Hammarskjöld at The Hague

The chapter probes into the segment of small-state representatives at the Second Hague Peace Conference in 1907 by focusing on the views and activities of one of the more vocal and influential among the delegates, Hjalmar Hammarskjöld (1862–1953). The analysis of Hammarskjöld’s role, presence, and activities at The Hague serves as a prism of international legal diplomacy and politics and the distinct contribution the northern neutrals made. On that basis, a range of new questions can be asked and suppositions tested—about the function of international law for less powerful states; about the self-conception, international legal tradition, and spectrum of expectations of small-state representatives at the Peace Conferences; about their diplomatic and political ways and means to exercise influence and mould the proceedings; and about the effect and persistence of their experiences at The Hague in their future careers and conduct.

Legal Practitioners

In the wake of the efforts to fight the transatlantic slave trade during the nineteenth century the first system of international jurisdiction emerged, the so-called Mixed Commissions for the Abolition of the Slave Trade. These courts sought to guarantee the conviction of captured slave ships by a uniform set of practices, functions, and procedures for all of the commissions established throughout the Atlantic area. However, the Mixed Commissions were far from being a body of frictionless international cooperation. Instead, they were a fiercely contested place, where each member state sought to enforce its competing national interests concerning abolition. The aim of this chapter is to focus on this rather ambiguous character of the Mixed Commissions and its members. It focuses on the ambiguous roles of the commission members as legal actors, diplomats, and advocates in order to present the first system of international courts as a fiercely contested body of early international cooperation.

Legal Advice, the Foreign Office, and Britain’s Neutrality Policy, 1870–1914

As the predominant sea power in the nineteenth century, Britain shaped the understanding of neutrality at sea prior to 1914 like no other nation. This chapter examines how Britain formulated its neutrality policy in the aftermath of the American Civil War, and how this policy was implemented in the Franco-Prussian War of 1870–1871, the Sino-French War of 1884–1885, and the Russo-Japanese War of 1904–1905. Each conflict posed new legal challenges. It focuses on how the British government received legal advice, and how the government administration of foreign affairs changed as a result of the growing importance of legal advice in international politics. While the Foreign Office was responsible for the implementation of the neutrality policy, this chapter highlights the importance of the Law Officers of the Crown who, as the principal legal advisers of the British government, shaped state practice and, more generally, the understanding of neutrality at sea.

The First R2P

This chapter explores the role of international lawyers as enablers of military intervention. US lawyers frequently justified US intervention on behalf of private interests in Latin America. They did not ignore the law to do so. While agreeing with Latin Americans that international law frowned on violent debt collection, they contended that it permitted intervention to ‘protect’ citizens and property. When combined with discourses of civilization and barbarism, lawyers found it easy to justify interstate violence even on behalf of unscrupulous claimants: too easy, in fact. As a result, such interventions often lacked public legitimacy and required deft diplomacy to limit political blowback. Just as contemporary debates over the ‘Responsibility to Protect’ have offered legal justification while stirring political controversies, so too the assertion of a ‘Right to Protect’ citizens and investments a century ago demonstrates the importance of legal expertise in shaping the contours of interstate violence.

Changing Hats

The war crimes tribunals at Nuremberg are well known as key arenas of judicial retribution after the Second World War and for institutionalizing international criminal justice. Their personnel, the ‘Nuremberg lawyers’, have been credited with advancing the cause of international law and (re)building the post-war global order. Critics, though, have chastised what they conceive of as the mistaken recourse to legal ideas and legal language as an either naïve or outright hypocritical, but in any case inadequate way of addressing the challenges of power politics in the Cold War era and beyond. Common to both sides are sweeping, often implicit notions of who the ‘Nuremberg lawyers’ actually were, what drove them, and how they interacted. By categorizing academic training and practical experience, national and biographical contexts, normative inclinations, individual ambitions, and practical functions, this chapter offers a classification of Nuremberg’s lawyers which provides a helpful taxonomic tool for international tribunals more generally.

Legal Legwork

During the Second World War, London hosted eight European governments in exile as well as the French National Committee. For these politicians and diplomats their recognition as the legitimate and legal representatives of their respective countries was of supreme importance, yet no foregone conclusion. Such claims needed to be rooted in international law and supported by titles and documents, especially in those cases where rivalling bodies claimed the same status. Legal experts and jurists were indispensable to formulate these arguments, and the interplay of official channels, informal diplomatic avenues, and academic exchange was crucial. Scholarly expertise in particular proved a diplomatic resource. In the course of this protracted process émigré lawyers became an influential force in defining and preserving statehood, even in the absence of significant political or military power.

Shaping a New Profession

Not until the nineteenth century were the Japanese forced to confront and engage with the European conception of international law. In East Asia a Sinocentric regional order had governed their worldview for over a thousand years, and during the early modern period the Tokugawa dynasty then modified this outlook to place Japan in the centre of its own framework of international relations. Under the Tokugawa judicial system, moreover, the concept of a lawyer, international or otherwise, was practically unknown. It was the reluctant opening of treaty ports in 1859 that paved the way for Japan’s reception of international law. This chapter charts the shift from the early Japanese exploration of the outside world after centuries of self-imposed isolation, to the training of Japan’s first generation of international lawyers as the Meiji state embarked on reclaiming sovereign rights lost through the imposition of the treaty port regime.

Introduction

Lawyers make politics, and international lawyers make international politics. Yet despite a few prominent judges or academic stars, the roles which jurists play as practitioners of international politics are often underappreciated or their juristic personas take a backseat behind those of the politician and the diplomat. In contrast, this volume sheds light on how lawyers in the past 300 years have made sense of, engaged in, and shaped international politics. The introduction sets out the main themes and aims of this endeavour, exploring how historiography, international law, and legal studies have dealt with jurists and lawyers so far; conceptualizing the practices and practitioners of international politics; and presenting an overview of the case studies assembled in the volume.

Agents of Constitutionalism

Why did European law experience a constitutional breakthrough in 1963–1964 when the political and institutional development of European integration had moved in the direction of an increasingly intergovernmental approach based on international treaties in the late 1950s? By employing a biographical approach to five key agents of European constitutionalism during the founding years of European law, the chapter argues that this handful of jurists from different countries was able to secure a constitutional breakthrough in the interpretation of European law despite the political trend. The key motivation shared by them all was grounded in the recent European past of the interwar crisis and the Second World War, which led them to support federalism as the best way to organize European cooperation. The five held very different positions both in the European institutions and at member state level, but managed to influence the development of European law through participation in the negotiations of the founding treaties, constitutional reforms at the national level and the agency of the European Commission and the European Court of Justice.

Fluid Boundaries in the Divisible College

In the 1950s, professional bodies such as the International Law Association (ILA) sought to formulate universal legal rules amidst the complexities of decolonization, technological utopias, and the global Cold War. This chapter analyses the ILA’s involvement in a water rights dispute between India and Pakistan. Discussions within the ‘divisible college’ of the ILA shaped the way in which these post-colonial nations used both domestic and imported legal expertise to define sovereignty autonomously and, by extension, to destabilize the consensus within the international legal community on the extent to which international law could be regarded as settled. Four jurists of the ILA Rivers Committee feature in this investigation: S. M. Sikri, a future Chief Justice of India; Manzur Qadir, Senior Advocate and future Foreign minister of Pakistan; and two Western advisers to the governments of India and Pakistan respectively, the German scholar Friedrich Berber and the US government official John Laylin.