In remarking upon the international legal status of lands acquired by the British Empire, John Westlake, in many ways the quintessential Victorian jurist, declared India to be ‘a peculiar case of conquest, operating by assumption and acquiescence’.^[1] He contrasted this against what we can assume is a ‘non-peculiar case of conquest’ in the form of partitioned Polish-Lithuanian Commonwealth which he described as being accomplished through ‘suppression’.^[2] By expounding upon imperial rule in such a convoluted and euphemistic way, Westlake expressed a sentiment common in Victorian Britain that colonial India could be best described as an ‘unfinished conquest’. This was due to the complicated patterns of overlapping authorities via subordinated Princely States and byzantine questions of which rights the British state had inherited from the chartered companies, themselves complex hybrid juridical innovations responsible for the Sub-Continent’s initial colonisation.^[3] Such convolution and euphemism was accomplished through an effective foil via Russia, Prussia, and Austria’s extinguishing of the Commonwealth’s sovereign personality via a series of Partitions in 1772, 1793, and 1795. While the Russian, Prussian, and Austrian Empires according to Westlake embodied a feudalistic brutality that delighted in conquest for the stake of conquest, by contrast, Britain’s litigious, procedure-bounded, and abstracted imperialism was the hallmark of its claim to ‘civilisation’.

Such British claims to the superiority of its maritime, liberal, and commerce model of empire (in contrast to the dynastic militraristic expansionism that persisted in the European continent) were in no way invented by Westlake. As England largely withdrew from direct military competition with its continental rivals in the seventeenth and eighteenth centuries, a development intimately linked to its capitalist transition, it fashioned itself as defender of the European states most at risk from expanding land empires. The influence of this stance on the development of international law is difficult to overstate. As he crafted his renowned 1758 treatise The Law of Nations, arguably the most influential international legal text in history, the Swiss jurist Emer de Vattel celebrated Britain as the type of power that could best guarantee the survival of polities such as his native Canton of  Neuchâtel.^[4] Both inside and outside Britain, this juridical stance against feudal absolutist conquest, coupled with implicit acceptance of liberal empire, was mobilised extensively to condemn the Partitions of the Polish-Lithuanian Commonwealth. In depiciting the Partitions, for Sir James Mackintosh, arguably the father of the ‘Standard of Civilisation’ and a onetime colonial judge in India: ‘[c]onquest and extensive empire are among the greatest evils (…). To destroy the independence of a people, is to annihilate a great assemblage of intellectual and moral qualities, forming the character of a nation and distinguishing it from other communities’.^[5]

While Mackintosh’s anti-conquest proclamations would not acquire status in positive international law until the postwar era, the sentiment behind it was a rallying call, especially in the lands of the former Polish-Lithuanian Commonwealth. According to Victor Kattan, the former Commonwealth can be viewed as the umbilicus of self-determination that links the late-eighteenth century ‘Age of Revolution’ to the post-First World War proclamations of Woodrow Wilson and Vladimir Lenin.^[6] For both purveyors of Britain’s ‘blue water’ imperialism and Polish (as well as Belarusian, Lithuanian, and Ukrainian) nationalists, there could hardly be a better common enemy than the type of feudal absolutist conquest practiced by the empires of Russia, Prussia, and Austria. Purportedly universal legalistic proclaimations that opposed self-determination to conquest provided a means of linking these actors despite their very different conditions and, consequently, very different interests. 

My purpose in showcasing this tangled morass of juridical-cum-normative complications across time and space, is to advance the position that Rosa Luxemburg has untapped potential for aiding international lawyers who would seek to decode these conundrums. In beginning with the acquisition of territory by conquest, as the nineteenth and twentieth centuries progressed, this came to be viewed as illegitimate in its direct contradiction of the consent of the governed as the true basis for sovereign autonomy. While widespread state practice guaranteed its validity with the canon of international legal positivistism, there was nevertheless a widespread sceptical view that, so long as this ‘right of conquest’ remained acceptable, international law would forever be ‘a primitive or defective form of law’.^[7] Enlivened by periodic uprisings against the partitioning powers, the Polish cause sustained this critique. However, against not only liberals but also many of her fellow Marxists, Rosa was persistently iconoclastic in her rejection of any stance that Poland must be restored in the name of the ‘right to self-determination’.    

As expressed through her writings on the ‘national question’, Rosa argued that a ‘right to self-determination’ would only embolden national chauvinism and create divisions especially where they concerned minorities with any new ‘self-determined’ entity.^[8] While much can be ascribed to ethnic tensions within the lands of a former Commonwealth that was not even remotely exclusively Polish, something Rosa was intimately familiar with given her Jewish heritage, a broader consideration was how this question of ‘conquest’ versus ‘self-determination’ fundamentally mischaracterised the nature of domination under capitalism. As most famously expressed in The Accumulation of Capital, for Rosa, the nature of imperialism was fundamentally a matter of capitalism sustaining itself on the destruction of non-capitalist forms of life. This entailed far more than simply claiming territories explicitly taken by force (never a guarantee in and of itself that a new mode of social relations would be imposed), but rather involved a complex array of rules and institutions where illusions of agency only enmeshed its subjects within ever intrusive webs of dependence. 

With this in mind, it is worthwhile to return to Westlake’s contrast between partitioned Poland and British India, and his insinuation that a distanced maze of juridical abstraction somehow made the latter more ‘civilised’. In adopting Rosa’s perspective, it was through this juridical maze that imperialism could function as imperialism, and to elevate it above more viscerally dramatic modes of intrusion (such as the Partitions) on a normative hierarchy was central to its ideological operation. As such, the moralisation of international legal judgment of the Partitions (a pre-capitalist mode of feudal-absolutist geopolitical accumulation^[9]) could be understood as yet another instance of capitalist imperialism sustaining itself on non-capitalist social relations.  For Rosa, independence via the ‘right to self-determination’ would do nothing to alter this fundamental state of affairs. Though her theories of both self-determination and imperialism can, and should, be subject to scrutiny, a broad message of her work rings true for today’s international lawyers — domination is more than conquest! In an era where declining respect for the celebrated ban on conquest is occurring in a most viscerally dramatic way with Vladimir Putin’s ongoing war on Ukraine, remembering this basic premise is as difficult as it is essential.

^[1] John Westlake, Chapters on the Principles of International Law (Cambridge University Press 1894), at 209.

^[2] Ibid. 

^[3] Sudipta Sen, ‘Unfinished Conquest: Residual Sovereignty and the Legal Foundations of the British Empire in India’, (2012) 9 Law, Culture, and the Humanities 227. 

^[4] Richard Whatmore, ‘Vattel, Britain, and Peace in Europe’ (2010) 31 Grotiana 85.

^[5] James Mackintosh, ‘An Account of the Partition of Poland [1822]’, in Miscellaneous Works of the Right and Honourable Sir James Mackintosh (Longmans 1846) 198, at 209.

^[6] Victor Kattan, To Consent or Revolt? European Public Law, the Three Partitions of Poland (1772, 1793, and 1795) and the Birth of National Self-Determination, (2015) 17 Journal of the History of International Law 247, at 251.

^[7] Sharon Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (Oxford University Press 1996), at 9.

^[8] Rosa Luxemburg, The National Question: Selected Writings (Monthly Review Press 1976).

^[9] Benno Teschke, The Myth of 1648: Class, Geopolitics, and the Making of Modern International Relations  (Verso 2003), at 236-238.