On 28 and 29 September 2017, the conference “Institutions and International Law in Eastern Europe” took place, hosted by the Leibniz Institute for the History and Culture of Eastern Europe (GWZO) in Leipzig. The conference was part of a broader research project entitled “Processes of Juridification in International Relations: How Conflicts in Eastern Europe Shaped Modern International Law” that investigates the controversial role of international law in the contentious reordering of Eastern Europe following the Congress of Vienna. Introducing the conference, ISABELLA LÖHR (Leipzig) explained that the conference would direct attention towards transnational legal networks with Eastern European participation and ask what mark they had left on legal discourses in the international realm. Löhr conceptualized Eastern Europe from a “post-institutional” perspective as a transnational and transregional network of legal scholars, experts, politicians and institutions. She proposed to look at the intersection between international lawmaking, institutions and the pre-existing legal structures or political agendas on the regional level and put forward the thesis that the institutionally scattered disposition of these transnational legal networks empowered historical actors from Eastern Europe to enter legal discourses that were formerly dominated by imperial powers.

Opening the first panel on minority protection, SIA SPILIOPOPOLOU ÅKERMARK (Åland Islands) examined the evolution of international law, drawing a line from early concepts of territorial autonomy in the 19th century to the League of Nations (LoN) up to the United Nations trustee system. She argued that the territorial autonomy, minority commitments and mandates as institutionalised in the LoN relied on tools for governing difference which had already been in use earlier. Giving the examples of two autonomy arrangements in the 19th century – the Grand Duchy of Finland (1809–1917) and the Septinsular Republic (the Ionian Islands under Russian and Ottoman sovereignty, 1800–1807) – she analysed both as early moves towards parliamentarism and constitutionalism, yet under the authority of the Russian and/or Ottoman Empires. At the turn of the 20th century, however, debates about semi-sovereign states prevailed and replaced 19th century ideas about self-determination and democratic inclusion. The LoN replaced earlier notions of liberty by creating a hierarchical system of autonomy and minority arrangements that gave priority to territorial integrity. Nonetheless, the Great Powers never considered creating a universal minority system as they imposed it only on the so-called “new states” in Eastern Europe. Since ideas of a restricted sovereignty also applied to the LoN’s mandate system, which was later to be replaced by UN trusteeships, Spiliopopolou Åkermark argued that the colonial experience and the treatment of people, regions and states in Eastern Europe were closely interrelated.

STEFAN WENDEHORST (Gießen/Vienna) examined the work of the Hungarian lawyer of German origin Ernst Flachbarth who dealt with the system of international minority rights simultaneously to its political implementation in the interwar period. Flachbarth assessed the history of international minority protection as a system of legal precedents going back to the rights and guarantees from the early modern period. Wendehorst commenced by introducing positive minority law as practiced in the Holy Roman and Austrian Empires, e.g. monarchs guaranteeing freedom of religion to Protestant and Catholic communities, guarantees for Muslims in the 19th century Balkan states or rights of Jews and Christians in the Ottoman Empire. In conformity with international law, the individual in the early modern period could put forward his righteous claims. Flachbarth concluded that rights and religious guarantees under the law of nations, sometimes working in tandem with constitutional law, did not provide ample legal precedents for the modern minority system – the difference being that the rights from the early modern period were personal and state-centred, while the contemporary rights were national and territorial. On this basis, Flachbarth argued for the establishment of a dynamic functional minority protection system monitored by the international community.

HANNAH MÜLLER-SOMMERFELD (Leipzig) illuminated the transformation of international minority protection to individual human rights, exploring human rights debates conducted by political elites in the US in the 1940s and their application in the Paris Peace Treaties of 1947. Gaining rapidly in importance during World War II, the term “human rights” replaced its synonym, the Bill of Rights, in 1942 with the Atlantic Charter and Roosevelt's Four Freedoms speech. One of the first documents bearing the term was the “Statement of Essential Human Rights” created by the American Law Institute in 1944. Catholic, Protestant and Jewish religious institutions, which had been predominantly concerned with minority issues during the interwar period, joined in and contributed their ideas in subsequent debates. Accordingly, the Paris Peace Treaties with Italy, Romania, Hungary, Bulgaria and Finland all included the clause about fundamental human rights and individual freedoms, yet this was to the detriment of the internationally acknowledged importance of minority protection. Human rights and minority protection parted company in 1947 due to the US which considered the proclaimed universality of human rights as sufficient protection, while minority rights were considered as the domestic concern of each country. Therefore, minority rights were not merely replaced by human rights but coexisted further.

ANTAL BERKES (Manchester), the first to speak on the second panel on overlapping sovereignties, explored the international settlement of land reform disputes of successor states in interwar Eastern Europe. He compared five cases of expropriation under the agrarian reforms filed by former owners of latifundia and formerly politically influential groups like Germans and Hungarians who from 1919 onwards became minorities governed by the titular nations of the new states. The expropriated landowners complained for restitution or compensation before international fora – the Council of the League of Nations, mixed arbitral tribunals and the Permanent Court of International Justice (PCIJ), where many of the claimants received effective legal remedies. Even though expropriated landowners did not always receive just satisfaction, their cases were of paramount importance legally as they contributed to the crystallization of international law principles like the prohibition of discrimination, the liquidation of private property without compensation and the protection of acquired rights notwithstanding a change of sovereignty. All of which became a legal basis for future petitions and claims as well as part of international law, although the custom would not be applied to socialist countries like the USSR.

MALCOLM MACLAREN (Zurich) stressed the contribution of the Treaty of Versailles to the development of international law in the case of the Free City of Danzig. By placing the city under the supervision and administration of the LoN, an “international experiment” was created as a compromise to settle Polish and German claims to the territory to secure a durable peace. Yet, he argued, the Versailles peace settlement with regard to Danzig and the therewith related national conflicts remained moderate enough that they did not fuel the political escalation that led to World War II. Though the Nazis took over the Free City of Danzig in an election, it did not cease to exist on its own accord until 1939 when Germany attacked the very international order which had created the Free City. In the eyes of the international community, however, the concept of territorial administration had proved to be a viable approach to settling conflicting territorial claims even after 1945, examples being the Free Territory of Trieste, Congo, East Timor, Brčko (Bosnia and Herzegovina), as well as the UN plan for Jerusalem.

Exploring tribunals and international criminal law in the third panel, MICHAL SWARABOWICZ (Geneva) examined the Upper Silesian Mixed Tribunal, another international experiment from the interwar period that ensured protection for minority rights. The tribunal dealt with cases of nationality, residence, property protection and continuation of economic life in the divided region giving individuals the right to be on a par with the state level, direct access to the tribunal and initiating procedures without first exhausting local remedies acting even against their own states. The tribunal’s authority – that unlike the PCIJ was on the same level as domestic courts – gave priority to economic stability over compensating individuals when dealing with cases of depreciated currencies. In the Nazi period, it took a formalistic approach when dealing with informal anti-Semitic dispositions, dismissing them as not being “legally binding”. In a long-term perspective, the Upper Silesian Mixed Tribunal made substantial contributions to international dispute settlement that replaced domestic courts in situations of a fundamental distrust in both states towards each other’s judicial system. With its case law being cited in the Saudi Arabia v. Aramco 1958 award, by which investor-state arbitration came into an equivalent position to inter-state settlement, the Mixed Tribunal finally influenced the law of international arbitration lastingly.

Focusing on the work of two international lawyers, the Romanian Vespasian Pella and the Pole Emile Stanisław Rappaport, DAVID PETRUCELLI (Vienna) highlighted the development of international criminal law in interwar Eastern Europe. He argued that aspirations to create a unified penal legislation in successor states, unify international penal law, criminalize aggressive war and create an international criminal court had been a post-imperial project to secure the status quo of the new nation states in Eastern Europe. Seizing an opportunity, Pella presided over a committee at the LoN which led to the convention against counterfeiting in 1929. Following this model, Pella initiated the drafting of conventions against drug trafficking, terrorism and prostitution, and for the convention on the international criminal court. Although ratification was slow in coming, the jurists around Pella had a major impact on international law by developing ideas and norms for dealing with these offenses which the LoN would reinterpret as principally international crimes. Historically, these crimes have been overshadowed by debates on war crimes and genocide. Yet Petrucelli argued that the conventions regulating drugs and prostitution have had a tremendous impact on most of the world’s population up to the present.

Affirming the contribution of Eastern Europe at the World Court (the Permanent Court of International Justice, 1922–1946, and the International Court of Justice (ICJ) founded in 1945), MILOŠ HRNJAZ (Belgrade) argued that international court cases and international lawyers from the region had had a significant impact on the development of international law. Most Eastern European judges came from Yugoslavia and Poland. Two Polish judges, Bohdan Winiarski and Manfred Lachs, served terms as presidents of the ICJ and held positions there together for 47 years. Approximately 50 percent of PCIJ cases came from Eastern Europe in comparison to ICJ with only 5-10 percent. From those cases, the PCIJ was fundamental in developing the structure of legal argument as well as concepts like the nature of international law, sovereignty, rights of individuals and treaty interpretation. The ICJ likewise developed the concepts of the law of the sea, international liability and prohibition of intervention (Corfu Channel case); established responsibility of states for genocide (Bosnia and Herzegovina v. Serbia and Montenegro); and gave an advisory opinion on the Declaration of Independence of Kosovo, weighing between self-determination and territorial integrity.

In the last panel focusing on delineating and redefining international law, WILL SMILEY (Portland) traced the evolution of the Ottoman law of release regarding prisoners of war, from Islamic law and Ottoman custom law to integration with customary international law of the European powers. The transformation was done mainly by a set of rules and practices established during the Russo-Turkish Wars in the 18th and 19th centuries, where Russo-Ottoman customs about releasing prisoners were created by one bilateral peace treaty and later were incorporated into the subsequent one. Thus, the multilateral Treaty of Paris in 1856 ending the Crimean War included Russo-Ottoman law of release up to that date and made it part of international law. The motives were mostly utilitarian – giving the foe reason to surrender and mutual expectations that soldiers in captivity on both sides would be treated better. Interestingly, in the 1878 Treaty of San Stefano, a shift emerged in the previous customs since neither Christian nor Islamic religion or conversion played a major role in releasing prisoners as before. Instead, the treaty turned to a concept of international law concerning the nationality of prisoners.

The concluding speaker, ARNO TRUELTZSCH (Leipzig) presented Yugoslavia in the context of the Non-Aligned Movement and its contribution to the reforming and strengthening of the UN system with the goal of establishing a solid “international rule of law” in order to bolster the Yugoslav position between East and West. After the Tito-Stalin split, Yugoslavia, together with its partners Egypt and India, proposed a number of resolutions at the UN, though with little impact on Cold War policies. Initiatives were the 1950 UN resolution Uniting for peace by unblocking the Security Council during the Korean War and the Suez peacekeeping mission in 1956, and passing a UN definition of “aggression”, which became a part of customary international law in 1974. The pillar of Yugoslav foreign policy was promoting active peaceful coexistence, active cooperation between socialist and capitalist states and advocating the idea of a world conference for disarmament to avoid the nuclear arms race. Yugoslavia also advocated human and collective minority rights, although valuing socialist self-management as more important than pluralism and freedom of speech.

In the final discussion, attention was given to bridging the gap between historical and legal perspectives on international law. The participants debated the role of international lawyers, the language of international law, the difficulties of differentiating between domestic and international law under imperial conditions and the connection between morals, normative regulations and legal practice in conflict-ridden zones like Eastern Europe. They emphasized how international law can stabilize or transcend power relations when the dissolution of empires creates a power vacuum. Though participants agreed that the Western European colonial legacy touched Eastern Europe, by the spread of its influence and notably by international lawyers from the region being trained in Western Europe, they also stressed the multifaceted character of international law and emphasized the need to understand international law as a tool to produce difference. Finally, yet importantly, for the purpose of examining post-conflict transitions from empire to state and federation to nation-state the relevance of frontiers, the non-aligned and grey zones were emphasized that do not fit neatly into analytical categories of law and politics.

Conference Overview:

Welcome and introduction

Panel 1: Minority protection
Chair: Agata Fijalkowski (Lancaster)

Sia Spiliopoulou Åkermark (Åland): Normative tools for managing difference in the League of Nations: Minority protection, territorial autonomy and mandates

Stephan Wendehorst (Gießen/Vienna): Ernst Flachbarth and the turn to history in international law: The transformation of early modern religious guarantees into national minority protection in interwar international law

Hannah Müller-Sommerfeld (Leipzig): From international minority protection to human rights. The Paris Peace Treaties of 1947

Panel 2: Overlapping sovereignties and their international settlement
Chair: Dietmar Müller (Leipzig)

Malcolm Maclaren (Zurich): The contribution of the treaty of Versailles to the development of international law: The case of the Free City of Danzig

Antal Berkes (Manchester): The international settlement of land reform disputes of successor states in Eastern Europe (1918–1939)

Panel 3: Tribunals and international criminal law
Chair: Elisabeth Gallas (Leipzig)

Michal Swarabowicz (Geneva): Upper Silesia Mixed Tribunal: An international experiment seen from the modern perspective

David Petrucelli (Vienna): International criminal law as a solution to the problem of Eastern Europe between the two world wars

Miloš Hrnjaz (Belgrade): Eastern Europe before the World Court: Thumbelina of the international legal order?

Panel 4: Delineating and re-defining international law
Chair: Katja Naumann (Leipzig)

Will Smiley (Portland): The law of war on the Danube: Prisoners, treaties, and legal change in the Ottoman Empire, 1853–1878

Arno Trueltzsch (Leipzig): Non-alignment in the United Nations and its impact on international law: The case of Yugoslavia

Final discussion