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occasionally be justified on grounds of self-defense or by the failure
or inability of the invaded state to fulfill the duties of control over its
territory which are the corollary of its right to territorial sovereignty.
The difficulty, of course, is that each state will, in accordance with
the legal principle of equality, claim the same right, and thereby cancel
out the legal effects not only of all other legal claims, but also its own.
The editors, and the mainstream of the profession, have always been
aware of this difficulty and believe they can counter it by making a
distinction between the claim of a right to self-preservation and a
right to self-defense. While self-preservation as a legal concept is ruled
out as illogical, the necessity of safeguarding the integrity of the State
may, in strictly limited circumstances, justify acts that are otherwise
wrongful (para. 126). Article 33 of the ILC draft articles on State
Responsibility is the occasion for differing views. But maybe when
there is only one means to safeguard essential interests of a state
against grave and imminent peril, and there is no serious impairment
of the essential interest of another state and no violation of ius cogens
by using it (para. 127), force may be used. In any case, in the view of
the editors, self-defense against subversive armed forces can involve
crossing the border to deal with intended attackers, etc. Standard
nineteenth-century cases are set out, such as the sinking of the Danish
fleet at Copenhagen as well as the sinking of the French fleet at Oran
in 1940.
What is more, anticipating an attack is not necessarily unlawful in
all circumstances (para. 127, continued). In conditions of modern
hostilities it is unreasonable to expect the state to wait. In practice it
is for every state to judge for itself in the first instance whether a case
of necessity in self-defense has arisen. There are practical difficulties
in modern technology, for example aircraft approaching in what
appears to be a hostile manner. The editors make no judgments about
a number of incidents which they set out in a value-free manner: Suez
1956, Cuba, Aden, South Africa, Vietnam, Iraq, etc. So, it appears
that the editors consider that forceful intervention is not necessarily
illegal. Justifications have been the protection of citizens, as Britain in
Suez, Israel at Entebbe, etc. (para. 131). That is, where national lives
are in danger and the territorial authorities are unable or unwilling to
protect those at risk, action may be taken which is, in any case, not
inconsistent with the purposes of the UN Charter.
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114 Philosophy of International Law
A FURTHER GLANCE AT VATTEL S HERITAGE
It has to be stressed once again that Vattel is the key figure of inter-
national legal modernity. Of course, he is not the originator of legal
modernity itself. Nor did he necessarily understand the implications
of the innovations that he made. One will have to come to these ques-
tions in a later part of this chapter. For the moment it is his place in
the international law tradition that one wishes to highlight. As an his-
torian of international law, Jouannet demonstrates the same continu-
ity of the medieval legal method throughout the seventeenth and early
eighteenth centuries from Grotius to Vattel. All the major legal figures
continue some version of the medieval method. The main figures are
Grotius himself and what Jouannet describes as his disciples, Rachel,
Zouche, Textor, and Bynkershoek.9
The reason why international law had not until Vattel become an
autonomous discipline in its modern recognizable form is rather sur-
prising. Jouannet traces how none of the earlier jurists conceived of
the state or nation, words used interchangeably, as a corporate entity
distinct from the person of the government or the Prince. There are
traces of the idea of the state as a corporate entity in the writings of
Hobbes, which have also exercised an influence on Pufendorf.10
However, even these two writers remained with the concept of gov-
ernment alone rather than developing a concept of a corporate entity
which embraced both the governor and the governed. The elements
which would make up the modern state in international law, govern-
ment, territory, and population, remained the property of the Prince.
He had a territory and a population, in a patrimonial sense. Such a
personalized concept of authority directs attention to individuals and
favors the retention of the medieval idea of a common law of human
beings applied to the leaders of nations. Grotian-style erudition pre-
vails into the eighteenth century to regulate the affairs of princes in
their relations with one another, but also in their domestic and even
private affairs.
It is with the Vattelian critique of Christian Wolff that one arrives
at the modern conception of international law, where sovereignty as
a legal concept comes to play a central part. Absolutely central is the
notion of the corporate character of the state. As a legal entity, it has
to be separate from both government and governed. It is the state, and
not the government or Prince, which is subject to international law.
It is and can be subject to international law only if it is sovereign, that
is, equally independent of all other states.11 What Jouannet is, above
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The Use of Force 115
all, anxious to stress is that law should have a dualist character in
what she calls the classical form of international law. It is essential to
the idea of the corporate character of the state that there should be
no relations of individuals with one another across state boundaries.
All the relations of individuals, for the purpose of international law,
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