Commentary – To »do honour to human society«

Unlike other texts in this collection, Emer de Vattel’s groundbreaking remarks about the need to spare certain buildings and objects from destruction in war do not respond to one specific case of translocation. Le Droit des Gens, of which this excerpt constitutes only a small fraction, is a monumental intervention in the law of nations. Its publication in 1758 coincided with the early years of the Seven Years’ War, a European conflict fought on a global scale, and has in fact been described as one of the war’s »most influential intellectual products« (Pitts 2018, pp. 68–9). In addition to its global dimensions, the Seven Years’ War became distinctly local to Vattel when the Prussian king Frederick II (who also ruled the principality of Neuchâtel) invaded Saxony in August 1756, which marked the beginning of the war on the European continent (Pitts 2018, p. 69). Thus, while Le Droit des Gens does not address concrete instances of dislocated or destroyed cultural property, its theoretical ideas can nevertheless be connected to an armed conflict in which its author was implicated.

The excerpt from Le Droit des Gens in question hails from book III (On War), chapter IX (Of the Right of War, with Regard to Things Belonging to the Enemy), which deals exclusively with the taking and destruction of enemy possessions in war. Vattel posits that a state waging war against an enemy has the right to take enemy possessions for two reasons: one, to retrieve the state’s own possessions held by the enemy, including reparation for damages; two, to weaken the enemy by depriving him of means to resist (§§160–61). As such, he relies heavily on the work of several earlier legal thinkers, including, notably, Hugo Grotius’ influential De Jure Belli ac Pacis (DJBAP, 1625).

In §164, Vattel discusses booty, or moveable property taken from the enemy. Booty is contrasted with immovable property, which is subject to conquest. Following Grotius, Vattel posits that booty may be taken in war; these spoils, regardless of the individuals who seize them, become the property of the sovereign. When it comes to the distribution of the spoils, Vattel cites the ancient Romans for their practice of distributing part of the booty to the soldiers and the bulk of it to the treasury (see also Grotius 2005, p. 1337 and further).

Throughout the chapter, Vattel emphasises the need for moderation and prudence: seizing and destroying enemy possessions should only ever be done in a way commensurate with the injustices committed by the enemy, and so that an equitable and lasting peace can be achieved. In his focus on moderation and the related concepts of clemency and humanity, Vattel cites Cicero, and in doing so mirrors Grotius, to whom these moral philosophical principles were similarly important. Vattel’s examples in this chapter are almost exclusively European, with the exception, perhaps tellingly, of the bombardment of African Mediterranean towns: the utter destruction of a town, otherwise deemed excessive, he seems to tolerate in the case of »those maritime towns of Africa, those nests of pirates« (§167). Hence, while he does not explicitly limit the applicability of his comments to any particular part of the world, European instances of property translocation seem to be foremost on his mind. At the same time, Vattel’s observation that Louis XIV’s bombardments of Algiers and Genua were judged very differently, shows a certain ambivalence: he is, perhaps, admitting that his fellow Europeans were applying double standards.

In the key paragraph §168 Vattel takes a decisive step forward in thinking about the protection of cultural heritage (Miles 2008, pp. 300–02). With his call to spare certain buildings and objects »which do honour to human society« from destruction in wartime, he was one of the first modern thinker to identify a special category of property deserving of protection. Once more, Vattel builds on Grotius, who had recognised special categories of objects – including sacred objects and public ornaments – and had recommended, if rather obliquely, that these be spared in wartime (DJBAP, book III, chapters V and XII). Vattel is fairly specific about the kind of objects needing to be safeguarded: these include »temples, tombs, public buildings, and all works of remarkable beauty«; in other words, »monuments of art and models of taste«. In the conclusion to the chapter he reinforces the point, arguing once more against »the wanton destruction of public monuments, temples, tombes, statues, paintings, &c.«. While building types like temples, tombs, and public monuments have a universal ring to them, other qualifiers Vattel uses, such as paintings, sculptures, and »models of taste«, adhere to categories in a specifically European discourse of art. Vattel’s chosen examples shed further light on this issue: he deplores the destruction of classical Rome by the Goths and commends King Gustavus Adolphus of Sweden for deciding against the ravaging of the electoral palace in Munich when the latter invaded Bavaria in 1632. Again, he seems to be thinking primarily of European heritage, both ancient and modern.

Most significant in Vattel’s treatment of the matter is the motivation given for the need to protect certain kinds of property. Public monuments and the other listed types of objects should be spared because they do not aid the enemy’s strength and as a consequence one gains nothing from destroying them. Crucially, he also gives positive reasons to leave them untouched: they bring honour to humankind, merriment of heart (»gaieté du Coeur«, a phrase left out of the English-language edition) and their demolition would turn the destroyer into an enemy of the whole of humanity. Here, Vattel makes a truly universal claim: that public monuments, temples, works of art, indeed what we now call »cultural property« are of benefit to all human beings regardless of their nationality. For their universal importance, they should be protected.

This is not to say that the Swiss jurist deems destruction of objects of this category unlawful (§§168 and 173). According to Vattel, a sovereign has the right to ravage towns, monuments, works of art etc., should this amount to a military necessity or simply occur as an accident. The essence is that violence towards such property should be commensurate with the aims of war and not be excessive. Vattel’s call for the protection of »cultural property« is an appeal to the warring sovereign’s conscience; it is not a call to turn it into law.

As such, Le Droit des Gens was both an ending and a new beginning. As a culmination of the project of the law of nations (ius gentium), it stands in a tradition reaching back to such thinkers as Grotius (1583–1645), Samuel von Pufendorf (1632–94), and Christian von Wolff (1676–1756). Each in their own way, these legal scholars advocated a natural law of nations, or, in other words, a body of law governing the relations between nations grounded in nature and, for this reason, applicable to all mankind. Increasingly, however, this ideal of a universal law uniting all states in order to ultimately guarantee the rights of world citizens, was replaced by a positive law that protected the rights of states above all else (Sanahuja 2017). Vattel’s work in particular is seen as pivotal in the development of the new discipline of international law in the nineteenth century, the system that regulates interrelationships between sovereign states. With this in mind, the very title of his book, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, points to its ambivalent character. Some commentators go so far as to describe Vattel’s magnum opus as a »handbook of diplomatic casuistry«, meant to contribute to »an art of judgment of a ›situational ethics‹« for the use of diplomats who served their own state while contributing to the maintainance of the international order (Hunter 2014, pp. 584–85). As argued here, this tension between a natural, cosmopolitan law of nations and a positive, state-focused international law, which characterises the law of nations tradition of the seventeenth and eighteenth centuries, is also apparent in those passages in Le Droit des Gens dealing with special kinds of property.

Furthermore, several recent interpreters have pointed to the relation of this tradition of thought with empire and colonialism. In Grotius’ DJBAP a natural law justification for the occupation of wasteland was introduced, which directly served the interests of the imperial powers of the West (Sanahuja 2017, 128–9; see also Van Ittersum 2006). Similarly, as Jennifer Pitts argues in relation to Vattel’s Le Droit des Gens: »Vattel assumed a legal universality that was nonetheless largely situated in the specificities of European norms and practice.« (Pitts 2018, 90) Through his use of examples, Vattel »others« Muslims and Asians, not for their different religions but for their allegedly excessive use of violence. Conversely, the violence used by Europeans in their imperial and commercial exploits overseas is largely ignored. While his theory has a world-wide scope, the interests of European states seem to have priority. In this way, Le droit des gens made itself available to those looking for ideological backing of European colonialism.

In conclusion, Vattel’s importance lies in his definition of a special kind of property, what we now call »cultural property«, that needs to be protected in wartime to the benefit of humanity. While he phrases these novel thoughts in universal terms, they are nevertheless firmly grounded in the idea of the nation-state, and as such typical of the paradoxical nature of Le Droit des Gens as a whole. The public buildings, monuments, temples, paintings and sculptures that, according to Vattel, should be exempt from destruction in war are, in the first place, those belonging to European nation-states; there is less evidence that he was particularly concerned about destruction of objects that, in his view, would not clearly have belonged to a nation-state at all. Furthermore, Vattel’s call for the safeguarding of »cultural property« was foremost ethical in nature. Only in the nineteenth century would legal practice follow suit.

With thanks to Steve Murdoch.

Elsje van Kessel is Senior Lecturer in Art History at the University of St Andrews.

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