7.1 VATTEL: law's CONCEPTUAL FRAMES

With respect to the history of empire, Vattel has been discussed primarily for his agriculturalist account of property, used to defend settler colonialism in the nineteenth century.^[480] This emphasis in the scholarship reflects the fact that Vattel’s Droit des gens has relatively little to say about empires.

Among the reasons for Vattel’s global influence was that he proved compel­ling and useful for a wide variety of figures in the British Empire, at that time the global hegemon, and a crucial space in the making of international law.^[483] Vattel's universalist and aspirational law of nations had considerable critical potential with regard to European states' conduct beyond Europe that was discarded in the nineteenth century, as Vattel himself was ultimately dis­pensed with as a superannuated authority.

Vattel inherited from the tradition of Pufendorf and Wolff the conception of states, or nations, as moral persons. It is significant that he used the terms nation and state interchangeably: states appear, in his account, as commu­nities in which all the individual members are morally bound to work together on their individual and collective self-perfection.^[484] He depicted a world of such nations dealing with each other as legal equals no matter their size or their relative power - in his famous analogy, ‘a dwarf is as much a man as a giant; a small republic is as much a sovereign state as the most powerful kingdom'. This vision of diverse communities granted legal equality and the autonomy to work out their collective lives together free from the interference of outsiders is in many ways a powerfully attractive one. As grounds for treating diverse peoples equitably, it was drawn upon from the time of Vattel's earliest readers, such as Edmund Burke, who cited Vattel when charging that Britain had violated the law of nations in relation to Indian polities and in expropri­ating Jewish merchants in the West Indies during the American Revolutionary War.^[485] British critics of the first Opium War likewise used Vattel to argue for China's equal rights under the law of nations, as I note below. And, as mentioned, for Alexandrowicz, arguing in the 1950s for the legal equality of newly decolonized states, Vattel represented a principled legal universalism that predated nineteenth-century Eurocentric positivism.^[486] But Vattel pre­sented an international community of equal sovereign nations not simply as an aspiration or normative standard but rather, or also, as a plausible descrip­tion of the world around him: one that rendered opaque the fact that Europe's most important powers were highly differentiated, hierarchical global empires with European metropoles rather than national (and implicitly territorially bounded) communities.^[487]

Vattel quickly became the major authority on the law of nations, especially in Britain, so that his implicitly republican doctrine was put to work by an avowedly imperial state.^[488] Joseph Chitty, the editor of the 1834 English edition of Vattel's text, supplemented the text with British colonial and admiralty law and added interpretive notes to make Vattel more clearly useful for British imperial dilemmas.^[489] Chitty's heavily amended text is typical of nineteenth­century editions of Vattel published in Europe and Latin America, such as Andres Bello's Principios de Derecho de Jentes [Gentes] (Santiago de Chile, 1832), or the Portuguese philosopher and diplomat Silvestre Pinheiro Ferreira's Droit des gens, revue et corrigee avec quelques remarques de l'editeur (Paris, 1838), whose title, like that of the 1863 French edition by Paul Pradier- Fodere (‘Vattel...

Chitty's edition was well timed to contribute to British debates leading up to the first Opium War, in which Vattel's text was a ubiquitous point of refer­ence. For those who supported the use of military force to compel China to allow the opium trade, Vattel's arguments about commerce were inconveni­ent, because he categorically supported every state's right to regulate com­merce in whatever way it deemed in the best interests of its people. A few pro­war authors tried, not very convincingly, to use Vattel to support the claim that China was obliged to accept the opium trade, but others, recognizing that Vattel's account of commerce undercut their position, bit the bullet and argued for excluding China from the community protected by the law of nations.

I want to suggest that the pressure brought to bear on the pro-war position by a universalist application of Vattel's principles can be seen as a contributing factor in the movement toward the exclusion of China from the ‘family of nations' altogether as well as in the displacement of Vattel as a legal authority.

Adams, like so many participants in this debate, felt the need to reckon with Vattel's categorical defense of a nation's right to order its commercial policy as it sees fit. He first (and not very convincingly) rejected Vattel as self­contradictory. Having dispensed with the inconvenient authority of Vattel

303-19; and Malaspina and Nina Keller-Kemmerer, ‘International Law and Translation in the 19th century', Rechtsgeschichte 22 (2014), 214-27.

²⁵ Pradier-Fodere (ed.), Le droit des gens... par Vattel (Paris: Gillaumin, 1863), vol. 1, 498. On the ‘glory' that France and Britain achieved by forcing an end to China's and Japan's commercial restrictions, see vol. 1, 275-6, n. 1. on the subject of commercial independence, though, Adams still embraced Vattel's picture of a world of equal states. But Adams also drew on a discourse of oriental despotism in which Vattel had really not participated, and which, since Montesquieu, had depicted European states as uniquely capable of engaging other states with mutuality, while Asian states were constitutively imperial. Adams combined this picture with a Vattelian account of the international community as one of nations to maintain that China had stubbornly excluded itself from that community. The Chinese, he argued, followed a ‘churlish and unsocial system' that contravened the principle of equality among nations that was the cornerstone of the European law of nations.^[491] The crux of Adams's argument was that China

admits no obligation to hold commercial intercourse with others. It utterly denies the equality of other nations with itself, and even their independence. It holds... all other nations with whom it has any relations, political or commercial, as outside tributary barbarians reverently submissive to the will of its despotic chief.^[492]

He cast the war as an encounter between a British ‘nation' that wanted only to vindicate the values of equality and reciprocity, and a Chinese ‘empire' that, in rejecting the norms of the international community, had excluded itself from that community.

Critics of the war were on firmer ground with Vattel, and the Chinese authorities also drew on him for support. One of Commissioner Lin Zexu's early requests when he arrived in Canton to stamp out the opium trade was for the translation of several passages from Vattel, and the opium contraband he declared was entirely in keeping with Vattel's principle that states have perfect liberty to set and change at will their commercial policy.^[493] The translated passages were then published by Chinese state officials in a collection of European thought.²⁹ But although the Chinese turn to Vattel made perfect sense - he had been the dominant legal authority for decades and he unam­biguously supported their position - he was precisely at this moment, and arguably for the very reason that he did so clearly support their position, being declared obsolete in the West. When the American missionary William Martin set out to translate a text of international law into Chinese in the early 1860s, he considered translating Vattel but then decided Vattel was outdated and instead chose the American Henry Wheaton's Elements of International Law, first published in 1836, which he saw as more timely, arguably precisely because of Wheaton's insistence that the law of nations was not universal. This was an argument that Wheaton made ever more insistently in the editions of his text published after the first Opium War, in which he argued that inter­national law ‘has always been, and still is, limited to the civilized and Christian people of Europe or to those of European origin'.³⁰ The ‘Mohammedan and Pagan nations of Asia and Africa', he now wrote, had recently shown an inclination:

to renounce their peculiar international usages and adopt those of Christendom.... The same remark may be applied to the recent diplomatic transactions between the Chinese Empire and the Christian nations of Europe and America, in which the former has been compelled to abandon its inveterate anti-commercial and anti-social principles, and to acknowledge the independence and equality of other nations in the mutual intercourse of war and peace.³¹

Note that here again China appears as an empire and Britain as a nation.

The Opium War, then, marks an important turning point, when the implications of Vattelian universalism sat so uncomfortably with a dominant political position in a European imperial state that Vattel had to be dismissed as an authority and China expelled from the community of states to whom the

considered authoritative, on a subject on which Lin considered himself in the right and on which Vattel unambiguously supported his position.

²⁹ Wei Yuan, Hai Guo Tu Zhi [Illustrated Records of the Oversea Countries] ([Shaoyang]: Gu wei tang, Qing Xianfeng 2 [1852]); see the tendentious translation of the work's preface in John F. Davis, China during the War and since the Peace (London: Longman, Brown, Green, and Longman's, 1852); and see Chang Hsi-T'ung, ‘The Earliest Phase'.

³⁰ Wheaton, Elements of International Law (6th ed.) (Boston: Little Brown, 1855), 16.

³¹ Ibid., 20,22. Compare Wheaton, Elements of International Law:With a Sketch of the History of the Science (London: B. Fellowes, 1836 [1st ed.]), vol. 1, iii-v, 51-3, where he describes the mutual influence of the public law of Europe and that of the ‘Mohammedans' in ‘Turkey and the Barbary states'.

law of nations applied and, with other non-European states, rendered candi­dates for entry into a European order rather than, as they had been for Vattel and Burke, presumptive members of a universal legal community. And yet Vattel's legacy remained profound in the framing of that European order as one of equal and independent nation-states, not global empires.

As international law came in the latter half of the nineteenth century to be increasingly a self-conscious discipline, its major practitioners came to argue that international law had to be understood as a historically particular system that had arisen under the distinctive circumstances of early-modern Europe and was constantly adjusting to the ‘growing wants of a progressive civilisa­tion'.^[494] They were, consequently, preoccupied in a way that Vattel had not been with delineating the scope of the international community, expounding the criteria for admission into that community, managing its gradual expan­sion to encompass some excluded states, and specifying the legal status of various societies they deemed inadmissible. Vattel thus left a mixed legacy to twentieth-century international thought: the critical purchase of his normative account of sovereign equality was lost in the nineteenth-century rejection of his universalism, while his model lived on as a misleading descriptive schema.