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Max Planck Encyclopedia of Public International Law [MPEPIL]

History of International Law, 1648 to 1815

Stephan Verosta

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 21 May 2019

Subject(s):
1648-1815

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

After the Thirty Years’ War, the 1648 Peace of Westphalia (Westphalia, Peace of [1648]; Peace Treaty between the Holy Roman Emperor and the King of France and their respective allies [signed 24 October 1648] [1648] 1 CTS 119) created a new political order in Europe which ended with the defeat of France after 20 years of war—1792 to 1813. Large areas of America which had already been incorporated in the European colonial empires were involved, together with their native populations, in the conflicts between their European mother countries (Colonialism). In 1815 the Vienna Congress (1815) formulated a new political order.

The period 1648 to 1815, however, also saw the consolidation of relations between European States and numerous States in South and South-East Asia and the first tentative moves towards relations with China and Japan. Numerous international treaties were signed on a basis of equality between Asian and European States (States, Sovereign Equality; see also Treaties, Unequal). Assuming the desirability of aiming at a universal view of the history of international law, the question may well be asked what significance the date 1648 has for the States of the Near East, South and South-East Asia, and the Far East within their political regions. For the Ottoman Empire the Thirty Years’ War brought a weakening of the position of the Western Emperor, which shortly after 1648 motivated the former to prepare attacks on Austria and Vienna. In India the Hindus, under the leadership of the Marathas, began in 1650 to resist the domination of the Moghul Emperors. In China, the Manchus came to power in 1644 and ruled as the Ching dynasty until 1911. The date 1650 therefore had both political and international law significance not only for Europe, but also for other regions of the world (see also International Law, Regional Developments: Africa; International Law, Regional Developments: East Asia; International Law, Regional Developments: Islam; International Law, Regional Developments: Latin America; International Law, Regional Developments: South and South-East Asia).

B.  Europe

1.  The European System of States Created by the Peace of Westphalia

In the Thirty Years’ War—1618 to 1648—the bloody wars of religion which had racked Europe for a century reached their climax (see also Religion or Belief, Freedom of, International Protection). The so-called Holy Roman Empire, whose princes had since 1452 consistently elected a Habsburg as German King and Roman Emperor, was after the reformation in reality only a confederation of States with certain federal features (Confederations of States). The Protestant members waged war against the emperor and formed alliances with foreign States. Other States, notably Sweden and France, intervened massively with both diplomatic and military means in the Thirty Years’ War; the lengthy peace negotiations from 1644 to 1648 eventually led to the convening of a conference of States. Peace was formally concluded in two treaties signed on 24 October 1648 by the emperor, the electors, princes and estates of the empire on the one hand and by France—in Münster—and by Sweden—in Osnabrück—on the other hand. However, the Treaty of Osnabrück, according to Art. XVII, applied also to France, Spain, Great Britain, Denmark with Norway and adjoining territories including Schleswig, Poland, Portugal, the Duchy of Lorraine, the Republic of Venice, Russia, the United Provinces of the Netherlands—whose independence from Spain was now also recognized—Switzerland, the Grison Union, and the princedom of Transylvania. The peace treaties of Münster and Osnabrück may thus be described as a European collective agreement such as later became customary for resolving political and international law differences after times of war and disturbance (Berlin Congress [1878]; Paris Peace Treaty [1856]; Peace Treaties after World War I ; Vienna Congress [1815]).

Through the Peace of Westphalia the members of the Holy Roman Empire—numbering around 300-achieved a status approaching sovereignty; they were granted the right to enter into alliances with foreign powers as long as these were not directed against the empire and the emperor. On the other hand, any foreign policy initiatives by the emperor on behalf of the empire required the consent of the Member States and the political power of the empire was drastically reduced. The 13 Swiss cantons, who had not participated in the imperial diets since 1500, were recognized in the Peace of Westphalia as a confederation and were determined to remain aloof from all the conflicts of the European Great Powers. After the Peace of Westphalia and the Treaty of the Pyrenees between France and Spain (Treaty between France and Spain [signed 7 November 1659] [1659] 5 CTS 325), France became the major power on the European continent, partly also because of its intellectual and cultural achievements. In international relations French displaced Latin as the language of diplomacy. In the confessional field recognition was again accorded to the Religious Peace of Augsburg (1555) (E Reich [ed] Select Documents [P S King & Co London 1905] 230–32] for the whole empire and extended to the Calvinists. As regards free religious observance the status as of 1 January 1624 was decisive. The princes retained the power, bestowed on them in 1555, to decide on the confession of their subjects but dissenters were granted freedom of conscience and the protection of their civil rights, ie human rights. The expropriation without compensation of the monasteries and other church property to the benefit of Protestant princes was confirmed as long as it had taken place before 1 January 1624. The Holy See condemned these provisions. The Peace of Westphalia marked the end of the wars of religion, but confessional antagonisms affected domestic and foreign policies for many years to come. After the Puritan Revolution in England, dissenters were persecuted, most savagely in Catholic Ireland—massacres of Drogheda and Wexford—and Cromwell insisted on the conviction and execution of the Stuart King Charles I (1649) irrespective of the fact that he was head of the Anglican Church. The Peace of Westphalia also provided for pardon and amnesty for all hostile activities since the beginning of the war (Art. II Peace Treaties of Münster and Osnabrück; Amnesties).

All participants in the Peace of Westphalia were placed under the obligation to protect and defend its provisions against all others. It was incumbent on a wronged party to warn a transgressor first, but the matter itself was to be referred to peaceful settlement or to a legal adjudication (Art. CXXIII Treaty of Münster, identical wording in Art. XVII Treaty of Osnabrück; Peaceful Settlement of International Disputes). If the conflict had not been settled by either of these methods within three years, all the parties to the treaties were to assist the injured party ‘in counsel and force to repel the injury’ (Art. CXXIV, Art. XVII). The following rules which were to remain valid throughout the period 1648 to 1815 were contained in the terms of the Peace of Westphalia to govern the cardinal problems of international relations and international law (International Relations, Principal Theories): treaties were to be observed (Pacta sunt servanda); a conflict concerning the new peace order was to be settled by peaceful means, ie negotiation, conciliation, and mediation or arbitration; the injured State could take up arms against the transgressor in order to restore its rights and was to be accorded the military support of the other treaty partners in such a justified war to obtain redress; a war initiated without just cause was illegal and the Contracting States were to confront the disturber of the peace jointly. These principles conformed with the then prevailing doctrine of the bellum iustum, whereby iustum does not mean just in the moral sense but legal according to the law of nations and treaties in force. The policy of even absolute and self-confident monarchs always included alleged legal claims to certain areas which they wished to acquire, but in the European system of States sovereigns had no automatic right to wage war. If the legal claim was seen as a mere pretext, interested States intervened as mediators, often quite forcefully. Since a collective intervention of all the Contracting States, envisaged in the Peace of Westphalia as a guarantee of the status quo, never proved possible in practice, a tendency towards ever-changing alliances and wars between the absolute monarchs developed. Nevertheless, as far as Europe was concerned, the period between 1648 and 1815 was uniform both politically and in its international law aspects. The Peace Treaty of Paris of 10 February 1763 between France, Great Britain and Spain (‘Definitive Treaty of Peace between France, Great Britain and Spain’ [signed 10 February 1763] [1763] 42 CTS 279) still referred specifically to the 1648 treaties, and to 16 subsequent treaties, which it reconfirmed and took as its basis.

2.  Politics and International Law

The system established by the Peace of Westphalia remained substantially unchanged until the wars of the French Revolution and the Napoleonic Wars. In the following account only those events are featured which affected European subjects of international law as such in relation to their national territory, or which had a direct influence on the development of international law. At the same time, certain domestic political developments cannot be ignored.

The predominant foreign policy maxim in Europe was the political balance of power, since the politics of foreign policy are also always power politics. The term was used for the first time in the 16th century by Francesco Guicciardini and referred to the regional balance of power between the States of the Italian peninsula. According to the Peace Treaty of Utrecht (Treaty of Peace and Amity between France and the Netherlands [signed 13 July 1713] [1713] 28 CTS 37) the peace and repose of Christianity should be achieved by iustum potentiae aequilibrium (just balance of power), which would provide the best and soundest basis for mutual friendship and lasting understanding. In 1806 Friedrich Gentz defined the European balance of power as ‘an organisation of separately existing States of which no single one has the ability to impair the independence or the basic rights of the others without meeting with effective resistance and thus having to risk danger for itself’ (F Gentz Gesammelte Schriften vol IV [Olms-Weidmann 1997] 1). The political balance of power of a particular region is not a rule of international law, but it is one of the political and sociological bases of international law in the State system of a given region and at the same time a maxim of foreign policy (Sociological Theories of International Law).

A shift in the power relationships affecting an established balance of power does not, however, provide the legal justification for a preventative war. Here, Grotius wrote that, according to international law, it was not ‘right to take up arms in order to weaken a power which, if it becomes too great, may be a source of danger’ (H Grotius De iure belli ac pacis, vol II, ch l, sec XVII). As there is no such thing as perfect security in the human sphere, the art of foreign policy consists, inter alia, in an early recognition of a shift in the balance which could endanger the security of other States and countering it with appropriate means, such as alliances, fortifications, etc. A war justifiable according to the prevailing rules of international law could only be waged after specifying the legal ground.

Between 1667 and 1697 Louis XIV of France based the occupation of Flemish towns and the Franche Comté of Burgundy on hereditary rights and of towns in Alsace and Breisgau on decisions of the Chambers of Reunion (Occupation, Belligerent). These legal titles were disputed by Britain and Holland and the alliance of the two countries caused France to suffer decisive defeat in the naval battle of 1692. Nevertheless, in the treaties of Nimeguen (Peace between the Empire, Austria and France [signed 26 January (5 February) 1697] [1697] 15 CTS 1) and Ryswick (Treaty of Peace between France and The Netherlands [signed 20 September 1697] [1697] 21 CTS 347) some of the French territorial claims were acknowledged. On the basis of the so-called Barrier Treaties of 29 October 1709 (Treaty between Great Britain and the Netherlands for Settling a Barrier against France [signed 29 October 1709] [1709] 26 CTS 425), 29 January 1712 (Treaty of Guarantee of the Barrier between Great Britain and the Netherlands [signed 29, 30 January 1712] [1712] 27 CTS 373) and 15 November 1715 (Treaty between the Emperor and Spain and Great Britain and the Netherlands for a Barrier for the Netherlands [signed 15 November 1715] [1715] 29 CTS 333), Holland was, however, entrusted with securing the southern Netherlands (Belgium) against further incursions by France; under these treaties Holland had to keep garrisons in certain fortresses in Belgium, which was ruled until 1714 by Spain, and from then until 1791 by Austria.

10  In accordance with the principle of the political balance of power, the European States prevented the union of France and Spain under the Bourbon dynasty at the end of the Spanish war of succession (Peace of Utrecht [1713]); in the subsequent Peace of Rastatt (Treaty of Peace between the Emperor and Spain, and France [signed 7 March 1714] [1714] 29 CTS 1) Austria was given possession of former Spanish territory in the southern Netherlands (Belgium), Milan, Naples, and Sardinia. In 1720, Austria ceded Sardinia, in exchange for Sicily, to the Duke of Piedmont, who then adopted the title of King of Sardinia. In the Peace of Vienna (Preliminaries of Peace between the Emperor and France [signed 3 October 1735] [1735] 34 CTS 283) a lateral branch of the Bourbon family assumed sovereignty over Naples and Sicily—the so-called Kingdom of the two Sicilies; Britain acquired Gibraltar.

11  Attempts by Sweden in the Great Northern War to extend its power in northern and eastern Europe ended, after several major victories, in the defeat of its King, Charles XII. In the Peace of Nystad (Treaty of Peace between Russia and Sweden [signed 30 August 1721] [1721] 31 CTS 339) the Baltic countries were assigned to Russia. Tsar Peter I, who carried out many significant internal reforms and founded Petersburg in 1703, raised Russia to the status of a major power.

12  In the Austrian war of succession, Friedrich II of Prussia conquered Silesia in 1741, which had previously belonged to Austria (Conquest); the claim to legal title was seen throughout Europe to be a mere pretext for a Prussian war of aggression. It was a clear infringement of the rules of international law and the provisions of the Peace of Westphalia. Nevertheless, after two further wars, Prussia was successful in gaining recognition of its territorial expansion in 1763. The Seven Years’ War between France and England, in which several other European States participated, involved the colonies of the two powers in America and their settlements in India (Decolonization, British Territories; Decolonization, French Territories). In the Peace of Paris France lost almost all its American colonies to England and Spain and was driven almost completely from the Indian subcontinent.

13  In the still-feudal oligarchy of Poland, the free election of its kings by the nobility had led to constant interventions on the part of its neighbours and France. King Stanislav August Poniatovski, who was supported by Russia, was only able to overcome the resistance of his rivals with the aid of Russian troops. Subsequently, Poland was forced to cede large tracts of territory to Russia, Prussia and Austria—the so-called first partition of Poland 1772 (Cession). This constituted an infringement of the rules of international law by the three conservative monarchies. In the course of the Wars of the French Revolution, Russia and Prussia agreed in 1793 on further territorial acquisitions in Poland—the so-called second partition—and, after heroic resistance by Poles who sympathized with the French Revolution, the remainder of Poland was divided among the three neighbouring powers. The three conservative monarchs now numbered millions of Poles among their subjects and had become direct neighbours.

14  After the collapse of Cromwell’s dictatorship in 1660, Charles II approved the English Parliament’s Habeas Corpus Act which secured the personal freedom of every British subject. After the Glorious Revolution, William III approved the Bill of Rights which confirmed all the rights which Parliament had previously struggled to achieve. The parliamentary monarchy in Great Britain with its division of powers became a model for the rest of the civilized world. These principles were elaborated by John Locke (1632–1704) in his writings on political philosophy, which exerted a strong influence on the developing Enlightenment movement in Europe, especially in France.

15  Economic commerce with the territories and States of Africa and India was promoted in England, the Netherlands and France by privileged trading companies which, on the basis of their concessions, also performed functions of State in the overseas territories (Overseas Territories, Australia, France, Netherlands, New Zealand, United Kingdom, United States of America). As private companies in the age of mercantilism and growing capitalism, they aimed at the rapid acquisition of profits. This encouraged their agents to adopt ruthless measures towards their European competitors and later also within the colonies themselves, thereby also enabling them to amass great personal wealth. The activities of the East India Company were debated in the British Parliament, the government had to tighten its control over the Company, and two high officials, with powers similar to those of Roman proconsuls, Robert Clive and later Warren Hastings who had made considerable contributions to the growth of British dominion in India, were accused of corruption and, in the latter’s case, impeached. The American colonies were also developed by such companies until the Crown took over their administration. At sea, by resorting to harsh means, Britain remained victorious in hard-fought battles against both the Netherlands and France (Naval Warfare). With the aid of bases gradually established in many parts of the world, Britain, from 1763 onwards, ruled the seas with its navy.

16  Then, however, a group of British colonies in North America, calling themselves the Thirteen United States of America, freed themselves from the injuries and usurpations of the British monarchy in the Declaration of Independence of 4 July 1776. Relying on the principle of self-determination, they founded a Roman republic, with Senate and House of Representatives on Capitol Hill, taking as their emblem the eagle, holding in its beak a scroll with the Latin inscription E Pluribus Unum, and the five-pointed star of the Enlightenment. Supported by France and by many other Europeans, the new American federal State created by the American Revolution was able to assert its independence in a seven-year war and in the Peace of Paris (Definitive Treaty of Peace between Great Britain and the United States [signed 3 September 1783] [1783] 48 CTS 487) was recognized as a new subject of international law even by its mother country (Federal States). This was a landmark in the history of the world.

17  The 1787 Constitution of the United States empowered Congress ‘to define and punish Piracies and Felonies committed on the High Seas and Offences against the Law of Nations’ (Art. I, sec. VIII, clause 10 1787 Constitution of the United States; Piracy). Congress and only Congress was entitled to declare war (Art. 1, sec. VIII, clause 11 1787 Constitution of the United States), whereas in the monarchies of Europe the declaration of war was a prerogative of the absolute rulers. Of great significance is the following: ‘all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding’ (Art. VI, clause 2 1787 Constitution of the United States). This provision reflects decisions of English courts going back to the first half of the 18th century and may be seen as Anglo-Saxon doctrine concerning the relationship of international law to domestic law (International Law and Domestic [Municipal] Law); after World Wars I and II it was incorporated in a number of new constitutions.

18  To the west of the European colonies along the east coast of North America lived the sovereign tribes of the Indians. Treating them as sovereign legal communities, England and France concluded treaties and formed alliances with them in order to gain their support against the other colonial power (Indigenous People, Treaties with). As the Indians came to suffer from the land-hunger of the English settlers, a royal proclamation of 1763 forbade the grant of land claimed by Indian tribes until the Indian legal title should lapse by sale or a treaty of cession. On 13 July 1787, the United States (‘US’) passed the so-called Northwest Ordinance in which it was stated:

The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them. (FN Thorpe [ed] Federal and State Constitutions, vol 2 [GPO Washington 1909] 957)

19  This doctrine was embodied in an Act of 7 August 1789. The Indian tribes were thus protected from every attack, except when Congress authorized a just and lawful war against them—for example, if the Indians launched an unjustified attack. The sovereign tribes were therefore not only treated according to universal international law; they were also made subject to the prevailing European rule that a war could only be waged lawfully if a sufficient legal ground existed. Chief Justice John Marshall elaborated the international rights of the Indians in a number of court decisions; at the same time, however, he indicated that a weaker community could seek the protection of a stronger one without sacrificing the character of a State with home rule.

20  The settlers of European origin in the US accepted the validity of European international law; even when their self-confidence grew and they increasingly dissociated themselves from Europe, they never claimed the right to develop a North American international law. The US even contributed considerably to the further development of European international law.

21  The success of the American Revolution, supported by France against Britain, forced the French government to make internal reforms. The Estates-General convoked by the king, in which the citizens of the third estate were allotted seats according to their number, guaranteed the legal status of all citizens in the Déclaration des droits de l’homme et du citoyen of 1789. The catalogue of these rights was incorporated in the French Constitution of 1791 and subsequently included in a number of other European and non-European constitutions. According to the French Constitution of 1791 the right to declare war, to make peace, and to ratify treaties—of peace, alliance, and commerce—was vested in the legislative body. If the executive power commenced hostilities and the corps législatif (legislative body) judged this action to be a culpable aggression on the part of the minister or other executive organ, the author of the aggression was liable to prosecution. According to Title VI, France renounced all wars of conquest; its armies would never be employed against the freedom of other nations. Thus, the National Assembly did not approve the incorporation of the enclave of Avignon, a Papal State (Enclaves), until after a plebiscite had been held, although papal control had been destroyed de facto by revolution.

22  In the French Constitution of 24 June 1793, the principle of non-intervention in the government (ie the internal affairs) of other States was embodied in Art. 119 (Intervention, Prohibition of). Art. 118, however, declared France to be the friend and natural ally of all free peoples. The principles of the Revolution were to be considered valid for humanity as a whole. The legal position of aliens was also regulated very generously. On the other band, the National Convention in 1795 declined to adopt a Déclaration du droit des gens presented by representative Abbé Grégoire which, following the lines of the rights of man declaration, formulated the rights and duties of States according to international law (States, Fundamental Rights and Duties); many of the points have in the course of time become rules of international law.

23  In February 1794 the National Convention granted the black slaves in Haiti freedom and equality with the white population; in 1797, the Directorate appointed the negro Tousaint l’Ouverture as supreme commander in Haiti. He declared the independence of Haiti and as president gave the island a constitution (see also Haiti, Conflict). In 1801 Napoleon attempted in vain to regain the rich colony, and in 1803 France had to withdraw completely. With the creation and recognition of the new States Haiti and Dominica the process of decolonization was given a new impetus. The independence movements in Latin America gained momentum, leading to the formation of new States independent of Spain and Portugal after the Vienna Congress (Decolonization, Portuguese Territories; Decolonization, Spanish Territories).

24  The war of the changing coalitions of European States against France brought General Napoleon to power. This is not the place to describe in detail the many territorial changes and the formation of new States. Numerous States of the Holy Roman Empire subordinated themselves to the victorious might of France in the Rhenish Confederation, causing Emperor Franz II to abdicate in 1806. The system of the Peace of Westphalia finally lay in ruins. Under the patronage of France the mediatization and secularization of many of the members of this Confederation had taken place; its successor, the German Confederation founded in 1815, numbered only 39 Member States. In 1797 the territory of the Republic of Venice, together with Dalmatia, passed to Austria, and in 1815 that of the Republic of Genoa to Sardinia-Piedmont. France’s struggle for hegemony, which under Napoleon knew no bounds, finally met defeat at the hands of the coalition of European States. In 1815 the Congress of Vienna founded a new peace order in Europe and restored the balance of power. But certain programmes and institutions of the American and French Revolutions were adopted in the constitutions of most European States and gradually also became part of European international law.

3.  European International Law

25  In the development of European international law the period 1648 to 1815 is characterized by a lively interplay of relations among numerous European States, which consisted in ever-changing alliances, political treaties and diplomatic correspondence. With the appearance of manufactured goods and industries in the age of mercantilism and capitalism, trade and shipping intensified, not only between European States, but also between these and their overseas colonies and other countries outside Europe.

26  The exchange of permanent diplomatic agents and missions between European States, including Russia, became common practice. The absolute monarchs and their representatives insisted on special treatment and privileges; there was therefore constant strife within the diplomatic corps. As early as 1700 there were already three classes of diplomatic representatives in Europe: ambassadors, envoys, and chargés d’affaires. The Vienna Rules of 1815 confirmed these three classes and established the principle of local seniority within each class. Consuls continued their previous activities, which in the Near East, on the basis of capitulations, included jurisdiction over their own nationals (Consular Jurisdiction). In view of the large number of European subjects of international law, the number of intra-European treaties increased. In addition, treaties were also concluded with South and South-East Asian States and with American and African native tribes. In the preamble to the treaties it remained customary to invoke God or the Holy Trinity. On the other hand, the confirmation of the treaty by oath—corroboration—became obsolete. In multilateral treaties and protocols, difficulties constantly arose concerning the arrangement and order of the signature.

27  Acquisition of territory required the approval of the former sovereign (Territory, Acquisition). Conquest as such conferred no legal title. Cession only became legally valid after the conclusion of a treaty, usually a peace treaty. In view of the balance of power principle, a transfer of territory in Europe affected all European States. Even during the period of absolutism, the new ruler recognized the rights and privileges of the various estates. In special provisions in the treaties he committed himself to the protection of religious minorities (Minorities, European Protection; Minorities, International Protection). As bondage and serfdom was still widespread during this period, option of nationality or plebiscites for the population as a whole were not even considered.

28  The increase in trade created the need for special commercial treaties. Customs were collected according to fixed schedules at the national frontiers; internal duties gradually disappeared (Customs Law, International). The French customs tariff was introduced in 1664 by the mercantilist Minister Colbert. In the Methuen Treaty of 27 December 1703 (Treaty of Commerce between Great Britain and Portugal [signed 27 December 1703] [1703] 25 CTS 37) Portugal permitted the import of British textiles, while Britain committed itself to levy on Portuguese wine only 2/3 of the duty payable on French wine. A treaty of commerce and navigation which already included the most-favoured-nation clause was concluded at the same time as the Peace of Utrecht (Treaties of Friendship, Commerce and Navigation). Free trade, however, was still a thing of the future. Competing for trade with the Netherlands, Cromwell passed a Navigation Act in 1651 according to which foreign goods could only be imported into Britain on board British ships; if they were of European origin, however, they could be brought to Britain by ships belonging to nationals of the producer country. Britain only gradually relaxed these provisions.

29  Trade expanded to include human beings. As early as the 16th century Spain granted asientos (licences) to private traders, mostly non-Spanish, who acquired African negroes from slave hunters, usually Arabic, and transported them for sale in the Spanish and British colonies (Slavery). It was not long before other European countries took part in this three-way traffic: European goods from Europe to Africa, slaves from there to America, and finally products from American plantations and raw materials back to European ports. At the time of the Peace of Utrecht 1713, Britain acquired from Spain the monopoly to supply slaves to the Spanish colonies—an example of an asientos agreement. The government transferred this monopoly to the South Sea Company. Between 1680 and 1786 British dealers alone transported over two million black slaves to America. In Europe and the US opposition to this traffic in persons gradually developed. The powers represented at the Congress of Vienna declared on 8 February 1815 (Declaration of the Eight Courts [Austria, France, Great Britain, Portugal, Prussia, Russia, Spain and Sweden] [signed 8 February 1815] [1815] 63 CTS 473) that ‘the voice of the people has been raised in all civilized countries’ (ibid) against the trading in African slaves; they proclaimed in the name of all the Powers of Christendom their desire ‘to put an end to a scourge which has so long ravaged Africa, degraded Europe and afflicted humanity’ (at 475). In the course of the 19th century maritime slave trading was largely stamped out by the British navy which, in accordance with an agreement of 20 December 1841 (Treaty between Austria, Great Britain, Prussia and Russia for the Suppression of the African Slave Trade [signed 20 December 1841] [1841] 92 CTS 437), acted as a kind of maritime police force.

30  The growth of communications and trade led to the gradual dismantling of domestic provisions discriminating against aliens. On the basis of customary international law, aliens were accorded legal personality and could possess property. At the same time, most States laid claim to the property of aliens at death—ius albinagii, droit d’aubaine, right of escheat—or placed a high duty on their estate—ius detractus, droit de detraction. If the alien wished to leave the country, a gabella emigrationis (departure tax) was levied. Goods stranded on the beaches or driven in by the sea were regularly claimed by the coastal inhabitants or by the coastal State—ius litoris or ius naufragii, droit d’epave or droit de naufrage, Strandrecht. In numerous treaties concluded during this period, the abrogation of these rights was mutually agreed. A general adjustment of the legal position of aliens to that of nationals of European—Christian or civilized—States did not occur until the 19th century when the influence of political and economic liberalism made itself felt. Certain treaties of friendship, commerce and navigation, however, contained provisions of this nature even before 1815.

31  There were also developments in private international law. The practice of lettres de marque (letters of reprisal) continued until the end of the 18th century. If a private person had suffered damage at the hands of a foreign State or its nationals and had been unable to obtain compensation, the victim could claim a patent—a lettre de marque—which permitted him to seize ships or goods of the State, or its nationals, which had inflicted the injury. This was an example of authorized self-help by an injured party in times of peace and was not regarded as a warlike action.

32  In times of war, States augmented their naval forces by granting commissions to private entrepreneurs permitting them to attack not only enemy but also neutral shipping according to the laws of sea warfare (Privateering). The privateers were required to bring captured ships or their cargo into a port of their home country and submit them to the ruling of a prize court (Prize Law). The practice of issuing lettres de marque and letters of reprisal gave rise to much abuse. The corsairs—in the Caribbean Sea centred on Haiti, also called filibusters and buccaneers, and in the Mediterranean Sea emanating from the Barbary States of North Africa, such as Algiers, Tunis, and Tripoli, which had gained their independence from the Ottoman Empire—often overstepped the bounds dividing privateering from piracy. Piracy was defined as the use of force by a private ship on the high seas against another ship with the intention of enriching the master and crew of the attacking ship. Pirates were regarded as hostes humani generis (enemies of humanity) and could be punished as criminals by any State (International Criminal Law).

33  The international law of warfare during this period was characterized by the large number of agreements concluded by the military commanders of the belligerent parties. These military agreements (cartels) effected the exchange and release of prisoners of war. Wounded and sick enemies were to be returned as soon as possible to their armies and compensation had to be paid for their care (Wounded, Sick and Shipwrecked). In the case of surrender, provision had to be made for the care of the sick and the wounded. Hospitals were exempt from seizure; a French–English cartel of 1743 declared military hospitals to be inviolable. The humanization of warfare had thus clearly begun (Humanitarian Law, International).

34  Ransom for prisoners and prisoners of war was still customary. For the release from Turkish captivity of the Spanish officer and dramatist Miguel Cervantes the sum of 500 gold ducats had to be paid to the Pasha of Algiers. The Barbary States were paid high ransoms for prisoners; these were otherwise at risk of being sold as slaves in the Near East. An Anglo-French treaty of 1780 stipulated ransom at the rate of 25 francs for a private soldier and of 1,500 francs for a field-marshal.

35  As regards neutrality in land warfare, the right of belligerent States to send troops over the territory of a neutral State was, with certain reservations, considered compatible with the current laws of neutrality.

36  In order to protect neutral trading in a maritime war the Dutch concluded a series of treaties shortly after the Peace of Westphalia embodying the principle of free ships, free goods (Neutrality in Naval Warfare). A number of other European countries followed suit. Only those goods which were directly intended for warlike purposes were qualified as contraband. During the Seven Years’ War—1756 to 1763—the British navy cut off all shipping links between France and its overseas possessions. The Dutch, as neutrals, took over this trade—which prompted Britain to declare their ships as valid prize. During this period, the rule of continuous voyage became generally accepted.

37  Belligerents claimed the ius angariae (the right to confiscate neutral ships and force their crews into service against the enemy). From the 17th century onwards, treaties frequently contained provisions in which the parties mutually renounced this right; it therefore died out in the 18th century.

38  When during the American War of Independence—1776 to 1783—the belligerents blocked the trade of neutrals, Russia addressed to them a declaration, supported by Austria, Denmark, the Netherlands, Portugal, Prussia, the Kingdom of Sicily, and Sweden. The declaration demanded the freedom of shipping for all neutral ships, reiterated the principle of free ships, free goods and emphasized the need for the effectiveness of a blockade. Neutral ships should, however, be accompanied by warships—the convoy system; hence the concept of armed neutrality. Britain followed these rules only in part; the blockade it imposed on the European States occupied or controlled by France from 1800 to 1813 did not conform to the rules. However, the neutral States in their domestic legislation—eg the US in the Neutrality Act of 1794—contributed considerably to the development of the international laws of neutrality (Neutrality, Concept and General Rules).

39  The peaceful settlement of disputes by arbitration, envisaged in the Peace of Westphalia, was hardly ever resorted to in the period 1648 to 1815. The absolute monarchs were not prepared to subject their disputes to the decision of foreign umpires. Nor was the Pope appealed to as arbitrator by Catholic States. It was not until 1794 that arbitration clauses were included at the instigation of US Secretary of State John Jay in a British-American treaty intended to settle questions which had remained unresolved after the Peace of Paris of 1783, eg for settling the claims for damages of British and American nationals whose assets had been confiscated or whose ships had been seized by the enemy government (Jay Treaty [1794]). Each government was to appoint two commissioners who together would elect a fifth commissioner as chairman; in the absence of agreement he was to be chosen by lot. This commission was active from 1798 to 1804 and made over 536 awards. Some of these decisions created precedents which have had lasting repercussions.

C.  The Ottoman Empire and Europe

40  The conquests by the Ottoman Empire had spread in all directions. It surrounded the Black Sea, held Egypt and North Africa in thrall, controlled the Balkans, and ruled central Hungary as an Ottoman province. In 1623 the Shiite Persians under Shah Abbas conquered Baghdad, but it was regained in 1638 by Sultan Murad IV. There were also religious and political differences within the Islamic family of States. For this reason the Ottomans did not take advantage of the Western Emperor’s precarious position during the Thirty Years’ War to launch a new attack on Vienna; only after that war did they renew their movement towards the west. The next attack against Austria in 1664 was halted at its frontier. In 1669 the Ottoman Empire conquered the island of Crete, which was defended by Venice; in 1683 it laid siege to the imperial city of Vienna, the most strongly fortified town of central Europe. In an historically significant battle it was defeated by a relieving army led by the Polish King Sobieski and the whole of Hungary was restored to the control of its king, a Habsburg, in 1686. The later wars of the Ottoman Empire against its neighbours Austria, Poland, and Russia belong directly in the political history of Europe as they and the peace treaties concluded at Carlowitz (Treaty of Peace between the Emperor and Turkey [signed 26 January 1699] [1699] 22 CTS 219), Passarowitz (Treaty of Peace between Venice and Turkey [signed 21 July 1718] [1718] 30 CTS 371), Belgrade (Definitive Treaty of Peace between the Emperor and Turkey [signed 18 September 1739] [1739] 35 CTS 381), Kuçuk Kainardji (Treaty of Perpetual Peace and Amity between Russia and Turkey [signed 10 (21) July 1774] [1774] 45 CTS 349), Jassy (Treaty of Peace between Russia and Turkey [signed 9 January 1792] [1792] 51 CTS 279), and Bucharest (Treaty of Peace between Russia and Turkey [signed 16 (28) May 1812] [1812] 62 CTS 25) are linked with external and internal political events in central and western Europe. The westwards thrust of the Ottomans in 1683 ended finally in retreat. The entire northern shore of the Black Sea to the mouths of the Danube fell to Russia (Danube River), while at the same time the independence movements of the Christian populations in Serbia, Greece, Moldavia and Walachia grew in strength. The Ottoman Empire, however, remained an important factor to be reckoned with in the European political balance of power.

41  Diplomatic relations with the Ottoman Empire remained one-sided. It permitted the establishment of permanent diplomatic representations in Constantinople and consulates elsewhere, but, in accordance with the Islamic sense of superiority, the Sublime Porte—the government of the Ottoman Empire—only sent low-ranking officials abroad, and then only occasionally (Islamic Approach to International Law).

42  Nor was the Sublime Porte interested in reciprocity in trade relations which continued to be regulated by capitulations. In 1714 France was able to obtain considerable concessions in a capitulation comprising 85 articles; French rights over the Holy Places in Palestine were extended. In the same year as the Peace of Passarowitz in 1718 Austria concluded a trade treaty with the Sublime Porte in which it received all the rights of the other capitulation powers but in which it also granted to the Sublime Porte the right to appoint consuls on Austrian territory, but without consular jurisdiction. Trade treaties with Sweden in 1734, Prussia in 1761, and Russia in 1783 followed; Russia was granted considerable privileges which were then claimed by other European States on the basis of the most-favoured-nation clauses in their own trade treaties. In the Treaty of Belgrade of 1739 Russia was acknowledged as protector of the pilgrims to the Holy Land (Art. XI); the Treaty of Kuçuk Kainardji gave Russia the right to make proposals in matters concerning the Christian (Orthodox) Church, which the Sublime Porte promised ‘to take into consideration’ (Art. VII). Russia later claimed that these provisions also gave its the right to extend its protection to the Christian subjects of the Ottoman Empire.

43  With the conquest of Egypt in 1517, Tripolitania, Tunisia, and Algeria also fell under the sway of the Ottoman Empire; Morocco maintained its independence. Around 1700 these territories became independent of the Sublime Porte under native rulers. The corsairs of the Barbary States made the Mediterranean unsafe with their acts of piracy. Nevertheless, European States also concluded treaties with these Islamic States.

44  The question remains to be considered as to which system of regional international law the treaties and international law relations between European States and the Ottoman Empire may be ascribed in the period 1648 to 1815. When their relations first developed, Christian and Islamic States confronted each other in a mood of distrust and even enmity. As both religions claimed exclusive authority, any contractual or legal links were at first out of the question. Soon, however, agreements proved necessary for ending hostilities, for armistices and the conclusion of peace, for the determination of boundaries and for mutually beneficial trade across the frontiers of the two regions with their different legal systems. The institutions of the treaty and the obligation to fulfil contractual commitments were legal rules shared by the parties in spite of their ideological and cultural differences; the same held true for the inviolability and immunity of envoys. In the texts of the treaties negotiated between European States, the Ottoman Empire and other Islamic States are to be found elements of both European-Christian and Islamic law, which gradually came to be accepted by both sides, for example, the exemption of Christian aliens from the jurisdiction of local Islamic courts provided for the capitulations. Because of this mixture of treaty contents from two legal systems, one might assume a special supraregional Christian—Islamic international law. In view of the concentrated nature of the political relations, both hostile and peaceful, of the Ottoman Empire with European States, as outlined above, that Empire had for a long time been an important factor of European political life and, as a State on the European continent, had in its own interest accepted this European role. At the same time the Ottoman Empire maintained relations with other Islamic States to the east, eg Persia, Afghanistan, the Moghul Empire, and the Indian principalities (Afghanistan, Conflict). The Ottoman-European treaties cannot simply be attributed to any one system of regional international law, be it European or Islamic. The legal basis was also not, however, a specific Christian—Islamic system but rather universal international law. Pacta sunt servanda was and remains a basic universal legal principle, first of the Romans and then the Christians—but also of the Moslems: the Qur’an exhorts the faithful also to honour their contractual obligations towards infidels (Surah X, 9, 4).

D.  International Law in South and South-East Asia

45  After settlement by the Indians, a diverse system of States and power complexes developed on the Indian subcontinent. Only for a short time did the Maurya Dynasty—Chandragupta and Asoka, who encouraged the spread of Buddhism—succeed in uniting almost the whole of India in one empire. A regional international law had already developed among the Indian States. Around 300 BCE the statesman and philosopher Kautilya wrote a work on the art of government, Arthasastra, in which he advocated a political balance of power for the Indian system of States and also discussed customary international law. After the conquest of Persia, the Arabs, after AD 712, occupied the north-west area of India and founded Islamic States—Sind, Multan. They pressed forward to the boundary of China, where the last Persian king had found asylum. In 1216 the Islamic sultanate of Delhi was formed and soon expanded to comprise the whole of northern India, including Bengal. At that time many Indians were converted to Islam. Arabs took Islam as far as Indonesia, Islamic culture replacing the native Indian culture. Special studies into the consequences of this co-existence for international law on the Indian subcontinent still remain to be undertaken. The Muslim Timurid, Babur, who on his mother’s side was a descendant of Genghis Khan’s son Jagatai, conquered the sultanate of Delhi in 1526 and founded the dynasty of the Grand Moghuls; the language of the Delhi court was Persian. While the first five Grand Moghuls, especially Akbar (1556–1605) were religiously tolerant, Aurangzeb (1658–1707), a fanatic Muslim, persecuted the followers of other religions; after ascending the throne he took the title Alamgir, Conqueror of the World, and brought almost the whole of India under his control. The resistance of the Hindus to this oppressive rule was begun by the Marathas of the Deccan who declared themselves independent in 1674. In 1739, the Moghul Empire was compelled to cede all their land west of the Indus to Persia under Nadir Shah (1736–47). When he was murdered in 1747, Afghanistan declared its independence from Persia under Ahmad Shah Abdali, who twice marched victoriously into Delhi. Around 1750 the federation of Maratha States was the most powerful factor in India.

46  In the meantime, since 1489, first the Portuguese and then the Danes, Dutch, British, and French had been landing at various ports in India and had set up trading posts on the basis of treaties with the Indian princes. These European expeditions came either in the name of the king, as in the case of the Portuguese, or were sent by a chartered company. The Indian princes did not, however, regard the leading officials of the East India Company as representatives of the British King, although these officials later led a princely existence in palatial mansions. The relations between European and Indian States were gradually woven, through both commercial and diplomatic negotiations, into a tight web of bilateral treaties which from the 16th to the 18th century were concluded on a basis of equality. After the Portuguese had dominated European trade with India and China for almost 100 years, the other maritime European States gradually demanded their share. They fortified their bases and enlarged them. It was not long before wars between European States extended to their dependencies in India.

47  Among the numerous treaties between European and Indian (and Indonesian) States of this period, the 1779 Treaty of Poona between Portugal and the Marathas (Treaty between the Maratha Empire and Portugal [signed 4 May 1779] [1779] 47 CTS 127) is of significance in that it played a part in the Right of Passage over Indian Territory Case before the International Court of Justice (ICJ), which delivered two judgments on 26 November 1957 and 12 April 1960. Portugal claimed from India free transit rights from its coastal territory of Daman to the two Portuguese inland enclaves of Dadra and Nagar-Aveli. One of the legal grounds on which it supported this claim was the 1779 treaty, which may be described as a very detailed treaty of friendship, assistance and navigation. The two parties committed themselves, inter alia, to assist one another in naval battles with an enemy; the Marathas and Britain were at that time in a state of hostilities. The Marathas promised Portugal an annual payment of 12,000 rupees to be drawn by Portugal from a jagir or saranjam (small territory granted in recognition of military service) over the Maratha areas of Dadra and Nagar-Aveli. This Muslim-Indian legal institution served in the Moghul Empire and in the Maratha States as a means of payment of the salaries of officers who themselves had to collect taxes in areas allotted to them. Portugal assumed the administration of these areas—but not sovereignty—upon some notable conditions set out in two sanads (implementation decrees). It agreed not to erect fortified buildings, to preserve places of cultural interest, to respect the religious observance of the Indians, not to baptize Indian orphan children, but also to put down any revolts. The agreement represented a lease of Maratha territory in the form of a cession of administrative authority.

48  The ICJ considered that this agreement had been validly concluded according to international law and rejected an Indian objection that it was not binding in international law:

It is sufficient to state that the validity of a treaty concluded as long ago as the last quarter of the eighteenth century, in the conditions then prevailing in the Indian Peninsula, should not be judged upon the basis of practices and procedures which have since developed only gradually. The Marathas themselves regarded the Treaty of 1779 as valid and binding upon them, and gave effect to its provisions. The Treaty is frequently referred to as such in subsequent formal Maratha documents, including the two sanads of 1783 and 1785, which purport to have been issued in pursuance of the Treaty. The Marathas did not at any time cast any doubt upon the validity or binding character of the Treaty. (Right of Passage Case [1960] ICJ Rep 6, 37; Treaties, Validity)

49  In the period 1648 to 1815, therefore, positive international law was applied between European and Indian and South-East Asian States, and international treaties were concluded between equal parties. In his dissenting opinion in the Right of Passage Case, Judge Moreno Quintana was simply reflecting the general opinion of the court when he stated that ‘the exchange of documents…was no doubt the expression of a common agreement creating mutual rights and obligations between two legal persons recognized as such in their international relations’ (Right of Passage Case [Dissenting opinion of Judge Moreno Quintana [1960] ICJ Rep 6, 91).

50  This example will have to suffice; space does not allow a discussion of the treaties between European and Indonesian States. The Portuguese began trading with Siam in 1511, followed by the Dutch and the British. In 1624 there was an exchange of letters between the King of Siam and James I of England; in 1686 a Siamese delegation arrived in Paris. Siam was able to retain its independence; in 1826 it concluded a treaty of friendship and commerce with Britain, and in 1833 a similar one with the US.

51  In the category of treaties between European and Indian and south-east Asian States the question again arises as to whether they were concluded on the basis of European or of Indian-Muslim regional international law. In view of the large number of such treaties, concluded on the basis of equality of the partners, Charles Alexandrowicz deduces the existence of a special public law of Europe and Asia (analogous to the description of European international law as droit public européen). Such treaties do indeed include provisions which often reflect a mixture of European, Indian, and Muslim legal institutions. But the common denominator of the treaties is not to be found in this hybrid form; and, besides, the title would be inexact because the complex in question relates rather to a public law of Europe and South and South-East Asia. It is sufficient to see universal international law as the basis for these treaties, limited to a few basic legal principles accepted as legally binding on both sides, eg pacta sunt servanda (General Principles of Law). For the contractual regulation of individual questions of common interest, institutions and elements from the legal system of one or the other party are injected into the agreements, with the consent of the other party concerned. The stipulation of reciprocity, which appears in many Indo-European treaties, has always been a balancing factor.

E.  International Relations in the Far East

52  During the Mongolian Yüan Dynasty (1279–1328) China had shown itself favourably inclined towards trade, including trade with the West. The Ming Dynasty (1368–1644) carried out internal reforms and extended China’s dominion to Korea and Annam; for a period of time even Ceylon was required to pay tribute. Chinese expeditions were sent to Java and the Persian Gulf. The Portuguese first landed in China in 1514 and traded with Europe out of Macau, which had been allotted to them. Certain European Jesuits penetrated to the heart of China, and because of their knowledge of mathematics and astronomy were highly regarded at the Imperial Court.

53  After 1644, the warrior tribe of the Manchus, coming from the north-west, assumed control. Under their Ch’ing Dynasty China greatly extended its empire and increased its prosperity. Tibet, Formosa, and Turkestan were incorporated. Under Emperor K’ang-hsi (1661–1722) China successfully repulsed a Russian advance from Siberia to the Amur River and beyond (1685). In the Russo-Chinese treaty of Nerchinsk of 7 September 1689 (Treaty between China and Russia [signed 7 September 1689] [1689] 18 CTS 503) trade on the basis of reciprocity was permitted. Subjects of the one country who had committed crimes on the territory of the other were extradited for sentencing in their own country; the same rule applied to persons who had left their country, without permission. In addition, Russia renounced its control over the Amur territory.

54  In 1692 Emperor K’ang-hsi issued a decree which amounted to a proclamation of religious tolerance; Christian missionaries were active in almost all the provinces. There was even a suggestion that Christianity should be generally adopted, on condition that the veneration of ancestors and Confucius be admitted. The Holy See, however, refused to countenance the Chinese rites which had been elaborated by the Jesuits. The disappointed Emperor allowed the missionaries to remain in his country, but forbade all further missionary activities.

55  After a war with Russia the Treaty of Kiakhta was signed on 21 October 1727 (Treaty of Peace, Boundaries etc between China and Russia [signed 21 October 1727] [1727] 33 CTS 23); it regulated frontier matters and granted Russia permission to maintain a permanent mission in China (Boundary Disputes between China and Russia). In 1733 a Chinese delegation was sent to Moscow—a remarkable event in the history of East Asia.

56  Under the Emperor Ch’ieng-lung (1736–96) Chinese armies pressed forward into Burma, Nepal and Annam. The trading activities of France, Great Britain, and the Netherlands—and, after 1784, the US—were restricted to a small number of ports. A British mission from King George III (1760–1821), after presenting handsome gifts, especially clocks and complicated mechanisms, requested in 1793 that a British envoy be accredited to the Chinese court. Emperor Ch’ieng-lung replied in words indicative of the contemporary view:

As to your entreaty to send one of your nationals to be accredited to my Celestial Court and to be in control of your country’s trade with China, this request is contrary to all usage of my dynasty and cannot possibly be entertained…. Our ceremonies and code of laws differ so completely from your own that, even if your Envoy were able to acquire the rudiments of our civilization, you could not possibly transplant our manners and customs to your alien soil…. Swaying the wide world, I have but one aim in view, namely, to maintain a perfect governance and to fulfil the duties of the State…. I set no value on objects strange or ingenious, and have no use for your country’s manufactures. (Backhouse and Bland 322)

57  China, as the empire in the centre of the earth, did not wish to consort on a basis of equality with foreigners from whom it considered tribute to be due. Around 1800 the Portuguese were still in possession of Macau; for other foreign merchants only the port of Canton remained open and modest trading posts were maintained there. China had cut itself off almost completely from European States.

58  Japan, after age long feuds among the daimios (feudal lords), who considered themselves almost as territorial princes, was reunited around 1550 into an empire under the shoguns (hereditary holders of an office similar to that of major-domo or vizier) ruling in the name of the Tenno (Emperor) who was venerated as a god. Shogun Hideyoshi attempted in vain to conquer Kwantung and Korea (1592–98). In 1542 the Portuguese had appeared in Japan and after 1549 Catholic missionaries—eg Francis Xavier—met with considerable success. Led by the Jesuits, a delegation of Japanese Christians visited the Spanish king and the Pope in 1582. However, the shoguns of the Tokugawa family feared that the Christians would endanger the Empire’s precarious political stability and wiped out Christianity. Japan cut itself off from all foreign contact; only Dutch merchants were allowed to maintain a trading post at Nagasaki.

59  It was not until the 19th century, that European States were able to re-establish trade with China and Japan after the threat and use of military force (1840, 1853–54).

F.  The European Doctrine of International Law

60  The large number of political and economic treaties during this period necessitated the publication of treaty collections, but these only made their appearance within the European system of States. With the growth of the middle classes in the many States of Europe, ever more persons in public and private life had to deal with questions which transcended the frontiers of their home country—businessmen, manufacturers, ship-owners, merchants, privileged trading companies, insurance companies, judges, lawyers, academic jurists, and philosophers. Among the general treaty collections mention should be made of the following: J Bernard Recueil de traités de paix, de trêve, de neutralité … de confédération, d’alliance, de commerce, de garantie et d’autres actes publics (4 vols, 1700); GG Leibniz Codex juris gentium diplomaticus (2 vols, 1693); J Du Mont Corps universel diplomatique du droit des gens (8 vols, 1726–31, and 5 supplementary vols, 1739); GF de Martens Recueil des traités (11 vols, 1761–1808; this collection was continued up to World War II).

61  The following should serve as examples of treaty collections of individual States: those of Spain (1701–96); T Rymer (ed) Foedera, conventiones literae inter reges Angliae et alios quovis imperatores (20 vols, 1704–35); Capitulations et traités entre la France et la Porte Ottomane (1770); Die Verträge des Kantons Bern mit auswärtigen Mächten (1764). It is noteworthy that all these treaty collections included treaties with all States, including those with non-European States and with independent tribes in America and Africa, without discrimination. In spite of religious, cultural, and legal differences, the compilers accepted, following the Enlightenment movement of the 17th and 18th centuries that international relations are based on a universal system of international law.

62  International law doctrine was slow to draw on the great mass of material contained in international treaties. The reason was twofold. Ever since the growth of humanism and the Reformation, special significance was accorded to natural law in the political and legal philosophy of Europe (Natural Law and Justice). Natural law is of Greco-Roman origin and was elevated by Christian philosophers into theological doctrine. Grotius, although still following in the tradition of the Spanish scholastics Vitoria and Suárez, presented international law as an independent discipline with its own set of rules. For the writers who came after him, the central theme was the human individual and his rights and duties within the State. The main work of Samuel Pufendorf (1632–94), De jure naturae et gentium (8 vols, 1672), is more important for the political philosophy of the Enlightenment than for international law. Christian Wolff (1679–1754) regarded his Jus gentium as complementary to his eight-volume Jus naturae. Rules for individuals were deduced from philosophical premises and by analogy extended to rules for the coexistence of States. This secularized theory of natural law had, however, the merit of firmly incorporating law and international law within a system of values, of assuming peace to be the natural normal state between individuals and States, and of condoning war only as a means for enforcing the law or for self-defence. The writings of Cornelius van Bynkershoek (1673–1743) are oriented primarily towards State practice, while de Vattel’s (1714–67) Le droit des gens (1758) is a synthesis of philosophical, historical, and jurisprudential elements. Vattel’s work is often referred to as a classic of international law, but he leaves numerous important questions untouched. The reason for this—as is also the case with the natural law philosophers—is that these publicists were writing mostly in absolute monarchies and, as officials or teachers, had to take the current foreign policy of their patrons into account; they preferred to avoid legal questions which concerned contemporary policy.

63  International law discussions of current questions are to be found rather in the many broadsheets and pamphlets, which in the past have attracted too little attention among scholars. Thus, after the conquest of Silesia, Abbé de Saint-Pierre wrote a pamphlet calling upon Friedrich II to declare himself guilty and to submit his claim—in accordance with the provisions of the Peace of Westphalia—to a British-Dutch arbitral tribunal. Further sources worth investigating are the legal opinions in matters of international law which were intended not for publication, but for the information of governments—including those of absolute monarchs. Research into the history of international law has still an abundance of material to work on.

64  In view of the many wars of European States in Europe and overseas in the period following the Peace of Westphalia, certain writers of the time completely denied the legal character of international law. For Thomas Hobbes (1588–1679) in his Leviathan (1651) the natural state consisted in the war of all against all, which could only be transformed into a strict order by command of the sovereign. As the sovereign had no one above him, the law of the stronger continued to prevail in international relations. Baruch Spinoza (1632–77) expounded a similar theory. Both philosophers had a pessimistic view of mankind. Heinrich Lammasch countered these philosophers and their successors in the 19th century—the exponents of power politics, the Hegelians and the social Darwinists—with the following words: ‘If we turn away from the aberrations of a theory which complaisantly accepts the use of force and look towards reality, we shall find that this is indeed harsh, but not so harsh as that theory’ (H Lammasch Das Völkerrecht nach dem Kriege [Aschehoug Kristiania 1917] 135). Indeed, European State practice offers no example of a statesman—monarch or dictator—claiming the right of the stronger as a ground for waging wars of conquest.

65  The exponents of natural law and rational Enlightenment had, however, an optimistic view of mankind and attempted to construct a peaceful order—as proposed in the Peace of Westphalia—for Europe. Following the Duc de Sully’s Great Design of 1641—Europe as a Christian republic—William Penn in his Essay towards the Present and Future Peace of Europe (1693) proposed a European confederation of States which would include Russia and the Ottoman Empire; the States would be represented in its supreme Council according to their annual incomes. Charles Irénée Castel, known better as the Abbé de Saint-Pierre, envisaged in his Projet pour rendre la Paix perpétuelle en Europe (Fayard Utrecht 1713) a federation of Christian States within which a senate, consisting of delegates of all the sovereigns, would settle all disputes; its decisions should, if necessary, be implemented by the use of force. The works of Saint-Pierre influenced the writers of the Enlightenment, especially Jean-Jacques Rousseau (1712–38) and Immanuel Kant (1724–1804); Kant’s essay Vom Ewigen Frieden reflects similar ideas (Peace, Proposals for the Preservation of). These writings have been frequently regarded as theoretical precursors of the League of Nations and the United Nations (UN).

66  The period of natural law and the Enlightenment was a preparation for the breakthrough of human rights and the principle of self-determination in the American Revolution. The declaration of human and civil rights in the French Revolution was adopted in most of the 19th century constitutions of Europe and America. The Déclaration du droit des gens, which Abbé Grégoire presented to the National Convention, with its catalogue of the international rights and duties of States, took longer to become part of the body of international law.

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