Introduction

Randall Lesaffer and Inge Van Hulle

In 1996, at the inception of the ‘turn to history’ in international law, David Kennedy wrote that ‘when international lawyers now speak of the nineteenth century, they really mean its final decades, from roughly 1870 (…) to 1914’.¹ Although few centuries have benefited as much from the boom in scholarly interest in the history of international law as the nineteenth century, Kennedy’s implication that the four to five decades preceding the First World War generated most attention still rings true. This can easily been explained. Firstly, as Martti Koskenniemi powerfully argued in The Gentle Civilizer of Nations, the work that more than any other spurred the ‘turn to history’, that international law only emerged as an organised discipline in the 1860s and 1870s.² Secondly, both the postcolonial drive, which inspires many historians of international law, and aspirations to overcome the Euro-centrist approach and globalise the historiography of international law trim the lens on the role of international law in European imperialism. The heyday of the imperialist endeavour, the Age of Empire, coincides with the decades of the birth of modern international law.

In most recent years, an increasing number of scholarly studies started to proliferate into the earlier decades of the nineteenth century exploring subjects and questions outside the confines of the leading debate on international law and empire. This book collects ten studies, which offer a small sample of the ever-growing variety of themes and approaches that scholars from different fields – international law, legal and diplomatic history, history of political thought – bring to the historiography of international law during the nineteenth century.

In international history, the ‘nineteenth century’ is traditionally bracketed between 1815 – the end of the Congress Vienna after the demise of Napoleon (1769–1821) – and 1914 or 1919. The choice of 1815 is a manifestation of winner’s history. It implies that not the French Revolution, but the restoration that was wrought by the conservatives monarchies of Eastern Europe and by Great Britain, set the pace of a new epoch in the development of international order and law, at least in Europe.³

The studies collected in this volume stretch the nineteenth century backwards to include the period of the American and French Revolutions, taking the year of the Declaration of Independence of the United States as its starting point.⁴ Following in the footsteps of historians of international relations, the editors consider the contribution of the revolutionary period crucial to understanding the dynamics of international order and law in the nineteenth century.⁵ The Congress of Vienna attempted to suppress many of the disruptive ideas of the French Revolution and designed an order for Europe to restore the old, pre-revolutionary system as much as possible. Nevertheless, some of the major achievements of the revolutions – popular sovereignty and the secularisation of politics and law – re-emerged and were to have a profound impact on international relations and law during the nineteenth century, both within and without Europe.⁶

This book falls into three parts. Part 1, ‘International Law and Revolutions’, collects three studies that cover the revolutionary period or deal with the impact of revolution on international law. James Crawford analyses the legal status of the former Emperor Napoleon after his surrender into British hands in 1815. In Chapter 2, Camilla Boisen considers the anti-revolutionary writer Edmund Burke as a crucial linchpin between early modern and later positivist writers with relation to the theories of law enforcement and punishment in the international community of states. Viktorija Jakjimovska investigates great power reactions to the Greek Revolt and the formative role of this event for use of force law and the law of neutrality.

Part 2 turns to the more familiar theme of ‘law and empire’. Three of the four papers, however, discuss the decades before 1870. Andrew Fitzmaurice offers a fascinating survey of the British lawyer Travers Twiss’s long-term engagement with matters of international law in the context of empire and analyses his understanding of the ‘civilising mission’. Inge Van Hulle explores the role of human sacrifice as an argument for imperialist interventions, next to abolition of the slave trade, by the British in West Africa since the early nineteenth century. Raphaël Cahen exemplifies the Ben Ayad case of the 1850s involving France and Tunisia as an instance of the role of arbitration in imperialist policies. The final chapter in Part 2, by Stefan Kroll, offers a detailed analysis of the intricate workings of extraterritorial jurisdiction in the Shanghai International Settlement between 1863 and 1941.

The three studies in the Part 3, ‘The Rise of Modern International Law’, cover some less familiar aspects of the formation of modern international law as a self-standing discipline. Frederik Dhondt’s narration of the evolution of Belgium’s status of permanent neutrality between 1830 and 1870 offers an interesting case study of international law in action, as a fluid and flexible instrument of state policy where legal doctrine and diplomatic opportunism worked together to form and reform legal institutions according to the needs at hand. Ana Delic’s chapter explores the deeper roots of modern private international law, which rose together with – public – international law at the end of the nineteenth century, in both the civil and common law traditions, and the role of comparative law therein. Finally, Vincent Genin relates the vicissitudes of the Institut de Droit International in its early years, in particular against the backdrop of rising nationalism and the fall-out of the Franco-Prussian War.