Vattel s Doctrine on Territory Transfers in International Law and the Cession of Louisiana to the United States of America

AuthorStéphane Beaulac
PositionPh.D. (Cantab). Faculty of Law, University of Montreal, Canada
Pages1327-1359

Page 1327

This is a translation of Le transfert de territoire en droit international selon Vattel et la cession de la Louisiane aux États-Unis d'Amérique. The authenticity of this article was ascertained only by the author.

Ph.D. (Cantab). Faculty of Law, University of Montreal, Canada.

This was their natural right; and the formal consent of the two people was," according to them, "indispensable; namely, the consent of the one party to belong to the Union, and that of the other to enlarge its territory. Neither the constitution nor any act that had emanated from them had authorized the president to conclude such a treaty." (emphasis added).

I Introduction

There is a continuing debate among international commentators as to the doctrinal "paternity" of international law,1 which must be distinguished from the expression's etymological origin, credited to the British author Jeremy Bentham.2 But be it the Spanish Francisco de Vitoria, the Dutch Hugo Grotius, or the Swiss Emer de Vattel who is deemed the "father" of the discipline, there can be little doubt that the latter's contribution was seminal,3 with his masterpiece Le Page 1328 Droit des Gens; ou Principes de la loi naturelle appliqués à la conduite & aux affaires des Nations & des Souverains.4

At the outset of this two-volume manuscript, Vattel identified the mission ahead in the following terms: "The Law of Nations, though so noble and important a subject, has not, hitherto, been treated with all the care it deserves."5 Droit des Gens was meant to remedy this shortcoming.6 The targeted audience was also explicitly set out in the preface7-"The law of nations is the law of sovereigns. It is principally for them and for their ministers, that it ought to be written."8 Even though every citizen may be interested in it, it is the Page 1329 persons entrusted with public affairs who should "apply seriously to the study of a science which ought to be their law, and, as it were, the compass by which to steer their course;"9 and if they did, Vattel added, "what happy effects might we not expect from a good treatise on the law of nations[?]"10

History shows that Droit des Gens did obtain such effects on international law and on the people conducting international affairs, not only in Europe but also in the newly formed United States of America.11 Hersch Lauterpacht wrote that in the 19th century, there was "no author whose name had been more frequently mentioned before international law courts than Vattel's."12 Gerhard von Glahn, for his part, opined thus: "It can seriously be maintained that despite the vital contribution of Grotius, no single writer has exercised as much direct and lasting influence on the men engaged in the conduct of international affairs in the legal sphere, at least until very modern times, as did Vattel."13

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II Vattel And The Cession Of Louisiana

This unprecedented success of Droit des Gens, especially in Great Britain and the United States of America,14 bears witness to the undeniable impact Vattel's writing has had on the shared consciousness of society,15 including those of the international society and the American political, legal and diplomatic societies.16Part II, Section C of this paper will explore Vattel's theory on the question of territory transfers in international law, and Part II, Section D will discuss whether or not the cession of Louisiana to the United States followed the conditions prescribed in Droit des Gens. The conclusion will examine why, unlike in many other instances, Vattel's doctrine was absent in the debate over the purchase of Louisiana.

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A Vattel On Territory Transfers

In order to appreciate Vattel's views on the transfers of territory, one must have a sense of his work as a whole. Therefore, the principal themes in Droit des Gens will first be presented in Part II, Section B, before examining in detail in Part II, Section C the part of the manuscript dealing with the question of territory transfers.

B Droit Des Gens In General

In its original format, Droit des Gens had: (i) a preface, in which Vattel explained why he wrote the book and the guiding principles he intended to follow; (ii) preliminaries, which brushed a general picture of the main ideas of the law of nations; and, (iii) four books, which constituted the body of the manuscript-the first book on the nation in itself, the second one on the nation and its relation with others, the third one on war, and the last book on peace and embassies.17 The most important achievement of Vattel is the externalisation of the idea of 'sovereignty,' which was transposed form the internal plane to the international plane.

The intention to externalise 'sovereignty'-which internal ramifications were developed by Jean Bodin in Les six Livres de la Republique18-is manifested in the very first book of Droit des Gens, entitled "Of Nations Considered in Themselves."19 It provides the following definition of the state:

NATIONS or states are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.

Such a society has her affairs and her interests; she deliberates and takes resolutions in common; thus becoming a moral person, who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights.20

Such a definition of 'state' or 'nation'-terms which Vattel used interchangeably and viewed as synonymous21-is based on the ideas Page 1332 of "social contract"22 and "moral person."23 And, most importantly, it would require the recognition of some kind of competence to govern, that is, of some kind of 'sovereignty.'24

Indeed, the public body at the head of such a society of persons coming together to protect shared interests and pursue common goals must have the power to provide order and to rule.25 "This political authority is the Sovereignty," wrote Vattel, "and he or they who are invested with it are the Sovereign."26 He further explained thus:

It is evident, that, by the very act of the civil or political association, each citizen subjects himself to the authority of the entire body, in every thing that relates to the common welfare. The authority of all over each member, therefore, essentially belongs to the body politic, or state; but the exercise of that authority may be placed in different hands, according as the society may have ordained.27 Page 1333 Depending on the locus of power, the moral person in whose hands the authority is placed constitutes a democracy, an aristocracy or a monarchy and,28 Vattel opined,29 these "three kinds of government may be variously combined and modified."30

Then, the association between 'sovereignty' and internal governance was transposed onto the international plane.31 This externalisation of the competence to govern was carried out by establishing what constitutes 'sovereignty,' this time viewed from without:

Every nation that governs itself, under what form soever, without dependence on any foreign power, is a Sovereign State. Its rights are naturally the same as those of any other state. Such are the moral persons who live together in a natural society, subject to the law of nations. To give a nation a right to make an immediate figure in this grand society, it is sufficient that it be really sovereign and independent, that is, that it govern [sic] itself by its own authority and laws.32

It is clear that Vattel has here changed the idea of 'sovereignty'-the authority to govern is now seen as vested into a political body acting as the sole representative of the people both internally and externally.

The proposition that a society is not merely the sum of persons forming it, but ought to be viewed in terms of an aggregate of individuals-that is, of a corporate body, having its own will and its Page 1334 own finality-predates Vattel.33 According to Roscoe Pound, the personification of the state can be traced back to Ancient Greece and would be as old as Plato's Republic.34 Although picked up by the Roman private civil law, it was only in the Middle Ages that the concept of fictitious juridical person resurfaced, initially in domestic public law and then in international law.35

The first reappearance of the doctrine was with the work of Johannes Althusius, who published Politica36 in 1603. But it is Thomas Hobbes37 who is credited with the medieval rebirth of the theory of moral personality,38 hinted at in De Cive,39 and firmly Page 1335 established in Leviathan40 with the notion of "artificial person."41Samuel von Pufendorf42 further developed the theory of juristic person-what he called persona moralis composita -in his De Iure Naturae et Gentium,43 first published in 1672, which discussed the dissociation of the moral person of the state from the physical person of the ruler.44 In fact, he suggested a doctrine of double contracts- one among the individuals of the society and one between this social body and the political body, which is the corporate body of the nation.45

Although it had already resurfaced in the 18th century, it is accurate to say that, "[a]t the time of Vattel no clearcut theory of moral personality was widely accepted."46 In fact, Albert de Lapradelle argued that it is really only with Vattel-some say47 along with Christian Wolff48-that the personality and authority of the ruler Page 1336 become the personality and authority of the state, as a corporate body representing the citizens.49 On the juridical person of the state, Vattel wrote:

A political society is a moral person (Prelim. § 2) inasmuch as it has an understanding and a will, of which it makes use for the conduct of its...

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