COMMENTAAR: "Affaire-Benalla: staat Macron boven de wet ?" (DeMorgen.be, 23 juli 2018)

(bron afbeelding: Reuters/demorgen.be)

Ik schreef een kleine bijdrage voor DeMorgen.be over de crisis rond Alexandre Benalla, de gewelddadige medewerker van Emmanuel Macron.

Eerste paragraaf:

De affaire-Benalla gaat over een adjunct van Macrons kabinetschef die zich op 1 mei als politieagent heeft voorgedaan, in een klimaat van fel protest tegen de hervormingen van arbeidsmarkt en universiteit. Hij heeft geweld gebruikt tegen vreedzame (linkse) betogers. In alle discretie werd een tuchtstraf opgelegd (twee weken schorsing). Tot nu. In volle komkommertijd brengt Le Monde beelden van het incident uit. Dat valt slecht voor de ‘président des très riches’: de oppositie verwijt hem net arrogantie, autoritarisme tot zelfs brutaliteit in zijn liberale hervormingen. Een video zegt dan meer dan duizend toespraken

Lees hier verder.

ANNIVERSARIES: the Battle of Oudenarde (1708-2018)

Every year in July, the anniversary of the battle of Oudenarde (11 July 1708) makes me realise I tend to age together with my previous research.

The twitter hashtag #OTD allows for regular recalls of events or major texts, using the fantastic and ever-growing historical online resources at our service.

An interesting but short document is the Declaration of War by Louis XIV against the Emperor, England, the Dutch Republic and their allies, issued at Marly on 3 July 1702. The text is published -where else?- in the Corps universel diplomatique du droit des gens, in the first section of its eighth volume, which appeared in 1731, available on Google Books.

The documents illustrates the very limited relevance of declarations of war for international law. These texts are pure unilateral and intended to convince one's own supporters. They can be 100% opposite to the discourse of secret negotiations. I refer to my article in History of European Ideas (2016) on the Wars of the Quadruple Alliance and the Polish Succession (see here).

In the preamble, Louis XIV recalls his magnanimity for having conceded peace to the Princes voisins jaloux de sa Puissance at the Peace of Rijswijk (1697), which ended the last major European War, the Nine Years' War (or War of the League of Augsburg). France indeed did win the major engagements in the Spanish Netherlands (under command of the famous marshal Luxembourg), but negotiated a partition of the Spanish Succession, signed in 1698 and in another configuration in 1700 (see earlier on this blog). 

Since the decision to go to war has already been taken a while ago (in November 1700, when Louis XIV decided to accept the will of Charles II for his grandson, well knowing that this would imply waging war on most European princes, but with Spain on his side), the first material element in the declaration is of a purely propagandist nature. The Emperor, by augmenting the number of his troops, by concluding treaties and alliances with several other princes (especially England and the Dutch Republic), without any 'legitimate right' to the succession to the Kingdoms & Estates of the Spanish monarchy, has become a threat to the tranquility of Europe. The new conflict was as unjust as ill-founded.

These sentences refer to the Treaty of the Grand Alliance, concluded between the Emperor, who demanded the Spanish inheritance for his second son, archduke Charles of Habsburg, on the other hand, and the Maritime Powers on the other hand. The Treaty of 7 September 1701 is of the utmos  importance to understand why the English would in 1711 decide to opt for separate peace negotiations with France. The Maritime Powers did not promise to fight until the whole of the Spanish monarchy had come under Austrian control. They only pledged to secure an aequa et rationi conveniens satisfactio (equitable and reasonable satisfaction). 

This alliance between Vienna, Hampton Court and The Hague came seven months after the French had installed their troops in the Spanish Netherlands (present-day Belgium and Luxemburg, without the Prince-Bishopric of Liège). This decision, coupled with conferring the monopoly to import black slaves for the Spanish colonies to the French Compagnie de Guinée, or the decision to recognise the title of the chased Catholic King of England's son, explains why these three European powers wanted to thwart French expansion. The Emperor's 'rights' to the Spanish succession were part of a complex and far stretching discussion in European diplomacy, going back to 1659 at least (see my earlier article "From Contract to Treaty. The Legal Transformation of the Spanish Succession"). In other words, it is hard to believe any outside observer would have taken this text seriously. This is the main reason why I am extremely skeptical about data-mining declarations of war, or applying lexical analyses within the restricted framework of a text without context....

The French manifesto accuses the allies of having started hostilities, against and to the detriment of solemnly sworn treaties. The whole of Europe could witness Louis XIV's moderation, had seen sieges laid to cities, occupation of strategically advantageous positions, the stopping of convoys, prisoners made, avant qu'il y eût aucune Déclaration de Guerre, while Louis XIV had made his ambassadors or envoys negotiate peace.

In reality, both Louis XIV and Leopold I knew they were set for war. The Austrians confiscated the Duchy of Milan as soon as Charles II of Spain had died (October 1700). They claimed this territory was a fief of the Empire, and had to return to the Emperor at the extinction of the ruling line. I n the French view, this territory either had to be part of the partition agreed with the Dutch and English, or had to be claimed back by force, as soon as Louis XIV had agreed to accept Charles II's last will, which conferred the whole of the Spanish monarchy on his grandson, Philip of Anjou.

Louis XIV is said to have been shocked by the Démarches si contraires à la bonne foi and to the Powers' own interests. After publication of manifestos by the Emperor, England and the Dutch, he could not do anything else, to safeguard his own estates and those of his grandson, than to arm his troops and collect taxes considerable enough to stop the plans of the enemies of the House of Bourbon. 

All forces, terrestrial as well as maritime will be used, with the help of divine protection, implored for a just cause. Hence, war is declared to the Emperor, England, the Dutch and their allies sovereings. Louis XIV ordains and enjoins all his subjects, vassals and servants to stop those of the Emperor, the English, the Dutch and those of their allies. He forbids explicitly all communications, trade nor intelligence, on penalty of death. All permissions, passports, sauvegardes or saufconduits are declared null and void. 

The Admiral of France, the Marshalls, governors and lieutenants-general, maréchaux de camps, colonels, mestres de camps, captains, chiefs and conductors of the King's soldiers, on horseback as well as on foot, French or stranger, and all other appropriate officers, execute the King's declaration, within the perimeter of their competences and jurisdiction. 

Car telle est la volonté de sa Majesté !

The declaration is hung out or read out in all places of France, both maritime and terrestrial, ports, as shall be necessary, to avoid that anybody could invoke his or her ignorance of the situation.

Signed,

Louis.

As well as (secretary of state for war), 

Chamillart.

Marly, 3 July 1702.

CONFERENCE REPORT: The Parisian Peace Treaties and the Emergence of Modern International Law (1919-1920) (ESILHIL-Blog)

(image source: FAZ)

The Frankfurter Allgemeine Zeitung published an elaborate conference report on the Journal of the History of International Law symposium organised by Randall Lesaffer (Tilburg/KULeuven) and Jan Lemnitzer (Southern Denmark) on the "Parisian Peace Treaties (1919-1920) and the Emergence of Modern International Law". I contributed a paper on the "end" of imposed Belgian neutrality in 1919. After a peer review process, the papers presented will be published as a JHIL-special issue.

The ESILHIL-blog has the text, which can also be read on the newspaper's own site.

CONFERENCE: "Permanent Neutrality, Stepping-Stone for a Code of Nations?" [ESCLH 5th Biennial Conference: Laws Across Codes and Laws Decoded] (Paris: Ecole normale supérieure, 28-30 JUN 2018)

(image source: Worldkings)

I presented a paper entitled Permanent Neutrality, Stepping-Stone for a Code of Nations? at the 5th Biennial Conference of the European Society for Comparative Legal History, organised by Prof. dr. Jean-Louis Halpérin at the Ecole normale supérieure (Paris, 28-30 June 2018).

Abstract:

The juridification of many areas of society in the late 19^th century is a fitting and popular paradigm to examine the development of specific regimes, designed to encompass transactions in the industrial society (Vec 2011). International law is no exception to this general narrative. Several analyses either start in the era of the “Gentle Civilizer of Nations” (Koskenniemi 2001) or deny the “Classical law of nations” (Lesaffer 2011) its validity through a positivist lens (Halpérin 2014).              Nevertheless, continuity with the old droit des gens and resistance to codification surface when analyzing primary sources in the archives of European chanceries. In the international arena, states are self-legislating legal subjects (Combacau&Sur 2016). This primary liberalism of international law (Jouannet 2011) is the bedrock of normativity. The Statute of the Permanent Court of International Justice places explicit state consent at the top of the normative order, followed by custom. The more activist role of doctrine is only subsidiary “what states actually do” (Crawford 2014).              Neutrality is often defined as the voluntary abstention from an armed conflict between third parties (Abbenhuis 2014/Wani 2015). The transformation of the concept with the use of “permanent” neutrality in the cases of, the Swiss Confederation, Cracow, Moresnet (1815), Belgium (1839) or the Grand-Duchy of Luxembourg (1867), is often used as an example of the juridification of interstate relations in general. A specific member of international society is singled out and rendered immune to aggression, as a counterpart of an obligation to abstain from assistance to belligerents and to remain impartial. Some scholars argued that permanent neutrality preceded a general abandoning of the use of force, the pacigérat (Descamps 1902). I argue that this approach overlooks the conceptual prehistory of neutrality in early modern doctrine (Schnakenbourg 2013/Leerberg 2015), and, at the same time, was not integrated in diplomatic discourse either.
The papers of Louis Arendt (1843-1924), Director of Political Affairs at the Belgian Ministry of Foreign Affairs (State Archives, Brussels), as well as the series “Neutralité-Indépendance-Défense Nationale” (Ministry of Foreign Affairs, Brussels) demonstrate how the life of international law was fed with doctrine, both “ancient” and “modern”. Practitioners read codifications (such as those of The 1897 and 1907 Hague Conferences) as an exception to a general rule, or, more precisely, as an addition to an essentially horizontal normative system. The guarantors’ willingness to intervene on behalf of Belgium depended on discretionary, political factors. Accessorily, the published critical reports of the British agent in Brussels, All Souls (Ox.) fellow Arthur Hardinge, argue for that the acquisition of Congo (1908-1909) violated Belgium’s neutrality obligations in the first place.
Permanent neutrality was not eternal: the Peace of Paris abolished this sui generis creation of 19^th century international law, and turned to the creation of international institutions as new arena’s of horizontal dialogue and confrontation between international law’s primary subjects (Oppenheim 1919). I argue that the main reason for the failure of permanent neutrality as a stepping-stone for a code of international law lies in its conceptual architecture, or the impossibility to reconcile its voluntary, discretionary nature and the nature of its obligations.

Bibliography:

M. Abbenhuis, An Age of Neutrals: great power politics 1815-1914 (CUP 2014)J. Combacau & S. Sur, Droit international public (LGDJ 2016)J. Crawford, Change, Order, Chance. The Course of International Law (Brill 2014)E. Descamps, La neutralité de la Belgique au point de vue historique, diplomatique, juridique et politique (Larcier/Pedone, 1902)J.-L. Halpérin, “L’histoire du droit international est-elle compatible avec les théories positivistes?” (In: V. Chétail & P.-M. Dupuy (dir.), The Foundations of International Law/Les fondements du droit international. Liber Amicorum Peter Haggenmacher (Brill, 2014))

More information here.