The Eastern question

In the second half of the nineteenth century, the problem of humanitarian intervention was brought paradigmatically into focus by the so-called Eastern question. With the crisis of the Ottoman Empire, the European powers saw an opportunity to justify their call for intervention. But a joint European initiative could not be justified without theoretical backing, and to that end, the internationalists of the time were entrusted with constructing an appropriate set of concepts and principles.

In the Revue de Droit International et de Legislation Comparée, Rolin-Jaequemyns devoted a long article to the Eastern question, arguing for a sense of responsibility and a consequent duty incumbent on Europe to intervene collectively. By recourse to stereotypes that would now be recognized as racist, and by positing an insuperable clash between civilization and religion, Rolin-Jaequemyns depicted the Turks as “Shiites (the original inhabitants of Scythia) or Tartars, whose blood is mixed with that of slaves, and who are rejected by all nations” (Rolin-Jaequemyns 1876a, 298; my translation): they were distinguished by a “roughness and pride” of character (ibid.) that ran contrary to the spirit of progress. Their position he set in contrast to that of the Christian peoples of the European continent, who formed a natural and historical group which in certain circumstances had a right as well as a duty to act collectively with a single voice. This had happened at the time of the Crusades, when allintra-European rivalries were set aside for the sake of the common interest of Christian civilization, and everyone found unity under a single idea which was neither military nor theocratic but simply human, and which could have been pursued either peacefully or by recourse to war, depending on the available means and opportunities (ibid., 300-1).

In the second half of the nineteenth century, the Ottoman Empire could still claim to be in the vanguard of Islam, but since it had been losing strength as a military power, it could rule its subjects only by repressive means. It was in this context that a growing number of voices in Europe began to reject the idea of the balance of power in favour of a policy relying on a system of international law under which the shifting interests of players seeking their own advantage would yield to the permanent interests of humanity (ibid., 301). We have here an example of what Koskenniemi (2004, 199) has termed the hegemonic technique, which consists in taking a partial viewpoint (here the conception of international law and policy advocated by Europe) and presenting it as universal. Which is to say that, in pretending to universality, a conception is most likely to conceal an imperialist motive (Jouannct 2007, 396).

This takes us back to the declining Ottoman Empire, which in the 1520s was expanding and reaching the peak of its power—gaining control over half of Hungary in 1526, and then laying siege to Vienna in 1529—but by the second half of the nineteenth century, it could no longer strike any sense of fear into the European powers. In fact, its weakness made it a prey, destined to be broken up by the European powers—an enterprise that would be accomplished while parading an array of grand-sounding concepts like “'humanity,” “justice,” and “history”!

Rolin-Jaequcmyns reconstructs the treaties that served as stepping stones to that gradual conquest, reading them not in that light (as treaties marking successive phases of conquest) but, more nobly, as markers of a progression in which foreign policy would increasingly be guided by principles of law (maximes de droit). Thus in the 1827 Treaty of London, signed on July 6, under which the United Kingdom, France, and Russia acted jointly to remove Greece from Turkish control, we find it stated, in the preamble, that the signatories “have resolved to combine their efforts, and to regulate the operation [of the state of affairs involving the Greeks vis-à-vis the Ottoman Porte], by a formal Treaty, for the object of re-establishing peace between the contending parties, by means of an arrangement called for, no less by sentiments of humanity, than by interests tor the tranquillity of Europe” (cf. Rolin-Jaequcmyns 1876a, 311). But by the terms of a secret pact, if the Ottoman Empire refused to recognize Greek sovereignty over its own territory, the three signatories would take measures in support of the Greek claims to independence. One outcome of this pact was the Battle of Navarino of October 20, 1827, in which the combined British, French, and Russian fleet destroyed the Egyptian fleet commanded by Ibrahim Pasha, which had been sent to aid the Ottoman forces. And another outcome was the French Morea expedition.

¹

The Morea is the Peloponnese, which France occupied in October 1828 in the wake of Navarino. On the naval Battle of Navarino and on French policy in Greece, see Ancel 1931,65-89.

Next came the 1856 Treaty of Paris, which settled the Crimean War, in which Britain, France, and the Kingdom of Sardinia allied ostensibly to protect the Ottoman Empire against Russian efforts to expand into its territory. What the war gave rise to instead was a sort protectorate which the European powers exercised over the weakening empire. Indeed, as much as these powers, under Article VII of the Treaty, agreed to “declare the Sublime Porte admitted to participate in the advantages of the Public Law and System (Concert) of Europe,” they included this provision only after the Sublime Porte issued a firman (or decree) that, in addition to introducing measures designed to ensure good governance, fight corruption, and the like, also established a principle of religious, military, and civil equality under which the different religious groups within the empire were enabled to exercise their rights of personal status.¹⁰

These commitments the Ottoman Empire made had been held out by the European powers as a necessary condition for bringing the empire into the fold of civilized states.¹¹ At the same time, however, they acted as “tripwires,” for

• 10 On February 18, 1856, under the Ottoman reform movement known as TanzTmat, the empire issued an Imperial Reform Edict (khatt-i hiimaytin) granting equal rights to Muslim and non-Muslim subjects alike and expanding the rights previously recognized under the Giilhane Imperial Edict of 3 November 1839. In the latter—also known as Noble Edict of the Rose Chamber (khatt-i chcrifor khatt-i hiimayitn), named for the place where it was proclaimed, namely, Giilhane Park, adjacent to the Topkapi Palace in Istanbul—we find the recognition of “guarantees ensuring a perfect security for our subjects as regards their life, their honour, and their fortune“ (Collas 1864,414; my translation). Further on we find the right to property: “Each individual will be able to own property of any nature and will be able to use it freely, without hindrance from anyone” (ibid., 416). And then we have a principle of equality and generality: “These imperial concessions are granted to all individuals, whatever religion or sect they may belong to; everyone can enjoy them without exception” (ibid.). The 1856 edict guaranteed life and security and freedom of conscience, to which it added a menu of specific equal-protection guarantees, requiring Ottoman courts to recognize the validity of testimony given by Christians, for example, or prohibiting tax discrimination on account of religion. On the disputed question of the import of these normative innovations—whether they are to be understood as modernization processes or as measures designed to win the European powers’ support against the threat of Russian expansionism—see the excellent Augusti 2013, 56-62 and 84-93. See also Testa Bappcnheim 2006,412-13. On the TanzTmat period, see Dumont 1989,459-522.
• 11 Not until the nineteenth century did European law begin to interact with Ottoman law. As Esin Oriicii (1992, 40) observes: “Europe did not expand into the Ottoman Empire, except for voluntary borrowings, imitations and adaptations, albeit sometimes under pressure, because no part of the Ottoman Empire was ever a colony [...]. Even in the nineteenth century, when changes were introduced into the Ottoman legal system partly as a result of Western political demands and pressures, they were not impositions but rather imposed receptions, that is, not thrust from without, but received voluntarily by the appropriate organs of the legal system within.”

Only under Mahmud II (1808-39) did modernization movements begin to affect the empire’s legal system. With the help of the grand vizier Mustafa Re^id Р.ца, Mahmud II gave start to the TanzTmat reform process (see note 10), through which the Ottoman legal system was Westernized through the adoption of (Western) foreign codes (ibid., 44).

if the empire failed to live up to them, the European powers could take that as grounds for collective intervention, which is precisely what on several occasions happened after the 1856 Treaty of Paris was signed.

We can see this, for example, with the Mount Lebanon civil war of 1860, when thousands of Christians were slain by the Druze, who were backed by the Ottoman Empire. This prompted Napoleon III to intervene with an expeditionary force,¹² which put an end to the killing and set up an independent administrative entity: a mutasarrifiyya headed by a Christian administrator supported by officials representing other religious and ethnic groups.¹³

By the time we get to the Mount Lebanon civil war, then, we have a clear picture of the elements, both legal and factual, that in the eyes of the European

• 12 In 1860, an anti-Christian revolt broke out that claimed no less than a thousand lives. As a result of the equal status that Christians had gained under the Tanzimat reforms of 1839 and 1856 (see note 10), Muslims increasingly became resentful, coming to view the reforms as the outcome of a Christian conspiracy (see Traboulsi 2007, 36). In a bid to restore its own authority over Lebanon, the Sublime Porte sent its foreign minister Fu’ad Pasha, who had the governor of Beirut placed under arrest, and in Damascus had the governor of the city arrested and executed. Despite these measures, Napoleon III felt it necessary to militarily intervene in Lebanon—which he did in August 1860, sending a fleet of 6,000 troops there under the command of General Beaufort d’Haut-poul. The task assigned to the military expedition was to work alongside the Ottoman authorities, restore peace, come to the aid of Christians, and protect the interests of French capital invested in silk farming, making it possible for the workers engaged in this sector to resume their work (ibid., 38; cf. Rodogno 2011, 175ff.). This French intervention was functional to Napoleon Ill’s plan to expand into the Near East (in this regard, see Dumont 1989, 503-4; see also Herren 2012). Napoleon Ill’s intent was to establish an Arab kingdom serving as a buffer state between Anatolia and the Suez Canal (Traboulsi 2007, 38).
• 13 After the French militarily intervened in Lebanon, a commission was set up in Beirut by Great Britain, France, Prussia, Russia, and Austria: it met from October 1860 to March 1861, overseeing the post-civil war reconstruction and reshaping the social, political, and legal system of Mount Lebanon, which had been established in the early sixteenth century as a province of the Ottoman Empire. On June 9, 1861, a Reglement Organique was signed making Mount Lebanon into a mutasarrifiyya enjoying a limited political and administrative autonomy within the empire. Behind its semi-independence stood the reglement's European signatory powers, which Italy joined in 1867 (see Traboulsi 2007, 43). The mutasarrifiyya, formed out of two preexisting administrative units called Qa’im maqamiyyatayn, was headed by a non-Arab Ottoman Christian administrator who answered directly to the Sublime Porte and included an administrative council made up of twelve elected officials, six of whom were Christian and six Muslim. Subsequently, in 1864, this balance was tipped in favour of the Christian membership, with seven Christian councillors against five Muslim ones (ibid.). The mutasarrifiyya's semi-independence was the outcome of a compromise struck between the Ottoman Empire and France, which agreed to abandon its project to establish an Arab kingdom and to instead support a colonial model that “encouraged provincial and ethnic autonomy in the development of a world division of labour” (ibid., 41; see also Gordon 1980,45).

The origins of humanitarian intervention 15 powers justified them in intervening collectively against a foreign power, and specifically, in the case at hand, against the Ottoman Empire.^[1]

We can unpack this idea by going back to Rolin-Jaequemyns, for on the one hand, he points out that “modern international law rightly disallows intervention in a state’s domestic affairs” (Rolin-Jaequemyns 1876a, 369; my translation). But on the other hand, he immediately qualifies this principle by introducing two gaping caveats. For one thing, he comments, “the state in question needs to be worthy of its name, meaning that it should embody the rational conception of a harmonic whole, embracing all peoples who form a single territory, and who do not fall subject to the organized domination of one nation over several others” (ibid.). And, for another thing, “the state in question needs to be capable of living, and cannot simply be a political cadaver in decomposition” (ibid.). In granting that this is a dangerous qualification apt to be abused, he nonetheless holds it up as an “incontestable truth,” to this end quoting Bluntschli, who in Das moderne Völkerrecht commented that “the law of peoples only protects viable states. [...] ‘Only the living can have rights.’”

Having stipulated these two conditions, he proceeds to argue that the Ottoman Empire fails in both respects and thus forms an exception to the principle of nonintervention. Indeed, tor one thing, “the Ottoman Empire is not a state in the modern sense of the word” but rather exists as “the historical superimposition of one Muslim people over a multiplicity of Christian peoples” (Rolin-Jaequemyns 1876a, 369), considering that the Turks as a nation accounted for no more than a fourth of East Thrace, or European Turkey (about 2,210,000 Turks out of 8,396,000 inhabitants), and that Muslims “of all races” did not even account for half the population (ibid., 370). And, for another thing, turning specifically to Turkey, the country “finds itself in a state of moral and financial bankruptcy” (ibid., 374), so much so that it lacks the means by which to pull itself up by its own bootstraps: “it can only sink deeper, not only to its own detriment but tothat of the entire world” (ibid.). It is in this in landscape that the “rights” ascribed to the so-called Concert of Europe (concert européen) were forged.

The Concert of Europe, as dissected by Rolin-Jaequemyns, consisted in the concerted action of those “self-proclaimed” great powers that “on many occasions have claimed for themselves the right to interpose their mediation or their intervention to reestablish peace in Europe, act in the interest of humanity, and, more to the point, [...] to represent the whole of Europe in its relations with Oriental peoples" (Rolin-Jaequemyns 1876a, 368; italics in the original).

Having lucidly identified the problem, he ties himself into a knot trying to provide a foundation tor the legitimacy of European intervention. He begins with a factual premise by noting that if the international society “were completely organized, it would be headed by a regularly constituted authority capable of deliberating and acting on a permanent basis according to certain well-defined principles.” But this is not yet “a perfect state,” and so it is “headed by the authority, at once imperfect and intermittent, of the most powerful of its members. Its authority has already manifested itself in the form of conferences, congresses, and even interventions” (ibid., 368-69). What is striking, at this point, is that the state of affairs he is describing in the second half of the nineteenth century looks exactly like the state of international relations such as they now exist in the contemporary age.

But even more striking, perhaps, is how, on this premise, he builds the foundation on which to justify a right of intervention. For the next remarks, in relation to the authority exercised under this system: “We will not say that it has always manifested itself in the wisest or most correct way. But we must not confuse a right (le droit) with its more or less reasonable exercise” (ibid., 369). And then he qualifies this statement by ascribing a duty to the great powers who take it upon themselves to intervene under this authority: “Corresponding to any right (tout droit)'' he comments, “is a duty incumbent on the very entities that possess that right (le droit). The duty of the great powers is, on the one hand, not to use their international authority beyond its proper limits and, on the other hand, to use this authority effectively when the interests of humanity, and generally of peace, clearly require it” (ibid.). So the right of humanitarian intervention rests on the duty of the great powers to exercise it wisely within its proper limits and effectively in the interests of peace.

We will see that the basic elements of this paradigm will come up again in the contemporary doctrine of the responsibility to protect: the terminology will be different, to be sure, and so will the international scenario to which it will apply, but there is a case to be made that the “discourse” through which, in the second half of the nineteenth century, Western values were expressed as universal laws of humanity is still very much with us, propounding different forms of universalism that can still be analysed as expressions of Western values, as can be appreciated if we only consider the universality claimed for human rights today.

At the end of the nineteenth century, the European powers entrusted to themselves the historical task of putting an end to the “unjust” supremacy which the Ottomn Empire pretended to exercise over the Christian peoples subject to Turkish rule. The time had come for magniloquent words and idealities! The

Concert of Europe needed to act unilaterally as a collective body “for the cause of humanity, liberty, justice” (ibid., 385).

In reality, the European powers wanted to bring the Ottoman Empire under their hegemony, proceeding to gradually dismantle it by increasingly conferring administrative or political autonomy on the Ottoman provinces—a process brought definitively to completion with the close ofWorld War I.

• [1] Consider in this regard the assessment made by Friedrich Martens, professor at the University of Saint Petersburg and member of the Institut de Droit International: “It is Russia that until now has been the best safeguard for the interests of humanity in behalf of the oppressed populations of Turkey,” and which “absent an agreement among the European powers, has always been ready to act on its own to put an end to the Turks’ excesses against Christians [...]” (Martens 1877b, 50; my translation). Similarly appealing to the high principle of the rights of humanity as a basis of intervention was the French diplomat Edouard Engelhardt, commenting that “intervention can be legitimized only when a state threatens the security and legitimate interests of another, when by persistent action it threatens to upset a balance, or when it commits a ‘gross violation’ of the rights of humanity” (Engelhardt 1880, 10-11; my translation). 2 My translation from the German original: “Das Völkerrecht schützt nur lebensfähige Staten. [...] 'Nur der Lebende hat Recht’” (Bluntschli 1868, § 61). 3 In presenting this part of Rolin-Jaequemyns’s argument, I will ignore the distinction (which he appears to ignore) between a nation-state (a single nation formed into a state) and an empire (typically multinational).