The Justification of War and International Order: From Past to Present

519 Pages·2021·5.744 MB·English

by  Lothar Brock (editor), Hendrik Simon (editor)

The Justification of War
and International Order
THE HISTORY AND THEORY OF
INTERNATIONAL LAW
General Editors
NEHAL BHUTA
Chair in International Law, University of Edinburgh
ANTHONY PAGDEN
Distinguished Professor, University of California Los Angeles
BENJAMIN STRAUMANN
ERC Professor of History, University of Zurich
In the past few decades the understanding of the relationship between nations
has undergone a radical transformation. The role of the traditional nation-
state is diminishing, along with many of the traditional vocabularies which
were once used to describe what has been called, ever since Jeremy Bentham
coined the phrase in 1780, ‘international law’. The older boundaries between
states are growing ever more fluid, new conceptions and new languages have
emerged which are slowly coming to replace the image of a world of sovereign
independent nation- states which has dominated the study of international
relations since the early nineteenth century. This redefinition of the international
arena demands a new understanding of classical and contemporary questions
in international and legal theory. It is the editors’ conviction that the best way
to achieve this is by bridging the traditional divide between international legal
theory, intellectual history, and legal and political history. The aim of the series,
therefore, is to provide a forum for historical studies, from classical antiquity to
the twenty- first century, that are theoretically informed and for philosophical
work that is historically conscious, in the hope that a new vision of the rapidly
evolving international world, its past and its possible future, may emerge.
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A Contribution to the Theory of Public and International Law
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Law and the Political Economy of Hunger
Anna Chadwick
The Justification of War
and International Order
From Past to Present
Edited by
LOTHAR BROCK AND HENDRIK SIMON
1
3
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Preface by the Editors
The idea for this book was born in the summer of 2017. But even before, the obser-
vation that the use of force throughout history needs justification and that the justi-
fication of war interacts with the construction of international order had become a
recurring and increasingly central topic in our research projects at the Peace Research
Institute Frankfurt and in our seminars taught at Frankfurt’s Goethe-U niversity.
Lothar encountered the justification of war as a theoretical endeavour and a polit-
ical practice in the context of his engagement with the modern project of achieving
peace through law, which in our view still is to be defended, by being critically exam-
ined, against the ‘hard facts’ of international anarchy which Realists of all walks of ac-
ademic life and life in general like to refer to. At the same time, Hendrik was engaged
in writing well-p laced articles and a historic study on the ‘myth of the “free right to go
to war” ’ (which, of course, sometimes suffered under the workload of producing the
present volume). Our discussions led to the idea of engaging with the role of norms in
political discourses on the legitimation of violence under a broader geographical, his-
torical, and disciplinary perspective—f rom past(s) to present(s), as the book’s subtitle
indicates. For it seemed conspicuous that war has never been and probably will never
be waged without recourse to norms, as we and our authors emphasize in this volume.
So the contributions of the book follow, in different ways, the assumption that the his-
tory of war is also a history of its justification and interacts with what is recognized as
international order.
With regard to the relevant literature, we soon realized that, although there is an
intense philosophical debate on the justification of war, in particular in connection
with the ‘just war’ tradition, empirical research on the nexus of war justifications and
international order in theory and political practice is still rare to date. In this respect,
the present volume brings together different approaches and promotes new dia-
logues across the disciplinary boundaries of the History and Theory of International
Law, International Relations, International Political History, Political Theory, and
Sociology. Of course, we make no claim to present the final or second to final word in
this matter. Hopefully, however, the present volume contributes to the series editors’
project of ‘bridging the traditional divide between international legal theory, intellec-
tual history, and legal and political history’.
The fact that our project could be implemented is primarily, of course, thanks to
our authors, whom we are deeply indebted to for their inspiring contributions which
soon turned our project into a project of all participating. We owe them great thanks.
In addition, a number of individuals have contributed to the genesis of the book, to
whom we would like to express our sincere thanks: first of all, Beate Jahn, Anuschka
Tischer, and particularly Miloš Vec, who all enthusiastically supported the idea for
this book from the very beginning and who helped us with advice and support.
Anna Geis, Thilo Marauhn, Gert Krell, and Benno Teschke have critically read the
vi Preface by the Editors
introduction and made important suggestions. The same applies to the anonymous
peer reviewers, who, in an exemplary manner, provided a stimulating critique of what
we were about to do. The project was presented for the first time at a small panel at the
EISA Conference 2018 in Prague, attended by Mustafa Aksakal (who came all the way
from Washington!), Chris Brown, Beate Jahn, and Benno Teschke. We are grateful for
their encouragement in pursuing the project.
We also would like to thank the Peace Research Institute Frankfurt for providing
a stimulating environment and the necessary working space. Special thanks go to
Cornelia Hess, who helped us with formatting some of the chapters. Last not least we
thank the OUP team, especially Merel Alstein, Jordan Burke, and Jack McNichol, and
the Newgen team for their extremely helpful way in which they mentored the publi-
cation. The willingness of Nehal Bhuta, Anthony Pagden, and Benjamin Straumann
to suggest the project for inclusion in the ‘History and Theory of International Law’
Series of Oxford University Press, was, of course, decisive to get the project going in
the present context.
Finally, a very special thanks goes to Ingrid Krüger from Tübingen, who provided
the cover image. The original of the aquarelle is hanging in Lothar’s office at the Peace
Research Institute Frankfurt. What it tells us as cover of this volume is, of course, in
the eye of the beholder. We ourselves felt that, in analogy to a famous book on the his-
tory and theory of international law, it may be seen as offering an image of how the
apologetic and the utopian side of (international) law coalesce.
Frankfurt, June 2020
Lothar Brock and Hendrik Simon
Series Editors’ Preface
The present volume seeks to examine both the historical emergence of the modern
international order and its normative foundation. This foundation is excavated via the
normative justifications that have been put forward by the historical actors partaking
in international conflicts. Lothar Brock and Hendrik Simon, profitably avoiding the
pitfalls of scholarly parochialism, have gathered a global cast of contributors. The
chapters cover a very wide range of historical periods and geographical locations in-
deed and range from the early modern period to the current international legal order,
discussing a great number of legal and normative arguments and practices from places
in Europe, indigenous Spanish America, India, the Ottoman Empire, to China and
Russia. All this historical depth and geographical and scholarly range is disciplined
by a definitive focus that lies throughout on the justification of war and on the crucial
interaction between normative justification and conflict on the ground, between legal
scholarship and political practice.
This approach successfully overturns unexamined assumptions that have taken a
hold in scholarship and yields often counterintuitive results. It turns out that far from
lending support to a realist view of international order the investigation of the histor-
ical record of political practice often shows a surprisingly strong hold of normative
justifications on the imagination and argumentation of political actors, even in con-
texts such as the nineteenth-c entury European ‘Concert’ of Great Powers. Depending
on historical and geographical context, norms could at times and under certain con-
ditions exercise even more exogenous pull in political practice than in legal theory.
Norms and the conceptual materials they are built from, that is, managed to have, as a
matter of historical fact, causal effects on political practice and social reality.
Overall, we can see that the fine- grained analysis of both normative justification
and political practice over the long historical term leads to many necessary revisions
of longstanding orthodoxies. These revisions cannot be had cheaply, but must be
shown in the painstaking way that is under display in the well- integrated scholarship
assembled here. The vision emerging from this rich volume cannot be captured in
a few paragraphs, but if pressed to name the most salient upshot, one might point
to the striking historical datum that the need for justification is never really absent
throughout the regions and time periods under scrutiny and that this justificatory
need shows ‘on the ground’ and in practice no less than it does in learned treatises.
29 April 2020
Benjamin Straumann
List of Contributors
Mustafa Aksakal is Associate Professor of History and Nesuhi Ertegün Chair of Modern
Turkish Studies at Georgetown University, Washington, DC, where he teaches Ottoman
and Middle Eastern History. He is the author of The Ottoman Road to War in 1914 (2006);
‘Holy War Made in Germany? Ottoman Origins of the 1914 Jihad’, War in History (2011);
and ‘The Ottoman Empire’, in Robert Gerwarth and Erez Manela (eds), Empires at War.
1911– 1923 (2014).
Mikhail Antonov is Professor of Law associated with the Law Faculty at the National
Research University ‘Higher School of Economics’ (Saint Petersburg) and practising
member of the Saint Petersburg Bar Association. Among his recent publications are
‘History of Russian Law and Its Interpretations’, Review of Central and East European Law
(2020); ‘Religion, Sexual Minorities, and the Rule of Law in Russia’, Journal of Law, Religion
and State (2019); ‘Legal Realism in Soviet and Russian Jurisprudence’, Review of Central
and East European Law (2018); ‘Conservative Philosophy and Doctrine of Sovereignty: A
Necessary Connection?’, Archiv für Rechts- und Sozialphilosophie (2017).
Beate Jahn is Professor of International Relations at the University of Sussex, UK. Her
publications include The Cultural Construction of International Relations (2000); Classical
Theory in International Relations (2006); Liberal Internationalism (2013); ‘Kant, Mill, and
Illiberal Legacies in International Affairs’, International Organization (2005); ‘Theorizing
the Political Relevance of IR Theory’, International Studies Quarterly (2017); and ‘Liberal
Internationalism:  Historical Trajectory and Current Prospects’, International Affairs
(2018).
Arnulf Becker Lorca is a researcher at the Pontificia Universidad Católica de Valparaíso,
Henry Steiner Visiting Professor at Harvard Law School, and a Lecturer at Brandeis
University. His book Mestizo International Law: A Global Intellectual History, 1842– 1933
(2015) was the winner of the 2016 Book Prize of the European Society of International Law.
Lauren Benton is Barton M. Biggs Professor of History at Yale University. Her publications
include, with Lisa Ford, Rage for Order: The British Empire and the Origins of International
Law, 1800– 1850 (2016); A Search for Sovereignty: Law and Geography in European Empires,
1400– 1900 (2010); and Law and Colonial Cultures: Legal Regimes in World History, 1400–
1900 (2002), which received the World History Association’s Bentley Book Prize and the
J. Willard Hurst Book Prize of the Law and Society Association.
Lothar Brock is Senior Professor of Political Science at Goethe- University Frankfurt and
at the Peace Research Institute Frankfurt. His English publications on the topic of this
book include ‘The Use of Force in the Post-C old War Era. From Collective Action back to
Pre- Charter Self Defense?’, in Michael Bothe, Mary Ellen O’Connell, and Natalino Ronzitti
xiv List of Contributors
(eds), Redefining Sovereignty. The Use of Force After the Cold War (2005); Democratic Wars.
Looking at the Dark Side of Democratic Peace (2006, co- ed. with Anna Geis and Harald
Müller); and ‘Between Sovereign Judgement and the International Rule of Law’, in Anthony
Lang, Jr and Mathias Albert (eds), The Politics of International Political Theory (2019).
Chris Brown is Emeritus Professor of International Relations at the LSE and the author of
International Society, Global Politics (2015); Practical Judgement in International Political
Theory (2010); Sovereignty, Rights and Justice (2002); International Relations Theory: New
Normative Approaches (1992). He is co- editor (with Terry Nardin and N.J. Rengger) of
International Relations in Political Thought (2002) and (with Robyn Eckersley) of The
Oxford Handbook of International Political Theory (2018). His textbook Understanding
International Relations (2019) is now in its fifth edition.
Manjiao Chi is Professor and Founding Director at the Center for International Economic
Law and Policy (CIELP), Law School, University of International Business and Economics
(UIBE), China. His research fields cover international law, especially international
trade and investment policy and law, dispute settlement, and global governance. He is
a founding editor-i n- chief of Asian Yearbook of International Economic Law, and au-
thor of Integrating Sustainable Development in International Investment Law: Normative
Incompatibility, System Integration and Governance Implications (2018).
B.S. Chimni is Professor of International Law at School of International Studies, Jawaharlal
Nehru University. Among his publications are ‘Third World Approaches to International
Law & Individual Responsibility in Internal Conflict’, 2 Chinese Journal of International
Law (2003, with Antony Anghie); and International Law and World Order. A Critique of
Contemporary Approaches (2nd ed., 2017).
Christopher Daase is Professor of International Organizations at Goethe-U niversity
Frankfurt and Deputy Director of the Peace Research Institute Frankfurt. Among his pub-
lications are Transformations of Security Studies. Dialogues, Diversity and Discipline (2015,
with Gabi Schlag und Julian Junk); Clausewitz on Small War (2015, with James Davis); and
Recognition in International Relations. Rethinking a Political Concept in a Global Context
(2015, with Caroline Fehl, Anna Geis, and Georgios Kolliarakis).
Nicole Deitelhoff is Professor of International Relations and Theories of International
Order at Goethe- University Frankfurt and Director of the Peace Research Institute
Frankfurt. Among her publications are Internationalization and the State. Sovereignty as
the External Side of Modern Statehood (with Michael Zürn), in Stephan Leibfried et al.
(eds), The Oxford Handbook of Transformations of the State (2015) and ‘The Discursive
Process of Legalization. Charting Islands of Persuasion in the ICC Case’, International
Organization (2009).
Oliver Eberl is Lecturer in Political Theory and the History of Ideas at Leibniz University
Hannover. Among his publications are ‘Kant on Race and Barbarism: Towards a more
complex view on racism and anti-c olonialism in Kant’, in Kantian Review (2019);
‘The Metaphysics of International Law. Kant’s “Unjust Enemy” and the Limitation of
List of Contributors xv
Self- Authorization’, in Sorin Baiasu, Sami Philström, and Howard Williams (eds), Politics
and Metaphysics in Kant (2011).
Anna Geis is Professor of International Security and Peace Studies at the Institute of
International Politics at Helmut-S chmidt- University/ University of the Federal Armed
Forces in Hamburg (Germany). Among her publications are Recognition in International
Relations. Rethinking a Political Concept in a Global Context (2015, with Christopher
Daase, Caroline Fehl, and Georgios Kolliarakis) and The Janus Face of Liberal Democracies.
Militant ‘Forces for Good’ (2013, with Harald Müller and Niklas Schörnig).
Aimee Genell is an Assistant Professor of History at the University of West Georgia. She is
the author of ‘The Well-d efended Domains: Eurocentric International Law and the Making
of the Ottoman Office of Legal Counsel’, Journal of Ottoman and Turkish Studies (2016) and
‘Ottoman Autonomous Provinces and the Problem of “Semi- Sovereignty” in International
Law’, Journal of Balkan and Near Eastern Studies (2016). She is completing her manuscript,
Empire by Law: The Ottoman Origins of the Mandates System in the Middle East.
Sohail H. Hashmi is Professor of International Relations on the Alumnae Foundation and
Professor of Politics at Mount Holyoke College, South Hadley, Massachusetts. He is the
editor of Just Wars, Holy Wars, and Jihads: Christian, Jewish, and Muslim Encounters and
Exchanges (2012).
Axel Heck is Senior Lecturer in International Relations at the Institute of Political
Science at the University of Kiel. He has published respectively in the European Journal
of International Relations, International Studies Perspectives, and the Zeitschrift für
Internationale Beziehungen.
Thomas Hippler is Professor of Modern and Contemporary History at University
of Normandy in Caen. His publications include Citizens, Soldiers, and National
Armies:  Military Service in France and Germany, 1789– 1830 (2007); Bombing the
People: Giulio Douhet and the Foundations of Air-P ower Strategy, 1884–1 939 (2013); and
Governing from the Skies: A Global History of Aerial Bombing (2017).
Isabel V. Hull is the John Stambaugh Professor of History (retired) at Cornell University.
A German historian, she is the author of The Entourage of Kaiser Wilhelm II (1982); Sexuality,
State and Civil Society in Germany, 1700– 1815 (1996); Absolute Destruction: Military
Culture and the Practices of War in Imperial Germany (2004); and most recently, A Scrap
of Paper: Breaking and Making International Law in the First World War (2014), which was
awarded the certificate of merit from the American Society of International Law.
Anthony F. Lang, Jr is a Professor of International Political Theory at the University of
St Andrews, where he has been since 2004. He writes on global constitutionalism, the
just war tradition, and international political theory more widely. He has published the
books Agency and Ethics: The Politics of Military Intervention (2002); Punishment, Justice
and International Relations: Ethics and Order after the Cold War (2008); and International
Political Theory: An Introduction (2014), along with eight edited volumes and numerous
articles and chapters.