Peace (26 page)

Seventy years later, William Penn published
The European Diet, Parliament or Estates
, in which he proposed a similar deliberative and judicial body that would meet regularly instead of permanently to set rules of international intercourse, settle differences unresolved by ongoing diplomacy, and whose decisions could be militarily enforced by members. In 1701, the English economist Charles Davenant published
The Balance of Power
in which he formalized the notion, enacted during the peace congresses at Utrecht of 1713 that ended the Europe-wide War of the Spanish Succession by partitioning Spain's continental and colonial territories, resolving trade disputes and clearing up claims to thrones. The peace plan of another French monk, Abbé Saint-Pierre, circulated during the same congress at which he was the French secretary, and published a year later in English as
A Project for Settling an Everlasting Peace in Europe
. Written in treaty form, Saint-Pierre proposed to unite European nation-states in a representative federation based on population rather than power and strictly limit the size of national militaries. Committees would be formed to discuss and pass resolutions on political, diplomatic, financial, and military matters with the support of a senate, supplemented by reconciliation committees to resolve disputes. Although these international peace plans and practices were never fully adopted, they were among the earliest of their kinds in modern times and so formed conceptual foundations of today's multinational bodies such as the United Nations (UN) and European Union (EU).

On a connected front, concerted efforts began to be made to create a legal framework in which wars and warfare could be contained or even
eliminated as means to international peace. The groundbreaking Dutch jurist Hugo Grotius (1583–1645) put the problem this way in the prolegomena to
On the Laws of War and Peace
(1625):

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.
²⁰

To counteract this lack of restraint, Grotius proposed a “common law among nations, which is valid alike for war and in war,” voluntarily adopted but compulsory after that. He begins by reaffirming the validity of Cicero's
just war
(for self-defense, reparation and punishment) and its applicability in the age of nation-states. But Grotius' major contribution is his elaboration of this definition to include
just warfare
, that is, war conducted according to the principle of doing the least harm possible. Montesquieu echoed Grotius a century later, writing that the “law of nations is naturally founded on this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little injury as possible.”
²¹
Even with the advent of gunpowder weapons during their lifetimes, their advice went unheeded.

Only in the mid nineteenth century, as explosive, mechanized and chemical weapons became humdrum, was the idea of just warfare resuscitated. A Swiss businessman, Henri Dunant, was horrified by the devastation he accidentally witnessed at the Battle of Solferino (1859) and the total lack of care for the wounded. He roused citizens of nearby towns to their aid and requested that care be given without partisan considerations. Upon his return to Geneva, he published a book on his recent experience in which he proposed the formation of a neutral international organization to care for those wounded in war regardless of nationality, impressing a councilman who decided to implement it in the city, and so the International Red Cross was born in 1863, now one of the largest and most distinguished humanitarian groups in the world. A year later, on Dunant's initiative, the Swiss Parliament invited representatives of European nations, fourteen of which accepted, to sign an agreement geared towards the Red Cross' objectives, known as the Geneva Convention. The original Geneva Convention has been ratified several times since by nearly all the world's nations, and includes the wartime welfare and humane treatment of sailors, civilians, prisoners of war and humanitarian workers. Apogees of Grotius' and Dunant's line of peace work came at The Hague Peace Conferences of 1899 and 1907, discussed in
Chapter 9
, at which signatory nation-states agreed on rules and
regulations governing the commencement and conduct of warfare, the status of neutral nations, and the prohibition of certain types of weapons, most of which were thrown out the window in the First World War.

Whereas Grotius and Dunant tried to establish principles of war limitation on the basis of humanity's best interests and historical experience, the first professor of international law, Samuel Pufendorf (1632–94), did the same on the basis of what he argued were universally valid and applicable natural laws revealed by reason. In
On the Laws of Nature and Nations
(1674), he argued that international law regulating relations between nations, including the limitation of war, is “instituted and sanctioned by nature herself without any human intervention, and that it rests, therefore, upon that obligation of natural law, by which all men are bound, in so far as they are endowed with reason, and which does not owe its original introduction to any convention of men.”
²²
Such conventions are aids to, not replacements of, natural laws upon which he believed international peace through restricted warfare or otherwise rests. A more analytical approach to international war and peace was put forth by a German professor of philosophy, Christian Wolff (1679–1754), in his
The Law of Nations Considered Scientifically
. He divided the validation of international law into four categories, each with its benefits and drawbacks: 1.
Voluntary laws
like those of Grotius are mutually agreed to between nations, such law governing ocean travel, but can be easily disagreed to; 2.
Natural laws
like those of Pufendorf are universal, such as self-determination, but are difficult to implement: 3.
Implicit customary laws
dependent on traditions of groups of nations, such tributary and allegiance systems, which can be detrimental to certain parties; and 4.
Explicit treaty laws
between nations, but binding only on the parties involved. Parallel to these natural and scientific approaches came ones practiced by lawyers, judges and diplomats in the burgeoning fields of international relations.

The thrust of their efforts was and is that practical knowledge can be gained by the trials and errors of peace's past. In 1789, German law professor George Frederic de Martens wrote:

On the example of two nations, all the nations of Europe might, by common consent, make treaties to regulate their different rights; and, then, these general treaties would form a code, which might be called the positive law of nations.
²³

Further, “by comparing the treaties that the powers of Europe have made with one another, we discover certain principles” applicable in other circumstances.
²⁴
Thus, “the aggregate of the rights and obligations established among the nations of Europe (or the majority of them), whether by particular but uniform treaties, by tacit convention, or by custom”
forms “the general positive law of nations.” For example, the Treaty of Osnabrück (1648) required “all and each of the contracting parties to this treaty shall be held to defend and maintain all and each of the dispositions of this peace.”
²⁵
Two centuries later, the Declaration of London (1871), stated “it is an essential principle of the law of nations that no Power can liberate itself from the engagements of a treaty, or modify the stipulations thereof, unless with the consent of the contracting Powers by means of an amicable arrangement.”
²⁶
Although the words used to represent principles do not always represent their implementation, they can and do represent their progress.

A challenge to this approach lay in the number of treaties that had to be sorted through, as one list from 800 to 1873 contained some 7,500 entries. To deal with such issues,
The Journal of International and Comparative Law
was launched by Gustave Rolin-Jacquemyns (1873), who also founded the extant Institute of International Law. Its distinguished jurists members apply de Martens' approach to codify international law in non-official capacities, offer legal advice in controversial cases and through publications. A similar organization, founded in Brussels the same year, is the International Law Association, which encouraged business people as well as legal professionals to join. Then as today, its members concentrate on “the study, clarification and development of international law, both public and private.”
²⁷
Public law
refers to those binding on nation-states,
private
on individuals. International laws the Association helped formulate, including on transportation and shipping regulations, postal charges, copyrights and credit, continue to tangibly contribute to world peace by reducing day-to-day frictions.

A case-by-case approach based on relevant precedents became a custom for non-violently settling international disputes from the sixteenth to eighteenth centuries by so-called Prize Courts, which sought to resolve international conflicts within intra-national jurisprudence. In a prominent case between Sweden and England (1799), the presiding judge crystallized their functions:

The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of nations; but the law itself has no locality. It is the duty of the person who sits here to determine this question exactly as he would determine the same question if sitting at Stockholm; to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances, and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the same character.
²⁸

Standards for intra-national resolution of international disputes was set during negotiations between the United States and Great Britain over
issues relating to the War of Independence, leading up to the Jay Treaty of 1794. A judge was chosen by the legislatures of each country, and a third by common agreement. The parties presented their cases to the judges on specific issues, such as reparations, borders and trade terms, and their decisions were binding. As one historian puts it, “Prior to this time arbitrations were irregular and spasmodic; from this time forward they assumed a certain regularity and system.”
²⁹
This system of international arbitration, in more or less modified forms, prevails but only works when conflicting parties want it to, rarely the case. Realizing this pitfall and drawing upon past peace plans, French and British parliamentarians established the Inter-Parliamentary Union (IPU) in 1889 as a permanent forum for negotiation and mediation, which has since grown to over 140 member-states.

At its first meeting, founder Frédéric Passy proclaimed “Civilization is peace; barbarism is war,” and announced the IPU's purpose as promoting high-level negotiations and arbitration within a legal framework, first as a substitute then a replacement for war.
³⁰
The current IPU Statute states its mandate as working “for peace and cooperation among peoples and for the firm establishment of representative institutions.”
³¹
It does so by fostering contacts, coordination and exchange of experience among parliaments, parliamentarians and their international equivalents; considering questions of international interest and expressing its views on such issues with the aim of bringing about concerted action by its parliamentary members; contributing to the defense and promotion of human rights; generating and disseminating knowledge about representative institutions; and strengthening their means of action by way of recommendations. An outcome of these efforts towards international arbitration was the Permanent Court of International Justice established under the League of Nations after the First World War and its successor in the UN, discussed in
Chapters 9
and
10
, respectively. Yet, according to a historian of nation-state neutrality, after the Peace of Westphalia “either war had to become general to the point of excluding neutrality, or neutrality had to be imposed to the point of abolishing war by rendering it practically impossible. One was bound inevitably to do away with the other,” and his view war won out.
³²
In some ways this statement is true, in others not.

Taking the example of neutrality in maritime affairs, it is easy to see how a nation-state without naval capabilities could remain neutral in a naval war between nation-states. Indeed, this principle was codified early on in the jurisprudence of
Consolato del Mare
or Maritime Court of Barcelona, dealing with Mediterranean seafaring disputes in the sixteenth century. But on land, where national economies are mixed with one another, borders coterminous and interests intertwined, neutrality is
difficult to define, let alone actualize. The Russian Empress Catherine II pioneered the practice of strategic or “armed neutrality,” abstaining from war with any allied parties while reserving the rights to self-defense and attack others.
³³
To resist the threats of England's already extensive naval capabilities, she formed the First League of Armed Neutrality in 1780, which eventually had over ten member-states, followed by a less successful Second League in 1800, also on Russian initiative. Modern neutrality norms became those adopted by President George Washington's Neutrality Act (1794) regarding US non-involvement in ongoing Franco-English wars. First of its kind, the Act declared criminal anyone who, in American jurisdiction, attempted to augment the armed forces of, or participated in hostilities against, any nation formally at peace with the US. The Neutrality Act was used as a model for the English Foreign Enlistment Acts of 1819 and 1870, which went one step further by outlawing the armament of and assistance to nations at war with those at peace with England. Together, these Anglo-American Acts inspired similar pro-peace legislation in other countries.