The history of international law is a field of study still underrepresented both in scholarship and university curricula. The sources, even some peace treaties, still await modern critical editions. In these circumstances a collection of new studies dedicated to the subject is a most welcome contribution. The volume is well arranged and produced and can certainly be recommended to both students and scholars of international law.
Nineteen individual contributions of various natures are thematically arranged in four parts. The volume is conveniently prefaced with a list of peace treaties from antiquity to the present times. The "Tractatus de confederatione, pace, and conventionibus" by Martinus Garatus Laudensis, edited by Alain Wijffels, is added as an appendix.
Chapters 2-5 constitute the first part, entitled 'Peace treaties and international law from Lodi to Versailles (1454-1920)'. The second part, 'Thinking peace: voices from the past', includes six chapters, dedicated, generally speaking, to the reception of Roman law and medieval legal tradition in early modern international law. The third and fourth parts, 'Thinking peace: towards a better future' and 'Making peace: aspects of treaty practice', consisting of four contributions each, are dedicated to the theory and practice of peace making, respectively.
In his introduction to the volume, Randall Lesaffer outlines both the scope and limitations of the book. The scope of the book is twofold: both the law which governs peace treaties and the law as it emerged from peace treaties are studied. 'The book goes beyond the analysis of treaties as legal instruments to the analysis of peace treaties as sources of the law of nations' (p. 2). Two limitations are acknowledged: a geographical one and the period covered. The book is limited to European peace treaty practice and deliberately excludes treaties with and between non-European powers as well as the problem of European expansion and colonialism. As far as the period covered is concerned, the Peace Treaties of Paris (1919/20) were chosen as the terminus ad quem, since they marked a fundamental turning point in the history of international law and the beginning of the era of international organizations; on the other hand, the history of early modern law of nations, which traditionally starts with the Peace Treaties of Westphalia of 1648, 'the very birth certificates of modern European states system', is traced to before this epochal date. Roman law, both classical and medieval, receives special attention in a number of chapters.
We also learn from the introduction that the book resulted from a meeting at Tilburg University on 30-31 March 2001, and that the contributors plan to continue research to fill in the many lacunae that still exist in the field and aim to open debate rather then to end it (p. 2).
The first part of the book discusses the peace treaties and international law from Lodi to Versailles (1454-1920) in chronological and fairly continuous order. Randall Lesaffer surveys peace treaties from Lodi to Westphalia (pp. 9-44), Heinz Duchhardt peace treaties from Westphalia to the Revolutionary Era (pp. 45-58), and Heinhard Steiger peace treaties from Paris to Versailles (pp. 59-99). Special attention is paid to 'the internal logic and mechanism of peacemakings and also to the categories which were used in order to situate the material results of the negotiations in a particular conception of the world' (p. 45). An attempt is made to achieve a balanced treatment of those issues that are still very explosive in contemporary politics (e.g., pp. 68-69). A summary of the contents of these chapters is hardly possible here. I note, however, that this clear and lucid outline is perfect as an introduction to the history of international law in the period covered for students of both history and law.
The second part, 'Thinking peace: voices from the past', examines the classical and medieval roots of early modern international law. This part is inevitably less coherent then the previous one and consists of six studies, relatively independent of each other.
In his long chapter, 'Vestigia pacis. The Roman peace treaty: structure or event?' (pp. 103-146), Christian Baldus starts with "an emblematic problem -- the legal nature of pax -- 'was war considered to be a rule and peace an exception, which therefore required a special foundation by treaty?'" (p. 106). In the first section of the chapter, 'the existence and peculiarities of ancient international law' is discussed in some detail (pp. 107-114). Baldus argues that, strictly speaking, 'the existence of international law was politically impossible ... at the time of Early and High Republic and then in late Antiquity' (p. 112). The reasons given are quite obvious: 'the law only just emancipated itself from the sacral formalism', and 'the theoretical instruments were to a large extent missing even in private law'. Moreover, because during the Classical period of private law Rome did not have any serious adversaries in the Mediterranean area, the terminology and theory of international law lagged behind the development of private law. The next section deals with the problem of 'Classical' Roman international law as a 'categorical system' (pp. 114-123). While traces of systematization of peace treaties are found, for instance, in Livy 34, 57, 7ff and Dig. 49, 15, 5, 2 etc., systematization in the proper sense of the word is certainly a modern invention: we form categories ourselves and try to discover what in the ancient practice corresponds to them. After a short section concerning 'Classical' Roman international law and sociological systems (pp. 123f), Baldus discusses a number of examples (pp. 125ff). Roman arbitration awards between third parties, debates about violations of treaties, and disputes between Rome and its allies are treated in considerable detail. The chapter ends with a methodological section entitled 'Desiderata'.
'The influence of medieval Roman law on peace treaties' is discussed by Karl-Heinz Ziegler. After making certain observations on the medieval practice of conclusion treaties and the Late Medieval work on international treaties by Martinus Garatus Laudensis (on whom see below) Ziegler comes to a natural conclusion that the influence in question 'was rather limited if we consider most of the material provisions ... On the other hand, this influence should not be underestimated' (p. 160).
The theme of reception is continued in 'The importance of medieval canon law and the scholastic tradition for the emergence of the early modern international legal order' by Dominique Bauer. The author proposes to deal with two 'central elements that emerged throughout the medieval period': natural law ('Natural law and the objective, public order', pp. 204-216) and voluntarism ('The legal subject', pp. 216-221). The antagonism between the legal subject and the objective, public legal order 'historically takes shape within the tension between voluntarism and consensualism on the one hand and institutionalization on the other' (p. 216). Bauer follows this historical development from Classical Roman and Justinian law, canon law and the glossators to John Peter Olivi, Jean Gerson Francisco de Vitoria, Francisco Suarez, and, finally, Grotius (whose 'eclectic definition of the concept of ius as a subjective right in fact collects the different terminological elements of the old scholastic tradition', p. 221).
To close the subject, Laurens Winkel considers 'The Peace Treaties of Westphalia as an instance of the reception of Roman law'. Winkel first considers a gradual change of ius gentium as a philosophical concept, and then turns to two institutions of Roman law implicitly referred to in the Peace Treaties of Westphalia: the principles of uti possidetis and restitutio in integrum. Winkel shows, quite successfully, that the Peace Treaties of Westphalia are a noticeable but until now underestimated instance of the (indirect) reception of Roman law (p. 237). Alain Wijffels contributes both a study, 'Martinus Garatus Laudensis on treaties', and an edition of the 'Treatise on alliance, peace, and conventions of princes' by Martinus Garatus Laudensis, a professor of Roman law in Pavia, Siena, Bolonga and Ferrara (c. 1453). Actually, as Wijffels shows, the treatise is better understood as a part of a larger work and not a treatise in the modern sense of the word as a comprehensive treatment of a particular subject matter. Garatus' treatise simply consists of a series of 63 brief questions, not arranged according to any obvious principle. 'Some questions could have been treated in another treatise and, conversely, some of the questions treated in other treatises (by the same author) are more relevant to the law of treaties' (p. 188). Sometimes the answer to a question could be just a reference to a given authority, without the solution having been spelled out. Wijffels deals in turn with three basic topics of the treatise -- personae, modus and effectus, that is, the actors involved in the agreement, the principles governing negotiations, and the scope of the agreement (pp. 189-196). Still, the work by Garatus is interesting as an example of the late medieval law of treaties (sometimes taken as one of the first treatments of the topic). A provisional edition, published as an appendix to the volume, follows the Venice 1584 edition. The critical apparatus is based on a collation of two other old editions and three manuscripts. Sources briefly quoted and referred to by Garatus are given in full in the notes supplied by Wijffels, which is very convenient.
In 'The kiss of peace', Hanna Vollrath discusses ancient and medieval practices and procedures involving the osculum pacis. She shows how these pre-Christian social practices were charged with Christian symbolism. Kisses were an essential part of establishing feudal ties (p. 171). They were a part of the elaborate court ceremonial both in Byzantium and in the West. After detailed presentation of numerous instances of medieval practices of kissing in various contexts, private and public, Vollrath addresses the question of the importance of kissing in the peacemaking process (taking as examples Henry II and Thomas Becket, pp. 177ff), and finally argues against the suggestions (defended in recent scholarship) that the ritual of kissing had ever possessed law-enforcing power. 'Legal consequences depend not on rituals, but on law-enforcing agencies ... not necessarily institutions like state-organized law courts; the members of community can act as a law agency as well' (p. 181).
The third part, 'Thinking peace: towards a better future', opens with a study by Marc Bélissa entitled 'Peace treaties, bonne foi and European civility in the Enlightenment', in which he shows that in the eighteenth century diplomacy changed its character. Political thinkers such as Gabriel Bonnot de Mably (1709-85) insisted upon publicity and transparency of peace negotiations: diplomats should turn bonne foi into the cornerstone of their peaceful intentions (p. 242). Philosophers criticized 'Machiavellian' diplomacy and insisted on 'true principles of morality' as a basis for the law of nations, which tended to become a kind of European constitution, on which one had to rely to civilize the political system of Europe (p. 242). According to this principle, any unfair and pernicious treaty should be considered void (p. 247). In his informative study, 'Peace, security and international organizations: the German international lawyers and the Hague Conferences', Ingo Hueck asks: 'Why did the strongest maritime and colonial power, Britain, develop a stronger notion of securing peace and building international relationship in the age of imperialism, while the young German Empire was devoting itself to glorifying war?' (p. 255). Certainly no one can hope to answer questions of this sort in a single article, but Hueck does a very good job outlining the history of nineteenth century legal scholarship in Europe and the UK, on the one hand, and in Germany, on the other. It becomes clear that during the nineteenth century public international law actually emerged as a branch of the legal discipline. Hueck outlines the development of the international peace movement and the theoretical controversy at the Hague Conferences of 1899 and 1907, and concludes with the following statement: 'Despite socio-cultural conditions being similar to those in the UK, in particular with presence of the German peace movement, prior to the First World War and the era of the League of Nations these circumstances had no effect either in the political or in the academic arena in Germany'. In 'Consent and caution: Lassa Oppenheim (1858-1919) and his reaction to World War I', Mathias Schmoeckel discusses the theory of international law formulated by this famous thinker, primarily his views on state sovereignty, the League of Nations, and the question of individual responsibility in international law.
The study by Andreas Osiander, 'Talking peace: social science, peace negotiations and the structure of politics', places 'the general subject matter of this volume, peace negotiations and treaties, within a theoretical framework' (p. 289). What kind of theoretical framework is meant becomes apparent from the second section of the chapter, while the first discusses a ('dubious') dichotomy of historiography and social science. According to Osiander, the approach advocated, called constructivist, 'is capable of integrating historiography and social studies to their mutual benefit' (p. 289). The last two sections discuss the problem of 'social and political change in Europe over the past ten or fifteen centuries' from a constructivist point of view (p. 290). The dichotomy in question is not simply dubious, it is false, and five pages are hardly needed for dismissing it. Shortcomings of methodological constructs of this sort can be illustrated by the following. On the one hand Osiander criticizes positivism, saying quite rightly that 'while the natural world may be studied with a positivistic approach, the social world cannot' (p. 302). On the other hand, on p. 307 we find the following: 'The social reality of any period is the result of constant interaction of forces of inertia and forces of change'. In the context of this study such a direct application of Galileo mechanics to the social world looks curious. Besides, the statement is (fortunately!) simply wrong. So theoretical assumptions made in the study are hardly convincing, but examples discussed in its second part are interesting and ingenious.
Let us now turn to the last part, 'Making peace: aspects of treaty practice'. In 'The ius foederis re-examined: the Peace of Westphalia and the constitution of the Holy Roman Empire', after a survey of the historical context of the Thirty Years War and the peace conferences which marked its end, Ronald G. Asch discusses the most critical issue of the peace negotiations, the ius foederis. He shows that the problem was discussed in the traditional term of the rights of resistance rather than in the context of international diplomacy, and concludes that 'lawyers and political theorists in the Holy Roman Empire continued to use ideas ... in the later seventeenth century which had largely become obsolete in Western Europe' (p. 337).
The second contribution by Karl-Heinz Ziegler to this volume, 'The peace treaties of the Ottoman Empire with European Christian powers', concerns 'the only non-Christian European power, which from the Middle Ages to the early twentieth century, has ever been a permanent factor of the political system of Europe' (p. 338). Ziegler scrupulously surveys the language and content of numerous truces and peace treaties which sultans concluded with Christian states from the Late Middle Ages to the peace treaty of Serves (1920) and the peace treaty of Lausanne (1923), placing them in European historical and political context.
In 'Peace and prosperity: commercial aspects of peacemaking', Stephen Neff surveys the relationship between the political and economic aspects of peace-making in its historic development from the Middle Ages (briefly) to the nineteenth and twentieth centuries (in considerable detail).
In the last chapter of the book Christian Tomuschat compares the 1871 Peace Treaty between France and Germany and the 1919 Peace Treaty of Versailles, paying special attention to the different political and legal contexts of these treaties. In 1871, war was still accepted as a natural part of dealing among states. No issues of international morality were raised. The situation changed in the beginning of the twentieth century. Not only was the responsibility of Germany and its allies for all the loss and damages caused by the First World War assumed, but also its leaders were personally charged with offences of a criminal nature. Still, relegating Germany to a secondary position within Europe, the authors of the Versailles treaty 'wished retroactively to win the battles of the past instead of building the future' (p. 392), thus paving the way for all the terrible consequences for European history of the twentieth century.
In the conclusion to this volume, Randall Lesaffer once again emphasizes the importance of reassessing the significance of the Peace Treaties of Westphalia of 1648 and thus of studying the periods preceding and following the "Westphalian era" (1648-1815).
The volume is very well written and produced. I noticed only a few misprints (on p. 402, for instance). Perhaps too specialized and expensive to be used as a textbook, it will certainly be of interest not only to specialists in the field, but also to a broader readership interested in the history of international law.