Introduction

My first encounter with Professor Detlev Vagts took place far from Cambridge, Massachusetts. I was browsing through the foreign law section in the library at Monash University, in distant Melbourne, Australia, when I came across his article in the Harvard Law Review on a topic that interested me a great deal at the time – the status of multinational corporations (MNCs). These entities, which have now acquired such enormous significance, were presented by Professor Vagts in a more benevolent light than I – an undergraduate law student who had been inspired by the ideals of the New International Economic Order – would care to see them. It was hard to imagine that a few years later I would have the great privilege of being a student in his class, Transnational Legal Problems, at Harvard Law School. This class addressed, in particular, the relationship between US constitutional law and international law, a field that I now know as ‘Foreign Relations Law’. For a few of us who saw ourselves as determinedly cosmopolitan – my close colleagues in that class included Pieter Bekker and Andrea Bianchi – this emphasis on domestic law was somewhat disturbing, particularly when it was further asserted that domestic law had precedence in the event of a conflict between these two systems. But that course, despite the discomfiture it generated, proved very significant and even in some ways prescient.

The tragic events of 9/11 have led to a number of challenges to international law and organization. Prominent among these is the Bush Administration pre-emption doctrine, articulated in the US National Security Strategy, that basically proposes that the US can take action, in self-defence, against any ‘emerging threats’. It purports, in effect, to rewrite the laws regulating the use of force: under Article 51 of the Charter of the United Nations, states have an ‘inherent right’ to self-defence, but this is in response to an ‘armed attack’. International lawyers have suggested that an imminent threat of armed attack might suffice to enable a state to respond in self-defence. It would be impractical to require states to experience an actual attack before being able to respond with force. The Bush doctrine, however, clearly goes beyond the situation of an imminent attack, suggesting rather that even an ‘emerging threat’ could justify the use of force in self-defence. A further dimension of the National Security Strategy suggests that the targets of this new doctrine are states that might be characterized as ‘rogue states’ – the most prominent of which are Iraq, Iran and North Korea.

The articulation of this strategy has inevitably caused intense controversy because it represents a radical departure from the existing law on the use of force. Scholars have thus focused on questions such as the relationship between pre-emption and the law of the Charter; how this doctrine can be reconciled with the law of the Charter; and whether the law of the Charter should be interpreted to accommodate this departure in order to meet the new challenges confronting the international community as a consequence of terrorism.

Introduction

International law is universal. It is a body of law which applies to all states regardless of their specific and distinctive cultures, belief systems and political organizations. It is a common set of doctrines which all states, whether from Europe or Latin America, Africa or Asia use to regulate relations with each other. The association between international law and universality is so ingrained that pointing to this connection appears tautologous; it is today hard to conceive of an international law which is not universal. And yet, the universality of international law is a relatively recent development. It was not until the end of the nineteenth century that a set of doctrines was established as applicable to all states, whether these were in Asia, Africa or Europe.

The universalization of international law was principally a consequence of the imperial expansion which took place towards the end of the ‘long nineteenth century’. The conquest of non-European peoples for economic and political advantage was the most prominent feature of this period termed, by one eminent historian, the ‘Age of Empire’. By 1914, after numerous colonial wars, virtually all the territories of Asia, Africa and the Pacific were controlled by the major European states and this resulted in the assimilation of all these non-European peoples into a system of law which was fundamentally European in that it derived from European thought and experience.

Introduction

While Hugo Grotius is generally regarded as the principal forerunner of modern international law, historians of the discipline trace its primitive origins to the works of Francisco de Vitoria, a sixteenth-century Spanish theologian and jurist. Consequently, it is entirely appropriate that the Carnegie endowment commenced its renowned series of Classics of International Law with Vitoria's two famous lectures, De Indis Noviter Inventis and De Jure Bellis Hispanorum in Barbaros. Traditional approaches to Vitoria's work and his place within the discipline pointed, among other things, to Grotius' indebtedness to the teachings of Vitoria, to Vitoria's identification of certain fundamental theoretical issues confronting the discipline and to the enduring significance of Vitoria's thinking on the law of war and on the rights of dependent peoples.

Vitoria's two lectures, as their titles suggest, are essentially concerned with relations between the Spanish and the Indians.