Contenu du sommaire : Entre guerres et ruptures, la protection dans les relations internationales ? I

The ancestor of diplomatic protection: the reprisals of ancient law (XIIth-XVIIth centuries). Diplomatic protection specifically aims to the defence by a state of its citizens' private interests wrongfully infringed abroad. This legal institution, which took shape in the XXth century in the wake of XIXth century practice, is therefore distinct from the representation of the interests of foreign states by a protecting power as dealt with in the present volume. On the other hand, it is genetically linked to reprisals formerly practiced up to the XVIIIth century, which in fact fulfilled the function of diplomatic protection insomuch as they allowed the injured individual himself, after duly obtaining letters of reprisal from his home state, to « take back » the equivalent of his loss at the expense of the entire population of the state, the state having committed a denial of justice.

Princely protection in the early modern age (XVIIth-XVIIIth centuries), a source of diplomatic protection. The protection that princes in early modern history gave to foreign powers or foreigners offers some likeness with contemporary protection. The examples given here suggest an alternative to suzerainty which allows an escape from traditional protection, seen as too weak or, on the contrary, too dangerous. There is also a form of diplomatic delegation for a political unity which is not recognised on the international scene. We see also the strength of religious solidarity, in spite of the lighter weight of religious interest in international affairs after 1648.

The protection of foreign interests: its origin and significance
The protection of foreign interests arose from a specific practice in international law in the XIXth century, which consisted of various activities by the agent of a state on behalf of foreigners abroad, at the request of the national state and with the consent of the local state. Thus, the protection of foreign interests involved a triangular relationship. Such protection stemmed from an older practice, by which a state used the services of a consul or another state in the absence of relations between the national state of the protected persons and the local state. But its specificity was linked to particular context: whenever a severance of diplomatic and consular relations occurred, it became indeed necessary for the national state to resort to the assistance of a protecting power, in time of war as well as in time of peace.

At the legal origins of the representation of interests between states (XIXth-XXth centuries). This contribution aims to show, after preliminary terminological details, that initially, within a rather informal process, an association existed between the representation of interests between states and the legal status of permanent neutrality. This supposed a context of war in which belligerents had broken off diplomatic relations. The first significant case of such a process appeared with the Franco-Prussian conflict in 1870, and was confirmed during the two World Wars of the XXth century. However, the relation of protection and representation of interests still remains today largely based on the mandate of the protecting power, therefore on a bilateral and contractual relationship, more than on an uncertain international custom and a deficient conventional law.

Spain as a protecting power (late XIXth century – early XXIe century). The role played by Spain in the relations of states on the verge of a diplomatic crisis has been just as essential as the role of Switzerland. Spain, a protecting power for a very transient period at the end of the XIXth century, was soon to develop the backing of belligerent parties during the First World War. Competing with other neutral countries, and in the mistaken hope that it could host the Peace conference, the reward Spain received for such a stance took only the form of polite thanks from the victors. During the Second World War, Spain gained a foremost position as a protecting power for the exclusive benefit of the assailants. Decolonization also paved the way for a few protecting mandates. Since 1975, the diplomatic protecting power of Spain seems to have settled in places where the country used to have been much present throughout history, like Latin America, North Africa or the Middle East. Without any presence, there cannot be any protection.

Successes and limits of protecting powers: the case of civilian and military prisoners in Western France during the First World War. During the First World War, the neutral nations took on different missions at diplomatic or humanitarian level. One of their most concrete interventions was assistance to prisoners. Many Swiss or American delegates travelled to each prisoner or civil internee camp in the west of France, in order to check the application of the conventional clauses negotiated before or during the conflict. They came up against the suspicion or hostility of the different national representatives of imprisonment, and discovered the difficulties of the neutral role when it was confronted by a context of such extreme violence that the belligerents considered neutrality itself to be unthinkable.

In the absence of diplomatic relations and protecting powers: the protection of Soviet interests during the so-called transitional period. The seizure of power by the Bolsheviks in Russia led to a deep destabilisation of the international system to which the powers responded with diplomatic boycotts and interventions. At first, when they still had hopes of a quick expansion of a worldwide revolution symbolised by the creation of the Communist International, the Soviet leaders did not worry much about their diplomatic isolation and the absence of a protecting power. However, the proletarian revolution failed everywhere outside Russia, and in the autumn of 1919, Soviet Russia, which was trying to establish contact with its nationals in foreign territories and to recover the assets of the Russian State, decided to use the Russian Society of the Red Cross as a substitute for a protecting power.

An unusual protecting power: the Wehrlin « mission » of the icrc in Moscow (1920-1938) How was the International Committee of the Red Cross (icrc), as a protecting power, able to defend Swiss interests in the ussr from 1921 to 1938? This unusual case of consular protection assured by a humanitarian organisation is at the centre of a publication of documents which both authors are preparing. Here, they concentrate their efforts on the key moments of the establishment and withdrawal of this « quasi consular » mission. This mission was the result of a convergence of interests, as much for the icrc or Switzerland as for the ussr, which obtained in return a symmetrical mission from the Soviet Red Cross in Switzerland. In conclusion, the authors attempt to understand the strategic error of the icrc, which excluded itself from the humanitarian scene in the East when the war was imminent, in deciding alone to remove its mission from Moscow in 1937.