Vattel, Emer de
Vattel, Emer de
Emer de Vattel (1714-1767) was a Swiss diplomat and legal scholar who is remembered primarily for his great work, Le droit des gens: Ou, principes de la loi naturelle (1758). The book took many years to write: Vattel gave to it the considerable free time that his position as minister-representative of the king of Saxony to the Republic of Bern permitted him. In the years during which he was writing his book he suffered severe financial deprivation—the difficult financial situation of Saxony prior to the Seven Years’ War meant that even the niggardly salary promised him arrived with great delays—and he received scant appreciation in the academic world. Only after his book was published did he receive attention from both statesmen and scholars.
From the very outset Le droit des gens occasioned the most divergent scholarly appraisals. In 1785, D. H. L. von Ompteda asserted, as many others did subsequently, that Vattel was merely a loyal follower of his great predecessor, Christian Wolff. Ompteda claimed that Vattel had “carefully followed” Wolff not only in his arrangement of the work “but also in his train of thought.” The only positive achievement he credited to Vattel was to have presented “in a pleasant, natural style” the theorems that Wolff had stated in “dry, mathematical form,” so that Vattel’s book is “almost the only existing work on the natural law of nations that is suitable for statesmen and persons not in the learned professions …and this is undoubtedly his great service to the science of international law” (1785, pp. 345-346). Ompteda was damning Vattel with faint praise, impugning not only his originality but also (and again like many others) his profundity. Another frequent criticism —that Vattel’s statements lack concreteness—is also found first in Ompteda. Much more serious, however, is the charge that Vattel abandoned the Grotian tradition, that he gave Grotius the “kiss of Judas” (see, for example, Vollenhoven  1919, pp. 26 ff.). This charge is based on the supposition that the salience that Vattel gave to the concept of sovereignty means that he denied order in the law of nations. [See the biography of Grotius.]
Vattel has, of course, also had many enthusiastic adherents; typically, they have been statesmen, diplomats, and arbitrators, rather than scholars. Thus, a few months before the proclamation of the Declaration of Independence, Benjamin Franklin wrote to Charles W. F. Dumas, the Swiss who had brought him the 1775 edition of Vattel’s book: “It [the book] came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations” (Franklin [1773-1776] 1906, p. 432). References to Vattel’s doctrines were particularly numerous in arbitration verdicts and diplomatic notes at a time when arbitration was in its infancy. Vattel found particular favor in the decisions of American courts, because his view of the nature of international relations accorded with the concepts of the young American republic, jealous as it was of its sovereign rights (Dickinson 1932, p. 259, fn. 132).
This is not to say that Vattel has received no appreciation in the scholarly literature of international law; however, his work has been recognized primarily but not exclusively by authors who emphasize the needs of political practice (e.g., Mohl [1855-1858] 1960, vol. 1, p. 386).
The social order . Vattel’s point of departure may be found in the seventeenth century’s philosophy of society, or, more particularly, in the general concern with the transformation of the so-called state of nature into that social life which is subject to an order based on positive law. He was content to deduce the drives that underlie organized society—for example, sociability, self-preservation, or the pursuit of happiness—from an abstract, ahistorical conception of human nature. More central for him was the problem of the relationship and the obligation of the social order to the divine will.
For Vattel, as for his teacher Wolff, the concept of what is just, or honorable, is founded upon what is utilitarian, this being the natural motive of all human actions. There can be no other basis for the observance of rules of behavior among men, since both man’s social nature and his personal happiness require that conduct be so motivated. But this is a “noble utility,” one that serves the perfecting of man’s soul, his body, and his well-being; there is, therefore, no contradiction between the utilitarian and the honorable, but rather an identity (1747, pp. 21 ff.). The divine will is not the immediate foundation of human morality, as it is in the work of earlier philosophers such as Samuel von Pufendorf and Jean Barbeyrac, but serves rather to reinforce moral obligation founded upon utility. Unlike his predecessors, Vattel saw no contradiction between natural law and positive (or political) law, but instead believed the two to be in agreement (1747, p. 89). [See Natural law.]
The state . Vattel attributed a central position to the sovereign state and defined it in a manner that anticipates the modern definition of the state, as well as its application in international relations: “Every Nation which governs itself, under whatever form, and which does not depend on any other Nation is a sovereign State" (1758, book 1, chapter 1, par. 4). [See State.]
The state had only recently been conceived as a single personality—most notably by Hobbes—so that in Vattel’s time an exposition of political organizations and, especially, of forms of government (this had polemical overtones) seemed necessary, even in connection with a doctrine of the law of nations that was presumably independent of forms of internal government. Probably no other writer before Rousseau drew such far-reaching conclusions from the doctrine of the social contract, supporting the sovereignty of the people as derived from the primordial contract between parties, as against the sovereignty of princes. Democracy is the primordial form of government; the function of princes is merely a derivative one (1758, book 1, pars. 3, 4, 13, 38, 39; Jellinek  1960, pp. 513 ff.). Rulers who misuse the power entrusted to them should be removed; but this right is reserved to the nation as a whole. [See Social contract.]
Vattel’s acceptance of the dogma of popular sovereignty and of the far-reaching corollaries deduced therefrom does not mean that he was a revolutionary; characteristically, his bold theoretical stand was hedged by practical reservations along the lines of traditional concepts. For instance, having defined princes as subject to the constitution and the law, he then raised them above such restriction and even endowed them with divine properties.
International law . Wolff may be considered the first to have transformed the principles of natural law, making them applicable to international law, although elements of this view—without which it was impossible to establish systematically an independent branch of law—are to be found in Barbeyrac. In the Preface to his book on international law, Vattel gave due credit to Wolff (in fact, he had originally intended merely to translate Wolff’s book on the law of nations). Thus, in describing what a work on international law should be, Vattel followed Wolff when he wrote: “Such a treatise, as we have remarked before, should consist principally in applying with judgement and discretion the principles of the natural law to the conduct and the affairs of Nations and of sovereigns” (1758, preface).
This transformation of the natural law required that states be recognized as legal entities independent of individuals (see Gierke 1913, p. 357; Meinecke  1962, pp. 224 ff.) and that there be developed a special theory of the origin of international law. Long before Vattel, sovereign nations were considered to be free, in practice, to disregard in their external interrelationships the norms of natural law that were binding within the state; this they might do by either explicit or tacit consensus. But only in Vattel, following Wolff, did the natural law of nations, like the arbitrary, positive law of nations, achieve its own systematic unity as a special branch of moral philosophy and jurisprudence. In his polemic against Grotius, Vattel presented this conception of international law:
If with his idea that political societies or Nations live together in mutual interdependence in the state of nature, and that as political bodies they are subject to the Law of Nature, Grotius had considered, in addition, that the law ought to be applied to these new subjects according to their nature, this thoughtful writer would have easily perceived that the natural Law of Nations is a special science; that it gives rise among Nations even to an exterior obligation independent of their will, and that the consent of Nations is the foundation and the source only of that particular division of the Law of Nations which is called the “arbitrary Law of Nations.” (1758, preface)
Having thus established the basis for a systematic doctrine of autonomous sources of international law, Vattel came to his celebrated definition of the subject: “Le droit des gens est la science du droit qui a lieu entre les nations ou Etats et des obligations qui repondent a ce droit” ("The law of nations is the science of the law that operates among nations or states, and of the obligations that conform to that law” 1758, volume 3, book 1, par. 3). But for all that Vattel was concerned with the autonomous sources of international law, his system, in effect, accorded such far-reaching powers to the sovereign states that the precepts and prohibitions of natural law lost even more of their practical value than they had lost already. For Vattel the norms of natural law were supplanted by treaties based upon the will of the sovereign states and by tradition. His view thus paved the way for a positive theory of an international law based upon the common will of nations, which triumphed in the second half of the nineteenth century.
Vattel’s work covered nearly all the problems of international law: acquisition of territory, boundaries, right of intervention, rights of aliens, validity and interpretation of treaties, peaceful settlement of disputes, and laws of war and neutrality. Although he may have lacked originality, he undoubtedly had common sense. In any case, his importance derives from his ability to recognize the highly controversial problems at the core of international relations and to define his position on them. This quality, together with his “pleasant, natural style,” permitted him to communicate with and to influence those responsible for handling international affairs.
Vattel’s systematic exposition of international law has borne his name throughout the world. Translated into many languages, his work affected the practice of international law for decades, even for centuries. Finally, Vattel owes his success to the fact that in his endeavors to perceive the foundations of international law he never lost sight of the proper aim of international settlements: the realization of an order based on freedom and in accord with the principles of humanity.
1747 Le loisir philosophique: Ou, pieces diverses de philosophic, de morale et d’amusement. Geneva: No publisher given.
(1758) 1916 Le droit des gens: Ou, principes de la loi naturelle appliques a la conduite et aux affaires des nations et des souverains. 3 vols. Washington: Carnegie Institution of Washington. → Translated into German in 1959; see the introduction by Paul Guggenheim. Volume 3 was translated into English in 1916 as The Law of Nations.... It was reprinted in 1964 by Oceana; all the extracts are from the 1964 edition, except for the translation of Vattel’s famous definition, which was provided by the editors. See especially the introduction to the 1916 edition by Albert G. de Lapradelle.
BÉguelin, Edouard 1929 En souvenir de Vattel. Neuchatel, Universite de, Faculte de Droit, Recueil de travaux: 33-176.
Dickinson, Edwin 1932 Changing Concepts and the Doctrine of Incorporation. American Journal of International Law 26:239-260.
Gierke, Otto Von (1913)1954 Das deutsche Genossen-schaftsrecht. Volume 4: Die Staats- und Korporationslehre der Neuzeit. Graz (Austria): Akademische Druck- und Verlagsanstalt.
Guggenheim, Paul 1956 Enter de Vattel et I’etude des relations Internationales en Suisse. Geneve, Universite de, Faculte de Droit, Memoires, 10. Geneva: Georg.
Jellinek, Georg (1900) 1960 Allgemeine Staatslehre. 3d ed., rev. & enl. Bad Homburg (Germany): Centner.
Meinecke, Friedrich (1924) 1962 Machiavellism: The Doctrine of Raison d’etat and Its Place in Modern History. New York: Praeger. → First published as Die Idee der Staatsräson in der neueren Geschichte.
Mohl, Robert Von (1855-1858) 1960 Die Geschichte und Literatur der Staatswissenschaften in Monographien dargestellt. 3 vols. Graz (Austria): Akademische Druck- und Verlagsanstalt.
Ompteda, Dietrich H. L. Von 1785 Litteratur des gesammten sowohl natiirlichen als positiven Volkerrechts. 2 vols. in 1. Regensburg (Germany): Montag. → The translation of the extract in the text was provided by Paul Guggenheim.
Reeves, Jesse R. 1909 The Influence of the Law of Nature Upon International Law in the United States. American Journal of International Law 3:547-561.
Reibstein, Ernst 1958 Volkerrecht: Eine Geschichte seiner Ideen in Lehre und Praxis. Volume 1: Von der Antike bis zur Aufklarung. Freiburg (Germany): Alber.
Remec, Peter P. 1960 The Position of the Individual in International Law According to Grotius and Vattel. The Hague: Nijhoff.
Staub, Hans 1922 Die volkerrechtlichen Lehren Vattels im Lichte der naturrechtlichen Doktrin: Ein Beitrag zur Grundsgeschichte des Volkerrechts. Berlin: Vahlen.
Thevenaz, Henri 1957 Vattel: Ou la destinee d’un livre. Annuaire suisse de droit international 14:9-16.
Vollenhoven, Cornelis Von (1918) 1919 Three Stages in the Evolution of the Law of Nations. The Hague: Nijhoff. → First published in Dutch.