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The nadir of vital interests: Hannah Arendt and the Franco-German Armistice 1940
Published online by Cambridge University Press: 11 December 2020
Abstract
Illusions of common interest and joint purpose falter when states choose to break up, as with the recent changes to the European Union, or according to more dangerous precipitants such as those which shaped the Franco-German Armistice 1940, 80 years ago as a detail of war. The latter bares the sudden end of the Franco-British alliance and holds an invitation from history to re-examine the troubling political, social and legal layers of the concept of the vital interests of states. That category opened to radically different interpretations for political and legal thinkers who witnessed the fall of France yet did not respond directly or immediately. Hannah Arendt’s theory of politics, conceived in the aftermath of war as a corrective to the internal fragmentation of the European nation-state, elucidates the instability of the concept of vital interests which underpinned international legal and political thought in the 1930s and 1940s and frustrates the co-operative relations between states. The problem pairs back, she says, to whether interests signify an associative technique or sword. Her invitation for legal thought is to challenge the expectation of rupture implicit in the juridical category by outlining an alternative that recovers the pacifistic function of law and implicates the international lawyer.
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References
1 English translations of the agreements circulated by the Associated Press in Berlin appeared in the New York Times and Washington Star on 26 June 1940 in the form subsequently issued by the American Society of International Law: ‘“Armistice Between France and Germany” signed in the Forest of Compiègne, 22 June 1940 6.50 p.m., German summer time’, (1940) 34 AJIL Sup. 173; ‘“Armistice Between France and Italy” signed at the Villa Incisa, near Rome 24 June 1940 7.15 p.m. Rome time’, (1940) 34 AJIL Sup. 178. The terms also appeared, in late June 1940, in England: ‘The Franco-German Armistice Terms’, (29 June 1940) 17(13) Bulletin of International News 779; ‘The Franco-Italian Armistice’, (13 July 1940) 17(14) Bulletin of International News 852; summaries immediately appeared in ‘Report of the Executive Committee for 1940’, (1940) 26 Transactions of the Grotius Society xl, at xli.
2 H. Lauterpacht, The Function of Law in the International Community (2011); J. Brierly, The Outlook for International Law (1944); J. L. Brierly, ‘Vital Interests and the Law’, (1944) 22 BYIL 51 which extended earlier commentary by Brierly about the relation between law and politics: J. Brierly, ‘The Relation of International Law to International Peace’, (1927–1928) 13 Cornell Law Quarterly 385, at 396–7.
3 See Lauterpacht, Function of Law, ibid., at 147–52.
4 For general biographical and bibliographical details see, e.g., ‘Sir Hersch Lauterpacht (1897–1960)’, Oxford Dictionary of National Biography (2019); C. W. Jenks, ‘Hersch Lauterpacht: the scholar as prophet’, (1960) 36 British Year Book of International Law 1; E. Lauterpacht, The Life of Sir Hersch Lauterpacht, QC, FBA, LLD (2010); ‘James Leslie Brierly’, Oxford Dictionary of National Biography (2019).
5 See Lauterpacht, Function of Law, supra note 2, at 445–6. For detailed analysis of Lauterpacht’s critique of positivism, states, and state sovereignty in the context of his theory of international law including his specific idealism and naturalism see, e.g., M. Koskenniemi, ‘Hersch Lauterpacht (1897–1960)’, in J. Beatson and R. Zimmermann (eds.), Jurists Uprooted: German-Speaking Émigré Lawyers in Twentieth Century Britain (2004), 601, at 619–22, 644, 657–8, 661.
6 Lauterpacht, Function of Law, supra note 2, at 181, 181–5.
7 Ibid., at 444–5.
8 Ibid., at 183, restating views expressed in Brierly, ‘International Peace’, supra note 2, at 396–7. Also see H. Lauterpacht, ‘Brierly’s Contribution to International Law’, (1956) 32 British Year Book of International Law 1, at 1–6, 8–9.
9 Brierly, Outlook for International Law, supra note 2, at 38.
10 Schmitt, The Concept of the Political (1996).
11 Ibid., at 35, 67.
12 German-speaking émigré scholars in America and Great Britain ensured the repute of Schmitt’s oeuvre for anglophone scholars during the 1930s alongside disagreement with his celebration of the authoritarian state and its predisposition to war, e.g., J. Kunz, ‘Völkerrechtliche Grossraumordnung’, (1940) AJIL 173, at 176; Lauterpacht, Function of Law, supra note 2, at 69. For general discussion of intellectual debates between Schmitt and contemporary juridical thinkers during the 1930s including Hans Kelsen and Leo Strauss see, e.g., D. Dyzenhaus, ‘Friend and Enemy: Schmitt and the Politics of Law’, in D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (1999), at 38–101.
13 E.g., Q. Wright, A Study of War (1942); H. Kelsen, Peace Through Law (1944); H. Kelsen, Law and Peace in International Relations (1943); G. Schwarzenberger, Power Politics: A Study of International Society (1941); G. Schwarzenberger and G. Keeton, Making International Law Work (1939); G. Schwarzenberger, International Law and Totalitarian Lawlessness (1943). Numerous wartime textbooks of international law alluded to the problem of vital interests (sometimes by name) in the context of explication of basic principles relevant to organizational oversight of international security by the League of Nations: e.g., L. Oppenheim (Lauterpacht 6th edn.), International Law. A Treatise Vol II., Disputes War and Neutrality (1940), at 30–3; J. Brierly, The Law of Nations (1942), at 211–12; G. Scelle, Manuel Élémentaire de droit international public (avec les Textes essentiels) (1943), at 536, 553.
14 See Lauterpacht, International Law (1940), supra note 13; Brierly, ibid.
15 See, e.g., Schwarzenberger (1941), supra note 13.
16 H. Arendt, ‘Chapter V: Action’, in The Human Condition (1958); H. Arendt, On Revolution (1963), at 142–3.
17 See notes and citations at note 1, supra.
18 On 24 June 1940, for example, The Daily Mirror carried the headline, ‘Hitler’s Terms: Navy and Half of France’, and a summary of the terms, highlighting clause 8 which related the resignation of the French fleet. See also, ‘Mr Churchill on the Terms: “Grief and Amazement”—Call to Frenchmen—“Aid Britain to Defeat Enemy”’, Sydney Morning Herald, 24 June 1940, at 9.
19 For a ‘running account’ of the French collapse and the main political events in France and other countries between May and June 1940 see, e.g., H. F. Armstrong, ‘The Downfall of France’, (1940) 19(1) Foreign Affairs 55, esp. at 134.
20 Multiple observers expressed dismay about the destruction of the laws of warfare and neutrality by German ambivalence to codes governing belligerency, e.g., W. Friedmann, ‘International Law and the Present War’, (Lecture to Grotius Society, 21 November 1940) (1940) 26 Transactions of the Grotius Society 211, at 211, 216–27; C. Warren, ‘Lawless Maritime Warfare’, (1940) 18 Foreign Affairs 424. Textbooks confirmed the continuity of international law despite the lawless interventions of belligerent states: Lauterpacht, Disputes (1940), supra note 13; Brierly, Law of Nations, supra note 13; G. Scelle, supra note 13. For reviews see responses by, e.g., W. Friedmann, ‘Textbook Myth on International Law’, (1941) 3(4) Modern Law Review 299; F. Deák, ‘International Law. By L. Oppenheim. Vol. II. Disputes, War and Neutrality. 6th ed. Edited by H. Lauterpacht. New York, London and Toronto: Longmans, Green & Co., 1940. Pp. xliv, 766. Index $17.50’, (1941) 35(2) AJIL 403, at 403–4; P. H. W., ‘The Law of Nations. By J.L. Brierly. Third edition. Oxford University Press 1942. Viii+272pp. (5s.)’, (1944) 26(3) BYIL 235; F. M. G., ‘The Law of Nations by J.L. Brierly’, (1944) 26(3/4) Journal of Comparative Legislation and International Law 86. Other prominent international lawyers in America and England also responded to the general perception of lawlessness and the end of international law among international lawyers: e.g., P. C. Jessup, ‘In Support of International Law’, (1940) 34 AJIL 505, at 505; F. N. Keen, et al., ‘The Future of International Law: Final Report by the Committee Appointed to Consider the Sources of International Law’, (1941) 27 Transactions of the Grotius Society 289, at 291, 302; P. Marshall Brown, ‘Changing Concepts of International Law’, (1940) 34 AJIL 503, at 504–5.
21 Schmitt, Concept of the Political, supra note 10, at 34–5.
22 Friedmann, supra note 20.
23 See, e.g., Lauterpacht, Disputes (1940), supra note 13; Brierly, Law of Nations, supra note 13; Scelle, supra note 13.
24 Both scholars nevertheless situate their wartime textbooks within the historical context of the fall of France: Lauterpacht, Disputes (1940), supra note 13, at v-vi; Brierly, Law of Nations, supra note 13, at 211–12.
25 For a general survey of some of the juridical questions surrounding the evolution of armistice in international legal thought see, e.g., Y. Dinstein, ‘Armistice’, MPEPIL, September 2015, available at opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e245 (last accessed 1 July 2020); Y. Dinstein, ‘Armistice Agreements’, in Y. Dinstein, War, Aggression and Self-Defence (2001), 44, at 44–51.
26 Armistice agreements arise in atypical circumstances of sovereign inequality, being a ‘convention entre belligérants’, and establish ‘unilatérale’ regimes or systems better described as ‘dispositifs’ or situations rather than as genuinely bilateral treaties in the ordinary juridical sense: G. G. Fitzmaurice, ‘The Juridical clauses of the Peace Treaties’, (1948) 73 RdC 259, at 260; R. Monaco, ‘Les conventions entre belligérents’, (1949) 75 RdC, 273, at 284–5.
27 The association of armistice with the ‘suspension of hostilities’ followed from the pre-1919 understanding confirmed by the language used in Arts. 36–41 of the Hague Regulations Respecting the Laws and Customs of War annexed to the 1899 Convention with Respect to the Laws and Customs of War by Land and to the 1907 Convention concerning the Laws and Customs of War on Land. Today, it is clear that the Hague Regulations apply to situations of ceasefire rather than armistice.
28 See, e.g., Dinstein (2001), supra note 25; Dinstein (2015), supra note 25.
29 Fitzmaurice, supra note 26; Monaco, supra note 26.
30 Arts. I and XXIV, Franco-German Armistice 1940, supra note 1; Arts. I and XXVI, Franco-Italian Armistice 1940, supra note 1. The preamble and final signatures to both agreements identify military commanders, including the ‘fully authorized plenipotentiaries of the French government’, as the authorized representative of the contracting states.
31 Ibid.
32 Eg., Fitzmaurice, supra note 26; Monaco, supra note 26.
33 For the renewed juridical interest in questions of state recognition at the end of war see, e.g., H. Lauterpacht, ‘Implied Recognition’, (1944) 21 BYIL 123.
34 Monaco, supra note 26, at 283–4: ‘Bien que les conventions entre belligérants soient stipulées pour realiser des buts politiques, et bien que le côté politique l’emporte souvent en cette matiére sur le côté technique, il ne faut pas oublier qu’ici on doit considerer seulement la structure juridique de ces conventions’ – ‘Although the agreements between belligerents are made to achieve political objectives, and although political interests often determine technical details, it must not be forgotten that here we must only consider the legal structure of such conventions’ [author’s translation].
35 Lauterpacht, Disputes (1940), supra note 13, at 435.
36 He referred, for example, to the ceasefire agreement of 11 November 1918 against Germany and the agreement of 28 January 1871 which ended, in Germany’s favour, the Franco-German War. Those agreements represent less controversial illustrations of the existing rules of armistice due to the historical character of the conflicts in question which resulted in armistice agreements which were similarly uncontroversial or reinforced the priorities of the liberal state: ibid., at 433–41.
37 Lauterpacht, Function of Law, supra note 2, at 442–4.
38 Lauterpacht, Life of Sir Hersch Lauterpacht, supra note 4, at 141–250.
39 Lauterpacht, Disputes (1940), supra note 13, at 556 or 566–72; Lauterpacht, Life of Sir Hersch Lauterpacht, supra note 4, at 135–6.
40 Lauterpacht, Disputes (1940), supra note 13, at v-vi.
41 Ibid., at 556.
42 Ibid.
43 Lauterpacht, Life of Sir Hersch Lauterpacht, supra note 4, at 103–7 and for details of Lauterpacht’s contributions to the ‘war-effort’, at 100–40.
44 R. M. W. Kempner, ‘The Enemy Alien Problem in the Present War’, (1940) 34 AJIL 443; E. Loewenfeld, ‘Status of Stateless Persons’, (1941) 27 Transactions of the Grotius Society 59.
45 The principal focus of Rafael Lemkin’s 1944 study of the Axis Occupation is the local laws within the relevant zones that followed, but remain separate to, the relevant bi-lateral agreements of relevance for international legal analysis: R. Lemkin, ‘Chapter XVIII: France’, in R. Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (1944), at 171.
46 R. Cassin, ‘Vichy or Free France?’, (1941) 20 Foreign Affairs 102; F. E. Oppenheimer, ‘Governments and Authorities in Exile’, (1942) 36 AJIL 568, at 572–5, 579.
47 E.g., Trading with the Enemy Act 1939 (UK); French Credits (British Banks), Hansard, 6 August 1940; C. Parry, ‘The Trading with the Enemy Act and the Definition of an Enemy’, (1941) 3(IV) MLR 161. For discussion of the effect of armistice on the property left in occupied France by French and foreign refugees who fled to unoccupied France see, e.g., M. Domke, ‘Problems of International Law in French Jurisprudence 1939–1941’, (1942) 36 AJIL 24, at 34–6.
48 E.g., H. W. Briggs, ‘Neglected Aspects of the Destroyer Deal’, (1940) 34 AJIL 569; P. Jessup, ‘The Transfer of Destroyers to Great Britain’, (1940) 34 AJIL 680.
49 Jessup, ibid., at 688; Q. Wright, ‘The Present Status of Neutrality’, (1940) 34(3) AJIL 391.
50 C. Eagleton, ‘The Needs of International Law’, (1940) 34 AJIL 699, at 702.
51 Ibid.
52 P. Jessup, ‘The Monroe Doctrine in 1940’, (1940) 34 AJIL 704, at 708–9.
53 Ibid.
54 Ibid., at 710.
55 Ibid., at 711.
56 Brierly, Law of Nations, supra note 13, at 252–3.
57 E.g., F.A. Mann, ‘The Present Legal Status of Germany’, (1947) 1 ILQ 314; H. Kelsen, ‘The Legal Status of Germany’, (1945) 39 AJIL 518; H. Kelsen, ‘Is a Peace Treaty with Germany Legally Possible and Politically Desirable?’, (1947) 41 APSR 1188; Lauterpacht, Disputes (1940), supra note 13, at 214, 552–5; H. S. Levie, ‘The Nature and Scope of the Armistice Agreement’, (1956) 50 AJIL 881; L. Preuss, ‘International Law in the constitutions of the Länder in the American Zone in Germany’, (1947) 44(4) AJIL 888; M. Rheinstein, ‘The Legal Status of Occupied Germany’, (1948) 3 Michigan Law Review 23.
58 Fitzmaurice, supra note 26; Monaco, supra note 26.
59 Eg., Fitzmaurice, ibid.; Monaco, ibid.; Levie, supra note 57; ‘In re Suarez’, (1943–1945) Annual Digest of Public International Law Cases 412 (see editorial comment by Lauterpacht confirming the temporary dimension of armistice and the concordance with the Court’s finding that Germany remained the enemy of France throughout occupation). Subsequent scholarship similarly presumes the illegality of the 1940 arrangements, see, e.g., Y. Arai-Takahashi, The Law of Occupation (2009), at 30–7; E. Benvenisti, The International Law of Occupation (2012), at 135–7, 140–2.
60 In one instance, France successfully defended its continuing right to the benefit of an insurance contract for requisition of French cargo by the British navy in August 1940 on the basis that Britain continued to qualify as the legal ally of France, given that the armistice agreement violated the mutual declaration of both states not to seek a separate peace: Societe Commerciale des Proudits du Petrole et Autres v. French State (Court of Appeal of Paris, 18 July 1945), 1946 ILR 192.
61 Act of Military Surrender, (Reims, France, 7 May 1945) between German High Command and Allied Expeditionary Forces and Soviet High Command (witnessed by French military representative) (‘1945 Surrender’); Declaration Regarding the Defeat of Germany and Assumption of Supreme Authority by Allied Powers (signed 5 June 1945, supplemented by additional requirements 20 September 1945) 60 Stat 1649 (‘1945 Berlin Declaration’); Protocol of the Proceedings of the Berlin (Potsdam) Conference (USSR, US and UK) (signed 1 August 1945) 2 Foreign Relations of the United States 1383 (‘Potsdam Protocol’).
62 The Potsdam Protocol, Allied occupation continued until 1955 and the Soviet military remained in East Germany for decades longer: Convention on the Settlement of Matters Arising out of the War and the Occupation between the UK, France, USA and the Federal Republic of Germany (signed 26 May 1952, amended by Schedule IV of the Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany 23 October 1954, entered into force 5 May 1955) 1656 UNTS 29. For discussion on the legal and political prospects for concluding a final peace with Germany see, e.g., Kelsen, ‘Peace Treaty’, supra note 57, at 1190.
63 Ibid.
64 G. W. Keeton et al., ‘The influence of international law on international conduct’, (1947) 33 Transactions of the Grotius Society 3, at 6.
65 Arendt, supra note 16.
66 Ibid.
67 Ibid., at 196–8.
68 C. Volk, Arendtian Constitutionalism: Law, Politics and the Order of Freedom (2015), 5–8; C. Volk, ‘From Nomos to Lex: Hannah Arendt on Law, Politics and Order’, (2010) 23 LJIL 759; H. Lindahl, ‘Give and Take: Arendt and the nomos of political’, (2006) 32(7) Philosophy and Social Criticism 881.
69 She famously observes the multiple connections between political disaster and the absence of adequate juridical intervention by states during the interwar period. The failure of the Versailles’ peace settlements to protect Europe’s minorities from persecution was obvious, for instance, because influential states ‘were neither willing nor able to overthrow the laws by which nation-states exist’ or redefine the abstract constitutional protections which bent in interwar Europe to the will of the nation, and premises her historical study on totalitarianism for new laws and guarantees for political exclusion: H. Arendt, The Origins of Totalitarianism (1950), at ix, 272–3. For a further example of the negative potential of her reflexive concept of law, Arendt’s famous euphemism, the ‘right to have rights’, explains the exclusionary logic of the eighteenth-century model of universal entitlement which restricts rights to citizens without further guarantee for inclusion within the political community: Origins, ibid., at 294–7, esp. at 295–6.
70 Ibid., at 279.
71 H. Arendt, ‘Introduction into Politics’, in H. Arendt, The Promise of Politics (2005), 93–200, esp. at 186–7.
72 Ibid., at 189.
73 Ibid., at 184.
74 Ibid. For further consideration of the Roman solution for war see, e.g., Arendt, Origins, supra note 69, at 202.
75 Schmitt, supra note 10.
76 Brierly, ‘Vital Interests’ (1944), supra note 2, at 56.
77 Lauterpacht, Function of Law, supra note 2, esp. at 149–64.
78 Ibid., at 446.
79 Arendt, Origins, supra note 69, at 77.
80 Arendt, Human Condition, supra note 16, at 182.
81 H. Arendt, ‘On Humanity in Dark Times: Thoughts about Lessing’, in H. Arendt, Men in Dark Times (1968), 3, at 12.
82 In her monograph-length critique of revolution, Arendt details her argument against the rhetoric of eighteenth century humanism: On Revolution, supra note 16, at 76–81. The gestural expressions of fraternité, the ‘high-flown phrases of the most exquisite pity’, flow ‘with passionate intensity, towards suffering man himself’ without listening to or asking questions of his group, or orchestrating meaningful change but rather, reveal a technique of violence. In the absence of genuine political concern for another, compassion or ‘[p]ity, taken as the spring of virtue, has proven to possess a greater capacity for cruelty than cruelty itself’, and reflects the catch-cry of the brief revolutionary government identified with the Paris Commune in May 1871: ‘Par pitié, par amour pour l’humanité, soyez inhumanins!’ [By pity, by love for humanity, be inhumane! (author’s translation)].
83 Arendt, Lessing, supra note 81, at 14.
84 Ibid., at 16.
85 Ibid.
86 Ibid.
87 Ibid., at 25.
88 Ibid., at 14.
89 Brierly, Vital Interests (1944), supra note 2, at 56.
90 H. Arendt, ‘Thoughts on Politics and Revolution: A Commentary’, in Crises of the Republic (1972), 199, at 230–1.
91 Brierly, Vital Interests (1944), supra note 2, at 51.
92 The ‘fifth column’ and encouragement by the Ministry of Information for civic retaliation to it by formation of a ‘silent column’, to ensure the secrecy of all war-sensitive information, referred to the widespread belief that there were enemy agents within the population relaying important information to Germany. The ‘fifth column’ scare peaked in May–June 1940: see, e.g., J. Fox, ‘Careless Talk: Tensions within British Domestic Propaganda during the Second World War’, (2012) 51(4) Journal of British Studies 936.
93 Arendt, Human Condition, supra note 16, at 26.
94 Ibid., at 85.
95 Ibid., at 85.
96 C. Schmitt, Theory of the Partisan (1962), 85.