{"id":14103,"date":"2021-06-02T13:00:16","date_gmt":"2021-06-02T11:00:16","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=14103"},"modified":"2021-06-03T08:37:36","modified_gmt":"2021-06-03T06:37:36","slug":"actions-speak-louder-than-words","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/actions-speak-louder-than-words\/","title":{"rendered":"Actions Speak Louder Than Words"},"content":{"rendered":"

Few legal disciplines seem to manifest such a consistently discouraging discrepancy between the law in the books and the law in action as the international laws regulating the use of force between states. While in educated circles virtually no one concurs with the supposedly \u2018realist\u2019 claim that international law as a whole bears little to no impact on international relations, it cannot be denied that the specific field of use of force law warrants scepticism concerning its effectiveness. The de jure<\/i> prohibition of the discretionary use of force, enshrined in the Charter of the United Nations, has coincided from the very beginning with a never-ending stream<\/u>\u00a0<\/u>of violations<\/u><\/a>, by authoritarian and democratic states alike.<\/p>\n

Exploring this tension, the latest volume released in The History and Theory of International Law <\/i>series sets out to study the historical\u00a0narratives of justifying war and\u00a0to make a case for public war justifications as useful sources for any legal-historical analysis on international order (p. 13). The thesis underpinning such efforts can be summarized easily enough: political actors \u2013 states, princes, naval captains \u2013 often put in the\u00a0effort to justify their resort to force, as neglecting to do so might damage \u2018his own standing in the existing communication community\u2019, meaning that such discourses inevitably \u2018interact with the international order\u2019 (p. 4). The volume\u2019s impressive list of 26 contributions thus contains a fair number that rely on analyses of texts justifying concrete uses of force \u2013 not just interstate war \u2013 compiled from the fifteenth century up until the present. This review focuses on contributions from Part III, on the international legal history of the nineteenth century, as well as the introduction and synthesis by the editors Lothar Brock and Hendrik Simon.<\/p>\n

In The Trap of Presentism?<\/strong><\/p>\n

According to the editors\u2019 introduction<\/u><\/a>, the volume generally adheres to a genealogical approach (pp. 3-7), the meta-objective \u2013 at least for some of the authors involved \u2013 being to add a degree of historical legitimacy to the present-day use of force regime.\u00a0At the same time, the two editors acknowledge that most of the legal-historical writing on the justification on uses of force thus far has concentrated on theoretical discourses, in the form of traditional doctrinal studies (p. 8). The editors explicitly recognize that such studies risk becoming \u2018a-historical\u2019 and need \u2018historical and political contextualization\u00a0(p. 9). This much appears as a measured approach, in line with Lauren B<\/u>e<\/u>nton<\/u><\/a>\u2019s or Ran<\/u>d<\/u>all Lesaffer<\/u><\/a>\u2019s advice to respect historical context and historical evidence, to avoid any too obvious \u2013 or, conversely, any unacknowledged \u2013 cherry-picking. As it stands, however, these warnings are not always heeded.<\/p>\n

With regards to the chapters on the nineteenth century, this has led to some bizarre statements. Isabell Hull\u2019s chapter, for instance, argues, in line with her books, that Imperial Germany, more than any other state, violated in 1914 the then-existing laws of nations. While there is clearly a degree of truth to that statement \u2013 the violation of Belgian neutrality comes to mind \u2013 its conclusion seems exaggerated, as Milo\u0161 Vec\u00a0already cautiously suggests in his chapter (p. 228). Hull bases much of her argument on the supposedly increasing legal containment of \u2018aggression\u2019 in the nineteenth century, which was \u2018strongly suggested by state practice\u2019, as found in the \u2018rules\u2019 of the Concert of Europe (p. 185).\u00a0Hull\u2019s indictment of Imperial Germany was largely achieved by defining aggression out of existence through a narrow, formalist definition of what constituted aggressive behaviour, bearing minimal resemblance to any common understandings, and largely drawn from a one-sidedly optimistic understanding of the Vienna settlement.\u00a0It can hence be read that \u2018no wars of aggression [were fought] on European soil from 1815 to 1914\u2019; in fact, \u2018there were few wars of any kind\u2019 (p. 185).<\/p>\n

According to this very bold claim, then,\u00a0the following contemporary conflicts should no longer be seen as \u2018aggressive\u2019 wars: the two wars for Schleswig-Holstein, the Italian wars from the 1840s to the 1860s, the Austro-Prussian war, the Russo-Turkish war of the 1870s, the Greek war of independence, the Crimean war, the Franco-German war, or any of the interventionist crackdowns of revolution\u00a0and civil war in Spain, Hungary, Poland, and elsewhere. In addition to this, there is a whole string of events that might fairly be characterized as aggressive, without\u00a0having led to war: the Rhine crisis of 1840 or the Luxemburg crisis of 1867, Austria\u2019s illegal annexation of Cracow of 1846, the bullying British \u2018Sulphur war\u2019 of 1840 against the Kingdom of the Two Sicilies, France\u2019s occupation of Ancona of 1832, violating the sovereignty of the Papal States, or France\u2019s\u00a0blockade of Switzerland in the 1830s. Contemporary journalists\u00a0could wr<\/u>ite<\/u><\/a>, coolly, that\u00a0\u2018war remained the only final arbiter between sovereign states\u2019.<\/p>\n

Other scholarship paints a more pessimistic picture, such as Mirosl<\/u>a<\/u>v \u0160ediv\u00fd<\/u><\/a>.<\/u> The argument would thus have been more convincing, had it also addressed the many, many instances in which \u2018state practice\u2019 looked like it cared little about Congress or Concert \u2018rules\u2019 whenever it clashed with state interests, of both great and minor powers alike. Particularly aggravating seems Hull\u2019s exception for warfare when it was \u2018tolerated\u2019 for wars of unification, based on the principle of self-determination. This \u2018exception\u2019 \u2013 based on a naturalist<\/u>\u00a0<\/u>principle<\/u><\/a> in contradiction with Vienna\u2019s positive principle of dynastic legitimacy \u2013 did not seem to have hindered most of the Concert \u2018rules\u2019 to have become widely accepted in state practice (p. 186). Yet it might equally be argued that Europe\u2019s great powers merely accepted those \u2018exceptions\u2019 as deeply resented faits accomplis,<\/i> which strongly contributed to the decline and fall of the Concert system, ripped apart long before 1914 in Europe\u2019s vortex of nationalism, republicanism, liberalism, socialism, and imperial rivalries. The exceptions have swallowed the rule.<\/p>\n

The Myth of The Myth<\/strong><\/p>\n

Closely aligned with Hull\u2019s work is Hendrik Simon\u2019s thesis on the \u2018myth of liberum ius ad bellum<\/i>\u2019. A recent string of <\/u>a<\/u>rticles<\/u><\/a>\u00a0by Simon in prominent legal journals claims to have debunked the \u2018myth\u2019 that states in the nineteenth century were bound by few legal restrictions in the so-called ius ad bellum.<\/i> In doing so, Simon boasts of having refuted \u2018the overwhelming majority of recent literature\u2019, including influential authors such as Martti Koskenniemi, Stephen Neff, and Wilhelm Grewe (p. 147). Not much can be held against this argument to the extent it deals with doctrine and theoretical discourse, as intellectual history. There can be little doubt that many within Western society during the nineteenth century felt a profound moral resentment to a more or less free right to go to war, a viewpoint that I also endorse in my own research on the internation<\/u>a<\/u>l peace movement<\/u><\/a>. That much is also in line with the existing literature on \u2018just cause\u2019 in early modernity, or with similar research by Agatha Verdebout. However, Simon \u2013 just like Hull and Verdeb<\/u>o<\/u>ut before him<\/u><\/a> \u2013 overstates his final conclusion, when he seeks to interpret state practice. Rather than reconstructing a lively intellectual debate in\u00a0society, Simon wants to prove that there was real \u2018normative progress\u2019 \u2013 supposing interstate consensus \u2013 from which the \u2018outright prohibition of the unilateral use of force slowly emerged\u2019 (pp. 165-166). Simon calls this development the \u2018birth\u2019 of the modern war discourse (pp. 165-166).<\/p>\n

The elaborate argument against this \u2018myth\u2019 starts in the French Revolutionary era and proceeds via the European Concert system to the Hague Peace Conferences of 1899 and 1907, interspersed with treatments of doctrinal authors. Much can be brought against the belief that any of these events and actors were sufficiently representative of contemporary international law \u2013 the interpretation of the European Concert System alone challengeable on the same grounds as above. However, the strongest and, to the author, most explicit example of \u2018state practice\u2019, analyses France and Prussia\u2019s respective war declarations in 1870. Surprisingly enough, both sides claimed a just cause. From official statements such as these, the conclusion is said to be proven that \u2018wars waged for the extension of a state\u2019s position in the international system were seen as unjustified. State practice coincided almost ideally with the doctrine of bellum iustum\u2019<\/i> (p. 159).<\/p>\n

Bold claims such as these illustrate the pitfalls of neglecting contextualism for lawyers. After all, waging wars for the aggrandizement of the state\u00a0was the hallmark of Otto von Bismarck\u2019s brutal foreign policy of Blut und Eisen,<\/i> which previously saw him engaging with the Danes and the Austrians in his violent bid for Prussian hegemony. It is a well-known historical fact that the French war declaration had been deliberately provoked by the Iron Chancellor \u2013 via a telegram consciously redacted to be more insulting to French pride \u2013 who correctly calculated that he would be able to count on the aid of the southern German states, and the non-intervention of the other great powers. Furthermore, the bulk of the war declarations in this century, when given, while certainly including some formulaic legal pleas, ce<\/u>n<\/u>tred around national interests<\/u><\/a>, barely masking naked self-interest under such euphemisms as \u2018honour\u2019 and \u2018dignity\u2019, or even \u2018the glory of the state\u2019. It is also usually impossible to view declarations from a strictly bilateral perspective: any claims inevitably touched upon the broader balance of <\/u>p<\/u>ower<\/u><\/a>. Other states and the larger public could still think for themselves, and any propaganda victory for the issuing state could only be short-term. None of these reservations are refuted in the chapter. The war declarations themselves sufficed as evidence of \u2018political practice\u2019, although state practice was vastly more complex than a couple of propagandistic declarations. For reasons such as this, it seems unlikely that Simon\u2019s thesis will be able to upend the established view, to the extent it wants to describe actual interstate normativity, rather than \u2018just\u2019 be an extensive and admirably well-done intellectual history \u2013 which is to be emphasized again.<\/p>\n

Too Much Theory, Too Little Practice<\/strong><\/p>\n

One cannot simply pick up a few manifestos, along with a few other events, involving only a few states, and call it a day. Much more empirical evidence is needed before it can be reasonably held that any doctrinal book, or any official statement, corresponded to an actual, living, norm of generally accepted customary law in the international community. Importantly, any author seeking to tilt a long-standing conviction should make a conscious effort to convincingly explain how any deviating practice can fit into the desired new\u00a0narrative, to disarm in advance any\u00a0predictable \u2013 and inevitable \u2013 suspicions of selective readings of history and practice.<\/p>\n

Much of this neglect may be found in the introduction, which reveals the limits of any discourse theory thus construed: the editors opted not to take into account an actor\u2019s motives<\/i> (p. 11). To contextualist historians, that is a huge handicap. From a lawyer\u2019s perspective, it is akin to deliberately neglecting the legislator\u2019s will, since in international law\u2019s horizontal order, states are not only legal subjects but also law-makers. This returns us to the reservations expressed by so many with regards to use of force law. Koskenniemi\u2019s thesis holds that any international legal argument oscillates between concreteness and normativity, between \u2018apology\u2019 and \u2018utopia\u2019. Lawyers who stick too close to state practice are seen as apologists of power politics, whereas idealistic lawyers are usually accused of interpreting the law as it should be, rather than how states practice it, relegating them to the foggy realm of utopian thinkers. Ultimately, any substantive conclusion remains elusive, and the lawyer essentially ends up articulating a political position through her or his legal argumentation.<\/p>\n

Venturing on thinner ice, the position might be forwarded that some scholars investigating use of force law\u00a0tend to advance\u00a0\u2018utopian\u2019, largely acontextual, interpretations of international law, derived from questionable or limited interpretations of state practice, out of a \u2013 legitimate \u2013 concern to defend the modern-day legalist use of force regime, which is felt to be in danger. Unfortunately, this strategy runs the risk of straying too far from state practice. In this regard, the volume is aware the methodological criticism developed by authors like\u00a0Clive <\/u>P<\/u>arry<\/u><\/a> or Anth<\/u>o<\/u>ny Carty<\/u><\/a>\u00a0that opinio iuris<\/i> is usually unknowable (pp. 8-9). However, these red flags\u00a0are not incorporated enough, due to the belief that norms can be derived from public discourse alone. Perhaps influenced by the Nicaragu<\/i>a <\/i>case\u2019s\u00a0<\/i>\u2018explicit objector\u2019\u00a0rule \u2013\u00a0i.e.\u00a0deviations strengthen the norm, if justified by invokingexceptions to that norm \u2013 several authors seem to assume that more weight should be given to a state\u2019s purported opinio iuris,<\/i>\u00a0than to what it actually did<\/i>. As contended by critics like Michael <\/u>G<\/u>lennon<\/u><\/a>, however, this kind of thinking is circular and arbitrary. A state may indeed agree juridically with a rule that it violates, but it is likely more reasonable to conclude that a state disagrees<\/i> with a norm it does not respect through its acts. Causation between opinio iuris<\/i>\u00a0and practice needs to be proven, not assumed. Modern practitioners often need to divine a state\u2019s opinio iuris<\/i>,<\/i> out of pragmatism, since\u00a0states keep their diplomatic archives under lock and key for many years.\u00a0Legal historians, however, can\u00a0and should look at the\u00a0fuller picture, including\u00a0internal\u00a0memos, cabinet meeting minutes, diplomatic correspondence, and\u00a0wider contexts,\u00a0not seldom leading to\u00a0more pessimistic, but arguably also more accurate conclusions as to the state of the law.<\/p>\n

To the present volume\u2019s credit: it does accept the existence of \u2018multi-normativity\u2019, described as \u2018extra-legal spheres\u2019, but this concept is not developed further beyond the rather innocuous premise that events usually have myriad causes, legal as well as extra-legal (p. 7). It should not be controversial to say that legal norms are typically only one aspect that goes into a state\u2019s calculus of whether or not to act a certain way, besides other aspects like \u2013 in Glennon<\/u>\u2019<\/u>s words<\/u><\/a> \u2013 \u2018the quality of a state\u2019s leadership, the power of domestic constituencies, the structure of the international system, the state\u2019s relative military and economic power, its \u201csoft power\u201d, and myriad other factors\u2019.\u00a0This is also taken for granted\u00a0by academic historians.<\/p>\n

Idealism Need Not Be Sentimentalism<\/strong><\/p>\n

None of what has been written above\u00a0should be construed as \u2018realist\u2019 cynicism.\u00a0Rather, the reflexions within this review merelyaim to underline the necessity of evidence-based empirical studies, aware of methodological limitations, and hesitant of too radical conclusions based on\u00a0limited data. Restrained chapters by Milo\u0161\u00a0Vec, Aimee Genell, Mustafa Aksakal, and Lauren Benton do just that. Lauren Benton continues in her vein of \u2018vernacular\u2019 histories, using British naval captains\u2019 logbooks and letters to the admiralty to argue that a\u00a0perpetual right to use force \u2018in small bursts\u2019 existed in territories of so-called incomplete sovereignty\u00a0(pp. 179-180). The chapters of Aimee Genell and Mustafa Aksakal, along with that of Milo\u0161 Vec, focusing on the First World War,\u00a0both acknowledge that\u00a0international law can\u00a0\u2018go dark\u2019. This can happen because of great power predations, in the case of the Ottoman Empire (p. 218), or because of the duress of world war, as evidenced by\u00a0the near-complete disregard of legal prohibitions\u00a0on the use of poison gases between 1915 and 1918 (p. 237). More generally, these authors admit the\u00a0fact that, while an international community without law is indeed unthinkable, the proper functioning of international law depends on underlying\u00a0conditions that determine whether states can agree on certain\u00a0norms.\u00a0Many of these\u00a0background conditions are strongly political in nature, yet\u00a0not\u00a0enough research has been done, either for\u00a0today or for the past, into the reasons why states choose to create or expand international law, or, conversely, choose to ignore\u00a0it. Even powerful states dislike international anarchy\u2013\u00a0contrary to some claims by\u00a0\u2018realists\u2019. However, international lawyers still shy away too much from the\u00a0often inseparable link between power <\/u>and<\/u> law<\/u><\/a>, needed to understand both.<\/p>\n

Justificatory discourses, in the past, but also in the present, can hence only provide partial<\/i> indication of any opinio iuris,<\/i>necessary not only to establish a customary law, but also to verify whether an actor truly believed to be acting according to law, or if this actor simply paid lip service to legal-discursive conventionalities to mask contrary politics. The words of the powerful need to be taken with a grain of salt. Failing to do so will likely land one firmly in some theoretical \u2018utopia\u2019, and be effectively counter-productive to the ideal of a just world in which the dogs of war are kept on a firm legal leash. Idealism need not be sentimentalism.<\/p>\n","protected":false},"excerpt":{"rendered":"

Few legal disciplines seem to manifest such a consistently discouraging discrepancy between the law in the books and the law in action as the international laws regulating the use of force between states. While in educated circles virtually no one concurs with the supposedly \u2018realist\u2019 claim that international law as a whole bears little to […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[6804],"article-categories":[5080,3572],"doi":[],"class_list":["post-14103","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-wouter-de-rycke","article-categories-book-review","article-categories-symposium"],"acf":{"subline":"Approaches to Justifying War Justifications"},"meta_box":{"doi":"10.17176\/20210603-003512-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/14103","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=14103"}],"version-history":[{"count":5,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/14103\/revisions"}],"predecessor-version":[{"id":14140,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/14103\/revisions\/14140"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=14103"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=14103"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=14103"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=14103"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=14103"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=14103"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}