Stephen C. Neff - Justice Among Nations - A History of International Law-Harvard University Press (2014) PDF

Justice among Nations
Justice among Nations

A History of International Law
Stephen C. Neff
Cambridge, Massachusetts
London, England
2014
Copyright © 2014 by the President and Fellows of Harvard College
All rights reserved
Printed in the United States of America
An excerpt from Immanuel Kant, “Theory and Practice,” in Kant, Political

Writings, 2nd ed., ed. Hans Reiss, trans. H. B. Nisbet (Cambridge: Cambridge
University Press, 1991), 91, has been reprinted as an epigraph with the
permission of Cambridge University Press.
Library of Congress Cataloging-in-Publication Data
Neff, Stephen C.
Justice among nations : a history of international law / Stephen C. Neff.
pages cm
Includes bibliographical references and index.
ISBN 978- 0- 674-72529- 4 (alk. paper)
1. International law—History. I. Title.
KZ1242.N44 2014
341—dc23 2013018438
To the fond memory of my father,
John C . N e f f,
who made so many things possible.

I wish he were here.
Contents
Acknowledgments ix
Introduction 1
I
Law and Morality Abroad
(to ca. ad 1550) 5
1. Doing Justice to Others 9

2. Keeping Kings in Check 50
3. New Worlds and Their Challenges 92
II
Reason and Its Rivals
(ca. 1550–1815) 137
4. Putting Nature and Nations Asunder 143

5. Of Spiders and Bees 179
III
A Positive Century
(1815–1914) 215
6. Breaking with the Past 221

7. Dissident Voices 260
8. In Full Flower 298
viii Contents
IV
Between Yesterday and Tomorrow
(1914– ) 341
9. Dreams Born and Shattered 345

10. Building Anew 395
11. Shadows across the Path 439
Conclusion 481
Notes 485
Bibliographic Essay 561
Index 603
Acknowledgments
I am especially grateful for the hospitality of George Washington University

School of Law, where I had the inestimable privilege to be a Visiting Scholar
during the major part of the research for this work, in 2009–10. I am simi-
larly grateful to my own institution, the University of Edinburgh School of
Law, for granting the period of leave. My deepest thanks also go to that most
magnificent resource, the National Library of Scotland.
Immense gratitude for assistance and inspiration of sundry kinds go (al-
phabetically) to the following: Kenneth Anderson, Christine Bell, Alan Boyle,
Douglas Brodie, Stephanie Carvin, Michael and Linda Cosgrove, Steve
Charnowitz, Paul J. du Plessis, Thomas Giegerich, William Gilmore, Peter
Haggenmacher, James Harrison, Susan Karamanian, Carl Landauer, Euan
MacDonald, Linda Mathison, Alexander McCall Smith, Sean Murphy, Cian
O’Driscoll, Dinah Shelton, Frederick Shiels, Ralph Steinhardt, Simonetta Stir-
ling, James Whitman, Arthur Wilmarth, and John Fabian Witt.
A very special thanks goes to Kathleen McDermott at Harvard University
Press, for her unfailing support, and even enthusiasm, for what some might
think a quixotic enterprise. For editorial assistance, my thanks go to Kasey
McCall-Smith. For assistance with German translations, I am particularly
indebted to Simonetta Stirling and Rebecca Zahn, and to Simonetta Stirling
for Italian. For proofreading par excellence (and so much else besides), my
deepest gratitude goes to my wife, Nancy.
Finally, it should be noted that this work is liberally suff used by the spirits
of two great scholars and fine men whose parting is much lamented: Rich-
ard B. Lillich (1933–96) and Daniel J. Boorstin (1914–2004).
Nowhere does human nature appear less admirable than
in the relationships which exist between peoples.
—Immanuel Kant
[J]ust as in one state or province law is introduced by custom,

so among the human race as a whole it was possible for laws
to be introduced by the habitual conduct of nations.
—Francisco Suárez
Introduction
eorge Washington may not have chopped down a cherry tree, but
G recent evidence has uncovered a misdeed of a different, and perhaps
more serious, character: a failure to return two books borrowed from the
New York Society Library in October 1789. Moreover, there is no record of a
gallant confession of wrongdoing. By way of mitigation, it must be admitted
that Washington was a busy man at the time, having recently been installed
as the first president of the United States. When the scandal was exposed (in
2010), the staff at Mount Vernon hastened to make amends by providing
replacement volumes to the library. The affair attracted some public atten-
tion by virtue of the accumulated fi ne for late return—estimated by some at
$300,000. Less notice was taken of what the books were. One was a volume
of British House of Commons debates. The other was a book called The Law
of Nations, by a Swiss writer named Emmerich de Vattel.
It is hard to say which of the two tomes was the livelier read. In the House
of Commons debates, there would have been some of the oratorical flair
characteristic of that eloquent age. But there was flair, too—of an intellec-
tual kind—in Vattel’s treatise. His Law of Nations, written in 1757, had the
distinction of being the first book on international law to be written for a
general audience—if not quite for the person in the street, then at least for
persons concerned with statecraft generally. In marked contrast to anything
that had gone before, Vattel’s book was a literary gem—written in a spar-
kling style, simple and elegant throughout. Vattel, a working diplomat him-
self, explicitly hoped that his exposition would prove useful to men of affairs,
dealing with real-world problems, and not merely to moral philosophers.
2 Introduction
With Washington as one of his readers, he could claim some deserved satis-
faction on this point.
Vattel may have been the first person to bring international law to a large
lay audience. But his subject was very far from new at the time that he wrote.
In terms of practices such as treaty making or the according of certain legal
privileges to envoys, international law extends just about as far backward as
the historical record itself. If, however, we look for something rather more
demanding—such as a systematic corpus of rules governing relations be-
tween states in general—then we must look to somewhat more recent times,
to the first millennium bc and the early centuries of the Christian era. By
any measure, however, the subject is a hoary one.
According to the standard definition, international law is the body of law
governing relations between states. To my way of thinking, though, that is a
rather dry-sounding summation—and hardly adequate either. For one thing,
the idea of a body of law regulating relations between independent and ju-
ridically equal states became applicable only very late in history, in the sev-
enteenth century. But ideas of justice in international relations go back a
great deal further—practically as far as recorded history itself. This history
is, accordingly, an exploration of the various ways in which conceptions of
justice have played a part on the world stage.
In describing the subject to beginning students, I prefer to characterize it as
the scientific study of the emergence of order out of chaos. How is it possible—
even in theory, let alone in practice—to have a legal “system” of any kind
between states when there is no ruler to promulgate it? Where does it come
from? And why is it obeyed? International law is not so much a list of rules, as a
response to the challenge of devising answers to these befuddling queries.
This book may therefore be described as the story of the search for
answers to these questions (and similar ones) over the course of human his-
tory. Our concern will not be so much with the actual content of that law—
which we can safely leave in the hands of professional lawyers—as with the
general nature and character of it, how it has been made, how it has been
interpreted, how it has been applied in practice, and, above all, with how the
answers given to these basic questions have changed over the years. It will be
seen that, over the course of its long history, international law has been sub-
jected to reverend worship, constructive criticism, scornful dismissal, and
just about every fate in between.
Introduction 3
It would be a great error to think of international law as a single, unitary

phenomenon—like a ship sailing through different seas and weathering vari-
ous storms more or less intact. On our voyage, the features of the ship itself
will be constantly changing in character. This history is about that ship—the
venerable “S.S. International Law,” if you will—and the many refittings that
it has undergone in the course of its adventures. It is a remarkable journey,
which has been surprisingly little chronicled. The present work is intended
to put that to rights.
It might be better to shift metaphors and instead think of international
law as analogous to a river—perpetually in flow, but also constantly wearing
away at its banks, changing shape, depositing silt here and stirring it up there,
sometimes in flood, and sometimes reduced to a series of trickles through
separate channels. And sometimes, too, breaking free of its channel altogether
and taking a new path to its (vaguely defined) destination. International law
indeed has, through part of its long history, been regarded as an intellectual
feature of nature itself, to be accepted and understood—and obeyed—as
best can be done by frail humans. At other times, humans have fancied
themselves in the role of hydraulic engineers, bending nature to the will of
man. Sometimes, in short, international law has been regarded as some-
thing to be “found,” and at other times as something to be “made.”
This discussion cannot be a comprehensive history of all international
legal doctrines and practices through the whole of history. That would put
far too great a strain on the patience of both writer and audience (and on the
sanity of at least one of these). Your author, though mild mannered in many
respects, has been stern and ruthless in the selectivity of topics, doctrines,
and incidents to be covered. As a meek defense, it can only be said that every
chapter threatened menacingly to blow up into a book of its own. Selectivity
was a desperate response but an inevitable one, too.
Professional lawyers will be quick to spot neglect of their specialist areas.
Diplomatic law, for example, will not receive much in the way of detailed con-
sideration. The law of the sea will also receive less attention than is ideal. Other
areas that receive little treatment include state succession, trade and investment
law, and environmental law. There is little in detail on the law on the conduct of
war (as rich a field as that is). International organizations will not receive treat-
ment in depth, nor will collective-security questions, or regional systems. Ad-
herents of the various contending schools of thought will undoubtedly find
4 Introduction
their own beliefs treated at too little length and with too little reverence. They
will be right on the first count, but I hope not on the second.
The task, instead, is to trace the broad contours of the history of interna-
tional law from its dawn to the present day—for lay readers as well as law-
yers. For the benefit of laypersons, the book is animated throughout by a
rigorous presumption that the reader will have no prior legal knowledge or
training. The history of international law is too important—not to say too
interesting—to leave it as the property of a professional elite. Moreover, that
professional elite has been scandalously negligent for too long in exploring
its history.
Lay readers often fear (with fair reason) that the professional jargon of the
lawyers will pummel them into incomprehension. That fear is groundless
here. Technical terminology is eschewed wherever possible—and, where nec-
essary, is explained as it appears. Oddly, the more serious problem is that cer-
tain important trends or schools of thought have no accepted labels at all—a
telling indication of the extraordinary neglect of this subject in the past. In
such instances, simple descriptive labels will supplied, and they will be care-
fully identified as they arise.
The story is basically narrative and chronological. The first part, taking us
to about 1550, traces the evolution of the various pragmatic rules devised in
various ancient civilizations. It then looks at the European Middle Ages and
the Islamic world, and on to wider horizons, surveying the various legal is-
sues presented by the discovery, conquest, and settlement of the New World.
The second part, covering from ca. 1550 to 1815, relates the birth of interna-
tional law in its modern conception, as a law actually made by states (at least
in part), in addition to being a law that is merely applicable to states. The
third part covers the nineteenth century, or more precisely the period from
1815 to 1914—which is, remarkably, a much neglected part of the history of
international law. But it was an immensely creative time, marked by the emer-
gence of the various rival schools of thought that continue to exist today. The
fourth part covers the twentieth and (thus far) twenty-first centuries, with
their many novel challenges and innovations—and tragedies.
More broadly and briefly, our story is of the quest, throughout human
history, to bring order and stability to international relations on the basis of
the (or at least a) rule of law. It is the story, in short, of one of the greatest
endeavors—both intellectual and practical—of the human species.
I
Law and Mor ality Abroad
(to ca. ad 1550)
[T]here really is . . . a natural justice and injustice that is binding
on all men, even on those who have no association or covenant
with each other.
—Aristotle
In Greek mythology, Chaos was the first of the gods. We have Hesiod’s
weighty authority for this, but, in the context of international affairs, we
could have guessed it in any event. In the luxuriant pantheons of ancient
peoples, we search in vain for a god or goddess of international law. There is
no shortage of deities who are devoted to justice, either in a general sense or
in specialized areas, such as oaths or contracts. But there was a conspicuous,
and apparently universal, absence of gods or goddesses who were guardians
of justice between independent nations. If that gap was to be filled, then the
peoples of the world were going to have to do it—somehow or other—by
themselves.
It therefore appears all the more striking that glimmers of international
law can be discerned nearly as far back as historical records will take us. The
international law in question was, to be sure, threadbare in the extreme by
our more demanding later standards. It was an assemblage of practices and
not an expression of any set of deep-seated general principles. In particular,
three areas of state practice were especially prominent. First was treaty mak-
ing. There was a very general concern and expectation that treaties, once
solemnly concluded, must be scrupulously adhered to. Second was diplo-
matic relations—especially the according of certain privileges and immuni-
ties to envoys dispatched on official missions from foreign powers. Third was
warfare. There was a general, if somewhat vague, belief that wars should be
undertaken only if there is a just cause for them. And in certain contexts at
least, there were sometimes rules—or at least expectations—that certain
restraints on violence would be observed.
Not until later—and in its fullest form, much later—was there any con-
ception of a systematic body of principles covering all aspects of interna-
tional relations. Only when that occurred did it become possible to apply
international law to new and unforeseen situations. The first moves in this
direction were taken in ancient China, in the preimperial period. But the
decisive step came from the Mediterranean world, where the civilizations of
8 Law and Morality Abroad (to ca. ad 1550)
Greece and Rome devised a body of principles known as natural law. This
was a body of law that was truly universal in scope and application, without
regard to race, religion, region, or language. Medieval Europe became a lega-
tee of this crucial invention, resulting in a vision—if not quite a reality—of a
harmonious system of states living according to something that could fairly
be called a rule of law.
The vision of a universal rule of law between states was put to a severe test
in the context of relations between Christian and Muslim states in the Med-
iterranean region beginning in the eleventh century. A further challenge
followed in the age of exploration in the fifteenth and sixteenth centuries,
when European civilization expanded into the Indian Ocean and Far East
and, more spectacularly, into the Western Hemisphere. It cannot be said
that the vision of a universal natural law proved altogether equal to these
challenges. But remarkably, it cannot be said to have utterly failed them ei-
ther. Through all of these vicissitudes, the basic idea of justice and a rule of
law between nations managed to survive. All things considered, it was a re-
markable feat.
chapter one
Doing Justice to Others
he abduction of Helen of Troy was the archetypal example of a

T wrongful act that led to an outbreak of war. A lawyer might quibble
that, strictly speaking, it was not the face itself that “launched a thousand
ships,” but rather the unlawful taking. In any event, though, the thrilling
tale belongs (alas) to legend and not to history. More firmly in the realm of
fact—if less resplendent as literature—was an event in the late fift h century
bc, related by the Roman historian Livy. It was a period of Roman history
(long before there was a Roman Empire) marked by deep political and social
conflict between the patrician and plebeian orders. Th is disunity naturally
impaired the fledgling state’s ability to present a united face to actual or po-
tential enemies abroad. But an incident in 438 or 437 bc had the effect of
instantly uniting the Roman people against the neighboring state of Veii. In
that year, the ruler of Veii, Lars Tolumnius, ordered the murder of four en-
voys sent to him from Rome. This deed was described by Livy not merely as
an act of “unspeakable brutality” but also as an egregious violation of “the
law of nations (ius gentium).” The Roman people—plebeian and patrician
alike—were as one in their outrage, and war was inevitable. The result was a
conflict of some twelve years’ duration, eventuating in a Roman victory (with-
out the assistance of a wooden horse).
Perhaps there would have been war between the two states anyway, sparked
by a different incident of some kind. There was, though, a general belief in the
ancient world—not merely in Italy or the Mediterranean area—that there must
be a precipitating event of some kind. A mere general feeling of hostility was
not regarded as sufficient for the launching of a war. There had to be some kind
of just cause—or, at a minimum, a semblance of one. Moreover, this belief
applied to wars on the largest of scales as well as on the smallest. When Alex-
ander the Great embarked on his epic conquest of the Persian Empire (and
beyond) in the fourth century bc, he went armed with a legal justification, in
addition to his troops and weapons. He was, at least ostensibly, avenging the
Persian invasion of Greece of a century and a half earlier. There was no short-
age of skepticism as to the validity of this justification. But the crucial point is
that it was generally seen to be necessary for even the greatest of conquerors to
have justice on their side, as well as the god of battles.
How this general feeling came to take hold, and to be so widely held, is
shrouded in mystery to the present day. Some have asserted the existence of
a universal and biologically innate sense of justice in humans, analogous to
the universal religious sensibility posited by some anthropologists. Certain
schools of thought about natural law have been, and continue to be, based
on this thesis. These claims of a universal consciousness of justice—“written
in the hearts of men,” as sometimes asserted—may well be true. But it is also
likely to have been true that this innate instinct of justice has required the
presence of certain social, economic, political, and religious conditions to
flourish to its fullest extent.
It seems likely that, in the beginning, this sense of justice had free play
only within very limited bounds—that it began at home and then gradually
spread outward, first to relatives (sometimes of fairly great biological dis-
tance), then to nonrelated near neighbors, then to more distant persons, and
eventually encompassing, say, a city-state or a sizable region. There appears
to be no à priori reason that the process could not extend more widely, to
operate within large nation-states, or even multinational empires. It might
even expand further yet—to apply to relations between these larger entities.
To this last step, we have come to attach the name “international law.” Our
ancient ancestors did not apply that label, but they did achieve something of
major importance. They applied, in their practice, the germ of the idea. And
from that germ, there grew the idea itself. But not everywhere. In fact, it was
only in the civilizations at the far western end of the Eurasian land mass that
general ideas of an impersonal and transnational system of justice took any-
thing like deep roots.
Doing Justice to Others 11
Plural Worlds
In the beginning, human political horizons—and hence loyalties—were in-

evitably narrow, at least for ordinary people. That the world was divided into
a welter of different languages, customs, and religions appears to have been
taken as an ineradicable feature of the human condition. The biblical tale of
the Tower of Babel envisaged a united, monolingual humanity only in a
vague, prehistorical period. The normal mode of humanity in historical
time was confusion and scatter. A sense of “us” and “them” could hardly
have failed to have been acute, especially in an archaic age before the advent
of the great universal religions.
In the nineteenth century, the British philosopher Herbert Spencer ex-
pressed the opinion that human morality has a dual character that directly re-
flects this dichotomy between friends and strangers. Relations within a given
society, Spencer thought, were governed by what he called a “moral code of
amity,” which promotes mutual assistance and interpersonal justice and fair-
ness. In opposition to this is what he called a “code of enmity,” which applies
to relations with other societies. Somehow or other, the ethical systems by
which humans live must accommodate both of these “radically opposed” con-
ceptions of social life. The result, Spencer believed, is that, at any given stage of
history, “an appropriate compromise” between the two will be devised—“not,
indeed, a definable, consistent compromise, but a compromise fairly well under-
stood.” This ethical modus vivendi must necessarily be “vague, ambiguous, il-
logical,” but also “for the time being authoritative.”
Similar opinions were expressed in the ancient world. One example is
found in the account by the historian Plutarch of the life of the renowned
fifth-century bc Athenian statesman Aristides “the Just.” Plutarch noted that
Aristeides’s famously acute sense of justice was said to have had sharp
geographical bounds. For all of his rectitude in dealing with his fellow Athe-
nians, he was not above acting opportunistically—and even dishonestly—
when advancing the interest of Athens against other states. In the following
century, the philosopher Plato, characterizing the rulers of his ideal city, lik-
ened them to pure-bred dogs, wishing them “to be as gentle as possible to those
they know and recognize, and the exact opposite to those they don’t know.”
Modern scientists have given the label “parochial altruism” to this phe-
nomenon of being altruistic and cooperative within small groups, while
simultaneously hostile to outsiders. Konrad Lorenz, the noted Austrian

ethologist, suggested that this moral dualism represents two sides of the
same biological coin. He contended that animals which are noted for their
mutual loyalty within their small groups are especially aggressive toward
outsiders. “The proverbially most aggressive of all animals,” he maintained,
“Dante’s bestia senza pace [i.e., the wolf] is the most faithful of friends.” In
a similar vein, the evolutionary biologist Edward O. Wilson has hypothe-
sized that parochial altruism is an innate biological feature of Homo sapi-
ens. “Our instincts,” he suggests, “still desire the tiny, united band-networks
that prevailed during the hundreds of millennia preceding the dawn of
history”—with the result that the human creature is, by nature, “an in-
tensely tribal animal” with a “hardwired propensity to downgrade other-
group members.”
Some biologists have suggested a genetic explanation for altruistic behavior
toward relatives. Claims have even been made of a specific biochemical basis
for parochial altruism: a neuropeptide called oxytocin, which is produced in
the human brain and operates as both a neurotransmitter and a hormone.
This “love hormone” (as it has sometimes been dubbed) is thought to have
originally been associated with mother-infant bonding and later with various
other prosocial features such as trust and empathy—but only within a lim-
ited social range. Oxytocin, it has been asserted, also “contributes to the devel-
opment of intergroup bias and preferential treatment of in-group over out-
group members.” It thereby “paves the way for . . . conflict and violence.”
If it is true that sentiments of justice are, to a large extent, reserved for
those who are near and denied to those from afar, we need not (necessarily)
despair. There are at least two ways in which the constraints of parochial al-
truism can be overcome. One is by taking an increasingly expansive view of
the social boundaries of the in-group. It is possible that the notions of “near-
ness” or “group” might be a good deal more elastic than is commonly sup-
posed. Even in a fragmented and diverse world, it is nonetheless the case that,
in various modest-size regions, there can be a significant degree of relative
cultural similarity. Languages, for example, are sometimes shared across fairly
large areas, and religions too. Neighboring peoples might even have a sense
of some kind of common ancestry in the more or less distant past.
The other strategy for dealing with parochial altruism is a more radical
one: to suppress it by means of heroic intellectual endeavor. Even if our bio-
logical makeup may incline us in certain antisocial directions, there seems

to be no à priori reason that these tendencies cannot be overridden by ap-
propriate degrees of rational exertion.
The history of international law can be thought of as the story of these
two strategies at work throughout the course of the human past—and pres-
ent. The two strategies have been adopted in the order just given. First came
the device of extending the sense of the “in-group” outward from its tribal or
city-state origin, so as to encompass other groups that were culturally (and
commonly geographically) nearby. Only later was the more rationalistic or
intellectual path taken, of regarding foreign cultures as being in principle on
a moral or legal par with one’s own. International law, in short, began its life
in small settings, dealing with concrete and immediate problems, and then
began to feel its way toward truly universalistic ways of thinking. There was
not—and still is not—a set script to follow or any straight path to a precon-
ceived goal. Instead, there was, certainly in early centuries, a kind of grop-
ing toward intersocietal order, and on a modest scale at that.
It would seem reasonable to search for the first signs of international law
in areas marked by two key features: a relatively high degree of cultural ho-
mogeneity, coupled with political fragmentation. These conditions prevailed
to a significant extent in three regions of Eurasia: first in Mesopotamia and
later in India and China (prior to its unification into a single state). Later, we
have the important examples of the city-state cosmos of ancient Greece and
the relations of Rome with its Italian neighbors early in its glorious history.
We shall very briefly survey each of these.
Mesopotamia and the Middle East

To persons who believe foreign relations to be intrinsically conflictual, an-
cient Mesopotamia offers an instructive counterexample. The earliest civili-
zation to flourish there, in the fourth and third millennia bc, was Sumer,
which comprised an array of city-states without prominent natural bound-
aries separating them. This might appear to be a recipe for perpetual warfare,
but in fact the prevailing ethos was hegemonic. It was generally accepted that
one city would be regarded as the leading one, possessed of what was called
the “kingship.” This dominant role entailed the authority to arbitrate dis-
putes between other cities—but crucially, without a right to interfere in
government within those cities. As early as 4000 bc, there is an example of

the ruler of Kish acting as an arbitrator in a boundary dispute between two
other cities (Shirpurla and Gishku).
The expression “confederal society” has been used to describe this hege-
monic arrangement. It would appear that military strength was the basis
of the leadership role—so that the dominant position could, and did, shift
from one city to another over the course of time. This occurred, in the stan-
dard formula of the time, when the erstwhile leading kingdom “was stricken
by force of arms.” But there was a concern that, at all times, some city or
other must be in possession of the leadership. “The kingship must reside
somewhere” was a standard formula.
Arbitration was not invariably successful in preventing wars. It is inter-
esting, though, that our oldest extant record of a war in which the causes are
set out concerned not a war of conquest or aggression, but, more prosaically,
a boundary dispute between the two Sumerian cities of Lagash and Umma.
The affair is narrated, fragmentarily, on the Stele of the Vultures, at present
located in the Louvre in Paris, and dating from about 2460 bc. It is said to be
the oldest known public war monument in history, but it also does duty as
history’s earliest surviving peace treaty. In it, the victory of Lagash is com-
memorated, with the ruler of Umma expressly identified as a trespasser. The
boundary is defined (in Lagash’s favor), and the ruler of Umma swears an
oath to respect it. The stele was probably erected along the boundary and
probably accompanied by a curse at the end to discourage tampering.
The ancient Middle East is also the source of our earliest detailed infor-
mation on treaty-making practice in general. The Elder Pliny, the Roman
encyclopedist of the first century ad, opined that the Athenian hero Theseus
had (somehow) invented treaty making, but in this respect, as in so many, he
was far off the mark. The earliest surviving treaty of peacetime friendship
between two states dates from the twenty-third century bc and was con-
cluded between the Syrian state of Ebla and the region of Abarsal, in present-
day northern Iraq. It contained provisions relating to the travel of messen-
gers and merchants between the two states and appears also to have confirmed
Abarsal as some kind of protected state or vassal kingdom of Ebla. In gen-
eral, peacemaking and alliances were a common topic of treaty makers. So
was law enforcement, in the form of cooperation against banditry or ar-
rangements for the extradition of criminals.
The gods played a prominent role in treaty making, to the point that it has
been asserted that, strictly speaking, treaties were actually between the gods
themselves, with the humans on Earth merely playing dutiful supporting
roles, acknowledging and illustrating the wills of their respective deities.
Be that as it may, various rituals were involved in the treaty-making process.
A communal meal became a standard feature. Animal sacrifice was com-
mon, too (especially the killing of an ass), as well as ritual touchings of the
hems of garments. The most important element was the provision of super-
natural sanctions (i.e., punishments) for infractions. The treaty makers would
call down curses on themselves in the event of a breach. The frequent refer-
ences to touching the throat when making a treaty were indications that
death was the penalty for violation. Over the course of time, the curses
became increasingly elaborate and detailed.
Provisions were made to ensure that treaty obligations would not be for-
gotten with the passage of time. Texts of the agreements were typically de-
posited in temples for safekeeping, and there was periodic public recitation
of the treaties. One treaty that has survived, between the Hittites and Wilusa
(in the northwestern part of present-day Turkey), concluded in the early
thirteenth century bc, even specified that these recitations take place three
times a year.
One point about treaty making of this sort is worth noting. That is, the
mere fact of arriving at an agreement was not regarded as sufficing, in itself,
to produce a legally binding obligation between the parties. What created
the actual obligation was the oath sworn by each party to his own gods.
These treaties, in other words, are probably best regarded as back-to-back,
interlocking, unilateral commitments by the parties. This is most apparent
from the sanctions provisions, which envisage that a treaty breaker will be
punished by his own gods for breach of his duty to them.
India
About ancient India, less is known than about either Mesopotamia or China.
In large part, this is because the materials on which written records were
made were more perishable than the well-nigh indestructible clay tablets of
Mesopotamia. But it was also a result of a comparative lack of historical con-
sciousness on the part of Indian writers, in marked contrast to the situation
in China. The oldest surviving Indian text that contains material on inter-
national relations is a manual of statesmanship attributed to a writer named
Kautilya, possibly dating, at least in part, from the third century bc but
probably incorporating later material. Later scholars have given it the title
Artasastra, meaning literally a manual on craftsmanship—in this case, the
craft of being an effective prince. It is one of the world’s masterpieces of
hardheaded political realism, unleavened by piety, sentimentality, or ideal-
ism. The ideal leader, to Kautilya, is not the man of virtue but rather one
who possesses “the eye of knowledge” and is familiar with “the science of
polity.” The treatise is replete with practical advice on such topics as per-
sonal security (e.g., defense against poisoning), organizing spying systems,
recruiting and managing armed forces, devising military strategy, and fo-
menting domestic unrest in enemy states.
Some of the advice concerned foreign affairs. It was taken for granted that
neighboring states would be enemies in principle, even if relations were inter-
mittently peaceful from time to time, as expediency might dictate. Regarding
treaties, some useful advice was provided—not, however, on the mechanics of
concluding them or the necessity of observing them. Instead, Kautilya’s con-
cern was to explain when it was mandatory for a responsible statesman to
disregard them. If a ruler perceives that adherence to a given treaty causes a
“loss of profit,” it is stated, and if the breach of it would cause no loss to the
other party, then he should proceed to disregard the agreement.
On the subject of diplomatic practice, Kautilya provided a rationale for
the granting of at least certain privileges to envoys. Specifically, he held that
an envoy should not be punished for bearing unwelcome news from his prin-
cipal. The reason given was that envoys are the mere “mouth-pieces of kings,”
speaking their rulers’ words rather than their own. Consequently, any
wrongdoing associated with the message (such as repudiating a treaty) must
be attributed to the principal and not the messenger. It may be noted that,
on this logic, there is no suggestion of general inviolability of ambassadors
as in modern international law. The door is left open for punishing the en-
voy for any wrongdoing which he commits on his own initiative.
On the conduct of warfare, Kautilya dispenses much advice of a practical
sort—with lavish attention to spying and various kinds of deception, as well
as to sundry ways of administering poisons. (There is also, appropriately,
advice on antidotes when the enemy employs these devices.) Restraints on
warfare were not a preoccupation. On the contrary, Kautilya explicitly ap-

proved of the tactic of deploying booby traps (or “contrivances”) in sacred
places. He helpfully suggested, for example, that, “by removing the fasten-
ings under a cot or a seat, [an enemy belligerent] may be made to fall into a
pit containing pointed spears.”
A different—and distinctly more high-minded—category of writings com-
prised the various Dharmasastras, which were basically treatises on religious
duties. We have only very imperfect information of the dates of these works
(which were probably composites of writings over extended time periods),
and we know nothing of their authors (or compilers) beyond their names.
But this class of writings presents some striking contrasts with the Artasas-
tra, especially on the subject of the conduct of war, with various restraints
urged upon belligerents. The Dharmasutra of Apastamba (ca. 450–350 bc),
for example, gave four categories of persons who are exempt from attack in
war: those who have thrown down their weapons (i.e., abandoned the fight,
perhaps referring to deserters from the enemy side), those “who have di-
shevelled hair” (referring to certain religious figures), those who fold their
hands in supplication (i.e., who surrender and then appeal to the victors for
mercy or protection), and those who are fleeing.
Another Dharmasutra, attributed to an ancient sage named Gautama (ca.
600–400 bc), had a somewhat lengthier list of protected people, adding mes-
sengers, persons claiming to be either cows or Brahmins, and persons who
have climbed onto a ledge or tree. The Dharmasutra of Baudhayana
(ca. 500–200 bc) contained similar restrictions on violence against noncom-
batants, while carefully adding the condition that the protected persons
must not join in the hostilities. This code also contained a restriction on
permissible weapons that the belligerents can wield against one another: it
prohibited the use of barbed or poisoned weapons.
China in the Warring States Era

If we demand of international law that it comprise a set of broad general prin-
ciples about relations between states, instead of simply providing a menu of
practices on specific topics, then we can confidently place the birth of our
subject in ancient China, in the age prior to the unification of the country
into a single empire in 221 bc. This was the period comprising the Spring
and Autumn Era (722–481 bc, so named because these were years covered
by the Chinese history classic, The Spring and Autumn Annals) and the sub-
sequent Warring States Era (481–221 bc). The Chinese regarded it as a time
of degeneration from a prior golden age of political unity, under the quasi-
mythical Shang dynasty and the wholly mythical Hsia dynasty. Even when
political fragmentation prevailed in practice, unity remained the ideal. This
was reflected in the according of a sort of honorific primacy to the state of
Chou, broadly similar to the position of position of “kingship” in Sumer
(hence the alternate designation of the period as the Chou dynasty). But this
was merely a ceremonial and titular preeminence, not a reflection of actual
power relations.
Across the Chinese world, there was a general sense of cultural and racial
unity, as well as a fair amount of traffic between the states by individuals.
Merchants, for example, were generally free to travel between one state and
another with little interference. Political loyalties were surprisingly fluid,
even at high levels. Statesmen, nobles, and warriors appear to have had little
trouble in shifting their allegiance from one sovereign to another, shopping
around (in later parlance) for rulers whom they regarded as suitable to serve.
The most famous of these peripatetics was the sage Kong Fu-tze—better
known in Latinized form as Confucius—who lived in the sixth and fift h
centuries bc. Originally from the small state of Lu (in modern Shandong),
he led the life of a wandering teacher in various other states.
In the area of state practice, there was a great deal of treaty making among
the various Chinese states. In the Spring and Autumn Annals, over 140 trea-
ties are recorded, about half of them bilateral and half multilateral. Rituals
broadly similar to those of the Middle East accompanied their conclusion.
Typically, an animal sacrifice was involved, with the tearing off of the left
ear of the victim, which was then used for smearing the text of the treaty,
and the lips of the signers, with blood. Of bilateral treaties, three copies were
made, one for each party and the third to be buried with the corpse of the
sacrificial beast. Guarantees of observance were also achieved by methods
similar to those in Middle Eastern societies. For example, there was often an
oath of wrath against any later violator. Sometimes, there was a posting of a
bond as security for observance. More common, though, was an exchange
of hostages, who typically were the sons of the rulers who had concluded the
treaty.
An interesting feature of China’s Warring States period was the forma-

tion of various leagues of states, typically with a leading role accorded explic-
itly to one of the members. The leading state (or Ba) would receive tribute
from the other members and would have the task of directing the general
policies of the league. In return, it had to provide assistance to other states in
the event of attack. The first state to attain full Ba status was Qi in about 680
bc. It was succeeded by the state of Jin, which retained Ba status for over
eighty years. The major alternative league was dominated by the state of
Chu, which appears to have had unrestricted power over the member states.
Other leagues began to be formed to the point that, by about 600 bc, the
practice had become common. Until the end of the Warring States period
(in 221 bc), the leagues functioned as the principal means of enforcing in-
terstate commitments.
Leagues generally had multilateral treaties as their foundation, which
typically contained provisions for joint action by the parties or members
against any state that infringed the agreement. There were commonly ar-
rangements for the extradition of criminals, as well as for trade, communi-
cations, and cultural interchange. The settlement of disputes between states
was an important league function. The usual practice was for the court of
the dominant league state to serve as a high tribunal for this purpose. If the
leading state was itself a party to a dispute with a member, then a third
member of the league would offer to mediate. An example of this occurred
in 625 bc, when the leading state in one of the leagues, Chin, was in a dis-
pute with another member, Wei. A third league state, Ch’en, performed the
mediation role.
Meetings of league members were fairly frequent. The Chou league, for
example, averaged two meetings every three years, with sizable delegations
attending (often of over one hundred members). There were sometimes even
agreements between leagues, as in 546 bc, when the two main leagues con-
cluded a treaty that provided for reciprocal visits (although the arrangement
did not last very long).
The largest number of parties on record to any single Chinese treaty was
for a league formed in 562 bc by twelve states. The foundation agreement
included promises not to hoard produce and not to harbor criminals or trai-
tors. It did not, however, prove very effective. In the very next year, two of its
parties went to war with one another.
Diplomatic practice was an area that received a great deal of attention

from Chinese writers, largely contained in a collection of “three ritual texts”:
The Book of Rites (or Li-chi), which was one of the five Confucian classics,
plus two lesser works. They set out what has been described as “an elaborate
system of administration, ceremonies, ranks of officials, methods of inter-
course, and behavior standards” of the period—although, in reality, these
works consisted chiefly of later fabrications, projecting backward onto the
Chou period the practices of the later, imperial era. A large amount of this
literature concerned the formalities and rituals associated with diplomatic
intercourse, such as the appropriate ceremonies for the receiving of emissar-
ies from other states. In this period, there were no permanent diplomatic
missions stationed in the various states, but ad hoc diplomatic contacts were
so common as to amount to practically the same thing.
The mistreatment of envoys was sometimes, at least, taken very seriously
indeed. We know of a case in 636 bc in which the Prince of Cheng captured
an ambassador from the Chou ruler. In response, Chou sent a military expe-
dition to free the envoy and punish the prince. But there were also a num-
ber of instances of flagrant mistreatment of ambassadors and other foreign
officials, including rulers, that went unpunished simply because of the mili-
tary weakness of the victim state. The state of Chin appears to have been the
chief offender on this score. In 582 bc, the earl of Cheng was put to death in
that state. Two years later, the ruler of Chin detained the ruler of Lu (Confu-
cius’s home state) at his court as a virtual prisoner. In 519 bc, another prince
of Chin similarly seized an ambassador from Lu and held him as a captive.
It is hardly surprising that, in the Warring States period, armed conflict
was a not infrequent occurrence. But there was a general belief that war
should be waged only in pursuit of some valid cause—as reflected in a com-
mon maxim, that “[f]or war you must have a cause that may be named.”
Regarding the conduct of war, there is evidence of a certain system of re-
straints. For example, the general practice was to spare noncombatants from
attack. In actions against the enemy, there are signs of an impressively chiv-
alrous ethos. There was a custom, for example, of refraining from invading
a state in the year in which its leader died or in a year in which the state
suffered an insurrection. Surprise attacks were frowned on. It was urged,
for example, that prior to an attack, the attacker should beat a drum to give
the enemy a fair warning of the battle to come. It was customary, too, to
refrain from pursuing defeated enemies who were fleeing from battle. The
right of other states to remain neutral in a conflict between any two countries
was admitted, although it is not clear how far the interests of neutral states
were actually respected.
Care should be taken not to exaggerate the effectiveness of these worthy
principles in practice. The rules—if they can even be called that—appear to
have been breached with some frequency, and typically with impunity. In
the seventh century bc, there were at least two instances in which states
were attacked in years in which they had suffered insurrections. And in the
following century, there were at least three instances in which states were
invaded in the year that their rulers died.
In addition to this body of state practice, the Warring States period of
Chinese history produced an innovation of a quite different character: a body
of systematic writing on international relations. It was very slight in bulk, but
it must be said to mark the beginning of international law as an intellectual
discipline—as opposed to international law as a set of state practices. There
were even several distinct schools of thought in the area, with the Confu-
cian tradition as the dominant one. The basis of Confucianism was a system
of interpersonal ethics—with an extrapolation from this to a general theory
of social relations. Some of its key tenets were applicable to relations be-
tween states as well.
There were four particularly noteworthy elements of Confucianism. One
was an insistence on the importance of deference and hierarchy in human
relations: of younger siblings to older ones, of children to parents, of sub-
jects to sovereigns. A second component was a stress on duties rather than
rights—but of duties that were reciprocal in nature, running downward from
above, as well as upward from below. The Confucian system was thereby in-
fused with a powerful sense of noblesse oblige or paternalism, and also with
the belief that the key to good government lay in the personal qualities of
the leader. Benevolent rule by a king was expected to generate, more or less
automatically, gratitude, loyalty, obedience, and order on the part of his
subjects.
The third key element of Confucianism was the belief that this network of
reciprocal duties made for a harmonious and well-ordered society in general,
in which all persons had appropriate roles to play, whatever their station in
life. Confucianism was, in short, a system suff used by inequality—but also
by benevolence and harmony. Fourth and fi nally, the Confucians had

a low opinion of law in general. Rules and punishments were, of course,
sometimes necessary, especially when dealing with the lowly and uncouth
elements of society. But the Confucian ideal was of government by a be-
nevolent (and absolute) monarch, whose example of virtue would provide a
continuous education and inspiration to his subjects. The goal was the inter-
nalization of proper modes of conduct, rather than the imposition of rules
from outside.
The principal application of Confucian ideas to international relations
came not from Confucius himself, but from his follower of the fourth century
bc, Meng Zu (or Mencius in Latin form). At the heart of his thought was a
certain view of human nature: a belief in an innate goodness of human be-
ings, including rulers. This implied, in turn, a belief in a basically peaceful,
harmonious world of states. Mencius believed in the equality of states only
in the limited sense of holding that all states have an equal right to exist. But
here, as was the case within societies, the ethos of hierarchy and deference
was given a central role. Mencius maintained that large and powerful states
should play a leading role—but that they should play that role responsibly,
setting good examples for other states. He was explicitly opposed to wars of
conquest and to the subjection of one state to another, insisting instead on a
pluralistic world of separate states as the norm.
Mencius held consistently to a rule of nonintervention by states in the
internal affairs of one another, to the point of emphasizing that, even in a
case of misconduct by a ruler within a state, other rulers should refrain from
taking punitive action. Only “a minister appointed by Heaven” should under-
take punishment of an oppressive sovereign, not the government of a neigh-
boring state. He explained his position by reference to the general Confu-
cian principle that punishment can be inflicted only by a superior upon an
inferior—and then pointing out that, in international affairs, this necessary
relationship of superior to inferior is lacking.
By the same token, small states were expected by Mencius to show appro-
priate deference toward large ones. This took the form, most concretely, of
the payment of what is typically called tribute. In theory at least, tribute pay-
ment by small states to large ones was a voluntary, self-imposed action—an
acknowledgment of a general duty of respect owed by the humble to the
great, rather than a sign of legal or political subjection, as that term in
English usually implies. The relation of small states to large ones was com-
pared by Mencius to the relationship of teacher to disciple, rather than as
sovereign to subject. This ethos of deference and hierarchy, of interconnec-
tion and noblesse oblige, was most clearly in evidence in the various leagues
of states described previously.
Confucianism did not have a monopoly on Chinese thought. One of the
alternative schools of thought was that of Mozi (or Mo-tzu or Mo ti), who
may be regarded as a dissident Confucian. Nothing certain is known of his
personal life, save that he came from the state of Song. Since his writing
predated that of Mencius, he has a claim to being the very first writer in his-
tory to touch on international-law questions. The Mohists were more noted
than the Confucians as outspoken opponents of aggressive or offensive war,
which Mozi condemned as a crime. But Mohism did not endorse absolute
pacifism. It accepted the justice of war waged in self-defense. In fact, Mozi
himself is said to have been an expert in the technology and tactics of siege
warfare—with the intention of assisting small states to repel attacks by large
ones. He was also imbued with the spirit of collective security, favoring the
rendering of assistance to small countries that are attacked by aggressors.
Mohists were even organized along military lines, possibly somewhat in the
manner of the crusading orders of medieval Christendom. There was an ac-
count of a grand master of a Mohist organization contracting with a local
lord to take on the defense of his city. It is noteworthy, too, that Mozi care-
fully distinguished aggressive war from punitive war and did not disapprove
of war that was designed to punish or counteract wrongful conduct.
In the sphere of government and public affairs, the principal rival school
of thought to Confucianism was legalism. A core feature of legalist thought
was the insistence that law is entirely a conscious human creation, designed
for the effective implementation of governmental policies. The legalists had
no regard for tradition or custom, affirming that an effective ruler should be
prepared to engage in the ruthless extirpation of past practices if they were
found to interfere with the effectiveness of his rule. All law was held to be
instrumental in character (i.e., designed for the attainment of specific ends
determined by the ruler). Each sovereign, moreover, was regarded as being
free to institute whatever law and to develop whatever policies he saw fit.
Legalism must therefore be understood as referring not to the rule of law
per se, but instead to the idea that law is an instrument of state sovereignty
and of the will of individual princes. On this basis, legalism may be seen
as a stark forerunner of what Eu ropeans would (much) later know as
positivism.
Regarding international affairs, legalism was thoroughly in tune with the
realities of the Chinese interstate system of the Warring States period. Its
world was one of resolutely independent states, locked in perpetual rivalry
with one another. Legalism altogether rejected cosmopolitan ideas of uni-
versal law or morality, or anything smacking of what would later be called
natural-law thought. Relations between states were seen as determined by
power and not by abstract ethical theories or customary practices. Chinese
legalism, in short, presented the first forthright theory of absolute state sov-
ereignty and was the first body of writing in what later Westerners would
call the tradition of realism.
Considering the Chinese experience generally, there can be no doubt
that, of the three cultural areas under consideration, it made the greatest
advances in the direction of international law. This was true in terms of the
richness of its state practice and also of the doctrinal writing that it pro-
duced. At the same time, though, it can hardly be said that preimperial
China actually had anything like an effective system of international law.
For one thing, it is questionable whether the term “law” is really an apt term
at all to describe relations between states in the preimperial Chinese system.
One commentator, for example, has been unwilling to concede to the Chi-
nese anything more than “a certain uniformity of state behavior patterns,”
amounting, in reality, to “little more than patterns of convenience in a power
struggle.” 
Moreover, it appears that, in practice, Chinese rulers were quick to depart
from the principles expounded by the writers when they believed their ma-
terial interests to be at stake. Treaties appear to have been broken with a fair
degree of frequency, with little or no evidence of remorse on the part of the
rulers concerned. Major powers in particular appear to have been fre-
quently lacking in the benevolence expected of them by high-minded writ-
ers such as Mencius. They had few compunctions about acting according
their own perceived self-interest rather than in obedience to some generally
applicable scheme of rules. Where the rule of law functioned most effec-
tively was within leagues of states, relatively small groupings formed for
mutual self-protection. In the wider Chinese world—to say nothing of rela-
tions with non-Chinese peoples—power appears to have counted for a great

deal more than law. The spirit of Kautilya, in short, was often more in evi-
dence than that of Confucius or Mencius.
Ancient Greece
The world of the ancient Greek city-states bore a certain broad resemblance
to the warring states of preimperial China and to ancient Mesopotamia, in
being a world fractured politically but at the same time united to an extent
by cultural ties. In Greece, as in these other areas, there was a fairly signifi-
cant body of state practice in the key areas of treaty making, diplomatic rela-
tions, and warfare before there was any systematic thought on the subject of
justice in international relations between city-states.
One respect in which Greece differed from Mesopotamia and China was
in the prevailing attitude toward political fragmentation. In Greece, there
was a stronger ethos of independence of one city from another, in contrast
to the quasi-federalistic and hegemonic outlook of the Sumerians and to the
nominal deference of the Chinese to the state of Chou. Plato even expressed
misgivings in principle about contact of any sort between states, fearing that
it “produces a medley of all sorts of characters,” arising from the mixing of
different customs. His ideal was a self-sufficient, agriculturally based state—
with, for good measure, a complete prohibition on foreign travel by any one
under the age of forty.
In Greek culture in general, a high value was placed on the concept of
autarkeia (or self-sufficiency). Aristotle, writing in the fourth century bc,
put autarkeia at the very center of the general human quest for the good life.
He readily conceded, however, that this noble goal was not attainable on an
individual basis. It could be achieved only collectively, through the institu-
tion of the polis (or city-state)—which therefore was, essentially by defini-
tion, a political entity capable of subsisting on its own resources, indepen-
dently of other city-states. Moreover, Aristotle insisted on seeing the polis as
a natural phenomenon, as the inevitable result of the natural quest of the
human species for the goal of autarkeia. This principle of the independence
of each state from all other states was to have a very long history in interna-
tional law, although only in the nineteenth century would its full implica-
tions be rigorously drawn.
It is well, at this point, to take note of another of Aristotle’s ideas that

similarly would go on to play a very great role in international legal thought.
This was the notion of the natural sociability of humans. Similarly to Men-
cius, Aristotle held that there is “a natural impulse” among humans toward
cooperation. More specifically, this natural impulse leads humans to one
particular form of cooperation: the (Greek) city-state. It is in this specific
sense that Aristotle’s famous statement of humans as “political animals”—
that is, as animals naturally inclined toward life in a polis setting—must be
understood. This natural sociability, however, had a distinctly limited
reach. It went as far as the polis, but no farther. All politics are local, it is
sometimes said—a sentiment that is far from new.
Aristotle’s theory of the state did not have any ineluctable implications for
the problem of relations between states. Each state was independent of all
others, to be sure. But what, if anything, prevented man’s “natural impulse”
to cooperation from manifesting itself at this higher level, too? Aristotle’s
political theory was effectively neutral on this question. The independent
states might be disposed to be cooperative and friendly toward one another,
or they might be engaged in perpetual warfare, or any combination of these.
The furthest that we can safely go here is to conclude that Aristotle, armed
with his principle of the natural sociability of humans, at least allowed for
the possibility of a generally harmonious interstate system.
Prevailing opinion within the Greek world, so far as it can be discerned
from a vast historical distance, was divided on this question. There certainly
was at least some belief that relations between states were intrinsically hos-
tile. A speaker in one of Plato’s dialogues referred to a general belief that
states “are all engaged in a never-ending lifelong war against all other states.”
As a result, “what most men call ‘peace’ is really only a fiction, and in cold
fact all states are by nature fighting an undeclared war against every other
state.” No explicit doctrine of just wars was ever devised by the Greeks,
although Aristotle did concede that it was “quite possible” that a war might
be waged without a just cause. But he did not elaborate on this potentially
interesting point.
It should also be appreciated, though, that the Greek ethic of resolute in-
dependence of city-states from one another was counterbalanced, to at least
some extent, by a palpable consciousness of cultural unity within the Greek
world. In words attributed by the historian Herodotus to officials of Athens,
the Greeks were acutely aware of the existence of “the Greek nation—the
community of blood and language, temples and ritual; our common way of
life.” This sense of solidarity extended to the legal realm, too, in the form
of a belief in what was sometimes called “the common law of all Hellas”—
referring to standards of conduct that were acknowledged throughout the
whole Greek world. The most concrete manifestations of this unity were
the periodic intercity gatherings in the form of the great athletic games, of
which the most famous, in honor of Zeus, took place at Olympus.
As in China, movement of individuals between states was fairly common.
This is evident from the development of a regular practice of proxenoi, which
approximates to later consular representation. In the typical arrangement,
a city would make a grant of proxeny to a resident (and citizen) of another
city. The grantee was thereby entrusted with the task of rendering various
ser vices to citizens of the granting state when they were in the territory of
the grantee. Duties would include assisting in business dealings, providing le-
gal representation, supplying food and lodging, and various other ser vices.
The fellow feeling of the Greeks for one another was strikingly evident in
the manner in which they regarded war between Greeks as fundamentally
different from war against non-Greeks, or “barbarians.” (That expression
came from the most obvious feature of these outsiders: their non-Greek
speech, which was regarded as mere nonsense, or “bar-bar” in the style of
baby talk.) In the opinion of Plato, only conflict against the barbarians should
be regarded as true war. Greeks, he believed, were “natural friends,” so that
armed conflicts should be regarded as civil strife rather than as true war. In
such inter-Greek conflicts, Plato maintained that the “private anger of the
state” should not be allowed to destroy “the common interest of Hellas.”
He posited that the force employed should be “of a gentle kind” and that the
belligerents should regard themselves as “agents of correction, not enemies.”
This view of war as a process of correcting the errors of one’s opponents
constitutes the germ of what would later become just-war doctrine in Euro-
pean thought. In such a conflict, the purpose of the violence is not to con-
quer or enslave the opposing side, but merely to compel it to “make amends”
for its past errors.
As in the case of preimperial China, it cannot be pretended that these
noble sentiments held anything like a consistent sway over the actual prac-
tices of the Greek states. Thucydides, in his history of the epic Peloponnesian
War (of 431–404 bc) between Athens and Sparta, related a famous instance
in which considerations of law or justice played no part. This occurred in
416/15 bc, when Athens refused to respect the wishes of the inhabitants of
the island of Melos, originally a Spartan colony, to remain neutral. The pleas
of the Melians were brushed aside by the Athenian military commanders,
who asserted the existence of “a general and necessary law of nature to rule
whatever one can.” They warned that following “the path of justice and
honor” was likely to prejudice the higher goals of self-interest and security.
The warning was no idle one. When the Melians declined to join the Athe-
nian side, they were immediately attacked. This “Melian Dialogue” (as it is
commonly known) has become one of the canonical texts of the realist
school of international relations—and of skeptics of international law in
general.
It should be appreciated, though, that this same historian also provided
some instructive illustrations of legal considerations playing a part in war-
fare. One of these concerned an attack by Thebes against Plataea in 427 bc,
in which Sparta assisted Thebes in achieving victory. The defeated Plataeans
immediately appealed to the better nature of the victors, urging them not
“to take as your standards of justice your own immediate advantage.” In-
stead, the Spartans should “[judge] sincerely between right and wrong”—
meaning that they should acknowledge that the Theban attack had been an
act of unjustifiable aggression. The Plataeans maintained that their own con-
duct had been consistent with “the general law that one is always justified in
resisting an aggressor.” They further warned the Spartans to “beware lest pub-
lic opinion” condemn them for treating the Plataeans unjustly. The Thebans
countered by asserting that they had been invited to intervene by a faction in
Plataea. It is of interest that the Thebans conceded that, on its face, their action
did appear to be unjust—and that there was even “a certain justice” in the
Plataean attacks on them after the intervention.
Thucydides relates another interesting incident in which mutual accusa-
tions of war crimes were leveled, this time between Thebes and Athens fol-
lowing Thebes’s victory at the Battle of Oropus in 424/23 bc. The Thebans
accused the Athenians of having occupied and fortified a temple, contrary
to the customary rule of inviolability of temples in war. In addition, the
Athenians were accused of having used water for everyday use that should
have been reserved for religious usage only. The Athenians’ defense was to
invoke what would later be termed the principle of necessity. They conceded
that their occupation of the temple was wrongful in principle—but that it
was nonetheless justifiable as “a case of necessity” and not out of “any lack
of proper religious feeling.” The temple’s deity, they confidently asserted,
would look with indulgence on “any action done under the stress of war and
danger.” The act would be unlawful, the Athenians contended, only if there
had been no necessity for the occupation.
Having defended their action at the temple, the Athenians then proceeded,
in turn, to accuse the Thebans of denying to them the traditional right of
burial of dead after a battle. The Thebans denied wrongdoing by contesting
Athens’s version of the content of the rule. The right of burial applied, they
asserted, only when the dead were located in their home territory (in this in-
stance, they were not). An invading force, such as the Athenian one, was en-
titled to recover its dead only after withdrawing from the invaded territory.
The Thebans, though, went on to propose a settlement: that they would
allow the burial of the Athenian dead, in return for Athens’s evacuation of
the temple. The Athenians refused this, on the ground that they were enti-
tled, as a matter of right, to the burials; consequently, they did not need to
give anything in return. The result of these negotiations was a stalemate.
Athens did not recover the bodies, nor Thebes its temple. (A few weeks later,
though, the matter was resolved, after a fashion: the Athenians were driven
out of the area, at which point a further request for the dead bodies was
granted by the now-victorious Thebans.)
Alleged violations of the laws of war were also invoked in 200 bc, when
an Athenian delegation sought the aid of the states of the Aetolian League in
an ongoing war against Macedonia. The Athenians (in the account of Livy)
told of the devastation of their houses and crops by invading Macedonians.
But they also pointedly conceded that tactics of that sort, while harsh, were
not actually unjust, “for there are . . . laws of war which are legitimate sanc-
tions, whether one avails oneself of them or suffers under them.” Quite dif-
ferent, however, was the alleged Macedonian practice of destroying religious
shrines and desecrating graveyards. These were acts that, in the Athenian
view, “polluted all laws, human and divine alike.” In the event, the Aeto-
lian League did enter the war on the Athenian side, but for reasons of strate-
gic self-interest and security, rather than of umbrage over legal or moral
transgressions.
A major contribution made by the Greeks in the field of international re-

lations was the practice of settling disputes between states by means of
arbitration. An early example occurred in the seventh century bc, when an
arbitration took place between Andros and Chalcis, and another between
Athens and Mytilene. In the sixth century bc, we know of a dispute be-
tween Athens and Megara over the island of Salamis, which was resolved
by arbitration. Later in that century, according to Herodotus, the duty to
arbitrate disputes in place of resorting to war was imposed onto the cities of
Ionia by their Persian overlords in Sardis, who issued an instruction to this
effect to the assembled representatives of the Ionian states. In the period
400–340 bc, six or seven arbitrations took place, with a considerable picking
up of the pace after that. In the third century bc, there were at least twenty-
one instances, and some forty to fift y in the century following.
As impressive as this Greek arbitration record was, its relation to interna-
tional law, in anything like our sense of the word, was somewhat tangential.
There does not seem to have been anything like a detailed code of interna-
tional law that was applied in these cases. The arbitrators appear to have
rendered their decisions simply on the basis of what seemed to them at the
time to be the equitable thing to do. “[A]n arbitrator goes by the equity of a
case, a judge by the strict law,” explained Aristotle, “and arbitration was in-
vented with the express purpose of securing full power for equity.” This
point is reflected in the very word “arbitration,” which comes from the Latin
arbitrio, meaning free will. (It is also cognate with the English word “arbi-
trary.”) So if by international law is meant merely a general sense of fairness
and impartiality, then modern international lawyers can justly claim the
Greek arbitration practice as a historical milestone. But if a more demand-
ing definition is sought—such as an actual transnational set of rules to be
applied relatively inflexibly—then we must still look to the future.
The Greeks produced less than the Chinese did in the way of general theo-
retical writing on international relations. But there is some evidence of sup-
port for a general idea that justice should be the governing factor in relations
between the states. The most eloquent presentation of the case for this was
by the Athenian political writer Isocrates in an oration “On the Peace,” writ-
ten in 355 bc. The immediate problem at hand was how Athens should react
to a revolt against it by four member states of the confederacy that it domi-
nated. Isocrates argued that Athens’s own interest would be best served if it
forswore policies of imperialism, coercion, and intervention into the affairs

of other Greek states. To some extent, his case was a utilitarian one, explic-
itly contesting the belief that acting unjustly would bring material advan-
tages. He urged that the virtues that were generally lauded in individuals
should be practiced by states as well in their foreign relations with other
states. “[I]t behooves states much more than individuals,” he argued, “to cul-
tivate the virtues and shun vices.” It is impossible to say whether Isocrates’s
eloquence was the decisive factor, but his advice was followed—Athens con-
cluded peace with the insurgent states and consented to their withdrawal
from the confederacy.
Preimperial Rome
Rome came under the strong cultural influence of the Greek states early in
its history, through contacts with Greek colonies in Italy. In the area of treaty
making, the Romans were very active, especially in their relations with their
Italian neighbors (although none of the actual texts has survived). The Ital-
ian core of the Roman Empire was in fact a network of alliance arrange-
ments. Sometimes, these placed the parties on a nonequal footing, in which
the other state party was required to “preserve the greatness (majestas) of
the Roman people” (in the common phrasing). A Roman lawyer of the first
century ad explained that the other party, although placed in a position of
inferiority, should nevertheless still be regarded as a free people. This was
presumably on the basis that it retained its internal self-government. More
commonly, Rome’s treaties with its Italian neighbors were at least formally
reciprocal. The typical arrangement was that each side would assist the
other in time of war and would take care not to allow enemies of the other to
pass through its territory.
In the area of warfare, Roman leaders tended to take the view, like so
many of their counterparts in other cultures, that a resort to war should oc-
cur only in furtherance of a just cause. Some interesting insight into Roman
perspectives on this point is provided by Livy in his account of Rome’s third
king, Tullus Hostilius. Although possessed of what the historian called a
“lust for action,” Tullus was also scrupulous about placing his belligerent
actions in the best possible moral and legal light. In about 670 bc, at a time
when Rome and neighboring Alba were engaged in constant mutual cattle
raids, each side sent envoys to the other to demand the return of stolen
property. Tullus’s team, however, acted with the greater dispatch, making
their request immediately on arrival in Alba. As expected, the request was
refused, so the envoys promptly declared war, to take effect after thirty days.
The Alban negotiators, in contrast, had tarried in Rome, enabling Tullus to
claim that Alba was the party in the wrong, because it had been the first to
refuse satisfaction. “Our prayer,” he proclaimed, “is that the guilty nation
may suffer all the misery of the coming war.” Lawyers may quibble over
whether guilt should really be determined by the matter of timing rather
than by the substance of the accusations. But the incident is a revealing indi-
cation of the existence of at least some concern for having right (of some
kind at any rate) on one’s side in going to war.
Questions of just causes of wars arose again about twenty years later,
when conflict broke out between the Romans and Sabines. Again according
to Livy’s account, each side claimed a grievance against the other. The
Romans alleged that some of their citizens, on a peaceful pilgrimage to a
religious shrine in Sabine territory, had been abducted. Not to be outdone,
the Sabines alleged that the Romans had arrested Sabine refugees who had
taken sanctuary in Rome. Livy’s account of Rome’s later war against
Veii in the wake of a violation of diplomatic immunities has already been
noted.
To Tullus’s successor as king, Ancus Marcius, Livy attributed the estab-
lishment of a regular procedure for declarations of war (borrowing the idea
from a nearby tribe). Cicero, the famous orator, author, and politician,
would later disagree on this point and give the credit to Tullus. But in all
events, a priesthood of persons known as fetials was established in Rome at
an early period, and a ritual introduced for inaugurating war. Briefly, it in-
volved the sending of an envoy from Rome to the frontier of the would-be
enemy state, where redress of some injury would be publicly demanded ac-
cording to “religion and justice.” If satisfaction was refused (as was expected),
the envoy would return to Rome to seek the opinions of the fetials as to
whether war should be declared. If the fetials expressly approved of the wag-
ing of “just and righteous war” over the issue in question—and it would ap-
pear that they always did—then one of their number would himself go to
the enemy’s frontier, bearing a spear. He would make a formal announce-
ment of the war—including the just cause that had given rise to it—and then
hurl the spear into the enemy’s territory, thereby officially inaugurating the
hostilities. Livy records the first use of this procedure as taking place around
625 bc, against the neighboring city of Latium.
It must not be thought that this fetial procedure went very far toward in-
volving a conception of justice in war making. For one thing, there are no
records of a request for war being turned down by the fetials. It may easily
be suspected that the whole process was a mere ritual rather than any rea-
soned debate about the lawfulness of going to war. Wars were apparently
regarded as being just simply on the basis of the Roman demand having
been refused—without undue concern over the legitimacy of that demand
according to some general principle of justice. It will also be observed that
the enemy side played no part whatever in the process—save to receive the
ultimatum, which they were expected to refuse. In the course of time, the
fetial procedure fell into disuse, as Rome’s wars began to be waged against
faraway states, so that the fetial’s journey to the frontier became infeasible.
The fetial process, however, did incorporate elements of just-war thought
in its requirement that redress be demanded for some kind of substantive
wrong on the part of the enemy-to-be. This reflected a general Roman opin-
ion that, when war was resorted to, there had to be some plausible, objective
justification. Polybius, the Greek historian of the second century bc, reports
that the Romans habitually “paid great attention” to ensuring that their
stated reasons for going to war “would appeal to foreign nations.” But he
was well aware, too, that the public explanations were sometimes mere pre-
texts for what were actually acts of policy. In such cases, formal justifica-
tions (of greater or lesser credibility) were seldom difficult to find. Self-
defense claims were common. Other wrongs, or alleged wrongs, included
mistreatment of envoys, destruction of sacred places, refusal of extradition,
offenses against allied powers, and breaches of treaties (such as defections
from an alliance).
A striking example of the lengths to which Romans would go to ensure at
least the appearance of justice in war making occurred in 196 bc, when
Rome sought to take military action against the Boeotian League in Greece.
The Roman statesman and general Titus Quinctius Flamininus accused the
league of complicity in attacks against Roman soldiers in Boeotia. In their
defense, officials of the league maintained that these acts had been committed
by private bandits without official support. Nevertheless, Flamininus de-
manded compensation of five hundred talents for the injuries and dispatched
military expeditions against Boeotia. (A talent was approximately about
thirty kilograms of silver.) But he also summoned representatives from two
of Rome’s allies, the city of Athens and the Achaian League, to confirm that
he was waging a “lawful and rightful war.” As it happened, the two allies
ended up mediating a settlement of the dispute, with Flamininus accepting
a payment of only thirty talents instead of five hundred.
There is evidence, too, of palpable misgivings on the part of Roman politi-
cal leaders when wars were launched without any credible justification. Per-
haps the most striking example was the invasion of Parthia by Marcus
Licinius Crassus in 53 bc. This expedition was widely regarded as having
been undertaken without a just cause. It is perhaps all too appropriate,
then, that it ended in a disastrous defeat for Rome, with Crassus himself
among the dead. It was said by some that the victorious Parthians afterward
poured molten gold down the corpse’s throat, as a form of posthumous tor-
ture befitting a man of prodigious wealth.
Expanding Horizons
It was inevitably more of a challenge for lawlike behavior to spread outside

of regions where there was a preexisting degree of cultural unity. For a start,
there were practical difficulties, such as the comprehending of foreign lan-
guages. There was also an important conceptual barrier: the difficulty of
accepting that peoples who were altogether beyond one’s cultural horizon
could or should be entitled to equal treatment, on some kind of objective
basis, with familiar neighbors.
There was, in other words, a great conceptual leap to be made, to a belief
in the existence of a single font of justice or source of legal obligation that
would be recognized transculturally. The common belief was that rulers
could be placed under legal obligations only by their own deities, and not by
some transcendental, transreligious entity that had all the peoples of the
world under its watchful jurisdiction. Even the Jewish Yahweh was the god
of his chosen people only, not of the world at large. His power might extend
over the whole world, but his ability (or inclination) to impose binding obli-
gations was confined to his Chosen People.
The attitude of the Greeks illustrates the position all too clearly. Prior to
the conquests of Alexander the Great, there was scarcely a pretense that the
noble ideas of Plato or Isocrates would apply to relations with non-Greeks.
Plato made it clear that his precepts about moderation and justice in war did
not apply to conflicts with the barbarians. With them, there should be “war
to the death.” Aristotle was of a like mind, famously contending that bar-
barians, as inferior beings, were naturally fitted to be the servants, or slaves,
of the Greeks. There would appear to be no record of a Greek polis ever
concluding a treaty with a barbarian state.
An absence of respect or affection for exotic foreigners need not, however,
rule out the devising of de facto working relations on the basis of some
discernible shared values—that is, on the basis of something that could,
without undue distortion, be called the rule of law. This fact was vividly
demonstrated in the 1970s, when social scientist Robert Axelrod ran a con-
test in which various strategies of utility maximization, in the form of rival
computer programs, were pitted against one another. Two forms of conduct
were available—cooperation and defection—and no consultation or prior
agreement between players was allowed. The game was structured so that
mutually cooperative behavior was the best outcome—but the problem was
that an individual who played cooperatively risked being exploited when
playing against a defector. The challenge, in essence, was to devise a strategy
that best promotes cooperation while at the same time ensuring against ex-
ploitation by an opponent who might choose to defect at any time. Each
player’s preprogrammed strategy was matched against each of the others for
a duration of two hundred moves.
The winning strategy (or program), by a wide margin, was the simplest
one, which operated on the single principle of pure reciprocity—that is, to
be cooperative on the first move, and then mechanically to replicate, in each
subsequent round, whatever the other side did on the previous play. Even
when that strategy was employed by only one of the players, it produced the
highest score for its user. When both sides employed it, the results were
spectacularly good—a flawless record of mutual cooperation.
It should be noted that this happy outcome has nothing whatever to do
with morality or altruism. Each contestant had no goal except to obtain the
highest score for himself alone. But the optimal way of achieving this purely
self-interested aim is to settle into a pattern in which each side consistently
cooperates with the other, with no defections by either. And the best way of
bringing this about is a strategy of simple and straight reciprocity. Nor does
this striking result have anything to do with the biological makeup of the
rivals, which were computer programs rather than flesh-and-blood humans.
(Oxytocin was altogether absent from the proceedings.) The lesson seems
clear: that mutual cooperation on the basis of reciprocity, even between total
strangers and rivals, makes sense on purely rational grounds, without any
regard to backgrounds of shared moral or cultural values. There may be no
deity promoting law between nations—but there is evidence that reason
alone can do the job every bit as effectively.
The problem remains, of course, to find ways of putting this reciprocity-
based ethos into practice in the world outside of cyberspace, where factors
alien to those of computer programming play a large role. Language is per-
haps the most obvious barrier to be overcome. An interesting solution to
this challenge was related by Herodotus, in his description, in the fi ft h cen-
tury bc, of “silent trading” between Carthaginian merchants and some
unnamed North African tribes “beyond the Pillars of Heracles.” The Car-
thaginians would unload their cargo onto the beach, send a smoke signal to
the natives, and then retire to their boats. The natives would then inspect
the merchandise and leave a quantity of gold as their offer of a purchase
price. If the Carthaginians thought it a fair offer, they would take it and sail
away. Otherwise, they would patiently wait for the natives to increase their
deposit. The historian assures us that the system worked flawlessly. Never,
it would appear, was silence more golden.
At the level of state-to-state contacts, intercourse between parties from
different cultural areas has been found to be feasible in various ways. Treaty
making, for example, appears to have posed no undue difficulty, given that
treaties only involved back-to-back unilateral commitments by each mon-
arch to his own deities. In fact, the oldest treaty to have survived in its en-
tirety is one between Hattusilis III of the Hittites and Pharaoh Ramses II of
Egypt in about 1270 bc. It was inscribed in Egyptian hieroglyphics on a
wall of the Temple of Amun (the leading Egyptian god at that time) in Kar-
nak. A portable version of it exists in Akkadian (the lingua franca of the
Middle East at that time) on three tablets, two of which are in Istanbul and
one in Berlin. It was an impressively thorough arrangement, providing for
mutual nonaggression, combined with a defensive alliance, while also mak-
ing provision for extradition of wanted criminals (along with a promise that
extradited persons would be accorded humane treatment). Egypt agreed to
drop its claims to the state of Amurru (in the northwest of present-day
Syria), in exchange for being given trading rights in the area. The peace also
proved a durable one, bringing warfare between the two powers to a perma-
nent end.
In the manner in which dealings with outsiders were managed, the three
principal regions of Eurasia—India, China, and the Mediterranean world—
offer highly instructive contrasts that would be decisive for the shape that
international law would take throughout its history. Two of the three areas,
India and the West, gave birth to universal religious-cum-philosophical
systems, with grand visions of equality of all peoples. The third one, impe-
rial China, took a sharply different path, toward an explicitly sinocentric
outlook that relegated those who were culturally alien to the margins of
their moral world. But India and the West, too, even if they both sired uni-
versal religions, went on to take very different roads from one another.
India and Buddhism

The oldest of the world’s universal faiths is Buddhism, which was first pro-
claimed and promoted by Prince Gautama, from the ruling family of a
small state on the border of present-day Nepal and India, in approximately
the fift h century bc. In its earliest centuries, it was more of a philosophy
than a religion—and perhaps better yet regarded as a practical program for
personal salvation. Its most prominent institution was the sangha, or mo-
nastic system, which is said (probably correctly) to be the oldest human in-
stitution in continuous existence. Among the more noteworthy teachings
of Buddhism were nonviolence and nonaggression, even to the point of
eschewing animal sacrifice, which was so common a feature of religions
generally.
To some extent, Buddhism succeeded in appealing to sovereigns, at least
for a time. It was endorsed in the third century bc in India by Ashoka, a
ruler of the Maurya dynasty, the first of the major imperial dynasties in the
Indian subcontinent. The histories relate that, upon adopting the faith, Ashoka
abjured further conquests. Later, Buddhism was adopted as the national faith of
the empire of the Kushans, which was based not exclusively in India itself, but
in Central Asia, along the trade routes that had grown up since the first cen-
tury bc, linking China with Rome (albeit tenuously). It subsequently spread
primarily eastward along these trade routes (with some presence in the
West too). By the fourth century ad, after the end of the Han Dynasty, it had
become a major presence in China. In the seventh century ad, it was brought
to Japan under the patronage of the royal family, where it remains to the
present day as an integral feature of national life.
For all of its impressive achievements, however, including at least an in-
termittent appeal to governing classes, Buddhism cannot be said to have
made a major contribution to the development of international law. The
probable reason is that it was too otherworldly in its orientation. At least in
its early phases, it had a strongly individualistic focus, and its central theme
was the promise that those embracing it could attain release from the cares
and oppressions of everyday life. There was no doctrinal reason that the
eightfold way (as the Buddhist path to salvation was known) could not be
trodden by rulers. But Buddhism, in contrast to Christianity, did not be-
come the official faith of any major power for any extended period of time. It
was looked upon by Chinese officials with some wariness and was some-
times met with persecution (most notably during the Tang dynasty period
in the eighth century ad). For all of its presence in Japan, the Japanese na-
tional identity remains more closely bound up with its native Shinto faith
than with Buddhism. Most strikingly, Buddhism largely vanished from In-
dia itself.
Some would say, of course, that its relative lack of connection with gov-
ernment is a great strength of Buddhism rather than a weakness. From the
religious standpoint, that may very well be true. But it has prevented Bud-
dhism from having any major influence on the development of international
law. As a consequence of its inward-looking, contemplative ethos, and of its
focus on the metaphysics of salvation of the individual soul, instead of on
the details of everyday governance of peoples or relations between states,
Buddhism largely moved itself to the margins of the history of international
law.
China and the Wider World

With the unification of the various Warring States into a single central-
ized empire, the creative period of Chinese thought in the international
relations field came largely to an end. This took place in 221 bc, under the
aegis of the state of Chin. With this, the whole question of foreign rela-
tions within the Chinese world became obsolete. China would make no
further important contributions to the science of international law. The
very idea of a multistate system, in which the states were on anything re-
sembling an equal footing, was, from this time onward, fundamentally
alien to Chinese thinking. International relations henceforth took on a
radically different character, since the concern was now with relations be-
tween Chinese society as a whole and the various non- Chinese nomadic
states in inland Asia.
The Chinese had a ready contempt for these peoples. In the Chinese writ-
ten language, many names of foreign peoples had radicals for animals in
their designations, indicating the low esteem in which these peoples were
held. We must beware, however, of too hastily assigning to the Chinese (or
to any ancient peoples) racist attitudes of the kind that are now all too famil-
iar. The disdain for the barbarians was not—or at least not strictly or
theoretically—racial in character. It was cultural. In principle, there was
nothing to bar a person from one of the Central Asian tribes from educating
himself in the Chinese classics and adopting Chinese ways. It was the life-
styles and cultures of the nomads that were held in such contempt.
The prevailing Confucianist outlook prevented the Chinese from regard-
ing the various nations as independent equals or as fellow members of a
global moral community based on universal values. The effect was to make
the very idea of international law—meaning a law between independent
states—not merely difficult to entertain, but even impossible in principle. In
a world that is regarded as containing, ultimately, only one country or one
single system, there can hardly be any such thing as international law.
When the Chinese did have contact with their Asian neighbors, they
sought to enfold these foreign communities into their own national system—
even if that necessitated the imposing of certain legal fictions onto inconve-
nient reality. Foremost among these useful fictions was the receipt of “trib-
ute” from the barbarians. This took the form of gifts from the nomads in
conjunction with diplomatic visits. Viewed from the Chinese standpoint,

these gifts could be seen as reinforcing Chinese—and especially Confucian—
ideals of inequality and deference. Because, in the Confucian ideology, be-
nevolence was expected of an ideal emperor, it was not expected that China
would attempt to conquer the neighboring barbarian states or impose its
system onto them by force. It was sufficient that the barbarians, by dutifully
presenting their “tribute,” acknowledged China’s position of supremacy. As
an indication of China’s benevolence toward its rough-hewn neighbors, gifts
would be given in return.
From the nomads’ perspective, the presents to the Chinese could readily be
regarded simply as routine acts of courtesy, rather than as a sign of subjection.
Persons with exacting minds (such as lawyers) might find such an arrange-
ment to be frustratingly ill-defined. But that was part of its strength. It en-
abled both sides to save face. It was also very flexible, easily adaptable to
changing balances of power. It was not unheard of for China’s gifts to the
neighbors to exceed in value the “tribute” received from them. Even a sharp-
eyed observer would sometimes have struggled to decide who was really pay-
ing tribute to whom. An unsentimental realist would have little trouble con-
cluding that this relationship was really a subtle arrangement for buying
security, with the accounts readily capable of shifting in amount and direc-
tion over time. Be that as it may, the system seems, for the most part, to have
met the practical needs of both sides well enough. Precisely because the sys-
tem was so flexible and adjustable, it could be very long-lasting. In the case
of relations with Korea, for example, it continued into the late nineteenth
century.
The tribute system may be regarded as the principal outward manifestation
of the imperial Chinese attitudes toward international relations. It should be
appreciated, however, that reality often diverged fairly considerably from the-
ory. For example, in ad 783 and again in 822–23, the Chinese government
entered into treaties with Tibet on the basis of full equality of status of the
two parties. That is to say, the treaty was solemnly sworn by both sides and
accompanied by the negotiators’ smearing their mouths with animal blood.
There is some especially instructive evidence of Chinese concessions to
harsh political reality dating from the period of the Sung dynasty (the elev-
enth to the thirteenth centuries ad). In this period, three or four neighbor-
ing states were regularly treated by the Chinese as kuo, or states of equal
standing with China, while relations with other, lesser, countries continued
on the basis of the tribute system. The most important of these kuo states
was an especially formidable and well-organized people known as the Khi-
tan, on the Celestial Empire’s northern flank. In a peace treaty concluded in
1005, the Khitan state was treated as entirely the equal of China itself. In
fact, the treaty expressly provided for annual payments by China of silver
and silk to the Khitan rulers. An internal government memorial prepared
shortly after this treaty, surveying China’s foreign-relations position gener-
ally, reveals the Chinese to have been well aware of how precarious their
official claims to universal empire were. It was clearly perceived to be neces-
sary in practice to be flexible in dealing with other powers and to take due
account of prevailing power relations.
Even if these concessions to reality were necessary, however, they re-
mained distasteful to the Chinese. It is evident from internal government
records that the Chinese continued to regard their neighbors as inferior,
however powerful they might be at a given time. Treatment of foreign pow-
ers as equals, in other words, was regarded as a regrettable anomaly, and not
as a point of principle. As such, the practice was to be abandoned at the fi rst
available opportunity.
It is tempting to dismiss the Chinese official claims to universal rule as a
bemusing combination of bluster, hypocrisy, and self-delusion. But that would
be to miss an important point. It is more pertinent to regard the Chinese ex-
perience as a revealing demonstration of the way in which ideas can have a
significance of their own, even in the face of opposing material forces. Chi-
nese rulers may have been well aware of the de facto equal status of the major
Asian states of their borders. But the stubborn and continued denial of that
equality in principle constituted a firm conceptual barrier against the devel-
opment of an image of a world of independent states of equal legal status—
that is, against the very idea that would be at the core of later international
legal thought.
Instead of regarding the world as a congeries of equal and independent
states, the Chinese continued to think of it instead as, in effect, simply a
large-scale version of China’s own social system. Ideas of equality and inde-
pendence of states would eventually be developed. But not by the Chinese.
That major intellectual contribution would come instead from the Mediter-
ranean world.
Greece and the Birth of Natural Law

It has been observed that the Greeks had a consciousness of their own cul-
tural unity, notwithstanding their political divisions, and that the funda-
mental social division was not between the Greek states but rather between
the Greek world as a whole and the barbarians. This was true even of the
most enlightened Greek thinkers of the fift h and fourth centuries bc. “To a
Greek,” as Plato put it, “the whole Greek race is ‘his own,’ or related, whereas . . .
the barbarian race . . . is alien, and ‘not its own.’ ”
It was in Greece, though, that the seeds of an important change first be-
came evident. This was the development of a body of thought that became
known as natural law, which would become one of the most distinctive and
far-reaching contributions of Western civilization. It would run like a vein
through international law throughout its history, up to the present day. Its
roots lie in the ancient Greek belief that the workings of nature are not arbi-
trary or random, but instead exhibit—to those watchful enough to see it—
regularity and predictability. That alone did not make the Greeks (or their
successors) unique. What made them unique was their insistence that the
operations of nature could and should be, in some sense, a model for human
conduct—and even a source of legal norms.
At the core of early Greek thought on natural law was the belief that hu-
man laws and customs were divisible into two broad categories: practices or
rules that were universal throughout the human race, as distinct from those
that were peculiar to individual states or groups of states. Aristotle called
them special law and general law. Special law was “that written law which
regulates the life of a particular community.” General law, in contrast, com-
prised “all those unwritten principles which are supposed to be acknowl-
edged everywhere.” He went on to assert that “there really is . . . a natural
justice and injustice that is binding on all men, even those who have no as-
sociation or covenant with each other.” In time, the distinction often
came to be expressed in terms of laws derived from nature (physis in Greek),
as opposed to laws derived from human convention (nomos in Greek). This
fundamental distinction—which would later be denoted as one between
natural law and positive law—would have a very long life ahead of it.
In the period following Aristotle, two schools of Greek philosophy arose
that were especially noted for placing the primary emphasis on nature over
human convention: the cynics and the stoics. The cynics—the word means
literally “doglike” in Greek—resolved to live their lives exclusively according
to nature. They therefore did not regard themselves as in any way bound by
the peculiar conventional laws of any of the city-states. Their most promi-
nent figure, Diogenes, was famously at home in a barrel, shunning all of the
fripperies of then-modern life and claiming nothing more nor less than the
whole world as his city-state.
The stoics were much of the same persuasion as the cynics—though a
great deal more conventional in their lifestyles—in holding the laws of na-
ture to be of far greater consequence than the laws of man. They produced
a far larger body of systematic writing on that subject. In contrast to the
cynics’ focus on personal ethics and lifestyle, the stoics gave a great deal
more thought to cosmological questions. In fact, they were the fi rst school
of philosophy to place the entire universe (or kosmos) at the very center of
their thought. Ultimately, in their view, the entire human community must
be seen as one single outsize city-state of polis—as, in the Greek terminol-
ogy, a “world-city” or kosmopolis, from which our word “cosmopolitan”
derives.
The stoics went on to posit some very striking features of this universe.
For one thing, in keeping with mainstream Greek thought, they regarded
the universe not merely as a single entity, but even as a single living entity.
There was a single “breath of life” (or pneuma) that permeated the entire
universe, animating all living things—and in the process, binding all living
things into, ultimately, a single great universal organism. Th is great organ-
ism, like organisms in general, had a life cycle, unfolding over time in the
manner of an acorn gradually being transformed into an oak tree. But how
much greater was the whole universe than a single oak tree! For this whole
universe, there was ultimately one single body of law, comprising the innate
properties of the great universal organism. Some stoics believed, further-
more, that the organic life cycle of the universe was unfolding according to
a rigorously predetermined plan, with every action of every creature, for all
eternity, plotted out to the smallest detail. For those who are attracted to
grand systems characterized by interconnection and interdependence, sto-
icism can hardly be surpassed. Its grand (and slightly dizzying) universal
vision has never been equaled as an extravagant, baroque, all-encompassing
system of natural law.
On a slightly more down-to-earth note, some stoic writers thought that

the world had witnessed concrete steps in the direction of the realization of
the ideal of the world as a single city. Alexander the Great was sometimes
hailed (most memorably by Plutarch) as being inspired by such a vision.
This claim would appear to have been exaggerated by a considerable mar-
gin. But it was not difficult to see, in the course of Mediterranean history,
some trends that could clearly be interpreted in terms of stoic philosophy.
One of these was the gradual decline of the independent city-states and their
incorporation into ever larger groupings, first with the conquests of Alexan-
der in the fourth century bc, and then with the unification of the Mediter-
ranean world by Rome.
We must take care not to regard the stoics as champions of anything that
we would today call international law. They are much more accurately seen
as champions of world government, in their insistence on the ultimate unity
of the human race into a single polity. In this, they bore a resemblance to the
imperial Chinese—though with the difference that, where the Chinese saw
the world as (ideally) one single grand cultural system, the stoics regarded it
as one single great natural system. The stoic vision, in other words, did not
accord any inherently privileged position to Greek or Roman culture and
could therefore be said to be more radically cosmopolitan in character than
its Chinese counterpart.
For present purposes, though, two other aspects of their thought are worth
emphasizing, which would play a powerful role in the later development of
European thought—including the development of international law. One
was the universality of natural law. Natural law, on this thesis, was a compre-
hensively transcultural concept, applicable in full force to every culture and
civilization on earth. Moreover—and this is the second key feature—natural
law was the same for all historical time periods as well. It was, in short, eter-
nal as well as universal.
Rome and the Ius gentium

It was Rome, more than any other ancient society, that bequeathed a set of
ideas that would later metamorphose into international law in the later sense
of that term. To some extent, their thinking was borrowed (as usual) from
the Greeks. There has been much speculation as to the extent of stoic influ-
ence on Roman lawyers. But it may safely be said that there is nothing in Ro-
man law comparable to the grand universal organic stoic vision just outlined.
Roman lawyers were a considerably more practical lot than the stoic philoso-
phers and largely contented themselves with a far more Earth-bound picture.
Natural law, to them, was essentially what it had been to Aristotle: a set of
norms that were applicable worldwide and not simply to this society or that
one. The basic idea was aptly summed up by Cicero, in words attributed to a
speaker in a dialogue. Natural law (ius naturale) was described as “right rea-
son in harmony with nature”—as a body of law that was “spread through the
whole human community, unchanging and eternal.”
Alongside this ius naturale, the Romans devised something that was
largely their own invention. This was a body of law called the ius gentium. It
translates as “law of peoples” and sometimes as “law of nations.” But to avoid
possible confusion with other uses of these expressions, it is best to leave ius
gentium in its original Latin, since it did not really correspond to any kind of
law that is commonly recognized today, and since its meaning shifted sig-
nificantly over time (as will be seen).
The ius gentium, as devised by the ancient Romans, certainly did not cor-
respond to what would later be called international law. That is to say, it was
not a body of law which governed relations between fully independent states.
It was, however, a law of universal applicability, transcending the boundaries
of any and every individual state. More specifically, it was essentially a cor-
pus of private law, governing relations between individual persons who
hailed from different countries. One translation that has been given, for
a usage by Cicero, is “common rules of equity.” In the second century ad,
the noted Roman jurist Gaius described the ius gentium as “the common
law of mankind.”
The ius gentium first arose as a contrast to the ius civile (“civil law”),
which was the law of the Roman city-state, that is, Roman law in its true and
original sense. When Roman citizens had legal dealings with one another,
the ius civile was the governing law. There were instances, though, in which
Roman citizens had dealings with foreigners, and these, of course, became
increasingly common as Rome’s political sway grew ever greater. Similarly,
Roman courts were sometimes called upon to adjudicate disputes in which
both parties were non-Roman. It was for the resolution of these disputes in-
volving foreigners that the ius gentium was devised.
To the best of our knowledge, the first significant step in this process was
the creation of a new legal official in Rome called the praetor peregrinus (or
peregrine praetor) in 242 bc. The task of this official was to hear disputes
in which one or both parties were noncitizens of Rome. Since the civil law
of Rome could not be applied to noncitizens of Rome, the praetor peregri-
nus took to deciding these cases on the basis of what might be called gen-
eral principles of law. That entailed the identification of rules that were
common to states in general (or at least were thought to be). Once these
were identified, they would be applied to the dispute at hand. This corpus
of common or general rules of law, emerging from the adjudications of the
praetor peregrinus, became the ius gentium—the law of peoples in general.
It would seem that, in practice, this original ius gentium was chiefly con-
cerned with commercial transactions such as sales of goods.
A few words must be said about the relationship between the ius gentium
and natural law. They were alike in one highly important respect: that both
were universal in scope, in contrast to national legal systems, which applied
only to the individual states that promulgated them. By extension, it could
be said that natural law and the ius gentium were alike, too, in that both
were animated by a vision of the entire human race as forming, in some real
sense, a single community—a moral or ethical community in the one case,
and a legal one in the other. They were also alike in that, for both of them,
the primary application was to the everyday conduct of ordinary, private
individuals. Consequently, neither of them, in their initial stages, had any
strong connection to what would later be called international law.
At the same time, there were some important differences between the two
bodies of law. If the ius naturale was the distinctive creation of philosophers,
the ius gentium was the gift of lawyers. Where natural law was based on
high-minded principles of ethics or (in the stoic case) on abstruse systems of
natural philosophy, the ius gentium was distinctly practical and down-to-
earth in character. Its basis was human consensus, rather than the laws of
nature per se. In other words, the ius gentium was a man-made law, and
natural law was not. Natural law was, in some sense or other, part of nature
itself, part of the fabric of the universe—and, as such, no more a creation of
humans than was nature itself.
There was some divergence of opinion among Roman writers as to

whether the differences between natural law and the ius gentium were more
fundamental than the similarities. Cicero, for example—who was highly
knowledgeable about both philosophy and Roman law—apparently saw
little difference between the two. Writing in the first century bc, he specu-
lated that something on which all nations were in de facto agreement must
surely be deemed to be a law of nature. If this were so, then natural law
and the ius gentium must be, in reality, much the same thing in terms of
content, even if their definitions were different. This position was echoed, at
least implicitly, by the classical Roman legal writer Gaius, in the third century
ad. He characterized the ius gentium in a twofold manner, as “the law that
natural reason established among all mankind” and as the law which “is fol-
lowed by all peoples alike.”
The tendency of Cicero and Gaius to equate natural law and the ius gen-
tium did not, however, predominate. Instead, a different picture won official
support, in the form of inclusion in the Roman Emperor Justinian’s compre-
hensive compilation of Roman law in the sixth century. This alternate posi-
tion was articulated by the classical jurist Ulpian in the third century ad.
Natural law, he explained, “is not a law specific to mankind but is common
to all animals.” It was therefore not rooted in “natural reason” as it was for
Gaius, but instead was seen as a sort of innate, instinctive, biological feature
of the animal kingdom in general. The ius gentium, in contrast, was con-
fined to humans. Specifically, asserted Ulpian, the ius gentium was “that law
which all human peoples observe.”
What Ulpian did not explain was whether the ius gentium should be seen
as a subcategory of natural law—that is, as that portion of natural law which
was applicable uniquely to humans—or whether its content was altogether
separate from that of natural law. In all events, though, he was emphatic that
the two kinds of law were not identical. Ulpian helpfully provided some il-
lustrative examples. Into the category of natural law, he placed marriage,
along with the procreation and rearing of children. Into the category of ius
gentium, he placed slavery—carefully noting that, according to natural law,
all persons are born free.
From Hermogenian, a legal writer of the third or fourth century ad, came
the most detailed list of things included in the ius gentium. Rights of property
and practices connected with commercial intercourse were identified as
arising out of the ius gentium. In this respect, the ius gentium clearly had a
strong private-law flavor. In addition, though, Hermogenian held that the
ius gentium governed the establishment of public or political “properties”
(kingdoms and nations), as well as the wars that broke out between them.
Here we have, for the first time, a connection made by a professional lawyer
between the ius gentium and matters that would later be regarded as the
province of international law.
On the basis of these various clues from the Roman jurists, some gen-
eral observations may be safely offered. Natural law dealt with things in-
stituted by nature itself. It was the set of laws by which the natural world
operated—including universal laws of human behavior such as the forma-
tion of family units and the rearing of children. Humans had no realistic
choice in the adoption or rejection of this set of laws, any more than they
could accept or reject, say, the law of gravity. The ius gentium, in contrast,
was a body of law that was invented by humans for their own convenience.
It could therefore be added to or altered by human consensus over the
course of time.
This twofold legacy of natural law and the ius gentium was Rome’s dis-
tinctive gift to the history of international law. These would go through
many changes in the future (as will be seen in due course). But they would
constitute—even to this day—the very warp and weft of what international
law would become. It is somewhat ironic that the Romans—generally regarded,
with some condescension, as a coarsely practical people—should make their
greatest contribution to international law in the realm of ideas rather than of
practice. For Rome made no striking advances in the everyday techniques of
international law, comparable to, say, the Greek development of interstate
arbitration.
We must finally note how different were the paths taken by the two great
civilizations at the two ends of Eurasia—China and Rome. In both of these,
there was a certain belief in a global law. But the conceptions were differed
radically. The Chinese conception of world order was essentially that of a
world state with a single hegemon—the Chinese emperor. The Roman vision
was very different. In place of a benevolent universal ruler, it advanced the
more abstract, but ultimately more powerful, idea of an impersonal and
universal rule of law. Moreover, the Roman legacy of universal law, in both
of its incarnations—natural law and the ius gentium—was sharply distin-
guished from Rome’s own civil (or national) law. This divergence between
Chinese and Roman ways proved decisive. It would, eventually, determine
that international law would be a product not of China but of Europe. Medi-
eval Europe, however, would be no mere passive recipient of its classical heri-
tage. It would make important innovations of its own.
chapter t wo
Keeping Kings in Check
remarkable scene took place in the city of Lyon, in France, on July

A 17, 1245. A council of the Catholic Church was in session, at which
Pope Innocent IV recited a lengthy cata logue of charges of misconduct
against Emperor Frederick II of the Holy Roman Empire. They included
heresy, the seizure of papal lands in Sicily, various acts of oppression against
the church, and the employment of Muslims as soldiers—as well as keeping
a harem of Muslim concubines, guarded by eunuchs. Pope Innocent then
immediately proclaimed Frederick’s deposition as emperor. He was declared
to be stripped of all of his titles and dignities, and his erstwhile subjects in
his various realms (Sicily, Italy, and Germany) were absolved of all alle-
giance to him. It was a dramatic demonstration of how even the most
prominent rulers—Frederick II was renowned as stupor mundi, “the wonder
of the world”—could be subjected to punishment for misconduct.
Behind the scenes, however, the position of the pope was far from secure.
Although Frederick himself was not present, he was represented by very
able legal counsel (his chancellor Thaddeus of Suessa), who insisted that
there could be no condemnation without a public hearing before a judicial
panel, where the accused party would have an opportunity to answer the
accusations. Innocent—a prominent lawyer himself in addition to being
supreme pontiff—agreed to this, but only reluctantly. He knew that Freder-
ick was en route to Lyon. And he feared (on good grounds) that, when the
emperor arrived, he would turn the tables by taking a conciliatory stance
and thereby secure an acquittal from the council. To forestall this impend-
ing threat, Innocent hastened to pronounce the sentence before his enemy
could arrive.
Keeping Kings in Check 51
Moreover, Innocent was well aware that his pronouncement would not be
self-executing. Without the support of major powers such as the kings of
England and France, as well as of prominent subjects of Frederick, it would
be a mere empty gesture. Predictably enough, Frederick reacted to the news
of his deposition with outrage and contempt. He vowed that neither the pope
nor any church council could take his crown from him without a war. An
armed struggle duly proceeded between Frederick and the various contenders
for the crown (who had papal support). In the end, Frederick was defeated,
and the Hohenstaufen dynasty came to an end.
This story provides some interesting insights into medieval ways of
thought and action—as well as into key aspects of international law. Perhaps
the most distinctive feature of the European Middle Ages was the power
of the papacy—a monarchy with a transnational reach, but also with a fun-
damentally spiritual, rather than material, nature. The Catholic Church
certainly did not lack for earthly possessions. It possessed abundant lands
and great financial might. It even, from time to time, raised armies to fight
its various causes (as Innocent IV, for example, did in the conflict against
Frederick). But these various material resources were—at least in princi-
ple—in the ser vice of high ideals rather than of grubby power politics. The
ideals included, of course, the doctrines of the Catholic Church (heresy was
among the accusations against Frederick II). But they encompassed the rules
of natural law as well, which were an important part of medieval Europe’s
inheritance from the ancient world.
The significance of natural law for the development of international law
can hardly be overstated. In a nutshell, it was the idea that there is a body of
law above and beyond that of state governments. More than that, though, it
was the notion that this law actually constrains governments themselves,
just as it constrains ordinary people. Th is law was not, however, always self-
evident, and it was never self-executing. To some modest extent, these short-
comings could be dealt with by the Catholic Church. It possessed highly
learned men who could expound the content of the law, and it had various
spiritual weapons that it could wield against evildoers in high places. Medi-
eval Europe accordingly had extensive experience in the defining and en-
forcing of universal standards against governments.
What medieval Europe did not have was a conception of international
law in our modern sense, as a law applying specifically to relations between
independent sovereign states. Far from deploring the juridical poverty of

our medieval ancestors, however, we should instead admire their bold-
ness. For in some ways, their version of international law was more ambi-
tious by far than our own. They envisaged a world in which the rule of law
made no concessions to even the mightiest of monarchs—and in which
those monarchs were accorded no privileged position in draft ing the laws.
Emperors and kings could no more alter the strictures of natural law than
the fabled King Canute could command the tide to recede. Later interna-
tional law would be much more compliant to the demands of power, in
that it would allow the rulers of states to fi x the contents of the law as they
chose.
Underpinning natural law—as in the preceding classical age—was a pow-
erful sense of an ultimate moral unity enveloping the whole of mankind.
This sense was even stronger in the more restricted area of Western Europe,
where the Catholic Church held sway. There was variety aplenty, to be sure,
in medieval Europe. But pulling against it, at all times, were forces of uni-
versality. With the passage of time, local interests would gain ground. Plu-
ralism would become a core feature of Western civilization—and of the in-
ternational law that it produced. But the vision of unity would linger long,
principally in the form of natural law. It is with us still.
Forces of Unity
Medieval man had a touching faith in the ultimate unity of the world. This
was in the face of considerable evidence to the contrary, since medieval so-
ciety veritably teemed with diversity. Particularly with the spread of the
feudal “system,” Christian Europe came to present a picture of the most be-
wildering fragmentation and variety. But for all of this, there continued to
be a stubborn loyalty to certain key forces of unity. Three were of particular
importance from the standpoint of international law. In ascending order of
importance, they were the empire (i.e., the Holy Roman Empire), the pa-
pacy, and natural law. To the naked eye, natural law must have appeared the
weakest by far—a wispy, philosophical sort of thing, with little or no impact
on real life. It is one of the striking facts of Western civilization, though, that
this intellectual construct would prove more durable as a unifying force
than either church or empire. In its role as the foundation of international

law, its consequences are with us still.
We will look briefly first at the empire and the papacy, and then in some-
what more detail at the more salient features of natural law, and the impor-
tant changes that it underwent during the Middle Ages. These changes en-
tailed some significant rethinking of the relationship between natural law
and the ius gentium. There will also be an exploration of the foremost
achievement—at least in intellectual terms—of medieval international law,
the development of just-war doctrine. There will also be an all-too-brief look
at the practical, and extensive, body of law known as the ius commune,
which also became a fertile source of rules for the later law of nations.
Universal Empire
The collective medieval psyche was obsessed by the glorious memory of the
Roman Empire, and it is not hard to see why. The empire appeared to have
been incomparably greater and grander than the scattering of rude statelets
that succeeded it. The city of Rome contained—or even constituted—the
most striking evidence of this. With its population reduced by some 90 per-
cent from imperial times, those remaining seemed to be living, huddled in
squalor, amid a forest of spectacular buildings and monuments, all falling
steadily into ruin. It was small wonder that people pined for the great days
of the past.
When Charlemagne was crowned emperor in Rome in 800, some regarded
this as a reconstituting of the Roman imperial line. Charlemagne and his
Frankish successors, however, made little of their ties to ancient Rome. It was
only when the empire was reconstituted yet again, by the German ruler Otto
I in 961, that the real continuity with the Roman Empire began to assume
legal and political significance, with regular installations of the emperors in
Rome by the popes of the day. That the Roman emperor—who became offi-
cially “Holy” in 1157—was the foremost ruler in Western Europe was not
doubted. But the claims that were advanced on his behalf were truly star-
tling: of universal dominion.
It was canon lawyers who first asserted that the Holy Roman emperor was
the lord of the entire world (dominus mundi) and that, as such, he possessed
a residual de jure sovereignty over the entire world. Rulers of the various
kingdoms, on this thesis, possessed merely de facto power, which they had
somehow wrested from the grasp of the universal monarch. A prominent
champion of this theory was the eminent Italian Bartolus of Sassoferrato,
one of the most famous and learned lawyers of the Middle Ages. He lived in
the fourteenth century, teaching civil law (i.e., Roman law) at the Universi-
ties of Pisa and Perugia and also serving as a judge for some five years. Bar-
tolus insisted that the Holy Roman emperor was, de jure, the ruler of the
whole world—even though, admittedly, this rule was not effective de facto
over large portions of the earth.
The best-known champion of the theory of universal imperial dominion
was not, however, a lawyer, but a famous literary figure from the generation
preceding Bartolus: Dante Alighieri of Florence, author of the Divine Com-
edy. His short work called De Monarchia (On Monarchy), written around
1314 (at about the same time as the Comedy), was a sort of manifesto of the
principle of political univeralism. “[U]nity seems to be the root of what it is
to be good,” he pronounced, “and plurality the root of what it is to be evil.”
On that basis, he contended that mankind constitutes a single society that
should be ruled “as one whole by one ruler.” And that ruler should be the
Roman emperor.
Dante’s vision was not, however, of a wholly monolithic global state. The
supreme world sovereign, he conceded, would not deal with “trivial deci-
sions in every locality.” The obvious reason was that “nations, kingdoms and
cities have characteristics of their own, which need to be governed by differ-
ent laws.” The supreme ruler was therefore pictured as a kind of general
guardian of universal values, which transcended the local laws of the indi-
vidual states. “[M]ankind is to be ruled by [the supreme ruler],” Dante pos-
ited, “in those matters which are common to all men and of relevance to all,
and is to be guided toward peace by a common law.”  The hope, then, was
that this universal rule would take the form of guidance from the supreme
monarch, which would be dutifully received and accepted by the various
national princes.
Even as Dante wrote, there was no serious possibility of his ambitious
dream being realized. Hopes for a unified world, if they were to have any
chance of success, would have to take other forms. Two other alternatives
were on offer: a spiritual one in the form of the papacy and a legal one in the
form of natural law.
The Papacy
In the Roman Catholic papacy, the European Middle Ages possessed some-
thing that the world would not see again until 1945: a transnational author-
ity whose legitimacy was widely recognized and which possessed certain
powers to inflict various forms of punishment (or sanctions) onto rulers
who were in breach of their legal obligations. An early illustration of this
power at work occurred in the late fourth century, when Archbishop Am-
brose of Milan personally barred Roman Emperor Theodosius I from enter-
ing the cathedral church of Milan because of a massacre committed by im-
perial troops for which Ambrose held the emperor responsible. Some of the
powers claimed by the popes were exercisable by the Catholic clergy gener-
ally. The most notable of these was the power to excommunicate named in-
dividuals—to cut them off from contact with other members of the faith
and to deprive them of their rights within the church.
The power of excommunication was exercised against a number of rulers
(and would-be rulers) in the course of the Middle Ages. In 1196, for exam-
ple, Pope Celestine III summarily excommunicated King Alfonso IX of
León for enlisting Muslim allies in an invasion of Castile. Pope Innocent III
(1198–1216) made liberal use of this weapon. In 1209, he excommunicated
King John of England (in a dispute over candidates for archbishop of Can-
terbury). The following year, he did the same to Emperor Otto IV. This act
contributed to Otto’s replacement as emperor by Frederick II—who would
later himself be deposed by Innocent IV at Lyon in 1245. Long before that
event, in 1227, Frederick had been excommunicated by Pope Gregory IX for
excessive dilatoriness in embarking on a crusade to the Holy Land. In 1324,
Pope John XXII, playing an active role in a dispute over the emperorship,
excommunicated one of the claimants, Louis of Bavaria.
Ecclesiastical sanctions also included interdicts, in which church ser vices
could be withheld from an entire area. These could be regarded as spiritual
counterparts of the later practice of economic sanctions. In 1141, Pope In-
nocent II, locked in a quarrel with King Louis VII of France (over a church
appointment), laid an interdict on any area that sheltered Louis. The same
fate befell the kingdom of León in 1197 at the hands of Pope Celestine III,
after King Alfonso IX’s marriage to a second cousin (contrary to church
law). In this area, too, the most active pope was Innocent III. He placed the
kingdom of France under an interdict in 1200, the Duchy of Normandy in

1203, and the Kingdom of England in 1208–14. King John of England, how-
ever, retaliated by confiscating church properties within his realm.
The popes also claimed a general right of intervention to prevent or coun-
teract the commission of sin. In technical terms, this was known as a juris-
diction pro ratione peccati. Innocent III claimed this power in 1204, in a
decretal entitled Novit Ille. The immediate context was a complaint by King
John of England against King Philip II of France for breach of a peace treaty
between the two kings. On the basis of this general right “to recall [sinners]
from vice to virtue,” Innocent assumed jurisdiction over the dispute.
Analogous to the jurisdiction pro ratione peccati was the claim by the
popes to a general right to prevent or punish violations of natural law. This
was, in a way, the most interesting of all of the powers claimed by the pa-
pacy, since it clearly amounted to a claim of truly universal jurisdiction for
the popes—over pagans and infidels as well as Christians. This thesis was
advanced in the thirteenth century by Innocent IV.
Perhaps the most sweeping claim made by the popes was to an inherent
superiority over secular powers in general—entailing a right to depose rulers
for misconduct. This right was first asserted in systematic form by Pope
Gregory VII in the eleventh century—and soon put to the test. Gregory
twice took action against Holy Roman Emperor Henry IV, both times com-
bining the sanctions of excommunication and deposition. The first occasion
was in 1076, when Gregory deposed Henry as emperor, with a separate act
of excommunication following shortly after. Henry countered by purport-
ing to depose Gregory as pope. On this occasion, Henry yielded and made
his famous journey to Canossa to plead for, and receive, forgiveness and re-
instatement from the pope. Henry’s need to deal with a Saxon rebellion in
Germany seems to have provided a large part of his incentive to mend fences
with Gregory. Soon afterward, when Henry had shored up his position
within the empire, there was another falling-out between the two, with a
second excommunication and deposition by Gregory in 1080. This time,
there was no show of humility on Henry’s part. He responded by driving the
pope out of Rome.
Later popes followed Gregory’s lead, or at least attempted to. In 1206,
Pope Innocent III deposed and excommunicated Count Raymond of Tou-
louse for giving support to heretics. It has been observed that Innocent IV
performed the most dramatic deposition of all—that of Frederick II in 1245

at the Council of Lyon—although it only became effective after some years
of warfare. Frederick was not Innocent’s sole target at that gathering. He
also pronounced the deposition of King Sancho II of Portugal for failure to
provide appropriate protection to Catholic clergy in his country. In this case,
too, the action became effective only after Sancho’s military defeat and over-
throw by rival Portuguese factions.
An alternate device that popes could employ was to effectuate a de facto
removal of rulers from power by wielding a power to grant dispensations
from oaths—including oaths of loyalty by subjects to sovereigns. This had
been the means by which Pope Zacharias was said to have forced the last
Merovingian king from the French throne in the eighth century. Later, in
1324, Pope John XXII’s action against Louis of Bavaria included a general
instruction to his subjects to cease their obedience to him. This power could
also be exercised in support of monarchs. In 1215, for example, Pope Inno-
cent III (now reconciled with King John of England) sought, in effect, to an-
nul the English Magna Carta, by absolving King John of his oath to observe
it. This was partly on the ground that it had been extracted under duress, and
partly because it was prejudicial to John’s lawful rights as monarch.
The high point of assertion of the papal claims over secular monarchs
came with the pontificate of Boniface VIII at the end of the thirteenth and
beginning of the fourteenth centuries. So assertive was he that it was ru-
mored (quite possibly apocryphally) that, during the Jubilee of 1300, he ap-
peared decked out in the imperial purple of the Roman emperors. Be that as
it may, he did issue a bull in 1301 entitled Ausculta fili (“Give ear, my son,”
referring to King Philip IV of France), which asserted the universal jurisdic-
tion of the popes over all kings. Philip IV, however, ostentatiously refused
to “give ear” as ordered. Several years later, in 1304, he forestalled a bull of
excommunication by arranging for the storming of the papal quarters and
arresting of Boniface. Boniface managed to escape but died several weeks
later.
On many occasions in the Middle Ages, popes played the less confronta-
tional role of arbitrator in disputes between states. Since these generally did not
involve claims to jurisdiction over secular princes, they led to comparatively
little controversy. But here too, the record of success was a mixed one. In the
late eleventh century, Pope Urban II mediated between Holy Roman Emperor
Henry IV and the king of Sicily (who was a feudal dependent of the pope).
His successor, Pope Pascal II, succeeded in reconciling the king of Aragon
with his enemies. In the course of the twelft h century, the papal curia did
impressive business in this line.
An especially active pontiff in the arbitration field was (not surprisingly)
Innocent III, in the early thirteenth century. He adjudicated conflicts in-
volving Portugal, Aragon, Poland, Armenia, and even the Eastern Ortho-
dox states of Bulgaria and Serbia. He also succeeded in reconciling Philip of
Swabia and Otto of Brunswick with one another. At the time of his death in
1216, he was en route to a negotiating session in an attempt to resolve various
disputes between the cities of Pisa and Genoa. It was therefore with some
justification that Innocent—never modest in making claims for the papacy—
pronounced the pope to be “the sovereign mediator upon earth.” His suc-
cessor, Honorius III, continued the tradition by arbitrating a dispute between
France and Aragon.
The sovereign mediator was not always successful in performing his use-
ful task. Pope Gregory VII, for example, was unable to stop Kings Philip I of
France and William I of England from coming to blows. Attempts by Popes
Alexander III and Celestine III in the twelft h century to reconcile England
and Scotland were similarly unsuccessful. Nor did papal attempts to bring
an end to the Hundred Years War between France and England in the four-
teenth and fifteenth centuries bear fruit.
There was some support for the contention that states were actually under
a legal duty to submit their disputes to papal arbitration. This thesis was
supported by Alanus Anglicus, a canon-law scholar from England (or pos-
sibly Wales) who taught at the University of Bologna in the period around
1190–1215. But he conceded that the idea did not command universal as-
sent. Rulers, moreover, tended to resist it. This was instructively illustrated
in 1296, when Pope Boniface VIII ordered Kings Edward I of England and
Philip IV of France to come before his tribunal in Rome for the settlement of
a war in which they were engaged at the time. They refused to obey. Two
years later, they did agree to submit to papal arbitration—though making it
very clear that they were doing so as a matter of their own choice and not in
obedience to a papal command. To make sure that there was no room for
misunderstanding, they pointedly designated their arbitrator not as Boni-
face but rather as Benoit Gaetani—to emphasize that the pope would be act-
ing in his personal capacity as an individual and not as the incumbent of the
Holy See.
It is apparent, from the experiences of Boniface VIII and other pontiffs,
that the actual influence of the papacy at any given time was heavily depen-
dent on local circumstances and power configurations. Apart from the
empire and the papacy, though, there was a third universalist force, which
purported to constrain the conduct of wayward rulers—and, incidentally, of
ordinary people, too. That was natural law. It was certainly less visible than
either empire or papacy. It sported no purple robes or scepters or tiara. It did
not pretend to possess any enforcement power. To many, it existed only in
the vaporous outpourings of scholars. For the development of international
law, however, it had a greater impact than either the imperial throne or the
chair of St. Peter.
Natural Law—and Its Auxiliaries
Between natural law and the Christian religion, there was a certain wari-
ness. To contend that natural law was an adjunct of the Christian faith is
very wide of the mark. Natural-law thought long preceded the advent of
Christianity and was, in its inception, wholly a product of classical (i.e., Greek
and Roman) civilization. It is impossible to overstate the importance of this
point. Natural law was not religious either in content or origin, nor did the
Christian faith have any privileged status within it. It was a law for the entire
world at large, transcending the enormous diversity of the various human
societies. At the same time, it is true that only Western European civiliza-
tion devised such a body of thought. Indeed, natural law deserves to rank
highly among the most distinctive features of Western civilization. What
should be carefully appreciated, though, is that, even if the origin of natural-
law thought was thoroughly and distinctively Western, the content of the
law was held to be applicable worldwide. Natural law, in short, was a radically
cosmopolitan, universalist corpus of thought.
In this important respect, European civilization was sharply different
from other societies. China had no such conception of natural law in the
sense of a body of law applicable equally to all societies. The Chinese view
was that China’s own society was innately superior to all others, and hence
that other societies were to be evaluated according to how nearly they con-
formed to Chinese ways. It will be seen that much the same ethos prevailed
in the Islamic world, where the one body of law was held to govern the true
believers, with infidels left to their own devices—and with no “master law”
governing both.
It has been observed that the stoic version of natural law, which had pre-
vailed in classical times, had been strongly organicist or animistic in char-
acter. That continued to be the case long into the European Middle Ages. It
can readily be detected, for example, in the common medieval ideal of a
thoroughly integrated society—with an image of an organism as its leading
metaphor. Just as the various organs and tissues of a living creature are
united into a single, complex, cooperative system, so was the medieval so-
cial and political body seen to be made up of a great diversity of classes, oc-
cupations, skills, and so forth—all ultimately working together to produce
(ideally) a harmonious social system. This organic image of an integrated
and cooperative social order was set out most vividly in the twelft h century
by the English writer John of Salisbury, who likened the head of the body to
the prince, the heart to the senate, sensory organs to provincial governors,
the hands to soldiers and civilian officials, and the feet to agriculturalists
and craftsmen. At about the time of John’s writing (in 1159), however, a
new conception of natural law—which we will designate as the rationalistic
one—was gaining ground and would be the dominant one for many centu-
ries to come.
Natural law was not, however, the sole set of universalist norms at work in
European society—nor even, in practice, the most important one. There
were two other bodies of law that were, so to speak, closer to the ground,
more closely connected to the everyday concerns of people in their social
lives. One of these was the ius gentium, an inheritance from ancient Rome.
The other was something called the ius commune, or “common law,” which
was a specifically medieval invention. It was basically an amalgam of Ro-
man law and the canon law of the Christian Church. From these sundry
conceptual raw materials, modern international law would (eventually)
emerge.
A New Natural Law

The new natural-law perspective that arose in the high Middle Ages does
not have a widely recognized label. In the interest of a simple description, it
will be referred to as the rationalist approach. It was associated to a great
extent with the medieval discovery (or recovery) of the works of Aristotle.
This is evident from the fact that the Dominican Order of monks provided
the leadership in both of these areas—with Thomas Aquinas as the leading
figure. In fact, the two features of severe rationalism, coupled with the
dominant influence of Aristotle, became the hallmarks of medieval scholas-
ticism in its most developed form.
Aquinas, an Italian who lived in the thirteenth century, was actually a
transitional figure in that he acknowledged that the fundamental natural-
law obligation to do good and avoid evil was innate in humans. But the abil-
ity to draw conclusions from this core principle required the employment of
reason in a manner analogous to a geometrical demonstration. A crucial
feature of natural law in its rationalist guise was that it was altogether inde-
pendent of the will or command of God. God himself was as powerless to
alter the truths of natural law as he was to play about with the truths of
mathematics. By the same token, natural law could not be the property
of any single culture, civilization, or religion—any more than the truths of
mathematics could be. This new rationalist approach became the dominant
tradition in natural law in the Middle Ages. As such, it exerted a powerful
influence on international legal thought.
The rationalist perspective entailed a rejection of the older animistic im-
age of natural law as a kind of biological instinct, in the manner proposed by
Ulpian. Natural law, in the new conception, was no more “written in the
hearts” of men than were the Elements of Euclid. Natural law, in other
words, was now seen as wholly external to the human frame—as transcen-
dental in character, rather than as innate. Its contents are accessible to hu-
mans on this view, but only by way of disciplined study and reasoning, not
as mere everyday common sense. This new kind of natural law was there-
fore, by necessity, in the distinctive custody of watchful scholars.
The rationalist version of natural law retained certain important features
of the older, organicist, stoic outlook. The most important of these was that,
like its predecessor, it was not specifically, or even primarily, about relations
between political entities. It was primarily about the conduct of ordinary

persons in everyday life. Natural law was, however, relevant to international
relations, in that rulers were legally bound to observe its rules in their deal-
ings with one another, just as ordinary people were in their everyday lives. If
international law is to be seen, therefore, as a law specifically applicable to
the relations of sovereigns and states with one another, then it must be con-
cluded that the European Middle Ages knew no such law. But it must equally
be emphasized that the Middle Ages certainly did regard rulers as acting
under legal constraints in their mutual relations. It is just that the contents
of those constraints did not differ from those that were applicable to ordi-
nary folk.
In several respects, the shift from an organicist to a rationalist version of
natural law had some unsettling consequences. One was the impact on the
principle of the natural sociability of humans. It will be recalled that, to Ar-
istotle, sociability was a “natural impulse” of humans—hardwired into the
human biogram. It was automatically and inescapably part of the human
condition. Under the rationalist scheme, however, that confidence was in
danger of being lost. Aquinas salvaged it as best he could by simply positing
that the rules of natural law are compatible with “our natural inclinations”—
and that among these is “a natural inclination . . . to live in society” and “to
avoid giving offence to those among whom one has to live.” Natural-law
thought, therefore, even in its newer rationalist form, managed to retain the
traditional commitment to the principle of the natural sociability of hu-
mankind. The world is, in this picture, fundamentally harmonious and
orderly rather than chaotic and violent.
This alliance between natural-law thought and the principle of intrinsic
human sociability would continue to be a very solid one—to a large extent
enduring to the present day. It should be appreciated, though, that the two
are not really logically connected. This point would be demonstrated in the
seventeenth century by Thomas Hobbes, who accepted natural law while
brazenly discarding natural sociability. Hobbes, though, was one of na-
ture’s great contrarians. For the overwhelming part, natural law and natural
sociability traveled, at least de facto, in close harness.
Another disturbing effect of the shift from an organicist to a rationalist
picture of natural law was the implication that it had on the ius gentium.
The old idea of Ulpian, that natural law applied to the whole of the animal
kingdom, and the ius gentium to the human portion of it, was no longer ten-
able. In the rationalist scheme, natural law itself was confined uniquely to
humans because only humans possessed reason. What, then, was the dis-
tinction—if, indeed, any at all—between natural law and the ius gentium?
To this question, various answers were devised.
The Role of the Ius gentium

Concerning the relationship between the ius gentium and natural law, three
schools of thought emerged in the course of the Middle Ages. As they have
never acquired standard labels, simple descriptive terms will suffice. By way
of general introduction, it may be said that what differentiated the three was
a difference of opinion on how closely the two bodies of law were connected
with one another. The first theory, which we will call the “dualist” approach,
held the two bodies of law to be more or less wholly distinct. The second
school of thought, to be labeled the “substitution” theory, held the ius gen-
tium to be a kind of second-rate substitute for natural law. Finally, the “ema-
nationist” school (as it is being termed) held the two to be very closely con-
nected, to the point that the ius gentium was actually a logical derivation
from natural law. We will look briefly at each of these, because they cast very
long shadows into the history of international law. There will then be a closer
look at one noteworthy area where medieval legal thought on international
affairs reached its highest peak: medieval just-war doctrine.
Of the three schools of thought concerning the relationship between nat-
ural law and the ius gentium, the dualistic one posited the sharpest distinc-
tion. It held that the two bodies of law differed from one another in two key
respects. The first was that the ius gentium was a human creation, while natu-
ral law was not. The second key difference—and the one justifying the label—
was that the two bodies of law applied to different subject areas or spheres of
activity. Of the three theories, this one bore the clearest mark of the Roman
law origin of the ius gentium. In fact, it was basically an endorsement of Her-
mogenian’s position.
The foremost figure of the dualist persuasion was a Spanish ecclesiastic
and encyclopedist named Isidore of Seville, who lived in the seventh century.
He came from a prominent family, served as bishop of Seville for thirty-seven
years, and was instrumental in the conversion of the Visigoths from the
Arian variant of Christianity to the Catholic one. The universal reach of his
knowledge (by the somewhat modest standard of his time) was so impres-
sive that it later (much later) led to his being suggested as an appropriate
patron saint of the internet in the twenty-first century.
According to Isidore, natural law and the ius gentium resembled one an-
other in both being universal but in different respects. Natural law was re-
garded as being, by its very nature, inherently universal. It was applicable
everywhere by virtue of its intrinsic perfection. Broadly in line with the or-
ganic outlook of the stoics, Isidore held natural law to be universal by
necessity—that is, “by the instinct of nature” and not by “any regulation.”
This was broadly the opinion of Ulpian. The ius gentium, in contrast, was
universal in a different and lesser fashion—in what might be called an em-
pirical or statistical sense. That is to say, it was universal by virtue of the fact
that, de facto, “nearly all nations (gentes) use it.” What this conception
clearly implied—but which Isidore did not explicitly expand upon—was that
the ius gentium was a purely human creation. As such, it should be seen as a
product of human free will.
In addition, the two bodies of law applied to different subject areas.
Isidore helpfully provided some illustrations. Principles and practices aris-
ing out of natural law included the union of men and women in marriage;
children’s inheritance and education; the right of all persons to acquire any-
thing from “the sky, the earth, and the sea”; the duty of persons to return
things entrusted to them; and the right of self-defense (i.e., to use force to
repel violence). Things falling into the category of ius gentium included wars
(including the right to capture and enslave enemy troops), the right to oc-
cupy vacant territory, truces and peace treaties, the inviolability of foreign
envoys, and prohibitions of marriages between different races. The simi-
larity to the position of Hermogenian in the Roman-law Digest is clearly
apparent.
It will be observed that there is a basic difference between these two lists
of topics. Things covered by natural law pertain largely to the conduct of
individual persons, such as marriage, the bringing up of families, and the
fending off of assaults. Things falling into the ambit of the ius gentium, in
contrast, are activities of states, including various aspects of war making
and peacemaking. Isidore therefore went a very long distance toward giving,
as the realm of the ius gentium, topics that would later be taken, as a matter
of course, to be in the sphere of international law. Perhaps Isidore could be

the patron saint of that realm, as well as of the Internet.
Isidore’s dualist approach won some support from later writers. One was
Rufinus the Canonist, a bishop and jurist of the late twelft h century. “[T]he
law of nations (ius gentium) is one thing, natural law another,” he asserted.
The examples that he gave echoed those of Isidore. Other adherents of du-
alism included a number of the early scholars of Roman law in the eleventh
and twelft h centuries. On the whole, though, the dualist school of thought
lost favor over the course of the Middle Ages as compared to its two rivals.
The second theory—the substitution thesis—went back, like the dualistic
one, to the early Middle Ages. But where dualism bore palpable traces of Ro-
man law, the substitution theory showed evidence of Christian influence—
and specifically of the influence of the eminent Christian intellectual, Au-
gustine of Hippo, who lived in the late fourth and early fift h centuries. The
Augustinian influence is evident in the thesis that the ius gentium was a sort
of diluted or debased version of natural law, suitable for humankind in its
condition of woeful decline from an original state of grace (a topic of great
prominence in Augustinian theology). Where natural law in its fullest and
purest form had prevailed in the Garden of Eden, humans in their state of
sin must make do with a more modest version. But this debasement re-
ferred only to the content of the law, not to its nature. The effect, therefore,
was that the ius gentium was regarded as a form of natural law, albeit an
inferior one.
The substitution theory was invoked as an explanation for how it was that
the Holy Roman emperor—who was supposedly the dominus mundi—
patently ruled only a very modest portion of the terrestrial orb, with inde-
pendent realms of various kinds accounting for the rest. An explanation in
terms of the ius gentium was offered by Alanus Anglicus. He conceded that
“the ancient law of nations” (meaning natural law in its original form) had
allowed only one emperor for the whole world, but that “the division of king-
doms” had later been introduced by the ius gentium. An important feature
of this substitution theory is that it allowed the ius gentium to differ in con-
tent from natural law, at least to a modest extent. Care should be taken to
avoid thinking that the ius gentium could override or somehow repeal natu-
ral law. That was not contended. Rather, it was asserted that natural law was
sometimes in an inactive state, a sort of hibernation—and that during that
period of inactivity, the ius gentium would step in to fill the gap. The ius gen-
tium, then, was definitely inferior to natural law. In an ideal world, which
this one assuredly is not, there would be no ius gentium, but only natural law
in its full and wide-awake splendor.
The third school of thought—the emanationist one—posited the closest
connection between natural law and the ius gentium. It was the latest of the
three rivals to appear, and the one that most closely embodied the new ratio-
nalistic perspective. It regarded the ius gentium as flowing directly from
natural law. As such, it was not quite identical to natural law, but at the same
time was not altogether distinct from it either. This theory was supported by
Aquinas, although in somewhat different ways in two separate discussions.
In one treatment, he explicitly endorsed Ulpian’s thesis that natural law was
common to all living creatures and then went on to state that the ability to
derive conclusions from the initial propositions of natural law “by a process
of reasoning” was unique to humans. The ius gentium was then described
as the portion of natural law that was discernible only by reason and not by
instinct—meaning, in effect, natural law itself in its rationalistic form. In his
other discussion, Aquinas spoke of the ius gentium as being “derived from
the law of nature as conclusions from principles.” 
Despite some obscurities, Aquinas’s main point is clear enough. The ius
gentium is a man-made law, but only in the very restricted sense that it is
humans, rather than animals, who are able to employ reason and thereby to
discover what natural law requires in a variety of specific cases. The effect,
then, is that natural law comprises the broad general principles, and the ius
gentium the conclusions which logically flow from them. Employing a geo-
metric analogy, we would say that natural law corresponds to the axioms, and
the ius gentium to the theorems—with the two being, of course, intimately
connected by an unbreakable chain of hypothetico-deductive reasoning. On
this view, the ius gentium could never actually contradict natural law, for the
simple reason that it was a logical derivation from that law.
A rapid summary of the three schools of thought can be offered. The du-
alistic position stands apart from the others in holding the contents of natu-
ral law and the ius gentium to be different. An important consequence was
that this theory, alone of the three, gave full scope to humans to craft the ius
gentium as they wished, according to their free will. The other two theories
regarded the ius gentium as being an aspect of natural law. Consequently,
the two bodies of law were seen to deal with the same subject matters. The
two theories differed on the key point of whether the ius gentium rules could
ever differ from those of natural law. The substitution theory held that they
could. There would not, however, be an actual clash, because the ius gentium
rules were applied only when the pure natural law was in abeyance. The
emanation theory disagreed on this point. Because it regarded the ius gentium
as being a direct logical outgrowth of natural law, any possibility of disagree-
ment between the two types of law was ruled out, à priori, in principle.
In general, medieval writers tended to reject Isidore’s dualistic stance and
to favor instead a closer association between the ius gentium and natural
law. There was never a clear consensus as between the substitution and the
emanation theories. But it appears safe to say that the emanationist theory
probably had the greater support, consistently with the prestige and influ-
ence of Thomist thought in general. For present purposes, the chief point to
note is that, during the Middle Ages, the ius gentium was roped more or less
closely to natural law—with the result that its ability to live and breathe freely
was greatly restricted. It will be observed in due course that the ius gentium
would later be freed from the natural law’s tight grip—a development that
would mark the intellectual birth of international law as we have come to
know it. But that would not occur until the seventeenth century.
Just-War Doctrine
The crowning achievement of the ius gentium in the Middle Ages was just-
war doctrine—a body of law that stipulated when armed force could justifi-
ably be resorted to in order to put a stop to some kind of evildoing. This law
was part of the ius gentium in all three of the theories just identified. Ac-
cording to Isidore, war fell into the category of topics allocated to the ius
gentium. On the substitution view, war was seen as an institution of human-
ity in its postlapsarian state of sin. Even on the emanationist theory, just-
war doctrine would be best seen as the application of basic principles of natu-
ral law to the very special circumstances of a resort to armed force.
The initial concern of writers on the subject was to determine when, or
whether, it was permissible for an individual to resort to violence. This was
an especially difficult question from the standpoint of the Christian religion,
in light of the strong support given in the New Testament Gospels to an
ethic of absolute pacifism. The solution was provided, at least in outline

form, by Augustine: to interpret the scriptures as prohibiting only egoistical
resorts to force, for the furthering of one’s own ends. Using force in an altru-
istic manner, to promote the welfare of others, was importantly different.
On this thesis, Christians could be allowed to perform military ser vice for
the purpose of defending the Christian community as a whole against at-
tackers or oppressors. Even if military ser vice was not positively good in it-
self, it could still be praised as a necessary (if regrettable) burden imposed
upon worthy Christians by the depravity of the wrongdoers. This notion of
force being justified in the general public interest, for the fighting of evil,
formed the core of medieval just-war doctrine.
Augustine himself did not trouble to go beyond the articulation of this
basic thesis. But in the centuries that followed, the idea underwent some
considerable elaboration. The details of just-war doctrine were never en-
shrined in a specific pronouncement of the Catholic Church, so that a number
of variant versions were put forward. Nevertheless, broad agreement evolved
on a fivefold schema of just-war doctrine, first set out in the early thirteenth
century by Raymond of Peñaforte, a Spanish Dominican who taught canon
law at the University of Bologna. The five elements—all five which had to
be satisfied—may be identified briefly (in no special order).
One element was auctoritas. This meant that war could be waged justly
only by a sovereign or by a subject at the command of a sovereign. It could
not be done by subjects on their own initiative. A second element was
personae. This meant that certain persons were prohibited from participa-
tion in war, no matter how clearly just the cause was. Most importantly, this
meant that clerics were barred from belligerent activity. Third was the re-
quirement of res. This word, meaning simply “thing” in Latin, signified that
the war had to have a defined goal or purpose—that the “thing” being
fought over must be precisely identified. The clear implication was that,
once this defined goal was attained, the war must stop. This principle, then,
had the function of preventing a war from dragging on or degenerating into
a conflict driven simply by the mutual hatred of the parties for one another.
A fourth element of the schema—and in some ways at the very heart of the
just-war idea—was the requirement of iusta causa. This meant literally a “just
cause.” It should be noted that it meant a just cause in a strictly objective sense.
In the dispute over the res, the just side is the one with the stronger legal case.
It is not sufficient to fight in good faith, in the sincere belief that the law is on
one’s side. The law must actually be on one’s side, or the war is unjust. In legal
terminology, it would be said that there is strict liability on this point, mean-
ing simply that no allowance is made for subjective considerations such as
good faith. As a result, it was impossible in principle for a war to be just on
both sides. Wars were seen as inevitably just on one side and unjust on the
other, depending on which party had the law objectively on its side.
The fifth and final element of the schema was animus. This referred to the
subjective mental state of the combatant, though not to his opinion about
the justice of his cause. Instead, it was a requirement that a fighter in a just
war must do battle without personal animosity toward his foe. His battle
must be against wrongdoing as such, and not against the wrongdoers as in-
dividuals. Here is the reflection, in just-war theory, of the Christian com-
mand to love one’s enemies. A just war should be seen as an enterprise in
correction and instruction, and not in vengeance or bloodlust. War waged
for greed or glory or for love of violence is unjust, even if the requisite iusta
causa is present.
A couple of general observations are in order about this body of thought.
One is that it was, for all practical purposes, entirely nonreligious in char-
acter, even if its chief expounders were theologians, and even though the
initial impetus for its development had been the challenge posed by Chris-
tian pacifism. Just-war doctrine was, of course, compatible with Christian-
ity (most obviously in the principle of animus). But the religious allegiance
of the contending parties played no part in the general structure of the
theory.
It should also be noted that the central concern of just-war doctrine was
the permissibility of resorting to force, not the methods by which the hostili-
ties were conducted. It should also be appreciated that just-war doctrine
concerned the entitlement to take offensive action, in the sense of entitling
the just side to take the initiative by striking the first blow and inaugurating
the hostilities. A just war must therefore be carefully distinguished from
self-defense in the strict and narrow sense, which is the fending off of an
actual attack. This narrow right of self-defense was of vital importance, to
be sure—but it was treated in medieval writing not as an example of a just
war by a sovereign, governed by the ius gentium, but instead as the exercise
of a general human right accorded by natural law.
There were several important specific differences between just wars and
self-defense. One was that the just-war principle of auctoritas did not apply,
so that self-defense was available to ordinary subjects on their own initia-
tive. In fact, self-defense could even be exercised against a superior. The prin-
ciple of personae also did not apply to self-defense, so that even clergy were
entitled to defend themselves when assaulted. Finally, the right of self-defense
in the narrow sense was confined to warding off the attack. It did not autho-
rize punitive action against the attacker, as was possible in a just war.
Just-war doctrine must be seen as conservative in character, in the spe-
cific sense that it was designed for the vindication of existing rights. There
was no conception that a just war could ever be a means for the creation of
new rights that had not existed before. A just war was therefore, in essence,
what could be called a war of execution, meaning a war to enforce the law. It
could also be thought of as a police action. It was waged, ultimately, on be-
half of the rule of law as such, and not merely in the parochial interest of the
party waging it.
The just-war schema did not have explicit rules about peacemaking, but
the principles of res and animus placed some powerful constraints, if only
by implication, onto the just side. If the just side was fortunate enough to
triumph, then it was entitled to recover the res over which the war was fought.
But the just victor must go no further than that. He is only entitled to gain (or
recover) possession of that which was already his, in the eyes of the law, even
before the war began.
About the actual conduct of wars once they were under way, just-war doc-
trine had nothing explicit to say. Nevertheless, certain very broad principles
concerning the conduct of war did emerge as logical consequences of the
fivefold schema. For example, the element of res placed a limit, at least im-
plicitly, on the duration of the conflict (by requiring the fighting to stop once
the res had been attained). It also implied a limit on the quantity of enemy
property that could be captured: the just side was entitled to take only so
much as was necessary to satisfy its original claim, and no more. More sig-
nificant was the element of animus. Any fighter who possessed the correct
animus would refrain from committing any gratuitous or unnecessary vio-
lence against the enemy side, since the enemy soldiers were not, per se, the
real target. This implicit ban on the commission of gratuitous or unneces-
sary violence remains a fundamental principle of the laws of war to this day.
It is important to appreciate, though, that, for a very long time to come, this
implicit ban on purely gratuitous destruction was the only limitation on vio-
lence in wartime dictated by just-war doctrine. More specific rules—or at
least practices—on the conduct of war were devised in the course of time, as
will be seen. But they arose from sources other than just-war doctrine as
such.
It must also be appreciated that medieval just-war doctrine was (in mod-
ern terminology) radically asymmetrical in terms of the principles relating
to the conduct of war. Only the just side had any right to employ violence.
Any killing done by the unjust side was simply homicide, and any taking of
prisoners was kidnapping. For this reason, the unjust side had a legal duty to
compensate the just side for any damage that it infl icted in the course of the
conflict.
Another general point about just-war theory is that, by its nature, it left
little room for consideration of neutrality. It could even be said that neutral-
ity was flatly contrary to the spirit, if not quite the letter, of just-war thought.
The reason is easily seen. Since a just war was regarded as fundamentally a
conflict for the suppression of evil, neutrality could hardly be seen in any-
thing like a positive light. If anything, there was a duty on the part of all
rulers to lend a hand to the just side in its struggle against the unjust one.
This was not taken to the point of actually requiring other states to join the
hostilities. But other states were expected to do nothing that would further
the cause of the wrongful belligerent and to show partiality to the just side
whenever feasible.
One final general point about medieval European just-war theory should
be appreciated. It must not be supposed that the proponents of the doctrine
were so naïve as to think that the just side would always prevail in a conflict.
There were simply too many examples in history—not to mention in the
Christian Bible itself—in which evil overcame good on the field of battle.
Victory and defeat were determined by the vicissitudes of war (and perhaps
by the will of God as well), not by the legal merits of the dispute. The more
subtle, and important, point that follows on from this is that, if the unjust
side should happen to prevail in the struggle, it would not thereby obtain
any greater rights than it had prior to the outbreak of the hostilities. It was
never contemplated that mere might could make right. An unjust side that
triumphed in a war no more obtained a lawful title to the res in question
than did a highwayman to the property of his victims on the road. A key
consequence was that the just side was within its rights to renew the strug-
gle whenever it regained sufficient strength.
As impressive as medieval just-war doctrine was in terms of coherence, it
cannot be said to have had any great impact on the actual practices of states.
Then as now, persons holding the reins of power tended to concentrate much
more intensely on their personal or national interests than on the cerebral
musings of scholars. Nor was the quantity of writing about just wars very
large. For the most part, writers contented themselves with setting out the
basic principles much as has been done here. In terms of actual impact on
everyday medieval life, both natural law and its helpmate the ius gentium
were eclipsed by a third corpus of universal—or at least Western European—
law, known as the ius commune.
The Ius commune

For all of the prestige that natural law had—even when fortified by the ius
gentium—it should not be thought that the writing on the subject was very
detailed or systematic during the Middle Ages. The great age of systematic
exposition of natural law was far in the future—in the seventeenth and eigh-
teenth centuries. In the entire medieval period, there does not appear to
have been a single major treatise devoted to natural law as such (to say noth-
ing of the ius gentium). Writers such as Aquinas rested content with stating
the basic propositions of natural law (i.e., the axioms) and largely leaving it
at that. Natural law might therefore be regarded more as a grand symbol of
medieval universalism rather than an actual application of it to day-to-day
affairs.
For day-to-day life, a different body of law was devised, to which the bland
label of “ius commune” (or “common law”) came to be applied. In terms of
familiarity to modern audiences, the ius commune is very much the poor
relative of natural law and the ius gentium. This is unfortunate, because it
played a greater practical role in medieval legal life than either of its better-
known counterparts.
Although ius commune means “common law,” it must not be confused
with the English common law, which was a national law of England alone,
that is, a law that was “common” to the whole realm of England. In broadly
the same spirit, the ius commune was a law that was common to the whole of
Catholic Europe—but especially to the most developed part of that region,
which was Italy. As such, it was contrasted to the ius propria, the law of any
particular jurisdiction.
Two bodies of law contributed to the making of the ius commune. One
was Roman law, which was rediscovered by Western Europeans in the elev-
enth century, when the full text of Justinian’s Digest came to the attention of
scholars. The other main source was the canon law of the Catholic Church—
which itself was strongly influenced by Roman law while (broadly speaking)
placing a greater stress on substantive principles than on specific rules and
formalities.
If natural law and the ius gentium found their principal expressions in the
writings of scholars (meaning theologians and philosophers), then the ius
commune was the province of practicing lawyers and judges, whose task was
to apply these general principles to the myriad problems of human social
life. They did this chiefly in consilia, which were records of court proceed-
ings and judgments or opinions of lawyers on specific issues put to them.
These writings were, in the aggregate, enormously greater in bulk than the
various expositions of natural law. They have been, however, much less ac-
cessible to later scholars, since they were diff used throughout the chanceries
and archives of Europe. For this reason, the impact of the ius commune on
the later development of international law has been underappreciated (and
continues to await a full treatment).
It is, however, apparent that many of the principles employed by later writ-
ers in the natural-law tradition actually came from this source rather than
from the actual natural-law writing of the Middle Ages. Moreover, within the
ius commune, the canon law contribution to international law has been espe-
cially overlooked. Doctrines about papal superiority over secular rulers, for
example, were of canon-law origin. Much of diplomatic law and practice, too,
arose out of church practices, and hence out of canon law. So did many of
the specific rules that were devised concerning the conduct of war.
At the same time, though, it should be borne in mind that natural law
(and the ius gentium along with it) was, in principle, more cosmopolitan
than the ius commune, because it was applicable to, literally, the whole hu-
man race without any distinction as to culture, history, or religion. The ius
commune, in contrast, although it was a transnational law, was nevertheless
a European and Christian law, not extending to the furthest reaches of the
Earth.
Even within the bounds of the European Christian world, forces were at
work that tended to undermine the cosmopolitan and universalistic vision
of which natural law was the centerpiece. With the passage of time, these
would assume ever greater importance—and would (eventually) displace
natural law from its status as the foundation of international law. That pro-
cess would take a considerable time to bear its fullest fruit—it would reach
its high point only in the nineteenth century—but the beginnings are to be
found in the Middle Ages.
Unity Undermined
Challenges to the medieval universalist vision took place at various levels.

This occurred first, on a relatively small scale, in Italy with the rise of the
communes. On a larger scale were the transalpine kingdoms. Accompany-
ing this process, though connected only indirectly to it, was the rediscovery
of Aristotelian political philosophy, with its key notion that states or gov-
ernments are natural phenomena—and also are vehicles for the attainment
of the fulfi lling life. This was in marked contrast to the Christian idea of
government as being, at best, a necessary evil—an instrument for suppress-
ing or policing the basic depravity of the human character. Another impor-
tant feature of the Aristotelian picture of the state—also sharply at odds with
the Christian outlook—was the ideal of states as self-sufficient and firmly
independent of one another. In the course of the Middle Ages, this spirit of
independence gained ground, slowly but steadily, against the universalist
claims of both emperor and pope, first in Italy and then further afield.
Some (such as Dante) naturally regretted this process as one of degenera-
tion from an ideal of unity and integration. Others saw it as a sign of free-
dom and self-determination of peoples. In either event, the process set the
general shape of international law for many centuries to come. The central
problem of international law would not be how to enforce the command of a
global sovereign. Instead, it would be how to apply a general body of law
(such as natural law) to the activities of a welter of mutually independent
states.
The Italian Communes

The earliest distinctive sign of restive localism presenting a direct challenge
to universalism is found in the Italian communal movement, which began
in force in the eleventh century. Of the history of the communal movement
itself, only the barest outline can be sketched here. At the heart of the medi-
eval Italian commune, and virtually its defining feature, was an association
of persons united by solemn oath for the mutual protection and tenacious
defense of legal rights. The idea was to gather into the hands of the com-
mune as much legal power as was possible under the circumstances—legal
powers, that is, that were not subject to controls by any other party. The
commune, in other words, was an independent association. Over time, the
communes evolved away from their original status as associations of indi-
viduals and became territorial city-states very much on the model of the
ancient Greek polis. But the spirit of independence continued to burn
strongly. In their fiercely guarded independence and intense local patrio-
tism, the communes prefigured the much later development of nationalism
at the expanded levels of the larger nation-states.
In fact, the galaxy of communal governments that arose in northern Italy
can easily be seen, in retrospect, as a kind of dress rehearsal for later concep-
tions of the sovereign independence of states. Even at the time that they
arose, it was clear that they posed a serious challenge to medieval ideas of
unity—most immediately and directly to the legal integrity of the Holy Ro-
man Empire, in whose territory they were located. The Holy Roman emper-
ors accordingly made a heroic—though unsuccessful—effort to prevent the
communes from usurping the prerogatives of the imperial government.
Emperor Frederick I, most notably, in the second half of the twelft h cen-
tury made a determined attempt to reclaim imperial rights from the com-
munes. This occurred in 1158, at a conference called the Diet of Roncaglia,
at which he met with representatives of fourteen of the cities. It was one of
the great showcase legal events of the Middle Ages. Frederick had at his side
four prominent civil law professors from the University of Bologna, and
each of the cities had two legal representatives. The lawyers, reflecting their
Roman-law training with its strong bias in favor of imperial claims, all sided
with Frederick. But the communes continued to resist what they regarded as
imperial encroachment on their prerogatives. They formed a military league
that inflicted a decisive defeat onto Frederick’s imperial forces at the Battle
of Legnano in 1176.
In 1183, a full peace arrangement was concluded at Constance. The cit-
ies received three major concessions from the emperor: the election of their
own magistrates, rights of government over adjacent rural counties, and the
right to make their own laws. In other words, they were conceded internal
autonomy. In return, the cities made a number of promises to Frederick. The
citizens of the cities would swear loyalty to him. Magistrates, though chosen
by the communes themselves, would be officially invested in their offices by
imperial officials. For legal cases where the amount at stake was above a
certain figure (twenty-five pounds in gold), there would be a right of appeal
to imperial courts. Finally, the cities agreed to pay a levy when emperors
traveled through them en route to their coronations in Rome. In practice,
the rights gained were claimed by all of the communes in Italy and not
merely by the ones represented at the conference. Also, the rights conceded
to the emperor were, in practice, largely ignored, with the result that the
communes emerged as the clear victors in the struggle.
Making coherent legal sense of this new development posed a challenge
to even the subtlest of legal minds. Bartolus of Sassoferrato made a valiant
attempt at it. He was certainly well placed to craft a conceptual compromise
on this issue. He was a spokesman for universal de jure rule of the emperors
and a sometime legal adviser to Emperor Charles IV—but also a consultant
to some of the Italian cities. His solution was to posit the idea of an indepen-
dent city, which he called a civitas. The essence of its independence lay in the
fact that it acknowledged no superior—civitas civi princeps (“the city its own
prince”) in the succinct expression that he coined.
There were, however, two vital caveats to this independence. One was that
the cities still remained part of the Holy Roman Empire. The second was
that the emperor must be regarded as the ultimate source of the powers
of the city. The result, then, was that the cities were held to possess their
treasured “independence” by imperial consent, as a kind of emanation from
the emperor. Independence, in this very special sense, meant that the em-
peror refrained from exercising his imperial powers in the cities. Another
way of putting it was to say that the emperor was the ruler of the Holy Ro-
man Empire as a whole, but without being the ruler of all of its individual
component parts.
The result of Bartolus’s ingenious theory, then, was to reconcile two things
that might be supposed to be contradictory: the independence of the com-
munes and the retention of at least some vestige of their subordination to
a larger legal entity. The resemblance of this thesis to later ideas of inter-
national law—involving states that are, at the same time, “sovereign” and
yet subject to rules of law—has not escaped later observers. For his achieve-
ment, Bartolus has even been credited as “the fi rst theorist of international
law.” 
The Kingdoms
The various European kingdoms—chiefly Sicily (including the whole south-
ern part of the Italian peninsula), together with the various transalpine
states—presented some of the same challenges to medieval universalist vi-
sions as the Italian communes did. There were some differences, though.
One was that the kingdoms had less difficulty in asserting their indepen-
dence from the emperors. Notwithstanding theories of universal dominion
on the part of the Roman emperor (as dominus mundi) by such writers as
Dante, the majority view was that the various lands with kings of their own,
such as England, France, Scotland, Denmark, and Hungary, were indeed in-
dependent states, separate from the empire. This was encapsulated in the
common expression Rex imperator in regno suo (“A king is an emperor in
his own kingdom”). This thesis was put forward both in France and in Sicily
in the thirteenth century (with some uncertainty as to priority in time).
There was papal support, too, for the proposition that rulers were not sub-
ject to outside controls for acts performed within their jurisdictions. This
was held by a decretal of Innocent III entitled Per venerabilem in 1202, in
which he conceded that the king of France, in dealing with his own vassals,
was not accountable to the Holy Roman emperor. Th is statement has been
regarded, with some justice, as a cornerstone of the principle of state inde-
pendence and sovereignty. In a similar vein was a pronouncement in 1313
by Pope Clement V, called Pastoralis cura, which arose out of a complex
dispute between Emperor Henry VII (Dante’s ideal for a universal mon-
arch) and King Robert of Sicily. Clement held that, so long as a king re-
mained within his own territory, he was not subject to any kind of legal
process (such as a summons to appear before the emperor). This decree has
been characterized as “the first legal expression of the concept of territorial

sovereignty.” 
The Aristotelian Challenge

Ideas of the independence of states received important reinforcement from
one of the most important intellectual events of the Middle Ages: the redis-
covery of the bulk of Aristotle’s writings. It will be recalled that he regarded
the state (i.e., the ancient Greek polis) as a natural entity, with self-rule as its
very essence. This was a very far cry from the standard medieval image of
the state as a necessary evil. The Aristotelian view, which was especially in-
fluential in the Dominican Order of monks (which included Aquinas), was
fundamentally hostile to ideas of universal dominion and correspondingly
supportive of ideas of mutual independence of states—with implications of
nonintervention by states in the affairs of one another. Aristotelianism, in
short, was a philosophy of pluralism that directly challenged the universal-
ist theses of empire and papacy.
An expression of this new Aristotelian outlook can be found in the writ-
ing of a Dominican named John of Paris (Jean Quidort), who wrote in the
late thirteenth century, in the generation after Aquinas. John was an avowed
pluralist, maintaining that, because of the complexity of political life and
secular power, it is not possible for universalism to reign in that sphere of
life, as it can (and should) in the religious one. Different peoples have dif-
ferent modes of life, and there must therefore be different governments to
accommodate them. Consequently, it is both necessary and desirable that
there be a multiplicity of kingdoms. “There can be many different ways
of living,” asserted John, “and different kinds of state conforming to differ-
ences in climate, language, and the conditions of men, with what is suitable
for one nation not so for another.” He concluded, expressly invoking the
authority of Aristotle, that “development of individual states and king-
doms is natural, [while] that of an empire or [universal] monarchy is not.” 
A demonstration of how subversive the Aristotelian ideas could be, if
taken to their logical extreme, was provided by the fourteenth-century Ital-
ian writer Marsilius of Padua. Neither a lawyer nor a theologian, his profes-
sional training was in medicine. He supported Louis of Bavaria in his un-
successful claim to the Holy Roman emperorship. More memorably, he
wrote a major work of political theory, Defensor pacis (The Defender of

Peace), in 1324. The discovery that he was the author of this treatise (which
strongly contested the right of the clergy to exercise political power) led to
his exile at Louis’s court in Bavaria. For present purposes, Marsilius is no-
table for the pervasive influence of Aristotelian political ideas in his work.
Echoing his ancient predecessor, Marsilius regarded the state as a natural
phenomenon, rather than as an evil made necessary by human depravity.
Reflecting his medical background, he likened the state to a living organism
with a lifestyle consisting of successive stages.
More than any other medieval writer, Marsilius dispensed with the idea
of natural law. He did not reject the concept in principle, but he recognized
it only as “the science or doctrine of right” and not as actual law. Law in the
proper sense, he insisted, is “a command coercive through punishment or
reward . . . in the present world.” The fundamental source of law, accord-
ingly, is not reason but the will of the party promulgating it. Moreover, an
indispensable sign of law is the omnipresent exposure to a sanction or pun-
ishment for its violation—just what natural law lacked. This is the clearest
expression in the medieval era of what would later be termed the positivist
conception of law.
These Aristotelian ideas were unsettling for various reasons. For one thing,
they made it relatively difficult to see how there could be law between states,
if states were regarded as, in principle, entirely independent of one another.
If there is no ruler of the body of states, how can there be any law between
them? The answer, of course, was that even states that are independent of
one another do not live in a normless world. They are still subject to the law
of nature and to the ius gentium. But the Aristotelian outlook was neverthe-
less worrying in that, if these are regarded as the only constraints operating
on states, then, in the absence of any enforcement or sanctioning mecha-
nism, it is hard to see the international rule of law as being anything more
than a scholarly reverie.
That the international rule of law was a tender plant could hardly be denied
(then or now). But it had some strengths in places that were not so obvious.
Apart from the scholars, practical men were at work, too—not in monastic or
university libraries, but out on the highways and sea-lanes of medieval Europe
(and beyond). These adventurers faced many hazards—but they also showed
an impressive degree of legal creativity in devising ways to reduce them.
Customs of States
With the ius gentium now seen as, effectively, a sort of secondary or deriva-
tive aspect of natural law itself, an important break was made with the old
Roman-law ius gentium. By being so tightly chained (so to speak) to natural
law, the ius gentium was deprived of its ability to evolve independently. That
meant that it was now less well equipped to play what had been its original
role in Roman law: the devising of a set of common practices, animated by
a rough-and-ready, commonsense equity, to deal with concrete, practical
problems as they arose. That did not mean that the search for solutions to
practical problems of international relations came to an end. Far from it. It
only meant that the solutions devised were not neatly pigeonholed by aca-
demics and theologians into the neat compartments of “natural law” and
“ius gentium.” They existed on the margins of medieval legal consciousness—
but nonetheless effectively for that.
It would appear that no precise label was ever given to these various ad
hoc practices. They were basically forms of customary law. In its medieval
usage, customary law referred to lawmaking from below rather than above—
that is, to lawmaking effectuated by the people of a country on their own
collective initiative, through day-to-day practice, as opposed to law that was
handed down from above, by monarchs or parliaments. In international af-
fairs, the position was similar, with various regular practices growing up
and gaining hold over time. The actual status of these practices as law was
not very clear. But so long as they were either widely observed de facto or
else enforced somehow or other by some authority or other, there seemed no
reason to deny that they were laws for practical purposes, if perhaps not in
strict theory. In all events, three areas illustrate this process in action with
particular clarity: maritime law, the law on the conduct of war, and the law
merchant.
Maritime Law
Bringing order to the seas has always been problematic and remains so to
the present day. But the earliest important progress in this direction was
achieved in the Middle Ages. It was largely the seafaring communities them-
selves that are to be credited for this. Several bodies of law were devised
which, although strictly applicable only to restricted groups of persons,

came to be widely accepted. The law of Rhodes, or Rhodian Code, was the
earliest example. It was thought to be of ancient origin (from about 300 bc),
but our earliest actual reference to it is only in the seventh century ad, by
Isidore of Seville. The maritime laws of the Italian city of Amalfi (known
as the Amalfian Table, or the Tabula amalfintina) dated from around 1100
and were in general use among the city-states of Italy. Seaport towns on the
Atlantic and North Sea coasts commonly made use of the Laws of Oléron (a
small island in the Bay of Biscay), which were compiled around 1150 (and
published in Rouen in 1266). In the Baltic Sea area, the Laws of Wisby, is-
sued by a port city of that name on the island of Gotland in about 1350, were
similarly widely followed. This corpus may in turn have been based on the
Laws of Oléron. A set of laws issued by a body of merchants in Barcelona,
called the Consolato del Mare (“Consulate of the Sea”), promulgated some-
time between the eleventh and thirteenth centuries, also had a wide impact.
These codes dealt with a host of practical questions involved in day-to-
day maritime trading. The Consolato del Mare was noteworthy, in addition,
for providing the first elaboration of rules dealing with maritime neutrality.
It has been observed that official just-war doctrine frowned on neutrality
and provided no rules on the subject. But practical men needed some regu-
lar procedures and proceeded to devise them on their own. The principal
problem was what to do about neutral goods carried on belligerent ships. If
the ship was captured, could the neutral-owned goods be taken too? The
Consolato held not. Conversely, if goods owned by a national of a belliger-
ent state were being carried on a neutral ship, then the belligerent’s enemy
could capture those goods but not the vessel or any neutral-owned cargo.
The maritime states of Western Europe, in the later Middle Ages, began to
devise a system of prize courts and prize law to deal with maritime captures.
(“Prize” comes from the French prise, meaning “taken,” in the sense of cap-
tured.) This was an arrangement in which goods were not taken from ships at
sea by the captors on their own (sometimes rather rough) initiative. Instead,
the ship itself was captured and escorted, with cargo intact, into a port. In the
parlance that developed, the captured ship would be said to be “taken into
prize.” The owners would then have the opportunity to contest the legality of
the capture before some kind of judicial authority or body. This practice of
prize adjudication began in England in the late thirteenth century, with other
European maritime states following the English lead. In France, for example,
an ordinance of 1400 provided rules for prize adjudication.
The question of state sovereignty over the seas, or portions of them, caused
difficulties. While it was widely recognized in natural law that the seas were
free and open to all of humankind, there were contentions that this principle
applied only to the wide oceans, with coastal states then being allowed to as-
sert jurisdictional claims of varying kinds over sea areas to which they re-
garded themselves as having historical ties. Venice, for example, claimed sov-
ereignty over the Adriatic Sea and Genoa over the Ligurian Sea. There was
natural room for overlapping claims if this were allowed. For example, both
France and England claimed sovereignty over the English Channel.
A somewhat different approach to this question was taken by the county of
Flanders, which claimed sovereignty not over a whole sea area, but only over
a coastal strip (stroom in Flemish, or estrum in French) immediately off its
own coast. The French government formally recognized Flanders’s title to
the stroom in 1370. England, along with the Dutch states of Holland and Zee-
land, followed suit in the early fifteenth century. In 1394, Holland claimed
the entire Zuyderzee as a stroom. The actual width of a stroom was, however,
the subject of some uncertainty. In the fifteenth century, it came to be gener-
ally acknowledged that the width of a stroom was the distance from which a
person at sea could discern the coast and its buildings, which would be about
three German leagues, or twenty-one kilometers in modern terms.
One of the lawyers who addressed this problem was Bartolus. He lent his
considerable prestige to the right of states to claim sovereignty over offshore
sea areas—in his opinion, extending to “a modest distance” of two days’ sail-
ing from the land (or about a hundred miles). This figure was apparently
taken from the canon-law standard for determining “neighboring.” One of
Bartolus’s students, also a highly learned lawyer, Baldus of Ubaldis, was more
restrained, allowing about sixty miles. There was a great deal more disput-
ing to be done on this vexed question for a long time to come—not until the
late twentieth century would the matter finally be resolved. The wheels of
justice turn particularly slowly when they are being pulled in different direc-
tions by interested parties.
The Conduct of Wars

It has been observed that just-war doctrine had no specific rules about the
conduct of wars, but only a general prohibition against purely gratuitous vio-
lence. Here, as in other areas of medieval international relations, canon law-
yers made an important contribution. Raymond of Peñaforte, for example,
pondered such questions as the use of catapults and archers in war. He also
considered crimes committed during war, such as robbery, rape, and arson.
Aquinas, in scattered places in his writings, touched on questions of proper
military conduct, insisting, for example, at least in general terms, on proper
discipline and morale among soldiers. He duly condemned desertion and ap-
proved of the wearing of insignia by soldiers to facilitate recognition.
One issue on which there was a division of opinion among writers was
the question of keeping faith with an unjust enemy, for example in the
making of truces. Some writers forbade entering into any agreements with
an unjust enemy in the first place. Others held such agreements to be
permissible—and that, if they were made, they must be faithfully kept. It
should be appreciated, though, that what was at stake here was an applica-
tion of the general natural-law duty of good faith to one’s fellow man and
not really a rule about the conduct of war per se. The prevailing conclusion
was that the general natural-law duty of good faith retained its force even
during time of war.
To some extent, the church took direct steps to mitigate the horrors of
war. This was done in several ways. One was through something called the
Peace of God, which was directed toward the protection of various classes of
persons from attack—women and children, clerics, peasants, and unarmed
noncombatants in general. Gratian’s Decretum, the great canon law com-
mentary of the mid-twelft h century, had several provisions to this effect, as
did the Third Lateran Council of 1179. In addition, there was the Truce of
God, which restricted the time periods in which wars could be waged. War-
fare in the period of the week from Thursday to Sunday came to be prohib-
ited in canon law.
In one notable instance, there was a restriction on specified types of weap-
onry. This was a canon of the Second Lateran Council, held by the Catholic
Church in 1139, which condemned “that murderous art of crossbowmen and
archers, which is hateful to God” and prohibited the employment of these
weapons against Christians. Their use continued to be allowed against in-

fidels and pagans. The ineffectiveness of this prohibition, however, was evi-
dent in the deadly use of archers by the English against the French during
the Hundred Years War in the fourteenth and fifteenth centuries, as well as
in the continued use of crossbows by various armed forces.
In addition to these contributions of the Catholic Church, various cus-
tomary practices grew up concerning warfare. Declarations of war are an
instructive illustration. The making of a formal declaration at the outset of
a war was not, as such, among the requirements for a just war in medieval
just-war doctrine. Nor was there any strong sense of anything called a state
of war. Nevertheless, it was the practice of the European states to make some
kind of formal declaration or gesture to the opposing side at the commence-
ment of a war. It might be a declaration conveyed by means of a herald (a
professional official messenger), or it might consist of some dramatic sym-
bolic act, such as the throwing down of a gauntlet (or glove).
Not until the fourteenth century was an attempt made at a comprehen-
sive summa of the laws of war. Th is was by a prominent Italian jurist named
John of Legnano, who taught both civil and canon law at the University of
Bologna. His Treatise Concerning War, Reprisal and the Duel, written in
1360, may be regarded, with some allowances, as the very first important
book in Western civilization on international law. He was said to have been
stimulated to write it by the vivid personal experience of being present in
Bologna during a siege.
It was, however, a popularized version of John’s treatise that achieved the
wider circulation in the Middle Ages. This was written by a Provençal monk
named Honoré Bonet (or Bouvet). Bonet spent several years in Avignon, in
close contact with the university there, as well as with Pope Clement VII. He
also served as prior of a monastery and qualified as a doctor of canon law.
His book, entitled The Tree of Battles, was published in 1387 and dedicated
to King Charles VI of France (for whom he later undertook some diplo-
matic ser vices). Largely a summation of John of Legnano’s exposition, the
book treated a host of practical questions arising in war, such as strategy,
orga nization, and preparation. It also covered a range of legal topics, in-
cluding the entitlement of soldiers to wages and indemnities, issues of ran-
soms, questions regarding truces and wagers of battle (set-piece contests by
appointed champions), and various puzzles arising from multiple loyalties
(such as the position of persons who were vassals of two lords at war with
one another).
Bonet’s work was in turn followed up—and largely replicated—by Chris-
tine de Pisan in the early fifteenth century. Of Italian family origin, Chris-
tine grew up in France, where her father served as a physician and astrologer
to King Charles V (of whom Christine would later write a noted biography).
She is now remembered largely for her concerns about the position of women
in medieval society. Her contribution to international law was a book enti-
tled Feats of Arms and Chivalry, written around 1410. As a self-proclaimed
“simple little woman,” she modestly invoked the aid of Minerva, the Roman
goddess of both wisdom and war. Her debt to Bonet was evident in an un-
conventional manner, through a vision of him. She proceeded to recapitu-
late the writing of her “dear friend” and “dear master” (though it is not
likely that they ever met), even following closely the order of topics covered
by Bonet. Later in life, she retired to a convent.
The largest body of medieval practice concerned prisoners of war, an area
in which it is possible to report some progress. The ancient practice of en-
slaving prisoners of war (or simply killing them) fell into disuse, at least in
conflicts between Christian powers—“according to the customs of modern
times,” as John of Legnano explained. In its place, a system of ransoming
prisoners grew up, which, over the course of time, became extremely elabo-
rate. The subject of ransoms, in fact, provides one of the most striking il-
lustrations of the legalistic medieval mind in action. In general, a prisoner
was regarded as belonging to the individual soldier who captured him. The
captor and the prisoner would then proceed to negotiate ransom terms,
which were often reduced to writing. The standard arrangement was that the
prisoner would promise to pay an agreed amount of money to the captor,
perhaps in periodic installments. He would typically promise to be a good
and loyal captive, in a manner resembling the swearing of vassalage in feudal
arrangements. Agreements sometimes contained details of the treatment of
the prisoner—with the captive having a legal action against his captor (at least
in theory) in the event of a breach.
The ransom amounts naturally varied with the rank of the captive. When
King David II of Scotland was captured by the English at the Battle of Neville’s
Cross in 1346, for example, the ransom sum (agreed after eleven years) was for
some £66,000. The literary figure Geoffrey Chaucer, in contrast, following his
capture in 1360 at the siege of Rheims, fetched a more modest £16. Pend-
ing the payment of the agreed ransom sum, the captive was held as a kind of
hostage. The wait was sometimes a long one. When Charles d’Orléans (the
French literary figure famous for his ballades and rondeaux) was captured
by the English at the Battle of Agincourt in 1415, for example, he was held
for twenty-six years before his ransom was paid in full. If a prisoner’s ran-
som was paid on his behalf by another party, then that party thereby ac-
quired a lien over the released captive, together with a legal claim on him for
indemnification of the amount paid—with the net effect being, then, that
the prisoner’s payment obligation was simply redirected from the captor to
the ransom payer.
One of the most prominent prisoners of the Middle Ages was King John
II of France, who was captured by the English at the Battle of Poitiers in
1356, during the Hundred Years War. After some four years as a prisoner,
the Treaty of Brétigny was concluded, in which the “king’s ransom” (all too
literally) was fi xed at three million crowns. John was then released, with his
son left in English custody as a hostage pending the payment. The escape of
the son from England angered his father, as a grave breach of honor. This
act, combined with an inability to raise the ransom money, led John to sur-
render himself to the English—an act of nobility that astonished his con-
temporaries. His captors appropriately held him in great honor as an exem-
plar of upright conduct, but he died shortly after his arrival in England, in
1364. Another famous royal captive, incidentally, was King Richard I of
England, who was taken prisoner in 1192, but that was in essence a case of
kidnapping rather than of capture in war.
The Law Merchant

With the great fragmentation of jurisdictions in the Middle Ages, problems
of finding a suitable law to apply to cases of foreign trading risked becoming
very acute. The solution reached, largely by the merchant community itself,
was, in effect, to devise a transnational, uniform body of customary law.
This was very much in the spirit of ancient Roman ius gentium, which had
been largely a law of commercial transactions between private individu-
als. This medieval counterpart of that earlier law became known as the law
merchant. It dealt with the myriad problems that arose in international
trading—from shipping and insurance, to pledging and pawning and de-

positing, exchanging currencies, borrowing, lending, mortgaging, transfer-
ring funds, and much else. There were institutional elements as well. The
most important of these were the various fairs held in Europe, in which
merchants from far-flung places would congregate to buy, sell, and exchange
goods—and to resolve disputes. There were judicial facilities at the fairs,
known by the colorful name of “pie powder” courts (apparently from the
French pieds poudrés, meaning “dusty feet”).
The details of the law merchant and its history are fascinating, but they
are really part of the history of commercial law rather than of international
law as such. It will suffice for present purposes to take brief note of various
ways in which governments lent their support to the development of inter-
national trade. Rulers sometimes took great care to attract foreign mer-
chants into their territories by such means as offering special quarters of
towns where they could live permanently under the laws of their home
states. Governments were often very aware of the value of trade—and of the
need to provide appropriate legal protections for it. Three particular devices
may be identified. The first was the concluding of commercial treaties, to
enable nationals to trade in foreign states under specified conditions that
could be known in advance. Such treaties are first evident in central and
northern Italy. The oldest one on record was apparently between Venice and
Pavia in 840. It guaranteed to the subjects of each city the freedom to trade
in and with the other. It also prohibited the levying of new taxes on naviga-
tion or the circulation of goods, as well as barring Venice (then active in
slave trading) from subjecting Italians to slavery.
Many other commercial treaties of this general character were concluded
between the various European powers over the ensuing centuries. Some were
with powers outside the Latin Christian world. For example, Venice con-
cluded a far-reaching commercial treaty with the Byzantine Empire in 992,
which fi xed the rates of duty on merchandise imported into or exported
from the empire by Venetians. It also placed a maximum limit of three days
on delays to which Venetian ships could be subjected when leaving Byzan-
tine ports. A subsequent treaty of 1082 went much further by granting Ve-
netians complete freedom of trade and navigation throughout the Byzantine
Empire, including exemption from all taxes (except possibly in the Black Sea
area).
A second ser vice that governments performed for traders was to bring le-
gal claims on their behalf against foreign governments in cases of mistreat-
ment. This is a form of international law activity that remains part of day-to-
day state practice to the present day. An instructive instance occurred in
1232, when a Genoese merchant complained of mistreatment by English au-
thorities on the island of Oléron. He alleged that, upon landing on the island
because of distress of weather, his goods were confiscated by the local au-
thorities without cause. The merchant informed his own authorities of his
plight, who then in turn made a complaint to the English government on the
matter. The ultimate result of this complaint is not known, but the affair
provides an early illustration of what international lawyers would call a
claim—meaning a formal representation by one government to another of a
legal wrong, with a view to receiving compensation of some kind.
The third major legal ser vice that governments offered to merchants was
the licensing of reprisals. Reprisals were a sort of combination of claims on
behalf of nationals and just wars. They resembled claims on behalf of na-
tionals in that they were designed to deal with injuries to private parties
rather than to states. But they resembled just wars in involving a resort to
force—though in the form of capturing property, not of attacking persons.
Reprisals differed from just wars in two other respects as well. First, the
force was employed only by the injured party himself and not by the armed
forces of his country generally. Second, reprisals were taken not against the
actual wrongdoer, but instead against surrogate parties who had not person-
ally committed the original wrong. Specifically, reprisals were taken against
fellow nationals of the original wrongdoer.
Fundamental to the phenomenon of reprisals was the principle of collec-
tive responsibility of a community for wrongs committed by its members.
If a merchant from, say, England was doing business in France and, in the
process, was defrauded by a French trader, then French traders in general
could be made responsible for compensating the injured party. The English
merchant would petition his own monarch for a license to take action
against French traders located in English territory. Th is license came to be
called a “letter of reprisal.” It functioned as a sort of search-and-seizure
warrant, entitling the holder to enter the premises of French traders in En-
gland and to confiscate property from them, up to the amount of his origi-
nal loss.
The reprisal process was subject to close judicial scrutiny. In requesting

the letter of reprisal, the allegedly injured party had to provide evidence to
his government of the wrong and of the amount of damage actually suf-
fered. The letter would state on its face the quantity of damage adjudged to
have been sustained—and that amount would then be the upper limit that
the merchant could take from the fellow nationals of the wrongdoer. Any
property which he captured had to be brought before a court for valuation
to ensure that he was not being excessively generous (to himself) in his in-
demnification enterprise. Once the official valuation figure was attained,
confiscations must halt.
With some modest adjustments, this letter-of-reprisal system could oper-
ate on the high seas as well. In this case, the holder of the letter would be
authorized to fit out a ship and to carry out his property captures on the high
seas. This authorization was commonly referred to as a “letter of marque,” on
the basis that it permitted the holder to go outside the territory of his state
(i.e., beyond the frontier, or mark in German) to obtain his compensation.
It will immediately be appreciated how close this practice came to being
mere piracy, which was robbery committed on the high seas. What distin-
guished lawful reprisals from piracy was the possession by the captor of a
letter of marque from his sovereign.
This practice of reprisals, as just described, was a purely medieval invention,
having no roots in Roman law. In Roman law, responsibility was entirely per-
sonal, with no element of collective responsibility or, as it were, guilt by associa-
tion. For that reason, lawyers tended to look askance at the practice. One such
was the Italian Alberic of Rosate, a prominent practicing lawyer in Bergamo
(and the author of a noted treatise on municipal statutes in the Italian cities).
Writing in the early fourteenth century, he asserted that the practice of repri-
sals was contrary to natural law—but that it was allowable nonetheless when
there was no mutual superior over the two states involved. That reprisals be-
came fully accepted in practice is evident from no less an authority than Barto-
lus, who wrote a treatise on the subject. The substance of this found its way, in
turn, into John of Legnano’s book, alongside his exposition of the law of war.
Bonet and Christine de Pisan also treated the subject in their works.
A disturbing feature of reprisals was that they could be all too easily abused.
An unscrupulous merchant might obtain a letter of reprisal on the basis of a
false claim. Or the quantity of the loss suffered might be exaggerated. There
was some concern, too, to protect persons of very modest means from being
the targets of reprisal action. For these various reasons, the church took a
stand against reprisals. In 1274, the Second Council of Lyon pronounced
them to be “oppressive and contrary to the laws and natural equity”—
although the principal focus of this denunciation was the exposure of eccle-
siastics to reprisals, rather than of laypersons generally.
In response to these various objections, some steps began to be taken to
mitigate some of the harsher features of reprisals. For example, various cat-
egories of persons were commonly exempted from reprisals. Clerics, of course,
were one of these, as befitted a religious age when theologians did so much
of the legal writing. Students were also generally exempt, as were peasants
and shipwrecked sailors. It became common for grants of commercial privi-
leges to merchants to include exemptions from reprisals, typically by pro-
viding that only the goods of principal debtors could be seized, and not
those of third parties. The Italian city-states pioneered the practice of
concluding treaties that restricted or prohibited reprisals. An early example
was an agreement between Bologna and Modena concluded in 1166. The
transalpine kingdoms followed suit, though only much later. In 1490, for
example, England and Florence concluded an agreement restricting repri-
sals, as did England and Burgundy in 1496. Reprisals would continue,
though, to be an important part of international practice, and law, for many
centuries to come.
It was possible for sharp-eyed rulers to see the system of letters of marque
as a useful resource in times of war for bolstering naval strength. Upon the
outbreak of a war, a prince could issue letters of marque to any private par-
ties who were willing to fit out a ship and go to sea to capture ships belong-
ing to enemy nationals. Now, however, there would be no requirement for
the letter holders to have been victims of any wrongs. Nor would there be
any specified upper limit to the amount of property that could be captured.
Holders of letters of marque in this situation would thereby become auxilia-
ries of (or even substitutes for) their state’s official naval forces. As an in-
ducement to the risks that would be run, the holders of the letters of marque
would be entitled to a stated proportion of any property that they succeeded
in capturing. An example of such a commission by the English government
is in evidence from as early as 1242. In later centuries, holders of letters of
marque of this type would become known as “privateers.”
Privateering was subject to some obvious abuses—chiefly to the risk that

the privateers would not confine their depredations to vessels of the enemy
state, but would engage in indiscriminate plundering. To deal with this prob-
lem, it came to be required that ships captured by privateers had to be brought
before prize courts, so that the lawfulness of the capture could be adjudi-
cated. The value of the capture would be adjudicated, too, to ensure that the
government received its due share of the proceeds. With the passage of time,
it became common to require privateers to post bonds, that is, to put a sum
of money on deposit as a kind of insurance against damages that might be
owing later for unlawful seizures.
More than any other topic, that of reprisals and privateering vividly illus-
trates the process of decentralized, do-it-yourself enforcement that is so closely
associated with international law. With sufficient safeguards provided—such
as prize courts to adjudicate the lawfulness of captures and requirements that
privateers post bonds—the practice could provide some relief for victims of
violations of law. Also, the web of common practices among the maritime
states of Eu rope helped to provide a certain stability to the system. But
merchants—and other sorts of adventurers, too—sometimes ventured far
outside the region of Western Europe to farflung parts of the world, beyond
the reach of the law merchant or the ius commune, where even the bond of
the Christian religion was absent. In such cases, the law of nature—that sup-
posedly universal and eternal set of norms—would be the only legal guide. In
these disquieting circumstances, natural law would be called upon to shoulder
some heavy burdens.
chapter three
New Worlds and

Their Challenges
ne day in 1534, the Dominican monastery of San Esteban in Sala-

O manca played host to a notably interesting guest. This was a cleric
named Vicente de Valverde, who regaled his clerical hosts with stories of his
recent travels—which were, by any standard, riveting. Valverde had served
as chaplain to a Spanish adventurer named Francisco Pizarro, and in that
role had been at Pizarro’s side in the conquest of Peru. He told tales of the
wondrous riches that had been amassed, although it is not possible to say
how candid he was about some of the methods used by his employer—
including the kidnapping of the Incan ruler in breach of a truce, followed
by a general massacre of natives. It may be surmised that serving as the
confessor of Pizarro may have been a demanding and time-consuming
task.
In all events, Valverde’s accounts of his experiences made a great impres-
sion on his hosts, and on one of them in particular. This was a monk named
Francisco de Vitoria, who up until then had taken little or no interest in
New World affairs. He was a theologian, chiefly distinguished as a leading
figure in the sixteenth-century revival of the philosophy of that earlier Do-
minican, Thomas Aquinas. Vitoria hailed from a prominent family in Bur-
gos. He studied in Paris in the early years of the sixteenth century, especially
the works of Aquinas, and then returned to Spain to teach theology, first at
the College of San Gregorio in Valladolid. He then moved to the University
of Salamanca, where he held the prime chair in theology and expounded the
New Worlds and Their Challenges 93
works of Aquinas. He had connections in prominent humanist circles, be-

ing a personal friend of the noted Spanish humanist Luis de Vives and a
defender of the famous scholar and polemicist Erasmus of Rotterdam from
attacks by conservatives.
Vitoria was very impressed by the stories related by Valverde—though
not in the manner intended. He was shocked by what he heard, and the
more that he learned about the conduct of the Spanish in the New World,
the more horrified he became. Later in 1534, he wrote in a private letter that
“no business shocks me or embarrasses me more than the corrupt profits
and affairs of the Indies. Their very mention freezes the blood in my veins.”
In 1539, he went public with his concerns, delivering a memorable set of
lectures, known as a “relection,” entitled De Indis (On the American Indi-
ans). In these, he discussed various issues largely from the standpoint of
natural law and just-war doctrine. Vitoria’s conclusions, in some ways, were
not so radical. He did accept that, in principle, the Spanish might have had
some just cause for war against the Indians. But he doubted whether that
amounted to a right of outright conquest and annexation of the Indian
realms.
Questions of relations with peoples outside the Christian fold were, to be
sure, nothing new in the sixteenth century. Europe had never been a closed
world. Throughout the Middle Ages, from the seventh century onward, the
European states had had to contend with a powerful and advanced civiliza-
tion armed with a new religion, Islam. If the principles of natural law were
truly universal, as claimed, then somehow a place would have to be found
within its framework for the role of non-Christian peoples. Islamic society
faced the same challenge, since its religion, too, was a universal one. But
Muslims and Christians took significantly different approaches to many of
the international legal issues of the time.
The greatest challenges arose when European explorers encountered soci-
eties, in Africa and the New World, with which they had had no prior con-
tact of any kind. Dilemmas confronted by Spain in the Americas were the
most conspicuous of these. Not without reason has this era been termed the
“Spanish age” of international law. But even if the most prominent actors of
the period were Spanish, the many contributions that they made to the de-
velopment of international law belong to the world at large.
The Islamic World
The Islamic world presented a number of interesting contrasts to its Chris-

tian counterpart. Christian society was fragmented into a successor empire
to Rome in the east (the Byzantine Empire) and a welter of states in the west,
ranging in size from the Holy Roman Empire to the various Italian com-
munes and free cities of transalpine Europe. The Islamic world, at least for
an impressive period of time, was a unity (if only a somewhat loose one)
comparable to the empire of ancient Rome. There were also some similari-
ties between the two societies. Both religious faiths were strongly universal-
ist in outlook, each seeking ultimately to bring the entire world within its
fold. And in both cases, it was abundantly clear that this ambition was very
far from actual achievement. However impressive the Islamic conquests of
the seventh and eighth Centuries, they fell far short of encompassing the
entire world.
It has been observed that, in the case of Christian Europe, an alternative
universalist vision was offered by natural-law doctrine. On this point, the
Islamic world offered a very striking contrast. Natural law was one notable
element of the Greek and Roman classical heritage that did not have a great
impact on Muslim thought. Where the natural-law tradition insisted on an
ultimate and fundamental unity of the entire human race, the Islamic faith
held there to be a deep moral chasm between believers and infidels. In order to
be truly moral, in Muslim eyes, it was necessary to be a Muslim and, by exten-
sion, to know and live by the Muslim law, the sharia. It is true that the Mus-
lim faith did not countenance active mistreatment of infidels merely on the
basis of nonbelief. On the contrary, “people of the Book” (meaning Jews and
Christians plus, in practice, Zoroastrians) were to be tolerated. But this was a
toleration liberally flavored by condescension. Infidels were regarded as moral
inferiors and were subject to various disabilities, such as special taxation.
Houses of War and Peace

The Islamic ideal was that the Muslim world should comprise a single com-
munity of believers, united in a single polity and governed by sharia, the
Islamic religious law. Within that world, there could be, in principle, no
such thing as international law. Relations with the infidel world were, how-
ever, a different matter. The Quran, the sacred book of the Islamic faith, did
not itself offer much guidance. But a body of law known as siyar gradually
grew up to deal with such issues. (Siyar is the plural of the Arabic word sirah,
which simply means conduct or behavior.) We must beware of thinking of
the Islamic siyar in terms of our modern conception of international law
because it was seen as a law exclusively for Muslims, not for infidels. It was a
body of rules that instructed Muslim rulers on how they were to behave to-
ward nonbelievers. In modern parlance, it would be characterized as the
Muslim law of foreign relations, rather than as international law per se.
Since siyar was seen as part of Islamic law, it followed that it must, in prin-
ciple at least, flow from the same sources as Muslim law generally. In prac-
tice, however, that was not really the case, since the traditional sources of
Islamic law had too little to offer in the way of substantive rules of conduct.
Siyar was therefore, to a large extent, separate from other branches of Mus-
lim law, being derived largely from custom and from reason rather than
from the prescriptions of the Quran or practices of the Prophet Muhammad
(which were, and still are, the two principal sources of Islamic law).
The earliest writing on siyar was in the middle of the eighth century, by
Abd al-Rahman al-Awza’i, who lived in Syria but of whom otherwise noth-
ing is known. He wrote a book—apparently the first ever—on the subject of
the laws of war. Although it has not survived as written, its substance is
known. It dealt with a number of discrete, specific topics of a practical na-
ture, with the greatest attention given to the treatment of enemies and the
division of the spoils of battle. The first exposition of siyar as a whole, how-
ever, appears to have been accorded by the Hanafite school of Muslim juris-
prudence, which grew up in Iraq in the late eighth and early ninth centu-
ries. One of the leading early figures of this school, a certain Abu Yusuf,
wrote a Book on Taxation (Kitab al-Kharaj) , which contained a treatment of
legal rules on foreign relations between states. It is said that the book was
written at the request of Caliph Haroun al-Rashid.
Much more significant was a work written a few years later, just after the
turn of the ninth century, by Abu Allah Muhammad ibn al-Hasan ibn Far-
qad al-Shaybani—usually known simply as Sheikh al-Shaybani. A native of
Iraq, he studied law under Abu Hanifa (the nominal founder of the Hanafite
School) himself, continuing his studies, after Abu Hanifa’s death, under
Abu Yusuf. He appears also to have studied for a time under al-Awza’i. In
the course of his career, spent mostly in Iraq, he became one of the foremost
figures of the Hanafite school and also did judicial service—from which,
however, he was dismissed by Haroun al-Rashid for tendering some unwel-
come legal advice. (A reconciliation later took place). Al-Shaybani wrote
two works on siyar, but his surviving writing on the subject is a portion of a
larger work on Islamic law. It covered such topics as peace treaties and safe-
conducts, territorial jurisdiction, diplomatic relations, the conduct of war,
neutrality, and civil strife.
On the subjects of war and treaty making, the position of Islamic states
differed significantly from that of their Christian counterparts. It has been
observed that European just-war doctrine had scarcely anything to do with
religion. A just war was basically a form of legal process—a means of com-
pelling wrongdoers to accord due recognition to the legal rights of the just
side. As such, it was a carefully limited and circumscribed action, fought for
the obtaining of some defined thing (or res) that was being wrongfully with-
held or denied. This meant, in turn, that just-war doctrine was as readily
applicable to relations with infidel powers as with Christian ones. Moreover,
Christians, from Augustine onward, were emphatic that peace was the nor-
mal or residual condition of life, and war the exception.
The Islamic conception of war was radically different. Here, the dividing
line between the faiths was seen as fundamental and (nearly) unbridgeable.
Muslims were characterized in the Quran, the sacred book of the faith, as
being “harsh towards the disbelievers and compassionate towards each
other.” With the infidel world, in short, there was, in principle, a perpetual
state of war. The Quran warned Muslims that nonbelievers were their “sworn
enemies,” and it cautioned Muslims against taking Christians and Jews as
allies. This attitude was reflected in the label given to the non-Muslim world
in general (though not by the Quran itself)—the Dar al-Harb, or “house of
war.” Contrasted to the Dar al-Harb was the Dar al-Islam, the realm of the
true faith. In principle, there could be no permanent peace treaty between
the two “houses.” More generally, it may be said that this sharply dualistic
conception left no conceptual space for an elaborate system, of the Euro-
pean kind, for assessing rightful and wrongful resorts to force.
In an important sense, then, all Muslim wars against infidel powers—
offensive and defensive alike—were regarded as, per se, just, provided that
an invitation to convert was given prior to the launching of hostilities. The
reason was that it was regarded, in the Islamic religion, as a praiseworthy

thing to bring as much of the world as possible under Muslim rule. At least
in theory, this did not amount to a license for aggression for its own sake.
Instead, conquest was seen as a means to certain overriding noble ends. One
of these was to provide full protection to any Muslims who might be living
under infidel rule. In addition, nonbelievers in the acquired area could be
provided with a continuous demonstration of the superiority of the Islamic
faith and social system, thereby (presumably) giving them a high incentive
to convert. It was clearly established in Muslim law that conversion could
not be compelled. But that did not mean that the example of the faith in ac-
tion could not be placed before unbelievers by means of armed conquest. It
will be seen that this argument came to be advanced in Christian circles too.
Related to the idea of intrinsic hostility between Muslim and infidel states
was the concept of jihad. Although often thought of as meaning holy war,
the actual meaning of the word is “striving.” The duty of jihad in its generic
sense is therefore the duty of believers to exert themselves to the utmost to
promote the faith. This can be done in a vast variety of ways. There is a “ji-
had of the tongue,” which means putting the art of eloquence to work in
ser vice of the faith, or a “jihad of the pen,” which means writing in support
of the faith. There is also, of course, a “jihad of the sword,” which is the use
of military prowess in support of the true religion. It should be stressed,
though, that jihad, at least in its inception, was to be seen in positive terms,
as a duty to advance the faith, rather than in negative terms, as hostility or
aggression against infidels.
Any inclination to regard this “jihad of the sword” as analogous to the
medieval European doctrine of the just war must be rejected. The European
just war was a remedy against legal wrongdoing, without regard to the faith
of the miscreant. Jihad, in contrast, was a means for the promotion of the
Muslim faith in general. It was therefore, by its nature, directed primarily
against unbelief and, as such, applicable chiefly to relations with infidels (al-
though it could also be employed against internal threats, such as apostasy).
Some Practical Adjustments

It has been observed that, in Europe, a rich body of state practice arose in
international legal affairs to deal with practical problems for which natural
law had no ready answers. Much the same thing occurred in the Islamic
world, as various pragmatic measures were devised to temper the severity of
the doctrine of unremitting hostility between the Dar al-Islam and the Dar
al-Harb. It would appear that ordinary diplomatic relations with infidel states
posed no great problem. In 765, King Pepin of France dispatched a mission
to Baghdad and received a return embassy three years later. In 797, Char-
lemagne sent another mission to Baghdad. It returned with some handsome
gifts, if nothing else—including a white elephant. There were even (if very
rarely) personal meetings between rulers of different faiths. In 1162, Byz-
antine Emperor Manuel Comnenos hosted the Turkish sultan of Iconium
(modern-day Konya) in his palace in Constantinople, resulting in the con-
clusion of a friendship treaty.
Of rather more interest for present purposes was the development of vari-
ous legal devices that had the effect of mitigating at least some of the effects
of the basic doctrine of permanent war against infidel states. Three such le-
gal devices proved to be especially useful. One was the substitution of truces
for peace treaties. That truces of ten years’ duration were permissible was
indicated by an incident in Muhammad’s career. At one point, he concluded
a truce of that duration with enemies, with divine approval clearly indicated
in the Quran. In addition, there was no clear bar to the conclusion of a
fresh truce immediately upon the expiry of an old one, with the result that,
in practice if not in theory, peaceful relations with infidel states could be
stretched out indefinitely. This state of affairs even came to be honored with
the designation of Dar al-Sulh (or “house of truce”), to indicate a middle
status between war and peace. This innovation was, however, controver-
sial. It was particularly the product of the Shafi’i school of Muslim jurispru-
dence but was rejected by the Hanafites, who continued to deny the existence
of a middle category. It may be noted, though, that truces were regarded as
terminable at any time at the will of the Muslim party, so long as due notice
was given first.
A second legal device for enabling peaceful relations to take place between
Muslim and infidel states was for an infidel country to be tributary to an Is-
lamic one. So long as the nonbelieving state was treated as being on a legal
or moral level inferior to the Muslim one, there need not be ongoing war.
Th is arrangement was sometimes known as Dar al-Ahd (or “house of cov-
enant”). Muslims could even, like the Chinese, take a broad view of “tribute”
by deeming ordinary, customary gift s by diplomatic missions to be

tribute.
The third principal device for mitigating the inconvenience of perpetual
enmity with infidels was the granting of safe-conducts. This was a signifi-
cantly more flexible arrangement than the conclusion of truces or tributary
relations, since a safe-conduct (aman in Arabic) could be issued by any adult
Muslim. Rulers could go further and issue them collectively to foreign
states as a whole. It was through this device that extensive commercial ties
with various European Christian states were established in the course of the
Middle Ages.
Some additional adjustments to strict doctrine became necessary when
political fragmentation occurred within the Islamic world. These began in
the middle of the eighth century, when the Muslim rulers of Spain withdrew
their allegiance to the Abbasid caliphs of Baghdad. By 800, the Abbasids no
longer ruled effectively anywhere in North Africa beyond Egypt. The way
was now open for armed conflict between Muslim states. These were re-
garded in Islamic law as acts of rebellion against the legitimate successors of
Muhammad. In practice, however, enemy Muslim rulers were readily held
to be entitled to treatment as enemies according to the laws of war rather
than as mere criminals.
In the course of time, this treatment was extended to insurgent groups
within individual Islamic states. The rule came to be that, if the insurgents
were organized in the manner of a government, with actual control over a
portion of territory, then they would not be regarded as mere bandits or
criminals, but instead as a sort of de facto governmental entity. The Muslim
legal term for this kind of opponent was bughat, to distinguish him from a
mere bandit or highwayman. The key requirement for bughat status was that
the insurgents be fighting for some kind of doctrine or cause and not for
mere personal advancement. Possession of this status entailed a number of
important legal privileges. For example, truces made by rulers with bughat
groups had to be honored. Also, persons living in the area that was controlled
by the bughat movement would be exempted from their normal taxation
obligations to the legitimate government. This meant that citizens could pay
their taxes to the bughat overlords, in the confidence that they would not
have to pay a second time later, to the legitimate government, when (and if)
the insurgency was suppressed. In addition, government acts promulgated
by the bughat authorities would be recognized as lawful in their area of

control. At the conclusion of hostilities, defeated rebels were entitled to
have their weapons returned to them. Not until the nineteenth century
would the Europeans devise a comparable doctrine, under the label of “rec-
ognition of insurgency.”
By the late eleventh century, questions about Muslim relations with the
Dar al-Harb became less challenging from the legal standpoint, as they be-
came more serious from the military perspective. For it was then that the
European states began to go onto the offensive against the Islamic world. It
would now be the turn of the Europeans to fi nd some way of justifying ex-
pansive, offensive policies. In the absence of a general doctrine comparable
to that of the Islamic Dar al-Harb, giving automatic license to war against
infidels, the challenge would be a daunting one.
European Expansion in the Crusading Era
Medieval Europe was an energetically expansive society. Its outward push

was in no fewer than four directions: southeastward, into the Holy Land of
the eastern Mediterranean; to the southwest, for the recovery of Spain from
the Muslims (the Reconquista, as it was known); to the northeast, spreading
Christianity into the Baltic areas; and finally to the northwest, where hardy
Scandinavian voyagers settled Iceland, Greenland, and even (if only just
briefly) mainland North America. For all of these activities, the hardiness of
the pioneer and the bravado of the warrior were greatly in demand. So too,
however, were the skills of a more subtle and unobtrusive group of persons:
lawyers. One of the challenges facing medieval lawyers was to determine the
legal bases for these various external adventures. This was especially prob-
lematic for two of the four regions of expansion: the Holy Land and north-
eastern Europe. An important part of the lawyers’ task was to decide what
kind of entitlement to govern was possessed by the preexisting rulers—who
in all cases were non-Christians. In dealing with these vital issues, natural-
law doctrine was summoned to assist.
Pagans as Sovereigns
Since natural law applied to all members of the human race (and even to the
entire animal kingdom, in Ulpian’s version), there was no doubt that non-
Christians were fully entitled to be owners of private property. More prob-
lematic was whether they had a right to exercise rulership, particularly over
Christian subjects. There was a powerful strain of thought in Western Eu-
rope to the effect that pagans could not possess title to lands. This was the
opinion of Hostiensis (also known as Henry of Segusio), who taught canon
law at the University of Paris during the thirteenth century. In 1253, he con-
tended that, “with the advent of Christ all offices and princely ranks . . . have
with just cause been withdrawn from all heathen and transferred to Chris-
tians.” Giles of Rome, who was archbishop of Bourges and a follower of
Thomas Aquinas, insisted, in this same vein, that a person cannot be “the
lord of anything or . . . possess anything with justice unless he is also spiri-
tually regenerated through the Church.” Aquinas himself held a somewhat
more moderate stance: that, if sovereignty by an infidel ruler over Chris-
tians was “an established fact,” then it could be allowed to continue—but
that it was subject to revocation by the church at any time. The reason, he
explained, was that “infidels by their infidelity deserve to forfeit power over
the faithful.”
But this position did not, in the event, win official favor. The decisive con-
tribution to the debate was made in 1243 by Pope Innocent IV (Frederick
II’s nemesis). Invoking natural law, he pronounced that “[d]ominions, pos-
sessions and jurisdictions are lawful and blameless among the infidels, for
these were created not only for the faithful, but for all rational creatures.”
Pagan princes even had a lawful right to rule over territories that had been
conquered from prior Christian rulers—with the notable exception (as will
be seen) of the Holy Land in the Middle East. This natural-law right to political
dominion was likened, in its universality, to sunshine, which warmed per-
sons of all faiths and cultures alike. For these views, there could be a case for
crowning Innocent IV with the contested title of father of international law.
The logical implication of Innocent’s position was immediately apparent.
In order for wars against pagans and infidels to be lawful, they would have
to be brought within the framework of general just-war doctrine, or else
some kind of alternative justification outside that framework would have to
be devised. That posed something of a challenge. But there was no shortage

of lawyers prepared to meet it.
Justifications for Crusading

If traditional just-war theory was to be employed to justify crusading, then a
persuasive just cause (iusta causa) would have to be identified. One possible
theory was repressive rule by the Saracens (in the form of persecution of
Christians), which could be argued to justify forfeiture of their right to rule.
This was put forward, admittedly not in very dispassionate legal terms, at
the outset of the crusading movement to the Holy Land. The famous sermon
by Pope Urban II at Clermont in 1095, in one of the versions in which it has
been reported (supposedly firsthand), contained an extensive catalogue of
atrocities attributed to the Muslims. These included the devastation of the
Holy Land with “pillage, fire, and the sword,” the infliction of “cruel tortures”
onto Christians, the destruction of churches, and the ruining of altars with
“filth and defi lement.”
In the longer term, however, allegations of misconduct by infidel rulers
lost their persuasiveness, and resort was had to two other theories that were
devised outside the framework of general just-war theory. One of them,
known as recuperatio (“recovery”), was applied to crusading in the Holy
Land. The other, known as dilatatio (“expansion” or “widening,” cognate
with the English word “dilate”), applied to the northeastern European cru-
sading theater.
The recuperatio theory was the more widely accepted of the two, since it
had the support of Innocent IV himself. It held that the Holy Land must be
seen as something of a special case. It was stated to be, uniquely, a res sancta
(“sacred thing”) belonging, in permanent right, to the whole of Christen-
dom. That meant that any infidel rulership over it could never be regarded
as legitimate. Consequently, any Christian prince was entitled to reconquer
it on behalf of the Christian community generally. Among the writers who
supported this doctrine were John of Legnano and Bonet.
The dilatatio theory was more controversial. It was essentially a Christian
version of the Muslim thesis, identified earlier, that the conquest of foreign
lands was justifiable as a means to the effective promotion of the true faith.
Conquest of a non-Christian land could be authorized (the theory went) on
the condition that the conquerors convert their new subjects to the Catholic
faith after gaining control. The distinctive feature of this doctrine was the
absence of any requirement of prior wrongdoing on the part of the infidel
rulers. It should also be noted that, as in Islamic belief, the actual conversion
of the population was still required to be voluntary, so that the dilatatio prin-
ciple did not amount, strictly speaking, to forcible conversion. But it justified
the employment of force as an ancillary—and prior—aid to conversion.
The dilatatio theory was not invoked in the original proclamation of the
northeastern crusade by Pope Eugenius III in 1147. It first emerged in the
context of European occupation of the Canary Islands in the fourteenth cen-
tury. In 1344, Pope Clement VI made a grant of the islands to a certain Luis
de La Cerda, a Spanish native who had transferred his allegiance to France.
La Cerda’s grant included the enviable title of “Prince of the Fortunate
Isles.” He was thereby authorized to conquer and rule the islands but was
also instructed to employ his powers to promote conversion of the native
population to Christianity. The following year, Clement VI conferred the
status of crusade onto La Cerda’s plans for conquest. As it happened, La
Cerda never embarked on the conquest of his felicitous principality. But the
concept of dilatatio was now launched.
In the early fifteenth century, the debate over the validity of the dilatatio
principle became an element in a bitter legal dispute between the Teutonic
Knights and the government of Poland. The Teutonic Knights were officially
entrusted with conducting the northeastern crusade. Beginning in 1147, the
knights were authorized by the papacy first to subdue and then to convert,
the pagan populations of the region. This right of conquest and jurisdiction
did not, however, extend to areas where persons had converted voluntarily
to Christianity. That meant that attacks were not to be made against Po-
land, which had been Catholic since the tenth century.
Ill feeling between the Poles and the order began in 1386, when the queen
of Poland married the then-pagan duke of Lithuania—with the Lithuanian
ruler being baptized into the faith at the same time. The Polish-Lithuanian
government then demanded that the knights halt their attacks against Lith-
uania, on the ground that conversion was now proceeding in a peaceful man-
ner. The knights continued their attacks, however—and accused the Poles of
employing infidels against them. In response, the Polish government sought
to have the Teutonic Knights disbanded completely. In 1415, the disputatious
parties presented their rival cases to the Council of Constance—where it

became the greatest set-piece international-law drama of the Middle Ages.
At the council, the knights were represented at first by Peter Wormditt,
who was the proctor of the order’s grand master, and later by a Dominican
named John Falkenberg. Also acting for the knights was a canonist named
John Urbach. On the knights’ behalf, Urbach contended that there could be
no lawful jurisdiction by infidels. Moreover, any unbelievers who violated
the laws of nature “may be lawfully corrected by means of the secular arm”
acting on behalf of the church. Pagans could lawfully wage war against
Christians, he argued, only if they recognized “the supremacy of the
Church” and, even then, only “in a case of pure and simple defence.”  Re-
garding the case at hand, the allegation was that Poland had unlawfully en-
tered into alliance with pagan Lithuania and that the Poles were employing
pagan and schismatic troops against the knights.
Falkenberg’s advocacy in the knights’ cause was decidedly more vigorous
than Urbach’s. Already on record as denying that the Poles were true Chris-
tians, he proceeded to denounce the Poles and Lithuanians as “heretics and
shameless dogs who have returned to the vomit of their infidelity.”  This
tirade was the cause of Falkenberg’s later arrest on charges of scurrilous li-
bel. On the less inflammatory level of legal doctrine, he asserted the princi-
ple of dilatatio.
The able champion of the Polish side was Paul Vladimiri (or Wlodkowic),
a former rector of the University of Cracow and a noted canon lawyer. He
leveled a barrage of counterallegations against the knights. One was that
they had deceived the popes into granting permission for the order’s attacks
on Poland. Vladimiri also maintained that the order’s supposed religious
mission was a mere façade for aggression and land grabbing, and that the
Lithuanians were being attacked even after giving indications of a willing-
ness to live peacefully. The conversion of the Lithuanians to Christianity, he
asserted, was actually being carried out not by the order but by the Poles,
and peacefully rather than violently. Against the dilatatio principle specifi-
cally, Vladimiri invoked Innocent IV’s position, that pagans exercised law-
ful sovereignty over their lands. Consequently, war against them could be
justified only on the ground of actual misconduct—either a refusal to admit
Christian missionaries into the territory or violations of the laws of nature.
The Lithuanians, he insisted, were guilty of neither of these offenses.
The judgment was eventually given by a church commission in 1417. As

so often in litigation, it was a disappointment for both sides. The Polish re-
quest for the dissolution of the Teutonic Knights was denied. (Vestiges of
the order remain in existence to the present day, performing charitable
work.) Nor was there an express repudiation of the doctrine of dilatatio. An
order of silence was even imposed onto Vladimiri by Pope Martin V. On the
whole, though, the Poles had the greater reason to be satisfied with the out-
come, since it was ruled that there was to be no crusade against the united
kingdom of Poland-Lithuania. This had the important effect of weakening
popular support in the region for the knights’ aggressive activities.
Peaceful Ties between the Faiths

It should not be thought that relations between Christians and Muslims
were uniformly hostile during the Middle Ages. Strong economic ties devel-
oped between the faiths—ties that were, in fact, too strong for the liking of
some. As early as 969–70, the Byzantine Empire entered into an agreement
with the Muslim emir of Aleppo for the free traffic of caravans between
Byzantium and the central Asian trading cities. This agreement also pro-
vided for limitations on customs duties and guarantees of the security of
persons.
The various Italian trading cities were not far behind. In the course of
time, there came to be substantial colonies of European merchants in the
ports of the Byzantine Empire and of the Muslim regions. The first of these
were established by merchants from Amalfi in Constantinople and Alexan-
dria in the eleventh century. A statute regulating the affairs of the Venetian
colony in Constantinople dates from 1082, although the settlement itself was
older than that. Pisa also had a colony in Constantinople by 1111, and in
crusader-ruled Acre by 1179, as well as in a place called Subilia (probably in
modern-day Tunisia) by 1166. By the early thirteenth century, the European
merchant community in Alexandria was some three thousand strong. In
1127, Genoa signed a treaty regulating access to and from Muslim ports in
Spain. It also had a Constantinople colony by 1155, as well as one in Bougie
in Tunisia by 1164. In 1275, it concluded a commercial treaty with Egypt,
enabling it to import slaves into Egypt and to export sugar to the European
markets. In 1251, the city of Venice concluded a very detailed commercial
treaty with Tunis. This was followed by a similar one with Egypt in 1297,
providing for protection of commerce and merchants, as well as for visits to
the holy sites under escort.
The papacy looked upon these burgeoning ties with considerable misgiv-
ings, fearing that these trading ties were strengthening the hand of the en-
emy side in the Crusades. As early as 971, the Byzantine government, simi-
larly concerned, pressured Venice to ban trade in what would now be called
strategic goods with the Muslim states. Weapons and timber were in this
category, as well as weaponry such as swords, lances, and breastplates. This
apparently had only a limited effect. When English Prince Edward (soon to
be King Edward I) arrived in crusader-held Acre in 1171, he was appalled to
discover Venetian merchants transporting arms and provisions from there
to Alexandria.
To deal with this concern, the Third Lateran Council, in 1179, adopted a
canon prohibiting all trade with Muslims in war materials. A similar ban
was promulgated in 1215 by the Fourth Lateran Council. This provided that
offenders were to be barred from churches until they had paid full damages
for their misdeeds and sent those damages on to the Holy Land. After the
fall of Acre to the Egyptians—the last crusader foothold on the Levant main-
land—in 1292, the ban was extended to cover all trading with the Muslims.
Pope Clement V issued a bull to this effect in 1308. As a penalty, he decreed a
loss of all civil rights, such as the right to inherit bequests, and even enslave-
ment. In 1311–12, he authorized the Knights of St. John (the Knights Hospital-
lers, now known as the Knights of Malta) to capture ships of Christian mer-
chants violating the rules and to sequester their cargoes. In 1326, Pope John
XXII decreed that anyone who even contended that it was lawful to sell non-
war materials to Muslims be condemned as a heretic and excommunicated.
The bull In coena Domini (“At the table of the Lord”), promulgated by Pope
Urban V in 1363, contained a long list of antisocial acts that the faithful were
admonished not to commit. These included the supply of arms, ammunition,
and war materials to Saracens, Turks, or other enemies of Christendom.
Not surprisingly, human ingenuity, in combination with the lust for prof-
its, proved equal to the task of circumventing these apparently absolute and
draconian rules. The papacy itself gradually entered the business of making
exceptions to its own rules. It is a fascinating story that has yet to be re-
counted in detail. For present purposes, it is only necessary to emphasize a
key constraint operating on the papacy in its attempts to control trade with
Muslim lands: the fact that nonadherence to the Christian religion was sim-
ply not, per se, a violation of natural law. Consequently, non-Christians could
not be deprived of their natural-law rights on the ground of their status as
nonbelievers.
It was not too difficult to accept this principle in the case of Muslims, whose
civilization was highly developed—in many ways more advanced than that of
the European Christians. The universalist outlook of natural law would, how-
ever, be subjected to a much greater challenge when Europeans made contact
with other, more exotic cultures. The northeastern crusade had provided
some telling indications of problems that could arise. But even more serious
challenges lay ahead.
Finding New Lands Abroad
By the end of the Middle Ages, European expansion was going further afield
than ever before, with the Atlantic seaboard kingdoms of Spain and Portu-
gal taking the lead. As early as the fourteenth century, there was exploration
of the west coast of Africa, leading to the discovery of the Canary Islands.
The following century, Portuguese mariners ventured much further down
the African coast. Over a period of some forty years (1419– 60), about thirty-
five expeditions sailed from Portugal (although only eight of them were
initiated by the famous Prince Henry the Navigator). Portugal even
founded settlements on islands far out in the Atlantic (Madeira in 1425 and
in the Azores in 1427). Contacts with African societies were not always
peaceful. There were attacks, for example, by Portuguese knights against
unarmed fishermen on the coast of Mauritania, as a result of which Prince
Henry forbade the use of force except in self-defense.
Somewhat later, Spain, too, became active in exploration. In 1492, the Ital-
ian mariner Christopher Columbus, sailing for Spain with the grand title of
Admiral of the Ocean Sea, made a landing in the West Indies and estab-
lished a settlement on the island of Hispaniola. Shortly after this, colonists
arrived on other West Indian islands. More spectacular by far were the con-
quests of the two great Indian empires of the American mainland, those of
the Aztecs (in 1519–22) and the Incas (in 1533).
An immediate and obvious problem regarding all these new lands—new,

that is, to Europeans—was to determine who had ownership of them and on
what basis. The difficulties involved became apparent as early as the four-
teenth century, when Spain and Portugal advanced rival claims to title to
the Canary Islands. It has been observed that these had been (purportedly)
granted by Pope Clement VI to Luis de La Cerda in 1344, but with no practi-
cal result. Effective European control over the islands was only achieved
early in the fifteenth century, when two French noblemen established a
settlement—and also obtained the surrender and conversion to Christianity
of the native king of Lanzarote. This time, lordship of the islands was ob-
tained, by way of a feudal act of homage, from the king of Castile instead of
from the papacy.
The Portuguese government, however, contested the validity of this pur-
ported grant by Spain. The result was a scholarly contest between advocates
for the two sides—the first major example of a detailed legal dispute over
title to territory. In support of its cause, the Portuguese government en-
listed two Italian professors of law: Antonio de Rosellis (who taught canon
law at the University of Padua) and Antonio Minucci da Pratovecchio (who
taught civil law and canon law at the Universities of Florence, Padua, and
Bologna). Their principal contention was that the native Canarians had
obstinately refused to allow missionaries to preach the Christian faith and
that Portugal had taken it upon itself to wage a just war against them for
this offense.
To counter these claims, the Spanish government enlisted an equally
distinguished figure: an ecclesiastic named Alfonso (or Alonso) de Carta-
gena. From a family of converts from Judaism, Alfonso studied civil and
canon law at the University of Salamanca and later served in various
church positions. He was also an active diplomat and translator of classi-
cal texts. In 1437, he published his Allegationes . . . super conquista insula-
rum Canariae (Allegations about the Conquest of the Canary Islands). His
principal contention was that the islands had formed part of the old Vi-
sigothic kingdom—or, alternately, that the Visigothic kings had possessed
at least a right of conquest—and that the present Castilian monarchs were
the successors to those prior rights. The dispute, fortunately, was eventu-
ally settled by the parties (as will be seen), but the affair provided a telling
fi rst glimpse of legal problems that could so easily arise in exploration
activities where there was so little precedent. In this regard, much more
was to come.
Dividing the World

The popes took an interest in these endeavors, especially those along
the west coast of Africa. They even claimed the right to grant out these ter-
ritories—an assertion supported by Bartolus of Sassoferrato. His Treatise
on Islands contended that the popes had jurisdiction over all islands not
adjacent to determined countries. Clement VI’s exercise of this right, re-
garding the Canary Islands, occurred during Bartolus’s lifetime. Papal in-
volvement in the exploration process continued in the following century.
In 1452, Pope Nicholas V, in the bull Dum Diversas (“Until Different”), au-
thorized Portugal to subjugate infidels, conquer their kingdoms, and re-
duce them to slavery.
Three years later, in 1455, Nicholas V followed this up with another bull,
Romanus Pontifex (“Roman Priest”). This granted to Portugal “the right of
conquest” of a somewhat vaguely defined portion of Africa extending
through “all Guinea and beyond toward that southern shore.” The king of
Portugal was given the right “to invade, search out, capture, vanquish, and
subdue all Saracens and pagans whatsoever, and other enemies of Christ
wheresoever placed . . . and to reduce their persons to perpetual slavery.” He
was also authorized to legislate and to levy taxes in the area. Trade with
Saracens was permitted except in materials useful for war. Penalties for in-
fringement of this grant were specified: excommunication for individuals,
interdict for communities. The following year, Pope Callixtus III, in a bull
entitled Inter Caetera (“Among Other [Works]”), reaffirmed Nicholas V’s
grant and supplemented it by giving sole ecclesiastical jurisdiction over the
area to the Order of Jesus Christ (a military order, of which Prince Henry
was governor).
Rivalry between Spain and Portugal continued. Sometimes, it proved pos-
sible to resolve, or at least alleviate, it by means of bilateral agreements. A no-
table example was the Treaty of Aloaçoves in 1479. Portugal finally dropped
its claim to the Canary Islands in favor of Spain, with Spain in return con-
ceding Portugal’s title to Guinea, as well to the Cape Verde Islands, Madeira,
and the Azores. The treaty was approved two years later by Pope Sixtus IV.
That the Portuguese government was sternly watchful of its rights under
this treaty was forcefully demonstrated to Christopher Columbus during
his first voyage to the New World. En route back to Spain, he put into the
Azores under pressure of weather, only to be promptly arrested by the Por-
tuguese governor of the islands for suspected illegal trading with Africa in
violation of the treaty. He was allowed to continue his voyage only after
these suspicions were allayed.
With Columbus’s discoveries in the New World, the rivalry between the
two exploring nations became more heated than ever. The papacy then en-
tered the picture again. In 1493, the very year after Columbus’s arrival in the
West Indies, Pope Alexander VI (originally from Spain, as it happened) is-
sued two bulls, dated to two successive days and both entitled, rather con-
fusingly, Inter Caetera. The more important of these measures was the
later Inter Caetera bull, dated May 4, 1493 (though actually drafted some
months later than that and backdated). Superseding all previous pronounce-
ments, it drew a north-south demarcation line, located one hundred leagues
west of the Azores and Cape Verde Islands. Newly discovered lands west of
the line were given to Spain, and east of it to Portugal. The two countries were
granted trade monopolies in their respective zones—with interlopers auto-
matically excommunicated. In return for these privileges, the two countries
were to take on the task of converting the native populations to the Catholic
faith. The trade monopolies were designed to cover the cost of the conversion
efforts.
The Portuguese government was displeased at this arrangement. It pre-
ferred an east-west dividing line to a north-south one, and it was resentful at
the loss of its previous claims. Rather than resorting to the pope, it entered
into direct negotiations with Spain, resulting in the Treaty of Tordesillas in
July 1494. The principle of a north-south division was retained, but Portu-
gal was placated by a westward shift of the dividing line, which was now
placed 370 leagues west of the Azores and the Cape Verdes. Differences soon
surfaced over just what the length of a league was. A supplementary treaty
was concluded the following year to deal with this difficulty (in Portugal’s
favor). Still outstanding, though, was the problem of allocation of zones in
the Eastern Hemisphere. This was eventually resolved, in 1529, by another
bilateral agreement, the Treaty of Saragossa. Its effect was to allocate the
East Indies to Portugal and the Philippines to Spain.
Once the geographical issues were more or less resolved, it became appar-
ent that the zones allocated to the two countries were very different. Portugal
had one large land mass, Brazil, that was suitable for European settlement,
but otherwise, its zone comprised areas of Africa that were chiefly employed
as sources of slaves for New World plantations and mines, plus the Indian
Ocean region, where an elaborate trading system long predated the Portu-
guese arrival. Portugal’s chief task was therefore to make its trading monopoly
in the Indian Ocean region effective against would-be European interlopers.
Spain’s zone, in contrast, comprised the huge land mass of the Americas (apart
from Brazil). Important questions arose, though, as to the true legal nature of
its title to those lands.
Spanish Sovereignty over New Lands

There was not much in the way of firm legal doctrine or precedent for the
acquisition of sovereignty over newly discovered lands. The Roman-law heri-
tage was, potentially, of some assistance, since it contained detailed rules on
the acquisition of title to property. These consisted of “derivative” modes (ac-
quisition from a prior owner by purchase or gift) and “natural” modes (acqui-
sition of title to something not previously owned by anyone). But there were
many difficulties. For one thing, there was uncertainty as to whether these
rules applied to the acquisition of land territory or political sovereignty by
states, as opposed to acquisition of movable goods by private individuals. In
the absence of a clear and agreed set of rules, a certain amount of improvisa-
tion was called for. When Columbus made his various landings in the Carib-
bean area, he would typically plant flags on the land. Rather more theatrical
was the action of the Spanish explorer Vasco Nuñez de Balboa. Upon arrival
at the Pacific coast of the Isthmus of Panama in 1513, he waded into the wa-
ter breast-deep, in full armor with drawn sword, brandishing the banner of
Castile—purporting, by this gesture, to claim the whole of the ocean, together
with the lands on its shores, for his monarch. But there were grave doubts as to
the actual legal effects of these ceremonies.
One of the more remarkable facts of history is how serious the concern
was over the legal niceties of New World empire building. One historian has
referred to “[t]he juridical passion of the Castilian monarchs and their ad-
visers,” which entailed “an obsessive desire to justify in theory . . . all their
doings and especially all their wars.” To appreciate the context in which
the various debates took place, it should be noted that the Spanish conquest
of the New World took place gradually, in stages. Individual expeditions of
conquest required prior approval, or licensing, by the Spanish crown. The
immediate concern of the government, therefore, was over the criteria that
governed the issuing of these licenses. On this question and others con-
nected with New World affairs, the advice of scholarly experts was assidu-
ously sought. This was done by way of consultations known as juntas (mean-
ing “council” or “committee”), the first of which took place in 1503.
In the course of time, a number of different theories were canvassed over
Spain’s entitlement to acquire sovereignty over its New World possessions.
A brief survey of each of them will provide a highly instructive light on in-
ternational legal mentalities of the period, as applied directly to issues of the
highest importance. It will also reveal the strengths, weaknesses, and logical
consequences of the various competing legal doctrines.
Papal Grants
A first possible basis of Spanish legal title was the various papal grants dis-
cussed previously. The thesis was that the pope, as the ultimate sovereign of the
entire world, could allocate absolute ownership of territories, in the manner of
a landowner distributing his land to other persons. On this theory, Spain
would be regarded as the full sovereign of the areas allocated to it. More
specifically, it meant that the Spanish were already the lawful rulers of the
allocated territories even before the material conquests were effectuated.
The conquests on the ground must therefore be regarded merely as the acts
by which possession of the territories was effectively secured. The attraction
of such a thesis to the Spanish crown is easily seen.
The papal-grant theory received strong support at a junta held at the Do-
minican monastery of San Pablo in Valladolid in 1513. The occasion was the
dispatching of an expedition to Panama, under the command of Pedro
Arias de Ávila (often known as Pedrarias Dávila), to relieve Balboa of his
command. King Ferdinand of Spain ordered its departure to be delayed,
pending a consideration of the question of just wars against the natives by a
committee of theologians. Two of the more noteworthy participants at this
session were Matías de Paz and Juan López de Palacios Rubios. Paz was a
Dominican friar and professor of theology at the University of Salamanca.

Palacios Rubios was a distinguished lawyer and member of the Council of
Castile.
Paz set out this thesis in an exposition entitled De Domino Regum His-
paniae super Indios (On the Dominion of the Spanish King over the Indies).
This was noteworthy in relying on the papal grants as the sole basis of legal
title of the Spanish monarchs. The views of Palacios Rubios were expounded
in a work entitled De Insulis Oceanus (On the Islands of the Ocean Sea). He
contended that, even granting the position of Innocent IV that pagan princes
possessed lawful sovereignty, that sovereignty could be revoked from them
by the pope and transferred to other rulers (i.e., the Spanish crown). Nei-
ther of these works, however, was published at the time.
Palacios Rubios did not shrink from the full logical consequences of his
thesis. It meant that the Spanish crown had sovereignty over the New World
territories even prior to the conquests on the ground. The task of the Span-
ish in the New World was therefore to inform the natives that they now had
a new sovereign in the hope that they would quietly accept the new state of
affairs. If they proved uncooperative on this point, then they could be law-
fully subdued by force—as rebels against their lawful sovereign, not as sub-
jects of an independent foreign prince.
To facilitate this process of taking control of territories already granted,
Palacios Rubios outlined a procedure that became known as the re-
querimiento. It appears to have been modeled on prior Islamic practices,
which the Spanish became aware of during their reconquista of the Iberian
peninsula. In essence, the “requirement” was a summons or ultimatum
that was read out to the population of the area that the Spanish were intend-
ing to conquer. It informed the people that the Spanish were now their law-
ful sovereigns and called upon them to accept this state of affairs. As such, it
has been derided by one modern historian as “surely the crassest example of
legalism in modern European history” and by another, scarcely more gently,
as “a strange blend of ritual, cynicism, legal fiction, and perverse idealism.”
The text of the requerimiento began with a (necessarily brief) recitation of
the history of the world. This included the key information that the pope
had been made “lord and superior to all the men in the world” by God and
that he had allocated the lands of the Indians to the monarchs of Castile.
The hearers were invited to inspect the documents proving this, if they so
wished. They were then called upon to “acknowledge the Church as the
ruler and superior of the whole world” and the Spanish monarchs as their
“lords and kings” and to permit Christian clerics to preach the faith. They
were expressly assured that they would not be compelled to convert to
Christianity against their own wishes. But they were required to acknowl-
edge their political subjection to their new sovereign. If they refused (the
Indians were told), the Spanish would “forcefully enter into your country
and . . . make war against you . . . and . . . subject you to the yoke and obedi-
ence of the Church” and of the Spanish monarchs. Slavery and confiscation
of property would follow. A notary was to be present to record in writing
that the requerimiento had been duly issued.
The first recorded employment of the requerimiento in the field was in
1514 on the Caribbean coast of what is now Colombia. It appears to have
been taken fairly lightheartedly by the Spaniards on that occasion, with sto-
ries of its being read out to trees and empty huts or intoned from the decks
of ships as they approached Indian territories. But there was no significant
contemporary opposition to it. It was dutifully employed by Hernán Cor-
tés in his famous conquest of Mexico in 1519–22. It may have been read out
to the Incans in 1532 in Cajamarca, by Pizarro’s chaplain Valverde—who
was later to sojourn at San Esteban—although there was doubt on the point.
The requerimiento continued to be employed until the 1540s. Its last use ap-
pears to have been in a campaign against Chichimec Indians in Mexico in
1542. It was read out on that occasion by a friar who stood prudently out of
arrowshot range of the Indians—but probably beyond the range of audibil-
ity, too.
From a legal standpoint, the requerimiento was far from airtight. To be
effective, it would have to be heard and understood by the native popula-
tions. Making the requerimiento audible over a significant distance would
have presented a challenge. Comprehension of it would have posed an even
greater difficulty, since there is no evidence of the requerimiento’s ever hav-
ing been translated into any of the native American languages. Unless a
translator was ready to hand on the Indian side, the requerimiento could
only have been so much incomprehensible gibberish. In recognition of this
problem, a Spanish ordinance of 1526, promulgated by the Council of the
Indies (the governing body for the Spanish colonies in the New World), re-
quired its proclamation in the native languages by interpreters.
More fundamental than the problems with the requerimiento were the
doubts were voiced, even from within the fold of the Catholic Church itself,
over the ability of the popes to confer sovereignty over territories onto secu-
lar rulers. One of the doubters was a young scholar named Domingo de
Soto, who was working as a teaching assistant to Vitoria at the University of
Salamanca—and who would later be his successor in the theology chair
there. In a section of his relection De Dominio (On Dominion), in 1534–35,
he held that the popes had no power to confer sovereign rights onto the Span-
ish and Portuguese monarchs. Soto’s master, Vitoria, voiced the same con-
clusion in his De Indis relection of 1539. The pope, he argued, was not the
lord of the whole world. He could confer no sovereign powers onto kings
and princes “because no one can give what he does not have.” He could
therefore allocate spheres of missionary activity to Spain and Portugal but
could not grant sovereignty.
Despite these misgivings, the Spanish and Portuguese governments, to-
gether with their legal servants, continued throughout the sixteenth and
seventeenth centuries to assert that the papal grants did confer actual sover-
eignty onto their recipients. The most prominent advocate of this thesis—
who has been described as “the chief jurist of the [Spanish] empire”—was the
Spanish cleric Juan de Solórzano y Pereira. A native of Madrid, he spent
twelve years at the University of Salamanca—that veritable hub of New
World studies—and then became a professor immediately upon graduation.
But the major part of his career was spent in royal ser vice, which included
an eighteen-year stint as a judge in the audiencia of Lima (in 1609–27).
Upon his return to Spain, he served on the Council of the Indies. His mas-
sive study of colonial law, De Indiarum Jure (The Law of the Indies), written
in 1629–39, served as the de facto official statement of the Spanish govern-
ment position on colonial issues. In this work, he insisted firmly on the va-
lidity of the papal donation as the basis of Spain’s title.
Acquiring Title by Just War

An alternative basis of title to the New World territories was acquisition by
means of a just war. The Spanish government began to incline in this direc-
tion as it reduced its reliance on the requerimiento. A decisive step was the
promulgation of a set of ordinances in 1526. These stipulated that all licensed
expeditions of conquest must be accompanied by two clerics, and that their

prior written consent was a prerequisite to the employment of armed force.
If war was waged contrary to this policy, then the expedition contract was to
be revoked. Remarkably, the constraints imposed by the Spanish govern-
ment sometimes did have effects on the actual conduct of the conquerors.
When the audiencia of Guatemala insisted on adherence to these laws, the
would-be conquistador Juan Pérez de Cabrera abandoned his conquest
campaign rather than submit.
For the justification of the use of force against the Indian realms, general
just-war doctrine had a crucial attraction: that it was well established and
widely accepted. It had two important drawbacks, though. First was the
obvious problem of determining whether the criteria for just wars were ac-
tually met in the cases at hand—that is, whether there really was a iusta
causa of the kind required. Second was the question of whether even a just
war could entail a right of outright conquest. The weakness of the Spanish
case on both of these counts was exposed by Vitoria in his two famous relec-
tions of 1539.
Vitoria devoted the bulk of his attention to the question of iusta causa. A
thorough analysis of this issue was his most distinctive contribution to the
debates over the Americas. He began by endorsing the standard canon-law
position (going back to Innocent IV) that, prior to the Spaniards’ arrival,
the Indians possessed lawful dominion over their lands. He then carefully
considered a list of seven possible justifications for war against the Indians,
finding all of them unpersuasive after close argument. Among these “unjust
titles” (as he called them) were the punishment of violations of natural law,
the claiming of title by right of discovery, and purported grants of sover-
eignty by an emperor or pope. These were regarded as altogether invalid in
principle as justifications for war.
Without mentioning the requerimiento explicitly, Vitoria included
among his unjust titles a failure on the natives’ part to convert to Christi-
anity upon hearing “a simple announcement” of the faith. Only if the Indi-
ans refused to convert in the face of “miraculous signs or other reasons for
belief” could compulsion be used—that is, if they positively repudiated the
Christian faith rather than merely passively declined to join it. Vitoria
added darkly that he had received no information of any such signs. “On
the contrary, I hear only of provocations, savage crimes, and multitudes of

unholy acts.”
Vitoria then proceeded to identify eight bases on which, at least in prin-
ciple, conquest of the Indians could be justified. These included possible vio-
lations by the Indians of various rights of the Spanish, such as a right of
“natural partnership and communication.” War could also be justified for
the purpose of spreading information about the Christian faith, protecting
converts, and defending innocent persons against tyrannical rulers. Mental
incapacity on the part of foreign peoples could also justify their conquest.
Vitoria carefully held back, however, from pronouncing on whether any of
these justifications had actually been present at the time of the conquests.
The nearest that he came was in his endorsement of the lawfulness of assist-
ing allies who were fighting a just war. He cautiously noted that “[t]his is
what is said to have happened” during Cortés’s campaign in Mexico, when
the Spanish allied themselves with an Indian state that was fighting against
the Aztecs.
Even the existence of a iusta causa did not necessarily entitle the just side
to embark upon a war of conquest. Just-war principles, Vitoria insisted (in
another of his relections), must apply to pagans as they did to Christians—
and those principles allowed the just side to go no further than the correc-
tion of the wrongful conduct that had justified the war. They did not confer
a right onto the just side to depose the unjust prince and annex his state.
Vitoria made it clear that he looked with equanimity on the Spanish giving
up their conquests. No great prejudice would occur, he maintained, since
trade relations with the Indian states could still continue. But he also con-
cluded, in his parting words, that “once a large number of barbarians have
been converted, it would be neither expedient nor lawful . . . to abandon al-
together the administration of those territories.”
The Natural-Slavery Thesis

It will be recalled that, in classical times, even writers as enlightened as Ar-
istotle held that barbarians were the natural inferiors of Greeks and, as such,
fit chiefly for slavery to them. In the age of the Renaissance, which was
strongly marked (or even defined) by a high respect for classical antiquity,
this argument found a number of ready supporters, even though it was con-
trary to natural-law doctrine, which allowed slavery only as a punishment
for crime. (The ius gentium allowed it, in addition, for prisoners of war.) As
early as 1503, at the very first of the Spanish government-organized juntas,
the applicability of this thesis to the Americas was debated. Participating in
the discussion were theologians and canon lawyers, as well as royal council-
lors. Their conclusion was that, according to human and divine law, the In-
dians should serve the Spaniards.
The most prominent intellectual champion of this theory was a Scottish
writer named John Mair (or Major). Mair was based chiefly in Paris, where
he moved in the humanist circles of Erasmus and Rabelais and became a
teacher of theology. He later returned to Scotland to serve as principal of the
University of Glasgow, also writing a history of Britain and then serving as
provost of St. Salvator’s College in the University of St. Andrews. In 1519,
during his time in Paris, he wrote a work on the Sentences of Peter Lombard
(the prominent twelft h-century theologian), which contained what has been
called “the first extended theoretical treatment of Spain’s actions in Amer-
ica.” In his exposition, Mair expressly invoked the views of Aristotle con-
cerning the natural fitness of certain persons for servitude. The peoples of
the New World, he confidently asserted (without having traveled there or
met any of them), “live like beasts, wherefore the first person to conquer
them, justly rules over them because they are by nature slaves.” In 1521, a
government-organized junta supported Mair’s position for the enslavement
of the New World Indians.
There were, however, many misgivings about enslavement of the Indians.
Palacios Rubios (the legal mastermind behind the requerimiento), for exam-
ple, agreed with Aristotle and Mair that the Indians were incapable of self-
government. But he also insisted that the Indians could not be enslaved if
they dutifully accepted their status as Spanish subjects.
The fatal blow to the natural-slavery thesis was delivered by the Vatican.
In 1537, Pope Paul III issued a bull entitled Sublimis Deus (“The Sublime
God”). It expressly rejected the contention that Indians should be treated as
“dumb brutes created for our ser vice,” denouncing that proposition as a ca-
nard put about by Satan. The true position, the pope declared, is that “the
Indians are truly men and that they are not only capable of understanding
the Catholic faith but, according to our information, they desire exceedingly
to receive it.” Even those Indians who remained outside the faith “are by no
means to be deprived of their liberty or the possession of their property; nor
should they be in any way enslaved.” This ruling was echoed in the New
Laws that were promulgated by the Spanish crown in 1542, barring enslave-
ment of Indians on any ground whatsoever.
A more moderate version of this thesis held that the Indians were incapable
of self-government and that consequently, as an act of charity, the Spanish were
entitled to take them under their care—that is, to extend their political sover-
eignty over them. Vitoria conceded the force of this argument in principle,
although he stopped short of holding that the American Indians actually were
in such a state of disability. Solórzano, however, writing in the seventeenth
century, did take a stand on this question—and concluded unambiguously,
in a detailed analysis, that the Indians were fully human and rational, so that
the argument based on their incapacity for self-government was invalid.
The Dilatatio Principle—and a Great Debate

It has been observed that there was significant support for the thesis that the
papal awards of the fifteenth century had merely been allocations of spheres
of missionary activity and not grants of sovereignty over territory. That did
not rule out the possibility, however, that the one might lead to the other.
Moreover, there was a readily available legal doctrine tailor-made to accom-
plish just that intellectual jump: the principle of dilatatio, which was now
applied to the New World rather than to northeastern Europe.
In the reopened debate over dilatatio, the doctrine was justified on the
basis of a more fundamental general principle of law: that, if jurisdiction is
granted or a duty imposed, then the party affected must be understood to
possess everything necessary to exercise the jurisdiction or perform the
duty. On this thesis, the Spanish rulers could be entitled to acquire sover-
eignty over the Indian kingdoms as an adjunct to, or instrument of, the
conversion process. This argument is interesting because it effectively con-
ceded that the pope did not directly grant sovereignty to Spain. Instead, he
granted the right to acquire sovereignty by means of forcible self-help, if that
was necessary to effectuate the task of conversion.
With this argument, Vitoria had considerable sympathy, listing it among
the potentially valid bases of Spanish title in his 1539 relection. He conceded
that the pope “has power in temporal things insofar as they concern spiri-
tual things.” It was also within the pope’s discretion to entrust evangeliza-
tion programs to single states exclusively—and that this can even include a
monopoly on trading rights “if this is convenient for the spreading of the
Christian religion.” He went on to hold that monopoly trading rights in the
allocated areas were necessary for the orderly progress of missionary activ-
ity and therefore were legally valid. Moreover, popes had the power to “dis-
tribute” the territories of Saracens to Christian princes “for the preservation
of peace and the progress of religion.” That meant that popes had the power
to “make new princes for the furtherance of religion . . . in places where there
had never before been any Christian princes.” At the same time, though,
Vitoria introduced an important cautionary note. If the Indians, of their own
free will, allowed missionaries to come among them and preach, then there
would be no need, under the circumstances, for the Spanish to depose their
rulers and conquer their kingdoms.
Not surprisingly, the king of Spain, Charles I (better known in his capac-
ity as Holy Roman Emperor Charles V), was displeased to find his policies
publicly questioned by self-appointed critics. He ordered the prior of San
Esteban monastery to stop his charges from debating this sensitive matter.
At the same time, though, Charles revealed that doubts were gnawing
away even in governmental circles. In 1550, he ordered a suspension of all
conquest expeditions and the convening of a special panel of theologians
and advisers, to determine the criteria for the lawful waging of wars of
conquest.
These deliberations took place in Valladolid in 1550–51—and turned into
a momentous debate over issues of international law. There were fourteen
judges. Vitoria was not one of them, as he had died four years earlier. But his
former student and assistant (and future professorial successor) Domingo
de Soto was the leading member. Soto had left the academic life in the 1540s
for royal ser vice, representing Spain at the Council of Trent and serving as
confessor to Charles V. By this time, though, he was back at Salamanca. His
fellow panel members were three other prominent ecclesiastics and ten gov-
ernment officials.
Of greater prominence than the panel members were the opposing advo-
cates. Arguing against the policy of conquest in the ser vice of conversion
was a Dominican bishop named Bartolomé de las Casas. He was the most
renowned champion of the rights of the native populations of the New

World. Originally from a prominent merchant family of Seville, he emi-
grated with his father to Hispaniola in the West Indies in 1502, during his
teens. There, he became a plantation owner, employing local Indians as slave
labor and even participating in military expeditions and slave raids against
the Indians. But his life’s vocation was to lie in a dramatically different di-
rection. In 1510, he became a priest, the first to be ordained in the New
World. The decisive change in his life, though, took place the following year,
when he attended an eloquent sermon by a Dominican friar named Antonio
de Montesinos, who denounced mistreatment of the native peoples of the
Americas by the Spaniards. Las Casas was thereby inspired to enter the
Dominican order himself and to make the welfare of the Indian population
the great mission of his life.
On other side of the debate, and favoring the dilatatio doctrine, was a fa-
mous classical scholar named Juan Ginés de Sepúlveda. Originally from
Córdoba in southern Spain, Sepúlveda moved to Italy, where he attained
great prominence. His skills as a classicist brought him, in 1526, the post of
official translator for the papal court, charged with rendering the writings of
Aristotle into polished Ciceronian Latin. For centuries to come, his transla-
tion of the Politics would be the standard one in Europe. On returning to
Spain, he also translated Aristotle’s Nicomachean Ethics. He encountered trou-
ble with the church, however, with the writing of a work called Democrates se-
cundus (subtitled “Just War against Barbarians”) in 1544. In this work, he
followed Mair in endorsing the Aristotelian doctrine of natural slavery and
asserting its applicability to the native populations of the New World—
which, like Mair, he never personally visited. As this position was contrary to
official church doctrine, it was swift ly condemned and denied publication by
the theology faculties of the Universities of Salamanca and Alcalá, although it
circulated widely in manuscript form. It also earned Sepúlveda a gift of two
hundred pesos worth of jewels and clothing from grateful readers in Mex-
ico. Following this rejection by the two universities, he wrote to Charles V’s
son Philip (the future king of Spain, then serving as regent of Castile) in 1549,
demanding a public debate on the subject.
The official purpose of the Valladolid conference—it was not actually a
legal trial—was to decide on the best method to be employed for the conversion
of the Indians. But it was clear that the crucial point of contention between
Sepúlveda and las Casas was the validity of the dilatatio principle. Las Casas
came to the contest more heavily armed, at least in quantitative terms. He
presented the panel with a 550-page treatise (Argumentum apologiae), which
appears to have been an early version of his major work, In Defense of the
Indians. It argued against the Spanish policies and in favor of a strategy of
winning natives over to the Christian religion exclusively by peaceful
means. On the question of the law applicable to the conquest of pagan peo-
ples, las Casas closely followed Vitoria. Like his predecessor, he conceded
the existence of a number of just grounds for war, including forcible occupa-
tion of Christian lands, impeding the preaching of the truth faith, and wag-
ing aggressive war against Christians. But he was more explicit than Vitoria
had been in his emphatic denial, based on firsthand knowledge, that any of
these abominable acts had actually been committed by the Indians.
Las Casas’s stance on the two main issues—the natural-slavery question
and the validity of dilatatio to justify conquest—is of interest. On both, he
conceded the legal validity of the principles and rested his case on the facts
instead. That is, he accepted the Aristotelian thesis that some persons are
naturally suited for the condition of servitude. But he then vigorously ar-
gued that, as a matter of fact, the Indians of the New World did not fall into
that category.
He took a similar approach to dilatatio. Like Vitoria, he basically con-
ceded its validity. But he went on to argue that it could only serve as a justi-
fication for conquest if the acquisition of sovereignty was, in fact, truly nec-
essary to effectuate conversion. In his opinion, it was not necessary. On the
basis of his own extensive experience in the Americas, he insisted that con-
version could be brought about by more moderate means. Specifically, the
Spanish could establish missions on their own territories near the frontiers
with Indian states and then demonstrate, by example, the superiority of the
Christian life. The natives, he believed, could be relied on to recognize that
superiority and then to adopt the religion voluntarily—with no actual need
for Spanish political rule.
Sepúlveda advanced four arguments in support of the Spanish conquest
policy. The fi rst was that the various sins committed by the Indians (in-
cluding idolatry and sundry sins against nature) justified war against
them. Second was the classic Aristotelian argument that the base nature of
the Indians made them naturally suitable for the role of servants to the
more advanced and civilized Spaniards. Th ird was the dilatatio principle.
And fi nally, he argued that Spanish rule provided increased protection to
weak and vulnerable natives. It is noteworthy that none of these argu-
ments alleged the commission of any offense by the Indians against the
Spanish specifically, though the first one rested on violations of general
natural law.
This spirited juridical showdown, unfortunately, produced all too little in
the way of concrete results. The adjudicating panel proved annoyingly re-
miss in its duty to arrive at an agreed resolution of the issues. One problem
was that Soto was called away to another urgent duty, attendance at further
sessions of the Council of Trent. There is evidence that, by 1557, nearly all of
the panel members had composed individual opinions, but these have been
lost. It appears that Soto abstained, and that a collective judgment was never
arrived at, despite the earnest efforts by the Council of the Indies, continu-
ing over a period of some years, to obtain one.
Las Casas has been said to have won “a technical victory” in that Sepúlve-
da’s treatise remained suppressed (not to be published finally until the late
nineteenth century). But the fact remains that no judgment was rendered.
The affair appears to have rekindled Soto’s interest in legal issues relating to
the New World. In the period following the debate, he published a treatise,
entitled De Ratione Promulgandi Evangelium (On the Promulgation of the
Gospels), analyzing the legal basis of Spain’s rulership of the New World.
Sadly for present-day scholars, this text has been lost.
If the great debate at Valladolid had little immediate impact, the position
of las Casas won official favor in the longer run, largely as a result of the
work of a lawyer named Gregorio López de Tovar. Originally from Guada-
lupe in Spain and educated at Salamanca, he served the Spanish government
in various high capacities, including the important post of president of
the Council of the Indies (in 1543– 60) at the time of the Valladolid debate.
He appears never to have visited the New World, but he was married to the
niece of Francisco Pizarro. López was seen as an opponent of Vitoria, in that
he, unlike Vitoria, supported the validity of the papal grants as a basis of
Spanish sovereignty over the Americas. But he revealed the influence of las
Casas, too, in his contention that this acquisition of sovereignty did not en-
title the Spanish to take immediate possession of their territories by armed
force. They had first to attempt to persuade the Indians, by peaceful means,
to submit voluntarily to their new masters. Only if voluntary submission

was refused could conquest by armed force proceed.
López’s position was incorporated, in 1573, into a new legal ordinance
regulating the conquest process. Henceforth, the word “conquest” was to
be eschewed altogether, in favor of “pacification.” In dealings with Indian
groups, the positive benefits of Spanish rule were to be stressed. But it was
also provided that, if the natives were to oppose Spanish settlement and the
preaching of the Christian faith, then force could be used against them.
The Humanitarian Thesis

Another possible root of Spanish title was based on what could be called the
humanitarian thesis, the essence of which was that rulers who committed
systematic violations of natural law in the course of governing could be de-
posed by foreign parties. Its roots lie in the claim asserted by Innocent IV of
jurisdiction of the papacy to punish violations of natural law, even if they
were committed by non-Christians. Pagan princes accordingly risked such
papal intervention if they engaged in or tolerated perverted practices such as
polygamy or the worship of idols.
Applying this reasoning to the situation in the Americas, the contention
was that the native Indian rulers were guilty of various unlawful acts, in the
form of cruelty and oppression inflicted onto their subjects—and that the
Spanish were thereby entitled to wage a just war to put a stop to that wrong-
doing, even though they were not themselves the victims of it. This marks
the first appearance in international legal history of what would later be called
the principle of humanitarian intervention. It was as controversial at its in-
ception as it remains today. Vitoria gave it at least some support, conceding
that it was lawful for the Spanish to wage war against Indian rulers who in-
flicted “oppression and wrong” on their subjects.
The humanitarian argument, in a decidedly generous form, was asserted
most forcefully by the Spanish vice-regal government of Peru. Since there
was doubt as to whether the requerimiento had been read out at the time of
Pizarro’s conquest, it appears that there was greater question than in other
areas as to the validity of Spain’s legal title. The first Spanish viceroy, Fran-
cisco de Toledo, resolved to settle the matter. He did so, largely on the thesis
that the Inca rule which preceded the Spanish one had been exceptionally
brutal, and that the Spaniards were consequently rescuers of the Incan sub-
jects from tyranny. This thesis was set out in 1571 in an anonymous publica-
tion that was clearly inspired by Toledo, entitled “Defense of the Legitimacy
of the Rule of the Kings of Spain in the Indies, in Opposition to Bartolomé
de las Casas.” It referred to the tyranny of the Inca kings and expressly dis-
puted the thesis, asserted by las Casas, that the Incans had been voluntarily
accepted as lords by the people.
Not content with this, Toledo set in motion a formal inquiry into the his-
tory of Incas, carried out in 1570–72. This informaciones process (as it was
officially called) entailed taking testimony from over two hundred Indians
at eleven different locations in Peru. Modern social scientists would look
askance at the methods employed. Elaborate statements were put to the In-
dian witnesses, to which they were then expected to give a simple yes or no
response. The conclusion reached, not surprisingly, was the one that Toledo
obviously sought: that the Incan monarchs had been tyrants and that the
Spanish were welcome deliverers. The informaciones also provided helpful
evidence of such perverted practices by the Incans as human sacrifice and
cannibalism.
The conclusions of the informaciones were promptly attacked by a promi-
nent Spanish Jesuit writer and renowned orator named José de Acosta. He
taught theology at various Jesuit institutions, initially in Ocaña in central
Spain and then (from 1569) in Peru, first in Lima and later in Cuzco. Over a
period of some fifteen years in Peru, he founded a number of colleges and
became thoroughly familiar with the people and conditions there. His ac-
count of his many travels marks him as a pioneer of the science of anthro-
pology. To international law, his contribution was a firm rejection of the
humanitarian justification for Spanish conquest. This was on two grounds.
The first was that, as a matter of fact, the Incan kings had not been cruel op-
pressors as alleged. Second, and more interestingly, Acosta disputed the law-
fulness of humanitarian intervention in principle. Even if the Incan rulers
had mistreated their subjects, that would not justify conquest by Spain. “[I]t
is not lawful,” Acosta insisted, “to rob a thief, nor does the crime committed
by someone else add to our own justice.”
Prescription
A final possible basis of Spanish title was prescription. This was the thesis
that rights claimed and exercised for extended periods of time—even if they
had no legal foundation initially—ripen, with the passage of time, into true
legal rights that other parties are obligated to respect. That is to say, the pas-
sage of time alone can transform usurpation into right. The most prominent
expounder of the prescription thesis was Solórzano. It has been observed that
he insisted on the validity of the papal grants as the basis of Spanish title in
the Americas. But he also endorsed the validity of the prescription thesis.
Reliance on prescription as a basis of title, however, had some weak points.
For one thing, there was doubt as to how long the time interval needed to be
to cut off prior titles and claims. Perhaps more serious (especially as the
length of time of occupation drifted steadily forward) was the objection of
some that prescription was simply not part of natural law at all. It is true that
it was a feature of some legal systems, such as the Roman one—but that made
prescription an institution only of civil law, not of natural law. And in deal-
ings with exotic foreign peoples, it was natural law that governed.
It should not be thought that Spain was the only European power in search
of legal bases for the acquisition of territories in the New World—although
the Spanish were the most obsessive in that worthy quest. In the course of
time, European rivals established their own settlements in the Western Hemi-
sphere, where they faced many of the same legal challenges as the Spanish did.
Rivals and Interlopers
The European maritime powers that had been left out of the Spanish-
Portuguese division of the world were not disposed to remain as mere pas-
sive observers in the race for overseas trade and dominion. The principal
would-be colonial rivals to the Spanish and Portuguese were France, En-
gland, and the Netherlands. The governments of those countries had two
distinct legal tasks facing them. The first was to refute the Spanish and Por-
tuguese monopoly claims. The second was to decide on what legal bases
their own claims to territorial possession could rest. A few preliminary ob-
servations on each of these are in order.
Regarding the Spanish and Portuguese monopolies, the rival govern-

ments, of course, denied that the papal grants could have any effect on them.
At most, they could only have the effect of committing Spain and Portugal
themselves to staying out of one another’s delimited zones. They could not
prejudice third parties. King Francis I of France is said to have scornfully
remarked that he “should be very happy to see the clause in Adam’s will
which excluded me from my share when the world was being divided.”
The English government, not surprisingly, took much the same view. Queen
Elizabeth I, in the late sixteenth century, made it clear to the Spanish am-
bassador that she refused to acknowledge the right of the pope “to partition
the world and to give and take kingdoms to whomsoever he pleased.”
At the same time, it was generally accepted that Spain and Portugal were
entitled to undisturbed possession of areas that they actually possessed and
effectively ruled. That, however, immediately gave rise to the question of
how far the effective possession by those two countries really extended—an
issue on which opinions could (and did) easily differ. An example of this
arose out of slave-trading activities by English seamen along the coast of
West Africa. The Portuguese ambassador to England lodged a formal com-
plaint against this conduct in 1562. English Queen Elizabeth I responded by
conceding that she would not allow her subjects to operate in areas where
Portugal actually had “obedience, dominion, and tribute.” But she insisted
that any areas not actually controlled and effectively ruled must be free to all
comers. She took much the same position when the Spanish ambassador
protested against Sir Francis Drake’s incursion into Spanish territory in the
course of his circumnavigation of the world in 1577–80. Spain, she insisted,
did not have a sufficient presence in the areas navigated by Drake to justify
the exclusion of others.
The essence of the English case was that the Spanish had a right to undis-
turbed possession of whatever lands they actually controlled, but that they
did not have a true legal title to other areas. Discovery of the lands did not,
on its own, confer title. Vitoria shared this opinion. Discovery “of itself,” he
insisted, “provides no support for the possession of these lands, any more
than it would if they [the native rulers] had discovered us.” King Francis I
of France was of a similar mind. “To pass by and eye,” he grumbled, “is no
title of possession.” The conclusion to be drawn from this was clear: that
until and unless the Spanish actually took permanent possession of lands
and continuously governed them, other powers were free to step in, even if
the Spanish had been the original discoverers.
This argument against discovery as a basis of title was, however, only part
of the legal battle facing the non-Hispanic powers. It merely established the
negative proposition that Spain was not the owner of lands that it did not
actually possess and occupy. In those areas, the rival European states were
free to move in. But the question then immediately arose: how were those
new powers themselves going to acquire positive legal title? To this conun-
drum, a number of answers were devised—each one with its distinctive set
of advantages and drawbacks.
Alternative Theories of Title to Territory

One possible basis of title was occupation—occupation, that is, of land that
was unpossessed by anyone else at the time of the European arrival. This
had deep roots in the Roman law of occupatio, which was held to be a prin-
ciple of the ius gentium rather than of the Roman civil law. In its original
application, it enabled a person to acquire full legal title to an object that
previously had no owner (a res nullius, in the technical Roman parlance).
The basic rule was that, once the unowned object was taken physically into
the custody or control of a person, that person thereby became the owner
(assuming that he also had the intention of acquiring ownership).
There were, however, some serious problems with applying occupatio to
the conditions of the New World. For one thing, it was far from clear that
land could be acquired by that means. The Roman law on the subject had
concerned only movable objects. In the Carolingian period, however, French
monarchs had begun to extend the principle to encompass land. An even
greater puzzle was whether the New World territories could really be said to
be owned by no one, since native societies were present there when the Eu-
ropeans arrived.
To deal with this second problem, a variant of the occupation theory was
later devised, under such labels as the “settlement” or the “agricultural” the-
sis. According to this theory, which was much favored by British colonists, an
indigenous population that was nomadic, rather than settled, would not be
regarded in law as having either ownership or even mere possession of a ter-
ritory. Land could be regarded as being possessed only when it was being
cultivated by its occupants—and the first persons to undertake that worthy

chore became, ipso facto, the first true occupiers and hence the legal owners.
The erection of a fi xed dwelling could be a key piece of evidence for posses-
sion in this full sense, as well as the presence of rows of corn or wheat or the
like. This theory received some support in the eighteenth century from the
eminent natural-law writer Emmerich de Vattel.
Another possible basis of title was conquest. This bore an obvious resem-
blance to just war, but with the crucial difference that it relied entirely on the
fact of defeat of the natives in war as the basis of title, without regard to
whether there had been a just cause for the war. This justification, too, was
employed by the English, primarily in their early expansion efforts. It was
the basis of English possession of Ireland, for example, dating from the
original invasion of 1175 (although papal authorization was also claimed for
the invasion). Conquest was also the source of England’s title to the Isle of
Man (from 1406) and to Wales (from 1536). It was natural, then, for the
English to invoke it for their American possessions, too. At least in the early
period of English colonization, in the seventeenth century, the colonies were
consistently described as “lands of conquest.”
Conquest, however, was problematic as a basis of legal title for several
reasons. For one thing, traditional just-war doctrine held that acquisitions
that lacked a preexisting iusta causa conferred no title, but were mere acts of
banditry. Also, English colonists themselves were generally disinclined to
base their title on conquest for a very practical reason: because, according to
English law, lands that were acquired by conquest belonged to the crown.
This meant that they could then be governed by the crown alone, as a matter
of royal prerogative, without any need for legislation by the parliament. It
meant, too, that titles to individual landholdings were granted at the plea-
sure of the crown, instead of inuring automatically to those who had actu-
ally hazarded life and limb to acquire them. These considerations led the
English colonists to prefer occupation to conquest as their legal title. With
occupation, it is the occupier’s own effort that is the basis of the title—with
ownership then belonging to the occupier entirely in his own right.
The most secure possible route to a valid title was to acquire it directly and
explicitly by way of transfer from the natives. Th is would normally be
expected to be in exchange for something in return, but that was not a strict
legal requirement. The legal requirements for cession—again borrowing
liberally from Roman law—were seen to be two: first, a bona fide intention
on the part of the prior owner to part with his title, and second, some out-
ward, formal act of transfer to mark the actual passage of ownership. The
Dutch were the first to make significant use of this method of acquisition.
They also engaged in one of the most memorable applications of it, in their
purchase of Manhattan Island from local Indians in 1626. The payment was
a collection of objects to which legend has firmly affi xed the value of twenty-
four dollars.
The French were the chief supporters of this strategy. More than any
other Europeans, they took care to obtain at least a formal acceptance or
submission on the part of native rulers to their dominion, although no spe-
cific ceremony or form of words was prescribed for this. It must be admit-
ted that the evidence of this consent was sometimes fairly tenuous. This was
instructively illustrated by French explorer Jacques Cartier’s account of a
ceremony in 1534 in present-day Canada. A cross was placed on the terri-
tory, and Cartier and his fellow explorers knelt in prayer before it, with
hands joined. The natives did not participate in the prayer, he conceded, but
they witnessed it and indicated their approval by means of “admiring looks.”
Cartier also claimed that over thirty Indians came to his ships in canoes,
indicating their assent to the cross.
English colonists, too, came to rely heavily on cession (as well as on oc-
cupation, as noted before). An early example was a conveyance of land in
present-day Connecticut by the Mohegan Indians to English colonists in
1640. Sometimes, moral or religious sensitivities provided the motivation
for a policy of purchase. Quakers were especially scrupulous about obtain-
ing consent from native rulers. William Penn, most famously, was careful
to purchase land for his colony of Pennsylvania from the local Delaware
Indians (with a vivid, if imagined, image of the event painted a century
later by the artist Benjamin West). But there were less high-minded reasons,
too. As in the case of occupation, lands acquired by purchase belonged to
the purchaser in his own right, without any dependence on the largesse of the
crown.
Even cession, though, was not without its problems. The principal one
was the question of whether the purported transferor actually had the power
or right to effect the transfer. In European law, there was a venerable prin-
ciple that a prince, being a mere steward of his kingdom rather than an ab-
solute owner, did not possess the right or power to make alienations that
were prejudicial to the welfare of the kingdom. A decretal issued by Pope
Honorius III in 1220, objecting on this ground to a purported alienation by
the monarch of Hungary, was an important early articulation of this idea.
But there was still room for uncertainty as to whether transfers in violation
of this principle would actually be null and void, or whether they would
merely be acts of personal wrongdoing on the native monarch’s part (with
the transferee receiving good title nonetheless).
Claiming the Sea

If, in the Americas, the chief concern of the non-Hispanic states was to find
bases of title of their own to their colonial territories, the challenge in the
Eastern Hemisphere was very different—and so was the response from the
arriviste Europeans. In the Western Hemisphere, the Spanish (and their fel-
low Europeans later) had been concerned to justify their title to the land.
They largely left the sea to look after itself. In the Indian Ocean world, in
contrast, the Portuguese faced a series of well-established states that they
were unable to defeat or dislodge, as the Spanish had done in the New
World. The reason, in large part, was that the Asian populations had prior
exposure to the diseases that the Europeans carried—unlike the American
Indians, whose population was reduced by some 90 percent in the wake of
the Spanish conquests. Moreover, these Asian states had long experience of
their own in international relations—including, of course, the two standard
categories of state practice, diplomacy and treaty making.
What the Asian states do not appear to have had (so far as can be pres-
ently discerned) is any significant doctrinal tradition. That is to say, there is
no evidence that they thought about interstate relations in terms of some
underlying systematic philosophy of human social conduct analogous to the
natural-law system of the European states. It would be rash to assume, how-
ever, that the states of the Indian Ocean basin had made little advance be-
yond, say, the city-states of ancient Mesopotamia or the Chinese of the pre-
imperial era. It is possible that future research will bring great changes to
our current state of knowledge in this regard.
What is clear is that the Portuguese, soon after their initial arrival on the
Asian scene in 1498, concentrated on possessing the sea rather than the land.
With their landholdings confined to a few selected points, such as Goa, Ma-
lacca, and Macao, the principal focus was on trading, chiefly the lucrative
spice trade. The Portuguese claimed a monopoly over this trade, as explicitly
provided for in the papal grants. In this connection, it may be noted that
King Manuel I of Portugal was officially described as “Lord of Navigation
and Commerce in Ethiopia, Arabia, Persia and India.” Nor were the Por-
tuguese content with mere grand-sounding titles. They energetically en-
forced their monopoly claims and, in the process, sought to claim possession
of the Indian Ocean itself, at least vis-à-vis would-be European rivals. The
goal was to establish a “maritime” empire in the truest sense of that term.
There was, however, considerable room for doubting the validity of the
Portuguese claims. In Roman law, for example, there was direct authority to
the effect that seas are not subject to ownership. Nevertheless, the Portu-
guese made a concerted attempt to exercise actual control over Indian
Ocean trading. They established a network of strategic fortifications, bol-
stered by a naval presence, and proceeded to operate what later parlance
would refer to as a protection racket, on a literally oceanic scale. Trading
was allowed only by purchasers of certificates known as cartazes, which
were essentially safe-conduct permits—accompanied by a requirement that
the holder must call at Portuguese ports during the voyage in question.
Merchants having the temerity to trade without acquiring a cartaza risked
being captured or attacked.
Some were bold enough to take that risk. Dutch merchants especially be-
came increasingly active in Indian Ocean trading, especially after the incor-
poration of the Netherlands East Indies Company in 1602. The Portuguese
responded by capturing Dutch ships whenever possible and confiscating
their cargoes. The Dutch reacted in kind, with the result that an undeclared
naval war raged in the Indian Ocean. The Portuguese naturally insisted that
the Dutch, as interlopers, had no legal right to attack or capture Portuguese
vessels in the absence of a state of war between the two countries—whereas
their own activities in that direction constituted not war, but mere law en-
forcement (i.e., enforcement of the papally conferred trading monopoly).
The Dutch East India Company had a redoubtable legal champion on its
side, in the person of Hugh de Groot, better known in Latin rendition as
Hugo Grotius. From a prominent family in Delft, Grotius was something
of a child prodigy, whose pursuits included classical literature and histori-
ography as well as law. His experience in international affairs began early. In

1598, before he was twenty, he accompanied a Dutch diplomatic mission to
Paris. Later, he undertook legal work for the Dutch East India Company, in
the course of which he wrote (but did not publish) a lengthy treatise to jus-
tify the captures of Portuguese vessels in the Indian Ocean by ships of the
Dutch East India Company. He called this work De Indis (On the Indies),
although, when it was finally published in full in the nineteenth century, it
was given the title De jure praedae (On the Law of Prize), under which it is
now commonly known. In all events, Grotius assured the Dutch captors
that they should not hesitate to assert their rights “through an anxious and
overnice avoidance of things not essentially dishonourable.”
Grotius brought a battery of legal arguments to bear against the Portu-
guese and in favor of the East India Company. Central to his case was the
proposition that the high seas, by their nature, are not susceptible of own-
ership as private property. On this thesis, the papal grants could be sum-
marily dismissed as “a vain and empty pretext.” He also devoted consider-
able attention to refuting claims that prescription might be the basis of
Portugal’s rights. He was careful, too, to build a case for the waging of just
war by the Dutch East India Company in its own right, without regard to
whether the Dutch state was itself at war with Portugal.
In his opposition to ownership of, or sovereignty over, the high seas, Gro-
tius built on earlier work by others, specifically on objections that Spain had
made to Venice’s claim to ownership of the Adriatic Sea. In 1564, an attack
on these claims was made by a Spanish writer named Ferdinando Vázquez y
Menchaca. Vázquez was a native of Valladolid, the son of a member of the
royal council of Castile. He studied under Vitoria at the University of Sala-
manca and went on to become a legal adviser to King Philip II of Spain, and
also to teach at Salamanca and to write on questions of natural law. In a book
devoted largely to various issues of private law, he articulated Spain’s objec-
tions to Venice’s claim of sovereignty over the Adriatic. His argument—
adopted later by Grotius—was to the effect that the only possible basis of title
could be occupation—and that occupation of whole seas was impossible be-
cause it required a continuous presence and an effective exercise of govern-
mental power.
In the longer term, Grotius’s labors became better known than those of
Vázquez because they were published separately (and anonymously) in
1609, as a short book entitled Freedom of the Seas, which was a reworking of
one of the chapters of the De Indis manuscript. It caused enough of a stir
to earn it a place on the Spanish Inquisition’s Index of Forbidden Books. In
the event, the book found its principal use in a context different from the
one intended: to contest the lawfulness of a decree by the English govern-
ment in 1604, asserting a monopoly over fishing in the adjacent seas. In
this dispute, the book enjoyed some modest success. A Dutch diplomatic
mission, armed with Grotius’s arguments, succeeded in persuading the En-
glish government to suspend the decree in 1610.
Grotius’s (and Vázquez’s) conclusions were subjected to vigorous chal-
lenge. The principal response came from a Portuguese writer named Serafim
de Freitas, a friar who taught canon law at the University of Valladolid in
Spain. In a book entitled De iusto imperio Lusitanorum asiatico (On the Just
Empire of the Portuguese in Asia) in 1625, he presented what was, in sub-
stance, the Portuguese government’s case against Grotius. He advanced an
array of arguments, including an insistence that the papal grants were bind-
ing on the Dutch, as well on the Spanish and Portuguese themselves. He
disputed the existence of any natural-law right of freedom of trade for indi-
viduals and also contended that there was nothing in principle to bar a state
from exercising an effective control over at least an area of the high seas. His
principal argument, though, was founded on prescription: that Portugal had
begun to exercise its monopoly in the early fi fteenth century and had consis-
tently maintained and enforced it. As a result, it now had legal validity with-
out regard to any defects in its origin.
Similar arguments—apparently independently derived—were expounded
ten years later by an English writer named John Selden. Selden was a poly-
math, lauded by one admiring contemporary as “the learnedst man on
earth.” He was said, among other things, to have been proficient in some
fourteen foreign languages. In addition, he was also a minor poet and a friend
of Ben Jonson and John Milton. Long service in the English parliament proved
eventful, as it included a period of arrest for excessively vigorous defenses of
parliamentary privileges. As a contribution to religious studies, Selden ad-
vanced an interesting thesis of the bisexuality of deities in various ancient
faiths (a theme that is reflected in Milton’s Paradise Lost). In a somewhat
less speculative vein, he took an interest in international law, where his prin-
cipal endeavor, a book published in 1635 entitled Mare Clausum suede Do-
minion Maris (Closed Sea or Sovereignty over the Sea), took issue with
Grotius, largely along the lines set out earlier by Freitas.
One of the most impressive things about these debates over freedom of
the seas and New World conquest and settlement, as well as the earlier ones
about medieval crusading, was the extent to which natural law was, by and
large, accepted on all sides as the governing body of principles. It was all too
appropriate that natural law should do such faithful ser vice, since it was, by
its very essence, a universal (and eternal) set of principles, as applicable in
wind-swept Tierra del Fuego as in the hallowed confines of the Vatican in
Rome. But international law was about to embark upon what might be called
an age of exploration of its own, in which a leading—and growing—role
would be played by natural law’s humble manservant, the ius gentium.
II
Reason and Its Rivals
(ca. 1550–1815)
[B]y mutual consent it has become possible that certain laws
should originate as between all states, or a great many states;
and it is apparent that the laws thus originating had in view the
advantage, not of par ticu lar states, but of the great society of
states. And this is what is called the law of nations, whenever we
distinguish that term from the law of nature.
—Hugo Grotius
The peace negotiations for the Thirty Years War, which took place in
two towns in Westphalia (Osnabrück and Münster), were a major political
showcase. They were not a rushed affair. Talks were originally to have begun
in 1642, but haggling over matters of etiquette and precedence of the dele-
gates kept things from getting under way for some two years. What the
proceedings lacked in urgency, however, they made up for (at least partly) in
style. One ambassador’s train of attendants was so extensive that it is said to
have taken a full hour to pass by any given spot.
The talks were comparably slow-moving. Only after four years of negotia-
tions, in 1648, were two treaties concluded that comprised the Peace of West-
phalia: the Treaty of Osnabrück, between Sweden on the one side, and the
Holy Roman Empire and German princes on the other; and the Treaty of
Münster, between France and the empire and princes. Among the achieve-
ments of the peace was the creation of a new constitutional order within the
Holy Roman Empire. This confirmed the powers of the individual German
states—which they had already been exercising in practice—to act indepen-
dently in international affairs by such means as concluding treaties of alli-
ance and peace. Crucially, however, at least in theory, these powers were not
to be exercised to the prejudice of the Holy Roman emperor himself.
Although the papacy had played an intermediary role in the negotiations,
Pope Innocent X made it clear that he was strongly opposed to the conces-
sion of religious freedom to the Protestant rulers within the empire. He sourly
issued a formal denunciation of the settlement, condemning the peace as
“null, void, invalid, iniquitous, unjust, damnable, reprobate, inane, empty of
meaning and effect for all time.” The message was clear enough, even if the
practical impact was nil.
With the passage of time, the Peace of Westphalia came to assume a sort
of triple identity—first, as a settlement of immediate issues at stake in the
140 Reason and Its Rivals (ca. 1550–1815)
Thirty Years War; second, and more broadly, as a basis for a longer-term Eu-
ropean balance of power; and finally, and most expansively of all, as a model
or metaphor for modern international affairs in general. It is the third of
these that has played the greatest role in the collective mentality of interna-
tional lawyers. In this connection, the Peace of Westphalia has sometimes
been hailed as the beginning of the modern state system or as the founda-
tion event of modern international law. Such claims are largely hollow. In-
ternational law, in the sense of a consciousness of rules that place binding
obligations on states, had existed for many centuries before 1648. Nor did
the peace of that year mark any kind of “constitutional” event in the history
of Europe at large. At most, it was an attempt to bring a measure of long-
term political stability to the European political scene, by way of a kind of
long-term balance of power between the major states.
Over the course of time, the metaphorical aspect of the peace became
more prominent than the true historical one, as “Westphalian” came to be
employed largely as a term of abuse. It has come to be a derogatory short-
hand expression for a picture of world affairs that is fundamentally
anarchical—that is, characterized by jealously independent states perpetu-
ally competing with one another for territorial or other advantages, and ac-
knowledging no superior authority. This bleak stereotype may have only the
most tenuous connection (if even that) to the terms and context of the ac-
tual Westphalian settlement. But, for better or worse, the legend has proved
more potent than the facts.
It should be appreciated, though, that the freedom of states in the anar-
chic “Westphalian” world has never been altogether untrammeled. Admit-
tedly, it is true that, since at least the Reformation, the idea of papal or impe-
rial institutions exercising a permanent oversight or restraint on governments
no longer held sway. But one important component of the universalist vision
of the Middle Ages still remained. This was natural law. It continued to hover
above the various independent states—rather like the emperor over his some-
times overmighty princely subjects—and, at least in principle, to place legal
restraints on their actions.
The comparison extends somewhat further. Just as the Holy Roman em-
peror, though much reduced in power from his medieval days of glory, was
more than a mere cipher, so natural law was more than the whimsical spec-
ulations of bookmen. In fact, its hold over the European mind—if not quite
Reason and Its Rivals (ca. 1550–1815) 141
so much over the doings of craft y politicians—became stronger than ever.

The seventeenth and eighteenth centuries became the golden age of natural-
law thought. Under the imposing heading of “systematic jurisprudence,” it
attracted the detailed attention of some of the finest minds of the era. These
leading minds, incidentally, would nearly all come from lay rather than
clerical backgrounds—another revealing sign of the way in which the world
was changing.
It must be remembered, though, that natural law had a less prestigious
and less prominent partner: the ius gentium. The great story of this era, in
fact, would be the steady—and somewhat stealthy—gain of the ius gentium
over natural law, eventually to a position of equality and even of dominance.
The principal pioneers of this trend were a Spaniard, Francisco Suárez, and
a Dutchman, Hugo Grotius. They certainly did not invent the basic idea that
relations between states are (or should be) governed by law. But they were the
ones who sculpted international law into substantially its modern form. They
did this by loosening—though not severing—the close link between the two
bodies of law that had been forged in the Middle Ages. The effect was to make
international law, for the first time, into a detailed body of specific rules
much like any other kind of law. Like so many pioneers, Suárez and Grotius
would have been dismayed at some of the directions in which their ideas
would later be taken. But that is a development for later in our story. For the
present, the focus is on the creation of international law in its modern sense.
chapter four
Putting Nature and

Nations Asunder
t was traditionally supposed that Alexander the Great traveled with

I a copy of Homer’s Iliad constantly to hand, and that he even slept with it
under his pillow. A similar story arose of the energetic Swedish King Gusta-
vus Adolphus, the most fearsome commander of the Thirty Years War in
Europe (1618–48). His reputed choice of reading material was a ponderous
legal tome entitled On the Law of War and Peace (1625), written by Hugo
Grotius. Of the two generals, Alexander certainly had the advantage from
the literary standpoint. Grotius’s work was a densely learned treatise, heav-
ily weighed down with an interminable mass of humanist learning. So bulky
was it that, if Gustavus had had it on his person at the Battle of Lutzen in
1632, it might easily have stopped the bullets that killed him. But the book
performed heroic ser vice of another sort. It became the leading text of inter-
national law for the next century and more.
New Ways of War and Statecraft
Independent states had existed de facto in Europe since the demise of the
Roman Empire. Only in the thirteenth century, however, with the recovery
of Aristotle’s Politics, did the independence of states begin to be accepted as
a matter of high principle rather than as a sad misfortune and index of hu-
man degeneracy. With the growth and consolidation of the major European
states from the late Middle Ages onward, this sentiment grew steadily.
Along with it, the idea of statecraft as a high art, with distinctive features of
its own, also advanced. Where the medieval manuals for statesmen—the
“mirrors of princes”—were designed to ensure that power was exercised
consistently with morality and religion, there now came to be more concern
that power be exercised so as most efficiently to further the wealth and
power of the state. Utilitarian considerations, in short, were gaining ground
on moral, ethical, and legal ones.
These trends had their effect on international legal thought and practice
in ways that have yet to be fully explored. Nevertheless, it is possible to sin-
gle out three developments that illustrate the postmedieval ethos with par-
ticular clarity. First was the emergence of a strong conception of state sover-
eignty. Second was a range of important changes in the law relating to
war—most conspicuously, the discarding of the principle of medieval just-
war doctrine that precluded a war from being just on both sides. Third was
the emergence of a new attitude to political and military alliances with non-
Christian states. These developments formed the backdrop to the more gen-
eral ideas about the nature of international law itself that would be articu-
lated by Francisco Suárez and Hugo Grotius.
Modern Conceptions of Sovereignty

The idea that corporate bodies, as such, could have rights under natural law
was not accepted in the Middle Ages. Corporate bodies were regarded as
mere “fictional” entities, whose very existence was a kind of gratuitous con-
cession on the part of the ruling authorities. Pope Innocent IV—that veri-
table prince of medieval canon lawyers—was most closely associated with
this doctrine. On this thesis, only a person could be a sovereign, and not a
state as such. In fact, the term “sovereignty” was a product of feudal law, at
the heart of which was the intensely personal, essentially contractual, rela-
tionship between lord and vassal. Only later, and gradually, did sovereignty
come to be attached to states as corporate bodies—with the implication of
state officials as stewards or temporary custodians of a corpus of ongoing
rights.
Two writers in the sixteenth century expressed this new outlook more
than any others. The first was a Florentine scholar whose name would be-
come a byword for wickedness and immorality: Niccolò Machiavelli. Like
Putting Nature and Nations Asunder 145
Aristotle, he saw the state as an independent and self-subsisting entity. More

importantly, though, he pioneered the idea that rulers were not governed by
the same code of conduct as ordinary persons. For individuals, rules of the
Christian religion may be said to be binding. But states, as public entities—
along with the princes who ruled them—lived by a different set of norms
that were peculiar to them.
The other major figure of the sixteenth century presented a sharp con-
trast to Machiavelli. This was the French lawyer Jean Bodin, who wrote in
the second half of the century. Comparatively little is known of his life. He
was born in Angers, the son of a tailor. After studying at the Universities of
Paris and Toulouse, he practiced law in Paris for a time. He was fiercely
critical of Machiavelli’s thought and also religiously devout, although in
precisely what manner is difficult to say. It is possible that he had some Jew-
ish ancestry, and there was some belief that he converted to Judaism during
his life. But he was imprisoned for a time for expressing Protestant views
and was denounced by some as an atheist. He only narrowly missed being
killed in the St. Bartholomew’s Day Massacre of 1572. Perhaps not surpris-
ingly, he was an advocate of religious toleration, although in the tense atmo-
sphere of the period, he kept this opinion largely to himself. Strongly influ-
enced by humanist learning, he maintained that law was better understood
as the product of history than as a set of eternal and unvarying norms. But
his modernism had its limits. In a noteworthy treatise on witchcraft in 1580,
he advocated the burning to death of those found guilty of that heinous
offense.
Bodin’s major work, Six Books on the Commonwealth, was published in
1576. If Machiavelli’s writings were, if anything, too clear and outspoken for
their author’s own good, Bodin’s were of the opposite extreme—so disorga-
nized and dense that it is often difficult to discern what he was really trying
to convey. He is universally hailed as the leading writer on—if not actually
the intellectual inventor of—state sovereignty. But it is no easy matter figur-
ing out just what he said on that momentous subject that was so innovative
or striking. In general, Bodin was a champion of the centralization of the
French state against the various forces of localism. On ths point, he was a
radical and doctrinaire figure. He insisted that sovereignty—meaning, basi-
cally, the rights of the crown—is unitary and indivisible. There can be no
sharing of sovereign rights with lesser members of the community.
Where Bodin’s ideas broke new ground was in seeing sovereignty not pri-
marily as a property or attribute of a prince, but instead in terms of a corpus
of rights with an independent existence, clearly distinct from the person who
might have effective custody of those rights at a given time. Bodin, in short,
advanced the process of conceptually separating states as such from govern-
ments—a seminal step in international law, which would become, in its later
stages, primarily a law between states as such and only secondarily a law of
governments.
Another feature of Bodin’s thought that prefigured later trends was his insis-
tence on a sharp distinction between right and law. Right, he explained, con-
cerns “what is equitable,” whereas law concerns “what is commanded.” The two
had no necessary connection with one another. “Law,” as he forthrightly put it,
“is nothing else than the command of the sovereign in the exercise of his sov-
ereign power.”  In this regard, Bodin figures as a precursor of nineteenth-
century positivism.
It must not be supposed, however, that Bodin rejected the medieval idea
of universalism altogether, or that he was a dogmatic proponent of absolute
and unlimited royal power. That was far from the case, for he carefully in-
sisted on three important limits on royal power. One was that monarchs
must be subject to divine law (i.e., to the commands of God, as expressed in
the holy scriptures). Second, monarchs remained subject to natural law,
which he envisaged not so much in rational terms as in an intuitive way. The
principles of natural law shine forth by their own intrinsic clarity and im-
print themselves in the minds of people—including rulers. This subjection
to natural law meant, among other things, that monarchs were bound to
observe any treaties which they concluded, since the due performance of
contracts was a principle of natural law. The third limitation was that sover-
eigns remained subject to any constitutional constraints that might exist
within their realms.
Only secondarily was Bodin concerned with international relations. He
did not, like Dante, envisage a single world sovereign. He was, however, a
strong believer in the idea of a worldwide human community of peoples—to
the point of regarding the various nations as constituent parts of a “univer-
sal republic of this world.” Natural law was, of course, applicable to the
members of this “universal republic,” but Bodin appreciated that natural
law, on its own, was not sufficient to regulate the relations between indepen-
dent sovereigns. As it happened, though, he did not develop this line of

thought with any clarity. That would be left to Suárez and Grotius, who
would thereby attain the parenthood of modern international law—an
honor that might have, but did not, fall to Bodin.
Changes in the Law of War

Some important new ideas were also being advanced on the law of war. The
most momentous of these was a significant modification of one of the key
features of medieval just-war doctrine: the radical asymmetry between the
rights of the just and the unjust sides. These flowed logically from the under-
lying fact that a war could not be just on both sides. The principle of iusta
causa was strictly objective, so that whichever side was in the wrong had no
entitlement whatever to wage war. This principle underwent an important
change in the sixteenth century. The chief figure in this development was
Vitoria, who expounded upon the subject in one of his famous relections,
entitled De iure belli (On the Law of War), given in 1539—the same year as
his discourse on the American Indians. This relection provides the single
best summation of medieval just-war doctrine.
In this work, Vitoria broke new ground in his exposition of a doctrine of
“invincible ignorance.” In principle, he adhered to the traditional position
that, strictly speaking, a war could be just only on one side. But at the same
time, he conceded that, when there was genuine uncertainty as to which
side possessed the requisite iusta causa, and no prospect of an authoritative
ruling on the question—that is, a state of “invincible ignorance”—then the
war would be treated, for practical purposes, as if it were just on both sides.
Strictly speaking, the war would still not actually be just on both sides. But
the unjust side would be “excused from sin” if it was waging its struggle in
good faith. The important practical result would be that each side would be
regarded as having equal rights to exercise the normal prerogatives of just
belligerents.
Although Vitoria wrote on the laws of war, he could hardly claim to bring
practical experience to bear on the subject. He was, after all, a cloistered
monk and theology scholar. In the generations following him, three major
writers emerged who were considerably more experienced (if not necessarily
wiser) in the ways of the world. These newer writers—all from secular
backgrounds—were men of action and extensive practical experience, and

that showed through in their writings.
The first of the trio was Pierino Belli, who hailed from Piedmont in north-
western Italy. He probably studied law at the University of Perugia. But he
gained significant practical experience in matters of war after becoming
military auditor (i.e., a military judge and legal adviser) to Emperor Charles
V in 1535. He was then promoted to counselor of war by Charles’s son, King
Philip II of Spain. His principal work, On Military Matters and on War, was
written in 1558 and published five years later (dutifully dedicated to Philip
II). In later years, Belli returned from Spain to his home region to serve the
Duke of Savoy in various diplomatic roles. His work had comparatively little
impact at the time. It was rediscovered in the nineteenth century (by the
prominent Italian legal scholar and statesman Pasquale Mancini) and
thereby became a retrospective classic of international law.
A more important figure was Balthasar Ayala. A native of Antwerp, then
part of the Habsburg domains, he was from a prominent family of Spanish
origin. After legal studies at the University of Louvain, he became, in 1580,
an auditor in the Spanish army in the Netherlands. The following year, he
published the first edition of On the Law of War and on the Duties Con-
nected with War and on Military Discipline. He adhered to the substitu-
tion theory of the ius gentium—holding the law of nature to be the law
governing humanity during its golden age (in the Garden of Eden) and the
ius gentium to be the law governing humanity in its fallen state. Conse-
quently, the institutions of war and slavery were clearly placed in the ius
gentium category.
The impact of the new tolerance for wars that were regarded as just on
both sides is evident in Ayala’s writing. He matter-of-factly reproduced Vi-
toria’s conclusions, though in slightly different terms. He distinguished be-
tween two distinct legal concerns. One was the question of the justice of the
war itself, and the other was what he called the effects of war. For a war to be
just, it was necessary that the key criterion of iusta causa be objectively sat-
isfied, in the manner of traditional just-war doctrine. Regarding the effects
of war, however—meaning chiefly the rights of war such as the right to cap-
ture and enslave enemy soldiers—there is equality between the two sides.
This marks the first clear exposition of a principle of the law of war that re-
mains fundamental to the present day: that the rights and duties of the bel-
ligerents regarding the conduct of war are identical, without regard to which
side might have been at fault in instigating the conflict.
The third major figure in writings on the laws of war was Alberico Gen-
tili, who, like Belli, became largely forgotten until rediscovered in the nine-
teenth century (in his case, by the English international lawyer and legal
philosopher T. E. Holland). Gentili was a native of Italy (from the March of
Ancona) who, again like Belli, studied law at the University of Perugia. As
he adhered to the Protestant faith, he left Italy for England, where he became
a professor of civil law (i.e., Roman law) at Oxford in 1587. His principal
contribution to international law was a massive treatise on the laws of war
published in 1598. This was a much more substantial work than that of ei-
ther Belli or Ayala, as it treated the problem of war within a comprehensive
framework of natural-law thought.
According to Gentili, a war could be just on both sides, provided that
each side had “a plausible ground” for resorting to hostilities. The immedi-
ate practical effect was to accord an equal entitlement to both sides to exer-
cise the rights of just-war makers. He even identified this principle of even-
handed treatment of belligerents as the clearest of all of the laws of war. In
explaining the rationale for this conclusion, he resorted to the imagery of
litigation, comparing the impartiality of the laws of warfare to the impar-
tiality of the civil law in “contests of the Forum.”
A conspicuous sign of the new outlook on warfare was the stress of these
writers on formal aspects of warfare over substantive questions of the justice
of the underlying dispute. In particular, there was now a great deal more
emphasis than before on the need for a public and explicit declaration of
war—though no specific form was prescribed. This, too, was an indication
of the fading grip of medieval just-war theory and the gradual trend toward
concentration on what came to be called the formalities (or the conduct) of
war, rather than on the lawfulness of the resort to war. Gentili held the issu-
ing of a declaration of war to be a requirement of natural law. Again resort-
ing to the analogy of litigation, he compared a declaration of war to the
ser vice of a writ in a civil lawsuit.
Another important change from the Middle Ages was a new emphasis on
the manner in which war was conducted. Increased attention was paid, for
example, to the need to enforce discipline among troops. Nearly a third of
Ayala’s treatise was devoted to the topic of military discipline, which in his
opinion called for “a rough and sharp kind of punishment” of misconduct.

Among the topics treated were the question of female camp followers (“a
great disgrace”), the need for regular commissary arrangements, the duties
of various officers, eligibility for ser vice, military oaths, military courts and
punishments, plus various offenses such as disobedience, desertion, cow-
ardice, and theft. Ayala had plainly acquired great insights into human
nature in the course of his military ser vice.
Alliances with Infidels

A third striking indication of the new statecraft in action concerned military
alliances with infidel powers. The traditional view in the Middle Ages had
been that Christian powers should not enter into such arrangements. It will be
recalled that King Alfonso IX of León had been excommunicated in the twelfth
century for committing that sin. Commercial treaties with Muslim and other
non-Christian powers were permitted, but not political or military ones. It may
be noted that this stricture had nothing to do with just-war doctrine. It was
more in the nature of a general precautionary measure. Beginning in the six-
teenth century, however, attitudes—and practices—began to change.
The decisive step occurred in 1536, when King Francis I of France con-
cluded a military alliance with the Ottoman Empire, directed against his
archrival, Charles V. This was done with some caution, in combination with
a commercial agreement. The commercial terms were put in writing, but the
political and military arrangements were secret and oral. The plan was for
the two powers to mount a coordinated attack against Charles V in Italy.
Some cooperation did occur. Turkish troops landed briefly in Italy, and a
French fleet assisted the Turks in besieging Corfu. When Francis made
peace with Charles in 1538, however, the Ottoman alliance lost its chief ra-
tionale, but it did not mark the end of French-Turkish cooperation. In 1543,
a Turkish fleet assisted a French one in besieging Nice. The Ottoman fleet
even wintered in 1543–44 at Toulon, where a slave market and a mosque
were established. This development shocked public opinion and proved a
propaganda gift to Charles V. Later in the century, however, the empire
followed France’s lead by concluding a military alliance with Persia in
1595—although this initiative was directed against the Turks and not
against any Christian power.
It would appear that Francis I had no legal scholars to defend his auda-
cious act of Realpolitik. The position was different in the following century,
though, when the Dutch East India Company concluded an alliance with
the Muslim sultan of Johore against Portugal. Hugo Grotius forthrightly
defended this policy in his unpublished treatise De Indis. He regarded reli-
gious diversity as being of simply no relevance at all. The only thing that
mattered, in his opinion, was the justice of the cause in question. The fact
that (in Grotius’s view) the sultan was in the right, and the Portuguese in
the wrong, in the dispute at hand was all that was needed to justify the
alliance.
Natural Law and the Ius gentium—A Parting of the Ways
The various developments just identified were indications of the ways in

which medieval modes of thought were steadily losing their hold in legal
thought and practice. Accompanying, and underlying, these changes were new
ways of thinking about the very nature of international law. The most out-
standing innovation, by a large margin, was a rethinking of the relationship
between natural law and its less-regarded junior partner, the ius gentium—an
innovation that would mark the birth of international law in its modern
sense. In a nutshell, what happened during the seventeenth century was a
loosening of the hitherto tight bond between these two kinds of law. They
were not wholly divorced from one another—that would not occur until the
nineteenth century—but they were being firmly pulled apart and given clear
separate identities.
This came about as a result of the unsuitability of natural-law doctrine to
a world in which powerful central governments were emerging, based in
territorial states. In certain respects, to be sure, natural law was eminently
suited to serve as a basis of law between sovereigns. Since natural law was
radically cosmopolitan in character, it could, without any difficulty, be held
to be applicable in the furthest corners of the earth, to every single kind of
human society. No law, surely, could be more truly international than that.
In other respects, however, natural law was profoundly ill equipped to deal
with practical questions of international relations. The reason is that natu-
ral law was, from its inception, always seen as basically a set of rules about
interpersonal relations rather than about interstate relations. Nowhere is

this more evident than in discussions of the law of self-defense, which fo-
cused principally on the rights of individuals to use force when assailed by a
wrongdoer. Indeed, just-war doctrine in general had arisen out of debates
over whether individual Christians should refuse to perform military
ser vice.
For a long time, this individualistic character of natural law did not pose
a great difficulty. The reason was that, in the Middle Ages, it was universally
accepted that rulers were subject to the basic laws of human conduct just as
ordinary persons were. The setting in which those rules applied was, of course,
very different, depending on whether the actor was a monarch or a peasant.
But the rules themselves were conceded to be the same. Th is “democratic”
state of affairs became ever less tenable, however, as nation-states came
increasingly to be seen as impersonal corporate bodies, with interests dis-
tinct from those of their citizens and subjects—distinct even from those of
the rulers regarded in their individual capacities.
There came, therefore, to be grounds for thinking that the rules govern-
ing the conduct of states were—at least to some extent—different from those
governing the relations of individuals. And it was this idea that became the
core of later international law. The question then immediately presented it-
self: where were the rules governing the relations of states to come from, if
not from natural law? Fortunately, an answer was at hand—or at least the
raw material for an answer. The necessary rules for interstate conduct could
come from the ius gentium.
In order for this to be feasible, though, it was going to be necessary to
think about the ius gentium in rather different terms than before. This would
not prove to be an easy task. It will be recalled that, during the Middle Ages,
the tendency had been to associate the two bodies of law closely, by way of
either the substitution or the emanationist theory. The emanationist the-
ory, which posited the closest bond between the two, continued to exert a
hold. Soto, for example, endorsed it in his contention that the ius gentium
included “everything that men have drawn as conclusions from natural
principles.”
Second thoughts, however, were growing on this subject. Nowhere is this
more evident than in the somewhat confused opinion(s) of Vitoria. As a
staunch Thomist, he naturally had an inclination toward the emanationist
theory. At one point, he loyally described the ius gentium as a “derivation from
natural law.” But he immediately clouded the picture by conceding that there
were “occasions” when the ius gentium was not derived from natural law. He
proceeded to give four examples: inviolability of ambassadors, the establish-
ment of the sea as common property, the prohibition against enslaving pris-
oners of war, and the principle that it is “inexpedient to drive strangers out of
one’s land.” In those instances, the binding force of the ius gentium rested not
on natural law but instead on “the consent of the greater part of the world.”
This was clearly reminiscent of the dualistic thesis of Isidore of Seville—the
belief that the ius gentium has a different content from natural law, that it
governs things that are outside the scope of natural law.
Vitoria then went on to note that, even if these ius gentium rules are not
actually derived from natural law, they nevertheless have a certain natural-
law flavor. This is evident in the fact that they are (in his conception) binding
on the entire world, without exception—even on states whose governments
have not consented to them or accepted them in any way. This ius gentium
was therefore regarded by Vitoria as, in effect, international legislation, in
that it was based on the collective consent of the world at large. “[T]he consent
of the greater part of the world,” he explained, “is enough to make [a custom]
binding . . . even if a minority disagree.” The ius gentium consequently “does
not have the force merely of pacts or agreements between men, but has the
validity of a positive enactment,” that is, of enacted legislation.
All of this was a little hard to follow, and it must be said that Vitoria’s
thinking was not very coherent or consistent on this question. In the sev-
enteenth century, two later thinkers—Suárez and Grotius—were to bring a
greater measure of clarity to these premonitory sentiments voiced by Vitoria.
The Contribution of Francisco Suárez
The first and most systematic case made during this period for a clear sepa-
ration between natural law and the ius gentium came from the pen of the
Jesuit scholar Francisco Suárez, who wrote in the late sixteenth and early
seventeenth centuries. Originally from Granada in Spain, he taught (like
so many) at the University of Salamanca, but moved to the University of
Coimbra in Portugal in 1597, where he gave a celebrated set of lectures on
law in 1601–3. These were published in 1612 as A Treatise on Laws and God
the Lawgiver. This opus contained his exposition on the topic at hand.
Regarding natural law itself, Suárez offered nothing dramatically new. He
wrote in the rationalistic tradition of Aquinas, holding natural law to con-
sist of “self-evident principles of conduct,” together with “those points which
follow necessarily and by a process of obvious inference from the said prin-
ciples.” Natural law, in other words, concerns rules that are “inherent in
nature.” Where Suárez made an important break with the past was in his
treatment of the ius gentium. In particular, he made two important innova-
tions that would chart the future of international law. First, he explicitly re-
jected both the emanationist and the substitution theories. Second, he as-
serted that the ius gentium, when properly understood, must be regarded as
a law between states as such. In both of these respects, Suárez’s exposition
resuscitated ideas first broached (if only in barest outline) nearly a thousand
years earlier, by Isidore of Seville. Suárez’s discussion, however, was con-
siderably more detailed and systematic than Isidore’s bare outline had been.
Suárez’s affinity with Isidore’s ideas about natural law and the ius gentium
was made clear, for a start, in a negative way—in his explicit rejection of
both the substitution and the emanationist theories of the Middle Ages, con-
cerning the relation of the ius gentium to natural law. The substitution the-
ory, it will be recalled, held the ius gentium to be, effectively, a secondary (and
second-rate) form of natural law, that is, a modified version of natural law
suitable for a fallen humanity expelled from the Garden of Eden. The true
position, Suárez maintained, is that there is only one body of natural law and
that it is sufficiently flexible to govern humanity in both its prelapsarian and
postlapsarian conditions. He also expressly rejected the emanationist the-
ory, insisting instead that anything which is logically deducible from the
basic, self-evident principles of natural law must actually be natural law in
its own right. This is because natural law is, by definition, a comprehensive
logical system comprising basic principles (or axioms) plus the propositions
deducible from them.
The ius gentium, in Suárez’s opinion, falls into the category of “positive
law,” employing a term that had been devised in the Middle Ages. Positive
law, he explained, is human law, “devised and established proximately by
men.” Precisely because positive law is a fruit of human initiative and free
will, it is not derivable from natural law by the force of logical necessity. It
relates instead to “matters which cannot be defined through natural reason

alone.” The ius gentium, Suárez insisted, is rooted in human experience,
with all of its richness and variety, rather than in the iron laws of logic. Its
basis is “the common usage of mankind.”
The precepts of the ius gentium [Suárez pronounced] were introduced

by the free will and consent of mankind, whether we refer to the whole
human community or to the major portion thereof; consequently, they
cannot be said to be written upon the hearts of men by the Author of
Nature; and therefore they are part of the human, and not of the natu-
ral, law.
Suárez’s second major innovation—also foreshadowed by Isidore—was his

assertion that the ius gentium is a law between states as such—the idea that
became the very definitional core of international law. He contended that
the expression “ius gentium” had come to be used, regrettably, in two differ-
ent senses, one of them proper and the other not. The improper usage is the
old Roman-law one, which saw the ius gentium as a global common law deal-
ing with the transactions of private parties. These were laws, Suárez explained,
“which individual states or kingdoms observe within their own borders” and
which “are similar and are commonly accepted” in the national legal sys-
tems of states around the world. But this kind of law, he insisted, is really
only the civil law of the states concerned. Quite different from this, in
his opinion, is the proper usage of the term “ius gentium”: to mean “the
law which all the various peoples and nations ought to observe in their rela-
tions with each other.” 
Another important contrast between natural law and the ius gentium
should be carefully noted. Natural law is not, by its nature, a theory specifi-
cally about relations between states. It is primarily a set of rules for interper-
sonal relations in general. It is true that natural law is applicable to states—
but only in the indirect sense that rulers are subject to it, just as ordinary
people are. The ius gentium is very different. It is a law that is specifically
directed to regulating interstate relations.
It is unfortunate that Suárez’s terminology was confusing. The original
meaning of ius gentium in Roman law had been the corpus of private law
common to most or all nations—that is, precisely what Suárez was now
asserting to be the improper meaning of the term. What he claimed as the

proper meaning of the term—a customary law agreed among states—was
altogether foreign to Roman law. Later generations (as will be seen) would
adopt different terminology for what Suárez called the ius gentium proper.
They would label it the “voluntary” (or “volitional”) law of nations. Later, it
would more commonly be called the “positive” law of nations. The impor-
tant point, though, is that Suárez was the first (since Isidore) to articulate the
idea of a corpus of man-made international law alongside—and distinct
from—natural law, and devoted specifically to the sphere of interstate
relations.
Suárez did not insist that the ius gentium (in its proper sense) be abso-
lutely uniform throughout the world. Echoing Isidore (once again), he
merely held that it is observed “as a general rule, by almost all.”  The
implication—though not spelled out explicitly—was that the ius gentium is
essentially contractual in character. It arises from agreement between states
and is therefore binding only upon states that are actually parties to the
agreement in question. This view was importantly different from that of
Vitoria, for whom the ius gentium had a legislative character and was there-
fore binding on all states. The difference in viewpoint is an indication of the
extent to which Vitoria was still in thrall to the dominant medieval view of
the ius gentium as closely allied to natural law, in contrast to Suárez’s clear
separation of the two.
Given that Suárez’s ius gentium was seen as man-made and as contractual
in character, the logical implication was that it could be altered. Th is, too,
was in marked contrast to the changeless and eternal character of natural
law. In practice, however, as Suárez readily acknowledged, changes could be
made only with difficulty, since the general consent of all nations would be
required. But there was at least no theoretical barrier to change.
It should not be supposed that Suárez believed that the ius gentium and
natural law were utterly independent of one another. He conceded that there
was necessarily a sort of family resemblance between them, given that both
were rooted in the fundamental principle (derived from Aristotle) of the
natural sociability of humankind. The ius gentium is therefore “in harmony
with nature itself,” in the sense that it does not contradict natural law. It is
best regarded as a supplement to natural law, an exercise of human lawmak-
ing activity in areas where natural law conferred a freedom to operate. As
Suárez explained, the ius gentium “has such a close relationship to nature . . .
that it has grown, almost by a natural process, with the growth of the
human race.”  Natural law therefore provides a certain measure of guid-
ance to the content of the ius gentium—but this is merely in the nature of a
general indication, since Suárez adhered consistently to the position that the
ius gentium is not derivable from natural law by the canons of logical deduc-
tion alone.
In certain respects at least, the two bodies of law were envisaged as work-
ing in a kind of partnership, with the ius gentium operating, so to speak,
closer to the ground. While natural law prescribes and forbids certain forms
of conduct, it does not specify penalties for infringement. In legal parlance,
it would be said that natural law operates exclusively at the normative level—
meaning that its task is to articulate standards of conduct. The important
ancillary task of enforcement falls within the purview of the ius gentium.
The illustrations that Suárez gave were the enslavement of prisoners of war
and the capture of enemy property by the just side in war. He explained
these as punitive measures, infl icted upon the unjust side for its wrongful
and violent resistance to the rule of law. As such, they are features of the ius
gentium rather than of natural law.
According to Suárez, the ius gentium can depart from the natural law in
refraining from imposing punishments for violations of certain natural-law
rules—although the ius gentium cannot, of course, actually contradict or
annul the laws of nature themselves. As examples, he gave prostitution and
the use of deception in contracts (provided that it was “not excessive”). Al-
though natural law forbids both of these acts, it is common for states to re-
frain from inflicting punishments for them. Such acts are still evil, to be
sure, and, as such, they continue to be prohibited by natural law. But they
are not punishable in human courts of justice. The ius gentium may there-
fore be regarded as, in general, more tolerant of human foibles and moral
weaknesses than the more rigorous and unbending law of nature.
For a concrete illustration of the interrelation between the two bodies of
law, Suárez appealed to diplomatic law. The admission of ambassadors from
foreign states into a state’s territory, he maintained, is not obligatory under
natural law, but it is required by the ius gentium. Once a ruler elects to admit
a foreign ambassador, however, natural law kicks in to provide the ambassa-
dor with a range of immunities from the local law. In Suárez’s explanation,
the envoy is admitted pursuant to a tacit understanding between the two

states that the immunities will be granted, and natural law requires that this
understanding be duly honored.
The result of Suárez’s exposition was to present a dualistic picture of in-
ternational law, reminiscent of that of Isidore but far more detailed. Interna-
tional law, in this view, consists of two conceptually distinct bodies of law.
First is natural law. This is not a law applicable to states alone, but to all hu-
mans, from the highest to the lowest. It is applicable to states, though, in the
sense that princes are bound by it in the course of their governmental func-
tions, just as common people are in their day-to-day lives. The second com-
ponent of international law is the ius gentium proper. In contrast to natural
law, this is a positive (i.e., man-made) law applicable only to states as such,
arrived at by agreement between the states.
It must be noted that here, too, some watchfulness is required concerning
terminology. In this dualistic outlook of Suárez, there is still no single expres-
sion for “international law” that covers both bodies of law. “Ius gentium” may
translate literally as “law of nations,” but it referred to only one of the two
component types of law, not to both of them in combination. Nevertheless, the
importance of Suárez’s careful exposition of his ius gentium proper, as a corpus
of law applicable solely to interstate relations, can hardly be overstated. It con-
stituted the conceptual core of international law in its modern sense, set out in
clear and explicit form for the first time—and thereby qualifying Suárez as yet
another worthy contender for the elusive title of “father of international law.”
The Contribution of Hugo Grotius
The figure who carried Suárez’s conception of the man-made ius gentium to
the wider world was Hugo Grotius. We have encountered him in the ser vice
of the Dutch East India Company, as an opponent of claims to sovereignty
over the high seas. In the ensuing years, his promising career suffered an
abrupt reversal. He found himself on the losing side in bitter theological
debates, when supporters of more tolerant and moderate forms of Protes-
tantism lost power within the Dutch Republic to partisans of the more rig-
idly Calvinist persuasion. Grotius’s principal political patron was put to
death, and he into prison. He managed to escape from captivity by the all-
too-appropriate ruse of concealing himself in a crate of books. (A crate on
display in the Rijksmuseum in Amsterdam is asserted to be the one that was

employed, but there are rival containers for which the honor is claimed.) He
fled to Paris, where he lived for most of the rest of his life.
It was during this period in exile that he wrote the work for which he is
chiefly remembered: On the Law of War and Peace, published in 1625 and
dedicated to King Louis XIII (who was helpfully providing the impecunious
sage with modest financial support). There were four further editions dur-
ing Grotius’s lifetime, and another published immediately after his death. In
later years, he acted as Sweden’s ambassador to France—although this oc-
curred only after the death of his royal admirer, King Gustavus Adolphus.
Grotius’s famous book was a sprawling affair, swarming with allusions to
classical and biblical history, in the standard humanist style of the time (al-
though by modern tastes, it can seem to be some kind of monstrous carica-
ture of that style). Three major topics were treated. First came a general ac-
count of the nature and kinds of law. Included in this was a discussion of
sovereignty, which has led to Grotius’s being regarded as an important fig-
ure in the history of political theory.
The second portion of the book was an extended and detailed exposition
of substantive natural law, covering such topics as the origin, nature, and con-
tent of property rights; punishment for wrongdoing; performance of con-
tracts; and much besides. There may have been little here that was truly origi-
nal, but Grotius’s exposition was entirely without precedent in its length and
thoroughness. Medieval treatments of natural law had generally been ex-
tremely brief—little more than very basic statements of broad principle. It
will be recalled that, in the entire Middle Ages, there had been no systematic
treatment of the subject. Even Suárez had not attempted it. For this reason,
Grotius’s book justly became the great founding text of the age of systematic
jurisprudence in the seventeenth and eighteenth centuries.
The third part of the book is the one that is of most interest to interna-
tional lawyers. It was a substantive exposition of the law relating to war. This
included not only a discussion of just-war principles but also a detailed con-
sideration of questions relating to the conduct of war and to the making and
interpreting of peace treaties.
In terms of his overall treatment of international law, Grotius’s chief con-
tribution was to expound the thesis that had been put earlier by Suárez, of a
ius gentium that is man-made and distinct from natural law. His exposition,
in fact, was very considerably inferior to that of Suárez in terms of clarity and
detail. Only with difficulty can the many gems of Grotius’s thought be sepa-
rated out from heavy silt of pretentious humanist scholarship. But Grotius at
least provided a new label for the man-made law between states: the “volun-
tary (or volitional) law of nations” (ius gentium voluntarium). Despite the
inferiority of his treatment of the subject as compared to Suárez (whose
prior work he did not acknowledge), it was Grotius’s exposition that exerted
by far the greater influence on later writers. The race, it has been acutely
observed, is not always to the swiftest.
On Natural Law
Grotius’s conception of natural law, like Suárez’s, was squarely in the line of
rationalist thought from the Middle Ages. His definition of natural law as “a
dictate of right reason” was virtually identical to that of Aquinas. He ex-
plicitly voiced a preference for a mathematical approach to the subject, with
conclusions rigorously derived from axioms in the manner of Euclidean ge-
ometry. He clearly distinguished natural law from divine law, which con-
sisted of the commands of God. Natural law, as a purely logical system, was
stated to be entirely self-standing, owing nothing to God. In a famous state-
ment in his prologue, Grotius went so far as to assert that, even if there were
no God at all, natural law would still exist in its full and complete form.
On this basis, Grotius is sometimes credited with achieving the “secular-
ization” of natural law. This is woefully incorrect, since natural law had been
a secular body of thought from its inception. The rationalist tradition of
natural law in particular was thoroughly nonreligious in character. Long
before Grotius wrote, Aquinas had expressly pointed out the powerlessness
of God to alter the laws of logic. Suárez, too, had preceded Grotius on this
point, expounding at length, in the Thomist vein, on the powerlessness of
God himself to alter the principles of natural law.
On the Voluntary Law of Nations

Following Suárez, Grotius sharply distinguished the voluntary law of na-
tions from natural law, with the voluntary law governing “the mutual soci-
ety of nations in relation to one another.” Only the terminology was new
with Grotius, not the concept. Grotius agreed with Suárez that natural law
and the voluntary law of nations spring from different sources. Natural law
originates in the very nature of the world as such, particularly in the
mathematical-like principles of deduction and inference that govern the world
of reason. As Grotius put it, there are “definite reasons” for rules of natural
law. Rules of the voluntary law of nations, in contrast, arise out of agreement
between states and therefore derive their “obligatory force” from “the will of
all nations, or of many nations.” As Grotius explained,
by mutual consent it has become possible that certain laws should origi-
nate as between all states, or a great many states; and it is apparent that
the laws thus originating had in view the advantage, not of particular
states, but of the great society of states. And this what is called the law
of nations.
It is worth emphasizing that Grotius did not regard the voluntary law of na-
tions as a type of customary law. The reason was that custom, according to
Grotius, comprised unilateral action by states. Since unilateral acts by any
one state cannot have the effect of imposing legal obligations onto other
states, custom cannot amount to law. The voluntary law of nations, in con-
trast, arises from “mutual consent” between states and is legally binding for
that reason. This meant, in turn, that Grotius agreed with Suárez in re-
garding the voluntary law of nations as essentially contractual in character.
Grotius also joined Suárez in regarding the voluntary law of nations as
not being wholly independent of natural law. They have different sources—
the one rooted in reason and the other in agreement among states—but they
operate in tandem in several respects. As Grotius put it (somewhat vaguely),
the rights protected by the voluntary law of nations are “in some degree de-
rived from the law of nature,” even though the voluntary law itself is a hu-
man contrivance. One way in which the two can work together is for the
voluntary law to clarify natural law. Natural-law rights, as Grotius explained,
can “acquire a kind of support” from the voluntary law, against such threats
as “the uncertainties of conjecture.” 
Another way in which the two bodies of law can work together is for the
voluntary law of nations to modify the rigors of natural law. (On this point,
too, Suárez was first in the field.) When the demands of natural law are
greater than frail humans can be expected to observe with strictness—as
they frequently are in the area of warfare—then the voluntary law of nations
can step in to relieve humans from the strict application of natural law. It
can achieve this by prescribing that some act that violates natural law will
nonetheless be exempt from punishment by earthly authorities. Strictly
speaking, the voluntary law of nations cannot actually alter the natural law
in any way—that is, it cannot transform an act that is unlawful under natu-
ral law into one that is lawful. It can only hold back from inflicting a
punishment.
It is apparent, then, that Grotius (like Suárez) did not break entirely free
of the medieval picture of the ius gentium as being connected to natural law.
The principal significance of his voluntary law of nations did not lie in any
assertion of complete independence of the two. Instead, it lay in Grotius’s
insistence (echoing Suárez and Isidore) that the voluntary law of nations is
wholly man-made and that it is therefore not a direct and ineluctable logical
emanation from natural law. But this thesis, limited and cautious though it
was, was of the highest importance. It proved to be the first step—though no
more than that—toward severing the ius gentium entirely from natural law
and relegating natural law to what was sometimes called the “court of con-
science.” Grotius himself never went anywhere near so far as that. But his
taking the first halting step in that direction was enough to enable the posi-
tivists of the nineteenth century to claim him as a forebear.
Grotius aped Suárez in identifying the field of diplomatic relations as a
key illustration of the voluntary law in action. Another important area was
reprisals. It has been observed that the essence of reprisals, as the practice
had developed in the Middle Ages, was the collective responsibility of citi-
zens for wrongs committed by any one of them against foreign nationals.
There were also cases in which the wrongful act was committed by a sover-
eign rather than a private party—most commonly, in the form of a refusal
or failure to grant justice to a foreign claimant. Since taking reprisals against
a sovereign was, in practice, difficult or impossible, the voluntary law al-
lowed reprisals to be taken instead against the ruler’s subjects. Grotius ad-
mitted that this practice of taking action against surrogates of wrongdoers—
rather than against the wrongdoers themselves—was not part of natural
law, which did not allow innocent persons to suffer for the acts of guilty
parties for which they bore no responsibility. But it was not actually contrary
to natural law. Consequently, states were allowed to introduce the practice
by way of “custom and tacit consent” in response to “the demands of usage

and human needs.”  Grotius sometimes referred to rights conferred by the
ius gentium as “secondary” rights, in contrast to primary rights, which are
the gift of the law of nature.
Grotius therefore followed Suárez (and ultimately Isidore) in holding a
dualist conception of international law—seeing it as a sort of partnership
between the voluntary law of nations and those portions of natural law that
are relevant to interstate relations. For it must be remembered that Grotius—
once again like Suárez—did not for a moment deny that natural law was
applicable to kings, as well as to ordinary people. It can even be said that
Grotius’s primary interest was in natural law rather than in the voluntary
ius gentium. Far from paying close attention to contemporary state practice,
Grotius carefully informed his readers that he had deliberately chosen to
give no attention to current affairs. For concrete illustrations of points
made, he resorted instead to classical and biblical writings. His principal
self-appointed task, as explicitly stated in his treatise, was to systematize the
natural-law component of international law. The man-made part, he
stated, does not lend itself to systematization because it varies according to
local conditions and is subject to the capricious free will of humans instead
of the eternal and inexorable laws of logic.
It was this general dualistic outlook—far more than any specific
doctrines—that became the distinctive feature of what was to be called the
“Grotian” approach to international law. No more than Suárez did Grotius
proffer a single term—such as “international law”—to refer to both natural
law and the voluntary ius gentium in combination. That step was soon to be
taken, but not by Grotius.
On War
In his treatment of the laws of war, Grotius was also hardly a trailblazer.
Gentili, a generation earlier, had published his systematic exposition. Gro-
tius’s approach differed in some respects from his predecessor, but not sig-
nificantly. His principal contributions were two. One was that he applied the
dualistic approach to his analysis of war, thereby discussing the various le-
gal issues from the distinct standpoints of natural law and the voluntary law
of nations. Suárez may have preceded Grotius in expounding the dualistic
framework of international law, but it was Grotius who applied that frame-
work in detail in the concrete context of warfare. His second major contri-
bution was to identify what became the canonical just causes of war from
the standpoint of natural law.
The just causes of war according to natural law were identified by Grotius
as being three in number. First was defense. It must be emphasized that
this did not mean self-defense, in the sense of repelling an actual attack. It
meant preemptive action to counteract an impending attack or serious threat
of some kind. The second just cause was the obtaining of something that
was owing by another state but was being withheld. An example would be a
case in which part of a state’s territory was being occupied by a foreign power.
Force could be used to recover it. This second category also encompassed a
use of force to obtain compensation owing for a past wrong. The third just
cause was punishment of another state for past misconduct.
The heritage of medieval just-war doctrine is clear in all of this. Especially
clear is that Grotius’s idea of just war, like its medieval predecessor, con-
cerned the justice of resorting to offensive war, in the sense of entitling the
just side to strike the first blow. Even the category of defensive war is offen-
sive in this sense, since it envisages that the just side would mount a preemp-
tive attack—that is, would strike the first blow—to ward off the threat that
was impending. As a consequence, self-defense in the face of an actual, on-
going attack was not within any of the types of just war.
Also outside the category of just war was another type of action that later
lawyers would refer to as humanitarian intervention: the use of armed force
to prevent a tyrannical ruler from oppressing his own subjects. This falls
outside the category of punitive war because it is envisaged that the armed
force will be directed not toward the chastisement of the wicked prince
(much though he may deserve it), but rather toward relieving the suffering of
the oppressed subjects. Grotius favored allowing the use of force for this no-
ble purpose, while holding back from qualifying it as a war. Nevertheless,
it may be regarded as, in substance, a sort of quasi-just war.
Very different was the treatment of just war from the standpoint of the
voluntary law of nations. In the eyes of the voluntary law of nations, there
was no bar, even in principle, to a war’s being just on both sides. So there
was no need to make use of Vitoria’s principle of ignorance. The criteria for
a just war under the voluntary law were formal rather than substantive, with
the principal requirement being a declaration of war. In such conficts, both

belligerents are equally entitled, in principle, to exercise the rights of war
(such as killing and capturing enemy soldiers).
Concerning the conduct of war, the voluntary law of nations contained
various modifications of natural law. For example, the voluntary law (but
not the natural law) prohibited killing by use of poison in warfare. An-
other important modification concerned the capture of enemy property.
Natural law placed two important limitations on this right: first, that only
property belonging to actual wrongdoers could be taken; and second, that
the maximum total amount of property that could be taken must not exceed
the value of the damage done by the wrongdoer’s original injury. The volun-
tary law of nations relaxed both of these strictures. It allowed the capture of
property from any national on the enemy side, without regard to personal
wrongdoing. And it placed no ceiling on the amount of property that could
be taken.
The Impact of Grotius

If Grotius’s achievements appear, when viewed against the backdrop of
history as a whole, fairly modest, many later writers judged otherwise.
The German lawyer G. F. de Martens, writing in the late eighteenth cen-
tury, hailed Grotius as the “father of . . . the law of nations, equally natu-
ral and positive.”  The twentieth-century American legal phi losopher
Roscoe Pound credited him—rather generously—with founding interna-
tional law “almost at one stroke.”  There may be exaggeration in these
assessments—perhaps leavened with ignorance of the prior work of Suárez—
but there is at least some truth in them, too. Grotius’s treatise became the
leading text from which practically all treatments of international law took
their departure.
More than any specific doctrines, Grotius bequeathed to his successors a
general outlook on the broad structure of international law. It was the dual-
ist perspective, with its distinction between natural law and the voluntary
law—that is, the laws of nature and of nations, respectively—that became
the basis of what has been called the “Grotian tradition” in international
law. Grotius had the remarkable posthumous fortune of being regarded as
a major progenitor of both of these branches of international law, revered
alike by later positivists and natural lawyers. His reputation only seemed to
grow, even as the actual reading of his famous book fell increasingly out of
fashion. The early twenty-first century saw him cited as an authority in a
World Court judgment.
This extraordinary fame might lead one to think of him as some kind of
Galileo or Newton of international law. But he was nothing of the sort. His
instincts were firmly in the past, in the rationalist tradition of natural law
extending back to Aquinas. He would be horrified to be thought of—as he
sometimes is—as a pioneer of later repudiations of natural law. But in this,
too, there is some truth. For the distinction between natural law and the vol-
untary law did turn out to be an important step along the road to the positiv-
ism of the nineteenth century. Grotius would not have dreamed of going
down that path. But he did erect a signpost that others chose to follow.
The Hobbesian Challenge
A severe challenge to the international law vision of Suárez and Grotius came
from a younger contemporary of those two: an English political theorist and
general philosopher named Thomas Hobbes. Born in 1588, as the Spanish
Armada neared British shores, Hobbes was a self-described “child of fear”—a
sentiment that played a central role in his political thought. Hobbes is found
on few people’s lists of international lawyers, but that is unjust, for he played
an important part in the development of the subject.
Hobbes began his career as a tutor to one of the great noble households of
England, in which capacity he took his charges on the grand tour of Europe
and became acquainted with intellectual circles in early seventeenth-century
Paris. His early writing was on the nature of man, a subject to which he
brought a strongly materialistic approach, duly earning him enemies in or-
thodox theological circles. With the outbreak of civil strife in his home coun-
try after 1640, he prudently departed to Paris, this time for an eleven-year
stay. During this period, he served as tutor to the future King Charles II,
then in exile after the defeat of the royalist forces in the English Civil War.
Hobbes’s principal activity of the Paris period, for present purposes, was the
writing of his best-known work, Leviathan, published in 1651, just prior to
his return to his home country.
In certain respects, Hobbes’s work represented a frontal attack on the

natural-law tradition in general, including that of Grotius (even though
Hobbes never troubled to deal with Grotius’s writing in any detail). But in
other respects, that is not so. For Hobbes certainly did not question the ex-
istence of natural law as such. He did, however, put forward a radically un-
orthodox view of its contents. In addition, he departed from previously ac-
cepted wisdom by rejecting natural law’s important companion doctrine:
the innate sociability of the human species. It has been observed that this
belief had been closely connected to natural law throughout the Middle
Ages—although it was, at the same time, conceptually distinct from it.
Hobbes was the first major writer to effect a clean breach between the two.
In place of the Aristotelian principle of innate human sociability, Hobbes
substituted a picture of the human race that was derived from a theory of
individual human psychology in which the rational pursuit of self-interest
in general, and of security in particular, was the central value. Where tradi-
tional natural-law thought regarded the state of nature as Edenic, without
conflict, Hobbes saw it as a veritable cauldron of competitiveness and tur-
moil. He regarded human life, in short, as fundamentally asocial, with each
individual left to survive as best he or she was able in the face of constant
threats to that survival and of constant competition for key resources. Life
in this state of nature was all too likely to be, in Hobbes’s notorious phrase,
“solitary, poor, nasty, brutish, and short.” Some have regarded this as a
cynical and hopelessly reductionist image of human nature—with Hobbes
as an all too worthy successor of Machiavelli. Others have hailed his writing
as a welcome breath of realism and as the birth of a new political philosophy
rooted in the rights of individuals.
Fortunately, it is not necessary, for present purposes, to take sides in this
still lively debate. It suffices to note the drastic change that Hobbes’s views
entailed in natural-law thought—and, indirectly, the impact on international
legal ideas that flowed from it. Hobbes’s version of natural law was, in com-
parison with that of Aquinas and his followers (including Grotius), ruthlessly
stripped down. Although he set out no fewer than nineteen laws of nature,
just two of them were of universal and fundamental importance. One of
these was a right, and the other a duty. The fundamental right was personal
security, or survival. The fundamental duty was the due performance of
agreements.
In itself, seeing the right of survival, or security, as a primary natural-law

right was nothing new. Aquinas had said as much. The key difference was
that, for Aquinas, self-preservation had been only one of three core natural-
law principles (the other two being the nurturing of the young and, cru-
cially, the quest for harmonious social life). For Hobbes, security was, in ef-
fect, the sole basic natural right. It authorized each individual person to take
whatever steps are necessary to preserve his existence in a turbulent world.
At the root of the Hobbesian “war of all against all” is the regrettable fact
that opinions of people will differ as to how far they are entitled to go in ex-
ercising this right, with the melancholy result that the various individual
rights of survival will clash with one another.
Hobbes was, however, able to offer a means of escape from this living hell.
This was by harnessing the one and only fundamental duty of natural law:
the obligation to adhere to contracts that are freely entered into. Pacta sunt
servanda was the standard Latin formulation of this principle: “Pacts must
be observed.” The state of nature may have provided nothing that could be
said to resemble an ordered human society, but it was within the power of
humans to create such a society for themselves, by means of contracts. The
way that this could come about, Hobbes posited, was for various individuals
to enter into a contract with one another, pursuant to which they would all
cede or transfer their natural-law right of self-rule to some third party—
who would thereby become the sovereign of a politically ordered society.
This sovereign would then have the task of providing for the collective sur-
vival of the contractors by making use of the pool of rights that they had
conferred onto him.
The implications of Hobbes’s ideas for international law were many. One
of them—and the one that has attracted the most attention—is that the po-
litical sovereignty created by this process was effectively absolute (or, at a
minimum, very nearly so). Th is was because the contracting parties have
given up the overwhelming share of their natural-law rights to the sovereign
in exchange for protection. But the present interest is in the implications of
Hobbes’s theory for international law. These were two.
The first was it now became possible to think, more clearly than before, of
a state as an entity that was quite distinct from its members—and, more
importantly, as an entity with rights, duties, and interests of its own, which
are different from, and superior to, those of its members. “A city,” declared
Hobbes, “is one person, whose will, by the compact of many men, is to be
received for the will of them all.” Where the Aristotelian city-state and the
Italian communes had been seen as associations between citizens, the
Hobbesian state was regarded as a sovereign above its subjects, and distinct
from them. For this reason, it was Hobbes, far more than Bodin, who acted
as the herald angel of modern conceptions of state sovereignty.
It is immediately apparent that this gathering of individuals into man-
made states does not actually solve the primeval problem of security. In-
stead, it merely ratchets it upward (so to speak), onto a collective level. In
place of individuals struggling against one another in a mutual state of na-
ture, we now have collectivities (states) locked in that same struggle.
This brings us to the second major implication for international law of the
Hobbesian system. That is, that the sole legal tie between states is provided
by natural law. Here, it must be remembered that the Hobbesian state of
nature—in which the states of the world lived vis-à-vis one another—was far
from harmonious. Its core feature was conflict. Strictly speaking, despite the
use of some memorably lurid language, Hobbes did not really see humans as
relentlessly bloodthirsty monsters. His state of nature was slightly more ab-
stract than that. It was a condition in which the basic rights of persons (i.e., of
states) overlap worryingly, without any means for drawing a sharp line to de-
termine where one party’s right of survival begins and another’s ends. Draw-
ing such sharp lines is the function of a sovereign—but the international
arena possesses no sovereign. Consequently, there is an omnipresent potential
for conflict, even when actual material warfare is absent. It was this omni-
present potential that Hobbes regarded as a state of continuous war.
In principle, there would seem to be no reason that Hobbes’s contractual
solution could not be applied at the collective level of state-to-state relations
as well as to the individual level. On this view, smaller states would band to-
gether into larger ones, and then larger ones into yet larger ones until, eventu-
ally, the whole world was comprised in a single sovereign state. Hobbes did
not, however, envisage that this would occur. It was still possible, though, for
at least a semblance of international order to be brought about by deft employ-
ment of the basic natural-law duty to adhere to contracts. States could enter
into treaties with one another—treaties that they would then be under a
natural-law duty to fulfill. In this vision, international order (of a sort)
emerges from below, through the mechanism of treaty making, rather than
from above, either from the precepts of a rich body of natural law or (as the
case may be) from the commands of a global sovereign.
On the whole, it is fair to say that the Hobbesian vision of international
order was indelibly marked by two crucial features. First, it was a world that
was intrinsically conflictual rather than harmonious. Peaceful and orderly
relations between states were not impossible, but they had to be painstak-
ingly and consciously constructed by purely human initiative, from below.
There might be islands of order, but they are protrusions from an ambient
ocean of conflict, whether actual or potential. The second crucial feature of
the Hobbesian international world was that any orderliness must be entirely
treaty-based (although treaties did not necessarily have to be in the form of
written documents, with fancy lead seals). There was no detailed body of
substantive natural-law principles to guide the statesmen of the world.
The “Grotians” versus the “Naturalists”
In the century or so after Grotius and Hobbes, the followers of the two
formed rival schools in international law. The followers of Hobbes were
known, somewhat confusingly, as the “naturalists.” Their signature doctrine
was the belief that natural law is the sole body of law that is binding between
states. Their opponents should most logically be labeled “dualists,” since
their defining belief was in the existence of two distinct bodies of law be-
tween states: natural law, and voluntary law or the ius gentium (depending
on the preferred choice of label). The historical process, however, is often
weak on logic, with the result that this second school of writers have been
more commonly known as “Grotians” or alternatively as “eclectics.”
The Grotians
The Grotian, or dualist, school followed their eponymous forebear in hold-
ing international law to be a confederation between the two distinct bodies
of law: the law of nature and the law of nations (i.e., the voluntary law of na-
tions). The law of nature was not created, but found—or rather, deduced
from first principles. Its content was determined by the nature of the uni-
verse, and man’s ability to discern it was given by reason. It contained no
element of free will. The law of nations, in contrast, was a man-made arti-
fice, a product of human initiative and free will, with its contents deter-
mined by circumstances and context as perceived by the humans who
crafted it. The law of nature was binding on all states in the world, without
exception. The law of nations bound only those who had participated in its
creation or who had consented to observe it.
An early figure in the dualist or Grotian tradition was the English judge
and legal scholar Richard Zouche (or Zachaeus, to Latin devotees), who
was a younger contemporary of Grotius. Zouche became the holder of
Gentili’s old professorship of civil law at Oxford in 1620, and also a mem-
ber of the British Parliament, as well as an admiralty judge. His major work
was entitled An Exposition of Fecial Law and Procedure, or of Law between
Nations, and Questions Concerning the Same, published in 1650. (By “fecial
law” was meant the fetial law of ancient Rome dealing with declarations of
war.) He also wrote on diplomatic immunity and on admiralty and eccle-
siastical law.
One of Zouche’s contributions to international law was the invention of
an early version of what became the modern name for the subject (albeit in
the Latin tongue). In place of the received expression “ius gentium,” he sug-
gested substituting “ius inter gentes.” That is, he favored speaking of a “law
between nations” instead of a “law of nations.” The reason behind this pro-
posed change was to make it clear that the law governing relations between
states was importantly different from the original Roman-law ius gentium,
which Zouche correctly explained to be merely “the common element in the
law” in transactions between individuals. This newly minted expression
marks the arrival—if only in Latin—of the term “international law.” It
would be rendered into English in the late eighteenth century.
In his treatment of this ius inter gentes, Zouche followed Grotius’s dualis-
tic lead. Part of the law between nations comprises natural law, which con-
sists of conclusions “proceeding from the first principles of nature.” The law
of nations, in contrast, is a human construction, arising out of agreement. It
is of two kinds. One is a body of law of universal application, arising out of
“general agreement” between states. The other comprises particular agree-
ments between specific states (most obviously in the form of treaties).
The impact of Grotius was similarly evident in the writing of the German
scholar Samuel Rachel. The son of a Lutheran minister, Rachel served as a
diplomat and state counselor and also held a professorship in the law of na-
ture and nations at the University of Kiel in 1665—only the second such
academic chair to be created (the first one, as noted later, had been estab-
lished a few years earlier at Heidelberg). His principal work, Dissertations on
the Law of Nature and of Nations, was published in 1676. Rachel was em-
phatic about the distinction between the law of nature and the law of na-
tions. The two differ, he maintained, “by the whole heaven.” He expressly
lauded Grotius as the first to perceive the distinction (being apparently ig-
norant of Suárez’s priority). Sometimes, he pointed out, a rule of the law of
nations, such as a treaty obligation, will simply reiterate or confirm a rule of
natural law. Even then, though, it must be appreciated that two distinct
kinds of legal obligation exist—one under natural law and the other under
“the voluntary consent of nations.”
The human-created law of nations was needed, Rachel explained, to deal
with a key shortcoming of the natural law: its failure to provide solutions for
“the greater part of the businesses which free Nations enter on with one an-
other.” To fill that gap, the states themselves, “by their own discretion,” cre-
ated the voluntary law of nations. This law was defined by Rachel as “a law
developed by the consent or agreement, either expressly or tacitly given, of
many free nations, whereby for the sake of utility they are mutually bound
to one another.” As such, it was, in his words, “a species of Arbitrary
Law.” Subjects dealt with by this branch of law included (as they did for
Grotius) diplomatic relations and the conduct of war. In one interesting re-
spect, Rachel was a precursor of modern international law: he recommended
the establishment of an international tribunal for the settlement of disputes
between states.
Like Suárez and Grotius, Rachel held natural law to be more fundamental
than the voluntary law. For it was only through the force of natural law that
the voluntary law could be held to be binding. Most particularly, the legally
binding character of treaties was crucially dependent on the natural-law
principle of pacta sunt servanda. Natural law was therefore, in Rachel’s
words, the “remote cause” of a treaty obligation, with the treaty itself then
being the proximate cause of the specific obligations spelled out in it.
Rachel explicitly turned his attention, as Grotius had not, to the question
of whether this body of law ought more properly to be described as private
or public. This depended, he concluded, on whether one was concerned with
the content of the law or with the method of its creation. In terms of content
or “the effect . . . actually produced” by the law, it could be called public be-
cause it dealt with “the public affairs” of the nations of the world. Consid-
ered from the standpoint of how the law was made, however, it is best re-
garded as private, since it is the same process, in essence, by which private
individuals enter into agreements with one another—and thereby create le-
gal rights and duties by their own initiative—in their ordinary affairs.
A variant form of the Grotian dualistic position was presented by the Ger-
man writer Johann Wolfgang Weber—or Textor as he is more commonly
known, from the Latin translation of his surname (“weaver”). He was from
a distinguished family in the small German state of Neuenstein, where he
served as director of the Chancellery. In 1666–90, he taught law, first as pro-
fessor of Roman law at the University of Altdorf, and then as professor of
general jurisprudence at the University of Heidelberg (the first person to hold
that post). He then served as an elected official in Frankfurt until his death.
He wrote on many subjects, but his principal contribution to international
law was his Synopsis of the Law of Nations, published in 1680 during his pe-
riod at Heidelberg.
Textor followed Grotius in distinguishing natural law from the law of na-
tions. Natural law “issues direct from Natural Reason,” while the law of na-
tions “issues through the medium of international usage.” The law of na-
tions, he asserted, is “strictly Customary.” As such, it is changeable. Textor
also followed Grotius in carefully insisting that this body of law is not based
on bare usage alone, that is, on a pattern of unilateral acts by states. It is
necessary, in addition, that the practice or usage of states be founded upon
“a mutually obligatory consent.”
The Naturalists
In conscious contrast to the Grotians were the naturalists. The essence of
the naturalist position was that the law of nature is the only general law gov-
erning relations between sovereign states. This core tenet was succinctly
stated by Hobbes:
As for the law of nations, it is the same [as] the law of nature. For that
which is the law of nature between man and man, before the constitu-
tion of the commonwealth, is the law of nations between sovereign and
sovereign, after.
Two notes of caution about the naturalist school are necessary at the outset.
The first is that the naturalists did not actually hold natural law to be the
only law between states. What they held was that natural law was the only
law of general or universal application between states. They accepted that
natural law could be supplemented by side arrangements between pairs or
groups of states on an ad hoc basis. But treaties were generally seen by natu-
ralist writers as being relatively unimportant in the grand scheme of things.
The second cautionary note about the naturalists is that, while they all
shared (by definition) the core belief that natural law is the only general body
of law between states, there was considerable room for variation as to what the
nature and content of natural law actually was. And many of the naturalist
writers—in fact, all of the best-known ones—did not share Hobbes’s ruth-
lessly stripped-down, asocial view of natural law. They largely adhered instead
to the more conventional tradition of natural law—most notably, accepting
the venerable Aristotelian thesis of the natural sociability of humans.
An example of a naturalist writer who did share Hobbes’s own opinions
about natural law was the Dutch philosopher Baruch (or Benedict) Spinoza.
Spinoza was the very archetype of writers in the rationalist tradition of nat-
ural law. Where some writers, such as Grotius, had advanced mathematical
reasoning as their ideal, Spinoza came the closest of all to achieving it. His
famous treatise on Ethics (published posthumously in 1677) was written in a
severely geometrical style worthy of Euclid.
Spinoza was not a lawyer, but he turned his attention to political philoso-
phy in A Treatise on Religion and Politics (1670), followed by A Treatise on
Politics, published posthumously in 1677. These writings were in a strongly
Hobbesian vein. He followed Hobbes in holding that only natural law gov-
erned relations between states. “[S]ince . . . the right of the sovereign is
simply the right of nature itself,” asserted Spinoza, “two states are in the
same relation to one another as two men in the condition of nature.” He
flatly pronounced states to be “enemies by nature.” If anything, he was
even more radical than Hobbes in that he denied the existence of an absolute
duty to observe treaties. Once the motive for concluding an agreement
disappears—that is, once there ceases to be any advantage in adhering to a
treaty—a state has a “full right,” he maintained, to break it. The reason is
that a ruler owes a higher duty to his own subjects to protect their “safety and
advantage” than he does to fellow sovereigns to adhere to agreements.
Spinoza, however, was exceptional in his agreement with Hobbes’s rejec-

tion of natural sociability. Nor were his writings influential on later writers
on international law. The true leading figure in the naturalist tradition was
neither Hobbes nor Spinoza but the German historian and lawyer Samuel
Pufendorf. He was from Saxony and, like his contemporary Rachel, was
the son of a Lutheran minister. Initially destined for the ministry himself,
he studied theology at the University of Leipzig but soon abandoned it for
law. He read widely, including the works of both Grotius and Hobbes. His
first major employment was in Copenhagen as a tutor to the family of the
Swedish ambassador. Difficult political relations between Sweden and Den-
mark led to his being imprisoned for some eight months (with the rest of the
ambassadorial staff )—and thereby provided with valuable time for intellec-
tual meditation. It was time well spent, its fruit being a natural-law treatise,
Elements of Universal Jurisprudence, published in 1660. This led to his being
appointed by the book’s dedicatee, Karl Ludwig (the Elector of the Rhenish
Palatinate), to a professorship of international law at the University of Hei-
delberg in that same year—said to be the first such academic chair to be
created. Interestingly, the post was in the faculty of philosophy rather than
of law. The formal title of the professorship—of the “Law of nature and
nations”—was somewhat ironic, with its clear echo of the Grotian dualistic
thesis. Pufendorf’s tenure in Heidelberg, however, was not long. He went on
to hold a similarly designated chair at the University of Lund in Sweden in
1670–77. It was during that period (in 1672) that he published his principal
work, The Law of Nature and Nations—one of history’s foremost master-
pieces of natural law. Five years later, he went on to become historiographer
royal for the Swedish government.
Pufendorf revealed his allegiance to the naturalist school in his
insistence—notwithstanding the title of his book—that there was no such
thing as “a peculiar and positive law of nations, distinct from natural law.”
The old Roman-law conception of ius gentium, he explained correctly, was not
a law between states—that is, was not truly international law at all—but
merely a civil law between individuals. Nor, in his opinion, could the cus-
tomary practices of states have the effect of creating rules of law. Therefore, an
analysis of state practice could reveal nothing meaningful about international
law. “[T]hey are assuredly wasting their efforts who collect what the nations
in common with one another habitually practice,” he pronounced.
Thoroughly in the naturalist spirit, Pufendorf insisted strongly on the

absolute independence of states from one another. This arose directly, he
explained, out of the basic principle of “the natural equality of men.” No
sovereign had any right to lay down rules for any another sovereign. The
result, in his opinion, is that each state can undertake whatever “acts . . . it
has judged to be expedient to its own end.” We should be careful not to
read too much into this contention and, in particular, to appreciate that
Pufendorf was emphasizing the mutual independence of states from one
another. He did not contend that states were bound by no laws at all, but
merely that natural law was the sole source of any such constraint, and not
obligations owed to other states. Pufendorf should therefore be understood
to be expounding what would now be called a duty of nonintervention on
the part of states, rather than a doctrinaire theory of absolute state sover-
eignty in the manner of the nineteenth-century positivists.
The writing of Pufendorf aptly illustrates the marginal significance at-
tached by the naturalists to treaties. He compared them to contracts in civil
law. Just as contracts are private obligations between citizens without being
part of the general law of the state itself, so are individual treaties merely
private arrangements between states, and hence not component parts of a
general law of nations. Some treaties, he conceded, replicated provisions of
natural law and, on that basis, could perhaps be said to be something more
than mere private arrangements. But he had an especially low opinion of
treaties of this sort, on the ground that they risked detracting from natural
law. “[C]ivilized men,” he grumbled, “should almost be ashamed to be a
party to a pact the articles of which say no more than they may not clearly
and directly violate the law of nature, as if without such a pact a man would
not be sufficiently mindful of his duty.”
Even less value was accorded by Pufendorf to customary practices of
states as a possible source of law. He held, for example, that the various prac-
tices devised by states to mitigate the harshness of war do not actually have
the force of law. The true position, he contended, is that any act that is per-
mitted in warfare by natural law is, ipso facto, lawful, even if a general prac-
tice has grown up of refraining from certain practices. The commission of
the act is therefore not a breach of a binding obligation—although, he con-
ceded, it might give rise to an accusation of barbarism. “[A]ny one can free
himself from . . . obligations [that] rest only upon a tacit agreement,” he
maintained, “if he expressly declares that he is not willing to be bound by

them, and that he will not complain should others also not observe them
towards him.”
A prominent follower of Pufendorf in the next generation was a German
scholar and office-holder named Samuel Cocceji. Natural law ran strongly
in his family, as his father held professorships in the subject at the Universi-
ties of Heidelberg and Frankfurt-upon-Oder, where the son undertook his
studies (and later taught). Cocceji held a number of governmental posts in
the state of Prussia, including a judgeship on the Supreme Court of Berlin,
and also undertook diplomatic missions. He became renowned for ser vices
in the area of judicial reform, first in East Prussia and later in Silesia (newly
acquired by Prussia in 1740 as a result of a memorable act of aggression
against Austria), and also served as minister of war and of justice. In the
course of this busy life, he somehow found time to pen a major treatise,
Elementa jurispurdentiae naturalis et romanae (Elements of Natural and
Roman Jurisprudence), which was published in 1740. It contained harsh
criticisms of Grotius’s notion of voluntary law, which was condemned as a
“monstrous idea.” There could not be such a law—or at least not a univer-
sal law—contended Cocceji, because it was simply not possible for the entire
world to arrive at the necessary agreement.
The most influential figure in the naturalist tradition in the eighteenth
century was the Swiss writer Jean-Jacques Burlamaqui. Hailing from a prom-
inent and politically active Genevan family, he served as a professor of natu-
ral law at the Academy of Geneva, attracting students from various parts of
Europe. His Principles of Natural and Politic Law (1747) drew heavily on
Pufendorf’s work, but was more widely disseminated. It was published in
some sixty editions in seven languages, serving as a standard textbook at
Cambridge University in England, as well as at various American colleges.
Following Pufendorf, he pronounced the law of nations to be “nothing, but
the law of nature itself, not applied to men considered simply as such; but to
nations, states, or their chiefs, in the relations they have together.” Like
Pufendorf, he expressly rejected Grotius’s claim of the existence of a second,
man-made law of nations.
Of like view was the English natural-law scholar Thomas Rutherforth, a
professor of divinity at Cambridge University. His Institutes of Natural Law
was published in two volumes in 1754–56. “[T]he law of nations,” he stated,
“is positive [i.e., man-made] only in the manner of applying it, and is natural
as to its subject matter: it is the law of nature applied by positive consent to
the artificial persons of civil societies.” A “constant and uninterrupted
practice” of states cannot become legally mandatory by its mere existence.
Only a command by a sovereign could make it so—and there is no sovereign
in international affairs.
The conceptual line between the Grotians and the naturalists was, in sum, of
the utmost sharpness—and was clearly perceived to be so by contemporaries.
But it was not actually the most important division among international law-
yers in the century and a half that followed Grotius. Rival approaches would
emerge within the Grotian camp that would prove, in the longer run, more
important for the evolution of international law.
chapter five
Of Spiders and Bees
rancis Bacon, the English lawyer, philosopher, and essayist, had a

F delightful way with words (even if he did not pen the plays of Shake-
speare). Writing in 1620, he illustrated three contrasting ways of approach-
ing intellectual challenges by invoking the rival methods of the spider, the
ant, and the bee. The spider represented speculative thought, in which a writer
spins out ideas from within his own mind, in the manner of a spider spinning
out silk from its own glands. The ant represented mere mechanical conduct,
the mindless piling up of facts without any theoretical guidance, like the ants
piling up food for the winter. In between—and much the best of the three—
was the way of the bee, which involved gathering in material from the
outside world, but then transforming it qualitatively into something more
useful.
This charming analogy is a surprisingly useful guide to international le-
gal thought in the centuries following Grotius. The spiders were the natural
lawyers of the rationalist tradition. International law, to them, was largely
an intellectual challenge, met by the hypothetico-deductive methods of the
mathematician, and with logical consistency as the principal goal. Writers
of this arachnid persuasion will here be labeled as rationalists. The bees were
lawyers who sought to base international law more on the actual practice of
states—more specifically, to use state practice, instead of basic axioms, as
the basis for their speculation on the content of the law. This group will be
here referred to as pragmatists. This distinction between rationalists and
pragmatists is the most useful categorization of lawyers in the eighteenth
century—more useful, as will be seen, than the division between the natu-
ralists and the Grotians, which seemed more obvious at the time.
It should be added that international law would also have its ants—those
who held international law to consist of state practice itself, unleavened by
speculation. But they would not achieve prominence until the nineteenth
century (under the more dignified label of positivists).
Rationalists and Pragmatists
It has been observed that international lawyers saw themselves, in the late
seventeenth and eighteenth centuries, as being divided into the two con-
tending schools of the Grotians and the naturalists. Between them, the di-
viding line was drawn with surgical precision. The one group held interna-
tional law to comprise a union between two bodies of law (natural law plus
the voluntary law of nations), while the other held it to consist only of one
(natural law alone). As clear as this distinction was, however, another divi-
sion was more important—though less apparent to the naked eye. It was less
apparent because there was no clear chasm separating the one group from
the other, but instead a continuum along which the writers on international
law ranged. For lack of any accepted label (as usual), this continuum will
simply be termed the international-law spectrum.
This spectrum is best described by taking note of its opposing end points.
These could be characterized in a couple of different ways. One is in terms
of rival strategies of order: a top-down strategy, contrasted with a bottom-
up one. A top-down strategy sees rules as being dictated from, as it were,
some “outside”—and superior—source. In the case of international law,
that outside source was not a global sovereign, but instead was the law of
nature. In the rationalist tradition of natural law, these rules are best seen
as being transcendental in nature, because they are based on logical con-
clusions objectively arrived at from initial axioms, in the hypothetico-
deductive style of mathematics. As in mathematics, there is no component
of human free will. Humans are welcome to comprehend the system, as
best their fallible sense of reason will allow. But they are not free to change
it. In this sense, then, a pure strategy of order from above may be de-
scribed as authoritarian—not in the sense that enforcement of it is oppres-
sive, but rather in the sense that there is an absence of human input into its
content.
Of Spiders and Bees 181
At the opposite end of the spectrum is the bottom-up, or emergent, strat-

egy of order. Here, rules are seen as products of human free will. The precise
kind of order could be highly variable, depending on prevailing political,
social, military, and economic conditions. Order might be imposed by a
single imperial power—though one should probably withhold the label “in-
ternational law” from such a system (such as the imperial Chinese one). Or it
might be arrived at by general consensus or, perhaps, in the style of a parlia-
ment, by a majority vote, or alternatively by multilateral treaty making. In
the present period, the strategy of order from below took two principal forms:
networks of bilateral treaties and the customary practices of states. So long
as there is widespread (or at least relatively widespread) participation in the
making of the rules, this strategy of world order could be described, broadly,
as participatory or democratic in character, in contrast to the authoritarian
nature of the top-down, or rationalist, strategy.
There is an alternate way of characterizing the contrast between these
extreme ends of the international-law spectrum. At the one end, the sole
governing law is the law of nature. At the other end, the sole governing law
is the law of nations (i.e., the voluntary law of nations), as evidenced by state
practice. Between the two extremes is a smooth continuum, with literally
every possible proportionate blending (or gradation) in between. In the lan-
guage of Baconian zoology (and oversimplifying a bit), we could say that the
natural-law extremity is the realm of the spiders, and the positive-law ex-
tremity the realm of the ants—with everything in between belonging to the
bees.
One final preliminary observation is in order regarding this international-
law spectrum: that floating over it, like a roving ghost, is the question of the
natural sociability of humankind. That critical proposition could be ac-
cepted or rejected at any and every point along the entire spectrum, but with
readily foreseeable consequences. Consider the extreme natural-law point,
for an illustration. There we find Hobbes, who rejected natural sociability,
but also Pufendorf, who accepted it. That made for a very large difference in
the content of natural law that they advocated, while still leaving both of
them in the naturalist camp.
Consider also the extreme voluntary-law point. Someone who accepted
the natural-sociability thesis would expect international society to be broadly
harmonious, with law emerging by some kind of consensus procedure and
(at least for the most part) voluntarily adhered to. A person who rejected
that thesis would have a very different worldview. He would expect it to be
extremely difficult (and perhaps even impossible) to make laws in the first
place, because agreement among the states would be hard to achieve. And
such a person would expect enforcement of laws to pose a serious problem,
too, since states would tend to breach rules whenever they saw their own
interests threatened.
The naturalist and Grotian schools can readily be placed along the
international-law spectrum. Take the naturalists first. They can be said sim-
ply (and by definition) to congregate at one extremity: the natural-law end.
The Grotians, in contrast, were spread across the entire spectrum, with the
sole exceptions of the two end points. All of the Grotians believed (here too,
by definition) in the existence of the two kinds of law, but with much room
left for variation in the proportion of each that went into the final product.
The natural-law ingredient might be very great, and the voluntary part very
small, or vice versa. Or the mix could be somewhere near even. Indeed, it
could even, in principle, be precisely half and half.
The dominance of natural law in this period is immediately evident from
the key fact that the extreme natural-law end point of the spectrum did have
its supporters (i.e., the naturalist school, by definition). The extreme voluntary-
law end point, however, was (for the present) largely or entirely vacant. That
would change, but not until well into the nineteenth century. For the pres-
ent, we will briefly survey the spectrum, looking first at the rationalist part,
then at the pragmatists, and then at a key figure (Emmerich de Vattel) who
was perched very near the center.
The Rationalists
The rationalists, it has been noted, were those whose position on the
international-law spectrum was in the region where greater weight was ac-
corded to natural law and lesser weight to state practice. Within this group
was the naturalist school. They were the purists, occupying the extreme end
point, that is, accepting only natural law as the general governing law be-
tween states and rejecting the voluntary law altogether. Foremost among
them, as noted earlier, was Pufendorf. His acceptance of the Aristotelian
thesis of natural sociability of humans enabled him to build up one of the
most impressive of the grand systems of natural law—including rules on

relations between states, but by no means limited to that.
Among the Grotians, some were in the far reaches of the rationalist end of
the international-law spectrum, even if they were not quite at the extreme
point of the naturalist school. Foremost among these was another German
writer, Christian Wolff, in the early and mid-eighteenth century. Although
little remembered in most circles today, he was the towering intellectual fig-
ure in the Germany of his era. He was from Breslau in Silesia (present-day
Wroclaw in Poland) and studied (like Pufendorf) at the University of Leipzig.
Appropriately for a leading figure of the rationalist persuasion, his original
field of study was mathematics, with his dissertation at Leipzig on the sub-
ject of the application of mathematical methods to ethics. He went on to a
professorship in mathematics at the University of Halle. Trouble came, how-
ever, as a result of his rectoral address in 1721, “On the Practical Philosophy
of the Chinese.” That might seem an innocuous enough topic. But Wolff ’s
assertion that sound moral reasoning did not require belief in God or reli-
ance on revelation earned him the hostility of conservative theologians. He
was no radical, being a defender of slavery and of torture in judicial pro-
ceedings. But in 1723, he was dismissed from his post and given forty-eight
hours to leave Prussia. He taught at the University of Marburg until allowed,
by Prussian King Frederick II, to return to Halle in 1740—to a hero’s wel-
come. He went on to become vice-chancellor of Halle and a baron of the Holy
Roman Empire, as well as the foremost intellectual of the German world.
Wolff was the very prince of pedants. As a mathematician, he brought the
study of the calculus into German university teaching. He became an im-
portant figure, too, in the history of psychology—and was even responsible
for bringing that word into general usage. He brought the hypothetico-
deductive mode of thought to bear on the subject of astronomy, too, with
intriguing results. Arguing from a fundamental principle of nihil frustra
(“nothing happens to no purpose”), he concluded that the moon, other
planets, and even comets were populated by plants, animals, and humans.
He even went so far as to calculate the bodily size of the inhabitants of Jupi-
ter. They must have larger eyes than their terrestrial counterparts, he wisely
surmised, given that the sunlight reaching them would be less intense. Let
it never be said that the patient application of reason does not broaden one’s
horizons.
It was in his final years at Halle that Wolff toiled on a great summa of
natural law that, in terms of bulk, left even Grotius and Pufendorf far be-
hind. If Gustavus Adolphus had taken Wolff instead of Grotius as his night-
time reading choice, he would have needed a very capacious bed. Published
in 1740–49, Wolff ’s exposition weighed in at nine very heft y volumes. Never
had an academic spider woven so marvelous a conceptual web. With his
excruciatingly thorough application of the hypothetico-deductive method,
Wolff could be called the last of the medieval scholastics. Indeed, he had
received a Catholic education in his youth (although he was a Lutheran by
faith) and had a strong sympathy for the grand unitary outlook of the Mid-
dle Ages. He candidly admitted a great intellectual debt to Aquinas.
The final volume of the grand masterpiece was devoted to the subject of
international law. This was published in 1749, with the apposite title of The
Law of Nations Treated According to a Scientific Method. Like Grotius, Wolff
resolutely excluded current events from consideration. Unlike Grotius,
though, he eschewed the humanist adornments of classical and biblical his-
tory in favor of a straightforward exposition and application of reason. His
work therefore has a directness that is all too lacking in Grotius.
Wolff was a Grotian, rather than a naturalist, in that he accepted the exis-
tence of a man-made law of nations in addition to the law of nature. This
allegiance to the dualistic tradition of Grotius is immediately evident from
the subtitle of the book: “In Which the Natural Law of Nations Is Carefully
Distinguished from That Which Is Voluntary, Stipulative and Customary.”
But if he was a Grotian, then he was one who perched very near to the ex-
treme naturalist end of the international-law spectrum.
Fundamental to Wolff ’s rationalistic system was the core principle of the
quest for “perfection” by states. This required rulers to work diligently to
develop the various capacities of their states to the greatest extent possible.
This duty that states owed to themselves was primary. After that, and sec-
ondarily, came duties owed to other states.
Although the subtitle of Wolff ’s opus identified four kinds of law, he read-
ily acknowledged the fundamental Grotian distinction between natural law
and man-made law. Natural law was what Wolff called the “necessary law of
nations.” More strictly, it was the subportion of natural law that was appli-
cable to the specific subject of interstate relations. It was “necessary” in a
logical sense, in that it was deducible from the axioms of natural law in the
manner of a geometric demonstration. Wolff also maintained, though

somewhat vaguely, that the rules of natural law, when applied to the special-
ist field of interstate relations, underwent a modification and took on “a
certain new form.”
The part of law that arose from human free will comprised two of Wolff ’s
categories of law: stipulative and customary. This was the law made from
below, by the free consent of the states themselves, for their own perceived
benefit. This consent took either of two forms: express consent in the case of
the stipulative law (i.e., treaty law) and tacit consent in the case of the cus-
tomary law. Treaty law and customary law were therefore seen by Wolff as
being, so to speak, two sides of the same man-made coin. Both were con-
tractual in character, meaning that they are binding only on parties to the
arrangement in question. Consequently, they do not qualify as universal in-
ternational law, as the necessary law of nations does. Wolff had little regard
for these two types of law. Like Pufendorf, he held them to be, strictly speak-
ing, not part of the general law of nations at all, any more than private con-
tracts are part of the civil law of states. Their study therefore belongs to “the
history of this or that nation” rather than to the general “science of the law
of nations.” Moreover, if a treaty or customary arrangement were found to
be contrary to natural law, then it would thereby cease to be legally binding,
even on the parties to it.
The fourth and final type of law identified by Wolff—to which he gave the
woefully unfortunate label of “voluntary” law—was a sort of hybrid between
natural law and positive (or man-made) law. Strictly speaking, it was man-
made. But it was not a product of the free will of humans, as treaty law and
customary law were. Instead, it arose from what Wolff called the “presumed”
consent of nations. Th is “presumed” consent, however, must be under-
stood to be the conclusively presumed consent of all nations, without excep-
tion. In other words, states had no choice but to accept and observe this
“voluntary” law.
The Wolffian voluntary law was a sort of manservant to natural law. It
amounted, in effect, to a resuscitation of the medieval substitution theory of
the ius gentium—a key indicator of Wolff ’s scholastic temperament. Natu-
ral law was stated to be “a fi xed and immovable foundation” of the voluntary
law. The task of the voluntary law was to implement or apply natural law to
the practical circumstances of everyday international relations. The only
reason that the voluntary law is needed at all, Wolff stated, is because of “the
perverse customs of nations.” Here, the echo of the medieval substitution
theory is palpable. The voluntary law was seen as essentially a compromised
form of natural law—with the compromises made necessary by the many
imperfections of human life. Ideally, natural law would simply be applied in
its pure form to the relations between states. Enlightened nations will there-
fore make use of the voluntary law “only unwillingly,” when circumstances
do not permit the application of the necessary law.
The voluntary law, it is true, was not seen as fi xed or immutable in the
manner of natural law (i.e., of the necessary law of nations). It changes ac-
cording to prevailing earthly circumstances and consequently is man-made
in the immediate sense. But the principles that guide it—those of natural
law—are fi xed and immutable. So closely connected, in fact, was this volun-
tary law to the necessary law of nations that Wolff readily conceded that he
had no great quarrel with persons who regarded them as substantially the
same.
Wolff ’s voluntary law, then, had the interesting properties of being both
man-made in its immediate origin and universal in its application. This
made for a somewhat awkward mix. Judging from the man-made element, it
would appear that the voluntary law ought to be—as its very name implies—
contractual in character, as it was for Suárez and Grotius. But no. It was not
open to free negotiation and horse trading in the manner of a contract or a
treaty. It was too closely harnessed to natural law to allow for that. So the
voluntary law was not really contractual in nature in any significant sense.
But nor was it quite like natural law, since it was man-made (at least in proxi-
mate terms) and alterable over time. It was therefore a sort of conceptual
amphibian—placed neatly between man-made customary law on the one
hand and natural law on the other, while being distinct from both.
In his discussion, Wolff gave a second—and instructively different—
explanation of the voluntary law. This was in terms of what he called a “su-
preme state” (civitas maxima), which was a kind of great global republic
whose “citizens” were the various nations. This amounted to a direct applica-
tion to states of the Aristotelian concept of natural sociability. “Nature her-
self,” in Wolff ’s words, “has united all nations into a supreme state” for the
same purposes for which individuals had originally formed states: for security
and mutual protection. This supreme state is formed by “quasi-agreement”
of the individual states that comprise it. States that do not wish to belong
to it are to be regarded as immature members of global society who, in
the manner of children, fail to see where their own interests lie. Conse-
quently, they can be compelled, like children, to do what is in their true
best interest—to join the world state. The voluntary law of nations, Wolff
went on to explain, may be thought of as the civil law, or legislation, of this
supreme state. As such, the voluntary law must be regarded as very dis-
tinctly legislative in character, and not contractual—meaning that all states
were bound by it, without exception.
Far from being under the rulership of an emperor or pope, the supreme
state was seen to be firmly republican. All of the members were equal in le-
gal status (though not, of course, in material strength), so that the supreme
state was “a kind of democratic form of government,” at least in principle.
Here we find expressed, for the first time, a theme that would later become
one of the cornerstones of international legal doctrine: the complete legal
equality of all states, without regard to material disparities in such areas as
wealth or power. This idea of the legal parity of states was, however, con-
ceded by Wolff to be more a matter of abstract principle than of reality. In
practice, the supreme state is hegemonic. Since it is impractical for all of the
states to send representatives to gather in one place, the realistic alternative
is that “what has been approved by the more civilized nations” must deter-
mine what becomes the law for the whole world.
In terms of the function that it served, Wolff ’s voluntary law was largely
on a par with that of Grotius. Its effect was to relax some of the strictness of
the necessary law by declining to inflict punishments for certain violations of
it. As in Grotius’s theory, this immunity from punishments does not amount
to an affirmative grant of true rights. “On account of the human factor,” as
Wolff explained, “things which are illicit in themselves have to be, not indeed
allowed, but endured, because they cannot be changed by human power.”
As an example, he gave the law on resort to war. According to the necessary
law, wars can be just on one side only. The voluntary law, in contrast, al-
lows wars to be treated as just on both sides, so that both parties have an
equal entitlement to the rights of war.
The principal successor to Wolff in the rationalist tradition was the writer
who supplanted him as Germany’s best-known philosopher: Immanuel Kant.
Kant lived all his life in town of Königsberg in East Prussia, though his
thoughts ranged much further. They extended, like those of Wolff, to outer
space, but in this case more accurately. (He was an early advocate of the
nebular theory of the formation of the solar system.) Also like Wolff—with
whose writings he was thoroughly familiar—Kant was not a lawyer. He is
known today primarily for his writings on metaphysics, philosophy of sci-
ence, ethics, and aesthetics. But international relations was one of the many
other topics to which his fertile and penetrating mind turned. His principal
writing on the subject was a short work called Perpetual Peace, written in
1795, which included a statement of basic principles on which to base peace-
ful relations between states.
Kant, in contrast to Wolff, had considerable doubts about the principle of
the innate sociability of humans—and especially about the sociability of
those humans who were in charge of national governments. “Nowhere does
human nature appear less admirable,” he grumbled, “than in the relation-
ships which exist between peoples.” He was a pessimist regarding interna-
tional affairs, seeing relations between states as inherently conflictual. “[T]
he state of nature,” he bemoaned in the spirit of Hobbes and Spinoza, “is . . .
a state of war.” Nor had he any high opinion of the impact of international-
law writers on the practice of states. “[T]here is no instance,” he lamented,
“of a state ever having been moved to desist from its purpose by the testimo-
nies of such notable men” as Grotius, Pufendorf, and Vattel.
As a consequence, the problem of international order, in Kant’s view, is
reduced to the problem of how to reconcile the inevitably competing inter-
ests and claims of states. To deal with this challenge, Kant posited the exis-
tence of something that he called “international right”—a concept that (he
explained) “implies by definition that there is a general will which publicly
assigns to each individual that which is his due.” This must arise out of what
he vaguely called “some sort of contract.” The application of this transna-
tional general will, he surmised, results in “a state of permanent and free
association,” in the manner of a federation of states.
This federation was envisaged as a somewhat looser arrangement than
Wolff ’s supreme state. It was seen as an association of independent states,
broadly on the model of the post-Westphalian Holy Roman Empire. (Part of
Kant’s native Prussia—though not the part that he lived in—was still, at the
time of writing, a member of that empire.) “The idea of international right,”
Kant opined, “presupposes the separate existence of many independent ad-
joining states.” He was explicitly opposed to the idea of a world govern-

ment, or “universal monarchy,” which he feared would degenerate into “a
soulless despotism.”
In place of the commands of a global monarch—or of Wolff ’s basic norm
of the quest for perfection—Kant proposed that his world federation would
be ruled by what he called, rather grandly, “the transcendental formula of
public right.” This was the axiom that “[a]ll actions affecting the rights of
other human beings are wrong if their maxim is not compatible with being
made public.” In other words, no individual state’s system of rules could
make any claim for its holder that the holder was not willing to concede to
its fellow actors. The essence of the idea, in short, was reciprocity (substan-
tially in the spirit of Kant’s better-known categorical imperative in general
moral philosophy). In the best rationalist fashion, this single norm was seen
as the cornerstone of international law.
Peace was to be maintained, Kant proposed, by means of what he called
“an equilibrium of forces and a most vigorous rivalry” between these inde-
pendent states. This “equilibrium” and “rivalry” must not, however, be seen
in terms of power but rather in terms of right. What was envisaged was a sys-
tem in which the freedom of action of each actor would be retained to the
greatest extent compatible with the rights and interests of fellow actors. In
other words, there was to be a maximization of freedom of action in the
aggregate.
It cannot be said that Kant’s ideas had any great impact in their time. But
some of them would appear in future international legal thought, although
applied in a very different spirit. Most outstandingly, his idea of law as a
mechanism for maximizing freedom of action—within a certain overall ethi-
cal framework—would have a great impact in the following century and would
continue to the present time.
Pragmatists—Tools of the Trade

In the course of the eighteenth century, the pragmatists may be said to have
gradually gained the upper hand over the rationalists. A variety of factors
were at work in this process. For one thing, the pragmatic writing tended to
be more useful to men of affairs, even if it involved compromising the purity
of the law of nature. Rationalists were more inclined to see themselves as
critics of politicians rather than as loyal assistants. The more unswervingly

one adopted reason as a guide, the more one could find to criticize.
Another factor in the rise of the pragmatists—and a crucial one—was a
greater availability of material on which to work, that is, greater access to
evidence and information about what state practice actually was. Access to
two kinds of information was especially necessary. One was treaty texts. The
other was administrative and judicial rulings of states that were relevant to
international relations (such as regulations about maritime traffic in coastal
waters or instructions to armed forces on the conduct of war).
Systematic study of the treaty practices of states began to become possible
only at the end of the seventeenth century. A pioneering figure in this pro-
cess was a French Benedictine monk named Jean Mabillon. His De re diplo-
matica (1681) founded the science of diplomatics, which is the study of the
authenticity of documents. Another important early figure in this area was
the German polymath Gottfried Wilhelm Leibniz. Among his many roles—
philosopher, mathematician, psychologist—was historian. His Codes Iuris
Gentium Diplomatici (1693) was one of the earliest compilations of treaty
texts. “Collections of treaties of alliance, of peace, of concessions,” asserted
Leibniz, “are . . . the elements which underpin and support the whole edifice
of history.” The immediate purpose behind his project was to provide sup-
port for legal claims by the Holy Roman Empire against France. But he ex-
pressed the hope that the chief value of these labors, in the longer term,
would be to further the understanding of the law of nations.
Other similar efforts appeared at this time. In fact, in 1693, the very same
year that Leibniz’s collection was published, a collection of French treaties
was assembled by Frédéric Léonard, covering treaties from 1435 onward.
In 1700, in Amsterdam, a four-volume collection of treaties and other public
acts by European states, from the dawn of the Christian era, was pub-
lished. In England, a massive collection of primary source documents,
known as Rymer’s Foedera, began to appear in 1704, inspired by the work of
Leibniz—and even credited generously by Leibniz as being superior to his
own effort. It remains an invaluable tool for historians. So does the work of
Jean Dumont, a French soldier and publisher who settled in the Netherlands
and eventually became official historiographer to the Holy Roman Empire.
His massive Corps universel diplomatique du droit des gens began to be pub-
lished in Amsterdam in 1726, and remains a valuable scholarly resource to
the present day. In 1791, the German scholar Georg Friedrich von Martens
began publishing a collection of treaties starting from the year 1761.
These were not exercises in antiquarianism for its own sake. They could
be useful to rulers who were interested in bolstering legal claims of various
kinds—and even forming the necessary just cause for a resort to war. Given
the frequency of wars in Europe in the period 1650–1815, the hunt for just
causes—or at least plausibly just causes—could keep practicing lawyers
busy. This is a subject area that has yet to be explored in any detail. But it
may be noted that, in 1719, a French compiler named Père Lelong published
a collection of French historical documents, the principal purpose of which
was to support French expansionist policies by exhuming the original evi-
dence for sundry claims to neighboring territories over the centuries.
Another potentially rich source of information for the pragmatists, along-
side treaties, was judicial decisions. There were no international tribunals in
this period, but national courts sometimes had occasion to apply interna-
tional law—and by comparing the judgments of courts of different states, an
idea of the content of that law could be gleaned. Most noteworthy in this
respect were prize courts, which adjudicated the lawfulness of captures of
ships at sea during wartime. Established by each belligerent state on its own,
nevertheless these courts were charged with judging according to the inter-
national rules of maritime law, as they had evolved since the Middle Ages.
During the eighteenth century, prize court decisions gradually came to be
disseminated, although often in such extremely terse versions as to be of
limited practical use. Not until the French revolutionary wars would a sub-
stantial body of prize court judgments emerge.
The Early Pragmatist Writers

The earliest figure of importance in the line of pragmatist lawyers was
Zouche. While he subscribed to the Grotian distinction between the volun-
tary law and the natural law, he differed from Grotius in being interested
chiefly in the voluntary law. His book expounded a host of practical questions.
It was, in fact, a veritable encyclopedia of the topics that, in the aggregate,
were coming to define the study of international law: sovereignty, nationality,
various aspects of property rights (such as acquisition of title and determina-
tion of succession), diplomatic relations (including extensive discussions of
the ranking of diplomats, as well as questions of immunities), and war-related

issues of all kinds (including topics such as captures of property, treatment of
neutrals, the law of contraband, safe-conducts, issues concerning prisoners
and ransom, surrenders, and the terms of peace treaties). Zouche frequently
declined to take a position himself when the authorities or precedents were at
odds, as they often were. But for an identification of relevant practical issues
and an outline of the varying positions of commentators at the time, his work
is invaluable.
Another major writer in the pragmatist tradition was a Dutch admiralty
judge named Cornelius van Bynkershoek, who wrote in the early part of the
eighteenth century. Originally from Middelburg in the Netherlands, he
studied theology at the University of Franeker, in Friesland. He served as
president of the Council of Holland and also as a professor of law at the Uni-
versity of Leiden. For a time, he was editor of a satirical journal—an unusual
activity in a profession not renowned for a sense of humor. He wrote a short
work on freedom of the seas in 1702 and one on diplomatic law in 1721 but
is best known for a treatise on Questions of Public Law, published in 1737. It
was an unsystematic work, but it is of much interest in that it dealt with
many practical issues that were in lively dispute at the time. Bynkershoek
did not hesitate to make his own opinions known or to criticize acts and
decisions that he thought were wrong—although, in the interest of caution,
he withheld his own views when current or very recent controversies were in
question.
Bynkershoek had hardly any use for natural law, although he conceded to
Grotius and Pufendorf “the place of honor” in international legal writing.
His own concern was well nigh exclusively with the voluntary law of nations
instead. Practice, he pronounced “is the origin of the law of nations.”  For
“the testimony of ancient poets and orators,” he had no use. Instead, he pre-
ferred to consult the opinions of “those who have associated with men and
had experience in affairs of state, and have grown wise from practical ad-
ministration.” And he made it clear that he wanted his book to have “im-
mediate practical value.”
Reason was also important to Bynkershoek—more important, in fact,
than “the phraseology of treaties” as a means of discerning the law. But
reason, to Bynkershoek, meant sound thinking and robust common sense
in general, rather than systematic natural-law doctrine of the rationalist
sort. Moreover, reason could not be the sole basis of law because, as he wryly
observed, it “usually offers arguments on both sides” of issues. When that
occurred, as it frequently did, the matter at hand must then be resolved by
an “appeal to custom” and a search for “the consensus of opinion among
nations.” This entailed drawing on “usage long continued in the making of
treaties between nations, and upon widely established precedents.”
Bynkershoek was a modernist by temperament. He frankly accepted that
international law, if it was regarded as rooted in the customary practices of
states, could not be static. “[A]s the habits and customs of nations change,”
he pointed out, “so does the law of nations.” For this reason, recent prece-
dents are of more value than older ones, since they can be expected to reflect
the current practices of states more accurately. His outlook can fairly be de-
scribed as utilitarian, since he expressly proclaimed “very expediency” to be
“the mother . . . of justice and equity.”
Also writing in the pragmatist vein was Gabriel Bonnot, Abbé de Mably. He
was the elder brother of the philosopher Étienne Bonnot de Condillac. The
family came from the Grenoble area. Although he was in holy orders, Mably
did diplomatic work for the French foreign ministry in 1742–46. Armed with
this experience, he published, in 1748, a two-volume treatise on Le droit pub-
lic de l’Europe fondé sur les traités (The Public Law of Europe Based on
Treaties). As the title indicates, treaty practice was his principal source,
rather than principles of natural law. Also as indicated in the title, the sub-
ject was not international law in general, but instead something labeled the
“public law of Europe.” Th is differed from general international law in be-
ing hegemonic. Mably thought that any system of interstate order had to
rest on the dominance of a leading power. In ancient Greece, for example,
that role had been performed by Sparta, the most militarily powerful of the
Greek states. In contemporary Europe, Mably envisaged that Prussia would
take the lead.
Another writer—and indeed the supreme one—in the state-practice vein
was the German Johann Jakob Moser. A native of Stuttgart in the Duchy of
Württemberg, he studied at the University of Tübingen, where he proved
sufficiently impressive to be appointed professor of law at the age of nine-
teen. He went on to a number of administrative appointments in the ser vice
of the Holy Roman Empire—and also to become its foremost constitutional
authority. In terms of sheer bulk, he surpassed even Wolff in producing a
fift y-volume treatise on Deutsches Staatsrecht (German Constitutional Law)

in 1737–54. Involvement in political rivalry in Württemberg led to a five-
year imprisonment (in 1759– 64). After his release came a further twenty-
four volumes of Neues deutsches Staatsrecht (New German Constitutional
Law), published between 1766 and 1782. For all of that labor, the sobriquet of
“Father of German Constitutional Law” seems a modest, but apt, reward.
Amid this torrent of writings by Moser were occasional works on interna-
tional law. In an early essay, written in 1739, he proposed the existence of a
law of nations that was based on “the positive experience of norms custom-
ary among civilized peoples.” His most substantial contribution to the
subject was a characteristically massive work, in ten volumes, in 1777–80,
Versuch des neuesten europäischen Völker-rechts in Friedens- und Kriegs-
Zeiten (Essay on the New European International Law in Wartime and
Peacetime). Moser’s work represented the very apogee of the pragmatist
method. He expressly disclaimed any intention of writing what he called a
“philosophical” law of nations. International law was largely based, in his
view, on the practices of states rather than on fundamental principles of jus-
tice. His method was therefore an inductive rather than a deductive one, with
greater attention paid to custom than to treaties. Moser frankly denied the
existence of a general international law. What passes for that, he contended,
is actually a customary law devised by the leading European countries.
Moser’s stock would later stand high in at least some circles of interna-
tional law, as he came to be regarded as the founding father of the positivist
philosophy of international law. He hoped, however, that his work would
make a significant impact upon his contemporaries; but in this he was dis-
appointed. The distinction of writing the first international-law treatise to
reach a wide audience and influence practicing statesmen and judges fell
instead to an older contemporary: the Swiss writer Emmerich de Vattel.
Emmerich de Vattel
For an example of a figure poised at nearly the midpoint along the international-
law spectrum, the outstanding representative is Vattel. He was a native
of the canton of Neuchâtel, which was not then part of the Swiss federa-
tion but instead was under Prussian rule. His father was an ennobled Prot-
estant minister, and his maternal grandfather a counsel for Neuchâtel at
the Prussian court. Vattel obtained a degree in humanities and philosophy

at the University of Basle and then studied at the Academy of Geneva, where
he was a student of Burlamaqui. It was at this time that he discovered the
writings of Wolff, which became his principal intellectual guide. Being un-
successful in a quest for employment by the Prussian government, he en-
tered the ser vice of Saxony, which entailed a very brief diplomatic mission to
Berne (in 1747). He then returned to Neuchâtel, where he remained for the
next ten years. During this period, he wrote most of the work for which he is
known—most outstandingly The Law of Nations. The book was published in
French (not Latin) in 1757 in Neuchâtel, although the title page gave 1758 as
the date and London as the place.
The work was a great success, and deservedly so. It was, in fact, the very
first treatise of international law of the recognizably modern kind. Previous
expounders of the subject had written in Latin for scholarly audiences. Vat-
tel wrote in the vernacular and for Everyman. He gave a comprehensive over-
view of the subject, but in a straightforward and direct manner that was
readily accessible for lay readers. Every general international-law treatise
writer since that time has followed in the footsteps of the man from
Neuchâtel—but seldom with such verve and sparkle. The book’s charming
style ensured it a wide readership, and it rapidly became the handbook of
choice for statesmen and judges throughout Europe and in the New World
colonies as well. A translation into English quickly followed, in 1760. Such
fame did Vattel earn from the book that he was invited back to Saxony,
where he served on the privy council and as adviser on foreign affairs to the
Saxon government. He married into a Huguenot noble family, but ill health
claimed him in 1767, at age fift y-three.
Vattel’s allegiance, in principle, to the rationalist approach is evident in
his self-declared role as popularizer of the ideas of Wolff, whom he lauded as
the “great master” who went before him and showed him the way. Vattel
did, however, acknowledge his intellectual mentor’s treatise to be “a very dry
work” —an accusation that no one could level against his own text. Vattel
candidly declared a preference for a deductive rather than an inductive
method. He was, in short, a self-proclaimed spider. He also made it clear
that, like Grotius and Wolff before him, he was not prepared to accept the de
facto conduct of states as the measure of what the law required. The princi-
ples that he expounded, he candidly announced, “are going to appear very
different from the policy of cabinets.” And he was fully conscious that, “to
the disgrace of human nature,” many rulers would ridicule his work. But
he was determined to speak his (and Wolff ’s) mind nonetheless.
At the same time, though, there was a great deal of the bee in this self-
declared spider. Vattel, like Bynkershoek, wrote with the conscious inten-
tion of producing a work that would be useful. He expressly identified his
intended readership as sovereigns and their ministers, rather than scholars.
And he was even hopeful that his words would command some attention in
those circles, on the somewhat optimistic thesis that “justice is inseparable
from sound statesmanship.”  In many respects, his optimism proved well
founded. The book was much cited in court judgments over the following
generations. We have seen that it was consulted—or at least borrowed from
a library—by no less a figure than George Washington.
In his basic framework, Vattel followed Wolff closely. He echoed his pre-
decessor, for example, in holding that relations between states are governed
by a modified form of natural law—modified to take account of the special
interests of states. He adopted Wolff ’s twofold classification of the duties of
states—the state’s duty to itself, to strive for “perfection,” and its duty to
other states, of general sociability. Most notably, he straightforwardly ad-
opted Wolff ’s fourfold division of the law of nations (into the natural, volun-
tary, stipulative, and customary laws). Like Wolff, he held the voluntary law
to be a set of norms arising deductively from “the natural liberty of Nations,
from considerations of their common welfare, from the nature of their mu-
tual intercourse.” It was therefore an expression of the natural sociability
of states, in the spirit of Aristotle. Vattel followed Wolff, too, in insisting that
this law is not “voluntary” in the sense that adherence to it is optional. It is a
law based on consent—but with “consent” being required to be given (i.e.,
required, that is, by natural law).
[W]hat we call the voluntary Law of Nations [explained Vattel] consists

in the rules of conduct, of external law, to which the natural law obliges
Nations to consent; so that we rightly presume their consent, without
seeking any record of it; for even if they had not given their consent, the
Law of Nature supplies it, and gives it for them. Nations are not free in
this matter to consent or not; the Nation which would refuse to consent
would violate the common rights of all Nations.
This voluntary law was closely related to the natural law of nations in being
“derived from the same source and based upon the same principles.”
One advantage that the voluntary law had over the necessary law was in
being “of more certain and easy application.” The most important differ-
ence, though, was that the necessary law of nations was binding chiefly on
the consciences of sovereigns, whereas the voluntary law controlled their
external actions. This distinction went far toward relegating the whole of
natural law to the realm of morality, while leaving the voluntary law as the
unchallenged ruler in the sphere of strict legal relations.
Another of Wolff ’s ideas that was put into wide circulation by his emi-
nently readable follower was the principle of the legal equality of states. It
will be recalled that Pufendorf had been an earlier articulator of this the-
sis. But it was Vattel’s exposition that made the greatest impression on fu-
ture readers and writers. In asserting the legal equality of these moral per-
sons with one another, Vattel employed a winsome analogy in pointing out
that a “dwarf is as much a man as a giant is”—and that, by the same token,
“a small Republic is no less a sovereign State than the most powerful king-
dom.” A common later form of this viewpoint would be the pronounce-
ment that Russia and Geneva were equals in the eyes of international law,
notwithstanding the mammoth disparity in size and power between them.
Vattel has sometimes been understood—or rather misunderstood—as a
radical champion of state sovereignty. But here, as in the case of Pufendorf,
caution is called for. What Vattel was insisting on was the legal equality of
states with one another and the principle of nonintervention by states in the
affairs of one another. State sovereignty was not unlimited, so long as the
canopy of natural law overlay international affairs in general, which Vattel
clearly held to be so.
In one noteworthy respect, Vattel parted company with Wolff. He rejected
his predecessor’s idea of a global supreme state, dismissing it as a “fiction”
that was “neither reasonable nor well enough established” to serve as a source
of binding rules of law. In addition, and more importantly, Vattel made
some innovations of his own, most notably in the areas of war and neutrality.
Regarding neutrality, he provided the first explicit explanation for the right
of belligerents to infringe the freedoms of neutrals by such means as captur-
ing contraband of war (i.e., goods that are connected with war, such as arms
and ammunition). He justified this action in terms of what would later be
called the principle of necessity, meaning the right to take action in emer-
gencies that involved infringements of the rights of others.
More important yet, Vattel inaugurated a major shift in the law relating to
the conduct of war. This was to propose replacing the principle of military
necessity—which (as previously observed) was the lone rule on the conduct
of war in just-war doctrine—with a fi xed code of rules on warfare. The
code would be the product of the voluntary law rather than of natural law.
Instead of determining the lawfulness of belligerent action in terms of its
military value in the circumstances of each individual case, there would be
a set of objective rules to be applied mechanically in all situations. For this
innovation, Vattel deserves to be regarded as the leading figure in the mod-
ern law of war.
If Vattel may fairly be said to be the father of our modern approach to the
laws of war, it must be confessed that his offspring had a very long gestation
period. Until well into the nineteenth century, hardly any progress was ac-
tually made on drafting a code of laws to govern the conduct of war, beyond
a general agreement on a bare handful of rules, such as a prohibition on the
use of poison or the employment of assassins. But Vattel nonetheless de-
serves recognition as the first international-law writer to point out the direc-
tion in which the law would go in the future.
G. F. von Martens
The most noteworthy writer in the tradition in the generation after Vattel
was the German author Georg Friedrich von Martens. Originally from
Hamburg, he became a professor of jurisprudence at the University of Göt-
tingen in 1783. We have earlier taken note of his work as the compiler of a
collection of European treaties (in 1791). In the course of his career, he served
various governments (some of which he outlived). In 1808, he became a coun-
sellor of state to the elector of Hanover. Two years later, he served in the coun-
cil of state of the short-lived Kingdom of Westphalia (a Bonaparte creation).
He then returned to Hanoverian ser vice, as privy cabinet councillor in 1814
and later as a representative of Hanover in the diet of the post-1815 German
Confederation.
Amid this activity, he found time to pen a general treatise on interna-
tional law that was strongly in the spirit of Vattel. The first edition appeared
in 1785 in Latin—the last major occasion, incidentally, in which that vener-

able tongue was employed in international legal writing. The second and
subsequent editions were in French, as Précis du droit des gens moderne de
l’Europe (Summary of the Modern European Law of Nations). It was trans-
lated into English in 1795 by the prominent British journalist and contro-
versialist William Cobbett. A German edition finally appeared in 1796. This
book, like Vattel’s, was designed to serve a practical function—in his case,
for use in a university course on politics and diplomacy.
From the outset, Martens insisted on a fundamental distinction in law
that was importantly different from that of his predecessors in the Grotian
tradition. This was the distinction between rules of law, on the one hand,
and rules of morality or conscience, on the other. He credited Kant with the
initial insight. The difference, in brief, was that rules of law are imposed
from the outside by some kind of authority, whereas rules of morality are
self-devised. Martens’s own interest was on the law side.
In general, Martens’s treatment of international law did not actually dif-
fer greatly from that of Vattel and other authors in the Grotian tradition. He
praised Vattel, along with Zouche and Textor, for offering modern examples
to illustrate their doctrines. And he applauded Moser as the first to approach
the subject systematically. Like Wolff and Vattel, he conceded that, in prin-
ciple, natural law was the same for states as for individuals—but that the ap-
plication of that law to states necessitates some adjustments and thereby gives
rise to a law of nations that differs from the general law of nature. It was
clear that his principal interest lay in expounding the portion of the law of
nations that was man-made—what he called “the positive, proper, particu-
lar and arbitrary” law applicable to relations between states. This law arose
from custom and from treaty practice. It was necessarily pluralistic, with
each state having its own menu of rights and duties, depending on what
agreements it had chosen to enter into with other countries. There was not,
and could not be, any such thing as a universal law of nations. There may be,
Martens conceded, a universal society of states—but if so, it must be a natu-
ral society (meaning one governed by natural law), and not a positive one
(governed by positive, or man-made, law).
Martens was perhaps the most explicit of the writers of this period in his
endorsement of an inductive method for his exposition. His goal, he ex-
plained, was to observe the sundry specific rules agreed on by a large number
of European states and then to induce from them “a theory of the law of na-
tions of Europe [which is] general, positive, modern and practical.” He was
careful to explain the utility that such an abstracted general law would have:
that, in the resolution of disputes, it would suffice to determine and apply
the contents of this general law, without needing to produce evidence of ac-
tual agreement between states on specific rules.
Among the puzzles to which Martens turned his attention was the ques-
tion of how a single state could become legally bound to follow a given course
of conduct in the absence of a treaty obligation. A mere persistent practice by
a state could not, on its own, have this effect, Martens maintained. But it
could give rise to a presumption that the practice was well founded and rea-
sonable. Even a single act by the state in question could give rise to such a
presumption, which could then be “fortified” over time by further experi-
ence. On the whole, a conjunction of various factors could, in combina-
tion, have the effect of promoting a customary practice by a state into a rule
of law. These factors included the natural force of habit, the advantage af-
forded to the state itself by continued adherence to the practice, the desire to
be regarded as a civilized state in the eyes of others, and a fear of countermea-
sures or opposition in case of disavowal.
Martens also gave some attention to the relationship between customary
law and treaties. He contended that an ensemble of specific arrangements,
such as a network of bilateral treaties on some subject, could be regarded as
constituting, in the aggregate, “a general convention.” This general conven-
tion would be a customary or unwritten rule of law, even though it had its
origin in the treaty practice of states.
If Vattel was more successful than Martens in appealing to a wide audi-
ence, Martens had the higher reputation among lawyers and scholars. In
the nineteenth century, he would be regarded, with at least some reason, as
an important progenitor of the positivist philosophy of international law.
That praise is somewhat misplaced (as will be seen), but it provides a telling
indication of the esteem in which he was held. Martens was certainly no
aggressive modernist by temperament. His principal contribution to inter-
national law lay in the useful light that he shed on the process by which in-
ternational law is made. This was in contrast to Vattel, who remained much
more in thrall to the idea of natural law as an eternal and unchangeable
corpus of rules. Martens was more sensitive the idea that international law
is something that is made and not merely (or exclusively) something that is
found.
Making Law
Over the course of time, the pragmatic approach to international law gained
ground over the rationalistic one—a process that would culminate in
nineteenth-century positivism. Wolff was the last major figure to write in
an uncompromisingly rationalist mode. (Not until the Vienna School of the
1920s would there be anything further in this style.) There were many as-
pects of state practice for the pragmatist writers to take stock of. It is unfortu-
nate that there has not (so far) been any major tradition of writing detailed
histories of international law in particular periods. The eighteenth century
(like all others) would certainly make an interesting study. For the present,
two areas of activity may be given some modest attention, by way of illustra-
tion: treaties of amity and commerce, and maritime law.
Treaties of Amity and Commerce

There is no better illustration of the process by which international law is
built from the bottom up, by conscious state practice, than the network of
treaties of amity and commerce that began to be a common feature of the
European landscape in about the middle of the seventeenth century. They
were a sort of latter-day successor to the law merchant of the Middle Ages,
in that they were a key mechanism for facilitating international trade. They
also resembled the law merchant in constituting, in effect, a transnational
code of law, by virtue of the fact that there was a very high degree of similar-
ity in the contents of these treaties. This makes it possible to treat them as a
group.
These treaties of amity and commerce had several important features, of
which four were especially noteworthy. First was the stipulation of a number
of basic rights to be accorded to individuals involved in commercial activi-
ties between the treaty states. These persons were not, of course, themselves
parties to these treaties. Only states were. But they were the beneficiaries of
the rights set out. Broadly speaking, the two state parties would typically
agree to grant to one another’s nationals the right to settle and trade in their
respective territories. Crucially, these treaties also typically provided that
the nationals of each state resident in the other’s territory be guaranteed to
be treated on a par with nationals of the host country in regard to such mat-
ters as access to courts and liability to taxation. Resident merchants were
commonly guaranteed a right of freedom of worship, too, in cases where the
treaty parties were of different established faiths. In this way, the treaties of
amity and commerce became forerunners of later international conventions
on human rights.
A second important common feature of the network of treaties of amity
and commerce was the standardization of practice concerning reprisals. Be-
ginning in about the middle of the seventeenth century, states began to in-
clude in their treaties of amity and commerce provisions expressly limiting
the right of the governments to grant letters of marque and reprisal to their
nationals. Generally, the requirement was that such letters would not be is-
sued unless there had previously been a formal request by one ruler to the
other for a remedy, followed by a clear failure to provide justice. The Nether-
lands played the leading role in this trend. An early agreement to this effect
was found in the truce of 1609 between Spain and the Netherlands (during
the War of Dutch Independence). A similar provision appeared in the final
peace treaty of 1648 between the two countries.
Other countries soon followed this lead. In 1654, England and the Neth-
erlands agreed, in the peace treaty that brought the first Anglo-Dutch War
to a conclusion, that letters of marque and reprisal could be issued only after
a three-month period following a failure to do justice. A treaty of amity
and commerce between France and the Netherlands in 1662 provided that
letters of marque and reprisal could be issued only after the occurrence of a
“manifest denial of justice.” By the early eighteenth century, it was matter-
of-factly stated that this limitation on the issuing of letters of marque and
reprisal was “accepted usage” among the European states.
A third important common feature of these treaties was that they formed
the basis of the law of neutrality—a subject that just-war doctrine had dis-
dained. The most important element here was an agreement that “free ships
make free goods,” which came into play whenever one of the states was at war
while the other one was at peace. The earlier general rule, as laid down in the
medieval Consolato del Mare, had been that the state at war was entitled to
capture property belonging to enemy nationals even if it was being carried
on a neutral ship on the high seas. A “free ships–free goods” provision al-
tered that rule between the two treaty parties, by providing that the belliger-
ent state could not capture enemy property from ships of the neutral country.
In the common expression of the time, it was said that the neutral flag “cov-
ered” the enemy goods and kept them legally safe from capture. When ar-
rangements of this type were made on a wide scale—as they were—the net
effect was to reduce the impact of war on the activities of maritime traders,
since nationals of belligerent states could now ship their goods on neutral
vessels and thereby legally bar the enemy from capturing them.
The fourth common element in the treaty practice was the development
of what came to be called a most-favored-nation clause. This entitled each
party to a treaty to be given treatment equal to that accorded to any third
party—even if the third party’s favorable treatment was arranged at some
unspecified future time. The first most-favored-nation clause that clearly
included this element of futurity appeared in a bilateral treaty between En-
gland and Spain in 1667. As provisions of this kind appeared in more and
more treaties, the effect was a gradual introduction, from the ground up, of
a system of nondiscrimination in commercial relations.
Bilateral treaties had some weaknesses, however. For one thing, their con-
tents were necessarily dependent on the bargaining process between gov-
ernments. It was the general policy of the British government not to agree to
the inclusion of “free ships–free goods” provisions in treaties to which it was
a party. As the strongest maritime power, it was careful to avoid placing le-
gal restrictions on the benefits that its naval strength could bring. Moreover,
there was a certain fragility to these treaties, since it was generally accepted
that an outbreak of war between two states automatically terminated all
treaties between them. Still, there was no doubting that the treaty network
did, in fact, make for stability between the European countries and lay a
firm foundation for rights of foreign merchants abroad—and, more widely,
for nondiscrimination against foreigners generally—as well as for the rights
of neutral traders during wartime.
Law at Sea
The situation regarding the law of the sea provides another excellent illustra-
tion of the manner in which international law was increasingly becoming a
matter of reconciling concrete interests—in this case, without much regard
to the demands of an eternal and universal natural law on high. It has been
observed that, in the Middle Ages, it was not uncommon for states to make
claims of sovereignty over areas of the seas. Natural-law writers consis-
tently rejected such claims, though, asserting that the sea was common to
all for the two key operations of fishing and navigation.
It was conceded, however, even by champions of freedom of the seas, such
as Grotius, that at least some kind of property right could be acquired, by
way of occupation, over certain very small areas of the sea, such as inlets
largely enclosed by land. The question was the kind of right. Some writers
contended that occupation could confer full ownership, or dominium in the
parlance of Roman law. This was on the model of the Roman law of occupa-
tion, which (as observed earlier) was one of the “natural” modes of acquir-
ing title to property. Others contended, though, that the more apposite
concept was the Roman-law principle of imperium, according to which the
rights of the coastal state were strictly contingent upon the actual exercise of
control. So long as the control was actually and effectively exercised, a legal
right of possession would be recognized by other parties. But if that control
lapsed, then the area reverted to its prior status of being free to all.
This imperium argument was put by another of the opponents of James I’s
fisheries claim, French lawyer and diplomat Pierre Jeannin. A coastal state,
he maintained, can only assert its power over maritime areas which are
within range of its artillery fire. Beyond that point, the sea must be free to
all. This appears to be the first appearance in print of what became known,
for obvious reasons, as the “cannon-shot rule,” but it also seems that Jean-
nin was expressing a position widely held at the time. In all events, the
cannon-shot principle came to be widely accepted in the course of the eigh-
teenth century, largely on the strength of Bynkerhshoek’s advocacy of it in
his pamphlet of 1703 on maritime law.
In the course of the eighteenth century, the nature of the coastal state’s
right underwent a subtle, but significant, alteration: from a basis of impe-
rium to one of dominium. The idea of imperium implied that a coastal state
could have legal title to any area of the sea which it actually policed—that is,
to areas where artillery was physically deployed. This position was not ad-
hered to, however. It came to be agreed that what coastal states possessed was
true dominium over their offshore areas, with the cannon-shot principle now
functioning merely as a unit of account for measurement. There continued to
be disagreement, though, about the breadth of territorial seas (as they came to
be called). For instance, there was dispute as to just what the much-vaunted
cannon-shot distance actually was. Different states made different assertions
on this point, with some states claiming three miles and others four. It might
also be wondered whether territorial seas should automatically expand in
width as artillery technology improved. Not until the late twentieth century
would this issue be satisfactorily resolved.
Revolutionary Times
The French Revolution, which began in 1789, was a frightening affair to con-
servative forces throughout Europe. One of the many aspects of that cata-
clysm that would have long-term implications was the association between
natural-law ideas and political radicalism. This was not altogether new,
since the “Glorious Revolution” in England in 1688 and the American War
of Independence both witnessed appeals to natural law and natural rights. It
should be appreciated, too, that general natural-law thought (i.e., not spe-
cifically relating to international affairs) had been decidedly reformist in
character throughout the late seventeenth and eighteenth centuries. It is not
difficult to see that a system of thought characterized by a resolute and un-
compromising rationalism would be perceived as threatening by entrenched
elites and vested interests. This is indicated by the reaction to one of the
major features of systematic jurisprudence (as general natural-law studies
were sometimes known): codification of law. Codification was, in large part,
a program for sweeping away the various excrescences, anachronisms, anti-
quated practices, localisms, and fictions with which legal systems were en-
crusted, and replacing them with streamlined, rational, centralized ways of
operating.
Exemplifying this disruptive, quasi-subversive aspect of natural law was a
group of writers in France known as the physiocrats, who emerged in the
1750s. Their very title (meaning “rule by nature” in Greek) highlighted the
centrality of natural law to their thought. They sought to strengthen central
government at the expense of local and feudal interests, while at the same
time liberating individuals to engage in productive activity without hin-
drance from those same interests. (“Laissez faire, laissez passez” was one of
their many slogans.) Their many plans for reform seemed worryingly un-
settling, for good reason, to those who were committed to traditional ways—
most notably to feudal magnates whose tradition-encrusted rights placed
severe limits on the free marketability of land.
The French Revolution, commencing in 1789, reinforced and greatly mag-
nified this association between natural law and radical reformism. Moreover,
its popular agitators were far more alarming than their genteel (and strongly
royalist) physiocratic predecessors. The revolutionaries, and especially the
Jacobins, were renowned for their bombastic appeals to natural rights—and
also for their policies of extreme centralization and ruthless extirpation of
obsolete customs, feudal and ecclesiastical privileges, and other vestiges of
the past. (They also had a regrettable fondness for the guillotine.)
In the field of international law, too, there were some indications that
the French Revolution would mark a radical break with the past. But this
promise—or threat—was not, in the event, borne out. In many respects, the
French Revolution would appear to have made comparatively little impact on
international law, however cataclysmic an event it was in many other ways.
The wars that raged in its wake, from 1792 to 1815 almost without interrup-
tion, were begun and ended in much the usual way—with indignant (and
often mutual) accusations of wrongdoing at the start, and peace agreements of
a more or less coerced character at the end. Innovations certainly did occur,
but those that proved the most lasting were of an incremental character—and,
ironically, came not from the agitators and firebrands of Paris, but rather from
the bewigged judges of the admiralty courts of England.
Radicalism in the Air

There were various early indications that the French Revolution might lead
to fundamental changes in international relations. One of these signs was
the Declaration of Peace, issued by the National Constituent Assembly in
May 1790. In it, the French government announced its renunciation of
“the undertaking of any wars aimed at conquest” and vowed to “never em-
ploy its forces against the liberty of any people.” The republican constitu-
tion of 1793, in a similar spirit, grandly proclaimed the French people to be
“the friends and natural allies of free peoples.” It renounced any ambition of
interfering in the affairs of other countries, while asserting freedom for it-
self from intervention by foreigners. It also committed France to granting

asylum to “foreigners who, in the name of liberty, are banished from their
homelands,” while pointedly excluding “tyrants” from this privilege.
In 1792, the French National Assembly, in a spirit of philanthropy, voted
for the abolition of the capture of private property in maritime warfare—
that is, not merely for the “free ships–free goods” principle, barring capture
from neutral ships, but also for a total ban on any capture of private prop-
erty at sea. Other powers were invited to adhere to this generous principle.
The U.S. government responded favorably, as did the German Hanseatic
League (plus the free city of Hamburg). No other states did, however, so that
initiative had no lasting effect.
An interesting question that arose—for apparently the first time in
history—concerned the degree of continuity between a revolutionary gov-
ernment and its predecessor. The immediate context was the issue of what to
do about treaties concluded by the royal governments prior to the revolu-
tion. It appears that the French Revolutionary governments never established
a general policy on this. Prior treaties with the United States and Switzerland
were expressly reaffirmed. But an alliance arrangement with Spain—the so-
called Family Compact of 1761 (referring to the Bourbon family, different
branches of which occupied the two thrones)—was not. That became evi-
dent when the Spanish government sought to invoke the compact. In 1789, a
Spanish warship claimed possession of Nootka Sound, off the west coast of
Vancouver Island in northwestern North America, and proceeded to capture
two British vessels. This act provoked a threat of war by the British govern-
ment. In the face of this threat, the Spanish government sought France’s aid
pursuant to the compact. After a fierce debate, the French National Constitu-
ent Assembly decided against assisting Spain. In fact, it was the debate over
this question that led to the adoption of the Declaration of Peace.
In addition, the Revolutionary government flagrantly breached prior
treaty commitments when it voted, in November 1792, to reopen the Scheldt
River, in the southern Netherlands, after gaining control of the area. The
Scheldt had been closed to large merchant vessels since the Treaty of West-
phalia, with a view to forestalling commercial rivalry to the Dutch Republic.
Although the closure had been reiterated many times since then in treaties,
the Revolutionary government unilaterally declared it open. In the face of a
British protest, the French government defended the reopening as an assertion
of natural right on behalf of a liberated people. This controversy formed one

of the principal bases for Britain’s declaration of war against France the fol-
lowing year.
The opposing powers advanced some innovations, too. The principal one
was the Declaration of Pilnitz, promulgated jointly in August 1791 by the
Holy Roman Empire and Prussia, prior to the actual outbreak of war. The
noteworthy part of this declaration was the assertion that the events in
France could not be regarded as internal matters affecting France alone, but
instead must be seen as “a matter of common interest to all the sovereigns of
Europe.” The declaring states went on to announce preparations for a pos-
sible armed intervention into France in support of King Louis XVI against
the revolutionaries. Nothing concrete came of this, as it happened, but
more would be heard of the idea, in a variety of contexts, in the future.
The following year, the revolutionary government announced an inter-
ventionist policy of its own, in the form of exporting the French Revolution
to other countries. After the outbreak of war against Austria and Prussia,
and the decisive French victories at the Battles of Valmy and Jemappes in
1792, the National Convention resolved that it would no longer respect the
rights of enemy powers as domestic sovereigns over their own nations. In-
stead, France would “grant fraternity and aid to all peoples who wish to re-
cover their liberty.” War, in the phrase of the revolutionary leader Georges
Jacques Danton, was to be “the exterminating angel of liberty.”
Fears soon grew, however, that the angel’s homicidal tendencies might be
exercised in undesirable directions. In April 1793, the “fraternity decree” (as
it was sometimes called) was revoked. It was replaced by another one, stat-
ing that France “will not interfere in any way in the government of other
powers.” Danton, of all people, announced the change. The fraternity decree,
he explained, may have had a “beautiful motive,” but realism now demanded
steady attention to France’s own self-preservation and avoiding unnecessary
offense to others. Sobriety sometimes prevailed over enthusiasm, even in
those tumultuous times.
Another—and decidedly tamer—indication of the association of natural
law with reformist (and even radical) politics was a proposed charter on the
rights of peoples, which was designed as a counterpart to the earlier Decla-
ration on the Rights of Man and the Citizen. It was presented to the Na-
tional Convention in 1793 by Henri Grégoire. He was a priest and a general
humanitarian and literary figure, as well as an early supporter of the revolu-

tion in general, and of the abolition of the monarchy in par ticular (with his
memorable assertion that “kings are in morality what monsters are in the
world of nature”). He served for a time as president of the National Conven-
tion. Among his causes were the organization of public libraries, the estab-
lishment of botanical gardens, the improvement of education in general, the
preservation of antiquities against “vandalism” (a term that he coined), and
the championing of racial equality. One of the less known of his many inter-
ests was the codification of international law.
Grégoire’s proposed declaration was nothing resembling a detailed code
of substantive law. It was a statement of very general principles, scarcely over
a page in length, with a pungent natural-law flavor. It comprised twenty-one
articles, of which the first stated the nations of the world to be “among them-
selves in the state of nature” with “universal morality” as their common
bond. “A nation should act towards others,” it asserted, “as it wishes others to
act towards it; what a man owes to a man, a nation owes to another nation.”
Nations were exhorted to “do in peace the greatest amount of good to each
other, and in war the least harm possible.” They were also urged to subordi-
nate their private interests “to the general interest of the human family.” Some
of the provisions were a bit more specific than these. There was a statement,
for example, that a “nation has not the right to meddle in the government of
others.” It asserted that “[e]very nation is the owner of its own territory.” Al-
liances directed against “the interest of a country” were pronounced to be
“an attack against the human family.” Diplomatic immunity was asserted,
and treaties declared to be “sacred and inviolable.”
One person who was unimpressed with Grégoire’s effort was Martens. Of
a generally conservative temperament, as well as a pragmatic one, Martens
was a staunch foe of the French Revolution generally. He was contemptuous
of Grégoire’s opus in particular, deriding it as “nothing but a beautiful play
of fancy” that was ultimately “nothing but a chimera.” Also voicing objec-
tion to rationalistic, natural-law approaches to international law was a British
lawyer named Robert Ward. He rejected the very idea of deriving interna-
tional law in hypothetico-deductive fashion from a set of first principles, ar-
guing instead for a pluralistic world in which “varieties of religion and . . .
moral systems,” combined with “important local circumstances,” produced
different systems of international law for different parts of the world.
In all events, Martens and Ward need not have been unduly worried
about Grégoire’s project. It was not adopted. The worthy prelate showed
some persistence, however, presenting it a second time in 1795. On this oc-
casion, too, it bore no fruit. According to Grégoire’s memory, the members
of the Committee for Public Safety feared that the project would “irritate
the despots with whom it was intended to enter into negotiations.”
The fate of Grégoire’s codification proposal was symptomatic of the im-
pact of the French Revolution on international law. Early hopes (or fears)
that it might portend radical changes went largely unrealized—a point that
Martens noted with evident relief in the 1801 edition of his treatise. As
attractive as the idea of a continent-wide alliance against royalty and aris-
tocracy was to some, it failed to bear significant fruit. Antiroyalist procla-
mations and appeals might make for effective propaganda (though even that
wore off over time), but they did not provide a basis for replacing the rival-
ries of states with clashes of ideologies. The wars of the French Revolution
era were, for the most part, further installments of political clashes of the
familiar sort. Napoleon Bonaparte, at the head of the French armies, cut a
dazzling figure whose fascination still endures. But at the end of the process,
France was reduced to virtually its pre-Revolution position, as one Euro-
pean power among many.
It should not be thought, though, that the French Revolution era was of
no great significance to the history of international law. On the contrary,
there were some important developments. But they came not at the hands of
frantic revolutionaries in Paris, but instead from a much more staid group
of persons on the other side of the English Channel.
Across the Channel

In one rather quiet respect, the year 1789 was a notable one for the science of
international law. No Bastille was stormed, or “Marseillaise” sung. But the
subject did acquire its modern English-language name, compliments of the
British reformer and social critic Jeremy Bentham. In his Introduction to
the Principles of Morals and Legislation, he employed the adjective “interna-
tional” to the body of law that governed “the mutual transactions between
sovereigns, as such.” The term was, admittedly, not altogether new. Zouche
had employed a Latin version of it, ius inter gentes. Bentham’s own source
was a French writer and political figure, Henri François d’Aguesseau, who
served as procurator general of France for many years, as well as chancellor on
three different occasions in the early eighteenth century. (His statue silently
surveys the passing crowds of Paris in front of the Palais Bourbon.)
D’Aguesseau, like Zouche, had opined that “droit entre les gens” (law between
nations) would be a better description of the subject, in place of the more tra-
ditional “droit des gens” (law of nations). Bentham’s modest contribution was
to translate this into English by coining the neologism “international.”
In the period just before this, in 1786–89, Bentham had published a series
of four brief articles, to which he gave the collective title of “Principles of
International Law.” In the first of these, he sought to bring the insights of his
utilitarian philosophy to bear on the subject. Bentham famously had no use
for abstract concepts of natural rights, of the sort that were soon to boil over
in France. Instead, his guiding star was the more down-to-earth concept of
utility. In this vein, he proposed that the goal of international law should be
“the greatest happiness of all nations taken together.” The last of the four
essays was “A Plan for Universal and Perpetual Peace.” It was largely a plea
for a twofold program of arms limitation and decolonization. But it also in-
cluded a proposal for a “common court of judicature” for the international
community. He pondered whether an armed force should be formed to en-
force the court’s judgments if need be, but decided against it. A better means
of ensuring compliance, he thought, would be by force of public opinion.
Firm guarantees of freedom of the press in countries throughout the world
would be the means by which this opinion would be mobilized.
Shortly after that—though owing nothing to Bentham’s inspiration—an
international judicial mechanism, of a sort, was actually established. This
was a body of the type that became known as a mixed-claims commission,
established by the United States and Britain in the Jay Treaty of 1794 (named
for its American negotiator). One function of the treaty was to resolve
disputes that had arisen between the two countries over some captures of
American ships by the British navy in the West Indies in 1793–94, after the
outbreak of war between Britain and France. This was to be done by a five-
member commission, comprising members of both states (hence the name
“mixed” claims commission). A second body was established to deal with
the vexing question of indebtedness by Americans to British creditors. In the
commission on ship seizures, the leading dispute was over the lawfulness of
seizing foodstuffs as contraband of war. The issue was decided in the Ameri-
cans’ favor, meaning that such seizures were not lawful. The tribunal sat
until 1804, making awards of damage of some £1.3 million to American
claimants, and some $110,000 to British ones.
One other noteworthy legal advance in the English-speaking world oc-
curred in the period of the French Revolutionary wars. This was the evolu-
tion of a substantial body of important case law on various aspects of mari-
time war—most of all on issues of neutrality—from the British admiralty
courts. The most outstanding figure was William Scott (who, much later,
became Lord Stowell). Originally from Newcastle, Scott was a highly capa-
ble lawyer and a general bon vivant (being a member of Samuel Johnson’s
literary and artistic circle). In his court judgments, he revealed himself as a
stylist to rival even Vattel. He may also be thought of as perhaps the supreme
figure in the pragmatic tradition, along with Martens. His judgments showed
a close familiarity with the actual practices of maritime affairs, in both peace
and war (including a keen nose for fraud and skulduggery). He relied on this
knowledge as the best evidence of the state of international law in the cases
that came before him.
In Scott’s opinion, international law was founded on “the usages and prac-
tices of nations” rather than on “mere speculative general principles.” It
would therefore be wrong, he maintained, to give effect to “general theory . . .
independent of all practice.” Scott conceded that the law of nations was “in-
troduced” by general principles, but then immediately cautioned that “it
travels with these principles only to a certain extent: and, if it stops there, [a
judge is] not at liberty to go farther, and to say, that mere general specula-
tions would bear you out in a further progress.” He announced his deter-
mination to “take my stand on the ancient and universal practice of man-
kind; and say that as far as that practice has gone, I am willing to go; and
where it has thought proper to stop, there I must stop likewise.”
Scott nonetheless made invaluable contributions to international law, by
clarifying and fleshing out the details of existing practices. He was a con-
summate fi ller of gaps, if not a maker of daring leaps. His most important
judgments were in the area of maritime neutrality, and most outstandingly
to the detailed elaboration of the law relating to blockade. He also laid the
foundation for what later became known as the law of unneutral ser vice,
which was the law dealing with actions by supposedly neutral states that as-
sisted the war effort of a belligerent, the classic example being the carriage of
troops.
Even if Scott’s admiralty court was not a court of the English common
law, Scott stands out as the most quintessentially English of all major figures
in the history of international law, patiently building the law on a piecemeal
basis, in the manner of a coral reef. He never wrote a treatise. But his judg-
ments still sparkle over a gap of two centuries and more. For the most part,
however, international law was not a judge-made corpus, in the manner of
the English common law. We have seen that its major builders were system-
atic thinkers in the rationalist tradition, or else pragmatists like Bynker-
shoek and Martens, who paid attention to the whole range of state practice—
including treaties and national legislation—in addition to court decisions.
Scott’s work was therefore very influential within the English-speaking world,
but little noted outside it.
Nevertheless, the overall trend continued to be in the direction of the prag-
matists over the rationalists. This trend was even reinforced by the French
Revolution because of the unsettling association between political radical-
ism and appeals to natural law and natural rights. The final defeat of France
in 1815 naturally served to discredit, at least to some extent, the subversive
ideas that had animated it. In the coming century, the dominant role of the
pragmatists would go much further yet, and the extreme state practice end
of the international-law spectrum would begin to attract an important
crowd. The ants would contest the field with the spiders and the bees.
III
A Positive Century
(1815–1914)
There is no law of nations outside of the customs followed by
nations and the obligations contracted by States.
—Théophile Funck- Brentano and Albert Sorel
At the beginning and the ending points of the (postrevolutionary)

nineteenth century, the world was treated to two highly contrasting specta-
cles in international relations. In 1814–15, the victorious powers in the re-
cent French Revolutionary Wars convened in Vienna. At the opposite end of
the century, in 1899, delegates from twenty-six states met in The Hague for a
peace conference of a very different sort. These two gatherings presented con-
trasts in a number of instructive ways. In terms of stylishness, there was no
comparison. The Congress of Vienna was a gathering of the fashionable and
festive, as well as of the victorious—one of the great social events of the cen-
tury. By comparison, The Hague Peace Conference was a drab affair (although
it, too, had an ample social calendar alongside the conference business), with
an abundance of frock coats and a shortage of colorful personalities.
Another striking contrast between the two events was the visibility of in-
ternational lawyers. At Vienna, these exotic creatures were scarcely in evi-
dence. The only international lawyer of note on the scene was a German
named Johann Ludwig Klüber, and he appears to have been a freelance, not
connected to—or consulted by—any of the state delegations. He was a gath-
erer of documents who went on to compile a multivolume history of the
conference (and also to write a treatise on international law). Present as
well, but even less conspicuously, was a lawyer from Florence named Lo-
renzo Collini, who was the secretary of the Crusca Academy (a Tuscan liter-
ary body). He helpfully (and anonymously) supplied the statesmen at the
Congress of Vienna with twenty-five copies of a draft code of international
law—which did not, however, find its way onto the congress’s agenda.
Things were very different at The Hague. International lawyers were very
much in evidence in all of the major state delegations and some of the minor
ones. A great deal of the conference’s substantive work, in fact, was legal
business, relating to the laws of war and arbitration of disputes. The high
standing of lawyers was indicated by the impressive official description ac-
corded to them: “scientific delegates.” That label summed up, as succinctly
as possible, what had happened to international law over the preceding
218 A Positive Century (1815–1914)
century. It had become scientific in the nineteenth-century sense of that

term—meaning a body of knowledge based on observation and experiment
rather than on speculation and deductive reasoning. More specifically, in-
ternational law had embraced the fashionable “positive philosophy” of the
age, the creed of science and progress. In so doing, it had paid the necessary
entry fee. That is, it had discarded a great deal—and for some lawyers, even
all—of the venerable legacy of natural law.
Much of the older critical spirit of international legal writing was lost in
this process. No longer would writers cheerfully proclaim, as Vattel did, that
their outpourings would be (and were intended to be) critical of the ways of
statesmen. Now it would be conceded that it was those very statesmen who
actually made international law by way of state practice. The task of interna-
tional lawyers was to record and systematize this process, not to criticize it.
The mission of the new scientific lawyer was to be an apolitical craftsman,
not a harping social critic. But if international lawyers lost much of their
critical edge in this period, they gained very greatly in other ways. They ac-
quired access to the inner circles of power, for one thing, even if was more in
the role of servant than of policy maker. No one pretended that it was the
task of international lawyers to make policy, but their ser vices were required
for implementation. In the international sphere, in short, lawyers were com-
ing to function as the mechanics who labored behind the scenes to keep the
juridical machinery of everyday life humming smoothly.
There were many in the international-law community who chafed at these
limitations. Some natural-law partisans—whose ranks were now greatly
attenuated—continued to dream of power as the servant of law rather than
vice versa. Other lawyers pledged allegiance to some of the other new trends
of the time: to popular nationalism, a legacy of the French Revolution that
even the fashionistas of Vienna were unable to bottle up; or to liberalism,
with its entrancing calls for liberation, democracy, and human rights. There
were glimmerings, too, of sociological perspectives on international law.
The nineteenth century, in short, was an age of great achievement in in-
ternational law as in so many other walks of life. (How curious, then, that a
major book on the subject has never been written.) There were landmark
advances in a host of fields—from the laws of war, to arbitration, to the rise
of multilateral treaty making, and (not least) to the emergence of interna-
tional law itself as a (more or less) organized profession.
A Positive Century (1815–1914) 219
It was an age, too, of contradiction (as all ages are). The palpable sense of
progress was allied to a deep conservatism. International lawyers were more
essential to the smooth working of the world than ever before, but they were
also less visible. If they were more scientific than before, they were also more
subservient to power. The nineteenth century was truly a heroic age of inter-
national law, but one that was singularly lacking in heroes. No international
lawyer in the period achieved a degree of public renown approaching that of
Grotius or Vattel. None achieved the public stature of a Clarence Darrow, a
Daniel Webster, a John Marshall, or a Blackstone. We will meet with two
Nobel Peace Prize winners in the course of our history of this period. But
they are little remembered save in specialist circles.
Despite all of this, it was in the nineteenth century that international law as
we know it today took shape. All of the major intellectual trends of the twenti-
eth and twenty-first centuries had their origins in this era (with the conspicu-
ous exception of natural law, which is much older)—even if some had no more
than their earliest glimmerings. Whether we should be grateful to our ances-
tors for what we have so largely become might be a matter for some earnest
debate. But at a minimum, we should take full note of their achievements
and of the legacies that they left.
chapter six
Breaking with the Past
y  – , French revolutionaries and their grand principles were in very
B bad odor—at least in the eyes of the governments of the allied states that
had defeated revolutionary (and imperial) France, after more than twenty
arduous years of war. Among the products of the revolution that the victori-
ous powers were determined to bury were appeals to natural rights against
established authority. It had become all too apparent how much damage
could be done by persons whom the British politician and polemicist Ed-
mund Burke derided as “speculatists,” with their grandiose plans for the
wholesale replacement of a corrupt present with a rational future. Burke
had nothing but scorn for “those extravagant and presumptuous specula-
tions” that lead revolutionary leaders “to despise all their predecessors, and
all their contemporaries.” The proper course of action, in his opinion, is to
build on the solid basis of the past, and always with due regard to the con-
crete realities of human experience.
International lawyers in the nineteenth century—an unrevolutionary
group if ever there was one—largely followed Burke’s advice. Ironically, in
so doing they made a revolution of their own. The monarch they overthrew
was not, however, of human flesh. It was natural law. It is true that natural
law had been gradually loosening its grip over lawyers—at least those of the
Grotian persuasion—throughout the eighteenth century. But the nineteenth-
century positivists went a decisive step further, by rejecting natural law
wholesale and in principle, instead of merely reducing their reliance on it, as
writers like Bynkershoek and Martens had previously done. International
lawyers would now, for the first time, begin to congregate at the extreme
pragmatic end of the international-law spectrum. The age of the ants had
arrived.
This principled rejection of natural law lay at the heart of the positivist
philosophy of international law. It was not, in reality, a single philosophy. It
came in three quite distinct variations. But those variations were capable of
intermingling—if not always very harmoniously—into a broad, if loose,
synthesis to which the label “mainstream positivism” will be given.
Dethroning the Law of Nature
The self-proclaimed inventor and champion of the “positive philosophy”

was an imaginative and eccentric French writer named Auguste Comte,
who expounded it, at six-volume length, in 1830–42. He presented it as the
third and culminating stage in the evolution of the collective human mind.
It was contrasted to the two benighted eras that had preceded it: the theologi-
cal and the metaphysical. In the theological age, priesthoods and religious-
based systems generally were in the dominant position. Metaphysical rea-
soning was seen as the preserve, most outstandingly, of lawyers—meaning
natural lawyers, who dealt, in hypothetico-deductive fashion, with abstract
principles and “absolute notions” of various kinds. The positive approach, in
contrast, focused on immediate causation for its explanations, and not on
appeals to ultimate first principles.
Comte was not the first person to think in these terms. He had an emi-
nent medieval forebear in the fourteenth-century English philosopher Wil-
liam of Ockham, who championed what he called “real science,” as opposed
to the prevailing “rational science.”  Real science dealt with individual con-
crete things and was founded on observation and experiment. Rational sci-
ence, in contrast, dealt with concepts and propositions and abstractions. Its
dominant method was logic. The opinions of William of Ockham, to put it
mildly, did not prevail in his time. He was accused of heresy (though was
apparently carried off by the Black Death before his trial could take place).
Comte was optimistic that, in the nineteenth century, the time at last was
ripe for the triumph of real science over its rational foe. His positive philoso-
phy, like William of Ockham’s real science, envisaged taking the world as it
found it, in all its concreteness and richness, and investigating it with an
open mind, divested of the mystical philosophical baggage of the theolo-
gians and the metaphysicians.
Breaking with the Past 223
Two features of Comte’s positive philosophy are of particular note. One is

of a negative character, and the other a positive. On the negative side was a
principled antirationalist stance. From this part of its heritage, positivism
has always had more than a whiff of anti-intellectualism about it. On the
positive side, the new philosophy sounded a powerful tone of optimism. It was
a doctrine of liberation from the chains of the past and the inauguration of a
great future. It had a reformist, progressive outlook that was much in charac-
ter with the ethos of the nineteenth century generally. As such, it became a
quasi-religious creed for reformers, progressives, and modernists everywhere.
In Latin America, its hold was especially strong—most of all in Brazil, where
positivist adherents in the Brazilian military were instrumental in the over-
throw of the monarchy in 1889. They promptly placed the positivist motto
“Order and Progress” onto the Brazilian flag, where it remains today.
At the same time, it should not be thought that Comte was in favor of vio-
lent revolution. Far from it. His temperament was actually staunchly au-
thoritarian. He had little use for democracy, let alone for revolution, and the
positivist utopia that he foresaw for the future was a decidedly regimented
society. It is no accident that the first major academic stronghold of positiv-
ism was the Polytechnic in France (the elite military academy).
The positive philosophy even penetrated the very heartland of the arch-
metaphysicians, the lawyers. The term “positive law” was long familiar, hav-
ing apparently been first employed in the thirteenth century by canon law-
yers. It simply meant man-made law in contrast to natural law. Its foremost
medieval exponent was Marsilius of Padua in the fourteenth century. He
was, fittingly, a contemporary of William of Ockham and even a fellow refu-
gee of William’s at the court of Louis of Bavaria.
Positivism, as a legal philosophy, entailed taking the decisive step of deny-
ing legal status altogether to natural law as a matter of principle, and insist-
ing on positive law as the only kind of law. A doctrinaire positivism of this
kind had a very long (though distant) pedigree in the legalist school of thought
of ancient China. In the Western tradition, however, it was a nineteenth-
century novelty. Its seminal figure was the British lawyer John Austin, a profes-
sor of jurisprudence at the newly founded University of London in the period
1826–32. Austin was inspired not by Comte’s “positive philosophy” (which
had not been formulated at the time) but rather by its British counterpart, the
utilitarian philosophy of Jeremy Bentham.
At the core of Austin’s positivist theory of law was the insistence that law,
properly speaking, must be seen as a system of commands and sanctions
(i.e., enforcement actions), rather than of abstract, general norms, as it was
in the natural-law scheme. “[E]very law simply and strictly so called,” Aus-
tin pronounced, “is set by a sovereign person, or a sovereign body . . . , to a
member or members of the independent political society wherein that per-
son or body is sovereign.” When that law is disobeyed, a sanction will fall
upon the wrongdoer with at least a moderately high degree of certainty. More-
over, Austin had a very strict view of what actually counted as a true sanc-
tion: punishment inflicted by the sovereign upon the misbehaving subject.
Given these exacting requirements, Austin had little difficulty in exclud-
ing international law from the category of law in the strict sense. Most fun-
damentally, the international system was fatally handicapped by the absence
of a sovereign. Its rules (so called) were, in his opinion, merely “opinions or
sentiments among nations generally” and, for that reason, could not be re-
garded as truly law.
International lawyers, not surprisingly, dissented from this extreme
conclusion—while at the same time generally endorsing the “positive phi-
losophy” as applied to law. The three major ways in which they went about
this will be described presently. More immediately, it is well to point out
certain core features that were shared by positivist international lawyers of
all persuasions. Three of these in particular should be noted, all of which are
aspects of a single underlying goal: to transform international law into a sci-
ence, in the modern sense of that term—meaning, in essence, a body of knowl-
edge gained by dispassionate study of the real world, and not in abstract and
logical speculations about that world.
First and foremost of the general features of this new science—and the de-
fining feature of positivism as a philosophy of international law—was the prin-
cipled rejection of natural law as law in the true and proper sense. The British
lawyer William Edward Hall forthrightly contrasted the two opposing concep-
tions of international law. One comprised “logical applications of principles of
right to international relations,” while the other (the positivist one) looked to
“the concrete rules actually in use.” (Hall pumped unequivocally for the lat-
ter.) In much the same spirit, the American jurist Oliver Wendell Holmes Jr.
scornfully dismissed the writings of natural lawyers—the “the à priori men,” as
he derisively termed them. “The life of the law,” insisted Holmes (ever ready
with a memorable phrase), “has not been logic: it has been experience.”
In place of natural law as the ultimate source of international law, the

positivists substituted the will of the states themselves. There was room for
disagreement as to how this will was formed and expressed—and in fact it
was divergence on this point that largely distinguished the three variants of
positivism from one another. There was agreement, though, on the vital
principle of the centrality of will over reason in the making of law. Interna-
tional law, in the positivist picture, was a body of law that was made by the
states themselves for their own purposes. It was not a reflection of transcen-
dental, universal, eternal norms, as natural lawyers held. Instead, it was a
practical system, man-made in origin and for the ser vice of purely human
ends. Where natural lawyers had sought to bend the conduct of states and
rulers in the direction of a preexisting corpus of law, positivist lawyers held
that the law must turn in the direction of state practice.
A second key feature of positivism in all of its varieties was a focus on
method or process as the most fundamental aspect of international law. A
clear model was offered by the natural sciences, which were coming to be
regarded chiefly as a methodical, dispassionate process for the discovery of
knowledge—rather than as a systematic corpus of knowledge seen as a “fin-
ished product.” In a similar vein, international law, in its new scientific guise,
would be seen primarily as a method for discovering what the law is, and for
the forging of new law. This meant that law was now seen as being in a con-
stant state of flux—inevitably defying the efforts of now-discredited natural
lawyers to encapsulate it into a corpus of substantive fi xed principles. Posi-
tivism, in short, represented a triumph of method over system.
A third feature of positivism in general was its insistence on distinguish-
ing law from morality. An important early figure here was Kant, who had
strongly insisted on the radically different character of the two. Law, he
maintained, is a realm of command and coercion. Its function is to compel
persons to behave in certain prescribed ways, and to punish them if they
stray. Morality, in sharpest contrast, is a realm of freedom. More strictly,
morality is a realm of laws or of rules—but, crucially, of laws or rules that
are freely self-made by each moral actor individually. Kant can hardly be
placed among the positivists, since his primary interest was in these self-
imposed rules of morality—but his distinction between the two classes of
rules became (and remains) a key feature of the positivist outlook. The con-
cern of the positivist lawyer was, of course, with law rather than ethics or
morality. More specifically, the task of the positivist lawyer was to know
what the law actually is. Questions of what the law should be were for moral
philosophers and other such dreamers. This point has commonly been put
in terms of the distinction between “is” and “ought”—a dichotomy famously
insisted on by the Scottish philosopher David Hume in the eighteenth cen-
tury. The scientific lawyer deals with the is. Metaphysicians, moralists, and
other such speculators traffic in the ought.
With these general points in mind, it is now possible to explore nineteenth-
century positivism in somewhat more detail—and in doing so, to take care-
ful note of the three distinct versions in which it came.
The Three Variants of Positivism
Nineteenth-century positivism came in, broadly speaking, three variant

forms. A lack of attention on historians’ part has left them without accepted
labels, but descriptive titles can be readily proferred. The first may be termed
the “empirical” variant. It could as easily be called the “inductive” approach
(and sometimes has been). It stressed the making of international law by
the collective action of the states themselves, primarily in the form of cus-
tomary law. The second version will be termed the “common-will” approach.
It focused on international law as arising out of explicit agreements between
states, chiefly in the form of written treaties. The third variant is the “volun-
tarist” approach, which stressed international legal obligations as arising
out of the voluntary acceptance of rules by each state individually, on its
own. In the briefest possible summation, it may be said that the empirical
approach was based on state practice, the common-will version on agree-
ment, and the voluntarist variant on individual state will. The empirical
perspective was an organic outgrowth of the pragmatic wing of the Grotian
tradition of the seventeenth and eighteenth centuries. The other two were
innovations of the nineteenth century.
The Empirical Variant

The core belief of the empirical (or inductive) variant of positivism was the
thesis that the content of international law is (or at least should be) dis-
cerned on an empirical and observational basis, by a close study of actual
state practice. The general scientific ethos of positivism as an observational

discipline was most in evidence here. The principal data were envisaged to
come from the records of history and state practice. The general ethos of the
empirical variant of positivism was aptly summed up in Justice Holmes’s
crisp assertion that “a page of history is worth a volume of logic.”
Of the three avatars of positivism, this one had the greatest measure of
continuity with prior international-law thought. It was a direct and obvious
successor to the pragmatic tradition of the seventeenth and eighteenth cen-
turies, which extended from Zouche to Martens. Those writers are, how-
ever, best regarded as forerunners of positivism and not as true positivists
because they stopped short of denying the very existence of natural law. It
was that crucial step that was new in the nineteenth century. In terms of
Bacon’s biological analogy, the empirical positivists would be regarded as
ants—compiling data from state practice but pointedly not resorting to
speculation to go beyond what the data reveal.
The approach of Martens illustrates this point clearly. Martens was the
quintessential practitioner of the way of the bee, in Bacon’s analogy. That is
to say, he placed a powerful stress on state practice in his treatise. But he was
also careful to explain that, in doing so, his concern was evidentiary rather
than philosophical. He regarded the analysis of state practice as an effective
means by which deeper fundamental principles of law could be inferred.
And his ultimate concern was with those fundamental underlying princi-
ples, and not with state practice for its own sake.
It was on this crucial point that the nineteenth-century empirical positiv-
ists parted company with their pragmatist forebears. They downplayed the
existence of abstract basic principles in favor of specific, individual rules of
law inferred from state practice alone. Stated in technical legal parlance, it
would be said that the nineteenth-century positivists (of the empirical stripe)
held state practice to be constitutive of law, rather than as merely providing
evidence for the law. In other words, it saw state practice as actually making
law, instead of merely revealing it. Martens could therefore be called a posi-
tivist in terms of his method but not in terms of his actual philosophy of law.
The transition from the pragmatic wing of the Grotian tradition to the
empirical positivism of the nineteenth century was neither conspicuous nor
abrupt. It was never announced in programmatic fashion or by a manifesto,
in (for example) the way that Comte had proclaimed the birth of his positive
philosophy. It attained its position of dominance by way of gradual conver-

sion rather than sudden conquest.
An instructive demonstration of positivism’s incremental emergence into
its dominant role is provided by the American writer Henry Wheaton. His
principal early contribution to law had been as a reporter of the judgments
of the U.S. Supreme Court (from 1816–27). After this, he served as chargé
d’affaires for his country in Denmark, followed by a long stint as ambassador
to Prussia. In the course of this diplomatic work, he produced his Elements
of International Law (1836)—the first systematic treatment of the subject by
an English-speaking writer. The book was a great success—comparable even
to that of Vattel—going into many editions, as well as being translated into
various foreign languages. It was in the pragmatic Grotian tradition, broadly
in the vein of Martens. It did not reject natural law on principle. Wheaton,
however, was willing to credit natural law with no greater role than as “a
remote foundation” of international law. “[T]he immediate viable basis” of
the subject, he stated, is “the customs, usages, and conventions [i.e., trea-
ties]” observed by states in their mutual relations. The spirit of positivism
was most evident in the way that the treatise was organized. Wheaton’s very
first topic was the sources of international law, in sharp contrast to Wolff
and Vattel, who had begun with long discourses on states and government
in general. The question of how international law is made was now assum-
ing a central position in legal writing.
Perhaps the first major writer to take an overtly positivist stance was the
German scholar August Heffter. Originally from Saxony, he became a pro-
fessor at the Universities of Bonn, Halle, and finally Berlin. The first edition
of his treatise was written in 1844 in German. It was translated into French
and eventually extended to eight editions. He may fairly be regarded as the
first true positivist writer in international law, in the sense of expressly de-
nying the existence (or at least the relevance) of natural law. Close on his
heels was an English writer named Richard Wildman, who insisted (in 1849)
that the precepts of natural law “can impose no legal obligation until they are
sanctioned by usage or legislative authority, and thus pass into law.”
One of the leading figures of the empirical tradition of positivism was the
Argentinian publicist and diplomat Carlos Calvo. Born in Montevideo in
present-day Uruguay, he was educated in Buenos Aires and then settled in
Brazil. After the fall of the Argentine dictatorship of Manuel Rosas, he
returned to Argentina and became a member of the Chamber of Deputies.

In 1852, he entered the Argentine consular ser vice and later served as his
country’s ambassador to Russia, Austria, Prussia, and France. He also did
diplomatic work for the papacy.
Calvo’s first scholarly contribution to international law was a translation
of Wheaton into Spanish. The first edition of his own treatise, in Spanish,
was published in 1868. It devoted massive, even obsessive, attention to re-
cent and contemporary state practice, ballooning in size until, by the fift h
edition of 1896, it consisted of six very fat volumes. In the early editions of
the work, Calvo explicitly contrasted what he called “idealist” and the “posi-
tive” approaches to international law, although by the third edition he al-
tered “idealist” to “natural law.” His own approach, he forthrightly as-
serted, was the positive one, speaking “the language of facts” and being
guided throughout, in true scientific spirit, by a “rigid impartiality.”
In general, it may be said that the empirical variant of positivism held the
greatest sway in the Anglo-Saxon world. Its attraction to English-speaking
lawyers is readily explained by the clear similarity of its empirical and in-
ductive approach to the methods of the English common law, which was, in
large part, a law gathered from the practice of courts (in contrast to statu-
tory law). In fact, a particularly distinctive feature of English-speaking in-
ternational lawyers, from the nineteenth century onward, would be the high
regard in which they held judicial decisions (such as Scott’s admiralty-court
judgments) as sources of international law.
Among the English-speaking lawyers in the empirical positivist tradi-
tion may be mentioned several British writers of the late nineteenth and
early twentieth centuries. William Edward Hall was an independent, self-
supporting writer—a “gentleman-scholar” in somewhat outdated parlance—
with a strikingly clear and accessible writing style. John Westlake, from
Cornwall, was a professor of international law at Cambridge University in
the late nineteenth and early twentieth centuries, and the foremost British
scholar of his time. Thomas J. Lawrence, a British lawyer, worked on both
sides of the Atlantic, teaching for a time at the University of Chicago in the
United States and at the University of Bristol in England.
The empirical variant of positivism attracted some support among French-
speaking writers, too. An example is the first major textbook on the subject,
by Théophile Funck-Brentano and Albert Sorel. Funck-Brentano, a native
of Luxembourg, was a professor at the École libre des sciences politiques in

Paris, with sociology as his principal field. Sorel did diplomatic work at the
French Foreign Office for some six years before becoming a professor, like
his coauthor, at the École libre des sciences politiques. His academic work
was primarily in the field of diplomatic history. He was also a poet and nov-
elist, whose literary polish won him election to the venerable Académie
française. Their treatise was published in 1877. Another notable figure was
Alphonse Rivier. Originally from Lausanne in Switzerland, he was educated
in Germany and became a professor first at the University of Berne and then
at the University of Brussels.
The single most forthright presentation of the empirical version of posi-
tivism came from a German who transplanted himself to Britain, Lassa Op-
penheim. Originally from the vicinity of Frankfurt, he taught at the Univer-
sities of Freiberg and Basel in Switzerland—though in criminal law rather
than international law. He moved to Britain in 1895, apparently for health
reasons, becoming a British national five years later. He shifted his interest to
international law, which he taught first at the newly founded London School
of Economics and then (from 1908–19) at Cambridge as Westlake’s successor
in the Whewell professorship. His massive work, International Law: A Trea-
tise, first published in 1905–6, became something of an unofficial canonical
summation of international law, at least for British lawyers. In an article
published in the American Journal of International Law in 1908—entitled,
appropriately, “The Science of International Law”—Oppenheim set out what
remains the finest exposition of the empirical approach to positivism.
Of the distinctive features of this variant of positivism, two should be
singled out for special emphasis. First was a powerful focus on custom, in-
stead of treaties, as the major source of international law. Law was seen—as
in all versions of positivism—as a product of will. For partisans of the em-
pirical viewpoint, this meant the collective will of the international commu-
nity at large. Oppenheim, for example, flatly held customary law to be, in
essence, the sole basis of international law. Treaties, of course, are legally
binding on the parties to them, but only in the sense that contracts are bind-
ing on private parties in national law. Underlying the whole of treaty law is
the fundamental customary-law rule that treaties must be observed—pacta
sunt servanda. Customary law, in turn, is to be discerned by the close and
impartial study of the actual practice of states in their everyday relations—
unclouded by moralistic or natural-law sentiments as to what the practice of

states should be.
The second distinctive feature of the empirical variant of positivism was a
focus on sanctions. This arose as a solution to a serious problem that bedev-
iled the empirical positivists: how to distinguish a true rule of customary law
from a mere common practice of states—that is, from mere “usage,” in the
common expression. In principle, there were various possibilities. But the an-
swer that was most commonly (though not unanimously) settled on was that
the presence of a sanction is the hallmark of a rule of law. If a state departs
from a practice that is merely a usage, then it will simply be permitted to go
its own way as it wishes. But if it departs from a rule of law, then it exposes
itself to sanctions from other states—specifically, from any state that suffers
an injury from the breach.
This approach to customary law, it will be observed, was in keeping with
Austin’s emphasis on sanctions as an essential feature of law. It was only
necessary for international lawyers to take a broader and more relaxed view
of what counts as a sanction than Austin had. Austin, it will be recalled, had
insisted that a sanction must be a punishment infl icted by a sovereign upon
its subjects. International lawyers maintained that a sanction can consist of
any kind of negative reaction to a breach of a rule. It could comprise, for
example, a reprisal action, or a rupture of diplomatic relations, or the de-
nunciation of a treaty. At its most extreme, it could be a resort to war. The
important point, though, is that international lawyers recognized that, with
self-help measures as the principal reaction to wrongdoing, the sanctioning
power of international law must be understood to be diff used throughout
the legal system and not concentrated in the hands of a single entity, as Aus-
tin had demanded.
The Common-will Variant

At the core of the common-will variant of positivism was the belief that
rules of international law are the fruit of agreements between states. A rule
of law, according to this theory, is generated by the conjoined wills of two
(or more) states, most obviously in the form of a written treaty. Treaties were
accordingly regarded as the archetypal source of international legal obliga-
tions (instead of custom in the case of the empirical school).
The two most prominent spokesmen of the common-will variant of posi-

tivism were Heinrich Triepel, from Germany, and Dionisio Anzilotti, from
Italy. Triepel was a native of Leipzig. He was not wholly, or even primarily,
an international lawyer but a constitutional lawyer as well. His influence in
international law in Germany, however, was immense. He taught at the Uni-
versities of Leipzig, Tübingen, Kiel, and Berlin. Anzilotti—later saluted as
“that prince of positivism” —became one of the foremost figures in the
entire history of international law. He was from Tuscany and taught law at
the Universities of Florence, Bologna, Palermo, and Rome. He also served as
a legal adviser to the Italian foreign ministry and later became a long-
serving judge on the World Court.
The common-will variant of positivism placed its main emphasis on trea-
ties, but it did not deny the existence of customary law. It merely insisted that
customary law itself, properly understood, consists simply of agreements be-
tween states. The only difference is that customary rules are tacit agreements,
while treaties are written. In other words, there was an insistence that
customary law must be seen as contractual in character, in essentially the
same way that treaties are.
In the common-will version of positivism, there was comparatively little
stress on sanctions. Triepel was very careful to explain that the imposition
of a sanction is a separate issue from the presence of a binding rule of law.
This insistence on a separation of sanction from obligation is not surprising,
given the stress placed on express agreement as the source of legal obliga-
tion. A state that expressly agrees to accept an obligation can reasonably be
expected to carry it out. Therefore, coercive measures to compel perfor-
mance would be expected to play, at most, only a very marginal role.
Two especially distinctive features of this version of positivism should
be carefully noted. The first is the positing of a sharp dichotomy between
two kinds of treaties: a “contract-treaty” (Vertrag in German, or traité-contrat
in French), and a “law-treaty” (Vereinbarung in German, or traité-loi in
French). A contract-treaty, as the name implies, is a mere contract and not a
true law. It is an arrangement between states to achieve some immediate,
specific, material goal. This is a treaty of the kind that Pufendorf had in
mind when he excluded treaties from the realm of true international law.
A law-treaty, in contrast, establishes a general rule of conduct that is in-
tended to remain in force for an indefinite duration. It represents the common
will of the two parties, in the sense that each party is placed under precisely
the same obligation as the other. A contract-treaty, in contrast, is a compro-
mise arrangement, in which the two parties undertake to perform different
tasks in order to achieve the immediate goal sought. For example, one party
agrees to lend money, while the other agrees to borrow and repay. Only in
cases in which the two parties bind themselves to the same rules can there
be said to be a truly common will at work. In a contract-treaty, there is merely
a juxtaposition of individual wills, with each party willing something dif-
ferent from the other.
A law-treaty could therefore be regarded as, in effect, an act of interna-
tional legislation on the part of the contracting parties—though with the
important proviso that this “legislation” must have the actual consent of
each party that is to be obligated by it. As Triepel explained, a law-treaty
(or Vereinbarung) is an “objective law.” An illustration that he gave of the
difference between the two types of treaty was in the area of extradition. An
ad hoc arrangement between two states for the extradition of a specified in-
dividual from the one state to the other would be a contract-treaty. One state
agrees to dispatch the accused person, while the other state agrees to receive
him. But a treaty that provides for extradition of persons generally, accord-
ing to specified criteria, and intended to be in force indefinitely, would be a
law-treaty. The reason is that, over the long run, both parties would send
and both would receive, pursuant to the same set of rules.
This seemingly arcane distinction did carry some practical implications.
Perhaps the most important was with regard to the termination of treaties.
A contract-treaty could (at least arguably) be terminated freely at the will of
either party to it. Since a contract-treaty is only a conjunction of individual
wills, without an overarching common will above, a change of mind by ei-
ther party destroys the very basis of the arrangement. That is not so for a
law-treaty. Once the law is in place, the parties are inescapably bound by it,
just as individual citizens are bound by statutes of their national legislatures.
The only way that a law-treaty can be terminated is by the adoption of a later
law-treaty that supersedes it—precisely in the manner of legislation in domes-
tic law, which remains in force until and unless it is superseded by later legisla-
tion. This means that all parties to the law-treaty must consent to the change.
There is an analogous difference, too, regarding breaches of a treaty. If
a contract-treaty is breached by one of the parties, then the other one has
a right to declare the treaty rescinded. But that is not so for a law-treaty,
which remains in force in the face of a breach and is terminable only by the
joint will of all the parties. Here too, the analogy with legislation is appar-
ent. A breach of a statute by one person (such as the commission of a crimi-
nal offense) does not absolve other persons from obeying the law them-
selves. In other words, the parties to a law-treaty are “locked in” once the
treaty is concluded (i.e., once the rule of law in question is “enacted”), but
parties to a contract-treaty are not.
The second major distinctive feature of the common-will variant of posi-
tivism was its insistence upon a rigid separation between international law
and national law. Triepel was again the leading figure here, with Anzilotti
lending strong support. This belief has been labeled as “dualism” by inter-
national lawyers, for obvious reasons. The rationale behind it was simple.
The two systems of law (national and international) were held to emanate
from quite distinct sources. National law arises from the unilateral will of
a given state, typically articulated in a written constitution or basic law of
some kind. International law, in contrast, arises out of the common will of a
plurality of states, which is both different from and superior to the individ-
ual wills of the contracting states. This distinctiveness of sources is rein-
forced by a difference in the field of application of the two kinds of law. Na-
tional law is directed at the conduct of private parties, while international
law governs the mutual relations between states as such.
An interesting challenge to this dualist picture is a situation in which a
state is prohibited by its national law from doing something that is required
of it by international law. An example would be a treaty that required extra-
dition of any person, regardless of nationality, matched against a constitu-
tional ban on the extradition of nationals to foreign states. When the extra-
dition of a national of the state is sought, a direct conflict between the two
obligations occurs. Which law prevails in such a case? Anzilotti was ready
with an answer to this. He contended that, strictly speaking, the apparent
contradiction is only an illusion. The reason is that, within each of the two
systems—considered independently of one another—there is no contradic-
tion. International law unambiguously requires one outcome, while national
law, equally unambiguously, requires another. There is therefore no clash
between the two systems of law, as such.
It remains the case, though, that the state is in a dilemma. If it adheres to

its constitution, then it must breach its treaty obligation. Conversely, if it
fulfills the treaty obligation, then it must violate the constitution. The gov-
ernment of the state therefore cannot avoid making an agonizing choice
between these two courses of action. Anzilotti’s point, however, is that it is
the state itself that faces this dilemma, not either of the two systems of law.
The legal systems both remain free of ambiguity or contradiction—and res-
olutely independent of one another. The real “solution” to this dilemma,
then, is that governments should be scrupulously vigilant and take the ut-
most care that they do not carelessly incur incompatible obligations. The
situation at hand, in other words, is merely a demonstration of government
negligence, not of any conflict between the two systems of law per se.
To a layperson (and many lawyers, too), this line of reasoning might be
thought to have an aura of artificiality or of “logic chopping.” It must be re-
membered, though, that positivists were, in general, strongly committed to
taking a rigorously scientific, or logical, view of law. As in the natural sci-
ences, conclusions will sometimes emerge that appear startlingly nonintui-
tive to nonlawyers. Then so be it. The task of the modern scientific lawyer is
the relentless pursuit of truth, wherever it might lead, and however strange
the results might appear to be at first glance.
Concerning the common-will version of positivism in general, it may be
objected—and it was—that it is not really properly positivist at all. The rea-
son is that the necessary basis of this system is the underlying principle of
adherence to contracts (pacta sunt servanda). And this core principle, it may
be argued, can only be a principle of natural law. It had been so regarded
since at least the time of Hobbes. It may be contended, therefore, that the
common will merely determines the content of legal obligations, and that it is
the natural-law principle of pacta sunt servanda which actually makes agree-
ments legally binding on the parties.
Triepel accommodated this critique by conceding that international law
rests, ultimately, on a nonpositivist foundation—not on natural law, but
rather on general human psychology. Anzilotti was not willing to make
such a concession. In the early part of his career (prior to a later change of
mind on the subject), he insisted on seeing the common will of states as bind-
ing in its own right, with no need for a nontreaty foundation. He contended
that the general principle of pacta sunt servanda is itself the product of agree-
ment by states, that is, that its status as a fundamental principle of law derives
from its own inherent value and is not conferred by some outside agent.
The Voluntarist Variant

The essence of the voluntarist version of positivism was its central stress
on the will of the state as the source of law. Hence the selection of the label,
from the Latin voluntas, meaning will. By will was meant, in this case, the
will of individual states, autonomously formed. The empirical and the
common-will schools, in contrast, emphasized the collective wills of states,
expressed in customary form in the one case and in treaty form in the
other. Of the three approaches, this one will be the least familiar to modern
observers—at least outside of Germany, where it chiefly flourished.
Some care must be taken to appreciate that what was meant by the will of
a state was the will of the state as such, and not the will of the government or
rulers of that state at any given time. There was therefore a firm insistence
on states as real persons in the eyes of the law. A notable precursor of the
theory of the real personality of the state was Hobbes, who had insisted that
the sovereign as the sole authority who embodied the will of any given state.
More recent, and relevant, was the writing of the eighteenth-century French
literary figure, political writer, and all-around controversialist Jean-Jacques
Rousseau. He advanced the concept of a General Will animating society—a
will that was pointedly regarded as distinct from the individual wills of the
members of the state. “The body politic,” he pronounced, “is . . . a corporate
being possessed of a will.” The true task of the members of society, in
Rousseau’s theory, was not to pursue their own individual self-interests, but
instead to discern the content of the General Will of the society itself and to
promote that.
Similar ideas were advanced by the renowned German philosopher Georg
Friedrich Hegel. Originally from Stuttgart, in the Duchy of Württemberg,
Hegel first studied theology but then taught philosophy, first at the Universi-
ties of Jena and Heidelberg and then, from 1818, at the University of Berlin,
where he achieved wide renown. The relevant part of Hegel’s philosophy, for
present purposes, was the belief that the only way that a person can live the
most fulfilling kind of life is as a member of a political society—with the
clear implication that the society, rather than the individual members of
that society, is the fundamental unit of social life and, more broadly, of the
world historical process.
In the sphere of legal thought, these ideas found their foremost spokes-
man in the Prussian scholar Otto von Gierke, who was a follower of Hegel.
He was a legal historian, not an international lawyer. But he made a major
contribution to the voluntarist variant of positivist thought by firmly insist-
ing, in the spirit of Rousseau, on the real personality of the state. This notion
became one of the key tenets of “neo-Hegelian” legal thought, which flour-
ished, chiefly in Germany, in the late nineteenth century.
Neo-Hegelianism was basically a combination of the philosophy of Hegel
with the insights of the historical school of law, which was another of the
major innovations of the nineteenth century. Its principal champion was the
German lawyer Friedrich Carl von Savigny, a Roman-law scholar who taught
at the University of Berlin—incidentally overlapping with Hegel. At the
core of the historical school was the idea that each society possesses its own
distinct ethos: its own set of customs, historical experiences, literary and
artistic expression, ways of thinking—and legal tradition, too. On this the-
ory, there can be no single overarching universal standard or ideal type of
law to be applied worldwide. Instead, there is an assortment of distinctive
national traditions, none of which is reducible to any other. It is readily ap-
parent that this belief entails a rejection of natural law, with its cosmopoli-
tan, universalist ethos—thereby making the historical school, in an impor-
tant sense, a staunch ally of positivism.
This pluralistic outlook of the historical school, when combined with the
collectivist ethos of Hegel’s philosophy, resulted in a school of thought that
exalted the sovereignty of individual states to previously unknown heights.
This neo-Hegelian outlook was decidedly inward-looking, insisting on each
state as the sole judge of its own interests and goals. Each state was regarded
as being embarked on a mission of fulfilling its own unique destiny, deter-
mined by its own unique social, economic, religious, and historical makeup.
The task of the members of the society was to devote themselves to the fur-
thering of that great collective mission. In retrospect, it is all too easy to see
in neo-Hegelianism some worrying premonitions of fascism.
So high a value did the neo-Hegelian writers place on state sovereignty
that they insisted that what was commonly referred to as “international law”
was, in reality, merely the sovereign state’s own national law applied to the
area of foreign relations—often called “external state law” (Das äussere Sta-
atsrecht), on the precedent of Hegel himself. This reflected the essence of
the voluntarist position: that the individual sovereigns of each state are the
sole authorities who can make or accept law for that state, and that no exter-
nal agency can impose legal obligations on a state against its will. It is not
difficult to see that this approach comes extremely close to denying the pos-
sibility of international law altogether.
It may be noted that this voluntarist theory entails the rejection of the
dualist outlook of the common-will school. (In general, the voluntarists
were scornful opponents of the common-will adherents.) According to the
voluntarists, the difference in subject matter between domestic law and in-
ternational law is merely a superficial one. Fundamentally, to the volunta-
rists, all law is the product of a single source: the will of single, individual
states. Consequently, there can be no fundamental difference between na-
tional and international law.
A leading early figure of the voluntarist persuasion was Adolf Lasson. He
came from a Jewish family (named Lazarussohn) in Mecklenburg-Strelitz
but converted to Christianity and altered his surname. His university stud-
ies, at the University of Berlin, included philosophy and classical philology
as well as law. His teaching, too, was wide-ranging, including philosophy and
German literature. Expertise in the history of religion led to a major study of
the fourteenth-century German mystical figure Meister Eckhart—an inter-
est that accurately reflected a strongly antirationalist philosophical outlook
on Lasson’s part.
Inspired by the German victories of the 1866 war against Austria, Lasson
published Princip und Zukunft des Völkerrechts (Principle and Future of In-
ternational Law) in 1871, the leading text of neo-Hegeliansim. In it, he denied
the existence of an international community in any meaningful sense. Inter-
national law, he maintained, can have no greater ambition than the adjust-
ment and coordination of the autonomous wills of the various individual
states. To the extent that states happen to share certain common objectives,
rules can readily be devised to further those goals, to introduce a measure of
order and predictability into the process. But international law, he con-
tended, cannot dictate conduct to a state contrary to that state’s will. “The
state,” he asserted, “can . . . never submit to a legal order, nor, in fact, to any
will outside of itself. The state that prevails between states is therefore a
completely lawless one.”
Another pioneering figure in the voluntarist school of thought was a Bal-
tic German named Carl Bergbohm. As a native of Riga in Latvia, from a
merchant family, he was a subject of the Russian Empire. He was educated at
the University of Dorpat (or Tartu), in Estonia, where he became an associ-
ate professor. Of all of the nineteenth-century positivists, he was probably
the most forceful and dogmatic in his hostility to natural law. He could
see—and denounce—natural-law tendencies in even some of the unlikeliest
writers, including Heffter and even Austin himself. As a dogged controver-
sialist, he made a number of enemies. But he made an early impression in
the field of international law, when his master’s dissertation was published
in 1877 as Staatsverträge und Gesetze als Quellen des Völkerrechts (State Trea-
ties and Laws as Sources of International Law). This book strongly pressed
the thesis of state will as the basis of international law—with that will ex-
pressed most prominently in the form of treaties. Consistently with this
stance, he regarded multilateral treaties as the principal means for develop-
ing a body of general international law—though even that general law must
be limited in its application to states that are actually parties to the treaties
in question.
Later in his career, in 1895, Bergbohm moved to the University of Bonn,
which became a bastion of neo-Hegelianism. Its leading figure was Philipp
Zorn. Originally from Bavaria, and the son of a pastor, he taught law at the
Universities of Bern and Königsberg, before moving to Bonn in 1900. Zorn
had admirers in high places, becoming a legal adviser to German Kaiser
William II, as well as tutor to the crown prince in the subjects of constitu-
tional and canon law. In due course, Zorn was succeeded by his son Albert
as the leading figure in the Bonn School.
The great hope of the neo-Hegelians, though, in the early twentieth
century was an energetic and ambitious German scholar named Erich
Kaufmann. In 1912, he became a professor of law at the University of Kiel.
Much would be heard of him, in various voices, over the coming years. But in
his earliest phase, he was “the most uncompromising of the Hegelians.” He
was a disciple of Gierke, to whom he dedicated his first major academic
work in 1911, on the subject of the right of states to repudiate treaties when
they ceased to serve the function originally intended by their parties.
In time, a somewhat more moderate form of voluntarism was advanced,

which was able to accommodate international law more readily than doctri-
naire neo-Hegelianism. The leading figure in this development was Georg
Jellinek. Originally from Austria, he was the son of a famous preacher in
Vienna’s Jewish community. At the University of Vienna, he studied phi-
losophy and history of art along with law and then, in 1879, became a pro-
fessor of law at that institution. He moved to the University of Basel in 1889
and to Heidelberg two years later, where he taught international law, along
with public law generally, for the remainder of his career. Jellinek, inciden-
tally, had a brother who was a prominent figure in the nascent German au-
tomobile industry—and who, in 1901, arranged to have a German auto
model named after his daughter Mercedès.
Mercedès’s uncle achieved a different form of renown (not entailing status
as a household name) by devising a juridical model of “auto”—in the form,
that is, of a theory known as “autolimitation.” As the name implies, the basic
idea was that state sovereignty could be limited by self-imposed constraints
even if no external authority existed that could restrict it. The idea of auto-
limitation grew out of the philosophy of Kant, for whom voluntary adher-
ence to rules of law or ethics was seen as the highest form of moral con-
duct. Acting morally because one is compelled to do so by some superior
authority, under threat of punishment, represents, from this perspective,
merely the appearance of morality and not its true essence, which is the spon-
taneous or self-directed doing of good. Application of this line of reasoning in
the sphere of politics (as opposed to personal ethics) led to the concept known
(in German) as the Rechtsstaat (law state). This refers to a state that elects, of
its own free will, to operate according to the rule of law. The term was popu-
larized in the framework of constitutional law by a German scholar named
Robert von Mohl. It was also supported by the prominent Roman-law
scholar and legal philosopher Rudolf von Jhering.
The Rechtsstaat meant a state that governs by means of the rule of law,
and not by mere momentary whim. Strictly speaking, a sovereign could gov-
ern by mere whim, since there is no external agent to constrain it from so
doing. But that would involve the state’s acting inconsistently with its own
inherent nature—which is to act methodically and rationally, rather than
arbitrarily and capriciously. The state, then, is “compelled” (so to speak) to
act according to law—compelled, however, not by the commands of an ex-
ternal authority but rather by its own intrinsic nature. There are legal limita-
tions, then, on state action; but they are self-imposed.
The autolimitation concept was potentially a very fertile one. It could ex-
plain, for example, the key principle of pacta sunt servanda—and thereby
account for the whole of treaty law. States appreciate the value of stability in
their relations with one another, and each state readily perceives, on its own,
that a general rule requiring adherence to treaties is to its own real advan-
tage. In other words, each state independently adopts the principle of pacta
sunt servanda as a guiding rule for itself.
The voluntarist version of positivism, and the autolimitation thesis spe-
cifically, came to be associated with neo-Kantian modes of thought. The es-
sence of the neo-Kantian picture of international law was Kant’s opinion
that the essential task of law is to coordinate the independent wills of the
actors in a system, with a view to maximizing both individual freedom of
action and due respect for the rights of fellow actors, in some kind of combi-
nation. It is an application of Kant’s original conception of a political soci-
ety as “a relationship among free men” who “retain their freedom within the
general union with their fellows.”  The aim of international law is not to
coerce states from, as it were, outside or above, but instead “to preserve and
secure the freedom of each state in itself, along with that of the other . . .
states.” Kant characterized this idea as a vision of a “free federation.”
Kant’s alternative to the Hobbesian world of anarchy and perpetual con-
flict was not to institute a sovereign, but instead to devise a system in which
all of the agents would be left with their freedom—but would exercise that
freedom in a spirit of self-restraint and mutual respect. The neo-Kantian
solution was broadly in this spirit. What it added to Kant’s original analysis
were the concepts of the Rechtsstaat and autolimitation. These were the
means by which the necessary ethos of self-restraint would be infused into
international affairs. The most important value underpinning the system—
and the ultimate source of international order—was a shared ethic of reci-
procity. No state can claim anything for itself that it would refuse to concede
to another.
It is readily apparent that neo-Kantianism is an optimist’s charter, directly
reflecting Kant’s confidence that “a respect for the concept of right” is an in-
herent and ineradicable feature of human beings. The neo-Kantian interna-
tional lawyers held much the same opinion, in the form of their concept of
the Rechtsstaat. Their solution to the challenge of world order was not to in-
stall a global sovereign to bring about order by force of command (Hobbes’s
solution to the anarchy of the primeval state of nature). Instead, it was to
leave each state free to pursue its own policies—while at the same time duly
respecting the rights of other states. The result is a world that is both anarchic
(i.e., having no central authority) and peaceful.
This neo-Kantian perspective, it should be appreciated, is an archetypal
picture of an emergent system of order—that is, of a system in which there is
no central authority and no external enforcement mechanism. Order emerges
because each actor, on its own, in the rational pursuit of its self-interest, sees
fit to constrain its own behavior in certain ways. Underpinning this system is
a shared ethic of rationality and reciprocity—and also of self-discipline. Nev-
ertheless, it was always conceded by the autolimitation theorists that the in-
dividual states are the primary actors, with international law being second-
ary, in the sense that it is a product of their action. As Jellinek succinctly put
it, “International law exists for states, not states for international law.”
The voluntarist variant of positivism, then, presents a somewhat para-
doxical appearance, at least on first acquaintance. On the one hand, it was
radically state-centered, to the point of being open to the accusation of de-
nying the very existence or possibility of international law. At the same
time, though, it accepted that relations between states are law-governed and
that states do not possess a license to act arbitrarily. The law that governed
interstate relations is not a single framework, applied to the states from the
outside. Instead, it is a sort of confederation or aggregation of separate bodies
of law, each crafted by one individual state for application to itself. Interna-
tional law, then, does exist. But it exists not because of customary practices,
or the conclusion of law treaties, but because the self-drafted legal codes of
the various individual states are sufficiently similar and self-restraining in
nature—with the end result that the rights and interests of other states are
accorded due respect.
It may be observed that this approach to law bears a striking resemblance
to the conclusions of the Axelrod experiment on cooperation. Each actor
in the competition acted entirely selfishly, pursuant to (literally) a self-
devised program. But the result was not chaos or confl ict. It became apparent
that a consistent policy of reciprocity and cooperation paid the highest
rewards—and it emerged from the competition between programs as the
best one to follow, on purely rational, utilitarian grounds. The Axelrod

experiment, to be sure, was conducted in somewhat artificial conditions,
in a framework vastly simpler than that of world affairs in general. But it
does provide some grounds for believing that the neo-Kantian dream of
order emerging from an underlying regime of freedom might not be so
far-fetched.
The Synthesis—Mainstream Positivism
It is evident from the preceding survey that the three versions of positivism
could, with some justice, be regarded as being so distinct from one another
as to make it impossible for them to be placed under a single label without
serious distortion. But there were substantial overlaps between them, to the
point that it proved possible to bring them into a sort of rough harmony by
making some judicious compromises, reinterpretations, or de-emphases of
various aspects of the three systems. The result was an amalgamation—
though not always a very tidy or logical one—of the three variants. For lack
of a generally accepted label, this amalgamation will be referred to as “main-
stream positivism.”
Dualism provides a good illustration of the manner in which a core belief
of one school could be shared by the others without undue difficulty. The
empiricists, most obviously, had little trouble adopting it. The reason was
that the core idea—that national law and international law have different
sources—made intuitive sense to the empiricists, even though that notion
was not a central feature of their approach. The voluntarists, in contrast,
rejected dualism in principle. But even they could agree readily enough with
one of its main implications: that it is not possible for international law to
impose rules into the internal laws of states. Dualism accordingly became
one of the features of mainstream positivism, even though there was not
actually thoroughgoing agreement on its nature and content.
For the most part, the mainstream positivist synthesis comprised elements
of thought that were common property to the three variants, even if the con-
tributions of one or another to particular issues were more conspicuous.
There can be, of course, no question of mainstream positivism being a single
monolithic doctrine. Nor is it possible (or necessary) to give an exhaustive
account of it here. It will suffice to note its most salient features, on which
there was at least a broad consensus.
Pluralism and the Sovereign Equality of States

There is no difficulty in pinpointing the idea that is at the very core of main-
stream positivism: the fundamental principle of the sovereign equality of
states. Mainstream positivism, in other words, was, above all, a state-centered
perspective on international law. Very tightly connected to this core principle
was a thoroughgoing pluralistic ethos. In this respect, positivism’s affinity
with the historical school of law is especially evident. It has been observed
that one of the fundamental beliefs of the historical school was that cultures
possess their own unique, distinctive coherence and that direct compari-
sons, according to some kind of universal scale, are impossible in principle.
Mainstream positivism was in accord with this.
The implication of this belief is easily seen. Each state must necessarily
be the sole judge of what political, economic, social, and legal system to
adopt. The task of international law therefore is not—and cannot be—to
homogenize the world into a single great society. Instead, its task must be
a more modest one: to devise ways in which the fundamentally and in-
eradicably different units of world society can “rub along” with one another
without undue resort to violence. Mainstream positivism, in other words,
readily accepted that the world is, at root, essentially anarchic. International
law must therefore be seen—with all due modesty—as a modus vivendi, or
practical formula for coping with this condition, rather than a nascent world
government.
It will immediately be noted that theories about universal rights of indi-
viduals, exercisable in any and all political and legal systems, are fundamen-
tally foreign to this way of thinking. Just as obviously, the idea of the legal
equality of states comes naturally, since each society—large or small, rich or
poor—has an equal right to determine its own destiny. This principle of
the sovereign equality of states remains to the present day as the founda-
tional principle of international law.
Just as easily arrived at is the principle of nonintervention—which indeed
is hardly more than a mere rephrasing of the concept of sovereign equality
of states. The right of states to determine their own national laws and ways
of life, by definition, precludes others from stepping in uninvited and dictat-

ing policies or forms of government. Positivists tended to hold that this
principle of nonintervention must hold true even in extreme cases, such as
instances of shocking mistreatment of subjects by their rulers. Humanitar-
ians might be in favor of foreign intervention to put a stop to the oppression.
But positivists were disposed to go no further than to hold that, while
humanitarian intervention (as it came to be labeled) might be morally justi-
fiable, it must nonetheless be held—with all of the cold dispassion of the true
scientist—to be legally impermissible.
In some respects, these ideas of the sovereign equality of states and the
principle of nonintervention were nothing new. It has been observed that
Pufendorf articulated them in the seventeenth century, as did Wolff and Vat-
tel in the eighteenth. But with the disappearance of natural law, these ideas
had greater power and more profound implications than before. Pufendorf
and Vattel had asserted the independence of states from one another (i.e., the
principle of nonintervention), but they had insisted states nonetheless always
remained subject to natural law, which was a kind of impersonal sovereign,
reigning over the teeming mass of mutually independent states.
Once that overriding authority of natural law was stripped away, state
sovereignty meant much more than it previously had. It meant that states
were not merely independent of the will or command of their fellow sover-
eigns. It meant that no law at all constrained the acts of states—except, of
course, laws accepted by the states themselves of their own free will. Main-
stream positivism, in short, was a radical charter of freedom for states, to
the point of holding state sovereignty to be more fundamental than the rule
of law itself.
The Fundamental Rights of States

Closely related to the cornerstone concept of the sovereign equality of states
was the notion of fundamental rights of states. Natural law had been, to a
very large extent, a law regarding duties of states rather than rights. This
had been particularly clear in Wolff ’s exposition (followed by Vattel), in
which the duties of states were carefully classified into two categories: obli-
gations of a state to itself and obligations to other states. Natural law did,
however, recognize certain fundamental rights of individuals. Aquinas had
identified two of them: a right of self-preservation and a right to propagate

the human species through marriage and the bearing and rearing of chil-
dren. The nineteenth-century positivists took this basic idea—and the
right of self-preservation most of all—and applied it to states rather than
individuals.
A more immediate model for the positivists was Hobbes, who had
strongly insisted on a fundamental right of security as a core principle of
his natural-law system. In the original state of nature, this right had be-
longed to individuals (there were no states at that time). But after states were
established—and living in a state of nature vis-à-vis one another—it became
easy to think of the principle of self-preservation as being applicable to them.
It was especially easy for lawyers of the voluntarist persuasion to think in this
fashion, with their insistence on the real personality of the state. Just as indi-
viduals could be said to possess fundamental rights, so could states. Other
positivists were less enamored of the idea. Westlake, for example, from the
empiricist camp, did not favor it. Nor did Anzilotti, from the common-will
school. Nevertheless, the idea did achieve general support. Among the em-
piricist group, it had the endorsement of Heffter, Wheaton, Calvo, Hall, and
Oppenheim.
The most obvious of the fundamental rights of states was self-preservation,
or self-defense. This received its first significant airing in international law
in the wake of an incident involving Britain and the United States. In 1837,
in the course of a rebellion in the British colony of Upper Canada, the Brit-
ish authorities mounted a cross-border raid into U.S. territory for the pur-
pose of taking action against a ship named the Caroline, which was widely
known to be involved in taking arms supplies from U.S. territory to the Ca-
nadian insurgents. The Caroline was captured in a daring night raid, taken
from its mooring into the Niagara River, set on fire, and left to drift over the
famous falls (with a loss of several lives). There was an outcry in the United
States over this penetration of the national territory by a foreign armed force,
and several years later, in 1841–42, the governments of the two countries
presented their views of the relevant law.
They were substantially at one on the basic principles. Lord Ashburton,
the British foreign minister, asserted self-defense to be “the first law of our
nature”—with the consequence that, in the face of “a strong overpowering
necessity,” steps could be taken that would not be allowed in the ordinary
course of things—such as mounting an armed incursion into another state’s

territory in time of peace.
The American Secretary of State (and renowned lawyer) Daniel Webster
agreed, although he did insist that the emergency in question had to be ex-
treme. In words that are well known to international lawyers to the present
day, Webster cautioned that there must be “a necessity of self-defence, in-
stant, overwhelming, leaving no choice of means, and no moment delibera-
tion.” The important point for present purposes is the acceptance of the
principle of the overriding importance of the right of self-preservation (or
self-defense)—to the point that, when activated, it trumps the normal, ev-
eryday rights of states. (In the event, the dispute over the Caroline incident
was resolved amicably, largely in Britain’s favor.)
International Law as a Consensual System

One of the most important tenets of mainstream positivism was that inter-
national law is a system more or less consciously created by the states of the
world. First came the states, with their inherent, fundamental rights, and
then, from their initiative, came international law. International law is there-
fore, from this standpoint, a system in which the states of the world—which
are primordially free and independent—voluntarily choose to subject them-
selves to certain legal constraints. The basis of legal obligation, in the positiv-
ist scheme, is therefore the freely given consent of the parties to be bound
(i.e., the states).
The three variants of positivism were in disagreement as to just how this
consent comes about. According to the empirical school, it is expressed
through customary practice by the states collectively. According to the
common-will school, it arises from explicit agreement to the concluding of a
law treaty. According to the voluntarists, it occurs by way of self-restraint, or
autolimitation. The three schools were in agreement, though, on the funda-
mental thesis that consent is the basis of law.
A consensual picture of law directly implies a contractual perspective.
This was obvious enough in the case of written treaties. But for customary
law, too, there was venerable authority. It will be recalled that, in the seven-
teenth and eighteenth centuries, the prevailing view, from Suárez and Gro-
tius onward, was that customary law is, in reality, a tacit agreement between
states, corresponding to treaties, which are express agreements. As such,

customary rules, like treaties, can be binding only on the states that actually
participate in their formation. This contractual interpretation of customary
law was carried through into the nineteenth (and twentieth) centuries, with
relatively little change.
The context in which the contractual view of customary law operated was,
however, very different now. Previously, customary law had been of relatively
little significance, since natural law had been seen as the dominant body of
law—and natural law, by its nature, was binding on all states without regard
to consent. With natural law now discarded by the positivists, international
law must now be, perforce, in its entirety, a “bottom-up” system rather than
a “top-down” one. That is, it is a system made entirely by the states them-
selves, with no element of imposition from above.
This state of affairs had a number of highly important implications. For
one thing, it implied that there is, effectively, no such thing as universal in-
ternational law. In the extreme marginal case, of course, there could theo-
retically be a treaty to which literally every state in the world was a party, or
a customary practice in which every single state participated. But these are
unrealistic scenarios. The reality is that each state must have its own “menu”
of legal obligations to which it is subject, depending on what agreements it
has elected to enter into.
Another implication of this contractual picture was that, in the absence
of agreement between states, a rule of law could not be said to exist. There is,
in other words, an ever-present possibility of gaps—meaning situations to
which no legal rule is applicable. This is in sharp contrast to natural law,
which was essentially a comprehensive, gapless system. It is true that natural
law was sometimes not sufficiently detailed to give a definitive answer to a
specific problem—but that was a matter of the fineness of focus rather than
of the thoroughness of coverage. In principle, natural law always had an an-
swer to any problem. Indeed, how else could the treatises of Grotius and
Wolff have been so numbingly thorough?
At the same time, though, there was nothing that actually prevented in-
ternational law from being comprehensive. There was even a general hope
that, over the course of time, the goal of completeness might be attained.
But the degree of richness and detail of the law necessarily depends, at any
given time, on the extent to which the states have consented to submit to
various rules. The current state of international law was readily acknowl-
edged to be primitive in that the range of agreement between states was, as
yet, fairly limited.
This consensualist thesis had a further immediate consequence: if there
was no rule prohibiting a given course of conduct, then that conduct must be
deemed permissible. This conclusion would later be given the grand-sounding
label of the “principle of freedom”—referring, of course, to the freedom of
states, not of individuals. It may be observed that this “principle of freedom”
is a kind of negative counterpart of the idea of fundamental rights of states.
The fundamental rights thesis posited that certain positive rights belong to
states, as a matter of law. The “principle of freedom” merely holds that, if no
rule of law exists regarding some matter, then states are left free to do as they
like. But both of these notions clearly reflect the centrality of state will and
state sovereignty.
This consensual, or contractual, picture of international law was summed
up by the apt expression that international law must be seen as a law between
states rather than as a law above states. In another common formulation,
positivist international law was stated to be a law of coordination rather than
a law of subordination.
The Nature of International Society

A contractual image of international law, combined with the general plural-
istic ethos of positivism, strongly implies a fragmented world—a congeries
of different contractual groups without any overall framework or guidance.
There might be a high degree of coherence within various self-selected groups.
But it would be difficult to claim that, in the absence of some kind of universal
system (such as natural law), there could be a true international community
comprising all of the states of the world. Wolff could envisage a global “su-
preme state,” but only by invoking natural law to bring it about. Positivists
did not have access to that form of assistance.
There was actually some division among the three variants of positivism
on this point. Furthest removed from any conception of an international
community were the voluntarists, with their emphasis on the independent
wills of individual states. The empiricists were the nearest to accepting some
notion of a genuine international society, since the very idea of customary
law seems to imply at least some kind of community of broadly like-minded

states. On the whole, though, it is safe to say that positivist writers of all
stripes tended to see the independence of states as being more fundamental
than membership in a society of states—and, correspondingly, the rights of
individual states as more fundamental than the demands of good citizenship
that might be imposed by a community. Mainstream positivism, in other
words, strongly tended to be atomistic rather than communitarian in nature.
Even from the voluntarist perspective, however, there was not—or not
necessarily—a need to despair. For there was nothing to prevent the states of
the world from being broadly like-minded and thereby forming themselves
into a de facto community. In other words, it is not logically necessary that a
world of resolutely independent states must be a Hobbesian one, with the
states constantly at one another’s throats. In fact, the neo-Kantian outlook
clearly inclined in the opposite direction—holding that it was positively in
the self-interest of states to be cooperative and to respect the rights of other
states. Even so staunch a neo-Hegelian as Lasson could readily accept that
there was, in practice, much scope for interstate cooperation. Positivists could
therefore be said to be ready enough to accept the fact of interdependence
and cooperation in the real world, even while insisting, as a matter of doc-
trine, on independence and isolation.
Mainstream positivism was not therefore ineluctably committed to a con-
flictual, Hobbesian picture of the world. It depended—as it always had—on
whether some form of the Aristotelian thesis of the natural sociability of
humans was accepted. Positivism was compatible with either position on
that. Those of an optimistic temperament (i.e., accepting natural sociability)
would expect an international world in which conflicts of interest between
states would continually occur, but in which a deep fund of general good
will would be present and fundamental disagreements largely absent. This
was the neo-Kantian frame of mind. A pessimist would expect to see a
Hobbesian world of perpetual bloodshed, aggression, and war. And of course,
there could also be any blend of these rival images.
In this area, too, though, there was much that united the various positiv-
ist approaches, despite their differing perspectives. They were united in pos-
sessing what might be called a minimalist view of international law, as es-
sentially a conflict-resolution mechanism. The function of international law,
from this standpoint, is not the “affirmative” one of building a better world,
but rather the “negative” one of settling or forestalling disputes. In a plural-

istic world of independent states, with no sovereign, it is inevitable that con-
flicts of opinion and interest will occur, even in a system that is broadly har-
monious overall. The task of international law, to a positivist, is to resolve
those disputes by recourse to the rule of law instead of “the dice of Mars.”
This may seem an excessively narrow and limited understanding of the mis-
sion of international law. But it must be admitted that, if it were successfully
carried through, then the benefit to the world would be enormous.
International Law as a Historical—and European—Artifact

From the basic rejection of natural law, combined with the image of interna-
tional law as a consensual system based on the will of states, it was the short-
est of logical steps to conclude that international law can only be understood
as a product of history. Only a study of the actual experiences of states can
reveal what agreements states have actually concluded at any given time.
Here too, the affinity between the positivists and the historical school of law
is clear. Furthermore, it became apparent, when such a close study was duly
carried out, that one particular group of states had been responsible for
agreeing on the corpus of rules known as international law. These were the
countries of Western Europe, together with their overseas offshoots in the
Western Hemisphere.
So long as international law was seen as an offshoot of natural law, it was
difficult—or even impossible—to place the European states in a privileged
position. It will be recalled, in this connection, that Innocent IV, in the thir-
teenth century, had insisted that basic principles of entitlement to exercise
sovereignty were global in their application and not confined to Christian
powers. With the discarding of natural law, however, that broad cosmo-
politan outlook lost its principal support. If international law was strictly a
network of agreements between states, then it naturally followed that only
states that were actually parties to those agreements were bound by interna-
tional law.
But this rigorously logical conclusion was not a comfortable one. For one
thing, it seemed to cut directly against the core positivist principle of the
sovereign equality of states. There could readily enough be equality of states
within any given historical or cultural group (such as the European countries
and their offshoots)—but that was equality of only a limited sort. It will
presently be seen that this issue was no mere theoretical quibble. It would
assume a very great importance as European states entered into relations
with non-European states with increasing frequency.
The Modern View of Customary International Law

Customary law is especially interesting in the way that it reveals how the
various versions of positivism could be amalgamated into a workmanlike—
if not strictly logical—synthesis. It is to be expected that the empirical ver-
sion of positivism would make the leading contribution in this area, since it
was the most strongly committed to custom as the primary (or even exclu-
sive) basis of international law. As noted previously, however, the empirical
theory had some trouble dealing with the question of how to distinguish a
mere usage from a true rule of customary law, if the only evidence available
was the de facto practice of states.
The principal answer given by the empiricists was to look to the presence
or absence of a sanction. But agreement was not universal on this. There was
also an annoying logical difficulty: was a sanction present because the cus-
tomary practice was legally binding, or was the practice binding because
there was a sanction attached to its breach? It would seem that the answer
must be that a sanction is present because of the legally binding character of
the practice. But that led straight back to the problem: what is it that actually
makes a practice legally binding in the first place? On this point, the volun-
tarist variant provided substantial assistance, with its central stress on state
will as a source of law. What is necessary to promote a mere usage into a
true rule of law, in the voluntarist theory, is an intention on the part of a
state that the practice should be legally binding on it.
The combining of these two approaches resulted in a doctrine of custom-
ary international law that is alive to the present day. This is the idea that
customary law has a twofold character: combining the practices of states (i.e.,
an outward, objective, material element) with an inner, will-based compo-
nent, which came to be called opinio juris (literally, “opinion of law”). There
is a division of labor here. The external state practice serves to define and
delimit the content of a given rule. This is a legacy of the empirical approach.
The opinio juris—which is basically the decision by the state to accept the
rule as binding on itself—is the potent force that transmutes a mere pattern
of state practice into a rule of law. As such, opinio juris is a sort of élan vital
or breath of life, giving legal animation to what otherwise would be a mere
chain of events. Alphonse Rivier has been credited with being the first to
clearly articulate this twofold picture of custom (albeit without the use of
the actual expression “opinio juris”).
This splicing together of the empirical and voluntarist stances on custom-
ary law has been the source of some awkwardness ever since the nineteenth
century, reflecting the precariousness of the alliance between the two posi-
tions. For example, there is the question of whether the opinio juris might in
some cases be so clear as to obviate the need for a pattern of state practice.
Or conversely, it may be wondered whether state practice on a given subject
might be so widespread as to allow the opinio juris simply to be presumed to
be present.
There continue to be questions, too, as to the true nature of the opinio ju-
ris and the means by which it is to be discovered. According to the volunta-
rist position, the required opinio juris must be understood to refer to the will
of individual states, unilaterally determined. But the coherence of such a
view is clearly dependent on the belief in the real personality of the state, as
inherited by the voluntarists from the historical school. The empirical ver-
sion of positivism could offer an alternative perspective: seeing opinio juris as
the collective will of the international community at large, that is, as an ex-
pression of what has sometimes been called a common juridical conscious-
ness. This collective will could then be said to be evidenced by the presence of
a sanction in cases of violation—so that the sanction is then clearly seen not
as the actual source of the obligation, but only the evidence of it. It cannot be
said that these questions about the nature of customary law have been satis-
factorily resolved even to the present day. But the basic framework of legal
thought on this subject represents a synthesis between different versions of
nineteenth-century positivism.
On War
In no area was the change wrought by positivism in international law so
striking as in that of warfare. Most importantly, war provides an instruc-
tive illustration of the contractual character of positivist international law at
work. War is an instructive topic, too, in the way that it reveals the variant
positions of the three strands of positivism in action. The empirical version
of positivism had little difficulty, at least in theory, in retaining the principal
tenets of just-war doctrine. With its focus on sanctions as an essential hall-
mark of law, the empirical group could readily keep to the old interpretation
of war as, in effect, a sanction against wrongdoing. It was, of course, a self-
help measure, but to international lawyers, a self-help component was en-
tirely compatible with a sanction.
The voluntarist approach was strikingly different. With its intense focus
on the rights and interests of individual states, it was inclined to see war as
an exercise of state policy. To be sure, it would always be to a state’s own
advantage to obtain its goals as peacefully, and with as little cost, as possible.
But sometimes more drastic measures would be called for. In pursuit of an
interest that was sufficiently vital, the extreme step of resorting to war can
and will be taken. This might seem to be a formula for unbridled aggression,
but the context in which this principle operated must be appreciated. It op-
erated in a world that was law-governed, and in which the freedom of action
of states was limited—even if (as noted earlier) the law and the limitations
were self-generated and self-imposed by the states individually.
It was therefore not envisaged that voluntarism amounted to a license for
mere malicious trampling on the rights of others. Rather, it was contended
that, when a given state’s own rights and interests are being restricted by
another state, then war is permissible, as a last resort, for rectifying the situ-
ation. In a certain respect, then, this picture of war was not so different from
the just war one: war is permissible as a last resort means of putting a stop to
the trespasses of other states. The difference—and it was an important one—
was that war was now seen as permissible not only for the vindication of
legal rights but also in pursuit of bona fide national interests.
War in the mainstream positivist view may be usefully regarded as a form
of dueling—by states, that is, rather than by individuals. This analogy re-
flects the positivist image of war as a contractual arrangement by the parties
to settle a quarrel by force of arms. A state of war can then be regarded as a
situation in which an agreement is in operation between two disputing par-
ties to settle a dispute by force of arms. In the positivist scheme, there
was no rule of international law prohibiting states from making such an
agreement—that is, there was no law against interstate dueling. The “prin-
ciple of freedom” left states free to choose this option of dispute settlement
over others, at will (i.e., at the mutual will of the disputing parties). It is
therefore with good reason that the positivist attitude to war has been char-
acterized as one of laissez-faire. Positivist lawyers simply accepted war as an
inevitable—even if not quite normal—feature of international relations. In
Oppenheim’s terse summation, war was characterized as “but a fact of life
for the occurrence of which international law provides a body of rules.”
The “body of rules” to which Oppenheim referred were the laws governing
the conduct of war—in contrast to rules governing the resort to war, which
were now effectively swept away and replaced by policy considerations.
In general, then, mainstream positivists took a coolly detached view of
war. They could even concede a certain positive value to it, by holding that it
could function as a source of new rights. It could be a means by which the
legal positions of states could be adjusted to prevailing political realities—in
effect, as a way of changing the law. As law reform mechanisms go, it was a
decidedly coarse one. But it must be remembered that international law had
nothing resembling a legislature that could continually make alterations in
the law as called for by changing circumstances. As a result of this, interna-
tional law was necessarily focused on the identification and safeguarding of
existing rights—meaning that it had an innate conservative bias. Without
some kind of mechanism for change, international legal relations risked be-
coming “frozen.” War could function as that mechanism. On this point, the
change from just-war doctrine was drastic. It will be recalled that, in classical
just-war doctrine, just wars had been seen as conservative in character, as a
means for the enforcement of pre-existing rights. A victory in a just war
neither created nor destroyed underlying substantive rights. It merely en-
forced them. This position was discarded by the positivists, who were able to
see war as a progressive force, in the strict sense that it could operate to cre-
ate new rights (and also, of course, to destroy old ones).
It may therefore be concluded that mainstream positivism was somewhat
ambivalent on the subject of war. It certainly did not support pacifism. It
gave states a substantially free rein to elect to settle their quarrels by resort-
ing to arms. It even acknowledged that war had a positive role to play on the
international scene, by adjusting the rights of states to the realities of power
politics. At the same time, war continued to be regarded as a last-ditch resort,
as an exceptional measure, and not as a casual tool of day-to-day interstate
relations. And there was a strong concern to reduce the horrors and suffer-
ing of war by way of rules regulating the conduct of hostilities. In short, and
true to its scientific ethos, mainstream positivism took a somewhat clinical
picture of war, more in the spirit of a doctor discussing disease than of a
blustery conqueror lusting for new territories.
An exception to this characterization may be allowed in the case of the
more extreme partisans of neo-Hegelian thought. Erich Kaufmann was the
most notorious. In his book on treaties in 1911, he made it clear that he had
little regard for the optimistic outlook of the neo-Kantians, with their quest
for freedom and mutual self-respect. Instead, he looked at war as a great
moving force of history. It was the principal means by which a state could
achieve the highest degree of internal social solidarity, shared commitment,
and mutual dedication—qualities that Hegelian thinkers valued so highly.
“[N]ot the community of free willing individuals,” averred Kaufmann, “but
the victorious war is the social ideal.” Such an overt glorification of war
was, however, highly unusual among international lawyers.
The Technocratic Outlook

One final feature of the mainstream positivist synthesis calls for attention:
its interesting combination of dynamism and conservatism. This was made
possible—and indeed inevitable—by the positivists’ scientific and techno-
cratic self-image. Comte’s positive philosophy had been, at least in its incep-
tion, aggressively modernistic, representing a gleeful overthrowing of the
past. International lawyers did not, for the most part, adopt this aspect of
the new thinking. On the contrary, the international-law version of positiv-
ism had a very decidedly conservative cast. This was a legacy, in part, of
positivism’s conscious opposition to natural law, which had become associ-
ated with the political left. But it was also, in part, a function of positivism’s
claim (or ambition) to be a science of law—that is, an objective, neutral,
value-free analysis of what the law actually is and how it is made.
The single foremost sign of this conservatism was positivism’s insistence
on a sharp separation between law and morality, between the “is” and the
“ought.” As conscientious legal scientists, the positivists saw their mission as
the expounding of what the law actually is—with reform measures, and in-
deed policy decisions generally, left in the hands of politicians. This was the
furthest cry from the writing of Vitoria or Grotius, or even Vattel, who had
fully accepted that being an expounder of natural law entailed being a fear-
less critic of those who fell short of its standards.
Positivist lawyers accordingly disclaimed any attempt at foreign policy
making. That was the task of policiticians, not of scientists. The lawyers’ task
was to advise their political masters on the lawfulness or legal implications
of contemplated actions—that is, to render strictly objective, dispassionate
advice on the basis of rules whose content was determined by rigorous
analysis. The point was crisply summed up by an eminent Russian interna-
tional lawyer named Fedor Fedorovich Martens (no relation to the earlier
German Martens): “In a scientific system,” the later Martens flatly averred,
“there is no place for political considerations.” On this point, all three ver-
sions of positivism were in ready agreement.
It has been noted that one of the chief hallmarks of positivism, in all of its
varieties, was its focus on method, that is, on how international law is made.
This was in marked contrast to natural law, which had concentrated virtu-
ally entirely on the substance of law. Natural law had scarcely anything to
say about procedural aspects of law, nor anything in detail about such fea-
tures of everyday life as states or governments. It was, above all else, a sys-
tem of norms, floating in splendid isolation above the chaotic, messy hurly-
burly of everyday life. Moreover, natural law was a static set of norms, never
changing. The challenge facing a natural lawyer, therefore, was to determine
how this static set of norms could be imposed or imprinted onto the teem-
ing richness of quotidian existence.
The positivist outlook was strikingly different. It was fundamentally dy-
namic in character, in the sense that one of its most important missions is to
explain how international law can be changed, so as to meet the demands of
the ever-changing conditions in which it had to operate. The three variants
of positivism, it is observed, gave different answers to this key question. To
the empiricists, international law was made by state practice, which pro-
duced customary law. To the common-will school, it was made by the cre-
ation of law treaties. To the voluntarists, it was made by the coordination of
self-governing units. More fundamental than these disagreements, though,
was the broad consensus that international law is made by the states them-
selves. It is not given to them from on high, for all eternity, in the manner of
rationalist natural law.
On this view of things, there was little (if any) room left for the interna-
tional lawyer as critic, in the manner of Vitoria or Grotius or Vattel. The task
of the lawyer certainly was not to discern the content of natural law, for there
was (to the positivist) no such thing. The substantive content of international
law is to be determined by means of a careful understanding the method by
which it is made. The content of the law is, in essence, whatever it is that the
governments of the world have, de facto, decided that it should be. It is not
the task of lawyers to sit in judgment over government policy-making.
The result of this way of thinking was an apparent paradox. Natural law-
yers were, by temperament, social critics, ever striving to bring power to
heel under the rule of law. At the same time, though, the law to which they
were so devoted was static. It was an unchanging corpus of substantive
rules—applicable, to be sure, in widely varying circumstances, but funda-
mentally unvarying. The nineteenth-century positivists were just the oppo-
site. They were conservatives in the sense that they left governments with a
largely free hand to operate as they wished, without any carping or nagging.
They were nonjudgmental—perhaps to a fault. But their vision of law and
lawmaking was intrinsically dynamic. Constant change was its very es-
sence. In this very particular sense, the positivist lawyers could be called
“progressives.”
There were those who doubted, though, whether constant change, un-
leavened by even a scintilla of bracing criticism, was necessarily a good
thing. Was it not possible that some kinds of change might be bad rather
than good? For the overwhelming part, the positivist lawyers displayed little
inclination to ask questions such as this. They saw great progress all around
them and were conscious that they were playing a part in it, if only at the
humble ministerial level rather than as policy makers.
But some lawyers were keenly aware that the new scientific spirit of the
positivists had brought losses as well as gains, that “progress” has its costs.
One of them was the French lawyer Henry Bonfi ls, the author of the best-
known French treatise on international law of the late nineteenth century.
He complained that positivism “reduces the science [of international law] to
the role of a humble servant of practice” and deplored “the absence of critical
spirit” among his professional peers. Positivist lawyers, in his opinion, were
too subservient to established political authority. As a result, they tended to-
ward partisanship, seeking justifications for institutions or practices that
they favored on other grounds. “Political considerations” and “patriotic in-

terests,” Bonfils believed, “too often direct their judgements.”
There was much truth in Bonfi ls’s lamentation. But he could take some
comfort in the fact that, even when its tide surged highest, positivism did
not have international legal field all to itself. There were dissenters who kept
old dreams alive—and even dreamed some new ones, too.
chapter seven
Dissident Voices
ven at its highest tide, mainstream positivism did not have a monopoly
E over international legal thought. In fact, the nineteenth century was rich
in heterodoxical perspectives on international law—views that, in some
cases, would gain greatly in force during the following century. One of these
dissident schools of thought was the natural-law tradition, a hardy peren-
nial that managed to survive even in the inauspicious climate of positivism.
In addition, three other principal dissident approaches arose in the nine-
teenth century, or at least came into prominence for the first time. These
were liberalism, the nationality school, and solidarism (or the sociological
school, as it sometimes known).
All four of the dissident schools rejected two of the most central tenets of
mainstream state positivism. First, they rebelled against the conservative,
technocratic ethos of positivism—against its insistent focus on what the law
is, to the exclusion of speculation about what it should be. Instead, they were
reformist in outlook, seeking to make international law a vehicle for chang-
ing the world (for the better, of course). In this regard, they were all of an
optimistic temperament. They did not regard international relations as be-
ing inherently conflictual or competitive, and they believed that progress
was possible (or even inevitable). The siren call of a glorious future sounded
vigorously through all three of these new schools.
The second way in which all four of the heterodoxical schools parted
company with positivism was in rejecting its state-centered focus. Natural
lawyers, as in previous periods, emphasized international law as an over-
arching system of norms—a system of rules to which states were subject,
making states the servants and not the creators of law, as they were for the
Dissident Voices 261
positivists. To the liberals, the principal focus was on individuals. The nation-
ality school concentrated on nations or cultural units, instead of on states, as
the fundamental units of international law. And finally, for the solidarists, the
dominant unit was the international community as a whole.
At the same time, though, none of the three new approaches rejected
positivism in its entirety. All of them were compatible with important as-
pects of it. They should therefore be regarded not as full-scale alternatives to
positivism, but instead as shifts in emphasis, as attempts to harness specific
aspects of positivism in the cause of reform. In general, the disputes between
the schools were measured and polite—probably more so than those between
the partisans of the voluntarist and common-will versions of positivism.
Conspicuous public feuds and intemperate denunciations were not, for the
most part, features of international legal debate. International law attracted,
on the whole, a rather genteel crowd—a feature that remains true today to a
surprising extent.
The Tenacity of Natural Law
For all of the forcefulness of their attacks, the positivists of the nineteenth
century never succeeded in wholly eradicating natural law, even if they did
keep it on a tight leash. It should be recalled that positivism did not, strictly
speaking, require the denial of the existence of natural law—it merely de-
nied it the status of law in the true sense. Even the staunchest positivist
could therefore accept natural law as a possible source of inspiration in the
making of international law. A second role that was conceded to natural
law, even by positivist writers, was as the law controlling relations between
advanced European states and the “savage” states of the far parts of the
world—a matter that will be considered in due course.
In addition, even the most rigorously scientific of positivists could hardly
claim their own system to be wholly value-free. It was very difficult—and
perhaps impossible—to imagine even a mainstream positivist system being
viable without at least some kind of shared value system underpinning it.
The shared values, to be sure, might be extremely few in number, as they were
for Hobbes. But doing away with them altogether was no easy matter. In this
connection, it will be recalled that the neo-Kantian version of positivism was
very crucially based on an intrinsic sense of law or rightness, combined with

the important principle of reciprocity.
It was therefore possible for positivists to acknowledge the existence of
what was sometimes called a “common juridical conscience.” The German
lawyer Franz von Liszt was a believer in this—even as he rejected natural
law as a source of law. In a similar vein, the French writer Antoine Pillet, a
professor at the University of Grenoble, writing in the 1890s, spoke of what
he called “the common law of humanity,” which he held to be distinct from
international law. It existed, in his opinion, “outside of and above interna-
tional society and the law to which it corresponds.”  Some were willing to
give the common juridical conscience a somewhat greater role. One of these
was the Belgian lawyer Ernest Nys, who taught at the University of Brussels
in the late nineteenth and early twentieth centuries. He went so far as to
hold the common juridical conscience to be the sole primary source of inter-
national law, with custom and treaties being only secondary sources.
Such ideas, however, should not be thought of as endorsements of natu-
ral law in its full-bodied form—that is, as an elaborately detailed, compre-
hensive, systematic body of substantive rules. Instead, the notion of the
common juridical conscience merely referred, rather loosely, to certain com-
monsense values, or basic conceptions of justice. These could be admitted
to be uniformly held throughout the world without doing undue violence
to positivist doctrine.
There were, however, some international lawyers who went beyond these
general considerations to a more or less forthright endorsement of natural
law—at least as a matter of general principle, even if not in the baroque ra-
tionalist manner of Grotius or Wolff. For example, a number of writers car-
ried the classical dualistic Grotian outlook on into the nineteenth century,
paying little or no heed to the new ways of the positivists. Some writers were
more adventuresome, taking natural law itself in somewhat different direc-
tions than before. In this category were two major figures: Johann Kaspar
Bluntschli and James Lorimer.
The Grotian Tradition Continued

There were a number of writers who continued in the dualistic Grotian vein
of the seventeenth and eighteenth centuries, seeing international law as an
alliance between natural and positive law. The spirit of Vattel and G. F. von
Martens did not die out. An American writer, Henry W. Halleck, for exam-
ple, wrote in this vein in 1861, clearly strongly under the influence of Vattel.
In Britain, Henry Maine, a prominent figure in the historical school, de-
scribed international law, in 1888, using words that could have come from
Vattel. “There is both a natural and a positive law of nations,” he explained,
with positive law being merely “[t]he most useful and practical part.” And
even positive law, he contended, derives “much of its force and dignity from
the . . . principles of right reason.” In France, Laurent-Basile Hautefeuille
was also a notable writer in this tradition. An admiralty lawyer, he wrote an
important treatise on the law of neutrality in 1848. In this work, he carefully
distinguished, every step of the way, between three kinds of law: natural law
(which he called “primitive law”), customary law, and conventional (or treaty)
law.
Also in this tradition was Andrés Bello, who was the first Latin American
to write on international law. He was a man of many facets—poet, linguist,
lawyer, and diplomat. A native of the Viceroyalty of New Granada (in present-
day Venezuela) in the late eighteenth century, he acted as a tutor early in his
career to the young Simon Bolívar and later became acquainted with the re-
nowned scientist, explorer, and philosopher Alexander von Humboldt (even
accompanying him on an unsuccessful attempt to climb Mount Ávila in
Venezuela). During the Latin American wars of independence, Bello served
the insurgent cause as a diplomat, spending nineteen years in London (1810–
29), first in the ser vice of Colombia and then of Chile as well—frequently
with his salary in serious arrears. But the time was well spent. He befriended
the revolutionary figures Francisco de Miranda and José de San Martin and
also became friends with the British utilitarian thinkers Jeremy Bentham
and James Mill.
Bello’s Principios de derecho de gentes (Principles of the Law of Nations)
was published in 1832, prior to the work of Wheaton in the United States
(who held Bello in high regard). Two further editions were published up to
1864 (with a slight change of title to Principios de derecho internacional, or
Principles of International Law). He wrote squarely in the Grotian tradition,
presenting international law as a dual system, combining natural law with
positive law. He explained the distinction between them as being that natu-
ral law lacked any coercive power and spoke only to the conscience, whereas
positive law was enforceable law. He was a strong believer in natural law
while at the same time conceding that, in practical terms, positive law had
the greater importance.
A German lawyer named Carl von Kaltenborn was another figure of this
persuasion. He wrote a book in 1848 on the forerunners of Grotius. In his
rejection of the old rationalistic, hypothetico-deductive style of natural law,
he showed clear evidence of positivist tendencies. But he regarded state
practice merely as data—with the true task of the legal scientist being to
distill theoretical general rules from this body of evidence. In other words,
he favored using an inductive method to arrive at a comprehensive, coherent
system that would be of eternal and objective validity. Like G. F. von Mar-
tens, he may be described as being positivist in his method, but without
adopting positivism as a philosophy.
Similar in outlook—and much more influential than Kaltenborn—was the
French lawyer Henry Bonfi ls, who was a professor of law at the University of
Toulouse. His Manuel de droit international public (Manual of Public Inter-
national Law), first published in 1894, became the most prominent exposi-
tion of the subject in the French-speaking world. In it, he expressly endorsed
Grotius’s twofold division of law. The natural-law part of law, he explained,
received a variety of different labels—primitive, necessary, absolute, natural,
rational, theoretical, and so forth. But the basic idea was that this body was a
source of rights and duties in its own right, apart from positive law. Bonfi ls
identified a number of principles that he attributed to this nonpositive source:
the right of commercial liberty of states, the law of neutrality, the principle of
nonintervention, immunities of states for official acts, the right to conclude
treaties, and the principle of pacta sunt servanda. All this was in contrast to
positive law, which he characterized as “contingent, variable, secondary.”
Squarely in the spirit of Grotius and Vattel, he held this part of international
law to be of a lesser status than natural law, as it served merely to regulate
matters that natural law theoretically prohibited. He explicitly referred to his
outlook as falling into “the eclectic school” of international law.
Bluntschli and Lorimer

If natural law continued to survive the blows of the positivists and to be ac-
knowledged by writers throughout the century, a few figures made creative
contributions to the subject in the nineteenth century. The two principal

ones were Johann Kaspar Bluntschli (from Switzerland and Germany) and
James Lorimer (from Britain).
Bluntschli was a protean figure. Originally Swiss, he studied in Germany,
where his primary allegiance was to the historical school of law, with Savi-
gny himself as one of his teachers. He took a teaching position at the Univer-
sity of Zürich but was forced out of it because of political activities. He went
to Munich, where he taught constitutional law. In 1861, he moved to the
University of Heidelberg, where he remained for the rest of his career. A
private law code that he drafted for the city of Zürich in the 1850s became
the basis for the Swiss Civil Code. For the major part of his career, he was a
political theorist and constitutional-law specialist. His text on the General
Theory of the State (1851) won a place on the syllabus at Oxford University
and was influential in the United States as well. Tracts on theology and psy-
chology flowed from his fertile pen. Not until he was in his late fifties did he
turn his diligent attention to international law, producing a text in the form
of a codification of the subject, published in 1868.
Natural law, to Bluntschli, was the foundation of international law. But
this was not natural law as it been expounded in the Grotian tradition.
Rather, it was natural law of an organicist, rather than a rationalist, variety—
more akin to the ancient stoics than to the medieval Aristotelians and their
successors. Bluntschli regarded natural law in psychological terms, as some-
thing hardwired into the psyches of every individual human being—
returning, in short, to the idea of natural law as being “written in the hearts
of men” (instead of being extracted from the treatises of pedants). Law, pos-
ited Bluntschli, “rests more upon human nature [in general] than upon the
peculiarities of Peoples” as political collectivities. In the very opening pas-
sages of his international law treatise, he asserted that “international law has
a solid base and indestructible roots in human nature.”
In deference to the prevailing positivist outlook, Bluntschli conceded that
“[c]ertainly the free will of man is able to effect and alter in many ways what
is right and just.” But he immediately went on to surmise that
the greatest part of this [i.e., of human ideas of justice and moral right]
has been fi xed from everlasting by the order of the world and the
nature of men and circumstances, and is altogether independent of the
will of men. Most Right is not invented, but discovered and recognised,
found not formed.
Bluntschli then proceeded to stress that the concept of right (droit) predated
that of law (loi). International law, he went on to emphasize, is not merely a
balancing of momentary interests. It is “a law of necessary principles, based
on the nature of the relations between peoples and on the duties of civilised
nations vis-à-vis humanity at large.” Solidly in the spirit of natural-law
writing, he distinguished rules that are “simply articles of a treaty” from
rules that “are laws by their essence.”
Also in the classical spirit of natural law was Bluntschli’s assertion that
international law applies over literally the entire globe, rather than being a
creation of European civilization specifically. He explicitly rejected the posi-
tivist thesis that law is a product of the free will of states, insisting instead—
borrowing the terminology of Wolff—that it is a “necessary law” that binds
states by its own intrinsic force and merit. Rules of natural law are binding
even on states which explicitly repudiate them.
In short, Bluntschli rejected the general positivist theory of international
law as being essentially contractual in character. He conceded that there may
be gaps left—or apparently left—between various specific rules. But they are
only apparent and not real, for the very purpose of the science of law is to fill
any such gaps by the application of general principles—derived, of course,
from natural law. In fact, this question about the possibility of gaps in the
law can be regarded as virtually a defining feature of the opposition between
positivism and natural law in the nineteenth century (and beyond). Positiv-
ists, with their contractual image of international law, naturally concede the
existence of empty places in the law in areas where agreement had not been
reached by the states. Natural lawyers, in contrast, tend to hold interna-
tional law to be a comprehensive, gapless system, with any apparent holes to
be filled (as Bluntschli suggested) by processes such as reasoning by analogy
or the application of abstract general principles.
States were certainly conceded, in Bluntschli’s opinion, to be free to make
various customary arrangements as they wished—but subject to the over-
riding consideration that these arrangements may not be contrary to natu-
ral law. Treaties can be rendered invalid by natural law, as he explained in
some detail. He specified four types of treaty that would be invalid on the
ground of infringement of the rights of humanity: those promoting or pro-

tecting slavery, those refusing rights to foreigners, those infringing the free-
dom of the seas, and those persecuting certain religions. Two other kinds of
treaty would be void for violation of international (i.e., natural) law: those
providing for world domination by a single power, and those directed to-
ward the violent suppression of another state. Bluntschli, in other words,
gave the first forthright account of what later international lawyers would
refer to as “peremptory norms” of international law—norms that, because of
their intrinsic importance, have a higher status than ordinary customary or
treaty law.
The second major spokesman for natural law was James Lorimer, from
Scotland, a close contemporary of Bluntshli’s. He studied first at the Uni-
versity of Edinburgh and then in continental Europe, where his chief inter-
est was in the natural sciences. He later remarked that he learned more law
from his chemistry teacher than from his law professors. He practiced law
for a time in Scotland (without success) and then gravitated into academic
life, becoming professor of law at the University of Edinburgh in Scotland
and taking the chair of the law of nature and nations in 1862.
Lorimer was an heir—perhaps the last one—to the Scottish tradition of
“commonsense” philosophy of the eighteenth century. A devoutly religious
man, he dutifully placed God at the pinnacle of international law. He re-
sembled Bluntschli—whom he greatly admired—in being more of the or-
ganicist turn of mind than the rationalist. Appropriately, he was an admirer of
the ancient stoics. Toward the historical school, he formed a special antipa-
thy. In his Institutes of International Law, published in 1883, he announced
that his goal was “to place International Law on deeper and more stable foun-
dations than . . . convention” (i.e., the consent of states). More specifically, he
sought explicitly to base international law on “a science of nature.”
Unlike Bluntschli, Lorimer was a forthright critic of positivism, deriding
it as “objectless groping amongst lifeless facts and life-destroying fictions.”
In short, he scornfully asserted, “the positivist pistol has no lead in it.” He
bluntly asserted positive law to be “merely declaratory”—meaning that it is
merely a summation of law, and not legally binding in its own right. It was
also of relatively recent vintage. Natural law, in contrast, has existed between
nations since the very dawn of history itself. Positivism was disdained as
mere “empirical jurisprudence,” capable of producing only “a haphazard
system of international law.” Natural law, on the other hand, is rooted in

“the permanent laws of human nature.” Far from being ashamed of specu-
lation as a method of legal science, he lamented that lawyers did too little
speculating rather than too much. He candidly revealed his allegiance to the
rationalist tradition of natural law by holding the creation of a systematic
body of law to be “a labour of the closet.”
In distancing himself so pointedly from positivism, Lorimer stressed two
important tenets of his own thought: first, an “ethical element” in interna-
tional law and second, the importance of the interdependence of the states of
the world with one another, instead of their independence. Regarding the
ethical element, his perspective was, to put it mildly, a broad one. In a spirit
distinctly reminiscent of the ancient stoics, he voiced the belief “that the
universe, as a whole, is an ethical as well as a physical cosmos.”
It was on the question of interdependence that Lorimer’s distinctiveness
was most in evidence. He identified two extreme schools of thought on this
subject. One of them was labeled the “national” school, also termed the “nega-
tive” or “patriotic.” It stressed the independence and isolation of states—the
vision held by mainstream state positivists. Lorimer bluntly condemned this
as a “lawless doctrine.” At the opposite extreme was the position that he
termed “cosmopolitan,” or alternatively “philanthropic.” This extreme cosmo-
politan viewpoint regarded states as altogether absent from the picture, with
the whole of humanity functioning as a single society. Lorimer announced
his task to be the steering of a middle way between these two. He would ac-
cept the existence and autonomy of states—but, crucially, “not apart from,
but in and through the recognition of international dependence.” Lorimer’s
middle way was clearly more compatible with the cosmopolitan position
than with its opposite.
Lorimer was overtly critical of voluntarism for attempting to build interna-
tional law on the excessively unstable foundation of the concordant wills of
states. He had a low opinion of treaty law generally, regarding it as “a mere
makeshift.”  Treaty-based systems—and voluntarist systems in general—
have the fatal weakness of requiring unanimity among the parties. “The mo-
ment that one of the parties changes its mind,” he objected, “the unanimity
ceases, and the basis on which the treaty rested is cut away.”  He had a much
higher opinion of customary law—which he regarded, like the historical
school, as being essentially legislative rather than contractual in character. He
held custom to be superior to treaties in being more flexible. Custom, in his

opinion, is “an intermediate stage through which opinions or conceptions
ought almost always to pass, before assuming the form of enacted law.” 
Of all the major international-law writers of the nineteenth century,
Lorimer stood most conspicuously apart. His Institutes reads like no other
legal treatise in its general organization and the extent of its philosophical
explorations. That his book exercised little influence will hardly come as a
surprise. At the same time, though, he was not isolated or shunned by other
lawyers, but, on the contrary, was an active participant in professional ac-
tivities. His acute analytical mind was much respected, even if the particu-
lar path that he blazed attracted no fellow explorers.
Liberalism
Of the heterodoxical approaches to international law, liberalism was the least

well expounded in the nineteenth century. No single treatise set it out in a
systematic fashion, nor was any single professional lawyer strongly identified
with it. The reason is that it was not (and never has been) a doctrine of inter-
national law per se, but rather a general philosophy of economics and politics
with important implications for international law. Only in the twentieth
century would liberalism blossom into something like a school of interna-
tional law. But its foundations were solidly laid during the present period.
Liberalism had—and retains to this day—strong affi nities with natural
law, in that it was based on a set of very general propositions about human
society. Society was seen as fundamentally harmonious. Th is harmony
arose, on the liberal view, not out of a natural sociability of individual per-
sons. Instead, it arose out of a belief that, in a society in which the powers of
government were strictly limited, and in which freedom of individuals was
correspondingly large, an “invisible hand” (in the famous phrase of Adam
Smith) would guide those individuals into the most suitable, and produc-
tive, areas of activity—ultimately to the maximum benefit of the society at
large. This picture was a sort of social counterpart of the Newtonian con-
ception of celestial mechanics.
Central to this liberal vision—and indeed at the very definitional heart of
it—was a belief in, and commitment to, the empowerment of individuals at
the expense of governments. In the legal sphere in general, this empower-

ment took three principal forms. First was economic freedom, in the form of
free trade in goods, as well as free movement of persons and capital. Second
was political freedom, in the sense of holding governments to account for
the wishes of the governed—insisting, that is, that governments exist to
serve individuals, not vice versa. Third was the protection of the liberties of
individuals against the intrusions and abuses of governments.
Freedom of Trade
Liberalism began to be placed onto a systematic, scientific footing in the
middle of the eighteenth century by the French physiocrats. It has been
observed that their beliefs (as well as their label) were rooted in natural law.
They harbored a belief in a deep natural rhythm or equilibrium in the social
and economic worlds that—if allowed to operate unimpeded—would in-
eluctably bring about, by its own force, the maximum possible benefit for
humankind at large. It was no accident that their leader, François Quesnay,
was a physician. His major contribution to the science of economics was the
famous tableau économique, which purported to trace out the flows of agri-
cultural goods throughout the economy, in the manner of a physician trac-
ing the paths of fluids within the human body—thereby demonstrating the
need to keep those passages uninterrupted, for the continued good health of
what could be called, truly, the “body politic.”
Consequently, there is an urgent need to remove the myriad governmen-
tal distortions and interferences that prevent the natural mechanism from
working smoothly. Highest on the physiocratic target list were the various
programs under the general label of mercantilism—the elaborate network of
monopolies, subsidies, taxes, quotas, employment restrictions, and sumptu-
ary laws—that had the effect of diverting the natural flows and rhythms of
the economy into artificial channels. “Laissez faire, laissez passer,” a phrase
coined by A. R. J. Turgot in 1757, became their most famous motto. (Like all
good propagandists, the physiocrats were very prolific in the production of
mottoes.) This clarion call applied most directly to the dismantling of barri-
ers to the free flow of grain between the provinces of France, with the im-
mediate purpose of allowing supplies to flow freely from places of surplus to
places of shortage so as to avert famines.
It was primarily British political economists who took up the physiocratic

ideas and applied them more widely. The leading figures were both Scots:
David Hume and Adam Smith (who were close personal friends). They were
both of the natural-law persuasion, in the sense that they sought to articu-
late the general principles along which the social world operated, in the way
that Newton had done for the celestial realm. Smith’s famous treatise on The
Wealth of Nations (1776) became the fundamental text of economic liberal-
ism. This was followed up in the early nineteenth century by the writing of
David Ricardo, who expounded the principle of comparative advantage,
which was the conceptual heart of the liberal theory of free trade.
Crucial to the effective operation of a liberal economic system is the liberty
of individuals to respond to the demands of free markets. A liberal economic
regime is therefore a radically decentralized system of production, relying on
the discipline of markets rather than on the imperious commands of pomp-
ous bureaucrats or feudal magnates. Some positive actions by governments
are admittedly necessary, such as rigorous enforcement of private contracts
and the provision of public security. The major point, though, is that the role
of government is to protect and serve, not to command or manipulate. Gov-
ernment’s most urgent task is simply to refrain from interfering with and
disrupting the system. This combined focus on individual freedom and gov-
ernmental self-restraint was a principal hallmark of liberalism.
One more general point about liberalism bears on its relevance to inter-
national law: its basically pacifistic character. It is true that it was based on
competition between rival producers. In that sense, competitiveness was in
its very marrow. But this competitiveness was peaceful, not violent, and it
was between private parties, not states. Peaceful economic competition was
seen not only as far preferable to the military variety. It was also regarded as
a means of reducing the very possibility of conflict because it would ensure
that the resources of the world were shared out, more or less equitably, with-
out bloodshed or conquest. The point was pithily summed up by the French
economic economist and publicist Frédéric Bastiat: “When goods do not cross
frontiers,” he warned, “armies will.” 
Some liberals went so far as to maintain that the very process of interna-
tional relations between governments was an intrinsically corrupting pro-
cess, producing national rivalries and jealousies at best, and outright war at
worst. It was in this spirit that President George Washington of the United
States sternly warned his fellow nationals that, while extending commercial
ties with foreign countries was a sound policy, they should have “as little po-
litical connection as possible” with foreign states. On this point, too, Bas-
tiat was characteristically outspoken. “Our code is this,” he declared: “ ‘The
least possible contact between governments, the most contact between peo-
ples.’ Why? Because contact between governments compromises peace,
whereas contact between peoples guarantees it.”  With trade so highly
praised as the key to world peace, it is perhaps not surprising to find Richard
Cobden, one of the most dedicated British economic liberals of the century,
grandly proclaiming that “free trade is the international law of God.” 
If this liberal thesis was taken to its utmost logical extreme, it would even
lead to the outright obsolescence of the nation-state and the advent of a sin-
gle global market society. Liberal economics would work its wonders with
the greatest possible efficiency if it were given the greatest possible theater in
which to operate—the entire world. Liberalism was therefore, in its fullest
form, a radically cosmopolitan system, seeing individuals the world over as
being integrated into one single grand global market mechanism. This point
was not missed by contemporary observers. The German sociologist Ferdi-
nand Tönnies was one who remarked upon it. “[T]he development of nation
states,” he suggested, could be looked upon as “only a temporary barrier to
an international market Society without national boundaries.” 
It should be carefully noted that it was not envisaged that this process
would result in a homogeneous world. On the contrary, the processes of spe-
cialization and division of labor were central features of the liberal plan, so
that the various different regions of the world would specialize in what they
were relatively best at producing—and then trade with other producers for
the satisfaction of the full range of their needs.
To an impressive extent, the liberal program was actually enacted in the
nineteenth century. Fittingly, this was not done through centralized action,
but instead by way of state-by-state adoption of free-trade-oriented policies.
Britain led the way in 1846, with the repeal of its “corn laws,” which were tar-
iffs on imported grain for the protection of domestic producers. On the wider
scene, the decisive step was the conclusion, in 1860, of the Cobden-Chevalier
Treaty (named after the two negotiators) between Britain and France, which
provided for massive reductions in tariffs between the two states. Most-
favored-nation clauses in treaties of amity and commerce helped to spread
liberal policies around the world. Along with broad freedom of movement
of capital, and remarkably free movement of persons, too—with the require-
ment of passports for international travel even falling largely into disuse by
the late nineteenth century—the period became something of a golden age
of liberal economics.
The Birth of Human Rights

Liberals tended to devote much attention to protecting individuals from gov-
ernments. This was far from a new idea. Even Bodin, the early champion of
sovereignty, held that rulers were subject to the strictures of natural law—and
that these included a due respect for the established rights of others. Most
notably, this meant that rulers could not arbitrarily take the property of their
subjects. Liberalism went further than this, though, in placing the primary
emphasis not so much on the limitations on governments as on the possession
of positive rights by individuals themselves. Moreover, the rights that liberals
sought to protect went beyond vested property rights to include matters such
as liberty of expression and freedom of the press, of religion, and of assembly,
as well as safeguards for persons accused of criminal offenses.
Concern also extended to protecting individuals from oppression by for-
eign governments. The most tangible sign of this solicitude was the network
of friendship treaties that grew up between the European trading states from
the seventeenth century onward. These treaties continued to be concluded
in large numbers throughout the nineteenth century. But an important fur-
ther step was taken in this period. It began to be asserted that protection
from arbitrary oppression by foreign government did not depend on the ex-
istence of a treaty. Instead, it was asserted to be a general entitlement, under
customary international law—and, as such, applicable to all aliens against
any foreign government anywhere in the world. American Secretary of State
Elihu Root asserted, in 1910, that countries are under a general obligation to
conform to “an established standard of civilization” in their treatment of
foreign residents. This is, he maintained, “a standard of justice, very simple,
very fundamental, and of such general acceptance by all civilized countries
as to form a part of the international law of the world.” Shortly after this,
the American scholar Edwin Borchard held this “established standard” to
mean that foreigners are entitled to “a certain minimum of rights necessary
to the enjoyment of life, liberty and property.” Borchard readily conceded,

though, that this was “a somewhat indefinite standard of treatment.”
General concepts of human rights began to take root in international
legal thought in this period in a more or less explicit way. The Russian (or
Estonian) lawyer Fedor Fedorovich Martens was not a partisan of liberal-
ism, but he clearly articulated the essential idea behind what would become
an international law of human rights. This was the thesis that the basic
rights of human beings are not creatures of legislation or treaty. “The rights,”
Martens contended, “flow from the nature and conditions of humanity and
therefore cannot be created by legislation. They exist by themselves.” These
fundamental rights were crisply summed up as being “the right to respect for
[the] person, to inviolability of . . . family and of . . . property.”
Perhaps the clearest outlining of a general law of human rights was ad-
vanced by the Italian lawyer Pasquale Fiore. Fiore’s original academic field
was constitutional law, which he taught at various universities, principally at
the University of Naples. He also did major work in private international
law. Outside the academy, he served as a senator and adviser of the Italian
government. In an eloquent address to the American Society of International
Law in 1912, he maintained that, contrary to the prevailing positivist ortho-
doxy, international law does not apply exclusively to states. Individual per-
sons, he insisted, have “certain rights, which are independent of the state
and sometimes in opposition to the rights of sovereign power.” He helpfully
provided several specific examples: the illegality of the slave trade, the invio-
lability of personal property, liberty of conscience, and the right to emigrate.
These “international rights of man” should be protected by international
law, along with the fundamental rights of states over which positivists were
so exercised.
Legitimacy of Governments
Another important item that liberals brought onto the agenda of inter-
national law was the legitimacy of governments. In national settings, this
was brought about by extension of the franchise, which made governments
(or some governments) increasingly responsive to the will of the persons
governed. In international law, it took the form of a policy of nonrecogni-
tion of governments that took power by irregular means. A proposal to this
end was put forward in 1907 by Carlos R. Tobar of Ecuador. He was a man of
many talents—a novelist and linguist, also a physician and educator, as well
as a diplomat with previous (and future) ser vice as his country’s foreign min-
ister. In an open letter written to the Bolivian consul in Brussels, he sug-
gested that the American republics “ought to intervene in an indirect way in
the internal dissensions” of one another. He went on to propose that this in-
tervention “might consist at least in the nonrecognition of de facto govern-
ment sprung from revolutions against the constitution.” By 1913, this pro-
posal had been christened as the “Tobar Doctrine.”
The Tobar Doctrine (though not yet under that label) made its fi rst entry
onto the international legal scene the very year that it was proposed. In 1907,
an Additional Convention was appended to a General Treaty of Peace and
Amity concluded by the five Central American countries under the watch-
ful auspices of the United States. In this agreement, the five (Guatemala,
Honduras, El Salvador, Nicaragua and Costa Rica) agreed that they would
not recognize as legitimate “any . . . Government which may come into power
in any of the five Republics as a consequence of a coup d’état, or of a revolu-
tion against the recognized Government.” 
Several years later, the United States followed suit—not as a matter of
legal obligation to other states in the manner of the Central American coun-
tries, but as a matter of self-determined policy. This was in relation to Mex-
ico, following the forcible taking of power by Victoriano Huerta (complete
with the murdering of his predecessor) in 1913. President Woodrow Wilson
refused to recognize the Huerta government and even officially called for
Huerta’s resignation from office. Wilson also took the position that official
acts done by Huerta would not be regarded as legally binding. This did not
have the hoped-for effect of forcing a change of government, although Huerta
was eventually overthrown and killed in 1916 in the course of further revolu-
tionary turmoil.
Liberalism and Positivism

The tight connection between liberalism and natural law has been noted. In
a number of important ways, however, liberalism and positivism were con-
genial. It may be noted in this connection that one of the earliest champions
of the ideas of Comte in the English-speaking world was the leading liberal
figure, the economist and philosopher John Stuart Mill. The most signifi-
cant feature shared by the two bodies of thought was that both had a funda-
mentally scientific and materialistic character. Liberals were also comfort-
able with the pluralistic ethos of positivism, since liberalism was based on
division of labor, specialization, and diversity.
The liberal vision bore a very striking resemblance to the neo-Kantian
one, in that both were emergent systems—that is, both envisaged order as
arising from below, by the spontaneous activity of the actors, and not from
above, by the imposition of some kind of central authority. The difference
lay in the kind of value system underpinning that emergent order. In the
case of the neo-Kantians, it was an intrinsic sense of rightness (embodied in
the Rechtsstaat idea) that made their system work, coupled with the key prin-
ciple of reciprocity. In the case of the liberals, the moving force was the ratio-
nal self-interest of individual actors, coupled with basic principles of respect
for contracts and private property. The two groups also differed as to the
identities of the key actors. To the neo-Kantian positivists, states were the pri-
mary (or exclusive) actors; to the liberals, private parties. But the broad frame-
works of their visions were strikingly similar.
There were important differences, too, however. The most fundamental
divide between liberalism and mainstream positivism lay in liberalism’s
powerful commitment to the empowering of individuals, through such
policies as free trade, along with such liberties as freedom of the press, as-
sembly, and religion and so forth. Correspondingly, liberals favored limit-
ing the activities of states. The duty of governments was seen as largely
negative in character: chiefly, to refrain from interfering with the activities of
individuals. Positive duties of governments were seen as largely facilitative—
for example, the protection of property rights. This was in the greatest
contrast to the mainstream positivist position—and especially the volunta-
rist variant—with its exaltation of the role of the state. In this regard, the
contrast between the liberals and the positivists could scarcely have been
greater.
One key issue on which the opposition between positivism and liberalism
was most evident was the question of an international minimum standard
for the treatment of foreigners. Liberals tended to be strong supporters of
the idea. But there was dogged opposition by the positivists. The most out-
spoken opponent of the idea was Calvo, who emphatically asserted the prin-
ciple of nonintervention. In the pluralist spirit of positivism, he insisted on

the right of each state to fi x its own standard of treatment as it chose. For-
eign visitors simply had to accept that standard when they entered. As a re-
sult, a foreigner could not be said to be mistreated if he were simply treated
on a par with nationals in the state where he found himself. Only if he was
discriminated against on the basis of being foreign could there be said to be
any mistreatment in the eyes of international law. This came to be known in
international law as the Calvo Doctrine. It received notably strong support
from Latin American countries, whose governments were fearful (with good
reason) of intervention by developed states into their internal affairs.
The Calvo Doctrine did not remain merely a doctrine. There was also a
concerted attempt to implement it in practice by means of legal provisions
that came to be known, fittingly enough, as Calvo Clauses. These were
provisions—whether of state constitutions or legislation or of contracts—
that sought to bar foreign-state intervention on behalf of foreign nationals
from the outset. The 1881 constitution of Venezuela, for example, contained
a general prohibition against “appeal to diplomatic intervention” by foreign-
ers (unless expressly allowed by law or treaties). Similar in spirit was a
provision of the Mexican Constitution of 1917, allowing foreigners to own
land or extract subsoil minerals only if they agree “to be considered as
Mexicans in respect to such property and, accordingly, not to invoke the
protection of their own Governments.” 
The validity of Calvo Clauses in international law became a matter of some
considerable dispute. Against their validity, it was contended that the right of
states to bring claims on behalf of their nationals for injuries inflicted by
foreign governments is an inherent right of the alien’s home state. Any pur-
ported waiver entered into by the alien himself cannot prejudice that inher-
ent right of his state. It is an interesting comment on the state of develop-
ment of international law that this dispute has not been definitively resolved
to the present day.
Limits to Liberalism
As impressive as some of the liberal innovations in international law were in
the nineteenth century, it must be acknowledged that there were also some
significant limitations to its impact. The Tobar Doctrine, for example, never
became part of general international law. The accepted rule instead was that
any regime that had, de facto, effective control over a country was entitled to
recognition by other states, without regard to the niceties of the state’s inter-
nal law.
Another problem was that liberalism was plagued by certain internal
inconsistencies. The most frustrating of these was the clash between two of
its cherished principles: nonintervention and protection of vulnerable per-
sons against government oppression. In principle, liberals were at one with
positivists in supporting the principle of nonintervention. Their shared
commitment to pluralism ensured this. Mill, for example, was a staunch
foe of intervention—at least in principle. But liberals were also strongly
inclined to support anticolonial and national liberation movements. Th is
was so in the case of American independence in the late eighteenth cen-
tury, as well as of the Latin American independence struggles in the early
nineteenth century. Other major liberal causes included the struggles of
the Greeks (and other nationalities) to break away from the Ottoman Em-
pire, the independence of Belgium from the Netherlands, and the revolts of
Poles against the Russian Empire and of Hungarians against the Austrian
Empire. This meant that there was a constant temptation on the part of
liberals to make exceptions to the nonintervention principle in favor of
victims of oppression.
Mill, for example, articulated two specific forms of intervention that were
permissible, as special exceptions to the general rule of nonintervention. One
was what might be called a right of counterintervention. This would occur in
a case in which a government called in some outside power to aid it in the
suppression of a rebellion. In such an event, Mill urged, other states would be
justified in assisting “struggling liberalism” by any means at their disposal,
including the use of armed force. The archetypal case (and the one that
Mill had in mind) was Austria’s suppression of the Hungarian insurgency of
1848–49, which was achieved by summoning Russian aid. The Hungarian
cause had captured the liberal imagination of Europe, and there was great
bitterness over its suppression by a foreign armed force.
Mill’s second proposed exception to the general principle of noninterven-
tion concerned civil wars—not all civil wars, but those in which the two
sides were so equally matched that neither could be reasonably expected to
prevail over the other without a great deal of protracted bloodshed. In such
an exceptional case, Mill argued, third states would be justified in forcibly

intruding into the conflict to compel a settlement.
Even these narrow exceptions to the general principle of nonintervention,
however, failed to gain acceptance among international lawyers. The domi-
nant positivist position held that aid to insurgents in civil conflicts was flatly
unlawful. This principle was confirmed in a resolution of the Institute of
International Law (a body of international law scholars) in 1900. The fur-
thest that mainstream positivist lawyers were prepared to go was to concede
that, in certain exceptional conditions, there might be a moral case for hu-
manitarian intervention, but not a legal one.
Liberalism therefore, for all of its achievements in some walks of life in
the nineteenth century, made comparatively little impact on international
law. Its triumphs generally occurred at the levels of individual states or of
bilateral treaties. In some respects, though, its foundation was solid. Eco-
nomic liberalism and ideas of fundamental human rights would both have a
large part to play in future.
The Sentiment of Nationality
If liberalism had its roots in natural law, another of the heterodoxical

schools had a close affinity with the historical school. Th is was the doctrine
that became known as the nationality doctrine, or sometimes as the Italian
School in honor of the country where it attained its greatest hold. We have
noted already the basic tenets of the historical school of law: the belief that
law is a product and expression of the particular historical and cultural ex-
perience of individual societies, rather than a system of universal and eter-
nal norms. The historical school therefore supported and reinforced positiv-
ism in its rejection of natural law.
Where the nationality school parted company with positivism was in its
rejection of the positivist fi xation on states as the fundamental units of inter-
national law. It contended instead—as its name implies—that the funda-
mental unit is the nation, which was defined as, ultimately, a cultural com-
munity. A nation was seen as a collectivity of people who are bound together
most conspicuously by a shared language, but who also possess a common
historical and cultural heritage, in such forms as shared folklore, religious
practices, and customs. The nationality school joined the historical school
in opposing the universalism of natural law, and in favoring the idea of plu-
ralism and diversity instead.
The earliest major champion of the core idea of the nationality school—of
a nation as a cultural unit more fundamental than a state—was the Prussian
schoolmaster and roving intellectual Gottfried Herder, in the late eigh-
teenth century. His was a cosmopolitan vision, with the world as a confed-
eration of nationalities living in harmony. Another early expression of the
nationality principle was by the Franco-Swiss literary figure Germaine de
Staël, in her book On Germany in 1810. She expressed the view that the
ideal goal for a state was that it would display an ethnic and cultural unity,
with its citizens united by a common language and historical memories.
According to the nationality thesis, states are merely the external trap-
pings of nations. In the words of Savigny, the state is “the bodily form of the
spiritual community of the nation.” The nationality school applied this
idea to international law, to produce the thesis that states and nations should
be brought into closer conjunction. More specifically, the contention was
that a people constituting a nationality possesses a fundamental right to
form themselves into a state. The most prominent and forceful proponent of
this notion was the Italian publicist and would-be revolutionary, Giuseppi
Mazzini, the founder (in 1830) and guiding spirit of “Young Italy.” This was
a nationalist movement advocating the expulsion of Austrian rule from the
north of Italy, Bourbon rule from the south, and papal rule from the center—
all to be supplanted by the birth of a single Italian state that would embody
the destiny of the Italian people to be united politically into one state, as
they were already united culturally into one nation.
Mazzini was one of the supreme idealists and propagandists of world his-
tory. Narrow and jealous forms of nationalism were not his style. On the
contrary, he was a thoroughgoing cosmopolitan who saw the various na-
tionalities of the world as operating harmoniously despite—or even because
of—their diverse outlooks and traditions. His picture resembled that of the
liberal economists, who similarly saw the economic regions of the world,
with their different resource endowments, as all contributing to the prog-
ress and integration of the world economy in general. Mazzini believed that
every nationality has its unique character, with its distinctive gift s to offer to
the greater human family. Between the countries of the world, he enthused,
“there will be harmony and brotherhood.” As with so many idealists,

militant imagery came readily to him. “Humanity,” Mazzini grandly
proclaimed,
is a great army moving to the conquest of unknown lands, against pow-

erful and wary enemies. The Peoples are the different corps and divisions
of that army. Each has a post entrusted to it; each a special operation to
perform; and the common victory depends on the exactness with which
the different operations are carried out.
In the sphere of international law, these ideas were most prominently cham-
pioned by a fellow Italian of Mazzini’s named Pasquale Mancini. He was
originally from Sicily. As a committed political liberal, he served in the
postrevolutionary government of Naples in 1848. When the Bourbon mon-
archy regained power, however, he was forced to flee to Piedmont. The re-
stored Naples government then proceeded to seize his property. In 1851,
he was appointed to the newly established chair of international law at the
University of Turin. His inaugural address, delivered that year, was the
principal statement of the nationality thesis. It was entitled “Nationality as
the Foundation of the Law of Nations.” Later that year, the Austrian am-
bassador to Sardinia-Piedmont attempted to stop Mancini from lecturing,
but the prime minister of the country supported him.
Mancini defined nationality as “a natural society of men whom unity of
territory, origin, customs, and language molds into a community of living
and of national consciousness.” This was the natural and fundamental
unit of human social life in his eyes. The state was a sort of secondary ema-
nation of the nation. In the definition that he made famous, the state was
“the juridical arrangement of the nation.” His nationalism, like that of
Mazzini, was cosmopolitan, in that he saw nations not as isolated, inward-
looking entities, but instead as components of a larger global society. “Just as
individuals should be organized as nations,” he maintained, “so all human-
ity must be organized in an international society, based upon the coexis-
tence and reciprocal independence of all the nations under the universal
rule of justice.” Strangely, although the ideas of Mazzini and Mancini were
very close to one another, neither of them ever referred to the other in his
writings.
Mancini proved to be on the winning side of history’s trends. Italian po-

litical unification was brought about during his (and Mazzini’s) lifetime, in
1860. He even had the honor of helping to prepare the legislation that
brought the changes into force. On behalf of the new national government,
he was sent back to Naples, now as administrator of justice, where he insti-
tuted a number of liberal reforms. These included placing limitations on the
power of the Catholic Church, as well as the codification of law. He served
briefly as minister of public instruction in the Italian government and later,
in 1881–85, as foreign minister.
A number of Italian writers followed the trail that Mancini marked out.
Fiore was one of them. He dedicated the first edition of his treatise on interna-
tional law to Mancini in 1865. Another prominent figure in this movement
was Terenzio Mamiani della Rovere, who was a publicist, philosopher, and
general man of letters. He also served as a deputy in the Sardinian parlia-
ment, briefly as minister of public instruction in Sardinia, and then, after uni-
fication, as an Italian senator. He presented probably the most thoroughgoing
exposition of the nationality thesis in a book published in 1856, The Rights of
Nations; or, The New Law of European States Applied to the Affairs of Italy. Na-
tions, Mamiani enthused, are “a favored creation of God.” Moreover, “it is by
nations that States are ordinarily founded.” A state that is founded on the
basis of nationality will then have what he called “a certain moral unity.”
Like Mazzini and Mancini, Mamiani was the very soul of tolerance and
broad-mindedness. All nations, he averred, “turn their glances towards the
[sun] of truth and justice, but each of them beholds it in a peculiar phase,
and with a distinct ray of it the soul of each is warmed and coloured.” Ever
the idealist, he envisaged that the various nations of the world would live in
natural harmony with one another, and that international law would there-
fore be spontaneously and voluntarily adhered to. What he called “the senti-
ment of rectitude alone” would suffice for the enforcement of international
law, and there should be no need for sanctions or coercion. “Nothing . . . is
finer or more glorious for mankind,” he proclaimed, “than that each nation
should remain the judge of itself, and the free legislator of all its own acts
and enterprises.”
It is hardly surprising, then, to find Mamiani as a strong supporter of a
rule of mutual nonintervention by states in the affairs of one another. He
held this to be “the very first principle and axiom of International Law.” In
this connection, he gave extended attention to the question of whether hu-

manitarian intervention should be allowed. His conclusion was firmly nega-
tive. “The self-rule of States,” he pronounced, “is sacred and inviolable.”
Nonetheless, Mamiani did allow for two marginal exceptions to the oth-
erwise strict rule of nonintervention, plus one important caveat. The first
exception was counterintervention. Like Mill, he conceded the lawfulness of
action taken to neutralize intervention by some other state. The second
exception was that intervention is permissible if its purpose is to assist a
subjugated people in throwing off a foreign yoke. The important caveat
was Mamiani’s insistence that aid given by one portion of a people to assist
their fellow nationals does not count as intervention—and is therefore out-
side the scope of the nonintervention principle. The reason is that, by defini-
tion, the two groups are actually the same people.
Support for the nationality doctrine from the liberal camp was readily
forthcoming. This was natural, in view of the support of liberals for govern-
ment by consent of the people. “Nationality,” said Mill, “is desirable, as a
means to the attainment of liberty.” He contended that, “[w]here the senti-
ment of nationality exists in any force, there is a prima facie case for uniting
all the members of the nationality under the same government, and a gov-
ernment to themselves apart.” He regarded this as a straightforward appli-
cation of the basic liberal principle that “the question of government ought
to be decided by the governed.”
Also compatible with liberalism was the nationality school’s vision of a
peaceful and harmonious world. According to this thesis, a nation that suc-
ceeded in establishing itself as a state—that is, succeeded in uniting all of its
members into a single state—could have no motivation for further expan-
sion at the expense of other states or nationalities. It therefore held out the
delicious prospect of bringing international rivalry to a natural halt. Unfor-
tunately, the conditions required to make this dream come true were daunt-
ing. Somehow or other, the seemingly impossible feat of giving every nation-
state its collective heart’s desire would need to be achieved. But this could
happen only if every state in the world was somehow forced into a monoeth-
nic, mononational mold. How this was to be accomplished without a great
deal of confusion—and probably violence—was not very apparent.
The Decline of the Nationality School

The nationality school did not win widespread support from international
lawyers generally. Even in Italy, it by no means commanded universal as-
sent. Anzilotti, notably, gave it a wide berth. The attitude of Bluntschli is
instructive, since he was a theorist of statehood before he acquired an inter-
est in international law. He accorded a certain cautious welcome to the na-
tionality thesis. “A People which is conscious of itself, and of a political vo-
cation,” he conceded, “feels a natural need to embody itself in a State. If it
has the power to satisfy this impulse, then it has a natural right to found a
State.” Bluntschli also opined that, at least in practical terms, it is to a
state’s advantage to be monoethnic, as that would be most conducive to na-
tional unity.
Bluntschli, however, firmly rejected irridentism—the notion that a state is
justified in expanding its borders so as to encompass members of its cultural
group who inhabit other countries. It is “stretching the principle of nation-
ality too far,” he warned, to demand that the boundaries of the state be “as
wide and as shifting as those of the language of a People.” This moral
claim of nationalities to form states, he concluded, is a matter more for the
judgment of history than of judicial tribunals or legal publicists:
How far a people is able and worthy to form a State cannot in the
imperfect condition of international law be decided by any human
judgment, but only the judgment of God as revealed in the history of
the world. As a rule it is only by great struggles, by its own sufferings and
its own acts, that a nation can justify its claim.
In the end, he regarded the nationality principle as lying “in the region of
policy, not . . . of public law.” It would be some time, he thought, before it
would be possible for “this merely moral imperative [to become] embodied
in [a] corresponding legal formula.”
Another weakness of the nationality school was that it was all too easy to
envisage the sentiment of nationalism turning away from the high-minded
idealism of Mazzini, Mancini, and Mamiani. There have been too many in-
stances in which nationalist sentiments have assumed ugly forms, marred
by intolerance and aggression. Intolerance of minority groups was an espe-
cially severe challenge, since the nationalities of the world are not (by a long
shot) conveniently grouped into compact territories that can be neatly de-
marcated from those of other nationalities. Basically, the Italian school
faded gradually, once the country’s unification was achieved in 1859– 61. But
not the ideals that it articulated. In fact, in the post–World War II era, the
ideals of the nationality school would experience something of a resurgence
in the decolonization movement.
Solidarism
The final heterodoxical movement in international law that arose in the

nineteenth century lacks a readily recognizable label, even though it is alive
and well at the present day. Here, it will be designated as solidarism. It has
also been called the sociological approach and sometimes the functionalist
approach (labels that became more common in the following century). It
has sometimes been termed mutualism. Whatever name is applied, the core
idea of solidarism is interdependence. Of all of the schools of thought of in-
ternational law, it was (and is) the one with the strongest commitment to the
age-old Aristotelian principle of innate human sociability—to the point that
it may be regarded as the reformulation of that principle into modern terms.
In the specific sphere of international law, solidarism was marked by a rejec-
tion of the positivist reverence for state sovereignty and independence, in
favor of a stress on the international community as a whole. In place of the
positivist concern for safeguarding the fundamental rights of states, there is
a stress on the promotion of good citizenship in a global community and the
steady promotion of the general welfare of all persons.
The word “solidarism” was coined in the early nineteenth century by a
frustrated French political activist named Pierre LeRoux, as a nonrevolution-
ary substitute for “fraternity” in the French revolutionary triadic rallying cry
of “liberty, equality, fraternity.” More than just the name was French. Soli-
darism itself was as distinctively French a creation as voluntarism was a Ger-
man one, or the nationality school Italian. It would not become a major force
in international law until the following century. But its roots were clearly
planted in the present period. In its inception, it appeared in two principal
variants, which may be labeled the technocratic and the sociological.
The Technocratic Variant

The technocratic variant of solidarism was the first to appear, at the hands of
an imaginative and eccentric French nobleman from Picardy named Henri
de St.-Simon. He lived during (and even through) the French Revolution—not
the most hospitable of times for a member of the nobility. He was saved from
the guillotine by the peasants on his estate who, in gratitude for the many
kindnesses that he had shown them over the years, pleaded with the revolu-
tionary authorities to spare him during the Terror. In 1814, at the close of the
French Revolutionary Wars, he put forward a plan for the future organization
of Europe—and ultimately of the world—that would entail the eventual aboli-
tion of politics itself.
St.-Simon envisaged that the older elite groups of military and political
figures were in the process of becoming obsolete in the new scientific age,
and that the future lay in the hands of a new class of persons, whom he la-
beled industriels. These were the captains of modern industry and of fi-
nance, together with engineers and scientists generally. This group would
play the leading role in the great mission of the economic development and
unification of the world, on a nonpolitical basis. If this sounds similar to the
scientific and technocratic ethos of positivism, the explanation is not far to
seek. Comte acted for a time as secretary to St.-Simon and absorbed many of
his master’s ideas. (The two had a bitter falling-out over credit for writings.)
St.-Simonism advocated a wholesale reorganization of the world. In its
grandest form, it saw the world organized as a kind of giant corporate enter-
prise, on a thoroughly planned, rational, scientific basis. In its vision of a
global planned economy, St.-Simonism was a clear precursor of socialism—
and, in fact, the word “socialism” was coined by St.-Simon (as a contrast to
“individualism”). His ambitious plans had a palpable influence on later so-
cialist programs. Friedrich Engels’s famous vision of a future socialist world
in which the “government of men” would be replaced by the “administra-
tion of things” was a direct expression of the St.-Simonian ideal. In such a
world as this, the skills of traditional lawyers, with their subtle doctrines of
rights and duties, would not be required.
The leadership of this great enterprise (as it could aptly be termed) was to
be entrusted to scientific, technical, and financial elites (the industriels),
working in coordination in the grand cause of global economic develop-
ment. The St.-Simonian vision was therefore decidedly elitist in outlook—

even authoritarian, as it lacked any commitment to democracy. It was also
strongly collectivist in its stress on planning. There is little surprise, then,
that many have seen premonitions of totalitarianism in it. In all events,
St.-Simonism presented a very great contrast to liberalism, with its individ-
ualistic and libertarian character and its stress on free competition. It was
similarly incompatible with the nationality school, since it had no use for
nations or states or cultural traditions. It was an aggressively modernist,
postpolitical, cosmopolitan creed.
A New World counterpart of St.-Simon can be found in an Argentinian
lawyer and political activist named Juan Bautista Alberdi. Like St.-Simon,
he had grand ideas for a continent-wide federation—this time in the form of
a call, in 1844, for a reorganization of the Spanish American republics into a
single federation. He envisaged that boundaries between the countries
would be altered in the interest of rationalization. “America is poorly put
together,” he contended. “We must redraw her geographical map.” He
proposed the formation of a regime of law to govern the river systems of the
continent and also favored a continent-wide program of tariff unification,
on the model of the Zollverein that the German states were putting together
at the time. There was to be cooperation on patents and copyrights, a high-
way and postal system, and a central university. A scheme of general disar-
mament for the continent was another part of his program, along with the
outright abolition of standing armies. Finally (as if all this were not enough),
“an international peace court” was to be established for the continent. In
general, the scheme was to have as its guiding consideration “the leaguing of
non-political interests” of the Spanish-speaking countries. Alberdi’s
grand plan did not, to put it mildly, come to fruition. But it showed the di-
rection in which at least some of the most advanced minds in the region
were thinking.
Alberdi’s ideas, like those of St.-Simon, were too wide-ranging to be con-
fined to a mere single continent. He was a fervent believer in the human race
as constituting a single body—with, ultimately, one single body of law to
govern it. “That which is called the law of nations,” he proclaimed, “is the
human law seen in its most general, most elevated, [and] most interesting
aspect.” He envisaged the eventual “union of the nations into a vast social
body of so many heads of states, governed by a thought, by an opinion, by a
universal and common judge.” Once this rather ambitious goal has been
achieved, “[t]he law will come by itself as the new law of life of this body.”
As in the St.-Simonian vision, material economic progress was seen as a
crucial component to this process. In par ticu lar, efficient communication
and transport networks would be of critical importance. By the time that
Alberdi wrote, some giant strides had certainly been taken in that direc-
tion, with the development of railroads and electric telegraphs. “In propor-
tion as space is annihilated by the marvelous power of steam and electric-
ity,” he enthused, “the nations of the world find themselves brought closer
and closer together, so that they seem to form a single country. . . . Every
railway is worth a dozen alliances, every foreign loan is a frontier wiped
out.”
The dazzling visions of St.-Simon and Alberdi were, of course, not imple-
mented in anything like their grand entireties. But some important incre-
mental steps were taken in the course of the nineteenth century. Notable
progress was made, for example, in the facilitation of international trans-
port. The Congress of Vienna—not otherwise remarkable for St.-Simonian
inclinations—adopted a Règlement for the Free Navigation of Rivers. Ac-
tion was first taken regarding the Rhine. Tolls were abolished, and naviga-
tion supervised by a shipping commission. Similar arrangements were ar-
rived at for other rivers, including the Elbe, the Danube, and the Po.
Provisions were also made for two key man-made waterways. One was
the Suez Canal, which opened in 1869. Usage of it was governed by the Con-
stantinople Convention of 1888. (Not until 1904, however, was this agree-
ment brought into effective force.) Broadly similar arrangements were
made for the Panama Canal, in the Hay-Pauncefort Agreement between
Britain and the United States in 1901. Special care was taken to ensure the
“neutralization” of the these two key waterways—basically meaning that,
even in time of war, warships from belligerent states would be allowed to use
the canals (contrary to the general rule of neutrality, that neutral states must
not allow belligerent armed forces to cross their territories).
International cooperation was organized in other technical and func-
tional (i.e., nonpolitical) areas, too. Postal communication was one. At the
beginning of the nineteenth century, states began to conclude bilateral trea-
ties on postal ser vice. In 1874, a General Postal Union was established,
based in Geneva. Four years later, it was transformed into the Universal
Postal Union, which continues to operate. In 1865, an International Tele-

graphic Convention was concluded, to which all states were invited to ac-
cede. Overseeing this arrangement was the International Telegraphic Bu-
reau, based in Berne, Switzerland, which began operations in 1869. An
International Radiotelegraphic Union was established in 1906.
A wide variety of other international organizations were created in other
fields. In 1897, for example, an International Maritime Committee was formed
in Brussels. Its work led to the concluding of two international conventions in
1910: one on collisions at sea and the other on assistance and salvage at sea.
For the rights of laborers, an International Labor Office was established in
1900. To deal with unfair trading practices in the sugar trade (chiefly in the
form of placing limits on government subsidies), a Permanent Sugar Com-
mission was established in 1902. It was estimated that, by 1911, over forty-
five public international unions were in existence.
These developments gave rise to some new terminology. The phrase “in-
ternational organization,” was coined, apparently by Lorimer in an address
in 1868. Ten years later, the term “international administration” was in-
vented by Bluntschli and later employed by Fedor Fedorovich Martens.
More substantively, a new outlook on law arose, too. A pioneer figure in this
was a German political scientist named Lorenz von Stein. Stein first taught
at the University of Kiel, then part of Denmark, but was dismissed for advo-
cating independence for the province of Schleswig-Holstein. He spent the
rest of his career at the University of Vienna as a professor of political econ-
omy. He was a historian of socialist and communist movements and was also
influenced by the writings of St.-Simon. When running for parliament in
Austria in 1874, he openly proclaimed himself to be a St.-Simonian. In 1865–
68, he produced a massive, seven-volume treatise on the doctrine of admin-
istration, which marked the start of academic study of what would become
known as international administrative law. His work became influential in
Japan, after several important figures in the Japanese government studied
under him in Vienna.
In the following generation, a prominent spokesman for this new interna-
tional administrative law was an American named Paul S. Reinsch, who
taught political science at the University of Wisconsin—including the first
comprehensive course on the subject of these international unions (as he
called them). There is little evidence that Reinsch’s views were the fruit of
abstract jurisprudential considerations. His work arose less out of doctrinal

dissatisfaction with natural law and positivism, and more out of extrapola-
tion from existing trends in the real world. In his own words, his outlook
was “concrete and practical.” He was, in fact, dismissive of the old “ratio-
nalist cosmopolitanism” of the eighteenth century. The mission of inter-
national law, he maintained, was not to build “cloud castles” but rather
“mountain tops . . . resting upon an immovable and massive foundation”—a
foundation, that is, of practical, material interests in the real world. At the
same time, he was careful to distinguish his “positive internationalism” (as
he called it) from “attempts artificially to create a world state.” He envis-
aged that states would retain their sovereignty—but would, at the same time,
be drawn ever closer together into ever denser webs of cooperation. It was, in
a manner of speaking, a vision that was positivist in spirit but (crucially)
without the pluralistic ethos of positivism.
Lawyers of the positivist persuasion, by virtue of their scientific outlook,
could look with approval on this technocratic ambition. Jellinek, for example,
was familiar with Stein’s work and wrote warmly of the promise that it held.
Stein’s concept of international administration, he stated in 1882, could point
the way to “a higher form of development” of international law—one that
looked beyond the forging of political ties, which by their nature were “always
very precarious.” The various public international unions, he maintained,
“promise to open up an exciting perspective for the future of international
law, both in theory and practice.”
The Sociological Approach

The other variant of solidarism, the sociological one, had at its core an insis-
tence on seeing law as a product of social and economic forces in the real
world. It is therefore best characterized as the international-law counterpart
of sociological jurisprudence in general legal philosophy. The role of law,
in this view, is chiefly the allocation of resources or the provision of ser vices
and not the exposition and defense of abstract rights. Law is regarded as
part of a more general program of identifying and meeting the concrete so-
cial and economic needs of communities and their members. To this wing
of solidarist thought, as to the technocratic one, the idea of interdependence
is fundamental.
This sociological variant of solidarism had its earliest intimations in such

initiatives as workers’ cooperative movements and mutual aid societies.
These bodies were organized on the principle that the members would look
after one another, providing assistance to one another in the face of the
many (and ever growing) uncertainties and disruptions of modern indus-
trial life. The British philanthropist and industrialist Robert Owen was a key
early figure in this movement. But it was in France, during the Third Repub-
lic (from 1875 onward) that it had the largest political impact. In the field
of economics, it was associated with the writing of Charles Gide. In sociol-
ogy, the work of Gabriel Tarde revealed a strong solidarist influence. In poli-
tics, its principal champion was Léon Bourgeois, later to become one of the
founding fathers of the League of Nations (and recipient of the Nobel Peace
Prize in 1920).
The foremost intellectual figure of this version of solidarism was Émile
Durkheim, France’s most prominent sociologist of the late nineteenth and
early twentieth centuries. He presented a picture of modern society as com-
prising a densely interconnected web of activities, with all parties constantly
relying on others. In the legal sphere, the most prominent spokesman of
the solidarist vision was the legal philosopher Léon Duguit, who was di-
rectly influenced by the writing of Durkheim. He was also an outspoken
opponent of voluntarism and, in particular, a fierce opponent of the notion
that a state—or, for that matter, any corporate body—could be regarded as
having anything like a distinct legal personality of its own. States, he in-
sisted, are merely mechanisms that can be employed by whatever persons
happen to be, de facto, in the position of controlling them.
Some hints of the solidarist persuasion were evident, too, in the work of
a Chilean lawyer named Alejandro Álvarez, who would later achieve great
prominence as a solidarist spokesman. In the pre-1914 period, he was
better known for another of his roles: as an advocate of a distinctively
American (i.e., Western Hemisphere) system of international law. But
there was early evidence of a solidarist frame of mind. In the late 1890s, he
studied in France under Louis Renault, to whose inspiration he credited
his legal outlook. Th is was revealed in a book on the subject of codification
of national law, written in 1904 on the occasion of the centennial of the
French Civil Code. Álvarez was accordingly not speaking of interna-
tional law on this occasion, but he did indicate his commitment to certain
“new doctrines” that were in the air—namely, those of socialism and soli-
darism. At the heart of these two beliefs (which he combined into a more
general concept of “solidarity”) was the replacement of the individualistic
orientation of law by a collectivist one. There should be a preference, Álva-
rez insisted, for the general social interest over private individual con-
cerns. The traditional emphasis of the law on the rights of individuals
should give way, he contended, to a recognition of the duties of persons to
assist fellow members of society in cases of need, and to the rights of as-
sociations of persons formed for the pursuit of various specialized collec-
tive interests.
Systematic applications of these ideas to international law would only
come after the First World War. But even before that, it is evident that soli-
darist ideas were part of the general intellectual atmosphere. Wherever there
were influences of modern sociological ideas, a general spirit of solidarism
could often be discerned. The American lawyer Amos S. Hershey, of the Uni-
versity of Indiana, writing in 1912, is an example. As he suggested,
In the further development of International Law, motives of utility and

a sense of international community interests should be allowed to have
at least as much influence as tradition and precedents based upon
metaphysical conceptions of natural law or abstract principles of jus-
tice. Jurists must learn to look forward as well as backward, and should
have regard to the probable or possible social consequences of a given
practice. . . . Social utility, or adaptability to human needs and human
social conditions, is thus the ultimate test of international, as of all hu-
man law.
Bonfils expressed similar sentiments, holding “the law of sociability” to be

“a natural and necessary law, not only for individuals, but also for States.”
In an interdependent world, each state, Bonfils maintained, “has the mis-
sion of working, with its own genius, for the general work of civilization.”
In his opinion, the two opposing forces of independence and interdepen-
dence are simultaneously at work—interdependence in the economic, intel-
lectual, and moral spheres, and independence in the political one—with in-
ternational law attempting to strike a balance between them. He surmised
that, over the long run, interdependence would prevail and that the de facto
international community that was presently based on it would ultimately

become a de jure one.
Relations with the Other Schools

Solidarism had strong ties to natural law. A central feature of natural law
had always been its universalist outlook—with its insistence that the whole
of humanity constitutes, ultimately, a single moral and ethical community.
This idea was also at the very core of solidarism. The two approaches were
also united in their common refusal to accord a central role to state sover-
eignty. Duguit was especially outspoken on this point. Law, he insisted, is a
not a product of government promulgation. It is an expression of the social
bonds that unite the people of any given society. Those are the primary forces
in legal life, with government and its various actions being simply their prod-
uct or expression. Government, in other words, is merely epiphenomenal.
Society itself is the fundamental reality and the font of legal norms. So sig-
nificant is the connection between solidarism and natural law that there is
not always agreement as to which category to place certain writers in. Kalten-
born, for example, has sometimes been identified as a pioneer of the solidar-
ists. Lorimer also had a pronounced affinity with the solidarists, in his
stress on the interdependence of states.
There were some important differences, though, between solidarism and
natural law. The principal one was the strong commitment of solidarism to
the idea of law as a product of social forces and relationships, and not as an
embodiment of eternal truths. In this key respect, solidarism had more in
common with the historical school of law than it did with natural law. But
here too, there were some key differences. Where the historical writers fo-
cused chiefly on cultural matters such as language, literature, and national
consciousness generally, the solidarists placed greater emphasis on economic
factors such as industrialization and technological advancement. Also, the
historical school stressed the uniqueness of various different societies, while
the solidarist focus was on interdependence and transnational ties.
Solidarism shared one vital common feature with liberalism: its focus on
human welfare rather than on the sovereign rights of states. The principal
difference between the two was that the solidarist outlook was basically col-
lectivist in character, where the liberal one was individualistic. The solidarists,
that is to say, rejected the liberal idea of rational self-interest as the principal
driving force of social life. Solidarism, with its elitist flavor, also lacked the
commitment to individual civil liberties and democracy that was such a
striking hallmark of liberalism.
Solidarism’s relation to mainstream positivism was instructive. It was
certainly poles apart from positivism in its disdain for the positivist fi xation
on the independence and sovereign prerogatives of states. Its adherents pre-
ferred to regard international law as a vehicle for the building of international
consensus and the promotion of ever deeper and more elaborate forms of
interdependence between states. Positivists, in sharp contrast, had far more
limited horizons. They tended to see international law in more limited terms,
as a means of dispute resolution for the inevitable cases in which the rights
and interests of the various independent states come into collision.
At the same time, however, solidarism was compatible with certain as-
pects of positivism, most notably with the empirical positivists’ focus on
the actual practices of states as the primary source of law. Like the empiri-
cists, the solidarists insisted on seeing the actual relations and practices of
states as the principal source of international law. In this regard, solidarism
shared in the positivist hostility to natural law. Duguit illustrates the close-
ness of this tie. He actually regarded himself as a positivist—of the empiri-
cal stripe, that is, rather than the voluntarist one—and was scornful of
natural law.
Intervention
Of all of the heterodoxical schools of international law, solidarism was the
one that was most forthright in countenancing intervention by states in the
affairs of one another. This is only to be expected, given the core solidarist
principle that the interests of all states are indissoluably bound up with one
another. Their community-oriented worldview, by its nature, discounted
the idea that there could be, ultimately, any such thing as a set of state inter-
ests that belong purely to one state alone. On the contrary, the very idea be-
hind solidarism is that the nations of the world, like individuals within soci-
ety, are inevitably one another’s keepers. As Alberdi put it, with disarming
candor, “[w]herever there is community of interests . . . the right of inter-
vention cannot be abolished.” In particular, there were two areas in which
the solidarist lawyers were prepared to hold intervention to be lawful: eco-

nomic and humanitarian.
In the economic sphere, the immediate issue was whether states should be
permitted to isolate themselves economically from the rest of the world. The
positivists had no difficulty answering this question in the affirmative. It is
the sovereign right of each state to devise its own economic policies as it
chose, without any right of interference by other states. It has been observed
that the partisans of both the liberal and the nationality schools were simi-
larly supportive of the principle of nonintervention. Natural lawyers reached
much the same conclusion, holding the right to engage in trade to be no
more than an imperfect right, meaning a “right” that cannot be enforced
through coercive means.
The concrete case that presented itself in the nineteenth century was that
of China, where the government was reluctant to open the country to trade
with the rest of the world. Positivist writers regarded this as a simple exer-
cise of sovereign prerogatives. China may not be acting wisely, but it was
within its legal rights. The solidarists tended to dissent on this point, insist-
ing that countries that shut themselves off from the wider world thereby vio-
late their duties to humanity at large.
The solidarist position on this topic was expressed most forcefully at the
beginning of the twentieth century by the French writer Albert Geouff re de
La Pradelle. He appealed, as a fundamental principle, to the sociable nature
of humankind and to the “duties of solidarity vis-à-vis other men,” which
arise directly out of this. China’s economic isolation policy, he insisted, was
a breach of that duty. He likened China to a miser, hoarding his riches to the
injury of his fellow men and thereby committing a crime against the global
political economy in general. Especially reprehensible was China’s refusal to
allow the exploitation of its mineral wealth, which injures the world at large
by depriving it of needed resources. In an interesting image, he compared
China to a blind man with sturdy limbs and Europe to a paralytic with
sound eyesight. “Just as a blind man does not have the right to refuse his
limbs to a paralytic who offers to guide his way,” he contended, “China does
not have the right to refuse Europe access to its mines.”
La Pradelle readily conceded that his position was contrary to the main-
stream position of international lawyers, with its heavy stress on “the
fundamental doctrine of the independence of States.” But he condemned
this orthodox standpoint as old-fashioned and benighted. The purpose of

modern international law, in his opinion, is not merely the negative one of
reducing or eliminating war and conquest. It is also the positive one of orga-
nizing the world’s economic and social relations in a rational and construc-
tive way. The “social conscience” of humanity, he optimistically asserted, was
in a state of constant expansion, first from the family to the nation-state—but
now and in the future, from the nation-state to the sphere of international
relations as well. State sovereignty is accordingly not something to be revered
but, on the contrary, something to be overcome, in the name of humanity.
The other form of intervention that was allowed by the solidarists was
humanitarian intervention. The first lawyer to endorse its lawfulness was
E. R. N. Arntz. He was originally German, from Cleves, but his political ac-
tivism brought him into disfavor. In the 1830s, he fled to Belgium after be-
ing indicted for treason. In his new homeland, he became a law professor at
the newly founded University of Brussels, where he spent nearly his entire
career. His consideration of intervention arose out of a crisis in 1876, when
the government of Turkey resorted to brutal methods to suppress an insur-
rection in Bulgaria (then part of the Ottoman Empire). The harshness of the
Turkish action, estimated to have led to some thirty thousand deaths, caused
outrage over much of Europe—including demands for military action in
support of the victims.
Arntz wrote (though only very briefly) in support of the interventionist
cause, from a basically solidarist perspective. He insisted that the rights
and interests of human society as a whole should take precedence over the
sovereign rights of individual states, just as, in national societies, the pri-
vate interests of individuals yield to the general public interest of the com-
munity at large. Arntz also insisted, again consistently with the solidarist
outlook, that intervention in humanitarian crises must be undertaken by
the international community collectively, and not by individual states on
their own.
This thesis received at least cautious support from the prominent Belgian
lawyer Gustave Rolin-Jaequemyns. Rolin-Jaequemyns exemplified the soli-
darist spirit in action, as he was active in various social welfare causes and
belonged to an organization called the International Association for the
Progress of Social Science. He was also a strong supporter of disarmament,
another unusual sideline for a nineteenth-century international lawyer.
The first detailed and systematic presentation of the case for the lawful-
ness of humanitarian intervention was by a little-known French lawyer named
Antoine Rougier, of the law faculty of the University of Caen, in 1910. He
explicitly based his argument on an appeal to what he expressly called “a fun-
damental law of political societies, the law of solidarity.” In addition, he in-
voked what he called a “common law of humanity.” He advanced the idea
of what he called a “human law,” which he candidly conceded to be closely re-
lated to natural law. Among his intellectual forebears, he named Duguit.
Rougier was sensitive to possible abuse of this asserted right of intervention. To
deal with that problem, he proposed, like Arntz, that humanitarian interven-
tion could be exercised only on a collective, not a unilateral, basis. He was also
careful to specify that the right is based on necessity, meaning that its purpose
is to relieve the sufferings of victims of oppression rather than to punish the
oppressors.
The lawfulness of humanitarian intervention continues to be one of the
most hotly debated issues of international law. Writers in the solidarist tra-
dition, such as Arntz and Rougier, in supporting it, reveal themselves as the
intellectual ancestors of what would later be called liberal interventionism—
the policy of infringing the sovereignty of states for a noble end. But solidar-
ism’s ideas swept much more broadly than this one issue. In the pre-1914
period, only the early glimmerings of solidarist approaches appeared. In the
case of writers like St.-Simon or Alberdi, the dreams were too extravagant to
gain support. Even more sober legal minds such as La Pradelle or Rougier
were too far out of the positivist legal mainstream to exert much influence.
In the course of time, though, solidarism would become one of the major
wings of international legal thought. But the present period offered only
tantalizing hints of that future greatness.
chapter eight
In Full Flower
y the early years of the twentieth century, it was difficult not to be

B impressed by the significant role that law now played in affairs between
states. In the first half of 1871 alone, three events took place that, in combina-
tion, provide a striking illustration of three different facets of the state of in-
ternational law at the time: dispute resolution, lawmaking, and enforcement.
The first event, in January of that year, concerned a dispute sparked by the
Russian government. The previous autumn, it had taken advantage of Eu-
rope’s focus on the Franco-Prussian War to declare itself absolved from
certain arrangements that had been agreed in 1856, at the conclusion of the
Crimean War). These barred Russia from sailing warships on the Black Sea
and had been the source of great resentment in that country. The British
government protested that Russia had no right under international law to
repudiate a treaty unilaterally—although it was also sympathetic to the Rus-
sian grievance. The matter was resolved not by a court or arbitral panel, but
instead in political channels, in the form of a conference of the major pow-
ers at the British Foreign Office. (Prussia was represented at the meeting, but
beleaguered France was not.) The powers issued a declaration on the subject
of the law of treaties, to the effect that a treaty party is not allowed to de-
nounce an agreement unilaterally. The consent of all other parties is re-
quired for an alteration. Having registered the point of principle, however,
the conference parties proceeded to resolve the immediate crisis by giving
the necessary consents to the sought-after change in the Black Sea rules.
The second event, in May of that year, provided an illustration of the pro-
cess of making new law. Representatives of the United States and Great
Britain, after several years of intense negotiations, concluded the Treaty of
In Full Flower 299
Washington, for the establishment of three arbitration panels to resolve a

number of outstanding disputes. The principal one, for present purposes,
was to rule on the U.S. accusation that Britain had violated the law of neu-
trality during the American Civil War (1861– 65) by allowing Confederate
warships to be built in its ports. The interesting thing about the treaty was
that it explicitly stated the rules (which soon became known as the Wash-
ington Rules) that the arbitral panel was to apply in resolving the matter.
Significantly, these rules placed stricter duties onto neutral states to police
their nationals than the prevailing law of neutrality did. The British-
American plan was to invite all states in the world to give their acceptance
to these rules, thereby converting them into general—and newly minted—
provisions of international law, by way of gradual, state-by-state accession.
Third and finally, the following month witnessed a dramatic demonstra-
tion of the enforcement of international law. This was undertaken by the
U.S. Navy, at the expense of the Far Eastern state of Korea. The action arose
out of an incident five years earlier, in which an American merchant ship
had sailed up a river in Korea without permission. It ran aground, and its
crew were killed in the course of quarrels with the local Koreans. In June
1871, an American naval force arrived on the scene, and its commander de-
manded an apology from the Korean authorities for the deaths. When the
Korean government refused, American marines were sent ashore, where they
seized five Korean forts and about twenty prisoners, with a loss of about two
hundred Korean lives (and twelve American ones). In the event, though,
hopes that the prisoners might be exchanged in return for a treaty with Ko-
rea opening up the “Hermit Kingdom” to world trade went unrealized.
International law, in short, was playing an increasing role in the day-to-
day activities of states in the nineteenth century. It could even be said that,
during this period, the world became unified into a single global legal com-
munity to a greater extent than ever before. One important sign of this was
the spread of international law far beyond the confines of the European
world and its outlying areas. It was also a time when international lawyers
began to organize themselves into a self-conscious professional community.
The states of the world could be said to form a community, too—of sorts.
But it was not one that was characterized by the equality of its members. It
became all too apparent that the positivist dogma of equality of states was
subject to some important caveats. Equality was soon seen to be the preserve
of the European states and their offshoots in the Americas. The states of the
Middle East and Far East were second-class citizens. Much of the rest of the
world was not even that, but was reduced either to outright colonial status or
else to some form of “quasi-sovereignty,” in the terminology that became
common.
There was certainly no denying, though, that international law had a far
higher profile, in the generations preceding 1914, than it had ever had be-
fore. The major legal processes of legislation, adjudication, and enforcement
were more advanced than ever before. Legislation proceeded largely in the
form of multilateral treaties. The culmination of this global sense of commu-
nity came with the two Hague Peace Conferences of 1899 and 1907. States even
began to go further and to combine into organizations for various defined and
limited purposes. Adjudication took the principal form of arbitrations and
also of mixed-claims commissions. Enforcement, more ominously, was a
matter of self-help—and, as such, a virtual monopoly of the major powers.
At the same time, signs of danger were not lacking. Important initiatives
in the legal field sometimes failed to bear fruit. And developing countries
increasingly chafed at their unequal status. International lawyers, for the
most part—and not surprisingly—inclined to dwell on the positive side of
their achievements, with some justice. International law proved strong
enough even to survive the cataclysm of a Great War.
International Law Becomes a Profession
In the nineteenth century, international lawyers became increasingly con-

scious of themselves as constituting a transnational professional community—
a sort of juridical freemasonry. Th is was consistent with the increasing
stress, especially by positivists, on international law as a science. Modern
science, by its nature, involved free communication and exchange of knowl-
edge across national lines, together with the regular publication of doctrinal
writings and the sharing of information about new developments. On the
publication front, a major step was taken in 1869 with the founding of the
somewhat cumbersomely titled Revue Générale de Droit International et de
Législation Comparée. Its joint founders were T. M. C. Asser (from the Neth-
erlands), Gustave Rolin-Jaequemyns (from Belgium), and John Westlake
In Full Flower 301
(from England). As its title indicates, it was devoted to comparative law, as

well as to international law.
Four years later, in 1873, came another notable step—or rather pair of
steps—with the founding of two international associations of international
lawyers in that year. The first was the Institute of International Law. Leading
figures behind its establishment included Francis Lieber from the United
States (originally from Germany) and Gustave Moynier from Switzerland,
who persuaded Rolin-Jaequemyns to summon a conference of international
lawyers. Bluntschli then proposed the establishment of a permanent organi-
zation, which held its opening meeting in Ghent.
The Institute described itself as “an exclusively scientific and unofficial
association” to encourage the general progress of international law. It met
every second year until 1910, when it shifted to a program of annual meet-
ings. It was hardly an organization for the masses. Membership was limited
to sixty persons, along with sixty associate members. But professional inter-
national lawyers were not a numerous group in that period. It is noteworthy
that there was no attempt to make the Institute into a bastion of mainstream
positivist thought. On the contrary, Bluntschli was one of the founders, and
Lorimer, too, was an early and active member. The first president was Man-
cini. From its earliest years, the Institute had an important impact, draft ing
studies and reports, as well as adopting resolutions, on various topics of inter-
national law. In 1904, it became an early recipient of the Nobel Peace Prize.
Founded in the very same year as the Institute (1873) was the other prin-
cipal organization, grandly titled the Association for the Reform and Codi-
fication of the Laws of Nations. In 1897, it adopted the more modest name of
International Law Association, which it continues to bear. It was a less elite
body than the Institute, with no limits on membership. Its mission was to
educate the general public on international law issues and to mobilize public
support for international law. It also had a somewhat broader subject matter
scope than the Institute, encompassing private as well as public interna-
tional law.
More in the scholarly vein was the Carnegie Institution of Washington,
endowed from the fortune of the Scottish-born American steel magnate
Andrew Carnegie, who was an enthusiast for world peace. It was set up in
1902 to promote research. One of its activities was the sponsorship of the
publication, beginning in 1911, of a series of books entitled The Classics of
International Law, which remain to this day a principal means of access to

the earliest writing on international law. A different body was the Carnegie
Endowment for International Peace, founded in 1910 for the chief purpose
of promoting the abolition of war. Plans were laid, also with Carnegie back-
ing, for the establishment of an international academy for teaching interna-
tional law, to be located at The Hague. Some additional support for this ef-
fort came from T. M. C. Asser, who, after cowinning the Nobel Peace Prize
in 1911, donated part of the proceeds to the cause. The coming of war in
1914, however, delayed the project.
National societies of international law were established at this time in the
larger developed countries. The American Society of International Law was
founded in 1906. Its first president was Secretary of State Elihu Root, al-
though the dominant figure in the day-to-day work was James Brown Scott.
Scott taught international law for a short time at Columbia Law School—
where one of his students was Franklin D. Roosevelt (who later referred to
Scott as the “Revered Preceptor of my youth”). He also served as legal ad-
viser to the Department of State, and later as secretary of the Carnegie En-
dowment. For broader Western Hemisphere reach, there was the American
Institute of International Law, founded in 1912. Its leading figures were
Scott and Alejandro Álvarez. The German Society for International Law
(Deutsche Gesellschaft für Völkerrecht) was established in 1912, with Theo-
dore Niemeyer of the University of Kiel as its leading founder.
Along with the various societies came professional journals. The German
journal, the Zeitschrift für internationales Privat- und öffentlichhes Recht,
began publication 1890 in Leipzig, covering private international law as well
as public. The first journal to be devoted entirely to public international law
was the French Revue Générale de Droit International Public, which began
publication in 1894. Its first coeditors were Paul Fauchille and Antoine Pillet.
In Spain, the Revista de derecho internacional y política exterior began publi-
cation in 1905, under the editorship of the Marquis de Olivart. In Italy, the
Revista di diritto internazionale was founded in 1906, chiefly by Anzilotti. In
the following year, the American Journal of International Law began publi-
cation, with Scott as editor. The first yearbook of international law was pub-
lished in Germany in 1913 (the Jahrbuch des Völkerrechts), under the editor-
ship of Niemeyer and a promising young lawyer named Karl Strupp. In the
1880s, the American lawyer Francis Wharton published a Digest of Interna-
In Full Flower 303
tional Law, embodying state practice in the area, chiefly from the American
standpoint. A successor Digest was published, in seven volumes, by John
Bassett Moore of Columbia University, in 1907. In 1905, La Pradelle, along
with a young Greek lawyer named Nicolas Politis, began publishing a collec-
tion of arbitral opinions—the first series of international-law case reports.
Teaching and Learning International Law

Along with professional societies and learned journals, a self-respecting sci-
entific profession required some kind of training process or means of admit-
ting new members into the ranks. In this respect, international law lagged far
behind other parts of the legal professions. There was not—and still is
not—an international bar society with an exclusive power to license persons
to practice international law. Moreover, the number of people who could
claim international law as a career-long occupation was slender in the ex-
treme. As late as the 1880s, we find Lorimer lamenting that there was not a
single example of a first-rate author who had made international law a sub-
ject of lifetime study. Ironically, Lorimer’s own career illustrated his point,
as his early work had been in the area of Scots law rather than international
law. A generation later, things were much the same, with Oppenheim ob-
serving that “[t]he majority of the people in [Great Britain] who take an in-
terest in International Law are not jurists and have no legal training.”
Most of the major contributors to the subject came late to the field, after
specializing in other areas of law. Bluntschli’s professorship at the Univer-
sity of Heidelberg was in constitutional law. He was nearly sixty before he
turned his attention to international law. Jellinek, also at Heidelberg, simi-
larly held a professorship in jurisprudence rather than international law.
Triepel was a scholar of constitutional law as well as international law. In the
United States, Francis Lieber, the drafter of an influential code on the con-
duct of war, was, like his friend Bluntschli, primarily a political scientist.
Theodore Dwight Woolsey, the first teacher of international law at Yale Law
School, began his career as a professor of classics. Westlake’s early expertise
was in private international law. The same was true of Mancini. Fiore origi-
nally taught philosophy, as well as constitutional and administrative law.
Louis Renault had originally specialized in Roman law and commercial law,
and then in criminal law.
It is remarkable (and not readily explicable) how many international law-

yers began their careers in the field of criminal law. Heffter was one (with
civil procedure as another of his major academic interests). Oppenheim was
another, as was Heinrich Lammasch, the most prominent Austrian interna-
tional lawyer. Francis Wharton in the United States was similarly distin-
guished in criminal law, most notably as an influential figure in the develop-
ment of the insanity defense. Franz von Liszt, from Germany, was the most
striking example, in that, throughout his career, criminal law remained his
principal interest, with international law as a sideline.
International law was slow in obtaining a place in university curricula—a
process that still awaits adequate study. An early professorship in the subject
was established at the University of Turin, with Mancini as its first holder in
1851. It was the English-speaking world, however, which took the leading
part. In Canada, international law was taught first at McGill University in
Montreal in 1856, and then at Laval University the following year, as well as
at Dalhousie University in Halifax from the time of its foundation in 1883.
The mother country soon followed suit. In 1859, the Chichele Chair of Inter-
national Law and Diplomacy was established at Oxford University. At Cam-
bridge, the Whewell Chair in International Law was founded in 1867. West-
lake and Oppenheim were eminent holders of it prior to 1914.
In the United States, Harvard Law School attempted to enlist Wheaton to
teach international law in the 1840s, but illness prevented his taking up the
offer. The earliest university instruction in the subject may therefore have
been at the newly founded University of Wisconsin, in 1852. At Yale Uni-
versity, Woolsey began teaching the subject after stepping down as the uni-
versity’s president in 1871. Instruction in the subject began at Columbia Law
School in 1880. But it was not until 1891 that the Hamilton Fish Professor-
ship of International Law and Diplomacy was created—the first full profes-
sorship in the subject in the country. Its inaugural holder was John Bassett
Moore, who remained in post for an impressive stretch of thirty-three years.
The first course in international law at the University of California at Berke-
ley took place in 1891–92. In 1898, Harvard Law School appointed its first
international-law professor (although lectures had been given in the subject
in the 1860s). Harvard Law School later became a major center of international-
law scholarship, after it acquired the massive library of the Marquis de
Olivart, the noted Spanish scholar, in 1912. This collection formed the basis
In Full Flower 305
of what became, for many years, the standard bibliography of international

legal literature.
Even when international law was taught in universities, there was some
division of opinion as to whether it was best done as part of a law curricu-
lum. Some regarded it instead as part of the study of public affairs in gen-
eral, rather than as a matter for legal specialists. John Stuart Mill was of this
persuasion. In his inaugural address as rector of St. Andrews University in
Scotland in 1867, he contended that international law should form “a part of
all liberal education.” The reason, he explained (in the spirit of Austin), was
that international law is not “properly law” but instead is “a part of ethics.”
More surprisingly, Westlake, at Cambridge, expressed a similar opinion in
his 1888 inaugural lecture for the Whewell Chair. “International law is no
more a subject for specialists,” he maintained, “than home politics are.”
There was accordingly some tendency in the English-speaking world for in-
ternational law to be taught in association with jurisprudence or legal phi-
losophy, in memory of the long association of international law with natural
law. In the United States, it was common for international law to be taught
(as at Columbia) in conjunction with such subjects as history, diplomacy, or
political science. To the present day, the title “international lawyer” is a
somewhat loose one, not necessarily confined to qualified lawyers.
In Germany, there was not a single academic chair devoted wholly to in-
ternational law until 1912. This may have been a reflection of a tendency of
German academics to see international law as part of public law in general
rather than as a distinct discipline—a state of affairs that largely continues
to the present day. In 1914, an Institute for International Law was estab-
lished at the University of Kiel (Rachel’s old institution) by Theodor Nie-
meyer. Under Niemeyer’s leadership, Kiel became the foremost center in
Germany of international law studies.
International Lawyers in Public Service

For international-law scholars to put their knowledge to practical use was
nothing new. It has been observed that Grotius and Vattel both did diplo-
matic work and that G. F. von Martens was active in various forms of gov-
ernment ser vice. This public-spirited trend continued throughout the nine-
teenth century. Diplomatic ser vice remained a common outlet for legal
skills. Wheaton and Calvo served as ambassadors for their respective coun-
tries (Calvo did ser vice for Paraguay and the Vatican, as well as for Argen-
tina). So did Bello and Alberdi. In Belgium, Rivier served for a time as con-
sul general for his native Switzerland.
An especially important external sign of the growing importance of legal
issues in international relations was the employment of in-house legal coun-
sel by foreign offices (a process on which there is a great deal of light yet to be
shed). In the case of Britain, the practice dates effectively from 1876, with
the appointment of Julian Pauncefort as legal assistant secretary in the For-
eign Office. In France, the grand-sounding position of jurisconsult to the
Ministry of Foreign Affairs was created in 1890, specifically for occupation
by Renault. Over the years, he represented France at many international con-
ferences. In 1903, he was accorded the even grander title of minister plenti-
potentiary and envoy extraordinary. Fedor Fedorovich von Martens served
the Russian government as a legal adviser for some forty years, beginning in
1869. Phillipp Zorn performed similar ser vice for Emperor William II of
Germany. Both Fiore and Anzilotti advised the Italian foreign ministry. In
Latin America, Bello, and later Álvarez, served the Chilean government.
The American government made especially liberal use of international
legal expertise at this level. Moore, for example, worked for the Department
of State in 1886–91, before taking up his professorship at Columbia. Even
after that, he periodically provided legal assistance to the government (such
as advice on the conclusion of the peace treaty with Spain in 1898 at the
conclusion of the Spanish-American War). Robert Lansing, a highly experi-
enced practitioner of international law, became a legal adviser in the De-
partment of State.
Lawyers sometimes labored in foreign countries. A French lawyer named
Paul Pradier-Fodéré, for example, went to Peru in 1874, chiefly to reorganize
the Department of Political Science and Administration at the University of
Lima. While there, he founded the Faculty of Political and Administrative
Sciences, taught a number of courses, and was named to the country’s Supe-
rior Council of Public Instruction. Rolin-Jaequemyns spent about ten years
in Siam (in 1892–1902), where he performed a range of legal and adminis-
trative ser vices.
On occasion, international lawyers served as foreign ministers of their
countries. Most conspicuous in this regard was Mancini, who was Italian
In Full Flower 307
foreign minister in 1881–85. In Argentina, Amancio Alcorta, an erstwhile

professor of international law at the University of Buenos Aires (and treatise
writer), served several stints as foreign minister in the period 1895–1902.
(He is not to be confused with the later president of Argentina, of the same
surname.) In the United States, William Evarts, one of the most famous
lawyers in the country—with ser vice in international arbitration—served as
secretary of state in 1877–81. Elihu Root, also a distinguished lawyer, was
secretary of state in 1905– 09—and (as noted earlier) the first president of
the American Society of International Law.
Judicial ser vice was another outlet for the public spirit. Robert Philli-
more, the author of the first comprehensive British treatise on international
law in the 1850s, served on the admiralty bench. Heffter was a judge in
Germany. In the United States, James Kent, who did the first systematic sur-
vey of international law in his country (as part of a larger discourse, rather
than as a stand-alone treatise), was a chancellor in the New York State courts
of equity, in addition to teaching law at Columbia University. Wheaton also
served in minor judicial posts, apart from his work as a Supreme Court re-
porter. Most appropriate for international lawyers was ser vice as interna-
tional arbitrators, as will be noted later.
Sometimes, international lawyers held political posts of varying degrees
of importance. Calvo, for example, served in the Argentine congress for a
time. Alberdi was instrumental in drafting his country’s constitution of 1853,
in addition to serving in the Argentine congress. Alcorta served in that
country’s chamber of deputies, as well as holding cabinet posts in the fields of
government affairs and the economy. Fiore was a member of the Italian sen-
ate. Rolin-Jaequemyns was minister of the interior in Belgium for six years
(in 1878–84). In Germany, Liszt was a member of the Prussian chamber of
deputies and of the imperial Reichstag, belonging to the Progressive People’s
Party. Westlake was briefly a member of the British House of Commons (as a
Liberal), prior to taking up the Whewell professorship at Cambridge. His
predecessor in that post, William Harcourt, was far better known as a prac-
ticing politician than as a legal scholar. He was a major figure in the British
Liberal Party, serving as home secretary and chancellor of the exchequer—
though he was unsuccessful in his bid to become prime minister in 1894
when William Gladstone (finally) retired. It may be noted incidentally that
American President Benjamin Harrison, after leaving the White House in
1893, did international legal work, ably representing Venezuela in 1898–99

in an arbitration against Britain over the boundary with British Guyana.
For activist roles in public life, it would be difficult to exceed that of
Henry W. Halleck in the United States. A graduate of West Point, his fi rst
contribution to public life was in the professionalization of military studies
(which earned him the derogatory nickname of “Old Brains”). After mili-
tary ser vice in the Mexican War, he became a principal drafter of the Cali-
fornia state constitution, then a prosperous practicing lawyer and business-
man. Amid this activity, he produced his treatise on international law in
1861 and then promptly became a general in the Union armies in his coun-
try’s Civil War, rising to the post of supreme commander of the Union
forces.
Two Who Stood Out

In this period when a genuine community of international lawyers can be
said to have formed—the generation before 1914—two figures may be iden-
tified as the most prominent: Martens and Renault. As will be observed
presently, these two were the most prominent figures in various interna-
tional conferences of the period, as well as in arbitrations.
Fedor Fedorovich von Martens was no relation to his German namesake
from a century earlier. He was born in Estonia to a poor Lutheran family
and orphaned at an early age but had the good fortune to attend the Univer-
sity of St. Petersburg and then to study abroad. At the University of Heidel-
berg, he attended lectures by Bluntschli, and at Vienna by Stein. Both of
these men made a great impression on the young lawyer. After returning to
Russia, he served as legal adviser to the foreign ministry for some forty
years, from 1869 until his death in 1909. For most of that period, he doubled
as a professor of international law at the Imperial School in St. Petersburg.
In a busy professional life, he somehow found time to pen a three-volume
treatise on international law, published in 1883. A clear sign of an earnest
personality was his motto: “Labor omnia vincit” (“labor conquers all”). He
also had the remarkable distinction of being the subject of a novel in the late
twentieth century—a form of recognition without parallel in the profes-
sion. (In the course of the novel, Martens becomes briefly transformed
into his earlier German namesake.)
In Full Flower 309
Renault was the son of a bookseller from Autun. He studied literature at

the University of Dijon, and then law at the University of Paris. After re-
turning to Dijon as a lecturer in Roman law and commercial law, he trans-
ferred to Paris in 1873 to become a professor of criminal law. He entered
international law largely by accident. A vacancy in the area arose in the
Paris faculty, which Renault agreed to fi ll on a temporary basis. But he con-
tinued teaching it for the rest of his career, right up to his death in 1918. He
became a professor in the subject in 1881 (although still continuing to teach
commercial law, even coauthoring a nine-volume treatise on the topic).
The two men shared a number of attributes. Both were longtime advisers
to their respective foreign ministries (Russia and France), representing their
countries at a number of conferences over the years. Both combined this
task with university teaching. Both were very active in international arbitra-
tions, too. Renault served as an arbitrator on six occasions, and Martens on
five. For his ser vices in this area, Martens earned the sobriquet of the “chief
justice of Christendom.”
They shared a notable intellectual feature as well, in that neither was dog-
matically tied to mainstream positivist thought. They were both eclectics. It
has been observed that Martens showed some passing sympathy with liber-
alism. In his treatise, he expressed strong criticism of both positivism and
natural law and gave some signs of an affinity with solidarist thought. In-
ternational law, he asserted, was now in the process of entering a third age
(after the natural-law and the positive periods), in which “the solidarity of
interests” of states would loom increasingly large. He insisted that the basis
of the emerging new law must not be the absolute independence of states,
but rather “the idea of the international community according to which each
State is tied to the other States by interests and common rights and forms
with them an organic whole notwithstanding its independence.”
Renault is difficult to pigeonhole in intellectual terms, since, unlike Mar-
tens, he never produced a substantial treatise on international law. But his
outlook was basically Grotian, in the pragmatic tradition of Zouche and G.
F. von Martens. He carefully avoided fully committing himself exclusively
to either positivism or natural law, preferring a blend of the two. A resolute
nonutopian, he insisted that international law must be rooted in the events
and relationships of the real world—but also that it must be shaped and in-
formed by reason and by the critical spirit of natural law.
In personal terms, the two men were rather different. Martens was a some-
what haughty and self-important figure (scorned by one fellow conference
participant as having “an explosive lack of tact”). Renault, in contrast, was
the incarnation of modesty, self-effacement, and generosity. If he was never
the author of a magisterial treatise, as Martens was, he nonetheless stands
out as the great international-law teacher of the period. Concurrently with
his appointment at the University of Paris, he taught at the School of Politi-
cal Sciences and at two of the military schools. Over the course of his forty-
four year teaching career, he is said to have directed an astonishing total of
252 doctoral theses and to have taught a number of persons who achieved
later eminence (including Álvarez, who regarded him as a major inspiration
behind his thinking). If any one deserves the title of schoolmaster of
nineteenth-century international law, it is he.
Abroad in the World
It will be recalled that one of the most important features of international law,
to the mainstream positivists, was its fundamentally contractual character—
it was a law between nations. That immediately implied that international
law could not be truly worldwide in scope—a point that writers in the natu-
ralist school of the seventeenth and eighteenth centuries, such as Cocceji,
had made. Like any man-made system, international law must inevitably
bear traces of the historical context in which it was formed. That meant,
specifically, that international law must be acknowledged to be, first and
foremost, a product of European civilization.
In this vital respect, the contrast with the natural-law outlook could hardly
be starker. Natural law was a thoroughly cosmopolitan system, embracing all
cultures, religions, and races and regarding the whole of humankind as ulti-
mately a single family (and ideally a harmonious one at that). In this vision,
there was no room for according a privileged status to the European states
and their offshoots. But the position was far otherwise on the positivist view.
The elaborate system of customary and treaty law that built up over time, and
especially throughout the nineteenth century, was the product of European
effort. And since international law, by its nature, was seen as a contractual
system, it inevitably followed that the only states that were full members of
In Full Flower 311
the international legal community were the European states which had par-
ticipated in its making. This point was readily acknowledged by positivist
writers. The British lawyer William Edward Hall, for example, matter-of-
factly held international law to be “a product of the special system of mod-
ern Europe”—and, as such, to be what he described as a “highly artificial
system” that “cannot be supposed to be understood or recognised by coun-
tries differently civilized.”
The position was, ironically, much like that of the ancient Greeks, who
acknowledged certain general norms to be applicable within the commu-
nity of independent Greek states, but not to the barbarians outside. But what
was the position regarding these outsiders? In answering this question, in-
ternational lawyers adopted a classification that was propounded by various
writers in the newly emerging field of anthropology. In 1877, an American
anthropologist—and lawyer—named Lewis Henry Morgan published a
treatise on Ancient Society, which set out a three-tier classification of human
societies, based not on race or religion, but on the level of cultural develop-
ment. The three categories of peoples were designated as civilized, barbar-
ian, and savage. A number of international lawyers adopted this threefold
schema, including Lorimer, Woolsey, Bonfi ls, and Nys.
By civilized states were meant, of course, the Christian European coun-
tries, plus their ex-colonial offshoots such as the Western Hemisphere re-
publics. In the barbarous category were the non-Christian states with a high
degree of central government—the Ottoman Empire, Persia, China, Japan,
and Siam. In the savage group were the myriad tribal and national groups of
Africa and the Pacific islands. International law as the positivists conceived
it—with their resolute insistence on the legal equality of states—was appli-
cable only within the circle of civilized states, since only those states had
participated in its construction.
On the delicate question of legal relations with the states of the other two
categories, there was a certain vagueness. Phillimore held that international
law did hold between Christian and heathen states, as well as between hea-
then states inter se, though only in “a vague manner and less perfect condi-
tion than between two Christian communities.”  Bonfils opined that the
principal Asian states such as China and Japan did not qualify for what he
called “plenary recognition” as members of the international community,
but instead merited only what he called “partial recognition.” 
In 1877, the question of the applicability of European international law to

the oriental states was placed on the agenda of the Institute of International
Law, with the British admiralty lawyer Travers Twiss appointed as rapporteur
for a study on the subject. Nothing very definite came of this effort, however.
In 1879, Twiss recommended dropping the issue from consideration, although
he did remark that a distinction should be made between, on the one hand,
the more advanced and centralized states such as Turkey, China, Japan, and
Persia and, on the other hand, “pagan and semi-savage populations.” 
There was only one clear example of formal transfer of status from the
category of barbarous to civilized: that of the Ottoman Empire. In the Treaty
of Paris of 1856, at the conclusion of the Crimean War, Turkey (which had
been allied to Britain and France during the conflict) was formally invited
to “participate in the advantages of the public law and concert of Europe.” 
To the present day, Turkey stands universally acknowledged to be a Euro-
pean state.
Exporting International Law to the Far East

The principal figure in China’s introduction to the international legal ways
of its overseas strangers was an American medical missionary (and future
ambassador to China) named Peter Parker. He founded China’s first hos-
pital in Canton in 1835 and later introduced the practice of anesthesia. In
addition, he introduced a mild tonic for the body politic of the country, in
the form of a translation into Chinese (rather loosely) of three passages from
Vattel’s treatise. This occurred in 1839, at the request of the Chinese gover-
nor general of the provinces of Hunan and Hupeh, in the context of a dis-
pute over China’s right to prohibit the importing of opium, in which British
traders were then doing a worryingly lively business. One of the passages
asserted the right of states to prohibit imports of foreign goods, as an exer-
cise of state sovereignty. Another concerned the right to wage war in vindi-
cation of rights that had been violated. The Chinese government promptly
moved to make use of this exotic intellectual import. It enacted an official
prohibition against the importing of opium, rendering the valuable trade il-
legal at a stroke.
That was not, however, the end of the story. The enforcement measures
that China took against opium smugglers caused offense in Western quar-
In Full Flower 313
ters, leading to armed conflict with Britain, in the form of the so-called
Opium War of 1839–42. The legal issue in the conflict, though, was not Chi-
na’s right to prohibit the trade. That was always conceded, both before and
after the hostilities. The legal casus belli was an allegation of mistreatment of
British nationals who were accused of violating the Chinese laws and taken
into Chinese custody.
The Chinese took a further step in the adoption of Western international
law by having Wheaton’s treatise translated, in its entirety, into Chinese in
1864. Th is was the work of another American missionary, William A. P.
Martin. Western diplomats were not unambiguously pleased to see this
knowledge being brought to Chinese attention. The French chargé d’affaires in
the country is said to have grumbled that China could cause “endless trouble”
if it were armed with this legal ammunition. An American diplomat was
similarly concerned that the Chinese might start looking for legal grounds
to contest the various unequal treaties to which it was being energetically
subjected.
That there was some foundation to these worries was demonstrated al-
most immediately, when China became embroiled in a dispute with Prussia.
This was over the capture by Prussia, in 1864, of a Danish ship in Chinese
territorial waters (Prussia and Denmark then being at war over Schleswig-
Holstein). The capture was in violation of China’s rights as a neutral state.
With some welcome assistance from Wheaton’s text, the matter was resolved
to China’s satisfaction, with the Prussian government releasing the ships and
paying $1,500 in compensation. Chinese officials were duly impressed with
their new discovery. Conceding that Wheaton’s treatise “contains sporadic
useful points,” the chief minister of the Chinese government ordered three
hundred copies to be distributed among provincial functionaries.
As a reward for his contribution, Martin was made president and profes-
sor of international law at the Tongwen Guan Library (the Academy of For-
eign Languages) from 1868 to 1894, and then became the first chancellor of
the Imperial University of Peking (1898–1900). In the course of this second
career, he became the foremost Western student of traditional Chinese ap-
proaches to international law and international relations. He also continued
his noble task of making Western international-law literature accessible to
the Chinese. This included translating Woolsey’s Introduction to the Study of
International Law into Chinese in 1877, as well as a Manual of War compiled
by the Institute of International Law in 1880. A team under Martin’s guid-

ance also translated Bluntschli’s treatise.
Japan’s introduction to Western international law differed from that of
China in that it involved going directly to the source of the new learning. In
1862, two Japanese scholars were sent to the University of Leiden. One of
them, Nishi Amane, was already something of a specialist in Western ways,
having worked as a translator at the Nagasaki trading station, the sole port
where trade with the West (i.e., the Dutch) was carried on. In two years at
Leiden, Nishi and his companion attended lectures by Simon Vissering, a
professor of politics, who was also learned in economics and would later
serve as Dutch minister of fi nance. His teaching was primarily in the areas
of constitutional law and political theory, but it included jurisprudence and
international law as well. (Vissering was also the discoverer and publisher of
Grotius’s De Indis, published as A Commentary on the Law of Prize and
Booty). In the course of these studies, Nishi was influenced by Kant’s essay
on Perpetual Peace. He became acquainted, too, with the positivist and
utilitarian ideas that were prevalent in Europe at the time, particularly the
writings of Comte and Mill.
In 1866, after his return to Japan, Nishi published a four-volume work
entitled Bankoku kōhō (“International Law”) based on Vissering’s teaching.
His major contribution to his country’s modernization, however, would prove
to be in the area of military studies rather than law. In the meantime, Whea-
ton’s treatise had been imported into Japan, first in 1865 by way of a transla-
tion of Martin’s Chinese version (as “The Public Law of the Ten Thousand
Nations”), and then in a second translation (apparently at least in part from
the original) three years later.
This new knowledge proved welcome, as international-law issues were
facing the country. An early dilemma, in the wake of the Meiji Revolution of
1868, was the question of the country’s continued adherence to treaties that
had been concluded by the now-overthrown Tokugawa regime. After an in-
tense debate within the government, it was announced, in February 1868,
that the treaties would continue to be honored. Two years later, the new
learning proved useful in the drafting of a Japanese declaration of neutrality
regarding the Franco-Prussian War.
In 1894, Japan found further use for international lawyers when war broke
out against China. Both the land and naval forces of Japan were provided with
In Full Flower 315
international-law expertise on the spot. For the naval forces, there was Taka-
hashi Sakuyei, who was professor of international law at the Imperial Univer-
sity in Tokyo and a member of the House of Peers in the Imperial Diet. For the
land forces, there was Ariga Nagao, who also advised on the wording of the
Japanese declaration of war. Ariga studied law in Germany and had been pro-
fessor of international law at the Army College in Tokyo since 1891 and the
author of a textbook on the laws of war. He later taught international law at the
Universities of Tokyo and Waseda. Both men wrote defenses of Japan’s actions
for Western consumption, Takahashi in English and Ariga in French. Both
did further service for their country in the Russo-Japanese War of 1904–5. On
that occasion, Takahashi (the more prominent of the two) was legal adviser to
the foreign ministry. Ariga was again assigned to the land forces, where he
helped to negotiate the Russian surrender of Port Arthur.
The Japa nese government also imported some Eu ropean expertise in
international law on the hoof (as it were). This occurred in 1872, when the
government induced a French scholar named Gustave Boissonade to come
the country to advise it on the draft ing of legal codes. He ended up spend-
ing twenty-one years there. An early task was to act as a legal adviser on
the Japa nese government’s Taiwan expedition of 1874, which was mounted
in response to the killing of some Okinawan fishermen by Taiwanese ab-
originals. Japan obtained one solid benefit from this fi rst excursion into
international law enforcement: China’s formal acknowledg ment of Japan’s
title to Okinawa. For his various ser vices, Boissonade was awarded
the Order of the Rising Sun (second degree) in 1876, a rare honor for a
foreigner.
Extraterritoriality
The barbarian states (as they were called) may have been exposed to the
Western science of international law, but it should not be supposed that they
were regarded as equals of the civilized states. They were not regarded as
participants in the full range of customary practices that had grown up in
Europe (and its offshoots) over the centuries. The ties were thinner, basically
consisting only of treaty relations.
The most outstanding sign of the secondary status of the barbarian states
was the phenomenon known as “extraterritoriality.” This is a somewhat
unfortunate term, as it might be thought to imply some sort of control by

one country over territory located in another. This was not so. “Extraterri-
toriality” referred to certain important privileges held by foreign nationals,
conferred by way of bilateral treaties. The principal privilege consisted of
the foreigners’ being exempted from the legal processes of the host country,
in favor of trial by officials of their home states instead. In principle, the
foreigners remained subject to the substantive law of the host country, but
not to its trial procedures. Sometimes the adjudication was conducted by
consular officials of the home state, so that the expression “consular juris-
diction” came into common use. In Egypt, there were “mixed courts” with
both Egyptian and Western personnel—but with the Western interest
predominating.
Extraterritoriality and consular jurisdiction were not inventions of the
nineteenth century. They had roots in the Middle Ages, when Europeans
established resident communities in the various major trading cities of the
Byzantine and Muslim worlds. These entailed the use, within these commu-
nities, of the law of the traders’ home states, rather than of the place in which
the settlement was located. The treaties granting extraterritorial privileges
in the Ottoman Empire were known as capitulations. The first of these were
granted to the cities of Ragusa and Genoa around 1400. The first one with a
major power was concluded in 1536, as part of the military alliance of that
year between France and the Ottoman Empire. Renewals of these agree-
ments were continually required, as they applied only during the lives of the
rulers concluding them. Finally, in 1740, France and the Ottoman Empire
concluded a capitulation of indefinite duration, which continued in force
into the twentieth century.
These arrangements proved readily extendable to the Far East. The pro-
cess began as early as 1727, when a treaty between China and Russia pro-
vided that disputes between members of Russian trading expeditions to
China would be dealt with by Russian officials. The pace picked up after the
conclusion of the “Opium War” between Britain and China in 1842. The
Treaty of Nanjing, which concluded the hostilities, did not provide for extra-
territoriality privileges. But they appeared in a set of resolutions promul-
gated soon afterward. The first appearances of extraterritoriality in treaty
texts occurred in 1844, in agreements that China concluded with the United
States and France, followed by one with Sweden three years later. Agree-
In Full Flower 317
ments with some twenty other countries were concluded over the next sixty
years. Extraterritoriality arrangements were not a European monopoly.
Peru, Brazil, and Mexico also possessed them, as did Japan following its vic-
tory over China in the Sino-Japanese War in 1894–95.
Extraterritoriality was applied elsewhere in the Far East. In 1855, Britain
became the first country to acquire extraterritorial rights for its nationals in
Siam. Various other Western states rushed to follow the British lead. The
process began in Japan in 1857, in a treaty concluded with the United
States. Here too, other countries soon followed.
Only in rare cases were extraterritoriality privileges reflected in geograph-
ically demarcated enclaves. The most famous of these was the International
Settlement of Shanghai in China. This dated from 1854, when a municipal
council was formed for the administration of areas of settlement of British,
American, and French residents. (The official label “International Settle-
ment” was adopted in 1863.) Nationals of many other states came to reside
there as well. The settlement territory always remained formally under Chi-
nese sovereignty, although in practice it became a self-governing area (with
British influence always dominant). There was never a unified law for the
area. Persons of each nationality continued to benefit from the extraterritori-
ality arrangement concluded between their respective home countries and
China. It is pleasing to report that the story of signs being posted saying “No
dogs or Chinese allowed” is a piece of urban mythology (although it is true
that Huangpu Public Garden in Shanghai was off-limits to nonsettlement
residents and also, inter alia, to dogs, in 1890–1928).
Attitudes toward extraterritoriality privileges varied in the countries that
were subject to them. In China, they were relatively uncontroversial (at least
during the imperial period, which ended in 1911). This was because of a long
Chinese tradition of regarding law as fundamentally personal rather than
territorial. In Japan, however, extraterritoriality rapidly became a source of
serious public resentment. But the Japanese government succeeded in bring-
ing the practice to an early end—the only country to do so prior to 1914.
Beginning in 1894, with Britain in the lead, the various Western states con-
cluded bilateral agreements with Japan discontinuing the regime of special
privileges. This development could be regarded as constituting, in effect,
Japan’s full admission into the ranks of the civilized states. Other extrater-
ritorial regimes continued well into the twentieth century.
The Savage World

Even more problematic than relations between the civilized and the barbar-
ian states were those between the civilized and the savage states, where even
treaty relations were frequently lacking. Some doubted whether there could
be any legal ties at all between the two groups of states. John Stuart Mill was
very candid on this point. “To suppose that the same international customs,
and the same rule of international morality” could prevail with savage na-
tions as with civilized ones was, he insisted, “a grave error.” The reason was
the absence of a common underlying principle of reciprocity, which was the
essential basis for the rule of law. As a result, according to Mill, no course of
conduct toward a savage state could ever constitute a violation of the law of
nations. Positivist lawyers tended to agree. More specifically, they were
inclined to hold that relations with the savage states were governed by con-
siderations of morality, but not of law, properly speaking.
The result of this way of thinking was to place questions of relations with
the savage states outside the conceptual framework of mainstream positivist
thought altogether. For this reason, nineteenth-century international lawyers
accorded remarkably little attention to the phenomenon of imperialism. In
fact, legal aspects of nineteenth-century imperialism in Africa, Southeast
Asia, and the Pacific remains a seriously underexplored subject to the present
day. The contrast with European imperialism of the fourteenth to seventeenth
centuries is very striking in this regard. It has been observed that, in the ear-
lier period, considerable attention had been given to legal issues. The expla-
nation, of course, lies in the fact that, in that earlier period, the dominant legal
framework was natural law—with its inherently universalistic ethos.
Nineteenth-century lawyers were largely content to engage in a classifica-
tion process regarding states that were less than fully sovereign (or merely
“quasi-sovereign,” to employ a term that came into use during this period).
Quasi-sovereignty came in various forms. Protectorates, for example, were
basically states that were internally self-governing but whose foreign rela-
tions were conducted by one of the major powers. The term was invented in
1815 to describe Britain’s oversight of the Ionian Islands in the Mediterra-
nean. Terminology was sometimes borrowed from medieval feudal law,
with some countries described as vassal states. “Suzerainty” was another
feudal import that was dragooned into the ser vice of nineteenth-century
In Full Flower 319
imperialism. It was, like so many of the terms, rather loosely used, generally
to mean that the subordinate state could act independently, but subject to an
obligation to do nothing incompatible with the interests or wishes of the su-
perior (or suzerain). Some countries were described as tributary states.
Sometimes, native states were nominally independent but with the rulers re-
ceiving “advice” from major powers. There were also “sphere of influence”
arrangements, in which powers agreed to allow one another a free hand,
without interference, in a designated area. These were essentially agreements
not to compete—but not involving any purported conferring of legal title.
Lawmaking in Action
It has been observed that, to the mainstream positivist lawyers of the nine-
teenth century, international lawmaking was a bottom-up rather than a top-
down process. The two principal mechanisms for this do-it-yourself law-
making were customary practice (suitably fortified by opinio juris) and
treaty making. There were some important innovations in the nineteenth
century, though. Most outstanding was the practice of concluding multilat-
eral treaties—a process that reached its highest pitch at the Second Hague
Peace Conference of 1907. There were also some who favored—and others
who opposed—the codification of international law itself.
Multilateral Treaties
One of the most striking features of the nineteenth-century international
legal scene was the prevalence of multilateral conventions. They were not
actually an invention of the nineteenth century, but their widespread use
dates from that period. Important early examples were the Treaties of Paris
of 1814–15. Prior peace arrangements at the conclusions of multistate wars
had generally consisted of sets of bilateral treaties. The earliest major multi-
lateral convention devoted to international law points was the Declaration
of Paris of 1856, which was a side initiative at the Paris Peace Conference of
that year (the chief task of which was to end the Crimean War). In providing
for the principle that “free ships make free goods,” the declaration was rep-
licating the common bilateral treaty practice of the European maritime
states over the previous two centuries. It also broke some new ground,
chiefly in its firm statement that privateering was abolished. The declaration
was highly successful in attracting support from other countries around the
world, attaining over forty ratifications. Significantly, the parties included
Britain, which had previously resisted the “free ships–free goods” principle
(on the ground that it unduly restricted the employment of British naval
power).
Soon after this, there were some important multilateral conventions on
war matters. These marked the first concrete steps in fulfi llment of Vattel’s
vision of a code of conduct that would govern warfare—and put an end to
the reliance on the principle of military necessity as the sole governing prin-
ciple in the laws of war. The first of these initiatives was a convention in
1864, drafted by the newly founded International Committee of the Red
Cross. It provided for the immunity of medical personnel on the battlefield
from attack. In 1868, some additional articles were concluded, further ex-
tending the protection. Then, in 1906, protection was extended to wounded
soldiers themselves, by imposing onto captor states a duty to care for
wounded enemy troops.
An international conference in St. Petersburg in 1868 produced another
interesting innovation. This was an international agreement on the prohibi-
tion of a weapon—something last done (or attempted) in 1139, when the
Second Lateran Council prohibited the use of crossbows (against Chris-
tians). The concern on this occasion was the possible development of ex-
ploding bullets. To forestall such a possibility, the conference issued a decla-
ration, in which all parties promised not to deploy such a weapon.
More important, by far, than this prohibition against exploding bullets
was a statement, in the preamble of the Declaration of St. Petersburg, of two
very general principles that were—and remain—of cardinal importance for
the laws of war. One was a general condemnation of “arms which uselessly
aggravate the sufferings of disabled men, or render their death inevitable.”
The other was a similarly general statement that “the only legitimate object
which States should endeavor to accomplish during war is to weaken the
military forces of the enemy.” That meant that, as a matter of fundamental
principle, war is to be waged only against the armed forces of the opposing
side and not against civilian populations. This continues, to the present day,
to be a cornerstone of the laws of war—if not always, sadly, of the practice.
In Full Flower 321
Multilateral conventions were not invariably about war. Rules regarding

undersea electric telegraph cables, for example, were concluded in 1884. A
conference in Berlin in 1884–85 dealt with various issues in the colonization
of Africa. Among the achievements of the conference was the establishment
of some general rules over future acquisitions of territory in Africa by the
imperial powers. Contrary to the belief of many, however, the conference
did not actually allocate identified areas to particular states.
Slave trading was another subject that (eventually) came under multilat-
eral scrutiny. There had been a general declaration on the subject at the
Congress of Vienna, although it had had no great practical effect. The Brit-
ish government acted against the Atlantic slave trade by concluding bilateral
treaties with various countries, allowing its naval vessels to visit and search
foreign ships suspected of transporting slaves (and then liberating any slaves
found). But concrete action at the multilateral level only came in 1889–90, at
a conference in Brussels. The Final Act established an International Mari-
time Office in Zanzibar and endorsed the visit-and-search practice.
A host of other walks of life came to be subjected to international regula-
tion of one form or another. In 1890, the major continental European states
concluded a convention on railway freight traffic. In 1904, a group of ten
European states drafted a treaty for dealing with the anarchist menace.
There were treaties, too, about the white slave trade, the safety of life at sea,
various aspects of public sanitation, and regulation of production and trade
in sugar. In addition, there were two treaties providing for humane treat-
ment of workers: one barring the use of white phosphorus in the production
of matches and the other prohibiting night work for women. An interna-
tional convention on automobile movement, concluded in 1909 by the major
European states, included such requirements as license plates indicating
state of origin. The formation of various international organizations in the
late nineteenth and early twentieth centuries has already been noted.
The Debate over Codifying International Law

The question of the codification of international law exposed some impor-
tant divisions within the international legal profession. In general, lawyers
of the positivist stripe inclined against it, on several different grounds. Some
objected to codification as a conservative, stultifying force. It would have
the undesirable effect of “freezing” international law into the state in which
it happened to stand at the par ticular point in time when the codifying was
done. From this standpoint, the modernist viewpoint of positivism was to
the fore. Positivists were frequently very conscious of international law as an
ever-growing, ever-evolving subject, requiring constant updating in the
light of ever-changing conditions in the real world. Jellinek was among
those who opposed codification on this ground.
At the same time, there were memories of codification as a standard tool
of natural lawyers, who, in the eighteenth century, had sought to remake
positive law along the rationalistic lines marked out by the speculative sci-
ence of systematic jurisprudence. Codification in this sense was designed
to remake law into a coherent, rational system free of gaps. But this was, of
course, precisely what positivists insisted that international law should not
be. International law, on the mainstream positivist view, was an assemblage
of basically contractual arrangements, a product of ever-changing human
will—and, as such, not susceptible, by its very nature, of being artificially
“tamed” or channeled into a single, neat intellectual system. More concretely,
it was objected that codification in this systematic sense would entail cross-
ing a crucial line: between, on the one hand, merely stating the law and, on
the other hand, making new law. Making new law, the positivists generally
insisted, is and must remain the prerogative of states and not of self-appointed
intellectuals, who were all too likely to pursue their own favored dogmas as
to what the law should be.
Despite these misgivings by positivists, some scholars set about produc-
ing codifications on their own initiative. The first major effort to encapsulate
international law into the form of a code of articles was by a German named
Alphonse von Domin-Petrushevecz, who, at the advanced age of twenty-six,
published a code in 1861. Shortly after this came the best-known private
codification, by Bluntschli in 1868, which covered the whole of international
law. His text took the form of a set of rules with a commentary on each—so
that the overall result was to create both a code of international law and a
general textbook on the subject. Fiore followed in this path in 1890. In
1872, David Dudley Field published his Outlines of an International Code,
which dealt in large part with private law matters, being fairly cursory on
the law governing interstate relations.
Codification also took a more modest form—of putting some selected
area of the law into order, rather than dealing with the whole of interna-
In Full Flower 323
tional law. The pioneering work in this sphere was Francis Lieber’s summa-
tion of the laws of land warfare, produced at the behest of Lieber’s friend
Henry Halleck, then commanding the Union armed forces. It was com-
pleted in 1863 and promptly promulgated by President Lincoln as a general
order to the Union armies. Lieber’s code attracted a great deal of interest
and admiration in Europe. For example, it was the immediate inspiration
behind Bluntschli’s codification of international law. It also inspired the
convening of a conference of legal experts in Brussels in 1874 who engaged
in a similar codification (known as a projet) of the laws of land warfare.
The most important codification work came from the Institute of Inter-
national Law. It produced a manual on the law of land warfare in 1880, and
one on the law of maritime warfare in 1913, as well as a manual on prize law
in 1882–83. Other notable topics that received the attention of the Institute
in the period prior to 1914 included diplomatic immunity, consular-court
jurisdiction in Asian countries, navigation of rivers, territorial waters (spec-
ifying a width of six nautical miles for territorial seas), contraband of war,
and the effects of war on treaties. Of particular interest were two sets of
rules that the Institute drafted in 1900 on civil wars—on injuries to foreign-
ers during civil conflicts and on the position of foreign governments in cases
of civil strife.
None of these Institute achievements had any official status, since the or-
ganization was a private body. They were not treaties between states, or laws
promulgated by governments. But the prestige of their drafters ensured that
careful attention would be paid to them in government circles. At the end of
the nineteenth century, though, and the beginning of the twentieth, a con-
certed effort was made to put small-scale codification efforts of this kind
onto a solid legal footing—and thereby to make a great step forward in the
process of what Oppenheim called “international legislation.” The most con-
spicuous initiatives along this line were the two Hague Peace Conferences of
1899 and 1907.
The Hague Peace Conferences

The earliest multilateral treaties, such as the Declaration of Paris, had typi-
cally been concluded by a small group of like-minded states—with the rest
of the world then cordially invited to adhere to the finished product. Only at
the very end of the century was the step taken of inviting the states of the
world in general to participate, en masse, in the drafting of international

legislation. This took place at the First Hague Peace Conference, held in
1899 at the instigation of the Russian government.
The first conference actually fell far short of including all countries. An
impressive twenty-six states were represented—but this included only three
from the Western Hemisphere (the United States, Mexico, and Brazil). The
major independent Asian states (China, Japan, and Siam), however, were pres-
ent. Bulgaria was permitted to attend, even though it was merely an autono-
mous region within the Ottoman Empire. (The Turkish government made no
objection to its attendance.) Moreover, in a significant acknowledgment of the
principle of legal equality of states, it was agreed that each country, regard-
less of size or strength, would have a right to equal representation with all
others on the various committees that were formed. It was also understood—
though not formally stated in any rules of the conference—that there would
have to be unanimous agreement of all states to any decisions (with the
proviso that abstentions would not prejudice unanimity).
A number of prominent international lawyers were present as “scientific
delegates.” The most prominent was Martens, the effective delegation leader
of the state that had initiated the conference. He was said to have “allowed
no one to forget that he enjoyed a reputation as Europe’s leading jurist in his
field.” Renault was on the French delegation. Philipp Zorn, then of the Uni-
versity of Königsberg, was the legal adviser to the German delegation. Present
for Austria-Hungary was Heinrich Lammasch, a law professor at the Univer-
sity of Vienna. The British delegation was led by Pauncefort (now serving as
ambassador to the United States). Ariga was present for Japan. On the Dutch
delegation was Asser, then serving as president of the Institute of Interna-
tional Law. Rolin-Jaequemyns’s son, Édouard (on his way to being a distin-
guished international lawyer in his own right) represented Siam, for which
he was acting as consul-general in Belgium at the time (during his father’s
employment in that country on government ser vice).
The chief accomplishments of the conference were in two areas. One (to
be considered presently) was dispute settlement. The other was the law
of war. On this topic, two conventions were concluded. One extended the
scope of the Geneva Convention of 1864 from land war to maritime war, by
providing for immunity of hospital ships from attack. Far more promi-
nent was the other convention: a codification of the laws of land warfare in
In Full Flower 325
general, which drew heavily on the Brussels projet of 1874. These Hague
Rules, as they appropriately became known, are still in force. The subcom-
mittee that did the drafting was presided over by Martens and included Re-
nault, Lammasch, and Rolin-Jaequemyns fils among its members.
One of the fiercest controversies that arose in the drafting of the Hague
Rules concerned entitlement to combatant status, the most contested issue
being the extent to which irregular forces, such as volunteer militia groups
or self-formed guerrilla bands, could lawfully exercise the rights of war. Dif-
ferences were papered over by a form of words proposed by Martens—and
known thereafter as the “Martens Clause.” This was an express acknowledg-
ment that the Hague Rules do not form a comprehensive code of law—and
that, regarding matters not codified in the rules, civilians and de facto bel-
ligerents must nevertheless be understood to remain “under the protection
and rule of the principles of the law of nations” in general. These “principles”
were, in turn, stated to arise from customary practices and also from “the
laws of humanity, and the dictates of the public conscience.”
The First Hague Peace Conference agreed, in addition, to three specific
restrictions on the conduct of war. One was a ban on the use of asphyxiating
gases in projectiles. The second was a prohibition against the use of expand-
ing bullets (“dum-dum bullets,” as they were commonly called, after the ar-
senal in India where they were most famously produced). The third was a
five-year ban on the launching of projectiles and explosives from balloons.
In 1907, the Second Hague Peace Conference was convened. This one
was a much more inclusive affair. Forty-seven states were invited, with forty-
four actually attending. This time, all of the Latin American countries were
present, except Costa Rica and Honduras (and even they appointed dele-
gates, who unfortunately failed to arrive in time). The government of Korea
sought to attend but was refused admission, on the ground that Korea was
not an independent state (it was under Japanese dominance).
As before, the “scientific delegates” included a number of prominent inter-
national lawyers. Several had attended the first conference, including Mar-
tens, Renault, Asser, Lammasch, and Rolin-Jaequemyns fils (this time repre-
senting his home country of Belgium). But a number of new figures were
present, too. On the American delegation was James Brown Scott. Repre-
senting Britain was Cecil Hurst, who was legal adviser to the foreign office
(and a future World Court judge). A young American named Ellery Stowell
was not on his own country’s delegation, but he made himself useful on be-
half of the newly created state of Panama. For Switzerland, Max Huber was
present—a future World Court judge and director of the International
Committee of the Red Cross.
Heading the Cuban delegation was a young, but experienced, lawyer
named Antonio Sanchez de Bustamante. He is surely without peer as a
youthful prodigy in the field. He became a professor of international law at
the University of Havana in 1884 at the ripe age of nineteen, by way of a
competitive examination. Perhaps academic life was in the blood, since his
father was a dean of the university. In all events, he remained on the Havana
faculty for the rest of his life. In 1902, he became a senator in his newly inde-
pendent country. He would later do long ser vice as a World Court judge.
The conference’s most theatrical figure was the Brazilian lawyer Ruy Bar-
bosa de Oliveira. He certainly had one of the more colorful backgrounds of
the conferees. A reformist journalist and politician, he served as minister of
justice and finance in the government that overthrew the Brazilian monar-
chy in 1889. He then became one of the drafters of the republican constitu-
tion of Brazil the following year. His time as fi nance minister was both
short-lived and disastrous, marked by an unstable currency and speculative
bubbles. After being accused of involvement in a naval revolt, he fled the
country but returned later and regained his former prominence. As Brazil’s
chief representative at The Hague, he impressed his fellow delegates by his
multilingual eloquence, earning the nickname “the eagle of the Hague.”
Most memorably, he became the spokesman for what would later be called
the developing countries, in whose cause he delivered a memorable oration
insisting on fi rm adherence to the principle of the equality of all states.
“[S]overeignty,” he proclaimed, “is the prime and elemental right of consti-
tuted and independent states. Therefore sovereignty signifies equality. In
theory, as in practice, sovereignty is absolute. It knows no grades.” So strik-
ing an impression did he make that, on his return to Brazil, he was given a
hero’s welcome. Two years later, he ran for president, putting his eloquence to
work in support of democracy and in strident opposition to military involve-
ment in politics. The campaign was unsuccessful, but it confirmed his status
as one of the most forceful personalities of his generation.
In this second conference, the role of Martens was less dominant than be-
fore, largely because of health considerations. The most prominent legal figure
In Full Flower 327
was Renault. In the admiring words of James Brown Scott, he came to be

“looked on as one set apart,” acting as “a trusted adviser, counselor and guide
of the entire Conference.” Scott hailed him as “the incarnation of the spirit and
purpose of the Conference.” As such, he transcended the parochial interests of
his country. “He came to the Conference a Frenchman,” averred Scott; “he left
it as a citizen of the world.” His stature received due recognition in the im-
mediate aftermath of the gathering, in the form of the Nobel Peace Prize.
Given the much larger and more varied attendance at this second confer-
ence, the principle of unanimity became strained to the breaking point. As in
the previous gathering, there was no formal rule on the point. But it was gener-
ally accepted that a requirement of unanimity flowed automatically from the
principle of the legal equality of states. In practice, though, the conference op-
erated on a basis described as “quasi unanimity.” This was never very precisely
defined. But the essence of it was that a substantial majority of states in favor of
something would be (somehow) deemed to constitute or signify unanimity.
One observer characterized this practice, with approval, as “a slightly veiled
transition to the principle of majority rule” in multilateral treaty drafting.
The bulk of the work of the second conference dealt with further elabora-
tion of the laws of armed conflict. In fact, so dominant were questions of the
conduct of war that some observers sourly commented that the gathering
ought accurately to have been labeled as the “Hague War Conference.” Some
slight alterations were made in the Hague Rules. The declaration barring the
launching of projectiles from balloons, which had expired in 1904, was rein-
stated, this time until the gathering of an envisaged Third Hague Peace Con-
ference. In addition, a dozen other conventions were drafted on various
aspects of armed conflict. One concerned the issuing of declarations of war
at the onset of hostilities. Two of the Hague Conventions dealt with the
rights and duties of neutral powers—one in land war and the other in mari-
time war. The convention on maritime neutrality was a disappointment, in
that it failed to resolve a number of issues relating to contraband, blockades,
destruction of neutral ships at sea by belligerents, and unneutral ser vice.
Other conventions dealt with more specific aspects of maritime warfare.
One covered naval bombardment in wartime, requiring the giving of prior
notice. Another contained several specific restrictions on capture at sea—
such as the exemption from capture of mailships and of fishermen. Con-
spicuously, however, the convention did not contain a complete prohibition
against the capture of private property at sea, as the majority of states

wished. The opposition of the major maritime powers kept it from being
adopted. Other conventions dealt with the status of enemy merchant ships
at the outbreak of war, the conversion of merchant ships into warships, and
the placing of mines at sea.
Progress was made on some of the unfinished business shortly afterward,
although only by abandoning the Hague Conference’s all-inclusive ap-
proach, in favor of a reversion to treaty making by major powers. This took
the form of the London Naval Conference of 1908–9, to which only the ten
leading maritime states were invited. As fully intended, the atmosphere was
very different from that of the much larger gathering at The Hague. The del-
egations made an impressive effort to resolve their many differences through
a series of compromises. It helped that the conference was under the able
chairmanship of Renault. The result was the Declaration of London, which
set out rules on contraband, blockades, captures of neutral ships, and a host
of other issues that had defeated the delegates at the Second Hague Confer-
ence. In the event, however, the declaration never entered into force be-
cause domestic political pressure led the British government (the foremost
naval power) to decline to ratify it.
Adjudication
Lawmaking was not the only business of international lawyers. Adjudica-

tion was another important task. The greatest advances in this area were in
the realm of arbitration. This phenomenon was hardly new on the world
scene, since it had been a feature of both ancient Chinese and Greek state
practice, as well as of the European Middle Ages. But it had largely fallen
out of fashion in recent centuries. A major landmark in its revival was the
work of the mixed-claims commissions established by the Jay Treaty of
1794. In the course of the first two-thirds or so of the nineteenth century,
a number of arbitrations took place, dealing with an array of specific issues.
The connection between arbitration and international law is not so close
as might be initially supposed. The reason is that arbitral decisions are not
necessarily made on the basis of law, as is the case (by definition) in true ju-
dicial resolution. Instead, the parties to the dispute determine the basis on
In Full Flower 329
which the decision will be reached. The parties also determine the selection
of the arbitrators, so that arbitral panels are, in a manner of speaking, the
servants of their creators rather than their masters. Several other factors
stand in the way of developing international law by way of arbitration. One
is that arbitral panels are assembled on an ad hoc basis for the resolution of
a single dispute and then disbanded. This precludes the building up of a
body of consistent case law. Since each panel is entirely independent of every
other, rulings by one are not binding on others. This makes the emergence
of inconsistent rulings possible. In addition, arbitrators are not necessarily
lawyers (and many were not, especially in the early part of the century). And
often the reasons given for the rulings were so sketchy as to be of little use
for the development of international law.
The position is somewhat different for mixed-claims commissions, such
as the ones established by the Jay Treaty. In these cases, it is usual for the
commission members to be experts in the law. Also, the fact that these com-
missions handle batches of cases, instead of single disputes, means that they
can build up a corpus of case law (as the Jay Treaty commissions did). The
most prominent of the mixed-claims commissions—and the most famous
deployment of international law in the resolution of disputes—of the nine-
teenth century were established by the United States and Britain in the Treaty
of Washington of May 1871. There were two of these. One concerned Brit-
ain’s legal responsibility (if any) arising from the fitting out of various Con-
federate warships in British ports during the recent American Civil War. The
other dealt with allegations, by each country against the other, of injuries to
nationals that occurred in the course of the Civil War. Most, but not all, of
these were claims by Britain for injuries to its nationals, frequently at the
hands of American blockading squadrons.
The principal arbitration, on the neutrality claims, was held in Geneva in
1872. Unfortunately, it did not go smoothly. The British member was so em-
phatic in his disagreement with the panel’s fi nding on the inadequacy of
Britain’s adherence to its duties as a neutral that he refused to put his signa-
ture to the ruling. The British government duly paid the award (of some
$15.5 million). But it disagreed so strongly with the panel’s holding that it
withdrew its support from the plan to invite the accession of other states to the
Washington Rules, pursuant to which the arbitration had been conducted.
The rules, accordingly, died a quiet death.
Despite this less than auspicious model, states became increasingly will-
ing, at least in principle, to submit their disputes to arbitration. In the fi nal
years of the nineteenth century and the early part of the twentieth, there was
a mushrooming of bilateral arbitration treaties between states. By 1914, over
three hundred are estimated to have been concluded. The United States
alone entered into some twenty-two in the two-year period of 1908–9. It is
small wonder, then, that Westlake could confidently assure his readers that
“international arbitration is in the air.”
It must be appreciated, though, that the air was somewhat less than pure
because these treaties typically contained important caveats. In particular,
three subject areas were widely excluded from the scope of the duty to arbi-
trate: questions relating to the independence of the states, issues affecting
“vital interests” or honor (potentially quite a broad category of matters), and
matters in which third parties had interests. Moreover, it was commonly
stated in arbitration treaties that the key decision of whether a given matter
fell into one of those excluded matters was a question for each state to deter-
mine on its own.
In the light of these restrictions, it is not so surprising that the actual pace
of arbitrations did not pick up as sharply as the number of agreements
might have indicated. Nevertheless, it has been estimated that, in the period
1794–1900, some 177 arbitrations took place, with just over half of these
concentrated in the period 1880–1900. If nothing else, these deliberations
greatly enhanced the employment prospects of international lawyers, both
as arbitrators and as counsel for the disputing parties. It has been ob-
served that the ser vices of Martens and Renault were in especially high
demand.
The Permanent Court of Arbitration

One of the major achievements of the First Hague Peace Conference was the
conclusion of the Convention on the Pacific Settlement of Disputes, largely
drafted by Martens. This convention’s primary achievement was to pro-
vide for what is sometimes called the world’s first international court, enti-
tled the Permanent Court of Arbitration (P.C.A.). The label “permanent”
seems appropriate, as the institution continues to exist to the present day.
The word “court” was less happily chosen, for two reasons. One is that the
In Full Flower 331
arrangement was really for arbitration, and not necessarily for judicial set-
tlement. The other reason is that the P.C.A. was not—and still is not—a
standing court with a continuous existence. Rather, it is a roster of names of
persons who are prepared to act as arbitrators as and when they might be
called on. But any given panel, once it has discharged its task, is disbanded,
and its members melt back (so to speak) into the general roster, to await a
future summons that might, or might not, come. Martens aptly described the
so-called court as “but an idea which occasionally assumes shape and then
disappears.” The P.C.A. is therefore best thought of as the world’s first per-
manent arrangement for the judicial or arbitral settlement of disputes.
An important point of contention concerned the giving of reasons by ar-
bitrators. It was generally accepted that, in judicial dispute resolution, rea-
sons must be stated when judgments are given. This is seen as an inherent
feature of the judicial function as such. But that was not so widely agreed
regarding arbitration. Martens, for example, was strongly opposed to a gen-
eral rule requiring arbitrators to give reasons. His rationale was that the
unanimity of arbitrators was more important than the giving of reasons,
and that setting out reasons could have the undesirable effect of eliciting
dissenting opinions from arbitrators who might otherwise have quietly ac-
quiesced. This position did not prevail in the draft ing of the P.C.A. Conven-
tion at the First Hague Conference, but it indicates an important distinction
between arbitration and judicial settlement.
The Dispute Settlement Convention entered into force in 1900, and the
P.C.A. roster soon became a kind of global Who’s Who of prominent inter-
national law academics. Business, however, was less than brisk. By the time
the Second Hague Peace Conference convened in 1907, P.C.A. panels had
decided only four cases.
Other Courts
The establishment of the P.C.A. left a great deal to be desired in the eyes of
those who hoped to see the emergence of a true world judicial body. This
group included Martens. In the years prior to the Great War, three attempts
were made to create standing international courts—all of them, however,
without lasting success. Two of these took place at the Second Hague Peace
Conference, and one shortly afterward.
The first of the initiatives at the Second Hague Conference was for the
creation of an international prize court, which would hear appeals from
prize courts of belligerent states. One of the most contentious issues was
how the judges were to be selected. After some considerable discussion, it
was agreed that there were to be fi fteen judges, serving six-year terms. Eight
of these were to be appointed by the eight major powers, with the other
seven being selected according to a rota that was annexed to the convention.
A state that was party to a dispute was guaranteed a right to have a judge of
its choosing on the bench, by way of substitution for one of the judges on the
rota. The justification for the privileged position of the eight major powers
was that, as the world’s chief maritime states, they would be expected to be
involved in by far the majority of cases.
Thirty-three states signed the Prize Court Convention. But substantial
opposition soon emerged. A principal legal foe of the court in the interna-
tional legal community was T. E. Holland, the professor of international law
at Oxford University. He objected to the authority that the court would have,
in cases where a specific rule of law was lacking, to decide the matter on the
basis of “general principles of law and equity.” Holland feared that this provi-
sion would enable the court to impose new, and unacceptable, restrictions on
British naval practices. In the event, the opposition prevailed. The British
parliament barred ratification of this convention (along with the Declara-
tion of London). So the proposed court was stillborn.
The other project at the Second Hague Peace Conference fared even less
well. This was for the establishment of what was to be called the Court of
Arbitral Justice, which would differ from the P.C.A. in two important ways.
First, it would be designed specifically for the determination of disputes by
application of international law. Second, it would have a permanent and
continuing bench of judges, in the manner of national courts. The parties to
a case would therefore have no right to determine the members of the
bench—apart from a guarantee that the litigating parties would always have
a right to appoint a judge. It was not envisaged that the court would have
compulsory jurisdiction. It could hear only cases that parties to a dispute
chose to submit to it.
The major—and ultimately insurmountable—problem was an inability of
the states to agree on the selection of the judges. Some delegations con-
tended that each party to the convention should have the right to appoint a
In Full Flower 333
judge, with some procedure devised for allocating judges to individual

cases. Others maintained that the number of judges should be small enough
that most (or all) of them would sit on all cases, so as to enable the court’s
case law to have a strong element of continuity. Small states were reluctant
to agree to this, on the thesis that major powers would always have judges of
their nationality on the bench (de facto if not de jure), leaving too little scope
for the rest of the world. As a result of this disagreement, the draft conven-
tion was simply silent on the point. It was hoped that the vexed question
could be resolved after the conference by negotiations between the various
states. This did not prove successful, though, so this proposal also failed to
bear fruit.
The third plan for an international court did achieve a modicum of suc-
cess. It was drawn up in 1907, but not at the Hague Conference. At a gather-
ing in Washington, D.C., the U.S. government induced the five countries of
Central America to conclude a series of treaties to bring peace to the region.
One of the arrangements has already been noted—the adoption of the Tobar
Doctrine on recognition of unconstitutional governments. In addition,
one of the conventions provided for the establishment of a Central Ameri-
can Court of Justice. It even allowed cases to be brought before the court
by private parties, as well as by states. The following year, the court began
operations in Cartago, Costa Rica—the very first standing international
tribunal in the history of the world. In its first year in operation, it adjudged
Guatemala and El Salvador to be responsible for instigating a revolution in
Honduras.
The Central American Court did not, however, have either a long or a
happy existence. A dispute that arose in 1914 brought it to an inglorious end.
The contention concerned a treaty between the United States and Nicaragua
on the construction of a transisthmian canal and naval base. The govern-
ments of Costa Rica and El Salvador objected that various rights of theirs
would be infringed. After a judgment in favor of these claims in 1916–17,
Nicaragua withdrew from membership of the court. The American govern-
ment joined it in refusing to recognize the decision. This controversy brought
the court’s career to an end, and it was officially dismantled in March 1918.
The world therefore had to wait before it had a truly permanently existing
international court. Some material progress was made, though, in the form
of bricks and mortar, compliments of Andrew Carnegie. In 1907, during the
progress of the Hague Conference, the cornerstone was laid for a Peace Pal-
ace, to house the P.C.A. Carnegie also financed the construction of the Cen-
tral American Court of Justice building—which carries on, though now in
humbler ser vice as part of the San Luis Gonzaga High School in Cartago.
The Peace Palace was a more fortunate project. Completed in 1913, it still
houses the P.C.A., along with the later-created World Court.
Enforcement—and Unrest
“Rights without remedies are no rights at all,” runs a venerable American

legal cliché. In the eyes of many, law is hardly worthy of the name if no en-
forcement mechanism is available. Austin certainly thought this, in placing
the presence of a sanction at the center of his theory. It has been observed
that the empirical wing of positivism similarly gave a high priority to the
presence of sanctions against wrongdoers. The distinctive thing about
international-law sanctions is that they were of a self-help character. There
was no alternative, given the absence of a global sovereign or world police
force. It was accordingly up to injured states to inflict negative consequences
onto countries that had wronged them, as best they could. Sanctions mea-
sures could be peaceful, taking such forms as suspending the performance
of a treaty obligation, downgrading or severing diplomatic relations, or in-
stituting some kind of economic measure such as a trade boycott or ban on
investment. But enforcement actions could assume more vigorous forms,
too, such as a resort to “reeking tube and iron shard” (in the words of the
British poet Rudyard Kipling).
Enforcement measures involving armed force fell into the legal category
known as measures short of war. These typically took the form of armed
reprisals, such as blockades, or of punitive expeditions. It is an aspect of in-
ternational law that has been curiously understudied, for several reasons.
One is that enforcement action occurred sporadically, without forming any
discernible pattern. Another reason for the neglect is that the political sig-
nificance of these actions was often not very high.
The wrongs, or alleged wrongs, that elicited armed responses were of
varying kinds. In 1885, France took naval action against China, in the form
of a blockade of Formosa, in response to alleged Chinese support for an
In Full Flower 335
anti-French insurgency in the Tonkin region of Vietnam. As had been the

case since time immemorial, mistreatment of diplomats could provide the
spark for armed action. The French conquest of Algeria, for example, was
triggered by the “fly-whisk incident” of 1827, when an Algerian official alleg-
edly struck a French official with the object in question. A similar incident
took place between the United States and Nicaragua in 1854 (although not
leading, in this case, to long-term annexation). After an American diplomat
was assaulted in the course of a mob disturbance in the port of Greytown on
the Caribbean coast, an American warship was dispatched. When a suitable
apology was refused, the American commander proceeded to bombard the
town, totally destroying it, albeit without any loss of life.
The single most common cause of armed reprisals, however, was an alle-
gation of injury of some kind to nationals of the enforcing state. A notable
early example was American action against the “Barbary Pirate” state of
Tripoli in 1801–5, in response to depredations against American nationals.
Mistreatment of French nationals in Argentina led to a naval blockade of
Buenos Aires by France in 1838–40. It has been noted that the “Opium War”
in 1839–42 was sparked by alleged mistreatment by Chinese authorities of
British nationals accused of crimes. The allegedly unlawful boarding of a
British ship by Chinese authorities in 1856 led to a further round of hostili-
ties, which culminated in the notorious sacking of the Summer Palace of
China four years later by British forces. In 1863, the United States and
France took action against the rogue Japanese principality of Choshu, when
it began a policy of firing on foreign ships passing through the Strait of Shi-
monoseki. The death of five American sailors led to an armed response, re-
sulting in the sinking of two Choshu ships. The French formed a landing
party, which burned a village and destroyed a gun battery. It has been ob-
served that the American expedition against Korea in 1871 was in response
to the killing of some American seamen some years earlier.
One of the most famous examples of armed force deployed on behalf of
injured nationals involved Great Britain and Greece in 1850. A British sub-
ject named Don Pacifico was apparently plundered by a mob in Greece—
with Greece then accused by Britain of being remiss in providing appropri-
ate protection. When the Greek government declined to pay compensation,
the British government dispatched a naval squadron to blockade Greek
ports and compel Greece to come to terms. This act sparked considerable
political controversy in Britain, but it had the intended effect. The Greek
government agreed to arbitration, to quantify the losses suffered by Don
Pacifico. The arbitral commission, however, valued the losses at only
£150—as against the original claim of over £21,000.
Less famous, but perhaps more entertaining, was the “Pastry War” be-
tween France and Mexico in 1838. After a French pastry cook claimed that
his shop had been looted by Mexican soldiers, his government demanded an
indemnification of 600,000 pesos. When this was not forthcoming, a French
fleet blockaded the Caribbean ports of Mexico, bombarded a fort, and even
briefly occupied the city of Veracruz. Far from giving in, the Mexican gov-
ernment escalated the crisis by declaring war. The dispute was eventually
resolved the following year, with a peace treaty that provided for the sought-
after compensation.
One of the largest-scale European interventions, by Britain in Egypt in
1882, was similarly justified by protection of nationals. After a nationalist
government took power in Egypt, there was widespread antiforeigner riot-
ing, with some fift y deaths. The British responded initially with a daylong
naval bombardment of Alexandria, followed up by a full-scale military in-
vasion that toppled the unfriendly government. The longer-term effect was
to turn Egypt into a de facto protectorate of Britain.
Debt defaults by developing countries were frequent causes of forcible ac-
tion by the more powerful states. This was the case in the single most impor-
tant of all of the incidents short of war for the period, from the legal stand-
point: the joint naval action taken against Venezuela in 1902–3 by Britain,
Germany, and Italy. This succeeded in persuading the Venezuelan govern-
ment to agree to have the various claims against it quantified by a series of
mixed-claims commissions. (The commission dealing with the U.S. claims
disallowed 99.5 percent of them.) An unseemly squabble then ensued among
the creditor states as to whether the three blockading powers were entitled to
receive preference in payment. A P.C.A. arbitral panel (which included Mar-
tens and Lammasch as members) held, controversially, that they were.
Armed interventions short of war sometimes occurred in slightly differ-
ent contexts, too, such as the rescue of nationals. A classic instance of this
occurred in 1868, when several British nationals, including a consular offi-
cial, were held captive at the court of Emperor Theodore of Ethiopia. A Brit-
ish force went to their rescue—in the process, destroying Theodore’s capital
In Full Flower 337
and killing the emperor himself. The most famous of these rescue missions
was the one mounted in 1900 during the Boxer Rebellion in China, for the
benefit of 3,200 people besieged in the foreign legation quarter of Peking.
(Some 76 of them died in the siege, with about 180 others being wounded.) An
unprecedented alliance of European powers, joined by the United States and
Japan, formed a multinational force some 18,000 strong to rescue the legation
residents. The result was the defeat of the Boxer movement and the restora-
tion of effective power to the Chinese imperial dynasty—plus the imposition
of a $337 million indemnity onto China.
Backlash
It could not escape the attention of even the most casual observer that inter-
national law enforcement by way of armed reprisals was a prerogative exclu-
sively of major military powers, with poor and weak states almost invariably
on the receiving end. It was sometimes ominously difficult to distinguish
between bona fide law enforcement and imperial swagger. London theater
audiences were given a vivid illustration of this in 1899, in George Bernard
Shaw’s play Captain Brassbound’s Conversion, a satirical portrayal of a res-
cue by British armed forces of captive Europeans in Africa.
In a more sober vein, international lawyers in Western countries tended
to insist that the underlying legal principles were sound: that international
law imposed certain standards of conduct onto countries—and that those
standards could not be violated with impunity. Former American Secretary
of State Root, for example, stated in 1910, in a matter-of-fact tone, that it is
“an international custom” for powerful countries to intervene to protect
their nationals abroad, even though this necessarily involves “an impeach-
ment of the effective sovereignty” of the host country. Root did caution that
this customary right should not be lightly exercised. It should only be re-
sorted to if there are “unquestionable facts which leave no practical doubt of
the incapacity of the government of the country to perform its international
duty of protection.” But in the final analysis, he insisted, the right to take
armed action on behalf of nationals abroad cannot be denied.
The question of entitlement to self-help remedies against misconduct was
closely allied to the issue—also highly controversial—of what substantive
standard of conduct foreigners were entitled to expect from host countries.
It has been observed that liberals tended to insist on the existence of an in-
ternational standard of conduct. Positivist lawyers—with Calvo as their
most prominent champion—opposed this, in favor of a sovereign right on
the part of each state to set its own standards within its territory. Foreign
visitors have only a right not to be discriminated against.
In 1902, it was proposed that this Calvo Doctrine be supplemented by a
new, and more narrowly directed, proposition. The initiative came from
Luis María Drago, the foreign minister of Argentina. In response to the
blockade instituted against Venezuela that year, Drago asserted that the use
of armed force to collect state debts was contrary to the principles of Ameri-
can (i.e., Western Hemisphere) international law. He afterward expanded
this into a “Drago Doctrine,” which asserted that coercive enforcement mea-
sures can never be taken against states in cases of sovereign indebtedness.
According to Drago, this merely reflects a key inherent attribute of state
sovereignty: immunity from measures of execution (though not necessarily
of adjudication).
The nearest that the Drago Doctrine came to realization during this pe-
riod was the adoption of the Porter Convention at the Second Hague Peace
Conference (named for the American diplomat, Horace Porter, who was its
chief advocate). It was a gesture in the direction of the Drago Doctrine. It
prohibited the use of armed force in cases of government debt owed to pri-
vate parties—but not absolutely, as Drago had advocated. Coercion could
still be used if the debtor state either refused arbitration in the matter or
failed to carry an arbitral decision into effect. Because of these key provisos,
the Porter Convention was a grave disappointment to Drago (who was a del-
egate to the conference) and to his supporters. Of Latin American states,
only Mexico became a party to the Porter Convention. Nevertheless, the
Porter Convention has—and merits—a modest place in the history of inter-
national law, as the first multilateral treaty to place a legal limitation onto
the resort to armed force.
Fin de Siècle
All in all, international lawyers could—and did—take pride in having done
much to make the world more orderly in the course of the nineteenth cen-
tury. They even made it safer, to the extent that arbitration reduced the pos-
In Full Flower 339
sibility of armed conflict between states. With some considerable justifica-

tion, there was optimism in the air. International law was lauded by Woolsey
as “right and humanity on a great scale.” Sometimes it seemed that opti-
mism was a de facto prerequisite for membership in the international legal
community. Oppenheim, for example, asserted that a person “is not prop-
erly fit to work at the science of international law” if he lacks “a deep-rooted
faith in the progress of the nations towards peace and civilization.” There
was a discernible trace of the contemporary ethos of “muscular Christian-
ity” in Oppenheim’s praise of international law as an “all-powerful force of
the good which pushes mankind forward.”
There were inevitably those—even within the international legal
profession—who lamented that too little had been done. One of these was a
German lawyer named Walther Schücking, who was a professor at the Uni-
versity of Marburg. As a pacifist, a political liberal, and an overt sympa-
thizer with natural law, he was far from the mainstream of his profession.
He was even something of a figure of ridicule. Even he, though, was a
resolute optimist, seeing the Hague conferences as the first steps in a broad
movement to eventual world federation. At the same time, he regretted
the timidity of positivist lawyers, whose horizons he thought to be too nar-
row for the challenges—and opportunities—that lay ahead.
What lay ahead was cataclysmic war, in 1914–18. International lawyers
did not start the Great War, of course. But their advice was indispensable to
the belligerent governments as Europe was transformed, almost overnight,
from a “house of peace” into a “house of war.” Erich Kaufmann, consistently
with his robust views on the value of war, did ser vice for Germany as a sol-
dier in the ranks. At the other end of the political and military scale, Heinrich
Lammasch, after being in danger of arrest early in the conflict for pacifist
tendencies, became minister-president of Austria at the end of the conflict. In
that grand capacity, he had the distasteful task of advising Emperor Charles I
to abdicate his throne (Lammasch being a strong monarchist as well as a
pacifist). The wartime ser vice of most international lawyers lay between
these two extremes—advising governments and armed forces, exposing the
illegal ways of dastardly enemies, and so forth. The role of international law-
yers in the various wars of history is another of the many subjects that still
awaits a detailed treatment. Our attention will turn to a postwar world that
faced a largely new generation of international lawyers.
IV
Between Yesterday
and Tomorrow
(1914– )
International law is still a very rudimentary system, with vast
barren stretches between small cultivated areas.
—Wolfgang Friedmann
In 1933, the English author and public intellectual H. G. Wells penned a

futurological novel—actually more of a political tract—entitled The Shape of
Things to Come. It provided a vision of what the international scene would be
like in the late twentieth and early twenty-first centuries. The world was envis-
aged to be united into what was called, somewhat blandly, the Modern State,
inaugurated in 1965 at a conference in Basra, Iraq. The impetus for the found-
ing was a cataclysmic war that was predicted to begin in Europe in 1940 and
to be sparked by a conflict between Poland and Germany. The destruction
wrought by that struggle would be the inducement for global unification.
It did not work out quite like that. The cataclysm was impressively fore-
seen, even to the precipitating clash and a near-perfect guess as to the year.
But there was little evidence of the world state. Through all the vicissitudes
of the twentieth century, the principle of the sovereign equality of states
stubbornly survived. World wars, nuclear weapons, and genocide were un-
able to dislodge it. Sharp-quilled lawyers brought their own specialized
doctrinal weapons to bear on it. But it survived, and even flourished. The
League of Nations and the later United Nations (UN), far from attacking
state sovereignty, accorded it the highest degree of respect.
In short, the period from about 1910 to the present was a time of much
continuity with the past in the realm of international law. Intellectually, the
century was less heroic than its predecessor. There was less in the way of
blazing new trails—though much in the way of building on existing ideas.
In terms of action on the ground, however, the picture was radically differ-
ent. The century would witness a bewildering host of initiatives in all areas
of the subject. One of the most visible signs of this vibrancy was the estab-
lishment, at last, of a standing World Court, to adjudicate claims between
states in much the manner of ordinary courts hearing disputes between
private parties. After the Second World War, there was even the specter of
international criminal tribunals, for the prosecution and punishment of
persons whose misdeeds threatened the world at large rather than just their
local neighborhoods.
344 Between Yesterday and Tomorrow (1914– )
The states of the world became a drastically more diverse lot than had
been the case in the age of the Hague Peace Conferences. The collapse of
four great multinational empires in 1917–18 brought a swarm of new states
into existence—with an array of legal challenges to accompany them. These
were hugely reinforced after World War II when decolonization brought an
even more dizzying enlargement in the number (and variety) of sovereign
states, ranging in size from India and Indonesia at one end of the scale to
Nauru and Dominica at the other. And all were sovereign and equal—or at
least vociferously insisted that they were. Growth did not stop there. A fur-
ther influx of new states accompanied the breakup of the Soviet Union in
the 1990s, at the conclusion of the Cold War.
In some important respects, these changes reinforced old ways of thinking
rather than challenging them. Socialist countries, along with newly indepen-
dent ex-colonies, proved to be devoted to mainstream positivist ways
in international law. In addition, though, two of the three heterodoxical ap-
proaches from the nineteenth century—liberalism and solidarism—came
fully into their own in the modern era. In the case of liberalism, this was
most obvious in the advance of human rights to a prominent position in
international law, even if actual observance of this law was less than
wholehearted on the part of many governments. Solidarism was not so much
a unified school of thought as a general seedbed from which a diverse bou-
quet of exotic blossoms emerged.
It cannot be said that these developments brought universal pleasure. Many
people regarded them with misgivings—some with better reasons than oth-
ers. German and Japanese political and military leaders who were responsible
for the ghastly atrocities of the Second World War, for example, cannot have
been pleased to see important advances in the enforceability of interna-
tional law. Nor could the leaders of North Korea in 1950–53 or Iraq in 1990–
91. Nor were they alone. As international law grew in strength, it intruded
into more and more areas that had been the exclusive preserve of states—
and it correspondingly roused increasing misgivings and opposition. Inter-
national law has never had an easy time—and it certainly did not in the
century after 1914.
chapter nine
Dreams Born and Shattered
n  , the world was treated to a vivid demonstration of two contrasting

I ways of enforcing international law. They could be called the old way and
the new. In both cases, the state of Germany played an unwilling starring role,
as an accused lawbreaker, with the Treaty of Versailles providing the relevant
law in both affairs. In both, France stood in the accusatory role (with com-
pany). There were some differences, too. One of the cases is famous, and the
other virtually unknown (at least to nonlawyers). In one of them, the legal ele-
ment was extremely obvious, and in the other one, much less so.
The famous incident was the occupation of the Ruhr Valley by the armed
forces of France and Belgium. To the naked eye, this did not look like a legal
proceeding, but it was. It was a reprisal action—a measure short of war—in
response to an alleged legal wrong committed by Germany. As such, it was
a stellar illustration of traditional law enforcement by way of self-help—
although the action was exceptional in being taken against a major power.
The alleged wrong was a default in reparations payments. The spectacular
consequences are well remembered. A German passive-resistance campaign
began, which included a resort to printing huge amounts of paper currency—
leading to one of history’s most notorious episodes of runaway inflation,
estimated to have peaked at a rate of about 3.25 million percent per month.
Less prominent in the public eye, by a large margin, was a debate among
international lawyers as to the lawfulness of the French and Belgian action.
It was argued by some that a reprisal against Germany for a violation of the
Versailles Treaty could be taken only by all of the treaty parties collectively,
or at least by all of the principal Allied powers, and not by two of them alone
and self-selected.
The other case was considerably less dramatic—but arguably of more last-
ing significance. It took place not in the streets and towns of the Ruhr, but in
the marbled hallways and paneled courtroom of the Peace Palace in The
Hague. This was the new-fangled way of enforcing international law. At the
newly established World Court, Germany was being accused of violating its
obligations under the Versailles Treaty by refusing passage through the Kiel
Canal to a ship named the Wimbledon. At the time, the Wimbledon was
carry ing war supplies to Poland, for use in that country’s ongoing conflict
with Russia. On this occasion, there was no armed response by the offended
Allied powers. Instead, they brought a lawsuit against Germany—the very
first contentious case to appear on the World Court’s docket. In August
1923, Germany was held liable and assessed damages to France of some
140,000 francs (French nationals having been the charterers of the ship).
In certain respects, it is fit and proper that the Wimbledon case has made
so little impression on historians or general readers. Legal processes work
more smoothly when they are kept well away from the shrill cries of parti-
sans and the frenzied indignations of a vengeful press and outraged public.
If all disputes could be resolved in the hushed calm of courtrooms rather
than the swirling world of political cut-and-thrust, then civilization could
be said to have taken a giant and noble forward stride.
The post–World War I era was a time when the world dared to dream that
such a giant step could actually be taken—and was even in the very process
of being taken. Even amid the shock and disillusionment of the wartime
years, there had been glimmerings of hope from international lawyers—a
band of famously hardened optimists. The German lawyer Franz von Liszt
expressed cautious confidence that the end of the conflict would bring not
merely an armistice, but “a lasting peace,” in which a “new international
law” would offer stronger safeguards to peace than had previously been the
case.
To some extent, this optimism was borne out. Images of the interwar pe-
riod have it as a time of failure, vindictiveness, disillusion, and Depression.
These features were certainly not lacking. From the standpoint of interna-
tional law, however, it was an era of hope, innovation, creativity—and sharp
controversy. It was an immensely rich period, both in practice and in doc-
trine, animated by a conscious awareness of new ground being broken, new
structures built, and new territory explored. International law and its prac-
Dreams Born and Shattered 347
titioners may not have prevented a Second World War from erupting. But
they made many other—often little noticed—advances.
Peace and Punishment
The Paris Peace Conference of 1919 was a star-studded affair by any

standard—a worthy successor to the great peace conferences of the past,
such as Westphalia in 1648 or Vienna in 1815. It resembled the Congress of
Vienna in its ambitious aim to effect a nearly continent-wide redrawing of
political boundaries and to put in place a settlement that would be long-
lasting. The new gathering was greatly different from its predecessor,
though, in one key respect: that legal issues played a far greater role now
than they did a century earlier.
It was fitting, then, that a considerable number of eminent international
lawyers were present. Some were veterans of one or both of the Hague Peace
Conferences. James Brown Scott, for example, was on the American delega-
tion. Cecil Hurst was present for Britain, as he was still the legal adviser to the
foreign office. Bustamante represented Cuba. And Édouard Rolin-Jaequemyns
was secretary-general of the Belgian contingent. But there were signs, too, of a
generational change within the profession, as many of the leading prewar
figures were no longer on the scene. Several had died shortly before the war,
including Martens, Westlake, and Fiore. Others died during the conflict or
immediately afterward—including Renault, Oppenheim, Lammasch, Las-
son, Lawrence, and Liszt.
A number of the most prominent political figures at the conference had
experience of some kind in international law. The most notable of these, by
some margin, was a former professor of political science and public law (in-
cluding international law) named Woodrow Wilson, now applying his learn-
ing to practical affairs as president of the United States. In addition, several of
the foreign ministers had significant international-law backgrounds. Robert
Lansing, Wilson’s secretary of state, was one. As a law practitioner, he had
had much experience with international arbitrations. Another was the for-
eign minister of Greece, Nicolas Politis. A former student of Renault’s, he
became a law teacher in France but was then plucked from this obscure life
by Prime Minister Eleuthérios Venizelos of Greece in 1913 to serve in the
Greek foreign ministry. By 1916, he had been made foreign minister. He

would be a major figure in international law and diplomacy of the interwar
period. The foreign minister of Uruguay, Juan Antonio Buero, was another
former law professor, as well as a future legal adviser to the League of Na-
tions secretariat. (Buero also helped to found the World Cup tournament in
soccer, the first of which took place in his country in 1930.)
A number of other international lawyers were present at the conference in
more modest capacities. Advising the American delegation was Manley O.
Hudson, a professor at Harvard Law School (and future World Court judge).
David Hunter Miller was another legal adviser to the American delegation.
He would leave a valuable account of the drafting of the League of Nations
Covenant. Anzilotti was present on the Italian team. A member of the
French delegation was La Pradelle, a professor at the University of Paris.
Among the German delegates—a decidedly low-profi le group—was Wal-
ther Schücking, who also helped to draft the constitution of the Weimar
Republic and would later sit on the World Court. On the Belgian delegation
was Charles de Visscher, a law professor at the University of Ghent and fu-
ture World Court judge. Representing China was a young man who had
been educated in the United States, named Wellington Koo, of whom much
would be heard later. The legal adviser to the Polish delegation was Bohdan
Winiarski, another future World Court judge. The Ecuadorean delegation
boasted Carlos Tobar, of Tobar Doctrine fame.
The Brazilian delegation had a most interesting conference. The obvious
choice to lead it was Ruy Barbosa, who had been an outspoken champion of
the Allied cause during the war, but he declined to serve. His place was ac-
cordingly taken by Epitácio da Silva Pessôa, a former justice minister, attorney
general, and Supreme Federal Tribunal justice. During the Paris Conference,
a snap presidential election was called, in which Barbosa emerged as the lead-
ing candidate. In a desperate effort to keep that mercurial and independent-
minded figure out of the presidency, his many foes rallied around a single
opposition figure: Pessôa, who duly won the election while serving in Paris.
Pessôa would later become a judge on the World Court (in succession, ironi-
cally, to Barbosa).
Altogether, ten future World Court judges were present at the Paris Con-
ference. That was just as well, for there was no shortage of legal work to be
done. In contrast to the Hague Conferences, which were chiefly concerned
with lawmaking and dispute settlement, the chief legal task now was pun-
ishment for wrongdoing. To advise on issues in this area, the Allied govern-
ments established a body called the Commission on the Responsibility of
the Authors of the War and on the Enforcement of Penalties. It consisted of
fifteen persons, including Scott, Lansing, Rolin-Jaequemyns, and Politis. Its
general secretary was La Pradelle.
The Commission reached three principal conclusions. The first was that
the blame for the outbreak of the war rested primarily on Germany and
Austria-Hungary, and secondarily on Bulgaria and Turkey. The second ma-
jor conclusion concerned the question of personal responsibility of the Ger-
man leadership for causing the war. The Commission recommended against
placing high-level figures on trial, on the ground that the planning of ag-
gressive war was not actually a war crime. A war crime in the legal sense,
the Commission concluded, is a violation of the rules on the conduct of
hostilities after a war was under way. It went on to state, however, that penal
sanctions against political leaders who resorted to aggressive war were “de-
sirable.” The Commission’s third conclusion was that enemy nationals ac-
cused of war crimes properly speaking should be tried by panels established
by the Allied powers. Vigorous objections to this plan were voiced by Lan-
sing and Scott, who contended that the trial of war criminals could be un-
dertaken only by the defendants’ own state, not by the opposing victorious
side.
The Allied governments accepted the Commission’s findings. The respon-
sibility of Germany as a state for the conflict became the famous “war guilt”
clause of the Treaty of Versailles. It was an implicit finding that the war
had not simply been a clash between rival interests—in the manner of the
positivist view of war—but instead had been, in some sense, an illegal act of
aggression on the part of the German state. As in the case of any illegal act,
the consequence was a duty on the part of the culpable party to compensate
those who were injured. There was certainly no shortage of these, after four
years of carnage. The task of quantifying the damages (or “reparation,” in
technical legal terminology) was assigned to a commission, which later set-
tled on the famous figure of 132 billion gold marks (about $33 billion).
As for the personal liability of individuals for illegal acts, provision was
made (as the Commission recommended) for war crimes trials by the victo-
rious powers. For the German political leadership, a somewhat different fate
was planned, since the Allied governments accepted the conclusion that the
planning of aggressive war was not a criminal offense in international law. It
was decided, though, that a “special tribunal” should be convened to try ex-
Kaiser (as he now was) William II for what was described as “a supreme of-
fence against international morality and the sanctity of treaties.” (By
“sanctity of treaties” was chiefly meant the violation of the neutrality of
Belgium and Luxembourg.) The Council of the Allied Powers explained to
the German delegation that the envisaged proceeding “has not a judicial
character” and that William was “arraigned as a matter of high interna-
tional policy.” In fact, this whole exercise was somewhat theoretical, since
the ex-kaiser had fled to the Netherlands and been granted asylum. Requests
to the Dutch government for his extradition were rejected, and he remained
in that country until his death in 1941.
There was some special business at hand concerning Turkey, stemming
from the massive deaths of Armenians at the hands of Turkish authorities
during the war. In May 1915, the Allied powers had issued a joint declaration,
condemning Turkey for “crimes against humanity and civilization”—the
first appearance of that forbidding turn of phrase—and explicitly warning
that agents of the Turkish government would be held personally respon-
sible. In the Treaty of Sèvres (the peace treaty with Turkey), that promise
was fulfilled by requiring the Turkish government to identify the persons
responsible for the massacres and to deliver them for trial by an interna-
tional tribunal.
In the event, however, the Treaty of Sèvres never entered into force. The
Turkish government did arrest five persons for roles in the Armenian atroci-
ties, two of whom were convicted in its own courts for actions “against hu-
manity and civilization.” But the Ottoman government, fearing unrest if
trials continued, then halted further proceedings. By the time that peace
was finally made with Turkey, in 1923, that country’s bargaining position
had improved, so the Treaty of Lausanne made no provision for trials for the
Armenian massacres, or for war crimes trials of any kind.
Regarding Germans accused of war crimes, the provision for trials by the
Allied powers was quietly set aside. As a concession, Germany was allowed
to undertake trials itself (as Lansing and Scott had favored). The trials,
which got under way in Leipzig in 1921, did not go smoothly. Public opinion
in Germany was strongly against them. Opinion in the Allied states became
inflamed after the handing down of light sentences to persons convicted. As

a result of dissatisfaction with the Leipzig process, France and Belgium re-
activated plans for trials before their national tribunals. For this purpose,
they proceeded to arrest accused Germans who happened to be located in
zones that were occupied by their forces. By December 1924, over twelve
hundred Germans had been convicted by French courts-martial. The Bel-
gians tried about eighty cases. The Leipzig process nevertheless continued at
least a vestigial existence until it was formally abandoned by the Nazi gov-
ernment in 1933.
An Age of Reform
In the aftermath of the Great War, international lawyers perhaps had more
reason than most to brood morosely over their share of responsibility for the
tragedy. One of the gloomier ones was Charles Fenwick, an American pro-
fessor of political science at Bryn Mawr College. His principal target was the
technocratic, apolitical outlook of mainstream positivism, which had gone
too far in simply accepting the world as it was and done too little to make it
better.
When we read the books of Hall and of Westlake, of Bonfi ls and Rivier,
of de Louter, von Liszt, or any of the other outstanding treatises, even
that of Oppenheim, we are unable to comprehend how they could have
failed so completely to foresee the future and call for a constructive de-
velopment of the law. The conception of a “positive” approach to the law
laid a heavy hand upon international lawyers.
There was still the possibility, though, of making amends in the future—and
there was a palpable determination on the part of the many to do just that.
During the interwar period, there was an intense flurry of activity across a
broad range of fronts. Some of the innovations are relatively well known and
can therefore be largely (if regrettably) omitted from the present account.
The League of Nations is foremost here. It was designed as a political rather
than a judicial body—as a mechanism for aligning state policies in such a
manner as to minimize the chances of outbreak of war. It included a collective
security component, in which the member states promised to aid one an-
other against aggressors. Also included was a provision for applying sanc-
tions (primarily economic) against member states that went to war in viola-
tion of the League’s in-house rules for peaceful settlement.
Two lesser-known elements of the League system should be pointed out, as
being relevant to international law. Both concerned treaties. One was the re-
quirement that all treaties concluded by League member states be registered
with the League secretariat, which would then publish them for perusal by
the world at large. Any treaty that was not registered as required would not
be legally binding. As a result, the League of Nations Treaty Series became a
kind of primitive “online” moving image of the treaty practices of the League
members. If nothing else, it is a gold mine for researchers.
The other provision was a somewhat vague one: Article 19 of the Cove-
nant, which empowered the League Assembly to “advise the reconsidera-
tion” of past treaties that might be obsolete or pose a threat to world peace.
Some harbored great hopes for this provision—that it could become the ba-
sis on which the League, in the manner of a true world legislature, could
step in to rectify past cases of injustice in bilateral relations between states,
such as unjust peace settlements in the aftermath of wars. These hopes
went unrealized, although several attempts were made to invoke Article 19.
In the first year of the League’s operation, the government of Bolivia at-
tempted to rectify a prior peace treaty with Chile (dating from 1904) that
deprived it of access to the sea. In 1925, the Chinese government attempted
to use the provision to have extraterritoriality provisions with Western pow-
ers abrogated. These attempts, however, produced no results. So the provi-
sion proved to be of no practical value.
It may be of interest to note, if only in passing, two interesting proposals
that, in the event, did not find their way into the League Covenant: on reli-
gious freedom and on racial equality. Wilson (the son of a clergyman) was
anxious to include a provision on nondiscrimination on the ground of reli-
gion. Problems arose, though, when the Japanese delegation sought to amend
Wilson’s proposal, with a provision that would commit League member states
to grant “equal and just treatment” to “alien nationals” of other member
states, without distinction “on account of their race or nationality.” Robert
Cecil, the British delegate, objected that the provision “raised extremely seri-
ous problems within the British Empire,” with the result that both the Wilson
and the Japanese proposals were withdrawn.
The Japanese then attempted, as an alternative, to amend the preamble to

the League Covenant to include a general “endorsement of the principle of
equality of nations and just treatment of their nationals.” This idea attracted
wide support—indeed, there was outright unanimity for the principle of
“equality of nations,” since that was at the very heart of international law.
But the “just treatment” component led Cecil to object once again. The pro-
vision, he explained, would have implications for “the question of White
Australia.” Some countries, as he delicately put it, regarded questions of
permitting Eastern immigration as being “impossible to discuss.” Despite
this opposition, the racial-equality proposal attracted a majority of votes in
its favor. But it was kept out of the covenant when Wilson, chairing the rel-
evant session, ruled that unanimity was required. At the plenary of the
Peace Conference, the Japanese delegation expressed “poignant regret” at
the failure of its initiative.
A World Court at Last

Of more direct significance for international law than the League itself was
the establishment, at last, of a true World Court—that is, of a standing tri-
bunal, in permanent existence, with a continuing panel of judges and an
ever-growing body of case law. The creation of such a court was not a fore-
gone conclusion. President Wilson’s original draft of the League Covenant
did not include any provision for a court. The final draft, however, did—
though in such a manner as to make it clear that the Court would not have
mandatory jurisdiction over League member states.
The actual establishment of the Court—known officially (if a trifle optimis-
tically) as the Permanent Court of International Justice (P.C.I.J.)—occurred
by way of adoption of a separate treaty (or statute). A draft statute was pro-
duced in 1920 by an Advisory Committee of Jurists and then approved (with
some changes) by the League Assembly and Council and put out for ratifica-
tion by states of the world generally. Membership in the Court was not con-
fined to League member states.
The Court consisted of eleven judges and four deputy (or substitute)
judges, serving nine-year terms of office, renewable any number of times.
(In 1929, the bench would be raised to fifteen by, in effect, promoting the
deputies to full judges.) The judges would sit in a purely personal capacity.
That is, they would not be delegates of their states of nationality but instead
would exercise their own independent judgment of the law and facts in cases
before them.
It was fortunate that a solution was ready to hand for the problem that
had thwarted the proposed Court of Arbitral Justice prior to the war: the
method of selection of the judges. The institutions of the League were
given the task. Election to the Court required a majority vote of both of the
League’s principal bodies—the assembly (comprising the entire League
membership) and the council (where there was disproportionate weighting
of the major powers). The first elections, held in 1921, went smoothly, and
the Court held its inaugural public sitting in February 1922. It was located
in the Peace Palace in The Hague, alongside the Permanent Court of Arbi-
tration, which continued (and continues) to function.
The Court was given jurisdiction only over states. Individuals would have no
standing to bring actions (as they did before the Central American Court of
Justice and would have had in the International Prize Court if that body had
come into existence). Nor could international organizations such as the Inter-
national Committee of the Red Cross or the League of Nations itself either
bring or defend claims. The Committee of Jurists had proposed that the Court
have mandatory jurisdiction over states that were parties to the statute, but the
League council decided otherwise, on the ground that it was clear from the
text of the League Covenant that the Court would not have mandatory juris-
diction. A state could therefore be sued in the Court only if it so consented.
The council did, however, make a gesture in the direction of compulsory
jurisdiction. This was in the form of a provision in the Court’s statute allow-
ing states, purely at their own unilateral option, to effect a sort of self-imposed
compulsory jurisdiction. Specifically, a state could issue a declaration that it
would permit cases to be brought against it by any other state issuing a simi-
lar declaration. The effect, then, would be that, within the group of states
making such a declaration, the Court would have compulsory jurisdiction
over all disputes, with no need for ad hoc consent in each individual case.
The provision of the Court’s statute setting out this arrangement became
known, somewhat confusingly, as the “Optional Clause”—referring to the
fact that it was optional for states to issue a declaration accepting the prin-
ciple of compulsory jurisdiction.
Provision was carefully made to ensure that, whenever two states litigated,
there should be a judge of each nationality on the bench. If, in a given case,
the Court contained a judge from one state but not the other, then that other
state would be allowed to add a judge of its own choosing to the bench of
regular judges, though only for the one case. This additional figure was
known as a judge ad hoc. If neither litigating state had a judge of its nation-
ality on the bench, then both would be allowed to appoint judges ad hoc.
(This judge ad hoc did not have to be a national of the appointing state, al-
though that was commonly the case.)
One of the most innovative features of this World Court was a provision
for the rendering of advisory opinions. These were pronouncements that the
Court would give to organs of the League on request, to enable them to deal
with difficult legal questions. The organs could, of course, form their own
legal positions and proceed on that basis. But if they wanted a truly authori-
tative judicial statement of what the law was, they could submit the issue to
the World Court for resolution. In such a proceeding, there would be no
states litigating.
The World Court in Action

British foreign office legal adviser Cecil Hurst, surveying the list of the first
judges on the World Court, worried that “there are far too many professors
and legal advisers” on the bench “and too few judges.” Indeed, only three
of the eleven had prior judicial experience. Among the academics were An-
zilotti from Italy, John Bassett Moore from the United States, and Busta-
mante from Cuba. Among the foreign office legal advisers was the Swiss
member, Max Huber (he was also a former academic). Ruy Barbosa—
prodigiously learned but no academic—was elected to the Court, but never
took his seat due to illness (although his bronze bust graces the Peace Pal-
ace, in an eerie silence that is deeply foreign to the fiery orator.) Moore’s
election was something of a surprise—not least to himself. For one thing,
the United States was neither a member of the League nor a party to the
Court’s statute. Moore was unenthusiastic about the League and consented
to go onto the bench only because he approved of the peaceful settlement of
disputes by judicial tribunals.
Later members of the Court included a former head of state: Pessôa of Bra-
zil, who, after finishing his term as president, was elected in 1923 to replace
Barbosa (his presidential election rival from 1919). Two former American
secretaries of state served as judges: Charles Evans Hughes (who stepped

down to become chief justice of the American Supreme Court) and Frank
Kellogg. Other prominent judges included Hurst from the British foreign
office, Manley Hudson of Harvard Law School, Rolin-Jaequemyns and
Charles de Visscher (both from Belgium), and Schücking, who became the
first (and only) German judge on the Court in 1930. Three of the judges
served throughout the Court’s existence: Anzilotti, Bustamante, and Rafael
Altamira from Spain.
There was, understandably, some curiosity as to how many states would
issue declarations under the Optional Clause accepting the compulsory ju-
risdiction of the Court. The first to do so was Sweden—though, out of cau-
tion, only for a five-year period. By September 1921, eleven other states had
made declarations, with five of these following the Swedish lead of limiting
their declarations to five-year durations. In 1928, the League Assembly
launched an effort to increase the use of the Optional Clause, with some
success. By 1932, some twenty-six states had issued declarations. On only
one occasion was an Optional Clause declaration withdrawn: by Paraguay
in 1938. Six states promptly objected, contending that Optional Clause dec-
larations, once issued, could not be withdrawn. The issue, however, was
not resolved.
Over the period of its operation (1922–40), the Court handed down
twenty-five judgments on the merits of contentious cases, plus twenty-seven
advisory opinions. The cases were of a somewhat miscellaneous character.
The very first ones, decided in 1922, were three advisory opinions requested
by the International Labor Organization, for interpretations of labor treaties.
The ILO requested two further opinions on later occasions. Several cases
arose from the postwar treaties. One of them was the Wimbledon, as noted.
Several others arose out of the Treaty of Lausanne and the associated popula-
tion exchange between Greece and Turkey. In addition, questions of relations
between Poland and the Free City of Danzig reached the Court no fewer
than six times. The contribution of the Court’s case law to the development
of substantive international law was perhaps less than might have been ex-
pected. This was because most of the cases brought concerned alleged viola-
tions of specific treaty provisions, rather than of general principles of law.
Only on one occasion was a high-profile political crisis brought to the
Court. This concerned a proposed arrangement, in 1931, by Germany and
Austria to coordinate their customs policies. The plan was loudly claimed
to be a violation on Austria’s part of a treaty commitment of 1922 not to
“alienate its independence.”  As it happened, the two governments decided,
for various political reasons, not to proceed with the initiative. But the advi-
sory opinion was issued nonetheless, in which a sharply divided Court ruled
that the plan did constitute a breach of the 1922 treaty. The German and
Austrian governments nonetheless touted the closeness of the vote as a moral
victory. And in some quarters, the Court lost prestige, on the belief that the
judges had voted largely on political, rather than legal, grounds.
Mixed-claims Commissions
The World Court did not have anything like a monopoly on international
litigation during the period. The interwar era was also something of a golden
age for mixed-claims commissions and arbitrations. The peace treaties with
the defeated Central powers made provision for a class of claims to be adju-
dicated by mixed-claims tribunals. These were claims by Allied nationals
for losses flowing from sequestration measures and similar actions by the
defeated powers at the outset of the conflict. This primarily affected Allied
nationals who were resident in those states or who had investments there.
More important was the mixed-claims commission agreed between the
United States and Germany in 1922. This was more wide-ranging in scope
than the other ones because it was designed to deal with all losses suffered
by American civilians—thereby becoming a substitute for the reparations
arrangement in the Versailles Treaty. Among the more prominent claims
heard by this tribunal were those arising out of Germany’s sinking of the
passenger liner Lusitania in 1915. But it decided over twenty thousand other
claims as well. Over seven thousand awards were made by this panel, total-
ing over $181 million.
In mixed-claims commissions, Mexico played a leading role. It entered
into two mixed-claims arrangements with the United States in 1923. One
concerned “special” claims (as they were called) of alleged injuries to Amer-
ican nationals from the revolutionary disturbances in Mexico in 1910–20.
The other dealt with “general” claims of alleged injuries of all sorts by Mex-
ico to Americans, as well as by the United States to Mexicans. The special-
claims commission was not a success. Although over three thousand claims
were fi led, only two substantive decisions were rendered, both of which were
highly controversial. Eventually, in 1934, the remaining special claims were
settled en bloc by a lump sum payment of $5.4 million by Mexico to the U.S.
government, which then devised an internal process for hearing the claims
and distributing the sum. The general claims commission heard more cases,
but there too, matters were expedited by the conclusion of a global lump sum
settlement in 1941 (a payment of $40 million by Mexico). Mexico also con-
cluded general claims conventions with six European countries in the period
1924–27 (Britain, France, Germany, Italy, Spain, and Belgium). Finally, there
was a general mixed-claims commission established by Panama and the
United States in 1926. These claims commissions, in the aggregate, pro-
duced an avalanche of case law that was far larger in bulk than that of the
P.C.I.J., and more varied as well.
Attacking Extraterritoriality
It has been observed that Japan, uniquely, had succeeded in bringing an end
to extraterritoriality privileges of the developed Western states, by way of a
series of bilateral treaties. After the Great War, the other states sought to do
the same, with varying degrees of success. Siam replicated the Japanese ap-
proach. The decisive step occurred in 1920, when the American government
agreed to give up extraterritorial privileges for its nationals. A similar
concession by Japan came four years later. Other European countries soon
followed suit, so that by 1926, all extraterritoriality arrangements had been
terminated in that country.
In Turkey, the main capitulation agreement of 1740 was still in force at the
outbreak of the Great War. The Ottoman government purported to termi-
nate the capitulations unilaterally in October 1914, but this had no effect in
light of the eventual Allied victory. In the Treaty of Sèvres of 1920, the victo-
rious powers even provided for the extension of the capitulation privileges to
all other Allied states that did not then benefit from them. This treaty, how-
ever, did not enter into force. The Treaty of Lausanne in 1923 was very different
on this score. It provided for “the complete abolition” of the Turkish capitula-
tions “in every respect.” This applied only to Turkey itself, though, and not to
the whole of the Ottoman Empire. So the mixed courts of Egypt continued to
operate. A separate arrangement to end them was concluded in 1937, in the
form of the multilateral Montreux Convention. It provided that the mixed

courts would be wound up in 1949 and that, until that time, they were to ap-
ply Egyptian instead of foreign law in their proceedings.
The Chinese government had less success in eliminating extraterritorial-
ity. The republican government was less relaxed than its imperial predeces-
sor had been on the subject and pressed energetically for its abolition. A
potentially important step took place at the Nine-Power Conference of 1922,
which established a commission to look into the matter. This body, however,
to the intense disappointment of the Chinese government, did not recom-
mend the immediate termination of extraterritorial arrangements. Nor (as
noted previously) did China succeed in enlisting the aid of the League of
Nations Assembly.
Unilateral abrogation of Western privileges was attempted, with varying
results. In 1927, the Persian government unilaterally denounced all of its
capitulation treaties en bloc. This proved effective. The Chinese govern-
ment, though, had less success with this strategy. When it purported to end
Belgium’s extraterritorial privileges in 1927, the Belgian government re-
fused to acquiesce and brought a claim against China in the World Court
for breach of its treaty rights. A settlement was reached, in which Belgium
agreed in principle to end its privileges—but only when other countries did
so. Other states made similar commitments, but to no practical effect. No
state took the decisive first step of actually relinquishing its privileges, so
that extraterritoriality remained in place in China throughout the interwar
period. But at least the principle of abolition had been established.
Minority Protection
International commitments for fair treatment of minority groups were not a
complete novelty in the post–Great War era. In 1878, upon attaining inde-
pendence from Turkey, Romania was placed under a treaty obligation to re-
frain from discrimination against minority populations. It was only after
the war, however, that this strategy of minority protection by way of treaty
commitment was employed on a large scale. This was, in effect, the quid
pro quo for the attainment of independence by the various former parts of
the Habsburg and Ottoman Empires. In the case of the four defeated Cen-
tral powers—Austria, Bulgaria, Hungary, and Turkey—provisions for the
protection of minorities were included in the respective peace treaties.

Separate minorities treaties were then concluded with three newly created
states (Poland, Czechoslovak ia, and Yugoslavia), plus Romania and Greece.
Commitments to minority protection were also made by way of declara-
tions to the League Council by Albania, the three Baltic states, and (later)
Iraq. A noteworthy feature of the minority arrangements was provision for
continuous oversight of their observance. This was undertaken by the Mi-
norities Section of the League secretariat. Matters could be brought before
the council and decided by majority vote (i.e., with unanimity not being re-
quired as it was generally in League bodies).
Arrangements in the form of bilateral treaties were employed for two ar-
eas. One was Greece and Turkey. Here, the solution—a decidedly drastic
one—was to make a dramatic reduction in minority problems by means of a
mass population exchange, agreed in 1923. The other special arrangement
concerned Upper Silesia, a region contested between Germany and Poland.
After a plebiscite failed to resolve the matter, the two countries concluded a
bilateral treaty in 1922, which partitioned the area and also contained prom-
ises for fair treatment of minorities.
The Upper Silesia Convention had the dubious honor of being one of the
lengthiest treaties ever concluded. More interestingly, it differed from all of
the other minorities arrangements in establishing a special tribunal to hear
complaints by individuals in either minority community of mistreatment by
their new (and often unwelcome) masters. The arrangement worked badly, in
the event, largely because of the very different degrees of education and po-
litical awareness on the part of the ethnic Germans and ethnic Poles. The
Germans were the more prosperous and better educated, and they made
vigorous use of the complaint procedures. As a result, the arrangement prob-
ably ended up producing at least as much friction and ill will as genuine
minority protection.
Minorities issues became a very fruitful source of business for the World
Court, most commonly concerning treatment of ethnic Germans in Poland.
On two occasions in 1923, Poland was found to be in breach of its minorities
treaty. The Upper Silesia situation came to the Court’s attention on a num-
ber of occasions, resulting in rulings that Poland was in breach of the 1922
convention. Litigation was also brought concerning the adherence of Al-
bania to its minorities treaty. Over time, the League’s minorities system
became increasingly unpopular. Governments disliked them as badges of

second-class international citizenship and as restrictions on their freedom
of action. The intended beneficiaries, too, became increasingly disillusioned,
as hopes for improved treatment went largely unfulfi lled.
Further Legislation
The interwar period was a busy time in the conclusion of multilateral treaties,
on a wide range of subjects. In the area of aviation, for example, a Convention
on Aerial Navigation was adopted in 1919, which marked the definitive rejec-
tion of proposals for freedom of the air, analogous to freedom of the high seas.
Instead, there was recognition of “complete and exclusive sovereignty” of
states over airspace above their territories. The convention also set rules on
such topics as the nationality of aircraft, procedures to be followed on depar-
ture and landing, and certain prohibitions on transport (of explosives or ar-
maments), as well as establishing an International Commission for Air Navi-
gation. Aerial warfare received some attention soon after this. In 1923, a group
of private experts, under the chairmanship of Moore, met in The Hague to
draft a set of rules for the conduct of aerial warfare. Although these did not
take the form of a legally binding treaty, they represent, to the present day, the
most authoritative statement of the law of aerial warfare.
In 1925, a convention prohibiting the use of asphyxiating gases was
drafted. This was widely ratified by states, but usually subject to the impor-
tant reservation of the right to employ such gases against an enemy that used
them first. In 1929, two additional Geneva conventions were concluded un-
der the auspices of the International Committee of the Red Cross—one ex-
tending the immunities of medical personnel to airborne units, and the other
on prisoners of war. After several unsuccessful attempts, rules on submarine
warfare were finally agreed in the London Naval Protocol of 1936. It did not
prohibit the sinking of merchant ships, but it required that provisions be made
for the safety of passengers and crew in the event of a sinking.
The most prominent treaty on the subject of armed conflict was the Pact
of Paris of 1928 (or Kellogg-Briand Treaty, after its two principal instigators,
Frank Kellogg of the United States and Aristide Briand of France). It took
the momentous step of prohibiting war “as an instrument of national policy.”
In time, over sixty states became parties to it. The pact was not a charter of
absolute pacifism, since it was clearly understood by the parties that armed
force could be used in self-defense. And it seemed likely, too, that force
could still be employed in collective security efforts, since these would not
count as war in pursuit of “national policy.” Moreover, no form of sanction
was specified in the treaty. The pact, therefore, may have seemed little more
than a high-profi le trumpeting of idealism. But it would later prove to have
some very important and unexpected effects.
In one area—suppression of crime—various initiatives were proposed
during this period but not ultimately adopted. The Advisory Committee of
Jurists, the body that drafted the Statute of the World Court, favored the
establishment of an international criminal court alongside the P.C.I.J. The
idea was principally the initiative of the Belgian member of the committee,
Édouard Descamps. The criminal tribunal would have operated as a kind
of companion to the World Court, to place accused individuals (rather
than states) on trial. But the proposal was not acted on by the League
Council.
A more concrete arrangement for an international criminal court
emerged later, in the wake of the assassination of King Alexander I of
Yugoslavia during a visit to France in 1934. A convention was concluded in
1937 for the trial of alleged terrorists by an international tribunal. This
would be done entirely at the option of any state that had custody of an al-
leged terrorist. The state could elect to transfer the accused person to the
international court, where it would be responsible for conducting the pros-
ecution. The convention, however, did not attract enough ratifications to
enter into force.
Codification
There continued to be disagreement among international lawyers over the
codification of international law (or parts of it). Even among those in favor,
there was disagreement as to how it should be done. A key question was
whether it was better to have states undertake the task, or alternatively to
entrust the task to technical experts (i.e., to international lawyers). At stake
in this debate was whether the question of codification was better regarded
as a fundamentally political activity or as a technical exercise. A prominent
advocate of the technical approach was Schücking. Root was strongly of
the other persuasion. He held that codification, by its nature, entails the
making of new law and is therefore essentially a legislative task—and conse-
quently one for politicians.
As it happened, the period witnessed noteworthy codification initiatives of
both kinds. The political one took place at the initiative of the League of Na-
tions, and the private one by a team of scholars based at Harvard Law School
in the United States. The League’s codification conference met in The Hague
in 1930, with forty-two states represented, including the United States (plus
an observer from the Soviet Union, which was not then a League member).
Schücking was present for Germany, and Manley Hudson for the United
States. No attempt was made to codify the whole of international law. In-
stead, three subject areas were selected: conflict-of-nationality questions, ter-
ritorial waters, and liability of states for injuries to foreign nationals.
The results proved meager. The subject of nationality was the one on which
the Hague Conference made the greatest progress, in the form of a multilat-
eral convention dealing with various problems arising from conflicts of na-
tionality laws (e.g., from dual nationality). On the topic of territorial waters,
an attempt was made to reach agreement on the width of territorial seas. But
the most that could be achieved was a survey of the diversity of state practice
in the area. Least successful of all was the attempt to codify the law on state
liability for injuries to foreigners. It foundered on the inability to resolve two
crucial questions. First was whether states are under a general duty to exer-
cise due diligence to prevent injuries from occurring to foreigners. Second
was whether there is an international standard of treatment of foreigners or
merely a nondiscrimination principle, as advocated by Calvo.
The most ambitious scholarly codification initiative of the technical kind
was conducted under the auspices of the Harvard Law School in the United
States (with the financial support of the Carnegie Endowment for International
Peace). Under the overall direction of Manley Hudson, the Harvard research
project concluded a series of thirteen draft conventions in the period 1929–39,
on a broad range of subjects: from diplomatic and consular law, to territorial
waters, extradition, the law of treaties, nationality, injuries to aliens, and neu-
trality. None of these, however, was ever adopted as binding law by states. So,
for all of its scholarly value, the Harvard project had little practical impact.
The Harvard codifiers were not afraid to break new ground. In the area of
neutrality, they proposed significant changes in the existing law. A convention
on aid to victims of aggression also envisaged a significant change in the law

of neutrality, to permit countries to provide aid to victim states without
thereby incurring liability to the aggressor. The effect would be to relieve
neutral states of the fundamental duty of impartiality in cases of aggression.
In this area, the Harvard researchers can be credited with a fair degree of
prescience, since (as will be seen presently) their ideas were soon put to con-
crete use.
Battles of Ideas
If there were striking institutional innovations during this period, there

were some new developments, too, on the conceptual front. There was also
an important new forum in which to expound them: the Hague Academy of
International Law. The plans for it had been laid before the war, but they
only came to fruition afterward. Located alongside the World Court in the
Peace Palace, the academy was not a degree-granting body, and it had no
permanent faculty. Instead, it offered a series of annual courses on selected
topics given by prominent figures from around the world, starting in 1923.
The publication of these courses provides a treasure trove for the explora-
tion of different perspectives on international legal topics—and on the sub-
ject as a whole—over the years.
An especially striking feature of the interwar period was the emergence
of radical, or at least potentially radical, challenges to international law from
states with new forms of official ideology. This was the first time since the
French Revolution that this had been so. Here, challenges came from both
the left and the right—the left, from socialist Russia, and the right, from
fascist Italy and Germany. It is interesting to note, though, that, although
the ideologies may have been new, the international-law positions flowing
from them fell, for the most part, into the existing schools of thought.
The Continuing Reign of Positivism

In general, mainstream positivism continued to reign as the dominant phi-
losophy of international law, even if it no longer held so exalted a position as
it had before the war. But there were some important changes, chiefly in
the emergence of the empirical variant as the leading version. The common-
will theory largely faded from the scene, for two reasons. One was that its
prewar champions turned their attentions in other directions. Triepel
largely abandoned international law, in favor of his other interest, constitu-
tional law. Anzilotti remained very much on the international-law scene, as
a judge on the World Court. But he underwent an important change of posi-
tion that, as will be presently seen, entailed abandoning some key tenets of
the common-will position. Voluntarism, in its nineteenth-century splendor,
also largely faded, for lack of prominent supporters. Lasson was now dead.
Kaufmann continued to be active—but, like Anzilotti, in rather different
intellectual directions than before.
One of the most prominent writers in the empirical positivist tradi-
tion—to the point that he could be considered the embodiment of main-
stream positivism—was the German Karl Strupp, who was professor of law
at the University of Frankfurt. He frankly described himself as “a pure-
blooded positivist.” Strupp even gave as succinct a statement of the main-
stream positivist credo as has ever been set forth:
Public international law is a law between states, not above them. The
states being equal among themselves, public international law is a law
of coordination and not of subordination. Important consequence: The
states are only bound by norms which they have freely and voluntarily
accepted.
More specifically, Strupp was a champion of the empirical variant of posi-

tivism, explicitly voicing a lack of confidence in both the common-will and
voluntarist theories. In the spirit of Hall, whom he explicitly cited, he con-
tended that the real basis of international law is a factual one: the phenom-
enon of reciprocity. Reciprocity, he was careful to explain, is not itself a le-
gal norm. It is a fact of social life, which serves as the foundation of all legal
norms. Its origin, in Strupp’s opinion, was strictly utilitarian, arising out of
the rational self-interest of the actors—out of “pure egoism,” as he put it.
The principle of pacta sunt servanda was described as, in its inception, “a
prejudicial norm,” with the sense of legal obligation maturing only later.
Strupp hastened to assure his readers that this thesis, most emphatically,
was not an endorsement of natural law because that extralegal basis lay
in de facto pragmatic calculation and not in any transcendental moral

notions.
A memorable World Court case, in 1927, confirmed the dominant role of
positivism—but also revealed the force of the opposition to it. The judges
split evenly, so that the outcome was determined by the vote cast by the
president (Judge Huber from Switzerland). The case arose out of a maritime
collision, off the coast of the island of Lesbos in the Aegean Sea. A French
ship called the Lotus collided with, and sank, a Turkish vessel, with the loss
of several lives. Turkish authorities then instituted criminal proceedings
against the French captain. The French government strenuously insisted
that Turkey had no right under international law to prosecute the captain,
on the ground that international law reserves jurisdiction exclusively to the
flag state of the alleged wrongdoer (France, in this case). The Court ruled
against this contention. In so holding, it gave as clear an endorsement of
mainstream positivism as any international tribunal has ever given. State
conduct, held the Court, is governed by a fundamental “principle of
freedom”—meaning that states are permitted to engage in any conduct they
wish, unless there is a rule prohibiting that conduct. Moreover, such a pro-
hibitory rule can come about only as a result of the free acceptance of the
rule by the state itself.
International law governs relations between independent States. The

rules of law binding upon States therefore emanate from their own
free will as expressed in conventions or by usages . . . established in
order to regulate the relations between these co-existing independent
communities. . . . Restrictions upon the independence of States there-
fore cannot be presumed.
In the dispute at hand, the Court held that no rule had emerged barring the
state of the victim vessel (Turkey) from asserting jurisdiction. So the prose-
cution could proceed.
If positivism—at least in its empirical version—retained its position as
the ruling philosophy of international law in this period, it should not be
thought that this was merely a passive matter of survival. Far from it. There
was a significant further exploration of its bases. These new explorations
came from a group of thinkers in Austria, and from one in particular.
The Vienna School

The Austrian writers of the 1920s who reshaped positivist thought were very
conscious of how far they were departing from their nineteenth-century
mainstream forebears. Their ideas have been given various labels, such as
“analytical positivism,” “critical positivism,” and “neo-positivism.” Most
commonly, though, these writers are referred to as the Vienna School, in
honor of their place of origin. The leading figure was Hans Kelsen. Other
prominent members included his fellow Austrians Josef Kunz and (for a time)
Alfred Verdross.
Kelsen was a native of Prague, though from a German-speaking family.
He grew up in Vienna. His family background was Jewish, but he elected to
convert to Catholicism to remove social barriers to advancement. And ad-
vance he did, to a professorship at the University of Vienna in constitutional
law. During the war, he was a legal adviser to the minister of war. In 1919, he
played the dominant role in the drafting of the constitution of the new Re-
public of Austria and then went on to serve as a judge on the Constitutional
Court. His judicial career, however, was cut rudely short by an outbreak of
what would later be called the “culture wars.” A ruling by the Court in 1927
in favor of the legality of remarriage sparked an outcry from conservative
religious forces. Rioting broke out, with Kelsen as a foremost target, in the
course of which the Palace of Justice was burned down. An amendment to
the constitution brought about the dismissal of the offending judges. After
this chastening brush with reality, Kelsen moved to the University of Cologne
in Germany.
It was in his Austrian period, though, that he emerged as the spokesman of
the Vienna School. The foremost feature of the Vienna School approach was
its powerfully normative character—to the point that it has sometimes been
labeled as the “normative” approach to international law. This is the belief that
law—whether national or international—is, above all else, a set of rules that
the subjects of that law are obligated to obey. The question which then imme-
diately presents itself is where these rules come from. The Vienna School was
certainly emphatic as to where they do not come from. They do not come from
natural law. One of the hallmarks of the Vienna School was a relentless hostil-
ity to natural law. In this sense, Kelsen and his followers were squarely within
the confines of mainstream positivism.
More specifically, the Vienna School may be regarded as an in-depth ex-

ploration of the conceptual roots of the empirical version of positivism. One
indication of this was the important role that was assigned to sanctions. It
was insisted that a norm qualifies as a true legal obligation if (and only if) a
breach of that norm exposes the actor, at least potentially, to a lawfully ad-
ministered sanction of some kind. A sanction is lawfully administered, in
turn, if the person imposing the sanction is legally empowered to do so. It
might be asked: empowered by whom? The answer was: empowered by some
greater authority. It may then be wondered: who grants that right of empow-
erment to the greater authority? The answer was: some authority that is
greater still. And so on. Except that Kelsen conceded that this chain of re-
sponses could not go on forever. Eventually, there must be some ultimate
authority who does not derive his own authority from a superior. This ulti-
mate authority is not, however, a sovereign ruler. Instead, it is a sovereign
norm, which Kelsen called the “basic norm” (Grundnorm).
The most important feature to appreciate about Kelsen’s basic norm is
that it was formal rather than substantive in nature. That is to say, it did not
dictate or determine the content of the law. Instead, it dictated the authority
by which the law was made. The content of the laws, he emphasized, cannot
be deduced, in the style of natural law, “by any intellectual operation.” It
can only be discovered empirically, by ascertaining what it was that the au-
thorized lawmakers have actually chosen to enact. In other words, accord-
ing to Kelsen, the substantive content of law is a product of will—that is, the
will of the persons possessing the authority to make law. On this point, Kelsen
was an orthodox positivist. But he contended that the authority to make law is
not a product of will. It is an emanation from the basic norm.
As to the actual content of the basic norm of international law, there was
room for disagreement within the Vienna School and its allies. Kelsen’s own
statement identified it as “the general principle that we ought to behave in
the way that our fellow men usually behave and during a certain period of
time used to behave.” Put slightly more tersely, his basic norm was the
proposition that “international custom is a law-creating fact.” The basic
affinity with the empirical variant of positivism is clearly apparent here.
Not surprisingly, there were some alternative suggestions for the exalted
status of basic norm. One of them came from an especially interesting source:
Anzilotti. He, in effect, reconfigured his common-will theory along the lines
laid down by Kelsen. In the process, he offered a rival candidate for the basic
norm: the principle of pacta sunt servanda. In a way, this change of position
on Anzilotti’s part did not mark any real surrender of his common-will theory.
But it did involve placing it onto a somewhat different foundation. His previous
position had been that the principle of pacta sunt servanda was itself the prod-
uct of agreement between states—with the brute fact of agreement therefore
functioning as a kind of primordial juridical force in its own right.
The principal significance of Anzilotti’s change of position lies in the light
that it sheds on the nature of Kelsen’s normative approach to international
law. That approach enabled a unification to be achieved between the empiri-
cal and the common-will versions of positivism. The two variants could now
be regarded as identical in their formal structure, because both saw interna-
tional law as being rooted in a basic norm. They differed only on what the
norm was: the empiricists (including Kelsen) thinking that it was a rule that
made customary practices of states legally binding, and the common-will
adherents (such as Anzilotti) thinking that it was the principle of pacta sunt
servanda.
In terms of its overall flavor, the outstanding feature of Kelsen’s system
was its austerely intellectual, rigorously logical character. As a “formal”
theory of law, it focused chiefly on the nature of law rather than its content.
Moreover, the system was entirely self-contained. It was rigorously purged
of any input from other sciences such as economics, history, or sociology.
For that reason, Kelsen referred to it as the “pure theory of law.” In its gen-
eral contours, it is strikingly reminiscent of the rationalist stream of natural-
law thought, and of Wolff in par ticular. And it is no accident that Kelsen had
a high regard for Wolff. It is therefore more than a little odd to find Kelsen
being—or at least purporting to be—so unremittingly hostile to natural law.
The explanation is that, where the old natural-law systems dealt with the
substantive contents of laws, Kelsen’s concentrated on forms (i.e., on the
means for making law). His system was therefore a sort of formalist-cum-
positivist mirror image of rationalist natural law.
The Vienna School approach was compatible with a number of elements of
mainstream positivism. For example, Kelsen accepted the principle of state
freedom, as endorsed by the World Court in the Lotus case. In addition, he
shared the insistence of his empirical positivist ancestors on the importance
of a sanction for the viability of a legal system.
At the same time, the Vienna School departed from nineteenth-century

positivism in several very important ways. Three are of special note. First
was the Vienna School’s firm rejection of voluntarism combined with a
radical downgrading of state sovereignty. Much in the spirit of Duguit,
Kelsen rejected the idea of states as possessing a real personality—the very
foundation stone of voluntarism. The true position, in his view, is that states
are merely governmental mechanisms in the hands of the individual per-
sons who hold de facto power. International-law rules therefore are not
directed to states as such, but rather to those individuals who wield the gov-
ernmental power. “The subjects of international law,” averred Kelsen, “are
individuals” and not states.
A second major departure from the positivism of the nineteenth century
was a rejection of the contractual picture of international law, in favor of a
legislative one. Customary law was not seen as a tacit treaty making, but in-
stead as a collective lawmaking act—with the effect that all states are legally
bound by the customary laws that emerge. In this sense, therefore, interna-
tional law was regarded by the Vienna School as a law above states and not
merely a law between states. “States are bound by [customary] international
law,” insisted Kelsen, “without and even against their will.”
The third major departure of the Vienna School was closely connected to
this second one. This was a rejection of the dualistic outlook of mainstream
nineteenth-century positivism—that is, of the belief that international law
and national law are separate systems. Kelsen must go down in intellectual
history as one of the foremost exemplars of holistic thought and grand the-
ory. In his opinion, “[a]ll quest for scientific knowledge”—including legal
science—“is motivated by an endeavor to find unity in the apparent multi-
plicity of phenomena.” If law was to be a true science (as it certainly was in
Kelsen’s eyes), then it simply could not be allowed to contain contradictions.
All aspects of law (national, international, and so forth) must necessarily be
“parts of one harmonious system.” Kelsen’s stress on unity at the expense
of pluralism and localism was distinctly reminiscent of Dante’s medieval
dream of a unified global polity—and, not coincidentally, Kelsen’s earliest
academic work had been a study of Dante’s political and legal theory.
Criticisms of the Vienna School have been many. Some have found it to be
too coldly austere, too far removed from the real world in its principled re-
jection of any appeal to, say, history or sociology. Some have objected that
the system was too self-contained, too obsessively rational to have much at-
traction to practicing lawyers. It sometimes seemed more like an exercise in
pure mathematics than in law. H. L. A. Hart, a professor of general jurispru-
dence at Oxford University, expressed scorn for the Vienna School’s “obsti-
nate search for unity and system” in the teeth of the variety and diversity of
the real world. Indeed, the spirit of the Vienna School was a far cry from
the original antirationalist, antisystem approach of Comte and the empiri-
cal positivist lawyers of the nineteenth century. But it remains as probably
the foremost example in the history of international law of a thoroughly
worked-out, self-contained, coherent system of thought. Wolff would have
been proud of it, even if Comte would not.
Liberalism
In certain respects, liberalism continued along the lines marked out in the
nineteenth century—supporting freedom of trade and investment, account-
able government, and respect for individual human rights. There were also
some important changes. One is that liberalism now, for the first time, be-
gan to have a constituency among professional international lawyers. In
addition, there was an important new element in the conceptual mix: strong
support for collective security policies of the type adopted by the League
Covenant. This was, of course, a principal legacy of that archetypal liberal,
Woodrow Wilson.
The intellectual home of this new avatar of liberalism was not primarily
international law, but rather a newly created academic discipline called in-
ternational relations. This was largely an initiative of the English-speaking
world. At its inception, it was regarded as the scientific study of the preven-
tion of war and the promotion of world peace. The first academic chair in
the subject was created in 1919 at the University of Wales at Aberystwyth—
named, appropriately, for Woodrow Wilson. Its charter stipulated that the
subject be studied “with special reference to the best means of promoting
peace between nations.”
In the United States, there were several prominent liberal figures in inter-
national law who pressed for increased cooperation by their country with
the League of Nations and for American adherence to the World Court
(without success on both counts). One was Manley Hudson, who was unable
to persuade his country to ratify the World Court Statute, but who went
onto the Court bench himself in 1936. Other major liberal figures of the
period included James Shotwell of Columbia University and also the Carn-
egie Endowment for International Peace and Charles Fenwick of Bryn Mawr
College (where Woodrow Wilson had previously taught). Perhaps the most
prominent of the American liberals was Quincy Wright (the brother, inci-
dentally, of the famous population biologist Sewell Wright). Wright helped
to establish the first program in international relations in his country in
1931, at the University of Chicago, where he taught political science. He was
a consistent champion of closer cooperation between the United States and
the League and an advocate of the view that traditional neutrality law was
being superseded by collective security.
In Europe, liberalism had two prominent spokesmen, one in public life
and the other in the academic world. The public figure was Nicolas Politis.
We have encountered him as the foreign minister of Greece at the time of
the Paris Peace Conference. He continued to be active in government ser-
vice. As an ardent champion of collective security, he was an appropriate
(and dedicated) representative of his country at the League headquarters in
Geneva. In this vein, he (like Wright in the United States) was outspoken in
his belief that the traditional law of neutrality must be regarded as obsolete
in an age of collective security. It had been replaced by a duty on the part of
all states to band together to defeat aggressors—if not by military means,
then at least by abandoning the old neutral idea of impartiality and em-
bracing the notion of a duty to assist victims of aggression and to isolate
aggressors.
The other major liberal figure was an academic, Hersch Lauterpacht, who
was British by adoption, though originally from Galicia (the Austrian-
owned portion of Poland). His father was a timber merchant. When young
Lauterpacht was mobilized into the Austrian armed forces in the Great War,
he was put to work in his father’s factory, which had been requisitioned. Af-
ter the war, he studied at the University of Vienna, under Kelsen, although
he would go on to reject many of his teacher’s doctrines. In 1923, and barely
able to speak English, he moved to Britain and worked as a research assis-
tant for Arnold McNair (a future World Court judge) at the London School
of Economics. He became a lecturer himself, and a British national, also
qualifying as a lawyer in England. In 1938, he was installed in the Whewell
professorship of International Law at Cambridge University (as McNair’s

successor).
Lauterpacht soon revealed himself to be a scourge of mainstream positiv-
ism. He scornfully characterized the typical positivist lawyer as “a mere
chronicler of events laboriously woven into a purely formal pattern of a legal
system.” He forthrightly rejected the fundamental tenet of positivism, that
the consent of states is the foundation of international law, insisting instead
that the rules of international law “had their birth independently of [states’]
express or tacit consent.” He allowed only a marginal role to consent: as be-
ing required for the making of specific new rules of law. But he insisted that
consent is not a foundational principle of international law in general, as the
positivists believed. Instead, he maintained that the principles of interna-
tional law arise out of “the fact that States form a legal community.”
Another feature of positivism that Lauterpacht attacked was the dualism
of Triepel and Anzilotti. Lauterpacht pronounced himself to be in favor of a
“deliberately monistic” stance. International law, he contended, is “the supe-
rior and comprehensive legal order of which the systems of national juris-
prudence are in a real sense delegated systems of law.” Consequently, the
norms of national and international law are, in his opinion, of essentially
the same character, stressing “the fundamental analogy of individuals and
States, with the resulting approximation of the moral standards underlying
both.”
Liberalism was therefore much more firmly part of the international legal
scene now than it had been in the previous century. There was still no single
comprehensive treatment of it, so it remained less visible than its rivals as an
intellectual school of thought. It was more in the nature, now as before, of a
program for various reforms than a corpus of systematic doctrine. In this
respect, it contrasts with solidarism, which achieved a high level of intellec-
tual development during this period.
The Solidarist (or Sociological) School

The beginning of the solidarist (or sociological) school in the nineteenth cen-
tury, in the writing of Durkheim and Duguit, has been noted previously. It
was only in the interwar period, though, that this approach to international
law received, for the first time, systematic treatment. Actually, “treatments”
in the plural is more accurate, since there was no single body of doctrine
constituting solidarism, in the manner of the Vienna School. Solidarism
instead was a loose confederation of approaches bearing a variety of names
such as functionalism or institutionalism. Three features shared by these
disparate perspectives justify their placement together under the single
banner of solidarism. One was an insistence on seeing international law as
an outgrowth of actual social relationships in the real world. This was the
sociological component. Second was the stress on the interdependence of
states, rather than on independence, and the general downplaying of state
sovereignty. Third was a basic optimism—and more specifically, a belief
that international law is fundamentally rooted in consensus rather than in
conflict.
In its sociological character, solidarism’s contrast with the rationalism
and “purity” of the Vienna School was notably sharp. In place of the austere
logicism—the “pure theory” untrammeled by considerations of awkward
reality—the solidarists took an intense interest in the rich complexity and
diversity of real social life. It is therefore hardly surprising to find that major
contributions to this way of thinking were made by sociologists and politi-
cal scientists, in addition to lawyers—hence the appropriateness of “socio-
logical school” as a possible alternate label for solidarism. The various soli-
darist approaches were in agreement with the Vienna School, however, in
rejecting the mainstream positivist support for state sovereignty.
One leading figure in the solidarist tradition had been active before the
War: the Chilean writer Alejandro Álvarez. Apart from him, the champi-
ons of this philosophy of law were all of postwar vintage. One was a Swiss
lawyer named Dietrich Schindler, who proudly proclaimed himself a sup-
porter of “the sociological method.” The German writer Wolfgang Fried-
mann, in a similar spirit, regretted that there had been, thus far, “a fatal ne-
glect of the essential social foundations of law.”
In many ways, the solidarists and liberals were close together, especially
in their shared support for collective security arrangements. Politis provides
the best illustration of this point, as he could be fitted comfortably into both
categories. We have noted his views on collective security and neutrality. He
could be readily classified as a solidarist, too, by virtue of his insistence on
regarding law as “the outcome of solidarity created by human needs” rather
than as a product of transcendental, eternal truths. In this, he expressly
invoked Duguit. He was also at one with the solidarists in his harsh criti-
cism of state sovereignty, which he insisted “must be abandoned, or else the
binding character of international law must be denied.” He was nothing if
not consistent in his stance. If (as he favored) sovereignty is to be abandoned
altogether, then along with it, the concepts of the absolute equality of states
and the fundamental rights of states must also be ruthlessly discarded. He
explicitly allied himself with Álvarez in denying the voluntarist doctrine of
the real personality of the state.
The most systematic writer in the solidarist cause was a French lawyer,
Georges Scelle, who was a direct intellectual successor to Durkheim and
Duguit. He was active in labor affairs and taught both international law and
labor law at the University of Dijon for some twenty years. As a partisan of
the political left, he was active in public affairs, serving briefly as a chef de
cabinet to the minister of labor in the government of Édouard Herriot in
1924–25. For over thirty-five years, he served the International Labor Orga-
nization as a member of its Commission of Enquiry on International Labor
Conventions. In 1933, he moved from Dijon to the University of Paris. The
detailed statement of his solidarist vision of international law was set out in
a book entitled Précis de droit des gens (Summary of the Law of Nations) in
1932–34.
Underlying Scelle’s legal thought was a conception of society that had a
strongly biological tinge, seeing all of the components of a social system as
working together, in the manner of the organs and systems of a living crea-
ture. This gave his thought a certain affinity to organicist conceptions of
natural law. While he had a cautious respect for natural law, primarily for its
idealistic character, he also insisted that static natural law—that is, a system
of a fi xed and unchangeable set of principles—must be rejected, in favor of
what he called a “natural law of social development.” This was regarded as
dynamic in nature and was expressly described as “a biological law.” At
the heart of his system was what Scelle called “objective law,” which was the
law that best corresponded to the social character and needs of a given soci-
ety. This was not—or not necessarily—the same as positive law, which sim-
ply reflected the will of those holding political power at a given time.
A fundamental feature of Scelle’s thought was his insistence that interna-
tional society consists of individuals rather than of states. This entailed strong
opposition to the voluntarist version of positivism, with its focus on states as
real persons and the true subjects of international law. In this, he was in
agreement with the Vienna School. He was also a sharp critic of the dualism
of the common-will school, contending instead—like Kelsen—that legal sci-
ence must comprise, ultimately, a unified system with a worldwide reach
and no sharp separation between national and international law. As a re-
sult, state officials must be regarded, on Scelle’s thesis, as acting in a dual
capacity—as servants of both national law and international law at the same
time. Scelle described this phenomenon as dédoublement fonctionnel.
This has been rendered in English as “role splitting,” but something like
“dual-role functioning” seems more accurate (if awkward).
The picture of the world drawn by Scelle has been described as “federal-
ist,” in the sense that he saw the states of the world not as independent enti-
ties, seeking to maximize their own self-prescribed interests, but instead as
components of a larger international society. International law should there-
fore be seen as the constitutional law of that larger society—integrating the
various units and levels of government into a (more or less) coherent system
and allocating competences to the various levels of government, broadly in
the manner of national constitutions. Part of the role of this law is to ensure
that the various components of this integrated system do not overstep their
allocated functions.
If Scelle was in agreement with the Vienna School in holding a monist
conception of law, and also in rejecting the voluntarist and common-will
versions of positivism, his overall outlook was very different. Where Kelsen’s
approach was coldly intellectual, with all extraneous matter carefully ex-
cluded from his “pure” theory of law, Scelle’s thought was strongly rooted in
the economic and social trends of the real world. His theory was very far
from “pure.” In his opinion, legal norms emerge out of actual international
practice. “[T]he essential objective norms of all of international society” were
identified by him as “notions acquired by the universal conscience” and offi-
cially recognized by governments.
Scelle candidly admitted that his federalist, or constitutional, vision of
international law existed, as yet, only in the most rudimentary form. But
he was optimistic that it was on its way. The task of realizing his vision was
expressly compared to that of Sisyphus pushing his rock ever uphill, only to
have it roll back down. He expressed confidence (or perhaps faith) that, in
each round of this chore, the constitutional rock rolled downward by a slightly
smaller amount than before. It is not surprising that Scelle’s ideas of world
federalism were regarded with a certain degree of detachment, if not be-
musement, in international-law circles. Hudson, for example, reviewing
Scelle’s Précis, wryly characterized it as “not a book of the international law
of today, but it may be a book of the international law of tomorrow.” It
proved a prescient remark, as Scelle’s ideas became the foundation for the
constitutionalist movement in international law in the late twentieth and
early twenty-first centuries.
Another manifestation of the solidarist outlook went under the label of
functionalism, which in turn came in several variants. One of them was a
fairly straightforward descendant of nineteenth-century St.-Simonism, with
its technocratic, nonpolitical outlook. It stressed the integration of the world
in nonpolitical ways. Its leading figure was the Romanian writer David
Mitrany, whose principal inspiration was the New Deal of Franklin Roose-
velt in the United States in the 1930s.
Paralleling Mitrany’s work, but more strictly in the legal vein, was the
writing of the American scholar Pitman B. Potter. He was a successor to
Reinsch in the Department of Political Science of the University of Wiscon-
sin—as well as in his focus on nonpolitical international organizations as a
powerful force for world order. He became the first systematic expounder of
a law of international organizations, with a massive treatise on the subject in
1922. Central to his outlook was an insistence on the need to “get below
the logical, rhetorical, even literary forms of the law to its basic conditions
and foundations.” The true bases of international law, he contended, are
found in “the fundamental physical conditions of national life and interna-
tional relations and their sociological interpretation.” He articulated a vi-
sion of a rationally administered world, less on the basis of legal norms than
of scientific management. “[W]hat is needed for the regulation . . . of inter-
national relations,” he insisted, “is not ‘international law’ in the conven-
tional sense, but legislation and administration.” He went on to assert that
“[i]t might almost be said that an ounce of international administration is
worth a pound of ‘international law.’ ”
An intriguingly eclectic brand of solidarism was put forward in the United
States by an American political scientist named Harold Lasswell, who was
based at the University of Chicago. His early work was in the field of social
psychology, on the subject of war propaganda. This led to a long-term interest
in the ways in which symbols and signs could be employed by elites to form
and manipulate the opinions of the masses. From this beginning came an
image of the politics as, essentially, the process of the molding and control-
ling of masses by elites. Along with this elitist outlook, there was a strongly
irrationalist component to Lasswell’s way of thinking. Th is came partly
from early studies in Freudian psychoanalysis, combined with his insights
into the way in which propaganda could be used to manipulate the thoughts
and actions of people. “[T]he consensus on which order is based,” Lasswell
candidly stated, “is necessarily non-rational.”
Applying this approach to the legal sphere, Lasswell saw international law
as the creation of what he frankly called a “world-myth”—a myth that could,
however, actually become a reality by winning the acceptance of the popula-
tion of the world. A world community, he maintained, cannot be created
solely by material means, such as rules on cooperation in waterways, energy
supplies, communications, and trade policy. What is required, in addition, is
“emotionalized and idealized devices.” The most urgent quest of those seeking
an orderly world is therefore the search for “world-symbols” that will effec-
tively “convey the sense of wholeness and interrelatedness.” Politics is there-
fore, in essence, “the management of symbols and practices related to the
shape and composition of the value pattern of society.” These ideas made
little impact on international lawyers at the time. But that would change in
due course.
The Revival of Natural Law

The continued grip of positivism in international law meant that, for the
most part, natural law continued, as in the nineteenth century, to play only
a marginal role in international legal thought. But it attracted several nota-
ble adherents. The most forthright was a French lawyer named Louis Le
Fur. He came from a Catholic Breton family and studied under Antoine
Pillet. His original specialty was administrative law, but he took up interna-
tional law after the war. His allegiance to natural law largely stemmed from
his contacts with Catholic circles, where a revival of Thomist natural-law
ideas had been under way since the late nineteenth century. In 1927, Le Fur
presented his modern theory of natural law in a series of lectures at the
Hague Academy of International Law.
His theory largely echoed that of Wolff in the eighteenth century—and,

before him, the rationalist theory of Aquinas from the Middle Ages. He
insisted on the existence of “an objective justice, . . . independent of man.”
He also stressed that law must take full account of the double nature of hu-
man beings: as material beings, on the one hand, and as moral and spiritual
beings on the other. The moral aspect was seen as the more fundamental.
His system was broadly axiomatic in character, in that natural law was seen
to be founded on, ultimately, two basic duties: to honor commitments freely
entered into, and to repair any injury resulting from an unjust act. These
core principles are transcendental, timeless, and universal. The application
of them to particular historical or cultural circumstances is another matter,
and this is dealt with by what Le Fur called the “rational law.” This rational
law determined the specific content of laws in individual societies, and it
was a human creation. Finally, the task of positive law was to implement
natural law by providing for sanctions against violators. The similarity to
the medieval emanationist theory of the ius gentium, as well as to Wolff ’s
concept of voluntary law, is clear.
The outstanding natural-law advocate in the German-speaking world was
the Austrian lawyer Alfred Verdross. He began as a prominent member of
the Vienna School. As such, he demonstrated how easily the gap between the
Vienna School and natural law could be bridged. In essence, nothing more
was required than an alteration in the basic norm that undergirded the Vi-
enna School’s normative system. In place of Kelsen’s basic norm of the law-
creating power of custom, Verdross substituted what he called the general
sense of justice. This general idea of justice, Verdross believed, was an ascer-
tainable, objective, universal conception, eternally valid and applicable to
all cultures. Perspectives on, or ideas about, this fundamental sense of jus-
tice admittedly varied across cultures, but “the absolute value of justice” it-
self was universal.
Verdross’s conception of natural law was essentially organicist, in the
sense that it was not seen as something transcendental or set apart from hu-
man nature, in the manner of mathematical axioms. Instead, it was seen as a
sort of collective inner conscience of the international community. As such,
the sense of justice underlay and suff used positive law. He spoke of “ante-
rior” and “posterior” law, with anterior being the fundamental principles of
natural law, and posterior law—that is, state-created positive law—being
merely supplementary. The basis of the anterior law was the general human
sense of justice.
A position similar to that of Verdross was expressed by a most unlikely
figure: Erich Kaufmann, who, prior to the war, had been a stalwart of the
neo-Hegelian, voluntarist camp. Perhaps his war experience had done
something to dim his earlier enthusiasm for armed conflict. He served in
the ranks of the German army and was wounded at the Battle of the Somme
(winning the Iron Cross in the process). Whatever the explanation, there is
no doubt that, after the war, his mind moved in different directions than his
early neo-Hegelian thought. He had a high profi le in the German interna-
tional legal world, acting as a consultant to the German foreign ministry
and representing his country in a number of cases in the World Court,
chiefly on minorities issues, with Poland on the other side. He also repre-
sented the Free City of Danzig in World Court litigation, and Austria in the
Customs Union case in 1931. His early neo-Hegelian stance was not wholly
repudiated. He remained very state-centered in his legal thought and, in
his politics, a conservative nationalist with an instinctive hostility to the
Weimar Republic.
Ironically, Kaufmann’s continued adherence to conservative nationalism
may have pulled him toward natural-law thought. Natural-law ideas could
be useful weapons for attacking the Versailles peace settlement. Positivism,
with its strong support for treaties as a principal source of law, offered less
scope in this direction. In all events, after the war, Kaufmann discarded his
previous neo-Hegelian allegiance and endorsed the idea of an unwritten law
as the basis of positive law. In supporting the idea of “the unity of law in
all the domains of law,” he expressed sympathy for Kelsen’s monism. He
contended that natural law concerned “real categories of general and eternal
order.” In an outright repudiation of his own voluntarist past, Kaufmann
now expressly denied that law could be regarded as “a ‘creation’ of the will of
States.” It must be acknowledged that “there are unwritten rules of law which
are imposed upon [the] wills” of states. The only true source of interna-
tional law, he now maintained, is “objective reason.”
Kaufmann’s version of natural law resembled that of Verdross in being
strictly nontranscendental. His “fundamental norms of law” were seen as
the inner soul or formative force or living energy of the positive law.
In explaining this idea, he referred to “the inherence of reason in reality and
the participation of reality in reason.” Natural law was therefore not re-
garded as being in outright opposition to positivism. Rather, these were re-
garded as two aspects of law—the external and the internal—operating in
coordination. The role of natural law in this partnership was to act as a kind
of inner force—a voice of conscience, if you will—guiding the process of
positive lawmaking into constructive and cooperative channels.
In the English-speaking world—a heartland of empirical positivism—
two major figures had at least some affi nities to the natural-law tradition,
one in the United States and the other in Britain. The American was James
Brown Scott, the longtime leading figure in the American Society of Inter-
national Law (and editor of its journal), who was also active in the Carne-
gie Endowment for International Peace. It was late in his career, in the
1930s, that he became increasingly disillusioned with positivism, of which
he regarded Grotius as the chief forerunner. He then took it upon himself
to publicize the work of the earlier Spanish writers—chiefly Vitoria and
Suárez. In carry ing on this intellectual missionary activity, he inevitably
came to be knowledgeable about, and sympathetic to, the natural-law tra-
dition. His reward for this labor came in an artistic form. In 1935–37,
work was undertaken on a large mural in the Department of Justice in
Washington, D.C., depicting the great lawgivers of human history. In the
course of the painting, it was realized that no authentic likeness of Vitoria
could be located. To fi ll this gap, the Spanish friar was depicted with the
features of Scott—an interesting form of “job-sharing” in the quest for
immortality.
The British writer who spoke favorably of natural law was James L. Bri-
erly, professor of international law at Oxford. He candidly conceded that a
regard for natural law was a minority taste among international lawyers.
Modern writers, he wryly noted, tended to treat it as “a superstition which
the modern world has rightly discarded.” Brierly nonetheless praised the
natural-law tradition for its recognition of “the existence of purpose in law,”
and also for its constant reminder “that law is not a meaningless set of arbi-
trary principles to be mechanically applied by courts, but that it exists for
certain ends.” The practical contribution that natural law can make, in
Brierly’s view, is to provide a basis for dealing with situations that are not
covered by specific rules of treaties or customary law. Natural law could
make of international law a comprehensive, coherent, gapless system instead
of simply a collection of specific rules on which states happened to have

reached agreement.
Support for this conception of natural law was readily available in the
statute of the World Court. In identifying the law that the Court was to ap-
ply, the statute naturally identified customary law and treaties. But it added
a third source: “general principles of law accepted by civilized nations.”
These would be applied in situations, as envisaged by Brierly, in which there
was neither a treaty in force nor an applicable customary rule that could re-
solve a dispute. Among those who saw this provision as a reemergence of
natural law into juridical respectability—and welcomed it as such—was
Lauterpacht, who lauded this provision of the Court’s statute as “a death
blow to positivism.”
The proclaimed “death” of positivism, not surprisingly, turned out to be
something of an exaggeration. But these developments of the interwar pe-
riod indicated, if nothing else, that the opposition to it was obstinately re-
fusing to surrender. In fact, positivism was finding allies in some seemingly
unlikely places, such as revolutionary Russia.
The Challenge of Socialism

Karl Marx, the leading figure in socialist thought, made no attempt to de-
vise a specifically socialist theory of international relations, although he did
not hesitate to voice a hearty contempt for liberal free trade doctrine. The
great moving force of history, in his view, was not conflict between states,
but rather conflict between economic classes. It was only after the Bolshevik
takeover in Russia in 1917 that a national government appeared on the scene
with a strong ideological commitment to Marxian socialism—and only then
that the need to think about interstate relations became imperative.
As in the case of the French Revolution, there were intimations, at the
beginning, of a radical break with the past. In November 1917, on the mor-
row of the revolution, a Decree on Peace was promulgated, which proclaimed
“the unconditional and immediate annulment” of various secret treaties
concluded by the previous regime—but only to the extent that such treaties
were aimed at “securing advantages and privileges for the Russian landown-
ers and capitalists” or the retention of annexations. The Bolshevik leader
Vladimir Lenin explained that the new government rejected “all clauses on
plunder and violence,” but that it positively welcomed “all clauses containing
provisions for good-neighborly relations and all economic agreements.”
On the broader question of what approach to take to international law,
Soviet doctrine underwent a number of shifts. At all times, however, Soviet
attitudes were underpinned by a basic belief in an underlying and perma-
nent hostility between capitalist and proletarian economic classes. Th is in
turn was now reflected on the international level in the belief in a natural
hostility between states dominated by those classes, that is, between Bolshe-
vik Russia, on the one hand, and the rest of the world on the other. There
was an equally natural suspicion of traditional international law, since it was
wholly a product of relations between the capitalist states.
The first socialist exposition of international law was by Yevgeny A. Koro-
vin, whose career would be something of an intellectual roller coaster ride.
In 1924, he wrote a book entitled The International Law of the Transition
Period. Reflecting the Bolshevik confidence that the laws of history were
firmly on the side of socialism, he anticipated the coming era of global social-
ism would be characterized by an appropriately new kind of international
law, in which the solidarity of the industrial working classes would be the
foundation. This appears to have been essentially a solidarist vision, with in-
ternational law being transformed in the long term into what one (nonsocial-
ist) commentator described as “a federal law for a world-wide Union of Soviet
Socialist Republics.”
That heady vision, however, was for the future. In the immediate term,
Korovin maintained that no unity with the capitalist world was possible on
the juridical, moral, or ethical planes. These two realms lived in a state of
permanent Hobbesian hostility vis-à-vis one another, much in the manner
of the Dar al-Harb and the Dar al-Islam of medieval Islamic law. As in the
original Hobbesian vision, though, it was recognized that actual armed
conflict was not inevitable. A certain degree of functional cooperation was
possible in three areas: humanitarian interests (such areas as public health
or the preservation of historical monuments), technical areas (such as com-
munication and transport), and matters of social or political importance.
Socialist and capitalist states, Korovin explained, can “meet on the strictly
limited ground of mutual concessions” and thereby conclude treaties with
one another. The effect, he pronounced, is that, even though “[t]he Tower of
Babel of world-wide unity is left in ruins . . . , the number of individual
agreements increases daily.” In his opinion, treaties were the sole source of
international law, since customary rules had been established wholly by the
capitalist states. Socialist legal thought in this regard had a distinct affinity
with the common-will variant of positivism (although Korovin rejected the
distinction made by the common-will school between law treaties and con-
tract treaties).
Certain key aspects of mainstream positivism featured in Korovin’s
thought—and remained central to socialist theories of international law.
One was a hearty rejection of natural law, as contrary to the Marxist prin-
ciple that ideas arise out of real economic and social relationships, and that
universal and eternal norms do not exist outside of the historical and eco-
nomic process. Korovin was also a supporter of the voluntarist principle
of autolimitation. In addition, he insisted on a strict and rigorous equality
of all states. Also consistent with positivism was an explicitly pluralistic and
contractual outlook on international law. Korovin denied the existence of
a single, universal system of international law. He posited instead that there
were various different systems or “circles”—one for the Western Hemisphere,
another for the major powers, another for national minorities, another for
colonial states. There was still a further one dealing with relations between
socialist countries and capitalist ones.
In certain respects, Korovin marked out new departures in international
law, of which two may be noted briefly. Neither was exactly new. First was a
willingness to consider nonstate entities to have a role to play as subjects of
international law. Here, there was a distinct echo of the nationality school of
the nineteenth century, with its stress on nations rather than states as the
primary units of collective social and political life. For nations, however,
Korovin substituted economic classes—which differed from nationalities in
having a worldwide distribution. A second quasi-innovation of Korovin was
his employment of the principle of the sovereign equality of states in the ser-
vice of opposition to imperialism. He condemned the various badges of
legal inequality such as the extraterritoriality systems operated by the major
powers in the developing countries. Throughout its history, anti-imperialism
was to be a powerful strain of socialist doctrine.
The ideas of Korovin were generally echoed—at least initially—by E. B.
Pashukanis, who became the leading theorist on law in general during the
early Stalin period. Although not an international-law specialist, Pashu-
kanis wrote the entry on international law in the Great Soviet Encyclopedia of
1929. He retained the generally positivist outlook of Korovin, expressing
approval of the work of such pragmatist figures as Zouche and G. F. von Mar-
tens. He favorably contrasted their focus on “actual international customs and
treaties” with the stress of the Grotian (i.e., rationalist) writers on “abstract
concepts.” Korovin was praised for articulating a new and distinctively so-
cialist theory of international law. According to Pashukanis, the world was
now in a transitional period, when socialist and capitalist states were both
present on the world scene—with the result that international law must now,
in this transitional time, take the form of “a temporary compromise between
two antagonistic class systems.”
Support for Korovin’s opinions, however, was soon to fade dramatically.
When Pashukanis wrote his other major piece on international law, a text-
book entitled Outlines of International Law in 1935, it was evident that Ko-
rovin was decisively out of favor. One reason for this was his downplaying of
the role of the state and his acceptance of nonstate actors as subjects of inter-
national law. These ideas went against the more hard-edged totalitarian spirit
of Stalinism. Also incompatible with prevailing Soviet official doctrine was
Korovin’s rejection of custom as a source of law. Pashukanis now asserted
that custom and treaties were of equal value as sources. Korovin’s pluralis-
tic view of the various circles of international law also lost official support.
Now it was insisted that the form of international law was the same as it had
been in pre-Bolshevik days, even though the content of Soviet foreign policy
differed greatly from that of the tsars.
In the face of these attacks, Korovin dutifully made a full recantation of
his views in 1935. But at least he managed to survive the turbulent times,
which was more than could be said for Pashukanis. He fell terminally from
favor—branded an enemy of people in an article in Pravda in 1937 and
purged the following year. His precise fate has never been ascertained. The
reason for Pashukanis’s fall from grace had mostly to do with his ideas
about domestic law, but some of his international-law ideas were also con-
demned. Most notably, the idea of a distinctively socialist international law
lost official favor, as confirmed by a set of theses on legal matters adopted by
a council of jurists in 1938.
For all of the radicalism of Soviet ideology, it does not appear that any
very major challenge was actually mounted to Western ways of thought in
international law by Soviet writers. It is more accurate to say that the Soviet
writers sought to employ existing doctrines in their favor—and that main-
stream positivism offered ample scope for this strategy. A resolute insistence
on the principles of respect for state sovereignty, nonintervention, and the
strict equality of all states were consistent features of socialist thought—and
also core components of mainstream positivism. Socialist writers parted
from the positivists chiefly in claiming to have a superior insight over the
nature of international law as a product of historical circumstance. But
even here, socialists and positivists were largely in agreement, since they
both viewed law as man-made, and hence as necessarily a product of his-
torical and material conditions. Soviet writing accordingly tended at
times to have a certain blustery character—aggressively asserting its nov-
elty and superiority, while in fact fitting very comfortably within the posi-
tivist mainstream.
Fascists and Nazis

Fascist Italy and Nazi Germany made no lasting contributions to interna-
tional legal thought. In the Italian case, fascist thought moved largely in the
existing intellectual channels of mainstream positivism—and particularly
its extreme neo-Hegelian component. There was a powerful stress on state
autarky, or self-sufficiency, dutifully in line with Benito Mussolini’s political
and economic program. In this regard, fascist thought may be seen as an
extreme version of mainstream positivism’s stress on the independence
rather than the interdependence of states.
The only Italian fascist writer who devoted even token attention to inter-
national law was a professor of corporative studies (a fashionable subject at
the time) at the University of Pisa named Ugo Spirito. He began his intel-
lectual career as a positivist, gravitating to neo-Hegelianism. Attacking lib-
eralism for denying the existence of frontiers and nations, he called for “the
triumph of the corporative idea throughout the whole world.” He put for-
ward the thesis that the world should comprise an interlocking network of
autarkic, planned economies—“a system of collaboration between nations,”
as he described it, “under which every country, by organizing its economy
in a planned way, takes account of the organization prevailing in other
countries.”
In Nazi Germany, the position was different. Here, more attention was
given to international law (although not by Adolf Hitler, who despised law-
yers). There were two principal features of international law, one of them
new and the other not. The one that was not new was the deployment of
international-law arguments to attack the validity of the Versailles peace
settlement. This had been a theme of German activity since 1919. This attack
had been mounted from both the political right (e.g., by Kaufmann) and left
(e.g., by Schücking, who had a pacifist background). It is notable that natural-
law ideas played a part in this effort, in the form of an assertion that the Ver-
sailles regime should be regarded as invalid to the extent that it transgressed
fundamental principles of law, such as the equality of states.
The new approach offered by the Nazis was a racist perspective on inter-
national law. Even this, though, was less a complete innovation than a
perversion of the ideas of the historical school and the nationality school of
the nineteenth century. Nazism had an affinity with the historical school in
its conception of the nation as a Volkstaat rather than as a Rechtsstaat—
that is, in its stress on the primordial and spontaneous relations of peoples,
instead of on formal state structures, as the foundation of political life. In
the Nazi view, the will of the nation emanates, in a quasi-mystical fashion,
upward from the consciousness of the people. It is not handed downward
by the will of a sovereign. Th is much was compatible with the general out-
look of the historical school. The principal Nazi innovation was to hold that
this collective will or consciousness is not national in character, as it had
been for Mancini and Mazzini, but instead is racial. Moreover, there was
no trace in Nazi thought of the broad-minded, tolerant cosmopolitanism of
Mazzini, which would hold all the races of the world to be equal in their
diverse contributions to the great cause of humanity at large. To the Nazis,
races were ranked hierarchically, with the Aryans generously accorded the
top position.
The founding writer of the racist school of international law was Helmut
Nicolai, in a book ominously entitled Die Rassengesetzliche Rechtslehre (Le-
gal Doctrine Based on the Law of Race), published in 1932. It asserted that
the Volk is “the primary, meaningful unit of mankind.” In line with his-
torical school thought, Nicolai expressed hostility to what he regarded as ar-
tificial law promulgated by state authorities, preferring the law that emerged
spontaneously from the life of the people.
Nicolai fell out of official favor in 1935 (for reasons unrelated to his legal
opinions), but there were others to take his place. Norbert Gürke was one.
He was originally Austrian but had been compelled to flee to Germany be-
cause of his Nazi views. He has been described as the author of one of “the
crassest expressions of National Socialism,” a book on the influence of Jew-
ish writers on international law. More substantively, he gave the racial
theory of international law its definitive legal exposition in 1935 in a book
entitled Volk und Völkerrecht (Race and International Law). Another prom-
inent Nazi writer was Gustav Adolf Walz. Walz even received a degree of
international respectability by being invited to lecture at The Hague Acad-
emy in 1937—not, however, on Nazi theories of law but on the far more ano-
dyne topic of the relation between national and international law.
The Nazi writers did not maintain that the various racial groups were
international persons in the legal sense. They did posit, though, that racial
characteristics provided the key to a deeper understanding of present—
and future—political and legal relationships. Gürke, for example, con-
tended that the racial foundations of societies led to the formation of spe-
cific state forms and ultimately to specific expressions of international law.
Jews and Bolsheviks, he concluded, must be seen as altogether outside the
international legal order. In this regard, Nazi writers had certain affi ni-
ties with solidarist or sociolog ical writers, in their insistence that interna-
tional law does not have an independent existence of its own, but instead is
a product of other forces. There was a stress on the dynamic and ever-
changing character of international society, also a feature of solidarism.
International law, it was insisted, must reflect these changes. As such, it
must be closely tied to the facts and situations confronting it. Th is atti-
tude led Nazi writers to be strongly hostile to the Vienna School, with its
abstract and normative character, so far removed from the visceral emo-
tions of the common folk. (Kelsen became an early target of the Nazis
when they took power.)
In both Italian fascism and German Nazism, there was a pronounced
militaristic strain. In terms of legal thought, it took the somewhat vague
form of an entitlement of peoples to resources. If a nation was to be truly
self-sufficient, as the Italian fascist government dreamed, then it naturally
had to have a sufficient resource base at its disposal. In broadly similar
terms, Germans were held to be entitled to sufficient territory to live out
their full destiny as a superior Volk. This line of thought culminated in

ideas of “vital space” (spazio vitale) in Italy and Lebensraum (“living space”)
in Germany. Neither the German nor the Italian government, however,
was in any great need of learned lawyers to justify their aggressive foreign
policies.
One of the more immediate, and down-to-earth, tasks of the Nazis after
taking power was to purge international-law writers whose opinions were
incompatible with those of the new order. They were a distinguished group.
An early, and prominent, victim was Kelsen at the University of Cologne,
who was on the first list of university professors to be dismissed. According
to Walz, the Vienna School ideas had been “thought up by some Jewish
brain.” Kelsen went to Geneva, where he taught for the next seven years,
and then, in 1940, to the United States. After several years at Harvard Law
School, he moved to Berkeley’s Department of Political Science and taught
there for the remainder of his career.
Kelsen was only the first victim of many. Wolfgang Friedmann was dis-
missed from his post as a judge in a labor court. He made his way to Britain
in 1934, took British nationality, and became a barrister and law teacher. He
later lived in both Canada and Australia (where he produced the fi rst com-
prehensive treatise on Australian administrative law), and then subsequently
moved on to the United States, where he taught at Columbia Law School.
Kaufmann, who had a Jewish background, was removed from his academic
posts, although he continued to write (always in French during this period).
He left Germany in 1939, first to the Netherlands and then to Britain. Gus-
tav Radbruch, a prominent legal philosopher, also went to Britain. Hans
Morgenthau, an eminent lawyer and political scientist (who was Jewish),
went initially to Britain and later to the United States. Strupp, also of Jewish
ancestry, fled first to Turkey and then to France. He was there in 1940, when
he received a welcome job offer from Columbia University in New York, but
he died of a heart attack before he could take it up. Schücking, on the
bench of the World Court, was fortunately outside the Nazi reach (he died
in 1935). But he was removed from his position of director of the Institute for
International Law in Kiel (which is now named after him). He was also dis-
missed from the editorship of the Zeitschrift für Völkerrecht (and replaced
by Walz). On the whole, in international law, as in so many fields, the
Nazi policies provided great intellectual enrichment to the countries that
played host to these eminent refugees. But much suffering was inflicted in
the process.
Desperate Times
In the 1930s, the League of Nations unraveled. An early casualty was the mi-
nority protection system. It had never worked very satisfactorily at the best of
times—and these were far from the best of times. The German-Polish bilat-
eral treaty on Upper Silesia of 1922 had been concluded only for a fifteen-year
duration, and there was no surprise when, in 1937, it was allowed quietly to
die off without even an attempt at renewal. There was, however, considerable
surprise—and consternation—when the Polish government, in 1934, dra-
matically announced the repudiation of its minorities treaty with the League.
Minority protection by the League, it protested, had been “applied in an abu-
sive manner,” as an instrument of political pressure.
There were dramatic failures, too, in the realm of collective security, with
the Japanese takeover of Manchuria in 1931 and the Italian conquest of
Ethiopia in 1935–36. One of the consequences of these setbacks was a gen-
eral loss of confidence in collective security as a bulwark against aggression.
This was manifested in several ways. Prime Minister Neville Chamberlain
of Britain candidly informed the British House of Commons in February
1938 that the League was “unable to provide collective security for anybody”
and that, as a consequence, the obligation to impose economic sanctions
against aggressors in the League Covenant was no longer operative.
In this same vein, there was a tendency for states that had previously been
neutral to reassert that status as a substitute for the unfulfilled promise of
the League. The Swiss government announced that it was reverting, “by an
instinct of self-preservation, to its full traditional neutrality.” Belgium
similarly secured its release from various collective security commitments
and resumed its former status as a neutral state. In legal circles, too, there
were assertions that the League Covenant had been amended de facto, if not
formally—that is, by way of state practice—so as to abrogate the (suppos-
edly) automatic provisions for mutual guarantee and sanctions.
The Debate over Sanctions and Coercion

In the international-law realm, liberalism was the principal victim of the
events of the 1930s, since it was the school of thought in which collective
security played the most central role. It was also the school of thought that
was most strongly committed to minority protection. Throughout the
League’s existence, there had been principled opposition to collective secu-
rity ideas. But in the febrile atmosphere of the 1930s, it moved into an at-
tack mode.
An early assailant, interestingly, was John Bassett Moore. After stepping
down from the World Court bench in 1928, he took on the role of a contro-
versialist and public polemicist. In “An Appeal to Reason” in the journal
Foreign Affairs in 1933, he launched a frontal assault on the very conception
of collective security. He decried what he called the “new psychology”
behind it, contemptuously asserting that the idea had “no visible moorings
on earth or in the sky.” He insisted that the notion was based on “a funda-
mental misconception of the nature and function of all law, whether na-
tional or international.” He voiced contempt for “shallow dupes” who urge
states to “blindly don an imported livery of ‘world ser vice,’ to be paid for on
demand, in unestimated installments of blood and treasure.”
Moore was joined in this campaign by a former student, Edwin M. Bor-
chard, a professor at Yale Law School. He echoed Moore in denouncing
the very idea of collective security as “doctrinaire . . . political theol-
ogy.” It was far better, he insisted, to rely on traditional international
law, which was “founded on practical experience of human affairs.” He
condemned collective security policy as being “promotive of confl ict,” and
asserted that “[t]he very notion of coercion . . . destroys that trust and con-
fidence and willingness to co-operate” that are essential for stable interna-
tional life. The more effective tool for keeping international peace, he
insisted, is traditional neutrality—keeping as many states as possible out
of war whenever a confl ict erupts. Collective security entailed precisely
the opposite strategy—drawing as many states as possible into any and
every confl ict—which Borchard asserted was fundamentally wrong-
headed. He favorably contrasted the law of neutrality, built on “the solid
foundations of the past,” with the law enforcement and policing approach
of collective security.
Further attacks on collective security were launched by a new school of

thought in the field of international relations known as realism. The realists
were in conscious opposition to earlier international-relations writers who
had been strong supporters of collective security in general and the League
in particular. They insisted on states as the fundamental units of interna-
tional life, and on competition for power as the principal dynamic of inter-
state relations. A general skepticism about the rule of law in interstate affairs
pervaded their writing. In the spirit of Austin, they tended to regard interna-
tional law as a dreamy, utopian system having little impact on real life. Their
outlook was summed up by the British historian E. H. Carr, with character-
istic crispness. “[U]topians,” Carr pronounced (referring to liberals), “think
in terms of ethics, and realists . . . think in terms of power.”
A close affinity is discernible between realism and the empirical version
of positivism. Both were strongly state-centered, resolutely non- (and even
anti-) utopian, and firmly insistent on state practice as the basis of sound
knowledge and analysis. The closeness of the connection between the two
was most strongly evident in the writing of a German émigré named Georg
Schwarzenberger. In the Nazi period, his status as a Jew and his activism in
Social Democratic politics combined to bring an early end to a promising
academic career. He moved to Britain in 1934 and, four years later, obtained
a teaching post in the law faculty of University College, London. Like
Quincy Wright, Schwarzenberger worked in both international law and in-
ternational relations. As an international-relations scholar, he was a realist,
condemning what he termed the “radical incompatibilities between the
[League] Covenant and political reality.” As a lawyer, he was a stalwart
positivist of the empirical stripe. He insisted that international law must be
rooted in the actual practices of states, and not in idealistic notions about
how states should behave.
The liberal camp did its best to repel these various attacks. In the United
States, Wright led the defense of collective security, chiefly in a series of de-
bates over neutrality policy that took place in the early 1930s in the Ameri-
can Society of International Law. In Britain, Lauterpacht and McNair did
the same, in the face of Schwarzenberger’s positivist and realist stance. At
the League itself, Wellington Koo, representing China, was a tireless advo-
cate of effective international sanctions against aggressor states (with his
country having an all too obvious stake in the debate). This included a force-
ful rebuttal of Chamberlain’s statement on the nonobligatory character of

sanctions.
Experimenting
The soul-searching over the nature of the League’s role—and, by extension,
of the nature of international law itself—did not, by any means, put a stop to
new thinking. One legal innovation resulted from Japan’s invasion of Man-
churia in 1931. In January 1932, American Secretary of State Henry Stimson
(who was also a prominent lawyer) announced that his country would not
recognize as lawful any situation that was created by a use of armed force.
What was especially interesting about this initiative from the legal stand-
point was that it invoked the Pact of Paris as a justification—thereby suggest-
ing the possibility of, so to speak, “grafting” sanctions onto the pact that had
not been envisaged at the time of drafting. The effect was that Manchukuo—
the Japanese-backed state that emerged as a result of the intervention—would
not be treated as an independent country but instead as a mere puppet gov-
ernment. Shortly afterward, the Assembly and Council of the League of Na-
tions echoed this “Stimson Doctrine,” as it soon became known. The fol-
lowing year, the Western Hemisphere states followed suit.
The Stimson Doctrine also won the support of the International Law As-
sociation in 1934, by way of interpretation of the Pact of Paris. But the
association went beyond nonrecognition to suggest the addition of another
sanction: the dispensing of neutral states from their normal duty of impar-
tiality in cases of aggressive war. On the association’s interpretation, third
states were entitled—by implicit interpretation of the Pact of Paris—to show
partiality toward victim states. There were misgivings about an attempt to
tamper with the law of neutrality in this way. Lauterpacht, for example, con-
tended that this was no mere matter of interpretation of the pact, but an at-
tempt to add to it a sanction that simply was not there.
It was not long before this upgraded interpretation of the pact was put to
practical use. The United States employed it on a massive scale in favor of
the Allied side in 1939–41, after the outbreak of the Second World War. In-
stead of a policy of traditional neutrality, the American government opted
instead for what came to be called, somewhat euphemistically, “non-
belligerency.” That meant the open and large-scale provision of arms and
other assistance to the Allied side—turning the United States, in President

Roosevelt’s proud boast, into “the arsenal of democracy.”
The legal case for the “non-belligerency” policy was presented by Attor-
ney General Robert H. Jackson (soon to be appointed to the American
Supreme Court). In an address to the Inter-American Bar Association in
1941, he defended his government’s policy by invoking the Pact of Paris.
Germany’s violation of the pact, Jackson asserted, justified the United
States in responding with a policy of “discriminating, qualified neutrality” in
place of the traditional kind—effectively as a sanction against Germany for its
lawless conduct. In support of this argument, he invoked the Budapest Ar-
ticles of Interpretation. Jackson even maintained that the “non-belligerency”
policy actually marked “a return to earlier and more healthy precepts,” that
is, to the spirit of prepositivist just-war thought, which he also expressly
invoked.
Support for this “non-belligerency” policy was predictably firm from law-
yers in the liberal camp—with assistance for the Allied side substituted for
erstwhile support for the now-moribund League of Nations. Predictable, too,
was the role of Wright as the most eloquent spokesman. The very notion of a
“community of nations,” he insisted, militated against traditional neutrality
and impartiality in the present grave crisis. Opposition to the “non-
belligerency” policy, however, was vigorous. Borchard denounced it as a
straightforward violation of the law of neutrality, with its fundamental re-
quirements of abstention and impartiality.
The argument on this subject abruptly vanished in December 1941, when
the attack by Japan on Pearl Harbor brought the United States into the con-
flict as a full participant in the wartime alliance. That alliance was given the
official name of “United Nations.” It was also decided—or at least hoped—
that the nations in the alliance would remain united after the guns were
silenced. The Allied states, under the ever-watchful leadership of the major
powers, would then proceed not merely to win a war but also to make a new
world in its wake. This second task proved, in many instructive ways, to be
at least as challenging as the first.
chapter ten
Building Anew
ne of the more colorful salutes to the rule of law in international

O affairs appeared in the February 7, 1940, issue of Look magazine in the
United States. Superman, the famous comic book action hero, is shown
valiantly capturing both Adolf Hitler and Josef Stalin. As he fl ies through
the air with the two rulers (literally) in hand, a terrified Hitler inquires anx-
iously of their fate. “Next stop—Geneva, Switzerland,” announces the Man
of Steel. As good as his word, Superman delivers his captives to the League
of Nations. There, a judicial-looking figure (i.e., an aged white man in black
garb seated behind a high bench with a gavel on it) solemnly pronounces the
chastened ex-leaders to be “guilty of modern history’s greatest crime—
unprovoked aggression against defenseless countries.” Superman observes
from the background—suitably deferential before the rule of law. Strength
was at the service of justice.
Before too long, life came passably close to imitating “art.” In 1946, the
leaders of Nazi Germany were placed on trial—though Hitler was deceased
at the time, and Stalin had the good fortune to be numbered among the
victors. No immigrants from the planet Krypton were present at the
Nuremberg Trials (or at least not recorded). But there was a vivid display of
superpowers—of a sort—at work. This was the power of international law to
override, in effect, the laws of individual nation-states and to deliver national
leaders of the highest rank to the hangman. The efficacy of international law
has often been doubted, but the twenty-one defendants at Nuremberg felt its
hand very heavily upon them.
International law in the post–World War II era was, in short, off to a spec-
tacular start. But the momentum was not sustained. A Cold War between
ideological blocs reduced the collective security machinery of the United

Nations (UN)—the replacement of the League of Nations—to ineffective-
ness. Bright hopes for major advances in international criminal law and the
law of human rights were soon dimmed. The new version of the World
Court had little business and even less impact on the conduct of states. Nor
were arbitrations between states much in evidence. The immediate postwar
decades, while vibrant ones in so many ways, were not, on the whole, a glori-
ous period for international law.
Retribution and Hope
The atmosphere of the early postwar period was one of frantic innovation,
with the UN as only one of many international organizations established to
bring order to the world. The International Labor Organization, which had
largely fallen into disuse, was relaunched. For assisting with world economic
matters, two bodies were established at a conference in Bretton Woods, New
Hampshire, in 1944: the International Monetary Fund (IMF) and the World
Bank (officially, the International Bank for Reconstruction and Develop-
ment). At a conference held in Havana in 1947, provision was made for an
International Trade Organization. At the UN, plans were put forward for in-
ternational control of the remarkable new technology known as atomic en-
ergy. International solidarity appeared to be in the very air. As one historian
put it, “[i]nternationalism was the thing to do, and everyone was doing it.”
These were especially exhilarating days for international lawyers of the
liberal persuasion. The dream of effective collective security was now resus-
citated, with the defective League of Nations to be replaced by (it was hoped)
the new and improved system of the UN. If nothing else, both of the major
world powers were (apparently) firmly committed to the idea. In addition,
one of the major concerns of nineteenth-century liberalism—the rights of
individuals—was now given a higher priority than ever before. This pro-
gram had both a negative and a positive face: negative in the form of the
criminal prosecution of those who committed atrocities, and positive in the
form of the establishment of legal safeguards for ordinary people. The real-
ization gradually set in, however, that progress in the real world would fall
dispiritingly short of ambition.
Building Anew 397
Putting Evil on Trial

As at the end of the First World War, there were scores to be settled. It
will be recalled that, after that earlier confl ict, it had been decided that
the planning of aggressive war was not a criminal offense in international
law. The state waging the war would be liable—but that meant civil liabil-
ity, leading to the payment of compensation by the state. International
law, it was concluded, had no provision for individual criminal liability
on the part of the political leaders. That was then. It was going to be dif-
ferent now.
Largely at the instigation of the American government—with Henry
Stimson, now serving as secretary of war, as the leading figure—it was de-
cided to mount a full-fledged judicial trial of the German (and later the
Japanese) leadership, in the full light of the global press and public. Support
for this initiative was far from unanimous. The Soviet government favored
swift summary punishment. The French lawyer André Gros, a professor of
international law at the Sorbonne (and future World Court judge), was an-
other voice in opposition. He pointedly reminded the Americans of their
own opposition to just such a proceeding at the conclusion of the First World
War.
Despite these objections, an International Military Tribunal, as it was of-
ficially entitled, was created by way of a treaty among the four powers oc-
cupying Germany (the United States, the Soviet Union, Britain, and France),
in August 1945. Three sets of charges were agreed. One was war crimes (i.e.,
violations of the laws of war, such as breaches of the Hague Rules). A second
category was labeled “crimes against humanity.” The expression had been
employed in 1915 by the Allied governments in denouncing Turkey for the
Armenian massacres. But Hersch Lauterpacht suggested employing it as a
technical term for a criminal offense. It referred basically to atrocities
against civilian populations. The third set of charges was given the label
“crimes against the peace,” a phrase coined by the Soviet law professor A. N.
Trainin. This meant, in essence, the planning of aggressive war prior to the
actual outbreak of it.
The chief prosecutor was American Supreme Court Justice Robert Jack-
son. He was not an international-law specialist, but some prominent inter-
national lawyers played subordinate parts in the drama. Kelsen, now based
in the United States, did some preparatory work for the trial by serving as
legal adviser to the United Nations War Crimes Commission in Washing-
ton. Quincy Wright served on the American prosecution team at the trials.
Lauterpacht (whose Polish relatives had been exterminated in the war) did
some preliminary work for the prosecution as a member of the British War
Crimes Executive in 1945– 46, and also attended the trials. Schwarzen-
berger declined to work for the trials, on the ground that a victim of Nazi
activities should not act as a judge (relatives of his had been killed during
the war).
Jackson’s principal interest was in the charge of crimes against the peace.
The legal basis of it was Germany’s egregious violations of the Pact of Paris—
even though the pact did not contain any statement of individual criminal
responsibility. In the unfolding of the proceedings, little attention was given
to crimes against humanity, which were treated in effect as an extension of
war crimes. In the final judgment in October 1946, nineteen of the twenty-
two defendants were convicted on one or more counts. (On crimes against
the peace, there were twelve convictions and four acquittals; on war crimes,
sixteen convictions and two acquittals; and on crimes against humanity, six-
teen convictions and two acquittals.) Twelve were sentenced to hang.
One of the defenses advanced was that there was no such thing as crimes
against the peace in international law. The tribunal ruled, however, that the
Pact of Paris had the effect of creating a criminal offense of planning aggres-
sive war, even if only implicitly. The pact therefore stands as a shining ex-
ample of a legal initiative producing a consequence that was utterly unfore-
seen by its drafters at the time of making. Even though it contained no
explicit provision on criminality, the pact was nonetheless held, in the some-
what vague wording of the judgment, to “involve” the proposition that “those
who plan and wage . . . a war” in violation of its provisions “are committing a
crime in so doing.” As a consequence, the planning of aggressive war is “not
merely illegal”—that is, is not merely a treaty violation by the state as such—
“but is [also] criminal,” entailing the punishment of responsible officials.
The tribunal even went on to pronounce aggressive war to be “the supreme
international crime.”
The tribunal went further yet, by holding that the personal criminal lia-
bility of the leaders was actually more fundamental than the civil liability of
the state whose governmental apparatus they controlled. In words that
Building Anew 399
could have come from the texts of Duguit or Kelsen or Scelle, the tribunal
pronounced that “[c]rimes against international law are committed by men,
not by abstract entities.” This part of the judgment naturally won Kelsen’s
hearty approval. Consistently with his theory that individuals are the true
subjects of international law, he asserted that imposing individual criminal
responsibility amounted to “a higher degree of justice” than “collective re-
sponsibility” imposed onto states. Wright expressed similar approval of
this thesis. The effective enforcement of international law, he contended, re-
quired the imposition of sanctions against individuals as well as states, even
though this “necessarily makes inroads onto national sovereignty.” He also
expressed his support for a larger implication of this principle: that it “tends
to change the foundation of the international community from a balance of
power among sovereign states to a universal federation directly controlling
individuals in all countries.”
An International Military Tribunal for the Far East was established in
1946, not by means of a multilateral treaty as in the German case, but by
proclamation of the American occupation authorities in Japan. Crimes
against humanity were not, in this case, among the charges. Instead, various
counts of murder were alleged, along with aggression and war crimes.
Twenty-eight persons were indicted in all. But there was one highly conspic-
uous absence from the dock: Emperor Hirohito. The American authorities
elected, as a policy choice, not to indict him, in the interest of maintaining
social harmony in Japan during the occupation period.
The proceedings in Tokyo differed from those in Nuremberg in a num-
ber of ways. For one thing, the bench was larger, comprising judges from
eleven Allied countries (as opposed to only four at Nuremberg). The offi-
cial judgment of the panel followed the Nuremberg Tribunal in citing the
Pact of Paris as the source of the crime of aggression, but there was a great
deal more dissension among the judges than there had been at Nurem-
berg. The French judge, Henri Bernard, regarded the procedural arrange-
ments of the trial as unfair to the defendants, with the result that he fa-
vored the acquittal of all of the accused parties. Also favoring acquittal
of all the defendants was the Indian judge, Radhabinod Pal. In a dissent-
ing opinion that ran for over six hundred closely printed pages, he dis-
puted the majority’s fi ndings on every possible point, including the crimi-
nality of aggressive war.
The majority of the bench, however, ruled all twenty-eight of the defen-
dants to be guilty of at least one charge. Seven were sentenced to hang. The
various sentences of imprisonment proved to be less severe than they ap-
peared when handed down. All of the surviving prisoners who received life
sentences were released on parole by the postoccupation Japanese govern-
ment in 1954–56. One of the convicted defendants—Shigemitsu Mamoru,
the former foreign minister—reentered politics and even served another
stint as foreign minister.
A New World Parliament

The League of Nations maintained a vestigial existence throughout the Sec-
ond World War, finally being officially wound up in 1946. By that time, it
had been supplanted by the UN, whose charter was approved in San Fran-
cisco in April 1945. This new organization was, in essence, a continuation
into peacetime of the wartime alliance (officially known as the “United Na-
tions”). A principal change from the League system was that collective secu-
rity was now placed onto a political rather than a legal basis. Instead of an
automatic duty of states to support one another in the face of aggression, as
provided in the League Covenant, decisions on collective action were to be
taken by a political body—the Security Council—on an ad hoc basis. The
Security Council, originally comprising nine states, had five permanent
members (the United States, the Soviet Union, Britain, France, and China)—
each with a veto power over substantive decisions.
One of the most important differences between the UN and the League
was that the UN Charter contained—as the League Covenant conspicu-
ously did not—a general prohibition against the use of force by states. The
resort to armed force was not merely confined within procedural barriers,
as in the League system, but was outright prohibited in principle, as in the
Pact of Paris. In one important respect, though, the UN Charter went even
beyond the pact: it prohibited “the threat or use of force” in general, and
not merely the resort to “war.” It has therefore been generally accepted
that forcible reprisals fall within the scope of the UN Charter’s prohibi-
tion (a point confi rmed by the World Court in 1996). The charter also
differed from the pact in making explicit allowance for armed force in
self-defense.
Building Anew 401
Certain features of the League were reproduced in the UN, though of-
ten in somewhat altered form. One example was the requirement for regis-
tration of treaties. Under the League Covenant, unregistered treaties had
been stated to be not legally binding. The UN Charter was less draconian.
An unregistered treaty would still be legally binding, but the parties to it
were barred from invoking it before any UN organ (such as the World
Court).
Finally, it may be noted that a new World Court was established, known
formally as the International Court of Justice (I.C.J.). This new Court was vir-
tually identical in its arrangement and operations to the now-defunct
P.C.I.J.—to the point that the single expression “World Court” can safely be
used to refer to both of them as if they were a single continuing entity. The
transition between them was as smooth as possible. In January 1946, all of the
judges of the P.C.I.J. resigned. Most were then swiftly elected onto the new
Court. But several new judges were needed, due to retirements (for example, of
Anzilotti and Bustamante). There were some notable figures among these, in-
cluding Álvarez from Chile and McNair from Britain. Serge Krylov, from the
Soviet Union, brought a socialist presence onto the bench for the first time.
Some new ground was broken in the area of codification of international
law. One of the tasks explicitly assigned by the UN Charter to the UN Gen-
eral Assembly (a body comprising all of the member states of the organiza-
tion) was to encourage “the progressive development of international law
and its codification.” To this end, the General Assembly duly established a
body called the International Law Commission (I.L.C.) in 1947. Its members
were not states, but individual experts in the field of international law, elected
by the General Assembly. Among the early members were a number of
prominent figures, including Scelle, Brierly, Lauterpacht, and Hudson. (Ver-
dross served on it later, as did Krylov.) It has held one session a year since its
establishment, functioning as a sort of combination of a “think tank” and a
legislative drafting body. It operates far below the level of general public
attention—and is perhaps all the more effective for that.
From Hope to Paralysis

The establishment of the UN in 1945 was not accompanied by anything like
the euphoria that had greeted the founding of the League of Nations after
the First World War. The painful memories of the League’s failures saw to
that. Still, there were hopes that the UN might take effective steps to cement
the gains that had been made, and to ensure that the tragedies of the past
would not be repeated. In no areas were these hopes more earnest than in
human-rights law and international criminal law. Activity in both of these
areas was soon under way.
The initial fruits were two initiatives that were brought before the UN
General Assembly on successive days in December 1948. The first was an
international convention that created a new international crime: genocide.
The word “genocide” (meaning the killing of a people) was a new coinage of
the 1940s, by a Polish lawyer named Raphael Lemkin. State that became
parties to this convention pledged themselves to “prevent and punish” this
new kind of horror.
The following day came the assembly’s adoption of the Universal Declara-
tion of Human Rights. Its drafters included Eleanor Roosevelt, a member
of the American delegation to the UN; the French lawyer (and future Nobel
Peace Prize winner) René Cassin, who had been a wartime legal adviser to
Charles de Gaulle; and the Canadian lawyer John P. Humphrey, who took
the lead part in the draft ing. The declaration contained a list of fundamental
civil and political liberties, such as liberty of expression, of association, of
religion, and so forth. It was not a treaty as the Genocide Convention was,
but merely a resolution of the UN General Assembly. That meant, crucially,
that the declaration was not legally binding. It was merely an agreed state-
ment of worthy aspirations.
At this same time, work was getting under way in the I.L.C. to create a
permanently existing international criminal tribunal, comparable to those
of Nuremberg and Tokyo, to deal with future international miscreants. The
most immediate task, the commission decided, was the drafting of a written
international criminal code for the tribunal to apply. By 1954, it had pro-
duced a draft, containing twelve crimes, including war crimes and various
aggression-related acts, plus genocide and crimes against humanity.
Two other early postwar human-rights initiatives may be briefly noted. In
1949, a thoroughgoing updating of the Geneva Conventions was completed.
Under the auspices of the International Committee of the Red Cross, a set of
four new Geneva Conventions was concluded in 1949. Three of these were
updates, with only modest revision, of prewar provisions—on the protec-
Building Anew 403
tion of wounded and sick soldiers in land and maritime warfare and of pris-
oners of war. The fourth convention, however, was an innovation. It was
devoted to the protection of civilian victims of war, chiefly to civilian popu-
lations of occupied territories (effectively replacing and expanding the
Hague Rules on that subject).
Action in favor of refugees followed shortly after this. In 1951, under UN
auspices, a Convention on the Status of Refugees was concluded, which re-
mains one of the foremost legal initiatives in the human-rights sphere. It
provided a legal definition of refugee—basically, a person who is in a foreign
country, and who has a “well-founded fear of persecution” by his home coun-
try. What the convention pointedly did not grant was an actual right of refu-
gees to admission to any country. It merely provided for their humane treat-
ment (including nonreturn to the home country) once they were actually in
a foreign state.
In large part, the hopes of the early postwar period went unfulfilled. Con-
sider, for example, the fate of the plan to establish an international criminal
court. Although, as noted, a draft code of crimes was adopted by the I.L.C.
in 1954, the project lost momentum, largely because of the difficulty of
crafting a legal definition of the crime of aggression. That same year, the UN
General Assembly decided to discontinue further work in the area until that
gap was filled. That did not occur until 1974—and even then, the crimi-
nal court project continued to languish.
There was also a worrying absence of urgency on the human-rights front.
Some human-rights activists had been disappointed at the legally second-
rate—that is, nonbinding—status of the Universal Declaration. Lauterpacht
was one of them. He expressed a fear that a nonbinding declaration “would
probably constitute a retrogressive event.” Human rights, in his opinion, ur-
gently needed to be fi rmly placed on “the plane of positive law,” where it
could be backed by effective legal sanctions. Work shortly began on the
drafting of a legally binding treaty on human rights, but it proved to be an
agonizingly slow process, not completed until 1966.
There were worrying indications, too, of a lack of commitment to human
rights on the part of the major powers. It was not surprising that the Soviet
government, with its Stalinist heritage, was less than energetic in either the
promotion or the protection of human rights—even as it ardently champi-
oned the rights of states. More surprising was the loss of interest in the
United States, as objections began to surface over the country’s adherence to

human-rights treaties. The American Bar Association opposed ratification
of the Genocide Convention because of the possibility that Americans could
be subjected to trials by a foreign court. Conservative political groups were
worried that American adherence to international human-rights treaties
would pave the way for foreign interventions of various kinds into domestic
affairs. In the face of this mounting opposition to international human-
rights action, Secretary of State John Foster Dulles, in 1953, gave explicit
assurance to the U.S. Congress that his government would not seek the rati-
fication of human-rights treaties. The American policy, Dulles stated, was to
promote human rights by “methods of persuasion, education, and example
rather than [by] formal undertakings.”
International Law in a Cold War Climate
It was the Cold War, more than any other development, that ensured that
the heady atmosphere of postwar optimism would be dispiritingly short in
duration. One of the most conspicuous signs of the new atmosphere was the
paralysis of the UN Security Council, where the five permanent member
states all had a veto power. Liberal exercise of that prerogative by the Soviet
Union reduced the body largely to impotence. The one outstanding excep-
tion was the crisis in Korea in 1950, when the Security Council mobilized
world support for South Korea against invasion from North Korea—though
it was able to do so only because the Soviet government happened to be boy-
cotting the council’s sessions at the time (as a protest over the failure of the
UN to grant China’s seat at the UN to the newly installed Communist gov-
ernment of mainland China). The frequent use of the veto by the Soviet
Union was widely resented by UN members (who, at this time, were heavily
Western in orientation). In 1949, the General Assembly appealed to the ma-
jor powers to refrain from “excessive use of the veto.” But this pious exhor-
tation had no practical effect.
Within the international legal profession, the Cold War was much less in
evidence than it was in the daily headlines. In large part, this was because
socialist international lawyers did not advance a distinct version of interna-
tional law, but were essentially orthodox mainstream positivists. There
Building Anew 405
were, however, some signs of ill temper even in these staid circles. In 1951,
Korovin ostentatiously resigned from the American Society of International
Law, accusing it of turning the American Journal of International Law into
“a vehicle of slanderous misrepresentation” of the Soviet Union and “an in-
strument for kindling hostility between states and nations.” Academic
journals have seldom been supposed to have so great an impact.
The World Court and the Cold War

Attempting to resolve fundamental political disputes through the courts is a
hazardous business at best. But persons devoted to the rule of law are con-
stantly minded to attempt it. There were a number of instances of this dur-
ing the Cold War, especially in the early years. The effect, however, was to
demonstrate more the weakness of the World Court than its strength, in the
face of deep-seated political rivalry.
The clearest demonstration of this was the attempt to enlist the Court’s
aid in resolving a long-running dispute about the admission of would-be
new member states to the UN. Western governments were reluctant to
admit Eastern European states into the orga nization on the ground that
they were mere puppet states of the Soviet Union. As such, their only role
would be to increase the voting power of the Soviet Union in the General
Assembly. The Soviet Union struck back by opposing the entry of Western-
oriented countries such as Japan. As the years passed, the number of states
“stacking up” for membership grew ever higher. An obvious compromise
solution was a “package deal,” whereby all of the waiting states would be
brought in, with the effect of keeping the overall balance more or less con-
stant. Both the American and the socialist-state governments supported
this.
In 1947, the General Assembly voted to seek an advisory opinion from the
World Court on the question of criteria for admission. In a controversial
decision the following year, the Court held that it is not legally permissible
for member states to add political criteria to the legal ones stated in the
charter. That meant, in effect, that states had a legal right to be admitted to
the organization. The Court also expressly stated that a package deal, of the
kind envisaged, would not be lawful. Far from solving the problem, the
Court’s opinion may actually have made it worse because governments that
resisted the package deal proposal could now claim to have international
law firmly on their side.
Imaginative suggestions for breaking the logjam were not lacking. The
government of Argentina proposed that admission of an applicant state
could be effectuated by the General Assembly alone, even if the application
had been vetoed in the Security Council—that is, it would suffice that the
question of admission had merely been submitted to the Security Council
and decided upon by it, even if negatively. Another proposal, put forward by
the Peruvian government, was to regard questions of admission of new
members as procedural, rather than substantive, issues—with the result that
the veto power would not apply. The World Court, however, in another advi-
sory opinion, ruled these proposals out. The UN Charter, it pronounced,
requires an affirmative vote by both bodies for admission. The impasse was
eventually broken when, notwithstanding the Court’s stricture, the package
deal solution was adopted in 1955. Exhaustion had won out over principle,
and the UN experienced a great upward jump in its membership. The crisis
was resolved, but largely by setting the legal considerations quietly aside.
Another attempt to enlist the aid of the World Court in Cold War dis-
putes, this time over three of the post–World War II peace treaties, was, if
anything, even more anticlimactic. The Western governments accused three
socialist countries (Romania, Bulgaria, and Hungary) of breaching provi-
sions of their respective peace treaties that required respect for human
rights. The treaties contained dispute-settlement mechanisms in the form
of the establishment of arbitral panels, to which the parties to a dispute
would name representatives. The three governments sought to derail the
process by refusing to appoint representatives—thereby preventing the for-
mation of the panels. The Western governments then proposed that the
secretary-general of the UN make the appointments in their place. When
the three governments objected, the General Assembly requested an advi-
sory opinion from the World Court as to whether it would be lawful to pro-
ceed with that alternative mechanism.
The Court’s response, handed down in an advisory opinion in 1950, was
negative. It held that the treaties set out the only obligatory means of dis-
pute settlement. If that sole procedure cannot be carried out—even if the
cause is a deliberate refusal of countries to cooperate—then an alternative
mechanism cannot be substituted. The General Assembly (which had a
Building Anew 407
Western majority) reacted sourly to this development. But there was little
that it could do, beyond condemning the three states for their “willful re-
fusal” to cooperate and denouncing them for being “callously indifferent to
the sentiments of the world community.” 
On other occasions, proposals to involve the World Court in Cold War
questions failed to receive support. One of these was an attempt by the Cu-
ban government, supported by the socialist countries, to overturn that
country’s exclusion from the Organization of American States (OAS), which
occurred in 1962. The Cuban government contended that the exclusion
amounted to “enforcement action” against it—and that this was illegal, since
the taking of enforcement action is reserved, by the UN Charter, to the UN
Security Council. In March 1962, a Cuban proposal that the Security
Council seek an advisory opinion from the Court on the question was de-
feated in the council in a vote on more or less straight Cold War lines.
New Legal Doctrines for the Cold War Era

In certain respects, the Cold War elicited a degree of legal creativity on the
doctrinal front. From both sides of the Iron Curtain came proposed modifi-
cations of traditional international-law doctrines, most notably regarding
the use of force. The socialist side produced the Brezhnev Doctrine, enunci-
ated in 1968. From the United States, in the 1980s, came the Reagan Doc-
trine. These two doctrines bore an interesting resemblance to one another
in that both of them proposed important limitations on state sovereignty,
along with justifications for armed intervention.
The Brezhnev Doctrine (named for Soviet General Secretary Leonid
Brezhnev) was enunciated in an article in Pravda in 1968, written by a law-
yer named Sergei Kovalev (who is not to be confused with a prominent later
dissident of that same name). This was in the immediate wake of the Soviet
Union’s armed intervention in Czechoslovak ia to keep that country firmly
within the Soviet sphere of influence. The intellectual roots of the doctrine
were laid earlier, however, in a post-1945 revival of Korovin’s ideas, dating
from the interwar period, of a distinctive socialist international law, exist-
ing (somehow) alongside the traditional international law of the capitalist
states. The idea had fallen into disfavor in the 1930s. But the atmosphere
was now much more auspicious, since there were several socialist countries
in the world, in place of the single isolated one of the past. This meant that
the way was now open for holding that relations between the socialist states
inter se were governed by a new and distinctive kind of international law.
One of those advancing this “new” line of thought was Korovin himself—
who should merit the sobriquet of “the Great Survivor” of socialist law. He
brought his turbulent career to a comfortable end as professor of interna-
tional law at Moscow University in the late 1950s and early 1960s.
The principal champion of this revived and updated version of a distinc-
tively socialist international law was Grigory Tunkin. He held professorships
of international law, first at the Institute of State and Law and then at the
University of Moscow. Like Martens, he combined this academic work with
the post of legal adviser to the Soviet foreign ministry. The basic idea was that
relations between the socialist states were fundamentally different in charac-
ter from those between socialist and capitalist countries. The law governing
relations within the socialist world was characterized in clearly solidarist
terms. (For relations with the capitalist states, as will be seen, a firmly posi-
tivist philosophy prevailed.) The Brezhnev Doctrine supported, and exempli-
fied, this thesis—with important support from Tunkin.
Kovalev’s 1968 Pravda article forthrightly rejected “small-nation narrow-
mindedness, seclusion and isolation” and insisted instead on the need to
“subordinate the particular to the general interest.” Similarly in the solidar-
ist spirit was the assertion that “each Communist party is responsible not
only to its own people, but also to all the socialist countries, to the entire
Communist movement.” There was a warning that “[t]he weakening of any
links in the world system of socialism directly affects all the socialist coun-
tries,” coupled with an insistence that “[f]ormally juridical reasoning” must
not be allowed to obscure the social realities of class conflict.
One feature of solidarist thought that was especially evident in the Brezhnev
Doctrine was a discarding of absolutist theories of sovereignty and their re-
placement with a tolerance for intervention in the overall interest of a larger
community. The Pravda statement asserted, in this spirit, the existence of a
new kind of right of self-defense—not of individual, isolated nation-states,
but rather of the over-all “social system” of socialism. When that system was
threatened in any state where it was established, then “abstractly understood
sovereignty” could not be permitted to stand in the way of forceful action. The
Soviet military intervention was therefore justified as a discharging of the So-
Building Anew 409
viet Union’s “internationalist duty” to the people of Czechoslovakia, in the

interest of safeguarding that people’s “own socialist gains.” Kovalev contrasted
counterfeit self-determination (as it might be described) with true “socialist
self-determination.” What was envisaged was a sort of mutual-guarantee idea,
in which it was seen as the duty of each state within the socialist bloc to ensure
that each of its fellow members was able effectively to exercise its sovereign
right to institute socialist principles within its society. If necessary—as it was
now claimed to be—that mutual guarantee could involve armed action.
The Reagan Doctrine in the United States also provided a justification for
armed intervention. In fact, it was candidly described by Reagan’s Secretary
of State George P. Shultz as the “opposite number” to the Brezhnev Doc-
trine. There were some differences, though. Where the Brezhnev Doctrine
authorized force against like-minded states, the Reagan Doctrine concerned
armed action against countries of differing persuasions. It was, in essence, a
neo-just-war doctrine, asserting what its supporters characterized as “the
moral legitimacy of U.S. support—including military support—for insur-
gencies under certain circumstances.” Those circumstances were two: first,
that the country concerned was being ruled, in undemocratic fashion, with
material support from the socialist bloc; and, second, that an indigenous in-
surgency was in existence struggling against that government. When those
two conditions were fulfilled, the United States was stated to be justified in
aiding the insurgent movement. Such assistance was characterized as coun-
terintervention, in response to the socialist support for the government in
question. This was distinctly reminiscent of John Stuart Mill’s exception to
the otherwise strict principle of nonintervention in the nineteenth cen-
tury. In all events, supporters of the Reagan Doctrine frankly rejected the
principle of “inviolability of sovereignty.”
On the whole, it may be said that the Reagan Doctrine was more radical
than its Soviet counterpart from the standpoint of international law. This
was because the Brezhnev Doctrine was conservative in its effects—that is,
having the effect of bolstering established governments against dissidents—
whereas the Reagan Doctrine justified support for insurgent groups seeking
to overthrow incumbent governments.
Like its Soviet counterpart, the Reagan Doctrine was no merely theoretical
matter. It was put to use in justifying support for an insurgency in Nicaragua
against a socialist-leaning government. The American assistance to these
insurgents, known as the “contras,” took the form of training (in camps lo-
cated in Honduras), plus the supply of weapons and intelligence. There were
also incidents of direct uses of force, in the form of the mining of Nicara-
guan harbors, along with an economic boycott effort. In this case, the gov-
ernment of Nicaragua reacted by bringing a series of claims against the
United States in the World Court, thereby opening the way for a judicial
pronouncement on the Reagan Doctrine.
In its judgment, handed down in 1986, the Court did not make express
reference to the Reagan Doctrine as such. But without naming it, the Court
held it to “involve a fundamental modification of the customary-law princi-
ple of nonintervention.” But it also held that the doctrine was not, in real-
ity, an attempt to propound a new principle of law. The various justifications
the United States sometimes gave for interventions on ideological grounds
had been, in the Court’s words, “statements of international policy, and not
an assertion of rules of existing international law.” It then pronounced, for
the record, that there is, in fact, no rule of international law allowing inter-
vention on the grounds put forward by the Reagan Doctrine. The Brezhnev
Doctrine was not fortunate (or unfortunate) enough to be subjected to a
similar judicial test.
Biding Time
The immediate post-1945 decades may have been full of commotion and
drama in a number of ways, but the world of international law was an eerily
quiet one in many respects. For one thing, the World Court was largely in-
active in this period. Time and again, the Court found itself, for one reason
or another, unable to resolve disputes. Generally, this was because of bona
fide legal technicalities. In addition, governments took greater advantage
than they had in the interwar period to place far-reaching reservations in
declarations made under the Optional Clause. As a result, the prospect of
general acceptance by states of the compulsory jurisdiction of the World
Court appeared further away than ever.
Even when the Court did make pronouncements, they often had little ef-
fect. That was the case, as noted, in the controversy about UN admissions.
In addition, a judgment rendered against Albania in 1949, arising out of
damage to British vessels caused by mines in the Corfu Channel, went stub-
Building Anew 411
bornly unpaid. An advisory opinion in 1950, holding South Africa’s League

of Nations mandate over South-West Africa (present-day Namibia) to be still
in force, similarly had no practical effect. An advisory opinion in 1962, on
the validity of assessments of UN expenses, failed to induce countries that
had been withholding assessed contributions to pay them. In 1971, the Brit-
ish government announced that it was “rejecting” an advisory opinion given
by the Court on the question of Namibia. Specifically, the British govern-
ment pronounced the Court to have been wrong on two counts: first, in
holding that the UN General Assembly had validly terminated the Republic
of South Africa’s mandate over the area; and, second, in ruling that the Se-
curity Council had the power to issue mandatory orders to states on non-
security-related matters.
It is hardly surprising, then, to fi nd that, by the mid-1970s, the Court was
flatly being pronounced a failure by prominent observers. On other judi-
cial fronts as well, there were embarrassing silences. Mixed-claims commis-
sions and arbitrations, for example, were very little in evidence. There was
nothing like the rich array of international litigation that there had been in
the interwar era.
At the same time, modest changes were achieved, even if they fell well
short of initial hopes. The economic field provides an illustration. The pro-
posed International Trade Organization failed to come into existence, largely
because political pressures within the United States prevented that country
from ratifying its charter. A portion of the project was salvaged, though, in
the form of the General Agreement on Tariffs and Trade (GATT), which had
been concluded in 1947 as a sort of advance installment on the ITO. So the
GATT simply continued in existence on its own. It fi xed basic norms on
trade, oriented toward reducing (or eliminating) quota systems, subsidizing
of goods, and other forms of unfair or manipulative trade practices. In addi-
tion, several rounds of tariff reductions were successfully negotiated, with
the result that trade volume increased steadily in the postwar era.
In the human-rights field, too, there was some movement. The interna-
tional convention was finally completed in 1966—although by then it had
become two companion treaties. One was an International Covenant on
Civil and Political Rights, with the other on Economic, Social, and Cultural
Rights. Even so, it was a further ten years before these conventions at-
tracted enough ratifications to enter into force. The Covenant on Civil and
Political Rights did, however, contain two features that would make a major
impact in the longer term. One was the establishment of a permanent moni-
toring body (called, somewhat blandly, the Human Rights Committee) to
oversee compliance by the states. It was composed of individuals sitting in
their personal capacities (in the manner of World Court judges). Most inter-
estingly, an Optional Protocol was appended to the Civil and Political Cov-
enant, in which states allowed individuals to bring claims against them for
violation of the covenant before the Human Rights Committee.
There even began to be some lessening of Cold War tensions, following the
death of Stalin in 1953. From the socialist camp there emerged a new doctrine
of peaceful coexistence between the two blocs of states—a program of formal
correctness between them, if not exactly of passionate love. This was formally
unveiled in 1956 at a conference of the International Law Association—the
first gathering of that body to be attended by lawyers from the socialist
bloc. It eventually led to a consensus resolution of the UN General Assem-
bly in 1970, known as the Declaration on Friendly Relations, setting out the
fundamental principles of post-1945 international law. These included the
sovereign equality of states, the prohibition against the use of force, the
principle of nonintervention, the duty of peaceful settlement of disputes,
and the right of self-determination of peoples. The importance of this decla-
ration has been indicated by its invocation by the World Court in several
judgments.
Various achievements were possible in technical areas where there was
relatively little political clamor. In 1959, for example, the Antarctic Treaty
was concluded, leading to the suspension of all territorial claims to the
southern continent. It also provided for the complete demilitarization of
Antarctica, reserving the area for scientific purposes. In 1967, a multilateral
convention regulating outer space activities was completed—although it
stopped short of full demilitarization. In 1979, a treaty was concluded
specifically relating to the moon, reserving that silvery orb “exclusively for
peaceful purposes.” There was also a treaty, concluded in 1968, for the res-
cue of astronauts.
The International Law Commission

The most fruitful—if also least visible—achievements in international law
during this period came from the steady and patient work of the Interna-
Building Anew 413
tional Law Commission. Its task was the codification of international law—
not, however, in the grand sense of producing a single systematic code of the
whole of international law in the manner of Bluntschli or Fiore in the previ-
ous century, but rather in the more modest sense of codifying selected topic
areas within the field. For guidance on what topics to cover, the UN secre-
tariat sought the advice of Lauterpacht. In 1949, he drew up a provisional list
of subjects for the commission.
It has been noted that the plan to establish an international criminal
court did not produce the anticipated effect. Other initiatives, however,
fared better. Foremost among them was the draft ing of a set of articles on
the law of the sea in 1956, with a recommendation that states convene an
international conference to consider them. The resulting conference, held
in 1958, used the articles as the basis of four conventions on key aspects of
the law of the sea: on territorial waters, high seas, fisheries, and continental
shelves. These were then widely ratified by states. Th is codification was
not, however, comprehensive. The most outstanding matter left unsettled
was the width of territorial waters. A follow-up conference of states was held
in 1960 to resolve this point, but agreement continued to prove elusive.
A second major area of achievement was diplomatic law. In this case, too,
the commission produced a set of articles (in 1958). These were then used
by governments as the basis for the Vienna Convention on Diplomatic Rela-
tions of 1961. One of the most important contributions of this agreement
was the fi xing of uniform general rules among states on the delicate subject
of diplomatic immunities. The agreed policy was, basically, to grant absolute
immunity to persons with diplomatic ranking, but more restricted immuni-
ties to ancillary persons such as support staff and family members.
The third major achievement of the International Law Commission in
this period was to produce a set of articles on the law of treaties in 1966.
With these as guidance, a conference of states concluded the Vienna Con-
vention on the Law of Treaties three years later. Many issues regarding
treaties were clarified, but just one may be mentioned briefly: reservations to
multilateral treaties. The practice had previously been that a state could en-
ter a reservation only if all of the other parties to the treaty consented to it.
An advisory opinion of the World Court in 1951 had made an exception to
this in the case of treaties for which universal adherence was being sought.
The Vienna Convention built on that decision and allowed reservations to
be freely made, subject to one key condition: that they are not incompatible
with the general “object and purpose” of the treaty.
Sometimes, the commission produced authoritative statements of exist-
ing law, without envisaging their being incorporated into treaties. A set of
such articles was produced by the I.L.C. on the subject of most-favored-
nation clauses in treaties in 1978, with a second part still in progress as of
2013. In addition, a set of articles was agreed in 1999 regarding state suc-
cession and nationality. Another noteworthy set of articles, completed in
2006, dealt with rules and principles governing the diplomatic protection of
nationals abroad. This was largely the work of the South African and
Dutch lawyer John Dugard.
Most useful of all was a set of articles concluded in 2001 (after some thirty
years of continuous effort) on the subject of state responsibility. The initial
work was largely by the Italian lawyer Roberto Ago, of the University of
Rome (and later the World Court), with the Australian lawyer James Craw-
ford, professor of law at Cambridge, as the leading figure in the final stages
of the drafting. State responsibility is the ultimate in “lawyers’ law” in the
international sphere. It comprises the rules and principles that govern deter-
minations of liability in general in international law—the prerequisites
for liability, special defenses to be recognized, and legal consequences of
breaches of law, including remedies available to victim states. This some-
what arid field of law generated no headlines around the world. But, once
the drafting was complete, it became an indispensable operating manual for
practicing international lawyers the world over.
Contending Schools
The participants in the 1947 session of the Hague Academy of International

Law were treated to a rare privilege. They were able to see three prominent
international lawyers expounding three distinct schools of thought. Cham-
pioning the cause of liberalism was Lauterpacht. His topic was the develop-
ing international law of human rights. For the cause of mainstream positiv-
ism, there was Serge Krylov, the Soviet judge on the World Court. Presenting
the solidarist perspective was a Belgian lawyer named Maurice Bourquin,
who taught at the Graduate Institute of International Studies in Geneva. His
Building Anew 415
specific topic was “Scientific Power and International Law.” As an added

bonus, Henri Donnedieu de Vabres, the French judge at the Nuremberg Tri-
als, lectured on the new developments in international criminal law.
Speaking generally, it must be said that international legal writing in the
post-1945 era did not equal that of the more intellectually heroic ages of the
nineteenth century or of the interwar period. It principally continued along
lines already marked out. To some extent, this was because the same persons
continued to be active as in the prewar period. There was not a transition
between generations of lawyers after 1945 to the extent that there had been
after the First World War. Lauterpacht, for example, had been active before
the war, but he became increasingly prominent afterward as a champion of
liberalism—and a leading figure in the profession generally. Manley Hudson
also continued on the scene, serving on the I.L.C. Kelsen was still productive
after the war, as were Kunz, Verdross, Scelle, Schwarzenberger, and Wright.
De Visscher served on the World Court in 1946–52, as did Wellington Koo
in 1957–67, and Verdross as a judge on the European Court of Human Rights.
There were even two men who had begun their careers prior to 1914 and
continued to be active after 1945. One was Álvarez, who was elevated to the
World Court after the war. The other was Erich Kaufmann. He returned to
Germany after his exile in the Nazi period and became a legal adviser to the
West German foreign ministry and also to the chancellor’s office, principally
advising on legal aspects of the occupation and partition of Germany. He was
now a widely revered elder statesman of the profession. From his early days
as a neo-Hegelian, he had made the longest intellectual odyssey of all.
The Continuing Hold of Positivism

Positivism was far from dead in the post-1945 world. In fact, it could even be
said to have gained renewed strength from the Cold War atmosphere, forti-
fied by the strong support of lawyers from the socialist countries. Starting in
force in the 1960s, lawyers from newly independent countries also tended to
swell the positivist ranks.
Within positivism, some of the fault lines of the past remained evident.
The common-will variant had largely faded as a separate school of thought,
but the empirical and the voluntarist approaches were still alive. The empiri-
cal perspective was little changed from the nineteenth century. In the words
of Roberto Ago, its hallmark is “a scientifically objective examination of

empirical reality.” The primary focus remained, now as then, on custom-
ary law. Ian Brownlie, a professor at Oxford and experienced practitioner
before international tribunals, frankly pronounced customary law to be “for
all practical purposes identical” to general international law. Also evident
was the empiricist’s bluff disdain for theory, which, in Brownlie’s opinion,
“provides no real benefits and frequently obscures the more interesting
questions.” To discern what the law is, he maintained, the surest guide is
an “examination of the vast array of evidence” of state practice.
Perhaps the most forthright spokesman for the empirical viewpoint was
Schwarzenberger, in a 1965 book entitled (fittingly enough) The Inductive
Approach to International Law. In it, he expressed the strong hostility of the
empiricist to rationalistic, à priori methods in international law, insisting
instead that international law must be regarded as “an empirical device” and
not as “an exercise in logic.” Hypothetico-deductive approaches to inter-
national law were dismissed as “a beautiful spiral in the air, coming from
nowhere and disappearing in the clouds.” For “[s]peculation, intuition and
other brainwaves,” he had only scorn.
State practice, contended Schwarzenberger, is the sole source of legal
rules. International law, in his view, comprises “the sum total of the rules
actually considered law by the subjects of international law.” He forth-
rightly rejected any attempt to propound broad principles “abstracted from
such rules.” Such searches for general principles underlying specific rules
amount to lawmaking by courts and commentators, to which he was reso-
lutely opposed. He bluntly denounced the use of “legal conceptualism (Beg-
riffsjurisprudenz)” as a basis for “surreptitious law-making.” Deduction
from principles was acceptable, in his opinion, only as a teaching device or
as a classification tool. He compared principles to labels on bottles in a
chemist’s shop, insisting on a sharp distinction between the labels on the
bottles and the contents (i.e., the actual rules of law). Supposed principles
are in fact merely convenient labels, he argued, not themselves legally bind-
ing. Consequently, they must not be employed as devices for the creation of
new rules of law in the absence of actual consent by states. The urgent need
in international legal scholarship, Schwarzenberger held, is for systematic
study of state practice, with the goal of obtaining a substantial body of solid
evidence as to what rules have actually been accepted by states, as evidenced
by their practice.
Building Anew 417
The voluntarist version of positivism was similarly in rude health after

1945, although the expression was now used rather loosely—basically to mean
the thesis that international law is based entirely on the freely given consent of
the states of the world. It remained the case, as it had in the nineteenth cen-
tury, that the two versions of positivism were allies more than foes, since both
of them agreed on the fundamental importance of state consent as the basis of
international law. They differed chiefly in how best to determine the presence
of that consent—whether in observation of state practice (the empiricists) or
in a firmer insistence on evidence of actual expressions of state will (the
voluntarists).
The ethos of the voluntarist version of positivism was instructively evi-
dent in the writing of the Italian writer Gaetano Arangio-Ruiz. He taught
international law at the Universities of Padua, Bologna, and Rome, as well as
serving on the International Law Commission. In the spirit of the
nineteenth-century voluntarists, he insisted on the state as “a ‘given’ person,
a real entity,” rejecting contentions that a state is merely “a secondary, artifi-
cial, person.” The state, in his opinion, is the primary unit and subject of
international law. His picture of the international community could have
come straight from Hobbes. The states of the world were asserted to be “the
private parties of the international system” existing in “a natural society.”
They operate in a situation in which there are no underlying general rules
“stemming from the whole society of men.” Arangio-Ruiz therefore rejected
the idea of “an underlying collective entity or community” underpinning in-
ternational law. International law is essentially contractual in character,
without any “continuous normative texture corresponding to [a supposed]
public law of mankind.” In par ticular, customary law is contractual, and
not legislative, in nature. Like the nineteenth-century positivists, he insisted
that “the raison d’être of international law” is the resolution of disputes be-
tween states, not the forging of a global great society. He endorsed the
dualist position of a strict separation of national from international law and
explicitly rejected the idea of a dédoublement fonctionnel in international
law. He believed that states were currently “more attached to voluntarism
than they have ever been in the past.” Nor did he believe that developments
since World War II had made any fundamental change in the nature of in-
ternational law.
Another outspoken champion of the voluntarist (or contractual) school
was the French lawyer Prosper Weil, who forthrightly pronounced himself
in favor of “a consensualist or voluntarist approach to international law.”

As such, he was a staunch opponent of a drift toward majority rule in inter-
national law, which he denounced as a “pathological phenomenon.” He
insisted that the function of international law remained—as it always had
been—“to ensure the co-existence . . . and the cooperation of basically dis-
parate entities composing a fundamentally pluralistic society.” The com-
munity of states was described by him as “a society of juxtaposition,” with
the right of states to take different paths from one another being a funda-
mental feature of state sovereignty. “[T]here can be no question,” Weil
averred, “of some ‘international democracy’ in which a majority or repre-
sentative proportion of states is considered to speak in the name of all.”
Opposed to this is the legislative theory of custom, which had the strong
support of Kelsen. Another supporter was the French writer Michel Virally,
who taught at the Graduate Institute of International Studies in Geneva and
later at the University of Paris. Customary law, Virally contended, is gov-
erned by a principle that he labeled as “opinio juris communis”—meaning
communal legal opinion, or the general consensus of states. He described
customary law as “the translation in terms of law of the spontaneous activ-
ity of the social body.” What is looked for, therefore, is the presence or ab-
sence (as the case may be) of a general or collective consensus on the part of
states as to the existence of a law, and not the consent of each state individu-
ally. Whether such a general consensus is present or absent is a question of
fact, to be ascertained by careful observation of state practice, which Virally
asserted to be “the central element” of customary law.
What is at stake in this conundrum may be stated simply. According to
the legislative view, the majority of the states binds the minority, in the way
that laws adopted by a majority of a legislature are binding even on those
who oppose them. On a contractual view, in contrast, customary laws bind
only those states that actually participate in or consent to the rule, leaving
the dissenters free to go their own way. Voluntarist lawyers are, effectively
by definition, committed to the contractual thesis. Empirical lawyers could
go either way without undue difficulty.
This interesting—and fundamental—question as to the nature of custom-
ary law remains unresolved. This is partly because at least some of the em-
pirical positivists have given their support to a major caveat to the legislative
position. This involves accepting the majority rule thesis in principle—but
Building Anew 419
subject to the very important proviso that any state that actually voices an
objection to a customary rule as it is forming is thereby exempted from ap-
plication of the law. This opportunity to opt out of rules of customary law
came to be labeled, reasonably enough, as the “persistent-objector” principle
(although perhaps “express-objector” principle would be a better term).
The status of this persistent-objector principle remains unclear. Some law-
yers have maintained, very matter-of-factly, that it is part of international
law. Brownlie speculated that the principle would become increasingly im-
portant in the future, as a counterweight against an increasing “majoritarian
tendency” in international law. Firm judicial evidence in its favor is, how-
ever, sparse and ambiguous at best. Some support for it was evident in two
World Court judgments in the early 1950s. But a clear judicial endorsement
of the persistent-objector theory remains elusive. For present purposes, it is
only necessary to note its practical effect: that it goes far toward bridging the
gap between those who support majority rule in the making of customary law
and those (i.e., the voluntarists) who oppose it.
The broad contours of the postwar positivist debate over customary law
within the positivist camp may be summed up rapidly. There were three
groups. One of them, including writers like Kelsen and Virally, held to a
pure legislative view of customary law, without allowance for a persistent-
objector caveat. A second group, including Brownlie, accepted majority rule
in customary law in principle, but only subject to allowing opting out by
persistent objectors. The third group—now usually known as “voluntarists”—
comprising writers such as Arangio-Ruiz and Weil, held to the contractual
theory, asserting that even customary rules are binding on states only with
their actual consent, and hence that customary law is, at root, merely tacit
treaty making. In practice, the great majority of positivist lawyers were in
the second or third of these groups.
The Socialists
It was only after 1945, when the Soviet Union emerged as an active partici-
pant in global politics and lawmaking, that socialist perspectives on the
subject came to the attention of a wider audience. The seminal event was the
election of Krylov to the World Court. He was a professor first at the Univer-
sity of Leningrad and later headed the Department of International Law at
the Institute of International Relations in Moscow. He had contact with

Western lawyers and diplomats in the course of his work as a Soviet delegate
to the Dumbarton Oaks conference (on the drafting of the UN Charter) and
at the UN Conference in San Francisco. It has been observed that Krylov
gave a course at the Hague Academy in 1947—marking the first systematic
presentation of socialist conceptions of international law to a (largely) West-
ern audience. Previously, debate on that subject had taken place within
the Soviet Union itself, with Westerners left to glean what they could from
the outside.
The principal feature of socialist thought in international law in the post-
war period had nothing to do with socialism per se. It was a rigid adherence
to mainstream positivism. This could sometimes be in the direction of the
empiricist variant, since socialist writers tended to stress the importance of
giving due importance to historical and material factors in legal thinking.
Tunkin, for example, in giving a capsule definition of the “Marxist method”
of legal analysis, stated that it consisted of going “from reality to abstract
conclusions” instead of the other way around. The similarity to Schwar-
zenberger’s outlook is clear.
Socialist lawyers were equally at ease emphasizing the voluntarist aspect
of positivism, since they were strong partisans of state sovereignty, the prin-
ciple of nonintervention, and an insistence on consent as the fundamental
basis of international law. They were equally strong opponents of the idea
that the states of the world form a true community rather than a mere ag-
gregation. The idea of world government was dismissed with scorn. Krylov,
for example, derided it as “a reactionary utopia” that would amount to “the
world supremacy of capitalist groupings.” These core features of the so-
cialist outlook were neatly encapsulated by the Bulgarian lawyer Alexander
Yankov in his assertion that
the international system has not changed and remains a system based
on sovereign States. Thus States are the main agents of the law-making
process where the Grundnorm, the basic rule, is consent, agreement
between the States parties. . . . [I]f there is no consent, there is no law.
This is . . . a general truth about the foundation of international law,
which is a consequence of the international system being based on col-
laboration between sovereign States.
Building Anew 421
It has been observed that, in considering relations within the socialist bloc,
socialist lawyers adopted a solidarist stance. Regarding the capitalist world,
matters were entirely different. It was now widely accepted in Soviet and
Soviet-dominated circles that general international law was not socialist in
character. Rather, it was a means by which a certain degree of pragmatic co-
operation can be carried on with capitalist states—while always retaining the
thesis that, ultimately, the interests of the two blocs are incompatible.
A highly revealing insight into socialist thought was afforded by a text-
book produced in the late 1950s under the auspices of the Soviet Institute of
State and Law (the foremost legal research organization in the country)—
with the ubiquitous Korovin as a principal contributor. The book was in-
teresting for the pointed criticisms that it directed against a number of
Western writers, with indications of where their errors lay. The Vienna
School was an obvious target, for its repudiation of the concept of state sov-
ereignty and its support for individuals as the true subjects of international
law. Solidarism was dismissed as “an unscientific thesis of inter-class soli-
darity.” That is, it was in error for its consensus ethos, which denied the
fundamental incompatibility of interests between working classes and capi-
talist classes. Furthermore, solidarists were accused of supporting calls
for world government and international police forces. American advocates
of solidarism naturally came in for heavy criticism. Philip Jessup and Clyde
Eagleton were singled out as advocates of world government and interven-
tion, and thereby as apologists for imperialism. British writers were not spared.
Brierly was attacked for reducing sovereignty to a mere “invention of theoreti-
cians” and for thereby “introducing confusion into International Law.”
The sharpest barbs were directed at Lauterpacht. He was excoriated for
asserting that individuals, as well as states, are subjects of international law
and for his attempts “to legitimize international intervention in the internal
affairs of States under the pretext of defending ‘basic human rights.’ ” His
editions of Oppenheim’s treatise were derided as completely ignoring Soviet
theory and practice, and as providing examples of “legal dogmatism and
ostentatious objectivism” in action. Another text from the mid-1950s
placed Lauterpacht—along with Kelsen, Verdross, Potter, and Scelle—among
the “minstrels of the American imperialists.” If the tone of these various
attacks on Western writers was a bit sharp, much of the criticism was justi-
fied, in the sense that these writers actually did reject doctrinaire positivism.
And if critics of positivism were being sought out for attack, then Lauter-
pacht certainly did present all too apt a target.
Even if there was no specifically socialist version of general international
law—apart from an especially rigid adherence to positivism—socialist writ-
ers did place a strong emphasis on certain legal principles. Perhaps most
conspicuously, there was a forceful and consistent denunciation of imperial-
ism and colonialism in all its forms. Its most striking manifestation was an
explicit neo-just-war thesis that was sometimes called the “Vyshinsky Doc-
trine,” named after Stalin’s leading legal minister—and chief prosecutor in
the notorious purge trials of the 1930s—who propounded it in the UN Gen-
eral Assembly in 1950. (The label was applied by American opponents of the
doctrine, not by the Soviets themselves.) The thesis was that the UN Char-
ter’s general ban on the use of armed force does not apply to one important
category of conflict: anticolonial struggles. “A just war,” in the words of the
Institute of State and Law textbook, “is a non-predatory, liberatory war,”
which includes “wars of national liberation” by colonial peoples against
their imperialist overlords. Western governments, not surprisingly,
fiercely rejected this doctrine.
Liberalism
Liberalism remained broadly true to its nineteenth-century and interwar
roots. Quincy Wright provided as apt a summation of it as can be found, es-
sentially defining liberal doctrine as favoring “the adaptation of interna-
tional law to international justice.” More specifically, liberalism had two
principal features. One, inherited from the interwar period, was support for
collective security and the UN—and, by extension, for multilateralist ap-
proaches to international problems in general. The other, dating back to the
nineteenth century, was support for human rights. The outstanding trend in
post–World War II liberalism was the sharply higher profi le of human-
rights concerns.
In terms of personnel in the liberal cause, there was a strong element of
continuity from the interwar period, since two of its foremost champions—
Wright and Lauterpacht—were still highly active. Lauterpacht even as-
cended the bench of the World Court in 1955. There was something of a di-
vision of labor involved, with Wright chiefly interested in collective-security
Building Anew 423
issues, and Lauterpacht in human rights. There were new figures in the
human-rights field, notably in the United States. One was Louis Henkin of
Columbia University. Another was Louis Sohn, originally Polish, who had
the singular good fortune to be on the very last boat out of Poland in 1939
before the war broke out. He was going to Harvard to study—where he be-
came a research assistant, and then professorial successor, to Manley Hud-
son. Thomas Buergenthal had the most immediate reasons to be committed
to the field of human rights. Originally from Czechoslovak ia and Poland, he
had been interned in concentration camps as a child by the Nazis. After
moving to the United States at the end of the war, he went on to hold various
academic posts and also to serve as a judge on the Inter-American Court of
Human Rights (in 1979–91) and later on the World Court (in 2000–10).
As in the past, liberals were explicit in pointing out what they saw as the
shortcomings of positivism. Wright objected to positivism on the ground
that it “reduces international law to such small proportions that it is able to
deal with few disputes” and that, in positivist doctrine, “the community of
nations” becomes a mere “slightly attenuated anarchy.” He insisted that
international law must possess some creative capacity—that it must contain
“within itself the means of its own change.” While in past centuries, that
had meant an appeal to natural-law principles, in today’s world, he thought
that it is “perhaps better . . . expressed by the word ‘justice’ as interpreted by
predominant world opinion.” In order for progress to occur, there must
first be a belief in justice—with that belief then implemented through law.
In the other great liberal cause—the promotion of human rights—
Lauterpacht emerged as the leader. In 1945, he pleaded for the enactment of
an “International Bill of the Rights of Man” (in a book with that title). Two
years later, in his Hague Academy lectures, he continued the struggle, with
a candid warning that “some sacrifices of sovereignty” would be necessary
to attain the goal of effective protection of human rights. And he unapolo-
getically regarded the human-rights movement as a step toward “finally con-
stituting the individual a subject of the international commonwealth.”
At the heart of international human-rights law, there remained certain
legal conundrums that continued to elude resolution. Foremost among
them was the question of the very nature of that law. Did the various human-
rights treaties (such as the Covenants of 1966) actually create the rights in
question, or should the treaties instead be regarded as merely providing
concrete protection of preexisting, inherent rights? On this issue, the divid-

ing line between positivists and liberals was (and remains) razor-sharp.
Positivists hold, on principle, that rights are the creation of law, not vice
versa. Liberals, in contrast, hold human rights to be inherent, primordial,
and inalienable rights of human beings as such. States are accordingly to be
welcomed as protectors of those rights, but not honored as creators of them.
Solidarist and Sociological Approaches

The solidarist (or sociolog ical) approach to international law blossomed in
the postwar period as never before—though along the lines laid down in
the nineteenth century and the interwar periods. It continued to be ani-
mated by two core beliefs. One was that law is a product of social and
economic circumstances and not a menu of timeless, abstract norms. The
other was that social collectivities or communities possess interests of
their own, distinct from the individual interests of their members, and
furthermore that this general collective interest takes precedence over the
myriad parochial individual concerns. As before, solidarism shared cer-
tain important features with the empirical variant of positivism—
especially positivism’s disdain for excessively rationalistic approaches,
such as that of the Vienna School. Another general feature of solidarism
that was much in evidence was a decidedly optimistic outlook. Th is was
not strictly inherent in the solidarist approach as such—and later on (as
will be seen), a pessimistic version was devised. In the fi rst postwar gen-
eration, though, solidarists tended to believe that fundamental changes
could be brought about.
Solidarism continued to be, as before, a very broad church. For example, it
could take either a “top-down” or a “bottom-up” approach to international
life. The top-down approach was essentially an elitist viewpoint—seeing in-
ternational society as being under the control of technical experts who would
supervise and organize the common people according to some scientific pat-
tern. This top-down approach was a legacy from the nineteenth century and
interwar periods, with St.-Simonism as the exemplar. Prior to World War II,
the clearest exemplar of this outlook was Lasswell, who continued his activi-
ties after 1945. The principal innovation in solidarism in the postwar period
was the development of a bottom-up—or democratic—version.
Building Anew 425
Two of the foremost solidarist writers from the interwar era were still pres-
ent and active after 1945: Scelle and Álvarez. The remarkable length of Álva-
rez’s career has been noted, but if the messenger was long-lived, the message
remained much the same. Álvarez was now able, however, to issue his pro-
nouncements from the lofty perch of the World Court bench—though only as
individual opinions and not as judgments of the Court itself. In a dissenting
opinion in 1950, he set out the basic credo of solidarism with admirable suc-
cinctness and clarity: the idea that the international community is not merely
an aggregation of wholly independent states, but rather a true society—with
“an existence and a personality distinct from those of its members.”
The result, insisted Álvarez in another dissenting opinion that same
year, was the emergence of “a new universal international conscience,”
which in turn was pointing the way to “a new international law.” This
new law was rooted in the dense interdependence of states that had arisen
in the nineteenth century. As a consequence, “the notion of absolute sover-
eignty has had its day.” The stress should now be on the duties of states
rather than on their rights. International legal doctrine must not be seen as
a closed, self-referential corpus of abstract norms, but instead as a reflec-
tion of the concrete political and social realities of the world in which it
functions. Because of the dynamism of international life, he maintained,
“the political aspect of questions is tending to have precedence over the ju-
ridical aspect.” In the law of treaties specifically (the subject area under
consideration in the case), that meant a treaty should be interpreted in the
light of the purposes that it was designed to serve, rather than in terms of its
literal text.
There were also some new figures on the solidarist scene. One was Julius
Stone, originally British but based in Australia, who doubled as a scholar of
jurisprudence (in the manner of Wolfgang Friedmann in the United States).
Another was C. Wilfrid Jenks, a British lawyer who worked for many years
at the International Labor Organization—an appropriate place for anyone
of the solidarist temperament. (Scelle also worked for the ILO.) He looked
forward to the time when the idea of the welfare state would be expanded
into the concept of a “welfare world,” bolstered by an appropriate array of
international institutions. Where peace and order had previously been the
principal goals of international law, now prosperity, progress, and the pro-
motion of human rights should be the urgent priorities.
Of the solidarist writers on the European scene, one of the boldest was
Rolando Quadri, from Italy. Somewhat confusingly, Quadri referred to his
approach as “realism”—meaning, thereby, something very different from
realism in international-relations writing. Be that as it may, he dismissed the
will-based variants of positivism (the common-will theory and autolimita-
tion) as mere “dialectical artifices.” The common-will theory was derided as
“a manifest fiction.” Also rejected were rationalist theories of law as a logi-
cal emanation from basic axioms. The correct position, he asserted, is that
law is a “social fact.” The “is” and the “ought” are not separate concepts, as
the nineteenth-century positivists had believed, but are one because reality
itself is a unity.
Unlike most solidarists, Quadri placed a great stress on sanctions and
coercion as central features of international law. “Without coercion,” he
contended, “there is no law.” The coercive force behind international law is
found not in the separate wills of the individual states, but rather in the col-
lective will of the community at large, which stands above the individual
wills of the states. International law is therefore, as he put it, “the expression
of superior needs over par ticular interests.” This superior will, he added,
is decidedly reminiscent of Rousseau’s General Will, in that it is not to be
discovered in a mechanical fashion, by majority voting. It can be discerned
only by a careful analysis of “the forces which historically succeed in ren-
dering a rule effective.” The “dominant social forces” of any given period
operate, in Quadri’s opinion, as “a ‘living’ constitution,” superior to any
written ones that exist and determine the character of international law at a
given time.
Quadri advanced a theory distinctly reminiscent of Scelle’s dédoublement
fonctionnel, in regarding states as operating, potentially, in two quite dis-
tinct capacities. One is an egoistic capacity, in which a state seeks to advance
its own interests. In the other capacity, it acts as a member of the interna-
tional community—and, as such, as a participant in the making and enforc-
ing of international law. In this second capacity, intervention in the affairs
of other states is permissible. Quadri was therefore more willing than many
other writers to accept the interventionist implications of solidarist thought,
with its stress on interdependence, community, and general interest at the
expense of narrow egoism.
Building Anew 427
Solidarist ways of thinking gained an especially firm hold in the United

States in the years following World War II, and it is not difficult to see why. In
the country’s relatively sudden emergence as a global superpower, the impor-
tance of concrete historical circumstances was vividly evident. There was
also the heritage of the American New Deal of the 1930s, in which technical
expertise, centralization of authority, and a focus on economic development
had played such conspicuous roles—leavened by a strong tinge of liberal ide-
alism. The New Dealers were, in so many ways, latter-day St.-Simonians.
New York was one place where solidarist ideas took a firm hold, at Co-
lumbia and New York Universities—to the point that the label “Manhattan
School” has sometimes been applied to writers based there. At New York
University, Clyde Eagleton advanced ideas distinctly in tune with Scelle’s
dédoublement fonctionnel. Like Scelle, he had little patience with positivist
doctrines of state sovereignty, maintaining instead that the state should be
seen as “the agent of the [international] community,” carry ing out that com-
munity’s policies within the ambit of its jurisdiction. A failure to discharge
the duties incumbent upon that agency role must result, in Eagleton’s opin-
ion, in legal liability to the larger community.
Uptown, at Columbia University Law School, Wolfgang Friedmann con-
tinued his support, begun in the interwar years, for the idea that interna-
tional law (and indeed all law) is “closely tied to the structure of the society
which it seeks to regulate.” His book The Changing Structure of International
Law (1964) may be regarded as the single best exposition of solidarist thought
of the first postwar generation. Friedmann lamented that current interna-
tional law was “no more than a loose and patchy structure of relations be-
tween sovereign States.” But he looked forward to a time when it would be
transformed from “an essentially negative code of rules of abstention” into a
set of “positive rules of co-operation.”
Philip Jessup was another prominent figure. He was on the faculty of Co-
lumbia Law School, but also did diplomatic work, some of which proved
controversial. As the author of the famous (or notorious) white paper on
China in 1949, which urged American dissociation from the Nationalist
government, he became a target of conservative anti-Communist activists.
In particular, Senator Joseph McCarthy accused him of being a Soviet sym-
pathizer. He weathered these attacks and went on to serve as a World Court
judge in 1961–70. To international-law thought, his contribution was the

idea of “transnational law.” The term was coined in 1956 and was designed
to reflect the interpenetration of legal rules and systems generally across the
world, in contrast to positivism’s dualistic picture, which sharply separated
international and domestic law. Jessup insisted on the need for interna-
tional law to be “accompanied by moves in the economic, social and politi-
cal fields calculated to remove or reduce the causes of international fric-
tion.” As concrete examples, he invoked the American New Deal (specifically
the Tennessee Valley Authority) and the Marshall Plan for Eu ropean
recovery—enterprises in which “lawyers and economists and engineers and
others worked together to solve a problem and to meet a need.” These “great
undertakings” were favorably contrasted to the Pact of Paris, which Jessup
belittled as an attempt to foist an abstract ideal onto states without regard to
the realities of life.
A short distance to the east of Manhattan, Yale Law School in New Ha-
ven, Connecticut, became the foremost American bastion of solidarism.
One of the two leading figures of this “New Haven School” (as it came to be
labeled) was the political scientist Harold Lasswell, relocated to Yale from
the University of Chicago. The other was a newer arrival on the scene, a law-
yer named Myres S. McDougal. McDougal’s original legal field had been
property law. While teaching at the University of Illinois Law School in the
early 1930s, he made Lasswell’s acquaintance—or perhaps, more accurately,
came under his spell. He moved to Yale Law School and first became in-
volved in international matters by doing legal work for the lend-lease pro-
gram during World War II. Shortly after the war, Lasswell’s move to Yale
made the partnership between the two closer than ever. They made a formi-
dable team.
What bound the two of them together was a mutual interest in values as
the essential currency of politics and law, together with a driving urge to
promote a particular set of values to the broadest extent possible. McDougal
summed them up under the rubric of “human dignity,” which became a
watchword for him. More specifically, Lasswell and McDougal devised an
eightfold confederation of values that it was their central mission to pro-
mote. (For the record, they were power, respect, enlightenment, wealth,
well-being, skill, affection, and rectitude.) The central role played by the
promotion of values sharply marked off the New Haven School from realism
Building Anew 429
in the international-relations sense of the term, with its single-minded focus

on power.
In keeping with the general solidarist outlook, Lasswell and McDougal
had little patience with normative, conceptualist, logical approaches of the
sort championed by the Vienna School. They looked to the rough-and-
tumble reality of international life for the emergence of values. The mission
of lawyers, according to this school of thought, is not to determine the con-
tents of rules, in the manner of traditional lawyers. It is to remake the world
at large by disseminating the eight values as vigorously and comprehen-
sively as possible. Theirs was a doctrine for activists rather than analysts, for
reformers rather than scholars. Lasswell liked to describe his field of study
as “policy science” instead of “political science,” so as to stress its activist
character. In the same spirit, McDougal referred to his legal philosophy as
“policy-oriented jurisprudence.” Instead of prosaic-sounding “international
law,” he preferred to expound upon “world public order.”
Perhaps the most distinctive thing about the New Haven School was the
stress that it placed on the process of decision making as the essence of law.
McDougal and Lasswell actually defined law as “the making of authoritative
and controlling decisions.” Only in very minor part, however, did this re-
fer to decision making by courts or tribunals. They were interested in all
manner of decisions in the public sphere, from the local neighborhood mi-
lieu, all the way up to the global level. Modesty of ambition was not one of
their traits.
Several points about the New Haven School are worth noting. One is that
it was strongly consensus-oriented. It was decidedly nonconfrontational,
with a stress on the changing of values as opposed to the application of
sanctions. In this respect, the New Haven School may be regarded as a di-
rect heir of those strands of functionalist thought in the 1930s that had ex-
pressed opposition to the idea of a coercive League. The New Haven School
was certainly not opposed in principle to sanctions by international organi-
zations (as, say, Borchard was). But sanctions were not at the center of their
system. The mission (as it could fairly be called) of the New Haven School
was to induce the sovereign states to endorse the eightfold value program of
their own free will, by winning the allegiance of the elites that governed
them. One effect of this outlook was to give the New Haven School a certain
propagandistic, or evangelistic, flavor. But it also meant that the New Haven
School was relatively nonthreatening. Its goal was to co-opt and convert
elites, not to overthrow them.
The New Haven School, in fact, was permeated by a general aura of elit-
ism. It may be noted that democracy was not, per se, a component of the
eightfold scheme. This was a reflection of Lasswell’s frankly elitist outlook.
Human dignity was something that was going to be brought to the masses
by their leaders. It was not something that was expected to emanate from
them. This top-down outlook had the interesting effect of enabling adher-
ents to the New Haven School to coexist peacefully with the positivists. It
was possible, in the New Haven scheme of things, to grant full respect to
state sovereignty, the sovereign equality of states, and nonintervention,
while at the same time promoting “a universal order of human dignity.”
Still another key feature of the New Haven School was its optimistic aura.
McDougal and Lasswell looked at the world as “a cauldron of aspiration for
a better life on the part of millions of human beings.” It was a philosophy
that was tailor-made for people who were impatient to burst forth from the
classrooms, libraries, archives, and lecture halls—and to set about changing
the world. The deadweight of the past meant little to it. Everywhere one
looked, there were decisions to be made, policies to be set, values to be pro-
moted. Once the rationalistic shackles of the pedantic men had been thrown
aside, there seemed no limit to what might be accomplished. Idealism, ac-
tivism, and the spirit of the new, in short, were the grains running deeply
through the wood of the New Haven School.
It may also be observed that the New Haven School was particularly well
placed to flourish in the atmosphere of the Cold War. It was resolutely West-
ern and liberal in its stress on human dignity, but able at the same time to es-
chew overt hostility to socialism. Certain aspects of socialism could even be
supported, such as measures to promote the welfare of the working classes. In
fact, the New Haven program had much of the spirit of a benevolent bureau-
cratic socialist order, of the kind that H. G. Wells and the Fabian socialists of
Britain had favored. The New Haven School may have been firmly in the
Western camp in the Cold War, but its technocratic and nonconfrontational
character enabled it to keep well away from the political front lines. It was, in
other words, a thoroughly Western program without being aggressively parti-
san. It was therefore well equipped to win support across the political spec-
trum in the West—another sign of its fundamental consensus orientation.
Building Anew 431
Critics of the New Haven School lamented the highly jargonistic char-
acter of much of the writing produced by it. Some maintained that, de-
spite the extended lip ser vice paid to the methods of the social sciences,
there was not actually much real use of them. Moreover, the impact of
the New Haven School on the real world cannot be said to have been very
great— outside American law schools, where it found a ready welcome
by virtue of its liberal (but far from radical) ethos. Outside the academic
setting, however, it is difficult to identify any initiative or development
produced by it. One looks in vain through the work of the I.L.C. or the
World Court for any substantial trace of its influence. Th is may be an indi-
cation that the New Haven School represented, ultimately, more a state of
mind than a specific program of action. As such, its influence might be
more widely diff used—if also somewhat attenuated—than its critics would
suppose.
For those who were uneasy about the elitist outlook of the New Haven
School, a kind of mirror-image alternative was on offer in the United
States—a democratic, bottom-up approach counterpart. This was a program
called the World Order Models Project (or WOMP). Its major proponents in
fact emerged from under the capacious New Haven umbrella (Lasswell was
a member of the project’s sponsoring committee). One of its leading figures
was Saul Mendlovitz, at Rutgers Law School. Another was Richard Falk,
based in the Woodrow Wilson School at Princeton. Although both Mend-
lovitz and Falk were greatly influenced by the New Haven School, they were
distinctly hostile to the idea of values imposed from above—and therefore
to traditional ideas of world government. Theirs was a more politically
sharp-edged version of solidarism, which looked to the displacement of
repressive elites and to a world of participatory democracy. It accordingly
favored a large role for nonstate and nongovernmental bodies in world
affairs.
Solidarism, in short, was—and continues to be—a variegated and sprawl-
ing world. It has never been anything like a single school of thought, but in-
stead has been more in the nature of a general frame of mind. That may have
been a weakness rather than a strength. Solidarism has sometimes seemed
much longer on aspiration than on discernible achievement. Álvarez may
have trumpeted its message—or at least its spirit—from the bench of the
World Court. But in this, he spoke alone and not for the Court as a whole.
Nevertheless, it is possible to identify two specific signs of the solidarist

outlook in postwar international law. The first was a provision in the Vienna
Convention on the Law of Treaties on what are called “peremptory norms”
of international law (or ius cogens, for those still wedded to Latin). These are
customary rules or general principles of law that override the wills of indi-
vidual states, in the sense that, if two states agree to a treaty that is contrary
to a peremptory norm (such as an agreement to discriminate against a named
racial or religious group), then the treaty will be automatically void. Pe-
remptory norms, therefore, are expressions of general community values that
trump agreements between individual states.
The other specific indication of the solidarist perspective in action was
provided by a World Court judgment in 1970, which stated that there is “an
essential distinction” between two kinds of obligation. The first kind com-
prises duties owed to a specified state or group of states. An ordinary treaty
obligation falls into this category. The second kind of obligation is owed to
“the international community as a whole”—with the crucial implication
that any and every state is allowed to make a legal claim in the event of a vio-
lation. In this category of general community duties (as they might be de-
scribed), the Court identified the prohibitions against aggression and geno-
cide, as well as (more broadly) “the principles and rules concerning the basic
rights of the human person.”
These two concepts—of peremptory norms and of obligations owed to the
world at large—are of potentially far-reaching character, suggesting the ex-
istence of a superior community will that takes precedence over the “ordi-
nary” wills of states. It cannot be said, however, that either of these notions
has actually made any major concrete contribution to international law.
Perhaps an opportune moment has simply failed to present itself. It may be
that potentially transformative concepts will loom large in the international
law of tomorrow, even if their present-day role is a meek one.
A Third World Arrives
The idea of a three-tiered international system was not new. It has been ob-
served that, during the nineteenth century, international lawyers, following
in the footsteps of contemporary anthropologists, had posited the existence
Building Anew 433
of three categories of states: civilized, barbarian, and savage. The savage

group could easily have been called the “third world,” although that partic-
ular expression was only coined in 1952, by a French demographer, anthro-
pologist, and economic historian named Alfred Sauvy. He was comparing
the colonial areas of the world to the disenfranchised middle classes of
France prior to the French Revolution—the Th ird Estate.
One important early step in the advance of the less developed world to
full membership in the international community was the final abrogation of
extraterritoriality privileges. The consular courts of Egypt closed their doors
in 1949 (as provided by the Montreux Convention of 1937). In China, too,
extraterritoriality was, at long last, brought to an end, by way of a series of
bilateral treaties. The decisive step here was a termination agreement con-
cluded with the United States in 1943. Over the next four years, similar
treaties with all of the other relevant powers ended extraterritoriality com-
pletely in the Celestial Empire (or republic, as it now was).
A more striking development was the attainment of independence by co-
lonial areas all over the world. Indonesia and India (along with Ceylon,
Pakistan, and Burma) took the lead in the immediate postwar years. The
pace picked up in the 1950s, as African colonies began to achieve indepen-
dence, with a large onrush of new states occurring around 1960. In politi-
cal terms, this development marked a major change, but in legal terms, less
so. The new governments were generally more concerned to participate
in the international legal system—that is, to benefit from it—than to over-
throw it.
The governments of the new countries had a certain natural affinity to the
socialist states. For one thing, the socialists had a long record of vociferous
opposition to colonialism. In addition, many of the new states sought to de-
velop economically along socialist lines, with centrally directed economies.
The affinity extended into the legal field as well, for the new states, like the
socialist ones, found the mainstream positivist version of international law to
be the most conducive to their interests, and for much the same reason. The
principle of the sovereign equality of states and the prohibition against inter-
vention by outside countries—no matter how powerful—had obvious attrac-
tions to poor and militarily weak countries. Instant and automatic legal
equality with the major powers—coupled with autonomy to go their own
way in terms of national policies—proved an irresistible combination.
At the same time, though, there was some dissatisfaction in the newly in-
dependent countries, as there had been in the socialist states, over the fact
that international law was overwhelmingly a product of Western Europe
and its offshoots. That meant that joining the international community en-
tailed, as it were, “signing on” to a system that had been created by very dif-
ferent countries in very different circumstances from those now prevailing.
In theory, it might have been possible for one or more of the new states to
“opt out” of this system entirely. But a moment’s thought revealed that to be
unfeasible. Such an isolated state would be an “outlaw” state in the true legal
sense. It would, presumably, have no legal status as a state, no right to UN
membership, no ability to send or receive ambassadors, and possibly no
protection from the UN Charter’s general prohibition against the use of
force. There was, accordingly, no realistic alternative to accepting interna-
tional law as it stood at the time—though with the possibility of steering its
future development along lines preferred by the new states.
Over the years, the developing countries, frequently with the socialist
states as ready allies, attempted to alter the substantive rules of international
law, but not always successfully. One conspicuous failure was an attempt to
forge a “new international economic order” in the 1970s, based on two
broad principles. One was an ironclad respect for state sovereignty, to the
point of effectively allowing host countries unilaterally to decide on the
treatment of foreign investors (including the highly sensitive question of
compensation for nationalization of property). This amounted, in short, to
an assertion of the Calvo Doctrine. The other key principle was an “obliga-
tion” on the part of Western states to transfer significant economic re-
sources to the developing world. A combination of indifference and hostility
by the developed countries, however, prevented this program from becom-
ing anything more than an aspiration.
In other respects, though, the developing countries were more success-
ful. Two of their initiatives were especially noteworthy. One was largely
symbolic and of less practical importance than had been anticipated. The
other, ironically, was soon seen to be in danger of being all too successful.
The first was in the area of armed conflict. The other was the development of
a new right of self-determination.
Building Anew 435
The Laws of War

The change in the laws of war—which proved to be largely symbolic—
concerned not the substantive law on the conduct of war, but rather the
threshold (but important) question of entitlement to combatant status. This
status is important for two chief reasons: first, it gives immunity from ordi-
nary criminal laws for acts of war such as killing enemy soldiers or taking
prisoners; second, it gives an entitlement to prisoner-of-war status in case of
capture. Combatant status in international law, however, has been reserved
for members of armed forces fighting in international armed conflicts and is
therefore not available to insurgents in civil wars. In the 1970s, the govern-
ments of the developing countries sought to remove that limitation—in
part. When two additional protocols were being drafted to the Geneva Con-
ventions of 1949, the governments of the developing countries—with strong
support from the socialist states—sought to have wars of national liberation,
along with wars against racist governments, “promoted” into the category of
international wars. This effort was successful and was incorporated into the
Additional Protocol of 1977.
There were misgivings about this, especially in developed countries, and
murmurs that this amounted to conferring a status of “just war” onto those
two categories of struggle. It is true that these two kinds of civil strife were
now given special legal treatment, by being treated as tantamount to inter-
national conflicts. But no alteration was made in the substantive general rule
prohibiting the use of force. That is to say, no special license was given to
anticolonial agitators to resort to armed force in the first place. Also, the
change had little real effect. By the time the protocol entered into force (in
1978), very few colonies remained, so that wars of national liberation were
little in evidence. Moreover, the dismantling of white racially based govern-
ments in Southern Rhodesia (in the early 1980s) and in Namibia and South
Africa in the 1990s meant that the provision on conflicts against racist re-
gimes lost their practical relevance.
Self-Determination of Peoples
The other major change promoted by the developing countries was the prin-
ciple of self-determination of peoples. This is of special interest because it
reveals the way in which legal norms can escape from the control of their
creators and assume a life of their own—and sometimes a threatening one.
One notable instance of this has been observed: the Pact of Paris, which in
its inception was thought to apply only to the conduct of states but was later
held to entail criminal liability for individuals. The concept of self-
determination, similarly, was thought at its inception to have a relatively
limited application. Its function was to impose a legal obligation onto colo-
nial powers to grant independence to their colonies.
Self-determination began its juridical life in the UN Charter, which ex-
pressly identified “the principle of equal rights and self-determination of peo-
ples” as one of the bases of friendly relations between states. A further step
was taken in 1960, when the UN General Assembly—now fortified by many
newly independent members—adopted a Declaration on Decolonization,
which pronounced that “[a]ll peoples have the right of self-determination.”
More significant was the inclusion of self-determination in both of the Inter-
national Covenants on Human Rights in 1966.
Judicial support for the principle was forthcoming from the World Court.
In an advisory opinion in 1975, in the context of Spain’s relinquishment of
control over its colony of Spanish Sahara, the Court defined self-determination,
somewhat vaguely, as “the need to pay regard to the freely expressed will of
peoples.” Since that time, no clearer idea of the content of the right has
emerged from the Court. In 1995, however, it did shed some light on its legal
status, confirming it to be “one of the essential principles of contemporary
international law”—to the point that the duty of states to respect it was ex-
plicitly held to fall into the special category of duties owed to the world at
large and not merely to the struggling peoples themselves. Moreover, in
2004, it made an explicit finding, for the first time, of a violation of it: by Is-
rael, in the form of the building of a security fence that encroached into the
Occupied Territories.
In the course of time, worries—or hopes—began to grow that the princi-
ple of self-determination might have (or acquire) a broader application than
had first been supposed. It began to be asserted that the principle also ap-
plied to distinctive (and often disgruntled) minority groups within inde-
pendent states. Some even contended that it could apply to the entire popu-
lation of independent states—thereby becoming a sort of surrogate version
of a general right of democracy. There was much uncertainty on these matters
Building Anew 437
because the right of self-determination was stated (in the Human Rights
Covenants, for example) to be a right belonging to a “people.” The idea that
a “people” could have rights in international law, along with states, was not
a new one. It bore a great resemblance to the ideas of the nationality school
of the nineteenth century, with its stress on nations—rather than states—as
the fundamental units of international life. Deciding what constituted a
“people” in the late twentieth century proved, however, to be every bit as dif-
ficult as deciding what constituted a nation in the earlier period.
The difficulties, moreover, did not end there. Worries—or hopes—arose
that the concept of self-determination might be applied to minority groups
within independent countries. Still more alarming (to some) was the possi-
bility that it might even extend to conferring a legal right of secession onto
such groups. Governments the world over hastened to forestall any such
radical notion as that. In the 1970 Declaration on Friendly Relations, the
UN General Assembly expressly stated that the right of self-determination
must not be understood as “authorizing or encouraging any action which
would dismember or impair” independent states.
There was, however, a proviso: that this antisecession understanding ap-
plies to states that possess “a government representing the whole people be-
longing to the territory without distinction as to race, creed or colour.” This
caveat has inevitably given rise to a theory that, in states where the govern-
ment is not representative of “the whole people,” oppressed peoples do have
a right to secede. This became known as the theory of “remedial” secession—
meaning secession as a last-resort remedy of a people suffering oppression,
on a discriminatory basis, at the hands of an unrepresentative government.
The theory received some consideration from the Supreme Court of Canada in
1998, when it considered the claim of the province of Quebec to secede from
Canada. The Court, however, did not reach a firm conclusion, cautiously
stating it to be “unclear” whether such a right exists in international law.
The World Court has similarly skirted this delicate question (so far). An
opportunity to expound on the subject was presented to it, following the
promulgation of a unilateral declaration of the independence of Kosovo,
from Serbia. This declaration was adopted in 2008 by the ethnic Albanian
members of the regional assembly of the province of Kosovo. At the initia-
tive of the Serbian government, the UN General Assembly requested an ad-
visory opinion from the Court as to the lawfulness of that declaration. The
Court’s response, handed down in 2010, proved to be the very soul of cau-
tion. It ruled that the issuing of an independence declaration did not, in it-
self, violate international law. In other words, it was no violation of interna-
tional law to claim to be independent. But the Court pointedly refrained
from saying what the actual effect of the declaration was (if any at all). In
practical terms, therefore, the Court merely treated the issuing of the decla-
ration as an exercise of free speech, and left it at that.
The fear (or hope) that self-determination might prove to be a more pow-
erful and wide-ranging principle than had first been envisaged was there-
fore still very much alive, and contested, in the early years of the twenty-first
century. It was a telling indication of how threatening some principles of
international law can be—especially if they should capture the imagination
of the press and public. So long as international law played little role in the
daily political life of the world, such concerns would be of little moment. But
starting around 1980, international law began to loom much larger on the
world scene that it ever had before. Some were greatly heartened by this de-
velopment. Others were not.
chapter eleven
Shadows across the Path
n May  ,  , President Slobodan Milošević of Serbia (technically,

O the Federal Republic of Yugoslavia) was accorded a very dubious
honor. He became the first sitting head of state to be indicted for crimes by
an international tribunal. Along with four other top officials (including the
prime minister and the military chief of staff ), he was alleged to have insti-
gated crimes against humanity and war crimes. More specifically, he was
accused of responsibility for the massacre of forty-five persons in the town
of Račak, in the rebellious province of Kosovo. The immediate effect of the
indictment was not great, since there was no superior power in the country
that could arrest the president. That changed, though, when a combination
of elections, street demonstrations, and abandonment by the military forced
Milošević out of office, in October 2000. He was then arrested and, in June
2001, transferred to the International Criminal Tribunal for Yugoslavia in
The Hague.
This incident was only one of many signs that international law was be-
coming a more potent force in day-to-day affairs than it had previously
been—a development over which there would be much ambivalent feeling.
President Milošević, it may be confidently surmised, looked upon the trend
with disfavor. But many others did too, for a wide variety of reasons. Inter-
national law had previously been regarded as something rather esoteric and
vague—but also fairly harmless. It nestled cozily in arcane tomes in libraries
but was seldom seen abroad in the world. When it became more frequently
sighted, it was not always welcomed.
The Renaissance of International Law
Around 1980, there was something of a change of atmosphere in world af-

fairs that led to a palpable revival of international law activity, giving to in-
ternational law a higher profi le in world affairs than it had enjoyed since the
immediate postwar years after 1945. The reasons for this change are not
easily discerned. Certainly it had nothing to do with any impending end to
the Cold War. If anything, relations between the two major powers turned
worse at about that time, largely because of the Soviet presence in Afghani-
stan. The first sign of this renewed activity was a sharp increase in business
at the World Court—sometimes in matters in which political tempers ran
very hot.
The ending of the Cold War in 1989–91 contributed to this trend, though
to some extent in a highly unforeseen manner. The state of Yugoslavia broke
into fragments in a chaotic and violent manner, accompanied by the worst
atrocities that Europe had witnessed since the Second World War. The out-
rage that arose then led to the creation of the first international criminal
court since the Nuremberg and Tokyo Tribunals of the 1940s. Progress and
atrocity were marching in wary partnership.
The Revival of the World Court

In 2012, the president of the World Court (Peter Tomka, from Slovakia)
pointed out that, in the period since 1990, the Court’s caseload was approxi-
mately double what it had been in the decades prior to that. In fact, the up-
turn in judicial business had begun rather earlier, for reasons that remain
somewhat unclear. One factor was a set of developments in the area of the
law of the sea. By the 1970s, there was a consensus that the four conventions
concluded in 1958 (on the basis of work by the International Law Commis-
sion) were already outmoded. Governments were increasingly pressing for
significant expansions in their offshore jurisdiction, most notably in two
respects: monopolies over fishing rights for large distances off their coasts,
and extensions of ownership of continental shelves (or seabed areas). To deal
with these issues, and a host of others, a conference on the law of the sea was
convened in 1973. After a great deal of wrangling, a new convention on the
subject was concluded in 1982, to replace the four earlier ones. Although
Shadows across the Path 441
the convention did not enter into force until 1994, many of its key provisions
were widely agreed to have entered into customary law.
One achievement of the new agreement was—at long last—to resolve the
vexed question of the width of territorial seas. States were now authorized to
claim territorial seas up to twelve miles off their coasts. But they were given,
in addition, a right to claim “exclusive economic zones” for up to two hun-
dred miles offshore, in which they would have fishing monopolies. That
meant that some 90 percent of the world’s fisheries now became state-
owned. States were also given ownership of continental shelves for a mini-
mum distance of 200 miles offshore and a maximum of 350 miles (depend-
ing on prevailing geographical features).
Among the consequences of this massive maritime “land grab” was a
large number of overlapping claims to offshore areas, once governments set
about availing themselves of their new prerogatives. These were the sorts of
disputes that were tailor-made for resolution by way of international arbi-
tration or litigation. The political salience of these disputes was often too
low to spark much in the way of jingoistic fervor. The issues were commonly
highly technical in character, and there were various legal guidelines and
precedents that could readily serve as a basis for resolution by independent
parties. Even before the drafting of the new Law of the Sea Convention was
complete, the Court was put to work delimiting several offshore areas. Libya
litigated against both Tunisia and Malta over boundaries between their re-
spective continental shelves in the Mediterranean Sea, while the United
States and Canada contested an area of the Gulf of Maine.
Business was picking up at the World Court in other directions, too. In
Tehran in 1979, over fifty American diplomatic and consular personnel (plus
a few unlucky private citizens) were captured and held hostage under the aus-
pices of the religious-based government of Iran, newly installed following a
revolution. The spirit of Lars Tolumnius, it appears, lived on. The American
government reacted in an unexpected fashion, by seeking an order from the
World Court to Iran for the release of the captives. Never before had the Court
been brought into the thick of such a highly charged political crisis. The Court
issued a release order, which the Iranian government refused to carry out.
The government of Iran refused even to participate in the proceedings.
In 1980 came the full judgment, holding Iran to be in violation of the Vi-
enna Convention on Diplomatic Relations (of 1961), to which both countries
were parties. The Court again ordered the release of the hostages and also
held Iran liable to pay damages to the United States (with the amount to be
fi xed later). The Tehran Hostages case was, however, hardly a great demon-
stration of the practical efficacy of the Court, since the Iranian government
made no effort to comply with its rulings. Resolution of the crisis had to
await the reaching of a bilateral settlement in January 1981. But the affair
did succeed in bringing the Court to the world’s attention as never before.
The Tehran Hostages case was only the first of a growing number of forays
by the World Court into high-profile political—and military—situations.
On two occasions (up to 2012), there were findings by the Court that states
had violated the fundamental duty to refrain from the use of armed force.
The first of these was brought in 1984, by Nicaragua against the United
States, regarding American government support for the contra insurgents.
In its judgment in 1986, the Court sustained these claims. Some of Ameri-
can activities, such as the mining of harbors and attacking of ships, clearly
constituted uses of armed force. But the Court went on to hold that various
ancillary activities fell into that category as well—including the training of
insurgents and the supply of weaponry and intelligence. The American
government, disputing the jurisdiction of the Court over the case, declined
to participate in the proceedings. (A later pro–United States government of
Nicaragua discontinued the proceedings before the Court was able to assess
damages owed.)
The second ruling on the use of armed force arose out of the wars in the
Congo in the 1990s, when a claim was brought by the Congo against Uganda.
In 2005, Uganda was held to have intervened unlawfully and thereby to have
violated the UN Charter’s prohibition against the use of force. It was exon-
erated, however, of responsibility for atrocities committed by independent
warlord groups. The Congo government sought to pursue similar claims
against Rwanda, but that country’s absence of consent to jurisdiction pre-
vented the Court from acting.
In 1994, the World Court was given the opportunity to clarify an impor-
tant component of the law relating to the conduct of armed conflict, when
the UN General Assembly sought an advisory opinion on the lawfulness of
the threat or use of nuclear weapons. In 1996, the Court gave its opinion,
which largely endorsed the position of the nuclear powers: that there is no
rule of international law prohibiting the use of nuclear weapons per se, but
that the general laws of war apply to nuclear weapons as they do to con-
ventional ones—including, crucially, a ban on the use of unnecessarily
indiscriminate weapons. The Court was able to state that, because of
their indiscriminate nature, the use of nuclear weapons would “gener-
ally” be unlawful. But on an evenly divided vote (which was therefore de-
cided by the vote of the president), the Court carefully stopped short of
holding that the use of nuclear weapons could never be lawful. It left open
the possibility that their use might be legal in “an extreme circumstance of
self-defence, in which the very survival of a State would be at stake.”
Early in the twenty-first century, the Court became involved, for the first
time, in the long-running dispute between Israel and its various Arab neigh-
bors. In 2004, the UN General Assembly obtained an advisory opinion as to
the lawfulness of Israel’s construction of a barrier between its territory and
that of the occupied West Bank of the Jordan River. It has been observed
that the Court held Israel to be in violation of the Palestinians’ right to self-
determination. It made a number of other findings against Israel, includ-
ing violations of the Covenant on Civil and Political Rights. It also held the
Israeli policy of building settlement for its own population in the Occupied
Territories to be a violation of the Geneva Convention rules on occupation
of territory. Finally, the Court pronounced that the right of self-defense (i.e.,
military action) cannot be invoked against terrorism that occurs within an
occupied area. The occupying state must instead use the mechanisms of the
criminal law.
The End of the Cold War

The ending of the Cold War was heralded by the program of perestroika
(literally “restructuring”) launched by the Soviet leader Mikhail Gorbachev
after 1985. It was a heady period, when it sometimes seemed as if a day did not
pass without some kind of radical departure from past ways. The new spirit
was evident in the international legal profession, too. In 1988, two socialist
lawyers, Rein Mullerson and V. S. Vereshchetin (a future World Court judge)
presented a paper on “New Thinking in International Law.” The changes an-
nounced were actually less than drastic, but a fresh spirit was certainly in
the air. There was now to be increased recognition given to the interdepen-
dence of states (with less insistence on state sovereignty and independence),
approval of voluntary limitations of state sovereignty, and enhancement of

the role of nongovernmental groups in world affairs. The Brezhnev Doc-
trine was quietly dropped—to the point that its very existence was often
denied. Kovalev’s 1968 Pravda article, it was explained, reflected only the
personal views of its author and not any policy of the Soviet state.
As interesting as these developments were to international lawyers, politi-
cal events attracted greater attention from the world at large—culminating
in the end of the Cold War itself in 1989, with the dramatic breaching of the
Berlin Wall and subsequent reunification of Germany. One result of these
changes was to raise the tantalizing possibility of ending the long deadlock
of the UN Security Council, enabling that body to perform its role as a
global watchman against aggression and other threats to the peace. An early
sign that this might be so occurred in 1990–91, in the wake of the abrupt
takeover of Kuwait by Iraq. A global coalition was formed, with UN Secu-
rity Council approval, that forcibly expelled the Iraqi occupying forces from
Kuwait. This marked only the second time in the UN’s history (after the
Korean War of 1950–53) in which a UN-supported armed force had been
assembled to repel an aggressor. It looked as if the reign of the rule of law in
international affairs might be under way at last.
Hope was certainly in the air. President George H. W. Bush of the United
States (a former ambassador to the UN), announced to the American Con-
gress in September 1990, in the midst of the Kuwait crisis, that the world
was now “in sight of a United Nations that performs as envisioned by its
founders.” A New World Order, he proclaimed, was in the making. He
described it as a
world quite different from the one we’ve known. A world where the
rule of law supplants the rule of the jungle. A world in which nations
recognize the shared responsibility for freedom and justice. A world
where the strong respect the rights of the weak.
Another sign of the new world was action taken—or at least authorized—by
the UN Security Council in the wake of a military coup d’état in Haiti in
1991, which overthrew an elected civilian government. Such things had
happened on countless occasions since 1945 with no reaction by the UN.
But this occasion was different. The Security Council ordered mandatory
economic sanctions against the military regime in 1993. The following
year, it went a long step further, by authorizing member states to use armed
force—or “all necessary means” in the standard diplomatic euphemism—to
overthrow (or, more diplomatically, “to facilitate the departure” of) the mil-
itary rulers. In terms of high drama, it was no match for the deposition of
Emperor Frederick II by Pope Innocent IV in 1245, but it marked the first
occasion in which an international orga nization explicitly instigated a
change of regime. In the event, an actual invasion of Haiti by the UN-
supported force did not prove necessary. At the last moment before the ar-
rival of the force, the military government agreed to surrender power.
The end of the Cold War was not, however, an altogether peaceful affair.
In Yugoslavia, it brought civil wars, first in Croatia (in 1991–92) and then in
Bosnia (1992–95). These struggles were marked by massive civilian casual-
ties and displacements (the ominous expression “ethnic cleansing” entered
the world political vocabulary at this time). The single most notorious event
was a massacre of some eight thousand people near the town of Srebrenica
in Bosnia in 1995. The World Court became involved when two claims were
brought before it for violations of the Genocide Convention—the first ones
since its drafting in 1948.
The first of the claims was by Bosnia against Serbia, chiefly regarding the
massacre at Srebrenica. The Court’s ruling, handed down in 2007, held the
Srebrenica killings to have been an act of genocide. It also held that Serbia
had violated the convention—but only in the somewhat restricted sense of
having failed to “prevent and punish” the genocide in Srebrenica. It was
exonerated of the more serious charge: of having actually instigated the
atrocity as a matter of official policy. The other claim was also against Ser-
bia, this time by Croatia, which alleged that the Serbian government had
orchestrated ethnic cleansing and large-scale destruction in the Knin region
of Croatia in 1995. As of 2013, the Croatian case (together with counter-
claims by Serbia) was still in process.
The Proliferation of Tribunals

It was not only in the World Court that international legal business picked
up sharply after 1980. One of the clearest signs of the international-law re-
naissance was a steep increase in the number of tribunals that were estab-
lished in a variety of specialized fields. One of these areas was economic re-
lations. There was a dispute-settlement mechanism associated with the
General Agreement on Tariffs and Trade (GATT), although it was not fre-
quently used. That changed when the World Trade Organization (WTO) was
created in 1995. One of the centerpieces of the WTO was a dispute-settlement
mechanism, which immediately began to produce a large volume of case law
on matters relating to international trade. For investment matters, there was
a body called the International Center for the Settlement of Investment Dis-
putes, which was established in association with the World Bank in 1966.
Somewhat like the P.C.A., it was not a standing court, but rather a mecha-
nism for the creation of arbitration panels on an ad hoc basis to resolve dis-
putes between states and private investors. In the late 1990s, a significant
increase in the center’s activity began, so that, by 2011, over three hundred
arbitrations had been arranged. In about half of these, awards were made in
favor of private-party claimants against host countries.
One of the most significant developments in the area of international eco-
nomic law was, ironically, an offshoot of the Tehran Hostages crisis of 1979–
81. It was noted that the crisis was resolved, in 1981, by agreement between
Iran and the United States. In addition to providing for the release of the
hostages, that agreement established a mixed-claims commission to adjudi-
cate claims by the two countries against one another—including claims by
private parties. A large number of these were by American investors seeking
compensation for nationalizations, breaches of contract, and similar mea-
sures. As a result, the Iran–United States Claims Tribunal produced a sig-
nificant body of case law in that area.
Another specialized area was the law of the sea. Among the innovations
of the 1982 Law of the Sea Convention was the establishment of an Interna-
tional Tribunal for the Law of the Sea, located in Hamburg. Comprising
twenty-one judges, it began functioning in 1996. By 2011, nearly twenty cases
had been submitted to it, one for an advisory opinion and the others involv-
ing disputes between states. About half of these related to the convention’s
requirement of prompt release of foreign vessels and crews taken into
custody.
Human-rights law was another specialized area with a burgeoning volume
of case law. It has been observed that, in 1976, the International Covenant on
Civil and Political Rights finally entered into force—along with its Optional
Protocol, which provided for claims by individuals against states to be
brought before the Human Rights Committee. The committee was not,
strictly speaking, a court. But in its consideration of individual allegations of

violations of the covenant, it operated effectively in a judicial capacity. In the
early years, the number of states that adhered to this protocol was modest,
but it grew steadily over time, so that by 2012 over 110 states were parties to
it. Similarly, case law was slow to emerge, but by the 1990s, it was growing
into a torrent.
There was analogous provision for individual applications against states
under the Convention against Torture of 1984. This established a body
called the Committee against Torture to adjudicate the claims. Other trea-
ties that provided for individual claims included the Conventions on Racial
Discrimination (of 1966), on Discrimination against Women (of 1979), and
on Rights of Disabled Persons (of 2006). In 2008, provision was made for
an individual-application procedure for the Covenant on Economic, Social,
and Cultural Rights. It entered into force in 2013.
There were specialized human-rights tribunals at the regional level, too.
The first one was the European Court of Human Rights, established in 1959
and situated in Strasbourg. Its function was to adjudicate claims made un-
der the European Convention on Human Rights (concluded in 1950). It
was only from the 1980s, though, that the Court had a caseload of signifi-
cant size. A similar body in the Western Hemisphere, the Inter-American
Court of Human Rights, located in San José, Costa Rica, was set up in 1979,
to decide claims under the American Convention on Human Rights (drafted
ten years earlier). An African Commission on Human and Peoples’ Rights
began operation in Banjul, Gambia in 1986, on the basis of an African Char-
ter of Human and Peoples’ Rights concluded five years previously. This
was bolstered by an African Court on Human and Peoples’ Rights, which
began operation in 2006 in Addis Ababa, Ethiopia, although its seat was
soon moved to Arusha, Tanzania. As of the end of 2012, however, only six
countries had opted to allow individual applications to be brought against
them in the Court.
In combination, the output of these various human-rights tribunals was
prodigious. The result was that the international law of human rights be-
came immensely rich and detailed. Lauterpacht would have been both grati-
fied and amazed at this development. (He did not live to see it, as he died in
1960.) Even more amazing, though, was the fulfi llment, in the 1990s, of an-
other long-held aspiration, in the field of international criminal law.
International Criminal Courts

The end of the Cold War brought the revival of a post–World War II dream
that many had thought to be definitively dead: the establishment of a perma-
nent international criminal court to function as a sort of ongoing Nurem-
berg Tribunal. It will be recalled that the project had been abandoned in the
1950s because of an inability to agree a definition of aggression. In the 1990s,
however, in the face of a global outcry against the various atrocities commit-
ted in the course of the civil conflicts in Yugoslavia, plans for an interna-
tional criminal court were hastily revived. Public pressure led the UN Secu-
rity Council, in 1993, to establish a tribunal to prosecute individual persons
accused of international crimes occurring during the breakup of Yugo-
slavia. The tribunal, situated in The Hague, began operations the following
year.
This Yugoslavia Crimes Tribunal was given jurisdiction over three types of
crime: genocide, crimes against humanity, and war crimes. (Aggression was
not included.) Genocide was now a criminal offense with a stated legal
definition—set out in the Genocide Convention of 1948—and not merely a
general term of outrage or abuse. Unfortunately, though, the legal definition
and the “popular” conception of genocide diverged considerably. According
to the popular perception, genocide is large-scale killing, motivated by racial,
religious, or ethnic hatred. The technical legal definition, however, is different.
It does require killing (or similar oppressive acts), but it does not require that
the acts actually be carried out on a large scale. Instead of focusing on the size
of the victim group, the legal definition of genocide concentrates on two other
elements: the nature of the victims, and the mental state of the perpetrators.
The victims are required to be members of a targeted racial, ethnic, national,
or religious group. More important—and problematic—is the state of mind of
the perpetrators. They must intend to commit not only the killing itself, but, in
addition, they must harbor a broader, long-term intention: to “destroy” the
victim group “as such,” either in “whole or in part.” In legal terms, this is a
highly demanding standard—especially considering that the requisite state of
mind must be proved beyond a reasonable doubt. For this reason, prosecu-
tions for genocide at the Yugoslavia Crimes Tribunal were few.
Much more useful, from the standpoint of prosecutors, was the offense of
crimes against humanity. This was given a rigorous definition in 1993, in the
Statute of the Yugoslavia Crimes Tribunal, which differed somewhat from

the general description that had sufficed at the Nuremberg Trials (where, it
will be recalled, crimes against humanity played a very subordinate part in
the proceedings). A crime against humanity is what might be called a contex-
tual crime. That is to say, it consists of the commission of certain actions—
not, however, in isolation, but as part of a broader drama. That broader
drama is an attack on a “civilian population.” The specific act of, say, murder
or torture, when done on its own, is simply an ordinary crime. But if it is
done as part of an orchestrated attack on a civilian population, then—but
only then—it becomes a crime against humanity.
Crimes against humanity proved to be much more useful to the prosecu-
tors at the Yugoslavia Tribunal than genocide because convictions were
much easier to obtain. The reason is that, for crimes against humanity, there
is no requirement of an ultimate or long-term intention, as there is for geno-
cide. It is sufficient if the accused person intended to commit the specific act
(such as murder or torture), while knowing that the act was being done as
part of an attack on the civilian population. These elements are significantly
easier to prove than the long-term intention required for genocide. Crimes
against humanity are also very useful (to prosecutors) in that subordinate
persons—the “cogs in the machine,” as it were—can readily be convicted.
The crime of genocide, in contrast, is directed, in effect, only at the leader-
ship. The reason is that, in practical terms, the necessary long-term inten-
tion is likely to be provable (if at all) only against the leaders and not the
followers. For these reasons, there were many convictions in the Yugoslavia
Crimes Tribunal of persons for crimes against humanity, and few for geno-
cide (though these included the Srebrenica massacre).
It was significantly otherwise, though, for the second international crimes
tribunal created by the UN Security Council: the International Criminal
Tribunal for Rwanda. Th is was established by the UN Security Council in
1994, to deal with the massacres of that year. It began operations in 1997,
in Arusha, Tanzania. In the press, the Rwanda atrocities were universally
characterized as genocide—and in this instance, the use of the term by the
media was borne out in the legal judgments. The Rwanda Crimes Tribunal
produced the fi rst prosecutions and convictions for genocide in the his-
tory of international litigation. The fi rst person to be convicted (after a
guilty plea) was Jean Kambanda in 1998. No minor underling, he had
been prime minister of the country at the time of the killings. By 2013, over
twenty-five convictions for genocide had been handed down by the Rwanda
Tribunal.
There was criticism of the Yugoslavia and Rwanda Tribunals for the slow
pace of their proceedings. Both bodies were still in existence at the end of
2012, although nearing the ends of their respective tasks (finally). The
Rwanda Tribunal was marred by some corruption incidents. It was also
accused of bias, for its decision not to indict anyone associated with the new,
postgenocide government—which had allegedly resorted to brutal methods
of its own in taking power and halting the killings. On the whole, though,
the achievements of the two tribunals were impressive. In all, 161 persons
were indicted by the Yugoslavia Tribunal, and all of them were (eventually)
apprehended and brought to The Hague for trial. By mid-2012, over 120
cases had been concluded. By 2013, seventy-five persons had been tried by
the Rwanda Tribunal, although nine indicted persons remained still at
large. Sixty-three of these accused parties had been convicted, many of
them for genocide.
These experiences stimulated the taking of a bolder step yet: the creation,
at last, of a permanent International Criminal Court. A conference was held
in Rome in 1998 and produced a statute for the tribunal, which entered into
force in 2002. It is located at The Hague, alongside the World Court. Four
crimes were placed under its jurisdiction: genocide, crimes against human-
ity, war crimes, and aggression. (Not until 2010, however, were the states fi-
nally able to craft a definition of aggression.) The Court (like the Yugo-
slavia and Rwanda Tribunals) was given its own in-house prosecution
division, empowered to bring cases on its own initiative. This meant that the
Court would not be dependent on states or on the UN Security Council for
its cases. It was given jurisdiction over all acts committed either in the terri-
tory of a state party or by a national of a state party (provided that the act
was committed after the relevant state’s ratification of the Rome Statute). In
addition, there was a provision for conferral of jurisdiction onto the Court
by decision of the UN Security Council.
In its first decade of operation, all of the Court’s cases concerned African
countries. The governments of four countries—Uganda, the Congo, Central
African Republic, and Mali—expressly asked the Court to take action re-
garding events in those states. These related to civil conflicts. In two other
cases (Kenya and Ivory Coast), the prosecution ser vice initiated the pro-
ceedings. Both of these involved alleged atrocities associated with election-
related violence. Two situations were submitted by the UN Security Coun-
cil: Sudan in 2005, in connection with repression and insurgency in Darfur,
and Libya in 2011, concerning civil conflict connected with the overthrow of
the Qaddafi government.
In sum, the international legal scene after about 1980 was a hive of activ-
ity, in marked contrast to the relatively fallow period of the previous de-
cades. With so much to do, it may be wondered whether international law-
yers had the time or inclination to ponder whether their discipline might
itself be undergoing important changes. There were discussions along this
line, although they continued to be largely along the lines already mapped
out.
New Intellectual Trends
The writers of the interwar period gradually passed on. Kelsen retired from
teaching in the 1950s. In the 1960s, Hudson, Korovin, Lauterpacht, and
Scelle all died, while Wright, Potter, and Wellington Koo ceased to be active.
(Koo, incidentally, left a culinary as well as a juridical mark in world history,
by having the dish “cabbage Wellington” named after him.) Jessup retired
from the World Court in 1970. Wolfgang Friedmann died in 1972 (by gun-
fire, as a bystander to an armed robbery incident in New York City). The last
major links to the interwar period were Schwarzenberger and Lasswell, who
both remained active until the mid-1970s.
In the generation that succeeded these figures, there was much intellec-
tual ferment, but it continued along lines that were recognizable from the
interwar era, and even from the nineteenth century. The four major approaches
to international law continued to be in evidence: positivism, natural law, liber-
alism, and solidarism.
In the positivist perspective, there were no major new departures in the
post-1980 years. But neither was there any shortage of firm supporters. In
Britain, Ian Brownlie continued to be a prominent figure in this camp, as did
Prosper Weil in France. Another notable supporter, also from France, was
Pierre-Marie Dupuy, whose lectures at the Hague Academy in 2002 presented
a vigorous exposition of the mainstream positivist stance, stressing the cen-

trality of state sovereignty in international law. The other three schools of
thought retained their basic character. But within them, there were some
new departures and fresh twists.
Solidarism and Consensus

The end of the Cold War era held out a promise of consensus on a truly
global scale. Its best-known prophet was the American political scientist
Francis Fukuyama, who welcomed the new era, in a memorable phrase
(borrowed from Hegel), as “the end of history.” By this was meant, of
course, not the end of historical events, but rather the end of clashes between
grand rival ideologies. Authoritarian socialist ideas had gone down to com-
prehensive defeat, leaving liberal capitalism in sole command of the field. In
such an atmosphere, the ethos of the New Haven School, with its spirit of
consensus, might be expected especially to thrive. It could even be said that,
with the end of the Cold War and the collapse of the Soviet Union, its cam-
paign for the global promotion of human dignity had been triumphantly
vindicated.
To a significant extent, this was so. The general spirit of the New Haven
School was evident in the work of Thomas Franck, of New York University.
Franck, whose writing was much more comprehensible than that of Lass-
well and McDougal, saw the end of the Cold War as “heralding a forthcom-
ing transformation in international law.” More generally, he looked with
approval upon the transformation of the world from “an anarchic rabble of
states” into what he called “a socialized community.” By this, he meant a
genuine global society in which an array of organizations (and even indi-
viduals) cooperated to achieve advances in such areas as environmental
protection, relief of poverty, and advancement of human rights.
Franck’s most distinctive contribution to the consensus way of thinking
was an insistence on what he called “fairness” as the critical feature of inter-
national law. Fairness, he explained, has two principal features. The first is
procedural justice or legitimacy. The second is an allocation of resources
that is regarded as being, in some sense, at least minimally satisfactory. A
system that possesses these two features would be fair (in Franck’s mean-
ing) and, as such, would be accepted as legitimate by the states which are
components of it. It is this perception of legitimacy that, to Franck, gives

international law its binding force.
Central to Franck’s consensus approach to international law was a down-
playing of coercive sanctions in favor of a system of free and voluntary
compliance. It is vital, in Franck’s view, that international law be volun-
tarily adhered to by states. In this regard, Franck was the clear legatee of
nineteenth-century neo-Kantian thought. Evident, too, is the heritage of
certain functionalist writers of the interwar period, who had opposed a
coercive, sanctions-based system of international law. Clearest of all is the
influence of the New Haven School, with its optimism that consensus is pos-
sible and that it will be based on broadly liberal principles of fair play. In this
regard, Franck expressly invoked the work of the influential American po-
litical theorist John Rawls in support of a basically democratic and egalitar-
ian system.
Another addition to the expansive solidarist stable—also animated by a
pronounced consensus outlook—was an approach known as constitutional-
ism. In some respects, constitutionalism is simply the most recent synonym
for solidarism. That is, it is the thesis (together with its many ramifications)
that the interests of the community as a whole should prevail over the rights
and obligations of individual states vis-à-vis one another. The law that em-
bodies this general community interest is seen as a sort of public law (or
constitutional law) of the society, in contrast to the private law (or contract-
like) character of the bilateral relations of the states with one another. A
particularly clear and thorough presentation of this thesis was made by the
German lawyer Bruno Simma, a professor at the University of Munich (and
future World Court judge), in a course of lectures at the Hague Academy in
1994. These can well be regarded as the classic statement of the solidarist
philosophy of international law.
Constitutionalism was not newborn in the late twentieth century. It had
roots in the interwar period (as its proponents were well aware). In the 1920s,
Verdross had advanced the idea of a constitutional order for the international
community. (Significantly, Simma had collaborated with Verdross in aca-
demic writing early in his career.) In Britain, Arnold McNair had spoken
of certain treaties as creating a “constitutional international law.” In the
early post–World War II period, Quincy Wright had proclaimed the advent
of a “new international law” in which the various states formed “a world
union,” with the UN functioning as a kind of global federal government on

the obvious model of the federal system of the United States. The clearest
intellectual ancestor of constitutionalism was Scelle, who had presented his
monistic, federalist system in explicitly constitutional terms.
Among the leading latter-day constitutionalists have been a number of
German writers. The prominent role of Simma has been noted. He went on
to serve on both the I.L.C. and the World Court. Christian Tomuschat, who
taught at the University of Bonn and later at Humboldt University in Berlin,
has been another important figure, as have Andreas Paulus of the University
of Göttingen and Bardo Fassbender of Humboldt University. Elsewhere in
Europe are Jan Klabbers of the University of Helsinki, Anne Peters of the
University of Basel, and Geir Ulfstein of the University of Oslo. In the
United States, a leading figure has been Joel P. Trachtman of the Fletcher
School of Law and Diplomacy at Tufts University.
It has not been envisaged that the “constitution” of the international com-
munity would be a single written document—at least not in anything like
the immediate future. Rather, the constitution is seen as the set of values for
a community, whatever their source might be or wherever they might find
expression. The international constitution is therefore unwritten and ever-
evolving through practice, more in the manner of the British constitution
than of the written German or American ones. Constitutionalism therefore
refers to a general consensus of values. This emphasis on consensus and val-
ues indicates a strong intellectual bond with the New Haven School.
Several fundamental tenets of the constitutionalist version of solidarism
are of note. One is the principle of the rule of law. Power should be exercised
not arbitrarily but according to rules, and in the interest of the general com-
munity. Constitutionalists therefore have an interest in the judicial review-
ability of political bodies—including the UN Security Council. In this
sense, constitutionalism is a sort of legalistic counterpart of the New Haven
School. Where the New Haven focus was on the decision making itself—that
is, on ensuring that the “right” decisions are made in the first place—the
constitutionalist strategy has been to ensure that there is some kind of judi-
cial supervision that can override or correct “wrong” decisions.
Another central feature of constitutionalism is a stress on organizations,
and systems of order in general, as living, evolving regimes. This marks con-
stitutional systems off from “ordinary” treaties, in that the function of an
ordinary treaty is to implement the joint will of the parties that concluded it.
Constitutional systems, in sharp contrast, have a will or purpose of their
own, distinct from those of the individual states that are parties to them.
They are ongoing, autonomous regimes—living, growing, evolving, con-
stantly self-adjusting in the face of ever-changing circumstances. Álvarez,
in a dissenting opinion from the World Court in 1951, expressed this point
vividly, with regard to multilateral conventions generally. Such conventions,
he insisted,
must not be interpreted with reference to the preparatory work which

preceded them; they are distinct from that work and have acquired a
life of their own; they can be compared to ships which leave the yards
in which they have been built, and sail away independently, no longer
attached to the dockyard. These conventions must be interpreted with-
out regard to the past, and only with regard to the future.
It will be recalled that the nineteenth-century positivists had been sensitive

to the difficulty posed by seeing international law as a set of rigid rules pro-
tecting vested rights. Such a conception of law was essentially a static, con-
servative one. But where the positivists had offered war as a mechanism for
creating new rights and extinguishing obsolete ones, the constitutionalists
envisage a peaceful process—a legal system that contains within itself the
capacity to adapt to changing times.
The constitutionalists have also had a strong concern over what they call
the “fragmentation” of international law. This is, in a way, a sign of the em-
barrassment of riches that was now besetting the field. There has come to be
a fear that there might be too much international law in the world rather
than too little (as had always been the concern in the past). In particular, the
worry has been that there are too many specialized subsystems—for exam-
ple, economic law (which in turn comprised subcategories of law in the fields
of trade, investment, and intellectual property), human-rights law, environ-
mental law, law of the sea, criminal law—and that the norms of these subsys-
tems might very well turn out to be inconsistent with one another.
An illustration of how this could be so was offered by Garrett Hardin, an
ecologist at the University of California at Santa Barbara, in a seminal article
published in 1968, entitled “The Tragedy of the Commons.”  He was con-
cerned over incompatibility between traditional liberal values and the ur-
gent need to protect the environment. His principal concern was over-
population. Part of his proposed solution was drastic: bringing an end to
what Hardin called “our present policy of laissez-faire in reproduction.”
The principle of “freedom to breed,” in combination with the belief that all
persons have “an equal right to the commons,” was seen as producing a
global tragedy. Hardin was expressly critical of the Universal Declaration
of Human Rights for exacerbating the situation by its assertion of a funda-
mental right to marry and found a family. “If we love the truth,” he warned,
“we must openly deny the validity of the Universal Declaration of Human
Rights.” 
Nor, maintained Hardin, would it suffice simply to urge individuals to
exercise restraint and responsibility. Some form of compulsion will be nec-
essary. “The only way we can preserve and nurture other and more precious
freedoms is by relinquishing the freedom to breed, and that very soon.”  In
support of that thesis, the noted economist Kenneth Boulding proposed (ap-
parently in all seriousness) that human breeding be licensed, by means of
the issuance of tradable permits to have children. With only a fi xed number
of permits issued, market forces would channel reproduction activity in the
direction of those willing or able to acquire the necessary licenses.
The way to resolve such clashes of rights and values, in the opinion of
constitutionalists, is to devise some kind of “master system” of norms.
Where traditional international law adjudicated disputes between states, the
constitutionalist version would adjudicate disputes between rival subsys-
tems or rival sets of rules. The quest for a master system of norms has been
in some ways reminiscent of the search of Kelsen and the Vienna School for
a basic norm on which to ground the whole of international law. But where
Kelsen had posited the existence of a single basic norm, which was inevitably
very general in nature, the constitutionalists envisage a whole system of
rules. Moreover, these rules are not seen as abstract and formal, in the man-
ner of Kelsen’s normative system, but instead as fairly specific, concrete, and
substantive.
It has been envisaged that constitutionalism in action would function in
practice somewhat along the lines of the American and German federal
models. An overarching rule of law would operate in a continuous fashion
to resolve clashes of jurisdiction and conflicts between substantive norms,
and also to deal with abuses of powers and rights. Constitutionalism is

therefore a program of eternal vigilance, in which principles of separation of
powers and judicial review of government actions play a central role—
concepts clearly borrowed from national constitutions. The goal is to ensure
the compatibility of the various subsystems with one another, and with the
overarching values of the community at large. These include such concerns
as democracy, protection of human rights and the environment, and the
reduction of poverty and inequality.
The general spirit of the New Haven School is palpable in all of this. Con-
stitutionalism also resembles the New Haven School in possessing some-
thing of a managerial or bureaucratic aura. Its natural milieu is the func-
tioning of international organizations—in which trained managers bring
rational order to various walks of international life, on the basis of the
constitutional instruments. The staffs of these organizations could be seen
as the dutiful and watchful custodians of general global interests. The orga-
nizations, in turn, would be subject to an overarching set of values to en-
sure that their operations would be compatible with one another. Constitu-
tionalism is therefore a natural, in-house doctrine for international civil
servants.
Like the New Haven School before it, constitutionalism is open to the
criticism of being excessively academic, with little to show in the way of ac-
tual effects on international law as it operates in the real world. There have
been some doubts, for example, as to whether the feared fragmentation of
international law really poses such a grave threat. The International Law
Commission undertook a study of the subject and concluded, in 2006, that
there was not really much of a problem. Traditional legal methods, such as
the normal rules of treaty interpretation, are sufficient (at least for the pres-
ent) to deal with potential conflicts between legal regimes or subsystems.
More specifically, the study concluded that, even for such problems as did
arise in this area, “no homogenous, hierarchical meta-system is realistically
available” to deal with them.
It may be that constitutionalism—yet again like the New Haven School—is
best seen as a general reform program not closely tied to specific events in
the real world. That may detract from its practical utility, but it may also
ensure it a long life in the groves of academe, where a highly intellectual ap-
proach, combined with a strong commitment to liberal values, will often
find a ready welcome. It may be that constitutionalism, like the New Haven
School, will make its mark in the world by way of a general opening of
minds, rather than through specific, identifiable marks of achievement.
Closely related to constitutionalism, but with a somewhat different em-
phasis, is the program grandly known as global administrative law. It is a
direct descendant of the St.-Simonian vision of the nineteenth century. Its
principal champion has been Benedict Kingsbury, a native of New Zealand
who has taught at New York University Law School, where Eagleton and
Franck had been based. The program is basically a direct continuation of the
law as marked out earlier by von Stein, Reinsch, and others in the nine-
teenth and early twentieth centuries, as well as by Potter in the interwar
period. This heritage has been generously acknowledged by Kingsbury.
Global administrative law, like constitutionalism, bears many of the hall-
marks of the New Haven School, with its vision of law as being, in essence, a
decision-making process. Like constitutionalism, global administrative law
has been sharply focused on the rule of law, although it gives relatively little
attention to legislative or judicial aspects of governance, focusing instead (as
the name implies) on international administration, chiefly through interna-
tional organizations. Its interests also extended to hybrid and private bod-
ies, as well as to intergovernmental ones. In general, though, it was a close
partner of constitutionalism.
Solidarism’s Dark Side

Solidarism, it has been observed, has generally been suff used with an ethos
of consensus. It has sought to remold international society through persua-
sion and the propagation of liberal values rather than through coercion or
violence. In this regard, Comte’s motto of “Order and Progress” could be
applied to solidarism as readily as to positivism. Solidarism has also been an
optimistic philosophy in its belief that order and progress are reconcilable,
that its goal of changing hearts and minds (the New Haven approach) or of
bringing the rule of law to bear (the constitutionalist strategy) can succeed.
It is possible, though, for solidarism to come in negative and pessimistic
flavors, too. This became evident with the arrival of an overtly radical and
purportedly new approach to international law, known as critical legal
studies.
Critical legal studies, in important part, was a delayed expression of the

rebellious values of the 1960s. But it had historical roots further back,
principally in American legal realism, which was distinguished by a belief
that judicial decision making is governed not by objective rules or legal con-
cepts, but instead by more immediate and material factors such as the social
and economic backgrounds of judges. Critical legal studies has been firmly
in the solidarist, or sociological, tradition of thought in its insistence on see-
ing the legal process as a product of the social milieu in which it operates. It
has even been asserted that the “single most telling insight” of critical theory
is the belief “that law is nothing but a repetition of the relationship it posits
between law and society.” No one could ever accuse critical legal studies of
engaging in triumphalism. On the contrary, it is strongly pessimistic in its
outlook, seeing international law as “a discipline in crisis.” Traditional inter-
national law has been derided for its “doctrinal emptiness”—which has given
rise, in turn, to “cynical manipulation.”
The principal figure in the movement (as it could fairly be called) has
been David Kennedy of Harvard Law School. He suggested the alternative
label of “new stream thought” (which, however, failed to take hold). Another
prominent adherent is Martti Koskenniemi of the University of Helsinki.
He has brought a strong element of historical insight to bear, along with a
measure of practical experience—as a legal adviser to the Finnish foreign
ministry and as a member of the I.L.C. Koskenniemi is the author of the
single best-known treatise from the critical school, From Apology to Utopia
(1989).
Of the earlier versions of solidarism, the one to which critical legal studies
bears the greatest resemblance is the World Order Models Project approach.
Like its predecessor, it offers a bottom-up perspective, as opposed to the top-
down one of the New Haven School. The critical legal studies movement has
gone further than the World Order Models group, though, in its principled
rejection of consensus. It is a conflict theory, seeing a world of oppressors
and victims. The solution is not to promote consensus, understanding, and
togetherness between these groups. Nor is the solution to arm the victims
with legal rights. Instead, the way forward is for the victims to become
politically aware, to orga nize themselves, and to take power (somehow
or other) from the oppressors. Human dignity is the ultimate end—as it has
been for the New Haven School—but it will come about not through the
spread of key values from elites downward to the whole population, but in-
stead through the eventual triumph of the victims over the oppressors.
Where the constitutionalists have worried about fragmentation of inter-
national law—while being confident that they could overcome it—the criti-
cal writers have been concerned about indeterminacy. Rules, insists Kosken-
niemi, are “few and ambiguous and loaded with exceptions.” Positivists
cheerfully accepted the existence of gaps in the law and were content to wait
patiently until they were filled. The critical group, however, has scented dan-
ger. The fear is that lawyers typically respond to gaps in the law by devising
pseudosolutions in the form of grand-sounding general principles (the “uto-
pia” part of Koskenniemi’s thesis). They then proceed to apply these in the
ser vice of the material interests of ruling powers, that is, their governmental
employers (the “apology” part of the process). Traditional legal analysis
thereby becomes, in effect, an elaborate charade, with the end effect of en-
sconcing existing vested interests more firmly in power.
The reality, Koskenniemi insists, is that the hallmarks of the international
legal process are “[u]ncertainty and choice”—and that to assert otherwise,
in the name of general principles, is to be either naïve or dishonest. There
is no set of universal norms to which appeal can be made. Laws arise out of
a complex web of particular social relations, which must be understood in
their own terms, and not in terms of some (nonexistent) set of overarching
norms. Koskenniemi explicitly favors “renouncing the search for a World
Rule of Law.”
This outlook naturally places the critical school in direct opposition to
the constitutionalists, with their dedication to the rule of law and the search
for global values. The constitutionalists have been attacked by the critical
school for being too prepared to accept existing political and social arrange-
ments without question. Kennedy has chided them for being too concerned
about process rather than substance, too obsessive about making interna-
tional government work effectively, instead of worrying about who was do-
ing the governing. “Improving the machinery of government makes no
sense,” he scoffed, “if scoundrels rule.” He has derided constitutionalism
as “something of a game for intellectuals from the middle powers.” Critical
legal studies, in contrast, has been more intent on changing the identities of
the power holders than in fencing them in by constitutional principles and
the rule of law.
Hostility to liberalism has been another hallmark of critical legal stud-

ies. This is apparent in its strongly collectivist outlook. It is comparatively
indifferent—or even actively hostile—to concerns of human rights and civil
liberties. Kennedy has been critical of human-rights law for reducing people
to the status of mere “right-holders,” an approach that “blunts awareness of
diversity, of the continuity of human experience, of overlapping identities.”
In place of liberties for individuals, bolstered by the rule of law (with these
in turn fortified by legal sanctions or protective mechanisms), the critical
school substitutes direct, and collective, political activism by formerly ex-
cluded groups. What is important, it insists, is that the excluded groups
seize political, social, and economic power, not that they be the objects of
paternalistic protection by existing elites.
Like the New Haven School, critical legal studies would have nothing to
do with the anti-intellectualism that sometimes characterized mainstream
positivism. On the contrary, it is densely soaked in theory. But where the
New Haven School’s heritage was in political science, social choice theory,
and similar fields, the critical legal theorists have owed much to European
structuralist thought in linguistics and anthropology. They tend to see law
in terms of language—as a conversation, dialogue, rhetoric, or narrative,
rather than as a set of overarching rules.
Critical legal studies is therefore a combination of sometimes forbiddingly
dense theoretical exposition with a ringing call to radical political action. In
this regard, too, it bears some resemblance to the New Haven School. But it
has strongly rejected the New Haven School’s elitist, managerial outlook, as
well as its sunny optimism. Kennedy, for example, has bluntly criticized the
New Haven group for being “associated with establishment social engineering
and the status quo.”
The aura of pessimism and negativity has imbued the critical-studies move-
ment with something of an ethos of paranoia and resentment, thereby ensur-
ing that it would be only a minority taste. But the movement was also
marked by a brash determination to break out of established paths, along with
a mission to penetrate appearances, unmask hypocrisy, and bring power to
the oppressed. Like the New Haven School, of which it is a sort of negative
shadow, critical legal studies may be said to have been an opener of minds
more than a doer of deeds. But the value of opening minds should not be
underestimated.
New Directions in Liberalism—Feminist Critiques

In the area of liberalism, there were some innovations too. The principal one
was an attempt to articulate a feminist approach to international law. There
was certainly no gainsaying that the field of international law has been an
overwhelmingly masculine preserve throughout history. Prior to the twen-
tieth century, the lone important female contributor to the subject was
Christine de Pisan in the fourteenth and fifteenth centuries. Apart from
her writing on the laws of war, she was a strong advocate of the advance-
ment of women.
Indications of gender-based analyses had appeared prior to the late twen-
tieth century, though not from the pens of women. Bluntschli had posited
that states and governments are intrinsically masculine—in contrast to
churches, which are equally intrinsically feminine. More recently, the
Dutch lawyer Cornelius van Vollenhoven, in the immediate aftermath of
the Great War, foresaw that, in the future, women would assume increas-
ingly prominent roles in what he called the coming “second age” of interna-
tional law. The older, more traditional, male-crafted law of the previous era
would then come to be “hated and detested by [the] warmer and more deli-
cately sensitive heart” of the new international woman.
Whether the feminists of the post-1945 era were best described as “deli-
cately sensitive” might be a matter of some doubt. The two most prominent
champions of feminism have been Hillary Charlesworth, of Australian Na-
tional University, and Christine Chinkin, of the London School of Econom-
ics. To a large extent, feminist contributions to international law have been
squarely in the liberal tradition, with its stress on the removal of arbitrary
discriminatory barriers against disfavored groups. This aspect of feminism
fitted comfortably into the broader human-rights movement. An important
early step in this process was the drafting of the Convention on the Political
Rights of Women in 1953. It was only in 1979, though, that an international
convention was concluded for the comprehensive eradication of discrimina-
tion against women in all walks of life. In 1999, the convention was supple-
mented by an optional protocol that established two enforcement proce-
dures. One was a provision for inquiries into grave and systematic violations
of the convention. The other was a system of individual applications, compa-
rable to that which exists for the Covenant on Civil and Political Rights.
A second major contribution of feminists has been to raise the profi le of

specific issues in international law that are of special interest to women.
These include domestic violence, which had largely been outside the pur-
view even of international human-rights law. Another issue is human traf-
ficking, sometimes done in conjunction with forced prostitution or sexual
slavery. The law of armed conflict has been another topic of intense concern.
There has been criticism that rape and other forms of sexual violence are not
expressly identified in the laws of war as war crimes.
If feminists have looked outward to the world at large in the quest to ad-
vance the position of women, they have also looked inward, to international
law itself. The concern here has taken two principal forms. One is a cam-
paign to raise the profile of women within the international legal profession.
Charlesworth and Chinkin have been outspoken in their contention that
sexism is a “pervasive, structural problem” in international law. It has even
been contended that international law itself, as a system of ideas and rules, is
masculine or patriarchal in nature. Charlesworth has suggested that she
endorses this thesis, by her assertion that international law “implicitly ex-
cludes women by assuming a male norm.” International law has been ac-
cused of making, in general, too sharp a dichotomy between the public and
private spheres of life. This is condemned as “an ideological construct ratio-
nalizing the exclusion of women from the sources of power.” It is also im-
portant, it has been argued, for international law to take account of the ac-
tions of nonstate actors, as well as of governments, into account if oppression
against women is to be effectively ended.
More generally yet, Charlesworth, in the spirit of the critical legal studies
writers, has voiced a dark suspicion of the very idea of “neutral and impar-
tial standards,” on the ground that they are merely “synonyms for male
perspectives.” It has been contended, somewhat vaguely, that “the funda-
mentals of legal persuasion” need to be reexamined. Traditional interna-
tional legal thought has been accused of “simply [reproducing] a masculine
type of reasoning” In contrast, contended Charlesworth, “[f]eminist meth-
ods emphasize conversation and dialogue rather than the production of a
single, triumphant truth.” In a similar vein, there is opposition to “the
organization of legal materials in predetermined, watertight categories.”
This has included criticism of liberal, rights-based approaches to interna-
tional legal issues.
At the same time, though, Charlesworth has held back from endorsing
the thesis that there is necessarily any intrinsically and ineluctably feminist
version of international law. She looks forward “to the day when issues of sex
and gender will become less relevant,” with the concerns of “humanity” be-
ing correspondingly more significant. She also concedes that international
law has not been a major oppressor of women—indeed, that international
law “gives much greater attention to the position of women than almost any
national legal system.”
If the value of the various rival conceptual approaches are to be judged in
terms of observable impact in the real world, then feminism would surely
score at or near the top. Concern over the victimization of women in armed
conflict, for example, was reflected in the 1990s, with the inclusion of rape
as a potential component of crimes against humanity in the statutes of both
the Yugoslavia and Rwanda Crimes Tribunals. Rape, along with sexual vio-
lence in general, was included in the Rome Statute’s definition of crimes
against humanity. Furthermore, the Rome Statute’s provision on war crimes
also expressly included sexual violence
In addition, women steadily, if slowly, gained a higher prominence within
the international legal profession in the years after 1970. Most conspicuously,
they gradually became more prominent in international-law positions in law
faculties and on courts and tribunals. The first woman ascended the World
Court bench in 1985, when Suzanne Bastid, from France, was selected as a
judge ad hoc by the Tunisian government, for an offshore boundary case
against Libya. The first woman elected to a regular term on the Court was
Rosalyn Higgins, from Great Britain, a professor at the London School of Eco-
nomics. She was elected in 1995. In 2012, there were two women (of fifteen
judges) on the World Court, one (of twenty-one) on the Law of the Sea Tribu-
nal, ten (of eighteen) on the International Criminal Court, and two (of thirty-
four) on the International Law Commission. Women also achieved top posi-
tions in various international organizations, including the World Health
Organization, UNESCO, and the IMF. The key UN High Commission
posts—for refugees and human rights—have also been held by women. Male
domination of the international legal world was certainly not a thing of the
past by the early twenty-first century. But it had been significantly reduced.
Natural Law
The tenacity of natural law is one of the great testaments to the continuity
of the human intellectual experience. No line of thought made a greater
contribution to the development of international law— even if the positiv-
ists had little hesitation about kicking away the ladder once their fore-
bears had climbed it. Since the nineteenth century, natural law had been
relegated to the margins of the international legal scene. But it found a
doughty champion in the late twentieth century in the form of Philip Al-
lott of Cambridge University. In the manner of Le Fur, Allott harked back
to the medieval rationalists—and (in spirit at least) even further, to the
ancient stoics. His principal work, entitled Eunomia: New Order for a
New World (1990), was aptly described by Koskenniemi as “unabashedly
nonmodern.”
A strongly rationalistic, speculative focus gives Allott’s work an affinity to
that of Pufendorf and Wolff. The book begins, in good Euclidean fashion,
with the setting out of four basic propositions. One of these is the assertion
that “international law is the law of the society of the whole human race and
of the society of all societies.” In the classic natural-law tradition, the hu-
man species is treated as a single great society or moral community. Not
surprisingly, Allott has been contemptuous of the positivist picture of inter-
national law as merely governing relations between states.
Allott’s self-proclaimed task has been to craft “a general theory of society
and law which is potentially universal.” Making no more than token ges-
tures to readability, he has sought to combine the intellectual coherence and
comprehensiveness of Kelsen with the social-science perspective of McDou-
gal. He paints a picture of consciousness as the driving force of human his-
tory in general and even speaks of “consciousness-creating-consciousness”—a
sort of chain of development of ever-advancing collective mental stages at-
tained, over time, by the human race. Like so many natural-law writers be-
fore him, he is a strong supporter of the principle of the natural sociability of
the human species, looking forward to the time when international law will
reflect and embody the imperatives of humanity as a whole instead of “the
self-determined interests of so-called states.”
This line of thought is reminiscent of the ideas of the French theologian
and philosopher Teilhard de Chardin, who set out a grandiose scheme of
collective human mental development (which in turn was reminiscent of

the ideas of the medieval Spanish Muslim philosopher Ibn Rushd, or Aver-
roes). The goal in Teilhard’s system was what he called Omega, which was
basically the unification of all human consciousness into one, including a
unification with God.
Certain aspects of Allott’s theory are in tune with more modern thinkers.
The constitutionalists and the global administrative law group, for example,
both incline toward a progressive unification of the human race. In their
case, however, the unification is to take place under a set of constitutional
rules, or of bureaucratic or administrative dictates, rather than within the
warm and vital bosom of a universal consciousness. Allott’s ideas are, in
fact, a sort of quasi-religious or mystical counterpart of the constitutionalist
and global administrative programs. It is hardly surprising, though, that
most working international lawyers have felt more comfortable taking
the constitutional and administrative paths and have accordingly resisted the
allure of Allott’s remarkable neo-stoic-cum-neo-medieval confection. Per-
haps they are the poorer for it.
Triumph—and Resistance
It has been observed that in no ancient society was there a deity of inter-
national law. In more recent times, international law has been said to suf-
fer from a deficiencies of a more characteristically modern kind: poor
public relations, and the absence of a constituency. In the immediate af-
termath of the Second World War, Clyde Eagleton ably articulated the
problem:
The great weakness of international law has always been that it has not
commanded public interest and support. It has been faraway and
mysterious—the sort of thing you read about in spy thrillers, but which
you never touch as an individual. . . . [U]nless international law can be
brought closer to the individual, unless he can see the benefits which it
offers him as a person, unless he can feel the pull of loyalty and duty
toward it, the average citizen will not give it . . . support.
He called on international lawyers to “come out of [their] ivory towers . . .

and work at the job of making international law a ser viceable institution for
the individual human being.”
Over the ensuing decades, it appeared that international lawyers had fol-
lowed this advice. Perhaps all too earnestly. Since about 1980, international
affairs have intruded ever more deeply into sundry walks of life that had once
been thought to be the exclusive prerogative of individual states—from eco-
nomic relations to environmental protection to human rights. International
lawyers—the foremost consumers at this great transnational smorgasbord—
would naturally be expected to look on this state of affairs with hearty (not to
say well-fed) approval. Others, however, have been less pleased. Interna-
tional law may no longer be so far away from ordinary lives, but it continues
to have something of an alien character, representing the preferences of
distant elites with their potentially ominous-sounding agenda of “globaliza-
tion” (a word coined in the 1980s).
This globalization agenda could easily be regarded as more threatening
than liberating. The increasing freedom of trade and investment, for ex-
ample, brought fears on the part of local economic interests of being out-
competed by distant (and often low-paid) foreigners. On a broader level,
fears have grown that economic liberalization leads to greater inequality,
to environmental degradation, and to oppressive labor conditions in poor
countries.
There have also been worries that international human-rights bodies in-
trude too officiously into the national affairs of many states—without show-
ing sufficient respect for the distinctive features of different cultures. The
European Court of Human Rights, for example, while conceding that popu-
lar attitudes and the “moral climate” of a particular society are factors to be
considered, held that it—and not the national authorities—has the final say
on whether a given restriction on freedom is really “necessary in a demo-
cratic society.”
Misgivings have been voiced within the legal profession, too. Eric Posner,
of the University of Chicago Law School, warned of what he called, in a
book published in 2009, The Perils of Legal Globalism. Posner defined legal
globalism as “an excessive faith in the efficacy of international law” and al-
ternatively as the belief that “international law transcends the interests of
states and holds them in its grasp.” He protested against the legalistic ap-
proach to world affairs, as tending to degenerate into an excessive reverence
for rules of law as ends in themselves rather than—as they should be—
means toward the practical resolution of conflicts in the political arena.
It was therefore not surprising that resistance to international law began
to mount in several key walks of political life. Economic relations was one.
By the end of the twentieth and beginning of the twenty-first centuries, it
was apparent that there was significant opposition to economic globaliza-
tion. In 1999, when the states of the WTO met in Seattle for the launching of
a new round of trade negotiations, the opposition was in the streets, in force.
The rioting that ensued led to the chaotic and embarrassing breakdown of
the conference.
In several other areas, developments in international law have sparked
opposition to international law. Three in particular may be noted. One is in
the area of criminal law, where the concept of “universal jurisdiction” has
empowered state prosecutors to assume the role of global law enforcers. Sec-
ond is the employment of armed force by states in the cause of human
rights. The third area of concern has been the activities of international
criminal courts. A brief exploration of each of these is in order.
Universal Jurisdiction
The basic idea behind the concept of universal jurisdiction is simple: that
any state in the world is entitled to prosecute persons who are suspected of
having committed certain international offenses—without any regard to the
nationality of either the suspect or of the victims, or to the place where the
acts occurred. Universal jurisdiction is therefore, potentially, a very power-
ful weapon. It is intended to be. Its purpose is to maximize the scope for the
punishment of especially nefarious criminals, by, in effect, licensing all
states in the world to act as enforcement agents for international law.
One important point about universal jurisdiction should be carefully
noted. That is, that the prosecution in question takes place in the national
court of the state that is acting, under that state’s national law. The content of
that national law, however, derives from international law. Universal juris-
diction therefore does not involve trial before an international tribunal, in
the manner of the Nuremberg or Tokyo proceedings. Instead, it should be
seen as a substitute for such trials, implemented at the national, rather than
the international, level.
Universal jurisdiction has deep historical roots. The core idea was articu-
lated by Cicero in the first century b.c., when he spoke of a pirate as “a com-
mon foe” of the world at large. An immediate implication was that there is
no obligation to adhere to agreements with such rogues (ransom agree-
ments, for example, need not be honored). But another consequence could
be that anyone (or at least any established government) is allowed to take
action against pirates on the high seas. In Cicero’s own time, the famous
general Pompey did precisely that, mounting a successful military expedi-
tion against a pirate community based in Cilicia (in present-day southern
Turkey) in 67– 66 bc.
In the sixteenth century, Gentili pronounced pirates to be “common en-
emies” of humanity in general. As “scorners of the law of nations,” he main-
tained, “[t]hey ought to be crushed by all men.” From these sentiments,
there grew to be a general acceptance that persons accused of piracy could
be prosecuted in the courts of any state, regardless of the nationality of ei-
ther the alleged pirates or their victims. Vattel was one of the earliest to hold
explicitly that criminal proceedings in national courts could be brought
against these scoundrels.
No significant expansion in universal jurisdiction occurred until after
World War II, when the idea was incorporated into the Geneva Conventions
of 1949. In cases of suspected “grave breaches” of specified rules, states parties
to the conventions are actually required to institute prosecutions—if neces-
sary, invoking universal jurisdiction in order to do so. This marked the first
occasion in history in which exercise of universal jurisdiction became man-
datory instead of merely optional.
On the whole, universal jurisdiction was long regarded as being of only
marginal importance in practice, since it applied to so small a number of
offenses—only piracy and grave war crimes. Over the years, though, the list
began to grow, with concern over terrorist acts providing an important im-
petus. A major first step was a convention against aerial hijacking con-
cluded in 1970. This effectively authorized states to deploy universal juris-
diction against suspected hijackers. A number of similar authorizations
followed in terrorism-related areas, such as placing bombs on airplanes, hos-
tage taking, maritime terrorism, and terrorist bombings.
Universal jurisdiction also made a notable appearance in the human-

rights field in 1984, when it was included in the Convention against Tor-
ture. This was especially significant, as that convention was directed spe-
cifically against torture by government officials—placing those officials at
risk of prosecution in foreign courts. In addition, it was widely agreed that
the two major international offenses of genocide and crimes against human-
ity should qualify for universal jurisdiction. This was endorsed by the Euro-
pean Court of Human Rights in 2007, regarding genocide.
Without too much imagination, universal jurisdiction could be argued to
apply to crimes against the peace as well (or aggression, in the later termi-
nology). Perhaps it could be taken further yet and applied to environment-
related crimes, race and sex discrimination, colonialism, and so forth. Ad-
vocacy groups of many stripes could press for the application of universal
jurisdiction in the ser vice of their favored causes. Not surprisingly, misgiv-
ings began to grow that matters could get out of hand. States all over the
world could appoint themselves as agents for the international community
and then proceed to place persons on trial for an ever-expanding list of al-
leged acts, without any need for a material connection to the prosecuting
state. But it was only around the 1990s that these dreams—or nightmares—
began to come true.
The leading role was taken by Belgium. In 1993, it enacted legislation giv-
ing its courts universal jurisdiction to hear cases of grave breaches of the
Geneva Conventions. In 1999, it added genocide and crimes against human-
ity. On the basis of this law, several proceedings were undertaken in Belgian
courts, in 2001–4, relating to the Rwandan genocide of 1994. In addition,
the Belgian authorities issued an arrest warrant for the foreign minister of
the Congo in 2000, accusing him of committing various crimes against hu-
manity during the ferocious civil wars in that beleaguered country. On this
occasion, however, the Congo government reacted by fi ling suit against Bel-
gium in the World Court. One of its assertions was that international law
did not allow the exercise of universal jurisdiction in cases of this kind.
In the event, the Congo government declined to press the universal-
jurisdiction issue, so the Court did not rule on it one way or the other in its
Arrest Warrant judgment of 2002. But one of the judges, Gilbert Guillaume
from France, gave his views on the subject—and agreed with the Congo’s
assertion. Piracy, in his opinion, is the only true case to which universal
jurisdiction is applicable. Extending the principle to other crimes, he
contended, would “risk creating total judicial chaos. It would . . . encourage

the arbitrary for the benefit of the powerful, purportedly acting as an agent
for an ill-defined ‘international community.’. . . [S]uch a development
would represent not an advance in the law but a step backward.”
The Arrest Warrant case had the effect of stimulating other African gov-
ernments to lend their support to the Congo’s opposition to universal juris-
diction—or at least to abuses of it. In 2008, the African Union (AU), the
principal organization of African countries, condemned “the abuse of the
principle of universal jurisdiction by judges from some non-African coun-
tries against African leaders,” characterizing it as “a clear violation of the
sovereignty and territorial integrity” of African states. It urged its mem-
ber countries to refuse to execute arrest warrants issued on this basis.
This spirited opposition had at least some effect. A committee of six inde-
pendent experts was assembled by the Council of Europe (the European
counterpart of the AU) to look into these objections. Among its members
were the Italian lawyer, judge, and scholar Antonio Cassese, who served as a
judge on the Yugoslavia Crimes Tribunal; the Algerian Mohammed Bed-
jaoui, a former World Court judge; and Chaloka Beyani, a prominent Zam-
bian lawyer. It reported its conclusions in 2009.
This expert group did not follow Judge Guillaume in altogether denying
the applicability of universal jurisdiction to cases of serious human-rights
violations. But it did conclude, rather delicately, that states which applied
universal jurisdiction “should bear in mind the need to avoid impairing
friendly international relations.” Such states should also “consider refraining
from taking steps that might publicly and unduly expose the suspects,
thereby discrediting and stigmatizing them” and possibly prejudicing the
fundamental right to a presumption of innocence. The group also expressed
the view that states in whose territories the crimes were allegedly committed
should have “priority” over nonterritorial states. And it recommended that,
when accused persons were government office-holders, states seeking to
prosecute should refrain from issuing arrest warrants. They should instead
issue only a “summons to appear,” to enable the suspect to present exculpa-
tory evidence on his behalf.
Opposition to universal jurisdiction was not confi ned to Africa. No less a
luminary than American ex-Secretary of State Henry Kissinger added his
voice to the concern over universal jurisdiction. He complained that the con-
cept “has not been subjected to systematic debate, partly because of the
intimidating passion of its advocates.” He warned that “[t]he world should

think carefully about the implications of a procedure by which a single
judge anywhere is able, essentially at his personal discretion, to assert juris-
diction over a citizen of another state for alleged crimes committed entirely
in that other state.” The result, he lamented, is a risk of “substituting the
tyranny of judges for that of governments.”
Kissinger’s misgivings about universal jurisdiction were shared by his
own government. Fearing that some of its officials might be prosecuted, the
American government made it clear that, unless Belgium altered its legisla-
tion, NATO headquarters would be removed from the country. The Belgian
government duly made two important changes, in 2003, to its universal ju-
risdiction legislation: first, providing that prosecutions could be instituted
only at the request of the government’s federal prosecutor; and second, re-
moving the right to bring civil actions for damages in conjunction with
criminal prosecutions.
In its ruling in the Arrest Warrant case in 2002, the World Court did im-
pose one important barrier against the exercise of universal jurisdiction:
disallowing its use against incumbent government officials such as diplo-
mats, heads of state, and foreign ministers. But that still left former officials
vulnerable once they left office. This was dramatically illustrated in 2000,
when British courts held that ex-President Augusto Pinochet of Chile could
be extradited to Spain to face accusations of torture committed during his
tenure in office. In Spain, investigations were made in 2008–9 into the
conduct of the former leader of China, Jiang Zemin, regarding alleged re-
pressive actions in Tibet (although these were discontinued after a change in
legislation). In 2009, a British court issued a warrant for the arrest of a
former foreign minister of Israel, for the alleged commission of war crimes
in the course of armed conflict in Gaza. The ex-minister carefully refrained
from entering British territory, so the warrant was then withdrawn. In
light of the principle of universal jurisdiction, travel plans for former state
officials were in danger of becoming very complicated.
Humanitarian Intervention
Another form that self-appointed enforcement of international law took was
the more robust one of armed force in the cause of what became commonly
known as humanitarian intervention. This was a right—or alleged right—of

states to take armed action on their own initiative to protect foreign nation-
als from serious oppression by their governments. It resembles universal
jurisdiction, in that international law provides the content of the law—while
national governments supply the enforcement muscle. International law
supplies, as it were, the soft ware, and state governments the hardware. As in
the case of universal jurisdiction, no material connection between the inter-
vening state and the persons being rescued is thought necessary.
It has been observed that various figures in the solidarist camp had long
supported the existence of such a right. Solidarist writers were far from
united on the subject, though. Thomas Franck, for example, consistently
with his general consensus outlook, strongly contested the legality of hu-
manitarian intervention. Mainstream positivists were more united on the
question—in opposition. Given their scrupulous respect for the principle
of nonintervention, positivists might readily enough concede a moral case
for humanitarian intervention, but not a legal one.
After 1945, there was additional legal support for the case against the le-
gality of humanitarian intervention, in the form of the UN Charter’s general
ban on the use of armed force. But there was also, at least arguably, greater
support in its favor as well, in the form of a generally higher concern for hu-
man rights. It was an excellent illustration of a painful conflict between
values—support for oppressed peoples against vicious rulers versus the pro-
motion of world peace.
The lawfulness (or otherwise) of humanitarian intervention has been vig-
orously debated in academic circles for many years. It is probably safe to say
that it is the single most contested issue in the whole of international law. In
general, though, governments have been reluctant to invoke it as a justifica-
tion for their actions. When India intervened in the Pakistan civil war of
1970–71, for example, its government refrained from giving humanitarian
intervention as a defense for its action. The same was true in 1979, when the
government of Tanzania used armed force to drive the tyrannical regime of
Idi Amin from power in Uganda. There was, accordingly, a certain feeling
that, while humanitarian intervention might be a fascinating intellectual
conundrum, it was not a real presence on the world stage.
That complacent attitude changed abruptly in 1999, when humanitarian
intervention was explicitly invoked in the context of a crisis in Serbia. It
arose out of repressive acts by the Serbian government in the province of

Kosovo, which was largely inhabited by ethnic Albanians. An escalation of
the repression in 1998–99 brought a reaction from Western governments,
which attempted to broker a settlement. When that proved fruitless, and the
atrocities continued, the NATO states embarked on an aerial bombing cam-
paign to compel the Serbian government to stop its repressive actions and to
accord the province a high degree of autonomy. This NATO operation did
not have the approval of the UN Security Council (since it was clear that the
Russian government was prepared to exercise its veto to prevent it). For a
legal justification, some of the NATO governments invoked a right of hu-
manitarian intervention instead.
The Serbian government attempted to bring a legal challenge in the World
Court against the lawfulness of the NATO action. In the very midst of the
bombing, it hurriedly made a declaration of acceptance of the Court’s juris-
diction under the Optional Clause. It then immediately lodged a complaint
against the NATO states for violation of the law prohibiting the use of
armed force. Its most immediate request was for an emergency Court order
to the NATO countries to halt the bombing. The Court declined to issue the
order, on the ground that Serbia’s Optional Clause declaration granted ju-
risdiction only over disputes “arising . . . after the signature of the [Optional
Clause] Declaration.” Although some of the bombing activity did take place
after the Serbian declaration was fi led, the dispute was held by the Court to
have “arisen,” in legal terms, at the time that the bombing campaign
commenced—which was prior to the filing of the Serbian declaration.
Later, in 2004, the action was definitively dismissed by the Court, but on a
different ground: that Serbia was not a UN member state at the relevant
time, and consequently that it was not a party to the World Court’s Statute.
For that reason, the Court had no jurisdiction to hear the claim. As a re-
sult, humanitarian intervention remained a live issue into the twenty-first
century, with a judicial pronouncement on the subject still anxiously
awaited.
The Backlash against International Criminal Courts

One of the striking features of international criminal courts—as distinct
from national ones—is that they do not recognize immunities for any gov-
ernment officials, not even incumbent ones. Even the mightiest are there-
fore potentially within reach of international prosecution. This represents
one of the greatest victories for human-rights advocates in their campaign
against the impunity of officials for repressive acts. Nor have international
criminal tribunals been slow to exercise this power. It has been noted that
the first sitting head of state to be indicted by an international criminal
court was President Milošević of Serbia, in May 1999 (in the course of the
NATO bombing campaign over Kosovo). His trial in The Hague com-
menced in 2002—although it ended indecisively with his sudden death in
2006 in the course of the proceedings.
The Milošević indictment was not an isolated incident. In 2003, President
Charles Taylor of Liberia was indicted by a “hybrid” tribunal (as it was
called), specially established by the Sierra Leone government in conjunction
with the UN. Taylor was accused of facilitating various atrocities committed
during the ferocious civil strife that took place in Sierra Leone. He, like
Milošević, was apprehended only after leaving office. But once he was in
custody, his trial proceeded to completion. In 2012, he was found guilty and
sentenced to fift y years’ imprisonment (though, as of the end of that year,
the case was on appeal).
The first indictment of a sitting head of state by the International Crimi-
nal Court occurred in 2009, when an arrest warrant was issued for the presi-
dent of Sudan, Omar al-Bashir. He stood accused of crimes against human-
ity, with genocide later added to the indictment, stemming from atrocities
committed under his rulership in the Darfur region of Sudan. He greeted
the news of his indictment with lighthearted contempt. He jeered that the
indictment was not “worth the ink it is written with” and organized thou-
sands of supporters to burn an image of the Court’s prosecutor in effigy.
One of Bashir’s aides, in a slightly more measured response, dismissed the
Court as “part of the new mechanism of neo-colonialism.”
These were striking events, by any standard. At the same time, though,
opposition to the International Criminal Court was growing. The attitude of
the American government was especially striking. It declined to become a
party to the Rome Statute, largely because of opposition to the indepen-
dence of the prosecutor and to the relatively low role accorded to the UN
Security Council. In addition, it strongly objected to the fact that Ameri-
can nationals could still be tried by the Court, even with the United States
not being a party. This could occur if an American national committed an

offense in the territory of a state party (e.g., in the course of military ser vice
abroad). The U.S. government accordingly embarked on a campaign of
concluding treaties with as many states as possible, in which those states
obligated themselves not to send American nationals to the custody of the
Court.
The United States also enacted legislation in 2002 to shield its government
officials from any possible prosecution before the Court. “[S]enior officials
of the United States Government,” the Congress formally pronounced,
“should be free from the risk of prosecution by the International Criminal
Court, especially with respect to official actions taken by them to protect the
national interests of the United States.” Invoking “a fundamental principle
of international law that a treaty is binding upon its parties only,” the Con-
gress pronounced that the United States “will not recognize the jurisdiction
of the International Criminal Court over United States nationals.” It im-
posed a statutory bar against cooperation with the Court by American offi-
cials. More remarkably, it gave the president the authority “to use all means
necessary and appropriate”—words eerily close to the standard diplomatic
parlance for armed force—to effectuate the release of any American armed
forces personnel or government employees held in the Court’s custody.
There was a backlash against the Court among African countries, too. For
one thing, there was unhappiness that all of the Court’s initiatives in its first
ten years related to Africa. In addition, fears began to grow that criminal
prosecutions might interfere with peace negotiations. These worries were
most acute with regard to civil strife in Uganda. In 2005, the Court issued
arrest warrants against five leaders of an insurgency in the northern part of
the country. Concern began to be voiced that the criminal charges were in-
terfering with the larger and more important priority of bringing peace to
the strife-torn region. Among those contending that the indictments had
undermined the negotiations was the Ugandan government official in
charge of peace negotiations with the insurgents. It was pointed out that the
Ugandan authorities were now unable to offer safe-conduct guarantees to
the indicted leaders for the holding of peace negotiations. Nor could it cred-
ibly promise an amnesty to insurgents in exchange for an end to the strife.
The government could, of course, promise that it would not take action, but
it was not able to prevent the International Criminal Court from acting.
Similar objections were voiced by the Roman Catholic archbishop of the

area, who contended that peace negotiators would now be regarded by the
insurgents as agents of the International Criminal Court. Worries were ex-
pressed that there would be fewer defections from the insurgent ranks, as
members feared that future indictments might be brought against them.
These various misgivings were reported to have a strong hold in the areas of
Uganda that had suffered most seriously at the hands of the insurgents.
Similar considerations were evident in the Congo, where a leader of an
insurgent force was indicted by the International Criminal Court. The per-
son in question, however, far from being arrested, was made a general in the
Congolese army, in exchange for a promise to integrate his followers into the
national armed forces. The Congo government pointedly declined to arrest
him, on the ground that his presence was needed to maintain peace within
the Congolese military.
There were misgivings, too, about the indictment of President Bashir of
Sudan. It was recalled that Milošević was arrested and brought before the
Yugoslavia Tribunal only after he had been toppled from power. Concern
was expressed that Bashir, and those like him, once indicted, had a strong
incentive to cling to power for the longest possible time—with the possible
effect of increasing the amount of suffering and repression inflicted on those
under their rule.
It became apparent that there was considerable support for Bashir’s plight
on the part of other African leaders. The African Union requested the UN
Security Council to postpone action on the case. When it failed to do so, the
union responded by openly taking a collective stand in Bashir’s favor. In
2009, the Assembly of the AU expressly resolved that “the AU Member
States shall not cooperate [in] the arrest and surrender of President Omar El
Bashir.”
Bashir certainly had little trouble traveling to various African countries
for conferences or meetings with fellow heads of state. In 2010, he visited
Chad and Kenya and, in the following year, Djibouti—all of which were par-
ties to the International Criminal Court and consequently under a legal
obligation to arrest the fugitive and dispatch him to The Hague. None of
these governments took action against him. The Court responded by for-
mally notifying the UN Security Council, and the other state parties to the
Court’s statute, of these visits. That brought no response. “I have not felt
[any] restrictions of movement,” Bashir cheerfully confirmed in an inter-

view with a Western magazine. In December 2011, the judges at the Inter-
national Criminal Court became slightly bolder, issuing formal findings of
noncooperation against Chad and Malawi—that is, of breach of the Rome
Statute—for failing to arrest Bashir on visits to those countries, and notify-
ing the UN Security Council of these defaults. In 2013, a second finding
was issued against Chad in the wake another visit by Bashir. Still, the
council took no action. The government of Malawi responded by threaten-
ing to withdraw from the International Criminal Court.
The AU policy of noncooperation with the International Criminal Court
resurfaced in 2011, after Colonel Muammar Qaddafi, the leader of Libya,
was indicted for crimes against humanity committed while attempting to
suppress an insurgency. The AU Assembly stated that the indictment “seri-
ously complicates the efforts aimed at finding a negotiated political solution
to the crisis in Libya.” It then resolved that member states not cooperate in
the execution of the warrant. This matter lost its relevance, however, with
Qaddafi’s death in the course of the uprising.
Inching toward a Future

These various developments of the early twenty-first century provided fur-
ther evidence—as if it were needed—that the efficacy of international law is
not something that can be taken for granted. It never has been. Throughout
history, international law has been critically dependent on a general willing-
ness of governments to abide by it. This willingness has been explained (as
has been seen) in a wide variety of ways—as a command of natural law, as
international legislation by way of customary practice, as tacit or explicit
agreement, as a consequence of a common juridical conscience, as a func-
tion of self-restraint and due regard for the rights of others, as rational self-
interest on the part of actors, as a fear of sanctions that offended parties
might inflict, and doubtless many more besides. To some extent, interna-
tional law does not differ so much from national law on this point. A na-
tional legal system, too, will be ineffective if it does not have the support of
the population that it governs. Within nations, though, a general consensus
can generally be articulated more clearly than on the global scene, and a
dense network of institutional machinery—from police forces to courts, to
schools and social work agencies—is constantly at work to instill an ethic of

obedience.
International law, lacking this elaborate institutional network, is neces-
sarily more dependent on voluntary, uncoerced cooperation by its subjects.
One way to achieve this is by mobilizing populations within the various
states in the cause of a global rule of law. Eagleton regretted, in the 1940s,
that this had not yet taken place. A half century later, it would be difficult to
say whether things had changed significantly. International law remained
heavily reliant on the good will of the governments that are subject to it.
Whether this is a healthy state of affairs has been, and continues to be, the
subject of vigorous debate.
One of the more remarkable facts of world history, however, is how well
this precarious mechanism of largely voluntary compliance actually works
in practice. It is no small challenge to explain satisfactorily just how this
could be so. The biochemistry of oxytocin might provide some clues here.
But our own exploration has been in a rather different direction. It has in-
volved looking at the concrete challenges that have arisen in the world of
interstate relations, and at the various schools of thought that arose to make
sense out of them.
Those schools of thought have been remarkably stable, at least in general
outline, since the late nineteenth century. Perhaps that is no bad thing. It
may be a healthy sign that international lawyers have become better at doing
things than at thinking thoughts, better at constructing institutions on the
ground than speculative systems in the libraries (if not, indeed, in the clouds).
Francis Bacon’s spiders may be less in evidence than formerly—for better or
worse—but his bees and ants are busier than ever. In the early twenty-first
century, there was every indication that much remained for them to do.
Conclusion
t would be pleasing to report, by way of rapid summation, that the his-

I tory of international law has been a steady forward march, a progressive
colonization of hitherto barbaric and anarchic lands by valiant pilgrims of
the Rule of Law, shining ever brighter light into the hitherto dark corners of
international practices. Sadly, that is a difficult case to make. It may even be
wondered whether, in fundamental conceptual terms, there has been any
advance at all since the most ancient days of which we have records. It was
observed that so-called international law in those earliest times consisted of
nothing more than an aggregation of practices devised by states to bring a
modest degree of predictability to an essentially anarchic world. Some will
harbor uneasy suspicions that international law in the early twenty-first
century could be described, all too accurately, in just those terms.
Quantitative advances can certainly be conceded. States interact with one
another far more frequently in modern times than they did many centuries
ago. The expansion of the UN Treaty Series (over twenty-five hundred vol-
umes and counting) marches inexorably onward. In some respects, interna-
tional law may be seen as one of humanity’s greatest monuments to the su-
periority of practice to theory. Laws are made, even in very large volume,
and (often) obeyed. But there remains a surprising degree of mystery and
disagreement as to the nature of the process involved—including its pur-
pose, if any.
If there is any lesson to be drawn from our juridical voyage, it is that there
cannot be said to be any such thing as a history of international law as a
single unitary thing. The reason is that conceptions of what international
law is have changed so much over time. To some, international law is a
482 Conclusion
purely utilitarian set of practices agreed among states, and therefore reduc-
ible ultimately to contractual arrangements. Some believe international law
to be a set of moral prescriptions, altogether distinct from actual conduct—so
that the challenge of lawyers is to bring conduct into line with the rules to the
greatest extent possible. Within this group, some see international law as a
systematic and comprehensive system. Others see it as a menu of specific
rules, with gaps remaining where no rules have been made. A rival vision
holds international law to be fundamentally descriptive—that is, as a distil-
lation or summation of the general practices of states. Others believe inter-
national law to be descriptive of the features of a particular social system as
such. Some insist that international law is, more than anything else, about
human welfare, so that human rights, good governance, and economic de-
velopment lie at its heart. Some would enlist international law as a guardian
of diversity and pluralism. Others would have it as a homogenizing agent,
bringing universal standards to bear across the world.
In the course of our journey, we have seen all of these, and more. Our
story has been less the stately progress of a monolithic “thing” called inter-
national law, and more an account of how these various competing visions
have moved onto, and off of, center stage, come into and out of focus (or
fashion), and jostled and manuevered to gain the advantage over rivals. At
its very broadest, international law could be seen as a perpetual dialogue
between two competing mentalities. They could be characterized in many
different ways—as idealistic and pragmatic, for example, or as maximalist
and minimalist. But the difference is between those who believe that inter-
national law is best seen as a dispute-settlement system, resolving conflicts
between independent and heterogeneous agents, as opposed to those who
see international law as a vehicle for the advance of civilization, enlighten-
ment, human dignity, and so on. Where the one group hears the smack of
the gavel, the other hears the blast of the trumpet.
In certain respects, our history might be seen as a sort of theater—
complete with constant changes of cast and plot lines. But if so, then we
must acknowledge the playwright to be singularly adept at concealing his or
her overall story line. Our history, sadly, cannot claim to be a script for the
future. But it is hoped that it enables its readers to watch—and even to par-
ticipate in—the drama with a greater sense of awareness of what is happen-
ing at any given time. Our ability to recognize the players, even when they
Conclusion 483
are disguised or donning new costumes or brandishing new scripts, may be

enhanced. The purpose of history (or at least of this one) is not to predict the
future. To revert to a nautical metaphor, the exploration of the past cannot
enable us to predict the destination of the voyage or even the route traveled.
But it can—more loosely—improve our ability to navigate, by making us
more sensitive to landmarks, currents, or changes of atmosphere.
There are few subjects to match international law for giving fresh perspec-
tives on the events and headlines of day-to-day life. But even more
remarkable—and drastically underchronicled—has been the age-old attempt
of homo juridicus, throughout history, to bring something like a rule of law
to bear on the tumultuous hurly-burly of interstate relations. If readers are
moved to be more curious about and aware of international law than they
were before—and that includes the international lawyers themselves—then
this all-too-rapid journey through the centuries will have been a success.
Notes
Abbreviations
ABA J. American Bar Association Journal
A.C. Appeal Cases (Great Britain)
AdR Archiv des Völkerrechts
AJIL American Journal of International Law
Am. J. Philology American Journal of Philology
Am. Pol. Sci. Rev. American Political Science Review
ASIL Procs. Proceedings of the American Society of International Law
AU African Union
BFSP British and Foreign State Papers
Brooklyn J. Int’l L. Brooklyn Journal of International Law
BYBIL British Year Book of International Law
Cal. L. Rev. California Law Review
Canadian Y.B. Int’l L. Canadian Yearbook of International Law
Chicago J. Int’l L. Chicago Journal of International Law
Crim. L. F. Criminal Law Forum
C. Rob. Christopher Robinson’s Admiralty Reports (Great Britain)
CTS Consolidated Treaty Series
Digest The Digest of Justinian, 4 vols., trans. Alan Watson
(Philadelphia, PA: University of Pennsylvania Press, 1998)
Dumont Jean Dumont, Corps universel diplomatique du droit des gens,
8 vols (Amsterdam: P. Brunel et al, 1726–31)
EHR English Historical Review
EHRR European Human Rights Reports
EJIL European Journal of International Law
Eng. Hist. Rev. English History Review
Fordham Int’l L. J. Fordham International Law Journal
FRUS Foreign Relations of the United States
486 Notes
GAOR General Assembly Official Records (UN)

G.A. Res. General Assembly Resolution (UN)
Georgetown L. J. Georgetown Law Journal
German L. J. German Law Journal
Grotius Soc. Trans. Transactions of the Grotius Society
GYBIL German Yearbook of International Law
Harvard Int’l L. J. Harvard International Law Journal
Harvard L. Rev. Harvard Law Review
Hay & M. Hay and Marriott’s Admiralty Reports (Great Britain)
ICC International Criminal Court
ICJ Rep. Reports of the International Court of Justice
ICLQ International and Comparative Law Quarterly
ICTR International Criminal Tribunal for Rwanda
IDI Annuaire Yearbook of the Institut de Droit International
ILA International Law Association
ILM International Legal Materials
ILR International Law Reports
Int’l Hist. Rev. International History Review
Int’l J. Ethics International Journal of Ethics
Int’l Legal Theory International Legal Theory
Int’l L. Q. International Law Quarterly
Int’l Military Trib. International Military Tribunal
Int’l Rel. International Relations
J. Asian Stud. Journal of Asian Studies
J. Comp. Leg. and Int’l L. Journal of Comparative Legislation and International
Law
J. Ec. Hist. Journal of Economic History
JHIL Journal of the History of International Law
J. Hist. Ideas Journal of the History of Ideas
J. Latin Am. Stud. Journal of Latin American Studies
JLE Journal of Law and Economics
J. Military Ethics Journal of Military Ethics
J. Mod. Hist. Journal of Modern History
J. Theoretical Biology Journal of Theoretical Biology
L. and Cont. Prob. Law and Contemporary Problems
Leiden J. Int’l L. Leiden Journal of International Law
LN Off. J. League of Nations Official Journal
LNTS League of Nations Treaty Series
Notes 487
LQR Law Quarterly Review

Miskole J. Int’l L. Miskole Journal of International Law
MLR Modern Law Review
NAS National Academy of Sciences (United States)
Nordic J. Int’l L. Nordic Journal of International Law
NYBIL Netherlands Yearbook of International Law
N.Y. Rev. of Books New York Review of Books
NYU J Int’l L. and Pol. New York University Journal of International Law and
Politics
NYULQR New York University Law Quarterly Review
OAU Orga nization of African Unity
Osgoode Hall L. J. Osgoode Hall Law Journal
Pace Int’l L. Rev. Pace International Law Review
PCIJ Reports of the Permanent Court of International
Justice
Pol. Sci. Q. Political Science Quarterly
Procs. NAS Proceedings of the National Academy of Sciences
RdC Recueil des Cours (Hague Academy of International
Law)
RDILC Revue de Droit International et de Législation Comparé
Rev. Int’l Stud. Review of International Studies
RGDIP Revue Générale de Droit International Public
RHDFE Revue Historique de Droit Français et Étranger
RIAA Reports of International Arbitral Awards
S.C.R. Supreme Court Reports (Canada)
S.C. Res. Security Council Resolution (UN)
SLS Social and Legal Studies
Stat. Statutes at Large (United States)
TLS Times Literary Supplement
UN Doc. UN document number (official)
UNSWLJ University of New South Wales Law Journal
UNTS United Nations Treaty Series
U. Penn. L. Rev. University of Pennsylvania Law Review
U.S. United States Supreme Court Reports
Wis. Int’l L. J. Wisconsin International Law Journal
Yale J. Int’l L. Yale Journal of International Law
Yale L. J. Yale Law Journal
YB ILC Year Book of the International Law Commission (UN)
488 Notes to Pages 1–12
Introduction
1. “George Washington’s Library Book Returned 221 Years Late,” Reuters, May 20,
2010, www.reuters.com/article/2010/05/20/us-book-library-washington-idUSTRE64
J1ZV20100520.
2. Readers are fortunate, though, in being able to turn to Linda S. Frey and Marsha
L. Frey, The History of Diplomatic Immunity (Columbus, OH: Ohio State University
Press, 1999), for an excellent general history of that subject.
3. On the history of international law regarding war, see Stephen C. Neff, War and the
Law of Nations: A General History (Cambridge: Cambridge University Press, 2005).
Part I. Law and Morality Abroad (to ca. ad 1550)

Epigraph: Aristotle, Rhetoric (trans. by W. Rhys Roberts), in The Basic Works of Aris-
totle, ed. Richard McKeon, 1317–1451 (New York: Random House, 1941), 1370.
1. Doing Justice to Others

1. Livy (Titus Livius), The Early History of Rome, trans. Aubrey de Sélincourt (Har-
mondsworth: Penguin, 1960 [ca. 24 bc]), 288.
2. Arrian, The Campaigns of Alexander, trans. Aubrey de Sélincourt (Harmond-
sworth: Penguin, 1971 [ca. ad 150]), 127–28.
3. See, for example, Laurence R. Tancredi, Hardwired Behavior: What Neuroscience
Reveals about Morality (Cambridge: Cambridge University Press, 2005), 77–81. On
the asserted universality of ideas of sacredness, see Marcus Eliade, Patterns in Com-
parative Religion, trans. Rosemary Sheed (Cleveland, OH: Meridian, 1958).
4. Genesis 11:1–9.
5. Arthur Keith, A New Theory of Human Evolution (London: Watts, 1948), 6–7.
6. Herbert Spencer, The Principles of Ethics, vol. 1 (London: Williams and Norgate,
1892), 134–37.
7. Plutarch, Life of Aristeides, trans. David Sansone (Warminster: Aris and Phillips,
1989 [ca. ad 75]), 83.
8. Plato, The Republic, ed. G. R. F. Ferrari; trans. Tom Griffith (Cambridge: Cam-
bridge University Press, 2000 [ca. 380 bc]), 59.
9. See, for example, Helen Bernhard, Urs Fischbacher, and Ernst Fehr, “Parochial
Altruism in Humans,” 442 Nature 912–15 (2006).
10. Konrad Lorenz, On Aggression, trans. Marjorie Latzke (London: Methuen,
1966), 186.
11. Edward O. Wilson, The Social Conquest of Earth (New York: W. W. Norton,
2012), 244.
12. Ibid., 244– 45.
13. Ibid., 61.
Notes to Pages 12–17 489
14. See, most famously, W. D. Hamilton, “The Genetical Evolution of Social Behav-
iour,” 7 J. Theoretical Biology 1–32 (1964). For a popu lar presentation of the thesis, see
Richard Dawkins, The Selfish Gene (Oxford: Oxford University Press, 1976), 95–116.
15. Michael Kosfeld, Markus Heinrichs, Paul J. Zak, and Ernst Fehr, “Oxytocin In-
creases Trust in Humans,” 435 Nature 673–76 (2005).
16. Carsten K. W. De Dreu, Lindred L. Greer, Gerben A. Van Kleef, Shaul Shalvi,
and Michel J. J. Handgraaf, “Oxytocin Promotes Human Ethnocentrism,” 108 Procs.
NAS 1262– 66 (2011), 1265. See also Carsten K. W. De Dreu et al., “The Neuropeptide
Oxytocin Regulates Parochial Altruism in Intergroup Conflict,” 328 Science 1408–11
(2010).
17. Marcus Niebuhr Tod, International Arbitration amongst the Greeks (Oxford:
Clarendon Press, 1913), 170–71.
18. Adam Watson, The Evolution of International Society (London: Routledge,
1992), 27.
19. Ibid.
20. Ibid., 147–54.
21. Pliny, Natural History, trans. H. Rackham, vol. 2 (Cambridge, MA: Harvard
University Press, 1942 [ca. ad 77]), 643.
22. Amanda H. Podany, Brotherhood of Kings: How International Relations Shaped
the Ancient Near East (Oxford: Oxford University Press, 2010), 29–32.
23. J. M. Munn-Rankin, “Diplomacy in Western Asia in the Early Second Millen-
nium b.c.,” 18 Iraq 68–110 (1956), 92–94.
24. Ibid., 72.
25. Peter Karavites, Promise-Giving and Treaty-Making: Homer and the Near East
(Leiden: E. J. Brill, 1992), 179–81.
26. David J. Bederman, International Law in Antiquity (Cambridge: Cambridge
University Press, 2001), 277.
27. Ibid., 99, 104–7.
28. Karavites, Promise-Giving, 188–92.
29. On the dating of the Artasastra, see Mark McClish, “Is the Artasastra a Mau-
ryan Document?” in Patrick Olivelle, Janice Leoshko, and Himanshu Prabhan Ray,
eds., Reimagining Asoka: Memory and History, 280–309 (Oxford: Oxford University
Press, 2012).
30. Kautilya, Artasastra, 6th ed., trans. R. Shamasanstry (Mysore: Mysore Printing
and Publishing, 1960 [ca. third century bc]), 367– 68.
31. Ibid., 294.
32. Ibid., 30.
33. Ibid., 420.
34. Apastamba 2.10.11, in Patrick Olivelle, ed., Dharmasutras: The Law Codes of
Apastama, Gautama, Baudhayana, and Vasistha (Oxford: Oxford University Press,
1999), 53.
35. Gautama 10.17–18, in ibid., 94.
36. Baudhayana 1.18.10–12, in ibid., 159. On laws of warfare in ancient India, see
generally V. R. Ramachandra Dikshitar, War in Ancient India (Madras: Macmillan,
1948), 41–92.
37. C. P. Fitzgerald, The Chinese View of Their Place in the World (London: Oxford
38. Ibid., 5– 6.
39. Richard Lewis Walker, The Multi-State System of Ancient China (Hamden, CT:
Shoe String Press, 1953), 79.
40. Fitzgerald, Chinese View, 5; and Mark Edward Lewis, “Warring States Political
History,” in Michael Loewe and Edward L. Shaughanessy, eds., The Cambridge History
of Ancient China: From the Origins of Civilization to 221 b.c., 587–650 (Cambridge:
Cambridge University Press, 1999), 633.
41. Walker, Multi-State System, 82–83.
42. Ibid., 86–87.
43. See Keishiro Iriye, “The Principles of International Law in the Light of Confucian
Doctrine,” 120 RdC 1–59 (1967), 34–46.
44. Elbert Duncan Thomas, Chinese Political Thought: A Study Based upon the Theo-
ries of the Principal Thinkers of the Chou Period (London: Williams and Norgate, 1928),
274. On the Ba system generally, see Cho-yun Hsu, “The Spring and Autumn Period,” in
Loewe and Shaughanessy, eds., Cambridge History, 551–66.
46. Ibid., 87–91.
47. Ibid., 84–85.
48. Ibid., 73–78.
49. John Peter Stern, The Japanese Interpretation of the “Law of Nations,” 1854–1874
(Princeton, NJ: Princeton University Press, 1979), 2.
51. Frank M. Russell, Theories of International Relations (New York: D. Appleton-
Century, 1936), 30.
52. Walker, Multi-State System, 93.
53. Russell, Theories, 28–31.
55. See Russell, Theories, 19–25.
56. Mencius, ed. Philip J. Ivanhoe; trans. Irene Bloom (New York: Columbia Uni-
versity Press, 2009 [fourth century bc]), 81, 139– 40.
57. Ibid., 43– 44.
58. Ibid., 156.
59. Thomas, Chinese Political Thought, 253.
60. Mencius, 77.
61. Ibid., 53–55.
62. Benjamin Schwartz, The World of Thought in Ancient China (Cambridge, MA:
Harvard University Press, 1985), 157–58.
63. Mozi, Basic Writings, trans. Burton Watson (New York: Columbia University
Press, 2003 [ca. 450 bc]), 62– 63.
64. Schwartz, World of Thought, 161.
65. Mozi, Basic Writings, 59– 61.
66. For a good general introduction to legalism, see Han Fei Tzu, Basic Writings,
trans. Burton Watson (New York: Columbia University Press, 1964 [ca. 250 bc]), 1–15.
See also Russell, Theories, 31–34.
67. See Chapter 6.
68. On realism, see Chapter 9.
70. Ibid., 83–86.
71. Plato, The Laws, trans. Trevor J. Saunders (Harmondsworth: Penguin, 1970 [ca.
345 bc]), 499–500.
72. Ibid., 159– 62, 211–13, 499–503.
73. Aristotle, The Politics, trans. T. A. Sinclair (London: Penguin, 1962 [ca. 350 bc]), 59.
74. See Chapter 6.
75. Aristotle, Politics, 59– 61.
76. Plato, Laws, 47.
77. Aristotle, Politics, 72.
78. Herodotus, The Histories, trans. Aubrey de Sélincourt (London: Penguin, 1954
[ca. 445 bc]), 575.
79. See, for example, Isocrates, “Panathenaicus,” in Isocrates, trans. George Norlin,
vol. 1, 367–541 (London: William Heinemann, 1956), 479–81. See also Polly Low, In-
terstate Relations in Classical Greece: Morality and Power (Cambridge: Cambridge
University Press, 2007), 54– 67.
80. On proxeny, see Bederman, International Law in Antiquity, 130–34.
81. Plato, Menexenus, in The Collected Dialogues of Plato, ed. Edith Hamilton and
Huntington Cairns; trans. Benjamin Jowett, 186–99 (Princeton, NJ: Princeton Uni-
versity Press, 1961 [ca. 370 bc]), 193.
82. Plato, Republic, 171–73.
83. Thucydides, The Peloponnesian War, trans. Rex Warner (Harmondsworth: Pen-
guin, 1954 [ca. 400 bc]), 404–5.
84. On the realist school, see Chapter 9.
85. Thucydides, Peloponnesian War, 226–28.
86. Ibid., 232–33.
87. Ibid., 323–24.
88. Ibid., 323–26.
89. Livy (Titus Livius), Rome and the Mediterranean, trans. Henry Bettenson (Lon-
don: Penguin, 1976 [ca. 24 bc]), 49–50.
90. Tod, International Arbitration, 178.
91. Herodotus, Histories, 402.
92. Tod, International Arbitration, 178–80.
93. Ibid., 175.

94. Aristotle, Rhetoric, in The Basic Works of Aristotle, ed. Richard McKeon; trans. W.
Rhys Roberts, 1317–1451 (New York: Random House, 1941 [fourth century bc]), 1372.
95. Isocrates, “On the Peace,” in 2 Isocrates, trans. George Norlin (London: William
Heinemann, 1929), 1–97.
96. Ibid., 83. On Isocrates, see Low, Interstate Relations, 155– 60.
97. Digest 49.15.7.1 (Proculus).
98. See A. N. Sherwin-White, Roman Foreign Policy in the East: 168 b.c. to 1 a.d.
(Norman, OK: University of Oklahoma Press, 1983), 58–70.
99. Livy, Early History, 57.
100. Ibid., 67.
101. Ibid., 69–71.
102. Cicero, The Republic, trans. Niall Rudd (Oxford: Oxford University Press, 1998
[ca. 53 bc]), 44.
103. On the Roman fetial law, see generally Coleman Phillipson, The International
Law and Custom of Ancient Greece and Rome, vol. 2 (London: Macmillan, 1911), 315–48;
and William V. Harris, War and Imperialism in Republican Rome 327–70 b.c. (Oxford:
Clarendon Press, 1979), 166–71.
104. Polybius: The Histories, trans. W. R. Paton, vol. 6 (London: William Heine-
mann, 1927 [ca. 140 bc]), 357.
105. See Phillipson, International Law, vol. 2, 182–92; and Harris, War and Imperi-
alism, 171–75.
106. Livy, trans. Evan T. Sage, vol. 9 (Cambridge, MA: Harvard University Press,
1935 [ca. 24 bc]), 357.
107. See Cicero, On Moral Ends, ed. Julia Annas; trans. Raphel Woolf (Cambridge:
Cambridge University Press, 2001 [45 bc]), 89; and Dio’s Roman History, trans. Earnest
Cary, vol. 3 (London: William Heinemann, 1914 [ca. ad 220]), 421.
108. Dio’s Roman History, 447.
109. Plato, Menexenus, 193.
110. Aristotle, Politics, 57.
111. For a full account of this fascinating experiment, see Robert Axelrod, The
Evolution of Cooperation (New York: Basic, 1984).
112. Herodotus, Histories, 336.
113. Hattusilis III-Ramses II, Treaty of Peace and Alliance, ca. 1280–70 bc, in Wil-
helm G. Grewe, ed., Fontes Historiae Juris Gentium: Sources Relating to the History of
the Law of Nations, vol. 1 (Berlin: Walter de Gruyter, 1988), 18–23.
114. Toby Wilkinson, The Rise and Fall of Ancient Egypt: The History of a Civilisa-
tion from 3000 BC to Cleopatra (London: Bloomsbury, 2010), 337– 40; and Bederman,
International Law in Antiquity, 146–50.
115. For an account of early Buddhism, see Trevor Ling, The Buddha: Buddhist Civi-
lization in India and Ceylon (Harmondsworth: Penguin, 1973).
116. Thomas, Chinese Political Thought, 237– 40.
117. Benjamin I. Schwartz, “The Chinese Perception of World Order, Past and Pres-
ent,” in John K. Fairbank, ed., Chinese World Order: Traditional China’s Foreign Rela-
tions, 276–88 (Cambridge, MA: Harvard University Press, 1968), 279.
118. G. E. R. Lloyd, Ancient Worlds, Modern Reflections: Philosophical Perspectives
on Greek and Chinese Science and Culture (Oxford: Clarendon Press, 2004), 161; and
Yang Lien-sheng, “Historical Notes on the Chinese World Order,” in Fairbank, ed.,
Chinese World Order, 20–33, 27–28.
119. Charles Holcombe, The Genesis of East Asia 221 b.c.–a.d. 907 (Honolulu, HI:
Association for Asian Studies, 2001), 40– 41, 48–52.
120. See Kirk W. Larsen, Tradition, Treaties, and Trade: Qing Imperialism and Choson
Korea, 1850–1910 (Cambridge, MA: Harvard University Press, 2008). On the operation
of the tribute system, see Sechin Jagchid and Van Jay Symons, Peace, War, and Trade
along the Great Wall: Nomadic-Chinese Interaction through Two Millennia (Blooming-
ton: Indiana University Press, 1989), 114–40.
121. Wang Gungwu, “The Rhetoric of a Lesser Empire: Early Sung Relations with
Its Neighbors,” in Morris Rossabi, ed., China among Equals: The Middle Kingdom and
Its Neighbors, 10th–14th Centuries, 47– 65 (Berkeley, CA: University of California
Press, 1983), 58–59; and Tao Jing-shen, “Barbarians or Northerners: Northern Sung
Images of the Khitans,” in ibid., 67.
122. Herbert Franke, “Sung Embassies: Some General Observations,” in Rossabi,
ed., China among Equals, 116– 48, 117–18. For a general history of Chinese relations
with its Asian neighbors, see Jagchid and Symons, Peace, War, and Trade; and Thomas
J. Barfield, The Perilous Frontier: Nomadic Empires and China, 221 BC to AD 1757
(Oxford: Blackwell, 1989).
123. Wang Gungwu, “Rhetoric of a Lesser Empire,” 55– 62.
124. Tao Jing-shen, “Barbarians or Northerners,” 71–72.
125. Plato, Republic, 171.
126. Aristotle, Rhetoric, in Basic Works, 1359.
127. Ibid., 1370.
128. For a succinct presentation of stoic ideas of natural law, see Maryanne Cline
Horowitz, “The Stoic Synthesis of the Idea of Natural Law in Man: Four Themes,” 35 J.
Hist. Ideas 3–16 (1974).
129. See Plutarch, “On the Fortune or Virtue of Alexander,”in Moralia, trans. Frank
Cole Babbitt, 379– 487 (Cambridge, MA: Harvard University Press, 1936 [ca. ad 100]),
389– 405.
130. H. C. Baldry, The Unity of Mankind in Greek Thought (Cambridge: Cambridge
University Press, 1965), 113–27.
131. Cicero, Republic, 68– 69.
132. See Cicero, De Officiis, trans. Walter Miller (London: Heinemann, 1921 [44
bc]), 291.
133. Gaius, The Institutes, trans. Francis de Zulueta (Oxford: Clarendon Press, 1946
[ca. ad 170]), 3.
134. Phillipson, International Law, vol. 1, 70–81.

135. Cicero, Tusculan Disputations, trans. J. E. King (London: William Heinemann,
1927 [45 bc]), 37.
136. Gaius, Institutes, 3.
137. Digest 1.1.3 (Ulpian).
138. Digest 1.1.4 (Ulpian).
139. Digest 1.4 (Ulpian).
140. Digest 1.5 (Hermogenian).
2. Keeping Kings in Check

1. David Abulafia, Frederick II: A Medieval Emperor (New York: Oxford University
Press, 1988), 366–74. See also Wilhelm G. Grewe, ed., Fontes Historiae Juris Gentium:
Sources Relating to the History of the Law of Nations, vol. 1 (Berlin: Walter de Gruyter,
1988), 294–97, 585–86.
2. Abulafia, Frederick II, 375.
3. See Chapter 6.
4. Kenneth Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in
the Western Legal Tradition (Berkeley, CA: University of California Press, 1993), 197.
5. Dante Alighieri, Monarchia, ed. and trans. Prue Shaw (Cambridge: Cambridge
University Press, 1996 [ca. 1314]), 13.
6. Ibid., 24–25.
7. C. R. Cheney, “King John’s Reaction to the Interdict on England,” 31 (4th ser.)
Transactions of the Royal Historical Society 129–50 (1949).
8. John B. Morrall, Political Thought in Medieval Times, 2nd ed. (London: Hutchin-
son, 1960), 54; and Walter Ullmann, A Short History of the Papacy in the Middle Ages
(London: Methuen, 1972), 103.
9. Grewe, ed., Fontes, vol. 1, 519–20.
10. Novit Ille, in Sidney Z. Ehler and John B. Morrall, eds. and trans., Church and
State through the Centuries: A Collection of Historic Documents with Commentaries,
69–71 (New York: Biblio and Tannen, 1967).
11. Morrall, Political Thought, 84–85.
12. See I. S. Robinson, “Church and Papacy,” in J. H. Burns, ed., The Cambridge His-
tory of Medieval Political Thought c. 350–c. 1450, 252–305 (Cambridge: Cambridge
14. Ibid., 583–85.
15. Gaines Post, Studies in Medieval Legal Thought: Public Law and the State, 1100–
1322 (Princeton, NJ: Princeton University Press, 1964), 438–39.
16. Ullmann, History, 284–85.
17. J. C. Holt, Magna Carta, 2d ed. (Cambridge: Cambridge University Press, 1992),
373–75.
18. Grewe, ed., Fontes, vol. 1, 304.

19. Frank Barlow, The Feudal Kingdom of England, 5th ed. (London: Longman,
1999), 254.
20. John Eppstein, Catholic Tradition of the Law of Nations (London: Burns Oates
and Washbourne, 1935), 465.
21. For a full summation of papal arbitration activity, see ibid., 464– 69.
22. Françoise Autrand, “The Peacemakers and the State: Pontifical Diplomacy and
the Anglo-French Conflict in the Fourteenth Century,” in Philippe Contamine, ed.,
War and Competition between States, 249–77 (Oxford: Clarendon Press, 2000).
23. Post, Studies, 465.
24. Ernest Nys, Les origines du droit international (Brussels: Alfred Castaigne,
1894), 53; and Grewe, ed., Fontes, vol. 1, 523–26.
25. John of Salisbury, Policraticus: Of the Frivolities of Courtiers and the Footprints
of Philosophers, ed. and trans. Cary J. Nederman (Cambridge: Cambridge University
Press, 1990 [1159]), 69, 81, 91–92, 104–5, 125–26.
26. See Chapter 1.
27. On Aquinas’s contribution to international law, see A. de La Pradelle, Maîtres et
doctrines du droit des gens, 2d ed. (Paris: Éditions internationales, 1950), 13–32.
28. Thomas Aquinas, Summa Theologiae, in Political Writings, ed. and trans. R. W.
Dyson (Cambridge: Cambridge University Press, 2002 [ca. 1270]), 163– 65.
29. Thomas Aquinas, Summa Contra Gentiles, trans. English Dominican Fathers,
vol. 2 (London Burns, Oates and Washbourne, 1923 [ca. 1265]), 45.
30. See Chapters 4 and 5.
31. See Chapter 1.
32. Aquinas, Summa Theologiae, in Political Writings, 117–18.
33. See Chapter 4.
34. See Chapter 1.
35. Isidore of Seville, The Etymologies, ed. and trans. Stephen A. Barney, W. J. Lewis,
J. A. Beach, and Oliver Berghof (Cambridge: Cambridge University Press, 2006
[ca. 630]), 117–18.
36. Ibid.
37. Rufinus the Canonist, Summa Decretorum, Part I, Distinction 1, quoted in Oli-
ver O’Donovan and John Lockwood O’Donovan, From Irenaeus to Grotius: A Source-
book in Christian Political Thought 100–1625 (Grand Rapids, MI: Eerdmans, 1999
[1157–59]), 301–2.
38. Post, Studies, 552.
39. On this approach, see generally Otto Gierke, Political Theories of the Middle Age,
trans. Frederick William Maitland (Cambridge: Cambridge University Press, 1938
[1881]), 75–76, 80–81; Ernst Troeltsch, The Social Teaching of the Christian Churches,
trans. Olive Wyon (London: George Allen and Unwin, 1931), 150– 61; Post, Studies,
510–12, 527–35; and F. H. Hinsley, Sovereignty, 2d ed. (Cambridge: Cambridge Uni-
versity Press, 1986), 164– 67.
40. Alanus Anglicus, Commentary on Distinction 96 (of Gratian), quoted in Brian

Tierney, ed., Crisis of Church and State 1050–1300 (Englewood Cliffs, NJ: Prentice-
Hall, 1964), 124. See also Post, Studies, 464– 66; and Morrall, Political Thought, 93.
41. Aquinas, Political Writings, 163– 65.
42. Ibid., 135. On Aquinas’s view of the ius gentium, see G. Le Bras, C. Lefebvre, and
J. Rambaud, Histoire du droit et des institutions de l’Église en Occident: L’Âge classique
1140–1378: Sources et théories du droit (Paris: Sirey, 1965), 391–92; and Matthias Lutz-
Bachmann, “The Concept of the Normativity of Law: ‘Ius Gentium’ in the Writings of
Francisco Suárez and Thomas Aquinas,” in Thilo Marauhn and Heinhard Steiger,
eds., Universality and Continuity in International Law, 235– 47 (The Hague: Eleven
International, 2011), 242– 45.
43. Post, Studies, 535– 49.
44. See Chapter 4.
45. For the consensus of canon lawyers on this conclusion, see Post, Studies, 527.
46. Grewe, ed., Fontes, vol. 1, 568– 69.
47. On the participation of clerics in wars, see ibid., 186–94.
48. On causa, see Nys, Origines, 95–139; and Frederick H. Russell, The Just War in
the Middle Ages (Cambridge: Cambridge University Press, 1975), 219–22.
49. For a thorough exposition of self-defense in the narrower sense, see John of
Legnano, Tractatus de Bello, des Respresaliis et du Duello, ed. T. E. Holland; trans. J. L.
Brierly (Oxford: Oxford University Press, 1917 [ca. 1360]), 276–306.
50. See Russell, Just War, 278.
51. Stephen C. Neff, The Rights and Duties of Neutrals: A General History (Manches-
ter: Manchester University Press, 2000), 7–10.
52. See, for example, Honoré Bonet, The Tree of Battles, trans. G. W. Coopland (Liv-
erpool: Liverpool University Press, 1949 [1387]), 117–18.
54. James A. Brundage, Medieval Canon Law (London: Longman, 1995), 116–17.
55. Lauro Martines, Power and Imagination: City-States in Renaissance Italy (Har-
mondsworth: Penguin, 1979), 171–75.
56. J. P. Canning, “Law, Sovereignty and Corporation Theory, 1300–1450,” in
Burns, ed., The Cambridge History of Medieval Political Thought c. 350– c. 1450,
454–76 (Cambridge: Cambridge University Press), 469–73.
57. J. K. Hyde, Society and Politics in Medieval Italy: The Evolution of the Civil Life,
1000–1350 (London: Macmillan, 1973), 96–98.
58. Peace of Constance, in Frederic Austin Ogg, ed., A Source Book of Mediaeval
History (New York: American, 1908), 400– 02.
59. Martines, Power and Imagination, 25–28.
60. Bernard Guenée, States and Rulers in Later Medieval Europe, trans. Julet Vale
(Oxford: Basil Blackewell, 1985), 13.
61. Hinsley, Sovereignty, 81–82.
62. Angelo Piero Sereni, The Italian Conception of International Law (New York:
Columbia University Press, 1943), 58– 63.
63. Ullmann, History, 196–97.

64. Per venerabilem, September 7, 1202, in Ehler and Morrall, Church and State,
67– 69. See also Post, Studies, 481–82; and Ullmann, History, 8–9.
65. See Grewe, ed., Fontes, vol. 1, 527.
66. Ullmann, History, 197–99; Walter Ulllmann, Law and Politics in the Middle
Ages: An Introduction to the Sources of Medieval Political Ideas (London: Hodder and
Stoughton, 1975), 185–86; Walter Ullmann, “The Development of the Medieval Idea
of Sovereignty,” 64 Eng. Hist. Rev. 1–33 (1949), 25–28; and Canning, “Law, Sover-
eignty,” 465. For a thorough account of the dispute, see Pennington, The Prince and
the Law, 165–201.
67. See Martines, Power and Imagination, 171–75.
68. Ullmann, “Development,” 16–17.
69. Quoted in Richard Tuck, The Rights of War and Peace: Political Thought and
the International Order from Grotius to Kant (Oxford: Oxford University Press,
1999), 69.
70. Hyde, Society and Politics, 186–96.
71. Marsilius of Padua, The Defender of Peace: The Defensor Pacis, trans. Alan
Gewirth (New York: Columbia University Press, 1956 [1324]), 34–37.
72. Alexander Passerin D’Entrèves, The Medieval Contribution to Political Thought
(Oxford: Oxford University Press, 1939), 59– 65. See also Chapter 6.
73. Isidore of Seville, Etymologies, 119. For the text of the Rhodian Code, see Wal-
tere Ashburner, ed., The Rhodian Sea Laws: Edited from the Manuscripts (Oxford:
Clarendon Press, 1909).
74. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tra-
dition (Cambridge, MA: Harvard University Press, 1983), 340.
75. Ibid.
76. Ibid.
77. For the text, see Stanley Jados, ed., Consulate of the Sea and Related Documents
(Tuscaloosa, AL: University of Alabama Press, 1975 [ca. 11th–13th centuries]).
78. Ibid., sec. 276, 192–93.
79. See Carl J. Kulsrud, Maritime Neutrality to 1780: A History of the Main Princi-
ples Governing Neutrality and Belligerency to 1780 (Boston: Little, Brown, 1936),
17–37.
81. Emmerich de Vattel, The Law of Nations; or, The Principles of Natural Law
Applied to the Conduct and to the Affairs of the Nations and Sovereigns, trans. Charles
G. Fenwick (Washington, DC: Carnegie Institution, 1916 [1758]), 108–9.
82. François L. Ganshof, The Middle Ages: A History of International Relations,
trans. Rémy Inglis Hall (New York: Harper and Row, 1970), 310–11.
83. Grewe, ed., Fontes, vol. 1, 692–93. See also Percy Thomas Fenn Jr, “Origins of the
Theory of Territorial Waters,” 20 AJIL 465–82 (1926), 475–78.
84. Ganshof, Middle Ages, 310; and Percy E. Corbett, Law in Diplomacy (Princeton,
NJ: Princeton University Press, 1959), 116–17.
85. Peter Haggenmacher, “On the Doctrinal Origins of Ius in Bello: From Rights of
War to the Laws of War,” in Marauhn and Steiger, eds., Universality and Continuity,
335–36.
86. Russell, Just War, 281.
87. Ibid., 155–56.
88. Ibid., 186.
89. Pierini Belli, A Treatise on Military Matters and Warfare, trans. Herbert C. Nut-
ting (Oxford: Clarendon Press, 1936 [1563]), 82.
90. Norman P. Tanner, Decrees of the Ecumenical Councils, vol. 1 (London: Sheed
and Ward, 1990), 203.
91. For the text of a declaration of war by France against the Holy Roman Empire in
1528, see 4(1) Dumont 503.
92. On declarations of war, see Nys, Origines, 176–87.
93. Ludwik Ehrlich, “The Development of International Law as a Science,” 105 RdC
173–265 (1962), 188.
94. See Ernest Nys, “Honoré de Bonet et Christine de Pisan,” 14 RDILC 451–72
(1882), 452–55.
95. See ibid., 456–57.
96. Christine de Pisan, The Book of Deeds of Arms and of Chivalry, ed. Charity Can-
non Willard; trans. Sumner Willard (University Park, PA: Pennsylvania State Univer-
sity Press, 1999 [ca. 1410]), 12–13.
97. John of Legnano, Tractatus de Bello, 270.
98. On the law of ransom, see Belli, Treatise, 116–19.
99. On the economic aspects of ransoming in medieval warfare, see Bruno S. Frey,
“Prisoners and Property Rights,” 31 JLE 19– 46 (1988).
100. See Balthasar Ayala, On the Law of War and on the Duties Connected with War
and on Military Discipline, trans. John Pawley Bate (Washington, DC: Carnegie Insti-
tution of Washington, 1912 [1581]), 47.
101. See Chapter 1.
102. Ganshof, Middle Ages, 49–50.
103. Ibid., 141– 42.
104. Robert S. Lopez and Irving W. Raymond, Medieval Trade in the Mediterranean
World: Illustrative Documents Translated with Introductions and Notes (London: Ox-
ford University Press, 1955), 323–24.
105. For an example, see Grewe, ed., Fontes, vol. 1, 600– 4.
106. For the text of a letter of marque of 1306, see R. G. Marsden, Documents Relat-
ing to Law and Custom of the Sea, vol. 1 (London: Navy Records Society, 1915),
56–59.
107. John of Legnano, Tractatus, 307–31.
108. Bonet, Tree of Battles, 173–75, 179, 182, 187–88; and Christine de Pisan, Book of
Deeds, 192–96.
109. Tanner, Decrees, vol. 1, 330.
110. Ganshof, Middle Ages, 313–14.

111. Ibid., 151.
112. England-Florence, Commercial Treaty, Apr. 15, 1490, 3(2) Dumont 247; and
Burgundy-England, Treaty of Peace and Commerce, Feb. 24, 1496, ibid., 336. See Nys,
Origines, 75.
113. See Chapters 5, 6, 9, and 10 for future developments regarding reprisals.
114. R. G. Marsden, “Early Prize Jurisdiction and Prize Law in England,” 24 English
Historical Review 675–97 (1909), 675.
115. For the texts of three commissions to privateers granted by the English govern-
ment in 1400– 05, see Marsden, Documents, vol. 1, 111–15.
3. New Worlds and Their Challenges

1. On Vitoria, see J. Barthélemy, “François de Vitoria,” in A. Pillet, ed., Les fonda-
teurs du droit international, 1–36 (Paris: V. Giard and E. Brière, 1904); and A. de La
Pradelle, Maîtres et doctrines du droit des gens, 2nd ed. (Paris: Éditions internation-
ales, 1950), 33– 48.
2. Letter Vitoria to Miguel de Arcos, Nov. 8, 1534, in Francisco de Vitoria, Political
Writings, ed. Anthony Pagden and Jeremy Laurance (Cambridge: Cambridge Univer-
sity Press, 1991), 331.
3. Wilhelm G. Grewe, The Epochs of International Law, trans. Michael Byers (Ber-
lin: Walter de Gruyter, 2000), 135.
4. See, however, Anver M. Emon, Islamic Natural Law Theories (Oxford: Oxford
University Press, 2010), which identifies natural law themes in Muslim law that arose
independently of classical Greek or Roman thought.
5. Antony Black, The West and Islam: Religion and Political Thought in World Hisotry
(Oxford: Oxford University Press, 2008), 147– 48.
6. Haniff Ahamat, “The Position of Siyar on Free Trade: A Historico-Legal Analy-
sis,” 12 JHIL 307–27 (2010), 308.
7. Majid Khadduri, ed. and trans., The Islamic Law of Nations: Shāybanī’s Siyar (Bal-
timore: Johns Hopkins University Press, 1966 [ca. 805]), 41.
8. Ibid., 8–9.
9. Ibid., 23–25.
10. Ibid., 51.
11. Ibid., 25–26.
12. For a copy of this work in English, see ibid., 75–292.
13. On European just war doctrine, see Chapter 2.
14. Quran, sura 48: 29.
15. Quran, sura 4: 101.
16. Quran, sura 5: 51, 57.
17. On Christian-Muslim relations generally, see Hugh Goddard, A History of
Christian-Muslim Relations (Edinburgh: Edinburgh University Press, 2000).
18. See John Kelsay, “Al-Shaybani and the Islamic Law of War,” 2 J. Military Ethics
63–75 (2003), 69–70.
19. Efraim Karsh, Islamic Imperialism: A History (New Haven, CT: Yale University
Press, 2006), 67– 69.
20. Concerning the Truce of Hudaybiyya, see W. Montgomery Watt, Muhammad:
Prophet and Statesman (London: Oxford University Press, 1961), 182–88. For the allu-
sion to the event in the Quran, see sura 48: 10.
21. Bernard Lewis, The Muslim Discovery of Europe (New York: W. W. Norton,
1982), 62.
22. Khadduri, ed., Islamic Law of Nations, 12–13.
23. Lewis, Muslim Discovery, 61.
24. Ibid., 62.
25. For Shaybani’s exposition of the law of aman, see Khadduri, ed., Islamic Law of
Nations, 158– 68.
26. Lewis, Muslim Discovery, 62– 63.
27. For Shaybani’s exposition of the law on bughat, see Khadduri, ed., Islamic Law of
Nations, 230– 46. See also Khaled Abou El Fadl, Rebellion and Violence in Islamic Law
(Cambridge: Cambridge University Press, 2001), 237– 49.
28. Wilhelm G. Grewe, ed., Fontes Historiae Juris Gentium: Sources Relating to the
History of the Law of Nations, vol. 1 (Berlin: Walter de Gruyter, 1988), 351.
29. R. W. Dyson, ed. and trans., Giles of Rome’s On Ecclesiastical Power: A Medieval
Theory of World Government (New York: Columbia University Press, 2004 [ca. 1300]),
131.
30. Grewe, ed., Fontes, vol. 1, 353.
31. Innocent IV on the Legal Status of Infidels (1243), in ibid., 348–50.
33. James Muldoon, Popes, Lawyers, and Infidels: The Church and the Non-Christian
World 1250–1550 (Liverpool: Liverpool University Press, 1970), 153. The author adds
that there would be no real point in doing this.
34. Sermon of Urban II (1095), as reported by Robert the Monk, in A. Brundage,
The Crusades: A Documentary Survey (Milwaukee, WI: Marquette University Press,
1962), 17–20.
35. See Frederick H. Russell, The Just War in the Middle Ages (Cambridge: Cam-
bridge University Press, 1975), 199–200.
36. John of Legnano, Tractatus de Bello, de Represaliis et du Duello, ed. T. E. Holland
and trans. J. L. Brierly (Oxford: Oxford University Press 1917 [ca. 1360]), 232; and Hon-
oré Bonet, The Tree of Battles of Honoré Bonet, trans. G. W. Coopland (Liverpool: Liv-
erpool University Press, 1949 [1387]), 127. See also Russell, Just War, 114–15.
38. Norman Housley, The Later Crusades, 1274–1580: From Lyons to Alcazar (Ox-
ford: Oxford University Press, 1992), 288.
39. On the northeastern crusades, see ibid., 322–75; and Eric Christianson, The
Northern Crusades (London: Penguin, 1980).
41. Muldoon, Popes, 112.
42. Housley, Later Crusades, 362– 65; and Muldoon, Popes, 118–19.
43. François L. Ganshof, The Middle Ages: A History of International Relations,
trans. Rémy Inglis Hall (New York: Harper and Row, 1970), 142.
44. Ibid., 154–55.
45. J. R. S. Phillips, The Medieval Expansion of Europe, 2nd ed. (Oxford: Clarendon
Press, 1998), 46.
46. Ganshof, Middle Ages, 143– 44.
47. Tunis-Venice, Treaty of Commerce, 1251, in Grewe, ed., Fontes, vol. 1, 370–74.
48. A. P. Thornton, Doctrines of Imperialism (New York: John Wiley and Sons,
1965), 135–36.
49. On the papal efforts to limit Christian trade with Muslims, see Eliyahu Ashtor,
Levant Trade in the Later Middle Ages (Princeton, NJ: Princeton University Press,
1983), 17– 63.
50. Robert S. Lopez and Irving W. Raymond, Medieval Trade in the Mediterranean
World: Illustrative Documents Translated with Introductions and Notes (London: Ox-
ford University Press, 1955), 333–35.
51. Thornton, Doctrines, 135.
52. Housley, Later Crusades, 37.
53. Canon Ad Liberandum, Fourth Lateran Council, in Brundage, ed., Crusades,
217.
54. Ashtor, Levant Trade, 19.
55. Ibid., 47.
56. Ieuan Griffiths, The African Inheritance (London: Routledge, 1995), 23.
57. Anthony Pagden, Peoples and Empires: Europeans and the Rest of the World,
from Antiquity to the Present (London: Phoenix Press, 2001), 19.
58. Felipe Fernández-Armesto, Before Columbus: Exploration and Colonisation
from the Mediterranean to the Atlantic, 1229–1492 (London: Macmillan, 1987),
232–33.
59. Ibid., 212–13.
60. Ernest Nys, Les origines du droit international (Brussels: Alfred Castaigne,
1894), 370.
61. Joseph F. O’Callaghan, “Castile, Portugal, and the Canary Islands: Claims and
Counterclaims, 1344–1479,” 24 Viator 287–310 (1993), 305.
62. Romanus Pontifex, Jan. 6, 1455, in Frances G. Davenport, ed., European Treaties
Bearing on the History of the United States and Its Dependencies, vol. 1 (Washington,
DC: Carnegie Institution, 1917), 9–26.
63. Inter Caetera, Mar. 13, 1456, in ibid., 27–32.
64. Portugal-Spain, Treaty of Aloaçoves, Sep. 4, 1479, art. 8, in ibid., 33– 48; and
Grewe, ed., Fontes, vol. 1, 683–90.
66. Muldoon, Popes, 136.
67. See Inter Caetera, May 3, 1493, in Davenport, ed., European Treaties, 56– 63; and
Inter Caetera, May 4, 1493, in ibid., 71–78; and Grewe, ed., Fontes, vol. 2, 103–9.
68. Muldoon, Popes, 136–39.
69. Portugal-Spain, Treaty of Tordesillas, July 2, 1494, in Charles Gibson, ed., The
Spanish Tradition in America (New York: Harper and Row, 1968), 42–51; Daven-
port, ed., European Treaties, vol. 1, 84–100; and Grewe, ed., Fontes, vol. 2, 110–16.
70. Portugal-Spain, Treaty of May 7, 1495, in Davenport, European Treaties, vol. 1,
101– 6.
71. Portugal-Spain, Treaty of Saragossa, Apr. 22, 1529, in ibid., 185–97; and Grewe,
ed., Fontes, vol. 2, 117–34.
72. See Barry Nicholas, An Introduction to Roman Law (Oxford: Clarendon Press,
1962), 115– 40.
73. On possession ceremonies, see Lauren Benton and Benjamin Straumann, “Ac-
quiring Empire by Law: From Roman Doctrine to Early Modern European Practice,”
28 Law and History Review 1–38 (2010), 31–35.
74. Fernández-Armesto, Before Columbus, 212.
75. Lewis Hanke, The Spanish Struggle for Justice in the Conquest of America
(Philadelphia, PA: University of Pennsylvania Press, 1949), 25–26.
76. J. H. Parry, The Spanish Theory of Empire in the Sixteenth Century (Cambridge:
Cambridge University Press, 1940), 38.
77. D. A. Brading, The First America: The Spanish Monarchy, Creole Patriots, and
the Liberal State 1492–1867 (Cambridge: Cambridge University Press, 1991), 81.
78. See Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New
World, 1492–1640 (Cambridge: Cambridge University Press, 1995), 73–94.
79. Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain
and France c. 1500–c. 1800 (New Haven, CT: Yale University Press, 1995), 91.
80. Stephen Greenblatt, Marvelous Possessions: The Wonder of the New World (Ox-
ford: Clarendon Press, 1991), 98.
81. Gibson, ed., Spanish Tradition, 58– 60.
82. Hanke, Spanish Struggle, 35.
83. Seed, Ceremonies, 98–99.
84. Brading, First America, 30–31. For the view that the requerimiento was not em-
ployed on that occasion, see Seed, Ceremonies, 98–99.
85. J. H. Parry, The Spanish Seaborne Empire (Harmondsworth: Penguin, 1966), 124.
86. Muldoon, Popes, 140– 43.
87. Hanke, Spanish Struggle, 111–12.
88. Richard Tuck, The Rights of War and Peace: Political Thought and the Interna-
tional Order from Grotius to Kant (Oxford: Oxford University Press, 1999), 72–73.
89. Vitoria, “On the Power of the Church (I),” in Political Writings, 83–86.
90. In support of this position, see Francisco Suárez, The Three Theological Virtues,
in Selections from Three Works of Franicsco Suárez, trans. Gwladys L. Williams, Ammi
Brown, and John Waldron (Oxford: Clarendon Press, 1944 [1621]), 746.
91. Brading, First America, 131.
92. Muldoon, Americas, 96–109.
94. Ibid., 112.
95. Vitoria, “On the American Indians,” in Political Writings, 243– 46.
96. Ibid., 251–77.
97. Ibid., 269–71.
98. Ibid., 277–91.
99. Ibid., 289.
100. Vitoria, “On Dietary Laws, and Self-Restraint,” in Political Writings, 226–27.
101. Vitoria, “On the American Indians,” 291–92.
102. See Chapter 1.
104. See ibid., 16–19.
105. Lewis Hanke, All Mankind Is One: A Study of the Disputation between Bar-
tolomé de las Casas and Juan Ginés de Sepúlveda in 1550 on the Intellectual and Reli-
gious Capacity of the American Indians (DeKalb, IL: Northern Illinois University
Press, 1974), 100.
106. Anthony Pagden, The Fall of Natural Man: The American Indians and the Ori-
gins of Comparative Ethnology (Cambridge: Cambridge University Press, 1982), 38.
107. Brian P. Copenhaver and Charles B. Schmitt, Renaissance Philosophy (Oxford:
Oxford University Press, 1992), 113–14.
108. Brading, First America, 80–81.
109. Paul III, Sublimis Deus Sic Dilexit, in Gibson, ed., Spanish Tradition, 104–5. See
also Hanke, All Mankind, 17–22.
112. Muldoon, Americas, 38– 65.
113. See, to this effect, Suárerz, Theological Virtues, 741– 43.
115. Ibid., 285.
116. Lewis Hanke, Spanish Struggle, 150.
117. Ibid., 17–18.
118. Juan Ginés de Sepúlveda, “Just War against Barbarians,” trans. Charles Gib-
son, in Gibson, ed., Spanish Tradition, 113–20.
119. Pagden, Peoples and Empires, 77–78.
120. Lewis Hanke, Aristotle and the American Indians: A Study in Race Prejudice in
the Modern World (London: Hollis and Carter, 1959), 28–37.
121. Ramón Hernández, “The Internationalization of Francisco de Vitoria and Do-

mingo de Soto,” 15 Fordham Int’l L. J. 1031–59 (1991), 1057.
123. Ibid., 120.
124. Ibid., 129–30.
125. Parry, Spanish Theory, 57.
126. Richard Tuck, The Rights of War and Peace: Political Thought and the Interna-
tional Order from Grotius to Kant (Oxford: Oxford University Press, 1999), 75; and
Hernández, “Internationalization,” 1051–52.
127. Parry, Spanish Theory, 14–15.
129. Grewe, ed., Fontes, vol. 1, 349. See also, to the same effect, John of Legnano,
Tractatus de Bello, 232.
130. Muldoon, Popes, 5–14.
131. Ibid., 285.
132. Hanke, Spanish Struggle, 163– 65.
133. Ibid., 165– 68.
134. Ibid., 167.
135. Pagden, Lords of All the World, 48.
136. Anthony Pagden, “Law, Colonization, Legitimation, and the European Back-
ground,” in The Cambridge History of Law in America: Early America (1580–1815), ed.
Michael Grossberg and Christopher Tomlins, 1–31 (Cambridge: Cambridge Univer-
sity Press, 2008), 22–24.
137. Hanke, Spanish Struggle, 148.
138. Muldoon, Americas, 98.
139. Richard Zouche, An Exposition of Fecial Law and Procedure, or of Law between
Nations, and Questions Concerning the Same, trans. J. L. Brierly (Washington, DC:
Carnegie Institution of Washington, 1911 [1650]), 80; and Seed, Ceremonies, 9–10.
140. Vitoria, “On the American Indians,” 264– 65.
141. Pagden, “Law, Colonization,” 19.
142. Jean-Philippe Lévy and André Castaldo, Histoire du droit civil (Paris: Dalloz), 534.
143. Emmerich de Vattel, The Law of Nations; or, The Principles of Natural Law Ap-
plied to the Conduct and to the Affairs of the Nations and Sovereigns, trans. Charles G.
Fenwick (Washington, DC: Carnegie Institution, 1916 [1758]), 37–38. See also Georg
Cavallar, Imperfect Cosmopolis: Studies in the History of International Legal Theory
and Cosmopolitan Ideas (Cardiff: University of Wales Press, 2011), 33–35; and Benton
and Straumann, “Acquiring Empire,” 25–26.
144. Pagden, “Law, Colonization,” 6–7.
145. Mark D. Walters, “Mohegan Indians v. Connecticut (1705–1773) and the Legal
Status of Aboriginal Customary Laws and Government in British North America,” 33
Osgoode Hall L. J. 785–829 (1995), 790–91.
146. Pagden, “Law, Colonization,” 24.
147. Seed, Ceremonies, 41– 68.

148. Ibid., 56–57.
149. See generally Dorothy V. Jones, License for Empire: Colonialism by Treaty in
Early America (Chicago: University of Chicago Press, 1982).
150. Walters, “Mohegan Indians v. Connecticut,” 803.
151. For a cogent explanation of this point, see Pagden, “Law, Colonization,” 8–14.
152. J. P. Canning, “Law, Sovereignty and Corporation Theory, 1300–1450,” in J. H.
Burns, ed., The Cambridge History of Medieval Political Thought c. 350–c. 1450, 454–
76 (Cambridge: Cambridge University Press, 1988), 462– 63.
153. Mónica Brito Vieira, “Mare Liberum vs. Mare Clausum: Grotius, Freitas, and
Selden’s Debate on Dominion over the Seas,” 64 J. Hist. Ideas 361–77 (2003), 376.
154. See Digest 8.4.13 (Ulpian); and Digest 43.8.3 (Celsus).
155. Philip D. Curtin, Cross-Cultural Trade in World History (Cambridge: Cam-
bridge University Press, 1984), 139– 40.
156. On Grotius, see J. Basdevant, “Hugo Grotius,” in Pillet, ed., Fondateurs, 125–
267; and La Pradelle, Maîtres et doctrines, 71–92.
157. On De Indis, see J. Basdevant, “Hugo Grotius,” 155–79.
158. Hugo Grotius, Commentary on the Law of Prize and Booty, trans. Gwladys
Williams (Oxford: Clarendon Press, 1950 [1606]), 2.
159. Ibid., 244.
160. Ibid., 234–55.
161. Fernando Vázquez should not be confused with his much younger contempo-
rary Gabriel Vázquez, a significant writer on political and legal issues in other areas.
162. See C. H. Alexandrowicz, An Introduction to the History of the Law of Nations in
the East Indies (16th, 17th and 18th Centuries) (Oxford: Oxford University Press, 1967),
42–49; and W. E. Butler, “Grotius and the Law of the Sea,” in Hedley Bull, Benedict
Kingsbury, and Adam Roberts, eds., Hugo Grotius and International Relations, 209–20
(Oxford: Clarendon Press, 1990).
163. Decree of James I, Mar. 4, 1604, in Grewe, ed., Fontes, vol. 2, 164.
164. See Alexandrowicz, Introduction, 49–57; and Vieira, “Mare Liberum.”
165. Adam Smyth, “Better Mouldy,” TLS, Dec. 24–31, 2010, 16.
166. On these aspects of Selden’s thought, see Jason P. Rosenblatt, Renaissance En-
gland’s Chief Rabbi: John Selden (Oxford: Oxford University Press, 2006).
167. See Eric G. M. Fletcher, “John Selden (Author of Mare Clausum) and His Con-
tribution to International Law,” 19 Grotius Soc. Trans. 1–12 (1933).
Part II. Reason and Its Rivals (ca. 1550–1815)

Epigraph: Hugo Grotius, On the Law of War and Peace, trans. Francis W. Kelsey
(Oxford: Oxford University Press, 1925 [1625]), 15.
1. Frederick Sherwood Dunn, The Practice and Procedure of International Confer-
ences (Baltimore, MD: Johns Hopkins University Press, 1929), 78.
2. Sweden–Holy Roman Empire, Treaty of Osnabrück, Oct. 24, 1648, 1 CTS 119;
and France–Holy Roman Empire, Treaty of Münster, Oct. 24, 1648, 1 CTS 271.
3. Innocent X, Protest against the Peace of Westphalia, Nov. 15, 1648, 6(1) Dumont
463.
4. Putting Nature and Nations Asunder

1. Michael Roberts, Gustavus Adolphus: A History of Sweden 1611–1632 (London:
Longmans, Green, 1958), 639.
2. J. P. Canning, “Law, Sovereignty and Corporation Theory, 1300–1450,” in J. H.
Burns, ed., The Cambridge History of Medieval Political Thought c. 350–c. 1450, 454–
76 (Cambridge: Cambridge University Press, 1988), 473–76.
3. John B. Morrall, Political Thought in Medieval Times, 2nd ed. (London: Hutchin-
son, 1960), 61– 62; and Alfred Verdross, “Le fondement du droit international,” 16
RdC 247–323 (1927), 311–13.
4. Quoted in Lloyd, Introduction to Jurisprudence, 3rd ed. (London: Stevens and
Sons, 1972), 177.
5. See Chapter 6.
6. On Bodin’s conception of natural law, see André Gardot, “Jean Bodin: Sa place
parmi les fondateurs du droit international,” 50 RdC 545–747 (1934), 593– 601.
7. See Vitoria, On the Law of War, in Political Writings, ed. Anthony Pagden and
Jeremy Laurance (Cambridge: Cambridge University Press, 1991), 293–327. On Vito-
ria’s reflection on the American Indians, see Chapter 3.
8. Ibid., 312–13.
9. On Mancini’s contribution to international law, see Chapter 7.
10. Balthasar Ayala, On the Law of War and on the Duties Connected with War and
on Military Discipline, trans. John Pawley Bate (Washington, DC: Carnegie Institu-
tion of Washington, 1912 [1581]), 41.
11. Ibid., 22–23.
12. See Thomas Erskine Holland, Studies in International Law (Oxford: Clarendon
Press, 1898). See also Henri Nézard, “Albericus Gentili,” in A. Pillet, ed., Les fonda-
teurs du droit international, 37–93 (Paris: V. Giard and E. Brière, 1904); A. de La Pr-
adelle, Maîtres et doctrines du droit des gens, 2nd ed. (Paris: Éditions internationales,
1950), 93–99; and Arthur Nussbaum, A Concise History of the Law of Nations, 2nd ed.
(New York: Macmillan, 1954), 94–101.
13. Alberico Gentili, On the Law of War, trans. John C. Rolfe (Oxford: Clarendon
Press, 1933 [1598]), 31–33.
14. Ibid., 33.
15. Ibid., 131–32.
16. Ayala, Law of War, iii.
17. Ibid., 169–245.
18. See Chapter 2.
19. France-Turkey, Draft Treaty of Amity and Commerce, Feb. 1536, in J. C. Hure-
witz, The Middle East and North Africa in World Politics: A Documentary Record, vol.
1, 2nd ed. (New Haven, CT: Yale University Press, 1975), 1– 6.
20. Thomas Naff, “The Ottoman Empire and Europe,” in The Expansion of Interna-
tional Society, ed. Hedley Bull and Adam Watson, 143– 69 (Oxford: Clarendon Press,
1984), 146– 47; and Norman Housley, The Later Crusades, 1274–1580: From Lyons to
Alcazar (Oxford: Oxford University Press, 1992), 132–34.
21. Naff, “Ottoman Empire,” 148.
22. Hugo Grotius, Commentary on the Law of Prize and Booty, trans. Gwladys Wil-
liams (Oxford: Clarendon Press, 1950 [1606]), 315–17.
23. See Chapter 2.
24. Quoted in Bernice Hamilton, Political Thought in Sixteenth-Century Spain: A
Study of the Political Ideas of Vitoria, De Soto, Suárez, and Molina (Oxford: Clarendon
Press, 1963), 100.
25. Vitoria, “On the American Indians,” in Political Writings, 280–81.
26. On Isidore and the dualist theory, see Chapter 2.
27. Vitoria, “On the American Indians,” 281.
28. Vitoria, “On Civil Power,” in Political Writings, 40.
29. See also Hamilton, Political Thought, 104–5; and Brian Tierney, “Vitoria and
Suárez on Ius gentium, Natural Law, and Custom,” in Amanda Perreau-Saussine and
James Bernard Murphy, eds., The Nature of Customary Law: Legal, Historical and
Philosophical Perspectives, 101–24 (Cambridge: Cambridge University Press, 2007),
110–14.
30. On Suárez, see L. Rolland, “Suárez,” in Pillet, ed., Fondateurs, 95–124; and La
Pradelle, Maîtres et doctrines, 49–70.
31. Francisco Suárez, A Treatise on Laws and God the Lawgiver, in Selections from
Three Works of Francisco Suárez, trans. Gwladys L. Williams, Ammi Brown, and John
Waldron (Oxford: Clarendon Press, 1944 [1612]), 48.
32. Ibid., 44– 45.
33. On Isidore, see Chapter 2.
34. Suárez, Treatise on Laws, 222–23.
35. Ibid., 331. On the medieval emanationist position, see Chapter 2.
36. Ibid., 47.
37. Ibid., 44– 45, 48.
38. Ibid., 326.
39. Ibid., 332.
40. Ibid., 347.
41. Ibid.
42. On the original meaning of ius gentium in Roman law, see Chapter 1.
43. Suárez, Treatise on Laws, 342.
44. Ibid., 354–56.
45. Ibid., 349.
46. Ibid., 351.

47. Ibid., 339– 40.
48. Ibid., 352–54.
49. Paul Guggenheim, “Contributions à l’histoire des sources du droit des gens,” 94
RdC 1–84 (1958), 28. See also Hamilton, Political Thought, 107–9.
50. On Grotius’s views of the ius gentium, see Peter Haggenmacher, Grotius et la
doctrine de la guerre juste (Paris: Presses universitaires de France, 1983), 358–99.
51. Ecclesiastes 9:11.
52. Hugo Grotius, War and Peace, trans. Francis W. Kelsey (Oxford: Oxford Uni-
versity Press, 1925 [1625]), 38–39. See Chapter 2 on Aquinas.
53. Ibid., 29–30, 507–8; and Hugo Grotius, Commentary on the Law of Prize and
Booty, trans. Gwladys Williams (Oxford: Clarendon Press, 1950 [1606]), 7.
54. Grotius, War and Peace, 40.
55. Ibid., 13.
56. Suárez, Treatise on Laws, 285–309. See also James Gordley, The Philosophical
Origins of Modern Contract Doctrine (Oxford: Clarendon Press, 1991), 121–25.
58. Ibid., 442.
59. Ibid., 44.
60. Ibid., 15.
61. Ibid., 15.
62. Ibid., 461.
63. Ibid., 641– 44.
64. See Chapter 6.
65. On the medieval origin and development of reprisals, see Chapter 2.
66. Grotius, War and Peace, 624–25.
67. See ibid., 634–35. See also, more explicitly, Grotius, Commentary, 26–27.
69. Ibid., 29–30.
70. Ibid., 20–21.
71. Ibid.
72. For the most detailed analysis of Grotius’s just war thought, see generally
Haggenmacher, Grotius et la doctrine.
74. Ibid., 583–84.
75. Ibid., 651–53.
76. Ibid., 663– 64, 689. See also, to the same effect, Vitoria, Law of War, 322–23.
77. George Fréderic de Martens, Précis du droit des gens moderne de l’Europe fondé
sur les traités et l’usage, 2nd French ed. (Göttingen: Dieterich, 1801), 17.
78. Roscoe Pound, “Philosophical Theory and International Law,” 1 Bibliotheca
Visseriana 71–90 (Leiden: E. J. Brill, 1923), 90.
79. See, for example, Hersch Lauterpacht, “The Grotian Tradition in International
Law,” 23 BYBIL 1–53 (1946).
80. Sovereignty over Islands (Malaysia/Singapore), 2008 ICJ Rep. 12, para. 53.
81. For an example of a later assessment of Grotius as the father of the positivist ap-
proach to international law, see Gerhart Niemeyer, “International Law and Social
Structure,” 34 AJIL 588– 600 (1940), 597– 600.
82. On the importance of Aristotelian thought in the Middle Ages, see Chapter 2.
83. Thomas Hobbes, Leviathan; or, The Matter, Form and Power of a Common-
wealth Ecclesiastical and Civil, ed. Michael Oakeshott (Oxford: Basil Blackwell, 1957
[1651]), 82.
84. Ibid., 85.
85. Ibid., 93.
86. Thomas Aquinas, Summa Theologiae, in Political Writings, ed. and trans. R. W.
Dyson (Cambridge: Cambridge University Press, 2002 [1267–74]), 117–18.
87. Hobbes, Leviathan, 112–13.
88. Thomas Hobbes, De Cive or The Citizen, ed. Sterling P. Lamprecht (New York:
Appleton-Century-Crofts, 1949 [1642]), 68.
89. See J. Kosters, Les fondements du droit des gens: Contribution à la théorie gé-
nérale du droit des gens (Leyden: E. J. Brill, 1925), 70–78; and F. H. Hinsley, Sover-
eignty, 2nd ed. (Cambridge: Cambridge University Press, 1986), 184–86.
90. There is no recent literature of note on Zouche. But see Georges Scelle, “Zouche,”
in A. Pillet, ed., Fondateurs, 269–330; Coleman Phillipson, “Richard Zouche,” in John
Macdonell and Edward Mason, eds., Great Jurists of the World, 220– 47 (London: John
Murray, 1913); and La Pradelle, Maîtres et doctrines, 101– 6.
91. On the fetial law of ancient Rome, see Chapter 1.
Carnegie Institution of Washington, 1911 [1650]), 2.
93. See Chapter 5.
94. Zouche, Exposition, 2.
95. Samuel Rachel, Dissertations on the Law of Nature and Nations, trans. John
Pawley Bate (Washington, DC: Carnegie Endowment for International Peace, 1916
[1676]), 202.
96. Ibid., 158.
97. Ibid., 209–10.
98. Ibid., 210–11.
99. Ibid., 170.
100. Ibid., 158.
101. Ibid., 223–24.
102. Ibid., 208–9.
103. Ibid., 163.
104. Johann Wolfgang Textor, Synopsis of the Law of Nations, trans. John Pawley
Bate (Washington, DC: Carnegie Institution, 1916 [1680]), 4–5.
105. See Dominque Gaurier, Histoire du droit international: Auteurs, doctrines et
développement de l’Antiquité à l’aube de la période contemporaine (Rennes: Presses
universitaires de Rennes, 2005), 229–32; and Wilhelm G. Grewe, The Epochs of Inter-
national Law, trans. Michael Byers (Berlin: Walter de Gruyter, 2000), 349–55.
106. Thomas Hobbes, De Corporo Politico, ed. J. C. A. Gaskin (Oxford: Oxford Uni-
versity Press, 1994 [1640]), 182. See also, to the same effect, ibid., 228; Hobbes, De
Cive, 158; and Hobbes, Leviathan, 342.
107. See, for example, Samuel Pufendorf, On the Law of Nature and Nations, trans.
C. H. and W. A. Oldfather (Oxford: Clarendon Press, 1934 [1672]), 229.
108. Benedict de Spinoza, A Treatise on Politics (1677), in The Political Works, ed. and
trans. A. G. Wernham, 254–445 (Oxford: Clarendon Press, 1958 [1677]), 285, 295.
109. Ibid., 295.
110. Ibid., 295–97.
111. Benedict de Spinoza, A Treatise on Religion and Politics (1670), in ibid., 139–41.
112. On Pufendorf, see P. Avril, “Pufendorf,” in Pillet, ed., Fondateurs, 331–83; and
La Pradelle, Maîtres et doctrines, 117–22.
113. Pufendorf, Nature and Nations, 226.
114. Samuel Pufendorf, Elements of Universal Jurisprudence, trans. William Abbott
Oldfather (Oxford: Clarendon Press, 1931 [1660]), 165.
115. Ibid., 166.
116. Ibid., 288–89. See also, to the same effect, Pufendorf, Nature and Nations, 1254.
117. See Chapter 6.
118. Pufendorf, Nature and Nations, 1330–31.
119. Pufendorf, Elements, 165– 66.
120. Pufendorf, Nature and Nations, 227–28.
121. Tetsuya Toyoda, Theory and Politics of the Law of Nations: Political Bias in In-
ternational Law Discourse of Seven German Court Councilors in the Seventeenth and
Eighteenth Centuries (Leiden: Martinus Nijhoff, 2011), 143– 44.
122. Jean Jacques Burlamaqui, Principles of Natural and Politic Law, 3rd ed., trans.
Thomas Nugent (London: C. Nourse, 1784 [1747]), 195–96.
123. Ibid., 198–99.
124. Thomas Rutherforth, Institutes of Natural Law, vol. 2 (Cambridge: J. Bentham,
1756), 471–72.
125. Ibid., 473.
5. Of Spiders and Bees

1. Francis Bacon, The New Organon, ed. Lisa Jardine and Michael Silverthorne
(Cambridge: Cambridge University Press, 2006 [1620]), 79.
2. See Chapter 6.
3. See Chapter 4.
4. F. H. Hinsley, Sovereignty, 2nd ed. (Cambridge: Cambridge University Press,
1986), 184–85.
5. See Chapter 6.
6. On Wolff, see Louis Olive, “Wolff,” in A. Pillet, ed., Les fondateurs du droit
international, 447–79 (Paris: V. Giard and E. Brière, 1904).
7. Lewis White Beck, Early German Philosophy: Kant and His Predecessors (Cam-
bridge, MA: Harvard University Press, 1969), 261.
8. Karl S. Guthke, The Last Frontier: Imagining Other Worlds from the Copernican
Revolution to Modern Science Fiction, trans. Helen Atkins (Ithaca, NY: Cornell Uni-
versity Press, 1990), 254–55.
9. Christian Wolff, The Law of Nations Treated According to a Scientific Method,
trans. Joseph H. Drake (Oxford: Clarendon Press, 1934 [1749]), 5– 6.
10. Ibid., 18.
11. Ibid., 292–95.
12. Ibid., 12–13.
13. On the substitution theory, see Chapter 2.
14. Wolff, Law of Nations, 18.
15. Ibid., 294.
16. Ibid.
17. Ibid., 6–7.
18. Ibid., 319.
19. Ibid., 12–15.
20. Ibid., 15–18.
21. Ibid., 16.
22. Ibid., 17.
23. Ibid., 6–7.
24. Ibid., 14.
25. On the necessary law of war, see ibid., 402–53.
26. On the voluntary law of war, see ibid., 453–59.
27. Immanuel Kant, Theory and Practice, in Political Writings, 2nd ed., ed. Hans
Reiss; trans. H. B. Nisbet, 61–92 (Cambridge: Cambridge University Press, 1991
[1793]), 91.
28. Immanuel Kant, Perpetual Peace: A Philosophical Sketch (1795), in Political
Writings, 98.
29. Ibid., 103.
30. Ibid., 127.
31. Ibid.
32. Ibid., 113.
33. Ibid.
34. Ibid., 126.
35. Ibid., 114.
36. See Chapter 6.

37. Fritz Stern, ed., Varieties of History: From Voltaire to the Present (New York:
Meridian, 19567), 406, n. 2.
38. Gottfried Wilhelm von Leibniz, “Codex Iuris Gentium (Praefatio)” (1693), in
The Political Writings of Leibniz, 2nd ed., ed. and trans. Patrick Riley, 165–76 (Cam-
bridge: Cambridge University Press, 1988).
39. Ibid., 169–70.
40. Frederic Leonard, Receuil des traitez de paix, de trève, de neutralité, de confé-
dération, d’alliance et de commerce, faits par les rois de France, avec tous les princes et
potentats de l’Europe, et autres, depuis près de trois siècles, 6 vols. (Paris, 1693).
41. Jacques Bernard and Abraham-Nicolas Amelot de La Houssaie, Recueil des traitez
de paix, de trêve, de neutralité, de suspension d’armes, de confédération, d’alliance, de
commerce, de garantie, et d’autres actes publics: comme contracts de mariage, testaments,
manifestes, declarations de guerre, & c. faits entre les empereurs, rois, républiques,
princes, & autres puissances de l’Europe, & des autres parties du monde, depuis la nais-
sance de Jesus-Christ jusqu’à présent: servant à établir les droits des princes, et de fonde-
ment à l’histoire . . ., 4 vols. (Amsterdam: Henry et la veuve de T. Boom, 1700).
42. George Fréderic de Martens, Recueil Des Principaux Traites d’Alliance, de Paix,
de Treve, de Neutralité, . . . conclus par les Puissances De L’Europe Tant Entre Elles
Qu’Avec Les Puissances Et Etats dans d’Autres Parties Du Monde depuis 1761 jusqu’à
présent, 7 vols. (Göttingen: Dieterich, 1791–1801).
43. Albert Sorel, Europe and the French Revolution, ed. and trans. Alfred Cobban
and J. W. Hunt (London: Collins, 1969 [1885]), 353.
44. For early developments in maritime law in the Middle Ages, see Chapter 2.
Carnegie Institution of Washington, 1911 [1650]). On Zouche, see Chapter 4.
46. On Bynkershoek, see Joseph Delpech, “Bynkershoek,” in Pillet, ed., Fondateurs,
385– 446; and A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed. (Paris:
Éditions internationales, 1950), 107–15.
47. Cornelius van Bynkershoek, De Dominio Maris, trans. Ralph van Deman Ma-
goffi n (New York: Oxford University Press, 1923 [1702]); and Cornelius van Bynker-
shoek, The Jurisdiction over Ambassadors in Both Civil and Criminal Cases, trans.
Gordon J. Laing (Oxford: Clarendon Press, 1946 [1721]).
48. Cornelius van Bynkershoek, Questions of Public Law, trans. Tenney Frank (Ox-
ford: Clarendon Press, 1930 [1737]), 6.
49. Bynkershoek, Jurisdiction over Ambassadors, 42.
50. Bynkershoek, Questions, 6–7.
51. Ibid., 88.
52. Ibid., 6.
53. Ibid., 7.
54. Ibid.
55. Ibid.
56. Ibid., 192.
57. Gabriel Bonnot de Mably, Le droit public de l’Europe fondé sur les traités, 2 vols.
(Geneva: Campagnie des Libraires, 1748).
58. Michael Sonenscher, Before the Deluge: Public Debt, Inequality, and the Intel-
lectual Origins of the French Revolution (Princeton, NJ: Princeton University Press,
2007), 247, 250–51.
59. Mack Walker, Johann Jakob Moser and the Holy Roman Empire of the German
Nation (Chapel Hill, NC: University of North Carolina Press, 1981), 338–39.
60. Ibid., 337– 42; and Albert Leschhorn, Johann Jakob Moser und die Eidgenossen-
schaft (Zürich: Juris, 1965), 44– 45.
61. Johannes Mattern, “Problems of Method in International Law: Alfred Verdross’
Concept of the Unity of the Legal Order on the Basis of the International Constitu-
tion,” in Stuart A. Rice, ed., Methods in Social Science: A Case Book, 118–36 (Chicago,
IL: University of Chicago Press, 1931), 125–26.
62. See, for example, ibid., 93–94; and Edwin De Witt Dickinson, The Equality of
States in International Law (Cambridge, MA: Harvard University Press, 1920), 122.
63. On Vattel, see A. Mallarmé, “Emer de Vattel,” in Pillet, ed., Fondateurs, 481–
601; and La Pradelle, Maitres et doctrines, 123– 66.
plied to the Conduct and to the Affairs of the Nations and Sovereigns, trans. Charles
G. Fenwick (Washington, DC: Carnegie Institution, 1916 [1758]), 8a.
65. Ibid., 7a.
66. Ibid., 113.
67. Ibid., 12a.
68. Ibid., 248.
69. For illustrations of the citation of Vattel as an authority in British and American
courts, see Charles G. Fenwick, “The Authority of Vattel,” 7 Am. Pol. Sci. Rev. 395– 410
(1913).
70. Vattel, Law of Nations, 5a– 6a.
71. Ibid., 10a.
72. Ibid., 306.
73. Ibid.
74. Ibid., 304.
75. Wolfgang Friedmann, Legal Theory, 5th ed. (London: Stevens and Sons, 1967),
116; and Paul Guggenheim, “Contributions à l’histoire des sources du droit des gens,”
94 RdC 1–84 (1958),” 34–35.
76. See Chapter 4.
77. Vattel, Law of Nations, 7.
78. See The Antelope, 23 U.S. (10 Wheat.) 66 (1825), 122.
79. See, for example, Alfred Verdross, “Le fondement du droit international,” 16
RdC 247–323 (1927), 310.
80. Vattel, Law of Nations, 9a–10a.

81. Ibid., 271–72
82. See Chapter 2.
83. Vattel, Law of Nations, 279–312.
84. For developments in the nineteenth century in draft ing a code of rules on the
conduct of war, see Chapter 8.
85. On Martens, see La Pradelle, Maîtres et doctrines, 169–81; and H. Bailby,
“Georges-Frédéric de Martens,” in Pillet, ed., Fondateurs, 603–76.
86. George Fréderic de Martens, Précis du droit des gens moderne de l’Europe fondé
sur les traités et l’usage, 2nd French ed. (Göttingen: Dieterich, 1801 [1785]), 18.
87. Ibid., 23.
88. Ibid., 7.
89. Ibid., 7–8, 12–14.
90. Ibid., 11–12.
91. Ibid., 106–7.
92. Ibid., 106–9.
93. Ibid., 9.
94. See Chapter 6.
95. For contemporary studies of the phenomenon, see Mably, Droit public, vol. 2,
260– 411; and Mathieu-Antione Bouchaud, Théorie des traités de commerce entre les
nations (Paris: Duchesne, 1777).
96. Netherlands-Spain, Truce of Apr. 9, 1609, 5(2) Dumont 99.
97. Netherlands-Spain, Treaty of Peace, Jan. 30, 1648, 1 CTS 1, art. 60.
98. England-Netherlands, Treaty of Apr. 5, 1654, 3 CTS 225, art. 24.
99. See, for example, Netherlands-Spain, Treaty of Peace, Jan. 30, 1648, 1 CTS 1, art.
60; France-Spain, Treaty of the Pyrenees, Nov. 7, 1659, 5 CTS 325, art. 27; and France-
Netherlands, Treaty of Apr. 27, 1662, 7 CTS 139, art. 17. See also, to the same general
effect, England-Spain, Treaty of Peace and Friendship, May 23, 1667, 10 CTS 63, art. 3;
and England-Spain, Treaty of July 18, 1670, 11 CTS 383, art. 14.
100. Bynkershoek, Questions, 133–34.
101. See Chapter 2.
102. England-Spain, Treaty of Peace and Friendship, May 23, 1667, 10 CTS 63,
art. 38.
103. See Chapter 2.
104. See Chapter 3.
105. J. K. Oudendijk, Status and Extent of Adjacent Waters: A Historic Orientation
(Leiden: Sijthoff, 1970), 34–35.
106. Percy E. Corbett, Law in Diplomacy (Princeton, NJ: Princeton University
Press, 1959), 118–20; and Wyndham L. Walker, “Territorial Waters: The Cannon Shot
Rule,” 22 BYBIL 210–31 (1945).
107. On the physiocrats, see Stephen C. Neff, Friends but No Allies: Economic Liber-
alism and the Law of Nations (New York: Columbia University Press, 1990), 30–33.
108. On the French Revolution and international law, see Ernest Nys, Études de
droit international et de droit politique (Brussels: Alfred Castaigne, 1896), 318– 406;
and Robert Redslob, Histoire des grands principes du droit des gens depuis l’antiquité
jusqu’à la veille de la Grande Guerre (Paris: A. Rousseau, 1923), 275–332.
109. On the various specific disputes giving rise to the wars in the revolutionary
period, see generally T. C. W. Blanning, The Origins of the French Revolutionary Wars
(London: Longman, 1986).
110. Wilhelm G. Grewe, ed., Fontes Historiae Juris Gentium: Sources Relating to the
History of the Law of Nations, vol. 2 (Berlin: Walter de Gruyter, 1992), 647– 49.
111. David A. Bell, The First Total War: Napoleon’s Europe and the Birth of Modern
Warfare (London: Bloomsbury, 2007), 105.
112. Norman D. Bentwich, The Law of Private Property in War (London: Sweet and
Maxwell, 1907), 85.
113. France-Spain, Family Compact, Aug. 15, 1761, 42 CTS 85.
114. Patricia Chastain Howe, Foreign Policy and the French Revolution: Charles-
François Dumouriez, Pierre LeBrun, and the Belgian Plan, 1789–1793 (Basingstoke:
Palgrave Macmillan, 2008), 114, 141.
115. Declaration of Pilnitz, Aug. 27, 1791, 51 CTS 233.
116. See Chapters 7 and 11 for debates about the principle of humanitarian
intervention.
117. Grewe, ed., Fontes, vol. 2, 652–56; and Bell, First Total War, 144.
118. Bell, First Total War, 117.
120. John H. Herz, “Idealist Internationalism and the Security Dilemma,” 2
World Politics 157– 80 (1951), 167. See also Marc Belissa, Fraternité universelle et in-
téret national (1713–1795): Les cosmopolitiques du droit des gens (Paris: Kimé, 1998),
371–74.
121. Grewe, ed., Fontes, vol. 2, 660– 61. See also Belissa, Fraternité universelle, 365–
77, 419–20.
122. Ernest Nys, “The Codification of International Law,” 5 AJIL 871–900 (1911),
890; and La Pradelle, Maîtres et doctrines, 172–74.
123. Robert Ward, An Enquiry into the Foundation and History of the Law of
Nations, from the Time of the Greeks and Romans to the Age of Grotius, vol. 1 (London:
J. Butterworth, 1795), xii–xiii. See also Randall Lesaffer, “Roman Law and the Early
Historiography of International Law: Ward, Wheaton, Hosack and Walker,” in Th ilo
Marauhn and Heinhard Steiger, eds., Universality and Continuity in International
Law, 149–84 (The Hague: Eleven International, 2011), 155–57.
124. Nys, “Codification,” 892–93.
125. Martens, Précis, xv–xvi.
126. Jeremy Bentham, A Fragment on Government and an Introduction to the Prin-
ciples of Morals and Legislation, ed. Wilfrid Harrison (Oxford: Basil Blackwell, 1960
[1789]), 426.
127. On Bentham’s terminological contribution, see Mark W. Janis, “Jeremy Ben-

tham and the Fashioning of ‘International Law’,” 78 AJIL 405–18 (1984).
128. Jeremy Bentham, “Objects of International Law,” in Works, vol. 2, ed. John
Bowring (Edinburgh: William Tait, 1838), 538.
129. Jeremy Bentham, “A Plan for an Universal and Perpetual Peace,” part 4 of Prin-
ciples of International Law, in Works, vol. 2, 546– 60.
130. Great Britain-U.S.A., Jay Treaty, Nov. 19, 1794, 52 CTS 243.
131. The Flad Oyen, 1 C. Rob. 135 (1799), 139.
132. Ibid., 139– 40.
133. Ibid., 140.
Part III. A Positive Century (1815–1914)

Epigraph: Théophile Funck-Brentano and Albert Sorel, Précis du droit des gens, 2nd
ed. (Paris: E. Plon, Nourrit, 1887), 494.
1. See A. de La Pradelle, Maîtres et doctrine du droit des gens, 2nd ed. (Paris: Édi-
tions internationales, 1950), 183–93.
2. Johann Ludwig Klüber, Droit des gens moderne de l’Europe (Stuttgart: Cotta,
1819). See also Johann Ludwig Klüber, Acten des Wiener Congresses in den Jahren 1814
und 1815, 9 vols. (Osnabrück: Zeller, 1815).
3. Ernest Nys, “The Codification of International Law,” 5 AJIL 871–900 (2006), 881.
4. Louis Renault of France (1907) and T. M. C. Asser of the Netherlands (1911).
6. Breaking with the Past

1. Edmund Burke, Reflections on the Revolution in France, ed. L. G. Mitchell (Ox-
ford: Oxford University Press, 1993 [1790]), 58.
2. Ibid., 37.
3. August Comte, Cours de philosophie positive, 6 vols., 3rd ed. (Paris: J. B. Baillière
et fi ls, 1869). See also Auguste Comte and Positivism: The Essential Writings, ed. Ger-
trud Lenzer; trans. Harriet Martineau (New York: Harper and Row, 1975); and Mary
Pickering, Auguste Comte: An Intellectual Biography, 3 vols. (Cambridge: Cambridge
University Press, 2006– 09).
4. Comte, Cours, vol. 5, 5–345.
5. Ibid., 346–543.
6. A. C. Crombie, Augustine to Galileo: Science in the Later Middle Ages and Early
Modern Times, vol. 2 (Harmondsworth: Penguin, 1959), 44– 45.
7. On the scientific character of positivism, see Antony Anghie, Imperialism, Sover-
eignty and the Making of International Law (Cambridge: Cambridge University Press,
2007), 48–52.
8. See S. Kuttner, “Sur les origines du terme ‘droit positif’,” 15 (4th ser.) RHDFE
728– 40 (1936).
9. See Chapter 1.
10. See C. E. Merriam Jr., History of the Theory of Sovereignty since Rousseau (New
York: Columbia University Press,, 1900), 130–57.
11. John Austin, The Province of Jurisprudence Determined (London: Weidenfeld
and Nicholson, 1955 [1832]), 193.
12. Ibid., 141– 43.
13. Ibid., 140– 41. See also Brian C. Schmidt, The Political Discourse of Anarchy: A
Disciplinary History of International Relations (Albany: State University of New York
Press, 1998), 64– 66, 102–7.
14. William Edward Hall, A Treatise on International Law, 3rd ed. (Oxford: Claren-
don Press, 1890), 1–2.
15. Oliver Wendell Holmes Jr., “Natural Law,” 32 Harvard L. Rev. 40– 44 (1918), 42.
16. Ibid.
17. Oliver Wendell Holmes Jr., The Common Law (Boston: Little, Brown, 1881), 1.
18. See J. B. Schneewind, “Autonomy, Obligation, and Virtue: An Overview of
Kant’s Moral Philosophy,” in Paul Guyer, ed., The Cambridge Companion to Kant,
309– 41 (Cambridge: Cambridge University Press, 1992).
19. David Hume, A Treatise of Human Nature (London: Penguin, 1969 [1739– 40]),
521.
20. See, for example, Georg Schwarzenberger, The Inductive Approach to International
Law (London: Stevens, 1965). On Schwarzenberger, see Chapter 10.
21. For use of the term “voluntarism,” see Georg Schwarzenberger, Power Politics:
An Introduction to the Study of International Relations and Post-War Planning (Lon-
don: Jonathan Cape, 1941), 41; Gerhart Niemeyer, Law without Force: The Function of
Politics in International Law (Princeton, NJ: Princeton University Press, 1941), 332;
and Charles de Visscher, Theory and Reality in Public International Law, 2nd ed.
(Princeton, NJ: Princeton University Press, 1968), 52–54. The first use of the word as a
technical philosophical term has been credited to the German sociologist Ferdinand
Tönnies.
22. See Chapter 5.
23. New York Trust Co. v. Eisner, 256 U.S. 345 (1921), 349.
24. On the pragmatist tradition in that period, see Chapter 5.
25. See A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed. (Paris: Édi-
tions internationales, 1950), 201–10.
26. Henry Wheaton, Elements of International Law (Philadelphia: Carey, Lea and
Blanchard, 1836), 45– 48.
27. See La Pradelle, Maîtres et doctrines, 195–99.
28. A.-G. Heffter, Le droit international public de l’Europe, trans. Jules Bergson
(Berlin: E.-H. Schroeder, 1857), 4–5.
29. Richard Wildman, Institutes of International Law, vol. 1 (London: William Ben-
ning, 1849), 1–5.
31. Carlos Calvo, Le droit international théorique et pratique précédé d’un exposé
historique des progrès de la science du droit des gens, vol. 1, 2nd ed. (Paris: Pedone-
Lauriel, 1870), 104; and Carlos Calvo, Droit international, vol. 1, 3rd ed. (Paris:
Pedone-Lauriel, 1880), 118.
32. Calvo, Droit international, vol. 1, 3rd ed., 130.
33. See La Pradelle, Maîtres et doctrines, 233– 48.
34. Théophile Funck-Brentano and Albert Sorel. Précis du droit des gens, 1st ed.
(Paris: E. Plon, 1877).
35. Lassa Oppenheim, International Law: A Treatise, 2 vols., 1st ed. (London: Long-
mans, Green, 1905– 06).
36. Lassa Oppenheim, “The Science of International Law: Its Task and Method,” 2
AJIL 313–56 (1908).
37. See, to this effect, Wildman, Institutes, 2.
38. On the centrality of sanctions and enforcement, see John Westlake, Interna-
tional Law, vol. 1, 2nd ed. (Cambridge: Cambridge University Press, 1910), 6–8, 14,
301, 358; and Oppenheim, International Law, vol. 1, 6–7.
39. See Heinrich Triepel, Droit international et droit interne, trans. René Brunet
(Paris: A. Pedone, 1920), 63– 65.
40. Prosper Weil, “Le droit international en quête do son identité,” 237 RdC 3–369
(1992), 77.
41. Triepel, Droit international, 94–96; and Dionisio Anzilotti, Cours de droit inter-
national, vol. 1, trans. Gilbert Gidel (Paris: Sirey, 1929), 73–74.
42. Triepel, Droit international, 102–9.
43. See Chapter 4.
44. Triepel, Droit international, 62–109.
45. Ibid., 70–71.
46. Ibid., 87–89.
47. Heinrich Triepel, Völkerrecht und Landesrecht (Leipzig: Hirschfeld, 1899);
Heinrich Triepel, “Les rapports entre le droit interne et le droit international,” 1 RdC
73–121 (1923); Dionisio Anzilotti, Il diritto internazionale nei juridizi interni (Bolo-
gna: Ditta N. Zanichelli, 1905); and Anzilotti, Cours, 49– 65.
48. For Triepel’s views, see Triepel, Droit international, 11– 65. For Anzilotti’s posi-
tion, see Anzilotti, Cours, 49– 65.
49. Anzilotti, Cours, 57–59.
50. Alfred Verdross, “Le fondement du droit international,” 16 RdC 247–323 (1927),
275–76.
51. Sereni, Italian Conception, 216. On Anzilotti’s later change of position on this
point, see Chapter 9.
52. Jean-Jacques Rousseau, “A Discourse on Political Economy,” in The Social Con-
tract and Discourses, 115–53, trans. G. D. H. Cole (London: Dent, 1913 [1758]), 120–21.
See also Wolfgang Friedmann, Legal Theory, 5th ed. (London: Stevens and Sons, 1967),
238; and Léon Michoud, La théorie de la personalité morale et son application au droit
français, vol. 1 (Paris: Librairie Générale de Droit et de Jurisprudence, 1906), 82–85.
53. Jean-Jacques Rousseau, The Social Contract (1762), in The Social Contract and
Discourses, 193.
54. On Savigny, see Frederick C. Beiser, The German Historicist Tradition (Oxford:
Oxford University Press, 2011), 214–52.
55. On fascist views of international law, see Chapter 9.
56. G. F. W. Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood; trans. H.
B. Nisbet (Cambridge: Cambridge University Press, 1991 [1821]), 366.
57. See Erich Kaufmann, “Règles générales du droit de la paix,” 54 RdC 309– 620
(1935), 441– 42.
58. Jochen von Bernstorff and Thomas Dunlap, The Public International Law The-
ory of Hans Kelsen: Believing in Universal Law (Cambridge: Cambridge University
Press, 2010), 21–22.
59. Ibid., 22–23.
60. Ibid., 39, n. 117.
61. On this phase of Kaufmann’s career, see John D. Lewis, The Genossenschaft-
theory of Otto von Gierke: A Study in Political Thought (Madison, WI: University of
Wisconsin Studies in the Political Sciences and History, 1935), 93–94; and Martti
Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870–1960 (Cambridge: Cambridge University Press, 2001), 179–81.
62. Lewis, Genossenschaft-theory, 93.
63. Erich Kaufmann, Das Wesen des Völkerrechts und die Clausula Rebus Sic Stan-
tibus: Rechtsphilosophische Studie zum Rechts-, Staats- und Vertragsbegriffe (Tübin-
gen: J. C. B. Mohr, 1911).
64. For a thorough treatment, see Wictor Sukiennicki, La souveraineté des États en
droit international moderne (Paris: A. Pedone, 1926), 168–211.
65. See Leibniz, “Meditation on the Common Concept of Justice,” in The Political
Writings of Leibniz, 2nd ed., ed. and trans. Patrick Riley (Cambridge: Cambridge
University Press, 1988), 60; and Leibniz, “On the Notions of Right and Justice,” from
the preface to Codex Juris Gentium Diplomaticus (1693), in Leibniz, Selections, ed.
Philip P. Weiner (New York: Charles Scribner’s Sons, 1951), 560.
66. On the development of the Rechtsstaat concept, see Leonard Krieger, The Ger-
man Idea of Freedom: History of a Political Tradition (Chicago, IL: University of Chi-
cago Press, 1957), 252– 61.
67. See Rudolf von Jhering, Law as a Means to an End, trans. Isaac Husik (New
York: Macmillan 1914 [1877–83]), 281–325.
68. See Emmanuelle Jouannet, The Liberal-Welfarist Law of Nations: A History of
International Law (Cambridge: Cambridge University Press, 2012), 34– 48.
69. Immanuel Kant, Theory and Practice, in Political Writings, 61–92, 2nd ed., ed. Hans
Reiss; trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1991 [1793]), 73.
70. Immanuel Kant, Perpetual Peace, in ibid., 93–130, 104. (Emphasis in the original.)
71. Ibid.
72. Ibid., 120, fn.
73. Georg Jellinek, L’État moderne et son droit, vol. 1, trans. Georges Fardis (Paris:
V. Giard et E. Brière, 1911), 562.
74. Robert Axelrod, The Evolution of Cooperation (New York: Basic, 1984). See
Chapter 1.
75. Hersch Lauterpacht, Private Law Sources and Analogies of International Law
(London: Longmans, Green, 1927), 74.
76. See, to this effect, Hall, Treatise, 283–84.
77. See, for example, Calvo, Droit international, vol. 1, 386– 411. See also Panayis A.
Papaligouras, Théorie de la société internationale (Zürich: Éditions Polygraphiques,
1941), 279–316.
78. See, for example, Wheaton, Elements, 95–129; Hall, Treatise, 294, 303–5; and
Funck-Brentano and Sorel, Précis, 212–23. For a survey of state practice in this area,
see Calvo, Droit international, vol. 1, 238–308.
79. See, for example, T. J. Lawrence, The Principles of International Law, 3rd ed.
(Boston: D. C. Heath, 1905), 119–21.
81. For an especially strong assertion of the thesis, see Alphonse Rivier, Principes
des droits des gens, vol. 1 (Paris: A. Rousseau, 1896), 253– 407.
82. See J. L. Brierly, The Basis of Obligation in International Law, and Other Papers
(Oxford: Clarendon Press, 1958), 3–9.
83. Thomas Aquinas, Summa Theologica, in Political Writings, ed. R. W. Dyson
(Cambridge: Cambridge University Press, 2002 [ca. 1270]), 117–18.
84. See, for example, Hall, Treatise, 265–71; and Oppenheim, vol. 1, International
Law, 177–81.
85. Westlake, International Law, vol. 1, 306–9.
86. Sereni, Italian Conception, 233–34.
87. Heffter, Droit international, 56– 69; Wheaton, Elements, 81–82, 95–129; Calvo,
Droit international, vol. 1, 309–11; Hall, Treatise, 45–58; and Oppenheim, Interna-
tional Law, vol. 1, 158–59.
88. See, for example, Wheaton, Elements, 81–82; and Calvo, Droit international,
vol. 1, 309–11.
89. Ashburton to Webster, July 28, 1842, 30 BFSP 195–200, 196.
90. Webster to Fox, Apr. 24, 1841, 29 BFSP 1129–39, 1137–38.
91. See Chapter 5.
92. Oppenheim, “Science,” 335–36.
93. See Chapter 9.
94. See, for example, Carl Bergbohm, Staatsverträge und Gesetze als Quellen des
Völkerrechts (Dorpat: C. Matthiesen, 1877), 20; Jellinek, L’État moderne, vol. 1, 560;
and Oppenheim, International Law, vol. 1, 4.
95. See Chapter 3.

96. See Chapter 8.
97. See J. Kosters, Les Fondements du Droit des Gens: Contribution à la Théorie Gé-
nérale du Droit des Gens (Leyden: E. J. Brill, 1925), 231– 46.
98. Rivier, Principes, vol. 1, 35–57. See also Anthony Carty, Philosophy of Interna-
tional Law (Edinburgh: Edinburgh University Press, 2007), 50–51.
99. See generally Stephen C. Neff, War and the Law of Nations: A General History
(Cambridge: Cambridge University Press, 2005), 167–214.
100. Oppenheim, “Science,” 354.
101. On medieval just war doctrine, see Chapter 2.
102. See Christopher Coker, Barbarous Philosophers: Reflections on the Nature of
War from Heraclitus to Heisenberg (London: Hurst, 2010), 193–206.
103. Erich Kaufmann, Das Wesen des Völkerrechts und die Clausula Rebus Sic Stan-
tibus: Rechtsphilosophische Studie zum Rechts-, Staats- undVertragsbegriffe (Tübin-
gen: J. C. B. Mohr, 1911), 146.
104. F. de Martens, Traité de droit international, vol. 1 (Paris: A. Maresq, 1883), 233.
105. See Gerhardt Niemeyer, Law without Force (Princeton, NJ: Princeton Univer-
sity Press, 1941), 174–76.
106. Henry Bonfi ls, Manuel de droit international public, 1st ed. (Paris: Rousseau,
1894), 63.
7. Dissident Voices
1. See, to this effect, Theodore D. Woolsey, Introduction to the Study of International
Law, 5th ed. (New York: Charles Scribner’s Sons, 1878), 13–14, 23.
2. See Chapter 8.
3. See Chapter 6.
4. Franz von Liszt, Le droit international: Exposé systématique. trans. Gilbert Gidel
(Paris: A. Pedone, 1927), 14–15.
5. On Pillet, see A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed.
(Paris: Pedone, 2004), 307–23.
6. Antoine Pillet, “Le droit international public: Ses éléments constitutifs, son do-
maine, son objet,” 1 RGDIP 1–32 (1894),” 13–18.
7. Ernest Nys, Le droit international: Les principes, les théories, les faits, vol. 1, 2nd
ed. (Brussels: Weissenbruch, 1912), 153–55.
8. Henry W. Halleck, International Law; or, Rules Regulating the Intercourse of
States in Peace and War (San Francisco: H. H. Bancroft, 1861).
9. Henry Maine, International Law (New York: Henry Holt, 1888), 32–34.
10. L.-B. Hautefeuille, Des droits et devoirs des nations neutres en temps de guerre
maritime, 2nd ed., 3 vols. (Paris: Guillaumin, 1858).
11. Carl von Kaltenborn, Die Vorläufer des Hugo Grotius auf dem Gebiete des ius
naturae et gentium sowie der Politik im Reformationszeitalter (Leipzig: G. Mayer, 1848).
12. Ludwik Ehrlich, “The Development of International Law as a Science,” 105 RdC
173–265 (1962), 246– 48.
13. Henry Bonfi ls, Manuel de droit international public, 1st ed. (Paris: Rousseau,
1894), 17.
14. Ibid., 16–18.
15. Johann Kaspar Bluntschli, Le droit international codifié, trans. M. C. Lardy
(Paris: Guillaumin, 1870).
16. Johann Kaspar Bluntschli, The Theory of the State, 3d ed, trans. D. G. Ritchie, P.
E. Matheson, and R. Lodge (Oxford: Clarendon Press, 1895), 105.
17. Bluntschli, Droit international, 1.
18. Bluntschli, Theory of the State, 297, n. 2.
19. Bluntschli, Droit international, 4.
20. Ibid., 5.
21. Ibid., 57.
22. Ibid., 58–59.
23. Ibid., 58.
24. Ibid., 226–27.
25. See Chapter 10.
26. On Lorimer, see La Pradelle, Maîtres et doctrines, at 219–29.
27. See Chapter 1.
28. James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Rela-
tions of Separate Political Communities, vol. 1 (Edinburgh: William Blackwood and
Sons, 1883), 83.
29. James Lorimer, Studies National and International (Edinburgh: W. Green,
1890), 107.
30. Lorimer, Institutes, vol. 1, 14.
31. Ibid., 11–14.
32. Lorimer, Studies, 152–54.
33. Lorimer, Institutes, vol. 1, 163.
34. Ibid., 54.
35. Ibid., 58.
36. Ibid., vii–viii.
37. Ibid., vol. 2, 194.
38. Ibid., vol. 1, 47.
39. Ibid., 9–11.
40. Ibid., 38.
41. Ibid., 37–50.
42. Ibid., 33.
43. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed.
R. H. Campbell and A. S. Skinner (Indianapolis, IN: Liberty Fund, 1976 [1776]), 456.
44. See Chapter 5.
45. Quoted in W. M. Curtiss, The Tariff Idea (Irvington-on-Hudson, NY: Founda-

tion for Economic Education, 1953), 63.
46. George Washington, “Farewell Address,” in Ruhl J. Bartlett, ed., The Record of
American Diplomacy: Documents and Readings in the History of American Foreign
Relations, 4th ed., 86–88 (New York: Alfred A. Knopf, 1964 [1796]), 87. (Emphasis in
the original.)
47. Frédéric Bastiat, “Peace and Freedom or the Republican Budget,” in ‘The Law,’
‘The State,’ and Other Political Writings, 1843–1850, trans. Jane Willems and Michel
Willems, 282–327 (Indianapolis, IN: Liberty Fund, 2012 [1849]), 317.
48. Jacob Viner, “The Intellectual History of Laissez Faire,” 3 JLE 45– 69 (1960), 61.
49. Ferdinand Tönnies, Community and Civil Society, trans. José Harris and Mar-
garet Hollis (Cambridge: Cambridge University Press, 2001 [1887]), 243.
50. France–Great Britain, Cobden-Chevalier Treaty, Jan. 23, 1860, 121 CTS 243.
51. See Stephen C. Neff, Friends but No Allies: Economic Liberaism and the Law of Na-
tions (New York: Columbia University Press, 1990), 38–71; and Emmanuelle Jouannet,
The Liberal-Welfarist Law of Nations: A History of International Law, trans. Christopher
Sutcliffe (Cambridge: Cambridge University Press, 2012), 50–57.
52. Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Common-
wealth, ed. and trans. Julian H. Franklin (Cambridge: Cambridge University Press,
1992), 39– 42.
53. See Chapter 5.
54. Elihu Root, “The Basis of Protection to Citizens Residing Abroad,” 4 AJIL 517–
28 (1910), 521.
55. Edwin M. Borchard, The Diplomatic Protection of Nationals Abroad; or, The Law
of International Claims (New York: Bank, 1915), 39– 40.
56. F. de Martens, Traité de droit international, vol. 1 (Paris: A. Maresq, 1883), 14–15.
57. Pasquale Fiore, “Some Considerations on the Past, Present and Future of Inter-
national Law,” 6 ASIL Procs. 15–36 (1912), 22–24. See also Martti Koskenniemi, The
Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cam-
bridge: Cambridge University Press, 2001), 54–57.
58. Samuel Flagg Bemis, The Latin American Policy of the United States: A Historical
Interpretation (New York: Harcourt, Brace and World, 1943), 412, n. 40.
59. See Leonidas García, “La doctrina Tobar,” 1 Revista de la Sociedad ‘Jurídico-
Literaria’ 25–71 (1913).
60. General Treaty of Peace and Amity, Dec. 20, 1907, 206 CTS 63, Additional Con-
vention, art. 1.
61. Sec’y of State Bryan, Circular, Nov. 7, 1913, [1913] FRUS 856.
62. Carlos Calvo, Le droit international théorique et pratique, vol. 2, 3d ed. (Paris:
Pedone-Lauriel, 1880), 225–26.
63. See Donald R. Shea, The Calvo Clause: A Problem of Inter-American Interna-
tional Law and Diplomacy (Minneapolis, MN: University of Minnesota Press, 1955).
64. Venezuela Constitution, Apr. 27, 1881, 72 BSFP 977, art. 10.
65. Lars Schoultz, Beneath the United States: A History of U.S. Policy toward Latin
America (Cambridge, MA: Harvard University Press, 1998), 272–75.
66. See, to this effect, Tinoco Arbitration (Great Britain v. Costa Rica), 1 RIAA 369
(1923), 380–82.
67. See John Stuart Mill, “A Few Words on Non-Intervention,” in Collected Works of
John Stuart Mill, vol. 21, ed. John M. Robson, 215–57 (Toronto: University of Toronto
Press, 1984 [1867]).
68. John Stuart Mill, “Vindication of the French Revolution of February 1848,” in
ibid., vol. 20, 340– 48; and Mill, “Non-Intervention,” 123–24.
69. For the agreement between Austria and Russia for Russian aid, see Austria-
Russia, Convention on the Reception of Russian Troops, June 10, 1849, 103 CTS 93.
70. Mill, “Non-Intervention,” 121–24.
71. Institute of International Law, Rights and Duties of Foreign Powers as Regards
the Established and Recognized Governments in Case of Insurrection (1900), art.
2(2), in James Brown Scott, ed., Resolutions of the Institute of International Law Deal-
ing with the Law of Nations (New York: Oxford University Press, 1916), 157–59. On the
Institute of International Law, see Chapter 8.
72. See Chapter 6.
73. For future developments regarding liberalism, see Chapter 9.
74. On Herder, see Hans Kohn, The Idea of Nationalism: A Study in Its Origins and
Background (New York: Macmillan, 1961), 427–51; Friedrich Meineke, Historism: The
Rise of a New Historical Outlook, trans J. E. Anderson (London: Routledge and Kegan
Paul, 1972), 295–372; Sonia Sikka, Herder on Humanity and Cultural Difference: Enlight-
ened Relativism (Cambridge: Cambridge University Press, 2011); and Frederick C. Beiser,
The German Historicist Tradition (Oxford: Oxford University Press, 2011), 98–116.
75. See Martens, Traité, vol. 1, 192, identifying Madame de Staël as a progenitor of
the nationality school.
76. Bluntschli, Theory of the State, 71.
77. Giuseppe Mazzini, The Duties of Man and Other Essays, trans. Ella Noyes,
Thomas Okey, and L. Martineau (London: J. M. Dent and Sons, 1907), 53.
78. Ibid., 55.
79. See Pasquale Mancini, Della nazionalità come fondamento del dritto delle genti
(Turin: Eredi Botta, 1851).
80. Angelo Piero Sereni, The Italian Conception of International Law (New York: Co-
lumbia University Press, 1943), 162–63. See also IDI Annuaire, vol. 1 (1874), 123–68.
81. Giorgio del Vecchio, Philosophy of Law, 8th ed., trans. Thomas Owen Martin
(Washington, DC: Catholic University Press, 1953), 361.
82. Sereni, Italian Conception, 194.
83. On Fiore’s support for the nationality theory, see Enrico Catellani, “Les maîtres de
l’école italienne du droit international au XIXe siècle,” 46 RdC 705–826 (1933), 732–36.
84. See ibid., 729–31.

85. Terenzio Mamiani della Rovere, Rights of Nations or, The New Law of European
States Applied to the Affairs of Italy, trans. Roger Acton (London: W. Jeffs, 1861), 39.
86. Ibid., 45.
87. Ibid., 16.
88. Ibid., 39.
89. Ibid., 260.
90. Ibid., 261.
91. Ibid., 20.
92. Ibid., 189–92.
93. Ibid., 179–80.
94. Ibid., 143– 45.
95. Ibid., 193–94.
96. Mill, “Vindication,” 348.
97. John Stuart Mill, “Considerations on Representative Government,” in On Lib-
erty and Other Essays, ed. John Gray, 203– 467 (Oxford: Oxford University Press, 1991
[1861]), 428. On the affi nity between liberalism and nationalism (at least of the moder-
ate kind), see James Mayall, Nationalism and International Society (Cambridge: Cam-
98. Bluntschli, Theory of the State, 104.
99. Ibid., 105– 06.
100. Ibid., 105.
101. Ibid., 106.
102. Ibid., 93.
103. See Chapter 10.
104. Theodore Zeldin, France 1848–1945: Politics and Anger (Oxford: Oxford Uni-
versity Press, 1979), 294.
105. Friedrich Engels, Socialism: Scientific and Utolpian (London: Bookmarks, 1993
[1880]), 107.
106. See, for example, Georg G. Iggers, The Cult of Authority: The Political Philoso-
phy of the Saint-Simonians: A Chapter in the Intellectual History of Totalitarianism,
2nd ed. (The Hague: Martinus Nijhoff, 1970).
107. Juan Bautista Alberdi, “Report on the Suitability and Aims of a General Ameri-
can Congress,” in Documents on Inter-American Cooperation, vol. 1, ed. Robert N.
Burr and Roland D. Hussey, 88–94 (Philadelphia, PA: University of Pennsylvania
Press, 1955 [1844]), 89.
108. Ibid., 92.
109. Ibid., 93.
110. H. B. Jacobini, A Study of the Philosophy of International Law as Seen in the
Works of Latin American Writers (The Hague: Martinus Nijhoff, 1954), 69.
111. Ibid., 70.
112. Arthur P. Whitaker, The Western Hemisphere Idea: Its Rise and Decline (Ithaca,
NY: Cornell University Press, 1954), 65.
113. Règlement for the Free Navigation of Rivers, Mar. 24, 1815, 64 CTS 13.
114. On the various international river commissions, see F. S. L. Lyons, Internation-
alism in Europe 1815–1914 (Leiden: A. W. Sijthoff, 1963), 53– 64.
115. Constantinople Convention, Oct. 29, 1888, 171 CTS 241.
116. See France–Great Britain, Declaration Respecting Egypt and Morocco, Apr. 8,
1904, 195 CTS 198, art. 6.
117. Great Britain–U.S.A., Hay-Pauncefort Treaty, Nov. 18, 1901, 190 CTS 215.
118. Treaty Relative to the Formation of a General Postal Union, Oct. 9, 1874, 147
CTS 136.
119. Convention for the Formation of a Universal Postal Union, June 1, 1878, 152
CTS 235. See also Paul S. Reinsch, “International Unions and Their Administration,”
1 AJIL 579– 623 (1907), 586–89.
120. International Telegraphic Convention, May 17, 1865, 130 CTS 198.
121. See Reinsch, “International Unions,” 582–85.
122. Radiotelegraphy Convention, Nov. 3, 1906, 203 CTS 101.
123. Convention on Collisions at Sea, Sep. 23, 1910, 212 CTS 178; and Convention
on Assistance and Salvage at Sea, Sep. 23, 1910, 212 CTS 187.
124. See International Convention on Sugar Bounties, Mar. 5, 1902, 191 CTS 56, art. 7.
125. Paul S. Reinsch, Public International Unions: Their Work and Organization
(Boston, MA: Ginn, 1911), 4. See also Pitman B. Potter, “Développement de
l’organisation internationale (1815–1914),” 64 RdC 71–156 (1938).
126. Pitman B. Potter, “Origin of the Term International Orga nization,” 39 AJIL
803– 6 (1945), 805– 6.
127. See J. C. Bluntschli, “Die Organisation des europäischen Staatenvereins”
(1878), in Gesammelte kleine Schriften von J. C. Bluntschli, vol. 2, 279–312 (Nördlin-
gen: Beck, 1881), 307– 09.
128. Martens, Traité, vol. 1, 236.
129. Reinsch, Public International Unions, 2.
130. Ibid., 141.
131. Ibid., 2.
132. Ibid., 5.
133. Georg Jellinek, Die Lehre von den Staatenverbindungen (Vienna: Alfred Hölder,
1882), 111.
134. Ibid., 109.
135. Ibid., 112.
136. On sociological jurisprudence, see generally Wolfgang Friedmann, Legal The-
ory, 5th ed. (London: Stevens and Sons, 1967), 243–52.
137. See Zeldin, France 1848–1945: Politics and Anger, 276–318.
138. See, in par ticu lar, Émile Durkheim, The Division of Labor in Society, trans.
George Simpson (New York: Free Press, 1933 [1893]). See also Steven Lukes, Émile
Durkheim: His Life and Work. A Historical and Critical Study (Harmondsworth: Pen-
guin, 1973).
139. On Álvarez, see La Pradelle, Maîtres et doctrines, 423– 40.
140. See Carl Landauer, “A Latin American in Paris: Alejandro Álvarez’s Le droit
international américain,” Leiden J. Int’l L. 957–81 (2006). On Alvarez’s later activities,
see Chapters 9 and 10.
141. Alejandro O. Álvarez, Une nouvelle conception des études juridiques et de la
codification du droit civil (Paris: Librairie générale de droit et de jurisprudence,
1904).
142. Ibid., 133–38.
143. See Chapter 9.
144. Amos S. Hershey, The Essentials of International Public Law (New York: Mac-
millan, 1912), 19.
145. Bonfi ls, Manuel, 3.
146. Ibid., 7.
147. Ibid., 3–5, 7–8, 11.
148. See, for example, Jochen von Bernstorff and Thomas Dunlap, The Public Inter-
national Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge: Cam-
bridge University Press, 2010), 18–21.
149. See, in this regard, the discussion of the New Haven School in Chapter 10.
150. Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History
and Philosophy, trans. Thomas R. Hanley (Indianapolis, IN: Liberty Fund, 1998
[1936]), 124.
151. Alberdi, “Report,” 92.
152. A. de La Pradelle, “La question chinoise,” 8 RGDIP 272–340 (1908), 327–33.
153. Ibid., 325– 40.
154. Letter Arntz to G. Rolin-Jaequemyns, 8 (1st ser.) RDILC 673–75 (1876).
155. G. Rolin-Jaequemyns, “Notes sur la théorie du droit d’intervention, à propos
d’une lettre de M. Le Prof. Arntz,” ibid., 675–82.
156. Antoine Rougier, “La théorie de l’intervention d’humanité,” 17 RGDIP 468–
526 (1910).
157. Ibid., 471.
158. Ibid., 478–79.
159. Ibid., 489–97.
8. In Full Flower
1. Treaty of Paris, Mar. 30, 1856, 114 CTS 409, art. 11.
2. On this incident, see David J. Bederman, “The 1871 London Declaration, Rebus
sic Stantibus and a Primitivist View of the Law of Nations,” 82 AJIL 1– 40 (1988).
3. See Romain Yakemtchouk, “Les origins de l’Institut de Droit International,” 77
RGDIP 373– 423 (1973).
4. F. S. L. Lyons, Internationalism in Europe 1815–1914 (Leiden: A. W. Sijthoff,

1963), 218–21.
5. Ibid., 221.
6. See Chapter 9 for the later founding of the Hague Academy.
7. On Scott, see A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed.
(Paris: Éditions internationales, 1950), 405–22.
8. On the American Institute, see Samuel Flagg Bemis, The Latin American Policy of
the United States: A Historical Interpretation (New York: Harcourt, Brace and World,
1943), 238– 40.
9. It was originally entitled Zeitschrift für internationales Privat- und Strafrecht.
10. For the principal work of Olivart, see Rafael Conde y Luque, marquis of Olivart,
Tratado de derecho internacional publico, 4 vols., 4th ed. (Madrid: V. Suárez, 1903– 4).
11. James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Rela-
tions of Separate Political Communities, vol. 1 (Edinburgh: William Blackwood and
Sons, 1883), 61– 62.
12. Lassa Oppenheim, International Law: A Treatise, vol. 1, 1st ed. (London: Long-
mans, Green, 1905), vii.
13. Manfred Lachs, The Teacher in International Law (Teachings and Teaching) (The
Hague: Martinus Nijhoff, 1982), 146.
14. Pitman B. Potter, “Political Science in the International Field,” 17 Am. Pol. Sci.
Rev. 381–91 (1923), 386.
15. Ibid., 386.
16. See Liste des livres offerts en don à l’Université de Harvard (Cambridge, Massa-
chusetts, United States of America) par le marquis de Olivart (Madrid: R. Álvarez,
1912). See also Ramón de Dalmau y de Olivart, Marqués de Olivart, Bibliographie du
droit international, 3 vols., 2nd ed. (Paris: A. Pedone, 1905–10).
17. John Stuart Mill, “Inaugural Address Delivered to the University of St. An-
drews,” Collected Works of John Stuart Mill, vol. 21, ed. John M. Robson (Toronto:
University of Toronto Press, 1984 [1867]), 246.
18. Westlake, “Introductory Lecture,” Oct. 17, 1888, in The Collected Papers of John
Westlake on Public International Law (Cambridge: Cambridge University Press, 1914),
412–13.
19. Potter, “Political Science,” 386–87.
20. Roger Chickering, Imperial Germany and a World without War: The Peace
Movement and German Society, 1892–1914 (Princeton, NJ: Princeton University
Press, 1975), 42.
21. James Crawford, “Public International Law in Twentieth-Century England,” in
Jack Beatson and Reinhard Zimmermann, eds., Jurists Uprooted: German-Speaking
Emigré Lawyers in Twentieth-Century Britain, 681–707 (Oxford: Oxford University
Press, 2004), 687.
22. For Mancini’s chief contribution to international law, see Chapter 7.
23. See Amancio Alcorta, Tratado de deerecho internacional (Buenos Aires: Biedma,
1878).
24. See Robert Phillimore, Commentaries upon International Law, 4 vols. (London:
W. G. Benning, 1854– 61).
25. See Kent’s Commentary upon International Law, ed. J. T. Abdy (Cambridge:
Deighton, Bell, 1866).
26. F. de Martens, Traité de droit international, 3 vols. (Paris: A. Maresq, 1883).
27. Obituary of Martens by C. L. Kamarowsky, in 23 IDI Annuaire 538–43 (1910), 543.
28. See Jaan Kross, Professor Martens’ Departure, trans. Anselm Hollo (London:
Harvill, 1994 [1984]).
29. On Renault, see La Pradelle, Maîtres et doctrines, 249– 61.
30. George A. Finch, The Sources of International Law (Washington, DC: Carnegie
Endowment for International Peace, 1937), 41.
31. Martens, Traité, vol. 1, 219–30.
32. Ibid., 232–33.
33. Fauchille, Louis Renault, 20–24.
34. Barbara W. Tuchman, The Proud Tower: A Portrait of the World before the War
1890–1914 (New York: Macmillan, 1966), 332, quoting Baron Marschall von Bieber-
stein, the German delegate to the Second Hague Peace Conference of 1907.
35. See, on this point, C. H. Alexandrowicz, An Introduction to the History of the
Law of Nations in the East Indies (16th, 17th and 18th Centuries) (Oxford: Clarendon
Press, 1967), 234–37.
36. William Edward Hall, A Treatise on International Law, 3rd ed. (Oxford: Claren-
don Press, 1890), 42.
37. Lewis Henry Morgan, Ancient Society (New York: H. Holt, 1877), 8–18.
38. See James Lorimer, Institutes, vol. 1, 101–3; Thedore D. Woolsey, Introduction to
the Study of International Law, 5th ed. (New York: Charles Scribner’s Sons, 1878), 3– 4;
Henry Bonfi ls, Manuel de droit international public, 1st ed. (Paris: Rousseau, 1894),
23–24, 108; and Ernest Nys, Le droit international: Les principes, les théories, les faits,
vol. 1 (Brussels: Weissenbruch, 1912), 132–37. See also Ram Prakash Anand, “Univer-
sality of International Law: An Asian Perspective,” in Thilo Marauhn and Heinhard
Steiger, eds., Universality and Continuity in International Law, 87–105 (The Hague:
Eleven, 2011), 95–99.
39. On the concept of “civilized” states in international law, see generally Gerrit W.
Gong, The Standard of “Civilization” in International Society (Oxford: Clarendon
Press, 1984); and Wilhelm G. Grewe, The Epochs of International Law, trans. Michael
Byers (Berlin: Walter de Gruyter, 2000), 445–58.
40. Phillimore, Commentaries, vol. 1, 23–24.
41. Bonfi ls, Manuel, 109.
42. Antonio Truyol y Serra, “L’expansion de la société internationale aux XIXe et
XXe siècles,” 116 RdC 89–179 (1965), 153–54.
43. Treaty of Paris, Mar. 30, 1856, 114 CTS 409, art. 7. See also Tetsuya Toyoda,
“L’aspect universaliste du droit international européen du 19ème siècle et le statut
juridique de la Turquie avant 1856,” 8 JHIL 19–37 (2006); and Gong, Standard,
106–19.
44. See Edward V. Gulick, Peter Parker and the Opening of China (Cambridge, MA:
Harvard University Press, 1973). On the Chinese role in the international system, see
Immanuel C. Y. Hsü, China’s Entrance into the Family of Nations: The Diplomatic
Phase 1858–1880 (Cambridge, MA: Harvard University Press, 1960); and Gong, Stan-
dard, 130– 63.
Fenwick (Washington, DC: Carnegie Institution, 1916 [1758]), 40.
46. Ibid., 235. See Gulick, Peter Parker, 89–90.
47. Lydia H. Liu, “Legislating the Universal: The Circulation of International Law in
the Nineteenth Century,” in Lydia H. Liu, ed., Tokens of Exchange: The Problem of
Translation in Global Circulations, 127– 64 (Durham, NC: Duke University Press,
1999), 136– 46.
48. Ibid., 143.
49. Hsü, China’s Entrance, 125–38; and Jing Liao, “The Contributions of Nineteenth-
Century Christian Missionaries to Chinese Library Reform,” 41 Libraries and Culture
360–71 (2006), 365.
50. Hsü, China’s Entrance, 138. On Martin’s life and career, see generally Ralph R.
Covell, W. A. P. Martin, Pioneer of Progress in China (Washington, DC: Christian
University Press, 1976). On the translation of international-law texts into Chinese,
see Rune Svarverud, International Law as World Order in Late Imperial China:
Translation, Reception and Discourse, 1847–1911 (Leiden: Brill, 2007), 75–98,
102–27.
51. See Chapter 5.
52. On the importance of positivist and utilitarian thought in Nishi’s later writing
and teaching, see generally Thomas R. H. Havens, “Comte, Mill, and the Thought of
Nishi Amane in Meiji Japan,” 27 J. Asian Stud. 217–28 (1968).
53. John Peter Stern, The Japanese Interpretation of the “Law of Nations,” 1854–1874
(Princeton, NJ: Princeton University Press, 1979), 77–78.
54. Ibid., 63– 66, 70–71.
55. Ibid., 81.
56. Takahashi Sakuyei, The Influence of Grotius in the Far East (New York: Brook-
lyn Institute of Arts and Sciences, 1908), 12–13.
57. See Takahashi Sakuyei, The Application of International Law during the Chino-
Japanese War (London: Stevens and Sons, 1898); and Ariga Nagao, La guerre sino-
japonaise au point de vue du droit international (Paris: A. Pedone, 1896).
58. Alexis Dudden, “Japan’s Engagement with International Terms,” in Liu, ed.,
Tokens of Exchange, 184–85.
59. On Boissonade’s career in Japan, see ibid., 176–78. On the Taiwan expedition,
see Marius B. Jansen, The Making of Modern Japan (Cambridge, MA: Harvard Uni-
versity Press, 2000), 423–24; and Stern, Japanese Interpretation, 118–24.
60. See Chapter 3.
61. Stanford J. Shaw, History of the Ottoman Empire and Modern Turkey. Empire of
the Gazis: The Rise and Decline of the Ottoman Empire, 1280–1808, vol. 1 (Cambridge:
Cambridge University Press, 1976), 29–30.
62. France–Ottoman Empire, Draft Treaty of Amity and Commerce, Feb. 1536, in J.
C. Hurewitz, The Middle East and North Africa in World Politics: A Documentary Re-
cord, 2nd ed., vol. 1 (New Haven, CT: Yale University Press, 1975), 1– 6. See also Shaw,
History, vol. 1, 97–98.
63. France-Turkey, Capitulations, May 28, 1740, 36 CTS 41. On the eventual abroga-
tion of the capitulations in 1923, see Chapter 9.
64. China-Russia, Treaty of Peace and Boundaries, Oct. 21, 1727, 33 CTS 23, art. 4.
See also Hsü, China’s Entrance, 139– 40.
65. China–Great Britain, Treaty of Nanking, Aug. 28, 1842, 93 CTS 465. On the
actual legal character of the “Opium War” as an armed reprisal rather than as a true
war, see Chapter 6.
66. Westel W. Willoughby, Foreign Rights and Interests in China, 2nd ed. (Balti-
more, MD: Johns Hopkins University Press, 1927), 558–59.
67. China–U.S.A., Treaty of Wanghia, July 3, 1844, 97 CTS 105, arts. 21, 24, 25;
China-France, Treaty of Friendship, Commerce and Navigation, Oct. 24, 1844, 97
CTS 375, arts. 25, 27, 28; and China-Sweden, Treaty of Peace, Friendship and Com-
merce, Mar. 20, 1847, 100 CTS 445, arts. 21, 24, 25.
68. For a full list, see Thomas F. Willard, The End of Extraterritoriality in China
(Shanghai: A.B.C. Press, 1931), 26.
69. See China-Peru, Treaty of Friendship, Commerce and Navigation, Jun 26, 1874,
148 CTS 35, arts. 12–14; Brazil-China, Treaty of Friendship, Commerce and Naviga-
tion, Oct. 3, 1881, 159 CTS 103, arts. 2–3; China-Mexico, Treaty of Amity and Com-
merce, Dec. 14, 1899, 188 CTS 203, arts. 2–3; and China-Japan, Treaty of Commerce
and Navigation, July 21, 1896, 183 CTS 152, arts. 20–22.
70. Great Britain–Siam, Treaty of Friendship and Commerce, Apr. 18, 1855, 113
CTS 83, art. 2.
71. See Siam–U.S.A., Treaty of Amity and Commerce, May 29, 1856, 115 CTS 111,
art. 2; France-Siam, Treaty of Friendship, Commerce and Navigation, Aug. 15, 1856,
115 CTS 391, arts. 8–9; Denmark-Siam, Treaty of Friendship, Commerce and Naviga-
tion, May 21, 1858, 119 CTS 71, arts. 9–10; Italy-Siam, Treaty of Commerce and Navi-
gation, Oct. 3, 1868, 138 CTS 123, art. 9; and Spain-Siam, Treaty of Friendship, Navi-
gation and Commerce, Feb. 23, 1870, 141 CTS 51, arts. 6–7.
72. Japan–U.S.A., Treaty on Rights of American Citizens in Japan, June 17, 1857, 117
CTS 43. See also F. C. Jones, Extraterritoriality in Japan and the Diplomatic Relations
Resulting in Its Abolition (New Haven, CT: Yale University Press, 1931), 1–70; and
Richard T. Chang, The Justice of the Western Consular Courts in Nineteenth-Century

Japan (Westport, CT: Greenwood Press, 1984).
73. Hsü, China’s Entry, 138– 45.
74. Great Britain–Japan, Treaty of Commerce and Navigation, July 16, 1894, 180
CTS 257, art. 18. See also Japan–U.S.A., Treaty of Commerce and Navigation, Nov. 22,
1894, 180 CTS 407, art. 17. See also Jones, Extraterritoriality, 128– 62.
75. See Chapters 9 and 10 for further developments.
76. John Stuart Mill, “A Few Words on Non-Intervention,” in Collected Works of
John Stuart Mill, vol. 21, 109–24, 118–19.
77. See, for example, A.-G. Heffter, Le droit international public de l’Europe, trans.
Jules Bergson (Berlin: E.-H. Schroeder, 1857), 14–15; John Westlake, Chapters on In-
ternational Law, in The Collected Papers of John Westlake on Public International Law,
xvii–282 (Cambridge: Cambridge University Press, 1914 [1894]), 140– 48; and T. J.
Lawrence, The Principles of International Law, 3rd ed. (Boston: D. C. Heath, 1905), 58.
78. See Chapter 3.
79. On protectorates, see Edwin De Witt Dickinson, The Equality of States in Inter-
national Law (Cambridge, MA: Harvard University Press, 1920), 240– 47.
80. Treaty of Nov. 5, 1815, 65 CTS 241.
81. Bonfi ls, Manuel, 97–100; and Oppenheim, International Law, vol. 1, 133–37.
82. See Dickinson, Equality of States, 236– 40.
83. Phillimore, Commentaries, vol. 1, 107–8.
84. See John Westlake, International Law, 2nd ed., vol. 1 (Cambridge: Cambridge
University Press, 1910), 130–35; and Geddes W. Rutherford, “Spheres of Influence: An
Aspect of Semi-sovereignty,” 20 AJIL 300–25 (1926).
85. Declaration of Paris, Apr. 16, 1856, 115 CTS 1. On the “free ships–free goods”
principle, see Chapter 5.
86. Geneva Convention for the Amelioration of the Condition of the Wounded,
Aug. 22, 1864, 129 CTS 361.
87. Additional Articles Relating to the Condition of the Wounded in War, Oct. 20,
1868, 128 CTS 189.
88. Geneva Convention on Wounded and Sick in Armies in the Field, July 6, 1906,
202 CTS 144.
89. Declaration of St. Petersburg, Dec. 11, 1868, 138 CTS 297.
90. Convention for the Protection of Submarine Cables, Mar. 14, 1884, 163 CTS 391.
91. See Antony Anghie, Imperialism, Sovereignty and the Making of International
Law (Cambridge: Cambridge University Press, 2007), 90–97.
92. Declaration on the Universal Abolition of the Slave Trade, Feb. 8, 1815, 63 CTS
473.
93. General Act Relating to the African Slave Trade, July 2, 1890, 173 CTS 285. On
the General Act, see Lyons, Internationalism, 293–95.
94. International Convention on Carriage of Goods by Rail, Oct. 14, 1890, 174
CTS 1.
95. Protocol Respecting Measures to Be Taken against the Anarchist Movement,

Mar. 14, 1904, 195 CTS 118.
96. Convention Prohibiting White Phosphorus in Matches, Sep. 26, 1906, 203 CTS
12; and Convention Prohibiting Night Work for Women, Sep. 26, 1906, 203 CTS 4.
97. Convention on the Circulation of Automobiles, Oct. 11, 1909, 209 CTS 361.
98. Georg Jellinek, L’État moderne et son droit, vol. 1, trans. Georges Fardis (Paris:
V. Giard et E. Brière, 1911), 562– 63.
99. See Chapter 5.
100. For a good summation of the arguments for and against codification, see
Charles de Visscher, “La codification du droit international,” 6 RdC 325– 455 (1925),
386– 407.
101. Alphonse de Domin-Petrushevecz, Précis d’un code du droit international
(Leipzig : F. A. Brockhaus, 1861).
102. Johann Kaspar Bluntschli, Le droit international codifié, trans. M. C. Lardy
(Paris: Guillaumin, 1870).
103. Johann Kaspar Bluntschli, Das moderne Völkerrecht der civilisirten Staaten als
Rechtsbuch dargestellt (Nördlingen: C. H. Beck, 1868).
104. Pasquale Fiore, Il diritto internazionale codificato e la sua sanzione giuridica
(Rome: Unione tipografico-editrice, 1890).
105. On Field’s work, see Mark W. Janis, The American Tradition of International
Law: Great Expectations 1789–1914 (Oxford: Oxford University Press, 2004), 118–22.
106. Francis Lieber, Lieber’s Code and the Law of War, ed. Richard Shelly Hartigan
(Chicago, IL: Precedent, 1983).
107. Brussels projet on the Laws and Customs of War, Aug. 27, 1874, 1 (supp.) AJIL
96 (1907).
108. For a collection of the resolutions of the Institute up to 1916, see generally
James Brown Scott, ed., Resolutions of the Institute of International Law Dealing with
the Law of Nations (New York: Oxford University Press, 1916).
109. See James Brown Scott, The Hague Peace Conferences of 1899 and 1907, vol. 1
(Baltimore: Johns Hopkins University Press, 1909), 35–87; Tuchman, Proud Tower,
265–312; and Lyons, Internationalism, 338–54.
110. Tuchman, Proud Tower, 295.
111. International Convention for Adapting the Geneva Convention to Maritime
Warfare, July 29, 1899, 187 CTS 443.
112. Hague Convention on the Laws of War on Land, July 29, 1899, 187 CTS 429,
preamble.
113. Declaration Prohibiting the Use of Projectiles Diff using Asphyxiating Gases,
July 29, 1899, 187 CTS 453; Declaration Prohibiting the Use of Expanding Bullets, July
29, 1899, 187 CTS 459; and Declaration Prohibiting the Discharge of Projectiles from
Balloons, July 29, 1899, 187 CTS 456.
114. See Scott, Hague Peace Conferences, vol. 1, 88–751; and Tuchman, Proud Tower,
312–38.
115. Scott, Hague Peace Conferences, vol. 1, 169; and Dickinson, Equality of States,
183–84.
116. Scott, Hague Peace Conferences, vol. 1, 170.
117. Walther Schücking, The International Union of the Hague Conferences, trans.
Charles G. Fenwick (Oxford: Clarendon Press, 1918 [1912]), 209–22; and Frederick
Sherwood Dunn, The Practice and Procedure of International Conferences (Baltimore:
Johns Hopkins University Press, 1929), 123–34.
118. Schücking, International Union, 215.
119. Declaration Prohibiting the Discharge of Projectiles from Balloons, Oct. 18,
1907, 205 CTS 403.
120. Hague Convention III on the Opening of Hostilities, Oct. 18, 1907, 205 CTS
263.
121. Hague Convention V on Neutrality in Land Warfare, Oct. 18, 1907, 205 CTS
299; and Hague Convention XIII on Neutrality in Maritime War, Oct. 18, 1907, 205
CTS 395.
122. Hague Convention IX on Naval Bombardment, Oct. 18, 1907, 205 CTS 345.
123. Hague Convention XI on Certain Restrictions on Naval Capture, Oct. 18, 1907,
205 CTS 367.
124. Hague Convention VI on the Status of Enemy Merchant Ships at the Outbreak
of Hostilities, Oct. 18, 1907, 205 CTS 305; Hague Convention VII on the Conversion
of Merchant Ships into Warships, Oct. 18, 1907, 205 CTS 319; and Hague Convention
VIII on Automatic Submarine Mines, Oct. 18, 1907, 205 CTS 331.
125. Declaration of London, Feb. 26, 1909, 208 CTS 338.
127. See Chapter 5.
128. Westlake, International Law, vol. 1, 368.
129. Lyons, Internationalism, 355.
130. For a list of international lawyers active as arbitrators, and the arbitrations in
which they participated, see Lachs, Teacher, 183, n. 55.
131. International Convention for the Pacific Settlement of Disputes, July 29, 1899,
187 CTS 410.
132. Quoted in James Brown Scott, “The Proposed Court of Arbitral Justice,” 2 AJIL
772–810 (1908), 780.
133. Frederick W. Holls, The Peace Conference at the Hague and Its Bearings on In-
ternational Law and Policy (New York: Macmillan, 1900), 285–86.
134. Hague Convention XII on the Establishment of an International Prize Court,
Oct. 18, 1907, 205 CTS 381.
135. These were Austria-Hungary, Britain, France, Germany, Italy, Japan, Russia,
and the United States.
136. T. E. Holland, “Proposed Changes in Naval Prize Law,” 5 Proceedings of the
British Academy 145– 60 (1911–12), 148– 49.
137. Draft Convention for a Court of Arbitral Justice, 2 (supp.) AJIL 29– 43 (1908).
138. See Manley O. Hudson, The Permanent Court of International Justice, 1920–
1942: A Treatise (New York: Macmillan, 1943), 80–84.
139. See Chapter 7.
140. Convention for the Establishment of a Central American Court of Justice, Dec.
20, 1907, 206 CTS 78. On the court, see Nicolas Politis, La justice internationale (Paris:
Hachette, 1924), 139–55.
141. William Spence Robertson, Hispanic-American Relations with the United
States (New York: Oxford University Press, 1923), 134.
142. Nicaragua–U.S.A., Bryan-Chamorro Treaty, Aug. 5, 1914, 220 CTS 215.
143. Lars Schoultz, Beneath the United States: A History of U.S. Policy toward Latin
America (Cambridge, MA: Harvard University Press, 1998), 224–27.
144. Rudyard Kipling, “Recessional” (1897).
145. For existing writing on the subject, see William Everett Kane, Civil Strife in
Latin America: A Legal History of U.S. Involvement (Baltimore, MD: Johns Hopkins
University Press, 1971); and Andrew Graham-Yooll, Imperial Skirmishes: War and
Gunboat Diplomacy in Latin America (Oxford: Signal, 2002).
146. See Hurewitz, Middle East, vol. 1, 227–31.
147. Ellery C. Stowell, Intervention in International Law (Washington, DC: Byrne,
1921), 40– 41.
148. Great Britain–Greece, Convention for the Settlement of British Claims, July
18, 1850, 104 CTS 159. On the Don Pacifico affair, see Charles de Martens, Causes cé-
lèbres du droit des gens, 2nd ed., vol. 5 (Leipzig: F. A. Brockhaus, 1861), 395–531; and
Jasper Ridley, Lord Palmerston (London: Constable, 1970), 374–76, 379–89.
149. Carlos Calvo, Le droit international théorique et pratique précédé d’un exposé
historique des progrès de la science du droit des gens, 3rd ed., vol. 2 (Paris: Pedone-
Lauriel, 1880–81), 603– 4.
150. France-Mexico, Treaty of Peace and Friendship, Mar. 9, 1839, 88 CTS 345.
151. See Miriam Hood, Gunboat Diplomacy: Great Power Pressure in Venezuela,
1895–1905, 2nd ed. (London: Allen and Unwin, 1983).
152. Schoultz, Beneath the United States, 181.
153. Venezuelan Preferential Claims Case, 9 RIAA 99 (1904).
154. Boxer Indemnity Agreement, Sep. 7, 1901, 190 CTS 61.
155. Elihu Root, “The Basis of Protection to Citizens Residing Abroad,” 4 AJIL 517–
28 (1910).
156. Drago to Martin Garcia Merou, Dec. 29, 1902, [1903] FRUS 1–5; reprinted in 1
(supp) AJIL 1– 6 (1907).
157. See Luis M. Drago, “State Loans in Their Relation to International Policy,” 1
AJIL 692–726 (1907). See also Arthur P. Whitaker, The Western Hemisphere Idea: Its
Rise and Decline (Ithaca, NJ: Cornell University Press, 1954), 86–107.
158. Hague Convention II on the Limitation of Force for the Recovery of Contract
Debts, Oct. 18, 1907, 205 CTS 250.
159. Ibid., 87–88.
160. Woolsey, Introduction, 411.

161. Lassa Oppenheim, “The Science of International Law: Its Task and Method,” 2
AJIL 313–56 (1908), 355.
162. Ibid., 356.
163. On Schücking, see La Pradelle, Maîtres et doctrines, 337– 44.
164. Chickering, Imperial Germany, 177–78.
165. See Schücking, International Union.
Part IV. Between Yesterday and Tomorrow (1914– )

Epigraph: Wolfgang Friedmann, “The Disintegration of European Civilisation and
the Future of International Law: Some Observations on the Social Foundations of
Law,” 2 MLR 194–214 (1938), 213.
9. Dreams Born and Shattered

1. In support of the lawfulness of the Ruhr occupation was George A. Finch, “The
Legality of the Occupation of the Ruhr Valley,” 17 AJIL 724–33 (1923). Opposing the
lawfulness were Arnold D. McNair, “The Legality of the Occupation of the Ruhr,” 5
BYBIL 17–37 (1924); and Ernest J. Schuster, “The Question as to the Legality of the
Ruhr Occupation,” 18 AJIL 407–18 (1924).
2. The S.S. Wimbledon, PCIJ, ser. A, no. 1.
3. Franz von Liszt, “The Reconstruction of International Law,” 64 U. Penn. L. Rev.
765–73 (1916), 767.
4. See A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed. (Paris: Édi-
tions internationales, 1950), 371– 403.
5. See Chapter 7.
6. See Michael Streeter, Epitácio Pessôa (London: Haus, 2010).
7. They were Anzilotti, Bustamante, de Visscher, Hudson, Hurst, Koo, Pessôa,
Rolin-Jaequemyns, Schücking, and Winiarski.
8. Report of the Commission on the Responsibility of the Authors of the War and
on the Enforcement of Penalties, Mar. 29, 1919, 14 AJIL 95–154 (1920).
9. Ibid., 127–51.
10. Treaty of Versailles, June 26, 1919, 225 CTS 188, art. 231.
11. Ibid., art. 227.
12. Robert Lansing, “Some Legal Questions of the Peace Conference,” 13 AJIL 631–
50 (1919), 647– 48.
13. On the refusal of the Netherlands to extradite William II, see James Brown
Scott, “The Trial of the Kaiser,” in Edward Mandell House and Charles Seymour, eds.,
What Really Happened at Paris: The Story of the Peace Conference, 1918–1919, 231–58
(New York: Charles Scribner’s Sons, 1921), 240– 45.
14. Samantha Power, “A Problem from Hell”: America and the Age of Genocide (Lon-
don: Flamingo, 2002), 1–14. On the Armenian massacres, see Taner Akçam, A Shame-
ful Act: The Armenian Genocide and the Question of Turkish Responsibility, trans. Paul
Bessemer (New York: Metropolitan, 2006).
15. Treaty of Sèvres, Aug. 10, 1920, in Wilhelm G. Grewe, ed., Fontes Historiae Juris
Gentium: Sources Relating to the History of the Law of Nations, vol. 3 (Berlin: Walter
de Gruyter, 1995), 711.
16. See Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes
Tribunals (Princeton, NJ: Princeton University Press, 2000), 106– 46.
17. Treaty of Lausanne, July 24, 1923, 28 LNTS 115.
18. Charles G. Fenwick, “The Role of International Orga nization in International
Law,” 35 AJIL 524–27 (1941), 525.
19. League of Nations Covenant, art. 10.
20. Ibid., art. 16.
21. Ibid., art. 18. See Dionisio Anzilotti, Cours de droit international, vol. 1, trans.
Gilbert Gidel (Paris: Sirey, 1929), 374–92.
22. See, for example, Hersch Lauterpacht, Private Law Sources and Analogies of In-
ternational Law (London: Longmans, Green, 1927), 172–75.
23. Bolivia-Chile, Treaty of Peace, Friendship and Commerce, Oct. 20, 1904, 196
CTS 403. See Jean Ray, Commentaire du Pacte de la Société des Nations selon la poli-
tique et la jurisprudence des organes de la Société (Paris: Sirey, 1930), 562– 63.
24. Ray, Commentaire, 567.
25. Alfred Zimmern, The League of Nations and the Rule of Law 1918–1935 (Lon-
don: Macmillan, 1936), 259.
26. Ibid., 257– 60; David Hunter Miller, The Drafting of the Covenant, vol. 1 (New
York: G. P. Putnam’s Sons, 1928), 269; and vol. 2, 323–25.
27. Miller, Drafting of the Covenant, vol. 1, 461.
28. Ibid., 464– 65.
29. Ibid., vol. 2, 702– 4.
30. See Memo Miller to Wilson, Apr. 4, 1919, in ibid., vol. 1 413; and note by the
British delegation, Apr. 7, 1919, in ibid., 416.
31. For the preparatory work, see generally Advisory Committee of Jurist, Procès-
verbaux of the Proceedings of the Committee June 16th–July 24th 1920 (The Hague:
Van Langenhuysen Brothers, 1920). See also Manley O. Hudson, The Permanent
Court of International Justice, 1920–1942: A Treatise (New York: Macmillan, 1943),
93–129.
32. See Chapter 8.
33. Ole Spiermann, International Legal Argument in the Permanent Court of Inter-
national Justice: The Rise of the International Judiciary (Cambridge: Cambridge Uni-
versity Press, 2005), 140.
34. Ibid., 136.
35. 1921 LN Off.J. 313.

36. Ibid., 807–9.
37. Opinion of Judge McNair, Anglo-Iranian Oil Case (Great Britain v. Iran), 1952
ICJ Rep. 93, 118.
38. Opinion of Judge Oda, in Military and Paramilitary Activities (Nicaragua v.
U.S.A.) (Jurisdiction), 1984 ICJ Rep. 392, 501.
39. See Polish Postal Ser vice in Danzig, PCIJ, ser. B, No. 11 (1925); Jurisdiction of
Courts of Danzig, PCIJ, ser. B, No. 15 (1928); Free City of Danzig and the ILO, PCIJ,
ser. B, No. 18 (1930); Access to, or Anchorage in, the Port of Danzig, of Polish War
Vessels, PCIJ, ser. A/B, No. 43 (1931); Treatment of Polish Nationals and Other Per-
sons of Polish Origin or Speech in the Danzig Territory, PCIJ, ser. A/B, No. 44 (1932);
and Consistency of Certain Danzig Legislative Decrees with the Constitution of the
Free City, PCIJ., ser. A/B, No. 65 (1935).
40. Austria-Germany, Customs Union Protocol, Mar. 19, 1931, in Grewe, ed., Fon-
tes, vol. 3, 861.
41. Protocol on the Restoration of Austria, Oct. 4, 1922, 12 LNTS 405.
42. Customs Union Case (adv. Op.), PCIJ, ser. A/B, no. 41
43. See G. M. Gathorne-Hardy, A Short History of International Affairs 1920 to 1939,
3rd ed. (London: Oxford University Press, 1942), 338–39; and Michael Dunne, The
United States and the World Court, 1920–1935 (London: Pinter, 1988), 198–209.
44. See Treaty of Versailles, arts. 297, 304. On the functioning of these tribunals,
including issues of substantive law determined, see generally Rudolf Blühdorn, “Le
fonctionnement et la jurisprudence des tribunaux aribtreaux mixtes créés par les trai-
tés de Paris,” 41 RdC 137–244 (1932).
45. Germany-U.S.A., Claims Agreement, Aug. 10, 1922, 25 LNTS 357.
46. For reports of the most prominent cases, see generally 7 RIAA 21–391 and 8
RIAA 3– 468.
47. Mexico-U.S.A., General Claims Convention, Sep. 8, 1923, 4 RIAA 11; and
Mexico-U.S.A., Special Claims Convention, Sep. 10, 1923, 4 RIAA 779.
48. Mexico-U.S.A., Protocol on Claims, Apr. 24, 1934, 149 LNTS 49. On the expe-
rience of the special claims commission, see A. H. Feller, The Mexican Claims Com-
missions 1923–1934: A Study in the Law and Procedure of International Tribunals
(New York: Macmillan, 1935), 63– 69; and “Special Claims Commission,” 4 RIAA
773–75. For the two decisions made by the commission, see Santa Isabel Claims
(U.S.A. v. Mexico), 4 RIAA 783 (1926); and Russell Claim (U.S.A. v. Mexico), 4 RIAA
805 (1931).
49. Mexico-U.S.A., Convention Relating to Certain Unsettled Claims, Nov. 19,
1941, 125 UNTS 287. On the experience of the general commission, see Feller, Mexi-
can Claims Commissions, 56– 63; and “General Claims Commission,” 4 RIAA 3– 6.
50. France-Mexico, Convention of Sep. 25, 1924, 79 LNTS 417; Germany-Mexico,
Convention of Mar. 16, 1925, 52 LNTS 93; and Great Britain–Mexico, Claims Con-
vention, Nov. 19, 1926, 85 LNTS 51; Italy-Mexico, Claims Convention, Jan. 13,
1927, in Feller, Mexican Claims Commissions, 502–10; Mexico-Spain, Claims Con-

vention, Nov. 25, 1925, in ibid., 521–25. On the Belgium-Mexico Convention, see
ibid., 28, 43.
51. Panama-U.S.A., Convention of July 28, 1926, 138 LNTS 119.
52. Siam-U.S.A., Treaty of Amity and Commerce, Dec. 16, 1920, Protocol Concern-
ing Jurisdiction, 6 LNTS 292.
53. Japan-Siam, Treaty of Commerce and Navigation, Mar. 10, 1924, 31 LNTS 188,
Protocol.
54. See Francis Bowes Sayre, “The Passing of Extraterritoriality in Siam,” 22 AJIL
70–88 (1928).
55. France-Turkey, Capitulations, May 28, 1740, 36 CTS 41.
56. Treaty of Sèvres, Aug. 10, 1920, in Carnegie Endowment for International Peace,
Treaties of Peace 1919–1923, vol. 2 (New York: Carnegie Endowment for International
Peace, 1924), 787, art. 261.
57. Treaty of Lausanne, July 24, 1923, 28 LNTS 11, art. 28.
58. Montreux Convention, May 8, 1937, 182 LNTS 37.
59. Wesley R. Fishel, The End of Extraterritoriality in China (Berkeley, CA: Univer-
sity of California Press, 1952), 109–26.
60. Circular to Foreign Legations at Tehran, May 10, 1927, in John W. Wheeler-
Bennett, ed., Documents on Foreign Affairs 1928 (London: Oxford University Press,
1929), 200.
61. Belgium-China, Preliminary Treaty of Amity and Commerce, Nov. 22, 1928, 87
LNTS 287, art. 2.
62. Fishel, End of Extraterritoriality, 109–29, 145– 49; and Thomas F. Millard, The
End of Extraterritoriality in China (Shanghai: A.B.C. Press, 1931), 78–102.
63. Treaty of Berlin, July 13, 1878, 153 CTS 171, art. 44.
64. On minority protection, see André Mandelstam, “La protection des minorités,”
1 RdC 363–519 (1923).
65. See Treaty of St.-Germain-en-Laye, Sep. 10, 1919, 226 CTS 8, arts. 62– 69; Treaty
of Neuilly, Nov,. 27, 1919, 226 CTS 332, arts. 49–57; Treaty of Trianon, June 4, 1920,
Carnegie Endowment for International Peace, Treaties of Peace, vol. 1, 457, arts. 54–
60; and Treaty of Lausanne, July 24, 1923, 28 LNTS 11, arts. 37– 44.
66. Allied Powers–Poland, Minorities Treaty, June 28, 1919, 225 CTS 412; Treaty of
St.-Germain-en-Laye with Czechoslovak ia, Sep. 10, 1919, 226 CTS 170, arts. 7–14;
Treaty of Peace Regarding Yugoslavia, Sep. 10, 1919, 226 CTS 182, arts. 7–11; Allied
Powers–Romania, Minorities Treaty, Dec. 9, 1919, 226 CTS 447; and Greece–League
of Nations, Treaty on Protection of Minorities, Aug. 10, 1920, 28 LNTS 244.
67. Greece-Turkey, Convention Concerning the Exchange of Populations, Jan. 30,
1923, 32 LNTS 75.
68. Germany-Poland, Convention on Upper Silesia, May 15, 1922, in Karl Strupp,
ed., Documents pour server à l’histoire du droit des gens, 2nd ed., vol. 4 (Berlin: H.
Sack, 1923), 719, arts. 64–158.
69. German Settlers in Poland (Germany v. Poland), PCIJ, ser. B, No. 6 (1923); and
Acquisition of Polish Nationality (Germany v. Poland), PCIJ, ser. B, No. 7 (1923).
70. See Certain German Interests in Polish Upper Silesia (Germany v. Poland)
(Merits), PCIJ ser. A, No. 7 (1926); Rights of Minorities in Upper Silesia (Minority
Schools) (Germany v. Poland), PCIJ, ser. A, No. 15 (1928); and Access to German
Minority Schools in Upper Silesia (Germany v. Poland), PCIJ, ser. A/B, No. 40
(1931).
71. Minority Schools in Albania (adv. op.), PCIJ, ser. A/B, No. 64 (1933).
72. Convention on Aerial Navigation, Oct. 13, 1919, 11 LNTS 173.
73. Hague Rules of Aerial Warfare, in Adam Roberts and Richard Guelff, eds., Docu-
ments on the Laws of War, 3rd ed. (Oxford: Oxford University Press, 2000), 139–53.
74. Geneva Protocol for the Prohibition of Asphyxiating Gases, June 17, 1925, 94
LNTS 65.
75. See, for example, the declarations of France, Belgium, Romania, Britain, India,
Canada, the Soviet Union, South Africa, Australia, and New Zealand, 94 LNTS 67–71.
76. Geneva Convention on the Wounded and Sick in the Field, July 27, 1929, 118
LNTS 303; and Geneva Convention on Prisoners of War, July 27, 1929, 118 LNTS 343.
On the earlier Geneva Conventions, see Chapter 8.
77. London Naval Protocol, Nov. 6, 1936, 173 LNTS 353.
78. Pact of Paris, Aug. 27, 1928, 94 LNTS 57.
79. James T. Shotwell, War as an Instrument of National Policy and Its Renunciation
in the Pact of Paris (London: Constable, 1929), 203–13.
80. See Chapter 10, on the Nuremberg Trials.
81. Advisory Committee of Jurists, Procès-verbaux, Resolution 2, 748. On Des-
camps, see La Pradelle, Maîtres et doctrines, 225–35.
82. Convention for the Creation of an International Criminal Court, Nov. 16, 1937,
in UN Secretary-general, Historical Survey of the Question of International Criminal
Jurisdiction, UN Doc. A/CN.4/7/Rev.1 (1949), 88–97. See also Hudson, Permanent
Court, 85–89.
83. See Walther Schücking, Der Kodifikationsversuch betreffend die Rechtsverhäl-
nisse des Küstenmeeres und die Gründe seines Scheiterns (Breslau: Ferdinand Hirt,
1931). For support for this position, see Philip Marshall Brown, “International Law
Reparations,” 28 AJIL 330–34 (1934).
84. Elihu Root, “The Codification of International Law,” 19 AJIL 675–84 (1925). See
also, to the same effect, Pittman Potter’s review of Schücking, Kodifikationsversuch, in
26 AJIL 446– 47 (1932).
85. For the full records of the Hague Conference, see generally Shabtai Rosenne,
ed., League of Nations Conference for the Codification of International Law, 4 vols.
(Dobbs Ferry, NY: Oceana, 1975).
86. Hague Convention on the Conflict of Nationality Laws, Apr. 12, 1930, 179 LNTS
89.
87. Frederick Sherwood Dunn, The Protection of Nationals: A Study in the Applica-
tion of International Law (Baltimore, MD: Johns Hopkins University Press, 1932),
61– 66.
88. Frederic Kirgis, The American Society of International Law’s First Century
1906–2006 (Leiden: Martinus Nijhoff, 2006), 93–97. For the texts of the conventions,
see John P. Grant and J. Craig Barker, eds., The Harvard Research in International
Law: Contemporary Analysis and Appraisal (Buffalo, NY: William S. Hein, 2007),
433–540.
89. See Brown, “Reparations,” 331.
90. 38 IDI Annuaire (1934), 137.
91. Quoted in 21 AJIL 645 (1927).
92. Karl Strupp, “Règles générales du droit de la paix,” 47 RdC 259–591 (1934), 298.
93. Ibid., 298–99. (Emphasis in the original.)
94. The S.S. Lotus (France v. Turkey), PCIJ, ser. A, No. 10.
95. See Bruno Simma and Andreas L. Paulus, “The Responsibility of Individuals for
Human Rights Abuses in Internal Confl icts: A Positivist View,” 93 AJIL 302–16 (1999),
304.
96. See Josef Kunz, “Natural-Law Thinking in the Modern Science of International
Law,” 55 AJIL 951–58 (1961), 956.
97. See Clemens Jabloner, “Kelsen and His Circle: The Viennese Years,” 9 EJIL 368–
85 (1998), 369.
98. Hans Kelsen, Principles of International Law, 2nd ed., rev. and ed. Robert W.
Tucker (New York: Holt, Rinehart and Winston, 1966), 558.
99. Ibid., 441.
100. Ibid., 446.
101. Anzilotti, Cours, vol. 1, 43– 45, 67– 69, 87–88, 161– 62. See also Lauterpacht,
Private Law Sources, 58–59; and Giorgio Gaja, “Positivism and Dualism in Dionisio
Anzilotti,” 3 EJIL 123–38 (1992), 127–29.
102. See Chapter 6.
103. Kelsen, Principles, 438– 40.
104. Ibid., 180.
105. Ibid., 247.
106. Ibid., 571.
107. Ibid., 569.
108. Hans Kelsen, Die Staatslehre des Dante Alighieri (Vienna: F. Deuticke, 1905).
On the monist theory, see Hans Kelsen, General Theory of Law and the State, trans.
Anders Wedberg (New York: Russell and Russell, 1961), 363–88.
109. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 230.
110. On the core features of liberalism in the area of international affairs, see Anne-
Marie Slaughter, “International Law and International Relations,” 285 RdC 9–249
(2000), 39– 43.
111. Torbjørn Knutsen, A History of International Relations Theory, 2nd ed. (Man-
chester: Manchester University Press, 1997), 193; Paul Guggenheim, “International Re-
lations and Public International Law,” in Paul Guggenheim and Pitman B. Potter, The
Science of International Law, International Relations, and Organization, 7–19 (Geneva:
Geneva Research Centre, 1940), 7–8; and Chris Brown and Kirsten Ainley, Understand-
ing International Relations, 4th ed. (Basingstoke: Palgrave Macmillan, 2009), 19–23.
112. Christian Reus-Smit, “The Strange Death of Liberal International Theory,” 12
EJIL 573–93 (2001), 577. On the early years of the discipline, see Knutsen, History,
211–16.
113. See generally Nicolas Politis, La neutralité et la paix (Paris: Hachette, 1935).
114. See Lauterpacht, Private Law Sources, 51–71.
115. Hersch Lauterpacht, “The Grotian Tradition in International Law,” 23 BYBIL
1–53 (1946), 4–5.
116. Hersch Lauterpacht, “Règles générales du droit de la paix,” 62 RdC 95– 422
(1937), 104.
117. Ibid., 126–28.
118. See Chapter 7.
119. See La Pradelle, Maîtres et doctrines, 423– 40.
120. Dietrich Schindler, “Contribution à l’étude des facteurs sociologiques et psy-
chologiques du droit international,” 46 RdC 229–326 (1933).
121. Wolfgang Friedmann, “The Disintegration of European Civilisation and the
Future of International Law: Some Observations on the Social Foundations of Law,” 2
MLR 194–214 (1938), 213.
122. Nicolas Politis, The New Aspects of International Law (Washington, DC: Carn-
egie Endowment for International Peace, 1928), 15.
123. Ibid., 4.
124. Ibid., 8–12.
125. Ibid., 11–14.
126. Georges Scelle, Précis de droit des gens: Principes et systématique, vol. 1 (Paris:
Sirey, 1932), 4.
127. Ibid., 5.
128. Ibid., 35–37.
129. Ibid., 37– 42.
130. Ibid., 55–57.
131. See Antonio Cassese, “Remarks on Scelle’s Theory of ‘Role Splitting’ (dédouble-
ment fonctionnel) in International Law,” 1 EJIL 210–31 (1990).
132. For Kelsen’s support, in substance, of the idea of dédoublement fonctionnel, see
Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag
zu einer reinen Rechtslehre (Tübingen: J. C. B. Mohr, 1920), 144– 49.
133. Georges Scelle, “Règles générales du droit de la paix,” 46 RdC 327–703 (1933), 690.
134. Scelle, Précis, vol. 2, 547.
135. Ibid.
136. 28 AJIL 411 (1934).

138. Martin Griffiths, Fifty Key Thinkers in International Relations (London: Rout-
ledge, 1999), 191–94. See also David Mitrany, The Functional Theory of Politics (Lon-
don: Robertson, 1975).
139. Pitman B. Potter, An Introduction to the Study of International Organization
(New York: Century, 1922).
140. Pitman B. Potter, “Bases and Effectiveness of International Law 1968,” 63 AJIL
270–72 (1969), 271.
141. Pitman B. Potter, “Obstacles and Alternatives to International Law,” 53 AJIL
647–51 (1959), 649–50.
142. Harold Lasswell, “The Problem of World-unity: In Quest of a Myth,” 44 Int’l J.
Ethics 68–93 (1933), 68.
143. Ibid., 69.
144. Ibid., 93.
147. Louis Le Fur, “La théorie du droit naturel depuis le XVIIe siècle et la doctrine
moderne,” 18 RdC 259– 442 (1927).
148. On Wolff, see Chapter 5. On Aquinas, see Chapter 2.
149. Le Fur, “Théorie,” 385.
150. On Verdross, see Ernest Engelberg, “Les bases idéologiques de la nouvelle con-
ception de droit international de M. Alfred von Verdross,” 46 RGDIP 37–52 (1939).
151. Alfred Verdross, “Le fondement du droit international,” 16 RdC 247–323
(1927), 283–86. (Emphasis in the original.)
152. On this phase of Kaufmann’s career, see Martti Koskenniemi, The Gentle Civi-
lizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge: Cam-
153. See Chapter 6.
154. See Erich Kaufmann, “Règles générales du droit de la paix,” 54 RdC 309– 620
(1935), 574–88.
155. On Kaufmann’s change of outlook, see Manfred Lachs, The Teacher in Interna-
tional Law (Teachings and Teaching) (The Hague: Martinus Nijhoff, 1982), 127–28; and
Stephen Cloyd, “Erich Kaufmann,” in Arthur D. Jacobson and Bernhard Schlink, eds.,
Weimar: A Jurisprudence of Crisis, 189–94 (Berkeley, CA: University of California
Press, 2000), 191–92.
156. Kaufmann, “Règles générales,” 314.
157. Ibid., 319.
158. Ibid., 398.
159. Ibid., 491–92.
160. Ibid., 314.
161. Ibid., 319.
162. For criticism of Kaufmann’s ideas from the standpoint of more traditional
natural law, see Lauterpacht, “Règles générales,” 123–26.
163. See, for example, James Brown Scott, The Spanish Origin of International Law:
Francisco de Vitoria and His Law of Nations (Oxford: Clarendon Press, 1934); and
James Brown Scott, “Francisco Suárez: His Philosophy of Law and of Sanctions,” 22
Georgetown L. J. 405–518 (1934).
164. J. L. Brierly, The Law of Nations: An Introduction to the International Law of
Peace, 1st ed. (Oxford: Clarendon Press, 1928), 9.
165. Ibid., 16.
166. Lauterpacht, “Règles générales,” 164– 66.
167. Quoted in V. I. Lenin, On the Foreign Policy of the Soviet State (Moscow: Prog-
ress, 1964), 11–14.
168. Ibid., 17.
169. See ibid., 156–76; Mintauts Chakste, “Soviet Concepts of the State, Interna-
tional Law, and Sovereignty,” 43 AJIL 21–36 (1949), 23–30; Percy E. Corbett, Law in
Diplomacy (Princeton, NJ: Princeton University Press, 1959), 91–94. and Zofia Ma-
clure, “Soviet International Legal Theory—Past and Present,” 5 Fletcher Forum 49–73
(1981), 49–54.
170. T. A. Taracouzio, “The Effect of Applied Communism on the Principles of In-
ternational Law,” 28 ASIL Procs. 105–20 (1934), 107.
171. Eugene A. Korovin, “Soviet Treaties and International Law,” 22 AJIL 753– 63
(1928), 753.
172. Robert W. Slusser and Jan F. Triska, “Professor Krylov and Soviet Treaties,” 51
AJIL 766–70 (1957), 702. On the tie between socialist legal thought and the common
will approach, particularly that of Triepel, see Grigory Tunkin, “Politics, Law and
Force in the Interstate System,” 219 RdC 227–395 (1989), 262– 63.
173. Ibid., 702.
174. Ivo Lapenna, Les conceptions soviétiques de droit international public (Paris: A.
Pedone, 1954), 217–18.
175. Hans Kelsen, The Communist Theory of Law (London: Stevens and Sons, 1955)
156–57.
176. Lapenna, Conceptions soviétiques, 71.
177. See Kelsen, Communist Theory, 152–56; John N. Hazard, “Cleansing Soviet In-
ternational Law of Anti-Marxist Theories,” 32 AJIL 244–52 (1938); Corbett, Law in
Diplomacy, 94–98; and Lapenna, Conceptions soviétiques, 74–78, 94–103.
178. E. B. Pashukanis, “International Law,” in W. E. Butler, ed., Russian Legal The-
ory, 541– 48 (Aldershot: Dartmouth, 1996 [1926–27]).
179. Ibid., 550.
180. Ibid., 545– 46.
181. Slusser and Triska, “Professor Krylov,” 704– 06, 723.
182. Hazard, “Cleansing,” 248.
183. Lapenna, Conceptions soviétiques, 92–94, 130–32.
184. See ibid., 82–92.

185. Ibid., 32– 44.
186. See, to this effect, Friedmann, “Disintegration,” 196–97.
187. Ugo Spirito, “Corporativism as Absolute Liberalism and Absolute Socialism,”
from 6 New Studies in Law, Economics, and Politics 285–98 (1932); excerpted in
Roger Griffi n, ed., Fascism (Oxford: Oxford University Press, 1995), 68– 69.
188. Lawrence Preuss, “National Socialist Conceptions of International Law,” 29
Am. Pol. Sci. Rev. 594– 609 (1935), 603–5.
189. Ibid., 605–7.
190. Martyn Housden, Helmut Nicolai and Nazi Ideology (London: Macmillan,
1992), 95.
191. Detlev F. Vagts, “International Law in the Th ird Reich,” 84 AJIL 661–704
(1990), 677.
192. Jacques Fournier, La conception nationale-socialiste du droit des gens (Paris: A.
Pedone, 1939), 70.
193. Michael Stolleis, A History of Public Law in Germany 1914–1945, trans. Thomas
Dunlap (Oxford: Oxford University Press, 2004), 428.
194. Fournier, Conception, 190–94.
195. See Aristotle A. Kallis, Fascist Ideology: Territory and Expansionism in Italy
and Germany, 1922–1945 (London: Routledge, 2000), 48–56.
196. Michael Stolleis, “International Law under German National Socialism: Some
Contributions to the History of Jurisprudence 1933–1945,” in Michael Stolleis and
Masaharu Yanagihara, eds., East Asian and European Perspectives on International Law,
203–13 (Baden-Baden: Nomos, 2004), 208.
197. Vagts, “International Law,” 682.
198. Stolleis, History, 422.
200. 332 Hansard (H.C.) (ser. 5), Feb. 22, 1938, 227. See also S. Engel, League Re-
form: An Analysis of Official Proposals and Discussions, 1936–1939 (Geneva: Geneva
Research Centre, 1940), 154–59.
201. Nils Orvik, The Decline of Neutrality 1914–1941 (Oslo: Johan Grundt Tanum,
1953), 11.
202. See 44 RGDIP 621 (1937); and David Owen Kieft, Belgium’s Return to Neutral-
ity: An Essay in the Frustrations of Small Power Diplomacy (Oxford: Clarendon Press,
1972).
203. See, for example, George W. Keeton and Georg Schwarzenberger, Making In-
ternational Law Work, 2nd ed. (London: Stevens and Sons, 1946), 88–92.
204. John Bassett Moore, “An Appeal to Reason,” 11 Foreign Affairs 547–88 (1933).
205. Edwin M. Borchard, “Neutrality and Unneutrality,” 32 AJIL 778–82 (1938),
780.
206. Edwin M. Borchard, “Neutrality and Sanctions,” in Francis James Brown,
Charles Hodges and Joseph Slabey, eds., Contemporary World Politics: An Introduction
to the Problems of International Relations, 487–502 (New York: John Wiley and Sons,
1939), 491.
207. Ibid., 500.
208. Edwin M. Borchard, “The ‘Enforcement’ of Peace by ‘Sanctions’,” 27 AJIL 518–
25 (1933).
209. E. H. Carr, Twenty Years’ Crisis 1919–1939: An Introduction to the Study of
International Relations, 2nd ed. (London: Macmillan, 1946), 161.
210. Georg Schwarzenberger, Power Politics: An Introduction to the Study of Inter-
national Relations and Post-War Planning (London: Jonathan Cape, 1941), 315.
211. See 24 ASIL Procs. 95–114 (1930).
212. Engel, League Reform, 156–57.
213. 1932 LN Off. J. (pt. 1) 384; and Assembly Res., Mar. 11, 1932, LN Off. J., Special
Supp. No. 101, 87–88.
214. Montevideo Convention, Dec. 26, 1933, 165 LNTS 19, art. 11.
215. ILA, Report of the 38th Conference (1934), 66– 68.
216. Hersch Lauterpacht, “The Pact of Paris and the Budapest Articles of Interpreta-
tion,” 20 Grotius Soc. Trans. 178–204 (1934).
217. Robert H. Jackson, “Address to the Inter-American Bar Association,” 35 AJIL
348–59 (1941).
218. Ibid., 350.
219. Quincy Wright, “The Lend-Lease Bill and International Law,” 35 AJIL 305–14
(1941).
220. Edwin M. Borchard, “War, Neutrality and Non-Belligerency,” 35 AJIL 618–25
(1941).
10. Building Anew

1. Les Daniels, DC Comics: A Celebration of the World’s Favorite Comic Book Heroes
(New York: Billboard, 1995), 65.
2. Thomas Hughes, “The Twilight of Internationalism,” 61 Foreign Policy 25– 48
(1985–86), 37.
3. Peter H. Maguire, Law and War: International Law and American History, 2nd
ed. (New York: Columbia University Press, 2010), 108–9. On the opposition of Lan-
sing and Scott to the idea at the Paris Peace Conference, see Chapter 9.
4. Charter of the International Military Tribunal, Aug. 8, 1945, 82 UNTS 279.
5. See Chapter 9.
6. Bradley F. Smith, Reaching Judgment at Nuremberg (London: André Deutsch,
1977), 58–59; and Ann Tusa and John Tusa, The Nuremberg Trial (London: Macmil-
lan, 1983), 87.
7. See A. N. Trainin, Hitlerite Responsibility under Criminal Law, ed. A. Y. Vishin-
ski; trans. Andrew Rothstein (London: Hutchinson, 1945), 42– 46.
8. Stephanie Steinle, “Georg Schwarzenberger (1908–1991),” in Jack Beatson and

Reinhard Zimmermann, eds., Jurists Uprooted: German- Speaking Emigré Lawyers
in Twentieth- Century Britain, 663– 80 (Oxford: Oxford University Press, 2004),
672.
9. Pact of Paris, Aug. 27, 1928, 94 LNTS 57. See also Chapter 9.
10. In re Goering (Int’l Military Trib.), 13 ILR 203 (1946), 208–9.
11. Ibid., 207–9.
12. Leo Gross, “The Criminality of Aggressive War,” 41 Am. Pol. Sci. Rev. 205–25
(1947), 221.
13. Hans Kelsen, “Will the Judgment in the Nuremberg Trial Constitute Precedent
in International Law?” 1 ICLQ 153–72 (1947), 165.
14. Quincy Wright, “The Law of the Nuremberg Trial,” 41 AJIL 38–72 (1947), 47.
15. Special Proclamation—Establishment of an International Military Tribunal for
the Far East, Jan. 19, 1946, in Neil Boyster and Robert Cryer, eds., Documents on the
Tokyo International Military Tribunal: Charter, Indictment and Judgments (Oxford:
Oxford University Press, 2008), 5. For the text of the tribunal’s charter, see Charter for
the International Military Tribunal for the Far East, Apr. 26, 1946, in ibid., 7.
16. Dissent of Judge Bernard, in ibid., 675–76.
17. See generally In re Hirota (Int’l Military Tribunal for the Far East), 15 ILR 356
(1948).
18. UN Charter, art. 2(4).
19. Legality of Nuclear Weapons (adv. op.), 1996 ICJ Rep. 226, para. 46.
20. UN Charter, art. 51.
21. Ibid., art. 102.
22. Ibid., art. 13(1).
23. Genocide Convention, Dec. 9, 1948, 78 UNTS 277.
24. G.A. Res. 217 A (III) (1948).
25. 2 [1954] YB ILC, UN Doc. A/CN.4/SER.A/1954/Add.1, 151–52.
26. Geneva Convention I on Wounded and Sick on Land, Aug. 12, 1949, 75 UNTS
31; Geneva Convention II on Wounded and Sick at Sea, Aug. 12, 1949, 75 UNTS 85;
Geneva Convention III on Prisoners of War, Aug. 12, 1949, 75 UNTS 135; and Geneva
Convention IV on Civilians, Aug. 12, 1949, 75 UNTS 287.
27. Convention on the Status of Refugees, July 28, 1951, 189 UNTS 137.
28. G.A. Res. 897 (IX) (1954). See also G.A. Res. 1186 (XII) (1957).
29. G.A. Res. 3314 (XXIX) (1974).
30. On the revival of the project in the 1990s, see Chapter 11.
31. Hersch Lauterpacht, “The International Protection of Human Rights,” 70 RdC
1–108 (1947), 100– 03.
32. Proceedings of the House of Delegates, 35 ABA J. 957– 60 (1949).
33. Marjorie M. Whiteman, ed., Digest of International Law, vol. 13 (Washington,
DC: Government Printing Office, 1968), 668– 69.
34. See generally Tae-ho Yoo, The Korean War and the United Nations: A Legal and
Diplomatic Historical Study (Louvain: Institut des Sciences Politiques, 1964). See also
William Stueck, The Korean War: An International History (Princeton, NJ: Princeton
University Press, 1995), which contains much information on the UN’s role in the
struggle.
35. G.A. Res. 267 (III) (1948). See also a report by a committee of the General As-
sembly on the problem: U.N. Doc. A/578 (1949).
36. Letter Korovin to American Society of International Law, July 24, 1951, 45 AJIL
780 (1951).
37. Conditions of Admission (adv. op.), 1948 ICJ Rep. 57.
38. Competence of the [General] Assembly for Admission (adv. op.), 1950 ICJ Rep.
4.
39. See Treaty of Peace with Bulgaria, Feb. 10, 1947, 41 UNTS 21, art. 2; Treaty of
Peace with Hungary, Feb. 10, 1947, 41 UNTS 135, art. 2; and Treaty of Peace with Ro-
mania, Feb. 10, 1947, 42 UNTS 3, art. 3.
40. Interpretation of Peace Treaties (Second Phase) (adv. op.), 1950 ICJ Rep. 221.
41. G.A. Res. 385 (V) (1950).
43. Evan Luard, A History of the United Nations, vol. 2 (New York: Macmillan,
1989), 387–91.
44. Sergei Kovalev, “Sovereignty and International Duties of Socialist Countries,”
Pravda, Sep. 25, 1968; translated and reprinted in 7 ILM 1323–25 (1968). See also Rob-
ert A. Jones, The Soviet Concept of “Limited Sovereignty” from Lenin to Gorbachev: The
Brezhnev Doctrine (Basingstoke: Macmillan, 1990), 153–73.
45. John N. Hazard, “Renewed Emphasis upon a Socialist International Law,” 65
AJIL 142– 48 (1971), 143.
46. See Chapter 9.
47. Hazard, “Renewed Emphasis,” 144– 46.
48. Kovalev, “Sovereignty.”
49. On the solidarist aspects of the Brezhnev Doctrine, see Jones, Soviet Concept of
“Limited Sovereignty,” 125–34.
50. George P. Shultz, Turmoil and Triumph: My Years as Secretary of State (New
York.: Charles Scribner’s Sons, 1993), 1129.
51. Jeane J. Kirkpatrick and Allan Gerson, “The Reagan Doctrine, Human Rights,
and International Law,” in Louis Henkin et al., Right v. Might: International Law and
the Use of Force (New York: Council on Foreign Relations, 1991), 20.
52. See Chapter 7.
53. Kirkpatrick and Gerson, “Reagan Doctrine,” 21.
54. Military and Paramilitary Activities (Nicaragua v. U.S.A.) (Merits), 1986 ICJ
Rep. 14, paras. 206–9.
55. Ibid., para. 206.
56. Ibid., para. 207.
57. Ibid., para. 209.

58. Dissenting op. by Judge Oda, Military and Paramilitary Activities (Nicaragua v.
U.S.A.) (Jurisdiction), 1984 I.C.J. Rep. 392, 493. On the Optional Clause to the I.C.J.
Statute, see Chapter 9.
59. See Corfu Channel Case (Merits) (Great Britain v. Albania), 1949 ICJ Rep. 4.
60. International Status of South-West Africa (adv. op.), 1950 ICJ Rep. 128.
61. Certain Expenses of the UN (adv. op.), 1962 ICJ Rep. 151.
62. Namibia Opinion (adv. op.), 1971 ICJ Rep. 16.
63. Statement of under-secretary of state for Foreign and Commonwealth Affairs,
Oct. 19, 1971, 832 (ser. 5) Hansard (H.C.) 678–83.
64. See, for example, John King Gamble Jr. and Dana D. Fischer, The International
Court of Justice: An Analysis of a Failure (Lexington, MA: D. C. Heath, 1976).
65. Richard N. Gardner, Sterling-Dollar Diplomacy in Current Perspective: The Ori-
gins and Prospect of Our International Economic Order, 3rd ed. (New York: Columbia
66. General Agreement on Tariffs and Trade (GATT), Oct. 30, 1947, 55 UNTS
187.
67. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS
171; and International Covenant on Economic, Social, and Cultural Rights, Dec. 16,
1966, 993 UNTS 3.
68. Optional Protocol to Civil and Political Covenant, Dec. 16, 1966, 999 UNTS
302.
69. John N. Hazard, “Legal Research on ‘Peaceful Co-existence’,” 51 AJIL 63–71
(1957), 66.
70. G.A. Res. 2625 (XXV) (1970).
71. See, for example, Military and Paramilitary Activities (Nicaragua v. U.S.A.),
para. 188; Consequences of the Wall (adv. op.) 2004 ICJ Rep. 136, para. 87; Armed
Activities in the Congo (Congo v. Uganda), 2005 ICJ Rep. 168, para. 162; and Unilat-
eral Declaration of Independence of Kosovo (adv. op.), 2010 ICJ Rep. 403, para. 80.
72. Antarctic Treaty, Dec. 1, 1959, 402 UNTS 71.
73. Treaty on Outer Space, Jan. 27, 1967, 610 UNTS 205.
74. Agreement Governing Activities on the Moon, Dec. 5, 1979, 1363 UNTS 3.
75. Treaty on the Rescue of Astronauts, Apr. 22, 1968, 672 UNTS 119.
76. See Hersch Lauterpacht, “Survey of International Law in Relation to the Work of
Codification of the International Law Commission,” in Hersch Lauterpacht, Interna-
tional Law: The General Works, vol. 1, ed. E. Lauterpacht, 445–530 (Cambridge: Cam-
bridge University Press, 1970).
77. 2 [1956] YB ILC, UN Doc. A/CN.4/SER.A/1956/Add.1, 256– 64.
78. Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 516
UNTS 205; Convention on the High Seas, Apr. 29, 1958, 450 UNTS 11; Convention on
Fishing, Apr. 29, 1958, 559 UNTS 285; and Convention on the Continental Shelf, Apr.
29, 1958, 499 UNTS 311.

80. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 500 UNTS 223.
82. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331.
83. See Reservations to the Genocide Convention (adv. op.), 1951 ICJ Rep. 15.
84. Vienna Convention on the Law of Treaties, art. 19.
85. Draft Articles on Most-Favoured-Nation Clauses, 2 (pt. 2) [1978] YB ILC, UN
Doc. A/CN.4/SER.A/1978/Add.1 (Part 2), 16–74.
86. Draft Articles and Commentary on Nationality in Relation to State Succession,
2 (pt. 2) [1999] YB ILC, UN Doc. A/CN.4./SER.A/1999/Add.1 (Part 2), 23– 47.
87. Draft Articles on Diplomatic Protection with Commentaries, GAOR (61st sess.),
Supp. No 10, UN Doc. A/61/10 (2006), 24–100.
88. Lauterpacht, “International Protection.”
89. Maurice Bourquin, “Pouvoir scientifique et droit international,” 70 RdC 331–406
(1947).
90. H. Donnedieu de Vabres, “Le procès de Nuremberg devant les principes mod-
ernes du droit pénal international,” ibid., 447–582.
91. Roberto Ago, “Science juridique et droit international,” 90 RdC 851–958 (1956),
954.
92. Ian Brownlie, “General Course on Public International Law,” 255 RdC 9–227
(1995), 36.
93. Ibid., 30.
94. Ibid., 34–35.
95. Georg Schwarzenberger, The Inductive Approach to International Law (London:
Stevens, 1965), 6.
96. Ibid., 41.
97. Ibid., 5.
98. Ibid., 13.
99. Ibid., 90. For strikingly similar views by Anzilotti, see Dionisio Anzilotti, Cours
de droit international, vol. 1, trans. Gilbert Gidel (Paris: Sirey, 1929), 91–93.
100. Gaetano Arangio-Ruiz, “The Concept of International Law and the Theory of
International Organization,” 137 RdC 629–742 (1972), 652.
101. Ibid., 651–53.
102. Ibid., 670–71.
103. Ibid., 654.
104. Ibid., 655.
105. Arangio-Ruiz, in Antonio Cassese and Joseph H. H. Weiler, eds., Change and
Stability in International Law-Making (Berlin: Walter de Gruyter, 1988), 102.
106. Prosper Weil, in Cassese and Weiler, eds., Change and Stability, 12.
107. Prosper Weil, “Towards Relative Normativity in International Law?” 77 AJIL
413– 42 (1983), 416–17.
108. Ibid., 418.
109. Ibid., 419.

110. Ibid., 420.
111. Michel Virally, “Panorama du droit international contemporain: Cours général
de droit international public,” 183 RdC 9–382 (1983), 180–86.
112. See, for example, American Law Institute, Restatement of the Foreign Relations
Law of the United States Third (St. Paul, MN: ALI, 1987), § 102, comment d, 25–26.
113. See Ian Brownlie, Principles of Public International Law, 7th ed. (Oxford: Oxford
114. Asylum Case (Peru v. Colombia), 1950 ICJ Rep. 266, 277–78; and Anglo-
Norwegian Fisheries Case (Great Britain v. Norway), 1951 ICJ Rep. 116, 131. For un-
equivocal support by an individual World Court judge, see opinion of Judge Lachs, in
North Sea Continental Shelf Cases (West Germany v. Netherlands, Denmark), 1969
ICJ Rep. 3, 229.
115. Serge Krylov, “Les notions principales du droit des gens: La doctrine soviétique
du droit international,” 70 RdC 407–76 (1947).
116. Grigory Tunkin, “Politics, Law and Force in the Interstate System,” 219 RdC
227–395 (1989), 258.
117. Krylov, “Notions principales,” 435.
118. Alexander Yankov, in Cassese and Weiler, eds., Change and Stability, 114.
119. Institute of State and Law (Academy of Sciences of the U.S.S.R.), International
Law: A Textbook for Use in Law Schools, ed. F. I. Kozhevnikov; trans. Dennis Ogden
(Moscow: Progress, 1962).
120. Ibid., 55.
121. Ibid., 57.
122. Ibid.
123. V. I. Lisovsky, International Law (Kiev: Kiev University Press, 1955); quoted by
John N. Hazard, in 51 AJIL 135–36 (1957), 135.
124. Whiteman, Digest, vol. 5, 834–36.
125. Institute of State and Law, International Law, 402.
126. Quincy Wright, “Legal Positivism and the Nuremberg Judgment,” 42 AJIL
405–14 (1948), 414.
127. Ibid., 407.
128. Ibid.
129. Lauterpacht, “International Protection,” 103– 4.
130. Ibid., 105.
131. See Chapter 11, on critical legal studies.
132. See generally Alejandro Álvarez, Le droit international nouveau dans ses rapports
avec la vie actuelle des peuples (Paris: Pedone, 1959).
133. Dissenting opinion of Judge Álvarez in Status of South West Africa (adv. op.),
1950 ICJ Rep. 128, 175.
134. Dissenting opinion of Judge Álvarezin Competence of [General] Assembly
Regarding Admissions to the United Nations (adv. op.), 1950 ICJ Rep. 4, 12.
135. Ibid., 14.

136. Ibid., 16.
137. C. Wilford Jenks, “Law for a Welfare World,” in Institut de Droit International,
ed., Livre du Centenaire 1873–1973: Évolution et perspectives du droit international,
124–27 (Basle: S. Karger, 1973). See also C. Wilford Jenks, A New World of Law? A
Study of the Creative Imagination in International Law (London: Longmans, Green,
1969).
138. Rolando Quadri, “Cours générale de droit international public,” 113 RdC 237–
483 (1964), 266.
139. Ibid., 267. (Emphasis in the original.)
140. Ibid.
141. Ibid., 268.
142. Ibid., 271.
143. Ibid., 275.
144. Ibid., 273.
145. See, for example, David Kennedy, “Tom Franck and the Manhattan School,” 35
NYU J Int’l L. and Pol. 397– 435 (2003).
146. Clyde Eagleton, International Government (New York: Ronald, 1948), 48–50.
147. Wolfgang Friedmann, “General Course in Public International Law,” 127 RdC
39–246 (1969), 47– 48.
148. Ibid., 93.
149. Philip C. Jessup, Transnational Law (New Haven, CT: Yale University Press,
1956).
150. Philip C. Jessup, “International Law in 1953 a.d.,” 47 ASIL Procs. 8–15 (1953),
12.
151. Ibid., 14.
152. Myres S. McDougal, “International Law, Power, and Policy: A Contemporary
Conception,” 82 RdC 133–259 (1953), 168.
153. Myres S. McDougal and Harold D. Lasswell, “The Identification and Appraisal
of Diverse Systems of Public Order,” 53 AJIL 1–29 (1959) 9.
154. Ibid., 11.
155. Ibid., 6.
156. See, for example, Oran R. Young, “International Law and Social Science: The
Contributions of Myres S. McDougal,” 66 AJIL 60–76 (1972).
157. See Martin Griffiths, Fifty Key Thinkers in International Relations (London:
Routledge, 1999), 119–24.
158. See Richard A. Falk, A Study of Future Worlds (New York: Free Press, 1975).
159. Vienna Convention on the Law of Treaties, art. 53.
160. Barcelona Traction, Power and Light Co. (Belgium v. Spain), 1970 ICJ Rep. 3,
para. 33.
161. Ibid., para. 34.
162. On this threefold division in the nineteenth century, see Chapter 8.
163. Peter Lyon, “The Emergence of the Third World,” in Hedley Bull and Adam
Watson, eds., The Expansion of International Society, 229–37 (Oxford: Clarendon
Press, 1984), 229.
164. Montreux Convention, May 8, 1937, 182 LNTS 37. See Jasper Y. Brinton, “The
Closing of the Mixed Courts of Egypt,” 44 AJIL 303–12 (1950).
165. China-U.S.A., Treaty for Relinquishment of Extraterritorial Rights, Jan. 11,
1943, 10 UNTS 261.
166. See G.A. Res. 3201 (S-VI) (1974).
167. Protocol I to the Geneva Conventions of 1949, Dec. 12, 1977, 1125 UNTS 3, art.
1(4).
169. G.A. Res. 1514 (XV) (1960).
170. Western Sahara Case (adv. op.), 1975 ICJ Rep. 12, para. 59.
171. East Timor Case (Portugal v. Australia), 1995 ICJ Rep. 90, para. 29.
172. Consequences of the Wall (adv. op.), 2004 ICJ Rep. 136, para. 122.
173. See Chapter 7.
174. Reference re Secession of Quebec, [1998] 2 S.C.R. 217, reprinted in 37 ILM 1340
(1998).
175. Ibid., paras. 134–35.
176. Unilateral Declaration of Independence of Kosovo, 2010 ICJ Rep. 403.
11. Shadows across the Path

1. ICJ Press Release No. 2012/27, Sep. 28, 2012.
2. International Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 3.
3. Continental Shelf (Libya/Tunisia), 1982 ICJ Rep. 18; Gulf of Maine Case (Canada
/U.S.A.), 1984 ICJ Rep. 246; and Continental Shelf (Libya/Malta), 1985 ICJ Rep. 13.
4. Tehran Hostages Case (U.S.A. v. Iran), Order, 1979 ICJ Rep. 6.
5. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 500 UNTS 95, art. 22.
6. Tehran Hostages Case (U.S.A. v. Iran), 1980 ICJ Rep. 3.
7. Algiers Declaration, Jan. 19, 1981, 20 ILM 224 (1981).
8. Military and Paramilitary Activities (Nicaragua v. U.S.A.), 1986 ICJ Rep. 14.
9. Ibid. para. 228.
10. Armed Activities in the Congo (Congo v. Uganda), 2005 ICJ Rep. 168, paras.
163– 65.
11. Armed Activities in the Congo (Congo v. Rwanda), 2006 ICJ Rep. 6.
12. G.A. Res. 49/75 K (1994).
13. Legality of Nuclear Weapons (adv. op.), 1996 ICJ Rep. 226.
14. Ibid., para. 105.
15. Ibid.
16. Consequences of the Wall (adv. op.), 2004 ICJ Rep. 136.
17. See Chapter 10.
18. John N. Hazard, “ ‘New Th inking’ in Soviet Approaches to International Politics

and Law,” 2 Pace Int’l L. Rev. 2–19 (1990).
19. Robert A. Jones, The Soviet Concept of “Limited Sovereignty” from Lenin to Gor-
bachev: The Brezhnev Doctrine (Basingstoke: Macmillan, 1990), 167.
20. Dispatch, U.S. Department of State, Sep. 17, 1990, 91.
21. Ibid.
22. S.C. Res. 841, June 16, 1993.
23. S.C. Res. 940, July 31, 1994.
24. Genocide Convention Case (Bosnia v. Serbia), 2007 ICJ Rep. 43.
25. Marrakesh Agreement Establishing the WTO, Apr. 15, 1994, 1867 UNTS 3.
26. See Convention on the Settlement of Investment Disputes, Mar. 18, 1965, 575
UNTS 159.
27. See George H. Aldrich, The Jurisprudence of the Iran–United States Claims Tri-
bunal: An Analysis of the Decisions of the Tribunal (Oxford: Clarendon Press, 1996),
171–276.
28. UN Convention on the Law of the Sea, art. 226.
29. Convention against Torture, Dec. 10, 1984, 1465 UNTS 85, art. 22.
30. Convention on Racial Discrimination, Mar. 7, 1966, 660 UNTS 195, art. 14.
Convention on Discrimination against Women, Dec. 18, 1979, 1249 UNTS 13; and
Optional Protocol, Oct. 6, 1999, 2131 UNTS 83. Convention on the Rights of Disabled
Persons, and Optional Protocol, Dec. 13, 2006, 2515 UNTS 3.
31. Optional Protocol to the International Covenant on Economic, Social, and Cul-
tural Rights, Dec, 10, 2008, 48 ILM 256 (2009).
32. European Convention on Human Rights, Nov. 4, 1950, 213 UNTS 221.
33. American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123.
34. African Charter of Human and Peoples’ Rights, June 27, 1981, 1520 UNTS
217.
35. See Statute of the African Court on Human and Peoples’ Rights, June 10, 1998,
OAU Doc.OAU/LEG/MIN/AFCHPR/PROT(1)Rev 2 (1998).
36. S.C. Res. 827, May 25, 1993.
37. On the early operation of the Yugoslavia Tribunal, see Gary Jonathan Bass, Stay
the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, NJ: Princeton
38. Genocide Convention, Dec. 9, 1948, 78 UNTS 277, art. 2.
39. Statute of the Yugoslavia Crimes Tribunal, Report of the Secretary-General, UN
Doc. S/25704 (1993), Annex, 36– 48, art. 5; reprinted in Christine Van den Wyngaert,
ed., International Criminal Law: A Collection of International and European Instru-
ments, 2nd ed. (The Hague: Kluwer Law International, 2000), 73–81.
40. S.C. Res. 955, Nov. 8, 1994.
41. See, for example, “Statement of the Registrar Concerning the Contract of Em-
ployment of a Defence Investigator,” ICTR Doc. ICTR/INFO9–3–04, Aug. 17, 2001.
42. See Howard W. French, “Kagama’s Hidden War in the Congo,” N.Y. Rev. of
Books, Sep. 24, 2009, 46.
43. See Report of the International Tribunal for the Former Yugoslavia, UN Doc.
A/67/214—S/2012/592 (2012).
44. See the tribunal’s website, at www.ictr.org.
45. Rome Statute, July 17, 1998, 2187 UNTS 3.
46. ICC Doc. RC/Res.6 (2010).
47. S.C. Res. 1593, Mar. 31, 2005.
48. S.C. Res. 1970, Feb. 26, 2011.
49. See Pierre-Marie Dupuy, “L’unité de l’ordre juridique international: Cours gé-
nérale de droit international public,” 297 RdC 9– 490 (2002).
50. Francis Fukuyama, The End of History and the Last Man (London: Hamish
Hamilton, 1992).
51. On Franck’s theories, see Janne Elisabeth Nijman, The Concept of International
Legal Personality: An Inquiry into the History and Theory of International Law (The
Hague: T. M. C. Asser Press, 2004), 408–16
52. Thomas M. Franck, Fairness in International Law and Institutions (Oxford:
Clarendon Press, 1995), 140.
53. Ibid., 477.
54. See Chapter 6.
55. See, especially, Gerhardt Niemeyer, Law without Force: The Function of Politics
in International Law (Princeton, NJ: Princeton University Press, 1941).
56. Bruno Simma, “From Bilateralism to Community Interest in International
Law,” 25 RdC 217–384 (1994).
57. See Alfred Verdross, Der Verfassung der Völkerrechtsgemeinschaft (Vienna:
Springer, 1926). See also Johannes Mattern, “Problems of Method in International
Law: Alfred Verdross’ Concept of the Unity of the Legal Order on the Basis of an In-
ternational Constitution,” in Stuart A. Rice, ed., Methods in Social Science: A Case
Book, 118–36 (Chicago, IL: University of Chicago Press, 1931).
58. See Alfred Verdross and Bruno Simma, Universelles Völkerrecht: Theorie und
Praxis (Berlin: Duncker und Humblot, 1976).
59. Arnold McNair, “Functions and Differing Legal Character of Treaties,” 11 BY-
BIL 100–18 (1933), 112–14.
60. Quincy Wright, The Study of International Relations (New York: Appleton-
Century-Crofts, 1955), 230.
61. See Chapter 9.
62. See Simma, “Bilateralism,” 279–83.
63. Dissenting opinion of Judge Álvarez, Reservations to the Genocide Convention
(adv. op.), 1951 ICJ Rep. 15, 53.
64. Garrett Hardin, “The Tragedy of the Commons,” 162 Science 1243– 48 (1968).
65. Ibid., 1246.
66. Ibid.
67. See Kenneth Boulding, The Meaning of the Twentieth Century: The Great Transi-
tion (London: George Allen and Unwin, 1965), 135–36.
68. See Study Group of the International Law Commission, Fragmentation of Inter-
national Law: Difficulties Arising from the Diversification and Expansion of Interna-
tional Law, UN Doc. A/CN.4/L.682 (2006), 65–115.
69. See Chapter 9.
70. Study Group of the ILC, Fragmentation, at 244–56. See also Report of ILC on
58th Sess., 2 (pt. 2) [2006] Y.B. ILC, UN Doc. A/61 /10 (2006), 400–23.
71. Study Group of the ILC, Fragmentation, at 249.
72. Benedict Kingsbury, “The Administrative Law Frontier in Global Governance,”
99 ASIL Procs. 143–53 (2005), 143; and Benedict Kingsbury, Nico Krisch, and Richard
B. Stewart, “The Emergence of Global Administrative Law,” [2005] L. and Cont. Prob.
15– 61, 19–20.
73. Jeffrey L. Dunoff and Joel P. Trachtman, “A Functional Approach to International
Legal Constitutionalization,” in Jeffery L. Dunoff and Joel P. Trachtman, eds., Ruling the
World? Constitutionalism, International Law, and Global Governance, 69–109 (Cam-
bridge: Cambridge University Press, 2009), 33–34.
74. David Kennedy, “A New Stream of International Law Scholarship,” 7 Wis. Int’l
L. J. 1– 49 (1988), 9.
75. Ibid., 8.
76. David Kennedy, “Theses about International Legal Discourse,” 23 GYBIL 353–
91 (1980), 390.
77. Ibid., 390–91.
78. Martti Koskenniemi, From Apology to Utopia: The Structure of Legal Argument
(Cambridge: Cambridge University Press, 1989), 554.
79. Ibid., 552–54.
80. Ibid., 555.
81. Ibid., 560.
82. David Kennedy, “The Mystery of Global Governance,” in Dunoff and Tracht-
man, eds., Ruling the World, 64.
83. Ibid., 54.
84. See Koskenniemi, From Apology to Utopia, 71–94.
85. David Kennedy, The Dark Sides of Virtue: Reassessing International Humani-
tarianism (Princeton, NJ: Princeton University Press, 2004), 15–16.
86. Ibid., 22–23.
87. Kennedy, “New Stream,” 47– 48.
88. “McDougal’s Jurisprudence: Utility, Influence, Controversy,” 79 ASIL Procs.
266–88 (1985), 286.
89. Nigel Purvis, “Critical Legal Studies in Public International Law,” 32 Harvard
Int’l L. J. 81–127 (1991), 120–27.
90. See Chapter 2.
91. Johann Kaspar Bluntschli, The Theory of the State, 3rd English ed. (Oxford:
Clarendon Press, 1895), 23.
92. Cornelius van Vollenhoven, The Three Stages in the Evolution of the Law of Na-
tions (The Hague: Martinus Nijhoff, 1919), 92.
93. Convention on the Political Rights of Women, Mar. 31, 1953, 193 UNTS 135.
94. Convention on the Elimination of Discrimination against Women, Dec. 18,
1979, 1249 UNTS 13.
95. Optional Protocol (to the Convention on Discrimination against Women), Oct. 6,
1999, 2131 UNTS 83.
96. Hilary Charlesworth, Christine Chinkin, and Shelley Wright, “Feminist Ap-
proaches to International Law,” 85 AJIL 613– 45 (1991), 625–30.
97. Ibid., 632.
98. Hilary Charlesworth, “Feminist Ambivalence about International Law,” 11 Int’l
Legal Theory 1–11 (2005), 6.
99. Charlesworth, Chinkin, and Wright, “Feminist Approaches,” 629.
100. Hilary Charlesworth, “Feminist Methods in International Law,” 93 AJIL 379–
94 (1999), 392.
102. Ibid., 615.
103. Charlesworth, “Feminist Methods,” 379.
105. Ibid., 634–38.
106. Charlesworth, “Feminist Ambivalence,” 1.
107. Ibid., 4.
108. See Application for Revision and Interpretation (Tunisia/Libya), 1985 ICJ
Rep. 192.
109. Book Review, 87 AJIL 160– 64 (1993), 162.
110. Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford Univer-
sity Press, 1990), 4.
111. Ibid., xix.
112. Philip Allott, The Health of Nations: Society and Law beyond the State (Cam-
bridge: Cambridge University Press, 2002), 315.
113. See Teihard de Chardin, The Phenomenon of Man (London: William Collins
Sons, 1959), 283–90, 294–99.
114. Clyde Eagleton, “The Individual and International Law,” 40 ASIL Procs. 22–29
(1946), 29.
115. Ibid.
116. See Theodore Leavitt, “The Globalization of Markets,” 61 Harvard Business
Review 92–102 (May 1983).
117. Dudgeon v. U.K., 4 EHRR 149 (1981).
118. Eric Posner, The Perils of Legal Globalism (Chicago, IL: University of Chicago
Press, 2009), xii.
119. Cicero, On Duties, ed. M. T. Griffi n and E. M. Atkins; trans. E. M. Atkins

(Cambridge: Cambridge University Press, 1991 [44 b.c.]), 141.
120. Alberico Gentili, On the Law of War, trans. John C. Rolfe (Oxford: Clarendon
Press, 1933 [1598]), 124.
Fenwick (Washington, DC: Carnegie Institution, 1916 [1758]), 93. See also Henry
Wheaton, Elements of International Law (Philadelphia: Carey, Lea and Blanchard,
1836), 112–14.
122. Geneva Convention I on Wounded and Sick on Land, Aug. 12, 1949, 75 UNTS
31, art. 49; Geneva Convention II, on Wounded and Sick at Sea, Aug. 12, 1949, 75
UNTS 85, art. 50; Geneva Convention III, on Prisoners of War, Aug. 12, 1949, 75 UNTS
135, art. 129; and Geneva Convention IV, on Civilians, Aug. 12, 1949, 75 UNTS 287,
art. 146.
123. For an informative summary of state practice in this regard, see Table 1 of UN
Secretary-General, The Scope and Application of the Principle of Universal Jurisdic-
tion, UN Doc. A/65/181 (2010), 28–32.
124. Hague Convention on Aerial Hijacking, Dec. 16, 1970, 860 UNTS 105, art. 7.
125. See Montreal Convention on Unlawful Acts against Civil Aviation, Sep. 23,
1971, 974 UNTS 177, art. 7; International Convention against the Taking of Hostages,
Dec. 17, 1979, 1316 UNTS 205, art. 8(1); International Convention against Maritime
Terrorism, Mar. 10, 1988, 1678 UNTS 221, art. 10(1); and International Convention for
the Suppression of Terrorist Bombings, Dec. 15, 1997, 2149 UNTS 256, art. 8.
126. Convention against Torture, Dec. 10, 1984, 1465 UNTS 85, art. 5(2).
127. Jorgi v. Germany, 47 EHRR 207 (2007), paras. 64–72.
128. UN Secretary-General, Scope and Application, 14–15.
129. Opinion of Judge Guillaume, Arrest Warrant Case (Congo v. Belgium), 2002
ICJ Rep. 3, 35, para. 15.
130. Decision No. Assembly/AU/Dec.199(XI) (2008). See also AU Doc. Assembly/
AU/Dec.292 (XV) (2010).
131. AU-EU, Technical Ad hoc Expert Group on the Principle of Universal Jurisdic-
tion, Report, Council of Europe Doc. 8672/1/09, REV 1 (2009).
132. Ibid., 40– 42.
133. Henry Kissinger, Does America Need a Foreign Policy? Toward a Diplomacy for
the Twenty-First Century (New York: Simon and Schuster, 2001), 273.
134. Ibid., 275–76.
135. Ibid., 273.
136. UN Secretary-General, Report on Universal Jurisdiction, UN Doc. A/65/181
(2010), 22.
137. R. v. Bow Street Magistrate, ex p. Pinochet Ugarte (No. 3), [2000] 1 A.C. 147.
138. Roman Anatolevich Kolodkin, Second report on Immunity of State Officials
from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/631 (2010), 5, n. 19.
139. Ibid.
140. See Thomas M. Franck and Nigel S. Rodley, “After Bangladesh: The Law of
Humanitarian Intervention by Military Force,” 67 AJIL 275–305 (1973).
141. See, for example, Ian Brownlie, “Humanitarian Intervention,” in J. N. Moore,
ed., Law and Civil War in the Modern World, 217–28 (Baltimore: Johns Hopkins Uni-
versity Press, 1974).
142. Legality of Use of Force (Serbia v. Belgium), 1999 ICJ Rep. 124, paras. 22–30.
143. Legality of Use of Force in Kosovo (Preliminary Objections) (Serbia v. NATO
States), 2004 ICJ Rep. 279.
144. See Statute of the Yugoslavia Crimes Tribunal, art. 7(2); Statute of the Rwanda
Crimes Tribunal, S.C. Res. 955, Nov. 8, 1994, Annex, art. 6(2); and Rome Statute, art. 27.
145. 55 Keesing’s Record of World Events, 49073 (2009).
146. Ibid.
147. See Bolton to UN Secretary-General, May 6, 2002, in Sean D. Murphy, ed.,
United States Practice in International Law: 2002–2004, vol. 2 (Cambridge: Cambridge
148. See Jennifer K. Elsea, “U.S. Policy Regarding the International Criminal
Court,” Congressional Research Ser vice, Doc. RL31495 (2006).
149. American Ser vicemembers’ Protection Act 2002, 22 U.S. Code §§ 7421–7433,
116 Stat. 899 (2002).
150. Ibid., § 7427.
151. Errol P. Mendes, Peace and Justice at the International Criminal Court: A Court
of Last Resort (Cheltenham: Edward Elgar, 2010), 100– 06.
152. Decision 13 (XIII) on the Meeting of African States Parties to the Rome Stat-
ute, AU Doc. Assembly/AU/Dec.245 (XIII) Rev.1 (2009).
153. Decision Informing the UN Security Council and the Assembly of the States
Parties of Al-Bashir’s recent visit to Chad, Aug. 27, 2010, ICC Doc. ICC-02/05-01/09-109;
No. Decision Informing the UN Security Council and the Assembly of the States Parties
of Al-Bashir’s Presence in Kenya, Aug. 27, 2010, ICC Doc. ICC-02/05-01/09-107; and
Decision Informing the UN Security Council and the Assembly of the States Parties of
Al-Bashir’s Visit to Djibouti, May 12, 2011, ICC Doc. ICC-02/05-01/09-129.
154. Sam Dealey, “Omar al-Bashir: Sudan’s Most Wanted Man,” Time World, Aug.
13, 2009.
155. Decision on Noncompliance by Malawi, Dec. 12, 2011, ICC Doc. ICC- 02/05-
01/09-139; and Decision on Noncompliance by Chad, Dec. 13, 2011, ICC Doc. ICC-
02/05- 01/09-140.
156. Decision on Noncompliance by Chad, Mar. 26, 2013, ICC Doc. ICC- 02/
05- 01/09-151.
157. Decision 670 (XIX) on the International Criminal Court, AU Doc. Assembly/
AU/Dec.366(XVII) (2011).
Bibliographic Essay
This essay is designed to inform general readers of relevant readings that can be prof-
itably consulted for more detailed treatment of the various topics covered—necessarily
briefly—in this book. It does not purport or pretend to be a comprehensive bibliogra-
phy. In par ticu lar, works that are not readily available or that are highly technical are
deliberately not included here. They are identified, where relevant, in notes to the text.
General
There are several general works that readers may fi nd useful. Douglas M. Johnston,
The Historical Foundations of World Order: The Tower and the Arena (Martinus Ni-
jhoff, 2008) is an immensely learned book, focusing on the role of law in international
affairs, that is, on state practice more than on the intellectual aspects of the subject. It
is broadly chronological up to 1905 and then topical after that (thereby largely omit-
ting the interwar period). See also Wilhelm Grewe, The Epochs of International Law
(trans. and rev. by Michael Byers; Walter de Gruyter, 2000), which also concentrates
on state practice rather than on ideas, beginning with medieval Europe and tracing a
selected number of topics through history. It is, effectively, a political history of inter-
national law. A work that focuses on ideas with comparatively little attention to state
practice is Gustavo Gozzi, Diritti e civilità: Storia e filosofia del diritto internazionale
(Il Mulino, 2010), which begins with the sixteenth century. Slim Laghmani, Histoire
du droit des gens du jus gentium au jus publicum europaeum (Pedone, 2004) concen-
trates on the broad intellectual aspects of international law and the political factors
underlying them, covering the subject up to the First World War. Dominque Gaurier,
Histoire du droit international: Auteurs, doctrines et développement de l’Antiquité à
l’aube de la période contemporaine (Presses universitaires de Rennes, 2005) also pro-
vides a thorough survey of both state practice and the contributions of a wide range of
individual writers, up to the period of the First World War.
Some older treatments continue to be very useful. Prominent in this regard is Ar-
thur Nussbaum, A Concise History of the Law of Nations (2nd ed.; Macmillan, 1954).
An unjustly neglected work is Adda B. Bozeman, Politics and Culture in International
History (Princeton University Press, 1960). See also Ludwik Ehrlich, “The Development
of International Law as a Science,” 105 RdC 173–265 (1962). Martin Wight, Systems of
562 Bibliographic Essay
States (ed. by Hedley Bull; Leicester University Press, 1977), while not a legal work,
nevertheless contains much valuable material at 73–109.
There are several major collective works. Bardo Fassbender and Anne Peters (eds.),
The Oxford Handbook of the History of International Law (Oxford University Press,
2012) is a notable contribution. Its focus is thematic rather than chronological, pri-
marily covering the modern (i.e., postmedieval) period, with no detailed treatment of
ancient societies and little of the European Middle Ages. Alexander Orakhelashvili
(ed.), Research Handbook on the Theory and History of International Law (Edward El-
gar, 2011) contains much of interest, although its balance is rather more heavily on
theory than on history.
There are many works that deal with par ticu lar themes or topics in international
law from a historical point of view. On arbitration, see Jackson H. Ralston, Interna-
tional Arbitration from Athens to Locarno (Stanford University Press, 1929). On war,
see Stephen C. Neff, War and the Law of Nations: A General History (Cambridge
University Press, 2005). On neutrality, see Stephen C. Neff, The Rights and Duties of
Neutrals: A General History (Manchester University Press, 2000); Carl J. Kulsrud,
Maritime Neutrality to 1780: A History of the Main Principles Governing Neutrality
and Belligerency to 1780 (Little, Brown, 1936); and Philip C. Jessup and Francis Deák,
Neutrality: Its History, Economics and Law. The Origins (Columbia University Press,
1935). On peace treaties, see Randall Lesaffer (ed.), Peace Treaties and International
Law in European History: From the Late Middle Ages to World War One (Cambridge
University Press, 2004). On diplomatic immunity, see Linda S. Frey and Marsha L.
Frey, The History of Diplomatic Immunity (Ohio State University Press, 1999). On the
law of the sea, see R. P. Anand, Origin and Development of the Law of the Sea: History
of International Law Revisited (Martinus Nijhoff, 1983), which is notable for giving
substantial coverage to non-European experiences. See also J. K. Oudendijk, Status
and Extent of Adjacent Waters: A Historical Orientation (Sijthoff, 1970). On economic
relations, see Stephen C. Neff, Friends but No Allies: Economic Liberalism and the Law
of Nations (Columbia University Press, 1990). On human rights, see Micheline R.
Ishay, The History of Human Rights: From Ancient Times to the Globalization Era
(University of California Press, 2008). On the codification of international law, see
Ernest Nys, “The Codification of International Law,” 5 AJIL 871–900 (1911); and R. P.
Dhokalia, The Codification of Public International Law (Manchester University Press,
1970). On the concept of legal personality, see Janne Elisabeth Nijman, The Concept of
International Legal Personality: An Inquiry into the History and Theory of Interna-
tional Law (T. M. C. Asser Press, 2004), a book that ranges more broadly than its title
would suggest.
On natural law, a major theme of this history, there is surprisingly little material
that is oriented to a general readership. For a general overview of natural law, probably
the best existing work is Clarence J. Glacken, Traces on the Rhodian Shore: Nature and
Culture in Western Thought from Ancient Times to the End of the Eighteenth Century
(University of California Press, 1967), although it does not attempt to cover interna-
tional law. For a more strictly legal study of the subject, see Heinrich A. Rommen, The
Natural Law: A Study in Legal and Social History and Philosophy (trans. by Thomas R.
Hanley; Liberty Fund, 1998 [1936]), although it, too, is not focused on international
law.
Since practically every book on international relations or international politics con-
tains at least something of legal relevance, there is no point in even attempting a com-
prehensive list. Several works on the history of international relations, however, do
merit specific mention. These include Andreas Osiander, Before the State: Systemic
Political Change in the West from the Greeks to the French Revolution (Oxford Univer-
sity Press, 2007); Andrew Phillips, War, Religion and Empire: The Transformation of
International Orders (Cambridge University Press, 2010); and Adam Watson, The
Evolution of International Society (Routledge, 1992). For histories of international re-
lations theory, see Torbjørn L. Knutsen, A History of International Relations Theory
(2nd ed.; Manchester University Press, 1997); Brian C. Schmidt, The Political Dis-
course of Anarchy: A Disciplinary History of International Relations (State University
of New York Press, 1998); David Boucher, Political Theories of International Relations:
From Thucydides to the Present (Oxford University Press, 1998); and Frank M. Russell,
Theories of International Relations (D. Appleton-Century, 1936), still remarkably use-
ful despite its age. On the interplay between international law and international rela-
tions theory generally, a fine overview is Anne-Marie Slaughter Burley, “International
Law and International Relations Theory: A Dual Agenda,” 87 AJIL 205–39 (1993). For
an interesting series of explorations of why non-Western societies have not developed
a systematic science of international relations, see Amitav Acharya and Barry Buzan
(eds.), Non-Western International Relations Theory: Perspectives on and beyond Asia
(Routledge, 2010).
There are surprisingly few works on national traditions in international law. A par-
ticularly notable entrant in this field is Angelo Piero Sereni, The Italian Conception of
International Law (Columbia University Press, 1943). On the United States, see Mark
W. Janis, The American Tradition of International Law: Great Expectations 1789–1914
(Oxford University Press, 2004), which is a stimulating presentation of several themes,
though not a systematic treatment. On Russia, see V. E. Grabar, The History of Interna-
tional Law in Russia, 1647–1917: A Bio-Bibliographical Study (Clarendon Press, 1990).
1. Doing Justice to Others

For those interested in theories of an innate, biologically based sense of justice in hu-
mans, much of interest may be found in Marc D. Hauser, Moral Minds: How Nature
Designed Our Universal Sense of Right and Wrong (Ecco, 2006); and Laurence R. Tan-
credi, Hardwired Behavior: What Neuroscience Reveals about Morality (Cambridge
University Press, 2005). For powerful opposition to biological explanations of human
social behavior, see Jesse J. Prinz, Beyond Human Nature: How Culture and Experi-
ence Shape Our Lives (Allen Lane, 2012). For the controversial thesis of a normative (if
not quite a moral) sense even in animals, see Marc Bekoff and Jessica Pierce, Wild
Justice: The Moral Lives of Animals (University of Chicago Press, 2009). On parochial
altruism, see Edward O. Wilson, The Social Conquest of the Earth (W. W. Norton,
2012), 57–76, 241–54. For the famous experiment demonstrating the power of reci-
procity, see Robert Axelrod, The Evolution of Cooperation (Basic, 1984).
For a broad-ranging survey of prehistoric and early historic intertribal and “inter-
national” relations, see Ragnar Numelin, The Beginnings of Diplomacy: A Sociological
Study of Intertribal and International Relations (Oxford University Press, 1950).
For treatment of the ancient Middle Eastern and Mediterranean civilizations
(Egypt, the Middle East, Greece, and Rome), see David J. Bederman, International
Law in Antiquity (Cambridge University Press, 2001), which deals with the three ma-
jor areas of state practice in antiquity: diplomacy (88–120), treaty making (137–206),
and warfare (207– 66).
On the ancient Middle East, the leading work is Amnon Altman, Tracing the Earli-
est Recorded Concepts of International Law: The Ancient Near East (2500–330 bce)
(Martinus Nijhoff, 2012). A brief but informative survey of the system of states may be
found in Adam Watson, The Evolution of International Society (Routledge, 1992), 24–
39. For a far more detailed treatment, with substantial legal content, see Amanda H.
Podany, Brotherhood of Kings: How International Relations Shaped the Ancient Near
East (Oxford University Press, 2010), covering the period up to the thirteenth century
b.c. On treaty-making practice specifically, see Peter Karavites, Promise-Giving and
Treaty-Making: Homer and the Near East (E. J. Brill, 1992); Donald L. Magnetti, “The
Function of the Oath in the Ancient Near Eastern International Treaty,” 72 AJIL 815–
29 (1978); and Bederman, International Law in Antiquity, 137–54.
On ancient India, there is an acute shortage of good material. Useful information
on relevant legal theory may be found in Frank M. Russell, Theories of International
Relations (D. Appleton-Century, 1936), 37–50. Kautilya naturally attracts the lion’s
share of attention. See George Modelski, “Kautilya: Foreign Policy and International
System in the Ancient Hindu World,” 58 Am. Pol. Sci. Rev. 549– 60 (1964); and, more
specifically legal in focus, C. H. Alexandrowicz, “Kautilyan Principles and the Law of
Nations,” 41 BYBIL 301–20 (1965– 66). See also H. S. Bhatia (ed.), International Law
and Practice in Ancient India (Deep and Deep, 1977); and Nagendra Singh, “The Dis-
tinguishing Characteristics of the Concept of the Law of Nations as It Developed in
Ancient India,” in Maarten Bos and I. Brownlie (eds.), Liber Amicorum for Lord Wil-
berforce, 91–107 (Clarendon Press, 1987). On warfare, see V. R. Ramachandra Dikshi-
tar, War in Ancient India (Macmillan, 1948).
Ancient China is better served, although there is no recent book-length treatment
of international law in any major European language. The best work available there-
fore continues to be Richard Lewis Walker, The Multi-State System of Ancient China
(Shoe String Press, 1953). See also Rune Svarverud, International Law as World Order
in Late Imperial China: Translation, Reception and Discourse, 1847–1911 (Leiden:
Brill, 2007), 150– 61; Watson, Evolution of International Society, 85–93; and Roswell S.
Britton, “Chinese Interstate Intercourse before 700 b.c.,” 29 AJIL 616–35 (1935). On
Chinese ideas about international relations generally, see C. P. Fitzgerald, The Chinese
View of Their Place in the World (Oxford University Press, 1964); Benjamin I.
Schwartz, “The Chinese Perception of World Order, Past and Present,” in John King
Fairbank (ed.), The Chinese World Order: Traditional China’s Foreign Relations, 276–
88 (Harvard University Press, 1968); and Yang Lien-sheng, “Historical Notes on the
Chinese World Order,” in Fairbank (ed.), Chinese World Order, 20–33. On the Confu-
cian tradition in international affairs, see Russell, Theories of International Relations,
19–25. The classic work, W. A. P. Martin, The Lore of Cathay; or The Intellect of China
(Oliphant, Anderson and Ferrier, 1901), continues to be useful.
More specifically on international law in the preimperial era, see Yongjin Zhang,
“System, Empire and State in Chinese International Relations,” 27(5) Rev. Int’l Stud.
43– 63 (2001), 45–51; Chen Shih-tsai, “The Equality of States in Ancient China,” 35
AJIL 641–50 (1941); and Wang Tieya, “International Law in China: Historical and
Contemporary Perspectives,” 221 RdC 195–309 (1990), 205–13. On treaty making, see
John K. Fairbank, “The Early Treaty System in the Chinese World Order,” in Fairbank
(ed.), Chinese World Order, 257–75. On Mencius in par ticu lar, see Kwong-loi Shun,
Mencius and Early Chinese Thought (Stanford University Press, 1997), 163–73; Russell,
Theories of International Relations, 20–22; and Elbert Duncan Thomas, Chinese Politi-
cal Thought: A Study Based upon the Theories of the Principal Thinkers of the Chou
Period (Williams and Norgate, 1928), 244–52.
On the imperial period in China (i.e., post 221 b.c.), see Zhang, “System, Empire
and State,” 51–58. For a more specifically legal focus, see Douglas M. Johnston, The
Historical Foundations of World Order: The Tower and the Arena (Martinus Nijhoff,
2008), 471–80; and Tieya, “International Law in China,” 214–25. On the tribute sys-
tem, the core institution of international relations in the period, see Charles Hol-
combe, The Genesis of East Asia 221 b.c.–a.d. 907 (Association for Asian Studies,
2001), 53– 60. On the nature of China’s relations with neighboring states in the Sung
period (tenth to thirteenth centuries), see Morris Rossabi (ed.), China among Equals:
The Middle Kingdom and Its Neighbors, 10th–14th Centuries (University of California
Press, 1983), especially two of the contributions: Wang Gungwu, “The Rhetoric of a
Lesser Empire: Early Sung Relations with Its Neighbors,” 47– 65; and Tao Jing-shen,
“Barbarians or Northerners: Northern Sung Images of the Khitans,” 66–86.
On ancient Greece and Rome generally, there is still much that is valuable in Cole-
man Phillipson, The International Law and Custom of Ancient Greece and Rome (2
vols.; Macmillan, 1911). On the Greek state system generally, see Watson, Evolution of
International Society, 47– 68; Bederman, International Law in Antiquity, 31– 41; Mar-
tin Wight, Systems of States (ed. by Hedley Bull; Leicester University Press, 1977),
46–72; Russell, Theories of International Relations, 51–74; Arthur M. Eckstein, Medi-
terranean Anarchy, Interstate War, and the Rise of Rome (University of California
Press, 2006), 37–117; and Polly Low, Interstate Relations in Classical Greece: Morality
and Power (Cambridge University Press, 2007), especially 77–128, where legal themes
are discussed. For a forceful presentation of the case for a strong international legal
sense among the Greek city-states, see Peter Hunt, War, Peace, and Alliance in Demos-
thenes’ Athens (Cambridge University Press, 2010), 215–36. On international law in
ancient Greece generally, see Johnston, Historical Foundations, 180–99. On laws of
warfare in ancient Greece, see Josiah Ober, “Classical Greek Times,” in Michael How-
ard, George J. Andreopoulos, and Mark R. Shulman (eds.), The Laws of War: Con-
straints on Warfare in the Western World, 12–26 (Yale University Press, 1994). For a
contrary view, flatly denying the existence of international law in ancient Greece, see
Eckstein, Mediterranean Anarchy, 37– 42, who writes from the standpoint of the real-
ist school of international relations.
On theoretical speculations in ancient Greece, see Russell, Theories of International
Relations, 51–74. On Plato’s ideas on international relations, an excellent short discus-
sion may be found in Ernest Barker, Greek Political Theory: Plato and His Predecessors
(5th ed.; Methuen, 1960), 307–11. On the ideas of the stoics, see David Boucher, Politi-
cal Theories of International Relations: From Thucydides to the Present (Oxford Uni-
On state practice in international law among the Greek states, see Dominque
Gaurier, Histoire du droit international: Auteurs, doctrines et développement de
l’Antiquité à l’aube de la période contemporaine (Presses universitaires de Rennes,
2005), 52– 66. See also George A. Sheets, “Conceptualizing International Law in
Thucydides,” 115 American Journal of Philology 51–73 (1994). For a thoroughgoing
study of neutrality, see Robert A. Bauslaugh, The Concept of Neutrality in Classical
Greece (University of California Press, 1991). On the important topic of arbitration,
see Marcus Niebuhr Tod, International Arbitration amongst the Greeks (Clarendon
Press, 1913); and Sheila L. Ager, Interstate Arbitrations in the Greek World, 337–90 b.c.
(University of California Press, 1996), for a comprehensive collection of all arbitration
material for the relevant period. On treaty making, see Bederman, International Law
in Antiquity, 154–83.
Ancient Rome, for such a legalistic society, has produced or inspired disappointingly
little material on international law. See, however, Johnston, Historical Foundations,
199–227. On Roman state practice, see Gaurier, Histoire du droit international, 56–80.
See also Watson, Evolution of International Society, 94–106. On the ius fetiale, see Alan
Watson, International Law in Archaic Rome: War and Religion (Johns Hopkins Univer-
sity Press, 1993). For a perceptive analysis of Roman treaty making, see Christian Bal-
dus, “Vestigia pacis. The Roman Peace Treaty: Structure or Event?” in Randall Lesaffer
(ed.), Peace Treaties and International Law in European History: From the Late Middle
Ages to World War One, 103–46 (Cambridge University Press, 2004). For two instruc-
tively disparate views of an incident in 191 b.c., involving an attempted surrender to
Rome of the Aetolian League forces, see Paul J. Burton, “Ancient International Law, the
Aetolian League, and the Ritual of Surrender during the Roman Republic: A Construc-
tivist View,” 31 Int’l Hist. Rev. 237–52 (2009); and Arthur M. Eckstein, “Ancient ‘Inter-
national Law’, the Aetolian League, and the Ritual of Unconditional Surrender to
Rome: A Realist View,” 31 Int’l Hist. Rev. 253– 67 (2009). On Cicero’s contribution to
international law, see Johnston, Historical Foundations, 217–24.
On cosmopolitan thought and ideals in ancient Greece, see H. C. Baldry, The Unity
of Mankind in Greek Thought (Cambridge University Press, 1965). On natural law in
Roman legal thought, see Barry Nicholas, An Introduction to Roman Law (Clarendon
Press, 1962), 54–59. On the Roman-law ius gentium, see Phillipson, International Law
and Custom, vol. 1, 70–81. For more recent treatments, see Peter Haggenmacher, Gro-
tius et la doctrine de la guerre juste (Presses universitaires de France, 1983), 313–20;
and Peter Stein, “Roman Law,” in J. H. Burns (ed.), The Cambridge History of Medieval
Political Thought c. 350–c. 1450, 37– 47 (Cambridge University Press, 1988).
2. Keeping Kings in Check

On international relations generally in the Middle Ages, see François L. Ganshof, The
Middle Ages: A History of International Relations (trans. by Rémy Inglis Hall; Harper
and Row, 1970), which contains much information; and, more briefly, Adam Watson,
The Evolution of International Society (Routledge, 1992), 138–51. Also containing use-
ful information, though not specifically directed to international law, is Bernard
Guenée, States and Rulers in Later Medieval Europe (trans. by Julet Vale; Basil Black-
well, 1985).
On international law in par ticu lar, see Douglas M. Johnston, The Historical Foun-
dations of World Order: The Tower and the Arena (Martinus Nijhoff, 2008), 243–319;
Heinrich Kipp, Völkerordnung und Völkerrecht im Mittelalter (Deutsche Glocke,
1950); and John Eppstein, Catholic Tradition of the Law of Nations (Burns Oates and
Washbourne, 1935). On state practice in the realm of international law, see Dominque
Gaurier, Histoire du droit international: Auteurs, doctrines et développement de
l’Antiquité à l’aube de la période contemporaine (Presses universitaires de Rennes,
2005), 85–133. On international relations ideas, see Frank M. Russell, Theories of In-
ternational Relations (D. Appleton-Century, 1936), 90–115. For a detailed study of the
Carolingian period, see Heinhard Steiger, Die Ordnung der Welt: Eine Völkerrechtsge-
schichte des karolingischen Zeitalters (741 bis 840) (Böhlau, 2010).
On the various ideas about the ius gentium in the Middle Ages, see the masterful
discussion in Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Presses
universitaires de France, 1983), 311–58. For a fine short account in English, see Don-
ald R. Kelley, The Human Measure: Social Thought in the Western Legal Tradition
(Harvard University Press, 1990), 121–27.
On just-war doctrine, the best general account is Frederick H. Russell, The Just War
in the Middle Ages (Cambridge University Press, 1975). For an excellent short exposi-
tion, see Jonathan Barnes, “The Just War,” in N. Kretzmann, A. Kenny, and J. Pinborg
(eds.), The Cambridge History of Later Medieval Philosophy, 771–84 (Cambridge Uni-
versity Press, 1982). See also Stephen C. Neff, War and the Law of Nations: A General
History (Cambridge University Press, 2005), 45– 68; and Kipp, Völkerordnung und
Völkerrecht, 132– 41. On the seminal contribution of Augustine to just war thought,
see Richard Shelley Hartigan, “Saint Augustine on War and Killing: The Problem of
the Innocent,” 27 J. Hist. Ideas 195–204 (1966); and Paul Ramsey, “The Just War Ac-
cording to St Augustine,” in Jean Bethke Elshtain (ed.), Just War Theory, 8–22 (Basil
Blackwell, 1992). Also on the formative period of just-war doctrine is Dominique
Bauer, “Ivo of Chartres, the Gregorian Reform and the Formation of the Just War
Doctrine,” 7 JHIL 43–54 (2005). On preventive war, see Gregory M. Reichberg, “Pre-
ventive War in Classical Just War Theory,” 9 JHIL 5–34 (2007). For a thorough explo-
ration of medieval peacemaking, see Jenny Benham, Peacemaking in the Middle Ages:
Principles and Practice (Manchester University Press, 2011). On medieval arbitral
practice, see Wilhelm G. Grewe, The Epochs of International Law (trans. by Michael
Byers; Walter de Gruyter, 2000), 93–104.
On claims of the Holy Roman emperors to universal sovereignty, see Kenneth Pen-
nington, The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western
Legal Tradition (University of California Press, 1993), 8–37. On papal claims to vari-
ous rights and powers over secular rulers, see J. A. Watt, “Spiritual and Temporal
Powers,” in J. H. Burns (ed.), The Cambridge History of Political Thought c.350–c.1450,
367– 423 (Cambridge University Press, 1988); and I. S. Robinson, “Church and Pa-
pacy,” in that same work, 252–305. See also Walter Ullmann, A History of Political
Thought in the Middle Ages (Penguin, 1965), 100–115.
The standard account of the ius commune is Manlio Bellomo, The Common Legal
Past of Europe, 1000–1800 (trans. by Lydia G. Cochrane; Catholic University of Amer-
ica Press, 1995), 55–77, 112–202. See also O. F. Robinson, T. D. Fergus, and W. M.
Gordon, European Legal History: Sources and Institutions (3rd ed.; Butterworths,
2000), 107–24. On the contribution of canon law to the development of international
law, see Dominique Bauer, “The Importance of Medieval Canon Law and the Scholas-
tic Tradition for the Emergence of the Early Modern International Legal Order,” in
Randall Lesaffer (ed.), Peace Treaties and International Law in European History:
From the Late Middle Ages to World War One, 198–221 (Cambridge University Press,
2004); Randall Lesaffer, “The Medieval Canon Law of Contract and Early Modern
Treaty Law,” 2 JHIL 178–98 (2000); and James Muldoon, “The Contribution of the
Medieval Canon-Lawyers to the Formation of International Law,” 28 Traditio 483–97
(1972). On canon law in general, an excellent survey is James A. Brundage, Medieval
Canon Law (Longman, 1995), especially 98–119, where public-law issues are treated.
See also Robinson, Fergus, and Gordon, European Legal History, 72–90.
For a fine survey of the Italian communal movement, see Lauro Martines, Power
and Imagination: City-States in Renaissance Italy (Harmondsworth: Penguin, 1979),
1–21. See also J. K. Hyde, Society and Politics in Medieval Italy: The Evolution of the
Civil Life, 1000–1350 (Macmillan, 1973), 38– 64, focusing on the formative period.
There are some useful writings on the contributions of various individual thinkers
to international legal thought. On Aquinas, see Alexander Passerin D’Entrèves, The
Medieval Contribution to Political Thought (Oxford University Press, 1939), 19– 43. On
Dante, see Andreas Osiander, Before the State: Systemic Political Change in the West
from the Greeks to the French Revolution (Oxford University Press, 2007), 312–24;
Ullmann, History, 189–95; and John B. Morrall, Political Thought in Medieval Times
(2nd ed.; Hutchinson, 1960), 95–103. On Bartolus of Sassoferrato, see Cecil N. Sidney
Woolf, Bartolus of Sassoferrato: His Position in the History of Medieval Political
Thought (Cambridge University Press, 1913). On Baldus of Ubaldis, see J. P. Canning,
The Political Thought of Baldus de Ubaldis (Cambridge University Press, 1987). On
Marsilius of Padua, see the fine discussion in D’Entrèves, Medieval Contribution, 44–
87. Also on Marsilius, see Hyde, Society and Politics, 186–96; Morrall, Political
Thought, 104–18; and Ullmann, History, 204–14.
On the laws of war, M. H. Keen, The Laws of War in the Late Middle Ages (Routledge
and Kegan Paul, 1965) remains the leading work. On ransom practice in particular, see
Philippe Contamine, “The Growth of State Control. Practices of War 1300–1800: Ran-
som and Booty,” in Philippe Contamine (ed.), War and Competition between States, 163–
93 (Clarendon Press, 2000), especially 164–72. On the genesis of prize law in maritime
war, R. G. Marsden, “Early Prize Jurisdiction and Prize Law in England,” 24 English
Historical Review 675–97 (1909) remains valuable. Also on maritime war, see D. A. Gar-
diner, “Belligerent Rights on the High Seas in the Fourteenth Century,” 48 LQR 521–46.
On the medieval law merchant, see Emily Kadens, “Order within Law, Variety
within Custom: The Character of the Medieval Merchant Law,” 5 Chicago J. Int’l L.
39– 65 (2004); Harold J. Berman, Law and Revolution: The Formation of the Western
Legal Tradition (Harvard University Press, 1983), 339–56; and Robinson, Fergus, and
Gordon, European Legal History, 91–106. See also Johnston, Historical Foundations,
296–308. For medieval developments in the law of the sea, see Percy Thomas Fenn Jr.,
“Origins of the Theory of Territorial Waters,” 20 AJIL 465–82 (1926).
3. New Worlds and Their Challenges

Islamic approaches to international law are not so liberally written on as might be
supposed. Useful starts may be made, though, by consulting Jean Allain, “Accultura-
tion through the Middle Ages: The Islamic Law of Nations and Its Place in the History
of International Law,” in Alexander Orakhelashvili (ed.), Research Handbook on the
Theory and History of International Law, 394– 407 (Edward Elgar, 2011); Fatiha Sahli
and Abdelmalek El Ouazzani, “Africa North of the Sahara and Arab Countries,” in
Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of In-
ternational Law, 385– 406 (Oxford University Press, 2012); and Dominque Gaurier,
Histoire du droit international: Auteurs, doctrines et développement de l’Antiquité à
l’aube de la période contemporaine (Presses universitaires de Rennes, 2005), 133– 42.
Especially useful is the introduction to Majid Khadduri (ed. and trans.), The Islamic
Law of Nations: Shaybani’s Siyar (Johns Hopkins University Press, 1966), 1–70. Chris-
toph A. Stumpf, “Christian and Islamic Traditions of Public International Law,” 7
JHIL 69–80 (2005) is a very brief overview but ser viceable as an introduction.
For a general survey of the Islamic perspective on international law (though with
little attention to its historical development), see Ahmed Rechid, “L’Islam et le droit
des gens,” 60 RdC 371–506 (1937). For a more recent treatment, in English, see Majid
Khadduri, War and Peace in the Law of Islam (Johns Hopkins University Press, 1955).
On freedom of trade in Islamic law, see Haniff Ahamat, “The Position of Siyar on Free
Trade: A Historico-Legal Analysis,” 12 JHIL 307–27 (2010). On the laws of war, see
John Kelsay, “Al-Shaybani and the Islamic Law of War,” 2 J. Military Ethics 63–75
(2003). For a thorough treatment of banditry, insurgency, and various forms of inter-
nal strife in Islamic law, see Khaled Abou El Fadl, Rebellion and Violence in Islamic
Law (Cambridge University Press, 2001). On the all-too-fashionable subject of jihad,
an indispensable source is Reuven Firestone, Jihad: The Origin of Holy War in Islam
(Oxford University Press, 1999). A more wide-ranging treatment in terms of time
coverage, bringing the subject up to the present day, is Richard Bonney, Jihad: From
Qur’an to Bin Laden (Palgrave Macmillan, 2004). Also highly useful is Patricia Crone,
God’s Rule: Government and Islam (Columbia University Press, 2004), 362–85. In ad-
dition, see Rudolph Peters, Islam and Colonialism: The Doctrine of Jihad in Modern
History (Mouton, 1979).
On the significance and impact of Innocent IV for the formation of natural law at-
titudes toward pagan and infidel rulers, an excellent source is James Muldoon, Popes,
Lawyers, and Infidels: The Church and the Non-Christian World 1250–1550 (Liverpool
University Press, 1970), 29– 48. A general history of the Crusades that devotes appro-
priate attention to legal issues is Christopher Tyerman, God’s War: A New History of
the Crusades (Penguin, 2006). Specifically on the application of just-war doctrine to
crusading, see Frederick H. Russell, The Just War in the Middle Ages (Cambridge Univer-
sity Press, 1975), 195–212. On the role of canon law in crusading, see James A. Brundage,
Medieval Canon Law and the Crusader (University of Wisconsin Press, 1969). For the
leading work on European attempts to implement and enforce trading bans against Mus-
lims, see Eliyahu Ashtor, Levant Trade in the Later Middle Ages (Princeton University
Press, 1983), 17–63.
On the litigation between the Teutonic Knights and the Polish-Lithuanian King-
dom at the Council of Constance, see Muldoon, Popes, Lawyers, and Infidels, 107–19;
Eric Christiansen, The Northern Crusades (Penguin, 1980), 227– 41; and Norman
Housley, The Later Crusades, 1274–1580: From Lyons to Alcazar (Oxford University
Press, 1992), 358– 65. On Vladimiri in par ticu lar, see C. H. Alexandrowicz, “Paulus
Vladimiri and the Development of the Doctrine of Coexistence of Christian and Non-
Christian Countries,” 39 BYBIL 441– 48 (1963).
Imperialism is one of the most elusive of subjects—at the same time, so important
and widespread but also covered only patchily in scholarly writing. For useful general
works on the subject, see Richard Kroeber, Empire (Cambridge University Press,
1961); and Anthony Pagden, Peoples and Empires: Europeans and the Rest of the World,
from Antiquity to the Present (Phoenix Press, 2001). On acquisition of colonial terri-
tory, see generally Andrew Fitzmaurice, “Discovery, Conquest, and Occupation of
Territory,” in Fassbender and Peters (eds.), Oxford Handbook, 840– 61. For an impor-
tant discussion of the Roman-law backdrop to the New World practices and debates,
see Lauren Benton and Benjamin Straumann, “Acquiring Empire by Law: From Ro-
man Doctrine to Early Modern European Practice,” 28 Law and History Review 1–38
(2010). For fascinating accounts of ceremonies of possession, see Arthur S. Keller, Oli-
ver J. Lissitzyn, and Frederick J. Mann, Creation of Rights of Sovereignty through Sym-
bolic Acts 1400–1800 (Columbia University Press, 1938); and (more recently) Patricia
Seed, Ceremonies of Possession in Europe’s Conquest of the New World, 1492–1640
(Cambridge University Press, 1995). Both of these works provide country-by-country
surveys of state practice. On the dispute between Spain and Portugal over legal title to
the Canary Islands, the principal work is Joseph F. O’Callaghan, “Castile, Portugal,
and the Canary Islands: Claims and Counterclaims, 1344–1479,” 24 Viator 287–310
(1993). See also Felipe Fernández-Armesto, Before Columbus: Exploration and Coloni-
sation from the Mediterranean to the Atlantic, 1229–1492 (Macmillan, 1987), 153–59,
171–92, 207–12.
On the nature of Spanish rights in and to the New World, see generally Anthony
Pagden, Spanish Imperialism and the Political Imagination (Yale University Press,
1990), 13–36; David A. Lupher, Romans in a New World: Classical Models in Sixteenth-
Century Spanish America (University of Michigan Press, 2003); J. H. Parry, The Span-
ish Theory of Empire in the Sixteenth Century (Cambridge University Press, 1940);
Muldoon, Popes, Lawyers and Infidels, 132–52; and Lindsay G. Robertson, Conquest
by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands
(Oxford University Press, 2005). On the institution of the requerimiento, see Seed,
Ceremonies of Possession, 72–94; and James Muldoon, “John Wyclif and the Rights of
the Infidels: The Requerimiento Re-Examined,” 36 Americas 301–16 (1980). On the
humanitarian justification for conquests, there is much of interest in Daniel Schwartz,
“The Principle of the Defence of the Innocent and the Conquest of America: ‘Save
Those Dragged towards Death,’ ” 9 JHIL 263–91 (2007). On the principle of res nullius
(rendered, somewhat anachronistically, as terra nullius), see David Boucher, “The Law
of Nations and the Doctrine of Terra Nullius,” in Olaf Asbach and Peter Schröder
(eds.), War, the State and International Law in Seventeenth-Century Europe, 63–82
(Ashgate, 2010). For an instructive comparative survey of the various European em-
pires in the New World, see Anthony Pagden, Lords of All the World: Ideologies of
Empire in Spain, Britain and France c. 1500–c. 1800 (Yale University Press, 1995).
On the Spanish attitudes toward the Indians, see Lewis Hanke, The Spanish Strug-
gle for Justice in the Conquest of America (University of Pennsylvania Press, 1949);
Lewis Hanke, Aristotle and the American Indians: A Study in Race Prejudice in the
Modern World (Hollis and Carter, 1959); and Patricia Seed, “ ‘Are These Not Also
Men?’: The Indian’s Humanity and Capacity for Spanish Civilization,” 25 J. Latin Am.
Stud. 629–52 (1993). On the great debate at Valladolid between Las Casas and
Sepúlveda, see Lewis Hanke, All Mankind Is One: A Study of the Disputation between
Bartolomé de las Casas and Juan Ginés de Sepúlveda in 1550 on the Intellectual and
Religious Capacity of the American Indians (Northern Illinois University Press, 1974),
57–112; Hanke, Spanish Struggle, 113–32; and Lupher, Romans in a New World, 133–
49. On Sepúlveda’s case in that debate, see Ángel Losada, “The Controversy between
Sepúlveda and Las Casas in the Junta of Valladolid,” in Juan Friede and Benjamin
Keen (eds.), Bartolomé de Las Casas in History: Toward an Understanding of the Man
and His Work, 279–306 (Northern Illinois University Press, 1971).
Various individual figures from this period have been the subject of scholarly at-
tention, and none more than Vitoria. On this seminal figure, see Martin C. Ortega,
“Vitoria and the Universalist Conception of International Relations,” in Ian Clark and
Iver B. Neumann (eds.), Classical Theories of International Relations, 99–119 (Mac-
millan, 1996); Antony Anghie, Imperialism, Sovereignty and the Making of Interna-
tional Law (Cambridge University Press, 2007), 13–31; J. A. Fernandez-Santamaria,
The State, War and Peace: Spanish Political Thought in the Renaissance 1516–1559
(Cambridge University Press, 1977), 58–119; David Kennedy, “Primitive Legal Schol-
arship,” 27 Harvard Int’l L. J. 1–98 (1986), 13– 40; Gustavo Gozzi, Diritti e civilità:
Storia e filosofia del diritto internazionale (Il Mulino, 2010), 26–38; Muldoon, Popes,
Lawyers, and Infidels, 143–50; Ramón Hernández, “The Internationalization of Fran-
cisco de Vitoria and Domingo de Soto,” 15 Fordham Int’l L. J. 1031–59 (1991), 1033–
48; and Pablo Zapatero, “Legal Imagination in Vitoria: The Power of Ideas,” 11 JHIL
221–71 (2009).
For a thorough study of Juan de Solórzano Pereira, see James Muldoon, The Ameri-
cas in the Spanish World Order: The Justification for Conquest in the Seventeenth Cen-
tury (University of Pennsylvania Press, 1994). On José de Acosta, see Claudio M.
Burgaleta, José de Acosta (1540–1600): His Life and Thought (Loyola University Press,
1999). On las Casas, the leading biography is Lawrence A. Clayton, Bartolomé de las
Casas (Cambridge University Press, 2012), especially 347–76 on the debate against
Sepúlveda. See also Parry, Spanish Theory, 45–56; and Hanke, All Mankind, 73–112.
On Sepúlveda, see Parry, Spanish Theory, 31– 43. On Vázquez, see Camilo Barcia
Trelles, “Fernando Vázquez de Menchaca (1512–1569): L’école espagnole du droit in-
ternational du XVIe siècle,” 67 RdC 429–534 (1939), with attention to the issue of
freedom of the seas at 494–518; and Kurt Seelmann, Die Lehre des Fernando Vázquez
de Menchaca vom Dominium (Heymanns, 1979). On John Selden, see G. J. Toomer,
John Selden: A Life in Scholarship (2 vols; Oxford University Press, 2009), especially
vol. 1, 388– 437, concerning his stance on law of the sea; and Eric G. M. Fletcher, “John
Selden (Author of Mare Clausum) and His Contribution to International Law,” 19
Grotius Soc. Trans. 1–12 (1933).
On English colonization practice, a leading work is Ken MacMillan, Sovereignty
and Possession in the English New World: The Legal Foundations of Empire, 1576–1640
(Cambridge University Press, 2006). For a shorter and particularly insightful discus-
sion, see Anthony Pagden, “Law, Colonization, Legitimation, and the European Back-
ground,” in Michael Grossberg and Christopher Tomlins (eds.), The Cambridge His-
tory of Law in America: Early America (1580–1815), vol. 1, 1–31 (Cambridge University
Press, 2008). See also Anthony Pagden, “The Struggle for Legitimacy and the Image of
Empire in the Atlantic to c. 1700,” in Nicholas Canny (ed.), The Origins of Empire:
British Overseas Enterprise to the Close of the Seventeenth Century, 34–54 (Oxford
University Press, 1998); and Brian Slattery, “Paper Empires: The Legal Dimensions of
French and English Ventures in North America,” in John McLaren, A. R. Buck, and
Nancy E. Wright (eds.), Despotic Dominion: Property Rights in British Settler Societies,
50–78 (University of British Columbia Press, 2005). On the treatment of discovery in
English law and colonial practice, see Robert J. Miller, Jacinta Ruru, Larissa Behrendt,
and Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the
English Colonies (Oxford University Press, 2010), especially 9–22.
On legal aspects of European relations with American Indians, the leading work is
Robert A. Williams Jr., The American Indian in Western Legal Thought: The Discourses
of Conquest (Oxford University Press, 1990). See also Dorothy V. Jones, License for
Empire: Colonialism by Treaty in Early America (University of Chicago Press, 1982);
Cynthia Van Zandt, Brothers among Nations: The Pursuit of Intercultural Alliances in
Early America, 1580–1660 (Oxford University Press, 2008); and Francis Paul Prucha,
American Indian Treaties: The History of a Political Anomaly (University of California
Press, 1997).
In comparison to the New World, there has been far less attention devoted to legal
aspects of the situation in the Indian Ocean world. The leading work in the field con-
tinues to be C. H. Alexandrowicz, An Introduction to the History of the Law of Nations
in the East Indies (16th, 17th and 18th Centuries) (Oxford University Press (1967). See,
in addition, R. P. Anand, “Maritime Practice in South-East Asia until 1600 a.d. and
the Modern Law of the Sea,” 30 ICLQ 440–54 (1981). On treaty relations between Eu-
ropean and Asian powers, see C. H. Alexandrowicz, “Treaty and Diplomatic Relations
between European and South Asian Powers in the Seventeenth and Eighteenth Cen-
turies,” 100 RdC 203–322 (1960); and, more briefly, Cornelis G. Roelofsen, “Treaties
between European and Non-European Powers in Early Modern and Modern Times
(16th–20th Centuries),” in Th ilo Marauhn and Heinhard Steiger (eds.), Universality
and Continuity in International Law, 409–17 (Eleven International, 2011). On the de-
bate over freedom of the seas between Grotius and Freitas, see Alexandrowicz, Intro-
duction, 41–71; and Monica Brito Vieira, “Mare Liberum vs. Mare Clausum: Grotius,
Freitas, and Selden’s Debate on Dominion over the Seas,” 64 J. Hist. Ideas 361–77
(2003).
4. Putting Nature and Nations Asunder

For a detailed study of the Congress of Westphalia, see Paul Sonnino, Mazarin’s
Quest: The Congress of Westphalia and the Coming of the Fronde (Harvard University
Press, 2008). On the substantive peace terms themselves, see Joachim Whaley, Ger-
many and the Holy Roman Empire: From Maximilian I to the Peace of Westphalia
1493–1648 (Oxford University Press, 2012), vol. 1, 619–31. For detailed analysis from a
wide variety of standpoints, see Heinz Duchhardt and Eva Ortlieb (eds.), Der West-
fälische Friede: Diplomatie, politische Zäsur, kulturelles Umfeld, Rezeptionsgeschichte
(R. Oldenbourg, 1998). See also Derek Croxton, “The Peace of Westphalia of 1648 and the
Origins of Sovereignty,” 21 Int’l Hist. Rev. 569–91 (1999). For the traditional view of the
Peace of Westphalia as marking the beginning of the modern state system, see Adam
Watson, The Evolution of International Society (Routledge, 1992), 182–97. For more skep-
tical views on this point, see Stéphane Beaulac, “The Westphalian Legal Orthodoxy—
Myth or Reality?” 2 JHIL 148–77 (2000); and Andreas Osiander, “Sovereignty, Interna-
tional Relations, and the Westphalian Myth,” 55 International Organization 251–87
(2001).
On international politics in the period, see Olaf Asbach and Peter Schröder (eds.),
War, the State and International Law in Seventeenth-Century Europe (Ashgate, 2010).
On the significance of Machiavelli in the history of international law, see Martin
Wight, Four Seminal Thinkers in International Theory: Machiavelli, Grotius, Kant, and
Mazzini (Oxford University Press, 2004), 3–28; David Boucher, Political Theories of
International Relations: From Thucydides to the Present (Oxford University Press,
1998), 90–113; J. R. Hale, “Machiavelli and the Self-Sufficient State,” in David Thomson
(ed.), Political Ideas, 22–33 (Penguin, 1966); Frank M. Russell, Theories of International
Relations (D. Appleton-Century, 1936), 119–24; and Charles Benoist, “L’influence des
idées de Machiavel,” 9 RdC 127–306 (1925). On Bodin, see Torbjørn L. Knutsen, A His-
tory of International Relations Theory (2nd ed.; Manchester University Press, 1997),
58– 64; Julian H. Franklin, Jean Bodin and the Sixteenth-Century Revolution in the
Methodology of Law and History (Columbia University Press, 1963); Helmut Quar-
itsch, “Bodins Souveränitet und das Völkerrecht,” 17 AdR 257–73 (1978); F. H. Hinsley,
Sovereignty (2nd ed; Cambridge University Press, 1986), 179–86; André Gardot, “Jean
Bodin: Sa place parmi les fondateurs du droit international,” 50 RdC 545–747 (1934);
and J. W. Allen, A History of Political Thought in the Sixteenth Century (Methuen,
1928), 394–446.
Figures more specifically active in international law have also received some atten-
tion, though sometimes less than they merit. On Pierino Belli, see Angelo Piero
Sereni, The Italian Conception of International Law (Columbia University Press,
1943), 93–99. On Balthasar Ayala, see W. S. M. Knight, “Balthazar Ayala and His
Work,” 3 (3rd ser.) J. Comp. Leg. and Int’l L. 220–27 (1921). Gentili has received rather
more attention. See Gesina van der Molen, Alberico Gentili and the Development of
International Law (S. W. Sijthoff, 1968); Benedict Kingsbury and Benjamin Strau-
mann (eds.), The Roman Foundations of the Law of Nations: Alberico Gentili and the
Justice of Empire (Oxford University Press, 2010); Sereni, Italian Conception, 64– 65,
102–17; and David Kennedy, “Primitive Legal Scholarship,” 27 Harvard Int’l L. J. 1–98
(1986), 57–76. On Vitoria’s views on customary law and the ius gentium, see Brian
Tierney, “Vitoria and Suárez on Ius Gentium, Natural Law, and Custom,” in Amanda
Perreau-Saussine and James Bernard Murphy (eds.), The Nature of Customary Law:
Legal, Historical and Philosophical Perspectives, 101–24 (Cambridge University Press,

2007), 110–14.
On Suárez, see Josef Soder, Francisco Suárez und das Völkerrecht: Grundgedanken
zu Staat, Recht und internationalen Beziehungen (Alfred Metzner, 1973). For an older
biography in English, see Joseph H. Fichter, Man of Spain: Francisco Suárez (Macmil-
lan, 1940). See also Brian Tierney, “Vitoria and Suárez,” 114–24; Matthias Lutz-
Bachmann, “The Concept of the Normativity of Law: ‘Ius Gentium’ in the Writings of
Francisco Suárez and Thomas Aquinas,” in Thilo Marauhn and Heinhard Steiger
(eds.), Universality and Continuity in International Law, 235– 47 (Eleven Interna-
tional, 2011), 235– 42; Arthur Nussbaum, A Concise History of the Law of Nations (2nd
ed.; Macmillan, 1954), 84–91; Kennedy, “Primitive Legal Scholarship,” 40–57; James
Brown Scott, “Francisco Suárez: His Philosophy of Law and of Sanctions,” 22 George-
town L. J. 405–518 (1934); and Paul Guggenheim, “Contributions à l’histoire des
sources du droit des gens,” 94 RdC 1–84 (1958), 20–27.
Hugo Grotius has attracted the most attention of writers of this period. To consult
the leading work on Grotius’s life and thought, knowledge of Dutch is necessary. See
H. J. M. Nellen, Hugo de Groot: Een Leven in Strijd om de Vrede, 1583–1645 (Amster-
dam: Balans, 2007). In English, see W. S. M. Knight, The Life and Works of Hugo Gro-
tius (Sweet and Maxwell, 1925); Edward Dumbauld, The Life and Legal Writings of
Hugo Grotius (University of Oklahoma Press, 1969); and Charles S. Edwards, Hugo
Grotius, the Miracle of Holland: A Study in Legal and Political Thought (Nelson-Hall,
1981). Excellent short summations of Grotius’s ideas may be found in Nussbaum, Con-
cise History, 107–14; and Hinsley, Sovereignty, 186–93. In the Introduction to Hugo
Grotius in On the Law of War and Peace (ed. by Stephen C. Neff ; Cambridge Univer-
sity Press, 2012), xiii–xxxv, the stress is placed on Grotius as the heir to traditions of
the past. Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Presses univer-
sitaires de France, 1983) also sees Grotius as a continuer of the Scholastic tradition.
For Grotius as a pioneer of modern thought, see Richard Tuck, The Rights of War and
Peace: Political Thought and the International Order from Grotius to Kant (Oxford
For close attention to Grotius’s role in international law and international relations,
see Wight, Four Seminal Thinkers, 29– 61; Hedley Bull, Adam Roberts, and Benedict
Kingsbury (eds.), Hugo Grotius and International Relations (Clarendon Press, 1990);
John Murphy, “The Grotian Vision of World Order,” 76 AJIL 477–98 (1982); and Ken-
nedy, “Primitive Legal Scholarship,” 76–95. A classic treatment of this topic is H.
Lauterpacht, “The Grotian Tradition in International Law,” 23 BYIBL 1–53 (1946). For
an updated consideration of the subject, see Randall Lesaffer, “The Grotian Tradition
Revisited— Change and Continuity in the History of International Law,” 73 BYBIL
103–39 (2002). For contributions by a range of Japa nese scholars, see Yasuaki Onuma
(ed.), A Normative Approach to War: Peace, War, and Justice in Hugo Grotius (Oxford
University Press, 1993). For Grotius’s position on just wars, the leading work is
Haggenmacher, Grotius et la doctrine de la guerre juste. See also Gustavo Gozzi,

Diritti e civilità: Storia e filosofia del diritto internazionale (Il Mulino, 2010), 47–74.
There is an ocean of literature on Thomas Hobbes. Of par ticu lar note from the
standpoint of international relations and international law are Boucher, Political The-
ories, 145– 67; Jonathan Haslam, No Virtue Like Necessity: Realist Thought in Interna-
tional Relations since Machiavelli (Yale University Press, 2002), 50–56; Cornelia Na-
vari, “Hobbes, the State of Nature and the Law of Nations,” in Ian Clark and Iver B.
Neumann, eds.. Classical Theories of International Relations, 20– 41 (Macmillan,
1996); and Tuck, Rights of War and Peace, 109–39. For an explicit contrast between
Grotius and Hobbes, see Edwin De Witt Dickinson, The Equality of States in Interna-
tional Law (Harvard University Press, 1920), 69–75.
On the division of European international lawyers into the Grotian and the natu-
ralist camps, see Dominque Gaurier, Histoire du droit international: Auteurs, doc-
trines et développement de l’Antiquité à l’aube de la période contemporaine (Presses
universitaires de Rennes, 2005), 167–76. Grotius’s immediate followers have not, as
yet, attracted a great deal of scholarly attention. On Rachel, see Tetsuya Toyoda, The-
ory and Politics of the Law of Nations : Political Bias in International Law Discourse of
Seven German Court Councilors in the Seventeenth and Eighteenth Centuries (Marti-
nus Nijhoff, 2011), 51–80.
The naturalists have, so far, received greater attention than the Grotians, with
Pufendorf in the clear lead. On his opposition to the concept of a voluntary law of na-
tions, see Toyoda, Theory and Politics, 30–39; and Nussbaum, Concise History, 147–
50. For a general account of Pufendorf’s career and thought, see Leonard Krieger, The
Politics of Discretion: Samuel Pufendorf and the Acceptance of Natural Law (University
of Chicago Press, 1965). This contains, however, only a little about his contribution to
international law (164– 69). For greater attention to this aspect of his thought, see
Boucher, Political Theories, 223–54; Tuck, Rights of War and Peace, 140– 65; Walter
Schiffer, The Legal Community of Mankind: A Critical Analysis of the Modern Concept
of World Organization (Columbia University Press, 1954), 49– 63; and Gossi, Diritti
e civilità, 78–87. Andrew Linklater, “Rationality and Obligation in the States-System:
The Lessons of Pufendorf’s Law of Nations,” 9 Millennium J of Int’l Studies 215–28
(1980) analyzes Pufendorf from a neo-Kantian perspective.
On the significance of Spinoza for international law, see H. Lauterpacht, “Spinoza
and International Law,” 8 BYBIL 89–107 (1927). On the relationship of Rousseau to
Hobbes, see Tuck, Rights of War and Peace, 197–207. On Samuel Cocceji, see Toyoda,
Theory and Politics, 135– 48.
5. Of Spiders and Bees

For a general overview of international law in the period, see Heinz Duchhardt,
“From the Peace of Westphalia to the Congress of Vienna,” in Bardo Fassbender and
Anne Peters (eds.), The Oxford Handbook of the History of International Law, 628–53
(Oxford University Press, 2012). Emmanuelle Jouannet, The Liberal-Welfarist Law of

Nations: A History of International Law (trans. by Christopher Sutcliffe; Cambridge
University Press, 2012), an extended essay rather than a narrative history, identifies
this period as a time when what she calls “the law of nations of the Moderns” began to
focus on the promotion of well-being and happiness (i.e., on “perfection”) in addition
to its prior focus on the rights and freedoms of states.
Several areas of state practice have received at least a modicum of attention. For an
excellent brief overview of international law and diplomacy in the seventeenth century,
see George Clark, The Seventeenth Century (2nd ed.; Oxford University Press, 1947),
124–39. On legal aspects of balance-of-power considerations, see Alfred Vagts and
Detlev F. Vagts, “The Balance of Power in International Law: The History of an Idea,”
73 AJIL 555–80 (1979). On legal aspects of peace-treaty practice, see Randall Lesaffer,
“Paix et guerre dans les grands traités du dix-huitième siècle,” 7 JHIL 25–41 (2005). On
the development of the laws of war, see Geoffrey Best, Humanity in Warfare: The Mod-
ern History of the International Law of Armed Conflicts (Weidenfeld and Nicolson,
1980). See also Stephen C. Neff, War and the Law of Nations: A General History (Cam-
bridge University Press, 2005), 83–158. On neutrality, see Stephen C. Neff, The Rights
and Duties of Neutrals: A General History (Manchester University Press, 2000), 27– 60.
Richard Pares, Colonial Blockade and Neutral Rights 1739–1763 (Cambridge University
Press, 1938) contains much valuable information on privateering (1–76) and the opera-
tion of prize courts (77–147). For surveys of the various peace plans that were put for-
ward (without success) during the period, see Sylvester John Hemleben, Plans for
World Peace through Six Centuries (University of Chicago Press, 1943), 21–85.
Several aspects of treaty making during the period have received scholarly treat-
ment. On the development of neutrality law by means of treaties of amity and com-
merce, see Neff, Rights and Duties of Neutrals, 27–38. On the development of most-
favored-nation agreements, see Joseph Koulischer, “Les traités de commerce et la
clause de la nation la plus favorisée du XVIe au XVIIIe siècle,” 6 Revue d’Histoire
Moderne 3–29 (1931). On the capitulation agreements made by various European
states with the Ottoman Empire, see Maurits H. van den Boogert, The Capitulations
and the Ottoman Legal System: Qadis, Consuls, and Beraths in the 18th Century (Brill,
2005); and, more briefly, Umut Özsu, “Ottoman Empire,” in Fassbender and Peters
(eds.), Oxford Handbook, 429– 48. On peace treaties between European states and the
Ottoman Empire, see Karl-Heinz Ziegler, “The Peace Treaties of the Ottoman Empire
with European Christian Powers,” in Randall Lesaffer (ed.), Peace Treaties and Inter-
national Law in European History: From the Late Middle Ages to World War One, 338–
64 (Cambridge University Press, 2004).
For an informative discussion of developments in the law of the sea, see Wyndham
L. Walker, “Territorial Waters: The Cannon Shot Rule,” 22 BYBIL 210–31 (1945). Some
literature exists dealing with specific international legal disputes of the period. Nota-
ble in this respect is Ernest Satow, The Silesian Loan and Frederick the Great (Claren-
don Press, 1915).
Various writers in the field have attracted the attention of scholars. There is a vast
literature on Leibniz—scarcely surprising for such a polymath. On his contribution to
international law, see Janne Elisabeth Nijman, The Concept of International Legal Per-
sonality: An Inquiry into the History and Theory of International Law (T. M. C. Asser
Press, 2004), 58–80; and Tetsuya Toyoda, Theory and Politics of the Law of Nations:
Political Bias in International Law Discourse of Seven German Court Councilors in the
Seventeenth and Eighteenth Centuries (Martinus Nijhoff, 2011), 81–101. Both of these
focus on his views on state sovereignty and international personality. See also J. Wal-
ter Jones, “Leibniz as International Lawyer,” 22 BYBIL 1–10 (1945); and Paul Schrecker,
“Leibniz’s Principles of International Justice,” 7 J. Hist. Ideas 484–98 (1946).
Wolff has received comparatively little attention, especially in English—a reflection
of his being overshadowed by a towering predecessor (Leibniz) and successor (Kant).
For an overview of his philosophy generally, see Lewis White Beck, Early German
Philosophy: Kant and His Predecessors (Harvard University Press, 1969), 256–75. See
also Leonard Krieger, The German Idea of Freedom: History of a Political Tradition
(University of Chicago Press, 1957), 66–71. On Wolff ’s views on international rela-
tions specifically, see Walter Schiffer, The Legal Community of Mankind: A Critical
Analysis of the Modern Concept of World Organization (Columbia University Press,
1954), 63–78; and Arthur Nussbaum, A Concise History of the Law of Nations (2nd ed.;
Macmillan, 1954), 150–56.
Kant, even more than Leibniz, has been the subject of a torrent of literature. For an
excellent overview of his moral philosophy in general, see J. B. Schneewind, “Auton-
omy, Obligation, and Virtue: An Overview of Kant’s Moral Philosophy,” in Paul Guyer
(ed.), The Cambridge Companion to Kant, 309– 41 (Cambridge University Press, 1992).
For the minute fraction of the writing on Kant that is particularly relevant to interna-
tional law, see Howard Willims and Ken Booth, “Kant: Theorist beyond Limits,” in
Ian Clark and Iver B. Neumann (eds.), Classical Theories of International Relations,
71–98 (Macmillan, 1996); Georg Cavallar, Kant and the Theory and Practice of Inter-
national Right (University of Wales Press, 1999); Charles Covell, Kant and the Law of
Peace: A Study in the Philosophy of International Law and International Relations
(Palgrave, 1998); Gustavo Gozzi, Diritti e civilità: Storia e filosofia del diritto inter-
nazionale (Il Mulino, 2010), 97–130; Georg Cavallar, Imperfect Cosmopolis: Studies in
the History of International Legal Theory and Cosmopolitan Ideas (University of Wales
Press, 2011), 64–84; and Martin Wight, Four Seminal Thinkers in International The-
ory: Machiavelli, Grotius, Kant, and Mazzini (Oxford University Press, 2004), 63–87.
On the relation between Kant and Hobbes, see Richard Tuck, The Rights of War and
Peace: Political Thought and the International Order from Grotius to Kant (Oxford
University Press, 1999), 207–25. On Kant’s proposal for perpetual peace in par ticu lar,
see Hemleben, Plans for World Peace, 87–95.
Other writers have, so far, received much less attention. On Bynkershoek, see Kinji
Akashi, Cornelius van Bynkershoek: His Role in the History of International Law (Klu-
wer, 1998). Nussbaum, Concise History, gives brief but useful accounts of the contri-
butions of Zouche (164– 67), Rachel (172–74), and Moser (175–79). Also on Moser, see
Cavallar, Imperfect Cosmopolis, 93–96; Mack Walker, Johann Jakob Moser and the
Holy Roman Empire of the German Nation (University of North Carolina Press, 1981),
337– 42; Toyoda, Theory and Politics, 149– 60; and Albert Leschhorn, Johann Jakob
Moser und die Eidgenossenschaft (Juris, 1965), 44– 49. Martens is outstandingly ne-
glected. But see Nussbaum, Concise History, 179–85; and Martti Koskenniemi, “On
International Legal Positivism— Georg Friedrich von Martens’ (1756–1821) Influence
on International Law” (Göttingen, 2005; available on the internet, at www.helsinki.fi/
eci/Publications/Koskenniemi).
Vattel has only very recently begun to receive a degree of scholarly attention compa-
rable to the influence that he had. For important steps in this direction, see Emmanu-
elle Jouannet, L’émergence doctrinale du droit international classique: Emer de Vattel et
l’école de droit de la nature et des gens (Pedone, 1998); and Vincent Chetail and Peter
Haggenmacher (eds.), Vattel’s International Law in a XXIst Century Perspective (Mar-
tinus Nijhoff, 2011). For an older contribution that can still be read with great profit, see
Charles G. Fenwick, “The Authority of Vattel,” 7 Am. Pol. Sci. Rev. 395–410 (1913) and
8 Am. Pol. Sci. Rev. 375–92 (1914). See also Andrew Hurrell, “Vattel: Pluralism and Its
Limits,” in Clark and Neumann (eds.), Classical Theories, 233–55. Isaac Nakhimovsky,
“Vattel’s Theory of the International Order: Commerce and the Balance of Power in the
Law of Nations,” 33 History of European Ideas 157–73 (2007) stresses Vattel’s intellec-
tual debt to Wolff. For a brief survey of Vattel’s overall contribution to international
law, see Nussbaum, Concise History, 156– 64. On Vattel’s views on sovereignty issues,
see Toyoda Tesuya, “La doctrine vattelienne de l’égalité souveraine dans le context
neuchâtelois,” 11 JHIL 103–24 (2009); and Toyoda, Theory and Politics, 161–90. On Vat-
tel and neutrality, see Stefan Oeter, “Neutrality and Alliances,” in Chetail and Haggen-
macher (eds.), Vattel’s International Law, 336–47. On Vattel and the law of war, see
Stephen C. Neff, “Vattel and the Laws of War: A Tale of Three Circles,” in Chetail and
Haggenmacher (eds.), Vattel’s International Law, 317–33. On his impact in the United
States in the early postindependence period, see Brian Richardson, “The Use of Vattel
in the American Law of Nations,” 106 AJIL 547–71 (2012), 548– 60.
On international law issues and debates in the newly emerged United States, see
Daniel G. Lang, Foreign Policy in the Early Republic: The Law of Nations and the Bal-
ance of Power (Louisiana State University Press, 1985). In the area of neutrality, the
new country was especially active. See Charles S. Hyneman, The First American Neu-
trality: A Study of the American Understanding of Neutral Obligations during the Years
1792 to 1815 (University of Illinois Press, 1934); and Charles Marion Thomas, Ameri-
can Neutrality in 1793: A Study in Cabinet Government (Columbia University Press,
1931). For detailed information on legal disputes between the United States and Brit-
ain leading up to the War of 1812, see Bradford Perkins, Prologue to War: England and
the United States 1805–1812 (University of California Press, 1961).
On the French Revolutionary period, see Marc Belissa, Fraternité universelle et inté-
ret national (1713–1795): Les cosmopolitiques du droit des gens (Kimé, 1998). On the
French Declaration of Peace of 1790, see David A. Bell, The First Total War: Napoleon’s
Europe and the Birth of Modern Warfare (Bloomsbury, 2007), 87–109; and Belissa,
Fraternité universelle, at 179–97. On the Abbé Grégoire’s codification plan, see Belissa,
Fraternité universelle, 365–77, 419–20. On legal justifications for the wars of that pe-
riod, an invaluable study is T. C. W. Blanning, The Origins of the French Revolutionary
Wars (Longman, 1986). See also Patricia Chastain Howe, Foreign Policy and the
French Revolution: Charles-Francois Dumouriez, Pierre Lebrun, and the Belgian Plan,
1789–1793 (Palgrave Macmillan, 2008). On neutrality issues during the wars, see
W. Alison Phillips and Arthur H. Reede, Neutrality: Its History, Economics and Law.
The Napoleonic Period (Columbia University Press, 1936).
On the contribution of Jeremy Bentham to international law, see Mark W. Janis,
“Jeremy Bentham and the Fashioning of ‘International Law,’ ” 78 AJIL 405–18 (1984);
and Georg Schwarzenberger, “Bentham’s Contribution to International Law and Or-
ganisation,” in George W. Keeton and Georg Schwarzenberger (eds.), Jeremy Bentham
and the Law: A Symposium (Stevens and Sons, 1948) , 152–84. On Bentham’s plan for
world peace, see Hemleben, Plans for World Peace, 82–87. For an admirable study of
William Scott’s legal career, see generally Henry Bourguignon, Sir William Scott, Lord
Stowell: Judge of the High Court of Admiralty (Cambridge University Press, 1987), es-
pecially 115–242, where his contributions to prize law are discussed.
6. Breaking with the Past

On international law in the nineteenth century, see generally Alexander Orakhelash-
vili, “The 19th-Century Life of International Law,” in Alexander Orakhelashvili (ed.),
Research Handbook on the Theory and History of International Law, 441–55 (Edward
Elgar, 2011); Miloš Vec, “From the Congress of Vienna to the Paris Peace Treaties of
1919,” in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the His-
tory of International Law, 654–78 (Oxford University Press, 2012); David Kennedy,
“International Law and the Nineteenth Century: History of an Illusion,” 65 Nordic J.
Int’l L. 385– 420 (1996); and Martti Koskenniemi, The Gentle Civilizer of Nations: The
Rise and Fall of International Law 1870–1960 (Cambridge University Press, 2001). On
international law in Britain in the period, see Casper Sylvest, “International Law in
Nineteenth-Century Britain,” 75 BYBIL 9–70 (2004).
On positivism in general, see Antony Anghie, Imperialism, Sovereignty and the
Making of International Law (Cambridge University Press, 2007), 40–52. As usual,
there is uneven coverage of individual writers. Austin, for example, has received sur-
prisingly little detailed attention, considering his central role in the development of
positivism in law. See W. L. Morison, John Austin (Edward Arnold, 1982), a critical
work that gives brief attention to Austin’s views on international law. See also Wilfrid
E. Rumble, Doing Austin Justice: The Reception of John Austin’s Philosophy of Law in
Nineteenth-Century England (Continuum, 2005); Wilfried Löwenhaupt, Politischer
Utilitarismus und bürgerliches Rechtsdenken: John Austin (1790–1859) und die Philoso-
phie des positiven Rechts (Duncker und Humblot, 1972); and C. E. Merriam Jr., History
of the Theory of Sovereignty since Rousseau (Columbia University Press, 1900), 130–57.
On the challenge posed by Austin to international law, see Michael Lobban, “English
Approaches to International Law in the Nineteenth Century,” in Matthew D. R. Cra-
ven, M. Fitzmaurice, and Maria Vogiatzi (eds.), Time, History and International Law,
65–90 (Martinus Nijhoff, 2007), 78–88.
On Wheaton, see Mark W. Janis, The American Tradition of International Law:
Great Expectations 1789–1914 (Oxford University Press, 2004), 40– 48; and Randall
Lesaffer, “Roman Law and the Early Historiography of International Law: Ward,
Wheaton, Hosack and Walker,” in Th ilo Marauhn and Heinhard Steiger (eds.), Uni-
versality and Continuity in International Law, 149–84 (Eleven International, 2011),
160– 69, who firmly presents him as a middle-ground or transitional figure rather
than as a true positivist. Heffter has been seriously neglected. Ingo J. Hueck, “Pragma-
tism, Positivism and Hegelianism in the Nineteenth Century: August Wilhelm Heff-
ter’s Notion of Public International Law,” in Michael Stolleis and Masaharu Yanagi-
hara (eds.), East Asian and European Perspectives on International Law, 41–55
(Nomos, 2004) actually contains only a small amount of material on him. A. Pearce
Higgins, “La contribution de quatre grands juristes britaniques au droit interna-
tional,” 40 RdC 1–85 (1932) is a very useful work, dealing with Westlake (23– 43) and
Hall (44– 65).
Oppenheim is unusual in being lavishly attended to. See Walter Schiffer, The Legal
Community of Mankind: A Critical Analysis of the Modern Concept of World Organi-
zation (Columbia University Press, 1954), 79–96; Mathis Schmoeckel, “Lassa Oppen-
heim (1858–1919),” in Jack Beatson and Reinhard Zimmermann (eds.), Jurists Up-
rooted: German-Speaking Émigré Lawyers in Twentieth-Century Britain, 538–99
(Oxford University Press, 2004); Benedict Kingsbury, “Legal Positivism as Normative
Politics: International Society, Balance of Power and Lassa Oppenheim’s Positive In-
ternational Law,” in Stolleis and Yanagihara (eds.), East Asian and European Perspec-
tives, 139–77; Amanda Perreau-Saussine, “A Case Study on Jurisprudence as a Source
of International Law: Oppenheim’s Influence,” in Craven, Fitzmaurice, and Vogiatzi
(eds.), Time, History and International Law, 91–117; and Mathias Schmoeckel, “The
Story of a Success: Lassa Oppenheim and His ‘International Law’,” in Stolleis and
Yanagihara (eds.), East Asian and European Perspectives, 57–138.
Anzilotti has also received a reasonable degree of attention. See Angelo Piero
Sereni, The Italian Conception of International Law (Columbia University Press,
1943), 213– 44; and Giorgio Gaja, “Positivism and Dualism in Dionisio Anzilotti,” 3
EJIL 123–38 (1992). On his seminal contribution to the law of state responsibility in
par ticu lar, see Pierre-Marie Dupuy, “Dionisio Anzilotti and the Law of International
Responsibility of States,” 3 EJIL 139–48 (1992). The major treatment of Triepel is Ulrich
M. Gassner, Heinrich Triepel: Leben und Werk (Duncker und Humblot, 1999). See also
Alexander Hollerbach, “Zu Leben und Werk Heinrich Triepels,” 91 Archiv für öffentli-
chen Rechts 417– 41, 551–57 (1966). In English, there is a very short, but excellent,
account of his contribution in Jochen von Bernstorff and Thomas Dunlap, The Public
International Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge
University Press, 2010), 38– 42.
On Hegel, there is an astonishing quantity of writing. Concerning his relevance for
international law, the best source is William E. Conklin, Hegel’s Laws: The Legitimacy
of a Modern Legal Order (Stanford University Press, 2008), 270–98. See also Howard
Williams, International Relations in Political Theory (Open University Press, 1992),
92–104; Andrew Linklater, “Hegel, the State and International Relations,” in Ian Clark
and Iver B. Neumann (eds.), Classical Theories of International Relations, 193–209
(Macmillan, 1996); and David Boucher, Political Theories of International Relations:
From Thucydides to the Present (Oxford University Press, 1998), 330–53. For Hegel’s
views on war, see Christopher Coker, Barbarous Philosophers: Reflections on the Nature
of War from Heraclitus to Heisenberg (Hurst, 2010), 193–206.
Gierke is another figure who is reasonably well known outside of the German-
speaking world (though far less than Hegel). On his relevance to international law, see
John D. Lewis, The Genossenschaft-Theory of Otto von Gierke: A Study in Political
Thought (University of Wisconsin Studies in the Social Sciences and History, 1935).
For a shorter, but excellent, exposition of his ideas, see David Runciman, Pluralism
and the Personality of the State (Cambridge University Press, 1997), 34– 63. On his
organic theory of the state, see Merriam, History of the Theory of Sovereignty, 114–20.
For a capsule summary, see Wolfgang Friedmann, Legal Theory (5th ed.; Stevens and
Sons, 1967), 171–75. On the thesis of the real personality of the state, see the Introduc-
tion, by George H. Sabine and Walter J. Shepard, to H. Krabbe, The Modern Idea of the
State (Martinus Nijhoff, 1922), xi–lxxxi.
On Bergbohm, see Lauri Mälksoo, “The Science of International Law and the Con-
cept of Politics: The Arguments and Lives of the International Law Professors at the
University of Dorpat/Iur’ev/Tartu 1855–1985,” 76 BYBIL 383–501 (2005), 419–37; and
B. Kastner, “Karl Magnus Bergbohm: Werk und Wirkung,” 84 Archiv für Rechts- und
Soziophilosophie 232– 49 (1998). Lasson is less well covered, but for a short account of
his ideas, see Rupert Emerson, State and Sovereignty in Modern Germany (Yale Uni-
For a lucid and succinct account of the German Rechtsstaat concept, see Leonard
Krieger, The German Idea of Freedom: History of a Political Tradition (University of
Chicago Press, 1957), 252– 61. On Jellinek and his autolimitation thesis, see Emerson,
State and Sovereignty, 60–73; Koskenniemi, Gentle Civilizer of Nations, 198–206; and
Bernstorff and Dunlap, Public International Law Theory, 26–38. On Franz Liszt, see
Florian Herrmann, Das Standardwerk: Franz von Liszt und das Völkerrecht (Nomos,
2001).
For an exposition of the positivist synthesis, see Sereni, Italian Conception, 206–50.
For an excellent, and more succinct, summation of it, see Lassa Oppenheim, “The Sci-
ence of International Law: Its Task and Method,” 2 AJIL 313–56 (1908). On the positivist
view of war and peace, see Stephen C. Neff, War and the Law of Nations: A General His-
tory (Cambridge University Press, 2005), 167–214. For a general account of the Caro-
line affair, including the legal disputes to which it gave rise, see Kenneth R. Stevens,
Border Diplomacy: The Caroline and McLeod Affairs in Anglo-American-Canadian
Relations, 1837–1842 (University of Alabama Press, 1989); Reginald C. Stuart, United
States Expansionism and British North America 1775–1871 (University of North Caro-
lina Press, 1988), 126– 47; and Martin A. Rogoff and Edward Collins Jr, “The Caroline
Incident and the Development of International Law,” 16 Brooklyn J. Int’l L. 493–527
(1990). For a broad critique of positivism, see generally H. Lauterpacht, Private Law
Sources and Analogies of International Law: With Special Reference to International
Arbitration (Longmans, Green, 1927).
7. Dissident Voices
Various writers continued in the dualistic tradition of Grotius, accepting both natural
law and positive law as valid components of international law. On the career of Andrés
Bello, see Iván Jaksic, Andrés Bello: Scholarship and Nation-Building in Nineteenth-
Century Latin America (Cambridge University Press, 2001). On his contribution to
international relations and international law, see Louise Fawcett, “Between West and
Non-West: Latin American Contributions to International Thought,” 34 Int’l Hist.
Rev. 679–704 (2012); and Frank Griffith Dawson, “The Influence of Andrés Bello on
Latin-American Perceptions of Non-Intervention and State Responsibility,” 57 BYBIL
253–315 (1986). Very little writing is available on Kaltenborn. But see Ludwik Ehrlich,
“The Development of International Law as a Science,” 105 RdC 173–265 (1962),” 246–
48; and Jochen von Bernstorff and Thomas Dunlap, The Public International Law
Theory of Hans Kelsen: Believing in Universal Law (Cambridge University Press, 2010),
18–21.
There is remarkably little writing about Bluntschli, considering how great his im-
pact was, outside the German-speaking world as well as within it. See, however, Betsy
Röben, Johann Caspar Bluntschli, Francis Lieber und das modern Völkerrecht 1861–
1881 (Nomos, 2003), which contains a biographical section on Bluntschli, 40–81. See
also Betsy Baker Röben, “The Method behind Bluntschli’s Modern International
Law,” 4 JHIL 249–92 (2002). For much briefer treatments in English, see Georg Caval-
lar, Imperfect Cosmopolis: Studies in the History of International Legal Theory and
Cosmopolitan Ideas (University of Wales Press, 2011), 117–21; and C. E. Merriam Jr.,
History of the Theory of Sovereignty since Rousseau (Columbia University Press, 1900),
99–103. On Lorimer, too, there is little writing. But see A. Pearce Higgins, “La contri-
bution de quatre grands juristes britaniques au droit international,” 40 RdC 1–85
(1932), 5–22; and A. H. Campbell, “James Lorimer: A Natural Lawyer of the Nine-
teenth Century,” 39 Grotius Soc. Trans. 211–29 (1953).
Regarding liberalism, Adam Smith’s contribution to international affairs is the sub-
ject of Andrew Wyatt Walter, “Adam Smith and the Liberal Tradition in International
Relations,” in Ian Clark and Iver B. Neumann (eds.), Classical Theories of International
Relations, 142–72 (Macmillan, 1996). On the relation of international law to liberal

political economy, see generally Stephen C. Neff, Friends but No Allies: Economic Lib-
eralism and the Law of Nations (Columbia University Press, 1990); and, more briefly,
Walter Schiffer, The Legal Community of Mankind: A Critical Analysis of the Modern
Concept of World Organization (Columbia University Press, 1954), 118–31. On Carlos
Tobar, see Richard V. Salisbury, “Carlos R. Tobar,” in Frank W. Thackeray and John E.
Findling (eds.), Statesmen Who Changed the World: A Bio-Bibliographical Dictionary
of Diplomacy, 545–53 (Greenwood Press, 1993). On the Tobar Doctrine, see Charles L.
Stansifer, “Application of the Tobar Doctrine to Central America,” 23 Americas 251–
72 (1967).
For a brief account of nationality theory generally, see John Breuilly, “On the
Principle of Nationality,” in Gareth Stedman Jones and Gregory Claeys (eds.), The
Cambridge History of Nineteenth-Century Political Thought, 77–109 (Cambridge Uni-
versity Press, 2011); Schiffer, Legal Community of Mankind, 131– 41; and Frank M.
Russell, Theories of International Relations (D. Appleton-Century, 1936), 204–32. On
Mazzini, see generally C. A. Bayly, and E. F. Biagini (eds.), Giuseppe Mazzini and the
Globalization of Democratic Nationalism, 1830–1920 (Oxford University Press, 2008);
and Martin Wight, Four Seminal Thinkers in International Theory: Machiavelli, Gro-
tius, Kant, and Mazzini (Oxford University Press, 2004), 89–119. On the nationality
school of international law, a fine account may be found in Angelo Piero Sereni, The
Italian Conception of International Law (Columbia University Press, 1943), 155–78.
On Mancini specifically, there is a sad dearth of writing. But see Sereni, Italian Con-
ception, 160– 66.
On solidarism, there is an excellent account of its genesis in the French political
context in Theodore Zeldin, France 1848–1945: Politics and Anger (Oxford University
Press, 1979), 276–318. On Saint-Simon, see Frank Manuel, The New World of Henri
Saint-Simon (Harvard University Press, 1956). For his ideas on international relations
in par ticu lar, see Georg C. Iggers, The Cult of Authority: The Political Philosophy of the
Saint-Simonians: A Chapter in the Intellectual History of Totalitarianism (Martinus
Nijhoff, 1958), 119–34. On his plan for European union, see Derek Heater, The Idea of
European Unity (Leicester University Press, 1992), 97–108. On Alberdi, there is all too
little writing. But see H. B. Jacobini, A Study of the Philosophy of International Law as
Seen in the Works of Latin American Writers (Martinus Nijhoff, 1954), 67–72. For an
account of the life and career of Lorenz von Stein, see the Introduction to Lorenz von
Stein, The History of the Social Movement in France, 1789–1950 (ed. and trans. by Kaethe
Mengelberg; Bedminster Press, 1964), 3–39.
Duguit is better covered than most lawyers in this area, although it should be borne
in mind that he was not an international lawyer. For fine short accounts of his ideas,
see Wolfgang Friedmann, Legal Theory (5th ed.; Stevens and Sons, 1967), 164–71; Ju-
lius Stone, Human Law and Human Justice (Stanford University Press, 1965), 159– 66;
and Hymen Ezra Cohen, Recent Theories of Sovereignty (University of Chicago Press,
1937), 38–56. For his relevance to international law, see Janne Elisabeth Nijman, The
Concept of International Legal Personality: An Inquiry into the History and Theory of
International Law (T. M. C. Asser Press, 2004), 208–16. Álvarez was the subject of
several articles in vol. 19 of the Leiden Journal of International Law, including Liliana
Obregón, “Noted for Dissent: The International Life of Alejandro Álvarez,” 19 Leiden
J. Int’l L. 983–1016 (2006). For Álvarez as a champion of the idea of a distinctively
American (i.e., Western Hemispheric) international law, see Carl Landauer, “A Latin
American in Paris: Alejandro Álvarez’s Le droit international américain,” 19 Leiden J.
Int’l L. 957–81 (2006); and Jorge L. Esquirol, “Alejandro Álvarez’s Latin American
Law: A Question of Identity,” 19 Leiden J. Int’l L. 931–56 (2006).
8. In Full Flower
On the globalization of international law in the nineteenth century, see Douglas M.
Johnston, The Historical Foundations of World Order: The Tower and the Arena (Mar-
tinus Nijhoff, 2008), 507– 687. See also Hedley Bull and Adam Watson (eds.), The Ex-
pansion of International Society (Clarendon Press, 1984); and Antonio Truyol y Serra,
“L’expansion de la société internationale aux XIXe et XXe siècles,” 116 RdC 89–179
(1965). Regarding the concept of civilized and uncivilized states, see Slim Laghmani,
Histoire du droit des gens du jus gentium au jus publicum europaeum (Pedone, 2004),
185–205; Gerritt W. Gong, The Standard of ‘Civilisation’ in International Society
(Clarendon Press, 1984); Antony Anghie, Imperialism, Sovereignty and the Making of
International Law (Cambridge University Press, 2007), 52– 65; and Liliana Obregón
Tarazona, “The Civilized and the Uncivilized,” in Bardo Fassbender and Anne Peters
(eds.), The Oxford Handbook of the History of International Law, 917–39 (Oxford Uni-
Legal aspects of nineteenth-century imperialism are remarkably understudied. For
the best available modern surveys, see Anghie, Imperialism, 65–97; and Johnston,
Historical Foundations, 549– 611. See also A. P. Thornton, Doctrines of Imperialism
(John Wiley and Sons, 1965). Brett Bowden, The Empire of Civilization: The Evolution
of an Imperial Idea (University of Chicago Press, 2009) gives some attention to inter-
national legal writing. For a classic work on the subject that is still very useful, see M.
F. Lindley, The Acquisition and Government of Backward Territory in International
Law: Being a Treatise on the Law and Practice Relating to Colonial Expansion (Long-
mans, Green, 1926). On imperialism in Africa, see Hedley Bull, “European States and
African Political Communities,” in Bull and Watson (eds.), Expansion of Interna-
tional Society, 99–114. On “quasi-sovereignty” generally, see Lauren Benton, A Search
for Sovereignty: Law and Geography in European Empires 1400–1900 (Cambridge Uni-
versity Press, 2010), 236–50. A source of much information is Edwin De Witt Dickin-
son, The Equality of States in International Law (Harvard University Press, 1920), who
discusses protected states (240– 47) and suzerainty (236– 40), with many examples
provided. On protectorates, see also James Crawford, The Creation of States in Inter-
national Law (2nd ed.; Clarendon Press, 2006), 286–320; and Anghie, Imperialism,
87–90. On spheres of influence, see John Westlake, International Law (vol. 1, 2nd ed.;
Cambridge University Press, 1910), 130–35; and Geddes W. Rutherford, “Spheres of
Influence: An Aspect of Semi-Sovereignty,” 20 AJIL 300–25 (1926).
On China’s entry into contact with the Western powers in the nineteenth century,
the leading work is Rune Svarverud, International Law as World Order in Late Impe-
rial China: Translation, Reception and Discourse, 1847–1911 (Brill, 2007). See also
Immanuel C. Y. Hsü, China’s Entrance into the Family of Nations: The Diplomatic
Phase 1858–1880 (Harvard University Press, 1960); Johnston, Historical Foundations,
578–90; Yongjin Zhang, “China’s Entry into International Society: Beyond the Stan-
dard of ‘Civilisation,’ ” 17 Rev. Int’l Stud. 3–16 (1991); Laghmani, Histoire du droit des
gens, 209–15; and Gerrit W. Gong, “China’s Entry into International Society,” in Bull
and Watson (eds), Expansion of International Society, 171–83. On its reception of in-
ternational law in par ticu lar, see Shin Kawashima, “China,” in Fassbender and Peters
(eds.), Oxford Handbook, 451–74; and Wang Tieya, “International Law in China: His-
torical and Contemporary Perspectives,” 221 RdC 195–309 (1990), 226–37. On the
persistence of the Chinese tribute system into the nineteenth century, see Mark Man-
call, “The Ch’ing Tribute System: An Interpretive Essay,” in John King Fairbank (ed.),
The Chinese World Order: Traditional China’s Foreign Relations, 63–89 (Harvard Uni-
The Japa nese reception of international law is somewhat better covered than its
Chinese counterpart. See Kinji Akashi, “Japa nese ‘Acceptance’ of the European Law
of Nations: A Brief History of International Law in Japan c. 1853–1900,” in Michael
Stolleis and Masaharu Yanagihara (eds.), East Asian and European Perspectives on
International Law, 1–21 (Nomos, 2004); Hidemi Suganami, “Japan’s Entry into Inter-
national Society,” in Bull and Watson (eds.), Expansion of International Society, 185–
99; Gong, Standard of ‘Civilisation,’ 164–200; and John Peter Stern, The Japanese In-
terpretation of the ‘Law of Nations,’ 1854–1874 (Princeton University Press, 1979). On
Nishi Amane in par ticu lar, see Thomas R. H. Havens, Nishi Amane and Modern Japa-
nese Thought (Princeton University Press, 1970); and Roger F. Hackett, “Nishi
Amane—A Tokugawa-Meiji Bureaucrat,” 18 J. Asian Stud. 213–25 (1959).
Extraterritoriality is a largely forgotten and little studied subject. On the Chinese
experience, see William L. Tung, China and the Foreign Powers: The Impact of and
Reaction to Unequal Treaties (Oceana, 1970); and Westel W. Willoughby, Foreign
Rights and Interests in China (2nd ed.; Johns Hopkins University Press, 1927). On ex-
traterritoriality in Japan, see F. C. Jones, Extraterritoriality in Japan and the Diplo-
matic Relations Resulting in Its Abolition (Yale University Press, 1931); and Richard T.
Chang, The Justice of Western Consular Courts in Nineteenth-Century Japan (Green-
wood Press, 1984). On British consular courts in the Ottoman Empire, see Johannes
Berchtold, Reich un Gerechtigkeit in der Konsulargerichtsbarkeit: Britische Extraterri-
torialität im Osmanischen Reich 1825–1914 (R. Oldenbourg, 2009).
On international law in Latin America, there is a crying need for fuller study. For a
good start, see H. B. Jacobini, A Study of the Philosophy of International Law as Seen in
the Works of Latin American Writers (Martinus Nijhoff, 1954). Included in this work
is the debate over a distinctive American international law, 121–36.
Another greatly neglected topic is the professionalization of international law in the
nineteenth century. On the founding of the Institute of International Law, see Romain
Yakemtchouk, “Les origins de l’Institut de Droit International,” 77 RGDIP 373– 423
(1973). On the history of the American Society of International Law, see Frederic Kir-
gis, The American Society of International Law’s First Century 1906–2006 (Martinus
Nijhoff, 2006). Yet another understudied subject is the history of international-law
teaching. For a beginning, see Manfred Lachs, The Teacher in International Law
(Teachings and Teaching) (Martinus Nijhoff, 1982). For a welcome study of the topic in
one country, see R. St. J. Macdonald, “An Historical Introduction to the Teaching of
International Law in Canada,” 12 Canadian Y.B. Int’l L. 67–110 (1974).
On the two dominant figures in international law in the late nineteenth and early
twentieth centuries, Renault has received by far the greater attention, although not
recently. See Paul Fauchille, “Louis Renault (1843–1918): Sa vie—son oeuvre,” 25
(supp.) RGDIP 1–147 (1918). On Martens, see V. V. Pustovarov, V. V., Our Martens: F.
F. Martens, International Lawyer and Architect of Peace (trans. by W. E. Butler; Sim-
monds and Hill, 2000).
On the career of a prominent Austrian international lawyer of the period, see Erich
Kussbach, “Heinrich Lammasch, Scholar of Public International Law and Austrian
Statesman,” 1(2) Miskole J. Int’l L. 63–77 (2004). Francis Lieber has also attracted
some attention. See, for example, Frank Freidel, Francis Lieber, Nineteenth Century
Liberal (Louisiana State University Press, 1947); and Ernest Nys, “Francis Lieber—His
Life and Work,” 5 AJIL 84–117, 355–93 (1911). For a more recent account, see Betsy
Röben, Johann Caspar Bluntschli, Francis Lieber und das modern Völkerrecht 1861–
1881 (Nomos, 2003), 15– 40. A great deal of information about Lieber may also be
found in John Fabian Witt, Lincoln’s Code: The Laws of War in American History (Ba-
sic, 2012), particularly 173–96, 226– 49, and 317–21. For a biography of Halleck, see
John F. Marszalek, Commander of All Lincoln’s Armies: A Life of General Henry W.
Halleck (Harvard University Press, 2004), although it makes only passing reference to
Halleck’s activity in international law . On Francis Wharton, see Mark W. Janis, The
American Tradition of International Law: Great Expectations 1789–1914 (Oxford Uni-
On humanitarian achievements of international law in the nineteenth century,
there is a growing literature. For a general history of the International Committee of
the Red Cross, see Caroline Moorehead, Dunant’s Dream: War, Switzerland and the
History of the Red Cross (HarperCollins, 1998).
For an impressively thorough survey of the development of international organiza-
tions in the nineteenth century, see F. S. L. Lyons, Internationalism in Europe 1815–
1914 (A. W. Sijthoff, 1963). On the contribution of Paul Reinsch, see Jan Klabbers,
“Re-Thinking Functionalism: Paul S. Reinsch and the Making of International Insti-
tutional Law” (Straus Institute Working Paper No 02/10, 2010).
Arbitration is still another aspect of nineteenth-century international law that is not

adequately treated in secondary literature, despite a wealth of material. On the Geneva
arbitration of 1872 between the United States and Britain, a fine study is Adrian Cook,
The Alabama Claims: American Politics and Anglo-American Relations, 1865–1872 (Cor-
nell University Press, 1975). On commissions of inquiry, see Nissim Bar-Yaacov, The
Handling of International Disputes by Means of Inquiry (Oxford University Press, 1974).
On the two Hague Peace Conferences, there is a fairly substantial literature. For an
excellent and lively account, though not focusing closely on legal questions, see Bar-
bara W. Tuchman, The Proud Tower: A Portrait of the World before the War 1890–1914
(Macmillan, 1966), 265–338. On the first conference, see Dan L. Morrill, “Nicholas II
and the Call for the First Hague Conference,” 43 J. Mod. Hist. 296–313 (1974); and
Arthur Eyffinger, The 1899 Hague Peace Conference: ‘The Parliament of Man, the Fed-
eration of the World’ (Kluwer Law International, 1999). On the role of the United
States at the first conference, see Calvin DeArmond Davis, The United States and the
First Hague Peace Conference (Cornell University Press, 1962); and, at the second,
Calvin DeArmond Davis, The United States and the Second Hague Peace Conference
(Duke University Press, 1976).
On humanitarian intervention in the nineteenth century, see Gary J. Bass, Free-
dom’s Battle: The Origin of Humanitarian Intervention (Alfred A. Knopf, 2008), which
covers three major crises in detail—the Greek independence war in the 1820s, com-
munal strife in Syria in the 1860s, and the Bulgarian atrocities of the 1870s. Covering
a great many more situations, from the seventeenth to the twentieth centuries, is
Brendan Simms and D. J. B. Trim (eds.), Humanitarian Intervention: A History (Cam-
bridge University Press, 2011). On the Syrian affair, see also Stephen Kloepfer, “The
Syrian Crisis 1860– 61: A Case Study in Classic Humanitarian Intervention,” 23 Cana-
dian Y.B. Int’l L. 246–59 (1985).
Several par ticu lar disputes of the nineteenth century have attracted some careful
attention. On the Don Pacifico affair of 1850 (between Britain and Greece), see Jasper
Ridley, Lord Palmerston (Constable, 1970), 374–76, 379–89. On the Russian denuncia-
tion of the Treaty of Paris arrangements on the Black Sea in 1870–71, see David J. Be-
derman, “The 1871 London Declaration, Rebus sic Stantibus and a Primitivist View of
the Law of Nations,” 82 AJIL 1– 40 (1988). On the blockade of Venezuela in 1902–3,
there is an excellent short account in Dana G. Munro, Intervention and Dollar Diplo-
macy in the Caribbean 1900–1921 (Princeton University Press, 1964), 66–77. See also
Andrew Graham-Yooll, Imperial Skirmishes: War and Gunboat Diplomacy in Latin
America (Signal, 2002), 145–57; and Miriam Hood, Gunboat Diplomacy: Great Power
Pressure in Venezuela, 1795–1905 (2nd ed.; Allen and Unwin, 1983). On Luis Maria
Drago, see Verena Botzenhart-Viehe, “Luis María Drago,” in Frank W. Thackeray and
John E. Findling (eds.), Statesmen Who Changed the World: A Bio-Bibliographical
Dictionary of Diplomacy, 175–83 (Greenwood Press, 1993).
On Marxist perspectives on international law and international relations in the
nineteenth century, see David Boucher, Political Theories of International Relations:
From Thucydides to the Present (Oxford University Press, 1998), 354–74. On the Calvo
Clause, see Donald Richard Shea, The Calvo Clause: A Problem of Inter-American and
International Diplomacy (University of Minnesota Press, 1955). On the Drago Doc-
trine, see Arthur P. Whitaker, The Western Hemisphere Idea: Its Rise and Decline
(Cornell University Press, 1954), 86–107.
9. Dreams Born and Shattered

For an impressively general survey of international law in the twentieth century, see
Carlo Focarelli, “International Law in the 20th Century,” in Alexander Orakhelashvili
(ed.), Research Handbook on the Theory and History of International Law, 478–525
(Edward Elgar, 2011). On the interwar period specifically, see Peter Krüger, “From the
Paris Peace Treaties to the End of the Second World War,” in Bardo Fassbender and
Anne Peters (eds.), The Oxford Handbook of the History of International Law, 679–98
(Oxford University Press, 2012). For a general history of international affairs in the
interwar period, G. M. Gathorne-Hardy, A Short History of International Affairs 1920
to 1939 (3rd ed.; Oxford University Press, 1942) continues to be extremely useful.
The literature on legal issues that arose in the First World War is immense. A lead-
ing work is James Wilford Garner, International Law and the World War (2 vols.;
Longmans, 1920), concentrating on issues of importance to the United States. There is
a strange lack of precise information, though, on the activities of many international
lawyers. For an exception in the case of Oppenheim, see Mathias Schmoeckel, “Con-
sent and Caution: Lassa Oppenheim and His Reaction to World War I,” in Randall
Lesaffer (ed.), Peace Treaties and International Law in European History: From the
Late Middle Ages to World War One, 270–88 (Cambridge University Press, 2004). On
neutrality issues, see Edgar E. Turlington, Neutrality: Its History, Economics and Law:
The World War Period (Columbia University Press, 1936); Alice N. Morrissey, The
American Defense of Neutral Rights 1914–1917 (Harvard University Press, 1939); Er-
nest R. May, The United States and American Isolation 1914–1917 (Harvard University
Press, 1959); John W. Coogan, The End of Neutrality: The United States, Britain, and
Maritime Rights 1899–1915 (Cornell University Press, 1981). For a briefer survey of
neutrality issues, see Stephen C. Neff, The Rights and Duties of Neutrals: A General
History (Manchester University Press, 2000), 145– 65. On an abortive attempt by the
United States and Britain to resolve contentious issues after the war, see B. J. C. McK-
ercher, “A British View of American Foreign Policy: The Settlement of Blockade
Claims, 1924–1927,” 3 Int’l Hist. Rev. 358–84 (1981).
On the legal issues that faced the Paris Peace Conference of 1919, see Robert Lan-
sing, “Some Legal Questions of the Peace Conference,” 13 AJIL 631–50 (1919). On
dealing with war crimes, see James F. Willis, Prologue to Nuremberg: The Politics and
Diplomacy of Punishing War Criminals of the First World War (Greenwood Press,
1982). On the Leipzig war crimes trials in par ticu lar, see Harald Wiggenhorn, Verlier-
erjustiz: Die Leipziger Kriegsverbrecherprozesse nach dem Ersten Weltkrieg (Nomos
2005); Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes
Tribunals (Princeton University Press, 2000), 58–105; and, more briefly, Willis, Pro-
logue to Nuremberg, 126– 42, 146– 47. On the Constantinople trial concerning the Ar-
menian atrocities, see Bass, Stay the Hand, 106– 46.
On the draft ing the League of Nations Covenant, the leading work continues to be
David Hunter Miller, The Drafting of the Covenant (2 vols.; G. P. Putnam’s Sons, 1928).
For briefer accounts, see F. P. Walters, A History of the League of Nations (Oxford Uni-
versity Press, 1952), 25–38; Margaret MacMillan, Peacemakers: The Paris Conference
of 1919 and Its Attempt to End War (John Murray, 2001), 92–106; Lloyd E. Ambrosius,
Woodrow Wilson and the American Diplomatic Tradition: The Treaty Fight in Perspec-
tive (Cambridge University Press, 1987), 51–79; and Alfred Zimmern, The League of
Nations and the Rule of Law 1918–1935 (Macmillan, 1936), 236– 63. On the par ticu lar
issue of a racial equality provision in the covenant, see Macmillan, Peacemakers, 315–
30; Robert A. Klein, Sovereign Equality among States: The History of an Idea (Univer-
sity of Toronto Press, 1974), 76–83; and Paul Gordon Lauren, “Human Rights in His-
tory: Diplomacy and Racial Equality at the Paris Peace Conference,” 2 Diplomatic
History 257–78 (1978).
The leading history of the League of Nations is still Walters, History of the League,
which, although not written from a legal perspective, contains much information
about legal disputes. See also F. S. Northedge, The League of Nations: Its Life and Times
1920–1946 (Leicester University Press, 1986). On the league mandate system, Quincy
Wright, Mandates under the League of Nations (University of Chicago Press, 1930)
continues to be useful. For a more recent perspective, see Antony Anghie, Imperialism,
Sovereignty and the Making of International Law (Cambridge University Press, 2007),
115–95. On the famous (if unsuccessful) program for protecting minority rights in Up-
per Silesia, see Georges Kaeckenbeeck, The International Experiment of Upper Silesia:
A Study in the Working of the Upper Silesian Settlement, 1922–1937 (Oxford University
Press, 1942). In addition, and more generally, see Jennifer Jackson Preece, “Minority
Rights in Europe: From Westphalia to Helsinki,” 23 Rev. Int’l Stud. 75–92 (1997). On
the legal issues posed by the requirement of registration of treaties, see Manley O. Hud-
son, “The Registration and Publication of Treaties,” 19 AJIL 273–92 (1925).
On the Pact of Paris, see James T. Shotwell, War as an Instrument of National Policy
and Its Renunciation in the Pact of Paris (Constable, 1929); and Robert H. Ferrell,
Peace in Their Time: The Origins of the Kellogg-Briand Pact (Yale University Press,
1952). For a more recent consideration, see Bernhard Roscher, Der Briand-Kellogg-
Pakt von 1928: Der ‘Verzicht auf den Krieg als Mittel nationaler Politik’ im völkerrech-
tlichen Denken der Zwischenkriegszeit (Nomos 2004).
On the World Court (or Permanent Court of International Justice), the leading
work is Manley O. Hudson, The Permanent Court of International Justice, 1920–1942:
A Treatise (Macmillan, 1943), although lay readers might fi nd it to be somewhat
daunting. Another very thorough study of the Court is Ole Spiermann, International
Legal Argument in the Permanent Court of International Justice: The Rise of the Inter-
national Judiciary (Cambridge University Press, 2005), although this, too, is probably
too dense for a lay readership. For a thorough account of the drafting of the Court’s
statute, see Ole Spiermann, “ ‘Who Attempts Too Much Does Nothing Well’: The 1920
Advisory Committee of Jurists and the Statute of the Permanent Court of Interna-
tional Justice,” 73 BYBIL 187–260 (2002). On the various occasions on which the
United States considered becoming a party to the Court, see Michael Dunne, The
United States and the World Court, 1920–1935 (Pinter, 1988). On Anzilotti’s activity as
a judge on the Court, see José Maria Ruda, “The Opinions of Judge Dionisio Anzilotti
at the Permanent Court of International Justice,” 3 EJIL 100–22 (1992). On Walther
Schücking’s tenure on the bench, see Ole Spiermann, “Professor Walther Schücking at
the Permanent Court of International Justice,” 22 EJIL 783–99 (2011). For a thorough
account of the experience of the mixed-claims commissions to which Mexico was a
party, see A. H. Feller, The Mexican Claims Commissions 1923–1934: A Study in the
Law and Procedure of International Tribunals (Macmillan, 1935).
For a general history of the Hague Academy of International Law, see S. Verosta,
“L’histoire de l’Académie de droit international de la Haye, établie avec le concours de
la Donation Carnegie pour la paix international”; and R. Y. Jennings, “Fift y Years of
Hague Academy Lectures on Public International Law,” both found in René-Jean Du-
puy (ed.), Academy of International Law, Jubilee Book 1923–1973, 7–56 and 99–115,
respectively (A. W. Sijthoff, 1973). On the Hague Conference on the Codification of
International Law of 1930, see R. P. Dhokalia, The Codification of Public International
Law (Manchester University Press, 1970), 116–33. On the Harvard Research project,
see John P. Grant and J. Craig Barker (eds.), The Harvard Research in International
Law: Contemporary Analysis and Appraisal (William S. Hein, 2007).
There is information (spotty as usual) on various individual international lawyers
active in this period. On Karl Strupp, see Sandra Link, Ein Realist mit Idealen—Der
Völkerrechtler Karl Strupp (1886–1940) (Nomos, 2003). On Hans Wehberg, see Clau-
dia Denfeld, Hans Wehberg (1885–1962): Die Organisation der Staatengemeinschaft
(Nomos, 2008). Lauterpacht has received more attention than most. See Elihu Lauter-
pacht, The Life of Sir Hersch Lauterpacht, QC, FBA, LLD (Cambridge University Press,
2010); Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of Inter-
national Law 1870–1960 (Cambridge University Press, 2001), 353– 412; Marti Kosken-
niemi, “Hersch Lauterpacht (1897–1960),” in Jack Beatson and Reinhard Zimmer-
mann (eds.), Jurists Uprooted: German-Speaking Émigré Lawyers in Twentieth-Century
Britain (Oxford University Press, 2004), 601– 61; Janne Elisabeth Nijman, The Concept
of International Legal Personality: An Inquiry into the History and Theory of Interna-
tional Law (T. M. C. Asser Press, 2004), 297–304. On Álvarez, see Liliana Obregón,
“Noted for Dissent: The International Life of Alejandro Álvarez,” 19 Leiden J. Int’l L.
983–1016 (2006). For an excellent short account of the contribution and significance
of Pitman B. Potter, a neglected figure, see Brian C. Schmidt, The Political Discourse of
Anarchy: A Disciplinary History of International Relations (State University of New
York Press, 1998) 201–9.
Kaufmann has also received some attention. For an excellent short career biography
of him, see Stephen Cloyd, “Erich Kaufmann,” in Arthur J. Jacobson and Bernhard
Schlink (eds), Weimar: A Jurisprudence of Crisis, 189–94 (University of California
Press, 2000). See also Koskenniemi, Gentle Civilizer of Nations, 249– 61. For the most
thorough study, see Frank Degenhardt, Zwischen Machtstaat und Völkerbund: Erich
Kaufmann (1880–1972) (Nomos, 2008). On James Brown Scott’s commitment to pre-
Grotian natural-law approaches to international law, see Christopher L. Rossi, Broken
Chain of Being: James Brown Scott and the Origins of Modern International Law (The
Hague: Kluwer International, 1998). On James Brierly, see Carl Landauer, “J. L. Brierly
and the Modernization of International Law,” 25 Vanderbilt Journal of Transnational
Law 881–918 (1993), which presents him as a modernist and critic of positivism. See
also Hersch Lauterpacht, “Brierly’s Contribution to International Law,” 32 BYBIL 1–19
(1955–56); and Nijman, Concept, 131–49. On the Spanish scholar and World Court
judge Rafael Altamira, see Yolanda Gamarra, “Rafael Altamira y Crevea (1866–1951):
The International Judge as ‘Gentle Civilizer,’ ” 14 JHIL 1–49 (2012). On Wellington
Koo, see Jonathan Clements, Wellington Koo: China (Haus, 2008).
Walther Schücking has received some recent attention, after long neglect. He was
the subject of several articles in vol. 22 of the EJIL, including Frank Bodendiek, “Wal-
ther Schücking and the Idea of ‘International Orga nization’,” 22 EJIL 741–54 (2011);
Christian J. Tams, “Re-Introducing Walther Schücking,” 22 EJIL 725–39 (2011); Jost
Delbrück, “Law’s Frontier—Walther Schücking and the Quest for the Lex Ferenda,” 22
EJIL 801–8 (2011); and Mónica García-Salmones, “Walther Schücking and the Pacifist
Traditions of International Law,” 22 EJIL 755–82 (2011).
As noted, there is little attention to national traditions. See, however, Emmanuelle
Jouannet, “A Century of French International Law Scholarship,” 61 Maine Law Re-
view 84–131 (2009); and James Crawford, “Public International Law in Twentieth-
Century England,” in Beatson and Zimmermann (eds.), Jurists Uprooted, 681–707.
The Vienna School is in a class of its own regarding the amount of attention that has
been lavished on it (probably well in excess of its actual influence). The best work on
the subject is now Jochen von Bernstorff and Thomas Dunlap, The Public Interna-
tional Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge University
Press, 2010). Still very useful is Josef Kunz, “The ‘Vienna School’ and International
Law,” 11 NYULQR 370– 421 (1934), with international law matters treated at 392– 421.
For fine short accounts, see Wolfgang Friedmann, Legal Theory (5th ed.; Stevens and
Sons, 1967), 105–17; Gustavo Gozzi, Diritti e civilità: Storia e filosofia del diritto inter-
nazionale (Il Mulino, 2010), 167–92; and Michael Stolleis, A History of Public Law in
Germany 1914–1945 (trans. by Thomas Dunlap; Oxford University Press, 2004), 151–
60. On the formative period, see Clemens Jabloner, “Kelsen and His Circle: The Vien-
nese Years,” 9 EJIL 368–85 (1998). See also George A. Lipsky (ed.), Law and Politics in
the World Community: Essays on Hans Kelsen’s Pure Theory and Related Problems in
International Law (University of California Press, 1953). For support of the Vienna
School approach from the English-speaking world, see Harold J. Laski, Studies in Law
and Politics (George Allen and Unwin, 1932), 262– 69. On the life and career of Kelsen
in par ticu lar, see Rudolf Aládar Métall, Hans Kelsen: Leben und Werk (F. Deutike,
1969), although this work is thought to be unsatisfactory by many of Kelsen’s follow-
ers. See also Jörg Kammerhofer, “Hans Kelsen’s Place in International Legal Theory,”
in Orakhelashvili (ed.), Research Handbook, 143– 67; Peter Langford and Ian Bryan,
“Hans Kelsen’s Theory of Legal Monism: A Critical Engagement with the Emerging
Legal Order of the 1920s,” 14 JHIL 51–86 (2012); and Nijman, Concept, 149–92.
Georges Scelle is another lawyer who has received significant attention. For excel-
lent overviews of his thought, see Walter Schiffer, The Legal Community of Mankind:
A Critical Analysis of the Modern Concept of World Organization (Columbia Univer-
sity Press, 1954), 258–77; and Nijman, Concept, 216–25. For a more thorough exposi-
tion, see Anja Wüst, Das völkerrechtliche Werk von Georges Scelle im Frankreich der
Zwischenkriegszeit (Nomos 2007). Volume 1 of the European Journal of International
Law contained a number of articles on Scelle, including H. Thierry, “The Thought of
Georges Scelle,” 1 EJIL 193–209 (1990); and Antonio Cassese, “Remarks on Scelle’s
Theory of ‘Role Splitting’ (dédoublement fonctionnel) in International Law,” 1 EJIL
210–31 (1990). See also Charles Rousseau, “Georges Scelle (1878–1961),” 65 RGDIP 5–
19 (1961); and N. Kasirer, “A Reading of Georges Scelle’s Précis de droit des gens,” 24
Canadian Y.B. Int’l L. 372–385 (1986).
On socialist views of international law, there is a fairly considerable literature. See
T. A. Taracouzio, The Soviet Union and International Law: A Study Based on the Legis-
lation, Treaties and Foreign Relations of the Union of Soviet Socialist Republics (Mac-
millan, 1935); T. A. Taracouzio, “The Effect of Applied Communism on the Principles
of International Law,” 28 ASIL Procs. 105–20 (1934); Ivo Lapenna, Les conceptions so-
viétiques de droit international public (A. Pedone, 1954); John N. Hazard, “Cleansing
Soviet International Law of Anti-Marxist Theories,” 32 AJIL 244–52 (1938); John Haz-
ard, “The Soviet Union and International Law,” 1 Soviet Studies 189–99 (1950); Zofia
Maclure, “Soviet International Legal Theory—Past and Present,” 5 Fletcher Forum
49–73 (1981); and Kazimierz Grzybowski, Soviet Public International Law: Doctrines
and Diplomatic Practice (A. W. Sijthoff, 1970). For especially critical accounts, see Hans
Kelsen, The Communist Theory of Law (Stevens and Sons (1955), 148–92; and Jean Yves
Calvez, Droit international et souverainete en U.R.S.S.: L’evolution de l’ideologie ju-
ridique sovietique depuis la Revolution d’Octobre (A. Colin, 1953). On war and neutral-
ity, see P. H. Vigor, The Soviet View of War, Peace and Neutrality (Routledge and Kegan
Paul, 1975); and D. Fedotoff White, “Soviet Philosophy of War,” 51 Pol. Sci. Q. 321–53
(1936). On treaties, see J. F. Triska and R. M. Slusser, The Theory, Law and Policy of So-
viet Treaties (Stanford University Press, 1962); and Robert W. Slusser, and Jan F. Triska,
“Treaties and Other Sources of Order in International Relations: The Soviet View,” 52
AJIL 699–726 (1958). On international organizations, see Charles Prince, “The U.S.S.R.
and International Organizations,” 36 AJIL 425–45 (1941).
On Korovin, see Kelsen, Communist Theory, 156–76; Mintauts Chakste, “Soviet Con-
cepts of the State, International Law, and Sovereignty,” 43 AJIL 21–36 (1949), 23–30;
Maclure, “Soviet International Legal Theory,” 49–54; and Lapenna, Conceptions sovié-
tiques, 69–73. On Pashukanis, see Kelsen, Communist Theory, 152–56; Lapenna, Con-
ceptions soviétiques, 74–78, 94–103; and William E. Butler, “Soviet International Legal
Education: The Pashukanis Syllabus,” 2 Review of Socialist Law 79–102 (1976), 79–85.
On Nazism and international law, see Peter K Steck, Zwischen Volk und Staat: Das
Völkerrechtssubjekt in der deutschen Völkerrechtslehre (1933–1941) (Nomos 2003);
Michael Stolleis, “International Law under German National Socialism: Some Contri-
butions to the History of Jurisprudence 1933–1945,” in Michael Stolleis and Masaharu
Yanagihara (eds.), East Asian and European Perspectives on International Law, 203–13
(Nomos, 2004); Detlev F Vagts, “International Law in the Th ird Reich,” 84 AJIL 661–
704 (1990); Dan Diner, Beyond the Conceivable: Studies on Germany, Nazism, and the
Holocaust (University of California Press, 2000), 49–77; Peter M. R. Stirk, “John H.
Herz and the International Law of the Third Reich,” 22 Int’l Rel. 427– 40 (2008);
Jacques Fournier, La conception nationale-socialiste du droit des gens (A. Pedone,
1939); John H Herz, “The National Socialist Doctrine of International Law and the
Problems of International Orga nization,” 54 Pol. Sci. Q. 536–54 (1939); Virginia L.
Gott, “The National Socialist Theory of International Law,” 32 AJIL 704–18 (1938);
and Lawrence Preuss, “National Socialist Conceptions of International Law,” 29 Am.
Pol. Sci. Rev. 594– 609 (1935). On fascist ideas, both in Italy and Germany, about enti-
tlement to territorial expansion, see Aristotle A. Kallis, Fascist Ideology: Territory and
Expansionism in Italy and Germany, 1922–1945 (Routledge, 2000).
On Helmut Nicolai, see Martyn Housden, Helmut Nicolai and Nazi Ideology (Mac-
millan, 1992). On Walz, see Christoph Schmelz, Der Völkerrechtler Gustav Adolf
Walz: Eine Wissenschaftskarriere im ‘Dritten Reich’ (Logos, 2011). The Nazi legal theo-
rist who has been accorded by far most attention from later scholars is Carl Schmitt.
See, for example, Gopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl
Schmitt (Verso, 2000), especially 226– 45, where Schmitt’s positions on international
issues are discussed. See also Joseph W. Bendersky, Carl Schmitt: Theorist for the Reich
(Princeton University Press, 1983), which covers Schmitt’s life and career up to 1947.
On the persecution of international lawyers in Germany by the Nazi government, see
James Wilford Garner, “The Nazi Proscription of German Professors of International
Law,” 33 AJIL 112–19 (1939).
Italian fascism produced much less in the way of international law thinking than
did Nazi Germany, so that secondary source material is correspondingly thin. On
Ugo Spirito, however, see A. James Gregor, Mussolini’s Intellectuals: Fascist Social and
Political Thought (Princeton University Press, 2005), 90–98.
On international legal aspects of the Spanish Civil War, see Norman Padelford, In-
ternational Law and Diplomacy in the Spanish Civil Strife (Macmillan, 1939); and
William E. Watters, An International Affair: Non-Intervention in the Spanish Civil
War, 1936–1939 (Exposition Press, 1970).
On surveys of realist thinking in international relations, see James E. Dougherty
and Robert L. Pfaltzgraff Jr., Contending Theories of International Relations: A
Comprehensive Survey (3rd ed.; Harper and Row, 1990), 81–135; Jonathan Haslam,
No Virtue Like Necessity: Realist Thought in International Relations since Machia-
velli (Yale University Press, 2002); and Michael Joseph Smith, Realist Thought from
Weber to Kissinger (Louisiana State University Press, 1986). There are also writings
on various par tic u lar figures in this school who were prominent in the interwar
period. On Frederick Sherwood Dunn, see William T. R. Fox, “Frederick Sherwood
Dunn and the American Study of International Relations,” 15 World Politics 1–19
(1962). On E. H. Carr, see Charles Jones, E. H. Carr and International Relations: A
Duty to Lie (Cambridge University Press, 1998). On Hans Morgenthau, see Ko-
skenniemi, Gentle Civilizer of Nations, 436– 65; Smith, Realist Thought, 134– 64;
Michael Williams (ed.), Realism Reconsidered: Th e Legacy of Hans Morgenthau in
International Relations (Oxford University Press, 2007); and Oliver Jutersonke,
“Hans J. Morgenthau on the Limits of Justiciability in International Law,” 8 JHIL
181–211 (2006).
For a vigorous and stylish presentation of the case against basing international law
on sanctions and coercion, see Gerhardt Niemeyer, Law Without Force: The Function
of Politics in International Law (Princeton University Press, 1941).
10. Building Anew

There is remarkably little writing on legal issues of the Second World War, in contrast
with the First. There is, however, much information on occupation of territory and
related matters in Mark Mazower, Hitler’s Empire: How the Nazis Ruled Europe (Pen-
guin, 2008). Events immediately afterward, however, have attracted much interest.
There are many accounts of the Nuremberg Trials. From the legal standpoint, the best
are Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (Little,
Brown, 1992); and Kevin Jon Heller, The Nuremberg Military Tribunals and the Ori-
gins of International Criminal Law (Oxford University Press, 2011). See also Bradley F.
Smith, Reaching Judgment at Nuremberg (André Deutsch, 1977); Joseph H. Persico,
Nuremberg: Infamy on Trial (Penguin, 1994); John Tusa and Ann Tusa, The Nurem-
berg Trial (Macmillan, 1983); and Gary Jonathan Bass, Stay the Hand of Vengeance:
The Politics of War Crimes Tribunals (Princeton University Press, 2000), 147–205. On
the High Command Trial, which took place after the main Nuremberg proceedings
and dealt with military leaders, see Valerie Genviève Hébert, Hitler’s Generals on
Trial: The Last War Crimes Tribunal at Nuremberg (University Press of Kansas, 2010).
For a searching legal case against the tribunal’s ruling, see Leo Gross, “The Criminal-
ity of Aggressive War,” 41 Am. Pol. Sci. Rev. 205–25 (1947).
On the analogous Far Eastern trials, the leading work is Robert Cryer and Neil
Boister, The Tokyo International Military Tribunal (Oxford University Press, 2008).
See also Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in
the East, 1945–1951 (University of Texas Press, 1979), 9–33; and Arnold C. Brackman,
The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials (Collins,
1989). For a very critical assessment of the proceedings, see John W. Dower, Embrac-
ing Defeat: Japan in the Wake of World War II (W. W. Norton, 1999), 443–74.
On the founding of the United Nations, see Ruth B. Russell, A History of the United
Nations Charter: The Role of the United States, 1940–1945 (Brookings Institution,
1958); Townsend Hoopes and Douglas Brinkley, FDR and the Creation of the U.N.
(Yale University Press, 1997); Robert C. Hilderbrand, Dumbarton Oaks: The Origins of
the United Nations and the Search for Postwar Security (University of North Carolina
Press, 1990); Stephen C. Schlesinger, Act of Creation: The Founding of the United Na-
tions (Westview Press, 2003); Mark Mazower, No Enchanted Palace: The End of Empire
and the Ideological Origins of the United Nations (Columbia University Press, 2009);
Robert A. Klein, Sovereign Equality among States: The History of an Idea (University
of Toronto Press, 1974), 109–34; and Evan Luard, A History of the United Nations: The
Years of Western Domination, 1945–1955, vol. 1 (Macmillan, 1982), 17– 68. On the
role and history of the UN Security Council, see David L. Bosco, Five to Rule Them All:
The UN Security Council and the Making of the Modern World (Oxford University
Press, 2009).
Remarkably, there is not a thorough general history of international human rights
law or of the UN experience in promoting and protecting human rights. The forma-
tive period, though, has received attention. See Johannes Morsink, The Universal
Declaration of Human Rights: Origins, Drafting, and Intent (University of Pennsylva-
nia Press, 1999); Mary Ann Glendon, “John P. Humphrey and the Draft ing of the
Universal Declaration of Human Rights,” 2 JHIL 250– 60 (2000); and Mary Ann Glen-
don, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human
Rights (Random House, 2001). On the life and career of René Cassin, see Antoine
Prost and Jay Murray Winter, René Cassin et les droits de l’homme: Le projet d’un gé-
nération (Fayard, 2011). On the draft ing of the four Geneva Conventions of 1949, see
Geoff rey Best, War and Law since 1945 (Clarendon Press, 1994), 80–114.
Legal aspects of the Cold War have been greatly neglected, with modest exceptions.
On the Korean conflict, see Luard, History, vol. 1, 239–74. For a thorough account of
the UN membership crisis of the 1950s, see Leo Gross, “Progress towards Universality
of Membership in the United Nations,” 50 AJIL 791–827 (1956). On the Cuban Missile
Crisis, see Abram Chayes, The Cuban Missile Crisis (Oxford University Press, 1974);
and Louis Henkin, How Nations Behave: Law and Foreign Policy (2nd ed.; Columbia
University Press, 1979), 279–302. On the Congo crisis in the 1960s, see Georges Abi-
Saab, The United Nations Operation in the Congo 1960–1964 (Oxford University Press,
1978). On the Grenada intervention of 1983, international lawyers have taken oppos-
ing sides: see William C. Gilmore, The Grenada Intervention: Analysis and Documen-
tation (Mansell, 1984), opposing the lawfulness of the action; and John Norton Moore,
“Grenada and the International Double Standard,” 78 AJIL 145– 68 (1984), favoring
lawfulness. On peaceful coexistence between the rival blocs, see Earl A. Snyder and
Hans Werner Bracht, “Coexistence and International Law,” 7 ICLQ 54–71 (1958); and
G. I. Tunkin, “Coexistence and International Law,” 95 RdC 1–82 (1958). On its succes-
sor, detente, from the standpoint of international law, see Edward McWhinney, The
International Law of Detente: Arms Control, European Security and East-West Coop-
eration (Sijthoff and Noordhoff International, 1978).
On the Brezhnev Doctrine in historical perspective, see Robert A. Jones, The Soviet
Concept of “Limited Sovereignty” from Lenin to Gorbachev: The Brezhnev Doctrine
(Macmillan, 1990). For the canonical exposition of the doctrine itself, see Sergei
Kovalev, “Sovereignty and International Duties of Socialist Countries,” Pravda, Sep.
25, 1968; translated and reprinted in 7 ILM 1323–25 (1968).
The Reagan Doctrine was never encapsulated into a single specific formulation. For
the best exposition of it, see Jeanne J. Kirkpatrick and Allan Gerson, “The Reagan
Doctrine, Human Rights, and International Law,” in Louis Henkin et al., Right v.
Might: International Law and the Use of Force (Council on Foreign Relations, 1991),
19–36. For a thorough general history of the Reagan Doctrine in action, though not
from a legal perspective, see James M. Scott, Deciding to Intervene: The Reagan Doc-
trine and American Foreign Policy (Duke University Press, 1996). On the two doc-
trines considered together and subjected to legal analysis, see W. Michael Reisman,
“New Wine in Old Bottles: The Reagan and Brezhnev Doctrines in Contemporary
International Law and Practice,” 13 Yale J. Int’l L. 171–98 (1988), which argues (cau-
tiously) for their lawfulness.
On the activity of the World Court in the first half century after its reestablishment
in 1946 (as the International Court of Justice), see Vaughan Lowe and Malgosia
Fitzmaurice (eds.), Fifty Years of the International Court of Justice: Essays in Honour
of Sir Robert Jennings (Cambridge University Press, 1996), especially 179–385, where
the court’s contributions to eleven areas of substantive law are covered. On the Inter-
national Law Commission, see R. P. Dhokalia, The Codification of Public Interna-
tional Law (Manchester University Press, 1970), 145–332; and Jeff rey S. Morton, The
International Law Commission of the United Nations (University of South Carolina
Press, 2000).
In post-1945 realist and positivist thought, a key figure has been Georg Schwarzen-
berger. On his life and career, see Stephanie Steinle, “Georg Schwarzenberger (1908–
1991),” in Jack Beatson and Reinhard Zimmermann (eds.), Jurists Uprooted: German-
Speaking Émigré Lawyers in Twentieth-Century Britain, 663–80 (Oxford University
Press, 2004); and, at greater length, Stephanie Steinle, Völkerrecht und Machtpolitik:
Georg Schwarzenberger (1908–1991) (Nomos, 2002).
On trends in socialist thought on international law since 1945, see John N. Hazard,
“Renewed Emphasis upon a Socialist International Law,” 65 AJIL 142– 48 (1971); and
W. W. Kulski, “The Soviet Interpretation of International Law,” 49 AJIL 518–34 (1955).
On Krylov, see Zigurds L. Zile, “A Soviet Contribution to International Adjudication:
Professor Krylov’s Jurisprudential Legacy,” 58 AJIL 359–88 (1964). On Tunkin, see
W. E. Butler, “The Learned Writings of Professor G. I. Tunkin,” 4 JHIL 394–423 (2002).
Solidarist thought became a major feature of international law after 1945, but the
literature on it is surprisingly thin. On Julius Stone, see Edward McWhinney, “Julius
Stone and the Sociological Approach to International Law,” 9(2) UNSWLJ 14–25
(1986). On Álvarez’s career on the World Court bench, see Katharina Zobel, “Judge
Alejandro Álvarez at the International Court of Justice (1946–1955): His Theory of a
‘New International Law’ and Judicial Lawmaking,” 19 Leiden J. Int’l L. 1017– 40
(2006). On Rolando Quadri, see Roberto Ago, “Sciences juridiques et droit interna-
tional,” 90 RdC 851–958 (1956), 908–11.
Assessments of the New Haven School are also rather sparse, considering the impact
that it has had, at least in American law schools in the generation after 1945. Probably
the single best presentation of the school’s stance is Myres S. McDougal, “International
Law, Power, and Policy: A Contemporary Conception,” 82 RdC 133–259 (1953). For a
survey of international law in general through the New Haven lens, see W. Michael
Reisman, “The Quest for World Order and Dignity in the Twenty-First Century: Con-
stitutive Process and Individual Commitment,” 351 RdC 9–381 (2010), especially 151–
61, where the “text-rule-based” mode of decision making is contrasted with the
“policy-context-based mode.” For a capsule account, see Martti Koskenniemi, The
Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cam-
bridge University Press, 2001), 474–77. For an account that focuses chiefly on Lass-
well, see James Farr, “The New Science of Politics,” in Terrence Ball and Richard Bel-
lamy (eds.), The Cambridge History of Twentieth-Century Political Thought, 431– 45
(Cambridge University Press, 2006). For a critical, but not unsympathetic, assessment
of the New Haven School, see Richard A. Falk, “Casting the Spell: The New Haven
School of International Law,” 104 Yale L. J. 1991–2008 (1995). For further criticism,
see Oran R. Young, “International Law and Social Science: The Contributions of
Myres S. McDougal,” 66 AJIL 60–76 (1972). In response, see Myres S. McDougal, “In-
ternational Law and Social Science: A Mild Plea in Avoidance,” 66 AJIL 77–81 (1972).
For the best flavor of the controversies generated by the New Haven School, see the
series of sharp attacks and defenses in “McDougal’s Jurisprudence: Utility, Influence,
Controversy,” 79 ASIL Procs. 266–88 (1985).
On the World Order Models Project, see Simon Dalby, “Against ‘Globalization
from Above’: Critical Geopolitics and the World Order Model Project,” 17 Environ-
ment and Planning, D: Society and Space 181–200 (1999). For Richard Falk’s own
presentation of his position, the best sources are probably Richard A. Falk, A Study of
Future Worlds (Free Press, 1975); and Richard A. Falk, On Humane Governance: To-
ward a New Global Politics (Polity Press, 1995).
On the emergence of the Third World countries into a major role on the world
scene, see Peter Lyon, “The Emergence of the Third World,” in Hedley Bull and Adam
Watson (eds.), The Expansion of International Society, 229–37 (Clarendon Press, 1984);
Patricia Buirette-Maurau, La participation du tiers-monde à l’élaboration du droit in-
ternational (Librairie générale de droit et de jurisprudence, 1983); and Gustavo Gozzi,
Diritti e civilità: Storia e filosofia del diritto internazionale (Il Mulino, 2010), 289–312.
On the termination of extraterritoriality in China, see Wesley R. Fishel, The End of
Extraterritoriality in China (University of California Press, 1952). On decolonization
generally, see James Crawford, The Creation of States in International Law (2nd ed.;
Clarendon Press, 2006), 602– 47. On the attitudes of Asian states toward international
law, see William L. Tung, International Law in an Organizing World (Crowell, 1968).
On African states and international law, see Felix Chuks Okoye, International Law
and the New African States (Sweet and Maxwell, 1972); and Romain Yakemtchouk,
L’Afrique en droit international (Librairie générale de droit et de jurisprudence, 1971).
For a wide-ranging look at the New International Economic Order of the 1970s, see
Kamal Hossein (ed.), Legal Aspects of the New International Economic Order (Frances
Pinter, 1980). On the principle of self-determination of peoples, a useful broad histori-
cal survey, though not from a legal perspective, is Alfred Cobban, The Nation State
and National Self-Determination (Collins, 1969). On Woodrow Wilson’s contribution,
see Erez Manela, The Wilsonian Moment: Self-Determination and the International
Origins of Anticolonial Nationalism (Oxford University Press, 2007). For a much more
skeptical view of Wilson’s commitment, see Trygve Throntveit, “The Fable of the
Fourteen Points: Woodrow Wilson and National Self-Determination,” 35 Diplomatic
History 445–81 (2011). For a specifically legal perspective on the question, the princi-
pal work is Antonio Cassese, Self-Determination of Peoples: A Legal Appraisal (Cam-
bridge University Press, 1995). On the development of the law on the use of force by
national liberation groups, see Heather A. Wilson, International Law and the Use of
Force by National Liberation Movements (Clarendon Press, 1988).
11. Shadows across the Path

On more recent developments, there is inevitably less available in the way of historical
perspective. For a convenient survey of postwar resorts to armed force, see Thomas M.
Franck, Recourse to Force: State Action against Threats and Armed Attacks (Cam-
bridge University Press, 2002).
For advance inklings of new Soviet thinking about international law, see Kazimierz
Grzybowski, “Soviet Theory of International Law for the Seventies,” 77 AJIL 862–72
(1983). On perestroika after 1985, see John N. Hazard, “ ‘New Thinking’ in Soviet Ap-
proaches to International Politics and Law,” 2 Pace Int’l L. Rev. 1–19 (1990); R. A.
Mullerson, “Sources of International Law: New Tendencies in Soviet Th inking,” 83
AJIL 494–512 (1989); and A. Carty and G. Danilenko (eds.), Perestroika and Interna-
tional Law (Edinburgh University Press, 1990). For Gorbachev’s own views on the
implications of perestroika for international relations (if not law specifically), see
Mikhail Gorbachev, Perestroika: New Thinking for Our Country and the World (Harper
and Row, 1987), 121–36.
On the Iran hostages crisis of 1979–81, Paul H. Kreisberg (ed.), American Hostages
in Iran: The Conduct of a Crisis (Yale University Press, 1985) contains a great deal on
legal aspects of the crisis, particularly Oscar Schachter, “International Law in the Hos-
tage Crisis: Implications for Future Cases,” 325–73. On the achievements of the Iran–
United States Claims Tribunal in the years following the crisis, see George H. Aldrich,
The Jurisprudence of the Iran–United States Claims Tribunal: An Analysis of the Deci-
sions of the Tribunal (Clarendon Press, 1996); and Wayne Mapp, The Iran–United
States Claims Tribunal: The First Ten Years, 1981–1991 (Manchester University Press,
1993).
On the contributions of Thomas Franck to legal thought, see David Kennedy, “Tom
Franck and the Manhattan School,” 35 N.Y.U. J Int’l L. and Pol. 397– 435 (2003); and
Janne Elisabeth Nijman, The Concept of International Legal Personality: An Inquiry
into the History and Theory of International Law (T. M. C. Asser Press, 2004), 407–27.
His own major works include Thomas M. Franck, The Power of Legitimacy among Na-
tions (Oxford University Press, 1990); Fairness in International Law and Institutions
(Clarendon Press, 1995); and The Empowered Self: Law and Society in the Age of Indi-
vidualism (Oxford University Press, 1999).
On critical legal studies, an excellent (and critical) overview is Nigel Purvis, “Criti-
cal Legal Studies in Public International Law,” 32 Harvard Int’l L. J. 81–127 (1991). The
movement’s major contribution to the field continues to be Martti Kosenniemi, From
Apology to Utopia: The Structure of Legal Argument (Cambridge University Press,
1989). For notable expositions by its leading champion, see David Kennedy, “Interna-
tional Legal Education,” 26 Harvard Int’l L. J. 361–84 (1985); “A New Stream of Inter-
national Law Scholarship,” 7 Wis. Int’l L. J. 1– 49 (1988); “Theses about International
Legal Discourse.,” 23 GYBIL 353–91 (1980); and “The Mystery of Global Governance,”
in Jeff rey L. Dunoff and Joel P. Trachtman (eds.), Ruling the World? Constitutionalism,
International Law, and Global Governance, 37– 68 (Cambridge University Press,
2009). For a vivid presentation of the skepticism of the critical school toward human
rights law, see David Kennedy, The Dark Sides of Virtue: Reassessing International
Humanitarianism (Princeton University Press, 2004), 8–35. For further writing in
this vein, see James Boyle, “Ideals and Th ings: International Legal Scholarship and the
Prison-House of Language,” 26 Harvard Int’l L. J. 327–59 (1985).
The major works of Philip Allott are Eunomia: A New Order for a New World (Ox-
ford University Press, 1990); and The Health of Nations: Society and Law beyond the
State (Cambridge University Press, 2002). For lucid commentary on his work, see
Cornelius F. Murphy, Theories of World Governance: A Study in the History of Ideas
(Catholic University Press of America, 1999), 121–38. See also Iain Scobbie, “ ‘The
Holiness of the Heart’s Affection’: Philip Allott’s Theory of Social Idealism,” in Alex-
ander Orakhelashvili (ed.), Research Handbook on the Theory and History of Interna-
tional Law, 168–95 (Edward Elgar, 2011).
Constitutionalism has become the dominant field in international law, at least
judging by the amount of writing and the number of people professing one form or
another of it. For an excellent overall summation of it, see Anne Peters, “Global Con-
stitutionalism Revisited,” 11 Int’l Legal Theory 39– 67 (2005), especially 48–58. Prob-
ably the best single exposition is Bruno Simma, “From Bilateralism to Community
Interest in International Law,” 250 RdC 217–384 (1994). See also Jeff rey L. Dunoff and
Joel P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and
Global Governance (Cambridge University Press, 2009); Jan Klabbers, Anne Peters,
and Geir Ulfstein, The Constitutionalization of International Law (Oxford University
Press, 2009); Christian Tomuschat, “Obligations Arising for States without or against
Their Will,” 241 RdC 195–384 (1993); Nicholas Tsagourias (ed.), Transnational Consti-
tutionalism: International and European Perspectives (Cambridge University Press,
2010); and D. M. Johnston (ed.), Towards World Constitutionalism: Issues in the Legal
Ordering of the World Community (Martinus Nijhoff, 2005).
Closely related to constitutionalism is international (or global) administrative law.
For the most notable exposition of this approach, see Benedict Kingsbury, Nico
Krisch, and Richard B. Stewart, “The Emergence of Global Administrative Law,” 68
(2 and 3) L and Cont. Prob. 15– 61 (2005). For a more succinct presentation, see Bene-
dict Kingsbury, “The Administrative Law Frontier in Global Governance,” 99 ASIL
Procs. 143–53 (2005). See also Benedict Kingsbury and Nico Krisch, “Introduction:
Global Governance and Global Administrative Law in the International Legal Order,”
17 EJIL 1–13 (2006).
The most prominent exposition of the feminist approach to international law is Hil-
ary Charlesworth and Christine Chinkin, The Boundaries of International Law: A
Feminist Analysis (Manchester University Press, 2000). In addition, see Hilary Charles-
worth, Christine Chinkin, and Shelley Wright, “Feminist Approaches to International
Law,” 85 AJIL 613–45 (1991); and Hilary Charlesworth, “Feminist Methods in Interna-
tional Law,” 93 AJIL 379–94 (1999). On Chinkin’s work, see Nijman, Concept, 428–44.
On the various international criminal tribunals, see Gary Jonathan Bass, Stay the
Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press,
2000). On the prosecution of heads of government for atrocities, see Ellen L. Lutz and
Caitlin Reiger (eds.), Prosecuting Heads of State (Cambridge University Press, 2009).
For robust objections to the use (or overuse) of universal jurisdiction, see Henry A.
Kissinger, Does America Need a Foreign Policy? Toward a Diplomacy for the 21st Cen-
tury (Free Press, 2001), 273–82. On the opposition in the African Union to universal
jurisdiction, see Charles Chernor Jalloh, “Universal Jurisdiction, Universal Prescrip-
tion? A Preliminary Assessment of the African Union Perspective on Universal Juris-
diction,” 21 Crim. L. F. 1– 65 (2010).
For a vigorous exposition of the shortcomings and defects of current international
law, in a variety of subject areas, see Matthew Parish, Mirages of International Justice:
The Elusive Pursuit of a Transnational Legal Order (Edward Elgar, 2011). A classic at-
tack on international lawyers is Dean Acheson, “The Arrogance of International
Lawyers,” 2 International Lawyer 591–99 (1968). For a more recent, and extended,
work in that vein, see Eric Posner, The Perils of Legal Globalism (University of Chi-
cago Press, 2009). Jack L. Goldsmith and Eric A. Posner, The Limits of International
Law (Oxford University Press, 2005) puts the case that the pursuit of rational self-
interest by states is the true driving force behind international law. For a valiant
defense of international law and lawyers against these critiques, see Mary Ellen
O’Connell, The Power and Purpose of International Law (Oxford University Press,
2008). On dangers that may lie ahead, see Samuel P. Huntington, The Clash of Civili-
zations and the Remaking of World Order (Simon and Schuster, 1996), especially 316–
21, where rules for coexistence are posited, on the basis of (purportedly) truly uni-
versal values.
Index
Abu Yusuf, 95 Aliens, treatment of, 273–274, 277, 352,

Academy of International Law. See Hague 363. See also Calvo Clause; Calvo
Academy of International Law Doctrine; Human rights; International
Acosta, José de, 125 minimum standard; Nationalization of
Ad hoc judges, 354–355, 464 property
Admiralty courts, 206, 212–213, 229 Alliances: in Sumer, 14; as basis of Roman
Advisory Committee of Jurists, 353, Empire, 31; Egypt and Hittites, 36–37;
362 Poland and Lithuania, 104; by states of
Advisory opinions (of the World Court), the Holy Roman Empire, 139; Christian-
355–357, 405– 407, 437– 438, 442– 443 pagan, 144, 150–151, 316; France and
Aerial warfare. See War, conduct of Spain, 207; anti-Boxer, 337; UN, 394, 400
Afghanistan, 440 Allott, Philip, 465– 466
African Charter on Human and Peoples’ Aloaçoves, Treaty of, 109–110
Rights, 447 Altamira, Rafael, 356
African Commission on Human and Altruism, parochial. See Parochial
Peoples’ Rights, 447 altruism
African Court on Human and Peoples’ Álvarez, Alejandro, 291–292, 302, 306, 310,
Rights, 447 374, 375, 401, 415, 425, 431, 455
African Union (AU), 471, 477 Amalfian, 81
Aggression: by Germany in World War I, Aman, 99
349; as an international crime, 395, 398, Ambrose of Milan, 55
399, 402, 403, 432, 448, 450, 470 American Bar Association, 404
Ago, Roberto, 414, 415– 416 American Society of International Law,
Agricultural theory, 128–129 274, 307, 381, 392, 405; founding of, 302
Alanus Anglicus, 58, 65 Amin, Idi, 473
Albania, 360, 410– 411 Anarchism, 321
Alberdi, Juan Bautista, 287–288, 294, 297, Ancus Marcius, 32
306, 307 Antonio de Montesinos, 121
Alberic of Rosate, 89 Anzilotti, Dionisio, 232, 234–236, 246,
Alcorta, Amancio, 307 284, 302, 306, 348, 355, 356, 365,
Alexander I (of Yugoslavia), 362 368–369, 401
Alexander III, Pope, 58 Apastamba, 17
Alexander VI, Pope, 110 Aquinas, Thomas, 61, 62, 66, 72, 78, 83,
Alexander the Great, 10, 35, 44, 92–93, 101, 154, 160 166, 167, 168, 184,
143 245–246, 379
Alfonso IX (of Leốn), 55, 150 Aragon, 58
604 Index
Arangio-Ruiz, Gaetano, 417, 419 Austria, 177, 208, 238, 278, 280, 281, 289,
Arbitration: in Sumer, 13–14; in ancient 339, 356–357, 359–360, 366, 367, 380.
China, 19; ancient Greece, 30; con- See also Austria-Hungary
trasted with ligitation, 30, 328–329; Austria-Hungary, 324, 349
papal, 57–59; at the First Hague Peace Autarkeia, 25. See also Autarky
Conference, 217; in the nineteenth Autarky, 25, 386
century, 218, 298–299, 300, 307–308, Autolimitation theory, 240–241, 242, 247,
328–330, 338–339; collections of 384; criticism of, 426. See also
decisions, 303; ser vice by international Neo-Kantianism
lawyers, 307, 308, 309; post–World War Averroes, 465– 466
II, 396, 411, 441, 446. See also Arbitra- Awza’i, Abd al-Rahman al-, 95
tion (cases); Court of Arbitral Justice, Axelrod, Robert, 35, 242–243
proposed; Mixed-claims commissions; Ayala, Balthasar, 148–149, 149–150
Permanent Court of Arbitration Aztec Empire, 107, 117
Arbitration (cases): Geneva (1872),
298–299, 329; Don Pacifico incident, Bacon, Francis, 179, 227, 479
335–336; Venezuelan Preferences, Balboa, Vasco Nuñez de, 111, 112
336 Baldus of Ubaldis, 82
Argentina, 307, 335, 338, 466 Barbarian states: ancient Greece and, 27,
Arias de Ávila, Pedro (Pedrarias Dávila), 35; in the nineteenth century, 311–312,
112 315, 335, 432– 433. See also Civilized
Ariga Nagao, 315, 324 states; Extraterritoriality; Inequality of
Aristides, 11 states; Savage states
Aristotelianism, medieval, 78–79, 143, Barbosa de Oliveira, Ruy, 326, 348, 355
144–145, 156, 265 Bartolus of Sassoferrato, 54, 76–77, 82,
Aristotle, 7, 25–26, 30, 35, 42, 45, 61, 62, 89, 109
117, 118, 121, 122–123, 167, 169, 174, Bashir, Omar al, 475, 477– 478
182–183, 186, 196, 250, 285. See also Basic norm (Vienna School), 368–369, 379,
Aristotelianism, medieval; Natural 456. See also Vienna School
sociability, principle of Ba status, 19
Armed conflict. See Wars Bastiat, Frédéric, 271, 272
Armenia, 58; massacres in, 350, 397 Bastid, Suzanne, 464
Arntz, E. R. N., 296, 297 Baudhayana, 17
Artasastra, 16–17 Bedjaoui, Mohammed, 471
Ashburton, Alexander Baring, Lord, Belgium, 278, 296, 345, 347, 348, 350, 351,
246–247 358, 359, 390, 470– 471, 472
Ashoka, 37 Belli, Pierino, 148
Assassins, employment of, in war, 198 Bello, Andrés, 263–264, 306
Asser, T. M. C., 300–301, 302, 324, 325 Bentham, Jeremy, 210–211, 223, 263
Asylum, 207, 350 Bergbohm, Carl, 239
Atomic energy, 396. See also Nuclear Bernard, Henri, 399
weapons Beyani, Chaloka, 471
AU. See African Union Black Sea, demilitarization of, 298
Augustine of Hippo, 65, 68, 96 Blockade, 212, 327, 328, 329, 334–336, 338
Austin, John, 223–224, 231, 239, 305, 334, Bluntschli, Johann Kaspar, 262, 264–267,
392 284, 289, 301, 303, 308, 322, 323, 413, 462
Australia, 353 Bodin, Jean, 145–147, 169, 273
Index 605
Boissonade, Gustave, 315 Callixtus III, Pope, 109

Bolívar, Simon, 263 Calvo, Carlos, 228–229, 246, 276–277, 306,
Bolivia, 352 307, 338, 363. See also Calvo Clause;
Bonaparte, Napoleon, 210 Calvo Doctrine
Bonet, Honoré, 84–85, 89, 102 Calvo Clause, 277
Bonfi ls, Henry, 258–259, 264, 292–293, Calvo Doctrine, 276–277, 338, 434
311, 351 Canada, 130, 246, 304, 437, 441
Boniface VIII, Pope, 57, 58–59 Cannon-shot rule, 204–205
Bonnot, Gabriel. See Mably, Gabriel Canon law, 53–54, 60, 73, 82, 83, 116, 118,
Bonnot, Abbé de 144, 223
Bonn School, 239 Capitulations: Ottoman, 316, 358; Persian,
Borchard, Edwin, 273–274, 391, 394, 429 359. See also Consular jurisdiction;
Bosnia, 445 Extraterritoriality; Mixed courts,
Boulding, Kenneth, 456 Egyptian
Bourgeois, Léon, 291 Carnegie, Andrew, 301, 333–334
Bourquin, Maurice, 414– 415 Carnegie Endowment for International
Bouvet, Honoré. See Bonet, Honoré Peace, 302, 363, 372, 387
Boxer Rebellion, 337 Carnegie Institution of Washington, 301–302
Brazil, 111, 223, 317, 324, 326, 348 Caroline incident, 246–247
Brezhnev Doctrine, 407– 409, 410, 444 Carr, E. H., 392
Briand, Aristide, 361. See also Pact of Paris Cartagena, Alfonso de, 108–109
Brierly, James, 381–382, 401, 421 Cartazes, 132
Britain. See Great Britain Cartier, Jacques, 130
Brownlie, Ian, 416, 419, 451 Cassese, Antonio, 471
Brussels projet. See War, conduct of Cassin, René, 402
Budapest Articles of Interpretation, 393, Catholic Church, 51, 52, 282; and
394. See also Pact of Paris natural-law revival, 378. See also Bulls,
Buddhism, 37–38 papal; Canon law; Christianity;
Buergenthal, Thomas, 423 Constance, Council of; Crusades;
Buero, Antonio, 348 Lateran Council; Lyon, Council of;
Bughat, 99–100 Papacy, Catholic; Sanctions:
Bulgaria, 58, 296, 324, 349, 359–360, ecclesiastical
406– 407 Cecil, Robert, 352–353
Bulls, papal: Ausculta fili, 57; In coela Central African Republic, 450
domini, 106; Dum diversas, 109; Central American Court of Justice,
Romanus Pontifex, 109; Inter Caetera 333–334, 354
(1456), 109; Inter caetera (1493), 110; Cession of territory, 129–131
Sublimis Deus, 118–119. See also Ceylon, 433
Catholic Church; Papacy, Catholic Chad, 477, 478
Burke, Edmund, 221 Chamberlain, Neville, 390
Burlamaqui, Jean-Jacques, 177, 195 Chardin, Teilhard de, Pierre. See Teilhard
Burma, 433 de Chardin, Pierre
Bush, George H. W., 444 Charlemagne, 53, 98
Bynkershoek, Cornelius van, 192–193, 196, Charles II (of England), 166
213, 221 Charles IV, Emperor, 76
Byzantine Empire, 87, 94, 98, 105, 106, Charles V, Emperor, 120, 148, 150
316 Charles d’Orléans, 86
606 Index
Charlesworth, Hillary, 462– 464 Codification of international law: and

Chaucer, Geoff rey, 85–86 natural law, 205; debates over, 319,
Chemical weapons. See Weapons, prohibited 321–322, 362–363. See also Codification
Chevalier, Michel, 272 projects; International Law Commission
Chile, 263, 306, 352, 472 Codification projects: Grégoire, 209–210;
China: pre-imperial, 7, 13, 15–16, 17–25, in nineteenth century, 265, 322–323;
223, 328; imperial, 37–38, 39– 41, 48– 49, interwar period, 363–364; post–World
59– 60, 314, 315, 324, 334–335, 337; War II, 412– 414, 440– 441. See also
isolation in the nineteenth century, Codification of international law
295–296; as a barbarian state, 311, 312; Cold War, 344, 395–396, 404– 410, 412,
reception of Western international law, 415, 430; end of, 440, 443– 445, 448, 452
312–314; extraterritoriality in, 316–317, Collective security: Mencius on, 23;
352, 359, 433; post-imperial, 400, 404, interwar, 351–352, 362, 371, 372, 374,
427, 472 390; attacks on, 391–393; post–World
Chinkin, Christine, 462, 463 War II, 395–396, 400, 422– 423, 444
Christianity, 63– 64; and natural law, 56, Collini, Lorenzo, 217
59, 65, 124, 160; and just-war doctrine, Colombia, 114
67– 68, 69, 71, 96, 117, 152; and govern- Columbus, Christopher, 107, 110, 111
ment, 74, 145; and conversion of infidels, Combatant status, 325, 435. See also
102–103, 104, 108, 110, 113–114, 116–117, Martens Clause; National liberation,
119, 121–122. See also Bulls, papal; wars of
Canon law; Catholic Church; Crusades; Commission on the Responsibility of the
Dilatatio theory; Papacy, Catholic; Authors of the War, 349
Sanctions, ecclesiastical Committee Against Torture, 447
Christine de Pisan, 85, 89, 462 Common juridical conscience, 253, 262,
Cicero, Marcus Tullius, 32, 45, 47, 469 478. See also Fairness, concept of;
Civilized states, 310–312, 315, 317, 318, Justice, sense of; Natural law
432– 433; Turkey as, 312; Japan as, 317; Common law: ancient Greek, 27; Ius
and P.C.I.J. Statute, 382. See also gentium as, 45, 155; English, 72, 213,
Barbarian states; Inequality of states; 229. See also “Common law of human-
Savage states ity”; Ius commune
Civil wars, 323, 435, 445, 450, 470, 473; “Common law of humanity,” 262, 297.
in Islamic law, 99–100; intervention in, See also Ius gentium
278–279; American Civil War, 299, 329; Common-will variant of positivism, 226,
in the former Yugoslavia, 445, 448; in 231–236, 238, 246, 247, 257, 261, 365,
Congo, 470; in Pakistan, 473. See also 376, 415, 426; modification of, 368–369;
Humanitarian intervention and socialist thought, 384. See also
Civitas maxima. See Supreme state Empirical variant of positivism;
(of Wolff ) Positivism (general); Voluntarist variant
Classics of International Law, The, 301–302 of positivism
Clement V, Pope, 77–78, 106 Communes, medieval Italian, 74, 75–77,
Clement VI, Pope, 103, 108, 109 94, 169
Clement VII, Pope, 84 Community, human, 43, 45, 46, 146, 155,
Cobbett, William, 199 293, 296, 465. See also Community,
Cobden, Richard, 272 international; Natural law; Natural
Cobden-Chevalier Treaty, 272 sociability, principle of; Peremptory
Cocceji, Samuel, 177, 310 norms; Solidarism
Index 607
Community, international, 211, 299–300, Contractual character: of ius gentium, 156;

373, 399, 407, 423; collective will of, 230, of the voluntary law of nations, 161; of
253, 379–380; positivist criticism of, customary international law, 185, 194,
238–239, 249, 417– 418, 470– 471; 200, 232, 247–248, 417– 418. See also
mainstream positivist view of, 249–251; Customary international law: legislative
solidarist view of, 261, 285, 292–297, view of; Treaties (general): contractual
296, 378, 425, 426, 427, 452, 453– 454, character of
457; membership of, 299–300, 310–312; Conventions. See Treaties, multilateral
F. F. Martens on, 309; and neutrality, Cortés, Hernán, 114, 117
394; socialist criticism of, 420; peremp- Costa Rica, 275, 325, 333, 447
tory norms and, 432; Third World and, Council of Europe, 471
432– 434; and universal jurisdiction, Council of the Indies, 114, 115, 123
470. See also Barbarian states; Civilized Court of Arbitral Justice, proposed,
states; Common juridical conscience; 332–333, 354
Community, human; Constitutionalism; Crassus, Marcus Licinius, 34
Equality of states, principle of; Crawford, James, 414
Humanitarian intervention; Inequality Crimes against humanity: in World War I,
of states; Legislation, international; 350; and Nuremberg Trials, 397, 398;
Natural law; Natural sociability, International Law Commission on, 402;
principle of; Opinio juris; Peremptory and Yugoslavia Crimes Tribunal, 440,
norms; Quasi-sovereignty; Savage states; 448– 449, 464; legal defi nition of,
Solidarism; Stoics and stoicism; World 448– 449; and International Criminal
government Court, 450, 478; and Rwanda Crimes
Comte, Auguste, 222–223, 227–228, 256, Tribunal, 464; and universal jurisdic-
275–276, 286, 314, 371, 458 tion, 470. See also Genocide
Condillac, Étienne Bonnot de, 193 Crimes against the peace, 397, 398, 470.
Conduct of war. See War, conduct of See also Aggression: as an international
Confucianism, 21–23, 39– 40 crime
Confucius, 18. See also Confucianism Critical legal studies, 458– 461, 463
Congo, 442, 450, 470, 477 Croatia, 445
Conquest. See Title to territory, legal Crossbows. See Weapons, prohibited
bases of Crusades: in the Holy Land, 55, 102, 106;
Consolato del Mare, 81, 202–203 in Spain, 100, 113; in the Canary Islands,
Constance, Council of, 104–105 103; in northeastern Europe, 103–105.
Constance, Peace of, 76 See also Dilatatio theory; Just-war
Constitutionalism, 453– 458, 460, 466; doctrine, medieval; Muslim and
Scelle and, 376–377; Quadri and, 426; Christian states, relations between
criticism of, 460 Cuba, 326, 347, 407
Consular jurisdiction, 316, 323. See also Customary international law, 181, 184, 186,
Extraterritoriality 226, 249–250, 263, 266, 267, 273–274,
Continental Shelf, 413, 440– 441 310, 337, 382, 410, 418– 419, 432;
Contraband of war, 191–192, 197–198, contractual view of, 185, 194, 200, 232,
211–212, 323, 327, 328 247–248, 417– 418; relation to treaties,
Contract-treaties, 232–234, 384. See also 193, 200, 440– 441; as the primary basis
Common-will variant of positivism; of international law, 230–231, 236, 416;
Law-treaties; Treaties (general): contrast to usage, 231; mainstream
contractual character of positivist view of, 252–253; legislative
608 Index
Customary international law (continued) de Staël, Germaine, 280

view of, 268–269, 370; majority rule and, de Visscher, Charles, 348, 356, 415
417– 419. See also Ius gentium; Peremp- Dharmasastras, 17
tory norms; Usage Digests of international law, 302–303
Customary law (general), 80; medieval law Dilatatio theory, 102–103, 104–105, 119–123
merchant, 86–87; ius gentium as, 155–156, Diogenes, 43
173; Grotius on, 161; Pufendorf on, Diplomatic immunity. See Immunity,
175–177. See also Customary interna- diplomatic
tional law; Customary practices of states Diplomatic relations, 7; in imperial China,
Customary practices of states: in ancient 20, 39– 40; in ancient Greece, 25; and ius
China, 20–21, 24; in ancient Greece, 28; commune, 73; Islamic, 96, 98–99; Asian,
in medieval Europe, 80–91; diplomacy, 131; Grotius on, 162; Rachel on, 172;
98–99; Pufendorf on, 175–177; as a Zouche on, 191–192; Bynkershoek on,
source of international law, 181, 193, 192; G. F. von Martens on, 199; Harvard
194, 200, 247, 257, 319, 325, 369, 478; Research project on, 363; ruptures of,
European, 202, 315, 384. See also 231, 334. See also Immunity, diplomatic
Customary international law; Empirical Diplomatics, science of, 190
variant of positivism; Usage Diplomatic ser vice by international
Cynics, 42– 43 lawyers, 84, 108, 133, 148, 171–172, 193,
Czechoslovak ia, 360, 407, 408– 409 195, 228–229, 230, 263, 275, 305–306,
419– 420, 427
d’Aguesseau, Henri François, 210–211 Diplomats, mistreatment of, 9, 20, 335,
Dante Alighieri, 54, 74, 77, 146, 370 441– 442. See also Immunity, diplomatic
Danton, Jacques, 208 Djibouti, 477
Danzig, Free City of, 356, 380 Dominium, 204–205
Dar al-Ahd (“House of Covenant”), 98–99 Domin-Petrushevecz, Alphonse von, 322
Dar al-Harb (“House of War”), 96, 98, Donnedieu de Vabres, Henri, 415
100, 383 Don Pacifico incident, 335–336
Dar al-Islam (“House of Islam”), 96, 98 Drago, Luis María, 338
Dar al-Suhl (“House of Truce”), 98 Drago Doctrine, 338
David II (of Scotland), 85 Drake, Francis, 127
Declarations: of Peace, 206–207; of Pilnitz, Dualist theories: of ius gentium, 63– 65,
208; of Paris, 319–320, 323; of St. 66– 67, 153; of Suárez, 154–158; of
Petersburg, 320; of London, 328, 332; on Grotians, 159–163; of Grotian school,
Friendly Relations (UN), 412, 437 170–173, 178, 180, 182, 183, 226; of
Decolonization, 211, 285, 344; UN positivists, 234–235, 243, 417; criticism
Declaration on, 436. See also of positivist dualism, 238, 370, 373,
Self-determination 375–376, 428. See also Monism
Decree on Peace, 382 Dugard, John, 414
de Gaulle, Charles, 402 Duguit, Léon, 291, 293, 294, 297, 370, 373,
de Groot, Hugh. See Grotius, Hugo 374–375, 398–399
Denial of justice. See Justice, denial of Dulles, John Foster, 404
Denmark, 77, 175, 313 Dumont, Jean, 190–191
Depositions of rulers by popes: Frederick Dupuy, Pierre-Marie, 451– 452
II, 50–51, 56–57, 445; Henry IV, 56; Durkheim, Émile, 291, 373, 375
Sancho II, 57 Dutch East India Company, 132, 133, 151,
Descamps, Édouard, 362 158
Index 609
Eagleton, Clyde, 421, 427, 458, 466–467, 479 Erasmus of Rotterdam, 93, 118
Eclectic school. See Grotian school Ethiopia, 336–337, 390, 447
Edward I (of England), 58–59, 106 Eugenius III, Pope, 103
Egypt: ancient, 36–37; medieval, 105, 106; European Court of Human Rights, 415,
mixed courts in, 316, 358–359, 433; 447, 467, 470
British intervention in, 336. See also “External state law,” international law as,
Suez Canal 237–238
Elizabeth I (of England), 127 Extradition, 14, 19, 33, 36–37, 233, 234,
El Salvador, 275, 333 350, 363, 472
Emanationist theory (of ius gentium), 63, Extraterritoriality, 315–317, 352, 384;
66– 67, 152–153, 154, 162, 379. See also attack on, 352, 358–359, 433. See also
Dualist theories: of ius gentium; Capitulations; Inequality of states
Substitution theory (of ius gentium)
Emergent strategies of order, 180–181; Fabian socialists, 430
network of treaties as, 201; neo- Fairness, concept of, 452– 453. See also
Kantianism as, 242–243, 276; main- Common juridical conscience; Justice,
stream positivism as, 248, 319; sense of; Natural law
liberalism as, 276; solidarism and, 424, Falk, Richard A., 431
431, 459 Falkenberg, John, 104
Empirical variant of positivism, 226–231, Fascist view of international law, 386
236, 243, 246, 247, 249–250, 252–253, Fassbender, Bardo, 454
254, 257, 334, 364–366, 381, 415– 416, Fauchille, Paul, 302
417, 418; and solidarism, 294, 424; and Feminism, 462– 464
the Vienna School, 368–369, 371; and Fenwick, Charles, 351, 372
realism, 392; and socialism, 420. See also Fetial law, Roman, 32–33, 171
Common-will variant of positivism; Feudal law, 144, 318–319
Positivism (general); Voluntarist variant Feudal system, European, 52, 85, 108,
of positivism 205–206, 271. See also Feudal law
Enforcement of international law. See Field, David Dudley, 322
Just-war doctrine, medieval; Just-war Fiore, Pasquale, 274, 282, 303, 306, 307,
ideas, ancient; Just-war ideas, modern; 322, 347, 413
Measures short of war; Sanctions; United Flamininus, Titus Quinctius, 33–34
Nations (UN): enforcement action by Force, prohibition against. See Use of force,
Engels, Friedrich, 286 prohibition against
England, 55–56, 57, 58–59, 86, 126, 134. Foreign ministry legal advisers, 232, 306,
See also Common law: English; Great 308, 309, 315, 380, 408, 415, 459
Britain Formosa, 334–335
Equality of states, principle of, 2, 39, 324, Fragmentation of international law,
343, 344, 353, 430; Mencius on, 22; Wolff concern over, 455, 457, 460
on, 187; Vattel on, 197; in positivist France: medieval, 51, 55–56, 57, 58, 77, 82,
doctrine, 244–245; at the Hague Peace 86, 98; early modern, 126, 127, 139, 150,
Conferences, 324, 327; Barbosa on, 326; 190, 202, 270; Revolutionary, 206–210,
Strupp on, 365; in socialist doctrine, 211, 213, 221; nineteenth century, 272,
384, 386; in Nazi doctrine, 387; 291, 298, 306, 312, 316, 334–335, 336;
post–World War II, 412; and the Third interwar, 345–346, 351, 358, 361, 362,
World, 433. See also Inequality of states; 366; post–World War II, 397, 400
Sovereignty, state Francis I (of France), 127, 150–151
610 Index
Franck, Thomas, 452– 453, 458, 473 of, 409; Additional Protocols (1977), 435.
Fraternity Decree, 208 See also War crimes
Frederick I, Emperor, 75–76 Genocide, 343, 402, 432, 445, 448– 450,
Frederick II (of Prussia), 183 470, 475. See also Genocide Convention
Frederick II, Emperor, 50–51, 55, 56–57, Genocide Convention, 402, 404, 445, 448.
455 See also Genocide
Freedom of the air, rejection of, 361 Gentili, Alberico, 149, 163, 469
Freedom of the seas, 361; Grotius on, German Confederation, 198. See also
133–134, 135, 204; opposition to, Germany
134–135; Bynkershoek on, 192; German Society of International Law, 302
Bluntschli on, 266–267. See also Law of Germany: medieval, 50, 53, 56; early
the sea; Territorial waters modern, 139, 183, 193–194; in the
Freedom of trade: natural-law right of, nineteenth century, 232, 236, 237, 238,
134; liberalism and, 270–273, 371; and 285, 287, 305, 324, 336; in the interwar
globalization, 467 period, 344, 345–346, 348, 349–351,
“Free ships make free goods” doctrine, 356–357, 358, 360, 363, 364, 380, 386,
202–203, 207, 319–320. See also 387–390, 394; post–World War II, 395,
Neutrality 397–398, 415, 444, 454, 456. See also
Freitas, Serafi m de, 134 German Confederation; Holy Roman
French Revolution, 205, 206–210, 221, 285, Empire; Nuremberg Trials
286, 364 Gide, Charles, 291
Friedmann, Wolfgang, 343, 374, 389, 425, Gierke, Otto von, 237, 239
427, 451 Giles of Rome, 101
Fukuyama, Francis, 452 Global administrative law, 458, 466.
Funck-Brentano, Théophile, 217, 229–230 See also Constitutionalism
Functionalism, 285, 288–289, 374, 377, 429, Globalization, 467– 468. See also Freedom
453. See also International organiza- of trade; Liberalism; Solidarism
tions; Solidarism Gorbachev, Mikhail, 443
Fundamental rights of states, 245–247, 249, Gratian, 83
274, 285; opposition to, 246, 375. See also Great Britain, 208, 211–212, 246–247, 272,
Positivism (general): mainstream; 288, 298–299, 306, 307–308, 312,
Principle of freedom 312–313, 316, 317, 318, 320, 329, 335–336,
347, 358, 390, 392, 397, 400. See also
Gaius, 45, 47 England; Scotland
Gaps in the law, 248, 266, 322, 460. See also Greece: ancient, 7–8, 13, 25–31, 33–34, 35,
Codification of international law; 42– 44, 75, 78, 117, 193, 311, 328; modern,
Contractual character: of customary 278, 335–336, 347–348, 356, 360
international law Grégoire, Henri, 208–210
GATT. See General Agreement on Tariffs Gregory VII, Pope, 56, 58
and Trade Gregory IX, Pope, 55
Gautama, 17 Gros, André, 397
General Agreement on Tariffs and Trade, Grotian school, 170–173, 178, 180, 182, 183,
411, 445– 446. See also World Trade 184, 191, 199, 221, 262–264, 265, 309;
Orga nization and empirical variant of positivism, 226,
General Postal Union, 288–289 227–228. See also Naturalist school
Geneva Conventions, 320, 324, 361, Grotius, Hugo, 139, 141, 143, 144, 147, 153,
402– 403, 443, 469, 470; grave breaches 167, 184, 191, 195, 219, 256–257, 258, 262,
Index 611
305, 314, 381; on freedom of the seas, Henry of Segusio. See Hostiensis
132–134, 134–135, 204; on alliances with Herder, Gottfried, 280
pagans, 151; on natural law, 160, 174; on Hermogenian, 47– 48, 63, 64
the voluntary law of nations, 160–163, Herodotus, 26–27, 30, 36
186, 187, 247–248; on war, 163–165; Hershey, Amos S., 292
impact of, 165–166, 175, 188, 192; and Hesiod, 7
the Grotian school, 170–173 passim; Higgins, Rosalyn, 464
criticism of, 177. See also Grotian school; Hirohito, Emperor, 399
Naturalist school Historical school, 237, 263, 265, 267, 268;
Grundnorm. See Basic norm (Vienna and voluntarist variant of positivism,
School) 237, 253; hostility to natural law, 237,
Guatemala, 116, 275, 333 279; affinity to positivism, 244, 251,
Guillaume, Gilbert, 470– 471 279–280; and nationality school,
Gürke, Norbert, 388 279–280; and solidarism, 293; and
Gustavus Adolphus, 143, 159, 184 Nazism, 387
Hitler, Adolf, 387, 395
Hague Academy of International Law, 364, Hittites, 15
378, 388, 414, 420, 423, 451– 452, 453 Hobbes, Thomas, 62, 166–170, 173, 174,
Hague Conventions, 324–325, 327–328. 175, 181, 188, 235, 236, 242, 246, 250,
See also Hague Peace Conferences; 261, 417
International Prize Court, proposed; Holland, T. E., 149, 332
Permanent Court of Arbitration Holy Roman Empire, 50–51, 52, 94, 139,
Hague Peace Conferences, 300, 324, 344; 188, 190, 193, 208; and Italian com-
First, 217–218, 323–325, 330; Second, munes, 75–77
319, 325–328, 332–333, 338 Honduras, 275, 325, 333, 409– 410
Hague Rules. See War, conduct of Honorius III, Pope, 58, 131
Haiti, 444– 445 Hostages, 18, 86. See also Tehran hostages
Hall, William Edward, 224, 229, 246, 311, incident
351, 365 Hostiensis, 101
Halleck, Henry W., 263, 308, 323 Hudson, Manley O., 348, 356, 363,
Hanafite School, 95–96, 98 371–372, 377, 401, 415, 423, 451
Hanseatic League, 207 Huerta, Victoriano, 275
Harcourt, William, 307 Hughes, Charles Evans, 355–356
Hardin, Garrett, 455– 456 Humanitarian intervention, 124–125, 164,
Haroun al-Rashid, 95, 96 245, 278–279, 282–283, 296–297,
Harrison, Benjamin, 307–308 472– 474
Hart, H. L. A., 371 Human rights: and natural law, 69; and
Harvard Research project, 363–364 treaties of amity and commerce, 202;
Hattusilis III (Hittite ruler), 36 liberalism and, 218, 273–274, 279, 344,
Hautefeuille, Laurent-Basile, 263 371, 414, 422– 424; UN and, 396,
Heffter, August, 228, 239, 246, 304, 307 402– 404, 411– 412, 464; and post-World
Hegel, Georg Friedrich, 236–237, 238, 452. War II peace treaties, 406; criticism of,
See also Neo-Hegelianism 421, 456, 461; solidarism and, 425,
Henkin, Louis, 423 428– 429, 430, 452, 457; case law on,
Henry IV, Emperor, 56, 57–58 446– 447; regional initiatives, 447;
Henry VII, Emperor, 77 feminism and, 462– 463; and national
Henry of Portugal, Prince, 107, 109 traditions, 467; and universal jurisdiction,
612 Index
Human rights (continued) Indian Ocean world, 8, 111, 131–132

470, 471. See also Aliens, treatment of; Indians: Chichimec, 114; Delaware, 130
Humanitarian intervention; Human- Mohegan, 130. See also Aztec Empire;
rights conventions; Impunity; Incan Empire
Minorities, protection of; Racial Indonesia, 344, 433
equality; Refugees; Self-determination; Inequality of states: Confucianism and,
Women, position of 21–22, 39– 41, 59– 60; ancient Greece
Human Rights Committee, 412, 446– 447 and, 27, 35; in the nineteenth century,
Human-rights conventions, 403– 404, 251–252, 299–300, 311, 315–317, 375.
446– 447, 462; Convention on the Status See also Barbarian states; Civilized
of Refugees, 403; Covenant on Civil and states; Equality of states, principle of;
Political Rights, 411– 412, 423– 424, 436, Extraterritoriality; Savage states;
446– 447; Convention against Torture, Treaties (general): unequal
447, 470 Infidels, alliances with. See Alliances,
Humboldt, Alexander von, 263 Christian-pagan
Hume, David, 226, 271 Innocent III, Pope, 55–56, 57, 77
Humphrey, John P., 402 Innocent IV, Pope, 50–51, 55, 56–57,
Hungary, 131, 359–360, 406– 407. See also 101, 102, 104, 113, 116, 124, 144, 251,
Austria-Hungary 445
Hurst, Cecil, 325, 347, 355, 356 Innocent X, Pope, 139
Hybrid tribunals, 475 Institute for International Law (Kiel),
305, 389
Ibn Rushd. See Averroes Institute of International Law, 279, 312,
I.C.J. See International Court of Justice 313–314, 324; founding of, 301; and
(World Court) codification, 323
Immunity, diplomatic, 472; violations of, 9, Institute of International Relations
20, 335, 441– 442; Kautilya on, 16; Suárez (Moscow), 419– 420
on, 157–158; Zouche on, 171, 191–192; Institute of State and Law, 408, 421, 422
Grégoire on, 209; Institute of Interna- Inter-American Court of Human Rights,
tional Law on, 323; International Law 423, 447
Commission on, 413 International Bank for Reconstruction
Immunity of government officials, 472, and Development. See World Bank
474– 475 International Center for the Settlement
Immunity of states from execution of Investment Disputes, 446
measures, 338 International Commission for Air
Imperialism: in the New World, 92–93, Navigation, 361
107–131; in the Indian Ocean world, International Committee of the Red Cross.
131–135; in the nineteenth century, See Red Cross, International Committee
318–319, 321. See also Capitulations; of the
Crusades; Extraterritoriality; Inequality International community. See Community,
of states; Mixed courts, Egyptian international
Imperium, 204–205 International Court of Justice (World
Impunity, 474– 475. See also International Court), 396, 401, 407, 410– 411, 412, 419,
criminal law 422, 425, 427– 428, 431, 464; and Cold
Incan Empire, 92, 107, 114, 124–125 War, 405– 407; increased activity of,
India: ancient, 13, 15–17, 37–38; modern, 440– 444. See also International Court
344, 433, 473 of Justice (World Court) cases
Index 613
International Court of Justice (World International criminal law. See Aggression;

Court) cases: Nuclear Weapons, 400, Crimes against humanity; Genocide;
442– 443; Conditions of Admission, International Criminal Court; Nurem-
405– 406; Competence of the [General] berg Trials; Rome Statute; Rwanda
Assembly for Admission, 406, 425; Crimes Tribunal; Tokyo Trials;
Interpretation of the Peace Treaties, Yugoslavia Crimes Tribunal
406– 407, 425; Military Activities in International Criminal Tribunal for
Nicaragua, 409–410, 442; Corfu Channel, Rwanda. See Rwanda Crimes Tribunal
410– 411; Certain Expenses of the UN, International Criminal Tribunal for
411; Namibia, 411; Status of South West Yugoslavia. See Yugoslavia Crimes
Africa, 411; Reservations to the Genocide Tribunal
Convention, 413– 414, 455; Anglo- International Labor Orga nization, 356,
Norwegian Fisheries, 419; Asylum, 419; 375, 396, 425
Barcelona Traction, 432; Western International Labour Office, 289
Sahara, 436; East Timor, 436; Conse- “International law” (expression), 158, 163,
quences of the Wall, 436, 443; Unilateral 181, 210–211, 237–238; ius inter gentes,
Declaration of Independence of Kosovo, 171. See also Ius gentium; “Law of
437– 438; Tehran Hostages, 441– 442; nations” (expression); Transnational law,
Continental Shelf (Libya/Malta), 441; concept of
Continental Shelf (Libya/Tunisia), 441; International law, teaching of, 304–305
Gulf of Maine, 441; Congo v. Uganda, International law as a profession, 299,
442; Genocide (Bosnia v. Serbia), 445; 300–303, 308, 339
Genocide (Bosnia v. Croatia), 445; Arrest International Law Association, 301, 412;
Warrant, 470– 471, 472; Use of Force on the Pact of Paris, 393–394
(Serbia v. NATO States), 474 International Law Commission, 401,
International courts and tribunals, ad hoc. 412– 414, 440, 457, 464
See Arbitration; Arbitration (cases); International-law spectrum, 180–182, 183,
International Center for the Settlement 184, 194, 213, 221
of Investment Disputes; Nuremberg International Maritime Committee, 289
Trials; Permanent Court of Arbitration; International minimum standard,
Rwanda Crimes Tribunal; Tokyo Trials; 273–274; opposition to, 276–277.
Yugoslavia Crimes Tribunal See also Aliens, treatment of; Calvo
International courts and tribunals, standing. Clause; Calvo Doctrine
See African Commission on Human and International Monetary Fund, 396, 464
Peoples’ Rights; African Court on Human “International orga nization” (expression),
and Peoples’ Rights; European Court of coining of, 289
Human Rights; Inter-American Court International organizations: nineteenth
of Human Rights; International Court of century, 288–289; interwar period, 377;
Justice (World Court); International post–World War II, 396, 457, 458, 464.
Criminal Court; International Tribunal See also Constitutionalism; Functional-
for the Law of the Sea; Permanent Court ism; Solidarism
of International Justice (World Court) International Prize Court, proposed, 332,
International Criminal Court, 440, 354
448– 451, 464; early proposals for, 362, International Radiographic Union, 289
403; backlash against, 474– 478. See also International relations, discipline of,
Rome Statute; Rwanda Crimes Tribunal; 371–372. See also Realism: in
Yugoslavia Crimes Tribunal international-relations theory
614 Index
International Settlement of Shanghai, 317 Western international law, 314–315;

International Telegraphic Bureau, 289 extraterritoriality in, 317, 358; war-
International Trade Orga nization, crimes trials, 399– 400
proposed, 396, 411. See also World Jay Treaty, 211–212, 328, 329
Trade Orga nization Jeannin, Pierre, 204
International Tribunal for the Law of the Jellinek, Georg, 240, 242, 290, 303, 322
Sea, 446 Jenks, C. Wilfrid, 425
Invincible ignorance, 147 Jessup, Philip, 421, 427– 428, 451
Iran, 441– 442, 446. See also Persia Jhering, Rudolf von, 240
Iran–United States Claims Tribunal, 446 Jiang Zemin, 472
Iraq, 344, 360, 444. See also Mesopotamia, Jihad, 97
ancient John, King (of England), 55, 56, 57
Ireland, 129 John II (of France), 86
Isidore of Seville, 63– 65, 67, 81, 153, 154, John XXII, Pope, 55, 57, 106
155, 156, 158, 162, 163 John of Legnano, 84, 85, 89, 102
Islamic international law: contrast to John of Paris, 78
Western international law, 60, 94–95; John of Salisbury, 60
doctrinal writing, 94–97; state practice, Johnson, Samuel, 212
97–100. See also Muslim and Christian Johore, Sultan of, 151
states, relations between; Ottoman Journals, international-law, 230, 300–302,
Empire 389, 405
Islamic religion, 93, 94, 96–97. See also Judaism, 34. See also Nazis: persecution of
Islamic international law international lawyers
Isocrates, 30–31, 35 Juntas, Spanish, 112, 118. See also
Israel, 436, 443, 472 Valladolid debate
Italy: ancient, 13, 31; medieval, 51, 72–73, Jurisprudence, systematic. See Systematic
74, 75–77, 81, 87, 89, 90, 94, 105–106, jurisprudence
150, 169; modern, 280–282, 284, 285, Justice, denial of, 162–163, 202. See also
302, 306–307, 336, 348, 358, 364, 386, Aliens, treatment of; International
388–389, 390 minimum standard
Ius cogens. See Peremptory norms Justice, sense of, 2, 7, 8, 10 11–13, 34, 194,
Ius commune, 53, 60, 72–74, 91 262, 292; in ancient Greece, 27–28,
Ius gentium, 9, 79, 118, 170, 171, 379; in 30–31, 42; in ancient Rome, 32–34;
Roman law, 45– 49, 60, 62– 63, 80, 87, in medieval Europe, 77, 101; in the
128, 155–156, 171, 175; relation to nineteenth century, 265–266; in
natural law, 53, 63– 67, 69, 80, 141, 148, interwar period, 379–380; post–World
151–166; and ius commune, 72, 73–74. War II, 422, 423. See also Common
See also Customary international law; juridical conscience; Fairness, concept
Customary practices of states; Grotian of; International minimum standard;
school; Just-war doctrine, medieval; Natural law; Reciprocity
Voluntary law of nations Justinian, 47, 73. See also Roman law
Ivory Coast, 450– 451 Just-war doctrine, medieval, 53, 67–72, 81,
83, 84, 96, 151–152, 198, 202; reprisals
Jackson, Robert H., 394, 397–398 and, 88; in New World context, 93,
James I (of England), 204 108, 112, 115–117, 124, 129; contrast to
Japan, 38, 289, 324, 337, 393, 394, 404; as a Islamic law, 96–97; and crusading,
barbarian state, 311–312; reception of 101–102; in Indian Ocean context, 133;
Index 615
decline of, 144, 147–150; Grotius on, 164; Korean War, 404, 444
contrasted with mainstream positivist Korovin, Yevgeny A., 383–385, 405,
view of war, 254–255; and U.S. “non- 407– 408, 421, 451
belligerency,” 394. See also Dilatatio Koskenniemi, Martti, 459, 460, 465
theory; Just-war ideas, ancient; Just-war Kosovo crisis, 439; independence
ideas, modern declaration, 437– 438; NATO bombing,
Just-war ideas, ancient, 7, 9–10; in Rome, 473– 474
9–10, 31–34; in Sumer, 14; in China, 20, Kovalev, Sergei, 407, 408, 409, 444
23; in Greece, 27–29. See also Just-war Krylov, Serge, 401, 414, 419–420
doctrine, medieval; Just-war ideas, Kuo, 40– 41. See also Equality of states,
modern principle of; Inequality of states
Just-war ideas, modern, 191, 206–208, 210, Kushan Empire, 37–38
231, 312–313; Reagan Doctrine, 409; Kuwait crisis, 444
Vyshinsky Doctrine, 422. See also
Just-war doctrine, medieval; Just-war Lagash, 14
ideas, ancient; National liberation, Laissez faire, 205–206, 270, 456. See also
wars of Freedom of trade; Liberalism
Lammasch, Heinrich, 304, 324, 325, 336,
Kaltenborn, Carl von, 264, 293 339, 347
Kambanda, Jean, 449– 450 Lansing, Robert, 306, 347, 349, 350
Kant, Immanuel, 187–189, 199, 225, 240, La Pradelle, Albert Jouff re de, 295–296,
241. See also Neo-Kantianism 297, 303, 348, 349
Karl Ludwig (of Rhineland Palatinate), 175 Lars Tolumnius, 9, 441
Kaufmann, Erich, 239, 256, 339, 365, Las Casas, Bartolomé de, 120–123, 125
380–381, 387, 389, 415 Lasson Adolf, 238–239, 250, 347, 365
Kautilya, 16, 25 Lasswell, Harold, 377–378, 424, 428– 430,
Kellogg, Frank, 355–356, 361 431, 451, 452
Kellogg-Briand Treaty. See Pact of Paris Lateran Council: Second, 83–84, 320;
Kelsen, Hans, 367–371, 372, 376, 379, 380, Third, 83, 106; Fourth, 106
388, 389, 397–398, 398–399, 415, 418, Lausanne, Treaty of, 350, 356, 358
419, 421, 451, 456, 465. See also Vienna Lauterpacht, Hersch, 372–373, 382, 392,
School 393, 397, 398, 401, 403, 413, 414, 415,
Kennedy, David, 459, 460, 461 421– 422, 422– 423, 447, 451
Kent, James, 307 Law merchant, medieval, 80, 86–87, 201
Kenya, 450– 451, 477 “Law of nations” (expression), 45, 139, 156,
Khitan, state of, 41 158, 160, 161, 170–171, 173. See also
Kingsbury, Benedict, 458 “International Law” (expression); Ius
“Kingship,” Sumerian, 13–14, 18 gentium; Voluntary law of nations
Kipling, Rudyard, 334 Law of the sea: in medieval Europe, 80–82;
Kissinger, Henry, 471– 472 in early modern Europe, 203–205;
Klabbers, Jan, 454 conventions on, 413, 440– 441; Inter-
Klüber, Johann Ludwig, 217 national Tribunal for the, 446, 464.
Knights of St. John, 106 See also Freedom of the seas; “Free ships
Kong Futze. See Confucius make free goods” doctrine; Letters of
Koo, Wellington, 348, 392–393, 415, 451 marque; Piracy; Privateering; Prize law;
Korea, 40, 299, 325, 335; North, 344. Visit and search on the high seas; War,
See also Korean War conduct of: maritime
616 Index
Lawrence, Thomas J., 229, 347 and solidarism, 287, 293–294, 373; in the
Law-treaties, 232–234, 242, 247, 257, 384. interwar period, 344, 371–373; attacks
See also Common-will variant of on, 386, 391–393, 421–422, 461; post–
positivism; Contract-treaties; Legisla- World War II, 414, 415, 422– 424, 451,
tion, international; Treaties (general): 462– 464. See also Collective security;
contractual character of Freedom of trade; Human rights
League of Nations, 291, 343, 351–352, 354; Liberia, 475
draft ing of the Covenant, 348, 352–353; Lieber, Francis, 301, 303, 323
treaty revision, 352; sanctions, 352, 390, Lincoln, Abraham, 323
391–393; election of World Court judges Liszt, Franz von, 262, 304, 307, 346,
by, 354; and Optional Clause, 356; 347, 351
protection of minorities by, 359–361, Lithuania, 103–105
390; codification conference, 363; decline Livy (Titus Livius), 9, 29, 31, 32–33
of, 390. See also United Nations (UN) London Naval Conference, 328
Leagues of states, Chinese, 19, 23, 24 López de Tovar, Gregorio, 123–124
Lebensraum doctrine, 388–389 Lorenz, Konrad, 12
Le Fur, Louis, 378–379, 465 Lorimer, James, 262, 265, 267–269, 289,
Legalism, Chinese, 23–24, 223 293, 301, 303, 311
Legal realism, 459 Lotus case, 366, 369
Legislation, international, 300, 377; Louis VII (of France), 55
customary international law as, 153, Louis XIII (of France), 159
478; voluntary law of nations as, 187; Louis XVI (of France), 208
law-treaties as, 232–234; multilateral Louis of Bavaria, 55, 57, 78, 223
treaties as, 300, 323–324, 361–362. See Luis de la Cerda, 103, 108
also Codification of international law; Lusitania, sinking of, 357
Customary international law: legislative Luxembourg, 350
view of; Declarations: of Paris, of Lyon, Council of: First, 50–51, 55, 57–58;
London, of St. Petersburg; Geneva Second, 90
Conventions; Hague Conventions;
Human-rights conventions; Treaties, Mabillon, Jean, 190
multilateral Mably, Gabriel Bonnot, Abbé de, 193
Leibniz, Gottfried Wilhelm, 190 Machiavelli, Nicolo, 144–145, 167
Leipzig war-crimes trials, 350–351 Maine, Henry, 263
Lelong, Père, 191 Malawi, 478
Lemkin, Raphael, 402 Malta, 441
Lenin, Vladimir, 382–383 Mamiani della Rovere, Terenzio, 282–283,
Léonard, Frédéric, 190 284
LeRoux, Pierre, 285 Mancini, Pasquale, 148, 281–282, 284, 301,
Letters of marque, 89, 90, 202. See also 303, 304, 306–307, 387
Letters of reprisal; Privateering; Mandate, League of Nations, over South
Reprisals West Africa, 411
Letters of reprisal, 88–90. See also Manhattan School, 427. See also New
Reprisals Haven School
Liberalism: in the nineteenth century, 218, Manuel I (of Portugal), 132
260, 269–279, 309, 396; and natural law, Manuel Comnenos, Emperor, 98
269, 270–271, 273; and positivism, Maritime law. See Law of the sea
275–277; and the nationality school, 283; Maritime war. See War, conduct of
Index 617
Marshall Plan, 428 Mohl, Robert von, 240

Marsilius of Padua, 78–79, 223 Monism: in voluntarist variant of
Martens, Fedor Fedorovich, 257, 274, 289, positivism, 238; Kelsen on, 370, 380;
306, 308–310, 324, 325, 326, 330–331, Lauterpacht on, 373; Scelle on, 376, 454;
336, 347, 408 Kaufmann on, 380. See also Constitu-
Martens, Georg Friedrich von, 165, 191, tionalism; Dualist theories
198–201, 209–210, 212, 213, 221, 227, Moore, John Bassett, 303, 304, 306, 355,
228, 263, 264, 305, 309, 385 361, 391
Martens Clause, 325 Morgan, Lewis Henry, 311
Martin, William A. P., 313–314 Morgenthau, Hans, 389
Martin V, Pope, 105 Moser, Johann Jakob, 193–194, 199
Marx, Karl, 382 Most-favored-nation clause, 203, 272–273,
Marxism, 384, 420 414
Mazzini, Giuseppe, 280–281, 282, 284, 387 Moti. See Mohism
McCarthy, Joseph, 427 Mo-tzu. See Mohism
McDougal, Myres S., 428– 430, 452, 465 Moynier, Gustave, 301
McNair, Arnold, 372–373, 392, 401, 453 Mozi. See Mohism
Measures short of war, 334–337, 345. See Muhammad, Prophet, 95, 98
also Porter Convention; Use of force, Mullerson, Rein, 443
prohibition against Muslim and Christian states, relations
Melian Dialogue, 28 between: hostile, 96–97; pacific, 97–99,
Mencius, 22–23, 24, 26. See also 105–107; military alliances, 150–151,
Confucianism 316. See also Capitulations; Extraterrito-
Mendlovitz, Saul, 431 riality; Islamic international law
Mengzu. See Mencius Mussolini, Benito, 386
Mesopotamia, ancient, 13–15, 25
Mexico, 114, 117, 121, 275, 277, 317, 324, Namibia, 411, 435
336, 338, 357–358 Napoleon I. See Bonaparte, Napoleon
Mill, John Stuart, 275–276, 278–279, 283, Napoleonic Wars. See Wars: French
305, 314, 318, 409 Revolutionary
Miller, David Hunter, 348 Nationality, dual, 363
Milošević, Slobodan, 439, 475, 477 Nationality school, 260, 261, 279–285, 295;
Minorities, protection of: in interwar and historical school, 279; and natural
period, 359–361, 390; liberalism and, law, 279, 280, 284; criticism of, 284–285;
391; and self-determination, 436– 437 and solidarism, 287; and socialism,
Minucchi da Pratovecchio, Antonio, 108 384, 421– 422; and Nazism, 387; and
Miranda, Francisco de, 263 self-determination, 437
Mitrany, David, 377 Nationalization of property, 434, 446.
Mixed-claims commissions, 300, 328, 329; See also Calvo Clause; Calvo Doctrine
under Jay Treaty, 211–212; regarding National liberation, wars of, 422, 435;
Venezuela debts, 336; in interwar liberalism and, 278. See also Combatant
period, 357–358; post–World War II, status; Just-war ideas, modern
411, 446. See also Arbitration Nationals abroad, protection of: in the
Mixed courts, Egyptian, 316, 358–359, 433. nineteenth century, 335–337; and Hague
See also Consular jurisdiction; Codification Conference, 363; Interna-
Extraterritoriality tional Law Commission on, 414. See also
Mohism, 23 Calvo Clause; Calvo Doctrine
618 Index
Naturalist school, 170, 173–178, 180, 181, 285, 465; opposition to, 167, 175, 188;
182, 183, 184, 310 applied to states, 186, 196, 292. See also
Natural law, 7–8, 10, 219, 248, 292, 305, Solidarism
309, 310; in ancient Greece, 42– 44; Nazis: view of international law, 387–389;
organicist approach to, 43, 45, 60, 61– 62, persecution of international lawyers,
64, 265, 267, 375, 379–380; in ancient 389–390
Rome, 45, 46– 49; in medieval Europe, Necessary law of nations, 184–185, 186,
51–53, 56, 59– 63, 72, 73–74, 80, 82, 83, 187, 197, 266. See also Natural law
89, 91, 245–246; rationalist approach Necessity, 28–29, 168, 197–198, 246–247;
to, 60, 61– 63, 66, 154, 160, 174, 189, and natural law, 28, 64, 184–185, 186,
192–193, 201, 205, 209, 213, 257, 262, 187, 197, 264, 266, 292; military, 70–71,
264, 268, 322, 379, 465; and just-war 320; and humanitarian intervention, 297
doctrine, 67, 69; criticism of, 79, 209; Neo-Hegelianism, 237–239, 356, 380, 386.
in the context of the New World, 93, See also Voluntarist variant of
116, 117–118, 123, 124, 126; absence in positivism
Islamic world, 94; position of pagans in, Neo-Kantianism, 241–243, 250, 256,
101–102, 106–107; and freedom of the 261–261, 453; liberalism and, 276.
seas, 133–135; in early modern period, See also Kant, Immanuel
140–141, 144, 146–147, 149, 151–166, 179, Netherlands, 126, 148, 202, 278, 350;
180, 181, 182–189, 192–193, 196–197, 199, Southern, 207
200, 203–204, 227, 245, 256–257, 273; Neutrality, 81, 191–192, 207, 263, 264,
Hobbes’s challenge to, 167–168, 169–170, 288, 313, 314, 327, 328, 329, 350, 390; in
246; as a critical philosophy, 189–190, ancient China, 21; in ancient Greece,
195–196, 205–206, 208–209, 213, 218, 28; in medieval just-war doctrine, 71;
256–257, 258, 322; in the nineteenth in Islamic law, 96; Vattel on, 197–198;
century, 218, 228, 235, 260–269, 339; in treaties of amity and commerce,
rejection of by historical school, 237; 202–203; Scott on, 212–213; Geneva
liberalism and, 269, 270, 271; solidarism arbitration (1872), 298–299, 329, 350; in
and, 290, 293, 294, 297, 375; and Declaration of Paris, 319–320; Hague
relations with savage states, 318; and Conventions on, 327; Declaration of
Vienna School, 367, 368, 369; in London, 328; Harvard Research project
interwar period, 378–382; rejection of on, 363–364; and collective security,
by socialists, 384; post–World War II, 372, 374, 391, 392; and “non-
451, 465– 466. See also Common belligerency,” 393–394. See also
juridical conscience; Dilatatio theory; Blockade; Contraband of war
Grotian school; Historical school: Neutralization of waterways, 288. See also
hostility to natural law; International Neutrality
minimum standard; Ius commune; Ius New Deal, American, 377, 427, 428
gentium: relation to natural law; New Haven School, 428– 431, 452, 453, 458,
Naturalist school; Natural sociability, 459, 461; criticism of, 431, 461; and
principle of; Necessary law of nations; constitutionalism, 454, 457– 458; and
Necessity; Positivism (general): rejection global administrative law, 458. See also
of natural law by Lasswell, Harold
Natural-slavery theory, 35, 117–119, 121, New international economic order, 434
122 New Laws (of 1542), 119
Natural sociability, principle of, 26, 62, “New stream” thought. See Critical legal
156, 174, 181–182, 182–183, 250, 269, studies
Index 619
Nicaragua, 275, 333, 335, 409– 410, 442 Otto IV, Emperor, 55
Nicholas V, Pope, 109 Ottoman Empire, 278, 296, 324, 349,
Nicolai, Helmut, 387–388 359–360, 397; alliance with France, 150;
Niemeyer, Theodore, 302, 305 as a barbarian state, 311, 312; capitula-
Nine-power Conference, 359. See also tions, 316, 358; Armenian massacres,
Extraterritoriality 350, 397. See also Turkey, post-Ottoman
Nishi Amane, 314 Otto of Brunswick, 58
Nobel Peace Prize, 219, 291, 301, 302, Owen, Robert, 291
327, 402 Oxytocin, 12, 36, 479
“Non-belligerency,” U.S. policy of,
393–394. See also Pact of Paris Pacta sunt servanda, 168, 172, 230,
Nonintervention, 78, 264, 294, 412, 430; 235–236, 241, 264, 365, 369. See also
Mencius on, 22; Pufendorf on, 176; Common-will variant of positivism;
Vattel on, 197; in mainstream positivism, Treaties (general)
244–245, 276–277, 473; liberalism and, Pact of Paris, 361–362, 393, 394, 428, 436;
278–279, 295; nationality school and, at the Nuremberg and Tokyo Trials,
282–283, 295; criticism by solidarists, 398–399; UN Charter and, 400. See also
294–297; socialist writers on, 386; and Porter Convention
Third World, 433. See also Brezhnev Pakistan, 433, 473
Doctrine; Calvo Doctrine; Equality of Pal, Radhabinod, 399
states, principle of; Humanitarian Palacios Rubios, Juan López de, 112–113,
intervention; Reagan Doctrine 118
Nootka Sound incident, 207 Panama Canal, 288
Nuclear weapons, 343; World Court on, Papacy, Catholic, 51, 52, 55–59, 78, 103,
442– 443 106–107, 108, 110, 124, 139. See also
Nuremberg Trials, 395, 397–399, 402, 415, Canon law; Christianity
440, 448– 449, 468. See also Tokyo Trials Papal grants as basis of title, 110, 112–113,
Nys, Ernest, 262, 311 115, 123, 126, 132, 134; criticisms of, 115,
127, 133
Oaths, 7; and treaty-making, 14, 15, 18; Paris Peace Conference, 347–350
papal dispensations from, 57; and Italian Parker, Peter, 312
communes, 75; military, 150 Parochial altruism, 11–13. See also
Occupatio theory, 128, 129, 130, 133, 204 Reciprocity
Occupied Territories, Israeli, 436, 443 Parthia, 34
Occupied territory, 403 Pashukanis, E. B., 384–385
Ockham, William of. See William of Pastry War, 336
Ockham Paul III, Pope, 118–119
Oléron, Laws of, 81 Paulus, Andreas, 454
Olivart, Marquis de, 302, 304–305 Pauncefort, Julian, 288, 306, 324
Opinio juris, 252–253, 319 Paz, Matías de, 112–113
Oppenheim, Lassa, 230–231, 246, 255, 303, P.C.A. See Permanent Court of Arbitration
304, 323, 339, 347, 351 P.C.I.J. See Permanent Court of Interna-
Optional Clause, 354, 356, 410, 474 tional Justice (World Court)
Organic conception of the state, 60, 79. See Peaceful coexistence, 412
also Real personality of the state Penn, William, 130
Orga nization of American States, 407 Pepin (of France), 98
Otto I, Emperor, 53 Peremptory norms, 267, 432
620 Index
Perestroika, 443 Polybius, 33

Pérez de Cabrera, Juan, 116 Pompey (Cneius Pompeius Magnus), 469
Perfection, quest for, 184, 189, 196 Porter, Horace, 338
Permanent Court of Arbitration, 330–331, Porter Convention, 338. See also Pact of
354, 446 Paris; Use of force, prohibition against
Permanent Court of International Justice Portugal, 57, 58, 107, 108–111, 115,
(World Court), 353–357, 359, 360, 380, 126–127, 131–134, 153–154
382; United States and, 371–372. See also Positive law, 42, 154–155, 181, 223, 375;
Permanent Court of International Chinese legalism, 23–24, 223; of nations,
Justice (World Court) cases 156, 175, 181, 262–263, 263–264, 267,
Permanent Court of International Justice 322, 379–381, 403. See also Grotian
(World Court) cases, 356–357, 360–361; School; Legislation, international;
Wimbledon, 346, 356; Austro- German Positive philosophy; Positivism
Customs Union, 356–357, 380; Lotus, (general); Pragmatist writers of the
366, 369 seventeenth and eighteenth centuries;
Permanent Sugar Commission, 289 Treaties (general); Treaties, bilateral;
Persia: ancient empire, 10, 30; alliance with Treaties, multilateral
Holy Roman Empire, 150; as a barbarian Positive philosophy, 218, 222–223, 224,
state, 311–312; extraterritoriality, 359. 256. See also Positive law; Positivism
See also Iran (general)
Persistent-objector principle, 418– 419 Positivism (general): and Chinese legalism,
Peru, 92, 124–125, 306, 317, 406 23–24, 223; precursors of, 79, 146, 162,
Pessôa, Epitácio da Silva, 348, 355 165–166, 194, 200, 201; rejection of
Peters, Anne, 454 natural law by, 218, 221–222, 223–225,
Philip I (of France), 58 228, 229, 230–231, 239, 245, 248, 251,
Philip II (of France), 56 256, 257, 258; in the nineteenth century,
Philip II (of Spain), 121, 133, 148 221–259, 260–261, 261–262, 279, 294,
Philip IV (of France), 57, 58–59 299–300, 310–311, 318, 319, 334, 338,
Philip of Swabia, 58 455; mainstream, 222, 243–259,
Philippines, 110 260–261, 268, 295, 322; antirationalist
Phillimore, Robert, 307, 311 ethos of, 223, 238, 371, 416, 424; attacks
Physiocracy and physiocrats, 205–206, on, 258–259, 267–269, 309, 339, 351, 373,
270–271. See also Freedom of trade; 375–376, 382, 423, 426, 427, 465; and
Liberalism liberalism, 275–277, 278, 423– 424;
“Pie powder” courts, 87 and the historical school, 279; and
Pillet, Antoine, 262, 302, 378 the nationality school, 279–280; and
Pinochet, Augusto, 472 solidarism, 285, 286, 290, 294, 374, 424,
Piracy, 89, 335, 469, 470. See also Universal 426, 427– 428, 430, 458; and codification,
jurisdiction 321–322; and socialism, 344, 384,
Pizarro, Francisco, 92, 123, 124 385–386, 404, 408, 414, 420– 422; in
Plato, 11, 25, 26, 27, 35, 42 the interwar period, 364–366, 380–381;
Pliny, Elder, 14 and the Vienna School, 367–370; and
Plutarch, 11, 44 fascism, 386; and realism, 392;
Poland, 58, 103–105, 343, 346, 348, 356, post–World War II, 415– 422, 451– 452,
360, 380, 390 461, 473; and the Third World, 433; and
Politis, Nicolas, 303, 347–348, 349, 372, critical legal studies, 460, 461. See also
374–375 Calvo Doctrine; Common-will variant
Index 621
of positivism; Empirical variant of “Pure theory of law,” 369, 374, 376. See also
positivism; Neo-Hegelianism; Neo- Kelsen, Hans; Vienna School
Kantianism; Positive law; Positive
philosophy; Pragmatist writers of the Qaddafi, Muammar, 451, 478
seventeenth and eighteenth centuries; Quadri, Rolando, 426
Sovereignty, state; Vienna School; Quasi-sovereignty, 300, 318–319. See also
Voluntarist variant of positivism Extraterritoriality; Inequality of states
Posner, Eric, 467– 468 Quesnay, François, 270
Potter, Pitman B., 377, 421, 451, 458 Quidort, Jean. See John of Paris
Pound, Roscoe, 165 Quran, 95, 96, 98
Pradier-Fodéré, Paul, 306
Praetor peregrinus, Roman, 46 Rachel, Samuel, 171–173, 175, 305
Pragmatist writers of the seventeenth and Racial equality, and League of Nations
eighteenth centuries, 179, 182, 189–201, Covenant, 352–353
212, 213, 309; and empirical variant of Racial theories. See Nazis; Volkstaat
positivism, 221, 226, 227–228; and concept
socialist thought, 385. See also Empirical Radbruch, Gustav, 389
variant of positivism Ramses II, 36
Prescription as basis of title, 126, 133, 134 Rationalist writers of the seventeenth and
“Primitive law,” 263, 264. See also Natural eighteenth centuries, 179, 180–189,
law 189–190, 195, 290, 369, 385. See also
Principle of freedom, 249, 254–255, 366 Grotian school; Naturalist school;
Prisoners of war, 192, 299, 435; and Natural law; Pragmatist writers of the
just-war doctrine, 71; medieval practice seventeenth and eighteenth centuries
regarding, 85–86; enslavement of, 118, Rawls, John, 453
153, 157; Geneva Convention (1925), Raymond of Peñaforte, 68, 83
362; Geneva Convention (1949), 402– 403 Raymond of Toulouse, 56
Privateering, 90–91; abolition of, 320. Reagan Doctrine, 407, 409– 410
See also Letters of marque Realism, 16, 24, 28; in international-
Prize courts, 81–82, 91, 191. See also relations theory, 392, 428– 429
International Prize Court, proposed; Real personality of the state, 237, 246,
Prize law 253; criticism of, 291, 370, 375. See also
Prize law, 133, 314, 323 Voluntarist variant of positivism
Property, capture of, in war, 90, 165, Rechtsstaat theory, 240–242, 276, 387.
191–192, 207; in just-war doctrine, 70, See also Autolimitation theory
71–72, 157, 165; at sea, 202–203, 207, 328. Reciprocity, 318, 365; Confucianism and,
See also Reprisals 21–22; in Roman treaties, 31; in game
Protectorates, 318, 336. See also Inequality theory, 35–36; Kant on, 189; and
of states; Quasi-sovereignty Neo-Kantianism, 241, 242–243,
Proxenoi, 27 261–262, 276; Strupp on, 365. See also
Prussia, 177, 189, 193. See also Germany Justice, sense of
Public ser vice by international lawyers, Reconquista, 100, 113
305–308. See also Diplomatic ser vice by Recuperatio theory, 102
international lawyers; Foreign ministry Red Cross, International Committee of
legal advisers the, 320, 354, 361, 402– 403
Pufendorf, Samuel, 175–177, 181, 182–183, Refugees, 403; UN High Commissioner
184, 185, 188, 192, 197, 232, 245, 465 for, 464
622 Index
Reinsch, Paul S., 289–290, 377, 458 Rwanda Crimes Tribunal, 449– 450;
Renault, Louis, 291, 303, 306, 308–310, 324, Statute of, 464
325, 326–327, 328, 330, 347 Rymer, Thomas, 190
Reparations, German, 345, 349, 357
Reprisals: medieval, 88–90, 91; Grotius on, Safe-conducts, 192, 476. See also Aman;
162–163; restrictions on, 202; in the Cartazes
nineteenth century, 231, 334, 335–336, Sancho II (of Portugal), 57
377; in the interwar period, 345; under Sanctions: supernatural, 15; war as, 29;
the UN Charter, 400 ecclesiastical, 55–56, 106, 109, 110, 150;
Requerimiento, 113–114, 115, 116, 118, and positivism, 79, 224, 231, 232, 252,
124 253, 254, 379; and nationality school,
Res nullius, 128 282; state practice in the nineteenth
Rhodesia, Southern. See Southern century, 334–337; and League of
Rhodesia Nations, 352, 390, 391–393; Vienna
Rhodian Code, 81 School on, 368, 369; and human rights,
Ricardo, David, 271 403; and socialism, 426, 429– 430,
Richard I (of England), 86 453, 461; by UN Security Council,
Rivier, Alphonse, 230, 253, 306, 351 444– 445. See also Budapest Articles
Rolin-Jaequemyns, Édouard, 324, 325, 347, of Interpretation; “Non-belligerency,”
349, 356 U.S. policy of
Rolin-Jaequemyns, Gustav, 297, 300–301, San Martín, José de, 263
306, 307 Saragossa, Treaty of, 110
Roman Empire, 31, 53, 94. See also Holy Sauvy, Alfred, 433
Roman Empire Savage states, 261, 311–312, 318–319,
Romania, 359, 360, 406– 407 432– 433. See also Barbarian states;
Roman law, 31, 75, 89, 204; ius gentium in, Civilized states; Inequality of states
44– 49, 60, 63, 64, 65, 80, 155–156, 171, Savigny, Friedrick Carl von, 237, 265, 280.
175; and ius commune, 73; title to See also Historical school
property in, 111, 129–130; freedom of Schindler, Dietrich, 374
the seas in, 132 Schücking, Walther, 339, 348, 356, 362,
Rome, ancient, 7–8, 13. See also Roman 363, 387, 389
Empire Schwarzenberger, Georg, 392, 398, 415,
Rome Statute, 450, 464, 475, 478. See also 416, 420, 451
International Criminal Court Scotland, 58, 85. See also Great Britain
Roncaglia, Diet of, 75 Scott, James Brown, 302, 325, 327, 347, 349,
Roosevelt, Eleanor, 402 350, 381
Roosevelt, Franklin D., 302, 377, 393–394 Scott, William (Lord Stowell), 212–213,
Root, Elihu, 273, 302, 307, 337, 362–363 229
Rosas, Manuel, 228–229 Secession, 437. See also Self-determination
Rosellis, Antonio de, 108 Security Council, UN, 400, 406, 407, 411,
Rougier, Antoine, 297 454, 474; in Korean crisis, 404;
Rousseau, Jean-Jacques, 236, 237, 426 post–Cold War, 444– 445; and Yugo-
Rufinus the Canonist, 65 slavia and Rwanda Crimes Tribunals,
Ruhr, occupation of the, 345 448; and International Criminal Court,
Russia, 298. See also Soviet Union 450– 451, 475, 477– 478. See also United
Rutherforth, Thomas, 177–178 Nations (UN)
Rwanda, 442, 470 Selden, John, 134–135
Index 623
Self-defense, 107; and Mohism, 23; as part Positivism (general): mainstream;

of ius gentium, 64, 69; contrast to just Socialism; Socialist Countries
war, 69–70, 164; and natural law, Sociological approaches to international
151–152, 246–247; and Pact of Paris, law. See Solidarism
361–362; and UN Charter, 400; Sohn, Louis, 423
Brezhnev Doctrine and, 408– 409; Solidarism, 260, 285, 309; in the nine-
and nuclear weapons, 443; and teenth century, 285–297; and natural
terrorism, 443 law, 292, 293; and liberalism, 293–294;
Self-determination, 434, 435– 438. See also and positivism, 294; in the interwar
Nationality school period, 344, 373–378; and socialism,
Sepúlveda, Juan Ginés de, 121–123 383, 408– 409, 421; and Nazism, 388;
Serbia, 58, 437– 438, 445, 473– 474, 475 post–World War II, 414– 415, 424– 432,
Settlement theory. See Agricultural theory 451, 452– 461; attacks on, 421, 431. See
Sèvres, Treaty of, 350, 358 also Functionalism
Sexual violence, 463, 464 Solórzano y Pereira, Juan de, 115, 119, 126
Shafi’i School, 98 Sorel, Albert, 217, 229–230
Shanghai, International Settlement of. See Soto, Domingo de, 115, 120, 123, 152
International Settlement of Shanghai South Africa, 411, 435
Sharia, 94 Southern Rhodesia, 435
Shaw, George Bernard, 337 South West Africa, 411. See also Namibia
Shaybani, Sheikh al-, 95–96 Sovereign equality of states, principle of.
Shigemitsu Mamoru, 400 See Equality of states, principle of;
Shotwell, James, 372 Positivism (general): mainstream;
Shultz, George P., 409 Sovereignty, state
Siam, 306, 311, 317, 324, 358 Sovereignty (general), 343; in Chinese
Sierra Leone, 475 legalist theory, 23–24; of Holy Roman
Silent trading, 36 emperors, 53–54; over the seas, 82,
Silesia, conquest of, 177. See also Upper 133–135, 204–205; of infidels over
Silesia Christians, 101, 104, 251; over New
Simma, Bruno, 453, 454 World possessions, 111–131; Bodin on,
Siyar, 95–96 145–147; Hobbes on, 168–169. See also
Slavery, 87, 109, 114, 183, 463; as ius Quasi-sovereignty; Sovereignty, state;
gentium, 47, 148; ban on, as peremptory Territorial waters; Title to territory,
norm, 267. See also Natural-slavery legal bases of
theory; Slave trading, abolition of Sovereignty, state, 144, 343 344, 412;
Slave trading, abolition of, 321 restraints on, 146, 240–241, 273, 274,
Smith, Adam, 269, 271 337, 423; in mainstream positivism, 176,
Socialism, 286, 291–292, 430, 452. See also 244–245, 249, 251, 338, 418, 451– 452;
Cold War; Marxism; Socialist countries; Vattel on, 197, 312; neo-Hegelian view
Socialist views of international law of, 237–238; opposition to, 285, 293,
Socialist countries, 344, 364, 405, 406– 407, 294–297, 370, 374–375, 399, 407– 410,
415, 433– 434, 435. See also Brezhnev 421, 425, 427; solidarism and, 290; Third
Doctrine; Cold War; Socialism; Socialist World view of, 326, 433– 434, 471; over
views of international law; Soviet Union airspace, 361; in socialist thought, 384,
Socialist views of international law, 386, 407– 409, 420, 443– 444; New Haven
382–386, 404, 407– 409, 412, 415, School and, 430. See also Autolimitation
419– 422, 443– 444. See also Cold War; theory; Brezhnev Doctrine; Calvo
624 Index
Sovereignty, state (continued) Sweden, 139, 159, 175, 316, 356

Doctrine; Equality of states, principle of; Switzerland, 207, 289, 326
Fundamental rights of states; Positivism Systematic jurisprudence, 140–141, 159,
(general): mainstream; Reagan 205, 322. See also Natural law
Doctrine; Rechtsstaat theory
Soviet Union, 344, 363, 397, 400, 403, 404, Tactics, prohibited: employment of
405, 407, 408– 409, 419– 420, 440, assassins, 198; launching projectiles
443– 444, 452. See also Brezhnev from balloons, 325, 327
Doctrine; Cold War; Socialist countries; Taiwan expedition, 315
Socialist views of international law Takahashi Sakuyei, 315
Spanish Sahara, 436 Tanzania, 447, 449, 473
Spazio vitale doctrine, 388–389 Taylor, Charles, 475
Spencer, Herbert, 11 Tehran hostages incident, 441– 442, 446
Spheres of influence, 319, 407 Teilhard de Chardin, Pierre, 465– 466
Spirito, Ugo, 386 Territorial waters: in medieval Europe,
Srebrenica massacre, 445, 449. See also 82; in early modern Europe, 203–205;
Crimes against humanity; Genocide Chinese, 313; Institute of International
Sri Lanka. See Ceylon Law on, 323; in interwar period, 363;
Stalin, Josef, 395, 412 post–World War II, 413, 441
Stalinism, 385, 403 Territory, title to. See Title to territory,
State responsibility, law of, 414 legal bases of
State sovereignty. See Sovereignty, state Terrorism, 443, 469; draft convention on
Stein, Lorenz von, 289, 290, 308, 458 (1937), 362. See also Anarchism
Stimson, Henry, 393, 397 Teutonic Knights, 103–105
Stimson Doctrine, 393 Textor, Johann Wolfgang, 173, 199
Stoics and stoicism, 42– 44, 45, 46, 60, Thaddeus of Suessa, 50
61– 62, 64, 265, 267, 268, 465 Thailand. See Siam
Stone, Julius, 425 Theodore, Emperor, 336–337
Stowell, Ellery, 325–326 Theodosius I, Emperor, 55
Stowell, Lord. See Scott, William Thucydides, 27–28
Strupp, Karl, 302, 365–366, 389 Tibet, 40, 472
St.-Simon, Henri de, 286–287, 289, 297 Title to territory, legal bases of: papal
St.-Simonism, 288, 289, 377, 424, 427, 458 grants, 112–115; just wars, 115–117;
Suárez, Francisco, 141, 144, 147, 153–158, natural-slavery theory, 117–110;
159, 160, 161, 162, 163–164, 165, 166, 172, Dilatatio theory, 119–124; humanitarian
186, 247–248, 381 intervention, 124–125; prescription,
Substitution theory (of ius gentium), 63, 126, 133, 134; conquest, 129; cession,
65– 66, 66– 67, 148, 152, 154, 185–186. 129–131
See also Dualist theories: of ius gentium; Tobar, Carlos R., 274–275, 348. See also
Emanationist theory (of ius gentium) Tobar Doctrine
Sudan, 451, 475 Tobar Doctrine, 275, 277–278, 333
Suez Canal, 288 Tokyo Trials, 399– 400, 402, 440, 468. See
Sumer, 13–14 also Nuremberg Trials
Supreme state (of Wolff ), 186–187, 188, 197, Toledo, Francisco de, 124–125
249 Tomke, Peter, 440
Suzerainty, 318–319. See also Quasi- Tomuschat, Christian, 454
sovereignty Tönnies, Ferdinand, 272
Index 625
Tordesillas, Treaty of, 110 Treaties, multilateral, 181, 218, 273,

Trachtman, Joel P., 454 288–289, 300, 319–321, 327, 328, 333,
Trainin, A. N., 397 353, 356, 357, 358–359, 361, 397, 412; in
Traité-contrat. See Contract-treaties pre-imperial China, 18, 19; reservations
Traité-loi. See Law-treaties to, 413– 414. See also Geneva Conven-
Transnational law, concept of, 428. See also tions; Hague Conventions; Human-rights
Ius commune; Ius gentium: in Roman conventions; Lausanne, Treaty of;
law; Law merchant, medieval Legislation, international; Minorities,
Treaties (general), 264, 268–269, 314; protection of; Pact of Paris; Sèvres,
making of, 2, 7, 14–15, 18, 25, 31, 36, 40; Treaty of; Treaties (general); UN Charter;
breaches of, 16, 24, 33, 56, 174, 207–208, Versailles, Treaty of; Westphalia,
334, 346, 356–357, 359, 360, 398; as part Peace of
of ius gentium, 64; in Islamic law, 96, 98; Tribute: in Chinese leagues, 19, 22–23; in
in Asia, 131; binding character of, 146, Muslim-infidel relations, 98–99. See also
172, 209, 350; as the basis of interna- Tribute system, Chinese
tional law, 169–170, 192–193, 199–200, Tribute system, Chinese, 39– 41
213, 231–236, 239, 257, 261, 300, 319, Triepel, Heinrich, 232–236 passim, 303,
380, 382, 383–384, 385, 453, 454– 455; 365
Naturalist school view of, 174, 176; Truces, 64, 84–85; Truce of God, 83;
contractual character of, 176, 185, 230, breaches of, 92; in Islamic law, 98, 99;
239, 247–248, 266, 268–269, 315, between Netherlands and Spain, 202
454– 455, 476; collections of, 190–191, Tullus Hostilius, 31–32
198, 352, 481; repudiation of, 207, 231, Tunisia, 105–106, 441, 464
239, 298, 299, 382–383, 390; and Tunkin, Grigory, 408, 420
peremptory norms, 266–267, 432; Turgot, A. R. J., 270
unequal, 313; revision of, 352, 359; Turkey, post-Ottoman, 350, 356, 366.
registration of, 352, 401; interpretation See also Ottoman Empire
of, 356, 425; codification of the law of, Twiss, Travers, 312
363, 413– 414. See also Contract-treaties;
Law-treaties; Legislation, international; Uganda, 442, 450, 473, 476– 477
Pacta sunt servanda; Treaties, bilateral; Ulfstein, Geir, 454
Treaties, multilateral Ulpian, 47, 61, 62– 63, 64, 66, 101
Treaties, bilateral: peace, 14, 36–37, 41, 56, Umma, 14
64, 86, 96, 159, 192, 202, 306, 312, 336, Unanimity of states: at the Hague Peace
350, 352, 357, 359–360, 406– 407; Conferences, 324, 327; at the League of
friendship, 14, 40, 98; alliance, 31; Nations, 360
commercial, 87, 90, 105–106, 150, UN Charter, 400– 401, 405, 406, 407, 420,
272–273; networks of, 181, 200, 201, 203, 422, 434, 436, 442, 473. See also United
251, 273; amity and commerce, 201–203, Nations (UN)
211–212, 273, 328; arbitration, 298–299, Unequal treaties. See Treaties (general):
329–330; unequal, 313; extraterritorial- unequal
ity, 315–317, 358–359, 433. See also UNESCO, 464
Aloaçoves, Treaty of; Capitulations; United Kingdom. See Great Britain
Cobden-Chevalier Treaty; Contract- United Nations (UN), 344, 394, 400– 401;
treaties; Extraterritoriality; Jay Treaty; ineffectiveness of, 395–396, 401– 404;
Tordesillas, Treaty of; Treaties (general); General Assembly, 401, 402, 403, 404,
Washington, Treaty of 411, 412, 422, 436, 437; enforcement
626 Index
United Nations (UN) (continued) Vázquez y Menchaca, Ferdinando, 133,

action by, 404, 444– 445; membership 134
crisis, 405– 407; expenses of, 411; Venezuela, 277, 307–308, 336, 338
secretariat, 413. See also International Venizelos, Eleuthérios, 347–348
Court of Justice (World Court); Verdross, Alfred, 367, 379–380, 401, 415,
International Law Commission; Security 421, 453
Council, UN; UN Charter Vereinbarung. See Law-treaties
United States, 207, 275, 288, 307, 324, 330, Vereschetin, V. S., 443
333, 355, 361, 363, 377, 393–394, 397, Versailles, Treaty of, 345, 346, 349–350,
400, 403– 404, 411, 427, 444; and 357
mixed-claims commissions, 211–212, Vertrag. See Contract-treaties
298–299, 329, 336, 357–358, 446; and Veto, in UN Security Council, 400, 404,
Caroline incident, 246–247; armed 406, 474
expeditions by, 299, 335, 337; Vienna, Congress of, 217, 288, 321, 347
international-law education in, 304–305, Vienna School, 201, 367–371, 379; Nazi
431; and extraterritoriality, 316–317, 433; opposition to, 289, 388; and solidarism,
World Court cases involving, 409– 410, 374, 376, 424, 429, 456; socialist
441– 442; and the International opposition to, 421
Criminal Court, 475– 476. See also Cold Virally, Michel, 418, 419
War; Reagan Doctrine Visit and search on the high seas, 321
Universal Declaration of Human Rights, Vissering, Simon, 314
402, 403, 456 Vitoria, Francisco de, 92–93, 115, 116–117,
Universal jurisdiction: of popes, 56, 57; of 119–120, 122, 123, 124, 127, 133, 147,
states, 468– 472, 473 152–153, 156, 164, 256–257, 258, 381;
Universal Postal Union, 288–289 likeness of, 381
UN War Crimes Commission, 398 Vives, Luis de, 93
Upper Silesia, 360, 390 Vladimiri, Paul, 104–105
Urbach, John, 104 Volkstaat concept, 387–388
Urban II, Pope, 57–58, 102 Vollenhoven, Cornelius van, 462
Urban V, Pope, 106 Voluntarist variant of positivism, 226,
Usage, 155, 202, 212, 228, 366; contrasted 236–243, 246, 247, 249, 250, 252–253,
with customary law, 173, 231, 252–253. 254, 257, 261, 268, 276, 285, 291, 294,
See also Customary international law 365, 370, 375–376, 380, 384; post–World
Use of force, prohibition against, 407, 412, War II, 416, 417– 419, 420. See also
435; in UN Charter, 400, 434; violations Common-will variant of positivism;
of, 435. See also Aggression: as an Empirical variant of positivism;
international crime; Crimes against the Positivism (general)
peace; Pact of Paris; Porter Convention Voluntary law of nations: Grotian
U.S.S.R. See Soviet Union conception of, 156, 160–166, 170,
172–173, 180, 181–182, 191–192;
Valladolid debate, 119–124. See also criticism of Grotian conception,
Dilatatio theory; Juntas, Spanish 177; Wolff ’s conception of, 185–187,
Valverde, Vicente de, 92, 93, 114 196–197, 198, 379. See also Customary
Vattel, Emmerich de, 1–2, 129, 182, 188, international law; Grotian school; Ius
194–198, 199, 200, 212, 218, 228, 245, gentium
256–257, 258, 263, 264, 305, 312, 320, Vultures, Stele of the, 14
469 Vyshinsky, Doctrine, 422
Index 627
Walz, Gustav Adolf, 388, 389 399; in Yugoslavia civil wars, 439, 448;
War, conduct of: in ancient India, 16–17; International Criminal Court and, 450;
in ancient China, 20–21; in ancient sexual violence, 463, 464; universal
Greece, 27–29, 35; in medieval Europe, jurisdiction over, 469. See also Aggres-
73, 83–86; in the Islamic world, 95, 96; sion: as an international crime; Crimes
in early modern Europe, 149–150; against humanity; Crimes against the
Grotius on, 159, 165; Pufendorf on, peace; Geneva Conventions; Genocide;
176–177; pragmatist writers on, 191–192; War, conduct of
Vattel on, 198; Grégoire on, 209; Ward, Robert, 209–210
maritime, 212–213; Lieber Code, 303, Wars: Persian, 10; Peloponnesian, 27–29;
323; Declaration of St. Petersburg, 320; Thirty Years War, 139, 143; French
Institute of International Law codes, Revolutionary, 207–208, 210, 211–212,
323; Brussels projet, 323, 324–325; 222; Franco-Prussian, 298, 314;
Hague Rules, 324–325, 327; Hague Crimean, 299, 312, 319; American Civil
declarations and Conventions concern- War, 299, 329; World War I, 300, 302,
ing, 325, 327–328; chemical weapons, 339, 349–351; Opium, 312–313, 316, 335;
325, 361; aerial, 361; nuclear weapons, Sino-Japanese, 314–315, 317; Russo-
442– 443. See also Geneva Conventions; Japanese, 315; World War II, 344,
Nuremberg Trials; Tactics, prohibited; 346–347, 393–394, 400; Korean, 404,
Tokyo Trials; War crimes; Weapons, 444. See also Civil wars; Kuwait crisis
prohibited Washington, George, 1–2, 196, 271–272
War, declarations of, 32–33, 84, 149, Washington, Treaty of, 298–299, 329
164–165, 171, 208, 315, 336; Hague Washington Rules, 299, 329
Convention on, 327 Weapons, prohibited: poisoned weapons,
War, legal conceptions of: in Sumer, 14; 17, 165, 198; barbed weapons, 17;
in ancient China, 20; in ancient Greece, crossbows, 83–84, 320; exploding
26, 27; ius gentium and, 48, 64, 148; in bullets, 320; expanding (dum dum)
medieval Europe, 51, 56–57, 58–59; in bullets, 325; asphyxiating gases, 325, 361
Islamic world, 96–97, 98, 99; Grotius Weber, Johann Wolfgang. See Textor,
on, 163–165; anarchy as, 169, 188; in Johann Wolfgang
mainstream positivism, 253–256, 361, Webster, Daniel, 219, 247
455. See also Just-war doctrine, Weil, Prosper, 417– 418, 419, 451
medieval; Just-war ideas, ancient; Wells, H. G., 343, 430
Just-war ideas, modern; Measures short West, Benjamin, 130
of war; Self-defense Western Sahara. See Spanish Sahara
War, measures short of. See Measures short Westlake, John, 229, 246, 300–301, 303,
of war 304, 305, 307, 330, 347, 351
War, resort to, in League of Nations Westphalia, Peace of, 139–140, 188, 207, 347
Covenant, 352. See also Aggression; Wharton, Francis, 302–303, 304
Just-war doctrine, medieval; Just-war Wheaton, Henry, 228, 246, 263, 304, 306,
ideas, ancient; Just-war ideas, modern; 307; translations of, 229, 313, 314
Measures short of war; Pact of Paris; Wildman, Richard, 228
Use of force, prohibition against; War, William II (of Germany), 239, 306, 350
declarations of William of Ockham, 222, 223
War crimes, 402, 472; in ancient Greece, Wilson, Edward O., 12
28–29; aggression as, 349; in World War Wilson, Woodrow, 275, 347, 352–353, 371,
I, 349–351; in World War II, 397, 398, 372
628 Index
Wimbledon case, 346, 356 World Health Orga nization, 464

Winiarski, Bohdan, 348 World Order Models Project (WOMP),
Wisby, Laws of, 81 431, 459
Wlodkowic. See Vladimiri, Paul World Trade Orga nization, 446, 468
Wolff, Christian, 183–187, 188, 189, 193–194, Wright, Quincy, 372, 392, 394, 398, 399,
195, 196, 197, 199, 201, 228, 245, 248, 415, 422– 423, 451, 453– 454
249, 262, 266, 369, 371, 379, 465
Women, position of, 321, 447, 462; in the Yankov, Alexander, 420
international-law profession, 464. See Yearbooks, international-law, 302
also Feminism “Young Italy,” 280
Woolsey, Theodore Dwight, 303, 304, 311, Yugoslavia Crimes Tribunal, 439, 448– 449,
339; translation of, 313–314 450; Statute of, 464
World Bank, 396, 446
World Court. See International Court of Zachaeus. See Zouche, Richard
Justice; Permanent Court of Interna- Zacharius, Pope, 57
tional Justice Zimbabwe. See Southern Rhodesia
World government, 44; contrast to Zollverein, 287
international law, 74, 169–170, 180, 242; Zorn, Albert, 239
opposition to, 188–189, 244, 420, 421, Zorn, Philipp, 239, 306, 324
431. See also Constitutionalism; Global Zoroastrianism, 94
administrative law; Neo-Kantianism; Zouche, Richard, 171, 191–192, 199, 210,
Solidarism; Sovereignty, state 227, 309, 385

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Justice among Nations

Justice among Nations

An excerpt from Immanuel Kant, “Theory and Practice,” in Kant, Political

Library of Congress Cataloging-in-Publication Data

who made so many things possible.

1. Doing Justice to Others 9

4. Putting Nature and Nations Asunder 143

6. Breaking with the Past 221

9. Dreams Born and Shattered 345

I am especially grateful for the hospitality of George Washington University

[J]ust as in one state or province law is introduced by custom,

It would be a great error to think of international law as a single, unitary

Doing Justice to Others

he abduction of Helen of Troy was the archetypal example of a

In the beginning, human political horizons—and hence loyalties—were in-

simultaneously hostile to outsiders. Konrad Lorenz, the noted Austrian

logical makeup may incline us in certain antisocial directions, there seems

Mesopotamia and the Middle East

government within those cities. As early as 4000 bc, there is an example of

warfare were not a preoccupation. On the contrary, Kautilya explicitly ap-

China in the Warring States Era

An interesting feature of China’s Warring States period was the forma-

Diplomatic practice was an area that received a great deal of attention

by benevolence and harmony. Fourth and fi nally, the Confucians had

tions with non-Chinese peoples—power appears to have counted for a great

It is well, at this point, to take note of another of Aristotle’s ideas that

A major contribution made by the Greeks in the field of international re-

forswore policies of imperialism, coercion, and intervention into the affairs

It was inevitably more of a challenge for lawlike behavior to spread outside

India and Buddhism

China and the Wider World

conjunction with diplomatic visits. Viewed from the Chinese standpoint,

Greece and the Birth of Natural Law

On a slightly more down-to-earth note, some stoic writers thought that

Rome and the Ius gentium

There was some divergence of opinion among Roman writers as to

Keeping Kings in Check

remarkable scene took place in the city of Lyon, in France, on July

independent sovereign states. Far from deploring the juridical poverty of

than either church or empire. In its role as the foundation of international

kingdom of France under an interdict in 1200, the Duchy of Normandy in

performed the most dramatic deposition of all—that of Frederick II in 1245

Natural Law—and Its Auxiliaries

A New Natural Law

between political entities. It was primarily about the conduct of ordinary

The Role of the Ius gentium

of course, to be in the sphere of international law. Perhaps Isidore could be

ethic of absolute pacifism. The solution was provided, at least in outline

The Ius commune

Challenges to the medieval universalist vision took place at various levels.

The Italian Communes

been characterized as “the first legal expression of the concept of territorial

The Aristotelian Challenge

wrote a major work of political theory, Defensor pacis (The Defender of

which, although strictly applicable only to restricted groups of persons,

The Conduct of Wars

weapons against Christians. Their use continued to be allowed against in-

The Law Merchant

trading—from shipping and insurance, to pledging and pawning and de-

The reprisal process was subject to close judicial scrutiny. In requesting

Privateering was subject to some obvious abuses—chiefly to the risk that

New Worlds and

ne day in 1534, the Dominican monastery of San Esteban in Sala-