Too difficult to protect: a history of the 1934 Monaco Draft and the problem of territory for international humanitarian law

Abstract

‘Blurry’, ‘indeterminate’, and ‘elastic’ are terms used to describe the spatial, legal, and categorical ambiguities that have characterized the war–law–space nexus since September 11th. I argue here that these same qualities were central to the lawmaking process eighty years ago in the case of the Monaco Draft, a draft convention that proposed rules to establish hospital and safety towns, zones, and localities in order to strengthen international humanitarian law. This paper reviews the Monaco Draft’s spatial proposals from their conception in 1934 and their discussion at three expert consultations during the 1930s to their incorporation into the 1949 Geneva Conventions as nonbinding recommendations. An analysis of the conversations among experts charged with examining the proposed rules reveals how the interplay of territorial ideology with the more contingent realities of the battlefield produced uncertainties that conditioned the law. This was further complicated by the law’s customary basis, which makes untested legal measures especially risky. The broader significance of this research is that it presents a historical case showing the problematic nature of territory, uncertainty, and materializing norms as a continuing feature of humanitarian law.