Emmerich de Vattel, The Law of Nations (1758)

One of the most influential early writers on the subject of the law of nations was the Swiss jurist and philosopher, Emmerich de Vattel. His most famous work, Droit des gens; ou, Principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains (in English, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns) published in 1758, established Vattel as a major authority on the subject.[1] Although there is a continuing debate as to the “paternity” of international law,[2] not even Vattel’s harshest critics deny his pivotal role.[3] According to Vincent Cheltain, no other scholar has so deeply influenced the development of international law than Vattel. He argues that Vattel’s thought proved to be instrumental for conceptualizing international law as a law between states and centered on states.[4]

Emmerich de Vattel was born in Couvet in Neuchatel, Switzerland in 1714.[5] He studied humanities at the University of Basel where he was exposed to the writings of the German international jurist, Samuel Pufendorf. Later, he pursued studies in theology and metaphysics in Geneva and was a student of another international law jurist, Jean-Jacques Burlamaque. He was largely influenced in his philosophy by Gottfried Leibniz and Christian Wolff and later attempted to integrate their ideas into the legal and political system he envisioned.

Later, Vattel secured a diplomatic position in Berne and entered the Saxon diplomatic service, where he acted as adviser and minister-plenipotentiary. It was during this period of his life that he wrote and published The Law of Nations. At the time of its publication, the Seven Years War was taking place in Europe.  The war began when Frederick the Great invaded Augustus III’s Saxony (after the latter formed an alliance with Maria Theresa of Austria against Prussia over the control of the Province of Silesia).[6] Augustus III was impressed by The Laws of Nations and, requiring competent diplomatic advisors, he appointed Vattel to the Privy Council in 1759, and made him chief adviser of the Government of Saxony on foreign affairs.[7]

Vattel’s The Law of Nations was principally influenced by Wolff’s Jus Gentium Methodo Scientifica Pertractum (The Law of Nations according to the Scientific Method). Indeed, Vattel’s work began by translating Wolff’s text from Latin, and adding his own thoughts. Vattel’s work was also greatly influenced by Hugo Grotius.

Vattel’s work quickly became the most widely-referenced text of the law of nations among diplomats and scholars.  In an early 20th century study on “the Authority of Vattel,” Charles Fenwick noted that “Vattel’s treatise on the law of nations was quoted by judicial tribunals, in speeches before legislative assemblies, and in the decrees and correspondence of executive officials. It was the manual of the student, the reference work of the statesman, and the text from which the political philosopher drew inspiration. Publicists considered it sufficient to cite the authority of Vattel to justify and give conclusiveness and force to statements as to the proper conduct of a state in its international relations.”[8] As Lapradelle stated, “of all the authors, even the English, who have written on the law of nations, there is not one who is more often nor more extensively cited than Vattel.”[9]

The Law of Nations had a particular impact on the American revolutionaries of the late 18^th Century and early 19^th Century.[10] Vattel’s ideas were utilized to argue against the tax burden which the British Crown levied on the American colonies. Early American lawyers and jurists were exuberant Vattelophiles.[11] In 1775, Benjamin Franklin received three copies of a new edition on behalf of the Continental Congress and, in thanking his friend Charles Dumas for sending them from the Netherlands, he remarked that they “came to us in good season, when the circumstances of a rising State make it necessary to frequently consult the law of nations” and that “[the book] has been continually in the hands of the members of our Congress now sitting.”[12] Vattel was quoted in the Constitutional Convention and in various political tracts and judicial opinions in the early Republic.[13] The positive legal reception of The Law of Nations in the United States is demonstrated by the numerous quotations by the U.S. Supreme Court.[14] The good reception that Vattel’s work received in United States, however, stood in sharp contrast with the mixed reception it received in Europe.[15]

 

Structure and Argument

The Laws of Nations is a two-volume work structured in three parts: first, a Preface, in which the author explains motives and the guiding principles behind the work, second, the Preliminaries, which provides a general picture of the main ideas of the law of nations, and third, the Four Books, which constitute the body of the work (Book One on the nation in itself, Book Two on the nation and its relation with others, Book Three on war, and Book Four on peace and embassies).

Vattel’s ultimate aim was to produce a treatise on international law that could provide practical guidance. The book was written specifically for statesmen, as outlined in the Preface: “The law of nations is the law of sovereigns. It is principally for them and for their ministers that it ought to be written. All mankind are indeed interested in it; and, in a free country, the study of its maxims is a proper employment for every citizens: but it would be of little consequence to impart the knowledge of it only to private individuals, who are not called to the councils of nations, and who have no influence in directing the public measures.”[16] As noted by Thevenaz, “Even the subtitle of his work indicates that his goal is to apply the principles of natural law to the conduct and affairs of nations and sovereigns. Thus, his domain is essentially that of political ethics for statesmen.”[17] The scope of The Law of Nations is actually much broader than its stated topic. It addresses both international and internal affairs of states. Indeed, in The Law of Nations, Vattel focuses on a wide variety of themes that correspond to the domestic issues of governments. Vattel offers practical guidance on many issues, including commerce,[18] the cultivation of the soil,[19] money and exchange,[20] religion[21] and public transportation and communication.[22]

The Swiss author’s ambition to produce a practical guide for statesmen is evidenced in the accessibility of his writing style.  Vattel wrote The Law of Nations in French, the diplomatic language of the time, rather than the customary Latin.[23] Vattel’s approachability led John Quincy Adams to remark to a young friend interested in the study of foreign affairs: “Vattel is the author most commonly resorted to in practical diplomacy, and his work being written in a popular and easy style is among those that you will find the least tedious in reading.”[24] (Critics, however, have contended that The Law of Nations’ success is owed in large part by the simplicity of its writing rather than its substance.[25])

According to Cheltain, “what facilitated and ensured the dissemination and understanding of Vattel’s thoughts lies in his method of reasoning, which is characterized by two features that largely appealed to statesmen.”[26] Cheltain notes that the first feature of Vattel’s reasoning is that it invokes common sense rather than scholarly arguments. Indeed, according to Vattel, “it is sufficient for me to persuade, and for this purpose to advance nothing as a principle, that will not readily be admitted by every sensible man.”[27] Cheltain also argues that the entire treatise is characterized by an appeal to prudence and pragmatism.[28] Indeed, in The Law of Nations, Vattel regularly insists on prudence as “a duty incumbent on all men”[29] and “a virtue highly necessary in sovereigns.”[30] Likewise, Vattel advocates for a pragmatic approach to law since “rights go hand in hand with necessity and the exigency of the case, but never exceed them.”[31]

The second feature of Vattel’s reasoning, and perhaps even more important than the first one, is the fact that, contrary to his predecessors, Vattel appeals to recent history instead of biblical or Greco-Roman eras in order to illuminate his views and persuade his readers.[32]  Indeed, Vattel explains in his Preface that, “it is principally with a view of rendering my work palatable to those by whom it is the most importance that it should be read and relished, that I have sometimes joined examples to the maxims I advance: and in that idea I have been confirmed by the approbation of one of those ministers who are the enlightened friend of the human race, and who alone ought to be admitted into the councils of kings. But I have been sparing in the use of such embellishments. Without ever aiming at a vain parade of erudition, I only sought to afford an occasional relaxation to the reader’s mind, or to render the doctrine more impressive by an example, and sometimes to shew that the practice of nations is conformable to the principles laid down. . . .”[33]

Cheltain argues that the concept of national sovereignty, which is at the heart of Vattel’s The Law of Nations, was the most decisive factor in Vattel’s influence in the United States and the overall impact of his work.[34] In this regard, Stephane Beaulac notes that Vattel’s aim was the externalization of power, which was transposed from the internal plane to the international plane.[35] Indeed, the first indicator of an intention to externalize the internal governing authority appears in Book One, entitled “Of Nations Considered in Themselves.” Book One focuses at length on “topics belonging not to international law, but to the distinct science of political or constitutional law concerning the internal government of particular States.”[36] In the Preliminaries of The Law of Nations, Vattel proposes that “nations or states are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. Such a society has her affairs and her interests; she deliberates and takes resolutions in common; thus becoming a moral person, who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights.”[37]

The public body at the head of a society of men joining together to pursue common goals must have the power to provide order and to rule.[38] Vattel states that “this political authority is the sovereignty” and “he or they who are invested with it are the sovereign.”[39] Thus, “every nation that governs itself, under what form soever, without dependence on any foreign power, is a sovereign state. Its rights are naturally the same as those of any other State. Such are the moral persons who live together in a natural society, subject to the law of nations. To give a nation a right to make an immediate figure in this grand society, it is sufficient that it be really sovereign and independent, that is, that it governs itself by its own authority and laws.”[40]

It is important to note the context in which Vattel is writing his masterpiece. As Nussbaum states, “in the eighteenth century the countries of Western civilization presented, in comparison with conditions of the sixteenth and seventeenth centuries, a picture of relative stability.”[41] Indeed, fanatic religious wars had given way to more orderly and limited conflicts between rulers, fought by regular military forces. In this regard, F.S. Ruddy states that “war had ceased to be an instrument for enforcing morality as it was seen by Grotius, but rather it had become an accepted tool of State practice in eighteenth century Europe, for which the State’s interests rather than objective notions of right and wrong were the criterion.”[42] The issue of how to regulate this new European landscape through diplomatic and legal means was still very much the question of the day, and it is at the heart of Vattel’s work.

The idea of the moral person representing the people is developed in Book Three, dealing with war. Vattel defines war as “that State in which we prosecute our right by force.”[43] Vattel starts by drawing a distinction between public war, “that which takes place between nations or sovereigns, and which is carried on in the name of the public power, and by its order” and, private war, between private individuals, the right of which is considered extinguished by the social contract through which the individuals transferred authority to provide order and rule to the moral person of the State.[44]

In the Preface of The Law of Nations, draws out the consequences of the principle of state sovereignty. Vattel argues that “each sovereign State claims, and actually possesses an absolute independence on all the others.”[45] In the Preliminaries, Vattel provides an analogy: “Nations being free and independent of each other, in the same manner as men are naturally free and independent, the second general law of their society is, that each nation should be left in the peaceable enjoyment of that liberty which she inherits from nature. The natural society of nations cannot subsist, unless the natural rights of each be duly respected.[46] At the end of chapter three of Book One, which deals with the constitution of a nation, Vattel makes it clear that “no foreign power has a right to interfere”[47] in the internal affairs of other states (although he offered important qualifications to this general rule).

In Book Two, titled “Of a Nation Considered in Its Relation to Others”[48] Vattel further develops his principle of state independence and the general rule prohibiting interference in the internal affairs of a nation. He states that “it is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere in the government of another. Of all the rights that can belong to a nation, sovereignty is, doubtless, the most precious, and that which other nations ought the most scrupulously to respect, if they would not do her as injury.[49]

Vattel then takes us to the central purpose of his treatise, which is to lay down the principles of the law of nations “to establish on a solid foundation the obligations and rights of nations.”[50] (In the Preface, Vattel recognizes Hobbes as the first, to his knowledge, “who gave a distinct, though imperfect idea, of the law of nations.”[51]) Vattel defines his idea of the law of nations in the following terms: “The Law of Nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights.”[52] He further states that “the law of nations is the law of sovereigns; free and independent states are moral persons, whose rights and obligations we are to establish in this treatise.”[53] Consequently, the law of nations is a law which applies to nations and to them solely. In this regard, as Remec states, “Vattel’s main achievement was in outlining the sovereign state as the subject of the law of nations,”[54] and indeed, “the sole subject of the law of nations.”[55]

According to Fenwick, since the law of nature is the basis of Vattel’s theory of the state, it forms the basis of his system of international law.[56] For Vattel, the law of nature is applicable to nations just like it is applicable to human beings. He explains that “nations, or sovereign States, are to be considered as so many free persons living together in the state of nature.”[57] Vattel calls it the “necessary law of nations” and contends that it is “necessary because nations are absolutely bound to observe it.”[58] Consequently, in order to determine what the rules of international law are, it is merely necessary to apply the law of nature in a proper and scientific way to the affairs and the conduct of nations or of sovereigns.[59] Fenwick notes that for Vattel “these rules differ from those prescribed by the law of nature to individual men on certain points, owing to the fact that the application of the law of nature to states must be modified somewhat by the peculiar corporate personality which they possess.”[60]

This necessary law of nations moves alongside the positive law of nations, comprising the voluntary, the conventional and the customary laws of nations, which “all proceed from the will of nations; the voluntary from their presumed consent, the conventional from an express consent, and the customary from tacit consent.”[61] Vattel explains that the voluntary law of nations is fundamentally based on natural law, like the necessary law of nations.[62] However, since there is no supreme authority capable of deciding, in cases in which there is a dispute as to the application of the natural law, it follows that, in so far as nations are concerned, some relaxation in the application of the law of nature is necessary. Consequently, Vattel argues that alongside the necessary law of nations there exists the voluntary law of nations, which consists in the adjustments that must be admitted in the rigorous application of the law of nature by reason of the fact that there is no recognized interpreter of it.

Vattel explains that “it is for each nation to be the judge of what its conscience demands of it, or what it can or cannot do, or what it is convenient or inconvenient for it to do; and, accordingly, each nation must consider and decide whether it can perform a certain duty towards another without failing in its duty towards itself.” However, this right does not hold where a nation is under an obligation to another. Vattel holds that there are two classes of obligations, those which are binding in foro interno, and those which are binding in foro externo; and as Vattel notes only the latter give rise to corresponding rights on the part of other parties. These rights are perfect when they carry with them the auxiliary right of constraint; otherwise, they are imperfect and are dependent upon voluntary fulfilment by the other party. For Vattel, “it is the principle that, in those matters where all imperfect rights and obligations are involved force cannot be used to constrain a free state, which gives rise to the rules constituting the voluntary law of nations; and since all nations must recognize that the rules of the voluntary law are essential to the society of nations as it actually exists, it is presumed that nations have given their consent to them.”[63]

Fenwick notes that Vattel fails to answer the question of what determines whether or not a given right carries with it the auxiliary right of constraint and is, therefore, a perfect right.[64] Fenwick concludes that for Vattel, the voluntary law of nations remains to the end a deductive and theoretical system.[65] Moreover, Vattel explains that in addition to the voluntary law of nations there exists the conventional law, which is the result of the treaties or accords into which nations may enter. However, because treaties only bind those who are parties to them, the conventional law of nations is not a universal law but a droit particulier (a particular law). Finally, there are also certain rules observed by nations and characterized by their long usage which constitute the customary law of nations.[66] Vattel notes that the details of this law do not belong “to a systematic treatise on the law of nations.” In so far as these customs are useful and reasonable, they are binding upon nations which have given their implied consent to them; but if they contain anything which is unjust or unlawful, they are of no force, since nothing can oblige a nation to violate the natural law.[67]

In classifying the different types of laws of nations, Vattel follows the ideas put forward by Wolff.[68] However, he distances himself from his teacher when he repudiates Wolff’s derivation of the voluntary law of nation.[69] In this regard, Wolff had developed the idea of a civitas maxima, understood as an overarching authority instituted by nature itself in which all nations of the world would be members.  It is that universal civil society which is presumed to have accepted the voluntary law of nations and thus legitimized it.[70] Vattel rejects this idea of civitas maxima and argues that “This idea does not satisfy me; nor do I think the fiction of such a republic either admissible in itself, or capable of affording sufficiently solid grounds on which to build the rules of the universal law of nations, which shall necessarily claim the obedient acquiescence of sovereign States.”[71] His idea on state independence did not allow Vattel to accept an authority above the nation. F.C. Ruddy observes: “Instead of a civitas maxima Vattel acknowledged that each state was independent of every other state, to be regarded as a free individual living in a state of nature, and recognizing no laws other than nature’s and God’s.”[72]

Vattel’s The Law of Nations proposes that there exists a society of nations among which there is an agreement to accept the voluntary law of nations as a rule of law to regulate their relations.[73] As P.P. Remec states, “Vattel was of course aware that there is no actual proof for such an agreement among nations. But since the very existence of the society of mankind postulates such an agreement, Vattel maintains that this consent must be presumed as given voluntarily.” Thus, by attempting to explain the basis for the voluntary law of nations, Vattel relies on the fiction of a presumed consent among the members of the society of nations instead of relying upon the fiction of the civitas maxima.[74]

Vattel paid particular attention to issues involving neutrality and neutral rights.  Vattel defines the requirements of neutrality broadly. He explains that neutral states have to avoid partiality toward or against singular belligerents, and that neutral states cannot undertake to aid one side or another unless there is a prior obligation.

According to Vattel, the structure of the law of nations made neutral rights essential to the survival of international society.  For Vattel, it is the commercial interests of states that, in the absence of a civitas maxima, support the maintenance of the international order. Thus, the role of neutral states, according to Vattel, is to sustain international trade in the face of interstate conflict. Consequently, Vattel maintains that neutral trade cannot be sacrificed to the interests of belligerents and notes that “it is certain, as they have no part in my quarrel, they are under no obligation to renounce their commerce for the sake of avoiding to supply my enemy with the means of carrying on the war against me.”’[75] Indeed, Vattel insists, in contrast to the view that a state that endeavored to aid a belligerent through trade could no longer be considered neutral, that commerce between a belligerent and a neutral power is legitimate if it results from a prior obligation or even from mere custom.

Vattel’s arguments about the innocent passage of troops through a neutral territory are fundamental for understanding his conception of neutrality – and an example of the apparent inconsistencies and ambiguities of thought, which his critics have pointed out. He begins by declaring that innocent passage is an obligation “due to all nations with whom a state is at peace” and “this duty extends to troops as well as to individuals.”[76] However, this principle is then subordinated to a condition which challenges his first premise. He states: “But it rests with the sovereign of the country to judge whether the passage be innocent; and it is very difficult for that of an army to be entirely so.”[77] And he adds that since “…the passage of troops, and especially that of a whole army, is by no means a matter of indifference, he who desires to march his troops through a neutral country, must apply for the sovereign’s permission.”[78] Thus, innocent passage is no longer an obligation but a discretionary power of the neutral state. Vattel argues that “if the neutral sovereign has good reasons for refusing a passage, he is not obliged to grant it, the passage in that case being no longer innocent. In all doubtful cases, we must submit to the judgment of the proprietor [. . .], and must acquiesce in his refusal, even though we think it unjust.”[79]

However, Vattel advances two exceptions to this right to refuse passage. First, if the refusal of the neutral state is manifestly unjust, one can force the passage.[80] But Vattel raises an objection to his own exception: “[I]f he who requires the passage is to be the judge of its innocence, he will admit none of the reasons brought against it; and thus a door is opened to continual quarrels and hostilities. The tranquility, therefore, and the common safety of nations, require that each should be mistress of her own territory, and at liberty to refuse every foreign army an entrance, when she has not departed from her natural liberties in that respect, by treaties.”[81] Then, Vattel forgets his own objection and moves to conclude that “if, on such an occasion, a passage be forced, he who forces it will not be so much blamed as the nation that has indiscreetly subjected herself to this violence.”[82]

Vattel’s second exception relies on an “urgent and absolute necessity.”[83] However, even in such circumstances, one should first request a passage.[84] Once this condition has been met, the passage can be forced. The consequences he draws are plainspoken for “extreme necessity may even authorize the temporary seizure of a neutral town [. . .] with a view to cover ourselves from the enemy.”[85] This conclusion appears to be at odds his previous developments on the innocent nature of such passage. After several paragraphs written in the same vein, Vattel concludes that “finally, as we are not bound to grant even an innocent passage except for just causes, we may refuse it to him who requires it for a war that is evidently unjust,—as, for instance, to invade a country without any reason, or even colourable pretext.[86]

 

Impact and Criticism

Vattel’s treatment of neutrality evidences again the pivotal role he attributes to the state. Indeed, the central role of the state also explains the recurring ambiguity that runs through Vattel’s work. The ambiguity appears to stem from his ambition to reconcile power and justice or to “unite the maxims of sound policy with those of justice and equity.”[87]

As La Pradelle observes, “the main reason for his authority does not lie within the originality of his thought, but rather within the reasonable character of the solutions that he offers.”[88] The unprecedented success of Vattel’s workduring the 18th century and beyond, especially in the United States, is clear evidence of the immense impact Vattel had in the development of international law.  Koskenniemi notes, “it was a ‘realistic’ book, especially useful for diplomats and practitioners, not least because it seemed to offer such compelling rhetoric for the justification of most varied kinds of state action.”[89]

Most criticism about Vattel revolves around the idea that Vattel’s success derives from the many ambiguities and contradictions found in his work. In this regard, Lauterpacht, for example, states that Vattel showed an “elegant manner of evasion.”[90] Furthermore, whereas Nussbaum, referred to “the striking ambiguity of his formulas and […] the inconsistency of many of his conclusions,”[91] White notes that, “it is part of his charm (and no doubt of his lasting influence) that he contains inconsistent arguments that can be used to support contradictory policies.”[92]

Vattel’s legacy is significant. As P.F. Butler suggests, Vattel “…recognized the major components of political life that were identified in eighteenth-century Europe: the sovereign, the individual, the transnational moral order, and property. He also dealt with these components in a way that settled their relative moral significance. Acceptance of the general thrust of his arguments contributed to the maintenance of the balance of power system.”[93] Moreover, the link of the words “sovereignty” and “independence” found in Vattel’s work has been maintained into the present time by a large number of international lawyers. Indeed as A. Hurrell states, “…it is Vattel’s emphasis on the absolute independence of states that was the most significant characteristic of his writing.”[94]

But perhaps most importantly is the fact that Vattel’s vision of international law has been dominant ever since the publication of his masterpiece and has persisted into the present. Vattel’s model has been challenged by international lawyers calling for a new international legal order that relates better to contemporary reality. However, as Vattel envisioned it, the world is, in legal terms, still fundamentally a society of sovereign, independent states.

 

---

 

---

For Further Reading

BIBLIOGRAPHY

PRIMARY SOURCE:

Emer De Vattel, The Law of Nations, or, Principles of The Law Of Nature, Applied To The Conduct And Affairs of Nations And Sovereigns, With Three Early Essays on The Origin and Nature of Natural Law and on Luxury (Be´La Kapossy & Richard Whatmore eds., Liberty Fund 2008).

MORE READINGS:

Chetail, Vincent & Haggenmacher , Peter. (eds.), Vattel’s International Law from a XXIst Century Perspective (Leiden: Martinus Nijhoff Publishers, 2011).

Chetail, Vicent & Dupuy, P.M. (eds.), The Roots of International Law (Boston/Leiden: Martinus Nijhoff Publishers, 2013).

Daston, L. and Stolleis, M. (eds.), Natural Law and Laws of Nature in Early Modern Europe: Jurisprudence, Theology, Moral and Natural (Farnham: Ashgate, 2008).

Fenwick, Charles G. “The Authority of Vattel,” The American Political Science Review 7(3), 395-410. (1913).

Lapradelle, Albert de. Introduction to Vattel Emer de (1758, reprinted in 1983). Droit des gens ou principes de la loi naturelle appliqués à la conduite et aux affaires des Nations et des Souverains, (Geneva: Slatkine Reprints and Henry Dunant Institute under the patronage of the Carnegie Endowment for Peace, 1916).

Nakhimovsky, Isaac. “Vattel’s Theory of the International Order: Commerce and the Balance of Power in the Law of Nations,” History of European Ideas 33 (2007).

Nussbaum, Arthur.  A Concise History of the Law of Nations (New York: Macmillan, 1954).

Phillipson, Coleman. “Emmerich de Vattel,” in Macdonell, John. & Manson, Edward. (eds.). Great Jurists of the World (3 vol.), vol. 2, (Boston: Little Brown 1914).

Ruddy, F.S. International Law in the Enlightenment: The Background of Emmerich de Vattel’s Le Droit des Gens (Dobbs Ferry, U.S.: Oceana Publications, 1975).