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Just War or Just Peace?Humanitarian Intervention and International Law$

Simon Chesterman

Print publication date: 2002

Print ISBN-13: 9780199257997

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199257997.001.0001

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The Just War

The Just War

The origins of Humanitarian Intervention

Chapter:
(p.7) 1 The Just War
Source:
Just War or Just Peace?
Author(s):

Simon Chesterman (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199257997.003.0002

Abstract and Keywords

This chapter examines the emergence of a doctrine of the just war in the Middle Ages and the competing principle of non-intervention that arose as a corollary of sovereignty. This was not simply a precursor to the contemporary tension between human rights and sovereignty, however, the principle of non-intervention must be seen as linked also to the displacement of scholasticism by positivism in international law in 18th century Europe, and the political transformations taking place at the same time. The term ‘humanitarian intervention’ only emerged in the 19th century as a possible exception to this rule of non-intervention, but its meaning was far from clear: some writers held it to be a legal right; others confidently rejected it; a third group held that international law could or should have little to say about the matter.

Keywords:   humanitarian intervention, Middle Ages, international law, just war, Hugo Grotius, sovereignty, positivism, non-intervention

The subject of intervention is one of the vaguest branches of international law. We are told that intervention is a right; that it is a crime; that it is the rule; that it is the exception; that it is never permissible at all. A reader, after perusing Phillimore’s chapter upon intervention, might close the book with the impression that intervention may be anything from a speech of Lord Palmerston’s in the House of Commons to the partition of Poland.

PH Winfield, 19221

Much of the historical analysis of humanitarian intervention suffers from a lack of precision as to what that term embraces. On the one hand, early commentators failed to distinguish between limited intervention for a specific purpose and all-out war;2 on the other, subsequent publicists conflated intervention premised on the threat or use of force (sometimes termed ‘dictatorial interference’3) with purely diplomatic intercession.4

This Chapter argues that these semantic difficulties reflect a more basic contradiction in the genealogy of humanitarian intervention. For its origins must be seen in the tension between the belief in the justice of a war waged against an immoral enemy and the emerging principle of non-intervention as the corollary of sovereignty. It is misleading to regard this simply as a precursor to the contemporary tension between human rights and sovereignty, however. Analysis of the early international law writings of the scholastics, natural law theorists, and positivists discloses that its moral and legal heritage lies in the earlier conflict between the moral impetus to war over religious differences and the legal restraints that came to be placed on states entering into a society of equals.

In the classical texts, this came to be mediated by recognizing the capacity of one sovereign to wage war on behalf of a people unjustly oppressed by another (p.8) sovereign. This is the subject matter of Section 1 of this Chapter. Section 2 considers the opposing doctrine of non-intervention (or non-interference), which arose during the eighteenth century, connected with the rise of positivism in international law and the political transformations in Europe in that and the following century. Partly in response to this, it was only in the nineteenth century that humanitarian intervention emerged as a coherent term, broadly recognized by publicists as a politically unavoidable—if not strictly legal—exception to the general principle of non-intervention. Section 3 analyses state practice of the era, focusing on the few incidents that are usually cited as evidence of a customary international law right of humanitarian intervention. Section 4 critically reviews the writings of publicists on the subject.

The result is a far more complex picture of pre-Charter international law than that presented in subsequent writings. Many of the debates that arose after the enactment of the UN Charter had been rehearsed long before: the tension between moral and legal rights, politics and law, was already an established part of the discourse on this issue and establishes the context within which contemporary approaches must be considered.

1. CLASSICAL PRECURSORS TO HUMANITARIAN INTERVENTION

International law did not proscribe unilateral resort to war as a means of settling disputes between states until the twentieth century.5 It is therefore not surprising that prior to this time there was little agreement on the principles regulating less extreme circumstances involving the threat or use of force.6 In any event, such a distinction was not often made. Grotius, for example, defined war as the state or condition of parties contending by force as such,7 elsewhere citing Cicero to the effect that between war and peace there is no medium.8 This encompassed even single combats, which he regarded as a form of private war.9 The term ‘intervention’ came into use over the course of the nineteenth century, but its meaning remained imprecise. Moreover, in the absence of a clear distinction between intervention and war10 any regulation of the former could be circumvented by resort to the latter. Thus when the United States objected to measures that Great Britain and Germany proposed (p.9) to take against Venezuela in 1902 in the form of a pacific blockade, the European powers simply acknowledged a state of war to exist.11

It is nevertheless important to distinguish the origins of humanitarian intervention from other justifications for recourse to the threat or use of force. Intervention to protect nationals, for example, has been variously regarded as the exercise of the right of self-preservation, of self-defence, or as justified by necessity.12 Intervention with the consent of the target state and in accordance with treaty obligations also have discrete legal pedigrees, though in practice all may be invoked in circumstances also claimed as warranting intervention on humanitarian grounds. The relationship with such interventions will be considered in Chapter 2.

The classical origins of what became known as humanitarian intervention lie in the emergence of a substantive doctrine of the just war in the Middle Ages.13 This was developed in large part by the scholastics, but achieved its most comprehensive and widely publicized form in the work of the Protestant Hollander Hugo Grotius (1583–1645). International law as originally conceived by the man sometimes labelled its father14 was based less in legal doctrine than it was in a body of principles rooted in the laws of nature. His seminal text, De jure belli ac pacis, presented for the first time a systematization of practice and authorities on jus belli. Though he drew heavily on the work of earlier theorists,15 the intellectual heritage of Grotius, and in particular the idea of the ‘international society’ that he described, continue to inform our understanding of the law of nations.16 This conception of what Hedley Bull came to term the ‘anarchical society’17 of states provided an alternative world view to both the entirely chaotic state of nature as described (p.10) by Machiavelli and later Hobbes,18 and the attempts to bring this chaos under centralized control by restoring the institutions of Latin Christendom,19 or through the construction of new institutions seeking a perpetual peace through human progress as ultimately articulated by Immanuel Kant (1724–1804).20

Grotius raises issues relevant to the emergence of a doctrine of humanitarian intervention in two sections of Book II of De jure belli ac pacis: the quasi-judicial police measure of war against the immoral,21 and the waging of war on behalf of others.22 These will be considered in turn.

1.1. War as Punishment

Justification for taking up arms against the wicked can be found in the writings and practice of most religions and those empires styling themselves as civilized.23 In Europe of the sixteenth and seventeenth centuries, wars and interventions over religious differences were frequent24 and many writers continued to accept such wars as just, either in themselves or insofar as they were undertaken on the orders of God.25 (It took a rare writer such as Alberico (p.11) Gentili (1552-1608) to observe that not merely Jews and Christians, but Ethiopians, Spartans, Turks, and Persians had all been stirred to arms by divine influence.26)

Written at the time of some of Europe’s most savage religious wars,27 Grotius’ work is remarkable for its tolerance: though a pious Protestant, he avoids any statement that might offend Catholic sentiments.28 Abhorring the ‘lack of restraint’29 that characterized the Wars of Religion, and drawing on the progressive ideas advanced by Franciscus de Victoria30 (1480–1546) and Gentili31—at times without formal acknowledgement—Grotius held that war could not justly be made against those who erred in the interpretation of Christianity32 or who refused to accept it.33 These precepts were later reflected in the 1648 Treaty of Westphalia, which provided the foundation for the balance of power policies that remained substantially unchanged until the French Revolution and the Napoleonic wars,34 and marked the transition of Europe from the medieval period of vertically structured hierarchies under Pope and Emperor to the horizontally organized system of sovereign states.35 The Treaty affirmed the right of rulers to determine the confessional (p.12) allegiance of their states and subject (cujus regio, ejus religio)36 and the corresponding secular supremacy of territorial rulers over their dominions (Rex in regno suo est Imperator regni sui).37 This effectively brought an end to interventions for purely religious differences in Western Europe, though religion remained an important factor in the East.38

Nevertheless, Grotius did admit a right to wage war for the purposes of punishment.39 Such a right had been recognized by his scholastic predecessors as necessary to preserve order in a society lacking any higher tribunal to resolve disputes,40 but was generally limited to redressing injuries to the person or the state of the sovereign or where some other basis for jurisdiction justified the resort to war.41 In the manner characteristic of his eclectic work, Grotius cites both scriptural and secular authority for his position;42 central to his argument is a defence of the right of sovereigns to demand punishment not only for injuries committed against themselves and their subjects, but for those which ‘excessively violate the law of nature or of nations in regard to any persons whatsoever’:43

So we do not doubt that wars are justly waged against those who act with impiety towards their parents, … against those who feed on human flesh, … and against those who practise piracy.44

Grotius states that the ‘liberty to serve the interests of human society through punishments’ derives not from the position of authority held by sovereigns but from the fact that, in the order of states, they themselves are subject to no one.45 This in turn depends on his earlier statement that the right of punishment attaches to the wrongdoer, enabling any person free from similar offences to exact punishment.46

In substantive terms the doctrinal shift was not great—the scholastics had also recognized the justice of a war to eliminate abnormal practices if it was commanded by God. But the importance of Grotius’ work lies in the secular (p.13) basis for his natural law.47 Whereas the scholastics characterized a war between equals as punitive by placing one in the position of minister Dei,48 Grotius grounded the state’s right to inflict punishment in the natural law right that ‘originates in each private person’.49

This intellectual shift, together with the political transformations in Europe following the Treaty of Westphalia, established the conditions for the emergence of positivism in international law. The positivists came to reject Grotius’ understanding of punitive war—in large part due to fears that such a doctrine might be abused.50 But his writings in this area are instructive as an example of his more general view that natural law grants each person an executive power to assert not merely his or her own rights, but also the rights of others.51 This also provided the natural law foundation for his defence of a right to wage war on behalf of the oppressed.

1.2. War on Behalf of the Oppressed

Ellery Stowell cites Vindicae contra tyrannos, published in 1579 during the religious wars in France, as the earliest authority asserting the legality of interference ‘in behalf of neighboring peoples who are oppressed on account of adherence to the true religion or by any obvious tyranny’.52 This is somewhat misleading, as the duty to come to the aid of one’s religious brethren had been asserted by European leaders for centuries.53 St Ambrose (c339–97), some thousand years earlier, had written that (p.14)

He who does not keep harm off a friend, if he can, is as much in fault as he who causes it. Wherefore holy Moses gave this as a first proof of his fortitude in war. For when he saw an Hebrew receiving hard treatment at the hands of an Egyptian, he defended him, and laid low the Egyptian and hid him in the sand.54

Its continued influence can be seen in the work of Gentili, who mixes canonical and natural law justifications for coming to the aid of the oppressed. After quoting St Ambrose’s statement that ‘plena est justitia quae defendit infirmos’.55 he proffers a far more natural law rationale:

But so far as I am concerned, the subjects of others do not seem to me to be outside of that kinship of nature and the society formed by the whole world. And if you abolish that society, you will also destroy the union of the human race, by which life is supported.56

Gentili also appears to be one of the first jurists to raise the notion of sovereign accountability, noting that there must be some mechanism to remind the sovereign of his duty and hold him in restraint, ‘unless we wish to make sovereigns exempt from the law and bound by no statutes and no precedents’.57 The circumstances in which this mechanism might be invoked remain vague, however.58

In Grotius the justice of war waged on behalf of the oppressed subjects of another sovereign is distinct from Gentili’s position in two ways. In the first place, it is more clearly a legal right rather than a moral duty. When considering whether one man is bound to defend another from wrong, Grotius limits this to when he can—with convenience to himself.59 (In Hohfeldian terms, this (p.15) would be more accurately described as a privilege.60) Secondly, it is limited to circumstances where a sovereign has violated the hypothetical rights (in Hohfeld’s schema: claim-rights) of his subjects. After noting that political associations have always tended to arrogate jurisdiction over internal matters to themselves,61 he states that

[i]f, however, the wrong is obvious, in case some Busiris, Phalaris, or Thracian Diomede should inflict upon his subject such treatment as no one is warranted in inflicting, the exercise of the right vested in human society is not precluded.62

The rights violated are hypothetical because Grotius doubts that subjects themselves may take up arms against the sovereign, even in extreme situations.63 The bar to action, however, lies not in the unenforceability of the right, but in the incapacity of the subject to act; it is therefore open to another sovereign to assert the rights of the oppressed subjects and intervene on their behalf.64

Samuel Pufendorf (1632–94) endorses Grotius’ restriction of any right of intervention in the following terms:

In our opinion the safest principle to go on is, that we cannot lawfully undertake the defence of another’s subjects, for any other reason than they themselves can rightfully advance, for taking up arms to protect themselves against the barbarous savagery of their superiors.65

This is in very limited circumstances indeed as, like Grotius, Pufendorf denied a general right of revolt to citizens oppressed by their sovereign, restricting a (p.16) citizen’s legitimate use of force against the sovereign to extreme circumstances of self-defence.66 In fact, most commentators of the time either failed to mention any such right,67 or rejected it—explicitly, or implicitly in their adherence to the doctrine of non-intervention.

2. Non-Intervention

In counterpoint to the developments outlined above, an opposing intellectual trend can be observed defending a norm of non-intervention in the affairs of other states. This can be seen in three areas: the rise of positivism in international law; a more general commitment to sovereignty and to the state as a morally free entity; and in the changing political climate of the eighteenth and nineteenth centuries.

2.1. Positivism in International Law

The idea that states need not account for their actions is most forcefully expressed in Thomas Hobbes’ (1588–1679) observation that a state cannot injure a citizen, any more than a master could do injury to his slave.68 In the Leviathan, Hobbes re-emphasized the immunity of the sovereign from temporal accountability in any legal sense:

Concerning the Offices of one Soveraign to another … commonly called the Law of Nations, I need not say anything in this place; because the Law of Nations, and the Law of Nature, is the same thing … there being no Court of Naturall Justice, but in the Conscience onely where not Man, but God raigneth.69

(p.17) As positivism displaced scholasticism in international legal theory, and the balance of power came to dominate international relations in Europe, the excision of theology (and, arguably, ethics70) from international law saw sovereignty emerge as its constituent and increasingly inviolable element. The first commentator to advocate an absolute proscription of intervention appears to have been the German philosopher Christian Wolff (1679–1754). Although preceded in his positivist approach to international law by writers such as Richard Zouche (1590–1660), he is credited with being the first to separate the principles of international law from those which constitute the ethics of the individual.71 Central to his positivism is a rejection of the natural law principles crucial to Grotius’ jurisprudence:

Approval is not to be given to the opinion of Grotius, that kings and those who have a right equal to that of kings have the right to exact penalties from any who savagely violate the law of nature or of nations72 … The source of the error is found in the fact that the evil seems to him of such a nature that it can be punished and that it is quite in harmony with reason that it may be punished by him who is not guilty of it.73

When he considers the right to wage war, Wolff argues that a punitive war is only legal when waged by a state that has itself received irreparable injury, and where satisfaction cannot otherwise be obtained.74 A corollary of this is that a punitive war is not legal if it is waged against a nation because it is ‘very wicked, or violates dreadfully the law of nature, or offends against God’.75 Wolff does allow a limited right of intercession on behalf of subjects ‘too heavily burdened or too harshly treated’ by their sovereign, but draws the line at the use of force.76

Borrowing heavily from Wolff, though distinct in his emphasis on the consensual nature of international law, Emmerich de Vattel (1714–67) similarly adopts the basic premise that the domestic jurisdiction is inviolable:

(p.18)

[The duties of a nation towards itself] are of purely national concern, and no foreign power has any right to interfere [nest en droit de s’en mêter ni ne doit y intervenir] otherwise than by its good offices, unless it be requested to do so or be led to do so by special reasons. To intermeddle [singère] in the domestic affairs of another Nation or to undertake to constrain its councils is to do it an injury.77

Vattel also criticizes Grotius’ assertion that a sovereign may take up arms to chastise a nation guilty of an enormous transgression of the laws of nature:78 this falsely assumes that the capacity to punish derives from the magnitude of that transgression.79 Vattel argues that the right of punishment derives solely from the right to provide for one’s own safety,80 and is wary of the dangers attendant to granting a quasi-judicial authority to states:

Did not Grotius perceive that in spite of all the precautions added in the following paragraphs, his view opens the door to all the passions of zealots and fanatics, and gives to ambitious men pretexts without number?81

However, after establishing the broad proposition that one sovereign may not sit in judgment of another,82 Vattel notes that where subjects have a legal right to resist their sovereign—‘if, by his insupportable tyranny, he brings on a national revolt against him’—any foreign power that is asked to do so may assist the oppressed subjects.83 This right is distinct from the hypothetical right recognized by Grotius in that it does not depend upon recognition by a foreign sovereign in order to be enforceable.84 On the contrary, it requires action by the subjects such that the sovereign and his people may be viewed as two distinct powers, the ‘political bonds’ between them being broken.85

Here may be found, perhaps, the origins of the dual meaning of intervention as it came to be understood in the nineteenth century.86 Vattel himself does not employ the term ‘intervention’ in any technical sense, using forms of the verb ‘intervenir’; to signify both meddling in the internal disputes of another state87 and mediation by a third power between belligerent states.88 (p.19) The phrases ‘se mêler’ and ‘s’ingérer’ occur with far greater frequency.89 More importantly—and in a distinction that was lost on many subsequent jurists—Vattel establishes two discrete circumstances in which what came to be considered intervention may take place.

In general, where no dispute exists between the sovereign and his subjects, there is an absolute prohibition of intervention. Vattel does not refer to this as intervention, however, but as ‘interfer[ing]’ [se mêler] in the entitlement of each state, subject to the rights of others, to govern itself as it sees fit:90

No foreign State may inquire into the manner in which a sovereign rules, nor set itself up as judge of his conduct, nor force him to make any change in his administration … The Spaniards acted contrary to all rules when they set themselves up as judges of Inca Atahualpa. If that Prince had violated the Law of Nations in their regard they would have been right in punishing him. But they accused him of having put to death certain of his own subjects, of having had several wives, etc, things for which he was not responsible to them; and, as the crowning point of their injustice, they condemned him by the laws of Spain.91

By contrast, when considering a state in which subjects are in revolt against their sovereign, Vattel phrases the legal question as being whether another state may enter into the quarrel [entrer dans la querelle]. He concludes that any state may assist or give help [secourir, assister] to ‘brave people who are defending their liberties’, leaving it to the intervening state to determine which of the two parties appears to have justice on its side.92 Moreover, as a corollary of the voluntary nature of the law of nations he constructs, Vattel argues that the two parties must be allowed to act as if possessed of equal right until the affair is decided. This is clearly an extension of his more general pronouncement on disputes between nations:

When differences arise each Nation in fact claims to have justice on its side, and neither of the interested parties nor other Nations may decide the question. The one who is actually in the wrong sins against its conscience; but as it may possibly be in the right, it can not be accused of violating the laws of the society of Nations.93

All this suggests that the confusion over the word ‘intervention’ arose mainly from the independent meaning that was attributed to its presumed antonym: non-intervention. In fact, the latter concept is better rendered ‘noninterference’, and restricted to situations where no dispute exists between subjects and sovereign. A similar distinction is found in Kant’s Essay on Perpetual Peace, in which the fifth of Kant’s preliminary articles states that (p.20) ‘No state shall forcibly interfere in the constitution and government of another state’:94

But it would be a different matter if a state, through internal discord, should split into two parts, each putting itself forward as a separate state and laying claim to the whole; in that case a foreign state could not be charged with interfering in the constitution of another state if it gave assistance to one of them (for this is anarchy). But as long as this internal conflict is not yet critical, such interference of foreign powers would be a violation of the right of a people dependent upon no other and only struggling with its internal illness; thus it would itself be a scandal given and would make the autonomy of all states insecure.95

For consistency, the term ‘non-intervention’ will continue to be used here.96

2.2. Non-Intervention and ‘the Hegelian Myth’

In his book-length defence of a modern right of humanitarian intervention, Fernando Tesόn describes the rise of non-intervention as the excision not merely of theology but of ethics from international law.97 He argues that this was the product of the fetishization of the state as a morally free entity, encouraged by the amorality of positivism and articulated in its most extreme form by G W F Hegel:

257. The state is the actuality of the ethical idea. It is ethical mind … knowing and thinking itself …

(p.21)

258. The state is absolutely rational … This substantial unity [ie, the state] is an absolute unmoved end in itself, in which freedom comes into its supreme right.98

‘The Hegelian myth’, in Tesón’s argot, is the view that foreign intervention is a violation of state autonomy, even when it is undertaken for benign purposes.99 This view came to predominate, he writes, because the natural law limits to sovereignty recognized by Grotius and Vattel were ignored by theorists such as Wolff and Hegel, who posited an autonomous state independent of domestic political morality.100 The influence of positivism then came to displace questions of ethics in international law through the nineteenth and twentieth centuries.101

Such a schema is neat but deceptive. As indicated above, Grotius and Vattel did recognize a right of intervention on behalf of oppressed subjects, but on very different bases. In particular, it is doubtful that the ‘humanitarian component’ of international law before the nineteenth century resembled anything comparable to the sort of Kantian ethics being proposed by Tesόn. He states that the restriction of humanitarian intervention to ‘egregious cases of oppression can be explained by recalling that in the Ancien Régime the right of revolution was subject to a similar limitation’.102 But Grotius admitted no such right of revolution on the part of oppressed subjects, restricting the right of punishment to other sovereigns.103 Vattel, on the other hand, says little of the right of revolution against the sovereign,104 but requires such a revolution to take place in fact before a second state has a legal right to intervene.105

Tesόn’s determination to locate the debate over humanitarian intervention squarely in the realms of moral philosophy also leads him to overstate the significance of Hegelianism in international law. He asserts that by the end of the nineteenth century this view had assumed a dominant position in international legal theory,106 but nevertheless argues that the doctrine of humanitarian intervention had ‘considerable acceptance’ at the time.107 While he is correct in pointing to the importance of anthropomorphism as a defining element of modern international legal theory—a phenomenon beginning with the Treaty of Westphalia, in which the state came to be personified as the territorial embodiment of the Prince108—his account ignores the practice of (p.22) states in the nineteenth century, when the reification of sovereignty came to depend more on the prohibition of the use of force than on a belief as to the moral freedom of states. This is evident most clearly in the doctrine of nonintervention (as distinct from non-interference), which was more concerned with the territorial rather than the moral inviolability of states.

2.3. Non-Intervention at the Start of the Nineteenth Century

Perhaps the clearest political enunciation of the principle of non-intervention is to be found in the Jacobin Constitution of 1793:

118. peuple français est I’ami et I’allié naturel des peuples libres.

119. II ne s’immisce point dans le gouvernement des autres nations; il ne souffre pas que les autres nations s’immiscent dans le sien.109

It is ironic that the Republic that made this declaration in the midst of revolution eventually found internal stability in Napoleon Bonaparte’s mission to conquer the world.110

In the wake of the French Revolutionary Wars, monarchical Europe formed structures to protect the existing order and attempted to enshrine a right of intervention to keep the peace. Through the Quadruple Alliance of Great Britain, Austria, Prussia, and Russia, the victorious powers affirmed their commitment to a stable and monarchical Europe by agreeing, in the event of similar revolutionary activities,

to concert amongst themselves … the measures which they may judge necessary to be pursued for the safety of their respective States, and for the general tranquillity of Europe.111

(p.23) The Quadruple Alliance became the Quintuple Alliance (or Pentarchy) when France was admitted at the first congress held at Aix-la-Chapelle in 1818.112 Differences quickly emerged, however. The British held strong reservations about the expeditions to crush revolutions in Naples, Greece, and Spain, and severed relations in 1822.113 France later withdrew also, leaving Austria, Prussia, and Russia in the Triple Alliance that continued to resist change until the revolutions of 1848.114 The principle of association lived on in the ‘new garb’ of the Concert of Europe,115 but Britain formally dissociated itself from the policy of intervention on the basis of legitimacy in a message of 18 January 1823, when British Foreign Secretary George Canning stated the British Government’s view:

We disclaim for ourselves and deny for other powers the right of requiring any changes in the internal institutions of independent States, with the menace of hostile attack in the case of refusal.116

When Spain’s South American colonies revolted in 1823, Canning joined the United States in opposing any form of European intervention in the Americas.117 This policy was formalized in the Annual Message of James Monroe in the doctrine that bears his name.118

Intervention thus acquired its currency as a term of art only in the nineteenth century,119 but its usage remained imprecise: in one case it denoted a purely diplomatic intercession or the mere expression of an opinion, in another ‘dictatorial interference’ in the affairs of another state. When Lord Palmerston asserted Great Britain’s readiness to counsel friendship and peace in the 1849 war between Austria and Hungary, Robert Phillimore noted this as an instance of intervention.120 Subsequent authors suggest that it might (p.24) have been injudicious but hardly constituted intervention.121 The reasons for the persistence of this dual meaning in the nineteenth century can be understood in light of the emerging norm of non-intervention discussed above,122 but by the last quarter of the nineteenth century intervention had broadly become synonymous with the use of force which might or might not be justified by international law.123

The term ‘humanitarian intervention’ appears to have been used first by William Edward Hall,124 although similar terms such as intervention on the ground of humanity’,125 ‘intervention on behalf of the interests of humanity’,126 and to remove ‘abhorrent conditions’127 appear in the English language literature, and have a longer history still in French.128 Richard Lillich traces the term back to Wheaton’s 1836 treatise, which cites the ‘interference’ of the Christian Powers of Europe in aid of Greek insurgents against the Ottoman Empire (discussed below129) as an illustration that international law authorizes

such an interference … where the general interests of humanity are infringed by the excesses of a barbarous and despotic government.130

From the preceding discussion, it is clear that the ethical and legal origins of this doctrine stretch back much further to the moral impetus to war over religious differences, and the legal restraints that came to be placed on intervention as sovereignty emerged as the axiom of an international society of equals. Having sketched out its pedigree, it is now possible to consider the content of this ‘right’ in customary international law through the nineteenth and early twentieth century.

3. State Practice, 1815–1945

An analysis of pre-Charter state practice illustrates the paucity of evidence of a general right of humanitarian intervention in customary international law. (p.25) Of the various examples raised by modern writers seeking to prove the existence of such a right, most either do not involve the threat or use of force, or retrospectively attribute motives alien to those expressed by the acting states at the time.

This section reviews these examples before proceeding to a closer analysis of the three main examples of allegedly humanitarian intervention in the period: the joint intervention of Great Britain, France, and Russia in aid of Greek insurgents in 1827; the French occupation of Syria in 1860–1; and the United States intervention in Cuba during its war with Spain in 1898.

3.1. Non-Coercive Interference

There are numerous instances of purely diplomatic intercessions that various writers confuse with humanitarian intervention. Efforts by the European Powers to protect Christian populations within the Ottoman Empire provided the two major examples of allegedly humanitarian intervention in the pre-Charter era,131 but also gave rise to lesser disputes sometimes included as such. Mistreatment of the Christian population in Crete caused a revolt against Turkish rule in 1866, but the peremptory demands made by the European Powers were based on Turkey’s treaty obligations and the issue was resolved peacefully.132 The intercession by Austria-Hungary and Russia on behalf of Christians in Macedonia in 1903 was similarly restricted to peremptory demands upon the Sultan to provide for future protection and the payment of compensation to the Christian population.133 The United States and others made various protests to Turkey on behalf of its Armenian population in the years 1904–17,134 but despite deaths in the order of a million Armenians it appears that military intervention was never seriously contemplated.135 In (p.26) 1913 Russia’s Foreign Minister warned of such intervention if there was an Armenian uprising against the Turkish government,136 but its motives were far from humanitarian.137

Between the Powers themselves, representations were often made on behalf of oppressed groups. In 1857 France and Great Britain interceded on behalf of Neapolitan political agitators striving for Italian national unity and freedom from Austrian rule.138 In 1863 the treatment of its Polish subjects caused Great Britain, France, and Austria to make concurrent representations to Russia.139 This coincidence was only in time, however, as each of the three Powers pursued an agenda independent of the others and only tangentially humanitarian.140

In the Americas, the United States threatened to intervene militarily during the Cuban insurrection of 1868–78 (as it eventually did in the subsequent insurrection of 1898141) but this was largely caused by more proximate non-humanitarian concerns142 and no action was taken.143 In Africa, the Congo ‘Red Rubber’ Crisis of 1898–1908 is cited by one commentator as a ‘paradigm’ of the term ‘humanitarian intervention’, but involved popular demonstrations calling for the reform of colonial practices rather than any form of intervention.144

3.2. Non-Humanitarian Interventions

Interventions stricto sensu were not unusual in the nineteenth century, but of the various occasions on which humanitarian motives were asserted—either at the time or subsequently—many can be dismissed as opportunistic or optimistic interpretations of the doctrine.

(p.27) In 1877–8 Russia declared war upon the Ottoman Porte, ostensibly to protect the Christian populations of Bosnia, Herzegovina, and Bulgaria from inhumane treatment and in an action sanctioned by Austria, Prussia, France, and Italy.145 As Stowell notes, however, Russia was also motivated by its desire to acquire new territory in the Balkans and had signed a secret agreement with Austria to this effect. Though Stowell makes a valiant attempt to salvage it as an example of humanitarian intervention,146 most authorities agree (as the British Government argued at the time) that the action, though ‘based in theory upon religious sympathy and upon humanity … was a move, in fact, upon the Straits and Constantinople in pursuance of Russia’s century-long program’.147 Similarly, the 1913 invasion of Macedonia by Bulgaria, Greece, and Serbia had more to do with traditional power politics than a desire to protect the Macedonian Christians.148 The intervention of the United States and Great Britain during the Boxer Rebellion in China in 1900, cited by Rougier,149 was justified at the time as an instance of the protection of nationals and property, but also had the aim of ensuring that China remained ‘open’ to Western trade.150

The closest approximation to an intervention justified on humanitarian grounds between 1913 and 1945 was in the Proclamation on the German occupation of Bohemia and Moravia, made by Hitler on 15 March 1939. In that declaration, he referred to ‘assaults upon life and liberty’ by the ‘intolerable terroristic régime of Czecho-Slovakia’. German troops were ordered to ‘disarm the terrorist bands and the Czech troops who are shielding them; they will take under their protection the lives of all who are threatened’.151 This (p.28) ‘embarrassing exception’152 has, unsurprisingly, not been invoked by writers seeking to establish such a general right.153 Similarly self-serving claims were made by Japan to justify its invasion of Manchuria.154

Tesόn concludes his brief survey of pre-Charter practice by stating that the most important precedent for a right of humanitarian intervention is the Second World War itself.155 Citing Michael Walzer’s just war analysis of the conflict,156 he claims that the Allies fought Fascism not just because Hitler and Mussolini engaged in military aggression, but to defend ‘dignity, reason, human rights, and decency … against degradation, authoritarianism, irrationality, and obscurantism’.157 Though it may be argued that humanitarian concerns played a part in the Allied involvement in the war, they were nevertheless subsidiary to more traditional motives such as self-defence. In any case, the conflict hardly serves as an example of limited intervention in defence of those concerns.158

3.3. Joint Intervention of Great Britain, France, and Russia in Aid of Greek Insurgents, 1827

The emancipation of Greece was a high act of policy above and beyond the domain of law. As an act of policy it may have been and was justifiable; but it was not the less a hostile act, which, had she dared, Turkey might properly have resented by war.

Historicus, 1863159

The joint intervention of Great Britain, France, and Russia in aid of Greek insurgents against Turkish rule in 1827 is frequently cited in the literature as the earliest example of true humanitarian intervention.160 Stowell notes that some writers class it as a defence of the right to self-determination,161 but concludes that it has ‘usually’ been classed as an instance of humanitarian (p.29) intervention motivated by the ‘uncivilized methods’ in which the war was being conducted.162 This rationale has the support of various authorities,163 but it is hardly a complete explanation of events.

The treaty between the three Powers, signed at London on 6 July 1827,164 sets forth in the preamble the specific grounds on which they justified their intervention.165 Of primary concern appears to have been ‘all the disorders of anarchy’ caused by the struggle, which both impeded the commerce of the states of Europe and gave opportunity to pirates, ‘which not only expose the subjects of the High Contracting Parties to grievous losses, but also render necessary measures which are burthensome for their observation and suppression’.166 Secondly, mention is made that two of the Powers (Great Britain and France) had ‘received from the Greeks an earnest invitation to interpose their Mediation with the Ottoman Porte’,167 and together with the Emperor of Russia, ‘animated with the desire of putting a stop to the effusion of blood, and of preventing the evils of every kind’,168 had resolved to combine and regulate their efforts with a view to re-establish peace—efforts demanded ‘no less by sentiments of humanity, than by interests for the tranquillity of Europe’.169

The treaty was, first and foremost, an offer of mediation in the transition to Greek autonomy,170 but contained a secret ‘Additional Article’ outlining (p.30) the consequences that would follow rejection of the offer. (The Additional Article remained secret for all of six days before being published in The Times.171) Again, the primary concern appears to have been the ‘inconveniences and evils’ associated with the disorder in the East: these would necessitate the Powers ‘forming a connection with the Greeks’, by establishing commercial relations and exchange of diplomatic agents.172 However, if either of the contending parties failed to observe the armistice, the Powers noted that they would enforce it, using ‘all the means which circumstances may suggest to their prudence’. They further noted that instructions to this effect would be transmitted to their respective squadrons in the Levant.173

The declarations were rejected and a blockade imposed on 31 August 1827, leading ultimately to the Battle of Navarino on 20 October 1827 and a decisive defeat of the Turkish forces.174 Great Britain’s aims in the conflict appear to have been satisfied when the withdrawal of the Egyptian army from Morea was secured,175 but after the termination of the Russo-Persian war, Tsar Nicholas declared war upon Turkey on 26 April 1828.176 The Porte declared its acceptance of the terms of the London Treaty by a Declaration signed on 9 September 1829,177 and in the peace treaty with Russia, signed five days later.178

Ian Brownlie dismisses characterization of the action as an instance of humanitarian intervention as ‘ex post factoism’,179 stating that the governments of the day did not refer to a legal justification for intervention180 and that jurists and historians have ascribed numerous motives to the action.181 He concludes that the substantial motive was the prevention of racial extermination in the Morea, but that this cannot be discussed ‘in terms of a legal concept which probably did not exist at the time’.182 In so far as this refers to the absence of a customary norm prohibiting genocide at the time he is clearly correct. But when considered as an example of the abuse of sovereign power over subjects within its control, this statement seems at odds with his earlier (p.31) acknowledgement that a majority of nineteenth-century publicists recognized a right of humanitarian intervention, at least by the end of that century.183

Of more weight is his claim that Great Britain and France might have participated in the action due to fears of unilateral intervention by Russia.184 Although this may explain the diplomacy behind the London Treaty and the protocol that preceded it,185 the underlying attitudes were more complex. During the middle stages of the revolt, support for Greece was in large part explained by the sentimental interest of Europe:186 it is likely that, regardless of Russian involvement, public opinion in the two countries would have forced their governments to do something.187 This was reflected in the orders from Lord Bathurst, Secretary of State for the Colonies, to Sir Harry Neale, then Commander-in-Chief of the Mediterranean Station, dated 8 February 1826:

His Majesty has long had reason to lament the atrocities which have disgraced the contest in which Greece has been for many years unhappily involved … His Majesty, however in deploring the continuance of these excesses, has not thought fit hitherto to interpose, except in those cases in which the rights of his subjects … have been clearly compromised. But when it is understood, that, whether with the consent of the Porte or not, designs are avowed by Ibrahim Pacha to extirpate systematically a whole community, to seize upon the women and children of the Morea, to transport them to Egypt, and to re-people the Morea from Africa and Asia, to change, in fact, that part of Greece from an European State, into one resembling the States of Barbary; His Majesty cannot, as the Sovereign of an European State, hear of such an attempt without demanding of Ibrahim Pacha, either an explicit disavowal of his ever having entertained such an intention, or a formal renunciation of it, if ever entertained.188

There is, however, evidence that Ibrahim’s alleged plan was merely a pretext for an alliance between Britain and Russia against Turkey.189 The urgency of these matters (if true) had waned considerably by the time the London Treaty was signed and intervention actually took place. In response to enquiries by the British Government, both the Porte and Ibrahim expressly denied any such intention and the then Prime Minister Canning apparently accepted their word.190 The orders to Admiral Sir Edward Codrington, Commander-in-Chief at the time of the 1827 intervention, made no mention of motive beyond reiterating the terms of the London Treaty and stating:

(p.32)

If the Greeks consent to a truce, you are to consider, in concert with your colleagues, of the measures which may be most proper and most expeditious for putting a period to hostilities and to the effusion of blood.191

The incident is at best a questionable precedent for the doctrine of humanitarian intervention.192 Russian involvement had little to do with humanitarian concerns and—despite the public statements of British (and, to a lesser extent, French) officials—it was this that served as the catalyst for intervention.

3.4. Rench Occupation of Syria, 1860–1

In June and July 1860 thousands of Maronite Christians were killed by Druzes and Muslims on Mount Lebanon and in Damascus, then part of Greater Syria but within the Ottoman Empire. On 31 July 1860 the ambassadors of Austria, Great Britain, France, Prussia, and Russia met in Paris with a representative of Turkey. A protocol was adopted193 and incorporated into a convention signed on 5 September.194 Under the terms of the convention, the Sultan, ‘wishing to stop, by prompt and efficacious measures, the effusion of blood in Syria, and to show his firm resolution to establish Order and Peace amongst the Populations placed under his Sovereignty’, agreed to up to 12,000 troops being sent to Syria ‘to contribute towards the re-establishment of tranquillity’.195 France was to furnish half this number immediately, with the other Powers agreeing to provide further troops as necessary.196 The occupation was originally set to last six months,197 but was extended until 5 June 1861.198 A French force was duly dispatched, but found that the disturbances had subsided and that order had been restored by the Ottoman authorities. Nevertheless, its troops occupied parts of Greater Syria and its warships policed the coast from August 1860 to June 1861.199

(p.33) Brownlie includes this as the most likely exception to his general statement that international practice in the nineteenth century discloses no genuine case of humanitarian intervention,200 an evaluation shared by a number of other publicists.201 The emphasis that has been placed on the French action as a paradigm example of humanitarian intervention appears misplaced, however. It has been argued that the measures taken by the Ottoman Sultan and local authorities rendered foreign action unnecessary and suspicious in light of European interest in the declining Ottoman Empire,202 and that ultimate responsibility for the conflict lay with actions of the Christians themselves.203 More significantly, it has been argued that the consent of the Sultan and the extremely limited mandate of the French forces may take the action outside of traditional definitions of intervention.204 Stowell notes that the Sultan gave his consent only ‘through constraint and a desire to avoid worse’,205 but this makes the action a very dubious precedent for a right of unilateral action.

Perhaps the most important element of the incident as a possible instance of humanitarian intervention is the relative disinterestedness of the acting parties. Despite its occurrence within the context of French colonialism in the region, the occupying force did arrive under the mandate of five European Powers and departed when that mandate concluded. In the second protocol signed at the conference in August 1860, the Powers declared ‘in the most formal manner’ that they would not seek any territorial advantage, exclusive influence, or concession under the pretext of the occupation.206 The humanitarian concerns of the Powers—albeit only for the well-being of fellow Christians—appear to have been genuine.

3.5. US Intervention in Cuba, 1898

There may be an explosion any day in Cuba which would settle a great many things.

Senator Henry Cabot Lodge to Henry White, January 1898207

(p.34) The United States’ intervention in Cuba in 1898 is perhaps the closest example to unilateral humanitarian intervention in pre-Charter state practice. Stowell refers to it as ‘one of the most important instances of humanitarian intervention’,208 though it is cited in the literature less often than the preceding two examples—presumably because of the numerous other and less altruistic motives behind the action, which was but the flashpoint of the broader war with Spain.209 In a matter of months, the Spanish navy was defeated, Spain had relinquished the remnants of its empire, the United States had established itself as a world power, and Cuba was an American protectorate.210

The initial intervention followed reports of atrocities committed by Spanish military authorities attempting to suppress the insurrection that commenced in 1895. Some of these were clearly exaggerated by the ‘yellow journalism’ of the day, which is cited as a cause of the war in its own right.211 Nevertheless, it is not doubted that the Spanish policy of forcing the disaffected population into concentration camps in order to identify revolutionaries caused genuine outrage in the United States. Some 200,000 Cubans were estimated to have died in the camps.212 Two other factors were the leaking of a particularly undiplomatic personal letter, written by the Spanish Minister to the United States, Enrique Dupuy de Lome,213 and the untimely destruction of the US battleship Maine, probably by a Spanish submarine mine.214

In his special Message to Congress of 11 April 1898, President McKinley outlined four justifications for US intervention in the conflict: ‘the cause of humanity’, protection of US citizens and their property in Cuba, protection of US commercial interests, and self-defence.215 A joint resolution was subsequently passed, authorizing intervention on the basis of (p.35)

the abhorrent conditions which … have shocked the moral sense of the people of the United States, have been a disgrace to Christian civilization, culminating, as they have, in the destruction of a United States battle ship.216

The stated goals of intervention were to guarantee Cuban independence and compel Spain to relinquish its authority over the island. For its part, the United States expressly disclaimed any intention to exercise control over the island beyond pacification of the current dispute.217

Subsequent writers, as Brownlie notes, have failed to agree on a characterization of the action.218 Jean-Pierre Fonteyne, who cites six instances of humanitarian intervention in the period, excludes the intervention in Cuba as lacking a clearly humanitarian motive.219 Theodore Salisbury Woolsey, writing at the time of the Spanish American War, noted that ‘it is not on the score of humanity alone … that the President justifies intervention’, but that American interests were ‘deeply involved’ to the point where the action might be properly regarded as self-defence.220 Other jurists have described it as a case of intervention to protect nationals221 or their property,222 and as abatement of a nuisance.223 Walzer less charitably characterizes the action as being perhaps an example of ‘benevolent imperialism, given the “piratical times”, but it is not an example of humanitarian intervention’.224

4. Humanitarian Intervention in the Early Twentieth Century

It is unsurprising, then, that the status of humanitarian intervention at the start of the twentieth century was unclear. A century on, the common statement that a ‘right of humanitarian intervention’ was recognized at this time is at best a partial, at worst a misleading, rendering of the true position. As Brownlie notes, the doctrine was ‘inherently vague’ and found a variety of forms.225 But in addition to the different contents attributed to this ‘right’, more fundamental differences can be seen in its normative status. Evaluation of this status is made particularly difficult by the fact that, as noted earlier, war itself was not prohibited by international law.226 Nevertheless, a survey of the literature discloses certain lines of demarcation between those who confidently asserted a right of unilateral humanitarian intervention, those who (p.36) confidently rejected it, and those who held that international law could or should have little to say about the matter. And it is only by combining the first and third groups of publicists that one may conclude that a majority of theorists recognized such a right.227 Curiously, only a few writers explicitly linked the question of the justification for intervention with that of the manner in which it was exercised. Of these, most held the view that if there was to be an exception to the general rule of non-intervention, collective action was more appropriate than allowing one state unilaterally to take the law into its own hands.

4.1. Humanitarian Intervention as a Legal Right

Of those who argued that humanitarian intervention existed as a legal right, a distinction may be drawn between those who justified it as a quasi-judicial police measure against the crimes of a sovereign, and those who characterized it as a defence of the rights of the oppressed.

4.1.1 Intervention as a Police Measure

In the first category are publicists such as Antoine Rougier, who defined the theory of humanitarian intervention as the attempt to give a juridical basis to the right of one state to exercise international control over the internal acts of another state that are contrary ‘aux his de l’humanité’;.228 Some other notable proponents of this view are Wheaton,229 Woolsey,230 Arntz,231 and Borchard.232 This view is the most explicitly linked to Grotius’ conception of punitive war, and was, on occasion, adopted by representatives of ‘civilized’ governments intervening in the affairs of other states. Thus Theodore Roosevelt stated in 1904 that

[c]hronic wrongdoing, or an impotence which results in a general loosening of the ties of civilized society, may in America, as elsewhere, ultimately require intervention by some civilized nation, and in the Western Hemisphere the adherence of the United States to the Monroe doctrine may force the United States, however reluctantly, in (p.37) flagrant cases of such wrongdoing or impotence, to the exercise of an international police power.233

Some writers also referred to the burdens that power imposed on the bearer,234 or explicitly limited any right of intervention to civilized states.235 As indicated above, however, such a right was disclaimed by the early positivists as too open to abuse,236 and in practice states more commonly relied on less controversial grounds to justify their actions.237

4.1.2 In Tervention on Behalf of the Oppressed

The second group of writers recognizing the legality of humanitarian intervention did so on the basis that a state is, in certain circumstances, entitled to assert the rights of subjects vis-à-vis their sovereign. This may be further divided into three subcategories.

First, it was sometimes argued in general terms that where a state grossly violated the rights of its citizens, any other state with the means and the will to do so was entitled to intervene. This is the modern equivalent of Grotius’ right to wage war on behalf of the oppressed,238 but it was not a view held in an unqualified form by many writers due to the same fear of abuse that led to its abandonment by the later positivists. Johann Caspar Bluntschli, for example, held that a state is authorized to intervene to ensure respect for individual rights and international law, but only where these have been violated in internal conflict within a state and constituted a general danger.239 (It is this form of right that writers such as Tesón and Michael Reisman defend in the modern era.240)

More commonly, and in line with the writings of Vattel, theorists restricted the right of intervention on humanitarian grounds to situations where civil war had broken out241 or acts of rebellion led to the political bonds between sovereign and citizens being broken.242 Although this encompassed (p.38) humanitarian motives—notably in the desire to ‘stay the effusion of blood’, a phrase included in the 1827243 and I860244 treaties authorizing the interventions in Greece and Syria—it was also concerned with maintaining order, seen in the references to averting ‘a general danger’,245 ‘prolonged unrest’,246 and ‘public order’.247

A third presentation of the doctrine limited it still further to situations where a particular race was ‘grievously oppressed’ by power of a different race, perhaps akin to the modern war of liberation from colonial domination.248

4.2. Humanitarian Intervention Proscribed

Those who opposed a right of humanitarian intervention also fall broadly into two camps. The first recognized an absolute right of non-intervention, either on the Hobbesian basis that subjects hold no rights vis-à-vis their sovereign,249 or, more commonly, because any intervention on their behalf—no matter how great the moral claim—is incompatible with sovereignty.250

It is only this first group that might be accused of succumbing to Tesόn’s ‘Hegelian myth’.251 A far larger group adopted a more pragmatic position, spurred by the same concerns that led Vattel to reject Grotius’ assertion of a quasi-judicial authority held by sovereigns as ‘open[ing] the door to all the passions of zealots and fanatics’.252 A form of utilitarian reasoning was commonly invoked, countering the moral arguments in favour of a right of humanitarian intervention with the practical danger of its abuse:

The occasional benefits of such intervention would be outweighed by its liability to abuse. In theory no doubt it is regrettable that international law should prohibit, even by implication, the suppression of outrage, but in practice the number of national Don Quixotes is not found to be considerable, and thinkers of very different schools are content to distinguish between the moral standards applicable respectively to individuals and communities.253

(p.39) Phillimore notes that the general interests of humanity may be defensible as an accessory motive, but as a ‘substantive and solitary justification’ of intervention in the affairs or another country it cannot be admitted into international law, ‘since it is manifestly open to abuses, tending to the violation and destruction of the vital principles of that system of jurisprudence’.254 Even writers who allowed a right of humanitarian intervention nevertheless made note of the dangers of its abuse.255

4.3. Humanitarian Intervention as Political and Unavoidable

The major difficulty in evaluating the legal status of humanitarian intervention in this period is that a large number of writers put the question outside the realm of international law entirely. Historicus (Sir William Harcourt) expressed this in an often-quoted passage published in 1863:

Intervention is a question rather of policy than of law. It is above and beyond the domain of law, and when wisely and equitably handled by those who have the power to give effect to it, may be the highest policy of justice and humanity.256

Various writers echoed his view that international law had little to say about such ‘high politics’.257

Others adopted a more subtle position, noting that there is scope for moral evaluation of state behaviour independent of the legal regime. Herman Rodecker von Rotteck, whom Stowell credits as the first to establish the theory of intervention on the ground of humanity,258 nevertheless held that it should be considered as a violation of the law, but sometimes excused or even (p.40) applauded, as one may excuse a crime.259 Hall explains the apparent political and juristic acceptance of humanitarian intervention as reflecting ‘considerations of sentiment to the exclusion of law’.260 His own position is that no such intervention is legal unless ‘the whole body of civilized states have concurred in authorising it’.261 Where such authorization is not possible, he argues that such measures should be justified

as measures which, being confessedly illegal in themselves, could only be excused in rare and extreme cases in consideration of the unquestionably extraordinary character of the facts causing them, and of the evident purity of the motives and conduct of the intervening state. The record of the last hundred years might not have been much cleaner than it is; but evildoing would have been at least sometimes compelled to show itself in its true colours; it would have found more difficulty in clothing itself in a generous disguise; and international law would in any case have been saved from complicity with it.262

Similarly, T J Lawrence modified his position in later editions to state that in extreme circumstances of cruelty ‘there is nothing in the law of nations which will brand as a wrongdoer the state that steps forward and undertakes the necessary intervention’:

There is a great difference between declaring a national act to be legal, and therefore part of the order under which states have consented to live, and allowing it to be morally blameless as an exception to ordinary rules.263

Brierly points out that it is precisely this contradiction between law and morality that led some writers to regard humanitarian reasons as a legal justification for intervention.264

4.4. Collective Intervention

Lassa Francis Oppenheim, in a passage that remained unchanged through five editions of his work, doubted whether there was a rule admitting ‘interventions in the interests of humanity’, but did note that ‘public opinion and the attitude of the Powers are in favour of such interventions’.265 He concluded (p.41) that such a right may be recognized at some point in the future, but restricted it to collective intervention by the Powers:

Many jurists maintain that intervention is likewise admissible, or even has a basis of right, when exercised in the interest of humanity for the purpose of stopping religious persecution and endless cruelties in time of peace and war. That the Powers have in the past exercised intervention on these grounds, there is no doubt. Thus Great Britain, France, and Russia intervened in 1827 in the struggle between revolutionary Greece and Turkey, because public opinion was horrified at the cruelties committed during this struggle. And many a time interventions have taken place to stop the persecution of Christians in Turkey. But whether there is really a rule of the Law of Nations which admits such interventions may well be doubted. Yet, on the other hand, it cannot be denied that public opinion and the attitude of the Powers are in favour of such interventions, and it may perhaps be said that in time the Law of Nations will recognise the rule that interventions in the interests of humanity are admissible provided they are exercised in the form of a collective intervention of the Powers.266

This was Hall’s position,267 and it finds support in a few other writers such as Pasquale Fiore268 and Amos Hershey.269 It is curious that more writers did not comment on the modality of humanitarian intervention, given the amount of ink spilt on the question of its legitimacy.

The most probable explanation is that its doubtful status meant that little of substance could be said within the positivist paradigm. Those who recognized it as subsisting outside the bounds of international law could not qualify their observation by reference to a norm of conduct; those who sought to evaluate it (if at all) solely in ethical terms apparently saw no significance in whether one or many states intervened. Nevertheless, as Oppenheim stresses, the major instances of alleged humanitarian intervention in the nineteenth century against the Ottoman Empire were collective in character, orchestrated by the Concert of Europe. Moreover, when Russia asserted a right to intervene unilaterally on behalf of Christian subjects persecuted by the Sultan in 1853–4, this provoked the Crimean War in which Great Britain (p.42) and France sided with the Sultan in defence of Turkish sovereignty and independence.270

Conclusion

[Intervention] is a high and summary procedure which may sometimes snatch a remedy beyond the reach of law. Nevertheless, it must be admitted that in the case of Intervention, as that of Revolution, its essence is illegality, and its justification is its success. Of all things, at once the most unjustifiable and the most impolitic is an unsuccessful Intervention.

Historicus, 1863271

These excursions on the theory and practice of intervention from the sixteenth century to the inter-war period are of more than simply historical interest. Most of the themes in contemporary debates on humanitarian intervention are represented in the writings of this period: the moral impetus to act on behalf of the oppressed and not to let evil go unpunished; the concern about abuse of any unilateral right of intervention on subjectively determined grounds; the emerging public discourse on human rights issues and the countervailing desire to maintain independence despite increasingly permeable international borders. Central to these concerns is the perception that international law can neither sanction nor ignore actions that ‘shock the conscience of mankind’.272

There is, however, no consensus on what it can do. The origins of humanitarian intervention lie largely in the dubious legitimacy of wars against the infidel Other and in defence of missionaries to the East. In 1648 the Treaty of Westphalia signalled a new political commitment to sovereignty, heralding the development of a new norm of non-intervention. It is the tension between these principles that gave rise to the doctrine of humanitarian intervention (complicated further by the related doctrine of protection of nationals abroad), but it remains difficult to establish the customary law status of this ‘right’. Analysis of the relevant state practice is confused by the imprecise use of the term ‘intervention’ and the failure to distinguish humanitarian concerns from other motives, with the result that few (if any) bona fide examples of humanitarian intervention can be discerned.

In the first half of the twentieth century, the status of humanitarian intervention became still more problematic. Although true collective action on the part of the international community was politically difficult, the notion of (p.43) unilateral intervention by a state or group of states sat uncomfortably with the increasing emphasis on the inviolability of the domestic jurisdiction. Again, however, there is little in the way of state practice to support a doctrine of humanitarian intervention.

The Covenant of the League of Nations neither prohibited nor explicitly allowed for humanitarian intervention. The primary aim of the Covenant was peace, to be secured by ‘the acceptance of obligations not to resort to war’ and ‘the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples with one another’.273 The use of force was not outlawed as such, but war was made a matter of concern to the entire League; members were required at first instance to submit any dispute to arbitration, judicial settlement, or to enquiry by the Council.274 It is at least arguable that internal human rights violations could have constituted such a dispute,275 though the Council explicitly disclaimed any capacity to make recommendations on a matter that ‘by international law is solely within the domestic jurisdiction of [a] party’.276

Similarly, the Kellogg–Briand Pact said nothing of humanitarian intervention, though its tenor is clearly inconsistent with any such right. States parties stated their conviction that ‘all changes in their relations’ should be sought only by pacific means,277 condemned recourse to war for the ‘solution of international controversies’, and renounced it as an instrument of national policy.278 There was considerable diplomatic activity concerning reservations to this prohibition, but the reservations were limited to the right of legitimate defence or self-defence.279 (Whether the Pact in fact created a legal prohibition of the use of force, and whether that included forceful measures short of war, were topics of some academic debate.280)

The suspicion with which later theorists regarded Grotius’ claim that one state may enforce the rights of subjects in another state remains a central dilemma in a horizontally organized state system. In the absence of a hege-mon to act on behalf of oppressed subjects, some theorists recommended collective police action as a response. Many more held that in extreme circumstances any state could (or would) simply act on its own initiative. More than anything, humanitarian intervention appears to occupy a lacuna (p.44) in the primitive international legal regime of the time. As the norm prohibiting the use of force coalesced in the twentieth century, however, that lacuna became more constrained. This process of coalescence and the prohibition enshrined in the Charter of the United Nations are the subjects of the next Chapter.

Notes:

(1) P H Winfield, ‘The History of Intervention in International Law’ (1922) 3 British YBIL 130.

(2) See below nn 511 and accompanying text.

(3) See, eg, Lassa Francis Lawrence Oppenheim, International Law (New York: Longmans Green & Co, 1905) vol 1,182; Amos S Hershey, The Essentials of International Public Law (New York: Macmillan, 1918) 148; J L Brierly, The Law of NationsC H M Waldock (ed); 6th edn; Oxford: Oxford University Press, 1963) 402.

(4) Relatively modern examples include Roland R Foulke, A Treatise on International Law (Philadelphia: John C Winston, 1920) vol 2, 63–4; Ellery C Stowell, Intervention in International Law (Washington, DC: John Byrne & Co, 1921), passim.

(5) See Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963).

(6) J L Brierly, The Law of Nations: An Introduction into the International Law of Peace (Oxford: Clarendon Press, 1928) 155–6. On the emergence of norms governing hostile measures short of war, see Brownlie, above n 5, 45–6.

(7) Hugo Grotius, De jure belli ac pacis libri tres ([1646] Classics of International Law; Kelsey; Oxford: Clarendon Press, 1925) I, i, § 2(1).

(8) Ibid III, xxi, § 1(1).

(9) Ibid I, i, § 2(1).

(10) See, eg, Fanciscus de Victoria, De Indis et jure belli relectiones ([1557] Classics of International Law; Washington, DC: Carnegie Institution, 1917) De Indis, Sect 3, § 12.

(11) J L Brierly, The Law of Nations: An Introduction into the International Law of Peace (4th edn; Oxford: Clarendon Press, 1949) 285; John Basset Moore, A Digest of International Law (Washington, DC: Government Printing Office, 1906) vol 7, 140–1.

(12) See Brownlie, above n 5, 289.

(13) The justum helium of the Roman empire was construed largely in formal terms, though notions of equity had been introduced by pagan moralists such as Plato and the Stoics, Cicero and Seneca, who condemned unjust war: see Brownlie, above n 5, 4; John Eppstein, The Catholic Tradition of the Law of Nations (London: Burns Oates & Washbourne, 1935) 80; Joachim von Elbe, ‘The Evolution of the Concept of the Just War in International Law’ (1939) 33 AJIL 665, 667–70.

(14) See, eg, Sylvester John Hemleben, Plans for World Peace Through Six Centuries (Chicago: University of Chicago Press, 1943) 42–4.

(15) See Coleman Phillipson, ‘Introduction’, in Alberico Gentili, De jure belli ([1612] Classics of International Law; Rolfe trans; Oxford: Clarendon Press, 1933) vol 2, 9a, 12a.

(16) Unlike Hobbes, who grounded law and morality on the mutual fear of men, Grotius based his conception on the social impulses of the human animal: Grotius, above n 7, Prolegomena, §8; ibid I, i, §10. This international society centred around the understanding that states and their rulers are bound by rules and form a society or community with one another, of however rudimentary a kind: Hedley Bull, ‘The Importance of Grotius in the Study of International Relations’, in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds), Hugo Grotius and International Relations (Oxford: Clarendon Press, 1990) 65, 71.

(17) See generally Hedley Bull, The Anarchical Society: A Study of Order in World Politics (London: Macmillan, 1977).

(18) See, eg, Michael Walzer, ‘On the Role of Symbolism in Political Thought’ (1967) 82 Political Science Quarterly 191, 203; and see generally C B Macpherson, The Policital Theory of Possessive Individualism: Hobbes to Locke (Oxford: Clarendon Press, 1962). Hobbes’ thought in particular remains the intellectual foundation of the dominant Realist (and ‘Neo-Realist’) school of international relations.

(19) One issue on which both Hobbes and Grotius were as one was the authority of the state over the Church: Bull, above n 17, 77. See also Grotius, above n 7, Prolegomena § 11 (natural law would exist even on the assumption that God did not), discussed below n 47.

(77) Vattel, above n 23, I, iii, § 37.

(20) See Immanuel Kant, ‘Toward Perpetual Peace’, in Immanuel Kant, Practical Philosophy ([1795] Gregor trans; Cambridge: Cambridge University Press, 1996) 311. For a modern articulation of Kantian international legal theory, see Fernando R Tesón, ‘The Kantian Theory of International Law’ (1992) 92 Columbia Law Review 53.

(21) Grotius, above n 7, II, xx: ‘On Punishment’.

(22) Ibid II, xxv: ‘On Undertaking War on Behalf of Others’.

(23) On Christianity in particular, see Thomas Aquinas, Summa theologica, II, ii, Question 40; Augustine, Questions on the Heptateuch, On Joshua, Question 10; Alphonsus de Castro, De justa hæreticorum punitione, ii, 14; Francisco Suárez, The Three Theological Virtues: On Charity (1612), ‘Disp XIII: On War’, in Francisco Suárez. Selections from Three Works (Oxford: Clarendon Press, 1944) §5(5) [trans 824]; Grotius, above n 7, II, i and xx; Emmerich de Vattel, The Law of Nations: Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereign ([1758] Classics of International Law; Fenwick trans; Washington, DC: Carnegie Institution, 1916) II, iv. See generally Eppstein, above n 3, 66–7. On Islam and the doctrine of jihad, see Majid Khadduri, War and Peace in the Law of Islamd (Baltimore: Johns Hopkins, 1955) 51–73.

(24) Arthur Nussbaum, A Concise History of the Law of Nations (rev edn; New York: Macmillan, 1962) 69.

(25) Phillipson, above n 15, 34a, lists Bartolus, Baldus, Joannes da Lignano [Giovanni de Legnano], John Wycliffe, Domingo Soto, Covarruvias, and Ayala. See, eg, Giovanni da Legnano, Tractatus de bello, de represaliis et de duello ([1447] Classics of International Law; Brierly trans; Washington, DC: Carnegie Institution, 1917) x–xi [trans 224–31]. Balthazar Ayala Balthazar Ayala, De jure et officiis bellicis et disciplina militari libri III ([1582] Classics of International Law; Bate trans; Washington, DC: Carnegie Institution, 1912) I, ii, §28, states that war may not be declared against infidels merely because they are infidels, but that a just war may be waged on heretics who abandon the Christian faith. He then goes on to state that another just cause of war is where infidels ‘are found hindering by their blasphemies and false arguments the Christian faith and also the free preaching of the Gospel rule’: ibid I, ii, §30, citing Alfonso of Castile [Alphonsus de Castro, De justa hæreticorum punitione [On the Lawful Punishment of Heretics], bk 2.

(26) Gentili, above n 15, I, viii [trans 36].

(27) See Norman Davies, Europe: A History (London: Pimlico, 1997) 563 8.

(28) Nussbaum, above n 24, 109.

(29) Grotius, above n 7, Prolegomena, § 28: Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes.’

(30) Victoria, above n 10. His name also appears as Vitoria and Vittoria. See Phillipson, above n 15, 34a.

(31) Gentili, above n 15, I, ix. See also Suárez, above n 23, § 5 [trans 823–7].

(32) Grotius, above n 7, II, xx, § 50.

(33) ibid II, xx, § 48. See also ibid II, xv, § 8 (treaties may be entered into with infidels). Cf Gentili, above n 15, III, xix. See also Covarruvias, Relectiones on c. peccatum, ii, § 10, nn 4, 5, cited in Johann Wolfgang Textor, Synopsis juris gentium ([1680] Washington, DC: Carnegie Institution, 1916) ch xvii [trans vol 2, 176].

(34) Davies, above n 27, 581–2, 661. The term ‘balance of power’ was first used in the sixteenth century by Francesco Guicciardini (1483–1540), referring to the regional balance of power between the states of the Italian peninsula: Nussbaum, above n 24, 137. It was formally included in the Peace Treaty of Utrecht (1713) 28 CTS 37, which provided that the ‘peace and repose of Christianity’ should be achieved by a ‘just balance of power [justum potentiae aecpuilibrium]’: Nussbaum, above n 24, 137; Rudolf Bernhardt, Encyclopedia of Public International Law (Amsterdam: Elsevier, 1995) vol 2, 751. See also Brownlie, above n 5, 14–18.

(35) See, eg, Antonio Cassese, International Law in a Divided World (Oxford: Clarendon Press, 1986) 34–8; B V A Röling, ‘Are Grotius’ Ideas Obsolete in an Expanded World?’, in Bull. Kingsbury and Roberts, above n 16, 289.

(36) See Bull, above n 16, 76–7.

(37) See John Gerard Ruggie, ‘Territoriality and Beyond: Problematizing Modernity in International Relations’ (1993) 47 International Organization 139, 157.

(38) Geoffrey Butler and Simon Maccoby, The Development of International Law (London: Longmans Green & Co, 1928) 69.

(39) Grotius, above n 7, II, i, § 2; Ibid II, xx.

(40) See Eppstein, above n 13, 97–123.

(41) Grotius, above n 7, II, xx, § 40(4), citing Victoria, Vásquez, Azor, and Molina. See also Suárez, above n 23, § 5(5) [trans 825–6].

(42) Grotius, above n 7, II, xx, §; 40(3): ‘Says Seneca: “If a man does not attack my country, but yet is a heavy burden to his own, and although separated from my people he afflicts his own, such debasement of mind nevertheless cuts him off from us.” [On Benefits, VII, xix, 9.] Augustine says: “They think that they should decree the commission of crimes of such sort that if any state upon earth should decree them, or had decreed them, it would deserve to be overthrown by a decree of the human race.”’ [City of God, V, i.]See also Ibid II, xx, § 40(4) (citing Innocent, On Deer. III, xxxiv, 8).

(43) Ibid II, xx, § 40(1).

(44) Ibid § 40(3).

(45) Ibid § 40(1).

(46) Ibid § 3(1).

(47) He reconciled this position with the scholastics by way of an hypothesis: ‘What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him.’ ibid Prolegomena, § 11. See Nussbaum, above n 24, 108. Cf Gentili’s rejection of the dogmatic procedure of the theologians: Gentili, above n 15, I, xii [trans 57] (‘Let the theologians keep silence about a matter which is outside of their province’). Gentili was writing in Oxford, having fled Italy in 1579 before the Holy Inquisition which sentenced him and his father in absentia to penal servitude for life after they converted to Protestantism. In 1603 his works were placed on the Index. Grotius’ De jure belli ac pacis was also placed on the Index in 1626, with the insignificant qualification ‘donee corrigatur [until amended]’. It remained so until 1899: Nussbaum, above n 24, 94–5,114. Grotius’ philosophical heritage and his relationship to natural law in particular are now the subject of some debate. See, eg, Benedict Kingsbury, ‘A Grotian Tradition of Theory and Practice? Grotius, Law, and Moral Skepticism in the Thought of Hedley Bull’ (1997) 3 Quinnipiac Law Review 3; Knud Haakonssen (ed), Grotius, Pufendorf and Modern Natural Law (Aldershot: Dartmouth, 1999).

(48) See, eg, Suárez, above n 23, § 4(6) [trans 818–19], citing Romans 13: 4.

(49) Hugo Grotius, De jure praedae commentarius ([1604] Classics of International Law; Williams trans; Oxford: Clarendon Press, 1950) VIII [trans 92].

(50) See below Sect 2.1.

(51) Grotius, above n 7, II, xxv, § 1(1).

(52) Hubert Languet, Vindicae contra tyrannos (1579; Sumpt. HæLazari Zetzneri, 1622), in Stowell, above n 4, 55.

(53) See Eppstein, above n 13, 59. In lectures first delivered in 1532, Franciscus de Victoria acknowledged a right on the part of the Spanish to wage war against the indigenous Americans if they prevented the Spaniards from freely preaching the Gospel: , above n 10, De Indis, Sect 3, § 12. Similarly, Suárez asserted a right of war in defence of the innocent but restricted it to Christian princes defending subjects from an unbelieving sovereign: Suárez, above n 23, § 5(7) [trans 826–7].

(54) St Ambrose, De Officiis, I, xxxvi, § 179. Cf Gratian, Decretals, Pars Secunda, Causa XXIII, Quæstio III, xi, in Eppstein, above n 13, 82.

(55) St Ambrose, De Officiis, I, xxvii, § 129 [fulsome is the justice that protects the frail].

(56) Gentili, above n 15, I, xvi, citing Seneca, On Benefits, IV, viii, 4.

(57) Gentili, above n 15, I, xvi.

(58) Ibid I, xvi: ‘I say that a dispute concerns the commonwealth, when the number of subjects who are aroused to war is so great and of such a character, that since they defend themselves by arms, it is necessary to make war against them. For those who have so much power share as it were in the sovereignty; they are public characters and on an equality with the sovereign … And, in fact, if subjects are treated cruelly and unjustly, this principle of defending them is approved by others as well’ [trans 75].

(59) Grotius, above n 7, II, xxv, § 7(1): ‘[I]f danger is evident, it is certain that a man is not so bound, for he may prefer his own life and interests to those of others. In this sense I think we must interpret the words of Cicero: “He who does not prevent or oppose a wrong, if he can [si potest], is as much at fault as if he should desert his parents, or country, or associates.” Cicero, On Duties, I, vii, 23.] The word “can” [potest] we may understand as “with advantage to himself [cum suo commotio]”.’

Whewell translates the last phrase as ‘with convenience to himself’.

(60) Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal EssaysWalter Wheeler Cook (ed); New Haven: Yale University Press, 1923) 27–64. Briefly, Hohfeld distinguishes two separate uses of the word ‘right’: (i) a claim-right, which has an enforceable duty as its correlative, and (ii) a privilege, which corresponds not to a duty but to a no-right (ie, the lack of a claim-right that something not be done).

(61) Grotius, above n 7, II, xxv, § 8(1): ‘This too is a matter of controversy, whether there maybe a just cause for undertaking war on behalf of the subjects of another ruler, in order to protect them from wrong at his hands. Now it is certain that, from the time when political associations were formed, each of their rulers has sought to assert some particular right over his own subjects.’

(62) ibid § 8(2). Whewell translates the passage as follows: ‘But the case is different if the wrong be manifest. If a tyrant like Busiris, Phalaris, Diomede of Thrace, practises atrocities towards his subjects, which no just man can approve, the right of human social connexion is not cut off in such a case.’

Hersch Lauterpacht refers to this as the ‘first authoritative statement of the principle of humanitarian intervention’: Hersch Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 23 British YBIL 1, 46.

(63) Grotius, above n 7, II, xxv, § 8(3); ibid I, iv, §§ 1–7. It is this aspect of his work that drew the ire of Rousseau in The Social Contract (1762). Note, however, that Grotius qualifies this general rule to the extent that Hersch Lauterpacht argues that the major proposition may be considered all but theoretical. Indeed, these exceptions were cited as justification for the resistance to and deposition of James II: Lauterpacht, above n 62, 45.

(64) Grotius, above n 7, II, xxv, § 8(3)–(4).

(65) Samuel Pufendorf, De jure naturae et gentium libri octo ([1688] Classics of International Law; Oxford: Clarendon Press, 1934) VIII, vi, § 14.

(66) Pufendorf, De jure naturae et gentium llbri octo VII, viii, §§ 1–7.

(67) This was true of the early positivists: Richard Zouche, Juris et judicii facialis, sive, juris inter gentes, et quaestionum de eodem explicatio ([1650] Classics of International Law; Brierly trans; Washington, DC: Carnegie Institute, 1911) (no mention); Samuel Rachel, De jure naturae et gentium dissertationes ([1676] Washington, DC: Carnegie Institution, 1916) Second Dissertation, § xl [trans vol 2, 183] (requiring some hurt done wrongfully to one of the acting state’s interests); Textor, above n 33, ch xvii [trans vol 2, 167] (requiring a grievance suffered by the party making the war); Cornelius van Bynkershoek, Quaestionum juris publici libri duo ([1737] Oxford: Clarendon Press, 1930) vol 1, ch 1 [trans vol 2, 15] (defining war as ‘a contest of independent persons carried on by force or fraud for the sake of asserting their rights’).

(68) Thomas Hobbes, De Cive ([1647] Oxford: Clarendon Press, 1983) ch viii, § 7. Cf Thomas Hobbes, Leviathan ([1651] London: Dent, 1914) II, xviii. Cf Jean Bodin, The Six Books of a Commonweale ([1577] A facsimile reprint of the English translation of 1606, corrected and supplemented in the light of a new comparison with the French and Latin texts; McRae trans; Cambridge, MA: Harvard University Press, 1962).

(69) Hobbes, Leviathan, above n 68, II, xxx. Balthazar Ayala (1548–84) had earlier adopted a similar position that none but God could sit in judgment of the sovereign: Ayala, above n 25, I, ii, §§ 25–6, 33.

(70) See below Sect 2.2.

(71) Charles Calvo, Le droit international: théorique et pratiqueArthur Rousseau (ed); 5th edn; Paris: Librairie nouvelle de Droit et de Jurisprudence, 1896) vol 1, 51; Otfried Nippold, ‘Introduction’, in Christian Wolff, Jus gentium methodo seientifica pertraetatum ([1764] Classics of International Law; Drake trans; Oxford:Clarendon Press, 1934) xxxviii.

(72) See Grotius, above n 7, II, xx, § 40.

(73) Wolff, above n 71, § 169. The first writer to raise such objections to Grotius’ work appears to be Heineccius, a contemporary of Bynkershoek, who argues that the right to inflict punishment exists only as between a superior and his subjects, and therefore not among nations which are equal: ‘punitio nimirum scelerum, eo minus videatur admittenda, quo magis constat, parem a pari, adeoque gentem a gente puniri non posse.’ Johann Gottlieb Heineccius, Element a juris naturae et gentium (Turnbull trans; London: J Noon, 1741) § 195, quoted in von Elbe, above n 13, 681 n 126.

(74) Wolff, above n 71, § 636.

(75) Ibid § 637. He adds: ‘God himself is capable of punishing a wrong done to himself, nor for that does he need human aid.’

(76) Ibid §§ 256–8.

(78) See, eg, Grotius, above n 7, II, xx, § 11, referring to nations ‘which treat their parents with inhumanity like the Sogdians, which eat human flesh as the ancient Gauls, &c.’.

(79) Vattel, above n 23, II, i, § 7.

(80) Ibid I, xiii, § 169.

(81) ibid II, i, § 7. Vattel is particularly critical of wars waged in the name of ‘true religion’, both on the part of ‘those ambitious Europeans’ who subdued indigenous Americans on the pretext of a civilizing mission, and on that of Islamic states claiming to avenge wrongs done to their god: ibid. Grotius does appear to have been aware of the danger that the right might be abused, for he observes that ‘Perhaps Mithridates was not very wrong when he said of the Romans, that they did not really attack the vices of kings, but their power and their majesty’: Grotius, above n 7, II, xx, § 43(3).

(82) Vattel, above n 23, II, iv, § 55.

(83) VattelIbid § 56.

(84) See above nn 63–4 and accompanying text.

(85) Vattel, above n 23, II, iv, § 56.

(86) Cf Winfield, above n 1, 137.

(87) Vattel, above n 23, I, iii, § 37.

(88) Ibid III, iii, § 49.

(89) See Winfield, above n 1, 133.

(90) Vattel, above n 23, II, iv, § 54.

(91) Ibid § 55.

(92) ibid § 56. Vattel cites the example of the assistance granted by the United Provinces to England under the reign of James II.

(93) ibid Introduction, § 21.

(94) Immanuel Kant, ‘Toward Perpetual Peace’, in Kant, above n 20, 8:346 [trans 319]. Hershey, above n 3, 153 n 18, cites this as the first enunciation of the principle of non-intervention. It must, however, be read in the context of his earlier provision that the constitution of each state was to be republican: Kant, ‘Toward Perpetual Peace’, 8:350 [trans 352]. In addition, Kant was building on various other plans for world peace developed through the eighteenth century, notably Rousseau’s A Project for Perpetual Peace (1761), which in turn revived Charles Irénée, Castel de Saint-Pierre’sProjet pour rentire la paix perpétuelle en Europe (1713): see Hemleben, above n 14, 56–95.

(95) Kant, ‘Toward Perpetual Peace’, 8:346 [trans 319–20]. See also Richard B Lillich, ‘Kant and the Current Debate over Humanitarian Intervention’ (1997) 6 Journal of Transnational Law and Policy 397 (arguing that Kant’s republican convictions might have led him to accept unilateral humanitarian intervention in undemocratic states).

(96) The questionable status of intervention as a term of art in English is captured in an exchange in the British Parliament in 1832. During a debate on British relations with Germany, the then Foreign Secretary Palmerston stated that Britain did not follow a policy of non-interference in regard to the internal politics of other states, though this interference would be by words, and not arms. In response to a question about non-intervention, he replied: ‘I will not talk of non-intervention, for it is not an English word’: Jasper Ridley, Lord Palmerston (London: Constable, 1971) 156. The OED includes seventeenth-century usages of intervention’, and a fifteenth-century reference to ‘interuencioun’.

(97) Fernando R Tesόn, Humanitarian Intervention: An Inquiry into Law and Morality (2nd edn; Dobbs Ferry, NY: Transnational Publishers, 1997) 56; see also ibid 6–17.

(98) G W F Hegel, Hegel′s Philosophy of Right ([1821] Knox trans; Oxford: Oxford University Press, 1967) §§ 257–8, pp 155–6, cited in Tesόn, above n 97, 59. See the critique in Karl Popper, The Open Society and Its Enemies (London: Routledge & Kegan Paul, 1966) ch 12.

(99) Tesόn, above n 97, 55.

(100) Ibid 58.

(101) Ibid 59.

(102) Ibid 58 (emphasis in original).

(103) See above nn 63–4 and accompanying text.

(104) Vattel does, however, discuss the right of a citizen to leave his country, and enumerates at length the cases in which this may be exercised: Vattel, above n 23, I, xix, §§ 220–3.

(105) See above nn 82–5 and accompanying text.

(106) Tesόn, above n 97, 59–60.

(107) Ibid 177.

(108) See Lauterpacht, above n 62, 26–30 (discussing Grotius’ identification of the individual and the state). Note that Hegel distinguishes the state from private persons due to the depth of their autonomy: ‘so the relation between them differs from a moral relation and a relation involving private rights…. Now a relation between states ought also to be right in principle, but in mundane affairs a principle ought also to have power. Now since there is no power in existence which decides in face of the state what is right in principle and actualizes this decision, it follows that so far as international relations are concerned we can never get beyond an “ought”. The relation between states is a relation between autonomous entities which make mutual stipulations but which at the same time are superior to these stipulations.’ Hegel, above n 98, Additions, § 191, p 297. See further Simon Chesterman, ‘Law, Subject and Subjectivity in International Relations: International Law and the Postcolony’ (1996) 20 Melbourne University Law Review 979.

(109) France, Constitution of 1793, arts 118–19, 5 Duvergier 353, 357 (never entered into force) [‘118. The French people declares itself the friend and natural ally of free peoples. 119. It does not interfere in the governments of other nations, it does not allow other nations to interfere in its own.’]. Cf Convention nationale, résolution du 13 avril 1793: 5 Duvergier 248. See also Robert Redslob, ‘La doctrine idéaliste du droit des gens: proclamée par la révolution Française et par le philosophe Emmanuel Kant’ (1921) 28 RGDIP 441, 443–6.

(110) Davies, above n 27, 701, 715–48. The Constitution was ratified by the primary assemblies on 14 and 21 July 1793, but on 10 Oct 1793 its application was postponed until the conclusion of peace: Jean Brissaud, A History of French Public Law (Garner trans; London: John Murray, 1915)554.

(111) Treaty of Alliance and Friendship, Great Britain–Austria, signed at Paris, 20 Nov 1815, 3 State Papers 273, 277, art 3. (Identical treaties were signed at the same time with other powers.) See Henry Wheaton, Elements of International Law ([1866] Henry Dana Jr (ed); Classics of International Law; 8th edn; Oxford: Clarendon Press, 1936) 79. At the same time, a more ambitious ‘Holy Alliance’ was announced by Tsar Alexander I of Russia to provide a spiritual basis for the preservation of peace: Hemleben, above n 14, 97.

(112) Hemleben, above n 14, 102.

(113) Ibid 103.

(114) Ibid.

(115) John Bassett Moore, ‘Some Essentials of League for Peace’, in Stephen Pierce Duggan (ed), The League of Nations: The Principle and the Practice (Boston: Atlantic Monthly Press, 1919)68.

(116) Annual Register (1823) LXV, 114, quoted in J H W Verzijl, International Law in Historical Perspective (Leyden: A W Sijthoff, 1968) vol 1, 240.

(117) Moore, above n 11, vol 6, 389–92 (Canning–Rush negotiations), 399–401 (US Cabinet deliberations). See also Davies, above n 27, 762–3.

(118) The Monroe Doctrine amounted to a highly qualified form of non-intervention: it disclaimed any right on the part of the United States to interfere with the existing European colonies and dependencies, but opposed any attempt to extend that system, or ‘any interposition for the purposes of oppressing …, or controlling in any other manner’ the destiny of those states whose independence the United States had recognized: President Monroe, Annual Message, 2 Dec 1823, in Moore, above n 11, vol 6, 401–3.

(119) See Winfield, above n 1, 134–5.

(120) Robert Phillimore, Commentaries upon International Law (3rd edn; London: Butterworths, 1879) vol 1, 599.

(121) See, eg, Winfield, above n 1, 141.

(122) See above Sect 2.1.

(123) Ian Brownlie, above n 5, 45.

(124) William Edward Hall, International Law (1st edn; Oxford: Clarendon Press, 1880) 247 n 1; William Edward Hall, Treatise on International Law (2nd edn; Oxford: Clarendon Press, 1884) 266 n 1.

(125) H W Halleck, International Law; or, Rules Regulating the Intercourse of States in Peace and War (1st edn; San Francisco: H Bancroft & Co, 1961) 87; Hall (2nd edn), above n 124, 264.

(126) Edward S Creasy, First Platform of International Law (London: John van Voorst, 1876) 300; Robert Phillimore, Commentaries upon International Law (London: Benning & Co, 1954) vol 1, 442; Oppenheim, above n 3, vol 1, 186.

(127) Moore, above n 11, vol 6, 3.

(128) See Antoine Rougier, ‘La théorie de l’intervention d’humanité’ (1910) 17 RGDIP 468. See also the discussion of Vattel in Sect 2.1.

(129) See below Sect 3.3.

(130) Henry Wheaton, Elements of International Law (1st edn; Philadelphia: Carey Lea & Blanchard, 1836) II, i, § 10, p 91. See Richard B Lillich (ed), Humanitarian Intervention and the United Nations (Charlottesville: University Press of Virginia, 1973) 25 (Lillich).

(131) See below Sects 3.3 and 3.4.

(132) Manouchehr Ganji, International Protection of Human Rights (Paris: Minard, 1962) 26–9. Great Britain acted as an intermediary, prompting Reisman to make the unusual observation that ‘adroit and creative diplomacy may achieve the objectives of forcible humanitarian intervention without necessary resort to armed intervention in the territory in question’ while still including it as an example of such intervention: W Michael Reisman and Myres S McDougal, ‘Humanitarian Intervention to Protect the Ibos’, in Lillich, above n 130, 167, 181. See R B Mowat, A History of European Diplomacy, 1815–1914 (London: Edward Arnold, 1923) 274 ff; Jean-Pierre L Fonteyne, ‘The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the UN Charter’ (1974) 4 California Western ILJ 203, 210–11.

(133) Contra Ganji, above n 132, 33–7; Reisman, and McDougal, above n 132, 183; Fonteyne, above n 132, 212–13.

(134) Myres S McDougal, Harold D Lasswell, and Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (New Haven and London: Yale University Press, 1980) 240. See, eg, President Theodore Roosevelt, Annual Message, 6 Dec 1904, in Moore, above n 11, vol 6, 31–2.

(135) See documents collected in Louis B Sohn, and Thomas Buergenthal, International Protection of Human Rights (Indianapolis: Bobbs-Merrill, 1973) 181–94; Charles G Fenwick, ‘Intervention: Individual and Collective’ (1945) 39 AJIL 645, 650–1; Charles Hyde, International Law (2nd edn; Boston: Little Brown, 1947) vol 1, 250; Robert H Ferrell, American Diplomacy: A History (3rd edn; New York: Norton, 1975) 735–6.

(136) G P Gooch, and Harold William, Vazeille Temperly (eds), British Documents on the Origins of the War 1898–1914 (London: HMSO, 1926) vol 10, part i, nos 429, 494.

(137) ibid nos 492, 542, no 556; Brownlie, above n 5, 340.

(138) Stowell, above n 4, 88 n 24a.

(139) Ibid 89–120.

(140) Ibid 94–5 n 33; Brownlie, above n 5, 340.

(141) See below Sect 3.5.

(142) Mr Fish, Secretary of State, to Mr Cushing, Minister to Spain, No 266, 5 Nov 1875, in Moore, above n 11, vol 6, 85, especially 91. Cf Ann Van Wynen Thomas, and A J Thomas, Nonintervention: The Law and Its Import in the Americas (Dallas: Southern Methodist University Press, 1956)22.

(143) Stowell, above n 4, 480–1; Brownlie, above n 5, 340.

(144) The incident concerned the popular outcry that followed British Consul General Sir Roger Casement’s reports of abuses in the Belgian regime administering the Free State of the Congo. This led to a conference being called and the eventual establishment of the Belgian Congo: Lillich, above n 130, 44–6 (Goldie). The incident does not appear to be mentioned by other commentators.

(145) Moore, above n 11, vol 6, 3; Rougier, above n 128, 474–5; Stowell, above n 4, 128 31; Ganji, above n 132, 29–33; Reisman, and McDougal, above n 132, 182; Fonteyne, above n 132, 211–12; Tesόn, above n 97, 178.

(146) Stowell, above n 4, 131 n 61: ‘But even though conquest may have been the motive of the Russian Government, humanitarian intervention to prevent the inhumane treatment of the Christians was the justification of Russia’s intervention,’

(147) Theodore Salisbury Woolsey, Americas Foreign Policy (New York: Century, 1898) 74. See also Fenwick, above n 135, 650; Thomas M Franck, and Nigel S Rodley, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’ (1973) 67 AJIL 275, 283. Reisman concludes that the case does not undercut the authority of humanitarian intervention, but points to the need for structural and functional checks to avoid abuse by an intervening power: Reisman and McDougal, above n 132, 182.

(148) Contra Tesόn above n 97, 178; Fonteyne, above n 132, 213. See Douglas Dakin, The Greek Struggle in Macedonia, 1897–1913 (Thessaloniki: Institute for Balkan Studies, 1966) 446–71.

(149) Rougier, above n 128, 470; David S Bogen, ‘The Law of Humanitarian Intervention: United States Policy in Cuba (1898) and in the Dominican Republic (1965)’ (1966) 7 Harvard International Law Club Journal 296, 299.

(150) See Moore, above n 11, vol 5, 476–93.

(151) Sir N Henderson to Viscount Halifax, 15 Mar 1939, in E L Woodward, and Rohan Butler (eds), Documents on British Foreign Policy 1919–1939 (London: HMSO, 1949) Series Three, iv, no 259, 257; ibid no 257, 256. See also Ian Brownlie, ‘Humanitarian Intervention’, in John N Moore (ed), Law and Civil War in the Modern World (Baltimore, Maryland: Johns Hopkins University Press, 1974) 217, 221; Thomas, and Thomas, above n 142, 374.

(152) Brownlie, above n 5, 340.

(153) Tesón, above n 97, 31 n 24. Franck, and Rodley, above n 147, 284.

(154) Franck, and Rodley, above n 147, 284. See Philip Marshall Brown, ‘Japanese Interpretation of the Kellogg Pact’ (1933) 27 AJIL 100.

(155) Tesόn, above n 97, 178–9.

(156) Michael Walzer, ‘World War II: Why Was This War Different?’ (1971) 1 Philosophy and Public Affairs 3.

(157) Tesόn, above n 97, 178.

(158) Tesόn himself does not rely on the example to justify his broader thesis, merely noting it as ‘the paradigm of a just war’: ibid 178–9.

(159) William Vernon Harcourt, Letters by Historicus on Some Questions of International Law: Reprinted from ‘The Times’ with Considerable Additions (London: Macmillan, 1863) 6.

(160) See, eg, Stowell, above n 4, 126–7, 489; Fenwick, above n 135, 650; Fonteyne, above n 132, 208; Anthony D’Amato, ‘The Invasion of Panama was a Lawful Response to Tyranny’ (1990) 84 AJIL 516s, 519.

(161) Harcourt, above n 159, 6.

(162) Stowell, above n 4, 126.

(163) See, eg, Wheaton, above n 130, II, i, § 10, p 91; James Kent, Kent’s Commentary on International LawJ T Abdy (ed); 1st edn; Cambridge: Deighton Bell & Co, 1866) 55; Augustus Granville Stapleton, Intervention and Non-Intervention: The Foreign Policy of Great Britain from 1790 to 1865 (London: J Murray, 1866) 32; Sheldon Amos, Lectures on International Law (London: Stevens and Sons, 1874) 40; Theodore D Woolsey, Introduction to the Study of International Law (4th edn; London: Sampson, Low, Marston, Low & Searle, 1875) 45; Hermann Strauch, Zur Interventionslehre (1879) 277, cited in Stowell, above n 4, 127 n 59; Hersch Lauterpacht, International Law and Human Rights (London: Stevens & Sons, 1950) 120; Ganji, above n 132, 22–4. See now Lassa Francis Lawrence Oppenheim, International Law (Robert Jennings, and Arthur Watts (eds); 9th edn; London: Longman, 1996) vol 1, 442 n 18: ‘Thus Great Britain, France and Russia intervened in 1827 in the struggle between revolutionary Greece and Turkey when public opinion reacted with horror to the cruelties committed during the struggle.’ On the US attitude towards the war, see Moore, above n 11, vol 6, 33–4.

(164) This was the formalization of a protocol signed at Petersburg, 4 Apr 1826, by the Russian Chancellor (Count Nesselrode), the Russian Ambassador to London (Prince Lieven), and the Duke of Wellington. This was duly communicated to Paris, Vienna, and Berlin but gained no support except in Paris: Mowat, above n 132, 48–9.

(165) Treaty Between Great Britain, France, and Russia, for the Pacification of Greece, signed at London, 6 July 1827, in Edward Hertslet, The Map of Europe by Treaty (London: Butterworths, 1875) vol 1, 769–70.

(166) ibid preamble para 1; John Westlake, International Law (2nd edn; Cambridge: Cambridge University Press, 1910) 319 n 3.

(167) As the intervention took place within what was then Turkish territory, it is not an instance of intervention by consent.

(168) Treaty for the Pacification of Greece, above n 165, preamble para 2.

(169) Ibid. See Kent, above n 163, 57.

(170) Treaty for the Pacification of Greece, above n 165, art 1. This was qualified by an obligation on the part of Greece to pay a tribute to the Sultan: ibid art 1, 3.

(171) The Times, 12 July 1827. See C W Crawley, The Question of Greek Independence: A Study of British Policy in the Near East, 1821–1833 (Cambridge: Cambridge University Press, 1930) 79.

(172) Treaty for the Pacification of Greece, above n 165, Additional Article, § 1.

(173) ibid Additional Article, § 2.

(174) See generally C M Woodhouse, The Battle of Navarino (London: Hodder & Stonghton, 1965).

(175) Mowat, above n 132, 50.

(176) Ibid 51.

(177) Declaration of Accession of the Ottoman Porte to the Treaty of 6 July 1827 for the Pacification of Greece, signed at Constantinople, 9 Sept 1829, in Hertslet, above n 165, vol 2, 812.

(178) Treaty of Peace Between Russia and Turkey, signed at Adrianople, 14 Sept 1829, art 10, in Hertslet, above n 165, vol 2, 813, 820–1.

(179) Brownlie, above n 151, 220.

(180) Brownlie, above n 5, 339; Brownlie, above n 151, 220–1.

(181) Brownlie, above n 5, 339. Cf Halleck, above n 125, 340.

(182) Brownlie, above n 5, 339, citing HAL Fisher, A History of Europe (rev edn; London: Eyre and Spottiswoode, 1943) vol 1, 881.

(183) Brownlie, above n 5, 338.

(184) Phillips notes that the 1826 protocol (above n 164) put the Russian Czar ‘in a somewhat awkward position’, as he had sent an ultimatum to the Porte only a few days earlier, demanding the immediate dispatch of plenipotentiaries to discuss Russian grievances: W Alison Phillips, The War of Greek Independence (London: Smith Elder & Co, 1897) 246. See also H W Halleck, Halleck’s International Law, Sherston Baker (ed); 4th edn; London: Kegan Paul Trench Trubner & Co, 1908) 564; Crawley, above n 171, 77.

(185) Crawley, above n 171, 77.

(186) ibid 13–16; Woodhouse, above n 174, 23–5.

(187) Mowat, above n 132, 47.

(188) Woodhouse, above n 174, 35–6.

(189) Crawley, above n 171, 49, 54.

(190) Woodhouse, above n 174, 37; Crawley, above n 171, 66, 68.

(191) Woodhouse, above n 174, 44.

(192) See, eg, Charles de Visscher, Theory and Reality in Public International Law (Corbett trans; rev edn; Princeton, NJ: Princeton University Press, 1968) 126.

(193) Protocols of Conferences Between Great Britain, France, Prussia, Russia, and Turkey, Relative to the Pacification of Syria, signed at Paris, 3 Aug 1860, in Hertslet, above n 165, vol 2, 1451.

(194) Convention Between Great Britain, Austria, France, Prussia, Russia, and Turkey, respecting measures to be taken for the Pacification of Syria, signed at Paris, 5 Sept 1860, in Hertslet, above n 165, vol 2, 1455, preamble para 1.

(195) Ibid art 1

(196) Ibid art 2.

(197) Ibid art 5.

(198) Convention Between Great Britain, Austria, France, Prussia, Russia, and Turkey, prolonging the European Occupation of Syria, signed at Paris, 19 Mar 1861, in Hertslet, above n 165, vol 2, 1469.

(199) See Istvan Pogany, ‘Humanitarian Intervention in International Law: The French Intervention in Syria Re-Examined’ (1986) 35 ICLQ 182, 186 and sources there cited.

(200) Brownlie, above n 5, 340.

(201) See, eg, Rougier, above n 128, 525; Bernhardt, above n 34, vol 2, 927. Cf Stowell, above n 4, 63, and sources there cited.

(202) Pogany, above n 199, 185–8.

(203) See Franck, and Rodley, above n 147, 282, citing the Minute of the British Commissioner to Syria, who concluded that ‘the original provocation proceeded from the Christians, who had been for months beforehand preparing an onslaught on the Druses, which their leaders confidently expected would terminate, if not in the extermination, at all events in the expulsion, of that race.’ Minute of British Commissioner on the Judgments proposed to be passed on the Turkish Officials and Druse Chiefs by the Extraordinary Tribunal of Beyrout, in Sohn and Buergenthal, above n 135, 165.

(204) Thomas, and Thomas, above n 142, 22; Pogany, above n 199, 188–90 (though this appears at odds with his argument that the action should be seen as French colonialism); Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (Dordrecht: Martinus Nojhoff, 1985) 90. Cf Fonteyne, above n 132, 208–9.

(205) Stowell, above n 4, 66; Ganji, above n 132, 26.

(206) Protocol of 3 Aug 1860, above n 193, § 2.

(207) Quoted in Ferrell, above n 135, 347.

(208) Stowell, above n 4, 481. One American commentator states that ‘[o]ne would search in vain the records of the world’s history to find a more striking example of a war undertaken by any nation from motives more singularly humane and free from selfish interests and purposes’: Oscar S Straus, ‘Humanitarian Diplomacy of the United States’ (1912) 6 ASIL Proc 45, 50. It is also cited by Reisman, and McDougal, above n 132, 182–3.

(209) See, eg, Fonteyne, above n 132, 206.

(210) Ferrell, above n 135, 347 8, 367; Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (2nd edn; New York: Basic Books, 1992) 103–4.

(211) Ferrell, above n 135, 353. In the search for sensational coverage, William Randolph Hearst dispatched an artist to Cuba for battle sketches. Told that there was no war after all, he is famously alleged to have wired the artist in reply: ‘You furnish the pictures; I’ll furnish the war’: H Wayne Morgan, William McKinley and His America (Syracuse, NY: Syracuse University Press, 1963)330.

(212) Ferrell, above n 135, 350.

(213) Ibid 353.

(214) Moore, above n 11, vol 6, 181–4 (report of US Board of Inquiry); Ibid 223–4 (report of Senate Committee on Foreign Relations). But see Richard A Falk, Legal Order in a Violent World (Princeton, NJ: Princeton University Press, 1968) 194–5.

(215) President McKinley, Special Message to Congress, 11 Apr 1898, in Moore, above n 11, vol 6, 211, 219–20.

(216) 30 Stat 738 (1898), in Moore, above n 11, vol 6, 226.

(217) Ibid.

(218) Brownlie, above n 5, 46.

(219) , above n 132, 206.

(220) Woolsey, above n 147, 76.

(221) Sohn, and Buergenthal, above n 135, 180.

(222) Derek W Bowett, Self-Defence in International Law (Manchester: Manchester University Press, 1958)97.

(223) John Bassett Moore, The Principles of American Diplomacy (New York: Harper and Brothers, 1918) 208, citing Alphone Rivier.

(224) Walzer, above n 210, 104.

(225) Brownlie, above n 5, 338.

(226) See above nn 5–11 and accompanying text.

(227) See, eg, Brownlie, above n 5, 338; Richard B Lillich, ‘Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives’, in Moore, above n 151, 229, 233.

(228) Rougier, above n 128, 472.

(229) , above n 130, II, i, § 10, p 91. See above n 130.

(230) Woolsey, above n 163, § 42, p 32.

(231) E R N Arntz, letter quoted in G Rolin-Jaequemyns, ‘Note sur la théorie du droit d’inter-vention’ (1875) 8 Revue du droit international et de la legislation comparée 673, 675.

(232) Edwin Montefiore Borchard, The Diplomatic Protection of Citizens Abroad (New York: Banks Law, 1928). See also W E Lingelbach, ‘The Doctrine and Practice of Intervention in Europe’ (1900) 16 Annals of the American Academy of Political and Social Science 1, 25.

(233) President Roosevelt, Annual Message, 6 December 1904, in Moore, above n 11, vol 6, 596.

(234) See, eg, A T Mahan, Some Neglected Aspects of War (Boston: Little Brown, 1907) 107.

(235) Edwin DeWitt Dickinson, The Equality of States in International Law (Cambridge, MA: Harvard University Press, 1920) 262–3; Georgee Frederic de Martens, Traite de droit international (Léo trans, 1883) vol 1, 398, quoted in Fonteyne, above n 132, 219:, ‘Vis-à-vis non civilized nations … intervention by the civilized powers is in principle legitimate, when the Christian population of those countries is exposed to persecutions or massacres. In those circumstances, it is justified by common religious interests and humanitarian considerations…. These motives are not applicable to relations between civilized powers.’

(236) See above nn 73–85.

(237) See above Sect 3.

(238) See above Sect 1.2.

(239) Johann Caspar Bluntschli, Le droit international codifié; (Paris: Librairie de Guillaumin, 1870) § 478.

(240) See Ch 2.

(241) A G Heffter, Le droit international public de I’Europe ([1844] Bergson trans; Berlin: E H Schroeder, 1857) 105; Halleck, above n 125, 340.

(242) William Oke Manning, Commentaries on the Law of NationsSheldon Amos (ed); London: Sweet, 1875) 97; Amos, above n 163, 39–41.

(243) See above n 168.

(244) See above n 195.

(245) Bluntschli, above n 239, § 478 (‘un danger general’).

(246) Heffter, above n 241, 105 (‘inquietude prolongé’).

(247) Manning, above n 242, 97.

(248) , above n 126, § 316, pp 303–4.

(249) Nassau William Senior, ′Book Review: Wheaton’s International Law’ (1843) 156 Edinburgh Review 334, 365. Cf Hobbes, above n 68.

(250) See, eg, Richard Wildman, Institutes of International Law (London: William Benning, 1849) 62–3; James Reddie, Inquiries in International Law: Public and Private (2nd edn; Edinburgh: William Blackwood and Sons, 1851) 389–404; Montague Bernard, On the Principle of Non-intervention (Oxford: J H & J Parker, 1860) 16–20; Halleck, above n 125, 340; Brierly, above n 6, 156–7; Thomas Erskine Holland, Lectures on International Law (London: Sweet & Maxwell, 1933) 108–10.

(251) See above Sect 2.2.

(252) See above n 81 and accompanying text.

(253) F E Smith, International Law (J Wylie (ed); 4th edn; London: J M Dent, 1911) 63–4. Cf Thomas Alfred Walker, The Science of International Law (London: Clay and Sons, 1893) 151–2: ‘Englishmen, who shelter the Nihilist, and cry loud and long on the horrors of Siberian prisons and the anti-Jewish zeal of the Muscovite, require to remember that, however conscious they may be of their philanthropic motives, the world is apt to be suspicious. There are philanthropists beyond the bounds of England.’ See also George Grafton Wilson, Handbook of International Law (2nd edn; St Paul, Minn: West, 1927) 57; A Pearce Higgins, Studies in International Law and Relations (Cambridge: Cambridge University Press, 1928) 27.

(254) Phillimore, above n 126, vol 1, 442. But see his discussion of intervention on religious grounds: ibid 470 ff.

(255) Amos, above n 163, 40; Lingelbach, above n 232, 25; Rougier, above n 128, 478. Cf Senior, above n 249, 366.

(256) Harcourt, above n 159, 14.

(257) See, eg, John Norton Pomeroy, Lecture on International Law in Time of PeaceTheodore Salisbury Woolsey (ed); Cambridge, MA: Riverside Press, 1886) 244–5; T J Lawrence, The Principles of International Law (London: Macmillan, 1895) 132 (‘interventions on the ground of humanity have under very exceptional circumstances a moral, though not a legal, justification’); Amos S Hershey, ‘The Calvo and Drago Doctrines’ (1907) 1 AJIL 26, 42; Frederick Charles Hicks, ‘The Equality of States and the Hague Conferences’ (1908) 2 AJIL 530, 541; Foulke, above n 4, vol 2, 66; T J Lawrence, A Handbook of Public International Law (Percy H Winfield (ed); 11th edn; London: Macmillan, 1938) 46.

(258) Stowell, above n 4, 469.

(259) Herman Rodecker von Rotteck, Das Recht der Einmischung in die inneren Angelegenheiten eines fremden Staates vom vernunftrechtlichen, historischen and politischen Standpunkte erörtert (1845), in Stowell, above n 4, 525.

(260) Hall (2nd edn), above n 124, 265.

(261) Ibid 266.

(262) Ibid.

(263) T J Lawrence, The Principles of International Law (6th edn; Boston: D C Heath, 1915) 129.

(264) Brierly, above n 6, 156. Cf Westlake, above n 166, vol 1, 320: ‘Laws are made for men and not creatures of the imagination, and they must not create or tolerate for them situations which are beyond the endurance, we will not say of average human nature, since laws may fairly expect to raise the standard by their operation, but of the best human nature that at the time and place they can hope to meet with.’

(265) Oppenheim, above n 3, vol 1, 186. This is misrepresented somewhat in Tesόn, above n 97, 60.

(266) Oppenheim, above n 3, vol 1, 186–7.

(267) See above n 261.

(268) Fiore prohibited unilateral intervention, but held that there was nevertheless an obligation for collective intervention when its object is to protect or restore the authority of ‘common’ law violated by one or more states: Pasquale Fiore, International Law Codified and Its Legal Sanction (Borchard trans; 5th edn; New York: Baker Voorhis & Co, 1918) 265, 268–72. It is not clear that this would extend beyond the violation of conventional and customary law obligations, however: ibid 270–1.

(269) Hershey notes that non-intervention is ‘a fundamental principle of International Law’, but that that body of law must rest upon international practice as well as such principles: Hershey, above n 3, 148. He thus acknowledges that ‘[f]orcible interference in the internal affairs of another State has been justified on grounds of humanity in extreme cases like those of Greece, Bulgaria, and Cuba, where great evils existed, great crimes were being perpetrated, or where there was a danger of race extermination’: ibid 151. To avoid the danger of abuse, he recommends that any such intervention should be collective in character, or if one state intervenes it should do so only as the agent or mandatory of the other: ibid.

(270) Wheaton, above n 111, 99 n 38; Butler, and Maccoby, above n 38, 442–51; Davies, above n 27, 870.

(271) Harcourt, above n 159, 41.

(272) Lassa Francis Lawrence Oppenheim, International LawHersch Lauterpacht (ed); 8th edn; London: Longmans, 1955) 312.

(273) Covenant of the League of Nations, preamble.

(274) Ibid art 12.

(275) Sean D Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order (Philadelphia: University of Pennsylvania Press, 1996) 59.

(276) Covenant of the League of Nations, art 15.

(277) Treaty Providing for the Renunciation of War as an Instrument of National Policy, 27 Aug 1928, signed at Paris, in force 1929, 94 LNTS 57, preamble.

(278) Ibid art 1.

(279) See generally Brownlie, above n 5, 74–92, 235–47. Thus Japan’s alleged vital interests in Manchuria were rejected by the United States and the United Kingdom as excuses for its actions: Ibid 243–4.

(280) See, eg, Brownlie, above n 5, 83–9 and sources there cited.