International law in diplomatic history 1

Gerry Simpson

Introduction: three questions, three images

The relationship of international law to the practice of international diplo-

macy, or to global politics, is obscure and, sometimes, paradoxical. As a
prelude, then, to sketching the structuring role international law performs in
the present phase of globalisation, or may have played at different moments
in diplomatic history (a history that, for these purposes, emphasises the
formal institutions and semi-formal practices of diplomacy in inter-state
relations but encompasses, also, the broader world of international political
life), it is important to say something about the ways in which the relation-
ship might be framed in general. Three questions seem pertinent. Does
international law influence or found the diplomatic system, or is it largely
an irrelevance or trifling preoccupation? Has international law been a force
for good (or for global well-being) in diplomatic history? And is it possible to
speak intelligibly of a single body of norms, or way of thinking and acting,
called ‘international law’? These questions might, in turn, generate (at least)
three images or ways of thinking about the field: (1) international law as
virtuous and marginal, (2) international law as constitutive and responsible
and (3) international law as a combination of norm and aspiration. We
can imagine other images, for example international law as substance and
form or as change and stability or utopia and reality (Carr 1946), and other
combinations: there are, no doubt, ways in which international law is con-
stitutive and virtuous. I have chosen these three because of their ubiquity and
influence, and for what I hope are the heuristic possibilities they offer.

Virtuous/marginal
Approached for the first time – by students, by state officials, by the
intelligent, non-specialist reader – international law, as a body of principles
or a way of doing things, might appear virtuous yet marginal. This, too,

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 26 Gerry Simpson

would be the self-description of many international lawyers. From this

perspective, international law is a mostly frustrated project to civilise global
politics, humanise war, tame anarchy, restrain the Great Powers and ensure
fairer re-distributive outcomes.
As a result, international law tends to find itself aligned with a vaguely
leftist, liberal, progressive politics or with a form of anti-politics. Correspond-
ingly, as a general rule, political parties of the centre-left and left seem much
more hospitable to international lawyers (frequently enlisted to fight poverty or
to advance human rights or to end colonialism or to help refugees) than are
parties of the conservative or radical right. But international lawyers are also
prone to represent themselves as opposing or transcending politics altogether.
At conferences to combat global warming (Copenhagen 2009) or create inter-
national criminal courts (Rome 1998) international law is cast in a heroic role:
capable of providing the necessary tools or the language or, even, the sub-
stantive goals, if only politicians would get out of the way (Bassiouni 1997).
But, of course, they don’t get out of the way. And so international law is
understood, too, as a marginal enterprise; lawyers are regularly sidelined,
and law ignored or depreciated, when matters of great political and
economic moment arise. Even the advice of government lawyers or the
arguments of international jurists can be thought of as worthy and intellec-
tually sound but, ultimately, either disposable, displaceable or too plastic
to supply binding constraints. This image of international law as marginal
tends to get reinforced at moments of political crisis.
Dean Acheson, former US Secretary of State, adopted a variant of the
disposability argument when he said, during the Cuban Missile Crisis:

The power, position and prestige of the United States had been challenged by
another state; and the law does not deal with such questions of ultimate power –
power that comes close to the sources of sovereignty. (Acheson 1963)

More recently, the UK House of Commons Foreign Affairs Select Committee

noted, in relation to the decision to intervene in Iraq:

We gained the impression that established international legal standards would be

of secondary importance compared with the need to take action. (Foreign Affairs
Select Committee, 7th Report 2002)

And, at the beginning of 2010, during his appearance before the Chilcot
Inquiry into the Iraq War, Sir Michael Wood, the Foreign Office legal adviser
during that War, revealed that Jack Straw, the Foreign Minister at the time:

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 International law in diplomatic history 27

took the view that I was being very dogmatic [Wood had told Straw that intervention
in Iraq would be unlawful] and that international law was pretty vague and that he
wasn’t used to people taking such a firm position. (Norton-Taylor 2010)

More typically the domain of the letter-writer, pamphleteer or academic,

public international law is an outside position offering the seductions
and anxieties of powerlessness. Virtue and marginality, of course, work in
tandem. By remaining marginal, international lawyers more readily can
advance virtuous ends, adopt utopian projects or engage in outsider politics.
The absence of responsibility brings with it an accretion of freedom. Equally,
a non-conformist position of purity guarantees marginality. Always being
right means never being held to account.

Constitutive
This first image of the relationship between law and diplomacy, though
ubiquitous, is hardly unchallengeable. Indeed, it may be more productive to
think of international law as constitutive of – and not always benign in its
effects on – global politics. International lawyers have created a system
without which international diplomacy would shrivel and international
political life would be rendered unrecognisable. If this view is correct,
international law has participated in, facilitated and established the con-
ditions for many of the practices that are thought to be impediments to a
just world order. For example, the doctrine of sovereignty and the society
of competitive, occasionally warring, occasionally pacific, states with enti-
tlements over their own citizenry and powerful claims to self-realisation,
are creations of international law, not obstacles to its implementation.
To adopt a rough periodisation, running from Westphalian sovereignty
through European colonialism to late-modern global capitalism, it could be
argued that international law, at every step of the way, has established,
legitimised and structured the defining relationships of the era. This is the
case whether it be the project of colonialism (facilitated by international
law rules on territorial acquisition or unequal treaties or trusteeship) or
globalisation (reinforced by public compacts in international economic law
or the private/public arrangements and associated forms of arbitration
entrenched in bilateral investment treaties) or the original Westphalian
sovereign ideal (buttressed by an international legal regime that authorised
war and tolerated massacre). And international law supplies, too, a whole
catalogue of argumentative techniques that prioritise some projects and

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 28 Gerry Simpson

obscure others, institutional processes that include one group of actors and
exclude other groups, and technical resources that can be deployed only by
diplomatically literate elites.
This less orthodox second image of international law holds it to account
for both its achievements and its failures. In this story, it can be, and has at
times been, both malign and powerful: a force for bad.

Law and aspiration

But all of this raises a final question: namely, can we speak of ‘international
law’ as a coherent activity or an accumulation of texts that is somehow one
thing or another (marginal, virtuous, constitutive, noxious)? Probably not,
but a common, and largely misconceived, response to this question is to
posit the existence of two international legal orders. This third image of
international law’s role in diplomatic life is built around a duality between
‘real’ law and speculative jurisprudence. State officials or political scien-
tists, often, will concede the existence or force or ‘normativity’ of law in
areas such as trade or civil aviation while at the same time dismissing as
mere unenforceable aspirations, say, the laws on the use of force or human
rights. At the same time, lawyers themselves think of some parts of interna-
tional law as legitimate (norms possessing, for example, ‘compliance pull’
(Franck 1990) and others as ineffectual relics or insubstantial innovations.
This third image of international law goes back, at least, to Hans
Morgenthau who contrasted ‘two obviously different types of international
law’: a ‘functional international law’ based on ‘deeper covenants’ of cooper-
ation or ‘permanent or stable interests’ and a ‘political international law’ that
was opportunistic, i.e. the product of a transient confluence of circumstances
or a response to an immediate and fluctuating situation (Morgenthau 1940
279), indeterminate (subject to ‘contradictory interpretations (1940, 279)) and
aspirational (failing to reflect the realities of the inter-state order (Jackson
1999, 123–124)).
All of this is a piece with another implicit contrast between Acheson’s
high politics (e.g. use of force or arms control) and the low politics of the
everyday (e.g. trade regulation or maritime resource allocation) with only
the latter susceptible to binding legal regulation. Others have distinguished,
along similar lines, the superior norms arising out of classical international
law (rules intended to shield sovereignty within a pluriverse of states) and a
more recent and largely aspirational ‘declaratory’ tradition in which worthy

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 International law in diplomatic history 29

moral ideals are transformed into worthless legal norms (Jackson 1999).
The classical mode encompasses the standard rules of traditional interna-
tional law, e.g. the laws of war, the right to make treaties, the immunities
of diplomats and title to territory while the declaratory mode is said to
include trading rules designed to alleviate inequalities between states,
laws prohibiting gender discrimination, rules requiring that democracy be
a condition for membership of international bodies and laws invoking a
common heritage of humankind.
This image of a divided international legal order is pervasive but it is
doubtful that it can survive close examination. To take an example (and one
I shall return to) from diplomatic history, the Charter of the United Nations
remains a key foundation of the international legal and political order and
yet it was, of course, also an ‘opportunistic’ response to a particular and
immediate situation (the consequences of German aggression in 1939).
Indeed, it is difficult to see how international norms could develop at all if
the absence of opportunism was a test for their legitimacy. Often, interna-
tional societies are the product of post-traumatic constitutional architec-
tures from Westphalia to Vienna to San Francisco. Meanwhile, the
indeterminacy of international law’s structure of argument has by now
been well established. It is no longer possible to go back to a position
whereby some rules are regarded as having a pre-interpretive ‘essence’.
After all, even so-called technical or functional norms, like all norms, will
consist of a combination of indeterminate readings of the present and
contentious prescriptions for the future.
To conclude, international law’s relationship to diplomacy has been
understood through, at least, these three images related to questions of
virtue, influence or marginality, and character or status. Such images are
constitutive in their own way and they offer a useful framing device for
approaching the expanse of diplomatic history.

An episodic history of international law in diplomacy

Historically, international law’s relationship to diplomacy is defined by

the ways in which it has organised relations amongst the Great Powers (the
problems of hegemony or balance of power), between the Great Powers and
the peripheries (the problems of colonialism or domination or exploitation
or ‘outlaw states’) and between the autonomy and independence of the

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 30 Gerry Simpson

sovereign state, and, at different times, the imperatives of international

regulation, world order, globalisation, and humanitarianism. The remainder
of this brief, inevitably impressionistic, essay will be organised around six
episodes in diplomatic history in which these themes emerge and re-emerge.
In the first episode, classical international law comes of age at Westphalia
in the mid-seventeenth century with the transition from empire to sover-
eignty. These sovereigns then become empires as international law enters
its colonial phase from the seventeenth to the mid-twentieth century. A third
period begins with the Congress of Vienna in 1815 and the growing self-
awareness of the hegemons as they form incipient institutions or ‘regimes’. It
ends with the Great War and the formation of permanent organisations at
Versailles in 1919. The deepening bureaucratisation and juridification of
international diplomacy and the resistance to these processes are the subjects
of two final sections on the Charter era (1945–1990) and the present phase of
globalisation, proliferation and diffusion.

Empire to sovereignty
In 2004, one year after the beginning of the Iraq War, then British Prime
Minister, Tony Blair, gave a speech at his Sedgefield constituency in north-
ern England (Blair 2004). In the midst of an otherwise unremarkable apol-
ogia for the war, the Prime Minister made a surprising reference to the
Peace of Westphalia, calling for the abandonment of the Westphalian
consensus on the inviolability of sovereignty (this, as a precursor to arguing
for a reinvigorated doctrine of humanitarian intervention). Westphalia
(in fact several treaties adopted at Münster and Osnabrück in 1648) has
come to represent, then, a point of inauguration for modern international
law and for the modern state, a moment when the core concepts of sover-
eignty, hegemony and balance became part of international law’s official
inventory.
No doubt, there is something arbitrary and clichéd about harking back
to Westphalia in this way (Teschke 2003). After all, states existed prior to the
seventeenth century (Gat 2006); international law can trace its origins to
the Roman ius gentium, Cicero’s cosmopolitanism (Cicero 54–51 BC [1998]),
Aquinas on just war (Aquinas 1265–1274 [2002]) or the Salamanca School
of the early sixteenth century; there may be more significant openings both
earlier (the Peace of Lodi, 1454; the Peace of Augsburg, 1555) and later
(say, the Treaty of Utrecht, 1713); and pre-modern history is dotted with

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 International law in diplomatic history 31

examples of practices and norms that would be familiar to contemporary

international lawyers as the ‘laws of war’ or ‘diplomatic immunity’ or
‘treaty-making’ (Bederman 2001; Mattingly 1955). Equally, international
law, in the broad sense of a code of behaviour applied to cross-border
relations, was found outside Europe long before Westphalia. There were,
for example, Islamic laws, from the seventh century onwards, applying to
relations between Muslim states and between Muslim states and heathens
or infidels (Neff 2010, 5).
But Westphalia makes some sense as a cipher for the formation of the field.
It coincides, roughly, with the work of three great post-Spanish School
political philosophers of the international: Hobbes, Grotius (indeed, Hugo
Grotius just missed out on a place in the Swedish delegation to Westphalia in
1643) and Pufendorf; it is a self-conscious effort to contractualise relations
between European states (Bull 2002); it formalises a transition from empire to
sovereignty in the European political order and, at the risk of anachronism, it
might be described as one of the first examples of comprehensive, post-war,
multilateral, treaty-making in the international system. As Charles Tilly has
put it: ‘War made the state, and the state made war’ (Tilly 1975, 42). And war
and state, at Westphalia, made a certain sort of international law.
In one sense, then, international law, at Westphalia, was ascendant. The
Treaties confirmed the supplanting of centralised imperial power by a
juridical arrangement of autonomous sovereigns. Medieval theocracy
gave way to early modern legal-rationalism (for some time after, the
Vatican continued to think of international law as a Protestant conspiracy),
and religious authority to secular consensus. A small number of sovereigns
within Europe were accorded legal equality in their external relations
and, most importantly, in their internal political and religious arrange-
ments. Indeed, the Treaties contain early examples of what came to be
called the (legal) principles of non-intervention and self-determination.
The Westphalian period, then, confirms the centrality of a language of
law and legality that states deploy in their relations with each other.
But the moment is ambiguous, also. The affirmation of sovereignty can
be thought of as a defeat for a particular conception of (international) law as
the basis for a world society. The autonomy of political units within Europe
becomes the foundation for a narrower idea of international community
and a guarantee against projects that saw international law’s destiny in
federation, perpetual peace, an updated res publica Christiana or a future
world government (Abbé de St Pierre 1713; Kant 1795 [1970]).

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 32 Gerry Simpson

Indeed, the whole idea of law as a form of judgement standing over

sovereigns was sidelined. It is true that declarations of war in the late
seventeenth century frequently contained references to the ‘righteousness’
(England’s 1652 Declaration of War against the Netherlands) or ‘justice’ (the
Netherlands 1652 Declaration of War against England) of the cause (Neff
2005, 106–107) but Westphalia expressly rejected a structuring principle
that was to become central from Versailles onwards: namely the idea that
inter-state relations, and in particular war, can be organised on the basis of
some sort of centrally enforced accountability for illegal acts. If international
law began in 1648, it did so in a forgiving, agnostic mood, introducing us to
sovereignty as a form of forgetfulness:

That there shall be on the one side and the other a perpetual . . . Amnesty, or Pardon
of all that has been committed since the beginning of these Troubles, . . . but that all
that has pass’d on the one side, and the other . . . during the War, shall be bury’d in
eternal Oblivion. (Treaty of Münster, article II)

And so, Prime Minister Blair found Westphalia uncongenial to his political
project of belligerent humanitarianism precisely because Westphalia
rejected justice or righteousness as an organising principle of the interna-
tional (European) order. Instead, sovereignty became its own justification;
ex post facto justice was cast into oblivion and assertions of righteousness
were relativised. International law might legitimately seek to prevent the
recurrence of wars (Westphalia followed, after all, a century-long European
bloodbath) but it had little role in judging them (it would take three hundred
years for the diplomatic system to embrace this sort of retributive legalism
at Nuremberg and Tokyo).

Sovereignty to empire
If international law was bound up with the transition from (Holy Roman)
empire to sovereign state in 1648, by the nineteenth century it had spent
at least three centuries organising relations amongst some of the same
European states in their imperial mode, and between these European metro-
poles and their colonial territories. This relationship between international
law and empire has been understood in two quite distinct ways. In the first,
international law tempers empire, then dismantles it. In the second, interna-
tional law facilitates or legitimises empire then obscures it.

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 International law in diplomatic history 33

It is not uncommon to think of international law as instinctively anti-

imperial: one more liberal-left project capable of being deployed to resist
empire. The doctrines of sovereign equality or human rights, say, are applied
on behalf of colonised peoples in order to promote self-determination or
national liberation or development. Historically, then, the traditions of
naturalism, then humanism, then liberalism, in which many international
lawyers were situated meant that some international legal writing and legal-
diplomatic innovation was concerned to, if not oppose, then certainly soften
the effects of, colonial exploitation. At the very least, progressive interna-
tional lawyers pointed to passages in Vitoria (1532 [1991]), Suárez (1613
[1944]) and, though with less confidence, Grotius (1605 [2006]), to show that
the field’s founders had been uncomfortable with the wholesale absorption of
non-European lands by the great European powers. The emblematic moment
in international law’s resistance to empire is a period of decolonisation
running from the mid 1950s to the mid 1970s when General Assembly
resolutions, legal scholarship and doctrinal innovation coalesced into a
language of emancipation, and dozens of former colonies in Africa and
Asia became states. Some of international law’s anti-colonial reputation is
staked on the UN Charter (with its Trusteeship System for colonised peoples)
and the 1960 Declaration on the Granting of Independence to Colonial
Peoples (with its more full-blooded rejection of colonial administration).
There is a residue of this period found in the invocations of a Palestinian
right to self-determination or a Kurdish claim to a homeland or, more
tangentially, in attacks on neo-colonialism or uneven development or pred-
atory global capitalism.
This once-standard account is associated, too, with a conception of inter-
national law as somewhat marginal to the economic and strategic imper-
atives of colonialism. According to this view, empire results from competition
amongst the Great Powers, the manifest destiny of nation-building, the need
to invest surplus capital or acquire raw materials, and personal ambition.
International law’s role, then, is to speak for the natives (Vitoria 1532 [1991])
or head off war by allocating colonial territory (General Act of the Congress
of Berlin 1885) or establish some basic standards of human decency (anti-
slavery protocols in the nineteenth century, trusteeship arrangements in the
twentieth).
Compelling recent work has turned these orthodoxies on their heads
by showing how international law was formed, or is implicated, in the
European domination and exploitation of the non-European peripheries

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 34 Gerry Simpson

(Anghie 2005). The writings of many classical international lawyers are

re-read here as arguments for the extension of European rule to the colonies.
Meanwhile, a host of euphemistic international legal doctrines (discovery,
conquest, terra nullius, settlement, acquisition) is charged with permitting
extirpation and war, and facilitating colonial expansion. The mid-to-late
nineteenth century is regarded as a bleak time for international law; in that
period international lawyers began to construct legal theories distinguishing
civilised and uncivilised peoples (Gong 1984) or justifying the non-
recognition of ‘savages’ (Lorimer 1883 [2001]). The Treaty of Berlin is the
culmination of unapologetic empire: an effort to extend the balancing mech-
anisms introduced at the Congress of Vienna in 1815 to a non-European
world. International legal techniques for claiming and disbursing territory
facilitated the partitioning of Africa at the Berlin Conference of 1884–1885.
Within two decades from 1875 to 1895 most of Africa had been appropriated
to the colonial powers (prior to 1875 only one-tenth of African territory had
been colonised). The Treaty of Berlin formalised empire and did so through
the language and doctrine of international law.
The Treaty may have been adopted in order to save Europe from war by
neutralising inter-imperial rivalry but Europe, in 1914, went to war in any
case. After the Great War, empire was repackaged in the League of Nations
Covenant, which contained, in article 22, the outlines of a system (the
mandates) that seemed also to prefigure the slow recession of classic
colonialism. Colonialism did not disappear but became a matter of interna-
tional administration and oversight during the inter-war period and later in
the UN trusteeship system. Even international law’s anti-colonial peak in
the 1960s, when it seemed to be at the vanguard of decolonisation, turns
out to have been a much more equivocal experience. The independence of
new states in the era of decolonisation was highly conditional. Many were
subject to the economic stringencies of the World Bank and structural
adjustment, many were recruited by the superpowers for bloody proxy
wars and all were eventual participants in a global economic and political
order that began as ‘neo-colonialism’ and later became ‘globalisation’.
The deeper implication of all this is that international law is founded on
colonial and neo-colonial exclusions and distinctions. These are subject to
alteration with each generational shift. Languages and legal relations are
modified and made palatable as each generation of enlightened empire-
builders looks back on the vulgar imperialism of the previous one. Terra
nullius becomes colony, colony becomes trust territory, trust territory

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 International law in diplomatic history 35

becomes territorial administration. Discredited rhetorics of separation and

exclusion (the nineteenth-century distinction between civilised and uncivi-
lised peoples; earlier distinctions between Christians and infidels) are refur-
bished, de-racialised or secularised (their counterparts are found in the
distinctions between democratic and undemocratic sovereigns or between
developed and underdeveloped states) but, in the end, the spectres of empire
are always present in new programmes, logics and orientations.

Hegemony to Concert
International law is a practice of administration and organisation (it organises
sovereigns and it facilitates, then administers, colonial relations). The classic
telos of the project is the international organisation itself and, more ambi-
tiously, the promise of a global constitution. Establishing institutions is a
negotiation, though, between the competing claims of hegemony, sover-
eignty and some concept of global authority. In Vienna in 1815, the great
European powers initiated a public ordering project that was to culminate a
century and half later with the UN Charter.
The Congress of Vienna in 1815 was a response to Napoleonic revolution,
conquest and imperial ambition. It sought to restore Europe to some sort of
equilibrium by institutionalising the balance of power, partially restoring
the sovereignty of middle and minor powers and by introducing a novel
form of Great Power management. The secret protocol, signed by the Four
Powers (Austria, United Kingdom, Russia and Prussia) at Langres in 1814,
affirmed that ‘relations from whence a system of real and permanent
Balance of Power in Europe is to be derived, shall be regulated at the
Congress upon the principles determined upon by the Allied Powers them-
selves’. International law, or what was to be known as the public law of
Europe, was intended to bind this arrangement together in a set of treaties
and norms for the regulation of nineteenth-century Europe. This was the
essence of the Concert system that was to operate, though with diminishing
effect, until the Great War.
The Congress of Vienna, though, is not a particularly celebrated marker
in the history of international law and the diplomatic system (see Chapter 2
in this volume). It seems distinctly pre-modern in its lack of an institutional
architecture, in its failure to create any judicial organs, and in its overall
lack of solidity. And, of course, it was, famously, ‘the Congress that was not
a Congress’ (as Talleyrand put it: Palmer 1977, 139). Representatives of the

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 36 Gerry Simpson

smaller powers (principalities, fiefdoms and so on) danced and drank

through a year-long social calendar but they did not form themselves into
a general assembly. There was no legitimation from below. Vienna was
Dumbarton Oaks (the elite Four-Power – United States, United Kingdom,
the Soviet Union and China – meetings in 1944) without its San Francisco
(the plenary conference in 1945 to draft the UN Charter). The Great Powers
determined the future of Europe in secret protocols drafted prior to the
Congress, in Metternich’s apartment in Vienna.
Still, there are a number of important respects in which the Congress of
Vienna and the subsequent Concert era foreshadowed twentieth-century
innovations in institution-making. For example, the bureaucratisation of
international law began here. The Congress was, in effect, two plenary
committees and ten sub-committees (reporting to the plenary committees
on matters such as diplomatic precedence, the slave trade and international
rivers). In addition, the Vienna settlement concretised the victors’ successes
in war, endorsed particular internal government structures (in this case,
hereditary rule) and introduced a doctrine of mild interventionism
(designed to prevent further revolutionary outbreaks). Most of all, Vienna
brought into being or, at least, juridified, the idea of an ‘international
community’ acting as the guardian of peace, good government and the
international rule of law.
This combination of technocratic, legalistic decision-making (the com-
mittees, the treaties, the plan for regular congresses) and political decision
(the tendency to have treaties merely ratify the pre-determinations of the
leading states, and the willingness of coalitions of these states to engage
in extra-legal action when constrained by the existing institutional
arrangements) was to prove archetypal when the great twentieth-century
institutions were being founded.

Concert to League
As the Concert system began to wither towards the end of the nineteenth
century, international law was undergoing a vigorous expansion in the
technical (e.g. the establishment of the Universal Postal Union in 1874),
humanitarian (e.g. the St Petersburg Convention in 1868) and colonial (the
Treaty of Berlin in 1885) spheres. But the early twentieth century was a
paradoxical moment for international law. On one hand, the discipline was
newly invigorated by the entrenchment of whole new fields of regulation

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 International law in diplomatic history 37

such as the law of war (at The Hague in 1899 and 1907), and collective
security (at the League of Nations in Geneva throughout the inter-war
years) and the inception of others (e.g. international criminal law at
Versailles in 1919). On the other hand, the Great War, German revanchism,
Bolshevik isolation and institutional paralysis combined to produce a
sense that international law was, again, marginal to the central dilemmas
and practices of war and peace. Not for the last time, productivity failed
to guarantee relevance. And even international law’s ‘successes’ were the
subject of critique either shortly after (Schmitt 1950) or in retrospect
(Jochnick and Normand 1994). A further problem was that these new legal
regimes (whatever their merits) seem to work against each other in some
not-yet-quite-fully-conceptualised way. For example, the humanisation of
war (and the respectability juridification seems to afford the practice of war)
sat uncomfortably with the effort to criminalise it at Versailles. The crimi-
nalisation of war, meanwhile, seemed incompatible with softer efforts to
regulate war or preserve sovereign prerogatives in the League of Nations
Covenant or, later, the Kellogg–Briand Pact of 1928.
In retrospect, it is possible to discern four views of international legality
in this period. In the first, a bureaucratised, judicialised and institutionalised
international law was posited as the solution to the problems of war,
lawlessness, colonialism and clandestine diplomacy. This perspective has
come to be associated with Woodrow Wilson (though he is an ambiguous
figure in this regard) and the League of Nations Covenant. For Wilson,
the First World War was caused not by German aggression but by the
deformities of old-European diplomacy with its secret articles, its endless
subterfuge and competition, and its roots in national vanity. All of this
was to be substituted by an open, transparent, accommodationist ethic
rooted in international legality and a diplomacy conducted through public
assemblies and institutions. War would be tamed by collective security,
empire would be transmuted into administration and politics would
become law. This was the League of Nations ideal: international law as
virtuous and constitutive. It is an ideal that continues to motivate a sub-
stantial cadre of international lawyers.
A second view, now associated with the German constitutional and
international lawyer, Carl Schmitt, was sceptical of this turn to legalism
and institutions. According to Schmitt, a nineteenth-century international
legal regime founded on the balance of power, a rough formal equality
amongst states and an agnosticism about the responsibilities of war was

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 38 Gerry Simpson

usurped at Versailles by a hegemonic and punitive legal order. Defeated

states were no longer rehabilitated or reabsorbed into a new configuration
of power (post-Napoleonic France’s early readmission into the Quintuple
Alliance in 1815 was the model here) but were instead subject to criminal
sanctions and exile from the system (e.g. the reparations imposed on
Germany and Turkey). Their leaders were made individually culpable for
acts of aggression (article 227 of the Treaty of Versailles). What had once
been mistakes of statecraft were now crimes. Meanwhile, war’s winners
were no longer merely the temporary beneficiaries of fate but the guardians
and creators of a new legal order and hitherto provisional coalitions of
particular interests were transformed into the ‘international community’.
‘Pest control’ had displaced war; enemies had become criminals. Interna-
tional law, vesting legitimacy on these arrangements, was central to all of
this but its effects on international diplomacy were malignant. Negotiation,
diplomacy, the economic calculations of realism, the classic Westphalian
assumptions about the equality of nations, and the sense that ‘it must
always be kept in mind that after a war we have sooner or later to live
with our enemies in amity’ (Hankey 1950), had all given way to the
imperatives of punishment and retribution.
But not everyone wanted to either live with their enemies or embrace an
‘international community’ capable of repressing them. A third – and partic-
ularly hostile – response to the League of Nations was that of a largely
rejectionist Bolshevism. Periodically, throughout history, revolutionary
powers have emerged. These, usually dominant (contemporary Iran is an
example of a middle-power revolutionary state) powers do not simply seek
recognition as a Great Power or make classic territorial claims. Instead, the
organising political ethos of such states makes them radically incompatible
with the existing international order. Martin Wight associated such states
with what he called catastrophic revolutionism: the desire to transcend the
existing structures through violent action (Wight 1994). Philip II of Spain,
Hitler, and (at least first-term) Reagan each fall into this category. The
Soviet Union in its early fervent Leninist phase was a revolutionary power
in this regard (by the 1940s under Stalin it had begun to behave as a more
familiar alliance-building Great Power). For it, the League of Nations was
a parliament of capitalists. Its refusal to join, and opposition to, the League
was symptomatic of a distrust of accommodation or neutrality.
The post-war ‘realists’ – Reinhold Niebuhr (the American, ‘Christian’
realist), E.H. Carr (the English author of The Twenty Years’ Crisis),

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 International law in diplomatic history 39

Morgenthau (see Chapter 2), post-war US Foreign Policy doyen, George

Kennan – represented a fourth view on all this: one that regarded the political
as constitutive and the legal as epiphenomenal. They thought the relationship
between the diplomatic system and the legal order had become radically
disjunctive throughout the inter-war period. For them, international law
managed to be at once both supremely irrelevant and dangerously seductive.
The League of Nations and Wilsonian diplomacy had been built on a fantasy
about the motivations behind inter-state rivalry and the potential constraints
law might impose on hegemonic or imperial ambition. The war-like would not
be deterred much by declarations of war’s criminality or illegality but the
innocent might believe that by rendering war unlawful there was no need to
take precautionary measures against it.
Perhaps, though, from this perspective, the greatest error made by interna-
tional lawyers lay in their teleology of progress. The relationship between law
and diplomacy was a relationship between a futile project or narrative of
improvement and advancement, and a structure of international relations that
is resilient, static and trans-historical. A later ‘structural realist’, Kenneth
Waltz, remarked on the ‘striking sameness in the quality of international
life through the millennia’ (Waltz 1979). In the absence of federation or
world government, and given the proclivities of powerful sovereigns,
Wilsonian international lawyers, on this view, were scheming, hopelessly,
against history.

League to Charter
After the Second World War, the scheming intensified but this time, and
to avoid the shortcomings of the League system, international legal institu-
tions were to be more closely aligned to the realities of collective security and
the balance of power and less punitive in their treatment of enemy or defeated
states. The post-war era was built around three pillars and a decoupling.
Bretton Woods, San Francisco and Nuremberg provided, respectively, the
economic, social-political and retributive bases for the post-war diplomatic
order. But this whole diplomatic and juridical order became unhinged as a
result of the onset of US–Soviet rivalry and competition. The world’s most
elaborate and self-confident international legal order was imposed upon the
strategic reality of mutually assured destruction (MAD). International law
had entered its neurotic age. The ostensible vibrancy of law’s institutions and
norms masked an intense anxiety about the survival of humanity.

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 40 Gerry Simpson

In many respects, though, the edifice was impressive. The Charter drafted
at San Francisco seemed to offer a brilliantly realised and redemptive
version of the Covenant. The Great Powers would no longer require balanc-
ing (after all they were allies now) but would act as a collective security
force patrolling a largely disarmed world (this was Roosevelt’s ‘Four
Policemen’ model) in which enemy states would be slowly rehabilitated.
There was a representative second chamber, the General Assembly, where
middle and minor powers would be given a voice. Meanwhile, presiding
over all of this was the force of international law. The classic legal principles
of diplomacy (sovereignty, territory, equality) were to be joined to an
invigorated new international law with an emphasis on human rights,
decolonisation, disarmament and a tough prohibition on the use of force
in inter-state relations. Bilateralism, secrecy, thin cooperation, threat and
counter-threat, and ad hocery would be supplanted by a society of ‘peace-
loving’ states engaging in powerful new forms of multilateralism and
communal activity.
There were certainly successes. Human rights law grew out of its aspira-
tional (the Universal Declaration of Human Rights) or interstitial (e.g. article
55 of the UN Charter) origins to become a system of legal rules (the
International Bill of Rights) and institutional sites (Geneva, New York). The
UN Charter was creatively re-read in order to permit ‘peace-keeping’ or, later,
‘peace-building’, decolonisation was transformed from administrative rou-
tine to moral–legal imperative within a decade and half of the San Francisco
meeting and international law in general began to infiltrate virtually all
aspects of international social and political life from civil aviation to space
exploration to atomic energy to environmental protection.
In some respects, though, the diplomatic system and the ideological
schism underlying it proved stubbornly resistant to all this innovation.
The political seemed to offer a retort to every legal principle. Neither classic
re-statements of sovereign equality or domestic jurisdiction (old diplomacy)
nor refurbished doctrines of collective security (new diplomacy) sat com-
fortably with the strategic realities of superpower spheres of influence.
Indeed, these spheres of interest or influence constituted the extra-legal
norms that defined the initial phases of the post-war settlement; in
Hungary, in the Dominican Republic, in Czechoslovakia and in Nicaragua,
intervention was the rule not the exception. Similarly, collective security
could only work where there was historical anomaly (the Chinese seat
was located in Taipei until 1971) or diplomatic farce (the absence of the

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 International law in diplomatic history 41

Soviets from the Security Council during the vote on Korea in 1950) or ultra
vires creativity (a brief constitutional overreaching on the part of the General
Assembly at the time of the Korean crisis).
The post-war era could be configured, then, as familiar diplomatic
manoeuvring built on pessimism and acted out against a backdrop of
shiny but sometimes marginal legal institutions and texts. International
legal initiatives in the area of disarmament were rendered nugatory by an
intensifying nuclear arms race; the grand political gesture (Reagan and
Gorbachev in Reykjavik) seemed so much more promising than the endless
legal and bureaucratic wrangling around the Non-Proliferation Treaty.
Meanwhile, the centrepiece of the UN system, article 2(4)’s prohibition of
armed force, was undergoing an existential crisis provoked by the sheer
persistence of war. The UN Charter seemed beside the point in a political
environment defined by its incumbent insecurities, mad paranoias and
cold-eyed strategising. The two other wings of the post-war settlement
fared no better. The Nuremberg principles possessed only hortatory value.
International criminal law was useful as a language of calumny but, in the
absence of settled rules and enforcement machinery, there was not a single
trial of an alleged war criminal before an international criminal court until
well into the 1990s. With the field in recess, war crimes trials became local
affairs: in Jerusalem or in Frankfurt or in Lyon. Bretton Woods, meanwhile,
gave rise to institutions – the World Bank, the International Monetary Fund
(IMF) – but not to the institution that international economic lawyers
desired most dearly, a judicial tribunal to regulate, adjudicate and enforce
economic relations amongst states.
There was a growing sense that, after an initial wave of optimism, inter-
national lawyers, unable to fully comprehend the nuclear threat, were rear-
ranging the deck-chairs by retreating into ‘positivism’ (parsing texts or
interpreting rules without much thought for compliance or structure) or by
embracing sociology (bringing text into conformity with behaviour) or by
reinvigorating naturalism (positing fundamental norms of human dignity
against which ‘law’ could be judged) or by building institutions that seemed
disassociated from the realities of superpower rivalry, colonial exploitation
or economic cruelty. Unexpectedly, towards the end of the century, an
opportunity presented itself; the Soviet bloc collapsed and this collapse
seemed to promise a thoroughly re-energised international legal project
and an end to the ideological struggles that had inhibited the formation of
an authentic international law.

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 42 Gerry Simpson

International law’s future

What, then, has public international law become at the post-political

terminus of democracy, globalisation, ecology and market? There are sev-
eral possible answers. In one answer, international law has enjoyed a
transient revival in the interregnum between two falls: that of the Berlin
Wall and the Twin Towers. From 1989 to 2001, then, international law was
in its pomp. The Nuremberg Principles were enshrined at Rome in 1998 with
the establishment of a permanent international criminal court and activated
a year later during the extradition proceedings in the United Kingdom
involving General Pinochet. The architects of the post-war international
economic order and trading regime finally established their World Trade
Organisation (WTO) with its Dispute Settlement Body (DSB) and quasi-
judicial Appellate Body, and the UN Charter’s collective security norms,
finally, worked in response to Iraq’s invasion of Kuwait. International law
had moved from the margins.
The period around the end of the millennium marks a sort of closing, then,
after this period of triumphant legalism. International criminal law is coopted
in the war on terror or mired in politics (neo-colonial or hegemonic or
partial), international economic law gives way to new forms of protectionism
or is sidelined by apparently lawless global financial crises, and the UN
Charter is rendered obsolete by an increasing propensity on the part of the
great powers to use extra-legal force to advance idiosyncratic conceptions of
humanity (Blair) or security (Clinton), or to eradicate evil (Bush II).
A second answer might suggest that nothing much has changed and that
international law’s future will look very much like its past. The Great Powers
will continue to dominate the system and compete (sometimes violently) over
resources. International law might, from time to time, constrain the hegem-
ons, or occasionally provide cover for their adventures but mostly it exists as
a structuring mechanism to guarantee hegemonic power. Sovereignty, too,
will remain constitutive. The great summits (Rome, 1998, Copenhagen, 2009)
come and go but the sovereign prerogatives of states ensure that initiatives
in the area of international criminal law or international environmental law
will founder on expressions of national security or collapse in the face of
insurmountable collective action problems. The old diplomacy, built around
sovereign exceptionalism, diplomatic immunities and voluntarism, will form
the core of international law (Morgenthau’s ‘functional’ international law,

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 International law in diplomatic history 43

Jackson’s classical norms) while newer multilateral initiatives in criminal law

or environmental law fail. Or, to partially invert this picture, the split might
work another way with the classical rules on the use of force or immunity
subject to Great Power caprice or humanitarian corrosion, and the newer
norms of international economic law being rigorously enforced to open
markets or ensure investment security. Whatever the particular division it
will remain the case and has always been the case that: ‘international law is
one more weapon in the pragmatic political calculations of the great powers’
(Douzinas 2007, 216).
A third, and ultimately more convincing, thesis is that international
law’s attachment to global politics is now secure. Law has become – over
the centuries and more than ever – an organising ethics of global life and a
thoroughly embedded and irresistible language of statecraft and diplomacy.
To talk about evil in international society is to invoke, in international war
crimes tribunals, the categories of crime and punishment; to discuss the
economic foundations of the system is to refer to institutional management
undertaken by the WTO or to informal mechanisms such as the Basle
Committee; to argue for the preservation of planetary life is to catalogue a
series of legal landmarks (from Stockholm to Rio to Kyoto) or advance a
set of universalisable legal standards; and to argue about war is to docu-
ment the performance of war through codes of humanitarianism and,
more generally, speak the lexicon of law (the debate over the Iraq War or
the reconfiguration of humanitarian intervention as a ‘Responsibility to
Protect’ being two obvious example of this normative and linguistic turn).
Either one speaks the language of law or one self-consciously casts oneself
in opposition to it. This became apparent at the beginning of the twenty-
first century when a new US administration, allegedly unsympathetic
to multilateralism and international law, came to power in Washington,
DC. It turned out that even its most fervent manifestoes, were couched in
the language of law. The Bush Doctrine, thought to exemplify his
Administration’s radical departure from international legality, was set out in
a National Security Strategy as a successor to the nineteenth-century Caroline
principles (elaborating on the law to be applied to cases of self-defence).
But if international law structures the way we talk, it cannot determine
what we choose or how we act. In this sense, and to return to the themes at
the beginning of the chapter, it can appear procedurally central and sub-
stantively marginal. Institutions are by-passed by sovereigns acting ‘uni-
laterally’ or deep principles can work against the progressive development

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 44 Gerry Simpson

or status of international law (the immunity accorded abusive heads of

state can look from the outside like an extra-legal privilege) or it can look
as if norms are ignored or neglected or violated without consequence by
states acting in some strategic or selfish interest (think, here, of the
allegation that Tony Blair had committed Britain to war in March 2002,
long before the legal arguments were fully canvassed). And public inter-
national law appears marginal when set against the reach and power of
private capital. To what extent did international law create the conditions
for or ameliorate the global financial crisis? And does international law
have any regulatory role in relation to a black economy that now con-
stitutes a second economic global order? Indeed, international can seem
marginal even when it is highly visible. In debates about war, ecology or
poverty, something other than law seems to determine policy outcomes or
life-chances. No doubt, public international law is open to progressive
orientations around the environment or human rights. But the requirements
of sovereignty, consent and hegemony also work against, and often neu-
tralise, these agendas or international legal norms seem too ambiguous or
elastic to force particular results.
The argument around the Iraq War is typical in many respects (of course,
its very visibility makes it exceptional in other respects). For a while, interna-
tional law was the language of argument about the war. Indeed, Charter and
customary law were invoked to demonstrate that regime change would be
illegal in the absence of either a credible threat from Iraq or Security Council
authorisation. This position was rejected by senior government lawyers,
and a minority of academic lawyers, who argued that there had been
Security Council authorisation or, less convincingly, that Iraq did pose a
genuine threat. This debate trundled on and for a while international law
seemed central but inconclusive. But this apparent lack of determinacy or
certainty in the legal material generated a sense that lawyers could not be
relied upon to decide anything: that somehow international law was a game
played by initiates but lacking relevance in the ‘real world’.
But though international law may not mandate particular outcomes,
this hardly disposes of the question of relevance or virtue. Any language
or techneˉ that absorbs political capital (particularly the political capital
of progressive dissent) for a prolonged period of time has opened up
particular ways of thinking about global politics or diplomacy and closed
down others. The rhetorical strategies used to talk about global order
(around dinner-tables, at cabinet meetings, in class-rooms, in international

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 International law in diplomatic history 45

institutions) are now thoroughly infected with legalism. International

diplomacy is unimaginable without international law (see, too, Chapter 2).
The principles that structure international politics (sovereignty, immunity,
territory), the institutional arrangements that facilitate it (the United Nations,
international treaty conferences, regional organisations) and the norms that
regulate it (prohibiting force, humanising war, organising trade) have
become an indispensable part of diplomacy’s repertoire. It is not clear
whether the gains (a common tradition of argument, a language of critique
and transformation, an association with fairness or openness in decision-
making) outweigh the losses (a technocratic detachment from the conditions
of life, the occlusion of redistributive outcomes, the finessing of hegemonic
desire, a culture of expertise).

Bibliography

Abbé de St Pierre, 1713. Projet pour rendre la paix perpétuelle en Europe

Acheson, D., 1963. ‘Remarks’, Proceedings of the American Society of International
Law, 57, 13–15
Anghie, A., 2005. Imperialism, Sovereignty and the Making of International Law,
Cambridge University Press
Aquinas, T., 2002. Political Writings, R. W. Dyson (ed.), Cambridge University Press
Bassiouni, C. M., 1997. ‘From Versailles to Rwanda in Seventy-five Years: The Need
to Establish a Permanent International Criminal Court’, Harvard Human Rights
Journal, 10, 11–62
Bederman, D., 2001. International Law in Antiquity, Cambridge University Press
Blair, T., 2004. www.guardian.co.uk/politics/2004/mar/05/iraq.iraq
Bull, H., 2002. The Anarchical Society: A Study of Order in World Politics, New York:
Columbia University Press
Carr, E. H., 1946. The Twenty Years’ Crisis 1919–1939, 2nd edn., London: Macmillan
Cicero, M. T., 1998. The Republic and The Laws, J. Powell (ed.), Oxford University Press
Douzinas, C., 2007. Human Rights and Empire: The Political Philosophy of
Cosmopolitanism, Abingdon and New York: Routledge–Cavendish
Franck, T., 1990. The Power of Legitimacy Among Nations, Oxford University Press
Gat, A., 2006. War in Human Civilisation, Oxford University Press
Gong, G. W., 1984. The Standard of ‘Civilisation’ in International Society, Oxford:
Clarendon
Grotius, H., 2006, Commentary on the Law of Prize and Booty, M. J. Ittersum (ed.),
Indianapolis: Liberty Fund
Hankey, M. B., 1950. Politics, Trials and Errors, Oxford: Pen-in-Hand Co.
Jackson, R., 1999. The Global Covenant, Oxford University Press

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004
 46 Gerry Simpson

Jochnick, C. and R. Normand, 1994. ‘The Legitimation of Violence: A Critical History

of the Laws of War’, Harvard International Law Journal, 35, 49–95
Kant, I., 1970. ‘Perpetual Peace’, in Hans Reiss (ed.), Political Writings, Cambridge
University Press, 93–130
Lorimer, J., 2001. The Institutes of the Law of Nations, Edinburgh: Blackwood–
Elibron Classics
Mattingly, G., 1955. Renaissance Diplomacy, London: Jonathan Cape
Morgenthau, H., 1940. ‘Positivism, Functionalism and International Law’, American
Journal of International Law, 34, 260–284
Neff, S., 2005. War and the Law of Nations: A General History, Cambridge University
Press
Neff, S., 2010. ‘A Short History of International Law’, in M. Evans, International
Law, Oxford University Press, 3–31
Norton-Taylor, R., 2010. ‘Chilcot Inquiry: Lawyers Expose Pressure to Give Green
Light for War’, Guardian, 26 January
Palmer, A., 1977. Metternich: Der Staatsmann Europas, Hamburg: Claassen Verlag
Schmitt, C., 1950. Der Nomos der Erde im Völkerrecht des ius publicum Europaeum,
Berlin: Duncker & Humblot
Suárez, F., 1944. ‘Tractatus de legibus ac deo legislatore’, in Selections from Three
Works, 2 vols., Oxford: Clarendon
Teschke, B., 2003. The Myth of 1648: Class, Geopolitics and the Making of Modern
International Relations, London: Verso
Tilly, C. (ed.), 1975. The Formation of National States in Western Europe, Princeton
University Press
Vitoria, F., 1991. Political Writings, A. Pagden and J. Lawrance (eds.), Cambridge
University Press, 231–327
Waltz, K., 1979. Theory of International Politics, New York: McGraw-Hill
Wight, M., 1994. International Theory: The Three Traditions, Leicester University
Press

Downloaded from https:/www.cambridge.org/core. The Librarian-Seeley Historical Library, on 05 Jan 2017 at 12:47:41, subject to the Cambridge
Core terms of use, available at https:/www.cambridge.org/core/terms. http://dx.doi.org/10.1017/CCO9781139035651.004