Early-Modern Times and the Literature on the Ambassador
The debate on ius gentium and its relationship to ius naturale gained promiÂnence during the early-modern period. Many important studies have been done on the vast literature produced by both Catholic and Protestant au- thors.103 Particular attention has been paid to the elaborations of the School of Salamanca, starting with the Dominican theologian Francisco de Vitoria (1483-1546), who tackled the concept of ius gentium on several occasions, and provided two different interpretations of it.
In his Relectio de potestate civili (1528), he described iusgentium as a law that had â€?the validity of a positive enÂactment' issued by the â€?whole world, which is in a sense a commonwealth'. Consequently, â€?no kingdom may choose to ignore this ius gentium, because it has the sanction of the whole world'.[587] [588] [589] This view of ius gentium as positive law was restated some years later, in Vitoria's lectures on the Summa theologiae of Thomas Aquinas (1534-7). Commenting on the discussion in the â€?treatise' on justice and right, in which Aquinas had established a close link between ius gentium and ius naturale, Vitoria again emphasised the human origin of ius gentium, whose roots are found in the â€?consensus of the whole world'.ω5 In 1539, however, the theologian took a different position, reestablishing a conÂnection between ius gentium and ius naturale: in his Relectio de Indis, he asÂserted the natural character of ius gentium and, drawing on the Institutions of Justinian, he described it as â€?either ius naturale or [...] derived from ius naturale,.ιo6The extent to which this appears to be a contradiction, and by extension, the reasoning behind such a contradiction, are questions of some interest, but they should not distract us from appreciating that Vitoria's analysis of ius genÂtium (like, indeed, that of the School of Salamanca more broadly) was noteworÂthy for defining this law and giving it a rightful place between ius naturale and ius civile.
In fact the link between ius gentium and natural reason was - slowly but steadily - weakened over time, as is especially evident in the doctrine arÂticulated by the jurist Fernando Vazquez de Menchaca and the Jesuits Louis de Molina (1535-1600) and Francisco Suarez (1548-1617).[590] [591] [592] Suarez, in particular, actually rejected the Vitorian notion of a natural community - identified with the â€?whole world' - to which states were to be subjected. Instead he described the iusgentium as positive, human law based on treaties and customary usage. Crucially, then, he went on to elaborate a new distinction within the concept of ius gentium: no longer between ius gentium primarium and secundarium, but between two kinds of human, positive ius gentium. His â€?most revolutionary move' was thus to distinguish a ius inter gentes - a law between separate gentes, which could only properly be called ius gentium - from a mere ius intra gentes - that is a set of civil laws and institutions common to all, or nearly all, gentes. â€?I add for further clarity', Suarez, happily for us, gestured:that something can be said to belong to ius gentium in two ways [...]: in one way, because it is the law that all peoples and nations ought variously to keep amongst themselves; in another way, because it is the law that individual cities and kingdoms observe within themselves, but which is called ius gentium by similitude and appropriateness. The first way seems to me most properly to contain ius gentium, which is different in itself from ius civile.ω8
Here we find the first clear definition of ius gentium as something like internaÂtional law, although of course Suarez did not elaborate a fully coherent system of such law understood as a specific legal field encompassing, to the exclusion of any other sources of law, all rules pertaining to relations among polities. Subsequently it fell to Richard Zouche (1590-1661), in his Iuris et iudiciifecialis (1650) to appropriate the expression â€?ius inter gentes’ to identify the whole doÂmain of properly international legal relations, a domain of which he provided the first systematic treatment.ω9
However, even before Suarez (who published his De legibus ac Deo legislaÂtore in 1612) there is evidence that ius gentium was starting to be understood as distinct from ius civile not only in scope, but also because of its particular apÂplication to external relations.
This evolution occurred not as a result of conÂceptual analyses, but through the study of a cluster of issues that would later be recognized as proper topics of â€?international law', and which had - from the fourteenth century, and much more consistently since the sixteenth century - become the subject of specific legal treatises. In the absence of the clearly deÂfined framework provided by a particular discipline - international law as such did not yet exist, of course - these issues were dealt with on the basis of the ius commune tradition, combining rules with varying degrees of specific applicaÂbility with others borrowed from other legal areas, but adapted to the purpose through extensive use of analogical reasoning.[593] [594] The most frequently adÂdressed issues included the law of war, the law of reprisals, prize law and the law of embassies. To conclude this overview of the history of ius gentium, I would like to focus briefly on the literature on ambassadors, and to provide an example of the contribution made by this literature to the emergence of a noÂtion of ius gentium specific to external relations: the right to send and receive ambassadors in cases of civil strife.mAlthough not strictly reserved to sovereign states, in this literature the right to send and receive ambassadors was only attributed to bodies politic which had a certain degree of autonomy. Subjects could only send diplomats with the permission of their ruler, and even then their envoys did not usually enjoy the status of fully fledged ambassadors. The civil wars that spread conflict and tenÂsion throughout Europe from the second half of the sixteenth century onÂwards, however, led jurists to wonder whether, in cases of internal revolt, the envoys of the different factions should be considered genuine ambassadors and entitled therefore to ambassadorial immunity. In France this question was tackled by the legal humanist Pierre Ayrault (1536-1601) in a work published in 1588 and entitled Rerum ab omni antiquitateJudicatarum Pandectae.[595] This was an encyclopedic legal text structured in many sections borrowed from the Digesta and the Codex, including one on legati.
Ayrault distinguished between two types of internal disorders. When there is such discord in a state, he wrote, that only violence seems to be listened to, there is no doubt that, even in such situations, ambassadors are greetly needed, and should therefore be inviolaÂble. On the other hand, when dealing with â€?subjects', who cannot actually be called â€?enemies' or â€?faction leaders', just â€?brigands' or â€?rebels', sending them amÂbassadors is not legitimate, and their envoys do not enjoy the protection of ius gentium[596] Ayrault thus makes a distinction between mere rebellion, underÂstood as a purely internal matter, and actual civil strife, which he equates to discord in external relations: as long as the institutional foundations of the state and the political and ideological ties on which the unity of the population is based are not irredeemably compromised, there is no way for the rule of ius civile (which governs relations between rulers and their subjects) to be abanÂdoned and replaced by that of ius gentium (which properly concerns the relaÂtions between independent polities). Only in this situation are the rebel facÂtions warranted to send ambassadors who enjoy all the diplomatic privileges of ius gentium.Before Ayrault, another legal humanist, Franςois Hotman (1524-90), had touched on the same issue. In his Quaestionum illustrium liber, which appeared in 1573, in the aftermath of the St Bartholomew’s Day massacre, Hotman dediÂcated a chapter to the question of whether faith should be kept with enemies. In his discussion, he first identified genuine â€?enemies [Aostes]’ - who are actuÂally â€?aliens’ - as distinct from â€?defectors [defectores]’, who should, in principle, be subject to â€?our authority and rule’, but have, in fact, removed themselves from it. Having made this distinction, however, Hotman went on to explain that there is a â€?commonality of ius gentium’ not only with Aostes, but also with defectores, based on the idea - expressed by Paulus in Dig.
4.5.5.1 - that the act of defection makes someone an enemy. It followed that relations with such people should therefore also be governed by ius gentium.[597] In 1585, Alberico Gentili (1552-1608), dealing with the right of rebels to send ambassadors in his De legationibus, explicitly criticized this affirmation, and rebuked Hotman for â€?stat[ing] that ius gentium holds for rebels. For the fact that we find [in the DiÂgesta] the jurist Paulus asserting that rebels are enemies to the extent of losing their citizenship, is far from establishing the contention that they should be regarded as falling within the scope of ius gentium’[598] [599] It would thus seem that, according to Gentili, rebels never ceased to be subjects, and therefore only ius civile - never ius gentium - could apply to them. However, in focusing on civil strife, he found himself obliged to draw a â€?distinction’, as he said himself, beÂtween it and mere rebellion. On just this point, indeed, he wrote that â€?when in the strife [dissensio] each faction lays claim by word and deed to the whole organization of the state [ civitas ] or to half of it, the ius legationis will certainly hold between the combatants [...]. But if there are some who lack the daring or the power to claim so much for themselves, in their case I believe that neither the ius legationis nor any other iura gentium ought to hold’.n6Gentili's view thus proves close to Ayrault's, and even quite similar to that of Hotman - although Hotman had not specified that, in order to enjoy the proÂtection of ius gentium, defectors should have, or at least claim, the power to divide the state. Gentili's criticism of Franqois Hotman was, in fact, rebutted by Jean Hotman (1552-1636), Francois's son, again based on the same distinction. In a treaty on the ambassador published in 1603, Jean maintained that when the number of rebels is so â€?great' - â€?as that in France lately was' - that â€?the EsÂtate be devided into two Factions, and each side falne into an open warre', for the sake of the â€?common good' the laws applicable to the ambassadors of forÂeigners must also apply to citizens, â€?whatsoever Alberico Gentili in his treatise de Legationibus saith thereof, contrary to the opinion of my late father in his booke of Notable questions'.[600] Hugo Grotius later concurred: in his De iure belli ac pacis (1625), he first remarked that ius gentium â€?pertains to those ambassaÂdors whom rulers with sovereign powers send to one another.
For in addition to these there are representatives of provinces, municipalities, and others, who are not governed by ius gentium, which applies between different nations [inÂter gentes est diversas], but by ius civile’}18 Nonetheless, as Grotius later added:in civil wars [bella civilia] [...] necessity sometimes opens the way for the exercise of this right, though in an irregular fashion. Such a case will arise when a people has been divided into parts so nearly equal that it is doubtÂful which of the two sides possesses sovereignty Under such circumÂ
stances a single people is considered for the time being as two peoples [duae gentes].[601] [602] [603] This line of thought may, in fact, be traceable through modern legal scholarÂship until at least the mid-eighteenth century, when Emer de Vattel (1714-67) wrote that â€?civil war breaks the bonds of society and of government [...]; it gives rise, within the nation, to two independent parties, who regard each othÂer as enemies and acknowledge no common judge'; as a consequence, â€?of neÂcessity [.] these two parties must be regarded as forming thenceforth, for a time at least, two separate bodies, two distinct peoples', since, â€?although one of the two parties may have been wrong in breaking up the unity of the state and in resisting the lawful authority, still they are none the less divided in fact'?20 The idea underlying all of this reasoning is that ius gentium (and ius legaÂtionis, which is part of it) differs from ius civile, not simply because it applies to a larger domain - and can be considered a kind of universal, rather than terriÂtorial, law - but because it reveals itself to encompass the relations that sepaÂrate gentes establish between themselves. Thus we see that, although no exÂplicit conceptual elaboration of the topic is identifiable by the early modern period, the literature on the ambassador shows ius gentium inching its way towards a more specific meaning than it ever had in Antiquity and the Middle Ages.[604] It is probable that further analysis - extended, too, to other examples - would enable us to ascertain the extent to which the thematic approach adoptÂed in the literature on ambassadors, the law of war, prize law and other related topics contributed to this evolution, and led jurists to arrive at an understandÂing of ius gentium as the legal area specifically regulating external relations. Such an analysis would undoubtedly add another remarkable piece to the hisÂtory of the metamorphoses of ius gentium from universal law to ius inter gentes.