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Max Planck Encyclopedia of Public International Law [MPEPIL]

History of International Law, 1815 to World War I

Hans-Ulrich Scupin

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 18 August 2019

1815 to World War I

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Creation of Rules of International Law by the Vienna Congress and the Subsequent Treaties

1.  Principles; Effects

The history of international law at the beginning of the 19th century is not so much the history of principles of law as an account of the law applied in practice at the time. This does not mean that writers were silent, but that in view of the new political situation prevailing after the Napoleonic Wars and the Vienna Congress (1815) they dealt only with the rules set out in treaties or to be found as customary international law in diplomatic practice (Diplomacy). On the other hand, the attempt at codification of considerable parts of international law shows that for statesmen the rules governing relations between States, their sovereigns, republics, and also the Holy See bore the character of law to a higher degree than previously (Codification and Progressive Development of International Law). For this reason comity as the practice of international courtesy was now distinguished from law.

This new approach to international law is reflected not only in treaties settling particular disputes, such as the first Definitive Treaty of Peace and Amity signed in Paris on 30 May 1814 (‘First Paris Peace Treaty’) and the second Definitive Treaty of Peace of 20 November 1815 (‘Second Paris Peace Treaty’), but also in the conclusion of collective treaties, or multilateral agreements after a congress, such as the Final Act of the Vienna Congress of 9 June 1815, the Protocol of the Conference of Aix-la-Chapelle of 15 November 1818, and the Final Act to Complete and Consolidate the Organisation of the German Confederation of Vienna of 15 May 1820. The Act of the German Confederation of 8 June 1815, which is a national legal instrument with some international law elements, is also important since it created an association of States, which, as the German Confederation, held the various States together for over half a century, and, at the same time, in conjunction with the other agreements, enjoyed a kind of guarantee on the part of the European States involved.

The Vienna Congress of 1815 was held under the direction of Austria, Great Britain (‘GB’), Prussia and Russia, who now emphasized their position by calling themselves the Great Powers. On the initiative of GB, the political aim of the congress was to help to restore the balance of power in Europe, and, in response to a suggestion by Tsar Alexander I, to promote a better exchange of goods and ideas. The prohibition of the slave trade from Africa across the Atlantic to America was linked with the discussion on the exchange of goods (Goods, Free Circulation of). The demand for prohibition was based on a humanitarian idea (Humanity, Principle of), the consequence of which could not yet be fully foreseen; although this idea was derived from the United States’ Declaration of Independence and the French Revolution, the demand for prohibition was already widespread in GB. It became law in France through a Napoleonic decree after his return from Elba. The acceptance by British public opinion of the obligations undertaken in Vienna came about because the surveillance of this trade, and thereby of the trading relations of many different powers, automatically fell in 1815 to the largest sea powers, a position which was subsequently confirmed and reinforced by the Treaty for the Suppression of Slavery of 20 December 1841 (92 CTS 437). From naval bases such as St Helena, British squadrons could exercise surveillance over suspected slave transports while checking shipping within their reach, with the inevitable side effect that they could supervise the overseas trade of nations in goods. The States taking part in the Vienna Congress were, however, chiefly influenced by the humanitarian idea when they gave their assent to the prohibition of the slave trade through the Declaration relative to the Universal Abolition of the Slave Trade of 8 February 1815 (63 CTS 473). The recognition of the slave trade and later also of the immorality of slavery itself found legal expression on a number of occasions in the course of the century. It was cause of the American Civil War (1861–65) and the object of several international conventions, of which the most comprehensive is the General Act of the Brussels Conference relating to the African Slave Trade of 2 July 1890 (‘General Act of Brussels concerning Slavery [1890]’).

Commercial ties between States were promoted by a programme of internationalization of those rivers which form the boundary between two or more States or which flow through several States International Watercourses). This was planned in Art. 5 First Paris Peace Treaty, but remained at the planning stage at the Vienna Congress and was only partly realized at a later date, eg in the Convention relative to the Navigation of the Rhine of 31 March 1831 (revised by the Convention and Protocol Respecting the Navigation of the Rhine of Mannheim of 17 October 1868; Rhine River). With certain amendments, this has remained in force up to the present day, apart from being suspended in 1936 by the German Reich. The Treaty of London of 19 April 1839 opened the Scheldt River to international navigation, and the Paris Peace Treaty (1856) opened the lower Danube River as far as the Iron Gates, while the internationalization of the entire navigable length of the river was brought about in the Act for the Navigation of the Danube of 2 November 1865 (‘Danube Act [1865]’).

Above all, the Vienna Congress codified the law on diplomatic agents and missions. This is seen as its real achievement in relation to international law by those who look primarily for a formal principle for the nature of international law. This is, however, legally speaking also an expression of the idea of intercourse between States, which is carried on principally and almost daily by those organs which maintain permanent contact with their ministries and, further, with Heads of State (see also Heads of Governments and Other Senior Officials). Since Heads of State are the highest organs of States with the function of acting internationally so as to bind the State in law and since a gradation of the political importance of States—and thereby of the rank of the sovereign Heads of State—was clearly implied at the Vienna Congress, there was a resulting gradation of the categories of diplomat. This system, which grew out of considerations of formal representation, was maintained completely undisturbed until World War I; in practice, however, functional elements were gradually added. This was shown by the practice of sending an ambassador in a given case. Since an envoy of the rank of ambassador was only appropriate among the Great Powers—now understood as a legal concept—the sending State thereby recognized the receiving State as a Great Power, as happened for the first time with the four victorious Powers and the Kingdom of France in the Protocol of Aix-la-Chapelle (1818). In the course of the 19th century, considerations arising from the importance of a particular question for dealings between powers also became sufficient grounds for the appointment of an ambassador. An annex to the Final Act of the Vienna Congress lists ambassadors, envoys and chargés d’affaires, to which the Protocol of Aix-la-Chapelle (1818) added, as third in the order of precedence, ministers resident. The fact that papal nuncios and legates were recognized as enjoying the highest precedence, and on occasions acted as doyen even in non-Catholic States, shows how the assessment of the importance of the Holy See had changed. The law of diplomacy is exceptionally complex and the question of precedence merely raises one aspect of it upon which particular emphasis was placed at that time. It has very great significance for relations between States because of the principle of extraterritoriality which it brought into the law, and which in reality only means a privilege of immunity from the jurisdiction of the courts of the receiving State, and not in every respect at that (Immunity, Diplomatic; see also Vienna Convention on Diplomatic Relations [1961]).

The new feature of the writings on international law of this time is the decline in abstract discussions of principle in favour of consideration of State practice. State practice enters the literature and dominates it, while natural law speculations (Natural Law and Justice) disappear. The change was not uniform, however. The new edition of G de Rayneval’s Institutions du droit de la nature et des gens (1832) still contained certain natural law elements, though the practical application of that supposed natural law, that is to say the sum of rules of law, forms the major part of the work. The proportions of rationalist speculation and practice were still reversed in 1817 in T von Schmalz’s work Europäisches Völkerrecht. Among German writers F Saalfeld deserves particular mention: he published his Handbuch des positiven Völkerrechts in 1833, with the declared aim of giving scientific shape to the new and firmly established state of the subject. Unlike Schmalz, he saw treaties not as the fulfilment of natural law but as a source of law in themselves. JL Klüber wrote his Droit des gens moderne de l’Europe (1819) and this is also based upon the idea of a natural law of nations upon which a system of concrete law is built by means of express or implied treaties. His approach is, however, in the main more that of a public lawyer, since he sets out the law of the German Confederation from this point of view. Klüber’s best known work, which is typical of the reception of State practice into the study materials of the period, is his Acten des Wiener Kongresses (9 vols 1815–35).

The scholar who devoted himself to international law as a system in the proper sense, and whose work was central to German writing on international law in the first half of the 19th century, was AW Heffter. The first edition of his Europäisches Völkerrecht der Gegenwart appeared in 1844 and the eighth and last edition in 1888. The law of diplomatic missions received particularly detailed treatment. It is characteristic of Heffter’s—now antiquated—approach that he holds the peculiar notion that not only States, but also Heads of States, and even their families and envoys are subjects of international law.

The rigorous plan of the Vienna Congress to preserve a Europe in which States were ostensibly restored to their pre-revolutionary status found expression in a number of principles. The Holy Alliance (1815) was established between the three leading continental Powers on 26 September 1815 for this purpose, and sought to give a kind of religious legitimacy to the restored forms of government for the whole of Christian Europe, irrespective of denominational differences. As a political institution the Alliance was opposed to all forms of revolution and the idea of a nation as forming a State (Nations). The nation had been developed by the French kings as a political entity and given a dynamic dimension by the French Revolution, but it did not fit in with the pluralistic balance of a society of predominantly dynastic States. The static and dynamic means used by the Holy Alliance in the execution of its policies produced, intentionally and unintentionally, a number of different legal institutions.

2.  Legal Institutions of the First Half of the 19th Century

Although the First Paris Peace Treaty restored the Swiss Confederation, which consisted politically of several nations or parts of nations and had been destroyed in its original form by the French revolutionary armies, its neutrality was not guaranteed until the Second Paris Peace Treaty (Neutrality, Concept and General Rules). This guarantee was the legal innovation in the treaty. Permanent neutrality thereby became an institution of neutralization. Although this institution does not secure the existence of the neutralized State directly, the guarantee supports the existing distribution of power by means of the obligation of the guarantor States to avoid all actions entailing the possibility of military involvement of the neutralized State and by imposing corresponding duties on the latter States now freed from military conflicts (reconnaître et faire reconnaître). This means giving up the political weapon—entirely legitimate at that time—of the aggressive use of military force in the field of opposing European forces. The institution of neutralization thereby became one of the static, stabilizing elements of international law.

10  The attempt to apply the same institution to the ancient capital of Poland, Krakow, which was declared a Free City at the Vienna Congress (Free Cities), proved to be insufficient to overcome the political tensions resulting from the divisions of Poland because the city was too small a body to carry much political weight and there was no neutralist tradition in Poland and the neighbouring States. After various earlier serious threats to its legal existence, the Free City of Krakow was dissolved when occupied by Austria on 6 November 1846.

11  Although Belgium also lacked a policy of neutrality based on tradition when it was created and neutralized between 1830 and 1833, its neutralization, confirmed by the Resolution of 19 April 1839 of the Congress of London, endured significantly longer, until World War I. The conditions for and the end of the neutrality of the Grand Duchy of Luxembourg established by the Treaty of London of 11 May 1867 (135 CTS 1) were similar. The institution of neutralization has had a firm place in international law since then.

12  The institution of intervention should be mentioned as one of the dynamic means for maintaining established conditions and as an aggressive instrument of the European powers’ policy of legitimacy. The anti-revolutionary meaning of intervention, propounded by GF von Martens in his Cours diplomatique of 1801 and expanded to a right of self-preservation of the intervening States, proved to be an inadequate justification of the practice. Against the cases of intervention in favour of rulers threatened by revolution in Europe, principally in Italy between 1820 and 1822, and again in 1833, must be set the doubtful intervention in Greece. Only six years after the beginning of the Greek struggle for independence, the powers of the Holy Alliance decided, on 6 April 1821, to intervene in favour of the Greeks at the Sublime Porte, and in so doing abandoned the ideas of legitimacy in its application to a non-Christian ruler, the Sultan. In 1827 they mediated between the—as yet unrecognized—insurgents and Turkey, and in the same year they defeated the Turkish-Egyptian fleet at Navarino, thereby committing a clear act of armed intervention. The legal institution thereby changed its meaning and came back to Victoria’s old doctrine that it is lawful to take action against a State which denies its own subjects essential rights, in this case action against Turkey in support of the Greeks (Humanitarian Intervention).

13  In the case of the revolt of the South American colonies against Spain (Decolonization: Spanish Territories), the objectives of the Great Powers were mutually contradictory. This was shown by the lead taken by GB in recognizing the South American States (Recognition), after they had been fighting for their independence since 1810.

14  Intervention in support of legitimate claims found its external limits in the Monroe Doctrine (Doctrines [Monroe, Hallstein, Brezhnev, Stimson]). This contains the counter-principle of non-intervention but also demonstrates isolationist tendencies on the part of the United States of America. On the one hand it called for restraint by the European powers, including Russia with regard to Alaska, but on the other hand it established an attitude of restraint by the US in relation to European affairs. This reinterpretation of Anglo-Saxon international law concepts by the US is frequently cited as the starting point for a new Anglo-American doctrine of international law.

15  Interventions in the sense of averting threats to the human rights of a State’s own subjects were carried out on a number of occasions by the European powers against Turkey in favour of Christian minorities, in particular in connection with massacres of Armenian Christians. The institution of interventions for humanitarian purposes was, however, unable to provide a complete justification for such action, especially since the intervening States were usually pursuing their own end at the same time. An abstractly formulated prohibition of intervention was therefore gradually developed as a legal principle of non-intervention (Intervention, Prohibition of).

16  The question of legal recognition of States and governments dates back to the revolutions of modern times. The origin of this legal institution can be found in the first third of the 19th century in the conflict between the exclusion for reasons of legitimacy of new subjects of international law in the form of independent breakaway States and the continuing strength of revolutionary tendencies (Armed Conflict, Non-International). The independent, unilateral legal act of recognition can occur in relation to various objects. Depending on the grounds on which recognition is based, the actual sequence of events should be, first, recognition of insurgents as belligerents (Belligerency Recognition of Belligerency), then recognition of them as a government, and finally recognition of them as a new State in a clearly definable territory when all three requirements for the existence of a State are present in the area governed by them. Then, in the second half of the 19th century, we have further questions of the recognition of international organizations as subjects of international law with limited rights and functions (International Organizations or Institutions, General Aspects).

17  The armed intervention by the Great Powers in the Greek uprising in 1827 was thus tantamount to the recognition of the insurgents as belligerents. The Greek Freedom Committee was thereafter increasingly recognized as a government. Then, in the London Protocol of 3 November 1830, Greece was recognized as an independent State.

18  The Belgian uprising of 25 August 1830 led to the recognition of the Belgian Government at the Congress of London in 1831 and, after long negotiations with the governments of the two parties to the conflict, to the Treaty of London of 19 April 1839, in which Belgium was recognized as an independent State. Moreover, the ascendancy of British interests is clearly shown here, since it was through their pressure that the Scheldt River was internationalized; at the same time we can also see the beginning of the decline of the Holy Alliance.

19  Events in the Near East brought about a modification of the practice of recognition through the application of the principle of legitimacy in favour of a non-Christian State, Turkey, which was only recognized de facto at the time. The untenability of the basic idea of the Holy Alliance is shown by the fact that the States created as a result of rebellion or intervention, which were then recognized de facto or de iure, either were not Christian—as in the case of Egypt—or, though Christian, were so backward socially and politically that ordinary principles of statehood could scarcely be applied to them. This resulted in their independence being recognized in stages. Although respected as units from the first, they remained under suzerainty either of Turkey or of various European States and were only recognized as independent States—and even then not all of them—towards the end of the century. The force of historical events led to an ever greater recognition of Turkey as a subject of international law. Notable points in this development in the first half of the century were the Russian-Turkish Treaties of Peace signed in Adrianople on 14 September 1829 (80 CTS 83) and of Defensive Alliance, called the Treaty of Unkiar Skelessi, of 8 July 1833 (84 CTS 1). Also the Convention for the Pacification of the Levant signed in London on 15 July 1840 between England, Austria, Prussia, Russia, and Turkey which made Mehemet Ali ruler of Egypt under the formal suzerainty of Turkey (90 CTS 285). Furthermore, the Convention respecting the Straits of the Dardanelles and Bosphorus of 13 July 1841 (‘Straits Convention [1841]’), which regulated navigation in the Dardanelles in accordance with the maritime interests of the Great Powers, emphasized the need to maintain Turkey’s existence and this contained a de facto recognition (Dardanelles and Bosporus; Straits, International).

20  Recognition developed in a special and distinct way in South America, facilitated by the proliferation of new States and the constant succession of revolutions within these States (New States and International Law). The protection given by the US against foreign, overseas interventions is understandable not only in the light of considerations of self-interest, but also of their view of the legal significance of recognition, which the US had been accorded by France in 1788 when the US was in a similar position. From South America came a democratic element in the practice of recognition in the form of the Tobar doctrine in the General Treaty of Peace and Amity of 20 December 1907 (206 CTS 63), declared by an Ecuadorian politician, that a State or government should only be recognized if it has, or at least subsequently acquires, a democratic basis. The Estrada doctrine of recognition without preconditions, which takes its name from a Mexican, belongs to the period of the development of American international law after World War I (International Law, Regional Developments: Latin America; Regional International Law).

21  According to the theory of constitutive recognition which originally prevailed, the legal institution of recognition is a dynamic means for the cautious admission of new States into the international legal system. In the case of recognition of governments it is a political device for reducing the obligations arising from participation in international legal relations.

22  Since recognition does not occur by omission, but only by a deliberate act, it can be regarded as one of the dynamic principles of international law. The practice with regard to recognition underwent considerable development in the 19th and 20th centuries; its origins lie in the conflict between the principle of legitimacy and the rationalist approach of the pluralist system of new States emerging at the beginning of the 19th century.

23  The right of asylum for those suffering political persecution, ie the right of the State giving them refuge to refuse extradition to their State of origin, although they have committed political acts which are crimes by the law of that State, also found its way into national codifications and into treaties in this period, after being practised for some time on a purely discretionary basis by the Anglo-Saxon States and Switzerland (Asylum, Territorial).

24  Thomas Jefferson’s proposed definition of the right of asylum in 1792, which included even murderers if they had acted out of political motives, never went beyond the stage of a draft, from the point of view of international law, in the same way that the granting of asylum to ‘friends of liberty’ on the part of the French revolutionaries, though enacted as Art. 120 French Constitution of 1793, was never recognized in international law. The extradition agreement concerning forgers and murderers reached by the US and GB on the initiative of Secretary of State Jay in Art. 27 Treaty of Amity, Commerce and Navigation of 19 November 1794 (Jay Treaty [1794]) made little change in the previous practice with regard to political offences. Anglo-American support for the former Spanish colonies, ie for the insurgent governments and the new States, extended the practice of asylum further in the direction of revolutionary ideology.

25  In municipal law the right of asylum was included in legislative codes in numerous continental European States as a result of the predominance of liberal ideas, as in Saxe-Meiningen on 25 August 1829. The best-known example is the Belgian Law on Extradition of 1 October 1833. At the same time the right of asylum began to be established in international law, if only in bilateral treaties such as the Swiss-French Extradition Treaty of 30 September 1833 (84 CTS 59).

26  Since the non-extradition of political offenders is the rule, either by statute or treaty, in all democratic States, subject mostly to the exception of assassination attempts—as in the 1856 amendment to the Belgian Law on Extradition—and since this practice has become the subject of multilateral obligations in numerous American conventions, it is a matter of opinion whether the right of political asylum should be called a rule of international law or not. Having regard to the contrast between the democratic States which emerged in the Anglo-American world—and also, in the second third of the 19th century, increasingly on the European Continent—and the Holy Alliance, with its policy of restoring the pre-revolutionary status quo, it must be admitted that with the advance of liberal ideas the right of asylum developed as an effective legal institution in the 19th century and thus became a rule of international law. By contrast, symptoms of the breakdown of the institution and far-reaching changes in the concept of asylum are to be found in the 20th century.

B.  From the Law of the Western Hemisphere to the International Law of the World

1.  Treaties Made by the Great Powers during the Expansion in the Near East and Far East

27  The advance of the European powers overseas not only brought them territorial gains but also prepared the way for the extension of international law to other parts of the world, though the newly acquired territories did not at first rank as independent subjects of the international legal system, so that the system retained its Western character (Colonialism).

28  Apart from the establishment by GB on 5 November 1815 of a protectorate over the Greek islands in the Ionian Sea (Protectorates and Protected States), which culturally and legally belonged to Europe and lasted until the Ionian Islands were incorporated into Greece in 1864, it was France which took the first step which led to the unintentional extension of European international law. In 1830, after an armed conflict, it occupied Algeria. Together with other powers, it also supported Mehemet Ali in Egypt against his formal suzerain, the Sublime Porte. Nominally a Turkish pasha, Mehemet Ali was at first only an object of treaty policy under the quadripartite treaty, but the recognition by the Sublime Porte of this right as a hereditary ruler made him a third party to the treaty and thus the subject of rights. As a result of the policy of the European Great Powers towards the Sublime Porte, common action came about for the first time after Russia’s unilateral move, which brought it considerable influence. This common action found expression in the Straits Convention (1841), which closed the Dardanelles to warships of all nations. A State-like body, which was not previously a member of the international legal community and was not intended to become one, thus became the subject of rights and duties in international law.

29  While the remaining areas of the Balkans more or less governed by Turkey were comparatively quiet, the revolt by Danilo, the spiritual ruler of Montenegro, who declared himself temporal ruler, marked the beginning of a conflict which was to lead to the formation of the Balkan States (South East Europe). Russia committed considerable resources into furthering this process against Turkey. The interests of the Western European Powers were opposed to those of Russia, and the Crimean War (1853–56) which began on 29 September 1853 finally shattered the old unity of the Holy Alliance. The fact that the Western powers fought on the side of Turkey against Russia meant that, in conformity with their policy in other matters with regard to this non-member of the international legal community, they were involving it to an increasing extent in international legal obligations; for it was important for the Western powers that in those decades of Turkey’s decline they were able to pursue their free trade interests without hindrance. Besides wishing to prevent an increase in Russian power in the straits area and the consequent shift in the balance of power, the Western powers took into account economic interest in according a limited legal recognition to this non-Christian State. The patronizing attitude on the part of the Western powers was shown by the extension of the old practice of consular treaties.

30  The situation with regard to the advance of the European powers in East Asia was rather different. The great empires of China and Japan totally resisted the penetration of Western economic and cultural forces into their lives and closed their frontier to the West. On the British free trade principle, which was seen as a principle of law, it followed that China and Japan had to be compelled to re-open their frontiers. In this connection the Treaty of Nanking between China and GB of 29 August 1842 (93 CTS 465) is noteworthy which, after the Opium War of 1842, gave the island of Hong Kong to GB—though not the entire later Crown Colony. The Treaty of Tientsin between China and Russia of 1 June 1858, and the Treaty of Peking between China and France (123 CTS 79) following the Lorcha War in 1860, forced the establishment of permanent diplomatic relations and increased the number of treaty ports (Diplomatic Relations, Establishment and Severance). These were instances of so-called unequal treaties (Treaties, Unequal). The only open annexation[s] were carried out by Russia, which annexed the Amur province and the eastern province of Siberia.

31  In the case of Japan, the cannons of the US naval officer Commodore Perry brought about the opening of the country and the conclusion of a Treaty of Peace and Amity of 31 March 1854 (111 CTS 377). Further treaties followed with European countries under which the system of placing foreign nationals exclusively under the jurisdiction of the consuls of their State of origin, successfully applied in the Near East, was extensively introduced into Japan (Consular Jurisdiction). The use of military force was required on more than one occasion, in the form of the bombardment of ports in 1863 and 1865, in order to maintain this system, until the Meiji rulers decided on a rapid and thorough-going transformation of the country to the Western model. The conversion of the Japanese internal legal system was one of the most important factors in this process. It resulted not only in the introduction of a constitutional system and a system of law based on the laws of continental Europe, but also in European international law being taken over in its entirety and applied without regard for Japan’s wholly different cultural conditions. The European powers immediately sent permanent diplomatic missions to the courts of China and Japan, but China had for long to accept much more severe limitations of its territorial sovereignty than Japan. Nevertheless, the institution of recognition of States with its three characteristic features of a people and a territory subject to the jurisdiction of a single State is to be seen in the conduct of the Western powers in relation to the Eastern empires. This combination of the substrata was also recognized as legally binding in relation to other States.

32  Several other States in the Far and Near East were recognized in this period, eg Thailand and Iran, and also one African State with Western links, Liberia.

33  Whereas in these cases de facto and de iure recognition almost coincided in a single act, the Western powers proceeded more hesitantly with regard to Turkey. In the Paris Peace Treaty (1856) which ended the Crimean War the legally important de facto recognition derived from the precious conduct of the European powers was extended to de iure recognition (Art. VII).

34  After the removal of the psychological obstacles, there was no further resistance to the expansion of the international law of Europe into the international law of the world, which had begun in the Middle and Far East. The gradually more complete use of all the institutions of the law of diplomatic missions was the means from time to time of compelling recalcitrant States to observe the system of international law which they had decided to adopt in all its aspects, including those which they found inconvenient. The killing of ad hoc envoys in the Lorcha War and of diplomatic personnel after the conclusion by Japan of a complex of treaties with the European powers in 1861–62 and later the murder of the German envoy von Kettler in the Boxer Rising were the grounds taken to justify the use of harsh measures or military force to punish these internationally wrongful acts (Reprisals; State Responsibility). China in particular itself provided justification more than once for the extension of the system of capitulations into one involving the extraterritoriality of whole foreign quarters in the largest cities within its territory.

35  A purely local expansion of European international law occurred in the second third of the 19th century as a result of the increase in trading posts, eg those of the US in Samoa in 1839, France in Gabon in 1842, and GB in Lagos and Nigeria in 1861. Expansion also came about through colonialism and imperialism and not only through peaceful free trade activities. Thus, through the device of the protectorate, Tunisia and Algeria were added to France’s sphere of influence on 12 May 1831. In 1860 the old colony of Freetown in Sierra Leone was declared a Crown colony, after GB had acquired its hinterland. As early as 1843, GB had enlarged Cape Colony by adding an area of Boer settlement to the north. When the Boers withdrew and created the Orange Free State, GB first annexed it in 1848, but then, in 1854, recognized it as an independent State again, as it had earlier recognized the other Boer State, the Transvaal Republic, in 1852. The recognition of the Boer States also meant an increase in the number of subjects of international law, while retaining the original scope of European international law with the condition that it applied to Christian States. The British annexation of these two States after the Boer War, Transvaal on 24 May 1900 and the Orange Free State on 1 September 1900, was a retrograde step. However, it did not produce a reduction in the area of application of international law, since Cape Colony in its entirety received Dominion status in 1920, thus preparing its entry into the international community as part of the British Empire, later the Commonwealth.

2.  The Legal Institution of Annexation and Occupation

36  The acquisition of territory following the use of force, generally by means of a treaty with the ceding State, was an undisputed part of late classical international law (Territory, Acquisition). Partial annexation is where one area is ceded, as in the case of Hong Kong or the East Siberian provinces. Total annexation occurs when a previously independent State is incorporated into another State, as in the case of the Boer republics in 1900.

37  That annexation is a legal institution, and not merely the simple factual use of force, follows from the observance of certain forms which almost always give the outward facts legal authority. However, critical examination from the modern standpoint reveals in the often artificial justifications advanced for the action an unconcealable uncertainty as to the legality of the action in the minds of statesmen, forced to secure their position with regard to international public opinion.

38  The legal institution of the acquisition of territory by occupation (Occupation, Pacific) differs greatly from annexation with the institution of temporary military occupation (Occupation, Belligerent). It involves the acquisition of unappropriated territory by taking actual possession together with the necessary expressed or, if need be, implied declaration of sovereignty by the occupying State (Unilateral Acts of States in International Law). It can, however, be a matter of some doubt in a particular case whether the territory is unappropriated or not. According to the view current at different periods of history, even relatively highly developed societies with a population, a defined territory, a government and an indigenous legal system, such as the Sultanates of West and Central Africa, have been ignored for legal purposes and not regarded as forming part of the international legal community. The indigenous order was not considered to be legal rule, so that the territory was deemed unappropriated and open to occupation. For this reason it is often difficult to determine which category—annexation or occupation—the expansion of the rules and the laws of a European State falls under, especially since European States sometimes took the illogical step of concluding treaties with such ‘natural’ rulers, in order to disguise their action and avoid the use of force or merely to express their superiority (Indigenous Peoples, Treaties with). Apart from the need for greater caution, the situation was not in any way changed when private representatives invested with sovereign power were allowed to act on behalf of the State. The Treaty of Cession between Great Britain and the Maoris in New Zealand signed in Waitangi on 6 February 1840 (89 CTS 473) was not a treaty in the legal sense but merely a political measure which was used later in order to bring the territory under British rule as a colony by a unilateral declaration of occupation. The same applies to treaties of the German agent Gustav Nachtigal of the German East Africa Company in 1884–85 which merely prepared the way for occupation by the German Reich immediately afterwards. The legal nature of GB’s treaties with the Sultan of Zanzibar in 1841 and the Sultan of Uganda in 1892 may be doubtful, since it would be possible to see them including these territories within the scope of international law through the legal device of the protectorate. If GB’s political objective is regarded as having been not merely to take over the protected territory’s legal capacity on the international plane, with the aim of developing this so that the territory could act independently at a later time, but to rule these territories and use them for itself, these actions can only be classed as occupation. In accordance with the ideas of the time these territories were legally unappropriated.

39  In the present century the institution of occupation has only been applicable to territories which are uninhabited, and therefore really unappropriated, such as Antarctica and parts of the Arctic region.

C.  Extension and Development of the Law of the Sea

40  The development of the legal consciousness of the European States and the States of the American hemisphere produced new ways of making law and new substantive rules of law in the middle of the 19th century. New institutions of international law came into being as a result of the increase in trade and the increase in shipping which went with it. In some cases this development manifested itself in the form of customary international law, whereby all the sea-faring nations applied a common rule. In other cases, eg concerning cargo and ports, the sea-faring nations adopted rules initially as national customary law independently of each other, with international agreement following later; and in yet other cases multilateral agreements came first, with the different countries acting together to create new positive law (Law of the Sea, History of).

41  Common control and free navigation on the high seas was seen as matter of concern to all, requiring legal regulation to clarify the usages and various customs and bring them into line with each other (Navigation, Freedom of). The appearance of the idea of a nation behind and within the concept of a State changed the understanding of relations between States and heightened the differences between States at one and the same stage of development in spite of the parallels in time and substance. A third feature is also of historical interest: as a consequence of the industrial revolution taking place everywhere and the awakening consciousness of the common cultural heritage (Common Heritage of Mankind), the will and the necessity for the formation of international organizations emerged (International Organizations or Institutions, History of).

42  Reform of the law of the sea around the middle of the century came about first through changes in practice and then by treaty. The reason for the changes in practice lay in the change in the view of the law of the sea held by the largest sea power, GB. At first GB had been ruler of the seas in the sense unintended by John Selden in his Mare clausum of 1635; in the 19th century it took over the role of protector of the freedom of the seas. In this role Britain acted partly on behalf of the other European powers, in relation to unlawful trade and piracy, as in controlling the slave trade, but partly on its own authority deciding questions of legality, particularly in the case of naval warfare, though applying established rules in the empirical manner of the common law. It did indeed seem obvious, and not merely in the British view, that an enemy State’s merchant fleet and possessions, enemy ships and enemy property in other words, should be subject to search and seizure at sea. The counter-questions which arose were whether free trade and ocean shipping could lawfully be interrupted or even prevented by belligerents. The growing number of ships of other nations, both merchant ships and to a lesser extent warships also, called GB’s assertion of domination over the seas into question and made it necessary for the exercise of sovereignty on the high seas to be transformed into a legal institution. If the exercise of sovereignty by warships of all nations was to be lawful, GB had to attempt to define the restriction on free trade which would result in certain circumstances in general terms according to its view of the law. The change which turned GB into the protector of the freedom of the seas grew out of the ideas of mare liberum in the new form of freedom of trade. The decisive steps for the establishment of free trade principles in England were the repeal of the Corn Laws under the liberal Peel government in 1846 and the replacement of the Navigation Act of 1651 by an appropriate liberal measure by Parliament in 1849.

43  The question of the Dardanelles was the first practical occasion for negotiations to resolve the problems raised by free trade. Free trade is always under particular threat in those straits where both coasts are in the hand of the same State. Not only is it particularly easy for that State to use armed force to close the straits to shipping and trade, but it can moreover rely on the exercise of sovereignty over its coastal waters as a legal justification for its action.

44  Russia’s long-standing ambition to control the Dardanelles and the Bosphorus thus presented a danger to the interests of British maritime trade and the shipping of other powers in the Mediterranean and the Black Sea. This increased the strategic and political importance of Turkey, the weaker power on the straits. Herein lay the political purpose of the Straits Conventions (1841), which was to be achieved by closing the Dardanelles and the Bosphorus to the warships of all nations. The neutralization of straits, as the move later came to be called by a somewhat inexact application of the concept of neutrality, was frequently regarded as a basic principle of European international law in the 19th century and applied in other similar cases.

45  Although not one of the immediate reasons for the outbreak of the Crimean War, the Dardanelles problem constituted part of the underlying causes and aims of the war, and it was accordingly the object of detailed regulation in the Paris peace negotiations of 1856. Art. XI Paris Peace Treaty (1856) refers to the Black Sea as being, in the new sense, neutralized and open to the merchant ships of all powers, but interdicted to the flag of war. Neutralization thus meant in this case the demilitarization of a defined area, here a sea together with its coastal regions which come under the sovereignty of the coastal States. By contrast, the closure of the straits emphasized the territorial sovereignty of the coastal State. The responsibility for closing the straits to all flags was placed upon the Sultan.

46  The idea of removing dangers to free trade threatened by a State’s control of straits led to a treaty annexed to the Paris Peace Treaty (1856) by which the Åland Islands at the entrance to the Gulf of Bothnia were demilitarized. Russia could, with the possession of Finland and these islands, close the Gulf, but it undertook the obligation not to establish fortifications or naval installations on the islands.

47  While the terms of the treaty dealing with the less urgent Aaland question were observed until World War I, the very specific provision for the Black Sea and the straits lying before it were not observed for any length of time, not least because of the obligations placed on Turkey and the latter’s weakness. In September 1870, while the forces of the Western powers were tied up in the Franco-German war, Russia repudiated its obligations. The closure of the straits was reintroduced by the Treaty for the Revision of the Stipulations of the Treaty of 30 March 1856 (Navigation of the Black Sea and Danube) signed in London on 13 March 1871 (143 CTS 99) but substantially weakened by the authority given to the Sultan to make exceptions for the warships of allied States. With regard to the Black Sea, Art. III merely declared that it should remain open for the mercantile fleets of every nation. World War I changed the situation in relation to the Dardanelles irreversibly, and made new provision for the straits necessary after the war.

48  The idea of free passage for merchant ships of all nations cried out to be applied to man-made waterways connecting two seas. Traffic through the Suez Canal, which was opened in 1869, was regulated through the multilateral Convention of Constantinople of 29 October 1888 (171 CTS 241) the first agreement on international canals. The corresponding treaty for the Panama Canal is based on a bilateral agreement between the US and Britain, recorded in the Hay-Pauncefote Treaties of 5 February 1900 and 18 November 1901 (188 CTS 279; 190 CTS 215). The Kiel Canal was only neutralized in the treaties after World War I.

49  The Declaration respecting Maritime Law signed in Paris on 16 April 1856 attempted to settle substantially the whole range of problems in the law of the sea (Paris, Declaration of [1856]). From 16 April 1856 until World War I it remained the principal source of the law of naval warfare. The Paris Declaration deals in four points with the most important contentious questions: privateering, prize law, and blockade. Point 1 abolished the right of privateering, ie fitting legal authority by letters of marquee from the government. There could no longer be armed ships which were not warships. Points 2 and 3 complement each other in that they regulated two aspects of prize law, the stopping and searching of ships and the fate of the cargo on board. This concerns neutral trading in particular, irrespective of whether ships of the neutral State itself are the carrier, or whether neutral cargo is being carried on a ship of one of the belligerents (Neutrality in Naval Warfare). The rule was now to be that the neutral flag protected enemy goods and that, conversely, neutral goods on enemy ships should not be liable to capture as prize. This protection did not apply to enemy or neutral goods which fell into the category of contraband of war. The further question as to the meaning of contraband became one of the major issues in the law of naval warfare. The extension of the notion of contraband in World War I through ever-increasing lists of conditional contraband goods as well as improper interpretation of the concept of continuous voyage caused widespread uncertainty as to the legal position. The fourth principle of the Paris Declaration, the regulations of the legal institution of blockade, is noteworthy for following a tendency to be found both in the practice of international law and in academic writings of the 19th century, namely, to regulate each institution in the light of what had happened in fact. In order to be legal, a blockade must accordingly be established in fact (Effectiveness). This indicates a change in the approach to the law: instead of looking for a priori principles, the outward facts of international practice are examined and the rule is inductively derived from the practice. Hence the prohibition of ‘paper’ blockades: the mere declaration of a blockade was not enough to allow ships to be searched and goods seized; the enemy port must first be closed in fact by warships and other military forces. This institution was also abandoned at the beginning of World War I.

50  The Paris Declaration did at any rate remain in force for more than half a century and no agreement of equal importance was made to take its place—not even the Declaration of London of 1909 (London Naval Conference [1908 and 1909]). The only provision of lasting effect, however, was the abolition of privateering.

D.  International Law and the Idea of the Nation State

51  The idea of the nation State largely destroyed the political system of the Vienna Congress; later and to a lesser extent, it transformed international law. The change in the map of Europe by the founding of nation States in Greece and Italy, in the German Reich and finally in the Balkan States is obvious. Italian international lawyers emulated the politicians in the middle of the century in concluding from the political events of the time that the nationalist principle would completely transform the law of nations. They were mistaken. GD Romagnosi (Scienza delle constituzioni [1848]) and G Mancini (La naitonalità come fondamento del diritto delle genti [1851]) believed that international law had to take account of the diversity of nations and that the policies of States would then change in relation to each other and become more peaceful. Macini argued that nations, as natural peoples in the sense of a historical and cultural unity, enjoyed certain rights of a kind similar to the human rights of the individual. He claimed that treaties disregarding such rights were void (Nullity in International Law; Treaties, Validity). In such a world, war would be a shameful wrong, even murder. Mancini did finally recognize that his ideas lacked a factual basis and could thus not be applied in international law. He did not repeat them in his later years, but he did not retract them either. Indeed, his theories of nationality influenced to a certain extent the practice of private international law with regard to the law of nationality.

52  The idea of nation States in the sense of rights of natural peoples, the cultural nations, has not been applied in international law, or at any rate only in a fragmentary and imperfect form. Various important States which were not nation States remained in existence in spite of the pressure of nationalist demands in the 19th century and up to World War I. Even in its municipal law Tsarist Russia took no account of the numerous non-Russian nationalities in the Empire. The conversion of Austria to the Austro-Hungarian dual monarchy brought numerous nationality provisions in municipal law but changed nothing from the point of view of international law. Switzerland was and remained the best example of a well-balanced State comprising several different nations but acting externally as a unified subject of the law. The idea of autonomy for national minorities had no influence at all on international law until after World War I (Minorities, European Protection; Minorities, International Protection).

53  Nevertheless, the old institution of the right of option of nationality, which arose out of the religious wars and the Peace Treaties of Osnabrück and Münster of 15 May and 24 October 1648 and was contained in Art. 20 Final Act of the Vienna Congress, underwent a change under the influence of the idea of nationality (Religion or Belief, Freedom of, International Protection). The Vienna Congress was not yet aimed at nations as such, but directed to the attachment to their former dynasty or citizenship of the inhabitants of the numerous territories which were ceded in the new system, or combined to create a new State. The option was intended thereby to enable them to emigrate to any remaining part of their State of origin while retaining their old citizenship or acquiring the citizenship of a successor State of their choice (Emigration; see also Multiple Nationality).

54  The institution changed its character and acquired a nationalist content in Italy. Notables or intellectuals emigrated from States such as the Kingdom of Naples or from territories ruled by the Princes of Bourbon-Parma to the Kingdom of Sardinia, since the House of Savoy was seen as the hereditary ruling dynasty and more and more as Italian. In 1853 Cavour was able to use Art. 20 Final Act of the Vienna Congress to support his strong opposition to the confiscation of the property of emigrants living in Piedmont on the part of other Italian States or Austria. This was, however, at first a matter of the right of option in the old sense: the retention or acquisition of a citizenship different from that of the State of residence was linked with the compulsion to emigrate.

55  The practice with regard to the right of option was only liberalized gradually, principally following the change of sovereignty after 1866 in Lombardy and Venetia and after 1871 in Alsace-Lorraine. From this time it was possible to opt for the old citizenship without fear of being legally obliged to give up one’s place of residence or suffer other disadvantages. Only then was the institution of the right of option fully developed, but it did not survive long. The upheavals of World War I, in which social and national elements combined, robbed the right of option of most of its liberal content.

56  The idea of nations also produced the concept of the self-determination of religious and cultural minorities living in a State in which power is held by members of a different national group with a more or less strong tendency towards assertion of their nationality. Although this concept also only began to be put into legal form in the changed Europe of the period after World War I, it had a precursor in the Treaty of Berlin for the Settlement of Affairs in the East of 13 July 1878 (‘Berlin Treaty [1878]’), adopted at the Berlin Congress (1878), under which religious—which in this context meant also national—minorities in Turkey were to be granted political rights in equality with the ruling Muslim—that is to say, generally Turkish—majority.

E.  International Organizations

57  The need for international cooperation arose from both technical and humanitarian reasons. The increased traffic on the great rivers, and later in the railways, but even more the invention of the telegraph and the parallel development of international postal communications (Postal Communications, International Regulation), made agreements necessary. These agreements were called—initially perhaps not entirely correctly—administrative agreements (International Administrative Unions). They were, however, agreements in which the principle of quid pro quo played a less important part because they served to facilitate administration everywhere by international standardization. Many States were induced by public opinion to make agreements for humanitarian reasons to alleviate hardships caused by war (Humanitarian Law, International). Later, especially at the beginning of the 20th century, attention was also given to human suffering from other causes.

58  In the cases of river navigation, the establishment of an international organization for the Danube goes back to Arts XVI and XVII Paris Peace Treaty (1856). The Danube was internationalized from Braila to the mouths, that is to say on the stretch navigable from the sea without impediment. A permanent control system was established at the same time, to be run by the signatories to the treaty or, for practical reasons, by a commission set up by them. Later, the riparian States were also brought into the European Commission of the Danube (‘Danube Commission’) to enable it to function better. However, non-riparian States outweighed them both in numbers and in political importance. The predominance of political considerations in spite of the primarily technical structure of the institution is characteristic of the way international law developed out of the power relations of that period. The institution served at the same time to resolve tensions with regard to certain matters and regions. The European Danube Commission was not only made responsible for technical matters such as maintaining the navigability of the maritime Danube but also given authority to settle disputes between Member States. The Danube Commission thus had the character of an international administrative body, a subject of international law which took its place alongside the traditional subjects, States. Its organization was structured around the creation of organs to perform its various functions. The idea of the Danube Commission as a separate entity only took shape gradually, however, and its independence from its Member States and from users of the Danube was only laid down in Art. XXI Danube Act (1865).

59  The Central Commission for the Navigation of the Rhine, which was established more than a decade later, was furnished with similar powers. In this case, however, the technical aspect took priority. Initially only riparian States were members, and it was not until after World War I that GB, Italy, and Belgium were added. The Central Commission for the Navigation of the Rhine is also an administrative union with legal personality.

60  In the Western hemisphere developments took a different course although the underlying interests were similar. The St Lawrence River was internationalized in 1854 by a bilateral treaty between the US and GB (St Lawrence Seaway). The lower reaches of the Mississippi, the great South American rivers and the Magellan Straits were opened to general traffic only by unilateral declarations of the States concerned, but with binding force in international law.

61  In the case of Africa, an international commission was established by the General Act of the Berlin West Africa Conference (1884-85) of 26 February 1885 (‘First Congo Act’), Chapter IV of which contains the Act of Navigation of the Congo River and Chapter V the Act of Navigation of the Niger River. However, this commission was largely ineffective in practice in spite of its wide powers in theory.

62  Various other institutions came into existence around this time, the aims of which were to make communications easier to prepare the way for improvement. The Geodetic Union, which was established in 1864 and is represented by a bureau with international jurisdiction, has made an important contribution to the work of surveying the Earth. Following the intensification of world communications by the invention of the telegraph, the International Telegraph Union was founded on 17 May 1865 (130 CTS 198) and given a formal structure, of which a bureau in Berne was the principal feature, by the St Petersburg Telegraph Convention of 11 July 1875 (148 CTS 404; International Telecommunication Union [ITU]). The Universal Postal Union (UPU), which came into existence by agreement of 1 June 1878 (152 CTS 206) after the somewhat more loosely organized Postal Union of 1874, also has a bureau in the Swiss capital. At the beginning of the 20th century the International Wireless Telegraph Convention, adopted in Berlin on 3 November 1906, dealt with the need for standardization of wavelengths (Broadcasting, International Regulation). The legal problems of industrial, intellectual and artistic property led to the establishment of the Berne Bureau for the Protection of Industrial Property by convention of 20 March 1883 (161 CTS 409) and the Berne Bureau for the Creation of an International Union for the Protection of Literary and Artistic Works by convention of 9 September 1886 (168 CTS 185). A Union for the Publication of Customs Tariffs was established on 5 July 1890, with its administration in Brussels (Customs Law, International).

63  These administrative unions are institutions which do not make law as such, but which have to decide legal issues besides exercising their international administrative functions. Although not strictly a judicial activity, this entails settling disputes by a form of decision, and presupposes that the institution is an entity separate from its members, at least alongside States. These organizations were accordingly granted international legal personality. Such unions grew out of some particular need which had arisen internationally. Typically, they comprise a large number of States and tend to be world-wide. Another characteristic feature is that they are able to make law of universal application, and not merely for the Member States, though in a specialized and non-political field—this comes about by virtue of the treaties being open for accession by other interested States and by non-members observing their rules and decisions as a matter of customary law.

64  Among the international agreements inspired by humanitarian ideals, the best known is the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field concluded on 22 August 1864 on the initiative of Henry Dunant (Wounded, Sick and Shipwrecked). The aim of this convention, which was replaced by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field of 6 July 1906 (202 CTS 144) and supplemented on several occasions, was not to amend the laws of war, but to deal humanely with the consequences of war. The International Committee of the Red Cross (ICRC), a private law association founded according to the law of the Canton of Geneva in 1863, was recognized by international agreement as the holder of functions in relation to the signatory States and in this way came increasingly close to acquiring the status of an international legal person as a matter of customary international law in the course of its constant and diverse activities (Non-Governmental Organizations; Non-State Actors). The national Red Cross and Red Crescent Societies which exist in most States as private law associations are in turn accorded recognition by the ICRC (International Federation of Red Cross and Red Crescent Societies; International Red Cross and Red Crescent Movement). The first International Conference of the ICRC, in which States Parties to the Geneva Conventions participate, was held in Paris in 1867.

65  The Declaration of St Petersburg on the use of explosives in war of 29 November/11 December 1868 (138 CTS 297) can also be regarded as typical of such agreements made by States for humanitarian reasons. Its provisions did not achieve much practical importance in fact, but the codifications of the Hague Peace Conferences (1899 and 1907) put its ideas into a new form.

66  The extension of international law through the granting of legal capacity to international organizations is more apparent than real, for the new subjects of the law joining the old community of States have a legal capacity restricted to the discharge of a particular function for the direct satisfaction of particular needs of States or their peoples. International law in its traditional form enables these efforts to be channelled in the appropriate direction. Such associations with limited legal capacity are thus not parts of the international legal system which are absolutely essential for the existence of the international legal community, but merely subsidiary institutions serving a limited purpose only.

67  The number of organizations enjoying legal capacity created by treaty rose gradually until World War I. Some institutions, serving the interest of fishing, marine scientific research or some other, generally scientific, purpose—the number and legal character of which cannot be stated without difficulty—were established by private persons or individual States. Often, however, their work benefits a wider circle of States or indeed the entire international legal community. It is generally doubtful whether they have internationally legal personality, since independent participation in international legal relations can only be shown by practice and the existence of the necessary opinio iuris. This could also apply to international organizations the purpose of which is the furtherance of international legal science, such as the Institut de Droit international and the International Law Association (ILA), both founded in 1873. Although their opinion has on occasion been sought by international courts and tribunals, and they have thus in practice had the functions of helping to develop international law, one cannot speak of their acquiring international legal personality, since any formal rule-making is done by the court of arbitral tribunal, and not by them. All these international institutes, the scientific as well as the legal, are institutions, but, in spite of the names sometimes given to them, not international institutions in the legal sense.

68  A tendency to prefer the organizational form of international institutions is thus clearly discernible in the last third of the 19th century and is characteristic of the pragmatic approach to international law in State practice, as also in legal theory. This gave existing concepts of international law greater stability and made them less easily replaced by new concepts. The process of development became a slow one, and until World War I there was no issue of sufficient importance to spur renewed legal creativity. Towards the end of the 19th century the stagnation of the systematic development of international law indicated that the late classical period was coming to an end.

F.  Settlement of Conflicting Interests by Treaties, Conventions and Arbitration Treaties

69  Even after the collapse of the Holy Alliance, disputes both about general conflicts of interest and about particular problems continued to be dealt with from the point of view of maintaining the balance of power in Europe. The negotiated settlements embodied in treaties sought, where possible, to observe this continuing principle of 19th century politics. The tendency was, however, to involve in the negotiations as many as possible of the States with an interest in the aspect of the balance of power raised by the particular case and, moreover, to concentrate on agreements with a general background. The Paris Peace Treaty (1856) was followed immediately by the Paris Declaration. This does not mean that the great mass of treaties between States concerning matters of lesser importance lacks a broader perspective and is of no interest for the codification of international law.

70  The restoration of the balance of power in Europe to counter the Russian advance in the south eastern region of Europe can be seen particularly clearly as the aim of the Berlin Congress (1878). Russia had to give up the strong position which it had achieved in 1877 by military success, apart from Bessarabia with its access to the eastern mouth of the Danube, the Kilia arm, while the new Balkan States, in particular Romania, were strengthened. Since the parties to the negotiations allowed at the same time an increase in Austrian influence in Bosnia, Herzegovina and Novibazar, the Berlin Treaty (1878) deeply affected the hitherto close relations between Prussia and Russia. The provisions of Art. 27 Berlin Treaty (1878) concerning navigation of the Danube were acceptable to all parties and thereby offered a settlement without the seeds of future conflict. The grand design of the Berlin Treaty (1878) lasted on the whole until 1912, in spite of the constant Balkan crisis. More than once during that period agreement was even reached between Austria and Russia on particular points in this area, as in the St Petersburg Entente of 1897 and the Mürzsteg Agreement of 2 October 1903.

71  When obvious political interests gave way to real, but less obvious, economic interests, agreements could even be reached from which a new legal institution slowly emerged. The trade treaties of this period contained a most-favoured-nation clause, though at first not yet expressly designated as such. The device of involving a number of States automatically by inserting such a clause in a bilateral treaty had long been used in European international law, in particular for concessions affecting sovereignty generally. It can be found as early as the Peace of the Pyrenees of 7 November 1659 (5 CTS 325). The intensified involvement of the European powers in economic relations with each other gave this device new importance. Thus the Frankfurt Peace Treaty (1871) between the German Reich and France provided for mutual consideration and at the same time respected existing favourable treaties, though the technique of most-favoured-nation treatment was not yet fully developed. The fully developed institution of most-favoured-nation treatment is to be found, however, in the Madrid Convention of 3 July 1880 (165 CTS 4), in which the European States concerned agreed on common action in Morocco on the basis of mutual most-favoured-nation treatment for all trade treaties and rejected independent individual action. Where the realization of the political power potential of one of the interested States in a region is not urgent, an economic settlement can even become a stimulus to political understanding.

72  In agreements with regard to less developed regions a policy was followed which was based on the elastic principle of the Open Door. This permits free competition in developing such areas economically, and excluded by treaty the exertion of power to impede economic activity. This idea underlay the settlement of colonial interests at the Berlin West Africa Conference (1884–85) and led to a compromise at the expense of British claims in the First Congo Act. The signatories considered the landholding of King Leopold II of Belgium, which was organized in the quasi-private law form of the International Association of the Congo, to be the appropriate means of moderating rivalry between them. The political result of the negotiations was thus the recognition of the Congo State (Congo, Democratic Republic of the), while the economic result was the recognition of freedom of trade for all parties in the whole adjacent territory, now called the Congo Basin, with agreement on excluding the use of armed force in any disputes. Slave trading was to be not merely banned but also made subject to penalties (Art. 9 First Congo Act). The policy of promoting legitimate trade interests was reflected in the internationalization of the Congo and Niger rivers.

73  Although the general benefit from treaties differed from case to case, an appreciation of the common interest can be seen in every case. The willingness to establish a procedure for dealing with disputes only appeared later, and was even less developed in Europe at this time than in the American hemisphere. The treaties on freedom of navigation for merchant shipping through straits and canals lacked any provision for a procedure for the settlement of disputes or for deciding matters of doubt. Recourse to such procedures was avoided whenever important political considerations were involved. The settlement of comprehensive general questions with political implications was left to diplomatic contacts and negotiations. This reflects the importance still attached to State sovereignty and the consequential legal equality of States (States, Sovereign Equality). The general policy was to maintain the balance of power in Europe while at the same time keeping the crisis points of the day in check and reducing the tension from growing colonial rivalry by use of the principle of free trade, which was seen as a moderation influence. The international legal community of the second half of the century was well aware that all subjects of the law shared the same destiny irrespective of ideologies.

74  It was largely the influence of the American example which led to the adoption of formal methods for the settlement of disputes by arbitration. The US gave preference to this system after the successful fulfilment of Secretary of State John Jay’s intentions at the end of the 18th century with the Jay Treaty in 1794 (Arbitration and Conciliation Treaties). Treaties of this kind were concluded with many States, particularly in South and Central America: with Mexico in 1839, 1848, and 1868; Ecuador in 1862; Peru in 1863 and 1868; and Venezuela in 1866 and 1885. The US also concluded such treaties with European States, including Spain in 1819 and 1871, and GB in 1853. Various treaties were concluded between the US and GB containing an arbitration clause (Compromis), particularly after the American Civil War. The best known example of an arbitration under such a treaty is the Alabama Arbitration, which had most serious political implications because of the friendly relations long maintained by GB with the South. This is the explanation of the British acceptance of the Washington Rules of 1871 on the rights and duties of neutrality in sea warfare. The transition to permanent arbitral tribunals was made in the dispute between GB and the US concerning the fisheries in the rich Canadian territorial waters (Fisheries, Coastal), the North Atlantic Coast Fisheries Case (1907) (11 RIAA 167), which the Permanent Court of Arbitration (PCA) decided finally on 7 September 1910, after an interim award in 1877 (Interim [Provisional] Measures of Protection). Arbitration in the 19th century was mainly confined to bilateral treaties and matters in which the political interest was of secondary importance; it was accordingly not yet fully developed as a legal institution.

G.  Growth of Multilateral Conventions

75  The facilitation of general economic and cultural exchanges across State frontiers by the advance of technology also intensified the corresponding relations of States with one another, provided new fields of action for diplomacy, in particular for the consular branch (Consular Functions), and made it necessary to develop the rules of law in this area, thus enriching international law by adding new aspects.

76  The revisions of the Paris Convention for the Protection of Industrial Property of Berne (1886) and Brussels (1900) and the numerous railway conventions led to the establishment of further international bureaux, which also had their seat in Berne (Railway Transport, International Regulation). More common were conventions which did not establish an international institution, such as the Madrid Agreement for the Repression of False or Deceptive Indications of Sources on Goods of 14 April 1891, which provides for certain reciprocal obligations with regard to the suppression of false indications of origin. The Montevideo Convention on Private International Law of 12 February 1889 adopted on the initiative of the more developed South American States, principally Argentina and Uruguay, did not have any real impact. The Convention relating to Civil Claims of 17 July 1905 (199 CTS 1) had a more lasting effect. The various international radio communications conventions of 1906, 1907, and 1912 ushered in a new era of technological links, regulation of common interests and, later, of cooperation in the cultural field.

77  Maritime law had for a long time been in no need of special international codification, since an extensive body of customary law had been developed, with the maritime nations largely following British precedents. The maritime rivalry which developed between GB and the US in the second half of the century affected the law of the sea in peace time also, and led to the holding of an international maritime conference in Washington in 1886 to agree on rules for maritime signals, minimum standards of seaworthiness for ships, and the rescue of shipwrecked persons. A Brussels Convention of 23 September 1910 laid down certain rules relating to the provision of assistance, and to salvage, in the event of collisions at sea. The Titanic disaster of 1912 led to the conclusion of the London Convention for the Safety of Life at Sea of 20 January 1914 establishing an international ice patrol (219 CTS 177).

78  Cultural exchange was almost exclusively a private, not a State, concern in the 19th century and in the first decade of the 20th century, and was accordingly not a matter involving international law. For this reason the growth of international law through bilateral and multilateral treaties in this area, going beyond purely commercial aspects, belongs to a later period (see also Trade and Culture).

79  International law in this period was shaped not only by the forces of power pragmatism and technological perfectionism, but also by the idealism of the century, the legacy of humanism and the Enlightenment, and the fruits of a re-awakening Christian sense of responsibility with regard to the suffering in this world. The care of the wounded, sick, and shipwrecked and of prisoners of war, which became particularly urgent with the increasing technological sophistication of weaponry, and led to the Geneva Conventions of 1907, 1929, and 1949 (Geneva Conventions I–IV [1949]), fitted easily into traditional patterns of international law because of the political implications of military conflict. Other conventions, dealing with entirely non-political matters, took longer to see the light of day.

80  Public opinion, which acquired a global character through the expansion of means of communication, was often stirred in the 19th century by concern for measures to combat widespread epidemics. There was also a desire to preserve health standards which were already quite high. Anxiety was now caused by outbreaks of diseases in other parts of the world which quickly became known, and thus gave rise to alarm, regardless of how far from the centre of Europe the place of origin was. Public attention was focused on sources of epidemics in the Near and Middle East and overseas. The danger was made real by sudden spread of epidemics to Europe, triggered by the predisposition to infection of considerable parts of the population, attributable to the deprivation caused by unemployment during the great economic crises in the fourth decade of the 19th century. As a result of malnutrition the broad masses in the slums of the major European cities and industrial areas were susceptible to illness, and cholera epidemics occurred there as soon as the bacillus was brought in by the increased traffic from the Orient. The States of Europe reached agreement at the first sanitary conference in Paris in 1852 on the need for measures to combat cholera. It was, however, only in the Convention of 27 May 1853 that work in the unfamiliar subject was complete. In the following decades international authorities were established with their seats near the source of the danger, at Constantinople and Bucharest (Public Health, International cooperation).

81  Humanitarian aims can, however, also be entirely free of any advantage to those concerned. Examples of this are to be found in the General Act of Brussels concerning Slavery (1890) and the Agreements for the Suppression of the White Slave Traffic of 18 May 1904 and 4 May 1910 (Human Trafficking).

H.  Development of International Law in the Authors of the Late Classical Period

82  Towards the middle of the 19th century the literature of international law finally shook off its rationalist, natural law and abstract character.

83  The earliest writer to display the modern approach was probably the American J Kent. His Commentaries on American Law: International Law (vol 1 1826) gives an account of the law of North America and includes international law as derived from the practice of States on the principle that international law is a part of the common law. The approach of H Wheaton, whose work as a diplomat had made him familiar with continental European law, differs in important respects. His Elements of International Law, first edited in 1836, could in many ways be a European textbook on international law of that period, although it is in essence an empirical compilation. His background as a scholar is shown by the title of his well-known work Histoire des progrès du droit des gens en Europe (1841). TD Woolsey’s book, Introduction to the Studies of Political Science on Nationalism and Internationalism (1886), is pedagogically pragmatic: his writings were directed at a particular aim, and he became known especially for his articles on war during the American Civil War. Among the American teachers of international law who adopted a sober approach throughout and had a strong educational influence is F Wharton with his Digest of the International Law of the USA (3 vols 1884–86). Between them comes DD Field, author of Outlines on an International Code (1872), who had a somewhat ideological tendency to pacifism.

84  Close to the Americans, the British writer WO Mannings gives an account of the principles of international law drawn from practice, including in particular the practice of the British courts, in his Commentaries on the Law of Nations (1839). A Polson’s Principles of the Law of Nations (1848) is somewhat more theoretical, derived from the common law and tending towards a natural law approach. A dry, somewhat schoolmasterly account of the international law in force is given by Sir Robert Philimore in his Commentaries upon International Law (3 vols 1854–61). Vol 3 contains an excellent account of the law of the sea, concentrating on the results of the Paris Declaration. Sir Travers Twiss (The Law of Nations: The Rights and Duties of Nations in Time of Peace, [1884]) starts from the theory that the rights and duties of States take precedence over other rules of international law whether derived empirically from treaties or based on customary international law (States, Fundamental Rights and Duties). He strikes a sober and practical note, however, with The Black Book of the Admiralty (4 vols 1871–76). For a complete understanding of another important side of British views on international law in this period one must include the analytical writer on legal theory, J Austin, who was influenced by continental thinking, especially at first by the German historical school of law. Since Austin placed particular emphasis upon the nature of law as a command, law between equals is for him not law in the true sense, although he does not dispute the necessity for, and certain effects of, international law. Thus on the one hand he can be said to deny the existence of international law as law, but on the other hand he exerted a strong influence on the theoretical approach to international law in GB, although he published no major works. The principal statement of his views is the Lectures on Jurisprudence or the Philosophy of Positive Law (5th ed 1885), published posthumously. In these lectures Austin builds a bridge by arguing that the rules of international law, which belong to morals rather than to law, could become actual law by being applied increasingly by national courts. We see here again evidence of the Anglo-American concept of the relationship between the common law and international law.

85  Continental writings of the period on international law are marked by a tendency to be dryly didactic, and are in many ways similar to the practical courses in the universities of the 18th century. They do, however, begin to pay more attention to principles, with institutions and concepts being more thoroughly worked out, though not necessarily described as such.

86  Some international lawyers, both academic and practical, displayed a certain nationalist tendency which tempted them to become defenders of their nations and their States, even to act as their mandatories. If a somewhat unrealistic nationalism is characteristic of Mancini’s thinking, that applied even more clearly to his successors. The danger of a jurisprudence based on particular interests became greater. One of Mancini’s pupils, A Pierantoni, in his Storia degli studi del diritto pubblico delle genti (1869), put forward an idealistic view of international law, in which an ardent nationalism asserted itself in the spirit of the risorgimento, taking nations as the basis of international legal relations and subjective rights. His Trattato di diritto internazionale (1881) is a more mature and balanced work. The views of P Fiore in his Trattato di diritto internazionale pubblico (1865) are Italian in an entirely different way and almost untouched by the current of contemporary ideas, plain and clear, rather in the scholastic tradition. Spanish and, in particular, French translations of the work made it part of the common literature of continental European international law. Similar, though of somewhat lesser stature, are the accounts of international law by Carnazza-Amari, Del Bon, Sandona, and Pertille.

87  The realistic legal positivism of most of the Italian authors is also shared by those writing in French in this period. In France too there were some works in which the French national point of view was given most weight. These should, however, be regarded not so much as accounts of international law but as essays in political history, as analyses of national and international developments from the point of view of a particular environment and the psychology of a particular society. They did, nevertheless, exercise a certain influence on French views on international law at that time, particularly the works of Thiers, Taine, and Seignobos. The historical account of international law by the Belgian F Laurent, Histoire du droit des gens et des relations internationals (1851), can be placed in the same category, except that there is a rationalist concept of progress running through it. It is more a description of the political relations between the States of Europe and their supposed development towards peaceful coexistence with one another than an account of the development of international law in practice or of academic opinions. The most commonly used works in France in the last third of the century were those of P Pradier-Fodéré: Principes généraux de droit, de politique et de législation (1869), Traité de droit international public (8 vols 1885–1906), and Cours de droit diplomatique (1899). His approach is somewhat broad, positivist, perfectionist and didactic. The writing of T Funck-Bretano and A Sorel in Précis du droit des gens (1877) is clearer and more concise: they deal very constructively with particular problems.

88  Another noteworthy writer on international law in French is the Swiss A Rivier, who taught in Brussels and is best known for his Principles du droit des gens (1896). Rivier presents the principles of international law clearly within a sound theoretical structure, yet without neglecting practice. The writings of F von Martens, a Baltic German and an imperial Russian councillor of State, have a more politically pragmatic character than other works in French on international law. In his Treaties on International Law, which appeared in 1883 in a German translation under the title Völkerrecht, he deals chiefly with those principles of positive international law which he had himself frequently used in practice as an instrument of Russian foreign policy. Therein, we can clearly see the danger which was beginning to develop towards the end of the century: the tendency for the international lawyer to become an advocate in the defence of his own country. Another Baltic German, Baron Taube, was able to avoid this danger because of his highly developed historical sense, although he too had earlier served at the highest level of imperial Russian politics. His work Les origines du droit international (1894–99) shows a sure grasp of the origins of modern international law; his Système du droit international (1909) combines the practical experience of a statesman with a clear, keen sense for theoretical structure. The work of the Argentinean C Calvo, Le droit international théorique et pratique (5th ed 1896), is exceptionally close to French ideas and was immediately translated into French.

89  German writers on international law in the last third of the century developed a workable theoretical structure parallel to that of the French and Italian writers with certain borrowings from common law ideas, and thus completely broke with Heffter’s theories, which had held the field for a long time. A von Bulmerincq’s Systematik des Völkerrechts appeared in 1858 and his Praxis, Theorie und Codification des Völkerrechts in 1874. His characteristically objective presentation and clear thinking are already apparent in the earlier work. The best known exponent of international law writing in German at this time is the Swiss JK Bluntschli, whose major work Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt (3rd ed 1878) approaches the subject from non-legal points of view but nevertheless presents positive international law in a systematic form. This had strong influence on German thinking on international law even before the foundation of the German Reich. The final decades of the century then brought a large number of painstaking accounts of international law. Those most widely used were K Gareis’s Institutionen des Völkerrechts (1888), P Heilborn’s System des Völkerrecht (1896), and E von Ullmann’s Völkerrecht (1898). In F von Holtzendorff’s Handbuch des Völkerrechts there are contributions by himself, by H Geffcken, K Garesi, and F Stoerck which display a practical realism. F Stier-Somlo took up the idea of the Handbook again in 1912 but the principal publications in this field belong to a later stage of German scholarship in the field of international law. The German literature of international law also contains counterparts to the Italian national idealism, though they were less forceful and did not have much impact, eg F Dahn’s Völkerrechtliche und staatsrechtliche Studien (1884). The effect of the first Hague Peace Conference of 1899 was felt less in the practice of the law than in the everyday discussion of legal opinions. The proponents of State sovereignty of the old school, including those who denied the existence of international law, stood face to face with those who favoured the development of international law into as complete a system of world law as possible. The theoretical treatment of the basic doctrines of international law was not much affected by this debate, however. The first editions of F von Liszt’s Völkerrecht (1898–1903) and A Zorn’s Grundzüge des Völkerrechts (1903) can accordingly be placed in the period of late classical international law.

90  With the exception of isolated, critically fruitful attempts to approach international law in new ways, which appeared around the turn of the century, such as L Duguit’s L’Etat, le droit objectif et la loi positive (1901), applying sociological ideas, or H Triepel’s Völkerrecht und Landesrecht (1899), which was influenced by Austin, scholars in the field of international law in Europe continued to state the principles derived from practice and maintained their intellectual independence without leading the way to new developments. The practice of international law was developed far more by independent political action, with the support of foreign affairs’ administrators schooled in international law and, in general, taking legal considerations into account.

I.  The Hague Peace Conferences as the Close of the Period of Classical International Law

1.  Occasion and Subject-Matter of the Hague Negotiations

91  The initiative for calling the first Hague Peace Conference of 1899 unexpectedly came from Russia, which had until then been the most aggressive of the Great Powers and still retained the constitutional form of an absolute monarchy. Under the neo-mercantilist finance minister Count Witte the need to industrialize the still underdeveloped Russian Empire increased the Russian interest in international trade and economic links, for which peace was an essential condition. This is one of the reasons which led the foreign minister, Count Muraviev, to persuade Tsar Nicholas II to issue his well known peace manifesto (Peace, Proposals for the Preservation of). The initiative for the second Hague Peace Conference of 1907 came from the other hemisphere, from US President Theodore Roosevelt. It was clear to a large number of statesmen, including those of the major powers, that hostile tensions in major international relations meant a crisis for the law. It was hoped, however, to remove discord by eliminating uncertainties and correcting deficiencies in positive international law. The revival of the idea of the peaceful settlement of international disputes in particular gave some ground for hope, especially when coupled with arbitration proceedings as the means of achieving settlements and an attempt to create the necessary institution, such as a permanent court of arbitration. There was also the possibility of codifying urgent and practically useful areas of international law such as the laws of war.

92  The first Hague Peace Conference resulted in three conventions and three declarations, which dealt with the law of land warfare and naval warfare and the peaceful settlement of international disputes. The PCA was established as a result of the International Convention for the Pacific Settlement of International Disputes of 29 July 1899 (‘1899 Hague Convention I’), with a bureau at The Hague. A resolution was also adopted on limiting the parties’ military spending (Arms Control; Disarmament). At the second Hague Peace Conference 13 conventions were concluded, and a declaration and a resolution adopted, which in part covered the same ground as that covered by the conventions, declarations, and resolutions of the first Hague Peace Conference. In the end result, however, the common concerns of the powers were sublimated into abstract problems and in practice made no real contribution to the political resolution of the major tensions in the world. The parties were conscious of the common good of the international community, but did not take this awareness beyond dealing with topics which, though politically important, were of a very general nature and not relevant to any existing situation. This was the most the two conferences could achieve.

93  The nature of the work of the Hague Peace Conferences appears more clearly from the matters which were not considered. All reference to actual conflicts was avoided even when more than two States were involved. Matters which could spark a conflict, particularly in the law of the sea, waited in vain for the difficulties to be lessened by modernization of the law. A clear statement of the law would not only have reduced certain conflicts between GB on the one hand and Russia or the US on the other—which were gradually assuming secondary importance—but might possibly also have prevented the naval rivalry which was building up between GB and Germany, particularly since the enactment of the German Navy Law of 1898, by enabling common action to be taken at an early stage of the rivalry. The subject of prize law, always a controversial one, was not considered at all at the first Hague Peace Conference, and only in a dilatory fashion at the second. The only important formal instrument was the Hague Convention III for Adaptation to Maritime Warfare of the Principles of the Geneva Convention 1864 signed on 29 July 1899. The remainder dealt with particular problems of marginal importance in the law of naval warfare. The principal subject, the codification of the major principles of the law of naval warfare, was disposed of in the form of a voeu (vow) and referred to a future conference on the law of the sea.

94  The whole problem of colonial expansion was excluded from the conferences from the beginning by tacit agreement in view of the heterogeneity of the participating States. In the year of the Fashoda incident and the relaxation of the Monroe Doctrine by the US with the expansionist war against Spain, a settlement on the basis of mutual concessions and agreed demarcations was urgently needed. This would at least have meant that the attempt was undertaken to impose basic limitations on the excessive ambitions of the various powers.

95  The question of disarmament, which was raised by a considerable part of the intelligentsia of the civilized world in the peace movement in a manner which could not be ignored, was not answered but parried with a non-binding resolution on the limitation of military expenditure.

96  The notion that the sovereignty of States must be maintained inviolate and unimpaired for reasons of prestige has remained down to the present day the greatest obstacle to a peaceful settlement of conflicting interests within an international legal system still based essentially on the equality of the subjects of law. At both Hague Peace Conferences this idea continued with undiminished vigour to make any decisions impossible which would have a real effect in practice. Even if the settlement of certain tangible conflicts over certain issues were to be excluded, the introduction of a system of compulsory arbitration to which the parties had to resort before taking up arms in a dispute would have provided a starting point for the development of international law in one critical area. However, both France and Great Britain objected strongly to a comprehensive definition of the matters falling within the reserved domain, and thus excluded from arbitration. The compromise proposed finally by Britain—to declare arbitration to be compulsory, but at the same time to leave to the State concerned the decision on whether any of the exceptions applied—was self-contradictory. It was the diplomatic misfortune of a German representative to expose the contradiction. Because of this the German Reich was—unjustly—accused even then of not wanting peace. It is overlooked that many of the conventions also suffered from the defect of the general participation clause (clausula si omnes), that is to say, they were only binding if all parties to a dispute were signatories. Because of this they later became nugatory in practice, in particular on the outbreak of World War I.

97  Nevertheless, the PCA was not merely a demonstration of the desire for peace, which exists in some form everywhere and stems from the fear nurtured by the unforeseeable consequences of a modern war, but was also something entirely new in international law. For the first time a permanent institution was created with jurisdiction to settle disputes and with standing organs. The arbitrators appointed by the parties for the panel maintained at the bureau of the court were to be persons of the highest legal and political standing. Thus a careful, objective examination of any dispute was to be always available, so too the procedure of conciliation in accordance with equity if this has been provided for in special bilateral arbitration and conciliation treaties. Although legal considerations would usually play the major part in the procedure, the parties did not yet venture to introduce formal proceedings or awards having the force of judgments either in 1899 or in 1907. Recourse to arbitration could in any event help to avoid military conflict if only those concerned would make unrestricted use of it.

2.  Arbitration Treaties for Political and Economic Disputes

98  Substantive efforts by States for peace took the form of seeking a formal settlement of disputes which would avoid armed conflict or at least prevent the disruption of economic life. Even before the Hague Peace Conferences met, arbitration treaties were being concluded in increasing numbers, particularly in the American hemisphere. Around the same time as the first Hague Peace Conference, a pan-American congress, the first International Conference of American States (1889–90) was meeting in Washington with the object of making comprehensive provision for inter-American arbitration. The American example had already had an influence on European States, especially where relations with South American countries were concerned. Moreover, in 1897 Great Britain concluded a legally significant arbitration treaty with Venezuela. The arbitral tribunal, over which F von Martens presided, is notable for its recognition of prescription as a legal basis for the acquisition of territory.

99  Even the 1899 Hague Convention I stimulated or increased the readiness of the participating States to conclude arbitration treaties. Since political disputes were excepted from arbitration by the usual vital interests clause, unless the contrary was expressly agreed in a particular case, arbitration clauses were at first found principally in trade and economic treaties, though these frequently had political implications because of colonial economic expansion. The number of arbitration treaties greatly increased during the first decade of the present century (Martens NRG vol 4 ‘Table Chronologique’). Other treaties were concluded between then and World War I. As the idea of arbitration spread, arbitration clauses even began to appear in political treaties such as the peace treaties of London of 30 May 1913 (107 BFS 656) and Bucharest of 10 August 1913 (107 BFSP 658) which brought the Balkan wars to an end. The later treaties occasionally expressly removed the vital interests clause, if there was felt to be no danger in doing so, eg the Arbitration Convention between Denmark and France of 9 August 1911 (214 CTS 185). Most of the treaties referred legal disputes arising between the parties to the PCA, either generally or in certain defined cases.

100  On the whole, however, in spite of the large number of individual arbitration treaties, arbitration did not achieve great importance, because the vital interest clause excluded disputes concerning fundamental issues from its scope. The power struggles between the major powers occurred at first on the fringes of the territories which they controlled or into which they wished to expand. Other internationally recognized but weaker States were sometimes affected if they were to be brought for economic reasons within the sphere of influence of one or more of the major colonial powers. Rivalry with other Great Powers often lay behind such disputes, and it sometimes came out into the open. Conflicts in the fringe areas frequently engendered wars: the Boer War 1899–1902; the intervention by the Great Powers in China following the Boxer Rising 1900–01; and the Russo-Japanese War 1904–05. The outcome of the conflicts was either the establishment of sovereignty or at least an expansion of power by the Great Powers at the expense of weaker States. As a secondary effect certain powers gained an advantage over rival powers. The conversion of the Boer War States into a British colony, which in 1910 attained dominion status as the Union of South Africa, was an example of the first kind of development. The Yangtse Treaty of 7 September 1901 (94 BSP 686) achieved an equitable settlement from the standing point of the powers concerned as a result of their joint intervention with the declaration of the principle of the Open Door policy in China. On the other hand the occupation of Manchuria by Russia occurred independently of this action. The Russo-Japanese War of 1905 was followed by a Japanese protectorate over Korea.

101  Even when an armed conflict over minor disputes in distant areas was avoided altogether, or at least between the Great Powers, such disputes still provided an occasion for the loser to recall the unresolved questions arising from the direct proximity of the winner in Europe, questions which were intrinsically of greater importance but which had taken second place to overseas politics for the time being. These differences were now felt more keenly and became the focus of diplomatic action. Thus the Franco-British Treaty of 21 March 1899 concerning the Delimitation of the Respective Possessions to the West of the Niger (91 BSP 38) which settled the Fashoda incident, put an end to French colonial expansion in Africa, in spite of the British recognition of the Western Sudan (Sudan) as a French area of interest. The old differences between France and its German neighbour were emphasized again with greater force; the essentially fair settlement prepared the ground and provided the impetus for the policy of the Entente Cordiale of 1904 with Great Britain.

102  The Portsmouth Peace Treaty of 5 September 1905 (199 CTS 144) which ended the Russo-Japanese War; together with the treaties of 1907 and 1908 between Japan, the US and the interested European Great Powers, meant the end of European expansion in East Asia, and opened the way for a Japanese attack on China as a long-term possibility, though Japan at first joined in upholding China’s integrity. Above all, however, it cut off Russia’s imperial expansion in East Asia. As had happened so often in the history of Russia, the focal point of imperial policy then shifted to the West, first to the Balkans. The Russo-British Convention relating to Persia, Afghanistan and Tibet signed at St Petersburg on 31 August 1907 (204 CTS 404) is also relevant in this connection. It struck a balance between the influences of the two powers in Central Asia. Although the independence of Persia was formally guaranteed, in practice it was divided into spheres of influence. This also meant an end for the time being to expansion in distant regions by the two powers and forced them to turn to other interests—in Russia’s case in particular to European interest. It enabled GB to give support to the German Reich in the matter of the Baghdad railway. The first and second Morocco crises caused a dangerous increase in tension between the two major powers of continental Europe in spite of the provisional settlement at the Algeciras Conference in 1906 and in the Convention between France and Germany respecting Morocco and Equatorial Africa, signed at Berlin on 4 November 1911 (214 CTS 395), and in spite of the stabilization of French rule in Morocco and the cession of a part of French Congo to the German Reich.

103  Even though the awareness of the danger of a war and of the unforeseeable consequences of war in a technological age increases, the power struggles were intensified: attempts were accordingly made on all sides to find safety through armaments and alliances, through the formation of groups of roughly equal strength, with attention now focused on central Europe. By comparison, the idea of reaching an equitable settlement through a formal procedure could only lose in importance.

3.  Final Attempts to Reduce Tension

104  The London Naval Conference met on 4 December 1908 to activate the conventions of the second Hague Peace Conference dealing with the law of naval warfare, an important area of international law with well-developed rules of customary international law, and in particular to establish an International Prize Court (IPC). The conference ended with the Declaration concerning the Laws of Naval War of 26 February 1909, having made considerable progress; this finally came to nothing when the British House of Lords rejected the Naval Prize Bill of 12 December 1911. The failure of the strongest sea power to ratify the convention which was drafted on the basis of the declaration prevented its entry into force because of the general participation clause. The nine chapters of the declaration are an excellent statement of the law of naval warfare as it stood at the beginning of the present century, reconciling continental European and Anglo-American views and removing minor differences in the approaches of the Americans and the British. World War I destroyed the substantive agreements which still existed in the law of maritime warfare and with them a large part of the customary international law in this area. Other formal, and later substantive, casualties were above all the Hague Convention VI on the Status of Enemy Merchant Ships at the Outbreak of Hostilities of 18 October 1907 and Hague Convention XI on Certain Restrictions with regard to the Exercise of the Right of Capture in Naval War of the same date. In the law of contraband, an interpretation of the concept of continuous voyage favourable to neutral goods did not become operative. There were scarcely any limits to the extension of the scope of the classes of goods which could be regarded as contraband. The totality of maritime war was conceded in this respect also. The application of the 1899 Hague Convention III for Adaptation to Maritime Warfare of the Principles of the Geneva Convention 1864, eg the protection of hospital ships, again became a matter of doubt.

105  The failure to establish the IPC also increased the uncertainty of the law. An attempt to secure a balance in the actual level of naval armament between the two strongest naval powers and rivals, GB and the German Reich, was equally unsuccessful. In spite of negotiations conducted in a spirit of compromise on both sides on the occasion of the visit to Berlin of the British Liberal war minister Lord Haldane in February 1912, there was no disarmament at sea or even limitation of such armament. The political differences on the question of the possible exercise of power at sea became more acute; British-French and Franco-Russian naval conventions followed.

106  The last attempt before the impending disaster to reach a peaceful settlement of disputes which the vital interest clause had prevented from being submitted to arbitration came from the American Secretary of State WJ Bryan with the Bryan Treaties (1913–14). Bryan sought to make use of previous work on non-ratified treaties with France and GB. These 1911 versions involved the four Great Powers, including the German Reich, and aimed at reducing the effect of the vital interest clause (Domaine réservé) in the 1907 arbitration procedure by interposing an international commission to decide whether the clause was applicable. The procedure was painstakingly worked out but the plan failed because of objections by the Senate. The new proposals took American national rules, functions, and power positions into account, but they did not achieve the hoped for success. Although they were placed before the powers with whom the US maintained diplomatic relations in April 1913, these treaties were only concluded and ratified with the Western and Eastern European Great Powers after the beginning of the war. No such treaty came about between the German Reich and the US.

107  Although the Bryan Treaties had no effect on World War I and their practical importance was slight, these efforts, which were reflected in carefully drafted treaties, deserve attention as the last evidence of a development of international law on which the experience of a comprehensive modern war had not yet left its mark, but which sought to make war the last resort of politics and, if possible, legally to eliminate it completely. The fact that this development started again after the war on a larger scale hardly diminishes the importance of the earlier diplomatic and legal activity since the later efforts have similarly only produced very modest results.

108  The political events which led to the outbreak of World War I added nothing to the existing institutions of the law in the international field. None of the States should be condemned by history because the war began with formal declarations of war in accordance with the traditional classical laws of war. This procedure was in no way a sign of an unbridled spirit of aggression, but represented the form required for the commencement of a war, as the permissible political weapon which it was considered to be at that time, assuming the step to be lawful, as it had always been until then.

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