Returning to Vattel:1 A “Gentlemen’s Agreement”
for the Twenty-first Century
Stacey Marlise Gahagan†
I. Introduction .......... 847
II. Evolution of the Intellectual and Moral Conception of
CIL .......... 853
A. Conceptions of Customary International Law: Pre-
Vattel .......... 853
B. Vattel’s Necessary Law of Nations .......... 855
C. Vattel’s Positive Law of Nations .......... 858
D. Bradley and Gulati on Vattel .......... 860
III. History’s Effect on the Legacy of Vattel .......... 864
A. Customary Law and Colonialism.......... 867
B. The Law of Civilized Nations .......... 870
C. Bringing The Law of Civilized Nations to the
Uncivilized .......... 871
IV. Supreme Court Decisions .......... 873
A. The Schooner Exchange .......... 874
B. The Antelope .......... 875
C. Johnson v. M’Intosh .......... 878
A. The Schooner Exchange156
In 1812, the Supreme Court decided The Schooner Exchange
v. McFaddon & Others.157 The Court dismissed the libel suit,
brought by individuals against another sovereign nation, France,
and upheld sovereign immunity as understood and applied through
the Law of Nations.158 As was typical of the beginning of the
eighteenth century, the dicta in this decision vacillated between
naturalist and positivist sentiments.159 Within the same sentence,
Chief Justice Marshall espoused both the “equal rights and equal
independence” of each sovereign throughout the world and the
“absolute and complete jurisdiction within their respective
territories which sovereignty confers.”160 Marshall enumerated
rights conferred on sovereigns, arguably based in Vattel’s
voluntary law, and explained that a breach of these rights would
violate “privileges which are essential to the dignity of his
sovereign.”161
Whereas Bradley and Gulati emphasized the positivist aspect
of the Court’s dicta,162 Marshall’s voluntary reasoning undergirded
the Court’s analysis.163 For example, Marshall contended that
155 See discussion infra Parts IV.A - D. For example Johnson v. M’Intosh, 21 U.S.
(8 Wheat.) 543 (1823), exemplifies the disparate application of the Law of Nations by
the United States to disputes between civilized sovereigns and disputes between a
civilized nation and an uncivilized nation.
156 11 U.S.(7 Cranch) 116 (1812).
157 Id.
158 Id. at 147.
159 See Later-in-Time Rule, supra note 116, at 23.
160 The Schooner Exchange, 11 U.S.(7 Cranch) at 136.
161 Id. at 139. But see Dodge, supra note 7, at 177-79 (discussing other decisions in
which the Court questioned voluntary withdrawal from the Law of Nations).
162 See Withdrawing, supra note 3, at 220-23.
163 The Schooner Exchange, 11 U.S.(7 Cranch) 116, 137-38 (1812)(“Why has the
whole civilized world concurred in this construction?”); see also Later-in-Time Rule,
supra note 116, at 13. There are two tenets of international law that appear at odds in
this case–the absolute jurisdiction of a sovereign within his own borders and sovereign
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