Abstract
Despite being an inherent part of international relations for more than four centuries, the relationship between power and international law is still poorly understood.’ We all know that international law has spectacularly failed to restrain power on a number of occasions in the past. However, in contemporary international relations, states and international organisations grant a larger role to international law than ever before, which implies a hope that it might somehow work. It is just as clear that powerful states still succumb to the temptation of ignoring a rule that they find exasperatingly inconvenient, while also expecting other states to respect their rights under international law. This puzzle is rarely, if ever, addressed in contemporary academia, or indeed elsewhere. All too often the level of analysis is limited to either a pious wish that all states will be well behaved, civilised and lawabiding at some undefined point in the future, or the more cynical view that when states disagree, ‘might makes right’. The latter interpretation is very common but can mean two very different things: either the right of the powerful to ignore the rules if they wish, or the ability of the powerful to write the rules as they please. Both directly stem from the one feature that makes international law different from any national system of law: there is no central agency that can set the rules and enforce them upon unwilling states.
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Notes
See M. W. Janis, ‘Jeremy Bentham and the Fashioning of “International Law” ’, American Journal of International Law, Vol. 78, No. 2 (April 1984), pp. 405–418.
A modern example of this phenomenon is Mary Ellen O’Connell’s,The Power and Purpose of International Law, Oxford 2008, which was criticised by Carlo Focarelli, for ‘nowhere provid[ing] a definition of the “purpose” of international law’, see European Journal of International Law, Vol. 20 (2009), pp. 957–961, p. 957. Her main argument is that international law is law because there are a variety of sanctions available to enforce it, but she does not discuss the politicised nature of that enforcement.
See Brett Bowden, ‘The Colonial Origins of International Law. European Expansion and the Classical Standard of Civilization’, The Journal of the History of International Law, Vol. 7, No. 1 (2005), pp. 1–24.
For a different view, see Arnulf Becker-Lorca, ‘Universal International Law: Nineteenth Century Histories of Imposition and Appropriation’, Harvard International Law Journal, Vol. 50b, No. 2 (Summer 2010), pp. 475–552.
Damian O’Connor, ‘Privateers, Cruisers and Colliers: The Limits of International Maritime Law in the Nineteenth Century’, RUSI Journal, Vol. 150, No. 1 (February 2005), pp. 70–75, p. 71.
See Francis Piggott, The Declaration of Paris 1856. A Study, Documented, London 1919, p. 128; and Charles H. Stockton, ‘The Declaration of Paris’, American Journal of International Law, Vol. 14 (1920), pp. 356–368, 358, 361. The first monograph, Francis Stark’s The Abolition of Privateering and the Declaration of Paris, New York 1897, did not make use of archival sources.
Bernard Semmel, Liberalism and Naval Strategy – Ideology, Interest and Seapower during the Pax Britannica, London 1986, pp. 56–57.
William Malkin, ‘The Inner History of the Declaration of Paris’, British Yearbook of International Law, Vol. 8 (1927), pp. 1–44, p. 37.
Olive Anderson, ‘Some Further Light on the Inner History of the Declaration of Paris’, Law Quarterly Review, Vol. 76 (1960), pp. 379–, pp. 382, 385.
Olive Anderson, A Liberal State at War: English Politics and Economics During the Crimean War, London 1967, p. 272.
Paul Kennedy, The Rise and Fall of British Naval Mastery, London 1976, p. 175.
Andrew Lambert, ‘Great Britain and Maritime Law from the Declaration of Paris to the Era of Total War’, in Rolf Hobson and Tom Kristiansen (eds.), Navies in Northern Waters: 1721–2000, London 2004, pp. 11–40, p. 15.
Avner Offer, The First World War: An Agrarian Interpretation, Oxford 1989, pp. 271, 282.
Andrew Lambert, Crimean War – British Grand Strategy, 1853–1856, Manchester 1990, pp. 333–334.
Gary Anderson and Adam Gifford, Jr., ‘Privateering and the Private Production of Naval Power’, Cato Journal, Vol. 11 (Spring/Summer 1991), pp. 99–122, p. 112. Pat O’Malley, ‘The Discipline of Violence: State, Capital and the Regulation of Naval Warfare’, Sociology, Vol. 22, No. 2 (May 1988), pp. 253–270, p. 265.
Alexander Tabarrok, ‘The Rise, Fall, and Rise Again of Privateers’, The Independent Review, Vol. 11, No. 4 (Spring 2007), pp. 565–577, p. 575; Antony Bruce and William Cogar, An Encyclopedia of Naval Warfare, Chicago and London 1998, p. 293; Ulrich Scheuner, ‘Privateering’, in Rudolf Bernhardt (ed.) Encyclopedia of Public International Law, Vo l. 3, Amsterdam and New York 1997, pp. 1120–1122. This argument is also made in the otherwise very well-informed study by John W. Coogan, The End of Neutrality: The United States, Britain and Maritime Rights 1899–1915, Ithaca 1981, p. 23.
Nicholas Parillo, ‘The De-privatization of American Warfare: How the U. S. Government Used, Regulated, and Ultimately Abandoned Privateering in the Nineteenth Century’, Yale Journal of Law & The Humanities, Vol. 19, No. 1 (Winter 2007), pp. 1–95, p. 10.
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© 2014 Jan Martin Lemnitzer
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Lemnitzer, J.M. (2014). Introduction: Power, Law and the Declaration of Paris. In: Power, Law and the End of Privateering. Palgrave Macmillan, London. https://doi.org/10.1057/9781137318633_1
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DOI: https://doi.org/10.1057/9781137318633_1
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