Individual Motivations and the Shaping of International Law

On November 17, 2017, Professors Andrew Fitzmaurice and Steven Press joined the Duke Seminar on Corporations & International Law to discuss their current scholarly interests. Professor Fitzmaurice revealed his work on a forthcoming manuscript about the lives of international lawyer Sir Travers Twiss and his wife, Pharailde van Lynseele. He characterized his work as a methodological experiment: an attempt to develop the novel approach of micro-intellectual history. He seeks to untangle the day-to-day experiences of influential individuals and, from those experiences, draw conclusions about their subsequent ideas and actions. Professor Press, on the other hand, is interested in the international phenomenon of private individuals or companies “buying up” sovereign rights. He noted that his interest was partly inspired by Guantanamo Bay, where the U.S. purports to pay Cuba monthly in exchange for territorial rights. Each of their approaches recognizes the power of individual motivations on the shaping of international law.

Fitzmaurice starts from the assumption that day-to-day experiences shape later ideas and action. He seeks to tease out that causation for Twiss and his arguments relating to the Scramble for Africa.[1] Fitzmaurice admitted that his work is European-focused. That is an extension of his 19th century focus and his unique methodology. At the time, the individual lives of elite Europeans (and social circumstances informing their ideas and actions) were having a lopsided influence on world events. For Twiss, his change of opinion on sovereignty, private associations, and the creation of new States[2] extended partly from his domestic legal work creating new persons in ecclesiastical and marriage law.[3] But it was also a consequence of his career decline after his wife was outed as a former prostitute. Moreover, Lynseele, being adept in the custom of 19th century prostitution, might have provided inspiration to Twiss’s new legal theories.[4] In the seminar, Fitzmaurice explained that European prostitutes commonly assumed numerous legal identities to avoid detection. Here, we see day-to-day European Society life exported to international law as a consequence of Twiss bringing it to bear through his influence on international law.

Press uncovers the power of individual motivations through his findings on the purchase of sovereign rights. In the seminar, he noted his interest in German imperialism and the country’s practice of nonchalantly purchasing territory around the world. In his new book, Rogue Empires: Contracts and Conmen in Europe’s Scramble for Africa,[5] he shined a light on the explosion of the purchase of sovereign rights by private parties in the late 19th century. He noted that, during this period, about 35% of sovereign rights in Africa had been purchased by private parties. His findings point to the power of disreputable parties’ motivations in shaping law. In the seminar, he noted that the practice was a strange, seemingly short-lived phenomenon, but also suggested that similar practices extend into the modern age, especially with regards to mining rights. In his essay, Sovereignty and Diamonds in Southern Africa, 1908-1920, he reveals the subtle power of the Western individual in the history of international law. The liquidation of sovereign rights in the Namib Desert emanated partly from the German taxpayer complaining over lost profits at the hands of corporations.[6] Here, we see power struggles within European States overriding the interests of people in the territories concerned.

How do the works of these professors tie into debates about the modern corporation in international law? Fitzmaurice shows us that novel personhood arguments relating to the corporation are not sacred. If those arguments arose from day-to-day experiences of individuals, then it would not be problematic to re-examine them. In this way, his work provides evidence and justification to untangle the corporation’s historical origins and come to a modern consensus that takes account of broader equities. Press points us beyond the vessel of the corporation to the interests behind it. Corporations have been used as vessels for disreputable actors seeking deniability or inflating the importance of their contracts. In the seminar, Press conceded that it is not so simple. In many places, corporate control is preferred by the populace to State control. In Zambia, he noted, even State officials must show their passports to enter certain corporate controlled territory. The variation in the professors’ works is evidence itself of how complicated it is to analyze corporate governance and power. Although the legal form is common to disparate historical events, from 19th century Borneo to modern Zambia, the context is never truly the same, as actors bring different motivations to bear in various ways through the laws and norms available to them.

 

[1] See Andrew Fitzmaurice, The Justification of King Leopold II’s Congo Enterprise by Sir Travers Twiss, in Law and Politics in British Colonial Thought: Transpositions of Empire 111–116 (Shaunnagh Dorsett & Ian Hunter eds., 2010) (detailing Twiss’s evolution of thought from a “Vattel-like attachment to the supremacy of sovereignty” to justifying the “elevation of Leopold’s International African Association from an exploitative commercial enterprise into a legal authority with a status in the law of nations.”).

[2] See Andrew Fitzmaurice, The Expansion of International Franchise in the Late Nineteenth Century 12 (2017) (noting that with regard to private associations having international standing, “Twiss . . . rewr[ote] his own textbooks of international law to bring them into line with” King Leopold’s private ambitions in the Congo).

[3] See id. at 1–3.

[4] See, e.g., id. at 3–10 (setting out the connection between prostitution and Twiss’s legal theories).

[5] (Harvard University Press, 2017).

[6] See Press, Sovereignty and Diamonds, at 8 (“[I]n an effort to quiet the parliamentary and public perception that Germany had given away ‘million-dollar gifts’ in Southwest Africa to the Kolonialgesellschaft, Germany tried to reach a new written agreement with the Kolonialgesellschaft.”).

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