War Crimes Law Comes of Age: Essays

By Theodor Meron | Go to book overview

IV
Common Rights of Mankind in Gentili, Grotius and Suárez*

Students of the concept of erga omnes1 trace its antecedents to the early recognition of the right of humanitarian intervention, which they often attribute to Grotius.2 Professor Hersch Lauterpacht asserted that Grotius's writings contained "the first authoritative statement of the principle of humanitarian intervention -- the principle that exclusiveness of domestic jurisdiction stops when outrage upon humanity begins."3 However, some of the other principal works on international law before the Peace of Westphalia ( 1648) reveal that the concept of community interests, and the modern right of humanitarian intervention it spawned, is pre-Grotian,4 that it appeared in the writings of Suárez and figured prominently in those of its true progenitor, the earlier Gentili.5

Whether or not under their influence, the International Court of Justice, in the Barcelona Traction case,6 significantly paralleled concepts articulated by these writers, particularly Gentili. To be sure, the contexts were quite

____________________
*
I am grateful to Professors Peter Haggenmacher and Louis B. Sohn for their helpful comments.
1
See Charney, Third State Remedies in International Law, 10 MICH. J. INT'L L.57, 61 ( 1989); T. MERON , HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 188-90 ( 1989).
2
See, e.g., Edwards, The Law of War in the Thought of Hugo Grotius, 19 J. PUB. L.371, 396-97 ( 1970).
3
Lauterpacht, The Grotian Tradition in International Law, 23 BRIT. Y.B. INT'L L.1, 46 ( 1946).
4
The 1579Vindiciae contra tyrannos asserted that "it is the right and duty of princes to interfere in behalf of neighbouring peoples who are oppressed on account of adherence to the true religion, or by any obvious tyranny." W. DUNNING, A HISTORY OF POLITICAL THEORIES FROM LUTHER TO MONTESQUIEU 55 ( 1905) (footnote omitted).
5
2 A. GENTILI, DE JURE BELLI LIBRI TRES, chs. XVI and XXV ( Carnegie ed., J. C. Rolfe trans. 1933). (This is the 1931 translation of the 1612 edition. Prima commentatio de jure belli was published in 1588, the second and third parts in 1589. The three books appeared, as a new work, in 1598 under the title De jure belli libri tres. See Phillipson, Introduction to id. at 14a. Regarding Gentili's other writings, see 1 L. OPPENHEIM, INTERNATIONAL LAW 91 ( H. Lauterpacht ed. 1955).)

The Grotian scholar Peter Haggenmacher traces the antecedents of the principle of humanitarian intervention even further back, to the "altruistic" 13th-century school of Pope Innocent IV and to the Scholastic writers. Haggenmacher, Sur un passage obscur de Grotius, 51 REVUE D'HISTOIRE DU DROIT295, 301, 304, 313 ( 1983). Haggenmacher's principal work on Grotius is Grotius et la doctrine de la guerre juste ( 1983).

6
Barcelona Traction, Light and Power Co., Ltd. ( Belg. v. Spain), 1970 ICJ REP. 3 (Judgment of Feb. 5).

-122-

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