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International Law
Hugo Grotius was born on April 10, 1583 in Holland. He was raised in a family of well-educated people with ambitions. Grotius started reading when he was three years old and his mother prohibited him to read. When he was eight years old his brother died and thats when he started writing poems in Latin to comfort his father. At the young age of eleven Grotius was admitted in the Faculty of Letter at the University of Leiden. Just after he graduated at the age of 15, he was presented to there King Henry IV and he named Hugo Hollands miracle . A year later he obtained his law degree from the University of Orleans. In 1607 he was chosen by the prince as Attorney General of Holland, Zeeland, and West Friesland. He married a girl named Maria and soon started a family. After several years as Attorney General, Grotius was appointed Pensionary of Rotterdam in 1613.
The philosophy of Grotius took a step to the reinterpretation of International Law. The key was in the attitude and action taken by the States in the political and international arena, based on the imperium of the basic principles of nature and custom. Agreements and social practices appropriated by States would become the essence of the Law of Nations.
Positivism has developed as the modern State-Nation system and emerged after the Peace of Westphalia in 1648 and in the midst of religious wars. This peace put an end to the Thirty Years War from 1618 to 1648 and is generally considered as an initial point of European international law and at the same time, it is one of the main milestones in the development of modern International Law.
At the same time positivism appeared to demolish the philosophical basis of Natural Law and give that theory to history, but this resurgence in a modern aspect of the importance it would have in the future. Natural Law gives way to the concept of human and fundamental rights of man and citizen.
This was individualistic political supremacy. The idea of the social contract, which supposed an agreement between individuals, preceded and justified the civil society, accentuated the central role of the individual and was interpreted pessimistically to demand the absolute sovereign who ate the State; as Hobbes had declared ‘man is the wolf of man’, or with optimism one should think of a conditional acceptance of authority as Locke had maintained and this could not fail to be a revolutionary doctrine. Human rights are the heart of the American revolutions and the French revolution and the essence of today’s societies; something that Grotius also impulse.
Grotius developed a table in which he explains the dimension of the legal discipline and the scope of application of the International Law based on science, criticism, and politics and the diverse conditions under which the rules must govern the social conduct of States. Despite the exile in France, Hugo Grotius had already achieved fame in Europe. Luis XIII soon granted him a pension of three thousand pounds that otherwise did not solve his problems that were arriving one after another. Nevertheless, he had a very rich and powerful place within the court that facilitated him some of his numerous mansions and in the field where Holland’s miracle could retire to think and to write.
It was then that Grotius conceived the idea of his major work, ‘De Jure Belli as Pacis’, which was completed in 1924 and was published the following year.
In his work De jure Belli ac Pacis publishes in 1625, he talks about the private notions of the law. Here he mentions both Francisco de Vitoria and Alberico Gentili, precursors of Natural Law, that were really influential for Grotius works. Grotius exposed the theology of International Law and emphasized the irrelevance in such study of any Divine Law. He said that the Law of Nature would be valid even if there was no presence of God. ‘It was a statement that, although adequately dressed in religious protest, was extremely daring. The law of nature had returned to its constitution exclusively on reason. Justice was the part of man’s social makeup and so it was not only useful but essential’. Hugo conceived the idea of a comprehensive international law system what earned him his works were universally recognized.
He retained the theology distinction between a just war and an unjust war, a notion that should soon disappear from the treaties on International Law, but somehow sustained modern access to aggression, self-defense, and liberation.
The idealist theory of Samuel Pufendorf, who tried to completely identify International Law with Natural Law and on the positivist theory framed in the ‘positivist’ school, which distinguished the International Law from Natural Law and accentuated practical and practicing state ideals. Pufendorf considered Natural Law as a moralizing system and misunderstood the direction by which the Modern International Law should follow its course by denying the validity of the rules on custom. Grotius also refuted positivism stating that for the recognition of treaties, whatever their scope of application and relevance should have a discussion based on the principles of international law. Other ‘naturalists’, on the other hand, repeated those feelings framed on the basis of the minimization of the actual practices of states in favor of a theoretical construction of absolute values, but rather with the inspection of events that had arisen from the discussion and of the real problems that had arisen. The empiricism formulated by Locke and Hume denied the existence of native principles and postulated that ideas were drawn from experience.
It speaks properly of treaties of natural right but rather it constitutes a treaty of right on which today we would call international relations; although it also covers other topics, composed according to the guidelines of legal humanism. The explicit intention of Grotius declared in his first paragraph of the book was to treat ‘in the form of a system the right that governs the relations between peoples and between their rulers, both natural and divine and the positive customary’. Grotius, when dealing with the different themes that mark his book, manages indistinctly norms of natural law, precepts of positive divine right and subordinary norms of international law; his book is not treaty of natural law, since the first one to speak of natural law was Pufendorf, but a work that inscribes meta-logically within the works of law you realize according to the proper method of legal humanism.
On the other hand, far from breaking sharply with the previous doctrine, Grotius frequently used and cited the previous authors, both jurists and some theologians of the Scholastica. Actually the most decisive for the success of the Grotius book was the opportunity of its appearance, together with the fluid and agile argumentation, its great humanistic culture, it’s good knowledge of jurists and theologians, the harmony and balance in the exhibition, etc. However, Grotius guessed in the history of the theory of natural law a novelty. In the Prolegomena of his work, the Dutch author developed a notion of natural law, which is based on new ideological bases with respect to the previous tradition.
Grotius left aside theological conceptions, founded the notion of natural law based on reason, characteristic of all men and that unites them without ideological or religious considerations, where natural law would have as sole foundations reason and nature. It considers the appropriation of the ships due to the existing war situation, where the basis of the legality lies in the fact that war is a right of nature. Within the element voluntarist planet that all the law is born of the will of God or of men, as the case may be, which is known by reason and justified in human nature.
Hence, Grotius established a series of principles that order international law and the legal order in general of several rules:
- The first rule refers to the divine will as the origin of every right from which two laws derive, in the first it is licit to defend life and avoid evil; in the second, it is licit to acquire the utility for life and to conserve it. These precepts are considered divine right or absolute or primary natural right since they emanate directly from the will of God.
- The second rule manifests the consent of all units of all men is right, their respective laws are related to all other aspects that must be regulated differently from life, therefore, they are laws based on collective will. Therefore, all these precepts are considered secondary natural right.
- The third rule also considered a secondary natural right, the rule expresses that what each one declares that this is right for him, and the remaining laws that derive from the said rule are those that are based on the individual will.
From these rules, it follows that the will and the pact are the sources of law and the reason fulfills an ordering and cognitive function of any legal system, while it is possible to identify a divine right with the cusp of natural law. In this work also, Grotius developed his doctrine of natural law, definitively separates the natural right of religion, but still considers the divine will as the origin of law, also making it clear that natural law has its seat primarily in human nature, although God is also a source of it, since he wanted the principles of this right to be in our nature, therefore, the origins of natural law would come to be two, being the priority for us human nature, even though God didnt exist, it affirms that natural law existed, it would continue to exist and force men to comply his precepts.
The reason within his doctrine is a primordial element as a source and as a means of knowledge of natural law, therefore, it is known and at the same time we know that it compels through reason, but at the same time obligation to obey it is born of the divine will the will being later and subject to reason.
As a characteristic of this natural right we find the immutability, since the natural right is born of the human nature or essence, which at the same time is also immutable and, in addition, is known by means of the mathematical reason whose object is the immutable realities, for Natural law does not change either in time or space, that is, it is common to all times and all peoples, its character of immutability is so characteristic of natural law that it even affirms natural law is immutable to the point that it can not be even modified by God, just as God can not make two plus two not be four, neither can it make what is bad by intrinsic reason not bad.
The natural right in the eyes of Grotius has its origin and foundation in human nature, therefore, everything or that is in accordance with human nature is ordered by natural law, as also what is not in accordance with it is equally prohibited by this, where the essence of that nature is the character of sociability characteristic of human nature, a distinctive feature between man and animals, as well as what makes us different from these is rationality, including sociality and rationality human are the source of natural right.
On the other hand, the natural law, for Grotius, becomes the premise and source of legitimacy of positive law, whether for international law or civil law which are born of consensus or pact, it is as if society is born spontaneously once the political organization has been born, in particular, the legal rules are the product of pacts or conventions, with respect to which they have their foundation in human nature and natural law, where the obligation to keep the word or compliance with the covenants comes precisely from this same right.
Finally, the ‘Right is what is not unjust, being unfair what goes against the nature of society according to human reason. Law is the faculty or moral quality of the person insofar as he is competent to own or do something rightly.
Grotius also very important work was Mare Liberum, formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade. The disputation was directed towards the Portuguese Mare clausum policy and their claim of monopoly on the East Indian Trade. The air belongs to this class of things for two reasons. First, it is not susceptible of occupation; and second, its common use is destined for all men. For the same reasons the sea is common to all because it is so limitless that it cannot become a possession of anyone, and because it is adapted for the use of all, whether we consider it from the point of view of navigation or of fisheries.
International Law Today
Currently, International Law is fully valid, its rules are considered valid and applicable. Therefore, it has been necessary to establish the base or logical, historical and legal support on which it rests and on which it does not grant its reason for being.
Therefore, some writers have taken the ideas of Grotius stating that International Law is within Natural Law and that in turn is a mixture of customary law and Natural Law since the States contract obligations are given by the very nature of which emanates the interdependence of one with others.
However, there are those who also maintain that international law comes not only from custom, but also from treaties and conventions, and that is where the self-delimitation of States and the common will to find mutual cooperation agreements take place. The State, by its own will, establishes limitations on its power when it considers it necessary to negate the international system; therefore International Law is mandatory because the State is capable of binding itself.
On the other hand, some writers have objected to this thought, saying that Grotius also said that the International Law fundamentally has the will of the State and that it is discretional, it is in his hands to admit such rules and also discard them.
The ‘pacta sunt servanda’ rule imposes the duty to fulfill the obligations contracted by the States and it is for them that in order to give a content to the fundamental norm of International Law we have to start from those legal principles that the civilized peoples commonly recognize, since the norms of positive international law have been built on the base of the legal conscience of the peoples.
The current system of International Law takes into account the annotation of Grotius in its various works and establishes the division of the international system into two subsystems: the law of peace and the law of war; but that undoubtedly brings a serious problem, that of the finality, since, in an authentic legal system, incompatible norms must not subsist. From there, he takes the postulates of Grotius but in turn makes a distinction between the law of peace and the law of war, something that at the time Grotius failed to establish.
Thus, the right of peace protects the States against the annihilation, the subjection and the mutilation of the territory, and the individuals of the territory, and the individuals against the deliberate and organized destruction, en masse, of life and property. On the other hand, the right of war renounces the first objective and restricts the second, limiting itself to protecting man against gratuitous suffering and destruction.
For this reason, the importance of the maintenance of international peace and security has now been established, but it has also been found that if there is a war, it must have laws that impose obligations on combatants. That is, here Grotius is given the reason, that there may be an intermediate State, in which international norms must interact with justice and demand of the nature of the peoples to seek a solution in the acts of war that ultimately proclaims human dignity and the fearless value of the world; peace.
Conclusion
To conclude, we can say that Hugo Grotius has high merits in the history of political and legal ideas and even in the doctrinal elaboration of positive law. Many call him, father of Public International Law. Undoubtedly the Hollander jurist had the merit of systematically structuring the natural law and put it frankly at the service of the political interests of the bourgeoisie which I represent consciously.
Grotius’s philosophical thought is formed in the heat of the struggles of the Dutch people for their political and religious freedom, against the Spanish domain and decadent feudalism. Grotius is, without a doubt, an active element of the revolution of Holland. In his initial work, Mare Liberum, presents the first concepts and notions of future International Law, to defend the freedom of navigation that constituted an expensive longing for the Netherlands, new naval power, against the hegemony of Spain, which had arrogated the right exclusive navigation to India, invoking papal decisions in this regard.
For Grotius, Law emanates not the will of God, but the very nature of man. What distinguishes this animal is its aspiration to relate to its neighbors, in an organized manner, according to the dictates of sanity. Thus, in Grotius, naturalism is structurally separated from its predecessors. Grotius could not totally get rid of the influences of religion and came to admit that God exists and therefore in natural law can exist without God, for only the rule of the rational, while God has created when it exists, it also emanates the right.
For this reason, that natural law founded on rational ethics appears completely remembered, in the speech of Grotius, by the presence of the contract or social agreement. The contract, as an agreement of wills expressed or tacit, is the basis of Civil Law and obligates men to a regimen of collective life presided over by a spirit of collaboration that takes citizens to it and obedience to the prince and in the international leads to the international legal community.
References
- Miller, J. (2011, July 28). Hugo Grotius. Retrieved May 8, 2019, from https://plato.stanford.edu/entries/grotius
- Hugo Grotius and International Relations. (2014, November 07). Retrieved May 8, 2019, from https://www.oxfordscholarship.com/view/10.1093/0198277717.001.0001/acprof-9780198277712
- Haskell, J. D. (n.d.). Hugo Grotius in the Contemporary Memory of International Law: Secularism, Liberalism, and the Politics of Restatement and Denial | Emory University School of Law | Atlanta, GA. Retrieved May 8, 2019, from http://law.emory.edu/eilr/content/volume-25/issue-1/articles/hugo-grotius-secularism-liberalism-restatement-denial.html
- N. Shaw, Malcolm. International Law 5th Edition. Cambridge University Press. United Kingdom, 2003. pp. 23.
- Barcia Trelles, Camilo. Estudio de Derecho Internacional. Universidad de Santiago de Compostela, Zaragoza, 1958. pp. 471.
- Monroy Cabra, Marco. Derecho Internacional. Temis S.A. Bogotá, 1994. pp. 215
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