Justice among Nations: A History of International Law 9780674726543

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Justice among Nations

Justice among Nations A History of International Law  Stephen C. Neff

Cambridge, Massachusetts London, England 2014

Copyright © 2014 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America An excerpt from Immanuel Kant, “Theory and Practice,” in Kant, Political Writings, 2nd ed., ed. Hans Reiss, trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1991), 91, has been reprinted as an epigraph with the permission of Cambridge University Press. Library of Congress Cataloging-in-Publication Data Neff, Stephen C. Justice among nations : a history of international law / Stephen C. Neff. pages cm Includes bibliographical references and index. ISBN 978- 0- 674-72529- 4 (alk. paper) 1. International law—History. I. Title. KZ1242.N44 2014 341—dc23 2013018438

To the fond memory of my father, John C . N e f f,

who made so many things possible. I wish he were here.

Contents

Acknowledgments ix

Introduction 1

I Law and Morality Abroad (to ca. ad 1550) 5 1. Doing Justice to Others 9 2. Keeping Kings in Check 50 3. New Worlds and Their Challenges 92

II Reason and Its Rivals (ca. 1550–1815) 137 4. Putting Nature and Nations Asunder 5. Of Spiders and Bees 179

III A Positive Century (1815–1914) 215 6. Breaking with the Past 221 7. Dissident Voices

260

8. In Full Flower 298

143

viii

Contents

IV Between Yesterday and Tomorrow (1914– ) 341 9. Dreams Born and Shattered 10. Building Anew

395

11. Shadows across the Path

Conclusion

Notes

481

485

Bibliographic Essay 561 Index 603

345

439

Acknowledgments

I am especially grateful for the hospitality of George Washington University School of Law, where I had the inestimable privilege to be a Visiting Scholar during the major part of the research for this work, in 2009–10. I am similarly grateful to my own institution, the University of Edinburgh School of Law, for granting the period of leave. My deepest thanks also go to that most magnificent resource, the National Library of Scotland. Immense gratitude for assistance and inspiration of sundry kinds go (alphabetically) to the following: Kenneth Anderson, Christine Bell, Alan Boyle, Douglas Brodie, Stephanie Carvin, Michael and Linda Cosgrove, Steve Charnowitz, Paul J. du Plessis, Thomas Giegerich, William Gilmore, Peter Haggenmacher, James Harrison, Susan Karamanian, Carl Landauer, Euan MacDonald, Linda Mathison, Alexander McCall Smith, Sean Murphy, Cian O’Driscoll, Dinah Shelton, Frederick Shiels, Ralph Steinhardt, Simonetta Stirling, James Whitman, Arthur Wilmarth, and John Fabian Witt. A very special thanks goes to Kathleen McDermott at Harvard University Press, for her unfailing support, and even enthusiasm, for what some might think a quixotic enterprise. For editorial assistance, my thanks go to Kasey McCall-Smith. For assistance with German translations, I am particularly indebted to Simonetta Stirling and Rebecca Zahn, and to Simonetta Stirling for Italian. For proofreading par excellence (and so much else besides), my deepest gratitude goes to my wife, Nancy. Finally, it should be noted that this work is liberally suff used by the spirits of two great scholars and fine men whose parting is much lamented: Richard B. Lillich (1933–96) and Daniel J. Boorstin (1914–2004).

Nowhere does human nature appear less admirable than in the relationships which exist between peoples. —Immanuel Kant

[J]ust as in one state or province law is introduced by custom, so among the human race as a whole it was possible for laws to be introduced by the habitual conduct of nations. —Francisco Suárez

Introduction

eorge Washington may not have chopped down a cherry tree, but recent evidence has uncovered a misdeed of a different, and perhaps more serious, character: a failure to return two books borrowed from the New York Society Library in October 1789. Moreover, there is no record of a gallant confession of wrongdoing. By way of mitigation, it must be admitted that Washington was a busy man at the time, having recently been installed as the first president of the United States. When the scandal was exposed (in 2010), the staff at Mount Vernon hastened to make amends by providing replacement volumes to the library. The affair attracted some public attention by virtue of the accumulated fine for late return—estimated by some at $300,000. Less notice was taken of what the books were. One was a volume of British House of Commons debates. The other was a book called The Law of Nations, by a Swiss writer named Emmerich de Vattel. It is hard to say which of the two tomes was the livelier read. In the House of Commons debates, there would have been some of the oratorical flair characteristic of that eloquent age. But there was flair, too—of an intellectual kind—in Vattel’s treatise. His Law of Nations, written in 1757, had the distinction of being the first book on international law to be written for a general audience—if not quite for the person in the street, then at least for persons concerned with statecraft generally. In marked contrast to anything that had gone before, Vattel’s book was a literary gem—written in a sparkling style, simple and elegant throughout. Vattel, a working diplomat himself, explicitly hoped that his exposition would prove useful to men of affairs, dealing with real-world problems, and not merely to moral philosophers.

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Introduction

With Washington as one of his readers, he could claim some deserved satisfaction on this point. Vattel may have been the first person to bring international law to a large lay audience. But his subject was very far from new at the time that he wrote. In terms of practices such as treaty making or the according of certain legal privileges to envoys, international law extends just about as far backward as the historical record itself. If, however, we look for something rather more demanding—such as a systematic corpus of rules governing relations between states in general—then we must look to somewhat more recent times, to the first millennium bc and the early centuries of the Christian era. By any measure, however, the subject is a hoary one. According to the standard definition, international law is the body of law governing relations between states. To my way of thinking, though, that is a rather dry-sounding summation—and hardly adequate either. For one thing, the idea of a body of law regulating relations between independent and juridically equal states became applicable only very late in history, in the seventeenth century. But ideas of justice in international relations go back a great deal further—practically as far as recorded history itself. This history is, accordingly, an exploration of the various ways in which conceptions of justice have played a part on the world stage. In describing the subject to beginning students, I prefer to characterize it as the scientific study of the emergence of order out of chaos. How is it possible— even in theory, let alone in practice—to have a legal “system” of any kind between states when there is no ruler to promulgate it? Where does it come from? And why is it obeyed? International law is not so much a list of rules, as a response to the challenge of devising answers to these befuddling queries. This book may therefore be described as the story of the search for answers to these questions (and similar ones) over the course of human history. Our concern will not be so much with the actual content of that law— which we can safely leave in the hands of professional lawyers—as with the general nature and character of it, how it has been made, how it has been interpreted, how it has been applied in practice, and, above all, with how the answers given to these basic questions have changed over the years. It will be seen that, over the course of its long history, international law has been subjected to reverend worship, constructive criticism, scornful dismissal, and just about every fate in between.

Introduction

3

It would be a great error to think of international law as a single, unitary phenomenon—like a ship sailing through different seas and weathering various storms more or less intact. On our voyage, the features of the ship itself will be constantly changing in character. This history is about that ship—the venerable “S.S. International Law,” if you will—and the many refittings that it has undergone in the course of its adventures. It is a remarkable journey, which has been surprisingly little chronicled. The present work is intended to put that to rights. It might be better to shift metaphors and instead think of international law as analogous to a river—perpetually in flow, but also constantly wearing away at its banks, changing shape, depositing silt here and stirring it up there, sometimes in flood, and sometimes reduced to a series of trickles through separate channels. And sometimes, too, breaking free of its channel altogether and taking a new path to its (vaguely defined) destination. International law indeed has, through part of its long history, been regarded as an intellectual feature of nature itself, to be accepted and understood—and obeyed—as best can be done by frail humans. At other times, humans have fancied themselves in the role of hydraulic engineers, bending nature to the will of man. Sometimes, in short, international law has been regarded as something to be “found,” and at other times as something to be “made.” This discussion cannot be a comprehensive history of all international legal doctrines and practices through the whole of history. That would put far too great a strain on the patience of both writer and audience (and on the sanity of at least one of these). Your author, though mild mannered in many respects, has been stern and ruthless in the selectivity of topics, doctrines, and incidents to be covered. As a meek defense, it can only be said that every chapter threatened menacingly to blow up into a book of its own. Selectivity was a desperate response but an inevitable one, too. Professional lawyers will be quick to spot neglect of their specialist areas. Diplomatic law, for example, will not receive much in the way of detailed consideration. The law of the sea will also receive less attention than is ideal. Other areas that receive little treatment include state succession, trade and investment law, and environmental law. There is little in detail on the law on the conduct of war (as rich a field as that is). International organizations will not receive treatment in depth, nor will collective-security questions, or regional systems. Adherents of the various contending schools of thought will undoubtedly find

4

Introduction

their own beliefs treated at too little length and with too little reverence. They will be right on the first count, but I hope not on the second. The task, instead, is to trace the broad contours of the history of international law from its dawn to the present day—for lay readers as well as lawyers. For the benefit of laypersons, the book is animated throughout by a rigorous presumption that the reader will have no prior legal knowledge or training. The history of international law is too important—not to say too interesting—to leave it as the property of a professional elite. Moreover, that professional elite has been scandalously negligent for too long in exploring its history. Lay readers often fear (with fair reason) that the professional jargon of the lawyers will pummel them into incomprehension. That fear is groundless here. Technical terminology is eschewed wherever possible—and, where necessary, is explained as it appears. Oddly, the more serious problem is that certain important trends or schools of thought have no accepted labels at all—a telling indication of the extraordinary neglect of this subject in the past. In such instances, simple descriptive labels will supplied, and they will be carefully identified as they arise. The story is basically narrative and chronological. The first part, taking us to about 1550, traces the evolution of the various pragmatic rules devised in various ancient civilizations. It then looks at the European Middle Ages and the Islamic world, and on to wider horizons, surveying the various legal issues presented by the discovery, conquest, and settlement of the New World. The second part, covering from ca. 1550 to 1815, relates the birth of international law in its modern conception, as a law actually made by states (at least in part), in addition to being a law that is merely applicable to states. The third part covers the nineteenth century, or more precisely the period from 1815 to 1914—which is, remarkably, a much neglected part of the history of international law. But it was an immensely creative time, marked by the emergence of the various rival schools of thought that continue to exist today. The fourth part covers the twentieth and (thus far) twenty-first centuries, with their many novel challenges and innovations—and tragedies. More broadly and briefly, our story is of the quest, throughout human history, to bring order and stability to international relations on the basis of the (or at least a) rule of law. It is the story, in short, of one of the greatest endeavors—both intellectual and practical—of the human species.

I Law and Mor ality Abroad (to ca. ad 1550)

[T]here really is . . . a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other. —Aristotle

 In Greek mythology, Chaos was the first of the gods. We have Hesiod’s weighty authority for this, but, in the context of international affairs, we could have guessed it in any event. In the luxuriant pantheons of ancient peoples, we search in vain for a god or goddess of international law. There is no shortage of deities who are devoted to justice, either in a general sense or in specialized areas, such as oaths or contracts. But there was a conspicuous, and apparently universal, absence of gods or goddesses who were guardians of justice between independent nations. If that gap was to be filled, then the peoples of the world were going to have to do it—somehow or other—by themselves. It therefore appears all the more striking that glimmers of international law can be discerned nearly as far back as historical records will take us. The international law in question was, to be sure, threadbare in the extreme by our more demanding later standards. It was an assemblage of practices and not an expression of any set of deep-seated general principles. In particular, three areas of state practice were especially prominent. First was treaty making. There was a very general concern and expectation that treaties, once solemnly concluded, must be scrupulously adhered to. Second was diplomatic relations—especially the according of certain privileges and immunities to envoys dispatched on official missions from foreign powers. Third was warfare. There was a general, if somewhat vague, belief that wars should be undertaken only if there is a just cause for them. And in certain contexts at least, there were sometimes rules—or at least expectations—that certain restraints on violence would be observed. Not until later—and in its fullest form, much later—was there any conception of a systematic body of principles covering all aspects of international relations. Only when that occurred did it become possible to apply international law to new and unforeseen situations. The first moves in this direction were taken in ancient China, in the preimperial period. But the decisive step came from the Mediterranean world, where the civilizations of

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Greece and Rome devised a body of principles known as natural law. This was a body of law that was truly universal in scope and application, without regard to race, religion, region, or language. Medieval Europe became a legatee of this crucial invention, resulting in a vision—if not quite a reality—of a harmonious system of states living according to something that could fairly be called a rule of law. The vision of a universal rule of law between states was put to a severe test in the context of relations between Christian and Muslim states in the Mediterranean region beginning in the eleventh century. A further challenge followed in the age of exploration in the fifteenth and sixteenth centuries, when European civilization expanded into the Indian Ocean and Far East and, more spectacularly, into the Western Hemisphere. It cannot be said that the vision of a universal natural law proved altogether equal to these challenges. But remarkably, it cannot be said to have utterly failed them either. Through all of these vicissitudes, the basic idea of justice and a rule of law between nations managed to survive. All things considered, it was a remarkable feat.

chapter one

Doing Justice to Others

he abduction of Helen of Troy was the archetypal example of a wrongful act that led to an outbreak of war. A lawyer might quibble that, strictly speaking, it was not the face itself that “launched a thousand ships,” but rather the unlawful taking. In any event, though, the thrilling tale belongs (alas) to legend and not to history. More firmly in the realm of fact—if less resplendent as literature—was an event in the late fift h century bc, related by the Roman historian Livy. It was a period of Roman history (long before there was a Roman Empire) marked by deep political and social conflict between the patrician and plebeian orders. This disunity naturally impaired the fledgling state’s ability to present a united face to actual or potential enemies abroad. But an incident in 438 or 437 bc had the effect of instantly uniting the Roman people against the neighboring state of Veii. In that year, the ruler of Veii, Lars Tolumnius, ordered the murder of four envoys sent to him from Rome. This deed was described by Livy not merely as an act of “unspeakable brutality” but also as an egregious violation of “the law of nations (ius gentium).” The Roman people—plebeian and patrician alike—were as one in their outrage, and war was inevitable. The result was a conflict of some twelve years’ duration, eventuating in a Roman victory (without the assistance of a wooden horse). Perhaps there would have been war between the two states anyway, sparked by a different incident of some kind. There was, though, a general belief in the ancient world—not merely in Italy or the Mediterranean area—that there must be a precipitating event of some kind. A mere general feeling of hostility was not regarded as sufficient for the launching of a war. There had to be some kind of just cause—or, at a minimum, a semblance of one. Moreover, this belief

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applied to wars on the largest of scales as well as on the smallest. When Alexander the Great embarked on his epic conquest of the Persian Empire (and beyond) in the fourth century bc, he went armed with a legal justification, in addition to his troops and weapons. He was, at least ostensibly, avenging the Persian invasion of Greece of a century and a half earlier. There was no shortage of skepticism as to the validity of this justification. But the crucial point is that it was generally seen to be necessary for even the greatest of conquerors to have justice on their side, as well as the god of battles. How this general feeling came to take hold, and to be so widely held, is shrouded in mystery to the present day. Some have asserted the existence of a universal and biologically innate sense of justice in humans, analogous to the universal religious sensibility posited by some anthropologists. Certain schools of thought about natural law have been, and continue to be, based on this thesis. These claims of a universal consciousness of justice—“written in the hearts of men,” as sometimes asserted—may well be true. But it is also likely to have been true that this innate instinct of justice has required the presence of certain social, economic, political, and religious conditions to flourish to its fullest extent. It seems likely that, in the beginning, this sense of justice had free play only within very limited bounds—that it began at home and then gradually spread outward, first to relatives (sometimes of fairly great biological distance), then to nonrelated near neighbors, then to more distant persons, and eventually encompassing, say, a city-state or a sizable region. There appears to be no à priori reason that the process could not extend more widely, to operate within large nation-states, or even multinational empires. It might even expand further yet—to apply to relations between these larger entities. To this last step, we have come to attach the name “international law.” Our ancient ancestors did not apply that label, but they did achieve something of major importance. They applied, in their practice, the germ of the idea. And from that germ, there grew the idea itself. But not everywhere. In fact, it was only in the civilizations at the far western end of the Eurasian land mass that general ideas of an impersonal and transnational system of justice took anything like deep roots.

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Plural Worlds In the beginning, human political horizons—and hence loyalties—were inevitably narrow, at least for ordinary people. That the world was divided into a welter of different languages, customs, and religions appears to have been taken as an ineradicable feature of the human condition. The biblical tale of the Tower of Babel envisaged a united, monolingual humanity only in a vague, prehistorical period. The normal mode of humanity in historical time was confusion and scatter. A sense of “us” and “them” could hardly have failed to have been acute, especially in an archaic age before the advent of the great universal religions. In the nineteenth century, the British philosopher Herbert Spencer expressed the opinion that human morality has a dual character that directly reflects this dichotomy between friends and strangers. Relations within a given society, Spencer thought, were governed by what he called a “moral code of amity,” which promotes mutual assistance and interpersonal justice and fairness. In opposition to this is what he called a “code of enmity,” which applies to relations with other societies. Somehow or other, the ethical systems by which humans live must accommodate both of these “radically opposed” conceptions of social life. The result, Spencer believed, is that, at any given stage of history, “an appropriate compromise” between the two will be devised—“not, indeed, a definable, consistent compromise, but a compromise fairly well understood.” This ethical modus vivendi must necessarily be “vague, ambiguous, illogical,” but also “for the time being authoritative.” Similar opinions were expressed in the ancient world. One example is found in the account by the historian Plutarch of the life of the renowned fifth-century bc Athenian statesman Aristides “the Just.” Plutarch noted that Aristeides’s famously acute sense of justice was said to have had sharp geographical bounds. For all of his rectitude in dealing with his fellow Athenians, he was not above acting opportunistically—and even dishonestly— when advancing the interest of Athens against other states. In the following century, the philosopher Plato, characterizing the rulers of his ideal city, likened them to pure-bred dogs, wishing them “to be as gentle as possible to those they know and recognize, and the exact opposite to those they don’t know.” Modern scientists have given the label “parochial altruism” to this phenomenon of being altruistic and cooperative within small groups, while

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simultaneously hostile to outsiders. Konrad Lorenz, the noted Austrian ethologist, suggested that this moral dualism represents two sides of the same biological coin. He contended that animals which are noted for their mutual loyalty within their small groups are especially aggressive toward outsiders. “The proverbially most aggressive of all animals,” he maintained, “Dante’s bestia senza pace [i.e., the wolf] is the most faithful of friends.” In a similar vein, the evolutionary biologist Edward O. Wilson has hypothesized that parochial altruism is an innate biological feature of Homo sapiens. “Our instincts,” he suggests, “still desire the tiny, united band-networks that prevailed during the hundreds of millennia preceding the dawn of history”—with the result that the human creature is, by nature, “an intensely tribal animal” with a “hardwired propensity to downgrade othergroup members.” Some biologists have suggested a genetic explanation for altruistic behavior toward relatives. Claims have even been made of a specific biochemical basis for parochial altruism: a neuropeptide called oxytocin, which is produced in the human brain and operates as both a neurotransmitter and a hormone. This “love hormone” (as it has sometimes been dubbed) is thought to have originally been associated with mother-infant bonding and later with various other prosocial features such as trust and empathy—but only within a limited social range. Oxytocin, it has been asserted, also “contributes to the development of intergroup bias and preferential treatment of in-group over outgroup members.” It thereby “paves the way for . . . conflict and violence.” If it is true that sentiments of justice are, to a large extent, reserved for those who are near and denied to those from afar, we need not (necessarily) despair. There are at least two ways in which the constraints of parochial altruism can be overcome. One is by taking an increasingly expansive view of the social boundaries of the in-group. It is possible that the notions of “nearness” or “group” might be a good deal more elastic than is commonly supposed. Even in a fragmented and diverse world, it is nonetheless the case that, in various modest-size regions, there can be a significant degree of relative cultural similarity. Languages, for example, are sometimes shared across fairly large areas, and religions too. Neighboring peoples might even have a sense of some kind of common ancestry in the more or less distant past. The other strategy for dealing with parochial altruism is a more radical one: to suppress it by means of heroic intellectual endeavor. Even if our bio-

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logical makeup may incline us in certain antisocial directions, there seems to be no à priori reason that these tendencies cannot be overridden by appropriate degrees of rational exertion. The history of international law can be thought of as the story of these two strategies at work throughout the course of the human past—and present. The two strategies have been adopted in the order just given. First came the device of extending the sense of the “in-group” outward from its tribal or city-state origin, so as to encompass other groups that were culturally (and commonly geographically) nearby. Only later was the more rationalistic or intellectual path taken, of regarding foreign cultures as being in principle on a moral or legal par with one’s own. International law, in short, began its life in small settings, dealing with concrete and immediate problems, and then began to feel its way toward truly universalistic ways of thinking. There was not—and still is not—a set script to follow or any straight path to a preconceived goal. Instead, there was, certainly in early centuries, a kind of groping toward intersocietal order, and on a modest scale at that. It would seem reasonable to search for the first signs of international law in areas marked by two key features: a relatively high degree of cultural homogeneity, coupled with political fragmentation. These conditions prevailed to a significant extent in three regions of Eurasia: first in Mesopotamia and later in India and China (prior to its unification into a single state). Later, we have the important examples of the city-state cosmos of ancient Greece and the relations of Rome with its Italian neighbors early in its glorious history. We shall very briefly survey each of these.

Mesopotamia and the Middle East To persons who believe foreign relations to be intrinsically conflictual, ancient Mesopotamia offers an instructive counterexample. The earliest civilization to flourish there, in the fourth and third millennia bc, was Sumer, which comprised an array of city-states without prominent natural boundaries separating them. This might appear to be a recipe for perpetual warfare, but in fact the prevailing ethos was hegemonic. It was generally accepted that one city would be regarded as the leading one, possessed of what was called the “kingship.” This dominant role entailed the authority to arbitrate disputes between other cities—but crucially, without a right to interfere in

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government within those cities. As early as 4000 bc, there is an example of the ruler of Kish acting as an arbitrator in a boundary dispute between two other cities (Shirpurla and Gishku). The expression “confederal society” has been used to describe this hegemonic arrangement. It would appear that military strength was the basis of the leadership role—so that the dominant position could, and did, shift from one city to another over the course of time. Th is occurred, in the standard formula of the time, when the erstwhile leading kingdom “was stricken by force of arms.” But there was a concern that, at all times, some city or other must be in possession of the leadership. “The kingship must reside somewhere” was a standard formula. Arbitration was not invariably successful in preventing wars. It is interesting, though, that our oldest extant record of a war in which the causes are set out concerned not a war of conquest or aggression, but, more prosaically, a boundary dispute between the two Sumerian cities of Lagash and Umma. The affair is narrated, fragmentarily, on the Stele of the Vultures, at present located in the Louvre in Paris, and dating from about 2460 bc. It is said to be the oldest known public war monument in history, but it also does duty as history’s earliest surviving peace treaty. In it, the victory of Lagash is commemorated, with the ruler of Umma expressly identified as a trespasser. The boundary is defined (in Lagash’s favor), and the ruler of Umma swears an oath to respect it. The stele was probably erected along the boundary and probably accompanied by a curse at the end to discourage tampering. The ancient Middle East is also the source of our earliest detailed information on treaty-making practice in general. The Elder Pliny, the Roman encyclopedist of the first century ad, opined that the Athenian hero Theseus had (somehow) invented treaty making, but in this respect, as in so many, he was far off the mark. The earliest surviving treaty of peacetime friendship between two states dates from the twenty-third century bc and was concluded between the Syrian state of Ebla and the region of Abarsal, in presentday northern Iraq. It contained provisions relating to the travel of messengers and merchants between the two states and appears also to have confirmed Abarsal as some kind of protected state or vassal kingdom of Ebla. In general, peacemaking and alliances were a common topic of treaty makers. So was law enforcement, in the form of cooperation against banditry or arrangements for the extradition of criminals.

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The gods played a prominent role in treaty making, to the point that it has been asserted that, strictly speaking, treaties were actually between the gods themselves, with the humans on Earth merely playing dutiful supporting roles, acknowledging and illustrating the wills of their respective deities. Be that as it may, various rituals were involved in the treaty-making process. A communal meal became a standard feature. Animal sacrifice was common, too (especially the killing of an ass), as well as ritual touchings of the hems of garments. The most important element was the provision of supernatural sanctions (i.e., punishments) for infractions. The treaty makers would call down curses on themselves in the event of a breach. The frequent references to touching the throat when making a treaty were indications that death was the penalty for violation. Over the course of time, the curses became increasingly elaborate and detailed. Provisions were made to ensure that treaty obligations would not be forgotten with the passage of time. Texts of the agreements were typically deposited in temples for safekeeping, and there was periodic public recitation of the treaties. One treaty that has survived, between the Hittites and Wilusa (in the northwestern part of present-day Turkey), concluded in the early thirteenth century bc, even specified that these recitations take place three times a year. One point about treaty making of this sort is worth noting. That is, the mere fact of arriving at an agreement was not regarded as sufficing, in itself, to produce a legally binding obligation between the parties. What created the actual obligation was the oath sworn by each party to his own gods. These treaties, in other words, are probably best regarded as back-to-back, interlocking, unilateral commitments by the parties. This is most apparent from the sanctions provisions, which envisage that a treaty breaker will be punished by his own gods for breach of his duty to them.

India About ancient India, less is known than about either Mesopotamia or China. In large part, this is because the materials on which written records were made were more perishable than the well-nigh indestructible clay tablets of Mesopotamia. But it was also a result of a comparative lack of historical consciousness on the part of Indian writers, in marked contrast to the situation

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in China. The oldest surviving Indian text that contains material on international relations is a manual of statesmanship attributed to a writer named Kautilya, possibly dating, at least in part, from the third century bc but probably incorporating later material. Later scholars have given it the title Artasastra, meaning literally a manual on craftsmanship—in this case, the craft of being an effective prince. It is one of the world’s masterpieces of hardheaded political realism, unleavened by piety, sentimentality, or idealism. The ideal leader, to Kautilya, is not the man of virtue but rather one who possesses “the eye of knowledge” and is familiar with “the science of polity.” The treatise is replete with practical advice on such topics as personal security (e.g., defense against poisoning), organizing spying systems, recruiting and managing armed forces, devising military strategy, and fomenting domestic unrest in enemy states. Some of the advice concerned foreign affairs. It was taken for granted that neighboring states would be enemies in principle, even if relations were intermittently peaceful from time to time, as expediency might dictate. Regarding treaties, some useful advice was provided—not, however, on the mechanics of concluding them or the necessity of observing them. Instead, Kautilya’s concern was to explain when it was mandatory for a responsible statesman to disregard them. If a ruler perceives that adherence to a given treaty causes a “loss of profit,” it is stated, and if the breach of it would cause no loss to the other party, then he should proceed to disregard the agreement. On the subject of diplomatic practice, Kautilya provided a rationale for the granting of at least certain privileges to envoys. Specifically, he held that an envoy should not be punished for bearing unwelcome news from his principal. The reason given was that envoys are the mere “mouth-pieces of kings,” speaking their rulers’ words rather than their own. Consequently, any wrongdoing associated with the message (such as repudiating a treaty) must be attributed to the principal and not the messenger. It may be noted that, on this logic, there is no suggestion of general inviolability of ambassadors as in modern international law. The door is left open for punishing the envoy for any wrongdoing which he commits on his own initiative. On the conduct of warfare, Kautilya dispenses much advice of a practical sort—with lavish attention to spying and various kinds of deception, as well as to sundry ways of administering poisons. (There is also, appropriately, advice on antidotes when the enemy employs these devices.) Restraints on

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warfare were not a preoccupation. On the contrary, Kautilya explicitly approved of the tactic of deploying booby traps (or “contrivances”) in sacred places. He helpfully suggested, for example, that, “by removing the fastenings under a cot or a seat, [an enemy belligerent] may be made to fall into a pit containing pointed spears.” A different—and distinctly more high-minded—category of writings comprised the various Dharmasastras, which were basically treatises on religious duties. We have only very imperfect information of the dates of these works (which were probably composites of writings over extended time periods), and we know nothing of their authors (or compilers) beyond their names. But this class of writings presents some striking contrasts with the Artasastra, especially on the subject of the conduct of war, with various restraints urged upon belligerents. The Dharmasutra of Apastamba (ca. 450–350 bc), for example, gave four categories of persons who are exempt from attack in war: those who have thrown down their weapons (i.e., abandoned the fight, perhaps referring to deserters from the enemy side), those “who have dishevelled hair” (referring to certain religious figures), those who fold their hands in supplication (i.e., who surrender and then appeal to the victors for mercy or protection), and those who are fleeing. Another Dharmasutra, attributed to an ancient sage named Gautama (ca. 600–400 bc), had a somewhat lengthier list of protected people, adding messengers, persons claiming to be either cows or Brahmins, and persons who have climbed onto a ledge or tree. The Dharmasutra of Baudhayana (ca. 500–200 bc) contained similar restrictions on violence against noncombatants, while carefully adding the condition that the protected persons must not join in the hostilities. This code also contained a restriction on permissible weapons that the belligerents can wield against one another: it prohibited the use of barbed or poisoned weapons.

China in the Warring States Era If we demand of international law that it comprise a set of broad general principles about relations between states, instead of simply providing a menu of practices on specific topics, then we can confidently place the birth of our subject in ancient China, in the age prior to the unification of the country into a single empire in 221 bc. This was the period comprising the Spring

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and Autumn Era (722–481 bc, so named because these were years covered by the Chinese history classic, The Spring and Autumn Annals) and the subsequent Warring States Era (481–221 bc). The Chinese regarded it as a time of degeneration from a prior golden age of political unity, under the quasimythical Shang dynasty and the wholly mythical Hsia dynasty. Even when political fragmentation prevailed in practice, unity remained the ideal. This was reflected in the according of a sort of honorific primacy to the state of Chou, broadly similar to the position of position of “kingship” in Sumer (hence the alternate designation of the period as the Chou dynasty). But this was merely a ceremonial and titular preeminence, not a reflection of actual power relations. Across the Chinese world, there was a general sense of cultural and racial unity, as well as a fair amount of traffic between the states by individuals. Merchants, for example, were generally free to travel between one state and another with little interference. Political loyalties were surprisingly fluid, even at high levels. Statesmen, nobles, and warriors appear to have had little trouble in shifting their allegiance from one sovereign to another, shopping around (in later parlance) for rulers whom they regarded as suitable to serve. The most famous of these peripatetics was the sage Kong Fu-tze—better known in Latinized form as Confucius—who lived in the sixth and fift h centuries bc. Originally from the small state of Lu (in modern Shandong), he led the life of a wandering teacher in various other states. In the area of state practice, there was a great deal of treaty making among the various Chinese states. In the Spring and Autumn Annals, over 140 treaties are recorded, about half of them bilateral and half multilateral. Rituals broadly similar to those of the Middle East accompanied their conclusion. Typically, an animal sacrifice was involved, with the tearing off of the left ear of the victim, which was then used for smearing the text of the treaty, and the lips of the signers, with blood. Of bilateral treaties, three copies were made, one for each party and the third to be buried with the corpse of the sacrificial beast. Guarantees of observance were also achieved by methods similar to those in Middle Eastern societies. For example, there was often an oath of wrath against any later violator. Sometimes, there was a posting of a bond as security for observance. More common, though, was an exchange of hostages, who typically were the sons of the rulers who had concluded the treaty.

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An interesting feature of China’s Warring States period was the formation of various leagues of states, typically with a leading role accorded explicitly to one of the members. The leading state (or Ba) would receive tribute from the other members and would have the task of directing the general policies of the league. In return, it had to provide assistance to other states in the event of attack. The first state to attain full Ba status was Qi in about 680 bc. It was succeeded by the state of Jin, which retained Ba status for over eighty years. The major alternative league was dominated by the state of Chu, which appears to have had unrestricted power over the member states. Other leagues began to be formed to the point that, by about 600 bc, the practice had become common. Until the end of the Warring States period (in 221 bc), the leagues functioned as the principal means of enforcing interstate commitments. Leagues generally had multilateral treaties as their foundation, which typically contained provisions for joint action by the parties or members against any state that infringed the agreement. There were commonly arrangements for the extradition of criminals, as well as for trade, communications, and cultural interchange. The settlement of disputes between states was an important league function. The usual practice was for the court of the dominant league state to serve as a high tribunal for this purpose. If the leading state was itself a party to a dispute with a member, then a third member of the league would offer to mediate. An example of this occurred in 625 bc, when the leading state in one of the leagues, Chin, was in a dispute with another member, Wei. A third league state, Ch’en, performed the mediation role. Meetings of league members were fairly frequent. The Chou league, for example, averaged two meetings every three years, with sizable delegations attending (often of over one hundred members). There were sometimes even agreements between leagues, as in 546 bc, when the two main leagues concluded a treaty that provided for reciprocal visits (although the arrangement did not last very long). The largest number of parties on record to any single Chinese treaty was for a league formed in 562 bc by twelve states. The foundation agreement included promises not to hoard produce and not to harbor criminals or traitors. It did not, however, prove very effective. In the very next year, two of its parties went to war with one another.

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Diplomatic practice was an area that received a great deal of attention from Chinese writers, largely contained in a collection of “three ritual texts”: The Book of Rites (or Li-chi), which was one of the five Confucian classics, plus two lesser works. They set out what has been described as “an elaborate system of administration, ceremonies, ranks of officials, methods of intercourse, and behavior standards” of the period—although, in reality, these works consisted chiefly of later fabrications, projecting backward onto the Chou period the practices of the later, imperial era. A large amount of this literature concerned the formalities and rituals associated with diplomatic intercourse, such as the appropriate ceremonies for the receiving of emissaries from other states. In this period, there were no permanent diplomatic missions stationed in the various states, but ad hoc diplomatic contacts were so common as to amount to practically the same thing. The mistreatment of envoys was sometimes, at least, taken very seriously indeed. We know of a case in 636 bc in which the Prince of Cheng captured an ambassador from the Chou ruler. In response, Chou sent a military expedition to free the envoy and punish the prince. But there were also a number of instances of flagrant mistreatment of ambassadors and other foreign officials, including rulers, that went unpunished simply because of the military weakness of the victim state. The state of Chin appears to have been the chief offender on this score. In 582 bc, the earl of Cheng was put to death in that state. Two years later, the ruler of Chin detained the ruler of Lu (Confucius’s home state) at his court as a virtual prisoner. In 519 bc, another prince of Chin similarly seized an ambassador from Lu and held him as a captive. It is hardly surprising that, in the Warring States period, armed conflict was a not infrequent occurrence. But there was a general belief that war should be waged only in pursuit of some valid cause—as reflected in a common maxim, that “[f]or war you must have a cause that may be named.” Regarding the conduct of war, there is evidence of a certain system of restraints. For example, the general practice was to spare noncombatants from attack. In actions against the enemy, there are signs of an impressively chivalrous ethos. There was a custom, for example, of refraining from invading a state in the year in which its leader died or in a year in which the state suffered an insurrection. Surprise attacks were frowned on. It was urged, for example, that prior to an attack, the attacker should beat a drum to give the enemy a fair warning of the battle to come. It was customary, too, to

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refrain from pursuing defeated enemies who were fleeing from battle. The right of other states to remain neutral in a conflict between any two countries was admitted, although it is not clear how far the interests of neutral states were actually respected. Care should be taken not to exaggerate the effectiveness of these worthy principles in practice. The rules—if they can even be called that—appear to have been breached with some frequency, and typically with impunity. In the seventh century bc, there were at least two instances in which states were attacked in years in which they had suffered insurrections. And in the following century, there were at least three instances in which states were invaded in the year that their rulers died. In addition to this body of state practice, the Warring States period of Chinese history produced an innovation of a quite different character: a body of systematic writing on international relations. It was very slight in bulk, but it must be said to mark the beginning of international law as an intellectual discipline—as opposed to international law as a set of state practices. There were even several distinct schools of thought in the area, with the Confucian tradition as the dominant one. The basis of Confucianism was a system of interpersonal ethics—with an extrapolation from this to a general theory of social relations. Some of its key tenets were applicable to relations between states as well. There were four particularly noteworthy elements of Confucianism. One was an insistence on the importance of deference and hierarchy in human relations: of younger siblings to older ones, of children to parents, of subjects to sovereigns. A second component was a stress on duties rather than rights—but of duties that were reciprocal in nature, running downward from above, as well as upward from below. The Confucian system was thereby infused with a powerful sense of noblesse oblige or paternalism, and also with the belief that the key to good government lay in the personal qualities of the leader. Benevolent rule by a king was expected to generate, more or less automatically, gratitude, loyalty, obedience, and order on the part of his subjects. The third key element of Confucianism was the belief that this network of reciprocal duties made for a harmonious and well-ordered society in general, in which all persons had appropriate roles to play, whatever their station in life. Confucianism was, in short, a system suff used by inequality—but also

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by benevolence and harmony. Fourth and fi nally, the Confucians had a low opinion of law in general. Rules and punishments were, of course, sometimes necessary, especially when dealing with the lowly and uncouth elements of society. But the Confucian ideal was of government by a benevolent (and absolute) monarch, whose example of virtue would provide a continuous education and inspiration to his subjects. The goal was the internalization of proper modes of conduct, rather than the imposition of rules from outside. The principal application of Confucian ideas to international relations came not from Confucius himself, but from his follower of the fourth century bc, Meng Zu (or Mencius in Latin form). At the heart of his thought was a certain view of human nature: a belief in an innate goodness of human beings, including rulers. This implied, in turn, a belief in a basically peaceful, harmonious world of states. Mencius believed in the equality of states only in the limited sense of holding that all states have an equal right to exist. But here, as was the case within societies, the ethos of hierarchy and deference was given a central role. Mencius maintained that large and powerful states should play a leading role—but that they should play that role responsibly, setting good examples for other states. He was explicitly opposed to wars of conquest and to the subjection of one state to another, insisting instead on a pluralistic world of separate states as the norm. Mencius held consistently to a rule of nonintervention by states in the internal affairs of one another, to the point of emphasizing that, even in a case of misconduct by a ruler within a state, other rulers should refrain from taking punitive action. Only “a minister appointed by Heaven” should undertake punishment of an oppressive sovereign, not the government of a neighboring state. He explained his position by reference to the general Confucian principle that punishment can be inflicted only by a superior upon an inferior—and then pointing out that, in international affairs, this necessary relationship of superior to inferior is lacking. By the same token, small states were expected by Mencius to show appropriate deference toward large ones. This took the form, most concretely, of the payment of what is typically called tribute. In theory at least, tribute payment by small states to large ones was a voluntary, self-imposed action—an acknowledgment of a general duty of respect owed by the humble to the great, rather than a sign of legal or political subjection, as that term in

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English usually implies. The relation of small states to large ones was compared by Mencius to the relationship of teacher to disciple, rather than as sovereign to subject. This ethos of deference and hierarchy, of interconnection and noblesse oblige, was most clearly in evidence in the various leagues of states described previously. Confucianism did not have a monopoly on Chinese thought. One of the alternative schools of thought was that of Mozi (or Mo-tzu or Mo ti), who may be regarded as a dissident Confucian. Nothing certain is known of his personal life, save that he came from the state of Song. Since his writing predated that of Mencius, he has a claim to being the very first writer in history to touch on international-law questions. The Mohists were more noted than the Confucians as outspoken opponents of aggressive or offensive war, which Mozi condemned as a crime. But Mohism did not endorse absolute pacifism. It accepted the justice of war waged in self-defense. In fact, Mozi himself is said to have been an expert in the technology and tactics of siege warfare—with the intention of assisting small states to repel attacks by large ones. He was also imbued with the spirit of collective security, favoring the rendering of assistance to small countries that are attacked by aggressors. Mohists were even organized along military lines, possibly somewhat in the manner of the crusading orders of medieval Christendom. There was an account of a grand master of a Mohist organization contracting with a local lord to take on the defense of his city. It is noteworthy, too, that Mozi carefully distinguished aggressive war from punitive war and did not disapprove of war that was designed to punish or counteract wrongful conduct. In the sphere of government and public affairs, the principal rival school of thought to Confucianism was legalism. A core feature of legalist thought was the insistence that law is entirely a conscious human creation, designed for the effective implementation of governmental policies. The legalists had no regard for tradition or custom, affirming that an effective ruler should be prepared to engage in the ruthless extirpation of past practices if they were found to interfere with the effectiveness of his rule. All law was held to be instrumental in character (i.e., designed for the attainment of specific ends determined by the ruler). Each sovereign, moreover, was regarded as being free to institute whatever law and to develop whatever policies he saw fit. Legalism must therefore be understood as referring not to the rule of law per se, but instead to the idea that law is an instrument of state sovereignty

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and of the will of individual princes. On this basis, legalism may be seen as  a stark forerunner of what Eu ropeans would (much) later know as positivism. Regarding international affairs, legalism was thoroughly in tune with the realities of the Chinese interstate system of the Warring States period. Its world was one of resolutely independent states, locked in perpetual rivalry with one another. Legalism altogether rejected cosmopolitan ideas of universal law or morality, or anything smacking of what would later be called natural-law thought. Relations between states were seen as determined by power and not by abstract ethical theories or customary practices. Chinese legalism, in short, presented the first forthright theory of absolute state sovereignty and was the first body of writing in what later Westerners would call the tradition of realism. Considering the Chinese experience generally, there can be no doubt that, of the three cultural areas under consideration, it made the greatest advances in the direction of international law. This was true in terms of the richness of its state practice and also of the doctrinal writing that it produced. At the same time, though, it can hardly be said that preimperial China actually had anything like an effective system of international law. For one thing, it is questionable whether the term “law” is really an apt term at all to describe relations between states in the preimperial Chinese system. One commentator, for example, has been unwilling to concede to the Chinese anything more than “a certain uniformity of state behavior patterns,” amounting, in reality, to “little more than patterns of convenience in a power struggle.”  Moreover, it appears that, in practice, Chinese rulers were quick to depart from the principles expounded by the writers when they believed their material interests to be at stake. Treaties appear to have been broken with a fair degree of frequency, with little or no evidence of remorse on the part of the rulers concerned. Major powers in particular appear to have been frequently lacking in the benevolence expected of them by high-minded writers such as Mencius. They had few compunctions about acting according their own perceived self-interest rather than in obedience to some generally applicable scheme of rules. Where the rule of law functioned most effectively was within leagues of states, relatively small groupings formed for mutual self-protection. In the wider Chinese world—to say nothing of rela-

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tions with non-Chinese peoples—power appears to have counted for a great deal more than law. The spirit of Kautilya, in short, was often more in evidence than that of Confucius or Mencius.

Ancient Greece The world of the ancient Greek city-states bore a certain broad resemblance to the warring states of preimperial China and to ancient Mesopotamia, in being a world fractured politically but at the same time united to an extent by cultural ties. In Greece, as in these other areas, there was a fairly significant body of state practice in the key areas of treaty making, diplomatic relations, and warfare before there was any systematic thought on the subject of justice in international relations between city-states. One respect in which Greece differed from Mesopotamia and China was in the prevailing attitude toward political fragmentation. In Greece, there was a stronger ethos of independence of one city from another, in contrast to the quasi-federalistic and hegemonic outlook of the Sumerians and to the nominal deference of the Chinese to the state of Chou. Plato even expressed misgivings in principle about contact of any sort between states, fearing that it “produces a medley of all sorts of characters,” arising from the mixing of different customs. His ideal was a self-sufficient, agriculturally based state— with, for good measure, a complete prohibition on foreign travel by any one under the age of forty. In Greek culture in general, a high value was placed on the concept of autarkeia (or self-sufficiency). Aristotle, writing in the fourth century bc, put autarkeia at the very center of the general human quest for the good life. He readily conceded, however, that this noble goal was not attainable on an individual basis. It could be achieved only collectively, through the institution of the polis (or city-state)—which therefore was, essentially by definition, a political entity capable of subsisting on its own resources, independently of other city-states. Moreover, Aristotle insisted on seeing the polis as a natural phenomenon, as the inevitable result of the natural quest of the human species for the goal of autarkeia. This principle of the independence of each state from all other states was to have a very long history in international law, although only in the nineteenth century would its full implications be rigorously drawn.

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It is well, at this point, to take note of another of Aristotle’s ideas that similarly would go on to play a very great role in international legal thought. This was the notion of the natural sociability of humans. Similarly to Mencius, Aristotle held that there is “a natural impulse” among humans toward cooperation. More specifically, this natural impulse leads humans to one particular form of cooperation: the (Greek) city-state. It is in this specific sense that Aristotle’s famous statement of humans as “political animals”— that is, as animals naturally inclined toward life in a polis setting—must be understood. This natural sociability, however, had a distinctly limited reach. It went as far as the polis, but no farther. All politics are local, it is sometimes said—a sentiment that is far from new. Aristotle’s theory of the state did not have any ineluctable implications for the problem of relations between states. Each state was independent of all others, to be sure. But what, if anything, prevented man’s “natural impulse” to cooperation from manifesting itself at this higher level, too? Aristotle’s political theory was effectively neutral on this question. The independent states might be disposed to be cooperative and friendly toward one another, or they might be engaged in perpetual warfare, or any combination of these. The furthest that we can safely go here is to conclude that Aristotle, armed with his principle of the natural sociability of humans, at least allowed for the possibility of a generally harmonious interstate system. Prevailing opinion within the Greek world, so far as it can be discerned from a vast historical distance, was divided on this question. There certainly was at least some belief that relations between states were intrinsically hostile. A speaker in one of Plato’s dialogues referred to a general belief that states “are all engaged in a never-ending lifelong war against all other states.” As a result, “what most men call ‘peace’ is really only a fiction, and in cold fact all states are by nature fighting an undeclared war against every other state.” No explicit doctrine of just wars was ever devised by the Greeks, although Aristotle did concede that it was “quite possible” that a war might be waged without a just cause. But he did not elaborate on this potentially interesting point. It should also be appreciated, though, that the Greek ethic of resolute independence of city-states from one another was counterbalanced, to at least some extent, by a palpable consciousness of cultural unity within the Greek world. In words attributed by the historian Herodotus to officials of Athens,

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the Greeks were acutely aware of the existence of “the Greek nation—the community of blood and language, temples and ritual; our common way of life.” This sense of solidarity extended to the legal realm, too, in the form of a belief in what was sometimes called “the common law of all Hellas”— referring to standards of conduct that were acknowledged throughout the whole Greek world. The most concrete manifestations of this unity were the periodic intercity gatherings in the form of the great athletic games, of which the most famous, in honor of Zeus, took place at Olympus. As in China, movement of individuals between states was fairly common. This is evident from the development of a regular practice of proxenoi, which approximates to later consular representation. In the typical arrangement, a city would make a grant of proxeny to a resident (and citizen) of another city. The grantee was thereby entrusted with the task of rendering various ser vices to citizens of the granting state when they were in the territory of the grantee. Duties would include assisting in business dealings, providing legal representation, supplying food and lodging, and various other ser vices. The fellow feeling of the Greeks for one another was strikingly evident in the manner in which they regarded war between Greeks as fundamentally different from war against non-Greeks, or “barbarians.” (That expression came from the most obvious feature of these outsiders: their non-Greek speech, which was regarded as mere nonsense, or “bar-bar” in the style of baby talk.) In the opinion of Plato, only conflict against the barbarians should be regarded as true war. Greeks, he believed, were “natural friends,” so that armed conflicts should be regarded as civil strife rather than as true war. In such inter-Greek conflicts, Plato maintained that the “private anger of the state” should not be allowed to destroy “the common interest of Hellas.” He posited that the force employed should be “of a gentle kind” and that the belligerents should regard themselves as “agents of correction, not enemies.” This view of war as a process of correcting the errors of one’s opponents constitutes the germ of what would later become just-war doctrine in European thought. In such a conflict, the purpose of the violence is not to conquer or enslave the opposing side, but merely to compel it to “make amends” for its past errors. As in the case of preimperial China, it cannot be pretended that these noble sentiments held anything like a consistent sway over the actual practices of the Greek states. Thucydides, in his history of the epic Peloponnesian

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War (of 431–404 bc) between Athens and Sparta, related a famous instance in which considerations of law or justice played no part. This occurred in 416/15 bc, when Athens refused to respect the wishes of the inhabitants of the island of Melos, originally a Spartan colony, to remain neutral. The pleas of the Melians were brushed aside by the Athenian military commanders, who asserted the existence of “a general and necessary law of nature to rule whatever one can.” They warned that following “the path of justice and honor” was likely to prejudice the higher goals of self-interest and security. The warning was no idle one. When the Melians declined to join the Athenian side, they were immediately attacked. This “Melian Dialogue” (as it is commonly known) has become one of the canonical texts of the realist school of international relations—and of skeptics of international law in general. It should be appreciated, though, that this same historian also provided some instructive illustrations of legal considerations playing a part in warfare. One of these concerned an attack by Thebes against Plataea in 427 bc, in which Sparta assisted Thebes in achieving victory. The defeated Plataeans immediately appealed to the better nature of the victors, urging them not “to take as your standards of justice your own immediate advantage.” Instead, the Spartans should “[judge] sincerely between right and wrong”— meaning that they should acknowledge that the Theban attack had been an act of unjustifiable aggression. The Plataeans maintained that their own conduct had been consistent with “the general law that one is always justified in resisting an aggressor.” They further warned the Spartans to “beware lest public opinion” condemn them for treating the Plataeans unjustly. The Thebans countered by asserting that they had been invited to intervene by a faction in Plataea. It is of interest that the Thebans conceded that, on its face, their action did appear to be unjust—and that there was even “a certain justice” in the Plataean attacks on them after the intervention. Thucydides relates another interesting incident in which mutual accusations of war crimes were leveled, this time between Thebes and Athens following Thebes’s victory at the Battle of Oropus in 424/23 bc. The Thebans accused the Athenians of having occupied and fortified a temple, contrary to the customary rule of inviolability of temples in war. In addition, the Athenians were accused of having used water for everyday use that should have been reserved for religious usage only. The Athenians’ defense was to

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invoke what would later be termed the principle of necessity. They conceded that their occupation of the temple was wrongful in principle—but that it was nonetheless justifiable as “a case of necessity” and not out of “any lack of  proper religious feeling.” The temple’s deity, they confidently asserted, would look with indulgence on “any action done under the stress of war and danger.” The act would be unlawful, the Athenians contended, only if there had been no necessity for the occupation. Having defended their action at the temple, the Athenians then proceeded, in turn, to accuse the Thebans of denying to them the traditional right of burial of dead after a battle. The Thebans denied wrongdoing by contesting Athens’s version of the content of the rule. The right of burial applied, they asserted, only when the dead were located in their home territory (in this instance, they were not). An invading force, such as the Athenian one, was entitled to recover its dead only after withdrawing from the invaded territory. The Thebans, though, went on to propose a settlement: that they would allow the burial of the Athenian dead, in return for Athens’s evacuation of the temple. The Athenians refused this, on the ground that they were entitled, as a matter of right, to the burials; consequently, they did not need to give anything in return. The result of these negotiations was a stalemate. Athens did not recover the bodies, nor Thebes its temple. (A few weeks later, though, the matter was resolved, after a fashion: the Athenians were driven out of the area, at which point a further request for the dead bodies was granted by the now-victorious Thebans.) Alleged violations of the laws of war were also invoked in 200 bc, when an Athenian delegation sought the aid of the states of the Aetolian League in an ongoing war against Macedonia. The Athenians (in the account of Livy) told of the devastation of their houses and crops by invading Macedonians. But they also pointedly conceded that tactics of that sort, while harsh, were not actually unjust, “for there are . . . laws of war which are legitimate sanctions, whether one avails oneself of them or suffers under them.” Quite different, however, was the alleged Macedonian practice of destroying religious shrines and desecrating graveyards. These were acts that, in the Athenian view, “polluted all laws, human and divine alike.” In the event, the Aetolian League did enter the war on the Athenian side, but for reasons of strategic self-interest and security, rather than of umbrage over legal or moral transgressions.

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A major contribution made by the Greeks in the field of international relations was the practice of settling disputes between states by means of arbitration. An early example occurred in the seventh century bc, when an arbitration took place between Andros and Chalcis, and another between Athens and Mytilene. In the sixth century bc, we know of a dispute between Athens and Megara over the island of Salamis, which was resolved by arbitration. Later in that century, according to Herodotus, the duty to arbitrate disputes in place of resorting to war was imposed onto the cities of Ionia by their Persian overlords in Sardis, who issued an instruction to this effect to the assembled representatives of the Ionian states. In the period 400–340 bc, six or seven arbitrations took place, with a considerable picking up of the pace after that. In the third century bc, there were at least twentyone instances, and some forty to fift y in the century following. As impressive as this Greek arbitration record was, its relation to international law, in anything like our sense of the word, was somewhat tangential. There does not seem to have been anything like a detailed code of international law that was applied in these cases. The arbitrators appear to have rendered their decisions simply on the basis of what seemed to them at the time to be the equitable thing to do. “[A]n arbitrator goes by the equity of a case, a judge by the strict law,” explained Aristotle, “and arbitration was invented with the express purpose of securing full power for equity.” This point is reflected in the very word “arbitration,” which comes from the Latin arbitrio, meaning free will. (It is also cognate with the English word “arbitrary.”) So if by international law is meant merely a general sense of fairness and impartiality, then modern international lawyers can justly claim the Greek arbitration practice as a historical milestone. But if a more demanding definition is sought—such as an actual transnational set of rules to be applied relatively inflexibly—then we must still look to the future. The Greeks produced less than the Chinese did in the way of general theoretical writing on international relations. But there is some evidence of support for a general idea that justice should be the governing factor in relations between the states. The most eloquent presentation of the case for this was by the Athenian political writer Isocrates in an oration “On the Peace,” written in 355 bc. The immediate problem at hand was how Athens should react to a revolt against it by four member states of the confederacy that it dominated. Isocrates argued that Athens’s own interest would be best served if it

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forswore policies of imperialism, coercion, and intervention into the affairs of other Greek states. To some extent, his case was a utilitarian one, explicitly contesting the belief that acting unjustly would bring material advantages. He urged that the virtues that were generally lauded in individuals should be practiced by states as well in their foreign relations with other states. “[I]t behooves states much more than individuals,” he argued, “to cultivate the virtues and shun vices.” It is impossible to say whether Isocrates’s eloquence was the decisive factor, but his advice was followed—Athens concluded peace with the insurgent states and consented to their withdrawal from the confederacy.

Preimperial Rome Rome came under the strong cultural influence of the Greek states early in its history, through contacts with Greek colonies in Italy. In the area of treaty making, the Romans were very active, especially in their relations with their Italian neighbors (although none of the actual texts has survived). The Italian core of the Roman Empire was in fact a network of alliance arrangements. Sometimes, these placed the parties on a nonequal footing, in which the other state party was required to “preserve the greatness (majestas) of the Roman people” (in the common phrasing). A Roman lawyer of the first century ad explained that the other party, although placed in a position of inferiority, should nevertheless still be regarded as a free people. This was presumably on the basis that it retained its internal self-government. More commonly, Rome’s treaties with its Italian neighbors were at least formally reciprocal. The typical arrangement was that each side would assist the other in time of war and would take care not to allow enemies of the other to pass through its territory. In the area of warfare, Roman leaders tended to take the view, like so many of their counterparts in other cultures, that a resort to war should occur only in furtherance of a just cause. Some interesting insight into Roman perspectives on this point is provided by Livy in his account of Rome’s third king, Tullus Hostilius. Although possessed of what the historian called a “lust for action,” Tullus was also scrupulous about placing his belligerent actions in the best possible moral and legal light. In about 670 bc, at a time when Rome and neighboring Alba were engaged in constant mutual cattle

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raids, each side sent envoys to the other to demand the return of stolen property. Tullus’s team, however, acted with the greater dispatch, making their request immediately on arrival in Alba. As expected, the request was refused, so the envoys promptly declared war, to take effect after thirty days. The Alban negotiators, in contrast, had tarried in Rome, enabling Tullus to claim that Alba was the party in the wrong, because it had been the first to refuse satisfaction. “Our prayer,” he proclaimed, “is that the guilty nation may suffer all the misery of the coming war.” Lawyers may quibble over whether guilt should really be determined by the matter of timing rather than by the substance of the accusations. But the incident is a revealing indication of the existence of at least some concern for having right (of some kind at any rate) on one’s side in going to war. Questions of just causes of wars arose again about twenty years later, when conflict broke out between the Romans and Sabines. Again according to Livy’s account, each side claimed a grievance against the other. The Romans alleged that some of their citizens, on a peaceful pilgrimage to a religious shrine in Sabine territory, had been abducted. Not to be outdone, the Sabines alleged that the Romans had arrested Sabine refugees who had taken sanctuary in Rome. Livy’s account of Rome’s later war against Veii in the wake of a violation of diplomatic immunities has already been noted. To Tullus’s successor as king, Ancus Marcius, Livy attributed the establishment of a regular procedure for declarations of war (borrowing the idea from a nearby tribe). Cicero, the famous orator, author, and politician, would later disagree on this point and give the credit to Tullus. But in all events, a priesthood of persons known as fetials was established in Rome at an early period, and a ritual introduced for inaugurating war. Briefly, it involved the sending of an envoy from Rome to the frontier of the would-be enemy state, where redress of some injury would be publicly demanded according to “religion and justice.” If satisfaction was refused (as was expected), the envoy would return to Rome to seek the opinions of the fetials as to whether war should be declared. If the fetials expressly approved of the waging of “just and righteous war” over the issue in question—and it would appear that they always did—then one of their number would himself go to the enemy’s frontier, bearing a spear. He would make a formal announcement of the war—including the just cause that had given rise to it—and then

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hurl the spear into the enemy’s territory, thereby officially inaugurating the hostilities. Livy records the first use of this procedure as taking place around 625 bc, against the neighboring city of Latium. It must not be thought that this fetial procedure went very far toward involving a conception of justice in war making. For one thing, there are no records of a request for war being turned down by the fetials. It may easily be suspected that the whole process was a mere ritual rather than any reasoned debate about the lawfulness of going to war. Wars were apparently regarded as being just simply on the basis of the Roman demand having been refused—without undue concern over the legitimacy of that demand according to some general principle of justice. It will also be observed that the enemy side played no part whatever in the process—save to receive the ultimatum, which they were expected to refuse. In the course of time, the fetial procedure fell into disuse, as Rome’s wars began to be waged against faraway states, so that the fetial’s journey to the frontier became infeasible. The fetial process, however, did incorporate elements of just-war thought in its requirement that redress be demanded for some kind of substantive wrong on the part of the enemy-to-be. This reflected a general Roman opinion that, when war was resorted to, there had to be some plausible, objective justification. Polybius, the Greek historian of the second century bc, reports that the Romans habitually “paid great attention” to ensuring that their stated reasons for going to war “would appeal to foreign nations.” But he was well aware, too, that the public explanations were sometimes mere pretexts for what were actually acts of policy. In such cases, formal justifications (of greater or lesser credibility) were seldom difficult to find. Selfdefense claims were common. Other wrongs, or alleged wrongs, included mistreatment of envoys, destruction of sacred places, refusal of extradition, offenses against allied powers, and breaches of treaties (such as defections from an alliance). A striking example of the lengths to which Romans would go to ensure at least the appearance of justice in war making occurred in 196 bc, when Rome sought to take military action against the Boeotian League in Greece. The Roman statesman and general Titus Quinctius Flamininus accused the league of complicity in attacks against Roman soldiers in Boeotia. In their defense, officials of the league maintained that these acts had been committed by private bandits without official support. Nevertheless, Flamininus de-

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manded compensation of five hundred talents for the injuries and dispatched military expeditions against Boeotia. (A talent was approximately about thirty kilograms of silver.) But he also summoned representatives from two of Rome’s allies, the city of Athens and the Achaian League, to confirm that he was waging a “lawful and rightful war.” As it happened, the two allies ended up mediating a settlement of the dispute, with Flamininus accepting a payment of only thirty talents instead of five hundred. There is evidence, too, of palpable misgivings on the part of Roman political leaders when wars were launched without any credible justification. Perhaps the most striking example was the invasion of Parthia by Marcus Licinius Crassus in 53 bc. This expedition was widely regarded as having been undertaken without a just cause. It is perhaps all too appropriate, then, that it ended in a disastrous defeat for Rome, with Crassus himself among the dead. It was said by some that the victorious Parthians afterward poured molten gold down the corpse’s throat, as a form of posthumous torture befitting a man of prodigious wealth.

Expanding Horizons It was inevitably more of a challenge for lawlike behavior to spread outside of regions where there was a preexisting degree of cultural unity. For a start, there were practical difficulties, such as the comprehending of foreign languages. There was also an important conceptual barrier: the difficulty of accepting that peoples who were altogether beyond one’s cultural horizon could or should be entitled to equal treatment, on some kind of objective basis, with familiar neighbors. There was, in other words, a great conceptual leap to be made, to a belief in the existence of a single font of justice or source of legal obligation that would be recognized transculturally. The common belief was that rulers could be placed under legal obligations only by their own deities, and not by some transcendental, transreligious entity that had all the peoples of the world under its watchful jurisdiction. Even the Jewish Yahweh was the god of his chosen people only, not of the world at large. His power might extend over the whole world, but his ability (or inclination) to impose binding obligations was confined to his Chosen People.

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The attitude of the Greeks illustrates the position all too clearly. Prior to the conquests of Alexander the Great, there was scarcely a pretense that the noble ideas of Plato or Isocrates would apply to relations with non-Greeks. Plato made it clear that his precepts about moderation and justice in war did not apply to conflicts with the barbarians. With them, there should be “war to the death.” Aristotle was of a like mind, famously contending that barbarians, as inferior beings, were naturally fitted to be the servants, or slaves, of the Greeks. There would appear to be no record of a Greek polis ever concluding a treaty with a barbarian state. An absence of respect or affection for exotic foreigners need not, however, rule out the devising of de facto working relations on the basis of some discernible shared values—that is, on the basis of something that could, without undue distortion, be called the rule of law. This fact was vividly demonstrated in the 1970s, when social scientist Robert Axelrod ran a contest in which various strategies of utility maximization, in the form of rival computer programs, were pitted against one another. Two forms of conduct were available—cooperation and defection—and no consultation or prior agreement between players was allowed. The game was structured so that mutually cooperative behavior was the best outcome—but the problem was that an individual who played cooperatively risked being exploited when playing against a defector. The challenge, in essence, was to devise a strategy that best promotes cooperation while at the same time ensuring against exploitation by an opponent who might choose to defect at any time. Each player’s preprogrammed strategy was matched against each of the others for a duration of two hundred moves. The winning strategy (or program), by a wide margin, was the simplest one, which operated on the single principle of pure reciprocity—that is, to be cooperative on the first move, and then mechanically to replicate, in each subsequent round, whatever the other side did on the previous play. Even when that strategy was employed by only one of the players, it produced the highest score for its user. When both sides employed it, the results were spectacularly good—a flawless record of mutual cooperation. It should be noted that this happy outcome has nothing whatever to do with morality or altruism. Each contestant had no goal except to obtain the highest score for himself alone. But the optimal way of achieving this purely self-interested aim is to settle into a pattern in which each side consistently

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cooperates with the other, with no defections by either. And the best way of bringing this about is a strategy of simple and straight reciprocity. Nor does this striking result have anything to do with the biological makeup of the rivals, which were computer programs rather than flesh-and-blood humans. (Oxytocin was altogether absent from the proceedings.) The lesson seems clear: that mutual cooperation on the basis of reciprocity, even between total strangers and rivals, makes sense on purely rational grounds, without any regard to backgrounds of shared moral or cultural values. There may be no deity promoting law between nations—but there is evidence that reason alone can do the job every bit as effectively. The problem remains, of course, to find ways of putting this reciprocitybased ethos into practice in the world outside of cyberspace, where factors alien to those of computer programming play a large role. Language is perhaps the most obvious barrier to be overcome. An interesting solution to this challenge was related by Herodotus, in his description, in the fift h century bc, of “silent trading” between Carthaginian merchants and some unnamed North African tribes “beyond the Pillars of Heracles.” The Carthaginians would unload their cargo onto the beach, send a smoke signal to the natives, and then retire to their boats. The natives would then inspect the merchandise and leave a quantity of gold as their offer of a purchase price. If the Carthaginians thought it a fair offer, they would take it and sail away. Otherwise, they would patiently wait for the natives to increase their deposit. The historian assures us that the system worked flawlessly. Never, it would appear, was silence more golden. At the level of state-to-state contacts, intercourse between parties from different cultural areas has been found to be feasible in various ways. Treaty making, for example, appears to have posed no undue difficulty, given that treaties only involved back-to-back unilateral commitments by each monarch to his own deities. In fact, the oldest treaty to have survived in its entirety is one between Hattusilis III of the Hittites and Pharaoh Ramses II of Egypt in about 1270 bc. It was inscribed in Egyptian hieroglyphics on a wall of the Temple of Amun (the leading Egyptian god at that time) in Karnak. A portable version of it exists in Akkadian (the lingua franca of the Middle East at that time) on three tablets, two of which are in Istanbul and one in Berlin. It was an impressively thorough arrangement, providing for mutual nonaggression, combined with a defensive alliance, while also mak-

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ing provision for extradition of wanted criminals (along with a promise that extradited persons would be accorded humane treatment). Egypt agreed to drop its claims to the state of Amurru (in the northwest of present-day Syria), in exchange for being given trading rights in the area. The peace also proved a durable one, bringing warfare between the two powers to a permanent end. In the manner in which dealings with outsiders were managed, the three principal regions of Eurasia—India, China, and the Mediterranean world— offer highly instructive contrasts that would be decisive for the shape that international law would take throughout its history. Two of the three areas, India and the West, gave birth to universal religious-cum-philosophical systems, with grand visions of equality of all peoples. The third one, imperial China, took a sharply different path, toward an explicitly sinocentric outlook that relegated those who were culturally alien to the margins of their moral world. But India and the West, too, even if they both sired universal religions, went on to take very different roads from one another.

India and Buddhism The oldest of the world’s universal faiths is Buddhism, which was first proclaimed and promoted by Prince Gautama, from the ruling family of a small state on the border of present-day Nepal and India, in approximately the fift h century bc. In its earliest centuries, it was more of a philosophy than a religion—and perhaps better yet regarded as a practical program for personal salvation. Its most prominent institution was the sangha, or monastic system, which is said (probably correctly) to be the oldest human institution in continuous existence. Among the more noteworthy teachings of Buddhism were nonviolence and nonaggression, even to the point of eschewing animal sacrifice, which was so common a feature of religions generally. To some extent, Buddhism succeeded in appealing to sovereigns, at least for a time. It was endorsed in the third century bc in India by Ashoka, a ruler of the Maurya dynasty, the first of the major imperial dynasties in the Indian subcontinent. The histories relate that, upon adopting the faith, Ashoka abjured further conquests. Later, Buddhism was adopted as the national faith of the empire of the Kushans, which was based not exclusively in India itself, but

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in Central Asia, along the trade routes that had grown up since the first century bc, linking China with Rome (albeit tenuously). It subsequently spread primarily eastward along these trade routes (with some presence in the West too). By the fourth century ad, after the end of the Han Dynasty, it had become a major presence in China. In the seventh century ad, it was brought to Japan under the patronage of the royal family, where it remains to the present day as an integral feature of national life. For all of its impressive achievements, however, including at least an intermittent appeal to governing classes, Buddhism cannot be said to have made a major contribution to the development of international law. The probable reason is that it was too otherworldly in its orientation. At least in its early phases, it had a strongly individualistic focus, and its central theme was the promise that those embracing it could attain release from the cares and oppressions of everyday life. There was no doctrinal reason that the eightfold way (as the Buddhist path to salvation was known) could not be trodden by rulers. But Buddhism, in contrast to Christianity, did not become the official faith of any major power for any extended period of time. It was looked upon by Chinese officials with some wariness and was sometimes met with persecution (most notably during the Tang dynasty period in the eighth century ad). For all of its presence in Japan, the Japanese national identity remains more closely bound up with its native Shinto faith than with Buddhism. Most strikingly, Buddhism largely vanished from India itself. Some would say, of course, that its relative lack of connection with government is a great strength of Buddhism rather than a weakness. From the religious standpoint, that may very well be true. But it has prevented Buddhism from having any major influence on the development of international law. As a consequence of its inward-looking, contemplative ethos, and of its focus on the metaphysics of salvation of the individual soul, instead of on the details of everyday governance of peoples or relations between states, Buddhism largely moved itself to the margins of the history of international law.

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China and the Wider World With the unification of the various Warring States into a single centralized empire, the creative period of Chinese thought in the international relations field came largely to an end. This took place in 221 bc, under the aegis of the state of Chin. With this, the whole question of foreign relations within the Chinese world became obsolete. China would make no further important contributions to the science of international law. The very idea of a multistate system, in which the states were on anything resembling an equal footing, was, from this time onward, fundamentally alien to Chinese thinking. International relations henceforth took on a radically different character, since the concern was now with relations between Chinese society as a whole and the various non-Chinese nomadic states in inland Asia. The Chinese had a ready contempt for these peoples. In the Chinese written language, many names of foreign peoples had radicals for animals in their designations, indicating the low esteem in which these peoples were held. We must beware, however, of too hastily assigning to the Chinese (or to any ancient peoples) racist attitudes of the kind that are now all too familiar. The disdain for the barbarians was not—or at least not strictly or theoretically—racial in character. It was cultural. In principle, there was nothing to bar a person from one of the Central Asian tribes from educating himself in the Chinese classics and adopting Chinese ways. It was the lifestyles and cultures of the nomads that were held in such contempt. The prevailing Confucianist outlook prevented the Chinese from regarding the various nations as independent equals or as fellow members of a global moral community based on universal values. The effect was to make the very idea of international law—meaning a law between independent states—not merely difficult to entertain, but even impossible in principle. In a world that is regarded as containing, ultimately, only one country or one single system, there can hardly be any such thing as international law. When the Chinese did have contact with their Asian neighbors, they sought to enfold these foreign communities into their own national system— even if that necessitated the imposing of certain legal fictions onto inconvenient reality. Foremost among these useful fictions was the receipt of “tribute” from the barbarians. This took the form of gifts from the nomads in

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conjunction with diplomatic visits. Viewed from the Chinese standpoint, these gifts could be seen as reinforcing Chinese—and especially Confucian— ideals of inequality and deference. Because, in the Confucian ideology, benevolence was expected of an ideal emperor, it was not expected that China would attempt to conquer the neighboring barbarian states or impose its system onto them by force. It was sufficient that the barbarians, by dutifully presenting their “tribute,” acknowledged China’s position of supremacy. As an indication of China’s benevolence toward its rough-hewn neighbors, gifts would be given in return. From the nomads’ perspective, the presents to the Chinese could readily be regarded simply as routine acts of courtesy, rather than as a sign of subjection. Persons with exacting minds (such as lawyers) might find such an arrangement to be frustratingly ill-defined. But that was part of its strength. It enabled both sides to save face. It was also very flexible, easily adaptable to changing balances of power. It was not unheard of for China’s gifts to the neighbors to exceed in value the “tribute” received from them. Even a sharpeyed observer would sometimes have struggled to decide who was really paying tribute to whom. An unsentimental realist would have little trouble concluding that this relationship was really a subtle arrangement for buying security, with the accounts readily capable of shifting in amount and direction over time. Be that as it may, the system seems, for the most part, to have met the practical needs of both sides well enough. Precisely because the system was so flexible and adjustable, it could be very long-lasting. In the case of  relations with Korea, for example, it continued into the late nineteenth century. The tribute system may be regarded as the principal outward manifestation of the imperial Chinese attitudes toward international relations. It should be appreciated, however, that reality often diverged fairly considerably from theory. For example, in ad 783 and again in 822–23, the Chinese government entered into treaties with Tibet on the basis of full equality of status of the two parties. That is to say, the treaty was solemnly sworn by both sides and accompanied by the negotiators’ smearing their mouths with animal blood. There is some especially instructive evidence of Chinese concessions to harsh political reality dating from the period of the Sung dynasty (the eleventh to the thirteenth centuries ad). In this period, three or four neighboring states were regularly treated by the Chinese as kuo, or states of equal

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standing with China, while relations with other, lesser, countries continued on the basis of the tribute system. The most important of these kuo states was an especially formidable and well-organized people known as the Khitan, on the Celestial Empire’s northern flank. In a peace treaty concluded in 1005, the Khitan state was treated as entirely the equal of China itself. In fact, the treaty expressly provided for annual payments by China of silver and silk to the Khitan rulers. An internal government memorial prepared shortly after this treaty, surveying China’s foreign-relations position generally, reveals the Chinese to have been well aware of how precarious their official claims to universal empire were. It was clearly perceived to be necessary in practice to be flexible in dealing with other powers and to take due account of prevailing power relations. Even if these concessions to reality were necessary, however, they remained distasteful to the Chinese. It is evident from internal government records that the Chinese continued to regard their neighbors as inferior, however powerful they might be at a given time. Treatment of foreign powers as equals, in other words, was regarded as a regrettable anomaly, and not as a point of principle. As such, the practice was to be abandoned at the fi rst available opportunity. It is tempting to dismiss the Chinese official claims to universal rule as a bemusing combination of bluster, hypocrisy, and self-delusion. But that would be to miss an important point. It is more pertinent to regard the Chinese experience as a revealing demonstration of the way in which ideas can have a significance of their own, even in the face of opposing material forces. Chinese rulers may have been well aware of the de facto equal status of the major Asian states of their borders. But the stubborn and continued denial of that equality in principle constituted a firm conceptual barrier against the development of an image of a world of independent states of equal legal status— that is, against the very idea that would be at the core of later international legal thought. Instead of regarding the world as a congeries of equal and independent states, the Chinese continued to think of it instead as, in effect, simply a large-scale version of China’s own social system. Ideas of equality and independence of states would eventually be developed. But not by the Chinese. That major intellectual contribution would come instead from the Mediterranean world.

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Greece and the Birth of Natural Law It has been observed that the Greeks had a consciousness of their own cultural unity, notwithstanding their political divisions, and that the fundamental social division was not between the Greek states but rather between the Greek world as a whole and the barbarians. This was true even of the most enlightened Greek thinkers of the fift h and fourth centuries bc. “To a Greek,” as Plato put it, “the whole Greek race is ‘his own,’ or related, whereas . . . the barbarian race . . . is alien, and ‘not its own.’ ” It was in Greece, though, that the seeds of an important change first became evident. This was the development of a body of thought that became known as natural law, which would become one of the most distinctive and far-reaching contributions of Western civilization. It would run like a vein through international law throughout its history, up to the present day. Its roots lie in the ancient Greek belief that the workings of nature are not arbitrary or random, but instead exhibit—to those watchful enough to see it— regularity and predictability. That alone did not make the Greeks (or their successors) unique. What made them unique was their insistence that the operations of nature could and should be, in some sense, a model for human conduct—and even a source of legal norms. At the core of early Greek thought on natural law was the belief that human laws and customs were divisible into two broad categories: practices or rules that were universal throughout the human race, as distinct from those that were peculiar to individual states or groups of states. Aristotle called them special law and general law. Special law was “that written law which regulates the life of a particular community.” General law, in contrast, comprised “all those unwritten principles which are supposed to be acknowledged everywhere.” He went on to assert that “there really is . . . a natural justice and injustice that is binding on all men, even those who have no association or covenant with each other.” In time, the distinction often came to be expressed in terms of laws derived from nature (physis in Greek), as opposed to laws derived from human convention (nomos in Greek). This fundamental distinction—which would later be denoted as one between natural law and positive law—would have a very long life ahead of it. In the period following Aristotle, two schools of Greek philosophy arose that were especially noted for placing the primary emphasis on nature over

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human convention: the cynics and the stoics. The cynics—the word means literally “doglike” in Greek—resolved to live their lives exclusively according to nature. They therefore did not regard themselves as in any way bound by the peculiar conventional laws of any of the city-states. Their most prominent figure, Diogenes, was famously at home in a barrel, shunning all of the fripperies of then-modern life and claiming nothing more nor less than the whole world as his city-state. The stoics were much of the same persuasion as the cynics—though a great deal more conventional in their lifestyles—in holding the laws of nature to be of far greater consequence than the laws of man. They produced a far larger body of systematic writing on that subject. In contrast to the cynics’ focus on personal ethics and lifestyle, the stoics gave a great deal more thought to cosmological questions. In fact, they were the first school of philosophy to place the entire universe (or kosmos) at the very center of their thought. Ultimately, in their view, the entire human community must be seen as one single outsize city-state of polis—as, in the Greek terminology, a “world-city” or kosmopolis, from which our word “cosmopolitan” derives. The stoics went on to posit some very striking features of this universe. For one thing, in keeping with mainstream Greek thought, they regarded the universe not merely as a single entity, but even as a single living entity. There was a single “breath of life” (or pneuma) that permeated the entire universe, animating all living things—and in the process, binding all living things into, ultimately, a single great universal organism. This great organism, like organisms in general, had a life cycle, unfolding over time in the manner of an acorn gradually being transformed into an oak tree. But how much greater was the whole universe than a single oak tree! For this whole universe, there was ultimately one single body of law, comprising the innate properties of the great universal organism. Some stoics believed, furthermore, that the organic life cycle of the universe was unfolding according to a rigorously predetermined plan, with every action of every creature, for all eternity, plotted out to the smallest detail. For those who are attracted to grand systems characterized by interconnection and interdependence, stoicism can hardly be surpassed. Its grand (and slightly dizzying) universal vision has never been equaled as an extravagant, baroque, all-encompassing system of natural law.

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On a slightly more down-to-earth note, some stoic writers thought that the world had witnessed concrete steps in the direction of the realization of the ideal of the world as a single city. Alexander the Great was sometimes hailed (most memorably by Plutarch) as being inspired by such a vision. This claim would appear to have been exaggerated by a considerable margin. But it was not difficult to see, in the course of Mediterranean history, some trends that could clearly be interpreted in terms of stoic philosophy. One of these was the gradual decline of the independent city-states and their incorporation into ever larger groupings, first with the conquests of Alexander in the fourth century bc, and then with the unification of the Mediterranean world by Rome. We must take care not to regard the stoics as champions of anything that we would today call international law. They are much more accurately seen as champions of world government, in their insistence on the ultimate unity of the human race into a single polity. In this, they bore a resemblance to the imperial Chinese—though with the difference that, where the Chinese saw the world as (ideally) one single grand cultural system, the stoics regarded it as one single great natural system. The stoic vision, in other words, did not accord any inherently privileged position to Greek or Roman culture and could therefore be said to be more radically cosmopolitan in character than its Chinese counterpart. For present purposes, though, two other aspects of their thought are worth emphasizing, which would play a powerful role in the later development of European thought—including the development of international law. One was the universality of natural law. Natural law, on this thesis, was a comprehensively transcultural concept, applicable in full force to every culture and civilization on earth. Moreover—and this is the second key feature—natural law was the same for all historical time periods as well. It was, in short, eternal as well as universal.

Rome and the Ius gentium It was Rome, more than any other ancient society, that bequeathed a set of ideas that would later metamorphose into international law in the later sense of that term. To some extent, their thinking was borrowed (as usual) from

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the Greeks. There has been much speculation as to the extent of stoic influence on Roman lawyers. But it may safely be said that there is nothing in Roman law comparable to the grand universal organic stoic vision just outlined. Roman lawyers were a considerably more practical lot than the stoic philosophers and largely contented themselves with a far more Earth-bound picture. Natural law, to them, was essentially what it had been to Aristotle: a set of norms that were applicable worldwide and not simply to this society or that one. The basic idea was aptly summed up by Cicero, in words attributed to a speaker in a dialogue. Natural law (ius naturale) was described as “right reason in harmony with nature”—as a body of law that was “spread through the whole human community, unchanging and eternal.” Alongside this ius naturale, the Romans devised something that was largely their own invention. This was a body of law called the ius gentium. It translates as “law of peoples” and sometimes as “law of nations.” But to avoid possible confusion with other uses of these expressions, it is best to leave ius gentium in its original Latin, since it did not really correspond to any kind of law that is commonly recognized today, and since its meaning shifted significantly over time (as will be seen). The ius gentium, as devised by the ancient Romans, certainly did not correspond to what would later be called international law. That is to say, it was not a body of law which governed relations between fully independent states. It was, however, a law of universal applicability, transcending the boundaries of any and every individual state. More specifically, it was essentially a corpus of private law, governing relations between individual persons who hailed from different countries. One translation that has been given, for a usage by Cicero, is “common rules of equity.” In the second century ad, the noted Roman jurist Gaius described the ius gentium as “the common law of mankind.” The ius gentium first arose as a contrast to the ius civile (“civil law”), which was the law of the Roman city-state, that is, Roman law in its true and original sense. When Roman citizens had legal dealings with one another, the ius civile was the governing law. There were instances, though, in which Roman citizens had dealings with foreigners, and these, of course, became increasingly common as Rome’s political sway grew ever greater. Similarly, Roman courts were sometimes called upon to adjudicate disputes in which

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both parties were non-Roman. It was for the resolution of these disputes involving foreigners that the ius gentium was devised. To the best of our knowledge, the first significant step in this process was the creation of a new legal official in Rome called the praetor peregrinus (or peregrine praetor) in 242 bc. The task of this official was to hear disputes in which one or both parties were noncitizens of Rome. Since the civil law of Rome could not be applied to noncitizens of Rome, the praetor peregrinus took to deciding these cases on the basis of what might be called general principles of law. That entailed the identification of rules that were common to states in general (or at least were thought to be). Once these were identified, they would be applied to the dispute at hand. This corpus of common or general rules of law, emerging from the adjudications of the praetor peregrinus, became the ius gentium—the law of peoples in general. It would seem that, in practice, this original ius gentium was chiefly concerned with commercial transactions such as sales of goods. A few words must be said about the relationship between the ius gentium and natural law. They were alike in one highly important respect: that both were universal in scope, in contrast to national legal systems, which applied only to the individual states that promulgated them. By extension, it could be said that natural law and the ius gentium were alike, too, in that both were animated by a vision of the entire human race as forming, in some real sense, a single community—a moral or ethical community in the one case, and a legal one in the other. They were also alike in that, for both of them, the primary application was to the everyday conduct of ordinary, private individuals. Consequently, neither of them, in their initial stages, had any strong connection to what would later be called international law. At the same time, there were some important differences between the two bodies of law. If the ius naturale was the distinctive creation of philosophers, the ius gentium was the gift of lawyers. Where natural law was based on high-minded principles of ethics or (in the stoic case) on abstruse systems of natural philosophy, the ius gentium was distinctly practical and down-toearth in character. Its basis was human consensus, rather than the laws of nature per se. In other words, the ius gentium was a man-made law, and natural law was not. Natural law was, in some sense or other, part of nature itself, part of the fabric of the universe—and, as such, no more a creation of humans than was nature itself.

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There was some divergence of opinion among Roman writers as to whether the differences between natural law and the ius gentium were more fundamental than the similarities. Cicero, for example—who was highly knowledgeable about both philosophy and Roman law—apparently saw little difference between the two. Writing in the first century bc, he speculated that something on which all nations were in de facto agreement must surely be deemed to be a law of nature. If this were so, then natural law and the ius gentium must be, in reality, much the same thing in terms of content, even if their definitions were different. This position was echoed, at least implicitly, by the classical Roman legal writer Gaius, in the third century ad. He characterized the ius gentium in a twofold manner, as “the law that natural reason established among all mankind” and as the law which “is followed by all peoples alike.” The tendency of Cicero and Gaius to equate natural law and the ius gentium did not, however, predominate. Instead, a different picture won official support, in the form of inclusion in the Roman Emperor Justinian’s comprehensive compilation of Roman law in the sixth century. This alternate position was articulated by the classical jurist Ulpian in the third century ad. Natural law, he explained, “is not a law specific to mankind but is common to all animals.” It was therefore not rooted in “natural reason” as it was for Gaius, but instead was seen as a sort of innate, instinctive, biological feature of the animal kingdom in general. The ius gentium, in contrast, was confined to humans. Specifically, asserted Ulpian, the ius gentium was “that law which all human peoples observe.” What Ulpian did not explain was whether the ius gentium should be seen as a subcategory of natural law—that is, as that portion of natural law which was applicable uniquely to humans—or whether its content was altogether separate from that of natural law. In all events, though, he was emphatic that the two kinds of law were not identical. Ulpian helpfully provided some illustrative examples. Into the category of natural law, he placed marriage, along with the procreation and rearing of children. Into the category of ius gentium, he placed slavery—carefully noting that, according to natural law, all persons are born free. From Hermogenian, a legal writer of the third or fourth century ad, came the most detailed list of things included in the ius gentium. Rights of property and practices connected with commercial intercourse were identified as

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arising out of the ius gentium. In this respect, the ius gentium clearly had a strong private-law flavor. In addition, though, Hermogenian held that the ius gentium governed the establishment of public or political “properties” (kingdoms and nations), as well as the wars that broke out between them. Here we have, for the first time, a connection made by a professional lawyer between the ius gentium and matters that would later be regarded as the province of international law. On the basis of these various clues from the Roman jurists, some general observations may be safely offered. Natural law dealt with things instituted by nature itself. It was the set of laws by which the natural world operated—including universal laws of human behavior such as the formation of family units and the rearing of children. Humans had no realistic choice in the adoption or rejection of this set of laws, any more than they could accept or reject, say, the law of gravity. The ius gentium, in contrast, was a body of law that was invented by humans for their own convenience. It could therefore be added to or altered by human consensus over the course of time. This twofold legacy of natural law and the ius gentium was Rome’s distinctive gift to the history of international law. These would go through many changes in the future (as will be seen in due course). But they would constitute—even to this day—the very warp and weft of what international law would become. It is somewhat ironic that the Romans—generally regarded, with some condescension, as a coarsely practical people—should make their greatest contribution to international law in the realm of ideas rather than of practice. For Rome made no striking advances in the everyday techniques of international law, comparable to, say, the Greek development of interstate arbitration. We must finally note how different were the paths taken by the two great civilizations at the two ends of Eurasia—China and Rome. In both of these, there was a certain belief in a global law. But the conceptions were differed radically. The Chinese conception of world order was essentially that of a world state with a single hegemon—the Chinese emperor. The Roman vision was very different. In place of a benevolent universal ruler, it advanced the more abstract, but ultimately more powerful, idea of an impersonal and universal rule of law. Moreover, the Roman legacy of universal law, in both of its incarnations—natural law and the ius gentium—was sharply distin-

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guished from Rome’s own civil (or national) law. This divergence between Chinese and Roman ways proved decisive. It would, eventually, determine that international law would be a product not of China but of Europe. Medieval Europe, however, would be no mere passive recipient of its classical heritage. It would make important innovations of its own.

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Keeping Kings in Check

remarkable scene took place in the city of Lyon, in France, on July 17, 1245. A council of the Catholic Church was in session, at which Pope Innocent IV recited a lengthy cata logue of charges of misconduct against Emperor Frederick II of the Holy Roman Empire. They included heresy, the seizure of papal lands in Sicily, various acts of oppression against the church, and the employment of Muslims as soldiers—as well as keeping a harem of Muslim concubines, guarded by eunuchs. Pope Innocent then immediately proclaimed Frederick’s deposition as emperor. He was declared to be stripped of all of his titles and dignities, and his erstwhile subjects in his various realms (Sicily, Italy, and Germany) were absolved of all allegiance to him. It was a dramatic demonstration of how even the most prominent rulers—Frederick II was renowned as stupor mundi, “the wonder of the world”—could be subjected to punishment for misconduct. Behind the scenes, however, the position of the pope was far from secure. Although Frederick himself was not present, he was represented by very able legal counsel (his chancellor Thaddeus of Suessa), who insisted that there could be no condemnation without a public hearing before a judicial panel, where the accused party would have an opportunity to answer the accusations. Innocent—a prominent lawyer himself in addition to being supreme pontiff—agreed to this, but only reluctantly. He knew that Frederick was en route to Lyon. And he feared (on good grounds) that, when the emperor arrived, he would turn the tables by taking a conciliatory stance and thereby secure an acquittal from the council. To forestall this impending threat, Innocent hastened to pronounce the sentence before his enemy could arrive.

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Moreover, Innocent was well aware that his pronouncement would not be self-executing. Without the support of major powers such as the kings of England and France, as well as of prominent subjects of Frederick, it would be a mere empty gesture. Predictably enough, Frederick reacted to the news of his deposition with outrage and contempt. He vowed that neither the pope nor any church council could take his crown from him without a war. An armed struggle duly proceeded between Frederick and the various contenders for the crown (who had papal support). In the end, Frederick was defeated, and the Hohenstaufen dynasty came to an end. This story provides some interesting insights into medieval ways of thought and action—as well as into key aspects of international law. Perhaps the most distinctive feature of the European Middle Ages was the power of the papacy—a monarchy with a transnational reach, but also with a fundamentally spiritual, rather than material, nature. The Catholic Church certainly did not lack for earthly possessions. It possessed abundant lands and great financial might. It even, from time to time, raised armies to fight its various causes (as Innocent IV, for example, did in the conflict against Frederick). But these various material resources were—at least in principle—in the ser vice of high ideals rather than of grubby power politics. The ideals included, of course, the doctrines of the Catholic Church (heresy was among the accusations against Frederick II). But they encompassed the rules of natural law as well, which were an important part of medieval Europe’s inheritance from the ancient world. The significance of natural law for the development of international law can hardly be overstated. In a nutshell, it was the idea that there is a body of law above and beyond that of state governments. More than that, though, it was the notion that this law actually constrains governments themselves, just as it constrains ordinary people. This law was not, however, always selfevident, and it was never self-executing. To some modest extent, these shortcomings could be dealt with by the Catholic Church. It possessed highly learned men who could expound the content of the law, and it had various spiritual weapons that it could wield against evildoers in high places. Medieval Europe accordingly had extensive experience in the defining and enforcing of universal standards against governments. What medieval Eu rope did not have was a conception of international law in our modern sense, as a law applying specifically to relations between

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independent sovereign states. Far from deploring the juridical poverty of our medieval ancestors, however, we should instead admire their boldness. For in some ways, their version of international law was more ambitious by far than our own. They envisaged a world in which the rule of law made no concessions to even the mightiest of monarchs—and in which those monarchs were accorded no privileged position in draft ing the laws. Emperors and kings could no more alter the strictures of natural law than the fabled King Canute could command the tide to recede. Later international law would be much more compliant to the demands of power, in that it would allow the rulers of states to fi x the contents of the law as they chose. Underpinning natural law—as in the preceding classical age—was a powerful sense of an ultimate moral unity enveloping the whole of mankind. This sense was even stronger in the more restricted area of Western Europe, where the Catholic Church held sway. There was variety aplenty, to be sure, in medieval Europe. But pulling against it, at all times, were forces of universality. With the passage of time, local interests would gain ground. Pluralism would become a core feature of Western civilization—and of the international law that it produced. But the vision of unity would linger long, principally in the form of natural law. It is with us still.

Forces of Unity Medieval man had a touching faith in the ultimate unity of the world. This was in the face of considerable evidence to the contrary, since medieval society veritably teemed with diversity. Particularly with the spread of the feudal “system,” Christian Europe came to present a picture of the most bewildering fragmentation and variety. But for all of this, there continued to be a stubborn loyalty to certain key forces of unity. Three were of particular importance from the standpoint of international law. In ascending order of importance, they were the empire (i.e., the Holy Roman Empire), the papacy, and natural law. To the naked eye, natural law must have appeared the weakest by far—a wispy, philosophical sort of thing, with little or no impact on real life. It is one of the striking facts of Western civilization, though, that this intellectual construct would prove more durable as a unifying force

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than either church or empire. In its role as the foundation of international law, its consequences are with us still. We will look briefly first at the empire and the papacy, and then in somewhat more detail at the more salient features of natural law, and the important changes that it underwent during the Middle Ages. These changes entailed some significant rethinking of the relationship between natural law and the ius gentium. There will also be an exploration of the foremost achievement—at least in intellectual terms—of medieval international law, the development of just-war doctrine. There will also be an all-too-brief look at the practical, and extensive, body of law known as the ius commune, which also became a fertile source of rules for the later law of nations.

Universal Empire The collective medieval psyche was obsessed by the glorious memory of the Roman Empire, and it is not hard to see why. The empire appeared to have been incomparably greater and grander than the scattering of rude statelets that succeeded it. The city of Rome contained—or even constituted—the most striking evidence of this. With its population reduced by some 90 percent from imperial times, those remaining seemed to be living, huddled in squalor, amid a forest of spectacular buildings and monuments, all falling steadily into ruin. It was small wonder that people pined for the great days of the past. When Charlemagne was crowned emperor in Rome in 800, some regarded this as a reconstituting of the Roman imperial line. Charlemagne and his Frankish successors, however, made little of their ties to ancient Rome. It was only when the empire was reconstituted yet again, by the German ruler Otto I in 961, that the real continuity with the Roman Empire began to assume legal and political significance, with regular installations of the emperors in Rome by the popes of the day. That the Roman emperor—who became officially “Holy” in 1157—was the foremost ruler in Western Europe was not doubted. But the claims that were advanced on his behalf were truly startling: of universal dominion. It was canon lawyers who first asserted that the Holy Roman emperor was the lord of the entire world (dominus mundi) and that, as such, he possessed a residual de jure sovereignty over the entire world. Rulers of the various

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kingdoms, on this thesis, possessed merely de facto power, which they had somehow wrested from the grasp of the universal monarch. A prominent champion of this theory was the eminent Italian Bartolus of Sassoferrato, one of the most famous and learned lawyers of the Middle Ages. He lived in the fourteenth century, teaching civil law (i.e., Roman law) at the Universities of Pisa and Perugia and also serving as a judge for some five years. Bartolus insisted that the Holy Roman emperor was, de jure, the ruler of the whole world—even though, admittedly, this rule was not effective de facto over large portions of the earth. The best-known champion of the theory of universal imperial dominion was not, however, a lawyer, but a famous literary figure from the generation preceding Bartolus: Dante Alighieri of Florence, author of the Divine Comedy. His short work called De Monarchia (On Monarchy), written around 1314 (at about the same time as the Comedy), was a sort of manifesto of the principle of political univeralism. “[U]nity seems to be the root of what it is to be good,” he pronounced, “and plurality the root of what it is to be evil.” On that basis, he contended that mankind constitutes a single society that should be ruled “as one whole by one ruler.” And that ruler should be the Roman emperor. Dante’s vision was not, however, of a wholly monolithic global state. The supreme world sovereign, he conceded, would not deal with “trivial decisions in every locality.” The obvious reason was that “nations, kingdoms and cities have characteristics of their own, which need to be governed by different laws.” The supreme ruler was therefore pictured as a kind of general guardian of universal values, which transcended the local laws of the individual states. “[M]ankind is to be ruled by [the supreme ruler],” Dante posited, “in those matters which are common to all men and of relevance to all, and is to be guided toward peace by a common law.”  The hope, then, was that this universal rule would take the form of guidance from the supreme monarch, which would be dutifully received and accepted by the various national princes. Even as Dante wrote, there was no serious possibility of his ambitious dream being realized. Hopes for a unified world, if they were to have any chance of success, would have to take other forms. Two other alternatives were on offer: a spiritual one in the form of the papacy and a legal one in the form of natural law.

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The Papacy In the Roman Catholic papacy, the European Middle Ages possessed something that the world would not see again until 1945: a transnational authority whose legitimacy was widely recognized and which possessed certain powers to inflict various forms of punishment (or sanctions) onto rulers who were in breach of their legal obligations. An early illustration of this power at work occurred in the late fourth century, when Archbishop Ambrose of Milan personally barred Roman Emperor Theodosius I from entering the cathedral church of Milan because of a massacre committed by imperial troops for which Ambrose held the emperor responsible. Some of the powers claimed by the popes were exercisable by the Catholic clergy generally. The most notable of these was the power to excommunicate named individuals—to cut them off from contact with other members of the faith and to deprive them of their rights within the church. The power of excommunication was exercised against a number of rulers (and would-be rulers) in the course of the Middle Ages. In 1196, for example, Pope Celestine III summarily excommunicated King Alfonso IX of León for enlisting Muslim allies in an invasion of Castile. Pope Innocent III (1198–1216) made liberal use of this weapon. In 1209, he excommunicated King John of England (in a dispute over candidates for archbishop of Canterbury). The following year, he did the same to Emperor Otto IV. This act contributed to Otto’s replacement as emperor by Frederick II—who would later himself be deposed by Innocent IV at Lyon in 1245. Long before that event, in 1227, Frederick had been excommunicated by Pope Gregory IX for excessive dilatoriness in embarking on a crusade to the Holy Land. In 1324, Pope John XXII, playing an active role in a dispute over the emperorship, excommunicated one of the claimants, Louis of Bavaria. Ecclesiastical sanctions also included interdicts, in which church ser vices could be withheld from an entire area. These could be regarded as spiritual counterparts of the later practice of economic sanctions. In 1141, Pope Innocent II, locked in a quarrel with King Louis VII of France (over a church appointment), laid an interdict on any area that sheltered Louis. The same fate befell the kingdom of León in 1197 at the hands of Pope Celestine III, after King Alfonso IX’s marriage to a second cousin (contrary to church law). In this area, too, the most active pope was Innocent III. He placed the

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kingdom of France under an interdict in 1200, the Duchy of Normandy in 1203, and the Kingdom of England in 1208–14. King John of England, however, retaliated by confiscating church properties within his realm. The popes also claimed a general right of intervention to prevent or counteract the commission of sin. In technical terms, this was known as a jurisdiction pro ratione peccati. Innocent III claimed this power in 1204, in a decretal entitled Novit Ille. The immediate context was a complaint by King John of England against King Philip II of France for breach of a peace treaty between the two kings. On the basis of this general right “to recall [sinners] from vice to virtue,” Innocent assumed jurisdiction over the dispute. Analogous to the jurisdiction pro ratione peccati was the claim by the popes to a general right to prevent or punish violations of natural law. This was, in a way, the most interesting of all of the powers claimed by the papacy, since it clearly amounted to a claim of truly universal jurisdiction for the popes—over pagans and infidels as well as Christians. This thesis was advanced in the thirteenth century by Innocent IV. Perhaps the most sweeping claim made by the popes was to an inherent superiority over secular powers in general—entailing a right to depose rulers for misconduct. This right was first asserted in systematic form by Pope Gregory VII in the eleventh century—and soon put to the test. Gregory twice took action against Holy Roman Emperor Henry IV, both times combining the sanctions of excommunication and deposition. The first occasion was in 1076, when Gregory deposed Henry as emperor, with a separate act of excommunication following shortly after. Henry countered by purporting to depose Gregory as pope. On this occasion, Henry yielded and made his famous journey to Canossa to plead for, and receive, forgiveness and reinstatement from the pope. Henry’s need to deal with a Saxon rebellion in Germany seems to have provided a large part of his incentive to mend fences with Gregory. Soon afterward, when Henry had shored up his position within the empire, there was another falling-out between the two, with a second excommunication and deposition by Gregory in 1080. This time, there was no show of humility on Henry’s part. He responded by driving the pope out of Rome. Later popes followed Gregory’s lead, or at least attempted to. In 1206, Pope Innocent III deposed and excommunicated Count Raymond of Toulouse for giving support to heretics. It has been observed that Innocent IV

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performed the most dramatic deposition of all—that of Frederick II in 1245 at the Council of Lyon—although it only became effective after some years of warfare. Frederick was not Innocent’s sole target at that gathering. He also pronounced the deposition of King Sancho II of Portugal for failure to provide appropriate protection to Catholic clergy in his country. In this case, too, the action became effective only after Sancho’s military defeat and overthrow by rival Portuguese factions. An alternate device that popes could employ was to effectuate a de facto removal of rulers from power by wielding a power to grant dispensations from oaths—including oaths of loyalty by subjects to sovereigns. This had been the means by which Pope Zacharias was said to have forced the last Merovingian king from the French throne in the eighth century. Later, in 1324, Pope John XXII’s action against Louis of Bavaria included a general instruction to his subjects to cease their obedience to him. This power could also be exercised in support of monarchs. In 1215, for example, Pope Innocent III (now reconciled with King John of England) sought, in effect, to annul the English Magna Carta, by absolving King John of his oath to observe it. This was partly on the ground that it had been extracted under duress, and partly because it was prejudicial to John’s lawful rights as monarch. The high point of assertion of the papal claims over secular monarchs came with the pontificate of Boniface VIII at the end of the thirteenth and beginning of the fourteenth centuries. So assertive was he that it was rumored (quite possibly apocryphally) that, during the Jubilee of 1300, he appeared decked out in the imperial purple of the Roman emperors. Be that as it may, he did issue a bull in 1301 entitled Ausculta fili (“Give ear, my son,” referring to King Philip IV of France), which asserted the universal jurisdiction of the popes over all kings. Philip IV, however, ostentatiously refused to “give ear” as ordered. Several years later, in 1304, he forestalled a bull of excommunication by arranging for the storming of the papal quarters and arresting of Boniface. Boniface managed to escape but died several weeks later. On many occasions in the Middle Ages, popes played the less confrontational role of arbitrator in disputes between states. Since these generally did not involve claims to jurisdiction over secular princes, they led to comparatively little controversy. But here too, the record of success was a mixed one. In the late eleventh century, Pope Urban II mediated between Holy Roman Emperor

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Henry IV and the king of Sicily (who was a feudal dependent of the pope). His successor, Pope Pascal II, succeeded in reconciling the king of Aragon with his enemies. In the course of the twelft h century, the papal curia did impressive business in this line. An especially active pontiff in the arbitration field was (not surprisingly) Innocent III, in the early thirteenth century. He adjudicated conflicts involving Portugal, Aragon, Poland, Armenia, and even the Eastern Orthodox states of Bulgaria and Serbia. He also succeeded in reconciling Philip of Swabia and Otto of Brunswick with one another. At the time of his death in 1216, he was en route to a negotiating session in an attempt to resolve various disputes between the cities of Pisa and Genoa. It was therefore with some justification that Innocent—never modest in making claims for the papacy— pronounced the pope to be “the sovereign mediator upon earth.” His successor, Honorius III, continued the tradition by arbitrating a dispute between France and Aragon. The sovereign mediator was not always successful in performing his useful task. Pope Gregory VII, for example, was unable to stop Kings Philip I of France and William I of England from coming to blows. Attempts by Popes Alexander III and Celestine III in the twelft h century to reconcile England and Scotland were similarly unsuccessful. Nor did papal attempts to bring an end to the Hundred Years War between France and England in the fourteenth and fifteenth centuries bear fruit. There was some support for the contention that states were actually under a legal duty to submit their disputes to papal arbitration. This thesis was supported by Alanus Anglicus, a canon-law scholar from England (or possibly Wales) who taught at the University of Bologna in the period around 1190–1215. But he conceded that the idea did not command universal assent. Rulers, moreover, tended to resist it. This was instructively illustrated in 1296, when Pope Boniface VIII ordered Kings Edward I of England and Philip IV of France to come before his tribunal in Rome for the settlement of a war in which they were engaged at the time. They refused to obey. Two years later, they did agree to submit to papal arbitration—though making it very clear that they were doing so as a matter of their own choice and not in obedience to a papal command. To make sure that there was no room for misunderstanding, they pointedly designated their arbitrator not as Boniface but rather as Benoit Gaetani—to emphasize that the pope would be act-

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ing in his personal capacity as an individual and not as the incumbent of the Holy See. It is apparent, from the experiences of Boniface VIII and other pontiffs, that the actual influence of the papacy at any given time was heavily dependent on local circumstances and power configurations. Apart from the empire and the papacy, though, there was a third universalist force, which purported to constrain the conduct of wayward rulers—and, incidentally, of ordinary people, too. That was natural law. It was certainly less visible than either empire or papacy. It sported no purple robes or scepters or tiara. It did not pretend to possess any enforcement power. To many, it existed only in the vaporous outpourings of scholars. For the development of international law, however, it had a greater impact than either the imperial throne or the chair of St. Peter.

Natural Law—and Its Auxiliaries Between natural law and the Christian religion, there was a certain wariness. To contend that natural law was an adjunct of the Christian faith is very wide of the mark. Natural-law thought long preceded the advent of Christianity and was, in its inception, wholly a product of classical (i.e., Greek and Roman) civilization. It is impossible to overstate the importance of this point. Natural law was not religious either in content or origin, nor did the Christian faith have any privileged status within it. It was a law for the entire world at large, transcending the enormous diversity of the various human societies. At the same time, it is true that only Western European civilization devised such a body of thought. Indeed, natural law deserves to rank highly among the most distinctive features of Western civilization. What should be carefully appreciated, though, is that, even if the origin of naturallaw thought was thoroughly and distinctively Western, the content of the law was held to be applicable worldwide. Natural law, in short, was a radically cosmopolitan, universalist corpus of thought. In this important respect, European civilization was sharply different from other societies. China had no such conception of natural law in the sense of a body of law applicable equally to all societies. The Chinese view was that China’s own society was innately superior to all others, and hence

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that other societies were to be evaluated according to how nearly they conformed to Chinese ways. It will be seen that much the same ethos prevailed in the Islamic world, where the one body of law was held to govern the true believers, with infidels left to their own devices—and with no “master law” governing both. It has been observed that the stoic version of natural law, which had prevailed in classical times, had been strongly organicist or animistic in character. That continued to be the case long into the European Middle Ages. It can readily be detected, for example, in the common medieval ideal of a thoroughly integrated society—with an image of an organism as its leading metaphor. Just as the various organs and tissues of a living creature are united into a single, complex, cooperative system, so was the medieval social and political body seen to be made up of a great diversity of classes, occupations, skills, and so forth—all ultimately working together to produce (ideally) a harmonious social system. This organic image of an integrated and cooperative social order was set out most vividly in the twelft h century by the English writer John of Salisbury, who likened the head of the body to the prince, the heart to the senate, sensory organs to provincial governors, the hands to soldiers and civilian officials, and the feet to agriculturalists and craftsmen. At about the time of John’s writing (in 1159), however, a new conception of natural law—which we will designate as the rationalistic one—was gaining ground and would be the dominant one for many centuries to come. Natural law was not, however, the sole set of universalist norms at work in European society—nor even, in practice, the most important one. There were two other bodies of law that were, so to speak, closer to the ground, more closely connected to the everyday concerns of people in their social lives. One of these was the ius gentium, an inheritance from ancient Rome. The other was something called the ius commune, or “common law,” which was a specifically medieval invention. It was basically an amalgam of Roman law and the canon law of the Christian Church. From these sundry conceptual raw materials, modern international law would (eventually) emerge.

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A New Natural Law The new natural-law perspective that arose in the high Middle Ages does not have a widely recognized label. In the interest of a simple description, it will be referred to as the rationalist approach. It was associated to a great extent with the medieval discovery (or recovery) of the works of Aristotle. This is evident from the fact that the Dominican Order of monks provided the leadership in both of these areas—with Thomas Aquinas as the leading figure. In fact, the two features of severe rationalism, coupled with the dominant influence of Aristotle, became the hallmarks of medieval scholasticism in its most developed form. Aquinas, an Italian who lived in the thirteenth century, was actually a transitional figure in that he acknowledged that the fundamental naturallaw obligation to do good and avoid evil was innate in humans. But the ability to draw conclusions from this core principle required the employment of reason in a manner analogous to a geometrical demonstration. A crucial feature of natural law in its rationalist guise was that it was altogether independent of the will or command of God. God himself was as powerless to alter the truths of natural law as he was to play about with the truths of mathematics. By the same token, natural law could not be the property of any single culture, civilization, or religion—any more than the truths of mathematics could be. This new rationalist approach became the dominant tradition in natural law in the Middle Ages. As such, it exerted a powerful influence on international legal thought. The rationalist perspective entailed a rejection of the older animistic image of natural law as a kind of biological instinct, in the manner proposed by Ulpian. Natural law, in the new conception, was no more “written in the hearts” of men than were the Elements of Euclid. Natural law, in other words, was now seen as wholly external to the human frame—as transcendental in character, rather than as innate. Its contents are accessible to humans on this view, but only by way of disciplined study and reasoning, not as mere everyday common sense. This new kind of natural law was therefore, by necessity, in the distinctive custody of watchful scholars. The rationalist version of natural law retained certain important features of the older, organicist, stoic outlook. The most important of these was that, like its predecessor, it was not specifically, or even primarily, about relations

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between political entities. It was primarily about the conduct of ordinary persons in everyday life. Natural law was, however, relevant to international relations, in that rulers were legally bound to observe its rules in their dealings with one another, just as ordinary people were in their everyday lives. If international law is to be seen, therefore, as a law specifically applicable to the relations of sovereigns and states with one another, then it must be concluded that the European Middle Ages knew no such law. But it must equally be emphasized that the Middle Ages certainly did regard rulers as acting under legal constraints in their mutual relations. It is just that the contents of those constraints did not differ from those that were applicable to ordinary folk. In several respects, the shift from an organicist to a rationalist version of natural law had some unsettling consequences. One was the impact on the principle of the natural sociability of humans. It will be recalled that, to Aristotle, sociability was a “natural impulse” of humans—hardwired into the human biogram. It was automatically and inescapably part of the human condition. Under the rationalist scheme, however, that confidence was in danger of being lost. Aquinas salvaged it as best he could by simply positing that the rules of natural law are compatible with “our natural inclinations”— and that among these is “a natural inclination . . . to live in society” and “to avoid giving offence to those among whom one has to live.” Natural-law thought, therefore, even in its newer rationalist form, managed to retain the traditional commitment to the principle of the natural sociability of humankind. The world is, in this picture, fundamentally harmonious and orderly rather than chaotic and violent. This alliance between natural-law thought and the principle of intrinsic human sociability would continue to be a very solid one—to a large extent enduring to the present day. It should be appreciated, though, that the two are not really logically connected. This point would be demonstrated in the seventeenth century by Thomas Hobbes, who accepted natural law while brazenly discarding natural sociability. Hobbes, though, was one of nature’s great contrarians. For the overwhelming part, natural law and natural sociability traveled, at least de facto, in close harness. Another disturbing effect of the shift from an organicist to a rationalist picture of natural law was the implication that it had on the ius gentium. The old idea of Ulpian, that natural law applied to the whole of the animal

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kingdom, and the ius gentium to the human portion of it, was no longer tenable. In the rationalist scheme, natural law itself was confined uniquely to humans because only humans possessed reason. What, then, was the distinction—if, indeed, any at all—between natural law and the ius gentium? To this question, various answers were devised.

The Role of the Ius gentium Concerning the relationship between the ius gentium and natural law, three schools of thought emerged in the course of the Middle Ages. As they have never acquired standard labels, simple descriptive terms will suffice. By way of general introduction, it may be said that what differentiated the three was a difference of opinion on how closely the two bodies of law were connected with one another. The first theory, which we will call the “dualist” approach, held the two bodies of law to be more or less wholly distinct. The second school of thought, to be labeled the “substitution” theory, held the ius gentium to be a kind of second-rate substitute for natural law. Finally, the “emanationist” school (as it is being termed) held the two to be very closely connected, to the point that the ius gentium was actually a logical derivation from natural law. We will look briefly at each of these, because they cast very long shadows into the history of international law. There will then be a closer look at one noteworthy area where medieval legal thought on international affairs reached its highest peak: medieval just-war doctrine. Of the three schools of thought concerning the relationship between natural law and the ius gentium, the dualistic one posited the sharpest distinction. It held that the two bodies of law differed from one another in two key respects. The first was that the ius gentium was a human creation, while natural law was not. The second key difference—and the one justifying the label— was that the two bodies of law applied to different subject areas or spheres of activity. Of the three theories, this one bore the clearest mark of the Roman law origin of the ius gentium. In fact, it was basically an endorsement of Hermogenian’s position. The foremost figure of the dualist persuasion was a Spanish ecclesiastic and encyclopedist named Isidore of Seville, who lived in the seventh century. He came from a prominent family, served as bishop of Seville for thirty-seven years, and was instrumental in the conversion of the Visigoths from the

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Arian variant of Christianity to the Catholic one. The universal reach of his knowledge (by the somewhat modest standard of his time) was so impressive that it later (much later) led to his being suggested as an appropriate patron saint of the internet in the twenty-first century. According to Isidore, natural law and the ius gentium resembled one another in both being universal but in different respects. Natural law was regarded as being, by its very nature, inherently universal. It was applicable everywhere by virtue of its intrinsic perfection. Broadly in line with the organic outlook of the stoics, Isidore held natural law to be universal by necessity—that is, “by the instinct of nature” and not by “any regulation.” This was broadly the opinion of Ulpian. The ius gentium, in contrast, was universal in a different and lesser fashion—in what might be called an empirical or statistical sense. That is to say, it was universal by virtue of the fact that, de facto, “nearly all nations (gentes) use it.” What this conception clearly implied—but which Isidore did not explicitly expand upon—was that the ius gentium was a purely human creation. As such, it should be seen as a product of human free will. In addition, the two bodies of law applied to different subject areas. Isidore helpfully provided some illustrations. Principles and practices arising out of natural law included the union of men and women in marriage; children’s inheritance and education; the right of all persons to acquire anything from “the sky, the earth, and the sea”; the duty of persons to return things entrusted to them; and the right of self-defense (i.e., to use force to repel violence). Things falling into the category of ius gentium included wars (including the right to capture and enslave enemy troops), the right to occupy vacant territory, truces and peace treaties, the inviolability of foreign envoys, and prohibitions of marriages between different races. The similarity to the position of Hermogenian in the Roman-law Digest is clearly apparent. It will be observed that there is a basic difference between these two lists of topics. Things covered by natural law pertain largely to the conduct of individual persons, such as marriage, the bringing up of families, and the fending off of assaults. Things falling into the ambit of the ius gentium, in contrast, are activities of states, including various aspects of war making and peacemaking. Isidore therefore went a very long distance toward giving, as the realm of the ius gentium, topics that would later be taken, as a matter

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of course, to be in the sphere of international law. Perhaps Isidore could be the patron saint of that realm, as well as of the Internet. Isidore’s dualist approach won some support from later writers. One was Rufinus the Canonist, a bishop and jurist of the late twelft h century. “[T]he law of nations (ius gentium) is one thing, natural law another,” he asserted. The examples that he gave echoed those of Isidore. Other adherents of dualism included a number of the early scholars of Roman law in the eleventh and twelft h centuries. On the whole, though, the dualist school of thought lost favor over the course of the Middle Ages as compared to its two rivals. The second theory—the substitution thesis—went back, like the dualistic one, to the early Middle Ages. But where dualism bore palpable traces of Roman law, the substitution theory showed evidence of Christian influence— and specifically of the influence of the eminent Christian intellectual, Augustine of Hippo, who lived in the late fourth and early fift h centuries. The Augustinian influence is evident in the thesis that the ius gentium was a sort of diluted or debased version of natural law, suitable for humankind in its condition of woeful decline from an original state of grace (a topic of great prominence in Augustinian theology). Where natural law in its fullest and purest form had prevailed in the Garden of Eden, humans in their state of sin must make do with a more modest version. But this debasement referred only to the content of the law, not to its nature. The effect, therefore, was that the ius gentium was regarded as a form of natural law, albeit an inferior one. The substitution theory was invoked as an explanation for how it was that the Holy Roman emperor—who was supposedly the dominus mundi— patently ruled only a very modest portion of the terrestrial orb, with independent realms of various kinds accounting for the rest. An explanation in terms of the ius gentium was offered by Alanus Anglicus. He conceded that “the ancient law of nations” (meaning natural law in its original form) had allowed only one emperor for the whole world, but that “the division of kingdoms” had later been introduced by the ius gentium. An important feature of this substitution theory is that it allowed the ius gentium to differ in content from natural law, at least to a modest extent. Care should be taken to avoid thinking that the ius gentium could override or somehow repeal natural law. That was not contended. Rather, it was asserted that natural law was sometimes in an inactive state, a sort of hibernation—and that during that

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period of inactivity, the ius gentium would step in to fill the gap. The ius gentium, then, was definitely inferior to natural law. In an ideal world, which this one assuredly is not, there would be no ius gentium, but only natural law in its full and wide-awake splendor. The third school of thought—the emanationist one—posited the closest connection between natural law and the ius gentium. It was the latest of the three rivals to appear, and the one that most closely embodied the new rationalistic perspective. It regarded the ius gentium as flowing directly from natural law. As such, it was not quite identical to natural law, but at the same time was not altogether distinct from it either. This theory was supported by Aquinas, although in somewhat different ways in two separate discussions. In one treatment, he explicitly endorsed Ulpian’s thesis that natural law was common to all living creatures and then went on to state that the ability to derive conclusions from the initial propositions of natural law “by a process of reasoning” was unique to humans. The ius gentium was then described as the portion of natural law that was discernible only by reason and not by instinct—meaning, in effect, natural law itself in its rationalistic form. In his other discussion, Aquinas spoke of the ius gentium as being “derived from the law of nature as conclusions from principles.”  Despite some obscurities, Aquinas’s main point is clear enough. The ius gentium is a man-made law, but only in the very restricted sense that it is humans, rather than animals, who are able to employ reason and thereby to discover what natural law requires in a variety of specific cases. The effect, then, is that natural law comprises the broad general principles, and the ius gentium the conclusions which logically flow from them. Employing a geometric analogy, we would say that natural law corresponds to the axioms, and the ius gentium to the theorems—with the two being, of course, intimately connected by an unbreakable chain of hypothetico-deductive reasoning. On this view, the ius gentium could never actually contradict natural law, for the simple reason that it was a logical derivation from that law. A rapid summary of the three schools of thought can be offered. The dualistic position stands apart from the others in holding the contents of natural law and the ius gentium to be different. An important consequence was that this theory, alone of the three, gave full scope to humans to craft the ius gentium as they wished, according to their free will. The other two theories regarded the ius gentium as being an aspect of natural law. Consequently,

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the two bodies of law were seen to deal with the same subject matters. The two theories differed on the key point of whether the ius gentium rules could ever differ from those of natural law. The substitution theory held that they could. There would not, however, be an actual clash, because the ius gentium rules were applied only when the pure natural law was in abeyance. The emanation theory disagreed on this point. Because it regarded the ius gentium as being a direct logical outgrowth of natural law, any possibility of disagreement between the two types of law was ruled out, à priori, in principle. In general, medieval writers tended to reject Isidore’s dualistic stance and to favor instead a closer association between the ius gentium and natural law. There was never a clear consensus as between the substitution and the emanation theories. But it appears safe to say that the emanationist theory probably had the greater support, consistently with the prestige and influence of Thomist thought in general. For present purposes, the chief point to note is that, during the Middle Ages, the ius gentium was roped more or less closely to natural law—with the result that its ability to live and breathe freely was greatly restricted. It will be observed in due course that the ius gentium would later be freed from the natural law’s tight grip—a development that would mark the intellectual birth of international law as we have come to know it. But that would not occur until the seventeenth century.

Just-War Doctrine The crowning achievement of the ius gentium in the Middle Ages was justwar doctrine—a body of law that stipulated when armed force could justifiably be resorted to in order to put a stop to some kind of evildoing. This law was part of the ius gentium in all three of the theories just identified. According to Isidore, war fell into the category of topics allocated to the ius gentium. On the substitution view, war was seen as an institution of humanity in its postlapsarian state of sin. Even on the emanationist theory, justwar doctrine would be best seen as the application of basic principles of natural law to the very special circumstances of a resort to armed force. The initial concern of writers on the subject was to determine when, or whether, it was permissible for an individual to resort to violence. This was an especially difficult question from the standpoint of the Christian religion, in light of the strong support given in the New Testament Gospels to an

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ethic of absolute pacifism. The solution was provided, at least in outline form, by Augustine: to interpret the scriptures as prohibiting only egoistical resorts to force, for the furthering of one’s own ends. Using force in an altruistic manner, to promote the welfare of others, was importantly different. On this thesis, Christians could be allowed to perform military ser vice for the purpose of defending the Christian community as a whole against attackers or oppressors. Even if military ser vice was not positively good in itself, it could still be praised as a necessary (if regrettable) burden imposed upon worthy Christians by the depravity of the wrongdoers. This notion of force being justified in the general public interest, for the fighting of evil, formed the core of medieval just-war doctrine. Augustine himself did not trouble to go beyond the articulation of this basic thesis. But in the centuries that followed, the idea underwent some considerable elaboration. The details of just-war doctrine were never enshrined in a specific pronouncement of the Catholic Church, so that a number of variant versions were put forward. Nevertheless, broad agreement evolved on a fivefold schema of just-war doctrine, first set out in the early thirteenth century by Raymond of Peñaforte, a Spanish Dominican who taught canon law at the University of Bologna. The five elements—all five which had to be satisfied—may be identified briefly (in no special order). One element was auctoritas. This meant that war could be waged justly only by a sovereign or by a subject at the command of a sovereign. It could not be done by subjects on their own initiative. A second element was personae. This meant that certain persons were prohibited from participation in war, no matter how clearly just the cause was. Most importantly, this meant that clerics were barred from belligerent activity. Third was the requirement of res. This word, meaning simply “thing” in Latin, signified that the war had to have a defined goal or purpose—that the “thing” being fought over must be precisely identified. The clear implication was that, once this defined goal was attained, the war must stop. This principle, then, had the function of preventing a war from dragging on or degenerating into a conflict driven simply by the mutual hatred of the parties for one another. A fourth element of the schema—and in some ways at the very heart of the just-war idea—was the requirement of iusta causa. This meant literally a “just cause.” It should be noted that it meant a just cause in a strictly objective sense. In the dispute over the res, the just side is the one with the stronger legal case.

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It is not sufficient to fight in good faith, in the sincere belief that the law is on one’s side. The law must actually be on one’s side, or the war is unjust. In legal terminology, it would be said that there is strict liability on this point, meaning simply that no allowance is made for subjective considerations such as good faith. As a result, it was impossible in principle for a war to be just on both sides. Wars were seen as inevitably just on one side and unjust on the other, depending on which party had the law objectively on its side. The fifth and final element of the schema was animus. This referred to the subjective mental state of the combatant, though not to his opinion about the justice of his cause. Instead, it was a requirement that a fighter in a just war must do battle without personal animosity toward his foe. His battle must be against wrongdoing as such, and not against the wrongdoers as individuals. Here is the reflection, in just-war theory, of the Christian command to love one’s enemies. A just war should be seen as an enterprise in correction and instruction, and not in vengeance or bloodlust. War waged for greed or glory or for love of violence is unjust, even if the requisite iusta causa is present. A couple of general observations are in order about this body of thought. One is that it was, for all practical purposes, entirely nonreligious in character, even if its chief expounders were theologians, and even though the initial impetus for its development had been the challenge posed by Christian pacifism. Just-war doctrine was, of course, compatible with Christianity (most obviously in the principle of animus). But the religious allegiance of the contending parties played no part in the general structure of the theory. It should also be noted that the central concern of just-war doctrine was the permissibility of resorting to force, not the methods by which the hostilities were conducted. It should also be appreciated that just-war doctrine concerned the entitlement to take offensive action, in the sense of entitling the just side to take the initiative by striking the first blow and inaugurating the hostilities. A just war must therefore be carefully distinguished from self-defense in the strict and narrow sense, which is the fending off of an actual attack. This narrow right of self-defense was of vital importance, to be sure—but it was treated in medieval writing not as an example of a just war by a sovereign, governed by the ius gentium, but instead as the exercise of a general human right accorded by natural law.

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There were several important specific differences between just wars and self-defense. One was that the just-war principle of auctoritas did not apply, so that self-defense was available to ordinary subjects on their own initiative. In fact, self-defense could even be exercised against a superior. The principle of personae also did not apply to self-defense, so that even clergy were entitled to defend themselves when assaulted. Finally, the right of self-defense in the narrow sense was confined to warding off the attack. It did not authorize punitive action against the attacker, as was possible in a just war. Just-war doctrine must be seen as conservative in character, in the specific sense that it was designed for the vindication of existing rights. There was no conception that a just war could ever be a means for the creation of new rights that had not existed before. A just war was therefore, in essence, what could be called a war of execution, meaning a war to enforce the law. It could also be thought of as a police action. It was waged, ultimately, on behalf of the rule of law as such, and not merely in the parochial interest of the party waging it. The just-war schema did not have explicit rules about peacemaking, but the principles of res and animus placed some powerful constraints, if only by implication, onto the just side. If the just side was fortunate enough to triumph, then it was entitled to recover the res over which the war was fought. But the just victor must go no further than that. He is only entitled to gain (or recover) possession of that which was already his, in the eyes of the law, even before the war began. About the actual conduct of wars once they were under way, just-war doctrine had nothing explicit to say. Nevertheless, certain very broad principles concerning the conduct of war did emerge as logical consequences of the fivefold schema. For example, the element of res placed a limit, at least implicitly, on the duration of the conflict (by requiring the fighting to stop once the res had been attained). It also implied a limit on the quantity of enemy property that could be captured: the just side was entitled to take only so much as was necessary to satisfy its original claim, and no more. More significant was the element of animus. Any fighter who possessed the correct animus would refrain from committing any gratuitous or unnecessary violence against the enemy side, since the enemy soldiers were not, per se, the real target. This implicit ban on the commission of gratuitous or unnecessary violence remains a fundamental principle of the laws of war to this day.

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It is important to appreciate, though, that, for a very long time to come, this implicit ban on purely gratuitous destruction was the only limitation on violence in wartime dictated by just-war doctrine. More specific rules—or at least practices—on the conduct of war were devised in the course of time, as will be seen. But they arose from sources other than just-war doctrine as such. It must also be appreciated that medieval just-war doctrine was (in modern terminology) radically asymmetrical in terms of the principles relating to the conduct of war. Only the just side had any right to employ violence. Any killing done by the unjust side was simply homicide, and any taking of prisoners was kidnapping. For this reason, the unjust side had a legal duty to compensate the just side for any damage that it infl icted in the course of the conflict. Another general point about just-war theory is that, by its nature, it left little room for consideration of neutrality. It could even be said that neutrality was flatly contrary to the spirit, if not quite the letter, of just-war thought. The reason is easily seen. Since a just war was regarded as fundamentally a conflict for the suppression of evil, neutrality could hardly be seen in anything like a positive light. If anything, there was a duty on the part of all rulers to lend a hand to the just side in its struggle against the unjust one. This was not taken to the point of actually requiring other states to join the hostilities. But other states were expected to do nothing that would further the cause of the wrongful belligerent and to show partiality to the just side whenever feasible. One final general point about medieval European just-war theory should be appreciated. It must not be supposed that the proponents of the doctrine were so naïve as to think that the just side would always prevail in a conflict. There were simply too many examples in history—not to mention in the Christian Bible itself—in which evil overcame good on the field of battle. Victory and defeat were determined by the vicissitudes of war (and perhaps by the will of God as well), not by the legal merits of the dispute. The more subtle, and important, point that follows on from this is that, if the unjust side should happen to prevail in the struggle, it would not thereby obtain any greater rights than it had prior to the outbreak of the hostilities. It was never contemplated that mere might could make right. An unjust side that triumphed in a war no more obtained a lawful title to the res in question

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than did a highwayman to the property of his victims on the road. A key consequence was that the just side was within its rights to renew the struggle whenever it regained sufficient strength. As impressive as medieval just-war doctrine was in terms of coherence, it cannot be said to have had any great impact on the actual practices of states. Then as now, persons holding the reins of power tended to concentrate much more intensely on their personal or national interests than on the cerebral musings of scholars. Nor was the quantity of writing about just wars very large. For the most part, writers contented themselves with setting out the basic principles much as has been done here. In terms of actual impact on everyday medieval life, both natural law and its helpmate the ius gentium were eclipsed by a third corpus of universal—or at least Western European— law, known as the ius commune.

The Ius commune For all of the prestige that natural law had—even when fortified by the ius gentium—it should not be thought that the writing on the subject was very detailed or systematic during the Middle Ages. The great age of systematic exposition of natural law was far in the future—in the seventeenth and eighteenth centuries. In the entire medieval period, there does not appear to have been a single major treatise devoted to natural law as such (to say nothing of the ius gentium). Writers such as Aquinas rested content with stating the basic propositions of natural law (i.e., the axioms) and largely leaving it at that. Natural law might therefore be regarded more as a grand symbol of medieval universalism rather than an actual application of it to day-to-day affairs. For day-to-day life, a different body of law was devised, to which the bland label of “ius commune” (or “common law”) came to be applied. In terms of familiarity to modern audiences, the ius commune is very much the poor relative of natural law and the ius gentium. This is unfortunate, because it played a greater practical role in medieval legal life than either of its betterknown counterparts. Although ius commune means “common law,” it must not be confused with the English common law, which was a national law of England alone, that is, a law that was “common” to the whole realm of England. In broadly

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the same spirit, the ius commune was a law that was common to the whole of Catholic Europe—but especially to the most developed part of that region, which was Italy. As such, it was contrasted to the ius propria, the law of any particular jurisdiction. Two bodies of law contributed to the making of the ius commune. One was Roman law, which was rediscovered by Western Europeans in the eleventh century, when the full text of Justinian’s Digest came to the attention of scholars. The other main source was the canon law of the Catholic Church— which itself was strongly influenced by Roman law while (broadly speaking) placing a greater stress on substantive principles than on specific rules and formalities. If natural law and the ius gentium found their principal expressions in the writings of scholars (meaning theologians and philosophers), then the ius commune was the province of practicing lawyers and judges, whose task was to apply these general principles to the myriad problems of human social life. They did this chiefly in consilia, which were records of court proceedings and judgments or opinions of lawyers on specific issues put to them. These writings were, in the aggregate, enormously greater in bulk than the various expositions of natural law. They have been, however, much less accessible to later scholars, since they were diff used throughout the chanceries and archives of Europe. For this reason, the impact of the ius commune on the later development of international law has been underappreciated (and continues to await a full treatment). It is, however, apparent that many of the principles employed by later writers in the natural-law tradition actually came from this source rather than from the actual natural-law writing of the Middle Ages. Moreover, within the ius commune, the canon law contribution to international law has been especially overlooked. Doctrines about papal superiority over secular rulers, for example, were of canon-law origin. Much of diplomatic law and practice, too, arose out of church practices, and hence out of canon law. So did many of the specific rules that were devised concerning the conduct of war. At the same time, though, it should be borne in mind that natural law (and the ius gentium along with it) was, in principle, more cosmopolitan than the ius commune, because it was applicable to, literally, the whole human race without any distinction as to culture, history, or religion. The ius commune, in contrast, although it was a transnational law, was nevertheless

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a European and Christian law, not extending to the furthest reaches of the Earth. Even within the bounds of the European Christian world, forces were at work that tended to undermine the cosmopolitan and universalistic vision of which natural law was the centerpiece. With the passage of time, these would assume ever greater importance—and would (eventually) displace natural law from its status as the foundation of international law. That process would take a considerable time to bear its fullest fruit—it would reach its high point only in the nineteenth century—but the beginnings are to be found in the Middle Ages.

Unity Undermined Challenges to the medieval universalist vision took place at various levels. This occurred first, on a relatively small scale, in Italy with the rise of the communes. On a larger scale were the transalpine kingdoms. Accompanying this process, though connected only indirectly to it, was the rediscovery of Aristotelian political philosophy, with its key notion that states or governments are natural phenomena—and also are vehicles for the attainment of the fulfilling life. This was in marked contrast to the Christian idea of government as being, at best, a necessary evil—an instrument for suppressing or policing the basic depravity of the human character. Another important feature of the Aristotelian picture of the state—also sharply at odds with the Christian outlook—was the ideal of states as self-sufficient and firmly independent of one another. In the course of the Middle Ages, this spirit of independence gained ground, slowly but steadily, against the universalist claims of both emperor and pope, first in Italy and then further afield. Some (such as Dante) naturally regretted this process as one of degeneration from an ideal of unity and integration. Others saw it as a sign of freedom and self-determination of peoples. In either event, the process set the general shape of international law for many centuries to come. The central problem of international law would not be how to enforce the command of a global sovereign. Instead, it would be how to apply a general body of law (such as natural law) to the activities of a welter of mutually independent states.

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The Italian Communes The earliest distinctive sign of restive localism presenting a direct challenge to universalism is found in the Italian communal movement, which began in force in the eleventh century. Of the history of the communal movement itself, only the barest outline can be sketched here. At the heart of the medieval Italian commune, and virtually its defining feature, was an association of persons united by solemn oath for the mutual protection and tenacious defense of legal rights. The idea was to gather into the hands of the commune as much legal power as was possible under the circumstances—legal powers, that is, that were not subject to controls by any other party. The commune, in other words, was an independent association. Over time, the communes evolved away from their original status as associations of individuals and became territorial city-states very much on the model of the ancient Greek polis. But the spirit of independence continued to burn strongly. In their fiercely guarded independence and intense local patriotism, the communes prefigured the much later development of nationalism at the expanded levels of the larger nation-states. In fact, the galaxy of communal governments that arose in northern Italy can easily be seen, in retrospect, as a kind of dress rehearsal for later conceptions of the sovereign independence of states. Even at the time that they arose, it was clear that they posed a serious challenge to medieval ideas of unity—most immediately and directly to the legal integrity of the Holy Roman Empire, in whose territory they were located. The Holy Roman emperors accordingly made a heroic—though unsuccessful—effort to prevent the communes from usurping the prerogatives of the imperial government. Emperor Frederick I, most notably, in the second half of the twelft h century made a determined attempt to reclaim imperial rights from the communes. This occurred in 1158, at a conference called the Diet of Roncaglia, at which he met with representatives of fourteen of the cities. It was one of the great showcase legal events of the Middle Ages. Frederick had at his side four prominent civil law professors from the University of Bologna, and each of the cities had two legal representatives. The lawyers, reflecting their Roman-law training with its strong bias in favor of imperial claims, all sided with Frederick. But the communes continued to resist what they regarded as imperial encroachment on their prerogatives. They formed a military league

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that inflicted a decisive defeat onto Frederick’s imperial forces at the Battle of Legnano in 1176. In 1183, a full peace arrangement was concluded at Constance. The cities received three major concessions from the emperor: the election of their own magistrates, rights of government over adjacent rural counties, and the right to make their own laws. In other words, they were conceded internal autonomy. In return, the cities made a number of promises to Frederick. The citizens of the cities would swear loyalty to him. Magistrates, though chosen by the communes themselves, would be officially invested in their offices by imperial officials. For legal cases where the amount at stake was above a certain figure (twenty-five pounds in gold), there would be a right of appeal to imperial courts. Finally, the cities agreed to pay a levy when emperors traveled through them en route to their coronations in Rome. In practice, the rights gained were claimed by all of the communes in Italy and not merely by the ones represented at the conference. Also, the rights conceded to the emperor were, in practice, largely ignored, with the result that the communes emerged as the clear victors in the struggle. Making coherent legal sense of this new development posed a challenge to even the subtlest of legal minds. Bartolus of Sassoferrato made a valiant attempt at it. He was certainly well placed to craft a conceptual compromise on this issue. He was a spokesman for universal de jure rule of the emperors and a sometime legal adviser to Emperor Charles IV—but also a consultant to some of the Italian cities. His solution was to posit the idea of an independent city, which he called a civitas. The essence of its independence lay in the fact that it acknowledged no superior—civitas civi princeps (“the city its own prince”) in the succinct expression that he coined. There were, however, two vital caveats to this independence. One was that the cities still remained part of the Holy Roman Empire. The second was that the emperor must be regarded as the ultimate source of the powers of the city. The result, then, was that the cities were held to possess their treasured “independence” by imperial consent, as a kind of emanation from the emperor. Independence, in this very special sense, meant that the emperor refrained from exercising his imperial powers in the cities. Another way of putting it was to say that the emperor was the ruler of the Holy Roman Empire as a whole, but without being the ruler of all of its individual component parts.

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The result of Bartolus’s ingenious theory, then, was to reconcile two things that might be supposed to be contradictory: the independence of the communes and the retention of at least some vestige of their subordination to a larger legal entity. The resemblance of this thesis to later ideas of international law—involving states that are, at the same time, “sovereign” and yet subject to rules of law—has not escaped later observers. For his achievement, Bartolus has even been credited as “the fi rst theorist of international law.” 

The Kingdoms The various European kingdoms—chiefly Sicily (including the whole southern part of the Italian peninsula), together with the various transalpine states—presented some of the same challenges to medieval universalist visions as the Italian communes did. There were some differences, though. One was that the kingdoms had less difficulty in asserting their independence from the emperors. Notwithstanding theories of universal dominion on the part of the Roman emperor (as dominus mundi) by such writers as Dante, the majority view was that the various lands with kings of their own, such as England, France, Scotland, Denmark, and Hungary, were indeed independent states, separate from the empire. This was encapsulated in the common expression Rex imperator in regno suo (“A king is an emperor in his own kingdom”). This thesis was put forward both in France and in Sicily in the thirteenth century (with some uncertainty as to priority in time). There was papal support, too, for the proposition that rulers were not subject to outside controls for acts performed within their jurisdictions. This was held by a decretal of Innocent III entitled Per venerabilem in 1202, in which he conceded that the king of France, in dealing with his own vassals, was not accountable to the Holy Roman emperor. This statement has been regarded, with some justice, as a cornerstone of the principle of state independence and sovereignty. In a similar vein was a pronouncement in 1313 by Pope Clement V, called Pastoralis cura, which arose out of a complex dispute between Emperor Henry VII (Dante’s ideal for a universal monarch) and King Robert of Sicily. Clement held that, so long as a king remained within his own territory, he was not subject to any kind of legal process (such as a summons to appear before the emperor). This decree has

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been characterized as “the first legal expression of the concept of territorial sovereignty.” 

The Aristotelian Challenge Ideas of the independence of states received important reinforcement from one of the most important intellectual events of the Middle Ages: the rediscovery of the bulk of Aristotle’s writings. It will be recalled that he regarded the state (i.e., the ancient Greek polis) as a natural entity, with self-rule as its very essence. This was a very far cry from the standard medieval image of the state as a necessary evil. The Aristotelian view, which was especially influential in the Dominican Order of monks (which included Aquinas), was fundamentally hostile to ideas of universal dominion and correspondingly supportive of ideas of mutual independence of states—with implications of nonintervention by states in the affairs of one another. Aristotelianism, in short, was a philosophy of pluralism that directly challenged the universalist theses of empire and papacy. An expression of this new Aristotelian outlook can be found in the writing of a Dominican named John of Paris (Jean Quidort), who wrote in the late thirteenth century, in the generation after Aquinas. John was an avowed pluralist, maintaining that, because of the complexity of political life and secular power, it is not possible for universalism to reign in that sphere of life, as it can (and should) in the religious one. Different peoples have different modes of life, and there must therefore be different governments to accommodate them. Consequently, it is both necessary and desirable that there be a multiplicity of kingdoms. “There can be many different ways of living,” asserted John, “and different kinds of state conforming to differences in climate, language, and the conditions of men, with what is suitable for one nation not so for another.” He concluded, expressly invoking the authority of Aristotle, that “development of individual states and kingdoms is natural, [while] that of an empire or [universal] monarchy is not.”  A demonstration of how subversive the Aristotelian ideas could be, if taken to their logical extreme, was provided by the fourteenth-century Italian writer Marsilius of Padua. Neither a lawyer nor a theologian, his professional training was in medicine. He supported Louis of Bavaria in his unsuccessful claim to the Holy Roman emperorship. More memorably, he

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wrote a major work of political theory, Defensor pacis (The Defender of Peace), in 1324. The discovery that he was the author of this treatise (which strongly contested the right of the clergy to exercise political power) led to his exile at Louis’s court in Bavaria. For present purposes, Marsilius is notable for the pervasive influence of Aristotelian political ideas in his work. Echoing his ancient predecessor, Marsilius regarded the state as a natural phenomenon, rather than as an evil made necessary by human depravity. Reflecting his medical background, he likened the state to a living organism with a lifestyle consisting of successive stages. More than any other medieval writer, Marsilius dispensed with the idea of natural law. He did not reject the concept in principle, but he recognized it only as “the science or doctrine of right” and not as actual law. Law in the proper sense, he insisted, is “a command coercive through punishment or reward . . . in the present world.” The fundamental source of law, accordingly, is not reason but the will of the party promulgating it. Moreover, an indispensable sign of law is the omnipresent exposure to a sanction or punishment for its violation—just what natural law lacked. This is the clearest expression in the medieval era of what would later be termed the positivist conception of law. These Aristotelian ideas were unsettling for various reasons. For one thing, they made it relatively difficult to see how there could be law between states, if states were regarded as, in principle, entirely independent of one another. If there is no ruler of the body of states, how can there be any law between them? The answer, of course, was that even states that are independent of one another do not live in a normless world. They are still subject to the law of nature and to the ius gentium. But the Aristotelian outlook was nevertheless worrying in that, if these are regarded as the only constraints operating on states, then, in the absence of any enforcement or sanctioning mechanism, it is hard to see the international rule of law as being anything more than a scholarly reverie. That the international rule of law was a tender plant could hardly be denied (then or now). But it had some strengths in places that were not so obvious. Apart from the scholars, practical men were at work, too—not in monastic or university libraries, but out on the highways and sea-lanes of medieval Europe (and beyond). These adventurers faced many hazards—but they also showed an impressive degree of legal creativity in devising ways to reduce them.

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Customs of States With the ius gentium now seen as, effectively, a sort of secondary or derivative aspect of natural law itself, an important break was made with the old Roman-law ius gentium. By being so tightly chained (so to speak) to natural law, the ius gentium was deprived of its ability to evolve independently. That meant that it was now less well equipped to play what had been its original role in Roman law: the devising of a set of common practices, animated by a  rough-and-ready, commonsense equity, to deal with concrete, practical problems as they arose. That did not mean that the search for solutions to practical problems of international relations came to an end. Far from it. It only meant that the solutions devised were not neatly pigeonholed by academics and theologians into the neat compartments of “natural law” and “ius gentium.” They existed on the margins of medieval legal consciousness— but nonetheless effectively for that. It would appear that no precise label was ever given to these various ad hoc practices. They were basically forms of customary law. In its medieval usage, customary law referred to lawmaking from below rather than above— that is, to lawmaking effectuated by the people of a country on their own collective initiative, through day-to-day practice, as opposed to law that was handed down from above, by monarchs or parliaments. In international affairs, the position was similar, with various regular practices growing up and gaining hold over time. The actual status of these practices as law was not very clear. But so long as they were either widely observed de facto or else enforced somehow or other by some authority or other, there seemed no reason to deny that they were laws for practical purposes, if perhaps not in strict theory. In all events, three areas illustrate this process in action with particular clarity: maritime law, the law on the conduct of war, and the law merchant.

Maritime Law Bringing order to the seas has always been problematic and remains so to the present day. But the earliest important progress in this direction was achieved in the Middle Ages. It was largely the seafaring communities themselves that are to be credited for this. Several bodies of law were devised

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which, although strictly applicable only to restricted groups of persons, came to be widely accepted. The law of Rhodes, or Rhodian Code, was the earliest example. It was thought to be of ancient origin (from about 300 bc), but our earliest actual reference to it is only in the seventh century ad, by Isidore of Seville. The maritime laws of the Italian city of Amalfi (known as the Amalfian Table, or the Tabula amalfintina) dated from around 1100 and were in general use among the city-states of Italy. Seaport towns on the Atlantic and North Sea coasts commonly made use of the Laws of Oléron (a small island in the Bay of Biscay), which were compiled around 1150 (and published in Rouen in 1266). In the Baltic Sea area, the Laws of Wisby, issued by a port city of that name on the island of Gotland in about 1350, were similarly widely followed. This corpus may in turn have been based on the Laws of Oléron. A set of laws issued by a body of merchants in Barcelona, called the Consolato del Mare (“Consulate of the Sea”), promulgated sometime between the eleventh and thirteenth centuries, also had a wide impact. These codes dealt with a host of practical questions involved in day-today maritime trading. The Consolato del Mare was noteworthy, in addition, for providing the first elaboration of rules dealing with maritime neutrality. It has been observed that official just-war doctrine frowned on neutrality and provided no rules on the subject. But practical men needed some regular procedures and proceeded to devise them on their own. The principal problem was what to do about neutral goods carried on belligerent ships. If the ship was captured, could the neutral-owned goods be taken too? The Consolato held not. Conversely, if goods owned by a national of a belligerent state were being carried on a neutral ship, then the belligerent’s enemy could capture those goods but not the vessel or any neutral-owned cargo. The maritime states of Western Europe, in the later Middle Ages, began to devise a system of prize courts and prize law to deal with maritime captures. (“Prize” comes from the French prise, meaning “taken,” in the sense of captured.) This was an arrangement in which goods were not taken from ships at sea by the captors on their own (sometimes rather rough) initiative. Instead, the ship itself was captured and escorted, with cargo intact, into a port. In the parlance that developed, the captured ship would be said to be “taken into prize.” The owners would then have the opportunity to contest the legality of the capture before some kind of judicial authority or body. This practice of prize adjudication began in England in the late thirteenth century, with other

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European maritime states following the English lead. In France, for example, an ordinance of 1400 provided rules for prize adjudication. The question of state sovereignty over the seas, or portions of them, caused difficulties. While it was widely recognized in natural law that the seas were free and open to all of humankind, there were contentions that this principle applied only to the wide oceans, with coastal states then being allowed to assert jurisdictional claims of varying kinds over sea areas to which they regarded themselves as having historical ties. Venice, for example, claimed sovereignty over the Adriatic Sea and Genoa over the Ligurian Sea. There was natural room for overlapping claims if this were allowed. For example, both France and England claimed sovereignty over the English Channel. A somewhat different approach to this question was taken by the county of Flanders, which claimed sovereignty not over a whole sea area, but only over a coastal strip (stroom in Flemish, or estrum in French) immediately off its own coast. The French government formally recognized Flanders’s title to the stroom in 1370. England, along with the Dutch states of Holland and Zeeland, followed suit in the early fifteenth century. In 1394, Holland claimed the entire Zuyderzee as a stroom. The actual width of a stroom was, however, the subject of some uncertainty. In the fifteenth century, it came to be generally acknowledged that the width of a stroom was the distance from which a person at sea could discern the coast and its buildings, which would be about three German leagues, or twenty-one kilometers in modern terms. One of the lawyers who addressed this problem was Bartolus. He lent his considerable prestige to the right of states to claim sovereignty over offshore sea areas—in his opinion, extending to “a modest distance” of two days’ sailing from the land (or about a hundred miles). This figure was apparently taken from the canon-law standard for determining “neighboring.” One of Bartolus’s students, also a highly learned lawyer, Baldus of Ubaldis, was more restrained, allowing about sixty miles. There was a great deal more disputing to be done on this vexed question for a long time to come—not until the late twentieth century would the matter finally be resolved. The wheels of justice turn particularly slowly when they are being pulled in different directions by interested parties.

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The Conduct of Wars It has been observed that just-war doctrine had no specific rules about the conduct of wars, but only a general prohibition against purely gratuitous violence. Here, as in other areas of medieval international relations, canon lawyers made an important contribution. Raymond of Peñaforte, for example, pondered such questions as the use of catapults and archers in war. He also considered crimes committed during war, such as robbery, rape, and arson. Aquinas, in scattered places in his writings, touched on questions of proper military conduct, insisting, for example, at least in general terms, on proper discipline and morale among soldiers. He duly condemned desertion and approved of the wearing of insignia by soldiers to facilitate recognition. One issue on which there was a division of opinion among writers was the question of keeping faith with an unjust enemy, for example in the making of truces. Some writers forbade entering into any agreements with an unjust enemy in the first place. Others held such agreements to be permissible—and that, if they were made, they must be faithfully kept. It should be appreciated, though, that what was at stake here was an application of the general natural-law duty of good faith to one’s fellow man and not really a rule about the conduct of war per se. The prevailing conclusion was that the general natural-law duty of good faith retained its force even during time of war. To some extent, the church took direct steps to mitigate the horrors of war. This was done in several ways. One was through something called the Peace of God, which was directed toward the protection of various classes of persons from attack—women and children, clerics, peasants, and unarmed noncombatants in general. Gratian’s Decretum, the great canon law commentary of the mid-twelft h century, had several provisions to this effect, as did the Third Lateran Council of 1179. In addition, there was the Truce of God, which restricted the time periods in which wars could be waged. Warfare in the period of the week from Thursday to Sunday came to be prohibited in canon law. In one notable instance, there was a restriction on specified types of weaponry. This was a canon of the Second Lateran Council, held by the Catholic Church in 1139, which condemned “that murderous art of crossbowmen and archers, which is hateful to God” and prohibited the employment of these

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weapons against Christians. Their use continued to be allowed against infidels and pagans. The ineffectiveness of this prohibition, however, was evident in the deadly use of archers by the English against the French during the Hundred Years War in the fourteenth and fifteenth centuries, as well as in the continued use of crossbows by various armed forces. In addition to these contributions of the Catholic Church, various customary practices grew up concerning warfare. Declarations of war are an instructive illustration. The making of a formal declaration at the outset of a war was not, as such, among the requirements for a just war in medieval just-war doctrine. Nor was there any strong sense of anything called a state of war. Nevertheless, it was the practice of the European states to make some kind of formal declaration or gesture to the opposing side at the commencement of a war. It might be a declaration conveyed by means of a herald (a professional official messenger), or it might consist of some dramatic symbolic act, such as the throwing down of a gauntlet (or glove). Not until the fourteenth century was an attempt made at a comprehensive summa of the laws of war. This was by a prominent Italian jurist named John of Legnano, who taught both civil and canon law at the University of Bologna. His Treatise Concerning War, Reprisal and the Duel, written in 1360, may be regarded, with some allowances, as the very first important book in Western civilization on international law. He was said to have been stimulated to write it by the vivid personal experience of being present in Bologna during a siege. It was, however, a popularized version of John’s treatise that achieved the wider circulation in the Middle Ages. This was written by a Provençal monk named Honoré Bonet (or Bouvet). Bonet spent several years in Avignon, in close contact with the university there, as well as with Pope Clement VII. He also served as prior of a monastery and qualified as a doctor of canon law. His book, entitled The Tree of Battles, was published in 1387 and dedicated to King Charles VI of France (for whom he later undertook some diplomatic ser vices). Largely a summation of John of Legnano’s exposition, the book treated a host of practical questions arising in war, such as strategy, orga nization, and preparation. It also covered a range of legal topics, including the entitlement of soldiers to wages and indemnities, issues of ransoms, questions regarding truces and wagers of battle (set-piece contests by appointed champions), and various puzzles arising from multiple loyalties

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(such as the position of persons who were vassals of two lords at war with one another). Bonet’s work was in turn followed up—and largely replicated—by Christine de Pisan in the early fifteenth century. Of Italian family origin, Christine grew up in France, where her father served as a physician and astrologer to King Charles V (of whom Christine would later write a noted biography). She is now remembered largely for her concerns about the position of women in medieval society. Her contribution to international law was a book entitled Feats of Arms and Chivalry, written around 1410. As a self-proclaimed “simple little woman,” she modestly invoked the aid of Minerva, the Roman goddess of both wisdom and war. Her debt to Bonet was evident in an unconventional manner, through a vision of him. She proceeded to recapitulate the writing of her “dear friend” and “dear master” (though it is not likely that they ever met), even following closely the order of topics covered by Bonet. Later in life, she retired to a convent. The largest body of medieval practice concerned prisoners of war, an area in which it is possible to report some progress. The ancient practice of enslaving prisoners of war (or simply killing them) fell into disuse, at least in conflicts between Christian powers—“according to the customs of modern times,” as John of Legnano explained. In its place, a system of ransoming prisoners grew up, which, over the course of time, became extremely elaborate. The subject of ransoms, in fact, provides one of the most striking illustrations of the legalistic medieval mind in action. In general, a prisoner was regarded as belonging to the individual soldier who captured him. The captor and the prisoner would then proceed to negotiate ransom terms, which were often reduced to writing. The standard arrangement was that the prisoner would promise to pay an agreed amount of money to the captor, perhaps in periodic installments. He would typically promise to be a good and loyal captive, in a manner resembling the swearing of vassalage in feudal arrangements. Agreements sometimes contained details of the treatment of the prisoner—with the captive having a legal action against his captor (at least in theory) in the event of a breach. The ransom amounts naturally varied with the rank of the captive. When King David II of Scotland was captured by the English at the Battle of Neville’s Cross in 1346, for example, the ransom sum (agreed after eleven years) was for some £66,000. The literary figure Geoffrey Chaucer, in contrast, following his

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capture in 1360 at the siege of Rheims, fetched a more modest £16. Pending the payment of the agreed ransom sum, the captive was held as a kind of hostage. The wait was sometimes a long one. When Charles d’Orléans (the French literary figure famous for his ballades and rondeaux) was captured by the English at the Battle of Agincourt in 1415, for example, he was held for twenty-six years before his ransom was paid in full. If a prisoner’s ransom was paid on his behalf by another party, then that party thereby acquired a lien over the released captive, together with a legal claim on him for indemnification of the amount paid—with the net effect being, then, that the prisoner’s payment obligation was simply redirected from the captor to the ransom payer. One of the most prominent prisoners of the Middle Ages was King John II of France, who was captured by the English at the Battle of Poitiers in 1356, during the Hundred Years War. After some four years as a prisoner, the Treaty of Brétigny was concluded, in which the “king’s ransom” (all too literally) was fi xed at three million crowns. John was then released, with his son left in English custody as a hostage pending the payment. The escape of the son from England angered his father, as a grave breach of honor. This act, combined with an inability to raise the ransom money, led John to surrender himself to the English—an act of nobility that astonished his contemporaries. His captors appropriately held him in great honor as an exemplar of upright conduct, but he died shortly after his arrival in England, in 1364. Another famous royal captive, incidentally, was King Richard I of England, who was taken prisoner in 1192, but that was in essence a case of kidnapping rather than of capture in war.

The Law Merchant With the great fragmentation of jurisdictions in the Middle Ages, problems of finding a suitable law to apply to cases of foreign trading risked becoming very acute. The solution reached, largely by the merchant community itself, was, in effect, to devise a transnational, uniform body of customary law. This was very much in the spirit of ancient Roman ius gentium, which had been largely a law of commercial transactions between private individuals. This medieval counterpart of that earlier law became known as the law merchant. It dealt with the myriad problems that arose in international

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trading—from shipping and insurance, to pledging and pawning and depositing, exchanging currencies, borrowing, lending, mortgaging, transferring funds, and much else. There were institutional elements as well. The most important of these were the various fairs held in Europe, in which merchants from far-flung places would congregate to buy, sell, and exchange goods—and to resolve disputes. There were judicial facilities at the fairs, known by the colorful name of “pie powder” courts (apparently from the French pieds poudrés, meaning “dusty feet”). The details of the law merchant and its history are fascinating, but they are really part of the history of commercial law rather than of international law as such. It will suffice for present purposes to take brief note of various ways in which governments lent their support to the development of international trade. Rulers sometimes took great care to attract foreign merchants into their territories by such means as offering special quarters of towns where they could live permanently under the laws of their home states. Governments were often very aware of the value of trade—and of the need to provide appropriate legal protections for it. Three particular devices may be identified. The first was the concluding of commercial treaties, to enable nationals to trade in foreign states under specified conditions that could be known in advance. Such treaties are first evident in central and northern Italy. The oldest one on record was apparently between Venice and Pavia in 840. It guaranteed to the subjects of each city the freedom to trade in and with the other. It also prohibited the levying of new taxes on navigation or the circulation of goods, as well as barring Venice (then active in slave trading) from subjecting Italians to slavery. Many other commercial treaties of this general character were concluded between the various European powers over the ensuing centuries. Some were with powers outside the Latin Christian world. For example, Venice concluded a far-reaching commercial treaty with the Byzantine Empire in 992, which fi xed the rates of duty on merchandise imported into or exported from the empire by Venetians. It also placed a maximum limit of three days on delays to which Venetian ships could be subjected when leaving Byzantine ports. A subsequent treaty of 1082 went much further by granting Venetians complete freedom of trade and navigation throughout the Byzantine Empire, including exemption from all taxes (except possibly in the Black Sea area).

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A second ser vice that governments performed for traders was to bring legal claims on their behalf against foreign governments in cases of mistreatment. This is a form of international law activity that remains part of day-today state practice to the present day. An instructive instance occurred in 1232, when a Genoese merchant complained of mistreatment by English authorities on the island of Oléron. He alleged that, upon landing on the island because of distress of weather, his goods were confiscated by the local authorities without cause. The merchant informed his own authorities of his plight, who then in turn made a complaint to the English government on the matter. The ultimate result of this complaint is not known, but the affair provides an early illustration of what international lawyers would call a claim—meaning a formal representation by one government to another of a legal wrong, with a view to receiving compensation of some kind. The third major legal ser vice that governments offered to merchants was the licensing of reprisals. Reprisals were a sort of combination of claims on behalf of nationals and just wars. They resembled claims on behalf of nationals in that they were designed to deal with injuries to private parties rather than to states. But they resembled just wars in involving a resort to force—though in the form of capturing property, not of attacking persons. Reprisals differed from just wars in two other respects as well. First, the force was employed only by the injured party himself and not by the armed forces of his country generally. Second, reprisals were taken not against the actual wrongdoer, but instead against surrogate parties who had not personally committed the original wrong. Specifically, reprisals were taken against fellow nationals of the original wrongdoer. Fundamental to the phenomenon of reprisals was the principle of collective responsibility of a community for wrongs committed by its members. If a merchant from, say, England was doing business in France and, in the process, was defrauded by a French trader, then French traders in general could be made responsible for compensating the injured party. The English merchant would petition his own monarch for a license to take action against French traders located in English territory. Th is license came to be called a “letter of reprisal.” It functioned as a sort of search-and-seizure warrant, entitling the holder to enter the premises of French traders in England and to confiscate property from them, up to the amount of his original loss.

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The reprisal process was subject to close judicial scrutiny. In requesting the letter of reprisal, the allegedly injured party had to provide evidence to his government of the wrong and of the amount of damage actually suffered. The letter would state on its face the quantity of damage adjudged to have been sustained—and that amount would then be the upper limit that the merchant could take from the fellow nationals of the wrongdoer. Any property which he captured had to be brought before a court for valuation to ensure that he was not being excessively generous (to himself) in his indemnification enterprise. Once the official valuation figure was attained, confiscations must halt. With some modest adjustments, this letter-of-reprisal system could operate on the high seas as well. In this case, the holder of the letter would be authorized to fit out a ship and to carry out his property captures on the high seas. This authorization was commonly referred to as a “letter of marque,” on the basis that it permitted the holder to go outside the territory of his state (i.e., beyond the frontier, or mark in German) to obtain his compensation. It will immediately be appreciated how close this practice came to being mere piracy, which was robbery committed on the high seas. What distinguished lawful reprisals from piracy was the possession by the captor of a letter of marque from his sovereign. This practice of reprisals, as just described, was a purely medieval invention, having no roots in Roman law. In Roman law, responsibility was entirely personal, with no element of collective responsibility or, as it were, guilt by association. For that reason, lawyers tended to look askance at the practice. One such was the Italian Alberic of Rosate, a prominent practicing lawyer in Bergamo (and the author of a noted treatise on municipal statutes in the Italian cities). Writing in the early fourteenth century, he asserted that the practice of reprisals was contrary to natural law—but that it was allowable nonetheless when there was no mutual superior over the two states involved. That reprisals became fully accepted in practice is evident from no less an authority than Bartolus, who wrote a treatise on the subject. The substance of this found its way, in turn, into John of Legnano’s book, alongside his exposition of the law of war. Bonet and Christine de Pisan also treated the subject in their works. A disturbing feature of reprisals was that they could be all too easily abused. An unscrupulous merchant might obtain a letter of reprisal on the basis of a false claim. Or the quantity of the loss suffered might be exaggerated. There

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was some concern, too, to protect persons of very modest means from being the targets of reprisal action. For these various reasons, the church took a stand against reprisals. In 1274, the Second Council of Lyon pronounced them to be “oppressive and contrary to the laws and natural equity”— although the principal focus of this denunciation was the exposure of ecclesiastics to reprisals, rather than of laypersons generally. In response to these various objections, some steps began to be taken to mitigate some of the harsher features of reprisals. For example, various categories of persons were commonly exempted from reprisals. Clerics, of course, were one of these, as befitted a religious age when theologians did so much of the legal writing. Students were also generally exempt, as were peasants and shipwrecked sailors. It became common for grants of commercial privileges to merchants to include exemptions from reprisals, typically by providing that only the goods of principal debtors could be seized, and not those of third parties. The Italian city-states pioneered the practice of concluding treaties that restricted or prohibited reprisals. An early example was an agreement between Bologna and Modena concluded in 1166. The transalpine kingdoms followed suit, though only much later. In 1490, for example, England and Florence concluded an agreement restricting reprisals, as did England and Burgundy in 1496. Reprisals would continue, though, to be an important part of international practice, and law, for many centuries to come. It was possible for sharp-eyed rulers to see the system of letters of marque as a useful resource in times of war for bolstering naval strength. Upon the outbreak of a war, a prince could issue letters of marque to any private parties who were willing to fit out a ship and go to sea to capture ships belonging to enemy nationals. Now, however, there would be no requirement for the letter holders to have been victims of any wrongs. Nor would there be any specified upper limit to the amount of property that could be captured. Holders of letters of marque in this situation would thereby become auxiliaries of (or even substitutes for) their state’s official naval forces. As an inducement to the risks that would be run, the holders of the letters of marque would be entitled to a stated proportion of any property that they succeeded in capturing. An example of such a commission by the English government is in evidence from as early as 1242. In later centuries, holders of letters of marque of this type would become known as “privateers.”

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Privateering was subject to some obvious abuses—chiefly to the risk that the privateers would not confine their depredations to vessels of the enemy state, but would engage in indiscriminate plundering. To deal with this problem, it came to be required that ships captured by privateers had to be brought before prize courts, so that the lawfulness of the capture could be adjudicated. The value of the capture would be adjudicated, too, to ensure that the government received its due share of the proceeds. With the passage of time, it became common to require privateers to post bonds, that is, to put a sum of money on deposit as a kind of insurance against damages that might be owing later for unlawful seizures. More than any other topic, that of reprisals and privateering vividly illustrates the process of decentralized, do-it-yourself enforcement that is so closely associated with international law. With sufficient safeguards provided—such as prize courts to adjudicate the lawfulness of captures and requirements that privateers post bonds—the practice could provide some relief for victims of violations of law. Also, the web of common practices among the maritime states of Eu rope helped to provide a certain stability to the system. But merchants—and other sorts of adventurers, too—sometimes ventured far outside the region of Western Europe to farflung parts of the world, beyond the reach of the law merchant or the ius commune, where even the bond of the Christian religion was absent. In such cases, the law of nature—that supposedly universal and eternal set of norms—would be the only legal guide. In these disquieting circumstances, natural law would be called upon to shoulder some heavy burdens.

chapter three

New Worlds and Their Challenges

ne day in 1534, the Dominican monastery of San Esteban in Salamanca played host to a notably interesting guest. This was a cleric named Vicente de Valverde, who regaled his clerical hosts with stories of his recent travels—which were, by any standard, riveting. Valverde had served as chaplain to a Spanish adventurer named Francisco Pizarro, and in that role had been at Pizarro’s side in the conquest of Peru. He told tales of the wondrous riches that had been amassed, although it is not possible to say how candid he was about some of the methods used by his employer— including the kidnapping of the Incan ruler in breach of a truce, followed by a general massacre of natives. It may be surmised that serving as the confessor of Pizarro may have been a demanding and time-consuming task. In all events, Valverde’s accounts of his experiences made a great impression on his hosts, and on one of them in particular. This was a monk named Francisco de Vitoria, who up until then had taken little or no interest in New World affairs. He was a theologian, chiefly distinguished as a leading figure in the sixteenth-century revival of the philosophy of that earlier Dominican, Thomas Aquinas. Vitoria hailed from a prominent family in Burgos. He studied in Paris in the early years of the sixteenth century, especially the works of Aquinas, and then returned to Spain to teach theology, first at the College of San Gregorio in Valladolid. He then moved to the University of Salamanca, where he held the prime chair in theology and expounded the

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works of Aquinas. He had connections in prominent humanist circles, being a personal friend of the noted Spanish humanist Luis de Vives and a defender of the famous scholar and polemicist Erasmus of Rotterdam from attacks by conservatives. Vitoria was very impressed by the stories related by Valverde—though not in the manner intended. He was shocked by what he heard, and the more that he learned about the conduct of the Spanish in the New World, the more horrified he became. Later in 1534, he wrote in a private letter that “no business shocks me or embarrasses me more than the corrupt profits and affairs of the Indies. Their very mention freezes the blood in my veins.” In 1539, he went public with his concerns, delivering a memorable set of lectures, known as a “relection,” entitled De Indis (On the American Indians). In these, he discussed various issues largely from the standpoint of natural law and just-war doctrine. Vitoria’s conclusions, in some ways, were not so radical. He did accept that, in principle, the Spanish might have had some just cause for war against the Indians. But he doubted whether that amounted to a right of outright conquest and annexation of the Indian realms. Questions of relations with peoples outside the Christian fold were, to be sure, nothing new in the sixteenth century. Europe had never been a closed world. Throughout the Middle Ages, from the seventh century onward, the European states had had to contend with a powerful and advanced civilization armed with a new religion, Islam. If the principles of natural law were truly universal, as claimed, then somehow a place would have to be found within its framework for the role of non-Christian peoples. Islamic society faced the same challenge, since its religion, too, was a universal one. But Muslims and Christians took significantly different approaches to many of the international legal issues of the time. The greatest challenges arose when European explorers encountered societies, in Africa and the New World, with which they had had no prior contact of any kind. Dilemmas confronted by Spain in the Americas were the most conspicuous of these. Not without reason has this era been termed the “Spanish age” of international law. But even if the most prominent actors of the period were Spanish, the many contributions that they made to the development of international law belong to the world at large.

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The Islamic World The Islamic world presented a number of interesting contrasts to its Christian counterpart. Christian society was fragmented into a successor empire to Rome in the east (the Byzantine Empire) and a welter of states in the west, ranging in size from the Holy Roman Empire to the various Italian communes and free cities of transalpine Europe. The Islamic world, at least for an impressive period of time, was a unity (if only a somewhat loose one) comparable to the empire of ancient Rome. There were also some similarities between the two societies. Both religious faiths were strongly universalist in outlook, each seeking ultimately to bring the entire world within its fold. And in both cases, it was abundantly clear that this ambition was very far from actual achievement. However impressive the Islamic conquests of the seventh and eighth Centuries, they fell far short of encompassing the entire world. It has been observed that, in the case of Christian Europe, an alternative universalist vision was offered by natural-law doctrine. On this point, the Islamic world offered a very striking contrast. Natural law was one notable element of the Greek and Roman classical heritage that did not have a great impact on Muslim thought. Where the natural-law tradition insisted on an ultimate and fundamental unity of the entire human race, the Islamic faith held there to be a deep moral chasm between believers and infidels. In order to be truly moral, in Muslim eyes, it was necessary to be a Muslim and, by extension, to know and live by the Muslim law, the sharia. It is true that the Muslim faith did not countenance active mistreatment of infidels merely on the basis of nonbelief. On the contrary, “people of the Book” (meaning Jews and Christians plus, in practice, Zoroastrians) were to be tolerated. But this was a toleration liberally flavored by condescension. Infidels were regarded as moral inferiors and were subject to various disabilities, such as special taxation.

Houses of War and Peace The Islamic ideal was that the Muslim world should comprise a single community of believers, united in a single polity and governed by sharia, the Islamic religious law. Within that world, there could be, in principle, no such thing as international law. Relations with the infidel world were, how-

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ever, a different matter. The Quran, the sacred book of the Islamic faith, did not itself offer much guidance. But a body of law known as siyar gradually grew up to deal with such issues. (Siyar is the plural of the Arabic word sirah, which simply means conduct or behavior.) We must beware of thinking of the Islamic siyar in terms of our modern conception of international law because it was seen as a law exclusively for Muslims, not for infidels. It was a body of rules that instructed Muslim rulers on how they were to behave toward nonbelievers. In modern parlance, it would be characterized as the Muslim law of foreign relations, rather than as international law per se. Since siyar was seen as part of Islamic law, it followed that it must, in principle at least, flow from the same sources as Muslim law generally. In practice, however, that was not really the case, since the traditional sources of Islamic law had too little to offer in the way of substantive rules of conduct. Siyar was therefore, to a large extent, separate from other branches of Muslim law, being derived largely from custom and from reason rather than from the prescriptions of the Quran or practices of the Prophet Muhammad (which were, and still are, the two principal sources of Islamic law). The earliest writing on siyar was in the middle of the eighth century, by Abd al-Rahman al-Awza’i, who lived in Syria but of whom otherwise nothing is known. He wrote a book—apparently the first ever—on the subject of the laws of war. Although it has not survived as written, its substance is known. It dealt with a number of discrete, specific topics of a practical nature, with the greatest attention given to the treatment of enemies and the division of the spoils of battle. The first exposition of siyar as a whole, however, appears to have been accorded by the Hanafite school of Muslim jurisprudence, which grew up in Iraq in the late eighth and early ninth centuries. One of the leading early figures of this school, a certain Abu Yusuf, wrote a Book on Taxation (Kitab al-Kharaj) , which contained a treatment of legal rules on foreign relations between states. It is said that the book was written at the request of Caliph Haroun al-Rashid. Much more significant was a work written a few years later, just after the turn of the ninth century, by Abu Allah Muhammad ibn al-Hasan ibn Farqad al-Shaybani—usually known simply as Sheikh al-Shaybani. A native of Iraq, he studied law under Abu Hanifa (the nominal founder of the Hanafite School) himself, continuing his studies, after Abu Hanifa’s death, under Abu Yusuf. He appears also to have studied for a time under al-Awza’i. In

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the course of his career, spent mostly in Iraq, he became one of the foremost figures of the Hanafite school and also did judicial service—from which, however, he was dismissed by Haroun al-Rashid for tendering some unwelcome legal advice. (A reconciliation later took place). Al-Shaybani wrote two works on siyar, but his surviving writing on the subject is a portion of a larger work on Islamic law. It covered such topics as peace treaties and safeconducts, territorial jurisdiction, diplomatic relations, the conduct of war, neutrality, and civil strife. On the subjects of war and treaty making, the position of Islamic states differed significantly from that of their Christian counterparts. It has been observed that European just-war doctrine had scarcely anything to do with religion. A just war was basically a form of legal process—a means of compelling wrongdoers to accord due recognition to the legal rights of the just side. As such, it was a carefully limited and circumscribed action, fought for the obtaining of some defined thing (or res) that was being wrongfully withheld or denied. This meant, in turn, that just-war doctrine was as readily applicable to relations with infidel powers as with Christian ones. Moreover, Christians, from Augustine onward, were emphatic that peace was the normal or residual condition of life, and war the exception. The Islamic conception of war was radically different. Here, the dividing line between the faiths was seen as fundamental and (nearly) unbridgeable. Muslims were characterized in the Quran, the sacred book of the faith, as being “harsh towards the disbelievers and compassionate towards each other.” With the infidel world, in short, there was, in principle, a perpetual state of war. The Quran warned Muslims that nonbelievers were their “sworn enemies,” and it cautioned Muslims against taking Christians and Jews as allies. This attitude was reflected in the label given to the non-Muslim world in general (though not by the Quran itself)—the Dar al-Harb, or “house of war.” Contrasted to the Dar al-Harb was the Dar al-Islam, the realm of the true faith. In principle, there could be no permanent peace treaty between the two “houses.” More generally, it may be said that this sharply dualistic conception left no conceptual space for an elaborate system, of the European kind, for assessing rightful and wrongful resorts to force. In an important sense, then, all Muslim wars against infidel powers— offensive and defensive alike—were regarded as, per se, just, provided that an invitation to convert was given prior to the launching of hostilities. The

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reason was that it was regarded, in the Islamic religion, as a praiseworthy thing to bring as much of the world as possible under Muslim rule. At least in theory, this did not amount to a license for aggression for its own sake. Instead, conquest was seen as a means to certain overriding noble ends. One of these was to provide full protection to any Muslims who might be living under infidel rule. In addition, nonbelievers in the acquired area could be provided with a continuous demonstration of the superiority of the Islamic faith and social system, thereby (presumably) giving them a high incentive to convert. It was clearly established in Muslim law that conversion could not be compelled. But that did not mean that the example of the faith in action could not be placed before unbelievers by means of armed conquest. It will be seen that this argument came to be advanced in Christian circles too. Related to the idea of intrinsic hostility between Muslim and infidel states was the concept of jihad. Although often thought of as meaning holy war, the actual meaning of the word is “striving.” The duty of jihad in its generic sense is therefore the duty of believers to exert themselves to the utmost to promote the faith. This can be done in a vast variety of ways. There is a “jihad of the tongue,” which means putting the art of eloquence to work in ser vice of the faith, or a “jihad of the pen,” which means writing in support of the faith. There is also, of course, a “jihad of the sword,” which is the use of military prowess in support of the true religion. It should be stressed, though, that jihad, at least in its inception, was to be seen in positive terms, as a duty to advance the faith, rather than in negative terms, as hostility or aggression against infidels. Any inclination to regard this “jihad of the sword” as analogous to the medieval European doctrine of the just war must be rejected. The European just war was a remedy against legal wrongdoing, without regard to the faith of the miscreant. Jihad, in contrast, was a means for the promotion of the Muslim faith in general. It was therefore, by its nature, directed primarily against unbelief and, as such, applicable chiefly to relations with infidels (although it could also be employed against internal threats, such as apostasy).

Some Practical Adjustments It has been observed that, in Europe, a rich body of state practice arose in international legal affairs to deal with practical problems for which natural

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law had no ready answers. Much the same thing occurred in the Islamic world, as various pragmatic measures were devised to temper the severity of the doctrine of unremitting hostility between the Dar al-Islam and the Dar al-Harb. It would appear that ordinary diplomatic relations with infidel states posed no great problem. In 765, King Pepin of France dispatched a mission to Baghdad and received a return embassy three years later. In 797, Charlemagne sent another mission to Baghdad. It returned with some handsome gifts, if nothing else—including a white elephant. There were even (if very rarely) personal meetings between rulers of different faiths. In 1162, Byzantine Emperor Manuel Comnenos hosted the Turkish sultan of Iconium (modern-day Konya) in his palace in Constantinople, resulting in the conclusion of a friendship treaty. Of rather more interest for present purposes was the development of various legal devices that had the effect of mitigating at least some of the effects of the basic doctrine of permanent war against infidel states. Three such legal devices proved to be especially useful. One was the substitution of truces for peace treaties. That truces of ten years’ duration were permissible was indicated by an incident in Muhammad’s career. At one point, he concluded a truce of that duration with enemies, with divine approval clearly indicated in the Quran. In addition, there was no clear bar to the conclusion of a fresh truce immediately upon the expiry of an old one, with the result that, in practice if not in theory, peaceful relations with infidel states could be stretched out indefinitely. This state of affairs even came to be honored with the designation of Dar al-Sulh (or “house of truce”), to indicate a middle status between war and peace. This innovation was, however, controversial. It was particularly the product of the Shafi’i school of Muslim jurisprudence but was rejected by the Hanafites, who continued to deny the existence of a middle category. It may be noted, though, that truces were regarded as terminable at any time at the will of the Muslim party, so long as due notice was given first. A second legal device for enabling peaceful relations to take place between Muslim and infidel states was for an infidel country to be tributary to an Islamic one. So long as the nonbelieving state was treated as being on a legal or moral level inferior to the Muslim one, there need not be ongoing war. Th is arrangement was sometimes known as Dar al-Ahd (or “house of covenant”). Muslims could even, like the Chinese, take a broad view of “tribute”

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by deeming ordinary, customary gift s by diplomatic missions to be tribute. The third principal device for mitigating the inconvenience of perpetual enmity with infidels was the granting of safe-conducts. This was a significantly more flexible arrangement than the conclusion of truces or tributary relations, since a safe-conduct (aman in Arabic) could be issued by any adult Muslim. Rulers could go further and issue them collectively to foreign states as a whole. It was through this device that extensive commercial ties with various European Christian states were established in the course of the Middle Ages. Some additional adjustments to strict doctrine became necessary when political fragmentation occurred within the Islamic world. These began in the middle of the eighth century, when the Muslim rulers of Spain withdrew their allegiance to the Abbasid caliphs of Baghdad. By 800, the Abbasids no longer ruled effectively anywhere in North Africa beyond Egypt. The way was now open for armed conflict between Muslim states. These were regarded in Islamic law as acts of rebellion against the legitimate successors of Muhammad. In practice, however, enemy Muslim rulers were readily held to be entitled to treatment as enemies according to the laws of war rather than as mere criminals. In the course of time, this treatment was extended to insurgent groups within individual Islamic states. The rule came to be that, if the insurgents were organized in the manner of a government, with actual control over a portion of territory, then they would not be regarded as mere bandits or criminals, but instead as a sort of de facto governmental entity. The Muslim legal term for this kind of opponent was bughat, to distinguish him from a mere bandit or highwayman. The key requirement for bughat status was that the insurgents be fighting for some kind of doctrine or cause and not for mere personal advancement. Possession of this status entailed a number of important legal privileges. For example, truces made by rulers with bughat groups had to be honored. Also, persons living in the area that was controlled by the bughat movement would be exempted from their normal taxation obligations to the legitimate government. This meant that citizens could pay their taxes to the bughat overlords, in the confidence that they would not have to pay a second time later, to the legitimate government, when (and if) the insurgency was suppressed. In addition, government acts promulgated

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by the bughat authorities would be recognized as lawful in their area of control. At the conclusion of hostilities, defeated rebels were entitled to have their weapons returned to them. Not until the nineteenth century would the Europeans devise a comparable doctrine, under the label of “recognition of insurgency.” By the late eleventh century, questions about Muslim relations with the Dar al-Harb became less challenging from the legal standpoint, as they became more serious from the military perspective. For it was then that the European states began to go onto the offensive against the Islamic world. It would now be the turn of the Europeans to find some way of justifying expansive, offensive policies. In the absence of a general doctrine comparable to that of the Islamic Dar al-Harb, giving automatic license to war against infidels, the challenge would be a daunting one.

European Expansion in the Crusading Era Medieval Europe was an energetically expansive society. Its outward push was in no fewer than four directions: southeastward, into the Holy Land of the eastern Mediterranean; to the southwest, for the recovery of Spain from the Muslims (the Reconquista, as it was known); to the northeast, spreading Christianity into the Baltic areas; and finally to the northwest, where hardy Scandinavian voyagers settled Iceland, Greenland, and even (if only just briefly) mainland North America. For all of these activities, the hardiness of the pioneer and the bravado of the warrior were greatly in demand. So too, however, were the skills of a more subtle and unobtrusive group of persons: lawyers. One of the challenges facing medieval lawyers was to determine the legal bases for these various external adventures. This was especially problematic for two of the four regions of expansion: the Holy Land and northeastern Europe. An important part of the lawyers’ task was to decide what kind of entitlement to govern was possessed by the preexisting rulers—who in all cases were non-Christians. In dealing with these vital issues, naturallaw doctrine was summoned to assist.

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Pagans as Sovereigns Since natural law applied to all members of the human race (and even to the entire animal kingdom, in Ulpian’s version), there was no doubt that nonChristians were fully entitled to be owners of private property. More problematic was whether they had a right to exercise rulership, particularly over Christian subjects. There was a powerful strain of thought in Western Europe to the effect that pagans could not possess title to lands. This was the opinion of Hostiensis (also known as Henry of Segusio), who taught canon law at the University of Paris during the thirteenth century. In 1253, he contended that, “with the advent of Christ all offices and princely ranks . . . have with just cause been withdrawn from all heathen and transferred to Christians.” Giles of Rome, who was archbishop of Bourges and a follower of Thomas Aquinas, insisted, in this same vein, that a person cannot be “the lord of anything or . . . possess anything with justice unless he is also spiritually regenerated through the Church.” Aquinas himself held a somewhat more moderate stance: that, if sovereignty by an infidel ruler over Christians was “an established fact,” then it could be allowed to continue—but that it was subject to revocation by the church at any time. The reason, he explained, was that “infidels by their infidelity deserve to forfeit power over the faithful.” But this position did not, in the event, win official favor. The decisive contribution to the debate was made in 1243 by Pope Innocent IV (Frederick II’s nemesis). Invoking natural law, he pronounced that “[d]ominions, possessions and jurisdictions are lawful and blameless among the infidels, for these were created not only for the faithful, but for all rational creatures.” Pagan princes even had a lawful right to rule over territories that had been conquered from prior Christian rulers—with the notable exception (as will be seen) of the Holy Land in the Middle East. This natural-law right to political dominion was likened, in its universality, to sunshine, which warmed persons of all faiths and cultures alike. For these views, there could be a case for crowning Innocent IV with the contested title of father of international law. The logical implication of Innocent’s position was immediately apparent. In order for wars against pagans and infidels to be lawful, they would have to be brought within the framework of general just-war doctrine, or else some kind of alternative justification outside that framework would have to

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be devised. That posed something of a challenge. But there was no shortage of lawyers prepared to meet it.

Justifications for Crusading If traditional just-war theory was to be employed to justify crusading, then a persuasive just cause (iusta causa) would have to be identified. One possible theory was repressive rule by the Saracens (in the form of persecution of Christians), which could be argued to justify forfeiture of their right to rule. This was put forward, admittedly not in very dispassionate legal terms, at the outset of the crusading movement to the Holy Land. The famous sermon by Pope Urban II at Clermont in 1095, in one of the versions in which it has been reported (supposedly firsthand), contained an extensive catalogue of atrocities attributed to the Muslims. These included the devastation of the Holy Land with “pillage, fire, and the sword,” the infliction of “cruel tortures” onto Christians, the destruction of churches, and the ruining of altars with “fi lth and defi lement.” In the longer term, however, allegations of misconduct by infidel rulers lost their persuasiveness, and resort was had to two other theories that were devised outside the framework of general just-war theory. One of them, known as recuperatio (“recovery”), was applied to crusading in the Holy Land. The other, known as dilatatio (“expansion” or “widening,” cognate with the English word “dilate”), applied to the northeastern European crusading theater. The recuperatio theory was the more widely accepted of the two, since it had the support of Innocent IV himself. It held that the Holy Land must be seen as something of a special case. It was stated to be, uniquely, a res sancta (“sacred thing”) belonging, in permanent right, to the whole of Christendom. That meant that any infidel rulership over it could never be regarded as legitimate. Consequently, any Christian prince was entitled to reconquer it on behalf of the Christian community generally. Among the writers who supported this doctrine were John of Legnano and Bonet. The dilatatio theory was more controversial. It was essentially a Christian version of the Muslim thesis, identified earlier, that the conquest of foreign lands was justifiable as a means to the effective promotion of the true faith. Conquest of a non-Christian land could be authorized (the theory went) on

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the condition that the conquerors convert their new subjects to the Catholic faith after gaining control. The distinctive feature of this doctrine was the absence of any requirement of prior wrongdoing on the part of the infidel rulers. It should also be noted that, as in Islamic belief, the actual conversion of the population was still required to be voluntary, so that the dilatatio principle did not amount, strictly speaking, to forcible conversion. But it justified the employment of force as an ancillary—and prior—aid to conversion. The dilatatio theory was not invoked in the original proclamation of the northeastern crusade by Pope Eugenius III in 1147. It first emerged in the context of European occupation of the Canary Islands in the fourteenth century. In 1344, Pope Clement VI made a grant of the islands to a certain Luis de La Cerda, a Spanish native who had transferred his allegiance to France. La Cerda’s grant included the enviable title of “Prince of the Fortunate Isles.” He was thereby authorized to conquer and rule the islands but was also instructed to employ his powers to promote conversion of the native population to Christianity. The following year, Clement VI conferred the status of crusade onto La Cerda’s plans for conquest. As it happened, La Cerda never embarked on the conquest of his felicitous principality. But the concept of dilatatio was now launched. In the early fifteenth century, the debate over the validity of the dilatatio principle became an element in a bitter legal dispute between the Teutonic Knights and the government of Poland. The Teutonic Knights were officially entrusted with conducting the northeastern crusade. Beginning in 1147, the knights were authorized by the papacy first to subdue and then to convert, the pagan populations of the region. This right of conquest and jurisdiction did not, however, extend to areas where persons had converted voluntarily to Christianity. That meant that attacks were not to be made against Poland, which had been Catholic since the tenth century. Ill feeling between the Poles and the order began in 1386, when the queen of Poland married the then-pagan duke of Lithuania—with the Lithuanian ruler being baptized into the faith at the same time. The Polish-Lithuanian government then demanded that the knights halt their attacks against Lithuania, on the ground that conversion was now proceeding in a peaceful manner. The knights continued their attacks, however—and accused the Poles of employing infidels against them. In response, the Polish government sought to have the Teutonic Knights disbanded completely. In 1415, the disputatious

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parties presented their rival cases to the Council of Constance—where it became the greatest set-piece international-law drama of the Middle Ages. At the council, the knights were represented at first by Peter Wormditt, who was the proctor of the order’s grand master, and later by a Dominican named John Falkenberg. Also acting for the knights was a canonist named John Urbach. On the knights’ behalf, Urbach contended that there could be no lawful jurisdiction by infidels. Moreover, any unbelievers who violated the laws of nature “may be lawfully corrected by means of the secular arm” acting on behalf of the church. Pagans could lawfully wage war against Christians, he argued, only if they recognized “the supremacy of the Church” and, even then, only “in a case of pure and simple defence.”  Regarding the case at hand, the allegation was that Poland had unlawfully entered into alliance with pagan Lithuania and that the Poles were employing pagan and schismatic troops against the knights. Falkenberg’s advocacy in the knights’ cause was decidedly more vigorous than Urbach’s. Already on record as denying that the Poles were true Christians, he proceeded to denounce the Poles and Lithuanians as “heretics and shameless dogs who have returned to the vomit of their infidelity.”  This tirade was the cause of Falkenberg’s later arrest on charges of scurrilous libel. On the less inflammatory level of legal doctrine, he asserted the principle of dilatatio. The able champion of the Polish side was Paul Vladimiri (or Wlodkowic), a former rector of the University of Cracow and a noted canon lawyer. He leveled a barrage of counterallegations against the knights. One was that they had deceived the popes into granting permission for the order’s attacks on Poland. Vladimiri also maintained that the order’s supposed religious mission was a mere façade for aggression and land grabbing, and that the Lithuanians were being attacked even after giving indications of a willingness to live peacefully. The conversion of the Lithuanians to Christianity, he asserted, was actually being carried out not by the order but by the Poles, and peacefully rather than violently. Against the dilatatio principle specifically, Vladimiri invoked Innocent IV’s position, that pagans exercised lawful sovereignty over their lands. Consequently, war against them could be justified only on the ground of actual misconduct—either a refusal to admit Christian missionaries into the territory or violations of the laws of nature. The Lithuanians, he insisted, were guilty of neither of these offenses.

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The judgment was eventually given by a church commission in 1417. As so often in litigation, it was a disappointment for both sides. The Polish request for the dissolution of the Teutonic Knights was denied. (Vestiges of the order remain in existence to the present day, performing charitable work.) Nor was there an express repudiation of the doctrine of dilatatio. An order of silence was even imposed onto Vladimiri by Pope Martin V. On the whole, though, the Poles had the greater reason to be satisfied with the outcome, since it was ruled that there was to be no crusade against the united kingdom of Poland-Lithuania. This had the important effect of weakening popular support in the region for the knights’ aggressive activities.

Peaceful Ties between the Faiths It should not be thought that relations between Christians and Muslims were uniformly hostile during the Middle Ages. Strong economic ties developed between the faiths—ties that were, in fact, too strong for the liking of some. As early as 969–70, the Byzantine Empire entered into an agreement with the Muslim emir of Aleppo for the free traffic of caravans between Byzantium and the central Asian trading cities. This agreement also provided for limitations on customs duties and guarantees of the security of persons. The various Italian trading cities were not far behind. In the course of time, there came to be substantial colonies of European merchants in the ports of the Byzantine Empire and of the Muslim regions. The first of these were established by merchants from Amalfi in Constantinople and Alexandria in the eleventh century. A statute regulating the affairs of the Venetian colony in Constantinople dates from 1082, although the settlement itself was older than that. Pisa also had a colony in Constantinople by 1111, and in crusader-ruled Acre by 1179, as well as in a place called Subilia (probably in modern-day Tunisia) by 1166. By the early thirteenth century, the European merchant community in Alexandria was some three thousand strong. In 1127, Genoa signed a treaty regulating access to and from Muslim ports in Spain. It also had a Constantinople colony by 1155, as well as one in Bougie in Tunisia by 1164. In 1275, it concluded a commercial treaty with Egypt, enabling it to import slaves into Egypt and to export sugar to the European markets. In 1251, the city of Venice concluded a very detailed commercial

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treaty with Tunis. This was followed by a similar one with Egypt in 1297, providing for protection of commerce and merchants, as well as for visits to the holy sites under escort. The papacy looked upon these burgeoning ties with considerable misgivings, fearing that these trading ties were strengthening the hand of the enemy side in the Crusades. As early as 971, the Byzantine government, similarly concerned, pressured Venice to ban trade in what would now be called strategic goods with the Muslim states. Weapons and timber were in this category, as well as weaponry such as swords, lances, and breastplates. This apparently had only a limited effect. When English Prince Edward (soon to be King Edward I) arrived in crusader-held Acre in 1171, he was appalled to discover Venetian merchants transporting arms and provisions from there to Alexandria. To deal with this concern, the Third Lateran Council, in 1179, adopted a canon prohibiting all trade with Muslims in war materials. A similar ban was promulgated in 1215 by the Fourth Lateran Council. This provided that offenders were to be barred from churches until they had paid full damages for their misdeeds and sent those damages on to the Holy Land. After the fall of Acre to the Egyptians—the last crusader foothold on the Levant mainland—in 1292, the ban was extended to cover all trading with the Muslims. Pope Clement V issued a bull to this effect in 1308. As a penalty, he decreed a loss of all civil rights, such as the right to inherit bequests, and even enslavement. In 1311–12, he authorized the Knights of St. John (the Knights Hospitallers, now known as the Knights of Malta) to capture ships of Christian merchants violating the rules and to sequester their cargoes. In 1326, Pope John XXII decreed that anyone who even contended that it was lawful to sell nonwar materials to Muslims be condemned as a heretic and excommunicated. The bull In coena Domini (“At the table of the Lord”), promulgated by Pope Urban V in 1363, contained a long list of antisocial acts that the faithful were admonished not to commit. These included the supply of arms, ammunition, and war materials to Saracens, Turks, or other enemies of Christendom. Not surprisingly, human ingenuity, in combination with the lust for profits, proved equal to the task of circumventing these apparently absolute and draconian rules. The papacy itself gradually entered the business of making exceptions to its own rules. It is a fascinating story that has yet to be recounted in detail. For present purposes, it is only necessary to emphasize a

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key constraint operating on the papacy in its attempts to control trade with Muslim lands: the fact that nonadherence to the Christian religion was simply not, per se, a violation of natural law. Consequently, non-Christians could not be deprived of their natural-law rights on the ground of their status as nonbelievers. It was not too difficult to accept this principle in the case of Muslims, whose civilization was highly developed—in many ways more advanced than that of the European Christians. The universalist outlook of natural law would, however, be subjected to a much greater challenge when Europeans made contact with other, more exotic cultures. The northeastern crusade had provided some telling indications of problems that could arise. But even more serious challenges lay ahead.

Finding New Lands Abroad By the end of the Middle Ages, European expansion was going further afield than ever before, with the Atlantic seaboard kingdoms of Spain and Portugal taking the lead. As early as the fourteenth century, there was exploration of the west coast of Africa, leading to the discovery of the Canary Islands. The following century, Portuguese mariners ventured much further down the African coast. Over a period of some forty years (1419– 60), about thirtyfive expeditions sailed from Portugal (although only eight of them were initiated by the famous Prince Henry the Navigator). Portugal even founded settlements on islands far out in the Atlantic (Madeira in 1425 and in the Azores in 1427). Contacts with African societies were not always peaceful. There were attacks, for example, by Portuguese knights against unarmed fishermen on the coast of Mauritania, as a result of which Prince Henry forbade the use of force except in self-defense. Somewhat later, Spain, too, became active in exploration. In 1492, the Italian mariner Christopher Columbus, sailing for Spain with the grand title of Admiral of the Ocean Sea, made a landing in the West Indies and established a settlement on the island of Hispaniola. Shortly after this, colonists arrived on other West Indian islands. More spectacular by far were the conquests of the two great Indian empires of the American mainland, those of the Aztecs (in 1519–22) and the Incas (in 1533).

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An immediate and obvious problem regarding all these new lands—new, that is, to Europeans—was to determine who had ownership of them and on what basis. The difficulties involved became apparent as early as the fourteenth century, when Spain and Portugal advanced rival claims to title to the Canary Islands. It has been observed that these had been (purportedly) granted by Pope Clement VI to Luis de La Cerda in 1344, but with no practical result. Effective European control over the islands was only achieved early in the fifteenth century, when two French noblemen established a settlement—and also obtained the surrender and conversion to Christianity of the native king of Lanzarote. This time, lordship of the islands was obtained, by way of a feudal act of homage, from the king of Castile instead of from the papacy. The Portuguese government, however, contested the validity of this purported grant by Spain. The result was a scholarly contest between advocates for the two sides—the first major example of a detailed legal dispute over title to territory. In support of its cause, the Portuguese government enlisted two Italian professors of law: Antonio de Rosellis (who taught canon law at the University of Padua) and Antonio Minucci da Pratovecchio (who taught civil law and canon law at the Universities of Florence, Padua, and Bologna). Their principal contention was that the native Canarians had obstinately refused to allow missionaries to preach the Christian faith and that Portugal had taken it upon itself to wage a just war against them for this offense. To counter these claims, the Spanish government enlisted an equally distinguished figure: an ecclesiastic named Alfonso (or Alonso) de Cartagena. From a family of converts from Judaism, Alfonso studied civil and canon law at the University of Salamanca and later served in various church positions. He was also an active diplomat and translator of classical texts. In 1437, he published his Allegationes . . . super conquista insularum Canariae (Allegations about the Conquest of the Canary Islands). His principal contention was that the islands had formed part of the old Visigothic kingdom—or, alternately, that the Visigothic kings had possessed at least a right of conquest—and that the present Castilian monarchs were the successors to those prior rights. The dispute, fortunately, was eventually settled by the parties (as will be seen), but the affair provided a telling fi rst glimpse of legal problems that could so easily arise in exploration

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activities where there was so little precedent. In this regard, much more was to come.

Dividing the World The popes took an interest in these endeavors, especially those along the west coast of Africa. They even claimed the right to grant out these territories—an assertion supported by Bartolus of Sassoferrato. His Treatise on Islands contended that the popes had jurisdiction over all islands not adjacent to determined countries. Clement VI’s exercise of this right, regarding the Canary Islands, occurred during Bartolus’s lifetime. Papal involvement in the exploration process continued in the following century. In 1452, Pope Nicholas V, in the bull Dum Diversas (“Until Different”), authorized Portugal to subjugate infidels, conquer their kingdoms, and reduce them to slavery. Three years later, in 1455, Nicholas V followed this up with another bull, Romanus Pontifex (“Roman Priest”). This granted to Portugal “the right of conquest” of a somewhat vaguely defined portion of Africa extending through “all Guinea and beyond toward that southern shore.” The king of Portugal was given the right “to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed . . . and to reduce their persons to perpetual slavery.” He was also authorized to legislate and to levy taxes in the area. Trade with Saracens was permitted except in materials useful for war. Penalties for infringement of this grant were specified: excommunication for individuals, interdict for communities. The following year, Pope Callixtus III, in a bull entitled Inter Caetera (“Among Other [Works]”), reaffirmed Nicholas V’s grant and supplemented it by giving sole ecclesiastical jurisdiction over the area to the Order of Jesus Christ (a military order, of which Prince Henry was governor). Rivalry between Spain and Portugal continued. Sometimes, it proved possible to resolve, or at least alleviate, it by means of bilateral agreements. A notable example was the Treaty of Aloaçoves in 1479. Portugal finally dropped its claim to the Canary Islands in favor of Spain, with Spain in return conceding Portugal’s title to Guinea, as well to the Cape Verde Islands, Madeira, and the Azores. The treaty was approved two years later by Pope Sixtus IV.

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That the Portuguese government was sternly watchful of its rights under this treaty was forcefully demonstrated to Christopher Columbus during his first voyage to the New World. En route back to Spain, he put into the Azores under pressure of weather, only to be promptly arrested by the Portuguese governor of the islands for suspected illegal trading with Africa in violation of the treaty. He was allowed to continue his voyage only after these suspicions were allayed. With Columbus’s discoveries in the New World, the rivalry between the two exploring nations became more heated than ever. The papacy then entered the picture again. In 1493, the very year after Columbus’s arrival in the West Indies, Pope Alexander VI (originally from Spain, as it happened) issued two bulls, dated to two successive days and both entitled, rather confusingly, Inter Caetera. The more important of these measures was the later Inter Caetera bull, dated May 4, 1493 (though actually drafted some months later than that and backdated). Superseding all previous pronouncements, it drew a north-south demarcation line, located one hundred leagues west of the Azores and Cape Verde Islands. Newly discovered lands west of the line were given to Spain, and east of it to Portugal. The two countries were granted trade monopolies in their respective zones—with interlopers automatically excommunicated. In return for these privileges, the two countries were to take on the task of converting the native populations to the Catholic faith. The trade monopolies were designed to cover the cost of the conversion efforts. The Portuguese government was displeased at this arrangement. It preferred an east-west dividing line to a north-south one, and it was resentful at the loss of its previous claims. Rather than resorting to the pope, it entered into direct negotiations with Spain, resulting in the Treaty of Tordesillas in July 1494. The principle of a north-south division was retained, but Portugal was placated by a westward shift of the dividing line, which was now placed 370 leagues west of the Azores and the Cape Verdes. Differences soon surfaced over just what the length of a league was. A supplementary treaty was concluded the following year to deal with this difficulty (in Portugal’s favor). Still outstanding, though, was the problem of allocation of zones in the Eastern Hemisphere. This was eventually resolved, in 1529, by another bilateral agreement, the Treaty of Saragossa. Its effect was to allocate the East Indies to Portugal and the Philippines to Spain.

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Once the geographical issues were more or less resolved, it became apparent that the zones allocated to the two countries were very different. Portugal had one large land mass, Brazil, that was suitable for European settlement, but otherwise, its zone comprised areas of Africa that were chiefly employed as sources of slaves for New World plantations and mines, plus the Indian Ocean region, where an elaborate trading system long predated the Portuguese arrival. Portugal’s chief task was therefore to make its trading monopoly in the Indian Ocean region effective against would-be European interlopers. Spain’s zone, in contrast, comprised the huge land mass of the Americas (apart from Brazil). Important questions arose, though, as to the true legal nature of its title to those lands.

Spanish Sovereignty over New Lands There was not much in the way of firm legal doctrine or precedent for the acquisition of sovereignty over newly discovered lands. The Roman-law heritage was, potentially, of some assistance, since it contained detailed rules on the acquisition of title to property. These consisted of “derivative” modes (acquisition from a prior owner by purchase or gift) and “natural” modes (acquisition of title to something not previously owned by anyone). But there were many difficulties. For one thing, there was uncertainty as to whether these rules applied to the acquisition of land territory or political sovereignty by states, as opposed to acquisition of movable goods by private individuals. In the absence of a clear and agreed set of rules, a certain amount of improvisation was called for. When Columbus made his various landings in the Caribbean area, he would typically plant flags on the land. Rather more theatrical was the action of the Spanish explorer Vasco Nuñez de Balboa. Upon arrival at the Pacific coast of the Isthmus of Panama in 1513, he waded into the water breast-deep, in full armor with drawn sword, brandishing the banner of Castile—purporting, by this gesture, to claim the whole of the ocean, together with the lands on its shores, for his monarch. But there were grave doubts as to the actual legal effects of these ceremonies. One of the more remarkable facts of history is how serious the concern was over the legal niceties of New World empire building. One historian has referred to “[t]he juridical passion of the Castilian monarchs and their advisers,” which entailed “an obsessive desire to justify in theory . . . all their

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doings and especially all their wars.” To appreciate the context in which the various debates took place, it should be noted that the Spanish conquest of the New World took place gradually, in stages. Individual expeditions of conquest required prior approval, or licensing, by the Spanish crown. The immediate concern of the government, therefore, was over the criteria that governed the issuing of these licenses. On this question and others connected with New World affairs, the advice of scholarly experts was assiduously sought. This was done by way of consultations known as juntas (meaning “council” or “committee”), the first of which took place in 1503. In the course of time, a number of different theories were canvassed over Spain’s entitlement to acquire sovereignty over its New World possessions. A brief survey of each of them will provide a highly instructive light on international legal mentalities of the period, as applied directly to issues of the highest importance. It will also reveal the strengths, weaknesses, and logical consequences of the various competing legal doctrines.

Papal Grants A first possible basis of Spanish legal title was the various papal grants discussed previously. The thesis was that the pope, as the ultimate sovereign of the entire world, could allocate absolute ownership of territories, in the manner of a landowner distributing his land to other persons. On this theory, Spain would be regarded as the full sovereign of the areas allocated to it. More specifically, it meant that the Spanish were already the lawful rulers of the allocated territories even before the material conquests were effectuated. The conquests on the ground must therefore be regarded merely as the acts by which possession of the territories was effectively secured. The attraction of such a thesis to the Spanish crown is easily seen. The papal-grant theory received strong support at a junta held at the Dominican monastery of San Pablo in Valladolid in 1513. The occasion was the dispatching of an expedition to Panama, under the command of Pedro Arias de Ávila (often known as Pedrarias Dávila), to relieve Balboa of his command. King Ferdinand of Spain ordered its departure to be delayed, pending a consideration of the question of just wars against the natives by a committee of theologians. Two of the more noteworthy participants at this session were Matías de Paz and Juan López de Palacios Rubios. Paz was a

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Dominican friar and professor of theology at the University of Salamanca. Palacios Rubios was a distinguished lawyer and member of the Council of Castile. Paz set out this thesis in an exposition entitled De Domino Regum Hispaniae super Indios (On the Dominion of the Spanish King over the Indies). This was noteworthy in relying on the papal grants as the sole basis of legal title of the Spanish monarchs. The views of Palacios Rubios were expounded in a work entitled De Insulis Oceanus (On the Islands of the Ocean Sea). He contended that, even granting the position of Innocent IV that pagan princes possessed lawful sovereignty, that sovereignty could be revoked from them by the pope and transferred to other rulers (i.e., the Spanish crown). Neither of these works, however, was published at the time. Palacios Rubios did not shrink from the full logical consequences of his thesis. It meant that the Spanish crown had sovereignty over the New World territories even prior to the conquests on the ground. The task of the Spanish in the New World was therefore to inform the natives that they now had a new sovereign in the hope that they would quietly accept the new state of affairs. If they proved uncooperative on this point, then they could be lawfully subdued by force—as rebels against their lawful sovereign, not as subjects of an independent foreign prince. To facilitate this process of taking control of territories already granted, Palacios Rubios outlined a procedure that became known as the requerimiento. It appears to have been modeled on prior Islamic practices, which the Spanish became aware of during their reconquista of the Iberian peninsula. In essence, the “requirement” was a summons or ultimatum that was read out to the population of the area that the Spanish were intending to conquer. It informed the people that the Spanish were now their lawful sovereigns and called upon them to accept this state of affairs. As such, it has been derided by one modern historian as “surely the crassest example of legalism in modern European history” and by another, scarcely more gently, as “a strange blend of ritual, cynicism, legal fiction, and perverse idealism.” The text of the requerimiento began with a (necessarily brief) recitation of the history of the world. This included the key information that the pope had been made “lord and superior to all the men in the world” by God and that he had allocated the lands of the Indians to the monarchs of Castile. The hearers were invited to inspect the documents proving this, if they so

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wished. They were then called upon to “acknowledge the Church as the ruler and superior of the whole world” and the Spanish monarchs as their “lords and kings” and to permit Christian clerics to preach the faith. They were expressly assured that they would not be compelled to convert to Christianity against their own wishes. But they were required to acknowledge their political subjection to their new sovereign. If they refused (the Indians were told), the Spanish would “forcefully enter into your country and . . . make war against you . . . and . . . subject you to the yoke and obedience of the Church” and of the Spanish monarchs. Slavery and confiscation of property would follow. A notary was to be present to record in writing that the requerimiento had been duly issued. The first recorded employment of the requerimiento in the field was in 1514 on the Caribbean coast of what is now Colombia. It appears to have been taken fairly lightheartedly by the Spaniards on that occasion, with stories of its being read out to trees and empty huts or intoned from the decks of ships as they approached Indian territories. But there was no significant contemporary opposition to it. It was dutifully employed by Hernán Cortés in his famous conquest of Mexico in 1519–22. It may have been read out to the Incans in 1532 in Cajamarca, by Pizarro’s chaplain Valverde—who was later to sojourn at San Esteban—although there was doubt on the point. The requerimiento continued to be employed until the 1540s. Its last use appears to have been in a campaign against Chichimec Indians in Mexico in 1542. It was read out on that occasion by a friar who stood prudently out of arrowshot range of the Indians—but probably beyond the range of audibility, too. From a legal standpoint, the requerimiento was far from airtight. To be effective, it would have to be heard and understood by the native populations. Making the requerimiento audible over a significant distance would have presented a challenge. Comprehension of it would have posed an even greater difficulty, since there is no evidence of the requerimiento’s ever having been translated into any of the native American languages. Unless a translator was ready to hand on the Indian side, the requerimiento could only have been so much incomprehensible gibberish. In recognition of this problem, a Spanish ordinance of 1526, promulgated by the Council of the Indies (the governing body for the Spanish colonies in the New World), required its proclamation in the native languages by interpreters.

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More fundamental than the problems with the requerimiento were the doubts were voiced, even from within the fold of the Catholic Church itself, over the ability of the popes to confer sovereignty over territories onto secular rulers. One of the doubters was a young scholar named Domingo de Soto, who was working as a teaching assistant to Vitoria at the University of Salamanca—and who would later be his successor in the theology chair there. In a section of his relection De Dominio (On Dominion), in 1534–35, he held that the popes had no power to confer sovereign rights onto the Spanish and Portuguese monarchs. Soto’s master, Vitoria, voiced the same conclusion in his De Indis relection of 1539. The pope, he argued, was not the lord of the whole world. He could confer no sovereign powers onto kings and princes “because no one can give what he does not have.” He could therefore allocate spheres of missionary activity to Spain and Portugal but could not grant sovereignty. Despite these misgivings, the Spanish and Portuguese governments, together with their legal servants, continued throughout the sixteenth and seventeenth centuries to assert that the papal grants did confer actual sovereignty onto their recipients. The most prominent advocate of this thesis— who has been described as “the chief jurist of the [Spanish] empire”—was the Spanish cleric Juan de Solórzano y Pereira. A native of Madrid, he spent twelve years at the University of Salamanca—that veritable hub of New World studies—and then became a professor immediately upon graduation. But the major part of his career was spent in royal ser vice, which included an eighteen-year stint as a judge in the audiencia of Lima (in 1609–27). Upon his return to Spain, he served on the Council of the Indies. His massive study of colonial law, De Indiarum Jure (The Law of the Indies), written in 1629–39, served as the de facto official statement of the Spanish government position on colonial issues. In this work, he insisted firmly on the validity of the papal donation as the basis of Spain’s title.

Acquiring Title by Just War An alternative basis of title to the New World territories was acquisition by means of a just war. The Spanish government began to incline in this direction as it reduced its reliance on the requerimiento. A decisive step was the promulgation of a set of ordinances in 1526. These stipulated that all licensed

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expeditions of conquest must be accompanied by two clerics, and that their prior written consent was a prerequisite to the employment of armed force. If war was waged contrary to this policy, then the expedition contract was to be revoked. Remarkably, the constraints imposed by the Spanish government sometimes did have effects on the actual conduct of the conquerors. When the audiencia of Guatemala insisted on adherence to these laws, the would-be conquistador Juan Pérez de Cabrera abandoned his conquest campaign rather than submit. For the justification of the use of force against the Indian realms, general just-war doctrine had a crucial attraction: that it was well established and widely accepted. It had two important drawbacks, though. First was the obvious problem of determining whether the criteria for just wars were actually met in the cases at hand—that is, whether there really was a iusta causa of the kind required. Second was the question of whether even a just war could entail a right of outright conquest. The weakness of the Spanish case on both of these counts was exposed by Vitoria in his two famous relections of 1539. Vitoria devoted the bulk of his attention to the question of iusta causa. A thorough analysis of this issue was his most distinctive contribution to the debates over the Americas. He began by endorsing the standard canon-law position (going back to Innocent IV) that, prior to the Spaniards’ arrival, the Indians possessed lawful dominion over their lands. He then carefully considered a list of seven possible justifications for war against the Indians, finding all of them unpersuasive after close argument. Among these “unjust titles” (as he called them) were the punishment of violations of natural law, the claiming of title by right of discovery, and purported grants of sovereignty by an emperor or pope. These were regarded as altogether invalid in principle as justifications for war. Without mentioning the requerimiento explicitly, Vitoria included among his unjust titles a failure on the natives’ part to convert to Christianity upon hearing “a simple announcement” of the faith. Only if the Indians refused to convert in the face of “miraculous signs or other reasons for belief” could compulsion be used—that is, if they positively repudiated the Christian faith rather than merely passively declined to join it. Vitoria added darkly that he had received no information of any such signs. “On

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the contrary, I hear only of provocations, savage crimes, and multitudes of unholy acts.” Vitoria then proceeded to identify eight bases on which, at least in principle, conquest of the Indians could be justified. These included possible violations by the Indians of various rights of the Spanish, such as a right of “natural partnership and communication.” War could also be justified for the purpose of spreading information about the Christian faith, protecting converts, and defending innocent persons against tyrannical rulers. Mental incapacity on the part of foreign peoples could also justify their conquest. Vitoria carefully held back, however, from pronouncing on whether any of these justifications had actually been present at the time of the conquests. The nearest that he came was in his endorsement of the lawfulness of assisting allies who were fighting a just war. He cautiously noted that “[t]his is what is said to have happened” during Cortés’s campaign in Mexico, when the Spanish allied themselves with an Indian state that was fighting against the Aztecs. Even the existence of a iusta causa did not necessarily entitle the just side to embark upon a war of conquest. Just-war principles, Vitoria insisted (in another of his relections), must apply to pagans as they did to Christians— and those principles allowed the just side to go no further than the correction of the wrongful conduct that had justified the war. They did not confer a right onto the just side to depose the unjust prince and annex his state. Vitoria made it clear that he looked with equanimity on the Spanish giving up their conquests. No great prejudice would occur, he maintained, since trade relations with the Indian states could still continue. But he also concluded, in his parting words, that “once a large number of barbarians have been converted, it would be neither expedient nor lawful . . . to abandon altogether the administration of those territories.”

The Natural-Slavery Thesis It will be recalled that, in classical times, even writers as enlightened as Aristotle held that barbarians were the natural inferiors of Greeks and, as such, fit chiefly for slavery to them. In the age of the Renaissance, which was strongly marked (or even defined) by a high respect for classical antiquity,

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this argument found a number of ready supporters, even though it was contrary to natural-law doctrine, which allowed slavery only as a punishment for crime. (The ius gentium allowed it, in addition, for prisoners of war.) As early as 1503, at the very first of the Spanish government-organized juntas, the applicability of this thesis to the Americas was debated. Participating in the discussion were theologians and canon lawyers, as well as royal councillors. Their conclusion was that, according to human and divine law, the Indians should serve the Spaniards. The most prominent intellectual champion of this theory was a Scottish writer named John Mair (or Major). Mair was based chiefly in Paris, where he moved in the humanist circles of Erasmus and Rabelais and became a teacher of theology. He later returned to Scotland to serve as principal of the University of Glasgow, also writing a history of Britain and then serving as provost of St. Salvator’s College in the University of St. Andrews. In 1519, during his time in Paris, he wrote a work on the Sentences of Peter Lombard (the prominent twelft h-century theologian), which contained what has been called “the first extended theoretical treatment of Spain’s actions in America.” In his exposition, Mair expressly invoked the views of Aristotle concerning the natural fitness of certain persons for servitude. The peoples of the New World, he confidently asserted (without having traveled there or met any of them), “live like beasts, wherefore the first person to conquer them, justly rules over them because they are by nature slaves.” In 1521, a government-organized junta supported Mair’s position for the enslavement of the New World Indians. There were, however, many misgivings about enslavement of the Indians. Palacios Rubios (the legal mastermind behind the requerimiento), for example, agreed with Aristotle and Mair that the Indians were incapable of selfgovernment. But he also insisted that the Indians could not be enslaved if they dutifully accepted their status as Spanish subjects. The fatal blow to the natural-slavery thesis was delivered by the Vatican. In 1537, Pope Paul III issued a bull entitled Sublimis Deus (“The Sublime God”). It expressly rejected the contention that Indians should be treated as “dumb brutes created for our ser vice,” denouncing that proposition as a canard put about by Satan. The true position, the pope declared, is that “the Indians are truly men and that they are not only capable of understanding the Catholic faith but, according to our information, they desire exceedingly

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to receive it.” Even those Indians who remained outside the faith “are by no means to be deprived of their liberty or the possession of their property; nor should they be in any way enslaved.” This ruling was echoed in the New Laws that were promulgated by the Spanish crown in 1542, barring enslavement of Indians on any ground whatsoever. A more moderate version of this thesis held that the Indians were incapable of self-government and that consequently, as an act of charity, the Spanish were entitled to take them under their care—that is, to extend their political sovereignty over them. Vitoria conceded the force of this argument in principle, although he stopped short of holding that the American Indians actually were in such a state of disability. Solórzano, however, writing in the seventeenth century, did take a stand on this question—and concluded unambiguously, in a detailed analysis, that the Indians were fully human and rational, so that the argument based on their incapacity for self-government was invalid.

The Dilatatio Principle—and a Great Debate It has been observed that there was significant support for the thesis that the papal awards of the fifteenth century had merely been allocations of spheres of missionary activity and not grants of sovereignty over territory. That did not rule out the possibility, however, that the one might lead to the other. Moreover, there was a readily available legal doctrine tailor-made to accomplish just that intellectual jump: the principle of dilatatio, which was now applied to the New World rather than to northeastern Europe. In the reopened debate over dilatatio, the doctrine was justified on the basis of a more fundamental general principle of law: that, if jurisdiction is granted or a duty imposed, then the party affected must be understood to possess everything necessary to exercise the jurisdiction or perform the duty. On this thesis, the Spanish rulers could be entitled to acquire sovereignty over the Indian kingdoms as an adjunct to, or instrument of, the conversion process. This argument is interesting because it effectively conceded that the pope did not directly grant sovereignty to Spain. Instead, he granted the right to acquire sovereignty by means of forcible self-help, if that was necessary to effectuate the task of conversion. With this argument, Vitoria had considerable sympathy, listing it among the potentially valid bases of Spanish title in his 1539 relection. He conceded

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that the pope “has power in temporal things insofar as they concern spiritual things.” It was also within the pope’s discretion to entrust evangelization programs to single states exclusively—and that this can even include a monopoly on trading rights “if this is convenient for the spreading of the Christian religion.” He went on to hold that monopoly trading rights in the allocated areas were necessary for the orderly progress of missionary activity and therefore were legally valid. Moreover, popes had the power to “distribute” the territories of Saracens to Christian princes “for the preservation of peace and the progress of religion.” That meant that popes had the power to “make new princes for the furtherance of religion . . . in places where there had never before been any Christian princes.” At the same time, though, Vitoria introduced an important cautionary note. If the Indians, of their own free will, allowed missionaries to come among them and preach, then there would be no need, under the circumstances, for the Spanish to depose their rulers and conquer their kingdoms. Not surprisingly, the king of Spain, Charles I (better known in his capacity as Holy Roman Emperor Charles V), was displeased to find his policies publicly questioned by self-appointed critics. He ordered the prior of San Esteban monastery to stop his charges from debating this sensitive matter. At the same time, though, Charles revealed that doubts were gnawing away even in governmental circles. In 1550, he ordered a suspension of all conquest expeditions and the convening of a special panel of theologians and advisers, to determine the criteria for the lawful waging of wars of conquest. These deliberations took place in Valladolid in 1550–51—and turned into a momentous debate over issues of international law. There were fourteen judges. Vitoria was not one of them, as he had died four years earlier. But his former student and assistant (and future professorial successor) Domingo de Soto was the leading member. Soto had left the academic life in the 1540s for royal ser vice, representing Spain at the Council of Trent and serving as confessor to Charles V. By this time, though, he was back at Salamanca. His fellow panel members were three other prominent ecclesiastics and ten government officials. Of greater prominence than the panel members were the opposing advocates. Arguing against the policy of conquest in the ser vice of conversion was a Dominican bishop named Bartolomé de las Casas. He was the most

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renowned champion of the rights of the native populations of the New World. Originally from a prominent merchant family of Seville, he emigrated with his father to Hispaniola in the West Indies in 1502, during his teens. There, he became a plantation owner, employing local Indians as slave labor and even participating in military expeditions and slave raids against the Indians. But his life’s vocation was to lie in a dramatically different direction. In 1510, he became a priest, the first to be ordained in the New World. The decisive change in his life, though, took place the following year, when he attended an eloquent sermon by a Dominican friar named Antonio de Montesinos, who denounced mistreatment of the native peoples of the Americas by the Spaniards. Las Casas was thereby inspired to enter the Dominican order himself and to make the welfare of the Indian population the great mission of his life. On other side of the debate, and favoring the dilatatio doctrine, was a famous classical scholar named Juan Ginés de Sepúlveda. Originally from Córdoba in southern Spain, Sepúlveda moved to Italy, where he attained great prominence. His skills as a classicist brought him, in 1526, the post of official translator for the papal court, charged with rendering the writings of Aristotle into polished Ciceronian Latin. For centuries to come, his translation of the Politics would be the standard one in Europe. On returning to Spain, he also translated Aristotle’s Nicomachean Ethics. He encountered trouble with the church, however, with the writing of a work called Democrates secundus (subtitled “Just War against Barbarians”) in 1544. In this work, he followed Mair in endorsing the Aristotelian doctrine of natural slavery and asserting its applicability to the native populations of the New World— which, like Mair, he never personally visited. As this position was contrary to official church doctrine, it was swift ly condemned and denied publication by the theology faculties of the Universities of Salamanca and Alcalá, although it circulated widely in manuscript form. It also earned Sepúlveda a gift of two hundred pesos worth of jewels and clothing from grateful readers in Mexico. Following this rejection by the two universities, he wrote to Charles V’s son Philip (the future king of Spain, then serving as regent of Castile) in 1549, demanding a public debate on the subject. The official purpose of the Valladolid conference—it was not actually a legal trial—was to decide on the best method to be employed for the conversion of the Indians. But it was clear that the crucial point of contention between

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Sepúlveda and las Casas was the validity of the dilatatio principle. Las Casas came to the contest more heavily armed, at least in quantitative terms. He presented the panel with a 550-page treatise (Argumentum apologiae), which appears to have been an early version of his major work, In Defense of the Indians. It argued against the Spanish policies and in favor of a strategy of winning natives over to the Christian religion exclusively by peaceful means. On the question of the law applicable to the conquest of pagan peoples, las Casas closely followed Vitoria. Like his predecessor, he conceded the existence of a number of just grounds for war, including forcible occupation of Christian lands, impeding the preaching of the truth faith, and waging aggressive war against Christians. But he was more explicit than Vitoria had been in his emphatic denial, based on firsthand knowledge, that any of these abominable acts had actually been committed by the Indians. Las Casas’s stance on the two main issues—the natural-slavery question and the validity of dilatatio to justify conquest—is of interest. On both, he conceded the legal validity of the principles and rested his case on the facts instead. That is, he accepted the Aristotelian thesis that some persons are naturally suited for the condition of servitude. But he then vigorously argued that, as a matter of fact, the Indians of the New World did not fall into that category. He took a similar approach to dilatatio. Like Vitoria, he basically conceded its validity. But he went on to argue that it could only serve as a justification for conquest if the acquisition of sovereignty was, in fact, truly necessary to effectuate conversion. In his opinion, it was not necessary. On the basis of his own extensive experience in the Americas, he insisted that conversion could be brought about by more moderate means. Specifically, the Spanish could establish missions on their own territories near the frontiers with Indian states and then demonstrate, by example, the superiority of the Christian life. The natives, he believed, could be relied on to recognize that superiority and then to adopt the religion voluntarily—with no actual need for Spanish political rule. Sepúlveda advanced four arguments in support of the Spanish conquest policy. The fi rst was that the various sins committed by the Indians (including idolatry and sundry sins against nature) justified war against them. Second was the classic Aristotelian argument that the base nature of the Indians made them naturally suitable for the role of servants to the

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more advanced and civilized Spaniards. Th ird was the dilatatio principle. And fi nally, he argued that Spanish rule provided increased protection to weak and vulnerable natives. It is noteworthy that none of these arguments alleged the commission of any offense by the Indians against the Spanish specifically, though the first one rested on violations of general natural law. This spirited juridical showdown, unfortunately, produced all too little in the way of concrete results. The adjudicating panel proved annoyingly remiss in its duty to arrive at an agreed resolution of the issues. One problem was that Soto was called away to another urgent duty, attendance at further sessions of the Council of Trent. There is evidence that, by 1557, nearly all of the panel members had composed individual opinions, but these have been lost. It appears that Soto abstained, and that a collective judgment was never arrived at, despite the earnest efforts by the Council of the Indies, continuing over a period of some years, to obtain one. Las Casas has been said to have won “a technical victory” in that Sepúlveda’s treatise remained suppressed (not to be published finally until the late nineteenth century). But the fact remains that no judgment was rendered. The affair appears to have rekindled Soto’s interest in legal issues relating to the New World. In the period following the debate, he published a treatise, entitled De Ratione Promulgandi Evangelium (On the Promulgation of the Gospels), analyzing the legal basis of Spain’s rulership of the New World. Sadly for present-day scholars, this text has been lost. If the great debate at Valladolid had little immediate impact, the position of las Casas won official favor in the longer run, largely as a result of the work of a lawyer named Gregorio López de Tovar. Originally from Guadalupe in Spain and educated at Salamanca, he served the Spanish government in various high capacities, including the important post of president of the Council of the Indies (in 1543– 60) at the time of the Valladolid debate. He appears never to have visited the New World, but he was married to the niece of Francisco Pizarro. López was seen as an opponent of Vitoria, in that he, unlike Vitoria, supported the validity of the papal grants as a basis of Spanish sovereignty over the Americas. But he revealed the influence of las Casas, too, in his contention that this acquisition of sovereignty did not entitle the Spanish to take immediate possession of their territories by armed force. They had first to attempt to persuade the Indians, by peaceful means,

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to submit voluntarily to their new masters. Only if voluntary submission was refused could conquest by armed force proceed. López’s position was incorporated, in 1573, into a new legal ordinance regulating the conquest process. Henceforth, the word “conquest” was to be eschewed altogether, in favor of “pacification.” In dealings with Indian groups, the positive benefits of Spanish rule were to be stressed. But it was also provided that, if the natives were to oppose Spanish settlement and the preaching of the Christian faith, then force could be used against them.

The Humanitarian Thesis Another possible root of Spanish title was based on what could be called the humanitarian thesis, the essence of which was that rulers who committed systematic violations of natural law in the course of governing could be deposed by foreign parties. Its roots lie in the claim asserted by Innocent IV of jurisdiction of the papacy to punish violations of natural law, even if they were committed by non-Christians. Pagan princes accordingly risked such papal intervention if they engaged in or tolerated perverted practices such as polygamy or the worship of idols. Applying this reasoning to the situation in the Americas, the contention was that the native Indian rulers were guilty of various unlawful acts, in the form of cruelty and oppression inflicted onto their subjects—and that the Spanish were thereby entitled to wage a just war to put a stop to that wrongdoing, even though they were not themselves the victims of it. This marks the first appearance in international legal history of what would later be called the principle of humanitarian intervention. It was as controversial at its inception as it remains today. Vitoria gave it at least some support, conceding that it was lawful for the Spanish to wage war against Indian rulers who inflicted “oppression and wrong” on their subjects. The humanitarian argument, in a decidedly generous form, was asserted most forcefully by the Spanish vice-regal government of Peru. Since there was doubt as to whether the requerimiento had been read out at the time of Pizarro’s conquest, it appears that there was greater question than in other areas as to the validity of Spain’s legal title. The first Spanish viceroy, Francisco de Toledo, resolved to settle the matter. He did so, largely on the thesis that the Inca rule which preceded the Spanish one had been exceptionally

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brutal, and that the Spaniards were consequently rescuers of the Incan subjects from tyranny. This thesis was set out in 1571 in an anonymous publication that was clearly inspired by Toledo, entitled “Defense of the Legitimacy of the Rule of the Kings of Spain in the Indies, in Opposition to Bartolomé de las Casas.” It referred to the tyranny of the Inca kings and expressly disputed the thesis, asserted by las Casas, that the Incans had been voluntarily accepted as lords by the people. Not content with this, Toledo set in motion a formal inquiry into the history of Incas, carried out in 1570–72. This informaciones process (as it was officially called) entailed taking testimony from over two hundred Indians at eleven different locations in Peru. Modern social scientists would look askance at the methods employed. Elaborate statements were put to the Indian witnesses, to which they were then expected to give a simple yes or no response. The conclusion reached, not surprisingly, was the one that Toledo obviously sought: that the Incan monarchs had been tyrants and that the Spanish were welcome deliverers. The informaciones also provided helpful evidence of such perverted practices by the Incans as human sacrifice and cannibalism. The conclusions of the informaciones were promptly attacked by a prominent Spanish Jesuit writer and renowned orator named José de Acosta. He taught theology at various Jesuit institutions, initially in Ocaña in central Spain and then (from 1569) in Peru, first in Lima and later in Cuzco. Over a period of some fifteen years in Peru, he founded a number of colleges and became thoroughly familiar with the people and conditions there. His account of his many travels marks him as a pioneer of the science of anthropology. To international law, his contribution was a firm rejection of the humanitarian justification for Spanish conquest. This was on two grounds. The first was that, as a matter of fact, the Incan kings had not been cruel oppressors as alleged. Second, and more interestingly, Acosta disputed the lawfulness of humanitarian intervention in principle. Even if the Incan rulers had mistreated their subjects, that would not justify conquest by Spain. “[I]t is not lawful,” Acosta insisted, “to rob a thief, nor does the crime committed by someone else add to our own justice.”

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Prescription A final possible basis of Spanish title was prescription. This was the thesis that rights claimed and exercised for extended periods of time—even if they had no legal foundation initially—ripen, with the passage of time, into true legal rights that other parties are obligated to respect. That is to say, the passage of time alone can transform usurpation into right. The most prominent expounder of the prescription thesis was Solórzano. It has been observed that he insisted on the validity of the papal grants as the basis of Spanish title in the Americas. But he also endorsed the validity of the prescription thesis. Reliance on prescription as a basis of title, however, had some weak points. For one thing, there was doubt as to how long the time interval needed to be to cut off prior titles and claims. Perhaps more serious (especially as the length of time of occupation drifted steadily forward) was the objection of some that prescription was simply not part of natural law at all. It is true that it was a feature of some legal systems, such as the Roman one—but that made prescription an institution only of civil law, not of natural law. And in dealings with exotic foreign peoples, it was natural law that governed. It should not be thought that Spain was the only European power in search of legal bases for the acquisition of territories in the New World—although the Spanish were the most obsessive in that worthy quest. In the course of time, European rivals established their own settlements in the Western Hemisphere, where they faced many of the same legal challenges as the Spanish did.

Rivals and Interlopers The European maritime powers that had been left out of the SpanishPortuguese division of the world were not disposed to remain as mere passive observers in the race for overseas trade and dominion. The principal would-be colonial rivals to the Spanish and Portuguese were France, England, and the Netherlands. The governments of those countries had two distinct legal tasks facing them. The first was to refute the Spanish and Portuguese monopoly claims. The second was to decide on what legal bases their own claims to territorial possession could rest. A few preliminary observations on each of these are in order.

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Regarding the Spanish and Portuguese monopolies, the rival governments, of course, denied that the papal grants could have any effect on them. At most, they could only have the effect of committing Spain and Portugal themselves to staying out of one another’s delimited zones. They could not prejudice third parties. King Francis I of France is said to have scornfully remarked that he “should be very happy to see the clause in Adam’s will which excluded me from my share when the world was being divided.” The English government, not surprisingly, took much the same view. Queen Elizabeth I, in the late sixteenth century, made it clear to the Spanish ambassador that she refused to acknowledge the right of the pope “to partition the world and to give and take kingdoms to whomsoever he pleased.” At the same time, it was generally accepted that Spain and Portugal were entitled to undisturbed possession of areas that they actually possessed and effectively ruled. That, however, immediately gave rise to the question of how far the effective possession by those two countries really extended—an issue on which opinions could (and did) easily differ. An example of this arose out of slave-trading activities by English seamen along the coast of West Africa. The Portuguese ambassador to England lodged a formal complaint against this conduct in 1562. English Queen Elizabeth I responded by conceding that she would not allow her subjects to operate in areas where Portugal actually had “obedience, dominion, and tribute.” But she insisted that any areas not actually controlled and effectively ruled must be free to all comers. She took much the same position when the Spanish ambassador protested against Sir Francis Drake’s incursion into Spanish territory in the course of his circumnavigation of the world in 1577–80. Spain, she insisted, did not have a sufficient presence in the areas navigated by Drake to justify the exclusion of others. The essence of the English case was that the Spanish had a right to undisturbed possession of whatever lands they actually controlled, but that they did not have a true legal title to other areas. Discovery of the lands did not, on its own, confer title. Vitoria shared this opinion. Discovery “of itself,” he insisted, “provides no support for the possession of these lands, any more than it would if they [the native rulers] had discovered us.” King Francis I of France was of a similar mind. “To pass by and eye,” he grumbled, “is no title of possession.” The conclusion to be drawn from this was clear: that until and unless the Spanish actually took permanent possession of lands

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and continuously governed them, other powers were free to step in, even if the Spanish had been the original discoverers. This argument against discovery as a basis of title was, however, only part of the legal battle facing the non-Hispanic powers. It merely established the negative proposition that Spain was not the owner of lands that it did not actually possess and occupy. In those areas, the rival European states were free to move in. But the question then immediately arose: how were those new powers themselves going to acquire positive legal title? To this conundrum, a number of answers were devised—each one with its distinctive set of advantages and drawbacks.

Alternative Theories of Title to Territory One possible basis of title was occupation—occupation, that is, of land that was unpossessed by anyone else at the time of the European arrival. This had deep roots in the Roman law of occupatio, which was held to be a principle of the ius gentium rather than of the Roman civil law. In its original application, it enabled a person to acquire full legal title to an object that previously had no owner (a res nullius, in the technical Roman parlance). The basic rule was that, once the unowned object was taken physically into the custody or control of a person, that person thereby became the owner (assuming that he also had the intention of acquiring ownership). There were, however, some serious problems with applying occupatio to the conditions of the New World. For one thing, it was far from clear that land could be acquired by that means. The Roman law on the subject had concerned only movable objects. In the Carolingian period, however, French monarchs had begun to extend the principle to encompass land. An even greater puzzle was whether the New World territories could really be said to be owned by no one, since native societies were present there when the Europeans arrived. To deal with this second problem, a variant of the occupation theory was later devised, under such labels as the “settlement” or the “agricultural” thesis. According to this theory, which was much favored by British colonists, an indigenous population that was nomadic, rather than settled, would not be regarded in law as having either ownership or even mere possession of a territory. Land could be regarded as being possessed only when it was being

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cultivated by its occupants—and the first persons to undertake that worthy chore became, ipso facto, the first true occupiers and hence the legal owners. The erection of a fi xed dwelling could be a key piece of evidence for possession in this full sense, as well as the presence of rows of corn or wheat or the like. This theory received some support in the eighteenth century from the eminent natural-law writer Emmerich de Vattel. Another possible basis of title was conquest. This bore an obvious resemblance to just war, but with the crucial difference that it relied entirely on the fact of defeat of the natives in war as the basis of title, without regard to whether there had been a just cause for the war. This justification, too, was employed by the English, primarily in their early expansion efforts. It was the basis of English possession of Ireland, for example, dating from the original invasion of 1175 (although papal authorization was also claimed for the invasion). Conquest was also the source of England’s title to the Isle of Man (from 1406) and to Wales (from 1536). It was natural, then, for the English to invoke it for their American possessions, too. At least in the early period of English colonization, in the seventeenth century, the colonies were consistently described as “lands of conquest.” Conquest, however, was problematic as a basis of legal title for several reasons. For one thing, traditional just-war doctrine held that acquisitions that lacked a preexisting iusta causa conferred no title, but were mere acts of banditry. Also, English colonists themselves were generally disinclined to base their title on conquest for a very practical reason: because, according to English law, lands that were acquired by conquest belonged to the crown. This meant that they could then be governed by the crown alone, as a matter of royal prerogative, without any need for legislation by the parliament. It meant, too, that titles to individual landholdings were granted at the pleasure of the crown, instead of inuring automatically to those who had actually hazarded life and limb to acquire them. These considerations led the English colonists to prefer occupation to conquest as their legal title. With occupation, it is the occupier’s own effort that is the basis of the title—with ownership then belonging to the occupier entirely in his own right. The most secure possible route to a valid title was to acquire it directly and explicitly by way of transfer from the natives. Th is would normally be expected to be in exchange for something in return, but that was not a strict legal requirement. The legal requirements for cession—again borrowing

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liberally from Roman law—were seen to be two: first, a bona fide intention on the part of the prior owner to part with his title, and second, some outward, formal act of transfer to mark the actual passage of ownership. The Dutch were the first to make significant use of this method of acquisition. They also engaged in one of the most memorable applications of it, in their purchase of Manhattan Island from local Indians in 1626. The payment was a collection of objects to which legend has firmly affi xed the value of twentyfour dollars. The French were the chief supporters of this strategy. More than any other Europeans, they took care to obtain at least a formal acceptance or submission on the part of native rulers to their dominion, although no specific ceremony or form of words was prescribed for this. It must be admitted that the evidence of this consent was sometimes fairly tenuous. This was instructively illustrated by French explorer Jacques Cartier’s account of a ceremony in 1534 in present-day Canada. A cross was placed on the territory, and Cartier and his fellow explorers knelt in prayer before it, with hands joined. The natives did not participate in the prayer, he conceded, but they witnessed it and indicated their approval by means of “admiring looks.” Cartier also claimed that over thirty Indians came to his ships in canoes, indicating their assent to the cross. English colonists, too, came to rely heavily on cession (as well as on occupation, as noted before). An early example was a conveyance of land in present-day Connecticut by the Mohegan Indians to English colonists in 1640. Sometimes, moral or religious sensitivities provided the motivation for a policy of purchase. Quakers were especially scrupulous about obtaining consent from native rulers. William Penn, most famously, was careful to purchase land for his colony of Pennsylvania from the local Delaware Indians (with a vivid, if imagined, image of the event painted a century later by the artist Benjamin West). But there were less high-minded reasons, too. As in the case of occupation, lands acquired by purchase belonged to the purchaser in his own right, without any dependence on the largesse of the crown. Even cession, though, was not without its problems. The principal one was the question of whether the purported transferor actually had the power or right to effect the transfer. In European law, there was a venerable principle that a prince, being a mere steward of his kingdom rather than an ab-

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solute owner, did not possess the right or power to make alienations that were prejudicial to the welfare of the kingdom. A decretal issued by Pope Honorius III in 1220, objecting on this ground to a purported alienation by the monarch of Hungary, was an important early articulation of this idea. But there was still room for uncertainty as to whether transfers in violation of this principle would actually be null and void, or whether they would merely be acts of personal wrongdoing on the native monarch’s part (with the transferee receiving good title nonetheless).

Claiming the Sea If, in the Americas, the chief concern of the non-Hispanic states was to find bases of title of their own to their colonial territories, the challenge in the Eastern Hemisphere was very different—and so was the response from the arriviste Europeans. In the Western Hemisphere, the Spanish (and their fellow Europeans later) had been concerned to justify their title to the land. They largely left the sea to look after itself. In the Indian Ocean world, in contrast, the Portuguese faced a series of well-established states that they were unable to defeat or dislodge, as the Spanish had done in the New World. The reason, in large part, was that the Asian populations had prior exposure to the diseases that the Europeans carried—unlike the American Indians, whose population was reduced by some 90 percent in the wake of the Spanish conquests. Moreover, these Asian states had long experience of their own in international relations—including, of course, the two standard categories of state practice, diplomacy and treaty making. What the Asian states do not appear to have had (so far as can be presently discerned) is any significant doctrinal tradition. That is to say, there is no evidence that they thought about interstate relations in terms of some underlying systematic philosophy of human social conduct analogous to the natural-law system of the European states. It would be rash to assume, however, that the states of the Indian Ocean basin had made little advance beyond, say, the city-states of ancient Mesopotamia or the Chinese of the preimperial era. It is possible that future research will bring great changes to our current state of knowledge in this regard. What is clear is that the Portuguese, soon after their initial arrival on the Asian scene in 1498, concentrated on possessing the sea rather than the land.

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With their landholdings confined to a few selected points, such as Goa, Malacca, and Macao, the principal focus was on trading, chiefly the lucrative spice trade. The Portuguese claimed a monopoly over this trade, as explicitly provided for in the papal grants. In this connection, it may be noted that King Manuel I of Portugal was officially described as “Lord of Navigation and Commerce in Ethiopia, Arabia, Persia and India.” Nor were the Portuguese content with mere grand-sounding titles. They energetically enforced their monopoly claims and, in the process, sought to claim possession of the Indian Ocean itself, at least vis-à-vis would-be European rivals. The goal was to establish a “maritime” empire in the truest sense of that term. There was, however, considerable room for doubting the validity of the Portuguese claims. In Roman law, for example, there was direct authority to the effect that seas are not subject to ownership. Nevertheless, the Portuguese made a concerted attempt to exercise actual control over Indian Ocean trading. They established a network of strategic fortifications, bolstered by a naval presence, and proceeded to operate what later parlance would refer to as a protection racket, on a literally oceanic scale. Trading was allowed only by purchasers of certificates known as cartazes, which were essentially safe-conduct permits—accompanied by a requirement that the holder must call at Portuguese ports during the voyage in question. Merchants having the temerity to trade without acquiring a cartaza risked being captured or attacked. Some were bold enough to take that risk. Dutch merchants especially became increasingly active in Indian Ocean trading, especially after the incorporation of the Netherlands East Indies Company in 1602. The Portuguese responded by capturing Dutch ships whenever possible and confiscating their cargoes. The Dutch reacted in kind, with the result that an undeclared naval war raged in the Indian Ocean. The Portuguese naturally insisted that the Dutch, as interlopers, had no legal right to attack or capture Portuguese vessels in the absence of a state of war between the two countries—whereas their own activities in that direction constituted not war, but mere law enforcement (i.e., enforcement of the papally conferred trading monopoly). The Dutch East India Company had a redoubtable legal champion on its side, in the person of Hugh de Groot, better known in Latin rendition as Hugo Grotius. From a prominent family in Delft, Grotius was something of a child prodigy, whose pursuits included classical literature and histori-

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ography as well as law. His experience in international affairs began early. In 1598, before he was twenty, he accompanied a Dutch diplomatic mission to Paris. Later, he undertook legal work for the Dutch East India Company, in the course of which he wrote (but did not publish) a lengthy treatise to justify the captures of Portuguese vessels in the Indian Ocean by ships of the Dutch East India Company. He called this work De Indis (On the Indies), although, when it was finally published in full in the nineteenth century, it was given the title De jure praedae (On the Law of Prize), under which it is now commonly known. In all events, Grotius assured the Dutch captors that they should not hesitate to assert their rights “through an anxious and overnice avoidance of things not essentially dishonourable.” Grotius brought a battery of legal arguments to bear against the Portuguese and in favor of the East India Company. Central to his case was the proposition that the high seas, by their nature, are not susceptible of ownership as private property. On this thesis, the papal grants could be summarily dismissed as “a vain and empty pretext.” He also devoted considerable attention to refuting claims that prescription might be the basis of Portugal’s rights. He was careful, too, to build a case for the waging of just war by the Dutch East India Company in its own right, without regard to whether the Dutch state was itself at war with Portugal. In his opposition to ownership of, or sovereignty over, the high seas, Grotius built on earlier work by others, specifically on objections that Spain had made to Venice’s claim to ownership of the Adriatic Sea. In 1564, an attack on these claims was made by a Spanish writer named Ferdinando Vázquez y Menchaca. Vázquez was a native of Valladolid, the son of a member of the royal council of Castile. He studied under Vitoria at the University of Salamanca and went on to become a legal adviser to King Philip II of Spain, and also to teach at Salamanca and to write on questions of natural law. In a book devoted largely to various issues of private law, he articulated Spain’s objections to Venice’s claim of sovereignty over the Adriatic. His argument— adopted later by Grotius—was to the effect that the only possible basis of title could be occupation—and that occupation of whole seas was impossible because it required a continuous presence and an effective exercise of governmental power. In the longer term, Grotius’s labors became better known than those of Vázquez because they were published separately (and anonymously) in

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1609, as a short book entitled Freedom of the Seas, which was a reworking of one of the chapters of the De Indis manuscript. It caused enough of a stir to earn it a place on the Spanish Inquisition’s Index of Forbidden Books. In the event, the book found its principal use in a context different from the one intended: to contest the lawfulness of a decree by the English government in 1604, asserting a monopoly over fishing in the adjacent seas. In this dispute, the book enjoyed some modest success. A Dutch diplomatic mission, armed with Grotius’s arguments, succeeded in persuading the English government to suspend the decree in 1610. Grotius’s (and Vázquez’s) conclusions were subjected to vigorous challenge. The principal response came from a Portuguese writer named Serafim de Freitas, a friar who taught canon law at the University of Valladolid in Spain. In a book entitled De iusto imperio Lusitanorum asiatico (On the Just Empire of the Portuguese in Asia) in 1625, he presented what was, in substance, the Portuguese government’s case against Grotius. He advanced an array of arguments, including an insistence that the papal grants were binding on the Dutch, as well on the Spanish and Portuguese themselves. He disputed the existence of any natural-law right of freedom of trade for individuals and also contended that there was nothing in principle to bar a state from exercising an effective control over at least an area of the high seas. His principal argument, though, was founded on prescription: that Portugal had begun to exercise its monopoly in the early fifteenth century and had consistently maintained and enforced it. As a result, it now had legal validity without regard to any defects in its origin. Similar arguments—apparently independently derived—were expounded ten years later by an English writer named John Selden. Selden was a polymath, lauded by one admiring contemporary as “the learnedst man on earth.” He was said, among other things, to have been proficient in some fourteen foreign languages. In addition, he was also a minor poet and a friend of Ben Jonson and John Milton. Long service in the English parliament proved eventful, as it included a period of arrest for excessively vigorous defenses of parliamentary privileges. As a contribution to religious studies, Selden advanced an interesting thesis of the bisexuality of deities in various ancient faiths (a theme that is reflected in Milton’s Paradise Lost). In a somewhat less speculative vein, he took an interest in international law, where his principal endeavor, a book published in 1635 entitled Mare Clausum suede Do-

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minion Maris (Closed Sea or Sovereignty over the Sea), took issue with Grotius, largely along the lines set out earlier by Freitas. One of the most impressive things about these debates over freedom of the seas and New World conquest and settlement, as well as the earlier ones about medieval crusading, was the extent to which natural law was, by and large, accepted on all sides as the governing body of principles. It was all too appropriate that natural law should do such faithful ser vice, since it was, by its very essence, a universal (and eternal) set of principles, as applicable in wind-swept Tierra del Fuego as in the hallowed confines of the Vatican in Rome. But international law was about to embark upon what might be called an age of exploration of its own, in which a leading—and growing—role would be played by natural law’s humble manservant, the ius gentium.

II Reason and Its Rivals (ca. 1550–1815)

[B]y mutual consent it has become possible that certain laws should originate as between all states, or a great many states; and it is apparent that the laws thus originating had in view the advantage, not of par ticu lar states, but of the great society of states. And this is what is called the law of nations, whenever we distinguish that term from the law of nature. —Hugo Grotius

 The peace negotiations for the Thirty Years War, which took place in two towns in Westphalia (Osnabrück and Münster), were a major political showcase. They were not a rushed affair. Talks were originally to have begun in 1642, but haggling over matters of etiquette and precedence of the delegates kept things from getting under way for some two years. What the proceedings lacked in urgency, however, they made up for (at least partly) in style. One ambassador’s train of attendants was so extensive that it is said to have taken a full hour to pass by any given spot. The talks were comparably slow-moving. Only after four years of negotiations, in 1648, were two treaties concluded that comprised the Peace of Westphalia: the Treaty of Osnabrück, between Sweden on the one side, and the Holy Roman Empire and German princes on the other; and the Treaty of Münster, between France and the empire and princes. Among the achievements of the peace was the creation of a new constitutional order within the Holy Roman Empire. This confirmed the powers of the individual German states—which they had already been exercising in practice—to act independently in international affairs by such means as concluding treaties of alliance and peace. Crucially, however, at least in theory, these powers were not to be exercised to the prejudice of the Holy Roman emperor himself. Although the papacy had played an intermediary role in the negotiations, Pope Innocent X made it clear that he was strongly opposed to the concession of religious freedom to the Protestant rulers within the empire. He sourly issued a formal denunciation of the settlement, condemning the peace as “null, void, invalid, iniquitous, unjust, damnable, reprobate, inane, empty of meaning and effect for all time.” The message was clear enough, even if the practical impact was nil. With the passage of time, the Peace of Westphalia came to assume a sort of triple identity—first, as a settlement of immediate issues at stake in the

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Thirty Years War; second, and more broadly, as a basis for a longer-term European balance of power; and finally, and most expansively of all, as a model or metaphor for modern international affairs in general. It is the third of these that has played the greatest role in the collective mentality of international lawyers. In this connection, the Peace of Westphalia has sometimes been hailed as the beginning of the modern state system or as the foundation event of modern international law. Such claims are largely hollow. International law, in the sense of a consciousness of rules that place binding obligations on states, had existed for many centuries before 1648. Nor did the peace of that year mark any kind of “constitutional” event in the history of Europe at large. At most, it was an attempt to bring a measure of longterm political stability to the European political scene, by way of a kind of long-term balance of power between the major states. Over the course of time, the metaphorical aspect of the peace became more prominent than the true historical one, as “Westphalian” came to be employed largely as a term of abuse. It has come to be a derogatory shorthand expression for a picture of world affairs that is fundamentally anarchical—that is, characterized by jealously independent states perpetually competing with one another for territorial or other advantages, and acknowledging no superior authority. This bleak stereotype may have only the most tenuous connection (if even that) to the terms and context of the actual Westphalian settlement. But, for better or worse, the legend has proved more potent than the facts. It should be appreciated, though, that the freedom of states in the anarchic “Westphalian” world has never been altogether untrammeled. Admittedly, it is true that, since at least the Reformation, the idea of papal or imperial institutions exercising a permanent oversight or restraint on governments no longer held sway. But one important component of the universalist vision of the Middle Ages still remained. This was natural law. It continued to hover above the various independent states—rather like the emperor over his sometimes overmighty princely subjects—and, at least in principle, to place legal restraints on their actions. The comparison extends somewhat further. Just as the Holy Roman emperor, though much reduced in power from his medieval days of glory, was more than a mere cipher, so natural law was more than the whimsical speculations of bookmen. In fact, its hold over the European mind—if not quite

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so much over the doings of craft y politicians—became stronger than ever. The seventeenth and eighteenth centuries became the golden age of naturallaw thought. Under the imposing heading of “systematic jurisprudence,” it attracted the detailed attention of some of the finest minds of the era. These leading minds, incidentally, would nearly all come from lay rather than clerical backgrounds—another revealing sign of the way in which the world was changing. It must be remembered, though, that natural law had a less prestigious and less prominent partner: the ius gentium. The great story of this era, in fact, would be the steady—and somewhat stealthy—gain of the ius gentium over natural law, eventually to a position of equality and even of dominance. The principal pioneers of this trend were a Spaniard, Francisco Suárez, and a Dutchman, Hugo Grotius. They certainly did not invent the basic idea that relations between states are (or should be) governed by law. But they were the ones who sculpted international law into substantially its modern form. They did this by loosening—though not severing—the close link between the two bodies of law that had been forged in the Middle Ages. The effect was to make international law, for the first time, into a detailed body of specific rules much like any other kind of law. Like so many pioneers, Suárez and Grotius would have been dismayed at some of the directions in which their ideas would later be taken. But that is a development for later in our story. For the present, the focus is on the creation of international law in its modern sense.

chapter four

Putting Nature and Nations Asunder

t was traditionally supposed that Alexander the Great traveled with a copy of Homer’s Iliad constantly to hand, and that he even slept with it under his pillow. A similar story arose of the energetic Swedish King Gustavus Adolphus, the most fearsome commander of the Thirty Years War in Europe (1618–48). His reputed choice of reading material was a ponderous legal tome entitled On the Law of War and Peace (1625), written by Hugo Grotius. Of the two generals, Alexander certainly had the advantage from the literary standpoint. Grotius’s work was a densely learned treatise, heavily weighed down with an interminable mass of humanist learning. So bulky was it that, if Gustavus had had it on his person at the Battle of Lutzen in 1632, it might easily have stopped the bullets that killed him. But the book performed heroic ser vice of another sort. It became the leading text of international law for the next century and more.

I

New Ways of War and Statecraft Independent states had existed de facto in Europe since the demise of the Roman Empire. Only in the thirteenth century, however, with the recovery of Aristotle’s Politics, did the independence of states begin to be accepted as a matter of high principle rather than as a sad misfortune and index of human degeneracy. With the growth and consolidation of the major European states from the late Middle Ages onward, this sentiment grew steadily.

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Along with it, the idea of statecraft as a high art, with distinctive features of its own, also advanced. Where the medieval manuals for statesmen—the “mirrors of princes”—were designed to ensure that power was exercised consistently with morality and religion, there now came to be more concern that power be exercised so as most efficiently to further the wealth and power of the state. Utilitarian considerations, in short, were gaining ground on moral, ethical, and legal ones. These trends had their effect on international legal thought and practice in ways that have yet to be fully explored. Nevertheless, it is possible to single out three developments that illustrate the postmedieval ethos with particular clarity. First was the emergence of a strong conception of state sovereignty. Second was a range of important changes in the law relating to war—most conspicuously, the discarding of the principle of medieval justwar doctrine that precluded a war from being just on both sides. Third was the emergence of a new attitude to political and military alliances with nonChristian states. These developments formed the backdrop to the more general ideas about the nature of international law itself that would be articulated by Francisco Suárez and Hugo Grotius.

Modern Conceptions of Sovereignty The idea that corporate bodies, as such, could have rights under natural law was not accepted in the Middle Ages. Corporate bodies were regarded as mere “fictional” entities, whose very existence was a kind of gratuitous concession on the part of the ruling authorities. Pope Innocent IV—that veritable prince of medieval canon lawyers—was most closely associated with this doctrine. On this thesis, only a person could be a sovereign, and not a state as such. In fact, the term “sovereignty” was a product of feudal law, at the heart of which was the intensely personal, essentially contractual, relationship between lord and vassal. Only later, and gradually, did sovereignty come to be attached to states as corporate bodies—with the implication of state officials as stewards or temporary custodians of a corpus of ongoing rights. Two writers in the sixteenth century expressed this new outlook more than any others. The first was a Florentine scholar whose name would become a byword for wickedness and immorality: Niccolò Machiavelli. Like

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Aristotle, he saw the state as an independent and self-subsisting entity. More importantly, though, he pioneered the idea that rulers were not governed by the same code of conduct as ordinary persons. For individuals, rules of the Christian religion may be said to be binding. But states, as public entities— along with the princes who ruled them—lived by a different set of norms that were peculiar to them. The other major figure of the sixteenth century presented a sharp contrast to Machiavelli. This was the French lawyer Jean Bodin, who wrote in the second half of the century. Comparatively little is known of his life. He was born in Angers, the son of a tailor. After studying at the Universities of Paris and Toulouse, he practiced law in Paris for a time. He was fiercely critical of Machiavelli’s thought and also religiously devout, although in precisely what manner is difficult to say. It is possible that he had some Jewish ancestry, and there was some belief that he converted to Judaism during his life. But he was imprisoned for a time for expressing Protestant views and was denounced by some as an atheist. He only narrowly missed being killed in the St. Bartholomew’s Day Massacre of 1572. Perhaps not surprisingly, he was an advocate of religious toleration, although in the tense atmosphere of the period, he kept this opinion largely to himself. Strongly influenced by humanist learning, he maintained that law was better understood as the product of history than as a set of eternal and unvarying norms. But his modernism had its limits. In a noteworthy treatise on witchcraft in 1580, he advocated the burning to death of those found guilty of that heinous offense. Bodin’s major work, Six Books on the Commonwealth, was published in 1576. If Machiavelli’s writings were, if anything, too clear and outspoken for their author’s own good, Bodin’s were of the opposite extreme—so disorganized and dense that it is often difficult to discern what he was really trying to convey. He is universally hailed as the leading writer on—if not actually the intellectual inventor of—state sovereignty. But it is no easy matter figuring out just what he said on that momentous subject that was so innovative or striking. In general, Bodin was a champion of the centralization of the French state against the various forces of localism. On ths point, he was a radical and doctrinaire figure. He insisted that sovereignty—meaning, basically, the rights of the crown—is unitary and indivisible. There can be no sharing of sovereign rights with lesser members of the community.

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Where Bodin’s ideas broke new ground was in seeing sovereignty not primarily as a property or attribute of a prince, but instead in terms of a corpus of rights with an independent existence, clearly distinct from the person who might have effective custody of those rights at a given time. Bodin, in short, advanced the process of conceptually separating states as such from governments—a seminal step in international law, which would become, in its later stages, primarily a law between states as such and only secondarily a law of governments. Another feature of Bodin’s thought that prefigured later trends was his insistence on a sharp distinction between right and law. Right, he explained, concerns “what is equitable,” whereas law concerns “what is commanded.” The two had no necessary connection with one another. “Law,” as he forthrightly put it, “is nothing else than the command of the sovereign in the exercise of his sovereign power.”  In this regard, Bodin figures as a precursor of nineteenthcentury positivism. It must not be supposed, however, that Bodin rejected the medieval idea of universalism altogether, or that he was a dogmatic proponent of absolute and unlimited royal power. That was far from the case, for he carefully insisted on three important limits on royal power. One was that monarchs must be subject to divine law (i.e., to the commands of God, as expressed in the holy scriptures). Second, monarchs remained subject to natural law, which he envisaged not so much in rational terms as in an intuitive way. The principles of natural law shine forth by their own intrinsic clarity and imprint themselves in the minds of people—including rulers. This subjection to natural law meant, among other things, that monarchs were bound to observe any treaties which they concluded, since the due performance of contracts was a principle of natural law. The third limitation was that sovereigns remained subject to any constitutional constraints that might exist within their realms. Only secondarily was Bodin concerned with international relations. He did not, like Dante, envisage a single world sovereign. He was, however, a strong believer in the idea of a worldwide human community of peoples—to the point of regarding the various nations as constituent parts of a “universal republic of this world.” Natural law was, of course, applicable to the members of this “universal republic,” but Bodin appreciated that natural law, on its own, was not sufficient to regulate the relations between indepen-

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dent sovereigns. As it happened, though, he did not develop this line of thought with any clarity. That would be left to Suárez and Grotius, who would thereby attain the parenthood of modern international law—an honor that might have, but did not, fall to Bodin.

Changes in the Law of War Some important new ideas were also being advanced on the law of war. The most momentous of these was a significant modification of one of the key features of medieval just-war doctrine: the radical asymmetry between the rights of the just and the unjust sides. These flowed logically from the underlying fact that a war could not be just on both sides. The principle of iusta causa was strictly objective, so that whichever side was in the wrong had no entitlement whatever to wage war. This principle underwent an important change in the sixteenth century. The chief figure in this development was Vitoria, who expounded upon the subject in one of his famous relections, entitled De iure belli (On the Law of War), given in 1539—the same year as his discourse on the American Indians. This relection provides the single best summation of medieval just-war doctrine. In this work, Vitoria broke new ground in his exposition of a doctrine of “invincible ignorance.” In principle, he adhered to the traditional position that, strictly speaking, a war could be just only on one side. But at the same time, he conceded that, when there was genuine uncertainty as to which side possessed the requisite iusta causa, and no prospect of an authoritative ruling on the question—that is, a state of “invincible ignorance”—then the war would be treated, for practical purposes, as if it were just on both sides. Strictly speaking, the war would still not actually be just on both sides. But the unjust side would be “excused from sin” if it was waging its struggle in good faith. The important practical result would be that each side would be regarded as having equal rights to exercise the normal prerogatives of just belligerents. Although Vitoria wrote on the laws of war, he could hardly claim to bring practical experience to bear on the subject. He was, after all, a cloistered monk and theology scholar. In the generations following him, three major writers emerged who were considerably more experienced (if not necessarily wiser) in the ways of the world. These newer writers—all from secular

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backgrounds—were men of action and extensive practical experience, and that showed through in their writings. The first of the trio was Pierino Belli, who hailed from Piedmont in northwestern Italy. He probably studied law at the University of Perugia. But he gained significant practical experience in matters of war after becoming military auditor (i.e., a military judge and legal adviser) to Emperor Charles V in 1535. He was then promoted to counselor of war by Charles’s son, King Philip II of Spain. His principal work, On Military Matters and on War, was written in 1558 and published five years later (dutifully dedicated to Philip II). In later years, Belli returned from Spain to his home region to serve the Duke of Savoy in various diplomatic roles. His work had comparatively little impact at the time. It was rediscovered in the nineteenth century (by the prominent Italian legal scholar and statesman Pasquale Mancini) and thereby became a retrospective classic of international law. A more important figure was Balthasar Ayala. A native of Antwerp, then part of the Habsburg domains, he was from a prominent family of Spanish origin. After legal studies at the University of Louvain, he became, in 1580, an auditor in the Spanish army in the Netherlands. The following year, he published the first edition of On the Law of War and on the Duties Connected with War and on Military Discipline. He adhered to the substitution theory of the ius gentium—holding the law of nature to be the law governing humanity during its golden age (in the Garden of Eden) and the ius gentium to be the law governing humanity in its fallen state. Consequently, the institutions of war and slavery were clearly placed in the ius gentium category. The impact of the new tolerance for wars that were regarded as just on both sides is evident in Ayala’s writing. He matter-of-factly reproduced Vitoria’s conclusions, though in slightly different terms. He distinguished between two distinct legal concerns. One was the question of the justice of the war itself, and the other was what he called the effects of war. For a war to be just, it was necessary that the key criterion of iusta causa be objectively satisfied, in the manner of traditional just-war doctrine. Regarding the effects of war, however—meaning chiefly the rights of war such as the right to capture and enslave enemy soldiers—there is equality between the two sides. This marks the first clear exposition of a principle of the law of war that remains fundamental to the present day: that the rights and duties of the bel-

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ligerents regarding the conduct of war are identical, without regard to which side might have been at fault in instigating the conflict. The third major figure in writings on the laws of war was Alberico Gentili, who, like Belli, became largely forgotten until rediscovered in the nineteenth century (in his case, by the English international lawyer and legal philosopher T. E. Holland). Gentili was a native of Italy (from the March of Ancona) who, again like Belli, studied law at the University of Perugia. As he adhered to the Protestant faith, he left Italy for England, where he became a professor of civil law (i.e., Roman law) at Oxford in 1587. His principal contribution to international law was a massive treatise on the laws of war published in 1598. This was a much more substantial work than that of either Belli or Ayala, as it treated the problem of war within a comprehensive framework of natural-law thought. According to Gentili, a war could be just on both sides, provided that each side had “a plausible ground” for resorting to hostilities. The immediate practical effect was to accord an equal entitlement to both sides to exercise the rights of just-war makers. He even identified this principle of evenhanded treatment of belligerents as the clearest of all of the laws of war. In explaining the rationale for this conclusion, he resorted to the imagery of litigation, comparing the impartiality of the laws of warfare to the impartiality of the civil law in “contests of the Forum.” A conspicuous sign of the new outlook on warfare was the stress of these writers on formal aspects of warfare over substantive questions of the justice of the underlying dispute. In particular, there was now a great deal more emphasis than before on the need for a public and explicit declaration of war—though no specific form was prescribed. This, too, was an indication of the fading grip of medieval just-war theory and the gradual trend toward concentration on what came to be called the formalities (or the conduct) of war, rather than on the lawfulness of the resort to war. Gentili held the issuing of a declaration of war to be a requirement of natural law. Again resorting to the analogy of litigation, he compared a declaration of war to the ser vice of a writ in a civil lawsuit. Another important change from the Middle Ages was a new emphasis on the manner in which war was conducted. Increased attention was paid, for example, to the need to enforce discipline among troops. Nearly a third of Ayala’s treatise was devoted to the topic of military discipline, which in his

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opinion called for “a rough and sharp kind of punishment” of misconduct. Among the topics treated were the question of female camp followers (“a great disgrace”), the need for regular commissary arrangements, the duties of various officers, eligibility for ser vice, military oaths, military courts and punishments, plus various offenses such as disobedience, desertion, cowardice, and theft. Ayala had plainly acquired great insights into human nature in the course of his military ser vice.

Alliances with Infidels A third striking indication of the new statecraft in action concerned military alliances with infidel powers. The traditional view in the Middle Ages had been that Christian powers should not enter into such arrangements. It will be recalled that King Alfonso IX of León had been excommunicated in the twelfth century for committing that sin. Commercial treaties with Muslim and other non-Christian powers were permitted, but not political or military ones. It may be noted that this stricture had nothing to do with just-war doctrine. It was more in the nature of a general precautionary measure. Beginning in the sixteenth century, however, attitudes—and practices—began to change. The decisive step occurred in 1536, when King Francis I of France concluded a military alliance with the Ottoman Empire, directed against his archrival, Charles V. This was done with some caution, in combination with a commercial agreement. The commercial terms were put in writing, but the political and military arrangements were secret and oral. The plan was for the two powers to mount a coordinated attack against Charles V in Italy. Some cooperation did occur. Turkish troops landed briefly in Italy, and a French fleet assisted the Turks in besieging Corfu. When Francis made peace with Charles in 1538, however, the Ottoman alliance lost its chief rationale, but it did not mark the end of French-Turkish cooperation. In 1543, a Turkish fleet assisted a French one in besieging Nice. The Ottoman fleet even wintered in 1543–44 at Toulon, where a slave market and a mosque were established. This development shocked public opinion and proved a propaganda gift to Charles V. Later in the century, however, the empire followed France’s lead by concluding a military alliance with Persia in 1595—although this initiative was directed against the Turks and not against any Christian power.

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It would appear that Francis I had no legal scholars to defend his audacious act of Realpolitik. The position was different in the following century, though, when the Dutch East India Company concluded an alliance with the Muslim sultan of Johore against Portugal. Hugo Grotius forthrightly defended this policy in his unpublished treatise De Indis. He regarded religious diversity as being of simply no relevance at all. The only thing that mattered, in his opinion, was the justice of the cause in question. The fact that (in Grotius’s view) the sultan was in the right, and the Portuguese in the wrong, in the dispute at hand was all that was needed to justify the alliance.

Natural Law and the Ius gentium—A Parting of the Ways The various developments just identified were indications of the ways in which medieval modes of thought were steadily losing their hold in legal thought and practice. Accompanying, and underlying, these changes were new ways of thinking about the very nature of international law. The most outstanding innovation, by a large margin, was a rethinking of the relationship between natural law and its less-regarded junior partner, the ius gentium—an innovation that would mark the birth of international law in its modern sense. In a nutshell, what happened during the seventeenth century was a loosening of the hitherto tight bond between these two kinds of law. They were not wholly divorced from one another—that would not occur until the nineteenth century—but they were being firmly pulled apart and given clear separate identities. This came about as a result of the unsuitability of natural-law doctrine to a world in which powerful central governments were emerging, based in territorial states. In certain respects, to be sure, natural law was eminently suited to serve as a basis of law between sovereigns. Since natural law was radically cosmopolitan in character, it could, without any difficulty, be held to be applicable in the furthest corners of the earth, to every single kind of human society. No law, surely, could be more truly international than that. In other respects, however, natural law was profoundly ill equipped to deal with practical questions of international relations. The reason is that natural law was, from its inception, always seen as basically a set of rules about

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interpersonal relations rather than about interstate relations. Nowhere is this more evident than in discussions of the law of self-defense, which focused principally on the rights of individuals to use force when assailed by a wrongdoer. Indeed, just-war doctrine in general had arisen out of debates over whether individual Christians should refuse to perform military ser vice. For a long time, this individualistic character of natural law did not pose a great difficulty. The reason was that, in the Middle Ages, it was universally accepted that rulers were subject to the basic laws of human conduct just as ordinary persons were. The setting in which those rules applied was, of course, very different, depending on whether the actor was a monarch or a peasant. But the rules themselves were conceded to be the same. This “democratic” state of affairs became ever less tenable, however, as nation-states came increasingly to be seen as impersonal corporate bodies, with interests distinct from those of their citizens and subjects—distinct even from those of the rulers regarded in their individual capacities. There came, therefore, to be grounds for thinking that the rules governing the conduct of states were—at least to some extent—different from those governing the relations of individuals. And it was this idea that became the core of later international law. The question then immediately presented itself: where were the rules governing the relations of states to come from, if not from natural law? Fortunately, an answer was at hand—or at least the raw material for an answer. The necessary rules for interstate conduct could come from the ius gentium. In order for this to be feasible, though, it was going to be necessary to think about the ius gentium in rather different terms than before. This would not prove to be an easy task. It will be recalled that, during the Middle Ages, the tendency had been to associate the two bodies of law closely, by way of either the substitution or the emanationist theory. The emanationist theory, which posited the closest bond between the two, continued to exert a hold. Soto, for example, endorsed it in his contention that the ius gentium included “everything that men have drawn as conclusions from natural principles.” Second thoughts, however, were growing on this subject. Nowhere is this more evident than in the somewhat confused opinion(s) of Vitoria. As a staunch Thomist, he naturally had an inclination toward the emanationist

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theory. At one point, he loyally described the ius gentium as a “derivation from natural law.” But he immediately clouded the picture by conceding that there were “occasions” when the ius gentium was not derived from natural law. He proceeded to give four examples: inviolability of ambassadors, the establishment of the sea as common property, the prohibition against enslaving prisoners of war, and the principle that it is “inexpedient to drive strangers out of one’s land.” In those instances, the binding force of the ius gentium rested not on natural law but instead on “the consent of the greater part of the world.” This was clearly reminiscent of the dualistic thesis of Isidore of Seville—the belief that the ius gentium has a different content from natural law, that it governs things that are outside the scope of natural law. Vitoria then went on to note that, even if these ius gentium rules are not actually derived from natural law, they nevertheless have a certain naturallaw flavor. This is evident in the fact that they are (in his conception) binding on the entire world, without exception—even on states whose governments have not consented to them or accepted them in any way. This ius gentium was therefore regarded by Vitoria as, in effect, international legislation, in that it was based on the collective consent of the world at large. “[T]he consent of the greater part of the world,” he explained, “is enough to make [a custom] binding . . . even if a minority disagree.” The ius gentium consequently “does not have the force merely of pacts or agreements between men, but has the validity of a positive enactment,” that is, of enacted legislation. All of this was a little hard to follow, and it must be said that Vitoria’s thinking was not very coherent or consistent on this question. In the seventeenth century, two later thinkers—Suárez and Grotius—were to bring a greater measure of clarity to these premonitory sentiments voiced by Vitoria.

The Contribution of Francisco Suárez The first and most systematic case made during this period for a clear separation between natural law and the ius gentium came from the pen of the Jesuit scholar Francisco Suárez, who wrote in the late sixteenth and early seventeenth centuries. Originally from Granada in Spain, he taught (like so many) at the University of Salamanca, but moved to the University of Coimbra in Portugal in 1597, where he gave a celebrated set of lectures on

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law in 1601–3. These were published in 1612 as A Treatise on Laws and God the Lawgiver. This opus contained his exposition on the topic at hand. Regarding natural law itself, Suárez offered nothing dramatically new. He wrote in the rationalistic tradition of Aquinas, holding natural law to consist of “self-evident principles of conduct,” together with “those points which follow necessarily and by a process of obvious inference from the said principles.” Natural law, in other words, concerns rules that are “inherent in nature.” Where Suárez made an important break with the past was in his treatment of the ius gentium. In particular, he made two important innovations that would chart the future of international law. First, he explicitly rejected both the emanationist and the substitution theories. Second, he asserted that the ius gentium, when properly understood, must be regarded as a law between states as such. In both of these respects, Suárez’s exposition resuscitated ideas first broached (if only in barest outline) nearly a thousand years earlier, by Isidore of Seville. Suárez’s discussion, however, was considerably more detailed and systematic than Isidore’s bare outline had been. Suárez’s affinity with Isidore’s ideas about natural law and the ius gentium was made clear, for a start, in a negative way—in his explicit rejection of both the substitution and the emanationist theories of the Middle Ages, concerning the relation of the ius gentium to natural law. The substitution theory, it will be recalled, held the ius gentium to be, effectively, a secondary (and second-rate) form of natural law, that is, a modified version of natural law suitable for a fallen humanity expelled from the Garden of Eden. The true position, Suárez maintained, is that there is only one body of natural law and that it is sufficiently flexible to govern humanity in both its prelapsarian and postlapsarian conditions. He also expressly rejected the emanationist theory, insisting instead that anything which is logically deducible from the basic, self-evident principles of natural law must actually be natural law in its own right. This is because natural law is, by definition, a comprehensive logical system comprising basic principles (or axioms) plus the propositions deducible from them. The ius gentium, in Suárez’s opinion, falls into the category of “positive law,” employing a term that had been devised in the Middle Ages. Positive law, he explained, is human law, “devised and established proximately by men.” Precisely because positive law is a fruit of human initiative and free will, it is not derivable from natural law by the force of logical necessity. It

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relates instead to “matters which cannot be defined through natural reason alone.” The ius gentium, Suárez insisted, is rooted in human experience, with all of its richness and variety, rather than in the iron laws of logic. Its basis is “the common usage of mankind.” The precepts of the ius gentium [Suárez pronounced] were introduced by the free will and consent of mankind, whether we refer to the whole human community or to the major portion thereof; consequently, they cannot be said to be written upon the hearts of men by the Author of Nature; and therefore they are part of the human, and not of the natural, law. Suárez’s second major innovation—also foreshadowed by Isidore—was his assertion that the ius gentium is a law between states as such—the idea that became the very definitional core of international law. He contended that the expression “ius gentium” had come to be used, regrettably, in two different senses, one of them proper and the other not. The improper usage is the old Roman-law one, which saw the ius gentium as a global common law dealing with the transactions of private parties. These were laws, Suárez explained, “which individual states or kingdoms observe within their own borders” and which “are similar and are commonly accepted” in the national legal systems of states around the world. But this kind of law, he insisted, is really only the civil law of the states concerned. Quite different from this, in his opinion, is the proper usage of the term “ius gentium”: to mean “the law which all the various peoples and nations ought to observe in their relations with each other.”  Another important contrast between natural law and the ius gentium should be carefully noted. Natural law is not, by its nature, a theory specifically about relations between states. It is primarily a set of rules for interpersonal relations in general. It is true that natural law is applicable to states— but only in the indirect sense that rulers are subject to it, just as ordinary people are. The ius gentium is very different. It is a law that is specifically directed to regulating interstate relations. It is unfortunate that Suárez’s terminology was confusing. The original meaning of ius gentium in Roman law had been the corpus of private law common to most or all nations—that is, precisely what Suárez was now

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asserting to be the improper meaning of the term. What he claimed as the proper meaning of the term—a customary law agreed among states—was altogether foreign to Roman law. Later generations (as will be seen) would adopt different terminology for what Suárez called the ius gentium proper. They would label it the “voluntary” (or “volitional”) law of nations. Later, it would more commonly be called the “positive” law of nations. The important point, though, is that Suárez was the first (since Isidore) to articulate the idea of a corpus of man-made international law alongside—and distinct from—natural law, and devoted specifically to the sphere of interstate relations. Suárez did not insist that the ius gentium (in its proper sense) be absolutely uniform throughout the world. Echoing Isidore (once again), he merely held that it is observed “as a general rule, by almost all.”  The implication—though not spelled out explicitly—was that the ius gentium is essentially contractual in character. It arises from agreement between states and is therefore binding only upon states that are actually parties to the agreement in question. This view was importantly different from that of Vitoria, for whom the ius gentium had a legislative character and was therefore binding on all states. The difference in viewpoint is an indication of the extent to which Vitoria was still in thrall to the dominant medieval view of the ius gentium as closely allied to natural law, in contrast to Suárez’s clear separation of the two. Given that Suárez’s ius gentium was seen as man-made and as contractual in character, the logical implication was that it could be altered. This, too, was in marked contrast to the changeless and eternal character of natural law. In practice, however, as Suárez readily acknowledged, changes could be made only with difficulty, since the general consent of all nations would be required. But there was at least no theoretical barrier to change. It should not be supposed that Suárez believed that the ius gentium and natural law were utterly independent of one another. He conceded that there was necessarily a sort of family resemblance between them, given that both were rooted in the fundamental principle (derived from Aristotle) of the natural sociability of humankind. The ius gentium is therefore “in harmony with nature itself,” in the sense that it does not contradict natural law. It is best regarded as a supplement to natural law, an exercise of human lawmaking activity in areas where natural law conferred a freedom to operate. As

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Suárez explained, the ius gentium “has such a close relationship to nature . . . that it has grown, almost by a natural process, with the growth of the human race.”  Natural law therefore provides a certain measure of guidance to the content of the ius gentium—but this is merely in the nature of a general indication, since Suárez adhered consistently to the position that the ius gentium is not derivable from natural law by the canons of logical deduction alone. In certain respects at least, the two bodies of law were envisaged as working in a kind of partnership, with the ius gentium operating, so to speak, closer to the ground. While natural law prescribes and forbids certain forms of conduct, it does not specify penalties for infringement. In legal parlance, it would be said that natural law operates exclusively at the normative level— meaning that its task is to articulate standards of conduct. The important ancillary task of enforcement falls within the purview of the ius gentium. The illustrations that Suárez gave were the enslavement of prisoners of war and the capture of enemy property by the just side in war. He explained these as punitive measures, inflicted upon the unjust side for its wrongful and violent resistance to the rule of law. As such, they are features of the ius gentium rather than of natural law. According to Suárez, the ius gentium can depart from the natural law in refraining from imposing punishments for violations of certain natural-law rules—although the ius gentium cannot, of course, actually contradict or annul the laws of nature themselves. As examples, he gave prostitution and the use of deception in contracts (provided that it was “not excessive”). Although natural law forbids both of these acts, it is common for states to refrain from inflicting punishments for them. Such acts are still evil, to be sure, and, as such, they continue to be prohibited by natural law. But they are not punishable in human courts of justice. The ius gentium may therefore be regarded as, in general, more tolerant of human foibles and moral weaknesses than the more rigorous and unbending law of nature. For a concrete illustration of the interrelation between the two bodies of law, Suárez appealed to diplomatic law. The admission of ambassadors from foreign states into a state’s territory, he maintained, is not obligatory under natural law, but it is required by the ius gentium. Once a ruler elects to admit a foreign ambassador, however, natural law kicks in to provide the ambassador with a range of immunities from the local law. In Suárez’s explanation,

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the envoy is admitted pursuant to a tacit understanding between the two states that the immunities will be granted, and natural law requires that this understanding be duly honored. The result of Suárez’s exposition was to present a dualistic picture of international law, reminiscent of that of Isidore but far more detailed. International law, in this view, consists of two conceptually distinct bodies of law. First is natural law. This is not a law applicable to states alone, but to all humans, from the highest to the lowest. It is applicable to states, though, in the sense that princes are bound by it in the course of their governmental functions, just as common people are in their day-to-day lives. The second component of international law is the ius gentium proper. In contrast to natural law, this is a positive (i.e., man-made) law applicable only to states as such, arrived at by agreement between the states. It must be noted that here, too, some watchfulness is required concerning terminology. In this dualistic outlook of Suárez, there is still no single expression for “international law” that covers both bodies of law. “Ius gentium” may translate literally as “law of nations,” but it referred to only one of the two component types of law, not to both of them in combination. Nevertheless, the importance of Suárez’s careful exposition of his ius gentium proper, as a corpus of law applicable solely to interstate relations, can hardly be overstated. It constituted the conceptual core of international law in its modern sense, set out in clear and explicit form for the first time—and thereby qualifying Suárez as yet another worthy contender for the elusive title of “father of international law.”

The Contribution of Hugo Grotius The figure who carried Suárez’s conception of the man-made ius gentium to the wider world was Hugo Grotius. We have encountered him in the ser vice of the Dutch East India Company, as an opponent of claims to sovereignty over the high seas. In the ensuing years, his promising career suffered an abrupt reversal. He found himself on the losing side in bitter theological debates, when supporters of more tolerant and moderate forms of Protestantism lost power within the Dutch Republic to partisans of the more rigidly Calvinist persuasion. Grotius’s principal political patron was put to death, and he into prison. He managed to escape from captivity by the alltoo-appropriate ruse of concealing himself in a crate of books. (A crate on

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display in the Rijksmuseum in Amsterdam is asserted to be the one that was employed, but there are rival containers for which the honor is claimed.) He fled to Paris, where he lived for most of the rest of his life. It was during this period in exile that he wrote the work for which he is chiefly remembered: On the Law of War and Peace, published in 1625 and dedicated to King Louis XIII (who was helpfully providing the impecunious sage with modest financial support). There were four further editions during Grotius’s lifetime, and another published immediately after his death. In later years, he acted as Sweden’s ambassador to France—although this occurred only after the death of his royal admirer, King Gustavus Adolphus. Grotius’s famous book was a sprawling affair, swarming with allusions to classical and biblical history, in the standard humanist style of the time (although by modern tastes, it can seem to be some kind of monstrous caricature of that style). Three major topics were treated. First came a general account of the nature and kinds of law. Included in this was a discussion of sovereignty, which has led to Grotius’s being regarded as an important figure in the history of political theory. The second portion of the book was an extended and detailed exposition of substantive natural law, covering such topics as the origin, nature, and content of property rights; punishment for wrongdoing; performance of contracts; and much besides. There may have been little here that was truly original, but Grotius’s exposition was entirely without precedent in its length and thoroughness. Medieval treatments of natural law had generally been extremely brief—little more than very basic statements of broad principle. It will be recalled that, in the entire Middle Ages, there had been no systematic treatment of the subject. Even Suárez had not attempted it. For this reason, Grotius’s book justly became the great founding text of the age of systematic jurisprudence in the seventeenth and eighteenth centuries. The third part of the book is the one that is of most interest to international lawyers. It was a substantive exposition of the law relating to war. This included not only a discussion of just-war principles but also a detailed consideration of questions relating to the conduct of war and to the making and interpreting of peace treaties. In terms of his overall treatment of international law, Grotius’s chief contribution was to expound the thesis that had been put earlier by Suárez, of a ius gentium that is man-made and distinct from natural law. His exposition, in fact, was very considerably inferior to that of Suárez in terms of clarity and

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detail. Only with difficulty can the many gems of Grotius’s thought be separated out from heavy silt of pretentious humanist scholarship. But Grotius at least provided a new label for the man-made law between states: the “voluntary (or volitional) law of nations” (ius gentium voluntarium). Despite the inferiority of his treatment of the subject as compared to Suárez (whose prior work he did not acknowledge), it was Grotius’s exposition that exerted by far the greater influence on later writers. The race, it has been acutely observed, is not always to the swiftest.

On Natural Law Grotius’s conception of natural law, like Suárez’s, was squarely in the line of rationalist thought from the Middle Ages. His definition of natural law as “a dictate of right reason” was virtually identical to that of Aquinas. He explicitly voiced a preference for a mathematical approach to the subject, with conclusions rigorously derived from axioms in the manner of Euclidean geometry. He clearly distinguished natural law from divine law, which consisted of the commands of God. Natural law, as a purely logical system, was stated to be entirely self-standing, owing nothing to God. In a famous statement in his prologue, Grotius went so far as to assert that, even if there were no God at all, natural law would still exist in its full and complete form. On this basis, Grotius is sometimes credited with achieving the “secularization” of natural law. This is woefully incorrect, since natural law had been a secular body of thought from its inception. The rationalist tradition of natural law in particular was thoroughly nonreligious in character. Long before Grotius wrote, Aquinas had expressly pointed out the powerlessness of God to alter the laws of logic. Suárez, too, had preceded Grotius on this point, expounding at length, in the Thomist vein, on the powerlessness of God himself to alter the principles of natural law.

On the Voluntary Law of Nations Following Suárez, Grotius sharply distinguished the voluntary law of nations from natural law, with the voluntary law governing “the mutual society of nations in relation to one another.” Only the terminology was new with Grotius, not the concept. Grotius agreed with Suárez that natural law

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and the voluntary law of nations spring from different sources. Natural law originates in the very nature of the world as such, particularly in the mathematical-like principles of deduction and inference that govern the world of reason. As Grotius put it, there are “definite reasons” for rules of natural law. Rules of the voluntary law of nations, in contrast, arise out of agreement between states and therefore derive their “obligatory force” from “the will of all nations, or of many nations.” As Grotius explained, by mutual consent it has become possible that certain laws should originate as between all states, or a great many states; and it is apparent that the laws thus originating had in view the advantage, not of particular states, but of the great society of states. And this what is called the law of nations. It is worth emphasizing that Grotius did not regard the voluntary law of nations as a type of customary law. The reason was that custom, according to Grotius, comprised unilateral action by states. Since unilateral acts by any one state cannot have the effect of imposing legal obligations onto other states, custom cannot amount to law. The voluntary law of nations, in contrast, arises from “mutual consent” between states and is legally binding for that reason. This meant, in turn, that Grotius agreed with Suárez in regarding the voluntary law of nations as essentially contractual in character. Grotius also joined Suárez in regarding the voluntary law of nations as not being wholly independent of natural law. They have different sources— the one rooted in reason and the other in agreement among states—but they operate in tandem in several respects. As Grotius put it (somewhat vaguely), the rights protected by the voluntary law of nations are “in some degree derived from the law of nature,” even though the voluntary law itself is a human contrivance. One way in which the two can work together is for the voluntary law to clarify natural law. Natural-law rights, as Grotius explained, can “acquire a kind of support” from the voluntary law, against such threats as “the uncertainties of conjecture.”  Another way in which the two bodies of law can work together is for the voluntary law of nations to modify the rigors of natural law. (On this point, too, Suárez was first in the field.) When the demands of natural law are greater than frail humans can be expected to observe with strictness—as

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they frequently are in the area of warfare—then the voluntary law of nations can step in to relieve humans from the strict application of natural law. It can achieve this by prescribing that some act that violates natural law will nonetheless be exempt from punishment by earthly authorities. Strictly speaking, the voluntary law of nations cannot actually alter the natural law in any way—that is, it cannot transform an act that is unlawful under natural law into one that is lawful. It can only hold back from inflicting a punishment. It is apparent, then, that Grotius (like Suárez) did not break entirely free of the medieval picture of the ius gentium as being connected to natural law. The principal significance of his voluntary law of nations did not lie in any assertion of complete independence of the two. Instead, it lay in Grotius’s insistence (echoing Suárez and Isidore) that the voluntary law of nations is wholly man-made and that it is therefore not a direct and ineluctable logical emanation from natural law. But this thesis, limited and cautious though it was, was of the highest importance. It proved to be the first step—though no more than that—toward severing the ius gentium entirely from natural law and relegating natural law to what was sometimes called the “court of conscience.” Grotius himself never went anywhere near so far as that. But his taking the first halting step in that direction was enough to enable the positivists of the nineteenth century to claim him as a forebear. Grotius aped Suárez in identifying the field of diplomatic relations as a key illustration of the voluntary law in action. Another important area was reprisals. It has been observed that the essence of reprisals, as the practice had developed in the Middle Ages, was the collective responsibility of citizens for wrongs committed by any one of them against foreign nationals. There were also cases in which the wrongful act was committed by a sovereign rather than a private party—most commonly, in the form of a refusal or failure to grant justice to a foreign claimant. Since taking reprisals against a sovereign was, in practice, difficult or impossible, the voluntary law allowed reprisals to be taken instead against the ruler’s subjects. Grotius admitted that this practice of taking action against surrogates of wrongdoers— rather than against the wrongdoers themselves—was not part of natural law, which did not allow innocent persons to suffer for the acts of guilty parties for which they bore no responsibility. But it was not actually contrary to natural law. Consequently, states were allowed to introduce the practice

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by way of “custom and tacit consent” in response to “the demands of usage and human needs.”  Grotius sometimes referred to rights conferred by the ius gentium as “secondary” rights, in contrast to primary rights, which are the gift of the law of nature. Grotius therefore followed Suárez (and ultimately Isidore) in holding a dualist conception of international law—seeing it as a sort of partnership between the voluntary law of nations and those portions of natural law that are relevant to interstate relations. For it must be remembered that Grotius— once again like Suárez—did not for a moment deny that natural law was applicable to kings, as well as to ordinary people. It can even be said that Grotius’s primary interest was in natural law rather than in the voluntary ius gentium. Far from paying close attention to contemporary state practice, Grotius carefully informed his readers that he had deliberately chosen to give no attention to current affairs. For concrete illustrations of points made, he resorted instead to classical and biblical writings. His principal self-appointed task, as explicitly stated in his treatise, was to systematize the natural-law component of international law. The man-made part, he stated, does not lend itself to systematization because it varies according to local conditions and is subject to the capricious free will of humans instead of the eternal and inexorable laws of logic. It was this general dualistic outlook—far more than any specific doctrines—that became the distinctive feature of what was to be called the “Grotian” approach to international law. No more than Suárez did Grotius proffer a single term—such as “international law”—to refer to both natural law and the voluntary ius gentium in combination. That step was soon to be taken, but not by Grotius.

On War In his treatment of the laws of war, Grotius was also hardly a trailblazer. Gentili, a generation earlier, had published his systematic exposition. Grotius’s approach differed in some respects from his predecessor, but not significantly. His principal contributions were two. One was that he applied the dualistic approach to his analysis of war, thereby discussing the various legal issues from the distinct standpoints of natural law and the voluntary law of nations. Suárez may have preceded Grotius in expounding the dualistic

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framework of international law, but it was Grotius who applied that framework in detail in the concrete context of warfare. His second major contribution was to identify what became the canonical just causes of war from the standpoint of natural law. The just causes of war according to natural law were identified by Grotius as being three in number. First was defense. It must be emphasized that this did not mean self-defense, in the sense of repelling an actual attack. It meant preemptive action to counteract an impending attack or serious threat of some kind. The second just cause was the obtaining of something that was owing by another state but was being withheld. An example would be a case in which part of a state’s territory was being occupied by a foreign power. Force could be used to recover it. This second category also encompassed a use of force to obtain compensation owing for a past wrong. The third just cause was punishment of another state for past misconduct. The heritage of medieval just-war doctrine is clear in all of this. Especially clear is that Grotius’s idea of just war, like its medieval predecessor, concerned the justice of resorting to offensive war, in the sense of entitling the just side to strike the first blow. Even the category of defensive war is offensive in this sense, since it envisages that the just side would mount a preemptive attack—that is, would strike the first blow—to ward off the threat that was impending. As a consequence, self-defense in the face of an actual, ongoing attack was not within any of the types of just war. Also outside the category of just war was another type of action that later lawyers would refer to as humanitarian intervention: the use of armed force to prevent a tyrannical ruler from oppressing his own subjects. This falls outside the category of punitive war because it is envisaged that the armed force will be directed not toward the chastisement of the wicked prince (much though he may deserve it), but rather toward relieving the suffering of the oppressed subjects. Grotius favored allowing the use of force for this noble purpose, while holding back from qualifying it as a war. Nevertheless, it may be regarded as, in substance, a sort of quasi-just war. Very different was the treatment of just war from the standpoint of the voluntary law of nations. In the eyes of the voluntary law of nations, there was no bar, even in principle, to a war’s being just on both sides. So there was no need to make use of Vitoria’s principle of ignorance. The criteria for a just war under the voluntary law were formal rather than substantive, with

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the principal requirement being a declaration of war. In such conficts, both belligerents are equally entitled, in principle, to exercise the rights of war (such as killing and capturing enemy soldiers). Concerning the conduct of war, the voluntary law of nations contained various modifications of natural law. For example, the voluntary law (but not the natural law) prohibited killing by use of poison in warfare. Another important modification concerned the capture of enemy property. Natural law placed two important limitations on this right: first, that only property belonging to actual wrongdoers could be taken; and second, that the maximum total amount of property that could be taken must not exceed the value of the damage done by the wrongdoer’s original injury. The voluntary law of nations relaxed both of these strictures. It allowed the capture of property from any national on the enemy side, without regard to personal wrongdoing. And it placed no ceiling on the amount of property that could be taken.

The Impact of Grotius If Grotius’s achievements appear, when viewed against the backdrop of history as a whole, fairly modest, many later writers judged otherwise. The German lawyer G. F. de Martens, writing in the late eighteenth century, hailed Grotius as the “father of . . . the law of nations, equally natural and positive.”  The twentieth-century American legal phi losopher Roscoe Pound credited him—rather generously—with founding international law “almost at one stroke.”  There may be exaggeration in these assessments—perhaps leavened with ignorance of the prior work of Suárez— but there is at least some truth in them, too. Grotius’s treatise became the leading text from which practically all treatments of international law took their departure. More than any specific doctrines, Grotius bequeathed to his successors a general outlook on the broad structure of international law. It was the dualist perspective, with its distinction between natural law and the voluntary law—that is, the laws of nature and of nations, respectively—that became the basis of what has been called the “Grotian tradition” in international law. Grotius had the remarkable posthumous fortune of being regarded as a major progenitor of both of these branches of international law, revered

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alike by later positivists and natural lawyers. His reputation only seemed to grow, even as the actual reading of his famous book fell increasingly out of fashion. The early twenty-first century saw him cited as an authority in a World Court judgment. This extraordinary fame might lead one to think of him as some kind of Galileo or Newton of international law. But he was nothing of the sort. His instincts were firmly in the past, in the rationalist tradition of natural law extending back to Aquinas. He would be horrified to be thought of—as he sometimes is—as a pioneer of later repudiations of natural law. But in this, too, there is some truth. For the distinction between natural law and the voluntary law did turn out to be an important step along the road to the positivism of the nineteenth century. Grotius would not have dreamed of going down that path. But he did erect a signpost that others chose to follow.

The Hobbesian Challenge A severe challenge to the international law vision of Suárez and Grotius came from a younger contemporary of those two: an English political theorist and general philosopher named Thomas Hobbes. Born in 1588, as the Spanish Armada neared British shores, Hobbes was a self-described “child of fear”—a sentiment that played a central role in his political thought. Hobbes is found on few people’s lists of international lawyers, but that is unjust, for he played an important part in the development of the subject. Hobbes began his career as a tutor to one of the great noble households of England, in which capacity he took his charges on the grand tour of Europe and became acquainted with intellectual circles in early seventeenth-century Paris. His early writing was on the nature of man, a subject to which he brought a strongly materialistic approach, duly earning him enemies in orthodox theological circles. With the outbreak of civil strife in his home country after 1640, he prudently departed to Paris, this time for an eleven-year stay. During this period, he served as tutor to the future King Charles II, then in exile after the defeat of the royalist forces in the English Civil War. Hobbes’s principal activity of the Paris period, for present purposes, was the writing of his best-known work, Leviathan, published in 1651, just prior to his return to his home country.

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In certain respects, Hobbes’s work represented a frontal attack on the natural-law tradition in general, including that of Grotius (even though Hobbes never troubled to deal with Grotius’s writing in any detail). But in other respects, that is not so. For Hobbes certainly did not question the existence of natural law as such. He did, however, put forward a radically unorthodox view of its contents. In addition, he departed from previously accepted wisdom by rejecting natural law’s important companion doctrine: the innate sociability of the human species. It has been observed that this belief had been closely connected to natural law throughout the Middle Ages—although it was, at the same time, conceptually distinct from it. Hobbes was the first major writer to effect a clean breach between the two. In place of the Aristotelian principle of innate human sociability, Hobbes substituted a picture of the human race that was derived from a theory of individual human psychology in which the rational pursuit of self-interest in general, and of security in particular, was the central value. Where traditional natural-law thought regarded the state of nature as Edenic, without conflict, Hobbes saw it as a veritable cauldron of competitiveness and turmoil. He regarded human life, in short, as fundamentally asocial, with each individual left to survive as best he or she was able in the face of constant threats to that survival and of constant competition for key resources. Life in this state of nature was all too likely to be, in Hobbes’s notorious phrase, “solitary, poor, nasty, brutish, and short.” Some have regarded this as a cynical and hopelessly reductionist image of human nature—with Hobbes as an all too worthy successor of Machiavelli. Others have hailed his writing as a welcome breath of realism and as the birth of a new political philosophy rooted in the rights of individuals. Fortunately, it is not necessary, for present purposes, to take sides in this still lively debate. It suffices to note the drastic change that Hobbes’s views entailed in natural-law thought—and, indirectly, the impact on international legal ideas that flowed from it. Hobbes’s version of natural law was, in comparison with that of Aquinas and his followers (including Grotius), ruthlessly stripped down. Although he set out no fewer than nineteen laws of nature, just two of them were of universal and fundamental importance. One of these was a right, and the other a duty. The fundamental right was personal security, or survival. The fundamental duty was the due performance of agreements.

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In itself, seeing the right of survival, or security, as a primary natural-law right was nothing new. Aquinas had said as much. The key difference was that, for Aquinas, self-preservation had been only one of three core naturallaw principles (the other two being the nurturing of the young and, crucially, the quest for harmonious social life). For Hobbes, security was, in effect, the sole basic natural right. It authorized each individual person to take whatever steps are necessary to preserve his existence in a turbulent world. At the root of the Hobbesian “war of all against all” is the regrettable fact that opinions of people will differ as to how far they are entitled to go in exercising this right, with the melancholy result that the various individual rights of survival will clash with one another. Hobbes was, however, able to offer a means of escape from this living hell. This was by harnessing the one and only fundamental duty of natural law: the obligation to adhere to contracts that are freely entered into. Pacta sunt servanda was the standard Latin formulation of this principle: “Pacts must be observed.” The state of nature may have provided nothing that could be said to resemble an ordered human society, but it was within the power of humans to create such a society for themselves, by means of contracts. The way that this could come about, Hobbes posited, was for various individuals to enter into a contract with one another, pursuant to which they would all cede or transfer their natural-law right of self-rule to some third party— who would thereby become the sovereign of a politically ordered society. This sovereign would then have the task of providing for the collective survival of the contractors by making use of the pool of rights that they had conferred onto him. The implications of Hobbes’s ideas for international law were many. One of them—and the one that has attracted the most attention—is that the political sovereignty created by this process was effectively absolute (or, at a minimum, very nearly so). This was because the contracting parties have given up the overwhelming share of their natural-law rights to the sovereign in exchange for protection. But the present interest is in the implications of Hobbes’s theory for international law. These were two. The first was it now became possible to think, more clearly than before, of a state as an entity that was quite distinct from its members—and, more importantly, as an entity with rights, duties, and interests of its own, which are different from, and superior to, those of its members. “A city,” declared

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Hobbes, “is one person, whose will, by the compact of many men, is to be received for the will of them all.” Where the Aristotelian city-state and the Italian communes had been seen as associations between citizens, the Hobbesian state was regarded as a sovereign above its subjects, and distinct from them. For this reason, it was Hobbes, far more than Bodin, who acted as the herald angel of modern conceptions of state sovereignty. It is immediately apparent that this gathering of individuals into manmade states does not actually solve the primeval problem of security. Instead, it merely ratchets it upward (so to speak), onto a collective level. In place of individuals struggling against one another in a mutual state of nature, we now have collectivities (states) locked in that same struggle. This brings us to the second major implication for international law of the Hobbesian system. That is, that the sole legal tie between states is provided by natural law. Here, it must be remembered that the Hobbesian state of nature—in which the states of the world lived vis-à-vis one another—was far from harmonious. Its core feature was conflict. Strictly speaking, despite the use of some memorably lurid language, Hobbes did not really see humans as relentlessly bloodthirsty monsters. His state of nature was slightly more abstract than that. It was a condition in which the basic rights of persons (i.e., of states) overlap worryingly, without any means for drawing a sharp line to determine where one party’s right of survival begins and another’s ends. Drawing such sharp lines is the function of a sovereign—but the international arena possesses no sovereign. Consequently, there is an omnipresent potential for conflict, even when actual material warfare is absent. It was this omnipresent potential that Hobbes regarded as a state of continuous war. In principle, there would seem to be no reason that Hobbes’s contractual solution could not be applied at the collective level of state-to-state relations as well as to the individual level. On this view, smaller states would band together into larger ones, and then larger ones into yet larger ones until, eventually, the whole world was comprised in a single sovereign state. Hobbes did not, however, envisage that this would occur. It was still possible, though, for at least a semblance of international order to be brought about by deft employment of the basic natural-law duty to adhere to contracts. States could enter into treaties with one another—treaties that they would then be under a natural-law duty to fulfill. In this vision, international order (of a sort) emerges from below, through the mechanism of treaty making, rather than

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from above, either from the precepts of a rich body of natural law or (as the case may be) from the commands of a global sovereign. On the whole, it is fair to say that the Hobbesian vision of international order was indelibly marked by two crucial features. First, it was a world that was intrinsically conflictual rather than harmonious. Peaceful and orderly relations between states were not impossible, but they had to be painstakingly and consciously constructed by purely human initiative, from below. There might be islands of order, but they are protrusions from an ambient ocean of conflict, whether actual or potential. The second crucial feature of the Hobbesian international world was that any orderliness must be entirely treaty-based (although treaties did not necessarily have to be in the form of written documents, with fancy lead seals). There was no detailed body of substantive natural-law principles to guide the statesmen of the world.

The “Grotians” versus the “Naturalists” In the century or so after Grotius and Hobbes, the followers of the two formed rival schools in international law. The followers of Hobbes were known, somewhat confusingly, as the “naturalists.” Their signature doctrine was the belief that natural law is the sole body of law that is binding between states. Their opponents should most logically be labeled “dualists,” since their defining belief was in the existence of two distinct bodies of law between states: natural law, and voluntary law or the ius gentium (depending on the preferred choice of label). The historical process, however, is often weak on logic, with the result that this second school of writers have been more commonly known as “Grotians” or alternatively as “eclectics.”

The Grotians The Grotian, or dualist, school followed their eponymous forebear in holding international law to be a confederation between the two distinct bodies of law: the law of nature and the law of nations (i.e., the voluntary law of nations). The law of nature was not created, but found—or rather, deduced from first principles. Its content was determined by the nature of the universe, and man’s ability to discern it was given by reason. It contained no

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element of free will. The law of nations, in contrast, was a man-made artifice, a product of human initiative and free will, with its contents determined by circumstances and context as perceived by the humans who crafted it. The law of nature was binding on all states in the world, without exception. The law of nations bound only those who had participated in its creation or who had consented to observe it. An early figure in the dualist or Grotian tradition was the English judge and legal scholar Richard Zouche (or Zachaeus, to Latin devotees), who was a younger contemporary of Grotius. Zouche became the holder of Gentili’s old professorship of civil law at Oxford in 1620, and also a member of the British Parliament, as well as an admiralty judge. His major work was entitled An Exposition of Fecial Law and Procedure, or of Law between Nations, and Questions Concerning the Same, published in 1650. (By “fecial law” was meant the fetial law of ancient Rome dealing with declarations of war.) He also wrote on diplomatic immunity and on admiralty and ecclesiastical law. One of Zouche’s contributions to international law was the invention of an early version of what became the modern name for the subject (albeit in the Latin tongue). In place of the received expression “ius gentium,” he suggested substituting “ius inter gentes.” That is, he favored speaking of a “law between nations” instead of a “law of nations.” The reason behind this proposed change was to make it clear that the law governing relations between states was importantly different from the original Roman-law ius gentium, which Zouche correctly explained to be merely “the common element in the law” in transactions between individuals. This newly minted expression marks the arrival—if only in Latin—of the term “international law.” It would be rendered into English in the late eighteenth century. In his treatment of this ius inter gentes, Zouche followed Grotius’s dualistic lead. Part of the law between nations comprises natural law, which consists of conclusions “proceeding from the first principles of nature.” The law of nations, in contrast, is a human construction, arising out of agreement. It is of two kinds. One is a body of law of universal application, arising out of “general agreement” between states. The other comprises particular agreements between specific states (most obviously in the form of treaties). The impact of Grotius was similarly evident in the writing of the German scholar Samuel Rachel. The son of a Lutheran minister, Rachel served as a

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diplomat and state counselor and also held a professorship in the law of nature and nations at the University of Kiel in 1665—only the second such academic chair to be created (the first one, as noted later, had been established a few years earlier at Heidelberg). His principal work, Dissertations on the Law of Nature and of Nations, was published in 1676. Rachel was emphatic about the distinction between the law of nature and the law of nations. The two differ, he maintained, “by the whole heaven.” He expressly lauded Grotius as the first to perceive the distinction (being apparently ignorant of Suárez’s priority). Sometimes, he pointed out, a rule of the law of nations, such as a treaty obligation, will simply reiterate or confirm a rule of natural law. Even then, though, it must be appreciated that two distinct kinds of legal obligation exist—one under natural law and the other under “the voluntary consent of nations.” The human-created law of nations was needed, Rachel explained, to deal with a key shortcoming of the natural law: its failure to provide solutions for “the greater part of the businesses which free Nations enter on with one another.” To fill that gap, the states themselves, “by their own discretion,” created the voluntary law of nations. This law was defined by Rachel as “a law developed by the consent or agreement, either expressly or tacitly given, of many free nations, whereby for the sake of utility they are mutually bound to one another.” As such, it was, in his words, “a species of Arbitrary Law.” Subjects dealt with by this branch of law included (as they did for Grotius) diplomatic relations and the conduct of war. In one interesting respect, Rachel was a precursor of modern international law: he recommended the establishment of an international tribunal for the settlement of disputes between states. Like Suárez and Grotius, Rachel held natural law to be more fundamental than the voluntary law. For it was only through the force of natural law that the voluntary law could be held to be binding. Most particularly, the legally binding character of treaties was crucially dependent on the natural-law principle of pacta sunt servanda. Natural law was therefore, in Rachel’s words, the “remote cause” of a treaty obligation, with the treaty itself then being the proximate cause of the specific obligations spelled out in it. Rachel explicitly turned his attention, as Grotius had not, to the question of whether this body of law ought more properly to be described as private or public. This depended, he concluded, on whether one was concerned with the content of the law or with the method of its creation. In terms of content

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or “the effect . . . actually produced” by the law, it could be called public because it dealt with “the public affairs” of the nations of the world. Considered from the standpoint of how the law was made, however, it is best regarded as private, since it is the same process, in essence, by which private individuals enter into agreements with one another—and thereby create legal rights and duties by their own initiative—in their ordinary affairs. A variant form of the Grotian dualistic position was presented by the German writer Johann Wolfgang Weber—or Textor as he is more commonly known, from the Latin translation of his surname (“weaver”). He was from a distinguished family in the small German state of Neuenstein, where he served as director of the Chancellery. In 1666–90, he taught law, first as professor of Roman law at the University of Altdorf, and then as professor of general jurisprudence at the University of Heidelberg (the first person to hold that post). He then served as an elected official in Frankfurt until his death. He wrote on many subjects, but his principal contribution to international law was his Synopsis of the Law of Nations, published in 1680 during his period at Heidelberg. Textor followed Grotius in distinguishing natural law from the law of nations. Natural law “issues direct from Natural Reason,” while the law of nations “issues through the medium of international usage.” The law of nations, he asserted, is “strictly Customary.” As such, it is changeable. Textor also followed Grotius in carefully insisting that this body of law is not based on bare usage alone, that is, on a pattern of unilateral acts by states. It is necessary, in addition, that the practice or usage of states be founded upon “a mutually obligatory consent.”

The Naturalists In conscious contrast to the Grotians were the naturalists. The essence of the naturalist position was that the law of nature is the only general law governing relations between sovereign states. This core tenet was succinctly stated by Hobbes: As for the law of nations, it is the same [as] the law of nature. For that which is the law of nature between man and man, before the constitution of the commonwealth, is the law of nations between sovereign and sovereign, after.

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Two notes of caution about the naturalist school are necessary at the outset. The first is that the naturalists did not actually hold natural law to be the only law between states. What they held was that natural law was the only law of general or universal application between states. They accepted that natural law could be supplemented by side arrangements between pairs or groups of states on an ad hoc basis. But treaties were generally seen by naturalist writers as being relatively unimportant in the grand scheme of things. The second cautionary note about the naturalists is that, while they all shared (by definition) the core belief that natural law is the only general body of law between states, there was considerable room for variation as to what the nature and content of natural law actually was. And many of the naturalist writers—in fact, all of the best-known ones—did not share Hobbes’s ruthlessly stripped-down, asocial view of natural law. They largely adhered instead to the more conventional tradition of natural law—most notably, accepting the venerable Aristotelian thesis of the natural sociability of humans. An example of a naturalist writer who did share Hobbes’s own opinions about natural law was the Dutch philosopher Baruch (or Benedict) Spinoza. Spinoza was the very archetype of writers in the rationalist tradition of natural law. Where some writers, such as Grotius, had advanced mathematical reasoning as their ideal, Spinoza came the closest of all to achieving it. His famous treatise on Ethics (published posthumously in 1677) was written in a severely geometrical style worthy of Euclid. Spinoza was not a lawyer, but he turned his attention to political philosophy in A Treatise on Religion and Politics (1670), followed by A Treatise on Politics, published posthumously in 1677. These writings were in a strongly Hobbesian vein. He followed Hobbes in holding that only natural law governed relations between states. “[S]ince . . . the right of the sovereign is simply the right of nature itself,” asserted Spinoza, “two states are in the same relation to one another as two men in the condition of nature.” He flatly pronounced states to be “enemies by nature.” If anything, he was even more radical than Hobbes in that he denied the existence of an absolute duty to observe treaties. Once the motive for concluding an agreement disappears—that is, once there ceases to be any advantage in adhering to a treaty—a state has a “full right,” he maintained, to break it. The reason is that a ruler owes a higher duty to his own subjects to protect their “safety and advantage” than he does to fellow sovereigns to adhere to agreements.

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Spinoza, however, was exceptional in his agreement with Hobbes’s rejection of natural sociability. Nor were his writings influential on later writers on international law. The true leading figure in the naturalist tradition was neither Hobbes nor Spinoza but the German historian and lawyer Samuel Pufendorf. He was from Saxony and, like his contemporary Rachel, was the son of a Lutheran minister. Initially destined for the ministry himself, he studied theology at the University of Leipzig but soon abandoned it for law. He read widely, including the works of both Grotius and Hobbes. His first major employment was in Copenhagen as a tutor to the family of the Swedish ambassador. Difficult political relations between Sweden and Denmark led to his being imprisoned for some eight months (with the rest of the ambassadorial staff )—and thereby provided with valuable time for intellectual meditation. It was time well spent, its fruit being a natural-law treatise, Elements of Universal Jurisprudence, published in 1660. This led to his being appointed by the book’s dedicatee, Karl Ludwig (the Elector of the Rhenish Palatinate), to a professorship of international law at the University of Heidelberg in that same year—said to be the first such academic chair to be created. Interestingly, the post was in the faculty of philosophy rather than of law. The formal title of the professorship—of the “Law of nature and nations”—was somewhat ironic, with its clear echo of the Grotian dualistic thesis. Pufendorf’s tenure in Heidelberg, however, was not long. He went on to hold a similarly designated chair at the University of Lund in Sweden in 1670–77. It was during that period (in 1672) that he published his principal work, The Law of Nature and Nations—one of history’s foremost masterpieces of natural law. Five years later, he went on to become historiographer royal for the Swedish government. Pufendorf revealed his allegiance to the naturalist school in his insistence—notwithstanding the title of his book—that there was no such thing as “a peculiar and positive law of nations, distinct from natural law.” The old Roman-law conception of ius gentium, he explained correctly, was not a law between states—that is, was not truly international law at all—but merely a civil law between individuals. Nor, in his opinion, could the customary practices of states have the effect of creating rules of law. Therefore, an analysis of state practice could reveal nothing meaningful about international law. “[T]hey are assuredly wasting their efforts who collect what the nations in common with one another habitually practice,” he pronounced.

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Thoroughly in the naturalist spirit, Pufendorf insisted strongly on the absolute independence of states from one another. This arose directly, he explained, out of the basic principle of “the natural equality of men.” No sovereign had any right to lay down rules for any another sovereign. The result, in his opinion, is that each state can undertake whatever “acts . . . it has judged to be expedient to its own end.” We should be careful not to read too much into this contention and, in particular, to appreciate that Pufendorf was emphasizing the mutual independence of states from one another. He did not contend that states were bound by no laws at all, but merely that natural law was the sole source of any such constraint, and not obligations owed to other states. Pufendorf should therefore be understood to be expounding what would now be called a duty of nonintervention on the part of states, rather than a doctrinaire theory of absolute state sovereignty in the manner of the nineteenth-century positivists. The writing of Pufendorf aptly illustrates the marginal significance attached by the naturalists to treaties. He compared them to contracts in civil law. Just as contracts are private obligations between citizens without being part of the general law of the state itself, so are individual treaties merely private arrangements between states, and hence not component parts of a general law of nations. Some treaties, he conceded, replicated provisions of natural law and, on that basis, could perhaps be said to be something more than mere private arrangements. But he had an especially low opinion of treaties of this sort, on the ground that they risked detracting from natural law. “[C]ivilized men,” he grumbled, “should almost be ashamed to be a party to a pact the articles of which say no more than they may not clearly and directly violate the law of nature, as if without such a pact a man would not be sufficiently mindful of his duty.” Even less value was accorded by Pufendorf to customary practices of states as a possible source of law. He held, for example, that the various practices devised by states to mitigate the harshness of war do not actually have the force of law. The true position, he contended, is that any act that is permitted in warfare by natural law is, ipso facto, lawful, even if a general practice has grown up of refraining from certain practices. The commission of the act is therefore not a breach of a binding obligation—although, he conceded, it might give rise to an accusation of barbarism. “[A]ny one can free himself from . . . obligations [that] rest only upon a tacit agreement,” he

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maintained, “if he expressly declares that he is not willing to be bound by them, and that he will not complain should others also not observe them towards him.” A prominent follower of Pufendorf in the next generation was a German scholar and office-holder named Samuel Cocceji. Natural law ran strongly in his family, as his father held professorships in the subject at the Universities of Heidelberg and Frankfurt-upon-Oder, where the son undertook his studies (and later taught). Cocceji held a number of governmental posts in the state of Prussia, including a judgeship on the Supreme Court of Berlin, and also undertook diplomatic missions. He became renowned for ser vices in the area of judicial reform, first in East Prussia and later in Silesia (newly acquired by Prussia in 1740 as a result of a memorable act of aggression against Austria), and also served as minister of war and of justice. In the course of this busy life, he somehow found time to pen a major treatise, Elementa jurispurdentiae naturalis et romanae (Elements of Natural and Roman Jurisprudence), which was published in 1740. It contained harsh criticisms of Grotius’s notion of voluntary law, which was condemned as a “monstrous idea.” There could not be such a law—or at least not a universal law—contended Cocceji, because it was simply not possible for the entire world to arrive at the necessary agreement. The most influential figure in the naturalist tradition in the eighteenth century was the Swiss writer Jean-Jacques Burlamaqui. Hailing from a prominent and politically active Genevan family, he served as a professor of natural law at the Academy of Geneva, attracting students from various parts of Europe. His Principles of Natural and Politic Law (1747) drew heavily on Pufendorf’s work, but was more widely disseminated. It was published in some sixty editions in seven languages, serving as a standard textbook at Cambridge University in England, as well as at various American colleges. Following Pufendorf, he pronounced the law of nations to be “nothing, but the law of nature itself, not applied to men considered simply as such; but to nations, states, or their chiefs, in the relations they have together.” Like Pufendorf, he expressly rejected Grotius’s claim of the existence of a second, man-made law of nations. Of like view was the English natural-law scholar Thomas Rutherforth, a professor of divinity at Cambridge University. His Institutes of Natural Law was published in two volumes in 1754–56. “[T]he law of nations,” he stated,

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“is positive [i.e., man-made] only in the manner of applying it, and is natural as to its subject matter: it is the law of nature applied by positive consent to the artificial persons of civil societies.” A “constant and uninterrupted practice” of states cannot become legally mandatory by its mere existence. Only a command by a sovereign could make it so—and there is no sovereign in international affairs. The conceptual line between the Grotians and the naturalists was, in sum, of the utmost sharpness—and was clearly perceived to be so by contemporaries. But it was not actually the most important division among international lawyers in the century and a half that followed Grotius. Rival approaches would emerge within the Grotian camp that would prove, in the longer run, more important for the evolution of international law.

chapter five

Of Spiders and Bees

rancis Bacon, the English lawyer, philosopher, and essayist, had a delightful way with words (even if he did not pen the plays of Shakespeare). Writing in 1620, he illustrated three contrasting ways of approaching intellectual challenges by invoking the rival methods of the spider, the ant, and the bee. The spider represented speculative thought, in which a writer spins out ideas from within his own mind, in the manner of a spider spinning out silk from its own glands. The ant represented mere mechanical conduct, the mindless piling up of facts without any theoretical guidance, like the ants piling up food for the winter. In between—and much the best of the three— was the way of the bee, which involved gathering in material from the outside world, but then transforming it qualitatively into something more useful. This charming analogy is a surprisingly useful guide to international legal thought in the centuries following Grotius. The spiders were the natural lawyers of the rationalist tradition. International law, to them, was largely an intellectual challenge, met by the hypothetico-deductive methods of the mathematician, and with logical consistency as the principal goal. Writers of this arachnid persuasion will here be labeled as rationalists. The bees were lawyers who sought to base international law more on the actual practice of states—more specifically, to use state practice, instead of basic axioms, as the basis for their speculation on the content of the law. This group will be here referred to as pragmatists. This distinction between rationalists and pragmatists is the most useful categorization of lawyers in the eighteenth century—more useful, as will be seen, than the division between the naturalists and the Grotians, which seemed more obvious at the time.

F

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It should be added that international law would also have its ants—those who held international law to consist of state practice itself, unleavened by speculation. But they would not achieve prominence until the nineteenth century (under the more dignified label of positivists).

Rationalists and Pragmatists It has been observed that international lawyers saw themselves, in the late seventeenth and eighteenth centuries, as being divided into the two contending schools of the Grotians and the naturalists. Between them, the dividing line was drawn with surgical precision. The one group held international law to comprise a union between two bodies of law (natural law plus the voluntary law of nations), while the other held it to consist only of one (natural law alone). As clear as this distinction was, however, another division was more important—though less apparent to the naked eye. It was less apparent because there was no clear chasm separating the one group from the other, but instead a continuum along which the writers on international law ranged. For lack of any accepted label (as usual), this continuum will simply be termed the international-law spectrum. This spectrum is best described by taking note of its opposing end points. These could be characterized in a couple of different ways. One is in terms of rival strategies of order: a top-down strategy, contrasted with a bottomup one. A top-down strategy sees rules as being dictated from, as it were, some “outside”—and superior—source. In the case of international law, that outside source was not a global sovereign, but instead was the law of nature. In the rationalist tradition of natural law, these rules are best seen as being transcendental in nature, because they are based on logical conclusions objectively arrived at from initial axioms, in the hypotheticodeductive style of mathematics. As in mathematics, there is no component of human free will. Humans are welcome to comprehend the system, as best their fallible sense of reason will allow. But they are not free to change it. In this sense, then, a pure strategy of order from above may be described as authoritarian—not in the sense that enforcement of it is oppressive, but rather in the sense that there is an absence of human input into its content.

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At the opposite end of the spectrum is the bottom-up, or emergent, strategy of order. Here, rules are seen as products of human free will. The precise kind of order could be highly variable, depending on prevailing political, social, military, and economic conditions. Order might be imposed by a single imperial power—though one should probably withhold the label “international law” from such a system (such as the imperial Chinese one). Or it might be arrived at by general consensus or, perhaps, in the style of a parliament, by a majority vote, or alternatively by multilateral treaty making. In the present period, the strategy of order from below took two principal forms: networks of bilateral treaties and the customary practices of states. So long as there is widespread (or at least relatively widespread) participation in the making of the rules, this strategy of world order could be described, broadly, as participatory or democratic in character, in contrast to the authoritarian nature of the top-down, or rationalist, strategy. There is an alternate way of characterizing the contrast between these extreme ends of the international-law spectrum. At the one end, the sole governing law is the law of nature. At the other end, the sole governing law is the law of nations (i.e., the voluntary law of nations), as evidenced by state practice. Between the two extremes is a smooth continuum, with literally every possible proportionate blending (or gradation) in between. In the language of Baconian zoology (and oversimplifying a bit), we could say that the natural-law extremity is the realm of the spiders, and the positive-law extremity the realm of the ants—with everything in between belonging to the bees. One final preliminary observation is in order regarding this internationallaw spectrum: that floating over it, like a roving ghost, is the question of the natural sociability of humankind. That critical proposition could be accepted or rejected at any and every point along the entire spectrum, but with readily foreseeable consequences. Consider the extreme natural-law point, for an illustration. There we find Hobbes, who rejected natural sociability, but also Pufendorf, who accepted it. That made for a very large difference in the content of natural law that they advocated, while still leaving both of them in the naturalist camp. Consider also the extreme voluntary-law point. Someone who accepted the natural-sociability thesis would expect international society to be broadly harmonious, with law emerging by some kind of consensus procedure and

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(at least for the most part) voluntarily adhered to. A person who rejected that thesis would have a very different worldview. He would expect it to be extremely difficult (and perhaps even impossible) to make laws in the first place, because agreement among the states would be hard to achieve. And such a person would expect enforcement of laws to pose a serious problem, too, since states would tend to breach rules whenever they saw their own interests threatened. The naturalist and Grotian schools can readily be placed along the international-law spectrum. Take the naturalists first. They can be said simply (and by definition) to congregate at one extremity: the natural-law end. The Grotians, in contrast, were spread across the entire spectrum, with the sole exceptions of the two end points. All of the Grotians believed (here too, by definition) in the existence of the two kinds of law, but with much room left for variation in the proportion of each that went into the final product. The natural-law ingredient might be very great, and the voluntary part very small, or vice versa. Or the mix could be somewhere near even. Indeed, it could even, in principle, be precisely half and half. The dominance of natural law in this period is immediately evident from the key fact that the extreme natural-law end point of the spectrum did have its supporters (i.e., the naturalist school, by definition). The extreme voluntarylaw end point, however, was (for the present) largely or entirely vacant. That would change, but not until well into the nineteenth century. For the present, we will briefly survey the spectrum, looking first at the rationalist part, then at the pragmatists, and then at a key figure (Emmerich de Vattel) who was perched very near the center.

The Rationalists The rationalists, it has been noted, were those whose position on the international-law spectrum was in the region where greater weight was accorded to natural law and lesser weight to state practice. Within this group was the naturalist school. They were the purists, occupying the extreme end point, that is, accepting only natural law as the general governing law between states and rejecting the voluntary law altogether. Foremost among them, as noted earlier, was Pufendorf. His acceptance of the Aristotelian thesis of natural sociability of humans enabled him to build up one of the

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most impressive of the grand systems of natural law—including rules on relations between states, but by no means limited to that. Among the Grotians, some were in the far reaches of the rationalist end of the international-law spectrum, even if they were not quite at the extreme point of the naturalist school. Foremost among these was another German writer, Christian Wolff, in the early and mid-eighteenth century. Although little remembered in most circles today, he was the towering intellectual figure in the Germany of his era. He was from Breslau in Silesia (present-day Wroclaw in Poland) and studied (like Pufendorf) at the University of Leipzig. Appropriately for a leading figure of the rationalist persuasion, his original field of study was mathematics, with his dissertation at Leipzig on the subject of the application of mathematical methods to ethics. He went on to a professorship in mathematics at the University of Halle. Trouble came, however, as a result of his rectoral address in 1721, “On the Practical Philosophy of the Chinese.” That might seem an innocuous enough topic. But Wolff ’s assertion that sound moral reasoning did not require belief in God or reliance on revelation earned him the hostility of conservative theologians. He was no radical, being a defender of slavery and of torture in judicial proceedings. But in 1723, he was dismissed from his post and given forty-eight hours to leave Prussia. He taught at the University of Marburg until allowed, by Prussian King Frederick II, to return to Halle in 1740—to a hero’s welcome. He went on to become vice-chancellor of Halle and a baron of the Holy Roman Empire, as well as the foremost intellectual of the German world. Wolff was the very prince of pedants. As a mathematician, he brought the study of the calculus into German university teaching. He became an important figure, too, in the history of psychology—and was even responsible for bringing that word into general usage. He brought the hypotheticodeductive mode of thought to bear on the subject of astronomy, too, with intriguing results. Arguing from a fundamental principle of nihil frustra (“nothing happens to no purpose”), he concluded that the moon, other planets, and even comets were populated by plants, animals, and humans. He even went so far as to calculate the bodily size of the inhabitants of Jupiter. They must have larger eyes than their terrestrial counterparts, he wisely surmised, given that the sunlight reaching them would be less intense. Let it never be said that the patient application of reason does not broaden one’s horizons.

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It was in his final years at Halle that Wolff toiled on a great summa of natural law that, in terms of bulk, left even Grotius and Pufendorf far behind. If Gustavus Adolphus had taken Wolff instead of Grotius as his nighttime reading choice, he would have needed a very capacious bed. Published in 1740–49, Wolff ’s exposition weighed in at nine very heft y volumes. Never had an academic spider woven so marvelous a conceptual web. With his excruciatingly thorough application of the hypothetico-deductive method, Wolff could be called the last of the medieval scholastics. Indeed, he had received a Catholic education in his youth (although he was a Lutheran by faith) and had a strong sympathy for the grand unitary outlook of the Middle Ages. He candidly admitted a great intellectual debt to Aquinas. The final volume of the grand masterpiece was devoted to the subject of international law. This was published in 1749, with the apposite title of The Law of Nations Treated According to a Scientific Method. Like Grotius, Wolff resolutely excluded current events from consideration. Unlike Grotius, though, he eschewed the humanist adornments of classical and biblical history in favor of a straightforward exposition and application of reason. His work therefore has a directness that is all too lacking in Grotius. Wolff was a Grotian, rather than a naturalist, in that he accepted the existence of a man-made law of nations in addition to the law of nature. This allegiance to the dualistic tradition of Grotius is immediately evident from the subtitle of the book: “In Which the Natural Law of Nations Is Carefully Distinguished from That Which Is Voluntary, Stipulative and Customary.” But if he was a Grotian, then he was one who perched very near to the extreme naturalist end of the international-law spectrum. Fundamental to Wolff ’s rationalistic system was the core principle of the quest for “perfection” by states. This required rulers to work diligently to develop the various capacities of their states to the greatest extent possible. This duty that states owed to themselves was primary. After that, and secondarily, came duties owed to other states. Although the subtitle of Wolff ’s opus identified four kinds of law, he readily acknowledged the fundamental Grotian distinction between natural law and man-made law. Natural law was what Wolff called the “necessary law of nations.” More strictly, it was the subportion of natural law that was applicable to the specific subject of interstate relations. It was “necessary” in a logical sense, in that it was deducible from the axioms of natural law in the

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manner of a geometric demonstration. Wolff also maintained, though somewhat vaguely, that the rules of natural law, when applied to the specialist field of interstate relations, underwent a modification and took on “a certain new form.” The part of law that arose from human free will comprised two of Wolff ’s categories of law: stipulative and customary. This was the law made from below, by the free consent of the states themselves, for their own perceived benefit. This consent took either of two forms: express consent in the case of the stipulative law (i.e., treaty law) and tacit consent in the case of the customary law. Treaty law and customary law were therefore seen by Wolff as being, so to speak, two sides of the same man-made coin. Both were contractual in character, meaning that they are binding only on parties to the arrangement in question. Consequently, they do not qualify as universal international law, as the necessary law of nations does. Wolff had little regard for these two types of law. Like Pufendorf, he held them to be, strictly speaking, not part of the general law of nations at all, any more than private contracts are part of the civil law of states. Their study therefore belongs to “the history of this or that nation” rather than to the general “science of the law of nations.” Moreover, if a treaty or customary arrangement were found to be contrary to natural law, then it would thereby cease to be legally binding, even on the parties to it. The fourth and final type of law identified by Wolff—to which he gave the woefully unfortunate label of “voluntary” law—was a sort of hybrid between natural law and positive (or man-made) law. Strictly speaking, it was manmade. But it was not a product of the free will of humans, as treaty law and customary law were. Instead, it arose from what Wolff called the “presumed” consent of nations. Th is “presumed” consent, however, must be understood to be the conclusively presumed consent of all nations, without exception. In other words, states had no choice but to accept and observe this “voluntary” law. The Wolffian voluntary law was a sort of manservant to natural law. It amounted, in effect, to a resuscitation of the medieval substitution theory of the ius gentium—a key indicator of Wolff ’s scholastic temperament. Natural law was stated to be “a fi xed and immovable foundation” of the voluntary law. The task of the voluntary law was to implement or apply natural law to the practical circumstances of everyday international relations. The only

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reason that the voluntary law is needed at all, Wolff stated, is because of “the perverse customs of nations.” Here, the echo of the medieval substitution theory is palpable. The voluntary law was seen as essentially a compromised form of natural law—with the compromises made necessary by the many imperfections of human life. Ideally, natural law would simply be applied in its pure form to the relations between states. Enlightened nations will therefore make use of the voluntary law “only unwillingly,” when circumstances do not permit the application of the necessary law. The voluntary law, it is true, was not seen as fi xed or immutable in the manner of natural law (i.e., of the necessary law of nations). It changes according to prevailing earthly circumstances and consequently is man-made in the immediate sense. But the principles that guide it—those of natural law—are fi xed and immutable. So closely connected, in fact, was this voluntary law to the necessary law of nations that Wolff readily conceded that he had no great quarrel with persons who regarded them as substantially the same. Wolff ’s voluntary law, then, had the interesting properties of being both man-made in its immediate origin and universal in its application. This made for a somewhat awkward mix. Judging from the man-made element, it would appear that the voluntary law ought to be—as its very name implies— contractual in character, as it was for Suárez and Grotius. But no. It was not open to free negotiation and horse trading in the manner of a contract or a treaty. It was too closely harnessed to natural law to allow for that. So the voluntary law was not really contractual in nature in any significant sense. But nor was it quite like natural law, since it was man-made (at least in proximate terms) and alterable over time. It was therefore a sort of conceptual amphibian—placed neatly between man-made customary law on the one hand and natural law on the other, while being distinct from both. In his discussion, Wolff gave a second—and instructively different— explanation of the voluntary law. This was in terms of what he called a “supreme state” (civitas maxima), which was a kind of great global republic whose “citizens” were the various nations. This amounted to a direct application to states of the Aristotelian concept of natural sociability. “Nature herself,” in Wolff ’s words, “has united all nations into a supreme state” for the same purposes for which individuals had originally formed states: for security and mutual protection. This supreme state is formed by “quasi-agreement”

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of the individual states that comprise it. States that do not wish to belong to it are to be regarded as immature members of global society who, in the manner of children, fail to see where their own interests lie. Consequently, they can be compelled, like children, to do what is in their true best interest—to join the world state. The voluntary law of nations, Wolff went on to explain, may be thought of as the civil law, or legislation, of this supreme state. As such, the voluntary law must be regarded as very distinctly legislative in character, and not contractual—meaning that all states were bound by it, without exception. Far from being under the rulership of an emperor or pope, the supreme state was seen to be firmly republican. All of the members were equal in legal status (though not, of course, in material strength), so that the supreme state was “a kind of democratic form of government,” at least in principle. Here we find expressed, for the first time, a theme that would later become one of the cornerstones of international legal doctrine: the complete legal equality of all states, without regard to material disparities in such areas as wealth or power. This idea of the legal parity of states was, however, conceded by Wolff to be more a matter of abstract principle than of reality. In practice, the supreme state is hegemonic. Since it is impractical for all of the states to send representatives to gather in one place, the realistic alternative is that “what has been approved by the more civilized nations” must determine what becomes the law for the whole world. In terms of the function that it served, Wolff ’s voluntary law was largely on a par with that of Grotius. Its effect was to relax some of the strictness of the necessary law by declining to inflict punishments for certain violations of it. As in Grotius’s theory, this immunity from punishments does not amount to an affirmative grant of true rights. “On account of the human factor,” as Wolff explained, “things which are illicit in themselves have to be, not indeed allowed, but endured, because they cannot be changed by human power.” As an example, he gave the law on resort to war. According to the necessary law, wars can be just on one side only. The voluntary law, in contrast, allows wars to be treated as just on both sides, so that both parties have an equal entitlement to the rights of war. The principal successor to Wolff in the rationalist tradition was the writer who supplanted him as Germany’s best-known philosopher: Immanuel Kant. Kant lived all his life in town of Königsberg in East Prussia, though his

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thoughts ranged much further. They extended, like those of Wolff, to outer space, but in this case more accurately. (He was an early advocate of the nebular theory of the formation of the solar system.) Also like Wolff—with whose writings he was thoroughly familiar—Kant was not a lawyer. He is known today primarily for his writings on metaphysics, philosophy of science, ethics, and aesthetics. But international relations was one of the many other topics to which his fertile and penetrating mind turned. His principal writing on the subject was a short work called Perpetual Peace, written in 1795, which included a statement of basic principles on which to base peaceful relations between states. Kant, in contrast to Wolff, had considerable doubts about the principle of the innate sociability of humans—and especially about the sociability of those humans who were in charge of national governments. “Nowhere does human nature appear less admirable,” he grumbled, “than in the relationships which exist between peoples.” He was a pessimist regarding international affairs, seeing relations between states as inherently conflictual. “[T] he state of nature,” he bemoaned in the spirit of Hobbes and Spinoza, “is . . . a state of war.” Nor had he any high opinion of the impact of internationallaw writers on the practice of states. “[T]here is no instance,” he lamented, “of a state ever having been moved to desist from its purpose by the testimonies of such notable men” as Grotius, Pufendorf, and Vattel. As a consequence, the problem of international order, in Kant’s view, is reduced to the problem of how to reconcile the inevitably competing interests and claims of states. To deal with this challenge, Kant posited the existence of something that he called “international right”—a concept that (he explained) “implies by definition that there is a general will which publicly assigns to each individual that which is his due.” This must arise out of what he vaguely called “some sort of contract.” The application of this transnational general will, he surmised, results in “a state of permanent and free association,” in the manner of a federation of states. This federation was envisaged as a somewhat looser arrangement than Wolff ’s supreme state. It was seen as an association of independent states, broadly on the model of the post-Westphalian Holy Roman Empire. (Part of Kant’s native Prussia—though not the part that he lived in—was still, at the time of writing, a member of that empire.) “The idea of international right,” Kant opined, “presupposes the separate existence of many independent ad-

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joining states.” He was explicitly opposed to the idea of a world government, or “universal monarchy,” which he feared would degenerate into “a soulless despotism.” In place of the commands of a global monarch—or of Wolff ’s basic norm of the quest for perfection—Kant proposed that his world federation would be ruled by what he called, rather grandly, “the transcendental formula of public right.” This was the axiom that “[a]ll actions affecting the rights of other human beings are wrong if their maxim is not compatible with being made public.” In other words, no individual state’s system of rules could make any claim for its holder that the holder was not willing to concede to its fellow actors. The essence of the idea, in short, was reciprocity (substantially in the spirit of Kant’s better-known categorical imperative in general moral philosophy). In the best rationalist fashion, this single norm was seen as the cornerstone of international law. Peace was to be maintained, Kant proposed, by means of what he called “an equilibrium of forces and a most vigorous rivalry” between these independent states. This “equilibrium” and “rivalry” must not, however, be seen in terms of power but rather in terms of right. What was envisaged was a system in which the freedom of action of each actor would be retained to the greatest extent compatible with the rights and interests of fellow actors. In other words, there was to be a maximization of freedom of action in the aggregate. It cannot be said that Kant’s ideas had any great impact in their time. But some of them would appear in future international legal thought, although applied in a very different spirit. Most outstandingly, his idea of law as a mechanism for maximizing freedom of action—within a certain overall ethical framework—would have a great impact in the following century and would continue to the present time.

Pragmatists—Tools of the Trade In the course of the eighteenth century, the pragmatists may be said to have gradually gained the upper hand over the rationalists. A variety of factors were at work in this process. For one thing, the pragmatic writing tended to be more useful to men of affairs, even if it involved compromising the purity of the law of nature. Rationalists were more inclined to see themselves as

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critics of politicians rather than as loyal assistants. The more unswervingly one adopted reason as a guide, the more one could find to criticize. Another factor in the rise of the pragmatists—and a crucial one—was a greater availability of material on which to work, that is, greater access to evidence and information about what state practice actually was. Access to two kinds of information was especially necessary. One was treaty texts. The other was administrative and judicial rulings of states that were relevant to international relations (such as regulations about maritime traffic in coastal waters or instructions to armed forces on the conduct of war). Systematic study of the treaty practices of states began to become possible only at the end of the seventeenth century. A pioneering figure in this process was a French Benedictine monk named Jean Mabillon. His De re diplomatica (1681) founded the science of diplomatics, which is the study of the authenticity of documents. Another important early figure in this area was the German polymath Gottfried Wilhelm Leibniz. Among his many roles— philosopher, mathematician, psychologist—was historian. His Codes Iuris Gentium Diplomatici (1693) was one of the earliest compilations of treaty texts. “Collections of treaties of alliance, of peace, of concessions,” asserted Leibniz, “are . . . the elements which underpin and support the whole edifice of history.” The immediate purpose behind his project was to provide support for legal claims by the Holy Roman Empire against France. But he expressed the hope that the chief value of these labors, in the longer term, would be to further the understanding of the law of nations. Other similar efforts appeared at this time. In fact, in 1693, the very same year that Leibniz’s collection was published, a collection of French treaties was assembled by Frédéric Léonard, covering treaties from 1435 onward. In 1700, in Amsterdam, a four-volume collection of treaties and other public acts by European states, from the dawn of the Christian era, was published. In England, a massive collection of primary source documents, known as Rymer’s Foedera, began to appear in 1704, inspired by the work of Leibniz—and even credited generously by Leibniz as being superior to his own effort. It remains an invaluable tool for historians. So does the work of Jean Dumont, a French soldier and publisher who settled in the Netherlands and eventually became official historiographer to the Holy Roman Empire. His massive Corps universel diplomatique du droit des gens began to be published in Amsterdam in 1726, and remains a valuable scholarly resource to

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the present day. In 1791, the German scholar Georg Friedrich von Martens began publishing a collection of treaties starting from the year 1761. These were not exercises in antiquarianism for its own sake. They could be useful to rulers who were interested in bolstering legal claims of various kinds—and even forming the necessary just cause for a resort to war. Given the frequency of wars in Europe in the period 1650–1815, the hunt for just causes—or at least plausibly just causes—could keep practicing lawyers busy. This is a subject area that has yet to be explored in any detail. But it may be noted that, in 1719, a French compiler named Père Lelong published a collection of French historical documents, the principal purpose of which was to support French expansionist policies by exhuming the original evidence for sundry claims to neighboring territories over the centuries. Another potentially rich source of information for the pragmatists, alongside treaties, was judicial decisions. There were no international tribunals in this period, but national courts sometimes had occasion to apply international law—and by comparing the judgments of courts of different states, an idea of the content of that law could be gleaned. Most noteworthy in this respect were prize courts, which adjudicated the lawfulness of captures of ships at sea during wartime. Established by each belligerent state on its own, nevertheless these courts were charged with judging according to the international rules of maritime law, as they had evolved since the Middle Ages. During the eighteenth century, prize court decisions gradually came to be disseminated, although often in such extremely terse versions as to be of limited practical use. Not until the French revolutionary wars would a substantial body of prize court judgments emerge.

The Early Pragmatist Writers The earliest figure of importance in the line of pragmatist lawyers was Zouche. While he subscribed to the Grotian distinction between the voluntary law and the natural law, he differed from Grotius in being interested chiefly in the voluntary law. His book expounded a host of practical questions. It was, in fact, a veritable encyclopedia of the topics that, in the aggregate, were coming to define the study of international law: sovereignty, nationality, various aspects of property rights (such as acquisition of title and determination of succession), diplomatic relations (including extensive discussions of

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the ranking of diplomats, as well as questions of immunities), and war-related issues of all kinds (including topics such as captures of property, treatment of neutrals, the law of contraband, safe-conducts, issues concerning prisoners and ransom, surrenders, and the terms of peace treaties). Zouche frequently declined to take a position himself when the authorities or precedents were at odds, as they often were. But for an identification of relevant practical issues and an outline of the varying positions of commentators at the time, his work is invaluable. Another major writer in the pragmatist tradition was a Dutch admiralty judge named Cornelius van Bynkershoek, who wrote in the early part of the eighteenth century. Originally from Middelburg in the Netherlands, he studied theology at the University of Franeker, in Friesland. He served as president of the Council of Holland and also as a professor of law at the University of Leiden. For a time, he was editor of a satirical journal—an unusual activity in a profession not renowned for a sense of humor. He wrote a short work on freedom of the seas in 1702 and one on diplomatic law in 1721 but is best known for a treatise on Questions of Public Law, published in 1737. It was an unsystematic work, but it is of much interest in that it dealt with many practical issues that were in lively dispute at the time. Bynkershoek did not hesitate to make his own opinions known or to criticize acts and decisions that he thought were wrong—although, in the interest of caution, he withheld his own views when current or very recent controversies were in question. Bynkershoek had hardly any use for natural law, although he conceded to Grotius and Pufendorf “the place of honor” in international legal writing. His own concern was well nigh exclusively with the voluntary law of nations instead. Practice, he pronounced “is the origin of the law of nations.”  For “the testimony of ancient poets and orators,” he had no use. Instead, he preferred to consult the opinions of “those who have associated with men and had experience in affairs of state, and have grown wise from practical administration.” And he made it clear that he wanted his book to have “immediate practical value.” Reason was also important to Bynkershoek—more important, in fact, than “the phraseology of treaties” as a means of discerning the law. But reason, to Bynkershoek, meant sound thinking and robust common sense in general, rather than systematic natural-law doctrine of the rationalist

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sort. Moreover, reason could not be the sole basis of law because, as he wryly observed, it “usually offers arguments on both sides” of issues. When that occurred, as it frequently did, the matter at hand must then be resolved by an “appeal to custom” and a search for “the consensus of opinion among nations.” This entailed drawing on “usage long continued in the making of treaties between nations, and upon widely established precedents.” Bynkershoek was a modernist by temperament. He frankly accepted that international law, if it was regarded as rooted in the customary practices of states, could not be static. “[A]s the habits and customs of nations change,” he pointed out, “so does the law of nations.” For this reason, recent precedents are of more value than older ones, since they can be expected to reflect the current practices of states more accurately. His outlook can fairly be described as utilitarian, since he expressly proclaimed “very expediency” to be “the mother . . . of justice and equity.” Also writing in the pragmatist vein was Gabriel Bonnot, Abbé de Mably. He was the elder brother of the philosopher Étienne Bonnot de Condillac. The family came from the Grenoble area. Although he was in holy orders, Mably did diplomatic work for the French foreign ministry in 1742–46. Armed with this experience, he published, in 1748, a two-volume treatise on Le droit public de l’Europe fondé sur les traités (The Public Law of Europe Based on Treaties). As the title indicates, treaty practice was his principal source, rather than principles of natural law. Also as indicated in the title, the subject was not international law in general, but instead something labeled the “public law of Europe.” This differed from general international law in being hegemonic. Mably thought that any system of interstate order had to rest on the dominance of a leading power. In ancient Greece, for example, that role had been performed by Sparta, the most militarily powerful of the Greek states. In contemporary Europe, Mably envisaged that Prussia would take the lead. Another writer—and indeed the supreme one—in the state-practice vein was the German Johann Jakob Moser. A native of Stuttgart in the Duchy of Württemberg, he studied at the University of Tübingen, where he proved sufficiently impressive to be appointed professor of law at the age of nineteen. He went on to a number of administrative appointments in the ser vice of the Holy Roman Empire—and also to become its foremost constitutional authority. In terms of sheer bulk, he surpassed even Wolff in producing a

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fift y-volume treatise on Deutsches Staatsrecht (German Constitutional Law) in 1737–54. Involvement in political rivalry in Württemberg led to a fiveyear imprisonment (in 1759– 64). After his release came a further twentyfour volumes of Neues deutsches Staatsrecht (New German Constitutional Law), published between 1766 and 1782. For all of that labor, the sobriquet of “Father of German Constitutional Law” seems a modest, but apt, reward. Amid this torrent of writings by Moser were occasional works on international law. In an early essay, written in 1739, he proposed the existence of a law of nations that was based on “the positive experience of norms customary among civilized peoples.” His most substantial contribution to the subject was a characteristically massive work, in ten volumes, in 1777–80, Versuch des neuesten europäischen Völker-rechts in Friedens- und KriegsZeiten (Essay on the New European International Law in Wartime and Peacetime). Moser’s work represented the very apogee of the pragmatist method. He expressly disclaimed any intention of writing what he called a “philosophical” law of nations. International law was largely based, in his view, on the practices of states rather than on fundamental principles of justice. His method was therefore an inductive rather than a deductive one, with greater attention paid to custom than to treaties. Moser frankly denied the existence of a general international law. What passes for that, he contended, is actually a customary law devised by the leading European countries. Moser’s stock would later stand high in at least some circles of international law, as he came to be regarded as the founding father of the positivist philosophy of international law. He hoped, however, that his work would make a significant impact upon his contemporaries; but in this he was disappointed. The distinction of writing the first international-law treatise to reach a wide audience and influence practicing statesmen and judges fell instead to an older contemporary: the Swiss writer Emmerich de Vattel.

Emmerich de Vattel For an example of a figure poised at nearly the midpoint along the internationallaw spectrum, the outstanding representative is Vattel. He was a native of the canton of Neuchâtel, which was not then part of the Swiss federation but instead was under Prussian rule. His father was an ennobled Protestant minister, and his maternal grandfather a counsel for Neuchâtel at

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the Prussian court. Vattel obtained a degree in humanities and philosophy at the University of Basle and then studied at the Academy of Geneva, where he was a student of Burlamaqui. It was at this time that he discovered the writings of Wolff, which became his principal intellectual guide. Being unsuccessful in a quest for employment by the Prussian government, he entered the ser vice of Saxony, which entailed a very brief diplomatic mission to Berne (in 1747). He then returned to Neuchâtel, where he remained for the next ten years. During this period, he wrote most of the work for which he is known—most outstandingly The Law of Nations. The book was published in French (not Latin) in 1757 in Neuchâtel, although the title page gave 1758 as the date and London as the place. The work was a great success, and deservedly so. It was, in fact, the very first treatise of international law of the recognizably modern kind. Previous expounders of the subject had written in Latin for scholarly audiences. Vattel wrote in the vernacular and for Everyman. He gave a comprehensive overview of the subject, but in a straightforward and direct manner that was readily accessible for lay readers. Every general international-law treatise writer since that time has followed in the footsteps of the man from Neuchâtel—but seldom with such verve and sparkle. The book’s charming style ensured it a wide readership, and it rapidly became the handbook of choice for statesmen and judges throughout Europe and in the New World colonies as well. A translation into English quickly followed, in 1760. Such fame did Vattel earn from the book that he was invited back to Saxony, where he served on the privy council and as adviser on foreign affairs to the Saxon government. He married into a Huguenot noble family, but ill health claimed him in 1767, at age fift y-three. Vattel’s allegiance, in principle, to the rationalist approach is evident in his self-declared role as popularizer of the ideas of Wolff, whom he lauded as the “great master” who went before him and showed him the way. Vattel did, however, acknowledge his intellectual mentor’s treatise to be “a very dry work” —an accusation that no one could level against his own text. Vattel candidly declared a preference for a deductive rather than an inductive method. He was, in short, a self-proclaimed spider. He also made it clear that, like Grotius and Wolff before him, he was not prepared to accept the de facto conduct of states as the measure of what the law required. The principles that he expounded, he candidly announced, “are going to appear very

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different from the policy of cabinets.” And he was fully conscious that, “to the disgrace of human nature,” many rulers would ridicule his work. But he was determined to speak his (and Wolff ’s) mind nonetheless. At the same time, though, there was a great deal of the bee in this selfdeclared spider. Vattel, like Bynkershoek, wrote with the conscious intention of producing a work that would be useful. He expressly identified his intended readership as sovereigns and their ministers, rather than scholars. And he was even hopeful that his words would command some attention in those circles, on the somewhat optimistic thesis that “justice is inseparable from sound statesmanship.”  In many respects, his optimism proved well founded. The book was much cited in court judgments over the following generations. We have seen that it was consulted—or at least borrowed from a library—by no less a figure than George Washington. In his basic framework, Vattel followed Wolff closely. He echoed his predecessor, for example, in holding that relations between states are governed by a modified form of natural law—modified to take account of the special interests of states. He adopted Wolff ’s twofold classification of the duties of states—the state’s duty to itself, to strive for “perfection,” and its duty to other states, of general sociability. Most notably, he straightforwardly adopted Wolff ’s fourfold division of the law of nations (into the natural, voluntary, stipulative, and customary laws). Like Wolff, he held the voluntary law to be a set of norms arising deductively from “the natural liberty of Nations, from considerations of their common welfare, from the nature of their mutual intercourse.” It was therefore an expression of the natural sociability of states, in the spirit of Aristotle. Vattel followed Wolff, too, in insisting that this law is not “voluntary” in the sense that adherence to it is optional. It is a law based on consent—but with “consent” being required to be given (i.e., required, that is, by natural law). [W]hat we call the voluntary Law of Nations [explained Vattel] consists in the rules of conduct, of external law, to which the natural law obliges Nations to consent; so that we rightly presume their consent, without seeking any record of it; for even if they had not given their consent, the Law of Nature supplies it, and gives it for them. Nations are not free in this matter to consent or not; the Nation which would refuse to consent would violate the common rights of all Nations.

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This voluntary law was closely related to the natural law of nations in being “derived from the same source and based upon the same principles.” One advantage that the voluntary law had over the necessary law was in being “of more certain and easy application.” The most important difference, though, was that the necessary law of nations was binding chiefly on the consciences of sovereigns, whereas the voluntary law controlled their external actions. This distinction went far toward relegating the whole of natural law to the realm of morality, while leaving the voluntary law as the unchallenged ruler in the sphere of strict legal relations. Another of Wolff ’s ideas that was put into wide circulation by his eminently readable follower was the principle of the legal equality of states. It will be recalled that Pufendorf had been an earlier articulator of this thesis. But it was Vattel’s exposition that made the greatest impression on future readers and writers. In asserting the legal equality of these moral persons with one another, Vattel employed a winsome analogy in pointing out that a “dwarf is as much a man as a giant is”—and that, by the same token, “a small Republic is no less a sovereign State than the most powerful kingdom.” A common later form of this viewpoint would be the pronouncement that Russia and Geneva were equals in the eyes of international law, notwithstanding the mammoth disparity in size and power between them. Vattel has sometimes been understood—or rather misunderstood—as a radical champion of state sovereignty. But here, as in the case of Pufendorf, caution is called for. What Vattel was insisting on was the legal equality of states with one another and the principle of nonintervention by states in the affairs of one another. State sovereignty was not unlimited, so long as the canopy of natural law overlay international affairs in general, which Vattel clearly held to be so. In one noteworthy respect, Vattel parted company with Wolff. He rejected his predecessor’s idea of a global supreme state, dismissing it as a “fiction” that was “neither reasonable nor well enough established” to serve as a source of binding rules of law. In addition, and more importantly, Vattel made some innovations of his own, most notably in the areas of war and neutrality. Regarding neutrality, he provided the first explicit explanation for the right of belligerents to infringe the freedoms of neutrals by such means as capturing contraband of war (i.e., goods that are connected with war, such as arms and ammunition). He justified this action in terms of what would later be

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called the principle of necessity, meaning the right to take action in emergencies that involved infringements of the rights of others. More important yet, Vattel inaugurated a major shift in the law relating to the conduct of war. This was to propose replacing the principle of military necessity—which (as previously observed) was the lone rule on the conduct of war in just-war doctrine—with a fi xed code of rules on warfare. The code would be the product of the voluntary law rather than of natural law. Instead of determining the lawfulness of belligerent action in terms of its military value in the circumstances of each individual case, there would be a set of objective rules to be applied mechanically in all situations. For this innovation, Vattel deserves to be regarded as the leading figure in the modern law of war. If Vattel may fairly be said to be the father of our modern approach to the laws of war, it must be confessed that his offspring had a very long gestation period. Until well into the nineteenth century, hardly any progress was actually made on drafting a code of laws to govern the conduct of war, beyond a general agreement on a bare handful of rules, such as a prohibition on the use of poison or the employment of assassins. But Vattel nonetheless deserves recognition as the first international-law writer to point out the direction in which the law would go in the future.

G. F. von Martens The most noteworthy writer in the tradition in the generation after Vattel was the German author Georg Friedrich von Martens. Originally from Hamburg, he became a professor of jurisprudence at the University of Göttingen in 1783. We have earlier taken note of his work as the compiler of a collection of European treaties (in 1791). In the course of his career, he served various governments (some of which he outlived). In 1808, he became a counsellor of state to the elector of Hanover. Two years later, he served in the council of state of the short-lived Kingdom of Westphalia (a Bonaparte creation). He then returned to Hanoverian ser vice, as privy cabinet councillor in 1814 and later as a representative of Hanover in the diet of the post-1815 German Confederation. Amid this activity, he found time to pen a general treatise on international law that was strongly in the spirit of Vattel. The first edition appeared

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in 1785 in Latin—the last major occasion, incidentally, in which that venerable tongue was employed in international legal writing. The second and subsequent editions were in French, as Précis du droit des gens moderne de l’Europe (Summary of the Modern European Law of Nations). It was translated into English in 1795 by the prominent British journalist and controversialist William Cobbett. A German edition finally appeared in 1796. This book, like Vattel’s, was designed to serve a practical function—in his case, for use in a university course on politics and diplomacy. From the outset, Martens insisted on a fundamental distinction in law that was importantly different from that of his predecessors in the Grotian tradition. This was the distinction between rules of law, on the one hand, and rules of morality or conscience, on the other. He credited Kant with the initial insight. The difference, in brief, was that rules of law are imposed from the outside by some kind of authority, whereas rules of morality are self-devised. Martens’s own interest was on the law side. In general, Martens’s treatment of international law did not actually differ greatly from that of Vattel and other authors in the Grotian tradition. He praised Vattel, along with Zouche and Textor, for offering modern examples to illustrate their doctrines. And he applauded Moser as the first to approach the subject systematically. Like Wolff and Vattel, he conceded that, in principle, natural law was the same for states as for individuals—but that the application of that law to states necessitates some adjustments and thereby gives rise to a law of nations that differs from the general law of nature. It was clear that his principal interest lay in expounding the portion of the law of nations that was man-made—what he called “the positive, proper, particular and arbitrary” law applicable to relations between states. This law arose from custom and from treaty practice. It was necessarily pluralistic, with each state having its own menu of rights and duties, depending on what agreements it had chosen to enter into with other countries. There was not, and could not be, any such thing as a universal law of nations. There may be, Martens conceded, a universal society of states—but if so, it must be a natural society (meaning one governed by natural law), and not a positive one (governed by positive, or man-made, law). Martens was perhaps the most explicit of the writers of this period in his endorsement of an inductive method for his exposition. His goal, he explained, was to observe the sundry specific rules agreed on by a large number

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of European states and then to induce from them “a theory of the law of nations of Europe [which is] general, positive, modern and practical.” He was careful to explain the utility that such an abstracted general law would have: that, in the resolution of disputes, it would suffice to determine and apply the contents of this general law, without needing to produce evidence of actual agreement between states on specific rules. Among the puzzles to which Martens turned his attention was the question of how a single state could become legally bound to follow a given course of conduct in the absence of a treaty obligation. A mere persistent practice by a state could not, on its own, have this effect, Martens maintained. But it could give rise to a presumption that the practice was well founded and reasonable. Even a single act by the state in question could give rise to such a presumption, which could then be “fortified” over time by further experience. On the whole, a conjunction of various factors could, in combination, have the effect of promoting a customary practice by a state into a rule of law. These factors included the natural force of habit, the advantage afforded to the state itself by continued adherence to the practice, the desire to be regarded as a civilized state in the eyes of others, and a fear of countermeasures or opposition in case of disavowal. Martens also gave some attention to the relationship between customary law and treaties. He contended that an ensemble of specific arrangements, such as a network of bilateral treaties on some subject, could be regarded as constituting, in the aggregate, “a general convention.” This general convention would be a customary or unwritten rule of law, even though it had its origin in the treaty practice of states. If Vattel was more successful than Martens in appealing to a wide audience, Martens had the higher reputation among lawyers and scholars. In the nineteenth century, he would be regarded, with at least some reason, as an important progenitor of the positivist philosophy of international law. That praise is somewhat misplaced (as will be seen), but it provides a telling indication of the esteem in which he was held. Martens was certainly no aggressive modernist by temperament. His principal contribution to international law lay in the useful light that he shed on the process by which international law is made. This was in contrast to Vattel, who remained much more in thrall to the idea of natural law as an eternal and unchangeable corpus of rules. Martens was more sensitive the idea that international law

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is something that is made and not merely (or exclusively) something that is found.

Making Law Over the course of time, the pragmatic approach to international law gained ground over the rationalistic one—a process that would culminate in nineteenth-century positivism. Wolff was the last major figure to write in an uncompromisingly rationalist mode. (Not until the Vienna School of the 1920s would there be anything further in this style.) There were many aspects of state practice for the pragmatist writers to take stock of. It is unfortunate that there has not (so far) been any major tradition of writing detailed histories of international law in particular periods. The eighteenth century (like all others) would certainly make an interesting study. For the present, two areas of activity may be given some modest attention, by way of illustration: treaties of amity and commerce, and maritime law.

Treaties of Amity and Commerce There is no better illustration of the process by which international law is built from the bottom up, by conscious state practice, than the network of treaties of amity and commerce that began to be a common feature of the European landscape in about the middle of the seventeenth century. They were a sort of latter-day successor to the law merchant of the Middle Ages, in that they were a key mechanism for facilitating international trade. They also resembled the law merchant in constituting, in effect, a transnational code of law, by virtue of the fact that there was a very high degree of similarity in the contents of these treaties. This makes it possible to treat them as a group. These treaties of amity and commerce had several important features, of which four were especially noteworthy. First was the stipulation of a number of basic rights to be accorded to individuals involved in commercial activities between the treaty states. These persons were not, of course, themselves parties to these treaties. Only states were. But they were the beneficiaries of the rights set out. Broadly speaking, the two state parties would typically

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agree to grant to one another’s nationals the right to settle and trade in their respective territories. Crucially, these treaties also typically provided that the nationals of each state resident in the other’s territory be guaranteed to be treated on a par with nationals of the host country in regard to such matters as access to courts and liability to taxation. Resident merchants were commonly guaranteed a right of freedom of worship, too, in cases where the treaty parties were of different established faiths. In this way, the treaties of amity and commerce became forerunners of later international conventions on human rights. A second important common feature of the network of treaties of amity and commerce was the standardization of practice concerning reprisals. Beginning in about the middle of the seventeenth century, states began to include in their treaties of amity and commerce provisions expressly limiting the right of the governments to grant letters of marque and reprisal to their nationals. Generally, the requirement was that such letters would not be issued unless there had previously been a formal request by one ruler to the other for a remedy, followed by a clear failure to provide justice. The Netherlands played the leading role in this trend. An early agreement to this effect was found in the truce of 1609 between Spain and the Netherlands (during the War of Dutch Independence). A similar provision appeared in the final peace treaty of 1648 between the two countries. Other countries soon followed this lead. In 1654, England and the Netherlands agreed, in the peace treaty that brought the first Anglo-Dutch War to a conclusion, that letters of marque and reprisal could be issued only after a three-month period following a failure to do justice. A treaty of amity and commerce between France and the Netherlands in 1662 provided that letters of marque and reprisal could be issued only after the occurrence of a “manifest denial of justice.” By the early eighteenth century, it was matterof-factly stated that this limitation on the issuing of letters of marque and reprisal was “accepted usage” among the European states. A third important common feature of these treaties was that they formed the basis of the law of neutrality—a subject that just-war doctrine had disdained. The most important element here was an agreement that “free ships make free goods,” which came into play whenever one of the states was at war while the other one was at peace. The earlier general rule, as laid down in the medieval Consolato del Mare, had been that the state at war was entitled to capture property belonging to enemy nationals even if it was being carried

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on a neutral ship on the high seas. A “free ships–free goods” provision altered that rule between the two treaty parties, by providing that the belligerent state could not capture enemy property from ships of the neutral country. In the common expression of the time, it was said that the neutral flag “covered” the enemy goods and kept them legally safe from capture. When arrangements of this type were made on a wide scale—as they were—the net effect was to reduce the impact of war on the activities of maritime traders, since nationals of belligerent states could now ship their goods on neutral vessels and thereby legally bar the enemy from capturing them. The fourth common element in the treaty practice was the development of what came to be called a most-favored-nation clause. This entitled each party to a treaty to be given treatment equal to that accorded to any third party—even if the third party’s favorable treatment was arranged at some unspecified future time. The first most-favored-nation clause that clearly included this element of futurity appeared in a bilateral treaty between England and Spain in 1667. As provisions of this kind appeared in more and more treaties, the effect was a gradual introduction, from the ground up, of a system of nondiscrimination in commercial relations. Bilateral treaties had some weaknesses, however. For one thing, their contents were necessarily dependent on the bargaining process between governments. It was the general policy of the British government not to agree to the inclusion of “free ships–free goods” provisions in treaties to which it was a party. As the strongest maritime power, it was careful to avoid placing legal restrictions on the benefits that its naval strength could bring. Moreover, there was a certain fragility to these treaties, since it was generally accepted that an outbreak of war between two states automatically terminated all treaties between them. Still, there was no doubting that the treaty network did, in fact, make for stability between the European countries and lay a firm foundation for rights of foreign merchants abroad—and, more widely, for nondiscrimination against foreigners generally—as well as for the rights of neutral traders during wartime.

Law at Sea The situation regarding the law of the sea provides another excellent illustration of the manner in which international law was increasingly becoming a matter of reconciling concrete interests—in this case, without much regard

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to the demands of an eternal and universal natural law on high. It has been observed that, in the Middle Ages, it was not uncommon for states to make claims of sovereignty over areas of the seas. Natural-law writers consistently rejected such claims, though, asserting that the sea was common to all for the two key operations of fishing and navigation. It was conceded, however, even by champions of freedom of the seas, such as Grotius, that at least some kind of property right could be acquired, by way of occupation, over certain very small areas of the sea, such as inlets largely enclosed by land. The question was the kind of right. Some writers contended that occupation could confer full ownership, or dominium in the parlance of Roman law. This was on the model of the Roman law of occupation, which (as observed earlier) was one of the “natural” modes of acquiring title to property. Others contended, though, that the more apposite concept was the Roman-law principle of imperium, according to which the rights of the coastal state were strictly contingent upon the actual exercise of control. So long as the control was actually and effectively exercised, a legal right of possession would be recognized by other parties. But if that control lapsed, then the area reverted to its prior status of being free to all. This imperium argument was put by another of the opponents of James I’s fisheries claim, French lawyer and diplomat Pierre Jeannin. A coastal state, he maintained, can only assert its power over maritime areas which are within range of its artillery fire. Beyond that point, the sea must be free to all. This appears to be the first appearance in print of what became known, for obvious reasons, as the “cannon-shot rule,” but it also seems that Jeannin was expressing a position widely held at the time. In all events, the cannon-shot principle came to be widely accepted in the course of the eighteenth century, largely on the strength of Bynkerhshoek’s advocacy of it in his pamphlet of 1703 on maritime law. In the course of the eighteenth century, the nature of the coastal state’s right underwent a subtle, but significant, alteration: from a basis of imperium to one of dominium. The idea of imperium implied that a coastal state could have legal title to any area of the sea which it actually policed—that is, to areas where artillery was physically deployed. This position was not adhered to, however. It came to be agreed that what coastal states possessed was true dominium over their offshore areas, with the cannon-shot principle now functioning merely as a unit of account for measurement. There continued to

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be disagreement, though, about the breadth of territorial seas (as they came to be called). For instance, there was dispute as to just what the much-vaunted cannon-shot distance actually was. Different states made different assertions on this point, with some states claiming three miles and others four. It might also be wondered whether territorial seas should automatically expand in width as artillery technology improved. Not until the late twentieth century would this issue be satisfactorily resolved.

Revolutionary Times The French Revolution, which began in 1789, was a frightening affair to conservative forces throughout Europe. One of the many aspects of that cataclysm that would have long-term implications was the association between natural-law ideas and political radicalism. This was not altogether new, since the “Glorious Revolution” in England in 1688 and the American War of Independence both witnessed appeals to natural law and natural rights. It should be appreciated, too, that general natural-law thought (i.e., not specifically relating to international affairs) had been decidedly reformist in character throughout the late seventeenth and eighteenth centuries. It is not difficult to see that a system of thought characterized by a resolute and uncompromising rationalism would be perceived as threatening by entrenched elites and vested interests. This is indicated by the reaction to one of the major features of systematic jurisprudence (as general natural-law studies were sometimes known): codification of law. Codification was, in large part, a program for sweeping away the various excrescences, anachronisms, antiquated practices, localisms, and fictions with which legal systems were encrusted, and replacing them with streamlined, rational, centralized ways of operating. Exemplifying this disruptive, quasi-subversive aspect of natural law was a group of writers in France known as the physiocrats, who emerged in the 1750s. Their very title (meaning “rule by nature” in Greek) highlighted the centrality of natural law to their thought. They sought to strengthen central government at the expense of local and feudal interests, while at the same time liberating individuals to engage in productive activity without hindrance from those same interests. (“Laissez faire, laissez passez” was one of

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their many slogans.) Their many plans for reform seemed worryingly unsettling, for good reason, to those who were committed to traditional ways— most notably to feudal magnates whose tradition-encrusted rights placed severe limits on the free marketability of land. The French Revolution, commencing in 1789, reinforced and greatly magnified this association between natural law and radical reformism. Moreover, its popular agitators were far more alarming than their genteel (and strongly royalist) physiocratic predecessors. The revolutionaries, and especially the Jacobins, were renowned for their bombastic appeals to natural rights—and also for their policies of extreme centralization and ruthless extirpation of obsolete customs, feudal and ecclesiastical privileges, and other vestiges of the past. (They also had a regrettable fondness for the guillotine.) In the field of international law, too, there were some indications that the French Revolution would mark a radical break with the past. But this promise—or threat—was not, in the event, borne out. In many respects, the French Revolution would appear to have made comparatively little impact on international law, however cataclysmic an event it was in many other ways. The wars that raged in its wake, from 1792 to 1815 almost without interruption, were begun and ended in much the usual way—with indignant (and often mutual) accusations of wrongdoing at the start, and peace agreements of a more or less coerced character at the end. Innovations certainly did occur, but those that proved the most lasting were of an incremental character—and, ironically, came not from the agitators and firebrands of Paris, but rather from the bewigged judges of the admiralty courts of England.

Radicalism in the Air There were various early indications that the French Revolution might lead to fundamental changes in international relations. One of these signs was the Declaration of Peace, issued by the National Constituent Assembly in May 1790. In it, the French government announced its renunciation of “the undertaking of any wars aimed at conquest” and vowed to “never employ its forces against the liberty of any people.” The republican constitution of 1793, in a similar spirit, grandly proclaimed the French people to be “the friends and natural allies of free peoples.” It renounced any ambition of interfering in the affairs of other countries, while asserting freedom for it-

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self from intervention by foreigners. It also committed France to granting asylum to “foreigners who, in the name of liberty, are banished from their homelands,” while pointedly excluding “tyrants” from this privilege. In 1792, the French National Assembly, in a spirit of philanthropy, voted for the abolition of the capture of private property in maritime warfare— that is, not merely for the “free ships–free goods” principle, barring capture from neutral ships, but also for a total ban on any capture of private property at sea. Other powers were invited to adhere to this generous principle. The U.S. government responded favorably, as did the German Hanseatic League (plus the free city of Hamburg). No other states did, however, so that initiative had no lasting effect. An interesting question that arose—for apparently the first time in history—concerned the degree of continuity between a revolutionary government and its predecessor. The immediate context was the issue of what to do about treaties concluded by the royal governments prior to the revolution. It appears that the French Revolutionary governments never established a general policy on this. Prior treaties with the United States and Switzerland were expressly reaffirmed. But an alliance arrangement with Spain—the socalled Family Compact of 1761 (referring to the Bourbon family, different branches of which occupied the two thrones)—was not. That became evident when the Spanish government sought to invoke the compact. In 1789, a Spanish warship claimed possession of Nootka Sound, off the west coast of Vancouver Island in northwestern North America, and proceeded to capture two British vessels. This act provoked a threat of war by the British government. In the face of this threat, the Spanish government sought France’s aid pursuant to the compact. After a fierce debate, the French National Constituent Assembly decided against assisting Spain. In fact, it was the debate over this question that led to the adoption of the Declaration of Peace. In addition, the Revolutionary government flagrantly breached prior treaty commitments when it voted, in November 1792, to reopen the Scheldt River, in the southern Netherlands, after gaining control of the area. The Scheldt had been closed to large merchant vessels since the Treaty of Westphalia, with a view to forestalling commercial rivalry to the Dutch Republic. Although the closure had been reiterated many times since then in treaties, the Revolutionary government unilaterally declared it open. In the face of a British protest, the French government defended the reopening as an assertion

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of natural right on behalf of a liberated people. This controversy formed one of the principal bases for Britain’s declaration of war against France the following year. The opposing powers advanced some innovations, too. The principal one was the Declaration of Pilnitz, promulgated jointly in August 1791 by the Holy Roman Empire and Prussia, prior to the actual outbreak of war. The noteworthy part of this declaration was the assertion that the events in France could not be regarded as internal matters affecting France alone, but instead must be seen as “a matter of common interest to all the sovereigns of Europe.” The declaring states went on to announce preparations for a possible armed intervention into France in support of King Louis XVI against the revolutionaries. Nothing concrete came of this, as it happened, but more would be heard of the idea, in a variety of contexts, in the future. The following year, the revolutionary government announced an interventionist policy of its own, in the form of exporting the French Revolution to other countries. After the outbreak of war against Austria and Prussia, and the decisive French victories at the Battles of Valmy and Jemappes in 1792, the National Convention resolved that it would no longer respect the rights of enemy powers as domestic sovereigns over their own nations. Instead, France would “grant fraternity and aid to all peoples who wish to recover their liberty.” War, in the phrase of the revolutionary leader Georges Jacques Danton, was to be “the exterminating angel of liberty.” Fears soon grew, however, that the angel’s homicidal tendencies might be exercised in undesirable directions. In April 1793, the “fraternity decree” (as it was sometimes called) was revoked. It was replaced by another one, stating that France “will not interfere in any way in the government of other powers.” Danton, of all people, announced the change. The fraternity decree, he explained, may have had a “beautiful motive,” but realism now demanded steady attention to France’s own self-preservation and avoiding unnecessary offense to others. Sobriety sometimes prevailed over enthusiasm, even in those tumultuous times. Another—and decidedly tamer—indication of the association of natural law with reformist (and even radical) politics was a proposed charter on the rights of peoples, which was designed as a counterpart to the earlier Declaration on the Rights of Man and the Citizen. It was presented to the National Convention in 1793 by Henri Grégoire. He was a priest and a general

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humanitarian and literary figure, as well as an early supporter of the revolution in general, and of the abolition of the monarchy in particular (with his memorable assertion that “kings are in morality what monsters are in the world of nature”). He served for a time as president of the National Convention. Among his causes were the organization of public libraries, the establishment of botanical gardens, the improvement of education in general, the preservation of antiquities against “vandalism” (a term that he coined), and the championing of racial equality. One of the less known of his many interests was the codification of international law. Grégoire’s proposed declaration was nothing resembling a detailed code of substantive law. It was a statement of very general principles, scarcely over a page in length, with a pungent natural-law flavor. It comprised twenty-one articles, of which the first stated the nations of the world to be “among themselves in the state of nature” with “universal morality” as their common bond. “A nation should act towards others,” it asserted, “as it wishes others to act towards it; what a man owes to a man, a nation owes to another nation.” Nations were exhorted to “do in peace the greatest amount of good to each other, and in war the least harm possible.” They were also urged to subordinate their private interests “to the general interest of the human family.” Some of the provisions were a bit more specific than these. There was a statement, for example, that a “nation has not the right to meddle in the government of others.” It asserted that “[e]very nation is the owner of its own territory.” Alliances directed against “the interest of a country” were pronounced to be “an attack against the human family.” Diplomatic immunity was asserted, and treaties declared to be “sacred and inviolable.” One person who was unimpressed with Grégoire’s effort was Martens. Of a generally conservative temperament, as well as a pragmatic one, Martens was a staunch foe of the French Revolution generally. He was contemptuous of Grégoire’s opus in particular, deriding it as “nothing but a beautiful play of fancy” that was ultimately “nothing but a chimera.” Also voicing objection to rationalistic, natural-law approaches to international law was a British lawyer named Robert Ward. He rejected the very idea of deriving international law in hypothetico-deductive fashion from a set of first principles, arguing instead for a pluralistic world in which “varieties of religion and . . . moral systems,” combined with “important local circumstances,” produced different systems of international law for different parts of the world.

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In all events, Martens and Ward need not have been unduly worried about Grégoire’s project. It was not adopted. The worthy prelate showed some persistence, however, presenting it a second time in 1795. On this occasion, too, it bore no fruit. According to Grégoire’s memory, the members of the Committee for Public Safety feared that the project would “irritate the despots with whom it was intended to enter into negotiations.” The fate of Grégoire’s codification proposal was symptomatic of the impact of the French Revolution on international law. Early hopes (or fears) that it might portend radical changes went largely unrealized—a point that Martens noted with evident relief in the 1801 edition of his treatise. As attractive as the idea of a continent-wide alliance against royalty and aristocracy was to some, it failed to bear significant fruit. Antiroyalist proclamations and appeals might make for effective propaganda (though even that wore off over time), but they did not provide a basis for replacing the rivalries of states with clashes of ideologies. The wars of the French Revolution era were, for the most part, further installments of political clashes of the familiar sort. Napoleon Bonaparte, at the head of the French armies, cut a dazzling figure whose fascination still endures. But at the end of the process, France was reduced to virtually its pre-Revolution position, as one European power among many. It should not be thought, though, that the French Revolution era was of no great significance to the history of international law. On the contrary, there were some important developments. But they came not at the hands of frantic revolutionaries in Paris, but instead from a much more staid group of persons on the other side of the English Channel.

Across the Channel In one rather quiet respect, the year 1789 was a notable one for the science of international law. No Bastille was stormed, or “Marseillaise” sung. But the subject did acquire its modern English-language name, compliments of the British reformer and social critic Jeremy Bentham. In his Introduction to the Principles of Morals and Legislation, he employed the adjective “international” to the body of law that governed “the mutual transactions between sovereigns, as such.” The term was, admittedly, not altogether new. Zouche had employed a Latin version of it, ius inter gentes. Bentham’s own source

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was a French writer and political figure, Henri François d’Aguesseau, who served as procurator general of France for many years, as well as chancellor on three different occasions in the early eighteenth century. (His statue silently surveys the passing crowds of Paris in front of the Palais Bourbon.) D’Aguesseau, like Zouche, had opined that “droit entre les gens” (law between nations) would be a better description of the subject, in place of the more traditional “droit des gens” (law of nations). Bentham’s modest contribution was to translate this into English by coining the neologism “international.” In the period just before this, in 1786–89, Bentham had published a series of four brief articles, to which he gave the collective title of “Principles of International Law.” In the first of these, he sought to bring the insights of his utilitarian philosophy to bear on the subject. Bentham famously had no use for abstract concepts of natural rights, of the sort that were soon to boil over in France. Instead, his guiding star was the more down-to-earth concept of utility. In this vein, he proposed that the goal of international law should be “the greatest happiness of all nations taken together.” The last of the four essays was “A Plan for Universal and Perpetual Peace.” It was largely a plea for a twofold program of arms limitation and decolonization. But it also included a proposal for a “common court of judicature” for the international community. He pondered whether an armed force should be formed to enforce the court’s judgments if need be, but decided against it. A better means of ensuring compliance, he thought, would be by force of public opinion. Firm guarantees of freedom of the press in countries throughout the world would be the means by which this opinion would be mobilized. Shortly after that—though owing nothing to Bentham’s inspiration—an international judicial mechanism, of a sort, was actually established. This was a body of the type that became known as a mixed-claims commission, established by the United States and Britain in the Jay Treaty of 1794 (named for its American negotiator). One function of the treaty was to resolve disputes that had arisen between the two countries over some captures of American ships by the British navy in the West Indies in 1793–94, after the outbreak of war between Britain and France. This was to be done by a fivemember commission, comprising members of both states (hence the name “mixed” claims commission). A second body was established to deal with the vexing question of indebtedness by Americans to British creditors. In the commission on ship seizures, the leading dispute was over the lawfulness of

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seizing foodstuffs as contraband of war. The issue was decided in the Americans’ favor, meaning that such seizures were not lawful. The tribunal sat until 1804, making awards of damage of some £1.3 million to American claimants, and some $110,000 to British ones. One other noteworthy legal advance in the English-speaking world occurred in the period of the French Revolutionary wars. This was the evolution of a substantial body of important case law on various aspects of maritime war—most of all on issues of neutrality—from the British admiralty courts. The most outstanding figure was William Scott (who, much later, became Lord Stowell). Originally from Newcastle, Scott was a highly capable lawyer and a general bon vivant (being a member of Samuel Johnson’s literary and artistic circle). In his court judgments, he revealed himself as a stylist to rival even Vattel. He may also be thought of as perhaps the supreme figure in the pragmatic tradition, along with Martens. His judgments showed a close familiarity with the actual practices of maritime affairs, in both peace and war (including a keen nose for fraud and skulduggery). He relied on this knowledge as the best evidence of the state of international law in the cases that came before him. In Scott’s opinion, international law was founded on “the usages and practices of nations” rather than on “mere speculative general principles.” It would therefore be wrong, he maintained, to give effect to “general theory . . . independent of all practice.” Scott conceded that the law of nations was “introduced” by general principles, but then immediately cautioned that “it travels with these principles only to a certain extent: and, if it stops there, [a judge is] not at liberty to go farther, and to say, that mere general speculations would bear you out in a further progress.” He announced his determination to “take my stand on the ancient and universal practice of mankind; and say that as far as that practice has gone, I am willing to go; and where it has thought proper to stop, there I must stop likewise.” Scott nonetheless made invaluable contributions to international law, by clarifying and fleshing out the details of existing practices. He was a consummate fi ller of gaps, if not a maker of daring leaps. His most important judgments were in the area of maritime neutrality, and most outstandingly to the detailed elaboration of the law relating to blockade. He also laid the foundation for what later became known as the law of unneutral ser vice, which was the law dealing with actions by supposedly neutral states that as-

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sisted the war effort of a belligerent, the classic example being the carriage of troops. Even if Scott’s admiralty court was not a court of the English common law, Scott stands out as the most quintessentially English of all major figures in the history of international law, patiently building the law on a piecemeal basis, in the manner of a coral reef. He never wrote a treatise. But his judgments still sparkle over a gap of two centuries and more. For the most part, however, international law was not a judge-made corpus, in the manner of the English common law. We have seen that its major builders were systematic thinkers in the rationalist tradition, or else pragmatists like Bynkershoek and Martens, who paid attention to the whole range of state practice— including treaties and national legislation—in addition to court decisions. Scott’s work was therefore very influential within the English-speaking world, but little noted outside it. Nevertheless, the overall trend continued to be in the direction of the pragmatists over the rationalists. This trend was even reinforced by the French Revolution because of the unsettling association between political radicalism and appeals to natural law and natural rights. The final defeat of France in 1815 naturally served to discredit, at least to some extent, the subversive ideas that had animated it. In the coming century, the dominant role of the pragmatists would go much further yet, and the extreme state practice end of the international-law spectrum would begin to attract an important crowd. The ants would contest the field with the spiders and the bees.

III A Positive Century (1815–1914)

There is no law of nations outside of the customs followed by nations and the obligations contracted by States. —Théophile Funck- Brentano and Albert Sorel

 At the beginning and the ending points of the (postrevolutionary) nineteenth century, the world was treated to two highly contrasting spectacles in international relations. In 1814–15, the victorious powers in the recent French Revolutionary Wars convened in Vienna. At the opposite end of the century, in 1899, delegates from twenty-six states met in The Hague for a peace conference of a very different sort. These two gatherings presented contrasts in a number of instructive ways. In terms of stylishness, there was no comparison. The Congress of Vienna was a gathering of the fashionable and festive, as well as of the victorious—one of the great social events of the century. By comparison, The Hague Peace Conference was a drab affair (although it, too, had an ample social calendar alongside the conference business), with an abundance of frock coats and a shortage of colorful personalities. Another striking contrast between the two events was the visibility of international lawyers. At Vienna, these exotic creatures were scarcely in evidence. The only international lawyer of note on the scene was a German named Johann Ludwig Klüber, and he appears to have been a freelance, not connected to—or consulted by—any of the state delegations. He was a gatherer of documents who went on to compile a multivolume history of the conference (and also to write a treatise on international law). Present as well, but even less conspicuously, was a lawyer from Florence named Lorenzo Collini, who was the secretary of the Crusca Academy (a Tuscan literary body). He helpfully (and anonymously) supplied the statesmen at the Congress of Vienna with twenty-five copies of a draft code of international law—which did not, however, find its way onto the congress’s agenda. Things were very different at The Hague. International lawyers were very much in evidence in all of the major state delegations and some of the minor ones. A great deal of the conference’s substantive work, in fact, was legal business, relating to the laws of war and arbitration of disputes. The high standing of lawyers was indicated by the impressive official description accorded to them: “scientific delegates.” That label summed up, as succinctly as possible, what had happened to international law over the preceding

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century. It had become scientific in the nineteenth-century sense of that term—meaning a body of knowledge based on observation and experiment rather than on speculation and deductive reasoning. More specifically, international law had embraced the fashionable “positive philosophy” of the age, the creed of science and progress. In so doing, it had paid the necessary entry fee. That is, it had discarded a great deal—and for some lawyers, even all—of the venerable legacy of natural law. Much of the older critical spirit of international legal writing was lost in this process. No longer would writers cheerfully proclaim, as Vattel did, that their outpourings would be (and were intended to be) critical of the ways of statesmen. Now it would be conceded that it was those very statesmen who actually made international law by way of state practice. The task of international lawyers was to record and systematize this process, not to criticize it. The mission of the new scientific lawyer was to be an apolitical craftsman, not a harping social critic. But if international lawyers lost much of their critical edge in this period, they gained very greatly in other ways. They acquired access to the inner circles of power, for one thing, even if was more in the role of servant than of policy maker. No one pretended that it was the task of international lawyers to make policy, but their ser vices were required for implementation. In the international sphere, in short, lawyers were coming to function as the mechanics who labored behind the scenes to keep the juridical machinery of everyday life humming smoothly. There were many in the international-law community who chafed at these limitations. Some natural-law partisans—whose ranks were now greatly attenuated—continued to dream of power as the servant of law rather than vice versa. Other lawyers pledged allegiance to some of the other new trends of the time: to popular nationalism, a legacy of the French Revolution that even the fashionistas of Vienna were unable to bottle up; or to liberalism, with its entrancing calls for liberation, democracy, and human rights. There were glimmerings, too, of sociological perspectives on international law. The nineteenth century, in short, was an age of great achievement in international law as in so many other walks of life. (How curious, then, that a major book on the subject has never been written.) There were landmark advances in a host of fields—from the laws of war, to arbitration, to the rise of multilateral treaty making, and (not least) to the emergence of international law itself as a (more or less) organized profession.

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It was an age, too, of contradiction (as all ages are). The palpable sense of progress was allied to a deep conservatism. International lawyers were more essential to the smooth working of the world than ever before, but they were also less visible. If they were more scientific than before, they were also more subservient to power. The nineteenth century was truly a heroic age of international law, but one that was singularly lacking in heroes. No international lawyer in the period achieved a degree of public renown approaching that of Grotius or Vattel. None achieved the public stature of a Clarence Darrow, a Daniel Webster, a John Marshall, or a Blackstone. We will meet with two Nobel Peace Prize winners in the course of our history of this period. But they are little remembered save in specialist circles. Despite all of this, it was in the nineteenth century that international law as we know it today took shape. All of the major intellectual trends of the twentieth and twenty-first centuries had their origins in this era (with the conspicuous exception of natural law, which is much older)—even if some had no more than their earliest glimmerings. Whether we should be grateful to our ancestors for what we have so largely become might be a matter for some earnest debate. But at a minimum, we should take full note of their achievements and of the legacies that they left.

chapter six

Breaking with the Past

y  –  , French revolutionaries and their grand principles were in very bad odor—at least in the eyes of the governments of the allied states that had defeated revolutionary (and imperial) France, after more than twenty arduous years of war. Among the products of the revolution that the victorious powers were determined to bury were appeals to natural rights against established authority. It had become all too apparent how much damage could be done by persons whom the British politician and polemicist Edmund Burke derided as “speculatists,” with their grandiose plans for the wholesale replacement of a corrupt present with a rational future. Burke had nothing but scorn for “those extravagant and presumptuous speculations” that lead revolutionary leaders “to despise all their predecessors, and all their contemporaries.” The proper course of action, in his opinion, is to build on the solid basis of the past, and always with due regard to the concrete realities of human experience. International lawyers in the nineteenth century—an unrevolutionary group if ever there was one—largely followed Burke’s advice. Ironically, in so doing they made a revolution of their own. The monarch they overthrew was not, however, of human flesh. It was natural law. It is true that natural law had been gradually loosening its grip over lawyers—at least those of the Grotian persuasion—throughout the eighteenth century. But the nineteenthcentury positivists went a decisive step further, by rejecting natural law wholesale and in principle, instead of merely reducing their reliance on it, as writers like Bynkershoek and Martens had previously done. International lawyers would now, for the first time, begin to congregate at the extreme pragmatic end of the international-law spectrum. The age of the ants had arrived.

B

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This principled rejection of natural law lay at the heart of the positivist philosophy of international law. It was not, in reality, a single philosophy. It came in three quite distinct variations. But those variations were capable of intermingling—if not always very harmoniously—into a broad, if loose, synthesis to which the label “mainstream positivism” will be given.

Dethroning the Law of Nature The self-proclaimed inventor and champion of the “positive philosophy” was an imaginative and eccentric French writer named Auguste Comte, who expounded it, at six-volume length, in 1830–42. He presented it as the third and culminating stage in the evolution of the collective human mind. It was contrasted to the two benighted eras that had preceded it: the theological and the metaphysical. In the theological age, priesthoods and religiousbased systems generally were in the dominant position. Metaphysical reasoning was seen as the preserve, most outstandingly, of lawyers—meaning natural lawyers, who dealt, in hypothetico-deductive fashion, with abstract principles and “absolute notions” of various kinds. The positive approach, in contrast, focused on immediate causation for its explanations, and not on appeals to ultimate first principles. Comte was not the first person to think in these terms. He had an eminent medieval forebear in the fourteenth-century English philosopher William of Ockham, who championed what he called “real science,” as opposed to the prevailing “rational science.”  Real science dealt with individual concrete things and was founded on observation and experiment. Rational science, in contrast, dealt with concepts and propositions and abstractions. Its dominant method was logic. The opinions of William of Ockham, to put it mildly, did not prevail in his time. He was accused of heresy (though was apparently carried off by the Black Death before his trial could take place). Comte was optimistic that, in the nineteenth century, the time at last was ripe for the triumph of real science over its rational foe. His positive philosophy, like William of Ockham’s real science, envisaged taking the world as it found it, in all its concreteness and richness, and investigating it with an open mind, divested of the mystical philosophical baggage of the theologians and the metaphysicians.

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Two features of Comte’s positive philosophy are of particular note. One is of a negative character, and the other a positive. On the negative side was a principled antirationalist stance. From this part of its heritage, positivism has always had more than a whiff of anti-intellectualism about it. On the positive side, the new philosophy sounded a powerful tone of optimism. It was a doctrine of liberation from the chains of the past and the inauguration of a great future. It had a reformist, progressive outlook that was much in character with the ethos of the nineteenth century generally. As such, it became a quasi-religious creed for reformers, progressives, and modernists everywhere. In Latin America, its hold was especially strong—most of all in Brazil, where positivist adherents in the Brazilian military were instrumental in the overthrow of the monarchy in 1889. They promptly placed the positivist motto “Order and Progress” onto the Brazilian flag, where it remains today. At the same time, it should not be thought that Comte was in favor of violent revolution. Far from it. His temperament was actually staunchly authoritarian. He had little use for democracy, let alone for revolution, and the positivist utopia that he foresaw for the future was a decidedly regimented society. It is no accident that the first major academic stronghold of positivism was the Polytechnic in France (the elite military academy). The positive philosophy even penetrated the very heartland of the archmetaphysicians, the lawyers. The term “positive law” was long familiar, having apparently been first employed in the thirteenth century by canon lawyers. It simply meant man-made law in contrast to natural law. Its foremost medieval exponent was Marsilius of Padua in the fourteenth century. He was, fittingly, a contemporary of William of Ockham and even a fellow refugee of William’s at the court of Louis of Bavaria. Positivism, as a legal philosophy, entailed taking the decisive step of denying legal status altogether to natural law as a matter of principle, and insisting on positive law as the only kind of law. A doctrinaire positivism of this kind had a very long (though distant) pedigree in the legalist school of thought of ancient China. In the Western tradition, however, it was a nineteenthcentury novelty. Its seminal figure was the British lawyer John Austin, a professor of jurisprudence at the newly founded University of London in the period 1826–32. Austin was inspired not by Comte’s “positive philosophy” (which had not been formulated at the time) but rather by its British counterpart, the utilitarian philosophy of Jeremy Bentham.

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At the core of Austin’s positivist theory of law was the insistence that law, properly speaking, must be seen as a system of commands and sanctions (i.e., enforcement actions), rather than of abstract, general norms, as it was in the natural-law scheme. “[E]very law simply and strictly so called,” Austin pronounced, “is set by a sovereign person, or a sovereign body . . . , to a member or members of the independent political society wherein that person or body is sovereign.” When that law is disobeyed, a sanction will fall upon the wrongdoer with at least a moderately high degree of certainty. Moreover, Austin had a very strict view of what actually counted as a true sanction: punishment inflicted by the sovereign upon the misbehaving subject. Given these exacting requirements, Austin had little difficulty in excluding international law from the category of law in the strict sense. Most fundamentally, the international system was fatally handicapped by the absence of a sovereign. Its rules (so called) were, in his opinion, merely “opinions or sentiments among nations generally” and, for that reason, could not be regarded as truly law. International lawyers, not surprisingly, dissented from this extreme conclusion—while at the same time generally endorsing the “positive philosophy” as applied to law. The three major ways in which they went about this will be described presently. More immediately, it is well to point out certain core features that were shared by positivist international lawyers of all persuasions. Three of these in particular should be noted, all of which are aspects of a single underlying goal: to transform international law into a science, in the modern sense of that term—meaning, in essence, a body of knowledge gained by dispassionate study of the real world, and not in abstract and logical speculations about that world. First and foremost of the general features of this new science—and the defining feature of positivism as a philosophy of international law—was the principled rejection of natural law as law in the true and proper sense. The British lawyer William Edward Hall forthrightly contrasted the two opposing conceptions of international law. One comprised “logical applications of principles of right to international relations,” while the other (the positivist one) looked to “the concrete rules actually in use.” (Hall pumped unequivocally for the latter.) In much the same spirit, the American jurist Oliver Wendell Holmes Jr. scornfully dismissed the writings of natural lawyers—the “the à priori men,” as he derisively termed them. “The life of the law,” insisted Holmes (ever ready with a memorable phrase), “has not been logic: it has been experience.”

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In place of natural law as the ultimate source of international law, the positivists substituted the will of the states themselves. There was room for disagreement as to how this will was formed and expressed—and in fact it was divergence on this point that largely distinguished the three variants of positivism from one another. There was agreement, though, on the vital principle of the centrality of will over reason in the making of law. International law, in the positivist picture, was a body of law that was made by the states themselves for their own purposes. It was not a reflection of transcendental, universal, eternal norms, as natural lawyers held. Instead, it was a practical system, man-made in origin and for the ser vice of purely human ends. Where natural lawyers had sought to bend the conduct of states and rulers in the direction of a preexisting corpus of law, positivist lawyers held that the law must turn in the direction of state practice. A second key feature of positivism in all of its varieties was a focus on method or process as the most fundamental aspect of international law. A clear model was offered by the natural sciences, which were coming to be regarded chiefly as a methodical, dispassionate process for the discovery of knowledge—rather than as a systematic corpus of knowledge seen as a “finished product.” In a similar vein, international law, in its new scientific guise, would be seen primarily as a method for discovering what the law is, and for the forging of new law. This meant that law was now seen as being in a constant state of flux—inevitably defying the efforts of now-discredited natural lawyers to encapsulate it into a corpus of substantive fi xed principles. Positivism, in short, represented a triumph of method over system. A third feature of positivism in general was its insistence on distinguishing law from morality. An important early figure here was Kant, who had strongly insisted on the radically different character of the two. Law, he maintained, is a realm of command and coercion. Its function is to compel persons to behave in certain prescribed ways, and to punish them if they stray. Morality, in sharpest contrast, is a realm of freedom. More strictly, morality is a realm of laws or of rules—but, crucially, of laws or rules that are freely self-made by each moral actor individually. Kant can hardly be placed among the positivists, since his primary interest was in these selfimposed rules of morality—but his distinction between the two classes of rules became (and remains) a key feature of the positivist outlook. The concern of the positivist lawyer was, of course, with law rather than ethics or morality. More specifically, the task of the positivist lawyer was to know

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what the law actually is. Questions of what the law should be were for moral philosophers and other such dreamers. This point has commonly been put in terms of the distinction between “is” and “ought”—a dichotomy famously insisted on by the Scottish philosopher David Hume in the eighteenth century. The scientific lawyer deals with the is. Metaphysicians, moralists, and other such speculators traffic in the ought. With these general points in mind, it is now possible to explore nineteenthcentury positivism in somewhat more detail—and in doing so, to take careful note of the three distinct versions in which it came.

The Three Variants of Positivism Nineteenth-century positivism came in, broadly speaking, three variant forms. A lack of attention on historians’ part has left them without accepted labels, but descriptive titles can be readily proferred. The first may be termed the “empirical” variant. It could as easily be called the “inductive” approach (and sometimes has been). It stressed the making of international law by the collective action of the states themselves, primarily in the form of customary law. The second version will be termed the “common-will” approach. It focused on international law as arising out of explicit agreements between states, chiefly in the form of written treaties. The third variant is the “voluntarist” approach, which stressed international legal obligations as arising out of the voluntary acceptance of rules by each state individually, on its own. In the briefest possible summation, it may be said that the empirical approach was based on state practice, the common-will version on agreement, and the voluntarist variant on individual state will. The empirical perspective was an organic outgrowth of the pragmatic wing of the Grotian tradition of the seventeenth and eighteenth centuries. The other two were innovations of the nineteenth century.

The Empirical Variant The core belief of the empirical (or inductive) variant of positivism was the thesis that the content of international law is (or at least should be) discerned on an empirical and observational basis, by a close study of actual

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state practice. The general scientific ethos of positivism as an observational discipline was most in evidence here. The principal data were envisaged to come from the records of history and state practice. The general ethos of the empirical variant of positivism was aptly summed up in Justice Holmes’s crisp assertion that “a page of history is worth a volume of logic.” Of the three avatars of positivism, this one had the greatest measure of continuity with prior international-law thought. It was a direct and obvious successor to the pragmatic tradition of the seventeenth and eighteenth centuries, which extended from Zouche to Martens. Those writers are, however, best regarded as forerunners of positivism and not as true positivists because they stopped short of denying the very existence of natural law. It was that crucial step that was new in the nineteenth century. In terms of Bacon’s biological analogy, the empirical positivists would be regarded as ants—compiling data from state practice but pointedly not resorting to speculation to go beyond what the data reveal. The approach of Martens illustrates this point clearly. Martens was the quintessential practitioner of the way of the bee, in Bacon’s analogy. That is to say, he placed a powerful stress on state practice in his treatise. But he was also careful to explain that, in doing so, his concern was evidentiary rather than philosophical. He regarded the analysis of state practice as an effective means by which deeper fundamental principles of law could be inferred. And his ultimate concern was with those fundamental underlying principles, and not with state practice for its own sake. It was on this crucial point that the nineteenth-century empirical positivists parted company with their pragmatist forebears. They downplayed the existence of abstract basic principles in favor of specific, individual rules of law inferred from state practice alone. Stated in technical legal parlance, it would be said that the nineteenth-century positivists (of the empirical stripe) held state practice to be constitutive of law, rather than as merely providing evidence for the law. In other words, it saw state practice as actually making law, instead of merely revealing it. Martens could therefore be called a positivist in terms of his method but not in terms of his actual philosophy of law. The transition from the pragmatic wing of the Grotian tradition to the empirical positivism of the nineteenth century was neither conspicuous nor abrupt. It was never announced in programmatic fashion or by a manifesto, in (for example) the way that Comte had proclaimed the birth of his positive

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philosophy. It attained its position of dominance by way of gradual conversion rather than sudden conquest. An instructive demonstration of positivism’s incremental emergence into its dominant role is provided by the American writer Henry Wheaton. His principal early contribution to law had been as a reporter of the judgments of the U.S. Supreme Court (from 1816–27). After this, he served as chargé d’affaires for his country in Denmark, followed by a long stint as ambassador to Prussia. In the course of this diplomatic work, he produced his Elements of International Law (1836)—the first systematic treatment of the subject by an English-speaking writer. The book was a great success—comparable even to that of Vattel—going into many editions, as well as being translated into various foreign languages. It was in the pragmatic Grotian tradition, broadly in the vein of Martens. It did not reject natural law on principle. Wheaton, however, was willing to credit natural law with no greater role than as “a remote foundation” of international law. “[T]he immediate viable basis” of the subject, he stated, is “the customs, usages, and conventions [i.e., treaties]” observed by states in their mutual relations. The spirit of positivism was most evident in the way that the treatise was organized. Wheaton’s very first topic was the sources of international law, in sharp contrast to Wolff and Vattel, who had begun with long discourses on states and government in general. The question of how international law is made was now assuming a central position in legal writing. Perhaps the first major writer to take an overtly positivist stance was the German scholar August Heffter. Originally from Saxony, he became a professor at the Universities of Bonn, Halle, and finally Berlin. The first edition of his treatise was written in 1844 in German. It was translated into French and eventually extended to eight editions. He may fairly be regarded as the first true positivist writer in international law, in the sense of expressly denying the existence (or at least the relevance) of natural law. Close on his heels was an English writer named Richard Wildman, who insisted (in 1849) that the precepts of natural law “can impose no legal obligation until they are sanctioned by usage or legislative authority, and thus pass into law.” One of the leading figures of the empirical tradition of positivism was the Argentinian publicist and diplomat Carlos Calvo. Born in Montevideo in present-day Uruguay, he was educated in Buenos Aires and then settled in Brazil. After the fall of the Argentine dictatorship of Manuel Rosas, he

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returned to Argentina and became a member of the Chamber of Deputies. In 1852, he entered the Argentine consular ser vice and later served as his country’s ambassador to Russia, Austria, Prussia, and France. He also did diplomatic work for the papacy. Calvo’s first scholarly contribution to international law was a translation of Wheaton into Spanish. The first edition of his own treatise, in Spanish, was published in 1868. It devoted massive, even obsessive, attention to recent and contemporary state practice, ballooning in size until, by the fift h edition of 1896, it consisted of six very fat volumes. In the early editions of the work, Calvo explicitly contrasted what he called “idealist” and the “positive” approaches to international law, although by the third edition he altered “idealist” to “natural law.” His own approach, he forthrightly asserted, was the positive one, speaking “the language of facts” and being guided throughout, in true scientific spirit, by a “rigid impartiality.” In general, it may be said that the empirical variant of positivism held the greatest sway in the Anglo-Saxon world. Its attraction to English-speaking lawyers is readily explained by the clear similarity of its empirical and inductive approach to the methods of the English common law, which was, in large part, a law gathered from the practice of courts (in contrast to statutory law). In fact, a particularly distinctive feature of English-speaking international lawyers, from the nineteenth century onward, would be the high regard in which they held judicial decisions (such as Scott’s admiralty-court judgments) as sources of international law. Among the English-speaking lawyers in the empirical positivist tradition may be mentioned several British writers of the late nineteenth and early twentieth centuries. William Edward Hall was an independent, selfsupporting writer—a “gentleman-scholar” in somewhat outdated parlance— with a strikingly clear and accessible writing style. John Westlake, from Cornwall, was a professor of international law at Cambridge University in the late nineteenth and early twentieth centuries, and the foremost British scholar of his time. Thomas J. Lawrence, a British lawyer, worked on both sides of the Atlantic, teaching for a time at the University of Chicago in the United States and at the University of Bristol in England. The empirical variant of positivism attracted some support among Frenchspeaking writers, too. An example is the first major textbook on the subject, by Théophile Funck-Brentano and Albert Sorel. Funck-Brentano, a native

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of Luxembourg, was a professor at the École libre des sciences politiques in Paris, with sociology as his principal field. Sorel did diplomatic work at the French Foreign Office for some six years before becoming a professor, like his coauthor, at the École libre des sciences politiques. His academic work was primarily in the field of diplomatic history. He was also a poet and novelist, whose literary polish won him election to the venerable Académie française. Their treatise was published in 1877. Another notable figure was Alphonse Rivier. Originally from Lausanne in Switzerland, he was educated in Germany and became a professor first at the University of Berne and then at the University of Brussels. The single most forthright presentation of the empirical version of positivism came from a German who transplanted himself to Britain, Lassa Oppenheim. Originally from the vicinity of Frankfurt, he taught at the Universities of Freiberg and Basel in Switzerland—though in criminal law rather than international law. He moved to Britain in 1895, apparently for health reasons, becoming a British national five years later. He shifted his interest to international law, which he taught first at the newly founded London School of Economics and then (from 1908–19) at Cambridge as Westlake’s successor in the Whewell professorship. His massive work, International Law: A Treatise, first published in 1905–6, became something of an unofficial canonical summation of international law, at least for British lawyers. In an article published in the American Journal of International Law in 1908—entitled, appropriately, “The Science of International Law”—Oppenheim set out what remains the finest exposition of the empirical approach to positivism. Of the distinctive features of this variant of positivism, two should be singled out for special emphasis. First was a powerful focus on custom, instead of treaties, as the major source of international law. Law was seen—as in all versions of positivism—as a product of will. For partisans of the empirical viewpoint, this meant the collective will of the international community at large. Oppenheim, for example, flatly held customary law to be, in essence, the sole basis of international law. Treaties, of course, are legally binding on the parties to them, but only in the sense that contracts are binding on private parties in national law. Underlying the whole of treaty law is the fundamental customary-law rule that treaties must be observed—pacta sunt servanda. Customary law, in turn, is to be discerned by the close and impartial study of the actual practice of states in their everyday relations—

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unclouded by moralistic or natural-law sentiments as to what the practice of states should be. The second distinctive feature of the empirical variant of positivism was a focus on sanctions. This arose as a solution to a serious problem that bedeviled the empirical positivists: how to distinguish a true rule of customary law from a mere common practice of states—that is, from mere “usage,” in the common expression. In principle, there were various possibilities. But the answer that was most commonly (though not unanimously) settled on was that the presence of a sanction is the hallmark of a rule of law. If a state departs from a practice that is merely a usage, then it will simply be permitted to go its own way as it wishes. But if it departs from a rule of law, then it exposes itself to sanctions from other states—specifically, from any state that suffers an injury from the breach. This approach to customary law, it will be observed, was in keeping with Austin’s emphasis on sanctions as an essential feature of law. It was only necessary for international lawyers to take a broader and more relaxed view of what counts as a sanction than Austin had. Austin, it will be recalled, had insisted that a sanction must be a punishment inflicted by a sovereign upon its subjects. International lawyers maintained that a sanction can consist of any kind of negative reaction to a breach of a rule. It could comprise, for example, a reprisal action, or a rupture of diplomatic relations, or the denunciation of a treaty. At its most extreme, it could be a resort to war. The important point, though, is that international lawyers recognized that, with self-help measures as the principal reaction to wrongdoing, the sanctioning power of international law must be understood to be diff used throughout the legal system and not concentrated in the hands of a single entity, as Austin had demanded.

The Common-will Variant At the core of the common-will variant of positivism was the belief that rules of international law are the fruit of agreements between states. A rule of law, according to this theory, is generated by the conjoined wills of two (or more) states, most obviously in the form of a written treaty. Treaties were accordingly regarded as the archetypal source of international legal obligations (instead of custom in the case of the empirical school).

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The two most prominent spokesmen of the common-will variant of positivism were Heinrich Triepel, from Germany, and Dionisio Anzilotti, from Italy. Triepel was a native of Leipzig. He was not wholly, or even primarily, an international lawyer but a constitutional lawyer as well. His influence in international law in Germany, however, was immense. He taught at the Universities of Leipzig, Tübingen, Kiel, and Berlin. Anzilotti—later saluted as “that prince of positivism” —became one of the foremost figures in the entire history of international law. He was from Tuscany and taught law at the Universities of Florence, Bologna, Palermo, and Rome. He also served as a legal adviser to the Italian foreign ministry and later became a longserving judge on the World Court. The common-will variant of positivism placed its main emphasis on treaties, but it did not deny the existence of customary law. It merely insisted that customary law itself, properly understood, consists simply of agreements between states. The only difference is that customary rules are tacit agreements, while treaties are written. In other words, there was an insistence that customary law must be seen as contractual in character, in essentially the same way that treaties are. In the common-will version of positivism, there was comparatively little stress on sanctions. Triepel was very careful to explain that the imposition of a sanction is a separate issue from the presence of a binding rule of law. This insistence on a separation of sanction from obligation is not surprising, given the stress placed on express agreement as the source of legal obligation. A state that expressly agrees to accept an obligation can reasonably be expected to carry it out. Therefore, coercive measures to compel performance would be expected to play, at most, only a very marginal role. Two especially distinctive features of this version of positivism should be carefully noted. The first is the positing of a sharp dichotomy between two kinds of treaties: a “contract-treaty” (Vertrag in German, or traité-contrat in French), and a “law-treaty” (Vereinbarung in German, or traité-loi in French). A contract-treaty, as the name implies, is a mere contract and not a true law. It is an arrangement between states to achieve some immediate, specific, material goal. This is a treaty of the kind that Pufendorf had in mind when he excluded treaties from the realm of true international law. A law-treaty, in contrast, establishes a general rule of conduct that is intended to remain in force for an indefinite duration. It represents the common

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will of the two parties, in the sense that each party is placed under precisely the same obligation as the other. A contract-treaty, in contrast, is a compromise arrangement, in which the two parties undertake to perform different tasks in order to achieve the immediate goal sought. For example, one party agrees to lend money, while the other agrees to borrow and repay. Only in cases in which the two parties bind themselves to the same rules can there be said to be a truly common will at work. In a contract-treaty, there is merely a juxtaposition of individual wills, with each party willing something different from the other. A law-treaty could therefore be regarded as, in effect, an act of international legislation on the part of the contracting parties—though with the important proviso that this “legislation” must have the actual consent of each party that is to be obligated by it. As Triepel explained, a law-treaty (or Vereinbarung) is an “objective law.” An illustration that he gave of the difference between the two types of treaty was in the area of extradition. An ad hoc arrangement between two states for the extradition of a specified individual from the one state to the other would be a contract-treaty. One state agrees to dispatch the accused person, while the other state agrees to receive him. But a treaty that provides for extradition of persons generally, according to specified criteria, and intended to be in force indefinitely, would be a law-treaty. The reason is that, over the long run, both parties would send and both would receive, pursuant to the same set of rules. This seemingly arcane distinction did carry some practical implications. Perhaps the most important was with regard to the termination of treaties. A contract-treaty could (at least arguably) be terminated freely at the will of either party to it. Since a contract-treaty is only a conjunction of individual wills, without an overarching common will above, a change of mind by either party destroys the very basis of the arrangement. That is not so for a law-treaty. Once the law is in place, the parties are inescapably bound by it, just as individual citizens are bound by statutes of their national legislatures. The only way that a law-treaty can be terminated is by the adoption of a later law-treaty that supersedes it—precisely in the manner of legislation in domestic law, which remains in force until and unless it is superseded by later legislation. This means that all parties to the law-treaty must consent to the change. There is an analogous difference, too, regarding breaches of a treaty. If a contract-treaty is breached by one of the parties, then the other one has

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a  right to declare the treaty rescinded. But that is not so for a law-treaty, which remains in force in the face of a breach and is terminable only by the joint will of all the parties. Here too, the analogy with legislation is apparent. A breach of a statute by one person (such as the commission of a criminal offense) does not absolve other persons from obeying the law themselves. In other words, the parties to a law-treaty are “locked in” once the treaty is concluded (i.e., once the rule of law in question is “enacted”), but parties to a contract-treaty are not. The second major distinctive feature of the common-will variant of positivism was its insistence upon a rigid separation between international law and national law. Triepel was again the leading figure here, with Anzilotti lending strong support. This belief has been labeled as “dualism” by international lawyers, for obvious reasons. The rationale behind it was simple. The two systems of law (national and international) were held to emanate from quite distinct sources. National law arises from the unilateral will of a given state, typically articulated in a written constitution or basic law of some kind. International law, in contrast, arises out of the common will of a plurality of states, which is both different from and superior to the individual wills of the contracting states. This distinctiveness of sources is reinforced by a difference in the field of application of the two kinds of law. National law is directed at the conduct of private parties, while international law governs the mutual relations between states as such. An interesting challenge to this dualist picture is a situation in which a state is prohibited by its national law from doing something that is required of it by international law. An example would be a treaty that required extradition of any person, regardless of nationality, matched against a constitutional ban on the extradition of nationals to foreign states. When the extradition of a national of the state is sought, a direct conflict between the two obligations occurs. Which law prevails in such a case? Anzilotti was ready with an answer to this. He contended that, strictly speaking, the apparent contradiction is only an illusion. The reason is that, within each of the two systems—considered independently of one another—there is no contradiction. International law unambiguously requires one outcome, while national law, equally unambiguously, requires another. There is therefore no clash between the two systems of law, as such.

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It remains the case, though, that the state is in a dilemma. If it adheres to its constitution, then it must breach its treaty obligation. Conversely, if it fulfills the treaty obligation, then it must violate the constitution. The government of the state therefore cannot avoid making an agonizing choice between these two courses of action. Anzilotti’s point, however, is that it is the state itself that faces this dilemma, not either of the two systems of law. The legal systems both remain free of ambiguity or contradiction—and resolutely independent of one another. The real “solution” to this dilemma, then, is that governments should be scrupulously vigilant and take the utmost care that they do not carelessly incur incompatible obligations. The situation at hand, in other words, is merely a demonstration of government negligence, not of any conflict between the two systems of law per se. To a layperson (and many lawyers, too), this line of reasoning might be thought to have an aura of artificiality or of “logic chopping.” It must be remembered, though, that positivists were, in general, strongly committed to taking a rigorously scientific, or logical, view of law. As in the natural sciences, conclusions will sometimes emerge that appear startlingly nonintuitive to nonlawyers. Then so be it. The task of the modern scientific lawyer is the relentless pursuit of truth, wherever it might lead, and however strange the results might appear to be at first glance. Concerning the common-will version of positivism in general, it may be objected—and it was—that it is not really properly positivist at all. The reason is that the necessary basis of this system is the underlying principle of adherence to contracts (pacta sunt servanda). And this core principle, it may be argued, can only be a principle of natural law. It had been so regarded since at least the time of Hobbes. It may be contended, therefore, that the common will merely determines the content of legal obligations, and that it is the natural-law principle of pacta sunt servanda which actually makes agreements legally binding on the parties. Triepel accommodated this critique by conceding that international law rests, ultimately, on a nonpositivist foundation—not on natural law, but rather on general human psychology. Anzilotti was not willing to make such a concession. In the early part of his career (prior to a later change of mind on the subject), he insisted on seeing the common will of states as binding in its own right, with no need for a nontreaty foundation. He contended

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that the general principle of pacta sunt servanda is itself the product of agreement by states, that is, that its status as a fundamental principle of law derives from its own inherent value and is not conferred by some outside agent.

The Voluntarist Variant The essence of the voluntarist version of positivism was its central stress on the will of the state as the source of law. Hence the selection of the label, from the Latin voluntas, meaning will. By will was meant, in this case, the will of individual states, autonomously formed. The empirical and the common-will schools, in contrast, emphasized the collective wills of states, expressed in customary form in the one case and in treaty form in the other. Of the three approaches, this one will be the least familiar to modern observers—at least outside of Germany, where it chiefly flourished. Some care must be taken to appreciate that what was meant by the will of a state was the will of the state as such, and not the will of the government or rulers of that state at any given time. There was therefore a firm insistence on states as real persons in the eyes of the law. A notable precursor of the theory of the real personality of the state was Hobbes, who had insisted that the sovereign as the sole authority who embodied the will of any given state. More recent, and relevant, was the writing of the eighteenth-century French literary figure, political writer, and all-around controversialist Jean-Jacques Rousseau. He advanced the concept of a General Will animating society—a will that was pointedly regarded as distinct from the individual wills of the members of the state. “The body politic,” he pronounced, “is . . . a corporate being possessed of a will.” The true task of the members of society, in Rousseau’s theory, was not to pursue their own individual self-interests, but instead to discern the content of the General Will of the society itself and to promote that. Similar ideas were advanced by the renowned German philosopher Georg Friedrich Hegel. Originally from Stuttgart, in the Duchy of Württemberg, Hegel first studied theology but then taught philosophy, first at the Universities of Jena and Heidelberg and then, from 1818, at the University of Berlin, where he achieved wide renown. The relevant part of Hegel’s philosophy, for present purposes, was the belief that the only way that a person can live the most fulfilling kind of life is as a member of a political society—with the

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clear implication that the society, rather than the individual members of that society, is the fundamental unit of social life and, more broadly, of the world historical process. In the sphere of legal thought, these ideas found their foremost spokesman in the Prussian scholar Otto von Gierke, who was a follower of Hegel. He was a legal historian, not an international lawyer. But he made a major contribution to the voluntarist variant of positivist thought by firmly insisting, in the spirit of Rousseau, on the real personality of the state. This notion became one of the key tenets of “neo-Hegelian” legal thought, which flourished, chiefly in Germany, in the late nineteenth century. Neo-Hegelianism was basically a combination of the philosophy of Hegel with the insights of the historical school of law, which was another of the major innovations of the nineteenth century. Its principal champion was the German lawyer Friedrich Carl von Savigny, a Roman-law scholar who taught at the University of Berlin—incidentally overlapping with Hegel. At the core of the historical school was the idea that each society possesses its own distinct ethos: its own set of customs, historical experiences, literary and artistic expression, ways of thinking—and legal tradition, too. On this theory, there can be no single overarching universal standard or ideal type of law to be applied worldwide. Instead, there is an assortment of distinctive national traditions, none of which is reducible to any other. It is readily apparent that this belief entails a rejection of natural law, with its cosmopolitan, universalist ethos—thereby making the historical school, in an important sense, a staunch ally of positivism. This pluralistic outlook of the historical school, when combined with the collectivist ethos of Hegel’s philosophy, resulted in a school of thought that exalted the sovereignty of individual states to previously unknown heights. This neo-Hegelian outlook was decidedly inward-looking, insisting on each state as the sole judge of its own interests and goals. Each state was regarded as being embarked on a mission of fulfilling its own unique destiny, determined by its own unique social, economic, religious, and historical makeup. The task of the members of the society was to devote themselves to the furthering of that great collective mission. In retrospect, it is all too easy to see in neo-Hegelianism some worrying premonitions of fascism. So high a value did the neo-Hegelian writers place on state sovereignty that they insisted that what was commonly referred to as “international law”

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was, in reality, merely the sovereign state’s own national law applied to the area of foreign relations—often called “external state law” (Das äussere Staatsrecht), on the precedent of Hegel himself. This reflected the essence of the voluntarist position: that the individual sovereigns of each state are the sole authorities who can make or accept law for that state, and that no external agency can impose legal obligations on a state against its will. It is not difficult to see that this approach comes extremely close to denying the possibility of international law altogether. It may be noted that this voluntarist theory entails the rejection of the dualist outlook of the common-will school. (In general, the voluntarists were scornful opponents of the common-will adherents.) According to the voluntarists, the difference in subject matter between domestic law and international law is merely a superficial one. Fundamentally, to the voluntarists, all law is the product of a single source: the will of single, individual states. Consequently, there can be no fundamental difference between national and international law. A leading early figure of the voluntarist persuasion was Adolf Lasson. He came from a Jewish family (named Lazarussohn) in Mecklenburg-Strelitz but converted to Christianity and altered his surname. His university studies, at the University of Berlin, included philosophy and classical philology as well as law. His teaching, too, was wide-ranging, including philosophy and German literature. Expertise in the history of religion led to a major study of the fourteenth-century German mystical figure Meister Eckhart—an interest that accurately reflected a strongly antirationalist philosophical outlook on Lasson’s part. Inspired by the German victories of the 1866 war against Austria, Lasson published Princip und Zukunft des Völkerrechts (Principle and Future of International Law) in 1871, the leading text of neo-Hegeliansim. In it, he denied the existence of an international community in any meaningful sense. International law, he maintained, can have no greater ambition than the adjustment and coordination of the autonomous wills of the various individual states. To the extent that states happen to share certain common objectives, rules can readily be devised to further those goals, to introduce a measure of order and predictability into the process. But international law, he contended, cannot dictate conduct to a state contrary to that state’s will. “The state,” he asserted, “can . . . never submit to a legal order, nor, in fact, to any

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will outside of itself. The state that prevails between states is therefore a completely lawless one.” Another pioneering figure in the voluntarist school of thought was a Baltic German named Carl Bergbohm. As a native of Riga in Latvia, from a merchant family, he was a subject of the Russian Empire. He was educated at the University of Dorpat (or Tartu), in Estonia, where he became an associate professor. Of all of the nineteenth-century positivists, he was probably the most forceful and dogmatic in his hostility to natural law. He could see—and denounce—natural-law tendencies in even some of the unlikeliest writers, including Heffter and even Austin himself. As a dogged controversialist, he made a number of enemies. But he made an early impression in the field of international law, when his master’s dissertation was published in 1877 as Staatsverträge und Gesetze als Quellen des Völkerrechts (State Treaties and Laws as Sources of International Law). This book strongly pressed the thesis of state will as the basis of international law—with that will expressed most prominently in the form of treaties. Consistently with this stance, he regarded multilateral treaties as the principal means for developing a body of general international law—though even that general law must be limited in its application to states that are actually parties to the treaties in question. Later in his career, in 1895, Bergbohm moved to the University of Bonn, which became a bastion of neo-Hegelianism. Its leading figure was Philipp Zorn. Originally from Bavaria, and the son of a pastor, he taught law at the Universities of Bern and Königsberg, before moving to Bonn in 1900. Zorn had admirers in high places, becoming a legal adviser to German Kaiser William II, as well as tutor to the crown prince in the subjects of constitutional and canon law. In due course, Zorn was succeeded by his son Albert as the leading figure in the Bonn School. The great hope of the neo-Hegelians, though, in the early twentieth century was an energetic and ambitious German scholar named Erich Kaufmann. In 1912, he became a professor of law at the University of Kiel. Much would be heard of him, in various voices, over the coming years. But in his earliest phase, he was “the most uncompromising of the Hegelians.” He was a disciple of Gierke, to whom he dedicated his first major academic work in 1911, on the subject of the right of states to repudiate treaties when they ceased to serve the function originally intended by their parties.

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In time, a somewhat more moderate form of voluntarism was advanced, which was able to accommodate international law more readily than doctrinaire neo-Hegelianism. The leading figure in this development was Georg Jellinek. Originally from Austria, he was the son of a famous preacher in Vienna’s Jewish community. At the University of Vienna, he studied philosophy and history of art along with law and then, in 1879, became a professor of law at that institution. He moved to the University of Basel in 1889 and to Heidelberg two years later, where he taught international law, along with public law generally, for the remainder of his career. Jellinek, incidentally, had a brother who was a prominent figure in the nascent German automobile industry—and who, in 1901, arranged to have a German auto model named after his daughter Mercedès. Mercedès’s uncle achieved a different form of renown (not entailing status as a household name) by devising a juridical model of “auto”—in the form, that is, of a theory known as “autolimitation.” As the name implies, the basic idea was that state sovereignty could be limited by self-imposed constraints even if no external authority existed that could restrict it. The idea of autolimitation grew out of the philosophy of Kant, for whom voluntary adherence to rules of law or ethics was seen as the highest form of moral conduct. Acting morally because one is compelled to do so by some superior authority, under threat of punishment, represents, from this perspective, merely the appearance of morality and not its true essence, which is the spontaneous or self-directed doing of good. Application of this line of reasoning in the sphere of politics (as opposed to personal ethics) led to the concept known (in German) as the Rechtsstaat (law state). This refers to a state that elects, of its own free will, to operate according to the rule of law. The term was popularized in the framework of constitutional law by a German scholar named Robert von Mohl. It was also supported by the prominent Roman-law scholar and legal philosopher Rudolf von Jhering. The Rechtsstaat meant a state that governs by means of the rule of law, and not by mere momentary whim. Strictly speaking, a sovereign could govern by mere whim, since there is no external agent to constrain it from so doing. But that would involve the state’s acting inconsistently with its own inherent nature—which is to act methodically and rationally, rather than arbitrarily and capriciously. The state, then, is “compelled” (so to speak) to act according to law—compelled, however, not by the commands of an ex-

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ternal authority but rather by its own intrinsic nature. There are legal limitations, then, on state action; but they are self-imposed. The autolimitation concept was potentially a very fertile one. It could explain, for example, the key principle of pacta sunt servanda—and thereby account for the whole of treaty law. States appreciate the value of stability in their relations with one another, and each state readily perceives, on its own, that a general rule requiring adherence to treaties is to its own real advantage. In other words, each state independently adopts the principle of pacta sunt servanda as a guiding rule for itself. The voluntarist version of positivism, and the autolimitation thesis specifically, came to be associated with neo-Kantian modes of thought. The essence of the neo-Kantian picture of international law was Kant’s opinion that the essential task of law is to coordinate the independent wills of the actors in a system, with a view to maximizing both individual freedom of action and due respect for the rights of fellow actors, in some kind of combination. It is an application of Kant’s original conception of a political society as “a relationship among free men” who “retain their freedom within the general union with their fellows.”  The aim of international law is not to coerce states from, as it were, outside or above, but instead “to preserve and secure the freedom of each state in itself, along with that of the other . . . states.” Kant characterized this idea as a vision of a “free federation.” Kant’s alternative to the Hobbesian world of anarchy and perpetual conflict was not to institute a sovereign, but instead to devise a system in which all of the agents would be left with their freedom—but would exercise that freedom in a spirit of self-restraint and mutual respect. The neo-Kantian solution was broadly in this spirit. What it added to Kant’s original analysis were the concepts of the Rechtsstaat and autolimitation. These were the means by which the necessary ethos of self-restraint would be infused into international affairs. The most important value underpinning the system— and the ultimate source of international order—was a shared ethic of reciprocity. No state can claim anything for itself that it would refuse to concede to another. It is readily apparent that neo-Kantianism is an optimist’s charter, directly reflecting Kant’s confidence that “a respect for the concept of right” is an inherent and ineradicable feature of human beings. The neo-Kantian international lawyers held much the same opinion, in the form of their concept of

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the Rechtsstaat. Their solution to the challenge of world order was not to install a global sovereign to bring about order by force of command (Hobbes’s solution to the anarchy of the primeval state of nature). Instead, it was to leave each state free to pursue its own policies—while at the same time duly respecting the rights of other states. The result is a world that is both anarchic (i.e., having no central authority) and peaceful. This neo-Kantian perspective, it should be appreciated, is an archetypal picture of an emergent system of order—that is, of a system in which there is no central authority and no external enforcement mechanism. Order emerges because each actor, on its own, in the rational pursuit of its self-interest, sees fit to constrain its own behavior in certain ways. Underpinning this system is a shared ethic of rationality and reciprocity—and also of self-discipline. Nevertheless, it was always conceded by the autolimitation theorists that the individual states are the primary actors, with international law being secondary, in the sense that it is a product of their action. As Jellinek succinctly put it, “International law exists for states, not states for international law.” The voluntarist variant of positivism, then, presents a somewhat paradoxical appearance, at least on first acquaintance. On the one hand, it was radically state-centered, to the point of being open to the accusation of denying the very existence or possibility of international law. At the same time, though, it accepted that relations between states are law-governed and that states do not possess a license to act arbitrarily. The law that governed interstate relations is not a single framework, applied to the states from the outside. Instead, it is a sort of confederation or aggregation of separate bodies of law, each crafted by one individual state for application to itself. International law, then, does exist. But it exists not because of customary practices, or the conclusion of law treaties, but because the self-drafted legal codes of the various individual states are sufficiently similar and self-restraining in nature—with the end result that the rights and interests of other states are accorded due respect. It may be observed that this approach to law bears a striking resemblance to the conclusions of the Axelrod experiment on cooperation. Each actor in the competition acted entirely selfishly, pursuant to (literally) a selfdevised program. But the result was not chaos or conflict. It became apparent that a consistent policy of reciprocity and cooperation paid the highest rewards—and it emerged from the competition between programs as the

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best one to follow, on purely rational, utilitarian grounds. The Axelrod experiment, to be sure, was conducted in somewhat artificial conditions, in a framework vastly simpler than that of world affairs in general. But it does provide some grounds for believing that the neo-Kantian dream of order emerging from an underlying regime of freedom might not be so far-fetched.

The Synthesis—Mainstream Positivism It is evident from the preceding survey that the three versions of positivism could, with some justice, be regarded as being so distinct from one another as to make it impossible for them to be placed under a single label without serious distortion. But there were substantial overlaps between them, to the point that it proved possible to bring them into a sort of rough harmony by making some judicious compromises, reinterpretations, or de-emphases of various aspects of the three systems. The result was an amalgamation— though not always a very tidy or logical one—of the three variants. For lack of a generally accepted label, this amalgamation will be referred to as “mainstream positivism.” Dualism provides a good illustration of the manner in which a core belief of one school could be shared by the others without undue difficulty. The empiricists, most obviously, had little trouble adopting it. The reason was that the core idea—that national law and international law have different sources—made intuitive sense to the empiricists, even though that notion was not a central feature of their approach. The voluntarists, in contrast, rejected dualism in principle. But even they could agree readily enough with one of its main implications: that it is not possible for international law to impose rules into the internal laws of states. Dualism accordingly became one of the features of mainstream positivism, even though there was not actually thoroughgoing agreement on its nature and content. For the most part, the mainstream positivist synthesis comprised elements of thought that were common property to the three variants, even if the contributions of one or another to particular issues were more conspicuous. There can be, of course, no question of mainstream positivism being a single monolithic doctrine. Nor is it possible (or necessary) to give an exhaustive

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account of it here. It will suffice to note its most salient features, on which there was at least a broad consensus.

Pluralism and the Sovereign Equality of States There is no difficulty in pinpointing the idea that is at the very core of mainstream positivism: the fundamental principle of the sovereign equality of states. Mainstream positivism, in other words, was, above all, a state-centered perspective on international law. Very tightly connected to this core principle was a thoroughgoing pluralistic ethos. In this respect, positivism’s affinity with the historical school of law is especially evident. It has been observed that one of the fundamental beliefs of the historical school was that cultures possess their own unique, distinctive coherence and that direct comparisons, according to some kind of universal scale, are impossible in principle. Mainstream positivism was in accord with this. The implication of this belief is easily seen. Each state must necessarily be the sole judge of what political, economic, social, and legal system to adopt. The task of international law therefore is not—and cannot be—to homogenize the world into a single great society. Instead, its task must be a more modest one: to devise ways in which the fundamentally and ineradicably different units of world society can “rub along” with one another without undue resort to violence. Mainstream positivism, in other words, readily accepted that the world is, at root, essentially anarchic. International law must therefore be seen—with all due modesty—as a modus vivendi, or practical formula for coping with this condition, rather than a nascent world government. It will immediately be noted that theories about universal rights of individuals, exercisable in any and all political and legal systems, are fundamentally foreign to this way of thinking. Just as obviously, the idea of the legal equality of states comes naturally, since each society—large or small, rich or poor—has an equal right to determine its own destiny. This principle of the sovereign equality of states remains to the present day as the foundational principle of international law. Just as easily arrived at is the principle of nonintervention—which indeed is hardly more than a mere rephrasing of the concept of sovereign equality of states. The right of states to determine their own national laws and ways

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of life, by definition, precludes others from stepping in uninvited and dictating policies or forms of government. Positivists tended to hold that this principle of nonintervention must hold true even in extreme cases, such as instances of shocking mistreatment of subjects by their rulers. Humanitarians might be in favor of foreign intervention to put a stop to the oppression. But positivists were disposed to go no further than to hold that, while humanitarian intervention (as it came to be labeled) might be morally justifiable, it must nonetheless be held—with all of the cold dispassion of the true scientist—to be legally impermissible. In some respects, these ideas of the sovereign equality of states and the principle of nonintervention were nothing new. It has been observed that Pufendorf articulated them in the seventeenth century, as did Wolff and Vattel in the eighteenth. But with the disappearance of natural law, these ideas had greater power and more profound implications than before. Pufendorf and Vattel had asserted the independence of states from one another (i.e., the principle of nonintervention), but they had insisted states nonetheless always remained subject to natural law, which was a kind of impersonal sovereign, reigning over the teeming mass of mutually independent states. Once that overriding authority of natural law was stripped away, state sovereignty meant much more than it previously had. It meant that states were not merely independent of the will or command of their fellow sovereigns. It meant that no law at all constrained the acts of states—except, of course, laws accepted by the states themselves of their own free will. Mainstream positivism, in short, was a radical charter of freedom for states, to the point of holding state sovereignty to be more fundamental than the rule of law itself.

The Fundamental Rights of States Closely related to the cornerstone concept of the sovereign equality of states was the notion of fundamental rights of states. Natural law had been, to a very large extent, a law regarding duties of states rather than rights. This had been particularly clear in Wolff ’s exposition (followed by Vattel), in which the duties of states were carefully classified into two categories: obligations of a state to itself and obligations to other states. Natural law did, however, recognize certain fundamental rights of individuals. Aquinas had

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identified two of them: a right of self-preservation and a right to propagate the human species through marriage and the bearing and rearing of children. The nineteenth-century positivists took this basic idea—and the right of self-preservation most of all—and applied it to states rather than individuals. A more immediate model for the positivists was Hobbes, who had strongly insisted on a fundamental right of security as a core principle of his natural-law system. In the original state of nature, this right had belonged to individuals (there were no states at that time). But after states were established—and living in a state of nature vis-à-vis one another—it became easy to think of the principle of self-preservation as being applicable to them. It was especially easy for lawyers of the voluntarist persuasion to think in this fashion, with their insistence on the real personality of the state. Just as individuals could be said to possess fundamental rights, so could states. Other positivists were less enamored of the idea. Westlake, for example, from the empiricist camp, did not favor it. Nor did Anzilotti, from the common-will school. Nevertheless, the idea did achieve general support. Among the empiricist group, it had the endorsement of Heffter, Wheaton, Calvo, Hall, and Oppenheim. The most obvious of the fundamental rights of states was self-preservation, or self-defense. This received its first significant airing in international law in the wake of an incident involving Britain and the United States. In 1837, in the course of a rebellion in the British colony of Upper Canada, the British authorities mounted a cross-border raid into U.S. territory for the purpose of taking action against a ship named the Caroline, which was widely known to be involved in taking arms supplies from U.S. territory to the Canadian insurgents. The Caroline was captured in a daring night raid, taken from its mooring into the Niagara River, set on fire, and left to drift over the famous falls (with a loss of several lives). There was an outcry in the United States over this penetration of the national territory by a foreign armed force, and several years later, in 1841–42, the governments of the two countries presented their views of the relevant law. They were substantially at one on the basic principles. Lord Ashburton, the British foreign minister, asserted self-defense to be “the first law of our nature”—with the consequence that, in the face of “a strong overpowering necessity,” steps could be taken that would not be allowed in the ordinary

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course of things—such as mounting an armed incursion into another state’s territory in time of peace. The American Secretary of State (and renowned lawyer) Daniel Webster agreed, although he did insist that the emergency in question had to be extreme. In words that are well known to international lawyers to the present day, Webster cautioned that there must be “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment deliberation.” The important point for present purposes is the acceptance of the principle of the overriding importance of the right of self-preservation (or self-defense)—to the point that, when activated, it trumps the normal, everyday rights of states. (In the event, the dispute over the Caroline incident was resolved amicably, largely in Britain’s favor.)

International Law as a Consensual System One of the most important tenets of mainstream positivism was that international law is a system more or less consciously created by the states of the world. First came the states, with their inherent, fundamental rights, and then, from their initiative, came international law. International law is therefore, from this standpoint, a system in which the states of the world—which are primordially free and independent—voluntarily choose to subject themselves to certain legal constraints. The basis of legal obligation, in the positivist scheme, is therefore the freely given consent of the parties to be bound (i.e., the states). The three variants of positivism were in disagreement as to just how this consent comes about. According to the empirical school, it is expressed through customary practice by the states collectively. According to the common-will school, it arises from explicit agreement to the concluding of a law treaty. According to the voluntarists, it occurs by way of self-restraint, or autolimitation. The three schools were in agreement, though, on the fundamental thesis that consent is the basis of law. A consensual picture of law directly implies a contractual perspective. This was obvious enough in the case of written treaties. But for customary law, too, there was venerable authority. It will be recalled that, in the seventeenth and eighteenth centuries, the prevailing view, from Suárez and Grotius onward, was that customary law is, in reality, a tacit agreement between

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states, corresponding to treaties, which are express agreements. As such, customary rules, like treaties, can be binding only on the states that actually participate in their formation. This contractual interpretation of customary law was carried through into the nineteenth (and twentieth) centuries, with relatively little change. The context in which the contractual view of customary law operated was, however, very different now. Previously, customary law had been of relatively little significance, since natural law had been seen as the dominant body of law—and natural law, by its nature, was binding on all states without regard to consent. With natural law now discarded by the positivists, international law must now be, perforce, in its entirety, a “bottom-up” system rather than a “top-down” one. That is, it is a system made entirely by the states themselves, with no element of imposition from above. This state of affairs had a number of highly important implications. For one thing, it implied that there is, effectively, no such thing as universal international law. In the extreme marginal case, of course, there could theoretically be a treaty to which literally every state in the world was a party, or a customary practice in which every single state participated. But these are unrealistic scenarios. The reality is that each state must have its own “menu” of legal obligations to which it is subject, depending on what agreements it has elected to enter into. Another implication of this contractual picture was that, in the absence of agreement between states, a rule of law could not be said to exist. There is, in other words, an ever-present possibility of gaps—meaning situations to which no legal rule is applicable. This is in sharp contrast to natural law, which was essentially a comprehensive, gapless system. It is true that natural law was sometimes not sufficiently detailed to give a definitive answer to a specific problem—but that was a matter of the fineness of focus rather than of the thoroughness of coverage. In principle, natural law always had an answer to any problem. Indeed, how else could the treatises of Grotius and Wolff have been so numbingly thorough? At the same time, though, there was nothing that actually prevented international law from being comprehensive. There was even a general hope that, over the course of time, the goal of completeness might be attained. But the degree of richness and detail of the law necessarily depends, at any given time, on the extent to which the states have consented to submit to

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various rules. The current state of international law was readily acknowledged to be primitive in that the range of agreement between states was, as yet, fairly limited. This consensualist thesis had a further immediate consequence: if there was no rule prohibiting a given course of conduct, then that conduct must be deemed permissible. This conclusion would later be given the grand-sounding label of the “principle of freedom”—referring, of course, to the freedom of states, not of individuals. It may be observed that this “principle of freedom” is a kind of negative counterpart of the idea of fundamental rights of states. The fundamental rights thesis posited that certain positive rights belong to states, as a matter of law. The “principle of freedom” merely holds that, if no rule of law exists regarding some matter, then states are left free to do as they like. But both of these notions clearly reflect the centrality of state will and state sovereignty. This consensual, or contractual, picture of international law was summed up by the apt expression that international law must be seen as a law between states rather than as a law above states. In another common formulation, positivist international law was stated to be a law of coordination rather than a law of subordination.

The Nature of International Society A contractual image of international law, combined with the general pluralistic ethos of positivism, strongly implies a fragmented world—a congeries of different contractual groups without any overall framework or guidance. There might be a high degree of coherence within various self-selected groups. But it would be difficult to claim that, in the absence of some kind of universal system (such as natural law), there could be a true international community comprising all of the states of the world. Wolff could envisage a global “supreme state,” but only by invoking natural law to bring it about. Positivists did not have access to that form of assistance. There was actually some division among the three variants of positivism on this point. Furthest removed from any conception of an international community were the voluntarists, with their emphasis on the independent wills of individual states. The empiricists were the nearest to accepting some notion of a genuine international society, since the very idea of customary

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law seems to imply at least some kind of community of broadly like-minded states. On the whole, though, it is safe to say that positivist writers of all stripes tended to see the independence of states as being more fundamental than membership in a society of states—and, correspondingly, the rights of individual states as more fundamental than the demands of good citizenship that might be imposed by a community. Mainstream positivism, in other words, strongly tended to be atomistic rather than communitarian in nature. Even from the voluntarist perspective, however, there was not—or not necessarily—a need to despair. For there was nothing to prevent the states of the world from being broadly like-minded and thereby forming themselves into a de facto community. In other words, it is not logically necessary that a world of resolutely independent states must be a Hobbesian one, with the states constantly at one another’s throats. In fact, the neo-Kantian outlook clearly inclined in the opposite direction—holding that it was positively in the self-interest of states to be cooperative and to respect the rights of other states. Even so staunch a neo-Hegelian as Lasson could readily accept that there was, in practice, much scope for interstate cooperation. Positivists could therefore be said to be ready enough to accept the fact of interdependence and cooperation in the real world, even while insisting, as a matter of doctrine, on independence and isolation. Mainstream positivism was not therefore ineluctably committed to a conflictual, Hobbesian picture of the world. It depended—as it always had—on whether some form of the Aristotelian thesis of the natural sociability of humans was accepted. Positivism was compatible with either position on that. Those of an optimistic temperament (i.e., accepting natural sociability) would expect an international world in which conflicts of interest between states would continually occur, but in which a deep fund of general good will would be present and fundamental disagreements largely absent. This was the neo-Kantian frame of mind. A pessimist would expect to see a Hobbesian world of perpetual bloodshed, aggression, and war. And of course, there could also be any blend of these rival images. In this area, too, though, there was much that united the various positivist approaches, despite their differing perspectives. They were united in possessing what might be called a minimalist view of international law, as essentially a conflict-resolution mechanism. The function of international law, from this standpoint, is not the “affirmative” one of building a better world,

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but rather the “negative” one of settling or forestalling disputes. In a pluralistic world of independent states, with no sovereign, it is inevitable that conflicts of opinion and interest will occur, even in a system that is broadly harmonious overall. The task of international law, to a positivist, is to resolve those disputes by recourse to the rule of law instead of “the dice of Mars.” This may seem an excessively narrow and limited understanding of the mission of international law. But it must be admitted that, if it were successfully carried through, then the benefit to the world would be enormous.

International Law as a Historical—and European—Artifact From the basic rejection of natural law, combined with the image of international law as a consensual system based on the will of states, it was the shortest of logical steps to conclude that international law can only be understood as a product of history. Only a study of the actual experiences of states can reveal what agreements states have actually concluded at any given time. Here too, the affinity between the positivists and the historical school of law is clear. Furthermore, it became apparent, when such a close study was duly carried out, that one particular group of states had been responsible for agreeing on the corpus of rules known as international law. These were the countries of Western Europe, together with their overseas offshoots in the Western Hemisphere. So long as international law was seen as an offshoot of natural law, it was difficult—or even impossible—to place the European states in a privileged position. It will be recalled, in this connection, that Innocent IV, in the thirteenth century, had insisted that basic principles of entitlement to exercise sovereignty were global in their application and not confined to Christian powers. With the discarding of natural law, however, that broad cosmopolitan outlook lost its principal support. If international law was strictly a network of agreements between states, then it naturally followed that only states that were actually parties to those agreements were bound by international law. But this rigorously logical conclusion was not a comfortable one. For one thing, it seemed to cut directly against the core positivist principle of the sovereign equality of states. There could readily enough be equality of states within any given historical or cultural group (such as the European countries

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and their offshoots)—but that was equality of only a limited sort. It will presently be seen that this issue was no mere theoretical quibble. It would assume a very great importance as European states entered into relations with non-European states with increasing frequency.

The Modern View of Customary International Law Customary law is especially interesting in the way that it reveals how the various versions of positivism could be amalgamated into a workmanlike— if not strictly logical—synthesis. It is to be expected that the empirical version of positivism would make the leading contribution in this area, since it was the most strongly committed to custom as the primary (or even exclusive) basis of international law. As noted previously, however, the empirical theory had some trouble dealing with the question of how to distinguish a mere usage from a true rule of customary law, if the only evidence available was the de facto practice of states. The principal answer given by the empiricists was to look to the presence or absence of a sanction. But agreement was not universal on this. There was also an annoying logical difficulty: was a sanction present because the customary practice was legally binding, or was the practice binding because there was a sanction attached to its breach? It would seem that the answer must be that a sanction is present because of the legally binding character of the practice. But that led straight back to the problem: what is it that actually makes a practice legally binding in the first place? On this point, the voluntarist variant provided substantial assistance, with its central stress on state will as a source of law. What is necessary to promote a mere usage into a true rule of law, in the voluntarist theory, is an intention on the part of a state that the practice should be legally binding on it. The combining of these two approaches resulted in a doctrine of customary international law that is alive to the present day. This is the idea that customary law has a twofold character: combining the practices of states (i.e., an outward, objective, material element) with an inner, will-based component, which came to be called opinio juris (literally, “opinion of law”). There is a division of labor here. The external state practice serves to define and delimit the content of a given rule. This is a legacy of the empirical approach. The opinio juris—which is basically the decision by the state to accept the

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rule as binding on itself—is the potent force that transmutes a mere pattern of state practice into a rule of law. As such, opinio juris is a sort of élan vital or breath of life, giving legal animation to what otherwise would be a mere chain of events. Alphonse Rivier has been credited with being the first to clearly articulate this twofold picture of custom (albeit without the use of the actual expression “opinio juris”). This splicing together of the empirical and voluntarist stances on customary law has been the source of some awkwardness ever since the nineteenth century, reflecting the precariousness of the alliance between the two positions. For example, there is the question of whether the opinio juris might in some cases be so clear as to obviate the need for a pattern of state practice. Or conversely, it may be wondered whether state practice on a given subject might be so widespread as to allow the opinio juris simply to be presumed to be present. There continue to be questions, too, as to the true nature of the opinio juris and the means by which it is to be discovered. According to the voluntarist position, the required opinio juris must be understood to refer to the will of individual states, unilaterally determined. But the coherence of such a view is clearly dependent on the belief in the real personality of the state, as inherited by the voluntarists from the historical school. The empirical version of positivism could offer an alternative perspective: seeing opinio juris as the collective will of the international community at large, that is, as an expression of what has sometimes been called a common juridical consciousness. This collective will could then be said to be evidenced by the presence of a sanction in cases of violation—so that the sanction is then clearly seen not as the actual source of the obligation, but only the evidence of it. It cannot be said that these questions about the nature of customary law have been satisfactorily resolved even to the present day. But the basic framework of legal thought on this subject represents a synthesis between different versions of nineteenth-century positivism.

On War In no area was the change wrought by positivism in international law so striking as in that of warfare. Most importantly, war provides an instructive illustration of the contractual character of positivist international law at

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work. War is an instructive topic, too, in the way that it reveals the variant positions of the three strands of positivism in action. The empirical version of positivism had little difficulty, at least in theory, in retaining the principal tenets of just-war doctrine. With its focus on sanctions as an essential hallmark of law, the empirical group could readily keep to the old interpretation of war as, in effect, a sanction against wrongdoing. It was, of course, a selfhelp measure, but to international lawyers, a self-help component was entirely compatible with a sanction. The voluntarist approach was strikingly different. With its intense focus on the rights and interests of individual states, it was inclined to see war as an exercise of state policy. To be sure, it would always be to a state’s own advantage to obtain its goals as peacefully, and with as little cost, as possible. But sometimes more drastic measures would be called for. In pursuit of an interest that was sufficiently vital, the extreme step of resorting to war can and will be taken. This might seem to be a formula for unbridled aggression, but the context in which this principle operated must be appreciated. It operated in a world that was law-governed, and in which the freedom of action of states was limited—even if (as noted earlier) the law and the limitations were self-generated and self-imposed by the states individually. It was therefore not envisaged that voluntarism amounted to a license for mere malicious trampling on the rights of others. Rather, it was contended that, when a given state’s own rights and interests are being restricted by another state, then war is permissible, as a last resort, for rectifying the situation. In a certain respect, then, this picture of war was not so different from the just war one: war is permissible as a last resort means of putting a stop to the trespasses of other states. The difference—and it was an important one— was that war was now seen as permissible not only for the vindication of legal rights but also in pursuit of bona fide national interests. War in the mainstream positivist view may be usefully regarded as a form of dueling—by states, that is, rather than by individuals. This analogy reflects the positivist image of war as a contractual arrangement by the parties to settle a quarrel by force of arms. A state of war can then be regarded as a situation in which an agreement is in operation between two disputing parties to settle a dispute by force of arms. In the positivist scheme, there was  no rule of international law prohibiting states from making such an agreement—that is, there was no law against interstate dueling. The “prin-

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ciple of freedom” left states free to choose this option of dispute settlement over others, at will (i.e., at the mutual will of the disputing parties). It is therefore with good reason that the positivist attitude to war has been characterized as one of laissez-faire. Positivist lawyers simply accepted war as an inevitable—even if not quite normal—feature of international relations. In Oppenheim’s terse summation, war was characterized as “but a fact of life for the occurrence of which international law provides a body of rules.” The “body of rules” to which Oppenheim referred were the laws governing the conduct of war—in contrast to rules governing the resort to war, which were now effectively swept away and replaced by policy considerations. In general, then, mainstream positivists took a coolly detached view of war. They could even concede a certain positive value to it, by holding that it could function as a source of new rights. It could be a means by which the legal positions of states could be adjusted to prevailing political realities—in effect, as a way of changing the law. As law reform mechanisms go, it was a decidedly coarse one. But it must be remembered that international law had nothing resembling a legislature that could continually make alterations in the law as called for by changing circumstances. As a result of this, international law was necessarily focused on the identification and safeguarding of existing rights—meaning that it had an innate conservative bias. Without some kind of mechanism for change, international legal relations risked becoming “frozen.” War could function as that mechanism. On this point, the change from just-war doctrine was drastic. It will be recalled that, in classical just-war doctrine, just wars had been seen as conservative in character, as a means for the enforcement of pre-existing rights. A victory in a just war neither created nor destroyed underlying substantive rights. It merely enforced them. This position was discarded by the positivists, who were able to see war as a progressive force, in the strict sense that it could operate to create new rights (and also, of course, to destroy old ones). It may therefore be concluded that mainstream positivism was somewhat ambivalent on the subject of war. It certainly did not support pacifism. It gave states a substantially free rein to elect to settle their quarrels by resorting to arms. It even acknowledged that war had a positive role to play on the international scene, by adjusting the rights of states to the realities of power politics. At the same time, war continued to be regarded as a last-ditch resort, as an exceptional measure, and not as a casual tool of day-to-day interstate

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relations. And there was a strong concern to reduce the horrors and suffering of war by way of rules regulating the conduct of hostilities. In short, and true to its scientific ethos, mainstream positivism took a somewhat clinical picture of war, more in the spirit of a doctor discussing disease than of a blustery conqueror lusting for new territories. An exception to this characterization may be allowed in the case of the more extreme partisans of neo-Hegelian thought. Erich Kaufmann was the most notorious. In his book on treaties in 1911, he made it clear that he had little regard for the optimistic outlook of the neo-Kantians, with their quest for freedom and mutual self-respect. Instead, he looked at war as a great moving force of history. It was the principal means by which a state could achieve the highest degree of internal social solidarity, shared commitment, and mutual dedication—qualities that Hegelian thinkers valued so highly. “[N]ot the community of free willing individuals,” averred Kaufmann, “but the victorious war is the social ideal.” Such an overt glorification of war was, however, highly unusual among international lawyers.

The Technocratic Outlook One final feature of the mainstream positivist synthesis calls for attention: its interesting combination of dynamism and conservatism. This was made possible—and indeed inevitable—by the positivists’ scientific and technocratic self-image. Comte’s positive philosophy had been, at least in its inception, aggressively modernistic, representing a gleeful overthrowing of the past. International lawyers did not, for the most part, adopt this aspect of the new thinking. On the contrary, the international-law version of positivism had a very decidedly conservative cast. This was a legacy, in part, of positivism’s conscious opposition to natural law, which had become associated with the political left. But it was also, in part, a function of positivism’s claim (or ambition) to be a science of law—that is, an objective, neutral, value-free analysis of what the law actually is and how it is made. The single foremost sign of this conservatism was positivism’s insistence on a sharp separation between law and morality, between the “is” and the “ought.” As conscientious legal scientists, the positivists saw their mission as the expounding of what the law actually is—with reform measures, and indeed policy decisions generally, left in the hands of politicians. This was the

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furthest cry from the writing of Vitoria or Grotius, or even Vattel, who had fully accepted that being an expounder of natural law entailed being a fearless critic of those who fell short of its standards. Positivist lawyers accordingly disclaimed any attempt at foreign policy making. That was the task of policiticians, not of scientists. The lawyers’ task was to advise their political masters on the lawfulness or legal implications of contemplated actions—that is, to render strictly objective, dispassionate advice on the basis of rules whose content was determined by rigorous analysis. The point was crisply summed up by an eminent Russian international lawyer named Fedor Fedorovich Martens (no relation to the earlier German Martens): “In a scientific system,” the later Martens flatly averred, “there is no place for political considerations.” On this point, all three versions of positivism were in ready agreement. It has been noted that one of the chief hallmarks of positivism, in all of its varieties, was its focus on method, that is, on how international law is made. This was in marked contrast to natural law, which had concentrated virtually entirely on the substance of law. Natural law had scarcely anything to say about procedural aspects of law, nor anything in detail about such features of everyday life as states or governments. It was, above all else, a system of norms, floating in splendid isolation above the chaotic, messy hurlyburly of everyday life. Moreover, natural law was a static set of norms, never changing. The challenge facing a natural lawyer, therefore, was to determine how this static set of norms could be imposed or imprinted onto the teeming richness of quotidian existence. The positivist outlook was strikingly different. It was fundamentally dynamic in character, in the sense that one of its most important missions is to explain how international law can be changed, so as to meet the demands of the ever-changing conditions in which it had to operate. The three variants of positivism, it is observed, gave different answers to this key question. To the empiricists, international law was made by state practice, which produced customary law. To the common-will school, it was made by the creation of law treaties. To the voluntarists, it was made by the coordination of self-governing units. More fundamental than these disagreements, though, was the broad consensus that international law is made by the states themselves. It is not given to them from on high, for all eternity, in the manner of rationalist natural law.

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On this view of things, there was little (if any) room left for the international lawyer as critic, in the manner of Vitoria or Grotius or Vattel. The task of the lawyer certainly was not to discern the content of natural law, for there was (to the positivist) no such thing. The substantive content of international law is to be determined by means of a careful understanding the method by which it is made. The content of the law is, in essence, whatever it is that the governments of the world have, de facto, decided that it should be. It is not the task of lawyers to sit in judgment over government policy-making. The result of this way of thinking was an apparent paradox. Natural lawyers were, by temperament, social critics, ever striving to bring power to heel under the rule of law. At the same time, though, the law to which they were so devoted was static. It was an unchanging corpus of substantive rules—applicable, to be sure, in widely varying circumstances, but fundamentally unvarying. The nineteenth-century positivists were just the opposite. They were conservatives in the sense that they left governments with a largely free hand to operate as they wished, without any carping or nagging. They were nonjudgmental—perhaps to a fault. But their vision of law and lawmaking was intrinsically dynamic. Constant change was its very essence. In this very particular sense, the positivist lawyers could be called “progressives.” There were those who doubted, though, whether constant change, unleavened by even a scintilla of bracing criticism, was necessarily a good thing. Was it not possible that some kinds of change might be bad rather than good? For the overwhelming part, the positivist lawyers displayed little inclination to ask questions such as this. They saw great progress all around them and were conscious that they were playing a part in it, if only at the humble ministerial level rather than as policy makers. But some lawyers were keenly aware that the new scientific spirit of the positivists had brought losses as well as gains, that “progress” has its costs. One of them was the French lawyer Henry Bonfils, the author of the bestknown French treatise on international law of the late nineteenth century. He complained that positivism “reduces the science [of international law] to the role of a humble servant of practice” and deplored “the absence of critical spirit” among his professional peers. Positivist lawyers, in his opinion, were too subservient to established political authority. As a result, they tended toward partisanship, seeking justifications for institutions or practices that

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they favored on other grounds. “Political considerations” and “patriotic interests,” Bonfils believed, “too often direct their judgements.” There was much truth in Bonfi ls’s lamentation. But he could take some comfort in the fact that, even when its tide surged highest, positivism did not have international legal field all to itself. There were dissenters who kept old dreams alive—and even dreamed some new ones, too.

chapter seven

Dissident Voices

ven at its highest tide, mainstream positivism did not have a monopoly over international legal thought. In fact, the nineteenth century was rich in heterodoxical perspectives on international law—views that, in some cases, would gain greatly in force during the following century. One of these dissident schools of thought was the natural-law tradition, a hardy perennial that managed to survive even in the inauspicious climate of positivism. In addition, three other principal dissident approaches arose in the nineteenth century, or at least came into prominence for the first time. These were liberalism, the nationality school, and solidarism (or the sociological school, as it sometimes known). All four of the dissident schools rejected two of the most central tenets of mainstream state positivism. First, they rebelled against the conservative, technocratic ethos of positivism—against its insistent focus on what the law is, to the exclusion of speculation about what it should be. Instead, they were reformist in outlook, seeking to make international law a vehicle for changing the world (for the better, of course). In this regard, they were all of an optimistic temperament. They did not regard international relations as being inherently conflictual or competitive, and they believed that progress was possible (or even inevitable). The siren call of a glorious future sounded vigorously through all three of these new schools. The second way in which all four of the heterodoxical schools parted company with positivism was in rejecting its state-centered focus. Natural lawyers, as in previous periods, emphasized international law as an overarching system of norms—a system of rules to which states were subject, making states the servants and not the creators of law, as they were for the

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positivists. To the liberals, the principal focus was on individuals. The nationality school concentrated on nations or cultural units, instead of on states, as the fundamental units of international law. And finally, for the solidarists, the dominant unit was the international community as a whole. At the same time, though, none of the three new approaches rejected positivism in its entirety. All of them were compatible with important aspects of it. They should therefore be regarded not as full-scale alternatives to positivism, but instead as shifts in emphasis, as attempts to harness specific aspects of positivism in the cause of reform. In general, the disputes between the schools were measured and polite—probably more so than those between the partisans of the voluntarist and common-will versions of positivism. Conspicuous public feuds and intemperate denunciations were not, for the most part, features of international legal debate. International law attracted, on the whole, a rather genteel crowd—a feature that remains true today to a surprising extent.

The Tenacity of Natural Law For all of the forcefulness of their attacks, the positivists of the nineteenth century never succeeded in wholly eradicating natural law, even if they did keep it on a tight leash. It should be recalled that positivism did not, strictly speaking, require the denial of the existence of natural law—it merely denied it the status of law in the true sense. Even the staunchest positivist could therefore accept natural law as a possible source of inspiration in the making of international law. A second role that was conceded to natural law, even by positivist writers, was as the law controlling relations between advanced European states and the “savage” states of the far parts of the world—a matter that will be considered in due course. In addition, even the most rigorously scientific of positivists could hardly claim their own system to be wholly value-free. It was very difficult—and perhaps impossible—to imagine even a mainstream positivist system being viable without at least some kind of shared value system underpinning it. The shared values, to be sure, might be extremely few in number, as they were for Hobbes. But doing away with them altogether was no easy matter. In this connection, it will be recalled that the neo-Kantian version of positivism was

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very crucially based on an intrinsic sense of law or rightness, combined with the important principle of reciprocity. It was therefore possible for positivists to acknowledge the existence of what was sometimes called a “common juridical conscience.” The German lawyer Franz von Liszt was a believer in this—even as he rejected natural law as a source of law. In a similar vein, the French writer Antoine Pillet, a professor at the University of Grenoble, writing in the 1890s, spoke of what he called “the common law of humanity,” which he held to be distinct from international law. It existed, in his opinion, “outside of and above international society and the law to which it corresponds.”  Some were willing to give the common juridical conscience a somewhat greater role. One of these was the Belgian lawyer Ernest Nys, who taught at the University of Brussels in the late nineteenth and early twentieth centuries. He went so far as to hold the common juridical conscience to be the sole primary source of international law, with custom and treaties being only secondary sources. Such ideas, however, should not be thought of as endorsements of natural law in its full-bodied form—that is, as an elaborately detailed, comprehensive, systematic body of substantive rules. Instead, the notion of the common juridical conscience merely referred, rather loosely, to certain commonsense values, or basic conceptions of justice. These could be admitted to be uniformly held throughout the world without doing undue violence to positivist doctrine. There were, however, some international lawyers who went beyond these general considerations to a more or less forthright endorsement of natural law—at least as a matter of general principle, even if not in the baroque rationalist manner of Grotius or Wolff. For example, a number of writers carried the classical dualistic Grotian outlook on into the nineteenth century, paying little or no heed to the new ways of the positivists. Some writers were more adventuresome, taking natural law itself in somewhat different directions than before. In this category were two major figures: Johann Kaspar Bluntschli and James Lorimer.

The Grotian Tradition Continued There were a number of writers who continued in the dualistic Grotian vein of the seventeenth and eighteenth centuries, seeing international law as an

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alliance between natural and positive law. The spirit of Vattel and G. F. von Martens did not die out. An American writer, Henry W. Halleck, for example, wrote in this vein in 1861, clearly strongly under the influence of Vattel. In Britain, Henry Maine, a prominent figure in the historical school, described international law, in 1888, using words that could have come from Vattel. “There is both a natural and a positive law of nations,” he explained, with positive law being merely “[t]he most useful and practical part.” And even positive law, he contended, derives “much of its force and dignity from the . . . principles of right reason.” In France, Laurent-Basile Hautefeuille was also a notable writer in this tradition. An admiralty lawyer, he wrote an important treatise on the law of neutrality in 1848. In this work, he carefully distinguished, every step of the way, between three kinds of law: natural law (which he called “primitive law”), customary law, and conventional (or treaty) law. Also in this tradition was Andrés Bello, who was the first Latin American to write on international law. He was a man of many facets—poet, linguist, lawyer, and diplomat. A native of the Viceroyalty of New Granada (in presentday Venezuela) in the late eighteenth century, he acted as a tutor early in his career to the young Simon Bolívar and later became acquainted with the renowned scientist, explorer, and philosopher Alexander von Humboldt (even accompanying him on an unsuccessful attempt to climb Mount Ávila in Venezuela). During the Latin American wars of independence, Bello served the insurgent cause as a diplomat, spending nineteen years in London (1810– 29), first in the ser vice of Colombia and then of Chile as well—frequently with his salary in serious arrears. But the time was well spent. He befriended the revolutionary figures Francisco de Miranda and José de San Martin and also became friends with the British utilitarian thinkers Jeremy Bentham and James Mill. Bello’s Principios de derecho de gentes (Principles of the Law of Nations) was published in 1832, prior to the work of Wheaton in the United States (who held Bello in high regard). Two further editions were published up to 1864 (with a slight change of title to Principios de derecho internacional, or Principles of International Law). He wrote squarely in the Grotian tradition, presenting international law as a dual system, combining natural law with positive law. He explained the distinction between them as being that natural law lacked any coercive power and spoke only to the conscience, whereas

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positive law was enforceable law. He was a strong believer in natural law while at the same time conceding that, in practical terms, positive law had the greater importance. A German lawyer named Carl von Kaltenborn was another figure of this persuasion. He wrote a book in 1848 on the forerunners of Grotius. In his rejection of the old rationalistic, hypothetico-deductive style of natural law, he showed clear evidence of positivist tendencies. But he regarded state practice merely as data—with the true task of the legal scientist being to distill theoretical general rules from this body of evidence. In other words, he favored using an inductive method to arrive at a comprehensive, coherent system that would be of eternal and objective validity. Like G. F. von Martens, he may be described as being positivist in his method, but without adopting positivism as a philosophy. Similar in outlook—and much more influential than Kaltenborn—was the French lawyer Henry Bonfils, who was a professor of law at the University of Toulouse. His Manuel de droit international public (Manual of Public International Law), first published in 1894, became the most prominent exposition of the subject in the French-speaking world. In it, he expressly endorsed Grotius’s twofold division of law. The natural-law part of law, he explained, received a variety of different labels—primitive, necessary, absolute, natural, rational, theoretical, and so forth. But the basic idea was that this body was a source of rights and duties in its own right, apart from positive law. Bonfils identified a number of principles that he attributed to this nonpositive source: the right of commercial liberty of states, the law of neutrality, the principle of nonintervention, immunities of states for official acts, the right to conclude treaties, and the principle of pacta sunt servanda. All this was in contrast to positive law, which he characterized as “contingent, variable, secondary.” Squarely in the spirit of Grotius and Vattel, he held this part of international law to be of a lesser status than natural law, as it served merely to regulate matters that natural law theoretically prohibited. He explicitly referred to his outlook as falling into “the eclectic school” of international law.

Bluntschli and Lorimer If natural law continued to survive the blows of the positivists and to be acknowledged by writers throughout the century, a few figures made creative

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contributions to the subject in the nineteenth century. The two principal ones were Johann Kaspar Bluntschli (from Switzerland and Germany) and James Lorimer (from Britain). Bluntschli was a protean figure. Originally Swiss, he studied in Germany, where his primary allegiance was to the historical school of law, with Savigny himself as one of his teachers. He took a teaching position at the University of Zürich but was forced out of it because of political activities. He went to Munich, where he taught constitutional law. In 1861, he moved to the University of Heidelberg, where he remained for the rest of his career. A private law code that he drafted for the city of Zürich in the 1850s became the basis for the Swiss Civil Code. For the major part of his career, he was a political theorist and constitutional-law specialist. His text on the General Theory of the State (1851) won a place on the syllabus at Oxford University and was influential in the United States as well. Tracts on theology and psychology flowed from his fertile pen. Not until he was in his late fifties did he turn his diligent attention to international law, producing a text in the form of a codification of the subject, published in 1868. Natural law, to Bluntschli, was the foundation of international law. But this was not natural law as it been expounded in the Grotian tradition. Rather, it was natural law of an organicist, rather than a rationalist, variety— more akin to the ancient stoics than to the medieval Aristotelians and their successors. Bluntschli regarded natural law in psychological terms, as something hardwired into the psyches of every individual human being— returning, in short, to the idea of natural law as being “written in the hearts of men” (instead of being extracted from the treatises of pedants). Law, posited Bluntschli, “rests more upon human nature [in general] than upon the peculiarities of Peoples” as political collectivities. In the very opening passages of his international law treatise, he asserted that “international law has a solid base and indestructible roots in human nature.” In deference to the prevailing positivist outlook, Bluntschli conceded that “[c]ertainly the free will of man is able to effect and alter in many ways what is right and just.” But he immediately went on to surmise that the greatest part of this [i.e., of human ideas of justice and moral right] has been fi xed from everlasting by the order of the world and the nature of men and circumstances, and is altogether independent of the

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will of men. Most Right is not invented, but discovered and recognised, found not formed. Bluntschli then proceeded to stress that the concept of right (droit) predated that of law (loi). International law, he went on to emphasize, is not merely a balancing of momentary interests. It is “a law of necessary principles, based on the nature of the relations between peoples and on the duties of civilised nations vis-à-vis humanity at large.” Solidly in the spirit of natural-law writing, he distinguished rules that are “simply articles of a treaty” from rules that “are laws by their essence.” Also in the classical spirit of natural law was Bluntschli’s assertion that international law applies over literally the entire globe, rather than being a creation of European civilization specifically. He explicitly rejected the positivist thesis that law is a product of the free will of states, insisting instead— borrowing the terminology of Wolff—that it is a “necessary law” that binds states by its own intrinsic force and merit. Rules of natural law are binding even on states which explicitly repudiate them. In short, Bluntschli rejected the general positivist theory of international law as being essentially contractual in character. He conceded that there may be gaps left—or apparently left—between various specific rules. But they are only apparent and not real, for the very purpose of the science of law is to fill any such gaps by the application of general principles—derived, of course, from natural law. In fact, this question about the possibility of gaps in the law can be regarded as virtually a defining feature of the opposition between positivism and natural law in the nineteenth century (and beyond). Positivists, with their contractual image of international law, naturally concede the existence of empty places in the law in areas where agreement had not been reached by the states. Natural lawyers, in contrast, tend to hold international law to be a comprehensive, gapless system, with any apparent holes to be fi lled (as Bluntschli suggested) by processes such as reasoning by analogy or the application of abstract general principles. States were certainly conceded, in Bluntschli’s opinion, to be free to make various customary arrangements as they wished—but subject to the overriding consideration that these arrangements may not be contrary to natural law. Treaties can be rendered invalid by natural law, as he explained in some detail. He specified four types of treaty that would be invalid on the

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ground of infringement of the rights of humanity: those promoting or protecting slavery, those refusing rights to foreigners, those infringing the freedom of the seas, and those persecuting certain religions. Two other kinds of treaty would be void for violation of international (i.e., natural) law: those providing for world domination by a single power, and those directed toward the violent suppression of another state. Bluntschli, in other words, gave the first forthright account of what later international lawyers would refer to as “peremptory norms” of international law—norms that, because of their intrinsic importance, have a higher status than ordinary customary or treaty law. The second major spokesman for natural law was James Lorimer, from Scotland, a close contemporary of Bluntshli’s. He studied first at the University of Edinburgh and then in continental Europe, where his chief interest was in the natural sciences. He later remarked that he learned more law from his chemistry teacher than from his law professors. He practiced law for a time in Scotland (without success) and then gravitated into academic life, becoming professor of law at the University of Edinburgh in Scotland and taking the chair of the law of nature and nations in 1862. Lorimer was an heir—perhaps the last one—to the Scottish tradition of “commonsense” philosophy of the eighteenth century. A devoutly religious man, he dutifully placed God at the pinnacle of international law. He resembled Bluntschli—whom he greatly admired—in being more of the organicist turn of mind than the rationalist. Appropriately, he was an admirer of the ancient stoics. Toward the historical school, he formed a special antipathy. In his Institutes of International Law, published in 1883, he announced that his goal was “to place International Law on deeper and more stable foundations than . . . convention” (i.e., the consent of states). More specifically, he sought explicitly to base international law on “a science of nature.” Unlike Bluntschli, Lorimer was a forthright critic of positivism, deriding it as “objectless groping amongst lifeless facts and life-destroying fictions.” In short, he scornfully asserted, “the positivist pistol has no lead in it.” He bluntly asserted positive law to be “merely declaratory”—meaning that it is merely a summation of law, and not legally binding in its own right. It was also of relatively recent vintage. Natural law, in contrast, has existed between nations since the very dawn of history itself. Positivism was disdained as mere “empirical jurisprudence,” capable of producing only “a haphazard

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system of international law.” Natural law, on the other hand, is rooted in “the permanent laws of human nature.” Far from being ashamed of speculation as a method of legal science, he lamented that lawyers did too little speculating rather than too much. He candidly revealed his allegiance to the rationalist tradition of natural law by holding the creation of a systematic body of law to be “a labour of the closet.” In distancing himself so pointedly from positivism, Lorimer stressed two important tenets of his own thought: first, an “ethical element” in international law and second, the importance of the interdependence of the states of the world with one another, instead of their independence. Regarding the ethical element, his perspective was, to put it mildly, a broad one. In a spirit distinctly reminiscent of the ancient stoics, he voiced the belief “that the universe, as a whole, is an ethical as well as a physical cosmos.” It was on the question of interdependence that Lorimer’s distinctiveness was most in evidence. He identified two extreme schools of thought on this subject. One of them was labeled the “national” school, also termed the “negative” or “patriotic.” It stressed the independence and isolation of states—the vision held by mainstream state positivists. Lorimer bluntly condemned this as a “lawless doctrine.” At the opposite extreme was the position that he termed “cosmopolitan,” or alternatively “philanthropic.” This extreme cosmopolitan viewpoint regarded states as altogether absent from the picture, with the whole of humanity functioning as a single society. Lorimer announced his task to be the steering of a middle way between these two. He would accept the existence and autonomy of states—but, crucially, “not apart from, but in and through the recognition of international dependence.” Lorimer’s middle way was clearly more compatible with the cosmopolitan position than with its opposite. Lorimer was overtly critical of voluntarism for attempting to build international law on the excessively unstable foundation of the concordant wills of states. He had a low opinion of treaty law generally, regarding it as “a mere makeshift.”  Treaty-based systems—and voluntarist systems in general— have the fatal weakness of requiring unanimity among the parties. “The moment that one of the parties changes its mind,” he objected, “the unanimity ceases, and the basis on which the treaty rested is cut away.” He had a much higher opinion of customary law—which he regarded, like the historical school, as being essentially legislative rather than contractual in character. He

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held custom to be superior to treaties in being more flexible. Custom, in his opinion, is “an intermediate stage through which opinions or conceptions ought almost always to pass, before assuming the form of enacted law.” Of all the major international-law writers of the nineteenth century, Lorimer stood most conspicuously apart. His Institutes reads like no other legal treatise in its general organization and the extent of its philosophical explorations. That his book exercised little influence will hardly come as a surprise. At the same time, though, he was not isolated or shunned by other lawyers, but, on the contrary, was an active participant in professional activities. His acute analytical mind was much respected, even if the particular path that he blazed attracted no fellow explorers.

Liberalism Of the heterodoxical approaches to international law, liberalism was the least well expounded in the nineteenth century. No single treatise set it out in a systematic fashion, nor was any single professional lawyer strongly identified with it. The reason is that it was not (and never has been) a doctrine of international law per se, but rather a general philosophy of economics and politics with important implications for international law. Only in the twentieth century would liberalism blossom into something like a school of international law. But its foundations were solidly laid during the present period. Liberalism had—and retains to this day—strong affinities with natural law, in that it was based on a set of very general propositions about human society. Society was seen as fundamentally harmonious. Th is harmony arose, on the liberal view, not out of a natural sociability of individual persons. Instead, it arose out of a belief that, in a society in which the powers of government were strictly limited, and in which freedom of individuals was correspondingly large, an “invisible hand” (in the famous phrase of Adam Smith) would guide those individuals into the most suitable, and productive, areas of activity—ultimately to the maximum benefit of the society at large. This picture was a sort of social counterpart of the Newtonian conception of celestial mechanics. Central to this liberal vision—and indeed at the very definitional heart of it—was a belief in, and commitment to, the empowerment of individuals at

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the expense of governments. In the legal sphere in general, this empowerment took three principal forms. First was economic freedom, in the form of free trade in goods, as well as free movement of persons and capital. Second was political freedom, in the sense of holding governments to account for the wishes of the governed—insisting, that is, that governments exist to serve individuals, not vice versa. Third was the protection of the liberties of individuals against the intrusions and abuses of governments.

Freedom of Trade Liberalism began to be placed onto a systematic, scientific footing in the middle of the eighteenth century by the French physiocrats. It has been observed that their beliefs (as well as their label) were rooted in natural law. They harbored a belief in a deep natural rhythm or equilibrium in the social and economic worlds that—if allowed to operate unimpeded—would ineluctably bring about, by its own force, the maximum possible benefit for humankind at large. It was no accident that their leader, François Quesnay, was a physician. His major contribution to the science of economics was the famous tableau économique, which purported to trace out the flows of agricultural goods throughout the economy, in the manner of a physician tracing the paths of fluids within the human body—thereby demonstrating the need to keep those passages uninterrupted, for the continued good health of what could be called, truly, the “body politic.” Consequently, there is an urgent need to remove the myriad governmental distortions and interferences that prevent the natural mechanism from working smoothly. Highest on the physiocratic target list were the various programs under the general label of mercantilism—the elaborate network of monopolies, subsidies, taxes, quotas, employment restrictions, and sumptuary laws—that had the effect of diverting the natural flows and rhythms of the economy into artificial channels. “Laissez faire, laissez passer,” a phrase coined by A. R. J. Turgot in 1757, became their most famous motto. (Like all good propagandists, the physiocrats were very prolific in the production of mottoes.) This clarion call applied most directly to the dismantling of barriers to the free flow of grain between the provinces of France, with the immediate purpose of allowing supplies to flow freely from places of surplus to places of shortage so as to avert famines.

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It was primarily British political economists who took up the physiocratic ideas and applied them more widely. The leading figures were both Scots: David Hume and Adam Smith (who were close personal friends). They were both of the natural-law persuasion, in the sense that they sought to articulate the general principles along which the social world operated, in the way that Newton had done for the celestial realm. Smith’s famous treatise on The Wealth of Nations (1776) became the fundamental text of economic liberalism. This was followed up in the early nineteenth century by the writing of David Ricardo, who expounded the principle of comparative advantage, which was the conceptual heart of the liberal theory of free trade. Crucial to the effective operation of a liberal economic system is the liberty of individuals to respond to the demands of free markets. A liberal economic regime is therefore a radically decentralized system of production, relying on the discipline of markets rather than on the imperious commands of pompous bureaucrats or feudal magnates. Some positive actions by governments are admittedly necessary, such as rigorous enforcement of private contracts and the provision of public security. The major point, though, is that the role of government is to protect and serve, not to command or manipulate. Government’s most urgent task is simply to refrain from interfering with and disrupting the system. This combined focus on individual freedom and governmental self-restraint was a principal hallmark of liberalism. One more general point about liberalism bears on its relevance to international law: its basically pacifistic character. It is true that it was based on competition between rival producers. In that sense, competitiveness was in its very marrow. But this competitiveness was peaceful, not violent, and it was between private parties, not states. Peaceful economic competition was seen not only as far preferable to the military variety. It was also regarded as a means of reducing the very possibility of conflict because it would ensure that the resources of the world were shared out, more or less equitably, without bloodshed or conquest. The point was pithily summed up by the French economic economist and publicist Frédéric Bastiat: “When goods do not cross frontiers,” he warned, “armies will.” Some liberals went so far as to maintain that the very process of international relations between governments was an intrinsically corrupting process, producing national rivalries and jealousies at best, and outright war at worst. It was in this spirit that President George Washington of the United

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States sternly warned his fellow nationals that, while extending commercial ties with foreign countries was a sound policy, they should have “as little political connection as possible” with foreign states. On this point, too, Bastiat was characteristically outspoken. “Our code is this,” he declared: “ ‘The least possible contact between governments, the most contact between peoples.’ Why? Because contact between governments compromises peace, whereas contact between peoples guarantees it.”  With trade so highly praised as the key to world peace, it is perhaps not surprising to find Richard Cobden, one of the most dedicated British economic liberals of the century, grandly proclaiming that “free trade is the international law of God.”  If this liberal thesis was taken to its utmost logical extreme, it would even lead to the outright obsolescence of the nation-state and the advent of a single global market society. Liberal economics would work its wonders with the greatest possible efficiency if it were given the greatest possible theater in which to operate—the entire world. Liberalism was therefore, in its fullest form, a radically cosmopolitan system, seeing individuals the world over as being integrated into one single grand global market mechanism. This point was not missed by contemporary observers. The German sociologist Ferdinand Tönnies was one who remarked upon it. “[T]he development of nation states,” he suggested, could be looked upon as “only a temporary barrier to an international market Society without national boundaries.”  It should be carefully noted that it was not envisaged that this process would result in a homogeneous world. On the contrary, the processes of specialization and division of labor were central features of the liberal plan, so that the various different regions of the world would specialize in what they were relatively best at producing—and then trade with other producers for the satisfaction of the full range of their needs. To an impressive extent, the liberal program was actually enacted in the nineteenth century. Fittingly, this was not done through centralized action, but instead by way of state-by-state adoption of free-trade-oriented policies. Britain led the way in 1846, with the repeal of its “corn laws,” which were tariffs on imported grain for the protection of domestic producers. On the wider scene, the decisive step was the conclusion, in 1860, of the Cobden-Chevalier Treaty (named after the two negotiators) between Britain and France, which provided for massive reductions in tariffs between the two states. Mostfavored-nation clauses in treaties of amity and commerce helped to spread

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liberal policies around the world. Along with broad freedom of movement of capital, and remarkably free movement of persons, too—with the requirement of passports for international travel even falling largely into disuse by the late nineteenth century—the period became something of a golden age of liberal economics.

The Birth of Human Rights Liberals tended to devote much attention to protecting individuals from governments. This was far from a new idea. Even Bodin, the early champion of sovereignty, held that rulers were subject to the strictures of natural law—and that these included a due respect for the established rights of others. Most notably, this meant that rulers could not arbitrarily take the property of their subjects. Liberalism went further than this, though, in placing the primary emphasis not so much on the limitations on governments as on the possession of positive rights by individuals themselves. Moreover, the rights that liberals sought to protect went beyond vested property rights to include matters such as liberty of expression and freedom of the press, of religion, and of assembly, as well as safeguards for persons accused of criminal offenses. Concern also extended to protecting individuals from oppression by foreign governments. The most tangible sign of this solicitude was the network of friendship treaties that grew up between the European trading states from the seventeenth century onward. These treaties continued to be concluded in large numbers throughout the nineteenth century. But an important further step was taken in this period. It began to be asserted that protection from arbitrary oppression by foreign government did not depend on the existence of a treaty. Instead, it was asserted to be a general entitlement, under customary international law—and, as such, applicable to all aliens against any foreign government anywhere in the world. American Secretary of State Elihu Root asserted, in 1910, that countries are under a general obligation to conform to “an established standard of civilization” in their treatment of foreign residents. This is, he maintained, “a standard of justice, very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world.” Shortly after this, the American scholar Edwin Borchard held this “established standard” to mean that foreigners are entitled to “a certain minimum of rights necessary

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to the enjoyment of life, liberty and property.” Borchard readily conceded, though, that this was “a somewhat indefinite standard of treatment.” General concepts of human rights began to take root in international legal thought in this period in a more or less explicit way. The Russian (or Estonian) lawyer Fedor Fedorovich Martens was not a partisan of liberalism, but he clearly articulated the essential idea behind what would become an international law of human rights. This was the thesis that the basic rights of human beings are not creatures of legislation or treaty. “The rights,” Martens contended, “flow from the nature and conditions of humanity and therefore cannot be created by legislation. They exist by themselves.” These fundamental rights were crisply summed up as being “the right to respect for [the] person, to inviolability of . . . family and of . . . property.” Perhaps the clearest outlining of a general law of human rights was advanced by the Italian lawyer Pasquale Fiore. Fiore’s original academic field was constitutional law, which he taught at various universities, principally at the University of Naples. He also did major work in private international law. Outside the academy, he served as a senator and adviser of the Italian government. In an eloquent address to the American Society of International Law in 1912, he maintained that, contrary to the prevailing positivist orthodoxy, international law does not apply exclusively to states. Individual persons, he insisted, have “certain rights, which are independent of the state and sometimes in opposition to the rights of sovereign power.” He helpfully provided several specific examples: the illegality of the slave trade, the inviolability of personal property, liberty of conscience, and the right to emigrate. These “international rights of man” should be protected by international law, along with the fundamental rights of states over which positivists were so exercised.

Legitimacy of Governments Another important item that liberals brought onto the agenda of international law was the legitimacy of governments. In national settings, this was brought about by extension of the franchise, which made governments (or some governments) increasingly responsive to the will of the persons governed. In international law, it took the form of a policy of nonrecognition of governments that took power by irregular means. A proposal to this

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end was put forward in 1907 by Carlos R. Tobar of Ecuador. He was a man of many talents—a novelist and linguist, also a physician and educator, as well as a diplomat with previous (and future) ser vice as his country’s foreign minister. In an open letter written to the Bolivian consul in Brussels, he suggested that the American republics “ought to intervene in an indirect way in the internal dissensions” of one another. He went on to propose that this intervention “might consist at least in the nonrecognition of de facto government sprung from revolutions against the constitution.” By 1913, this proposal had been christened as the “Tobar Doctrine.” The Tobar Doctrine (though not yet under that label) made its first entry onto the international legal scene the very year that it was proposed. In 1907, an Additional Convention was appended to a General Treaty of Peace and Amity concluded by the five Central American countries under the watchful auspices of the United States. In this agreement, the five (Guatemala, Honduras, El Salvador, Nicaragua and Costa Rica) agreed that they would not recognize as legitimate “any . . . Government which may come into power in any of the five Republics as a consequence of a coup d’état, or of a revolution against the recognized Government.”  Several years later, the United States followed suit—not as a matter of legal obligation to other states in the manner of the Central American countries, but as a matter of self-determined policy. This was in relation to Mexico, following the forcible taking of power by Victoriano Huerta (complete with the murdering of his predecessor) in 1913. President Woodrow Wilson refused to recognize the Huerta government and even officially called for Huerta’s resignation from office. Wilson also took the position that official acts done by Huerta would not be regarded as legally binding. This did not have the hoped-for effect of forcing a change of government, although Huerta was eventually overthrown and killed in 1916 in the course of further revolutionary turmoil.

Liberalism and Positivism The tight connection between liberalism and natural law has been noted. In a number of important ways, however, liberalism and positivism were congenial. It may be noted in this connection that one of the earliest champions of the ideas of Comte in the English-speaking world was the leading liberal

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figure, the economist and philosopher John Stuart Mill. The most significant feature shared by the two bodies of thought was that both had a fundamentally scientific and materialistic character. Liberals were also comfortable with the pluralistic ethos of positivism, since liberalism was based on division of labor, specialization, and diversity. The liberal vision bore a very striking resemblance to the neo-Kantian one, in that both were emergent systems—that is, both envisaged order as arising from below, by the spontaneous activity of the actors, and not from above, by the imposition of some kind of central authority. The difference lay in the kind of value system underpinning that emergent order. In the case of the neo-Kantians, it was an intrinsic sense of rightness (embodied in the Rechtsstaat idea) that made their system work, coupled with the key principle of reciprocity. In the case of the liberals, the moving force was the rational self-interest of individual actors, coupled with basic principles of respect for contracts and private property. The two groups also differed as to the identities of the key actors. To the neo-Kantian positivists, states were the primary (or exclusive) actors; to the liberals, private parties. But the broad frameworks of their visions were strikingly similar. There were important differences, too, however. The most fundamental divide between liberalism and mainstream positivism lay in liberalism’s powerful commitment to the empowering of individuals, through such policies as free trade, along with such liberties as freedom of the press, assembly, and religion and so forth. Correspondingly, liberals favored limiting the activities of states. The duty of governments was seen as largely negative in character: chiefly, to refrain from interfering with the activities of individuals. Positive duties of governments were seen as largely facilitative— for example, the protection of property rights. This was in the greatest contrast to the mainstream positivist position—and especially the voluntarist variant—with its exaltation of the role of the state. In this regard, the contrast between the liberals and the positivists could scarcely have been greater. One key issue on which the opposition between positivism and liberalism was most evident was the question of an international minimum standard for the treatment of foreigners. Liberals tended to be strong supporters of the idea. But there was dogged opposition by the positivists. The most outspoken opponent of the idea was Calvo, who emphatically asserted the prin-

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ciple of nonintervention. In the pluralist spirit of positivism, he insisted on the right of each state to fi x its own standard of treatment as it chose. Foreign visitors simply had to accept that standard when they entered. As a result, a foreigner could not be said to be mistreated if he were simply treated on a par with nationals in the state where he found himself. Only if he was discriminated against on the basis of being foreign could there be said to be any mistreatment in the eyes of international law. This came to be known in international law as the Calvo Doctrine. It received notably strong support from Latin American countries, whose governments were fearful (with good reason) of intervention by developed states into their internal affairs. The Calvo Doctrine did not remain merely a doctrine. There was also a concerted attempt to implement it in practice by means of legal provisions that came to be known, fittingly enough, as Calvo Clauses. These were provisions—whether of state constitutions or legislation or of contracts— that sought to bar foreign-state intervention on behalf of foreign nationals from the outset. The 1881 constitution of Venezuela, for example, contained a general prohibition against “appeal to diplomatic intervention” by foreigners (unless expressly allowed by law or treaties). Similar in spirit was a provision of the Mexican Constitution of 1917, allowing foreigners to own land or extract subsoil minerals only if they agree “to be considered as Mexicans in respect to such property and, accordingly, not to invoke the protection of their own Governments.”  The validity of Calvo Clauses in international law became a matter of some considerable dispute. Against their validity, it was contended that the right of states to bring claims on behalf of their nationals for injuries inflicted by foreign governments is an inherent right of the alien’s home state. Any purported waiver entered into by the alien himself cannot prejudice that inherent right of his state. It is an interesting comment on the state of development of international law that this dispute has not been definitively resolved to the present day.

Limits to Liberalism As impressive as some of the liberal innovations in international law were in the nineteenth century, it must be acknowledged that there were also some significant limitations to its impact. The Tobar Doctrine, for example, never

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became part of general international law. The accepted rule instead was that any regime that had, de facto, effective control over a country was entitled to recognition by other states, without regard to the niceties of the state’s internal law. Another problem was that liberalism was plagued by certain internal inconsistencies. The most frustrating of these was the clash between two of its cherished principles: nonintervention and protection of vulnerable persons against government oppression. In principle, liberals were at one with positivists in supporting the principle of nonintervention. Their shared commitment to pluralism ensured this. Mill, for example, was a staunch foe of intervention—at least in principle. But liberals were also strongly inclined to support anticolonial and national liberation movements. This was so in the case of American independence in the late eighteenth century, as well as of the Latin American independence struggles in the early nineteenth century. Other major liberal causes included the struggles of the Greeks (and other nationalities) to break away from the Ottoman Empire, the independence of Belgium from the Netherlands, and the revolts of Poles against the Russian Empire and of Hungarians against the Austrian Empire. This meant that there was a constant temptation on the part of liberals to make exceptions to the nonintervention principle in favor of victims of oppression. Mill, for example, articulated two specific forms of intervention that were permissible, as special exceptions to the general rule of nonintervention. One was what might be called a right of counterintervention. This would occur in a case in which a government called in some outside power to aid it in the suppression of a rebellion. In such an event, Mill urged, other states would be justified in assisting “struggling liberalism” by any means at their disposal, including the use of armed force. The archetypal case (and the one that Mill had in mind) was Austria’s suppression of the Hungarian insurgency of 1848–49, which was achieved by summoning Russian aid. The Hungarian cause had captured the liberal imagination of Europe, and there was great bitterness over its suppression by a foreign armed force. Mill’s second proposed exception to the general principle of nonintervention concerned civil wars—not all civil wars, but those in which the two sides were so equally matched that neither could be reasonably expected to prevail over the other without a great deal of protracted bloodshed. In such

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an exceptional case, Mill argued, third states would be justified in forcibly intruding into the conflict to compel a settlement. Even these narrow exceptions to the general principle of nonintervention, however, failed to gain acceptance among international lawyers. The dominant positivist position held that aid to insurgents in civil conflicts was flatly unlawful. This principle was confirmed in a resolution of the Institute of International Law (a body of international law scholars) in 1900. The furthest that mainstream positivist lawyers were prepared to go was to concede that, in certain exceptional conditions, there might be a moral case for humanitarian intervention, but not a legal one. Liberalism therefore, for all of its achievements in some walks of life in the nineteenth century, made comparatively little impact on international law. Its triumphs generally occurred at the levels of individual states or of bilateral treaties. In some respects, though, its foundation was solid. Economic liberalism and ideas of fundamental human rights would both have a large part to play in future.

The Sentiment of Nationality If liberalism had its roots in natural law, another of the heterodoxical schools had a close affinity with the historical school. This was the doctrine that became known as the nationality doctrine, or sometimes as the Italian School in honor of the country where it attained its greatest hold. We have noted already the basic tenets of the historical school of law: the belief that law is a product and expression of the particular historical and cultural experience of individual societies, rather than a system of universal and eternal norms. The historical school therefore supported and reinforced positivism in its rejection of natural law. Where the nationality school parted company with positivism was in its rejection of the positivist fi xation on states as the fundamental units of international law. It contended instead—as its name implies—that the fundamental unit is the nation, which was defined as, ultimately, a cultural community. A nation was seen as a collectivity of people who are bound together most conspicuously by a shared language, but who also possess a common historical and cultural heritage, in such forms as shared folklore, religious

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practices, and customs. The nationality school joined the historical school in opposing the universalism of natural law, and in favoring the idea of pluralism and diversity instead. The earliest major champion of the core idea of the nationality school—of a nation as a cultural unit more fundamental than a state—was the Prussian schoolmaster and roving intellectual Gottfried Herder, in the late eighteenth century. His was a cosmopolitan vision, with the world as a confederation of nationalities living in harmony. Another early expression of the nationality principle was by the Franco-Swiss literary figure Germaine de Staël, in her book On Germany in 1810. She expressed the view that the ideal goal for a state was that it would display an ethnic and cultural unity, with its citizens united by a common language and historical memories. According to the nationality thesis, states are merely the external trappings of nations. In the words of Savigny, the state is “the bodily form of the spiritual community of the nation.” The nationality school applied this idea to international law, to produce the thesis that states and nations should be brought into closer conjunction. More specifically, the contention was that a people constituting a nationality possesses a fundamental right to form themselves into a state. The most prominent and forceful proponent of this notion was the Italian publicist and would-be revolutionary, Giuseppi Mazzini, the founder (in 1830) and guiding spirit of “Young Italy.” This was a nationalist movement advocating the expulsion of Austrian rule from the north of Italy, Bourbon rule from the south, and papal rule from the center— all to be supplanted by the birth of a single Italian state that would embody the destiny of the Italian people to be united politically into one state, as they were already united culturally into one nation. Mazzini was one of the supreme idealists and propagandists of world history. Narrow and jealous forms of nationalism were not his style. On the contrary, he was a thoroughgoing cosmopolitan who saw the various nationalities of the world as operating harmoniously despite—or even because of—their diverse outlooks and traditions. His picture resembled that of the liberal economists, who similarly saw the economic regions of the world, with their different resource endowments, as all contributing to the progress and integration of the world economy in general. Mazzini believed that every nationality has its unique character, with its distinctive gifts to offer to the greater human family. Between the countries of the world, he enthused,

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“there will be harmony and brotherhood.”  As with so many idealists, militant imagery came readily to him. “Humanity,” Mazzini grandly proclaimed, is a great army moving to the conquest of unknown lands, against powerful and wary enemies. The Peoples are the different corps and divisions of that army. Each has a post entrusted to it; each a special operation to perform; and the common victory depends on the exactness with which the different operations are carried out. In the sphere of international law, these ideas were most prominently championed by a fellow Italian of Mazzini’s named Pasquale Mancini. He was originally from Sicily. As a committed political liberal, he served in the postrevolutionary government of Naples in 1848. When the Bourbon monarchy regained power, however, he was forced to flee to Piedmont. The restored Naples government then proceeded to seize his property. In 1851, he was appointed to the newly established chair of international law at the University of Turin. His inaugural address, delivered that year, was the principal statement of the nationality thesis. It was entitled “Nationality as the Foundation of the Law of Nations.” Later that year, the Austrian ambassador to Sardinia-Piedmont attempted to stop Mancini from lecturing, but the prime minister of the country supported him. Mancini defined nationality as “a natural society of men whom unity of territory, origin, customs, and language molds into a community of living and of national consciousness.” This was the natural and fundamental unit of human social life in his eyes. The state was a sort of secondary emanation of the nation. In the definition that he made famous, the state was “the juridical arrangement of the nation.” His nationalism, like that of Mazzini, was cosmopolitan, in that he saw nations not as isolated, inwardlooking entities, but instead as components of a larger global society. “Just as individuals should be organized as nations,” he maintained, “so all humanity must be organized in an international society, based upon the coexistence and reciprocal independence of all the nations under the universal rule of justice.” Strangely, although the ideas of Mazzini and Mancini were very close to one another, neither of them ever referred to the other in his writings.

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Mancini proved to be on the winning side of history’s trends. Italian political unification was brought about during his (and Mazzini’s) lifetime, in 1860. He even had the honor of helping to prepare the legislation that brought the changes into force. On behalf of the new national government, he was sent back to Naples, now as administrator of justice, where he instituted a number of liberal reforms. These included placing limitations on the power of the Catholic Church, as well as the codification of law. He served briefly as minister of public instruction in the Italian government and later, in 1881–85, as foreign minister. A number of Italian writers followed the trail that Mancini marked out. Fiore was one of them. He dedicated the first edition of his treatise on international law to Mancini in 1865. Another prominent figure in this movement was Terenzio Mamiani della Rovere, who was a publicist, philosopher, and general man of letters. He also served as a deputy in the Sardinian parliament, briefly as minister of public instruction in Sardinia, and then, after unification, as an Italian senator. He presented probably the most thoroughgoing exposition of the nationality thesis in a book published in 1856, The Rights of Nations; or, The New Law of European States Applied to the Affairs of Italy. Nations, Mamiani enthused, are “a favored creation of God.” Moreover, “it is by nations that States are ordinarily founded.” A state that is founded on the basis of nationality will then have what he called “a certain moral unity.” Like Mazzini and Mancini, Mamiani was the very soul of tolerance and broad-mindedness. All nations, he averred, “turn their glances towards the [sun] of truth and justice, but each of them beholds it in a peculiar phase, and with a distinct ray of it the soul of each is warmed and coloured.” Ever the idealist, he envisaged that the various nations of the world would live in natural harmony with one another, and that international law would therefore be spontaneously and voluntarily adhered to. What he called “the sentiment of rectitude alone” would suffice for the enforcement of international law, and there should be no need for sanctions or coercion. “Nothing . . . is finer or more glorious for mankind,” he proclaimed, “than that each nation should remain the judge of itself, and the free legislator of all its own acts and enterprises.” It is hardly surprising, then, to find Mamiani as a strong supporter of a rule of mutual nonintervention by states in the affairs of one another. He held this to be “the very first principle and axiom of International Law.” In

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this connection, he gave extended attention to the question of whether humanitarian intervention should be allowed. His conclusion was firmly negative. “The self-rule of States,” he pronounced, “is sacred and inviolable.” Nonetheless, Mamiani did allow for two marginal exceptions to the otherwise strict rule of nonintervention, plus one important caveat. The first exception was counterintervention. Like Mill, he conceded the lawfulness of action taken to neutralize intervention by some other state. The second exception was that intervention is permissible if its purpose is to assist a subjugated people in throwing off a foreign yoke. The important caveat was Mamiani’s insistence that aid given by one portion of a people to assist their fellow nationals does not count as intervention—and is therefore outside the scope of the nonintervention principle. The reason is that, by definition, the two groups are actually the same people. Support for the nationality doctrine from the liberal camp was readily forthcoming. This was natural, in view of the support of liberals for government by consent of the people. “Nationality,” said Mill, “is desirable, as a means to the attainment of liberty.” He contended that, “[w]here the sentiment of nationality exists in any force, there is a prima facie case for uniting all the members of the nationality under the same government, and a government to themselves apart.” He regarded this as a straightforward application of the basic liberal principle that “the question of government ought to be decided by the governed.” Also compatible with liberalism was the nationality school’s vision of a peaceful and harmonious world. According to this thesis, a nation that succeeded in establishing itself as a state—that is, succeeded in uniting all of its members into a single state—could have no motivation for further expansion at the expense of other states or nationalities. It therefore held out the delicious prospect of bringing international rivalry to a natural halt. Unfortunately, the conditions required to make this dream come true were daunting. Somehow or other, the seemingly impossible feat of giving every nationstate its collective heart’s desire would need to be achieved. But this could happen only if every state in the world was somehow forced into a monoethnic, mononational mold. How this was to be accomplished without a great deal of confusion—and probably violence—was not very apparent.

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The Decline of the Nationality School The nationality school did not win widespread support from international lawyers generally. Even in Italy, it by no means commanded universal assent. Anzilotti, notably, gave it a wide berth. The attitude of Bluntschli is instructive, since he was a theorist of statehood before he acquired an interest in international law. He accorded a certain cautious welcome to the nationality thesis. “A People which is conscious of itself, and of a political vocation,” he conceded, “feels a natural need to embody itself in a State. If it has the power to satisfy this impulse, then it has a natural right to found a State.” Bluntschli also opined that, at least in practical terms, it is to a state’s advantage to be monoethnic, as that would be most conducive to national unity. Bluntschli, however, firmly rejected irridentism—the notion that a state is justified in expanding its borders so as to encompass members of its cultural group who inhabit other countries. It is “stretching the principle of nationality too far,” he warned, to demand that the boundaries of the state be “as wide and as shifting as those of the language of a People.” This moral claim of nationalities to form states, he concluded, is a matter more for the judgment of history than of judicial tribunals or legal publicists: How far a people is able and worthy to form a State cannot in the imperfect condition of international law be decided by any human judgment, but only the judgment of God as revealed in the history of the world. As a rule it is only by great struggles, by its own sufferings and its own acts, that a nation can justify its claim. In the end, he regarded the nationality principle as lying “in the region of policy, not . . . of public law.” It would be some time, he thought, before it would be possible for “this merely moral imperative [to become] embodied in [a] corresponding legal formula.” Another weakness of the nationality school was that it was all too easy to envisage the sentiment of nationalism turning away from the high-minded idealism of Mazzini, Mancini, and Mamiani. There have been too many instances in which nationalist sentiments have assumed ugly forms, marred by intolerance and aggression. Intolerance of minority groups was an espe-

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cially severe challenge, since the nationalities of the world are not (by a long shot) conveniently grouped into compact territories that can be neatly demarcated from those of other nationalities. Basically, the Italian school faded gradually, once the country’s unification was achieved in 1859– 61. But not the ideals that it articulated. In fact, in the post–World War II era, the ideals of the nationality school would experience something of a resurgence in the decolonization movement.

Solidarism The final heterodoxical movement in international law that arose in the nineteenth century lacks a readily recognizable label, even though it is alive and well at the present day. Here, it will be designated as solidarism. It has also been called the sociological approach and sometimes the functionalist approach (labels that became more common in the following century). It has sometimes been termed mutualism. Whatever name is applied, the core idea of solidarism is interdependence. Of all of the schools of thought of international law, it was (and is) the one with the strongest commitment to the age-old Aristotelian principle of innate human sociability—to the point that it may be regarded as the reformulation of that principle into modern terms. In the specific sphere of international law, solidarism was marked by a rejection of the positivist reverence for state sovereignty and independence, in favor of a stress on the international community as a whole. In place of the positivist concern for safeguarding the fundamental rights of states, there is a stress on the promotion of good citizenship in a global community and the steady promotion of the general welfare of all persons. The word “solidarism” was coined in the early nineteenth century by a frustrated French political activist named Pierre LeRoux, as a nonrevolutionary substitute for “fraternity” in the French revolutionary triadic rallying cry of “liberty, equality, fraternity.” More than just the name was French. Solidarism itself was as distinctively French a creation as voluntarism was a German one, or the nationality school Italian. It would not become a major force in international law until the following century. But its roots were clearly planted in the present period. In its inception, it appeared in two principal variants, which may be labeled the technocratic and the sociological.

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The Technocratic Variant The technocratic variant of solidarism was the first to appear, at the hands of an imaginative and eccentric French nobleman from Picardy named Henri de St.-Simon. He lived during (and even through) the French Revolution—not the most hospitable of times for a member of the nobility. He was saved from the guillotine by the peasants on his estate who, in gratitude for the many kindnesses that he had shown them over the years, pleaded with the revolutionary authorities to spare him during the Terror. In 1814, at the close of the French Revolutionary Wars, he put forward a plan for the future organization of Europe—and ultimately of the world—that would entail the eventual abolition of politics itself. St.-Simon envisaged that the older elite groups of military and political figures were in the process of becoming obsolete in the new scientific age, and that the future lay in the hands of a new class of persons, whom he labeled industriels. These were the captains of modern industry and of finance, together with engineers and scientists generally. This group would play the leading role in the great mission of the economic development and unification of the world, on a nonpolitical basis. If this sounds similar to the scientific and technocratic ethos of positivism, the explanation is not far to seek. Comte acted for a time as secretary to St.-Simon and absorbed many of his master’s ideas. (The two had a bitter falling-out over credit for writings.) St.-Simonism advocated a wholesale reorganization of the world. In its grandest form, it saw the world organized as a kind of giant corporate enterprise, on a thoroughly planned, rational, scientific basis. In its vision of a global planned economy, St.-Simonism was a clear precursor of socialism— and, in fact, the word “socialism” was coined by St.-Simon (as a contrast to “individualism”). His ambitious plans had a palpable influence on later socialist programs. Friedrich Engels’s famous vision of a future socialist world in which the “government of men” would be replaced by the “administration of things” was a direct expression of the St.-Simonian ideal. In such a world as this, the skills of traditional lawyers, with their subtle doctrines of rights and duties, would not be required. The leadership of this great enterprise (as it could aptly be termed) was to be entrusted to scientific, technical, and financial elites (the industriels), working in coordination in the grand cause of global economic develop-

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ment. The St.-Simonian vision was therefore decidedly elitist in outlook— even authoritarian, as it lacked any commitment to democracy. It was also strongly collectivist in its stress on planning. There is little surprise, then, that many have seen premonitions of totalitarianism in it. In all events, St.-Simonism presented a very great contrast to liberalism, with its individualistic and libertarian character and its stress on free competition. It was similarly incompatible with the nationality school, since it had no use for nations or states or cultural traditions. It was an aggressively modernist, postpolitical, cosmopolitan creed. A New World counterpart of St.-Simon can be found in an Argentinian lawyer and political activist named Juan Bautista Alberdi. Like St.-Simon, he had grand ideas for a continent-wide federation—this time in the form of a call, in 1844, for a reorganization of the Spanish American republics into a single federation. He envisaged that boundaries between the countries would be altered in the interest of rationalization. “America is poorly put together,” he contended. “We must redraw her geographical map.” He proposed the formation of a regime of law to govern the river systems of the continent and also favored a continent-wide program of tariff unification, on the model of the Zollverein that the German states were putting together at the time. There was to be cooperation on patents and copyrights, a highway and postal system, and a central university. A scheme of general disarmament for the continent was another part of his program, along with the outright abolition of standing armies. Finally (as if all this were not enough), “an international peace court” was to be established for the continent. In general, the scheme was to have as its guiding consideration “the leaguing of non-political interests” of the Spanish-speaking countries. Alberdi’s grand plan did not, to put it mildly, come to fruition. But it showed the direction in which at least some of the most advanced minds in the region were thinking. Alberdi’s ideas, like those of St.-Simon, were too wide-ranging to be confined to a mere single continent. He was a fervent believer in the human race as constituting a single body—with, ultimately, one single body of law to govern it. “That which is called the law of nations,” he proclaimed, “is the human law seen in its most general, most elevated, [and] most interesting aspect.” He envisaged the eventual “union of the nations into a vast social body of so many heads of states, governed by a thought, by an opinion, by a

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universal and common judge.” Once this rather ambitious goal has been achieved, “[t]he law will come by itself as the new law of life of this body.” As in the St.-Simonian vision, material economic progress was seen as a crucial component to this process. In par ticu lar, efficient communication and transport networks would be of critical importance. By the time that Alberdi wrote, some giant strides had certainly been taken in that direction, with the development of railroads and electric telegraphs. “In proportion as space is annihilated by the marvelous power of steam and electricity,” he enthused, “the nations of the world find themselves brought closer and closer together, so that they seem to form a single country. . . . Every railway is worth a dozen alliances, every foreign loan is a frontier wiped out.” The dazzling visions of St.-Simon and Alberdi were, of course, not implemented in anything like their grand entireties. But some important incremental steps were taken in the course of the nineteenth century. Notable progress was made, for example, in the facilitation of international transport. The Congress of Vienna—not otherwise remarkable for St.-Simonian inclinations—adopted a Règlement for the Free Navigation of Rivers. Action was first taken regarding the Rhine. Tolls were abolished, and navigation supervised by a shipping commission. Similar arrangements were arrived at for other rivers, including the Elbe, the Danube, and the Po. Provisions were also made for two key man-made waterways. One was the Suez Canal, which opened in 1869. Usage of it was governed by the Constantinople Convention of 1888. (Not until 1904, however, was this agreement brought into effective force.) Broadly similar arrangements were made for the Panama Canal, in the Hay-Pauncefort Agreement between Britain and the United States in 1901. Special care was taken to ensure the “neutralization” of the these two key waterways—basically meaning that, even in time of war, warships from belligerent states would be allowed to use the canals (contrary to the general rule of neutrality, that neutral states must not allow belligerent armed forces to cross their territories). International cooperation was organized in other technical and functional (i.e., nonpolitical) areas, too. Postal communication was one. At the beginning of the nineteenth century, states began to conclude bilateral treaties on postal ser vice. In 1874, a General Postal Union was established, based in Geneva. Four years later, it was transformed into the Universal

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Postal Union, which continues to operate. In 1865, an International Telegraphic Convention was concluded, to which all states were invited to accede. Overseeing this arrangement was the International Telegraphic Bureau, based in Berne, Switzerland, which began operations in 1869. An International Radiotelegraphic Union was established in 1906. A wide variety of other international organizations were created in other fields. In 1897, for example, an International Maritime Committee was formed in Brussels. Its work led to the concluding of two international conventions in 1910: one on collisions at sea and the other on assistance and salvage at sea. For the rights of laborers, an International Labor Office was established in 1900. To deal with unfair trading practices in the sugar trade (chiefly in the form of placing limits on government subsidies), a Permanent Sugar Commission was established in 1902. It was estimated that, by 1911, over fortyfive public international unions were in existence. These developments gave rise to some new terminology. The phrase “international organization,” was coined, apparently by Lorimer in an address in 1868. Ten years later, the term “international administration” was invented by Bluntschli and later employed by Fedor Fedorovich Martens. More substantively, a new outlook on law arose, too. A pioneer figure in this was a German political scientist named Lorenz von Stein. Stein first taught at the University of Kiel, then part of Denmark, but was dismissed for advocating independence for the province of Schleswig-Holstein. He spent the rest of his career at the University of Vienna as a professor of political economy. He was a historian of socialist and communist movements and was also influenced by the writings of St.-Simon. When running for parliament in Austria in 1874, he openly proclaimed himself to be a St.-Simonian. In 1865– 68, he produced a massive, seven-volume treatise on the doctrine of administration, which marked the start of academic study of what would become known as international administrative law. His work became influential in Japan, after several important figures in the Japanese government studied under him in Vienna. In the following generation, a prominent spokesman for this new international administrative law was an American named Paul S. Reinsch, who taught political science at the University of Wisconsin—including the first comprehensive course on the subject of these international unions (as he called them). There is little evidence that Reinsch’s views were the fruit of

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abstract jurisprudential considerations. His work arose less out of doctrinal dissatisfaction with natural law and positivism, and more out of extrapolation from existing trends in the real world. In his own words, his outlook was “concrete and practical.” He was, in fact, dismissive of the old “rationalist cosmopolitanism” of the eighteenth century. The mission of international law, he maintained, was not to build “cloud castles” but rather “mountain tops . . . resting upon an immovable and massive foundation”—a foundation, that is, of practical, material interests in the real world. At the same time, he was careful to distinguish his “positive internationalism” (as he called it) from “attempts artificially to create a world state.” He envisaged that states would retain their sovereignty—but would, at the same time, be drawn ever closer together into ever denser webs of cooperation. It was, in a manner of speaking, a vision that was positivist in spirit but (crucially) without the pluralistic ethos of positivism. Lawyers of the positivist persuasion, by virtue of their scientific outlook, could look with approval on this technocratic ambition. Jellinek, for example, was familiar with Stein’s work and wrote warmly of the promise that it held. Stein’s concept of international administration, he stated in 1882, could point the way to “a higher form of development” of international law—one that looked beyond the forging of political ties, which by their nature were “always very precarious.” The various public international unions, he maintained, “promise to open up an exciting perspective for the future of international law, both in theory and practice.”

The Sociological Approach The other variant of solidarism, the sociological one, had at its core an insistence on seeing law as a product of social and economic forces in the real world. It is therefore best characterized as the international-law counterpart of sociological jurisprudence in general legal philosophy. The role of law, in this view, is chiefly the allocation of resources or the provision of ser vices and not the exposition and defense of abstract rights. Law is regarded as part of a more general program of identifying and meeting the concrete social and economic needs of communities and their members. To this wing of solidarist thought, as to the technocratic one, the idea of interdependence is fundamental.

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This sociological variant of solidarism had its earliest intimations in such initiatives as workers’ cooperative movements and mutual aid societies. These bodies were organized on the principle that the members would look after one another, providing assistance to one another in the face of the many (and ever growing) uncertainties and disruptions of modern industrial life. The British philanthropist and industrialist Robert Owen was a key early figure in this movement. But it was in France, during the Third Republic (from 1875 onward) that it had the largest political impact. In the field of economics, it was associated with the writing of Charles Gide. In sociology, the work of Gabriel Tarde revealed a strong solidarist influence. In politics, its principal champion was Léon Bourgeois, later to become one of the founding fathers of the League of Nations (and recipient of the Nobel Peace Prize in 1920). The foremost intellectual figure of this version of solidarism was Émile Durkheim, France’s most prominent sociologist of the late nineteenth and early twentieth centuries. He presented a picture of modern society as comprising a densely interconnected web of activities, with all parties constantly relying on others. In the legal sphere, the most prominent spokesman of the solidarist vision was the legal philosopher Léon Duguit, who was directly influenced by the writing of Durkheim. He was also an outspoken opponent of voluntarism and, in particular, a fierce opponent of the notion that a state—or, for that matter, any corporate body—could be regarded as having anything like a distinct legal personality of its own. States, he insisted, are merely mechanisms that can be employed by whatever persons happen to be, de facto, in the position of controlling them. Some hints of the solidarist persuasion were evident, too, in the work of a Chilean lawyer named Alejandro Álvarez, who would later achieve great prominence as a solidarist spokesman. In the pre-1914 period, he was better known for another of his roles: as an advocate of a distinctively American (i.e., Western Hemisphere) system of international law. But there was early evidence of a solidarist frame of mind. In the late 1890s, he studied in France under Louis Renault, to whose inspiration he credited his legal outlook. Th is was revealed in a book on the subject of codification of national law, written in 1904 on the occasion of the centennial of the French Civil Code. Álvarez was accordingly not speaking of international law on this occasion, but he did indicate his commitment to certain

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“new doctrines” that were in the air—namely, those of socialism and solidarism. At the heart of these two beliefs (which he combined into a more general concept of “solidarity”) was the replacement of the individualistic orientation of law by a collectivist one. There should be a preference, Álvarez insisted, for the general social interest over private individual concerns. The traditional emphasis of the law on the rights of individuals should give way, he contended, to a recognition of the duties of persons to assist fellow members of society in cases of need, and to the rights of associations of persons formed for the pursuit of various specialized collective interests. Systematic applications of these ideas to international law would only come after the First World War. But even before that, it is evident that solidarist ideas were part of the general intellectual atmosphere. Wherever there were influences of modern sociological ideas, a general spirit of solidarism could often be discerned. The American lawyer Amos S. Hershey, of the University of Indiana, writing in 1912, is an example. As he suggested, In the further development of International Law, motives of utility and a sense of international community interests should be allowed to have at least as much influence as tradition and precedents based upon metaphysical conceptions of natural law or abstract principles of justice. Jurists must learn to look forward as well as backward, and should have regard to the probable or possible social consequences of a given practice. . . . Social utility, or adaptability to human needs and human social conditions, is thus the ultimate test of international, as of all human law. Bonfils expressed similar sentiments, holding “the law of sociability” to be “a natural and necessary law, not only for individuals, but also for States.” In an interdependent world, each state, Bonfils maintained, “has the mission of working, with its own genius, for the general work of civilization.” In his opinion, the two opposing forces of independence and interdependence are simultaneously at work—interdependence in the economic, intellectual, and moral spheres, and independence in the political one—with international law attempting to strike a balance between them. He surmised that, over the long run, interdependence would prevail and that the de facto

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international community that was presently based on it would ultimately become a de jure one.

Relations with the Other Schools Solidarism had strong ties to natural law. A central feature of natural law had always been its universalist outlook—with its insistence that the whole of humanity constitutes, ultimately, a single moral and ethical community. This idea was also at the very core of solidarism. The two approaches were also united in their common refusal to accord a central role to state sovereignty. Duguit was especially outspoken on this point. Law, he insisted, is a not a product of government promulgation. It is an expression of the social bonds that unite the people of any given society. Those are the primary forces in legal life, with government and its various actions being simply their product or expression. Government, in other words, is merely epiphenomenal. Society itself is the fundamental reality and the font of legal norms. So significant is the connection between solidarism and natural law that there is not always agreement as to which category to place certain writers in. Kaltenborn, for example, has sometimes been identified as a pioneer of the solidarists. Lorimer also had a pronounced affinity with the solidarists, in his stress on the interdependence of states. There were some important differences, though, between solidarism and natural law. The principal one was the strong commitment of solidarism to the idea of law as a product of social forces and relationships, and not as an embodiment of eternal truths. In this key respect, solidarism had more in common with the historical school of law than it did with natural law. But here too, there were some key differences. Where the historical writers focused chiefly on cultural matters such as language, literature, and national consciousness generally, the solidarists placed greater emphasis on economic factors such as industrialization and technological advancement. Also, the historical school stressed the uniqueness of various different societies, while the solidarist focus was on interdependence and transnational ties. Solidarism shared one vital common feature with liberalism: its focus on human welfare rather than on the sovereign rights of states. The principal difference between the two was that the solidarist outlook was basically collectivist in character, where the liberal one was individualistic. The solidarists,

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that is to say, rejected the liberal idea of rational self-interest as the principal driving force of social life. Solidarism, with its elitist flavor, also lacked the commitment to individual civil liberties and democracy that was such a striking hallmark of liberalism. Solidarism’s relation to mainstream positivism was instructive. It was certainly poles apart from positivism in its disdain for the positivist fi xation on the independence and sovereign prerogatives of states. Its adherents preferred to regard international law as a vehicle for the building of international consensus and the promotion of ever deeper and more elaborate forms of interdependence between states. Positivists, in sharp contrast, had far more limited horizons. They tended to see international law in more limited terms, as a means of dispute resolution for the inevitable cases in which the rights and interests of the various independent states come into collision. At the same time, however, solidarism was compatible with certain aspects of positivism, most notably with the empirical positivists’ focus on the actual practices of states as the primary source of law. Like the empiricists, the solidarists insisted on seeing the actual relations and practices of states as the principal source of international law. In this regard, solidarism shared in the positivist hostility to natural law. Duguit illustrates the closeness of this tie. He actually regarded himself as a positivist—of the empirical stripe, that is, rather than the voluntarist one—and was scornful of natural law.

Intervention Of all of the heterodoxical schools of international law, solidarism was the one that was most forthright in countenancing intervention by states in the affairs of one another. This is only to be expected, given the core solidarist principle that the interests of all states are indissoluably bound up with one another. Their community-oriented worldview, by its nature, discounted the idea that there could be, ultimately, any such thing as a set of state interests that belong purely to one state alone. On the contrary, the very idea behind solidarism is that the nations of the world, like individuals within society, are inevitably one another’s keepers. As Alberdi put it, with disarming candor, “[w]herever there is community of interests . . . the right of intervention cannot be abolished.” In particular, there were two areas in which

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the solidarist lawyers were prepared to hold intervention to be lawful: economic and humanitarian. In the economic sphere, the immediate issue was whether states should be permitted to isolate themselves economically from the rest of the world. The positivists had no difficulty answering this question in the affirmative. It is the sovereign right of each state to devise its own economic policies as it chose, without any right of interference by other states. It has been observed that the partisans of both the liberal and the nationality schools were similarly supportive of the principle of nonintervention. Natural lawyers reached much the same conclusion, holding the right to engage in trade to be no more than an imperfect right, meaning a “right” that cannot be enforced through coercive means. The concrete case that presented itself in the nineteenth century was that of China, where the government was reluctant to open the country to trade with the rest of the world. Positivist writers regarded this as a simple exercise of sovereign prerogatives. China may not be acting wisely, but it was within its legal rights. The solidarists tended to dissent on this point, insisting that countries that shut themselves off from the wider world thereby violate their duties to humanity at large. The solidarist position on this topic was expressed most forcefully at the beginning of the twentieth century by the French writer Albert Geouffre de La Pradelle. He appealed, as a fundamental principle, to the sociable nature of humankind and to the “duties of solidarity vis-à-vis other men,” which arise directly out of this. China’s economic isolation policy, he insisted, was a breach of that duty. He likened China to a miser, hoarding his riches to the injury of his fellow men and thereby committing a crime against the global political economy in general. Especially reprehensible was China’s refusal to allow the exploitation of its mineral wealth, which injures the world at large by depriving it of needed resources. In an interesting image, he compared China to a blind man with sturdy limbs and Europe to a paralytic with sound eyesight. “Just as a blind man does not have the right to refuse his limbs to a paralytic who offers to guide his way,” he contended, “China does not have the right to refuse Europe access to its mines.” La Pradelle readily conceded that his position was contrary to the mainstream position of international lawyers, with its heavy stress on “the fundamental doctrine of the independence of States.” But he condemned

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this orthodox standpoint as old-fashioned and benighted. The purpose of modern international law, in his opinion, is not merely the negative one of reducing or eliminating war and conquest. It is also the positive one of organizing the world’s economic and social relations in a rational and constructive way. The “social conscience” of humanity, he optimistically asserted, was in a state of constant expansion, first from the family to the nation-state—but now and in the future, from the nation-state to the sphere of international relations as well. State sovereignty is accordingly not something to be revered but, on the contrary, something to be overcome, in the name of humanity. The other form of intervention that was allowed by the solidarists was humanitarian intervention. The first lawyer to endorse its lawfulness was E. R. N. Arntz. He was originally German, from Cleves, but his political activism brought him into disfavor. In the 1830s, he fled to Belgium after being indicted for treason. In his new homeland, he became a law professor at the newly founded University of Brussels, where he spent nearly his entire career. His consideration of intervention arose out of a crisis in 1876, when the government of Turkey resorted to brutal methods to suppress an insurrection in Bulgaria (then part of the Ottoman Empire). The harshness of the Turkish action, estimated to have led to some thirty thousand deaths, caused outrage over much of Europe—including demands for military action in support of the victims. Arntz wrote (though only very briefly) in support of the interventionist cause, from a basically solidarist perspective. He insisted that the rights and interests of human society as a whole should take precedence over the sovereign rights of individual states, just as, in national societies, the private interests of individuals yield to the general public interest of the community at large. Arntz also insisted, again consistently with the solidarist outlook, that intervention in humanitarian crises must be undertaken by the international community collectively, and not by individual states on their own. This thesis received at least cautious support from the prominent Belgian lawyer Gustave Rolin-Jaequemyns. Rolin-Jaequemyns exemplified the solidarist spirit in action, as he was active in various social welfare causes and belonged to an organization called the International Association for the Progress of Social Science. He was also a strong supporter of disarmament, another unusual sideline for a nineteenth-century international lawyer.

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The first detailed and systematic presentation of the case for the lawfulness of humanitarian intervention was by a little-known French lawyer named Antoine Rougier, of the law faculty of the University of Caen, in 1910. He explicitly based his argument on an appeal to what he expressly called “a fundamental law of political societies, the law of solidarity.” In addition, he invoked what he called a “common law of humanity.” He advanced the idea of what he called a “human law,” which he candidly conceded to be closely related to natural law. Among his intellectual forebears, he named Duguit. Rougier was sensitive to possible abuse of this asserted right of intervention. To deal with that problem, he proposed, like Arntz, that humanitarian intervention could be exercised only on a collective, not a unilateral, basis. He was also careful to specify that the right is based on necessity, meaning that its purpose is to relieve the sufferings of victims of oppression rather than to punish the oppressors. The lawfulness of humanitarian intervention continues to be one of the most hotly debated issues of international law. Writers in the solidarist tradition, such as Arntz and Rougier, in supporting it, reveal themselves as the intellectual ancestors of what would later be called liberal interventionism— the policy of infringing the sovereignty of states for a noble end. But solidarism’s ideas swept much more broadly than this one issue. In the pre-1914 period, only the early glimmerings of solidarist approaches appeared. In the case of writers like St.-Simon or Alberdi, the dreams were too extravagant to gain support. Even more sober legal minds such as La Pradelle or Rougier were too far out of the positivist legal mainstream to exert much influence. In the course of time, though, solidarism would become one of the major wings of international legal thought. But the present period offered only tantalizing hints of that future greatness.

chapter eight

In Full Flower

y the early years of the twentieth century, it was difficult not to be impressed by the significant role that law now played in affairs between states. In the first half of 1871 alone, three events took place that, in combination, provide a striking illustration of three different facets of the state of international law at the time: dispute resolution, lawmaking, and enforcement. The first event, in January of that year, concerned a dispute sparked by the Russian government. The previous autumn, it had taken advantage of Europe’s focus on the Franco-Prussian War to declare itself absolved from certain arrangements that had been agreed in 1856, at the conclusion of the Crimean War). These barred Russia from sailing warships on the Black Sea and had been the source of great resentment in that country. The British government protested that Russia had no right under international law to repudiate a treaty unilaterally—although it was also sympathetic to the Russian grievance. The matter was resolved not by a court or arbitral panel, but instead in political channels, in the form of a conference of the major powers at the British Foreign Office. (Prussia was represented at the meeting, but beleaguered France was not.) The powers issued a declaration on the subject of the law of treaties, to the effect that a treaty party is not allowed to denounce an agreement unilaterally. The consent of all other parties is required for an alteration. Having registered the point of principle, however, the conference parties proceeded to resolve the immediate crisis by giving the necessary consents to the sought-after change in the Black Sea rules. The second event, in May of that year, provided an illustration of the process of making new law. Representatives of the United States and Great Britain, after several years of intense negotiations, concluded the Treaty of

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Washington, for the establishment of three arbitration panels to resolve a number of outstanding disputes. The principal one, for present purposes, was to rule on the U.S. accusation that Britain had violated the law of neutrality during the American Civil War (1861– 65) by allowing Confederate warships to be built in its ports. The interesting thing about the treaty was that it explicitly stated the rules (which soon became known as the Washington Rules) that the arbitral panel was to apply in resolving the matter. Significantly, these rules placed stricter duties onto neutral states to police their nationals than the prevailing law of neutrality did. The BritishAmerican plan was to invite all states in the world to give their acceptance to these rules, thereby converting them into general—and newly minted— provisions of international law, by way of gradual, state-by-state accession. Third and finally, the following month witnessed a dramatic demonstration of the enforcement of international law. This was undertaken by the U.S. Navy, at the expense of the Far Eastern state of Korea. The action arose out of an incident five years earlier, in which an American merchant ship had sailed up a river in Korea without permission. It ran aground, and its crew were killed in the course of quarrels with the local Koreans. In June 1871, an American naval force arrived on the scene, and its commander demanded an apology from the Korean authorities for the deaths. When the Korean government refused, American marines were sent ashore, where they seized five Korean forts and about twenty prisoners, with a loss of about two hundred Korean lives (and twelve American ones). In the event, though, hopes that the prisoners might be exchanged in return for a treaty with Korea opening up the “Hermit Kingdom” to world trade went unrealized. International law, in short, was playing an increasing role in the day-today activities of states in the nineteenth century. It could even be said that, during this period, the world became unified into a single global legal community to a greater extent than ever before. One important sign of this was the spread of international law far beyond the confines of the European world and its outlying areas. It was also a time when international lawyers began to organize themselves into a self-conscious professional community. The states of the world could be said to form a community, too—of sorts. But it was not one that was characterized by the equality of its members. It became all too apparent that the positivist dogma of equality of states was subject to some important caveats. Equality was soon seen to be the preserve

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of the European states and their offshoots in the Americas. The states of the Middle East and Far East were second-class citizens. Much of the rest of the world was not even that, but was reduced either to outright colonial status or else to some form of “quasi-sovereignty,” in the terminology that became common. There was certainly no denying, though, that international law had a far higher profile, in the generations preceding 1914, than it had ever had before. The major legal processes of legislation, adjudication, and enforcement were more advanced than ever before. Legislation proceeded largely in the form of multilateral treaties. The culmination of this global sense of community came with the two Hague Peace Conferences of 1899 and 1907. States even began to go further and to combine into organizations for various defined and limited purposes. Adjudication took the principal form of arbitrations and also of mixed-claims commissions. Enforcement, more ominously, was a matter of self-help—and, as such, a virtual monopoly of the major powers. At the same time, signs of danger were not lacking. Important initiatives in the legal field sometimes failed to bear fruit. And developing countries increasingly chafed at their unequal status. International lawyers, for the most part—and not surprisingly—inclined to dwell on the positive side of their achievements, with some justice. International law proved strong enough even to survive the cataclysm of a Great War.

International Law Becomes a Profession In the nineteenth century, international lawyers became increasingly conscious of themselves as constituting a transnational professional community— a sort of juridical freemasonry. Th is was consistent with the increasing stress, especially by positivists, on international law as a science. Modern science, by its nature, involved free communication and exchange of knowledge across national lines, together with the regular publication of doctrinal writings and the sharing of information about new developments. On the publication front, a major step was taken in 1869 with the founding of the somewhat cumbersomely titled Revue Générale de Droit International et de Législation Comparée. Its joint founders were T. M. C. Asser (from the Netherlands), Gustave Rolin-Jaequemyns (from Belgium), and John Westlake

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(from England). As its title indicates, it was devoted to comparative law, as well as to international law. Four years later, in 1873, came another notable step—or rather pair of steps—with the founding of two international associations of international lawyers in that year. The first was the Institute of International Law. Leading figures behind its establishment included Francis Lieber from the United States (originally from Germany) and Gustave Moynier from Switzerland, who persuaded Rolin-Jaequemyns to summon a conference of international lawyers. Bluntschli then proposed the establishment of a permanent organization, which held its opening meeting in Ghent. The Institute described itself as “an exclusively scientific and unofficial association” to encourage the general progress of international law. It met every second year until 1910, when it shifted to a program of annual meetings. It was hardly an organization for the masses. Membership was limited to sixty persons, along with sixty associate members. But professional international lawyers were not a numerous group in that period. It is noteworthy that there was no attempt to make the Institute into a bastion of mainstream positivist thought. On the contrary, Bluntschli was one of the founders, and Lorimer, too, was an early and active member. The first president was Mancini. From its earliest years, the Institute had an important impact, drafting studies and reports, as well as adopting resolutions, on various topics of international law. In 1904, it became an early recipient of the Nobel Peace Prize. Founded in the very same year as the Institute (1873) was the other principal organization, grandly titled the Association for the Reform and Codification of the Laws of Nations. In 1897, it adopted the more modest name of International Law Association, which it continues to bear. It was a less elite body than the Institute, with no limits on membership. Its mission was to educate the general public on international law issues and to mobilize public support for international law. It also had a somewhat broader subject matter scope than the Institute, encompassing private as well as public international law. More in the scholarly vein was the Carnegie Institution of Washington, endowed from the fortune of the Scottish-born American steel magnate Andrew Carnegie, who was an enthusiast for world peace. It was set up in 1902 to promote research. One of its activities was the sponsorship of the publication, beginning in 1911, of a series of books entitled The Classics of

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International Law, which remain to this day a principal means of access to the earliest writing on international law. A different body was the Carnegie Endowment for International Peace, founded in 1910 for the chief purpose of promoting the abolition of war. Plans were laid, also with Carnegie backing, for the establishment of an international academy for teaching international law, to be located at The Hague. Some additional support for this effort came from T. M. C. Asser, who, after cowinning the Nobel Peace Prize in 1911, donated part of the proceeds to the cause. The coming of war in 1914, however, delayed the project. National societies of international law were established at this time in the larger developed countries. The American Society of International Law was founded in 1906. Its first president was Secretary of State Elihu Root, although the dominant figure in the day-to-day work was James Brown Scott. Scott taught international law for a short time at Columbia Law School— where one of his students was Franklin D. Roosevelt (who later referred to Scott as the “Revered Preceptor of my youth”). He also served as legal adviser to the Department of State, and later as secretary of the Carnegie Endowment. For broader Western Hemisphere reach, there was the American Institute of International Law, founded in 1912. Its leading figures were Scott and Alejandro Álvarez. The German Society for International Law (Deutsche Gesellschaft für Völkerrecht) was established in 1912, with Theodore Niemeyer of the University of Kiel as its leading founder. Along with the various societies came professional journals. The German journal, the Zeitschrift für internationales Privat- und öffentlichhes Recht, began publication 1890 in Leipzig, covering private international law as well as public. The first journal to be devoted entirely to public international law was the French Revue Générale de Droit International Public, which began publication in 1894. Its first coeditors were Paul Fauchille and Antoine Pillet. In Spain, the Revista de derecho internacional y política exterior began publication in 1905, under the editorship of the Marquis de Olivart. In Italy, the Revista di diritto internazionale was founded in 1906, chiefly by Anzilotti. In the following year, the American Journal of International Law began publication, with Scott as editor. The first yearbook of international law was published in Germany in 1913 (the Jahrbuch des Völkerrechts), under the editorship of Niemeyer and a promising young lawyer named Karl Strupp. In the 1880s, the American lawyer Francis Wharton published a Digest of Interna-

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tional Law, embodying state practice in the area, chiefly from the American standpoint. A successor Digest was published, in seven volumes, by John Bassett Moore of Columbia University, in 1907. In 1905, La Pradelle, along with a young Greek lawyer named Nicolas Politis, began publishing a collection of arbitral opinions—the first series of international-law case reports.

Teaching and Learning International Law Along with professional societies and learned journals, a self-respecting scientific profession required some kind of training process or means of admitting new members into the ranks. In this respect, international law lagged far behind other parts of the legal professions. There was not—and still is not—an international bar society with an exclusive power to license persons to practice international law. Moreover, the number of people who could claim international law as a career-long occupation was slender in the extreme. As late as the 1880s, we find Lorimer lamenting that there was not a single example of a first-rate author who had made international law a subject of lifetime study. Ironically, Lorimer’s own career illustrated his point, as his early work had been in the area of Scots law rather than international law. A generation later, things were much the same, with Oppenheim observing that “[t]he majority of the people in [Great Britain] who take an interest in International Law are not jurists and have no legal training.” Most of the major contributors to the subject came late to the field, after specializing in other areas of law. Bluntschli’s professorship at the University of Heidelberg was in constitutional law. He was nearly sixty before he turned his attention to international law. Jellinek, also at Heidelberg, similarly held a professorship in jurisprudence rather than international law. Triepel was a scholar of constitutional law as well as international law. In the United States, Francis Lieber, the drafter of an influential code on the conduct of war, was, like his friend Bluntschli, primarily a political scientist. Theodore Dwight Woolsey, the first teacher of international law at Yale Law School, began his career as a professor of classics. Westlake’s early expertise was in private international law. The same was true of Mancini. Fiore originally taught philosophy, as well as constitutional and administrative law. Louis Renault had originally specialized in Roman law and commercial law, and then in criminal law.

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It is remarkable (and not readily explicable) how many international lawyers began their careers in the field of criminal law. Heffter was one (with civil procedure as another of his major academic interests). Oppenheim was another, as was Heinrich Lammasch, the most prominent Austrian international lawyer. Francis Wharton in the United States was similarly distinguished in criminal law, most notably as an influential figure in the development of the insanity defense. Franz von Liszt, from Germany, was the most striking example, in that, throughout his career, criminal law remained his principal interest, with international law as a sideline. International law was slow in obtaining a place in university curricula—a process that still awaits adequate study. An early professorship in the subject was established at the University of Turin, with Mancini as its first holder in 1851. It was the English-speaking world, however, which took the leading part. In Canada, international law was taught first at McGill University in Montreal in 1856, and then at Laval University the following year, as well as at Dalhousie University in Halifax from the time of its foundation in 1883. The mother country soon followed suit. In 1859, the Chichele Chair of International Law and Diplomacy was established at Oxford University. At Cambridge, the Whewell Chair in International Law was founded in 1867. Westlake and Oppenheim were eminent holders of it prior to 1914. In the United States, Harvard Law School attempted to enlist Wheaton to teach international law in the 1840s, but illness prevented his taking up the offer. The earliest university instruction in the subject may therefore have been at the newly founded University of Wisconsin, in 1852. At Yale University, Woolsey began teaching the subject after stepping down as the university’s president in 1871. Instruction in the subject began at Columbia Law School in 1880. But it was not until 1891 that the Hamilton Fish Professorship of International Law and Diplomacy was created—the first full professorship in the subject in the country. Its inaugural holder was John Bassett Moore, who remained in post for an impressive stretch of thirty-three years. The first course in international law at the University of California at Berkeley took place in 1891–92. In 1898, Harvard Law School appointed its first international-law professor (although lectures had been given in the subject in the 1860s). Harvard Law School later became a major center of internationallaw scholarship, after it acquired the massive library of the Marquis de Olivart, the noted Spanish scholar, in 1912. This collection formed the basis

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of what became, for many years, the standard bibliography of international legal literature. Even when international law was taught in universities, there was some division of opinion as to whether it was best done as part of a law curriculum. Some regarded it instead as part of the study of public affairs in general, rather than as a matter for legal specialists. John Stuart Mill was of this persuasion. In his inaugural address as rector of St. Andrews University in Scotland in 1867, he contended that international law should form “a part of all liberal education.” The reason, he explained (in the spirit of Austin), was that international law is not “properly law” but instead is “a part of ethics.” More surprisingly, Westlake, at Cambridge, expressed a similar opinion in his 1888 inaugural lecture for the Whewell Chair. “International law is no more a subject for specialists,” he maintained, “than home politics are.” There was accordingly some tendency in the English-speaking world for international law to be taught in association with jurisprudence or legal philosophy, in memory of the long association of international law with natural law. In the United States, it was common for international law to be taught (as at Columbia) in conjunction with such subjects as history, diplomacy, or political science. To the present day, the title “international lawyer” is a somewhat loose one, not necessarily confined to qualified lawyers. In Germany, there was not a single academic chair devoted wholly to international law until 1912. This may have been a reflection of a tendency of German academics to see international law as part of public law in general rather than as a distinct discipline—a state of affairs that largely continues to the present day. In 1914, an Institute for International Law was established at the University of Kiel (Rachel’s old institution) by Theodor Niemeyer. Under Niemeyer’s leadership, Kiel became the foremost center in Germany of international law studies.

International Lawyers in Public Service For international-law scholars to put their knowledge to practical use was nothing new. It has been observed that Grotius and Vattel both did diplomatic work and that G. F. von Martens was active in various forms of government ser vice. This public-spirited trend continued throughout the nineteenth century. Diplomatic ser vice remained a common outlet for legal

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skills. Wheaton and Calvo served as ambassadors for their respective countries (Calvo did ser vice for Paraguay and the Vatican, as well as for Argentina). So did Bello and Alberdi. In Belgium, Rivier served for a time as consul general for his native Switzerland. An especially important external sign of the growing importance of legal issues in international relations was the employment of in-house legal counsel by foreign offices (a process on which there is a great deal of light yet to be shed). In the case of Britain, the practice dates effectively from 1876, with the appointment of Julian Pauncefort as legal assistant secretary in the Foreign Office. In France, the grand-sounding position of jurisconsult to the Ministry of Foreign Affairs was created in 1890, specifically for occupation by Renault. Over the years, he represented France at many international conferences. In 1903, he was accorded the even grander title of minister plentipotentiary and envoy extraordinary. Fedor Fedorovich von Martens served the Russian government as a legal adviser for some forty years, beginning in 1869. Phillipp Zorn performed similar ser vice for Emperor William II of Germany. Both Fiore and Anzilotti advised the Italian foreign ministry. In Latin America, Bello, and later Álvarez, served the Chilean government. The American government made especially liberal use of international legal expertise at this level. Moore, for example, worked for the Department of State in 1886–91, before taking up his professorship at Columbia. Even after that, he periodically provided legal assistance to the government (such as advice on the conclusion of the peace treaty with Spain in 1898 at the conclusion of the Spanish-American War). Robert Lansing, a highly experienced practitioner of international law, became a legal adviser in the Department of State. Lawyers sometimes labored in foreign countries. A French lawyer named Paul Pradier-Fodéré, for example, went to Peru in 1874, chiefly to reorganize the Department of Political Science and Administration at the University of Lima. While there, he founded the Faculty of Political and Administrative Sciences, taught a number of courses, and was named to the country’s Superior Council of Public Instruction. Rolin-Jaequemyns spent about ten years in Siam (in 1892–1902), where he performed a range of legal and administrative ser vices. On occasion, international lawyers served as foreign ministers of their countries. Most conspicuous in this regard was Mancini, who was Italian

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foreign minister in 1881–85. In Argentina, Amancio Alcorta, an erstwhile professor of international law at the University of Buenos Aires (and treatise writer), served several stints as foreign minister in the period 1895–1902. (He is not to be confused with the later president of Argentina, of the same surname.) In the United States, William Evarts, one of the most famous lawyers in the country—with ser vice in international arbitration—served as secretary of state in 1877–81. Elihu Root, also a distinguished lawyer, was secretary of state in 1905– 09—and (as noted earlier) the first president of the American Society of International Law. Judicial ser vice was another outlet for the public spirit. Robert Phillimore, the author of the first comprehensive British treatise on international law in the 1850s, served on the admiralty bench. Heffter was a judge in Germany. In the United States, James Kent, who did the first systematic survey of international law in his country (as part of a larger discourse, rather than as a stand-alone treatise), was a chancellor in the New York State courts of equity, in addition to teaching law at Columbia University. Wheaton also served in minor judicial posts, apart from his work as a Supreme Court reporter. Most appropriate for international lawyers was ser vice as international arbitrators, as will be noted later. Sometimes, international lawyers held political posts of varying degrees of importance. Calvo, for example, served in the Argentine congress for a time. Alberdi was instrumental in drafting his country’s constitution of 1853, in addition to serving in the Argentine congress. Alcorta served in that country’s chamber of deputies, as well as holding cabinet posts in the fields of government affairs and the economy. Fiore was a member of the Italian senate. Rolin-Jaequemyns was minister of the interior in Belgium for six years (in 1878–84). In Germany, Liszt was a member of the Prussian chamber of deputies and of the imperial Reichstag, belonging to the Progressive People’s Party. Westlake was briefly a member of the British House of Commons (as a Liberal), prior to taking up the Whewell professorship at Cambridge. His predecessor in that post, William Harcourt, was far better known as a practicing politician than as a legal scholar. He was a major figure in the British Liberal Party, serving as home secretary and chancellor of the exchequer— though he was unsuccessful in his bid to become prime minister in 1894 when William Gladstone (finally) retired. It may be noted incidentally that American President Benjamin Harrison, after leaving the White House in

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1893, did international legal work, ably representing Venezuela in 1898–99 in an arbitration against Britain over the boundary with British Guyana. For activist roles in public life, it would be difficult to exceed that of Henry W. Halleck in the United States. A graduate of West Point, his first contribution to public life was in the professionalization of military studies (which earned him the derogatory nickname of “Old Brains”). After military ser vice in the Mexican War, he became a principal drafter of the California state constitution, then a prosperous practicing lawyer and businessman. Amid this activity, he produced his treatise on international law in 1861 and then promptly became a general in the Union armies in his country’s Civil War, rising to the post of supreme commander of the Union forces.

Two Who Stood Out In this period when a genuine community of international lawyers can be said to have formed—the generation before 1914—two figures may be identified as the most prominent: Martens and Renault. As will be observed presently, these two were the most prominent figures in various international conferences of the period, as well as in arbitrations. Fedor Fedorovich von Martens was no relation to his German namesake from a century earlier. He was born in Estonia to a poor Lutheran family and orphaned at an early age but had the good fortune to attend the University of St. Petersburg and then to study abroad. At the University of Heidelberg, he attended lectures by Bluntschli, and at Vienna by Stein. Both of these men made a great impression on the young lawyer. After returning to Russia, he served as legal adviser to the foreign ministry for some forty years, from 1869 until his death in 1909. For most of that period, he doubled as a professor of international law at the Imperial School in St. Petersburg. In a busy professional life, he somehow found time to pen a three-volume treatise on international law, published in 1883. A clear sign of an earnest personality was his motto: “Labor omnia vincit” (“labor conquers all”). He also had the remarkable distinction of being the subject of a novel in the late twentieth century—a form of recognition without parallel in the profession. (In the course of the novel, Martens becomes briefly transformed into his earlier German namesake.)

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Renault was the son of a bookseller from Autun. He studied literature at the University of Dijon, and then law at the University of Paris. After returning to Dijon as a lecturer in Roman law and commercial law, he transferred to Paris in 1873 to become a professor of criminal law. He entered international law largely by accident. A vacancy in the area arose in the Paris faculty, which Renault agreed to fi ll on a temporary basis. But he continued teaching it for the rest of his career, right up to his death in 1918. He became a professor in the subject in 1881 (although still continuing to teach commercial law, even coauthoring a nine-volume treatise on the topic). The two men shared a number of attributes. Both were longtime advisers to their respective foreign ministries (Russia and France), representing their countries at a number of conferences over the years. Both combined this task with university teaching. Both were very active in international arbitrations, too. Renault served as an arbitrator on six occasions, and Martens on five. For his ser vices in this area, Martens earned the sobriquet of the “chief justice of Christendom.” They shared a notable intellectual feature as well, in that neither was dogmatically tied to mainstream positivist thought. They were both eclectics. It has been observed that Martens showed some passing sympathy with liberalism. In his treatise, he expressed strong criticism of both positivism and natural law and gave some signs of an affinity with solidarist thought. International law, he asserted, was now in the process of entering a third age (after the natural-law and the positive periods), in which “the solidarity of interests” of states would loom increasingly large. He insisted that the basis of the emerging new law must not be the absolute independence of states, but rather “the idea of the international community according to which each State is tied to the other States by interests and common rights and forms with them an organic whole notwithstanding its independence.” Renault is difficult to pigeonhole in intellectual terms, since, unlike Martens, he never produced a substantial treatise on international law. But his outlook was basically Grotian, in the pragmatic tradition of Zouche and G. F. von Martens. He carefully avoided fully committing himself exclusively to either positivism or natural law, preferring a blend of the two. A resolute nonutopian, he insisted that international law must be rooted in the events and relationships of the real world—but also that it must be shaped and informed by reason and by the critical spirit of natural law.

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In personal terms, the two men were rather different. Martens was a somewhat haughty and self-important figure (scorned by one fellow conference participant as having “an explosive lack of tact”). Renault, in contrast, was the incarnation of modesty, self-effacement, and generosity. If he was never the author of a magisterial treatise, as Martens was, he nonetheless stands out as the great international-law teacher of the period. Concurrently with his appointment at the University of Paris, he taught at the School of Political Sciences and at two of the military schools. Over the course of his fortyfour year teaching career, he is said to have directed an astonishing total of 252 doctoral theses and to have taught a number of persons who achieved later eminence (including Álvarez, who regarded him as a major inspiration behind his thinking). If any one deserves the title of schoolmaster of nineteenth-century international law, it is he.

Abroad in the World It will be recalled that one of the most important features of international law, to the mainstream positivists, was its fundamentally contractual character— it was a law between nations. That immediately implied that international law could not be truly worldwide in scope—a point that writers in the naturalist school of the seventeenth and eighteenth centuries, such as Cocceji, had made. Like any man-made system, international law must inevitably bear traces of the historical context in which it was formed. That meant, specifically, that international law must be acknowledged to be, first and foremost, a product of European civilization. In this vital respect, the contrast with the natural-law outlook could hardly be starker. Natural law was a thoroughly cosmopolitan system, embracing all cultures, religions, and races and regarding the whole of humankind as ultimately a single family (and ideally a harmonious one at that). In this vision, there was no room for according a privileged status to the European states and their offshoots. But the position was far otherwise on the positivist view. The elaborate system of customary and treaty law that built up over time, and especially throughout the nineteenth century, was the product of European effort. And since international law, by its nature, was seen as a contractual system, it inevitably followed that the only states that were full members of

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the international legal community were the European states which had participated in its making. This point was readily acknowledged by positivist writers. The British lawyer William Edward Hall, for example, matter-offactly held international law to be “a product of the special system of modern Europe”—and, as such, to be what he described as a “highly artificial system” that “cannot be supposed to be understood or recognised by countries differently civilized.” The position was, ironically, much like that of the ancient Greeks, who acknowledged certain general norms to be applicable within the community of independent Greek states, but not to the barbarians outside. But what was the position regarding these outsiders? In answering this question, international lawyers adopted a classification that was propounded by various writers in the newly emerging field of anthropology. In 1877, an American anthropologist—and lawyer—named Lewis Henry Morgan published a treatise on Ancient Society, which set out a three-tier classification of human societies, based not on race or religion, but on the level of cultural development. The three categories of peoples were designated as civilized, barbarian, and savage. A number of international lawyers adopted this threefold schema, including Lorimer, Woolsey, Bonfils, and Nys. By civilized states were meant, of course, the Christian European countries, plus their ex-colonial offshoots such as the Western Hemisphere republics. In the barbarous category were the non-Christian states with a high degree of central government—the Ottoman Empire, Persia, China, Japan, and Siam. In the savage group were the myriad tribal and national groups of Africa and the Pacific islands. International law as the positivists conceived it—with their resolute insistence on the legal equality of states—was applicable only within the circle of civilized states, since only those states had participated in its construction. On the delicate question of legal relations with the states of the other two categories, there was a certain vagueness. Phillimore held that international law did hold between Christian and heathen states, as well as between heathen states inter se, though only in “a vague manner and less perfect condition than between two Christian communities.”  Bonfi ls opined that the principal Asian states such as China and Japan did not qualify for what he called “plenary recognition” as members of the international community, but instead merited only what he called “partial recognition.” 

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In 1877, the question of the applicability of European international law to the oriental states was placed on the agenda of the Institute of International Law, with the British admiralty lawyer Travers Twiss appointed as rapporteur for a study on the subject. Nothing very definite came of this effort, however. In 1879, Twiss recommended dropping the issue from consideration, although he did remark that a distinction should be made between, on the one hand, the more advanced and centralized states such as Turkey, China, Japan, and Persia and, on the other hand, “pagan and semi-savage populations.” There was only one clear example of formal transfer of status from the category of barbarous to civilized: that of the Ottoman Empire. In the Treaty of Paris of 1856, at the conclusion of the Crimean War, Turkey (which had been allied to Britain and France during the conflict) was formally invited to “participate in the advantages of the public law and concert of Europe.”  To the present day, Turkey stands universally acknowledged to be a European state.

Exporting International Law to the Far East The principal figure in China’s introduction to the international legal ways of its overseas strangers was an American medical missionary (and future ambassador to China) named Peter Parker. He founded China’s first hospital in Canton in 1835 and later introduced the practice of anesthesia. In addition, he introduced a mild tonic for the body politic of the country, in the form of a translation into Chinese (rather loosely) of three passages from Vattel’s treatise. This occurred in 1839, at the request of the Chinese governor general of the provinces of Hunan and Hupeh, in the context of a dispute over China’s right to prohibit the importing of opium, in which British traders were then doing a worryingly lively business. One of the passages asserted the right of states to prohibit imports of foreign goods, as an exercise of state sovereignty. Another concerned the right to wage war in vindication of rights that had been violated. The Chinese government promptly moved to make use of this exotic intellectual import. It enacted an official prohibition against the importing of opium, rendering the valuable trade illegal at a stroke. That was not, however, the end of the story. The enforcement measures that China took against opium smugglers caused offense in Western quar-

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ters, leading to armed conflict with Britain, in the form of the so-called Opium War of 1839–42. The legal issue in the conflict, though, was not China’s right to prohibit the trade. That was always conceded, both before and after the hostilities. The legal casus belli was an allegation of mistreatment of British nationals who were accused of violating the Chinese laws and taken into Chinese custody. The Chinese took a further step in the adoption of Western international law by having Wheaton’s treatise translated, in its entirety, into Chinese in 1864. Th is was the work of another American missionary, William A. P. Martin. Western diplomats were not unambiguously pleased to see this knowledge being brought to Chinese attention. The French chargé d’affaires in the country is said to have grumbled that China could cause “endless trouble” if it were armed with this legal ammunition. An American diplomat was similarly concerned that the Chinese might start looking for legal grounds to contest the various unequal treaties to which it was being energetically subjected. That there was some foundation to these worries was demonstrated almost immediately, when China became embroiled in a dispute with Prussia. This was over the capture by Prussia, in 1864, of a Danish ship in Chinese territorial waters (Prussia and Denmark then being at war over SchleswigHolstein). The capture was in violation of China’s rights as a neutral state. With some welcome assistance from Wheaton’s text, the matter was resolved to China’s satisfaction, with the Prussian government releasing the ships and paying $1,500 in compensation. Chinese officials were duly impressed with their new discovery. Conceding that Wheaton’s treatise “contains sporadic useful points,” the chief minister of the Chinese government ordered three hundred copies to be distributed among provincial functionaries. As a reward for his contribution, Martin was made president and professor of international law at the Tongwen Guan Library (the Academy of Foreign Languages) from 1868 to 1894, and then became the first chancellor of the Imperial University of Peking (1898–1900). In the course of this second career, he became the foremost Western student of traditional Chinese approaches to international law and international relations. He also continued his noble task of making Western international-law literature accessible to the Chinese. This included translating Woolsey’s Introduction to the Study of International Law into Chinese in 1877, as well as a Manual of War compiled

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by the Institute of International Law in 1880. A team under Martin’s guidance also translated Bluntschli’s treatise. Japan’s introduction to Western international law differed from that of China in that it involved going directly to the source of the new learning. In 1862, two Japanese scholars were sent to the University of Leiden. One of them, Nishi Amane, was already something of a specialist in Western ways, having worked as a translator at the Nagasaki trading station, the sole port where trade with the West (i.e., the Dutch) was carried on. In two years at Leiden, Nishi and his companion attended lectures by Simon Vissering, a professor of politics, who was also learned in economics and would later serve as Dutch minister of finance. His teaching was primarily in the areas of constitutional law and political theory, but it included jurisprudence and international law as well. (Vissering was also the discoverer and publisher of Grotius’s De Indis, published as A Commentary on the Law of Prize and Booty). In the course of these studies, Nishi was influenced by Kant’s essay on Perpetual Peace. He became acquainted, too, with the positivist and utilitarian ideas that were prevalent in Europe at the time, particularly the writings of Comte and Mill. In 1866, after his return to Japan, Nishi published a four-volume work entitled Bankoku kōhō (“International Law”) based on Vissering’s teaching. His major contribution to his country’s modernization, however, would prove to be in the area of military studies rather than law. In the meantime, Wheaton’s treatise had been imported into Japan, first in 1865 by way of a translation of Martin’s Chinese version (as “The Public Law of the Ten Thousand Nations”), and then in a second translation (apparently at least in part from the original) three years later. This new knowledge proved welcome, as international-law issues were facing the country. An early dilemma, in the wake of the Meiji Revolution of 1868, was the question of the country’s continued adherence to treaties that had been concluded by the now-overthrown Tokugawa regime. After an intense debate within the government, it was announced, in February 1868, that the treaties would continue to be honored. Two years later, the new learning proved useful in the drafting of a Japanese declaration of neutrality regarding the Franco-Prussian War. In 1894, Japan found further use for international lawyers when war broke out against China. Both the land and naval forces of Japan were provided with

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international-law expertise on the spot. For the naval forces, there was Takahashi Sakuyei, who was professor of international law at the Imperial University in Tokyo and a member of the House of Peers in the Imperial Diet. For the land forces, there was Ariga Nagao, who also advised on the wording of the Japanese declaration of war. Ariga studied law in Germany and had been professor of international law at the Army College in Tokyo since 1891 and the author of a textbook on the laws of war. He later taught international law at the Universities of Tokyo and Waseda. Both men wrote defenses of Japan’s actions for Western consumption, Takahashi in English and Ariga in French. Both did further service for their country in the Russo-Japanese War of 1904–5. On that occasion, Takahashi (the more prominent of the two) was legal adviser to the foreign ministry. Ariga was again assigned to the land forces, where he helped to negotiate the Russian surrender of Port Arthur. The Japa nese government also imported some Eu ropean expertise in international law on the hoof (as it were). This occurred in 1872, when the government induced a French scholar named Gustave Boissonade to come the country to advise it on the draft ing of legal codes. He ended up spending twenty-one years there. An early task was to act as a legal adviser on the Japa nese government’s Taiwan expedition of 1874, which was mounted in response to the killing of some Okinawan fishermen by Taiwanese aboriginals. Japan obtained one solid benefit from this fi rst excursion into international law enforcement: China’s formal acknowledg ment of Japan’s title to Okinawa. For his various ser vices, Boissonade was awarded the  Order of the Rising Sun (second degree) in 1876, a rare honor for a foreigner.

Extraterritoriality The barbarian states (as they were called) may have been exposed to the Western science of international law, but it should not be supposed that they were regarded as equals of the civilized states. They were not regarded as participants in the full range of customary practices that had grown up in Europe (and its offshoots) over the centuries. The ties were thinner, basically consisting only of treaty relations. The most outstanding sign of the secondary status of the barbarian states was the phenomenon known as “extraterritoriality.” This is a somewhat

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unfortunate term, as it might be thought to imply some sort of control by one country over territory located in another. This was not so. “Extraterritoriality” referred to certain important privileges held by foreign nationals, conferred by way of bilateral treaties. The principal privilege consisted of the foreigners’ being exempted from the legal processes of the host country, in favor of trial by officials of their home states instead. In principle, the foreigners remained subject to the substantive law of the host country, but not to its trial procedures. Sometimes the adjudication was conducted by consular officials of the home state, so that the expression “consular jurisdiction” came into common use. In Egypt, there were “mixed courts” with both Egyptian and Western personnel—but with the Western interest predominating. Extraterritoriality and consular jurisdiction were not inventions of the nineteenth century. They had roots in the Middle Ages, when Europeans established resident communities in the various major trading cities of the Byzantine and Muslim worlds. These entailed the use, within these communities, of the law of the traders’ home states, rather than of the place in which the settlement was located. The treaties granting extraterritorial privileges in the Ottoman Empire were known as capitulations. The first of these were granted to the cities of Ragusa and Genoa around 1400. The first one with a major power was concluded in 1536, as part of the military alliance of that year between France and the Ottoman Empire. Renewals of these agreements were continually required, as they applied only during the lives of the rulers concluding them. Finally, in 1740, France and the Ottoman Empire concluded a capitulation of indefinite duration, which continued in force into the twentieth century. These arrangements proved readily extendable to the Far East. The process began as early as 1727, when a treaty between China and Russia provided that disputes between members of Russian trading expeditions to China would be dealt with by Russian officials. The pace picked up after the conclusion of the “Opium War” between Britain and China in 1842. The Treaty of Nanjing, which concluded the hostilities, did not provide for extraterritoriality privileges. But they appeared in a set of resolutions promulgated soon afterward. The first appearances of extraterritoriality in treaty texts occurred in 1844, in agreements that China concluded with the United States and France, followed by one with Sweden three years later. Agree-

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ments with some twenty other countries were concluded over the next sixty years. Extraterritoriality arrangements were not a European monopoly. Peru, Brazil, and Mexico also possessed them, as did Japan following its victory over China in the Sino-Japanese War in 1894–95. Extraterritoriality was applied elsewhere in the Far East. In 1855, Britain became the first country to acquire extraterritorial rights for its nationals in Siam. Various other Western states rushed to follow the British lead. The process began in Japan in 1857, in a treaty concluded with the United States. Here too, other countries soon followed. Only in rare cases were extraterritoriality privileges reflected in geographically demarcated enclaves. The most famous of these was the International Settlement of Shanghai in China. This dated from 1854, when a municipal council was formed for the administration of areas of settlement of British, American, and French residents. (The official label “International Settlement” was adopted in 1863.) Nationals of many other states came to reside there as well. The settlement territory always remained formally under Chinese sovereignty, although in practice it became a self-governing area (with British influence always dominant). There was never a unified law for the area. Persons of each nationality continued to benefit from the extraterritoriality arrangement concluded between their respective home countries and China. It is pleasing to report that the story of signs being posted saying “No dogs or Chinese allowed” is a piece of urban mythology (although it is true that Huangpu Public Garden in Shanghai was off-limits to nonsettlement residents and also, inter alia, to dogs, in 1890–1928). Attitudes toward extraterritoriality privileges varied in the countries that were subject to them. In China, they were relatively uncontroversial (at least during the imperial period, which ended in 1911). This was because of a long Chinese tradition of regarding law as fundamentally personal rather than territorial. In Japan, however, extraterritoriality rapidly became a source of serious public resentment. But the Japanese government succeeded in bringing the practice to an early end—the only country to do so prior to 1914. Beginning in 1894, with Britain in the lead, the various Western states concluded bilateral agreements with Japan discontinuing the regime of special privileges. This development could be regarded as constituting, in effect, Japan’s full admission into the ranks of the civilized states. Other extraterritorial regimes continued well into the twentieth century.

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The Savage World Even more problematic than relations between the civilized and the barbarian states were those between the civilized and the savage states, where even treaty relations were frequently lacking. Some doubted whether there could be any legal ties at all between the two groups of states. John Stuart Mill was very candid on this point. “To suppose that the same international customs, and the same rule of international morality” could prevail with savage nations as with civilized ones was, he insisted, “a grave error.” The reason was the absence of a common underlying principle of reciprocity, which was the essential basis for the rule of law. As a result, according to Mill, no course of conduct toward a savage state could ever constitute a violation of the law of nations. Positivist lawyers tended to agree. More specifically, they were inclined to hold that relations with the savage states were governed by considerations of morality, but not of law, properly speaking. The result of this way of thinking was to place questions of relations with the savage states outside the conceptual framework of mainstream positivist thought altogether. For this reason, nineteenth-century international lawyers accorded remarkably little attention to the phenomenon of imperialism. In fact, legal aspects of nineteenth-century imperialism in Africa, Southeast Asia, and the Pacific remains a seriously underexplored subject to the present day. The contrast with European imperialism of the fourteenth to seventeenth centuries is very striking in this regard. It has been observed that, in the earlier period, considerable attention had been given to legal issues. The explanation, of course, lies in the fact that, in that earlier period, the dominant legal framework was natural law—with its inherently universalistic ethos. Nineteenth-century lawyers were largely content to engage in a classification process regarding states that were less than fully sovereign (or merely “quasi-sovereign,” to employ a term that came into use during this period). Quasi-sovereignty came in various forms. Protectorates, for example, were basically states that were internally self-governing but whose foreign relations were conducted by one of the major powers. The term was invented in 1815 to describe Britain’s oversight of the Ionian Islands in the Mediterranean. Terminology was sometimes borrowed from medieval feudal law, with some countries described as vassal states. “Suzerainty” was another feudal import that was dragooned into the ser vice of nineteenth-century

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imperialism. It was, like so many of the terms, rather loosely used, generally to mean that the subordinate state could act independently, but subject to an obligation to do nothing incompatible with the interests or wishes of the superior (or suzerain). Some countries were described as tributary states. Sometimes, native states were nominally independent but with the rulers receiving “advice” from major powers. There were also “sphere of influence” arrangements, in which powers agreed to allow one another a free hand, without interference, in a designated area. These were essentially agreements not to compete—but not involving any purported conferring of legal title.

Lawmaking in Action It has been observed that, to the mainstream positivist lawyers of the nineteenth century, international lawmaking was a bottom-up rather than a topdown process. The two principal mechanisms for this do-it-yourself lawmaking were customary practice (suitably fortified by opinio juris) and treaty making. There were some important innovations in the nineteenth century, though. Most outstanding was the practice of concluding multilateral treaties—a process that reached its highest pitch at the Second Hague Peace Conference of 1907. There were also some who favored—and others who opposed—the codification of international law itself.

Multilateral Treaties One of the most striking features of the nineteenth-century international legal scene was the prevalence of multilateral conventions. They were not actually an invention of the nineteenth century, but their widespread use dates from that period. Important early examples were the Treaties of Paris of 1814–15. Prior peace arrangements at the conclusions of multistate wars had generally consisted of sets of bilateral treaties. The earliest major multilateral convention devoted to international law points was the Declaration of Paris of 1856, which was a side initiative at the Paris Peace Conference of that year (the chief task of which was to end the Crimean War). In providing for the principle that “free ships make free goods,” the declaration was replicating the common bilateral treaty practice of the European maritime

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states over the previous two centuries. It also broke some new ground, chiefly in its firm statement that privateering was abolished. The declaration was highly successful in attracting support from other countries around the world, attaining over forty ratifications. Significantly, the parties included Britain, which had previously resisted the “free ships–free goods” principle (on the ground that it unduly restricted the employment of British naval power). Soon after this, there were some important multilateral conventions on war matters. These marked the first concrete steps in fulfillment of Vattel’s vision of a code of conduct that would govern warfare—and put an end to the reliance on the principle of military necessity as the sole governing principle in the laws of war. The first of these initiatives was a convention in 1864, drafted by the newly founded International Committee of the Red Cross. It provided for the immunity of medical personnel on the battlefield from attack. In 1868, some additional articles were concluded, further extending the protection. Then, in 1906, protection was extended to wounded soldiers themselves, by imposing onto captor states a duty to care for wounded enemy troops. An international conference in St. Petersburg in 1868 produced another interesting innovation. This was an international agreement on the prohibition of a weapon—something last done (or attempted) in 1139, when the Second Lateran Council prohibited the use of crossbows (against Christians). The concern on this occasion was the possible development of exploding bullets. To forestall such a possibility, the conference issued a declaration, in which all parties promised not to deploy such a weapon. More important, by far, than this prohibition against exploding bullets was a statement, in the preamble of the Declaration of St. Petersburg, of two very general principles that were—and remain—of cardinal importance for the laws of war. One was a general condemnation of “arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.” The other was a similarly general statement that “the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy.” That meant that, as a matter of fundamental principle, war is to be waged only against the armed forces of the opposing side and not against civilian populations. This continues, to the present day, to be a cornerstone of the laws of war—if not always, sadly, of the practice.

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Multilateral conventions were not invariably about war. Rules regarding undersea electric telegraph cables, for example, were concluded in 1884. A conference in Berlin in 1884–85 dealt with various issues in the colonization of Africa. Among the achievements of the conference was the establishment of some general rules over future acquisitions of territory in Africa by the imperial powers. Contrary to the belief of many, however, the conference did not actually allocate identified areas to particular states. Slave trading was another subject that (eventually) came under multilateral scrutiny. There had been a general declaration on the subject at the Congress of Vienna, although it had had no great practical effect. The British government acted against the Atlantic slave trade by concluding bilateral treaties with various countries, allowing its naval vessels to visit and search foreign ships suspected of transporting slaves (and then liberating any slaves found). But concrete action at the multilateral level only came in 1889–90, at a conference in Brussels. The Final Act established an International Maritime Office in Zanzibar and endorsed the visit-and-search practice. A host of other walks of life came to be subjected to international regulation of one form or another. In 1890, the major continental European states concluded a convention on railway freight traffic. In 1904, a group of ten European states drafted a treaty for dealing with the anarchist menace. There were treaties, too, about the white slave trade, the safety of life at sea, various aspects of public sanitation, and regulation of production and trade in sugar. In addition, there were two treaties providing for humane treatment of workers: one barring the use of white phosphorus in the production of matches and the other prohibiting night work for women. An international convention on automobile movement, concluded in 1909 by the major European states, included such requirements as license plates indicating state of origin. The formation of various international organizations in the late nineteenth and early twentieth centuries has already been noted.

The Debate over Codifying International Law The question of the codification of international law exposed some important divisions within the international legal profession. In general, lawyers of the positivist stripe inclined against it, on several different grounds. Some objected to codification as a conservative, stultifying force. It would have

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the undesirable effect of “freezing” international law into the state in which it happened to stand at the particular point in time when the codifying was done. From this standpoint, the modernist viewpoint of positivism was to the fore. Positivists were frequently very conscious of international law as an ever-growing, ever-evolving subject, requiring constant updating in the light of ever-changing conditions in the real world. Jellinek was among those who opposed codification on this ground. At the same time, there were memories of codification as a standard tool of natural lawyers, who, in the eighteenth century, had sought to remake positive law along the rationalistic lines marked out by the speculative science of systematic jurisprudence. Codification in this sense was designed to remake law into a coherent, rational system free of gaps. But this was, of course, precisely what positivists insisted that international law should not be. International law, on the mainstream positivist view, was an assemblage of basically contractual arrangements, a product of ever-changing human will—and, as such, not susceptible, by its very nature, of being artificially “tamed” or channeled into a single, neat intellectual system. More concretely, it was objected that codification in this systematic sense would entail crossing a crucial line: between, on the one hand, merely stating the law and, on the other hand, making new law. Making new law, the positivists generally insisted, is and must remain the prerogative of states and not of self-appointed intellectuals, who were all too likely to pursue their own favored dogmas as to what the law should be. Despite these misgivings by positivists, some scholars set about producing codifications on their own initiative. The first major effort to encapsulate international law into the form of a code of articles was by a German named Alphonse von Domin-Petrushevecz, who, at the advanced age of twenty-six, published a code in 1861. Shortly after this came the best-known private codification, by Bluntschli in 1868, which covered the whole of international law. His text took the form of a set of rules with a commentary on each—so that the overall result was to create both a code of international law and a general textbook on the subject. Fiore followed in this path in 1890. In 1872, David Dudley Field published his Outlines of an International Code, which dealt in large part with private law matters, being fairly cursory on the law governing interstate relations. Codification also took a more modest form—of putting some selected area of the law into order, rather than dealing with the whole of interna-

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tional law. The pioneering work in this sphere was Francis Lieber’s summation of the laws of land warfare, produced at the behest of Lieber’s friend Henry Halleck, then commanding the Union armed forces. It was completed in 1863 and promptly promulgated by President Lincoln as a general order to the Union armies. Lieber’s code attracted a great deal of interest and admiration in Europe. For example, it was the immediate inspiration behind Bluntschli’s codification of international law. It also inspired the convening of a conference of legal experts in Brussels in 1874 who engaged in a similar codification (known as a projet) of the laws of land warfare. The most important codification work came from the Institute of International Law. It produced a manual on the law of land warfare in 1880, and one on the law of maritime warfare in 1913, as well as a manual on prize law in 1882–83. Other notable topics that received the attention of the Institute in the period prior to 1914 included diplomatic immunity, consular-court jurisdiction in Asian countries, navigation of rivers, territorial waters (specifying a width of six nautical miles for territorial seas), contraband of war, and the effects of war on treaties. Of particular interest were two sets of rules that the Institute drafted in 1900 on civil wars—on injuries to foreigners during civil conflicts and on the position of foreign governments in cases of civil strife. None of these Institute achievements had any official status, since the organization was a private body. They were not treaties between states, or laws promulgated by governments. But the prestige of their drafters ensured that careful attention would be paid to them in government circles. At the end of the nineteenth century, though, and the beginning of the twentieth, a concerted effort was made to put small-scale codification efforts of this kind onto a solid legal footing—and thereby to make a great step forward in the process of what Oppenheim called “international legislation.” The most conspicuous initiatives along this line were the two Hague Peace Conferences of 1899 and 1907.

The Hague Peace Conferences The earliest multilateral treaties, such as the Declaration of Paris, had typically been concluded by a small group of like-minded states—with the rest of the world then cordially invited to adhere to the finished product. Only at the very end of the century was the step taken of inviting the states of the

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world in general to participate, en masse, in the drafting of international legislation. This took place at the First Hague Peace Conference, held in 1899 at the instigation of the Russian government. The first conference actually fell far short of including all countries. An impressive twenty-six states were represented—but this included only three from the Western Hemisphere (the United States, Mexico, and Brazil). The major independent Asian states (China, Japan, and Siam), however, were present. Bulgaria was permitted to attend, even though it was merely an autonomous region within the Ottoman Empire. (The Turkish government made no objection to its attendance.) Moreover, in a significant acknowledgment of the principle of legal equality of states, it was agreed that each country, regardless of size or strength, would have a right to equal representation with all others on the various committees that were formed. It was also understood— though not formally stated in any rules of the conference—that there would have to be unanimous agreement of all states to any decisions (with the proviso that abstentions would not prejudice unanimity). A number of prominent international lawyers were present as “scientific delegates.” The most prominent was Martens, the effective delegation leader of the state that had initiated the conference. He was said to have “allowed no one to forget that he enjoyed a reputation as Europe’s leading jurist in his field.” Renault was on the French delegation. Philipp Zorn, then of the University of Königsberg, was the legal adviser to the German delegation. Present for Austria-Hungary was Heinrich Lammasch, a law professor at the University of Vienna. The British delegation was led by Pauncefort (now serving as ambassador to the United States). Ariga was present for Japan. On the Dutch delegation was Asser, then serving as president of the Institute of International Law. Rolin-Jaequemyns’s son, Édouard (on his way to being a distinguished international lawyer in his own right) represented Siam, for which he was acting as consul-general in Belgium at the time (during his father’s employment in that country on government ser vice). The chief accomplishments of the conference were in two areas. One (to be considered presently) was dispute settlement. The other was the law of war. On this topic, two conventions were concluded. One extended the scope of the Geneva Convention of 1864 from land war to maritime war, by providing for immunity of hospital ships from attack. Far more prominent was the other convention: a codification of the laws of land warfare in

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general, which drew heavily on the Brussels projet of 1874. These Hague Rules, as they appropriately became known, are still in force. The subcommittee that did the drafting was presided over by Martens and included Renault, Lammasch, and Rolin-Jaequemyns fils among its members. One of the fiercest controversies that arose in the drafting of the Hague Rules concerned entitlement to combatant status, the most contested issue being the extent to which irregular forces, such as volunteer militia groups or self-formed guerrilla bands, could lawfully exercise the rights of war. Differences were papered over by a form of words proposed by Martens—and known thereafter as the “Martens Clause.” This was an express acknowledgment that the Hague Rules do not form a comprehensive code of law—and that, regarding matters not codified in the rules, civilians and de facto belligerents must nevertheless be understood to remain “under the protection and rule of the principles of the law of nations” in general. These “principles” were, in turn, stated to arise from customary practices and also from “the laws of humanity, and the dictates of the public conscience.” The First Hague Peace Conference agreed, in addition, to three specific restrictions on the conduct of war. One was a ban on the use of asphyxiating gases in projectiles. The second was a prohibition against the use of expanding bullets (“dum-dum bullets,” as they were commonly called, after the arsenal in India where they were most famously produced). The third was a five-year ban on the launching of projectiles and explosives from balloons. In 1907, the Second Hague Peace Conference was convened. This one was a much more inclusive affair. Forty-seven states were invited, with fortyfour actually attending. This time, all of the Latin American countries were present, except Costa Rica and Honduras (and even they appointed delegates, who unfortunately failed to arrive in time). The government of Korea sought to attend but was refused admission, on the ground that Korea was not an independent state (it was under Japanese dominance). As before, the “scientific delegates” included a number of prominent international lawyers. Several had attended the first conference, including Martens, Renault, Asser, Lammasch, and Rolin-Jaequemyns fils (this time representing his home country of Belgium). But a number of new figures were present, too. On the American delegation was James Brown Scott. Representing Britain was Cecil Hurst, who was legal adviser to the foreign office (and a future World Court judge). A young American named Ellery Stowell

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was not on his own country’s delegation, but he made himself useful on behalf of the newly created state of Panama. For Switzerland, Max Huber was present—a future World Court judge and director of the International Committee of the Red Cross. Heading the Cuban delegation was a young, but experienced, lawyer named Antonio Sanchez de Bustamante. He is surely without peer as a youthful prodigy in the field. He became a professor of international law at the University of Havana in 1884 at the ripe age of nineteen, by way of a competitive examination. Perhaps academic life was in the blood, since his father was a dean of the university. In all events, he remained on the Havana faculty for the rest of his life. In 1902, he became a senator in his newly independent country. He would later do long ser vice as a World Court judge. The conference’s most theatrical figure was the Brazilian lawyer Ruy Barbosa de Oliveira. He certainly had one of the more colorful backgrounds of the conferees. A reformist journalist and politician, he served as minister of justice and finance in the government that overthrew the Brazilian monarchy in 1889. He then became one of the drafters of the republican constitution of Brazil the following year. His time as finance minister was both short-lived and disastrous, marked by an unstable currency and speculative bubbles. After being accused of involvement in a naval revolt, he fled the country but returned later and regained his former prominence. As Brazil’s chief representative at The Hague, he impressed his fellow delegates by his multilingual eloquence, earning the nickname “the eagle of the Hague.” Most memorably, he became the spokesman for what would later be called the developing countries, in whose cause he delivered a memorable oration insisting on fi rm adherence to the principle of the equality of all states. “[S]overeignty,” he proclaimed, “is the prime and elemental right of constituted and independent states. Therefore sovereignty signifies equality. In theory, as in practice, sovereignty is absolute. It knows no grades.” So striking an impression did he make that, on his return to Brazil, he was given a hero’s welcome. Two years later, he ran for president, putting his eloquence to work in support of democracy and in strident opposition to military involvement in politics. The campaign was unsuccessful, but it confirmed his status as one of the most forceful personalities of his generation. In this second conference, the role of Martens was less dominant than before, largely because of health considerations. The most prominent legal figure

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was Renault. In the admiring words of James Brown Scott, he came to be “looked on as one set apart,” acting as “a trusted adviser, counselor and guide of the entire Conference.” Scott hailed him as “the incarnation of the spirit and purpose of the Conference.” As such, he transcended the parochial interests of his country. “He came to the Conference a Frenchman,” averred Scott; “he left it as a citizen of the world.” His stature received due recognition in the immediate aftermath of the gathering, in the form of the Nobel Peace Prize. Given the much larger and more varied attendance at this second conference, the principle of unanimity became strained to the breaking point. As in the previous gathering, there was no formal rule on the point. But it was generally accepted that a requirement of unanimity flowed automatically from the principle of the legal equality of states. In practice, though, the conference operated on a basis described as “quasi unanimity.” This was never very precisely defined. But the essence of it was that a substantial majority of states in favor of something would be (somehow) deemed to constitute or signify unanimity. One observer characterized this practice, with approval, as “a slightly veiled transition to the principle of majority rule” in multilateral treaty drafting. The bulk of the work of the second conference dealt with further elaboration of the laws of armed conflict. In fact, so dominant were questions of the conduct of war that some observers sourly commented that the gathering ought accurately to have been labeled as the “Hague War Conference.” Some slight alterations were made in the Hague Rules. The declaration barring the launching of projectiles from balloons, which had expired in 1904, was reinstated, this time until the gathering of an envisaged Third Hague Peace Conference. In addition, a dozen other conventions were drafted on various aspects of armed conflict. One concerned the issuing of declarations of war at the onset of hostilities. Two of the Hague Conventions dealt with the rights and duties of neutral powers—one in land war and the other in maritime war. The convention on maritime neutrality was a disappointment, in that it failed to resolve a number of issues relating to contraband, blockades, destruction of neutral ships at sea by belligerents, and unneutral ser vice. Other conventions dealt with more specific aspects of maritime warfare. One covered naval bombardment in wartime, requiring the giving of prior notice. Another contained several specific restrictions on capture at sea— such as the exemption from capture of mailships and of fishermen. Conspicuously, however, the convention did not contain a complete prohibition

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against the capture of private property at sea, as the majority of states wished. The opposition of the major maritime powers kept it from being adopted. Other conventions dealt with the status of enemy merchant ships at the outbreak of war, the conversion of merchant ships into warships, and the placing of mines at sea. Progress was made on some of the unfinished business shortly afterward, although only by abandoning the Hague Conference’s all-inclusive approach, in favor of a reversion to treaty making by major powers. This took the form of the London Naval Conference of 1908–9, to which only the ten leading maritime states were invited. As fully intended, the atmosphere was very different from that of the much larger gathering at The Hague. The delegations made an impressive effort to resolve their many differences through a series of compromises. It helped that the conference was under the able chairmanship of Renault. The result was the Declaration of London, which set out rules on contraband, blockades, captures of neutral ships, and a host of other issues that had defeated the delegates at the Second Hague Conference. In the event, however, the declaration never entered into force because domestic political pressure led the British government (the foremost naval power) to decline to ratify it.

Adjudication Lawmaking was not the only business of international lawyers. Adjudication was another important task. The greatest advances in this area were in the realm of arbitration. This phenomenon was hardly new on the world scene, since it had been a feature of both ancient Chinese and Greek state practice, as well as of the European Middle Ages. But it had largely fallen out of fashion in recent centuries. A major landmark in its revival was the work of the mixed-claims commissions established by the Jay Treaty of 1794. In the course of the first two-thirds or so of the nineteenth century, a number of arbitrations took place, dealing with an array of specific issues. The connection between arbitration and international law is not so close as might be initially supposed. The reason is that arbitral decisions are not necessarily made on the basis of law, as is the case (by definition) in true judicial resolution. Instead, the parties to the dispute determine the basis on

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which the decision will be reached. The parties also determine the selection of the arbitrators, so that arbitral panels are, in a manner of speaking, the servants of their creators rather than their masters. Several other factors stand in the way of developing international law by way of arbitration. One is that arbitral panels are assembled on an ad hoc basis for the resolution of a single dispute and then disbanded. This precludes the building up of a body of consistent case law. Since each panel is entirely independent of every other, rulings by one are not binding on others. This makes the emergence of inconsistent rulings possible. In addition, arbitrators are not necessarily lawyers (and many were not, especially in the early part of the century). And often the reasons given for the rulings were so sketchy as to be of little use for the development of international law. The position is somewhat different for mixed-claims commissions, such as the ones established by the Jay Treaty. In these cases, it is usual for the commission members to be experts in the law. Also, the fact that these commissions handle batches of cases, instead of single disputes, means that they can build up a corpus of case law (as the Jay Treaty commissions did). The most prominent of the mixed-claims commissions—and the most famous deployment of international law in the resolution of disputes—of the nineteenth century were established by the United States and Britain in the Treaty of Washington of May 1871. There were two of these. One concerned Britain’s legal responsibility (if any) arising from the fitting out of various Confederate warships in British ports during the recent American Civil War. The other dealt with allegations, by each country against the other, of injuries to nationals that occurred in the course of the Civil War. Most, but not all, of these were claims by Britain for injuries to its nationals, frequently at the hands of American blockading squadrons. The principal arbitration, on the neutrality claims, was held in Geneva in 1872. Unfortunately, it did not go smoothly. The British member was so emphatic in his disagreement with the panel’s finding on the inadequacy of Britain’s adherence to its duties as a neutral that he refused to put his signature to the ruling. The British government duly paid the award (of some $15.5 million). But it disagreed so strongly with the panel’s holding that it withdrew its support from the plan to invite the accession of other states to the Washington Rules, pursuant to which the arbitration had been conducted. The rules, accordingly, died a quiet death.

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Despite this less than auspicious model, states became increasingly willing, at least in principle, to submit their disputes to arbitration. In the final years of the nineteenth century and the early part of the twentieth, there was a mushrooming of bilateral arbitration treaties between states. By 1914, over three hundred are estimated to have been concluded. The United States alone entered into some twenty-two in the two-year period of 1908–9. It is small wonder, then, that Westlake could confidently assure his readers that “international arbitration is in the air.” It must be appreciated, though, that the air was somewhat less than pure because these treaties typically contained important caveats. In particular, three subject areas were widely excluded from the scope of the duty to arbitrate: questions relating to the independence of the states, issues affecting “vital interests” or honor (potentially quite a broad category of matters), and matters in which third parties had interests. Moreover, it was commonly stated in arbitration treaties that the key decision of whether a given matter fell into one of those excluded matters was a question for each state to determine on its own. In the light of these restrictions, it is not so surprising that the actual pace of arbitrations did not pick up as sharply as the number of agreements might have indicated. Nevertheless, it has been estimated that, in the period 1794–1900, some 177 arbitrations took place, with just over half of these concentrated in the period 1880–1900. If nothing else, these deliberations greatly enhanced the employment prospects of international lawyers, both as arbitrators and as counsel for the disputing parties. It has been observed that the ser vices of Martens and Renault were in especially high demand.

The Permanent Court of Arbitration One of the major achievements of the First Hague Peace Conference was the conclusion of the Convention on the Pacific Settlement of Disputes, largely drafted by Martens. This convention’s primary achievement was to provide for what is sometimes called the world’s first international court, entitled the Permanent Court of Arbitration (P.C.A.). The label “permanent” seems appropriate, as the institution continues to exist to the present day. The word “court” was less happily chosen, for two reasons. One is that the

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arrangement was really for arbitration, and not necessarily for judicial settlement. The other reason is that the P.C.A. was not—and still is not—a standing court with a continuous existence. Rather, it is a roster of names of persons who are prepared to act as arbitrators as and when they might be called on. But any given panel, once it has discharged its task, is disbanded, and its members melt back (so to speak) into the general roster, to await a future summons that might, or might not, come. Martens aptly described the so-called court as “but an idea which occasionally assumes shape and then disappears.” The P.C.A. is therefore best thought of as the world’s first permanent arrangement for the judicial or arbitral settlement of disputes. An important point of contention concerned the giving of reasons by arbitrators. It was generally accepted that, in judicial dispute resolution, reasons must be stated when judgments are given. This is seen as an inherent feature of the judicial function as such. But that was not so widely agreed regarding arbitration. Martens, for example, was strongly opposed to a general rule requiring arbitrators to give reasons. His rationale was that the unanimity of arbitrators was more important than the giving of reasons, and that setting out reasons could have the undesirable effect of eliciting dissenting opinions from arbitrators who might otherwise have quietly acquiesced. This position did not prevail in the drafting of the P.C.A. Convention at the First Hague Conference, but it indicates an important distinction between arbitration and judicial settlement. The Dispute Settlement Convention entered into force in 1900, and the P.C.A. roster soon became a kind of global Who’s Who of prominent international law academics. Business, however, was less than brisk. By the time the Second Hague Peace Conference convened in 1907, P.C.A. panels had decided only four cases.

Other Courts The establishment of the P.C.A. left a great deal to be desired in the eyes of those who hoped to see the emergence of a true world judicial body. This group included Martens. In the years prior to the Great War, three attempts were made to create standing international courts—all of them, however, without lasting success. Two of these took place at the Second Hague Peace Conference, and one shortly afterward.

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The first of the initiatives at the Second Hague Conference was for the creation of an international prize court, which would hear appeals from prize courts of belligerent states. One of the most contentious issues was how the judges were to be selected. After some considerable discussion, it was agreed that there were to be fi fteen judges, serving six-year terms. Eight of these were to be appointed by the eight major powers, with the other seven being selected according to a rota that was annexed to the convention. A state that was party to a dispute was guaranteed a right to have a judge of its choosing on the bench, by way of substitution for one of the judges on the rota. The justification for the privileged position of the eight major powers was that, as the world’s chief maritime states, they would be expected to be involved in by far the majority of cases. Thirty-three states signed the Prize Court Convention. But substantial opposition soon emerged. A principal legal foe of the court in the international legal community was T. E. Holland, the professor of international law at Oxford University. He objected to the authority that the court would have, in cases where a specific rule of law was lacking, to decide the matter on the basis of “general principles of law and equity.” Holland feared that this provision would enable the court to impose new, and unacceptable, restrictions on British naval practices. In the event, the opposition prevailed. The British parliament barred ratification of this convention (along with the Declaration of London). So the proposed court was stillborn. The other project at the Second Hague Peace Conference fared even less well. This was for the establishment of what was to be called the Court of Arbitral Justice, which would differ from the P.C.A. in two important ways. First, it would be designed specifically for the determination of disputes by application of international law. Second, it would have a permanent and continuing bench of judges, in the manner of national courts. The parties to a case would therefore have no right to determine the members of the bench—apart from a guarantee that the litigating parties would always have a right to appoint a judge. It was not envisaged that the court would have compulsory jurisdiction. It could hear only cases that parties to a dispute chose to submit to it. The major—and ultimately insurmountable—problem was an inability of the states to agree on the selection of the judges. Some delegations contended that each party to the convention should have the right to appoint a

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judge, with some procedure devised for allocating judges to individual cases. Others maintained that the number of judges should be small enough that most (or all) of them would sit on all cases, so as to enable the court’s case law to have a strong element of continuity. Small states were reluctant to agree to this, on the thesis that major powers would always have judges of their nationality on the bench (de facto if not de jure), leaving too little scope for the rest of the world. As a result of this disagreement, the draft convention was simply silent on the point. It was hoped that the vexed question could be resolved after the conference by negotiations between the various states. This did not prove successful, though, so this proposal also failed to bear fruit. The third plan for an international court did achieve a modicum of success. It was drawn up in 1907, but not at the Hague Conference. At a gathering in Washington, D.C., the U.S. government induced the five countries of Central America to conclude a series of treaties to bring peace to the region. One of the arrangements has already been noted—the adoption of the Tobar Doctrine on recognition of unconstitutional governments. In addition, one of the conventions provided for the establishment of a Central American Court of Justice. It even allowed cases to be brought before the court by private parties, as well as by states. The following year, the court began operations in Cartago, Costa Rica—the very first standing international tribunal in the history of the world. In its first year in operation, it adjudged Guatemala and El Salvador to be responsible for instigating a revolution in Honduras. The Central American Court did not, however, have either a long or a happy existence. A dispute that arose in 1914 brought it to an inglorious end. The contention concerned a treaty between the United States and Nicaragua on the construction of a transisthmian canal and naval base. The governments of Costa Rica and El Salvador objected that various rights of theirs would be infringed. After a judgment in favor of these claims in 1916–17, Nicaragua withdrew from membership of the court. The American government joined it in refusing to recognize the decision. This controversy brought the court’s career to an end, and it was officially dismantled in March 1918. The world therefore had to wait before it had a truly permanently existing international court. Some material progress was made, though, in the form of bricks and mortar, compliments of Andrew Carnegie. In 1907, during the

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progress of the Hague Conference, the cornerstone was laid for a Peace Palace, to house the P.C.A. Carnegie also financed the construction of the Central American Court of Justice building—which carries on, though now in humbler ser vice as part of the San Luis Gonzaga High School in Cartago. The Peace Palace was a more fortunate project. Completed in 1913, it still houses the P.C.A., along with the later-created World Court.

Enforcement—and Unrest “Rights without remedies are no rights at all,” runs a venerable American legal cliché. In the eyes of many, law is hardly worthy of the name if no enforcement mechanism is available. Austin certainly thought this, in placing the presence of a sanction at the center of his theory. It has been observed that the empirical wing of positivism similarly gave a high priority to the presence of sanctions against wrongdoers. The distinctive thing about international-law sanctions is that they were of a self-help character. There was no alternative, given the absence of a global sovereign or world police force. It was accordingly up to injured states to inflict negative consequences onto countries that had wronged them, as best they could. Sanctions measures could be peaceful, taking such forms as suspending the performance of a treaty obligation, downgrading or severing diplomatic relations, or instituting some kind of economic measure such as a trade boycott or ban on investment. But enforcement actions could assume more vigorous forms, too, such as a resort to “reeking tube and iron shard” (in the words of the British poet Rudyard Kipling). Enforcement measures involving armed force fell into the legal category known as measures short of war. These typically took the form of armed reprisals, such as blockades, or of punitive expeditions. It is an aspect of international law that has been curiously understudied, for several reasons. One is that enforcement action occurred sporadically, without forming any discernible pattern. Another reason for the neglect is that the political significance of these actions was often not very high. The wrongs, or alleged wrongs, that elicited armed responses were of varying kinds. In 1885, France took naval action against China, in the form of a blockade of Formosa, in response to alleged Chinese support for an

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anti-French insurgency in the Tonkin region of Vietnam. As had been the case since time immemorial, mistreatment of diplomats could provide the spark for armed action. The French conquest of Algeria, for example, was triggered by the “fly-whisk incident” of 1827, when an Algerian official allegedly struck a French official with the object in question. A similar incident took place between the United States and Nicaragua in 1854 (although not leading, in this case, to long-term annexation). After an American diplomat was assaulted in the course of a mob disturbance in the port of Greytown on the Caribbean coast, an American warship was dispatched. When a suitable apology was refused, the American commander proceeded to bombard the town, totally destroying it, albeit without any loss of life. The single most common cause of armed reprisals, however, was an allegation of injury of some kind to nationals of the enforcing state. A notable early example was American action against the “Barbary Pirate” state of Tripoli in 1801–5, in response to depredations against American nationals. Mistreatment of French nationals in Argentina led to a naval blockade of Buenos Aires by France in 1838–40. It has been noted that the “Opium War” in 1839–42 was sparked by alleged mistreatment by Chinese authorities of British nationals accused of crimes. The allegedly unlawful boarding of a British ship by Chinese authorities in 1856 led to a further round of hostilities, which culminated in the notorious sacking of the Summer Palace of China four years later by British forces. In 1863, the United States and France took action against the rogue Japanese principality of Choshu, when it began a policy of firing on foreign ships passing through the Strait of Shimonoseki. The death of five American sailors led to an armed response, resulting in the sinking of two Choshu ships. The French formed a landing party, which burned a village and destroyed a gun battery. It has been observed that the American expedition against Korea in 1871 was in response to the killing of some American seamen some years earlier. One of the most famous examples of armed force deployed on behalf of injured nationals involved Great Britain and Greece in 1850. A British subject named Don Pacifico was apparently plundered by a mob in Greece— with Greece then accused by Britain of being remiss in providing appropriate protection. When the Greek government declined to pay compensation, the British government dispatched a naval squadron to blockade Greek ports and compel Greece to come to terms. This act sparked considerable

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political controversy in Britain, but it had the intended effect. The Greek government agreed to arbitration, to quantify the losses suffered by Don Pacifico. The arbitral commission, however, valued the losses at only £150—as against the original claim of over £21,000. Less famous, but perhaps more entertaining, was the “Pastry War” between France and Mexico in 1838. After a French pastry cook claimed that his shop had been looted by Mexican soldiers, his government demanded an indemnification of 600,000 pesos. When this was not forthcoming, a French fleet blockaded the Caribbean ports of Mexico, bombarded a fort, and even briefly occupied the city of Veracruz. Far from giving in, the Mexican government escalated the crisis by declaring war. The dispute was eventually resolved the following year, with a peace treaty that provided for the soughtafter compensation. One of the largest-scale European interventions, by Britain in Egypt in 1882, was similarly justified by protection of nationals. After a nationalist government took power in Egypt, there was widespread antiforeigner rioting, with some fift y deaths. The British responded initially with a daylong naval bombardment of Alexandria, followed up by a full-scale military invasion that toppled the unfriendly government. The longer-term effect was to turn Egypt into a de facto protectorate of Britain. Debt defaults by developing countries were frequent causes of forcible action by the more powerful states. This was the case in the single most important of all of the incidents short of war for the period, from the legal standpoint: the joint naval action taken against Venezuela in 1902–3 by Britain, Germany, and Italy. This succeeded in persuading the Venezuelan government to agree to have the various claims against it quantified by a series of mixed-claims commissions. (The commission dealing with the U.S. claims disallowed 99.5 percent of them.) An unseemly squabble then ensued among the creditor states as to whether the three blockading powers were entitled to receive preference in payment. A P.C.A. arbitral panel (which included Martens and Lammasch as members) held, controversially, that they were. Armed interventions short of war sometimes occurred in slightly different contexts, too, such as the rescue of nationals. A classic instance of this occurred in 1868, when several British nationals, including a consular official, were held captive at the court of Emperor Theodore of Ethiopia. A British force went to their rescue—in the process, destroying Theodore’s capital

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and killing the emperor himself. The most famous of these rescue missions was the one mounted in 1900 during the Boxer Rebellion in China, for the benefit of 3,200 people besieged in the foreign legation quarter of Peking. (Some 76 of them died in the siege, with about 180 others being wounded.) An unprecedented alliance of European powers, joined by the United States and Japan, formed a multinational force some 18,000 strong to rescue the legation residents. The result was the defeat of the Boxer movement and the restoration of effective power to the Chinese imperial dynasty—plus the imposition of a $337 million indemnity onto China.

Backlash It could not escape the attention of even the most casual observer that international law enforcement by way of armed reprisals was a prerogative exclusively of major military powers, with poor and weak states almost invariably on the receiving end. It was sometimes ominously difficult to distinguish between bona fide law enforcement and imperial swagger. London theater audiences were given a vivid illustration of this in 1899, in George Bernard Shaw’s play Captain Brassbound’s Conversion, a satirical portrayal of a rescue by British armed forces of captive Europeans in Africa. In a more sober vein, international lawyers in Western countries tended to insist that the underlying legal principles were sound: that international law imposed certain standards of conduct onto countries—and that those standards could not be violated with impunity. Former American Secretary of State Root, for example, stated in 1910, in a matter-of-fact tone, that it is “an international custom” for powerful countries to intervene to protect their nationals abroad, even though this necessarily involves “an impeachment of the effective sovereignty” of the host country. Root did caution that this customary right should not be lightly exercised. It should only be resorted to if there are “unquestionable facts which leave no practical doubt of the incapacity of the government of the country to perform its international duty of protection.” But in the final analysis, he insisted, the right to take armed action on behalf of nationals abroad cannot be denied. The question of entitlement to self-help remedies against misconduct was closely allied to the issue—also highly controversial—of what substantive standard of conduct foreigners were entitled to expect from host countries.

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It has been observed that liberals tended to insist on the existence of an international standard of conduct. Positivist lawyers—with Calvo as their most prominent champion—opposed this, in favor of a sovereign right on the part of each state to set its own standards within its territory. Foreign visitors have only a right not to be discriminated against. In 1902, it was proposed that this Calvo Doctrine be supplemented by a new, and more narrowly directed, proposition. The initiative came from Luis María Drago, the foreign minister of Argentina. In response to the blockade instituted against Venezuela that year, Drago asserted that the use of armed force to collect state debts was contrary to the principles of American (i.e., Western Hemisphere) international law. He afterward expanded this into a “Drago Doctrine,” which asserted that coercive enforcement measures can never be taken against states in cases of sovereign indebtedness. According to Drago, this merely reflects a key inherent attribute of state sovereignty: immunity from measures of execution (though not necessarily of adjudication). The nearest that the Drago Doctrine came to realization during this period was the adoption of the Porter Convention at the Second Hague Peace Conference (named for the American diplomat, Horace Porter, who was its chief advocate). It was a gesture in the direction of the Drago Doctrine. It prohibited the use of armed force in cases of government debt owed to private parties—but not absolutely, as Drago had advocated. Coercion could still be used if the debtor state either refused arbitration in the matter or failed to carry an arbitral decision into effect. Because of these key provisos, the Porter Convention was a grave disappointment to Drago (who was a delegate to the conference) and to his supporters. Of Latin American states, only Mexico became a party to the Porter Convention. Nevertheless, the Porter Convention has—and merits—a modest place in the history of international law, as the first multilateral treaty to place a legal limitation onto the resort to armed force.

Fin de Siècle All in all, international lawyers could—and did—take pride in having done much to make the world more orderly in the course of the nineteenth century. They even made it safer, to the extent that arbitration reduced the pos-

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sibility of armed conflict between states. With some considerable justification, there was optimism in the air. International law was lauded by Woolsey as “right and humanity on a great scale.” Sometimes it seemed that optimism was a de facto prerequisite for membership in the international legal community. Oppenheim, for example, asserted that a person “is not properly fit to work at the science of international law” if he lacks “a deep-rooted faith in the progress of the nations towards peace and civilization.” There was a discernible trace of the contemporary ethos of “muscular Christianity” in Oppenheim’s praise of international law as an “all-powerful force of the good which pushes mankind forward.” There were inevitably those—even within the international legal profession—who lamented that too little had been done. One of these was a German lawyer named Walther Schücking, who was a professor at the University of Marburg. As a pacifist, a political liberal, and an overt sympathizer with natural law, he was far from the mainstream of his profession. He was even something of a figure of ridicule. Even he, though, was a resolute optimist, seeing the Hague conferences as the first steps in a broad movement to eventual world federation. At the same time, he regretted the timidity of positivist lawyers, whose horizons he thought to be too narrow for the challenges—and opportunities—that lay ahead. What lay ahead was cataclysmic war, in 1914–18. International lawyers did not start the Great War, of course. But their advice was indispensable to the belligerent governments as Europe was transformed, almost overnight, from a “house of peace” into a “house of war.” Erich Kaufmann, consistently with his robust views on the value of war, did ser vice for Germany as a soldier in the ranks. At the other end of the political and military scale, Heinrich Lammasch, after being in danger of arrest early in the conflict for pacifist tendencies, became minister-president of Austria at the end of the conflict. In that grand capacity, he had the distasteful task of advising Emperor Charles I to abdicate his throne (Lammasch being a strong monarchist as well as a pacifist). The wartime ser vice of most international lawyers lay between these two extremes—advising governments and armed forces, exposing the illegal ways of dastardly enemies, and so forth. The role of international lawyers in the various wars of history is another of the many subjects that still awaits a detailed treatment. Our attention will turn to a postwar world that faced a largely new generation of international lawyers.

IV Between Yesterday and Tomorrow (1914– )

International law is still a very rudimentary system, with vast barren stretches between small cultivated areas. —Wolfgang Friedmann

 In 1933, the English author and public intellectual H. G. Wells penned a futurological novel—actually more of a political tract—entitled The Shape of Things to Come. It provided a vision of what the international scene would be like in the late twentieth and early twenty-first centuries. The world was envisaged to be united into what was called, somewhat blandly, the Modern State, inaugurated in 1965 at a conference in Basra, Iraq. The impetus for the founding was a cataclysmic war that was predicted to begin in Europe in 1940 and to be sparked by a conflict between Poland and Germany. The destruction wrought by that struggle would be the inducement for global unification. It did not work out quite like that. The cataclysm was impressively foreseen, even to the precipitating clash and a near-perfect guess as to the year. But there was little evidence of the world state. Through all the vicissitudes of the twentieth century, the principle of the sovereign equality of states stubbornly survived. World wars, nuclear weapons, and genocide were unable to dislodge it. Sharp-quilled lawyers brought their own specialized doctrinal weapons to bear on it. But it survived, and even flourished. The League of Nations and the later United Nations (UN), far from attacking state sovereignty, accorded it the highest degree of respect. In short, the period from about 1910 to the present was a time of much continuity with the past in the realm of international law. Intellectually, the century was less heroic than its predecessor. There was less in the way of blazing new trails—though much in the way of building on existing ideas. In terms of action on the ground, however, the picture was radically different. The century would witness a bewildering host of initiatives in all areas of the subject. One of the most visible signs of this vibrancy was the establishment, at last, of a standing World Court, to adjudicate claims between states in much the manner of ordinary courts hearing disputes between private parties. After the Second World War, there was even the specter of international criminal tribunals, for the prosecution and punishment of persons whose misdeeds threatened the world at large rather than just their local neighborhoods.

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The states of the world became a drastically more diverse lot than had been the case in the age of the Hague Peace Conferences. The collapse of four great multinational empires in 1917–18 brought a swarm of new states into existence—with an array of legal challenges to accompany them. These were hugely reinforced after World War II when decolonization brought an even more dizzying enlargement in the number (and variety) of sovereign states, ranging in size from India and Indonesia at one end of the scale to Nauru and Dominica at the other. And all were sovereign and equal—or at least vociferously insisted that they were. Growth did not stop there. A further influx of new states accompanied the breakup of the Soviet Union in the 1990s, at the conclusion of the Cold War. In some important respects, these changes reinforced old ways of thinking rather than challenging them. Socialist countries, along with newly independent ex-colonies, proved to be devoted to mainstream positivist ways in  international law. In addition, though, two of the three heterodoxical approaches from the nineteenth century—liberalism and solidarism—came fully into their own in the modern era. In the case of liberalism, this was most obvious in the advance of human rights to a prominent position in international law, even if actual observance of this law was less than wholehearted on the part of many governments. Solidarism was not so much a unified school of thought as a general seedbed from which a diverse bouquet of exotic blossoms emerged. It cannot be said that these developments brought universal pleasure. Many people regarded them with misgivings—some with better reasons than others. German and Japanese political and military leaders who were responsible for the ghastly atrocities of the Second World War, for example, cannot have been pleased to see important advances in the enforceability of international law. Nor could the leaders of North Korea in 1950–53 or Iraq in 1990– 91. Nor were they alone. As international law grew in strength, it intruded into more and more areas that had been the exclusive preserve of states— and it correspondingly roused increasing misgivings and opposition. International law has never had an easy time—and it certainly did not in the century after 1914.

chapter nine

Dreams Born and Shattered

n  , the world was treated to a vivid demonstration of two contrasting ways of enforcing international law. They could be called the old way and the new. In both cases, the state of Germany played an unwilling starring role, as an accused lawbreaker, with the Treaty of Versailles providing the relevant law in both affairs. In both, France stood in the accusatory role (with company). There were some differences, too. One of the cases is famous, and the other virtually unknown (at least to nonlawyers). In one of them, the legal element was extremely obvious, and in the other one, much less so. The famous incident was the occupation of the Ruhr Valley by the armed forces of France and Belgium. To the naked eye, this did not look like a legal proceeding, but it was. It was a reprisal action—a measure short of war—in response to an alleged legal wrong committed by Germany. As such, it was a stellar illustration of traditional law enforcement by way of self-help— although the action was exceptional in being taken against a major power. The alleged wrong was a default in reparations payments. The spectacular consequences are well remembered. A German passive-resistance campaign began, which included a resort to printing huge amounts of paper currency— leading to one of history’s most notorious episodes of runaway inflation, estimated to have peaked at a rate of about 3.25 million percent per month. Less prominent in the public eye, by a large margin, was a debate among international lawyers as to the lawfulness of the French and Belgian action. It was argued by some that a reprisal against Germany for a violation of the Versailles Treaty could be taken only by all of the treaty parties collectively, or at least by all of the principal Allied powers, and not by two of them alone and self-selected.

I

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The other case was considerably less dramatic—but arguably of more lasting significance. It took place not in the streets and towns of the Ruhr, but in the marbled hallways and paneled courtroom of the Peace Palace in The Hague. This was the new-fangled way of enforcing international law. At the newly established World Court, Germany was being accused of violating its obligations under the Versailles Treaty by refusing passage through the Kiel Canal to a ship named the Wimbledon. At the time, the Wimbledon was carry ing war supplies to Poland, for use in that country’s ongoing conflict with Russia. On this occasion, there was no armed response by the offended Allied powers. Instead, they brought a lawsuit against Germany—the very first contentious case to appear on the World Court’s docket. In August 1923, Germany was held liable and assessed damages to France of some 140,000 francs (French nationals having been the charterers of the ship). In certain respects, it is fit and proper that the Wimbledon case has made so little impression on historians or general readers. Legal processes work more smoothly when they are kept well away from the shrill cries of partisans and the frenzied indignations of a vengeful press and outraged public. If all disputes could be resolved in the hushed calm of courtrooms rather than the swirling world of political cut-and-thrust, then civilization could be said to have taken a giant and noble forward stride. The post–World War I era was a time when the world dared to dream that such a giant step could actually be taken—and was even in the very process of being taken. Even amid the shock and disillusionment of the wartime years, there had been glimmerings of hope from international lawyers—a band of famously hardened optimists. The German lawyer Franz von Liszt expressed cautious confidence that the end of the conflict would bring not merely an armistice, but “a lasting peace,” in which a “new international law” would offer stronger safeguards to peace than had previously been the case. To some extent, this optimism was borne out. Images of the interwar period have it as a time of failure, vindictiveness, disillusion, and Depression. These features were certainly not lacking. From the standpoint of international law, however, it was an era of hope, innovation, creativity—and sharp controversy. It was an immensely rich period, both in practice and in doctrine, animated by a conscious awareness of new ground being broken, new structures built, and new territory explored. International law and its prac-

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titioners may not have prevented a Second World War from erupting. But they made many other—often little noticed—advances.

Peace and Punishment The Paris Peace Conference of 1919 was a star-studded affair by any standard—a worthy successor to the great peace conferences of the past, such as Westphalia in 1648 or Vienna in 1815. It resembled the Congress of Vienna in its ambitious aim to effect a nearly continent-wide redrawing of political boundaries and to put in place a settlement that would be longlasting. The new gathering was greatly different from its predecessor, though, in one key respect: that legal issues played a far greater role now than they did a century earlier. It was fitting, then, that a considerable number of eminent international lawyers were present. Some were veterans of one or both of the Hague Peace Conferences. James Brown Scott, for example, was on the American delegation. Cecil Hurst was present for Britain, as he was still the legal adviser to the foreign office. Bustamante represented Cuba. And Édouard Rolin-Jaequemyns was secretary-general of the Belgian contingent. But there were signs, too, of a generational change within the profession, as many of the leading prewar figures were no longer on the scene. Several had died shortly before the war, including Martens, Westlake, and Fiore. Others died during the conflict or immediately afterward—including Renault, Oppenheim, Lammasch, Lasson, Lawrence, and Liszt. A number of the most prominent political figures at the conference had experience of some kind in international law. The most notable of these, by some margin, was a former professor of political science and public law (including international law) named Woodrow Wilson, now applying his learning to practical affairs as president of the United States. In addition, several of the foreign ministers had significant international-law backgrounds. Robert Lansing, Wilson’s secretary of state, was one. As a law practitioner, he had had much experience with international arbitrations. Another was the foreign minister of Greece, Nicolas Politis. A former student of Renault’s, he became a law teacher in France but was then plucked from this obscure life by Prime Minister Eleuthérios Venizelos of Greece in 1913 to serve in the

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Greek foreign ministry. By 1916, he had been made foreign minister. He would be a major figure in international law and diplomacy of the interwar period. The foreign minister of Uruguay, Juan Antonio Buero, was another former law professor, as well as a future legal adviser to the League of Nations secretariat. (Buero also helped to found the World Cup tournament in soccer, the first of which took place in his country in 1930.) A number of other international lawyers were present at the conference in more modest capacities. Advising the American delegation was Manley O. Hudson, a professor at Harvard Law School (and future World Court judge). David Hunter Miller was another legal adviser to the American delegation. He would leave a valuable account of the drafting of the League of Nations Covenant. Anzilotti was present on the Italian team. A member of the French delegation was La Pradelle, a professor at the University of Paris. Among the German delegates—a decidedly low-profi le group—was Walther Schücking, who also helped to draft the constitution of the Weimar Republic and would later sit on the World Court. On the Belgian delegation was Charles de Visscher, a law professor at the University of Ghent and future World Court judge. Representing China was a young man who had been educated in the United States, named Wellington Koo, of whom much would be heard later. The legal adviser to the Polish delegation was Bohdan Winiarski, another future World Court judge. The Ecuadorean delegation boasted Carlos Tobar, of Tobar Doctrine fame. The Brazilian delegation had a most interesting conference. The obvious choice to lead it was Ruy Barbosa, who had been an outspoken champion of the Allied cause during the war, but he declined to serve. His place was accordingly taken by Epitácio da Silva Pessôa, a former justice minister, attorney general, and Supreme Federal Tribunal justice. During the Paris Conference, a snap presidential election was called, in which Barbosa emerged as the leading candidate. In a desperate effort to keep that mercurial and independentminded figure out of the presidency, his many foes rallied around a single opposition figure: Pessôa, who duly won the election while serving in Paris. Pessôa would later become a judge on the World Court (in succession, ironically, to Barbosa). Altogether, ten future World Court judges were present at the Paris Conference. That was just as well, for there was no shortage of legal work to be done. In contrast to the Hague Conferences, which were chiefly concerned

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with lawmaking and dispute settlement, the chief legal task now was punishment for wrongdoing. To advise on issues in this area, the Allied governments established a body called the Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties. It consisted of fifteen persons, including Scott, Lansing, Rolin-Jaequemyns, and Politis. Its general secretary was La Pradelle. The Commission reached three principal conclusions. The first was that the blame for the outbreak of the war rested primarily on Germany and Austria-Hungary, and secondarily on Bulgaria and Turkey. The second major conclusion concerned the question of personal responsibility of the German leadership for causing the war. The Commission recommended against placing high-level figures on trial, on the ground that the planning of aggressive war was not actually a war crime. A war crime in the legal sense, the Commission concluded, is a violation of the rules on the conduct of hostilities after a war was under way. It went on to state, however, that penal sanctions against political leaders who resorted to aggressive war were “desirable.” The Commission’s third conclusion was that enemy nationals accused of war crimes properly speaking should be tried by panels established by the Allied powers. Vigorous objections to this plan were voiced by Lansing and Scott, who contended that the trial of war criminals could be undertaken only by the defendants’ own state, not by the opposing victorious side. The Allied governments accepted the Commission’s findings. The responsibility of Germany as a state for the conflict became the famous “war guilt” clause of the Treaty of Versailles. It was an implicit finding that the war had not simply been a clash between rival interests—in the manner of the positivist view of war—but instead had been, in some sense, an illegal act of aggression on the part of the German state. As in the case of any illegal act, the consequence was a duty on the part of the culpable party to compensate those who were injured. There was certainly no shortage of these, after four years of carnage. The task of quantifying the damages (or “reparation,” in technical legal terminology) was assigned to a commission, which later settled on the famous figure of 132 billion gold marks (about $33 billion). As for the personal liability of individuals for illegal acts, provision was made (as the Commission recommended) for war crimes trials by the victorious powers. For the German political leadership, a somewhat different fate

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was planned, since the Allied governments accepted the conclusion that the planning of aggressive war was not a criminal offense in international law. It was decided, though, that a “special tribunal” should be convened to try exKaiser (as he now was) William II for what was described as “a supreme offence against international morality and the sanctity of treaties.” (By “sanctity of treaties” was chiefly meant the violation of the neutrality of Belgium and Luxembourg.) The Council of the Allied Powers explained to the German delegation that the envisaged proceeding “has not a judicial character” and that William was “arraigned as a matter of high international policy.” In fact, this whole exercise was somewhat theoretical, since the ex-kaiser had fled to the Netherlands and been granted asylum. Requests to the Dutch government for his extradition were rejected, and he remained in that country until his death in 1941. There was some special business at hand concerning Turkey, stemming from the massive deaths of Armenians at the hands of Turkish authorities during the war. In May 1915, the Allied powers had issued a joint declaration, condemning Turkey for “crimes against humanity and civilization”—the first appearance of that forbidding turn of phrase—and explicitly warning that agents of the Turkish government would be held personally responsible. In the Treaty of Sèvres (the peace treaty with Turkey), that promise was fulfilled by requiring the Turkish government to identify the persons responsible for the massacres and to deliver them for trial by an international tribunal. In the event, however, the Treaty of Sèvres never entered into force. The Turkish government did arrest five persons for roles in the Armenian atrocities, two of whom were convicted in its own courts for actions “against humanity and civilization.” But the Ottoman government, fearing unrest if trials continued, then halted further proceedings. By the time that peace was finally made with Turkey, in 1923, that country’s bargaining position had improved, so the Treaty of Lausanne made no provision for trials for the Armenian massacres, or for war crimes trials of any kind. Regarding Germans accused of war crimes, the provision for trials by the Allied powers was quietly set aside. As a concession, Germany was allowed to undertake trials itself (as Lansing and Scott had favored). The trials, which got under way in Leipzig in 1921, did not go smoothly. Public opinion in Germany was strongly against them. Opinion in the Allied states became

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inflamed after the handing down of light sentences to persons convicted. As a result of dissatisfaction with the Leipzig process, France and Belgium reactivated plans for trials before their national tribunals. For this purpose, they proceeded to arrest accused Germans who happened to be located in zones that were occupied by their forces. By December 1924, over twelve hundred Germans had been convicted by French courts-martial. The Belgians tried about eighty cases. The Leipzig process nevertheless continued at least a vestigial existence until it was formally abandoned by the Nazi government in 1933.

An Age of Reform In the aftermath of the Great War, international lawyers perhaps had more reason than most to brood morosely over their share of responsibility for the tragedy. One of the gloomier ones was Charles Fenwick, an American professor of political science at Bryn Mawr College. His principal target was the technocratic, apolitical outlook of mainstream positivism, which had gone too far in simply accepting the world as it was and done too little to make it better. When we read the books of Hall and of Westlake, of Bonfils and Rivier, of de Louter, von Liszt, or any of the other outstanding treatises, even that of Oppenheim, we are unable to comprehend how they could have failed so completely to foresee the future and call for a constructive development of the law. The conception of a “positive” approach to the law laid a heavy hand upon international lawyers. There was still the possibility, though, of making amends in the future—and there was a palpable determination on the part of the many to do just that. During the interwar period, there was an intense flurry of activity across a broad range of fronts. Some of the innovations are relatively well known and can therefore be largely (if regrettably) omitted from the present account. The League of Nations is foremost here. It was designed as a political rather than a judicial body—as a mechanism for aligning state policies in such a manner as to minimize the chances of outbreak of war. It included a collective

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security component, in which the member states promised to aid one another against aggressors. Also included was a provision for applying sanctions (primarily economic) against member states that went to war in violation of the League’s in-house rules for peaceful settlement. Two lesser-known elements of the League system should be pointed out, as being relevant to international law. Both concerned treaties. One was the requirement that all treaties concluded by League member states be registered with the League secretariat, which would then publish them for perusal by the world at large. Any treaty that was not registered as required would not be legally binding. As a result, the League of Nations Treaty Series became a kind of primitive “online” moving image of the treaty practices of the League members. If nothing else, it is a gold mine for researchers. The other provision was a somewhat vague one: Article 19 of the Covenant, which empowered the League Assembly to “advise the reconsideration” of past treaties that might be obsolete or pose a threat to world peace. Some harbored great hopes for this provision—that it could become the basis on which the League, in the manner of a true world legislature, could step in to rectify past cases of injustice in bilateral relations between states, such as unjust peace settlements in the aftermath of wars. These hopes went unrealized, although several attempts were made to invoke Article 19. In the first year of the League’s operation, the government of Bolivia attempted to rectify a prior peace treaty with Chile (dating from 1904) that deprived it of access to the sea. In 1925, the Chinese government attempted to use the provision to have extraterritoriality provisions with Western powers abrogated. These attempts, however, produced no results. So the provision proved to be of no practical value. It may be of interest to note, if only in passing, two interesting proposals that, in the event, did not find their way into the League Covenant: on religious freedom and on racial equality. Wilson (the son of a clergyman) was anxious to include a provision on nondiscrimination on the ground of religion. Problems arose, though, when the Japanese delegation sought to amend Wilson’s proposal, with a provision that would commit League member states to grant “equal and just treatment” to “alien nationals” of other member states, without distinction “on account of their race or nationality.” Robert Cecil, the British delegate, objected that the provision “raised extremely serious problems within the British Empire,” with the result that both the Wilson and the Japanese proposals were withdrawn.

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The Japanese then attempted, as an alternative, to amend the preamble to the League Covenant to include a general “endorsement of the principle of equality of nations and just treatment of their nationals.” This idea attracted wide support—indeed, there was outright unanimity for the principle of “equality of nations,” since that was at the very heart of international law. But the “just treatment” component led Cecil to object once again. The provision, he explained, would have implications for “the question of White Australia.” Some countries, as he delicately put it, regarded questions of permitting Eastern immigration as being “impossible to discuss.” Despite this opposition, the racial-equality proposal attracted a majority of votes in its favor. But it was kept out of the covenant when Wilson, chairing the relevant session, ruled that unanimity was required. At the plenary of the Peace Conference, the Japanese delegation expressed “poignant regret” at the failure of its initiative.

A World Court at Last Of more direct significance for international law than the League itself was the establishment, at last, of a true World Court—that is, of a standing tribunal, in permanent existence, with a continuing panel of judges and an ever-growing body of case law. The creation of such a court was not a foregone conclusion. President Wilson’s original draft of the League Covenant did not include any provision for a court. The final draft, however, did— though in such a manner as to make it clear that the Court would not have mandatory jurisdiction over League member states. The actual establishment of the Court—known officially (if a trifle optimistically) as the Permanent Court of International Justice (P.C.I.J.)—occurred by way of adoption of a separate treaty (or statute). A draft statute was produced in 1920 by an Advisory Committee of Jurists and then approved (with some changes) by the League Assembly and Council and put out for ratification by states of the world generally. Membership in the Court was not confined to League member states. The Court consisted of eleven judges and four deputy (or substitute) judges, serving nine-year terms of office, renewable any number of times. (In 1929, the bench would be raised to fifteen by, in effect, promoting the deputies to full judges.) The judges would sit in a purely personal capacity. That is, they would not be delegates of their states of nationality but instead

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would exercise their own independent judgment of the law and facts in cases before them. It was fortunate that a solution was ready to hand for the problem that had thwarted the proposed Court of Arbitral Justice prior to the war: the method of selection of the judges. The institutions of the League were given the task. Election to the Court required a majority vote of both of the League’s principal bodies—the assembly (comprising the entire League membership) and the council (where there was disproportionate weighting of the major powers). The first elections, held in 1921, went smoothly, and the Court held its inaugural public sitting in February 1922. It was located in the Peace Palace in The Hague, alongside the Permanent Court of Arbitration, which continued (and continues) to function. The Court was given jurisdiction only over states. Individuals would have no standing to bring actions (as they did before the Central American Court of Justice and would have had in the International Prize Court if that body had come into existence). Nor could international organizations such as the International Committee of the Red Cross or the League of Nations itself either bring or defend claims. The Committee of Jurists had proposed that the Court have mandatory jurisdiction over states that were parties to the statute, but the League council decided otherwise, on the ground that it was clear from the text of the League Covenant that the Court would not have mandatory jurisdiction. A state could therefore be sued in the Court only if it so consented. The council did, however, make a gesture in the direction of compulsory jurisdiction. This was in the form of a provision in the Court’s statute allowing states, purely at their own unilateral option, to effect a sort of self-imposed compulsory jurisdiction. Specifically, a state could issue a declaration that it would permit cases to be brought against it by any other state issuing a similar declaration. The effect, then, would be that, within the group of states making such a declaration, the Court would have compulsory jurisdiction over all disputes, with no need for ad hoc consent in each individual case. The provision of the Court’s statute setting out this arrangement became known, somewhat confusingly, as the “Optional Clause”—referring to the fact that it was optional for states to issue a declaration accepting the principle of compulsory jurisdiction. Provision was carefully made to ensure that, whenever two states litigated, there should be a judge of each nationality on the bench. If, in a given case,

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the Court contained a judge from one state but not the other, then that other state would be allowed to add a judge of its own choosing to the bench of regular judges, though only for the one case. This additional figure was known as a judge ad hoc. If neither litigating state had a judge of its nationality on the bench, then both would be allowed to appoint judges ad hoc. (This judge ad hoc did not have to be a national of the appointing state, although that was commonly the case.) One of the most innovative features of this World Court was a provision for the rendering of advisory opinions. These were pronouncements that the Court would give to organs of the League on request, to enable them to deal with difficult legal questions. The organs could, of course, form their own legal positions and proceed on that basis. But if they wanted a truly authoritative judicial statement of what the law was, they could submit the issue to the World Court for resolution. In such a proceeding, there would be no states litigating.

The World Court in Action British foreign office legal adviser Cecil Hurst, surveying the list of the first judges on the World Court, worried that “there are far too many professors and legal advisers” on the bench “and too few judges.” Indeed, only three of the eleven had prior judicial experience. Among the academics were Anzilotti from Italy, John Bassett Moore from the United States, and Bustamante from Cuba. Among the foreign office legal advisers was the Swiss member, Max Huber (he was also a former academic). Ruy Barbosa— prodigiously learned but no academic—was elected to the Court, but never took his seat due to illness (although his bronze bust graces the Peace Palace, in an eerie silence that is deeply foreign to the fiery orator.) Moore’s election was something of a surprise—not least to himself. For one thing, the United States was neither a member of the League nor a party to the Court’s statute. Moore was unenthusiastic about the League and consented to go onto the bench only because he approved of the peaceful settlement of disputes by judicial tribunals. Later members of the Court included a former head of state: Pessôa of Brazil, who, after finishing his term as president, was elected in 1923 to replace Barbosa (his presidential election rival from 1919). Two former American

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secretaries of state served as judges: Charles Evans Hughes (who stepped down to become chief justice of the American Supreme Court) and Frank Kellogg. Other prominent judges included Hurst from the British foreign office, Manley Hudson of Harvard Law School, Rolin-Jaequemyns and Charles de Visscher (both from Belgium), and Schücking, who became the first (and only) German judge on the Court in 1930. Three of the judges served throughout the Court’s existence: Anzilotti, Bustamante, and Rafael Altamira from Spain. There was, understandably, some curiosity as to how many states would issue declarations under the Optional Clause accepting the compulsory jurisdiction of the Court. The first to do so was Sweden—though, out of caution, only for a five-year period. By September 1921, eleven other states had made declarations, with five of these following the Swedish lead of limiting their declarations to five-year durations. In 1928, the League Assembly launched an effort to increase the use of the Optional Clause, with some success. By 1932, some twenty-six states had issued declarations. On only one occasion was an Optional Clause declaration withdrawn: by Paraguay in 1938. Six states promptly objected, contending that Optional Clause declarations, once issued, could not be withdrawn. The issue, however, was not resolved. Over the period of its operation (1922–40), the Court handed down twenty-five judgments on the merits of contentious cases, plus twenty-seven advisory opinions. The cases were of a somewhat miscellaneous character. The very first ones, decided in 1922, were three advisory opinions requested by the International Labor Organization, for interpretations of labor treaties. The ILO requested two further opinions on later occasions. Several cases arose from the postwar treaties. One of them was the Wimbledon, as noted. Several others arose out of the Treaty of Lausanne and the associated population exchange between Greece and Turkey. In addition, questions of relations between Poland and the Free City of Danzig reached the Court no fewer than six times. The contribution of the Court’s case law to the development of substantive international law was perhaps less than might have been expected. This was because most of the cases brought concerned alleged violations of specific treaty provisions, rather than of general principles of law. Only on one occasion was a high-profile political crisis brought to the Court. This concerned a proposed arrangement, in 1931, by Germany and

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Austria to coordinate their customs policies. The plan was loudly claimed to be a violation on Austria’s part of a treaty commitment of 1922 not to “alienate its independence.”  As it happened, the two governments decided, for various political reasons, not to proceed with the initiative. But the advisory opinion was issued nonetheless, in which a sharply divided Court ruled that the plan did constitute a breach of the 1922 treaty. The German and Austrian governments nonetheless touted the closeness of the vote as a moral victory. And in some quarters, the Court lost prestige, on the belief that the judges had voted largely on political, rather than legal, grounds.

Mixed-claims Commissions The World Court did not have anything like a monopoly on international litigation during the period. The interwar era was also something of a golden age for mixed-claims commissions and arbitrations. The peace treaties with the defeated Central powers made provision for a class of claims to be adjudicated by mixed-claims tribunals. These were claims by Allied nationals for losses flowing from sequestration measures and similar actions by the defeated powers at the outset of the conflict. This primarily affected Allied nationals who were resident in those states or who had investments there. More important was the mixed-claims commission agreed between the United States and Germany in 1922. This was more wide-ranging in scope than the other ones because it was designed to deal with all losses suffered by American civilians—thereby becoming a substitute for the reparations arrangement in the Versailles Treaty. Among the more prominent claims heard by this tribunal were those arising out of Germany’s sinking of the passenger liner Lusitania in 1915. But it decided over twenty thousand other claims as well. Over seven thousand awards were made by this panel, totaling over $181 million. In mixed-claims commissions, Mexico played a leading role. It entered into two mixed-claims arrangements with the United States in 1923. One concerned “special” claims (as they were called) of alleged injuries to American nationals from the revolutionary disturbances in Mexico in 1910–20. The other dealt with “general” claims of alleged injuries of all sorts by Mexico to Americans, as well as by the United States to Mexicans. The specialclaims commission was not a success. Although over three thousand claims

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were fi led, only two substantive decisions were rendered, both of which were highly controversial. Eventually, in 1934, the remaining special claims were settled en bloc by a lump sum payment of $5.4 million by Mexico to the U.S. government, which then devised an internal process for hearing the claims and distributing the sum. The general claims commission heard more cases, but there too, matters were expedited by the conclusion of a global lump sum settlement in 1941 (a payment of $40 million by Mexico). Mexico also concluded general claims conventions with six European countries in the period 1924–27 (Britain, France, Germany, Italy, Spain, and Belgium). Finally, there was a general mixed-claims commission established by Panama and the United States in 1926. These claims commissions, in the aggregate, produced an avalanche of case law that was far larger in bulk than that of the P.C.I.J., and more varied as well.

Attacking Extraterritoriality It has been observed that Japan, uniquely, had succeeded in bringing an end to extraterritoriality privileges of the developed Western states, by way of a series of bilateral treaties. After the Great War, the other states sought to do the same, with varying degrees of success. Siam replicated the Japanese approach. The decisive step occurred in 1920, when the American government agreed to give up extraterritorial privileges for its nationals. A similar concession by Japan came four years later. Other European countries soon followed suit, so that by 1926, all extraterritoriality arrangements had been terminated in that country. In Turkey, the main capitulation agreement of 1740 was still in force at the outbreak of the Great War. The Ottoman government purported to terminate the capitulations unilaterally in October 1914, but this had no effect in light of the eventual Allied victory. In the Treaty of Sèvres of 1920, the victorious powers even provided for the extension of the capitulation privileges to all other Allied states that did not then benefit from them. This treaty, however, did not enter into force. The Treaty of Lausanne in 1923 was very different on this score. It provided for “the complete abolition” of the Turkish capitulations “in every respect.” This applied only to Turkey itself, though, and not to the whole of the Ottoman Empire. So the mixed courts of Egypt continued to operate. A separate arrangement to end them was concluded in 1937, in the

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form of the multilateral Montreux Convention. It provided that the mixed courts would be wound up in 1949 and that, until that time, they were to apply Egyptian instead of foreign law in their proceedings. The Chinese government had less success in eliminating extraterritoriality. The republican government was less relaxed than its imperial predecessor had been on the subject and pressed energetically for its abolition. A potentially important step took place at the Nine-Power Conference of 1922, which established a commission to look into the matter. This body, however, to the intense disappointment of the Chinese government, did not recommend the immediate termination of extraterritorial arrangements. Nor (as noted previously) did China succeed in enlisting the aid of the League of Nations Assembly. Unilateral abrogation of Western privileges was attempted, with varying results. In 1927, the Persian government unilaterally denounced all of its capitulation treaties en bloc. This proved effective. The Chinese government, though, had less success with this strategy. When it purported to end Belgium’s extraterritorial privileges in 1927, the Belgian government refused to acquiesce and brought a claim against China in the World Court for breach of its treaty rights. A settlement was reached, in which Belgium agreed in principle to end its privileges—but only when other countries did so. Other states made similar commitments, but to no practical effect. No state took the decisive first step of actually relinquishing its privileges, so that extraterritoriality remained in place in China throughout the interwar period. But at least the principle of abolition had been established.

Minority Protection International commitments for fair treatment of minority groups were not a complete novelty in the post–Great War era. In 1878, upon attaining independence from Turkey, Romania was placed under a treaty obligation to refrain from discrimination against minority populations. It was only after the war, however, that this strategy of minority protection by way of treaty commitment was employed on a large scale. This was, in effect, the quid pro quo for the attainment of independence by the various former parts of the Habsburg and Ottoman Empires. In the case of the four defeated Central powers—Austria, Bulgaria, Hungary, and Turkey—provisions for the

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protection of minorities were included in the respective peace treaties. Separate minorities treaties were then concluded with three newly created states (Poland, Czechoslovak ia, and Yugoslavia), plus Romania and Greece. Commitments to minority protection were also made by way of declarations to the League Council by Albania, the three Baltic states, and (later) Iraq. A noteworthy feature of the minority arrangements was provision for continuous oversight of their observance. This was undertaken by the Minorities Section of the League secretariat. Matters could be brought before the council and decided by majority vote (i.e., with unanimity not being required as it was generally in League bodies). Arrangements in the form of bilateral treaties were employed for two areas. One was Greece and Turkey. Here, the solution—a decidedly drastic one—was to make a dramatic reduction in minority problems by means of a mass population exchange, agreed in 1923. The other special arrangement concerned Upper Silesia, a region contested between Germany and Poland. After a plebiscite failed to resolve the matter, the two countries concluded a bilateral treaty in 1922, which partitioned the area and also contained promises for fair treatment of minorities. The Upper Silesia Convention had the dubious honor of being one of the lengthiest treaties ever concluded. More interestingly, it differed from all of the other minorities arrangements in establishing a special tribunal to hear complaints by individuals in either minority community of mistreatment by their new (and often unwelcome) masters. The arrangement worked badly, in the event, largely because of the very different degrees of education and political awareness on the part of the ethnic Germans and ethnic Poles. The Germans were the more prosperous and better educated, and they made vigorous use of the complaint procedures. As a result, the arrangement probably ended up producing at least as much friction and ill will as genuine minority protection. Minorities issues became a very fruitful source of business for the World Court, most commonly concerning treatment of ethnic Germans in Poland. On two occasions in 1923, Poland was found to be in breach of its minorities treaty. The Upper Silesia situation came to the Court’s attention on a number of occasions, resulting in rulings that Poland was in breach of the 1922 convention. Litigation was also brought concerning the adherence of Albania to its minorities treaty. Over time, the League’s minorities system

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became increasingly unpopular. Governments disliked them as badges of second-class international citizenship and as restrictions on their freedom of action. The intended beneficiaries, too, became increasingly disillusioned, as hopes for improved treatment went largely unfulfilled.

Further Legislation The interwar period was a busy time in the conclusion of multilateral treaties, on a wide range of subjects. In the area of aviation, for example, a Convention on Aerial Navigation was adopted in 1919, which marked the definitive rejection of proposals for freedom of the air, analogous to freedom of the high seas. Instead, there was recognition of “complete and exclusive sovereignty” of states over airspace above their territories. The convention also set rules on such topics as the nationality of aircraft, procedures to be followed on departure and landing, and certain prohibitions on transport (of explosives or armaments), as well as establishing an International Commission for Air Navigation. Aerial warfare received some attention soon after this. In 1923, a group of private experts, under the chairmanship of Moore, met in The Hague to draft a set of rules for the conduct of aerial warfare. Although these did not take the form of a legally binding treaty, they represent, to the present day, the most authoritative statement of the law of aerial warfare. In 1925, a convention prohibiting the use of asphyxiating gases was drafted. This was widely ratified by states, but usually subject to the important reservation of the right to employ such gases against an enemy that used them first. In 1929, two additional Geneva conventions were concluded under the auspices of the International Committee of the Red Cross—one extending the immunities of medical personnel to airborne units, and the other on prisoners of war. After several unsuccessful attempts, rules on submarine warfare were finally agreed in the London Naval Protocol of 1936. It did not prohibit the sinking of merchant ships, but it required that provisions be made for the safety of passengers and crew in the event of a sinking. The most prominent treaty on the subject of armed conflict was the Pact of Paris of 1928 (or Kellogg-Briand Treaty, after its two principal instigators, Frank Kellogg of the United States and Aristide Briand of France). It took the momentous step of prohibiting war “as an instrument of national policy.” In time, over sixty states became parties to it. The pact was not a charter of

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absolute pacifism, since it was clearly understood by the parties that armed force could be used in self-defense. And it seemed likely, too, that force could still be employed in collective security efforts, since these would not count as war in pursuit of “national policy.” Moreover, no form of sanction was specified in the treaty. The pact, therefore, may have seemed little more than a high-profile trumpeting of idealism. But it would later prove to have some very important and unexpected effects. In one area—suppression of crime—various initiatives were proposed during this period but not ultimately adopted. The Advisory Committee of Jurists, the body that drafted the Statute of the World Court, favored the establishment of an international criminal court alongside the P.C.I.J. The idea was principally the initiative of the Belgian member of the committee, Édouard Descamps. The criminal tribunal would have operated as a kind of companion to the World Court, to place accused individuals (rather than states) on trial. But the proposal was not acted on by the League Council. A more concrete arrangement for an international criminal court emerged later, in the wake of the assassination of King Alexander I of Yugoslavia during a visit to France in 1934. A convention was concluded in 1937 for the trial of alleged terrorists by an international tribunal. This would be done entirely at the option of any state that had custody of an alleged terrorist. The state could elect to transfer the accused person to the international court, where it would be responsible for conducting the prosecution. The convention, however, did not attract enough ratifications to enter into force.

Codification There continued to be disagreement among international lawyers over the codification of international law (or parts of it). Even among those in favor, there was disagreement as to how it should be done. A key question was whether it was better to have states undertake the task, or alternatively to entrust the task to technical experts (i.e., to international lawyers). At stake in this debate was whether the question of codification was better regarded as a fundamentally political activity or as a technical exercise. A prominent advocate of the technical approach was Schücking. Root was strongly of

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the other persuasion. He held that codification, by its nature, entails the making of new law and is therefore essentially a legislative task—and consequently one for politicians. As it happened, the period witnessed noteworthy codification initiatives of both kinds. The political one took place at the initiative of the League of Nations, and the private one by a team of scholars based at Harvard Law School in the United States. The League’s codification conference met in The Hague in 1930, with forty-two states represented, including the United States (plus an observer from the Soviet Union, which was not then a League member). Schücking was present for Germany, and Manley Hudson for the United States. No attempt was made to codify the whole of international law. Instead, three subject areas were selected: conflict-of-nationality questions, territorial waters, and liability of states for injuries to foreign nationals. The results proved meager. The subject of nationality was the one on which the Hague Conference made the greatest progress, in the form of a multilateral convention dealing with various problems arising from conflicts of nationality laws (e.g., from dual nationality). On the topic of territorial waters, an attempt was made to reach agreement on the width of territorial seas. But the most that could be achieved was a survey of the diversity of state practice in the area. Least successful of all was the attempt to codify the law on state liability for injuries to foreigners. It foundered on the inability to resolve two crucial questions. First was whether states are under a general duty to exercise due diligence to prevent injuries from occurring to foreigners. Second was whether there is an international standard of treatment of foreigners or merely a nondiscrimination principle, as advocated by Calvo. The most ambitious scholarly codification initiative of the technical kind was conducted under the auspices of the Harvard Law School in the United States (with the financial support of the Carnegie Endowment for International Peace). Under the overall direction of Manley Hudson, the Harvard research project concluded a series of thirteen draft conventions in the period 1929–39, on a broad range of subjects: from diplomatic and consular law, to territorial waters, extradition, the law of treaties, nationality, injuries to aliens, and neutrality. None of these, however, was ever adopted as binding law by states. So, for all of its scholarly value, the Harvard project had little practical impact. The Harvard codifiers were not afraid to break new ground. In the area of neutrality, they proposed significant changes in the existing law. A convention

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on aid to victims of aggression also envisaged a significant change in the law of neutrality, to permit countries to provide aid to victim states without thereby incurring liability to the aggressor. The effect would be to relieve neutral states of the fundamental duty of impartiality in cases of aggression. In this area, the Harvard researchers can be credited with a fair degree of prescience, since (as will be seen presently) their ideas were soon put to concrete use.

Battles of Ideas If there were striking institutional innovations during this period, there were some new developments, too, on the conceptual front. There was also an important new forum in which to expound them: the Hague Academy of International Law. The plans for it had been laid before the war, but they only came to fruition afterward. Located alongside the World Court in the Peace Palace, the academy was not a degree-granting body, and it had no permanent faculty. Instead, it offered a series of annual courses on selected topics given by prominent figures from around the world, starting in 1923. The publication of these courses provides a treasure trove for the exploration of different perspectives on international legal topics—and on the subject as a whole—over the years. An especially striking feature of the interwar period was the emergence of radical, or at least potentially radical, challenges to international law from states with new forms of official ideology. This was the first time since the French Revolution that this had been so. Here, challenges came from both the left and the right—the left, from socialist Russia, and the right, from fascist Italy and Germany. It is interesting to note, though, that, although the ideologies may have been new, the international-law positions flowing from them fell, for the most part, into the existing schools of thought.

The Continuing Reign of Positivism In general, mainstream positivism continued to reign as the dominant philosophy of international law, even if it no longer held so exalted a position as it had before the war. But there were some important changes, chiefly in

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the emergence of the empirical variant as the leading version. The commonwill theory largely faded from the scene, for two reasons. One was that its prewar champions turned their attentions in other directions. Triepel largely abandoned international law, in favor of his other interest, constitutional law. Anzilotti remained very much on the international-law scene, as a judge on the World Court. But he underwent an important change of position that, as will be presently seen, entailed abandoning some key tenets of the common-will position. Voluntarism, in its nineteenth-century splendor, also largely faded, for lack of prominent supporters. Lasson was now dead. Kaufmann continued to be active—but, like Anzilotti, in rather different intellectual directions than before. One of the most prominent writers in the empirical positivist tradition—to the point that he could be considered the embodiment of mainstream positivism—was the German Karl Strupp, who was professor of law at the University of Frankfurt. He frankly described himself as “a pureblooded positivist.” Strupp even gave as succinct a statement of the mainstream positivist credo as has ever been set forth: Public international law is a law between states, not above them. The states being equal among themselves, public international law is a law of coordination and not of subordination. Important consequence: The states are only bound by norms which they have freely and voluntarily accepted. More specifically, Strupp was a champion of the empirical variant of positivism, explicitly voicing a lack of confidence in both the common-will and voluntarist theories. In the spirit of Hall, whom he explicitly cited, he contended that the real basis of international law is a factual one: the phenomenon of reciprocity. Reciprocity, he was careful to explain, is not itself a legal norm. It is a fact of social life, which serves as the foundation of all legal norms. Its origin, in Strupp’s opinion, was strictly utilitarian, arising out of the rational self-interest of the actors—out of “pure egoism,” as he put it. The principle of pacta sunt servanda was described as, in its inception, “a prejudicial norm,” with the sense of legal obligation maturing only later. Strupp hastened to assure his readers that this thesis, most emphatically, was not an endorsement of natural law because that extralegal basis lay

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in de facto pragmatic calculation and not in any transcendental moral notions. A memorable World Court case, in 1927, confirmed the dominant role of positivism—but also revealed the force of the opposition to it. The judges split evenly, so that the outcome was determined by the vote cast by the president (Judge Huber from Switzerland). The case arose out of a maritime collision, off the coast of the island of Lesbos in the Aegean Sea. A French ship called the Lotus collided with, and sank, a Turkish vessel, with the loss of several lives. Turkish authorities then instituted criminal proceedings against the French captain. The French government strenuously insisted that Turkey had no right under international law to prosecute the captain, on the ground that international law reserves jurisdiction exclusively to the flag state of the alleged wrongdoer (France, in this case). The Court ruled against this contention. In so holding, it gave as clear an endorsement of mainstream positivism as any international tribunal has ever given. State conduct, held the Court, is governed by a fundamental “principle of freedom”—meaning that states are permitted to engage in any conduct they wish, unless there is a rule prohibiting that conduct. Moreover, such a prohibitory rule can come about only as a result of the free acceptance of the rule by the state itself. International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages . . . established in order to regulate the relations between these co-existing independent communities. . . . Restrictions upon the independence of States therefore cannot be presumed. In the dispute at hand, the Court held that no rule had emerged barring the state of the victim vessel (Turkey) from asserting jurisdiction. So the prosecution could proceed. If positivism—at least in its empirical version—retained its position as the ruling philosophy of international law in this period, it should not be thought that this was merely a passive matter of survival. Far from it. There was a significant further exploration of its bases. These new explorations came from a group of thinkers in Austria, and from one in particular.

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The Vienna School The Austrian writers of the 1920s who reshaped positivist thought were very conscious of how far they were departing from their nineteenth-century mainstream forebears. Their ideas have been given various labels, such as “analytical positivism,” “critical positivism,” and “neo-positivism.” Most commonly, though, these writers are referred to as the Vienna School, in honor of their place of origin. The leading figure was Hans Kelsen. Other prominent members included his fellow Austrians Josef Kunz and (for a time) Alfred Verdross. Kelsen was a native of Prague, though from a German-speaking family. He grew up in Vienna. His family background was Jewish, but he elected to convert to Catholicism to remove social barriers to advancement. And advance he did, to a professorship at the University of Vienna in constitutional law. During the war, he was a legal adviser to the minister of war. In 1919, he played the dominant role in the drafting of the constitution of the new Republic of Austria and then went on to serve as a judge on the Constitutional Court. His judicial career, however, was cut rudely short by an outbreak of what would later be called the “culture wars.” A ruling by the Court in 1927 in favor of the legality of remarriage sparked an outcry from conservative religious forces. Rioting broke out, with Kelsen as a foremost target, in the course of which the Palace of Justice was burned down. An amendment to the constitution brought about the dismissal of the offending judges. After this chastening brush with reality, Kelsen moved to the University of Cologne in Germany. It was in his Austrian period, though, that he emerged as the spokesman of the Vienna School. The foremost feature of the Vienna School approach was its powerfully normative character—to the point that it has sometimes been labeled as the “normative” approach to international law. This is the belief that law—whether national or international—is, above all else, a set of rules that the subjects of that law are obligated to obey. The question which then immediately presents itself is where these rules come from. The Vienna School was certainly emphatic as to where they do not come from. They do not come from natural law. One of the hallmarks of the Vienna School was a relentless hostility to natural law. In this sense, Kelsen and his followers were squarely within the confines of mainstream positivism.

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More specifically, the Vienna School may be regarded as an in-depth exploration of the conceptual roots of the empirical version of positivism. One indication of this was the important role that was assigned to sanctions. It was insisted that a norm qualifies as a true legal obligation if (and only if) a breach of that norm exposes the actor, at least potentially, to a lawfully administered sanction of some kind. A sanction is lawfully administered, in turn, if the person imposing the sanction is legally empowered to do so. It might be asked: empowered by whom? The answer was: empowered by some greater authority. It may then be wondered: who grants that right of empowerment to the greater authority? The answer was: some authority that is greater still. And so on. Except that Kelsen conceded that this chain of responses could not go on forever. Eventually, there must be some ultimate authority who does not derive his own authority from a superior. This ultimate authority is not, however, a sovereign ruler. Instead, it is a sovereign norm, which Kelsen called the “basic norm” (Grundnorm). The most important feature to appreciate about Kelsen’s basic norm is that it was formal rather than substantive in nature. That is to say, it did not dictate or determine the content of the law. Instead, it dictated the authority by which the law was made. The content of the laws, he emphasized, cannot be deduced, in the style of natural law, “by any intellectual operation.” It can only be discovered empirically, by ascertaining what it was that the authorized lawmakers have actually chosen to enact. In other words, according to Kelsen, the substantive content of law is a product of will—that is, the will of the persons possessing the authority to make law. On this point, Kelsen was an orthodox positivist. But he contended that the authority to make law is not a product of will. It is an emanation from the basic norm. As to the actual content of the basic norm of international law, there was room for disagreement within the Vienna School and its allies. Kelsen’s own statement identified it as “the general principle that we ought to behave in the way that our fellow men usually behave and during a certain period of time used to behave.” Put slightly more tersely, his basic norm was the proposition that “international custom is a law-creating fact.” The basic affinity with the empirical variant of positivism is clearly apparent here. Not surprisingly, there were some alternative suggestions for the exalted status of basic norm. One of them came from an especially interesting source: Anzilotti. He, in effect, reconfigured his common-will theory along the lines

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laid down by Kelsen. In the process, he offered a rival candidate for the basic norm: the principle of pacta sunt servanda. In a way, this change of position on Anzilotti’s part did not mark any real surrender of his common-will theory. But it did involve placing it onto a somewhat different foundation. His previous position had been that the principle of pacta sunt servanda was itself the product of agreement between states—with the brute fact of agreement therefore functioning as a kind of primordial juridical force in its own right. The principal significance of Anzilotti’s change of position lies in the light that it sheds on the nature of Kelsen’s normative approach to international law. That approach enabled a unification to be achieved between the empirical and the common-will versions of positivism. The two variants could now be regarded as identical in their formal structure, because both saw international law as being rooted in a basic norm. They differed only on what the norm was: the empiricists (including Kelsen) thinking that it was a rule that made customary practices of states legally binding, and the common-will adherents (such as Anzilotti) thinking that it was the principle of pacta sunt servanda. In terms of its overall flavor, the outstanding feature of Kelsen’s system was its austerely intellectual, rigorously logical character. As a “formal” theory of law, it focused chiefly on the nature of law rather than its content. Moreover, the system was entirely self-contained. It was rigorously purged of any input from other sciences such as economics, history, or sociology. For that reason, Kelsen referred to it as the “pure theory of law.” In its general contours, it is strikingly reminiscent of the rationalist stream of naturallaw thought, and of Wolff in particular. And it is no accident that Kelsen had a high regard for Wolff. It is therefore more than a little odd to find Kelsen being—or at least purporting to be—so unremittingly hostile to natural law. The explanation is that, where the old natural-law systems dealt with the substantive contents of laws, Kelsen’s concentrated on forms (i.e., on the means for making law). His system was therefore a sort of formalist-cumpositivist mirror image of rationalist natural law. The Vienna School approach was compatible with a number of elements of mainstream positivism. For example, Kelsen accepted the principle of state freedom, as endorsed by the World Court in the Lotus case. In addition, he shared the insistence of his empirical positivist ancestors on the importance of a sanction for the viability of a legal system.

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At the same time, the Vienna School departed from nineteenth-century positivism in several very important ways. Three are of special note. First was the Vienna School’s firm rejection of voluntarism combined with a radical downgrading of state sovereignty. Much in the spirit of Duguit, Kelsen rejected the idea of states as possessing a real personality—the very foundation stone of voluntarism. The true position, in his view, is that states are merely governmental mechanisms in the hands of the individual persons who hold de facto power. International-law rules therefore are not directed to states as such, but rather to those individuals who wield the governmental power. “The subjects of international law,” averred Kelsen, “are individuals” and not states. A second major departure from the positivism of the nineteenth century was a rejection of the contractual picture of international law, in favor of a legislative one. Customary law was not seen as a tacit treaty making, but instead as a collective lawmaking act—with the effect that all states are legally bound by the customary laws that emerge. In this sense, therefore, international law was regarded by the Vienna School as a law above states and not merely a law between states. “States are bound by [customary] international law,” insisted Kelsen, “without and even against their will.” The third major departure of the Vienna School was closely connected to this second one. This was a rejection of the dualistic outlook of mainstream nineteenth-century positivism—that is, of the belief that international law and national law are separate systems. Kelsen must go down in intellectual history as one of the foremost exemplars of holistic thought and grand theory. In his opinion, “[a]ll quest for scientific knowledge”—including legal science—“is motivated by an endeavor to find unity in the apparent multiplicity of phenomena.” If law was to be a true science (as it certainly was in Kelsen’s eyes), then it simply could not be allowed to contain contradictions. All aspects of law (national, international, and so forth) must necessarily be “parts of one harmonious system.” Kelsen’s stress on unity at the expense of pluralism and localism was distinctly reminiscent of Dante’s medieval dream of a unified global polity—and, not coincidentally, Kelsen’s earliest academic work had been a study of Dante’s political and legal theory. Criticisms of the Vienna School have been many. Some have found it to be too coldly austere, too far removed from the real world in its principled rejection of any appeal to, say, history or sociology. Some have objected that

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the system was too self-contained, too obsessively rational to have much attraction to practicing lawyers. It sometimes seemed more like an exercise in pure mathematics than in law. H. L. A. Hart, a professor of general jurisprudence at Oxford University, expressed scorn for the Vienna School’s “obstinate search for unity and system” in the teeth of the variety and diversity of the real world. Indeed, the spirit of the Vienna School was a far cry from the original antirationalist, antisystem approach of Comte and the empirical positivist lawyers of the nineteenth century. But it remains as probably the foremost example in the history of international law of a thoroughly worked-out, self-contained, coherent system of thought. Wolff would have been proud of it, even if Comte would not.

Liberalism In certain respects, liberalism continued along the lines marked out in the nineteenth century—supporting freedom of trade and investment, accountable government, and respect for individual human rights. There were also some important changes. One is that liberalism now, for the first time, began to have a constituency among professional international lawyers. In addition, there was an important new element in the conceptual mix: strong support for collective security policies of the type adopted by the League Covenant. This was, of course, a principal legacy of that archetypal liberal, Woodrow Wilson. The intellectual home of this new avatar of liberalism was not primarily international law, but rather a newly created academic discipline called international relations. This was largely an initiative of the English-speaking world. At its inception, it was regarded as the scientific study of the prevention of war and the promotion of world peace. The first academic chair in the subject was created in 1919 at the University of Wales at Aberystwyth— named, appropriately, for Woodrow Wilson. Its charter stipulated that the subject be studied “with special reference to the best means of promoting peace between nations.” In the United States, there were several prominent liberal figures in international law who pressed for increased cooperation by their country with the League of Nations and for American adherence to the World Court (without success on both counts). One was Manley Hudson, who was unable

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to persuade his country to ratify the World Court Statute, but who went onto the Court bench himself in 1936. Other major liberal figures of the period included James Shotwell of Columbia University and also the Carnegie Endowment for International Peace and Charles Fenwick of Bryn Mawr College (where Woodrow Wilson had previously taught). Perhaps the most prominent of the American liberals was Quincy Wright (the brother, incidentally, of the famous population biologist Sewell Wright). Wright helped to establish the first program in international relations in his country in 1931, at the University of Chicago, where he taught political science. He was a consistent champion of closer cooperation between the United States and the League and an advocate of the view that traditional neutrality law was being superseded by collective security. In Europe, liberalism had two prominent spokesmen, one in public life and the other in the academic world. The public figure was Nicolas Politis. We have encountered him as the foreign minister of Greece at the time of the Paris Peace Conference. He continued to be active in government service. As an ardent champion of collective security, he was an appropriate (and dedicated) representative of his country at the League headquarters in Geneva. In this vein, he (like Wright in the United States) was outspoken in his belief that the traditional law of neutrality must be regarded as obsolete in an age of collective security. It had been replaced by a duty on the part of all states to band together to defeat aggressors—if not by military means, then at least by abandoning the old neutral idea of impartiality and embracing the notion of a duty to assist victims of aggression and to isolate aggressors. The other major liberal figure was an academic, Hersch Lauterpacht, who was British by adoption, though originally from Galicia (the Austrianowned portion of Poland). His father was a timber merchant. When young Lauterpacht was mobilized into the Austrian armed forces in the Great War, he was put to work in his father’s factory, which had been requisitioned. After the war, he studied at the University of Vienna, under Kelsen, although he would go on to reject many of his teacher’s doctrines. In 1923, and barely able to speak English, he moved to Britain and worked as a research assistant for Arnold McNair (a future World Court judge) at the London School of Economics. He became a lecturer himself, and a British national, also qualifying as a lawyer in England. In 1938, he was installed in the Whewell

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professorship of International Law at Cambridge University (as McNair’s successor). Lauterpacht soon revealed himself to be a scourge of mainstream positivism. He scornfully characterized the typical positivist lawyer as “a mere chronicler of events laboriously woven into a purely formal pattern of a legal system.” He forthrightly rejected the fundamental tenet of positivism, that the consent of states is the foundation of international law, insisting instead that the rules of international law “had their birth independently of [states’] express or tacit consent.” He allowed only a marginal role to consent: as being required for the making of specific new rules of law. But he insisted that consent is not a foundational principle of international law in general, as the positivists believed. Instead, he maintained that the principles of international law arise out of “the fact that States form a legal community.” Another feature of positivism that Lauterpacht attacked was the dualism of Triepel and Anzilotti. Lauterpacht pronounced himself to be in favor of a “deliberately monistic” stance. International law, he contended, is “the superior and comprehensive legal order of which the systems of national jurisprudence are in a real sense delegated systems of law.” Consequently, the norms of national and international law are, in his opinion, of essentially the same character, stressing “the fundamental analogy of individuals and States, with the resulting approximation of the moral standards underlying both.” Liberalism was therefore much more firmly part of the international legal scene now than it had been in the previous century. There was still no single comprehensive treatment of it, so it remained less visible than its rivals as an intellectual school of thought. It was more in the nature, now as before, of a program for various reforms than a corpus of systematic doctrine. In this respect, it contrasts with solidarism, which achieved a high level of intellectual development during this period.

The Solidarist (or Sociological) School The beginning of the solidarist (or sociological) school in the nineteenth century, in the writing of Durkheim and Duguit, has been noted previously. It was only in the interwar period, though, that this approach to international law received, for the first time, systematic treatment. Actually, “treatments”

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in the plural is more accurate, since there was no single body of doctrine constituting solidarism, in the manner of the Vienna School. Solidarism instead was a loose confederation of approaches bearing a variety of names such as functionalism or institutionalism. Three features shared by these disparate perspectives justify their placement together under the single banner of solidarism. One was an insistence on seeing international law as an outgrowth of actual social relationships in the real world. This was the sociological component. Second was the stress on the interdependence of states, rather than on independence, and the general downplaying of state sovereignty. Third was a basic optimism—and more specifically, a belief that international law is fundamentally rooted in consensus rather than in conflict. In its sociological character, solidarism’s contrast with the rationalism and “purity” of the Vienna School was notably sharp. In place of the austere logicism—the “pure theory” untrammeled by considerations of awkward reality—the solidarists took an intense interest in the rich complexity and diversity of real social life. It is therefore hardly surprising to find that major contributions to this way of thinking were made by sociologists and political scientists, in addition to lawyers—hence the appropriateness of “sociological school” as a possible alternate label for solidarism. The various solidarist approaches were in agreement with the Vienna School, however, in rejecting the mainstream positivist support for state sovereignty. One leading figure in the solidarist tradition had been active before the War: the Chilean writer Alejandro Álvarez. Apart from him, the champions of this philosophy of law were all of postwar vintage. One was a Swiss lawyer named Dietrich Schindler, who proudly proclaimed himself a supporter of “the sociological method.” The German writer Wolfgang Friedmann, in a similar spirit, regretted that there had been, thus far, “a fatal neglect of the essential social foundations of law.” In many ways, the solidarists and liberals were close together, especially in their shared support for collective security arrangements. Politis provides the best illustration of this point, as he could be fitted comfortably into both categories. We have noted his views on collective security and neutrality. He could be readily classified as a solidarist, too, by virtue of his insistence on regarding law as “the outcome of solidarity created by human needs” rather than as a product of transcendental, eternal truths. In this, he expressly

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invoked Duguit. He was also at one with the solidarists in his harsh criticism of state sovereignty, which he insisted “must be abandoned, or else the binding character of international law must be denied.” He was nothing if not consistent in his stance. If (as he favored) sovereignty is to be abandoned altogether, then along with it, the concepts of the absolute equality of states and the fundamental rights of states must also be ruthlessly discarded. He explicitly allied himself with Álvarez in denying the voluntarist doctrine of the real personality of the state. The most systematic writer in the solidarist cause was a French lawyer, Georges Scelle, who was a direct intellectual successor to Durkheim and Duguit. He was active in labor affairs and taught both international law and labor law at the University of Dijon for some twenty years. As a partisan of the political left, he was active in public affairs, serving briefly as a chef de cabinet to the minister of labor in the government of Édouard Herriot in 1924–25. For over thirty-five years, he served the International Labor Organization as a member of its Commission of Enquiry on International Labor Conventions. In 1933, he moved from Dijon to the University of Paris. The detailed statement of his solidarist vision of international law was set out in a book entitled Précis de droit des gens (Summary of the Law of Nations) in 1932–34. Underlying Scelle’s legal thought was a conception of society that had a strongly biological tinge, seeing all of the components of a social system as working together, in the manner of the organs and systems of a living creature. This gave his thought a certain affinity to organicist conceptions of natural law. While he had a cautious respect for natural law, primarily for its idealistic character, he also insisted that static natural law—that is, a system of a fi xed and unchangeable set of principles—must be rejected, in favor of what he called a “natural law of social development.” This was regarded as dynamic in nature and was expressly described as “a biological law.” At the heart of his system was what Scelle called “objective law,” which was the law that best corresponded to the social character and needs of a given society. This was not—or not necessarily—the same as positive law, which simply reflected the will of those holding political power at a given time. A fundamental feature of Scelle’s thought was his insistence that international society consists of individuals rather than of states. This entailed strong opposition to the voluntarist version of positivism, with its focus on states as

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real persons and the true subjects of international law. In this, he was in agreement with the Vienna School. He was also a sharp critic of the dualism of the common-will school, contending instead—like Kelsen—that legal science must comprise, ultimately, a unified system with a worldwide reach and no sharp separation between national and international law. As a result, state officials must be regarded, on Scelle’s thesis, as acting in a dual capacity—as servants of both national law and international law at the same time. Scelle described this phenomenon as dédoublement fonctionnel. This has been rendered in English as “role splitting,” but something like “dual-role functioning” seems more accurate (if awkward). The picture of the world drawn by Scelle has been described as “federalist,” in the sense that he saw the states of the world not as independent entities, seeking to maximize their own self-prescribed interests, but instead as components of a larger international society. International law should therefore be seen as the constitutional law of that larger society—integrating the various units and levels of government into a (more or less) coherent system and allocating competences to the various levels of government, broadly in the manner of national constitutions. Part of the role of this law is to ensure that the various components of this integrated system do not overstep their allocated functions. If Scelle was in agreement with the Vienna School in holding a monist conception of law, and also in rejecting the voluntarist and common-will versions of positivism, his overall outlook was very different. Where Kelsen’s approach was coldly intellectual, with all extraneous matter carefully excluded from his “pure” theory of law, Scelle’s thought was strongly rooted in the economic and social trends of the real world. His theory was very far from “pure.” In his opinion, legal norms emerge out of actual international practice. “[T]he essential objective norms of all of international society” were identified by him as “notions acquired by the universal conscience” and officially recognized by governments. Scelle candidly admitted that his federalist, or constitutional, vision of international law existed, as yet, only in the most rudimentary form. But he was optimistic that it was on its way. The task of realizing his vision was expressly compared to that of Sisyphus pushing his rock ever uphill, only to have it roll back down. He expressed confidence (or perhaps faith) that, in each round of this chore, the constitutional rock rolled downward by a slightly

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smaller amount than before. It is not surprising that Scelle’s ideas of world federalism were regarded with a certain degree of detachment, if not bemusement, in international-law circles. Hudson, for example, reviewing Scelle’s Précis, wryly characterized it as “not a book of the international law of today, but it may be a book of the international law of tomorrow.” It proved a prescient remark, as Scelle’s ideas became the foundation for the constitutionalist movement in international law in the late twentieth and early twenty-first centuries. Another manifestation of the solidarist outlook went under the label of functionalism, which in turn came in several variants. One of them was a fairly straightforward descendant of nineteenth-century St.-Simonism, with its technocratic, nonpolitical outlook. It stressed the integration of the world in nonpolitical ways. Its leading figure was the Romanian writer David Mitrany, whose principal inspiration was the New Deal of Franklin Roosevelt in the United States in the 1930s. Paralleling Mitrany’s work, but more strictly in the legal vein, was the writing of the American scholar Pitman B. Potter. He was a successor to Reinsch in the Department of Political Science of the University of Wisconsin—as well as in his focus on nonpolitical international organizations as a powerful force for world order. He became the first systematic expounder of a law of international organizations, with a massive treatise on the subject in 1922. Central to his outlook was an insistence on the need to “get below the logical, rhetorical, even literary forms of the law to its basic conditions and foundations.” The true bases of international law, he contended, are found in “the fundamental physical conditions of national life and international relations and their sociological interpretation.” He articulated a vision of a rationally administered world, less on the basis of legal norms than of scientific management. “[W]hat is needed for the regulation . . . of international relations,” he insisted, “is not ‘international law’ in the conventional sense, but legislation and administration.” He went on to assert that “[i]t might almost be said that an ounce of international administration is worth a pound of ‘international law.’ ” An intriguingly eclectic brand of solidarism was put forward in the United States by an American political scientist named Harold Lasswell, who was based at the University of Chicago. His early work was in the field of social psychology, on the subject of war propaganda. This led to a long-term interest

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in the ways in which symbols and signs could be employed by elites to form and manipulate the opinions of the masses. From this beginning came an image of the politics as, essentially, the process of the molding and controlling of masses by elites. Along with this elitist outlook, there was a strongly irrationalist component to Lasswell’s way of thinking. This came partly from early studies in Freudian psychoanalysis, combined with his insights into the way in which propaganda could be used to manipulate the thoughts and actions of people. “[T]he consensus on which order is based,” Lasswell candidly stated, “is necessarily non-rational.” Applying this approach to the legal sphere, Lasswell saw international law as the creation of what he frankly called a “world-myth”—a myth that could, however, actually become a reality by winning the acceptance of the population of the world. A world community, he maintained, cannot be created solely by material means, such as rules on cooperation in waterways, energy supplies, communications, and trade policy. What is required, in addition, is “emotionalized and idealized devices.” The most urgent quest of those seeking an orderly world is therefore the search for “world-symbols” that will effectively “convey the sense of wholeness and interrelatedness.” Politics is therefore, in essence, “the management of symbols and practices related to the shape and composition of the value pattern of society.” These ideas made little impact on international lawyers at the time. But that would change in due course.

The Revival of Natural Law The continued grip of positivism in international law meant that, for the most part, natural law continued, as in the nineteenth century, to play only a marginal role in international legal thought. But it attracted several notable adherents. The most forthright was a French lawyer named Louis Le Fur. He came from a Catholic Breton family and studied under Antoine Pillet. His original specialty was administrative law, but he took up international law after the war. His allegiance to natural law largely stemmed from his contacts with Catholic circles, where a revival of Thomist natural-law ideas had been under way since the late nineteenth century. In 1927, Le Fur presented his modern theory of natural law in a series of lectures at the Hague Academy of International Law.

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His theory largely echoed that of Wolff in the eighteenth century—and, before him, the rationalist theory of Aquinas from the Middle Ages. He insisted on the existence of “an objective justice, . . . independent of man.” He also stressed that law must take full account of the double nature of human beings: as material beings, on the one hand, and as moral and spiritual beings on the other. The moral aspect was seen as the more fundamental. His system was broadly axiomatic in character, in that natural law was seen to be founded on, ultimately, two basic duties: to honor commitments freely entered into, and to repair any injury resulting from an unjust act. These core principles are transcendental, timeless, and universal. The application of them to particular historical or cultural circumstances is another matter, and this is dealt with by what Le Fur called the “rational law.” This rational law determined the specific content of laws in individual societies, and it was a human creation. Finally, the task of positive law was to implement natural law by providing for sanctions against violators. The similarity to the medieval emanationist theory of the ius gentium, as well as to Wolff ’s concept of voluntary law, is clear. The outstanding natural-law advocate in the German-speaking world was the Austrian lawyer Alfred Verdross. He began as a prominent member of the Vienna School. As such, he demonstrated how easily the gap between the Vienna School and natural law could be bridged. In essence, nothing more was required than an alteration in the basic norm that undergirded the Vienna School’s normative system. In place of Kelsen’s basic norm of the lawcreating power of custom, Verdross substituted what he called the general sense of justice. This general idea of justice, Verdross believed, was an ascertainable, objective, universal conception, eternally valid and applicable to all cultures. Perspectives on, or ideas about, this fundamental sense of justice admittedly varied across cultures, but “the absolute value of justice” itself was universal. Verdross’s conception of natural law was essentially organicist, in the sense that it was not seen as something transcendental or set apart from human nature, in the manner of mathematical axioms. Instead, it was seen as a sort of collective inner conscience of the international community. As such, the sense of justice underlay and suff used positive law. He spoke of “anterior” and “posterior” law, with anterior being the fundamental principles of natural law, and posterior law—that is, state-created positive law—being

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merely supplementary. The basis of the anterior law was the general human sense of justice. A position similar to that of Verdross was expressed by a most unlikely figure: Erich Kaufmann, who, prior to the war, had been a stalwart of the neo-Hegelian, voluntarist camp. Perhaps his war experience had done something to dim his earlier enthusiasm for armed conflict. He served in the ranks of the German army and was wounded at the Battle of the Somme (winning the Iron Cross in the process). Whatever the explanation, there is no doubt that, after the war, his mind moved in different directions than his early neo-Hegelian thought. He had a high profi le in the German international legal world, acting as a consultant to the German foreign ministry and representing his country in a number of cases in the World Court, chiefly on minorities issues, with Poland on the other side. He also represented the Free City of Danzig in World Court litigation, and Austria in the Customs Union case in 1931. His early neo-Hegelian stance was not wholly repudiated. He remained very state-centered in his legal thought and, in his politics, a conservative nationalist with an instinctive hostility to the Weimar Republic. Ironically, Kaufmann’s continued adherence to conservative nationalism may have pulled him toward natural-law thought. Natural-law ideas could be useful weapons for attacking the Versailles peace settlement. Positivism, with its strong support for treaties as a principal source of law, offered less scope in this direction. In all events, after the war, Kaufmann discarded his previous neo-Hegelian allegiance and endorsed the idea of an unwritten law as the basis of positive law. In supporting the idea of “the unity of law in all the domains of law,” he expressed sympathy for Kelsen’s monism. He contended that natural law concerned “real categories of general and eternal order.” In an outright repudiation of his own voluntarist past, Kaufmann now expressly denied that law could be regarded as “a ‘creation’ of the will of States.” It must be acknowledged that “there are unwritten rules of law which are imposed upon [the] wills” of states. The only true source of international law, he now maintained, is “objective reason.” Kaufmann’s version of natural law resembled that of Verdross in being strictly nontranscendental. His “fundamental norms of law” were seen as the inner soul or formative force or living energy of the positive law. In explaining this idea, he referred to “the inherence of reason in reality and

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the participation of reality in reason.” Natural law was therefore not regarded as being in outright opposition to positivism. Rather, these were regarded as two aspects of law—the external and the internal—operating in coordination. The role of natural law in this partnership was to act as a kind of inner force—a voice of conscience, if you will—guiding the process of positive lawmaking into constructive and cooperative channels. In the English-speaking world—a heartland of empirical positivism— two major figures had at least some affi nities to the natural-law tradition, one in the United States and the other in Britain. The American was James Brown Scott, the longtime leading figure in the American Society of International Law (and editor of its journal), who was also active in the Carnegie Endowment for International Peace. It was late in his career, in the 1930s, that he became increasingly disillusioned with positivism, of which he regarded Grotius as the chief forerunner. He then took it upon himself to publicize the work of the earlier Spanish writers—chiefly Vitoria and Suárez. In carry ing on this intellectual missionary activity, he inevitably came to be knowledgeable about, and sympathetic to, the natural-law tradition. His reward for this labor came in an artistic form. In 1935–37, work was undertaken on a large mural in the Department of Justice in Washington, D.C., depicting the great lawgivers of human history. In the course of the painting, it was realized that no authentic likeness of Vitoria could be located. To fi ll this gap, the Spanish friar was depicted with the features of Scott—an interesting form of “job-sharing” in the quest for immortality. The British writer who spoke favorably of natural law was James L. Brierly, professor of international law at Oxford. He candidly conceded that a regard for natural law was a minority taste among international lawyers. Modern writers, he wryly noted, tended to treat it as “a superstition which the modern world has rightly discarded.” Brierly nonetheless praised the natural-law tradition for its recognition of “the existence of purpose in law,” and also for its constant reminder “that law is not a meaningless set of arbitrary principles to be mechanically applied by courts, but that it exists for certain ends.” The practical contribution that natural law can make, in Brierly’s view, is to provide a basis for dealing with situations that are not covered by specific rules of treaties or customary law. Natural law could make of international law a comprehensive, coherent, gapless system instead

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of simply a collection of specific rules on which states happened to have reached agreement. Support for this conception of natural law was readily available in the statute of the World Court. In identifying the law that the Court was to apply, the statute naturally identified customary law and treaties. But it added a third source: “general principles of law accepted by civilized nations.” These would be applied in situations, as envisaged by Brierly, in which there was neither a treaty in force nor an applicable customary rule that could resolve a dispute. Among those who saw this provision as a reemergence of natural law into juridical respectability—and welcomed it as such—was Lauterpacht, who lauded this provision of the Court’s statute as “a death blow to positivism.” The proclaimed “death” of positivism, not surprisingly, turned out to be something of an exaggeration. But these developments of the interwar period indicated, if nothing else, that the opposition to it was obstinately refusing to surrender. In fact, positivism was finding allies in some seemingly unlikely places, such as revolutionary Russia.

The Challenge of Socialism Karl Marx, the leading figure in socialist thought, made no attempt to devise a specifically socialist theory of international relations, although he did not hesitate to voice a hearty contempt for liberal free trade doctrine. The great moving force of history, in his view, was not conflict between states, but rather conflict between economic classes. It was only after the Bolshevik takeover in Russia in 1917 that a national government appeared on the scene with a strong ideological commitment to Marxian socialism—and only then that the need to think about interstate relations became imperative. As in the case of the French Revolution, there were intimations, at the beginning, of a radical break with the past. In November 1917, on the morrow of the revolution, a Decree on Peace was promulgated, which proclaimed “the unconditional and immediate annulment” of various secret treaties concluded by the previous regime—but only to the extent that such treaties were aimed at “securing advantages and privileges for the Russian landowners and capitalists” or the retention of annexations. The Bolshevik leader Vladimir Lenin explained that the new government rejected “all clauses on

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plunder and violence,” but that it positively welcomed “all clauses containing provisions for good-neighborly relations and all economic agreements.” On the broader question of what approach to take to international law, Soviet doctrine underwent a number of shifts. At all times, however, Soviet attitudes were underpinned by a basic belief in an underlying and permanent hostility between capitalist and proletarian economic classes. This in turn was now reflected on the international level in the belief in a natural hostility between states dominated by those classes, that is, between Bolshevik Russia, on the one hand, and the rest of the world on the other. There was an equally natural suspicion of traditional international law, since it was wholly a product of relations between the capitalist states. The first socialist exposition of international law was by Yevgeny A. Korovin, whose career would be something of an intellectual roller coaster ride. In 1924, he wrote a book entitled The International Law of the Transition Period. Reflecting the Bolshevik confidence that the laws of history were firmly on the side of socialism, he anticipated the coming era of global socialism would be characterized by an appropriately new kind of international law, in which the solidarity of the industrial working classes would be the foundation. This appears to have been essentially a solidarist vision, with international law being transformed in the long term into what one (nonsocialist) commentator described as “a federal law for a world-wide Union of Soviet Socialist Republics.” That heady vision, however, was for the future. In the immediate term, Korovin maintained that no unity with the capitalist world was possible on the juridical, moral, or ethical planes. These two realms lived in a state of permanent Hobbesian hostility vis-à-vis one another, much in the manner of the Dar al-Harb and the Dar al-Islam of medieval Islamic law. As in the original Hobbesian vision, though, it was recognized that actual armed conflict was not inevitable. A certain degree of functional cooperation was possible in three areas: humanitarian interests (such areas as public health or the preservation of historical monuments), technical areas (such as communication and transport), and matters of social or political importance. Socialist and capitalist states, Korovin explained, can “meet on the strictly limited ground of mutual concessions” and thereby conclude treaties with one another. The effect, he pronounced, is that, even though “[t]he Tower of Babel of world-wide unity is left in ruins . . . , the number of individual

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agreements increases daily.” In his opinion, treaties were the sole source of international law, since customary rules had been established wholly by the capitalist states. Socialist legal thought in this regard had a distinct affinity with the common-will variant of positivism (although Korovin rejected the distinction made by the common-will school between law treaties and contract treaties). Certain key aspects of mainstream positivism featured in Korovin’s thought—and remained central to socialist theories of international law. One was a hearty rejection of natural law, as contrary to the Marxist principle that ideas arise out of real economic and social relationships, and that universal and eternal norms do not exist outside of the historical and economic process. Korovin was also a supporter of the voluntarist principle of autolimitation. In addition, he insisted on a strict and rigorous equality of all states. Also consistent with positivism was an explicitly pluralistic and contractual outlook on international law. Korovin denied the existence of a single, universal system of international law. He posited instead that there were various different systems or “circles”—one for the Western Hemisphere, another for the major powers, another for national minorities, another for colonial states. There was still a further one dealing with relations between socialist countries and capitalist ones. In certain respects, Korovin marked out new departures in international law, of which two may be noted briefly. Neither was exactly new. First was a willingness to consider nonstate entities to have a role to play as subjects of international law. Here, there was a distinct echo of the nationality school of the nineteenth century, with its stress on nations rather than states as the primary units of collective social and political life. For nations, however, Korovin substituted economic classes—which differed from nationalities in having a worldwide distribution. A second quasi-innovation of Korovin was his employment of the principle of the sovereign equality of states in the service of opposition to imperialism. He condemned the various badges of legal inequality such as the extraterritoriality systems operated by the major powers in the developing countries. Throughout its history, anti-imperialism was to be a powerful strain of socialist doctrine. The ideas of Korovin were generally echoed—at least initially—by E. B. Pashukanis, who became the leading theorist on law in general during the early Stalin period. Although not an international-law specialist, Pashu-

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kanis wrote the entry on international law in the Great Soviet Encyclopedia of 1929. He retained the generally positivist outlook of Korovin, expressing approval of the work of such pragmatist figures as Zouche and G. F. von Martens. He favorably contrasted their focus on “actual international customs and treaties” with the stress of the Grotian (i.e., rationalist) writers on “abstract concepts.” Korovin was praised for articulating a new and distinctively socialist theory of international law. According to Pashukanis, the world was now in a transitional period, when socialist and capitalist states were both present on the world scene—with the result that international law must now, in this transitional time, take the form of “a temporary compromise between two antagonistic class systems.” Support for Korovin’s opinions, however, was soon to fade dramatically. When Pashukanis wrote his other major piece on international law, a textbook entitled Outlines of International Law in 1935, it was evident that Korovin was decisively out of favor. One reason for this was his downplaying of the role of the state and his acceptance of nonstate actors as subjects of international law. These ideas went against the more hard-edged totalitarian spirit of Stalinism. Also incompatible with prevailing Soviet official doctrine was Korovin’s rejection of custom as a source of law. Pashukanis now asserted that custom and treaties were of equal value as sources. Korovin’s pluralistic view of the various circles of international law also lost official support. Now it was insisted that the form of international law was the same as it had been in pre-Bolshevik days, even though the content of Soviet foreign policy differed greatly from that of the tsars. In the face of these attacks, Korovin dutifully made a full recantation of his views in 1935. But at least he managed to survive the turbulent times, which was more than could be said for Pashukanis. He fell terminally from favor—branded an enemy of people in an article in Pravda in 1937 and purged the following year. His precise fate has never been ascertained. The reason for Pashukanis’s fall from grace had mostly to do with his ideas about domestic law, but some of his international-law ideas were also condemned. Most notably, the idea of a distinctively socialist international law lost official favor, as confirmed by a set of theses on legal matters adopted by a council of jurists in 1938. For all of the radicalism of Soviet ideology, it does not appear that any very major challenge was actually mounted to Western ways of thought in

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international law by Soviet writers. It is more accurate to say that the Soviet writers sought to employ existing doctrines in their favor—and that mainstream positivism offered ample scope for this strategy. A resolute insistence on the principles of respect for state sovereignty, nonintervention, and the strict equality of all states were consistent features of socialist thought—and also core components of mainstream positivism. Socialist writers parted from the positivists chiefly in claiming to have a superior insight over the nature of international law as a product of historical circumstance. But even here, socialists and positivists were largely in agreement, since they both viewed law as man-made, and hence as necessarily a product of historical and material conditions. Soviet writing accordingly tended at times to have a certain blustery character—aggressively asserting its novelty and superiority, while in fact fitting very comfortably within the positivist mainstream.

Fascists and Nazis Fascist Italy and Nazi Germany made no lasting contributions to international legal thought. In the Italian case, fascist thought moved largely in the existing intellectual channels of mainstream positivism—and particularly its extreme neo-Hegelian component. There was a powerful stress on state autarky, or self-sufficiency, dutifully in line with Benito Mussolini’s political and economic program. In this regard, fascist thought may be seen as an extreme version of mainstream positivism’s stress on the independence rather than the interdependence of states. The only Italian fascist writer who devoted even token attention to international law was a professor of corporative studies (a fashionable subject at the time) at the University of Pisa named Ugo Spirito. He began his intellectual career as a positivist, gravitating to neo-Hegelianism. Attacking liberalism for denying the existence of frontiers and nations, he called for “the triumph of the corporative idea throughout the whole world.” He put forward the thesis that the world should comprise an interlocking network of autarkic, planned economies—“a system of collaboration between nations,” as he described it, “under which every country, by organizing its economy in  a planned way, takes account of the organization prevailing in other countries.”

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In Nazi Germany, the position was different. Here, more attention was given to international law (although not by Adolf Hitler, who despised lawyers). There were two principal features of international law, one of them new and the other not. The one that was not new was the deployment of international-law arguments to attack the validity of the Versailles peace settlement. This had been a theme of German activity since 1919. This attack had been mounted from both the political right (e.g., by Kaufmann) and left (e.g., by Schücking, who had a pacifist background). It is notable that naturallaw ideas played a part in this effort, in the form of an assertion that the Versailles regime should be regarded as invalid to the extent that it transgressed fundamental principles of law, such as the equality of states. The new approach offered by the Nazis was a racist perspective on international law. Even this, though, was less a complete innovation than a perversion of the ideas of the historical school and the nationality school of the nineteenth century. Nazism had an affinity with the historical school in its conception of the nation as a Volkstaat rather than as a Rechtsstaat— that is, in its stress on the primordial and spontaneous relations of peoples, instead of on formal state structures, as the foundation of political life. In the Nazi view, the will of the nation emanates, in a quasi-mystical fashion, upward from the consciousness of the people. It is not handed downward by the will of a sovereign. This much was compatible with the general outlook of the historical school. The principal Nazi innovation was to hold that this collective will or consciousness is not national in character, as it had been for Mancini and Mazzini, but instead is racial. Moreover, there was no trace in Nazi thought of the broad-minded, tolerant cosmopolitanism of Mazzini, which would hold all the races of the world to be equal in their diverse contributions to the great cause of humanity at large. To the Nazis, races were ranked hierarchically, with the Aryans generously accorded the top position. The founding writer of the racist school of international law was Helmut Nicolai, in a book ominously entitled Die Rassengesetzliche Rechtslehre (Legal Doctrine Based on the Law of Race), published in 1932. It asserted that the Volk is “the primary, meaningful unit of mankind.” In line with historical school thought, Nicolai expressed hostility to what he regarded as artificial law promulgated by state authorities, preferring the law that emerged spontaneously from the life of the people.

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Nicolai fell out of official favor in 1935 (for reasons unrelated to his legal opinions), but there were others to take his place. Norbert Gürke was one. He was originally Austrian but had been compelled to flee to Germany because of his Nazi views. He has been described as the author of one of “the crassest expressions of National Socialism,” a book on the influence of Jewish writers on international law. More substantively, he gave the racial theory of international law its definitive legal exposition in 1935 in a book entitled Volk und Völkerrecht (Race and International Law). Another prominent Nazi writer was Gustav Adolf Walz. Walz even received a degree of international respectability by being invited to lecture at The Hague Academy in 1937—not, however, on Nazi theories of law but on the far more anodyne topic of the relation between national and international law. The Nazi writers did not maintain that the various racial groups were international persons in the legal sense. They did posit, though, that racial characteristics provided the key to a deeper understanding of present— and future—political and legal relationships. Gürke, for example, contended that the racial foundations of societies led to the formation of specific state forms and ultimately to specific expressions of international law. Jews and Bolsheviks, he concluded, must be seen as altogether outside the international legal order. In this regard, Nazi writers had certain affi nities with solidarist or sociolog ical writers, in their insistence that international law does not have an independent existence of its own, but instead is a product of other forces. There was a stress on the dynamic and everchanging character of international society, also a feature of solidarism. International law, it was insisted, must reflect these changes. As such, it must be closely tied to the facts and situations confronting it. Th is attitude led Nazi writers to be strongly hostile to the Vienna School, with its abstract and normative character, so far removed from the visceral emotions of the common folk. (Kelsen became an early target of the Nazis when they took power.) In both Italian fascism and German Nazism, there was a pronounced militaristic strain. In terms of legal thought, it took the somewhat vague form of an entitlement of peoples to resources. If a nation was to be truly self-sufficient, as the Italian fascist government dreamed, then it naturally had to have a sufficient resource base at its disposal. In broadly similar terms, Germans were held to be entitled to sufficient territory to live out

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their full destiny as a superior Volk. This line of thought culminated in ideas of “vital space” (spazio vitale) in Italy and Lebensraum (“living space”) in Germany. Neither the German nor the Italian government, however, was in any great need of learned lawyers to justify their aggressive foreign policies. One of the more immediate, and down-to-earth, tasks of the Nazis after taking power was to purge international-law writers whose opinions were incompatible with those of the new order. They were a distinguished group. An early, and prominent, victim was Kelsen at the University of Cologne, who was on the first list of university professors to be dismissed. According to Walz, the Vienna School ideas had been “thought up by some Jewish brain.” Kelsen went to Geneva, where he taught for the next seven years, and then, in 1940, to the United States. After several years at Harvard Law School, he moved to Berkeley’s Department of Political Science and taught there for the remainder of his career. Kelsen was only the first victim of many. Wolfgang Friedmann was dismissed from his post as a judge in a labor court. He made his way to Britain in 1934, took British nationality, and became a barrister and law teacher. He later lived in both Canada and Australia (where he produced the first comprehensive treatise on Australian administrative law), and then subsequently moved on to the United States, where he taught at Columbia Law School. Kaufmann, who had a Jewish background, was removed from his academic posts, although he continued to write (always in French during this period). He left Germany in 1939, first to the Netherlands and then to Britain. Gustav Radbruch, a prominent legal philosopher, also went to Britain. Hans Morgenthau, an eminent lawyer and political scientist (who was Jewish), went initially to Britain and later to the United States. Strupp, also of Jewish ancestry, fled first to Turkey and then to France. He was there in 1940, when he received a welcome job offer from Columbia University in New York, but he died of a heart attack before he could take it up. Schücking, on the bench of the World Court, was fortunately outside the Nazi reach (he died in 1935). But he was removed from his position of director of the Institute for International Law in Kiel (which is now named after him). He was also dismissed from the editorship of the Zeitschrift für Völkerrecht (and replaced by Walz). On the whole, in international law, as in so many fields, the Nazi policies provided great intellectual enrichment to the countries that

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played host to these eminent refugees. But much suffering was inflicted in the process.

Desperate Times In the 1930s, the League of Nations unraveled. An early casualty was the minority protection system. It had never worked very satisfactorily at the best of times—and these were far from the best of times. The German-Polish bilateral treaty on Upper Silesia of 1922 had been concluded only for a fifteen-year duration, and there was no surprise when, in 1937, it was allowed quietly to die off without even an attempt at renewal. There was, however, considerable surprise—and consternation—when the Polish government, in 1934, dramatically announced the repudiation of its minorities treaty with the League. Minority protection by the League, it protested, had been “applied in an abusive manner,” as an instrument of political pressure. There were dramatic failures, too, in the realm of collective security, with the Japanese takeover of Manchuria in 1931 and the Italian conquest of Ethiopia in 1935–36. One of the consequences of these setbacks was a general loss of confidence in collective security as a bulwark against aggression. This was manifested in several ways. Prime Minister Neville Chamberlain of Britain candidly informed the British House of Commons in February 1938 that the League was “unable to provide collective security for anybody” and that, as a consequence, the obligation to impose economic sanctions against aggressors in the League Covenant was no longer operative. In this same vein, there was a tendency for states that had previously been neutral to reassert that status as a substitute for the unfulfilled promise of the League. The Swiss government announced that it was reverting, “by an instinct of self-preservation, to its full traditional neutrality.” Belgium similarly secured its release from various collective security commitments and resumed its former status as a neutral state. In legal circles, too, there were assertions that the League Covenant had been amended de facto, if not formally—that is, by way of state practice—so as to abrogate the (supposedly) automatic provisions for mutual guarantee and sanctions.

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The Debate over Sanctions and Coercion In the international-law realm, liberalism was the principal victim of the events of the 1930s, since it was the school of thought in which collective security played the most central role. It was also the school of thought that was most strongly committed to minority protection. Throughout the League’s existence, there had been principled opposition to collective security ideas. But in the febrile atmosphere of the 1930s, it moved into an attack mode. An early assailant, interestingly, was John Bassett Moore. After stepping down from the World Court bench in 1928, he took on the role of a controversialist and public polemicist. In “An Appeal to Reason” in the journal Foreign Affairs in 1933, he launched a frontal assault on the very conception of collective security. He decried what he called the “new psychology” behind it, contemptuously asserting that the idea had “no visible moorings on earth or in the sky.” He insisted that the notion was based on “a fundamental misconception of the nature and function of all law, whether national or international.” He voiced contempt for “shallow dupes” who urge states to “blindly don an imported livery of ‘world ser vice,’ to be paid for on demand, in unestimated installments of blood and treasure.” Moore was joined in this campaign by a former student, Edwin M. Borchard, a professor at Yale Law School. He echoed Moore in denouncing the very idea of collective security as “doctrinaire . . . political theology.” It was far better, he insisted, to rely on traditional international law, which was “founded on practical experience of human affairs.” He condemned collective security policy as being “promotive of confl ict,” and asserted that “[t]he very notion of coercion . . . destroys that trust and confidence and willingness to co-operate” that are essential for stable international life. The more effective tool for keeping international peace, he insisted, is traditional neutrality—keeping as many states as possible out of war whenever a confl ict erupts. Collective security entailed precisely the opposite strategy—drawing as many states as possible into any and every confl ict—which Borchard asserted was fundamentally wrongheaded. He favorably contrasted the law of neutrality, built on “the solid foundations of the past,” with the law enforcement and policing approach of collective security.

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Further attacks on collective security were launched by a new school of thought in the field of international relations known as realism. The realists were in conscious opposition to earlier international-relations writers who had been strong supporters of collective security in general and the League in particular. They insisted on states as the fundamental units of international life, and on competition for power as the principal dynamic of interstate relations. A general skepticism about the rule of law in interstate affairs pervaded their writing. In the spirit of Austin, they tended to regard international law as a dreamy, utopian system having little impact on real life. Their outlook was summed up by the British historian E. H. Carr, with characteristic crispness. “[U]topians,” Carr pronounced (referring to liberals), “think in terms of ethics, and realists . . . think in terms of power.” A close affinity is discernible between realism and the empirical version of positivism. Both were strongly state-centered, resolutely non- (and even anti-) utopian, and firmly insistent on state practice as the basis of sound knowledge and analysis. The closeness of the connection between the two was most strongly evident in the writing of a German émigré named Georg Schwarzenberger. In the Nazi period, his status as a Jew and his activism in Social Democratic politics combined to bring an early end to a promising academic career. He moved to Britain in 1934 and, four years later, obtained a teaching post in the law faculty of University College, London. Like Quincy Wright, Schwarzenberger worked in both international law and international relations. As an international-relations scholar, he was a realist, condemning what he termed the “radical incompatibilities between the [League] Covenant and political reality.” As a lawyer, he was a stalwart positivist of the empirical stripe. He insisted that international law must be rooted in the actual practices of states, and not in idealistic notions about how states should behave. The liberal camp did its best to repel these various attacks. In the United States, Wright led the defense of collective security, chiefly in a series of debates over neutrality policy that took place in the early 1930s in the American Society of International Law. In Britain, Lauterpacht and McNair did the same, in the face of Schwarzenberger’s positivist and realist stance. At the League itself, Wellington Koo, representing China, was a tireless advocate of effective international sanctions against aggressor states (with his country having an all too obvious stake in the debate). This included a force-

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ful rebuttal of Chamberlain’s statement on the nonobligatory character of sanctions.

Experimenting The soul-searching over the nature of the League’s role—and, by extension, of the nature of international law itself—did not, by any means, put a stop to new thinking. One legal innovation resulted from Japan’s invasion of Manchuria in 1931. In January 1932, American Secretary of State Henry Stimson (who was also a prominent lawyer) announced that his country would not recognize as lawful any situation that was created by a use of armed force. What was especially interesting about this initiative from the legal standpoint was that it invoked the Pact of Paris as a justification—thereby suggesting the possibility of, so to speak, “grafting” sanctions onto the pact that had not been envisaged at the time of drafting. The effect was that Manchukuo— the Japanese-backed state that emerged as a result of the intervention—would not be treated as an independent country but instead as a mere puppet government. Shortly afterward, the Assembly and Council of the League of Nations echoed this “Stimson Doctrine,” as it soon became known. The following year, the Western Hemisphere states followed suit. The Stimson Doctrine also won the support of the International Law Association in 1934, by way of interpretation of the Pact of Paris. But the association went beyond nonrecognition to suggest the addition of another sanction: the dispensing of neutral states from their normal duty of impartiality in cases of aggressive war. On the association’s interpretation, third states were entitled—by implicit interpretation of the Pact of Paris—to show partiality toward victim states. There were misgivings about an attempt to tamper with the law of neutrality in this way. Lauterpacht, for example, contended that this was no mere matter of interpretation of the pact, but an attempt to add to it a sanction that simply was not there. It was not long before this upgraded interpretation of the pact was put to practical use. The United States employed it on a massive scale in favor of the Allied side in 1939–41, after the outbreak of the Second World War. Instead of a policy of traditional neutrality, the American government opted instead for what came to be called, somewhat euphemistically, “nonbelligerency.” That meant the open and large-scale provision of arms and

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other assistance to the Allied side—turning the United States, in President Roosevelt’s proud boast, into “the arsenal of democracy.” The legal case for the “non-belligerency” policy was presented by Attorney General Robert H. Jackson (soon to be appointed to the American Supreme Court). In an address to the Inter-American Bar Association in 1941, he defended his government’s policy by invoking the Pact of Paris. Germany’s violation of the pact, Jackson asserted, justified the United States in responding with a policy of “discriminating, qualified neutrality” in place of the traditional kind—effectively as a sanction against Germany for its lawless conduct. In support of this argument, he invoked the Budapest Articles of Interpretation. Jackson even maintained that the “non-belligerency” policy actually marked “a return to earlier and more healthy precepts,” that is,  to the spirit of prepositivist just-war thought, which he also expressly invoked. Support for this “non-belligerency” policy was predictably firm from lawyers in the liberal camp—with assistance for the Allied side substituted for erstwhile support for the now-moribund League of Nations. Predictable, too, was the role of Wright as the most eloquent spokesman. The very notion of a “community of nations,” he insisted, militated against traditional neutrality and impartiality in the present grave crisis. Opposition to the “nonbelligerency” policy, however, was vigorous. Borchard denounced it as a straightforward violation of the law of neutrality, with its fundamental requirements of abstention and impartiality. The argument on this subject abruptly vanished in December 1941, when the attack by Japan on Pearl Harbor brought the United States into the conflict as a full participant in the wartime alliance. That alliance was given the official name of “United Nations.” It was also decided—or at least hoped— that the nations in the alliance would remain united after the guns were silenced. The Allied states, under the ever-watchful leadership of the major powers, would then proceed not merely to win a war but also to make a new world in its wake. This second task proved, in many instructive ways, to be at least as challenging as the first.

chapter ten

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ne of the more colorful salutes to the rule of law in international affairs appeared in the February 7, 1940, issue of Look magazine in the United States. Superman, the famous comic book action hero, is shown valiantly capturing both Adolf Hitler and Josef Stalin. As he flies through the air with the two rulers (literally) in hand, a terrified Hitler inquires anxiously of their fate. “Next stop—Geneva, Switzerland,” announces the Man of Steel. As good as his word, Superman delivers his captives to the League of Nations. There, a judicial-looking figure (i.e., an aged white man in black garb seated behind a high bench with a gavel on it) solemnly pronounces the chastened ex-leaders to be “guilty of modern history’s greatest crime— unprovoked aggression against defenseless countries.” Superman observes from the background—suitably deferential before the rule of law. Strength was at the service of justice. Before too long, life came passably close to imitating “art.” In 1946, the leaders of Nazi Germany were placed on trial—though Hitler was deceased at the time, and Stalin had the good fortune to be numbered among the victors. No immigrants from the planet Krypton were present at the Nuremberg Trials (or at least not recorded). But there was a vivid display of superpowers—of a sort—at work. This was the power of international law to override, in effect, the laws of individual nation-states and to deliver national leaders of the highest rank to the hangman. The efficacy of international law has often been doubted, but the twenty-one defendants at Nuremberg felt its hand very heavily upon them. International law in the post–World War II era was, in short, off to a spectacular start. But the momentum was not sustained. A Cold War between

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ideological blocs reduced the collective security machinery of the United Nations (UN)—the replacement of the League of Nations—to ineffectiveness. Bright hopes for major advances in international criminal law and the law of human rights were soon dimmed. The new version of the World Court had little business and even less impact on the conduct of states. Nor were arbitrations between states much in evidence. The immediate postwar decades, while vibrant ones in so many ways, were not, on the whole, a glorious period for international law.

Retribution and Hope The atmosphere of the early postwar period was one of frantic innovation, with the UN as only one of many international organizations established to bring order to the world. The International Labor Organization, which had largely fallen into disuse, was relaunched. For assisting with world economic matters, two bodies were established at a conference in Bretton Woods, New Hampshire, in 1944: the International Monetary Fund (IMF) and the World Bank (officially, the International Bank for Reconstruction and Development). At a conference held in Havana in 1947, provision was made for an International Trade Organization. At the UN, plans were put forward for international control of the remarkable new technology known as atomic energy. International solidarity appeared to be in the very air. As one historian put it, “[i]nternationalism was the thing to do, and everyone was doing it.” These were especially exhilarating days for international lawyers of the liberal persuasion. The dream of effective collective security was now resuscitated, with the defective League of Nations to be replaced by (it was hoped) the new and improved system of the UN. If nothing else, both of the major world powers were (apparently) firmly committed to the idea. In addition, one of the major concerns of nineteenth-century liberalism—the rights of individuals—was now given a higher priority than ever before. This program had both a negative and a positive face: negative in the form of the criminal prosecution of those who committed atrocities, and positive in the form of the establishment of legal safeguards for ordinary people. The realization gradually set in, however, that progress in the real world would fall dispiritingly short of ambition.

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Putting Evil on Trial As at the end of the First World War, there were scores to be settled. It will be recalled that, after that earlier confl ict, it had been decided that the planning of aggressive war was not a criminal offense in international law. The state waging the war would be liable—but that meant civil liability, leading to the payment of compensation by the state. International law, it was concluded, had no provision for individual criminal liability on the part of the political leaders. That was then. It was going to be different now. Largely at the instigation of the American government—with Henry Stimson, now serving as secretary of war, as the leading figure—it was decided to mount a full-fledged judicial trial of the German (and later the Japanese) leadership, in the full light of the global press and public. Support for this initiative was far from unanimous. The Soviet government favored swift summary punishment. The French lawyer André Gros, a professor of international law at the Sorbonne (and future World Court judge), was another voice in opposition. He pointedly reminded the Americans of their own opposition to just such a proceeding at the conclusion of the First World War. Despite these objections, an International Military Tribunal, as it was officially entitled, was created by way of a treaty among the four powers occupying Germany (the United States, the Soviet Union, Britain, and France), in August 1945. Three sets of charges were agreed. One was war crimes (i.e., violations of the laws of war, such as breaches of the Hague Rules). A second category was labeled “crimes against humanity.” The expression had been employed in 1915 by the Allied governments in denouncing Turkey for the Armenian massacres. But Hersch Lauterpacht suggested employing it as a technical term for a criminal offense. It referred basically to atrocities against civilian populations. The third set of charges was given the label “crimes against the peace,” a phrase coined by the Soviet law professor A. N. Trainin. This meant, in essence, the planning of aggressive war prior to the actual outbreak of it. The chief prosecutor was American Supreme Court Justice Robert Jackson. He was not an international-law specialist, but some prominent international lawyers played subordinate parts in the drama. Kelsen, now based

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in the United States, did some preparatory work for the trial by serving as legal adviser to the United Nations War Crimes Commission in Washington. Quincy Wright served on the American prosecution team at the trials. Lauterpacht (whose Polish relatives had been exterminated in the war) did some preliminary work for the prosecution as a member of the British War Crimes Executive in 1945– 46, and also attended the trials. Schwarzenberger declined to work for the trials, on the ground that a victim of Nazi activities should not act as a judge (relatives of his had been killed during the war). Jackson’s principal interest was in the charge of crimes against the peace. The legal basis of it was Germany’s egregious violations of the Pact of Paris— even though the pact did not contain any statement of individual criminal responsibility. In the unfolding of the proceedings, little attention was given to crimes against humanity, which were treated in effect as an extension of war crimes. In the final judgment in October 1946, nineteen of the twentytwo defendants were convicted on one or more counts. (On crimes against the peace, there were twelve convictions and four acquittals; on war crimes, sixteen convictions and two acquittals; and on crimes against humanity, sixteen convictions and two acquittals.) Twelve were sentenced to hang. One of the defenses advanced was that there was no such thing as crimes against the peace in international law. The tribunal ruled, however, that the Pact of Paris had the effect of creating a criminal offense of planning aggressive war, even if only implicitly. The pact therefore stands as a shining example of a legal initiative producing a consequence that was utterly unforeseen by its drafters at the time of making. Even though it contained no explicit provision on criminality, the pact was nonetheless held, in the somewhat vague wording of the judgment, to “involve” the proposition that “those who plan and wage . . . a war” in violation of its provisions “are committing a crime in so doing.” As a consequence, the planning of aggressive war is “not merely illegal”—that is, is not merely a treaty violation by the state as such— “but is [also] criminal,” entailing the punishment of responsible officials. The tribunal even went on to pronounce aggressive war to be “the supreme international crime.” The tribunal went further yet, by holding that the personal criminal liability of the leaders was actually more fundamental than the civil liability of the state whose governmental apparatus they controlled. In words that

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could have come from the texts of Duguit or Kelsen or Scelle, the tribunal pronounced that “[c]rimes against international law are committed by men, not by abstract entities.” This part of the judgment naturally won Kelsen’s hearty approval. Consistently with his theory that individuals are the true subjects of international law, he asserted that imposing individual criminal responsibility amounted to “a higher degree of justice” than “collective responsibility” imposed onto states. Wright expressed similar approval of this thesis. The effective enforcement of international law, he contended, required the imposition of sanctions against individuals as well as states, even though this “necessarily makes inroads onto national sovereignty.” He also expressed his support for a larger implication of this principle: that it “tends to change the foundation of the international community from a balance of power among sovereign states to a universal federation directly controlling individuals in all countries.” An International Military Tribunal for the Far East was established in 1946, not by means of a multilateral treaty as in the German case, but by proclamation of the American occupation authorities in Japan. Crimes against humanity were not, in this case, among the charges. Instead, various counts of murder were alleged, along with aggression and war crimes. Twenty-eight persons were indicted in all. But there was one highly conspicuous absence from the dock: Emperor Hirohito. The American authorities elected, as a policy choice, not to indict him, in the interest of maintaining social harmony in Japan during the occupation period. The proceedings in Tokyo differed from those in Nuremberg in a number of ways. For one thing, the bench was larger, comprising judges from eleven Allied countries (as opposed to only four at Nuremberg). The official judgment of the panel followed the Nuremberg Tribunal in citing the Pact of Paris as the source of the crime of aggression, but there was a great deal more dissension among the judges than there had been at Nuremberg. The French judge, Henri Bernard, regarded the procedural arrangements of the trial as unfair to the defendants, with the result that he favored the acquittal of all of the accused parties. Also favoring acquittal of all the defendants was the Indian judge, Radhabinod Pal. In a dissenting opinion that ran for over six hundred closely printed pages, he disputed the majority’s fi ndings on every possible point, including the criminality of aggressive war.

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The majority of the bench, however, ruled all twenty-eight of the defendants to be guilty of at least one charge. Seven were sentenced to hang. The various sentences of imprisonment proved to be less severe than they appeared when handed down. All of the surviving prisoners who received life sentences were released on parole by the postoccupation Japanese government in 1954–56. One of the convicted defendants—Shigemitsu Mamoru, the former foreign minister—reentered politics and even served another stint as foreign minister.

A New World Parliament The League of Nations maintained a vestigial existence throughout the Second World War, finally being officially wound up in 1946. By that time, it had been supplanted by the UN, whose charter was approved in San Francisco in April 1945. This new organization was, in essence, a continuation into peacetime of the wartime alliance (officially known as the “United Nations”). A principal change from the League system was that collective security was now placed onto a political rather than a legal basis. Instead of an automatic duty of states to support one another in the face of aggression, as provided in the League Covenant, decisions on collective action were to be taken by a political body—the Security Council—on an ad hoc basis. The Security Council, originally comprising nine states, had five permanent members (the United States, the Soviet Union, Britain, France, and China)— each with a veto power over substantive decisions. One of the most important differences between the UN and the League was that the UN Charter contained—as the League Covenant conspicuously did not—a general prohibition against the use of force by states. The resort to armed force was not merely confi ned within procedural barriers, as in the League system, but was outright prohibited in principle, as in the Pact of Paris. In one important respect, though, the UN Charter went even beyond the pact: it prohibited “the threat or use of force” in general, and not merely the resort to “war.” It has therefore been generally accepted that forcible reprisals fall within the scope of the UN Charter’s prohibition (a point confi rmed by the World Court in 1996). The charter also differed from the pact in making explicit allowance for armed force in self-defense.

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Certain features of the League were reproduced in the UN, though often in somewhat altered form. One example was the requirement for registration of treaties. Under the League Covenant, unregistered treaties had been stated to be not legally binding. The UN Charter was less draconian. An unregistered treaty would still be legally binding, but the parties to it were barred from invoking it before any UN organ (such as the World Court). Finally, it may be noted that a new World Court was established, known formally as the International Court of Justice (I.C.J.). This new Court was virtually identical in its arrangement and operations to the now-defunct P.C.I.J.—to the point that the single expression “World Court” can safely be used to refer to both of them as if they were a single continuing entity. The transition between them was as smooth as possible. In January 1946, all of the judges of the P.C.I.J. resigned. Most were then swiftly elected onto the new Court. But several new judges were needed, due to retirements (for example, of Anzilotti and Bustamante). There were some notable figures among these, including Álvarez from Chile and McNair from Britain. Serge Krylov, from the Soviet Union, brought a socialist presence onto the bench for the first time. Some new ground was broken in the area of codification of international law. One of the tasks explicitly assigned by the UN Charter to the UN General Assembly (a body comprising all of the member states of the organization) was to encourage “the progressive development of international law and its codification.” To this end, the General Assembly duly established a body called the International Law Commission (I.L.C.) in 1947. Its members were not states, but individual experts in the field of international law, elected by the General Assembly. Among the early members were a number of prominent figures, including Scelle, Brierly, Lauterpacht, and Hudson. (Verdross served on it later, as did Krylov.) It has held one session a year since its establishment, functioning as a sort of combination of a “think tank” and a legislative drafting body. It operates far below the level of general public attention—and is perhaps all the more effective for that.

From Hope to Paralysis The establishment of the UN in 1945 was not accompanied by anything like the euphoria that had greeted the founding of the League of Nations after

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the First World War. The painful memories of the League’s failures saw to that. Still, there were hopes that the UN might take effective steps to cement the gains that had been made, and to ensure that the tragedies of the past would not be repeated. In no areas were these hopes more earnest than in human-rights law and international criminal law. Activity in both of these areas was soon under way. The initial fruits were two initiatives that were brought before the UN General Assembly on successive days in December 1948. The first was an international convention that created a new international crime: genocide. The word “genocide” (meaning the killing of a people) was a new coinage of the 1940s, by a Polish lawyer named Raphael Lemkin. State that became parties to this convention pledged themselves to “prevent and punish” this new kind of horror. The following day came the assembly’s adoption of the Universal Declaration of Human Rights. Its drafters included Eleanor Roosevelt, a member of the American delegation to the UN; the French lawyer (and future Nobel Peace Prize winner) René Cassin, who had been a wartime legal adviser to Charles de Gaulle; and the Canadian lawyer John P. Humphrey, who took the lead part in the drafting. The declaration contained a list of fundamental civil and political liberties, such as liberty of expression, of association, of religion, and so forth. It was not a treaty as the Genocide Convention was, but merely a resolution of the UN General Assembly. That meant, crucially, that the declaration was not legally binding. It was merely an agreed statement of worthy aspirations. At this same time, work was getting under way in the I.L.C. to create a permanently existing international criminal tribunal, comparable to those of Nuremberg and Tokyo, to deal with future international miscreants. The most immediate task, the commission decided, was the drafting of a written international criminal code for the tribunal to apply. By 1954, it had produced a draft, containing twelve crimes, including war crimes and various aggression-related acts, plus genocide and crimes against humanity. Two other early postwar human-rights initiatives may be briefly noted. In 1949, a thoroughgoing updating of the Geneva Conventions was completed. Under the auspices of the International Committee of the Red Cross, a set of four new Geneva Conventions was concluded in 1949. Three of these were updates, with only modest revision, of prewar provisions—on the protec-

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tion of wounded and sick soldiers in land and maritime warfare and of prisoners of war. The fourth convention, however, was an innovation. It was devoted to the protection of civilian victims of war, chiefly to civilian populations of occupied territories (effectively replacing and expanding the Hague Rules on that subject). Action in favor of refugees followed shortly after this. In 1951, under UN auspices, a Convention on the Status of Refugees was concluded, which remains one of the foremost legal initiatives in the human-rights sphere. It provided a legal definition of refugee—basically, a person who is in a foreign country, and who has a “well-founded fear of persecution” by his home country. What the convention pointedly did not grant was an actual right of refugees to admission to any country. It merely provided for their humane treatment (including nonreturn to the home country) once they were actually in a foreign state. In large part, the hopes of the early postwar period went unfulfilled. Consider, for example, the fate of the plan to establish an international criminal court. Although, as noted, a draft code of crimes was adopted by the I.L.C. in 1954, the project lost momentum, largely because of the difficulty of crafting a legal definition of the crime of aggression. That same year, the UN General Assembly decided to discontinue further work in the area until that gap was filled. That did not occur until 1974—and even then, the criminal court project continued to languish. There was also a worrying absence of urgency on the human-rights front. Some human-rights activists had been disappointed at the legally secondrate—that is, nonbinding—status of the Universal Declaration. Lauterpacht was one of them. He expressed a fear that a nonbinding declaration “would probably constitute a retrogressive event.” Human rights, in his opinion, urgently needed to be fi rmly placed on “the plane of positive law,” where it could be backed by effective legal sanctions. Work shortly began on the drafting of a legally binding treaty on human rights, but it proved to be an agonizingly slow process, not completed until 1966. There were worrying indications, too, of a lack of commitment to human rights on the part of the major powers. It was not surprising that the Soviet government, with its Stalinist heritage, was less than energetic in either the promotion or the protection of human rights—even as it ardently championed the rights of states. More surprising was the loss of interest in the

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United States, as objections began to surface over the country’s adherence to human-rights treaties. The American Bar Association opposed ratification of the Genocide Convention because of the possibility that Americans could be subjected to trials by a foreign court. Conservative political groups were worried that American adherence to international human-rights treaties would pave the way for foreign interventions of various kinds into domestic affairs. In the face of this mounting opposition to international humanrights action, Secretary of State John Foster Dulles, in 1953, gave explicit assurance to the U.S. Congress that his government would not seek the ratification of human-rights treaties. The American policy, Dulles stated, was to promote human rights by “methods of persuasion, education, and example rather than [by] formal undertakings.”

International Law in a Cold War Climate It was the Cold War, more than any other development, that ensured that the heady atmosphere of postwar optimism would be dispiritingly short in duration. One of the most conspicuous signs of the new atmosphere was the paralysis of the UN Security Council, where the five permanent member states all had a veto power. Liberal exercise of that prerogative by the Soviet Union reduced the body largely to impotence. The one outstanding exception was the crisis in Korea in 1950, when the Security Council mobilized world support for South Korea against invasion from North Korea—though it was able to do so only because the Soviet government happened to be boycotting the council’s sessions at the time (as a protest over the failure of the UN to grant China’s seat at the UN to the newly installed Communist government of mainland China). The frequent use of the veto by the Soviet Union was widely resented by UN members (who, at this time, were heavily Western in orientation). In 1949, the General Assembly appealed to the major powers to refrain from “excessive use of the veto.” But this pious exhortation had no practical effect. Within the international legal profession, the Cold War was much less in evidence than it was in the daily headlines. In large part, this was because socialist international lawyers did not advance a distinct version of international law, but were essentially orthodox mainstream positivists. There

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were, however, some signs of ill temper even in these staid circles. In 1951, Korovin ostentatiously resigned from the American Society of International Law, accusing it of turning the American Journal of International Law into “a vehicle of slanderous misrepresentation” of the Soviet Union and “an instrument for kindling hostility between states and nations.” Academic journals have seldom been supposed to have so great an impact.

The World Court and the Cold War Attempting to resolve fundamental political disputes through the courts is a hazardous business at best. But persons devoted to the rule of law are constantly minded to attempt it. There were a number of instances of this during the Cold War, especially in the early years. The effect, however, was to demonstrate more the weakness of the World Court than its strength, in the face of deep-seated political rivalry. The clearest demonstration of this was the attempt to enlist the Court’s aid in resolving a long-running dispute about the admission of would-be new member states to the UN. Western governments were reluctant to admit Eastern Eu ropean states into the orga nization on the ground that they were mere puppet states of the Soviet Union. As such, their only role would be to increase the voting power of the Soviet Union in the General Assembly. The Soviet Union struck back by opposing the entry of Westernoriented countries such as Japan. As the years passed, the number of states “stacking up” for membership grew ever higher. An obvious compromise solution was a “package deal,” whereby all of the waiting states would be brought in, with the effect of keeping the overall balance more or less constant. Both the American and the socialist-state governments supported this. In 1947, the General Assembly voted to seek an advisory opinion from the World Court on the question of criteria for admission. In a controversial decision the following year, the Court held that it is not legally permissible for member states to add political criteria to the legal ones stated in the charter. That meant, in effect, that states had a legal right to be admitted to the organization. The Court also expressly stated that a package deal, of the kind envisaged, would not be lawful. Far from solving the problem, the Court’s opinion may actually have made it worse because governments that

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resisted the package deal proposal could now claim to have international law firmly on their side. Imaginative suggestions for breaking the logjam were not lacking. The government of Argentina proposed that admission of an applicant state could be effectuated by the General Assembly alone, even if the application had been vetoed in the Security Council—that is, it would suffice that the question of admission had merely been submitted to the Security Council and decided upon by it, even if negatively. Another proposal, put forward by the Peruvian government, was to regard questions of admission of new members as procedural, rather than substantive, issues—with the result that the veto power would not apply. The World Court, however, in another advisory opinion, ruled these proposals out. The UN Charter, it pronounced, requires an affirmative vote by both bodies for admission. The impasse was eventually broken when, notwithstanding the Court’s stricture, the package deal solution was adopted in 1955. Exhaustion had won out over principle, and the UN experienced a great upward jump in its membership. The crisis was resolved, but largely by setting the legal considerations quietly aside. Another attempt to enlist the aid of the World Court in Cold War disputes, this time over three of the post–World War II peace treaties, was, if anything, even more anticlimactic. The Western governments accused three socialist countries (Romania, Bulgaria, and Hungary) of breaching provisions of their respective peace treaties that required respect for human rights. The treaties contained dispute-settlement mechanisms in the form of the establishment of arbitral panels, to which the parties to a dispute would name representatives. The three governments sought to derail the process by refusing to appoint representatives—thereby preventing the formation of the panels. The Western governments then proposed that the secretary-general of the UN make the appointments in their place. When the three governments objected, the General Assembly requested an advisory opinion from the World Court as to whether it would be lawful to proceed with that alternative mechanism. The Court’s response, handed down in an advisory opinion in 1950, was negative. It held that the treaties set out the only obligatory means of dispute settlement. If that sole procedure cannot be carried out—even if the cause is a deliberate refusal of countries to cooperate—then an alternative mechanism cannot be substituted. The General Assembly (which had a

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Western majority) reacted sourly to this development. But there was little that it could do, beyond condemning the three states for their “willful refusal” to cooperate and denouncing them for being “callously indifferent to the sentiments of the world community.”  On other occasions, proposals to involve the World Court in Cold War questions failed to receive support. One of these was an attempt by the Cuban government, supported by the socialist countries, to overturn that country’s exclusion from the Organization of American States (OAS), which occurred in 1962. The Cuban government contended that the exclusion amounted to “enforcement action” against it—and that this was illegal, since the taking of enforcement action is reserved, by the UN Charter, to the UN Security Council. In March 1962, a Cuban proposal that the Security Council seek an advisory opinion from the Court on the question was defeated in the council in a vote on more or less straight Cold War lines.

New Legal Doctrines for the Cold War Era In certain respects, the Cold War elicited a degree of legal creativity on the doctrinal front. From both sides of the Iron Curtain came proposed modifications of traditional international-law doctrines, most notably regarding the use of force. The socialist side produced the Brezhnev Doctrine, enunciated in 1968. From the United States, in the 1980s, came the Reagan Doctrine. These two doctrines bore an interesting resemblance to one another in that both of them proposed important limitations on state sovereignty, along with justifications for armed intervention. The Brezhnev Doctrine (named for Soviet General Secretary Leonid Brezhnev) was enunciated in an article in Pravda in 1968, written by a lawyer named Sergei Kovalev (who is not to be confused with a prominent later dissident of that same name). This was in the immediate wake of the Soviet Union’s armed intervention in Czechoslovak ia to keep that country firmly within the Soviet sphere of influence. The intellectual roots of the doctrine were laid earlier, however, in a post-1945 revival of Korovin’s ideas, dating from the interwar period, of a distinctive socialist international law, existing (somehow) alongside the traditional international law of the capitalist states. The idea had fallen into disfavor in the 1930s. But the atmosphere was now much more auspicious, since there were several socialist countries

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in the world, in place of the single isolated one of the past. This meant that the way was now open for holding that relations between the socialist states inter se were governed by a new and distinctive kind of international law. One of those advancing this “new” line of thought was Korovin himself— who should merit the sobriquet of “the Great Survivor” of socialist law. He brought his turbulent career to a comfortable end as professor of international law at Moscow University in the late 1950s and early 1960s. The principal champion of this revived and updated version of a distinctively socialist international law was Grigory Tunkin. He held professorships of international law, first at the Institute of State and Law and then at the University of Moscow. Like Martens, he combined this academic work with the post of legal adviser to the Soviet foreign ministry. The basic idea was that relations between the socialist states were fundamentally different in character from those between socialist and capitalist countries. The law governing relations within the socialist world was characterized in clearly solidarist terms. (For relations with the capitalist states, as will be seen, a firmly positivist philosophy prevailed.) The Brezhnev Doctrine supported, and exemplified, this thesis—with important support from Tunkin. Kovalev’s 1968 Pravda article forthrightly rejected “small-nation narrowmindedness, seclusion and isolation” and insisted instead on the need to “subordinate the particular to the general interest.” Similarly in the solidarist spirit was the assertion that “each Communist party is responsible not only to its own people, but also to all the socialist countries, to the entire Communist movement.” There was a warning that “[t]he weakening of any links in the world system of socialism directly affects all the socialist countries,” coupled with an insistence that “[f]ormally juridical reasoning” must not be allowed to obscure the social realities of class conflict. One feature of solidarist thought that was especially evident in the Brezhnev Doctrine was a discarding of absolutist theories of sovereignty and their replacement with a tolerance for intervention in the overall interest of a larger community. The Pravda statement asserted, in this spirit, the existence of a new kind of right of self-defense—not of individual, isolated nation-states, but rather of the over-all “social system” of socialism. When that system was threatened in any state where it was established, then “abstractly understood sovereignty” could not be permitted to stand in the way of forceful action. The Soviet military intervention was therefore justified as a discharging of the So-

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viet Union’s “internationalist duty” to the people of Czechoslovakia, in the interest of safeguarding that people’s “own socialist gains.” Kovalev contrasted counterfeit self-determination (as it might be described) with true “socialist self-determination.” What was envisaged was a sort of mutual-guarantee idea, in which it was seen as the duty of each state within the socialist bloc to ensure that each of its fellow members was able effectively to exercise its sovereign right to institute socialist principles within its society. If necessary—as it was now claimed to be—that mutual guarantee could involve armed action. The Reagan Doctrine in the United States also provided a justification for armed intervention. In fact, it was candidly described by Reagan’s Secretary of State George P. Shultz as the “opposite number” to the Brezhnev Doctrine. There were some differences, though. Where the Brezhnev Doctrine authorized force against like-minded states, the Reagan Doctrine concerned armed action against countries of differing persuasions. It was, in essence, a neo-just-war doctrine, asserting what its supporters characterized as “the moral legitimacy of U.S. support—including military support—for insurgencies under certain circumstances.” Those circumstances were two: first, that the country concerned was being ruled, in undemocratic fashion, with material support from the socialist bloc; and, second, that an indigenous insurgency was in existence struggling against that government. When those two conditions were fulfilled, the United States was stated to be justified in aiding the insurgent movement. Such assistance was characterized as counterintervention, in response to the socialist support for the government in question. This was distinctly reminiscent of John Stuart Mill’s exception to the otherwise strict principle of nonintervention in the nineteenth century. In all events, supporters of the Reagan Doctrine frankly rejected the principle of “inviolability of sovereignty.” On the whole, it may be said that the Reagan Doctrine was more radical than its Soviet counterpart from the standpoint of international law. This was because the Brezhnev Doctrine was conservative in its effects—that is, having the effect of bolstering established governments against dissidents— whereas the Reagan Doctrine justified support for insurgent groups seeking to overthrow incumbent governments. Like its Soviet counterpart, the Reagan Doctrine was no merely theoretical matter. It was put to use in justifying support for an insurgency in Nicaragua against a socialist-leaning government. The American assistance to these

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insurgents, known as the “contras,” took the form of training (in camps located in Honduras), plus the supply of weapons and intelligence. There were also incidents of direct uses of force, in the form of the mining of Nicaraguan harbors, along with an economic boycott effort. In this case, the government of Nicaragua reacted by bringing a series of claims against the United States in the World Court, thereby opening the way for a judicial pronouncement on the Reagan Doctrine. In its judgment, handed down in 1986, the Court did not make express reference to the Reagan Doctrine as such. But without naming it, the Court held it to “involve a fundamental modification of the customary-law principle of nonintervention.” But it also held that the doctrine was not, in reality, an attempt to propound a new principle of law. The various justifications the United States sometimes gave for interventions on ideological grounds had been, in the Court’s words, “statements of international policy, and not an assertion of rules of existing international law.” It then pronounced, for the record, that there is, in fact, no rule of international law allowing intervention on the grounds put forward by the Reagan Doctrine. The Brezhnev Doctrine was not fortunate (or unfortunate) enough to be subjected to a similar judicial test.

Biding Time The immediate post-1945 decades may have been full of commotion and drama in a number of ways, but the world of international law was an eerily quiet one in many respects. For one thing, the World Court was largely inactive in this period. Time and again, the Court found itself, for one reason or another, unable to resolve disputes. Generally, this was because of bona fide legal technicalities. In addition, governments took greater advantage than they had in the interwar period to place far-reaching reservations in declarations made under the Optional Clause. As a result, the prospect of general acceptance by states of the compulsory jurisdiction of the World Court appeared further away than ever. Even when the Court did make pronouncements, they often had little effect. That was the case, as noted, in the controversy about UN admissions. In addition, a judgment rendered against Albania in 1949, arising out of damage to British vessels caused by mines in the Corfu Channel, went stub-

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bornly unpaid. An advisory opinion in 1950, holding South Africa’s League of Nations mandate over South-West Africa (present-day Namibia) to be still in force, similarly had no practical effect. An advisory opinion in 1962, on the validity of assessments of UN expenses, failed to induce countries that had been withholding assessed contributions to pay them. In 1971, the British government announced that it was “rejecting” an advisory opinion given by the Court on the question of Namibia. Specifically, the British government pronounced the Court to have been wrong on two counts: first, in holding that the UN General Assembly had validly terminated the Republic of South Africa’s mandate over the area; and, second, in ruling that the Security Council had the power to issue mandatory orders to states on nonsecurity-related matters. It is hardly surprising, then, to fi nd that, by the mid-1970s, the Court was flatly being pronounced a failure by prominent observers. On other judicial fronts as well, there were embarrassing silences. Mixed-claims commissions and arbitrations, for example, were very little in evidence. There was nothing like the rich array of international litigation that there had been in the interwar era. At the same time, modest changes were achieved, even if they fell well short of initial hopes. The economic field provides an illustration. The proposed International Trade Organization failed to come into existence, largely because political pressures within the United States prevented that country from ratifying its charter. A portion of the project was salvaged, though, in the form of the General Agreement on Tariffs and Trade (GATT), which had been concluded in 1947 as a sort of advance installment on the ITO. So the GATT simply continued in existence on its own. It fi xed basic norms on trade, oriented toward reducing (or eliminating) quota systems, subsidizing of goods, and other forms of unfair or manipulative trade practices. In addition, several rounds of tariff reductions were successfully negotiated, with the result that trade volume increased steadily in the postwar era. In the human-rights field, too, there was some movement. The international convention was finally completed in 1966—although by then it had become two companion treaties. One was an International Covenant on Civil and Political Rights, with the other on Economic, Social, and Cultural Rights. Even so, it was a further ten years before these conventions attracted enough ratifications to enter into force. The Covenant on Civil and Political Rights did, however, contain two features that would make a major

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impact in the longer term. One was the establishment of a permanent monitoring body (called, somewhat blandly, the Human Rights Committee) to oversee compliance by the states. It was composed of individuals sitting in their personal capacities (in the manner of World Court judges). Most interestingly, an Optional Protocol was appended to the Civil and Political Covenant, in which states allowed individuals to bring claims against them for violation of the covenant before the Human Rights Committee. There even began to be some lessening of Cold War tensions, following the death of Stalin in 1953. From the socialist camp there emerged a new doctrine of peaceful coexistence between the two blocs of states—a program of formal correctness between them, if not exactly of passionate love. This was formally unveiled in 1956 at a conference of the International Law Association—the first gathering of that body to be attended by lawyers from the socialist bloc. It eventually led to a consensus resolution of the UN General Assembly in 1970, known as the Declaration on Friendly Relations, setting out the fundamental principles of post-1945 international law. These included the sovereign equality of states, the prohibition against the use of force, the principle of nonintervention, the duty of peaceful settlement of disputes, and the right of self-determination of peoples. The importance of this declaration has been indicated by its invocation by the World Court in several judgments. Various achievements were possible in technical areas where there was relatively little political clamor. In 1959, for example, the Antarctic Treaty was concluded, leading to the suspension of all territorial claims to the southern continent. It also provided for the complete demilitarization of Antarctica, reserving the area for scientific purposes. In 1967, a multilateral convention regulating outer space activities was completed—although it stopped short of full demilitarization. In 1979, a treaty was concluded specifically relating to the moon, reserving that silvery orb “exclusively for peaceful purposes.” There was also a treaty, concluded in 1968, for the rescue of astronauts.

The International Law Commission The most fruitful—if also least visible—achievements in international law during this period came from the steady and patient work of the Interna-

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tional Law Commission. Its task was the codification of international law— not, however, in the grand sense of producing a single systematic code of the whole of international law in the manner of Bluntschli or Fiore in the previous century, but rather in the more modest sense of codifying selected topic areas within the field. For guidance on what topics to cover, the UN secretariat sought the advice of Lauterpacht. In 1949, he drew up a provisional list of subjects for the commission. It has been noted that the plan to establish an international criminal court did not produce the anticipated effect. Other initiatives, however, fared better. Foremost among them was the drafting of a set of articles on the law of the sea in 1956, with a recommendation that states convene an international conference to consider them. The resulting conference, held in 1958, used the articles as the basis of four conventions on key aspects of the law of the sea: on territorial waters, high seas, fisheries, and continental shelves. These were then widely ratified by states. Th is codification was not, however, comprehensive. The most outstanding matter left unsettled was the width of territorial waters. A follow-up conference of states was held in 1960 to resolve this point, but agreement continued to prove elusive. A second major area of achievement was diplomatic law. In this case, too, the commission produced a set of articles (in 1958). These were then used by governments as the basis for the Vienna Convention on Diplomatic Relations of 1961. One of the most important contributions of this agreement was the fi xing of uniform general rules among states on the delicate subject of diplomatic immunities. The agreed policy was, basically, to grant absolute immunity to persons with diplomatic ranking, but more restricted immunities to ancillary persons such as support staff and family members. The third major achievement of the International Law Commission in this period was to produce a set of articles on the law of treaties in 1966. With these as guidance, a conference of states concluded the Vienna Convention on the Law of Treaties three years later. Many issues regarding treaties were clarified, but just one may be mentioned briefly: reservations to multilateral treaties. The practice had previously been that a state could enter a reservation only if all of the other parties to the treaty consented to it. An advisory opinion of the World Court in 1951 had made an exception to this in the case of treaties for which universal adherence was being sought. The Vienna Convention built on that decision and allowed reservations to

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be freely made, subject to one key condition: that they are not incompatible with the general “object and purpose” of the treaty. Sometimes, the commission produced authoritative statements of existing law, without envisaging their being incorporated into treaties. A set of such articles was produced by the I.L.C. on the subject of most-favorednation clauses in treaties in 1978, with a second part still in progress as of 2013. In addition, a set of articles was agreed in 1999 regarding state succession and nationality. Another noteworthy set of articles, completed in 2006, dealt with rules and principles governing the diplomatic protection of nationals abroad. This was largely the work of the South African and Dutch lawyer John Dugard. Most useful of all was a set of articles concluded in 2001 (after some thirty years of continuous effort) on the subject of state responsibility. The initial work was largely by the Italian lawyer Roberto Ago, of the University of Rome (and later the World Court), with the Australian lawyer James Crawford, professor of law at Cambridge, as the leading figure in the final stages of the drafting. State responsibility is the ultimate in “lawyers’ law” in the international sphere. It comprises the rules and principles that govern determinations of liability in general in international law—the prerequisites for liability, special defenses to be recognized, and legal consequences of breaches of law, including remedies available to victim states. This somewhat arid field of law generated no headlines around the world. But, once the drafting was complete, it became an indispensable operating manual for practicing international lawyers the world over.

Contending Schools The participants in the 1947 session of the Hague Academy of International Law were treated to a rare privilege. They were able to see three prominent international lawyers expounding three distinct schools of thought. Championing the cause of liberalism was Lauterpacht. His topic was the developing international law of human rights. For the cause of mainstream positivism, there was Serge Krylov, the Soviet judge on the World Court. Presenting the solidarist perspective was a Belgian lawyer named Maurice Bourquin, who taught at the Graduate Institute of International Studies in Geneva. His

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specific topic was “Scientific Power and International Law.” As an added bonus, Henri Donnedieu de Vabres, the French judge at the Nuremberg Trials, lectured on the new developments in international criminal law. Speaking generally, it must be said that international legal writing in the post-1945 era did not equal that of the more intellectually heroic ages of the nineteenth century or of the interwar period. It principally continued along lines already marked out. To some extent, this was because the same persons continued to be active as in the prewar period. There was not a transition between generations of lawyers after 1945 to the extent that there had been after the First World War. Lauterpacht, for example, had been active before the war, but he became increasingly prominent afterward as a champion of liberalism—and a leading figure in the profession generally. Manley Hudson also continued on the scene, serving on the I.L.C. Kelsen was still productive after the war, as were Kunz, Verdross, Scelle, Schwarzenberger, and Wright. De Visscher served on the World Court in 1946–52, as did Wellington Koo in 1957–67, and Verdross as a judge on the European Court of Human Rights. There were even two men who had begun their careers prior to 1914 and continued to be active after 1945. One was Álvarez, who was elevated to the World Court after the war. The other was Erich Kaufmann. He returned to Germany after his exile in the Nazi period and became a legal adviser to the West German foreign ministry and also to the chancellor’s office, principally advising on legal aspects of the occupation and partition of Germany. He was now a widely revered elder statesman of the profession. From his early days as a neo-Hegelian, he had made the longest intellectual odyssey of all.

The Continuing Hold of Positivism Positivism was far from dead in the post-1945 world. In fact, it could even be said to have gained renewed strength from the Cold War atmosphere, fortified by the strong support of lawyers from the socialist countries. Starting in force in the 1960s, lawyers from newly independent countries also tended to swell the positivist ranks. Within positivism, some of the fault lines of the past remained evident. The common-will variant had largely faded as a separate school of thought, but the empirical and the voluntarist approaches were still alive. The empirical perspective was little changed from the nineteenth century. In the words

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of Roberto Ago, its hallmark is “a scientifically objective examination of empirical reality.” The primary focus remained, now as then, on customary law. Ian Brownlie, a professor at Oxford and experienced practitioner before international tribunals, frankly pronounced customary law to be “for all practical purposes identical” to general international law. Also evident was the empiricist’s bluff disdain for theory, which, in Brownlie’s opinion, “provides no real benefits and frequently obscures the more interesting questions.” To discern what the law is, he maintained, the surest guide is an “examination of the vast array of evidence” of state practice. Perhaps the most forthright spokesman for the empirical viewpoint was Schwarzenberger, in a 1965 book entitled (fittingly enough) The Inductive Approach to International Law. In it, he expressed the strong hostility of the empiricist to rationalistic, à priori methods in international law, insisting instead that international law must be regarded as “an empirical device” and not as “an exercise in logic.” Hypothetico-deductive approaches to international law were dismissed as “a beautiful spiral in the air, coming from nowhere and disappearing in the clouds.” For “[s]peculation, intuition and other brainwaves,” he had only scorn. State practice, contended Schwarzenberger, is the sole source of legal rules. International law, in his view, comprises “the sum total of the rules actually considered law by the subjects of international law.” He forthrightly rejected any attempt to propound broad principles “abstracted from such rules.” Such searches for general principles underlying specific rules amount to lawmaking by courts and commentators, to which he was resolutely opposed. He bluntly denounced the use of “legal conceptualism (Begriffsjurisprudenz)” as a basis for “surreptitious law-making.” Deduction from principles was acceptable, in his opinion, only as a teaching device or as a classification tool. He compared principles to labels on bottles in a chemist’s shop, insisting on a sharp distinction between the labels on the bottles and the contents (i.e., the actual rules of law). Supposed principles are in fact merely convenient labels, he argued, not themselves legally binding. Consequently, they must not be employed as devices for the creation of new rules of law in the absence of actual consent by states. The urgent need in international legal scholarship, Schwarzenberger held, is for systematic study of state practice, with the goal of obtaining a substantial body of solid evidence as to what rules have actually been accepted by states, as evidenced by their practice.

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The voluntarist version of positivism was similarly in rude health after 1945, although the expression was now used rather loosely—basically to mean the thesis that international law is based entirely on the freely given consent of the states of the world. It remained the case, as it had in the nineteenth century, that the two versions of positivism were allies more than foes, since both of them agreed on the fundamental importance of state consent as the basis of international law. They differed chiefly in how best to determine the presence of that consent—whether in observation of state practice (the empiricists) or in a firmer insistence on evidence of actual expressions of state will (the voluntarists). The ethos of the voluntarist version of positivism was instructively evident in the writing of the Italian writer Gaetano Arangio-Ruiz. He taught international law at the Universities of Padua, Bologna, and Rome, as well as serving on the International Law Commission. In the spirit of the nineteenth-century voluntarists, he insisted on the state as “a ‘given’ person, a real entity,” rejecting contentions that a state is merely “a secondary, artificial, person.” The state, in his opinion, is the primary unit and subject of international law. His picture of the international community could have come straight from Hobbes. The states of the world were asserted to be “the private parties of the international system” existing in “a natural society.” They operate in a situation in which there are no underlying general rules “stemming from the whole society of men.” Arangio-Ruiz therefore rejected the idea of “an underlying collective entity or community” underpinning international law. International law is essentially contractual in character, without any “continuous normative texture corresponding to [a supposed] public law of mankind.” In particular, customary law is contractual, and not legislative, in nature. Like the nineteenth-century positivists, he insisted that “the raison d’être of international law” is the resolution of disputes between states, not the forging of a global great society. He endorsed the dualist position of a strict separation of national from international law and explicitly rejected the idea of a dédoublement fonctionnel in international law. He believed that states were currently “more attached to voluntarism than they have ever been in the past.” Nor did he believe that developments since World War II had made any fundamental change in the nature of international law. Another outspoken champion of the voluntarist (or contractual) school was the French lawyer Prosper Weil, who forthrightly pronounced himself

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in favor of “a consensualist or voluntarist approach to international law.” As such, he was a staunch opponent of a drift toward majority rule in international law, which he denounced as a “pathological phenomenon.” He insisted that the function of international law remained—as it always had been—“to ensure the co-existence . . . and the cooperation of basically disparate entities composing a fundamentally pluralistic society.” The community of states was described by him as “a society of juxtaposition,” with the right of states to take different paths from one another being a fundamental feature of state sovereignty. “[T]here can be no question,” Weil averred, “of some ‘international democracy’ in which a majority or representative proportion of states is considered to speak in the name of all.” Opposed to this is the legislative theory of custom, which had the strong support of Kelsen. Another supporter was the French writer Michel Virally, who taught at the Graduate Institute of International Studies in Geneva and later at the University of Paris. Customary law, Virally contended, is governed by a principle that he labeled as “opinio juris communis”—meaning communal legal opinion, or the general consensus of states. He described customary law as “the translation in terms of law of the spontaneous activity of the social body.” What is looked for, therefore, is the presence or absence (as the case may be) of a general or collective consensus on the part of states as to the existence of a law, and not the consent of each state individually. Whether such a general consensus is present or absent is a question of fact, to be ascertained by careful observation of state practice, which Virally asserted to be “the central element” of customary law. What is at stake in this conundrum may be stated simply. According to the legislative view, the majority of the states binds the minority, in the way that laws adopted by a majority of a legislature are binding even on those who oppose them. On a contractual view, in contrast, customary laws bind only those states that actually participate in or consent to the rule, leaving the dissenters free to go their own way. Voluntarist lawyers are, effectively by definition, committed to the contractual thesis. Empirical lawyers could go either way without undue difficulty. This interesting—and fundamental—question as to the nature of customary law remains unresolved. This is partly because at least some of the empirical positivists have given their support to a major caveat to the legislative position. This involves accepting the majority rule thesis in principle—but

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subject to the very important proviso that any state that actually voices an objection to a customary rule as it is forming is thereby exempted from application of the law. This opportunity to opt out of rules of customary law came to be labeled, reasonably enough, as the “persistent-objector” principle (although perhaps “express-objector” principle would be a better term). The status of this persistent-objector principle remains unclear. Some lawyers have maintained, very matter-of-factly, that it is part of international law. Brownlie speculated that the principle would become increasingly important in the future, as a counterweight against an increasing “majoritarian tendency” in international law. Firm judicial evidence in its favor is, however, sparse and ambiguous at best. Some support for it was evident in two World Court judgments in the early 1950s. But a clear judicial endorsement of the persistent-objector theory remains elusive. For present purposes, it is only necessary to note its practical effect: that it goes far toward bridging the gap between those who support majority rule in the making of customary law and those (i.e., the voluntarists) who oppose it. The broad contours of the postwar positivist debate over customary law within the positivist camp may be summed up rapidly. There were three groups. One of them, including writers like Kelsen and Virally, held to a pure legislative view of customary law, without allowance for a persistentobjector caveat. A second group, including Brownlie, accepted majority rule in customary law in principle, but only subject to allowing opting out by persistent objectors. The third group—now usually known as “voluntarists”— comprising writers such as Arangio-Ruiz and Weil, held to the contractual theory, asserting that even customary rules are binding on states only with their actual consent, and hence that customary law is, at root, merely tacit treaty making. In practice, the great majority of positivist lawyers were in the second or third of these groups.

The Socialists It was only after 1945, when the Soviet Union emerged as an active participant in global politics and lawmaking, that socialist perspectives on the subject came to the attention of a wider audience. The seminal event was the election of Krylov to the World Court. He was a professor first at the University of Leningrad and later headed the Department of International Law at

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the Institute of International Relations in Moscow. He had contact with Western lawyers and diplomats in the course of his work as a Soviet delegate to the Dumbarton Oaks conference (on the drafting of the UN Charter) and at the UN Conference in San Francisco. It has been observed that Krylov gave a course at the Hague Academy in 1947—marking the first systematic presentation of socialist conceptions of international law to a (largely) Western audience. Previously, debate on that subject had taken place within the Soviet Union itself, with Westerners left to glean what they could from the outside. The principal feature of socialist thought in international law in the postwar period had nothing to do with socialism per se. It was a rigid adherence to mainstream positivism. This could sometimes be in the direction of the empiricist variant, since socialist writers tended to stress the importance of giving due importance to historical and material factors in legal thinking. Tunkin, for example, in giving a capsule definition of the “Marxist method” of legal analysis, stated that it consisted of going “from reality to abstract conclusions” instead of the other way around. The similarity to Schwarzenberger’s outlook is clear. Socialist lawyers were equally at ease emphasizing the voluntarist aspect of positivism, since they were strong partisans of state sovereignty, the principle of nonintervention, and an insistence on consent as the fundamental basis of international law. They were equally strong opponents of the idea that the states of the world form a true community rather than a mere aggregation. The idea of world government was dismissed with scorn. Krylov, for example, derided it as “a reactionary utopia” that would amount to “the world supremacy of capitalist groupings.” These core features of the socialist outlook were neatly encapsulated by the Bulgarian lawyer Alexander Yankov in his assertion that the international system has not changed and remains a system based on sovereign States. Thus States are the main agents of the law-making process where the Grundnorm, the basic rule, is consent, agreement between the States parties. . . . [I]f there is no consent, there is no law. This is . . . a general truth about the foundation of international law, which is a consequence of the international system being based on collaboration between sovereign States.

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It has been observed that, in considering relations within the socialist bloc, socialist lawyers adopted a solidarist stance. Regarding the capitalist world, matters were entirely different. It was now widely accepted in Soviet and Soviet-dominated circles that general international law was not socialist in character. Rather, it was a means by which a certain degree of pragmatic cooperation can be carried on with capitalist states—while always retaining the thesis that, ultimately, the interests of the two blocs are incompatible. A highly revealing insight into socialist thought was afforded by a textbook produced in the late 1950s under the auspices of the Soviet Institute of State and Law (the foremost legal research organization in the country)— with the ubiquitous Korovin as a principal contributor. The book was interesting for the pointed criticisms that it directed against a number of Western writers, with indications of where their errors lay. The Vienna School was an obvious target, for its repudiation of the concept of state sovereignty and its support for individuals as the true subjects of international law. Solidarism was dismissed as “an unscientific thesis of inter-class solidarity.” That is, it was in error for its consensus ethos, which denied the fundamental incompatibility of interests between working classes and capitalist classes. Furthermore, solidarists were accused of supporting calls for world government and international police forces. American advocates of solidarism naturally came in for heavy criticism. Philip Jessup and Clyde Eagleton were singled out as advocates of world government and intervention, and thereby as apologists for imperialism. British writers were not spared. Brierly was attacked for reducing sovereignty to a mere “invention of theoreticians” and for thereby “introducing confusion into International Law.” The sharpest barbs were directed at Lauterpacht. He was excoriated for asserting that individuals, as well as states, are subjects of international law and for his attempts “to legitimize international intervention in the internal affairs of States under the pretext of defending ‘basic human rights.’ ” His editions of Oppenheim’s treatise were derided as completely ignoring Soviet theory and practice, and as providing examples of “legal dogmatism and ostentatious objectivism” in action. Another text from the mid-1950s placed Lauterpacht—along with Kelsen, Verdross, Potter, and Scelle—among the “minstrels of the American imperialists.” If the tone of these various attacks on Western writers was a bit sharp, much of the criticism was justified, in the sense that these writers actually did reject doctrinaire positivism.

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And if critics of positivism were being sought out for attack, then Lauterpacht certainly did present all too apt a target. Even if there was no specifically socialist version of general international law—apart from an especially rigid adherence to positivism—socialist writers did place a strong emphasis on certain legal principles. Perhaps most conspicuously, there was a forceful and consistent denunciation of imperialism and colonialism in all its forms. Its most striking manifestation was an explicit neo-just-war thesis that was sometimes called the “Vyshinsky Doctrine,” named after Stalin’s leading legal minister—and chief prosecutor in the notorious purge trials of the 1930s—who propounded it in the UN General Assembly in 1950. (The label was applied by American opponents of the doctrine, not by the Soviets themselves.) The thesis was that the UN Charter’s general ban on the use of armed force does not apply to one important category of conflict: anticolonial struggles. “A just war,” in the words of the Institute of State and Law textbook, “is a non-predatory, liberatory war,” which includes “wars of national liberation” by colonial peoples against their imperialist overlords. Western governments, not surprisingly, fiercely rejected this doctrine.

Liberalism Liberalism remained broadly true to its nineteenth-century and interwar roots. Quincy Wright provided as apt a summation of it as can be found, essentially defining liberal doctrine as favoring “the adaptation of international law to international justice.” More specifically, liberalism had two principal features. One, inherited from the interwar period, was support for collective security and the UN—and, by extension, for multilateralist approaches to international problems in general. The other, dating back to the nineteenth century, was support for human rights. The outstanding trend in post–World War II liberalism was the sharply higher profi le of humanrights concerns. In terms of personnel in the liberal cause, there was a strong element of continuity from the interwar period, since two of its foremost champions— Wright and Lauterpacht—were still highly active. Lauterpacht even ascended the bench of the World Court in 1955. There was something of a division of labor involved, with Wright chiefly interested in collective-security

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issues, and Lauterpacht in human rights. There were new figures in the human-rights field, notably in the United States. One was Louis Henkin of Columbia University. Another was Louis Sohn, originally Polish, who had the singular good fortune to be on the very last boat out of Poland in 1939 before the war broke out. He was going to Harvard to study—where he became a research assistant, and then professorial successor, to Manley Hudson. Thomas Buergenthal had the most immediate reasons to be committed to the field of human rights. Originally from Czechoslovak ia and Poland, he had been interned in concentration camps as a child by the Nazis. After moving to the United States at the end of the war, he went on to hold various academic posts and also to serve as a judge on the Inter-American Court of Human Rights (in 1979–91) and later on the World Court (in 2000–10). As in the past, liberals were explicit in pointing out what they saw as the shortcomings of positivism. Wright objected to positivism on the ground that it “reduces international law to such small proportions that it is able to deal with few disputes” and that, in positivist doctrine, “the community of nations” becomes a mere “slightly attenuated anarchy.” He insisted that international law must possess some creative capacity—that it must contain “within itself the means of its own change.” While in past centuries, that had meant an appeal to natural-law principles, in today’s world, he thought that it is “perhaps better . . . expressed by the word ‘justice’ as interpreted by predominant world opinion.” In order for progress to occur, there must first be a belief in justice—with that belief then implemented through law. In the other great liberal cause—the promotion of human rights— Lauterpacht emerged as the leader. In 1945, he pleaded for the enactment of an “International Bill of the Rights of Man” (in a book with that title). Two years later, in his Hague Academy lectures, he continued the struggle, with a candid warning that “some sacrifices of sovereignty” would be necessary to attain the goal of effective protection of human rights. And he unapologetically regarded the human-rights movement as a step toward “finally constituting the individual a subject of the international commonwealth.” At the heart of international human-rights law, there remained certain legal conundrums that continued to elude resolution. Foremost among them was the question of the very nature of that law. Did the various humanrights treaties (such as the Covenants of 1966) actually create the rights in question, or should the treaties instead be regarded as merely providing

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concrete protection of preexisting, inherent rights? On this issue, the dividing line between positivists and liberals was (and remains) razor-sharp. Positivists hold, on principle, that rights are the creation of law, not vice versa. Liberals, in contrast, hold human rights to be inherent, primordial, and inalienable rights of human beings as such. States are accordingly to be welcomed as protectors of those rights, but not honored as creators of them.

Solidarist and Sociological Approaches The solidarist (or sociolog ical) approach to international law blossomed in the postwar period as never before—though along the lines laid down in the nineteenth century and the interwar periods. It continued to be animated by two core beliefs. One was that law is a product of social and economic circumstances and not a menu of timeless, abstract norms. The other was that social collectivities or communities possess interests of their own, distinct from the individual interests of their members, and furthermore that this general collective interest takes precedence over the myriad parochial individual concerns. As before, solidarism shared certain important features with the empirical variant of positivism— especially positivism’s disdain for excessively rationalistic approaches, such as that of the Vienna School. Another general feature of solidarism that was much in evidence was a decidedly optimistic outlook. Th is was not strictly inherent in the solidarist approach as such—and later on (as will be seen), a pessimistic version was devised. In the fi rst postwar generation, though, solidarists tended to believe that fundamental changes could be brought about. Solidarism continued to be, as before, a very broad church. For example, it could take either a “top-down” or a “bottom-up” approach to international life. The top-down approach was essentially an elitist viewpoint—seeing international society as being under the control of technical experts who would supervise and organize the common people according to some scientific pattern. This top-down approach was a legacy from the nineteenth century and interwar periods, with St.-Simonism as the exemplar. Prior to World War II, the clearest exemplar of this outlook was Lasswell, who continued his activities after 1945. The principal innovation in solidarism in the postwar period was the development of a bottom-up—or democratic—version.

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Two of the foremost solidarist writers from the interwar era were still present and active after 1945: Scelle and Álvarez. The remarkable length of Álvarez’s career has been noted, but if the messenger was long-lived, the message remained much the same. Álvarez was now able, however, to issue his pronouncements from the lofty perch of the World Court bench—though only as individual opinions and not as judgments of the Court itself. In a dissenting opinion in 1950, he set out the basic credo of solidarism with admirable succinctness and clarity: the idea that the international community is not merely an aggregation of wholly independent states, but rather a true society—with “an existence and a personality distinct from those of its members.” The result, insisted Álvarez in another dissenting opinion that same year, was the emergence of “a new universal international conscience,” which in turn was pointing the way to “a new international law.” This new law was rooted in the dense interdependence of states that had arisen in the nineteenth century. As a consequence, “the notion of absolute sovereignty has had its day.” The stress should now be on the duties of states rather than on their rights. International legal doctrine must not be seen as a closed, self-referential corpus of abstract norms, but instead as a reflection of the concrete political and social realities of the world in which it functions. Because of the dynamism of international life, he maintained, “the political aspect of questions is tending to have precedence over the juridical aspect.” In the law of treaties specifically (the subject area under consideration in the case), that meant a treaty should be interpreted in the light of the purposes that it was designed to serve, rather than in terms of its literal text. There were also some new figures on the solidarist scene. One was Julius Stone, originally British but based in Australia, who doubled as a scholar of jurisprudence (in the manner of Wolfgang Friedmann in the United States). Another was C. Wilfrid Jenks, a British lawyer who worked for many years at the International Labor Organization—an appropriate place for anyone of the solidarist temperament. (Scelle also worked for the ILO.) He looked forward to the time when the idea of the welfare state would be expanded into the concept of a “welfare world,” bolstered by an appropriate array of international institutions. Where peace and order had previously been the principal goals of international law, now prosperity, progress, and the promotion of human rights should be the urgent priorities.

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Of the solidarist writers on the European scene, one of the boldest was Rolando Quadri, from Italy. Somewhat confusingly, Quadri referred to his approach as “realism”—meaning, thereby, something very different from realism in international-relations writing. Be that as it may, he dismissed the will-based variants of positivism (the common-will theory and autolimitation) as mere “dialectical artifices.” The common-will theory was derided as “a manifest fiction.” Also rejected were rationalist theories of law as a logical emanation from basic axioms. The correct position, he asserted, is that law is a “social fact.” The “is” and the “ought” are not separate concepts, as the nineteenth-century positivists had believed, but are one because reality itself is a unity. Unlike most solidarists, Quadri placed a great stress on sanctions and coercion as central features of international law. “Without coercion,” he contended, “there is no law.” The coercive force behind international law is found not in the separate wills of the individual states, but rather in the collective will of the community at large, which stands above the individual wills of the states. International law is therefore, as he put it, “the expression of superior needs over particular interests.” This superior will, he added, is decidedly reminiscent of Rousseau’s General Will, in that it is not to be discovered in a mechanical fashion, by majority voting. It can be discerned only by a careful analysis of “the forces which historically succeed in rendering a rule effective.” The “dominant social forces” of any given period operate, in Quadri’s opinion, as “a ‘living’ constitution,” superior to any written ones that exist and determine the character of international law at a given time. Quadri advanced a theory distinctly reminiscent of Scelle’s dédoublement fonctionnel, in regarding states as operating, potentially, in two quite distinct capacities. One is an egoistic capacity, in which a state seeks to advance its own interests. In the other capacity, it acts as a member of the international community—and, as such, as a participant in the making and enforcing of international law. In this second capacity, intervention in the affairs of other states is permissible. Quadri was therefore more willing than many other writers to accept the interventionist implications of solidarist thought, with its stress on interdependence, community, and general interest at the expense of narrow egoism.

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Solidarist ways of thinking gained an especially firm hold in the United States in the years following World War II, and it is not difficult to see why. In the country’s relatively sudden emergence as a global superpower, the importance of concrete historical circumstances was vividly evident. There was also the heritage of the American New Deal of the 1930s, in which technical expertise, centralization of authority, and a focus on economic development had played such conspicuous roles—leavened by a strong tinge of liberal idealism. The New Dealers were, in so many ways, latter-day St.-Simonians. New York was one place where solidarist ideas took a firm hold, at Columbia and New York Universities—to the point that the label “Manhattan School” has sometimes been applied to writers based there. At New York University, Clyde Eagleton advanced ideas distinctly in tune with Scelle’s dédoublement fonctionnel. Like Scelle, he had little patience with positivist doctrines of state sovereignty, maintaining instead that the state should be seen as “the agent of the [international] community,” carry ing out that community’s policies within the ambit of its jurisdiction. A failure to discharge the duties incumbent upon that agency role must result, in Eagleton’s opinion, in legal liability to the larger community. Uptown, at Columbia University Law School, Wolfgang Friedmann continued his support, begun in the interwar years, for the idea that international law (and indeed all law) is “closely tied to the structure of the society which it seeks to regulate.” His book The Changing Structure of International Law (1964) may be regarded as the single best exposition of solidarist thought of the first postwar generation. Friedmann lamented that current international law was “no more than a loose and patchy structure of relations between sovereign States.” But he looked forward to a time when it would be transformed from “an essentially negative code of rules of abstention” into a set of “positive rules of co-operation.” Philip Jessup was another prominent figure. He was on the faculty of Columbia Law School, but also did diplomatic work, some of which proved controversial. As the author of the famous (or notorious) white paper on China in 1949, which urged American dissociation from the Nationalist government, he became a target of conservative anti-Communist activists. In particular, Senator Joseph McCarthy accused him of being a Soviet sympathizer. He weathered these attacks and went on to serve as a World Court

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judge in 1961–70. To international-law thought, his contribution was the idea of “transnational law.” The term was coined in 1956 and was designed to reflect the interpenetration of legal rules and systems generally across the world, in contrast to positivism’s dualistic picture, which sharply separated international and domestic law. Jessup insisted on the need for international law to be “accompanied by moves in the economic, social and political fields calculated to remove or reduce the causes of international friction.” As concrete examples, he invoked the American New Deal (specifically the Tennessee Valley Authority) and the Marshall Plan for Eu ropean recovery—enterprises in which “lawyers and economists and engineers and others worked together to solve a problem and to meet a need.” These “great undertakings” were favorably contrasted to the Pact of Paris, which Jessup belittled as an attempt to foist an abstract ideal onto states without regard to the realities of life. A short distance to the east of Manhattan, Yale Law School in New Haven, Connecticut, became the foremost American bastion of solidarism. One of the two leading figures of this “New Haven School” (as it came to be labeled) was the political scientist Harold Lasswell, relocated to Yale from the University of Chicago. The other was a newer arrival on the scene, a lawyer named Myres S. McDougal. McDougal’s original legal field had been property law. While teaching at the University of Illinois Law School in the early 1930s, he made Lasswell’s acquaintance—or perhaps, more accurately, came under his spell. He moved to Yale Law School and first became involved in international matters by doing legal work for the lend-lease program during World War II. Shortly after the war, Lasswell’s move to Yale made the partnership between the two closer than ever. They made a formidable team. What bound the two of them together was a mutual interest in values as the essential currency of politics and law, together with a driving urge to promote a particular set of values to the broadest extent possible. McDougal summed them up under the rubric of “human dignity,” which became a watchword for him. More specifically, Lasswell and McDougal devised an eightfold confederation of values that it was their central mission to promote. (For the record, they were power, respect, enlightenment, wealth, well-being, skill, affection, and rectitude.) The central role played by the promotion of values sharply marked off the New Haven School from realism

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in the international-relations sense of the term, with its single-minded focus on power. In keeping with the general solidarist outlook, Lasswell and McDougal had little patience with normative, conceptualist, logical approaches of the sort championed by the Vienna School. They looked to the rough-andtumble reality of international life for the emergence of values. The mission of lawyers, according to this school of thought, is not to determine the contents of rules, in the manner of traditional lawyers. It is to remake the world at large by disseminating the eight values as vigorously and comprehensively as possible. Theirs was a doctrine for activists rather than analysts, for reformers rather than scholars. Lasswell liked to describe his field of study as “policy science” instead of “political science,” so as to stress its activist character. In the same spirit, McDougal referred to his legal philosophy as “policy-oriented jurisprudence.” Instead of prosaic-sounding “international law,” he preferred to expound upon “world public order.” Perhaps the most distinctive thing about the New Haven School was the stress that it placed on the process of decision making as the essence of law. McDougal and Lasswell actually defined law as “the making of authoritative and controlling decisions.” Only in very minor part, however, did this refer to decision making by courts or tribunals. They were interested in all manner of decisions in the public sphere, from the local neighborhood milieu, all the way up to the global level. Modesty of ambition was not one of their traits. Several points about the New Haven School are worth noting. One is that it was strongly consensus-oriented. It was decidedly nonconfrontational, with a stress on the changing of values as opposed to the application of sanctions. In this respect, the New Haven School may be regarded as a direct heir of those strands of functionalist thought in the 1930s that had expressed opposition to the idea of a coercive League. The New Haven School was certainly not opposed in principle to sanctions by international organizations (as, say, Borchard was). But sanctions were not at the center of their system. The mission (as it could fairly be called) of the New Haven School was to induce the sovereign states to endorse the eightfold value program of their own free will, by winning the allegiance of the elites that governed them. One effect of this outlook was to give the New Haven School a certain propagandistic, or evangelistic, flavor. But it also meant that the New Haven

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School was relatively nonthreatening. Its goal was to co-opt and convert elites, not to overthrow them. The New Haven School, in fact, was permeated by a general aura of elitism. It may be noted that democracy was not, per se, a component of the eightfold scheme. This was a reflection of Lasswell’s frankly elitist outlook. Human dignity was something that was going to be brought to the masses by their leaders. It was not something that was expected to emanate from them. This top-down outlook had the interesting effect of enabling adherents to the New Haven School to coexist peacefully with the positivists. It was possible, in the New Haven scheme of things, to grant full respect to state sovereignty, the sovereign equality of states, and nonintervention, while at the same time promoting “a universal order of human dignity.” Still another key feature of the New Haven School was its optimistic aura. McDougal and Lasswell looked at the world as “a cauldron of aspiration for a better life on the part of millions of human beings.” It was a philosophy that was tailor-made for people who were impatient to burst forth from the classrooms, libraries, archives, and lecture halls—and to set about changing the world. The deadweight of the past meant little to it. Everywhere one looked, there were decisions to be made, policies to be set, values to be promoted. Once the rationalistic shackles of the pedantic men had been thrown aside, there seemed no limit to what might be accomplished. Idealism, activism, and the spirit of the new, in short, were the grains running deeply through the wood of the New Haven School. It may also be observed that the New Haven School was particularly well placed to flourish in the atmosphere of the Cold War. It was resolutely Western and liberal in its stress on human dignity, but able at the same time to eschew overt hostility to socialism. Certain aspects of socialism could even be supported, such as measures to promote the welfare of the working classes. In fact, the New Haven program had much of the spirit of a benevolent bureaucratic socialist order, of the kind that H. G. Wells and the Fabian socialists of Britain had favored. The New Haven School may have been firmly in the Western camp in the Cold War, but its technocratic and nonconfrontational character enabled it to keep well away from the political front lines. It was, in other words, a thoroughly Western program without being aggressively partisan. It was therefore well equipped to win support across the political spectrum in the West—another sign of its fundamental consensus orientation.

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Critics of the New Haven School lamented the highly jargonistic character of much of the writing produced by it. Some maintained that, despite the extended lip ser vice paid to the methods of the social sciences, there was not actually much real use of them. Moreover, the impact of the New Haven School on the real world cannot be said to have been very great— outside American law schools, where it found a ready welcome by virtue of its liberal (but far from radical) ethos. Outside the academic setting, however, it is difficult to identify any initiative or development produced by it. One looks in vain through the work of the I.L.C. or the World Court for any substantial trace of its influence. Th is may be an indication that the New Haven School represented, ultimately, more a state of mind than a specific program of action. As such, its influence might be more widely diff used—if also somewhat attenuated—than its critics would suppose. For those who were uneasy about the elitist outlook of the New Haven School, a kind of mirror-image alternative was on offer in the United States—a democratic, bottom-up approach counterpart. This was a program called the World Order Models Project (or WOMP). Its major proponents in fact emerged from under the capacious New Haven umbrella (Lasswell was a member of the project’s sponsoring committee). One of its leading figures was Saul Mendlovitz, at Rutgers Law School. Another was Richard Falk, based in the Woodrow Wilson School at Princeton. Although both Mendlovitz and Falk were greatly influenced by the New Haven School, they were distinctly hostile to the idea of values imposed from above—and therefore to traditional ideas of world government. Theirs was a more politically sharp-edged version of solidarism, which looked to the displacement of repressive elites and to a world of participatory democracy. It accordingly favored a large role for nonstate and nongovernmental bodies in world affairs. Solidarism, in short, was—and continues to be—a variegated and sprawling world. It has never been anything like a single school of thought, but instead has been more in the nature of a general frame of mind. That may have been a weakness rather than a strength. Solidarism has sometimes seemed much longer on aspiration than on discernible achievement. Álvarez may have trumpeted its message—or at least its spirit—from the bench of the World Court. But in this, he spoke alone and not for the Court as a whole.

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Nevertheless, it is possible to identify two specific signs of the solidarist outlook in postwar international law. The first was a provision in the Vienna Convention on the Law of Treaties on what are called “peremptory norms” of international law (or ius cogens, for those still wedded to Latin). These are customary rules or general principles of law that override the wills of individual states, in the sense that, if two states agree to a treaty that is contrary to a peremptory norm (such as an agreement to discriminate against a named racial or religious group), then the treaty will be automatically void. Peremptory norms, therefore, are expressions of general community values that trump agreements between individual states. The other specific indication of the solidarist perspective in action was provided by a World Court judgment in 1970, which stated that there is “an essential distinction” between two kinds of obligation. The first kind comprises duties owed to a specified state or group of states. An ordinary treaty obligation falls into this category. The second kind of obligation is owed to “the international community as a whole”—with the crucial implication that any and every state is allowed to make a legal claim in the event of a violation. In this category of general community duties (as they might be described), the Court identified the prohibitions against aggression and genocide, as well as (more broadly) “the principles and rules concerning the basic rights of the human person.” These two concepts—of peremptory norms and of obligations owed to the world at large—are of potentially far-reaching character, suggesting the existence of a superior community will that takes precedence over the “ordinary” wills of states. It cannot be said, however, that either of these notions has actually made any major concrete contribution to international law. Perhaps an opportune moment has simply failed to present itself. It may be that potentially transformative concepts will loom large in the international law of tomorrow, even if their present-day role is a meek one.

A Third World Arrives The idea of a three-tiered international system was not new. It has been observed that, during the nineteenth century, international lawyers, following in the footsteps of contemporary anthropologists, had posited the existence

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of three categories of states: civilized, barbarian, and savage. The savage group could easily have been called the “third world,” although that particular expression was only coined in 1952, by a French demographer, anthropologist, and economic historian named Alfred Sauvy. He was comparing the colonial areas of the world to the disenfranchised middle classes of France prior to the French Revolution—the Third Estate. One important early step in the advance of the less developed world to full membership in the international community was the final abrogation of extraterritoriality privileges. The consular courts of Egypt closed their doors in 1949 (as provided by the Montreux Convention of 1937). In China, too, extraterritoriality was, at long last, brought to an end, by way of a series of bilateral treaties. The decisive step here was a termination agreement concluded with the United States in 1943. Over the next four years, similar treaties with all of the other relevant powers ended extraterritoriality completely in the Celestial Empire (or republic, as it now was). A more striking development was the attainment of independence by colonial areas all over the world. Indonesia and India (along with Ceylon, Pakistan, and Burma) took the lead in the immediate postwar years. The pace picked up in the 1950s, as African colonies began to achieve independence, with a large onrush of new states occurring around 1960. In political terms, this development marked a major change, but in legal terms, less so. The new governments were generally more concerned to participate in the international legal system—that is, to benefit from it—than to overthrow it. The governments of the new countries had a certain natural affinity to the socialist states. For one thing, the socialists had a long record of vociferous opposition to colonialism. In addition, many of the new states sought to develop economically along socialist lines, with centrally directed economies. The affinity extended into the legal field as well, for the new states, like the socialist ones, found the mainstream positivist version of international law to be the most conducive to their interests, and for much the same reason. The principle of the sovereign equality of states and the prohibition against intervention by outside countries—no matter how powerful—had obvious attractions to poor and militarily weak countries. Instant and automatic legal equality with the major powers—coupled with autonomy to go their own way in terms of national policies—proved an irresistible combination.

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At the same time, though, there was some dissatisfaction in the newly independent countries, as there had been in the socialist states, over the fact that international law was overwhelmingly a product of Western Europe and its offshoots. That meant that joining the international community entailed, as it were, “signing on” to a system that had been created by very different countries in very different circumstances from those now prevailing. In theory, it might have been possible for one or more of the new states to “opt out” of this system entirely. But a moment’s thought revealed that to be unfeasible. Such an isolated state would be an “outlaw” state in the true legal sense. It would, presumably, have no legal status as a state, no right to UN membership, no ability to send or receive ambassadors, and possibly no protection from the UN Charter’s general prohibition against the use of force. There was, accordingly, no realistic alternative to accepting international law as it stood at the time—though with the possibility of steering its future development along lines preferred by the new states. Over the years, the developing countries, frequently with the socialist states as ready allies, attempted to alter the substantive rules of international law, but not always successfully. One conspicuous failure was an attempt to forge a “new international economic order” in the 1970s, based on two broad principles. One was an ironclad respect for state sovereignty, to the point of effectively allowing host countries unilaterally to decide on the treatment of foreign investors (including the highly sensitive question of compensation for nationalization of property). This amounted, in short, to an assertion of the Calvo Doctrine. The other key principle was an “obligation” on the part of Western states to transfer significant economic resources to the developing world. A combination of indifference and hostility by the developed countries, however, prevented this program from becoming anything more than an aspiration. In other respects, though, the developing countries were more successful. Two of their initiatives were especially noteworthy. One was largely symbolic and of less practical importance than had been anticipated. The other, ironically, was soon seen to be in danger of being all too successful. The first was in the area of armed conflict. The other was the development of a new right of self-determination.

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The Laws of War The change in the laws of war—which proved to be largely symbolic— concerned not the substantive law on the conduct of war, but rather the threshold (but important) question of entitlement to combatant status. This status is important for two chief reasons: first, it gives immunity from ordinary criminal laws for acts of war such as killing enemy soldiers or taking prisoners; second, it gives an entitlement to prisoner-of-war status in case of capture. Combatant status in international law, however, has been reserved for members of armed forces fighting in international armed conflicts and is therefore not available to insurgents in civil wars. In the 1970s, the governments of the developing countries sought to remove that limitation—in part. When two additional protocols were being drafted to the Geneva Conventions of 1949, the governments of the developing countries—with strong support from the socialist states—sought to have wars of national liberation, along with wars against racist governments, “promoted” into the category of international wars. This effort was successful and was incorporated into the Additional Protocol of 1977. There were misgivings about this, especially in developed countries, and murmurs that this amounted to conferring a status of “just war” onto those two categories of struggle. It is true that these two kinds of civil strife were now given special legal treatment, by being treated as tantamount to international conflicts. But no alteration was made in the substantive general rule prohibiting the use of force. That is to say, no special license was given to anticolonial agitators to resort to armed force in the first place. Also, the change had little real effect. By the time the protocol entered into force (in 1978), very few colonies remained, so that wars of national liberation were little in evidence. Moreover, the dismantling of white racially based governments in Southern Rhodesia (in the early 1980s) and in Namibia and South Africa in the 1990s meant that the provision on conflicts against racist regimes lost their practical relevance.

Self-Determination of Peoples The other major change promoted by the developing countries was the principle of self-determination of peoples. This is of special interest because it

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reveals the way in which legal norms can escape from the control of their creators and assume a life of their own—and sometimes a threatening one. One notable instance of this has been observed: the Pact of Paris, which in its inception was thought to apply only to the conduct of states but was later held to entail criminal liability for individuals. The concept of selfdetermination, similarly, was thought at its inception to have a relatively limited application. Its function was to impose a legal obligation onto colonial powers to grant independence to their colonies. Self-determination began its juridical life in the UN Charter, which expressly identified “the principle of equal rights and self-determination of peoples” as one of the bases of friendly relations between states. A further step was taken in 1960, when the UN General Assembly—now fortified by many newly independent members—adopted a Declaration on Decolonization, which pronounced that “[a]ll peoples have the right of self-determination.” More significant was the inclusion of self-determination in both of the International Covenants on Human Rights in 1966. Judicial support for the principle was forthcoming from the World Court. In an advisory opinion in 1975, in the context of Spain’s relinquishment of control over its colony of Spanish Sahara, the Court defined self-determination, somewhat vaguely, as “the need to pay regard to the freely expressed will of peoples.” Since that time, no clearer idea of the content of the right has emerged from the Court. In 1995, however, it did shed some light on its legal status, confirming it to be “one of the essential principles of contemporary international law”—to the point that the duty of states to respect it was explicitly held to fall into the special category of duties owed to the world at large and not merely to the struggling peoples themselves. Moreover, in 2004, it made an explicit finding, for the first time, of a violation of it: by Israel, in the form of the building of a security fence that encroached into the Occupied Territories. In the course of time, worries—or hopes—began to grow that the principle of self-determination might have (or acquire) a broader application than had first been supposed. It began to be asserted that the principle also applied to distinctive (and often disgruntled) minority groups within independent states. Some even contended that it could apply to the entire population of independent states—thereby becoming a sort of surrogate version of a general right of democracy. There was much uncertainty on these matters

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because the right of self-determination was stated (in the Human Rights Covenants, for example) to be a right belonging to a “people.” The idea that a “people” could have rights in international law, along with states, was not a new one. It bore a great resemblance to the ideas of the nationality school of the nineteenth century, with its stress on nations—rather than states—as the fundamental units of international life. Deciding what constituted a “people” in the late twentieth century proved, however, to be every bit as difficult as deciding what constituted a nation in the earlier period. The difficulties, moreover, did not end there. Worries—or hopes—arose that the concept of self-determination might be applied to minority groups within independent countries. Still more alarming (to some) was the possibility that it might even extend to conferring a legal right of secession onto such groups. Governments the world over hastened to forestall any such radical notion as that. In the 1970 Declaration on Friendly Relations, the UN General Assembly expressly stated that the right of self-determination must not be understood as “authorizing or encouraging any action which would dismember or impair” independent states. There was, however, a proviso: that this antisecession understanding applies to states that possess “a government representing the whole people belonging to the territory without distinction as to race, creed or colour.” This caveat has inevitably given rise to a theory that, in states where the government is not representative of “the whole people,” oppressed peoples do have a right to secede. This became known as the theory of “remedial” secession— meaning secession as a last-resort remedy of a people suffering oppression, on a discriminatory basis, at the hands of an unrepresentative government. The theory received some consideration from the Supreme Court of Canada in 1998, when it considered the claim of the province of Quebec to secede from Canada. The Court, however, did not reach a firm conclusion, cautiously stating it to be “unclear” whether such a right exists in international law. The World Court has similarly skirted this delicate question (so far). An opportunity to expound on the subject was presented to it, following the promulgation of a unilateral declaration of the independence of Kosovo, from Serbia. This declaration was adopted in 2008 by the ethnic Albanian members of the regional assembly of the province of Kosovo. At the initiative of the Serbian government, the UN General Assembly requested an advisory opinion from the Court as to the lawfulness of that declaration. The

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Court’s response, handed down in 2010, proved to be the very soul of caution. It ruled that the issuing of an independence declaration did not, in itself, violate international law. In other words, it was no violation of international law to claim to be independent. But the Court pointedly refrained from saying what the actual effect of the declaration was (if any at all). In practical terms, therefore, the Court merely treated the issuing of the declaration as an exercise of free speech, and left it at that. The fear (or hope) that self-determination might prove to be a more powerful and wide-ranging principle than had first been envisaged was therefore still very much alive, and contested, in the early years of the twenty-first century. It was a telling indication of how threatening some principles of international law can be—especially if they should capture the imagination of the press and public. So long as international law played little role in the daily political life of the world, such concerns would be of little moment. But starting around 1980, international law began to loom much larger on the world scene that it ever had before. Some were greatly heartened by this development. Others were not.

chapter eleven

Shadows across the Path

n May  ,  , President Slobodan Milošević of Serbia (technically, the Federal Republic of Yugoslavia) was accorded a very dubious honor. He became the first sitting head of state to be indicted for crimes by an international tribunal. Along with four other top officials (including the prime minister and the military chief of staff ), he was alleged to have instigated crimes against humanity and war crimes. More specifically, he was accused of responsibility for the massacre of forty-five persons in the town of Račak, in the rebellious province of Kosovo. The immediate effect of the indictment was not great, since there was no superior power in the country that could arrest the president. That changed, though, when a combination of elections, street demonstrations, and abandonment by the military forced Milošević out of office, in October 2000. He was then arrested and, in June 2001, transferred to the International Criminal Tribunal for Yugoslavia in The Hague. This incident was only one of many signs that international law was becoming a more potent force in day-to-day affairs than it had previously been—a development over which there would be much ambivalent feeling. President Milošević, it may be confidently surmised, looked upon the trend with disfavor. But many others did too, for a wide variety of reasons. International law had previously been regarded as something rather esoteric and vague—but also fairly harmless. It nestled cozily in arcane tomes in libraries but was seldom seen abroad in the world. When it became more frequently sighted, it was not always welcomed.

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The Renaissance of International Law Around 1980, there was something of a change of atmosphere in world affairs that led to a palpable revival of international law activity, giving to international law a higher profile in world affairs than it had enjoyed since the immediate postwar years after 1945. The reasons for this change are not easily discerned. Certainly it had nothing to do with any impending end to the Cold War. If anything, relations between the two major powers turned worse at about that time, largely because of the Soviet presence in Afghanistan. The first sign of this renewed activity was a sharp increase in business at the World Court—sometimes in matters in which political tempers ran very hot. The ending of the Cold War in 1989–91 contributed to this trend, though to some extent in a highly unforeseen manner. The state of Yugoslavia broke into fragments in a chaotic and violent manner, accompanied by the worst atrocities that Europe had witnessed since the Second World War. The outrage that arose then led to the creation of the first international criminal court since the Nuremberg and Tokyo Tribunals of the 1940s. Progress and atrocity were marching in wary partnership.

The Revival of the World Court In 2012, the president of the World Court (Peter Tomka, from Slovakia) pointed out that, in the period since 1990, the Court’s caseload was approximately double what it had been in the decades prior to that. In fact, the upturn in judicial business had begun rather earlier, for reasons that remain somewhat unclear. One factor was a set of developments in the area of the law of the sea. By the 1970s, there was a consensus that the four conventions concluded in 1958 (on the basis of work by the International Law Commission) were already outmoded. Governments were increasingly pressing for significant expansions in their offshore jurisdiction, most notably in two respects: monopolies over fishing rights for large distances off their coasts, and extensions of ownership of continental shelves (or seabed areas). To deal with these issues, and a host of others, a conference on the law of the sea was convened in 1973. After a great deal of wrangling, a new convention on the subject was concluded in 1982, to replace the four earlier ones. Although

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the convention did not enter into force until 1994, many of its key provisions were widely agreed to have entered into customary law. One achievement of the new agreement was—at long last—to resolve the vexed question of the width of territorial seas. States were now authorized to claim territorial seas up to twelve miles off their coasts. But they were given, in addition, a right to claim “exclusive economic zones” for up to two hundred miles offshore, in which they would have fishing monopolies. That meant that some 90 percent of the world’s fisheries now became stateowned. States were also given ownership of continental shelves for a minimum distance of 200 miles offshore and a maximum of 350 miles (depending on prevailing geographical features). Among the consequences of this massive maritime “land grab” was a large number of overlapping claims to offshore areas, once governments set about availing themselves of their new prerogatives. These were the sorts of disputes that were tailor-made for resolution by way of international arbitration or litigation. The political salience of these disputes was often too low to spark much in the way of jingoistic fervor. The issues were commonly highly technical in character, and there were various legal guidelines and precedents that could readily serve as a basis for resolution by independent parties. Even before the drafting of the new Law of the Sea Convention was complete, the Court was put to work delimiting several offshore areas. Libya litigated against both Tunisia and Malta over boundaries between their respective continental shelves in the Mediterranean Sea, while the United States and Canada contested an area of the Gulf of Maine. Business was picking up at the World Court in other directions, too. In Tehran in 1979, over fifty American diplomatic and consular personnel (plus a few unlucky private citizens) were captured and held hostage under the auspices of the religious-based government of Iran, newly installed following a revolution. The spirit of Lars Tolumnius, it appears, lived on. The American government reacted in an unexpected fashion, by seeking an order from the World Court to Iran for the release of the captives. Never before had the Court been brought into the thick of such a highly charged political crisis. The Court issued a release order, which the Iranian government refused to carry out. The government of Iran refused even to participate in the proceedings. In 1980 came the full judgment, holding Iran to be in violation of the Vienna Convention on Diplomatic Relations (of 1961), to which both countries

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were parties. The Court again ordered the release of the hostages and also held Iran liable to pay damages to the United States (with the amount to be fi xed later). The Tehran Hostages case was, however, hardly a great demonstration of the practical efficacy of the Court, since the Iranian government made no effort to comply with its rulings. Resolution of the crisis had to await the reaching of a bilateral settlement in January 1981. But the affair did succeed in bringing the Court to the world’s attention as never before. The Tehran Hostages case was only the first of a growing number of forays by the World Court into high-profile political—and military—situations. On two occasions (up to 2012), there were findings by the Court that states had violated the fundamental duty to refrain from the use of armed force. The first of these was brought in 1984, by Nicaragua against the United States, regarding American government support for the contra insurgents. In its judgment in 1986, the Court sustained these claims. Some of American activities, such as the mining of harbors and attacking of ships, clearly constituted uses of armed force. But the Court went on to hold that various ancillary activities fell into that category as well—including the training of insurgents and the supply of weaponry and intelligence. The American government, disputing the jurisdiction of the Court over the case, declined to participate in the proceedings. (A later pro–United States government of Nicaragua discontinued the proceedings before the Court was able to assess damages owed.) The second ruling on the use of armed force arose out of the wars in the Congo in the 1990s, when a claim was brought by the Congo against Uganda. In 2005, Uganda was held to have intervened unlawfully and thereby to have violated the UN Charter’s prohibition against the use of force. It was exonerated, however, of responsibility for atrocities committed by independent warlord groups. The Congo government sought to pursue similar claims against Rwanda, but that country’s absence of consent to jurisdiction prevented the Court from acting. In 1994, the World Court was given the opportunity to clarify an important component of the law relating to the conduct of armed conflict, when the UN General Assembly sought an advisory opinion on the lawfulness of the threat or use of nuclear weapons. In 1996, the Court gave its opinion, which largely endorsed the position of the nuclear powers: that there is no rule of international law prohibiting the use of nuclear weapons per se, but

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that the general laws of war apply to nuclear weapons as they do to conventional ones—including, crucially, a ban on the use of unnecessarily indiscriminate weapons. The Court was able to state that, because of their indiscriminate nature, the use of nuclear weapons would “generally” be unlawful. But on an evenly divided vote (which was therefore decided by the vote of the president), the Court carefully stopped short of holding that the use of nuclear weapons could never be lawful. It left open the possibility that their use might be legal in “an extreme circumstance of self-defence, in which the very survival of a State would be at stake.” Early in the twenty-first century, the Court became involved, for the first time, in the long-running dispute between Israel and its various Arab neighbors. In 2004, the UN General Assembly obtained an advisory opinion as to the lawfulness of Israel’s construction of a barrier between its territory and that of the occupied West Bank of the Jordan River. It has been observed that the Court held Israel to be in violation of the Palestinians’ right to selfdetermination. It made a number of other findings against Israel, including violations of the Covenant on Civil and Political Rights. It also held the Israeli policy of building settlement for its own population in the Occupied Territories to be a violation of the Geneva Convention rules on occupation of territory. Finally, the Court pronounced that the right of self-defense (i.e., military action) cannot be invoked against terrorism that occurs within an occupied area. The occupying state must instead use the mechanisms of the criminal law.

The End of the Cold War The ending of the Cold War was heralded by the program of perestroika (literally “restructuring”) launched by the Soviet leader Mikhail Gorbachev after 1985. It was a heady period, when it sometimes seemed as if a day did not pass without some kind of radical departure from past ways. The new spirit was evident in the international legal profession, too. In 1988, two socialist lawyers, Rein Mullerson and V. S. Vereshchetin (a future World Court judge) presented a paper on “New Thinking in International Law.” The changes announced were actually less than drastic, but a fresh spirit was certainly in the air. There was now to be increased recognition given to the interdependence of states (with less insistence on state sovereignty and independence),

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approval of voluntary limitations of state sovereignty, and enhancement of the role of nongovernmental groups in world affairs. The Brezhnev Doctrine was quietly dropped—to the point that its very existence was often denied. Kovalev’s 1968 Pravda article, it was explained, reflected only the personal views of its author and not any policy of the Soviet state. As interesting as these developments were to international lawyers, political events attracted greater attention from the world at large—culminating in the end of the Cold War itself in 1989, with the dramatic breaching of the Berlin Wall and subsequent reunification of Germany. One result of these changes was to raise the tantalizing possibility of ending the long deadlock of the UN Security Council, enabling that body to perform its role as a global watchman against aggression and other threats to the peace. An early sign that this might be so occurred in 1990–91, in the wake of the abrupt takeover of Kuwait by Iraq. A global coalition was formed, with UN Security Council approval, that forcibly expelled the Iraqi occupying forces from Kuwait. This marked only the second time in the UN’s history (after the Korean War of 1950–53) in which a UN-supported armed force had been assembled to repel an aggressor. It looked as if the reign of the rule of law in international affairs might be under way at last. Hope was certainly in the air. President George H. W. Bush of the United States (a former ambassador to the UN), announced to the American Congress in September 1990, in the midst of the Kuwait crisis, that the world was now “in sight of a United Nations that performs as envisioned by its founders.” A New World Order, he proclaimed, was in the making. He described it as a world quite different from the one we’ve known. A world where the rule of law supplants the rule of the jungle. A world in which nations recognize the shared responsibility for freedom and justice. A world where the strong respect the rights of the weak. Another sign of the new world was action taken—or at least authorized—by the UN Security Council in the wake of a military coup d’état in Haiti in 1991, which overthrew an elected civilian government. Such things had happened on countless occasions since 1945 with no reaction by the UN. But this occasion was different. The Security Council ordered mandatory economic sanctions against the military regime in 1993. The following

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year, it went a long step further, by authorizing member states to use armed force—or “all necessary means” in the standard diplomatic euphemism—to overthrow (or, more diplomatically, “to facilitate the departure” of) the military rulers. In terms of high drama, it was no match for the deposition of Emperor Frederick II by Pope Innocent IV in 1245, but it marked the first occasion in which an international orga nization explicitly instigated a change of regime. In the event, an actual invasion of Haiti by the UNsupported force did not prove necessary. At the last moment before the arrival of the force, the military government agreed to surrender power. The end of the Cold War was not, however, an altogether peaceful affair. In Yugoslavia, it brought civil wars, first in Croatia (in 1991–92) and then in Bosnia (1992–95). These struggles were marked by massive civilian casualties and displacements (the ominous expression “ethnic cleansing” entered the world political vocabulary at this time). The single most notorious event was a massacre of some eight thousand people near the town of Srebrenica in Bosnia in 1995. The World Court became involved when two claims were brought before it for violations of the Genocide Convention—the first ones since its drafting in 1948. The first of the claims was by Bosnia against Serbia, chiefly regarding the massacre at Srebrenica. The Court’s ruling, handed down in 2007, held the Srebrenica killings to have been an act of genocide. It also held that Serbia had violated the convention—but only in the somewhat restricted sense of having failed to “prevent and punish” the genocide in Srebrenica. It was exonerated of the more serious charge: of having actually instigated the atrocity as a matter of official policy. The other claim was also against Serbia, this time by Croatia, which alleged that the Serbian government had orchestrated ethnic cleansing and large-scale destruction in the Knin region of Croatia in 1995. As of 2013, the Croatian case (together with counterclaims by Serbia) was still in process.

The Proliferation of Tribunals It was not only in the World Court that international legal business picked up sharply after 1980. One of the clearest signs of the international-law renaissance was a steep increase in the number of tribunals that were established in a variety of specialized fields. One of these areas was economic relations. There was a dispute-settlement mechanism associated with the

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General Agreement on Tariffs and Trade (GATT), although it was not frequently used. That changed when the World Trade Organization (WTO) was created in 1995. One of the centerpieces of the WTO was a dispute-settlement mechanism, which immediately began to produce a large volume of case law on matters relating to international trade. For investment matters, there was a body called the International Center for the Settlement of Investment Disputes, which was established in association with the World Bank in 1966. Somewhat like the P.C.A., it was not a standing court, but rather a mechanism for the creation of arbitration panels on an ad hoc basis to resolve disputes between states and private investors. In the late 1990s, a significant increase in the center’s activity began, so that, by 2011, over three hundred arbitrations had been arranged. In about half of these, awards were made in favor of private-party claimants against host countries. One of the most significant developments in the area of international economic law was, ironically, an offshoot of the Tehran Hostages crisis of 1979– 81. It was noted that the crisis was resolved, in 1981, by agreement between Iran and the United States. In addition to providing for the release of the hostages, that agreement established a mixed-claims commission to adjudicate claims by the two countries against one another—including claims by private parties. A large number of these were by American investors seeking compensation for nationalizations, breaches of contract, and similar measures. As a result, the Iran–United States Claims Tribunal produced a significant body of case law in that area. Another specialized area was the law of the sea. Among the innovations of the 1982 Law of the Sea Convention was the establishment of an International Tribunal for the Law of the Sea, located in Hamburg. Comprising twenty-one judges, it began functioning in 1996. By 2011, nearly twenty cases had been submitted to it, one for an advisory opinion and the others involving disputes between states. About half of these related to the convention’s requirement of prompt release of foreign vessels and crews taken into custody. Human-rights law was another specialized area with a burgeoning volume of case law. It has been observed that, in 1976, the International Covenant on Civil and Political Rights finally entered into force—along with its Optional Protocol, which provided for claims by individuals against states to be brought before the Human Rights Committee. The committee was not,

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strictly speaking, a court. But in its consideration of individual allegations of violations of the covenant, it operated effectively in a judicial capacity. In the early years, the number of states that adhered to this protocol was modest, but it grew steadily over time, so that by 2012 over 110 states were parties to it. Similarly, case law was slow to emerge, but by the 1990s, it was growing into a torrent. There was analogous provision for individual applications against states under the Convention against Torture of 1984. This established a body called the Committee against Torture to adjudicate the claims. Other treaties that provided for individual claims included the Conventions on Racial Discrimination (of 1966), on Discrimination against Women (of 1979), and on Rights of Disabled Persons (of 2006). In 2008, provision was made for an individual-application procedure for the Covenant on Economic, Social, and Cultural Rights. It entered into force in 2013. There were specialized human-rights tribunals at the regional level, too. The first one was the European Court of Human Rights, established in 1959 and situated in Strasbourg. Its function was to adjudicate claims made under the European Convention on Human Rights (concluded in 1950). It was only from the 1980s, though, that the Court had a caseload of significant size. A similar body in the Western Hemisphere, the Inter-American Court of Human Rights, located in San José, Costa Rica, was set up in 1979, to decide claims under the American Convention on Human Rights (drafted ten years earlier). An African Commission on Human and Peoples’ Rights began operation in Banjul, Gambia in 1986, on the basis of an African Charter of Human and Peoples’ Rights concluded five years previously. This was bolstered by an African Court on Human and Peoples’ Rights, which began operation in 2006 in Addis Ababa, Ethiopia, although its seat was soon moved to Arusha, Tanzania. As of the end of 2012, however, only six countries had opted to allow individual applications to be brought against them in the Court. In combination, the output of these various human-rights tribunals was prodigious. The result was that the international law of human rights became immensely rich and detailed. Lauterpacht would have been both gratified and amazed at this development. (He did not live to see it, as he died in 1960.) Even more amazing, though, was the fulfillment, in the 1990s, of another long-held aspiration, in the field of international criminal law.

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International Criminal Courts The end of the Cold War brought the revival of a post–World War II dream that many had thought to be definitively dead: the establishment of a permanent international criminal court to function as a sort of ongoing Nuremberg Tribunal. It will be recalled that the project had been abandoned in the 1950s because of an inability to agree a definition of aggression. In the 1990s, however, in the face of a global outcry against the various atrocities committed in the course of the civil conflicts in Yugoslavia, plans for an international criminal court were hastily revived. Public pressure led the UN Security Council, in 1993, to establish a tribunal to prosecute individual persons accused of international crimes occurring during the breakup of Yugoslavia. The tribunal, situated in The Hague, began operations the following year. This Yugoslavia Crimes Tribunal was given jurisdiction over three types of crime: genocide, crimes against humanity, and war crimes. (Aggression was not included.) Genocide was now a criminal offense with a stated legal definition—set out in the Genocide Convention of 1948—and not merely a general term of outrage or abuse. Unfortunately, though, the legal definition and the “popular” conception of genocide diverged considerably. According to the popular perception, genocide is large-scale killing, motivated by racial, religious, or ethnic hatred. The technical legal definition, however, is different. It does require killing (or similar oppressive acts), but it does not require that the acts actually be carried out on a large scale. Instead of focusing on the size of the victim group, the legal definition of genocide concentrates on two other elements: the nature of the victims, and the mental state of the perpetrators. The victims are required to be members of a targeted racial, ethnic, national, or religious group. More important—and problematic—is the state of mind of the perpetrators. They must intend to commit not only the killing itself, but, in addition, they must harbor a broader, long-term intention: to “destroy” the victim group “as such,” either in “whole or in part.” In legal terms, this is a highly demanding standard—especially considering that the requisite state of mind must be proved beyond a reasonable doubt. For this reason, prosecutions for genocide at the Yugoslavia Crimes Tribunal were few. Much more useful, from the standpoint of prosecutors, was the offense of crimes against humanity. This was given a rigorous definition in 1993, in the

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Statute of the Yugoslavia Crimes Tribunal, which differed somewhat from the general description that had sufficed at the Nuremberg Trials (where, it will be recalled, crimes against humanity played a very subordinate part in the proceedings). A crime against humanity is what might be called a contextual crime. That is to say, it consists of the commission of certain actions— not, however, in isolation, but as part of a broader drama. That broader drama is an attack on a “civilian population.” The specific act of, say, murder or torture, when done on its own, is simply an ordinary crime. But if it is done as part of an orchestrated attack on a civilian population, then—but only then—it becomes a crime against humanity. Crimes against humanity proved to be much more useful to the prosecutors at the Yugoslavia Tribunal than genocide because convictions were much easier to obtain. The reason is that, for crimes against humanity, there is no requirement of an ultimate or long-term intention, as there is for genocide. It is sufficient if the accused person intended to commit the specific act (such as murder or torture), while knowing that the act was being done as part of an attack on the civilian population. These elements are significantly easier to prove than the long-term intention required for genocide. Crimes against humanity are also very useful (to prosecutors) in that subordinate persons—the “cogs in the machine,” as it were—can readily be convicted. The crime of genocide, in contrast, is directed, in effect, only at the leadership. The reason is that, in practical terms, the necessary long-term intention is likely to be provable (if at all) only against the leaders and not the followers. For these reasons, there were many convictions in the Yugoslavia Crimes Tribunal of persons for crimes against humanity, and few for genocide (though these included the Srebrenica massacre). It was significantly otherwise, though, for the second international crimes tribunal created by the UN Security Council: the International Criminal Tribunal for Rwanda. This was established by the UN Security Council in 1994, to deal with the massacres of that year. It began operations in 1997, in Arusha, Tanzania. In the press, the Rwanda atrocities were universally characterized as genocide—and in this instance, the use of the term by the media was borne out in the legal judgments. The Rwanda Crimes Tribunal produced the fi rst prosecutions and convictions for genocide in the history of international litigation. The fi rst person to be convicted (after a guilty plea) was Jean Kambanda in 1998. No minor underling, he had

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been prime minister of the country at the time of the killings. By 2013, over twenty-five convictions for genocide had been handed down by the Rwanda Tribunal. There was criticism of the Yugoslavia and Rwanda Tribunals for the slow pace of their proceedings. Both bodies were still in existence at the end of 2012, although nearing the ends of their respective tasks (finally). The Rwanda Tribunal was marred by some corruption incidents. It was also accused of bias, for its decision not to indict anyone associated with the new, postgenocide government—which had allegedly resorted to brutal methods of its own in taking power and halting the killings. On the whole, though, the achievements of the two tribunals were impressive. In all, 161 persons were indicted by the Yugoslavia Tribunal, and all of them were (eventually) apprehended and brought to The Hague for trial. By mid-2012, over 120 cases had been concluded. By 2013, seventy-five persons had been tried by the Rwanda Tribunal, although nine indicted persons remained still at large. Sixty-three of these accused parties had been convicted, many of them for genocide. These experiences stimulated the taking of a bolder step yet: the creation, at last, of a permanent International Criminal Court. A conference was held in Rome in 1998 and produced a statute for the tribunal, which entered into force in 2002. It is located at The Hague, alongside the World Court. Four crimes were placed under its jurisdiction: genocide, crimes against humanity, war crimes, and aggression. (Not until 2010, however, were the states finally able to craft a definition of aggression.) The Court (like the Yugoslavia and Rwanda Tribunals) was given its own in-house prosecution division, empowered to bring cases on its own initiative. This meant that the Court would not be dependent on states or on the UN Security Council for its cases. It was given jurisdiction over all acts committed either in the territory of a state party or by a national of a state party (provided that the act was committed after the relevant state’s ratification of the Rome Statute). In addition, there was a provision for conferral of jurisdiction onto the Court by decision of the UN Security Council. In its first decade of operation, all of the Court’s cases concerned African countries. The governments of four countries—Uganda, the Congo, Central African Republic, and Mali—expressly asked the Court to take action regarding events in those states. These related to civil conflicts. In two other

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cases (Kenya and Ivory Coast), the prosecution ser vice initiated the proceedings. Both of these involved alleged atrocities associated with electionrelated violence. Two situations were submitted by the UN Security Council: Sudan in 2005, in connection with repression and insurgency in Darfur, and Libya in 2011, concerning civil conflict connected with the overthrow of the Qaddafi government. In sum, the international legal scene after about 1980 was a hive of activity, in marked contrast to the relatively fallow period of the previous decades. With so much to do, it may be wondered whether international lawyers had the time or inclination to ponder whether their discipline might itself be undergoing important changes. There were discussions along this line, although they continued to be largely along the lines already mapped out.

New Intellectual Trends The writers of the interwar period gradually passed on. Kelsen retired from teaching in the 1950s. In the 1960s, Hudson, Korovin, Lauterpacht, and Scelle all died, while Wright, Potter, and Wellington Koo ceased to be active. (Koo, incidentally, left a culinary as well as a juridical mark in world history, by having the dish “cabbage Wellington” named after him.) Jessup retired from the World Court in 1970. Wolfgang Friedmann died in 1972 (by gunfire, as a bystander to an armed robbery incident in New York City). The last major links to the interwar period were Schwarzenberger and Lasswell, who both remained active until the mid-1970s. In the generation that succeeded these figures, there was much intellectual ferment, but it continued along lines that were recognizable from the interwar era, and even from the nineteenth century. The four major approaches to international law continued to be in evidence: positivism, natural law, liberalism, and solidarism. In the positivist perspective, there were no major new departures in the post-1980 years. But neither was there any shortage of firm supporters. In Britain, Ian Brownlie continued to be a prominent figure in this camp, as did Prosper Weil in France. Another notable supporter, also from France, was Pierre-Marie Dupuy, whose lectures at the Hague Academy in 2002 presented

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a vigorous exposition of the mainstream positivist stance, stressing the centrality of state sovereignty in international law. The other three schools of thought retained their basic character. But within them, there were some new departures and fresh twists.

Solidarism and Consensus The end of the Cold War era held out a promise of consensus on a truly global scale. Its best-known prophet was the American political scientist Francis Fukuyama, who welcomed the new era, in a memorable phrase (borrowed from Hegel), as “the end of history.” By this was meant, of course, not the end of historical events, but rather the end of clashes between grand rival ideologies. Authoritarian socialist ideas had gone down to comprehensive defeat, leaving liberal capitalism in sole command of the field. In such an atmosphere, the ethos of the New Haven School, with its spirit of consensus, might be expected especially to thrive. It could even be said that, with the end of the Cold War and the collapse of the Soviet Union, its campaign for the global promotion of human dignity had been triumphantly vindicated. To a significant extent, this was so. The general spirit of the New Haven School was evident in the work of Thomas Franck, of New York University. Franck, whose writing was much more comprehensible than that of Lasswell and McDougal, saw the end of the Cold War as “heralding a forthcoming transformation in international law.” More generally, he looked with approval upon the transformation of the world from “an anarchic rabble of states” into what he called “a socialized community.” By this, he meant a genuine global society in which an array of organizations (and even individuals) cooperated to achieve advances in such areas as environmental protection, relief of poverty, and advancement of human rights. Franck’s most distinctive contribution to the consensus way of thinking was an insistence on what he called “fairness” as the critical feature of international law. Fairness, he explained, has two principal features. The first is procedural justice or legitimacy. The second is an allocation of resources that is regarded as being, in some sense, at least minimally satisfactory. A system that possesses these two features would be fair (in Franck’s meaning) and, as such, would be accepted as legitimate by the states which are

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components of it. It is this perception of legitimacy that, to Franck, gives international law its binding force. Central to Franck’s consensus approach to international law was a downplaying of coercive sanctions in favor of a system of free and voluntary compliance. It is vital, in Franck’s view, that international law be voluntarily adhered to by states. In this regard, Franck was the clear legatee of nineteenth-century neo-Kantian thought. Evident, too, is the heritage of certain functionalist writers of the interwar period, who had opposed a coercive, sanctions-based system of international law. Clearest of all is the influence of the New Haven School, with its optimism that consensus is possible and that it will be based on broadly liberal principles of fair play. In this regard, Franck expressly invoked the work of the influential American political theorist John Rawls in support of a basically democratic and egalitarian system. Another addition to the expansive solidarist stable—also animated by a pronounced consensus outlook—was an approach known as constitutionalism. In some respects, constitutionalism is simply the most recent synonym for solidarism. That is, it is the thesis (together with its many ramifications) that the interests of the community as a whole should prevail over the rights and obligations of individual states vis-à-vis one another. The law that embodies this general community interest is seen as a sort of public law (or constitutional law) of the society, in contrast to the private law (or contractlike) character of the bilateral relations of the states with one another. A particularly clear and thorough presentation of this thesis was made by the German lawyer Bruno Simma, a professor at the University of Munich (and future World Court judge), in a course of lectures at the Hague Academy in 1994. These can well be regarded as the classic statement of the solidarist philosophy of international law. Constitutionalism was not newborn in the late twentieth century. It had roots in the interwar period (as its proponents were well aware). In the 1920s, Verdross had advanced the idea of a constitutional order for the international community. (Significantly, Simma had collaborated with Verdross in academic writing early in his career.) In Britain, Arnold McNair had spoken of certain treaties as creating a “constitutional international law.” In the early post–World War II period, Quincy Wright had proclaimed the advent of a “new international law” in which the various states formed “a world

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union,” with the UN functioning as a kind of global federal government on the obvious model of the federal system of the United States. The clearest intellectual ancestor of constitutionalism was Scelle, who had presented his monistic, federalist system in explicitly constitutional terms. Among the leading latter-day constitutionalists have been a number of German writers. The prominent role of Simma has been noted. He went on to serve on both the I.L.C. and the World Court. Christian Tomuschat, who taught at the University of Bonn and later at Humboldt University in Berlin, has been another important figure, as have Andreas Paulus of the University of Göttingen and Bardo Fassbender of Humboldt University. Elsewhere in Europe are Jan Klabbers of the University of Helsinki, Anne Peters of the University of Basel, and Geir Ulfstein of the University of Oslo. In the United States, a leading figure has been Joel P. Trachtman of the Fletcher School of Law and Diplomacy at Tufts University. It has not been envisaged that the “constitution” of the international community would be a single written document—at least not in anything like the immediate future. Rather, the constitution is seen as the set of values for a community, whatever their source might be or wherever they might find expression. The international constitution is therefore unwritten and everevolving through practice, more in the manner of the British constitution than of the written German or American ones. Constitutionalism therefore refers to a general consensus of values. This emphasis on consensus and values indicates a strong intellectual bond with the New Haven School. Several fundamental tenets of the constitutionalist version of solidarism are of note. One is the principle of the rule of law. Power should be exercised not arbitrarily but according to rules, and in the interest of the general community. Constitutionalists therefore have an interest in the judicial reviewability of political bodies—including the UN Security Council. In this sense, constitutionalism is a sort of legalistic counterpart of the New Haven School. Where the New Haven focus was on the decision making itself—that is, on ensuring that the “right” decisions are made in the first place—the constitutionalist strategy has been to ensure that there is some kind of judicial supervision that can override or correct “wrong” decisions. Another central feature of constitutionalism is a stress on organizations, and systems of order in general, as living, evolving regimes. This marks constitutional systems off from “ordinary” treaties, in that the function of an

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ordinary treaty is to implement the joint will of the parties that concluded it. Constitutional systems, in sharp contrast, have a will or purpose of their own, distinct from those of the individual states that are parties to them. They are ongoing, autonomous regimes—living, growing, evolving, constantly self-adjusting in the face of ever-changing circumstances. Álvarez, in a dissenting opinion from the World Court in 1951, expressed this point vividly, with regard to multilateral conventions generally. Such conventions, he insisted, must not be interpreted with reference to the preparatory work which preceded them; they are distinct from that work and have acquired a life of their own; they can be compared to ships which leave the yards in which they have been built, and sail away independently, no longer attached to the dockyard. These conventions must be interpreted without regard to the past, and only with regard to the future. It will be recalled that the nineteenth-century positivists had been sensitive to the difficulty posed by seeing international law as a set of rigid rules protecting vested rights. Such a conception of law was essentially a static, conservative one. But where the positivists had offered war as a mechanism for creating new rights and extinguishing obsolete ones, the constitutionalists envisage a peaceful process—a legal system that contains within itself the capacity to adapt to changing times. The constitutionalists have also had a strong concern over what they call the “fragmentation” of international law. This is, in a way, a sign of the embarrassment of riches that was now besetting the field. There has come to be a fear that there might be too much international law in the world rather than too little (as had always been the concern in the past). In particular, the worry has been that there are too many specialized subsystems—for example, economic law (which in turn comprised subcategories of law in the fields of trade, investment, and intellectual property), human-rights law, environmental law, law of the sea, criminal law—and that the norms of these subsystems might very well turn out to be inconsistent with one another. An illustration of how this could be so was offered by Garrett Hardin, an ecologist at the University of California at Santa Barbara, in a seminal article published in 1968, entitled “The Tragedy of the Commons.”  He was con-

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cerned over incompatibility between traditional liberal values and the urgent need to protect the environment. His principal concern was overpopulation. Part of his proposed solution was drastic: bringing an end to what Hardin called “our present policy of laissez-faire in reproduction.” The principle of “freedom to breed,” in combination with the belief that all persons have “an equal right to the commons,” was seen as producing a global tragedy. Hardin was expressly critical of the Universal Declaration of Human Rights for exacerbating the situation by its assertion of a fundamental right to marry and found a family. “If we love the truth,” he warned, “we must openly deny the validity of the Universal Declaration of Human Rights.”  Nor, maintained Hardin, would it suffice simply to urge individuals to exercise restraint and responsibility. Some form of compulsion will be necessary. “The only way we can preserve and nurture other and more precious freedoms is by relinquishing the freedom to breed, and that very soon.”  In support of that thesis, the noted economist Kenneth Boulding proposed (apparently in all seriousness) that human breeding be licensed, by means of the issuance of tradable permits to have children. With only a fi xed number of permits issued, market forces would channel reproduction activity in the direction of those willing or able to acquire the necessary licenses. The way to resolve such clashes of rights and values, in the opinion of constitutionalists, is to devise some kind of “master system” of norms. Where traditional international law adjudicated disputes between states, the constitutionalist version would adjudicate disputes between rival subsystems or rival sets of rules. The quest for a master system of norms has been in some ways reminiscent of the search of Kelsen and the Vienna School for a basic norm on which to ground the whole of international law. But where Kelsen had posited the existence of a single basic norm, which was inevitably very general in nature, the constitutionalists envisage a whole system of rules. Moreover, these rules are not seen as abstract and formal, in the manner of Kelsen’s normative system, but instead as fairly specific, concrete, and substantive. It has been envisaged that constitutionalism in action would function in practice somewhat along the lines of the American and German federal models. An overarching rule of law would operate in a continuous fashion to resolve clashes of jurisdiction and conflicts between substantive norms,

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and also to deal with abuses of powers and rights. Constitutionalism is therefore a program of eternal vigilance, in which principles of separation of powers and judicial review of government actions play a central role— concepts clearly borrowed from national constitutions. The goal is to ensure the compatibility of the various subsystems with one another, and with the overarching values of the community at large. These include such concerns as democracy, protection of human rights and the environment, and the reduction of poverty and inequality. The general spirit of the New Haven School is palpable in all of this. Constitutionalism also resembles the New Haven School in possessing something of a managerial or bureaucratic aura. Its natural milieu is the functioning of international organizations—in which trained managers bring rational order to various walks of international life, on the basis of the constitutional instruments. The staffs of these organizations could be seen as the dutiful and watchful custodians of general global interests. The organizations, in turn, would be subject to an overarching set of values to ensure that their operations would be compatible with one another. Constitutionalism is therefore a natural, in-house doctrine for international civil servants. Like the New Haven School before it, constitutionalism is open to the criticism of being excessively academic, with little to show in the way of actual effects on international law as it operates in the real world. There have been some doubts, for example, as to whether the feared fragmentation of international law really poses such a grave threat. The International Law Commission undertook a study of the subject and concluded, in 2006, that there was not really much of a problem. Traditional legal methods, such as the normal rules of treaty interpretation, are sufficient (at least for the present) to deal with potential conflicts between legal regimes or subsystems. More specifically, the study concluded that, even for such problems as did arise in this area, “no homogenous, hierarchical meta-system is realistically available” to deal with them. It may be that constitutionalism—yet again like the New Haven School—is best seen as a general reform program not closely tied to specific events in the real world. That may detract from its practical utility, but it may also ensure it a long life in the groves of academe, where a highly intellectual approach, combined with a strong commitment to liberal values, will often

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find a ready welcome. It may be that constitutionalism, like the New Haven School, will make its mark in the world by way of a general opening of minds, rather than through specific, identifiable marks of achievement. Closely related to constitutionalism, but with a somewhat different emphasis, is the program grandly known as global administrative law. It is a direct descendant of the St.-Simonian vision of the nineteenth century. Its principal champion has been Benedict Kingsbury, a native of New Zealand who has taught at New York University Law School, where Eagleton and Franck had been based. The program is basically a direct continuation of the law as marked out earlier by von Stein, Reinsch, and others in the nineteenth and early twentieth centuries, as well as by Potter in the interwar period. This heritage has been generously acknowledged by Kingsbury. Global administrative law, like constitutionalism, bears many of the hallmarks of the New Haven School, with its vision of law as being, in essence, a decision-making process. Like constitutionalism, global administrative law has been sharply focused on the rule of law, although it gives relatively little attention to legislative or judicial aspects of governance, focusing instead (as the name implies) on international administration, chiefly through international organizations. Its interests also extended to hybrid and private bodies, as well as to intergovernmental ones. In general, though, it was a close partner of constitutionalism.

Solidarism’s Dark Side Solidarism, it has been observed, has generally been suff used with an ethos of consensus. It has sought to remold international society through persuasion and the propagation of liberal values rather than through coercion or violence. In this regard, Comte’s motto of “Order and Progress” could be applied to solidarism as readily as to positivism. Solidarism has also been an optimistic philosophy in its belief that order and progress are reconcilable, that its goal of changing hearts and minds (the New Haven approach) or of bringing the rule of law to bear (the constitutionalist strategy) can succeed. It is possible, though, for solidarism to come in negative and pessimistic flavors, too. This became evident with the arrival of an overtly radical and purportedly new approach to international law, known as critical legal studies.

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Critical legal studies, in important part, was a delayed expression of the rebellious values of the 1960s. But it had historical roots further back, principally in American legal realism, which was distinguished by a belief that judicial decision making is governed not by objective rules or legal concepts, but instead by more immediate and material factors such as the social and economic backgrounds of judges. Critical legal studies has been firmly in the solidarist, or sociological, tradition of thought in its insistence on seeing the legal process as a product of the social milieu in which it operates. It has even been asserted that the “single most telling insight” of critical theory is the belief “that law is nothing but a repetition of the relationship it posits between law and society.” No one could ever accuse critical legal studies of engaging in triumphalism. On the contrary, it is strongly pessimistic in its outlook, seeing international law as “a discipline in crisis.” Traditional international law has been derided for its “doctrinal emptiness”—which has given rise, in turn, to “cynical manipulation.” The principal figure in the movement (as it could fairly be called) has been David Kennedy of Harvard Law School. He suggested the alternative label of “new stream thought” (which, however, failed to take hold). Another prominent adherent is Martti Koskenniemi of the University of Helsinki. He has brought a strong element of historical insight to bear, along with a measure of practical experience—as a legal adviser to the Finnish foreign ministry and as a member of the I.L.C. Koskenniemi is the author of the single best-known treatise from the critical school, From Apology to Utopia (1989). Of the earlier versions of solidarism, the one to which critical legal studies bears the greatest resemblance is the World Order Models Project approach. Like its predecessor, it offers a bottom-up perspective, as opposed to the topdown one of the New Haven School. The critical legal studies movement has gone further than the World Order Models group, though, in its principled rejection of consensus. It is a conflict theory, seeing a world of oppressors and victims. The solution is not to promote consensus, understanding, and togetherness between these groups. Nor is the solution to arm the victims with legal rights. Instead, the way forward is for the victims to become politically aware, to orga nize themselves, and to take power (somehow or other) from the oppressors. Human dignity is the ultimate end—as it has been for the New Haven School—but it will come about not through the

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spread of key values from elites downward to the whole population, but instead through the eventual triumph of the victims over the oppressors. Where the constitutionalists have worried about fragmentation of international law—while being confident that they could overcome it—the critical writers have been concerned about indeterminacy. Rules, insists Koskenniemi, are “few and ambiguous and loaded with exceptions.” Positivists cheerfully accepted the existence of gaps in the law and were content to wait patiently until they were filled. The critical group, however, has scented danger. The fear is that lawyers typically respond to gaps in the law by devising pseudosolutions in the form of grand-sounding general principles (the “utopia” part of Koskenniemi’s thesis). They then proceed to apply these in the ser vice of the material interests of ruling powers, that is, their governmental employers (the “apology” part of the process). Traditional legal analysis thereby becomes, in effect, an elaborate charade, with the end effect of ensconcing existing vested interests more firmly in power. The reality, Koskenniemi insists, is that the hallmarks of the international legal process are “[u]ncertainty and choice”—and that to assert otherwise, in the name of general principles, is to be either naïve or dishonest. There is no set of universal norms to which appeal can be made. Laws arise out of a complex web of particular social relations, which must be understood in their own terms, and not in terms of some (nonexistent) set of overarching norms. Koskenniemi explicitly favors “renouncing the search for a World Rule of Law.” This outlook naturally places the critical school in direct opposition to the constitutionalists, with their dedication to the rule of law and the search for global values. The constitutionalists have been attacked by the critical school for being too prepared to accept existing political and social arrangements without question. Kennedy has chided them for being too concerned about process rather than substance, too obsessive about making international government work effectively, instead of worrying about who was doing the governing. “Improving the machinery of government makes no sense,” he scoffed, “if scoundrels rule.” He has derided constitutionalism as “something of a game for intellectuals from the middle powers.” Critical legal studies, in contrast, has been more intent on changing the identities of the power holders than in fencing them in by constitutional principles and the rule of law.

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Hostility to liberalism has been another hallmark of critical legal studies. This is apparent in its strongly collectivist outlook. It is comparatively indifferent—or even actively hostile—to concerns of human rights and civil liberties. Kennedy has been critical of human-rights law for reducing people to the status of mere “right-holders,” an approach that “blunts awareness of diversity, of the continuity of human experience, of overlapping identities.” In place of liberties for individuals, bolstered by the rule of law (with these in turn fortified by legal sanctions or protective mechanisms), the critical school substitutes direct, and collective, political activism by formerly excluded groups. What is important, it insists, is that the excluded groups seize political, social, and economic power, not that they be the objects of paternalistic protection by existing elites. Like the New Haven School, critical legal studies would have nothing to do with the anti-intellectualism that sometimes characterized mainstream positivism. On the contrary, it is densely soaked in theory. But where the New Haven School’s heritage was in political science, social choice theory, and similar fields, the critical legal theorists have owed much to European structuralist thought in linguistics and anthropology. They tend to see law in terms of language—as a conversation, dialogue, rhetoric, or narrative, rather than as a set of overarching rules. Critical legal studies is therefore a combination of sometimes forbiddingly dense theoretical exposition with a ringing call to radical political action. In this regard, too, it bears some resemblance to the New Haven School. But it has strongly rejected the New Haven School’s elitist, managerial outlook, as well as its sunny optimism. Kennedy, for example, has bluntly criticized the New Haven group for being “associated with establishment social engineering and the status quo.” The aura of pessimism and negativity has imbued the critical-studies movement with something of an ethos of paranoia and resentment, thereby ensuring that it would be only a minority taste. But the movement was also marked by a brash determination to break out of established paths, along with a mission to penetrate appearances, unmask hypocrisy, and bring power to the oppressed. Like the New Haven School, of which it is a sort of negative shadow, critical legal studies may be said to have been an opener of minds more than a doer of deeds. But the value of opening minds should not be underestimated.

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New Directions in Liberalism—Feminist Critiques In the area of liberalism, there were some innovations too. The principal one was an attempt to articulate a feminist approach to international law. There was certainly no gainsaying that the field of international law has been an overwhelmingly masculine preserve throughout history. Prior to the twentieth century, the lone important female contributor to the subject was Christine de Pisan in the fourteenth and fifteenth centuries. Apart from her writing on the laws of war, she was a strong advocate of the advancement of women. Indications of gender-based analyses had appeared prior to the late twentieth century, though not from the pens of women. Bluntschli had posited that states and governments are intrinsically masculine—in contrast to churches, which are equally intrinsically feminine. More recently, the Dutch lawyer Cornelius van Vollenhoven, in the immediate aftermath of the Great War, foresaw that, in the future, women would assume increasingly prominent roles in what he called the coming “second age” of international law. The older, more traditional, male-crafted law of the previous era would then come to be “hated and detested by [the] warmer and more delicately sensitive heart” of the new international woman. Whether the feminists of the post-1945 era were best described as “delicately sensitive” might be a matter of some doubt. The two most prominent champions of feminism have been Hillary Charlesworth, of Australian National University, and Christine Chinkin, of the London School of Economics. To a large extent, feminist contributions to international law have been squarely in the liberal tradition, with its stress on the removal of arbitrary discriminatory barriers against disfavored groups. This aspect of feminism fitted comfortably into the broader human-rights movement. An important early step in this process was the drafting of the Convention on the Political Rights of Women in 1953. It was only in 1979, though, that an international convention was concluded for the comprehensive eradication of discrimination against women in all walks of life. In 1999, the convention was supplemented by an optional protocol that established two enforcement procedures. One was a provision for inquiries into grave and systematic violations of the convention. The other was a system of individual applications, comparable to that which exists for the Covenant on Civil and Political Rights.

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A second major contribution of feminists has been to raise the profile of specific issues in international law that are of special interest to women. These include domestic violence, which had largely been outside the purview even of international human-rights law. Another issue is human trafficking, sometimes done in conjunction with forced prostitution or sexual slavery. The law of armed conflict has been another topic of intense concern. There has been criticism that rape and other forms of sexual violence are not expressly identified in the laws of war as war crimes. If feminists have looked outward to the world at large in the quest to advance the position of women, they have also looked inward, to international law itself. The concern here has taken two principal forms. One is a campaign to raise the profile of women within the international legal profession. Charlesworth and Chinkin have been outspoken in their contention that sexism is a “pervasive, structural problem” in international law. It has even been contended that international law itself, as a system of ideas and rules, is masculine or patriarchal in nature. Charlesworth has suggested that she endorses this thesis, by her assertion that international law “implicitly excludes women by assuming a male norm.” International law has been accused of making, in general, too sharp a dichotomy between the public and private spheres of life. This is condemned as “an ideological construct rationalizing the exclusion of women from the sources of power.” It is also important, it has been argued, for international law to take account of the actions of nonstate actors, as well as of governments, into account if oppression against women is to be effectively ended. More generally yet, Charlesworth, in the spirit of the critical legal studies writers, has voiced a dark suspicion of the very idea of “neutral and impartial standards,” on the ground that they are merely “synonyms for male perspectives.” It has been contended, somewhat vaguely, that “the fundamentals of legal persuasion” need to be reexamined. Traditional international legal thought has been accused of “simply [reproducing] a masculine type of reasoning” In contrast, contended Charlesworth, “[f]eminist methods emphasize conversation and dialogue rather than the production of a single, triumphant truth.” In a similar vein, there is opposition to “the organization of legal materials in predetermined, watertight categories.” This has included criticism of liberal, rights-based approaches to international legal issues.

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At the same time, though, Charlesworth has held back from endorsing the thesis that there is necessarily any intrinsically and ineluctably feminist version of international law. She looks forward “to the day when issues of sex and gender will become less relevant,” with the concerns of “humanity” being correspondingly more significant. She also concedes that international law has not been a major oppressor of women—indeed, that international law “gives much greater attention to the position of women than almost any national legal system.” If the value of the various rival conceptual approaches are to be judged in terms of observable impact in the real world, then feminism would surely score at or near the top. Concern over the victimization of women in armed conflict, for example, was reflected in the 1990s, with the inclusion of rape as a potential component of crimes against humanity in the statutes of both the Yugoslavia and Rwanda Crimes Tribunals. Rape, along with sexual violence in general, was included in the Rome Statute’s definition of crimes against humanity. Furthermore, the Rome Statute’s provision on war crimes also expressly included sexual violence In addition, women steadily, if slowly, gained a higher prominence within the international legal profession in the years after 1970. Most conspicuously, they gradually became more prominent in international-law positions in law faculties and on courts and tribunals. The first woman ascended the World Court bench in 1985, when Suzanne Bastid, from France, was selected as a judge ad hoc by the Tunisian government, for an offshore boundary case against Libya. The first woman elected to a regular term on the Court was Rosalyn Higgins, from Great Britain, a professor at the London School of Economics. She was elected in 1995. In 2012, there were two women (of fifteen judges) on the World Court, one (of twenty-one) on the Law of the Sea Tribunal, ten (of eighteen) on the International Criminal Court, and two (of thirtyfour) on the International Law Commission. Women also achieved top positions in various international organizations, including the World Health Organization, UNESCO, and the IMF. The key UN High Commission posts—for refugees and human rights—have also been held by women. Male domination of the international legal world was certainly not a thing of the past by the early twenty-first century. But it had been significantly reduced.

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Natural Law The tenacity of natural law is one of the great testaments to the continuity of the human intellectual experience. No line of thought made a greater contribution to the development of international law— even if the positivists had little hesitation about kicking away the ladder once their forebears had climbed it. Since the nineteenth century, natural law had been relegated to the margins of the international legal scene. But it found a doughty champion in the late twentieth century in the form of Philip Allott of Cambridge University. In the manner of Le Fur, Allott harked back to the medieval rationalists—and (in spirit at least) even further, to the ancient stoics. His principal work, entitled Eunomia: New Order for a New World (1990), was aptly described by Koskenniemi as “unabashedly nonmodern.” A strongly rationalistic, speculative focus gives Allott’s work an affinity to that of Pufendorf and Wolff. The book begins, in good Euclidean fashion, with the setting out of four basic propositions. One of these is the assertion that “international law is the law of the society of the whole human race and of the society of all societies.” In the classic natural-law tradition, the human species is treated as a single great society or moral community. Not surprisingly, Allott has been contemptuous of the positivist picture of international law as merely governing relations between states. Allott’s self-proclaimed task has been to craft “a general theory of society and law which is potentially universal.” Making no more than token gestures to readability, he has sought to combine the intellectual coherence and comprehensiveness of Kelsen with the social-science perspective of McDougal. He paints a picture of consciousness as the driving force of human history in general and even speaks of “consciousness-creating-consciousness”—a sort of chain of development of ever-advancing collective mental stages attained, over time, by the human race. Like so many natural-law writers before him, he is a strong supporter of the principle of the natural sociability of the human species, looking forward to the time when international law will reflect and embody the imperatives of humanity as a whole instead of “the self-determined interests of so-called states.” This line of thought is reminiscent of the ideas of the French theologian and philosopher Teilhard de Chardin, who set out a grandiose scheme of

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collective human mental development (which in turn was reminiscent of the ideas of the medieval Spanish Muslim philosopher Ibn Rushd, or Averroes). The goal in Teilhard’s system was what he called Omega, which was basically the unification of all human consciousness into one, including a unification with God. Certain aspects of Allott’s theory are in tune with more modern thinkers. The constitutionalists and the global administrative law group, for example, both incline toward a progressive unification of the human race. In their case, however, the unification is to take place under a set of constitutional rules, or of bureaucratic or administrative dictates, rather than within the warm and vital bosom of a universal consciousness. Allott’s ideas are, in fact, a sort of quasi-religious or mystical counterpart of the constitutionalist and global administrative programs. It is hardly surprising, though, that most working international lawyers have felt more comfortable taking the constitutional and administrative paths and have accordingly resisted the allure of Allott’s remarkable neo-stoic-cum-neo-medieval confection. Perhaps they are the poorer for it.

Triumph—and Resistance It has been observed that in no ancient society was there a deity of international law. In more recent times, international law has been said to suffer from a deficiencies of a more characteristically modern kind: poor public relations, and the absence of a constituency. In the immediate aftermath of the Second World War, Clyde Eagleton ably articulated the problem: The great weakness of international law has always been that it has not commanded public interest and support. It has been faraway and mysterious—the sort of thing you read about in spy thrillers, but which you never touch as an individual. . . . [U]nless international law can be brought closer to the individual, unless he can see the benefits which it offers him as a person, unless he can feel the pull of loyalty and duty toward it, the average citizen will not give it . . . support.

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He called on international lawyers to “come out of [their] ivory towers . . . and work at the job of making international law a ser viceable institution for the individual human being.” Over the ensuing decades, it appeared that international lawyers had followed this advice. Perhaps all too earnestly. Since about 1980, international affairs have intruded ever more deeply into sundry walks of life that had once been thought to be the exclusive prerogative of individual states—from economic relations to environmental protection to human rights. International lawyers—the foremost consumers at this great transnational smorgasbord— would naturally be expected to look on this state of affairs with hearty (not to say well-fed) approval. Others, however, have been less pleased. International law may no longer be so far away from ordinary lives, but it continues to have something of an alien character, representing the preferences of distant elites with their potentially ominous-sounding agenda of “globalization” (a word coined in the 1980s). This globalization agenda could easily be regarded as more threatening than liberating. The increasing freedom of trade and investment, for example, brought fears on the part of local economic interests of being outcompeted by distant (and often low-paid) foreigners. On a broader level, fears have grown that economic liberalization leads to greater inequality, to environmental degradation, and to oppressive labor conditions in poor countries. There have also been worries that international human-rights bodies intrude too officiously into the national affairs of many states—without showing sufficient respect for the distinctive features of different cultures. The European Court of Human Rights, for example, while conceding that popular attitudes and the “moral climate” of a particular society are factors to be considered, held that it—and not the national authorities—has the final say on whether a given restriction on freedom is really “necessary in a democratic society.” Misgivings have been voiced within the legal profession, too. Eric Posner, of the University of Chicago Law School, warned of what he called, in a book published in 2009, The Perils of Legal Globalism. Posner defined legal globalism as “an excessive faith in the efficacy of international law” and alternatively as the belief that “international law transcends the interests of

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states and holds them in its grasp.” He protested against the legalistic approach to world affairs, as tending to degenerate into an excessive reverence for rules of law as ends in themselves rather than—as they should be— means toward the practical resolution of conflicts in the political arena. It was therefore not surprising that resistance to international law began to mount in several key walks of political life. Economic relations was one. By the end of the twentieth and beginning of the twenty-first centuries, it was apparent that there was significant opposition to economic globalization. In 1999, when the states of the WTO met in Seattle for the launching of a new round of trade negotiations, the opposition was in the streets, in force. The rioting that ensued led to the chaotic and embarrassing breakdown of the conference. In several other areas, developments in international law have sparked opposition to international law. Three in particular may be noted. One is in the area of criminal law, where the concept of “universal jurisdiction” has empowered state prosecutors to assume the role of global law enforcers. Second is the employment of armed force by states in the cause of human rights. The third area of concern has been the activities of international criminal courts. A brief exploration of each of these is in order.

Universal Jurisdiction The basic idea behind the concept of universal jurisdiction is simple: that any state in the world is entitled to prosecute persons who are suspected of having committed certain international offenses—without any regard to the nationality of either the suspect or of the victims, or to the place where the acts occurred. Universal jurisdiction is therefore, potentially, a very powerful weapon. It is intended to be. Its purpose is to maximize the scope for the punishment of especially nefarious criminals, by, in effect, licensing all states in the world to act as enforcement agents for international law. One important point about universal jurisdiction should be carefully noted. That is, that the prosecution in question takes place in the national court of the state that is acting, under that state’s national law. The content of that national law, however, derives from international law. Universal jurisdiction therefore does not involve trial before an international tribunal, in the manner of the Nuremberg or Tokyo proceedings. Instead, it should be

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seen as a substitute for such trials, implemented at the national, rather than the international, level. Universal jurisdiction has deep historical roots. The core idea was articulated by Cicero in the first century b.c., when he spoke of a pirate as “a common foe” of the world at large. An immediate implication was that there is no obligation to adhere to agreements with such rogues (ransom agreements, for example, need not be honored). But another consequence could be that anyone (or at least any established government) is allowed to take action against pirates on the high seas. In Cicero’s own time, the famous general Pompey did precisely that, mounting a successful military expedition against a pirate community based in Cilicia (in present-day southern Turkey) in 67– 66 bc. In the sixteenth century, Gentili pronounced pirates to be “common enemies” of humanity in general. As “scorners of the law of nations,” he maintained, “[t]hey ought to be crushed by all men.” From these sentiments, there grew to be a general acceptance that persons accused of piracy could be prosecuted in the courts of any state, regardless of the nationality of either the alleged pirates or their victims. Vattel was one of the earliest to hold explicitly that criminal proceedings in national courts could be brought against these scoundrels. No significant expansion in universal jurisdiction occurred until after World War II, when the idea was incorporated into the Geneva Conventions of 1949. In cases of suspected “grave breaches” of specified rules, states parties to the conventions are actually required to institute prosecutions—if necessary, invoking universal jurisdiction in order to do so. This marked the first occasion in history in which exercise of universal jurisdiction became mandatory instead of merely optional. On the whole, universal jurisdiction was long regarded as being of only marginal importance in practice, since it applied to so small a number of offenses—only piracy and grave war crimes. Over the years, though, the list began to grow, with concern over terrorist acts providing an important impetus. A major first step was a convention against aerial hijacking concluded in 1970. This effectively authorized states to deploy universal jurisdiction against suspected hijackers. A number of similar authorizations followed in terrorism-related areas, such as placing bombs on airplanes, hostage taking, maritime terrorism, and terrorist bombings.

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Universal jurisdiction also made a notable appearance in the humanrights field in 1984, when it was included in the Convention against Torture. This was especially significant, as that convention was directed specifically against torture by government officials—placing those officials at risk of prosecution in foreign courts. In addition, it was widely agreed that the two major international offenses of genocide and crimes against humanity should qualify for universal jurisdiction. This was endorsed by the European Court of Human Rights in 2007, regarding genocide. Without too much imagination, universal jurisdiction could be argued to apply to crimes against the peace as well (or aggression, in the later terminology). Perhaps it could be taken further yet and applied to environmentrelated crimes, race and sex discrimination, colonialism, and so forth. Advocacy groups of many stripes could press for the application of universal jurisdiction in the ser vice of their favored causes. Not surprisingly, misgivings began to grow that matters could get out of hand. States all over the world could appoint themselves as agents for the international community and then proceed to place persons on trial for an ever-expanding list of alleged acts, without any need for a material connection to the prosecuting state. But it was only around the 1990s that these dreams—or nightmares— began to come true. The leading role was taken by Belgium. In 1993, it enacted legislation giving its courts universal jurisdiction to hear cases of grave breaches of the Geneva Conventions. In 1999, it added genocide and crimes against humanity. On the basis of this law, several proceedings were undertaken in Belgian courts, in 2001–4, relating to the Rwandan genocide of 1994. In addition, the Belgian authorities issued an arrest warrant for the foreign minister of the Congo in 2000, accusing him of committing various crimes against humanity during the ferocious civil wars in that beleaguered country. On this occasion, however, the Congo government reacted by fi ling suit against Belgium in the World Court. One of its assertions was that international law did not allow the exercise of universal jurisdiction in cases of this kind. In the event, the Congo government declined to press the universaljurisdiction issue, so the Court did not rule on it one way or the other in its Arrest Warrant judgment of 2002. But one of the judges, Gilbert Guillaume from France, gave his views on the subject—and agreed with the Congo’s assertion. Piracy, in his opinion, is the only true case to which universal jurisdiction is applicable. Extending the principle to other crimes, he

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contended, would “risk creating total judicial chaos. It would . . . encourage the arbitrary for the benefit of the powerful, purportedly acting as an agent for an ill-defined ‘international community.’. . . [S]uch a development would represent not an advance in the law but a step backward.” The Arrest Warrant case had the effect of stimulating other African governments to lend their support to the Congo’s opposition to universal jurisdiction—or at least to abuses of it. In 2008, the African Union (AU), the principal organization of African countries, condemned “the abuse of the principle of universal jurisdiction by judges from some non-African countries against African leaders,” characterizing it as “a clear violation of the sovereignty and territorial integrity” of African states. It urged its member countries to refuse to execute arrest warrants issued on this basis. This spirited opposition had at least some effect. A committee of six independent experts was assembled by the Council of Europe (the European counterpart of the AU) to look into these objections. Among its members were the Italian lawyer, judge, and scholar Antonio Cassese, who served as a judge on the Yugoslavia Crimes Tribunal; the Algerian Mohammed Bedjaoui, a former World Court judge; and Chaloka Beyani, a prominent Zambian lawyer. It reported its conclusions in 2009. This expert group did not follow Judge Guillaume in altogether denying the applicability of universal jurisdiction to cases of serious human-rights violations. But it did conclude, rather delicately, that states which applied universal jurisdiction “should bear in mind the need to avoid impairing friendly international relations.” Such states should also “consider refraining from taking steps that might publicly and unduly expose the suspects, thereby discrediting and stigmatizing them” and possibly prejudicing the fundamental right to a presumption of innocence. The group also expressed the view that states in whose territories the crimes were allegedly committed should have “priority” over nonterritorial states. And it recommended that, when accused persons were government office-holders, states seeking to prosecute should refrain from issuing arrest warrants. They should instead issue only a “summons to appear,” to enable the suspect to present exculpatory evidence on his behalf. Opposition to universal jurisdiction was not confined to Africa. No less a luminary than American ex-Secretary of State Henry Kissinger added his voice to the concern over universal jurisdiction. He complained that the concept “has not been subjected to systematic debate, partly because of the

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intimidating passion of its advocates.” He warned that “[t]he world should think carefully about the implications of a procedure by which a single judge anywhere is able, essentially at his personal discretion, to assert jurisdiction over a citizen of another state for alleged crimes committed entirely in that other state.” The result, he lamented, is a risk of “substituting the tyranny of judges for that of governments.” Kissinger’s misgivings about universal jurisdiction were shared by his own government. Fearing that some of its officials might be prosecuted, the American government made it clear that, unless Belgium altered its legislation, NATO headquarters would be removed from the country. The Belgian government duly made two important changes, in 2003, to its universal jurisdiction legislation: first, providing that prosecutions could be instituted only at the request of the government’s federal prosecutor; and second, removing the right to bring civil actions for damages in conjunction with criminal prosecutions. In its ruling in the Arrest Warrant case in 2002, the World Court did impose one important barrier against the exercise of universal jurisdiction: disallowing its use against incumbent government officials such as diplomats, heads of state, and foreign ministers. But that still left former officials vulnerable once they left office. This was dramatically illustrated in 2000, when British courts held that ex-President Augusto Pinochet of Chile could be extradited to Spain to face accusations of torture committed during his tenure in office. In Spain, investigations were made in 2008–9 into the conduct of the former leader of China, Jiang Zemin, regarding alleged repressive actions in Tibet (although these were discontinued after a change in legislation). In 2009, a British court issued a warrant for the arrest of a former foreign minister of Israel, for the alleged commission of war crimes in the course of armed conflict in Gaza. The ex-minister carefully refrained from entering British territory, so the warrant was then withdrawn. In light of the principle of universal jurisdiction, travel plans for former state officials were in danger of becoming very complicated.

Humanitarian Intervention Another form that self-appointed enforcement of international law took was the more robust one of armed force in the cause of what became commonly

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known as humanitarian intervention. This was a right—or alleged right—of states to take armed action on their own initiative to protect foreign nationals from serious oppression by their governments. It resembles universal jurisdiction, in that international law provides the content of the law—while national governments supply the enforcement muscle. International law supplies, as it were, the soft ware, and state governments the hardware. As in the case of universal jurisdiction, no material connection between the intervening state and the persons being rescued is thought necessary. It has been observed that various figures in the solidarist camp had long supported the existence of such a right. Solidarist writers were far from united on the subject, though. Thomas Franck, for example, consistently with his general consensus outlook, strongly contested the legality of humanitarian intervention. Mainstream positivists were more united on the question—in opposition. Given their scrupulous respect for the principle of nonintervention, positivists might readily enough concede a moral case for humanitarian intervention, but not a legal one. After 1945, there was additional legal support for the case against the legality of humanitarian intervention, in the form of the UN Charter’s general ban on the use of armed force. But there was also, at least arguably, greater support in its favor as well, in the form of a generally higher concern for human rights. It was an excellent illustration of a painful conflict between values—support for oppressed peoples against vicious rulers versus the promotion of world peace. The lawfulness (or otherwise) of humanitarian intervention has been vigorously debated in academic circles for many years. It is probably safe to say that it is the single most contested issue in the whole of international law. In general, though, governments have been reluctant to invoke it as a justification for their actions. When India intervened in the Pakistan civil war of 1970–71, for example, its government refrained from giving humanitarian intervention as a defense for its action. The same was true in 1979, when the government of Tanzania used armed force to drive the tyrannical regime of Idi Amin from power in Uganda. There was, accordingly, a certain feeling that, while humanitarian intervention might be a fascinating intellectual conundrum, it was not a real presence on the world stage. That complacent attitude changed abruptly in 1999, when humanitarian intervention was explicitly invoked in the context of a crisis in Serbia. It

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arose out of repressive acts by the Serbian government in the province of Kosovo, which was largely inhabited by ethnic Albanians. An escalation of the repression in 1998–99 brought a reaction from Western governments, which attempted to broker a settlement. When that proved fruitless, and the atrocities continued, the NATO states embarked on an aerial bombing campaign to compel the Serbian government to stop its repressive actions and to accord the province a high degree of autonomy. This NATO operation did not have the approval of the UN Security Council (since it was clear that the Russian government was prepared to exercise its veto to prevent it). For a legal justification, some of the NATO governments invoked a right of humanitarian intervention instead. The Serbian government attempted to bring a legal challenge in the World Court against the lawfulness of the NATO action. In the very midst of the bombing, it hurriedly made a declaration of acceptance of the Court’s jurisdiction under the Optional Clause. It then immediately lodged a complaint against the NATO states for violation of the law prohibiting the use of armed force. Its most immediate request was for an emergency Court order to the NATO countries to halt the bombing. The Court declined to issue the order, on the ground that Serbia’s Optional Clause declaration granted jurisdiction only over disputes “arising . . . after the signature of the [Optional Clause] Declaration.” Although some of the bombing activity did take place after the Serbian declaration was filed, the dispute was held by the Court to have “arisen,” in legal terms, at the time that the bombing campaign commenced—which was prior to the filing of the Serbian declaration. Later, in 2004, the action was definitively dismissed by the Court, but on a different ground: that Serbia was not a UN member state at the relevant time, and consequently that it was not a party to the World Court’s Statute. For that reason, the Court had no jurisdiction to hear the claim. As a result, humanitarian intervention remained a live issue into the twenty-first century, with a judicial pronouncement on the subject still anxiously awaited.

The Backlash against International Criminal Courts One of the striking features of international criminal courts—as distinct from national ones—is that they do not recognize immunities for any gov-

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ernment officials, not even incumbent ones. Even the mightiest are therefore potentially within reach of international prosecution. This represents one of the greatest victories for human-rights advocates in their campaign against the impunity of officials for repressive acts. Nor have international criminal tribunals been slow to exercise this power. It has been noted that the first sitting head of state to be indicted by an international criminal court was President Milošević of Serbia, in May 1999 (in the course of the NATO bombing campaign over Kosovo). His trial in The Hague commenced in 2002—although it ended indecisively with his sudden death in 2006 in the course of the proceedings. The Milošević indictment was not an isolated incident. In 2003, President Charles Taylor of Liberia was indicted by a “hybrid” tribunal (as it was called), specially established by the Sierra Leone government in conjunction with the UN. Taylor was accused of facilitating various atrocities committed during the ferocious civil strife that took place in Sierra Leone. He, like Milošević, was apprehended only after leaving office. But once he was in custody, his trial proceeded to completion. In 2012, he was found guilty and sentenced to fift y years’ imprisonment (though, as of the end of that year, the case was on appeal). The first indictment of a sitting head of state by the International Criminal Court occurred in 2009, when an arrest warrant was issued for the president of Sudan, Omar al-Bashir. He stood accused of crimes against humanity, with genocide later added to the indictment, stemming from atrocities committed under his rulership in the Darfur region of Sudan. He greeted the news of his indictment with lighthearted contempt. He jeered that the indictment was not “worth the ink it is written with” and organized thousands of supporters to burn an image of the Court’s prosecutor in effigy. One of Bashir’s aides, in a slightly more measured response, dismissed the Court as “part of the new mechanism of neo-colonialism.” These were striking events, by any standard. At the same time, though, opposition to the International Criminal Court was growing. The attitude of the American government was especially striking. It declined to become a party to the Rome Statute, largely because of opposition to the independence of the prosecutor and to the relatively low role accorded to the UN Security Council. In addition, it strongly objected to the fact that American nationals could still be tried by the Court, even with the United States

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not being a party. This could occur if an American national committed an offense in the territory of a state party (e.g., in the course of military ser vice abroad). The U.S. government accordingly embarked on a campaign of concluding treaties with as many states as possible, in which those states obligated themselves not to send American nationals to the custody of the Court. The United States also enacted legislation in 2002 to shield its government officials from any possible prosecution before the Court. “[S]enior officials of the United States Government,” the Congress formally pronounced, “should be free from the risk of prosecution by the International Criminal Court, especially with respect to official actions taken by them to protect the national interests of the United States.” Invoking “a fundamental principle of international law that a treaty is binding upon its parties only,” the Congress pronounced that the United States “will not recognize the jurisdiction of the International Criminal Court over United States nationals.” It imposed a statutory bar against cooperation with the Court by American officials. More remarkably, it gave the president the authority “to use all means necessary and appropriate”—words eerily close to the standard diplomatic parlance for armed force—to effectuate the release of any American armed forces personnel or government employees held in the Court’s custody. There was a backlash against the Court among African countries, too. For one thing, there was unhappiness that all of the Court’s initiatives in its first ten years related to Africa. In addition, fears began to grow that criminal prosecutions might interfere with peace negotiations. These worries were most acute with regard to civil strife in Uganda. In 2005, the Court issued arrest warrants against five leaders of an insurgency in the northern part of the country. Concern began to be voiced that the criminal charges were interfering with the larger and more important priority of bringing peace to the strife-torn region. Among those contending that the indictments had undermined the negotiations was the Ugandan government official in charge of peace negotiations with the insurgents. It was pointed out that the Ugandan authorities were now unable to offer safe-conduct guarantees to the indicted leaders for the holding of peace negotiations. Nor could it credibly promise an amnesty to insurgents in exchange for an end to the strife. The government could, of course, promise that it would not take action, but it was not able to prevent the International Criminal Court from acting.

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Similar objections were voiced by the Roman Catholic archbishop of the area, who contended that peace negotiators would now be regarded by the insurgents as agents of the International Criminal Court. Worries were expressed that there would be fewer defections from the insurgent ranks, as members feared that future indictments might be brought against them. These various misgivings were reported to have a strong hold in the areas of Uganda that had suffered most seriously at the hands of the insurgents. Similar considerations were evident in the Congo, where a leader of an insurgent force was indicted by the International Criminal Court. The person in question, however, far from being arrested, was made a general in the Congolese army, in exchange for a promise to integrate his followers into the national armed forces. The Congo government pointedly declined to arrest him, on the ground that his presence was needed to maintain peace within the Congolese military. There were misgivings, too, about the indictment of President Bashir of Sudan. It was recalled that Milošević was arrested and brought before the Yugoslavia Tribunal only after he had been toppled from power. Concern was expressed that Bashir, and those like him, once indicted, had a strong incentive to cling to power for the longest possible time—with the possible effect of increasing the amount of suffering and repression inflicted on those under their rule. It became apparent that there was considerable support for Bashir’s plight on the part of other African leaders. The African Union requested the UN Security Council to postpone action on the case. When it failed to do so, the union responded by openly taking a collective stand in Bashir’s favor. In 2009, the Assembly of the AU expressly resolved that “the AU Member States shall not cooperate [in] the arrest and surrender of President Omar El Bashir.” Bashir certainly had little trouble traveling to various African countries for conferences or meetings with fellow heads of state. In 2010, he visited Chad and Kenya and, in the following year, Djibouti—all of which were parties to the International Criminal Court and consequently under a legal obligation to arrest the fugitive and dispatch him to The Hague. None of these governments took action against him. The Court responded by formally notifying the UN Security Council, and the other state parties to the Court’s statute, of these visits. That brought no response. “I have not felt

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[any] restrictions of movement,” Bashir cheerfully confirmed in an interview with a Western magazine. In December 2011, the judges at the International Criminal Court became slightly bolder, issuing formal findings of noncooperation against Chad and Malawi—that is, of breach of the Rome Statute—for failing to arrest Bashir on visits to those countries, and notifying the UN Security Council of these defaults. In 2013, a second finding was issued against Chad in the wake another visit by Bashir. Still, the council took no action. The government of Malawi responded by threatening to withdraw from the International Criminal Court. The AU policy of noncooperation with the International Criminal Court resurfaced in 2011, after Colonel Muammar Qaddafi, the leader of Libya, was indicted for crimes against humanity committed while attempting to suppress an insurgency. The AU Assembly stated that the indictment “seriously complicates the efforts aimed at finding a negotiated political solution to the crisis in Libya.” It then resolved that member states not cooperate in the execution of the warrant. This matter lost its relevance, however, with Qaddafi’s death in the course of the uprising.

Inching toward a Future These various developments of the early twenty-first century provided further evidence—as if it were needed—that the efficacy of international law is not something that can be taken for granted. It never has been. Throughout history, international law has been critically dependent on a general willingness of governments to abide by it. This willingness has been explained (as has been seen) in a wide variety of ways—as a command of natural law, as international legislation by way of customary practice, as tacit or explicit agreement, as a consequence of a common juridical conscience, as a function of self-restraint and due regard for the rights of others, as rational selfinterest on the part of actors, as a fear of sanctions that offended parties might inflict, and doubtless many more besides. To some extent, international law does not differ so much from national law on this point. A national legal system, too, will be ineffective if it does not have the support of the population that it governs. Within nations, though, a general consensus can generally be articulated more clearly than on the global scene, and a dense network of institutional machinery—from police forces to courts, to

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schools and social work agencies—is constantly at work to instill an ethic of obedience. International law, lacking this elaborate institutional network, is necessarily more dependent on voluntary, uncoerced cooperation by its subjects. One way to achieve this is by mobilizing populations within the various states in the cause of a global rule of law. Eagleton regretted, in the 1940s, that this had not yet taken place. A half century later, it would be difficult to say whether things had changed significantly. International law remained heavily reliant on the good will of the governments that are subject to it. Whether this is a healthy state of affairs has been, and continues to be, the subject of vigorous debate. One of the more remarkable facts of world history, however, is how well this precarious mechanism of largely voluntary compliance actually works in practice. It is no small challenge to explain satisfactorily just how this could be so. The biochemistry of oxytocin might provide some clues here. But our own exploration has been in a rather different direction. It has involved looking at the concrete challenges that have arisen in the world of interstate relations, and at the various schools of thought that arose to make sense out of them. Those schools of thought have been remarkably stable, at least in general outline, since the late nineteenth century. Perhaps that is no bad thing. It may be a healthy sign that international lawyers have become better at doing things than at thinking thoughts, better at constructing institutions on the ground than speculative systems in the libraries (if not, indeed, in the clouds). Francis Bacon’s spiders may be less in evidence than formerly—for better or worse—but his bees and ants are busier than ever. In the early twenty-first century, there was every indication that much remained for them to do.

Conclusion

t would be pleasing to report, by way of rapid summation, that the history of international law has been a steady forward march, a progressive colonization of hitherto barbaric and anarchic lands by valiant pilgrims of the Rule of Law, shining ever brighter light into the hitherto dark corners of international practices. Sadly, that is a difficult case to make. It may even be wondered whether, in fundamental conceptual terms, there has been any advance at all since the most ancient days of which we have records. It was observed that so-called international law in those earliest times consisted of nothing more than an aggregation of practices devised by states to bring a modest degree of predictability to an essentially anarchic world. Some will harbor uneasy suspicions that international law in the early twenty-first century could be described, all too accurately, in just those terms. Quantitative advances can certainly be conceded. States interact with one another far more frequently in modern times than they did many centuries ago. The expansion of the UN Treaty Series (over twenty-five hundred volumes and counting) marches inexorably onward. In some respects, international law may be seen as one of humanity’s greatest monuments to the superiority of practice to theory. Laws are made, even in very large volume, and (often) obeyed. But there remains a surprising degree of mystery and disagreement as to the nature of the process involved—including its purpose, if any. If there is any lesson to be drawn from our juridical voyage, it is that there cannot be said to be any such thing as a history of international law as a single unitary thing. The reason is that conceptions of what international law is have changed so much over time. To some, international law is a

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Conclusion

purely utilitarian set of practices agreed among states, and therefore reducible ultimately to contractual arrangements. Some believe international law to be a set of moral prescriptions, altogether distinct from actual conduct—so that the challenge of lawyers is to bring conduct into line with the rules to the greatest extent possible. Within this group, some see international law as a systematic and comprehensive system. Others see it as a menu of specific rules, with gaps remaining where no rules have been made. A rival vision holds international law to be fundamentally descriptive—that is, as a distillation or summation of the general practices of states. Others believe international law to be descriptive of the features of a particular social system as such. Some insist that international law is, more than anything else, about human welfare, so that human rights, good governance, and economic development lie at its heart. Some would enlist international law as a guardian of diversity and pluralism. Others would have it as a homogenizing agent, bringing universal standards to bear across the world. In the course of our journey, we have seen all of these, and more. Our story has been less the stately progress of a monolithic “thing” called international law, and more an account of how these various competing visions have moved onto, and off of, center stage, come into and out of focus (or fashion), and jostled and manuevered to gain the advantage over rivals. At its very broadest, international law could be seen as a perpetual dialogue between two competing mentalities. They could be characterized in many different ways—as idealistic and pragmatic, for example, or as maximalist and minimalist. But the difference is between those who believe that international law is best seen as a dispute-settlement system, resolving conflicts between independent and heterogeneous agents, as opposed to those who see international law as a vehicle for the advance of civilization, enlightenment, human dignity, and so on. Where the one group hears the smack of the gavel, the other hears the blast of the trumpet. In certain respects, our history might be seen as a sort of theater— complete with constant changes of cast and plot lines. But if so, then we must acknowledge the playwright to be singularly adept at concealing his or her overall story line. Our history, sadly, cannot claim to be a script for the future. But it is hoped that it enables its readers to watch—and even to participate in—the drama with a greater sense of awareness of what is happening at any given time. Our ability to recognize the players, even when they

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are disguised or donning new costumes or brandishing new scripts, may be enhanced. The purpose of history (or at least of this one) is not to predict the future. To revert to a nautical metaphor, the exploration of the past cannot enable us to predict the destination of the voyage or even the route traveled. But it can—more loosely—improve our ability to navigate, by making us more sensitive to landmarks, currents, or changes of atmosphere. There are few subjects to match international law for giving fresh perspectives on the events and headlines of day-to-day life. But even more remarkable—and drastically underchronicled—has been the age-old attempt of homo juridicus, throughout history, to bring something like a rule of law to bear on the tumultuous hurly-burly of interstate relations. If readers are moved to be more curious about and aware of international law than they were before—and that includes the international lawyers themselves—then this all-too-rapid journey through the centuries will have been a success.

Notes

Abbreviations ABA J. A.C. AdR AJIL Am. J. Philology Am. Pol. Sci. Rev. ASIL Procs. AU BFSP Brooklyn J. Int’l L. BYBIL Cal. L. Rev. Canadian Y.B. Int’l L. Chicago J. Int’l L. Crim. L. F. C. Rob. CTS Digest Dumont EHR EHRR EJIL Eng. Hist. Rev. Fordham Int’l L. J. FRUS

American Bar Association Journal Appeal Cases (Great Britain) Archiv des Völkerrechts American Journal of International Law American Journal of Philology American Political Science Review Proceedings of the American Society of International Law African Union British and Foreign State Papers Brooklyn Journal of International Law British Year Book of International Law California Law Review Canadian Yearbook of International Law Chicago Journal of International Law Criminal Law Forum Christopher Robinson’s Admiralty Reports (Great Britain) Consolidated Treaty Series The Digest of Justinian, 4 vols., trans. Alan Watson (Philadelphia, PA: University of Pennsylvania Press, 1998) Jean Dumont, Corps universel diplomatique du droit des gens, 8 vols (Amsterdam: P. Brunel et al, 1726–31) English Historical Review European Human Rights Reports European Journal of International Law English History Review Fordham International Law Journal Foreign Relations of the United States

486

GAOR G.A. Res. Georgetown L. J. German L. J. Grotius Soc. Trans. GYBIL Harvard Int’l L. J. Harvard L. Rev. Hay & M. ICC ICJ Rep. ICLQ ICTR IDI Annuaire ILA ILM ILR Int’l Hist. Rev. Int’l J. Ethics Int’l Legal Theory Int’l L. Q. Int’l Military Trib. Int’l Rel. J. Asian Stud. J. Comp. Leg. and Int’l L. J. Ec. Hist. JHIL J. Hist. Ideas J. Latin Am. Stud. JLE J. Military Ethics J. Mod. Hist. J. Theoretical Biology L. and Cont. Prob. Leiden J. Int’l L. LN Off. J. LNTS

Notes

General Assembly Official Records (UN) General Assembly Resolution (UN) Georgetown Law Journal German Law Journal Transactions of the Grotius Society German Yearbook of International Law Harvard International Law Journal Harvard Law Review Hay and Marriott’s Admiralty Reports (Great Britain) International Criminal Court Reports of the International Court of Justice International and Comparative Law Quarterly International Criminal Tribunal for Rwanda Yearbook of the Institut de Droit International International Law Association International Legal Materials International Law Reports International History Review International Journal of Ethics International Legal Theory International Law Quarterly International Military Tribunal International Relations Journal of Asian Studies Journal of Comparative Legislation and International Law Journal of Economic History Journal of the History of International Law Journal of the History of Ideas Journal of Latin American Studies Journal of Law and Economics Journal of Military Ethics Journal of Modern History Journal of Theoretical Biology Law and Contemporary Problems Leiden Journal of International Law League of Nations Official Journal League of Nations Treaty Series

Notes

LQR Miskole J. Int’l L. MLR NAS Nordic J. Int’l L. NYBIL N.Y. Rev. of Books NYU J Int’l L. and Pol. NYULQR OAU Osgoode Hall L. J. Pace Int’l L. Rev. PCIJ Pol. Sci. Q. Procs. NAS RdC RDILC Rev. Int’l Stud. RGDIP RHDFE RIAA S.C.R. S.C. Res. SLS Stat. TLS UN Doc. UNSWLJ UNTS U. Penn. L. Rev. U.S. Wis. Int’l L. J. Yale J. Int’l L. Yale L. J. YB ILC

Law Quarterly Review Miskole Journal of International Law Modern Law Review National Academy of Sciences (United States) Nordic Journal of International Law Netherlands Yearbook of International Law New York Review of Books New York University Journal of International Law and Politics New York University Law Quarterly Review Orga nization of African Unity Osgoode Hall Law Journal Pace International Law Review Reports of the Permanent Court of International Justice Political Science Quarterly Proceedings of the National Academy of Sciences Recueil des Cours (Hague Academy of International Law) Revue de Droit International et de Législation Comparé Review of International Studies Revue Générale de Droit International Public Revue Historique de Droit Français et Étranger Reports of International Arbitral Awards Supreme Court Reports (Canada) Security Council Resolution (UN) Social and Legal Studies Statutes at Large (United States) Times Literary Supplement UN document number (official) University of New South Wales Law Journal United Nations Treaty Series University of Pennsylvania Law Review United States Supreme Court Reports Wisconsin International Law Journal Yale Journal of International Law Yale Law Journal Year Book of the International Law Commission (UN)

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488

Notes to Pages 1–12

Introduction 1. “George Washington’s Library Book Returned 221 Years Late,” Reuters, May 20, 2010, www.reuters.com/article/2010/05/20/us-book-library-washington-idUSTRE64 J1ZV20100520. 2. Readers are fortunate, though, in being able to turn to Linda S. Frey and Marsha L. Frey, The History of Diplomatic Immunity (Columbus, OH: Ohio State University Press, 1999), for an excellent general history of that subject. 3. On the history of international law regarding war, see Stephen C. Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005).

Part I. Law and Morality Abroad (to ca. ad 1550) Epigraph: Aristotle, Rhetoric (trans. by W. Rhys Roberts), in The Basic Works of Aristotle, ed. Richard McKeon, 1317–1451 (New York: Random House, 1941), 1370.

1. Doing Justice to Others 1. Livy (Titus Livius), The Early History of Rome, trans. Aubrey de Sélincourt (Harmondsworth: Penguin, 1960 [ca. 24 bc]), 288. 2. Arrian, The Campaigns of Alexander, trans. Aubrey de Sélincourt (Harmondsworth: Penguin, 1971 [ca. ad 150]), 127–28. 3. See, for example, Laurence R. Tancredi, Hardwired Behavior: What Neuroscience Reveals about Morality (Cambridge: Cambridge University Press, 2005), 77–81. On the asserted universality of ideas of sacredness, see Marcus Eliade, Patterns in Comparative Religion, trans. Rosemary Sheed (Cleveland, OH: Meridian, 1958). 4. Genesis 11:1–9. 5. Arthur Keith, A New Theory of Human Evolution (London: Watts, 1948), 6–7. 6. Herbert Spencer, The Principles of Ethics, vol. 1 (London: Williams and Norgate, 1892), 134–37. 7. Plutarch, Life of Aristeides, trans. David Sansone (Warminster: Aris and Phillips, 1989 [ca. ad 75]), 83. 8. Plato, The Republic, ed. G. R. F. Ferrari; trans. Tom Griffith (Cambridge: Cambridge University Press, 2000 [ca. 380 bc]), 59. 9. See, for example, Helen Bernhard, Urs Fischbacher, and Ernst Fehr, “Parochial Altruism in Humans,” 442 Nature 912–15 (2006). 10. Konrad Lorenz, On Aggression, trans. Marjorie Latzke (London: Methuen, 1966), 186. 11. Edward O. Wilson, The Social Conquest of Earth (New York: W. W. Norton, 2012), 244. 12. Ibid., 244– 45. 13. Ibid., 61.

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14. See, most famously, W. D. Hamilton, “The Genetical Evolution of Social Behaviour,” 7 J. Theoretical Biology 1–32 (1964). For a popu lar presentation of the thesis, see Richard Dawkins, The Selfish Gene (Oxford: Oxford University Press, 1976), 95–116. 15. Michael Kosfeld, Markus Heinrichs, Paul J. Zak, and Ernst Fehr, “Oxytocin Increases Trust in Humans,” 435 Nature 673–76 (2005). 16. Carsten K. W. De Dreu, Lindred L. Greer, Gerben A. Van Kleef, Shaul Shalvi, and Michel J. J. Handgraaf, “Oxytocin Promotes Human Ethnocentrism,” 108 Procs. NAS 1262– 66 (2011), 1265. See also Carsten K. W. De Dreu et al., “The Neuropeptide Oxytocin Regulates Parochial Altruism in Intergroup Conflict,” 328 Science 1408–11 (2010). 17. Marcus Niebuhr Tod, International Arbitration amongst the Greeks (Oxford: Clarendon Press, 1913), 170–71. 18. Adam Watson, The Evolution of International Society (London: Routledge, 1992), 27. 19. Ibid. 20. Ibid., 147–54. 21. Pliny, Natural History, trans. H. Rackham, vol. 2 (Cambridge, MA: Harvard University Press, 1942 [ca. ad 77]), 643. 22. Amanda H. Podany, Brotherhood of Kings: How International Relations Shaped the Ancient Near East (Oxford: Oxford University Press, 2010), 29–32. 23. J. M. Munn-Rankin, “Diplomacy in Western Asia in the Early Second Millennium b.c.,” 18 Iraq 68–110 (1956), 92–94. 24. Ibid., 72. 25. Peter Karavites, Promise-Giving and Treaty-Making: Homer and the Near East (Leiden: E. J. Brill, 1992), 179–81. 26. David J. Bederman, International Law in Antiquity (Cambridge: Cambridge University Press, 2001), 277. 27. Ibid., 99, 104–7. 28. Karavites, Promise-Giving, 188–92. 29. On the dating of the Artasastra, see Mark McClish, “Is the Artasastra a Mauryan Document?” in Patrick Olivelle, Janice Leoshko, and Himanshu Prabhan Ray, eds., Reimagining Asoka: Memory and History, 280–309 (Oxford: Oxford University Press, 2012). 30. Kautilya, Artasastra, 6th ed., trans. R. Shamasanstry (Mysore: Mysore Printing and Publishing, 1960 [ca. third century bc]), 367– 68. 31. Ibid., 294. 32. Ibid., 30. 33. Ibid., 420. 34. Apastamba 2.10.11, in Patrick Olivelle, ed., Dharmasutras: The Law Codes of Apastama, Gautama, Baudhayana, and Vasistha (Oxford: Oxford University Press, 1999), 53. 35. Gautama 10.17–18, in ibid., 94.

490

Notes to Pages 17–23

36. Baudhayana 1.18.10–12, in ibid., 159. On laws of warfare in ancient India, see generally V. R. Ramachandra Dikshitar, War in Ancient India (Madras: Macmillan, 1948), 41–92. 37. C. P. Fitzgerald, The Chinese View of Their Place in the World (London: Oxford University Press, 1964), 6. 38. Ibid., 5– 6. 39. Richard Lewis Walker, The Multi-State System of Ancient China (Hamden, CT: Shoe String Press, 1953), 79. 40. Fitzgerald, Chinese View, 5; and Mark Edward Lewis, “Warring States Political History,” in Michael Loewe and Edward L. Shaughanessy, eds., The Cambridge History of Ancient China: From the Origins of Civilization to 221 b.c., 587–650 (Cambridge: Cambridge University Press, 1999), 633. 41. Walker, Multi-State System, 82–83. 42. Ibid., 86–87. 43. See Keishiro Iriye, “The Principles of International Law in the Light of Confucian Doctrine,” 120 RdC 1–59 (1967), 34–46. 44. Elbert Duncan Thomas, Chinese Political Thought: A Study Based upon the Theories of the Principal Thinkers of the Chou Period (London: Williams and Norgate, 1928), 274. On the Ba system generally, see Cho-yun Hsu, “The Spring and Autumn Period,” in Loewe and Shaughanessy, eds., Cambridge History, 551–66. 45. Walker, Multi-State System, 87–89. 46. Ibid., 87–91. 47. Ibid., 84–85. 48. Ibid., 73–78. 49. John Peter Stern, The Japanese Interpretation of the “Law of Nations,” 1854–1874 (Princeton, NJ: Princeton University Press, 1979), 2. 50. Walker, Multi-State System, 93–94. 51. Frank M. Russell, Theories of International Relations (New York: D. AppletonCentury, 1936), 30. 52. Walker, Multi-State System, 93. 53. Russell, Theories, 28–31. 54. Walker, Multi-State System, 93–94. 55. See Russell, Theories, 19–25. 56. Mencius, ed. Philip J. Ivanhoe; trans. Irene Bloom (New York: Columbia University Press, 2009 [fourth century bc]), 81, 139– 40. 57. Ibid., 43– 44. 58. Ibid., 156. 59. Thomas, Chinese Political Thought, 253. 60. Mencius, 77. 61. Ibid., 53–55. 62. Benjamin Schwartz, The World of Thought in Ancient China (Cambridge, MA: Harvard University Press, 1985), 157–58.

Notes to Pages 23–30

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63. Mozi, Basic Writings, trans. Burton Watson (New York: Columbia University Press, 2003 [ca. 450 bc]), 62– 63. 64. Schwartz, World of Thought, 161. 65. Mozi, Basic Writings, 59– 61. 66. For a good general introduction to legalism, see Han Fei Tzu, Basic Writings, trans. Burton Watson (New York: Columbia University Press, 1964 [ca. 250 bc]), 1–15. See also Russell, Theories, 31–34. 67. See Chapter 6. 68. On realism, see Chapter 9. 69. Walker, Multi-State System, 91–95. 70. Ibid., 83–86. 71. Plato, The Laws, trans. Trevor J. Saunders (Harmondsworth: Penguin, 1970 [ca. 345 bc]), 499–500. 72. Ibid., 159– 62, 211–13, 499–503. 73. Aristotle, The Politics, trans. T. A. Sinclair (London: Penguin, 1962 [ca. 350 bc]), 59. 74. See Chapter 6. 75. Aristotle, Politics, 59– 61. 76. Plato, Laws, 47. 77. Aristotle, Politics, 72. 78. Herodotus, The Histories, trans. Aubrey de Sélincourt (London: Penguin, 1954 [ca. 445 bc]), 575. 79. See, for example, Isocrates, “Panathenaicus,” in Isocrates, trans. George Norlin, vol. 1, 367–541 (London: William Heinemann, 1956), 479–81. See also Polly Low, Interstate Relations in Classical Greece: Morality and Power (Cambridge: Cambridge University Press, 2007), 54– 67. 80. On proxeny, see Bederman, International Law in Antiquity, 130–34. 81. Plato, Menexenus, in The Collected Dialogues of Plato, ed. Edith Hamilton and Huntington Cairns; trans. Benjamin Jowett, 186–99 (Princeton, NJ: Princeton University Press, 1961 [ca. 370 bc]), 193. 82. Plato, Republic, 171–73. 83. Thucydides, The Peloponnesian War, trans. Rex Warner (Harmondsworth: Penguin, 1954 [ca. 400 bc]), 404–5. 84. On the realist school, see Chapter 9. 85. Thucydides, Peloponnesian War, 226–28. 86. Ibid., 232–33. 87. Ibid., 323–24. 88. Ibid., 323–26. 89. Livy (Titus Livius), Rome and the Mediterranean, trans. Henry Bettenson (London: Penguin, 1976 [ca. 24 bc]), 49–50. 90. Tod, International Arbitration, 178. 91. Herodotus, Histories, 402. 92. Tod, International Arbitration, 178–80.

492

Notes to Pages 30–39

93. Ibid., 175. 94. Aristotle, Rhetoric, in The Basic Works of Aristotle, ed. Richard McKeon; trans. W. Rhys Roberts, 1317–1451 (New York: Random House, 1941 [fourth century bc]), 1372. 95. Isocrates, “On the Peace,” in 2 Isocrates, trans. George Norlin (London: William Heinemann, 1929), 1–97. 96. Ibid., 83. On Isocrates, see Low, Interstate Relations, 155– 60. 97. Digest 49.15.7.1 (Proculus). 98. See A. N. Sherwin-White, Roman Foreign Policy in the East: 168 b.c. to 1 a.d. (Norman, OK: University of Oklahoma Press, 1983), 58–70. 99. Livy, Early History, 57. 100. Ibid., 67. 101. Ibid., 69–71. 102. Cicero, The Republic, trans. Niall Rudd (Oxford: Oxford University Press, 1998 [ca. 53 bc]), 44. 103. On the Roman fetial law, see generally Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome, vol. 2 (London: Macmillan, 1911), 315–48; and William V. Harris, War and Imperialism in Republican Rome 327–70 b.c. (Oxford: Clarendon Press, 1979), 166–71. 104. Polybius: The Histories, trans. W. R. Paton, vol. 6 (London: William Heinemann, 1927 [ca. 140 bc]), 357. 105. See Phillipson, International Law, vol. 2, 182–92; and Harris, War and Imperialism, 171–75. 106. Livy, trans. Evan T. Sage, vol. 9 (Cambridge, MA: Harvard University Press, 1935 [ca. 24 bc]), 357. 107. See Cicero, On Moral Ends, ed. Julia Annas; trans. Raphel Woolf (Cambridge: Cambridge University Press, 2001 [45 bc]), 89; and Dio’s Roman History, trans. Earnest Cary, vol. 3 (London: William Heinemann, 1914 [ca. ad 220]), 421. 108. Dio’s Roman History, 447. 109. Plato, Menexenus, 193. 110. Aristotle, Politics, 57. 111. For a full account of this fascinating experiment, see Robert Axelrod, The Evolution of Cooperation (New York: Basic, 1984). 112. Herodotus, Histories, 336. 113. Hattusilis III-Ramses II, Treaty of Peace and Alliance, ca. 1280–70 bc, in Wilhelm G. Grewe, ed., Fontes Historiae Juris Gentium: Sources Relating to the History of the Law of Nations, vol. 1 (Berlin: Walter de Gruyter, 1988), 18–23. 114. Toby Wilkinson, The Rise and Fall of Ancient Egypt: The History of a Civilisation from 3000 BC to Cleopatra (London: Bloomsbury, 2010), 337– 40; and Bederman, International Law in Antiquity, 146–50. 115. For an account of early Buddhism, see Trevor Ling, The Buddha: Buddhist Civilization in India and Ceylon (Harmondsworth: Penguin, 1973). 116. Thomas, Chinese Political Thought, 237– 40.

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117. Benjamin I. Schwartz, “The Chinese Perception of World Order, Past and Present,” in John K. Fairbank, ed., Chinese World Order: Traditional China’s Foreign Relations, 276–88 (Cambridge, MA: Harvard University Press, 1968), 279. 118. G. E. R. Lloyd, Ancient Worlds, Modern Reflections: Philosophical Perspectives on Greek and Chinese Science and Culture (Oxford: Clarendon Press, 2004), 161; and Yang Lien-sheng, “Historical Notes on the Chinese World Order,” in Fairbank, ed., Chinese World Order, 20–33, 27–28. 119. Charles Holcombe, The Genesis of East Asia 221 b.c.–a.d. 907 (Honolulu, HI: Association for Asian Studies, 2001), 40– 41, 48–52. 120. See Kirk W. Larsen, Tradition, Treaties, and Trade: Qing Imperialism and Choson Korea, 1850–1910 (Cambridge, MA: Harvard University Press, 2008). On the operation of the tribute system, see Sechin Jagchid and Van Jay Symons, Peace, War, and Trade along the Great Wall: Nomadic-Chinese Interaction through Two Millennia (Bloomington: Indiana University Press, 1989), 114–40. 121. Wang Gungwu, “The Rhetoric of a Lesser Empire: Early Sung Relations with Its Neighbors,” in Morris Rossabi, ed., China among Equals: The Middle Kingdom and Its Neighbors, 10th–14th Centuries, 47– 65 (Berkeley, CA: University of California Press, 1983), 58–59; and Tao Jing-shen, “Barbarians or Northerners: Northern Sung Images of the Khitans,” in ibid., 67. 122. Herbert Franke, “Sung Embassies: Some General Observations,” in Rossabi, ed., China among Equals, 116– 48, 117–18. For a general history of Chinese relations with its Asian neighbors, see Jagchid and Symons, Peace, War, and Trade; and Thomas J. Barfield, The Perilous Frontier: Nomadic Empires and China, 221 BC to AD 1757 (Oxford: Blackwell, 1989). 123. Wang Gungwu, “Rhetoric of a Lesser Empire,” 55– 62. 124. Tao Jing-shen, “Barbarians or Northerners,” 71–72. 125. Plato, Republic, 171. 126. Aristotle, Rhetoric, in Basic Works, 1359. 127. Ibid., 1370. 128. For a succinct presentation of stoic ideas of natural law, see Maryanne Cline Horowitz, “The Stoic Synthesis of the Idea of Natural Law in Man: Four Themes,” 35 J. Hist. Ideas 3–16 (1974). 129. See Plutarch, “On the Fortune or Virtue of Alexander,”in Moralia, trans. Frank Cole Babbitt, 379– 487 (Cambridge, MA: Harvard University Press, 1936 [ca. ad 100]), 389– 405. 130. H. C. Baldry, The Unity of Mankind in Greek Thought (Cambridge: Cambridge University Press, 1965), 113–27. 131. Cicero, Republic, 68– 69. 132. See Cicero, De Officiis, trans. Walter Miller (London: Heinemann, 1921 [44 bc]), 291. 133. Gaius, The Institutes, trans. Francis de Zulueta (Oxford: Clarendon Press, 1946 [ca. ad 170]), 3.

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Notes to Pages 46–57

134. Phillipson, International Law, vol. 1, 70–81. 135. Cicero, Tusculan Disputations, trans. J. E. King (London: William Heinemann, 1927 [45 bc]), 37. 136. Gaius, Institutes, 3. 137. Digest 1.1.3 (Ulpian). 138. Digest 1.1.4 (Ulpian). 139. Digest 1.4 (Ulpian). 140. Digest 1.5 (Hermogenian).

2. Keeping Kings in Check 1. David Abulafia, Frederick II: A Medieval Emperor (New York: Oxford University Press, 1988), 366–74. See also Wilhelm G. Grewe, ed., Fontes Historiae Juris Gentium: Sources Relating to the History of the Law of Nations, vol. 1 (Berlin: Walter de Gruyter, 1988), 294–97, 585–86. 2. Abulafia, Frederick II, 375. 3. See Chapter 6. 4. Kenneth Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley, CA: University of California Press, 1993), 197. 5. Dante Alighieri, Monarchia, ed. and trans. Prue Shaw (Cambridge: Cambridge University Press, 1996 [ca. 1314]), 13. 6. Ibid., 24–25. 7. C. R. Cheney, “King John’s Reaction to the Interdict on England,” 31 (4th ser.) Transactions of the Royal Historical Society 129–50 (1949). 8. John B. Morrall, Political Thought in Medieval Times, 2nd ed. (London: Hutchinson, 1960), 54; and Walter Ullmann, A Short History of the Papacy in the Middle Ages (London: Methuen, 1972), 103. 9. Grewe, ed., Fontes, vol. 1, 519–20. 10. Novit Ille, in Sidney Z. Ehler and John B. Morrall, eds. and trans., Church and State through the Centuries: A Collection of Historic Documents with Commentaries, 69–71 (New York: Biblio and Tannen, 1967). 11. Morrall, Political Thought, 84–85. 12. See I. S. Robinson, “Church and Papacy,” in J. H. Burns, ed., The Cambridge History of Medieval Political Thought c. 350–c. 1450, 252–305 (Cambridge: Cambridge University Press, 1988), 299–304. 13. Grewe, ed., Fontes, vol. 1, 582–83. 14. Ibid., 583–85. 15. Gaines Post, Studies in Medieval Legal Thought: Public Law and the State, 1100– 1322 (Princeton, NJ: Princeton University Press, 1964), 438–39. 16. Ullmann, History, 284–85. 17. J. C. Holt, Magna Carta, 2d ed. (Cambridge: Cambridge University Press, 1992), 373–75.

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18. Grewe, ed., Fontes, vol. 1, 304. 19. Frank Barlow, The Feudal Kingdom of England, 5th ed. (London: Longman, 1999), 254. 20. John Eppstein, Catholic Tradition of the Law of Nations (London: Burns Oates and Washbourne, 1935), 465. 21. For a full summation of papal arbitration activity, see ibid., 464– 69. 22. Françoise Autrand, “The Peacemakers and the State: Pontifical Diplomacy and the Anglo-French Conflict in the Fourteenth Century,” in Philippe Contamine, ed., War and Competition between States, 249–77 (Oxford: Clarendon Press, 2000). 23. Post, Studies, 465. 24. Ernest Nys, Les origines du droit international (Brussels: Alfred Castaigne, 1894), 53; and Grewe, ed., Fontes, vol. 1, 523–26. 25. John of Salisbury, Policraticus: Of the Frivolities of Courtiers and the Footprints of Philosophers, ed. and trans. Cary J. Nederman (Cambridge: Cambridge University Press, 1990 [1159]), 69, 81, 91–92, 104–5, 125–26. 26. See Chapter 1. 27. On Aquinas’s contribution to international law, see A. de La Pradelle, Maîtres et doctrines du droit des gens, 2d ed. (Paris: Éditions internationales, 1950), 13–32. 28. Thomas Aquinas, Summa Theologiae, in Political Writings, ed. and trans. R. W. Dyson (Cambridge: Cambridge University Press, 2002 [ca. 1270]), 163– 65. 29. Thomas Aquinas, Summa Contra Gentiles, trans. English Dominican Fathers, vol. 2 (London Burns, Oates and Washbourne, 1923 [ca. 1265]), 45. 30. See Chapters 4 and 5. 31. See Chapter 1. 32. Aquinas, Summa Theologiae, in Political Writings, 117–18. 33. See Chapter 4. 34. See Chapter 1. 35. Isidore of Seville, The Etymologies, ed. and trans. Stephen A. Barney, W. J. Lewis, J. A. Beach, and Oliver Berghof (Cambridge: Cambridge University Press, 2006 [ca. 630]), 117–18. 36. Ibid. 37. Rufinus the Canonist, Summa Decretorum, Part I, Distinction 1, quoted in Oliver O’Donovan and John Lockwood O’Donovan, From Irenaeus to Grotius: A Sourcebook in Christian Political Thought 100–1625 (Grand Rapids, MI: Eerdmans, 1999 [1157–59]), 301–2. 38. Post, Studies, 552. 39. On this approach, see generally Otto Gierke, Political Theories of the Middle Age, trans. Frederick William Maitland (Cambridge: Cambridge University Press, 1938 [1881]), 75–76, 80–81; Ernst Troeltsch, The Social Teaching of the Christian Churches, trans. Olive Wyon (London: George Allen and Unwin, 1931), 150– 61; Post, Studies, 510–12, 527–35; and F. H. Hinsley, Sovereignty, 2d ed. (Cambridge: Cambridge University Press, 1986), 164– 67.

496

Notes to Pages 65–77

40. Alanus Anglicus, Commentary on Distinction 96 (of Gratian), quoted in Brian Tierney, ed., Crisis of Church and State 1050–1300 (Englewood Cliffs, NJ: PrenticeHall, 1964), 124. See also Post, Studies, 464– 66; and Morrall, Political Thought, 93. 41. Aquinas, Political Writings, 163– 65. 42. Ibid., 135. On Aquinas’s view of the ius gentium, see G. Le Bras, C. Lefebvre, and J. Rambaud, Histoire du droit et des institutions de l’Église en Occident: L’Âge classique 1140–1378: Sources et théories du droit (Paris: Sirey, 1965), 391–92; and Matthias LutzBachmann, “The Concept of the Normativity of Law: ‘Ius Gentium’ in the Writings of Francisco Suárez and Thomas Aquinas,” in Thilo Marauhn and Heinhard Steiger, eds., Universality and Continuity in International Law, 235– 47 (The Hague: Eleven International, 2011), 242– 45. 43. Post, Studies, 535– 49. 44. See Chapter 4. 45. For the consensus of canon lawyers on this conclusion, see Post, Studies, 527. 46. Grewe, ed., Fontes, vol. 1, 568– 69. 47. On the participation of clerics in wars, see ibid., 186–94. 48. On causa, see Nys, Origines, 95–139; and Frederick H. Russell, The Just War in the Middle Ages (Cambridge: Cambridge University Press, 1975), 219–22. 49. For a thorough exposition of self-defense in the narrower sense, see John of Legnano, Tractatus de Bello, des Respresaliis et du Duello, ed. T. E. Holland; trans. J. L. Brierly (Oxford: Oxford University Press, 1917 [ca. 1360]), 276–306. 50. See Russell, Just War, 278. 51. Stephen C. Neff, The Rights and Duties of Neutrals: A General History (Manchester: Manchester University Press, 2000), 7–10. 52. See, for example, Honoré Bonet, The Tree of Battles, trans. G. W. Coopland (Liverpool: Liverpool University Press, 1949 [1387]), 117–18. 53. See Chapters 4 and 5. 54. James A. Brundage, Medieval Canon Law (London: Longman, 1995), 116–17. 55. Lauro Martines, Power and Imagination: City-States in Renaissance Italy (Harmondsworth: Penguin, 1979), 171–75. 56. J. P. Canning, “Law, Sovereignty and Corporation Theory, 1300–1450,” in Burns, ed., The Cambridge History of Medieval Political Thought c. 350– c. 1450, 454–76 (Cambridge: Cambridge University Press), 469–73. 57. J. K. Hyde, Society and Politics in Medieval Italy: The Evolution of the Civil Life, 1000–1350 (London: Macmillan, 1973), 96–98. 58. Peace of Constance, in Frederic Austin Ogg, ed., A Source Book of Mediaeval History (New York: American, 1908), 400– 02. 59. Martines, Power and Imagination, 25–28. 60. Bernard Guenée, States and Rulers in Later Medieval Europe, trans. Julet Vale (Oxford: Basil Blackewell, 1985), 13. 61. Hinsley, Sovereignty, 81–82. 62. Angelo Piero Sereni, The Italian Conception of International Law (New York: Columbia University Press, 1943), 58– 63.

Notes to Pages 77–82

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63. Ullmann, History, 196–97. 64. Per venerabilem, September 7, 1202, in Ehler and Morrall, Church and State, 67– 69. See also Post, Studies, 481–82; and Ullmann, History, 8–9. 65. See Grewe, ed., Fontes, vol. 1, 527. 66. Ullmann, History, 197–99; Walter Ulllmann, Law and Politics in the Middle Ages: An Introduction to the Sources of Medieval Political Ideas (London: Hodder and Stoughton, 1975), 185–86; Walter Ullmann, “The Development of the Medieval Idea of Sovereignty,” 64 Eng. Hist. Rev. 1–33 (1949), 25–28; and Canning, “Law, Sovereignty,” 465. For a thorough account of the dispute, see Pennington, The Prince and the Law, 165–201. 67. See Martines, Power and Imagination, 171–75. 68. Ullmann, “Development,” 16–17. 69. Quoted in Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), 69. 70. Hyde, Society and Politics, 186–96. 71. Marsilius of Padua, The Defender of Peace: The Defensor Pacis, trans. Alan Gewirth (New York: Columbia University Press, 1956 [1324]), 34–37. 72. Alexander Passerin D’Entrèves, The Medieval Contribution to Political Thought (Oxford: Oxford University Press, 1939), 59– 65. See also Chapter 6. 73. Isidore of Seville, Etymologies, 119. For the text of the Rhodian Code, see Waltere Ashburner, ed., The Rhodian Sea Laws: Edited from the Manuscripts (Oxford: Clarendon Press, 1909). 74. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), 340. 75. Ibid. 76. Ibid. 77. For the text, see Stanley Jados, ed., Consulate of the Sea and Related Documents (Tuscaloosa, AL: University of Alabama Press, 1975 [ca. 11th–13th centuries]). 78. Ibid., sec. 276, 192–93. 79. See Carl J. Kulsrud, Maritime Neutrality to 1780: A History of the Main Principles Governing Neutrality and Belligerency to 1780 (Boston: Little, Brown, 1936), 17–37. 80. Grewe, ed., Fontes, vol. 1, 710–20. 81. Emmerich de Vattel, The Law of Nations; or, The Principles of Natural Law Applied to the Conduct and to the Affairs of the Nations and Sovereigns, trans. Charles G. Fenwick (Washington, DC: Carnegie Institution, 1916 [1758]), 108–9. 82. François L. Ganshof, The Middle Ages: A History of International Relations, trans. Rémy Inglis Hall (New York: Harper and Row, 1970), 310–11. 83. Grewe, ed., Fontes, vol. 1, 692–93. See also Percy Thomas Fenn Jr, “Origins of the Theory of Territorial Waters,” 20 AJIL 465–82 (1926), 475–78. 84. Ganshof, Middle Ages, 310; and Percy E. Corbett, Law in Diplomacy (Princeton, NJ: Princeton University Press, 1959), 116–17.

498

Notes to Pages 83–90

85. Peter Haggenmacher, “On the Doctrinal Origins of Ius in Bello: From Rights of War to the Laws of War,” in Marauhn and Steiger, eds., Universality and Continuity, 335–36. 86. Russell, Just War, 281. 87. Ibid., 155–56. 88. Ibid., 186. 89. Pierini Belli, A Treatise on Military Matters and Warfare, trans. Herbert C. Nutting (Oxford: Clarendon Press, 1936 [1563]), 82. 90. Norman P. Tanner, Decrees of the Ecumenical Councils, vol. 1 (London: Sheed and Ward, 1990), 203. 91. For the text of a declaration of war by France against the Holy Roman Empire in 1528, see 4(1) Dumont 503. 92. On declarations of war, see Nys, Origines, 176–87. 93. Ludwik Ehrlich, “The Development of International Law as a Science,” 105 RdC 173–265 (1962), 188. 94. See Ernest Nys, “Honoré de Bonet et Christine de Pisan,” 14 RDILC 451–72 (1882), 452–55. 95. See ibid., 456–57. 96. Christine de Pisan, The Book of Deeds of Arms and of Chivalry, ed. Charity Cannon Willard; trans. Sumner Willard (University Park, PA: Pennsylvania State University Press, 1999 [ca. 1410]), 12–13. 97. John of Legnano, Tractatus de Bello, 270. 98. On the law of ransom, see Belli, Treatise, 116–19. 99. On the economic aspects of ransoming in medieval warfare, see Bruno S. Frey, “Prisoners and Property Rights,” 31 JLE 19– 46 (1988). 100. See Balthasar Ayala, On the Law of War and on the Duties Connected with War and on Military Discipline, trans. John Pawley Bate (Washington, DC: Carnegie Institution of Washington, 1912 [1581]), 47. 101. See Chapter 1. 102. Ganshof, Middle Ages, 49–50. 103. Ibid., 141– 42. 104. Robert S. Lopez and Irving W. Raymond, Medieval Trade in the Mediterranean World: Illustrative Documents Translated with Introductions and Notes (London: Oxford University Press, 1955), 323–24. 105. For an example, see Grewe, ed., Fontes, vol. 1, 600– 4. 106. For the text of a letter of marque of 1306, see R. G. Marsden, Documents Relating to Law and Custom of the Sea, vol. 1 (London: Navy Records Society, 1915), 56–59. 107. John of Legnano, Tractatus, 307–31. 108. Bonet, Tree of Battles, 173–75, 179, 182, 187–88; and Christine de Pisan, Book of Deeds, 192–96. 109. Tanner, Decrees, vol. 1, 330.

Notes to Pages 90–96

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110. Ganshof, Middle Ages, 313–14. 111. Ibid., 151. 112. England-Florence, Commercial Treaty, Apr. 15, 1490, 3(2) Dumont 247; and Burgundy-England, Treaty of Peace and Commerce, Feb. 24, 1496, ibid., 336. See Nys, Origines, 75. 113. See Chapters 5, 6, 9, and 10 for future developments regarding reprisals. 114. R. G. Marsden, “Early Prize Jurisdiction and Prize Law in England,” 24 English Historical Review 675–97 (1909), 675. 115. For the texts of three commissions to privateers granted by the English government in 1400– 05, see Marsden, Documents, vol. 1, 111–15.

3. New Worlds and Their Challenges 1. On Vitoria, see J. Barthélemy, “François de Vitoria,” in A. Pillet, ed., Les fondateurs du droit international, 1–36 (Paris: V. Giard and E. Brière, 1904); and A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed. (Paris: Éditions internationales, 1950), 33– 48. 2. Letter Vitoria to Miguel de Arcos, Nov. 8, 1534, in Francisco de Vitoria, Political Writings, ed. Anthony Pagden and Jeremy Laurance (Cambridge: Cambridge University Press, 1991), 331. 3. Wilhelm G. Grewe, The Epochs of International Law, trans. Michael Byers (Berlin: Walter de Gruyter, 2000), 135. 4. See, however, Anver M. Emon, Islamic Natural Law Theories (Oxford: Oxford University Press, 2010), which identifies natural law themes in Muslim law that arose independently of classical Greek or Roman thought. 5. Antony Black, The West and Islam: Religion and Political Thought in World Hisotry (Oxford: Oxford University Press, 2008), 147– 48. 6. Haniff Ahamat, “The Position of Siyar on Free Trade: A Historico-Legal Analysis,” 12 JHIL 307–27 (2010), 308. 7. Majid Khadduri, ed. and trans., The Islamic Law of Nations: Shāybanī’s Siyar (Baltimore: Johns Hopkins University Press, 1966 [ca. 805]), 41. 8. Ibid., 8–9. 9. Ibid., 23–25. 10. Ibid., 51. 11. Ibid., 25–26. 12. For a copy of this work in English, see ibid., 75–292. 13. On European just war doctrine, see Chapter 2. 14. Quran, sura 48: 29. 15. Quran, sura 4: 101. 16. Quran, sura 5: 51, 57. 17. On Christian-Muslim relations generally, see Hugh Goddard, A History of Christian-Muslim Relations (Edinburgh: Edinburgh University Press, 2000).

500

Notes to Pages 96–103

18. See John Kelsay, “Al-Shaybani and the Islamic Law of War,” 2 J. Military Ethics 63–75 (2003), 69–70. 19. Efraim Karsh, Islamic Imperialism: A History (New Haven, CT: Yale University Press, 2006), 67– 69. 20. Concerning the Truce of Hudaybiyya, see W. Montgomery Watt, Muhammad: Prophet and Statesman (London: Oxford University Press, 1961), 182–88. For the allusion to the event in the Quran, see sura 48: 10. 21. Bernard Lewis, The Muslim Discovery of Europe (New York: W. W. Norton, 1982), 62. 22. Khadduri, ed., Islamic Law of Nations, 12–13. 23. Lewis, Muslim Discovery, 61. 24. Ibid., 62. 25. For Shaybani’s exposition of the law of aman, see Khadduri, ed., Islamic Law of Nations, 158– 68. 26. Lewis, Muslim Discovery, 62– 63. 27. For Shaybani’s exposition of the law on bughat, see Khadduri, ed., Islamic Law of Nations, 230– 46. See also Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001), 237– 49. 28. Wilhelm G. Grewe, ed., Fontes Historiae Juris Gentium: Sources Relating to the History of the Law of Nations, vol. 1 (Berlin: Walter de Gruyter, 1988), 351. 29. R. W. Dyson, ed. and trans., Giles of Rome’s On Ecclesiastical Power: A Medieval Theory of World Government (New York: Columbia University Press, 2004 [ca. 1300]), 131. 30. Grewe, ed., Fontes, vol. 1, 353. 31. Innocent IV on the Legal Status of Infidels (1243), in ibid., 348–50. 32. Grewe, ed., Fontes, vol. 1, 348– 49. 33. James Muldoon, Popes, Lawyers, and Infidels: The Church and the Non-Christian World 1250–1550 (Liverpool: Liverpool University Press, 1970), 153. The author adds that there would be no real point in doing this. 34. Sermon of Urban II (1095), as reported by Robert the Monk, in A. Brundage, The Crusades: A Documentary Survey (Milwaukee, WI: Marquette University Press, 1962), 17–20. 35. See Frederick H. Russell, The Just War in the Middle Ages (Cambridge: Cambridge University Press, 1975), 199–200. 36. John of Legnano, Tractatus de Bello, de Represaliis et du Duello, ed. T. E. Holland and trans. J. L. Brierly (Oxford: Oxford University Press 1917 [ca. 1360]), 232; and Honoré Bonet, The Tree of Battles of Honoré Bonet, trans. G. W. Coopland (Liverpool: Liverpool University Press, 1949 [1387]), 127. See also Russell, Just War, 114–15. 37. Grewe, ed., Fontes, vol. 1, 631–37. 38. Norman Housley, The Later Crusades, 1274–1580: From Lyons to Alcazar (Oxford: Oxford University Press, 1992), 288.

Notes to Pages 103–109

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39. On the northeastern crusades, see ibid., 322–75; and Eric Christianson, The Northern Crusades (London: Penguin, 1980). 40. Grewe, ed., Fontes, vol. 1, 363– 64. 41. Muldoon, Popes, 112. 42. Housley, Later Crusades, 362– 65; and Muldoon, Popes, 118–19. 43. François L. Ganshof, The Middle Ages: A History of International Relations, trans. Rémy Inglis Hall (New York: Harper and Row, 1970), 142. 44. Ibid., 154–55. 45. J. R. S. Phillips, The Medieval Expansion of Europe, 2nd ed. (Oxford: Clarendon Press, 1998), 46. 46. Ganshof, Middle Ages, 143– 44. 47. Tunis-Venice, Treaty of Commerce, 1251, in Grewe, ed., Fontes, vol. 1, 370–74. 48. A. P. Thornton, Doctrines of Imperialism (New York: John Wiley and Sons, 1965), 135–36. 49. On the papal efforts to limit Christian trade with Muslims, see Eliyahu Ashtor, Levant Trade in the Later Middle Ages (Princeton, NJ: Princeton University Press, 1983), 17– 63. 50. Robert S. Lopez and Irving W. Raymond, Medieval Trade in the Mediterranean World: Illustrative Documents Translated with Introductions and Notes (London: Oxford University Press, 1955), 333–35. 51. Thornton, Doctrines, 135. 52. Housley, Later Crusades, 37. 53. Canon Ad Liberandum, Fourth Lateran Council, in Brundage, ed., Crusades, 217. 54. Ashtor, Levant Trade, 19. 55. Ibid., 47. 56. Ieuan Griffiths, The African Inheritance (London: Routledge, 1995), 23. 57. Anthony Pagden, Peoples and Empires: Europeans and the Rest of the World, from Antiquity to the Present (London: Phoenix Press, 2001), 19. 58. Felipe Fernández-Armesto, Before Columbus: Exploration and Colonisation from the Mediterranean to the Atlantic, 1229–1492 (London: Macmillan, 1987), 232–33. 59. Ibid., 212–13. 60. Ernest Nys, Les origines du droit international (Brussels: Alfred Castaigne, 1894), 370. 61. Joseph F. O’Callaghan, “Castile, Portugal, and the Canary Islands: Claims and Counterclaims, 1344–1479,” 24 Viator 287–310 (1993), 305. 62. Romanus Pontifex, Jan. 6, 1455, in Frances G. Davenport, ed., European Treaties Bearing on the History of the United States and Its Dependencies, vol. 1 (Washington, DC: Carnegie Institution, 1917), 9–26. 63. Inter Caetera, Mar. 13, 1456, in ibid., 27–32.

502

Notes to Pages 109–115

64. Portugal-Spain, Treaty of Aloaçoves, Sep. 4, 1479, art. 8, in ibid., 33– 48; and Grewe, ed., Fontes, vol. 1, 683–90. 65. Grewe, ed., Fontes, vol. 1, 649–53. 66. Muldoon, Popes, 136. 67. See Inter Caetera, May 3, 1493, in Davenport, ed., European Treaties, 56– 63; and Inter Caetera, May 4, 1493, in ibid., 71–78; and Grewe, ed., Fontes, vol. 2, 103–9. 68. Muldoon, Popes, 136–39. 69. Portugal-Spain, Treaty of Tordesillas, July 2, 1494, in Charles Gibson, ed., The Spanish Tradition in America (New York: Harper and Row, 1968), 42–51; Davenport, ed., European Treaties, vol. 1, 84–100; and Grewe, ed., Fontes, vol. 2, 110–16. 70. Portugal-Spain, Treaty of May 7, 1495, in Davenport, European Treaties, vol. 1, 101– 6. 71. Portugal-Spain, Treaty of Saragossa, Apr. 22, 1529, in ibid., 185–97; and Grewe, ed., Fontes, vol. 2, 117–34. 72. See Barry Nicholas, An Introduction to Roman Law (Oxford: Clarendon Press, 1962), 115– 40. 73. On possession ceremonies, see Lauren Benton and Benjamin Straumann, “Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice,” 28 Law and History Review 1–38 (2010), 31–35. 74. Fernández-Armesto, Before Columbus, 212. 75. Lewis Hanke, The Spanish Struggle for Justice in the Conquest of America (Philadelphia, PA: University of Pennsylvania Press, 1949), 25–26. 76. J. H. Parry, The Spanish Theory of Empire in the Sixteenth Century (Cambridge: Cambridge University Press, 1940), 38. 77. D. A. Brading, The First America: The Spanish Monarchy, Creole Patriots, and the Liberal State 1492–1867 (Cambridge: Cambridge University Press, 1991), 81. 78. See Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World, 1492–1640 (Cambridge: Cambridge University Press, 1995), 73–94. 79. Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France c. 1500–c. 1800 (New Haven, CT: Yale University Press, 1995), 91. 80. Stephen Greenblatt, Marvelous Possessions: The Wonder of the New World (Oxford: Clarendon Press, 1991), 98. 81. Gibson, ed., Spanish Tradition, 58– 60. 82. Hanke, Spanish Struggle, 35. 83. Seed, Ceremonies, 98–99. 84. Brading, First America, 30–31. For the view that the requerimiento was not employed on that occasion, see Seed, Ceremonies, 98–99. 85. J. H. Parry, The Spanish Seaborne Empire (Harmondsworth: Penguin, 1966), 124. 86. Muldoon, Popes, 140– 43. 87. Hanke, Spanish Struggle, 111–12. 88. Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), 72–73.

Notes to Pages 115–121

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89. Vitoria, “On the Power of the Church (I),” in Political Writings, 83–86. 90. In support of this position, see Francisco Suárez, The Three Theological Virtues, in Selections from Three Works of Franicsco Suárez, trans. Gwladys L. Williams, Ammi Brown, and John Waldron (Oxford: Clarendon Press, 1944 [1621]), 746. 91. Brading, First America, 131. 92. Muldoon, Americas, 96–109. 93. Hanke, Spanish Struggle, 111–12. 94. Ibid., 112. 95. Vitoria, “On the American Indians,” in Political Writings, 243– 46. 96. Ibid., 251–77. 97. Ibid., 269–71. 98. Ibid., 277–91. 99. Ibid., 289. 100. Vitoria, “On Dietary Laws, and Self-Restraint,” in Political Writings, 226–27. 101. Vitoria, “On the American Indians,” 291–92. 102. See Chapter 1. 103. Hanke, Spanish Struggle, 25–26. 104. See ibid., 16–19. 105. Lewis Hanke, All Mankind Is One: A Study of the Disputation between Bartolomé de las Casas and Juan Ginés de Sepúlveda in 1550 on the Intellectual and Religious Capacity of the American Indians (DeKalb, IL: Northern Illinois University Press, 1974), 100. 106. Anthony Pagden, The Fall of Natural Man: The American Indians and the Origins of Comparative Ethnology (Cambridge: Cambridge University Press, 1982), 38. 107. Brian P. Copenhaver and Charles B. Schmitt, Renaissance Philosophy (Oxford: Oxford University Press, 1992), 113–14. 108. Brading, First America, 80–81. 109. Paul III, Sublimis Deus Sic Dilexit, in Gibson, ed., Spanish Tradition, 104–5. See also Hanke, All Mankind, 17–22. 110. Hanke, Spanish Struggle, 112–13. 111. Vitoria, “On the American Indians,” 290–91. 112. Muldoon, Americas, 38– 65. 113. See, to this effect, Suárerz, Theological Virtues, 741– 43. 114. Vitoria, “On the American Indians,” 284–85. 115. Ibid., 285. 116. Lewis Hanke, Spanish Struggle, 150. 117. Ibid., 17–18. 118. Juan Ginés de Sepúlveda, “Just War against Barbarians,” trans. Charles Gibson, in Gibson, ed., Spanish Tradition, 113–20. 119. Pagden, Peoples and Empires, 77–78. 120. Lewis Hanke, Aristotle and the American Indians: A Study in Race Prejudice in the Modern World (London: Hollis and Carter, 1959), 28–37.

504

Notes to Pages 122–130

121. Ramón Hernández, “The Internationalization of Francisco de Vitoria and Domingo de Soto,” 15 Fordham Int’l L. J. 1031–59 (1991), 1057. 122. Hanke, Spanish Struggle, 124–25. 123. Ibid., 120. 124. Ibid., 129–30. 125. Parry, Spanish Theory, 57. 126. Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), 75; and Hernández, “Internationalization,” 1051–52. 127. Parry, Spanish Theory, 14–15. 128. Hanke, Spanish Struggle, 130–31. 129. Grewe, ed., Fontes, vol. 1, 349. See also, to the same effect, John of Legnano, Tractatus de Bello, 232. 130. Muldoon, Popes, 5–14. 131. Ibid., 285. 132. Hanke, Spanish Struggle, 163– 65. 133. Ibid., 165– 68. 134. Ibid., 167. 135. Pagden, Lords of All the World, 48. 136. Anthony Pagden, “Law, Colonization, Legitimation, and the European Background,” in The Cambridge History of Law in America: Early America (1580–1815), ed. Michael Grossberg and Christopher Tomlins, 1–31 (Cambridge: Cambridge University Press, 2008), 22–24. 137. Hanke, Spanish Struggle, 148. 138. Muldoon, Americas, 98. 139. Richard Zouche, An Exposition of Fecial Law and Procedure, or of Law between Nations, and Questions Concerning the Same, trans. J. L. Brierly (Washington, DC: Carnegie Institution of Washington, 1911 [1650]), 80; and Seed, Ceremonies, 9–10. 140. Vitoria, “On the American Indians,” 264– 65. 141. Pagden, “Law, Colonization,” 19. 142. Jean-Philippe Lévy and André Castaldo, Histoire du droit civil (Paris: Dalloz), 534. 143. Emmerich de Vattel, The Law of Nations; or, The Principles of Natural Law Applied to the Conduct and to the Affairs of the Nations and Sovereigns, trans. Charles G. Fenwick (Washington, DC: Carnegie Institution, 1916 [1758]), 37–38. See also Georg Cavallar, Imperfect Cosmopolis: Studies in the History of International Legal Theory and Cosmopolitan Ideas (Cardiff: University of Wales Press, 2011), 33–35; and Benton and Straumann, “Acquiring Empire,” 25–26. 144. Pagden, “Law, Colonization,” 6–7. 145. Mark D. Walters, “Mohegan Indians v. Connecticut (1705–1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America,” 33 Osgoode Hall L. J. 785–829 (1995), 790–91. 146. Pagden, “Law, Colonization,” 24.

Notes to Pages 130–139

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147. Seed, Ceremonies, 41– 68. 148. Ibid., 56–57. 149. See generally Dorothy V. Jones, License for Empire: Colonialism by Treaty in Early America (Chicago: University of Chicago Press, 1982). 150. Walters, “Mohegan Indians v. Connecticut,” 803. 151. For a cogent explanation of this point, see Pagden, “Law, Colonization,” 8–14. 152. J. P. Canning, “Law, Sovereignty and Corporation Theory, 1300–1450,” in J. H. Burns, ed., The Cambridge History of Medieval Political Thought c. 350–c. 1450, 454– 76 (Cambridge: Cambridge University Press, 1988), 462– 63. 153. Mónica Brito Vieira, “Mare Liberum vs. Mare Clausum: Grotius, Freitas, and Selden’s Debate on Dominion over the Seas,” 64 J. Hist. Ideas 361–77 (2003), 376. 154. See Digest 8.4.13 (Ulpian); and Digest 43.8.3 (Celsus). 155. Philip D. Curtin, Cross-Cultural Trade in World History (Cambridge: Cambridge University Press, 1984), 139– 40. 156. On Grotius, see J. Basdevant, “Hugo Grotius,” in Pillet, ed., Fondateurs, 125– 267; and La Pradelle, Maîtres et doctrines, 71–92. 157. On De Indis, see J. Basdevant, “Hugo Grotius,” 155–79. 158. Hugo Grotius, Commentary on the Law of Prize and Booty, trans. Gwladys Williams (Oxford: Clarendon Press, 1950 [1606]), 2. 159. Ibid., 244. 160. Ibid., 234–55. 161. Fernando Vázquez should not be confused with his much younger contemporary Gabriel Vázquez, a significant writer on political and legal issues in other areas. 162. See C. H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th Centuries) (Oxford: Oxford University Press, 1967), 42–49; and W. E. Butler, “Grotius and the Law of the Sea,” in Hedley Bull, Benedict Kingsbury, and Adam Roberts, eds., Hugo Grotius and International Relations, 209–20 (Oxford: Clarendon Press, 1990). 163. Decree of James I, Mar. 4, 1604, in Grewe, ed., Fontes, vol. 2, 164. 164. See Alexandrowicz, Introduction, 49–57; and Vieira, “Mare Liberum.” 165. Adam Smyth, “Better Mouldy,” TLS, Dec. 24–31, 2010, 16. 166. On these aspects of Selden’s thought, see Jason P. Rosenblatt, Renaissance England’s Chief Rabbi: John Selden (Oxford: Oxford University Press, 2006). 167. See Eric G. M. Fletcher, “John Selden (Author of Mare Clausum) and His Contribution to International Law,” 19 Grotius Soc. Trans. 1–12 (1933).

Part II. Reason and Its Rivals (ca. 1550–1815) Epigraph: Hugo Grotius, On the Law of War and Peace, trans. Francis W. Kelsey (Oxford: Oxford University Press, 1925 [1625]), 15. 1. Frederick Sherwood Dunn, The Practice and Procedure of International Conferences (Baltimore, MD: Johns Hopkins University Press, 1929), 78.

506

Notes to Pages 139–150

2. Sweden–Holy Roman Empire, Treaty of Osnabrück, Oct. 24, 1648, 1 CTS 119; and France–Holy Roman Empire, Treaty of Münster, Oct. 24, 1648, 1 CTS 271. 3. Innocent X, Protest against the Peace of Westphalia, Nov. 15, 1648, 6(1) Dumont 463.

4. Putting Nature and Nations Asunder 1. Michael Roberts, Gustavus Adolphus: A History of Sweden 1611–1632 (London: Longmans, Green, 1958), 639. 2. J. P. Canning, “Law, Sovereignty and Corporation Theory, 1300–1450,” in J. H. Burns, ed., The Cambridge History of Medieval Political Thought c. 350–c. 1450, 454– 76 (Cambridge: Cambridge University Press, 1988), 473–76. 3. John B. Morrall, Political Thought in Medieval Times, 2nd ed. (London: Hutchinson, 1960), 61– 62; and Alfred Verdross, “Le fondement du droit international,” 16 RdC 247–323 (1927), 311–13. 4. Quoted in Lloyd, Introduction to Jurisprudence, 3rd ed. (London: Stevens and Sons, 1972), 177. 5. See Chapter 6. 6. On Bodin’s conception of natural law, see André Gardot, “Jean Bodin: Sa place parmi les fondateurs du droit international,” 50 RdC 545–747 (1934), 593– 601. 7. See Vitoria, On the Law of War, in Political Writings, ed. Anthony Pagden and Jeremy Laurance (Cambridge: Cambridge University Press, 1991), 293–327. On Vitoria’s reflection on the American Indians, see Chapter 3. 8. Ibid., 312–13. 9. On Mancini’s contribution to international law, see Chapter 7. 10. Balthasar Ayala, On the Law of War and on the Duties Connected with War and on Military Discipline, trans. John Pawley Bate (Washington, DC: Carnegie Institution of Washington, 1912 [1581]), 41. 11. Ibid., 22–23. 12. See Thomas Erskine Holland, Studies in International Law (Oxford: Clarendon Press, 1898). See also Henri Nézard, “Albericus Gentili,” in A. Pillet, ed., Les fondateurs du droit international, 37–93 (Paris: V. Giard and E. Brière, 1904); A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed. (Paris: Éditions internationales, 1950), 93–99; and Arthur Nussbaum, A Concise History of the Law of Nations, 2nd ed. (New York: Macmillan, 1954), 94–101. 13. Alberico Gentili, On the Law of War, trans. John C. Rolfe (Oxford: Clarendon Press, 1933 [1598]), 31–33. 14. Ibid., 33. 15. Ibid., 131–32. 16. Ayala, Law of War, iii. 17. Ibid., 169–245. 18. See Chapter 2.

Notes to Pages 150–156

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19. France-Turkey, Draft Treaty of Amity and Commerce, Feb. 1536, in J. C. Hurewitz, The Middle East and North Africa in World Politics: A Documentary Record, vol. 1, 2nd ed. (New Haven, CT: Yale University Press, 1975), 1– 6. 20. Thomas Naff, “The Ottoman Empire and Europe,” in The Expansion of International Society, ed. Hedley Bull and Adam Watson, 143– 69 (Oxford: Clarendon Press, 1984), 146– 47; and Norman Housley, The Later Crusades, 1274–1580: From Lyons to Alcazar (Oxford: Oxford University Press, 1992), 132–34. 21. Naff, “Ottoman Empire,” 148. 22. Hugo Grotius, Commentary on the Law of Prize and Booty, trans. Gwladys Williams (Oxford: Clarendon Press, 1950 [1606]), 315–17. 23. See Chapter 2. 24. Quoted in Bernice Hamilton, Political Thought in Sixteenth-Century Spain: A Study of the Political Ideas of Vitoria, De Soto, Suárez, and Molina (Oxford: Clarendon Press, 1963), 100. 25. Vitoria, “On the American Indians,” in Political Writings, 280–81. 26. On Isidore and the dualist theory, see Chapter 2. 27. Vitoria, “On the American Indians,” 281. 28. Vitoria, “On Civil Power,” in Political Writings, 40. 29. See also Hamilton, Political Thought, 104–5; and Brian Tierney, “Vitoria and Suárez on Ius gentium, Natural Law, and Custom,” in Amanda Perreau-Saussine and James Bernard Murphy, eds., The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, 101–24 (Cambridge: Cambridge University Press, 2007), 110–14. 30. On Suárez, see L. Rolland, “Suárez,” in Pillet, ed., Fondateurs, 95–124; and La Pradelle, Maîtres et doctrines, 49–70. 31. Francisco Suárez, A Treatise on Laws and God the Lawgiver, in Selections from Three Works of Francisco Suárez, trans. Gwladys L. Williams, Ammi Brown, and John Waldron (Oxford: Clarendon Press, 1944 [1612]), 48. 32. Ibid., 44– 45. 33. On Isidore, see Chapter 2. 34. Suárez, Treatise on Laws, 222–23. 35. Ibid., 331. On the medieval emanationist position, see Chapter 2. 36. Ibid., 47. 37. Ibid., 44– 45, 48. 38. Ibid., 326. 39. Ibid., 332. 40. Ibid., 347. 41. Ibid. 42. On the original meaning of ius gentium in Roman law, see Chapter 1. 43. Suárez, Treatise on Laws, 342. 44. Ibid., 354–56. 45. Ibid., 349.

508

Notes to Pages 157–165

46. Ibid., 351. 47. Ibid., 339– 40. 48. Ibid., 352–54. 49. Paul Guggenheim, “Contributions à l’histoire des sources du droit des gens,” 94 RdC 1–84 (1958), 28. See also Hamilton, Political Thought, 107–9. 50. On Grotius’s views of the ius gentium, see Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Paris: Presses universitaires de France, 1983), 358–99. 51. Ecclesiastes 9:11. 52. Hugo Grotius, War and Peace, trans. Francis W. Kelsey (Oxford: Oxford University Press, 1925 [1625]), 38–39. See Chapter 2 on Aquinas. 53. Ibid., 29–30, 507–8; and Hugo Grotius, Commentary on the Law of Prize and Booty, trans. Gwladys Williams (Oxford: Clarendon Press, 1950 [1606]), 7. 54. Grotius, War and Peace, 40. 55. Ibid., 13. 56. Suárez, Treatise on Laws, 285–309. See also James Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon Press, 1991), 121–25. 57. Grotius, War and Peace, 295. 58. Ibid., 442. 59. Ibid., 44. 60. Ibid., 15. 61. Ibid., 15. 62. Ibid., 461. 63. Ibid., 641– 44. 64. See Chapter 6. 65. On the medieval origin and development of reprisals, see Chapter 2. 66. Grotius, War and Peace, 624–25. 67. See ibid., 634–35. See also, more explicitly, Grotius, Commentary, 26–27. 68. Grotius, War and Peace, 17. 69. Ibid., 29–30. 70. Ibid., 20–21. 71. Ibid. 72. For the most detailed analysis of Grotius’s just war thought, see generally Haggenmacher, Grotius et la doctrine. 73. Grotius, War and Peace, 171. 74. Ibid., 583–84. 75. Ibid., 651–53. 76. Ibid., 663– 64, 689. See also, to the same effect, Vitoria, Law of War, 322–23. 77. George Fréderic de Martens, Précis du droit des gens moderne de l’Europe fondé sur les traités et l’usage, 2nd French ed. (Göttingen: Dieterich, 1801), 17. 78. Roscoe Pound, “Philosophical Theory and International Law,” 1 Bibliotheca Visseriana 71–90 (Leiden: E. J. Brill, 1923), 90.

Notes to Pages 165–173

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79. See, for example, Hersch Lauterpacht, “The Grotian Tradition in International Law,” 23 BYBIL 1–53 (1946). 80. Sovereignty over Islands (Malaysia/Singapore), 2008 ICJ Rep. 12, para. 53. 81. For an example of a later assessment of Grotius as the father of the positivist approach to international law, see Gerhart Niemeyer, “International Law and Social Structure,” 34 AJIL 588– 600 (1940), 597– 600. 82. On the importance of Aristotelian thought in the Middle Ages, see Chapter 2. 83. Thomas Hobbes, Leviathan; or, The Matter, Form and Power of a Commonwealth Ecclesiastical and Civil, ed. Michael Oakeshott (Oxford: Basil Blackwell, 1957 [1651]), 82. 84. Ibid., 85. 85. Ibid., 93. 86. Thomas Aquinas, Summa Theologiae, in Political Writings, ed. and trans. R. W. Dyson (Cambridge: Cambridge University Press, 2002 [1267–74]), 117–18. 87. Hobbes, Leviathan, 112–13. 88. Thomas Hobbes, De Cive or The Citizen, ed. Sterling P. Lamprecht (New York: Appleton-Century-Crofts, 1949 [1642]), 68. 89. See J. Kosters, Les fondements du droit des gens: Contribution à la théorie générale du droit des gens (Leyden: E. J. Brill, 1925), 70–78; and F. H. Hinsley, Sovereignty, 2nd ed. (Cambridge: Cambridge University Press, 1986), 184–86. 90. There is no recent literature of note on Zouche. But see Georges Scelle, “Zouche,” in A. Pillet, ed., Fondateurs, 269–330; Coleman Phillipson, “Richard Zouche,” in John Macdonell and Edward Mason, eds., Great Jurists of the World, 220– 47 (London: John Murray, 1913); and La Pradelle, Maîtres et doctrines, 101– 6. 91. On the fetial law of ancient Rome, see Chapter 1. 92. Richard Zouche, An Exposition of Fecial Law and Procedure, or of Law between Nations, and Questions Concerning the Same, trans. J. L. Brierly (Washington, DC: Carnegie Institution of Washington, 1911 [1650]), 2. 93. See Chapter 5. 94. Zouche, Exposition, 2. 95. Samuel Rachel, Dissertations on the Law of Nature and Nations, trans. John Pawley Bate (Washington, DC: Carnegie Endowment for International Peace, 1916 [1676]), 202. 96. Ibid., 158. 97. Ibid., 209–10. 98. Ibid., 210–11. 99. Ibid., 170. 100. Ibid., 158. 101. Ibid., 223–24. 102. Ibid., 208–9. 103. Ibid., 163.

510

Notes to Pages 173–180

104. Johann Wolfgang Textor, Synopsis of the Law of Nations, trans. John Pawley Bate (Washington, DC: Carnegie Institution, 1916 [1680]), 4–5. 105. See Dominque Gaurier, Histoire du droit international: Auteurs, doctrines et développement de l’Antiquité à l’aube de la période contemporaine (Rennes: Presses universitaires de Rennes, 2005), 229–32; and Wilhelm G. Grewe, The Epochs of International Law, trans. Michael Byers (Berlin: Walter de Gruyter, 2000), 349–55. 106. Thomas Hobbes, De Corporo Politico, ed. J. C. A. Gaskin (Oxford: Oxford University Press, 1994 [1640]), 182. See also, to the same effect, ibid., 228; Hobbes, De Cive, 158; and Hobbes, Leviathan, 342. 107. See, for example, Samuel Pufendorf, On the Law of Nature and Nations, trans. C. H. and W. A. Oldfather (Oxford: Clarendon Press, 1934 [1672]), 229. 108. Benedict de Spinoza, A Treatise on Politics (1677), in The Political Works, ed. and trans. A. G. Wernham, 254–445 (Oxford: Clarendon Press, 1958 [1677]), 285, 295. 109. Ibid., 295. 110. Ibid., 295–97. 111. Benedict de Spinoza, A Treatise on Religion and Politics (1670), in ibid., 139–41. 112. On Pufendorf, see P. Avril, “Pufendorf,” in Pillet, ed., Fondateurs, 331–83; and La Pradelle, Maîtres et doctrines, 117–22. 113. Pufendorf, Nature and Nations, 226. 114. Samuel Pufendorf, Elements of Universal Jurisprudence, trans. William Abbott Oldfather (Oxford: Clarendon Press, 1931 [1660]), 165. 115. Ibid., 166. 116. Ibid., 288–89. See also, to the same effect, Pufendorf, Nature and Nations, 1254. 117. See Chapter 6. 118. Pufendorf, Nature and Nations, 1330–31. 119. Pufendorf, Elements, 165– 66. 120. Pufendorf, Nature and Nations, 227–28. 121. Tetsuya Toyoda, Theory and Politics of the Law of Nations: Political Bias in International Law Discourse of Seven German Court Councilors in the Seventeenth and Eighteenth Centuries (Leiden: Martinus Nijhoff, 2011), 143– 44. 122. Jean Jacques Burlamaqui, Principles of Natural and Politic Law, 3rd ed., trans. Thomas Nugent (London: C. Nourse, 1784 [1747]), 195–96. 123. Ibid., 198–99. 124. Thomas Rutherforth, Institutes of Natural Law, vol. 2 (Cambridge: J. Bentham, 1756), 471–72. 125. Ibid., 473.

5. Of Spiders and Bees 1. Francis Bacon, The New Organon, ed. Lisa Jardine and Michael Silverthorne (Cambridge: Cambridge University Press, 2006 [1620]), 79. 2. See Chapter 6.

Notes to Pages 180–189

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3. See Chapter 4. 4. F. H. Hinsley, Sovereignty, 2nd ed. (Cambridge: Cambridge University Press, 1986), 184–85. 5. See Chapter 6. 6. On Wolff, see Louis Olive, “Wolff,” in A. Pillet, ed., Les fondateurs du droit international, 447–79 (Paris: V. Giard and E. Brière, 1904). 7. Lewis White Beck, Early German Philosophy: Kant and His Predecessors (Cambridge, MA: Harvard University Press, 1969), 261. 8. Karl S. Guthke, The Last Frontier: Imagining Other Worlds from the Copernican Revolution to Modern Science Fiction, trans. Helen Atkins (Ithaca, NY: Cornell University Press, 1990), 254–55. 9. Christian Wolff, The Law of Nations Treated According to a Scientific Method, trans. Joseph H. Drake (Oxford: Clarendon Press, 1934 [1749]), 5– 6. 10. Ibid., 18. 11. Ibid., 292–95. 12. Ibid., 12–13. 13. On the substitution theory, see Chapter 2. 14. Wolff, Law of Nations, 18. 15. Ibid., 294. 16. Ibid. 17. Ibid., 6–7. 18. Ibid., 319. 19. Ibid., 12–15. 20. Ibid., 15–18. 21. Ibid., 16. 22. Ibid., 17. 23. Ibid., 6–7. 24. Ibid., 14. 25. On the necessary law of war, see ibid., 402–53. 26. On the voluntary law of war, see ibid., 453–59. 27. Immanuel Kant, Theory and Practice, in Political Writings, 2nd ed., ed. Hans Reiss; trans. H. B. Nisbet, 61–92 (Cambridge: Cambridge University Press, 1991 [1793]), 91. 28. Immanuel Kant, Perpetual Peace: A Philosophical Sketch (1795), in Political Writings, 98. 29. Ibid., 103. 30. Ibid., 127. 31. Ibid. 32. Ibid., 113. 33. Ibid. 34. Ibid., 126. 35. Ibid., 114.

512

Notes to Pages 189–193

36. See Chapter 6. 37. Fritz Stern, ed., Varieties of History: From Voltaire to the Present (New York: Meridian, 19567), 406, n. 2. 38. Gottfried Wilhelm von Leibniz, “Codex Iuris Gentium (Praefatio)” (1693), in The Political Writings of Leibniz, 2nd ed., ed. and trans. Patrick Riley, 165–76 (Cambridge: Cambridge University Press, 1988). 39. Ibid., 169–70. 40. Frederic Leonard, Receuil des traitez de paix, de trève, de neutralité, de confédération, d’alliance et de commerce, faits par les rois de France, avec tous les princes et potentats de l’Europe, et autres, depuis près de trois siècles, 6 vols. (Paris, 1693). 41. Jacques Bernard and Abraham-Nicolas Amelot de La Houssaie, Recueil des traitez de paix, de trêve, de neutralité, de suspension d’armes, de confédération, d’alliance, de commerce, de garantie, et d’autres actes publics: comme contracts de mariage, testaments, manifestes, declarations de guerre, & c. faits entre les empereurs, rois, républiques, princes, & autres puissances de l’Europe, & des autres parties du monde, depuis la naissance de Jesus-Christ jusqu’à présent: servant à établir les droits des princes, et de fondement à l’histoire . . ., 4 vols. (Amsterdam: Henry et la veuve de T. Boom, 1700). 42. George Fréderic de Martens, Recueil Des Principaux Traites d’Alliance, de Paix, de Treve, de Neutralité, . . . conclus par les Puissances De L’Europe Tant Entre Elles Qu’Avec Les Puissances Et Etats dans d’Autres Parties Du Monde depuis 1761 jusqu’à présent, 7 vols. (Göttingen: Dieterich, 1791–1801). 43. Albert Sorel, Europe and the French Revolution, ed. and trans. Alfred Cobban and J. W. Hunt (London: Collins, 1969 [1885]), 353. 44. For early developments in maritime law in the Middle Ages, see Chapter 2. 45. Richard Zouche, An Exposition of Fecial Law and Procedure, or of Law between Nations, and Questions Concerning the Same, trans. J. L. Brierly (Washington, DC: Carnegie Institution of Washington, 1911 [1650]). On Zouche, see Chapter 4. 46. On Bynkershoek, see Joseph Delpech, “Bynkershoek,” in Pillet, ed., Fondateurs, 385– 446; and A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed. (Paris: Éditions internationales, 1950), 107–15. 47. Cornelius van Bynkershoek, De Dominio Maris, trans. Ralph van Deman Magoffi n (New York: Oxford University Press, 1923 [1702]); and Cornelius van Bynkershoek, The Jurisdiction over Ambassadors in Both Civil and Criminal Cases, trans. Gordon J. Laing (Oxford: Clarendon Press, 1946 [1721]). 48. Cornelius van Bynkershoek, Questions of Public Law, trans. Tenney Frank (Oxford: Clarendon Press, 1930 [1737]), 6. 49. Bynkershoek, Jurisdiction over Ambassadors, 42. 50. Bynkershoek, Questions, 6–7. 51. Ibid., 88. 52. Ibid., 6. 53. Ibid., 7. 54. Ibid.

Notes to Pages 193–197

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55. Ibid. 56. Ibid., 192. 57. Gabriel Bonnot de Mably, Le droit public de l’Europe fondé sur les traités, 2 vols. (Geneva: Campagnie des Libraires, 1748). 58. Michael Sonenscher, Before the Deluge: Public Debt, Inequality, and the Intellectual Origins of the French Revolution (Princeton, NJ: Princeton University Press, 2007), 247, 250–51. 59. Mack Walker, Johann Jakob Moser and the Holy Roman Empire of the German Nation (Chapel Hill, NC: University of North Carolina Press, 1981), 338–39. 60. Ibid., 337– 42; and Albert Leschhorn, Johann Jakob Moser und die Eidgenossenschaft (Zürich: Juris, 1965), 44– 45. 61. Johannes Mattern, “Problems of Method in International Law: Alfred Verdross’ Concept of the Unity of the Legal Order on the Basis of the International Constitution,” in Stuart A. Rice, ed., Methods in Social Science: A Case Book, 118–36 (Chicago, IL: University of Chicago Press, 1931), 125–26. 62. See, for example, ibid., 93–94; and Edwin De Witt Dickinson, The Equality of States in International Law (Cambridge, MA: Harvard University Press, 1920), 122. 63. On Vattel, see A. Mallarmé, “Emer de Vattel,” in Pillet, ed., Fondateurs, 481– 601; and La Pradelle, Maitres et doctrines, 123– 66. 64. Emmerich de Vattel, The Law of Nations; or, The Principles of Natural Law Applied to the Conduct and to the Affairs of the Nations and Sovereigns, trans. Charles G. Fenwick (Washington, DC: Carnegie Institution, 1916 [1758]), 8a. 65. Ibid., 7a. 66. Ibid., 113. 67. Ibid., 12a. 68. Ibid., 248. 69. For illustrations of the citation of Vattel as an authority in British and American courts, see Charles G. Fenwick, “The Authority of Vattel,” 7 Am. Pol. Sci. Rev. 395– 410 (1913). 70. Vattel, Law of Nations, 5a– 6a. 71. Ibid., 10a. 72. Ibid., 306. 73. Ibid. 74. Ibid., 304. 75. Wolfgang Friedmann, Legal Theory, 5th ed. (London: Stevens and Sons, 1967), 116; and Paul Guggenheim, “Contributions à l’histoire des sources du droit des gens,” 94 RdC 1–84 (1958),” 34–35. 76. See Chapter 4. 77. Vattel, Law of Nations, 7. 78. See The Antelope, 23 U.S. (10 Wheat.) 66 (1825), 122. 79. See, for example, Alfred Verdross, “Le fondement du droit international,” 16 RdC 247–323 (1927), 310.

514

Notes to Pages 197–206

80. Vattel, Law of Nations, 9a–10a. 81. Ibid., 271–72 82. See Chapter 2. 83. Vattel, Law of Nations, 279–312. 84. For developments in the nineteenth century in drafting a code of rules on the conduct of war, see Chapter 8. 85. On Martens, see La Pradelle, Maîtres et doctrines, 169–81; and H. Bailby, “Georges-Frédéric de Martens,” in Pillet, ed., Fondateurs, 603–76. 86. George Fréderic de Martens, Précis du droit des gens moderne de l’Europe fondé sur les traités et l’usage, 2nd French ed. (Göttingen: Dieterich, 1801 [1785]), 18. 87. Ibid., 23. 88. Ibid., 7. 89. Ibid., 7–8, 12–14. 90. Ibid., 11–12. 91. Ibid., 106–7. 92. Ibid., 106–9. 93. Ibid., 9. 94. See Chapter 6. 95. For contemporary studies of the phenomenon, see Mably, Droit public, vol. 2, 260– 411; and Mathieu-Antione Bouchaud, Théorie des traités de commerce entre les nations (Paris: Duchesne, 1777). 96. Netherlands-Spain, Truce of Apr. 9, 1609, 5(2) Dumont 99. 97. Netherlands-Spain, Treaty of Peace, Jan. 30, 1648, 1 CTS 1, art. 60. 98. England-Netherlands, Treaty of Apr. 5, 1654, 3 CTS 225, art. 24. 99. See, for example, Netherlands-Spain, Treaty of Peace, Jan. 30, 1648, 1 CTS 1, art. 60; France-Spain, Treaty of the Pyrenees, Nov. 7, 1659, 5 CTS 325, art. 27; and FranceNetherlands, Treaty of Apr. 27, 1662, 7 CTS 139, art. 17. See also, to the same general effect, England-Spain, Treaty of Peace and Friendship, May 23, 1667, 10 CTS 63, art. 3; and England-Spain, Treaty of July 18, 1670, 11 CTS 383, art. 14. 100. Bynkershoek, Questions, 133–34. 101. See Chapter 2. 102. England-Spain, Treaty of Peace and Friendship, May 23, 1667, 10 CTS 63, art. 38. 103. See Chapter 2. 104. See Chapter 3. 105. J. K. Oudendijk, Status and Extent of Adjacent Waters: A Historic Orientation (Leiden: Sijthoff, 1970), 34–35. 106. Percy E. Corbett, Law in Diplomacy (Princeton, NJ: Princeton University Press, 1959), 118–20; and Wyndham L. Walker, “Territorial Waters: The Cannon Shot Rule,” 22 BYBIL 210–31 (1945). 107. On the physiocrats, see Stephen C. Neff, Friends but No Allies: Economic Liberalism and the Law of Nations (New York: Columbia University Press, 1990), 30–33.

Notes to Pages 206–210

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108. On the French Revolution and international law, see Ernest Nys, Études de droit international et de droit politique (Brussels: Alfred Castaigne, 1896), 318– 406; and Robert Redslob, Histoire des grands principes du droit des gens depuis l’antiquité jusqu’à la veille de la Grande Guerre (Paris: A. Rousseau, 1923), 275–332. 109. On the various specific disputes giving rise to the wars in the revolutionary period, see generally T. C. W. Blanning, The Origins of the French Revolutionary Wars (London: Longman, 1986). 110. Wilhelm G. Grewe, ed., Fontes Historiae Juris Gentium: Sources Relating to the History of the Law of Nations, vol. 2 (Berlin: Walter de Gruyter, 1992), 647– 49. 111. David A. Bell, The First Total War: Napoleon’s Europe and the Birth of Modern Warfare (London: Bloomsbury, 2007), 105. 112. Norman D. Bentwich, The Law of Private Property in War (London: Sweet and Maxwell, 1907), 85. 113. France-Spain, Family Compact, Aug. 15, 1761, 42 CTS 85. 114. Patricia Chastain Howe, Foreign Policy and the French Revolution: CharlesFrançois Dumouriez, Pierre LeBrun, and the Belgian Plan, 1789–1793 (Basingstoke: Palgrave Macmillan, 2008), 114, 141. 115. Declaration of Pilnitz, Aug. 27, 1791, 51 CTS 233. 116. See Chapters 7 and 11 for debates about the principle of humanitarian intervention. 117. Grewe, ed., Fontes, vol. 2, 652–56; and Bell, First Total War, 144. 118. Bell, First Total War, 117. 119. Grewe, ed., Fontes, vol. 2, 658–59. 120. John H. Herz, “Idealist Internationalism and the Security Dilemma,” 2 World Politics 157– 80 (1951), 167. See also Marc Belissa, Fraternité universelle et intéret national (1713–1795): Les cosmopolitiques du droit des gens (Paris: Kimé, 1998), 371–74. 121. Grewe, ed., Fontes, vol. 2, 660– 61. See also Belissa, Fraternité universelle, 365– 77, 419–20. 122. Ernest Nys, “The Codification of International Law,” 5 AJIL 871–900 (1911), 890; and La Pradelle, Maîtres et doctrines, 172–74. 123. Robert Ward, An Enquiry into the Foundation and History of the Law of Nations, from the Time of the Greeks and Romans to the Age of Grotius, vol. 1 (London: J. Butterworth, 1795), xii–xiii. See also Randall Lesaffer, “Roman Law and the Early Historiography of International Law: Ward, Wheaton, Hosack and Walker,” in Thilo Marauhn and Heinhard Steiger, eds., Universality and Continuity in International Law, 149–84 (The Hague: Eleven International, 2011), 155–57. 124. Nys, “Codification,” 892–93. 125. Martens, Précis, xv–xvi. 126. Jeremy Bentham, A Fragment on Government and an Introduction to the Principles of Morals and Legislation, ed. Wilfrid Harrison (Oxford: Basil Blackwell, 1960 [1789]), 426.

516

Notes to Pages 211–223

127. On Bentham’s terminological contribution, see Mark W. Janis, “Jeremy Bentham and the Fashioning of ‘International Law’,” 78 AJIL 405–18 (1984). 128. Jeremy Bentham, “Objects of International Law,” in Works, vol. 2, ed. John Bowring (Edinburgh: William Tait, 1838), 538. 129. Jeremy Bentham, “A Plan for an Universal and Perpetual Peace,” part 4 of Principles of International Law, in Works, vol. 2, 546– 60. 130. Great Britain-U.S.A., Jay Treaty, Nov. 19, 1794, 52 CTS 243. 131. The Flad Oyen, 1 C. Rob. 135 (1799), 139. 132. Ibid., 139– 40. 133. Ibid., 140.

Part III. A Positive Century (1815–1914) Epigraph: Théophile Funck-Brentano and Albert Sorel, Précis du droit des gens, 2nd ed. (Paris: E. Plon, Nourrit, 1887), 494. 1. See A. de La Pradelle, Maîtres et doctrine du droit des gens, 2nd ed. (Paris: Éditions internationales, 1950), 183–93. 2. Johann Ludwig Klüber, Droit des gens moderne de l’Europe (Stuttgart: Cotta, 1819). See also Johann Ludwig Klüber, Acten des Wiener Congresses in den Jahren 1814 und 1815, 9 vols. (Osnabrück: Zeller, 1815). 3. Ernest Nys, “The Codification of International Law,” 5 AJIL 871–900 (2006), 881. 4. Louis Renault of France (1907) and T. M. C. Asser of the Netherlands (1911).

6. Breaking with the Past 1. Edmund Burke, Reflections on the Revolution in France, ed. L. G. Mitchell (Oxford: Oxford University Press, 1993 [1790]), 58. 2. Ibid., 37. 3. August Comte, Cours de philosophie positive, 6 vols., 3rd ed. (Paris: J. B. Baillière et fi ls, 1869). See also Auguste Comte and Positivism: The Essential Writings, ed. Gertrud Lenzer; trans. Harriet Martineau (New York: Harper and Row, 1975); and Mary Pickering, Auguste Comte: An Intellectual Biography, 3 vols. (Cambridge: Cambridge University Press, 2006– 09). 4. Comte, Cours, vol. 5, 5–345. 5. Ibid., 346–543. 6. A. C. Crombie, Augustine to Galileo: Science in the Later Middle Ages and Early Modern Times, vol. 2 (Harmondsworth: Penguin, 1959), 44– 45. 7. On the scientific character of positivism, see Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007), 48–52. 8. See S. Kuttner, “Sur les origines du terme ‘droit positif’,” 15 (4th ser.) RHDFE 728– 40 (1936).

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9. See Chapter 1. 10. See C. E. Merriam Jr., History of the Theory of Sovereignty since Rousseau (New York: Columbia University Press,, 1900), 130–57. 11. John Austin, The Province of Jurisprudence Determined (London: Weidenfeld and Nicholson, 1955 [1832]), 193. 12. Ibid., 141– 43. 13. Ibid., 140– 41. See also Brian C. Schmidt, The Political Discourse of Anarchy: A Disciplinary History of International Relations (Albany: State University of New York Press, 1998), 64– 66, 102–7. 14. William Edward Hall, A Treatise on International Law, 3rd ed. (Oxford: Clarendon Press, 1890), 1–2. 15. Oliver Wendell Holmes Jr., “Natural Law,” 32 Harvard L. Rev. 40– 44 (1918), 42. 16. Ibid. 17. Oliver Wendell Holmes Jr., The Common Law (Boston: Little, Brown, 1881), 1. 18. See J. B. Schneewind, “Autonomy, Obligation, and Virtue: An Overview of Kant’s Moral Philosophy,” in Paul Guyer, ed., The Cambridge Companion to Kant, 309– 41 (Cambridge: Cambridge University Press, 1992). 19. David Hume, A Treatise of Human Nature (London: Penguin, 1969 [1739– 40]), 521. 20. See, for example, Georg Schwarzenberger, The Inductive Approach to International Law (London: Stevens, 1965). On Schwarzenberger, see Chapter 10. 21. For use of the term “voluntarism,” see Georg Schwarzenberger, Power Politics: An Introduction to the Study of International Relations and Post-War Planning (London: Jonathan Cape, 1941), 41; Gerhart Niemeyer, Law without Force: The Function of Politics in International Law (Princeton, NJ: Princeton University Press, 1941), 332; and Charles de Visscher, Theory and Reality in Public International Law, 2nd ed. (Princeton, NJ: Princeton University Press, 1968), 52–54. The first use of the word as a technical philosophical term has been credited to the German sociologist Ferdinand Tönnies. 22. See Chapter 5. 23. New York Trust Co. v. Eisner, 256 U.S. 345 (1921), 349. 24. On the pragmatist tradition in that period, see Chapter 5. 25. See A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed. (Paris: Éditions internationales, 1950), 201–10. 26. Henry Wheaton, Elements of International Law (Philadelphia: Carey, Lea and Blanchard, 1836), 45– 48. 27. See La Pradelle, Maîtres et doctrines, 195–99. 28. A.-G. Heffter, Le droit international public de l’Europe, trans. Jules Bergson (Berlin: E.-H. Schroeder, 1857), 4–5. 29. Richard Wildman, Institutes of International Law, vol. 1 (London: William Benning, 1849), 1–5. 30. See La Pradelle, Maîtres et doctrines, 211–18.

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Notes to Pages 229–236

31. Carlos Calvo, Le droit international théorique et pratique précédé d’un exposé historique des progrès de la science du droit des gens, vol. 1, 2nd ed. (Paris: PedoneLauriel, 1870), 104; and Carlos Calvo, Droit international, vol. 1, 3rd ed. (Paris: Pedone-Lauriel, 1880), 118. 32. Calvo, Droit international, vol. 1, 3rd ed., 130. 33. See La Pradelle, Maîtres et doctrines, 233– 48. 34. Théophile Funck-Brentano and Albert Sorel. Précis du droit des gens, 1st ed. (Paris: E. Plon, 1877). 35. Lassa Oppenheim, International Law: A Treatise, 2 vols., 1st ed. (London: Longmans, Green, 1905– 06). 36. Lassa Oppenheim, “The Science of International Law: Its Task and Method,” 2 AJIL 313–56 (1908). 37. See, to this effect, Wildman, Institutes, 2. 38. On the centrality of sanctions and enforcement, see John Westlake, International Law, vol. 1, 2nd ed. (Cambridge: Cambridge University Press, 1910), 6–8, 14, 301, 358; and Oppenheim, International Law, vol. 1, 6–7. 39. See Heinrich Triepel, Droit international et droit interne, trans. René Brunet (Paris: A. Pedone, 1920), 63– 65. 40. Prosper Weil, “Le droit international en quête do son identité,” 237 RdC 3–369 (1992), 77. 41. Triepel, Droit international, 94–96; and Dionisio Anzilotti, Cours de droit international, vol. 1, trans. Gilbert Gidel (Paris: Sirey, 1929), 73–74. 42. Triepel, Droit international, 102–9. 43. See Chapter 4. 44. Triepel, Droit international, 62–109. 45. Ibid., 70–71. 46. Ibid., 87–89. 47. Heinrich Triepel, Völkerrecht und Landesrecht (Leipzig: Hirschfeld, 1899); Heinrich Triepel, “Les rapports entre le droit interne et le droit international,” 1 RdC 73–121 (1923); Dionisio Anzilotti, Il diritto internazionale nei juridizi interni (Bologna: Ditta N. Zanichelli, 1905); and Anzilotti, Cours, 49– 65. 48. For Triepel’s views, see Triepel, Droit international, 11– 65. For Anzilotti’s position, see Anzilotti, Cours, 49– 65. 49. Anzilotti, Cours, 57–59. 50. Alfred Verdross, “Le fondement du droit international,” 16 RdC 247–323 (1927), 275–76. 51. Sereni, Italian Conception, 216. On Anzilotti’s later change of position on this point, see Chapter 9. 52. Jean-Jacques Rousseau, “A Discourse on Political Economy,” in The Social Contract and Discourses, 115–53, trans. G. D. H. Cole (London: Dent, 1913 [1758]), 120–21. See also Wolfgang Friedmann, Legal Theory, 5th ed. (London: Stevens and Sons, 1967),

Notes to Pages 236–241

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238; and Léon Michoud, La théorie de la personalité morale et son application au droit français, vol. 1 (Paris: Librairie Générale de Droit et de Jurisprudence, 1906), 82–85. 53. Jean-Jacques Rousseau, The Social Contract (1762), in The Social Contract and Discourses, 193. 54. On Savigny, see Frederick C. Beiser, The German Historicist Tradition (Oxford: Oxford University Press, 2011), 214–52. 55. On fascist views of international law, see Chapter 9. 56. G. F. W. Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood; trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1991 [1821]), 366. 57. See Erich Kaufmann, “Règles générales du droit de la paix,” 54 RdC 309– 620 (1935), 441– 42. 58. Jochen von Bernstorff and Thomas Dunlap, The Public International Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge: Cambridge University Press, 2010), 21–22. 59. Ibid., 22–23. 60. Ibid., 39, n. 117. 61. On this phase of Kaufmann’s career, see John D. Lewis, The Genossenschafttheory of Otto von Gierke: A Study in Political Thought (Madison, WI: University of Wisconsin Studies in the Political Sciences and History, 1935), 93–94; and Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2001), 179–81. 62. Lewis, Genossenschaft-theory, 93. 63. Erich Kaufmann, Das Wesen des Völkerrechts und die Clausula Rebus Sic Stantibus: Rechtsphilosophische Studie zum Rechts-, Staats- und Vertragsbegriffe (Tübingen: J. C. B. Mohr, 1911). 64. For a thorough treatment, see Wictor Sukiennicki, La souveraineté des États en droit international moderne (Paris: A. Pedone, 1926), 168–211. 65. See Leibniz, “Meditation on the Common Concept of Justice,” in The Political Writings of Leibniz, 2nd ed., ed. and trans. Patrick Riley (Cambridge: Cambridge University Press, 1988), 60; and Leibniz, “On the Notions of Right and Justice,” from the preface to Codex Juris Gentium Diplomaticus (1693), in Leibniz, Selections, ed. Philip P. Weiner (New York: Charles Scribner’s Sons, 1951), 560. 66. On the development of the Rechtsstaat concept, see Leonard Krieger, The German Idea of Freedom: History of a Political Tradition (Chicago, IL: University of Chicago Press, 1957), 252– 61. 67. See Rudolf von Jhering, Law as a Means to an End, trans. Isaac Husik (New York: Macmillan 1914 [1877–83]), 281–325. 68. See Emmanuelle Jouannet, The Liberal-Welfarist Law of Nations: A History of International Law (Cambridge: Cambridge University Press, 2012), 34– 48. 69. Immanuel Kant, Theory and Practice, in Political Writings, 61–92, 2nd ed., ed. Hans Reiss; trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1991 [1793]), 73.

520

Notes to Pages 241–249

70. Immanuel Kant, Perpetual Peace, in ibid., 93–130, 104. (Emphasis in the original.) 71. Ibid. 72. Ibid., 120, fn. 73. Georg Jellinek, L’État moderne et son droit, vol. 1, trans. Georges Fardis (Paris: V. Giard et E. Brière, 1911), 562. 74. Robert Axelrod, The Evolution of Cooperation (New York: Basic, 1984). See Chapter 1. 75. Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London: Longmans, Green, 1927), 74. 76. See, to this effect, Hall, Treatise, 283–84. 77. See, for example, Calvo, Droit international, vol. 1, 386– 411. See also Panayis A. Papaligouras, Théorie de la société internationale (Zürich: Éditions Polygraphiques, 1941), 279–316. 78. See, for example, Wheaton, Elements, 95–129; Hall, Treatise, 294, 303–5; and Funck-Brentano and Sorel, Précis, 212–23. For a survey of state practice in this area, see Calvo, Droit international, vol. 1, 238–308. 79. See, for example, T. J. Lawrence, The Principles of International Law, 3rd ed. (Boston: D. C. Heath, 1905), 119–21. 80. See Chapters 4 and 5. 81. For an especially strong assertion of the thesis, see Alphonse Rivier, Principes des droits des gens, vol. 1 (Paris: A. Rousseau, 1896), 253– 407. 82. See J. L. Brierly, The Basis of Obligation in International Law, and Other Papers (Oxford: Clarendon Press, 1958), 3–9. 83. Thomas Aquinas, Summa Theologica, in Political Writings, ed. R. W. Dyson (Cambridge: Cambridge University Press, 2002 [ca. 1270]), 117–18. 84. See, for example, Hall, Treatise, 265–71; and Oppenheim, vol. 1, International Law, 177–81. 85. Westlake, International Law, vol. 1, 306–9. 86. Sereni, Italian Conception, 233–34. 87. Heffter, Droit international, 56– 69; Wheaton, Elements, 81–82, 95–129; Calvo, Droit international, vol. 1, 309–11; Hall, Treatise, 45–58; and Oppenheim, International Law, vol. 1, 158–59. 88. See, for example, Wheaton, Elements, 81–82; and Calvo, Droit international, vol. 1, 309–11. 89. Ashburton to Webster, July 28, 1842, 30 BFSP 195–200, 196. 90. Webster to Fox, Apr. 24, 1841, 29 BFSP 1129–39, 1137–38. 91. See Chapter 5. 92. Oppenheim, “Science,” 335–36. 93. See Chapter 9. 94. See, for example, Carl Bergbohm, Staatsverträge und Gesetze als Quellen des Völkerrechts (Dorpat: C. Matthiesen, 1877), 20; Jellinek, L’État moderne, vol. 1, 560; and Oppenheim, International Law, vol. 1, 4.

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95. See Chapter 3. 96. See Chapter 8. 97. See J. Kosters, Les Fondements du Droit des Gens: Contribution à la Théorie Générale du Droit des Gens (Leyden: E. J. Brill, 1925), 231– 46. 98. Rivier, Principes, vol. 1, 35–57. See also Anthony Carty, Philosophy of International Law (Edinburgh: Edinburgh University Press, 2007), 50–51. 99. See generally Stephen C. Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005), 167–214. 100. Oppenheim, “Science,” 354. 101. On medieval just war doctrine, see Chapter 2. 102. See Christopher Coker, Barbarous Philosophers: Reflections on the Nature of War from Heraclitus to Heisenberg (London: Hurst, 2010), 193–206. 103. Erich Kaufmann, Das Wesen des Völkerrechts und die Clausula Rebus Sic Stantibus: Rechtsphilosophische Studie zum Rechts-, Staats- undVertragsbegriffe (Tübingen: J. C. B. Mohr, 1911), 146. 104. F. de Martens, Traité de droit international, vol. 1 (Paris: A. Maresq, 1883), 233. 105. See Gerhardt Niemeyer, Law without Force (Princeton, NJ: Princeton University Press, 1941), 174–76. 106. Henry Bonfi ls, Manuel de droit international public, 1st ed. (Paris: Rousseau, 1894), 63.

7. Dissident Voices 1. See, to this effect, Theodore D. Woolsey, Introduction to the Study of International Law, 5th ed. (New York: Charles Scribner’s Sons, 1878), 13–14, 23. 2. See Chapter 8. 3. See Chapter 6. 4. Franz von Liszt, Le droit international: Exposé systématique. trans. Gilbert Gidel (Paris: A. Pedone, 1927), 14–15. 5. On Pillet, see A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed. (Paris: Pedone, 2004), 307–23. 6. Antoine Pillet, “Le droit international public: Ses éléments constitutifs, son domaine, son objet,” 1 RGDIP 1–32 (1894),” 13–18. 7. Ernest Nys, Le droit international: Les principes, les théories, les faits, vol. 1, 2nd ed. (Brussels: Weissenbruch, 1912), 153–55. 8. Henry W. Halleck, International Law; or, Rules Regulating the Intercourse of States in Peace and War (San Francisco: H. H. Bancroft, 1861). 9. Henry Maine, International Law (New York: Henry Holt, 1888), 32–34. 10. L.-B. Hautefeuille, Des droits et devoirs des nations neutres en temps de guerre maritime, 2nd ed., 3 vols. (Paris: Guillaumin, 1858). 11. Carl von Kaltenborn, Die Vorläufer des Hugo Grotius auf dem Gebiete des ius naturae et gentium sowie der Politik im Reformationszeitalter (Leipzig: G. Mayer, 1848).

522

Notes to Pages 264–270

12. Ludwik Ehrlich, “The Development of International Law as a Science,” 105 RdC 173–265 (1962), 246– 48. 13. Henry Bonfi ls, Manuel de droit international public, 1st ed. (Paris: Rousseau, 1894), 17. 14. Ibid., 16–18. 15. Johann Kaspar Bluntschli, Le droit international codifié, trans. M. C. Lardy (Paris: Guillaumin, 1870). 16. Johann Kaspar Bluntschli, The Theory of the State, 3d ed, trans. D. G. Ritchie, P. E. Matheson, and R. Lodge (Oxford: Clarendon Press, 1895), 105. 17. Bluntschli, Droit international, 1. 18. Bluntschli, Theory of the State, 297, n. 2. 19. Bluntschli, Droit international, 4. 20. Ibid., 5. 21. Ibid., 57. 22. Ibid., 58–59. 23. Ibid., 58. 24. Ibid., 226–27. 25. See Chapter 10. 26. On Lorimer, see La Pradelle, Maîtres et doctrines, at 219–29. 27. See Chapter 1. 28. James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities, vol. 1 (Edinburgh: William Blackwood and Sons, 1883), 83. 29. James Lorimer, Studies National and International (Edinburgh: W. Green, 1890), 107. 30. Lorimer, Institutes, vol. 1, 14. 31. Ibid., 11–14. 32. Lorimer, Studies, 152–54. 33. Lorimer, Institutes, vol. 1, 163. 34. Ibid., 54. 35. Ibid., 58. 36. Ibid., vii–viii. 37. Ibid., vol. 2, 194. 38. Ibid., vol. 1, 47. 39. Ibid., 9–11. 40. Ibid., 38. 41. Ibid., 37–50. 42. Ibid., 33. 43. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. R. H. Campbell and A. S. Skinner (Indianapolis, IN: Liberty Fund, 1976 [1776]), 456. 44. See Chapter 5.

Notes to Pages 271–277

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45. Quoted in W. M. Curtiss, The Tariff Idea (Irvington-on-Hudson, NY: Foundation for Economic Education, 1953), 63. 46. George Washington, “Farewell Address,” in Ruhl J. Bartlett, ed., The Record of American Diplomacy: Documents and Readings in the History of American Foreign Relations, 4th ed., 86–88 (New York: Alfred A. Knopf, 1964 [1796]), 87. (Emphasis in the original.) 47. Frédéric Bastiat, “Peace and Freedom or the Republican Budget,” in ‘The Law,’ ‘The State,’ and Other Political Writings, 1843–1850, trans. Jane Willems and Michel Willems, 282–327 (Indianapolis, IN: Liberty Fund, 2012 [1849]), 317. 48. Jacob Viner, “The Intellectual History of Laissez Faire,” 3 JLE 45– 69 (1960), 61. 49. Ferdinand Tönnies, Community and Civil Society, trans. José Harris and Margaret Hollis (Cambridge: Cambridge University Press, 2001 [1887]), 243. 50. France–Great Britain, Cobden-Chevalier Treaty, Jan. 23, 1860, 121 CTS 243. 51. See Stephen C. Neff, Friends but No Allies: Economic Liberaism and the Law of Nations (New York: Columbia University Press, 1990), 38–71; and Emmanuelle Jouannet, The Liberal-Welfarist Law of Nations: A History of International Law, trans. Christopher Sutcliffe (Cambridge: Cambridge University Press, 2012), 50–57. 52. Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Commonwealth, ed. and trans. Julian H. Franklin (Cambridge: Cambridge University Press, 1992), 39– 42. 53. See Chapter 5. 54. Elihu Root, “The Basis of Protection to Citizens Residing Abroad,” 4 AJIL 517– 28 (1910), 521. 55. Edwin M. Borchard, The Diplomatic Protection of Nationals Abroad; or, The Law of International Claims (New York: Bank, 1915), 39– 40. 56. F. de Martens, Traité de droit international, vol. 1 (Paris: A. Maresq, 1883), 14–15. 57. Pasquale Fiore, “Some Considerations on the Past, Present and Future of International Law,” 6 ASIL Procs. 15–36 (1912), 22–24. See also Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2001), 54–57. 58. Samuel Flagg Bemis, The Latin American Policy of the United States: A Historical Interpretation (New York: Harcourt, Brace and World, 1943), 412, n. 40. 59. See Leonidas García, “La doctrina Tobar,” 1 Revista de la Sociedad ‘JurídicoLiteraria’ 25–71 (1913). 60. General Treaty of Peace and Amity, Dec. 20, 1907, 206 CTS 63, Additional Convention, art. 1. 61. Sec’y of State Bryan, Circular, Nov. 7, 1913, [1913] FRUS 856. 62. Carlos Calvo, Le droit international théorique et pratique, vol. 2, 3d ed. (Paris: Pedone-Lauriel, 1880), 225–26. 63. See Donald R. Shea, The Calvo Clause: A Problem of Inter-American International Law and Diplomacy (Minneapolis, MN: University of Minnesota Press, 1955).

524

Notes to Pages 277–282

64. Venezuela Constitution, Apr. 27, 1881, 72 BSFP 977, art. 10. 65. Lars Schoultz, Beneath the United States: A History of U.S. Policy toward Latin America (Cambridge, MA: Harvard University Press, 1998), 272–75. 66. See, to this effect, Tinoco Arbitration (Great Britain v. Costa Rica), 1 RIAA 369 (1923), 380–82. 67. See John Stuart Mill, “A Few Words on Non-Intervention,” in Collected Works of John Stuart Mill, vol. 21, ed. John M. Robson, 215–57 (Toronto: University of Toronto Press, 1984 [1867]). 68. John Stuart Mill, “Vindication of the French Revolution of February 1848,” in ibid., vol. 20, 340– 48; and Mill, “Non-Intervention,” 123–24. 69. For the agreement between Austria and Russia for Russian aid, see AustriaRussia, Convention on the Reception of Russian Troops, June 10, 1849, 103 CTS 93. 70. Mill, “Non-Intervention,” 121–24. 71. Institute of International Law, Rights and Duties of Foreign Powers as Regards the Established and Recognized Governments in Case of Insurrection (1900), art. 2(2), in James Brown Scott, ed., Resolutions of the Institute of International Law Dealing with the Law of Nations (New York: Oxford University Press, 1916), 157–59. On the Institute of International Law, see Chapter 8. 72. See Chapter 6. 73. For future developments regarding liberalism, see Chapter 9. 74. On Herder, see Hans Kohn, The Idea of Nationalism: A Study in Its Origins and Background (New York: Macmillan, 1961), 427–51; Friedrich Meineke, Historism: The Rise of a New Historical Outlook, trans J. E. Anderson (London: Routledge and Kegan Paul, 1972), 295–372; Sonia Sikka, Herder on Humanity and Cultural Difference: Enlightened Relativism (Cambridge: Cambridge University Press, 2011); and Frederick C. Beiser, The German Historicist Tradition (Oxford: Oxford University Press, 2011), 98–116. 75. See Martens, Traité, vol. 1, 192, identifying Madame de Staël as a progenitor of the nationality school. 76. Bluntschli, Theory of the State, 71. 77. Giuseppe Mazzini, The Duties of Man and Other Essays, trans. Ella Noyes, Thomas Okey, and L. Martineau (London: J. M. Dent and Sons, 1907), 53. 78. Ibid., 55. 79. See Pasquale Mancini, Della nazionalità come fondamento del dritto delle genti (Turin: Eredi Botta, 1851). 80. Angelo Piero Sereni, The Italian Conception of International Law (New York: Columbia University Press, 1943), 162–63. See also IDI Annuaire, vol. 1 (1874), 123–68. 81. Giorgio del Vecchio, Philosophy of Law, 8th ed., trans. Thomas Owen Martin (Washington, DC: Catholic University Press, 1953), 361. 82. Sereni, Italian Conception, 194. 83. On Fiore’s support for the nationality theory, see Enrico Catellani, “Les maîtres de l’école italienne du droit international au XIXe siècle,” 46 RdC 705–826 (1933), 732–36.

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84. See ibid., 729–31. 85. Terenzio Mamiani della Rovere, Rights of Nations or, The New Law of European States Applied to the Affairs of Italy, trans. Roger Acton (London: W. Jeffs, 1861), 39. 86. Ibid., 45. 87. Ibid., 16. 88. Ibid., 39. 89. Ibid., 260. 90. Ibid., 261. 91. Ibid., 20. 92. Ibid., 189–92. 93. Ibid., 179–80. 94. Ibid., 143– 45. 95. Ibid., 193–94. 96. Mill, “Vindication,” 348. 97. John Stuart Mill, “Considerations on Representative Government,” in On Liberty and Other Essays, ed. John Gray, 203– 467 (Oxford: Oxford University Press, 1991 [1861]), 428. On the affinity between liberalism and nationalism (at least of the moderate kind), see James Mayall, Nationalism and International Society (Cambridge: Cambridge University Press, 1990), 38– 45. 98. Bluntschli, Theory of the State, 104. 99. Ibid., 105– 06. 100. Ibid., 105. 101. Ibid., 106. 102. Ibid., 93. 103. See Chapter 10. 104. Theodore Zeldin, France 1848–1945: Politics and Anger (Oxford: Oxford University Press, 1979), 294. 105. Friedrich Engels, Socialism: Scientific and Utolpian (London: Bookmarks, 1993 [1880]), 107. 106. See, for example, Georg G. Iggers, The Cult of Authority: The Political Philosophy of the Saint-Simonians: A Chapter in the Intellectual History of Totalitarianism, 2nd ed. (The Hague: Martinus Nijhoff, 1970). 107. Juan Bautista Alberdi, “Report on the Suitability and Aims of a General American Congress,” in Documents on Inter-American Cooperation, vol. 1, ed. Robert N. Burr and Roland D. Hussey, 88–94 (Philadelphia, PA: University of Pennsylvania Press, 1955 [1844]), 89. 108. Ibid., 92. 109. Ibid., 93. 110. H. B. Jacobini, A Study of the Philosophy of International Law as Seen in the Works of Latin American Writers (The Hague: Martinus Nijhoff, 1954), 69. 111. Ibid., 70.

526

Notes to Pages 288–291

112. Arthur P. Whitaker, The Western Hemisphere Idea: Its Rise and Decline (Ithaca, NY: Cornell University Press, 1954), 65. 113. Règlement for the Free Navigation of Rivers, Mar. 24, 1815, 64 CTS 13. 114. On the various international river commissions, see F. S. L. Lyons, Internationalism in Europe 1815–1914 (Leiden: A. W. Sijthoff, 1963), 53– 64. 115. Constantinople Convention, Oct. 29, 1888, 171 CTS 241. 116. See France–Great Britain, Declaration Respecting Egypt and Morocco, Apr. 8, 1904, 195 CTS 198, art. 6. 117. Great Britain–U.S.A., Hay-Pauncefort Treaty, Nov. 18, 1901, 190 CTS 215. 118. Treaty Relative to the Formation of a General Postal Union, Oct. 9, 1874, 147 CTS 136. 119. Convention for the Formation of a Universal Postal Union, June 1, 1878, 152 CTS 235. See also Paul S. Reinsch, “International Unions and Their Administration,” 1 AJIL 579– 623 (1907), 586–89. 120. International Telegraphic Convention, May 17, 1865, 130 CTS 198. 121. See Reinsch, “International Unions,” 582–85. 122. Radiotelegraphy Convention, Nov. 3, 1906, 203 CTS 101. 123. Convention on Collisions at Sea, Sep. 23, 1910, 212 CTS 178; and Convention on Assistance and Salvage at Sea, Sep. 23, 1910, 212 CTS 187. 124. See International Convention on Sugar Bounties, Mar. 5, 1902, 191 CTS 56, art. 7. 125. Paul S. Reinsch, Public International Unions: Their Work and Organization (Boston, MA: Ginn, 1911), 4. See also Pitman B. Potter, “Développement de l’organisation internationale (1815–1914),” 64 RdC 71–156 (1938). 126. Pitman B. Potter, “Origin of the Term International Orga nization,” 39 AJIL 803– 6 (1945), 805– 6. 127. See J. C. Bluntschli, “Die Organisation des europäischen Staatenvereins” (1878), in Gesammelte kleine Schriften von J. C. Bluntschli, vol. 2, 279–312 (Nördlingen: Beck, 1881), 307– 09. 128. Martens, Traité, vol. 1, 236. 129. Reinsch, Public International Unions, 2. 130. Ibid., 141. 131. Ibid., 2. 132. Ibid., 5. 133. Georg Jellinek, Die Lehre von den Staatenverbindungen (Vienna: Alfred Hölder, 1882), 111. 134. Ibid., 109. 135. Ibid., 112. 136. On sociological jurisprudence, see generally Wolfgang Friedmann, Legal Theory, 5th ed. (London: Stevens and Sons, 1967), 243–52. 137. See Zeldin, France 1848–1945: Politics and Anger, 276–318. 138. See, in par ticu lar, Émile Durkheim, The Division of Labor in Society, trans. George Simpson (New York: Free Press, 1933 [1893]). See also Steven Lukes, Émile

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Durkheim: His Life and Work. A Historical and Critical Study (Harmondsworth: Penguin, 1973). 139. On Álvarez, see La Pradelle, Maîtres et doctrines, 423– 40. 140. See Carl Landauer, “A Latin American in Paris: Alejandro Álvarez’s Le droit international américain,” Leiden J. Int’l L. 957–81 (2006). On Alvarez’s later activities, see Chapters 9 and 10. 141. Alejandro O. Álvarez, Une nouvelle conception des études juridiques et de la codification du droit civil (Paris: Librairie générale de droit et de jurisprudence, 1904). 142. Ibid., 133–38. 143. See Chapter 9. 144. Amos S. Hershey, The Essentials of International Public Law (New York: Macmillan, 1912), 19. 145. Bonfi ls, Manuel, 3. 146. Ibid., 7. 147. Ibid., 3–5, 7–8, 11. 148. See, for example, Jochen von Bernstorff and Thomas Dunlap, The Public International Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge: Cambridge University Press, 2010), 18–21. 149. See, in this regard, the discussion of the New Haven School in Chapter 10. 150. Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy, trans. Thomas R. Hanley (Indianapolis, IN: Liberty Fund, 1998 [1936]), 124. 151. Alberdi, “Report,” 92. 152. A. de La Pradelle, “La question chinoise,” 8 RGDIP 272–340 (1908), 327–33. 153. Ibid., 325– 40. 154. Letter Arntz to G. Rolin-Jaequemyns, 8 (1st ser.) RDILC 673–75 (1876). 155. G. Rolin-Jaequemyns, “Notes sur la théorie du droit d’intervention, à propos d’une lettre de M. Le Prof. Arntz,” ibid., 675–82. 156. Antoine Rougier, “La théorie de l’intervention d’humanité,” 17 RGDIP 468– 526 (1910). 157. Ibid., 471. 158. Ibid., 478–79. 159. Ibid., 489–97.

8. In Full Flower 1. Treaty of Paris, Mar. 30, 1856, 114 CTS 409, art. 11. 2. On this incident, see David J. Bederman, “The 1871 London Declaration, Rebus sic Stantibus and a Primitivist View of the Law of Nations,” 82 AJIL 1– 40 (1988). 3. See Romain Yakemtchouk, “Les origins de l’Institut de Droit International,” 77 RGDIP 373– 423 (1973).

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Notes to Pages 301–307

4. F. S. L. Lyons, Internationalism in Europe 1815–1914 (Leiden: A. W. Sijthoff, 1963), 218–21. 5. Ibid., 221. 6. See Chapter 9 for the later founding of the Hague Academy. 7. On Scott, see A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed. (Paris: Éditions internationales, 1950), 405–22. 8. On the American Institute, see Samuel Flagg Bemis, The Latin American Policy of the United States: A Historical Interpretation (New York: Harcourt, Brace and World, 1943), 238– 40. 9. It was originally entitled Zeitschrift für internationales Privat- und Strafrecht. 10. For the principal work of Olivart, see Rafael Conde y Luque, marquis of Olivart, Tratado de derecho internacional publico, 4 vols., 4th ed. (Madrid: V. Suárez, 1903– 4). 11. James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities, vol. 1 (Edinburgh: William Blackwood and Sons, 1883), 61– 62. 12. Lassa Oppenheim, International Law: A Treatise, vol. 1, 1st ed. (London: Longmans, Green, 1905), vii. 13. Manfred Lachs, The Teacher in International Law (Teachings and Teaching) (The Hague: Martinus Nijhoff, 1982), 146. 14. Pitman B. Potter, “Political Science in the International Field,” 17 Am. Pol. Sci. Rev. 381–91 (1923), 386. 15. Ibid., 386. 16. See Liste des livres offerts en don à l’Université de Harvard (Cambridge, Massachusetts, United States of America) par le marquis de Olivart (Madrid: R. Álvarez, 1912). See also Ramón de Dalmau y de Olivart, Marqués de Olivart, Bibliographie du droit international, 3 vols., 2nd ed. (Paris: A. Pedone, 1905–10). 17. John Stuart Mill, “Inaugural Address Delivered to the University of St. Andrews,” Collected Works of John Stuart Mill, vol. 21, ed. John M. Robson (Toronto: University of Toronto Press, 1984 [1867]), 246. 18. Westlake, “Introductory Lecture,” Oct. 17, 1888, in The Collected Papers of John Westlake on Public International Law (Cambridge: Cambridge University Press, 1914), 412–13. 19. Potter, “Political Science,” 386–87. 20. Roger Chickering, Imperial Germany and a World without War: The Peace Movement and German Society, 1892–1914 (Princeton, NJ: Princeton University Press, 1975), 42. 21. James Crawford, “Public International Law in Twentieth-Century England,” in Jack Beatson and Reinhard Zimmermann, eds., Jurists Uprooted: German-Speaking Emigré Lawyers in Twentieth-Century Britain, 681–707 (Oxford: Oxford University Press, 2004), 687. 22. For Mancini’s chief contribution to international law, see Chapter 7.

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23. See Amancio Alcorta, Tratado de deerecho internacional (Buenos Aires: Biedma, 1878). 24. See Robert Phillimore, Commentaries upon International Law, 4 vols. (London: W. G. Benning, 1854– 61). 25. See Kent’s Commentary upon International Law, ed. J. T. Abdy (Cambridge: Deighton, Bell, 1866). 26. F. de Martens, Traité de droit international, 3 vols. (Paris: A. Maresq, 1883). 27. Obituary of Martens by C. L. Kamarowsky, in 23 IDI Annuaire 538–43 (1910), 543. 28. See Jaan Kross, Professor Martens’ Departure, trans. Anselm Hollo (London: Harvill, 1994 [1984]). 29. On Renault, see La Pradelle, Maîtres et doctrines, 249– 61. 30. George A. Finch, The Sources of International Law (Washington, DC: Carnegie Endowment for International Peace, 1937), 41. 31. Martens, Traité, vol. 1, 219–30. 32. Ibid., 232–33. 33. Fauchille, Louis Renault, 20–24. 34. Barbara W. Tuchman, The Proud Tower: A Portrait of the World before the War 1890–1914 (New York: Macmillan, 1966), 332, quoting Baron Marschall von Bieberstein, the German delegate to the Second Hague Peace Conference of 1907. 35. See, on this point, C. H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th Centuries) (Oxford: Clarendon Press, 1967), 234–37. 36. William Edward Hall, A Treatise on International Law, 3rd ed. (Oxford: Clarendon Press, 1890), 42. 37. Lewis Henry Morgan, Ancient Society (New York: H. Holt, 1877), 8–18. 38. See James Lorimer, Institutes, vol. 1, 101–3; Thedore D. Woolsey, Introduction to the Study of International Law, 5th ed. (New York: Charles Scribner’s Sons, 1878), 3– 4; Henry Bonfi ls, Manuel de droit international public, 1st ed. (Paris: Rousseau, 1894), 23–24, 108; and Ernest Nys, Le droit international: Les principes, les théories, les faits, vol. 1 (Brussels: Weissenbruch, 1912), 132–37. See also Ram Prakash Anand, “Universality of International Law: An Asian Perspective,” in Thilo Marauhn and Heinhard Steiger, eds., Universality and Continuity in International Law, 87–105 (The Hague: Eleven, 2011), 95–99. 39. On the concept of “civilized” states in international law, see generally Gerrit W. Gong, The Standard of “Civilization” in International Society (Oxford: Clarendon Press, 1984); and Wilhelm G. Grewe, The Epochs of International Law, trans. Michael Byers (Berlin: Walter de Gruyter, 2000), 445–58. 40. Phillimore, Commentaries, vol. 1, 23–24. 41. Bonfi ls, Manuel, 109. 42. Antonio Truyol y Serra, “L’expansion de la société internationale aux XIXe et XXe siècles,” 116 RdC 89–179 (1965), 153–54.

530

Notes to Pages 312–315

43. Treaty of Paris, Mar. 30, 1856, 114 CTS 409, art. 7. See also Tetsuya Toyoda, “L’aspect universaliste du droit international européen du 19ème siècle et le statut juridique de la Turquie avant 1856,” 8 JHIL 19–37 (2006); and Gong, Standard, 106–19. 44. See Edward V. Gulick, Peter Parker and the Opening of China (Cambridge, MA: Harvard University Press, 1973). On the Chinese role in the international system, see Immanuel C. Y. Hsü, China’s Entrance into the Family of Nations: The Diplomatic Phase 1858–1880 (Cambridge, MA: Harvard University Press, 1960); and Gong, Standard, 130– 63. 45. Emmerich de Vattel, The Law of Nations; or, The Principles of Natural Law Applied to the Conduct and to the Affairs of the Nations and Sovereigns, trans. Charles G. Fenwick (Washington, DC: Carnegie Institution, 1916 [1758]), 40. 46. Ibid., 235. See Gulick, Peter Parker, 89–90. 47. Lydia H. Liu, “Legislating the Universal: The Circulation of International Law in the Nineteenth Century,” in Lydia H. Liu, ed., Tokens of Exchange: The Problem of Translation in Global Circulations, 127– 64 (Durham, NC: Duke University Press, 1999), 136– 46. 48. Ibid., 143. 49. Hsü, China’s Entrance, 125–38; and Jing Liao, “The Contributions of NineteenthCentury Christian Missionaries to Chinese Library Reform,” 41 Libraries and Culture 360–71 (2006), 365. 50. Hsü, China’s Entrance, 138. On Martin’s life and career, see generally Ralph R. Covell, W. A. P. Martin, Pioneer of Progress in China (Washington, DC: Christian University Press, 1976). On the translation of international-law texts into Chinese, see Rune Svarverud, International Law as World Order in Late Imperial China: Translation, Reception and Discourse, 1847–1911 (Leiden: Brill, 2007), 75–98, 102–27. 51. See Chapter 5. 52. On the importance of positivist and utilitarian thought in Nishi’s later writing and teaching, see generally Thomas R. H. Havens, “Comte, Mill, and the Thought of Nishi Amane in Meiji Japan,” 27 J. Asian Stud. 217–28 (1968). 53. John Peter Stern, The Japanese Interpretation of the “Law of Nations,” 1854–1874 (Princeton, NJ: Princeton University Press, 1979), 77–78. 54. Ibid., 63– 66, 70–71. 55. Ibid., 81. 56. Takahashi Sakuyei, The Influence of Grotius in the Far East (New York: Brooklyn Institute of Arts and Sciences, 1908), 12–13. 57. See Takahashi Sakuyei, The Application of International Law during the ChinoJapanese War (London: Stevens and Sons, 1898); and Ariga Nagao, La guerre sinojaponaise au point de vue du droit international (Paris: A. Pedone, 1896). 58. Alexis Dudden, “Japan’s Engagement with International Terms,” in Liu, ed., Tokens of Exchange, 184–85.

Notes to Pages 315–317

531

59. On Boissonade’s career in Japan, see ibid., 176–78. On the Taiwan expedition, see Marius B. Jansen, The Making of Modern Japan (Cambridge, MA: Harvard University Press, 2000), 423–24; and Stern, Japanese Interpretation, 118–24. 60. See Chapter 3. 61. Stanford J. Shaw, History of the Ottoman Empire and Modern Turkey. Empire of the Gazis: The Rise and Decline of the Ottoman Empire, 1280–1808, vol. 1 (Cambridge: Cambridge University Press, 1976), 29–30. 62. France–Ottoman Empire, Draft Treaty of Amity and Commerce, Feb. 1536, in J. C. Hurewitz, The Middle East and North Africa in World Politics: A Documentary Record, 2nd ed., vol. 1 (New Haven, CT: Yale University Press, 1975), 1– 6. See also Shaw, History, vol. 1, 97–98. 63. France-Turkey, Capitulations, May 28, 1740, 36 CTS 41. On the eventual abrogation of the capitulations in 1923, see Chapter 9. 64. China-Russia, Treaty of Peace and Boundaries, Oct. 21, 1727, 33 CTS 23, art. 4. See also Hsü, China’s Entrance, 139– 40. 65. China–Great Britain, Treaty of Nanking, Aug. 28, 1842, 93 CTS 465. On the actual legal character of the “Opium War” as an armed reprisal rather than as a true war, see Chapter 6. 66. Westel W. Willoughby, Foreign Rights and Interests in China, 2nd ed. (Baltimore, MD: Johns Hopkins University Press, 1927), 558–59. 67. China–U.S.A., Treaty of Wanghia, July 3, 1844, 97 CTS 105, arts. 21, 24, 25; China-France, Treaty of Friendship, Commerce and Navigation, Oct. 24, 1844, 97 CTS 375, arts. 25, 27, 28; and China-Sweden, Treaty of Peace, Friendship and Commerce, Mar. 20, 1847, 100 CTS 445, arts. 21, 24, 25. 68. For a full list, see Thomas F. Willard, The End of Extraterritoriality in China (Shanghai: A.B.C. Press, 1931), 26. 69. See China-Peru, Treaty of Friendship, Commerce and Navigation, Jun 26, 1874, 148 CTS 35, arts. 12–14; Brazil-China, Treaty of Friendship, Commerce and Navigation, Oct. 3, 1881, 159 CTS 103, arts. 2–3; China-Mexico, Treaty of Amity and Commerce, Dec. 14, 1899, 188 CTS 203, arts. 2–3; and China-Japan, Treaty of Commerce and Navigation, July 21, 1896, 183 CTS 152, arts. 20–22. 70. Great Britain–Siam, Treaty of Friendship and Commerce, Apr. 18, 1855, 113 CTS 83, art. 2. 71. See Siam–U.S.A., Treaty of Amity and Commerce, May 29, 1856, 115 CTS 111, art. 2; France-Siam, Treaty of Friendship, Commerce and Navigation, Aug. 15, 1856, 115 CTS 391, arts. 8–9; Denmark-Siam, Treaty of Friendship, Commerce and Navigation, May 21, 1858, 119 CTS 71, arts. 9–10; Italy-Siam, Treaty of Commerce and Navigation, Oct. 3, 1868, 138 CTS 123, art. 9; and Spain-Siam, Treaty of Friendship, Navigation and Commerce, Feb. 23, 1870, 141 CTS 51, arts. 6–7. 72. Japan–U.S.A., Treaty on Rights of American Citizens in Japan, June 17, 1857, 117 CTS 43. See also F. C. Jones, Extraterritoriality in Japan and the Diplomatic Relations Resulting in Its Abolition (New Haven, CT: Yale University Press, 1931), 1–70; and

532

Notes to Pages 317–321

Richard T. Chang, The Justice of the Western Consular Courts in Nineteenth-Century Japan (Westport, CT: Greenwood Press, 1984). 73. Hsü, China’s Entry, 138– 45. 74. Great Britain–Japan, Treaty of Commerce and Navigation, July 16, 1894, 180 CTS 257, art. 18. See also Japan–U.S.A., Treaty of Commerce and Navigation, Nov. 22, 1894, 180 CTS 407, art. 17. See also Jones, Extraterritoriality, 128– 62. 75. See Chapters 9 and 10 for further developments. 76. John Stuart Mill, “A Few Words on Non-Intervention,” in Collected Works of John Stuart Mill, vol. 21, 109–24, 118–19. 77. See, for example, A.-G. Heffter, Le droit international public de l’Europe, trans. Jules Bergson (Berlin: E.-H. Schroeder, 1857), 14–15; John Westlake, Chapters on International Law, in The Collected Papers of John Westlake on Public International Law, xvii–282 (Cambridge: Cambridge University Press, 1914 [1894]), 140– 48; and T. J. Lawrence, The Principles of International Law, 3rd ed. (Boston: D. C. Heath, 1905), 58. 78. See Chapter 3. 79. On protectorates, see Edwin De Witt Dickinson, The Equality of States in International Law (Cambridge, MA: Harvard University Press, 1920), 240– 47. 80. Treaty of Nov. 5, 1815, 65 CTS 241. 81. Bonfi ls, Manuel, 97–100; and Oppenheim, International Law, vol. 1, 133–37. 82. See Dickinson, Equality of States, 236– 40. 83. Phillimore, Commentaries, vol. 1, 107–8. 84. See John Westlake, International Law, 2nd ed., vol. 1 (Cambridge: Cambridge University Press, 1910), 130–35; and Geddes W. Rutherford, “Spheres of Influence: An Aspect of Semi-sovereignty,” 20 AJIL 300–25 (1926). 85. Declaration of Paris, Apr. 16, 1856, 115 CTS 1. On the “free ships–free goods” principle, see Chapter 5. 86. Geneva Convention for the Amelioration of the Condition of the Wounded, Aug. 22, 1864, 129 CTS 361. 87. Additional Articles Relating to the Condition of the Wounded in War, Oct. 20, 1868, 128 CTS 189. 88. Geneva Convention on Wounded and Sick in Armies in the Field, July 6, 1906, 202 CTS 144. 89. Declaration of St. Petersburg, Dec. 11, 1868, 138 CTS 297. 90. Convention for the Protection of Submarine Cables, Mar. 14, 1884, 163 CTS 391. 91. See Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007), 90–97. 92. Declaration on the Universal Abolition of the Slave Trade, Feb. 8, 1815, 63 CTS 473. 93. General Act Relating to the African Slave Trade, July 2, 1890, 173 CTS 285. On the General Act, see Lyons, Internationalism, 293–95. 94. International Convention on Carriage of Goods by Rail, Oct. 14, 1890, 174 CTS 1.

Notes to Pages 321–325

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95. Protocol Respecting Measures to Be Taken against the Anarchist Movement, Mar. 14, 1904, 195 CTS 118. 96. Convention Prohibiting White Phosphorus in Matches, Sep. 26, 1906, 203 CTS 12; and Convention Prohibiting Night Work for Women, Sep. 26, 1906, 203 CTS 4. 97. Convention on the Circulation of Automobiles, Oct. 11, 1909, 209 CTS 361. 98. Georg Jellinek, L’État moderne et son droit, vol. 1, trans. Georges Fardis (Paris: V. Giard et E. Brière, 1911), 562– 63. 99. See Chapter 5. 100. For a good summation of the arguments for and against codification, see Charles de Visscher, “La codification du droit international,” 6 RdC 325– 455 (1925), 386– 407. 101. Alphonse de Domin-Petrushevecz, Précis d’un code du droit international (Leipzig : F. A. Brockhaus, 1861). 102. Johann Kaspar Bluntschli, Le droit international codifié, trans. M. C. Lardy (Paris: Guillaumin, 1870). 103. Johann Kaspar Bluntschli, Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt (Nördlingen: C. H. Beck, 1868). 104. Pasquale Fiore, Il diritto internazionale codificato e la sua sanzione giuridica (Rome: Unione tipografico-editrice, 1890). 105. On Field’s work, see Mark W. Janis, The American Tradition of International Law: Great Expectations 1789–1914 (Oxford: Oxford University Press, 2004), 118–22. 106. Francis Lieber, Lieber’s Code and the Law of War, ed. Richard Shelly Hartigan (Chicago, IL: Precedent, 1983). 107. Brussels projet on the Laws and Customs of War, Aug. 27, 1874, 1 (supp.) AJIL 96 (1907). 108. For a collection of the resolutions of the Institute up to 1916, see generally James Brown Scott, ed., Resolutions of the Institute of International Law Dealing with the Law of Nations (New York: Oxford University Press, 1916). 109. See James Brown Scott, The Hague Peace Conferences of 1899 and 1907, vol. 1 (Baltimore: Johns Hopkins University Press, 1909), 35–87; Tuchman, Proud Tower, 265–312; and Lyons, Internationalism, 338–54. 110. Tuchman, Proud Tower, 295. 111. International Convention for Adapting the Geneva Convention to Maritime Warfare, July 29, 1899, 187 CTS 443. 112. Hague Convention on the Laws of War on Land, July 29, 1899, 187 CTS 429, preamble. 113. Declaration Prohibiting the Use of Projectiles Diff using Asphyxiating Gases, July 29, 1899, 187 CTS 453; Declaration Prohibiting the Use of Expanding Bullets, July 29, 1899, 187 CTS 459; and Declaration Prohibiting the Discharge of Projectiles from Balloons, July 29, 1899, 187 CTS 456. 114. See Scott, Hague Peace Conferences, vol. 1, 88–751; and Tuchman, Proud Tower, 312–38.

534

Notes to Pages 326–332

115. Scott, Hague Peace Conferences, vol. 1, 169; and Dickinson, Equality of States, 183–84. 116. Scott, Hague Peace Conferences, vol. 1, 170. 117. Walther Schücking, The International Union of the Hague Conferences, trans. Charles G. Fenwick (Oxford: Clarendon Press, 1918 [1912]), 209–22; and Frederick Sherwood Dunn, The Practice and Procedure of International Conferences (Baltimore: Johns Hopkins University Press, 1929), 123–34. 118. Schücking, International Union, 215. 119. Declaration Prohibiting the Discharge of Projectiles from Balloons, Oct. 18, 1907, 205 CTS 403. 120. Hague Convention III on the Opening of Hostilities, Oct. 18, 1907, 205 CTS 263. 121. Hague Convention V on Neutrality in Land Warfare, Oct. 18, 1907, 205 CTS 299; and Hague Convention XIII on Neutrality in Maritime War, Oct. 18, 1907, 205 CTS 395. 122. Hague Convention IX on Naval Bombardment, Oct. 18, 1907, 205 CTS 345. 123. Hague Convention XI on Certain Restrictions on Naval Capture, Oct. 18, 1907, 205 CTS 367. 124. Hague Convention VI on the Status of Enemy Merchant Ships at the Outbreak of Hostilities, Oct. 18, 1907, 205 CTS 305; Hague Convention VII on the Conversion of Merchant Ships into Warships, Oct. 18, 1907, 205 CTS 319; and Hague Convention VIII on Automatic Submarine Mines, Oct. 18, 1907, 205 CTS 331. 125. Declaration of London, Feb. 26, 1909, 208 CTS 338. 126. See Chapters 1 and 2. 127. See Chapter 5. 128. Westlake, International Law, vol. 1, 368. 129. Lyons, Internationalism, 355. 130. For a list of international lawyers active as arbitrators, and the arbitrations in which they participated, see Lachs, Teacher, 183, n. 55. 131. International Convention for the Pacific Settlement of Disputes, July 29, 1899, 187 CTS 410. 132. Quoted in James Brown Scott, “The Proposed Court of Arbitral Justice,” 2 AJIL 772–810 (1908), 780. 133. Frederick W. Holls, The Peace Conference at the Hague and Its Bearings on International Law and Policy (New York: Macmillan, 1900), 285–86. 134. Hague Convention XII on the Establishment of an International Prize Court, Oct. 18, 1907, 205 CTS 381. 135. These were Austria-Hungary, Britain, France, Germany, Italy, Japan, Russia, and the United States. 136. T. E. Holland, “Proposed Changes in Naval Prize Law,” 5 Proceedings of the British Academy 145– 60 (1911–12), 148– 49. 137. Draft Convention for a Court of Arbitral Justice, 2 (supp.) AJIL 29– 43 (1908).

Notes to Pages 333–338

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138. See Manley O. Hudson, The Permanent Court of International Justice, 1920– 1942: A Treatise (New York: Macmillan, 1943), 80–84. 139. See Chapter 7. 140. Convention for the Establishment of a Central American Court of Justice, Dec. 20, 1907, 206 CTS 78. On the court, see Nicolas Politis, La justice internationale (Paris: Hachette, 1924), 139–55. 141. William Spence Robertson, Hispanic-American Relations with the United States (New York: Oxford University Press, 1923), 134. 142. Nicaragua–U.S.A., Bryan-Chamorro Treaty, Aug. 5, 1914, 220 CTS 215. 143. Lars Schoultz, Beneath the United States: A History of U.S. Policy toward Latin America (Cambridge, MA: Harvard University Press, 1998), 224–27. 144. Rudyard Kipling, “Recessional” (1897). 145. For existing writing on the subject, see William Everett Kane, Civil Strife in Latin America: A Legal History of U.S. Involvement (Baltimore, MD: Johns Hopkins University Press, 1971); and Andrew Graham-Yooll, Imperial Skirmishes: War and Gunboat Diplomacy in Latin America (Oxford: Signal, 2002). 146. See Hurewitz, Middle East, vol. 1, 227–31. 147. Ellery C. Stowell, Intervention in International Law (Washington, DC: Byrne, 1921), 40– 41. 148. Great Britain–Greece, Convention for the Settlement of British Claims, July 18, 1850, 104 CTS 159. On the Don Pacifico affair, see Charles de Martens, Causes célèbres du droit des gens, 2nd ed., vol. 5 (Leipzig: F. A. Brockhaus, 1861), 395–531; and Jasper Ridley, Lord Palmerston (London: Constable, 1970), 374–76, 379–89. 149. Carlos Calvo, Le droit international théorique et pratique précédé d’un exposé historique des progrès de la science du droit des gens, 3rd ed., vol. 2 (Paris: PedoneLauriel, 1880–81), 603– 4. 150. France-Mexico, Treaty of Peace and Friendship, Mar. 9, 1839, 88 CTS 345. 151. See Miriam Hood, Gunboat Diplomacy: Great Power Pressure in Venezuela, 1895–1905, 2nd ed. (London: Allen and Unwin, 1983). 152. Schoultz, Beneath the United States, 181. 153. Venezuelan Preferential Claims Case, 9 RIAA 99 (1904). 154. Boxer Indemnity Agreement, Sep. 7, 1901, 190 CTS 61. 155. Elihu Root, “The Basis of Protection to Citizens Residing Abroad,” 4 AJIL 517– 28 (1910). 156. Drago to Martin Garcia Merou, Dec. 29, 1902, [1903] FRUS 1–5; reprinted in 1 (supp) AJIL 1– 6 (1907). 157. See Luis M. Drago, “State Loans in Their Relation to International Policy,” 1 AJIL 692–726 (1907). See also Arthur P. Whitaker, The Western Hemisphere Idea: Its Rise and Decline (Ithaca, NJ: Cornell University Press, 1954), 86–107. 158. Hague Convention II on the Limitation of Force for the Recovery of Contract Debts, Oct. 18, 1907, 205 CTS 250. 159. Ibid., 87–88.

536

Notes to Pages 339–350

160. Woolsey, Introduction, 411. 161. Lassa Oppenheim, “The Science of International Law: Its Task and Method,” 2 AJIL 313–56 (1908), 355. 162. Ibid., 356. 163. On Schücking, see La Pradelle, Maîtres et doctrines, 337– 44. 164. Chickering, Imperial Germany, 177–78. 165. See Schücking, International Union.

Part IV. Between Yesterday and Tomorrow (1914– ) Epigraph: Wolfgang Friedmann, “The Disintegration of European Civilisation and the Future of International Law: Some Observations on the Social Foundations of Law,” 2 MLR 194–214 (1938), 213.

9. Dreams Born and Shattered 1. In support of the lawfulness of the Ruhr occupation was George A. Finch, “The Legality of the Occupation of the Ruhr Valley,” 17 AJIL 724–33 (1923). Opposing the lawfulness were Arnold D. McNair, “The Legality of the Occupation of the Ruhr,” 5 BYBIL 17–37 (1924); and Ernest J. Schuster, “The Question as to the Legality of the Ruhr Occupation,” 18 AJIL 407–18 (1924). 2. The S.S. Wimbledon, PCIJ, ser. A, no. 1. 3. Franz von Liszt, “The Reconstruction of International Law,” 64 U. Penn. L. Rev. 765–73 (1916), 767. 4. See A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed. (Paris: Éditions internationales, 1950), 371– 403. 5. See Chapter 7. 6. See Michael Streeter, Epitácio Pessôa (London: Haus, 2010). 7. They were Anzilotti, Bustamante, de Visscher, Hudson, Hurst, Koo, Pessôa, Rolin-Jaequemyns, Schücking, and Winiarski. 8. Report of the Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties, Mar. 29, 1919, 14 AJIL 95–154 (1920). 9. Ibid., 127–51. 10. Treaty of Versailles, June 26, 1919, 225 CTS 188, art. 231. 11. Ibid., art. 227. 12. Robert Lansing, “Some Legal Questions of the Peace Conference,” 13 AJIL 631– 50 (1919), 647– 48. 13. On the refusal of the Netherlands to extradite William II, see James Brown Scott, “The Trial of the Kaiser,” in Edward Mandell House and Charles Seymour, eds., What Really Happened at Paris: The Story of the Peace Conference, 1918–1919, 231–58 (New York: Charles Scribner’s Sons, 1921), 240– 45.

Notes to Pages 350–355

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14. Samantha Power, “A Problem from Hell”: America and the Age of Genocide (London: Flamingo, 2002), 1–14. On the Armenian massacres, see Taner Akçam, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, trans. Paul Bessemer (New York: Metropolitan, 2006). 15. Treaty of Sèvres, Aug. 10, 1920, in Wilhelm G. Grewe, ed., Fontes Historiae Juris Gentium: Sources Relating to the History of the Law of Nations, vol. 3 (Berlin: Walter de Gruyter, 1995), 711. 16. See Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, NJ: Princeton University Press, 2000), 106– 46. 17. Treaty of Lausanne, July 24, 1923, 28 LNTS 115. 18. Charles G. Fenwick, “The Role of International Orga nization in International Law,” 35 AJIL 524–27 (1941), 525. 19. League of Nations Covenant, art. 10. 20. Ibid., art. 16. 21. Ibid., art. 18. See Dionisio Anzilotti, Cours de droit international, vol. 1, trans. Gilbert Gidel (Paris: Sirey, 1929), 374–92. 22. See, for example, Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London: Longmans, Green, 1927), 172–75. 23. Bolivia-Chile, Treaty of Peace, Friendship and Commerce, Oct. 20, 1904, 196 CTS 403. See Jean Ray, Commentaire du Pacte de la Société des Nations selon la politique et la jurisprudence des organes de la Société (Paris: Sirey, 1930), 562– 63. 24. Ray, Commentaire, 567. 25. Alfred Zimmern, The League of Nations and the Rule of Law 1918–1935 (London: Macmillan, 1936), 259. 26. Ibid., 257– 60; David Hunter Miller, The Drafting of the Covenant, vol. 1 (New York: G. P. Putnam’s Sons, 1928), 269; and vol. 2, 323–25. 27. Miller, Drafting of the Covenant, vol. 1, 461. 28. Ibid., 464– 65. 29. Ibid., vol. 2, 702– 4. 30. See Memo Miller to Wilson, Apr. 4, 1919, in ibid., vol. 1 413; and note by the British delegation, Apr. 7, 1919, in ibid., 416. 31. For the preparatory work, see generally Advisory Committee of Jurist, Procèsverbaux of the Proceedings of the Committee June 16th–July 24th 1920 (The Hague: Van Langenhuysen Brothers, 1920). See also Manley O. Hudson, The Permanent Court of International Justice, 1920–1942: A Treatise (New York: Macmillan, 1943), 93–129. 32. See Chapter 8. 33. Ole Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (Cambridge: Cambridge University Press, 2005), 140. 34. Ibid., 136.

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Notes to Pages 356–358

35. 1921 LN Off.J. 313. 36. Ibid., 807–9. 37. Opinion of Judge McNair, Anglo-Iranian Oil Case (Great Britain v. Iran), 1952 ICJ Rep. 93, 118. 38. Opinion of Judge Oda, in Military and Paramilitary Activities (Nicaragua v. U.S.A.) (Jurisdiction), 1984 ICJ Rep. 392, 501. 39. See Polish Postal Ser vice in Danzig, PCIJ, ser. B, No. 11 (1925); Jurisdiction of Courts of Danzig, PCIJ, ser. B, No. 15 (1928); Free City of Danzig and the ILO, PCIJ, ser. B, No. 18 (1930); Access to, or Anchorage in, the Port of Danzig, of Polish War Vessels, PCIJ, ser. A/B, No. 43 (1931); Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, PCIJ, ser. A/B, No. 44 (1932); and Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, PCIJ., ser. A/B, No. 65 (1935). 40. Austria-Germany, Customs Union Protocol, Mar. 19, 1931, in Grewe, ed., Fontes, vol. 3, 861. 41. Protocol on the Restoration of Austria, Oct. 4, 1922, 12 LNTS 405. 42. Customs Union Case (adv. Op.), PCIJ, ser. A/B, no. 41 43. See G. M. Gathorne-Hardy, A Short History of International Affairs 1920 to 1939, 3rd ed. (London: Oxford University Press, 1942), 338–39; and Michael Dunne, The United States and the World Court, 1920–1935 (London: Pinter, 1988), 198–209. 44. See Treaty of Versailles, arts. 297, 304. On the functioning of these tribunals, including issues of substantive law determined, see generally Rudolf Blühdorn, “Le fonctionnement et la jurisprudence des tribunaux aribtreaux mixtes créés par les traités de Paris,” 41 RdC 137–244 (1932). 45. Germany-U.S.A., Claims Agreement, Aug. 10, 1922, 25 LNTS 357. 46. For reports of the most prominent cases, see generally 7 RIAA 21–391 and 8 RIAA 3– 468. 47. Mexico-U.S.A., General Claims Convention, Sep. 8, 1923, 4 RIAA 11; and Mexico-U.S.A., Special Claims Convention, Sep. 10, 1923, 4 RIAA 779. 48. Mexico-U.S.A., Protocol on Claims, Apr. 24, 1934, 149 LNTS 49. On the experience of the special claims commission, see A. H. Feller, The Mexican Claims Commissions 1923–1934: A Study in the Law and Procedure of International Tribunals (New York: Macmillan, 1935), 63– 69; and “Special Claims Commission,” 4 RIAA 773–75. For the two decisions made by the commission, see Santa Isabel Claims (U.S.A. v. Mexico), 4 RIAA 783 (1926); and Russell Claim (U.S.A. v. Mexico), 4 RIAA 805 (1931). 49. Mexico-U.S.A., Convention Relating to Certain Unsettled Claims, Nov. 19, 1941, 125 UNTS 287. On the experience of the general commission, see Feller, Mexican Claims Commissions, 56– 63; and “General Claims Commission,” 4 RIAA 3– 6. 50. France-Mexico, Convention of Sep. 25, 1924, 79 LNTS 417; Germany-Mexico, Convention of Mar. 16, 1925, 52 LNTS 93; and Great Britain–Mexico, Claims Convention, Nov. 19, 1926, 85 LNTS 51; Italy-Mexico, Claims Convention, Jan. 13,

Notes to Pages 358–360

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1927, in Feller, Mexican Claims Commissions, 502–10; Mexico-Spain, Claims Convention, Nov. 25, 1925, in ibid., 521–25. On the Belgium-Mexico Convention, see ibid., 28, 43. 51. Panama-U.S.A., Convention of July 28, 1926, 138 LNTS 119. 52. Siam-U.S.A., Treaty of Amity and Commerce, Dec. 16, 1920, Protocol Concerning Jurisdiction, 6 LNTS 292. 53. Japan-Siam, Treaty of Commerce and Navigation, Mar. 10, 1924, 31 LNTS 188, Protocol. 54. See Francis Bowes Sayre, “The Passing of Extraterritoriality in Siam,” 22 AJIL 70–88 (1928). 55. France-Turkey, Capitulations, May 28, 1740, 36 CTS 41. 56. Treaty of Sèvres, Aug. 10, 1920, in Carnegie Endowment for International Peace, Treaties of Peace 1919–1923, vol. 2 (New York: Carnegie Endowment for International Peace, 1924), 787, art. 261. 57. Treaty of Lausanne, July 24, 1923, 28 LNTS 11, art. 28. 58. Montreux Convention, May 8, 1937, 182 LNTS 37. 59. Wesley R. Fishel, The End of Extraterritoriality in China (Berkeley, CA: University of California Press, 1952), 109–26. 60. Circular to Foreign Legations at Tehran, May 10, 1927, in John W. WheelerBennett, ed., Documents on Foreign Affairs 1928 (London: Oxford University Press, 1929), 200. 61. Belgium-China, Preliminary Treaty of Amity and Commerce, Nov. 22, 1928, 87 LNTS 287, art. 2. 62. Fishel, End of Extraterritoriality, 109–29, 145– 49; and Thomas F. Millard, The End of Extraterritoriality in China (Shanghai: A.B.C. Press, 1931), 78–102. 63. Treaty of Berlin, July 13, 1878, 153 CTS 171, art. 44. 64. On minority protection, see André Mandelstam, “La protection des minorités,” 1 RdC 363–519 (1923). 65. See Treaty of St.-Germain-en-Laye, Sep. 10, 1919, 226 CTS 8, arts. 62– 69; Treaty of Neuilly, Nov,. 27, 1919, 226 CTS 332, arts. 49–57; Treaty of Trianon, June 4, 1920, Carnegie Endowment for International Peace, Treaties of Peace, vol. 1, 457, arts. 54– 60; and Treaty of Lausanne, July 24, 1923, 28 LNTS 11, arts. 37– 44. 66. Allied Powers–Poland, Minorities Treaty, June 28, 1919, 225 CTS 412; Treaty of St.-Germain-en-Laye with Czechoslovak ia, Sep. 10, 1919, 226 CTS 170, arts. 7–14; Treaty of Peace Regarding Yugoslavia, Sep. 10, 1919, 226 CTS 182, arts. 7–11; Allied Powers–Romania, Minorities Treaty, Dec. 9, 1919, 226 CTS 447; and Greece–League of Nations, Treaty on Protection of Minorities, Aug. 10, 1920, 28 LNTS 244. 67. Greece-Turkey, Convention Concerning the Exchange of Populations, Jan. 30, 1923, 32 LNTS 75. 68. Germany-Poland, Convention on Upper Silesia, May 15, 1922, in Karl Strupp, ed., Documents pour server à l’histoire du droit des gens, 2nd ed., vol. 4 (Berlin: H. Sack, 1923), 719, arts. 64–158.

540

Notes to Pages 360–363

69. German Settlers in Poland (Germany v. Poland), PCIJ, ser. B, No. 6 (1923); and Acquisition of Polish Nationality (Germany v. Poland), PCIJ, ser. B, No. 7 (1923). 70. See Certain German Interests in Polish Upper Silesia (Germany v. Poland) (Merits), PCIJ ser. A, No. 7 (1926); Rights of Minorities in Upper Silesia (Minority Schools) (Germany v. Poland), PCIJ, ser. A, No. 15 (1928); and Access to German Minority Schools in Upper Silesia (Germany v. Poland), PCIJ, ser. A/B, No. 40 (1931). 71. Minority Schools in Albania (adv. op.), PCIJ, ser. A/B, No. 64 (1933). 72. Convention on Aerial Navigation, Oct. 13, 1919, 11 LNTS 173. 73. Hague Rules of Aerial Warfare, in Adam Roberts and Richard Guelff, eds., Documents on the Laws of War, 3rd ed. (Oxford: Oxford University Press, 2000), 139–53. 74. Geneva Protocol for the Prohibition of Asphyxiating Gases, June 17, 1925, 94 LNTS 65. 75. See, for example, the declarations of France, Belgium, Romania, Britain, India, Canada, the Soviet Union, South Africa, Australia, and New Zealand, 94 LNTS 67–71. 76. Geneva Convention on the Wounded and Sick in the Field, July 27, 1929, 118 LNTS 303; and Geneva Convention on Prisoners of War, July 27, 1929, 118 LNTS 343. On the earlier Geneva Conventions, see Chapter 8. 77. London Naval Protocol, Nov. 6, 1936, 173 LNTS 353. 78. Pact of Paris, Aug. 27, 1928, 94 LNTS 57. 79. James T. Shotwell, War as an Instrument of National Policy and Its Renunciation in the Pact of Paris (London: Constable, 1929), 203–13. 80. See Chapter 10, on the Nuremberg Trials. 81. Advisory Committee of Jurists, Procès-verbaux, Resolution 2, 748. On Descamps, see La Pradelle, Maîtres et doctrines, 225–35. 82. Convention for the Creation of an International Criminal Court, Nov. 16, 1937, in UN Secretary-general, Historical Survey of the Question of International Criminal Jurisdiction, UN Doc. A/CN.4/7/Rev.1 (1949), 88–97. See also Hudson, Permanent Court, 85–89. 83. See Walther Schücking, Der Kodifikationsversuch betreffend die Rechtsverhälnisse des Küstenmeeres und die Gründe seines Scheiterns (Breslau: Ferdinand Hirt, 1931). For support for this position, see Philip Marshall Brown, “International Law Reparations,” 28 AJIL 330–34 (1934). 84. Elihu Root, “The Codification of International Law,” 19 AJIL 675–84 (1925). See also, to the same effect, Pittman Potter’s review of Schücking, Kodifikationsversuch, in 26 AJIL 446– 47 (1932). 85. For the full records of the Hague Conference, see generally Shabtai Rosenne, ed., League of Nations Conference for the Codification of International Law, 4 vols. (Dobbs Ferry, NY: Oceana, 1975). 86. Hague Convention on the Conflict of Nationality Laws, Apr. 12, 1930, 179 LNTS 89.

Notes to Pages 363–371

541

87. Frederick Sherwood Dunn, The Protection of Nationals: A Study in the Application of International Law (Baltimore, MD: Johns Hopkins University Press, 1932), 61– 66. 88. Frederic Kirgis, The American Society of International Law’s First Century 1906–2006 (Leiden: Martinus Nijhoff, 2006), 93–97. For the texts of the conventions, see John P. Grant and J. Craig Barker, eds., The Harvard Research in International Law: Contemporary Analysis and Appraisal (Buffalo, NY: William S. Hein, 2007), 433–540. 89. See Brown, “Reparations,” 331. 90. 38 IDI Annuaire (1934), 137. 91. Quoted in 21 AJIL 645 (1927). 92. Karl Strupp, “Règles générales du droit de la paix,” 47 RdC 259–591 (1934), 298. 93. Ibid., 298–99. (Emphasis in the original.) 94. The S.S. Lotus (France v. Turkey), PCIJ, ser. A, No. 10. 95. See Bruno Simma and Andreas L. Paulus, “The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View,” 93 AJIL 302–16 (1999), 304. 96. See Josef Kunz, “Natural-Law Thinking in the Modern Science of International Law,” 55 AJIL 951–58 (1961), 956. 97. See Clemens Jabloner, “Kelsen and His Circle: The Viennese Years,” 9 EJIL 368– 85 (1998), 369. 98. Hans Kelsen, Principles of International Law, 2nd ed., rev. and ed. Robert W. Tucker (New York: Holt, Rinehart and Winston, 1966), 558. 99. Ibid., 441. 100. Ibid., 446. 101. Anzilotti, Cours, vol. 1, 43– 45, 67– 69, 87–88, 161– 62. See also Lauterpacht, Private Law Sources, 58–59; and Giorgio Gaja, “Positivism and Dualism in Dionisio Anzilotti,” 3 EJIL 123–38 (1992), 127–29. 102. See Chapter 6. 103. Kelsen, Principles, 438– 40. 104. Ibid., 180. 105. Ibid., 247. 106. Ibid., 571. 107. Ibid., 569. 108. Hans Kelsen, Die Staatslehre des Dante Alighieri (Vienna: F. Deuticke, 1905). On the monist theory, see Hans Kelsen, General Theory of Law and the State, trans. Anders Wedberg (New York: Russell and Russell, 1961), 363–88. 109. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 230. 110. On the core features of liberalism in the area of international affairs, see AnneMarie Slaughter, “International Law and International Relations,” 285 RdC 9–249 (2000), 39– 43.

542

Notes to Pages 371–377

111. Torbjørn Knutsen, A History of International Relations Theory, 2nd ed. (Manchester: Manchester University Press, 1997), 193; Paul Guggenheim, “International Relations and Public International Law,” in Paul Guggenheim and Pitman B. Potter, The Science of International Law, International Relations, and Organization, 7–19 (Geneva: Geneva Research Centre, 1940), 7–8; and Chris Brown and Kirsten Ainley, Understanding International Relations, 4th ed. (Basingstoke: Palgrave Macmillan, 2009), 19–23. 112. Christian Reus-Smit, “The Strange Death of Liberal International Theory,” 12 EJIL 573–93 (2001), 577. On the early years of the discipline, see Knutsen, History, 211–16. 113. See generally Nicolas Politis, La neutralité et la paix (Paris: Hachette, 1935). 114. See Lauterpacht, Private Law Sources, 51–71. 115. Hersch Lauterpacht, “The Grotian Tradition in International Law,” 23 BYBIL 1–53 (1946), 4–5. 116. Hersch Lauterpacht, “Règles générales du droit de la paix,” 62 RdC 95– 422 (1937), 104. 117. Ibid., 126–28. 118. See Chapter 7. 119. See La Pradelle, Maîtres et doctrines, 423– 40. 120. Dietrich Schindler, “Contribution à l’étude des facteurs sociologiques et psychologiques du droit international,” 46 RdC 229–326 (1933). 121. Wolfgang Friedmann, “The Disintegration of European Civilisation and the Future of International Law: Some Observations on the Social Foundations of Law,” 2 MLR 194–214 (1938), 213. 122. Nicolas Politis, The New Aspects of International Law (Washington, DC: Carnegie Endowment for International Peace, 1928), 15. 123. Ibid., 4. 124. Ibid., 8–12. 125. Ibid., 11–14. 126. Georges Scelle, Précis de droit des gens: Principes et systématique, vol. 1 (Paris: Sirey, 1932), 4. 127. Ibid., 5. 128. Ibid., 35–37. 129. Ibid., 37– 42. 130. Ibid., 55–57. 131. See Antonio Cassese, “Remarks on Scelle’s Theory of ‘Role Splitting’ (dédoublement fonctionnel) in International Law,” 1 EJIL 210–31 (1990). 132. For Kelsen’s support, in substance, of the idea of dédoublement fonctionnel, see Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer reinen Rechtslehre (Tübingen: J. C. B. Mohr, 1920), 144– 49. 133. Georges Scelle, “Règles générales du droit de la paix,” 46 RdC 327–703 (1933), 690. 134. Scelle, Précis, vol. 2, 547. 135. Ibid.

Notes to Pages 377–381

543

136. 28 AJIL 411 (1934). 137. See Chapter 11. 138. Martin Griffiths, Fifty Key Thinkers in International Relations (London: Routledge, 1999), 191–94. See also David Mitrany, The Functional Theory of Politics (London: Robertson, 1975). 139. Pitman B. Potter, An Introduction to the Study of International Organization (New York: Century, 1922). 140. Pitman B. Potter, “Bases and Effectiveness of International Law 1968,” 63 AJIL 270–72 (1969), 271. 141. Pitman B. Potter, “Obstacles and Alternatives to International Law,” 53 AJIL 647–51 (1959), 649–50. 142. Harold Lasswell, “The Problem of World-unity: In Quest of a Myth,” 44 Int’l J. Ethics 68–93 (1933), 68. 143. Ibid., 69. 144. Ibid., 93. 145. See Chapter 10. 146. See La Pradelle, Maîtres et doctrines, 359–70. 147. Louis Le Fur, “La théorie du droit naturel depuis le XVIIe siècle et la doctrine moderne,” 18 RdC 259– 442 (1927). 148. On Wolff, see Chapter 5. On Aquinas, see Chapter 2. 149. Le Fur, “Théorie,” 385. 150. On Verdross, see Ernest Engelberg, “Les bases idéologiques de la nouvelle conception de droit international de M. Alfred von Verdross,” 46 RGDIP 37–52 (1939). 151. Alfred Verdross, “Le fondement du droit international,” 16 RdC 247–323 (1927), 283–86. (Emphasis in the original.) 152. On this phase of Kaufmann’s career, see Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge: Cambridge University Press, 2001), 249– 61. 153. See Chapter 6. 154. See Erich Kaufmann, “Règles générales du droit de la paix,” 54 RdC 309– 620 (1935), 574–88. 155. On Kaufmann’s change of outlook, see Manfred Lachs, The Teacher in International Law (Teachings and Teaching) (The Hague: Martinus Nijhoff, 1982), 127–28; and Stephen Cloyd, “Erich Kaufmann,” in Arthur D. Jacobson and Bernhard Schlink, eds., Weimar: A Jurisprudence of Crisis, 189–94 (Berkeley, CA: University of California Press, 2000), 191–92. 156. Kaufmann, “Règles générales,” 314. 157. Ibid., 319. 158. Ibid., 398. 159. Ibid., 491–92. 160. Ibid., 314. 161. Ibid., 319.

544

Notes to Pages 381–385

162. For criticism of Kaufmann’s ideas from the standpoint of more traditional natural law, see Lauterpacht, “Règles générales,” 123–26. 163. See, for example, James Brown Scott, The Spanish Origin of International Law: Francisco de Vitoria and His Law of Nations (Oxford: Clarendon Press, 1934); and James Brown Scott, “Francisco Suárez: His Philosophy of Law and of Sanctions,” 22 Georgetown L. J. 405–518 (1934). 164. J. L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 1st ed. (Oxford: Clarendon Press, 1928), 9. 165. Ibid., 16. 166. Lauterpacht, “Règles générales,” 164– 66. 167. Quoted in V. I. Lenin, On the Foreign Policy of the Soviet State (Moscow: Progress, 1964), 11–14. 168. Ibid., 17. 169. See ibid., 156–76; Mintauts Chakste, “Soviet Concepts of the State, International Law, and Sovereignty,” 43 AJIL 21–36 (1949), 23–30; Percy E. Corbett, Law in Diplomacy (Princeton, NJ: Princeton University Press, 1959), 91–94. and Zofia Maclure, “Soviet International Legal Theory—Past and Present,” 5 Fletcher Forum 49–73 (1981), 49–54. 170. T. A. Taracouzio, “The Effect of Applied Communism on the Principles of International Law,” 28 ASIL Procs. 105–20 (1934), 107. 171. Eugene A. Korovin, “Soviet Treaties and International Law,” 22 AJIL 753– 63 (1928), 753. 172. Robert W. Slusser and Jan F. Triska, “Professor Krylov and Soviet Treaties,” 51 AJIL 766–70 (1957), 702. On the tie between socialist legal thought and the common will approach, particularly that of Triepel, see Grigory Tunkin, “Politics, Law and Force in the Interstate System,” 219 RdC 227–395 (1989), 262– 63. 173. Ibid., 702. 174. Ivo Lapenna, Les conceptions soviétiques de droit international public (Paris: A. Pedone, 1954), 217–18. 175. Hans Kelsen, The Communist Theory of Law (London: Stevens and Sons, 1955) 156–57. 176. Lapenna, Conceptions soviétiques, 71. 177. See Kelsen, Communist Theory, 152–56; John N. Hazard, “Cleansing Soviet International Law of Anti-Marxist Theories,” 32 AJIL 244–52 (1938); Corbett, Law in Diplomacy, 94–98; and Lapenna, Conceptions soviétiques, 74–78, 94–103. 178. E. B. Pashukanis, “International Law,” in W. E. Butler, ed., Russian Legal Theory, 541– 48 (Aldershot: Dartmouth, 1996 [1926–27]). 179. Ibid., 550. 180. Ibid., 545– 46. 181. Slusser and Triska, “Professor Krylov,” 704– 06, 723. 182. Hazard, “Cleansing,” 248. 183. Lapenna, Conceptions soviétiques, 92–94, 130–32.

Notes to Pages 385–391

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184. See ibid., 82–92. 185. Ibid., 32– 44. 186. See, to this effect, Friedmann, “Disintegration,” 196–97. 187. Ugo Spirito, “Corporativism as Absolute Liberalism and Absolute Socialism,” from 6 New Studies in Law, Economics, and Politics 285–98 (1932); excerpted in Roger Griffi n, ed., Fascism (Oxford: Oxford University Press, 1995), 68– 69. 188. Lawrence Preuss, “National Socialist Conceptions of International Law,” 29 Am. Pol. Sci. Rev. 594– 609 (1935), 603–5. 189. Ibid., 605–7. 190. Martyn Housden, Helmut Nicolai and Nazi Ideology (London: Macmillan, 1992), 95. 191. Detlev F. Vagts, “International Law in the Third Reich,” 84 AJIL 661–704 (1990), 677. 192. Jacques Fournier, La conception nationale-socialiste du droit des gens (Paris: A. Pedone, 1939), 70. 193. Michael Stolleis, A History of Public Law in Germany 1914–1945, trans. Thomas Dunlap (Oxford: Oxford University Press, 2004), 428. 194. Fournier, Conception, 190–94. 195. See Aristotle A. Kallis, Fascist Ideology: Territory and Expansionism in Italy and Germany, 1922–1945 (London: Routledge, 2000), 48–56. 196. Michael Stolleis, “International Law under German National Socialism: Some Contributions to the History of Jurisprudence 1933–1945,” in Michael Stolleis and Masaharu Yanagihara, eds., East Asian and European Perspectives on International Law, 203–13 (Baden-Baden: Nomos, 2004), 208. 197. Vagts, “International Law,” 682. 198. Stolleis, History, 422. 199. Grewe, ed., Fontes, vol. 3, 936–38. 200. 332 Hansard (H.C.) (ser. 5), Feb. 22, 1938, 227. See also S. Engel, League Reform: An Analysis of Official Proposals and Discussions, 1936–1939 (Geneva: Geneva Research Centre, 1940), 154–59. 201. Nils Orvik, The Decline of Neutrality 1914–1941 (Oslo: Johan Grundt Tanum, 1953), 11. 202. See 44 RGDIP 621 (1937); and David Owen Kieft, Belgium’s Return to Neutrality: An Essay in the Frustrations of Small Power Diplomacy (Oxford: Clarendon Press, 1972). 203. See, for example, George W. Keeton and Georg Schwarzenberger, Making International Law Work, 2nd ed. (London: Stevens and Sons, 1946), 88–92. 204. John Bassett Moore, “An Appeal to Reason,” 11 Foreign Affairs 547–88 (1933). 205. Edwin M. Borchard, “Neutrality and Unneutrality,” 32 AJIL 778–82 (1938), 780. 206. Edwin M. Borchard, “Neutrality and Sanctions,” in Francis James Brown, Charles Hodges and Joseph Slabey, eds., Contemporary World Politics: An Introduction

546

Notes to Pages 391–397

to the Problems of International Relations, 487–502 (New York: John Wiley and Sons, 1939), 491. 207. Ibid., 500. 208. Edwin M. Borchard, “The ‘Enforcement’ of Peace by ‘Sanctions’,” 27 AJIL 518– 25 (1933). 209. E. H. Carr, Twenty Years’ Crisis 1919–1939: An Introduction to the Study of International Relations, 2nd ed. (London: Macmillan, 1946), 161. 210. Georg Schwarzenberger, Power Politics: An Introduction to the Study of International Relations and Post-War Planning (London: Jonathan Cape, 1941), 315. 211. See 24 ASIL Procs. 95–114 (1930). 212. Engel, League Reform, 156–57. 213. 1932 LN Off. J. (pt. 1) 384; and Assembly Res., Mar. 11, 1932, LN Off. J., Special Supp. No. 101, 87–88. 214. Montevideo Convention, Dec. 26, 1933, 165 LNTS 19, art. 11. 215. ILA, Report of the 38th Conference (1934), 66– 68. 216. Hersch Lauterpacht, “The Pact of Paris and the Budapest Articles of Interpretation,” 20 Grotius Soc. Trans. 178–204 (1934). 217. Robert H. Jackson, “Address to the Inter-American Bar Association,” 35 AJIL 348–59 (1941). 218. Ibid., 350. 219. Quincy Wright, “The Lend-Lease Bill and International Law,” 35 AJIL 305–14 (1941). 220. Edwin M. Borchard, “War, Neutrality and Non-Belligerency,” 35 AJIL 618–25 (1941).

10. Building Anew 1. Les Daniels, DC Comics: A Celebration of the World’s Favorite Comic Book Heroes (New York: Billboard, 1995), 65. 2. Thomas Hughes, “The Twilight of Internationalism,” 61 Foreign Policy 25– 48 (1985–86), 37. 3. Peter H. Maguire, Law and War: International Law and American History, 2nd ed. (New York: Columbia University Press, 2010), 108–9. On the opposition of Lansing and Scott to the idea at the Paris Peace Conference, see Chapter 9. 4. Charter of the International Military Tribunal, Aug. 8, 1945, 82 UNTS 279. 5. See Chapter 9. 6. Bradley F. Smith, Reaching Judgment at Nuremberg (London: André Deutsch, 1977), 58–59; and Ann Tusa and John Tusa, The Nuremberg Trial (London: Macmillan, 1983), 87. 7. See A. N. Trainin, Hitlerite Responsibility under Criminal Law, ed. A. Y. Vishinski; trans. Andrew Rothstein (London: Hutchinson, 1945), 42– 46.

Notes to Pages 398–404

547

8. Stephanie Steinle, “Georg Schwarzenberger (1908–1991),” in Jack Beatson and Reinhard Zimmermann, eds., Jurists Uprooted: German- Speaking Emigré Lawyers in Twentieth- Century Britain, 663– 80 (Oxford: Oxford University Press, 2004), 672. 9. Pact of Paris, Aug. 27, 1928, 94 LNTS 57. See also Chapter 9. 10. In re Goering (Int’l Military Trib.), 13 ILR 203 (1946), 208–9. 11. Ibid., 207–9. 12. Leo Gross, “The Criminality of Aggressive War,” 41 Am. Pol. Sci. Rev. 205–25 (1947), 221. 13. Hans Kelsen, “Will the Judgment in the Nuremberg Trial Constitute Precedent in International Law?” 1 ICLQ 153–72 (1947), 165. 14. Quincy Wright, “The Law of the Nuremberg Trial,” 41 AJIL 38–72 (1947), 47. 15. Special Proclamation—Establishment of an International Military Tribunal for the Far East, Jan. 19, 1946, in Neil Boyster and Robert Cryer, eds., Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgments (Oxford: Oxford University Press, 2008), 5. For the text of the tribunal’s charter, see Charter for the International Military Tribunal for the Far East, Apr. 26, 1946, in ibid., 7. 16. Dissent of Judge Bernard, in ibid., 675–76. 17. See generally In re Hirota (Int’l Military Tribunal for the Far East), 15 ILR 356 (1948). 18. UN Charter, art. 2(4). 19. Legality of Nuclear Weapons (adv. op.), 1996 ICJ Rep. 226, para. 46. 20. UN Charter, art. 51. 21. Ibid., art. 102. 22. Ibid., art. 13(1). 23. Genocide Convention, Dec. 9, 1948, 78 UNTS 277. 24. G.A. Res. 217 A (III) (1948). 25. 2 [1954] YB ILC, UN Doc. A/CN.4/SER.A/1954/Add.1, 151–52. 26. Geneva Convention I on Wounded and Sick on Land, Aug. 12, 1949, 75 UNTS 31; Geneva Convention II on Wounded and Sick at Sea, Aug. 12, 1949, 75 UNTS 85; Geneva Convention III on Prisoners of War, Aug. 12, 1949, 75 UNTS 135; and Geneva Convention IV on Civilians, Aug. 12, 1949, 75 UNTS 287. 27. Convention on the Status of Refugees, July 28, 1951, 189 UNTS 137. 28. G.A. Res. 897 (IX) (1954). See also G.A. Res. 1186 (XII) (1957). 29. G.A. Res. 3314 (XXIX) (1974). 30. On the revival of the project in the 1990s, see Chapter 11. 31. Hersch Lauterpacht, “The International Protection of Human Rights,” 70 RdC 1–108 (1947), 100– 03. 32. Proceedings of the House of Delegates, 35 ABA J. 957– 60 (1949). 33. Marjorie M. Whiteman, ed., Digest of International Law, vol. 13 (Washington, DC: Government Printing Office, 1968), 668– 69.

548

Notes to Pages 404–410

34. See generally Tae-ho Yoo, The Korean War and the United Nations: A Legal and Diplomatic Historical Study (Louvain: Institut des Sciences Politiques, 1964). See also William Stueck, The Korean War: An International History (Princeton, NJ: Princeton University Press, 1995), which contains much information on the UN’s role in the struggle. 35. G.A. Res. 267 (III) (1948). See also a report by a committee of the General Assembly on the problem: U.N. Doc. A/578 (1949). 36. Letter Korovin to American Society of International Law, July 24, 1951, 45 AJIL 780 (1951). 37. Conditions of Admission (adv. op.), 1948 ICJ Rep. 57. 38. Competence of the [General] Assembly for Admission (adv. op.), 1950 ICJ Rep. 4. 39. See Treaty of Peace with Bulgaria, Feb. 10, 1947, 41 UNTS 21, art. 2; Treaty of Peace with Hungary, Feb. 10, 1947, 41 UNTS 135, art. 2; and Treaty of Peace with Romania, Feb. 10, 1947, 42 UNTS 3, art. 3. 40. Interpretation of Peace Treaties (Second Phase) (adv. op.), 1950 ICJ Rep. 221. 41. G.A. Res. 385 (V) (1950). 42. UN Charter, art. 53(1). 43. Evan Luard, A History of the United Nations, vol. 2 (New York: Macmillan, 1989), 387–91. 44. Sergei Kovalev, “Sovereignty and International Duties of Socialist Countries,” Pravda, Sep. 25, 1968; translated and reprinted in 7 ILM 1323–25 (1968). See also Robert A. Jones, The Soviet Concept of “Limited Sovereignty” from Lenin to Gorbachev: The Brezhnev Doctrine (Basingstoke: Macmillan, 1990), 153–73. 45. John N. Hazard, “Renewed Emphasis upon a Socialist International Law,” 65 AJIL 142– 48 (1971), 143. 46. See Chapter 9. 47. Hazard, “Renewed Emphasis,” 144– 46. 48. Kovalev, “Sovereignty.” 49. On the solidarist aspects of the Brezhnev Doctrine, see Jones, Soviet Concept of “Limited Sovereignty,” 125–34. 50. George P. Shultz, Turmoil and Triumph: My Years as Secretary of State (New York.: Charles Scribner’s Sons, 1993), 1129. 51. Jeane J. Kirkpatrick and Allan Gerson, “The Reagan Doctrine, Human Rights, and International Law,” in Louis Henkin et al., Right v. Might: International Law and the Use of Force (New York: Council on Foreign Relations, 1991), 20. 52. See Chapter 7. 53. Kirkpatrick and Gerson, “Reagan Doctrine,” 21. 54. Military and Paramilitary Activities (Nicaragua v. U.S.A.) (Merits), 1986 ICJ Rep. 14, paras. 206–9. 55. Ibid., para. 206. 56. Ibid., para. 207.

Notes to Pages 410–413

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57. Ibid., para. 209. 58. Dissenting op. by Judge Oda, Military and Paramilitary Activities (Nicaragua v. U.S.A.) (Jurisdiction), 1984 I.C.J. Rep. 392, 493. On the Optional Clause to the I.C.J. Statute, see Chapter 9. 59. See Corfu Channel Case (Merits) (Great Britain v. Albania), 1949 ICJ Rep. 4. 60. International Status of South-West Africa (adv. op.), 1950 ICJ Rep. 128. 61. Certain Expenses of the UN (adv. op.), 1962 ICJ Rep. 151. 62. Namibia Opinion (adv. op.), 1971 ICJ Rep. 16. 63. Statement of under-secretary of state for Foreign and Commonwealth Affairs, Oct. 19, 1971, 832 (ser. 5) Hansard (H.C.) 678–83. 64. See, for example, John King Gamble Jr. and Dana D. Fischer, The International Court of Justice: An Analysis of a Failure (Lexington, MA: D. C. Heath, 1976). 65. Richard N. Gardner, Sterling-Dollar Diplomacy in Current Perspective: The Origins and Prospect of Our International Economic Order, 3rd ed. (New York: Columbia University Press, 1980), 369–78. 66. General Agreement on Tariffs and Trade (GATT), Oct. 30, 1947, 55 UNTS 187. 67. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171; and International Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966, 993 UNTS 3. 68. Optional Protocol to Civil and Political Covenant, Dec. 16, 1966, 999 UNTS 302. 69. John N. Hazard, “Legal Research on ‘Peaceful Co-existence’,” 51 AJIL 63–71 (1957), 66. 70. G.A. Res. 2625 (XXV) (1970). 71. See, for example, Military and Paramilitary Activities (Nicaragua v. U.S.A.), para. 188; Consequences of the Wall (adv. op.) 2004 ICJ Rep. 136, para. 87; Armed Activities in the Congo (Congo v. Uganda), 2005 ICJ Rep. 168, para. 162; and Unilateral Declaration of Independence of Kosovo (adv. op.), 2010 ICJ Rep. 403, para. 80. 72. Antarctic Treaty, Dec. 1, 1959, 402 UNTS 71. 73. Treaty on Outer Space, Jan. 27, 1967, 610 UNTS 205. 74. Agreement Governing Activities on the Moon, Dec. 5, 1979, 1363 UNTS 3. 75. Treaty on the Rescue of Astronauts, Apr. 22, 1968, 672 UNTS 119. 76. See Hersch Lauterpacht, “Survey of International Law in Relation to the Work of Codification of the International Law Commission,” in Hersch Lauterpacht, International Law: The General Works, vol. 1, ed. E. Lauterpacht, 445–530 (Cambridge: Cambridge University Press, 1970). 77. 2 [1956] YB ILC, UN Doc. A/CN.4/SER.A/1956/Add.1, 256– 64. 78. Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 516 UNTS 205; Convention on the High Seas, Apr. 29, 1958, 450 UNTS 11; Convention on Fishing, Apr. 29, 1958, 559 UNTS 285; and Convention on the Continental Shelf, Apr. 29, 1958, 499 UNTS 311.

550

Notes to Pages 413–418

79. 2 [1958] YB ILC, UN Doc. A/CN.4/SER.A/1958/Add.1, 89–105. 80. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 500 UNTS 223. 81. 2 [1966] YB ILC, UN Doc. A/CN.4/SER.A/1966/Add.1, 178–87. 82. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331. 83. See Reservations to the Genocide Convention (adv. op.), 1951 ICJ Rep. 15. 84. Vienna Convention on the Law of Treaties, art. 19. 85. Draft Articles on Most-Favoured-Nation Clauses, 2 (pt. 2) [1978] YB ILC, UN Doc. A/CN.4/SER.A/1978/Add.1 (Part 2), 16–74. 86. Draft Articles and Commentary on Nationality in Relation to State Succession, 2 (pt. 2) [1999] YB ILC, UN Doc. A/CN.4./SER.A/1999/Add.1 (Part 2), 23– 47. 87. Draft Articles on Diplomatic Protection with Commentaries, GAOR (61st sess.), Supp. No 10, UN Doc. A/61/10 (2006), 24–100. 88. Lauterpacht, “International Protection.” 89. Maurice Bourquin, “Pouvoir scientifique et droit international,” 70 RdC 331–406 (1947). 90. H. Donnedieu de Vabres, “Le procès de Nuremberg devant les principes modernes du droit pénal international,” ibid., 447–582. 91. Roberto Ago, “Science juridique et droit international,” 90 RdC 851–958 (1956), 954. 92. Ian Brownlie, “General Course on Public International Law,” 255 RdC 9–227 (1995), 36. 93. Ibid., 30. 94. Ibid., 34–35. 95. Georg Schwarzenberger, The Inductive Approach to International Law (London: Stevens, 1965), 6. 96. Ibid., 41. 97. Ibid., 5. 98. Ibid., 13. 99. Ibid., 90. For strikingly similar views by Anzilotti, see Dionisio Anzilotti, Cours de droit international, vol. 1, trans. Gilbert Gidel (Paris: Sirey, 1929), 91–93. 100. Gaetano Arangio-Ruiz, “The Concept of International Law and the Theory of International Orga nization,” 137 RdC 629–742 (1972), 652. 101. Ibid., 651–53. 102. Ibid., 670–71. 103. Ibid., 654. 104. Ibid., 655. 105. Arangio-Ruiz, in Antonio Cassese and Joseph H. H. Weiler, eds., Change and Stability in International Law-Making (Berlin: Walter de Gruyter, 1988), 102. 106. Prosper Weil, in Cassese and Weiler, eds., Change and Stability, 12. 107. Prosper Weil, “Towards Relative Normativity in International Law?” 77 AJIL 413– 42 (1983), 416–17. 108. Ibid., 418.

Notes to Pages 418–425

551

109. Ibid., 419. 110. Ibid., 420. 111. Michel Virally, “Panorama du droit international contemporain: Cours général de droit international public,” 183 RdC 9–382 (1983), 180–86. 112. See, for example, American Law Institute, Restatement of the Foreign Relations Law of the United States Third (St. Paul, MN: ALI, 1987), § 102, comment d, 25–26. 113. See Ian Brownlie, Principles of Public International Law, 7th ed. (Oxford: Oxford University Press, 2008), 11. 114. Asylum Case (Peru v. Colombia), 1950 ICJ Rep. 266, 277–78; and AngloNorwegian Fisheries Case (Great Britain v. Norway), 1951 ICJ Rep. 116, 131. For unequivocal support by an individual World Court judge, see opinion of Judge Lachs, in North Sea Continental Shelf Cases (West Germany v. Netherlands, Denmark), 1969 ICJ Rep. 3, 229. 115. Serge Krylov, “Les notions principales du droit des gens: La doctrine soviétique du droit international,” 70 RdC 407–76 (1947). 116. Grigory Tunkin, “Politics, Law and Force in the Interstate System,” 219 RdC 227–395 (1989), 258. 117. Krylov, “Notions principales,” 435. 118. Alexander Yankov, in Cassese and Weiler, eds., Change and Stability, 114. 119. Institute of State and Law (Academy of Sciences of the U.S.S.R.), International Law: A Textbook for Use in Law Schools, ed. F. I. Kozhevnikov; trans. Dennis Ogden (Moscow: Progress, 1962). 120. Ibid., 55. 121. Ibid., 57. 122. Ibid. 123. V. I. Lisovsky, International Law (Kiev: Kiev University Press, 1955); quoted by John N. Hazard, in 51 AJIL 135–36 (1957), 135. 124. Whiteman, Digest, vol. 5, 834–36. 125. Institute of State and Law, International Law, 402. 126. Quincy Wright, “Legal Positivism and the Nuremberg Judgment,” 42 AJIL 405–14 (1948), 414. 127. Ibid., 407. 128. Ibid. 129. Lauterpacht, “International Protection,” 103– 4. 130. Ibid., 105. 131. See Chapter 11, on critical legal studies. 132. See generally Alejandro Álvarez, Le droit international nouveau dans ses rapports avec la vie actuelle des peuples (Paris: Pedone, 1959). 133. Dissenting opinion of Judge Álvarez in Status of South West Africa (adv. op.), 1950 ICJ Rep. 128, 175. 134. Dissenting opinion of Judge Álvarezin Competence of [General] Assembly Regarding Admissions to the United Nations (adv. op.), 1950 ICJ Rep. 4, 12.

552

Notes to Pages 425–433

135. Ibid., 14. 136. Ibid., 16. 137. C. Wilford Jenks, “Law for a Welfare World,” in Institut de Droit International, ed., Livre du Centenaire 1873–1973: Évolution et perspectives du droit international, 124–27 (Basle: S. Karger, 1973). See also C. Wilford Jenks, A New World of Law? A Study of the Creative Imagination in International Law (London: Longmans, Green, 1969). 138. Rolando Quadri, “Cours générale de droit international public,” 113 RdC 237– 483 (1964), 266. 139. Ibid., 267. (Emphasis in the original.) 140. Ibid. 141. Ibid., 268. 142. Ibid., 271. 143. Ibid., 275. 144. Ibid., 273. 145. See, for example, David Kennedy, “Tom Franck and the Manhattan School,” 35 NYU J Int’l L. and Pol. 397– 435 (2003). 146. Clyde Eagleton, International Government (New York: Ronald, 1948), 48–50. 147. Wolfgang Friedmann, “General Course in Public International Law,” 127 RdC 39–246 (1969), 47– 48. 148. Ibid., 93. 149. Philip C. Jessup, Transnational Law (New Haven, CT: Yale University Press, 1956). 150. Philip C. Jessup, “International Law in 1953 a.d.,” 47 ASIL Procs. 8–15 (1953), 12. 151. Ibid., 14. 152. Myres S. McDougal, “International Law, Power, and Policy: A Contemporary Conception,” 82 RdC 133–259 (1953), 168. 153. Myres S. McDougal and Harold D. Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order,” 53 AJIL 1–29 (1959) 9. 154. Ibid., 11. 155. Ibid., 6. 156. See, for example, Oran R. Young, “International Law and Social Science: The Contributions of Myres S. McDougal,” 66 AJIL 60–76 (1972). 157. See Martin Griffiths, Fifty Key Thinkers in International Relations (London: Routledge, 1999), 119–24. 158. See Richard A. Falk, A Study of Future Worlds (New York: Free Press, 1975). 159. Vienna Convention on the Law of Treaties, art. 53. 160. Barcelona Traction, Power and Light Co. (Belgium v. Spain), 1970 ICJ Rep. 3, para. 33. 161. Ibid., para. 34. 162. On this threefold division in the nineteenth century, see Chapter 8.

Notes to Pages 433–443

553

163. Peter Lyon, “The Emergence of the Third World,” in Hedley Bull and Adam Watson, eds., The Expansion of International Society, 229–37 (Oxford: Clarendon Press, 1984), 229. 164. Montreux Convention, May 8, 1937, 182 LNTS 37. See Jasper Y. Brinton, “The Closing of the Mixed Courts of Egypt,” 44 AJIL 303–12 (1950). 165. China-U.S.A., Treaty for Relinquishment of Extraterritorial Rights, Jan. 11, 1943, 10 UNTS 261. 166. See G.A. Res. 3201 (S-VI) (1974). 167. Protocol I to the Geneva Conventions of 1949, Dec. 12, 1977, 1125 UNTS 3, art. 1(4). 168. UN Charter, art. 1(2). 169. G.A. Res. 1514 (XV) (1960). 170. Western Sahara Case (adv. op.), 1975 ICJ Rep. 12, para. 59. 171. East Timor Case (Portugal v. Australia), 1995 ICJ Rep. 90, para. 29. 172. Consequences of the Wall (adv. op.), 2004 ICJ Rep. 136, para. 122. 173. See Chapter 7. 174. Reference re Secession of Quebec, [1998] 2 S.C.R. 217, reprinted in 37 ILM 1340 (1998). 175. Ibid., paras. 134–35. 176. Unilateral Declaration of Independence of Kosovo, 2010 ICJ Rep. 403.

11. Shadows across the Path 1. ICJ Press Release No. 2012/27, Sep. 28, 2012. 2. International Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 3. 3. Continental Shelf (Libya/Tunisia), 1982 ICJ Rep. 18; Gulf of Maine Case (Canada /U.S.A.), 1984 ICJ Rep. 246; and Continental Shelf (Libya/Malta), 1985 ICJ Rep. 13. 4. Tehran Hostages Case (U.S.A. v. Iran), Order, 1979 ICJ Rep. 6. 5. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 500 UNTS 95, art. 22. 6. Tehran Hostages Case (U.S.A. v. Iran), 1980 ICJ Rep. 3. 7. Algiers Declaration, Jan. 19, 1981, 20 ILM 224 (1981). 8. Military and Paramilitary Activities (Nicaragua v. U.S.A.), 1986 ICJ Rep. 14. 9. Ibid. para. 228. 10. Armed Activities in the Congo (Congo v. Uganda), 2005 ICJ Rep. 168, paras. 163– 65. 11. Armed Activities in the Congo (Congo v. Rwanda), 2006 ICJ Rep. 6. 12. G.A. Res. 49/75 K (1994). 13. Legality of Nuclear Weapons (adv. op.), 1996 ICJ Rep. 226. 14. Ibid., para. 105. 15. Ibid. 16. Consequences of the Wall (adv. op.), 2004 ICJ Rep. 136. 17. See Chapter 10.

554

Notes to Pages 444–450

18. John N. Hazard, “ ‘New Thinking’ in Soviet Approaches to International Politics and Law,” 2 Pace Int’l L. Rev. 2–19 (1990). 19. Robert A. Jones, The Soviet Concept of “Limited Sovereignty” from Lenin to Gorbachev: The Brezhnev Doctrine (Basingstoke: Macmillan, 1990), 167. 20. Dispatch, U.S. Department of State, Sep. 17, 1990, 91. 21. Ibid. 22. S.C. Res. 841, June 16, 1993. 23. S.C. Res. 940, July 31, 1994. 24. Genocide Convention Case (Bosnia v. Serbia), 2007 ICJ Rep. 43. 25. Marrakesh Agreement Establishing the WTO, Apr. 15, 1994, 1867 UNTS 3. 26. See Convention on the Settlement of Investment Disputes, Mar. 18, 1965, 575 UNTS 159. 27. See George H. Aldrich, The Jurisprudence of the Iran–United States Claims Tribunal: An Analysis of the Decisions of the Tribunal (Oxford: Clarendon Press, 1996), 171–276. 28. UN Convention on the Law of the Sea, art. 226. 29. Convention against Torture, Dec. 10, 1984, 1465 UNTS 85, art. 22. 30. Convention on Racial Discrimination, Mar. 7, 1966, 660 UNTS 195, art. 14. Convention on Discrimination against Women, Dec. 18, 1979, 1249 UNTS 13; and Optional Protocol, Oct. 6, 1999, 2131 UNTS 83. Convention on the Rights of Disabled Persons, and Optional Protocol, Dec. 13, 2006, 2515 UNTS 3. 31. Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights, Dec, 10, 2008, 48 ILM 256 (2009). 32. European Convention on Human Rights, Nov. 4, 1950, 213 UNTS 221. 33. American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123. 34. African Charter of Human and Peoples’ Rights, June 27, 1981, 1520 UNTS 217. 35. See Statute of the African Court on Human and Peoples’ Rights, June 10, 1998, OAU Doc.OAU/LEG/MIN/AFCHPR/PROT(1)Rev 2 (1998). 36. S.C. Res. 827, May 25, 1993. 37. On the early operation of the Yugoslavia Tribunal, see Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, NJ: Princeton University Press, 2000), 206–75. 38. Genocide Convention, Dec. 9, 1948, 78 UNTS 277, art. 2. 39. Statute of the Yugoslavia Crimes Tribunal, Report of the Secretary-General, UN Doc. S/25704 (1993), Annex, 36– 48, art. 5; reprinted in Christine Van den Wyngaert, ed., International Criminal Law: A Collection of International and European Instruments, 2nd ed. (The Hague: Kluwer Law International, 2000), 73–81. 40. S.C. Res. 955, Nov. 8, 1994. 41. See, for example, “Statement of the Registrar Concerning the Contract of Employment of a Defence Investigator,” ICTR Doc. ICTR/INFO9–3–04, Aug. 17, 2001.

Notes to Pages 450–456

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42. See Howard W. French, “Kagama’s Hidden War in the Congo,” N.Y. Rev. of Books, Sep. 24, 2009, 46. 43. See Report of the International Tribunal for the Former Yugoslavia, UN Doc. A/67/214—S/2012/592 (2012). 44. See the tribunal’s website, at www.ictr.org. 45. Rome Statute, July 17, 1998, 2187 UNTS 3. 46. ICC Doc. RC/Res.6 (2010). 47. S.C. Res. 1593, Mar. 31, 2005. 48. S.C. Res. 1970, Feb. 26, 2011. 49. See Pierre-Marie Dupuy, “L’unité de l’ordre juridique international: Cours générale de droit international public,” 297 RdC 9– 490 (2002). 50. Francis Fukuyama, The End of History and the Last Man (London: Hamish Hamilton, 1992). 51. On Franck’s theories, see Janne Elisabeth Nijman, The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law (The Hague: T. M. C. Asser Press, 2004), 408–16 52. Thomas M. Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995), 140. 53. Ibid., 477. 54. See Chapter 6. 55. See, especially, Gerhardt Niemeyer, Law without Force: The Function of Politics in International Law (Princeton, NJ: Princeton University Press, 1941). 56. Bruno Simma, “From Bilateralism to Community Interest in International Law,” 25 RdC 217–384 (1994). 57. See Alfred Verdross, Der Verfassung der Völkerrechtsgemeinschaft (Vienna: Springer, 1926). See also Johannes Mattern, “Problems of Method in International Law: Alfred Verdross’ Concept of the Unity of the Legal Order on the Basis of an International Constitution,” in Stuart A. Rice, ed., Methods in Social Science: A Case Book, 118–36 (Chicago, IL: University of Chicago Press, 1931). 58. See Alfred Verdross and Bruno Simma, Universelles Völkerrecht: Theorie und Praxis (Berlin: Duncker und Humblot, 1976). 59. Arnold McNair, “Functions and Differing Legal Character of Treaties,” 11 BYBIL 100–18 (1933), 112–14. 60. Quincy Wright, The Study of International Relations (New York: AppletonCentury-Crofts, 1955), 230. 61. See Chapter 9. 62. See Simma, “Bilateralism,” 279–83. 63. Dissenting opinion of Judge Álvarez, Reservations to the Genocide Convention (adv. op.), 1951 ICJ Rep. 15, 53. 64. Garrett Hardin, “The Tragedy of the Commons,” 162 Science 1243– 48 (1968). 65. Ibid., 1246.

556

Notes to Pages 456–462

66. Ibid. 67. See Kenneth Boulding, The Meaning of the Twentieth Century: The Great Transition (London: George Allen and Unwin, 1965), 135–36. 68. See Study Group of the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682 (2006), 65–115. 69. See Chapter 9. 70. Study Group of the ILC, Fragmentation, at 244–56. See also Report of ILC on 58th Sess., 2 (pt. 2) [2006] Y.B. ILC, UN Doc. A/61 /10 (2006), 400–23. 71. Study Group of the ILC, Fragmentation, at 249. 72. Benedict Kingsbury, “The Administrative Law Frontier in Global Governance,” 99 ASIL Procs. 143–53 (2005), 143; and Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, “The Emergence of Global Administrative Law,” [2005] L. and Cont. Prob. 15– 61, 19–20. 73. Jeffrey L. Dunoff and Joel P. Trachtman, “A Functional Approach to International Legal Constitutionalization,” in Jeffery L. Dunoff and Joel P. Trachtman, eds., Ruling the World? Constitutionalism, International Law, and Global Governance, 69–109 (Cambridge: Cambridge University Press, 2009), 33–34. 74. David Kennedy, “A New Stream of International Law Scholarship,” 7 Wis. Int’l L. J. 1– 49 (1988), 9. 75. Ibid., 8. 76. David Kennedy, “Theses about International Legal Discourse,” 23 GYBIL 353– 91 (1980), 390. 77. Ibid., 390–91. 78. Martti Koskenniemi, From Apology to Utopia: The Structure of Legal Argument (Cambridge: Cambridge University Press, 1989), 554. 79. Ibid., 552–54. 80. Ibid., 555. 81. Ibid., 560. 82. David Kennedy, “The Mystery of Global Governance,” in Dunoff and Trachtman, eds., Ruling the World, 64. 83. Ibid., 54. 84. See Koskenniemi, From Apology to Utopia, 71–94. 85. David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton, NJ: Princeton University Press, 2004), 15–16. 86. Ibid., 22–23. 87. Kennedy, “New Stream,” 47– 48. 88. “McDougal’s Jurisprudence: Utility, Influence, Controversy,” 79 ASIL Procs. 266–88 (1985), 286. 89. Nigel Purvis, “Critical Legal Studies in Public International Law,” 32 Harvard Int’l L. J. 81–127 (1991), 120–27. 90. See Chapter 2.

Notes to Pages 462–468

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91. Johann Kaspar Bluntschli, The Theory of the State, 3rd English ed. (Oxford: Clarendon Press, 1895), 23. 92. Cornelius van Vollenhoven, The Three Stages in the Evolution of the Law of Nations (The Hague: Martinus Nijhoff, 1919), 92. 93. Convention on the Political Rights of Women, Mar. 31, 1953, 193 UNTS 135. 94. Convention on the Elimination of Discrimination against Women, Dec. 18, 1979, 1249 UNTS 13. 95. Optional Protocol (to the Convention on Discrimination against Women), Oct. 6, 1999, 2131 UNTS 83. 96. Hilary Charlesworth, Christine Chinkin, and Shelley Wright, “Feminist Approaches to International Law,” 85 AJIL 613– 45 (1991), 625–30. 97. Ibid., 632. 98. Hilary Charlesworth, “Feminist Ambivalence about International Law,” 11 Int’l Legal Theory 1–11 (2005), 6. 99. Charlesworth, Chinkin, and Wright, “Feminist Approaches,” 629. 100. Hilary Charlesworth, “Feminist Methods in International Law,” 93 AJIL 379– 94 (1999), 392. 101. Charlesworth, Chinkin, and Wright, “Feminist Approaches,” 634. 102. Ibid., 615. 103. Charlesworth, “Feminist Methods,” 379. 104. Charlesworth, Chinkin, and Wright, “Feminist Approaches,” 634. 105. Ibid., 634–38. 106. Charlesworth, “Feminist Ambivalence,” 1. 107. Ibid., 4. 108. See Application for Revision and Interpretation (Tunisia/Libya), 1985 ICJ Rep. 192. 109. Book Review, 87 AJIL 160– 64 (1993), 162. 110. Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990), 4. 111. Ibid., xix. 112. Philip Allott, The Health of Nations: Society and Law beyond the State (Cambridge: Cambridge University Press, 2002), 315. 113. See Teihard de Chardin, The Phenomenon of Man (London: William Collins Sons, 1959), 283–90, 294–99. 114. Clyde Eagleton, “The Individual and International Law,” 40 ASIL Procs. 22–29 (1946), 29. 115. Ibid. 116. See Theodore Leavitt, “The Globalization of Markets,” 61 Harvard Business Review 92–102 (May 1983). 117. Dudgeon v. U.K., 4 EHRR 149 (1981). 118. Eric Posner, The Perils of Legal Globalism (Chicago, IL: University of Chicago Press, 2009), xii.

558

Notes to Pages 469–472

119. Cicero, On Duties, ed. M. T. Griffin and E. M. Atkins; trans. E. M. Atkins (Cambridge: Cambridge University Press, 1991 [44 b.c.]), 141. 120. Alberico Gentili, On the Law of War, trans. John C. Rolfe (Oxford: Clarendon Press, 1933 [1598]), 124. 121. Emmerich de Vattel, The Law of Nations; or, The Principles of Natural Law Applied to the Conduct and to the Affairs of the Nations and Sovereigns, trans. Charles G. Fenwick (Washington, DC: Carnegie Institution, 1916 [1758]), 93. See also Henry Wheaton, Elements of International Law (Philadelphia: Carey, Lea and Blanchard, 1836), 112–14. 122. Geneva Convention I on Wounded and Sick on Land, Aug. 12, 1949, 75 UNTS 31, art. 49; Geneva Convention II, on Wounded and Sick at Sea, Aug. 12, 1949, 75 UNTS 85, art. 50; Geneva Convention III, on Prisoners of War, Aug. 12, 1949, 75 UNTS 135, art. 129; and Geneva Convention IV, on Civilians, Aug. 12, 1949, 75 UNTS 287, art. 146. 123. For an informative summary of state practice in this regard, see Table 1 of UN Secretary-General, The Scope and Application of the Principle of Universal Jurisdiction, UN Doc. A/65/181 (2010), 28–32. 124. Hague Convention on Aerial Hijacking, Dec. 16, 1970, 860 UNTS 105, art. 7. 125. See Montreal Convention on Unlawful Acts against Civil Aviation, Sep. 23, 1971, 974 UNTS 177, art. 7; International Convention against the Taking of Hostages, Dec. 17, 1979, 1316 UNTS 205, art. 8(1); International Convention against Maritime Terrorism, Mar. 10, 1988, 1678 UNTS 221, art. 10(1); and International Convention for the Suppression of Terrorist Bombings, Dec. 15, 1997, 2149 UNTS 256, art. 8. 126. Convention against Torture, Dec. 10, 1984, 1465 UNTS 85, art. 5(2). 127. Jorgi v. Germany, 47 EHRR 207 (2007), paras. 64–72. 128. UN Secretary-General, Scope and Application, 14–15. 129. Opinion of Judge Guillaume, Arrest Warrant Case (Congo v. Belgium), 2002 ICJ Rep. 3, 35, para. 15. 130. Decision No. Assembly/AU/Dec.199(XI) (2008). See also AU Doc. Assembly/ AU/Dec.292 (XV) (2010). 131. AU-EU, Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction, Report, Council of Europe Doc. 8672/1/09, REV 1 (2009). 132. Ibid., 40– 42. 133. Henry Kissinger, Does America Need a Foreign Policy? Toward a Diplomacy for the Twenty-First Century (New York: Simon and Schuster, 2001), 273. 134. Ibid., 275–76. 135. Ibid., 273. 136. UN Secretary-General, Report on Universal Jurisdiction, UN Doc. A/65/181 (2010), 22. 137. R. v. Bow Street Magistrate, ex p. Pinochet Ugarte (No. 3), [2000] 1 A.C. 147. 138. Roman Anatolevich Kolodkin, Second report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/631 (2010), 5, n. 19.

Notes to Pages 472–478

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139. Ibid. 140. See Thomas M. Franck and Nigel S. Rodley, “After Bangladesh: The Law of Humanitarian Intervention by Military Force,” 67 AJIL 275–305 (1973). 141. See, for example, Ian Brownlie, “Humanitarian Intervention,” in J. N. Moore, ed., Law and Civil War in the Modern World, 217–28 (Baltimore: Johns Hopkins University Press, 1974). 142. Legality of Use of Force (Serbia v. Belgium), 1999 ICJ Rep. 124, paras. 22–30. 143. Legality of Use of Force in Kosovo (Preliminary Objections) (Serbia v. NATO States), 2004 ICJ Rep. 279. 144. See Statute of the Yugoslavia Crimes Tribunal, art. 7(2); Statute of the Rwanda Crimes Tribunal, S.C. Res. 955, Nov. 8, 1994, Annex, art. 6(2); and Rome Statute, art. 27. 145. 55 Keesing’s Record of World Events, 49073 (2009). 146. Ibid. 147. See Bolton to UN Secretary-General, May 6, 2002, in Sean D. Murphy, ed., United States Practice in International Law: 2002–2004, vol. 2 (Cambridge: Cambridge University Press, 2005), 306–7. 148. See Jennifer K. Elsea, “U.S. Policy Regarding the International Criminal Court,” Congressional Research Ser vice, Doc. RL31495 (2006). 149. American Ser vicemembers’ Protection Act 2002, 22 U.S. Code §§ 7421–7433, 116 Stat. 899 (2002). 150. Ibid., § 7427. 151. Errol P. Mendes, Peace and Justice at the International Criminal Court: A Court of Last Resort (Cheltenham: Edward Elgar, 2010), 100– 06. 152. Decision 13 (XIII) on the Meeting of African States Parties to the Rome Statute, AU Doc. Assembly/AU/Dec.245 (XIII) Rev.1 (2009). 153. Decision Informing the UN Security Council and the Assembly of the States Parties of Al-Bashir’s recent visit to Chad, Aug. 27, 2010, ICC Doc. ICC-02/05-01/09-109; No. Decision Informing the UN Security Council and the Assembly of the States Parties of Al-Bashir’s Presence in Kenya, Aug. 27, 2010, ICC Doc. ICC-02/05-01/09-107; and Decision Informing the UN Security Council and the Assembly of the States Parties of Al-Bashir’s Visit to Djibouti, May 12, 2011, ICC Doc. ICC-02/05-01/09-129. 154. Sam Dealey, “Omar al-Bashir: Sudan’s Most Wanted Man,” Time World, Aug. 13, 2009. 155. Decision on Noncompliance by Malawi, Dec. 12, 2011, ICC Doc. ICC- 02/0501/09-139; and Decision on Noncompliance by Chad, Dec. 13, 2011, ICC Doc. ICC02/05- 01/09-140. 156. Decision on Noncompliance by Chad, Mar. 26, 2013, ICC Doc. ICC- 02/ 05- 01/09-151. 157. Decision 670 (XIX) on the International Criminal Court, AU Doc. Assembly/ AU/Dec.366(XVII) (2011).

Bibliographic Essay

This essay is designed to inform general readers of relevant readings that can be profitably consulted for more detailed treatment of the various topics covered—necessarily briefly—in this book. It does not purport or pretend to be a comprehensive bibliography. In par ticu lar, works that are not readily available or that are highly technical are deliberately not included here. They are identified, where relevant, in notes to the text.

General There are several general works that readers may find useful. Douglas M. Johnston, The Historical Foundations of World Order: The Tower and the Arena (Martinus Nijhoff, 2008) is an immensely learned book, focusing on the role of law in international affairs, that is, on state practice more than on the intellectual aspects of the subject. It is broadly chronological up to 1905 and then topical after that (thereby largely omitting the interwar period). See also Wilhelm Grewe, The Epochs of International Law (trans. and rev. by Michael Byers; Walter de Gruyter, 2000), which also concentrates on state practice rather than on ideas, beginning with medieval Europe and tracing a selected number of topics through history. It is, effectively, a political history of international law. A work that focuses on ideas with comparatively little attention to state practice is Gustavo Gozzi, Diritti e civilità: Storia e filosofia del diritto internazionale (Il Mulino, 2010), which begins with the sixteenth century. Slim Laghmani, Histoire du droit des gens du jus gentium au jus publicum europaeum (Pedone, 2004) concentrates on the broad intellectual aspects of international law and the political factors underlying them, covering the subject up to the First World War. Dominque Gaurier, Histoire du droit international: Auteurs, doctrines et développement de l’Antiquité à l’aube de la période contemporaine (Presses universitaires de Rennes, 2005) also provides a thorough survey of both state practice and the contributions of a wide range of individual writers, up to the period of the First World War. Some older treatments continue to be very useful. Prominent in this regard is Arthur Nussbaum, A Concise History of the Law of Nations (2nd ed.; Macmillan, 1954). An unjustly neglected work is Adda B. Bozeman, Politics and Culture in International History (Princeton University Press, 1960). See also Ludwik Ehrlich, “The Development of International Law as a Science,” 105 RdC 173–265 (1962). Martin Wight, Systems of

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States (ed. by Hedley Bull; Leicester University Press, 1977), while not a legal work, nevertheless contains much valuable material at 73–109. There are several major collective works. Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law (Oxford University Press, 2012) is a notable contribution. Its focus is thematic rather than chronological, primarily covering the modern (i.e., postmedieval) period, with no detailed treatment of ancient societies and little of the European Middle Ages. Alexander Orakhelashvili (ed.), Research Handbook on the Theory and History of International Law (Edward Elgar, 2011) contains much of interest, although its balance is rather more heavily on theory than on history. There are many works that deal with par ticu lar themes or topics in international law from a historical point of view. On arbitration, see Jackson H. Ralston, International Arbitration from Athens to Locarno (Stanford University Press, 1929). On war, see Stephen C. Neff, War and the Law of Nations: A General History (Cambridge University Press, 2005). On neutrality, see Stephen C. Neff, The Rights and Duties of Neutrals: A General History (Manchester University Press, 2000); Carl J. Kulsrud, Maritime Neutrality to 1780: A History of the Main Principles Governing Neutrality and Belligerency to 1780 (Little, Brown, 1936); and Philip C. Jessup and Francis Deák, Neutrality: Its History, Economics and Law. The Origins (Columbia University Press, 1935). On peace treaties, see Randall Lesaffer (ed.), Peace Treaties and International Law in European History: From the Late Middle Ages to World War One (Cambridge University Press, 2004). On diplomatic immunity, see Linda S. Frey and Marsha L. Frey, The History of Diplomatic Immunity (Ohio State University Press, 1999). On the law of the sea, see R. P. Anand, Origin and Development of the Law of the Sea: History of International Law Revisited (Martinus Nijhoff, 1983), which is notable for giving substantial coverage to non-European experiences. See also J. K. Oudendijk, Status and Extent of Adjacent Waters: A Historical Orientation (Sijthoff, 1970). On economic relations, see Stephen C. Neff, Friends but No Allies: Economic Liberalism and the Law of Nations (Columbia University Press, 1990). On human rights, see Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (University of California Press, 2008). On the codification of international law, see Ernest Nys, “The Codification of International Law,” 5 AJIL 871–900 (1911); and R. P. Dhokalia, The Codification of Public International Law (Manchester University Press, 1970). On the concept of legal personality, see Janne Elisabeth Nijman, The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law (T. M. C. Asser Press, 2004), a book that ranges more broadly than its title would suggest. On natural law, a major theme of this history, there is surprisingly little material that is oriented to a general readership. For a general overview of natural law, probably the best existing work is Clarence J. Glacken, Traces on the Rhodian Shore: Nature and Culture in Western Thought from Ancient Times to the End of the Eighteenth Century (University of California Press, 1967), although it does not attempt to cover interna-

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tional law. For a more strictly legal study of the subject, see Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (trans. by Thomas R. Hanley; Liberty Fund, 1998 [1936]), although it, too, is not focused on international law. Since practically every book on international relations or international politics contains at least something of legal relevance, there is no point in even attempting a comprehensive list. Several works on the history of international relations, however, do merit specific mention. These include Andreas Osiander, Before the State: Systemic Political Change in the West from the Greeks to the French Revolution (Oxford University Press, 2007); Andrew Phillips, War, Religion and Empire: The Transformation of International Orders (Cambridge University Press, 2010); and Adam Watson, The Evolution of International Society (Routledge, 1992). For histories of international relations theory, see Torbjørn L. Knutsen, A History of International Relations Theory (2nd ed.; Manchester University Press, 1997); Brian C. Schmidt, The Political Discourse of Anarchy: A Disciplinary History of International Relations (State University of New York Press, 1998); David Boucher, Political Theories of International Relations: From Thucydides to the Present (Oxford University Press, 1998); and Frank M. Russell, Theories of International Relations (D. Appleton-Century, 1936), still remarkably useful despite its age. On the interplay between international law and international relations theory generally, a fine overview is Anne-Marie Slaughter Burley, “International Law and International Relations Theory: A Dual Agenda,” 87 AJIL 205–39 (1993). For an interesting series of explorations of why non-Western societies have not developed a systematic science of international relations, see Amitav Acharya and Barry Buzan (eds.), Non-Western International Relations Theory: Perspectives on and beyond Asia (Routledge, 2010). There are surprisingly few works on national traditions in international law. A particularly notable entrant in this field is Angelo Piero Sereni, The Italian Conception of International Law (Columbia University Press, 1943). On the United States, see Mark W. Janis, The American Tradition of International Law: Great Expectations 1789–1914 (Oxford University Press, 2004), which is a stimulating presentation of several themes, though not a systematic treatment. On Russia, see V. E. Grabar, The History of International Law in Russia, 1647–1917: A Bio-Bibliographical Study (Clarendon Press, 1990).

1. Doing Justice to Others For those interested in theories of an innate, biologically based sense of justice in humans, much of interest may be found in Marc D. Hauser, Moral Minds: How Nature Designed Our Universal Sense of Right and Wrong (Ecco, 2006); and Laurence R. Tancredi, Hardwired Behavior: What Neuroscience Reveals about Morality (Cambridge University Press, 2005). For powerful opposition to biological explanations of human social behavior, see Jesse J. Prinz, Beyond Human Nature: How Culture and Experience Shape Our Lives (Allen Lane, 2012). For the controversial thesis of a normative (if

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not quite a moral) sense even in animals, see Marc Bekoff and Jessica Pierce, Wild Justice: The Moral Lives of Animals (University of Chicago Press, 2009). On parochial altruism, see Edward O. Wilson, The Social Conquest of the Earth (W. W. Norton, 2012), 57–76, 241–54. For the famous experiment demonstrating the power of reciprocity, see Robert Axelrod, The Evolution of Cooperation (Basic, 1984). For a broad-ranging survey of prehistoric and early historic intertribal and “international” relations, see Ragnar Numelin, The Beginnings of Diplomacy: A Sociological Study of Intertribal and International Relations (Oxford University Press, 1950). For treatment of the ancient Middle Eastern and Mediterranean civilizations (Egypt, the Middle East, Greece, and Rome), see David J. Bederman, International Law in Antiquity (Cambridge University Press, 2001), which deals with the three major areas of state practice in antiquity: diplomacy (88–120), treaty making (137–206), and warfare (207– 66). On the ancient Middle East, the leading work is Amnon Altman, Tracing the Earliest Recorded Concepts of International Law: The Ancient Near East (2500–330 bce) (Martinus Nijhoff, 2012). A brief but informative survey of the system of states may be found in Adam Watson, The Evolution of International Society (Routledge, 1992), 24– 39. For a far more detailed treatment, with substantial legal content, see Amanda H. Podany, Brotherhood of Kings: How International Relations Shaped the Ancient Near East (Oxford University Press, 2010), covering the period up to the thirteenth century b.c. On treaty-making practice specifically, see Peter Karavites, Promise-Giving and Treaty-Making: Homer and the Near East (E. J. Brill, 1992); Donald L. Magnetti, “The Function of the Oath in the Ancient Near Eastern International Treaty,” 72 AJIL 815– 29 (1978); and Bederman, International Law in Antiquity, 137–54. On ancient India, there is an acute shortage of good material. Useful information on relevant legal theory may be found in Frank M. Russell, Theories of International Relations (D. Appleton-Century, 1936), 37–50. Kautilya naturally attracts the lion’s share of attention. See George Modelski, “Kautilya: Foreign Policy and International System in the Ancient Hindu World,” 58 Am. Pol. Sci. Rev. 549– 60 (1964); and, more specifically legal in focus, C. H. Alexandrowicz, “Kautilyan Principles and the Law of Nations,” 41 BYBIL 301–20 (1965– 66). See also H. S. Bhatia (ed.), International Law and Practice in Ancient India (Deep and Deep, 1977); and Nagendra Singh, “The Distinguishing Characteristics of the Concept of the Law of Nations as It Developed in Ancient India,” in Maarten Bos and I. Brownlie (eds.), Liber Amicorum for Lord Wilberforce, 91–107 (Clarendon Press, 1987). On warfare, see V. R. Ramachandra Dikshitar, War in Ancient India (Macmillan, 1948). Ancient China is better served, although there is no recent book-length treatment of international law in any major European language. The best work available therefore continues to be Richard Lewis Walker, The Multi-State System of Ancient China (Shoe String Press, 1953). See also Rune Svarverud, International Law as World Order in Late Imperial China: Translation, Reception and Discourse, 1847–1911 (Leiden: Brill, 2007), 150– 61; Watson, Evolution of International Society, 85–93; and Roswell S.

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Britton, “Chinese Interstate Intercourse before 700 b.c.,” 29 AJIL 616–35 (1935). On Chinese ideas about international relations generally, see C. P. Fitzgerald, The Chinese View of Their Place in the World (Oxford University Press, 1964); Benjamin I. Schwartz, “The Chinese Perception of World Order, Past and Present,” in John King Fairbank (ed.), The Chinese World Order: Traditional China’s Foreign Relations, 276– 88 (Harvard University Press, 1968); and Yang Lien-sheng, “Historical Notes on the Chinese World Order,” in Fairbank (ed.), Chinese World Order, 20–33. On the Confucian tradition in international affairs, see Russell, Theories of International Relations, 19–25. The classic work, W. A. P. Martin, The Lore of Cathay; or The Intellect of China (Oliphant, Anderson and Ferrier, 1901), continues to be useful. More specifically on international law in the preimperial era, see Yongjin Zhang, “System, Empire and State in Chinese International Relations,” 27(5) Rev. Int’l Stud. 43– 63 (2001), 45–51; Chen Shih-tsai, “The Equality of States in Ancient China,” 35 AJIL 641–50 (1941); and Wang Tieya, “International Law in China: Historical and Contemporary Perspectives,” 221 RdC 195–309 (1990), 205–13. On treaty making, see John K. Fairbank, “The Early Treaty System in the Chinese World Order,” in Fairbank (ed.), Chinese World Order, 257–75. On Mencius in par ticu lar, see Kwong-loi Shun, Mencius and Early Chinese Thought (Stanford University Press, 1997), 163–73; Russell, Theories of International Relations, 20–22; and Elbert Duncan Thomas, Chinese Political Thought: A Study Based upon the Theories of the Principal Thinkers of the Chou Period (Williams and Norgate, 1928), 244–52. On the imperial period in China (i.e., post 221 b.c.), see Zhang, “System, Empire and State,” 51–58. For a more specifically legal focus, see Douglas M. Johnston, The Historical Foundations of World Order: The Tower and the Arena (Martinus Nijhoff, 2008), 471–80; and Tieya, “International Law in China,” 214–25. On the tribute system, the core institution of international relations in the period, see Charles Holcombe, The Genesis of East Asia 221 b.c.–a.d. 907 (Association for Asian Studies, 2001), 53– 60. On the nature of China’s relations with neighboring states in the Sung period (tenth to thirteenth centuries), see Morris Rossabi (ed.), China among Equals: The Middle Kingdom and Its Neighbors, 10th–14th Centuries (University of California Press, 1983), especially two of the contributions: Wang Gungwu, “The Rhetoric of a Lesser Empire: Early Sung Relations with Its Neighbors,” 47– 65; and Tao Jing-shen, “Barbarians or Northerners: Northern Sung Images of the Khitans,” 66–86. On ancient Greece and Rome generally, there is still much that is valuable in Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome (2 vols.; Macmillan, 1911). On the Greek state system generally, see Watson, Evolution of International Society, 47– 68; Bederman, International Law in Antiquity, 31– 41; Martin Wight, Systems of States (ed. by Hedley Bull; Leicester University Press, 1977), 46–72; Russell, Theories of International Relations, 51–74; Arthur M. Eckstein, Mediterranean Anarchy, Interstate War, and the Rise of Rome (University of California Press, 2006), 37–117; and Polly Low, Interstate Relations in Classical Greece: Morality and Power (Cambridge University Press, 2007), especially 77–128, where legal themes

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are discussed. For a forceful presentation of the case for a strong international legal sense among the Greek city-states, see Peter Hunt, War, Peace, and Alliance in Demosthenes’ Athens (Cambridge University Press, 2010), 215–36. On international law in ancient Greece generally, see Johnston, Historical Foundations, 180–99. On laws of warfare in ancient Greece, see Josiah Ober, “Classical Greek Times,” in Michael Howard, George J. Andreopoulos, and Mark R. Shulman (eds.), The Laws of War: Constraints on Warfare in the Western World, 12–26 (Yale University Press, 1994). For a contrary view, flatly denying the existence of international law in ancient Greece, see Eckstein, Mediterranean Anarchy, 37– 42, who writes from the standpoint of the realist school of international relations. On theoretical speculations in ancient Greece, see Russell, Theories of International Relations, 51–74. On Plato’s ideas on international relations, an excellent short discussion may be found in Ernest Barker, Greek Political Theory: Plato and His Predecessors (5th ed.; Methuen, 1960), 307–11. On the ideas of the stoics, see David Boucher, Political Theories of International Relations: From Thucydides to the Present (Oxford University Press, 1998), 176–80. On state practice in international law among the Greek states, see Dominque Gaurier, Histoire du droit international: Auteurs, doctrines et développement de l’Antiquité à l’aube de la période contemporaine (Presses universitaires de Rennes, 2005), 52– 66. See also George A. Sheets, “Conceptualizing International Law in Thucydides,” 115 American Journal of Philology 51–73 (1994). For a thoroughgoing study of neutrality, see Robert A. Bauslaugh, The Concept of Neutrality in Classical Greece (University of California Press, 1991). On the important topic of arbitration, see Marcus Niebuhr Tod, International Arbitration amongst the Greeks (Clarendon Press, 1913); and Sheila L. Ager, Interstate Arbitrations in the Greek World, 337–90 b.c. (University of California Press, 1996), for a comprehensive collection of all arbitration material for the relevant period. On treaty making, see Bederman, International Law in Antiquity, 154–83. Ancient Rome, for such a legalistic society, has produced or inspired disappointingly little material on international law. See, however, Johnston, Historical Foundations, 199–227. On Roman state practice, see Gaurier, Histoire du droit international, 56–80. See also Watson, Evolution of International Society, 94–106. On the ius fetiale, see Alan Watson, International Law in Archaic Rome: War and Religion (Johns Hopkins University Press, 1993). For a perceptive analysis of Roman treaty making, see Christian Baldus, “Vestigia pacis. The Roman Peace Treaty: Structure or Event?” in Randall Lesaffer (ed.), Peace Treaties and International Law in European History: From the Late Middle Ages to World War One, 103–46 (Cambridge University Press, 2004). For two instructively disparate views of an incident in 191 b.c., involving an attempted surrender to Rome of the Aetolian League forces, see Paul J. Burton, “Ancient International Law, the Aetolian League, and the Ritual of Surrender during the Roman Republic: A Constructivist View,” 31 Int’l Hist. Rev. 237–52 (2009); and Arthur M. Eckstein, “Ancient ‘International Law’, the Aetolian League, and the Ritual of Unconditional Surrender to

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Rome: A Realist View,” 31 Int’l Hist. Rev. 253– 67 (2009). On Cicero’s contribution to international law, see Johnston, Historical Foundations, 217–24. On cosmopolitan thought and ideals in ancient Greece, see H. C. Baldry, The Unity of Mankind in Greek Thought (Cambridge University Press, 1965). On natural law in Roman legal thought, see Barry Nicholas, An Introduction to Roman Law (Clarendon Press, 1962), 54–59. On the Roman-law ius gentium, see Phillipson, International Law and Custom, vol. 1, 70–81. For more recent treatments, see Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Presses universitaires de France, 1983), 313–20; and Peter Stein, “Roman Law,” in J. H. Burns (ed.), The Cambridge History of Medieval Political Thought c. 350–c. 1450, 37– 47 (Cambridge University Press, 1988).

2. Keeping Kings in Check On international relations generally in the Middle Ages, see François L. Ganshof, The Middle Ages: A History of International Relations (trans. by Rémy Inglis Hall; Harper and Row, 1970), which contains much information; and, more briefly, Adam Watson, The Evolution of International Society (Routledge, 1992), 138–51. Also containing useful information, though not specifically directed to international law, is Bernard Guenée, States and Rulers in Later Medieval Europe (trans. by Julet Vale; Basil Blackwell, 1985). On international law in par ticu lar, see Douglas M. Johnston, The Historical Foundations of World Order: The Tower and the Arena (Martinus Nijhoff, 2008), 243–319; Heinrich Kipp, Völkerordnung und Völkerrecht im Mittelalter (Deutsche Glocke, 1950); and John Eppstein, Catholic Tradition of the Law of Nations (Burns Oates and Washbourne, 1935). On state practice in the realm of international law, see Dominque Gaurier, Histoire du droit international: Auteurs, doctrines et développement de l’Antiquité à l’aube de la période contemporaine (Presses universitaires de Rennes, 2005), 85–133. On international relations ideas, see Frank M. Russell, Theories of International Relations (D. Appleton-Century, 1936), 90–115. For a detailed study of the Carolingian period, see Heinhard Steiger, Die Ordnung der Welt: Eine Völkerrechtsgeschichte des karolingischen Zeitalters (741 bis 840) (Böhlau, 2010). On the various ideas about the ius gentium in the Middle Ages, see the masterful discussion in Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Presses universitaires de France, 1983), 311–58. For a fine short account in English, see Donald R. Kelley, The Human Mea sure: Social Thought in the Western Legal Tradition (Harvard University Press, 1990), 121–27. On just-war doctrine, the best general account is Frederick H. Russell, The Just War in the Middle Ages (Cambridge University Press, 1975). For an excellent short exposition, see Jonathan Barnes, “The Just War,” in N. Kretzmann, A. Kenny, and J. Pinborg (eds.), The Cambridge History of Later Medieval Philosophy, 771–84 (Cambridge University Press, 1982). See also Stephen C. Neff, War and the Law of Nations: A General History (Cambridge University Press, 2005), 45– 68; and Kipp, Völkerordnung und

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Völkerrecht, 132– 41. On the seminal contribution of Augustine to just war thought, see Richard Shelley Hartigan, “Saint Augustine on War and Killing: The Problem of the Innocent,” 27 J. Hist. Ideas 195–204 (1966); and Paul Ramsey, “The Just War According to St Augustine,” in Jean Bethke Elshtain (ed.), Just War Theory, 8–22 (Basil Blackwell, 1992). Also on the formative period of just-war doctrine is Dominique Bauer, “Ivo of Chartres, the Gregorian Reform and the Formation of the Just War Doctrine,” 7 JHIL 43–54 (2005). On preventive war, see Gregory M. Reichberg, “Preventive War in Classical Just War Theory,” 9 JHIL 5–34 (2007). For a thorough exploration of medieval peacemaking, see Jenny Benham, Peacemaking in the Middle Ages: Principles and Practice (Manchester University Press, 2011). On medieval arbitral practice, see Wilhelm G. Grewe, The Epochs of International Law (trans. by Michael Byers; Walter de Gruyter, 2000), 93–104. On claims of the Holy Roman emperors to universal sovereignty, see Kenneth Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition (University of California Press, 1993), 8–37. On papal claims to various rights and powers over secular rulers, see J. A. Watt, “Spiritual and Temporal Powers,” in J. H. Burns (ed.), The Cambridge History of Political Thought c.350–c.1450, 367– 423 (Cambridge University Press, 1988); and I. S. Robinson, “Church and Papacy,” in that same work, 252–305. See also Walter Ullmann, A History of Political Thought in the Middle Ages (Penguin, 1965), 100–115. The standard account of the ius commune is Manlio Bellomo, The Common Legal Past of Europe, 1000–1800 (trans. by Lydia G. Cochrane; Catholic University of America Press, 1995), 55–77, 112–202. See also O. F. Robinson, T. D. Fergus, and W. M. Gordon, European Legal History: Sources and Institutions (3rd ed.; Butterworths, 2000), 107–24. On the contribution of canon law to the development of international law, see Dominique Bauer, “The Importance of Medieval Canon Law and the Scholastic Tradition for the Emergence of the Early Modern International Legal Order,” in Randall Lesaffer (ed.), Peace Treaties and International Law in European History: From the Late Middle Ages to World War One, 198–221 (Cambridge University Press, 2004); Randall Lesaffer, “The Medieval Canon Law of Contract and Early Modern Treaty Law,” 2 JHIL 178–98 (2000); and James Muldoon, “The Contribution of the Medieval Canon-Lawyers to the Formation of International Law,” 28 Traditio 483–97 (1972). On canon law in general, an excellent survey is James A. Brundage, Medieval Canon Law (Longman, 1995), especially 98–119, where public-law issues are treated. See also Robinson, Fergus, and Gordon, European Legal History, 72–90. For a fine survey of the Italian communal movement, see Lauro Martines, Power and Imagination: City-States in Renaissance Italy (Harmondsworth: Penguin, 1979), 1–21. See also J. K. Hyde, Society and Politics in Medieval Italy: The Evolution of the Civil Life, 1000–1350 (Macmillan, 1973), 38– 64, focusing on the formative period. There are some useful writings on the contributions of various individual thinkers to international legal thought. On Aquinas, see Alexander Passerin D’Entrèves, The Medieval Contribution to Political Thought (Oxford University Press, 1939), 19– 43. On

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Dante, see Andreas Osiander, Before the State: Systemic Political Change in the West from the Greeks to the French Revolution (Oxford University Press, 2007), 312–24; Ullmann, History, 189–95; and John B. Morrall, Political Thought in Medieval Times (2nd ed.; Hutchinson, 1960), 95–103. On Bartolus of Sassoferrato, see Cecil N. Sidney Woolf, Bartolus of Sassoferrato: His Position in the History of Medieval Political Thought (Cambridge University Press, 1913). On Baldus of Ubaldis, see J. P. Canning, The Political Thought of Baldus de Ubaldis (Cambridge University Press, 1987). On Marsilius of Padua, see the fine discussion in D’Entrèves, Medieval Contribution, 44– 87. Also on Marsilius, see Hyde, Society and Politics, 186–96; Morrall, Political Thought, 104–18; and Ullmann, History, 204–14. On the laws of war, M. H. Keen, The Laws of War in the Late Middle Ages (Routledge and Kegan Paul, 1965) remains the leading work. On ransom practice in particular, see Philippe Contamine, “The Growth of State Control. Practices of War 1300–1800: Ransom and Booty,” in Philippe Contamine (ed.), War and Competition between States, 163– 93 (Clarendon Press, 2000), especially 164–72. On the genesis of prize law in maritime war, R. G. Marsden, “Early Prize Jurisdiction and Prize Law in England,” 24 English Historical Review 675–97 (1909) remains valuable. Also on maritime war, see D. A. Gardiner, “Belligerent Rights on the High Seas in the Fourteenth Century,” 48 LQR 521–46. On the medieval law merchant, see Emily Kadens, “Order within Law, Variety within Custom: The Character of the Medieval Merchant Law,” 5 Chicago J. Int’l L. 39– 65 (2004); Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Harvard University Press, 1983), 339–56; and Robinson, Fergus, and Gordon, European Legal History, 91–106. See also Johnston, Historical Foundations, 296–308. For medieval developments in the law of the sea, see Percy Thomas Fenn Jr., “Origins of the Theory of Territorial Waters,” 20 AJIL 465–82 (1926).

3. New Worlds and Their Challenges Islamic approaches to international law are not so liberally written on as might be supposed. Useful starts may be made, though, by consulting Jean Allain, “Acculturation through the Middle Ages: The Islamic Law of Nations and Its Place in the History of International Law,” in Alexander Orakhelashvili (ed.), Research Handbook on the Theory and History of International Law, 394– 407 (Edward Elgar, 2011); Fatiha Sahli and Abdelmalek El Ouazzani, “Africa North of the Sahara and Arab Countries,” in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law, 385– 406 (Oxford University Press, 2012); and Dominque Gaurier, Histoire du droit international: Auteurs, doctrines et développement de l’Antiquité à l’aube de la période contemporaine (Presses universitaires de Rennes, 2005), 133– 42. Especially useful is the introduction to Majid Khadduri (ed. and trans.), The Islamic Law of Nations: Shaybani’s Siyar (Johns Hopkins University Press, 1966), 1–70. Christoph A. Stumpf, “Christian and Islamic Traditions of Public International Law,” 7 JHIL 69–80 (2005) is a very brief overview but ser viceable as an introduction.

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For a general survey of the Islamic perspective on international law (though with little attention to its historical development), see Ahmed Rechid, “L’Islam et le droit des gens,” 60 RdC 371–506 (1937). For a more recent treatment, in English, see Majid Khadduri, War and Peace in the Law of Islam (Johns Hopkins University Press, 1955). On freedom of trade in Islamic law, see Haniff Ahamat, “The Position of Siyar on Free Trade: A Historico-Legal Analysis,” 12 JHIL 307–27 (2010). On the laws of war, see John Kelsay, “Al-Shaybani and the Islamic Law of War,” 2 J. Military Ethics 63–75 (2003). For a thorough treatment of banditry, insurgency, and various forms of internal strife in Islamic law, see Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press, 2001). On the all-too-fashionable subject of jihad, an indispensable source is Reuven Firestone, Jihad: The Origin of Holy War in Islam (Oxford University Press, 1999). A more wide-ranging treatment in terms of time coverage, bringing the subject up to the present day, is Richard Bonney, Jihad: From Qur’an to Bin Laden (Palgrave Macmillan, 2004). Also highly useful is Patricia Crone, God’s Rule: Government and Islam (Columbia University Press, 2004), 362–85. In addition, see Rudolph Peters, Islam and Colonialism: The Doctrine of Jihad in Modern History (Mouton, 1979). On the significance and impact of Innocent IV for the formation of natural law attitudes toward pagan and infidel rulers, an excellent source is James Muldoon, Popes, Lawyers, and Infidels: The Church and the Non-Christian World 1250–1550 (Liverpool University Press, 1970), 29– 48. A general history of the Crusades that devotes appropriate attention to legal issues is Christopher Tyerman, God’s War: A New History of the Crusades (Penguin, 2006). Specifically on the application of just-war doctrine to crusading, see Frederick H. Russell, The Just War in the Middle Ages (Cambridge University Press, 1975), 195–212. On the role of canon law in crusading, see James A. Brundage, Medieval Canon Law and the Crusader (University of Wisconsin Press, 1969). For the leading work on European attempts to implement and enforce trading bans against Muslims, see Eliyahu Ashtor, Levant Trade in the Later Middle Ages (Princeton University Press, 1983), 17–63. On the litigation between the Teutonic Knights and the Polish-Lithuanian Kingdom at the Council of Constance, see Muldoon, Popes, Lawyers, and Infidels, 107–19; Eric Christiansen, The Northern Crusades (Penguin, 1980), 227– 41; and Norman Housley, The Later Crusades, 1274–1580: From Lyons to Alcazar (Oxford University Press, 1992), 358– 65. On Vladimiri in par ticu lar, see C. H. Alexandrowicz, “Paulus Vladimiri and the Development of the Doctrine of Coexistence of Christian and NonChristian Countries,” 39 BYBIL 441– 48 (1963). Imperialism is one of the most elusive of subjects—at the same time, so important and widespread but also covered only patchily in scholarly writing. For useful general works on the subject, see Richard Kroeber, Empire (Cambridge University Press, 1961); and Anthony Pagden, Peoples and Empires: Europeans and the Rest of the World, from Antiquity to the Present (Phoenix Press, 2001). On acquisition of colonial territory, see generally Andrew Fitzmaurice, “Discovery, Conquest, and Occupation of

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Territory,” in Fassbender and Peters (eds.), Oxford Handbook, 840– 61. For an important discussion of the Roman-law backdrop to the New World practices and debates, see Lauren Benton and Benjamin Straumann, “Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice,” 28 Law and History Review 1–38 (2010). For fascinating accounts of ceremonies of possession, see Arthur S. Keller, Oliver J. Lissitzyn, and Frederick J. Mann, Creation of Rights of Sovereignty through Symbolic Acts 1400–1800 (Columbia University Press, 1938); and (more recently) Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World, 1492–1640 (Cambridge University Press, 1995). Both of these works provide country-by-country surveys of state practice. On the dispute between Spain and Portugal over legal title to the Canary Islands, the principal work is Joseph F. O’Callaghan, “Castile, Portugal, and the Canary Islands: Claims and Counterclaims, 1344–1479,” 24 Viator 287–310 (1993). See also Felipe Fernández-Armesto, Before Columbus: Exploration and Colonisation from the Mediterranean to the Atlantic, 1229–1492 (Macmillan, 1987), 153–59, 171–92, 207–12. On the nature of Spanish rights in and to the New World, see generally Anthony Pagden, Spanish Imperialism and the Political Imagination (Yale University Press, 1990), 13–36; David A. Lupher, Romans in a New World: Classical Models in SixteenthCentury Spanish America (University of Michigan Press, 2003); J. H. Parry, The Spanish Theory of Empire in the Sixteenth Century (Cambridge University Press, 1940); Muldoon, Popes, Lawyers and Infidels, 132–52; and Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (Oxford University Press, 2005). On the institution of the requerimiento, see Seed, Ceremonies of Possession, 72–94; and James Muldoon, “John Wyclif and the Rights of the Infidels: The Requerimiento Re-Examined,” 36 Americas 301–16 (1980). On the humanitarian justification for conquests, there is much of interest in Daniel Schwartz, “The Principle of the Defence of the Innocent and the Conquest of America: ‘Save Those Dragged towards Death,’ ” 9 JHIL 263–91 (2007). On the principle of res nullius (rendered, somewhat anachronistically, as terra nullius), see David Boucher, “The Law of Nations and the Doctrine of Terra Nullius,” in Olaf Asbach and Peter Schröder (eds.), War, the State and International Law in Seventeenth-Century Europe, 63–82 (Ashgate, 2010). For an instructive comparative survey of the various European empires in the New World, see Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France c. 1500–c. 1800 (Yale University Press, 1995). On the Spanish attitudes toward the Indians, see Lewis Hanke, The Spanish Struggle for Justice in the Conquest of America (University of Pennsylvania Press, 1949); Lewis Hanke, Aristotle and the American Indians: A Study in Race Prejudice in the Modern World (Hollis and Carter, 1959); and Patricia Seed, “ ‘Are These Not Also Men?’: The Indian’s Humanity and Capacity for Spanish Civilization,” 25 J. Latin Am. Stud. 629–52 (1993). On the great debate at Valladolid between Las Casas and Sepúlveda, see Lewis Hanke, All Mankind Is One: A Study of the Disputation between Bartolomé de las Casas and Juan Ginés de Sepúlveda in 1550 on the Intellectual and

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Religious Capacity of the American Indians (Northern Illinois University Press, 1974), 57–112; Hanke, Spanish Struggle, 113–32; and Lupher, Romans in a New World, 133– 49. On Sepúlveda’s case in that debate, see Ángel Losada, “The Controversy between Sepúlveda and Las Casas in the Junta of Valladolid,” in Juan Friede and Benjamin Keen (eds.), Bartolomé de Las Casas in History: Toward an Understanding of the Man and His Work, 279–306 (Northern Illinois University Press, 1971). Various individual figures from this period have been the subject of scholarly attention, and none more than Vitoria. On this seminal figure, see Martin C. Ortega, “Vitoria and the Universalist Conception of International Relations,” in Ian Clark and Iver B. Neumann (eds.), Classical Theories of International Relations, 99–119 (Macmillan, 1996); Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2007), 13–31; J. A. Fernandez-Santamaria, The State, War and Peace: Spanish Political Thought in the Renaissance 1516–1559 (Cambridge University Press, 1977), 58–119; David Kennedy, “Primitive Legal Scholarship,” 27 Harvard Int’l L. J. 1–98 (1986), 13– 40; Gustavo Gozzi, Diritti e civilità: Storia e filosofia del diritto internazionale (Il Mulino, 2010), 26–38; Muldoon, Popes, Lawyers, and Infidels, 143–50; Ramón Hernández, “The Internationalization of Francisco de Vitoria and Domingo de Soto,” 15 Fordham Int’l L. J. 1031–59 (1991), 1033– 48; and Pablo Zapatero, “Legal Imagination in Vitoria: The Power of Ideas,” 11 JHIL 221–71 (2009). For a thorough study of Juan de Solórzano Pereira, see James Muldoon, The Americas in the Spanish World Order: The Justification for Conquest in the Seventeenth Century (University of Pennsylvania Press, 1994). On José de Acosta, see Claudio M. Burgaleta, José de Acosta (1540–1600): His Life and Thought (Loyola University Press, 1999). On las Casas, the leading biography is Lawrence A. Clayton, Bartolomé de las Casas (Cambridge University Press, 2012), especially 347–76 on the debate against Sepúlveda. See also Parry, Spanish Theory, 45–56; and Hanke, All Mankind, 73–112. On Sepúlveda, see Parry, Spanish Theory, 31– 43. On Vázquez, see Camilo Barcia Trelles, “Fernando Vázquez de Menchaca (1512–1569): L’école espagnole du droit international du XVIe siècle,” 67 RdC 429–534 (1939), with attention to the issue of freedom of the seas at 494–518; and Kurt Seelmann, Die Lehre des Fernando Vázquez de Menchaca vom Dominium (Heymanns, 1979). On John Selden, see G. J. Toomer, John Selden: A Life in Scholarship (2 vols; Oxford University Press, 2009), especially vol. 1, 388– 437, concerning his stance on law of the sea; and Eric G. M. Fletcher, “John Selden (Author of Mare Clausum) and His Contribution to International Law,” 19 Grotius Soc. Trans. 1–12 (1933). On English colonization practice, a leading work is Ken MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576–1640 (Cambridge University Press, 2006). For a shorter and particularly insightful discussion, see Anthony Pagden, “Law, Colonization, Legitimation, and the European Background,” in Michael Grossberg and Christopher Tomlins (eds.), The Cambridge History of Law in America: Early America (1580–1815), vol. 1, 1–31 (Cambridge University

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Press, 2008). See also Anthony Pagden, “The Struggle for Legitimacy and the Image of Empire in the Atlantic to c. 1700,” in Nicholas Canny (ed.), The Origins of Empire: British Overseas Enterprise to the Close of the Seventeenth Century, 34–54 (Oxford University Press, 1998); and Brian Slattery, “Paper Empires: The Legal Dimensions of French and English Ventures in North America,” in John McLaren, A. R. Buck, and Nancy E. Wright (eds.), Despotic Dominion: Property Rights in British Settler Societies, 50–78 (University of British Columbia Press, 2005). On the treatment of discovery in English law and colonial practice, see Robert J. Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford University Press, 2010), especially 9–22. On legal aspects of European relations with American Indians, the leading work is Robert A. Williams Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (Oxford University Press, 1990). See also Dorothy V. Jones, License for Empire: Colonialism by Treaty in Early America (University of Chicago Press, 1982); Cynthia Van Zandt, Brothers among Nations: The Pursuit of Intercultural Alliances in Early America, 1580–1660 (Oxford University Press, 2008); and Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly (University of California Press, 1997). In comparison to the New World, there has been far less attention devoted to legal aspects of the situation in the Indian Ocean world. The leading work in the field continues to be C. H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th Centuries) (Oxford University Press (1967). See, in addition, R. P. Anand, “Maritime Practice in South-East Asia until 1600 a.d. and the Modern Law of the Sea,” 30 ICLQ 440–54 (1981). On treaty relations between European and Asian powers, see C. H. Alexandrowicz, “Treaty and Diplomatic Relations between European and South Asian Powers in the Seventeenth and Eighteenth Centuries,” 100 RdC 203–322 (1960); and, more briefly, Cornelis G. Roelofsen, “Treaties between European and Non-European Powers in Early Modern and Modern Times (16th–20th Centuries),” in Thilo Marauhn and Heinhard Steiger (eds.), Universality and Continuity in International Law, 409–17 (Eleven International, 2011). On the debate over freedom of the seas between Grotius and Freitas, see Alexandrowicz, Introduction, 41–71; and Monica Brito Vieira, “Mare Liberum vs. Mare Clausum: Grotius, Freitas, and Selden’s Debate on Dominion over the Seas,” 64 J. Hist. Ideas 361–77 (2003).

4. Putting Nature and Nations Asunder For a detailed study of the Congress of Westphalia, see Paul Sonnino, Mazarin’s Quest: The Congress of Westphalia and the Coming of the Fronde (Harvard University Press, 2008). On the substantive peace terms themselves, see Joachim Whaley, Germany and the Holy Roman Empire: From Maximilian I to the Peace of Westphalia 1493–1648 (Oxford University Press, 2012), vol. 1, 619–31. For detailed analysis from a

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wide variety of standpoints, see Heinz Duchhardt and Eva Ortlieb (eds.), Der Westfälische Friede: Diplomatie, politische Zäsur, kulturelles Umfeld, Rezeptionsgeschichte (R. Oldenbourg, 1998). See also Derek Croxton, “The Peace of Westphalia of 1648 and the Origins of Sovereignty,” 21 Int’l Hist. Rev. 569–91 (1999). For the traditional view of the Peace of Westphalia as marking the beginning of the modern state system, see Adam Watson, The Evolution of International Society (Routledge, 1992), 182–97. For more skeptical views on this point, see Stéphane Beaulac, “The Westphalian Legal Orthodoxy— Myth or Reality?” 2 JHIL 148–77 (2000); and Andreas Osiander, “Sovereignty, International Relations, and the Westphalian Myth,” 55 International Organization 251–87 (2001). On international politics in the period, see Olaf Asbach and Peter Schröder (eds.), War, the State and International Law in Seventeenth-Century Europe (Ashgate, 2010). On the significance of Machiavelli in the history of international law, see Martin Wight, Four Seminal Thinkers in International Theory: Machiavelli, Grotius, Kant, and Mazzini (Oxford University Press, 2004), 3–28; David Boucher, Political Theories of International Relations: From Thucydides to the Present (Oxford University Press, 1998), 90–113; J. R. Hale, “Machiavelli and the Self-Sufficient State,” in David Thomson (ed.), Political Ideas, 22–33 (Penguin, 1966); Frank M. Russell, Theories of International Relations (D. Appleton-Century, 1936), 119–24; and Charles Benoist, “L’influence des idées de Machiavel,” 9 RdC 127–306 (1925). On Bodin, see Torbjørn L. Knutsen, A History of International Relations Theory (2nd ed.; Manchester University Press, 1997), 58– 64; Julian H. Franklin, Jean Bodin and the Sixteenth-Century Revolution in the Methodology of Law and History (Columbia University Press, 1963); Helmut Quaritsch, “Bodins Souveränitet und das Völkerrecht,” 17 AdR 257–73 (1978); F. H. Hinsley, Sovereignty (2nd ed; Cambridge University Press, 1986), 179–86; André Gardot, “Jean Bodin: Sa place parmi les fondateurs du droit international,” 50 RdC 545–747 (1934); and J. W. Allen, A History of Political Thought in the Sixteenth Century (Methuen, 1928), 394–446. Figures more specifically active in international law have also received some attention, though sometimes less than they merit. On Pierino Belli, see Angelo Piero Sereni, The Italian Conception of International Law (Columbia University Press, 1943), 93–99. On Balthasar Ayala, see W. S. M. Knight, “Balthazar Ayala and His Work,” 3 (3rd ser.) J. Comp. Leg. and Int’l L. 220–27 (1921). Gentili has received rather more attention. See Gesina van der Molen, Alberico Gentili and the Development of International Law (S. W. Sijthoff, 1968); Benedict Kingsbury and Benjamin Straumann (eds.), The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (Oxford University Press, 2010); Sereni, Italian Conception, 64– 65, 102–17; and David Kennedy, “Primitive Legal Scholarship,” 27 Harvard Int’l L. J. 1–98 (1986), 57–76. On Vitoria’s views on customary law and the ius gentium, see Brian Tierney, “Vitoria and Suárez on Ius Gentium, Natural Law, and Custom,” in Amanda Perreau-Saussine and James Bernard Murphy (eds.), The Nature of Customary Law:

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Legal, Historical and Philosophical Perspectives, 101–24 (Cambridge University Press, 2007), 110–14. On Suárez, see Josef Soder, Francisco Suárez und das Völkerrecht: Grundgedanken zu Staat, Recht und internationalen Beziehungen (Alfred Metzner, 1973). For an older biography in English, see Joseph H. Fichter, Man of Spain: Francisco Suárez (Macmillan, 1940). See also Brian Tierney, “Vitoria and Suárez,” 114–24; Matthias LutzBachmann, “The Concept of the Normativity of Law: ‘Ius Gentium’ in the Writings of Francisco Suárez and Thomas Aquinas,” in Thilo Marauhn and Heinhard Steiger (eds.), Universality and Continuity in International Law, 235– 47 (Eleven International, 2011), 235– 42; Arthur Nussbaum, A Concise History of the Law of Nations (2nd ed.; Macmillan, 1954), 84–91; Kennedy, “Primitive Legal Scholarship,” 40–57; James Brown Scott, “Francisco Suárez: His Philosophy of Law and of Sanctions,” 22 Georgetown L. J. 405–518 (1934); and Paul Guggenheim, “Contributions à l’histoire des sources du droit des gens,” 94 RdC 1–84 (1958), 20–27. Hugo Grotius has attracted the most attention of writers of this period. To consult the leading work on Grotius’s life and thought, knowledge of Dutch is necessary. See H. J. M. Nellen, Hugo de Groot: Een Leven in Strijd om de Vrede, 1583–1645 (Amsterdam: Balans, 2007). In English, see W. S. M. Knight, The Life and Works of Hugo Grotius (Sweet and Maxwell, 1925); Edward Dumbauld, The Life and Legal Writings of Hugo Grotius (University of Oklahoma Press, 1969); and Charles S. Edwards, Hugo Grotius, the Miracle of Holland: A Study in Legal and Political Thought (Nelson-Hall, 1981). Excellent short summations of Grotius’s ideas may be found in Nussbaum, Concise History, 107–14; and Hinsley, Sovereignty, 186–93. In the Introduction to Hugo Grotius in On the Law of War and Peace (ed. by Stephen C. Neff; Cambridge University Press, 2012), xiii–xxxv, the stress is placed on Grotius as the heir to traditions of the past. Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Presses universitaires de France, 1983) also sees Grotius as a continuer of the Scholastic tradition. For Grotius as a pioneer of modern thought, see Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford University Press, 1999), 78–108. For close attention to Grotius’s role in international law and international relations, see Wight, Four Seminal Thinkers, 29– 61; Hedley Bull, Adam Roberts, and Benedict Kingsbury (eds.), Hugo Grotius and International Relations (Clarendon Press, 1990); John Murphy, “The Grotian Vision of World Order,” 76 AJIL 477–98 (1982); and Kennedy, “Primitive Legal Scholarship,” 76–95. A classic treatment of this topic is H. Lauterpacht, “The Grotian Tradition in International Law,” 23 BYIBL 1–53 (1946). For an updated consideration of the subject, see Randall Lesaffer, “The Grotian Tradition Revisited— Change and Continuity in the History of International Law,” 73 BYBIL 103–39 (2002). For contributions by a range of Japa nese scholars, see Yasuaki Onuma (ed.), A Normative Approach to War: Peace, War, and Justice in Hugo Grotius (Oxford University Press, 1993). For Grotius’s position on just wars, the leading work is

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Haggenmacher, Grotius et la doctrine de la guerre juste. See also Gustavo Gozzi, Diritti e civilità: Storia e filosofia del diritto internazionale (Il Mulino, 2010), 47–74. There is an ocean of literature on Thomas Hobbes. Of par ticu lar note from the standpoint of international relations and international law are Boucher, Political Theories, 145– 67; Jonathan Haslam, No Virtue Like Necessity: Realist Thought in International Relations since Machiavelli (Yale University Press, 2002), 50–56; Cornelia Navari, “Hobbes, the State of Nature and the Law of Nations,” in Ian Clark and Iver B. Neumann, eds.. Classical Theories of International Relations, 20– 41 (Macmillan, 1996); and Tuck, Rights of War and Peace, 109–39. For an explicit contrast between Grotius and Hobbes, see Edwin De Witt Dickinson, The Equality of States in International Law (Harvard University Press, 1920), 69–75. On the division of European international lawyers into the Grotian and the naturalist camps, see Dominque Gaurier, Histoire du droit international: Auteurs, doctrines et développement de l’Antiquité à l’aube de la période contemporaine (Presses universitaires de Rennes, 2005), 167–76. Grotius’s immediate followers have not, as yet, attracted a great deal of scholarly attention. On Rachel, see Tetsuya Toyoda, Theory and Politics of the Law of Nations : Political Bias in International Law Discourse of Seven German Court Councilors in the Seventeenth and Eighteenth Centuries (Martinus Nijhoff, 2011), 51–80. The naturalists have, so far, received greater attention than the Grotians, with Pufendorf in the clear lead. On his opposition to the concept of a voluntary law of nations, see Toyoda, Theory and Politics, 30–39; and Nussbaum, Concise History, 147– 50. For a general account of Pufendorf’s career and thought, see Leonard Krieger, The Politics of Discretion: Samuel Pufendorf and the Acceptance of Natural Law (University of Chicago Press, 1965). This contains, however, only a little about his contribution to international law (164– 69). For greater attention to this aspect of his thought, see Boucher, Political Theories, 223–54; Tuck, Rights of War and Peace, 140– 65; Walter Schiffer, The Legal Community of Mankind: A Critical Analysis of the Modern Concept of World Organization (Columbia University Press, 1954), 49– 63; and Gossi, Diritti e civilità, 78–87. Andrew Linklater, “Rationality and Obligation in the States-System: The Lessons of Pufendorf’s Law of Nations,” 9 Millennium J of Int’l Studies 215–28 (1980) analyzes Pufendorf from a neo-Kantian perspective. On the significance of Spinoza for international law, see H. Lauterpacht, “Spinoza and International Law,” 8 BYBIL 89–107 (1927). On the relationship of Rousseau to Hobbes, see Tuck, Rights of War and Peace, 197–207. On Samuel Cocceji, see Toyoda, Theory and Politics, 135– 48.

5. Of Spiders and Bees For a general overview of international law in the period, see Heinz Duchhardt, “From the Peace of Westphalia to the Congress of Vienna,” in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law, 628–53

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(Oxford University Press, 2012). Emmanuelle Jouannet, The Liberal-Welfarist Law of Nations: A History of International Law (trans. by Christopher Sutcliffe; Cambridge University Press, 2012), an extended essay rather than a narrative history, identifies this period as a time when what she calls “the law of nations of the Moderns” began to focus on the promotion of well-being and happiness (i.e., on “perfection”) in addition to its prior focus on the rights and freedoms of states. Several areas of state practice have received at least a modicum of attention. For an excellent brief overview of international law and diplomacy in the seventeenth century, see George Clark, The Seventeenth Century (2nd ed.; Oxford University Press, 1947), 124–39. On legal aspects of balance-of-power considerations, see Alfred Vagts and Detlev F. Vagts, “The Balance of Power in International Law: The History of an Idea,” 73 AJIL 555–80 (1979). On legal aspects of peace-treaty practice, see Randall Lesaffer, “Paix et guerre dans les grands traités du dix-huitième siècle,” 7 JHIL 25–41 (2005). On the development of the laws of war, see Geoffrey Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflicts (Weidenfeld and Nicolson, 1980). See also Stephen C. Neff, War and the Law of Nations: A General History (Cambridge University Press, 2005), 83–158. On neutrality, see Stephen C. Neff, The Rights and Duties of Neutrals: A General History (Manchester University Press, 2000), 27– 60. Richard Pares, Colonial Blockade and Neutral Rights 1739–1763 (Cambridge University Press, 1938) contains much valuable information on privateering (1–76) and the operation of prize courts (77–147). For surveys of the various peace plans that were put forward (without success) during the period, see Sylvester John Hemleben, Plans for World Peace through Six Centuries (University of Chicago Press, 1943), 21–85. Several aspects of treaty making during the period have received scholarly treatment. On the development of neutrality law by means of treaties of amity and commerce, see Neff, Rights and Duties of Neutrals, 27–38. On the development of mostfavored-nation agreements, see Joseph Koulischer, “Les traités de commerce et la clause de la nation la plus favorisée du XVIe au XVIIIe siècle,” 6 Revue d’Histoire Moderne 3–29 (1931). On the capitulation agreements made by various European states with the Ottoman Empire, see Maurits H. van den Boogert, The Capitulations and the Ottoman Legal System: Qadis, Consuls, and Beraths in the 18th Century (Brill, 2005); and, more briefly, Umut Özsu, “Ottoman Empire,” in Fassbender and Peters (eds.), Oxford Handbook, 429– 48. On peace treaties between European states and the Ottoman Empire, see Karl-Heinz Ziegler, “The Peace Treaties of the Ottoman Empire with European Christian Powers,” in Randall Lesaffer (ed.), Peace Treaties and International Law in European History: From the Late Middle Ages to World War One, 338– 64 (Cambridge University Press, 2004). For an informative discussion of developments in the law of the sea, see Wyndham L. Walker, “Territorial Waters: The Cannon Shot Rule,” 22 BYBIL 210–31 (1945). Some literature exists dealing with specific international legal disputes of the period. Notable in this respect is Ernest Satow, The Silesian Loan and Frederick the Great (Clarendon Press, 1915).

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Various writers in the field have attracted the attention of scholars. There is a vast literature on Leibniz—scarcely surprising for such a polymath. On his contribution to international law, see Janne Elisabeth Nijman, The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law (T. M. C. Asser Press, 2004), 58–80; and Tetsuya Toyoda, Theory and Politics of the Law of Nations: Political Bias in International Law Discourse of Seven German Court Councilors in the Seventeenth and Eighteenth Centuries (Martinus Nijhoff, 2011), 81–101. Both of these focus on his views on state sovereignty and international personality. See also J. Walter Jones, “Leibniz as International Lawyer,” 22 BYBIL 1–10 (1945); and Paul Schrecker, “Leibniz’s Principles of International Justice,” 7 J. Hist. Ideas 484–98 (1946). Wolff has received comparatively little attention, especially in English—a reflection of his being overshadowed by a towering predecessor (Leibniz) and successor (Kant). For an overview of his philosophy generally, see Lewis White Beck, Early German Philosophy: Kant and His Predecessors (Harvard University Press, 1969), 256–75. See also Leonard Krieger, The German Idea of Freedom: History of a Political Tradition (University of Chicago Press, 1957), 66–71. On Wolff ’s views on international relations specifically, see Walter Schiffer, The Legal Community of Mankind: A Critical Analysis of the Modern Concept of World Organization (Columbia University Press, 1954), 63–78; and Arthur Nussbaum, A Concise History of the Law of Nations (2nd ed.; Macmillan, 1954), 150–56. Kant, even more than Leibniz, has been the subject of a torrent of literature. For an excellent overview of his moral philosophy in general, see J. B. Schneewind, “Autonomy, Obligation, and Virtue: An Overview of Kant’s Moral Philosophy,” in Paul Guyer (ed.), The Cambridge Companion to Kant, 309– 41 (Cambridge University Press, 1992). For the minute fraction of the writing on Kant that is particularly relevant to international law, see Howard Willims and Ken Booth, “Kant: Theorist beyond Limits,” in Ian Clark and Iver B. Neumann (eds.), Classical Theories of International Relations, 71–98 (Macmillan, 1996); Georg Cavallar, Kant and the Theory and Practice of International Right (University of Wales Press, 1999); Charles Covell, Kant and the Law of Peace: A Study in the Philosophy of International Law and International Relations (Palgrave, 1998); Gustavo Gozzi, Diritti e civilità: Storia e filosofia del diritto internazionale (Il Mulino, 2010), 97–130; Georg Cavallar, Imperfect Cosmopolis: Studies in the History of International Legal Theory and Cosmopolitan Ideas (University of Wales Press, 2011), 64–84; and Martin Wight, Four Seminal Thinkers in International Theory: Machiavelli, Grotius, Kant, and Mazzini (Oxford University Press, 2004), 63–87. On the relation between Kant and Hobbes, see Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford University Press, 1999), 207–25. On Kant’s proposal for perpetual peace in par ticu lar, see Hemleben, Plans for World Peace, 87–95. Other writers have, so far, received much less attention. On Bynkershoek, see Kinji Akashi, Cornelius van Bynkershoek: His Role in the History of International Law (Kluwer, 1998). Nussbaum, Concise History, gives brief but useful accounts of the contri-

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butions of Zouche (164– 67), Rachel (172–74), and Moser (175–79). Also on Moser, see Cavallar, Imperfect Cosmopolis, 93–96; Mack Walker, Johann Jakob Moser and the Holy Roman Empire of the German Nation (University of North Carolina Press, 1981), 337– 42; Toyoda, Theory and Politics, 149– 60; and Albert Leschhorn, Johann Jakob Moser und die Eidgenossenschaft (Juris, 1965), 44– 49. Martens is outstandingly neglected. But see Nussbaum, Concise History, 179–85; and Martti Koskenniemi, “On International Legal Positivism— Georg Friedrich von Martens’ (1756–1821) Influence on International Law” (Göttingen, 2005; available on the internet, at www.helsinki.fi/ eci/Publications/Koskenniemi). Vattel has only very recently begun to receive a degree of scholarly attention comparable to the influence that he had. For important steps in this direction, see Emmanuelle Jouannet, L’émergence doctrinale du droit international classique: Emer de Vattel et l’école de droit de la nature et des gens (Pedone, 1998); and Vincent Chetail and Peter Haggenmacher (eds.), Vattel’s International Law in a XXIst Century Perspective (Martinus Nijhoff, 2011). For an older contribution that can still be read with great profit, see Charles G. Fenwick, “The Authority of Vattel,” 7 Am. Pol. Sci. Rev. 395–410 (1913) and 8 Am. Pol. Sci. Rev. 375–92 (1914). See also Andrew Hurrell, “Vattel: Pluralism and Its Limits,” in Clark and Neumann (eds.), Classical Theories, 233–55. Isaac Nakhimovsky, “Vattel’s Theory of the International Order: Commerce and the Balance of Power in the Law of Nations,” 33 History of European Ideas 157–73 (2007) stresses Vattel’s intellectual debt to Wolff. For a brief survey of Vattel’s overall contribution to international law, see Nussbaum, Concise History, 156– 64. On Vattel’s views on sovereignty issues, see Toyoda Tesuya, “La doctrine vattelienne de l’égalité souveraine dans le context neuchâtelois,” 11 JHIL 103–24 (2009); and Toyoda, Theory and Politics, 161–90. On Vattel and neutrality, see Stefan Oeter, “Neutrality and Alliances,” in Chetail and Haggenmacher (eds.), Vattel’s International Law, 336–47. On Vattel and the law of war, see Stephen C. Neff, “Vattel and the Laws of War: A Tale of Three Circles,” in Chetail and Haggenmacher (eds.), Vattel’s International Law, 317–33. On his impact in the United States in the early postindependence period, see Brian Richardson, “The Use of Vattel in the American Law of Nations,” 106 AJIL 547–71 (2012), 548– 60. On international law issues and debates in the newly emerged United States, see Daniel G. Lang, Foreign Policy in the Early Republic: The Law of Nations and the Balance of Power (Louisiana State University Press, 1985). In the area of neutrality, the new country was especially active. See Charles S. Hyneman, The First American Neutrality: A Study of the American Understanding of Neutral Obligations during the Years 1792 to 1815 (University of Illinois Press, 1934); and Charles Marion Thomas, American Neutrality in 1793: A Study in Cabinet Government (Columbia University Press, 1931). For detailed information on legal disputes between the United States and Britain leading up to the War of 1812, see Bradford Perkins, Prologue to War: England and the United States 1805–1812 (University of California Press, 1961). On the French Revolutionary period, see Marc Belissa, Fraternité universelle et intéret national (1713–1795): Les cosmopolitiques du droit des gens (Kimé, 1998). On the

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French Declaration of Peace of 1790, see David A. Bell, The First Total War: Napoleon’s Europe and the Birth of Modern Warfare (Bloomsbury, 2007), 87–109; and Belissa, Fraternité universelle, at 179–97. On the Abbé Grégoire’s codification plan, see Belissa, Fraternité universelle, 365–77, 419–20. On legal justifications for the wars of that period, an invaluable study is T. C. W. Blanning, The Origins of the French Revolutionary Wars (Longman, 1986). See also Patricia Chastain Howe, Foreign Policy and the French Revolution: Charles-Francois Dumouriez, Pierre Lebrun, and the Belgian Plan, 1789–1793 (Palgrave Macmillan, 2008). On neutrality issues during the wars, see W. Alison Phillips and Arthur H. Reede, Neutrality: Its History, Economics and Law. The Napoleonic Period (Columbia University Press, 1936). On the contribution of Jeremy Bentham to international law, see Mark W. Janis, “Jeremy Bentham and the Fashioning of ‘International Law,’ ” 78 AJIL 405–18 (1984); and Georg Schwarzenberger, “Bentham’s Contribution to International Law and Organisation,” in George W. Keeton and Georg Schwarzenberger (eds.), Jeremy Bentham and the Law: A Symposium (Stevens and Sons, 1948) , 152–84. On Bentham’s plan for world peace, see Hemleben, Plans for World Peace, 82–87. For an admirable study of William Scott’s legal career, see generally Henry Bourguignon, Sir William Scott, Lord Stowell: Judge of the High Court of Admiralty (Cambridge University Press, 1987), especially 115–242, where his contributions to prize law are discussed.

6. Breaking with the Past On international law in the nineteenth century, see generally Alexander Orakhelashvili, “The 19th-Century Life of International Law,” in Alexander Orakhelashvili (ed.), Research Handbook on the Theory and History of International Law, 441–55 (Edward Elgar, 2011); Miloš Vec, “From the Congress of Vienna to the Paris Peace Treaties of 1919,” in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law, 654–78 (Oxford University Press, 2012); David Kennedy, “International Law and the Nineteenth Century: History of an Illusion,” 65 Nordic J. Int’l L. 385– 420 (1996); and Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge University Press, 2001). On international law in Britain in the period, see Casper Sylvest, “International Law in Nineteenth-Century Britain,” 75 BYBIL 9–70 (2004). On positivism in general, see Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2007), 40–52. As usual, there is uneven coverage of individual writers. Austin, for example, has received surprisingly little detailed attention, considering his central role in the development of positivism in law. See W. L. Morison, John Austin (Edward Arnold, 1982), a critical work that gives brief attention to Austin’s views on international law. See also Wilfrid E. Rumble, Doing Austin Justice: The Reception of John Austin’s Philosophy of Law in Nineteenth-Century England (Continuum, 2005); Wilfried Löwenhaupt, Politischer Utilitarismus und bürgerliches Rechtsdenken: John Austin (1790–1859) und die Philoso-

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phie des positiven Rechts (Duncker und Humblot, 1972); and C. E. Merriam Jr., History of the Theory of Sovereignty since Rousseau (Columbia University Press, 1900), 130–57. On the challenge posed by Austin to international law, see Michael Lobban, “English Approaches to International Law in the Nineteenth Century,” in Matthew D. R. Craven, M. Fitzmaurice, and Maria Vogiatzi (eds.), Time, History and International Law, 65–90 (Martinus Nijhoff, 2007), 78–88. On Wheaton, see Mark W. Janis, The American Tradition of International Law: Great Expectations 1789–1914 (Oxford University Press, 2004), 40– 48; and Randall Lesaffer, “Roman Law and the Early Historiography of International Law: Ward, Wheaton, Hosack and Walker,” in Thilo Marauhn and Heinhard Steiger (eds.), Universality and Continuity in International Law, 149–84 (Eleven International, 2011), 160– 69, who firmly presents him as a middle-ground or transitional figure rather than as a true positivist. Heffter has been seriously neglected. Ingo J. Hueck, “Pragmatism, Positivism and Hegelianism in the Nineteenth Century: August Wilhelm Heffter’s Notion of Public International Law,” in Michael Stolleis and Masaharu Yanagihara (eds.), East Asian and European Perspectives on International Law, 41–55 (Nomos, 2004) actually contains only a small amount of material on him. A. Pearce Higgins, “La contribution de quatre grands juristes britaniques au droit international,” 40 RdC 1–85 (1932) is a very useful work, dealing with Westlake (23– 43) and Hall (44– 65). Oppenheim is unusual in being lavishly attended to. See Walter Schiffer, The Legal Community of Mankind: A Critical Analysis of the Modern Concept of World Organization (Columbia University Press, 1954), 79–96; Mathis Schmoeckel, “Lassa Oppenheim (1858–1919),” in Jack Beatson and Reinhard Zimmermann (eds.), Jurists Uprooted: German-Speaking Émigré Lawyers in Twentieth-Century Britain, 538–99 (Oxford University Press, 2004); Benedict Kingsbury, “Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim’s Positive International Law,” in Stolleis and Yanagihara (eds.), East Asian and European Perspectives, 139–77; Amanda Perreau-Saussine, “A Case Study on Jurisprudence as a Source of International Law: Oppenheim’s Influence,” in Craven, Fitzmaurice, and Vogiatzi (eds.), Time, History and International Law, 91–117; and Mathias Schmoeckel, “The Story of a Success: Lassa Oppenheim and His ‘International Law’,” in Stolleis and Yanagihara (eds.), East Asian and European Perspectives, 57–138. Anzilotti has also received a reasonable degree of attention. See Angelo Piero Sereni, The Italian Conception of International Law (Columbia University Press, 1943), 213– 44; and Giorgio Gaja, “Positivism and Dualism in Dionisio Anzilotti,” 3 EJIL 123–38 (1992). On his seminal contribution to the law of state responsibility in par ticu lar, see Pierre-Marie Dupuy, “Dionisio Anzilotti and the Law of International Responsibility of States,” 3 EJIL 139–48 (1992). The major treatment of Triepel is Ulrich M. Gassner, Heinrich Triepel: Leben und Werk (Duncker und Humblot, 1999). See also Alexander Hollerbach, “Zu Leben und Werk Heinrich Triepels,” 91 Archiv für öffentlichen Rechts 417– 41, 551–57 (1966). In English, there is a very short, but excellent,

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account of his contribution in Jochen von Bernstorff and Thomas Dunlap, The Public International Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge University Press, 2010), 38– 42. On Hegel, there is an astonishing quantity of writing. Concerning his relevance for international law, the best source is William E. Conklin, Hegel’s Laws: The Legitimacy of a Modern Legal Order (Stanford University Press, 2008), 270–98. See also Howard Williams, International Relations in Political Theory (Open University Press, 1992), 92–104; Andrew Linklater, “Hegel, the State and International Relations,” in Ian Clark and Iver B. Neumann (eds.), Classical Theories of International Relations, 193–209 (Macmillan, 1996); and David Boucher, Political Theories of International Relations: From Thucydides to the Present (Oxford University Press, 1998), 330–53. For Hegel’s views on war, see Christopher Coker, Barbarous Philosophers: Reflections on the Nature of War from Heraclitus to Heisenberg (Hurst, 2010), 193–206. Gierke is another figure who is reasonably well known outside of the Germanspeaking world (though far less than Hegel). On his relevance to international law, see John D. Lewis, The Genossenschaft-Theory of Otto von Gierke: A Study in Political Thought (University of Wisconsin Studies in the Social Sciences and History, 1935). For a shorter, but excellent, exposition of his ideas, see David Runciman, Pluralism and the Personality of the State (Cambridge University Press, 1997), 34– 63. On his organic theory of the state, see Merriam, History of the Theory of Sovereignty, 114–20. For a capsule summary, see Wolfgang Friedmann, Legal Theory (5th ed.; Stevens and Sons, 1967), 171–75. On the thesis of the real personality of the state, see the Introduction, by George H. Sabine and Walter J. Shepard, to H. Krabbe, The Modern Idea of the State (Martinus Nijhoff, 1922), xi–lxxxi. On Bergbohm, see Lauri Mälksoo, “The Science of International Law and the Concept of Politics: The Arguments and Lives of the International Law Professors at the University of Dorpat/Iur’ev/Tartu 1855–1985,” 76 BYBIL 383–501 (2005), 419–37; and B. Kastner, “Karl Magnus Bergbohm: Werk und Wirkung,” 84 Archiv für Rechts- und Soziophilosophie 232– 49 (1998). Lasson is less well covered, but for a short account of his ideas, see Rupert Emerson, State and Sovereignty in Modern Germany (Yale University Press, 1928), 186–89. For a lucid and succinct account of the German Rechtsstaat concept, see Leonard Krieger, The German Idea of Freedom: History of a Political Tradition (University of Chicago Press, 1957), 252– 61. On Jellinek and his autolimitation thesis, see Emerson, State and Sovereignty, 60–73; Koskenniemi, Gentle Civilizer of Nations, 198–206; and Bernstorff and Dunlap, Public International Law Theory, 26–38. On Franz Liszt, see Florian Herrmann, Das Standardwerk: Franz von Liszt und das Völkerrecht (Nomos, 2001). For an exposition of the positivist synthesis, see Sereni, Italian Conception, 206–50. For an excellent, and more succinct, summation of it, see Lassa Oppenheim, “The Science of International Law: Its Task and Method,” 2 AJIL 313–56 (1908). On the positivist view of war and peace, see Stephen C. Neff, War and the Law of Nations: A General His-

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tory (Cambridge University Press, 2005), 167–214. For a general account of the Caroline affair, including the legal disputes to which it gave rise, see Kenneth R. Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-American-Canadian Relations, 1837–1842 (University of Alabama Press, 1989); Reginald C. Stuart, United States Expansionism and British North America 1775–1871 (University of North Carolina Press, 1988), 126– 47; and Martin A. Rogoff and Edward Collins Jr, “The Caroline Incident and the Development of International Law,” 16 Brooklyn J. Int’l L. 493–527 (1990). For a broad critique of positivism, see generally H. Lauterpacht, Private Law Sources and Analogies of International Law: With Special Reference to International Arbitration (Longmans, Green, 1927).

7. Dissident Voices Various writers continued in the dualistic tradition of Grotius, accepting both natural law and positive law as valid components of international law. On the career of Andrés Bello, see Iván Jaksic, Andrés Bello: Scholarship and Nation-Building in NineteenthCentury Latin America (Cambridge University Press, 2001). On his contribution to international relations and international law, see Louise Fawcett, “Between West and Non-West: Latin American Contributions to International Thought,” 34 Int’l Hist. Rev. 679–704 (2012); and Frank Griffith Dawson, “The Influence of Andrés Bello on Latin-American Perceptions of Non-Intervention and State Responsibility,” 57 BYBIL 253–315 (1986). Very little writing is available on Kaltenborn. But see Ludwik Ehrlich, “The Development of International Law as a Science,” 105 RdC 173–265 (1962),” 246– 48; and Jochen von Bernstorff and Thomas Dunlap, The Public International Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge University Press, 2010), 18–21. There is remarkably little writing about Bluntschli, considering how great his impact was, outside the German-speaking world as well as within it. See, however, Betsy Röben, Johann Caspar Bluntschli, Francis Lieber und das modern Völkerrecht 1861– 1881 (Nomos, 2003), which contains a biographical section on Bluntschli, 40–81. See also Betsy Baker Röben, “The Method behind Bluntschli’s Modern International Law,” 4 JHIL 249–92 (2002). For much briefer treatments in English, see Georg Cavallar, Imperfect Cosmopolis: Studies in the History of International Legal Theory and Cosmopolitan Ideas (University of Wales Press, 2011), 117–21; and C. E. Merriam Jr., History of the Theory of Sovereignty since Rousseau (Columbia University Press, 1900), 99–103. On Lorimer, too, there is little writing. But see A. Pearce Higgins, “La contribution de quatre grands juristes britaniques au droit international,” 40 RdC 1–85 (1932), 5–22; and A. H. Campbell, “James Lorimer: A Natural Lawyer of the Nineteenth Century,” 39 Grotius Soc. Trans. 211–29 (1953). Regarding liberalism, Adam Smith’s contribution to international affairs is the subject of Andrew Wyatt Walter, “Adam Smith and the Liberal Tradition in International Relations,” in Ian Clark and Iver B. Neumann (eds.), Classical Theories of International

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Relations, 142–72 (Macmillan, 1996). On the relation of international law to liberal political economy, see generally Stephen C. Neff, Friends but No Allies: Economic Liberalism and the Law of Nations (Columbia University Press, 1990); and, more briefly, Walter Schiffer, The Legal Community of Mankind: A Critical Analysis of the Modern Concept of World Organization (Columbia University Press, 1954), 118–31. On Carlos Tobar, see Richard V. Salisbury, “Carlos R. Tobar,” in Frank W. Thackeray and John E. Findling (eds.), Statesmen Who Changed the World: A Bio-Bibliographical Dictionary of Diplomacy, 545–53 (Greenwood Press, 1993). On the Tobar Doctrine, see Charles L. Stansifer, “Application of the Tobar Doctrine to Central America,” 23 Americas 251– 72 (1967). For a brief account of nationality theory generally, see John Breuilly, “On the Principle of Nationality,” in Gareth Stedman Jones and Gregory Claeys (eds.), The Cambridge History of Nineteenth-Century Political Thought, 77–109 (Cambridge University Press, 2011); Schiffer, Legal Community of Mankind, 131– 41; and Frank M. Russell, Theories of International Relations (D. Appleton-Century, 1936), 204–32. On Mazzini, see generally C. A. Bayly, and E. F. Biagini (eds.), Giuseppe Mazzini and the Globalization of Democratic Nationalism, 1830–1920 (Oxford University Press, 2008); and Martin Wight, Four Seminal Thinkers in International Theory: Machiavelli, Grotius, Kant, and Mazzini (Oxford University Press, 2004), 89–119. On the nationality school of international law, a fine account may be found in Angelo Piero Sereni, The Italian Conception of International Law (Columbia University Press, 1943), 155–78. On Mancini specifically, there is a sad dearth of writing. But see Sereni, Italian Conception, 160– 66. On solidarism, there is an excellent account of its genesis in the French political context in Theodore Zeldin, France 1848–1945: Politics and Anger (Oxford University Press, 1979), 276–318. On Saint-Simon, see Frank Manuel, The New World of Henri Saint-Simon (Harvard University Press, 1956). For his ideas on international relations in par ticu lar, see Georg C. Iggers, The Cult of Authority: The Political Philosophy of the Saint-Simonians: A Chapter in the Intellectual History of Totalitarianism (Martinus Nijhoff, 1958), 119–34. On his plan for European union, see Derek Heater, The Idea of European Unity (Leicester University Press, 1992), 97–108. On Alberdi, there is all too little writing. But see H. B. Jacobini, A Study of the Philosophy of International Law as Seen in the Works of Latin American Writers (Martinus Nijhoff, 1954), 67–72. For an account of the life and career of Lorenz von Stein, see the Introduction to Lorenz von Stein, The History of the Social Movement in France, 1789–1950 (ed. and trans. by Kaethe Mengelberg; Bedminster Press, 1964), 3–39. Duguit is better covered than most lawyers in this area, although it should be borne in mind that he was not an international lawyer. For fine short accounts of his ideas, see Wolfgang Friedmann, Legal Theory (5th ed.; Stevens and Sons, 1967), 164–71; Julius Stone, Human Law and Human Justice (Stanford University Press, 1965), 159– 66; and Hymen Ezra Cohen, Recent Theories of Sovereignty (University of Chicago Press, 1937), 38–56. For his relevance to international law, see Janne Elisabeth Nijman, The

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Concept of International Legal Personality: An Inquiry into the History and Theory of International Law (T. M. C. Asser Press, 2004), 208–16. Álvarez was the subject of several articles in vol. 19 of the Leiden Journal of International Law, including Liliana Obregón, “Noted for Dissent: The International Life of Alejandro Álvarez,” 19 Leiden J. Int’l L. 983–1016 (2006). For Álvarez as a champion of the idea of a distinctively American (i.e., Western Hemispheric) international law, see Carl Landauer, “A Latin American in Paris: Alejandro Álvarez’s Le droit international américain,” 19 Leiden J. Int’l L. 957–81 (2006); and Jorge L. Esquirol, “Alejandro Álvarez’s Latin American Law: A Question of Identity,” 19 Leiden J. Int’l L. 931–56 (2006).

8. In Full Flower On the globalization of international law in the nineteenth century, see Douglas M. Johnston, The Historical Foundations of World Order: The Tower and the Arena (Martinus Nijhoff, 2008), 507– 687. See also Hedley Bull and Adam Watson (eds.), The Expansion of International Society (Clarendon Press, 1984); and Antonio Truyol y Serra, “L’expansion de la société internationale aux XIXe et XXe siècles,” 116 RdC 89–179 (1965). Regarding the concept of civilized and uncivilized states, see Slim Laghmani, Histoire du droit des gens du jus gentium au jus publicum europaeum (Pedone, 2004), 185–205; Gerritt W. Gong, The Standard of ‘Civilisation’ in International Society (Clarendon Press, 1984); Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2007), 52– 65; and Liliana Obregón Tarazona, “The Civilized and the Uncivilized,” in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law, 917–39 (Oxford University Press, 2012). Legal aspects of nineteenth-century imperialism are remarkably understudied. For the best available modern surveys, see Anghie, Imperialism, 65–97; and Johnston, Historical Foundations, 549– 611. See also A. P. Thornton, Doctrines of Imperialism (John Wiley and Sons, 1965). Brett Bowden, The Empire of Civilization: The Evolution of an Imperial Idea (University of Chicago Press, 2009) gives some attention to international legal writing. For a classic work on the subject that is still very useful, see M. F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law and Practice Relating to Colonial Expansion (Longmans, Green, 1926). On imperialism in Africa, see Hedley Bull, “European States and African Political Communities,” in Bull and Watson (eds.), Expansion of International Society, 99–114. On “quasi-sovereignty” generally, see Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires 1400–1900 (Cambridge University Press, 2010), 236–50. A source of much information is Edwin De Witt Dickinson, The Equality of States in International Law (Harvard University Press, 1920), who discusses protected states (240– 47) and suzerainty (236– 40), with many examples provided. On protectorates, see also James Crawford, The Creation of States in International Law (2nd ed.; Clarendon Press, 2006), 286–320; and Anghie, Imperialism,

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87–90. On spheres of influence, see John Westlake, International Law (vol. 1, 2nd ed.; Cambridge University Press, 1910), 130–35; and Geddes W. Rutherford, “Spheres of Influence: An Aspect of Semi-Sovereignty,” 20 AJIL 300–25 (1926). On China’s entry into contact with the Western powers in the nineteenth century, the leading work is Rune Svarverud, International Law as World Order in Late Imperial China: Translation, Reception and Discourse, 1847–1911 (Brill, 2007). See also Immanuel C. Y. Hsü, China’s Entrance into the Family of Nations: The Diplomatic Phase 1858–1880 (Harvard University Press, 1960); Johnston, Historical Foundations, 578–90; Yongjin Zhang, “China’s Entry into International Society: Beyond the Standard of ‘Civilisation,’ ” 17 Rev. Int’l Stud. 3–16 (1991); Laghmani, Histoire du droit des gens, 209–15; and Gerrit W. Gong, “China’s Entry into International Society,” in Bull and Watson (eds), Expansion of International Society, 171–83. On its reception of international law in par ticu lar, see Shin Kawashima, “China,” in Fassbender and Peters (eds.), Oxford Handbook, 451–74; and Wang Tieya, “International Law in China: Historical and Contemporary Perspectives,” 221 RdC 195–309 (1990), 226–37. On the persistence of the Chinese tribute system into the nineteenth century, see Mark Mancall, “The Ch’ing Tribute System: An Interpretive Essay,” in John King Fairbank (ed.), The Chinese World Order: Traditional China’s Foreign Relations, 63–89 (Harvard University Press, 1968). The Japa nese reception of international law is somewhat better covered than its Chinese counterpart. See Kinji Akashi, “Japa nese ‘Acceptance’ of the European Law of Nations: A Brief History of International Law in Japan c. 1853–1900,” in Michael Stolleis and Masaharu Yanagihara (eds.), East Asian and European Perspectives on International Law, 1–21 (Nomos, 2004); Hidemi Suganami, “Japan’s Entry into International Society,” in Bull and Watson (eds.), Expansion of International Society, 185– 99; Gong, Standard of ‘Civilisation,’ 164–200; and John Peter Stern, The Japanese Interpretation of the ‘Law of Nations,’ 1854–1874 (Princeton University Press, 1979). On Nishi Amane in par ticu lar, see Thomas R. H. Havens, Nishi Amane and Modern Japanese Thought (Princeton University Press, 1970); and Roger F. Hackett, “Nishi Amane—A Tokugawa-Meiji Bureaucrat,” 18 J. Asian Stud. 213–25 (1959). Extraterritoriality is a largely forgotten and little studied subject. On the Chinese experience, see William L. Tung, China and the Foreign Powers: The Impact of and Reaction to Unequal Treaties (Oceana, 1970); and Westel W. Willoughby, Foreign Rights and Interests in China (2nd ed.; Johns Hopkins University Press, 1927). On extraterritoriality in Japan, see F. C. Jones, Extraterritoriality in Japan and the Diplomatic Relations Resulting in Its Abolition (Yale University Press, 1931); and Richard T. Chang, The Justice of Western Consular Courts in Nineteenth-Century Japan (Greenwood Press, 1984). On British consular courts in the Ottoman Empire, see Johannes Berchtold, Reich un Gerechtigkeit in der Konsulargerichtsbarkeit: Britische Extraterritorialität im Osmanischen Reich 1825–1914 (R. Oldenbourg, 2009). On international law in Latin America, there is a crying need for fuller study. For a good start, see H. B. Jacobini, A Study of the Philosophy of International Law as Seen in

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the Works of Latin American Writers (Martinus Nijhoff, 1954). Included in this work is the debate over a distinctive American international law, 121–36. Another greatly neglected topic is the professionalization of international law in the nineteenth century. On the founding of the Institute of International Law, see Romain Yakemtchouk, “Les origins de l’Institut de Droit International,” 77 RGDIP 373– 423 (1973). On the history of the American Society of International Law, see Frederic Kirgis, The American Society of International Law’s First Century 1906–2006 (Martinus Nijhoff, 2006). Yet another understudied subject is the history of international-law teaching. For a beginning, see Manfred Lachs, The Teacher in International Law (Teachings and Teaching) (Martinus Nijhoff, 1982). For a welcome study of the topic in one country, see R. St. J. Macdonald, “An Historical Introduction to the Teaching of International Law in Canada,” 12 Canadian Y.B. Int’l L. 67–110 (1974). On the two dominant figures in international law in the late nineteenth and early twentieth centuries, Renault has received by far the greater attention, although not recently. See Paul Fauchille, “Louis Renault (1843–1918): Sa vie—son oeuvre,” 25 (supp.) RGDIP 1–147 (1918). On Martens, see V. V. Pustovarov, V. V., Our Martens: F. F. Martens, International Lawyer and Architect of Peace (trans. by W. E. Butler; Simmonds and Hill, 2000). On the career of a prominent Austrian international lawyer of the period, see Erich Kussbach, “Heinrich Lammasch, Scholar of Public International Law and Austrian Statesman,” 1(2) Miskole J. Int’l L. 63–77 (2004). Francis Lieber has also attracted some attention. See, for example, Frank Freidel, Francis Lieber, Nineteenth Century Liberal (Louisiana State University Press, 1947); and Ernest Nys, “Francis Lieber—His Life and Work,” 5 AJIL 84–117, 355–93 (1911). For a more recent account, see Betsy Röben, Johann Caspar Bluntschli, Francis Lieber und das modern Völkerrecht 1861– 1881 (Nomos, 2003), 15– 40. A great deal of information about Lieber may also be found in John Fabian Witt, Lincoln’s Code: The Laws of War in American History (Basic, 2012), particularly 173–96, 226– 49, and 317–21. For a biography of Halleck, see John F. Marszalek, Commander of All Lincoln’s Armies: A Life of General Henry W. Halleck (Harvard University Press, 2004), although it makes only passing reference to Halleck’s activity in international law . On Francis Wharton, see Mark W. Janis, The American Tradition of International Law: Great Expectations 1789–1914 (Oxford University Press, 2004), 122–24. On humanitarian achievements of international law in the nineteenth century, there is a growing literature. For a general history of the International Committee of the Red Cross, see Caroline Moorehead, Dunant’s Dream: War, Switzerland and the History of the Red Cross (HarperCollins, 1998). For an impressively thorough survey of the development of international organizations in the nineteenth century, see F. S. L. Lyons, Internationalism in Europe 1815– 1914 (A. W. Sijthoff, 1963). On the contribution of Paul Reinsch, see Jan Klabbers, “Re-Thinking Functionalism: Paul S. Reinsch and the Making of International Institutional Law” (Straus Institute Working Paper No 02/10, 2010).

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Arbitration is still another aspect of nineteenth-century international law that is not adequately treated in secondary literature, despite a wealth of material. On the Geneva arbitration of 1872 between the United States and Britain, a fine study is Adrian Cook, The Alabama Claims: American Politics and Anglo-American Relations, 1865–1872 (Cornell University Press, 1975). On commissions of inquiry, see Nissim Bar-Yaacov, The Handling of International Disputes by Means of Inquiry (Oxford University Press, 1974). On the two Hague Peace Conferences, there is a fairly substantial literature. For an excellent and lively account, though not focusing closely on legal questions, see Barbara W. Tuchman, The Proud Tower: A Portrait of the World before the War 1890–1914 (Macmillan, 1966), 265–338. On the first conference, see Dan L. Morrill, “Nicholas II and the Call for the First Hague Conference,” 43 J. Mod. Hist. 296–313 (1974); and Arthur Eyffinger, The 1899 Hague Peace Conference: ‘The Parliament of Man, the Federation of the World’ (Kluwer Law International, 1999). On the role of the United States at the first conference, see Calvin DeArmond Davis, The United States and the First Hague Peace Conference (Cornell University Press, 1962); and, at the second, Calvin DeArmond Davis, The United States and the Second Hague Peace Conference (Duke University Press, 1976). On humanitarian intervention in the nineteenth century, see Gary J. Bass, Freedom’s Battle: The Origin of Humanitarian Intervention (Alfred A. Knopf, 2008), which covers three major crises in detail—the Greek independence war in the 1820s, communal strife in Syria in the 1860s, and the Bulgarian atrocities of the 1870s. Covering a great many more situations, from the seventeenth to the twentieth centuries, is Brendan Simms and D. J. B. Trim (eds.), Humanitarian Intervention: A History (Cambridge University Press, 2011). On the Syrian affair, see also Stephen Kloepfer, “The Syrian Crisis 1860– 61: A Case Study in Classic Humanitarian Intervention,” 23 Canadian Y.B. Int’l L. 246–59 (1985). Several par ticu lar disputes of the nineteenth century have attracted some careful attention. On the Don Pacifico affair of 1850 (between Britain and Greece), see Jasper Ridley, Lord Palmerston (Constable, 1970), 374–76, 379–89. On the Russian denunciation of the Treaty of Paris arrangements on the Black Sea in 1870–71, see David J. Bederman, “The 1871 London Declaration, Rebus sic Stantibus and a Primitivist View of the Law of Nations,” 82 AJIL 1– 40 (1988). On the blockade of Venezuela in 1902–3, there is an excellent short account in Dana G. Munro, Intervention and Dollar Diplomacy in the Caribbean 1900–1921 (Princeton University Press, 1964), 66–77. See also Andrew Graham-Yooll, Imperial Skirmishes: War and Gunboat Diplomacy in Latin America (Signal, 2002), 145–57; and Miriam Hood, Gunboat Diplomacy: Great Power Pressure in Venezuela, 1795–1905 (2nd ed.; Allen and Unwin, 1983). On Luis Maria Drago, see Verena Botzenhart-Viehe, “Luis María Drago,” in Frank W. Thackeray and John E. Findling (eds.), Statesmen Who Changed the World: A Bio-Bibliographical Dictionary of Diplomacy, 175–83 (Greenwood Press, 1993). On Marxist perspectives on international law and international relations in the nineteenth century, see David Boucher, Political Theories of International Relations:

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From Thucydides to the Present (Oxford University Press, 1998), 354–74. On the Calvo Clause, see Donald Richard Shea, The Calvo Clause: A Problem of Inter-American and International Diplomacy (University of Minnesota Press, 1955). On the Drago Doctrine, see Arthur P. Whitaker, The Western Hemisphere Idea: Its Rise and Decline (Cornell University Press, 1954), 86–107.

9. Dreams Born and Shattered For an impressively general survey of international law in the twentieth century, see Carlo Focarelli, “International Law in the 20th Century,” in Alexander Orakhelashvili (ed.), Research Handbook on the Theory and History of International Law, 478–525 (Edward Elgar, 2011). On the interwar period specifically, see Peter Krüger, “From the Paris Peace Treaties to the End of the Second World War,” in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law, 679–98 (Oxford University Press, 2012). For a general history of international affairs in the interwar period, G. M. Gathorne-Hardy, A Short History of International Affairs 1920 to 1939 (3rd ed.; Oxford University Press, 1942) continues to be extremely useful. The literature on legal issues that arose in the First World War is immense. A leading work is James Wilford Garner, International Law and the World War (2 vols.; Longmans, 1920), concentrating on issues of importance to the United States. There is a strange lack of precise information, though, on the activities of many international lawyers. For an exception in the case of Oppenheim, see Mathias Schmoeckel, “Consent and Caution: Lassa Oppenheim and His Reaction to World War I,” in Randall Lesaffer (ed.), Peace Treaties and International Law in European History: From the Late Middle Ages to World War One, 270–88 (Cambridge University Press, 2004). On neutrality issues, see Edgar E. Turlington, Neutrality: Its History, Economics and Law: The World War Period (Columbia University Press, 1936); Alice N. Morrissey, The American Defense of Neutral Rights 1914–1917 (Harvard University Press, 1939); Ernest R. May, The United States and American Isolation 1914–1917 (Harvard University Press, 1959); John W. Coogan, The End of Neutrality: The United States, Britain, and Maritime Rights 1899–1915 (Cornell University Press, 1981). For a briefer survey of neutrality issues, see Stephen C. Neff, The Rights and Duties of Neutrals: A General History (Manchester University Press, 2000), 145– 65. On an abortive attempt by the United States and Britain to resolve contentious issues after the war, see B. J. C. McKercher, “A British View of American Foreign Policy: The Settlement of Blockade Claims, 1924–1927,” 3 Int’l Hist. Rev. 358–84 (1981). On the legal issues that faced the Paris Peace Conference of 1919, see Robert Lansing, “Some Legal Questions of the Peace Conference,” 13 AJIL 631–50 (1919). On dealing with war crimes, see James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (Greenwood Press, 1982). On the Leipzig war crimes trials in par ticu lar, see Harald Wiggenhorn, Verliererjustiz: Die Leipziger Kriegsverbrecherprozesse nach dem Ersten Weltkrieg (Nomos

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2005); Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press, 2000), 58–105; and, more briefly, Willis, Prologue to Nuremberg, 126– 42, 146– 47. On the Constantinople trial concerning the Armenian atrocities, see Bass, Stay the Hand, 106– 46. On the draft ing the League of Nations Covenant, the leading work continues to be David Hunter Miller, The Drafting of the Covenant (2 vols.; G. P. Putnam’s Sons, 1928). For briefer accounts, see F. P. Walters, A History of the League of Nations (Oxford University Press, 1952), 25–38; Margaret MacMillan, Peacemakers: The Paris Conference of 1919 and Its Attempt to End War (John Murray, 2001), 92–106; Lloyd E. Ambrosius, Woodrow Wilson and the American Diplomatic Tradition: The Treaty Fight in Perspective (Cambridge University Press, 1987), 51–79; and Alfred Zimmern, The League of Nations and the Rule of Law 1918–1935 (Macmillan, 1936), 236– 63. On the par ticu lar issue of a racial equality provision in the covenant, see Macmillan, Peacemakers, 315– 30; Robert A. Klein, Sovereign Equality among States: The History of an Idea (University of Toronto Press, 1974), 76–83; and Paul Gordon Lauren, “Human Rights in History: Diplomacy and Racial Equality at the Paris Peace Conference,” 2 Diplomatic History 257–78 (1978). The leading history of the League of Nations is still Walters, History of the League, which, although not written from a legal perspective, contains much information about legal disputes. See also F. S. Northedge, The League of Nations: Its Life and Times 1920–1946 (Leicester University Press, 1986). On the league mandate system, Quincy Wright, Mandates under the League of Nations (University of Chicago Press, 1930) continues to be useful. For a more recent perspective, see Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2007), 115–95. On the famous (if unsuccessful) program for protecting minority rights in Upper Silesia, see Georges Kaeckenbeeck, The International Experiment of Upper Silesia: A Study in the Working of the Upper Silesian Settlement, 1922–1937 (Oxford University Press, 1942). In addition, and more generally, see Jennifer Jackson Preece, “Minority Rights in Europe: From Westphalia to Helsinki,” 23 Rev. Int’l Stud. 75–92 (1997). On the legal issues posed by the requirement of registration of treaties, see Manley O. Hudson, “The Registration and Publication of Treaties,” 19 AJIL 273–92 (1925). On the Pact of Paris, see James T. Shotwell, War as an Instrument of National Policy and Its Renunciation in the Pact of Paris (Constable, 1929); and Robert H. Ferrell, Peace in Their Time: The Origins of the Kellogg-Briand Pact (Yale University Press, 1952). For a more recent consideration, see Bernhard Roscher, Der Briand-KelloggPakt von 1928: Der ‘Verzicht auf den Krieg als Mittel nationaler Politik’ im völkerrechtlichen Denken der Zwischenkriegszeit (Nomos 2004). On the World Court (or Permanent Court of International Justice), the leading work is Manley O. Hudson, The Permanent Court of International Justice, 1920–1942: A Treatise (Macmillan, 1943), although lay readers might find it to be somewhat daunting. Another very thorough study of the Court is Ole Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the Inter-

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national Judiciary (Cambridge University Press, 2005), although this, too, is probably too dense for a lay readership. For a thorough account of the drafting of the Court’s statute, see Ole Spiermann, “ ‘Who Attempts Too Much Does Nothing Well’: The 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice,” 73 BYBIL 187–260 (2002). On the various occasions on which the United States considered becoming a party to the Court, see Michael Dunne, The United States and the World Court, 1920–1935 (Pinter, 1988). On Anzilotti’s activity as a judge on the Court, see José Maria Ruda, “The Opinions of Judge Dionisio Anzilotti at the Permanent Court of International Justice,” 3 EJIL 100–22 (1992). On Walther Schücking’s tenure on the bench, see Ole Spiermann, “Professor Walther Schücking at the Permanent Court of International Justice,” 22 EJIL 783–99 (2011). For a thorough account of the experience of the mixed-claims commissions to which Mexico was a party, see A. H. Feller, The Mexican Claims Commissions 1923–1934: A Study in the Law and Procedure of International Tribunals (Macmillan, 1935). For a general history of the Hague Academy of International Law, see S. Verosta, “L’histoire de l’Académie de droit international de la Haye, établie avec le concours de la Donation Carnegie pour la paix international”; and R. Y. Jennings, “Fift y Years of Hague Academy Lectures on Public International Law,” both found in René-Jean Dupuy (ed.), Academy of International Law, Jubilee Book 1923–1973, 7–56 and 99–115, respectively (A. W. Sijthoff, 1973). On the Hague Conference on the Codification of International Law of 1930, see R. P. Dhokalia, The Codification of Public International Law (Manchester University Press, 1970), 116–33. On the Harvard Research project, see John P. Grant and J. Craig Barker (eds.), The Harvard Research in International Law: Contemporary Analysis and Appraisal (William S. Hein, 2007). There is information (spotty as usual) on various individual international lawyers active in this period. On Karl Strupp, see Sandra Link, Ein Realist mit Idealen—Der Völkerrechtler Karl Strupp (1886–1940) (Nomos, 2003). On Hans Wehberg, see Claudia Denfeld, Hans Wehberg (1885–1962): Die Organisation der Staatengemeinschaft (Nomos, 2008). Lauterpacht has received more attention than most. See Elihu Lauterpacht, The Life of Sir Hersch Lauterpacht, QC, FBA, LLD (Cambridge University Press, 2010); Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge University Press, 2001), 353– 412; Marti Koskenniemi, “Hersch Lauterpacht (1897–1960),” in Jack Beatson and Reinhard Zimmermann (eds.), Jurists Uprooted: German-Speaking Émigré Lawyers in Twentieth-Century Britain (Oxford University Press, 2004), 601– 61; Janne Elisabeth Nijman, The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law (T. M. C. Asser Press, 2004), 297–304. On Álvarez, see Liliana Obregón, “Noted for Dissent: The International Life of Alejandro Álvarez,” 19 Leiden J. Int’l L. 983–1016 (2006). For an excellent short account of the contribution and significance of Pitman B. Potter, a neglected figure, see Brian C. Schmidt, The Political Discourse of Anarchy: A Disciplinary History of International Relations (State University of New York Press, 1998) 201–9.

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Kaufmann has also received some attention. For an excellent short career biography of him, see Stephen Cloyd, “Erich Kaufmann,” in Arthur J. Jacobson and Bernhard Schlink (eds), Weimar: A Jurisprudence of Crisis, 189–94 (University of California Press, 2000). See also Koskenniemi, Gentle Civilizer of Nations, 249– 61. For the most thorough study, see Frank Degenhardt, Zwischen Machtstaat und Völkerbund: Erich Kaufmann (1880–1972) (Nomos, 2008). On James Brown Scott’s commitment to preGrotian natural-law approaches to international law, see Christopher L. Rossi, Broken Chain of Being: James Brown Scott and the Origins of Modern International Law (The Hague: Kluwer International, 1998). On James Brierly, see Carl Landauer, “J. L. Brierly and the Modernization of International Law,” 25 Vanderbilt Journal of Transnational Law 881–918 (1993), which presents him as a modernist and critic of positivism. See also Hersch Lauterpacht, “Brierly’s Contribution to International Law,” 32 BYBIL 1–19 (1955–56); and Nijman, Concept, 131–49. On the Spanish scholar and World Court judge Rafael Altamira, see Yolanda Gamarra, “Rafael Altamira y Crevea (1866–1951): The International Judge as ‘Gentle Civilizer,’ ” 14 JHIL 1–49 (2012). On Wellington Koo, see Jonathan Clements, Wellington Koo: China (Haus, 2008). Walther Schücking has received some recent attention, after long neglect. He was the subject of several articles in vol. 22 of the EJIL, including Frank Bodendiek, “Walther Schücking and the Idea of ‘International Orga nization’,” 22 EJIL 741–54 (2011); Christian J. Tams, “Re-Introducing Walther Schücking,” 22 EJIL 725–39 (2011); Jost Delbrück, “Law’s Frontier—Walther Schücking and the Quest for the Lex Ferenda,” 22 EJIL 801–8 (2011); and Mónica García-Salmones, “Walther Schücking and the Pacifist Traditions of International Law,” 22 EJIL 755–82 (2011). As noted, there is little attention to national traditions. See, however, Emmanuelle Jouannet, “A Century of French International Law Scholarship,” 61 Maine Law Review 84–131 (2009); and James Crawford, “Public International Law in TwentiethCentury England,” in Beatson and Zimmermann (eds.), Jurists Uprooted, 681–707. The Vienna School is in a class of its own regarding the amount of attention that has been lavished on it (probably well in excess of its actual influence). The best work on the subject is now Jochen von Bernstorff and Thomas Dunlap, The Public International Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge University Press, 2010). Still very useful is Josef Kunz, “The ‘Vienna School’ and International Law,” 11 NYULQR 370– 421 (1934), with international law matters treated at 392– 421. For fine short accounts, see Wolfgang Friedmann, Legal Theory (5th ed.; Stevens and Sons, 1967), 105–17; Gustavo Gozzi, Diritti e civilità: Storia e filosofia del diritto internazionale (Il Mulino, 2010), 167–92; and Michael Stolleis, A History of Public Law in Germany 1914–1945 (trans. by Thomas Dunlap; Oxford University Press, 2004), 151– 60. On the formative period, see Clemens Jabloner, “Kelsen and His Circle: The Viennese Years,” 9 EJIL 368–85 (1998). See also George A. Lipsky (ed.), Law and Politics in the World Community: Essays on Hans Kelsen’s Pure Theory and Related Problems in International Law (University of California Press, 1953). For support of the Vienna School approach from the English-speaking world, see Harold J. Laski, Studies in Law

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and Politics (George Allen and Unwin, 1932), 262– 69. On the life and career of Kelsen in par ticu lar, see Rudolf Aládar Métall, Hans Kelsen: Leben und Werk (F. Deutike, 1969), although this work is thought to be unsatisfactory by many of Kelsen’s followers. See also Jörg Kammerhofer, “Hans Kelsen’s Place in International Legal Theory,” in Orakhelashvili (ed.), Research Handbook, 143– 67; Peter Langford and Ian Bryan, “Hans Kelsen’s Theory of Legal Monism: A Critical Engagement with the Emerging Legal Order of the 1920s,” 14 JHIL 51–86 (2012); and Nijman, Concept, 149–92. Georges Scelle is another lawyer who has received significant attention. For excellent overviews of his thought, see Walter Schiffer, The Legal Community of Mankind: A Critical Analysis of the Modern Concept of World Organization (Columbia University Press, 1954), 258–77; and Nijman, Concept, 216–25. For a more thorough exposition, see Anja Wüst, Das völkerrechtliche Werk von Georges Scelle im Frankreich der Zwischenkriegszeit (Nomos 2007). Volume 1 of the European Journal of International Law contained a number of articles on Scelle, including H. Thierry, “The Thought of Georges Scelle,” 1 EJIL 193–209 (1990); and Antonio Cassese, “Remarks on Scelle’s Theory of ‘Role Splitting’ (dédoublement fonctionnel) in International Law,” 1 EJIL 210–31 (1990). See also Charles Rousseau, “Georges Scelle (1878–1961),” 65 RGDIP 5– 19 (1961); and N. Kasirer, “A Reading of Georges Scelle’s Précis de droit des gens,” 24 Canadian Y.B. Int’l L. 372–385 (1986). On socialist views of international law, there is a fairly considerable literature. See T. A. Taracouzio, The Soviet Union and International Law: A Study Based on the Legislation, Treaties and Foreign Relations of the Union of Soviet Socialist Republics (Macmillan, 1935); T. A. Taracouzio, “The Effect of Applied Communism on the Principles of International Law,” 28 ASIL Procs. 105–20 (1934); Ivo Lapenna, Les conceptions soviétiques de droit international public (A. Pedone, 1954); John N. Hazard, “Cleansing Soviet International Law of Anti-Marxist Theories,” 32 AJIL 244–52 (1938); John Hazard, “The Soviet Union and International Law,” 1 Soviet Studies 189–99 (1950); Zofia Maclure, “Soviet International Legal Theory—Past and Present,” 5 Fletcher Forum 49–73 (1981); and Kazimierz Grzybowski, Soviet Public International Law: Doctrines and Diplomatic Practice (A. W. Sijthoff, 1970). For especially critical accounts, see Hans Kelsen, The Communist Theory of Law (Stevens and Sons (1955), 148–92; and Jean Yves Calvez, Droit international et souverainete en U.R.S.S.: L’evolution de l’ideologie juridique sovietique depuis la Revolution d’Octobre (A. Colin, 1953). On war and neutrality, see P. H. Vigor, The Soviet View of War, Peace and Neutrality (Routledge and Kegan Paul, 1975); and D. Fedotoff White, “Soviet Philosophy of War,” 51 Pol. Sci. Q. 321–53 (1936). On treaties, see J. F. Triska and R. M. Slusser, The Theory, Law and Policy of Soviet Treaties (Stanford University Press, 1962); and Robert W. Slusser, and Jan F. Triska, “Treaties and Other Sources of Order in International Relations: The Soviet View,” 52 AJIL 699–726 (1958). On international organizations, see Charles Prince, “The U.S.S.R. and International Organizations,” 36 AJIL 425–45 (1941). On Korovin, see Kelsen, Communist Theory, 156–76; Mintauts Chakste, “Soviet Concepts of the State, International Law, and Sovereignty,” 43 AJIL 21–36 (1949), 23–30;

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Maclure, “Soviet International Legal Theory,” 49–54; and Lapenna, Conceptions soviétiques, 69–73. On Pashukanis, see Kelsen, Communist Theory, 152–56; Lapenna, Conceptions soviétiques, 74–78, 94–103; and William E. Butler, “Soviet International Legal Education: The Pashukanis Syllabus,” 2 Review of Socialist Law 79–102 (1976), 79–85. On Nazism and international law, see Peter K Steck, Zwischen Volk und Staat: Das Völkerrechtssubjekt in der deutschen Völkerrechtslehre (1933–1941) (Nomos 2003); Michael Stolleis, “International Law under German National Socialism: Some Contributions to the History of Jurisprudence 1933–1945,” in Michael Stolleis and Masaharu Yanagihara (eds.), East Asian and European Perspectives on International Law, 203–13 (Nomos, 2004); Detlev F Vagts, “International Law in the Third Reich,” 84 AJIL 661– 704 (1990); Dan Diner, Beyond the Conceivable: Studies on Germany, Nazism, and the Holocaust (University of California Press, 2000), 49–77; Peter M. R. Stirk, “John H. Herz and the International Law of the Third Reich,” 22 Int’l Rel. 427– 40 (2008); Jacques Fournier, La conception nationale-socialiste du droit des gens (A. Pedone, 1939); John H Herz, “The National Socialist Doctrine of International Law and the Problems of International Orga nization,” 54 Pol. Sci. Q. 536–54 (1939); Virginia L. Gott, “The National Socialist Theory of International Law,” 32 AJIL 704–18 (1938); and Lawrence Preuss, “National Socialist Conceptions of International Law,” 29 Am. Pol. Sci. Rev. 594– 609 (1935). On fascist ideas, both in Italy and Germany, about entitlement to territorial expansion, see Aristotle A. Kallis, Fascist Ideology: Territory and Expansionism in Italy and Germany, 1922–1945 (Routledge, 2000). On Helmut Nicolai, see Martyn Housden, Helmut Nicolai and Nazi Ideology (Macmillan, 1992). On Walz, see Christoph Schmelz, Der Völkerrechtler Gustav Adolf Walz: Eine Wissenschaftskarriere im ‘Dritten Reich’ (Logos, 2011). The Nazi legal theorist who has been accorded by far most attention from later scholars is Carl Schmitt. See, for example, Gopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (Verso, 2000), especially 226– 45, where Schmitt’s positions on international issues are discussed. See also Joseph W. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton University Press, 1983), which covers Schmitt’s life and career up to 1947. On the persecution of international lawyers in Germany by the Nazi government, see James Wilford Garner, “The Nazi Proscription of German Professors of International Law,” 33 AJIL 112–19 (1939). Italian fascism produced much less in the way of international law thinking than did Nazi Germany, so that secondary source material is correspondingly thin. On Ugo Spirito, however, see A. James Gregor, Mussolini’s Intellectuals: Fascist Social and Political Thought (Princeton University Press, 2005), 90–98. On international legal aspects of the Spanish Civil War, see Norman Padelford, International Law and Diplomacy in the Spanish Civil Strife (Macmillan, 1939); and William E. Watters, An International Affair: Non-Intervention in the Spanish Civil War, 1936–1939 (Exposition Press, 1970). On surveys of realist thinking in international relations, see James E. Dougherty and Robert L. Pfaltzgraff Jr., Contending Theories of International Relations: A

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Comprehensive Survey (3rd ed.; Harper and Row, 1990), 81–135; Jonathan Haslam, No Virtue Like Necessity: Realist Thought in International Relations since Machiavelli (Yale University Press, 2002); and Michael Joseph Smith, Realist Thought from Weber to Kissinger (Louisiana State University Press, 1986). There are also writings on various par tic u lar figures in this school who were prominent in the interwar period. On Frederick Sherwood Dunn, see William T. R. Fox, “Frederick Sherwood Dunn and the American Study of International Relations,” 15 World Politics 1–19 (1962). On E. H. Carr, see Charles Jones, E. H. Carr and International Relations: A Duty to Lie (Cambridge University Press, 1998). On Hans Morgenthau, see Koskenniemi, Gentle Civilizer of Nations, 436– 65; Smith, Realist Thought, 134– 64; Michael Williams (ed.), Realism Reconsidered: The Legacy of Hans Morgenthau in International Relations (Oxford University Press, 2007); and Oliver Jutersonke, “Hans J. Morgenthau on the Limits of Justiciability in International Law,” 8 JHIL 181–211 (2006). For a vigorous and stylish presentation of the case against basing international law on sanctions and coercion, see Gerhardt Niemeyer, Law Without Force: The Function of Politics in International Law (Princeton University Press, 1941).

10. Building Anew There is remarkably little writing on legal issues of the Second World War, in contrast with the First. There is, however, much information on occupation of territory and related matters in Mark Mazower, Hitler’s Empire: How the Nazis Ruled Europe (Penguin, 2008). Events immediately afterward, however, have attracted much interest. There are many accounts of the Nuremberg Trials. From the legal standpoint, the best are Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (Little, Brown, 1992); and Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford University Press, 2011). See also Bradley F. Smith, Reaching Judgment at Nuremberg (André Deutsch, 1977); Joseph H. Persico, Nuremberg: Infamy on Trial (Penguin, 1994); John Tusa and Ann Tusa, The Nuremberg Trial (Macmillan, 1983); and Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press, 2000), 147–205. On the High Command Trial, which took place after the main Nuremberg proceedings and dealt with military leaders, see Valerie Genviève Hébert, Hitler’s Generals on Trial: The Last War Crimes Tribunal at Nuremberg (University Press of Kansas, 2010). For a searching legal case against the tribunal’s ruling, see Leo Gross, “The Criminality of Aggressive War,” 41 Am. Pol. Sci. Rev. 205–25 (1947). On the analogous Far Eastern trials, the leading work is Robert Cryer and Neil Boister, The Tokyo International Military Tribunal (Oxford University Press, 2008). See also Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East, 1945–1951 (University of Texas Press, 1979), 9–33; and Arnold C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials (Collins,

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1989). For a very critical assessment of the proceedings, see John W. Dower, Embracing Defeat: Japan in the Wake of World War II (W. W. Norton, 1999), 443–74. On the founding of the United Nations, see Ruth B. Russell, A History of the United Nations Charter: The Role of the United States, 1940–1945 (Brookings Institution, 1958); Townsend Hoopes and Douglas Brinkley, FDR and the Creation of the U.N. (Yale University Press, 1997); Robert C. Hilderbrand, Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security (University of North Carolina Press, 1990); Stephen C. Schlesinger, Act of Creation: The Founding of the United Nations (Westview Press, 2003); Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Columbia University Press, 2009); Robert A. Klein, Sovereign Equality among States: The History of an Idea (University of Toronto Press, 1974), 109–34; and Evan Luard, A History of the United Nations: The Years of Western Domination, 1945–1955, vol. 1 (Macmillan, 1982), 17– 68. On the role and history of the UN Security Council, see David L. Bosco, Five to Rule Them All: The UN Security Council and the Making of the Modern World (Oxford University Press, 2009). Remarkably, there is not a thorough general history of international human rights law or of the UN experience in promoting and protecting human rights. The formative period, though, has received attention. See Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (University of Pennsylvania Press, 1999); Mary Ann Glendon, “John P. Humphrey and the Draft ing of the Universal Declaration of Human Rights,” 2 JHIL 250– 60 (2000); and Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House, 2001). On the life and career of René Cassin, see Antoine Prost and Jay Murray Winter, René Cassin et les droits de l’homme: Le projet d’un génération (Fayard, 2011). On the draft ing of the four Geneva Conventions of 1949, see Geoff rey Best, War and Law since 1945 (Clarendon Press, 1994), 80–114. Legal aspects of the Cold War have been greatly neglected, with modest exceptions. On the Korean conflict, see Luard, History, vol. 1, 239–74. For a thorough account of the UN membership crisis of the 1950s, see Leo Gross, “Progress towards Universality of Membership in the United Nations,” 50 AJIL 791–827 (1956). On the Cuban Missile Crisis, see Abram Chayes, The Cuban Missile Crisis (Oxford University Press, 1974); and Louis Henkin, How Nations Behave: Law and Foreign Policy (2nd ed.; Columbia University Press, 1979), 279–302. On the Congo crisis in the 1960s, see Georges AbiSaab, The United Nations Operation in the Congo 1960–1964 (Oxford University Press, 1978). On the Grenada intervention of 1983, international lawyers have taken opposing sides: see William C. Gilmore, The Grenada Intervention: Analysis and Documentation (Mansell, 1984), opposing the lawfulness of the action; and John Norton Moore, “Grenada and the International Double Standard,” 78 AJIL 145– 68 (1984), favoring lawfulness. On peaceful coexistence between the rival blocs, see Earl A. Snyder and Hans Werner Bracht, “Coexistence and International Law,” 7 ICLQ 54–71 (1958); and G. I. Tunkin, “Coexistence and International Law,” 95 RdC 1–82 (1958). On its succes-

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sor, detente, from the standpoint of international law, see Edward McWhinney, The International Law of Detente: Arms Control, European Security and East-West Cooperation (Sijthoff and Noordhoff International, 1978). On the Brezhnev Doctrine in historical perspective, see Robert A. Jones, The Soviet Concept of “Limited Sovereignty” from Lenin to Gorbachev: The Brezhnev Doctrine (Macmillan, 1990). For the canonical exposition of the doctrine itself, see Sergei Kovalev, “Sovereignty and International Duties of Socialist Countries,” Pravda, Sep. 25, 1968; translated and reprinted in 7 ILM 1323–25 (1968). The Reagan Doctrine was never encapsulated into a single specific formulation. For the best exposition of it, see Jeanne J. Kirkpatrick and Allan Gerson, “The Reagan Doctrine, Human Rights, and International Law,” in Louis Henkin et al., Right v. Might: International Law and the Use of Force (Council on Foreign Relations, 1991), 19–36. For a thorough general history of the Reagan Doctrine in action, though not from a legal perspective, see James M. Scott, Deciding to Intervene: The Reagan Doctrine and American Foreign Policy (Duke University Press, 1996). On the two doctrines considered together and subjected to legal analysis, see W. Michael Reisman, “New Wine in Old Bottles: The Reagan and Brezhnev Doctrines in Contemporary International Law and Practice,” 13 Yale J. Int’l L. 171–98 (1988), which argues (cautiously) for their lawfulness. On the activity of the World Court in the first half century after its reestablishment in 1946 (as the International Court of Justice), see Vaughan Lowe and Malgosia Fitzmaurice (eds.), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge University Press, 1996), especially 179–385, where the court’s contributions to eleven areas of substantive law are covered. On the International Law Commission, see R. P. Dhokalia, The Codification of Public International Law (Manchester University Press, 1970), 145–332; and Jeff rey S. Morton, The International Law Commission of the United Nations (University of South Carolina Press, 2000). In post-1945 realist and positivist thought, a key figure has been Georg Schwarzenberger. On his life and career, see Stephanie Steinle, “Georg Schwarzenberger (1908– 1991),” in Jack Beatson and Reinhard Zimmermann (eds.), Jurists Uprooted: GermanSpeaking Émigré Lawyers in Twentieth-Century Britain, 663–80 (Oxford University Press, 2004); and, at greater length, Stephanie Steinle, Völkerrecht und Machtpolitik: Georg Schwarzenberger (1908–1991) (Nomos, 2002). On trends in socialist thought on international law since 1945, see John N. Hazard, “Renewed Emphasis upon a Socialist International Law,” 65 AJIL 142– 48 (1971); and W. W. Kulski, “The Soviet Interpretation of International Law,” 49 AJIL 518–34 (1955). On Krylov, see Zigurds L. Zile, “A Soviet Contribution to International Adjudication: Professor Krylov’s Jurisprudential Legacy,” 58 AJIL 359–88 (1964). On Tunkin, see W. E. Butler, “The Learned Writings of Professor G. I. Tunkin,” 4 JHIL 394–423 (2002). Solidarist thought became a major feature of international law after 1945, but the literature on it is surprisingly thin. On Julius Stone, see Edward McWhinney, “Julius

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Stone and the Sociological Approach to International Law,” 9(2) UNSWLJ 14–25 (1986). On Álvarez’s career on the World Court bench, see Katharina Zobel, “Judge Alejandro Álvarez at the International Court of Justice (1946–1955): His Theory of a ‘New International Law’ and Judicial Lawmaking,” 19 Leiden J. Int’l L. 1017– 40 (2006). On Rolando Quadri, see Roberto Ago, “Sciences juridiques et droit international,” 90 RdC 851–958 (1956), 908–11. Assessments of the New Haven School are also rather sparse, considering the impact that it has had, at least in American law schools in the generation after 1945. Probably the single best presentation of the school’s stance is Myres S. McDougal, “International Law, Power, and Policy: A Contemporary Conception,” 82 RdC 133–259 (1953). For a survey of international law in general through the New Haven lens, see W. Michael Reisman, “The Quest for World Order and Dignity in the Twenty-First Century: Constitutive Process and Individual Commitment,” 351 RdC 9–381 (2010), especially 151– 61, where the “text-rule-based” mode of decision making is contrasted with the “policy-context-based mode.” For a capsule account, see Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge University Press, 2001), 474–77. For an account that focuses chiefly on Lasswell, see James Farr, “The New Science of Politics,” in Terrence Ball and Richard Bellamy (eds.), The Cambridge History of Twentieth-Century Political Thought, 431– 45 (Cambridge University Press, 2006). For a critical, but not unsympathetic, assessment of the New Haven School, see Richard A. Falk, “Casting the Spell: The New Haven School of International Law,” 104 Yale L. J. 1991–2008 (1995). For further criticism, see Oran R. Young, “International Law and Social Science: The Contributions of Myres S. McDougal,” 66 AJIL 60–76 (1972). In response, see Myres S. McDougal, “International Law and Social Science: A Mild Plea in Avoidance,” 66 AJIL 77–81 (1972). For the best flavor of the controversies generated by the New Haven School, see the series of sharp attacks and defenses in “McDougal’s Jurisprudence: Utility, Influence, Controversy,” 79 ASIL Procs. 266–88 (1985). On the World Order Models Project, see Simon Dalby, “Against ‘Globalization from Above’: Critical Geopolitics and the World Order Model Project,” 17 Environment and Planning, D: Society and Space 181–200 (1999). For Richard Falk’s own presentation of his position, the best sources are probably Richard A. Falk, A Study of Future Worlds (Free Press, 1975); and Richard A. Falk, On Humane Governance: Toward a New Global Politics (Polity Press, 1995). On the emergence of the Third World countries into a major role on the world scene, see Peter Lyon, “The Emergence of the Third World,” in Hedley Bull and Adam Watson (eds.), The Expansion of International Society, 229–37 (Clarendon Press, 1984); Patricia Buirette-Maurau, La participation du tiers-monde à l’élaboration du droit international (Librairie générale de droit et de jurisprudence, 1983); and Gustavo Gozzi, Diritti e civilità: Storia e filosofia del diritto internazionale (Il Mulino, 2010), 289–312. On the termination of extraterritoriality in China, see Wesley R. Fishel, The End of Extraterritoriality in China (University of California Press, 1952). On decolonization

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generally, see James Crawford, The Creation of States in International Law (2nd ed.; Clarendon Press, 2006), 602– 47. On the attitudes of Asian states toward international law, see William L. Tung, International Law in an Organizing World (Crowell, 1968). On African states and international law, see Felix Chuks Okoye, International Law and the New African States (Sweet and Maxwell, 1972); and Romain Yakemtchouk, L’Afrique en droit international (Librairie générale de droit et de jurisprudence, 1971). For a wide-ranging look at the New International Economic Order of the 1970s, see Kamal Hossein (ed.), Legal Aspects of the New International Economic Order (Frances Pinter, 1980). On the principle of self-determination of peoples, a useful broad historical survey, though not from a legal perspective, is Alfred Cobban, The Nation State and National Self-Determination (Collins, 1969). On Woodrow Wilson’s contribution, see Erez Manela, The Wilsonian Moment: Self-Determination and the International Origins of Anticolonial Nationalism (Oxford University Press, 2007). For a much more skeptical view of Wilson’s commitment, see Trygve Throntveit, “The Fable of the Fourteen Points: Woodrow Wilson and National Self-Determination,” 35 Diplomatic History 445–81 (2011). For a specifically legal perspective on the question, the principal work is Antonio Cassese, Self-Determination of Peoples: A Legal Appraisal (Cambridge University Press, 1995). On the development of the law on the use of force by national liberation groups, see Heather A. Wilson, International Law and the Use of Force by National Liberation Movements (Clarendon Press, 1988).

11. Shadows across the Path On more recent developments, there is inevitably less available in the way of historical perspective. For a convenient survey of postwar resorts to armed force, see Thomas M. Franck, Recourse to Force: State Action against Threats and Armed Attacks (Cambridge University Press, 2002). For advance inklings of new Soviet thinking about international law, see Kazimierz Grzybowski, “Soviet Theory of International Law for the Seventies,” 77 AJIL 862–72 (1983). On perestroika after 1985, see John N. Hazard, “ ‘New Thinking’ in Soviet Approaches to International Politics and Law,” 2 Pace Int’l L. Rev. 1–19 (1990); R. A. Mullerson, “Sources of International Law: New Tendencies in Soviet Thinking,” 83 AJIL 494–512 (1989); and A. Carty and G. Danilenko (eds.), Perestroika and International Law (Edinburgh University Press, 1990). For Gorbachev’s own views on the implications of perestroika for international relations (if not law specifically), see Mikhail Gorbachev, Perestroika: New Thinking for Our Country and the World (Harper and Row, 1987), 121–36. On the Iran hostages crisis of 1979–81, Paul H. Kreisberg (ed.), American Hostages in Iran: The Conduct of a Crisis (Yale University Press, 1985) contains a great deal on legal aspects of the crisis, particularly Oscar Schachter, “International Law in the Hostage Crisis: Implications for Future Cases,” 325–73. On the achievements of the Iran– United States Claims Tribunal in the years following the crisis, see George H. Aldrich,

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The Jurisprudence of the Iran–United States Claims Tribunal: An Analysis of the Decisions of the Tribunal (Clarendon Press, 1996); and Wayne Mapp, The Iran–United States Claims Tribunal: The First Ten Years, 1981–1991 (Manchester University Press, 1993). On the contributions of Thomas Franck to legal thought, see David Kennedy, “Tom Franck and the Manhattan School,” 35 N.Y.U. J Int’l L. and Pol. 397– 435 (2003); and Janne Elisabeth Nijman, The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law (T. M. C. Asser Press, 2004), 407–27. His own major works include Thomas M. Franck, The Power of Legitimacy among Nations (Oxford University Press, 1990); Fairness in International Law and Institutions (Clarendon Press, 1995); and The Empowered Self: Law and Society in the Age of Individualism (Oxford University Press, 1999). On critical legal studies, an excellent (and critical) overview is Nigel Purvis, “Critical Legal Studies in Public International Law,” 32 Harvard Int’l L. J. 81–127 (1991). The movement’s major contribution to the field continues to be Martti Kosenniemi, From Apology to Utopia: The Structure of Legal Argument (Cambridge University Press, 1989). For notable expositions by its leading champion, see David Kennedy, “International Legal Education,” 26 Harvard Int’l L. J. 361–84 (1985); “A New Stream of International Law Scholarship,” 7 Wis. Int’l L. J. 1– 49 (1988); “Theses about International Legal Discourse.,” 23 GYBIL 353–91 (1980); and “The Mystery of Global Governance,” in Jeff rey L. Dunoff and Joel P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance, 37– 68 (Cambridge University Press, 2009). For a vivid presentation of the skepticism of the critical school toward human rights law, see David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press, 2004), 8–35. For further writing in this vein, see James Boyle, “Ideals and Things: International Legal Scholarship and the Prison-House of Language,” 26 Harvard Int’l L. J. 327–59 (1985). The major works of Philip Allott are Eunomia: A New Order for a New World (Oxford University Press, 1990); and The Health of Nations: Society and Law beyond the State (Cambridge University Press, 2002). For lucid commentary on his work, see Cornelius F. Murphy, Theories of World Governance: A Study in the History of Ideas (Catholic University Press of America, 1999), 121–38. See also Iain Scobbie, “ ‘The Holiness of the Heart’s Affection’: Philip Allott’s Theory of Social Idealism,” in Alexander Orakhelashvili (ed.), Research Handbook on the Theory and History of International Law, 168–95 (Edward Elgar, 2011). Constitutionalism has become the dominant field in international law, at least judging by the amount of writing and the number of people professing one form or another of it. For an excellent overall summation of it, see Anne Peters, “Global Constitutionalism Revisited,” 11 Int’l Legal Theory 39– 67 (2005), especially 48–58. Probably the best single exposition is Bruno Simma, “From Bilateralism to Community Interest in International Law,” 250 RdC 217–384 (1994). See also Jeff rey L. Dunoff and

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Joel P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press, 2009); Jan Klabbers, Anne Peters, and Geir Ulfstein, The Constitutionalization of International Law (Oxford University Press, 2009); Christian Tomuschat, “Obligations Arising for States without or against Their Will,” 241 RdC 195–384 (1993); Nicholas Tsagourias (ed.), Transnational Constitutionalism: International and European Perspectives (Cambridge University Press, 2010); and D. M. Johnston (ed.), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Martinus Nijhoff, 2005). Closely related to constitutionalism is international (or global) administrative law. For the most notable exposition of this approach, see Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, “The Emergence of Global Administrative Law,” 68 (2 and 3) L and Cont. Prob. 15– 61 (2005). For a more succinct presentation, see Benedict Kingsbury, “The Administrative Law Frontier in Global Governance,” 99 ASIL Procs. 143–53 (2005). See also Benedict Kingsbury and Nico Krisch, “Introduction: Global Governance and Global Administrative Law in the International Legal Order,” 17 EJIL 1–13 (2006). The most prominent exposition of the feminist approach to international law is Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester University Press, 2000). In addition, see Hilary Charlesworth, Christine Chinkin, and Shelley Wright, “Feminist Approaches to International Law,” 85 AJIL 613–45 (1991); and Hilary Charlesworth, “Feminist Methods in International Law,” 93 AJIL 379–94 (1999). On Chinkin’s work, see Nijman, Concept, 428–44. On the various international criminal tribunals, see Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press, 2000). On the prosecution of heads of government for atrocities, see Ellen L. Lutz and Caitlin Reiger (eds.), Prosecuting Heads of State (Cambridge University Press, 2009). For robust objections to the use (or overuse) of universal jurisdiction, see Henry A. Kissinger, Does America Need a Foreign Policy? Toward a Diplomacy for the 21st Century (Free Press, 2001), 273–82. On the opposition in the African Union to universal jurisdiction, see Charles Chernor Jalloh, “Universal Jurisdiction, Universal Prescription? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction,” 21 Crim. L. F. 1– 65 (2010). For a vigorous exposition of the shortcomings and defects of current international law, in a variety of subject areas, see Matthew Parish, Mirages of International Justice: The Elusive Pursuit of a Transnational Legal Order (Edward Elgar, 2011). A classic attack on international lawyers is Dean Acheson, “The Arrogance of International Lawyers,” 2 International Lawyer 591–99 (1968). For a more recent, and extended, work in that vein, see Eric Posner, The Perils of Legal Globalism (University of Chicago Press, 2009). Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (Oxford University Press, 2005) puts the case that the pursuit of rational selfinterest by states is the true driving force behind international law. For a valiant

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defense of international law and lawyers against these critiques, see Mary Ellen O’Connell, The Power and Purpose of International Law (Oxford University Press, 2008). On dangers that may lie ahead, see Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (Simon and Schuster, 1996), especially 316– 21, where rules for coexistence are posited, on the basis of (purportedly) truly universal values.

Index

Abu Yusuf, 95 Academy of International Law. See Hague Academy of International Law Acosta, José de, 125 Ad hoc judges, 354–355, 464 Admiralty courts, 206, 212–213, 229 Advisory Committee of Jurists, 353, 362 Advisory opinions (of the World Court), 355–357, 405– 407, 437– 438, 442– 443 Aerial warfare. See War, conduct of Afghanistan, 440 African Charter on Human and Peoples’ Rights, 447 African Commission on Human and Peoples’ Rights, 447 African Court on Human and Peoples’ Rights, 447 African Union (AU), 471, 477 Aggression: by Germany in World War I, 349; as an international crime, 395, 398, 399, 402, 403, 432, 448, 450, 470 Ago, Roberto, 414, 415– 416 Agricultural theory, 128–129 Alanus Anglicus, 58, 65 Albania, 360, 410– 411 Alberdi, Juan Bautista, 287–288, 294, 297, 306, 307 Alberic of Rosate, 89 Alcorta, Amancio, 307 Alexander I (of Yugoslavia), 362 Alexander III, Pope, 58 Alexander VI, Pope, 110 Alexander the Great, 10, 35, 44, 143 Alfonso IX (of Leốn), 55, 150

Aliens, treatment of, 273–274, 277, 352, 363. See also Calvo Clause; Calvo Doctrine; Human rights; International minimum standard; Nationalization of property Alliances: in Sumer, 14; as basis of Roman Empire, 31; Egypt and Hittites, 36–37; Poland and Lithuania, 104; by states of the Holy Roman Empire, 139; Christianpagan, 144, 150–151, 316; France and Spain, 207; anti-Boxer, 337; UN, 394, 400 Allott, Philip, 465– 466 Aloaçoves, Treaty of, 109–110 Altamira, Rafael, 356 Altruism, parochial. See Parochial altruism Álvarez, Alejandro, 291–292, 302, 306, 310, 374, 375, 401, 415, 425, 431, 455 Amalfian, 81 Aman, 99 Ambrose of Milan, 55 American Bar Association, 404 American Society of International Law, 274, 307, 381, 392, 405; founding of, 302 Amin, Idi, 473 Anarchism, 321 Ancus Marcius, 32 Antonio de Montesinos, 121 Anzilotti, Dionisio, 232, 234–236, 246, 284, 302, 306, 348, 355, 356, 365, 368–369, 401 Apastamba, 17 Aquinas, Thomas, 61, 62, 66, 72, 78, 83, 92–93, 101, 154, 160 166, 167, 168, 184, 245–246, 379 Aragon, 58

604

Arangio-Ruiz, Gaetano, 417, 419 Arbitration: in Sumer, 13–14; in ancient China, 19; ancient Greece, 30; contrasted with ligitation, 30, 328–329; papal, 57–59; at the First Hague Peace Conference, 217; in the nineteenth century, 218, 298–299, 300, 307–308, 328–330, 338–339; collections of decisions, 303; ser vice by international lawyers, 307, 308, 309; post–World War II, 396, 411, 441, 446. See also Arbitration (cases); Court of Arbitral Justice, proposed; Mixed-claims commissions; Permanent Court of Arbitration Arbitration (cases): Geneva (1872), 298–299, 329; Don Pacifico incident, 335–336; Venezuelan Preferences, 336 Argentina, 307, 335, 338, 466 Arias de Ávila, Pedro (Pedrarias Dávila), 112 Ariga Nagao, 315, 324 Aristides, 11 Aristotelianism, medieval, 78–79, 143, 144–145, 156, 265 Aristotle, 7, 25–26, 30, 35, 42, 45, 61, 62, 117, 118, 121, 122–123, 167, 169, 174, 182–183, 186, 196, 250, 285. See also Aristotelianism, medieval; Natural sociability, principle of Armed conflict. See Wars Armenia, 58; massacres in, 350, 397 Arntz, E. R. N., 296, 297 Artasastra, 16–17 Ashburton, Alexander Baring, Lord, 246–247 Ashoka, 37 Assassins, employment of, in war, 198 Asser, T. M. C., 300–301, 302, 324, 325 Asylum, 207, 350 Atomic energy, 396. See also Nuclear weapons AU. See African Union Augustine of Hippo, 65, 68, 96 Austin, John, 223–224, 231, 239, 305, 334, 392 Australia, 353

Index

Austria, 177, 208, 238, 278, 280, 281, 289, 339, 356–357, 359–360, 366, 367, 380. See also Austria-Hungary Austria-Hungary, 324, 349 Autarkeia, 25. See also Autarky Autarky, 25, 386 Autolimitation theory, 240–241, 242, 247, 384; criticism of, 426. See also Neo-Kantianism Averroes, 465– 466 Awza’i, Abd al-Rahman al-, 95 Axelrod, Robert, 35, 242–243 Ayala, Balthasar, 148–149, 149–150 Aztec Empire, 107, 117 Bacon, Francis, 179, 227, 479 Balboa, Vasco Nuñez de, 111, 112 Baldus of Ubaldis, 82 Barbarian states: ancient Greece and, 27, 35; in the nineteenth century, 311–312, 315, 335, 432– 433. See also Civilized states; Extraterritoriality; Inequality of states; Savage states Barbosa de Oliveira, Ruy, 326, 348, 355 Bartolus of Sassoferrato, 54, 76–77, 82, 89, 109 Bashir, Omar al, 475, 477– 478 Basic norm (Vienna School), 368–369, 379, 456. See also Vienna School Ba status, 19 Bastiat, Frédéric, 271, 272 Bastid, Suzanne, 464 Baudhayana, 17 Bedjaoui, Mohammed, 471 Belgium, 278, 296, 345, 347, 348, 350, 351, 358, 359, 390, 470– 471, 472 Belli, Pierino, 148 Bello, Andrés, 263–264, 306 Bentham, Jeremy, 210–211, 223, 263 Bergbohm, Carl, 239 Bernard, Henri, 399 Beyani, Chaloka, 471 Black Sea, demilitarization of, 298 Blockade, 212, 327, 328, 329, 334–336, 338 Bluntschli, Johann Kaspar, 262, 264–267, 284, 289, 301, 303, 308, 322, 323, 413, 462 Bodin, Jean, 145–147, 169, 273

Index

Boissonade, Gustave, 315 Bolívar, Simon, 263 Bolivia, 352 Bonaparte, Napoleon, 210 Bonet, Honoré, 84–85, 89, 102 Bonfi ls, Henry, 258–259, 264, 292–293, 311, 351 Boniface VIII, Pope, 57, 58–59 Bonnot, Gabriel. See Mably, Gabriel Bonnot, Abbé de Bonn School, 239 Borchard, Edwin, 273–274, 391, 394, 429 Bosnia, 445 Boulding, Kenneth, 456 Bourgeois, Léon, 291 Bourquin, Maurice, 414– 415 Bouvet, Honoré. See Bonet, Honoré Boxer Rebellion, 337 Brazil, 111, 223, 317, 324, 326, 348 Brezhnev Doctrine, 407– 409, 410, 444 Briand, Aristide, 361. See also Pact of Paris Brierly, James, 381–382, 401, 421 Britain. See Great Britain Brownlie, Ian, 416, 419, 451 Brussels projet. See War, conduct of Budapest Articles of Interpretation, 393, 394. See also Pact of Paris Buddhism, 37–38 Buergenthal, Thomas, 423 Buero, Antonio, 348 Bughat, 99–100 Bulgaria, 58, 296, 324, 349, 359–360, 406– 407 Bulls, papal: Ausculta fili, 57; In coela domini, 106; Dum diversas, 109; Romanus Pontifex, 109; Inter Caetera (1456), 109; Inter caetera (1493), 110; Sublimis Deus, 118–119. See also Catholic Church; Papacy, Catholic Burke, Edmund, 221 Burlamaqui, Jean-Jacques, 177, 195 Burma, 433 Bush, George H. W., 444 Bynkershoek, Cornelius van, 192–193, 196, 213, 221 Byzantine Empire, 87, 94, 98, 105, 106, 316

605

Callixtus III, Pope, 109 Calvo, Carlos, 228–229, 246, 276–277, 306, 307, 338, 363. See also Calvo Clause; Calvo Doctrine Calvo Clause, 277 Calvo Doctrine, 276–277, 338, 434 Canada, 130, 246, 304, 437, 441 Cannon-shot rule, 204–205 Canon law, 53–54, 60, 73, 82, 83, 116, 118, 144, 223 Capitulations: Ottoman, 316, 358; Persian, 359. See also Consular jurisdiction; Extraterritoriality; Mixed courts, Egyptian Carnegie, Andrew, 301, 333–334 Carnegie Endowment for International Peace, 302, 363, 372, 387 Carnegie Institution of Washington, 301–302 Caroline incident, 246–247 Carr, E. H., 392 Cartagena, Alfonso de, 108–109 Cartazes, 132 Cartier, Jacques, 130 Cassese, Antonio, 471 Cassin, René, 402 Catholic Church, 51, 52, 282; and natural-law revival, 378. See also Bulls, papal; Canon law; Christianity; Constance, Council of; Crusades; Lateran Council; Lyon, Council of; Papacy, Catholic; Sanctions: ecclesiastical Cecil, Robert, 352–353 Central African Republic, 450 Central American Court of Justice, 333–334, 354 Cession of territory, 129–131 Ceylon, 433 Chad, 477, 478 Chamberlain, Neville, 390 Chardin, Teilhard de, Pierre. See Teilhard de Chardin, Pierre Charlemagne, 53, 98 Charles II (of England), 166 Charles IV, Emperor, 76 Charles V, Emperor, 120, 148, 150 Charles d’Orléans, 86

606

Index

Charlesworth, Hillary, 462– 464 Chaucer, Geoff rey, 85–86 Chemical weapons. See Weapons, prohibited Chevalier, Michel, 272 Chile, 263, 306, 352, 472 China: pre-imperial, 7, 13, 15–16, 17–25, 223, 328; imperial, 37–38, 39– 41, 48– 49, 59– 60, 314, 315, 324, 334–335, 337; isolation in the nineteenth century, 295–296; as a barbarian state, 311, 312; reception of Western international law, 312–314; extraterritoriality in, 316–317, 352, 359, 433; post-imperial, 400, 404, 427, 472 Chinkin, Christine, 462, 463 Christianity, 63– 64; and natural law, 56, 59, 65, 124, 160; and just-war doctrine, 67– 68, 69, 71, 96, 117, 152; and government, 74, 145; and conversion of infidels, 102–103, 104, 108, 110, 113–114, 116–117, 119, 121–122. See also Bulls, papal; Canon law; Catholic Church; Crusades; Dilatatio theory; Papacy, Catholic; Sanctions, ecclesiastical Christine de Pisan, 85, 89, 462 Cicero, Marcus Tullius, 32, 45, 47, 469 Civilized states, 310–312, 315, 317, 318, 432– 433; Turkey as, 312; Japan as, 317; and P.C.I.J. Statute, 382. See also Barbarian states; Inequality of states; Savage states Civil wars, 323, 435, 445, 450, 470, 473; in Islamic law, 99–100; intervention in, 278–279; American Civil War, 299, 329; in the former Yugoslavia, 445, 448; in Congo, 470; in Pakistan, 473. See also Humanitarian intervention Civitas maxima. See Supreme state (of Wolff ) Classics of International Law, The, 301–302 Clement V, Pope, 77–78, 106 Clement VI, Pope, 103, 108, 109 Clement VII, Pope, 84 Cobbett, William, 199 Cobden, Richard, 272 Cobden-Chevalier Treaty, 272 Cocceji, Samuel, 177, 310

Codification of international law: and natural law, 205; debates over, 319, 321–322, 362–363. See also Codification projects; International Law Commission Codification projects: Grégoire, 209–210; in nineteenth century, 265, 322–323; interwar period, 363–364; post–World War II, 412– 414, 440– 441. See also Codification of international law Cold War, 344, 395–396, 404– 410, 412, 415, 430; end of, 440, 443– 445, 448, 452 Collective security: Mencius on, 23; interwar, 351–352, 362, 371, 372, 374, 390; attacks on, 391–393; post–World War II, 395–396, 400, 422– 423, 444 Collini, Lorenzo, 217 Colombia, 114 Columbus, Christopher, 107, 110, 111 Combatant status, 325, 435. See also Martens Clause; National liberation, wars of Commission on the Responsibility of the Authors of the War, 349 Committee Against Torture, 447 Common juridical conscience, 253, 262, 478. See also Fairness, concept of; Justice, sense of; Natural law Common law: ancient Greek, 27; Ius gentium as, 45, 155; English, 72, 213, 229. See also “Common law of humanity”; Ius commune “Common law of humanity,” 262, 297. See also Ius gentium Common-will variant of positivism, 226, 231–236, 238, 246, 247, 257, 261, 365, 376, 415, 426; modification of, 368–369; and socialist thought, 384. See also Empirical variant of positivism; Positivism (general); Voluntarist variant of positivism Communes, medieval Italian, 74, 75–77, 94, 169 Community, human, 43, 45, 46, 146, 155, 293, 296, 465. See also Community, international; Natural law; Natural sociability, principle of; Peremptory norms; Solidarism

Index

Community, international, 211, 299–300, 373, 399, 407, 423; collective will of, 230, 253, 379–380; positivist criticism of, 238–239, 249, 417– 418, 470– 471; mainstream positivist view of, 249–251; solidarist view of, 261, 285, 292–297, 296, 378, 425, 426, 427, 452, 453– 454, 457; membership of, 299–300, 310–312; F. F. Martens on, 309; and neutrality, 394; socialist criticism of, 420; peremptory norms and, 432; Th ird World and, 432– 434; and universal jurisdiction, 470. See also Barbarian states; Civilized states; Common juridical conscience; Community, human; Constitutionalism; Equality of states, principle of; Humanitarian intervention; Inequality of states; Legislation, international; Natural law; Natural sociability, principle of; Opinio juris; Peremptory norms; Quasi-sovereignty; Savage states; Solidarism; Stoics and stoicism; World government Comte, Auguste, 222–223, 227–228, 256, 275–276, 286, 314, 371, 458 Condillac, Étienne Bonnot de, 193 Conduct of war. See War, conduct of Confucianism, 21–23, 39– 40 Confucius, 18. See also Confucianism Congo, 442, 450, 470, 477 Conquest. See Title to territory, legal bases of Consolato del Mare, 81, 202–203 Constance, Council of, 104–105 Constance, Peace of, 76 Constitutionalism, 453– 458, 460, 466; Scelle and, 376–377; Quadri and, 426; criticism of, 460 Consular jurisdiction, 316, 323. See also Extraterritoriality Continental Shelf, 413, 440– 441 Contraband of war, 191–192, 197–198, 211–212, 323, 327, 328 Contract-treaties, 232–234, 384. See also Common-will variant of positivism; Law-treaties; Treaties (general): contractual character of

607

Contractual character: of ius gentium, 156; of the voluntary law of nations, 161; of customary international law, 185, 194, 200, 232, 247–248, 417– 418. See also Customary international law: legislative view of; Treaties (general): contractual character of Conventions. See Treaties, multilateral Cortés, Hernán, 114, 117 Costa Rica, 275, 325, 333, 447 Council of Europe, 471 Council of the Indies, 114, 115, 123 Court of Arbitral Justice, proposed, 332–333, 354 Crassus, Marcus Licinius, 34 Crawford, James, 414 Crimes against humanity: in World War I, 350; and Nuremberg Trials, 397, 398; International Law Commission on, 402; and Yugoslavia Crimes Tribunal, 440, 448– 449, 464; legal defi nition of, 448– 449; and International Criminal Court, 450, 478; and Rwanda Crimes Tribunal, 464; and universal jurisdiction, 470. See also Genocide Crimes against the peace, 397, 398, 470. See also Aggression: as an international crime Critical legal studies, 458– 461, 463 Croatia, 445 Crossbows. See Weapons, prohibited Crusades: in the Holy Land, 55, 102, 106; in Spain, 100, 113; in the Canary Islands, 103; in northeastern Europe, 103–105. See also Dilatatio theory; Just-war doctrine, medieval; Muslim and Christian states, relations between Cuba, 326, 347, 407 Customary international law, 181, 184, 186, 226, 249–250, 263, 266, 267, 273–274, 310, 337, 382, 410, 418– 419, 432; contractual view of, 185, 194, 200, 232, 247–248, 417– 418; relation to treaties, 193, 200, 440– 441; as the primary basis of international law, 230–231, 236, 416; contrast to usage, 231; mainstream positivist view of, 252–253; legislative

608

Index

Customary international law (continued) view of, 268–269, 370; majority rule and, 417– 419. See also Ius gentium; Peremptory norms; Usage Customary law (general), 80; medieval law merchant, 86–87; ius gentium as, 155–156, 173; Grotius on, 161; Pufendorf on, 175–177. See also Customary international law; Customary practices of states Customary practices of states: in ancient China, 20–21, 24; in ancient Greece, 28; in medieval Europe, 80–91; diplomacy, 98–99; Pufendorf on, 175–177; as a source of international law, 181, 193, 194, 200, 247, 257, 319, 325, 369, 478; European, 202, 315, 384. See also Customary international law; Empirical variant of positivism; Usage Cynics, 42– 43 Czechoslovak ia, 360, 407, 408– 409 d’Aguesseau, Henri François, 210–211 Dante Alighieri, 54, 74, 77, 146, 370 Danton, Jacques, 208 Danzig, Free City of, 356, 380 Dar al-Ahd (“House of Covenant”), 98–99 Dar al-Harb (“House of War”), 96, 98, 100, 383 Dar al-Islam (“House of Islam”), 96, 98 Dar al-Suhl (“House of Truce”), 98 David II (of Scotland), 85 Declarations: of Peace, 206–207; of Pilnitz, 208; of Paris, 319–320, 323; of St. Petersburg, 320; of London, 328, 332; on Friendly Relations (UN), 412, 437 Decolonization, 211, 285, 344; UN Declaration on, 436. See also Self-determination Decree on Peace, 382 de Gaulle, Charles, 402 de Groot, Hugh. See Grotius, Hugo Denial of justice. See Justice, denial of Denmark, 77, 175, 313 Depositions of rulers by popes: Frederick II, 50–51, 56–57, 445; Henry IV, 56; Sancho II, 57 Descamps, Édouard, 362

de Staël, Germaine, 280 de Visscher, Charles, 348, 356, 415 Dharmasastras, 17 Digests of international law, 302–303 Dilatatio theory, 102–103, 104–105, 119–123 Diogenes, 43 Diplomatic immunity. See Immunity, diplomatic Diplomatic relations, 7; in imperial China, 20, 39– 40; in ancient Greece, 25; and ius commune, 73; Islamic, 96, 98–99; Asian, 131; Grotius on, 162; Rachel on, 172; Zouche on, 191–192; Bynkershoek on, 192; G. F. von Martens on, 199; Harvard Research project on, 363; ruptures of, 231, 334. See also Immunity, diplomatic Diplomatics, science of, 190 Diplomatic ser vice by international lawyers, 84, 108, 133, 148, 171–172, 193, 195, 228–229, 230, 263, 275, 305–306, 419– 420, 427 Diplomats, mistreatment of, 9, 20, 335, 441– 442. See also Immunity, diplomatic Djibouti, 477 Dominium, 204–205 Domin-Petrushevecz, Alphonse von, 322 Donnedieu de Vabres, Henri, 415 Don Pacifico incident, 335–336 Drago, Luis María, 338 Drago Doctrine, 338 Drake, Francis, 127 Dualist theories: of ius gentium, 63– 65, 66– 67, 153; of Suárez, 154–158; of Grotians, 159–163; of Grotian school, 170–173, 178, 180, 182, 183, 226; of positivists, 234–235, 243, 417; criticism of positivist dualism, 238, 370, 373, 375–376, 428. See also Monism Dugard, John, 414 Duguit, Léon, 291, 293, 294, 297, 370, 373, 374–375, 398–399 Dulles, John Foster, 404 Dumont, Jean, 190–191 Dupuy, Pierre-Marie, 451– 452 Durkheim, Émile, 291, 373, 375 Dutch East India Company, 132, 133, 151, 158

Index

Eagleton, Clyde, 421, 427, 458, 466–467, 479 Eclectic school. See Grotian school Edward I (of England), 58–59, 106 Egypt: ancient, 36–37; medieval, 105, 106; mixed courts in, 316, 358–359, 433; British intervention in, 336. See also Suez Canal Elizabeth I (of England), 127 El Salvador, 275, 333 Emanationist theory (of ius gentium), 63, 66– 67, 152–153, 154, 162, 379. See also Dualist theories: of ius gentium; Substitution theory (of ius gentium) Emergent strategies of order, 180–181; network of treaties as, 201; neoKantianism as, 242–243, 276; mainstream positivism as, 248, 319; liberalism as, 276; solidarism and, 424, 431, 459 Empirical variant of positivism, 226–231, 236, 243, 246, 247, 249–250, 252–253, 254, 257, 334, 364–366, 381, 415– 416, 417, 418; and solidarism, 294, 424; and the Vienna School, 368–369, 371; and realism, 392; and socialism, 420. See also Common-will variant of positivism; Positivism (general); Voluntarist variant of positivism Enforcement of international law. See Just-war doctrine, medieval; Just-war ideas, ancient; Just-war ideas, modern; Measures short of war; Sanctions; United Nations (UN): enforcement action by Engels, Friedrich, 286 England, 55–56, 57, 58–59, 86, 126, 134. See also Common law: English; Great Britain Equality of states, principle of, 2, 39, 324, 343, 344, 353, 430; Mencius on, 22; Wolff on, 187; Vattel on, 197; in positivist doctrine, 244–245; at the Hague Peace Conferences, 324, 327; Barbosa on, 326; Strupp on, 365; in socialist doctrine, 384, 386; in Nazi doctrine, 387; post–World War II, 412; and the Third World, 433. See also Inequality of states; Sovereignty, state

609

Erasmus of Rotterdam, 93, 118 Ethiopia, 336–337, 390, 447 Eugenius III, Pope, 103 European Court of Human Rights, 415, 447, 467, 470 “External state law,” international law as, 237–238 Extradition, 14, 19, 33, 36–37, 233, 234, 350, 363, 472 Extraterritoriality, 315–317, 352, 384; attack on, 352, 358–359, 433. See also Capitulations; Inequality of states Fabian socialists, 430 Fairness, concept of, 452– 453. See also Common juridical conscience; Justice, sense of; Natural law Falk, Richard A., 431 Falkenberg, John, 104 Fascist view of international law, 386 Fassbender, Bardo, 454 Fauchille, Paul, 302 Feminism, 462– 464 Fenwick, Charles, 351, 372 Fetial law, Roman, 32–33, 171 Feudal law, 144, 318–319 Feudal system, European, 52, 85, 108, 205–206, 271. See also Feudal law Field, David Dudley, 322 Fiore, Pasquale, 274, 282, 303, 306, 307, 322, 347, 413 Flamininus, Titus Quinctius, 33–34 Force, prohibition against. See Use of force, prohibition against Foreign ministry legal advisers, 232, 306, 308, 309, 315, 380, 408, 415, 459 Formosa, 334–335 Fragmentation of international law, concern over, 455, 457, 460 France: medieval, 51, 55–56, 57, 58, 77, 82, 86, 98; early modern, 126, 127, 139, 150, 190, 202, 270; Revolutionary, 206–210, 211, 213, 221; nineteenth century, 272, 291, 298, 306, 312, 316, 334–335, 336; interwar, 345–346, 351, 358, 361, 362, 366; post–World War II, 397, 400 Francis I (of France), 127, 150–151

610

Index

Franck, Thomas, 452– 453, 458, 473 Fraternity Decree, 208 Frederick I, Emperor, 75–76 Frederick II (of Prussia), 183 Frederick II, Emperor, 50–51, 55, 56–57, 455 Freedom of the air, rejection of, 361 Freedom of the seas, 361; Grotius on, 133–134, 135, 204; opposition to, 134–135; Bynkershoek on, 192; Bluntschli on, 266–267. See also Law of the sea; Territorial waters Freedom of trade: natural-law right of, 134; liberalism and, 270–273, 371; and globalization, 467 “Free ships make free goods” doctrine, 202–203, 207, 319–320. See also Neutrality Freitas, Serafim de, 134 French Revolution, 205, 206–210, 221, 285, 286, 364 Friedmann, Wolfgang, 343, 374, 389, 425, 427, 451 Fukuyama, Francis, 452 Funck-Brentano, Théophile, 217, 229–230 Functionalism, 285, 288–289, 374, 377, 429, 453. See also International organizations; Solidarism Fundamental rights of states, 245–247, 249, 274, 285; opposition to, 246, 375. See also Positivism (general): mainstream; Principle of freedom Gaius, 45, 47 Gaps in the law, 248, 266, 322, 460. See also Codification of international law; Contractual character: of customary international law GATT. See General Agreement on Tariffs and Trade Gautama, 17 General Agreement on Tariffs and Trade, 411, 445– 446. See also World Trade Orga nization General Postal Union, 288–289 Geneva Conventions, 320, 324, 361, 402– 403, 443, 469, 470; grave breaches

of, 409; Additional Protocols (1977), 435. See also War crimes Genocide, 343, 402, 432, 445, 448– 450, 470, 475. See also Genocide Convention Genocide Convention, 402, 404, 445, 448. See also Genocide Gentili, Alberico, 149, 163, 469 German Confederation, 198. See also Germany German Society of International Law, 302 Germany: medieval, 50, 53, 56; early modern, 139, 183, 193–194; in the nineteenth century, 232, 236, 237, 238, 285, 287, 305, 324, 336; in the interwar period, 344, 345–346, 348, 349–351, 356–357, 358, 360, 363, 364, 380, 386, 387–390, 394; post–World War II, 395, 397–398, 415, 444, 454, 456. See also German Confederation; Holy Roman Empire; Nuremberg Trials Gide, Charles, 291 Gierke, Otto von, 237, 239 Giles of Rome, 101 Global administrative law, 458, 466. See also Constitutionalism Globalization, 467– 468. See also Freedom of trade; Liberalism; Solidarism Gorbachev, Mikhail, 443 Gratian, 83 Great Britain, 208, 211–212, 246–247, 272, 288, 298–299, 306, 307–308, 312, 312–313, 316, 317, 318, 320, 329, 335–336, 347, 358, 390, 392, 397, 400. See also England; Scotland Greece: ancient, 7–8, 13, 25–31, 33–34, 35, 42– 44, 75, 78, 117, 193, 311, 328; modern, 278, 335–336, 347–348, 356, 360 Grégoire, Henri, 208–210 Gregory VII, Pope, 56, 58 Gregory IX, Pope, 55 Gros, André, 397 Grotian school, 170–173, 178, 180, 182, 183, 184, 191, 199, 221, 262–264, 265, 309; and empirical variant of positivism, 226, 227–228. See also Naturalist school Grotius, Hugo, 139, 141, 143, 144, 147, 153, 167, 184, 191, 195, 219, 256–257, 258, 262,

Index

305, 314, 381; on freedom of the seas, 132–134, 134–135, 204; on alliances with pagans, 151; on natural law, 160, 174; on the voluntary law of nations, 160–163, 186, 187, 247–248; on war, 163–165; impact of, 165–166, 175, 188, 192; and the Grotian school, 170–173 passim; criticism of, 177. See also Grotian school; Naturalist school Grundnorm. See Basic norm (Vienna School) Guatemala, 116, 275, 333 Guillaume, Gilbert, 470– 471 Gürke, Norbert, 388 Gustavus Adolphus, 143, 159, 184 Hague Academy of International Law, 364, 378, 388, 414, 420, 423, 451– 452, 453 Hague Conventions, 324–325, 327–328. See also Hague Peace Conferences; International Prize Court, proposed; Permanent Court of Arbitration Hague Peace Conferences, 300, 324, 344; First, 217–218, 323–325, 330; Second, 319, 325–328, 332–333, 338 Hague Rules. See War, conduct of Haiti, 444– 445 Hall, William Edward, 224, 229, 246, 311, 351, 365 Halleck, Henry W., 263, 308, 323 Hanafite School, 95–96, 98 Hanseatic League, 207 Harcourt, William, 307 Hardin, Garrett, 455– 456 Haroun al-Rashid, 95, 96 Harrison, Benjamin, 307–308 Hart, H. L. A., 371 Harvard Research project, 363–364 Hattusilis III (Hittite ruler), 36 Hautefeuille, Laurent-Basile, 263 Heffter, August, 228, 239, 246, 304, 307 Hegel, Georg Friedrich, 236–237, 238, 452. See also Neo-Hegelianism Henkin, Louis, 423 Henry IV, Emperor, 56, 57–58 Henry VII, Emperor, 77 Henry of Portugal, Prince, 107, 109

611

Henry of Segusio. See Hostiensis Herder, Gottfried, 280 Hermogenian, 47– 48, 63, 64 Herodotus, 26–27, 30, 36 Hershey, Amos S., 292 Hesiod, 7 Higgins, Rosalyn, 464 Hirohito, Emperor, 399 Historical school, 237, 263, 265, 267, 268; and voluntarist variant of positivism, 237, 253; hostility to natural law, 237, 279; affinity to positivism, 244, 251, 279–280; and nationality school, 279–280; and solidarism, 293; and Nazism, 387 Hitler, Adolf, 387, 395 Hittites, 15 Hobbes, Thomas, 62, 166–170, 173, 174, 175, 181, 188, 235, 236, 242, 246, 250, 261, 417 Holland, T. E., 149, 332 Holy Roman Empire, 50–51, 52, 94, 139, 188, 190, 193, 208; and Italian communes, 75–77 Honduras, 275, 325, 333, 409– 410 Honorius III, Pope, 58, 131 Hostages, 18, 86. See also Tehran hostages incident Hostiensis, 101 Hudson, Manley O., 348, 356, 363, 371–372, 377, 401, 415, 423, 451 Huerta, Victoriano, 275 Hughes, Charles Evans, 355–356 Humanitarian intervention, 124–125, 164, 245, 278–279, 282–283, 296–297, 472– 474 Human rights: and natural law, 69; and treaties of amity and commerce, 202; liberalism and, 218, 273–274, 279, 344, 371, 414, 422– 424; UN and, 396, 402– 404, 411– 412, 464; and post-World War II peace treaties, 406; criticism of, 421, 456, 461; solidarism and, 425, 428– 429, 430, 452, 457; case law on, 446– 447; regional initiatives, 447; feminism and, 462– 463; and national traditions, 467; and universal jurisdiction,

612

Index

Human rights (continued) 470, 471. See also Aliens, treatment of; Humanitarian intervention; Humanrights conventions; Impunity; Minorities, protection of; Racial equality; Refugees; Self-determination; Women, position of Human Rights Committee, 412, 446– 447 Human-rights conventions, 403– 404, 446– 447, 462; Convention on the Status of Refugees, 403; Covenant on Civil and Political Rights, 411– 412, 423– 424, 436, 446– 447; Convention against Torture, 447, 470 Humboldt, Alexander von, 263 Hume, David, 226, 271 Humphrey, John P., 402 Hungary, 131, 359–360, 406– 407. See also Austria-Hungary Hurst, Cecil, 325, 347, 355, 356 Hybrid tribunals, 475 Ibn Rushd. See Averroes I.C.J. See International Court of Justice (World Court) Immunity, diplomatic, 472; violations of, 9, 20, 335, 441– 442; Kautilya on, 16; Suárez on, 157–158; Zouche on, 171, 191–192; Grégoire on, 209; Institute of International Law on, 323; International Law Commission on, 413 Immunity of government officials, 472, 474– 475 Immunity of states from execution measures, 338 Imperialism: in the New World, 92–93, 107–131; in the Indian Ocean world, 131–135; in the nineteenth century, 318–319, 321. See also Capitulations; Crusades; Extraterritoriality; Inequality of states; Mixed courts, Egyptian Imperium, 204–205 Impunity, 474– 475. See also International criminal law Incan Empire, 92, 107, 114, 124–125 India: ancient, 13, 15–17, 37–38; modern, 344, 433, 473

Indian Ocean world, 8, 111, 131–132 Indians: Chichimec, 114; Delaware, 130 Mohegan, 130. See also Aztec Empire; Incan Empire Indonesia, 344, 433 Inequality of states: Confucianism and, 21–22, 39– 41, 59– 60; ancient Greece and, 27, 35; in the nineteenth century, 251–252, 299–300, 311, 315–317, 375. See also Barbarian states; Civilized states; Equality of states, principle of; Extraterritoriality; Savage states; Treaties (general): unequal Infidels, alliances with. See Alliances, Christian-pagan Innocent III, Pope, 55–56, 57, 77 Innocent IV, Pope, 50–51, 55, 56–57, 101, 102, 104, 113, 116, 124, 144, 251, 445 Innocent X, Pope, 139 Institute for International Law (Kiel), 305, 389 Institute of International Law, 279, 312, 313–314, 324; founding of, 301; and codification, 323 Institute of International Relations (Moscow), 419– 420 Institute of State and Law, 408, 421, 422 Inter-American Court of Human Rights, 423, 447 International Bank for Reconstruction and Development. See World Bank International Center for the Settlement of Investment Disputes, 446 International Commission for Air Navigation, 361 International Committee of the Red Cross. See Red Cross, International Committee of the International community. See Community, international International Court of Justice (World Court), 396, 401, 407, 410– 411, 412, 419, 422, 425, 427– 428, 431, 464; and Cold War, 405– 407; increased activity of, 440– 444. See also International Court of Justice (World Court) cases

Index

International Court of Justice (World Court) cases: Nuclear Weapons, 400, 442– 443; Conditions of Admission, 405– 406; Competence of the [General] Assembly for Admission, 406, 425; Interpretation of the Peace Treaties, 406– 407, 425; Military Activities in Nicaragua, 409–410, 442; Corfu Channel, 410– 411; Certain Expenses of the UN, 411; Namibia, 411; Status of South West Africa, 411; Reservations to the Genocide Convention, 413– 414, 455; AngloNorwegian Fisheries, 419; Asylum, 419; Barcelona Traction, 432; Western Sahara, 436; East Timor, 436; Consequences of the Wall, 436, 443; Unilateral Declaration of Independence of Kosovo, 437– 438; Tehran Hostages, 441– 442; Continental Shelf (Libya/Malta), 441; Continental Shelf (Libya/Tunisia), 441; Gulf of Maine, 441; Congo v. Uganda, 442; Genocide (Bosnia v. Serbia), 445; Genocide (Bosnia v. Croatia), 445; Arrest Warrant, 470– 471, 472; Use of Force (Serbia v. NATO States), 474 International courts and tribunals, ad hoc. See Arbitration; Arbitration (cases); International Center for the Settlement of Investment Disputes; Nuremberg Trials; Permanent Court of Arbitration; Rwanda Crimes Tribunal; Tokyo Trials; Yugoslavia Crimes Tribunal International courts and tribunals, standing. See African Commission on Human and Peoples’ Rights; African Court on Human and Peoples’ Rights; European Court of Human Rights; Inter-American Court of Human Rights; International Court of Justice (World Court); International Criminal Court; International Tribunal for the Law of the Sea; Permanent Court of International Justice (World Court) International Criminal Court, 440, 448– 451, 464; early proposals for, 362, 403; backlash against, 474– 478. See also Rome Statute; Rwanda Crimes Tribunal; Yugoslavia Crimes Tribunal

613

International criminal law. See Aggression; Crimes against humanity; Genocide; International Criminal Court; Nuremberg Trials; Rome Statute; Rwanda Crimes Tribunal; Tokyo Trials; Yugoslavia Crimes Tribunal International Criminal Tribunal for Rwanda. See Rwanda Crimes Tribunal International Criminal Tribunal for Yugoslavia. See Yugoslavia Crimes Tribunal International Labor Orga nization, 356, 375, 396, 425 International Labour Office, 289 “International law” (expression), 158, 163, 181, 210–211, 237–238; ius inter gentes, 171. See also Ius gentium; “Law of nations” (expression); Transnational law, concept of International law, teaching of, 304–305 International law as a profession, 299, 300–303, 308, 339 International Law Association, 301, 412; on the Pact of Paris, 393–394 International Law Commission, 401, 412– 414, 440, 457, 464 International-law spectrum, 180–182, 183, 184, 194, 213, 221 International Maritime Committee, 289 International minimum standard, 273–274; opposition to, 276–277. See also Aliens, treatment of; Calvo Clause; Calvo Doctrine International Monetary Fund, 396, 464 “International orga nization” (expression), coining of, 289 International organizations: nineteenth century, 288–289; interwar period, 377; post–World War II, 396, 457, 458, 464. See also Constitutionalism; Functionalism; Solidarism International Prize Court, proposed, 332, 354 International Radiographic Union, 289 International relations, discipline of, 371–372. See also Realism: in international-relations theory

614

Index

International Settlement of Shanghai, 317 International Telegraphic Bureau, 289 International Trade Orga nization, proposed, 396, 411. See also World Trade Orga nization International Tribunal for the Law of the Sea, 446 Invincible ignorance, 147 Iran, 441– 442, 446. See also Persia Iran–United States Claims Tribunal, 446 Iraq, 344, 360, 444. See also Mesopotamia, ancient Ireland, 129 Isidore of Seville, 63– 65, 67, 81, 153, 154, 155, 156, 158, 162, 163 Islamic international law: contrast to Western international law, 60, 94–95; doctrinal writing, 94–97; state practice, 97–100. See also Muslim and Christian states, relations between; Ottoman Empire Islamic religion, 93, 94, 96–97. See also Islamic international law Isocrates, 30–31, 35 Israel, 436, 443, 472 Italy: ancient, 13, 31; medieval, 51, 72–73, 74, 75–77, 81, 87, 89, 90, 94, 105–106, 150, 169; modern, 280–282, 284, 285, 302, 306–307, 336, 348, 358, 364, 386, 388–389, 390 Ius cogens. See Peremptory norms Ius commune, 53, 60, 72–74, 91 Ius gentium, 9, 79, 118, 170, 171, 379; in Roman law, 45– 49, 60, 62– 63, 80, 87, 128, 155–156, 171, 175; relation to natural law, 53, 63– 67, 69, 80, 141, 148, 151–166; and ius commune, 72, 73–74. See also Customary international law; Customary practices of states; Grotian school; Just-war doctrine, medieval; Voluntary law of nations Ivory Coast, 450– 451 Jackson, Robert H., 394, 397–398 James I (of England), 204 Japan, 38, 289, 324, 337, 393, 394, 404; as a barbarian state, 311–312; reception of

Western international law, 314–315; extraterritoriality in, 317, 358; warcrimes trials, 399– 400 Jay Treaty, 211–212, 328, 329 Jeannin, Pierre, 204 Jellinek, Georg, 240, 242, 290, 303, 322 Jenks, C. Wilfrid, 425 Jessup, Philip, 421, 427– 428, 451 Jhering, Rudolf von, 240 Jiang Zemin, 472 Jihad, 97 John, King (of England), 55, 56, 57 John II (of France), 86 John XXII, Pope, 55, 57, 106 John of Legnano, 84, 85, 89, 102 John of Paris, 78 John of Salisbury, 60 Johnson, Samuel, 212 Johore, Sultan of, 151 Journals, international-law, 230, 300–302, 389, 405 Judaism, 34. See also Nazis: persecution of international lawyers Juntas, Spanish, 112, 118. See also Valladolid debate Jurisprudence, systematic. See Systematic jurisprudence Justice, denial of, 162–163, 202. See also Aliens, treatment of; International minimum standard Justice, sense of, 2, 7, 8, 10 11–13, 34, 194, 262, 292; in ancient Greece, 27–28, 30–31, 42; in ancient Rome, 32–34; in medieval Europe, 77, 101; in the nineteenth century, 265–266; in interwar period, 379–380; post–World War II, 422, 423. See also Common juridical conscience; Fairness, concept of; International minimum standard; Natural law; Reciprocity Justinian, 47, 73. See also Roman law Just-war doctrine, medieval, 53, 67–72, 81, 83, 84, 96, 151–152, 198, 202; reprisals and, 88; in New World context, 93, 108, 112, 115–117, 124, 129; contrast to Islamic law, 96–97; and crusading, 101–102; in Indian Ocean context, 133;

Index

decline of, 144, 147–150; Grotius on, 164; contrasted with mainstream positivist view of war, 254–255; and U.S. “nonbelligerency,” 394. See also Dilatatio theory; Just-war ideas, ancient; Just-war ideas, modern Just-war ideas, ancient, 7, 9–10; in Rome, 9–10, 31–34; in Sumer, 14; in China, 20, 23; in Greece, 27–29. See also Just-war doctrine, medieval; Just-war ideas, modern Just-war ideas, modern, 191, 206–208, 210, 231, 312–313; Reagan Doctrine, 409; Vyshinsky Doctrine, 422. See also Just-war doctrine, medieval; Just-war ideas, ancient; National liberation, wars of Kaltenborn, Carl von, 264, 293 Kambanda, Jean, 449– 450 Kant, Immanuel, 187–189, 199, 225, 240, 241. See also Neo-Kantianism Karl Ludwig (of Rhineland Palatinate), 175 Kaufmann, Erich, 239, 256, 339, 365, 380–381, 387, 389, 415 Kautilya, 16, 25 Kellogg, Frank, 355–356, 361 Kellogg-Briand Treaty. See Pact of Paris Kelsen, Hans, 367–371, 372, 376, 379, 380, 388, 389, 397–398, 398–399, 415, 418, 419, 421, 451, 456, 465. See also Vienna School Kennedy, David, 459, 460, 461 Kent, James, 307 Kenya, 450– 451, 477 Khitan, state of, 41 Kingsbury, Benedict, 458 “Kingship,” Sumerian, 13–14, 18 Kipling, Rudyard, 334 Kissinger, Henry, 471– 472 Klabbers, Jan, 454 Klüber, Johann Ludwig, 217 Knights of St. John, 106 Kong Futze. See Confucius Koo, Wellington, 348, 392–393, 415, 451 Korea, 40, 299, 325, 335; North, 344. See also Korean War

615

Korean War, 404, 444 Korovin, Yevgeny A., 383–385, 405, 407– 408, 421, 451 Koskenniemi, Martti, 459, 460, 465 Kosovo crisis, 439; independence declaration, 437– 438; NATO bombing, 473– 474 Kovalev, Sergei, 407, 408, 409, 444 Krylov, Serge, 401, 414, 419–420 Kuo, 40– 41. See also Equality of states, principle of; Inequality of states Kushan Empire, 37–38 Kuwait crisis, 444 Lagash, 14 Laissez faire, 205–206, 270, 456. See also Freedom of trade; Liberalism Lammasch, Heinrich, 304, 324, 325, 336, 339, 347 Lansing, Robert, 306, 347, 349, 350 La Pradelle, Albert Jouff re de, 295–296, 297, 303, 348, 349 Lars Tolumnius, 9, 441 Las Casas, Bartolomé de, 120–123, 125 Lasson Adolf, 238–239, 250, 347, 365 Lasswell, Harold, 377–378, 424, 428– 430, 431, 451, 452 Lateran Council: Second, 83–84, 320; Third, 83, 106; Fourth, 106 Lausanne, Treaty of, 350, 356, 358 Lauterpacht, Hersch, 372–373, 382, 392, 393, 397, 398, 401, 403, 413, 414, 415, 421– 422, 422– 423, 447, 451 Law merchant, medieval, 80, 86–87, 201 “Law of nations” (expression), 45, 139, 156, 158, 160, 161, 170–171, 173. See also “International Law” (expression); Ius gentium; Voluntary law of nations Law of the sea: in medieval Europe, 80–82; in early modern Europe, 203–205; conventions on, 413, 440– 441; International Tribunal for the, 446, 464. See also Freedom of the seas; “Free ships make free goods” doctrine; Letters of marque; Piracy; Privateering; Prize law; Visit and search on the high seas; War, conduct of: maritime

616

Index

Lawrence, Thomas J., 229, 347 Law-treaties, 232–234, 242, 247, 257, 384. See also Common-will variant of positivism; Contract-treaties; Legislation, international; Treaties (general): contractual character of League of Nations, 291, 343, 351–352, 354; draft ing of the Covenant, 348, 352–353; treaty revision, 352; sanctions, 352, 390, 391–393; election of World Court judges by, 354; and Optional Clause, 356; protection of minorities by, 359–361, 390; codification conference, 363; decline of, 390. See also United Nations (UN) Leagues of states, Chinese, 19, 23, 24 Lebensraum doctrine, 388–389 Le Fur, Louis, 378–379, 465 Legalism, Chinese, 23–24, 223 Legal realism, 459 Legislation, international, 300, 377; customary international law as, 153, 478; voluntary law of nations as, 187; law-treaties as, 232–234; multilateral treaties as, 300, 323–324, 361–362. See also Codification of international law; Customary international law: legislative view of; Declarations: of Paris, of London, of St. Petersburg; Geneva Conventions; Hague Conventions; Human-rights conventions; Treaties, multilateral Leibniz, Gottfried Wilhelm, 190 Leipzig war-crimes trials, 350–351 Lelong, Père, 191 Lemkin, Raphael, 402 Lenin, Vladimir, 382–383 Léonard, Frédéric, 190 LeRoux, Pierre, 285 Letters of marque, 89, 90, 202. See also Letters of reprisal; Privateering; Reprisals Letters of reprisal, 88–90. See also Reprisals Liberalism: in the nineteenth century, 218, 260, 269–279, 309, 396; and natural law, 269, 270–271, 273; and positivism, 275–277; and the nationality school, 283;

and solidarism, 287, 293–294, 373; in the interwar period, 344, 371–373; attacks on, 386, 391–393, 421–422, 461; post– World War II, 414, 415, 422– 424, 451, 462– 464. See also Collective security; Freedom of trade; Human rights Liberia, 475 Lieber, Francis, 301, 303, 323 Lincoln, Abraham, 323 Liszt, Franz von, 262, 304, 307, 346, 347, 351 Lithuania, 103–105 Livy (Titus Livius), 9, 29, 31, 32–33 London Naval Conference, 328 López de Tovar, Gregorio, 123–124 Lorenz, Konrad, 12 Lorimer, James, 262, 265, 267–269, 289, 293, 301, 303, 311 Lotus case, 366, 369 Louis VII (of France), 55 Louis XIII (of France), 159 Louis XVI (of France), 208 Louis of Bavaria, 55, 57, 78, 223 Luis de la Cerda, 103, 108 Lusitania, sinking of, 357 Luxembourg, 350 Lyon, Council of: First, 50–51, 55, 57–58; Second, 90 Mabillon, Jean, 190 Mably, Gabriel Bonnot, Abbé de, 193 Machiavelli, Nicolo, 144–145, 167 Maine, Henry, 263 Malawi, 478 Malta, 441 Mamiani della Rovere, Terenzio, 282–283, 284 Mancini, Pasquale, 148, 281–282, 284, 301, 303, 304, 306–307, 387 Mandate, League of Nations, over South West Africa, 411 Manhattan School, 427. See also New Haven School Manuel I (of Portugal), 132 Manuel Comnenos, Emperor, 98 Maritime law. See Law of the sea Maritime war. See War, conduct of

Index

Marshall Plan, 428 Marsilius of Padua, 78–79, 223 Martens, Fedor Fedorovich, 257, 274, 289, 306, 308–310, 324, 325, 326, 330–331, 336, 347, 408 Martens, Georg Friedrich von, 165, 191, 198–201, 209–210, 212, 213, 221, 227, 228, 263, 264, 305, 309, 385 Martens Clause, 325 Martin, William A. P., 313–314 Martin V, Pope, 105 Marx, Karl, 382 Marxism, 384, 420 Mazzini, Giuseppe, 280–281, 282, 284, 387 McCarthy, Joseph, 427 McDougal, Myres S., 428– 430, 452, 465 McNair, Arnold, 372–373, 392, 401, 453 Measures short of war, 334–337, 345. See also Porter Convention; Use of force, prohibition against Melian Dialogue, 28 Mencius, 22–23, 24, 26. See also Confucianism Mendlovitz, Saul, 431 Mengzu. See Mencius Mesopotamia, ancient, 13–15, 25 Mexico, 114, 117, 121, 275, 277, 317, 324, 336, 338, 357–358 Mill, John Stuart, 275–276, 278–279, 283, 305, 314, 318, 409 Miller, David Hunter, 348 Milošević, Slobodan, 439, 475, 477 Minorities, protection of: in interwar period, 359–361, 390; liberalism and, 391; and self-determination, 436– 437 Minucchi da Pratovecchio, Antonio, 108 Miranda, Francisco de, 263 Mitrany, David, 377 Mixed-claims commissions, 300, 328, 329; under Jay Treaty, 211–212; regarding Venezuela debts, 336; in interwar period, 357–358; post–World War II, 411, 446. See also Arbitration Mixed courts, Egyptian, 316, 358–359, 433. See also Consular jurisdiction; Extraterritoriality Mohism, 23

617

Mohl, Robert von, 240 Monism: in voluntarist variant of positivism, 238; Kelsen on, 370, 380; Lauterpacht on, 373; Scelle on, 376, 454; Kaufmann on, 380. See also Constitutionalism; Dualist theories Moore, John Bassett, 303, 304, 306, 355, 361, 391 Morgan, Lewis Henry, 311 Morgenthau, Hans, 389 Moser, Johann Jakob, 193–194, 199 Most-favored-nation clause, 203, 272–273, 414 Moti. See Mohism Mo-tzu. See Mohism Moynier, Gustave, 301 Mozi. See Mohism Muhammad, Prophet, 95, 98 Mullerson, Rein, 443 Muslim and Christian states, relations between: hostile, 96–97; pacific, 97–99, 105–107; military alliances, 150–151, 316. See also Capitulations; Extraterritoriality; Islamic international law Mussolini, Benito, 386 Namibia, 411, 435 Napoleon I. See Bonaparte, Napoleon Napoleonic Wars. See Wars: French Revolutionary Nationality, dual, 363 Nationality school, 260, 261, 279–285, 295; and historical school, 279; and natural law, 279, 280, 284; criticism of, 284–285; and solidarism, 287; and socialism, 384, 421– 422; and Nazism, 387; and self-determination, 437 Nationalization of property, 434, 446. See also Calvo Clause; Calvo Doctrine National liberation, wars of, 422, 435; liberalism and, 278. See also Combatant status; Just-war ideas, modern Nationals abroad, protection of: in the nineteenth century, 335–337; and Hague Codification Conference, 363; International Law Commission on, 414. See also Calvo Clause; Calvo Doctrine

618

Index

Naturalist school, 170, 173–178, 180, 181, 182, 183, 184, 310 Natural law, 7–8, 10, 219, 248, 292, 305, 309, 310; in ancient Greece, 42– 44; organicist approach to, 43, 45, 60, 61– 62, 64, 265, 267, 375, 379–380; in ancient Rome, 45, 46– 49; in medieval Europe, 51–53, 56, 59– 63, 72, 73–74, 80, 82, 83, 89, 91, 245–246; rationalist approach to, 60, 61– 63, 66, 154, 160, 174, 189, 192–193, 201, 205, 209, 213, 257, 262, 264, 268, 322, 379, 465; and just-war doctrine, 67, 69; criticism of, 79, 209; in the context of the New World, 93, 116, 117–118, 123, 124, 126; absence in Islamic world, 94; position of pagans in, 101–102, 106–107; and freedom of the seas, 133–135; in early modern period, 140–141, 144, 146–147, 149, 151–166, 179, 180, 181, 182–189, 192–193, 196–197, 199, 200, 203–204, 227, 245, 256–257, 273; Hobbes’s challenge to, 167–168, 169–170, 246; as a critical philosophy, 189–190, 195–196, 205–206, 208–209, 213, 218, 256–257, 258, 322; in the nineteenth century, 218, 228, 235, 260–269, 339; rejection of by historical school, 237; liberalism and, 269, 270, 271; solidarism and, 290, 293, 294, 297, 375; and relations with savage states, 318; and Vienna School, 367, 368, 369; in interwar period, 378–382; rejection of by socialists, 384; post–World War II, 451, 465– 466. See also Common juridical conscience; Dilatatio theory; Grotian school; Historical school: hostility to natural law; International minimum standard; Ius commune; Ius gentium: relation to natural law; Naturalist school; Natural sociability, principle of; Necessary law of nations; Necessity; Positivism (general): rejection of natural law by Natural-slavery theory, 35, 117–119, 121, 122 Natural sociability, principle of, 26, 62, 156, 174, 181–182, 182–183, 250, 269,

285, 465; opposition to, 167, 175, 188; applied to states, 186, 196, 292. See also Solidarism Nazis: view of international law, 387–389; persecution of international lawyers, 389–390 Necessary law of nations, 184–185, 186, 187, 197, 266. See also Natural law Necessity, 28–29, 168, 197–198, 246–247; and natural law, 28, 64, 184–185, 186, 187, 197, 264, 266, 292; military, 70–71, 320; and humanitarian intervention, 297 Neo-Hegelianism, 237–239, 356, 380, 386. See also Voluntarist variant of positivism Neo-Kantianism, 241–243, 250, 256, 261–261, 453; liberalism and, 276. See also Kant, Immanuel Netherlands, 126, 148, 202, 278, 350; Southern, 207 Neutrality, 81, 191–192, 207, 263, 264, 288, 313, 314, 327, 328, 329, 350, 390; in ancient China, 21; in ancient Greece, 28; in medieval just-war doctrine, 71; in Islamic law, 96; Vattel on, 197–198; in treaties of amity and commerce, 202–203; Scott on, 212–213; Geneva arbitration (1872), 298–299, 329, 350; in Declaration of Paris, 319–320; Hague Conventions on, 327; Declaration of London, 328; Harvard Research project on, 363–364; and collective security, 372, 374, 391, 392; and “nonbelligerency,” 393–394. See also Blockade; Contraband of war Neutralization of waterways, 288. See also Neutrality New Deal, American, 377, 427, 428 New Haven School, 428– 431, 452, 453, 458, 459, 461; criticism of, 431, 461; and constitutionalism, 454, 457– 458; and global administrative law, 458. See also Lasswell, Harold New international economic order, 434 New Laws (of 1542), 119 “New stream” thought. See Critical legal studies

Index

Nicaragua, 275, 333, 335, 409– 410, 442 Nicholas V, Pope, 109 Nicolai, Helmut, 387–388 Niemeyer, Theodore, 302, 305 Nine-power Conference, 359. See also Extraterritoriality Nishi Amane, 314 Nobel Peace Prize, 219, 291, 301, 302, 327, 402 “Non-belligerency,” U.S. policy of, 393–394. See also Pact of Paris Nonintervention, 78, 264, 294, 412, 430; Mencius on, 22; Pufendorf on, 176; Vattel on, 197; in mainstream positivism, 244–245, 276–277, 473; liberalism and, 278–279, 295; nationality school and, 282–283, 295; criticism by solidarists, 294–297; socialist writers on, 386; and Third World, 433. See also Brezhnev Doctrine; Calvo Doctrine; Equality of states, principle of; Humanitarian intervention; Reagan Doctrine Nootka Sound incident, 207 Nuclear weapons, 343; World Court on, 442– 443 Nuremberg Trials, 395, 397–399, 402, 415, 440, 448– 449, 468. See also Tokyo Trials Nys, Ernest, 262, 311 Oaths, 7; and treaty-making, 14, 15, 18; papal dispensations from, 57; and Italian communes, 75; military, 150 Occupatio theory, 128, 129, 130, 133, 204 Occupied Territories, Israeli, 436, 443 Occupied territory, 403 Ockham, William of. See William of Ockham Oléron, Laws of, 81 Olivart, Marquis de, 302, 304–305 Opinio juris, 252–253, 319 Oppenheim, Lassa, 230–231, 246, 255, 303, 304, 323, 339, 347, 351 Optional Clause, 354, 356, 410, 474 Organic conception of the state, 60, 79. See also Real personality of the state Orga nization of American States, 407 Otto I, Emperor, 53

619

Otto IV, Emperor, 55 Ottoman Empire, 278, 296, 324, 349, 359–360, 397; alliance with France, 150; as a barbarian state, 311, 312; capitulations, 316, 358; Armenian massacres, 350, 397. See also Turkey, post-Ottoman Otto of Brunswick, 58 Owen, Robert, 291 Oxytocin, 12, 36, 479 Pacta sunt servanda, 168, 172, 230, 235–236, 241, 264, 365, 369. See also Common-will variant of positivism; Treaties (general) Pact of Paris, 361–362, 393, 394, 428, 436; at the Nuremberg and Tokyo Trials, 398–399; UN Charter and, 400. See also Porter Convention Pakistan, 433, 473 Pal, Radhabinod, 399 Palacios Rubios, Juan López de, 112–113, 118 Panama Canal, 288 Papacy, Catholic, 51, 52, 55–59, 78, 103, 106–107, 108, 110, 124, 139. See also Canon law; Christianity Papal grants as basis of title, 110, 112–113, 115, 123, 126, 132, 134; criticisms of, 115, 127, 133 Paris Peace Conference, 347–350 Parker, Peter, 312 Parochial altruism, 11–13. See also Reciprocity Parthia, 34 Pashukanis, E. B., 384–385 Pastry War, 336 Paul III, Pope, 118–119 Paulus, Andreas, 454 Pauncefort, Julian, 288, 306, 324 Paz, Matías de, 112–113 P.C.A. See Permanent Court of Arbitration P.C.I.J. See Permanent Court of International Justice (World Court) Peaceful coexistence, 412 Penn, William, 130 Pepin (of France), 98 Peremptory norms, 267, 432

620

Index

Perestroika, 443 Pérez de Cabrera, Juan, 116 Perfection, quest for, 184, 189, 196 Permanent Court of Arbitration, 330–331, 354, 446 Permanent Court of International Justice (World Court), 353–357, 359, 360, 380, 382; United States and, 371–372. See also Permanent Court of International Justice (World Court) cases Permanent Court of International Justice (World Court) cases, 356–357, 360–361; Wimbledon, 346, 356; Austro- German Customs Union, 356–357, 380; Lotus, 366, 369 Permanent Sugar Commission, 289 Persia: ancient empire, 10, 30; alliance with Holy Roman Empire, 150; as a barbarian state, 311–312; extraterritoriality, 359. See also Iran Persistent-objector principle, 418– 419 Peru, 92, 124–125, 306, 317, 406 Pessôa, Epitácio da Silva, 348, 355 Peters, Anne, 454 Philip I (of France), 58 Philip II (of France), 56 Philip II (of Spain), 121, 133, 148 Philip IV (of France), 57, 58–59 Philip of Swabia, 58 Philippines, 110 Phillimore, Robert, 307, 311 Physiocracy and physiocrats, 205–206, 270–271. See also Freedom of trade; Liberalism “Pie powder” courts, 87 Pillet, Antoine, 262, 302, 378 Pinochet, Augusto, 472 Piracy, 89, 335, 469, 470. See also Universal jurisdiction Pizarro, Francisco, 92, 123, 124 Plato, 11, 25, 26, 27, 35, 42 Pliny, Elder, 14 Plutarch, 11, 44 Poland, 58, 103–105, 343, 346, 348, 356, 360, 380, 390 Politis, Nicolas, 303, 347–348, 349, 372, 374–375

Polybius, 33 Pompey (Cneius Pompeius Magnus), 469 Porter, Horace, 338 Porter Convention, 338. See also Pact of Paris; Use of force, prohibition against Portugal, 57, 58, 107, 108–111, 115, 126–127, 131–134, 153–154 Positive law, 42, 154–155, 181, 223, 375; Chinese legalism, 23–24, 223; of nations, 156, 175, 181, 262–263, 263–264, 267, 322, 379–381, 403. See also Grotian School; Legislation, international; Positive philosophy; Positivism (general); Pragmatist writers of the seventeenth and eighteenth centuries; Treaties (general); Treaties, bilateral; Treaties, multilateral Positive philosophy, 218, 222–223, 224, 256. See also Positive law; Positivism (general) Positivism (general): and Chinese legalism, 23–24, 223; precursors of, 79, 146, 162, 165–166, 194, 200, 201; rejection of natural law by, 218, 221–222, 223–225, 228, 229, 230–231, 239, 245, 248, 251, 256, 257, 258; in the nineteenth century, 221–259, 260–261, 261–262, 279, 294, 299–300, 310–311, 318, 319, 334, 338, 455; mainstream, 222, 243–259, 260–261, 268, 295, 322; antirationalist ethos of, 223, 238, 371, 416, 424; attacks on, 258–259, 267–269, 309, 339, 351, 373, 375–376, 382, 423, 426, 427, 465; and liberalism, 275–277, 278, 423– 424; and the historical school, 279; and the nationality school, 279–280; and solidarism, 285, 286, 290, 294, 374, 424, 426, 427– 428, 430, 458; and codification, 321–322; and socialism, 344, 384, 385–386, 404, 408, 414, 420– 422; in the interwar period, 364–366, 380–381; and the Vienna School, 367–370; and fascism, 386; and realism, 392; post–World War II, 415– 422, 451– 452, 461, 473; and the Third World, 433; and critical legal studies, 460, 461. See also Calvo Doctrine; Common-will variant

Index

of positivism; Empirical variant of positivism; Neo-Hegelianism; NeoKantianism; Positive law; Positive philosophy; Pragmatist writers of the seventeenth and eighteenth centuries; Sovereignty, state; Vienna School; Voluntarist variant of positivism Posner, Eric, 467– 468 Potter, Pitman B., 377, 421, 451, 458 Pound, Roscoe, 165 Pradier-Fodéré, Paul, 306 Praetor peregrinus, Roman, 46 Pragmatist writers of the seventeenth and eighteenth centuries, 179, 182, 189–201, 212, 213, 309; and empirical variant of positivism, 221, 226, 227–228; and socialist thought, 385. See also Empirical variant of positivism Prescription as basis of title, 126, 133, 134 “Primitive law,” 263, 264. See also Natural law Principle of freedom, 249, 254–255, 366 Prisoners of war, 192, 299, 435; and just-war doctrine, 71; medieval practice regarding, 85–86; enslavement of, 118, 153, 157; Geneva Convention (1925), 362; Geneva Convention (1949), 402– 403 Privateering, 90–91; abolition of, 320. See also Letters of marque Prize courts, 81–82, 91, 191. See also International Prize Court, proposed; Prize law Prize law, 133, 314, 323 Property, capture of, in war, 90, 165, 191–192, 207; in just-war doctrine, 70, 71–72, 157, 165; at sea, 202–203, 207, 328. See also Reprisals Protectorates, 318, 336. See also Inequality of states; Quasi-sovereignty Proxenoi, 27 Prussia, 177, 189, 193. See also Germany Public ser vice by international lawyers, 305–308. See also Diplomatic ser vice by international lawyers; Foreign ministry legal advisers Pufendorf, Samuel, 175–177, 181, 182–183, 184, 185, 188, 192, 197, 232, 245, 465

621

“Pure theory of law,” 369, 374, 376. See also Kelsen, Hans; Vienna School Qaddafi, Muammar, 451, 478 Quadri, Rolando, 426 Quasi-sovereignty, 300, 318–319. See also Extraterritoriality; Inequality of states Quesnay, François, 270 Quidort, Jean. See John of Paris Quran, 95, 96, 98 Rachel, Samuel, 171–173, 175, 305 Racial equality, and League of Nations Covenant, 352–353 Racial theories. See Nazis; Volkstaat concept Radbruch, Gustav, 389 Ramses II, 36 Rationalist writers of the seventeenth and eighteenth centuries, 179, 180–189, 189–190, 195, 290, 369, 385. See also Grotian school; Naturalist school; Natural law; Pragmatist writers of the seventeenth and eighteenth centuries Rawls, John, 453 Raymond of Peñaforte, 68, 83 Raymond of Toulouse, 56 Reagan Doctrine, 407, 409– 410 Realism, 16, 24, 28; in internationalrelations theory, 392, 428– 429 Real personality of the state, 237, 246, 253; criticism of, 291, 370, 375. See also Voluntarist variant of positivism Rechtsstaat theory, 240–242, 276, 387. See also Autolimitation theory Reciprocity, 318, 365; Confucianism and, 21–22; in Roman treaties, 31; in game theory, 35–36; Kant on, 189; and Neo-Kantianism, 241, 242–243, 261–262, 276; Strupp on, 365. See also Justice, sense of Reconquista, 100, 113 Recuperatio theory, 102 Red Cross, International Committee of the, 320, 354, 361, 402– 403 Refugees, 403; UN High Commissioner for, 464

622

Index

Reinsch, Paul S., 289–290, 377, 458 Renault, Louis, 291, 303, 306, 308–310, 324, 325, 326–327, 328, 330, 347 Reparations, German, 345, 349, 357 Reprisals: medieval, 88–90, 91; Grotius on, 162–163; restrictions on, 202; in the nineteenth century, 231, 334, 335–336, 377; in the interwar period, 345; under the UN Charter, 400 Requerimiento, 113–114, 115, 116, 118, 124 Res nullius, 128 Rhodesia, Southern. See Southern Rhodesia Rhodian Code, 81 Ricardo, David, 271 Richard I (of England), 86 Rivier, Alphonse, 230, 253, 306, 351 Rolin-Jaequemyns, Édouard, 324, 325, 347, 349, 356 Rolin-Jaequemyns, Gustav, 297, 300–301, 306, 307 Roman Empire, 31, 53, 94. See also Holy Roman Empire Romania, 359, 360, 406– 407 Roman law, 31, 75, 89, 204; ius gentium in, 44– 49, 60, 63, 64, 65, 80, 155–156, 171, 175; and ius commune, 73; title to property in, 111, 129–130; freedom of the seas in, 132 Rome, ancient, 7–8, 13. See also Roman Empire Rome Statute, 450, 464, 475, 478. See also International Criminal Court Roncaglia, Diet of, 75 Roosevelt, Eleanor, 402 Roosevelt, Franklin D., 302, 377, 393–394 Root, Elihu, 273, 302, 307, 337, 362–363 Rosas, Manuel, 228–229 Rosellis, Antonio de, 108 Rougier, Antoine, 297 Rousseau, Jean-Jacques, 236, 237, 426 Rufinus the Canonist, 65 Ruhr, occupation of the, 345 Russia, 298. See also Soviet Union Rutherforth, Thomas, 177–178 Rwanda, 442, 470

Rwanda Crimes Tribunal, 449– 450; Statute of, 464 Rymer, Thomas, 190 Safe-conducts, 192, 476. See also Aman; Cartazes Sancho II (of Portugal), 57 Sanctions: supernatural, 15; war as, 29; ecclesiastical, 55–56, 106, 109, 110, 150; and positivism, 79, 224, 231, 232, 252, 253, 254, 379; and nationality school, 282; state practice in the nineteenth century, 334–337; and League of Nations, 352, 390, 391–393; Vienna School on, 368, 369; and human rights, 403; and socialism, 426, 429– 430, 453, 461; by UN Security Council, 444– 445. See also Budapest Articles of Interpretation; “Non-belligerency,” U.S. policy of San Martín, José de, 263 Saragossa, Treaty of, 110 Sauvy, Alfred, 433 Savage states, 261, 311–312, 318–319, 432– 433. See also Barbarian states; Civilized states; Inequality of states Savigny, Friedrick Carl von, 237, 265, 280. See also Historical school Schindler, Dietrich, 374 Schücking, Walther, 339, 348, 356, 362, 363, 387, 389 Schwarzenberger, Georg, 392, 398, 415, 416, 420, 451 Scotland, 58, 85. See also Great Britain Scott, James Brown, 302, 325, 327, 347, 349, 350, 381 Scott, William (Lord Stowell), 212–213, 229 Secession, 437. See also Self-determination Security Council, UN, 400, 406, 407, 411, 454, 474; in Korean crisis, 404; post–Cold War, 444– 445; and Yugoslavia and Rwanda Crimes Tribunals, 448; and International Criminal Court, 450– 451, 475, 477– 478. See also United Nations (UN) Selden, John, 134–135

Index

Self-defense, 107; and Mohism, 23; as part of ius gentium, 64, 69; contrast to just war, 69–70, 164; and natural law, 151–152, 246–247; and Pact of Paris, 361–362; and UN Charter, 400; Brezhnev Doctrine and, 408– 409; and nuclear weapons, 443; and terrorism, 443 Self-determination, 434, 435– 438. See also Nationality school Sepúlveda, Juan Ginés de, 121–123 Serbia, 58, 437– 438, 445, 473– 474, 475 Settlement theory. See Agricultural theory Sèvres, Treaty of, 350, 358 Sexual violence, 463, 464 Shafi’i School, 98 Shanghai, International Settlement of. See International Settlement of Shanghai Sharia, 94 Shaw, George Bernard, 337 Shaybani, Sheikh al-, 95–96 Shigemitsu Mamoru, 400 Shotwell, James, 372 Shultz, George P., 409 Siam, 306, 311, 317, 324, 358 Sierra Leone, 475 Silent trading, 36 Silesia, conquest of, 177. See also Upper Silesia Simma, Bruno, 453, 454 Siyar, 95–96 Slavery, 87, 109, 114, 183, 463; as ius gentium, 47, 148; ban on, as peremptory norm, 267. See also Natural-slavery theory; Slave trading, abolition of Slave trading, abolition of, 321 Smith, Adam, 269, 271 Socialism, 286, 291–292, 430, 452. See also Cold War; Marxism; Socialist countries; Socialist views of international law Socialist countries, 344, 364, 405, 406– 407, 415, 433– 434, 435. See also Brezhnev Doctrine; Cold War; Socialism; Socialist views of international law; Soviet Union Socialist views of international law, 382–386, 404, 407– 409, 412, 415, 419– 422, 443– 444. See also Cold War;

623

Positivism (general): mainstream; Socialism; Socialist Countries Sociological approaches to international law. See Solidarism Sohn, Louis, 423 Solidarism, 260, 285, 309; in the nineteenth century, 285–297; and natural law, 292, 293; and liberalism, 293–294; and positivism, 294; in the interwar period, 344, 373–378; and socialism, 383, 408– 409, 421; and Nazism, 388; post–World War II, 414– 415, 424– 432, 451, 452– 461; attacks on, 421, 431. See also Functionalism Solórzano y Pereira, Juan de, 115, 119, 126 Sorel, Albert, 217, 229–230 Soto, Domingo de, 115, 120, 123, 152 South Africa, 411, 435 Southern Rhodesia, 435 South West Africa, 411. See also Namibia Sovereign equality of states, principle of. See Equality of states, principle of; Positivism (general): mainstream; Sovereignty, state Sovereignty (general), 343; in Chinese legalist theory, 23–24; of Holy Roman emperors, 53–54; over the seas, 82, 133–135, 204–205; of infidels over Christians, 101, 104, 251; over New World possessions, 111–131; Bodin on, 145–147; Hobbes on, 168–169. See also Quasi-sovereignty; Sovereignty, state; Territorial waters; Title to territory, legal bases of Sovereignty, state, 144, 343 344, 412; restraints on, 146, 240–241, 273, 274, 337, 423; in mainstream positivism, 176, 244–245, 249, 251, 338, 418, 451– 452; Vattel on, 197, 312; neo-Hegelian view of, 237–238; opposition to, 285, 293, 294–297, 370, 374–375, 399, 407– 410, 421, 425, 427; solidarism and, 290; Th ird World view of, 326, 433– 434, 471; over airspace, 361; in socialist thought, 384, 386, 407– 409, 420, 443– 444; New Haven School and, 430. See also Autolimitation theory; Brezhnev Doctrine; Calvo

624

Index

Sovereignty, state (continued) Doctrine; Equality of states, principle of; Fundamental rights of states; Positivism (general): mainstream; Reagan Doctrine; Rechtsstaat theory Soviet Union, 344, 363, 397, 400, 403, 404, 405, 407, 408– 409, 419– 420, 440, 443– 444, 452. See also Brezhnev Doctrine; Cold War; Socialist countries; Socialist views of international law Spanish Sahara, 436 Spazio vitale doctrine, 388–389 Spencer, Herbert, 11 Spheres of influence, 319, 407 Spirito, Ugo, 386 Srebrenica massacre, 445, 449. See also Crimes against humanity; Genocide Sri Lanka. See Ceylon Stalin, Josef, 395, 412 Stalinism, 385, 403 State responsibility, law of, 414 State sovereignty. See Sovereignty, state Stein, Lorenz von, 289, 290, 308, 458 Stimson, Henry, 393, 397 Stimson Doctrine, 393 Stoics and stoicism, 42– 44, 45, 46, 60, 61– 62, 64, 265, 267, 268, 465 Stone, Julius, 425 Stowell, Ellery, 325–326 Stowell, Lord. See Scott, William Strupp, Karl, 302, 365–366, 389 St.-Simon, Henri de, 286–287, 289, 297 St.-Simonism, 288, 289, 377, 424, 427, 458 Suárez, Francisco, 141, 144, 147, 153–158, 159, 160, 161, 162, 163–164, 165, 166, 172, 186, 247–248, 381 Substitution theory (of ius gentium), 63, 65– 66, 66– 67, 148, 152, 154, 185–186. See also Dualist theories: of ius gentium; Emanationist theory (of ius gentium) Sudan, 451, 475 Suez Canal, 288 Sumer, 13–14 Supreme state (of Wolff ), 186–187, 188, 197, 249 Suzerainty, 318–319. See also Quasisovereignty

Sweden, 139, 159, 175, 316, 356 Switzerland, 207, 289, 326 Systematic jurisprudence, 140–141, 159, 205, 322. See also Natural law Tactics, prohibited: employment of assassins, 198; launching projectiles from balloons, 325, 327 Taiwan expedition, 315 Takahashi Sakuyei, 315 Tanzania, 447, 449, 473 Taylor, Charles, 475 Tehran hostages incident, 441– 442, 446 Teilhard de Chardin, Pierre, 465– 466 Territorial waters: in medieval Europe, 82; in early modern Europe, 203–205; Chinese, 313; Institute of International Law on, 323; in interwar period, 363; post–World War II, 413, 441 Territory, title to. See Title to territory, legal bases of Terrorism, 443, 469; draft convention on (1937), 362. See also Anarchism Teutonic Knights, 103–105 Textor, Johann Wolfgang, 173, 199 Thaddeus of Suessa, 50 Thailand. See Siam Theodore, Emperor, 336–337 Theodosius I, Emperor, 55 Thucydides, 27–28 Tibet, 40, 472 Title to territory, legal bases of: papal grants, 112–115; just wars, 115–117; natural-slavery theory, 117–110; Dilatatio theory, 119–124; humanitarian intervention, 124–125; prescription, 126, 133, 134; conquest, 129; cession, 129–131 Tobar, Carlos R., 274–275, 348. See also Tobar Doctrine Tobar Doctrine, 275, 277–278, 333 Tokyo Trials, 399– 400, 402, 440, 468. See also Nuremberg Trials Toledo, Francisco de, 124–125 Tomke, Peter, 440 Tomuschat, Christian, 454 Tönnies, Ferdinand, 272

Index

Tordesillas, Treaty of, 110 Trachtman, Joel P., 454 Trainin, A. N., 397 Traité-contrat. See Contract-treaties Traité-loi. See Law-treaties Transnational law, concept of, 428. See also Ius commune; Ius gentium: in Roman law; Law merchant, medieval Treaties (general), 264, 268–269, 314; making of, 2, 7, 14–15, 18, 25, 31, 36, 40; breaches of, 16, 24, 33, 56, 174, 207–208, 334, 346, 356–357, 359, 360, 398; as part of ius gentium, 64; in Islamic law, 96, 98; in Asia, 131; binding character of, 146, 172, 209, 350; as the basis of international law, 169–170, 192–193, 199–200, 213, 231–236, 239, 257, 261, 300, 319, 380, 382, 383–384, 385, 453, 454– 455; Naturalist school view of, 174, 176; contractual character of, 176, 185, 230, 239, 247–248, 266, 268–269, 315, 454– 455, 476; collections of, 190–191, 198, 352, 481; repudiation of, 207, 231, 239, 298, 299, 382–383, 390; and peremptory norms, 266–267, 432; unequal, 313; revision of, 352, 359; registration of, 352, 401; interpretation of, 356, 425; codification of the law of, 363, 413– 414. See also Contract-treaties; Law-treaties; Legislation, international; Pacta sunt servanda; Treaties, bilateral; Treaties, multilateral Treaties, bilateral: peace, 14, 36–37, 41, 56, 64, 86, 96, 159, 192, 202, 306, 312, 336, 350, 352, 357, 359–360, 406– 407; friendship, 14, 40, 98; alliance, 31; commercial, 87, 90, 105–106, 150, 272–273; networks of, 181, 200, 201, 203, 251, 273; amity and commerce, 201–203, 211–212, 273, 328; arbitration, 298–299, 329–330; unequal, 313; extraterritoriality, 315–317, 358–359, 433. See also Aloaçoves, Treaty of; Capitulations; Cobden-Chevalier Treaty; Contracttreaties; Extraterritoriality; Jay Treaty; Tordesillas, Treaty of; Treaties (general); Washington, Treaty of

625

Treaties, multilateral, 181, 218, 273, 288–289, 300, 319–321, 327, 328, 333, 353, 356, 357, 358–359, 361, 397, 412; in pre-imperial China, 18, 19; reservations to, 413– 414. See also Geneva Conventions; Hague Conventions; Human-rights conventions; Lausanne, Treaty of; Legislation, international; Minorities, protection of; Pact of Paris; Sèvres, Treaty of; Treaties (general); UN Charter; Versailles, Treaty of; Westphalia, Peace of Tribute: in Chinese leagues, 19, 22–23; in Muslim-infidel relations, 98–99. See also Tribute system, Chinese Tribute system, Chinese, 39– 41 Triepel, Heinrich, 232–236 passim, 303, 365 Truces, 64, 84–85; Truce of God, 83; breaches of, 92; in Islamic law, 98, 99; between Netherlands and Spain, 202 Tullus Hostilius, 31–32 Tunisia, 105–106, 441, 464 Tunkin, Grigory, 408, 420 Turgot, A. R. J., 270 Turkey, post-Ottoman, 350, 356, 366. See also Ottoman Empire Twiss, Travers, 312 Uganda, 442, 450, 473, 476– 477 Ulfstein, Geir, 454 Ulpian, 47, 61, 62– 63, 64, 66, 101 Umma, 14 Unanimity of states: at the Hague Peace Conferences, 324, 327; at the League of Nations, 360 UN Charter, 400– 401, 405, 406, 407, 420, 422, 434, 436, 442, 473. See also United Nations (UN) Unequal treaties. See Treaties (general): unequal UNESCO, 464 United Kingdom. See Great Britain United Nations (UN), 344, 394, 400– 401; ineffectiveness of, 395–396, 401– 404; General Assembly, 401, 402, 403, 404, 411, 412, 422, 436, 437; enforcement

626

Index

United Nations (UN) (continued) action by, 404, 444– 445; membership crisis, 405– 407; expenses of, 411; secretariat, 413. See also International Court of Justice (World Court); International Law Commission; Security Council, UN; UN Charter United States, 207, 275, 288, 307, 324, 330, 333, 355, 361, 363, 377, 393–394, 397, 400, 403– 404, 411, 427, 444; and mixed-claims commissions, 211–212, 298–299, 329, 336, 357–358, 446; and Caroline incident, 246–247; armed expeditions by, 299, 335, 337; international-law education in, 304–305, 431; and extraterritoriality, 316–317, 433; World Court cases involving, 409– 410, 441– 442; and the International Criminal Court, 475– 476. See also Cold War; Reagan Doctrine Universal Declaration of Human Rights, 402, 403, 456 Universal jurisdiction: of popes, 56, 57; of states, 468– 472, 473 Universal Postal Union, 288–289 UN War Crimes Commission, 398 Upper Silesia, 360, 390 Urbach, John, 104 Urban II, Pope, 57–58, 102 Urban V, Pope, 106 Usage, 155, 202, 212, 228, 366; contrasted with customary law, 173, 231, 252–253. See also Customary international law Use of force, prohibition against, 407, 412, 435; in UN Charter, 400, 434; violations of, 435. See also Aggression: as an international crime; Crimes against the peace; Pact of Paris; Porter Convention U.S.S.R. See Soviet Union Valladolid debate, 119–124. See also Dilatatio theory; Juntas, Spanish Valverde, Vicente de, 92, 93, 114 Vattel, Emmerich de, 1–2, 129, 182, 188, 194–198, 199, 200, 212, 218, 228, 245, 256–257, 258, 263, 264, 305, 312, 320, 469

Vázquez y Menchaca, Ferdinando, 133, 134 Venezuela, 277, 307–308, 336, 338 Venizelos, Eleuthérios, 347–348 Verdross, Alfred, 367, 379–380, 401, 415, 421, 453 Vereinbarung. See Law-treaties Vereschetin, V. S., 443 Versailles, Treaty of, 345, 346, 349–350, 357 Vertrag. See Contract-treaties Veto, in UN Security Council, 400, 404, 406, 474 Vienna, Congress of, 217, 288, 321, 347 Vienna School, 201, 367–371, 379; Nazi opposition to, 289, 388; and solidarism, 374, 376, 424, 429, 456; socialist opposition to, 421 Virally, Michel, 418, 419 Visit and search on the high seas, 321 Vissering, Simon, 314 Vitoria, Francisco de, 92–93, 115, 116–117, 119–120, 122, 123, 124, 127, 133, 147, 152–153, 156, 164, 256–257, 258, 381; likeness of, 381 Vives, Luis de, 93 Vladimiri, Paul, 104–105 Volkstaat concept, 387–388 Vollenhoven, Cornelius van, 462 Voluntarist variant of positivism, 226, 236–243, 246, 247, 249, 250, 252–253, 254, 257, 261, 268, 276, 285, 291, 294, 365, 370, 375–376, 380, 384; post–World War II, 416, 417– 419, 420. See also Common-will variant of positivism; Empirical variant of positivism; Positivism (general) Voluntary law of nations: Grotian conception of, 156, 160–166, 170, 172–173, 180, 181–182, 191–192; criticism of Grotian conception, 177; Wolff ’s conception of, 185–187, 196–197, 198, 379. See also Customary international law; Grotian school; Ius gentium Vultures, Stele of the, 14 Vyshinsky, Doctrine, 422

Index

Walz, Gustav Adolf, 388, 389 War, conduct of: in ancient India, 16–17; in ancient China, 20–21; in ancient Greece, 27–29, 35; in medieval Europe, 73, 83–86; in the Islamic world, 95, 96; in early modern Europe, 149–150; Grotius on, 159, 165; Pufendorf on, 176–177; pragmatist writers on, 191–192; Vattel on, 198; Grégoire on, 209; maritime, 212–213; Lieber Code, 303, 323; Declaration of St. Petersburg, 320; Institute of International Law codes, 323; Brussels projet, 323, 324–325; Hague Rules, 324–325, 327; Hague declarations and Conventions concerning, 325, 327–328; chemical weapons, 325, 361; aerial, 361; nuclear weapons, 442– 443. See also Geneva Conventions; Nuremberg Trials; Tactics, prohibited; Tokyo Trials; War crimes; Weapons, prohibited War, declarations of, 32–33, 84, 149, 164–165, 171, 208, 315, 336; Hague Convention on, 327 War, legal conceptions of: in Sumer, 14; in ancient China, 20; in ancient Greece, 26, 27; ius gentium and, 48, 64, 148; in medieval Europe, 51, 56–57, 58–59; in Islamic world, 96–97, 98, 99; Grotius on, 163–165; anarchy as, 169, 188; in mainstream positivism, 253–256, 361, 455. See also Just-war doctrine, medieval; Just-war ideas, ancient; Just-war ideas, modern; Measures short of war; Self-defense War, measures short of. See Measures short of war War, resort to, in League of Nations Covenant, 352. See also Aggression; Just-war doctrine, medieval; Just-war ideas, ancient; Just-war ideas, modern; Measures short of war; Pact of Paris; Use of force, prohibition against; War, declarations of War crimes, 402, 472; in ancient Greece, 28–29; aggression as, 349; in World War I, 349–351; in World War II, 397, 398,

627

399; in Yugoslavia civil wars, 439, 448; International Criminal Court and, 450; sexual violence, 463, 464; universal jurisdiction over, 469. See also Aggression: as an international crime; Crimes against humanity; Crimes against the peace; Geneva Conventions; Genocide; War, conduct of Ward, Robert, 209–210 Wars: Persian, 10; Peloponnesian, 27–29; Thirty Years War, 139, 143; French Revolutionary, 207–208, 210, 211–212, 222; Franco-Prussian, 298, 314; Crimean, 299, 312, 319; American Civil War, 299, 329; World War I, 300, 302, 339, 349–351; Opium, 312–313, 316, 335; Sino-Japanese, 314–315, 317; RussoJapanese, 315; World War II, 344, 346–347, 393–394, 400; Korean, 404, 444. See also Civil wars; Kuwait crisis Washington, George, 1–2, 196, 271–272 Washington, Treaty of, 298–299, 329 Washington Rules, 299, 329 Weapons, prohibited: poisoned weapons, 17, 165, 198; barbed weapons, 17; crossbows, 83–84, 320; exploding bullets, 320; expanding (dum dum) bullets, 325; asphyxiating gases, 325, 361 Weber, Johann Wolfgang. See Textor, Johann Wolfgang Webster, Daniel, 219, 247 Weil, Prosper, 417– 418, 419, 451 Wells, H. G., 343, 430 West, Benjamin, 130 Western Sahara. See Spanish Sahara Westlake, John, 229, 246, 300–301, 303, 304, 305, 307, 330, 347, 351 Westphalia, Peace of, 139–140, 188, 207, 347 Wharton, Francis, 302–303, 304 Wheaton, Henry, 228, 246, 263, 304, 306, 307; translations of, 229, 313, 314 Wildman, Richard, 228 William II (of Germany), 239, 306, 350 William of Ockham, 222, 223 Wilson, Edward O., 12 Wilson, Woodrow, 275, 347, 352–353, 371, 372

628

Index

Wimbledon case, 346, 356 Winiarski, Bohdan, 348 Wisby, Laws of, 81 Wlodkowic. See Vladimiri, Paul Wolff, Christian, 183–187, 188, 189, 193–194, 195, 196, 197, 199, 201, 228, 245, 248, 249, 262, 266, 369, 371, 379, 465 Women, position of, 321, 447, 462; in the international-law profession, 464. See also Feminism Woolsey, Theodore Dwight, 303, 304, 311, 339; translation of, 313–314 World Bank, 396, 446 World Court. See International Court of Justice; Permanent Court of International Justice World government, 44; contrast to international law, 74, 169–170, 180, 242; opposition to, 188–189, 244, 420, 421, 431. See also Constitutionalism; Global administrative law; Neo-Kantianism; Solidarism; Sovereignty, state

World Health Orga nization, 464 World Order Models Project (WOMP), 431, 459 World Trade Orga nization, 446, 468 Wright, Quincy, 372, 392, 394, 398, 399, 415, 422– 423, 451, 453– 454 Yankov, Alexander, 420 Yearbooks, international-law, 302 “Young Italy,” 280 Yugoslavia Crimes Tribunal, 439, 448– 449, 450; Statute of, 464 Zachaeus. See Zouche, Richard Zacharius, Pope, 57 Zimbabwe. See Southern Rhodesia Zollverein, 287 Zorn, Albert, 239 Zorn, Philipp, 239, 306, 324 Zoroastrianism, 94 Zouche, Richard, 171, 191–192, 199, 210, 227, 309, 385