History of International Law

Sheets 2015-2016Bonn

Main problems of the History of International law• Even today international law lacks the possibility of being enforced.

UN Charter submits use of violence to the Security Council (51 UN Charter)• History of International law is mostly history of European

international law• International law is often considered as a European invention

(Eurocentrism)• How to define international law?• Law between sovereign territorial states?• Law between “actors” in international relations?

First seminar: General problems(2)

• First option “minimalists”: History of International law starts when territorial sovereign states are internationally recognized in a treaty: Treaty of Westphalia (1648)• Second option “maximalists”: History of International law starts

where documents concerning international relations can be found (3000 BC) – This is the view of the German scholars Wolfgang Preiser and Karl Heinz Ziegler

First seminar: general problems (3)

• In this course we follow the line of the maximalists• However, we start with international law between the Greek city

states since ± 1000 BC (small territories around a city)

Seminar I: Greek international law (1)

• Due to economic situation autarchy is not possible, hence trade relations between the city states are indispensible• Several forms of treaties: • Peace treaties • Alliances (summacheia)• Treaties aiming at mutual legal aid (Rechtsgewährungsverträge)

• A foreigner is admitted in local courts to defend his commercial interest• Question: Which law must be applied?• Link between history of international public law and history of private international law

Seminar I Greek international law (2)

• Sources:- inscriptions (mainly on marble, see Inscriptiones Graecae, W. Dittenberger, Sylloge Inscriptionum Graecarum, Dareste-Haussouillier-Reinach, Recueil des inscriptions juridiques grecques)

- papyri- Greek and Roman historiography (Herodotus, Polybius, etc.)

- Greek rhetorics (Demosthenes, Isocrates, Aischines)

- Greek philosphers (Plato, Aristotle)

Seminar I Greek international law (3)

• Greek city states sometimes considered each other as equal, but colonial relations also exist (colonization of Sicily!)• However, Greek city states had to establish some kind of relations

with the Persian Empire• Development of diplomatic relations between Greek city states,

incidentally outside diplomatic missions as well• Non Greeks were never considered as equal

Seminar I Greek International Law (4)

• Origin of just war theory is Greek • Literature: S. Clavadetscher-Thürlimann, Polemos dikaios und iustum bellum, Zürich 1985

• Philosophy of just war embedded in theories of natural law• Two competing concepts:

• Equality: a just cause must exist for waging war• Inequality see text 1

Seminar 1 Greek International Law (5)

• Text 1 is an important illustration, also for philosophy of war:• Main question in earlier Greek philosophy: What does nature teach

us? Nomos-Physis debate• Equality ?• Inequality?

• Hence there are two lines in the history of ideas• Natural law philosophy based on equality (Plato, Aristotle, Stoicism;

Christianity) see also text 2, one of the most famous texts on natural law• Natural law philosophy based on inequality (Gorgias, Kallikles, Karneades (?),

Hobbes, Nietzsche)

Seminar 2: Roman international law (1)

• 753 BC Rome founded as a modest city state • Link with the wars between Carthago and Rome • First Punic War 249-241 BC

Rome conquers most parts of Sicily

• Praetor peregrinus created as a magistrate to hear cases between Roman citizens and privileged foreigners (peregrini)• Roman law under influence of common commercial practice in the

Mediterranean (later called ius gentium)

Roman international law (2)

• Hypothesis: • this development is completely comparable with the developments of the

treaties of mutual legal assistance in Greece, although there is no direct evidence of such treaties in the western part of the Mediterranean Sea. • Cicero (106-43 BC) refers to these treaties (civitates foederatae in the Verrine

Orations)

Roman International law

• The Roman Empire was till 212 AD based on treaties of submission and alliances Literature: D. Nörr, Aspekte des römischen Völkerrechts, München 1989

• Roman private law ius civile took over many elements of the ius gentium (consensual contracts, e.g. sale)• Ius gentium has a wide variety of meanings, it can mean natural law,

(international) commercial law and international law as well (texts 3,4)

Roman international law

• 212 AD Constitutio Antoniniana: nearly all free inhabitants of the Roman Empire acquire Roman citizenship → Roman Empire becomes a “territorial” state• 476: Western Roman Empire comes to an end; invasion of Langobards

and Visigoths• Feudal system is developing in Western Europe, it excludes formally

“international law”; it is a curious mix of private law and public law • Territoriality substituted by personal ties of feudal dependency, cfr.

Lex Romana Visigothorum 506; Lex Visigothorum 7th century

• Feudal system is by no means restricted to European history• It occurred in Chinese, Japanese, Javanese (Indonesian), African and

American history as well ! • It is a hierarchical system of personal dependency around a ruler

with (the pretention of) universal power

3rd seminar

• Political theories excluding international law• Caesaro-papism: The emperor is head of the church (cfr. England;

Scandinavia), cfr Codex Justinianus (534) Book I• Political Augustinism derived from St Augustine (354-430)”: texts 6-8; 12• Doctrine of the Two Swords cfr. text 11 and 13, a text with several “layers”

Donatio Constantini

• One of the most successful falsifications in history • The Emperor Constantine should have entrusted the pope with

worldly power before leaving to Constantinople• Impossible given the religious orientation of Constantine (Christianity

only prevails in 380)• False documents made in the 9th century• Refuted only in the 15th century by Lorenzo Valla

• Political Augustinism goes back to St Augustine’s De Civitate Dei in which he distinguishes between civitas terrena and civitas Dei (Church)• Augustine makes use of the distinction between ideal forms of

government and practical forms of government

Aristotelian theory of political organization• Ideal forms

• Monarchy

• Aristocracy

• Politeia

• Practical forms

• Tyranny

• Oligarchy

• Democracy

• NB:• The distinction between ideal forms and practical forms of political

organization still reflects in Aristotle the Platonic theory of Ideas

Seminar IV

• Struggle between Pope and Emperor • Emperor pretends to be the successor of the Roman Emperor in the

West • Doctrine of the translatio imperii • 476 End of the Western Roman Empire• 800 Charlemagne• 962 Otto I

Investiture Controversy

• Who has the right to nominate bishops?• A question of extreme importance in the feudal system (cfr. dioceses

along river Rhine and side rivers : Utrecht, Cologne, Mainz, Trier)• Emperor?? • Pope??Winner (eventually) the Pope (XIIIth Century)RESULT: the emperor suffers a considerable loss of influence in strategic

regions: he cannot regularly impose a ruler of his own choice!

Holy Roman Empire, Bishops in Utrecht, Cologne, Mainz, Trier

Text 15 Jean de Blanot

• Alliance between French King and Pope against a powerful rival of the former: the Count of Toulouse (Visigothic capital)• Double use of the doctrine of translatio imperii (text 15): • the medieval emperor is the successor of the Roman emperor in the West• The French king is in his realm emperor because he does not recognize a

superior

sovereignty

• This is the beginning of the doctrine of sovereignty later developed in Jean Bodin, Les six livres de la république (1576)

Contemporary texts announcing territorial sovereingty in the 13th century:

• Azo († 1230), Glossator in Bologna, see text 14Idem Item quilibet (rex) hodie videtur eandem potestatem habere in terra sua quam imperator.In the same sense is every king nowadays considered to hold the same power in his territory that the emperor has.

• Marino de Caramanico develops the same argumentation somewhat later in Sicilian political context, see next sheet and text 16.

Short survey of Sicilian political history I (see text 16)• From 8th century BC: Sicily colonised in the East by Greek city States, in

the West by Carthago• 241 BC: Sicily under Roman domination• After 400: Sicily conquered by Vandals and Ostrogoths • 535 Sicily conquered by the armies of Justinian (Eastern Roman =

Byzantine Empire)• From 827 Sicliy under the rule of the Saracenes (islamic)• 11th century”: Norman invasions, establishment of Normannic rule in

Sicily

Sicilian political history II

• In the 12th century the emperors of the West = successors of Charlemagne and Otto I (dynasty Hohenstaufen) became king of Sicily by the way of succession (Henry VI= son of Frederic Barbarossa, Frederic II)• 1266 the Pope gave the crown of Sicily to Charles of Anjou (instance

in the ongoing controversy between Emperor and Pope)• 1282 Sicilian Vespers: Sicily under Aragon later: Spanish rule → 19th

century (Risorgimento)