CHAPTER

2.

Developmen
t of Law
Among
Nations

YDEVELOPMENT OF INTERNATIONAL LA W
Pre-Greek
Civilization
International
2 PART
I The Law
of Nations

law as we know it today is a product of

Western civilization. Its true existence covers only the past 300 to 500 years,
but its roots extend into the distant past. Some have attempted to link the
modern law with the customs and usages of pre-Greek civilizations, but it now
appears that our present law cannot claim such an impressive genealogy. It is
true that even the earliest documents describing relations between states
contain evidence of rules and procedures found in modern international law.
For instance, a treaty concluded in the very dawn of recorded history, about
3100 B.C., between the rulers of two Mesopotamian communities (Lagash and
Umma) provided for the settlement of a boundary dispute through arbitration,
with solemn oaths for the observance of the agreement. Any examination of
Hebrew, Assyrian, Babylonian, Hindu, and early Chinese records in the fields
of warfare and diplomacy reveals2 many customs and usages that are still part
of the practices of modern states.
'See
Henkin, 1.
2
See Nussbaum, 1-5; Lauterpachts Oppenheim, I, 72, and the excellent study by Russell,
Theories ofInternational Relations (1936), chaps.

This should not lead one to assume, however, that the modern law can be
traced directly to those early civilizations. In the world of antiquity, our own
concept of a community of nations was utterly lacking. The interests of each unit
were local, not international. Although it was true that relations with
neighboring countries could not be avoided, the consciousness of a community of
mankind fundamental to the creation of a true system of international law
was absent, except among some of the Greek philosophers.
Greek Civilization Even the Greek civilization, great though its achievements were in
many spheres, did not contribute much to the development of modern international law. There were common bonds of race, culture, language, and
religion, as well as a distinct feeling of enmity toward all non-Greeks (the
barbarians), but on the other hand, the well-known passion of the Greeks for
local independence appears to have outweighed the common links among the
Greek city-states and their numerous colonies around the shores of the
Mediterranean. Relations between the Greek states were based on a feeling of
kinship and on convenience, rather than on the concept of a community of states.
Development of Roman Law In contrast with the Greek civilization, ancient Rome
contributed immensely to the development of Western law as such and, indirectly, to the subsequent appearance of international law.
Roman legal writers defined two kinds of law in another manner: in philosophical discussions of the law, they characterized as jus civile the law that each
country created for itself, whereasj.v gentium referred to a body of law
established among all men by reason, based on ideas or ideals of justice and
observed by all countries. It thus represented the common basis on which the
laws of civilized societies were based.
It was this second interpretation of tht jus gentium that was preserved among
the legal thinkers of the Middle Ages, with increasing emphasis on the existence
of a universal law applicable to all states. On the other hand, the medieval period
lacked the conditions under which a system akin to modern international law
could exist.
Still later, in the seventeenth century, the term jus gentium became
specialized in its meaning and referred to the principles assumed to prevail in the
relations between independent states, was translated as law of nations ( droit
des gens) by Vattel in 1758, and became international law through its use in

that form by the Englishman Jeremy Bentham in 1780. Bentham followed the
Latin title of an earlier work by Richard Zouche (1650), who had written about
juris inter gentes, law among nations.
CHAPTER
Development
theits name
The development of modern international law
and2 the
derivationof of
were complicated further by the existence of the concept of the law of nature
Law
(jus naturale), adopted about 150 b.c. by Roman
philosophers from Greek 3Stoic
thinkers. The law of nature, later termed natural law, was believed to have been
naturally implanted in men and to comprehend unchangeable and exact justice,
universal in scope and self-evident to any individual exercising his right
reason, or the moral faculty with which he was endowed.
The fall of the Roman Empire was followed by a period of instability, an era
in history singularly unfavorable to the observance of a presumed universal law.
Contrary to a widespread belief, the medieval period did contain some of
the seeds of the future international law as well as of our modern
sovereign nations. First and foremost among integrating factors was the
Catholic Church. At first, the important element was the existence of a
single religion, increasingly centralized administratively and developing a
common law (canon law) for its members, irrespective of race,
nationality, or location. Ecclesiastical law, as it evolved during the
medieval period, influenced many areas regarded today as lying within the
sphere of international law: the conclusion of treaties and their
observance, authority over territory, the right of conquest with the
sanction of the Church, papal activity in arbitration and the general
emphasis in canon law on arbitration as a desirable method for settling
disputes, and, above all, regulations concerning many facets of warfare.
Few chapters in Western intellectual history are more fascinating than the
repeated attempts on the part of the Church to eliminate private war and
to mitigate the evils of legitimate international conflict.
The germination of the seeds of international law
traditionally took place in the sixteenth century, even though the
decentralization of the res publica christiana of Europe, the true beginning
of the law, came somewhat earlier. The rise of Protestantism not only
destroyed the traditional unity of Christendom but also made papal
arbitration of secular disputes unacceptable to Protestant rulers. The
outstanding event of the century was the emergence of the national state,
first in England, France, and Spain. A growing number of writers began
to debate national and international questions, and a goodly proportion of
those questions related direcdy to the sphere of international law.
The remainder of this chapter will briefly summarize a few of the
outstanding writers of this and the succeeding centuries. Limitations of
space prevent the inclusion of many authors famous in the history of
international law, such as Pierino Belli and Balthasar Ayala on the laws
of war; Samuel Rachel on positive law; Martin Huebner and the Abbe
Galliani on the laws of neutrality; Christian Wolff, the great teacher of
Vattel; and Georg von Martens
on the natural rights of states and on cer3
tain aspects of positive law.
Beginning of International Law

WRITERS OF THE LA W

(1480-1546) Vitoria was a well-known Dominican

professor of theology at the Spanish University of Salamanca. Two of his
works, De Indis and The Law of War Made by the Spaniards on the
Barbarians (1532), relate particularly to international law. Vitoria
Francisco De Vitoria

emphasized the question of what made a war a just one and examined the
bases of Spanish authority in the Americas, particularly in regard to
relations
4 PARTI Thebetween
Law of Indians
Nations and Spaniards.

CHAPTER

2 Development of the

Contrary to a widespread belief,

Law the medieval period did
25
contain some of the seeds of the future international law
as well as of our modern sovereign nations. First and
foremost among integrating factors was the Catholic
Church. At first, the important element was the existence
of a single religion, increasingly centralized administratively and developing a common law (canon law) for
its members, irrespective of race, nationality, or location.
Ecclesiastical law, as it evolved during the medieval
period, influenced many areas regarded today as lying
within the sphere of international law: the conclusion of
treaties and their observance, authority over territory, the
right of conquest with the sanction of the Church, papal
activity in arbitration and the general emphasis in canon
law on arbitration as a desirable method for settling
disputes, and, above all, regulations concerning many
facets of warfare. Few chapters in Western intellectual
history are more fascinating than the repeated attempts
on the part of the Church to eliminate private war and to
mitigate the evils of legitimate international conflict.
The germination of the seeds of
international law traditionally took place in the sixteenth
century, even though the decentralization of the res
publica christiana of Europe, the true beginning of the
law, came somewhat earlier. The rise of Protestantism
not only destroyed the traditional unity of Christendom
but also made papal arbitration of secular disputes
unacceptable to Protestant rulers. The outstanding event
of the century was the emergence of the national state,
first in England, France, and Spain. A growing number
of writers began to debate national and international
questions, and a goodly proportion of those questions
related directly to the sphere of international law.
The remainder of this chapter will briefly summarize
a few of the outstanding writers of this and the
succeeding centuries. Limitations of space prevent the
inclusion of many authors famous in the history of
international law, such as Pierino Belli and Balthasar
Ayala on the laws of war; Samuel Rachel on positive
law; Martin Huebner and the Abbe Galliani on the laws
of neutrality; Christian Wolff, the great teacher of Vattel;
and Georg von Martens on the natural
rights of states
6
and on certain aspects of positive law.
Beginning of International Law

6Fortunately for the serious student, virtually all the classics in international law
are available in the famous Classics of International Law (Washington, D.C.:U.S.
Government Printing Office, v.d.). Summaries of the most important writers are

26PARTI The Law of

Nations
WRITERS

OF THE LA W

(1480-1546) Vitoria was a well-known

Dominican professor of theology at the Spanish
University of Salamanca. Two of his works, De Indis
and The Law of War Made by the Spaniards on the
Barbarians (1532), relate particularly to international
law. Vitoria emphasized the question of what made a
war a just one and examined the bases of Spanish
authority in the Americas, particularly in regard to
relations between Indians and Spaniards.
Starting with the premise that the Indians were the true
owners of their lands and goods before the arrival of the
Spaniards, Vitoria argued that imperial claims to world
domination were invalid; that all men were free under the law
of nature; that the pope was neither the civil nor the spiritual
overlord of the world, nor could he claim to be the spiritual
lord of nonbelievers; and that war could not be waged against
the Indians simply because they refused to acknowledge papal
claims to such lordship. And according to Vitoria, the mere
discovery of Indian lands by Spain did not confer a valid title,
inasmuch as only land without an owner (res nul- lius) could be
claimed through discovery.
Certain claims supporting warfare and conquest in the
Americas were upheld by Vitoria with a wealth of theological
reasoning, and it is in this section of his works that there are so
many fascinating speculations. He held that the Spaniards
enjoyed certain rights under natural law and the jus gentium,
including the right to travel and to carry on trade with natives
provided they did not injure the latter. If those rights were
denied to visitors, then the latter had been injured, and a resulting war waged against the Indian populations in question
represented a just war.
Such speculations naturally led Vitoria to investigate the
rules of war themselves. For the first time in Western literature
(excluding limited hints in Machia- vellis writings), one
encounters here the terms offensive war and defensive war, and
although Vitoria did not spend much time on the subject, he did
point out that offensive (aggressive) wars were not to be
condemned out of hand, for they might be based on just causes.
Vitorias discussion of the rules of warfare reflects, almost
by necessity, the barbarism and cruelty of his own age; yet the
general tone of his remarks is humane and well in advance of
the thinking and the practices of his time.
FRANCISCO DE VITORIA

found in Nussbaum and in Lauterpachts Oppenheim, I, 85. Much material on

selected writers, such as Vitoria and Grotius, may also be found in standard
histories of Western political thought, particularly in the writings of Dunning.

CHAPTER

2 Development of the

(1548-1617) AnotherLaw
early Spanish writer on the
27
subject of international law was Francisco Suarez, a professor of
theology at the university of Coimbra. In his famous Treatise
on Laws and God as Legislator (1612), he held that thtjus
gentium was different in kind from natural law, was in fact a
body of law applying between independent states rather than
one common to all states, and furthermore represented a body
of rules voluntarily instituted by men. Although countries were
independent, Suarez argued, they were never wholly relieved of
some interrelationship among them, were in some measure
dependent on one another, and therefore required a body of
rules to govern their relations. It is thus with Suarez that one
first encounters the modern concept of a society or community
of sovereign states, tied together by a body of law applying to
their mutual relations.
Huigh Cornets DE Groot (1583-1645) Better known as Hugo Grotius,
de Groot
is generally accepted as the father of international
5
law. His interest in the subject developed through an unusual
and 4important case. During the war against
Francisco Suarez

Nussbaum, 80.
See id., 102, and Lauterpachts Oppenheim, vol. I, 91. The two major
works of Grotius are available in English: The Law of War and Peace, Kelsey et
al., trans. (1925); and The Freedom of the Seas, Magoffin, trans. (1916).
s

Spain, a fleet of the Dutch East India Company captured a

Portuguese vessel in 1601. The ship was brought, with its
cargo, to Holland and sold as a prize of war, Portugal then
being under Spanish domination. Oddly enough, some
stockholders in the company objected to the highly profitable
transaction, claiming that Christians should not wage war,
certainly not on one another. The company retained Grotius,
requesting an opinion on the objections raised, and thd young
lawyer fulfilled his assignment by writing an essay, Dejure
Praedae Commentarius (Commentary on the Law of Prize and
Booty), in 16041605. Most of this work remained in
manuscript form and was discovered only in 1864; the twelfth
chapter, how'ever, was revised and published in 1609 under the
title Mare Liberum (The Freedom of the Seas),7 an illuminating
study of the doctrine of the freedom of the seas.
Grotius wrote his greatest work, Dejure Belli ac Pads Libri
Tres (Three Books on the Law of War and Peace), the first
systematic treatment of positive international law, in 1625, in
7The complete work was made available in English for the first time in 1950 as
the final number of the Classics of International Law (2 vols., London). The
Commentary is characterized by an unusual emphasis on the rights of the
individual under natural law, an emphasis said to be unequaled again in the
literature of international law until very recently. A good summary may be found
in Current History, October 1951, 225-26.

28PARTI The Law of

France. Despite its title, the work dealt only incidentally with
Nations

the law of peace, and most of it was concentrated, as in the

case of most of his predecessors, on war. Nevertheless the
portions of the book dealing with peace (Bk. II, chaps. 1-19)
filled with elaborate rules of national conduct based on the
Scriptures, ancient history, and the classicsrepresented a
unique contribution to the law and, in addition, a decided
innovation in the works on the subject.
With respect to the laws of warfare, Grotius leaned heavily
toward the Scholastic writers, with frequent citations,
particularly from the works of Vitoria. In discussing the nature
of the traditional jus gentium, however, Grotius went to
considerable lengths to explain that it represented, in his
opinion, law both human (that is, not divine in origin) and
volitional, a body of rules deliberately created by human beings
to serve human needs.
It was Grotiuss distinction between a natural law of
nations, as developed by him, and the customary or voluntary
law, expounded by Zouche, that was the direct cause of the rise
of three separate schools of legal philosophy in the seventeenth
and eighteenth centuries: the Naturalists, the Positivists, and the
Grotians. The Naturalists, led by Samuel Pufendorf, denied that
any positive law of nations originated from custom or treaties;
they maintained, with Thomas Hobbes, that international law
was merely a part of the law of nature.
The Positivists, in turn, opposed the followers of Pufendorf
in believing that a positive law of nations had its true origin in
custom and treaties, hence in the consent of states, and that this
law was far more important than any natural law of nations.
Some of the writers of this school went so far as to deny the
very existence of a law of nature. The leading positivist was the
famous Dutch jurist Cornelius van Bynkershoek.
The Grotians held to a middle position in the controversy,
asserting that Grotius himself had drawn tenable distinctions
between natural and voluntary law.
But they differed from the founder in insisting that both kinds
of law were equally important.
It should be pointed out that since the seventeenth century
there has developed a strong shift from an emphasis on natural
law to the concepts of positive law.
Virtually all forerunners of Grotius had limited their learned
discussions of war, both just and unjust, to the beginning of a
conflict. Thus Grotius opened a vast new area for speculation
and debate when he included in his work a detailed discussion
of the conduct of military operations and their legal
consequences and considerations. With insight, tolerance, and an
eloquent use of examples borrowed from the past, he urged

CHAPTER

2 Development of the

moderation in warfare and discussed

the status and fate of hosLaw
29
tages, the destruction of property, the problem of the defeated
peoples religious beliefs, and a host of other questions ignored
or evaded by his predecessors. He did not believe that this
particular portion of the Law of War and Peace represented a
collection of legally binding principles; rather, he saw his
discussion of the conduct of hostilities as a form of personal
advice to statesmen and military commanders. It is a tribute to
the essential goodness of human nature that even his early
readers and critics regarded this section of the work as one of
the most admirable contributions made by Grotius. But the basic
doctrine of a just war has now been discredited by the inclusion
of Article 2(4) in the Charter of the United Nations.
The writings of Grotius also contributed much new and
original thought on a great number of specific topics,
particularly those of neutrality, freedom of the seas, treaties, and
diplomatic practice. Neutrality did exist in fact, though much
hampered, in his own time, but his was the first analysis of the
legal status, rights, privileges, and duties of a neutral state.
Considering the time in which his contribution was composed, it
is not strange that belligerents received far more favorable
treatment at his hands than did neutral nations. In regard to the
high seas, Grotius was the first writer to proclaim the concept
of the freedom of the worlds oceans and to attack with energy
and learning the monopolistic claims of his own era to
navigation and fishing privileges.
Treaties appeared in his books as distinct from normal
contracts and, furthermore, as binding, in general, on the
successors of a ruler who had been an original party to the
agreement in question. Grotius, as could be expected, upheld
good faith and the sanctity of international pacts but apparently
could not bring himself to deny the old claim that a treaty was
null and void when the conditions prevailing at the time of its
conclusion had changed substantially. So he compromised,
accepted the voidance of a treaty specifically made in
contemplation of a continuation of existing conditions, and
finally went so far as to admit that if a state found further
observance of an agreement too grave and unbearable, it
would be freed of its obligation.
One rather novel aspect of the concept of lawful or just war
of Grotius is the question of war as a punitive measure. Earlier
writers had maintained that only superiors were entitled to
inflict punishment. Grotius, on the other hand, believed that
equals could also inflict penalties or sanctions. He regarded war
as a punitive action aimed against state crimes, analogous to the
domestic punishment of crimes committed by individuals (see
Law of War and Peace, Bk. II, chap 20). Sovereigns were thus

30PARTI The Law of

held to be able lawfully to exact punishment, not only for

Nations

injuries sustained by them or their subjects, but also in respect

to acts that constituted, with regard to any person whatsoever, a
violation of the law of nature or international law. This right of
punishment originated in the law of nature, according to
Grotius. The modern reader will find in the relevant pages of
Grotius strong echoes of the demands voiced during World War
II for the punishment of war criminals. In fact, the following
chapter (Bk. 11, chap. 21) contains a striking passage to the
effect that subjects made themselves responsible for crime of
their sovereign if they consented to it or acted illegally under
his persuasion or command. Thus Grotius would have denied
that one could escape just punishment for war crimes by pleading the defense of superior orders.
Samuel Pufendorf (1632-1694) Pufendorf was the worlds first
professor of international law. However, scholars still disagree,
in a surprisingly voluminous literature, as to whether he
contributed much or little to the growth of the law, beyond
being the founder of the so-called naturalist school of legal
philosophy.
Pufendorf developed a new system of jurisprudence of his
own, which he eventually published in 1660 under the tide
Two Books on the Elements of Universal Jurisprudence. The
work attracted considerable attention, and in consequence of his
new fame, Pufendorf was appointed to a newly created
professorship of natural and international law at the University
of Heidelberg. In 1670 he went to Sweden to teach at the
University of Lund; there he wrote and published a second
major work,
Eight Books on the Law of Nature and of Nations
8
(1672). The rest of his life was devoted to historical studies,
first at Stockholm and later at Berlin.
The
Elements
summarized
Pufendorfs
essential
contributions to international law. As did the majority of
thinkers of his age, Pufendorf implicitly believed in the
existence of a state of nature antedating the historical state and
held that in this prepolitical situation a law of nature was
binding on all men. Only this law, rather than the consent of
states, could establish legally binding principles and hence had
to be regarded as the sole source of international law. His
concept of the law of nature embraced those standards of
behavior that experience and reason (the latter growing out of
both experience and instruction) showed men, as they grew in
knowledge, to be essential for their own good and for the good

8Both works are available in English; the Elements, Moore, trans. (1927); the
Eight Books, C. H. and W. A. Oldfather, trans. (1931).

CHAPTER

2 Development of the

of human society of which they Law

formed a part in accordance
31
with the design of nature.
CORNELIUS VAN BYNKERSHOEK (1673-1743) A celebrated
Dutch jurist and member (and, from 1724 to his death,
president) of the Supreme Court of Holland, Zeeland, and West
Friesland, Bynkershoek was the leading exponent of the positivist school. Although he never wrote a comprehensive treatise on
the law of nations, he dealt with specific parts of the subject in
a number of well-known works, notably the early Dominion of
the Seas (1702), Jurisdiction over Ambassadors
(1721), and his
9
major work, Questions of Public Law (1737).
Most of Bynkershoeks contributions to the
development of the law were in the rules governing
neutrality, with emphasis on a neutral duty to abstain
from showing any preference to a belligerent, on
blockade, on prize law, and on the subject of treaties in
general. One famous tenet of the Dutch jurist has
become beloved by all historians of international law: he
held that control of territorial waters off a national coast
extended only as far as cannon could carry. This
principle, almost universally accepted shortly after its
formulation, became the basis of the three-mile limit of
territorial waters when the range of coastal artillery
remained fixed, for an appreciable period of time during
the late eighteenth century, at about three nautical miles.
(One such mile equals approximately 1.15 common or
statute miles.)
C. von Wolff. This German philosopher published in 1749
a work entitled Jus Gentium as the ninth and last part of
a major study on natural law. He promoted the concept
of a world state (civitas gentium maxima) possessing
considerable authority over its component member units.
This idea was later rejected by Vattel, even though the
latter supported many other ideas promoted by von
Wolff.
Emmerich De Vattel (1714-1767) A leading early proponent
of the Grotian school of legal philosophy, Vattel was a
native of Switzerland. During most of his adult life he
served in a diplomatic capacity, later as a privy
councilor in charge of foreign affairs, under the Elector
of Saxony. His major work, International Law: Or,
9English versions of the three works are available: the Dominion, Magoffin, trans.
(1923); the risdiction over Ambassadors, Laing, trans. (1939); the Questions,
Frank, trans. (1930).

32PARTI The Law of

Nations

Principles of Natural Law Applied to the Conduct and

Affairs of Nations and of Sovereigns (1758), designed as
a practical manual for statesmen, became the standard
European reference work in international
law and is
10
cited on rare occasions even today. Despite vital
contributions of Grotius, no single writer has exercised
as much direct and lasting influence on those conducting
international affairs in the legal sphere, at least until very
modern times, as did Vattel.
Vattels writings, almost forgotten now except in
France, have been criticized severely by modern legal
historians. Most of the adverse comments center on his
deliberate diminishment of the importance attributed to
natural law, compared with that accorded to voluntary
law, while at the same time lacking any convincing
explanation of the pertinent question, Why should states
feel obliged to observe a voluntary law of nations? This
failure to supply an adequate basis for obedience trapped
Vattel into unfortunate
contradictions and exceptions to
11
dogmatic statements.
Nevertheless, despite theoretical weaknesses, Vattels
work went through edition after edition and was a bestseller among legal commentaries for many decades. It
was a particular favorite in the United States and as late
as 1887 was cited in decisions of the Supreme Court of
the United States.

PROGRESS OF INTERNATIONAL LAW SINCE

1800

International law has progressed far since the days

of the
12
classical writers. As Oppenheim pointed out, three
factors proved to be of particular importance: the
willingness of most states, after the Congress of Vienna, to
submit to the rules of the law; the conclusion of numerous lawmaking treaties during the past 150 years; and the rise of the1
positivist school to a position of predominance in legal thought.
~ By the end of the nineteenth century, most authorities on
international law conceded only the will of nations to be the
source of the law, a view typical of a period in which the
absolute sovereignty of states was affirmed with conviction by
virtually every statesman and publicist.

10The work was translated into English by Fenwick (1916).

11Corbett, 29, supplied some illuminating examples of such flaws in Vattels
reasoning.
12'Tauterpachts Oppenheim, I, 106.

CHAPTER

2 Development of the

The growth of positivist Law

thought had taken place
33
concurrently with the decline of natural law doctrines. As
nationalism prompted state after state to engage in power
politics of the crassest sort, the concept of an international law
based primarily on moral foundations, on principle, retreated and
in its place was substituted the criterion of effectiveness, of is
over ought. Many positivists did not deny the existence of an
order superior to man-made law but denied emphatically that
such an order bore any kind of relationship to legal rules
prevailing in relations among states.
Since the end of World War I, a change in outlook has
been in evidence, and the trend of juristic thinking has veered
away to some extent from a rigid adherence to the traditional
positivist philosophy. Many leading publicists admit today that
when no rule based on actual state practice exists, reference can
and should be made to principles of justice and general
principles of law.
It can scarcely be doubted that moral principles and ethics
play only a relatively minor part in the bulk of modern
international relations and that such parts of international law as
are observed in the regular practices rest essentially on custom
and treaties. Hence the basic element of positivism, the
exclusion of everything not directly traceable to explicit or
implied agreements among states, appears to have considerable
validity, provided that it is related to actual observance and not
expanded into an all-inclusive and static system.
When viewed from this position, international law can be
analyzed and explained in realistic terms and can be shown to
grow and expand in scope even in this age of power politics. At
the same time, a modified positivist approach along the
preceding lines may show the weakness of approaches such as
that taken by the neopositivist school founded by Hans Kelsen.
The latter tried to separate completely the world of actuality and
a world of legal norms. Such a divorce of principles supposedly
establishing the conduct of starts from the political aspirations
and political methods utilized in their individualistic struggle for
survival and power must be condemned as an extremely
unrealistic and scarcely fruitful enterprise,13 except when viewed
as a contribution to pure legal philosophy.
The approach adopted in this volume reflects a modified
positivist point of view, emphasizing the rules of law accepted
in the actual conduct of international relations and based on
customs and treaties as the laws basic sources. It must not be
forgotten, however, that just as the theories underlying the

13 See Kelsen, General Theory of Law and State (1945), and his Principles of
International Law (1952), especially the latter work on 403-47 (a second edition,
revised and edited by Tucker, appeared in 1966).

34PARTI The Law of

nature of the law change, so do the principles and rules that

Nations

comprise that law. International law is, and has been for some
decades, in a state of transition.
It should be noted that the keystone of Soviet legal thought
was the doctrine of national sovereignty, with particular
emphasis on nonintervention in the internal affairs of other
states, in this case, of course, in the affairs of the Soviet Union.
This emphasis may strike observers as incongruous, in view of
the Soviet Unions actual foreign policies, but it was typical of
a society claiming to be revolutionary. Nonintervention would
obviously be based on a double standard as long as the
missionary zeal for world improvement dominated the Soviet
outlook on foreign affairs. Mutuality would then depend entirely
on the revolutionary societys current foreign policy, which, at
all times, would insist that no intervention should be applied to
it.
After World War II, Soviet writers tended to emphasize a
tripartite division in international law: one body of rules was
said to apply to relations between socialist (Communist)
states; another body of rules was held to apply between nonCommunist (bourgeois) states; and a third group of principles
and rules was held to govern relationships between socialist and
bourgeois nations. The last of these groupings was the one that
appeared to be heavily influenced
by the twin concepts of
14
consent and absolute sovereignty. In the late 1950s, Professor
G. I. Tunkin, head of the Department of International Law at
the Moscow State University and probably the foremost
exponent of relevant Soviet legal opinion, differed sharply with
the views of the Soviet legal scholars who believed in the
concurrent existence of three sets of rules of international law.
Tunkin furthermore anticipated that peaceful coexistence
between socialist and nonsocialist states would lead to an effort
to agree on certain specific rules of conduct for states (lawmaking treaties, continued development of customary law, the
UN General Assemblys resolutions, decisions of international
judicial agencies, and so on). In connection with the foregoing,
Tunkin stressed
the absolute acceptance of the existence of state
15
sovereignty.
The key concept developed in the 1960s by Soviet legal
experts is a sort of natural law based on the Marxist-Leninist

14Kulski, The Soviet Interpretation of International Law, 49 AJIL 518, 518

(1955).
15For an abstract of other aspects of Tunkins teachings, see Slywotzskys review
of Tunkins major work in 16 Harvard Int'l Lawjl. 767 (1975); or, preferably,
consult the book itself: Tunkin, Theory of International Law, Butler, trans.
(1974); Mullerson, Sources of International Law: New Tendencies in Soviet
Thinking, 83 AJIL 494 (1989).

CHAPTER

2 Development of the

laws of societal development.LawAccording to this new

35
interpretation, those laws governed the base, which, in turn,
played a determinative role in forming the elements of the
superstructure. The laws thus represented the basis on which
international legal norms were created and established the
boundaries within which the formation of such norms took
place. International legal norms (principles) contradicting or
violating the laws of societal development 16 would, so the
theory asserted, yield to the force of those laws.
Contrary to popular belief, the Soviet Union observed
routinely most of the rules of customary international law as
well as the non-political (technical) agreements concluded
with other states and public international organizations.
Russian acceptance and observance of international law found
their obvious basis in expediency dictated by the need for
coexistence with non-Communist states as well as by the
obvious fact that selected interests of Communist and nonCommunist states did coincide. On the other hand,
international law was also utilized extensively and frequently
for the promotion of the political and ideological aims of the
Soviet state. Propaganda campaigns in Third World nations as
well as in Latin America have centered repeatedly on slogans
based on ideas culled from the principles of international law,
primarily on component parts of sovereignty, such as selfdetermination, nonintervention, and equality.

ESTED READINGS

pment of the Law, General

Bull, Kingsbury, and Roberts (eds.), Hugo Grotius and International

Relations (1990); Carr (ed.), The Political Writings of Samuel
Pufendorf (1994); Janis, The Influence of Religion on the
Development of International Law (1991); Whiteman, I, 131-220;
Murphy, The Grotian Vision of World Order, 76 AJIL 477
(1982).

16See the lucid and authoritative analysis in Ramundo, Peaceful Coexistence:

International Law in the Building of Communism (1967); as well as the brief but
heavily documented study by Quigley, The New Soviet Approach to
International Law, 7 Harvard Intl Law Club J. 1 (Winter 1965); and consult
Whiteman, vol. I, 29.

Fortunately for the serious student, virtually all the classics in

international law are available in the famous Classics of International
Law (Washington, D.C.:U.S. Government Printing Office, v.d.).
Summaries of the most important writers are found in Nussbaum and in
Lauterpachts Oppenheim, I, 85. Much material on selected writers,
such as Vitoria and Grotius, may also be found in standard histories of
Western political thought, particularly in the writings of Dunning.
12
See the valuable study by Humphrey, On the Foundations of International
Law, 19AJIL 231 (1945); Ago, Positive Law and International Law, 51
AJ1L 691 (1957); as well as Whiteman, I, 9.
5