History of International Law as History of International Power: Sovereignty and Property
By ucqhgnu, on 24 March 2017
On 22 March Professor Martti Koskenniemi delivered a talk at International Law Association (British Branch) event at UCL Laws. Martti Koskenniemi is Academy Professor of International Law at the University of Helsinki and Director of the Erik Castrén Institute of International Law and Human Rights. He is currently leading a research project on ‘The History of International law: Empire and Religion’.
At UCL Laws, Professor Koskenniemi spoke about history of international law as history of international power focusing on the relationship between sovereignty and property. He examined in particular how the legal language was used to buttress state power and property rights in the period between XIV and late XIX century when the Institut de Droit International was established and, in Koskenniemi’s opinion, the history of international law began.
Professor Koskenniemi first discussed the concept of dominium, ownership granted to mankind by God, and development of thinking about natural law by the School of Salamanca and Francisco de Vitoria. The notion of dominium jurisdictionis et proprietatis was used to explain the God-given right to exercise power and ownership over property. However, it was jus gentium that governed the division of the property. The idea of interrelation of natural law and jus gentium was reflected in the works of Hugo Grotius (De Jure Belli ac Pacis) who believed that defense or restitution of property could serve as one of the reasons for just war (jus ad bellum). The ideas of natural law and law of nations were further developed by Samuel von Pufendorf who believed that, because of their nature, humans were rationally compelled to cooperate with each other and that the state was a means to achieve common good and salus populi.
The relationship between sovereignty and property was also one of the aspects of the discourse on European balance of powers in the course of XVIII century. Johann Justi, in his treatise The Chimera of the Balance of Europe, argued that the concept of balance of powers was an arrangement suitable for political affairs but not for the trade relationships that were regulated by their own rules. Around the same time Francois Quesnay argued for deregulation of trade and free competition as means of achieving salus populi.
Professor Koskenniemi quoted some further examples of interconnectedness of sovereignty and property from XIX century. One of them was Lord Palmerston’s statement in Don Pacifico Affair to the effect that a British subject (and as consequence his property) was protected anywhere in the world from injustice and wrong by ‘the watchful eye and the strong arm of England’. Another example was the establishment of the US-Mexico Claims Commission to settle the claims by citizens of both states in relation to damages inflicted by one government on the nationals of the other. A more modern example is the existing system of the investor-state settlement of disputes system.
Professor Koskenniemi concluded by emphasising the inherently intertwined nature of sovereignty and property – beneath the surface of government by sovereignty always lie property and contractual relations, and vice versa. Modern legal education should not therefore draw a sharp distinction between private and public law spheres.