Tradition in modernity

Less than two months after the capitulation at Munich, on November 16, 1938, Hersch Lauterpacht delivered an address to the League of Nations Union of his new academic home, Cambridge University, on the general subject of the League. He started the address by confiding to his audience that this was a topic on which he felt so strongly as to be unable to trust the “freely spoken word” and that in order to maintain restraint and deliberation, he would read from a manuscript, as was not his custom. Nonetheless, the address departs from Lauterpacht's customary, detached and complicated, somewhat dry English at several points, most notably when, slightly after the middle, he switches over to the first person plural. The address opens with the argument that the events of the 1930s – the Manchurian and Abyssinian Wars, the Munich accords – and the attitudes taken by key League members have meant that the Covenant's collective security provisions, the territorial guarantee (Art. 10) and the obligation of collective response (Arts 15 and 16), have fallen into desuetude. In the fulfillment of its principal objective, the League has failed. All that remains is the hope – asserted without conviction – “that the true spirit of man will assert itself in the long run.”

Surveying the state of international law at the turn of the century, Enrico Catellani (1856–1945), Professor at the University of Padua and member of the Institut de droit international gave a gloomy view of the situation. If there was one tendency, he wrote, that was evident from the first moments of the new century, it was the increasing use of force in the determination of the fate of peoples. The law was moving away from the mid-nineteenth-century ideals of justice and equality. No doubt, there had been many developments in a positive direction: the increase and technical improvement of treaty law and private international law, progress in arbitration and the emergence of functional international cooperation. These developments were, however, overweighed by negative ones. No real international society had come to existence beyond Europe and the fundamental rights of peoples or States were no better protected than a century before. Europeans still acted from a position of superiority towards others: capitulation regimes, consular jurisdiction, and brutal colonial wars had become banal aspects of the international everyday. Advancing civilization oppressed and impoverished indigenous populations to the point of extinction – a fact accepted by imperial powers as an inevitable consequence of modernity. Even in Europe, powerful States had set up a permanent reign of control over the continent so that smaller powers enjoyed less autonomy than ever. All in all, Catellani exclaimed, the nineteenth century had closed with imperial domination, methodological enslavement of populations, and war.

There once was a professional gentleman, a barrister who divided his leisure between educating his two sons and furthering the welfare of his people. As he grew older, he saw progress divide its fruit very unevenly around himself. On the one hand, it offered marvellous opportunities for political liberation and personal autonomy; on the other hand it undermined familiar truths and traditions. The virtues of character that had seemed such reliable guides for personal and public lives – charity, reasonableness, courage in the face of adversity – were increasingly ridiculed as the symbols of the corruption of an ancient world.

He decided to learn philosophy and the new sciences of society so as to understand what tradition and experience had failed to teach him. Why were people prepared to go to such lengths in defense of extreme views on matters that had earlier been thought to have been regulated by reason and good sense? He did not precisely wish to become a philosopher or a sociologist but hoped to find intellectual reassurance and perhaps a more efficient platform from which to continue his civilizing activities.

As the sons grew up, they learned that none of this had really worked. The father had to quit his welfare activities, partly because they seemed to have no effect on his clients who were either joining extremist causes or sinking deeper into apathy, partly because they threatened his own livelihood. In an increasingly difficult economic situation, he retired a poor man.

On April 28, 1965 President Lyndon B. Johnson disclosed that 400 US marines had landed in the Dominican Republic “to give protection to the hundreds of Americans who are still in the Dominican republic and to escort them back to the country.” In a few days with the ostensible support of the Organization of American States (OAS) the evacuation turned into a large-scale invasion by more than 20,000 troops to prevent an elected leftist government from taking power. In May President Johnson justified the operation by the need to “prevent the emergence of another Cuba in the Western hemisphere.” As he later remarked, “the danger of a Communist take-over in the Dominican republic was a real and present one … a communist regime in the Dominican republic would be dangerous to the peace and security of the hemisphere and the United States.” In connection with the Cuban situation, the United States had already earlier been able to persuade the OAS that the adherence of any of its members to “Marxism–Leninism” would trigger the right of self-defense, interpreting “communism” as equivalent to “armed attack” under Art. 51 of the UN Charter. As the marines were landing in the Dominican Republic, the Legal Adviser of the State Department, L. C. Meeker, asserted a general right to use military force by the United States in the Western hemisphere against “foreign ideologies.”

The essays in this book are inspired by many sources and reflect various conversations I have had with international lawyers in the course of the past four years or so. The initiator of the idea of the book was Professor Sir Elihu Lauterpacht, who kindly invited me to give the Sir Hersch Lauterpacht Memorial Lectures at the University of Cambridge in 1998, and in that connection pointed out that this privilege also involved a commitment to prepare the lectures for publication. Eli's hospitality in Cambridge in 1997 and the discussions I had with him also underlie my interpretation of his father's work in chapter 5. As always, I am indebted to Professor David Kennedy from the Harvard Law School for innumerable conversations and collaborative projects, Dighton weeks and weekends, shorter and longer periods together and in wider company in the Boston area, Helsinki and other places, at various stages of writing of these essays. But the only person to have read the whole of this work, and whose comments and criticisms are reflected on every page, as in everything about its author, is Tiina Astola. This book would not exist without them.

Many other friends and colleagues have been involved. The comments and work of Dr. Outi Korhonen are reflected in the description of the culture of late nineteenth-century internationalists.

“Here is a tranquil and charming village in a small peaceful State: its canals slumber in the calm of justice, interrupted only by a horizon of mountains whose snowy peaks inspire properly elevated thoughts. This is the chosen seat for elected international public power.” In this setting (which is not difficult to recognize as Rousseau's imaginary Geneva) we see the Parliament of Nations, “this immense and luxurious building, with spacious galleries, rich bibliographies, numerous bureaux of commissions,” together with a “smaller, though still imposing palace of the International Governmental Commission, or, more properly, of the Administrative Commission.” On both sides of a large boulevard there arise the offices of the ministries: an International Administration of Finances, a Customs Commission, a Monetary and Finances Commission, the headquarters of international postal administration, railways, straits, the great international rivers … There is also the building of the Ministry of Colonies “for care over races under trusteeship has been confided to the Society of Nations itself.” Still other facades appear: “at the end of the avenue, perpendicular to other buildings, very visible and in a much more sombre style lies that of the Directorate of International Armed Forces.” “But the veritable engine of the international society is the administration of justice. Here it finds the preponderant place which it has lost in so many States … The International Court of Justice, chosen initially from lists of candidates proposed by States, has become thereafter completely independent.

An observer of international politics in the 1860s with liberal sympathies could not fail to be disturbed about the apparent coincidence of two facts. The preceding half-century had constituted one of the longest periods of peace in European history, punctured only by occasional and limited military conflict in the margins. The long calm had created conditions for an unprecedented economic growth whose fruit may have been unevenly distributed but seemed tangible enough as proof that European civilization had been launched on an irreversible march towards economic and spiritual progress.

On the other hand, peace had been created and enforced through a pact among five Great Powers, three of which (Austria, Prussia, and Russia) were governed by absolutist monarchs whose main motive for co-operation seemed to be their shared wish to curb any proposal for representative government or increased franchise.

“[T]he victorious war is the social ideal: the victorious war is the ultimate means for every highest objective. In war the State demonstrates its real being, it is the fullest proof of the special quality of the State … In the victorious war legal thought sets the ultimate norm which decides which State has Right on its side … Who can, may also.” These are certainly among the most frequently quoted sentences from Erich Kaufmann's (1880–1972) 1911 book Das Wesen des Völkerrechts und die Clausula rebus sic stantibus which expounded a theory of the total State as Europe's historical and spiritual reality. For Kaufmann, a conservative legal theorist and a practitioner – including being a legal adviser at the foreign ministry of the Federal Republic in the 1950s – and a member of the Institut de droit international, the view of international law as superior to the State emerged from an unhistorical moral nihilism. Because the State – and not the shallow and discontinuous realm of the cosmopolitan – was the concrete enfolding of human spirituality, international law could never aspire to a normativity higher than the State. Useful as a mechanism of co-ordination, international law possessed no intrinsic value, represented no world-historical process of enlightenment or transcendence. No social ideal was embedded in it.

This book grew out of the Sir Hersch Lauterpacht Memorial Lectures that I gave at the University of Cambridge in the fall of 1998. It is, admittedly, quite a bit longer than those original lectures were, but it is still informed by the same interest. This was to expand upon an article I had written a year earlier on Hersch Lauterpacht himself for the European Journal of International Law and in which I had attempted to cover the same ground I had done in a book ten years earlier, but from an altogether different perspective. In that book I had described international law as a structure of argumentative moves and positions, seeking to provide a complete – even “totalising” – explanation for how international law in its various practical and theoretical modes could simultaneously possess a high degree of formal coherence as well as be substantively indeterminate. The result was a formal–structural analysis of the “conditions of possibility” of international law as an argumentative practice – of the transformational rules that underlay international law as a discourse – that relied much on binary oppositions between arguments and positions and relationships between them. But as perceptive critics pointed out, whatever merits that analysis had, its image of the law remained rather static.