From its earliest conceptions (European) international legal theory contemplated the foreigner’s mobility in terms of rights: rights to set forth and travel, to sojourn, to hospitality, to trade, and to share in common property.Footnote 1 Free movement rightsFootnote 2 all found voice in the work of early international jurists, including rights of passage, the right to leave one’s country,Footnote 3 the right of asylum, and (perhaps most striking for the modern international lawyer) the right to enter and reside in the territory of another state.Footnote 4 Likewise, the right of necessity played a significant and evolving role in shaping how international law framed and conditioned the foreigner’s stay.
By any measure, this presents as a dazzlingly impressive array of rights. It contrasts starkly with the widely held (current) assumption that the foreigner has – and has always had – less rights than the citizen vis-à-vis the imperial or sovereign power.Footnote 5 So, what do we make of this rights framework? Does it tell an originary story of universal human rights that has somehow gone awry and is now ripe for renewal? Who was the ‘foreigner’ in early conceptions of international law? Why did heFootnote 6 enjoy these rights? And is the casting of the foreigner as an outsider (welcome or unwelcome) with lesser rights than the citizen a timeless given? Or is the juridical figure of the foreigner a contingent historical artefact on which we need to reflect critically?Footnote 7
This is the first chapter in the genealogy of the foreigner-sovereign relation. Overall, the genealogy helps explain how policies such as mandatory detention and planned destitution have come to be characterised as lawful and legitimate responses to unsolicited migration by locating migration lawmaking within a longer jurisprudential tradition. The purpose of this chapter is to make visible who the figure of the foreigner was in early conceptualisations of international law. My central argument in this chapter has three elements: first, that the foreigner is a mutable figure and, therefore, that there is nothing inevitable about her ‘outsider-ness’; second, that her mutability was shaped by historical contingencies;Footnote 8 and third, that when the foreigner was a privileged European insider there was no discourse of ‘absolute sovereignty’. The chapter serves as a kind of prehistory of ‘absolute sovereignty’, in that it enables us to trace how the claim of ‘absolute sovereignty’ emerged as a common law doctrine (Chapter 3) and, in turn, became entrenched as a constitutional doctrine (Chapter 4).
In summary, my argument is that the ‘foreigner’ in early international law was conceptualised as an insider, not an outsider, a ‘civilised’ European, not a ‘barbarian’ non-European. In other words, the foreigner was a figure of privilege and power conceptually aligned with, rather than opposed to, the sovereign. As such, being a foreigner was historically an enabling, rather than residual, status, and there is nothing inevitable about the foreigner’s outsider-ness. Indeed, whether imperialists, aristocrats, men of letters, or merchants, it was quite natural for foreigners to cross bordersFootnote 9 precisely because they were European.
In this chapter, the sixteenth century, where the common historical narrative of European public international law begins, is my starting point. This is because it is European international legal theory that has – for better and worse – had global contemporary impact.Footnote 10 The chapter is divided into four parts, in which I examine selected treatises of four key international jurists: Vitoria, Grotius, Pufendorf, and Vattel – canonical authorities in public and international law and, more specifically, in the juridical framing of the foreigner-sovereign relation. In each instance, I consider the context in which the jurist was writing, who his foreigner was, and how he framed the foreigner’s rights.
That each jurist holds an authoritative place within the canon is well established. Vitoria’s contribution as a leader in the Salamanca School included theorisation of relations between (European and non-European) peoples – notably the Spanish and the ‘barbarian’ Indians – as an international legal problem (ius gentium).Footnote 11 Treatises of Grotius, whose work was strongly influenced by Vitoria,Footnote 12 are studied for the place Grotius is widely regarded to hold in international legal scholarship as the father of international law.Footnote 13 Grotius’ texts offer important insights into both the juridical framing of relations between European and non-European nations and peoples as well as intra-European relations. Pufendorf’s post-Westphalian texts are examined for their integration of the foreigner into sovereign relations between nation-states. Finally, Vattel is examined both for the authority he carries as a leading international jurist and, more specifically, because his authority is still invoked in the assertion of ‘absolute sovereignty’ in migration law and policymaking in Australia.Footnote 14 I turn first to Vitoria, whose work in the sixteenth century marked the emergence of a public international legal discourse in Europe.Footnote 15
2.1 Francisco de Vitoria (c 1485–1546)
A “scholar of empire”,Footnote 16 Vitoria offered, after the event, both a justification for the Spanish colonisation of the Indies and an apology for its excesses.Footnote 17 On the one hand, an abiding sense of economic entitlement, racial and religious superiority, and duty to pursue a Christianising and civilising mission in the New World meant that Vitoria’s international law and legal discourseFootnote 18 needed to legitimise Spanish travel, Christianisation, and profiteering in Indian territory in the service of imperial interests.Footnote 19 On the other, although it may at first seem counter-intuitive, his construction of the ‘barbarian’ Indian as a legal subject is best understood as a raison d’état – that is, as a gesture of (Spanish) self-interest. This is because the barbarian was made subject to the law yet unworthy of its protection, subjugated rather than outlawed.Footnote 20 So, what does the barbarian’s status tell us about who the foreigner was? Did Vitoria imagine the foreigner to be an outsider? Was the barbarian a foreigner? Or was the foreigner someone else? To make visible who Vitoria’s foreigner was, it is important to consider first the context in which he was writing.
2.1.1 Context: Imperialism, Conquest, and a Culture of Mobility
The Iberian Peninsula of the fifteenth and early sixteenth centuries, comprising politically and geographically fragmented kingdoms,Footnote 21 was already a society characterised by high levels of mobility. The ‘discovery’ of the Indies by Columbus in 1492 triggered a massive expansion of the Spanish Empire, including a significant amount of emigration from the metropole.Footnote 22 Economic hardship and the promise of wealth in the colonies served as push and pull factors for an estimated 250,000 to 300,000 emigrants from the Iberian Peninsula to the Indies,Footnote 23 an unprecedented level of emigration amongst European powers.Footnote 24
At the same time, Spain had a cultural and religious diversity that was greater than anywhere else in Europe.Footnote 25 Spanish mobility was characterised by foreign travel toFootnote 26 and fromFootnote 27 Spain for trade within Europe and across the Strait of Gibraltar,Footnote 28 as well as migratory movements that included seasonalFootnote 29 and urban migration.Footnote 30 Many migrant workers were from neighbouring countries.Footnote 31 So, the heterogeneity of Spanish society in the sixteenth century reflected often long-standing patterns of both internal and external migration. Indeed, with a prevailing “culture of mobility”Footnote 32 it was surely a society accustomed to the presence of foreigners engaged in labour and commerce.
Sixteenth-century Spain already had a long history of internecine strugglesFootnote 33 and religio-racial persecution.Footnote 34 Systemic discrimination reflecting class distinctions defined by blood and race were commonplace.Footnote 35 The push for religious homogeneity prompted decrees of expulsion as well as the Spanish Inquisition, primarily affecting the Jews and Moors, including conversos (Jewish converts to Christianity) and moriscos (Muslim converts), as well as other ‘heretics’ and marginalised groups such as the Roma.Footnote 36 This context is indicative of a sociopolitical dynamic in which conversos, moriscos, and other heretics were marked as outsiders subject to expulsion. Vitoria was himself de sangre semita – that is, of Jewish ancestry descended from conversosFootnote 37 – so for this context to permeate his conscious thought would have been almost unavoidable. However, as the following subsection shows, even though this was the context in which he was writing, it was not the context for which he was writing. This is so notwithstanding that certain features of Vitoria’s arguments may have been influenced by his personal circumstances as well as the broader exigencies of the Iberian context.Footnote 38
2.1.2 The Foreigner: Insider or Outsider?
As we know, part of Vitoria’s brief was to justify the Spanish colonisation of the Indies. In this connection, even his defenders such as Cavallar acknowledge that this meant that Vitoria’s treatises needed to maintain imperial power interests.Footnote 39 It is no surprise, then, that notwithstanding reports of gross brutality by the conquistadors and his own outrage,Footnote 40 he generated juridical authority for the perception that the ‘barbarian’ Indian was racially, culturally, and religiously inferior. Thus, for example, Vitoria acknowledged in the Indians attributes of method, order, and reasonFootnote 41 but simultaneously cast them as “insensate and slow-witted” on account of “their evil and barbarous education”.Footnote 42 He regarded them as “born in sin” but not having “the use of reason to prompt them to seek baptism or the things necessary for salvation”.Footnote 43 They were described as “peasants” who could be regarded as “little different from brute animals”.Footnote 44 Thus, although credited by some with crafting a legal framework that championed the rights of the barbarians,Footnote 45 Vitoria conceptualised Indians as outsiders (though not outlaws) within the imperial frame. In so doing, Vitoria maintained the power interests of the Spanish.Footnote 46 Indeed, by recognising true dominion in the barbarians,Footnote 47 jurisdiction over them could serve as an effective justification for social, political, and economic control – a control that Vitoria would later (re)claim,Footnote 48 articulating the bases on which the barbarians had passed under Spanish rule. Whether inadvertent, improvised, or intentional, the effect of this was to neutralise or negate any idea that power or control may have been wrested from the Spanish through the ideas he had earlier expressed.Footnote 49
Vitoria’s ‘just titles’ constructed the foreigner as a figure of privilege and power, as a rights-bearing subject who was a Spaniard, not an Indian. In doing so, it is clear that Vitoria was not encoding a broader framework of general application to outsider-ness. Had he done so, he might have formulated a framework that served and protected the interests of a different group of ‘outsiders’ – that is, those in Spain who were instead the targets of domestic policies and priorities of religious homogeneity that resulted in decrees of expulsion and the Spanish Inquisition. But that was not his purpose. Instead, Vitoria situated his legal framework in the New World physically, while his point of analytical and ideological departure remained always and already the ‘our world’ of Spanish interests. There, he privileged the foreigner (an insider), subjugated the barbarian (an outsider), and sustained empire. As the following subsection shows, this privileging is also reflected in the framework of rights accorded the foreigner.
2.1.3 On Rights: A Foreigner’s Framework
A key attribute of Vitoria’s foreigner was the right to travel and dwell in other countries (ius peregrinandi). Indeed, his theories asserted that, as long as he did no harm, his foreigner could not be barred by the barbarian from entry to the barbarian’s homeland.Footnote 50 To support this, Vitoria’s reasons may be grouped into three broad propositions: first, that the foreigner has a right to hospitality;Footnote 51 second, that he has a right to travel or residence; and third, that he should enjoy rights relating to entry, exile, and expulsion. This section looks briefly at each, showing that Vitoria did not conceptualise these rights as universal or cosmopolitan rights, but as reflecting contingent (European) interests in the specific context of legitimising Spanish imperialism.
2.1.3.1 The Right to Hospitality
In relation to hospitality, Vitoria reasoned that it is inhuman to treat strangers and travellers badly unless they are hostile,Footnote 52 and that borders were never intended to inhibit free movement.Footnote 53 He described expulsion or prohibition on entry as acts of war,Footnote 54 concluding that those who do no harm cannot lawfully be barred from entry.Footnote 55 Indeed, he asserted that it would be a monstrous and inhumane act to do otherwise.Footnote 56 Although qualified by the possibility of having a “special cause” (for example, “if travellers were doing something evil by visiting foreign nations”), the “humane and dutiful” obligation to extend hospitality to strangers was his starting point.Footnote 57 Drawing on the universalising edicts of divine law, which informed his natural law, Vitoria prohibited the barbarians from turning their backs on the harmless and exhorted them to welcome the stranger. Indeed, he declared that “to refuse to welcome strangers and foreigners is inherently evil.”Footnote 58 Finally, he asserted that it would be contrary to the maxim “love thy neighbour” to bar the Spanish from entry into the territory of the barbarian Indians.Footnote 59
2.1.3.2 Right to Travel and Reside
In recognising the right to travel and reside in the territory of another state, Vitoria recognised implicitly that an irrepressible peripatetic urge (whether voluntary or involuntary) predates, and cannot be contained by, the construction of nations or borders. Furthermore, he considered that their construction was never intended to inhibit free movementFootnote 60 and that to do otherwise would have been thought “inhuman in the time of Noah”.Footnote 61 Although he tempered the right to travel with an obligation to do no harm or detriment to others,Footnote 62 rather than reflecting high principle, framing the obligation in this way ensured that the travel and residence of the Spanish coloniser could not be construed as causing harm. This is because Vitoria saw fit simply to assume the travel of the Spaniards to be neither harmful nor detrimental to the Indians and, therefore, lawful.Footnote 63
2.1.3.3 Entry, Exile, and Expulsion
Concerning rights relating to entry, exile, and expulsion, Vitoria made three points which highlight the enormity of the affront to free movement that he perceived in the denial of entry and in acts of expulsion, banishment, or exile. In this vein, he asserted that the prohibition on entry in the first instance and expulsion in the second might be regarded as acts of war, meriting a ‘just war’ response. Such a response would, he said, be “within the bounds of blameless self-defence”Footnote 64 if, on account of the barbarians’ cowardice, foolishness, and ignorance, the Spaniards were unable to convince them of their peaceful intentions.Footnote 65 Finally, he suggested that banishment or exile of Spanish foreigners was akin to punishing them for a crime they had not committed; indeed, he declared that it is not lawful to banish visitors who are innocent of any crime. The broad premise of each of these points is that those who do no harm cannot lawfully be barred from entry to or otherwise excluded from territory. Indeed, citing Virgil’s Aeneid, Vitoria regarded expulsion, exile, or denial of entry of foreigners as a monstrous and inhuman act born of “barbarous customs”.Footnote 66
As the foregoing makes visible, Vitoria’s framework privileged the rights and interests of foreigners because of who he understood the foreigner to be. It was an imperialist rights framework that actively diminished the barbarian Indian, even though it ascribed to her legal rights and personality. Furthermore, it did not take into account an immediate social and historical context of medieval migrations to Spain of, in particular, the Jews, Moors, and Roma and their subsequent discrimination, marginalisation, persecution, and expulsion.Footnote 67 The Jews, Moors, and Roma were outsiders, but they were not Vitoria’s foreigners. Instead, Vitoria’s texts reveal a style of argument according to which only a (certain kind of) foreigner could assert rights to mobility and protection – a style of argument that, as we will see, has been (re)produced and (re)shaped across time and place. In other words, we begin to see that who the foreigner is understood to be has a profound influence on the way in which the foreigner-sovereign relation is juridically authorised, shaped, and used.
This outline of Vitoria’s foreigner, and his articulation of the foreigner’s attendant rights, provides an important starting point for understanding how the foreigner has been conceptualised in early international law. As the following sections show, although the juridical purposes of Grotius, Pufendorf, and Vattel became more variegated through the seventeenth and eighteenth centuries, the foreigner remained a European insider in international law (as imperialist, trader, or exile), with clearly articulated rights and entitlements. In other words, in the foreigner-sovereign relation, the foreigner remained aligned with, rather than oppositional to, the sovereign. I turn now to Grotius, often regarded as the “principal forerunner” of modern international law.Footnote 68
2.2 Hugo Grotius (1583–1645)
Grotius’ theories drew significantly on the earlier work of Vitoria,Footnote 69 and their respective colonial contexts bear many parallels. Whether out of respect for Vitoria’s theories, or as a strategy to influence (and undermine) the Spanish-dominated Portuguese political arena in the scramble for trade monopolies in the East,Footnote 70 his often emphatic reliance on Vitoria’s theories established a cord of continuity in international legal thinking which Grotius developed in significant ways.
2.2.1 Context: Trade Monopolies and the Thirty Years War
One of Grotius’ earliest projects was to write De jure praedae commentarius (Commentary On the Law of Prize and Booty),Footnote 71 originally titled De Indis (‘On the [East] Indies’). It was probably commissioned by the Dutch East India Company.Footnote 72
In the midst of court proceedings regarding the capture in the Straits of Singapore of the Portuguese ship the Santa Catarina, his task is said to have been to persuade public opinion that it was legitimate for the Dutch to claim as ‘prize’ the proceeds of such property.Footnote 73
De jure praedae draws most strongly on the rights to travel and trade enunciated by Vitoria.Footnote 74 However, in East Asia particular international relations and trade structures, notably with respect to China and India, attracted a more nuanced European response. Cavallar has suggested that these relations and structures demanded adaptations to the colonial project that explicitly acknowledged the rights of non-European communities and individuals.Footnote 75 Although this may be arguable – and Grotius certainly described the Indians of the Orient (in contrast to the American Indians) as “neither insane nor irrational, but clever and sagacious”Footnote 76 – it is also possible to see that Grotius’ primary interest was to undermine Portuguese claims on ‘discovered’ territories.Footnote 77 Coupled with this, he asserted the rights of trade and hospitality,Footnote 78 necessity,Footnote 79 (unarmed and innocent) passage,Footnote 80 and freedom of the high seas,Footnote 81 and used liberally the notion of ‘just war’ to justify the claim of ‘prize’.Footnote 82 This reflected his ultimate objective of conquering the trade monopoly of the Portuguese. Indeed, his treatise bore an anti-Iberian tone suggestive of this political-economic purpose.Footnote 83
In Grotius’ later treatise, De jure belli ac pacis,Footnote 84 his focus shifted, from the project of asserting and mediating trading rights on the high seas and in the East to Europe. This reflected the troubled times in which he was living, marked most significantly by the catastrophic Thirty Years War. This war of religion would take the lives of an estimated four million people, either directly through conflict or indirectly through its disastrous social and economic consequences, including famine and disease.Footnote 85
Embroiled in the religious turmoil that characterised the Thirty Years War, Grotius knew first-hand the life of a foreigner in exile. In 1619, he was sentenced to life imprisonment for an unspecified crime that would later be classed as treason.Footnote 86 In prison he was threatened with tortureFootnote 87 and held incommunicado, denied permission to see his wife, children, or friends.Footnote 88 In 1621, he fled to Paris from his native Netherlands after his wife effected his dramatic escape from prison in a book chest.Footnote 89 He lived in exile in Paris (1621–31) and then, after attempting to repatriate, returned to a life in exile in Hamburg (1632–34). He later returned to Paris as an ambassador for Sweden (1635–45), until shortly before his death.Footnote 90 It was during his first exile in Paris that he wrote De jure belli ac pacis (1625),Footnote 91 his most celebrated work. With this context in mind, it is no surprise that Grotius’ work speaks to the movement of foreigners not only with regard to trade and commerce, but also to that of the social and political upheaval of war.
2.2.2 Foreigners: Protecting ‘Prize’ and Seeking Peace
Grotius regarded mobility as being part of the natural and advantageous order of things, integrating decisively the rights and needs of the foreigner into his later work as part of his quest to craft a “plausible intellectual foundation for a peaceful world”.Footnote 92 Notably, he declared that “[i]t is not contrary to friendship to admit individual subjects”.Footnote 93 This suggests that, at least in the European context, Grotius viewed migration as a presumptively benign dynamic – that is, one that overcomes adversity by providing refuge to those in need as well as facilitating trade and commerce in the interests of host communities and states. In constructing rights crucial to the foreigner (to free movement, to necessity, and indeed to non-discrimination), Grotius tempered them with limitations (discussed in Section 2.2.3) that recognised the authority of the host state and community.
However, while the intra-European context is an important dimension to understanding who the Grotian foreigner was, in De jure praedae he cast the foreigner in the role of imperialising trader, thus employing an imperialist perspective that, as he made explicit, drew heavily on Vitoria’s work.Footnote 94 Indeed, it is clear that even the peaceful world he sought in his later treatise De jure belli ac pacis remained one between (European) sovereign (more or less) equals, which maintained at least implicitly the same structural diminishment of the (non-European) unequals that had underpinned his earlier conceptions of international law in De jure praedae. Furthermore, while the intra-European relations and the disruption caused by Europe’s religious wars may be taken to be Grotius’ immediate context in crafting De jure belli ac pacis, it seems clear that this later work drew on De jure praedae in significant respects.Footnote 95
In De jure praedae, Grotius was primarily focused on the movement of people for the purposes of imperial trade and commerce in the East Indies. But who did he understand the foreigners in the East Indies to be? As noted earlier, East Asia had international relations and trade structures more clearly recognisable to the European.Footnote 96 For example, in the early fifteenth century the Chinese admiral Zheng He had led seven voyages of Ming imperial fleets comprising as many as 350 ships and thousands of crew apiece as far as India, Arabia, and East Africa. So, as Manning has noted evocatively, “when the Portuguese mariner Vasco da Gama rounded the Cape of Good Hope and entered the Indian Ocean in 1498, he was joining an existing network of trade and migration rather than creating a new one.”Footnote 97 Just over a century later, it is clear that Grotius was aware of significant movements of non-European foreigners across many parts of South and East Asia, as well as between South and East Asia and East Africa.Footnote 98 Yet, although credited with rejecting the legal pretexts for taking tribal lands by force and resisting the use of international law to assert cultural or religious superiority or domination,Footnote 99 was he concerned about the rights and interests of the likes of Admiral Zheng and his cohorts? There is nothing to indicate that he was. Although there is some ambiguous – and contestable – evidence that Grotius was well disposed to protecting the rights and interests of the non-European,Footnote 100 there is scant evidence in his texts to indicate that he was seriously concerned about proclaiming or protecting their rights and interests qua foreigners.Footnote 101 As such, there is nothing to indicate that the Grotian foreigner was other than a European. On the contrary, the unequal power dynamics of the imperialist international law that characterised De jure praedae, particularly in the context of the quest for trade monopolies in East Asia, affirms the view that the Grotian foreigner was, like that envisaged by Vitoria, always and anywhere European. And, as the following subsection elaborates, as a European the Grotian foreigner enjoyed a range of enabling rights.
2.2.3 On Rights: A Matter of Mobility and Necessity
Grotius’ conception of international society emphasised certain rights (notably property rights) that were common to all human beings.Footnote 102 He constructed a legal framework with three elements: natural law (ius naturae), the law of nations (ius gentium), and volitional divine law (divinum voluntarium).Footnote 103 Drawing authority from these legal genres, Grotius’ framework of rights focused primarily on questions of mobility and necessity. This framework acknowledged and integrated the inherent tension between the autonomies of the sovereign on the one hand and the migration of the foreigner on the other. It did so by conditioning many of the rights articulated. That is, it vested rights in foreigners themselves as well as authority on the part of states to admit migrants and exiles.Footnote 104 The rights of passage, temporary sojourn, and necessity are illustrative. However, the right to enter and reside, to which I turn first, weighs more strongly in favour of the foreigner.
2.2.3.1 The Right to Enter and Reside
Grotius recognised foreigners as having the right to enter and reside in the territory of another state, whether temporarily or permanently.Footnote 105 In particular, he considered legitimate the right of passage for those desirous of “[carrying] on commerce with a distant people”Footnote 106 and the right of temporary sojourn for the purposes of health, shelter, “or for any other good reason”.Footnote 107 Likewise, he regarded “those who have been driven from their homes” as having the “right to acquire permanent residence in another country”.Footnote 108 So, although not explicitly asserting the obligation to grant asylum, such an obligation seems implicit in his articulation of the individual’s right to asylum and his acknowledgment of the futility of exile where there is nowhere for the exiled person to go.Footnote 109 This is also true of the right of those expelled from their homes to acquire a permanent residence in another country.Footnote 110 Finally, Grotius considered that the rights of a people were not extinguished by migration, whether such migration was of the people’s own accord or under compulsion.Footnote 111
2.2.3.2 Rights of Passage and Temporary Sojourn
Grotius articulated the right of passage as a right only to be exercised “for legitimate reasons”, amongst which he included forced migration or trade and commerce.Footnote 112 From the point of view of the migrant, right of passage must first be demanded; but then if refused it may be made by force, as long as passage is demanded “without evil intent”.Footnote 113 As such, passage could be both legitimately asserted and (if ill intentioned) resisted. In analytical (and contextual) contrast to Vitoria, benign purpose was not to be assumed. Furthermore, Grotius asserted that the right of temporary sojourn must be for “good reason” and the right to acquire a permanent residence in another country subject to the obligation to “observe any regulations which are necessary to avoid strifes”.Footnote 114
In relation to the right of necessity, Grotius concluded that the right to enjoy basic necessities by non-citizens might temper the authority of a state to condition their presence in its territory. For example, Grotius articulated a primitive state of community ownership that may be revived by necessity, or the imperative of survival; the right of necessity, he said, overrode the right to private ownership because the enjoyment of private ownership remained embedded with an obligation to “depart as little as possible from natural equity”.Footnote 115 By drawing no distinction between the content of its enjoyment for citizens and foreigners (remember that contextually both citizen and foreigner were European), Grotius made clear that the right of necessity must also be understood as extending to foreigners.Footnote 116 Its scope included food,Footnote 117 clothing,Footnote 118 and health.Footnote 119 However, in a gesture of reciprocity among sovereign equals and their subjects, Grotius also conditioned such rights. Necessity, he declared, should be “unavoidable”, cannot be exercised in case of equal need, and should carry with it an obligation of restitution “whenever this can be done”.Footnote 120 Again, he made no distinction between the foreigner and the citizen.
2.2.3.3 Right to Non-Discrimination
The final right of immediate import is the right of foreigners to non-discrimination on the basis of nationality. Grotius articulated this right such that any rights to which foreigners are also entitled – as compared to matters of privilege or favour – “cannot be denied to one people alone, except on account of previous wrongdoing”.Footnote 121 This prohibition on discrimination would seem to be concerned with distinctions between different groups of foreigners rather than between foreigners and the citizenry, as Grotius’ starting premise is that he is only dealing with rights to which foreigners as well as citizens are entitled. “Things permitted” other than rights – in other words, things granted as a favour – were not included in Grotius’ conception because, he said, they did not fall within the law of nature.Footnote 122 A concession that citizens have different rights to foreigners seems implicit here, but the nature of the rights that he asserted in this context – “to hunt, fish, snare birds, or gather pearls, to inherit by will, to sell property, and even to contract marriages”Footnote 123 – included significant rights of a social and economic nature and rights of survival or necessity as well as other rights that might be considered important for an individual to lead a dignified life, or, in Grotius’ words, “the right to such acts as human life requires”.Footnote 124 Again, this framing would seem to make clear that the Grotian foreigner was, always and everywhere, a European and, in that sense, an insider.
To conclude, therefore, even with the spatial shift from international law’s imperialising reach to the intra-European context, we can see that the foreigner’s European ‘insider-ness’ remains. This is because the point of analytical and ideological departure is that the foreigner (like the citizen) is an insider in (intra-European) sovereign relations with (more or less) equal rights even though he is physically outside his country of citizenship. Again, therefore, we see that there is nothing inevitable about the foreigner’s ‘outsider-ness’ in the foreigner-sovereign relation; on the contrary, Grotius was casting the foreigner in his own image. And as Section 2.3 shows, Pufendorf took a similar approach.
2.3 Samuel Pufendorf (1632–1694)
Over the course of a prolific career, Pufendorf published a number of treatises that dealt directly with the rights of foreigners largely through the prism of toleration, understood as a right to freedom of religion, albeit a right lacking an abstract, theoretical character.Footnote 125 A trilogy of Pufendorf’s treatises are of particular interest:Footnote 126 De jure naturae et gentium libri octo (1672);Footnote 127 De officio hominis et civis juxta legem naturalem libri duo (1673);Footnote 128 and De habitu religionis Christianae ad vitam civilem (1687),Footnote 129 which has been regarded as an appendix to De officio hominis.Footnote 130
Pufendorf’s work was informed by the Thirty Years War of religion and the subsequent effects of the Revocation of the Edict of Nantes.Footnote 131 Most importantly for present purposes, Pufendorf’s treatises, like those of Grotius, clearly anticipated, indeed assumed, mobility to be part of the natural order of things and necessary for the purposes of self-preservation,Footnote 132 particularly in the face of religious intolerance. However, neither his defence of intellectual freedom and robust toleration of religious, scientific, and philosophical ideas nor the necessary corollary of free movement would be clear through an examination of his text without also having an understanding of the context in which he was writing.Footnote 133 The following subsection contextualises the work of Pufendorf in order to make visible his conceptualisation of the foreigner-sovereign relation, specifically his emphases on the foreigner’s rights to mobility and self-preservation and his insistence on the sovereign’s tolerance of the foreigner.
2.3.1 Context: War and Peace, Prison and Persecution
Like Grotius, Pufendorf and his family had first-hand experience of the terrors of the wars of religion, which were concluded by the Peace of Westphalia in 1648. Pufendorf was born in Saxony in 1632, in the midst of the Thirty Years War. One of eleven children from a poor Lutheran family, he was among the seven who survived.Footnote 134 Later, in 1658, while tutor to the family of Sweden’s special envoy in Copenhagen, Pufendorf was imprisoned for eight months along with the other members of the ambassador’s retinue. This followed the unexpected revival of war against Denmark by the Swedes.Footnote 135 He would also bear witness to the expulsion of the Huguenots from France following Louis XIV’s Revocation of the Edict of Nantes.Footnote 136
Writing in the wake of the Peace of Westphalia, Pufendorf’s work retained many of the natural law underpinnings that characterised that of Vitoria and Grotius. It was in prison in Copenhagen that Pufendorf wrote his first major work, Elementorum jurisprudentiae universalis libri II.Footnote 137 After his release in 1659, suffering serious illness and almost dying in a shipwreck, he moved to study in Leiden and later to teach in Heidelberg (1661–68) and Lund (1668–77). He then moved to Stockholm (1677–88) as royal historiographer.Footnote 138
In 1688, Pufendorf was called to the court of Friedrich Wilhelm of Brandenburg in Berlin.Footnote 139 Friedrich Wilhelm was known for his “toleration politics”,Footnote 140 which appear to have drawn him to Pufendorf. Friedrich Wilhelm had issued the Brandenburg Tolerance Edict (1664), which gave equal rights to Lutherans and Calvinists and which prohibited open criticism of other religions by priests. Later, he issued the Edict of Potsdam (1685) in direct response to the revocation in the same year of the Edict of NantesFootnote 141 by Louis XIV. The Edict of Potsdam provided for the safe passage of French Protestants (Huguenots) to Brandenburg-Prussia and authorised them to hold church services in their native French.Footnote 142 The dragonnades policy of Louis XIV (1681), designed to harass and intimidate the Huguenot population in France, had already caused the flight of thousands to seek asylum in England, Germany, Holland, Switzerland, and the North American colonies.Footnote 143 These numbers would rise to an estimated 200,000 people following the Revocation of the Edict of Nantes.Footnote 144 After issuing the Edict of Potsdam, Friedrich Wilhelm’s Brandenburg-Prussia received an estimated 20,000 French Huguenots; the edict also triggered migration by the persecuted of Russia, the Netherlands, and Bohemia.Footnote 145 With this as his context, Pufendorf clearly anticipated, indeed assumed, mobility to be part of the natural order of things.
2.3.2 Becoming a Foreigner: An Act of Self-Preservation
Pufendorf recognised the right of an individual to flee to the protection of another state for the purposes of self-preservation, particularly as an expression of freedom of religion. In the same connection, he gave expression to the right of passage, asserting that “no one can question the barbarity of showing an indiscriminate hostility to those who come on a peaceful mission”.Footnote 146 In De habitu religionis Christianae, Pufendorf offered, among other things, a rationale for the toleration politics that had informed Friedrich Wilhelm’s offer of asylum to the Huguenots embodied in the Edict of Potsdam. Indeed, it was this treatise, dedicated to Friedrich Wilhelm, which is said to have prompted his appointment to the Brandenburg court.Footnote 147
Reflecting this post-Westphalian context, it would seem that Pufendorf’s international legal theories were less about imperial ambition and expansion than navigating post-Westphalian sovereign relations among European equals. This may explain why, as in Grotius’ later work, there is less in Pufendorf’s work that is indicative of the foreigner as coloniser and more about the status and attributes of legal subjects, whether citizen, resident, sojourner, or alien.Footnote 148 His focus appears instead to have been on the rights, statuses, and attributes of the foreigner – still a European – as émigré and exile in Europe. Thus, as Section 2.3.3 shows, under threat of injury or hostile intent, he took the view that it is preferable “to emigrate”, “to look out for oneself by fleeing”, or “to place oneself under the protection of another state”.Footnote 149 Likewise, he recognised that such departure and entry into the jurisdiction of another state may be compelled by extreme necessity or by hostile force.
2.3.3 On Rights: Mobility as a Consequential Right
In articulating a rights framework for the foreigner, Pufendorf can be understood as treating mobility as a right, but more as a right of self-preservation consequential to other rights than as a right in itself. Specifically, he reaffirmed the rights to engage in trade and commerce and to freedom of conscience and religion.
To Pufendorf, inter-state trade and commerce remained a key feature of social and economic life and, as he acknowledged, did not compel the coalescence into one state of those who engage in trade and commerce between each other.Footnote 150 In this sense mobility must be understood as a necessary corollary of the right to engage in trade and commerce. Perhaps more significantly, Pufendorf recognised the right of an individual to flee the state in which she is a citizen. Contextually, the premise of this right to free movement was the right to freedom of conscience and religion and, in the interests of self-preservation, gave rise to a consequential right to claim the protection of another state.Footnote 151 He recognised that some states do not permit emigration without their express consent or the surrender of a suretyFootnote 152 – that is, where exit is controlled or otherwise authorised. However, he regarded it as “preferable that a free man be understood to have reserved for himself a license to emigrate at his discretion”.Footnote 153 While the price for this appears to have been the loss of citizenship, Pufendorf considered such an émigré to be a (Socratic) “citizen of the world” rather than “someone assigned to a certain lump of soil”.Footnote 154
As a corollary of mobility, Pufendorf constructed legal subjects with a hierarchy of attachment that is more nuanced. In his estimation, the (“native or naturalized”) citizen enjoyed full rights,Footnote 155 the resident partial rights,Footnote 156 the sojourner a less stable form of temporary attachment, and the alien (who, he said, intends to remain a short time) no attachment at all.Footnote 157 He was mindful, however, of the “poverty of language” that compels the use of a single word to express both status and attributes.Footnote 158 Applying this reasoning, ‘alien’ may denote the status of an individual, but it may also be considered an attribute because it is conceived as a passive quality.Footnote 159 Here, Pufendorf hinted at the attendant risks of assuming attributes to inhere in status, not least because “several statuses can exist concurrently in the case of a single person”.Footnote 160 So, while he denied that the status of citizen inheres in the resident alien, foreigner, or temporary inhabitant,Footnote 161 he nevertheless characterised them as ‘citizens of the world’.
In exploring whether a people is bound to endure a prince’s indignities and abuses, whether contractual, social, physical, or legal, Pufendorf was clear about the right to flee and seek refuge elsewhere:
Even when a prince threatens the most dreadful injury with a hostile intent, it is preferable to emigrate, to look out for oneself by fleeing, or to place oneself under the protection of another state.Footnote 162
Here, Pufendorf departed from Grotius, who he regarded as wrongly asserting that there is no right of a people to leave a state as a group. The Grotian logic appeared to gesture to the continued existence of society through the consolidation of sovereignty,Footnote 163 but Pufendorf argued that if there is an individual right to emigrate, it would follow that such a right should also apply to groups, even if it serves to weaken the state from which they have come.Footnote 164 However, he did not equate this with withdrawal of sovereignty. Rather, he said, it is vital that the individual or group physically leave the territory of the state:
For otherwise there would be supreme confusion of sovereignties, if whole cities were permitted to withdraw themselves from the sovereignty of their own state at their pleasure and either subject themselves to another sovereignty or establish their own special commonwealth thereafter.Footnote 165
At the same time, Pufendorf recognised that such departures and entry into the jurisdiction of another state may be compelled by “extreme necessity”Footnote 166 or by “hostile force”.Footnote 167 In so doing, he effectively recognised that the right to survival and to asylum is “licit not only for individual citizens – at least those bound by no other bond than the common bond of citizens – but also for whole cities and provinces, where there appears to be no other way of promoting their welfare”.Footnote 168
In sum, therefore, to give leverage to the rights to self-preservation, freedom of religion, and conscience, and to engage in trade and commerce, the right to freedom of movement has to be understood as a consequential right implicit in the mobility that inhered in the figure of the foreigner. Like Vitoria and Grotius before him, this was a framework of rights conceptualised by Pufendorf for the European, a ‘foreigner’ whose ‘insider-ness’ in international law gave him – as a (Socratic) ‘citizen of the world’ – mobility as a right consequential to other rights. I now consider the texts of the Swiss jurist Vattel, writing in the eighteenth century.
2.4 Emmerich de Vattel (1714–1767)
Vattel was fundamentally a natural law theorist, even though it has been argued that he “prepared the ground for the era of uninhibited positivism.”Footnote 169 His most influential treatise, The Law of Nations, was first published in 1758.Footnote 170 There is no doubt that the invocation of Vattel has had enduring significance in the making of migration law in the common law world,Footnote 171 not least in the context of Australian jurisprudence.Footnote 172 This is because the theories of Vattel and his construction of law are regarded as highly responsive to notions of state sovereignty, a factor attributable at least in part to the context in which he was writing.
2.4.1 Context: Conflict, Trade, and Religious Antipathy
Vattel was born a subject of the king of Prussia in 1714 in the principality of Neuchâtel. The son of an ennobled Protestant minister and the daughter of Neuchâtel’s counsel at the Prussian court, Vattel was of aristocratic background but of limited means and therefore impelled to offer his services for remuneration, which he did as a diplomat. Although it would seem that the positions he held were modest and his functions light, this gave him time to write.Footnote 173
The Law of Nations was written in the gathering storm of the Seven Years War and published at its height. This was a war with multiple intra- and extra-European flashpoints driven by the antagonisms of competing colonial and trade interests among European powers.Footnote 174 An examination of Vattel’s text also suggests an awareness of the human realities of migration, informed not only by the general recognition of rights to free trade and commerce, but also in large measure by continuing Catholic-Protestant antipathies that had long driven conflict, persecution, and flight.Footnote 175 Indeed, it would seem that the Vattelian framework of rights for the foreigner – which Vattel regarded as proceeding from natural lawFootnote 176 – had a strong nuancing effect on his conceptualisation of the foreigner-sovereign relation. Vattel’s foreigner was, like the Vitorian, Grotian, and Pufendorfian foreigners before him, a ‘civilised’ Christian European. The analysis of Vattel that follows affirms the view that early international law’s foreigner was an insider, not an outsider – a figure whose mobility was privileged and enabled by international law, neither diminished by nor residual to it.
2.4.2 Foreigners: Free Movement and a Just Assistance
An important dimension to Vattel’s theories is that they were grounded in the view that there is an equality between sovereign states that secures for their people the bond of a common humanity,Footnote 177 a bond whereby states will not “refuse a retreat to the unfortunate” and will do so free from “unnecessary suspicion and jealousy” or “groundless and frivolous fears”.Footnote 178 We return to the same question: who is Vattel’s foreigner? Or, put another way, between whom is this bond of a common humanity shared?
Like Grotius and Pufendorf, but unlike Vitoria, Vattel was principally focused on relations between different populations within Europe. His immediate context was the even more narrowly bounded but culturally and linguistically diverse region of Switzerland, comprising multiple small but independent principalities that were yet to federate. For these principalities, trade and other relations were well understood to give rise to mutual obligation and the social and economic imperatives of a (European) mobility. However, that is not to suggest that Vattel was not concerned with the wider world, for he undoubtedly was.
Vattel recounted a story which demonstrates that he too was influenced by the foreigner-barbarian dichotomy so strongly framed in the influential treatises of Vitoria. It is the story of Captain Bontekoe, a Dutchman, who,
having lost his vessel at sea, escaped in his boat, with a part of his crew, and landed on an [Indonesian] coast, where the barbarous inhabitants refusing him provisions, the Dutch [justly] obtained them sword in hand.Footnote 179
Vitoria also cited the highly restrictive practices of China and Japan, where “all foreigners are forbid to penetrate without an express permission”.Footnote 180 In contrast, there is no evidence that he regarded Chinese or Japanese travellers as enjoying, for example, rights as foreigners in Europe. Rather, his reference to China and Japan served simply to contrast those countries’ restrictive practices with the more liberal practices in Europe, where “the access is everywhere free to every person who is not an enemy of the state”.Footnote 181
The only exception that Vattel cited to the free movement he promoted as a liberal European virtue was that of people he described as “vagabonds and outcasts”Footnote 182 – probably a reference to the Roma and other socially or culturally marginalised populations. This suggests that Vattel’s foreigner, for whom he outlined a host of significant rights, was still a European in (or from) Europe.
2.4.3 On Rights: Sovereignty and the Duties of Humanity
Although Vattel located considerable power and choice in the hands of the sovereign, there are some critical provisos in his work affecting the sovereign’s relation with the foreigner. For example, he described a right to emigrate as arising from several sources, including as a natural right.Footnote 183 Moreover, he asserted that the state must “not refuse human assistance to those whom tempest or necessity obliged to approach their frontiers”.Footnote 184 This proviso is typical of the way in which Vattel qualified sovereign power. For example, he declared that
Since the lord of the territory may, whenever he thinks proper, forbid its being entered … he has, no doubt, a power to annex what conditions he pleases to the permission to enter. This, as we have already said, is a consequence of the right of domain.Footnote 185
Then, immediately following these observations, Vattel added a critical qualifier, which he posed as a rhetorical question:
Can it be necessary to add, that the owner of the territory ought, in this instance, to respect the duties of humanity?Footnote 186
Anticipating the possibility that the entry of foreigners may be resisted, Vattel later cautioned that “no nation can, without good reasons, refuse even a perpetual residence to a man driven from his country”, unless “particular and substantial reasons prevent her from affording him an asylum”.Footnote 187 In this connection, Vattel declared that such reasons should be “free from unnecessary suspicion and jealousy” and should not refuse a retreat to the unfortunate “for slight reasons, and on groundless and frivolous fears”.Footnote 188
Likewise, Vattel stated that there were cases in which the sovereign “cannot refuse an entrance into his territory”.Footnote 189 This, he said, included a “duty towards all mankind” that might oblige the sovereign “to allow a free passage through, and a residence in his state.”Footnote 190 Vattel also addressed the right of innocent passage, which was intended to safeguard “the general right of traversing the earth for the purposes of mutual intercourse, of carrying on commerce with each other, and for other just reasons.”Footnote 191 Thus, subject only to the qualification that passage would be “prejudicial or dangerous”, the sovereign was, he said, “bound to grant a passage for lawful purposes, whenever he can do it without inconvenience to himself”.Footnote 192 Moreover, he said that the sovereign “cannot lawfully annex burdensome conditions to a permission which he is obliged to grant, and which he cannot refuse if he wishes to discharge his duty, and not abuse his right of property.”Footnote 193
Thus, for Vattel, the foreigner-sovereign relation was significantly affected by his view that an important collection of rights necessarily attends the foreigner and that the power to exclude her should only be exercised in extreme circumstances. In this connection, Vattel articulated the right to emigrate and a range of related rights, including the rights to leave and reside elsewhere, to travel and sojourn, to reside in a foreign country (including as a result of exile or banishment), and the right of necessity. He also underscored the concomitant obligation of hospitality.
2.5 The Foreigner: Always and Already European
This genealogical reading of Vitoria, Grotius, Pufendorf, and Vattel has noticed who the figure of the foreigner was for each jurist. By reading their texts in a way that is attentive to the genre of their writing – and the way in which language, purpose, time, and context shaped their arguments – we have seen how the meaning of ‘foreigner’ is mutable. The way in which the figure of the foreigner was framed by each jurist was contingent upon his context and purpose, as well as by time and place. For the most part, the foreigner within the foreigner-sovereign relation was one of two types. On the one hand, he was an intra-European foreigner for whom migration was framed as a human necessity and reality (as trader or exile). On the other, he was an imperialist who, carrying a host of self-proclaimed rights in his pocket,Footnote 194 could conquer and claim the coastlines of the New World. Thus, by treating the figure of the foreigner as an historical artefact, shaped and rationalised by contingent events that vary temporally and spatially, we see that her juridical history repudiates the inevitability of her outsider-ness.Footnote 195
To frame the figure of the foreigner as a European insider, each jurist has drawn on a range of legal genres and developed a repertoire of rights and topics moulded and shaped to suit the interests of his foreigner. So, for example, biblical injunctions and natural law precepts shaped Vitoria’s exhortations to welcome strangers and travellers and to offer them hospitality. These were, in turn, framed as rights of the foreigner under the law of nations (or peoples) (ius gentium). However, although tempered by an obligation on the foreigner to do no harm to the ‘barbarian’ Indian, this obligation may be understood as an empty gesture in view of Vitoria’s (ex post facto) assumption that the travels of the Spanish foreigners were neither harmful nor detrimental to the ‘barbarian’ Indians, and their intentions peaceful. Finally, then, if the foreigner’s peaceful attempts to assert his rights were not met with barbarian acquiescence, those rights were framed in ways that meant they could be lawfully obtained by force (‘just war’). This pattern of argument tells, above all, an imperialist story of (European) dominance and self-interest.
As this chapter has traced, over time and depending on context, the repertoires and patterns of argument that were used to shape the figure of the foreigner and, in turn, outline a rights framework became more complex. Thus, as my examination of Grotius, Pufendorf, and Vattel suggests, their juridical purpose and outlook was (in contrast to Vitoria’s) not purely imperial, even though, as we have seen, the styles of argument voiced by Vitoria retained a continuing relevance and resonance. Rather, conceptualisations of the foreigner as a (European) insider also related to governance of intra-European mobility and attendant social, economic, and political relations, including in the context of Catholic-Protestant tensions.Footnote 196 This suggests that wherever the work of international law was situated physically, its point of analytical and ideological departure remained Europe and the European.
So, the foreigner was – always and anywhere – a European insider in early international law. In contrast, the non-European remained a ‘barbarian’ outsider, enclosed in a legal framework within which she was accorded (at best) implied rights but no corresponding power to enforce them. Thus, although from time to time we have seen the non-European vested with a right to share in common property and to trade, such rights were qualified. Furthermore, we have seen no reciprocal right to emigrate – that is, for a non-European to become a foreigner on European soil. This reminds us that early international law did not seriously contemplate the non-European as a foreigner entitled to benefit from legal rights and protections on that account.
In the intra-European context, it is evident that the way in which each jurist thought about the relation between the sovereign and the foreigner, as a bearer of individual (and occasionally collective) rights, was more nuanced. While Grotius, Pufendorf, and Vattel each tempered their foreigner’s rights framework with sovereign authority, they were (for the most part) framing mobility (including in some instances a perpetual or permanent residence) as a natural modus vivendi between nations and peoples. To do this, they expanded their repertoire of rights and topics to emphasise such rights as freedom of religion and the right (of the individual) to self-preservation.Footnote 197 In this way, they gave traction to the political-economic imperatives of mobility, upholding the interests of both people and the state. However, as we know, the people, the states, and their respective interests were all European.
In summary, this chapter has made visible the mutability of the foreigner as a juridical figure. It has shown how conceptualisations of the foreigner as a (rights-bearing) European insider in early international law do not square with the current assumption that the foreigner is – and has always been – an excludable outsider with less rights than the citizen. In other words, it has shown that because early conceptualisations of the foreigner – as European imperialist, émigré, or exile – treated foreignness as an enabling rather than residual status, there is nothing inherently or inevitably ‘outside’ about the juridical figure of the foreigner. Rather, it tells us that the figure of the foreigner is a juridical artefact whose status and rights have been shaped by historical contingencies in furtherance of certain political-economic interests. And importantly, the analysis suggests that the characteristics of the foreigner of early international law – a figure of privilege and power – explain why there was no discourse of ‘absolute sovereignty’ during that period.
This chapter has provided an entrée into a complex institutional story of the ideas, practices, and forms of engagement that have, over time, shaped the foreigner-sovereign relation. It sheds light on the particular styles of argument that have been used to produce, sustain, and shape how the foreigner within the foreigner-sovereign relation is conceptualised. Together with the remaining two chapters in the genealogy, this will enable us to see in Part II, with greater clarity, how these styles of argument continue to be discursively (re)produced and (re)shaped by contemporary lawmakers.
Chapter 3 argues that the foreigner became a more complex figure within the foreigner-sovereign relation as the political-economic context of human mobility changed. It focuses on the nineteenth century, a period in which we see the alignment of the foreigner with the sovereign wane and ‘absolute sovereignty’ emerge as a common law doctrine – a tool for the exclusion of a new kind of foreigner.
