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Vattel’s treatise presented the first mutually-reinforcing configuration of sovereign equality, nonintervention, and a people’s right to choose its preferred system of authority; the base components animating today’s ‘effective control doctrine.’ Thus, to locate the contemporary relationship between popular will and international law within the classical law of nations we must look to Vattel. However, before under-taking the textual analysis in support of this proposition, it is important to highlight key features of Vattel’s place within the development of international legal and po-litical thought. Such an exercise allows us to appreciate the force of Vattel’s trans-formative impact.

A first step in this analysis is acknowledging Vattel’s pivotal role in shaping our modern conceptual divide between international and domestic spheres of authority.

Such a delineation is highly consequential to our contemporary understanding of what constitutes a binding legal source of obligation. For Vattel, the world was organized according to an ontology of self-contained sovereign states, each being bound by a ‘necessary law’ to develop in accordance with its own unique character.²

2 De Montorency 1909, 29-30; Beaulac 2005, 268-273

Outside this rarefied domain of ‘necessary law’, relations between these self-inter-ested sovereign entities only amounted to a ‘voluntary law’ that could be further parsed into consensual interactions, convention-based agreements, and adherence to customary practices.³ Here Vattel weaved together previous natural law concepts resulting in a theory of decentralized, law-defined relations amongst self-interested, yet socialization-prone, sovereign entities.⁴ While not the first publicist to identify states as inherently self-interested, conceive of inter-sovereign relations as occur-ring in some ‘society,’ or define voluntary agreement as the basis for international order, ‘…Vattel was the first author systematically to combine all three perspectives within the ambit of a single book.’⁵

In light of this particular formulation of the law of nations, Vattel has been depicted as a forerunner to international legal positivism whereby the morally-neutral pro-cess of ascertaining state consent replaced the articulation of transcendent morality as the grounding of lawful authority.⁶ This depiction appears consistent with the reality that unlike earlier naturalists, Vattel was more interested in providing prac-tical advice to statesmen and diplomats than systemaprac-tically developing a universal theory as a justification in and of itself.⁷ This notion is further supported by Vattel’s method of illustrating the principles of the law of nations through examples from modern European statecraft rather than primarily drawing on examples from my-thology, antiquity, or religious scripture as was the case with earlier publicists.⁸ On this basis, it is easy to conflate his efforts with the documenting of state practice that international legal positivists use to proclaim what the law ‘actually is.’

3 Onuf 1994, 300.

4 This general premise would be reflected centuries later in Hedley Bull’s proclamation of the inter-national states-system as an ‘Anarchical Society,’ Bull 2012.

5 Holland 2011, 445.

6 See e.g. Chesterman 2002, 18-19.

7 Onuf 1994, 296.

8 Pitts 2018, 72.

However, if we take historical context seriously, it is exceedingly difficult to situate Vattel as a link between the classical law of nature and nations and international legal positivism. While he portrayed a sovereign equality-based anarchical order (that ultimately formed the baseline presumption for the modern fields of interna-tional law and internainterna-tional relations), imperial relations of hierarchy rather than equality defined Vattel’s actual world.⁹ Thus, it is a serious distortion to claim that Vattel simply documented sovereign practice in a manner divorced from, or even moving away from, the normative demands of the natural law. Rather, Vattel’s de-piction of sovereign equality in a world beset by juridical inequalities was very much within the natural law tradition and its belief that, like individuals, collective political entities enjoyed inherent rights independent of fact.¹⁰ As Part 2.6. shows, Vattel was very much aware of the inequalities and vulnerabilities that defined his historical backdrop. As a result, his fear for the survival of small states (namely his own), resulted in a defensive manoeuvre via the particular juridical narrative that asserted sovereign equality, non-intervention, and an ideologically plural concep-tion of popular will as mutually-reinforcing first principles of a legitimate interna-tional legal order.

Connected to his position within the natural law-legal positivism divide, another important issue is how to situate Vattel within the evolution of Western political thought. When placing Vattel, we find that his proclamations were rooted in both medieval scholasticism and liberal social contract theory.¹¹ On this accord, he em-phasized the teleological process of entities perfecting themselves, while simulta-neously assuming that individual and collective (i.e. state) persons are complete,

9 Pitts 2017, 285-289.

10 Here, by claiming the inherent equality of all nations as autonomous sovereign communities, Vat-tel posited counterfactual reading of the existing order rooted in an analogy to the natural law first principle that all individuals possessed an inherent right of self-defence, Stirk 2011, 648.

11 Fenwick 1913, 397.

equal units capable of providing valid consent in relation to one another.¹² The co-existence of these two theoretical modalities in Vattel thus complicates the common view that the hierarchical premise of scholastic teleology was progressively super-seded by anti-teleological liberal equality.¹³ Accounting for the coexistence of these two presumptions within a common theoretical framing produces some puzzling discontinuities.

On the one hand, Vattel’s view of states as persons invokes medieval organic anal-ogies of collective human associations (i.e. ‘bodies politic’) that have been repeat-edly ignored, disavowed, or neglected by modernist theorists.¹⁴ On the other hand, Vattel’s modernist liberal ethos vests ultimate sovereign ownership in a nation’s underlying political community and this could never be fully alienated to a ruler.¹⁵ Consequently, this denial of absolute ownership beyond the nation’s popular will rejected the view of dynastic authority that legitimized the foundational medieval organic analogy of the ‘King’s Two Bodies’ whereby the territory of a realm was owned by a ruler as an extension of his physical person.¹⁶ Thus, while Vattel can be interpreted as either a medieval critic of modernity or a modern critic of medie-valism, to view him as a conclusive proponent of one view over the other is to miss the point of his theory’s distinctly hybrid character.¹⁷ Rather this ambiguity was a

12 Thus, Vattel’s hybrid framing did not account for entities whose proclaimed lower position im-paired their ability to provide valid sovereign consent thus rendering them ‘semi-sovereigns.’ How-ever, this logic of compromised consent found its way into later international legal practice where relations, particularly between Europeans and Non-Europeans, began on the presumption of legal equality gave way to impositions of hierarchy, see e.g. Benton 2008; Keene 2007, 323-329.

13 On teleology’s suppression by liberal equality within the modern structure of international legal argument, see Desuatels-Stein 2016b, 690-691.

14 Whelan 1989, 77.

15 Ibid. 71-75.

16 Ibid. 70; see also Kantorowicz 2016.

17 In this way, Vattel’s hybridity highlights how the intellectual transition from medieval to modern cannot be characterised by any straightforward narrative of linear progress. Rather, ‘[t]he more one delves into the conceptual vocabulary of the early modern period for thinking about the nature of

source of durability within his theory in that it could pre-empt the shortcomings of medievalism through an invocation of modernity, and vice-versa, thus precluding any definitive resolution.

In light of this chimera of medievalism and modernity, the coexistence of these seemingly incompatible premises proves indispensable when understanding Vat-tel’s delineation of domestic versus international spheres of authority. On this basis, Vattel’s pluralist notion that individual states were bounded, self-perfecting politi-cal communities through a medieval organic-analogy lead him to reject the premise that teleological consolidation at a higher level than the sovereign state was a nec-essary demand of the natural law.¹⁸ This being the case, since integration at a level higher than the nation-state could disrupt a given community’s unique character, such an integration (even if minor) would have to be exclusively voluntary. While this view of the ‘international’ may have posited a domain of liberal equality in a manner that paradoxically preserved domestic political authority as a vestige of scholastic teleology,¹⁹ for Vattel, this did not render liberal modernist considera-tions irrelevant to the characterization of domestic political expression.

Rather, liberalism filled an important gap in Vattel’s theory given that his pluralism rendered it impossible to substantively judge the teleological perfection process of a foreign political community.²⁰ Thus, Vattel’s best option was to presume that

political community, the more it resembles the ‘tangle’ of different and overlapping forms of polit-ical community that so many commentators observe in the Middle Ages.’ Keene 2005, 106. For a wide-ranging account of the multi-layered shaping of the medieval/modern divide in the develop-ment of European political thought, see Nederman 2013.

18 See Part 2.4.1.

19 On the presumption of perfected teleological statehood as an overlooked feature within numerous

‘anti-teleological’ political theories, see Levy 2017.

20 In this way Vattel’s premise of ideological premise of ideological pluralism made a major inter-vention in the disputes over the nature of legitimacy in legal and political authority that existed in the early modern era. As Rose Parfitt has recently shown, formative attempts to define the relation-ship between the individual and the collective sovereign state entity led to fundamental different formations especially in relation to the republicanism, that largely, and the Hobbesian natural law

‘facts on the ground’ are expressions of local popular will expressed through con-sent to an existing authority and determined by an obedient population.²¹ This is precisely what the present ‘effective control doctrine’ presumes. Yet, this raises the question of what existed before Vattel and how did his particular approach represent both a novel rupture and a reconciliation of earlier views of popular will within the classical law of nations.²²