, 389-391 contributions of, 394-395

851

852

Subject Index erudition, scale of, 403 Grotian tradition, reactions against, 395396 heroism of, 389 ius gentium, new dimension to, 397 just war, view of, 398-399 law of treaties, contribution to, 400 life and works of, 391-395 Louis XIV of France, comment on, 457 natural law, as champion of, 415 neutrality as legal concept, 399 open sea, advocacy of, 496-497 piracy, view of, 401 politics, involvement in, 408 right of conquest, view of, 482 slavery, acceptance of, 498 Hague Codiﬁcation Conference work of, 22 Hawaii cession, oﬀer of, 586 civic responsibility, 586 competing forces, story of, 585 discovery of, 585 French intervention in, 587 government, white residents working for, 587 Honolulu, transformation to boom town, 586 monarchy, constitutional convention to strengthen, 588 polyglot society, as, 586 Polynesian minority in, 590 revolution, 589-590 role of, 586 treaty relations, 587 United States, relations with, 588-589, 597 Western traders in, 586 Hegemony concept of, 711 Hinduism, 248, 277 Holy Roman Empire Charlemagne, 270-271 concept of, 271 decline of, 275 durable polity, as, 274 polities making up, 318 Hospitalers, order of, 287-288 Human development early, length of, 151 history of, 149-150

pre-modern stage 247 scale of transformation, 179 spoken language, role of, 151 stages in, 149 Human improvement belief in possibility of, 510 Human rights child, rights of, 760 cultural and religions diﬀerences, 757-758 decisions of courts, law invoked in, 760 expanding area of, 63 expansion of, 756 international law of, 755 birth of, 693-694 non-discrimination, ethos of, 758 priorities, setting, 757 UN Covenants, 758-759 UN debate, 758 UNICEF, role of, 760 value categories, 756-757 Human welfare aims of, 124 Humanism challenge of, 361-365 rise and fall of, 361-362 use of term, 361 Humanists early, 328 Humanitarian intervention considerations for, 101-102 examples of, 18 moral imperative, 102 Idealism inter-state relations, in 3 Imperialism discrediting of, 675 policy of, 667 Incas culture of, 333-334 India Akbar, rule of, 390 ancient, Aryans, 235 external inﬂuences, 235 international law, challenge to origins of, 238 Mauryan Empire, 236-238 mixing of cultures, 234-235 post-Harappan period, 235 Aurangzel, reign of, 442

Subject Index Black Hole of Calcutta, 443 British in, 551-553 bureaucracy, 169 colonialism in, British, 442-444 Portuguese, 438-439 cultural continuity, lack of, 234 doing business in, 552 East India Company, 552, 554 English East India Company, privileges of, 442 family of nations, 238 force of arms, acquired by, 552 Gupta culture, 245 Gupta era, 265 Indian Army, 550 Mauryan empire, 265 Mutiny, 553 trade from, 298 written law tradition, 159 Indigenous peoples Alaska, of, 598-599 Australia, of, 606-608 Canada, of, 599-602 claims, dealing with, 609 world community treatment of, 610 entitlement, claimants to, 609-610 inter-state system victims of, 767 lands of, 609 Latin America, in, 591-593 New Zealand, of, 602-606 subjugation of, 591-611 treaties, 610 United States, in, 593-599 Information technology regulation of, 613-614, 640-641 Institut de Droit International foundation of, 107 Inter-state relations agents of, 460-464 ancien regime, in, 462 area for conduct of, 470-471 conduct of, 549 instruments of, 464-467 machinery for conduct of, 455 power-holders, 456-460 International agreements administrative, 661 bilateral, 611

Conventions, 619 multilateral, 611. See also Treaties non-political, 661 Protocols, 619 International Bank for Reconstruction and Development foundations for, 700-701 International Civil Aviation Organization creation of, 40 foundations for, 701 IMO compared, 47 role of, 40-41 International Committee of the Red Cross foundation of, 92 International Court of Justice advisory opinions, 76 Canadian acceptance of jurisdiction, termination of, 70 creation of, 693 criticism of, 14-15 dispute resolution, engagement in process of, 14 judges of, 762 neutrality, 14 new conceptual design on, 15 Permanent Court of International Justice designated as, 701 recourse to, 76 source of international law, 111 UN, as organ of, 14 United States, support of, 9 World Court, as, 762-763 International Criminal Court availability of, 765 establishment of, 764 International criminal tribunals aim of, 763-764 establishment of, 714-715 procedure, 765 trials in, 764 International humanitarian law compassionate core of, 92 evolution of, 91-92 expansion, 92 seeds sown for, 296 International Labour Organization conventions, 728 International law adjudication, 763 ancient and modern, 103

853

854

Subject Index antiquity, roots in, 145 apparatus of, 63 bureaucracy, 105 capitalism, impact of, 297 civil enlightenment model, 506 classical, increasing irrelevance, 122 codiﬁcation, 21-23 case for, 652 codiﬁers, 650-654 common law system, in, 55 concept of, 55 global system, creation of, 765 history of, 650-654 legislature of Massachusetts, endorsement by, 651 topics for, 24 constitutional model, cultural issue, 715-716 jurisprudential resistance, 715 modern, 712, 714 political objections, 716 world reform, challenge to, 716 contemporary, areas of, 63 imagery of, 693 issues and agendas, 761-772 modes of, 240 conventional, 19 customary, and, 665 priority of, 111 criminal, 763 customary, conventional, and, 665 natural law, deriving legitimacy from, 19 deﬁnition, 145 developmental model, 739 dilemmas, 136-138 disparities, dealing with, 737-745 dispute settlers, 654-656 distinct approaches to, 140 diversity of, 105-106 eﬀectiveness in ordering society, 35 elusiveness, 19 equitable system, establishment of, 50 Eurocentric heritage, 106-109 Europe and North America, schism between, 114, 140 European and African culture, split between, 766 European, history of, 317

feminist theory, 121 foundations of, 3 French sociologists, role of, 113 German philosophers, role of, 113 globalization, 307-308 government experts, working environment, 67 Greek philosophy, contribution of, 109-113 Grotian tradition, 323 history of, 138-139 conceptual framework, 122 contextualist treatment of, 240 International law ideas and practices, origins of, 176 imagery, variability of, 139 images of, 124 incomplete system of, 105 infrastructure, 123 institutional incompleteness, 145, 161 intelligibility, 124 international adjudication, growth of, 128129 invocations to, 3 issues of, 765-766 juridical approach to, 17 law-and-economics approach, 122 leader states, 62 Legal Advisers. See Legal Advisers legal issues and civil morality, 18-19 legal opinions on, 657 legal science, development of, 684 legal system, as, 642 litigational ideal, 761 Marxist-Leninist theory of, 692 models of, autonomy, 125-126, 138 choice of, 136, 696 civil benevolence, 131-132 conﬂict resolution, 129-130 cooperation, 134-135 development, 132-133 early modern jurists, debate of, 404 environmental sustainability, 133-134 importance of, 135 order, 125-126 pre-modern history, in, 318 primitive antiquity, in, 177 regulation, 127 system convergence, 130-131 values and principles, merging, 135

Subject Index war prevention and management, 127-128, 136 world constitutionalism, 128-129 modern legal development, 56 moral inﬂuence, 146 national legal systems compared, 642 nature, views on, 226 negotiators, 659-661 new age of, 62 normative system, as, 4 norms, guiding, 140-141 identiﬁcation, application, acceptance, promotion and development of, 105 nature of, 105 North v South issues, 50-51 obligation, theory of, 19 organizational phase, 21 overgeneralization of theories, 122 policy, place of, 120-121 political foundations, 4 political landscape, transformation of, 505 political science, 666-667 pre-modern academic literature on, 19 primitive antiquity, origin in, 131 primitive law, comparison with, 161 professional legal advisers, 657-658 regime-building initiatives, 695 regulators, 661-664 religion, relationship with, 263 rules, system of, 4 ruling class, interests of, 692 scientism, 666 scope of, 103 shield, as, 125 shifting nature of, 18 softening of, 735-737 sources of, formal, 105 general principles of law, 111 ICJ, as applied by, 111 international conventions, 111 international custom, 111 judicial decisions and teachings, 111 specialized area of scholarship, as, 665 state consent, as expression of, 49 state practice, 105 strict legal culture, as, 735 systematic eﬀort to develop, 55-56 systems, functions of, 49

tensions, 136 text writers, 643-650 theological input, 395 theoretical agenda, 761 treaties. See Treaties treatises, 643-644 voluntary nature of, 763 Western civilizations, role of, 176 world discovery, eﬀects of, 403 world order, as, 695 conceived as, 145 International Law Commission codiﬁcation panel, as, 23 law of the sea, draft articles on, 54 membership, 23 topics for codiﬁcation, identiﬁcation of, 24 treaty law, codiﬁcation of, 25-30 International legal theory formalist mainstream, 114 rule and policy in, 113-123 International Monetary Fund foundations for, 700 International morality academic literature on, 3 International organizations agencies, 729-730 autonomous states as members of, 126 development of contemporary world order, contribution to, 729 number and diversity of, 727 public international unions, 727 record of, 35 rise of, 726-730 international political order ancient history, in, 175 ﬁrst evidences of, 146 International Red Cross birth of, 632 growth of, 632 International regimes Antarctica, for, 733 arrival of, 730-735 Barcelona approach, 733-735 forms of, 730 international standards, 732 Mediterranean, regulation of, 733-734 modern, roots of, 731-732 non-binding, 732 regional seas, for, 734 whaling, regulation of, 732

855

856

Subject Index International Seabed Authority establishment of, 59 International society evolution of, 396 International Standards Organization nature of, 732 International Workingmen’s Association (First International) creation of, 674 Internationalism conservative, 671 contemporary, modes of, 694-696 liberal, 672 nationalism, and, 671 socialist, 672-673 Internet communications, forum of, 141 Intervention Great Powers of Europe, prerogative claimed by, 526 political necessity, 342 Security Council decisions, 342 Iran Anglo-Iranian Oil Company, nationalization, 6-7 Bakhtiar as Prime Minister, 8 current regime, 19 division of, 4 Europe, persons educated in, 5 foreign assets, expropriation of, 7 heritage, 4 hostage crisis, 9-17 Mossadegh as Prime Minister, 6-7 northern territories, annexation of, 4 political history of, 4 political parties in power, 5 Revolution, 8 Second World War, occupation in, 5 Shah, 5, 8 overthrow, 8 Soviet troops in, 5-6 US court action against, 11-14 US Embassy, attack on, 9 Vienna Convention, obligations of, 11-14 Iran-United States Claims Tribunal jurisdiction, 16 magnitude of claims, 16 majority approach, challenge to, 17 Iraq

biological and chemical weapons, control of, 97-98 ﬁrst Gulf War, 89-91 future implications of conﬂict, 100 Kurds, protection of, 94 Kuwait, invasion of, 89-91 unauthorised intervention, reaction to, 100 US intervention in, 719 US-led invasion of, 96-99, 138 War, controversy over, 113 Islam Africa, in, 331, 445-446, 564 Christians and Jews, treatment of, 283 civilization, 268-269 Empire, 269-270 empire founded on, 268 Europe’s nervousness as to spread of, 346 forces of, war against, 284-285 hatred of Christians, 287 holy war, 282-283 religion of, 260-262 Shi-ites, 270, 346 spiritual and temporal authority, 269 Sunnis, 270, 346 Island states least developed countries, designation of, 585 Japan Christianity in, 344 modernization, nationalist sentiment in favour of, 670 religion in, 343-344 Jay Treaty, 504, 635-636 Jerusalem Christian zealots, as target for, 284-285 Christians and Arabs in, 286 history of, 284 international controversy, at center of, 283 Muslim takeover, 289 Saladin, negotiations with, 288 slaughter in, 285 Jesuits China, in, 476-477 Spanish School, 383 Jihad interpretation of call to, 282 nature of, textual diversity, 282 obligatory nature of, 282 threat of, 283 Judaism, 155-157, 251-252

Subject Index anti-Semitism, 347-348 Judges International Court of Justice, of, 762 international, unrepresentative status of, 715 Jurisprudence historical, 260 Jurists Dutch milieu, 387-389 early modern international, 379-395 Elizabethan milieu, 384-385 international, role of, 379 Spanish milieu, 380 Jury ancient Greece, use in, 198 Jus cogens international law, in, 32 Justice ancient Greece, principle in, 197-198 Kellogg-Briand Pact, 705-706 Knights of the Temple (Templars), 287-288 Korea civil war, 79 foreign occupation, 78 partition, 78 Rhee, leadership of, 78 South, invasion by North, 78 UN troops in, 79-80 US-Soviet regime, 78 Kosovo NATO intervention, 93-94, 101 Kuwait invasion of, 89-91 Language spoken, role in human development, 151 Latin American countries Britain, commercial relations with, 525 Law ancient, 157-161 ancient Romans, legal order, 204-206 canon, civil law, overlap with, 373-374 codiﬁcation, 375 development of, 276 theory of diplomacy, 311 use of, 276 civil, canon law, overlap with, 373-374

Christian inﬂuence, 259 independent discipline of, 258 commercial, evolution of, 307 genesis of, 305-307 law merchant, 306 national legislation, 305-306 common, quickening of, 376-379 toughness of, 376 custom as, 157 codiﬁcation of, 307 European legal heritage, 373-376 international. See International law law merchant, 306 new ideas in, 407 oﬃcial phenomenon, as, 158 Roman, Justinian’s codiﬁcation of, 267 revival of, 259 secularization, 198 transnational convergence, 319 written, earliest, 159-160 Law of nations apologists, 467-470 branches of, 418 equality, principle of, 3 evolution of, 74 minimalist position, 415 positivist view of, 467 public international law 3 state consent, 465 treatises on, 107 Law of the sea ancient Rome, of, 212-214 changes in, 50 classical, 52-53 closed sea, arguments for, 52 codiﬁcation, 55 common heritage of mankind, concept of, 57-58 common need, 51 continental shelf, regime of, 53 Convention, 741 deep sea mining, regime for, 59 developing countries, privileges of, 741-742, 766 dominion, claims to, 52 equitable statist concepts, 742 freedom of the seas, opposition to, 51-52

857

858

Subject Index innocent passage, right of, 37 Institute, 72 International Law Commission draft articles, 54 legal status issues, 772 modern functional sophistication, 53-54 modern legal development, 56-57 North-South divisions, 743 Pardo, work of, 57-58 public policy, 43 two-regime system, 54 UNCLOS I (First UN Conference), 54 UNCLOS III (Third UN Conference), 740743, 748, 766 agenda, 54 challenge posed by, 58 coastal states, interests of, 59-60 developing countries, gain for, 133 equity considerations, 61 erosion of European heritage, illustrating, 108-109 exclusive economic zones, agreement of, 61 ﬁshing regime, 60. See also Fisheries legal reforms, 46 Main Committees, 59 neo-classical to post-classical era, transition, 55 pre-legal issues, 112 preparatory diplomacy, 58 reform, scale of, 61-62 religious organization, observers from, 263 League of Nations Covenant, 74-75, 699 creation of, 21, 62 demise of, 700 independent technical bodies, 698 replacement of, 75 Legal Advisers balance, ﬁnding, 69 Canadian Department of External Aﬀairs, in, 68 competent technicians, as, 67 contribution of, 656-659 government, as employee of, 68 international law community, members of, 67 international society, obligation to, 68-69 King’s Advocate, 658

loyalties and responsibilities of, 66 obscurity, 659 policy advisers, 67 policy-oriented, 68 profession of, 656-659 technicians, 67 Legal development European civilization, failure in, 275 Legal formalism counter-formalism, 114-115, 121-122 Legal positivism international law, contribution to, 111 Legal realism American, 432 American, 687 American, 114 European, 114 international law, opening up ﬁeld of, 115 Legal systems convergence and divergence of, 372-379 European legal heritage, 373-376 Macedon, 184 Magna Carta, 376 Malacca British colony, as, 555 Maritime law common, 44 private, 43 public, 44 Marxists-Leninists class ideology, 691 international law, theory of, 692 Russian abandonment of doctrine, 693 Mayans culture of, 332 Medicine Western, early, 258 Mediterranean regulation of, 733-734 Mesoamerica pre-history, 147-148 city, invention of, 150 civilization, system of, 147 riksu, 172 writing system, 147 Meteorites Earth, collision with, 151 Middle Ages writers on, 317

Subject Index Minorities human rights of, 756 Modern world birth of, 511 date of, 245 Modernization countries in struggle with. 4 Monarchy absolute, 530 national, 480 Money invention of, 190-191 Money lending banks, by, 306 Fuggers, by, 356 Mongol Empire development of East-West relations, importance in, 298-300 Monroe Doctrine, 527-529, 719 Myths ancient, evaluation of, 148 Napoleon Bonaparte background, 500-501 federated European system, commitment to, 515 First Consul, as, 508 imprisonment of, 502 national greatness, representing, 512 Russia, invasion of, 531 structure of authority, 531 victory over, coalition for, 513 Nation-state England as, 336 period of, 316 total legitimacy, idea of, 335 National boundaries disputes, 681 maritime, 682-683 natural, 682 territoriality, and, 680-683 vagueness of, 681 Nationalism early stage of, 574 energies of, 668 established prerogatives of sovereign state, threat to, 684 history of, 683 internationalism, and, 671 liberal, 670

meaning, 676 modern sense of, 669 national minorities, problem of, 678-680 nature, origin and eﬀect of, 676 sentiment, 669 Nationality citizenship, and, 677 NATO Kosovo, intervention in, 93-94, 101 Natural law anti-pluralism, 120 customary international law, legitimacy of, 19 debate, revival of, 414-418 doctrine of, 3, 396 idealists, 415 indeterminacy, 120 international law, in ﬁeld of, 110 relationship with, 396 law of nations, separation of, 397 remains of, 112 school of, 109 theorists., 259 Navigation trade, 296-297 Neutralism meaning, 489-490 Neutrality armed, 491 grey zone, 491 jurists, dividing, 490 legal concept, as, 399 meaning, 489 neutral trading, 490 neutralism, and, 489-490 status of, 491 New International Economic Order critics of, 744 purpose of, 743-744 UNCTAD connection, 743 New Zealand British emigrants to, 603-604 Dominion status, 571 European exploitation, 602-603 indigenous peoples, subjugation of, 602606 indigenous peoples, 767 Polynesians, exploration by, 602 Treaty of Waitangi, 604-606

859

860

Subject Index Newfoundland Dominion status, 571 Non-governmental organizations political inﬂuence, 694 resources of, 694 Non-viable countries assistance to, 766 Normality logic of, 695 Obligation concept of, 111 Order feudal. See Feudalism structured society, problem in, 145 system of rule, in, 685 Ottoman Empire capitulations, under, 360-361 dismemberment of, 679 stability, 390 Outer space law of, 709 legal literature, 38 Pax Romana period of, 278 Peace activists, ﬁrst, 292-294 First Hague Peace Conference, 623-626 general, maintenance of, 515 lasting, quest for, 349-352 Paris Peace Conference, 697-698 peaceful settlement of disputes, call for, 411 permanent, idea of, 633 quest for, 483-488 unrealizable, 706 perpetual treaty, 292, 349 treaties, 482-483 Peace of Westphalia, 408-413 Peloponnesian War, 188 Penang acquisition of, 554 Dutch, control by, 555 Pericles, 190 Permanent Court of International Justice creation of, 693 International Court of Justice, designated as, 701 legal formalism, tradition of, 14

Philippines colonization, 562-564 Piracy Chinese, 367 common jurisdiction over, 495 constant concern, as, 495 control of, 366-367 deﬁnition, 372 international crime, as, 372 judicial treatment of, 496 legal treatment, 401 North African, 367 Northern Europe threat in, 367 universal jurisdiction, 401 Pollution Arctic Ocean, protection of, 64, 69 oil, 64 ships, from, 47, 64 Population statistics, 768-769 Portugal India, colonialism in, 438-439 maritime power, as, 450 Postal communications international organization, 36 Prehistory cultivation 148 Mesoamerica, of, 147-148 neolithic sites, 150 origins of, 146 Prisoners of war treatment of, 296 Privateering British, success of, 494 encouragement of, 368-369 enforcement vessels, 493 meaning, 368 private war, concept of, 493-494 prize, law of, 493-495 Privateers commissions, 656 prize, claiming, 655 Prize international function of courts, 655 international nature of law, 495 law of, 493-495 law, rules and procedures of, 654-655 privateers claiming, 655 US courts, 655 Protagoras, 182

Subject Index Public international law evolution of, 3 public anonymity. 3 Racism progress, barriers to, 278 Realpolitik practitioners of, 505 Religion ancient, 154-157 ancient Greece, in, 180-185 ancient Rome, of, 215-217 aspirational function, 264 Buddhism, 248-249 China, in, 343 Christianity, 252-260. See also Christianity Ciceronian reason and humanism, 217-224 civil benevolence, as, 248 conﬂicts, 262 Confucianism, 229-231, 249-251 creative function, 263 custodial function, 264 destructive force of, 262 didactic role, 264 East, Western religiosity in, 347 fanaticism, 262 Far East, in, 342-344 Hinduism, 248, 277 history, shadows in, 247 human thought and development, as crucial element of, 247 international law, relationship with, 263 Islam, 260-262. See also Islam Japan, in, 343-344 Judaism, 155-157, 251-252 Lamaism, 343 meditational role, 264 Near East, in, 345-347 pre-modern era, since, 263 progress, barriers to, 278 superstition, 155 traditional theology, 263 West, Western religiosity in, 347-349 Rhine Convention on Navigation of, 663 Rome, ancient authority, challenge to, 244 bureaucracy, 206-208 Christianization, 253-254 civil law, 211

conquest and rule by, 201-204 consuls, 206-207 courage, admiration for, 200 cultural conﬁdence, 204 culture, 201-204 decline and fall, 207, 243-244 empire-building, 209-212 Etruscan heritage, 199-200 exceptionalist ideology, 718 formal law, origins of, 204 freedom of the seas, 214 Greeks, beneﬁciaries of, 199 Hegemony, Age of, 200, 247 human dignity and public order, contribution to, 179 judicial settlement, 209-212 juridical legacy, 241 jurists, 224-226 law of the peoples, 212 law of the sea, 212-214 laws, body of, 212 legal and civic skills, 200 legal order, founding, 204-206 modern world law, debt owed by, 226 moral superiority, 203 piracy problem, 212-214 pro-Greek and anti-Greek, clash between, 203 Punic Wars, 202 religion and formality, 215-217 rule of law tradition, 227 slavery, view of, 498 standards of excellence, 199 trade, 209-212 Twelve Tables, 205-206 war, resort to, 201-202 Rule of law political foundations, 712 tradition, 227 Russia China, border treaty with, 580 De Maistre, inﬂuence of, 534-535 liberalism, 533-535 Napoleon, invasion by, 531 Science beginning of, 150 Sea power British, rise of, 452-453 global, 450-455

861

862

Subject Index world power, in context of, 454 Self-defense anticipatory, 99 pre-emptive, 99 Self-determination open-ended, 575 principle of, 574-575 Shipping Comite Maritime International, 44-45 conferences, 45 international instruments, 47 commercial units, number of, 43 ﬂags of conveniences, 47-49 inter-governmental bodies, 45 Intergovernmental Maritime Consultative Organization (IMCO), 45-46 Maritime Safety Committee, 46 Subcommittee into the Marine Environment Protection Committee, 46 Technical Cooperation Committee, 46 international instruments, 47 International Maritime Organization (IMO), 45-46 ICAO compared, 47 marine pollution, operations as to, 47 jurisdictional and legal dilemmas, 49 legal system, development of, 43-44 maritime law. See Maritime law mutual interest theory, 49 nationality, conferring, 48 non-discrimination, principle of, 47 pollution from, 47, 64 registration, 48 UNCTAD, transfer of concerns to, 46 uniﬁcations of laws, 44 vessel-based trade, 43 Sierra Leone freed slaves, shipping point for, 565-566 Singapore port of, 555 Straits Settlement, 555 Slavery Act for the Abolition of the Slave Trade, 566 Africa, persistence of trade in, 565 ancient Romans, view of, 498 anti-slavery movement, seeds of, 499 Atlantic slave trade, 356-357, 446-447 common practice of, 497 denunciation of, 498

French, abolition by, 499 history of, 356 Indian Ocean, 500 legal reform, 447 Louisiana, in, 546-547 prisoners of war, of, 498 treaties, 616-619 treaty condemning, 499 world justice, calls for, 755 Social science model-making, 124 Socialism internationalism, 672-673 Marxist, 674-675 moderate, 675 South Africa colonial development, 572 Dominion status, 571 Southeast Asia colonial system, 554 colonies, 569 diversity of, 554 Dutch rule, weakening of, 555 external powers, eﬀect on stability of, 559 Federated Malay States, 556 imperial diplomacy in, 553-564 Straits Settlement, 555 treaty-making diplomacy in, 574 Soviet Union Afghanistan, invasion of, 88-89 Gorbachev, policies of, 89 Spain Armada, 451 indigenous peoples, subjugation of, 591-593 New World, conquest of, 450-451 War of the Spanish Succession, 435 State autonomy concept of, 318 State equality doctrine of, 685 State responsibility doctrine of, 7 State sovereignty basic norm of international law, as, 414 Bodin’s theory of, 339-340, 413 external, 341, 576 concept of, 413-414 internal, 341 internal sense, in, 413 internal theory of, 576

Subject Index international law, in theory of, 412 introduction of, 413 legislative sovereignty and divine right of kings, combination of, 413 legitimation, 338-342 meaning, 576 popular, 341 pre-modern era, in, 341 statehood, right to, 576-578 States autonomy, 640 balance of power, 697 cooperation between, 611 derivation of concept, 340 international law, in sense of, 318 leader, 696 new, emergence of, 577, 669 public law sense, in, 318 sovereign, emergence of, 336 fundamental notion of, 340 modern, rise of, 335-342 normative structure, as cornerstone of, 341 sovereignty. See State sovereignty Statistics reliance on, 768 Stone-age stages in, 149 Suez Canal building of, 615-616 crisis, 83-85 treaty regime, 566 Syracuse, 192 Taoism, 232 Telegraphy communications, 19th century developments, 664 international organization, 36 International Telegraph Convention, 664 long-distance, 613-614 Territoriality national boundaries, and, 680-683 Territory acquisition of, 488-489 adjudication, by, 489 discovery, by, 489 international legal treatment, 401-402 papal grant, by, 489

Terrorism increasing threat of, 92 security measures, 94-95 9/11 attacks, measures following, 94-95, 97-98, 100 Teutonic Knights, 287-288 Thailand Chulaongkorn, 561 foreign aﬀairs, conduct of, 561 independence, 559-560 Mongkut, 560-561 Rama III, 559 Rama IV, 560-561 Rama V, 561 reform in, 560 Toltecs culture of, 332 Trade ancient, 164-167 ancient Greece, by, 190-192 ancient Rome, in, 209-212 commercial greed352-357 commercial law, genesis of, 305-307 cooperative regulatory ethic, 318 East-West, 297-301 ﬁnancing, 355 foreign traders, discrimination against, 306 international, right to engage in, 393 maritime commerce, 301-303 money, invention of, 190-191 navigation, and, 296-297 neutral trading, 490 non-local, development of, 164 overseas, 352-357 sailor-merchants, by, 166 travel for, 353 Treaties American practice, 22 ancient, 171-174 anti-slavery, 616-619 bilateral, administrative, 621, 723, 725 basis of, 686 bindingness, 620 demonstrative, 620, 723, 725 distributive, 621, 723 majority, as, 722 political purpose, 620 resolutive, 620, 723 subject matter of, 620

863

864

Subject Index system, 619-621 types of, 723 volume of, 619 capitulations, consular jurisdiction, 360 early modern tradition of, 360 Ottoman Empire, under, 360-361 China, relations by, 724 circumstances, products of, 465 codiﬁcation of law, competing theories of law, 112 Fitzmaurice reports, 27-29 ILC, work of, 25-30 members of Commission, 28 preliminary report, 25 priority of, 24 progress of, 25-30 Rapporteurs, 24-27 time taken for, 34 compilations, ﬁrst, 502-503 compliance with, 465-466 concept of, 399 Conventions, 619 corpus, identiﬁcation of, 644 covenants, 725 data collection, 466-467 dysfunctionality, 723 Egypt and Hittites, between, 173 empirical inquiry, 466 European scholars, interest of, 22 fairness, 686-687 foundational status of obligations, 22 functional analysis, 723 Gentili, work of, 400 information technology, regulation of, 613614, 640-641 international law, as cornerstone of, 20 international waterways, management of, 614-616 interpretation, 33-34 teleological approach, 123 Jay Treaty, 504, 635-636 jus cogens, 32 law of, start of, 20 lists of, 721 making, ancient Greece, in, 194 bilateral, 505 contractual ceremony, as, 722 early, 171-172

growth in, 640 history of, 315 origins of, 720 process of, 34 resource management, concerns with, 641 mixed function, 621 modern system, 720-725 multilateral, common regulations, 663 development of, 727 diversity of uses, 612 international agencies, for, 729-730 list of, 612, 643 origin of, 663 pattern of making, 612 resort to, 612-613 subject-matter, 728 types of, 723 new issues, 35 nomenclature, 725 obligations, paramount, 399 observance, 30 other international agreements, and, 22 peace, 482-483 practice, 19th century, 640 registration, 721 reservations, 31-32 riksu, 172 rules of, 22-23 sanctity of, 722 statecraft, as instrument of, 358 subject matter of, 35 succession, 399-400 Sumerian stele, 172 total number of, 721 Treaty of Ghent, 521, 636, 654 Vienna Convention, interpretation, approach to, 33-34 observance, 30 war, regulation of, 616 United East India Company formation of, 439 United Nations binding decisions, legal eﬀect of, 730 capacity, 730 Counter-Terrorism Committee, 100 Declaration on Principles of Friendly Relations, 739 democracy, restoration of, 94

Subject Index Dumbarton Oaks, intention at, 81 proposals, consideration of, 702 General Assembly, Afghanistan, resolutions as to, 88 authority of, 703 Group of 77, 81-82 international peace, authority in matters of, 80-81 peacekeeping by, 85 resolutions, legal eﬀect of, 740 geopolitics, arithmetic of, 81 humanitarian intervention by, 18 humanitarian oﬃces, 92 humanitarian relief as rationale for operations, 93 inequities, correction of, 738 international problems, solving, 739 intervention and peacekeeping issues, 8087 intervention, system of, 102 Korea, intervention in. See Korea law, parts of, 702 least developed countries, designation of, 584-585 marginal states, position of, 584-585 Military Staﬀ Commission, 77 multi-purpose intervention, 89-94, 138 near-universal membership, 728 peace maintenance, poor record on, 81 peacekeeping, Congo, in, 86 focus of, 102 function, demands on, 91 General Assembly, role of, 85 history of, 84 humanitarian operations, 93 international mission, 84-85 operations, organization of, 85 principles of, 85-86 problem-solving institution, reputation as, 80-81 purpose of, 75, 738 reconstitutionalizing, 714 reform, case for, 102 Secretary-General, Boutros-Ghali, 91 Hammarskjold, 83-84, 86 intervention practice, signiﬁcance in, 82 Lie, 83

Thant, 86 Security Council, activities of, 77 intervention decisions, 342 operational diﬃculties, 704 permanent members, 77, 703 post 9/11 politics, 97-98, 100 powers of, 76 primary responsibility, 76 resolutions, 77 structure and procedure, revision, 129 US foreign policy, link with, 101 system, building, 700 threats to international peace and security, capacity to deal with, 99 United States, dominance of, 701 use of force, regulation of, 704-710 United Nations Charter American inﬂuence on, 701 creation of, 50 drafting, 75, 737 interpretation and application, responsibility for, 129 language, attacks on, 738 legal status, paramount, 714 principles in, 18 regional arrangements or agencies, recognition of, 77 respect for, 702 statement of principles, 75 United Nations Emergency Force I peace eﬀort by, 85 United States. See also America Bill of Rights, 545 Civil War, 632 conservation, cause of, 746-747 Constitution, 503-504 constititionalism, 541-547 court action against Iran, 11-14 Declaration of Rights, 545 exceptionalist culture, as, 717-718 federal experience, 541-547 foreign policy, unilateral and multilateral strands of, 10-11 Hawaii, relations with, 588-589, 597 indigenous peoples, subjugation of, 593599, 767-768 international adjudication, commitment to, 10 intervention, considerations for, 101-102

865

866

Subject Index isolationism, 700 leader state, failure to contribute as, 719 litigation, 10 major power, emerging as, 405 missionary nation, as, 718 New Jersey Plan, 543 New York, dereliction of, 504-505 Philadelphia Convention, 544-545 revolution, 507 slave economy in, 546-547 state laws, constitutionality, 546 unilateral intervention by, 342 United Nations, dominance of, 701 Virginia Plan, 543 World Court, supporting, 10 world history, impact on, 432 world stage, entry on, 503 Venezuela Declaration of Independence, 436-437 War ancient Romans, resort to by, 201-202 Anglo-Burmese wars, 556 catastrophic results of, 279 causes of, 278, 295 Christians, resort by, 280 Crimean, 629-630 Crusades, 283-290 denunciation of, 292 disarmament, idea of, 705 evil, obligation to punish, 280 Falklands War, 280, 772 First World War, historical scholars on, 690 slaughter of, 690 Geneva Convention 1864, 632 Geneva Law, 628 Geneva Protocol, 704-705 gentlemanly nature of, 623 Hague Rules, 627 history of, 278 holy, 282-283 illegal act or omission, in response to, 110 institution of international law, as, 621 invention, 162 jihad, 282-283 just concept of, 201-202 just, 279-281, 397-399

law and customs, call for codiﬁcation of, 626 law of nature, as part of, 468 law of, dual system, 622 legal idea of, 616 Lieber’s Code, 626-627 limitations of, 281, 623 management of, 685 moral restraint, fought with, 290 play, 622-623 pre-modern pattern of, 283 prevention and management regime, 74-77, 127-128 prevention of, 319 policy of, 123 private, 493-494 problem of, 623 Second Hague Peace Conference, 705 Second World War, civilization, threat to, 691 destructive warfare of, 691 divided world following, threat of, 692 human sensitivity, loss of, 691 values at stake in, 691 world order, collapse of, 700 states, practice of, 621-622 theologians, view of, 397 Third Commission, 637-639 Thirty Years’ War, 408-413 traditional law, inadequacies of, 704 treaties limiting scope of, 704 United Nations Charter provisions, 76 US Army’s Military Manual, 626 use of force, reinterpretation of law, 101 War of the Spanish Succession, 435 weapons, prohibited, 627-628 War crimes ﬁrst trial, 294-295 Warfare ancient, 161-164 ancient China, in, 228 ancient Greece, in, 185-190 chivalry, cult of, 290-292 destructive, 691 humanizing, 629 medieval, 281 Waterways international, management of, 614-616 Weapons crossbow and arch, 296

Subject Index nuclear, 705 Non-Proliferation Treaty, 709-710 poisoned, 296 prohibited, 627-628 Westernization countries in struggle with. 4 Whaling regulation of, 732 World community consent and commitment of, 719-737 World culture introduction of, 405 World law expansion of concept of, 548 World order ancient Greece, contribution of, 180 authoritative institutions, 702 autonomy, 125-126, 138 benevolent society, cultivation of, 753-761 challenges to, 296 civil benevolence, 131-132 classical stage in history of, 642 classical period of international law, building during, 666 collapse between 1939 and 1945, 700 competing ideologies, 666-675 concentric circles, 396 concepts of, 689 conﬂict resolution, 129-130 contemporary, milieu, 689-694 cooperation, 134-135 core norms, 699 development model, 132-133

dilemmas, 136-138 environmental sustainability, 133-134 fairness, 686-687 gateways to history of, 139 growth of, 124 heritage thinking, 137 history of, 123 international law as, 145, 695 international, preservation of, 696-704 juridical conception, compliance with, 693 modern system, building, 176 development of, 355 order, 125-126 political failures, 699 primitive antiquity, evidentiary challenges, 153-154 re-imagining, 123-136 regulation, 127 root problem in building, 731 secular authority, of, 342 system convergence, 130-131 transformation of, 664 universality, 130 war prevention and management, 127-128, 136 world constitutionalism, 128-129 World Trade Organization establishment of, 714 legitimacy of regime, 307 Writing development of, 146 ﬁrst, 147

867

Index of Names

Abelard, Peter, 271 Abu Bakr, 269, 290 Adams, Abigail, 492 Adams, John, 430-431, 462, 492, 504 Adams, John Quincy, 430, 521, 526, 528 Akbar, 347, 390, 442 Alberoni, Cardinal, 483-485 Albuquerque, Aﬀonso d’, 438, 555 Alciati, Andrea, 374 Alcorta, Amancio, 646-647 Alexander I of Russia, 484, 488, 512-514, 525-526 Alexander II of Russia, 625 Alexander III of Russia, 287 Alexander the Great, 87, 130-131, 184-186, 190, 221, 235, 334, 667 Alighieri, Dante, 293-294, 349 Almeida. Francisco de, 438 Anselm, Bishop, 259 Antoninus, Marcus Aurelius, 222-223 Aristotle, 110, 182-183, 220, 353 Arminius, Jacobus, 393 Aron, Raymond, 706-707 Asoka, 237 Asser, Tobias M.C., 639 Atahuallpa, Enperor, 334-335 Augustinus, Aurelius, 255-256 Aurangzel, 442 Austin, John, 107 Avenol, Joseph, 82-83 Bach, Johann Sebastian, 406-407 Bacon, Francis, 377-378 Baird, General David, 552 Bakhtiar, Dr. Shahpur, 8 Balian of Ibelin, 288 Barbarossa, Frederick I, 289

Barbeyrac, Jean, 466 Barros, James, 83 Bartolus of Sassoferrato, 273 Barton, Clara, 632-633 Barzargan, Mehdi, 8 Baxter, Robert, 499 Beard, Charles, 114, 119 Becker, Carl, 432 Beesley, Alan, 66 Bell, Alexander Graham, 613, 664 Bell, Johannes Adam Schall von, 477 Bellers, John, 483-484 Bello, Andreas, 646 Benezet, Anthony, 447 Bentham, Jeremy, 483, 487, 499, 633, 666, 650-651 Bernard, Montague, 654 Bethune, Maximilien de, 351 Bin Laden, Osama, 95 Bindusara, 237 Bismarck, Prince Otto von, 623, 670, 684 Black, Joseph, 423 Blackstone, Sir William, 423, 427, 447 Bluntschli, Johann, 21, 650, 652, 626 Bodin, Jean, 365, 413, 339-340 Bolivar, Simon, 437, 507 Bonaguise, Amelio, 328 Bougainville, Louis Antoine de, 448 Bourgeois, Leon Victor Auguste, 113, 637 Boutros-Ghali, Boutros, 91 Boyle, Robert, 407 Brandeis, Louis, 114 Briand, Aristide, 705 Brierly, James L., 24-26, 116 Brundtland, GroHarlem, 750 Brunel, Isambard Kingdom, 510 Bull, Hedley, 316

870

Index of Names Burke, Edmund, 444, 499 Burlingame, Anson, 649 Bush, George W., 96, 98, 102 Butler, Samuel, 407 Bynkershoek, Cornelis van, 52, 54, 468, 490 Cabot, John, 337 Caesar, Gaius Julius, 217-218 Calliers, Francois de, 463, 660 Calvin, John, 348 Calvo, Charles, 646, 653 Canning, George, 516, 522-525, 527-528 Cardozo, Benjamin, 114 Carelli, Arcangelo, 406 Carlyle, Thomas, 376, 509 Carter, President, 8 Cartwright, Edmund, 510 Castlereagh, Viscount Robert, 514, 520-523 Catherine the Great of Russia, 436, 460-461, 533 Catlin, George, 746 Cato, Marcus Portius, 203, 218 Caxton, William, 245 Cervantes Saavedra, Miguel de, 406 Ch’ien-lung, Emperor, 477 Chamberlain, Joseph, 540 Chanayka, 236 Chandragupta, 236 Charlemagne, 270-271 Charles the Bold, 295 Charles V of Spain, 380 Charles VIII of France, 337 Charles X of France, 531-532 Chaucer, Geoﬀrey, 299 Cheng Ho, 325-328, 405 Cheshire, Professor G.C., 118 Chiﬄet, Jean-Jacques, 467 Chou En-lai, 724 Churchill, Winston, 453 Cicero, Marcus Tullius, 110, 217-221 Clairvaux, St. Bernard of, 285, 287 Clausewitz, Carl von, 622-623 Clay, Henry, 521 Clive, Robert, 443 Coke, Sir Edward, 377, 427 Colet, John, 362 Columbus, Christopher, 245, 329-330 Commodus, 222 Comte, Auguste, 113 Confucius, 229-231, 249-251, 292

Constantine the Great, 254 Cook, Captain James, 448-450, 585, 597, 603 Cooke, William Fothergill, 613 Copernicus, Nicolaus, 323 Cortes, Hermando, 333 Crompton, Samuel, 510 Cromwell, Oliver, 453 Cruce, Emeric, 351 Cujas, Jacques, 374 Daendels, Hermann Willem, 440 Dampier, William, 447-448, 607 Darwin, Charles, 603 Dauod, Sardar Mohammed, 87 Davidson, Sir Edward, 68 de Richelieu, Cardinal Armand Jean du Plessis, 408 Deane, Silas, 491 Defoe, Daniel, 407 Deganawida, 594-595 Denning, Lord, 376-377 Descamps, Chevalier Edouard, 639 Descartes, Rene, 408 Dewey, George, 563 Dewey, John, 114, 119 Diamond, Jared, 149 Dias de Novais, Bartolomeu, 329 Dias, Dines, 329 Dickinson, Goldsworth L., 296 Disraeli, Benjamin, 540, 566, 616 Douglas, James, 601 Drake, Sir Francis, 370-372, 451 Drakon, 160 Drummond, Sir Eric, 82, 707 Dubois, Pierre, 293, 349-350 Dufour, General Guillaume Henri, 631-632 Dunant, Henri Jean, 92, 466, 631-633 Dundas, Henry, 518 Durkheim, Emile, 113 Eden, Anthony, 84 Elizabeth I of England, 385, 754 Emerson, Ralph Waldo, 746 Engels, Friedrich, 673 Erasmus, Desiderius, of Rotterdam, 245, 350, 359, 362-363 Ericsson, Lief, 325 Evelyn, John, 746 Everitt, Anthony, 219 Falk, Richard, 121

Index of Names Farquhar, Major William, 554 Fauchille, Paul, 113 Fawzi, Mahmoud, 84 Ferguson, Adam, 422, 427 Fergusson, Niall, 690, 715 Ferrier, Arnaud, 374 Field, David Dudley, 108, 650, 652 Fisher, Admiral Sir John, A., 625, 633 Fisher, Lord John, 453 Fitzmaurice, Sir Gerald, 27-28, 33, 68 Fox, Charles James, 517, 537, 540-541 Fox, George, 499 Franck, Louis, 44 Franklin, Benjamin, 425-427, 429, 431, 462, 491-492 Frederick the Great of Prussia, 459 Friedmann, Wolfgang, 71-72, 118, 692 Gaius, 224-225 Gama, Vasco de, 330-331, 438 Garner, James W., 22 Gascoyne-Cecil, Robert Arthur Talbot (3rd Marquess of Salisbury),, 573-574 Gautama, Siddhartha, 248-249 Ghengis Khan, 299-300, 472 Gentili, Alberico, 385-387, 398-401 Gerson, John de, 314 Gibbon, Edward, 207 Gilbert, Humphrey, 451 Gladstone, William, 540 Glenelg, Lord, 570 Godfrey of Bouillon, 285 Godwin, William, 540 Goodwyn, Morgan, 499 Gorbachev, Mikhail, 89 Gotlieb, Alan, 66 Gratian, 281, 375 Gregory VII, 287 Grenville, Lord, 635 Grenville, Richard, 451 Grenville, William Wyndham, 517-519 Grey, Earl (Henry George Grey). 572 Grey, Sir George, 572 Grotius, Hugo, 52, 323, 389-403, 415, 457, 462, 465, 482, 496-499, 683 Gustavus Adolphus of Sweden, 408 Gutenberg, Johann, 323

Halley, Edmund, 407 Hals, Franz, 407 Hamilton, Alexander, 430, 492, 504-505, 541, 543-544 Hamilton, Sir William, 652 Hammarskjold, Dag, 83-84, 86, 707 Hammurabi, 168, 195, 650 Handel, George Frederick, 407 Hardenburg, Prince Karl, 514 Harris, Sam, 262 Harris, Sir James, 461 Harrison, John, 449 Hastings, Warren, 443-444, 554 Hawkins, Sir John, 369-370, 451 Hazlitt, William, 540 Head, Ivan, 66 Hegel, Georg Wilhelm Friedrich, 669, 684 Henry II of England, 289 Henry IV of France, 456-457 Henry the Navigator, 328-329 Henry VII of England, 337-338, 452 Henry VIII of England, 359, 363, 384, 452 Henry, Patrick, 430 Hideyoshi, Toyotomi, 343 Higgins, Rosalyn, 120 Hildebrand (Pope Gregory VII) 272, 276 Hippocrates, 258 Hobbes, Thomas, 407, 414-415, 481, 498, 616, 622 Hobson, Governor, 604-605 Holdich, Colonel T.H., 682 Holdsworth, Sir William, 116 Holls, Frederick W., 638-639 Holmes, Oliver Wendell, 114 Homes, Henry. See Kames, Lord Howe, Joseph, 570 Huber, Max, 114 Hudson, Manley O., 10, 21-22, 25 Hull, Cordell, 701 Humboldt, Alexander von, 507 Hume, David, 132, 418, 422, 427, 499, 552 Hus, John, 314 Hussein, Saddam, 89, 96-97, 764-765 Hutcheson, Francis, 422-423, 499 Hutton, James, 423 Huxley, Julian, 746 Huygens, Christopher, 407

Habre, Hissene, 764 Hagenbach, Peter von, 295

ibn Abi Talib, Ali, 269-270 Ieyasu, Hidetada, 344

871

872

Index of Names Ieyasu, Tokugama, 344 Ihring, Rudolf von, 119 Isadore of Seville, 280-281 Iulianus, Flavius Claudius, 254 James, William, 114, 119 Jay, John, 430, 503-504, 519, 635 Jeﬀerson, Thomas, 425, 430-431, 462, 491492, 507, 528, 541, 718 Jellink, Georg, 114 Jenkins, Sir Leoline, 658 Jennings, Robert Y., 120 Jerome of Prague, 314 Jervis, Sir John, 453 John of Piano Carpini, 300 Jones, Inigo, 406 Judd, Jerritt, 588 Justinian, 267-268 Kalakaua, David, 588-589 Kamehameha I, 585-586, 598 Kamehameha IV, 588 Kamehameha V, 588 Kames, Lord, 422-424, 427-428 Kant, Immanuel, 418, 483, 485-486, 633, 671, 700 Karzai, Hamid, 95 Kasavuba, President, 86 Keith, Sir William, 426 Kellogg, Frank B., 705-706 Khomeini, Ayatollah, 8 King Tom, 565 Kluber, Jean Louis, 646 Kohler, Joseph, 119 Kublai Khan, 472 Lachs, Judge Manfred, 13, 15-16 Lafayette, Marquis de, 462, 491-492 Lagrandiere, Admiral Pierre Paul Marie Benoit de, 558 Lambton, John George (Earl of Durham), 569-571 Laplace, Pierre S., 768 Lasswell, Harold D., 115-118, 124, 433, 756-757 Lauterpacht, Professor Hersch, 26-27, 33, 114, 706 Lawrence of Portugal, 300 Lee, Arthur, 491 Lee, Richard Henry, 430 Leibnitz, Gottfried Wilhelm, 407, 418

Leick, Gwendolen, 150 Lesseps, Visconte de, 615 Lie, Trygve, 83 Lieber, Francis, 626 Light, Captain Francis, 554 Liholiho, Alexander, 588 Liholiho, Lot, 588 Liluokalami, Queen, 589-590 Lin Tse-hsu, 579-580 Lincoln, Abraham, 547 Lindsay, Sir David, 407 List, Friedrich, 673 Livingston, Robert R., 431 Locke, John, 407, 422 Lorimer, James, 652-653 Louis XII of France, 338 Louis XIII of France, 457 Louis XIV of France, 457-458 Louis XVIII of France, 531-532 Lully, John Baptiste, 407 Lumumba, Patrice, 86 Lunalilo, William, 588 Luther, Martin, 323, 348, 362 Macartney, Lord George, 478-480 McDougal, Myres S., 33, 71-72. 115-117, 119, 124, 342, 433 Mackenzie, William Lyon, 569 Mackinder, Sir Halford J., 682 McKinley, President, 638 McNair, Arnold D., 22-23 Macmillan, Margaret, 698 Macchiavelli, Niccolo, 259, 338-339, 341-342, 358, 362 Madison, James, 430, 542-544 Magellan, Ferdinand, 585 Magnus, Gnaeus Pompeius (Pompey), 218 Mahan, Admiral, 453-454 Mahan, Captain Alfred Thayer, 563-564, 625, 633, 638 Maine, Sir Henry, 423 Mainonides, Moses, 252, 257 Maistre, Joseph de, 534-535 Maitland, Frederic, 376 Malthus, Thomas Robert, 673 March, George Perkins, 746 Marconi, Guglielmo, 613, 664 Marshall, John, 430, 545-546, 596 Marsilius of Padua, 259, 294, 350 Martens, Feodor Fedorovich, 637-638

Index of Names Martens, Georg Friedrich von, 107, 467, 469470, 644-645 Martin, William A.P., 648-649 Marx, Karl, 246, 355, 533, 673 Mary Tudor, 382 Mason, George, 428, 545 Mathilda, Countess, 258-259 Mazzarini, Cardinal Giulio, 457 Mazzini, Guiseppe, 670, 680 Mehmet II, 345-346 Mencius, 230 Metternich, Prince Clement von, 514, 520 Mill, James, 650 Mill, John Stuart, 633 Millar, John, 423-424 Milosevic, Slobodan, 764 Milton, John, 407 Minto, 1st Earl of, 552 Miranda, Francisco de, 436-437 Mladic, Ratko, 764 Mo-Tzu, 232 Mondoza, Bernadino de, 358 Mondoza, Diego Hurtado de, 358 Monroe, President James, 526 Montaigne, Michel de, 362, 365, 406 Montesquieu, Charles Louis, 418, 421-422, 424, 447 Monteverde, Claudio, 408 More, Sir Thomas, 359, 362-363, 498 Morgan, Captain Henry, 442 Morgenthau, Hans J., 114, 342, 706-707 Morse, Samuel F.B., 613-614 Moser, Johann Jakob, 469 Mossadegh, Mohammed, 6-7, 84 Moynier, Gustave, 631-633, Gustave, 653 Muhammed ibn Abdallah, 260-262, 283 Muir, John, 746 Muraviev, Count Mikhail Nikolaevich, 624625, 628 Napoleon Bonaparte, 500-502, 508, 512-513, 515, 531 Nasser, Gamal Abdel, 84-85 Nelson, Horatio, 453 Nemours, Pierre Samuel Du Pont de, 492 Nerva, Marcus Coccius, 222 Newcomen, Thomas, 510 Newton, Sir Isaac, 407-408 Nicholas I, Czar, 535 Nicholas II, Czar, 628

Nicodemus of Pontremoli, 312 Nicolson, Sir Harold, 313 Nightingale, Florence, 630-633 Nurredin, 286 Ockham, William, 259, 272-273 Olney, Richard, 638 Omar, Caliph, 284 Oxenstjerna, Count Axel Gustafson, 408 Pachelbel, Johann, 406 Pahlavi, Mohammed Reza, 5 Pahlavi, Reza Shah, 5 Paine, Thomas, 430, 531 Palmerston, Lord, 522, 579 Papineau, Louis Joseph, 569 Papinianus, Aemilius, 225 Pardo, Arvid, 57-59, 62 Park, Mungo, 507 Pauncefote, Sir Julian, 638 Payens, Hugues de, 287 Pearson, Lester, 83-85 Peel, Sir Robert, 539-540 Penn, Sir William, 483-484 Perry, Commodore Matthew, 670 Peter the Great of Russia, 458-460 Philip II of Spain, 382, 452 Philip II Augustus of France, 289 Philip IV of France, 349 Philip V of Spain, 435 Pilate, Pontius, 252-253 Pillet, Antoine, 113 Pinchot, Giﬀord, 747 Pinochet, Auguste, 764 Pitt, Thomas, 537 Pitt, William (the Elder), 478, 537 Pitt, William (the Younger), 516-520, 523, 538, 540 Pizarro, Francisco, 334-336 Plato, 182 Pliny, 745-746 Podiebrad, George, 294, 350 Polo, Marco, 300-301, 327 Polo, Matteo, 300 Polo, Niccolo, 300 Posner, Richard, 122 Potemkin, Count, 461 Ptolemy, 327 Pufendorf, Samuel, 415-416, 422, 466 Purcell, Henry, 406

873

874

Index of Names

Quesnay, Francois, 424, 492 Rabelais, 406 Rachel, Samuel, 467-468 Raﬄes, Sir Thomas Stamford, 440-442, 552, 554-555 Rahman, Abdul, 87 Raleigh, Walter, 451 Raymond of Penafort, 281 Raymond of St. Gilles, 285 Rayneval, Gerard de, 645 Reagan, Ronald, 712 Rebecque, Baron d’Estournelles de Constant de, 639 Reid, Thomas, 427 Reisman, Michael, 119 Rembrandt, 407 Renaudet, Augustin, 361 Renault, Louis, 113 Rhee, Syngman, 78 Ricci, Matteo, 347, 476-477, 649 Richard I of England, 289 Richards, William, 586 Richelieu, Cardinal, 457, 463 Rizal y Mercado, Jose, 563 Robertson, William, 422, 427 Roe, Sir Thomas, 442 Rolin-Jaequemyers, Gustave, 107-108 Roosevelt, President Franklin D., 701 Ross, Alf, 114 Round, Roscoe, 114, 119 Rousseau, Jean-Jacques, 418-421, 483, 485486, 499, 531 Rubens, Peter Paul, 406 Rush, Benjamin, 427, 429, 447 Rush, Richard, 527 Russell, Lord John, 570 Sadra, Mullah, 346 St. Augustine, 255-256, 279-280, 397 St. Dominic Guzman, 380 St. Ignatius Loyola, 383 St. Stephen, 253 St. Thomas Aquinas, 256-258, 281 Saint-Pierre, Abbe de, 483-485 Saint Simon, Comte de, 483, 487-488 Saint-Simon, Louis de Rouvray, 666 Saladin, 286-288 Saul, John Ralston, 745 Savery, Thomas, 510

Savigny, Friedrich Karl von, 423 Scarlatti, Alessandro Gaspare, 406 Scarlatti, Domenico, 407 Scelle, Georges, 114 Schachter, Oscar, 120-121 Schwartzenberger, Georg, 114, 342 Scott, Peter, 746 Scott, Sir William, 655, 658 Selden, John, 52, 496-497 Seneca, Lucius Anneaus, 110, 131, 221-222 Seward, William, 598 Shah, King Mohammed Zahir, 87 Shaka, 568 Shakespeare, William, 406 Sharpe, Granville, 447 Sheridan, Richard, 444 Sherman, Roger, 431 Sigismund, Emperor, 314 Silva Valesquez, Diego Rodrigo de, 406 Slaughter, Anne-Marie, 122 Smith, Adam, 422, 424-425, 427, 447, 499, 508, 672-673 Smith, Samuel, 630 Solon, 160-161 Sombart, Werner, 354 Stammler, Rudolf, 119 Stephenson, George, 510 Stephenson, Robert, 510 Stewart, Dugald, 427, 652 Stone, Julius, 118-119 Story, Joseph, 547, 658 Strabo of Amasya, 327 Suarez, Francisco, 110, 383-383, 398, 400, 402 Suchard, Philippe, 631 Taksin, General, 444-445, 559 Talleyrand, Prince Charles Maurice de, 513 Tamerlane, 472 Taraki, Nur Mohammed, 87-88 Tarazi, Judge, 13 Taylor, Charles, 764 Thant, U, 86 Thayer, Alfred T, 682 Thoreau, Henry, 746 Thorvaldsson, Eric, 325 Thucydides, 188, 190 Tocqueville, Alexis de, 533, 716, 718 Toynbee, Arnold, 180 Trajanus, Marcus Ulpius, 222 Trevithick, Richard, 510

Index of Names Trudeau, Pierre Elliot, 65-66 Truman, Harry S., 78 Tschombe, Moise, 86 Tunkin, Georgii, 692 Turgot, Anne Robert Jacques, 492 Tutu, Desmond, 764 Twiss, Sir Travers, 659 Ulpianus, Domitus, 225 Urban II, 276, 284 Urban VIII, 498 van Dyck, Anthony, 407 Vancouver, Captain George, 586 Vattel, Emmerich de, 417-418, 481, 483, 490 Veblen, Thorstein, 114 Vega, Lope de, 406 Verbiets, Ferdinand, 477 Victoria, Queen, 509 Vischer, Charles de, 114 Vitoria, Francisco de, 110, 380-382, 396-397, 402 Vladimiri, Paulus, 314, 403 Voltaire, 407, 418, 420-421, 499, 531 Wallace, George, 447 Wallenstein, Count, 408 Wallis, Captain Samuel, 449 Walpole, Sir Robert, 536 Washington, George, 429, 431, 491-492, 507, 718 Watt, James, 510 Weatherford, Jack, 299

Weber, Max, 36, 354 Wedgwood, Cicely V., 410 Wenck, Friedrich August Wilhelm, 467 West, Benjamin, 426 Westlake, John, 654 Wheaton, Henry, 107, 583, 647-648 Wheatstone, Charles, 613 White, Andrew Dixon, 638 Wight, Martin, 396 Wiktor, Christian, 612 Wilberforce, William, 447 Wilcox, Robert W., 589 William of Ockham, 259, 272-273 William of Orange, 453 William the Silent, Prince of Orange, 388 Wilson, James, 430 Wilson, President Woodrow, 75, 82, 697, 700, 707, 721, 759 Winthrop, John, 718 Witherspoon, John, 427 Wittfogel, Karl, 274 Wolﬀ, Christian, 416-417 Wolsey, Cardinal, 359, 363 Wren, Sir Christopher, 406, 408 Wycliﬀe, John, 314 Wythe, George, 430 Xavier, Francis, 347 Xenophanes, 181 Zafar, Bahadur Shah, 553 Zorn, Philipp K.L., 639

875