The Internationalists by Oona A. Hathaway & Scott J. Shapiro

Author:Oona A. Hathaway & Scott J. Shapiro
Language: eng
Format: epub
Publisher: Simon & Schuster

THE DEMISE OF GUNBOAT DIPLOMACY

Lauterpacht accepted his election to the International Law Commission. He thought it would offer “a great opportunity to do a thing of enduring value.”19 His hopes soon ran into political realities. The work was taxing and working with the other members frustrating. “They are an ignorant lot,” he wrote to his wife, Rachel. “Sometimes I think that they appreciate what I am doing. Sometimes it seems that they are angry at being treated like members of my seminar. However, members of my class are much better.”20 Toward the end of his first session, Lauterpacht was selected as the rapporteur on the Law of Treaties for the commission. And, much to his relief, he was left to work on his own in producing the commission’s report. Over the course of nine months, he produced a masterful, comprehensive seventy-page Report on the Law of Treaties.

In many respects, the report was a restatement of existing law, identifying those enduring elements of treaty law that had survived the massive transformation of the Pact and the Charter. But parts of the report were groundbreaking—replacing black with white and white with black. Perhaps the most striking example was Article 12—entitled “Absence of compulsion,” which invalidated treaties imposed as a result of threat or use of force.21

This position was revolutionary. Just over two decades earlier, in a book published in 1927, a year before the Pact was signed, Lauterpacht had recognized that gunboat diplomacy, though deplorable, was legally effective: “The special structure of international law deprives the conception of a treaty of one of the essential elements of contract, namely, of the requirement of a free declaration of will.”22 Traditional international law had not regarded coercion as vitiating the validity of treaties for a simple reason: War was legal. “If war was permitted as an institution, it followed that the law was bound to recognize the results of successful use of force thus used.”23

Now writing for the International Law Commission and its member states, Lauterpacht explained that these foundational rules had changed: “In the General Treaty for the Renunciation of War of 27 August 1928 (Pact of Paris) the Parties renounced recourse to war as an instrument of national policy in their relations with one another.”24 As a result, “war could no longer be resorted to either as a legal remedy or as an instrument for changing the law.”25 As a result of this “fundamental change in the legal structure of international society,”26 agreements could no longer be coerced.27

The turnaround by the most authoritative body in the world on international law set off a scuffle between states. There were, after all, hundreds—if not thousands—of such treaties. Were they still valid? Predictably, states that had stared down gun barrels were eager to declare those treaties invalid, while states who had pointed the guns warned of the destabilizing effects of such declarations. The U.S. government—home of Commodore Matthew Perry—argued that “the validity of a large number of treaties, notably peace treaties, would be thrown into question.

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