CHAPTER I

CLASSICS AND MODERN INTERNATIONAL LAW

A. THE POSITION OF THE INDIVIDUAL IN INTERNATIONAL LAW ACCORDING TO CURRENT THEORIES

The Traditional Positivist Doctrine

Since the Law of Nations is based on the common consent of individual States, and not of individual human beings, States solely and exclusively are the subjects of International Law. This means that the Law of Nations is a law for the international conduct of States, and not of their citizens.... An individual human being ... is never directly a subject of International Law. 1 But what is the real position of individuals in International Law, if they are not subjects thereof? The answer can only be that they are objects of the Law of Nations.2

Two opposing standpoints. - These statements are a good summary of the so-called traditional positivist doctrine of international law with regard to the position of the individual. They were written by one of the foremost authorities on the subject at a time when, at least in the literature ofinternationallaw, positivism dominated continental Europe and was striving to dominate the countries of common law as welP In those years it seemed that the body of internationallaw had finally been established as an exclusive law between the sovereign members of the family of nations. The alliance systems created a precarious balance of power between the different groups of these sovereign states. The Hague Conferences provided mIes conceming peacefus procedures for settling disputes among states. In case those rulel

1 F. L. Oppenheim, International Law (London: Longmans Green & Co., 1905), I, par. 13, 18 f. • Ibid., par. 290, p. 344. 3 Cf. A. Nussbaum, A Concise History ofthe Law of Nations (New York: The Macmillan Co., 1947), pp. 222 ff., 274 f.; H. J. Morgenthau, "Positivism, Func• tionalism and International Law," The American Journal of International Law [referred to hereafter as A. J.J, XXXIV (1940), 263; H. W. Briggs, The Law of Nations; Cases, Documents, and Notes (2d ed.; New York: Appleton-Century• Crofts, 1952), pp. 21 f.; Ch. de Visscher, TMories et Realites en Droit International Public (Paris: A. Pedone, 1953), p. 69.

P. P. Remec, The Position of the Individual in International Law according to Grotius and Vattel © Martinus Nijhoff, The Hague, Netherlands 1960 4 CLASSICS AND MODERN INTERNATIONAL LAW were unsuccessful, there was an extensive code of other rules which regulated war from every conceivable angle.1 To mention the possibility that entities other than states, least of all individ• ual human beings, could be direct subjects of internationallaw with rights and obligations of their own, was to expose oneself to the reproach of being out-of-date.2 The private individual had, according to the positivist doctrine, rights and obligations within his own country or within some other country in which he happened to be living. There he could sue and be sued. There he could commit crimes and be punished. These things would be done according to provisions of private and public municipallaw. His relations with individuals belong• ing to foreign states were regulated in part by private inter• nationallaw. But that, too, was construed as part of municipal law.3 In the international sphere, however, not actions of indi• viduals only actions of states were relevant. Not individual rights or duties, but those of states were pursued.4 The individual

1 "Perhaps it would have been just as weil to have left the second edition [of Oppenheim's International Law, published in 1912] as a memorial to the naivete of the statesmen of 1907 who thought in terms of sovereignty and not of co• operation, who believed that peace could be kept by a balance of power, or at any rate that if peace could not be kept, war could be fought according to the rules and peace restored by treaties that would last until a new shift might take place in the balance of power." C. G. Fenwick, "The Old Order Changeth, Yielding Place to New," A. j., XLVII (1953), 84. 2 Rejecting Pascal Fiore's demand that instead of the term "droit internation• al" use should be made of the term '''droit du genre humain,' qui est le terme collectif, embrassant cette grande republique formee par tous les etres consideres individuellement, ou existant sous la forme d'individualites collectives," Ernest Nys considers that "pretendre que l'homme envisage isolement puisse etre le sujet du droit des gens est soutenir une doctrine vieillie; c'est le droit public qui commande a l'individu, c'est le droit public qui le protege." E. Nys, Le Droit international: les prineipes,les theories, lesfaits (2nd ed.; Bruxelles: A. Castaigne, 1904), I, 60f. 3 Cf. K. Strupp, Grundzüge des positiven V ölkerreehts (Bonn: Roehrscheid, 1928), p. 13; Oppenheim, op. eit., I, par. 1,4. , Cf. H. Triepel, "Les rapports entre le droit interne et le droit international," The Hague, Aeademie de Droit International, Reeueil des Cours [referred to here• after as Hague Reeueil], I (1923), 117 f. This also seems to be the position taken by the Permanent Court of Interna• tional J ustice and still maintained by the International Court of J ustice. In the recent Nottebohm Case (Liechtenstein vs. Guatemala), I. C. J., Reports, 1955, p. 4, the Court stated: "As the Permanent Court of International J ustice has said and has repeated, 'by taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, aState is in reality asserting its own rights - its rights to ensure, in the person of its sub• jects, respect for the rules of internationallaw.' (P. C. I. J., Series A, No. 2, p. 12 CLASSICS AND MODERN INTERNATIONAL LAW 5

did not commit international crimes. But the state which failed to restrain the individual from criminal actions could. under some circumstances. be held responsible for damages caused. The sphere of application of internationallaw was thus thought of as entirely separate from that of municipal law. It differed from the latter in its sourees. subjects and substantive rules. The pure positivist doctrine was at the same time also in principle a dualistic doctrine.1 Only forty years after the passage quoted at the outset was written. an international tribunal handed down a most important sentence. This sentence shook the foundations of the traditional positivist doctrine. at least with respect to the quest ion of an individual's capacity to commit crimes against international la'N.

It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That internationallaw imposes duties and liabilities upon individuals as weil as upon the States has long been recog• nized .... Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of internationallaw be enforced.2 and Series AlB, Nos. 20-21, p. 17.)" A. J., XLIX (1955), 401. Yet it may be noted that in the Nottebohm Case the main problem before the Court was to determine whether the "factual connection between Nottebohm and Liechten• stein in the period preceding, contemporaneous and following his naturalization appears to be sufficiently elose ... that it is possible to regard the nationality conferred upon hirn as real and effective." Ibid. The Court observed, inter alia, that while "internationallaw leaves to each State to lay down the mies govern• ing the grant of nationality," - that, therefore, these mies represent municipal legislation - the legislation and administration of these mies in applying them to individual subjects, nevertheless, "by its very nature affects international relations." Ibid., p. 400. Hence "international relations" in this sense would consist not only of inter-state intercourse but also of relations between individ• uais and states. The non-existence of such "elose" relations between Notte• bohm and Liechtenstein was also the basis for the Court's refusal to admit Liechtenstein's right to "extend its protection to Nottebohm." Ibid., p. 403. Cf. also Jurisdiction of the Courts of Danzig Case, P. C. I. J., Series B, No. 15 (1928), reported in Briggs, op. eit., pp. 879 ff. 1 Cf. H. Lauterpacht, "Regles generales du droit de la paix," Hague Reeueil, LXII (1937),par.13,129f. • J udgment given on October I, 1946, by the International Military Tribunal in Nuremberg, Transeript of Proeeedings, p. 16878, quoted here from Briggs, op. eit., p. 97; cf. also H. Lauterpacht, International Law and Human Rights (New York: F. A. Praeger, 1950), p. 6. 6 CLASSICS AND MODERN INTERNATIONAL LAW

Two great and total world wars took place in the time between the dates when the two statements were written. Great changes took place in the policital, social, economic, and ideological structure and the world. These changes were caused by many peaceful and violent revolutions. In the science of international law, too, something like a revolution took place. The revolution is still going on. The aim of this development is to win for the individual human being a recognition in the system of inter• nationallawas an independent jural entity. He would not only be liable as an individual for criminal action, but he would also have rights independently of the state or states under whose jurisdiction he lives. He would be capable of asserting those rights, if necessary, directly against states other than his own without having to use his own as an intermediary. Finally he would be able to appeal directly to some international agency above the states for protection and administration of justice, thus gaining international protection even against his own state. In short, the aim of this movement is to make internationallaw applicable "ex proprio vigore" to individuals directly, not only through the intermediary activity of states.1 The tradition al positivist formula asserts that states are the sole subjects of international law, while individuals, like the open sea and state territory, are considered merely as its objects.2 This is a plausible and seemingly logical doctrine, easy to under• stand, simple to apply. This at least is the appearance on the surface. All that is necessary to know are the criteria by which one determines whether a certain grouping of men in a given territory under a certain form of government is a "state" and thus a subject of international law. Everything that could not withstand this test is simply rejected.3

1 Cf. Briggs, op. eit., pp. 95 f; Paul Guggenheim, Traite de Droit international publie (Geneve: Librairie de l'Universite, George & Cie., 1953), I, 5; also N. Politis, Les Nouvelles Tendanees du Droit International (Paris: Librairie Hachette, 1927), especially chap. ii; A. de LaPradelle, "La Place de l'Homme dans la Construction du Droit International," Current Legal Problems, G. W. Keeton and G. Schwarzenberger, eds. (Landon: Stevens & Sons), I (1948), 140 fI.; Morgenthau, op. cit., pp. 260 fI.; for arecent survey of this "new international law" see Quincy Wright, Contemporary International Law: A Balance Sheet (Garden City, N. Y.: Doubleday & Co., 1955), especially pp. 19 fI. • Oppenheim, op. cit., Preface, p. ix. a "Soltanto gli stati sono e possono essere soggetti di diritto internazionale." "In conclusione neppure uno degli enti, a cui la comune dottrina positiva CLASSICS AND MODERN INTERNATIONAL LAW 7

Different adaptations 0/ the theory. - While tbis formula provided an excellent basis for a faultless theoretical system of inter• national law, it proved to be imperfect in practice.1 Certain dis• tinctions were always made between different types of "states," e.g., between full and half sovereign states, between great powers and small powers, etc. The meaning of the term and concept "state" was constantly disputed, despite the common agreement among jurists that internationalIawas a juridical science requires c1ear and precise fundamental concepts.2 Also there were at all times entities other than states - like insurgents, churches, international organizations, and others - which c1early enjoyed certain rights and were undoubtedly in direct intercourse with sovereign states. Yet these entities met the standard criteria of statehood only partially or not at all. Finally even individuals in certain acts - piracy, breach of blockade, carrying of contraband - seemed to come immediately under the sway of the norms of international law. In order to sustain the traditionally accepted doctrine, namely that states rifiuta la personalita internazionale [namely: individuals, insurgents, nomad tribes, Catholic Church, League of Nations, British Dominions and India, etc.], conferma nettamente siffatto apprezzamento alla stregua di un esame obbietti• vo." A. Cavaglieri, "I soggetti dei diritto internazionale," Rivista di diritta internazianale, XVII (1925), 20, 32. Cf. also Nys, ap. eit., p. 60. 1 Two pertinent comments on this deserve to be quoted: "Non seulement la doctrine fera de I'Etat le destinataire exciusif de toutes les normes, mais elle envisagera sa volonte comme la source unique de leurs elaborations. Represen• tation propre a conferer a la technique juridique une grande surete, tous les rapports externes se trouvant ramenes a un point d'imputation unique, condi• tion eminemment favorable a la precision des obligations et a l'organisation des responsabilites. Mais cette forte systematisation ordonnee autour de l'Etat, le positivisme volontariste ne la realisera qu'en sacrifiant l'idee d'un ordre objectif a une conception toute formelle du droit international; elle releguera au-dela du droit les considerations superieures de raison, de justice, d'utilite commune qui en sont le fondement essentiel." Ch. de Visscher, ap. eit., p. 35. "La theorie predominante est ciaire et de large portee: le droit international est seulement et exciusivement le droit des Etats. Les individus ne sont que les objets du droit international. Le droit international ne leur impose pas d'obliga• tions; meme il ne leur donne directement aucun droit; les droits de caractere international qu'ils possedent leur sont accordes par le droit interne, conforme• ment au droit international. ... Mais c'est un motif en apparence theorique qui a fourni sa force motrice a cette opposition. Ce motif est la reconnaissance que la doctrine predominante constitue un obstacie a la comprehension exacte et a I'efficacite des obligations internationales.... Dire que l'Etat - et I'Etat seul - est le sujet des obligations internationales, c'est dire, en fin de compte, que les obligations internationales ne lient personne; c'est dresser un ecran d'irrespon• sabilite entre la regle de droit international et les personnes qui sont censees devoir la faire respecter." H. Lauterpacht, "Regles generales du droit de la paix," Hague Reeueil, LXII (1937), 207 ff. S Nys, ap. eit., pp. 47 f. 8 CLASSICS AND MODERN INTERNATIONAL LAW only are the subjects of internationallaw, the writers loyal to it used all the resources of their ingenuity to create a number of exceptions to the basic tenets of this theory or to reconstrue the facts to fit the theoretical principles. They hoped thereby to preserve the cherished positivist formula unimpaired.1 Yet it must be admitted that a great number of exceptions may very weIl impair the rule itself, especiaIly if the latter is only a hypothetical deduction from so me abstract apriori prin• ciples.2 On the other hand, there were always authors who did not accept the positivist doctrine and who were searching, with more or less success, for so me other formula. Especial1y after World War I the polemic between the two opposing schools of thought became quite vivid and acute. The particular problem under scrutiny was the position which the individual should have in the system ofinternationallaw.3 These were not purely academic disputes. They grew for the most part out of an increasing number of cases and decisions in which individuals as such were directly involved in procedures and actions of international legal character. Besides the tradi• tional cases of piracy, breach of blockade, carrying of contraband, and the never-enacted provisions foran International Prize Court, which could have admitted appeals of individuals against deci• sions of national courts,4 the new situations arising out of the peace treaties concluding World War land certain other con• ventions created some possibilities for individuals as such to

1 Cf. Cavaglieri, op. eit.; also R. Knubben, Die Subjekte des Völkerrechts, in Fritz Stier-Somlo (ed.), Handbuch des Völkerrechts, Vol. H, Part 1 (Stuttgart: W. Kohlhammer, 1928), chaps. vii, viii, especially paragraphs 12-17, for a detailed treatment of all these distinctions in the meaning of the traditional positivist theory. 2 Cf. W. B. Cowles, "The Impact of International Law on the Individual," Proceedings 0/ the A. S. I. L., XLVI (1952). 77. a See George Manner, "The Position of the Individual in International Law" (unpublished Ph. D. dissertation, Dept. of Political Science, Cornell Univer• sity, 1940), pp. 25-179, for a very detailed survey of the recent divergent currents of doctrine with regard to the topic. Also by the same author, "The Object Theory of the Individual in International Law," A. ]., XLVI (1952), 428 ff. • Cf. J. B. Scott (ed.), The Hague Conventions and Declarations 0/ 1899 and 1907 (3rd ed.; New York: Oxford University Press, 1918), pp. 188 ff.: Conven• tion (xii) Relative to the Creation of an International Prize Court; also C. G. Fenwick, International Law (3d ed.; New York: Appleton-Century-Crofts, 1948), pp. 517f. CLASSICS AND MODERN INTERNATIONAL LAW 9 appear before different international tribunals, or to have direct relations with other international bodies.1 Yet on the whole the period between the war yielded little besides extensive theoretical polemies. Indeed, at its end it seemed that the practice of states, shaped by the extreme totali• tarian ideologies, developed a trend opposite to any recognition of the individual's rights and duties under international law. Hearing in the rise of the new social orders the sounds of a "death• knell of the emancipation of the individual by me ans of a new natural or of international law," some writers questioned the value of any theory contravening this totalitarian trend. Alleg• edly such theories did not comply with the positively observable facts of state practice.2 A quite new impetus was given to the discussion on the position of the individual in internationallaw by World vVar Two. Many acts of inhumanity were committed before, during, and after that war by the totalitarian states. As a result, several official decla• rations and enactments, pronouncements ofindividual statesmen and authors, and public opinion in many corners of the world de• manded, with greater consistency and success than at any time before, that the protection of individual human beings be not left in the future to the discretion of states. Men should be protect• ed in their enjoyment of human rights by internationallaw and

1 The more important instances are: (1) Articles 297 and 307 of the Treaty of Versailles (1919), where procedural capacity under international law before the Tribunal Arbitral Mixte is conferred on certain individuals. Cf. J. Spiropoulos, "L'individu et le Droit international," H ague Reeueil, XXX (1929), 223 ff.; Briggs, op. eil., p. 95. (2) The direct jurisdiction of the European Com• mission of the Danube over ships and individuals in certain cases. Cf. Spiro• poulos, op. eit.; Briggs, op. eit., pp. 274 ff., where some citations are made from the jurisdiction 0/ the European Commission 0/ the Danube Case, P. C. I. j., Series B, No. 14 (1927), p. 38. (3) Artic1e 3 ofthe unratified Treaty ofWashing• ton of February 6, 1922, concerning the employment of submarines and ob• noxious gases in wartime, A. ]., XVI (1922), Supplement, 58; Spiropoulos, op. eit. (4) The provisions of the German-Polish Convention of May 15, 1922, provid• ing for the Upper Silesian Arbitral Tribunal before which individuals were granted international procedural capacity. Cf. Briggs, op. eit., pp. 274 ff., Gug• genheim, op. eit., I, 293. (5) The advisory opinion of the Permanent Court of International Justice concerning the jurisdietion 0/ the Courts 0/ Danzig, Series B, No. 15 (1928), where the Court held that certain individuals had rights in international law derived directly from the treaty between two states, because the parties to the treaty so intended; quoted in Briggs, op. cit., pp. 879 ff. For some further references see also Lauterpacht, International Law and Human Rights, p. 29, n. 9, and Manner, "The Position of the Individual in International Law," pp. 194 ff., with bibliographies there quoted. 2 Manner, "The Position of the Individual International Law," pp. 19, 568. 10 CLASSICS AND MODERN INTERNATIONAL LAW by organizations set up in the international sphere above the previously sovereign states.1

The Organized Community 0/ Nations and the Individual The Covenant o/the League 0/ Nations. - This change in the minds of statesmen and politicians can be vividly seen by comparing two instruments of international constitutional character, namely the Covenant of the League of Nations and the Charter of the United Nations. Both can be considered as the result of much the same development. The second tried to pick up where the first failed. Their common underlying idea is that universallaw and order, international peace and security, can be preserved only through an association of independent states which acts as a col• lective security system, thus actually transforming the world into an organized community.2 Whether this organized community referred to the sovereign states only or to mankind in general remained in dispute.3 During the First World War President Wilson demanded that the postwar world be made safe for democracy. The guiding thought behind this demand was that only democratic govern• ment can secure the inalienable human freedoms, and that the observance of the latter is an indispensable condition of world peace.4 Yet in the Covenant of the League of Nations the idea of protecting these inalienable human freedoms was not carried

1 For a comprehensive presentation see Quincy Wright, "Human Rights and the World Order," a paper contained in the Third Report, "Commission to Study the Organization ofPeace - The United Nations and the Organization ofPeace," International Conciliation (New York, Carnegie Endowment for International Peace), No. 389 (April, 1943), pp. 238-62, where a detailed examination of the problem as existing at that time is made, with references to the United Nations Declaration of ]anuary I, 1942, Atlantic Charter of August 14, 1941, and other documents. See also "Statements of the Commission to Study the Organization of Peace, International Safeguards of Human Rights," ibid., No. 403 (Sept. 1944), pp. 552-75. Cf. also H. Lauterpacht, "The Law of Nations, the Law of Nature, and the Rights ofMan," The Grotius Society, Transactions, XXIX (1944). 1-39, and by the same author, International Law and Human Rights, p. 80 and passim; Quincy Wright, Contemporary International Law: A Balance Sheet, pp. 37f. I Cf. W. Schiffer, The Legal Community 0/ Mankind (New York: Columbia University Press, 1954), p. 3 and passim. I P. E. Corbett, "The Individual and World Society," Center /01' Research on World Political Institutions (Princeton University, 1953), Publ. No. 2, pp. 8 f.; Q. Wright in G. A. Lipsky (ed.). Law and Politics in the World Community (Berkeley: University of California Press, 1953), p. 6. 4 H. Lauterpacht, International Law and Human Rights, p. 78. CLASSICS AND MODERN INTERNATIONAL LAW 11

beyond the frame of the democratic states. The world organiza• tion in the form of the League of Nations concerned itself only with nations and their mutual relations. Not a single mention of the individual and his rights is made in the Covenant. These matters were meant to be taken care ofin democratic ways within the state societies themselves. The only consideration that the well-being of individual men received in the Covenant was in the provisions of Articles 22 and 23.1 In the former the Mandatory Powers accepted the "well• being and development" of the peoples under their mandatory rule as a "sacred trust of civilization." Yet according to the wording of this Article it is the idea of those colonial peoples as incipient or potential independent nations, rather than indi• vidual persons, that should be protected. In Article 23 the Members agreed to "endeavor to secure and maintain fair and humane conditions of labor for men, women and children" and to "undertake to secure just treatment of the native inhabitants of territories under their control," as weIl as to "intrust the League with the general supervision over the execution of agreements with regard to trafik in women and chil• dren, and the traffic in opium and other dangerous drugs." All these engagements were meant only to safeguard and regu• late some specific pressing problems of the day and did not aim at any general solution. While binding the member-states in a qualified sense, no express rights were accorded to individual men or groups of men thus protected which they could pursue in• dependently before an international authority. Actually the in• dividuals and groups of individuals thus protected were still con• sidered by the prevailing positivist opinion only as objects of international law for whose interests special rules were enacted in the Covenant. But these rules gave express rights to, and imposed obligations on states only.2 The same conclusion was reached with regard to the extensive Minorities Protection System developed under the auspices of the League of Nations. 3

1 Textual citations from the Covenant of the League of Nations, Charter of the United Nations and the Statute of the International Court of Justice from Briggs, op. eit., Appendices I-III. 2 Cf. Angelo P. Sereni, The Italian Coneeption oi International Law (Kew York: Columbia University Press, 1943), pp. 230 f. 3 Manner, "The Position of the Individual in International Law," pp. 365 ff. 12 CLASSICS AND MODERN INTERNATIONAL LAW

The Charter oj the United Nations. - In considerable contrast to this is the Preamble to the Charter of the United Nations. Its first substantive statement emphatically reaffirms "faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women," before the equal rights of "nations large and small" are even mentioned. Throughout the Charter, the idea of human rights and funda• mental freedoms of individual men are greatly emphanzed.1 The subsequent work and enactments of the different organs of the United Nations Organization as weil as the efforts of other international bodies in the field of human rights certainly show that in practical internationallife today these problems are very real. 2 Yet the effect of these pronouncements, elevating the rights of individual men almost above those of states, is somewhat dampened by certain other provisions of the Charter which con• tinue to uphold not only "the sovereign equality" of all states• members but also their independence of intervention by the United Nations in "matters which are essentially within the domestic jurisdiction."3 There is an apparent contradiction be• tween the notion of the sovereignty of states on the one hand, and human rights on the other, while both of them are acknowledged in the Charter ofthe United Nations. It would seem that sover• eignty implies a complete right of the state to deal with indi• viduals within its "domestic jurisdiction" in accordance with its own laws, thus denying any such thing as human rights transcend• ing the rights and obligations of individuals as sublects of a particular system of nationallaw. Fundamentally, therefore, the United Nations Organization, like its predecessor, the League of

1 Cf. U. N. Charter, Arts. I (3), 13, 55, 63, 68, and 76. For a detailed treat• ment of these provisions see H. Lauterpacht, International Law and Human Rights, chaps, ix, x, pp. 145 ff.; also J. Robinson, Human Rights and Fundamental Freedoms in the Charter 0/ the United Nations: a Commentary (New York: Institute of Jewish Affairs, 1946). I Cf. Ch. MaIik, Human Rights in the United Nations (New York: U. N., Department of Public Information, 1952), for a text of different draft conven• tions and other documents. For a detailed account and chronology of different events in the field of human rights see Yearbook 0/ the United Nations (New York: Columbia University Press for the U. N., 1946 on), under caption "Human Rights"; United Nations, Dept. of Social Affairs, Yearbook on Human Rights, 1946 on. a U. N. Charter, Article 2 (1,7). CLASSICS AND MODERN INTERNATIONAL LAW 13

Nations, is based on the assumption that states alone are sub• jects of internationallaw.1 At the present the core of the legal2 concept of sovereignty is the competence of states to deal exclusively with matters essen• tially within the sphere of "domestic jurisdiction." It is recog• nized, however, that the scope of this domestic jurisdiction which states exercise is not something prelegal but "within the limits fixed by internationallaw." Moreover, the extent of this "domestic jurisdiction" is changeable, inasmuch as states may by subse• quent treaties or acceptance of general custom admit that matters formerly essentially within their jurisdiction now receive regula• tion directly from internationallaw. 3 During the last century and a half, bilateral treaties and mul• tilateral conventions were the favored way by which inroads were made into the scope of domestic jurisdiction. Thus interna• tional protection was secured for an increasing variety of indi• vidual rights. Of particular importance were provisions for pro• tection of the rights of religious and ethnical minorities, and for creating special arbitral tribunals to adjudicate indivi• dual claims.' Most of these provisions were treaties of peace or instruments which were their immediate consequence. As such they tried to remedy particular situations existing in states which were constrained to accept the new regulations. Usually, therefore, unilateral, not reciprocal, obligations were created, with one or the other party to the treaty having the right to demand the fulfillment of such obligations.5 In some

1 Cf. also Article 34 (1) of the Statute of the International Court of J ustice. 2 Cf. de Visscher, op. eit., Bk. H, chaps. ii and iii, for a "political" concept of sovereignty. 8 TunisMoroeeo NationalityDeereesCase, P. C. I. J., Series B, No. 4 (1923), p. 453. According to Guggenheim the customary international law already determines the individual in certain exceptional cases as a subject of obligations, but not of rights. The latter are conferred upon the individual only through formation of new conventional internationallaw. Guggenheim, op. eit., I, 210 ff. , Cf. Guggenheim, op. eit., I, 283 ff., for a detailed enumeration of the different instances in which the rights of minorities, individuals and juridical persons of municipal law were accorded international protection in the past; also de Vis• scher, op. eit., p. 122. 6 "The stigma of inequality was attached ... to the minority system of Versailles. It was a special regulation applying to special states, and not a general system for the proteetion of minorities everywhere." E. Hula, "International Law and the Proteetion ofHuman Rights," Law and Polities in the World Community, p. 171, and passim for an extensive examination of the international labor conventions and international minorities protection. 14 CLASSICS AND MODERN INTERNATIONAL LAW instances also the individuals or groups ofindividuals thus benefited were enabled to undertake steps of their own for the safeguard of their rights. It is understandable that these treaties, creating special regimes within some states only, for the protection of special minorities or of specified individuals, were usually re• sented by the states thus obliged. Sometimes they were evaded completely.1 The considerations of state sovereignty and of the alleged exclusiveness of domestic jurisdiction from intervention from abroad were prominent reasons adduced on the side of such unilaterally obliged states to justify their evasions.2 The present development of international protection of human rights under the auspices of the United Nations began with the drafting and promulgation of general multipartite treaties and conventions imposing equal obligations on all states-parties.3 This represents the attempt to insure human rights on a general scale. The future of these solemn enactments, their feasibility and their enforcement is quite uncertain at the present time. Evenifthey become binding in a formal sense, theirworkability is at least precarious. From the legal point of view it seems that the states could, by general agreements of this kind, undertake definite obligations to respect human rights and could establish institutions whereby individuals could gain the direct protection of internationallaw. One could assert then that the individual as

1 In arecent case of this kind the Western Powers were unable to induce Bulgaria, Hungary and Rumania to observe treaty provisions relating to human rights because of the unwillingness of these three states to appoint their representatives to a Commission which would be entitled to arbitrate disputes arising from these provisions. They refused to do so in spite of their clear obliga• tion according to the treaties of peace of 1947 and the special Advisory Opinion of March 30, 1950, given by the Court of International ] ustice to this effect. Interpretation 0/ Peace Treaties with Bulgaria, Hungary and Rumania, Interna• tional Court of ]ustice, Reports (1950), p. 65, quoted in A. j. , XLIV (October, 1950),742 ff.; cf. M. O. Hudson, "The Twenty-ninth Year ofthe World Court," A. j., XLV (1951), 3ff. I Cf. Manner, "The Position of the Individual in International Law," pp. 389 f., and the bibliography there cited for an account of the breakdown of the minorities protection system partly because of these reasons. • Cf. ]ames Frederick Green, The United Nations and Human Rights (Wash• ington, D. C.: The Brookings Institution, 1956) for a detailed account of the developments in the United Nations Organization leading to the adoption of the "Universal Declaration of Human Rights" as approved by the General Assembly on December 8, 1948, to the first formulations of the "Draft Covenant on Civil and Political Rights" and "Draft Covenant on Economic, Social and Cultural Rights," and of the frustrating attempts to achieve signatures and ratifications of these convenants. The official texts in English of these documents are reprinted in the Appendices of the same work. CLASSICS AND MODERN INTERNATIONAL LAW 15

such could become a direct subject of internationallaw, and that thereby the conception of state sovereignty would be somewhat modified, of course with the consent of the states.1 Yet this by no means implies that individuals, even if accorded the statusofsubjectsininternationallaw, would be subjectsofthat law in the same sense as states are. If individual men become interna• tional subjects only because states assent to this, then they can be deprived ofthis personality in the same way. The states and their will thus still remain the ultimate determinants of international law. 2 In other words, the positivist formula that international law is based on the "common consent of States,"3 that it is a creation of their common will, would remain unimpaired.4

Reasons for the current interest in the position of the individual in international law. - The great interest in the rights of man and their protection by international law voiced today in political as weIl as in scientific literature is not merely an outgrowth of an overzealous humanitarianism. It is true that the re action against the inhuman actions of the Axis and later of other totalitarian powers provided one of the mainsprings for con• tinued interest ofwide segments ofpublic opinion throughout the world in these problems. But independently of this interest, the in• creased international intercourse provides more and more cases which require a regulation by internationallaw and which can only with difficulty be subsumed under the tradition al positivist doctrine that assurnes that only states are subjects of internatio• nal law.5 These difficulties arose just for the reason that indivi• duals as such, and not states, were involved in ways that did not necessarily concern their states.6

1 This was in essence the dictum of the Permanent Court of International J ustice in the advisory opinion on the ] urisdiction 0/ the Courts 0/ Danzig Case (1928). 2 Hula, op. eit., pp. 179 ff. 3 Oppenheim, op. eil., I, par. 13, 18. • HIt is inherent in the concept of fundamental rights of man that those rights inhere in the individual and are not derived from the state." Ph. C. Jessup, A JI.,fodern Law 0/ Nations (New York: The Macmillan Company, 1952), p. 90. • Cf. J essup, A Modern Law 0/ Nations, passim, for many illustrations of an easier solution of international legal problems, if the old notion of international law as a law between the states were discarded and the possibility of an inter• nationallegal regulation ofrelations between individuals and between individual and states were admitted. 6 The problems of statelessness and of the refugees is a typical example. This problem was almost unknown before the First World War. It gained compara- 16 CLASSICS AND MODERN INTERNATIONAL LAW

The reason why the position of the individual is today a topic of great scientmc interest for all connected with the theory of internationallaw1 is to be found in the inadequacy of the tradi• tional positivist doctrine in dealing satisfactorily with this prob• lem. The positivist formula that states are subjects and individ• uals are objects of internationallaw simply does not correspond any longer to the present state of affairs. Pragmatically, therefore, an international law of wider scope is necessary in order to satisfy the new needs. The empirically observed relations in a certain sense outgrew the old positivist formula. A possible solution to meet this demand is to redefine the concept of internationallaw, and in accordance with such a new definition, to add to the subjects of that lawentities other than states, particularly individuals.2 This was the way already proposed by Spiropoulos in the between-war period.3 According to him the science can derive the material content of the rules of international law only in an empirical way, i.e., from existing international practice. How• ever, the definition of a rule as a rule of internationallaw depends not upon the material content of that rule, but on the arbitrary qualification of the observer, based on an apriori criterion set tively minor importance after that war, but assumed great dimensions after the Second World War. Cf. Guggenheim, op. cit., pp. 324 ff. The position of employees of different international organizations is another such example. Cf. ibid., p. 284, parlicularly note 2. 1 Some recent important works on the subject, in addition to those previously referred to, are: SirW. E. Becket, "Human Rights," The Gf'otius Society, Tf'ansac• tions, XXXIV (1948), 69-75; R. O'Sullivan, "The Concern of the International Law for the Individual," ibid., pp. 6-29; R. Cassin, "La Declaration universelle et la mise en oeuvre des droits de l'homme," Hague Recueil, LXXIX (1951), 237-367; P. N. Drost, Human Rights as Legal Rights; the Realization 0/ Individual Human Rights in Positive Intef'national Law (Leiden: A. W. Sijthoff, 1951); A. N. Holcombe, Human Rights in the Modef'n WOf'ld (New York: New York University Press, 1948); B. S. Mirkin-Guetzevich, "L' O. N. U. et la doctrine moderne des droits de l'homme (theorie - techniques - critique)," Revue genbale de df'oit intef'national public, LV (1951), 161-198. • Professor Jessup thus redefines and re-examines the theory of a "modern" law of nations on the basis of two new hypotheses with the aid of which it would be possible to adapt internationallaw to the new demands. These two hypotheses are: (1) "that internationallaw does apply directly to the individual," and (2) that there exists "the principle of community interests in the prevention of breaches of internationallaw." "The two hypotheses taken as the basis of the present re-examination of international law would involve an alteration of the traditional notion of sovereignty." Jessup, op. eit., pp. 10, 12 f. a J. Spiropoulos, "L'Individu et le Droit International," Hague Recueil, XXX (1929),209 ff. CLASSICS AND MODERN INTERNATIONAL LAW 17

up by that same observer.1 The juridical rules of different legal systems frequently have an almost identical content. Whether or not, the particular rule belongs to one system, depends, there• fore, on the initial definition of that system and not on any in• herent quality and content of the rule. In this sense the tradi• tional doctrine could simply be extended to cover the new rules that came into being after the organization of the international community underwent a certain transformation whereby entities other than states also became participants in international relations. In this sense, of course, the concept ofinternationallaw and that of the subject of that law are functionally interdepend• ent, both being equally based on an arbitrary apriori definition.2 There is no difficulty, in theory at least, in redefining inter• nationallaw in such a way that individual men would be subjects of that law, if it all depends only on the arbitrary apriori stand• point of the observer. The question is only whether such a procedure would not give rise to a system of wishful thinking instead of to a system of rules of internationallaw. To maintain that from the purely theoretical standpoint any definition of internationallaw is acceptable as long as it enables a distinction between its rules and rules not belonging to it,3 is to beg the question. Thls opinion implies that before one sets up the a priori definition of international law he already knows which rules or which relationships belong to this law. If this is already

1 Ibid., p. 213. • "Ce qui s'est passe en realite, c'est simplement que le concept classique du droit international [i.e., le droit international est I'ensemble des normes reglant les relations des Etats] a subi une extension en vue d'y comprendre egalement d'autres normes quiontprisnaissance ala suite des transformations de I'organisa• tion internationale. In ne saurait etre question dans cet ordre d'idees d'une definition du droit des gens 'meilleure' ou 'pire,' 'exacte' ou 'inexacte,' chaque definition du droit des gens etant au point de vue purement theorique egale• ment arbitraire.... Une bonne part des divergences des auteurs sur les rapports du droit des gens et de l'individu, provient de ce que par 'sujet de droit des gens' on n'entend pas le meme 'substratum.' ... Avec une teile [i.e., apriori] definition du sujet du droit des gens, les sujets de ce droit sont naturellement partie integrante de la definition du droit des gens lui-meme qui repose en effet sur eux. La definition du droit des gens est donc par consequent ici fonction de la determination des sujets du droit des gens .... Il est evident que [Ie] concept du 'sujet de droit des gens' est aussi arbitraire que le concept du 'droit des gens' lui-meme, l'un et I'autre n'ayant pas une origine empirique, mais etant deter• mines apriori." Ibid., pp. 218 f. 3 .. Ainsi au point de vue purement theorique est acceptable toute definition du droit des gens permettant de distinguer ses normes d'autres normes." Ibid., p.216. 18 CLASSICS AND MODERN INTERNATIONAL LAW known, then there is no need to construct a definition in order to determine it. But this procedure leaves unanswered the most im• portant question: how do we know that a rule belongs to inter• national law and that a relationsbip should be regulated by the law?

Analysis oj the Positivist Doctrine

The positivist method. - To answer tbis question the traditional positivist doctrine made use of a set of assumptions. Yet these were considered almost sacred and not open to ephemeral changes caused by events. In accordance with these fundamental assumptions or "basic principles" the empirically observed rules were then classified into a system of international law or ex• cluded from it.1 "Positivism" in international law does not represent any co• herent and rigid school of thought.2 While the writers who claimed to be or were accused of being positivists differed widely in their conceptions of what the particular basic principle or principles of international law are, there was, nevertheless, an almost general agreement among them that law is the product of a legally relevant will and that in the international sphere the states through their consent create international law among themselves. Hence all legal rules, the law "that is," must be contained in empiricallyobservable enactments (such as treaties, recorded and observed custom), representing obligations and rights explicitly accepted and recognized by states. The inter• national law would then be a system of rules regulating the

1 "A systematic conception of international law must be based, according to the positivistic school, on the legal rules which are actually observed by the states in their relations. No theory can be deemed correct unless its conclusions, with respect to any particular question, are consistent with the international practice. Precise knowledge of this practice is therefore aprerequisite to the formulation of any theory of international law. But the analysis of particular rules cannot be assumed as the point of departure for a complete and systematic study of internationallaw. It is necessary, on the contrary, to start with the basic principles of international law and to ascertain the nature and fundamental characteristics of this legal system. Only by placing the scattered rules of interna• tionallaw under the appropriate general principles from which they are derived is it possible to grasp their meaning and implications, to reconcile their apparent contradictions and to find a solution for cases of first impression." Sereni, ap. eit., p. 212. • Cf. Q. Wright, "Legal Positivism and the Nuremberg ]udgment," A. J., XLII (1948),405, n. 2. CLASSICS AND MODERN INTERNATIONAL LAW 19 mutual behavior of states, created and enforced through the consent of the states, and ordered into a coherent whole by a unifying basic principle. Thus ]ellinek considered the sovereignty of states as such a fundamental principle. On this principle he builds up the sys• tem of internationallaw according to the theory of self-limitation. "Sovereignty is that attribute of the state in accordance with which it can become legally bound only by its own will." Hence only the norms which are accepted by sovereign states in the process of self-limitation represent the mIes of internationallaw.1 Triepel, rejecting the theory of self-limitation as juridically impossible, founded internationallaw on the "Vereinbarung" or common will of the states. Not the several individual wills of single states, but the common will of all states consenting to a rule creates the binding force of internationallaw. This common will of all states reminds one very much of Rousseau's concept of the "volonte generale."2 Similarly, Oppenheim considers as a fundamental prin• ciple the common consent of states that a rule is valid and en• forceable as a rule of internationallaw. To hirn every legal sys• tem, municipal as weIl as internation~l, is derived from such a common consent of the legal community in which the mIes of the particular law are applied. Municipal as well as international law is thus formed in a similar manner with the difference that the consenting units in the formation of the former are individual men while in the formation of the latter only the personified states are relevant. 3

1 "[Souveränität] ist die Eigenschaft eines Staates, kraft welcher er nur durch eigenen Willen rechtlich gebunden werden kann." G. Jellinek, Die Lehre von den Staatenverbindungen (Vienna, 1882), p. 34, quoted with an extensive criticism in L. Nelson, Die Rechtswissenschaft ohne Recht (Leipzig: von Veit & Co., 1917), pp. 59:tr. 2 H. Triepel, Völkerrecht und Landesrecht (1899), and "Les rapports entre le droit interne et le droit international," Hague Recueil, I (1923), 77-121. For a criticism of Triepel's infiuential common-will principle see H. Lauterpacht, The Function of Law in the International Community (Oxford: The Clarendon Press, 1933), p. 415; Ch. de Visscher, "Contribution a l'etude des sources de droit international," Revue de droit international et de tegislation comparee, 3rd Series, XIV (1933), 398; J. L. Brierly, "Le Fondement du caractere obligatoire du droit international," H ague Recueil, XXIII (1928), 48 f.,; Briggs, op. cit., editorial note, p. 22. 3 "[L]aw is a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power." Oppenheim, op. cit., I, par. 5, 8. "What has been said with regard to law pure 20 CLASSICS AND MODERN INTERNATIONAL LAW

Anzilotti, c10sely following Triepel, established as the basic principle of intemationallaw the rule pacta sunt servanda. "States are bound because, and so far as, they wish to be bound. Even the obligatory force of the rule pacta sunt servanda is derived from nothing other than the collective will of the states."l

The opposition to the influence 0/ concepts 0/ naturallaw. - The notion that the law is a product of a will,2 that it is a subjective creation of the relevant legislators, which then can be objectively and empirically ascertained by the observer, and that it is not dependent on some metaphysical, moral or ethical principles which would exist independently of the will of states, was tenaciously followed by the modem strict positivists because of their almost passionate insistence on eliminating any influence of the law of nature from legal thinking and from the theory of in• temationallaw. The early positivist writers of the sixteenth, seventeenth and eighteenth centuries did not deny the existence of a law ofnature. However, they considered it as a binding system of morality and not of law proper. They were positivists insofar as they tried to establish legal rules primarily from the practice of states.3 and simple applies also to the Law of Nations. However the community for which this Law of Nations is authoritative consists not of individual human beings, but of individual states." Ibid., par 12, p. 16. "As the basis of the Law of Nations is the common consent of the member States of the Family of Nations, it is evident that there must exist, and can only exist, as many sources of inter• national law as there are facts through which such a common consent can possibly come into existence. '" The sources ofInternationallaw are thereforetwo• fold-namely: (1) expressconsent ... [and] (2) tacitconsent .... " Ibid.,parl6, p.21. 1 D. Anzilotti, GlWSO di diritto internazionale (3d ed.; Roma: Athenaeum, 1928), as quoted by Sereni, op. eit., p. 216. I A good illustration of this notion is given in the decision of the Permanent Court of International Justice in the Lotus Gase, P. G. I. J., Series A, No. 10 ( 1927): "The rules of [international] law binding upon States ... emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achieve• ment of common aims." Quoted by Briggs, op. eit., p. 6. a "The law of nations, designated by Gentilis ius gentium is that law which all nations or at least the greater part of them, 'maior pars orbis,' agree upon.... These laws have, on the one band, a positive basis - the 'usus gentium' - and, on the other, are due to the exigence of natural reason. The authority of the ius naturae, or ius naturale or ratio naturalis was invoked by all writers, earlier and later, including Grotius, and even such positivists as Bynkershoek, and De Martens.... Very frequently we find that Gentilis appeals to the ius naturae in order to test the validity of any doctrine or the legitimacy of any practice, and usually disregards the current vague metaphysico-legal significance of that CLASSICS AND MODERN INTERNATIONAL LAW 21

The modem strict positivists, on the other hand, tried to deny not only that natural law is apart of morality, but also that there is any system of morality which would have a universal validity and influence on positive law, least of all on the law valid for states in the community of nations. There is no ground for agreement between this strict positivism, also called philo• sophieal, and any law of nature theory.l Admittedly some positivists tried to take aradical, unrealistic, hence also un• positivistic attitude in deriving mIes of international law from the will of states. This they did in order to eliminate any possible remainders ofnaturallaw from this field. 2

Historical elements in the positivist doctrine. - The second notion, that only states are able to express the legally relevant will which has the quality of creating the mIes of internationallaw, was actually a common product of several historical factors antedating the advent of legal positivism in the field of inter• nationallaw. This notion is a residuum of the dominant political term, and interprets it in the sense of humanity, justice, the highest common sense of mankind. 'Habet ius gentium rationes naturales quae, insitae omnibus a natura, sic notae sunt ut argumento nullo indigeant, nullaque, quibus adpro• bentur, arte.' Gentilis De Legationibus ii. 18." C. Phillipson, "Albericus Gentilis," in J. Macdonell (ed.), Great jurists of the World (Boston: Little Brown, 1914), pp. 118 f. Cf. also Ch. de Visscher, TMories et Realites en Droit International Public, p. 34. The first tme positivist who rejected the natural law as a founda• tion for the law of nations and who demanded that all the norms of the latter should be obtained only from the observed state practice was Moser. See A. Verdross, "J ohann Jakob Mosers' Programm einer Välkerrechtswissenschaft der Erfahrung," Zeitschrift für öffentliches Recht, III (1922-23), 96 ff. 1 A. Verdross, Völkerrecht (2nd ed.; Wien : Springer-Verlag, 1950), pp. 54 f.; cf. also Visscher, TMories et Realites en Droit International Public, p. 71. 2 "Anzilotti took an uncompromising attitude and expounded some theories (for example, that of state recognition) which were hardly consistent with the real relations among states, in order to remove any infiuence of naturallaw from the law of nations." Sereni. op. cit., p. 267. According to Professor Morgenthau there is, at the basis oflegal positivism, "the hostility to all matters metaphysical, that is those which cannot be ascertained by actual observation. Since non-legal mIes have generally entered the horizon of the positivist jurist as metaphysical mIes of natural law, the positivist is inclined to identify natural law and ethics as such, and to repudiate both as metaphysics. However, to exclude apriori a certain subject-matter from scientific research by calling it metaphysical, instead of impartially examining actual experience, is to blind oneself to a preconceived idea originating not in experience, but in mere reasoning, and thus to do violence to the facts. Hence, the positivist concept of the normative sphere itself reveals a metaphysical attitude, a kind of negative metaphysics which plainly contradicts the very assumptions of a positive science." Morgenthau, "Positivism, Functionalism and International Law," A. j., XXXIV (1940), 268. 22 CLASSICS AND MODERN INTERNATIONAL LAW theories of the eighteenth and nineteenth centuries which vener• ated, sublimated and personified the concepts of state and of sovereignty, thus providing a theoretical framework for the existence of the nation-states as the sole participants in inter• national intercourse. Last but not least, the name with which the body of rules regulating this intercourse was labeled, namely "internationallaw" or the "law ofnations," contributed its share, too.

The concept of the personified sovereign state. - A characteristic in the development of international legal theory is that writers who did not concern themselves expressly with the problems of internationallaw but remained primarily political theorists ex• erted a strong influence on actual international publicists. This interdependence contributed to the notion that the state is the starting point of any legal inquiry.l Of particular importance were those political and legal philosophers, such as Hobbes, Spinoza, and Austin, who in principle denied any validity to international law as law, because they saw in the state the final vertex of the human organization. Moreover, they conceived as law only those rules which are issued and enforced by a superior power. Since such power of command and enforcement is lacking in the international community, international law, according to them, is not a true law at all.2 Similarly the philosophers and political theorists of German idealism exerted a strong influence on the theory of international law by their extreme glorification of the state. Hegel himself, in contrast to some neo-Hegelian thinkers, did not deny the existence of an international law. Yet he considered it as an "outward public law of state" (äusseres Staatsrecht) because,

1 "For the relation between political theory and internationallaw is of a more pervading character than is commonly assumed. I t is the ultimate results of the theory of the state which are resorted to by internationallawyers as the founda• tion of their systems. A political doctrine based on the omnipotence and glori• fication of the state as an end in itself will naturally result, and has usually re• sulted in the negation of the law of nations as a body of rules which both in its binding force and in its creation is independent of the state. The present, still rudimentary, state of international law is not in a small degree due to the prevalence ofthis type of doctrine." H. Lauterpacht, "Spinoza and International Law," British Yearbook oi International Law, VIII (1927), 91. • Ibid., passim. Cf. Verdross, Völkerrecht, p. 56; Visscher, Droit International Public, p. 46. CLASSICS AND MODERN INTERNATIONAL LAW 23

to him, the state represents "the reality of the moral idea" (Wirk• lichkeit der sittlichen Idee) and the "true God" on earth. For Hegel state sovereignty is, therefore, an absolute one that cannot recognize any higher law. Hegelian internationallaw is, therefore, based only on the will of different states. The states are living among each other in astate of nature. The law prevailing among them has its origin not in apower above them but in a specially declared will of themselves. This con• struction is very much akin to the Jellinek's later theory of self• limitation. In spite of his recognition of internationallaw as the outward public law of the state, Hegel virtually stands on the same footing as the outright deniers of internationallaw.1 Law, as a body of normative rules, is unthinkable unless it applies to rational beings capable of obeying it. Such are, of course, individual men. Therefore law can be said to be a "body of rules for human conduct."2 In order that states as such can become subjects of law, they must be endowed with reason and will; they must be personified. Once this feat of fiction is completed, there is no obstacle to prevent international law from representing a body of rules for the conduct of states.3 The Spanish theologians and Grotius still thought of the jus gentium as personally bin ding sovereign princes and other per• sons participating in international intercourse.4 Gradually, how-

1 Verdross, Völkerrecht, pp. 58 ff. For a good outline of the concepts of inter• national law held by Kant, Hegel, Fichte and by their followers in the literature of international law see earl Kaltenborn von Stachau, Kritik des Völkerrechts nach dem jetzigen Standpunkte der Wissenschaft (Leipzig: Verlag G. Meyer, 1847). pp. 133 ff., and by the same author, Die Vorläufer des Hugo Grotius auf dem Gebiete des Ius naturae et gentium sowie der Politik im Reformationszeitalter (Leipzig: Verlag G. Meyer, 1848), pp. 59 ff. 2 Oppenheim, op. cit., I, 8. a Ibid., p. 16. • "When Grotius thought of the duties of sovereigns as the duties of individual men he was not thinking metaphorically. He was thinking in terms of the moral and legal duties that rested on Ferdinand and Louis and Philip and J ames as completely as upon Titius and Seius and Maevius, and for the same reason, namely. that in each case they were men and hence moral and rational entities with power to do the things which reason and conscience prescribed as the course which they should take. When sovereignty passed from the sovereign king to the sovereign people, when kings began to reign but not rule ... a pro• found change took place in the facts to which internationallaw was to be applied, the effects whereof have been manifest increasingly in the present century. J uristically the people as a collective entity took the place of the king .... [Inter• national law] was no Ion ger a system imposed on one responsible man in each land, nor, as things came to be. upon adefinite small cohesive group of men. It was expected to govern whole populations, not by acting upon single individuals 24 CLASSICS AND MODERN INTERNATIONAL LAW ever, the process of personiftcation of the state eroded this conception until Vattel expressly established the law of nations as the law between sovereign states only.l The states not only became fictitious subjects of rights and duties; they even came to displace the individual man entirely from the system of inter• nationallaw. The fiction of the juristic personality as an abstract bearer of collective rights and duties is a useful one in the domain of private and procedurallaw. It also has certain useful analogical applications in internationallaw.2 Yet this fiction becomes much weaker or even inapplicable in some other fields of law, as in criminal law. There the relevant actions, crimes, are com• mitted only by men, regardless of whether the rule against which the crime was committed belongs to municipal or international law.3 It is an overexaggeration to maintain that international relations could exist only in relations between states in their public corporate capacity. 4 Yet the extreme personification of the sovereign state in internationallaw produced theoretical assump• tions exact1y to this effect. The absorption of the individual and any other non-state entity under the domain of the territorial sovereign state produced a theoretical monopoly of states in international relations.5

therein, but taking each population as a legal unit, and it was expected to do this through the juristic assumption that each population as a collective person was accountable and amenable to legal reason as such." R. Pound, "Philosophi• cal Theory and International Law," Bibliotheca Visseriana, I (1923), 78. Cf. also G. Scelle, Droit International Public (Paris: Domat-Montchrestien, 1944), p. 31. 1 Cf. infra, chap. iii, pp. 166---71. I Cf. F. S. Dunn, "The International Rights of the Individual," Proceedings of the A. S. I. L., XXXV (1941), 16; H. Lauterpacht, Private Law Sources and Analogies of International Law (Lendon: Longmans, Green and Co., 1927), especially paragraph 33 "The Personification of the State." a Cf. the ]udgment of the International Military Tribunal in Nuremberg, quoted supra, p. 5. While this position is in general true as far as the logical principles are concerned, the juristic constmction nevertheless permits in some states that a crime be considered as committed by a corporation or similar juristic personality. See Quincy Wright, A Study of War (Chicago: The University ofChicago Press, 1942), H, 914, n. 67. For a general discussion ofproblems arising out of individual criminal liability in international law see Quincy Wright, "Proposal for an International Criminal Court," A. J., XLVI (January, 1952), 60--72 and the bibliography there quoted. 4 Cf. W. B. Cowles, "The Impact of International Law on the Individual," Proceedings 0/ A. S. I. L., XLVI (1952), 78 ff. & Cf. Nys, Le Droit International, I, 60. CLASSICS AND MODERN INTERNATIONAL LAW 25

Terminology 0/ international law. - Together with the juridical personification of nation-states, the terms "internationallaw" and the "law of nations" received the special meaning of an exclusive law between the sovereign states.1 Historically these terms go back to the Roman "jus gentium." This was considered as a part of the private law and regulated many relationships arising from legal transactions between the variety of peoples who communicated within the Roman empire. According to Roman writers, a number of most important contract forms and ac• tions in their defence were derived from this jus gentium.2 This law was a rational generalization from the principles of law and justice recognized by various nations, or gentes, not states, in the Mediterranean area. Its aim was to treat relations between individuals belonging to different nationalities of the empire from the point of view of reasonableness and equity applicable to all varieties of the human race and not only to the privileged citizens of one city-state.3 The formal definition of jus gentium given in ]ustinian's Institutes,4 therefore, to some extent implies equity and the Stoic conception of the law of nature. Yet the Roman jus gentium had, nevertheless, adefinite origin in legal and judicial practice, and in the multinational usages and customs, too. Besides this jus gentium Romans knew another system of rules applicable to the outward public relations of the Roman state. These were the rules concerning ambassadors, the right to war (bellum iustum concept), rules about the declaration of war, conclusion of peace treaties, etc. These rules were usually referred to as jus fetiale, but some Roman writers, not necessarily jurists, also used the common expression of jus gentium when referring to such transactions.5

1 "International law governs relations between independent States." The Lotus Case, P. C. I.]., Series A, No. 10, Briggs, op. eit., p. 6. 2 Institutiones i. 2. 2. Textual references made to Th. Mommsen and P. Krueger (eds.), Corpus iuris civilis, Vol. I: Institutiones, P. Krueger ed., Digesta, Th. Mommsen and P. Krueger eds. (I6th ed.; Berolini: apud Weidmannos, 1954). 3 P. Vinogradoff, "Historical Types of International Law," Bibliotheca Visseri• ana, 1(1923),25 f., 32 f. • "Quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur vocaturque ius gentium, quasi quo inre omnes gentes utuntur." Institutiones i. 2. I. 5 Cf. Leo Strisower, Der Krieg und die Völkerreehtsordnung (Wien: Manzsche Verlags- und Universitäts-Buchhandlung, 1919), pp. 42 ff. and the bibliography there quoted. 26 CLASSICS AND MODERN INTERNATIONAL LAW

In the beginning of the seventh century Isidore of Seville, in his posthumously edited work Etymologiae, made a description of the jus gentium1 which had far-reaching influence. He synthesized the different Roman ideas of law to a certain degree. Thus his description or enumeration of topics contains a variety of subjects partly belonging to the Roman jus gentium proper, and partly to the jus jetiale. But this definition comprises inter• national relations in their entirety very weH. Included in it are also some matters that belong to the jus militare or rules concerning military discipline. Isidore's definition of ius gentium is important because it was taken over together with his con• current definitions of jus naturale and of jus civile by Gratian in his Decretum. 2 The Decretum, having the authority of an official compilation of canon law, was taught, discussed and widely commented upon over the centuries. Isidor's distinctions thus took firm root in mediaeval teaching and doctrine.3 The Spanish theologian Francisco de Vitoria redefined the jus gentium by substituting in the partial quotation from Justinian's Instit'Utes the word "gentes" for "homines."4 Yet it would be wrong to assurne that he meant by "gentes" some abstract juridical entities between whom natural reason would establish some laws. His law of nations applied to men, to sovereigns, their counsellors and others responsible for the foreign relations of the

1 "Ius gentium est sedium occupatio, aedificatio, munitio, bella, captivitates, servitutes, postliminia, foedera pacis, induciae, legatorum non violandorum religio, connubia interalieni genus prohibita." Etymologiae (Originum) v. 5, as quoted by A. de LaPradelle, "La Place de l'homme dans la construction du droit international," Current Legal Problems, I (1948), 143, n. 11. • Cf. J. Kosters, "Les Fondements du droit des gens," Bibliotheea Visseriana, IV (1925), 10 f. The time of Gratian's reception is estimated between A. D. 1130 and 1150. For exhaustive treatment of Isidore's infl.uence on canon law in con• nection with these definitions see Dom Paul Sejourne, Saint I sidore de Seville, son role dans l'histoire du droit eanonique (Paris: G. Beauchesne, 1924), especially pp. 66, 70 f. with bibliography there quoted. 3 Nys, Le Droit des gens et les aneiens juriseonsultes espagnols (La Haye: 1\I. Nijhoff, 1914). pp. 24 f., who points out also the divergencies of opinion as to which Roman writers should be considered as sources for Isidor's definitions. Cf. also Nys, Le Droit international, I, 50; Nussbaum, op. eit., pp. 41 f. • "[Ius gentium] vel est ius naturale vel derivatur ex iure naturali (Inst., De iure naturali et gentium): 'quod naturalis ratio inter omnes gentes constituit, vocatur ius gentium.'" Francisci de Victoria, De Indis et de lure Belli Releetiones, E. Nys ed., "The Classics of International Law," No. 7 (Washington: Carnegie Institution of Washington, 1917), De Indis, Sec. In, p. 252; in English transla• tion: "Law of nations (jus gentium) ... either is natural law or is derived from naturallaw (Inst. i. 2. 1): 'What natural reason has established among all nations is called jus gentium.'" Ibid., p. 151. CLASSICS AND MODERN INTERNATIONAL LAW 27 state, as weIl as to private individuals, like merchants, having contact with other nations. All these were bound by this law individuaIly in their consciences. In the passage where his famous definition of jus gentium appears, he actually tries to prove the natural society and fellowship existing among all men, therefore extending also to relations between Spaniards and the newly discovered Indians. In the sentence after the definition, Vitoria also uses the term "nationes," when he maintains that "it is reckoned among all nations inhumane to treat visitors and foreigners badly."l The right offree intercourse and commerce all over the world is to Vitoria not a right of states but a right of individuals. In an example he attributes this right not to the Spanish king against the French king, as the respective representa• tives of their states, but to Spaniards against France and to Frenchmen against Spain, hence to individuals on a worldwide scale. 2 Like Vitoria, other mediaeval and early modern writers on the problems of the law of nations recognized that the state or the people as a collectivity can have special rights and duties, yet they in no way conceived of international law as a law between abstract entities. Together with the law of nature it was considered binding upon individual men when they were engaged in actions of international character.3

1 Ibid. Cf. also the following passage: "International law has not only the force of a pact and agreement among men, but also the force of a law; for the world as a whole, being in a way one single state, has the power to create laws that are just and fitting for all persons, as are the mies of international law. Consequently, it is clear that they who violate these international mIes, whether in peace or in war, commit amortal sin; moreover, in the gravest matter, such as the inviolability of ambassadors, it is not permissible for one country to refuse to be bound by internationallaw, the latter having been established by the authority of the whole world." Vitoria, De Potestate Civili, as quoted in Herbert Wright, Catholic Founders 0/ Modern International Law, Reprint from the records of the American Catholic Historical Society, June, 1934 (Washington, 1934), pp. 15 f. Cf. also by same author, "The Moral Bases of International Law," Proceedings 0/ the A. S. I. L., XXXV (1941), 58. 2 "It would not be lawful for the French to prevent the Spanish from traveling or even from living in France or viceversa .... Therefore it is not lawful for the Indians." Vitoria, De Indis, p. 151. 3 "Quels etaient les sujets du droit naturel et du droit des gens tels que nous apprenons ales connaitre chez les precurseurs de Grotius? On comprenait parfaitement, que l'Etat ou le peuple ... forme une unite et que, comme tel, il possede le pouvoir d'agir, et ades droits et des devoirs. C'est ainsi que Legnano dira pour la justification des represailles, que la communaute est un corps mystique et peut defendre les membres de son propre corps. Les individus, affirme Gentilis, sont autre chose que la communaute; celle-ci n'est donc pas 28 CLASSICS AND MODERN INTERNATIONAL LAW

Grotius, too, did not identify the jus gentium with a law binding abstract moral persons. To him the term "jus gentium" meant the particular positive law which, with the consent of nations, supplements the law of nature and which together with it regulates the totality of international relations.! A slight connection with the presently used term "international law" can be seen in his description of the object of his treatise as "ius illud, quod inter populos plures aut populorum rectores intercedit."2 In one single though important connection he considered some rules of the law of nations, i. e. of this jus gentium, as concerning nations only, namely when he dealt with the permissibility of the "lawful" war between sovereigns as distinguished from the "just" war according to the law ofnature.3 In general, however, Grotius considered that his main task was to givea "well-ordered presentation"4 ofthe "common law amongna• tions."5 Thus the subject matter of his treatise De iure belli ac pacis was the "controversies among those who are not held to- responsable des faits illicites des sujets.... Les droits du peuple ne se trouvent pas dans les individus, mais ont leur siege dans la communaute, allegue Ayala, pour demontrer, que le chef de l'Etat est lie par les actes de ses predecesseurs.... Cependant, ni le caractere du droit naturei, ni celui du droit des gens tel qu'il avait ete transmis par les Romains a. des generations posterieures, ne conduisaient a. l'adoption d'un droit separe dont les Etats, comme unites, etaient exclusive• ment les sujets. Pour ce qui concerne le droit naturei, celui-ci avait ete grave par Dieu dans le coeur de chaque homme en particulier; il existait deja. avant la formation des Etats.... Il n'en etait pas autrement du droit des gens. Certes on basait d'ordinaire ce droit sur le consentement des peuples; mais cela n'avait pas pour consequence que les peuples devinissent des lors les sujets de ce droit, en tant qu'unites. Le caractere du droit naturel et du droit des gens devait favoriser !'idee d'un genre humain, formant une seule communaute nonobstant sa division en etats qui avaient chacun leur droit propre - le droit civil - mais etaient regis, pour le reste, par des regles communes de droit naturel et de droit des gens. Bien plus que les Etats, considere-t-on ordinairement les hommes comme les membres de cette immense communaute." J. Kosters, "Les Fon• daments du droit des gens: Contribution a. la theorie generale du droit des gens," Bibliotheea Visseriana, IV (1925), 32 ff. 1 Cf. infra, chap. ii, pp. 80 ff. I Hugo Grotius De iure belli ac paeis libri tres (1646 ed.), 2 vols., "Classics of International Law" No. 3, Vol. I (Washington, 1913), Photocopy of the Latin original; Vol. II, translation by Fr. W. Kelsey et al., with an Introduction by J. B. Scott (Oxford, 1925). The cited sentence is from Prolegomena par 1 (italics added), unpaged in the original Latin edition. Note: Henceforward references to De iure belli ae pacis will be made by quoting Grotius (sie) only, followed by appropriate book, chapter, paragraph, and page data. If not other• wise mentioned, reference is to the Vol. II translation. 8 Ibid. iii. 3. 12. 639. , Ibid. Prolegomena par. 29, p. 21. 6 Ibid. par. 28, p. 20. CLASSICS AND MODERN INTERNATIONAL LAW 29 gether by a common bond of municipallaw. "1 Though he was aware ofthe exalted position of sovereigns , and ofthe greater importance of public relations, there is no trace in his system of an intention to limit the law of nations exclusively to relations between states considered as abstract entities. However, once phrases like "inter omnes gentes," "inter populos" or "gentium inter se"2 were coined, they became slowly adapted, in spite of the quite different intentions of their authors,3 to the emerging concept of the personalized and sov• ereign nation-state. Words like gens, gentes, natio, populus, and others, lost their meaning of the muItitude of co-nation als and became used more and more to designate the juridical perso• nality ofthe state. The first to use the term "jus inter gentes" was Richard Zouche, who published his treatise Juris et judicii jecialis, sive juris inter gentes, et quaestionum de eodem explicatio five years after Grotius' death.4 Again it was more the phrase than Zouche's ideas that received favorable treatment "by the press" and placed the author high among the founders of internationallaw.5 To Zouche the law in general is based on the "ratio communis

1 Ibid. i. 1. 1. 37. "Such controversies may arise among those who have not yet united to form a nation, and those who belong to different nations, both private persons and kings; also those who have the same body of rights that kings have, whether members of a ruling aristocracy, or free peoples." Ibid. 2 " ••• ad mutuam gentium inter se societatem, ... "Ibid. ii. 8. 1. 196. Latin original (italics added). 3 "C'est avec un veritable etonnement qu'on lira desormais chez les classiques du XIXeme et du XXeme siecles qu'a la difference de I'Etat, sujet du droit international, l'homme en est simplement l'objet. Ni Vitoria, ni Grotius n'ont jamais, entre l'homme et I'Etat, mis cette difference ecrasante pour le premier vis-a-vis du second. C'est a tort que de Louter presente le Dominicain de Sala• manque comme ayant intentionnellement substitue, dans la formule de Gaius, ,jus inter gentes a jus inter homines, pour chasser l'homme de l'ordre general du monde devenu simplement un ordre interetatique. Pour Vitoria, disciple de Saint• Thomas, gentes n'a jamais eu qu'un sens humain, l'ensemble des generations, et non, comme Etat, un sens politique." De LaPradelle, op. eit., p. 145. • (1650 ed.) reprinted in "The Classics oflnternational Law," No. 1, Sir T. E. Holland, Introduction, and J. L. Brierly trans. (2 vols.; Washington, 1911). S "Zouch [sie] a toujours eu une bonne presse.... Surtout c'est la tres heureuse trouvaille de l'expression jus inter gentes, pour designer le droit international public, qui vaut a notre auteur la place d'honneur au debut de tous les livres qui traitent de cette science, et le fait intervenir presque fatalement a l'appui de toutes les definitions. Certes, son merite n'est pas mince d'avoir pressenti la portee d'une science encore a ses debuts et d'en avoir d'un mot precise les con• tours. On peut se demander cependant s'il attribuait aux mots jus inter gentes la signification quasi revolutionnaire qu'on leur donne parfois." G. Scelle, "Zouch," in A. Pillet (ed.), Les Fondateurs du Droit International (Paris: V. Giard & E. Briere, 1914), p. 269 f. 30 CLASSICS AND MODERN INTERNATIONAL LAW humanae." As such, alilaw is derived from a common source and is applicable to human relations in different communi• ties, among which the community existing between the na• tions, "inter gentes," is just one. The "jus inter gentes" thus is not an independent system of law between some abstract entities, but simply one part ofthe whole body of laws regulating human intercourse.1 Slowly, however, the new phraseology took root in political literature, yet with the new meaning. The phrase "droit entre les gens" was used in the first part of the eighteenth century by the Frenchman Henri-Fran<;ois D'Auguesseau in his work Institution au droit publie. 2 At the same time (1738) Charles-Irenee Caste! de Saint-Pierre in his Ouvrajes politiques [sie] employs the expressions "droit entre nations" and "droit public entre nation et nation." Somewhat later, Emer de Vatte! considered the law of nations (droit des gens) as "applied to the conduct and to the affairs of nations and of sovereigns." His work was based expressly upon the premise of a law of nations as a law between the moral pcrsonalities represented by the nation-states.3

1 "Le droit est fonde sur la ratio communis humanae; teile est l'idee directrice qui apparait dans les Elementa jurisprudentiae, dont les ecrits posterieur" ne seront que le developpement ou les applications particulieres, le jus inter gentes comme les autres. C'est ainsi qu'il expose d'abord les principes generaux du droit (Juris et judicii principia generalia) se rapportant a la communio in genere, aux rapports du droit dans leur ensemble; puis, dans ses differentes Descriptions, il traite de la communio entre personnes privees, de la communio entre les personnes privees et le gouvernement; ses autres ouvrages etaient consacres a certaines communiones speciales: religieuse, militaire, maritime, etc . ... 11 aborde finalement l'explication des rapports entre les peuples. Cette conception d'ensemble ne manque pas d'elevation, et denote en meme temps qu'une tendance a la philosophie du droit, une influence certaine du droit natureI." Ibid., pp. 274 f. "I believe that at the time when international law obtained a secure lodgement in Britain, that is to say in the sixteenth and seventeenth centuries, it owed that lodgement very largely to the mere fact that it was regarded as being apart of the civillaw, that is the universallaw of the civilized world, which in effect meant Western Europe." Sir A. McNair, "The Debt of International Law in Britain to the Civil Law and the Civilians," The Grotius Soeiety, Transaetions, XXXIX (1954), 189; cf. also p. 201. • Oeuvres, Tom. ii, p. 337, edit. 1773, 12. no. as referred to by J. Bentham, An Introduetion to the Prineiples 01 Morals and Legislation, 1823 ed., reprinted in "The Hafner Library of Classics," VI, L. J. Lafleur, Introduction (New York: Hafner Publishing Co., 1948), 326, n. 1. 3 Emer de Vattel, Le Droit des gens, ou prineipes de la loi naturelle, appliques a la eonduite et aux affaires des nations et des souverains, 4 bks. (1758 ed.), reprinted in "The Classics of International Law," No. 4, 3 vols., Vol. III. Translation by C. G. Fenwick (Washington, 1916). Note: Henceforward references to Vattel's Le Droit des gens will be made by quoting Vattel (sie) only, followed by appro• priate book, chapter, paragraph, and page data. If not otherwise mentioned, CLASSICS AND MODERN INTERNATIONAL LAW 31

The tenn "international law" as such was first coined by J eremiah Bentham, who used it in his work A n I ntroduction to the Principles oj Morals and Legislation, 1780. The 1823 edition of this work expressly mentions D' Auguessau's phrase and notes that Bentham's own term meanwhile took root in French terminology as welP It was introduced into French by Etienne Dumont in his Traite de legislation civile et penale (1802). Dumont defined the law of nations as "le droit qui regle transactions mutuelles entre les souverains et les nations" and added that it could be called exclusively "droit international" as this is a "mot analogue, facile a comprendre meilleur que la tenne de droit des gens qui est impropre et depourvu de significa• tion."2 Kant, too, pointed out the inadequacy and ambiguity of the term "jus gentium" and its translations "droit des gens" and "Völkerrecht." Under the term "gentes" Kant conceived only those peoples which were organized into states. Therefore he proposed that the term "jus gentium" be translated into German not as "Völkerrecht," but as "Staatenrecht" (jus publicum civita• tum).3 Thus by the time when the present widely-used term "internationallaw" came into use, the terms "nation" or "gens" were already generally understood to mean the personified state and had lost their other meanings. Hence the law qualified bythe adjective "international" could mean nothing else but a law regulating relations between the states alone to the exclusion of all other entities. When the legal positivists began a systematic analysis of internationallaw on the basis of the several "funda• mental principles," they were supplied by the previous literature with a name for this law, a name which suggested the references are to the translation contained in Vol. III of the Classics edition. For a further elaboration of Vattel's conception of international law see infra, chap. iii. 1 Bentham, op. eit., p. 327, n. 1. For our investigation it is important to note that Bentham limits internationallaw only to the "mutual transactions between sovereigns, as such," i. e., in their public capacity, whiJe he considers as subject to internal law of different countries relations between "individuals who are subjects of different states" or "where the sovereign ofthe one has any immediate transactions with a private member ofthe other." Ibid., pp. 326 f. 2 Quoted by Nys, Le Droit international, I, 57 f., where also further data on D' Auguesseau, Saint-Pierre, Bentham and Dumont are given. a E. Kant, Die Metaphysik der Sitten, I, par. 53, as referred to by Verdross, V ölkerreeht, p. 1. 32 CLASSICS AND MODERN INTERNATIONAL LAW main element of all those principles, the sovereign state as the sole subject of internationallaw.1 The term "international law" is actually considered by some authors who want to break away from positivism as an im• ponderable with a highly biased meaning and, therefore, an improper designation for the law it is supposed to denominate. Othere feel that a radical change, such as the enactment of human rights, would deprive internationallaw of its accepted meaning.2

Modern Reaction against Positivism in International Law

The monistic doctrine. - The positivist school, together with its dose predecessors and partly parallel trends,3 the historical and analytical schools of jurisprudence, achieved a great deal in the field of internationalIawas far as the collection of different legal materials into one systematic whole is concerned. Yet the theoretical basis of the positivist theory was found unsatisfac• tory and unsound. If it were true to its positivist postulate of expounding only the existing law, the "what is", it would have

1 Cf. De LaPradelle, op. eit., p. 141. Elihu Root and Lord Philimore in their deliberations for the Statute of the Permanent Court of International J ustice rejected the proposal that individuals be admitted as parties before the court with the observation that the term "international" disputes in the meaning of Article 14 of the Covenant of the League of Nations relates only to disputes between states. Permanent Court 0/ International justiee, Advisory Committee of Jurists, Proees- Verbaux 01 the Proeeedings 0/ the Committee, June 16th to July 24, 1920, with Annexes (The Hague: Van Langenhuijsen Bros., 1920), pp. 207 f.; cf. also Manner, "The Position of the Individual in International Law," p.486. 2 Cf. De LaPradelle, op. eit., p. 140, and literature there quoted. P. Fiore would like to use the term "droit du genre humain," Nys, Le Droit international, 1,60. Professor Jessup resorted to the term "modem law of nations" to denote his revision of the traditional meaning of the term. Jessup, op. eit., pp. 1 f., 5. "The idea of human rights and freedoms under international law is achalIenge to and a denial of practically an basic concepts upon which international law has during the last centuries been resting. It refutes the traditional doctrine on the contents of internationallaw as wen as the division of powers between the international community and its members to which that doctrine corresponded. It implies the rejection of the traditional notions on the structure and the subjects of international law. Last, but not least it is in fundamental opposition to the concept of sovereignty, the very core of modem international law. In short, the idea is the most radical manifestation of the tendency to develop the law of nations into world law." Hula, in Lipsky, ed., Law and Polities in the World Community, p. 188. a Roscoe Pound considers that the dissatisfaction with the historical and analytical type of jurisprudence was the main recruiting force for positivism. Pound, op. cit., p. 82. CLASSICS AND MODERN INTERNATIONAL LAW 33 to dec1are its basic principles too as apart of positive law. In this case it would remain without a criterion to determine what the existing positive law is, and in addition it would be impossible to prove the positive character of these principles. If, on the other hand, the basic principles are recognized as at least pre1egal hypotheses, its positive foundation would be lost.! The first alternative was abandoned as untenable by most positivists, as soon as its implications were realized. The second, therefore, offered the avenue of escape. However, to avoid, the charge of admitting metaphysics or natural law into their sys• tem, the positivists declared the issue of the binding character of the basic principles as non-juridical, hence outside the orbit of juridical discussion and investigation.2 This process culminated in the monistic pure theory of law.

1 "Anzilotti's effort to eradicate any influence ofnaturallaw from the doctrine of internationallaw, had gone too far. Anzilotti based the whole body ofthe law of nations upon the will of the states and conceived international order as a system of promises constituted exclusively through agreements based on the rule paeta sunt servanda. This rule itself rested upon the consent of the states which agreed to accept it as the basis of international relations. "This doctrine was obviously untenable. If one admits that the rule paeta sunt servanda binds the states because they consented to it by an agreement, the existence of a previous and superior norm which would bind the states to respect their agreement establishing the rule paeta sunt servanda should also be admitted. One would have to continue in this way ad infinitum. "The conclusion is inescapable that all international law cannot be conceived as a voluntary law based only upon promises of the states, particularly the rule paeta sunt servanda cannot be founded upon agreement." Sereni, op. eit., p. 244. Cf. also Visscher, Droit International Publie, pp. 71 ff., 88 ff., 126. 2 Cf. Sereni, op. eit., for an account of this development in the Italian school of positivism; also Nussbaum, op. eit., pp. 281 f., for a general survey of this development; Morgenthau, op. eit., pp. 268 f.; Briggs, op. eit., editorial note, p. 22. A most recent and competent attempt to explain the position ofthe individual in internationallaw from the standpoint of the dualistic positivist doctrine was made by Giuseppe Sperduti, L'individuo nel diritto internazionale (Milano: Dott. A. Giuffre, 1950). Sperduti distinguishes, in accordance with the general method of the Italian school, between purely scientific, normative, and informa• tive fundamental principles of international law, pp. 6 ff. Effectivity of a norm in the sense of Kelsen's doctrine is then taken as the fundamental informative principle and on this basis the attempt is made to prove the reality of the dualistic conception. On the whole Sperduti would maintain that individuals can be sub• jects of internationallaw, if a positive internationallaw norm created through the consensus of states permits this. Yet this is still very seldom occurring in today's internationallaw. Cf. the review of this work by J. L. Kunz in A. J., XLVI (October, 1952), 756. "Hall, the leading British positivist, who appears to limit the sources of international law to usage and treaties, actually bases internationallaw on the naturallaw foundation of postulates and assumptions. A Treatise on International Law, 3rd ed., 1890, Introduction, p. 7 [8th ed., by A. P. Higgins (Oxford: The Clarendon Press, 1924)]." H. Lauterpacht, "The Grotian Tradition in International Law," Britisk Yearbook 0/ International Law, XXIII (1946), 22. 34 CLASSICS AND MODERN INTERNATIONAL LAW

Professor ReIsen constructed such a "pure" legal system by admitting only those rules as valid rules of law that conforrn in a process of derivation or delegation to the basic norm or "Grund• norm." The hypothetical, non-positive character of the latter is frankly admitted.1 One of Relsen's objectives was to purify legal science from all non-legal elements and to eliminate several crypto-metaphysical concepts which had crept into it in the positivist exegesis or had been inherited from previous schools ofthought.2 Perhaps the main traditional conceptual residuum maintained by the positivist school was the concept of the personified state as the sole subject of international law. To ReIsen law is "essentially the regulation of human conduct." As such, its addressees are only human individuals, in the municipal as well as in the international sphere. The juristic personality of the state is admitted only as an "auxiliary concept of juristic thinking, an instrument of legal theory, the purpose of which is to simplify the description of legal phenomena." The true subjects of international law are, therefore, individuals though usually in a specific, collective way, different from the ordinary way in which individuals are subjects of national, or municipallaw.3 If all law derives its validity from the basic norm, and if it finally imposes duties and responsibilities or confers rights only upon human individuals, though in several specific ways, then of course the dualistic conception of law is impossible.4 ReIsen thus conceived a monistic system of alllaw, including municipal as well as internationallaw. The traditional doctrine of dualism, maintained by positivists, was thereby effectively undermined. At

1 "That a treaty is a law-creating fact. that by a treaty obligations and rights are established, or, in other terms, that a treaty has binding force. is due to a rule of customary international law which is usually expressed in the formula pacta sunt servanda . ... The binding force of customary international law rests in the last resort on a fundamental assumption: on the hypothesis that inter• national custom is a law-creating fact. This hypothesis may be called the basic norm. I t is not a norm of positive law; it is not created by acts of will of human beings; it is presupposed by the jurist interpreting legally the conduct of states." Hans Kelsen, Prineiples of International Law (New York: Rinehart and Co .• 1952). p. 314. 2 Cf. Morgenthau, op. eit., p. 263. • Kelsen, op. eit., pp. 97 f. • "L'individu est l'unite ultime non seulement d'obligations internationales, mais aussi de droits internationaux. En nulle autre matiere, l'ideal moniste ne s'exprime plus fortement que dans ce postulat que le but final de l'ordre inter- CLASSICS AND MODERN INTERNATIONAL LAW 35 the same time Kelsen's constmction gave impetus for the develop• ment of the doctrine of the primacy of international law over other legal systems.1 To Professor Guggenheim, just as to Kelsen, the basic norm is a presupposed concept. I t constitutes the first but not prov• able hypothesis of the juridical science from which positive mIes are derived. 2 The basic norm in this sense is a formal criterion providing for a unified legal system without any material content of its own. A certain degree of arbitrariness in this constmction is evident. The basic norm has to be formulated in such a way that it embraces the mIes of conventional as weil as of customary internationallaw. A preconceived notion of internationaliawand its content thus precedes the formulation of the basic norm which is supposed to unify it.3

Return to concepts 0/ naturallaw. - A further step along this de• velopment was made when the basic norm was given a material, objective content of its own instead of being conceived as a formal, colorless, hypothetical assumption. This material content could be found nowhere else than in the realm of ethics, the national doit etre la protection de l'etre humain individuel." H. Lauterpacht, "Regles generales du droit de la paix," Hague Recueil, LXII (1937),231; see also ibid., pp. 130,208 f. 1 For a general and systematic analysis see Walter Schiffer, Die Lehre vom Primat des Völkerrechts in der neueren Literatur, "Wiener Staats- und Rechts• wissenschaftliehe Studien," XXVII (Wien: Deuticke, 1937); cf. also Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts (Tübingen: J. C. B. Mohr, 1920); Die philosophischen Grundlagen der Naturrechtslehre und der Rechtspositivismus (Charlottenburg, 1928); General Theory 01 Law and State (Cambridge: Harvard University Press, 1945). Josef L. Kunz, "The 'Vienna School' and International Law," New York University Law Quarterly Review, XI (1934), 370ff. 2 "[Cette norme fondamentale] n'est pas creee dans une procedure legislative du droit des gens. Elle est presupposee et constitue l'hypothese premiere et indemontrable pour la science juridique d'ou derivent les regles positives. Elle n'est donc pas elle-meme une norme positive, mais elle est la source necessaire et obligatoire qui ramene a. l'unite les regles composant l'ordre juridique inter• national." Guggenheim, op. cit., I, 7. 3 "La norme fondamentale du droit des gens constitue le critere formel qui ramene a. l'unite toutes les regles du droit international public - mais seulement ces regles. La conception du droit international qui vient d'etre esquissee affirme la necessite de formuler la norme fondamentale de telle maniere que l'ordre juridique international contienne non seulement le droit conventionnel, mais aussi le droit coutumier. Le norme fondamentale du droit des gens est donc la regle de base sur laquelle se fonde le droit international coutumier universei, dont le droit international conventionnel est partie integrante. En effet, la regle 'paeta sunt servanda,' ... est une norme du droit international coutu• mier." Ibid., p. 9. 36 CLASSICS AND MODERN INTERNATIONAL LAW

original fountain of all nonns regulating human behavior.1 Thus the path of the development brought the doctrine back to where it started, to the natural law existing objectively above the subjective will of legislators, having as its source the rational and social nature of man, the original cause of an society, national and international. This original basis was lost when some writers on natural law in the seventeenth and eighteenth centuries replaced the concept of the nature of the individual man with the fictitious nature of the personified nation-state as the point of departure in their con• struction of international law.2 The positivists rejected the concept of "nature", either of the individual man or of the nation• state, as relevant for the determination of positive law. Never• theless, incongruously with this rejection, they accepted the fiction that states have a will and personality of their OWll. This personality was conceived as a convenient description for the bundle of rights and obligations which the states actually recog• nize as belonging to each other in their mutual intercourse.3 Most

1 While still employing Kelsen's technique to determine the subordinate norms of the legal system with the aid of the basic norm, Professors Lauterpacht and Verdross maintain that the basic norm itself is a norm of ethics or morals and not at all a hypothetical assumption. "Mais il est utile d'exprimer plus claire• ment, dans la norme fondamentale meme, a. la fois son caractere externe et imperatif et le fait de l'existence de la societe internationale. Pour cette raison, nous nous sommes risque ailleurs a. proposer la formule voluntas civitatis maxi• mae est servanda comme exprimant le mieux le postulat rationnel et ethique d'une communaute internationale d'interHs et de fonctions. Mais, comme nous l'avons dit, peu importe la formule donnee a. la supposition fondamentale, aussi longtemps que nous realisons la necessite scientifique et sociale de trouver au droit international une base autre que la volonte des Etats." H. Lauterpacht, "Regles generales du droit de la paix," Hague Recueil, LXII (1937), 151. "In the absence of the overriding authority of the judicial and legislative organs of the state there must assert its~lf - unless anarchy or stagnation are to ensue - the per• suasive but potent authority of reason and principle derived from the fact of the necessary coexistence of a plurality of states. This explains the pertinacity, in the international sphere, of the idea of natural law as a legal source." H. Lauterpacht, "The Grotian Tradition in International Law," p. 22. "Auch das positive Völkerrecht kann ohne diese naturrechtliche Grundlage nicht bestehen . ... [Z]ur inhaltlichen Bestimmung der völkerrechtlichen Grundnorm [müssen wir] von jenen Rechtsgrundsätzen ausgehen, ... welche die Kulturvölker über• einstimmend anerkennen, da sich die Normen des positiven Völkerrechts erst auf Grund des übereinstimmenden Rechtsbewusstseins der Völker heraus• gebildet haben." Verdross, Völkerrecht, pp. 30 f. • More on this development infra, chap. iü, pp. 168-71. • "International Personality is the term which characterizes fitly the position of the States within the Family of Nations, since aState acquires International Personality through its recognition as a member. What it really means can be ascertained by going back to the basis of the Law of Nations. Such basis is the CLASSICS AND,MODERN INTERNATIONAL LAW 37 of these rights and obligations were derived originally by the writers on naturallaw from the "nature" of the state. They were declared as the State's fundamental or inalienable rights and duties, in an analogy to the fundamental or inalienable rights and duties of the individual man. To the positivists, on the other hand, they were a body of rights and duties whose number and content depended on the consent of states and was as such sub• ject to change. Thus the will of states became the only final criterion of all international law. This voluntaristic conception denied any standing to the individual human being in inter• national law. Moreover, it precluded a true understanding of international society as weIl. This was replaced by the con• cept of a society of states or a "Family of Nations" where the law of nations was not "a law above but between sovereign States, and therefore a weaker law" than internal municipallaw.1 The positivists assumed as self-evident the rule that states are the only possible subjects of international law. To them, alilaw emanated from the will of states. Eut the recognition of the ra• tional and social nature of man as the ultimate foundation of all law destroys the self-evidence of these assumptions. During the last decades the fundamental inadequacies of the positivist doctrines necessitated fresh inquiries into the general structure of international law based on this new foundation. Though varied in details, these inquiries have in common the conviction that the real source of law, and particularly of international law, must be sought in the realm of morals and ethics, that is, in the conscience of the individual man and in his ability to dis• tinguish between right and evil. 2 common consent of the States that a body of legal mIes shall regulate their intercourse with one another. Now a legally regulated intercourse between Sovereign States is only possible under the condition that a certain liberty of action is granted to every State, and that, on the other hand, every State consents to a certain restriction of action in the interest of the liberty of action granted to every other State. ... All these qualities constitute as a body the International Personality of aState, and International Personality may there• fore be said to be the fact, given by the very membership of the family of Nations, that equality, dignity, independence, territorial and personal suprem• acy, and the responsibility of every State are recognized by every other State. The States are International Persons because they recognize these qualities in one another and recognize their responsibility for violations of these qualities." Oppenheim, op. cit., I, par. 113, 159 f. 1 Ibid., par. 20, p. 26. 2 "Le probleme de l'obligation en droit international rentre dans le probleme de l'obligation en general et celui-ci se ramene a son tour a un probleme moral. 38 CLASSICS AND MODERN INTERNATIONAL LAW

Of course no complete return to the teachings of the old schools of naturallaw can be expected, nor is this really to be desired. The manifold returns to the conceptions of the schools of natural law confirm the view that neither jurisprudence in general nor inter• national law in particular can achieve fruitful results without having asolid philosophy as its basis. This must be able not only to explain the existing phenomena, but also to suggest new ways to meet new demands. This is something that a science which deals exclusively with the recording and systematization of empirical facts, of "what is," and which precludes any creative speculation, cannot do. Many valid objections to the apriori specu• lative reasoning of the schools of natural law are possible. Many

La distinction des categories ethiques et juridiques, fondee en soi et, a beaucoup d'egards, necessaire, ne peut etre poussee au point d'isoler le droit des notions primaires de morale auxquelles se rattachent, comme a leur souche commune, toutes les disciplines normatives. Entre Etats comme au sein de l'Etat, le droit releve de la morale dans la mesure Oll l'idee du juste, qui forme son contenu specifique, est inseparable de l'idee du bien, qui est une idee morale.... Aucune societe n'a de fondement juridique sans la croyance chez les hommes en sa necessite. L'explication derniere de la societe comme du droit se trouve au-dela de la societe: elle se trouve dans les consciences individuelles.... C'est en revenant a l'homme, en ramenant la conception de l'Etat, organisation et moyen, a la personne qui est sa fin, que se decouvre, dans le plan d'un bien commun im• personnel sans doute, mais non point extra-personnel, l'unique justification morale et juridique du caractere obligatoire du droit international." De Visscher, Droit International Publie, pp. 126 ff. An express return to natural law is ad• vocated also by Louis LeFur, "La Theorie du Droit Naturel depuis le XVIIe siecle et la Doctrine Moderne," Hague Reeueil, XVIII (1927), 266 ff. A similar explicit or at least implied return to the concepts of naturallaw was effected also by other writers who are seeking to replace the outworn and inadequate positiv• ist conceptions with the aid of a new social philosophy; such as, e.g., Krabbe's principle of the "juridical conscience of man," H. Krabbe, "L'idee moderne de l'Etat," ibid., XIII (1926), 513 ff. and by the same author, Tke Modern Idea 0/ the State, G. H. Sabine and Walter J. Shepard trans. (New York: Appleton, 1927). Of great influence for the development of law was the theory of sociological positivism of Leon Duguit. Cf. his TraitB de droit eonstitutionnel (3d ed.; Paris, 1927), especially pp. 720 ff. Yet Duguit's idea of the "social solidarity" has in spite of all the professed positivism of its author "at its base, a theory of natural law." H. L. Laski, "M. Duguit's Conception ofthe State," Modern Tkeories 0/ Law (London: Oxford University Press, 1933), p. 66; cf. also Visscher, Droit Inter• national Publie, pp. 86 ff. "Ce n'est pas de la volonte du legislateur que la regle tire sa force obligatoire, meme lorsqu'elle prend la forme autoritaire. C'est de sa conformite a vec la source materielle et profonde du droit, de sa correspondance avec la necessite et l'interet public ou la finalite sociale .... Le legislateur procure a la loi l'eIement pouvoir, mais il est lie par l'element ethique. La non concor• dance de l'ethique et du pouvoir rend la force du Droit positif precaire et le Droit positif lui-meme antijuridique." G. Scelle, Droit international publie (Paris: Domat-Montchrestien, 1944), p. 15. Forthe exposition of a "functional" or "real• istic" approach to internationallaw which requires, nevertheless, the realm of ethics and mores as its foundation see Morgenthau, op. eit., pp 273 ff., 280 f. CLASSICS AND MODERN INTERNATIONAL LAW 39

critics, nevertheless, admit that in the field ofintemationallaw, only these early writers really succeeded in building up a complete system, which is still of great influence today, out of fragmen• tary and incongruent materials primarily by using asolid, though metaphysical, foundation of natural law which provided them with Ha plan, a design, a picture ofwhat the worker seeks to make."l The old theories ofnaturallaw, though manifold and sometimes contradictory in details, proceeded from a common basis, namely the fundamental premise that law must be in rational conformity with the nature of man.2 The paramount topic of today's inter-

1 "It is not hard to see why the nineteenth century achieved relatively so little in internationallaw. The jurists of the last century had no confidence in themselves qua jurists. They did not seek to be active agents in legal develop• ment. They expected legal development to operate itself from some internal momentum; to guide itself from some internal power. The jurist was to foIlow, arranging and ordering and systematizing, or observing and verifying and thus discovering the foreordained lines of growth. Creative work in law, as in any other field, requires a plan, a design, a picture ofwhat the worker seeks to make." Pound, op. eit., p. 88. Already Ihering considered "that 'the law ofNature' ofthe 'Aufklärung' period was only an idealization of existing conditions; but he also maintained that it is the idea of universality which gives the character and the key to the present phase of law. 'It was with a correct instinct for this trend and drift of modern law that the natural law school proclaimed its doc• trine of the universality of law elevated above time and place' (Geist des römi• schen Rechts [1852-1858], I, 15)." J. MacDoneIl, "Rudolph von Ihering," Great Jurists 0/ the World, p. 597. "Une methode positive est excellente, mais seule• ment lorsqu'elle dispose d'e16ments certains, ce qui n'est pas toujours le cas dans les questions anciennes, ce qui n'est jamais le cas lorsque quelques rapports nouveaux viennent a. se produire. Au-dela. de ces limites nos anciens auteurs faisaient tous appel au droit nature!. Que ferons-nous aujourd'hui? Peu de questions sont plus embarrassantes que celle-Ia.. 11 ne suffit pas d'avoir vivement ressenti l'inanite des conceptions anciennes. Un trou existe, il faut le combler." A. Pillet in his introduction to Les Fondateurs du droit international, p. xviii. Nussbaum admits, though in a somewhat humorous tone, this creative quality of the natural law schools. "The extreme vagueness, the venerability, and the assumed sanctity of naturallaw made that notion in later times a kind of magie hat from which learned dialecticians were able to pull astounding and indeed most valuable surprises. One of them was internationallaw." Nussbaum, op. eit., p. 22. Cf. also LeFur, op. eit., p. 298 and passim; Morgenthau, op. eit., p. 263, n.lO. 2 "The fundamental idea which underlies the variety and apparent diversity of the applications of naturallaw is doubtless that of conformity with the nature of man as a rational and social being. This principle, which is the justification of every form of positive law, is fully recognized in English law under the name of reason. The process of constructing a system of jurisprudence which ought to be in force everywhere, but was not necessarily so anywhere, was most fruit• ful when applied to a subject like internationallaw, which had no existing posi• tive law. Finding that large parts of the field of international relations were not covered by existing custom, Grotius and his successors, seeking a basis for a system of internationallaw, recurred to the law of nature as a law grounded in reason and valid for all mankind." Van Vechten Veeder, Introduction to The Great J urists 0/ the World, pp. xxx f. 40 CLASSICS AND MODERN INTERNATIONAL LAW national legal theory, namely the position of the individual in internationallaw, can achieve, even undera preliminaryapplication of the core of the dassical doctrine ofnaturallaw, solutions quite different and opposite from those of the positivistic doctrine of dualism and absolute sovereignty.l If the individual human being and his nature are taken as the starting point, then the rights and obligations of man under international law receive a foundation independent of the arbitrary will of states. The recognition of human rights by means of universal conventions between the states would then lose its precarious character of privileges granted by the "grace" of states.2 Such conventions and other instruments would then be, when enacted, merely declaratory of a fact which exists independently of them. The problem of the position of the individual in internationallaw thus is intrinsically connected with the naturallaw existing objective• Iy above the will of states and giving a foundation to positive internationallaw.3 The present day problems certainly cannot be solved simply by a mere application of the principles underlying the thought of the "fruitful" writers on international law of the seventeenth and eighteenth centuries. No mere reception of the old concepts can solve the problems without taking into consideration the radically changed conditions of the present world. Yet it may be admitted that those older writers were perhaps nearer to the truth and were able to get some lasting results primarily because their principles were better, sounder, and doser to the reality of their times than those maintained by the presently still influ• ential traditional positivist doctrine.4 The problem of coordination of the individual human being with the society in which he is living is the perennial problem of social engineering, the ultimate real task of alllaw. The writers on naturallaw started with the individual man as the basic criterion

1 "In the theories of the law of nature the starting point and the irreducible element has been the individual human being. The law of nations and, we may say, the law of nature, by denying, as they needs must do, the absolute sovereign• ty of states, give their imprimatur to the indestructible sovereignty of man." H. Lauterpacht, "The Law ofNations, the Law ofNature, and the Rights ofMan," The Grotius Soeiety, Transactions, XXIX (1944), 29. • Cf. supra, p. 15. a Cf. H. Lauterpacht, International Law and Human Rights, pp. 9, 70, 74. 4 Pound, op. eit., passim. CLASSICS AND MODERN INTERNATIONAL LAW 41 and proceeded from there toward the solution of all social problems. The positivist doctrine of dualism assumed the state and its will as the basic criterion. It thus substituted the "universal and permanantly fixed point" of the "individual as a given real being"l with a rather transitory, historically conditioned and fictitious phenomenon of the nation-state. It must be admitted that the latter had a weaker foundation than the former.

B. REASONS FOR THE PRESENT RE-EXAMINATION OF GROTIUS AND VATTEL

It is the object of this work to examine in detail the position accorded the individual in the legal systems of two representative publicists in the field of international law who proceeded from the basis ofnaturallaw. This investigation is undertaken in order to find some conclusions which may lead to a better understand• ing of the same problem in the present doctrine of international law. Before this examination is started, however, one must first be certain that somehing useful can be done by such an effort, and second, that the particular writers whose works are pro• posed for a detailed examination are suited for such a purpose more than any others.

Modern Doctrine and Schools 0/ Natural Law The fact that there are many references by present day publicists to the alleged advantages and superiorities of the doctrines of natural law does not yet permit a straightforward reception of any of these. In the first place, one must recognize that nothing like a uniform "school of naturallaw" existed, just as it was hard to speak of a uniform "positivist school."2 There were many trends that joined into the current of thought called by the

1 Hit seems clear that the contents of political and legal evolutions cannot be brought under the rule of universal abstract formulas: the relations between Law and State, between communities and their members vary greatly in the course of history and have to be estimated by different standards. The only two universal and permanently fixed points in this respect are the individual as a given real being and society as a necessary real relation. The problem which every age has to solve is to find the appropriate combinations between the two." Vinogradoff, ap. eit., p. 68. • Cf. supra, p. 18. 42 CLASSICS AND MODERN INTERNATIONAL LAW name "naturallaw." Therefore, a generic reference to it as a con• sistent school of thought misses the point. It is too vague to express anything meaningful. To speak ofthe individual human being as the "starting point and the irreducible element"! would be a platitude, if one does not specify precisely what the term "individual human being" implies. And on this concept there was a wide divergence among the philosophers of naturallaw. It is, therefore, better to refer to different schools that are usually classified as exponents of naturallaw than to a single systematic body of doctrine. The historie, analytical and positivistic schools of international law were not merely opponents but also successors to the schools of natural law.2 As such, they took over much more than they eradicated from the system of internationallaw which the writers on natural law succeeded in building up. It is im• portant, therefore, to know whether one eannot find already in some writings about naturallaw the roots of the "bad" eoneeptions whieh are attaeked today as the main tenets of the positivist doctrine, and for the eure of whieh the help of natural law is invoked. If this is so, why did the writers on natural lawadopt those notions? Were they mere1y aeeidental or did they origi• nate in some fundamental prineiples ofthe sehools ofnaturallaw? A eomprehensive answer to these questions ean throw some light on the present day problems of theories about international law. In partieular it can single out those prineiples of sehools of naturallaw whieh may really provide useful elements in a modern reeonstruction and point out those whieh to so me extent eaused the present state of the doetrine. Evidenee of different ideas and coneeptions held by different writers belonging to the sehools ofnaturallaw eannot be obtained without a thorough examination of their works in entirety. Cita• tions taken out of context often impart an impression quite opposite to that intended by the author.3 Only by a eomparison of different parts of a work can the true meaning of a coneept be established. It is through such internal evidenee that the real

1 Lauterpacht, "Law of Nations, Law of Nature, and the Rights of Man," op. cit., p. 29. • Cf. supra, pp. 21 ff. Also Schiffer, The Legal Community 0/ Mankind, p. 63. 3 Cf. supra, pp. 26 ff. for examples of such out-of-context application of passages of Vitoria and Zouche by later publicists. CLASSICS AND MODERN INTERNATIONAL LAW 43

importance of an idea allegedly held by a writer can be evaluated in his overall system of thought. It seems, therefore, that an examination of the old writers is valuable in order to derive the leading ideas bearing on our topic which were important not only to them, but can also exercise a beneficial influence on modem thought as well. 1 An additional observation must be made. The influence which the old writers exercised over their contemporaries was not due to a few lines in their treatises that are conventionally quoted today. They wrote their books in order to present a completed whole, a system. This usually comprised the fields of legal philosophy, political theory and jurisprudence in general in addition to intemationallaw. In an age when reading was more appreciated, it was the general spirit which a work was able to present that influenced the minds of other thinkers and the prac• tical readers of these works, not merely a few passages. To judge the importance of a work adequately for later develop• ment, it has to be examined as a whole as it was presented to the contemporary world of the author.2 Though the genesis of a treatise, the origin of different ideas, and the personal circumstances of the author are important, it is believed that the major real influence exercised on fur• ther development is due to the finished treatise. It is the published work alone which has the quality of transmitting ideas

1 Cf. Laski, op. cit., pp. 66 f. "On ne connalt pas I'histoire de notre science et 1'0n parait ne pas se soucier de la connaitre. Rien de plus injuste que cette in• difference. Nos anciens auteurs abondent en idees ingenieuses et instructives: ils ont maintes fois soumis a un scrupuleux examen les questions qui nous agitent et nous passionnent encore aujourd'hui; il n'est personne qui ne puisse tirer profit de leur commerce, personne qui ne devienne, grace a leur assistance, plus certain dans ses efforts vers la verite." A. Pillet in Introduction to Les Fondateurs du Droit International, p. vi. • .. [The] very circumstance that a substantial portion of the [Grotius'] treatise was devoted to matters which had little to do with what is generally regarded as belonging to international law proved a weighty contributory factor in the success it achieved. For De iure belli ac pacis is to a large extent a general treatise of law in its wider meaning '" and of jurisprudence. International law proper forms merely apart - though the most important part - of a wider sy• stem.... There is no doubt that, on balance, what many critics regarded as pretentious irrelevancy proved to be an invaluable asset. For there was presented to the world an exposition of international law woven into the structure of a general system of law and jurisprudence - a significant affirmation of the unity of all law and of the final place of international law in the general scheme of legal science. The effect was to enhance the authority of the treatise and of its main theme, namely, the law of nations." Lauterpacht, "The Grotian Tradition in International Law," op. cit., pp. 17 f. 44 CLASSICS AND MODERN INTERNATIONAL LAW to the succeeding generations long after the author and his special circumstances have passed away.l For these reasons the investigation here will be limited to such well-rounded treatises, provided that they embody com• prehensively the mature, crystallized thought of their authors.

Criteria 10r the Specific Choice 01 the Two A uthors While in general the necessity for a elose scrutiny of the im• portant works of writers belonging to the schools of naturallaw may be admitted without much hesitation, it is more difficult to justify the particular author whom one deerns as speciaUy impor• tant. Certainly some arbitrary judgment may partly infiuence any such selection. This is true even more if the selection is nar• rowed down to the examination of two writers only. It would seem, nevertheless, that at least the following criteria have to be satisfied to determine such a choice: first, the impor• tance of the writer in what we referred to as the schools of na• turallaw; second, the infiuence he exercised in contemporary and subsequent doctrine and practice of international law; third, whether or not active interest in the particular writer exists today. The aim of this work is to subject two important treatises to a eloser scrutiny, namely, Hugo Grotius' De iure belli ac pacis, and Emer de Vattel's Droit des Gens. The criteria set down must, therefore, be applied to these works in order to justify the undertaking.

The importance 01 the two authors in schools 01 naturallaw. - The most important of the above criteria is certainly the first one, at

1 What was said of a classic in economics applies with the same force to classics in internationallaw: "No first-rate mind whose ideas sum up an age and influence masses and movements to come is in any purist sense original. . .. Y ou can pick [his work] to pieces, and find that there is nothing in it that might not have been found somewhere in the literature before, and nothing that comes out ofit that has not to a great degree been punctured by the literature that followed. What counts is, of course, not whether particular doctrines were once shiny new, or have since stood the ravages of time. What counts is the work as a whole - its scope, conception and execution, the spirit that animates it and the place it has had in history." (Italics in original.) Max Lerner in Introduction to Adam Smith, An Inquiry into the Nature and Causes 0/ the Wealth 0/ Nations (The Modem Library ed.; New York: Random House, 1937), p. v. CLASSICS AND MODERN INTERNATIONAL LAW 45 least as far as the present tendency to turn to natural law for guiding principles is concerned. Yet it is just this criterion which can be least successfully applied to the two authors. The reason lies in the extreme lack of c1arity of the term "school of natu• ral law" and in the fact that the main exponents of these ideas were not so much writers on international law as philoso• phers, theologians and political theorists in general who devoted passing though sometimes very important considerations to the problems of international law.

Classic school 01 natural law and Grotius. - There are two distinct groups of writers and thinkers usually referred to as propounders of naturallaw: the earlier or c1assic and the modern or egalitarian, ra• tionalisticgroup.l Both groups have their roots in the beginnings

1 Leo Strauss, Natural Right and History (Chicago: The University of Chicago Press, 1953), p. 141 and passim. This division ofthe naturallaw schools of course does not encompass all who claimed to expound natural law theories in inter• national field. A special, recent conception of the law of nature was that held by James Lorimer (1818-1890), Scotch professor ofnaturallaw at the University of Edinburgh. Lorimer considered Aristotle as the best writer on politics. He was weil acquainted with the rationalistic natural law school. Yet he was thoroughly dissatisfied with most of the nineteenth century trends in juris• prudence, especially with the methods of the German historical school and with the Austinian doctrine. On the other hand he admired natural sciences. Of his studies in Berlin he wrote: "I learned more law from the chemist [Mitscherlich] than from the jurist [Puchta], and my own ultimate theory of scientific juris• prudence was more influenced by the former than by the latter." Quoted by Robert Flint in Biographical Notice to J. Lorimer, Studies National and Inter• national (Edinburgh: William Green and Sons, 1890), p. xii. In the particular exposition of naturallaw Lorimer employed a quite original, if unusual, approach, different from the two main approaches discussed here. Instead of deducing naturallaw from the social nature of man or from the natural instincts or desires of man, Lorimer thinks it should maintain a balance between the two and that that balance may continually change in the changing conditions of international relations. Thus he refers to "that fundamental doctrine of natural law which teaches that all rights and duties have their origin and are limited by the facts of naturallife." Institutes ofthe Law of Nations (Edinburgh: W. Blackwood and Sons, 1883-84), I, 4. Lorimer thus brings the concept of "natural law" closer to the concept of natural law in the physical sense than do other writers. Lori• mer's teachings were considered by the predominant English positivists of his time as eccentric and not belonging in the jurisprudence proper. See Sir Frederick Pollock's criticism quoted by A. H. Campbell, "James Lorimer: a Natural Lawyer of the Nineteenth Century," The Grotius Society, Transactions, XXXIX (1953),214 ff., with a good deal ofCampbell's own criticism added. Lorimer never enjoyed much influence. He was, however, quite progressive in some of his ideas and hence he is still today interesting. He delivered in 1870 a lecture on "The International Significance of Recent Events" where he outlined at the end a draft scheme in seventeen points for the constitution of a "permanent congress of nations or international parliament" and an international court of justice. He expressly mentions the partially developed ideas of Grotius and Kant on these 46 CLASSICS AND MODERN INTERNATIONAL LAW

ofWestern political thought. The principles ofthe first group were first extensively applied to international law by the Spanish theologians Vitoria and Suarez, who built entirely on the "Tho• mistic conception, and the Thomistic conception, in its turn, goes back to the Church Fathers, who, in their turn, were pupils ofthe Stoics, of the pupils of pupils of Socrates. "1 The fundamental principle of this group of thinkers about na• turallaw was that man is "naturally a social and political animal, destined more than all other animals to live in community. "2 The nature of man, as conceived by this group, is the potential ideal of wisdom and virtue which can be achieved in the right kind of sociallife. While potentially present in each human being, human nature is not realized in full except under the best possible con• ditions. While recognizing that men have in common with all substances the inclination for self-preservation, and in common with all animals the inclination for preservation of the species, there is specific to man's rational nature "a certain inclination to good ... and this inclination is proper to man alone. H3 Grotius adopted a similar distinction, after the Stoics and Cicero, be• tween the "first principles of nature - 'first according to nature' - ... and certain other principles which are later manifest but which are to have the preference over those first principles." Under "certain other principles" was understood the "con• formity of things with reason, which is superior to the body."4 Grotius thus recognized a hierarchy of values different from the seemingly natural ones: the sensual and instinctive perceptions

problems. Studies National and International, pp. 53-61. Cf. also A. P. Higgins, "La eontribution de quatre grands juristes britanniques au droit international (Lorimer, Westlake, Hall et Holland)," Hague Recueil, XL (1932), 1-22. 1 Straus, op. cit., p. 165. Cf. also W. Friedmann, Legal Theory (3rd ed. ; London: Stevens & Sons, 1953). pp. 21 ff. • Thomas Aquinas On Princely Government i. I, quoted from A. P. D'Entreves ed., Aquinas Selected Political Writings, trans. J. G. Dawson (Oxford: B. Blaek• weil, 1948), p. 3. Cf. Aristotle Politics i. 2; F. Suarez De Legibus ac Deo Legisla• tore ii. 19. 8, in Selections from Three W orks, "The Classies of International Law," No. 20 (2 vols.; Oxford, 1944). 3 Th. Aquinas Summa Theologica ii. 1. q. 94, art. 2, eone!., op. cit., p. 123. • Grotius, i. 2. 1. 51. Cont. ibid.: "Now this eonformity, in whieh moral good• ness beeomes the paramount object, ought to be aeeounted of higher import than the things to whieh alone instinet first direeted itself, beeause the first prineiples of nature eommend us to right reason, and right reason ought to be moredeartousthan those things through whose instrumentality we have been brought to it." Cf. infra, ehap. ii, p. 61. CLASSICS AND MODERN INTERNATIONAL LAW 47 are first only in temporal sequence of perceiving, not in their intrinsic value. The consciousness of good and evil, and the possibility to distinguish between just and unjust,l are then the fundamentals of the law of nature according to the classic school ofnaturallaw. These faculties are essential to rational human beings and there• fore of greater importance than the drive for self-preservation. The consciousness of right and wrong binds every man, and an other rights and obligations which men may have must be conformable to it. The nature of man, thus conceived, is the ultimate basis of an society. Apart from it, society has no mean• ing. International society, too, must be based on human nature and the end of man. 2 It may be asserted that Grotius was in fun agreement with this classic notion of natural law. Though he was no originator of this philosophy, he took over natural law as already applied to the international field by Vitoria, Suarez and others belon• ging to the Spanish theological school. 3 Grotius' distinct con• tribution was to build a complete legal system ordering in• ternational relations on the inherited fundamentals.4 He was not an innovator of the doctrine of natural law but tried to reestablish it in accordance with traditional concepts, particular• ly in those respects in which his contemporary world seemed to reject it altogether, with regard to the permissibility and justice ofwar.5

1 "[I] t is characteristic of man that he alone has any sense of good and evil, of just and unjust; and the association of living beings who have this sense makes a family and astate." Aristotle Polities i. 2, as quoted in Aristotle, On Man in the Universe, B. Jowett trans. ("Classics Club" ed.; New York: Walter J. Black, 1943), p. 252. 8 Cf. G. F. Benkert, The Thomistie Coneeption of an International Soeiety (Washington: Catholic University, 1942). pp. 48 f. 3 A. H. Chroust, "Hugo Grotius and the Natural Law Tradition," The New Seholastieism, XVII (April, 1943), 115, refutes the view made by Pufendorf that Grotius is linked to Hobbes and nominalistic tradition. According to J. B. Scott, The Spanish Origin of International Law, Vol. I, Franeiseo Vietoria and His Law of Nations (Washington : The School of Foreign Service, Georgetown Uni• versity, [1928]), p. 3, Grotius' treatise was "the culmination of the Spanish school." Cf. also W. Schiffer, The Legal Community of Mankind, p. 30. • Cf. Kosters, "Les Fondements du droit des gens," chap. ii, especially pp. 45 ff. 6 "Il [Grotius] aurait ... l'initiateur des deux grands mouvements qui caracte• risent cette seconde phase: la creation d'un droit naturel distinct de la religion et l'apparition du droit international. ... Les deux grands merites qu'on lui attribue en effet ... lui so nt reconnus a tort .... Au fond, le plus grand merite 48 CLASSICS AND MODERN INTERNATIONAL LAW

Grotius' views on the law of nature were crystallized in his mature work De iure belli ac pacis, first published in 1625. Ear• lier he wrote the treatise De iure praede commentarius,l which he never published and which was unknown until the accidental dis• covery of the manuscript in the last century.2 Both treatises are de Grotius, c'est plutöt, a l'inverse, d'avoir tente un retour a la theorie tradition• neUe sur des points Oll on commen~ait deja a l'abandonner, la notion de guerre juste notamment et ses consequences. Sa tentative, d'ailleurs, resta longtemps sans succes et ne devait guere etre comprise et appreciee que beaucoup plus tard, au cours de la phase actuelle." Louis LeFur, op. eit., pp. 297 f. 1 Hugo Grotius De iure praedae eommentarius [1604-5?], G. L. Williams and W. H. Zeydel trans., G. A. Finch, Preface, "The Classics of International Law," No. 22, Vol. I (Oxford: Oxford University Press, 1949). • The manuscript was discovered in 1864. Only chapter twelve appeared separately in 1609 under the title l11are Liberum. Cf. Finch, Preface to De iure praede, p. x f., and J. B. Scott's Introduction to De iure belli ae paeis, pp. xxvi ff. ActuaUy both treatises are intimately related; the mature one is but an out• growth of the earlier which was an extended legal opinion on an important prize case prepared between 1604-5 probablyon request of the Dutch East India Company. There are differences between the two treatises particularly in the fundamental legal ideology. The mature work, according to some, allegedly is showing "the growing force of the trend away from the theological and dialectic concept of law, toward secularism and modern positivism." Finch, Preface, p. xxi. It seems, though, that this characterization is implying too much. In spite of greater emphasis on the customary ius gentium the later treatise is rather more in the c1assic naturallaw tradition than the earlier. The secularistic tend• ency of Grotius is allegedly seen in the paragraph 11 of the Prolegomena to De iure belli ac paeis where, after an outline of natural law as based on the ra• tional and social nature of man, he states: "What we have been saying would have a degree of validity even if we should concede that which cannot be con• ceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Hirn." The other view seems to be more correct. Gratius is reaffirming here his adherence to the Thomist transcendental realism conceiving natural law as based ultimately on the "perseitas boni et iusti" in opposition to the voluntaristic tendency of the Scotist conception which main• tained that the good, hence also naturallaw, exists only by virtue of the Divine command, rooted in the Divine will. This latter conception influenced the trends of nominalism and voluntaristic positivism in centuries after Grotius. Grotius followed in phrasing the "secularising" passage quoted above very c10sely to similar passages written by Spanish jurists-theologians, particularly by Gregory of Valencia, Arriaga, and Suarez, who all reasserted Thomist position against Scotus. A. H. Chraust, "Hugo Grotius and the Natural Law Tradition," The New Seholasticism, XVII (1943), 114 ff. where an extensive analysis ofthis view is given supported wifu full bibliographical evidence, tracing Grotius' standpoint also in his other theological works, especially in De imperio summarum potestatum circa sacra. Francisco Suarez' work Tractatus de legibus ac Deo Legislatore ap• peared only in 1612, after Grotius wrote his first treatise. Gratius expressly refers to Suarez in several places in his second treatise; see Index of Authors Cited, p. 925. Though perhaps not always acknowledged, the influence of Suarez on Grotius' second treatise is unmistakable. The differences between Gratius' first and second treatise can be better explained in fue sense that the mature work is c10ser than the earlier one to the traditional scholastic concep• tion, and not the opposite. According to the earlier work the primary natural law is expressed in fue Rule I: "What God has shown to be His Will, that is law." De iure praede 2. 8. In the mature work the distinction between primary and CLASSICS AND MODERN INTERNATIONAL LAW 49 built on "the fundamental Grotian concepts which are coming into fashion once more: emphasis upon justice and morality as the bases of positive law; attribution of international rights and duties to individuals considered apart from their states; and the realization that man must show forbearance to man 'because we are born for a life of fellowship'l in a family of nationS."2 The mature work alone was published by Grotius in the field of international law. It was, therefore, the conception of the law of nature exposed therein that exercised the great infiuence on subse quent periods. This conception distinguishes Grotius as an important representative of the classical law of nature. As such, Grotius conforms fairly well to the first criterion of selection.

Egalitarian or rationalistic school 0/ naturallaw. - The other group of thinkers in the field of naturallaw has its beginnings in antiquity, too, though perhaps not exactly in the field of political philo• sophy and law, wich was formulated only in tlie modern age. Its roots are in the Pythagorean and Epicurean philosophy. Natural law, according to this group, is based on the sensual aptitudes common to all men, in a certain sense to all living beings as weIl. secondary law of nature, and a similar distinction between the primary and secondarylawofnations,isomitted. Thelawofnature emanates from the objective reality of human nature, law of nations is positive, customary law. In addition to the passage from the Prolegomena quoted above the following ones are sig• nificant for Grotius' conception as exposed in the De iure belli ac pacis: "The law of nature is a dictate of right reason, which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God .... The law of nature, again, is unchangeable - even in the sense that it cannot be changed by God." Grotius i. 1. 10. 38 ff. [italics added]. The greater emphasis on will as the ultimate cause of law is evident in the first, earlier treatise, while in the second the objective reality of human nature is stressed. For Grotius' respect of Scholastic school in general ("Schoolmen") cf. ibid. Prolegomena par. 52, p. 27. The true tendencies toward modern positivism in Grotius' treatise are not to be sought in his fundamental principles, but rather in certain parts later in the work, particularly in his distinction between the just war and legal public war, and the accompanying distinction between the law of nations in accordance with the law of nature, on the one hand, and the law of nations contrary to the law of nature, on the other. Cf. infra, chap. ii, pp. 96 ff. Cf. also H. A. Rommen, The Natural Law (St. Louis: B. Herder Book Co., 1947), pp. 57 ff.; and the excellent analysis of Grotius by Basdevant, "Hugo Grotius," Les Fondateurs du droit international, pp. 150 ff.; also Robert Fruin, "An Unpublished Work of Hugo Grotius," Bibliotheca Visseriana, V (1925). 1 Grotius De iure praede, p. 13. • Ibid. Finch, Preface, p. xxiv. 50 CLASSICS AND MODERN INTERNATIONAL LAW

Some believe that Ulpian's definition of naturallaw1 is based on this conception of human nature. Ulpian's definition found its way into J ustinian' s Institutes. 2 Because of this authorita ti ve listing it exercised considerable influence on later philosophy and juris• prudence.3 The true basis of the egalitarian conception of natural law, however, is the skepticism which always shadowed the classic doc• trine of natural law: that perhaps the moral principles of good and evil could not really be conceived with absolute certainty by our reason, or that wisdom and justice thus conceived could never be realized in life at all.4 It is with Hobbes that the modem school of naturallaw, born from these skeptical considerations, really came into being. According to Hobbes, only the clearly observable things can be ascertained as such. And knowledge can be obtained, ifthese observable things, "lines, and figures," are compared in order to determine their causal relationship.

1 Cf. Kosters, op. cit., p. 7. 2 "Ius naturale est, quod natura omnia animalia docuit, nam ius istud non humani generis proprium est, sed omnium animalium, quae in caelo, quae in terra, quae in mari nascuntur, hinc descendit maris atque feminae coniugatio, quam nos matrimonium appelamus, hinc liberorum procreatio et educatio: videmus etenim cetera quoque animalia istius iuris peritia censeri." Institutiones i. 2. pr. 3 Yet it would perhaps be amistake if one were to think that Ulpian really meant with his definition that animals would share together with men in some normative laws. "Savigny himself - adopting in its essentials the defence of Ulpian by Donellus - points out the true significance and value of Ulpian's theory. He reminds us of the important consideration that in every relation we must distinguish the matter and the form, and that the matter of a legal relation can be conceived of apart from its form. In the great majority of legal relations, such as ownership or obligation, the matter is arbitrary in the sense that the human race could conceivably continue to exist without it. But what differentiates the relations mentioned by Ulpian - 'maris atque feminae coniunc• tio, liberorum procreatio, educatio' - is just the fact that their matter is not arbitrary, consisting as it does, of natural relations, common to human beings and animals, without which the human race could not continue to exist. Ul• pian's reference to 'ius' ('videmus censeri') is somewhat fanciful and bizarre, but it is ridiculous to suppose that he really imagined legal relations to subsist as between animals. All he wished to point out was that that which constitutes the matter (as distinct from the form) of certain fundamental legal relations between men has its almost exact counterpart in the anima! world. Nor is this a mere 'foolish conceit' or 'inept speculation' (Austin's Jurisprudence, 5th ed., pp. 209 f., 552). Ulpian's view, understood in the sense indicated is, as Savigny says (System des heutigen römischen Rechts, I, Beilage I), 'not only true, but important and deserving of consideration,' and, though useless as a basis of legal c1assification, its infiuence on legal thought in other directions - not only in Ulpian's time, but also centuries afterwards - was considerable." J. C. Ledlie, "Ulpian," Great Jurists 0/ the World, p. 42. • Strauss, op. cit., p. 171. CLASSICS AND MODERN INTERNATIONAL LAW 51

Such knowledge of causal relationships is indisputable, it cannot be subject to skepticism.1 To establish causal relationships is to know the consequences conditioned by the accident of a certain observable phenomenon. In the same sense, the phenomenon itself can be seen as an effect of a previous cause. While the knowledge of a fact is absolute, the knowledge of the consequence of one fact or affirmation upon an• other is only conditional. It is conditioned by the accident of the cause. The latter type of knowledge is also called science, and systematic scientific thinking is what makes up philosophy.2 With this strict method of science, instead of with speculation a• bout the ideal of wisdom and justice, the modern or egalitarian school of natural law in the seventeenth century, based pri• marilyon Hobbes, tried to determine the content of this law. An equivalent to the "lines, and figures" used by mathematical sciences had to be found in the social sphere in order to construe a truly scientific social philosophy. These "lines, and figures" of human behavior would have to be so evident that their existence could not be disputed. They would not be mere potentially achievable postulates, but realities present to an equal degree in every man. Hobbes considered these to be the basic drives and instincts that set men in commotion, the "first according to nature" as called by the classic school before him.3 The most powerful ofthese fundamental urgesis the passion for self-preserva• tion, that is, the fearofviolentdeath. This passion became the new basis ofthe law ofnature. Hobbes conceived the human being as a purely selfish, in• dividualistic entity with no apriori social connections or dis• positions. In this he was diametrically opposed to the classic doctrine which regarded man as a social animal by nature. Ho bbes would admit social relations only on the basis of reason, i. e., the reason dictates to the isolated individual in the state of

1 "The doctrine of right and wrong, is perpetually disputed, both by the pen and the sword: whereas the doctrine of lines, and figures, is not so; because men care not, in that subject, what be the truth, as a thing that crosses no man's ambition, profit or lust." Thomas Hobbes, Leviathan or the Matter, Forme and Power 01 a Commonwealth Ecclesiasticall and Civil (London: Andrew Crooke, 1651) reprinted in M. Oakeshott ed. and introd., "Blackwell's Political Texts" (Oxford: Basil Blackwell, n. d.), chap. xi, pp. 67 f. 2 Ibid., chaps, vii, p. 40; ix, p. 53 f. 3 Cf. supra, p. 46. 52 CLASSICS AND MODERN INTERNATIONAL LAW

nature that it is better for his own good, that is, ultimately for his own preservation, to have some regulated peaceful social relations with other men. Life in the state of nature is governed by passions only, in which all men are equal because all have an equalright to every• thing. A society can be formed only if men make use of their fa• culty of reason. The passion of fear of violent death compels men to seek peace instead of persisting in astate of war where life is insecure. But the way to achieve this peace will be shown only through reasoning, whereby the potential consequences of actions can be known in advance. "All men [according to Hobbes] by nature reason alike, and weIl, when they have good principles."l Equal reasoning power is thus another characteristic mark of equality. N aturallaws are only general rules found out by reason which forbid actions whose consequences might bring about just that which each man would really like to avoid.2 Self• preservation is the highest goal of human instincts. The na• turallaws, rationally created, will, therefore, show to men the way to achieve this goal. These laws will show that peace and safety can be found in a civil society where all members mutually agreed to desist from the exercise of their unbound natural rights and to obey the commands of a sovereign. Thus instead of the state of nature, a civil society is created where the positive laws emanate from a civil authority. In the sodal contract all citizens equally consent to surrender their natural rights in exchange for benefits of civil society. This consent is a third mark of equality or egalitarianism. The laws of nature are not objective norms of right and wrong immanent in the social nature of man, but rules arrived at by deliberate reasoning - hence, a rationalistic natural law. Hobbes's thought had a far-reaching influence on many sub• sequent publicists, and especially on writers on international law though it was notfollowedslavishlyby any of them. Generally the school of"naturalists," like Samuel Pufendorf, Christian Thomasius and J ean Barbeyrac, is associated closely with Hobbesian rationali• stic naturallaw, though eachofthemhadsignificantideasofhisown at variance with Hobbes in fundamental points. They are called

1 Hobbes, op. eit., chap. v, p. 28. I Ibid., chap. xiv, p. 84. CLASSICS AND MODERN INTERNATIONAL LAW 53

"naturalists" because in principle, like Hobbes, they equate the law of nations with the law of nature, since they maintain that between nations there still persists the original state of nature. Hence they more or less deny the existence of aseparate law of nations, which could emanate from a positive source, as civillaws do within the states.1 Yet the "naturalists" by no means represent the only ad• herents of the egalitarian or rationalistic natural law in the field of international law. Traditionally certain writers, particu• lady Christian Wolff and Emer de Vatte1, are classified as be• longing to the "Grotian" school of international law. Then also a third, "positive" group is distinguished. 2 These classifications are more or less formalistic. The writers who equate the law of nations with the law ofnature are called "naturalists." Those who seek rules of the law of nations primarily in the existing positive customs and conventions are called "positivists." Those who combine both methods allegedly follow Grotius, who main• tained that the positive law of nations supplements the funda• mental regulations established among all men and nations by the law ofnature. What this classification obscures is the fact that the law of nature as conceived by Grotius is something entirely different from the law of nature conceived by the writers of the "Grotian" school. This is true especially of Wolff and Vattel. Also the fact that the majority of the "positivists" operated on the fundamental premise of some sort of a law of nature is easily ovedooked.3 The law of nature, as exposed by Wolff and Vatte1, follows Hobbes, in the main, not Grotius or any other classic writer on natural law. It is Hobbes's idea of individualistic self• preservation and not the classic notion of rational and social human nature that prevails in Wolff's and Vattel's writing. To some extent Leibnitz' philosophy \vas influential, too. 4 Thus to

1 Cf. supra, pp. 22 ff. 2 Cf. Fenwick, International Law, pp. 54 ff. 3 Cf. supra, pp. 20 f. • Under Leibnitz' influence Vattel even wrote a treatise Defense du systeme leibnitzien, published in 1741, fashionable then, yet soon forgotten. LaPradelle, Introduction to Classic's edition of Vattel, p. iv. For an account of Leibnitz' overall irnportance and his specific influence on Vattel's teacher Wolff see R. W. Meyer, Leibnitz and the Seventeenth-Century Revolution, trans. J. P. Stern (Chicago: Henry Regnery Cornpany, 1952), especially pp. 76, 101, and passim. 54 CLASSICS AND MODERN INTERNATIONAL LAW the ultimate goal of self-preservation the demand for self-perfec• tion was added, as weIl as the imperfect obligation to help others in their self-preservation and self-perfection. Yet on a closer scrutiny it will be seen that the individualistic goal of self• preservation retains the highest place. This is only accentuated by the concept of astate of nature among the more or less self• sufficient civil societies which replace the fragile individual in international relations.1 In spite of the formal classifications it may be maintained that Vattel belonged to the modern rationalistic school naturalof law. The question is what was his importance in this group? He is not an original thinker. He freely admits his debt to others, in particular to Hobbes and Pufendorf, partly to Grotius, and above all to W olff, whose teachings he wanted to popularize. 2 In his treatise, furthermore, the influence of the contemporary po• litical theory of the Enlightenment, particularly of Locke and Montesquieu, is unmistakeable. This eclectic ability of Vattel is important especially when considered together with the influ• ence that his treatise was able to achieve and maintain for a considerable time. Thus, while not the most original, and in de• tail very ambiguous, Vattel was perhaps the most influential representative of the modern rationalistic or egalitarian school of naturallawin the field of internationallaw.3 For these reasons it would seem that the choice of his treatise for a closer examination is justified as far as the first criterion is concerned.

Injluence o]Grotius and Vattel on the development 0] international law and on international practice. - It is easier to justify the re• examination of the two authors by the second criterion, namely the influence each of them enjoyed in contemporary and subsequent international doctrine and practice. An outward sign of this influence can be seen in the great number of editions through which both of the works here examined went over the centuries since they were written.4 This quantitative evidence

1 Infra, chap, iii, passim. • Cf. Vattel, Preface. • Cf. LaPradelle, Introduction to Vattel, pp. xiii ff. • In the Classics of International Law editions the bibliography of past editions lists 77 editions of Grotius' treatise, including the Classics, Grotius, Vol. II, pp. 877 ff.; and 50 editions of Vattel's treatise, Classics excluded, Vattel, CLASSICS AND MODERN INTERNATIONAL LAW 55 suggests that these two works were widely used and must have left permanent traces on the body of international law handed down to our day. Grotius was often acclaimed as the father of internationallaw, sometimes to the extent that the contributions of writers before him were almost neglected.1 Nevertheless, Grotius' claim to be the first who successfully presented in a "comprehensive and systematic manner" the "body of law concerned with mutual relations among states or rulers of states" cannot be denied.2 Un• fortunately, not all of the detailed rules which he proposed in fields which had not been covered before his time by satisfactory po• sitive regulations, were adopted in subsequent practice. The main tenet of his doctrine, his attempt to distinguish between just and unjustwar, wasnevertakenover.3 Yetitistrue, too, that Grotius' doctrine was evaluated, quoted and commented upon by almost every writer in international law until today. Even if his ideas were not accepted, they nevertheless formed a standing body of reference which influenced the growth of international law at least indirectly. Furthermore, his attempt to combine the legal principles derived in theoretical reasoning from the fun• damen tals of the law of nature with the practical rules created by the positive, customary practice, showed the way for all future commentators on internationallaw.4 Vattel, too, in his own way influenced the doctrine and practice of international law. Since he was professedly a popularizer of Christian Wolff's ideas and was not really an original thinker, his renown among the theoreticians of internationallaw was never

Vol. 1. pp. lvi ff. Cf. also Jacob Ter Meulen and P. J. J. Diermanse, Bibliogra• phie des ecrits imprimes de Hugo Grotius (The Hague: Martinus Nijhoff, 1950). 1 Cf. C. Van Vollenhoven, Three Stages in the Evolution of the Law of Nations (The Hague: Martinus Nijhoff, 1919), pp. 16 ff. 2 Grotius Prolegomena pars. 30, 1, respectively. "Grotius apparait comme fai• sant epoque a un double point de vue. D'abord il resurne comme en un faisceau doctrinal les solutions presentees par ses precurseurs. D'autre part, il est le point de depart du developpement ulterieur de la science." Basdevant, "Hugo Grotius," Les Fondateurs du droit international, p. 267. 3 Cf. Brierly, op. eit., p. 33 f.; infra, chap. ii, pp. 119 f. • For a detailed analysis of Grotius' infiuence see particularly: Lauterpacht, "The Grotian Tradition in International Law," op. cit.; J. B. Scott, Introduction to Classics edition of Grotius; W. S. M. Knight, The Life and Work of Hugo Grotius (London: Sweet & Maxwell, 1925); Nussbaum, op. eit., pp. 104 ff.; Basdevant, op. eit.; Kaltenborn, Kritik des Völkerrechts ... , pp. 45 ff., and Die Vorläufer des Hugo Grotius ... , Pt. I, pp. 51 f. 56 CLASSICS AND MODERN INTERNATIONAL LAW very high, especially in continental Europe.1 Vattel succeeded, nevertheless, not only in popularizing Wolff's ideas but also in synthesizing most of the contemporarydoctrine ofinternationallaw in his work. Vattel's system ofinternationallawreceived through this synthesis a very "modem" form, primarily because it fitted actual contemporary practiees so weIl, which it sought to justify in high moral terms. His doctrine of sovereign equality and the independence of all sovereign nation-states has deeply influenced thought untiI present times. 2 For Vattel's influence on diplomatie and judicial practice there is ample evidence in the preserved documents and judicial decisions. While his system may show many ambiguities and faults, his common-sense presentation in an easily readable French language seeured him a long-Iasting audience among statesmen and practitioners who found it loathsome to consult difficult Latin passages of otherwriters. In spite of their weakness, Vattel's conclusions had appreciable effect.3

1 Cf. LaPradelle, Introduction to Vattel, pp. xxxvii, xli. W. Schiffer, The Legal Community of Mankind, devoted 15 pages (pp. 63-78) to Wolff's conception of a world community, while Vattel is dispensed with in a few scattered references and notes - pp. 117,319, n. 141,325, n. 3 - in spite ofthe infiuence which Vattel's concept of a "society of states" had on later developments. Cf. infra chap. iii, pp. 190 ff. 2 Verdross considers that the "classical internationallaw" which dominated the international scene until the First World War found its final and perfect expression in Vattel's treatise; Verdross, Völkerrecht, p. 36. As an extraordinary "proof" of modernity it is interesting to find Vattel's treatise as first entry on a list of principal contemporary (1953!) treatises and manuals of international law in Guggenheim's TraUe de Droit international public, I, ix. No other seven• teenth or eighteenth century writer is even mentioned in this bibliography, presumably because they are outdated, while Vattel does not seem so. Or is this merely a compliment to an illustrious fellow-countryman? • "Of all the authors, even the English who have written upon the Law of Nations, not one is more often nor more copiously quoted that Vattel." La• Pradelle, Introduction to Vattel, p. xxxiv. Cf. also C. G. Fenwick, "The Authority of Vattel," American Political Science Review, VII (1913), 395 ff., and VIII (1914), 375 ff. "The following statistics, prepared by Professor Edwin D. Dickinson [''Changing Concepts and the Doctrine of Incorporation," A.]., XXVI (1932), 259, n. 132], on the basis of American cases decided from 1789 to 1820, speak for themselves.

Citations Quotations Citations in Pleadings By the Court

Grotius 16 11 2 Pufendorf 9 4 8 Bynkershoek 25 16 2 Vattel 92 38 22" CLASSICS AND MODERN INTERNATIONAL LAW 57

Importance ofGrotius and Vattel today. - The third criterion for the justification of this re-examination is to be sought in the present interest in the particular writers. Grotius and Vattel were neither the only nor the most important or explicit representatives of the different schools of naturallaw. While their influence on the de• velopment of the doctrine and practice of internationallaw was great, they certainly were not the only influential writers of these schools in this field. The third criterion for the justification of the re-examination tries to establish whether presently feIt needs of theory about internationallaw warrant an examination of these writers more than other past authorities. This should be true in particular insofar as Grotius' and Vattel's teachings relate to the discussion on the position of the individual in international law. The many utterances of a need to return to the natural law, mentioned above, actually imply areturn to the classical con• ception of natural law. Only this school really conceived the individual human being as the uItimate basis of international law. Since Grotius is the most important representative of this school in the field of international law, an examination of his work could give valuable resuIts.l However, much of the blame for the present inadequacies of doctrines of internationallaw is credited to the rationalistic school of naturallawand in particular to Vattel as its most successful po• pularizer.2 Those criticisms relate to his overall conception of inter• nationallawas weIl as to particular rules which he formulated or helped to propagate. Many of the ambiguities which he eloquently stated still persist today in the form of weIl established and l'

1 Brierly thinks that Vattel originated and developed the misleading principle of equality of states, op. eit., pp. 38, 116 f. Cf. Briggs, op. eit., pp. 536, 618. Cowles argues that Vattel brought up the theory that the law of nations pertains to sovereign states only without any support to corroborate it, "The Impact of International Law on the Individual," Proeeedings 0/ the A. S. I. L., XLVI (1952),74. "The practical conclusions which he [Vattel] reached and the liberal and humanitarian spirit of his discussions won for him a wide hearing. Few, however, of the statesmen and jurists who quoted his authority in later years concerned themselves with his mistaken premises or foresaw the dangerous consequences of his enthronement of sovereignty and independence of states. " Fenwick, International Law, p. 56, cf. also pp. 129, n. 118, 213 f., 612. ]essup calls for an abandonment of the "old Vattelian fiction of the injury to the state through the injury to its national," at least in the ordinary claims cases, op. eit., pp. 9, 116. Vollenhoven charges Vattel with treachery on Grotius for his introduc• tion of the extreme concept of sovereignty, op. eit.