Nineteenth-century International Law Research Articles

International Law and the Precarity of Ottoman Sovereignty in Africa at the End of the Nineteenth Century

As a state that occupied an unstable position on the continuum of late nineteenth-century European inter-imperial system of sovereignty—oscillating between a subject and an object of new forms of imperialism—I argue that the Ottoman Empire presents a unique case study through which to examine the process of legalistic exclusion of non-Western states from an emerging international system of legal relations. This article investigates the precarity of Ottoman sovereignty in the Horn of Africa at the end of the nineteenth century in relation to a growing European global legal hegemony. It historicizes the process of Ottoman exclusion from the ‘family of sovereign nations’ with all the rights and privileges that belonging to this exclusive group of European imperial states entailed. This is done through an excavation of the roots of nineteenth-century international law and its relation to the Ottoman state, followed by the demonstrative example of the Ottoman-British negotiations surrounding Ottoman rule in Zeila (Somalia) and Massawa (Eritrea) between 1885 and 1895.

Terminological Entrepreneurs and Discursive Shifts in International Relations: How a Discipline Invented the “International Regime”

AbstractThe disciplinary history of international relations (IR) is usually told as a succession of theories or “isms” that are connected to academic schools. Echoing the increasing criticism of this narrative, we present in this article a new perspective on the discipline. We introduce concepts from linguistics and its method of digital discourse analysis (DDA) to explore discursive shifts and terminological entrepreneurship in IR. DDA directs attention away from schools of thought and “heroic figures” who allegedly invented new theories. As we show exemplarily with the rise of “regime theory,” there were entire generations of IR scholars who (more or less consciously) developed new vocabularies to frame and address their common concerns. The terminological history of “international regime” starts in nineteenth century international law, in which French authors already used “régime” to describe transnational forms of governance that were more than a treaty but less than an international organization. Only in the 1980s, however, was an explicit definition of “international regime” forged in American IR, which combined textual elements already in use. We submit that such observations can change the way in which we understand, narrate, and teach the discipline of IR. DDA decenters IR theory from its traditional focus on schools and individuals and suggests unlearning established taxonomies of “isms.” The introduction of corpus linguistic methods to the study of academic IR can thus provide new epistemological directions for the field.

The Co-creation of Imperial Logic in South American Legal History

Abstract This study is part of the current trend of expanding ‘histories of international law’. From a regional perspective, I analyse not just the South American dimension of the process known as the ‘universalization of international law science’, but also focus on the ‘ideological use’ of ius gentium europaeum in the debate on the occupation of indigenous territories governing by the nation Mapuche in the south of Chile (1861–1883) and then the discussion on the legitimacy of the Saltpeter War between Chile and the Bolivian-Peruvian Alliance (1879–1884). I argue that the Chilean national legal discourse applied a core argument of nineteenth-century international law to legitimize its foreign policy in those conflicts: ‘the standard of civilization’. Thus, it is possible to speak about a domestic recreation of imperial logic as part of the globalization of the European law of nations in the nineteenth century.

Rethinking the History and Theory of Jus Publicum Universal : The Formation of China as a “Semi-Civilized” Legal Subject

Much of the existing scholarship on the universalization of nineteenth-century international law has framed it in terms of the imperial West's domination of non-Western societies. This article complicates and qualifies this conventional state-centric narrative by investigating the juridical, capitalist production of China as a semi-civilized international legal subject. It examines the foundational modern Sino-British/Western commercial and extraterritorial treaties, as well as the treatises of a new professional class of British international lawyers-James Lorimer (1818–90), John Westlake (1828–1913), William Edward Hall (1835–94), T. E. Holland (1835–1926), Thomas Lawrence (1849–1920), and Lassa Oppenheim (1849–1920). The juridical production of China as a semi-civilized legal subject throws into relief the dual capitalist nature and significance of the universalization of nineteenth-century international law. On the one hand, this civilized legal discourse underwrote a novel liberal conception of a universal international law ( jus publicum universal ) within which China was formally included as a quasi-legal subject. On the other hand, it also underwrote a particularistic, Euro–centric international law, which excluded China from its global domain and denied it basic sovereign rights. In this way also, civilized international law justified both formal equality in European–non-European treaty relations, as well as the real substantive inequality of these international exchanges of rights and obligations. Building on the critical theoretical work of Evgeny Pashukanis (1891–1937), this article argues that a non-orthodox Marxist social theory of legal forms is best suited to explain the abstract, liberal universalism of nineteenth-century civilized international law and the contradictory forms of legal and jurisprudential discourse it made available and rendered normatively meaningful to international law practitioners. Through this Marxist theory, moreover, I shall relate said contradictory discourse to modern commodity exchange practices.

A visible theme in the history of international law: international or global?

It is widely recognised that international law is a Western construct. It is connected to the history, politics, and political domination of Western colonialism and imperialism which has created a form of order. As such, the paper will discuss the works of such scholars as Bluntschli, Lorimer, and Westlake, and will then trace the development of international law into the 20th century. Nineteenth-century international law was forged entirely in Europe; it was the expression of a shared European consciousness and culture, and was geographically located within a community of Europeans, which meant a community of Christians, and hence so called 'civilised' people. Despite this self-proclaimed superiority of European international law, the paper will also discuss the Asian contributions, the African efforts, and the Latin American developments of international law in a chronological statement through the centuries. In particular, the17th Century, 1815, 1918, and 1945 as international law changed in the post-World War II era when a larger community of nations developed Contemporary International Law.

A visible theme in the history of international law: international or global?

It is widely recognised that international law is a Western construct. It is connected to the history, politics, and political domination of Western colonialism and imperialism which has created a form of order. As such, the paper will discuss the works of such scholars as Bluntschli, Lorimer, and Westlake, and will then trace the development of international law into the 20th century. Nineteenth-century international law was forged entirely in Europe; it was the expression of a shared European consciousness and culture, and was geographically located within a community of Europeans, which meant a community of Christians, and hence so called ‘civilised’ people. Despite this self-proclaimed superiority of European international law, the paper will also discuss the Asian contributions, the African efforts, and the Latin American developments of international law in a chronological statement through the centuries. In particular, the17th Century, 1815, 1918, and 1945 as international law changed in the post-World War II era when a larger community of nations developed Contemporary International Law.

Georgios Streit on Crete: International Law, Greece, and the Ottoman Empire

In this article, I address the question of how jurisprudence functioned during the Cretan Question of 1895–1899. For this purpose, I analyze the works of Georgios Streit, one of the most famous Greek international lawyers at that time. First, Streit argued that Crete formed a state under the “thin suzerainty” of the Sublime Porte. By this logic, he effectively denied Ottoman sovereignty, although neither the Great Powers nor the Sublime Porte admitted his interpretation. Second, Streit criticized the Great Powers’ special status in international affairs, defending legal equality among what he considered to be civilized states instead. The equal status of the Powers and Greece would justify the latter’s intervention in Ottoman internal affairs. In conclusion, while Streit’s argument that Crete formed a state found support among international lawyers, his criticism of the Powers’ special status did not, a fact that highlights some of the characteristics of nineteenth-century international law.

The ‘Responsibility to Prevent’: A Remit for Intervention?

We are experiencing a transitional moment in international law. What once seemed to be an unstoppable evolution toward cosmopolitan constitutionalism now appears as a fragile and easily reversible trend, threatened both by the imperial disregard of international legality by recent U.S. administrations and by the disinterest or active opposition of a group of states that was classified as ‘uncivilized’ in nineteenth century international law. A powerful account of the differences between these states -- former colonies and satellites of great powers – and the predominantly western states whose publics take for granted human rights culture has captured the imagination of international elites. The contemporary account of the differences between western European-descended political communities and the ‘others’ focuses on democratic governance, human rights, and human security. One important element of this narrative is the emerging international legal concept of the ‘responsibility to protect,’ often promoted as a means of securing the preceding three goods. This paper considers the recommendations of the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) concerning a subsidiary element of the responsibility to protect termed the ‘responsibility to prevent.’ It argues that the prescriptions associated with the responsibility to prevent rest upon a set of prevailing assumptions about the root causes of threats to human security that are not tenable or not proven, and which both rely upon and reinforce the dualistic narrative of lawful and outlaw states that now dominates international public policy-making in western countries. Further, it shows how the model of legalization of humanitarian intervention proposed by ICISS is susceptible to cooptation by the democracy promotion project frequently associated with the liberal peace thesis. Finally, the paper recommends that only a stripped-down version of the ICISS recommendations, limited to the ‘responsibility to react,’ should be legalized, primarily because of the current absence of a reasonable degree of intercultural agreement on a substantive grounding for a muscular interpretation of a responsibility to prevent that includes root cause prevention.

Act of Justice: Lincoln's Emancipation Proclamation and the Law of War. By Burrus M. Carnahan. (Lexington: University Press of Kentucky, 2007. x, 202 pp. $40.00, ISBN 978-0-8131-2463-6.)

Though Burrus M. Carnahan's opening claim that the “legal context” of the Emancipation Proclamation “remains largely uncharted territory” might strike some Lincoln-weary readers as almost laughable, his thoughtful study of nineteenth-century attitudes regarding the law of war and the emancipation of slaves should win over all but the most hardened skeptics (p. 2). This impressive monograph may not become the definitive study of Abraham Lincoln's emancipation policy, but it will surely prove to be an indispensable supplement for serious students of the subject. What Carnahan has accomplished with greater clarity than previous scholars is to explain the application of nineteenth-century international law to Union emancipation policy. In a series of terse but effective chapters, Carnahan outlines global and domestic precedents for wartime emancipation and asset forfeiture while also detailing how the Union stumbled reluctantly toward applying the international law of war against the Confederacy. For President Lincoln, the problem was always one of legitimacy. He desperately wanted to avoid conferring belligerent status on the rebels, but was forced by circumstances to do so anyway. Yet it was the recognition of the rebellion as a real war that provided the essential political traction toward emancipation. “I think the constitution invests its commander-in-chief with the law of war in time of war,” Lincoln wrote in his famous letter to James C. Conkling of August 26, 1863, asking Northern voters pointedly that if slaves were indeed “property,” had there ever been “any question that by the law of war, property, both of enemies and friends, may be taken when needed” (p. 135)?

History of International Law and Western Civilization

This paper discusses the origins 19th-century international law through the works of such scholars as Bluntschli, Lorimer, and Westlake, and then traces out its development into the 20th century. Nineteenth-century international law was forged entirely in Europe: it was the expression of a shared European consciousness and culture, and was geographically located within the community of European peoples, which meant a community of Christian, and hence civilized, peoples. Despite this proclaimed superiority of European international law, and its underlying system of national sovereignties, it was recognized that noncivilized native peoples should be treated humanely as subjects entitled to the rights of man. This attitude strikes us as paternalistic today, considering that well into the second half of the 19th century the European system of laws was only one among a plurality of such systems across the world, prominent among which were the Sino-centric system in East Asia and the Islamo-centric system of the Siyar. It was only toward the end of the 19th century that an international law emerged as the expression of an international global society, when the Ottoman Empire, China, and Japan found themselves forced to enter the regional international society revolving around Europe. Still, these nations stood on an unequal footing, forming a system based on colonial relations of domination. This changed in the post-World War II period, when a larger community of nations developed that was not based on European dominance: it was now the consent of these nations that accounted for the existence of international law, which was being applied, or at least invoked, to assert various differences among them. This led to the extended world society we have today, made up of political systems profoundly different from one another because based on culture-specific concepts. So in order for a system to qualify as universal, it must now draw not only on Western but also on non-Western forms, legacies, and concepts. There are two areas of law that can illustrate how different civilizations might find such common ground, these being international private law and the international law of human rights. The paper's focus is on the latter issue of human rights, which are accordingly discussed on the basis of an intercivilizational approach.

TEACHER, SCHOLAR, COLLEAGUE, FRIEND

Click to increase image sizeClick to decrease image size Notes 1. See also Ann Curthoys's broader location of Dening's observations within her overview of developments in the discipline of history (1997 Curthoys , Ann . 1997 . Thinking about history . In Dealing with difference: Essays in gender, culture and history , edited by Patricia Grimshaw and Diane Kirkby . Melbourne : University of Melbourne . [Google Scholar], 211–23). 2. See Evans, Grimshaw, and Standish (2003 Evans, Julie, Patricia, Grimshaw and Ann, Standish. 2003. Caring for country: Yuwalaraay women and attachments to land on an Australian colonial frontier. Journal of Women's History, 14(4): 15–26. [Crossref] , [Google Scholar]): and Grimshaw and Evans (1996 Grimshaw, Patricia and Julie, Evans. 1996. Colonial women on intercultural frontiers: Rosa Campbell Praed, Mary Bundock and Katie Langloh Parker. Australian Historical Studies, 27(106): 79–95. [Taylor & Francis Online], [Web of Science ®] , [Google Scholar]). 3. See Grimshaw et al. (1994 Grimshaw, Patricia, Marilyn, Lake, Ann, McGarth and Marian, Quartly. 1994. Creating a nation, Melbourne: McPhee Gribble. [Google Scholar]); and Grimshaw (2002 Grimshaw Patricia . 2002 . Federation a turning point in Australian history . Australian Historical Studies 33 ( 118 ): 25 – 41 .[Taylor & Francis Online], [Web of Science ®] , [Google Scholar], 2005 Grimshaw Patricia . 2005 . Comparative perspectives on white and Indigenous women's political citizenship in Queensland: the 1905 Act to Amend the Elections Acts, 1885 to 1899 . Queensland Review 12 ( 2 ): 9 – 22 .[Crossref] , [Google Scholar]). 4. The original version was published as ‘Under Western Eyes: Feminist Scholarship and Colonial Discourses’ (1988 Mohanty, Chandra. 1988. Under Western eyes: Feminist scholarship and colonial discourses. Feminist Review, 30: 61–88. [Crossref], [Web of Science ®] , [Google Scholar]). 5. See also McLennan (1982 McLennan , Gregor . 1982 . E.P. Thompson and the discipline of historical context . In Making histories: Studies in history-writing and politics , edited by Richard Johnson , Gregor McLennan , Bill Schwarz and David Sutton . London : Hutchinson. [Google Scholar], chap. 3, esp. 99–117); and Samuel (1992 Samuel, Raphael. 1992. Reading the signs: II. Fact-grubbers and mind-readers. History Workshop Journal, 33: 220–51. [Crossref] , [Google Scholar]). 6. Like the later humanitarian discourses, natural law was nevertheless also susceptible to privileging Eurocentric values, including notions of ‘reason’ or ‘civilisation’, which effectively modified the ‘protection’ to be accorded to Indigenous peoples. See, among others, Anaya (2004 Anaya, S. James. 2004. Indigenous peoples in international law, Oxford: Oxford University Press. [Google Scholar]); Anghie (1999 Anghie, Antony. 1999. Finding the peripheries: Sovereignty and colonialism in nineteenth-century international law. Harvard International Law Journal, 10(1): 1–80. [Google Scholar]); Pagden (1995 Pagden, Anthony. 1995. Lords of all the world: Ideologies of empire in Spain, Britain and France, c.1500–c.1800, New Haven: Yale University Press. [Google Scholar]); and Williams (1990 Williams, Robert. 1990. The American Indian in Western legal thought, New York: Oxford University Press. [Google Scholar]). 7. On 29 June 2006. 8. On 28 November 2006, the General Assembly decided to “defer consideration and action on the United Nations Declaration on the rights of Indigenous Peoples to allow time for further consultations”. 9. The Declaration is not binding on states but sets international standards to which they should aspire and against which they will be judged.

History of International Law and Western Civilization

AbstractThis paper discusses the origins 19th-century international law through the works of such scholars as Bluntschli, Lorimer, and Westlake, and then traces out its development into the 20th century. Nineteenth-century international law was forged entirely in Europe: it was the expression of a European consciousness and culture, and was geographically located within the community of European peoples, which meant a community of Christian, and hence "civilized," peoples. It was only toward the end of the 19th century that an international law emerged as the expression of a "global society," when the Ottoman Empire, China, and Japan found themselves forced to enter the regional international society revolving around Europe. Still, these nations stood on an unequal footing, forming a system based on colonial relations of domination. This changed in the post–World War II period, when a larger community of nations developed that was not based on European dominance. This led to the extended world society we have today, made up of political systems profoundly different from one another because based on culture-specific concepts. So in order for a system to qualify as universal, it must now draw not only on Western but also on non-Western forms, legacies, and concepts.