Lecture 2_28.2 PDF

Rechtswissenschaftliche Fakultät The War in Due Form Emer de Vattel (1714-1767) Contemporary History of Law FS 2024 Lecture n. 2 Rechtswissenschaftliche Fakultät Guest Lecture Wednesday 6.03 Dr. Tania Atilano (UZH) The mi...

Rechtswissenschaftliche Fakultät The War in Due Form Emer de Vattel (1714-1767) Contemporary History of Law FS 2024 Lecture n. 2 Rechtswissenschaftliche Fakultät Guest Lecture Wednesday 6.03 Dr. Tania Atilano (UZH) The military trial against Maximilian of Habsburg in 1867  Rechtswissenschaftliche Fakultät Outline of the Lesson Natural Law in the Enlightenment Natural Law in Switzerland in the 18th century Neuchâtel: Emer de Vattel Constitution Law of Nations Modes of terminating disputes between Nations War in due Form Enemies of Mankind Seite 3  Rechtswissenschaftliche Fakultät Overview - Enlightenment The Age of Reason There was no single and unified Enlightenment: French Enlightenment, the Scottish Enlightenment and the English, German, Swiss or American Enlightenment. Keywords: use and celebration of reason Through reason, human beings understand the universe and improve their human condition. Aims of rational humanity: knowledge, freedom, and happiness. French “philosophes” (Voltaire, Rousseau, Montesquieu, Diderot) Diderot’s “Encyclopédie” (1751-77): compilation of human knowledge American and French Revolutions Seite 4  Rechtswissenschaftliche Fakultät Emer de Vattel (1714-1767) Born in Couvet (Neuchâtel) in 1714 Studied in Geneva He was looking for a diplomatic position, in Prussia and in Saxony In 1749, Vattel was assigned to Bern as Minister Plenipotentiary for Saxony In 1759 Augustus III appointed Vattel chief adviser of the Government of Saxony on foreign office 5 Rechtswissenschaftliche Fakultät In 1758 he published Four years before Le contrat sociale of Rousseau Ten years after Esprit de Lois of Montesquieu 6 Rechtswissenschaftliche Fakultät About Switzerland “I was born in a country of which liberty is the soul, the treasure, and the fundamental law; and my birth qualifies me to be the friend of all nations” 7 Rechtswissenschaftliche Fakultät “The immense and enduring acclaim enjoyed by The Law of Nations should come as no surprise. Vattel was the first to have described the law of nations as a set of rules governing the conduct of sovereign States both in times of peace and in times of war. In other words, he was the man who defined the paradigm of international law that was to hold sway over the following two centuries”. (E. Jouannet, Emer de Vattel (1714-1767), in The Oxford Handbook of the History of International Law, 2012, p. 1119) Seite 8  Rechtswissenschaftliche Fakultät Fundamental aspects of Le Droit des gens He applied a strictly inter-state perspective. This means that the law of nations is specifically the law governing relations between States a. he relegates the individual to the internal sphere of the States b. international society is truly a society of sovereign, equal and independent States. Juridically equal, each bound by the fundamental obligation of self- preservation c. furthermore, by virtue of their sovereign will, only States have the capacity of determining the applicability of international law rights and obligations (E. Jouannet, Emer de Vattel (1714-1767), in The Oxford Handbook of the History of International Law, 2012, p. 1119-1120) 9 Rechtswissenschaftliche Fakultät What is the constitution of a State? “The fundamental regulation that determines the manner in which the public authority is to be executed, is what forms the constitution of the state. In this is seen the form in which the nation acts in quality of a body-politic,—how and by whom the people are to be governed,— and what are the rights and duties of the governors. This constitution is in fact nothing more than the establishment of the order in which a nation proposes to labour in common for obtaining those advantages with a view to which the political society was established. The perfection of a state, and its aptitude to attain the ends of society, must then depend on its constitution: consequently the most important concern of a nation that forms a political society, and its first and most essential duty towards itself, is to chuse the best constitution possible, and that most suitable to its circumstances. When it makes this choice, it lays the foundation of its own preservation, safety, perfection, and happiness:—it cannot take too much care in placing these on a solid basis”. Seite 10 Rechtswissenschaftliche Fakultät The constitution and laws of a state are the basis of the public tranquillity, the firmest support of political authority, and a security for the liberty of the citizens. But this constitution is a vain phantom, and the best laws are useless, if they be not religiously observed: the nation ought then to watch very attentively, in order to render them equally respected by those who govern, and by the people destined to obey. To attack the constitution of the state, and to violate its laws, is a capital crime against society; and if those guilty of it are invested with authority, they add to this crime a perfidious abuse of the power with which they are intrusted. The nation ought constantly to repress them with its utmost vigour and vigilance, as the importance of the case requires. Seite 11 Rechtswissenschaftliche Fakultät “all these affairs being solely a national concern, no foreign power has a right to interfere in them, nor ought to intermeddle with them otherwise than by its good offices, unless requested to do it, or induced by particular reasons. If any intrude into the domestic concerns of another nation, and attempt to put a constraint on its deliberations, they do it an injury”. https://oll.libertyfund.org/title/whatmore-the-law-of-nations-lf-ed Seite 12 Rechtswissenschaftliche Fakultät What is the Law of Nations? “The Law of Nations, though so noble and important a subject, has not hitherto been treated of with all the care it deserves. The greater part of mankind have therefore only a vague, a very incomplete, and often even a false notion of it. The generality of writers, and even celebrated authors, almost exclusively confine the name of the Law of Nations to certain maxims and customs which have been adopted by different nations, and which the mutual consent of the parties has alone rendered obligatory on them. This is confining within very narrow bounds a law so extensive in its own nature, and in which the whole human race are so intimately concerned; it is at the same time a degradation of that law, in consequence of a misconception of its real origin”. Seite 13 Rechtswissenschaftliche Fakultät “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 citizen: 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. If the conductors of states, if all those who are employed in public affairs, condescended to apply seriously to the study of a science which ought to be their law, and, as it were, the compass by which to steer their course, what happy effects might we not expect from a good treatise on the law of nations! We every day feel the advantages of a good body of laws in civil society:—the law of nations is, in point of importance, as much superior to the civil law, as the proceedings of nations and sovereigns are more momentous in their consequences than those of private persons” Seite 14 Rechtswissenschaftliche Fakultät Nations: free, independent and equal “Since nations are free, independent, and equal,—and since each possesses the right of judging, according to the dictates of her conscience, what conduct she is to pursue in order to fulfil her duties,—the effect of the whole is, to produce, at least externally and in the eyes of mankind, a perfect equality of rights between nations, in the administration of their affairs and the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definitive judgment; so that whatever may be done by any one nation, may be done by any other; and they ought, in human society, to be considered as possessing equal rights” Seite 15 Rechtswissenschaftliche Fakultät Independence “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” Seite 16 Rechtswissenschaftliche Fakultät Equality “Since men are naturally equal, and a perfect equality prevails in their rights and obligations, as equally proceeding from nature – Nations composed of men, and considered as so many free persons living together in a State of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not in this respect produce any difference. A dwarf is as much a man as a giant; a small republic is no less a sovereign State than the most powerful kingdom” Seite 17 Rechtswissenschaftliche Fakultät Sovereignty “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” “sovereignty” = exclusivity of authority. Seite 18 Rechtswissenschaftliche Fakultät Non-Intervention II Book: “Of a Nation Considered in Its Relation to Others” Vattel laid down the general rule prohibiting interference in the internal affairs of a nation But in the case of a domestic struggle amounting to a full scale civil war: “every foreign power has a right to succour an oppressed people who implore their assistance” Seite 19 Rechtswissenschaftliche Fakultät “But if the prince, by violating the fundamental laws, gives his subjects a legal right to resist him,—if tyranny becoming insupportable obliges the nation to rise in their own defence,—every foreign power has a right to succour an oppressed people who implore their assistance. […] Whenever therefore matters are carried so far as to produce a civil war, foreign powers may assist that party which appears to them to have justice on its side. He who assists an odious tyrant,—he who declares for an unjust and rebellious people,—violates his duty. But when the bands of the political society are broken, or at least suspended, between the sovereign and his people, the contending parties may then be considered as two distinct powers; and since they are both equally independent of all foreign authority, nobody has a right to judge them. Either may be in the right; and each of those who grant their assistance may imagine that he is acting in support of the better cause. It follows then, in virtue of the voluntary law of nations [..] that the two parties may act as having an equal right, and behave to each other accordingly, till the decision of the affair”. Seite 20 Rechtswissenschaftliche Fakultät The Political Equilibrium (Balance of Power) “Europe forms a political system, an integral body, closely connected by the relations and different interests of the nations inhabiting this part of the world. […] The continual attention of sovereigns to every occurrence, the constant residence of ministers, and the perpetual negotiations, make of modern Europe a kind of republic, of which the members— each independent, but all linked together by the ties of common interest—unite for the maintenance of order and liberty. Hence arose that famous scheme of the political balance, or the equilibrium of power; by which is understood such a disposition of things, as that no one potentate be able absolutely to predominate, and prescribe laws to the others” Seite 21 Rechtswissenschaftliche Fakultät Mode of terminating disputes between Nations Seite 22 Rechtswissenschaftliche Fakultät Concept of Injury “The disputes that arise between nations or their rulers, originate either from contested rights or from injuries received. A nation ought to preserve the rights which belong to her; and the care of her own safety and glory forbids her to submit to injuries. But in fulfilling the duty which she owes to herself, she must not forget her duties to others. These two views, combined together, will furnish the maxims of the law of nations respecting the mode of terminating disputes between different states” Seite 23 Rechtswissenschaftliche Fakultät 1) Amicable accommodation 2) Compromise 3) Mediation 4) Arbitration 5) Conferences and congresses Seite 24 Rechtswissenschaftliche Fakultät 1. Amicable accommodation ”First, an amicable accommodation.—Let each party coolly and candidly examine the subject of the dispute, and do justice to the other; or let him whose right is too uncertain, voluntarily renounce it. There are even occasions when it may be proper for him who has the clearer right, to renounce it, for the sake of preserving peace,—occasions, which it is the part of prudence to discover. To renounce a right in this manner, is not abandoning or neglecting it. People are under no obligation to you for what you abandon: but you gain a friend in the party to whom you amicably yield up what was the subject of a dispute” Seite 25 Rechtswissenschaftliche Fakultät 2. Compromise “Compromise is a second method of bringing disputes to a peaceable termination. It is an agreement, by which, without precisely deciding on the justice of the jarring pretensions, the parties recede on both sides, and determine what share each shall have of the thing in dispute, or agree to give it entirely to one of the claimants on condition of certain indemnifications granted to the other” Seite 26 Rechtswissenschaftliche Fakultät 3. Mediation “The office of mediator requires as great a degree of integrity, as of prudence and address. He ought to observe a strict impartiality; he should soften the reproaches of the disputants, calm their resentments, and dispose their minds to a reconciliation. His duty is to favour well-founded claims, and to effect the restoration, to each party, of what belongs to him: but he ought not scrupulously to insist on rigid justice. He is a conciliator, and not a judge: his business is to procure peace; and he ought to induce him who has right on his side to relax something of his pretensions, if necessary, with a view to so great a blessing” Seite 27 Rechtswissenschaftliche Fakultät 4. Arbitration “When sovereigns cannot agree about their pretensions, and are nevertheless desirous of preserving or restoring peace, they sometimes submit the decision of their disputes to arbitrators chosen by common agreement. When once the contending parties have entered into articles of arbitration, they are bound to abide by the sentence of the arbitrators: they have engaged to do this; and the faith of treaties should be religiously observed” Seite 28 Rechtswissenschaftliche Fakultät 5. Conferences and congresses “Conferences and congresses are therefore a mode of conciliation, which the law of nature recommends to nations, as well calculated to bring their differences to an amicable termination. Congresses are assemblies of plenipotentiaries appointed to find out means of conciliation, and to discuss and adjust the reciprocal pretensions of the contending parties. To afford the prospect of a happy issue of their deliberations, such meetings should be formed and directed by a sincere desire of peace and concord” Seite 29 Rechtswissenschaftliche Fakultät War in due forme/The regular war He stands at the crossroads between the centuries’ old tradition of just war and the newly emergent discipline of international law. Central points: 1) Definition of war 2) Right of making war 3) The regular war 4) Defensive and offensive war Seite 30 Rechtswissenschaftliche Fakultät What is war? “War is that state in which we prosecute our right by force. We also understand, by this term, the act itself, or the manner of prosecuting our right by force: but it is more conformable to general usage, and more proper in a treatise on the law of war, to understand this term in the sense we have annexed to it” Seite 31  Rechtswissenschaftliche Fakultät The formalities of war The right to make war is founded on the right of nations to maintain the liberty and independence necessary to the cultivation of their own preservation and perfection Vattel explains that a war can only be just when it is ‘a lawful war in due form’ The requirement of public authority and public declaration These formalities are primarily the demand for just satisfaction, and a declaration of war on the part of the nation who attacks Sovereigns may only use force proportional to the achievement of their end but it is impossible to decide in advance which means might be required in any given specific case It is only possible to establish general rules which nations are bound to observe in war These rules concern on one hand the person of the enemy, and his possessions on the other Seite 32  Rechtswissenschaftliche Fakultät What is a lawful war in due form “Those formalities of which the necessity is deducible from the principles and the very nature of war, are the characteristics of a lawful war in due form (justum bellum). Grotius says, that, according to the law of nations, two things are requisite to constitute a solemn or formal war—first, that it be, on both sides, made by the sovereign authority,— secondly, that it be accompanied by certain formalities. These formalities consist in the demand of a just satisfaction (rerum repetitio), and in the declaration of war, at least on the part of him who attacks;— for defensive war requires no declaration, nor even, on urgent occasions, an express order from the sovereign. In effect, these two conditions are necessarily required in every war which shall, according to the law of nations, be a legitimate one, that is to say, such a war as nations have a right to wage. The right of making war belongs only to the sovereign; and it is only after satisfaction has been refused to him, and even after he has made a declaration of war, that he has a right to take up arms. A war in due form is also called a regular war, because certain rules, either prescribed by the law of nature, or adopted by custom, are observed in it” Seite 33 Rechtswissenschaftliche Fakultät The Just War Injury, either already committed or threatened Objects of a lawful war: to defend ourselves, or to protect ourselves from injury, by repelling unjust violence; to recover what belongs, or is due to us; to provide for our future safety by punishing the aggressor or offender Seite 34 Rechtswissenschaftliche Fakultät Defensive War self-defence Seite 35 Rechtswissenschaftliche Fakultät Offensive War against unjust violence requires no proof a resort to war is only justified when peaceful alternatives for the resolution of the conflict in question are exhausted Seite 36 Rechtswissenschaftliche Fakultät Offensive War The punishment of a nation should also be based on justice and necessity. Nations derive the right to punish not from their obligation to cultivate the common society of mankind, but from their right to provide for their own security Seite 37 Rechtswissenschaftliche Fakultät Ius in bello Non-combatant immunity: Women, children, old men, sick persons as well as public ministers of religion and men of letters – their life is very remote from military affairs, and they have to be treated as ‘enemies who make no resistance’ No one has a right ‘to maltreat their persons or use any violence against them, much less to take away their lives’ Seite 38  Rechtswissenschaftliche Fakultät Ius in bello The right to kill enemies is thus restricted to men who bear arms, or are capable of bearing them When an enemy submits and lays down his arms, one can no longer kill him with justice While prisoners may be put into confinement and even fettered when they might possibly escape, they are not to be treated harshly, because one should always remember ‘that they are men, and unfortunate’ Seite 39 Rechtswissenschaftliche Fakultät “Of the Right of War, with regard to Things belonging to the Enemy” “For whatever cause a country is ravaged, we ought to spare those edifices which do honour to human society, and do not contribute to increase the enemy’s strength,—such as temples, tombs, public buildings, and all works of remarkable beauty. What advantage is obtained by destroying them? It is declaring one’s self an enemy to mankind, thus wantonly to deprive them of these monuments of art and models of taste […]” Seite 40 Rechtswissenschaftliche Fakultät “In bombarding towns, it is difficult to spare the finest edifices. At present we generally content ourselves with battering the ramparts and defences of a place. To destroy a town with bombs and red-hot balls, is an extremity to which we do not proceed without cogent reasons. But it is nevertheless warranted by the laws of war, when we are unable by any other mode to reduce an important post, on which the success of the war may depend, or which enables the enemy to annoy us in a dangerous manner. It is also sometimes practised when we have no other means of forcing an enemy to make war with humanity, or punishing him for some instance of outrageous conduct. But it is only in cases of the last extremity, and with reluctance, that good princes exert a right of so rigorous a nature”. Seite 41  Rechtswissenschaftliche Fakultät Out of the law of nations? The Concept of Enemy of Mankind Historical perspective: Communis hostis omnium Hostis humani generi Pirats/ Corsairs Legal argument for the enemy of mankind State? Group? Authority No application of the rules of the law of nations Seite 42 Rechtswissenschaftliche Fakultät The Concept of Enemy of Mankind A nation cannot punish person for faults committed out of its territories, except: - such as affect the common safety of mankind The enemies of mankind are the disturbers of the public peace Seite 43 Rechtswissenschaftliche Fakultät “Although the justice of each nation ought in general to be confined to the punishment of crimes committed in its own territories, we ought to except from this rule those villains, who, by the nature and habitual frequency of their crimes, violate all public security, and declare themselves the enemies of the human race. Poisoners, assassins, and incendiaries by profession, may be exterminated wherever they are seized; for they attack and injure all nations, by trampling under foot the foundations of their common safety. Thus pirates are sent to the gibbet by the first into whose hands they fall. If the sovereign of the country where crimes of that nature have been committed, reclaims the perpetrators of them in order to bring them to punishment, they ought to be surrendered to him, as being the person who is principally interested in punishing them in an exemplary manner. And as it is proper to have criminals regularly convicted by a trial in due form of law, this is a second reason for delivering up malefactors of that class to the states where their crimes have been committed” Seite 44 Rechtswissenschaftliche Fakultät Of the disturbers of public peace “But those disturbers of the public peace,—those scourges of the earth, who, fired by a lawless thirst of power, or impelled by the pride and ferocity of their disposition, snatch up arms without justice or reason, and sport with the quiet of mankind and the blood of their subjects,—those monstrous heroes, though almost deified by the foolish admiration of the vulgar, are in effect the most cruel enemies of the human race, and ought to be treated as such. Experience shews what a train of calamities war entails even upon nations that are not immediately engaged in it. War disturbs commerce, destroys the subsistence of mankind, raises the price of all the most necessary articles, spreads just alarms, and obliges all nations to be upon their guard, and to keep up an armed force. He, therefore, who without just cause breaks the general peace, unavoidably does an injury even to those nations which are not the objects of his arms; and by his pernicious example he essentially attacks the happiness and safety of every nation upon earth. He gives them a right to join in a general confederacy for the purpose of repressing and chastising him, and depriving him of a power which he so enormously abuses. What evils does he not bring on his own nation, lavishing her blood to gratify his inordinate passions, and exposing her to the resentment of a host of enemies!” Seite 45