International Law

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INTERNATIONAL LAW

Tradition has assigned the title "father of international law" to the Dutch scholar, lawyer, and diplomat Hugo Grotius (also known as Huig de Groot; 1583–1645), because his De Iure Belli ac Pacis (On the law of war and peace), which appeared in 1625, was the most extensive treatise on international law and relations yet written. Grotius himself recognized that there already existed a number of treatises dealing with aspects of international law and an extensive body of customary practices regulating relations between states, materials such as the law of the sea, treaties, rules of war, and treatises on the just war written by medieval scholars. These concerned relations among the states of Christian Europe, although there was some interest in the nature of relations between Christian and non-Christian, especially Muslim, societies.

A second source of writing on international law consisted of treatises, papal letters, and royal charters accompanying the European overseas expansion that began in the fifteenth century. Initially, these dealt with the legal basis for European possession of the Atlantic islands, Canaries, Azores, Cape Verde, and Madeira, as well as parts of the African mainland. Subsequently, Columbus's voyages generated even more literature about the legitimacy of European possession of the New World, beginning with three bulls that Pope Alexander VI (1492–1503) issued in 1493. These bulls drew a line of demarcation from pole to pole, dividing the New World between the Portuguese and the Spanish, assigning each monarch responsibility for sending missionaries to preach the Christian Gospel and awarding each ruler a monopoly of trade and contact with the region assigned to him.

The basis for Alexander VI's actions was the concept that all mankind formed a single community and that the pope was the judge of all mankind, judging Christians by canon (church) law, Jews by the Law of Moses, and all other people according to the natural law. The natural law consisted of that part of God's eternal law accessible to all mankind by the use of reason. While the specific terms of that law were rarely spelled out, one important element of it was the right to travel freely in peace. The refusal of an infidel society to allow Christian missionaries to enter and preach was therefore a violation of the natural law. The pope could authorize Christian rulers to protect missionaries where necessary, justifying the conquest of infidel societies. The papal conception of an international legal order was a hierarchical one with the pope serving as the ultimate judge in matters of international relations. The most extensive discussion of the Catholic conception of international order was that of the Spanish Dominican theologian Francisco de Vitoria (c. 1485–1546), whose Relectio de Indiis (published 1557; Concerning the American Indians) analyzed all of the arguments for and against the legitimacy of the conquest of the Americas. Vitoria was, however, only one of a number of Spanish authors who responded to the discovery of the New World with a treatise on the legal issues involved.

The Protestant Reformation changed the character of the discussion about international law because the Reformers rejected the papacy and canon law. Furthermore, Protestant scholars distinguished more clearly than did their Catholic counterparts between theological bases for international law and relations and legal ones based on human reason and experience alone. Early Protestant writers included Alberico Gentili (1552–1608), an Italian scholar who eventually became a professor at Oxford, whose De Iure Belli (Concerning the law of war) was a major influence on Grotius's work.

One fundamental difference between Catholic and Protestant writers concerned access to the sea and therefore access to trade between Europe and the New World. The Catholic position was that the pope had the right to judge all mankind, to punish violators of the natural law, to assign jurisdiction over the seas to specific Christian rulers in order to ensure peace among Christian nations, and to support the church's spiritual mission to the newly encountered peoples. Grotius's first work, the anonymously published Mare Liberum (1609; The freedom of the sea), denied that the pope or anyone else had the right to limit access to the sea. In his opinion the sea was open to all who would sail there in peace. Grotius defended the interests of Dutch merchants whose wealth depended upon access to the markets of Asia and America, restricted by papal decision to the Spanish and Portuguese and those whom these nations chose to license, as well as the interests of Dutch fishermen who desired access to the fishing grounds in the waters adjacent to Britain.

Grotius's views drew responses from Portuguese and English lawyers, who defended closing the sea, although they differed about who could do this. The Portuguese scholar Seraphinus de Freitas (d. 1622) wrote the De Justo Imperio Lusitanorum Asiatico (1625; Concerning the legitimate Portuguese Empire in Asia) defending Portugal's claim to a monopoly of trade with Asia based on papal authorization. William Welwood (1578–1622) and John Selden (1584–1654) wrote to defend the right of James I of England (ruled 1603–1625) to ban Dutch fishermen from the waters around the British Isles without royal license. They argued that any ruler could limit access to the adjacent waters but denied that the pope could do so universally. Eventually, European governments agreed that states possessed jurisdiction only over a zone extending three miles from the shore, a line that Cornelius Bynkershoek (1673–1743) defined as the distance that a cannon could fire.

Grotius's major work, On the Law of War and Peace, followed the medieval tradition of seeing mankind as a single community governed by natural law. Grotius did not base his discussion of natural law on theology or philosophy but on the actual practice of human societies as described in the historical record. Thus, while the overall principles of international law sprang from the jus naturale (natural law), there was also a body of specific practices and customs agreed upon by participating nations forming the jus gentium, the law of nations. These two laws formed the basis for a legal structure that would regulate relations among states.

Unlike his predecessors, who saw the papal court as the ultimate venue for settling international disputes, Grotius did not describe any institutions to enforce these laws. He saw each state as sovereign, that is, not subject to any external authority. He also argued, however, that it might be necessary for one state to punish the rulers of another sovereign state because they had violated the natural law. While this would seem to make Grotius a defender of expansion into the New World, in fact he showed little interest in that issue. His interest was in relations among European Christian states, not relations between the Christian and the non-Christian worlds.

The writers on international law who followed Grotius fall into two broad categories. The first continued to employ the term natural law but understood the term differently than Grotius. They argued that the natural law described the law that governed men when they lived in the state of nature, that is, before the formation of organized societies. They identified these societies with individuals living in a state of nature so that each human society was therefore a sovereign entity equal to all other societies, just as each man, regardless of age, strength, and intellect, was equal to every other man. There was then no basis for one society punishing another's violation of the law of nature. This school of thought included Samuel Pufendorf (1632–1694) and Emerich de Vattel (1714–1769).

The second school of international law thinkers was the positivists, who argued that international law was the product of custom and of treaties that states made with one another for the purpose of regulating their relations. This school of thought included Cornelius van Bynkershoek.

These discussions had a limited effect on the practice of European states. The flaw in such discussions was the lack of any external mechanism to enforce the law. What these works did was provide a conceptual framework and a language for creating a legal order among states. Unlike Grotius and his medieval predecessors, however, later proponents of international order restricted it to the European Christian states and did not include non-European states.

These early discussions of international law had one other effect on European thought. The Catholic writers were concerned about the relations between Christian and non-Christian societies. Was the conquest of the New World legitimate? Did the inhabitants of the Americas possess a right to govern themselves and to own property? If so, Europeans had no obvious right to conquer them. Although European thinkers did produce arguments that justified the conquest, arguing that the Indians violated the natural law, for example, they also produced arguments that defended the rights of the Indians to autonomy as well. According to these arguments, Christians could not assert a claim to all infidel lands simply on the grounds that infidels had no right to them. This became one of the bases for subsequent discussions of human rights, that is, the rights possessed by all people by virtue of their humanity.

In the final analysis, the discussion of international law in the early modern world consisted of attempts to create a legal order that would regulate relations among the various states and societies of the world. The goal was to limit, not to abolish, war and to create a framework for peaceful relations among peoples.

See also Grotius, Hugo ; Natural Law ; Rights, Natural .