a) Background

Johann Caspar Bluntschli was an eminent Swiss lawyer and Professor of Law who after being elected Professor of Law at Heidelberg University participated in the forefront of international public law and the dialogue on the institutional and conceptual framework of that area of law. Bluntschli was a Swiss jurist and originally a politician. Before leaving the country for political reasons as a liberal, he pioneered work in civil law, authoring a code for the Canton of Zürich. Codification of law was at his heart, and eventually influenced his work on international law to which he turned in Heidelberg. His pioneering work served as the foundation for the laws of war enacted at the Hague peace conference in 1899 and 1907. Bluntschli developed a theory of the nation-state, viewing the state as an organic system similar to a living organism, going through a life circle of birth, growth and death. Based on this view he argued for the unification of nations, such as Germany and Italy, the small constituent parts of which he regarded as no longer significant or capable functioning independently, but which would survive as part of a greater whole. He also favored the unification of Protestant Churches; the one unified church system as a positive move in bringing balance and harmony to religion.

Bluntschli’s work shows a most interesting and imaginative mix of writings on Swiss, in particular the laws of the Canton of Zurich, as well as international law. Various aspects of his biography are usually omitted. He was an active and important free mason in Germany and again participated in Germany’s political process. Bluntschli was part of an international network of international public law professors who corresponded intensely on the development of international public law. His major book on international public law was translated into English and was used by the future President Woodraw Wilson as a basis for his teaching whilst Professor of International Relations at Princeton University . Bluntschli was the author of the codification of the substantive civil law of the Canton of Zurich, laying the conceptual groundwork for the later codifications of the Swiss Code of Obligation and the Swiss Civil Code as well as other codes in neighbouring countries. What is even less known is that Bluntschli used his experience in codification of Swiss law in a project with the international political scientist and international public lawyer Francis Lieber at Columbia Law School in New York. They had a joint plan to codify the basic principles of international public law.

The text at hand is an excerpt from a larger publication with the title “Die Organisation des europäischen Staatenvereins” (The organisation of the European Association of States). The text is an early example of a Swiss lawyer – on Swiss soil and outside of Switzerland – making a major contribution to European thought towards a project of integration and unification of Europe. Denis de Rougemont in that context mentions among others Jean Jacques Rousseau, Johannes von Mueller, Madame de Staël, Benjamin Constant Proudhon and the later contributions of intellectuals and organisations after the turn of the 19th century to an idea of European organization and unification. In the text at hand Bluntschli was inspired by the Swiss example and was deeply convinced, that the Swiss nation has a high degree of an “international character” and that such pluralistic unions are the only forms in which peace in Europe could be brought about. If such a vision could be realized in the future, according to Bluntschli, Switzerland should insert itself into greater Europe.

b) Summary

Under the heading of the “organization of a European association of states” Bluntschli deals with the plan of his colleague Lorimer and outlines his own proposal for a federation of states in Europe.

Regarding Lorimer’s plan, Bluntschli states that Leibnitz, Rousseau and Kant all attempted to safeguard peace in Europe through an effective legal system. Thereby, their proposals did not go beyond the plan of a European Congress. Their progress consisted in the fact that the usual congresses after war lead to a continuing congress, which should preventively guard against war. It was a model of system of states of absolutism of the seventeenth and eighteenth centuries.

In the meantime, the representative system of governments had replaced early forms of absolute monarchy, in which the unity of states in absolutism were replaced by representative governments. The major drawback was that these entities were unable to act, if there was no consensus of the representative bodies. There was a clear need to find new forms, which would also see that the rights of the peoples are guarded as an essential element of the international association of European states.

Lorimer proposed a new plan which was published in the “Revue de Droit international”, Geneva 1877, sc 2 “Le problème final du droit international”. Bluntschli agrees with Lorimer’s basic arguments that an organisation should respect the principle of representation and the rights of the people. Moreover, he agreed with Lorimer that an international organization should be tasked with going beyond the status quo and not only acknowledge but also further the timely changes of the participating states.

Bluntschli was against Lorimer’s idea to transfer the idea of the anglo-american house of representative to the European association of the states. Bluntschli argues, that the United States are, regardless of the relative independence of its member states, different in certain respects; the country’s major difference being that there was an American people and there was no European people. In the same manner, the “Universalmonarchie” (universal monarchy) in Europe in a manner of the House of Habsburg and later the house of Bourbon and Napoleon I was doomed to fail. In the same manner also the proposal of the “Europäische Gesamtrepublik” (European Republic”) would encounter the same difficulties.

Under Proposal for a federation of state Bluntschli brings forward his own proposal. His basic assumption and the major difficulty to overcome is that the independence and liberty of the associated states may not be touched. Therefore, states can cooperate for joint interests and purposes but they will never of their free will subject themselves to a supranational constitutional power. He, therefore, argues for a more modest and a less pompous organisation than a “Reich” or a “Federal State”.

He argues that the feasibility of any new organisation is greater, the closer it is to the existing states and their relations at the time. He lists approximately fifteen existing groups of states to be eligible as possible political entities close to his proposal as follows. These fifteen states are the natural members of a European association of states. They all have equal rights to representation in the deciding organs of the association, have a right to express their opinion, to consult, to dialogue and to vote. He attributes to the participating “Grossmächte” (Great Powers) a separate role and expects them based upon their experiences and organisations along with their financial and military resources to be responsible for “Gewaltsame Exekution” (execution by force). In view of these increased duties and in view of their increased powers, “Grossmächte” in the organisation should have a representation and a voting power, which is double compared to the voices of the remaining states. In order to determine the adequate organisation, the tasks to be dealt with have to be identified.

According to Bluntschli, the following functions are to be distinguished. It is a task of international public law to decide on the controlling legal norms. In order to take into account, the unequal importance and weight, he proposes a European Council of the Executives. He also proposes to accept French, English and German as official languages, which are to be translated into other languages, just as it is in Switzerland and in other international associations. Bluntschli addresses, as to how the issues of “Grosser Politik” (big politics) and the merely international and traditional matters should be organised. In the text he proposes an allocation of powers with respect to the administration and enforcement on the European level in detail with categories of decision and in particular with respect to the exceptional situation, in which enforcement proceedings are necessary against a government of a state. In those cases a preparation of the “Grossmächte” is needed. In that context he proposes to form an Enforcement Council as college of the Grossmächte. According to Bluntschli with this instrument the possibility of war is to a large extent excluded.

He names this organisation a Confederation, which corresponds to the original plan of Henry IV and Sullys and differs from the European proposal of Abbé Saint Pierre and of his friend Lorimer. Bluntschli clearly favoured continuing a French tradition. Bluntschli was optimistic, that the leaders in the states will be able to devise these proposals. He argues that this is much simpler than the Nation of the “Deutsches Reich”; the big danger of a hegemony of one people over others would no longer exist. Bluntschli states at the end that the ambition of his text is not theoretical but practical. Only magnanimous and humane statesmen may fulfil this major task.