I Actors, 2 States: Rise and Decline of the Primary Subjects of the International Community
Edited By: Bardo Fassbender, Anne Peters
- Colonization / Decolonization — Sovereignty — States, formation, continuity, extinction
The international community in its modern shape is contemporaneous with the consolidation of States. States gradually evolved in Europe between the 12th and the 16th centuries. Modern States arose in England, France, Spain, and Portugal, consisting mainly of centralized power structures wielding exclusive political and moral authority as well as a monopoly of force over a population living in a more or less vast territory. According to the historian JR Strayer, what characterizes the modern State and differentiates it both from the ‘great, imperfectly integrated empires’ of the past and the ‘small, but highly cohesive units, such as the Greek city state’ are a few notable characteristics: ‘the appearance of political units persisting in time and fixed in space, the development of permanent, impersonal institutions, agreement on the need for an authority which can give final judgment, and acceptance of the idea that this authority (p. 50) should receive the basic loyalty of its subjects’.1 At that time, States were monarchies exercising a few prerogatives: making laws, commanding an army, setting up courts of justice, levying taxes, and ensuring law and order in the country through the use of centralized enforcement agents. These States were few in number, the overwhelming space of the world community—particularly outside Europe—being made up of hundreds of communities subject to local overlords.2 The power of these emerging States was to some extent overshadowed by the two central potentates: the emperor, at the head of the Holy Roman Empire, and the Pope, at the head of the Catholic Church.
It is only around the peace of Westphalia (1648), which put an end to the sanguinary Thirty Years War, that the modern State emerged as an international subject and the international society took its current shape.3 States now show the following commonalities. First, they are all ‘sovereign’, in that they do not accept nor are they prepared to bow to any superior authority (superiorem non recognoscentes); in 1836, Wheaton would term them ‘separate political societies of men living independently of each other’,4 adding that ‘[a]s independent communities acknowledge no common References(p. 51) superior, they [the States] may be considered as living in a state of nature with respect to each other’.5 Sovereignty had been defined and theorized in 1576 by Jean Bodin6 and was identified as the major feature of modern States by Hobbes (for whom it was a necessary condition for the existence of States, for it is ‘an artificial soul, as giving life and motion to the whole body’).7 The quintessence of sovereignty resided in the exclusive authority to impose and enforce commands on any individual living in a territory belonging to the sovereign. As the leading Italian publicist and politician Vittorio Emanuele Orlando (1860–1952) stated in 1923, the famous Cartesian dictum, if applied to States, should sound as follows: iubeo, ergo sum (I command, hence I exist).8
Second, States, although they may be and indeed often are markedly different in size, population, economic, and military power, are all ‘equal’ in the legal sense: as Vattel would later comment (in 1758), ‘a dwarf is as much a man as a giant; similarly, a small republic is no less a sovereign state than the most powerful kingdom’.9
Third, strikingly, each of these States pursues its own political, economic, and military interests and does not share any interest with other States, except for momentary alliances dictated by transient political or military motivations. Each State is a monad living by itself and ready to link up with another State only to the extent that this serves its own interests. In this respect, Nietzsche's proposition that States are ‘the coldest of all cold monsters’ (das kälteste aller kalten Ungeheuer),10 is apposite. The international community in most of the modern era, then, has not been a community proper, but rather a cluster of entities, separate and unconnected, which have been compelled by historical reasons to somehow live together in an uneasy cohabitation. This disjointed community reminds me of the figures of some paintings by El Greco (1541–1614) or, even more, by the Italian Alessandro Magnasco (1667–1749) where each character lives by himself in his own abstract solitude. Perhaps the only common concern was that of fighting piracy. This concern, however, only gave rise to the general authorization to capture and try pirates, whatever their nationality, and whoever their previous victim. In this respect, the position of the international community can be compared to a densely wooded area inhabited by groups of families, in which fires frequently break out: no coordinating authority is established, no common action is envisaged, let alone a fire brigade with commonly owned fire-extinguishing appliances; rather, each inhabitant puts out by himself and with his own means any fire licking his house and does not care about fires threatening other houses; when progress over the years is made, it only consists of the spontaneous (p. 52) formation of charitable groups, which succour the old, the weak, and the handicapped, to help them extinguish the fires menacing their life and assets.11
It should nevertheless not be surprising that in that period, the State was regarded as the only and the best-suited subject of the international community. As the leading Italian jurist and politician Terenzio Mamiani (1799–1885) wrote in 1860, ‘the state is the perfect individual of the universal city or republic’ (l’individuo perfetto della città o repubblica universale).12
How many States made up the international community in the early period? Few: most of them were European (England, Spain, France, the Netherlands, Sweden). Powerful States outside Europe were the Mogul Empire in India, the Ottoman Empire, Persia, and China. The European States were, however, much stronger and moulded the international standards of behaviour. Initially, they distinguished themselves from non-Christian States, and often used for those States the term ‘barbarian’, whereas for themselves they used the term ‘civilized’. European States had a common religious matrix (they were all Christian nations), a common economic mould (they were all the outgrowth of capitalism), and a common political structure (they embraced absolutism, to be replaced in subsequent centuries by parliamentary democracy).13 Thanks to the early progress of their economic and social development and to the consequent formation of a strong middle class, European States set the tone of the international community for many centuries. Paraphrasing what Hegel wrote with regard to southern Europe, one could say that Europe was the ‘theatre of world history’ (das Theater der Weltgeschichte) and that there, the ‘world spirit’ (Weltgeist) found its home.14
(p. 53) European States also engaged in strong expansionism, which would fundamentally shape the structure of international relations. They developed two distinct classes of relations with the outside world. With states proper (the Ottoman Empire, Persia, Thailand, China, Japan, etc.), they based their relations on the ‘capitulation system’, a blatantly unequal legal regime. Capitulations were agreements that tended to grant European countries non-reciprocal privileges (among other things, Europeans could not be expelled from a country without the consent of their consul; had the right to practise worship and build churches; enjoyed freedom of trade and commerce, and were exempted from certain import and export duties; could not be the object of reprisals, especially in case of insolvency; and were not subjected to the territorial courts in the event of disputes between Europeans, but to the jurisdiction of the consul of the defendant or the victim). The other class of foreign countries, namely those that did not even possess the legal trappings of states proper (as recognized by the European States), were considered by the European countries to be mere objects of conquest and appropriation, and were consequently turned into what were later regarded as colonial territories.
Sovereign States (and most notably European States) also classified other States within categories that denoted their minor status. Thus, they first spoke of ‘vassal States’ and ‘tributary States’. According to the prevailing opinion, there was a relationship of ‘suzerainty’ between a sovereign State and a tributary vassal State, in that the latter only enjoyed a limited control over domestic affairs, while foreign affairs were run by the sovereign State.15
More significant was the later contrast between sovereign States and ‘colonial nations’ or ‘colonial countries’, or simply ‘colonies’. These terms designated those populations which had been subjected to the political and military domination and economic exploitation of European States. These countries, with the passage of time and the changing historical conditions, then became ‘dominions’ or ‘States under protectorate’, then ‘dependent’ countries, or ‘trust territories’. These variations in terminology were meant to indicate gradations in the dependency of those countries on the authority of the dominant Western States. The fact remains that from the inception of the world community until the end of the decolonization process (1970s) there have existed two categories of States, those endowed with full sovereignty (European countries, plus the United States, and later on China, Japan, the Soviet Union, and so on), (p. 54) and those that were subjected to European countries. It is a victory of the modern international community that different categories of States no longer exist in law. Today, the distinction between industrialized and developing countries only refers to their economic structure and output, not to any differentiation in legal status.
What characterized the first centuries of development of the international community was the sole presence of States as actors on the international scene. Peoples and individuals had no say, and individuals were only objects of state power, either as nationals, or as foreigners, or as pirates (emphatically designated with the expression of hostes humani generis).
Another striking feature of the world community in this initial stage (and until the 19th century) was the paucity of legal rules regulating international intercourse. States were both unable and uninterested in agreeing upon common standards of behaviour. There only existed a core of rules: those on the conclusion of treaties; the exchange of, and the rights and privileges accruing to diplomats; the free use of the high seas; the capture of pirates; and the resort to force (admissible both to protect one's own interests and to vindicate one's rights); as well as some rudimentary rules of warfare. The major powers were content with this modicum of norms, for the paucity of rules reserved for States maximum discretion. Small States, which would have been interested in the protection of law, were unable to impose any rule, since at that stage international legal standards were posited either by treaty (and no major power would have ever concluded a treaty limiting its ‘privileges’) or by custom, which in that period was conceived of as tacit agreement (pactum tacitum), hence not susceptible to evolve if major powers opposed it. What is even more striking is that there was no mechanism for law enforcement, except for war (by powerful States against other powerful countries or smaller States).16
(p. 55) It is also unique to this period that States emphasized three fundamental rights: the right to self-preservation, the right to self-defence, and the right of intervention,17 to which one should also add the right of independence (as Mamiani wrote, ‘every real state is free and inviolable vis-à-vis all peoples and all states’).18 Since these rights were regarded as ‘absolute’, their proclamation boiled down to the assertion of an unfettered use of force any time a State found it expedient to attack another State and appropriate its territory. The law of that period was pithily epitomized by Montesquieu in 1748, when he wrote that ‘[t]he object of war is victory; that of victory is conquest; and that of conquest preservation. From this and the preceding principles all those rules are derived which constitute the law of nations.’19
What was common to all nation-states was the threat of civil wars. Hobbes aptly epitomized the tension between the sovereign State and insurgency by contrasting the Leviathan to Behemoth:20 two Molochs, one symbolizing the State, and the other what Kant later called ‘an internal illness of the state’,21 namely civil war, or the attempt to break up the structure of sovereign States.22 It is indeed no coincidence that no international rule evolved on civil wars while States dominated the structure of the international community, the matter being generally regarded as exclusively domestic and to be dealt with only by internal methods (rebels being seditious criminals to be killed or hanged). Under this State-centric perspective of international law, third States must keep aloof from civil wars in other States: as noted by Wheaton, ‘[u]ntil the revolution is consummated, whilst the civil war involving a contest for the government continues, other states may remain indifferent spectators of the controversy’.23
(p. 56) 6. Evolution of the Domestic Structure of States and of National Doctrines: their Ramifications for the International Society
The substantially authoritarian structure of European States did not change until the 19th century. Thus the architecture of the international society remained largely static until the upheaval in the internal State structures or the emergence of new political doctrines, starting in the late 1700s.
The first major impact of domestic changes on international relations was the French Revolution (1789). The violent removal of aristocracy, the proclamation of the ideals enshrined in the Declaration of the Rights of Man and of the Citizen, and the formation of the new middle classes keen on economic development free from any traditional trammels meant that France propounded new ideals as a participant in international relations as well: sovereign equality among States, self-determination of peoples as a concept guiding any transfer of territory, the prohibition of interference in internal affairs of other States, the ban on wars of aggression or conquest, the prohibition of slavery, as well as the principle of armed intervention in favour of oppressed peoples.24 For all the talk, the reality of France's actual conduct did not change dramatically. For instance, full implementation of the new values would have entailed the end of French colonialism and slavery. However, when it turned out that those principles clashed with the interests of French planters in the colony of San Domingo, the French Assembly in March 1790 passed a resolution stating that the constitution framed for France was not intended to embrace the internal government of French colonies. A liberal decree passed on 15 May 1791 was also repealed on 24 September of that year because the Paris Assembly feared it would lose the colony. In short, the ideals proclaimed by the French Revolution did not have an immediate bearing on the French attitude to other States or on its dealings with other international subjects. Those ideals instead primarily constituted a leaven destined to transform international dealings in the long run, changing the general ethos and the outlook on the State and the international society. It is no coincidence that Kant wrote in 1795, shortly after the Revolution, that ‘a state is not, like the ground on which it has its seat, a piece of property (patrimonium). It is a society of men which no one but itself is called upon to command or to dispose of.’25
(p. 57) Second, the doctrine of nationalities propounded by the Italian politician and lawyer Pasquale Stanislao Mancini (1817–88) in 1851 considered the nation rather than the State as the real linchpin of international relations. In his view,26 a nation, if it does not manage to achieve unity and independence by acquiring statehood, remains a lifeless body, a mere natural reality which, although ineradicable, is devoid of any vitality. This doctrine essentially asserted that any nation should be able to become a State, with a twofold consequence: (i) nations scattered among multiple States (such as Italy before its unification in 1860) should be united in one State only, whereas (ii) States embracing more nations (such as the Ottoman or the Austro-Hungarian Empires) should break apart so that each nation would constitute a separate and distinct State. This doctrine did have a considerable impact on the redistribution of power in the world community, in that it led to the formation of new States by either the merger of existing scattered States (this was the case of Italy and Germany) or the break-up of multinational States (as was the case with the Ottoman and the Austro-Hungarian Empires). Thus, the doctrine influenced the internal structure of some States (states became real nation-states), but this development did not affect the attitude of the new States towards the international community.
A third doctrine was destined to have a considerable influence on the structure of international relations, more than on the domestic structure of States. This is the doctrine of self-determination proclaimed by the leading Russian politician Vladimir I Lenin (in 1916–17) on the one hand, and by the US President Woodrow Wilson (in 1917–18) on the other.27 This doctrine, which Georges Scelle termed ‘a formula of collective freedom and human progress’,28 was conceived of quite differently by the two political leaders. For Wilson, it meant democracy at home and the need to take into account the aspirations and claims of colonial peoples,29 whereas for Lenin, self-determination meant the break-up of multination empires and the end of colonialism. These were two markedly different views: one moderate, chiefly (p. 58) hinging on internal self-determination (democracy), the other instead radical, primarily addressing the issue of external self-determination. While Wilson's views were aimed at spreading democracy and self-government within the various States, Lenin's postulates were intended to subvert the existing interstate relations. It should not be surprising that the US Secretary of State Robert Lansing wrote that Lenin's programme threatened ‘the stability of the future world by applying the self-determination principle to the colonial world’, and went on to note that ‘however justified may be the principle of local self-government, the necessities of preserving an orderly world require that there should be a national authority with sovereign rights to defend and control the communities within the national boundaries’.30
Which of the two doctrines had a greater impact on the domestic structure of States and the attitude of States towards the international community? Both doctrines exercised a significant influence, but only in the long run. Lenin's principles eventually contributed to the gradual decline of colonialism (1950–70), while Wilson's principle of self-government helped spread the notion of internal self-determination as the free and genuine choice of government by the whole people (see common article 1 of the UN Covenants on Human Rights of 1966).
Another radical domestic change that might have had a great bearing on the structure of States and international relations was the Russian Revolution (1917). This revolution created a striking cleavage in the international society. Although some members of that society (such as the Ottoman Empire, Japan, Persia, Siam, China) had a different economic and ideological outlook to that of European States, they had actually yielded to the Christian bloc's market economy. The Russian Revolution broke this trend, by proclaiming an ideology and a political philosophy radically at odds with those upheld by the other nations. At the international level, the Soviet Union propounded three principles: (i) self-determination of people, chiefly as anti-colonialism; (ii) the substantive equality of all States (hence the repudiation of unequal treaties or of treaties imposing onerous economic conditions or commercial terms on small countries); and (iii) the partial rejection of international law, chiefly treaty law unacceptable to the Soviet ideology and interests.
It was only in the long run that the Russian Revolution would bear its fruits at the domestic level (when, after the Second World War some Eastern European countries turned to communism under Soviet pressure or threat), as well as at the international level (with the demise of colonialism after that war, and the gradual insistence of developing countries on the need for real and effective equality between States).
References(p. 59) 7. Attempts by Small States to Restrain the Hegemony of Economically and Militarily Strong States
In the 19th century, two distinguished representatives of a Latin American state, Argentina, tried to set limits to great powers’ dominance. Both attempts ended in failure.
The first effort was instigated by the Argentine jurist and politician Carlos Calvo (1822–1906) in the middle of the 19th century.31 Many Latin American States began to insert into concession contracts with foreign nationals a clause (called a Calvo clause after the Argentine statesman), which stipulated that, in the event of a dispute arising out of a contract, foreigners relinquished the right to request the diplomatic and judicial protection of their own national State and agreed to have the dispute settled by local courts. The clear intent was to limit the legal and political intervention of Western capital-exporting countries, which often used the right to enforce contracts with Western nationals as a pretext or occasion for political pressure or even armed intervention in Latin American countries. The attempt was ill-fated. Numerous international courts and claims commissions ruled that the Calvo clause was legally invalid or ineffective, since States could not be deprived by virtue of a contract between a State and a foreigner of their international right—deriving from an international customary rule—to protect their nationals. Hence, the clause was set aside or downgraded to a superfluous proviso requiring exhaustion of local remedies before the initiation of international action.
Another attempt was made by the Argentine Foreign Minister Luis María Drago (1859–1921) in the early 20th century. States, having an unfettered right to resort to force either to vindicate their rights or to protect their own interests, often used military power to forcibly recover payments due by foreign States to their nationals who had invested money in those foreign countries. Indeed, in 1902, Great Britain, Germany, and Italy used force against Venezuela on the basis of compensation due for damage caused to nationals of the three European countries during the civil war which had raged from 1898 to 1900, and for Venezuela's seizure of fishing boats and other commercial ships, as well as to repay loans made to Venezuela for the building of its railway. The three European countries, considering the settlement proposed by Venezuela unacceptable, sank three Venezuelan ships, bombarded the locality of Puerto Cabello, and instituted a naval blockade of the coasts of Venezuela. Venezuela caved in. However, on 29 December 1902, Foreign Minister Drago sent a note to the United States on behalf of the Argentine government, in which he claimed that the Europeans’ armed intervention, in addition to running counter to the Monroe Doctrine, (p. 60) could not be justified, since ‘the collection of loans by military means requires territorial occupation to make them effective, and territorial occupation signifies the suppression or subordination of the governments of the countries on which it is imposed’.32 The US Secretary of State John M Hay responded with a lukewarm note of 17 February 1903, substantially dismissing the Drago Doctrine and siding with the European countries. Thus that Doctrine fell into oblivion for a few years. Then, at the 1907 Hague Peace Conference, when Drago resuscitated the doctrine, the US delegate Horace Porter watered it down by convincing the conference to adopt a convention which allowed resort to force, but only upon non-acceptance by the debtor State of international arbitration, or by its failure to carry out an arbitral award. Significantly, no European State ratified the convention, thereby conveying the notion that even given this emasculated form of the doctrine, those States were not prepared to restrain their own powers.
Thus, initial attempts to restrain the hegemony of great powers ended up in total failure.
I have noted above that, until the 19th century, international law constituted a core of legal standards that attributed great latitude to States in the conduct of their foreign affairs, and substantially refrained from regulating most matters relating to international intercourse. Since the end of the 19th century, however, States have become aware of the need for a detailed regulation of at least some major aspects of their international relations, and they set in motion normative processes to achieve this purpose. Two different paths were taken: drafting or promoting collective treaties on some major matters, and soliciting a contribution to the clarification and development of customary law through arbitral courts and tribunals.
First of all, States pushed for international diplomatic conferences aimed at agreeing upon some set of rules applicable to all participant States. One of the major problems in need of extensive legal regulation was war. The Brussels Conference of 1874 on the laws of warfare (attended by fifteen States, including all the European powers and Turkey, but not China, Japan, and the United States) ended in failure, for the final text did not become a binding treaty. The 1899 Hague Peace Conference (attended by (p. 61) 27 States, including the European countries plus China, Iran, Japan, Mexico, Thailand, Turkey, and the United States) was instead successful, and managed to bring about leading texts not only on war, but also on the peaceful settlement of disputes. The subsequent Hague Conference of 1907 (attended by 44 States, including all the States that had been at The Hague in 1899, plus Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Nicaragua, Panama, Paraguay, Peru, Uruguay, Venezuela) revised, ameliorated, and broadened the scope of those treaties.
It should be added that a major impulse to the codification of existing customary law or to the development of new rules came from an academic institution that in the 19th and early 20th centuries played a conspicuous normative role: the Institut de droit international (founded in Ghent, Belgium, in 1873), which adopted important resolutions on many crucial matters in need of regulation. Thus almost every year, one or more aspects of war and neutrality were touched upon, culminating in the Oxford Session of 1880, when the Institut adopted the famous Oxford Manual on the War on Land. Other matters included the international arbitral procedure (1875 and 1879), the admission and expulsion of foreigners (1888 and 1892), State immunity (1891), extradition (1892 and 1894), the territorial sea (1894), diplomatic immunities (1895), consular immunities (1896), the responsibility of States for damages to foreigners caused by a civil war (1900), and the rights and duties of States towards the incumbent government in the event of insurrection (1900). All these resolutions, followed by many others in the following years, suggested new ideas or propounded constructive and forward-looking interpretations of existing principles or rules so as to prompt States to at least clarify and update the law, but more often to fill gaping lacunae in the existing law.
Another major contribution to filling gaps came from case law. In this respect some cases stand out for their particular relevance to the development of international law: the Alabama Arbitration (1872), the Tinoco Case (1923), the Lotus Case (1927), the Island of Palmas Arbitration (1928), and the Naulilaa Case (1928). In each of these cases the arbitrator(s) either clarified existing principles, or incrementally developed the law by enunciating rules or principles previously never articulated in so many words. In the Alabama Arbitration, the United States had put forward a string of claims for damages against Great Britain for the assistance given, in breach of neutrality, to the cause of the Confederacy during the American Civil War (1861–65).33 The Arbitral Court upheld the US claims in 1872, applying the three rules on neutrality laid down in the arbitration treaty and pronouncing on the law of neutrality.34 The Tinoco Case (Costa Rica v Great Britain) is important because the arbitrator (the US statesman William H Taft) clarified the law concerning the identity and References(p. 62) continuity of governments and the value of recognition of governments.35 The Lotus Case (France v Turkey) made an important contribution to the notion of sovereignty and the extension of criminal jurisdiction of States.36 The arbitral award by Judge Max Huber in the Island of Palmas Case (United States v The Netherlands) concerned the sovereignty over a tiny island, of scant value, located within the Dutch East Indies. The question was whether a territory belongs to the first discoverer, even if he does not exercise authority over it, or rather to the State which actually exercises sovereignty there. The award is a major contribution to the determination of the notion of territorial sovereignty, its nature, its content, and the ways sovereignty can be acquired.37 Finally, the Naulilaa Case (Portugal v Germany) determined the conditions to be fulfilled for lawfully resorting to armed reprisals in time of peace.38
Although, as noted above, sovereign States have always constituted monads eager to look after their own interests and unmindful of collective needs, let alone universal values, some attempts have been made by them to set up some form of collective arrangement for protecting joint or common interests. There are four such endeavours. Most of them have ended up in failure, or at least in very minor success.
The first move to devise a collective system designed to restrain the powers of sovereign countries and enforce the law was made at the very outset of the international community, namely in 1648, with the Treaties of Westphalia. Article 123 of the Treaty of Münster provided that, faced with a threat to peace or any other serious violation of the law, the victim State must not resort to war but should ‘exhort the offender not References(p. 63) to come to any hostility, submitting the cause to a friendly composition or to the ordinary proceedings of justice’. Article 124 envisaged a cooling-off period, lasting as long as three years; if at its expiry no settlement had been reached, the injured State was entitled to wage war, and all the other contracting States were to assist it by the use of force. In addition, pursuant to article 3, States were duty-bound to refrain from giving military assistance to the offender, nor were they permitted to allow its troops to pass through or stay in their territories. In short, this ‘collective security system’ hinged on three main elements, which with modern terminology can be defined as follows: (i) a sweeping ban on the use of force; (ii) the prohibition of individual self-defence, except after the expiry of a long period; and (iii) the duty of all States to support the victim of a wrong in collective self-defence.
This scheme, which strongly resembles the later system of the League of Nations (1919), was too far ahead of its time and too much at odds with the real interests of the sovereign States that had appeared on the international scene. It goes without saying that it was never put into effect and remained a grand illusion.
A second attempt, which to some extent was less unsuccessful for it was more realistic, was made in 1815, after the defeat of Napoleon: the Concert of Europe. Napoleon had shattered deep-rooted principles and upset the existing order. The victors felt that they had to protect the interests of European monarchies against the seeds of revolution. They thus devised a system capable of putting a straitjacket on the new forces of progress which were urging the dismantling of aristocratic privileges and the abolition of old practices. The new system, put in place by virtue of a series of treaties in 1815, rested on three essential elements: a declaration of principle, a military alliance, and a new procedure for the settlement of political questions. The declaration of principles was embodied in the Treaty of Paris of 26 September 1815, instituting the Holy Alliance between Austria, Russia, and Prussia, to which all European states adhered (except for England, the Papal States, and the Ottoman Empire).39 The declaration proclaimed that all States would take as their standards of behaviour the precepts of Christian religion and considered themselves as members of the same ‘Christian family’.40
The military alliance (in which Austria, Prussia, Russia, England, and subsequently France, participated) envisaged a system of collective security designed to forestall or stifle any recurrence of Bonapartism in Europe as well as any revolutionary movement likely to overthrow European monarchies. Three measures were provided for in the Treaty of 1820:41 (i) the State where a revolution would break out ceased to be a member of the Concert of Europe; (ii) the new government resulting from a revolution References(p. 64) would not be recognized; (iii) the States directly concerned, or otherwise the Holy Alliance, would intervene with their troops to put an end to the revolution. This repressive system proved effective in practice: in 1821 Austrian troops were sent to Naples and Turin to suppress liberal insurgents; in 1823 French troops were dispatched to Spain, again to thwart a liberal attempt at independence.
The third element of the Concert of Europe was a new procedure for the settlement of political disputes: in short, it was envisaged that all the sovereigns concerned should meet to discuss political matters and try to settle them. Thus, multilateral diplomacy, based on periodical summit meetings, was for the first time contemplated and practised.
This system was realistic, because it was based on the common interest of some major powers. However, it was short-lived, because in a matter of a few years, nationalist movements became so powerful and widespread in Europe that monarchies had to bow to them and take on board many of their ideals. Thus, the traditional policy of balance of power soon replaced the collective system inaugurated in 1815.
In contrast, a return to idealistic and illusionary principles inspired the League of Nations, set up in 1919 as a reaction to the dreadful First World War. Unlike the Concert of Europe, the League aspired to be worldwide: it had an original membership of 42 States, including five British Dominions (India, New Zealand, Canada, Australia, and South Africa). The main traits of the League very much resembled those of the settlement of Westphalia: (i) resort to war was banned (except for a limited number of cases); (ii) when nevertheless admissible, recourse to war was subjected to a cooling-off period of three months; and (iii) if a dispute was submitted to the League Council, to the Permanent Court of International Justice, or to an arbitral tribunal, war could only be resorted to three months after the decision of one of these bodies. The system was flawed in many respects: first, there was no ban on resort to force short of war; second, war was not banned altogether, but only subjected to a cooling-off period; third, no collective system proper was set up for enforcing the law against a State breaking the prohibitions laid down in the Covenant; it was only provided that all member States were to provide assistance to the victim State, but no collective action by the League organs was envisaged. In short, any reaction to aggression hinged on the voluntary action of other members of the League. The system was too unrealistic to prove successful. It is no surprise that it failed in a matter of a few years.
The fourth and most recent collective security system is that established in 1945 by the UN Charter. It hinges on a ban on the use of force, the collective enforcement action of the Security Council, and right of individual or collective self-defence in case of armed attacks. The system combines elements of realism (the veto power of the five permanent members of the Security Council; the right of self-defence) with lofty—perhaps too high-flying—illusions (such as that of a UN armed force made up of military contingents of member States and under the command of a Military Staff Committee). Sovereignty has not been dislodged, but only slightly restrained. References(p. 65) This accounts for the relative failure of the security system. In summary, and to return to the metaphor of the fire likely to break out in a densely wooded area, in none of these cases was there a fire brigade set up or were there any common fire-extinguishing appliances put together and made available to the collective. The inhabitants of the area only attempted (or managed) to establish a sort of ‘fire council’ tasked to determine when there arose the need to put out a fire and to recommend or to authorize the dispatching of one or members of the community to extinguish it, regardless of whether or not it was necessary to pass through the land of one of the inhabitants of the area. Sovereignty has remained the major stumbling block to any real progress towards an international community proper.
At the beginning of the international community and for many centuries, sovereign States have been the overlords in that community and have run the show. The emergence of the nation-state has been a fundamental stage in the development of modern international society. Various merits can be attributed to States. At the domestic level, they have somehow amalgamated communities and established, through a centralized monopoly of force, a minimum of law and order, thereby preventing excessive violence from disrupting social intercourse. At the international level, States have constituted interlocutors responsible for the actions of their own nationals and capable of entertaining relations with other international subjects. In addition, they have made it possible for the various areas of the inhabited world to be represented in international fora. They also have tried somehow to introduce a remedy to the factual inequality and heterogeneity of international subjects by providing a general legal framework for international dealings and the coexistence of all international entities.42 However, their unbound authority began to creak at the beginning of the 20th century, and they are increasingly losing their central and dominant place in the world community. The gradual but inexorable dwindling of their authority is principally due to the slow emergence of new actors on the international scene.
The first non-state subjects that emerged were creatures of the States themselves: intergovernmental organizations. They were organized entities charged with fulfilling tasks on behalf of the member States. The first ones were essentially technical: the (p. 66) Universal Postal Union, set up in 1875; the Union of the Protection of Industrial property, established in 1883; the International Institute for Agriculture, created in 1905; as well as the various River Commissions (for the Rhine, the Danube, etc.). They were merely collective instrumentalities for the joint performance of actions which each member State would otherwise have had to undertake by itself. They were deprived of international legal personality, being considered as organs common to all member States. After the First World War, two important organizations were set up: the League of Nations and the International Labour Organization (both in 1919). In spite of their political importance, they too were conceived by member States as structures hardly possessing any independent existence or autonomous role in relation to the member States. It is only after the Second World War, both with the establishment of the United Nations and the proliferation of other intergovernmental organizations (the Council of Europe, the Organization of American States, the Arab League, the Organization of African Unity, NATO, and the various specialized agencies of the UN) and with the Advisory Opinion of the ICJ on Reparation for Injuries (1949)43 that intergovernmental organizations came to occupy the centre stage and be regarded as autonomous entities endowed with rights and obligations distinct from those of the member States—in a word, as international legal subjects.
Undoubtedly, formally speaking, all these organizations may be undone by legal fiat, through a treaty or a decision of all member States repealing the founding treaty. In fact, however, like other political and bureaucratic institutions at every level, these organizations tend to consolidate their authority once they come into operation. One contributing factor to this gradual growth of autonomy is that the organizations rest on the consent of a number of States which are politically neither homogeneous nor united. Thanks to divisions and conflicts among member States, international organizations gain strength and effectiveness which would otherwise be beyond their grasp. It follows that even powerful members are unable to influence organizations decisively or to make them take a path different from that agreed upon by the majority of states. Great powers are faced with institutions which, although formally dependent on States, eventually wield authority over individual member States.
This de facto authority expands when organizations are given by the member states powers that substantially imply a transfer of aspects of sovereignty. This holds true for the European Union, an organization vested with strong economic powers in some specific areas (powers that entail the making of binding decisions), as well as with the authority to legislate in some fields. Here the erosion of sovereignty has already taken giant steps and might lead in time to the evolution of an entity that replaces sovereign powers, at least in a number of areas.
Another set of entities that to some extent have made a dent in the States’ authority are peoples as a collective. However, here States have been extremely cautious in order (p. 67) to limit any attempt by peoples to replace States or even to have a say on the international scene. Only three categories of peoples were admitted as possible interlocutors: (i) colonial peoples, (ii) peoples subjected to belligerent occupation or foreign domination and represented by an organization (a national liberation movement), and (iii) peoples subjected to extreme racial discrimination and denied access to government (as well as endowed with a representative organization). Peoples constituting ethnic or religious groups or minorities have otherwise generally been denied any access to the world community. In addition, peoples living in sovereign States have been granted a right to self-determination in the form of free and peaceful choice of representative government, but not, however, the right to overturn the government or to secede. To these conspicuous limitations, one should add that the emergence of organized peoples was a phenomenon limited in time: it coincided with the decline of colonialism (the first liberation movement was the FLN, or Front de Libération Nationale, set up in Algeria in 1954; by the 1980s, almost all liberation movements had disappeared). Furthermore, the fight of the peoples referred to above is aimed at establishing new sovereign States, not to create centres of power restraining States’ authority. Hence the impact of peoples on sovereign States has been limited in time and scope.
Much stronger and indisputably durable has been the impact of the emergence of individuals as world actors. For centuries they have been non-existent on the international scene. Then, after the Second World War they gushed out on that scene thanks to two distinct but concurrent developments. First, the world community realized that it was individuals who had committed horrendous crimes during the war and who must therefore be brought to trial and punished, rather than (or in addition to) the States on whose behalf they had acted (hence the celebrated proposition of the Nuremberg International Military Tribunal that international law is also concerned with the acts of individuals, and that individuals, and not the states for which they act, bear responsibility for any gross violation of international law amounting to international crime).44 The second development was the diffusion of the human rights doctrine (prompted by the horrors of the war and President Roosevelt's famous ‘Four Freedoms’ Speech in 1941): the clear implication of the doctrine was that individuals were entitled to claim respect for their human rights; hence they could challenge their own governments as well as foreign governments for breaching their human rights. This doctrine entailed among other things that States could no (p. 68) longer legitimately claim immunity from prosecution for their officials accused of international crimes (a manifest inroad into state sovereignty), and that they had to accept being challenged before international bodies for the conduct they had taken within their domestic legal order towards nationals or foreigners (another major indentation of their sovereign authority). In short, States are no longer free to behave as they please vis-à-vis individuals, but must respect their fundamental rights, and can even be called to account for their possible misbehaviour.
Another development that is restraining state authority is the mushrooming of rebellion in sovereign States. Admittedly this is not a new phenomenon. What is, however, new is the multiplication of instances where ethnic groups, minorities, or political organizations take up arms against the central authorities, and promote insurgency and even secession. This trend is linked to the structure of many African and Asian countries whose borders had been arbitrarily shaped by colonial countries without attention to tribes, groups, nationalities, religion, and so on. It is also linked to the end of the Cold War and the demise of two blocs of States, which has released forces and scattered authority over the planet. What is also new is that in protracted civil wars, rebels often manage to acquire a State-like structure, with a functioning administration and courts of law that pass judgment on crimes by the government forces and even by rebels.45
A totally novel phenomenon is the formation of non-state entities (other than rebels) over the territory of sovereign States or on the territories occupied by foreign belligerents: it suffices to think of Hezbollah in Lebanon or of Hamas in Gaza. These developments are the consequence of States’ (or recognized entities such as the Palestinian Authority's) loss of actual control and contribute in turn to further weakening the central organs of States (or recognized authorities). This is a dangerous phenomenon, for it testifies to the further fragmentation of the international society.
it is intrinsically a weaker force than opinion in the domestic sphere, yet it is in a sense more effective as a sanction of law. For whereas an individual law-breaker may often hope to escape detection, a State knows that a breach of international law rarely fails to be notorious; and whereas again there are individuals so constituted that they are indifferent to the mere disapproval, unattended by pains and penalties, every State is extraordinarily sensitive to the mere suspicion of illegal action.46
Sovereign States have been the backbone of the international community since its inception. They have been the primary actors on the international scene. Without them that community would not have existed. They have always been polarized, though, and their actions have essentially been based on self-interest. However, they also needed social intercourse with other States in order to survive and flourish. Clive Parry is right when he points to the paradox of ‘the simultaneous power and impotence of the individual state’;47 namely its omnipotence, within its own borders, over all human beings living there, and its relative helplessness outside its own frontiers, with respect to other States—except when it intends to conquer and appropriate other States. Nevertheless, the ‘sociability’ of States has not led them to create a community proper, the societas generis humani (society of mankind) dreamed by Grotius,48 or what Terenzio Mamiani, in his footsteps, termed ‘the great universal city of humankind’ (la gran città universale del genere umano).49 To return to the metaphor of fires and their extinguishing, no fire brigade has yet been established in the international community, let alone a set of tools to put out the fire, jointly owned by all members. Each sovereign State continues to pursue its own interest, although now, much more than in the past, it has to take into account pressures, incentives, and exhortations of other subjects.50 In 1929, Sigmund Freud, speaking of the progress of men, said that ‘the substitution of the power of the community for that of the single individual has marked the decisive step towards civilization’.51 One may well wonder when this step will be taken at the international level, that is, when the individual State's authority will be replaced by the power of the community.
- Antonowicz, Lech ‘Definition of State in International Law Doctrine’ (1966–67) 1 Polish Yearbook of International Law 195–207.
- (p. 70) Arangio-Ruiz, Gaetano ‘L’état dans le sens du droit des gens et la notion du droit international’ (1976) 26 Österreichische Zeitschrift für öffentliches Recht 3–63 and 265–406.
- Cassese, Antonio International Law in a Divided World (Clarendon Press Oxford 1986).
- Cassese, Antonio International Law (2nd edn OUP Oxford 2004).
- Crawford, James The Creation of States in International Law (2nd edn Clarendon Press Oxford 2006).
- Detter Delupis, Ingrid International Law and the Independent State (2nd edn Aldershot Gower 1987).
- Doehring, Karl ‘State’ in R Bernhardt (ed) The Max Planck Encyclopedia of Public International Law (North-Holland Elsevier 2000) vol 4, 600–5.
- Grant, Thomas D The Recognition of States: Law and Practice in Debate and Evolution (Praeger Westport 1999).
- Hinsley, Francis H Sovereignty (2nd edn CUP Cambridge 1986).
- Maiolo, Francesco Medieval Sovereignty: Marsilius of Padua and Bartolus of Saxoferrato (Eburon Academic Publishers Delft 2007).
- Merle, Marcel Les acteurs dans les relations internationales (Economica Paris 1986) at 30–1.
- Societé française pour le droit international L’état souverain à l’aube du XXIème siècle (Pedone Paris 1994).
- Strayer, Joseph R On the Medieval Origins of the Modern State (Princeton University Press Princeton 1970).
- Tilly, Charles (ed) The Formation of National States in Western Europe (Princeton University Press Princeton 1975).
- Vitzthum, Wolfgang G Der Staat der Staatengemeinschaft: Zur internationalen Verflechtung als Wirkungsbedingung moderner Staatlichkeit (Schöningh Paderborn 2006).
- Warbrick, Colin ‘States and Recognition in International Law’ in Malcolm Evans (ed) International Law (2nd edn OUP Oxford 2006).
1 JR Strayer On the Medieval Origins of the Modern State (Princeton University Press Princeton 1970) at 9–10; on the formation of States in Europe, see also C Tilly ‘Reflections on the History of European State-Making’ in C Tilly (ed) The Formation of National States in Western Europe (Princeton University Press Princeton 1975) 25–46; M Merle Les acteurs dans les relations internationales (Economica Paris 1986) at 30–1.
2 According to Strayer, ‘it should be remembered that the structure of European states, imperfect though it was, was considerably stronger than that of most of the overseas political communities with which Europeans had to deal. There was nothing in the Americas, nothing in India or the East Indies, and nothing in most of Africa that had the cohesion and the endurance of a European state. And if the broad belt of Asian empires, stretching from Turkey through Persia to China and Japan could rival European states in organization and power up to the end of the eighteenth century, still the European states were improving their apparatus of government while the structures of the Asian empires were beginning to weaken.’ On the Medieval Origins (n 1) 105.
3 In the 17th century, the central authorities are assisted by a modern bureaucracy, which by now constitutes the central core of the State, although one must wait until the adoption, on 25 May 1791, of the French décret establishing the various ministries for ‘the principle of division of labour to be completely carried through in the public administration, and for ministers in the sense of administrative law [ie as heads of departments] to side by the monarch’. G Jellinek ‘Die Entwicklung des Ministeriums in der Konstitutionellen Monarchie (1833)’ in G Jellinek Ausgewählte Schriften und Reden (O Häring Berlin 1911) vol 2, 89–139 at 98; see also W Fischer and P Lundgreen ‘The Recruitment and Training of Administrative and Technical Personnel’ in The Formation of National States (n 1) 475–527.
4 H Wheaton Elements of International Law, with a Sketch of the History of the Science (B Fellowes Ludgate Street London 1836) vol 1, at 62; see also FF Martens Traité de droit international (A Léo trans) (Librairie Maresco Ainé Paris 1883) vol 1, at 273.
5 Elements of International Law (n 4) 35.
11 I am elaborating upon the metaphor of the fire and the ways to fight it propounded by A Ross Constitution of the United Nations: Analysis of Structure and Function (Rinehart and Company New York 1950) at 137–9.
13 L Oppenheim wrote that ‘[t]he modern law of nations is a product of Christian civilisation’. L Oppenheim International Law (H Lauterpacht ed) (6th edn Longmans London 1947) vol 1, at 45. Contemporary scholars and politicians were aware of and laid much stress on the two different classes of States. In 1837, for example, Wheaton distinguished between ‘Turkey and the Barbary states on the one hand and the Christian nations of Europe and America on the other’. Elements of International Law (n 4) 52.
15 A different view was suggested by Wheaton: ‘[T]ributary states, and states having a feudal relation to each other, are still considered as sovereign so far as their sovereignty is not affected by this relation. Thus it is evident that the tribute formerly paid by the principal maritime powers of Europe to the Barbary states did not at all affect the sovereignty and independence of the former. … So also the king of Naples has been a nominal vassal of the Papal See ever since the eleventh century: but this feudal dependence, now abolished, was never considered as impairing the sovereignty of the kingdom of Naples.’ Elements of International Law (n 4) 64. FF De Martens suggested that one should distinguish between sovereign and half-sovereign States (souverains and mi-souverains), such as Egypt, Syria, and so on; Traité de droit international (n 4) vol 1, at 330–3.
16 In 1832, Austin wrote: ‘The rule regarding the conduct of sovereign states, considered as related to each other, is termed law by its analogy to positive law, being imposed upon nations or sovereigns, not by the positive command of a superior authority, but by opinions generally current among nations. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they should violate maxims generally received and respected.’ J Austin The Province of Jurisprudence Determined (W Rumble ed) (CUP Cambridge 1995) at 147–8 and 207; see also ibid iv. If in 1860 Mamiani wrote that ‘states do not have above them other power than the moral and invisible power of law, common to whole mankind and imposed by nature’, he was clearly referring to natural law, more than to positive rules of law. D’un nuovo diritto Europeo (n 12) 15.
17 See eg Elements of International Law (n 4) 108–92.
20 I am referring of course to Leviathan (n 7) and T Hobbes Behemoth or the Long Parliament (F Tönnies ed) (2nd edn Barnes and Nobles New York 1969). In Leviathan (n 7) 81, Hobbes defined ‘sedition’ as a sickness and ‘civil war’ as ‘death’.
23 Elements of International Law (n 4) 92. Wheaton adds, however, that third States may then espouse the cause of one of the contestants, with the consequence that ‘it becomes of course, the enemy of the party against whom it declares itself, and the ally of the other’; ibid 93.
25 Zum Ewigen Frieden (n 21) 7.
26 See PS Mancini Della nazionalità come fondamento del diritto delle genti (Eredi Botta Torino 1851); La vita de’ popoli nell’umanità (G Via Roma 1872); Diritto internazionale: prelezioni. Con un saggio sul Machiavelli (Giuseppe Marghieri Napoli 1873); Della vocazione del nostro secolo per la riforma e la codificazione del diritto delle genti e per l’ordinamento di una giustizia internazionale (Civelli Roma 1874).
29 The fifth of the famous Fourteen Points proclaimed by Wilson in his address delivered on 8 January 1918 before a Joint Session of the US Congress requested ‘[a] free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interest of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.’ W Wilson ‘Address to Congress, Stating the War Aims and Peace Terms of the United States (Delivered in Joint Session, 8 January 1918)’ in A Shaw (ed) State Papers and Addresses by Woodrow Wilson (George H Doran Company New York) 464–72 at 468.
38 Responsabilité de l’Allemagne à raison des dommages causés dans les colonies portugaises du Sud de l’Afrique (Germany v Portugal) 2 Rep Intl Arbitral Awards 1019. The Special Arbitral Tribunal held that reprisal, first, comprises acts which would normally be illegal but are rendered lawful by the fact that they constitute a reaction to an international delinquency; second, they must be ‘limited by considerations of humanity (les expériences de l’humanité) and the rules of good faith applicable in the relations between States’; third, they must not be excessive, although they need not be strictly proportionate to the offence; fourth, they must be preceded by a request for peaceful settlement (they must ‘have remained unredressed after a demand for amends’); fifth, they must ‘seek to impose on the offending State reparation for the offence, the return to legality and the avoidance of new offences’.
40 The principles laid down in the treaties mentioned above were aptly summarized in D’un nuovo diritto europeo (n 12) 275–6. The author opposed to them a set of democratic principles of ‘a new European law’; ibid 277–9.
42 On these last three points, see Les acteurs dans les relations internationales (n 1) 58–61.
44 The Tribunal said the following: ‘It was submitted that international law is concerned with the action of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. … [I]ndividuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.’ Trial of the Major War Criminals before the International Military Tribunal (Nuremberg 1947) vol 1, at 222–3.
48 See H Grotius De jure belli ac pacis libri tres (Nicolaus Byon Paris 1625) at 439 (book II, ch XX, s XLIV) where Grotius confines himself to citing Cicero. More developments can be found in Grotius Mare liberum (Ex Officina Elzeviriana Leiden 1633) in the ‘Introduction’ and at 2 (ch i) and 74 (ch XII).
49 D’un nuovo diritto Europeo (n 12) 10.
50 See A Cassese ‘Soliloquy’ in A Cassese The Human Dimension of International Law: Selected Papers (OUP Oxford 2008) lviv–lxxxi at lxxvi–lxxx; L Condorelli and A Cassese ‘Is Leviathan Still Holding Sway over International Dealings?’ in A Cassese (ed) Realizing Utopia: The Future of International Law (OUP Oxford 2012) 14–25.