Permanent neutrality as a stepping-stone for a Code of Nations?

The juridification of many areas of society in the late 19th 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 19th 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.