Abstract
Preliminary distinctions. — The title of Emer de Vattel’s great treatise, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns1 is more or less a definition of international law, as conceived by the author. The law of nations (droit des gens) is merely an application of the law of nature to the exclusion of any volitional human regulation, as long as possible. To limit the law of nations to rules established by the mutual consent of nations would mean, according to Vattel, to restrict
within very narrow limits a law of wide extent and of great importance to the human race, and at the same time [this would degrade] its position by misconceiving its true origin. There is no doubt of the existence of a natural Law of Nations, inasmuch as the Law of Nature is no less binding upon States, where men are united in a political society, than it is upon the individuals themselves. Now an exact knowledge of this law can not be had by a mere understanding of what the Law of Nature prescribes for individual persons. When a law is applied to different subjects it must be applied in a manner suited to the nature of each subject. Hence it follows that the natural Law of Nations is a special science which consists in a just and reasonable application of the Law of Nature to the affairs and the conduct of Nations and of sovereigns. All those treatises, therefore, which confuse the Law of Nations with the ordinary natural law must fail to convey a distinct idea and a thorough knowledge of the sacred Law of Nations.2
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
The original French title reads: Le Droit des gens, ou principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains
Vattel follows in this construction the examples of his predecessors, particularly that of Christian Wolff, whose influence he freely admits. Cf. ibid pp. 6a f.
“He [Hobbes] divides the natural law into the ‘natural law of man’ and the ‘natural law of states.’ The latter, in his view, is what is ordinarily called the ’Law of Nations.”’ Vattel Preface p. 5a.
If the rights of a Nation are derived from its obligations (par. 3), they are chiefly derived from those which the Nation owes to itself. We shall likewise see that its duties towards others mainly depend upon, and should be regulated and measured by, its duties toward itself. Hence in treating of the obligations and rights of Nations we shall begin, for the sake of order, by setting forth what each Nation owes to itself.
Thus to Grotius the essence of justice and hence of the law of nature lies in “abstaining from that which is another’s, the restoration to another anything of his which we may have,… the obligation to fulfil promises, the making good of a loss incurred through our fault, and the inflicting of penalties upon men according to their deserts.” Ibid Prolegomena par. 8, p. 12.
Wright, Contemporary International Law, a Balance Sheet, p. 2, also pp. 7 f.
“The idea of duty can only be attributed to the living; and a moral being can have obligations towards itself only in view to its perfection and its happiness. To preserve and perfect one’s existence is the sum of all duties to self.” Vattel i. 2. 14. 13. “But as its duties towards itself clearly prevail over its duties towards others, a Nation owes to itself, as a prime consideration, whatever it can do for its own happiness and advancement. (I say whatever it can do, not meaning physically only, but morally also, what it can do lawfully, justly, and honestly.)” Ibid Introduction par. 14, p. 6. For a good analysis of Vattel’s conception of rights and obligations see A. Mallarmé, “Emer de Vattel,” Les Fondateurs du droit international, p. 494.
For an analysis of Wolff’s conception of rights and obligations see Kalten-born, Die Vorläufer des Hugo Grotius…, p. 58; Louis Olive, “Christian F. de Wolff,” Les Fondateurs du droit international, p. 453.
Vattel and Wolff were in this perhaps more akin to Locke than to Hobbes. Locke maintained: “Everyone as he is bound to preserve himself, and not to quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he as much as he can to preserve the rest of mankind, and not unless it be to do justice on an offender, take away or impair the life, the liberty, health limb or goods of another.” John Locke, The Second Treatise on Civil Government (“Classics Club” ed.; New York: Walter J. Black, 1947), chap. ii, sec. 6, p. 78 (italics added). Men thus have not only right to life, liberty, health, limb or goods, but moreover a simultaneous obligation to preserve these things for themselves and for others.
“And as it is equally possible that either of the parties may be in the right, and as in consequence of the independence of Nations (par. 40), no one can decide between them, the position of the two enemies is the same, so long as the war lasts.” Ibid iii. 4. 68. 258.
“War can not be just on both sides. One party claims a right, the other disputes the justice of the claim; one complains of an injury, the other denies having done it. When two persons dispute over the truth of a proposition it is impossible that the two contrary opinions should be at the same time true.” Ibid iii. 3. 39. 247.
“When differences arise each Nation in fact claims to have justice on its side, and neither of the interested parties nor other Nations may decide the question. The one who is actually in the wrong sins against its conscience; but as it may possibly be in the right, it can not be accused of violating the laws of the society of Nations.” Vattel Introduction par. 21, pp. 7 f.
“We may not use force against a free person, except in cases where this person is under obligation to us in a definite matter and for a definite reason not depending upon his judgment; briefly, in cases in which we have a perfect right against him.” Ibid Introduction par. 16, p. 7.
“Such is man’s nature that he is not sufficient unto himself and necessarily stands in need of the asssistance and intercourse of his fellows, whether to preserve his life or to perfect himself and live as befits a rational animal.” Ibid Introduction par. 10, p. 5.
“It is a principle of the natural law that one who makes a promise to another confers upon him a valid right to require the thing promised, and that, in consequence, a failure to keep a valid promise is a violation of a right belonging to the promisee and is as clearly an act of injustice as it would be to deprive him of his property. The basis of the peace, welfare, and safety of the human race is justice, the obligation of respecting the rights of others.” Ibid ii. 12. 163. 162.
“The study of the Law of Nations supposes… a previous knowledge of the Law of Nature; and in fact I shall presume, to a certain extent at least, such knowledge on the part of my readers. However, as recourse to other authorities in proof of a writer’s statements is troublesome, I have been careful to state briefly the more important of those principles of the natural law which apply to Nations. But I was not of the opinion that the demonstration of those principles need always be carried back to their primary sources, and I have at times been content to rest them upon certain common truths accepted by every fair-minded reader, without carrying the analysis further. My object is to persuade, and with that in view to advance as a principle no statement that will not readily be admitted by every reasonable man.” Ibid Preface p. 12a; cf. also i. 2. 18. 14.
Cf. ibid ii. 12. 163, quoted supra, p. 138, n. 3, also Bk. ii, chap. 15 entitled “The Faith of Treaties,” especially pars. 218 ff., pp. 188 ff.
Though neither Vattel nor Wolff gives any indication of knowledge of Locke’s theories it is interesting how close the latter was to them also on this point, namely the necessity to transfer the right to judge on the extent of an obligation in order to arrive to perfect rights and obligations. “Man being born — writes Locke, — as has been proved, with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the law of Nature, equally with any other man has by nature a power not only to preserve his property — that is, his life, liberty, and estate, against the injuries and attempts of other men, but to judge of and punish the breaches of that law in others…. But because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto punish the offenses of all those of that society, there, and there only, is political society where every one of the members has quitted this natural power, resigned it up into hands of the community.… And thus all private judgment of every particular member being excluded, the community comes to be umpire, and… decides all the differences that may happen between any members of that society.” Locke, op. cit, sec. 87, p. 117.
In the Nottebohm Case (Liechtenstein v. Guatemala), I. C. J. Reports (1955), p. 4, the International Court of Justice maintained that “it does not depend on the law or on the decision of Liechtenstein whether that State is entitled to exercise its protection, in the case under consideration. To exercise protection, to apply to the Court is to place oneself on the plane of international law. It is international law which determined whether a State is entitled to exercise protection and to seise the court. The naturalization of Nottebohm was an act performed by Liechtenstein in the exercise of its domestic jurisdiction. The question to be decided is whether that act has the international effect here under consideration.” A further passage in the same decision is almost diametrically opposed to Vattel’s opinion that the sovereign state must remain the final judge of the justice of his cause in cases falling under its exclusive jurisdiction. “If the [international] arbitrators… should confine themselves to the view that nationality is exclusively within the domestic jurisdiction of the State, it would be necessary for them to find that they were confronted by two contradictory assertions made by two sovereign States, assertions which they consequently have to regard as of equal weight, which would oblige them to allow the contradiction to subsist and thus fail to resolve the conflict submitted to them.” Quoted from A. J, XLIX (1955), 398 f.
“The offices of humanity consist in the fulfillment of the duty of mutual assistance which men owe to one another because they are men, that is to say, because they are made to live together in society, and are of necessity dependent upon one another’s aid for their preservation and happiness, and for the means of a livelihood conformable to their nature. Now, since Nations are no less subject to the laws of nature than individuals (Introd., par. 5), the duties which a man owes to other man, a Nation owes, in its way, to other Nations (Introd., par. 10). Such is the foundation of those common duties, those offices of humanity, which Nations mutually owe one another. In general, they consist in doing all in our power for the welfare and happiness of others, as far as is consistent with our duties towards ourselves.” Ibid. ii. 1 2. 114.
“An obligation gives rise to a correlative right to the things without which the obligation can not be fulfilled; hence every absolute, necessary, and indispensable obligation gives rise to rights which are equally absolute, necessary and indefeasible. Nature does not impose obligations upon men without giving them the means of fulfilling them. They have an absolute right to the necessary use of these means; nothing can deprive them of this right, just as nothing can dispense them from their natural obligations.” Ibid ii. 9. 116. 149.
The right of necessity “is the right which mere necessity gives to certain acts, otherwise unlawful, when without the doing of those acts it is impossible to fulfill an indispensable obligation. We must be perfectly sure that in the given instance the obligation is really indispensable and that the act in question is the only means of fulfilling it. If one or the other of these two conditions is wanting, the right of necessity does not exist.” Ibid ii. 9. 119. 149; cf. also i. 2. 18–19. 14.
“[W]hen its most sacred duties and most precious rights are at stake, a Nation recognizes no higher judge than itself.” Ibid i. 5. 66. 31.
“Since Nations are free, independent, and equal, and since each has the right to decide in its conscience what it must do to fulfill its duties, the effect of this is to produce, before the world at least, a perfect equality of rights among Nations in the conduct of their affairs and in the pursuit of their policies. The intrinsic justice of their conduct is another matter which it is not for others to pass upon finally; so that what one may do another may do, and they must be regarded in the society of mankind as having equal rights.… It must happen, then, on many occasions that Nations put up with certain things although in themselves unjust and worthy of condemnation, because they can not oppose them by force without transgressing the liberty of individual Nations and thus destroying the foundations of their natural society. And since they are bound to advance that society, we rightly presume that they have agreed to the principle just established. The rules resulting from it form what Wolff calls the voluntary Law of Nations; and there is no reason why we should not use the same expression, although we have thought it our duty to differ from that learned man as to how the foundation of that law should be established.” Vattel Introduction par. 21, pp. 7 f.
For a rejection of Grotius’ view that the law of nations (i.e., the volitional law of nations) has an express consent of nations, see ibid iii. 12. 192. 306. “The necessary law prescribes what is of absolute necessity for Nations and what tends naturally to their advancement and their common happiness, the voluntary law tolerates what is impossible to forbid without causing greater evils.” Ibid
When a sovereign, or a Nation, is deliberating upon the steps he must take to fulfill his duty, he must never lose sight of the necessary law, which is always binding in conscience; but when it is a question of determining what he can demand of other States, he must consider the voluntary Law of Nations, and restrict even his just claims within the bounds of a law whose principles are consecrated to the safety and welfare of the universal society of Nations. Let him make the necessary law the constant rule of his own conduct; he must allow other to take advantages of the voluntary Law of Nations.
“The first rule of that law, with respect to the subject under consideration [i. e., effects of the regular war], is that regular war, as regards its effects must be accounted just on both sides.… Thus the rights founded upon the state of war, the legal nature of its effects, the validity of the acquisitions, made in it, do not depend, externally and in the sight of men, upon the justice of the cause, but upon the legality of the means as such, that is to say, upon the presence of the elements constituting a regular war. If the enemy observes all the rules of formal warfare (see chap. iv of this Book), we are not to be heard in complaint of of him as a violator of the Law of Nations; he has the same right as we to assert a just cause; and our entire hope lies in victory or in a friendly settlement.” Ibid iii. 12. 189–190. 305. Cf. also ibid iii. 12. 192. 306; iii. 4. 68. 258.
Ibid ii. 4. 49–52. 130; i. 13. 169. 71. “An intentional act of injustice is certainly an injury. A Nation has, therefore, the right to punish it, as we pointed out above when speaking of injuries in general (par. 52). The right to resist injustice is derived from the right of self-protection.” Ibid ii. 5. 69. 135. By the “right to punish” Vattel, however, does not understand the same thing as Grotius. To the latter “punishment in general means an evil of suffering which is inflicted because of an evil of action.… [I]t is a return for a crime.” Grotius ii. 20. 1. 462 f. “[T]he right [to punish] arises from the crime of the guilty.” Ibid ii. 20. 2. 464. To Vattel, on the other hand, the right to punish is merely an extension of the right to self-protection. Unless one’s own self-preservation is endangered one cannot “punish” an aggressor, “for nature only confers upon men and Nations the right to punish to be used for their defense and security (par. 169); whence it follows that we can punish only those who have done us an injury.” Vattel i. 19. 232. 92. Attacking the position of objective punishment taken by Grotius Vattel wrote: “It is surprising to hear the learned and judicious Grotius tell us that a sovereign can justly take up arms to punish Nations which are guilty of grievous crimes against the natural law.… He was led into that mistake from his attributing to every free man, and hence to every sovereign, a certain right to punish crimes in grievous violation of the laws of nature, even when those crimes do not affect his rights or his safety. But we have shown (Book I, par. 169) that the right to punish belongs to men solely because of the right to provide for their safety; hence it only exists as against those who have injured them.” Vattel ii. 1 7. 116.
“So long as a neutral Nation desires to be secure in the enjoyment of its neutrality, it must show itself in all respects strictly impartial towards the belligerents; for if it favors one to the prejudice of the other, it can not complain if the latter treats it as an adherent and ally of the enemy.… [T]he elements of this impartiality which a neutral Nation must observe [are]:… (1) To give no help, when we are not under obligation to do so, nor voluntarily to furnish either troops, arms, or munitions, or anything that can be directly made use of in the war.… (2) In all that does not bear upon the war a neutral and impartial Nation must not refuse to one of the parties, because of his present quarrel, what it grants to the other.” Ibid iii. 7. 104. 268.
“When a war breaks out between two Nations, all the others who are not bound by treaties are free to remain neutral; and if either of the belligerent sovereigns should seek to force them to join in with him he would do them an injury, since he would be encroaching upon their independence in a very essential point. It is for them alone to determine whether they have any reasons for taking sides; and there are two things for them to consider: (1) The justice of the cause. If that is clear, they can not aid the unjust party; on the contrary, it is honorable to give their aid to oppressed innocence, when they can do so. If the cause be of doubtful justice, the other nations may suspend their judgment, and not enter into a quarrel which does not concern them. (2) When they are convinced which party is in the right it still remains for them to determine whether it be for the good of the State to intervene in the affair and take up the war.” Ibid iii. 7. 106. 268 f.
The laws of the natural society of Nations are so important to the welfare of every State that if the habit should prevail of treading them under foot no Nation could hope to protect its existence or its domestic peace, whatever wise and just and temperate measures it might take. Now all men and all states have a perfect right to whatever is essential to their existence, since this right corresponds to an indispensable obligation. Hence all Nations may put down by force the open violation of the laws of the society which nature has established among them, or any direct attacks upon its welfare.
“But care must be taken not to extend these rights so as to prejudice the liberty of Nations. They are all free and independent, though they are so far bound to observe the laws of nature that if one violates them the others may restrain it; hence the Nations as a body have no rights over the conduct of a single Nation, further than the natural society finds itself concerned therein. The general and common rights of Nations over the conduct of a sovereign State should be in keeping with the end of the society which exists among them.” Ibid Introduction pars. 22–23, p. 8.
“If, then, there should be found a restless and unprincipled Nation, ever ready to do harm to others, to thwart their purposes, and to stir up civil strife among their citizens, there is no doubt that all the others would have the right to unite together to subdue such a Nation, to discipline it, and even to disable it from doing further harm.” Ibid ii. 4. 53. 130.
Ibid. iii. 3. 43. 248. For a short comparative exposition of the views held by Vitoria, Gentilis, Grotius, Pufendorf, Wolff and Vattel on the problem of preventive war see Quincy Wright, Problems of Stability and Progress in International Relations (Berkeley: University of California Press, 1954), pp. 68–71.
“Let us apply, moreover, to unjust Nation what we said above (par. 53) with respect to a wrong-doer. If a Nation were to make open profession of treading justice under foot by despising and violating the rights of another whenever it had an apportunity of doing so, the safety of the human society at large would warrant all the other nations in uniting together to subdue and punish such a Nation. We are not overlooking the principle laid down in the Introduction that it does not belong to nations to set themselves up as judges over one another.” Ibid ii. 5. 70. 135.
“Nations which are always ready to take up arms when they hope to gain something thereby are unjust plunderers; but those who appear to relish the horrors of war, who wage it on all sides without reason or pretext, and even without other motive than their savage inclination, are monsters, unworthy of the name of men. They should be regarded as enemies of the human race, just as in civil society persons who follow murder and arson as a profession commit a crime not only against the individuals who are victims of their lawlessness, but against the state of which they are the declared enemies. Other nations are justified in uniting together as a body with the object of punishing, and even of exterminating, such savage peoples.” Ibid iii. 3. 34. 245 f.; cf. ibid, par. 45.
“As all Nations have an interest in maintaining the faithful observance of treaties and in causing them to be everywhere regarded as sacred and inviolable, they have likewise the right to unite together to check a Nation which shows a contempt for them, which openly makes sport of them, which violates them and treads them under foot. Such a Nation is a public enemy which attacks the foundations of the common peace and security of Nations. But care must be taken not to extend this principle so as to impair the liberty and independence which belong to all Nations. When a sovereign breaks his treaties and refuses to fulfill them the conclusion is not to be at once drawn that he looks upon them as having no real significance and that he despises their binding force. He may have good reasons for believing himself released from his promises, and other sovereigns are not authorized to pass judgment upon him. It is the sovereign who fails to keep his promises on clearly trivial grounds, or who does not even take the trouble to offer reasons, or to disguise his conduct and cover up his bad faith — it is he who deserves to be treated as an enemy of the human race.” Vattel ii. 15. 222. 188 f. Cf. also ibid ii. 4. 62. 134.
Cf. Hans Staub, Die völkerrechtlichen Lehren Vattels’ (Berlin: F. Vahlen, 1922), p. 129.
Since… one Nation owes, in its way, to another Nation the duties that one man owes to another, we may boldly lay down this general principle: Each State owes to every other State all that it owes to itself, as far as the other is in actual need of its help and such help can be given without the State neglecting its duties towards itself. Such is the eternal and immutable law of Nature. Those who may find it completely subversive of wise statesmanship will be reassured by the two following considerations.
“Quoniam gentes diversae inter se spectantur tamquam personae liberae, in statu naturali viventes,… ab obligatione autem naturali, propterea quod in civitatem coivere, se liberare non potuerunt,… ad eadem officia turn erga se ipsos turn erga gentes alias obligantur, qua singuli singulis tenentur.… Gentes omnes in civitatem coivisse intelliguntur, cujus singula membra sunt singulae gentes seu civitates particulares. Ipsa enim natura instituit inter omnes gentes societatem, et ad earn colendam eas obligat communis boni conjunctis viribus promovendi causa.… Absit itaque, ut tibi persuadeas, nullam prorsus esse gentem quae non consentire intelligatur in civitatem, in quam omnes coire jubet ipsa natura. Quemadmodum veri in tutela praesumitur consentire pupillus quatenus consentire deberet, immo consensurus esset, siquidem commoda sua intelligeret; ita non minus gentes quae defectu acuminis non perspiciant, quantae utilitatis sit esse membrum civitatis illius maximae, consentire in hanc associationem praesumuntur.” Christian Wolff, Institutiones iuris naturae et gentium, Pt. IV, quoted from Knubben, Die Subjekte des Völkerrechts, p. 73. Cf. also Kaltenborn, Kritik des Völkerrechts, pp. 74 f.
“Such a society has its own affairs and interests; it deliberates and takes resolutions in common, and it thus becomes a moral person having an understanding and a will peculiar to itself, and susceptible at once of obligations and of rights.” Vattel Introduction par. 2, p. 3. “Since Nations are composed of men who are by nature free and independent, and who before the establishment of civil society lived together in the state of nature, such Nations or sovereign States must be regarded as so many free persons living together in the state of nature….” Ibid par. 4. “As men are subject to the laws of nature, and as their union in civil society can not exempt them from the obligation of observing those laws, since in that union they remain none the less men, the whole Nation, whose common will is but the outcome of the united wills of the citizens, remains subject to the laws of nature and is bound to respect them in all its undertakings. And since right is derived from obligation, as we have just remarked, a Nation has the same rights that nature gives to men for the fulfillment of their duties.” Ibid par. 5, pp. 3 f. In contrast to all these equalities between individuals and civil society Vattel hastens to assert in the very next paragraph: “A civil society, or a State, is a very different subject from an individual person, and therefore by virtue of the natural law, very different obligations and rights belong to it in most cases. The same general rule, when applied to two different subjects, can not result in similar principles, nor can a particular rule, however just for one subject, be applicable to a second of a totally different nature.” Ibid par. 6, p. 4.
“This society may be regarded as a moral person, since it has an understanding, a will, and a power peculiar to itself; and it is therefore obliged to live with other societies or States according to the laws of the natural society of the human race, just as individual men before the establishment of civil society lived according to them; with such exceptions, however, as are due to the difference of the subjects.” Ibid par. 11, p. 6.
“Proof can be had from works on the natural law that liberty and independence belong to man by his very nature, and that they can not be taken from him without his consent. Citizens of a state, having yielded them in part to the sovereign, do not enjoy them to their full and absolute extent.” Vattel Introduction par. 4, p. 3; cf. also i. 2. 16. 13.
“Sovereingty is the supreme power over citizens and subjects, unrestrained by the laws.” Bodin De re publics i. 8, as quoted by G. H. Sabine and Walter J. Shepard in “Translator’s Introduction” to Hugo Krabbe, The Modern Idea of the State (New York: Appleton, 1927), p. xviii. Cf. also Knubben, Die Subjekte des Völkerrechts, pp. 35 ff.
“[B]ecause the right of bearing the person of them all, is given to him [the sovereign], by covenant only of one to another and not of him to any of them; there can happen no breach of covenant on the part of the sovereign; and consequently none of his subjects, by any pretence of forfeiture, can be freed from his subjection. That he which is made sovereign maketh no covenant with his subjects beforehand, is manifest.” Hobbes Leviathan 18. 114.
“Concerning the offices of one sovereign to another, which are comprehended in that law, which is commonly called the law of nations, I need not say anything in this place; because the law of nations, and the law of nature, is the same thing.… And the same law, that dictateth to men that have no civil government, what they ought to do, and what to avoid in regard of one another, dictateth the same to commonwealths, that is to the consciences of sovereign princes and sovereign assemblies.” Ibid 30. 232.
“Hobbes, whose work, in spite of its paradoxes and its detestable principles, shows us the hand of the master… was the first… to give us a distinct though imperfect idea of the Law of Nations.… His statement that the Law of Nations is the natural law as applied to States or Nations is sound. But in the course of this work we shall see that he was mistaken in thinking that the natural law did not necessarily undergo any change in being thus applied; a belief which led him to conclude that the principles of the natural law and those of the Law of Nations were exactly the same.” Vattel Preface pp. 5a f. Cf. Knubben, Die Subjekte des Völkerrechts, p. 38.
Like Hobbes’s “sovereign assemblies.” Hobbes Leviathan 30. 232.
Locke, The Second Treatise on Civil Government, secs. 96–99 ff., pp. 124–25; cf. also Leo Strauss, Natural Right and History, pp. 231 ff.
Baron de Montesquieu, The Spirit of the Laws, trans. Thomas Nugent (New York: Hafner Publishing Company, 1949), Bk. XI, chap. iv, p. 150.
Vattel refers in several places expressly to Montesquieu’s Spirit of Laws, e.g. Vattel i. 5. 62; i. 12. 149, 156; iii. 13. 201. Yet these references are only on matters of secondary importance. On the other hand, Vattel nowhere refers expressly to Locke, though he must have been influenced by latter’s ideas either directly or indirectly. Closeness of some other of Vattel’s ideas to Locke has been already recorded, supra, p. 134, n. 2, p. 139, n. 4, see also infra, p. 173, n. 3.
According to Roscoe Pound is “the personification of the state… as old as Plato’s Republic.” Pound, “Philosophical Theory and International Law,” Bibliotheca Visseriana, I (1923), 79.
“Die Römer vollbrachten mit ihrem praktisch-tüchtigen Geiste ein System des Vermögensrechtes, welches in seinen Grundzügen praktische Gültigkeit für alle Zeiten behaupten zu können scheint, also einen allgemein menschlichen, vernünftigen Charakter an sich trägt. Die Anerkennung des einen wesentlichen Elementes für ein freies Rechtsleben, nämlich der selbständigen Persönlichkeit gegenüber anderen Persönlichkeiten, sowie namentlich gegenüber dem Staate in der Sphäre des Vermögens, des Eigenthums, und der Forderungen trug diesen wesentlichen Fortschritt für die weltgeschichtliche Rechtsentwicklung in sich.” Kaltenborn, Die Vorläufer des Hugo Grotius, pp. 33 f.
The main feature of these juristic persons is that they have rights and obligations in their own, corporate, capacity to the exclusion of individual members, and that their legal capacity remains unchanged regardless of changes in the membership. In Ulpian’s words: “Si quid universitati debetur, singulis non debetur: nec quod debet universitas, singuli debent. In… universitatibus nihil refert, utrum omnes idem maneant an pars maneat vel omnis immutati sint.” Digesta iii. 4. 7. 1, 2. The legal capacity of juristic persons is like that of infants. As such they are unable to transact legal business with other persons but through their constituted representatives. The Roman “universitas” remained strictly confined to private law. It is an irony in view of the later widely used individual-state analogy that the Roman jurist Gaius used the reverse analogy. He tried to explain the functioning of a juristic person by comparing it to the state (res publica): “Quibus autem permissum est corpus habere collegii societatis sive cuiusque alterius eorum nomine, proprium est ad exemplum rei publicae habere res communes, arcem communem et actorem sive syndicum, per quem tamquam in re publica, quod communiter agi fierique oportet, agatur, fiat.” Digesta iii. 4. 1. 1. In the later imperial period the state as such was also considered as a juristic person (fiscus caesaris) but this strictly in the sense of private law. The character of the Roman state in public law (res publica, Senatus Populusque Romanus) was never quite well defined by Romans. Cicero’s frequently, but only partially, therefore out of context, quoted definition reads in full: “Est igitur, inquit Africanus, res publica res populi, populus autem non omnis hominum coetus quoquo modo congregatus, sed coetus multitudinis iuris consensu et utilitatis communione sociatus.” Cicero De Republica i. 25 (Loeb Classical Library ed.; Cambridge: Harvard University Press, 1951), p. 64. Thus Henry Wheaton in his Elements of International Law, 1866 ed., “Classics of International Law” No. 19, R. H. Dana, Jr., and G. G. Wilson, eds. (Oxford: Clarendon Press, 1936), i. 2. 17. 25, quotes partially: “Respublica est coetus multitudinis, juris consensu et utilitatis communione societas [sic].” G. G. Wilson in an editorial note amended this quotation by inserting “sociatus” instead of “societas.” He did not, however, insert the missing reference to res populi and populus Cicero in his definition thus draws a distinction between “populus” as for a special political purpose organized multitude and “res publica” as such which is, as the name suggests, more an object of property and rights, rather than a subject or personality. Cf. also De Republica i. 26. 64; i. 27. 68; i. 32. 74. One can reasonably assume that Vattel was well acquainted with these sources. In his work there are several references to the Iustinian’s Corpus Iuris Civilis as well as to Cicero’s works. The latter he was perusing “with infinite profit” early in his career while waiting for a diplomatic assigment. Cf. LaPradelle, Introduction to Vattel, p. v. For the leading motto of his treatise Vattel quoted on the title-page another passage of Cicero, from Somnium Scipionis, which, however, definitely does not refer to states (civitates) as personalities but as “councils and assemblages of men bound together by law.” On importance of Roman law, for the development of many concepts of international law see Lauterpacht, Private Law Sources and Analogies of International Law (London: Longmans, Green and Co., 1927), chap. i, passim Cf. also Karl von Czyhlarz, Lehrbuch der Institutionen des römischen Rechtes (6th ed.; Wien: F. Tempsky, 1902), pp. 77 ff., par. 36 “Die juristischen Personen.”
“When in the sixteenth and seventeenth centuries, writers like Hugo Grotius, sought to formulate ‘a system of law which should govern the relationships between sovereign states, they did so by applying to the affairs of States four fundamental notions borrowed from the sphere of private individuals and derived from Roman law. Those concepts were person, property, contract and injury, introduced into international law by Zouch as: status, dominium, debitum and delictum.’ Gerhart Niemeyer, Law Without Force: The Function of Politics in International Law (1941), pp. 11 ff.” Briggs, op. cit, pp. 18 f.
“[I]ure enim naturali ab initio omnes homines liberi nascebantur.” Institutiones i. 2. 2. Here “ius naturalis” or law of nature should be understood in the not all too clear sense as employed in the Corpus Iuris Civilis, and not in the sense used by naturalist writers such as Vattel. Cf. Vattel Preface p. 4a. Cf. also supra, p. 50, nn. 2, 3.
Johannis Althusii, Politica methodice digesta et exemplis sacris et profanis illustrata (Herborn: Christophorus Corvinus, 1603; 2d 1610). Althusius was brought out of oblivion by Otto Gierke in his book Johannes A lthusius and die Entwicklung der naturrechtlichen Staatstheorien (1st ed. 1880; 4th ed., Breslau: Verlag von M. & H. Marcus, 1929). Gierke points out that Althusius’ theories represent an achievement only later realized by other political theorists and traces Althusius’ influence on a quite wide circle. Even Grotius felt the need to reject, though anonymously, Althusius’ theory of popular sovereignty. Grotius i. 3. 8: “Opinion of those must be rejected who hold that everywhere and without exception sovereignty resides in the people.”
Cf. Otto Gierke, Natural Law and the Theory of Society, 1500–1800, trans. Ernest Barker (2 vols.; Cambridge: At the University Press, 1934). Sabine and Shepard in Krabbe, op. cit, pp. xl ff.
“Now that spirit or ‘essential character’ in a people is the full and perfect union of civic life, the first product of which is sovereign power; that is the bond which binds, the state together, that is the breath of life which so many thousands breathe, as Seneca says. These artificial bodies, moreover, are clearly similar to a natural body.” Grotius ii. 9. 3. 310; cf. also, ii. 15. 12. “Civitates respectu totius generis humani privatorum locum obtinent.” Mare Liberum, chap. v, quoted by Lauterpacht, Private Law Sources and Analogies of International Law, p. 81.
In the De iure praede commentarius Grotius speaks of state (res publics) as a “corporate whole, which is in a sense a condensed version of that larger entity [the universal society established by nature].” Chap. ii. p. 20, explanation in brackets is contained in the “Classics” edition. “[Grotius’] analogy of states and individuals has proved a beneficent weapon in the armoury of international progress. It is not the result of any anthropomorphic or organic conception of the state as being — biologically as it were — assimilated to individuals, as being an individual person `writ large.’ The analogy is much more simple, more direct, and more convincing. The analogy — nay, the essential identity — of rules governing the conduct of states and of individuals is not asserted for the reason that states are like individuals; it is due to the fact that states are composed of individual human beings; it results from the fact that behind the mystical, impersonal, and therefore necessarily irresponsible personality of the metaphysical state there are the actual subjects of rights and duties, namely human beings.” Lauterpacht, “The Grotian Tradition in International Law,” op. cit, p. 27.
“Since the state of nature in its original meaning is a situation existing among individuals, the assumption that states live in an analogous situation is possibly only if states can be compared to individuals as subjects of legal rights and duties. In Pufendorf ’s doctrine this possibility results from the concept of the juristic person (persona months), that is of the person having rights and duties recognized by law. This concept covers individual human beings as well as corporate bodies, and therefore also states. Pufendorf thus can conceive of the state which is supposed to be established by agreements made binding by natural law, as ’single person with intelligence and will, performing other actions peculiar to itself and separate from those of individuals.’ (De Lure Naturae et Gentium vii. 2. 13. 983.)” Schiffer, The Legal Community of Mankind, pp. 51 f.
“Par. 850. Puisque dans une société les associés réunissent leurs forces pour agir, chaque société doit être considérée comme une personne morale. C’est pourquoi puisque les hommes sont naturellement libres, et qu’en contractant une société, ils s’obligent seulement les uns envers les autres, et non envers d’autres, qui sont hors de la sociétè, chaque société est naturellement libre. Et par conséquent plusieurs sociétés différentes doivent être considérées comme autant de personnes particulières libres.” Christian Wolff, Institutions du droit de la nature et des gens, traduit du Latin par M. M. • • • (Leyde: E. Luzac, 1772), p. 88. In his later work Jus gentium methodo scientifica pertractatum (1764 ed.), “The Classics of International Law,” No. 13, trans. J. Drake (Oxford: Clarendon Press, 1934), Wolff simply equates nations to individual free persons without further explaining the former’s “moral” character: “Nations are regarded as individual free persons living in a state of nature. For they consist of a multitude of men united into a state. Therefore since states are regarded as individual free persons living in a state of nature, nations also must be regarded in relation to each other as individual free persons living in a state of nature.” Vol. II, p. 9, Prolegomena par. 2. For a good characterization of the all-absorbing concept of state as a moral person in Wolff ‘s theory see Olive, “Christian Frederic de Wolff,” Les Fondateurs du droit international, pp. 457 f.
Brierly, The Law of Nations, pp. 37 ff. Kaltenborn, Kritik des Völkerrechts, pp. 81–85, pp. 66 f.
“It clearly follows from what has been said that a Nation should avoid carefully and as far as possible whatever might bring about its destruction, or that of the State, for the two are identical.” Vattel i 2. 19. 14. “Nations or States are political bodies, societies of men who have united together.” Ibid Introduction par. 1, p. 3. Cf. also ibid i. 1 1. 4; i. 2. 20.
“The fundamental law which determines the manner in which the public authority is to be exercised is what forms the constitution of the State. In it can be seen the organization by means of which the Nation acts as a political body.” Ibid. i 3. 27. 17. This text vaguely resembles to Cicero’s distinction between “populus” and “res publica”; cf. supra, p. 166, n. 5.
“From the fact that this group of men forms a society in which they have common interests and must act in concert it is necessary that a public authority be set up, which shall regulate and prescribe the duties of each member with respect to the object of the association. This public authority constitutes the sovereignty; and he, or they, in whom it is vested is the sovereign.” Ibid. i. 1. 1. 11
“The political society is a moral person (Introd., par 2) inasmuch as it possesses an understanding and a will which it makes use of in the conduct of its affairs, and inasmuch as it is capable of obligations and of rights. When, therefore, it confers the sovereignty upon a certain person it vests in him its understanding and its will it makes over to him its obligations and its rights as far as they relate to the administration of the State and the exercise of the public authority. The leader of the State, the sovereign, thus becomes the depositary of the obligations and rights relating to the government, and in him is to be found the moral person which, without ceasing to exist fundamentally in the Nation, no longer acts except through him and by him. Such is the origin of the representative character attributed to the sovereign. He represents the Nation in all matters which belong to his position as a sovereign.” Ibid i. 4. 40. 21; cf. also ibid i. 4. 41–43 and 21. 265. 101.
“But this high attribute of sovereignty does not prevent a Nation from putting restraint upon an insupportable tyrant. It may even pass sentence upon him respecting in his person the dignity of his rank, and withdraw itself from obedience to him. It is to this incontestable right that a powerful republic [Netherlands] owes its birth.” Ibid i. 4. 51. 23.
Vattel in his outline of the inviolable rights of individual resembles much more the reasoning employed by Locke, to whom he does not refer, than to Hobbes, whose influence he freely admits. According to Hobbes all rights which the individual has had in the state of nature were surrendered to the sovereign in the covenant establishing civil society. Leviathan 17. 112; 18. 113 ff. Locke, on the other hand, held that men retained certain natural rights and that if the government encroached upon these, individuals could resort to the natural right of revolution. The Second Treatise on Civil Government, secs. 131 ff. This was, of course, the theory of the British constitution of 1688, which Locke was defending and which Vattel so highly prized as the “happy constitution… a monument which is an honor to the human race, and which can teach kings how glorious it is to rule a free people.” Vattel i. 2. 24. 15. Vattel’s theory of partial yielding of natural liberty through the social compact could be well contrasted to the influential theory of the social contract developed by Vattel’s contemporary Rousseau. Rousseau understands by the social contract a total alienation of all natural rights to the civil society and a receiving in exchange of civil rights. Vattel is more or less inconclusive on this point. In the same year (1758) as Vattel’s treatise appeared Rousseau published his Discourse on Political Economy where the idea of the “general will” as distinct from the will of all is well developed. The final form of Rousseau’s theory was stated a few years later (1762) in his Social Contract. J J. Rousseau, The Social Contract and Discourses, trans. G. D. H. Cole (“Everyman’s Library” ed.; New York: E. P. Dutton, 1950), pp. 14–16; 293.
“As far as [religion] exists in the heart it is a matter of conscience, in which each one should follow his own light. As far as it is exterior and publicly established, it is an affair of the state.” Vattel i. 12. 127. 53.
We conclude, therefore, that liberty of conscience is derived from the natural law and is inviolable. It is to the world’s shame that a truth of this nature need be proved.
“But great care must be taken not to extent that liberty beyond its proper limits. A citizen has merely the right not to be subject to any constraint in the matter of religion and has by no means the right of doing publicly whatever he pleases, no matter how his conduct affects society. The establishment of religion by law and its public exercise are affairs of state and are necessarily under the jurisdiction of the public authority.” Ibid i. 12. 128 f. 53 f.
“Since compacts can be broken by the common consent of the parties, if the individuals who compose a Nation should unanimously agree to break the bonds which unite them, they may do so and thereby destroy the State or Nation; but they would without doubt do wrong if they were to take this step without serious and just reasons.” Ibid i. 2. 16. 14.
“If the majority of a free people… should grow weary of their liberty and desire to subject themselves to the rule of a king, certain citizens, more tenacious of that liberty,… are by no means bound to submit to the new government. They may leave a society which thus seems to be undergoing a process of dissolution and re-creation; and they have the right to withdraw elsewhere — to sell their lands and to carry away all their goods.” Ibid i. 3. 33. 19. “But a distinction must… be made between what one has an actual right to do and what one may do honorably and with strict regard to duty; in a word, between internal and external obligation. Every man has the right to leave his country and take up his abode elsewhere when by so doing he does not endanger the welfare of his country. But a good citizen will never take such a step without necessity or without urgent reasons.” Ibid i. 19. 220. 89.
“There are certain cases in which a citizen has the absolute right, based upon reasons drawn from the very compact of civil society, to renounce allegiance to his country and abandon it. (1) If a citizen can not find support in his country he is certainly at liberty to seek it elsewhere; for since men only enter into civil society in order to obtain the more easily a means of livelihood and render their state of life happier and more secure, it would be absurd to pretend that a member to whom the society can not furnish the necessities of life has not the right to leave it. (2) If the body of the society, or the sovereign who represents it, fail absolutely in their obligations towards a citizen, the latter may break off from them; for the contract between the society and its members is reciprocal.… (3) If the majority of a Nation, or the sovereign who represents it, seek to establish laws in matters to which the compact of society can not oblige all citizens to submit, those to whom the laws are repugnant have the right to withdraw from the society and settle elsewhere.” Ibid i. 19. 223. 90. Cf. also i. 4. 51 ff.; i. 16. 195; i. 17. 200 ff.; ii. 4. 49; iii. 18. 287 ff.
“Banishment and exile do not take away from a man his human personality, nor consequently his right to live somewhere or other. He holds this right from nature, or rather from the Author of nature, who has intended the earth to be man’s dwelling place. The introduction of private ownership of land can not be in derogation of this right to the means of obtaining the necessities of life, a right which belongs to every man by birth. But if in the abstract this right is a necessary and perfect one it must be observed that it is only an imperfect one relative to each individual country; for on the other hand, every Nation has the right to refuse to admit an alien into its territory when to do so would expose it to evident danger or cause it serious trouble.” Ibid i. 19. 229 f. 92. “The earth is intended to supply its inhabitants with food; hence a man who is without resources is not called upon to starve because all the means of supplying his wants are controlled by others. When, therefore, a Nation is in absolute need of supplies of food, it can force its neighbors, who have an oversupply, to furnish it food at a just price.… Its urgent necessity restores the original state of common ownership, the abolition of which could not deprive anyone of the necessities of life (par. 117). The same right belongs to individuals when a foreign Nation refuses them just assistance ” Ibid ii. 9. 120. 149. Vattel quotes an actual example to corroborate this principle.
“When, therefore, men unite in civil society and form a separate State or Nation they may, indeed, make particular agreements with others of the same State, but their duties towards the rest of the human race remain unchanged; but with this difference, that when men have agreed to act in common, and have given up their rights and submitted their will to the whole body as far as concerns their common good, it devolves thenceforth upon that body, the State, and upon its rulers, to fulfill the duties of humanity towards outsiders in all matters in which individuals are no longer at liberty to act, and it peculiarly rests with the State to fulfill these duties towards other States.” Vattel Introduction par. 11, pp. 5–6.
“When men, by the act of associating together, form a State or Nation, each individual agrees to procure the common good of all, and all together agree to assist each in obtaining the means of providing for his needs and to protect and defend him. It is clear that these reciprocal agreements can only be fulfilled by maintaining the political association. The whole Nation is therefore bound to maintain it; and since its maintenance constitutes the self-preservation of a Nation, it follows that every Nation is bound to preserve its corporate existence.” Ibid i. 2. 16. 13. From this passage it would appear that a reciprocal contract exists between citizens only, obliging them to “maintain” the Nation. Elsewhere, however, Vattel said that “the contract between the society and its members is reciprocal.” Ibid i. 19. 223. 90. (Italics added.)
Vattel is in fact oscillating here between the positions taken by Hobbes, on the one hand, and by Locke, on the other. Hobbes thought of a covenant between citizens only in favor of the sovereign. “The right of bearing the person of them all, is given to him they make sovereign, by covenant only of one to another, and not of him to any of them; there can happen no breach of covenant on the part of the sovereign.” Leviathan 18. 114. Locke’s construction, however, implicitly called for two contracts: for an original “pactum unionis” by which men “unite into a community.… And thus, that which begins and actually constitutes any political society is nothing but the consent of any number of freemen capable of majority, to unite and incorporate into such a society.” The Second Treatise on Civil Government, sec. 99, p. 125. The second contract could be called also “pactum subjectionis” by which the established society submits itself to a ruler, to the government, which in its original form consists in the will of the majority, and then in the person, or persons, appointed by that majority. Cf. ibid, sec. 96, p. 124. “The difficulty with this theory is that Locke is nowhere clear as to what precisely does arise by the ‘original compact.’ Is it society itself or only government?… To clarify this problem those Continental writers, like Althusius and Pufendorf, who had elaborated the theory of compact most carefully, had postulated two contracts, the one between individuals giving rise to a community and the other between the community and its government. Some such position Locke tacitly assumes, though he nowhere states it. The twofold contract, of course, explains nothing, since the propriety of using the same concept to cover the two cases is really the doubtful point, but it does give formal clarity to the theory.” George H. Sabine, A History of Political Theory (New York: Henry Holt and Company, 1947), pp. 532 f.
“The body of a Nation, therefore, may not abandon a province, a town, or even an individual belonging to it, unless necessity would constrain it to do so, or urgent reasons of public safety make the act lawful.” Vattel i. 2. 17. 14; cf. also ibid i. 2. 15. 13.
“If men were always at once just and enlightened the laws of nature would doubtless be sufficient for society. But ignorance, the deceptions of self-love, and passion too often render those sacred laws ineffectual. Hence we see that all civilized Nations have felt the necessity of making positive laws.… At times it is even necessary to depart from natural justice in order to prevent abuse and fraud and to adapt the laws to circumstances; and since the sentiment of duty is often insufficient to control men’s conduct, there is need of a penal sanction to make laws fully efficacious. The Law of Nature is thus supplemented by the civil law.” Ibid i. 13. 159. 68; cf. also ibid ii. 1. 16. 117 f.
Already according to Wolff “gentes… defectu acuminis non perspiciant.” Institutiones Pt. IV, quoted supra, p. 159, n. 5.
Cf. Vattel i. 6–17. “Son [i.e., Vattel’s] optimisme ne porte plus sur l’excellence de la nature humaine, mais sur l’infallibilité des réglementations sociales.… C’est bien ce défaut qui se trahit dans l’oeuvre de Vattel: demandant aux lois la perfection de l’homme, tout son système repose sur le rôle de l’État et constitue presque, pourrait-on dire, une sorte de socialisme d’État; il suffit pour s’en convaincre de se rendre compte des devoirs que Vattel réclame d’un `bon gouvernement’ et d’apprécier l’étendue des fonctions qu’il lui attribue.” A. Mallarmé, “Emer de Vattel,” Les Fondateurs du droit international, p. 500.
Professor Jessup credits Vattel with bringing into international legal theory the actually harmful notion of the injury to state through injury to its citizen. A Modern Law of Nations, pp. 9, 116.
“The sovereign is the real author of war, which is made in his name and at his command. The troops, both officers and soldiers, and in general all those persons by whom the sovereign carries on war, are only instruments in his hands. They execute his will and not their own.” Vattel iii. 2. 6. 237.
“If a sovereign who has the power to see that his subjects act in a just and peaceable manner permits them to injure a foreign Nation, either the State itself or its citizens, he does no less a wrong to that Nation than if he injured it himself. Finally, the very safety of the State and of society at large, demands this care on the part of every sovereign.” Ibid ii. 6. 72. 136; cf. also ibid ii. 6. 73–77. 136 f.
Ibid. par. 18, p. 7. Cf. also Edwin DeWitt Dickinson, The Equality of States in International Law (“Harvard Studies in Jurisprudence,” Vol. III; Cambridge: Harvard University Press, 1920), pp. 97–99.
Vattel ii. 3. 36. 126. “Strength or weakness, in this case, counts for nothing. A dwarf is as much a man as a giant is; a small Republic is no less a sovereign State than the most powerful Kingdom.” Ibid Introduction par. 18, p. 7.
“Hence, since precedence or priority of rank is a mark of superiority, no Nation or sovereign may claim a natural right to it. Why should Nations which are not subject to another Nation show deference to it against their will? However, as a large and powerful State has a much more important position in the universal society than that of a small State, it is reasonable that the latter should defer to the former on occasions where one must give place to the other, as in an assembly. The deference thus shown is a matter of mere ceremony, which takes away nothing from their essential equality and indicates only a priority of position, the first place among equals. The other will naturally give first place to the most powerful Nation, and it would be both useless and ridiculous for the weakest of them to attempt to contest it. The great age of a State will likewise be a consideration on such occasions; a new comer among States may not dispossess another of the honors it is enjoying, and very strong reasons are needed to obtain precedence in such a case.” Ibid. ii 3. 37. 126.
“They [i.e., Vattel and other naturalist writers] argued that as men in the ‘state of nature,’ that is to say, before their entry into the political state, were equal to one another, and as states are still in a ‘state of nature,’ therefore states must be equal to one another. The argument, however, is based on unsound premisses and in its natural meaning the conclusion is contradicted by obvious facts.… If [the doctrine of equality] merely means that the rights of one state, whatever they may be, are as much entitled to be protected by the law as the rights of any other, that is to say, if it merely denies that the weakness of a state is any excuse in law for disregarding its legal rights, then the statement is true, but obvious. But it is not true if it means, as it is easily understood to mean, that all states have equal rights, any more than it is true that all Englishmen have equal rights in our law, though they are all equally entitled to have whatever rights they have upheld by the law.” Brierly, The Law of Nations, pp. 116 f.; cf. also ibid, p. 38.
“In consequence of that liberty and independence it follows that it is for each Nation to decide what its conscience demands of it, what it can or can not do; what it thinks well or does not think well to do; and therefore it is for each Nation to consider and determine what duties it can fulfill towards others without failing in its duty towards itself. Hence in all cases in which it belongs to a Nation to judge of the extent of its duty, no other Nation may force it to act one way or another. Any attempt to do so would be an encroachment upon the liberty of Nations.” Vattel Introduction par. 16, pp. 6 f.
A convenient phrase in which Vattel introduces his individual-state analogy is: “One Nation owes, in its way, to another Nation the duties that one man owes to another.” Ibid ii. 1. 3. 114 (italics added). Cf. also Introduction pars. 4, 5, 7, 10, 11, 12, 15, 18, 22; i. 2. 16.
This is the s.c. “analogia proportionis.” Cf. Lauterpacht, Private Law Sources and Analogies in International Law, pp. 83 f., par. 35 “The Nature of Analogy”; also Walter Brugger, Philosophisches Wörterbuch (Wien: Herder Verlag, 1948), pp. 11 f., “Analogie.”
Thus in Book ii. entitled “Nations Considered in Their Relations with Other Nations” all chapters but two follow this pattern. The bulk of the law of nations is contained in this book, the first one being more a natural constitutional law. The sole exceptions in the second book, in the sense that only individual-state analogy is used without elucidating precedents, are chapters five entitled “Observance of Justice between Nations,” and eleven on “Usucaption and Prescription as between Nations.” Nevertheless the abstract rules of the former are further developed in the last chapter of this book, eighteen, on “The Manner of Settling Disputes between Nations” where several examples of the current state practice are given. In the eleventh chapter extensive references are made to provisions of Roman and other private laws, while no proper international precedents are quoted, probably for the lack of any. The same procedure is followed in Books iii on “War” and iv on “The Restoration of Peace: Embassies.” Actually these two books rely upon a few fundamental analogies between the individual and the state, contained in the starting chapters or in the previous books, to which references are made — e.g., iii. 1. 3–4, iii. 3. 25–26, 28. The bulk of the material, however, is the European customary practice in war presented as a set of rational rules and generously supplemented with Vattel’s own humanitarian sentiments. Cf. supra, p. 185, nn. 2, 3, for a not exhaustive enumeration of places where individual-state analogy was resorted to by Vattel. A good illustration of the concealed inductive method by which Vattel constructs his rules of the natural and voluntary law of nations is contained in the fourth chapter “The Declaration of War, and War in Due Form” of the third book. After the opening statements to the effect that the “natural law only allows it [namely war] as a last resort, that is to say when justice can be obtained in no other way,” iii. 4. 51. 254, Vattel summarizes the previously expounded prerequisites for a war in due form (cf. iii. 1–3). Then he adds the requirement that the war be declared in due form as one of the postulates of the law of nature. “As it is possible that the fear of actual war on our part will make an impression upon the mind of our adversary, and force him to do us justice, we owe it to mankind, and above all to the lives and happiness of our subjects, to give notice to that unjust Nation, or to its ruler, that we are now going to have recourse to the final remedy and make use of open force in order to bring him to reason.” Ibid iii. 4. 51. 254. Vattel then goes on with a description of the Roman forms of the declaration of war. Then he refers in par. 52 to “the regular practice of European powers at the present day.” A few paragraphs later he sums up: “The declaration of war must be published to the State to which it is made. This is all that the natural law of nations requires. However, if custom has introduced certain formalities, the Nations which, by adopting that custom have given their implied consent to those formalities, are bound to observe them, so long as they have not made known their intention not to do so (Introd., par. 26). In former times the European powers sent heralds, or ambassadors, to declare war; at present they content themselves with announcing it in their capital, in their principal towns, or upon the frontier.” Ibid iii. 3. 55. 255. In this concrete case it is without doubt that the precepts of the “natural law of nations” were firmly blended together with the existing practice of European powers in such a way that it is not possible to tell, where one ends and the other starts. A nation could conceivably make known its intention to dispense with any declaration of war altogether. Similarly, to give another example, is the “natural law of nations” derived empirically from the customs in treatment of neutrality. “The Law of Nature and of Nations has its fixed principles, and can give us rules on this subject as on others. There are, moreover, certain practices which have become customary among civilized Nations, and which must be conformed to, if a State does not wish to draw upon itself the blame of unjustly breaking the peace. As to the rules of the natural Law of Nations they result from an equitable adjustment of the laws of war to the liberty, the safety, the welfare, the commerce, and the other rights of neutral nations. It is upon that principle that we shall lay down the following rules:…” Ibid iii. 7. 109. 269 f. Then in the following few paragraphs the prevalent but, according to Vattel, reasonable and just contemporary practice of neutrality, supported by many references to historical precedents, and intermixed with his own abstract reasoning is given as the “natural Law of Nations” on the subject of neutrality.
Cf. Lauterpacht, Private Law Sources and Analogies in International Law pp. 84 ff., par. 34: The Limitations of Analogy.
“Man darf paradox behaupten, dass das Wolff’sche und ebenso das Vattel’sche Werke eine Philosophie des Völkerrechts und doch in gewisser Weise positiv, praktisch, weil nämlich doch wieder unphilosophisch, sei, und dass dasselbe wiederum unpraktisch sei, weil es trotz dem philosophisch sein wolle und mit aller Macht zu Abstractionen hindränge. Es sind allerdings in beiden Schriften die Völkerrechtsverhältnisse in ihrem positiven Wesen nicht ganz verleugnet; nur sind alle darin abgehandelten positiven Materien nicht in ihrer lebendigen Fülle und Frische, nicht in ihrer positiven Unmittelbarkeit dargelegt, sondern unter dem verzehrenden Hohlspiegel der Wolff’schen Methode zu dürren Gerippen zusammengeschrumpft oder unter dem Filtrirbeutel der Vattel’schen Art aus kräftigen Mineralwasser zu destillirtem, allerdings klaren aber abschmeckenden Wasser verwandelt worden.” Kaltenborn, Kritik des Völkerrechts, p. 85.
Cf. Corbett, “The Individual and World Society,” op. cit, p. 8.
“Such is man’s nature that he is not sufficient unto himself and necessarily stands in need of assistance and intercourse of his fellows, whether to preserve his life or to perfect himself and live as befits a rational animal Therefore, since nature has constituted men thus, it is a clear proof that it means them to live together and mutually to aid and assist one another. From this source we deduce a natural society existing among all men. The general law of this society is that each member should assist the others in all their needs, as far as he can do so without neglecting his duties to himself — a law which all men must obey if they are to live conformably to their nature and to the designs of their common Creator.… It is easy to see how happy the world would be if all men were willing to follow the rule we have just laid down. On the other hand, if each man thinks of himself first and foremost, if he does nothing for others, all will be miserable. Let us labor for the good of all men; they in turn will labor for ours, and we shall build our happiness upon the firmest foundations.” Vattel Introduction par. 10, p. 5. This passage is typical for Vattel’s humanitarian exhortations.
In a note to the passage quoted Vattel even refers to an appropriate place in Cicero’s De Officiis, Vattel, ii 2. 16. 188. note (a.).
The Stoic conception of the “civitas maxima” and of the “citizens of universe” is well reflected in the following passage: “He, then, who understands the administration of the universe, and has learned that the principal and greatest and most comprehensive of all things is this vast system, extending from men to God; and that from him have descended the seeds of being not only to one’s father and grandfather, but to all things that are produced and born on earth; and especially to rational natures, since they alone are qualified to partake of cummunion with the Deity, being linked with him by reason — why should not such a man call himself a citizen of the universe ? Why not a son of God? And why shall he fear anything that happens among men? Shall kinship to Caesar, or any other of the great at Rome, enable a man to live secure, above contempt, and void of all fear whatever; and shall not having God for our maker, and father, and guardian, free us from griefs and fears?” Epictetus Discourses, trans. T. W. Higginson (“Classics Club” ed.; New York: Walter J. Black, 1944), i. 9. 26.
In the opening paragraph of Bk. ii, chapter three, Vattel directly confronts sovereign nation-states with private individuals in their relation to the great society of the human race: Every Nation, every sovereign and independent State, is deserving of honor and respect as having a recognized position in the great society of human race, as being independent of any power on earth, and as possessing, by reason of its numbers a greater importance than belongs to the individual. Vattel ii. 3. 35. 126. The French original, however, is more clear on the point of our discussion: “Toute Nation tout Etat souverain et indépendant mérite de la considération et du respect, parce qu’il figure immédiatement dans la grande Société du Genre-humain, qu’il est indépendant de tout pouvoir sur la Terre, et qu’il est un assemblage d’un grand nombre d’hommes, plus considérable sans-doute qu’aucun individu.” Vol. I of the Classics edition of Vattel, p. 285. From the French original it can be seen that states have not only a “recognized position” but also that they “figurent immédiatement” dans la grande Société du Genre-humain.“ Everybody else, that is the individual men who are the original members of that society are figuring, therefore, only ”médiatement,“ through their own states, and not indepedently on the basis of their rational and social nature.
Besides the expressions like “the great society of the human race,” “natural society existing among all men,” “great Republic,” “natural society established among men in general,” “great society established by nature among all nations,” which all appeared in the quotations referred to on the preceding pages, Vattel employs in addition also terms or phrases like “the nature of the great Society of Nations,” or simply “human society,” ibid iii. 12. 192. 306; also “Nations and sovereigns who live together in the state of nature,” ibid iii. 12. 188. 304. This listing is by no means exhaustive.
“Now, the principles of the necessary Law of Nations are founded directly upon the nature of things [i.e., they emanate directly from the nature of the persons living together in the state of nature], and particularly upon the nature of man and of political society, while the voluntary Law of Nations supposes a further principle, namely the nature of the great society of Nations and of the intercourse which they have with one another. The necessary law prescribes what is of absolute necessity for Nations and what tends naturally to their advancement and their common happiness; the voluntary law tolerates what it is impossible to forbid without causing greater evils.” Vattel iii. 12. 192. 306. Cf. supra, pp. 151–7, for a discussion of collective actions of the society of nations.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 1960 Martinus Nijhoff, The Hague, Netherlands
About this chapter
Cite this chapter
Remec, P.P. (1960). The Position of the Individual in International Law According to Emer de Vattel. In: The Position of the Individual in International Law according to Grotius and Vattel. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-1015-8_4
Download citation
DOI: https://doi.org/10.1007/978-94-015-1015-8_4
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-015-0405-8
Online ISBN: 978-94-015-1015-8
eBook Packages: Springer Book Archive