The collectivisation of international security through processes of institutionalisation in public international law

The department of Public Law, Public International Law and European Union Law (Professor Dr. Thilo Marauhn, M.Phil.) at Justus-Liebig University Giessen (JLU) is part of the interdisciplinary research initiative “Dynamics of Security”, established together with the Philipps University Marburg in order to explore different forms of securitisations, mainly from historical perspectives. In brief, the research initiative, funded by the DFG (German Research Foundation) from April 1st, 2014 until the end of 2017 at least, covers nineteen different projects from both universities—thus involving more than 70 researchers, ranging from Ph.D. students to professors—each offering a unique approach to securitisation (i.e. law, history, sociology, politics and art history). Together these projects will reveal a coherent and all-embracing view of how securitisation entered different political processes throughout a range of epochs. The chair of Prof. Dr. Thilo Marauhn will be contributing to this overall agenda with a project that focuses on the history of public international law.
Our team of researchers consists of Professor Dr. Thilo Marauhn, Dr. Reut Yael Paz and Marie-Christin Stenzel. The purpose is to analyse the collectivisation of international security through processes of institutionalisation in public international law. Each research member explores if and under what circumstances the perception and characterisation of international relations as a security issue not only prompt juridification and processes of institutionalisation in international law, but also inspire the collectivisation of international security. To what extent did (selected) actors perceive the advancing institutionalisation of public international law, that began with the foundation of the first international organisations (e.g. the International Commission for Navigation on the Rhine, or the International Telecommunication Union) in the 19th century on the one hand, and the instalment of the first public international law chairs at universities on the other hand, and continued to evolve via the foundation of the League of Nations into the founding of the United Nations, as a security gain? In light of the apparent modern trend towards de-collectivisation by way of favouring bilateral and regional cooperation, why was the path of ever-growing collectivisation of security chosen during the rise of international law?
An approach to these questions is to be found through two monographs as well as several (joint) articles.
Dr. Reut Yael Paz will attend to issues concerning military legal expertise in its western and historical context in her monograph entitled: Remedying International Legal Theory and Practice by Military Legal Advisors.
The overall intention of Paz’s research is to examine the historical process that brought about the need for legal advice in the military forces. More specifically, Paz will investigate the military and/or legal advisors, individual experts who are usually part of the ongoing discourse between the executive, the judicial and the legislative branches in times of peace but mostly in times of war. Although the need to combine international legal and military expertise is not paradoxical, it remains highly sensitive: after all law’s abilities to limit intentional violence remain challenging on the national as well as international levels. This is particularly demanding when one person is expected to ‘speak law to power’ and ‘power to the law’; to manoeuvre both the legal and military necessities in real time. Can these experts do so and still remain loyal to the law? Can this be done without hindering the executive objectives of the military? This research intends to unpack—from a historical comparative methodological approach—if, but more importantly, how the professionalisation of the legal/military advisors come into being through the obstinate disruption that exists between its legal and military requirements.
Take, for example, the so-called ‘Lieber Code’ that dates back to 1863 when President Lincoln ordered the Prussian born Francis Lieber, a professor for history and political economics at the South Carolina College, to prepare ‘the Instructions for the Government of Armies of United States in the Field’ (Army Order 100 to the Union Forces). The fact that other countries were soon to follow this practice makes the historical conditionalities of the Code all the more important, particularly because it was then enshrined in Article 1 of the Hague Convention IV (1907), which was arguably accepted as customary international law since 1939. Even more, the obligation to provide legal advisers to the military gets more attention later in Article 82 of the Additional Protocol (1977) of the Geneva Convention (1949). Focusing on the specific legal/military advisor and his/her social economic conditions that inter alia influence the content of their legal contributions avails the necessary insights into the more general practices but more importantly, the future possibilities and roles for the military and/or international legal advisors.
Complementary to the project of Dr. Paz, Marie-Christin Stenzel’s research has a clearer geographical starting point. While the general focus of her dissertation is on the European Concert of Powers, i.e. the set of mechanisms which emerged from the Congress of Vienna in 1815, and which represented collective responsibility for the peace in Europe through means of new and discursive forms of diplomacy, Stenzel’s more specific interest is the role of Great Britain within that system. This is due to the fact that Great Britain played a preeminent role amongst the European powers in two respects: Firstly, Great Britain was more heavily opposed to the justification of interventions than the other powers were. This eventually led to considerable tensions and to the collapse of the European Concert of Powers. Secondly, Britain was the leading naval, trade and industrial power in the early 19th century, dominating a world-spanning empire, which meant her security was not only dependent on the balance of power on the European continent.
Great Britain’s conduct in the European Concert of Powers gives rise to exciting questions, which have not yet been fully researched from a legal point of view: How and why did an empire, which at least partially defined itself by its isolation, expect to increase its own security by integrating into a differentiated network of states with at least partially binding rules for the settlement of conflicts? Which were the intentions and objectives leading to Great Britain’s disapprobation of a right of intervention, at least among the European powers? How important and influential were the British Parliament and the public opinion in this context? Did the following statement of Lord Castlereagh, British Foreign Secretary and plenipotentiary at the Vienna Congress, made in a confidential state paper from 1820, bear any consequences for state practice?: “(...) it is of the greatest moment, that the public sentiments should not be distracted or divided, by any unnecessary interference of the Government in events, passing abroad”. To sum up, which considerations in terms of security policy, and especially regarding interventions, shaped British state practice and to which extent did the emerging science of international law influence her behaviour? Is it safe to say that institutionalised norms on the legality of interventions in another state (comprising the European pentarchy as well as third states) evolved during and in the years following the collapse of the Concert of Europe for the first time? If so, how heavily were those norms influenced by the specific attitude of Britain, and to what extent were they legally binding? And more generally: Can the European Concert be regarded as the nucleus of the institutionalisation of international law, or even as a predecessor of the League of Nations, being a system of institutionalised, collective security? To shed light on those questions, Stenzel will analyse such agreements and decisions of the European Concert in her dissertation, which Great Britain was actively involved in, as well as diplomatic and scholarly correspondence regarding the legal implications of the European Concert of Powers.

For further information on the whole SFB-project please visit sfb138.de/home/