International law in Europe, 700–1200

Jenny Benham, Stephen Mossman, C. E. Beneš, T. J. H. McCarthy, Jochen Schenk

• Publisher: Manchester University Press
• Year: 2022
• ISBN:
  9781526142306
• Topic: History
• Subtopic: European Medieval History
• Index: History

Was there international law in the Middle Ages? Using treaties as its main source, this book examines the extent to which such a system of rules was known and followed in the period 700 to 1200. It considers how consistently international legal rules were obeyed, whether there was a reliance on justification of action and whether the system had the capacity to resolve disputed questions of fact and law. The book further sheds light on issues such as compliance, enforcement, deterrence, authority and jurisdiction, challenging traditional ideas over their role and function in the history of international law. International law in Europe, 700–1200 will appeal to students and scholars of medieval Europe, international law and its history, as well as those with a more general interest in warfare, diplomacy and international relations.

1

The sources of international law: treaties

The starting point for any discussion of the sources of international law is usually Art. 38(1) of the Statute of the International Court of Justice, which describes the three types of material that should be considered international law. Treaties are the first listed, followed by international custom (or legal practice) and general principles of law (e.g., canon or Roman law through its use of natural law).¹ While the statement seems easy enough to interpret – if we’re looking for international law, we need first to look to treaties – establishing exactly what a treaty was in the period before 1200 is more difficult. David J. Bederman, in his study of international law in the ancient world, saw treaties as ‘the chief means of regulating peaceful relations between States’.² Yet, his deliberate use of the word ‘state’ and the choice to explore the topic on the selection of three specific time periods when there was ‘an undisputed, and authentic, system of States in place’, would be untenable for the period 700 to 1200.³ Indeed, J. L. Holzgrefe commented that ‘the political structure of Medieval Europe, was so different from that of a system of sovereign territorial states that it is difficult to see in it what came to be called “international” relations’. Particularly problematic for Holzgrefe, and a host of other scholars, was the division of power among a multitude of different actors.⁴ The problem has been clearly explained by Randall Lesaffer:

During the Middle Ages, sovereignty – superiorem non recognoscens or the non-recognition of a superior – was a relative concept and extended to a variety of rulers and groups including kings, feudal lords, and vassals, clerical institutions, towns, and even rural communities. The right to use force and make peace was not restricted to supreme princes such as the pope, emperor, or kings. Consequently, there was no strict distinction between public and private peacemaking.⁵

While these assertions are not necessarily untrue, it should be noted that despite the emergence of the nation state, physical international institutions, and a body of international law, they contain a kernel of truth also for more recent historical periods and even the contemporary world. Indeed, the debate over so-called new wars since 1989 has highlighted that how to draw a distinction between law and politics, between war and peace, between the domestic and the international, between the individual and the ‘state’, is always likely to be subject to great discussion.⁶

Recognising the difficulty and that the locus of political and legal power in the Middle Ages was multi-layered does not mean that it is impossible to point to international matters or to treaties as international agreements.⁷ As a start, as highlighted in 2013, when most dictionaries and scholars use definitions of ‘treaty’ that involve the words ‘state’ or ‘international’, both of which are tricky to use in a period before nation states, it is important to qualify the usage by noting that a ‘state’ between 700 and 1200 usually equates to a ruler or a ruling council (whose authority and jurisdiction, was different to that of, say, local lords or bishops), and ‘international’ should be taken to mean ‘inter-ruler’.⁸ Some treaties are even explicit about this by including a so-called amnesty clause, which cancels all expectations and obligations for redress at the expense of the rights of individuals, showing that rulers, and only rulers, had the authority (over all of their subjects) and jurisdiction (over all their territory) to conclude treaties with other foreign entities.⁹ Documents from those entities governed by ruling councils corroborate this, showing a clear concept of the authority that should be invested in those dealing with matters of war and peace. For instance, in the 1140s, a certain Filippo di Lamberto was excluded from office in Genoa, after the failure of a mission of his own accord, showing that the ‘commune’ as a whole – represented by the consuls – and alone, negotiated and concluded treaties with foreign entities.¹⁰ This is not to say that only rulers, or ruling councils, concluded treaties, but rather to point out that such treaties are rarer and usually strictly limited in terms of both authority and jurisdiction. For instance, the Treaty of Artlenburg, by which Duke Henry the Lion of Saxony (a subject of the Emperor Frederick I) concluded peace with the Gotlanders (the men of a semi-independent island nominally under the Swedish king) in the 1160s, is clear that not only was this agreement a renewal of laws and privileges previously granted by the Emperor Lothar III but its terms applied only to areas under Henry’s authority and jurisdiction.¹¹ A different example is the Treaty of Pavia, concluded in 840 under the supervision of the Emperor Lothar I, and hence often known as the ‘Pactum Lotharii’. Despite the involvement of Lothar, who in theory ruled over a vast empire, there can be no doubt that the terms of this treaty applied only to the Venetians (an independent lagoon community headed by a doge and their neighbouring communities on the Italian mainland (‘vicinos eorum’), the inhabitants of which are named in the prologue of the treaty.¹² It was in essence a treaty regulating the relations between two border communities, not two rulers and their kingdoms. Similarly, the Ordinance of Dunsæte sets out the rules for interactions between an English and a Welsh community separated by an unnamed river, most likely the Wye. The prologue states that the treaty had been established by the English witan (the royal council) and the counsellors of the Welsh people but without referring to any specific ruler.¹³

What is evident from these examples is that while local communities or lords might conclude treaties with foreign entities, these were limited in scope and they all recognise this fact. Such treaties tend to imply a ruler’s consent or involvement in some way, and it is clear from other treaties that rulers had the right to extend, limit or exclude such treaties from any treaty he, himself, concluded.¹⁴ In many ways, this is simply a reflection of the fact that medieval political entities were polycentric and it also hints at the origins of the terminology of international law (ius gentium), where, as argued by Jörg Fisch, ‘the emphasis is on a (real or invented) group or community and not on an organization; it is not law between states but instead between groups of human beings’.¹⁵ For many reasons, but if for no others at least for reasons of economics, logistics, and communication, on the periphery of an entity, there needed to be individuals who could take up arms as well as lay them down, deal with foreign commerce, and resolve cross-border disputes and interactions relating to property, inheritance, and redress, without a ruler’s direct involvement.¹⁶ In addition, the Church acted as a supranational institution with an authority and jurisdiction that, at different times, could both complement and contrast that of secular powers.¹⁷ This polycentrism and legal pluralism is highlighted clearly in how treaties were concluded and implemented. Treaties frequently involved the swearing of oaths not only by the contracting parties, usually rulers, but also their supporters – ecclesiastical and lay – to achieve maximum effect and engage different sections of society in keeping the terms. This created a complicated web of obligations that was not only individual but also communal.¹⁸ Scholars hence need to take a pragmatic approach to finding treaties and the ‘international’ in the period 700 to 1200. Treaties, as international agreements, were in the vast majority of cases concluded between rulers (or ruling councils), or between two different border communities or lords.¹⁹ Of course this is not unambiguous, but it is important that we continue to grapple with the complex relation of medieval treaties to an outdated state-centred understanding of international law, rather than denying that such agreements ever filled functions that contributed to how rulers, communities, and political entities conducted diplomacy and regulated their interactions with each other.²⁰ Indeed, as will be shown in this and subsequent chapters, ambiguities are often key to understanding international law in the medieval period rather than the impediments.

A treaty was a formal recognition that both parties had the required authority and jurisdiction.²¹ Indeed, treaties of friendship or non-aggression pacts were common throughout the whole Middle Ages and one of their main purposes was simply to recognise that each party had the capacity and authority to enter into such agreements. That external recognition was an important tool in establishing legitimacy and authority, as well as a jurisdiction that might be deemed territorial, can be seen from the Treaty of Melfi (1059). This treaty, detailing the oath of Robert Guiscard to Pope Nicholas II, recognised Robert – who was from Normandy but had no claims to rule it – as ‘Duke of Apulia and Calabria’ in southern Italy.²² Other examples include the treaty by which Alfred and the viking leader Guthrum recognised each other as kings, and the Treaty of Bonn (921), which formally recognised the East and West Frankish kings and kingdoms, following the repeated divisions and disputes over the middle kingdom (often termed Lotharingia) at the end of the ninth and beginning of the tenth centuries.²³ However, that early medieval rulers, unlike modern states, primarily ruled over people not territory and that it was possible to be recognised as having international personality and legal authority without any territorial jurisdiction is clear from the treaty concluded between the English king, Æthelred II, and an army (‘here’) with which were three leaders, Olaf, Josteinn, and Guthmund.²⁴ More generally, the importance of recognition can be highlighted through the diplomatic efforts of those rulers and entities whose status was contested, or through the fact that the beginning of a ruler’s reign often resulted in a flurry of negotiations, peace conferences, and treaties.²⁵ The former can be seen clearly in the 1198 alliance between the French king, Philip II, and Philip of Swabia, whose candidacy to be king and emperor was contested with Otto of Brunswick, count of Poitou. The final clause of the treaty specifically noted that if, God willing, Philip was crowned emperor, they would renew the treaty between them. The French king’s recognition of Philip’s possible change in status was hence important enough to enshrine as one of the legal obligations in the treaty already before the event.²⁶ Other examples are the Treaty of Genoa (1164, 1168), in which the Genoese recognised and treated with Barisone II as king of Sardinia, a status that was reduced ...

Table of contents

• Cover
• Half Title
• Series Information
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgements
• List of abbreviations
• Maps of medieval Europe
• Introduction
• 1 The sources of international law: treaties
• 2 That which is practised on a daily basis: displacement of people
• 3 The rules consistently obeyed: redress, amnesty, and transitional justice
• 4 Justifying action: law, responsibility, and deterrence
• 5 Resolving disputes: arbitration, mediation, and third-party intervention
• Conclusion
• Appendix: List of treaties
• Bibliography
• Index