Edited by Alexander Orakhelashvili
Chapter 15: The 19th-Century Life of International Law
Alexander Orakhelashvili 15.1 INTRODUCTION The principal questions raised by the 19th-century framework of international law relate to the understanding by States of the general essence and relevance of treaty obligations; the relationship between treaty obligations and national interest, as particularly displayed in the example of continuous attempts and policies of great powers to acquire and maintain spheres of influence; and the relationship between treaties and general interest, that is the collective interest dimension in treaty-making. The 19th-century life of international law had multiple faces. It witnessed strong trends towards multilateralism and collective decision-making. Certain political, informal, quasi-legal yet arguably semi-constitutional normative principles developed and gained generally accepted character: the principle of the balance of power became universalised and institutionalised; the mutual encounter of empires produced the doctrine of spheres of influence. At the same time, this multilateralism served as yet another tool for Realpolitik in terms of legitimising colonial acquisitions and spheres of influence. The 19th century was also a period which impressed different writers differently, and produced several mutually diverging doctrinal trends: the ‘naturalism’ of Phillimore and the ‘pragmatism’ of Westlake and Hall, mirrored by the Euro-centrist doctrine bordering on racism led by Lorimer and, last but not least, Lassa Oppenheim’s positivism which has proved its conceptual value for a long time since the end of the 19th century. While Westlake, Hall and Lorimer are interesting only for a historical focus on the international legal doctrine, Oppenheim’s positivism lives on as a mainstream of the modern international legal system...
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