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37 Brit. Y. B. Int'l L. 506 (1961)
Doctrinal Aspects of the Universality of the Law of Nations

handle is hein.journals/byrint37 and id is 512 raw text is: DOCTRINAL ASPECTS OF THE UNIVERSALITY OF THE LAW OF NATIONS* By PROFESSOR C. H. ALEXANDROWICZ I THE process of European consolidation which has been gathering momentum since the end of the Second World War and now tends to assume various organizational forms can be traced back to the second half of the eighteenth century when some of the classic writers on the law of nations first conceived or pronounced the existence of a legally 'organized' European community of States (Rechtsgemeinschaft). Then, as well as now, this process was or is confined to the west European and partly central European region, leaving beyond its scope the countries of eastern Europe and the Balkans, though the boundary line between States which participated in it and those which were outside such participation was far from precise or stable. The gradual disintegration of the Habsburg Empire and the expansion to the west of the Russian Empire (irrespective of its form of government) left the boundary line for a long time in a state of uncertainty. Whatever the fluctuating division of areas on both sides, the early positivist writers of the eighteenth century pointed to the existence of a European tradition and continuity of intercourse which in their view justified the conception of a positive European law of nations based on treaties and custom. This regional conception was contrasted with that of the universal and natural conception of the law of nations which found itself in juxtaposition with new trends, and the ensuing conflict between them revealed a num- ber of problems the significance of which is not yet sufficiently appreciated. The ques- tion was whether the positivist European reality was reconcilable with the idea of universalism of the law of nations which drew its legal source from the declining con- cept of natural law but had a reality of its own. To this question various answers were offered and it is characteristic that some of the leading classical writers showed com- paratively less understanding for its solution in the long run than some of the lesser-known writers. It may be that the voice of the more 'fashionable' lawyers and authors who were at the same time counsellors or advisers to some of the European sovereigns at that period made itself more readily heard than that of the writers who, being more detached, showed perhaps more foresight as to the consequences of the prevailing ideological conflict. An attempt will be made to recall their views and to compare them with those expressed in the well-known treatises of the late eighteenth- and early nineteenth-century positivists. II The earliest systematic survey of writers and treatises on the law of nations was made by D. H. L. von Ompteda whose Literatur des gesammten sowohl natiirlichen als positiven Vblkerrechts appeared in Regensburg in 1785. One of Ompteda's personal titles on the front page of his work was that of 'K6niglicher Gross-Britanischer Comitial-Gesandte bey der Reichsversammlung zu Regensburg'. Whatever the precise meaning of this honorary function it pointed (similarly as in Justi's or in Martens's case) to Ompteda's conncxions with the sovereign of Great Britain and Hanover. Most of the eighteenth- century writers discussed by Ompteda were aware of the problem of the continuity of the universal family of nations in the peculiar circumstances created by positivist trends, * © Professor C. H. Alexandrowicz, 196z.

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