THE SHIELD OF ACHILLES (85 page)

Vitoria's successor as the pre-eminent Spanish explicator of international law, Francisco Suarez, wrote after the Peace of Augsburg and therefore dealt with the reality of an international society and its law. Though he was scarcely sympathetic to this development, we can learn a good deal from
his commentary about what his contemporaries regarded as the content of this law.

Suarez was born a Spanish aristocrat and became, like Vitoria, a professor of theology. In 1596, after the Spanish conquest of Portugal, Philip II arranged for the appointment of Suarez to the chair of theology at the Portuguese University of Coimbra. Unlike Vitoria in many respects, Suarez was a Jesuit, a prolific writer whose works in a nineteenth century edition fill twenty-eight volumes, and an aggressive polemicist. A great many biographies have been devoted to him, and his renown does not rest on his contributions to international law.
*

His most famous work is the
Defense of the Faith against the Errors of the Anglican Sect
(1613), commissioned by Pope Paul V. In the course of arguing that the pope possesses powers that include the right to put a heretic king to death in order to protect the Catholic faith, Suarez offered a novel argument: because political power arises from the sociability of man and therefore resides originally in the people, it must be delegated to the prince by “human law”; if the prince turns out to be a tyrant, the pope may assert the rights of the people. Because the source of the pope's power is divine and does not come from the people, this theory gives papal authority a certain supremacy over lay rulers.

It is interesting to note that it is just this move, this particular argument, that constitutes Suarez's principal contribution to international law. He is the first writer to show clearly the ambiguity in the term
ius gentium
, an ambiguity that often bedevils the first-year student of international law who must confront Article 38 of the statute setting up the jurisdiction of the International Court of Justice, which provides in part that the court will apply general principles of law common to all states. This could reasonably be taken to mean either the universal principles of international law, which must necessarily be common to all states, or principles of domestic law that states happen to have in common (it is the latter).

Suarez saw that
ius gentium
might be given either of two meanings: in one sense it is the law that all peoples and nations (
populi et gentes
) observe in their mutual relations (
inter se
); in another sense, it is the law that various states (
civitates vel regna
) observe within themselves (
intra se
). The first concept is, for Suarez, the proper
ius gentium
, and this distinction, so important for the development of international law, also supports the international application of Suarez's deprecation of the power of princes within the princely state. (Note that the Peace of Augsburg, which was otherwise so offensive to the Catholic Church because it replaced the medieval paradigm of a single European polity, was nevertheless crucial to Suarez's argument: Augsburg's recognition of the status of the princely state allowed Suarez to distinguish between the power held by the prince in trust to the State, and his dynastic, personal power.)

In his most famous passage—and one frequently characterized as a hymn to international law
²²
—Suarez sets out his view that the origin of international law lies in the society of states. If we read this passage carefully, however, and bear in mind his arguments in
The Defense of the Faith
, a somewhat less admiring view of the post-Augsburg world emerges than might at first appear.

Rather than exalting a new “world made of law,” in fact Suarez is eager to explain how natural law can account for legal events like the Peace of Augsburg, and the various practices of states that flow from their formal relationships. This enables him to demote, not exalt, the
ius gentium
(international law) as a mere supplement to natural law. The only treaties Suarez discusses are peace treaties: the observance of these he attributes to the law of nature because they (unlike the rest of international law) are the consti-tutional source of the law among states. Whether or not treaties are to be entered into in the first place Suarez carefully makes a mere matter of the
ius gentium
. By this characterization he ascribes the actions of the society of states to mere human law, and thus renders those actions susceptible to a superior theological judgment.

Thus so much of what is hailed in Suarez—and we must remember that his work in international law is a small part of the corpus of his writing—is truly important, but not quite in the way it is anachronistically praised.
²⁴
Suarez's commentary reflects the dramatic change in European public
affairs, not out of sympathy, however, but rather in an effort to contain and limit the significance of what has occurred.

This can be seen in Suarez's attitude toward what we would call today
humanitarian intervention
—the right of one state to use force to relieve the suffering inflicted on a people by its own state. Suarez clearly apprehends the new community of princely states and does not pretend that the medieval order of a single political jurisdiction still persists. Accordingly he writes that the “assertion made by some writers that sovereign kings have the power of avenging injuries done in any part of the world is entirely false, and throws into confusion all the orderly distinction of jurisdiction.”
²⁵
There is one situation, however, that does permit the prince to wage war without the pretext of an injury to his interests or an invitation from the state concerned and that is when “a state worshipping the one God inclines toward idolatry through the wickedness of its prince.” In this we hear the spirit of the Counter-Reformation, of which Suarez was a notable leader, and which was to provoke the Dutch revolt that marked a decisive movement away from the princely state and toward the kingly state. This revolt gave rise to the interpretive work of Ayala.

Balthazar Ayala was born in 1548 in Antwerp to a Spanish noble family. He served in the Spanish Netherlands during the Dutch rebellion and the savage repression of that rebellion by the Duke of Alba, and was auditor-general, a sort of military judge, in Philip II's armies. He published his book,
De Jure et Officis Bellicis et Disciplina Militaris
, in 1582; two years later he died, only thirty-six. Thus his entire adult life was spent in the service of Philip of Spain.

Philip II had effected the transition to the princely state, the most powerful in Europe, with deceptive ease. The abdication of his father, Charles V, amounted to the abandonment of the imperial constitutional model. Now Philip, with a dynastic state unencumbered by the Empire, with increasing revenues from the Americas and a dynamic military force, provided the model to which other princes looked. Ironically, the princely state was to receive mortal blows while in his hands, for he more than any other prince embodied two traits of that state that would be shed by the kingly state: first, even if the society of states no longer belonged to a particular sect, the princely state itself was intensely sectarian—that was the outcome of the settlement at Augsburg—and there was no constitutional state more sectarian than the Catholic regime in Madrid. Second, the princely state was dynastic, and although Charles's will had bifurcated the continental holdings of the Habsburgs, the realm inherited by Philip gave him responsibilities for a wealthy and self-confident territory with which
he had no national identification. He was seen as a Castilian, not as a Burgundian,
*
and he governed with a bureaucracy sent from Madrid. Both of these shortcomings came into play when he decided to divide the four existing bishoprics in the Netherlands into eighteen in order to combat heresy.

Philip's father had adopted a series of heresy laws in the Netherlands covering practically every conceivable offense against orthodoxy. In the forty years before the Dutch revolt, some 1,300 heretics had been executed. Philip, however, was even more inflexible in religious matters than his father. He changed the pattern of prosecutions, replacing impoverished Anabaptists as targets for repression with well-to-do Calvinists, and equating the crime of heresy with that of treason, thus leading to the confiscation of property as well as execution. When Egmont, who had fought so triumphantly on behalf of Philip's crown, led a mission of nobles from the Low Countries to Madrid to petition for a relaxation of the heresy prosecutions, Philip replied by letter: “As for the Inquisition, it is my intention that it should be carried out.” If, as Egmont argued, the executions merely created martyrs, then Philip advised that the executions should be carried out in secret. The velocity of the popular response to Philip's policies was proportionate to his attitude: it was total.

In Antwerp, Catholic images in churches were destroyed, and this practice spread to other cities. Revolt came the next year when two southern towns, Tournai and Valenciennes, were seized by Calvinists. At first Philip hesitated, but he eventually ordered a Spanish army under the Duke of Alba to suppress the insurrection. Alba instituted a reign of terror, immortalized by the Council of Blood set up five days after his arrival in Brussels in September 1567. That month Egmont himself was arrested, and the following June he was executed in the Brussels marketplace.
†
In the next six years, the tribunal condemned thousands of persons, of whom a significant number were executed. The citizens of besieged cities that surrendered to Alba were massacred. Then in 1574 the “Spanish Fury” occurred, when unpaid Spanish troops sacked Antwerp in a gruesome display that sickened Europe. Alba was recalled in 1576, but by then the Low Countries were in complete rebellion.

In this struggle, Ayala was a man committed to reinforcing the princely state. Unlike the theologians who were his predecessors, he fully accepted the Augsburg constitution of states and did not attempt to subordinate
those states to the papacy. In Ayala we see for the first time the notion that a war may be just from the point of view of both sides, a thoroughly statist view of the matter. In Ayala's opinion, it was not appropriate to discuss the “equity of the cause of a war between sovereign princes.” If such a war were lawfully conducted, it might be just from both perspectives.

In an interesting reversal of the events going on around him, Ayala maintained that treason could be likened to heresy, and thus could never provide the grounds for a just war. Rebellion was not only unlawful, it was unjust. Here Ayala broke new ground, for he considered the question of whether there could be an “unjust war,” a point not elaborated on by his scholastic predecessors. Because rebels do not have the legitimacy of law under the princely state, they can be treated as pirates and criminals. They may be enslaved and their property taken. There is no duty to keep faith with agreements struck with them. A usurper of the power of the princely state may be slain by anyone; the laws of war do not apply in the context of rebellion. Thus the very man who thought a just war might possibly be waged by both states party to a conflict, denied that a competing prince—without a state—could
ever
wage a just war.

This is the first notable treatment after Augsburg of the problem of the civil war. When the prince was supplemented by the princely state, the rules against regicide, and for that matter parricide—the term used by Ayala—that had hitherto applied in the feudal context now came into play in the guise of treason against the State. Arthur Nussbaum observes that Ayala's analysis would justify the Spanish edict that offered 25,000 gold crowns and a grant of nobility to the assassin of Prince William I of Orange, the leader of the Dutch forces. Quite so.

The civil war is uniquely a problem of the State, because it is an attack upon the State, not upon the person of the crown. It is noteworthy that the commencement of every new period in the procession of constitutional archetypes can be marked by a civil war or revolution.
²⁶
The State that ultimately emerged in the next century, the kingly state, differed from the princely state in its secular nature, among other things, and thus it is significant that the Dutch Revolt that began the era of the kingly state started out as a Calvinist-Catholic dispute.

Alberico Gentili may rightly be said to be the first secular interpreter of international law. Gentili, born in northern Italy in 1552, the son of a physician, studied law at the University of Perugia, where he took his doctorate. He began practice in his native country, the March of Ancona. But he and his father, having become Protestants, were forced to flee Italy in 1579 just ahead of the Inquisition, which sentenced them in absentia to penal servitude for life and confiscated their property. From Austria and
Germany, the Gentilis came to London in 1580, after which the son became a lecturer on civil law at Oxford University.

In 1584—the year of the assassination of William the Silent
*
—Gentili was asked for a legal opinion in the sensational case of Mendoza, the Spanish ambassador involved in the Throckmorton conspiracy to murder Queen Elizabeth. Contradicting the opinion of the Privy Council, Gentili held that Mendoza was protected by ambassadorial immunity and thus could not be tried by an English court. His conclusion, which defied public opinion of the day, was accepted by the government, and Mendoza was deported. With lawyerly economy, Gentili converted his memorandum into the treatise
On Embassies
, published in July 1585 and dedicated to his patron, Sir Philip Sidney.

Gentili left England the following year for Wittenberg but was recalled to Oxford to become Regius Professor of Civil Law, a post he held until 1600. For his inaugural lecture as professor in 1588, the year of the Armada, Gentili had chosen the timely subject: “Whether the subject of a prince whose religion is different from his may take up arms against a prince of his own creed, in other words whether a Catholic may legitimately fight against [a Catholic sovereign] in the service of his sovereign [Protestant] Queen.”
²⁷

Gentili answered this question in the affirmative, in contrast to what might have been expected of the sectarian princely state. His lecture, the
Commentatio Prima
on the law of war, was followed by the
Commentatio Secunda
and
Tertia
in 1589, that, much revised, form the three books of the
De Jure Belli
, Gentili's masterpiece. In 1600 he began practice at Gray's Inn, ceasing to be a law professor. In 1605, he became counsel for the Spanish Embassy, defending Spain against claims made before the British Admiralty Bar by Holland, arising out of their war. This is sometimes thought paradoxical
²⁸
—Gentili was, after all, a Protestant refugee—but it was entirely consistent with his approach to the role of international law.

Gentili recognized the arrival of the society of princely states that formed the basis of international law in the sixteenth century, and referred to the “general law of all kingdoms which comes into being with kingdoms themselves and, as it were, by the law of nations.”
²⁹
He defined war as a conflict between armed forces of a state, thus discarding the private wars of medieval princes. This view is especially evident in his treatment of treaties. In the medieval period, before the emergence of states, treaties were considered binding only during the lifetimes of the signatories. Gentili held that now treaties were binding on the successors of signatories, as well as upon the peoples of the parties to the treaty.

Moreover, consider his treatment of the problem of duress in treaties. First, he argued that treaties are not the mere contracts of princes; they bind the State, and thus even the treaty made under duress is binding. A defeated prince cannot annul a peace treaty on the ground that he was compelled to agree to it.
³⁰
Second, Gentili further distanced the State from the person of the prince by arguing that, even in the absence of coercion, an agreement made by a captive prince is not binding if it inflicts a severe injury on the State. Thus there are inherent limitations on the power of princes to alienate sovereignty.
³¹
And he goes further to recognize the society of states by asserting that there are common interests (“
commune ratione et pro aliis
”) that will serve as a legal basis for making war.
³²

Gentili's interest to us, however, lies not merely in his recognition of the post-Augsburg legal world as one in which a society of states has come into being, but also in his understanding of the shortcomings of that society and of its constituent elements, the princely states.

Princely states were ferociously sectarian and potentially incoherent (because they were composed by a kind of dynastic roulette and had no necessary national basis); they lacked a completely centralized authority (because they had not achieved financial independence from the various subparts of their holdings) and had so little juridical sense of themselves that the potential for international agreements to strengthen the State was limited to the advantages wrung by war and expressed in treaties of doubtful duration. Gentili's writing attempted to shore up the system of such states by addressing each of these difficulties.

Nussbaum calls Gentili the “originator of the secular school of thought in international law,”
³³
and this is surely right. We have to see this in its context, however, to appreciate how Gentili sought to bring this about. He did not distinguish between
ius gentium
and
ius natural
, and indeed deliberately identified the
ius gentium
with the
ius natural
, both being an expression of divine will. Gentili was a devout Christian and could hardly have taken any other position. Rather, having accepted this substantive ontology, he then proceeded to distinguish those matters that were justi-ciable by lawyers and those that had to be referred to the clergy. Repeatedly he insists on the distinction between the respective jurisdictions of the
juris consulti
and the
theologi
.
*
By this means he managed to narrow the scope of ecclesiastical decision to those matters concerning the first three of the Ten Commandments, and indeed largely stripped international law of the moralizing basis it had previously had, in favor of a juridical one.
Perhaps his most famous remark is “
Silete theologi in munere alieno
.”
*
He excludes from the just causes of war opposition to the Christian faith or interference with proselytizing. He refuses to recognize any arbitral power of the pope, preferring instead to refer international arbitrations to “experienced judges.”
³⁴

As is sometimes the case with the expatriate, Gentili was acutely sensitive to the ties of national culture and consanguinity. Arguing that a state, though not itself attacked, is obliged to aid an ally even beyond the terms of an existing alliance when the ally is unjustly attacked, Gentili goes even further and also urges that aid ought to be given to those states, whether or not they are allies, that are similar to the state in question with respect to race, blood, or religion. This invites moral relativism, of course, and Gentili does not shrink from this. He breaks decisively with the moral tradition of the scholastics by holding that a war may be just on both sides. Moreover, he concurs with Ayala that the just treatment of prisoners is not a matter of the justness of the war. By these moves, Gentili is able to argue for the humane treatment of prisoners on both sides of a conflict, i.e., whether or not the state of which they are subjects is at fault, and whether or not the oppressing state can be said to be just in its aggression. Taken together, these doctrines encourage the State and its subjects to more closely identify with each other.

The most important contribution of Gentili to the law of nations is his principle that a treaty is only binding so long as the conditions within which it is to operate have not fundamentally changed. This doctrine—
clausula rebus sic stantibus
—remains an important idea in international law. It is the complementary principle to the doctrine
pacta sunt servanda
(treaties are to be observed). One can see how these two fundamental ideas are given life by the society of modern states: the latter when treaty obligations are objectified and extended beyond the person of the prince or signatory; the former enabling states to behave according to their interests and not as a matter of personal, moral obligation. One can scarcely imagine recognition by the society of states of the
ragione di stato
of Machiavelli's princely state without something like the expediency of the
clausula
.

Gentili provided the society of princely states with an interpretation of its constitutional basis that addressed the weaknesses of that form of the State. Secularism, nationalism, and rationalism all were therapies much needed by the princely state. And in one more respect, Gentili sought to buttress that State. This was his adherence, which grew throughout his life, to greater forms of monarchical absolutism, anticipating (like the “therapies” just mentioned) the advent of the kingly state.

In his posthumously published
Pleas of a Spanish Advocate
, Gentili especially concentrates on subjects drawn from maritime disputes. He strongly advocates freedom of the seas and condemns states and nonstate actors who interfere with commerce in international waters. At the same time he reserves to the sovereign a dominion over the coastal waters extending to one hundred miles at a time when three miles—the range of a cannon—was the commonly accepted term. Nor was this an aberration. His service to Spain, which appeared to many so strange in the context of his personal history, seems less bizarre if it is remembered that Gentili sought, and was granted, permission to represent Spain from the English king James I, who himself was seeking greater absolutism in his own state.

It is sometimes said that Gentili and his predecessors, described in this chapter, were not discussing international law at all but were merely continuing the rich medieval genre of books about the laws of war. This seems to me to miss a profound point. The State is defined by law and by war: it is the State's monopoly on legitimate violence, within and without, that marks it as a State. Once a society of states comes into being, the laws of that society are perforce about war, just as the laws of a single state are about keeping the civil peace.

During Gentili's last years as an advocate, he was called upon to comment on whether there should be common-law judges sitting on appeals from the English Court of Admiralty. As one would expect of the former Regius Professor of Civil Law, Gentili wished to have the appeals bench consist solely of civil lawyers. The English common law, he argued, was not suited to lawsuits involving foreigners, whereas all parties would be perfectly satisfied “to be judged according to the
ius gentium
as found in the civil law.” The king need only require the appellate judges to administer “the English civil law.” This step—which makes international law the law of the sovereign, the “law of the land”—is no mere extension of feudal authority, but rather represents a journey to a new world. The State, only recently objectified, is now demanding recognition for itself
and
its counterparts. It is demanding recognition for an entire society of states.