This chapter explores the link between international law’s long-standing doctrinal commitment to commerce and its inability to act decisively on behalf of the environment. One of the fundamental rights the early authors of jus gentium discovered was the right to engage in commerce. Vitoria, Gentili, and Grotius each drew on a providentialist theory of commerce. The doctrine held that Providence distributed scarcity and plenty across the Earth so that people could not be self-sufficient but would need to go in search of one another in order to acquire what they lacked. Commerce imagined in its pure form of reciprocal, mutually beneficial exchange would be the means to bring separated mankind to friendship. The embrace of such doctrine by early exponents of the law of nations, carried forward by Vattel, set the stage for international law’s longstanding commitment to international commerce, viewed as a virtuous activity that tends to the common good. An additional legacy was the view of nature as commodity. The providentialist doctrine of commerce remains embedded in international law and hobbles its ability to protect the natural environment.

From the 16th century onwards, the German academy offered a home for the most intensive reflection about modern statehood. German professors used the vocabulary of ius naturae et gentium (law of nature and of nations) to adapt the insights they had applied to the constitution of the Roman–German Empire to the world of European diplomacy in general. Statehood, it was suggested, was an instrument for the community to govern its affairs in a rational way. The notion of the Christian paterfamilias was given a secular meaning in the theory of the ruler as the manager of the state-machine that was to be operated under the instructions produced by a rational science of natural law. The fact that the practice of 18th-century diplomacy was hard to confine within the strictures of natural law theory, gave legal doctrine an often sceptical tone that pushed it ever closer to raison d’état.

This chapter examines the early emergence of civilian protection norms in medieval Europe and traces their development in the religious and secular strands of just war theory. It argues that the Peace of God played social movement in medieval Europe played a key role in the emergence of the principle of civilian immunity. Second, it shows that the theory set forth in Chapter 2 provides a useful account of how the principle of civilian immunity arose in medieval Europe and why it persisted from the medieval period through the Enlightenment. Throughout, it examines the arguments of key just war theorists and international lawyers, including Augustine, Aquinas, Vitoria, Suarez, Grotius, and Vattel.

The 1648 Peace of Westphalia typifies the “modern” starting point of state sovereignty and humanitarian intervention within conventional historical treatments of International Relations (IR) theory. The treaties ending the Thirty Years’ War signaled the dawn of an international society after medieval Latin Christendom with new diplomatic arrangements that assigned legitimate autonomy to specific European states independent of Roman imperial and papal authorities. The ideological archetypes of Westphalia for IR theory during the twentieth century were contemporaries, Thomas Hobbes (1588–1679) the realist and Hugo Grotius (1583–1645) the rationalist. Each of them powerfully envisioned a modern form of international relations: Hobbes accented sovereign political independence and international anarchy between states whereas Grotius affirmed a worldwide association of states absent a global authority yet still regulated by norms of universal law to justify war and intervention.

This chapter explores how humanitarian values influenced the broadening of the personal scope of asylum and compassionate grounds relate to protection grounds, such as refugee status and subsidiary protection. In the last couple of decades, a number of states have introduced the possibility of granting residence permits to non-nationals with a reference to humanitarian or compassionate reasons. These categories are generally not considered to have received ‘asylum’, but receive leave to remain or temporary residence permits. It is frequently claimed that humanitarian status is significantly different than refugee status and even so-called subsidiary protection and that its legal and conceptual basis is different. The phenomenon of admitting, or refraining from returning, persons crossing an international border because it would be contrary to humanitarian values is, however, not new and what are currently considered as compassionate, or humanitarian, grounds for admission or non-expulsion have throughout times been considered grounds for asylum or protection.

International law makes a claim to universality; it is supposed to be the law that applies to the relations among all peoples. This chapter argues that international law, instead, serves as a mechanism of closure; it provides a restrictive articulation of the rules that define which actors have a capacity for international rights. The chapter offers a reading of two of the most influential figures in early international law, Grotius and Vattel, in terms of the closure thesis. It traces the principle mechanism of closure to a notion of property rights that invests the territorial state with the capacity for rights based on possession and ownership. It then details how the combination of property and natural rights as the basis for sovereignty would justify the equal treatment of some and the domination and exploitation of others. Rules of closure served to accelerate the formation of property monopolies, first in the form of colonial extraction and later in the form of market neoliberalization. The chapter considers the contemporary implications of the international-law-as-closure argument. At stake is whether universalism is understood as a project of homogenizing differences and protecting privileges, or of making space for pluralism and diversity.