Subproject A04 – The Collectivisation of International Security through Institutionalisation Processes in International Law
first funding stage (2014-2017)
Our research team consists of Prof. Dr. Thilo Marauhn, Dr. Reut Yael Paz, and Marie-Christin Stenzel. Their objective is to analyse the collectivisation of international security through institutionalisation processes in international law. The project participants will examine whether and under what conditions the perception and characterisation of international relations as a problem of security provides the impetus for juridification and institutionalisation processes in international law, and at the same time, triggers the collectivisation of international security. The 19 th century witnessed the start of the progressive institutionalisation of international law, starting from the creation of the first international organisations in this area (such as the Central Committee for the Navigation of the Rhine and the International Telecommunications Union) as well as the establishment of the first university professorships in international law. These developments would eventually culminate in the creation of the League of Nations and the founding of the United Nations.To what extent did (selected) actors view this process as offering a subjective gain in security? Why was a path chosen at that time toward the ever more comprehensive collectivisation of security, whereas today, we see a trend toward decollectivisation through the use of bilateral and regional forms of cooperation?
The team’s approach to these issues will involve two monographs and several papers, some of them jointly written. In her monograph titled “Remedying International Legal Theory and Practice by Military Legal Advisors”, Dr. Reut Yael Pax will explore problems related to the growth of military legal expertise in its Western and historical context.
The principal objective of Dr. Paz’s research work is to investigate the historical process that resulted in the need for legal advising services within the armed forces. In a narrower sense, Dr. Pax will study the role of military and legal advisors who are typically responsible for continuous discourse between the executive, judicial and legislative branches in peacetime and especially during times of war. Although there is no inherent contradiction in the need to combine international legal and military expertise, it remains a highly sensitive area. Ultimately, the capacity of the law to contain international violence has continued to pose a great challenge at both the national and international levels. This becomes especially difficult when a single individual is expected “to empower the force of law” and “to ascribe power to the law” in order to manage legal and military concerns in real time. Can these experts accomplish this while still remaining true to the law? Can this take place without impeding primary military objectives? This study intends to employ an historical, comparative-legal, and methodological approach to explore the extent to which the professionalization of legal/military advisors has come into being, despite constant contradictions between legal and military priorities.
To cite just one example, the so-called “Lieber Code” dates back to 1863, when President Lincoln commissioned Francis Lieber, a Prussian-born history and economics professor at South Carolina College, to draft “Instructions for the Government of Armies of the United States in the Field” (General Order 100). Other nations soon followed this same practice, a fact that highlights the historical significance of the circumstances of the Code. Furthermore, it was later codified in Article 1 of the 4 th Hague Convention (1907), and has been recognized as international customary law since 1939. The obligation to provide legal counsel to the military gained even greater importance from Article 82 of the Additional Protocol (1977) to the Geneva Convention (1949). An investigative focus on specialised legal/military advisors and the socio-economic conditions under which they operate promises to provide valuable insight into their day-to- day activities, and even more important, into the future options and roles for military and/or international legal advisors.
Concurrent with Dr. Paz’s project, Marie-Christin Stenzel’s study has a more clearly defined geographical focus. Her doctoral dissertation studied the practices developed by the Concert of Europe after the 1815 Congress of Vienna, which led the European great powers to assume responsibility for peace in Europe through new, discursive forms of diplomacy. Now, she is turning her attention to Great Britain’s role within this system. In fact, Great Britain exercised an exceptional double-faceted role among the European great powers in this system. Great Britain was more reluctant than the other great powers to justify interventions (at least within Europe), which caused considerable tension and ultimately led to the dissolution of the Concert. In addition, as a global empire and the leading maritime, trading, and industrial power in the early 19 th century, Great Britain did not rely exclusively on the state system in the European continent for its security.
Great Britain’s attitude in the 19 th century Concert of Europe raises interesting legal questions that have not yet been fully clarified: how did a world power that partially defined itself through its isolation undertake to increase its security through membership in a state system with differential yet partially obligatory rules for conflict resolution? What intentions and goals led the United Kingdom to renounce its rights to intervene, at least in relation to the European powers among themselves? What role did the British Parliament and public opinion play in this process? What were the implications for state practice when, for example, Lord Castlereagh, British foreign minister and Great Britain’s primary representative to the Congress of Vienna, declared in a secret government document in 1820, “... it is of the greatest moment, that the public sentiment should not be distracted or divided, by any unnecessary interference of the Government in events, passing abroad”. What security policy considerations were thus integrated in British state practice, particularly regarding interventions, and to what extent was such state practice influenced by the concomitant development of the doctrine of international law? Can we conclude that during and after the collapse of the Concert of Europe, for the first time, institutionalised norms of legitimacy developed regarding interventions in other states (both members of the European pentarchy and non-member countries)? If this is the case, how greatly were they influenced by Great Britain’s special position and to what degree did they bind the states? More generally: can we regard the Concert of Europe as the germinal cell for the international institutionalisation of law, or even as a precursor of the League of Nations in terms of being a system of institutionalised collective security? To explore these questions more deeply, Stenzel’s project will analyse treaties and decisions made by the Concert with British participation as well as diplomatic and academic correspondence about the legal implications of the Concert of Europe.