States: Rise and Decline of the Primary Subjects of the International Community

Oxford Handbooks Online

States: Rise and Decline of the Primary Subjects of the International
Community
Antonio Cassese
The Oxford Handbook of the History of International Law
Edited by Bardo Fassbender and Anne Peters
Print Publication Date: Nov 2012
Online Publication Date: Dec
2012

Subject: Law, History of Law, International Law

DOI: 10.1093/law/9780199599752.003.0003

Abstract and Keywords

This chapter notes that sovereign States have been the backbone of the international community since its
inception. They have been the primary actors on the international scene, but have always been polarized, and
their actions have essentially been based on self-interest. However, they also needed social intercourse with other
States in order to survive and flourish. Nevertheless, the sociability of States has not led them to create a
community proper, the society of mankind dreamed by Grotius. Each sovereign State continues to pursue its own
interest, although now, much more so than in the past, it has to take into account pressures, incentives, and
exhortations of other subjects. The chapter also explores when the individual States authority might be replaced
by the power of the community.
Keywords: sovereign States, modern State, international community, international society

1. The Emergence of Modern States

The international community in its modern shape is contemporaneous with the consolidation of States. States
gradually evolved in Europe between the 12th and the 16th centuries. Modern States arose in England, France,
Spain, and Portugal, consisting mainly of centralized power structures wielding exclusive political and moral
authority as well as a monopoly of force over a population living in a more or less vast territory. According to the
historian JR Strayer, what characterizes the modern State and differentiates it both from the great, imperfectly
integrated empires of the past and the small, but highly cohesive units, such as the Greek city state are a few
notable characteristics: the appearance of political units persisting in time and fixed in space, the development of
permanent, impersonal institutions, agreement on the need for an authority which can give final judgment, and
acceptance of the idea that this authority (p. 50) should receive the basic loyalty of its subjects.1 At that time,
States were monarchies exercising a few prerogatives: making laws, commanding an army, setting up courts of
justice, levying taxes, and ensuring law and order in the country through the use of centralized enforcement
agents. These States were few in number, the overwhelming space of the world communityparticularly outside
Europebeing made up of hundreds of communities subject to local overlords.2 The power of these emerging
States was to some extent overshadowed by the two central potentates: the emperor, at the head of the Holy
Roman Empire, and the Pope, at the head of the Catholic Church.

2. Sovereign States are Coeval with the Birth of the International Society
It is only around the peace of Westphalia (1648), which put an end to the sanguinary Thirty Years War, that the
modern State emerged as an international subject and the international society took its current shape.3 States now
show the following commonalities. First, they are all sovereign, in that they do not accept nor are they prepared to

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States: Rise and Decline of the Primary Subjects of the International Community
bow to any superior authority (superiorem non recognoscentes); in 1836, Wheaton would term them separate
political societies of men living independently of each other,4 adding that [a]s independent communities
acknowledge no common (p. 51) superior, they [the States] may be considered as living in a state of nature with
respect to each other.5 Sovereignty had been defined and theorized in 1576 by Jean Bodin6 and was identified as
the major feature of modern States by Hobbes (for whom it was a necessary condition for the existence of States,
for it is an artificial soul, as giving life and motion to the whole body).7 The quintessence of sovereignty resided in
the exclusive authority to impose and enforce commands on any individual living in a territory belonging to the
sovereign. As the leading Italian publicist and politician Vittorio Emanuele Orlando (18601952) stated in 1923, the
famous Cartesian dictum, if applied to States, should sound as follows: iubeo, ergo sum (I command, hence I
exist).8
Second, States, although they may be and indeed often are markedly different in size, population, economic, and
military power, are all equal in the legal sense: as Vattel would later comment (in 1758), a dwarf is as much a man
as a giant; similarly, a small republic is no less a sovereign state than the most powerful kingdom.9
Third, strikingly, each of these States pursues its own political, economic, and military interests and does not share
any interest with other States, except for momentary alliances dictated by transient political or military motivations.
Each State is a monad living by itself and ready to link up with another State only to the extent that this serves its
own interests. In this respect, Nietzsche's proposition that States are the coldest of all cold monsters (das klteste
aller kalten Ungeheuer),10 is apposite. The international community in most of the modern era, then, has not been
a community proper, but rather a cluster of entities, separate and unconnected, which have been compelled by
historical reasons to somehow live together in an uneasy cohabitation. This disjointed community reminds me of
the figures of some paintings by El Greco (15411614) or, even more, by the Italian Alessandro Magnasco (1667
1749) where each character lives by himself in his own abstract solitude. Perhaps the only common concern was
that of fighting piracy. This concern, however, only gave rise to the general authorization to capture and try
pirates, whatever their nationality, and whoever their previous victim. In this respect, the position of the
international community can be compared to a densely wooded area inhabited by groups of families, in which fires
frequently break out: no coordinating authority is established, no common action is envisaged, let alone a fire
brigade with commonly owned fire-extinguishing appliances; rather, each inhabitant puts out by himself and with
his own means any fire licking his house and does not care about fires threatening other houses; when progress
over the years is made, it only consists of the spontaneous (p. 52) formation of charitable groups, which succour
the old, the weak, and the handicapped, to help them extinguish the fires menacing their life and assets.11
It should nevertheless not be surprising that in that period, the State was regarded as the only and the best-suited
subject of the international community. As the leading Italian jurist and politician Terenzio Mamiani (17991885)
wrote in 1860, the state is the perfect individual of the universal city or republic (lindividuo perfetto della citt o
repubblica universale).12

3. European States as the Spine of the International Society in its Early Stages
How many States made up the international community in the early period? Few: most of them were European
(England, Spain, France, the Netherlands, Sweden). Powerful States outside Europe were the Mogul Empire in India,
the Ottoman Empire, Persia, and China. The European States were, however, much stronger and moulded the
international standards of behaviour. Initially, they distinguished themselves from non-Christian States, and often
used for those States the term barbarian, whereas for themselves they used the term civilized. European States
had a common religious matrix (they were all Christian nations), a common economic mould (they were all the
outgrowth of capitalism), and a common political structure (they embraced absolutism, to be replaced in
subsequent centuries by parliamentary democracy).13 Thanks to the early progress of their economic and social
development and to the consequent formation of a strong middle class, European States set the tone of the
international community for many centuries. Paraphrasing what Hegel wrote with regard to southern Europe, one
could say that Europe was the theatre of world history (das Theater der Weltgeschichte) and that there, the
world spirit (Weltgeist) found its home.14
(p. 53) European States also engaged in strong expansionism, which would fundamentally shape the structure of
international relations. They developed two distinct classes of relations with the outside world. With states proper

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States: Rise and Decline of the Primary Subjects of the International Community
(the Ottoman Empire, Persia, Thailand, China, Japan, etc.), they based their relations on the capitulation system, a
blatantly unequal legal regime. Capitulations were agreements that tended to grant European countries nonreciprocal privileges (among other things, Europeans could not be expelled from a country without the consent of
their consul; had the right to practise worship and build churches; enjoyed freedom of trade and commerce, and
were exempted from certain import and export duties; could not be the object of reprisals, especially in case of
insolvency; and were not subjected to the territorial courts in the event of disputes between Europeans, but to the
jurisdiction of the consul of the defendant or the victim). The other class of foreign countries, namely those that did
not even possess the legal trappings of states proper (as recognized by the European States), were considered by
the European countries to be mere objects of conquest and appropriation, and were consequently turned into what
were later regarded as colonial territories.
Sovereign States (and most notably European States) also classified other States within categories that denoted
their minor status. Thus, they first spoke of vassal States and tributary States. According to the prevailing
opinion, there was a relationship of suzerainty between a sovereign State and a tributary vassal State, in that the
latter only enjoyed a limited control over domestic affairs, while foreign affairs were run by the sovereign State.15
More significant was the later contrast between sovereign States and colonial nations or colonial countries, or
simply colonies. These terms designated those populations which had been subjected to the political and military
domination and economic exploitation of European States. These countries, with the passage of time and the
changing historical conditions, then became dominions or States under protectorate, then dependent countries,
or trust territories. These variations in terminology were meant to indicate gradations in the dependency of those
countries on the authority of the dominant Western States. The fact remains that from the inception of the world
community until the end of the decolonization process (1970s) there have existed two categories of States, those
endowed with full sovereignty (European countries, plus the United States, and later on China, Japan, the Soviet
Union, and so on), (p. 54) and those that were subjected to European countries. It is a victory of the modern
international community that different categories of States no longer exist in law. Today, the distinction between
industrialized and developing countries only refers to their economic structure and output, not to any differentiation
in legal status.

4. Distinctive Features of Early International Society

What characterized the first centuries of development of the international community was the sole presence of
States as actors on the international scene. Peoples and individuals had no say, and individuals were only objects
of state power, either as nationals, or as foreigners, or as pirates (emphatically designated with the expression of
hostes humani generis).
Another striking feature of the world community in this initial stage (and until the 19th century) was the paucity of
legal rules regulating international intercourse. States were both unable and uninterested in agreeing upon
common standards of behaviour. There only existed a core of rules: those on the conclusion of treaties; the
exchange of, and the rights and privileges accruing to diplomats; the free use of the high seas; the capture of
pirates; and the resort to force (admissible both to protect one's own interests and to vindicate one's rights); as
well as some rudimentary rules of warfare. The major powers were content with this modicum of norms, for the
paucity of rules reserved for States maximum discretion. Small States, which would have been interested in the
protection of law, were unable to impose any rule, since at that stage international legal standards were posited
either by treaty (and no major power would have ever concluded a treaty limiting its privileges) or by custom,
which in that period was conceived of as tacit agreement (pactum tacitum), hence not susceptible to evolve if
major powers opposed it. What is even more striking is that there was no mechanism for law enforcement, except
for war (by powerful States against other powerful countries or smaller States).16
(p. 55) It is also unique to this period that States emphasized three fundamental rights: the right to selfpreservation, the right to self-defence, and the right of intervention,17 to which one should also add the right of
independence (as Mamiani wrote, every real state is free and inviolable vis--vis all peoples and all states).18
Since these rights were regarded as absolute, their proclamation boiled down to the assertion of an unfettered
use of force any time a State found it expedient to attack another State and appropriate its territory. The law of that
period was pithily epitomized by Montesquieu in 1748, when he wrote that [t]he object of war is victory; that of

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States: Rise and Decline of the Primary Subjects of the International Community
victory is conquest; and that of conquest preservation. From this and the preceding principles all those rules are
derived which constitute the law of nations.19

5. The Loathed Evil: Rebels

What was common to all nation-states was the threat of civil wars. Hobbes aptly epitomized the tension between
the sovereign State and insurgency by contrasting the Leviathan to Behemoth: 20 two Molochs, one symbolizing the
State, and the other what Kant later called an internal illness of the state,21 namely civil war, or the attempt to
break up the structure of sovereign States.22 It is indeed no coincidence that no international rule evolved on civil
wars while States dominated the structure of the international community, the matter being generally regarded as
exclusively domestic and to be dealt with only by internal methods (rebels being seditious criminals to be killed or
hanged). Under this State-centric perspective of international law, third States must keep aloof from civil wars in
other States: as noted by Wheaton, [u]ntil the revolution is consummated, whilst the civil war involving a contest
for the government continues, other states may remain indifferent spectators of the controversy.23

(p. 56) 6. Evolution of the Domestic Structure of States and of National Doctrines: their
Ramifications for the International Society
The substantially authoritarian structure of European States did not change until the 19th century. Thus the
architecture of the international society remained largely static until the upheaval in the internal State structures or
the emergence of new political doctrines, starting in the late 1700s.
The first major impact of domestic changes on international relations was the French Revolution (1789). The violent
removal of aristocracy, the proclamation of the ideals enshrined in the Declaration of the Rights of Man and of the
Citizen, and the formation of the new middle classes keen on economic development free from any traditional
trammels meant that France propounded new ideals as a participant in international relations as well: sovereign
equality among States, self-determination of peoples as a concept guiding any transfer of territory, the prohibition
of interference in internal affairs of other States, the ban on wars of aggression or conquest, the prohibition of
slavery, as well as the principle of armed intervention in favour of oppressed peoples.24 For all the talk, the reality
of France's actual conduct did not change dramatically. For instance, full implementation of the new values would
have entailed the end of French colonialism and slavery. However, when it turned out that those principles clashed
with the interests of French planters in the colony of San Domingo, the French Assembly in March 1790 passed a
resolution stating that the constitution framed for France was not intended to embrace the internal government of
French colonies. A liberal decree passed on 15 May 1791 was also repealed on 24 September of that year
because the Paris Assembly feared it would lose the colony. In short, the ideals proclaimed by the French
Revolution did not have an immediate bearing on the French attitude to other States or on its dealings with other
international subjects. Those ideals instead primarily constituted a leaven destined to transform international
dealings in the long run, changing the general ethos and the outlook on the State and the international society. It is
no coincidence that Kant wrote in 1795, shortly after the Revolution, that a state is not, like the ground on which it
has its seat, a piece of property (patrimonium). It is a society of men which no one but itself is called upon to
command or to dispose of.25
(p. 57) Second, the doctrine of nationalities propounded by the Italian politician and lawyer Pasquale Stanislao
Mancini (181788) in 1851 considered the nation rather than the State as the real linchpin of international relations.
In his view,26 a nation, if it does not manage to achieve unity and independence by acquiring statehood, remains a
lifeless body, a mere natural reality which, although ineradicable, is devoid of any vitality. This doctrine essentially
asserted that any nation should be able to become a State, with a twofold consequence: (i) nations scattered
among multiple States (such as Italy before its unification in 1860) should be united in one State only, whereas (ii)
States embracing more nations (such as the Ottoman or the Austro-Hungarian Empires) should break apart so that
each nation would constitute a separate and distinct State. This doctrine did have a considerable impact on the
redistribution of power in the world community, in that it led to the formation of new States by either the merger of
existing scattered States (this was the case of Italy and Germany) or the break-up of multinational States (as was
the case with the Ottoman and the Austro-Hungarian Empires). Thus, the doctrine influenced the internal structure
of some States (states became real nation-states), but this development did not affect the attitude of the new States
towards the international community.

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States: Rise and Decline of the Primary Subjects of the International Community
A third doctrine was destined to have a considerable influence on the structure of international relations, more than
on the domestic structure of States. This is the doctrine of self-determination proclaimed by the leading Russian
politician Vladimir I Lenin (in 191617) on the one hand, and by the US President Woodrow Wilson (in 191718) on
the other.27 This doctrine, which Georges Scelle termed a formula of collective freedom and human progress,28
was conceived of quite differently by the two political leaders. For Wilson, it meant democracy at home and the
need to take into account the aspirations and claims of colonial peoples,29 whereas for Lenin, self-determination
meant the break-up of multination empires and the end of colonialism. These were two markedly different views:
one moderate, chiefly (p. 58) hinging on internal self-determination (democracy), the other instead radical,
primarily addressing the issue of external self-determination. While Wilson's views were aimed at spreading
democracy and self-government within the various States, Lenin's postulates were intended to subvert the existing
interstate relations. It should not be surprising that the US Secretary of State Robert Lansing wrote that Lenin's
programme threatened the stability of the future world by applying the self-determination principle to the colonial
world, and went on to note that however justified may be the principle of local self-government, the necessities of
preserving an orderly world require that there should be a national authority with sovereign rights to defend and
control the communities within the national boundaries.30
Which of the two doctrines had a greater impact on the domestic structure of States and the attitude of States
towards the international community? Both doctrines exercised a significant influence, but only in the long run.
Lenin's principles eventually contributed to the gradual decline of colonialism (195070), while Wilson's principle of
self-government helped spread the notion of internal self-determination as the free and genuine choice of
government by the whole people (see common article 1 of the UN Covenants on Human Rights of 1966).
Another radical domestic change that might have had a great bearing on the structure of States and international
relations was the Russian Revolution (1917). This revolution created a striking cleavage in the international
society. Although some members of that society (such as the Ottoman Empire, Japan, Persia, Siam, China) had a
different economic and ideological outlook to that of European States, they had actually yielded to the Christian
bloc's market economy. The Russian Revolution broke this trend, by proclaiming an ideology and a political
philosophy radically at odds with those upheld by the other nations. At the international level, the Soviet Union
propounded three principles: (i) self-determination of people, chiefly as anti-colonialism; (ii) the substantive
equality of all States (hence the repudiation of unequal treaties or of treaties imposing onerous economic
conditions or commercial terms on small countries); and (iii) the partial rejection of international law, chiefly treaty
law unacceptable to the Soviet ideology and interests.
It was only in the long run that the Russian Revolution would bear its fruits at the domestic level (when, after the
Second World War some Eastern European countries turned to communism under Soviet pressure or threat), as
well as at the international level (with the demise of colonialism after that war, and the gradual insistence of
developing countries on the need for real and effective equality between States).

(p. 59) 7. Attempts by Small States to Restrain the Hegemony of Economically and Militarily Strong
States
In the 19th century, two distinguished representatives of a Latin American state, Argentina, tried to set limits to
great powers dominance. Both attempts ended in failure.
The first effort was instigated by the Argentine jurist and politician Carlos Calvo (18221906) in the middle of the
19th century.31 Many Latin American States began to insert into concession contracts with foreign nationals a
clause (called a Calvo clause after the Argentine statesman), which stipulated that, in the event of a dispute arising
out of a contract, foreigners relinquished the right to request the diplomatic and judicial protection of their own
national State and agreed to have the dispute settled by local courts. The clear intent was to limit the legal and
political intervention of Western capital-exporting countries, which often used the right to enforce contracts with
Western nationals as a pretext or occasion for political pressure or even armed intervention in Latin American
countries. The attempt was ill-fated. Numerous international courts and claims commissions ruled that the Calvo
clause was legally invalid or ineffective, since States could not be deprived by virtue of a contract between a State
and a foreigner of their international rightderiving from an international customary ruleto protect their nationals.
Hence, the clause was set aside or downgraded to a superfluous proviso requiring exhaustion of local remedies
before the initiation of international action.

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States: Rise and Decline of the Primary Subjects of the International Community
Another attempt was made by the Argentine Foreign Minister Luis Mara Drago (18591921) in the early 20th
century. States, having an unfettered right to resort to force either to vindicate their rights or to protect their own
interests, often used military power to forcibly recover payments due by foreign States to their nationals who had
invested money in those foreign countries. Indeed, in 1902, Great Britain, Germany, and Italy used force against
Venezuela on the basis of compensation due for damage caused to nationals of the three European countries
during the civil war which had raged from 1898 to 1900, and for Venezuela's seizure of fishing boats and other
commercial ships, as well as to repay loans made to Venezuela for the building of its railway. The three European
countries, considering the settlement proposed by Venezuela unacceptable, sank three Venezuelan ships,
bombarded the locality of Puerto Cabello, and instituted a naval blockade of the coasts of Venezuela. Venezuela
caved in. However, on 29 December 1902, Foreign Minister Drago sent a note to the United States on behalf of the
Argentine government, in which he claimed that the Europeans armed intervention, in addition to running counter
to the Monroe Doctrine, (p. 60) could not be justified, since the collection of loans by military means requires
territorial occupation to make them effective, and territorial occupation signifies the suppression or subordination of
the governments of the countries on which it is imposed.32 The US Secretary of State John M Hay responded with a
lukewarm note of 17 February 1903, substantially dismissing the Drago Doctrine and siding with the European
countries. Thus that Doctrine fell into oblivion for a few years. Then, at the 1907 Hague Peace Conference, when
Drago resuscitated the doctrine, the US delegate Horace Porter watered it down by convincing the conference to
adopt a convention which allowed resort to force, but only upon non-acceptance by the debtor State of
international arbitration, or by its failure to carry out an arbitral award. Significantly, no European State ratified the
convention, thereby conveying the notion that even given this emasculated form of the doctrine, those States were
not prepared to restrain their own powers.
Thus, initial attempts to restrain the hegemony of great powers ended up in total failure.

8. The Gradual Self-Limitation of Sovereign States

I have noted above that, until the 19th century, international law constituted a core of legal standards that
attributed great latitude to States in the conduct of their foreign affairs, and substantially refrained from regulating
most matters relating to international intercourse. Since the end of the 19th century, however, States have become
aware of the need for a detailed regulation of at least some major aspects of their international relations, and they
set in motion normative processes to achieve this purpose. Two different paths were taken: drafting or promoting
collective treaties on some major matters, and soliciting a contribution to the clarification and development of
customary law through arbitral courts and tribunals.
First of all, States pushed for international diplomatic conferences aimed at agreeing upon some set of rules
applicable to all participant States. One of the major problems in need of extensive legal regulation was war. The
Brussels Conference of 1874 on the laws of warfare (attended by fifteen States, including all the European powers
and Turkey, but not China, Japan, and the United States) ended in failure, for the final text did not become a binding
treaty. The 1899 Hague Peace Conference (attended by (p. 61) 27 States, including the European countries plus
China, Iran, Japan, Mexico, Thailand, Turkey, and the United States) was instead successful, and managed to bring
about leading texts not only on war, but also on the peaceful settlement of disputes. The subsequent Hague
Conference of 1907 (attended by 44 States, including all the States that had been at The Hague in 1899, plus
Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti,
Nicaragua, Panama, Paraguay, Peru, Uruguay, Venezuela) revised, ameliorated, and broadened the scope of those
treaties.
It should be added that a major impulse to the codification of existing customary law or to the development of new
rules came from an academic institution that in the 19th and early 20th centuries played a conspicuous normative
role: the Institut de droit international (founded in Ghent, Belgium, in 1873), which adopted important resolutions
on many crucial matters in need of regulation. Thus almost every year, one or more aspects of war and neutrality
were touched upon, culminating in the Oxford Session of 1880, when the Institut adopted the famous Oxford
Manual on the War on Land. Other matters included the international arbitral procedure (1875 and 1879), the
admission and expulsion of foreigners (1888 and 1892), State immunity (1891), extradition (1892 and 1894), the
territorial sea (1894), diplomatic immunities (1895), consular immunities (1896), the responsibility of States for
damages to foreigners caused by a civil war (1900), and the rights and duties of States towards the incumbent

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States: Rise and Decline of the Primary Subjects of the International Community
government in the event of insurrection (1900). All these resolutions, followed by many others in the following
years, suggested new ideas or propounded constructive and forward-looking interpretations of existing principles
or rules so as to prompt States to at least clarify and update the law, but more often to fill gaping lacunae in the
existing law.
Another major contribution to filling gaps came from case law. In this respect some cases stand out for their
particular relevance to the development of international law: the Alabama Arbitration (1872), the Tinoco Case
(1923), the Lotus Case (1927), the Island of Palmas Arbitration (1928), and the Naulilaa Case (1928). In each of
these cases the arbitrator(s) either clarified existing principles, or incrementally developed the law by enunciating
rules or principles previously never articulated in so many words. In the Alabama Arbitration, the United States had
put forward a string of claims for damages against Great Britain for the assistance given, in breach of neutrality, to
the cause of the Confederacy during the American Civil War (186165).33 The Arbitral Court upheld the US claims
in 1872, applying the three rules on neutrality laid down in the arbitration treaty and pronouncing on the law of
neutrality.34 The Tinoco Case (Costa Rica v Great Britain) is important because the arbitrator (the US statesman
William H Taft) clarified the law concerning the identity and (p. 62) continuity of governments and the value of
recognition of governments.35 The Lotus Case (France v Turkey) made an important contribution to the notion of
sovereignty and the extension of criminal jurisdiction of States.36 The arbitral award by Judge Max Huber in the
Island of Palmas Case (United States v The Netherlands) concerned the sovereignty over a tiny island, of scant
value, located within the Dutch East Indies. The question was whether a territory belongs to the first discoverer,
even if he does not exercise authority over it, or rather to the State which actually exercises sovereignty there.
The award is a major contribution to the determination of the notion of territorial sovereignty, its nature, its content,
and the ways sovereignty can be acquired.37 Finally, the Naulilaa Case (Portugal v Germany) determined the
conditions to be fulfilled for lawfully resorting to armed reprisals in time of peace.38

9. States Attempts to Set up Collective Bodies Designed to Manage Joint Interests

Although, as noted above, sovereign States have always constituted monads eager to look after their own interests
and unmindful of collective needs, let alone universal values, some attempts have been made by them to set up
some form of collective arrangement for protecting joint or common interests. There are four such endeavours.
Most of them have ended up in failure, or at least in very minor success.
The first move to devise a collective system designed to restrain the powers of sovereign countries and enforce
the law was made at the very outset of the international community, namely in 1648, with the Treaties of
Westphalia. Article 123 of the Treaty of Mnster provided that, faced with a threat to peace or any other serious
violation of the law, the victim State must not resort to war but should exhort the offender not (p. 63) to come to
any hostility, submitting the cause to a friendly composition or to the ordinary proceedings of justice. Article 124
envisaged a cooling-off period, lasting as long as three years; if at its expiry no settlement had been reached, the
injured State was entitled to wage war, and all the other contracting States were to assist it by the use of force. In
addition, pursuant to article 3, States were duty-bound to refrain from giving military assistance to the offender, nor
were they permitted to allow its troops to pass through or stay in their territories. In short, this collective security
system hinged on three main elements, which with modern terminology can be defined as follows: (i) a sweeping
ban on the use of force; (ii) the prohibition of individual self-defence, except after the expiry of a long period; and
(iii) the duty of all States to support the victim of a wrong in collective self-defence.
This scheme, which strongly resembles the later system of the League of Nations (1919), was too far ahead of its
time and too much at odds with the real interests of the sovereign States that had appeared on the international
scene. It goes without saying that it was never put into effect and remained a grand illusion.
A second attempt, which to some extent was less unsuccessful for it was more realistic, was made in 1815, after
the defeat of Napoleon: the Concert of Europe. Napoleon had shattered deep-rooted principles and upset the
existing order. The victors felt that they had to protect the interests of European monarchies against the seeds of
revolution. They thus devised a system capable of putting a straitjacket on the new forces of progress which were
urging the dismantling of aristocratic privileges and the abolition of old practices. The new system, put in place by
virtue of a series of treaties in 1815, rested on three essential elements: a declaration of principle, a military
alliance, and a new procedure for the settlement of political questions. The declaration of principles was embodied

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States: Rise and Decline of the Primary Subjects of the International Community
in the Treaty of Paris of 26 September 1815, instituting the Holy Alliance between Austria, Russia, and Prussia, to
which all European states adhered (except for England, the Papal States, and the Ottoman Empire).39 The
declaration proclaimed that all States would take as their standards of behaviour the precepts of Christian religion
and considered themselves as members of the same Christian family.40
The military alliance (in which Austria, Prussia, Russia, England, and subsequently France, participated) envisaged
a system of collective security designed to forestall or stifle any recurrence of Bonapartism in Europe as well as
any revolutionary movement likely to overthrow European monarchies. Three measures were provided for in the
Treaty of 1820: 41 (i) the State where a revolution would break out ceased to be a member of the Concert of
Europe; (ii) the new government resulting from a revolution (p. 64) would not be recognized; (iii) the States
directly concerned, or otherwise the Holy Alliance, would intervene with their troops to put an end to the revolution.
This repressive system proved effective in practice: in 1821 Austrian troops were sent to Naples and Turin to
suppress liberal insurgents; in 1823 French troops were dispatched to Spain, again to thwart a liberal attempt at
independence.
The third element of the Concert of Europe was a new procedure for the settlement of political disputes: in short, it
was envisaged that all the sovereigns concerned should meet to discuss political matters and try to settle them.
Thus, multilateral diplomacy, based on periodical summit meetings, was for the first time contemplated and
practised.
This system was realistic, because it was based on the common interest of some major powers. However, it was
short-lived, because in a matter of a few years, nationalist movements became so powerful and widespread in
Europe that monarchies had to bow to them and take on board many of their ideals. Thus, the traditional policy of
balance of power soon replaced the collective system inaugurated in 1815.
In contrast, a return to idealistic and illusionary principles inspired the League of Nations, set up in 1919 as a
reaction to the dreadful First World War. Unlike the Concert of Europe, the League aspired to be worldwide: it had
an original membership of 42 States, including five British Dominions (India, New Zealand, Canada, Australia, and
South Africa). The main traits of the League very much resembled those of the settlement of Westphalia: (i) resort
to war was banned (except for a limited number of cases); (ii) when nevertheless admissible, recourse to war was
subjected to a cooling-off period of three months; and (iii) if a dispute was submitted to the League Council, to the
Permanent Court of International Justice, or to an arbitral tribunal, war could only be resorted to three months after
the decision of one of these bodies. The system was flawed in many respects: first, there was no ban on resort to
force short of war; second, war was not banned altogether, but only subjected to a cooling-off period; third, no
collective system proper was set up for enforcing the law against a State breaking the prohibitions laid down in the
Covenant; it was only provided that all member States were to provide assistance to the victim State, but no
collective action by the League organs was envisaged. In short, any reaction to aggression hinged on the
voluntary action of other members of the League. The system was too unrealistic to prove successful. It is no
surprise that it failed in a matter of a few years.
The fourth and most recent collective security system is that established in 1945 by the UN Charter. It hinges on a
ban on the use of force, the collective enforcement action of the Security Council, and right of individual or
collective self-defence in case of armed attacks. The system combines elements of realism (the veto power of the
five permanent members of the Security Council; the right of self-defence) with loftyperhaps too high-flying
illusions (such as that of a UN armed force made up of military contingents of member States and under the
command of a Military Staff Committee). Sovereignty has not been dislodged, but only slightly restrained. (p. 65)
This accounts for the relative failure of the security system. In summary, and to return to the metaphor of the fire
likely to break out in a densely wooded area, in none of these cases was there a fire brigade set up or were there
any common fire-extinguishing appliances put together and made available to the collective. The inhabitants of the
area only attempted (or managed) to establish a sort of fire council tasked to determine when there arose the
need to put out a fire and to recommend or to authorize the dispatching of one or members of the community to
extinguish it, regardless of whether or not it was necessary to pass through the land of one of the inhabitants of the
area. Sovereignty has remained the major stumbling block to any real progress towards an international community
proper.

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States: Rise and Decline of the Primary Subjects of the International Community
10. The Gradual Dethronement of States in Modern International Society
At the beginning of the international community and for many centuries, sovereign States have been the overlords
in that community and have run the show. The emergence of the nation-state has been a fundamental stage in the
development of modern international society. Various merits can be attributed to States. At the domestic level, they
have somehow amalgamated communities and established, through a centralized monopoly of force, a minimum of
law and order, thereby preventing excessive violence from disrupting social intercourse. At the international level,
States have constituted interlocutors responsible for the actions of their own nationals and capable of entertaining
relations with other international subjects. In addition, they have made it possible for the various areas of the
inhabited world to be represented in international fora. They also have tried somehow to introduce a remedy to the
factual inequality and heterogeneity of international subjects by providing a general legal framework for
international dealings and the coexistence of all international entities.42 However, their unbound authority began
to creak at the beginning of the 20th century, and they are increasingly losing their central and dominant place in
the world community. The gradual but inexorable dwindling of their authority is principally due to the slow
emergence of new actors on the international scene.
The first non-state subjects that emerged were creatures of the States themselves: intergovernmental
organizations. They were organized entities charged with fulfilling tasks on behalf of the member States. The first
ones were essentially technical: the (p. 66) Universal Postal Union, set up in 1875; the Union of the Protection of
Industrial property, established in 1883; the International Institute for Agriculture, created in 1905; as well as the
various River Commissions (for the Rhine, the Danube, etc.). They were merely collective instrumentalities for the
joint performance of actions which each member State would otherwise have had to undertake by itself. They were
deprived of international legal personality, being considered as organs common to all member States. After the First
World War, two important organizations were set up: the League of Nations and the International Labour
Organization (both in 1919). In spite of their political importance, they too were conceived by member States as
structures hardly possessing any independent existence or autonomous role in relation to the member States. It is
only after the Second World War, both with the establishment of the United Nations and the proliferation of other
intergovernmental organizations (the Council of Europe, the Organization of American States, the Arab League, the
Organization of African Unity, NATO, and the various specialized agencies of the UN) and with the Advisory
Opinion of the ICJ on Reparation for Injuries (1949)43 that intergovernmental organizations came to occupy the
centre stage and be regarded as autonomous entities endowed with rights and obligations distinct from those of the
member Statesin a word, as international legal subjects.
Undoubtedly, formally speaking, all these organizations may be undone by legal fiat, through a treaty or a decision
of all member States repealing the founding treaty. In fact, however, like other political and bureaucratic institutions
at every level, these organizations tend to consolidate their authority once they come into operation. One
contributing factor to this gradual growth of autonomy is that the organizations rest on the consent of a number of
States which are politically neither homogeneous nor united. Thanks to divisions and conflicts among member
States, international organizations gain strength and effectiveness which would otherwise be beyond their grasp. It
follows that even powerful members are unable to influence organizations decisively or to make them take a path
different from that agreed upon by the majority of states. Great powers are faced with institutions which, although
formally dependent on States, eventually wield authority over individual member States.
This de facto authority expands when organizations are given by the member states powers that substantially
imply a transfer of aspects of sovereignty. This holds true for the European Union, an organization vested with
strong economic powers in some specific areas (powers that entail the making of binding decisions), as well as with
the authority to legislate in some fields. Here the erosion of sovereignty has already taken giant steps and might
lead in time to the evolution of an entity that replaces sovereign powers, at least in a number of areas.
Another set of entities that to some extent have made a dent in the States authority are peoples as a collective.
However, here States have been extremely cautious in order (p. 67) to limit any attempt by peoples to replace
States or even to have a say on the international scene. Only three categories of peoples were admitted as
possible interlocutors: (i) colonial peoples, (ii) peoples subjected to belligerent occupation or foreign domination
and represented by an organization (a national liberation movement), and (iii) peoples subjected to extreme racial
discrimination and denied access to government (as well as endowed with a representative organization). Peoples
constituting ethnic or religious groups or minorities have otherwise generally been denied any access to the world

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States: Rise and Decline of the Primary Subjects of the International Community
community. In addition, peoples living in sovereign States have been granted a right to self-determination in the
form of free and peaceful choice of representative government, but not, however, the right to overturn the
government or to secede. To these conspicuous limitations, one should add that the emergence of organized
peoples was a phenomenon limited in time: it coincided with the decline of colonialism (the first liberation movement
was the FLN, or Front de Libration Nationale, set up in Algeria in 1954; by the 1980s, almost all liberation
movements had disappeared). Furthermore, the fight of the peoples referred to above is aimed at establishing new
sovereign States, not to create centres of power restraining States authority. Hence the impact of peoples on
sovereign States has been limited in time and scope.
Much stronger and indisputably durable has been the impact of the emergence of individuals as world actors. For
centuries they have been non-existent on the international scene. Then, after the Second World War they gushed
out on that scene thanks to two distinct but concurrent developments. First, the world community realized that it
was individuals who had committed horrendous crimes during the war and who must therefore be brought to trial
and punished, rather than (or in addition to) the States on whose behalf they had acted (hence the celebrated
proposition of the Nuremberg International Military Tribunal that international law is also concerned with the acts of
individuals, and that individuals, and not the states for which they act, bear responsibility for any gross violation of
international law amounting to international crime).44 The second development was the diffusion of the human
rights doctrine (prompted by the horrors of the war and President Roosevelt's famous Four Freedoms Speech in
1941): the clear implication of the doctrine was that individuals were entitled to claim respect for their human
rights; hence they could challenge their own governments as well as foreign governments for breaching their
human rights. This doctrine entailed among other things that States could no (p. 68) longer legitimately claim
immunity from prosecution for their officials accused of international crimes (a manifest inroad into state
sovereignty), and that they had to accept being challenged before international bodies for the conduct they had
taken within their domestic legal order towards nationals or foreigners (another major indentation of their sovereign
authority). In short, States are no longer free to behave as they please vis--vis individuals, but must respect their
fundamental rights, and can even be called to account for their possible misbehaviour.
Another development that is restraining state authority is the mushrooming of rebellion in sovereign States.
Admittedly this is not a new phenomenon. What is, however, new is the multiplication of instances where ethnic
groups, minorities, or political organizations take up arms against the central authorities, and promote insurgency
and even secession. This trend is linked to the structure of many African and Asian countries whose borders had
been arbitrarily shaped by colonial countries without attention to tribes, groups, nationalities, religion, and so on. It
is also linked to the end of the Cold War and the demise of two blocs of States, which has released forces and
scattered authority over the planet. What is also new is that in protracted civil wars, rebels often manage to
acquire a State-like structure, with a functioning administration and courts of law that pass judgment on crimes by
the government forces and even by rebels.45
A totally novel phenomenon is the formation of non-state entities (other than rebels) over the territory of sovereign
States or on the territories occupied by foreign belligerents: it suffices to think of Hezbollah in Lebanon or of Hamas
in Gaza. These developments are the consequence of States (or recognized entities such as the Palestinian
Authority's) loss of actual control and contribute in turn to further weakening the central organs of States (or
recognized authorities). This is a dangerous phenomenon, for it testifies to the further fragmentation of the
international society.
Finally, a new force that heavily conditions the conduct of States is public opinion, especially in democratic
countries. In the past, it did not play a major role; at present, the media may have a deterrent effect as well as the
effect of pointing to grave breaches of law by sovereign States. As early as 1931, JL Brierly stressed the
importance of public opinion as a sanction in international relations, noting that
it is intrinsically a weaker force than opinion in the domestic sphere, yet it is in a sense more effective as a
sanction of law. For whereas an individual law-breaker may often hope to escape detection, a State knows
that a breach of international law rarely fails to be notorious; and whereas again there are individuals so
constituted that they are indifferent to the mere disapproval, unattended by pains and penalties, every
State is extraordinarily sensitive to the mere suspicion of illegal action.46

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States: Rise and Decline of the Primary Subjects of the International Community
(p. 69) 11. Conclusion
Sovereign States have been the backbone of the international community since its inception. They have been the
primary actors on the international scene. Without them that community would not have existed. They have always
been polarized, though, and their actions have essentially been based on self-interest. However, they also needed
social intercourse with other States in order to survive and flourish. Clive Parry is right when he points to the
paradox of the simultaneous power and impotence of the individual state; 47 namely its omnipotence, within its
own borders, over all human beings living there, and its relative helplessness outside its own frontiers, with respect
to other Statesexcept when it intends to conquer and appropriate other States. Nevertheless, the sociability of
States has not led them to create a community proper, the societas generis humani (society of mankind) dreamed
by Grotius,48 or what Terenzio Mamiani, in his footsteps, termed the great universal city of humankind (la gran
citt universale del genere umano).49 To return to the metaphor of fires and their extinguishing, no fire brigade
has yet been established in the international community, let alone a set of tools to put out the fire, jointly owned by
all members. Each sovereign State continues to pursue its own interest, although now, much more than in the past,
it has to take into account pressures, incentives, and exhortations of other subjects.50 In 1929, Sigmund Freud,
speaking of the progress of men, said that the substitution of the power of the community for that of the single
individual has marked the decisive step towards civilization.51 One may well wonder when this step will be taken at
the international level, that is, when the individual State's authority will be replaced by the power of the community.

Bibliography
Recommended Reading
Antonowicz, Lech Definition of State in International Law Doctrine (196667) 1 Polish Yearbook of International
Law 195207.
(p. 70) Arangio-Ruiz, Gaetano Ltat dans le sens du droit des gens et la notion du droit international (1976) 26
sterreichische Zeitschrift fr ffentliches Recht 363 and 265406.
Cassese, Antonio International Law in a Divided World (Clarendon Press Oxford 1986).
Cassese, Antonio International Law (2nd edn OUP Oxford 2004).
Crawford, James The Creation of States in International Law (2nd edn Clarendon Press Oxford 2006).
Detter Delupis, Ingrid International Law and the Independent State (2nd edn Aldershot Gower 1987).
Doehring, Karl State in R Bernhardt (ed) The Max Planck Encyclopedia of Public International Law (North-Holland
Elsevier 2000) vol 4, 6005.
Grant, Thomas D The Recognition of States: Law and Practice in Debate and Evolution (Praeger Westport 1999).
Hinsley, Francis H Sovereignty (2nd edn CUP Cambridge 1986).
Maiolo, Francesco Medieval Sovereignty: Marsilius of Padua and Bartolus of Saxoferrato (Eburon Academic
Publishers Delft 2007).
Merle, Marcel Les acteurs dans les relations internationales (Economica Paris 1986) at 301.
Societ franaise pour le droit international Ltat souverain laube du XXIme sicle (Pedone Paris 1994).
Strayer, Joseph R On the Medieval Origins of the Modern State (Princeton University Press Princeton 1970).
Tilly, Charles (ed) The Formation of National States in Western Europe (Princeton University Press Princeton
1975).
Vitzthum, Wolfgang G Der Staat der Staatengemeinschaft: Zur internationalen Verflechtung als
Wirkungsbedingung moderner Staatlichkeit (Schningh Paderborn 2006).

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States: Rise and Decline of the Primary Subjects of the International Community
Warbrick, Colin States and Recognition in International Law in Malcolm Evans (ed) International Law (2nd edn OUP
Oxford 2006).

Notes:
(1) JR Strayer On the Medieval Origins of the Modern State (Princeton University Press Princeton 1970) at 910; on
the formation of States in Europe, see also C Tilly Reflections on the History of European State-Making in C Tilly
(ed) The Formation of National States in Western Europe (Princeton University Press Princeton 1975) 2546; M
Merle Les acteurs dans les relations internationales (Economica Paris 1986) at 301.
(2) According to Strayer, it should be remembered that the structure of European states, imperfect though it was,
was considerably stronger than that of most of the overseas political communities with which Europeans had to
deal. There was nothing in the Americas, nothing in India or the East Indies, and nothing in most of Africa that had
the cohesion and the endurance of a European state. And if the broad belt of Asian empires, stretching from
Turkey through Persia to China and Japan could rival European states in organization and power up to the end of
the eighteenth century, still the European states were improving their apparatus of government while the structures
of the Asian empires were beginning to weaken. On the Medieval Origins (n 1) 105.
(3) In the 17th century, the central authorities are assisted by a modern bureaucracy, which by now constitutes
the central core of the State, although one must wait until the adoption, on 25 May 1791, of the French dcret
establishing the various ministries for the principle of division of labour to be completely carried through in the
public administration, and for ministers in the sense of administrative law [ie as heads of departments] to side by
the monarch. G Jellinek Die Entwicklung des Ministeriums in der Konstitutionellen Monarchie (1833) in G Jellinek
Ausgewhlte Schriften und Reden (O Hring Berlin 1911) vol 2, 89139 at 98; see also W Fischer and P Lundgreen
The Recruitment and Training of Administrative and Technical Personnel in The Formation of National States (n 1)
475527.
(4) H Wheaton Elements of International Law, with a Sketch of the History of the Science (B Fellowes Ludgate
Street London 1836) vol 1, at 62; see also FF Martens Trait de droit international (A Lo trans) (Librairie Maresco
Ain Paris 1883) vol 1, at 273.
(5) Elements of International Law (n 4) 35.
(6) See J Bodin Les six livres de la rpublique (1576) book I, ch 8.
(7) T Hobbes Leviathan (CB Macpherson ed) (Penguin Harmondsworth 1983) at 81.
(8) VE Orlando Francesco Crispi in VE Orlando Scritti varii di diritto pubblico e scienza politica (Giuffr Milano
1940) 395417 at 400.
(9) E de Vattel Le droits des gens, ou principes de la loi naturelle (Aillaud Paris 1830) vol 1, at 47 (Prliminaires
para 18).
(10) F Nietzsche Smtliche Werke (Krner Stuttgart 1964) vol 6 (Also sprach Zarathustra), at 51.
(11) I am elaborating upon the metaphor of the fire and the ways to fight it propounded by A Ross Constitution of
the United Nations: Analysis of Structure and Function (Rinehart and Company New York 1950) at 1379.
(12) T Mamiani Dun nuovo diritto Europeo (Gerolamo Marzorati Torino 1860) at 48.
(13) L Oppenheim wrote that [t]he modern law of nations is a product of Christian civilisation. L Oppenheim
International Law (H Lauterpacht ed) (6th edn Longmans London 1947) vol 1, at 45. Contemporary scholars and
politicians were aware of and laid much stress on the two different classes of States. In 1837, for example,
Wheaton distinguished between Turkey and the Barbary states on the one hand and the Christian nations of
Europe and America on the other. Elements of International Law (n 4) 52.
(14) GWF Hegel Smtliche Werke (G Lasson ed) (Felix Meiner Leipzig 1920) vol 8 (Vorlesungen ber die
Philosophie der Weltgeschichte), at 230.

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States: Rise and Decline of the Primary Subjects of the International Community
(15) A different view was suggested by Wheaton: [T]ributary states, and states having a feudal relation to each
other, are still considered as sovereign so far as their sovereignty is not affected by this relation. Thus it is evident
that the tribute formerly paid by the principal maritime powers of Europe to the Barbary states did not at all affect
the sovereignty and independence of the former. So also the king of Naples has been a nominal vassal of the
Papal See ever since the eleventh century: but this feudal dependence, now abolished, was never considered as
impairing the sovereignty of the kingdom of Naples. Elements of International Law (n 4) 64. FF De Martens
suggested that one should distinguish between sovereign and half-sovereign States (souverains and misouverains), such as Egypt, Syria, and so on; Trait de droit international (n 4) vol 1, at 3303.
(16) In 1832, Austin wrote: The rule regarding the conduct of sovereign states, considered as related to each
other, is termed law by its analogy to positive law, being imposed upon nations or sovereigns, not by the positive
command of a superior authority, but by opinions generally current among nations. The duties which it imposes are
enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking
general hostility, and incurring its probable evils, in case they should violate maxims generally received and
respected. J Austin The Province of Jurisprudence Determined (W Rumble ed) (CUP Cambridge 1995) at 1478 and
207; see also ibid iv. If in 1860 Mamiani wrote that states do not have above them other power than the moral and
invisible power of law, common to whole mankind and imposed by nature, he was clearly referring to natural law,
more than to positive rules of law. Dun nuovo diritto Europeo (n 12) 15.
(17) See eg Elements of International Law (n 4) 10892.
(18) Dun nuovo diritto Europeo (n 12) 95; see also Elements of International Law (n 4) 131.
(19) CL Montesquieu De lesprit des lois (Flammarion Paris 1979) vol 1, at 127.
(20) I am referring of course to Leviathan (n 7) and T Hobbes Behemoth or the Long Parliament (F Tnnies ed)
(2nd edn Barnes and Nobles New York 1969). In Leviathan (n 7) 81, Hobbes defined sedition as a sickness and
civil war as death.
(21) Kant speaks of a State in civil war being a people independent of others, which only struggles with an internal
illness. I Kant Zum Ewigen Frieden (F Nicolovius Knigsberg 1795) at 12.
(22) However, for Hobbes, the Leviathan was an entity indispensable for modern society and in order to combat
what for him was the really dangerous monster, namely civil strife.
(23) Elements of International Law (n 4) 92. Wheaton adds, however, that third States may then espouse the
cause of one of the contestants, with the consequence that it becomes of course, the enemy of the party against
whom it declares itself, and the ally of the other; T ibid 93.
(24) See A Cassese The Diffusion of Revolutionary Ideas and the Evolution of International Law in A Cassese (ed)
The Human Dimension of International Law: Selected Papers (OUP Oxford 2008) 7292.
(25) Zum Ewigen Frieden (n 21) 7.
(26) See PS Mancini Della nazionalit come fondamento del diritto delle genti (Eredi Botta Torino 1851); La vita
de popoli nellumanit (G Via Roma 1872); Diritto internazionale: prelezioni. Con un saggio sul Machiavelli
(Giuseppe Marghieri Napoli 1873); Della vocazione del nostro secolo per la riforma e la codificazione del diritto
delle genti e per lordinamento di una giustizia internazionale (Civelli Roma 1874).
(27) For references, see A Cassese Self-Determination of Peoples: A Legal Reappraisal (CUP Cambridge 1995) at
1423.
(28) G Scelle Prcis de droit des gens (Recueil Sirey Paris 1934) vol 2, at 257.
(29) The fifth of the famous Fourteen Points proclaimed by Wilson in his address delivered on 8 January 1918
before a Joint Session of the US Congress requested [a] free, open-minded, and absolutely impartial adjustment of
all colonial claims, based upon a strict observance of the principle that in determining all such questions of
sovereignty the interest of the populations concerned must have equal weight with the equitable claims of the
government whose title is to be determined. W Wilson Address to Congress, Stating the War Aims and Peace

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States: Rise and Decline of the Primary Subjects of the International Community
Terms of the United States (Delivered in Joint Session, 8 January 1918) in A Shaw (ed) State Papers and Addresses
by Woodrow Wilson (George H Doran Company New York) 46472 at 468.
(30) R Lansing Papers Relating to the Foreign Relations of the United States (US Government Printing Office
Washington DC 193940) vol 2, at 247.
(31) The doctrine was set out in C Calvos Derecho internacional terico y prctico de Europa y Amrica (2 vols
Amyot Durand et Pedone-Lauriel Paris 1868).
(32) See the text LM Drago Argentine Republic: Ministry of Foreign Relations and Worship (1907) 1 American
Journal of International Law Supplement 16.
(33) JB Moore History and Digest of the International Arbitrations to Which the United States Has Been a Party
(US Government Printing Office Washington DC 1898) vol 1, 495682.
(34) See A Cook The Alabama Claims (Cornell University Press Ithaca NY 1975).
(35) See Tinoco Arbitration (Great Britain v Costa Rica) (1923) 1 Rep Intl Arbitral Awards 369.
(36) See The Case of the SS Lotus (France v Turkey) PC IJ Rep Series A No 10.
(37) See Island of Palmas Case (Netherlands v United States of America) 2 Rep Intl Arbitral Awards 831.
(38) Responsabilit de lAllemagne raison des dommages causs dans les colonies portugaises du Sud de
lAfrique (Germany v Portugal) 2 Rep Intl Arbitral Awards 1019. The Special Arbitral Tribunal held that reprisal, rst,
comprises acts which would normally be illegal but are rendered lawful by the fact that they constitute a reaction to
an international delinquency; second, they must be limited by considerations of humanity (les expriences de
lhumanit) and the rules of good faith applicable in the relations between States; third, they must not be
excessive, although they need not be strictly proportionate to the offence; fourth, they must be preceded by a
request for peaceful settlement (they must have remained unredressed after a demand for amends); fth, they
must seek to impose on the offending State reparation for the offence, the return to legality and the avoidance of
new offences.
(39) Holy Alliance between Austria, Prussia, and Russia (signed 11 [26] September 1815) (181516) 65 CTS 199.
(40) The principles laid down in the treaties mentioned above were aptly summarized in Dun nuovo diritto
europeo (n 12) 2756. The author opposed to them a set of democratic principles of a new European law; ibid
2779.
(41) Troppau Protocol (signed 19 November 1820) in Fontes Historiae Iuris Gentium (WG Grewe ed) (de Gruyter
Berlin 198895) vol 3(1), at 11012.
(42) On these last three points, see Les acteurs dans les relations internationales (n 1) 5861.
(43) See Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep
174.
(44) The Tribunal said the following: It was submitted that international law is concerned with the action of
sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act
of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty
of the State. In the opinion of the Tribunal, both these submissions must be rejected. [I]ndividuals can be
punished for violations of international law. Crimes against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can the provisions of international law be
enforced. Trial of the Major War Criminals before the International Military Tribunal (Nuremberg 1947) vol 1, at
2223.
(45) See S Sivakumaran Courts of Armed Opposition Groups: Fair Trials or Summary Justice? (2009) 7 Journal of
International Criminal Justice 489513.
(46) JL Brierly Sanctions in JL Brierly The Basis of Obligation in International Law and Other Papers (H

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States: Rise and Decline of the Primary Subjects of the International Community
Lauterpacht and CHM Waldock eds) (Clarendon Press Oxford 1958) 20111 at 203.
(47) C Parry The Function of Law in the International Community in T Srensen (ed) Manual of Public International
Law (Macmillan London 1968) 56.
(48) See H Grotius De jure belli ac pacis libri tres (Nicolaus Byon Paris 1625) at 439 (book II, ch XX, s XLIV) where
Grotius confines himself to citing Cicero. More developments can be found in Grotius Mare liberum (Ex Officina
Elzeviriana Leiden 1633) in the Introduction and at 2 (ch i) and 74 (ch XII).
(49) Dun nuovo diritto Europeo (n 12) 10.
(50) See A Cassese Soliloquy in A Cassese The Human Dimension of International Law: Selected Papers (OUP
Oxford 2008) lvivlxxxi at lxxvilxxx; L Condorelli and A Cassese Is Leviathan Still Holding Sway over International
Dealings? in A Cassese (ed) Realizing Utopia: The Future of International Law (OUP Oxford 2012) 1425.
(51) S Freud Das Unbehagen in der Kultur in S Freud Das Unbewusste: Schriften zur Psychoanalyse (A
Mitscherlich ed) (Fischer Frankfurt aM 1969) 3867.
Antonio Cassese
Antonio Cassese (19372011) was Professor of International Law at the University of Florence and a member of the Institut de Droit
International. He was the first President of the Council of Europe Committee for the Prevention of Torture, the first President (1993
97) and presiding judge (19982000) of the International Criminal Tribunal for the former Yugoslavia, the Chairperson of the UN
International Commission of Enquiry into Violations of Human Rights and Humanitarian Law in Darfur (2004), and the President of
the Special Tribunal for Lebanon (200911).

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