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Common Rights of Mankind in Gentili, Grotius and Suárez

Published online by Cambridge University Press:  27 February 2017

Theodor Meron
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Extract

Students of the concept of erga omnes trace its antecedents to the early recognition of the right of humanitarian intervention, which they often attribute to Grotius. Professor Hersch Lauterpacht asserted that Grotius’s writings contained “the first authoritative statement of the principle of humanitarian intervention— the principle that exclusiveness of domestic jurisdiction stops when outrage upon humanity begins.” However, some of the other principal works on international law before the Peace of Westphalia (1648) reveal that the concept of community interests, and the modern right of humanitarian intervention it spawned, is pre-Grotian, that it appeared in the writings of Suárez and figured prominently in those of its true progenitor, the earlier Gentili.

Type
Editorial Comments
Information
American Journal of International Law , Volume 85 , Issue 1 , January 1991 , pp. 110 - 116
Copyright
Copyright © American Society of International Law 1991

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References

1 See Charney, Third State Remedies in International Law, 10 MlCH. J. Int’l L. 57, 61 (1989); T. Meron, Human Rights and Humanitarian Norms as Customary Law 188–90 (1989).

2 See, e.g., Edwards, The Law of War in the Thought of Hugo Grotius, 19 J. Pub. L. 371, 396–97 (1970).

3 Lauterpacht, The Grotian Tradition in International Law, 23 Brit. Y.B. Int’l L. 1, 46 (1946).

4 The 1579 Vindiciae contra tyrannos asserted that “it is the right and duty of princes to interfere in behalf of neighbouring peoples who are oppressed on account of adherence to the true religion, or by any obvious tyranny.” W. Dunning, A History of Political Theories from Luther to Montesquieu 55 (1905) (footnote omitted).

5 2 A. Gentili, De jure belli libri tres, chs. XVI and XXV (Carnegie ed., J. C. Rolfe trans. 1933). (This is the 1931 translation of the 1612 edition. Prima commentatio de jure belli was published in 1588, the second and third parts in 1589. The three books appeared, as a new work, in 1598 under the title De jure belli libri tres. See Phillipson, Introduction to id. at 14a. Regarding Gentili’s other writings, see 1 L. Oppenheim, International Law 91 (H. Lauterpacht ed. 1955).)

The Grotian scholar Peter Haggenmacher traces the antecedents of the principle of humanitarian intervention even further back, to the “altruistic” 13th-century school of Pope Innocent IV and to the Scholastic writers. Haggenmacher, Sur un passage obscur de Grotius, 51 Revue d’Hlstoire du Droit 295, 301, 304, 313 (1983). Haggenmacher’s principal work on Grotius is Grotius et la doctrine de la guerre juste (1983).

6 Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 ICJ Rep. 3 (Judgment of Feb. 5).

7 Id. at 32. See generally T. Meron, supra note 1, at 191–201.

8 The same thing [giving illustrations from history] was attempted on a larger scale, and by referring a great number of examples to some general statements, … by Alberico Gentili. Knowing that others can derive profit from Gentili’s painstaking, as I acknowledge that I have, I leave it to his readers to pass judgement on the shortcomings of his work as regards method of exposition, arrangement of matter, delimitation of inquiries, and distinctions between the various kinds of law. This only I shall say, that in treating controversial questions it is his frequent practice to base his conclusions on a few examples, which are not in all cases worthy of approval, or even to follow the opinions of modern jurists, formulated in arguments of which not a few were accommodated to the special interests of clients, not to the nature of that which is equitable and upright.

… Gentili outlined certain general classes [of just or unjust war], in the manner which seemed to him best; but he did not so much as refer to many topics which have come up in notable and frequent controversies.

2 H. Grotius, De jure belli ac pacis libri tres, Prolegomena, para. 38 (Carnegie ed., F. Kelsey trans. 1925) (1625). Kelsey translated the 1646 edition rather than the first, 1625, edition of Grotius’s work.

Regarding the debt of Grotius to Gentili, Nussbaum, invoking Reiger, observes that the former “even borrowed several of Gentili’s miscitations.” A. Nussbaum, A Concise History of the Law of Nations 108, 331 n.135 (1954).

Haggenmacher, in his erudite essay Grotius and Gentili: A Reassessment of Thomas E. Holland’s Inaugural Lecture, in Hugo Grotius and International Relations 133, 149–51 (H. Bull, B. Kingsbury & A. Roberts eds. 1990), describes Grotius’s frequent repetition of mistakes made by Gentili in quoting classical sources. Haggenmacher observes that “Grotius’ very awareness of the advance he had effected may have induced him to minimize his debt to [his predecessors’] works. This accounts for his marked reservations towards them, no exception being made even for the writer he mentions last in the Prolegomena and values most… .” Id. at 175–76.

9 H. Grotius, supra note 8, bk. II, ch. XXV, pts. IV–V.

10 Id., pt. VIII(1).

12 Id.

13 Id., pt. VIII(2). See infra text at note 36.

14 See Edwards, supra note 2, at 391–95; Lauterpacht, supra note 3, at 45.

15 H. Grotius, supra note 8, bk. II, ch. XXV, pt. VIII(4).

16 Id., ch. XX, pt. XL(1) (“Of Punishments”).

17 E.g., in his reliance on Hercules, who liberated certain lands from “tyrants.” Id., pt. XL(2). Compare A. Gentili, supra note 5, at 75: “Hercules, the subduer of tyrants and monsters.” The resemblance is even more striking in the following reference to Seneca. Grotius: “Says Seneca: ‘If a man does not attack my country, but yet is a heavy burden to his own, and although separated from my people he afflicts his own, such debasement of mind nevertheless cuts him off from us.’ ” H. Grotius, supra, pt. XL(3). Compare A. Gentili, supra:

Add besides the golden words of Seneca: “Whatever the bond of affection by which any one was united to me, his violation of the common law of mankind has brought it to naught. If such a man does not attack my country, but is troublesome to his own land, and although remote from my nation harasses his own, yet that depravity of mind cuts him off from me none the less… .”

See also infra text at note 36.

18 Richard Posner has observed that in the classical and medieval periods, “[t]he dominant theory of literary creativity … was creative imitation: the imitator was free to borrow as long as he added to what he borrowed. The modern equation of creativity to originality is a legacy of the Romantic era, with its cult of individual expression.” R. Posner, Law and Literature 346 (1988) (footnotes omitted).

Haggenmacher explains Grotius’s predilection for borrowing material from Gentili without acknowledgment:

Such practices, which today seem surprising and rather questionable, were not then exceptional. Humanist vanity and “elegance” induced scholars to hide their real, direct sources, in order to show only the pure wisdom of antiquity, which was of course supposed to have been drunk at its very spring, not from some intermediary vessel. Moreover, a generally accepted tendency prevailed among lawyers to muster as many references as possible in order to bring home a point; it was therefore understood, and widely practised, that in addition to the real source of a quotation one mentioned all the authors referred to therein, without checking them and without specifying which one was the key to the others. Grotius was both a humanist and a lawyer, so there was nothing unusual about his method, even though his work was obviously far removed from standard legal practice. No doubt Gentili had resorted to similar expedients. It should also be pointed out that the relevant books were sometimes difficult to obtain.

Haggenmacher, supra note 8, at 148.

19 2 F. Suárez, Selections from Three Works 817 (Carnegie ed., G. Williams, A. Brown & J. Waldron trans. 1944) (1612, 1613, 1621).

20 Id.

21 Id.

22 Id.

23 Id. at 824.

24 Id.

25 Id.

26 A whole section of chapter 12 of Grotius’s Dejure praedae, which became Mare liberum, was drawn from Gentili’s De jure belli. W. Knight, The Life and Works of Hugo Grotius 94 (1925), cited by Haggenmacher, supra note 8, at 148 & n.54.

Mare liberum was written in 1604 and published posthumously in 1868. 1 L. Oppenheim, supra note 5, at 92 & n.1. For pre-Grotian expressions of support for the freedom of the seas, see E. Nys, Les Origines du droit International 381–82 (1894). Nys did not mention Gentili.

27 A. Gentili, supra note 5, at 90, 92. At a later period (1605–1608), however, as advocate for Spain before the English Court of Admiralty, Gentili did not dissent from Venetian and Genovese claims to jurisdiction over a maritime belt extending 100 miles from the coast. See A. Gentili, Advocatio Hispanica, discussed by Abbott, Alberico Gentili and his Advocatio Hispanica, 10 AJIL 737, 743–44 (1916).

28 A. Gentili, supra note 5, at 122.

29 Id.

30 Id. at 123.

31 Id. at 124.

32 Id.

33 Id. (emphasis added).

34 Id. at 58 (ch. XIII). Compare H. Grotius, supra note 8, bk. II, ch. XXV, pt. I.

35 See text at note 9 supra. For example: “But the Corinthians spoke in the following unequivocal terms at Athens: ‘We openly say that no one ought to be restrained from punishing his own dependents.’ ” A. Gentili, supra note 5, at 74. Compare Grotius: “In Thucydides the Corinthians find it just that ‘each party should punish its own subjects’.” H. Grotius, supra note 8, bk. II, ch. XXV, pt. VIII(1).

“There is also the case of Constantine, who aided the Romans against Maxentius … . We defend sons against fathers who are unjust.” A. Gentili, supra, at 75. Compare Grotius: “In conformity with this principle Constantine took up arms against Maxentius.” H. Grotius, supra, pt. VIII(2).

36 Compare H. Grotius, supra text at note 13.

37 A. Gentili, supra note 5, at 74.

38 Id. at 75.

39 Id.

40 Id. at 76.

41 Id.

42 Haggenmacher, supra note 5, at 313 & n.78.

43 E.g., F. Victoria, The Second Relectio on the Indians, or on the Law of War Made by the Spaniards on the Barbarians, in De Indis et de iure belli relectiones 163, 185, para. 52 (Carnegie ed., J. P. Bate trans. 1917) (1557).

44 A. Gentili, supra note 5, at 257 (emphasis added). Although mentioning the argument for the legality of rape on the ground that “it is not inconsistent with the law of war that everything which belongs to the enemy should be at the disposition of the victor,” Grotius reasoned that, being unrelated to either security or punishment, rape “should consequently not go unpunished in war any more than in peace. The latter view is the law not of all nations, but of the better ones.” H. Grotius, supra note 8, bk. III, ch. IV, pt. XIX(I).

45 Although not without some equivocation, Gentili made a contribution to the emancipation of slaves by arguing that “when a pregnant slave girl is sold, her offspring is not understood to have been sold… . [T]he foetus and the mother are in reality two persons, with different rights,” which implied that the child of a slave woman would be born free. A. Gentili, supra note 5, at 209. Contrast Grotius (discussing captives):

Not only do the prisoners of war themselves become slaves, but also their descendants for ever, that is to say those who are born of a slave mother after her enslavement. This is what Marcianus said, that by the law of nations those become our slaves who are born of our slave women… . Tacitus said that [the] womb was subject to slavery.

… [T]he effects of this law are unlimited …. There is no suffering which may not be inflicted with impunity upon such slaves ….

H. Grotius, supra note 8, bk. III, ch. VII, pts. II–III(1).

46 Haggenmacher, supra note 8, at 168.

47 See id. at 133, 173–76.