International-Law-in-the-Middle-Ages-in-Western-Europe.pptx

international law

1. International Law in the Middle Ages in Western Europe РС

2. History The origins of the modern international state system can be observed in the late Middle Ages in the 14th and 15th centuries, when also the first books of authority concerning problems of the law of nations were written, as in 1354 a treatise on the law of reprisals by Bartolus de Saxoferrato , the famous Italian teacher of Roman law, and in 1360 a treatise on war, reprisals and duels by Johannes de Lignano , an Italian teacher of canon law. The foundations for this kind of literature had been laid by the earlier scholars of Roman and of canon law teaching in the universities of Europe since the 12th century. Modern lawyers often forget that our legal science began in the medieval universities, where learned jurists received the same education either in Roman or in canon law, reading, speaking and writing in the same language, Latin. The same books (which were still written by hand since printing was not yet invented) were read in the scholarly world from Portugal to Poland, from Scandinavia to Sicily.

3. The Catholic Church's Role in International Law Moral Authority The Catholic Church exerted significant influence on international law through its moral authority, shaping norms and providing a framework for resolving disputes. This was particularly evident in the concept of 'just war'. Papal Decrees Papal decrees, such as the 'Decretals' of Gregory IX, provided legal guidance on issues like the treatment of prisoners and the conduct of war. These decrees were widely accepted and served as a foundation for international legal principles. The unity of Latin Europe was guaranteed in the Middle Ages by the Roman Church. The corresponding state community was often called Christianitas or even Respublica Christiana (an expression used still in the peace treaties of Westphalia in 1648, now including Roman Catholics and Protestants). Ancient Roman principles of international law, conserved through the centuries by the Latin Church, were alive in the “Christian Republic”, as the idea of a just war ( bellum iustum ), the inviolability of diplomatic envoys, the binding force of treaties ( pacta sunt servanda ).

4. The Rise of International Arbitration Dispute Resolution The need to resolve disputes between states and individuals led to the emergence of international arbitration, which sought to settle matters through neutral third parties. Canon Law Canon law, the law of the Catholic Church, played a role in international arbitration. Church courts often acted as mediators and arbiters in disputes involving religious matters or those with international implications.

5. Latin Christendom The medieval Latin Christendom included the later Baltic states as well as the kingdoms of Poland, Bohemia and Hungary.10 We should also remember the fact that the universities of Prague in Bohemia (founded in 1347-48), of Krakow in Poland (founded in 1364), of Vienna in Austria (founded in 1365) and of Pécs in Hungary (founded in 1367) were older than Heidelberg (founded in 1386),11 the oldest university in present Germany. One of the earliest proposals for a European peace organization was the famous project of the Bohemian king George Podiebrad (1462/64).12 The political role of learned jurists as diplomats is visible in Paulus Vladimiri from Krakow, who defended the Crown of Poland against the Teutonic Order before the Council of Constance. The Greek Orthodox world with the Byzantine Empire had been separated from the Latin West ever since the fatal schism of 1054 when the Roman Pope and the Patriarch of Constantinople banished and excommunicated each other. The mental rift was not even closed when in 1453 the Ottoman Turks conquered Constantinople. A considerable part of the Greek Orthodox clergy preferred the rule of a Muslim, the Turkish sultan, to the rule of a Roman Catholic prince.

6. Three components of the doctrine developed in the 16 th and 17 th centuries 1 st component: the scholastic moral theology as propagated by famous Spanish authors as the Dominican Francisco de Vitoria (†1546) and the Jesuit Francisco Suarei (†1617) 2 nd component: he modem political theory as created by the Italian Niccolo Machiavelli (†1527) and the French jurist Jean Bodin (†1596) 3 rd component: humanism as an intellectual movement which changed also the European legal science in the course of the 16th century The humanistic method of arguing with cases chosen from Greek and Roman history is still dominating in the main work of Hugo Grotius (†1645), the De iure belli ac pacis libri tres , first published in 1625. This systematic handbook of natural and international law ( ius nuturae el genriurn ) combined legal and moral rules as found in ancient Greek and Latin authors and in the Bible . European in origin and substance, the Grotian system was conceived by its author as a legal world order, independent from religion, and open to mankind. A well-known Japanese scholar of our time, Onuma , has characterized Grotius’s main work as “the greatest classic in the history of international law”

7. Respublica christiana It cannot surprise that Grotius did not speak of Europe in connection with his legal system. The geopolitical concept of Europe was still hidden behind the old formula Respublica Christiana which, as already mentioned before, was still alive in the peace treaties of Münster and Osnabrück in Westphalia concluded in 1648.19 The identification of Europe with the “Christian Republic” is clearly expressed in the peace plan which the Duke of Sully (a former minister of King Henry IV of France) had published in 1638.20 A new state system of Europe should be organized in a union, having a “General Council” ( conseil général ) as representative body of all the states of Europe ( les états de toute l’Europe ). This Council was to be assembled continuously as a senate, consisting of commissioners, ministers or plenipotentiaries delegated by all powers of the “Christian Republic” ( république chrétienne ). As a model for the “General Council of Europe” Sully had used the councils of the amphictyonies in ancient Greece. The Europe of Sully was the Roman Catholic and Protestant world. Russia was expressly excluded, being partly inhabited by idolaters, partly by “schismatic Greeks and Armenians”, regarded as an uncivilized country, as well belonging to Asia as to Europe, being on the same level as Turkey. The nonChristian princes, like the Ottoman sultan, should be totally expelled from Europe.

8. How they denied Russia as part of Europe at that time In 1648 the peace treaty of Osnabrück includes in Article XVII § 11 amongst the parties on the side of Sweden also the Russian czar under the title “ magnus dux Muscoviae ” (Great Prince of Muscovy) which shows that the imperial rank of the czar was not yet fully recognized in Western Europe ( magnus dux being also the Latin title for a Grand Duke). The leading power in northern Europe was still Sweden. And we should remember that under Swedish rule in 1632 the University of Dorpat (Tartu) in Estonia and in 1640 the University of Åbo (Turku) in Finland were founded, followed in 1666 by the University of Lund in Sweden22 (where since 1477 the University of Uppsala had existed).

9. Naturalists and positivists In the post-Grotian period the European science of international law was cultivated by authors who can be characterized roughly as either “naturalists” or “positivists”, the former trying “to derive a law of nations from the commands of natural law”, meanwhile the latter “emphasized treaties and custom”. To the naturalists belonged the German jurist Samuel Pufendorf (†1694), who since 1670 had also been teaching in Lund, and the German philosopher Christian Wolff (†1754), both writing in Latin, but also the Swiss classic Emer de Vattel (†1767), whose Law of Nations of 1758 was written in French ( Le droit des gens ), and as the complete title27 shows was based on the principles of natural law and destined for application to the state practice. The French scholar Emmanuelle Jouannet28 regards Vattel as the principal founder of modern international law.

10. Just War Theory and its Application Just Cause The concept of 'just war' dictated that war should be waged only for legitimate reasons, such as self-defense or to punish aggression. This principle aimed to limit the destructive potential of conflict. Last Resort War was seen as a last resort, to be pursued only after all other means of resolving disputes had been exhausted. This highlighted the importance of diplomacy and negotiation in medieval international relations. Proportionality The principle of proportionality required that the means used in war should be proportionate to the ends sought. This aimed to minimize civilian casualties and collateral damage.

11. Sovereign or Imperial Diet, or State of Europe It was in the course of the 18th century that “Europe” became a precise technical term of international law. The origins lead us again back into the 17th century. In 1693 a British author, well-known as a philanthropist in the North American colonies, William Penn, had written his Essay towards the Present and Future Peace of Europe . 29 He hoped that “the Sovereign Princes of Europe … would agree to meet by their stated deputies in a General Diet, Estates, or Parliament, and there establish rules of justice for sovereign princes to observe one to another”. He called this “sovereign assembly”, which should decide all differences between the European powers, the “Sovereign or Imperial Diet, or State of Europe”. Amongst the states or regions which should send deputies to the European Parliament was even Courland. But Penn stressed also that Turkey and Russia belonged to Europe, and concluded that “if the Turks and Muscovites are taken in, as seems but fit and just”, they should also send deputies to the European assembly.

12. Maritime Law and Trade Regulations Sea Laws Medieval European powers developed sea laws governing maritime trade, addressing issues like piracy, salvage, and jurisdiction over waters. These laws facilitated trade and fostered a degree of international order on the high seas. Hanseatic League Organizations like the Hanseatic League, a powerful association of trading cities, established regulations for commercial activities. These regulations promoted stability and efficiency in trade across the continent.

13. “Civilized nations” The recognition of other non-Christian states as members of the international community since 1856 corresponded to the dominant British conception of international law being the legal order of all civilized nations.41 In less than a generation also China, Japan, Siam (Thailand) and Persia (Iran) entered the once European society of nations (which since the independence of the USA in 1776 had received also overseas states). The new Asian members had to accept and study the rules of international law as developed by the legal science of Europe and the Americas.42 In continental Europe positivism prevailed, meanwhile in the Anglo-American world the ideas of enlightened natural law as represented by Vattel were alive.43 Both traditions met in the work of the Swiss classic Johann Caspar Bluntschli (†1881).44 His lawbook on the “modem law of civilized nations” ( Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt , first published in 1868) was a great success due to the humane, liberal and cosmopolitan views of the author. It was this kind of international law which Martti Koskenniemi has characterized as a “Gentle Civilizer of Nations”.

14. Eastern europe The important role of the science of international law is demonstrated also by the contributions of scholars teaching in Eastern Europe. The total division of Poland between Russia, Austria and Prussia since 1795 led also to rather open frontiers between the three monarchies who had been victorious as allies against Napoleon I.46 Russia, where a college for legal studies had not been founded before 1775,47 fully participated in the scientific world in the later 19th century. It was a Russian scholar from a German-Baltic family, Fedor Fedorovich de Martens (†1909) who in 1882 published in Russian language two volumes on “International Law of Civilized Nations”, which were also translated into German (by Karl Bergbohm in 1883/86) and French, but also into Chinese and Japanese. The German scholar August von Bulmerincq (†1890), author of Das Völkerrecht oder das internationale Recht (1884), had also been teaching in Dorpat (Tartu).49 After all it cannot surprise that the first Hague Peace Conference50 was convened in 1899 on initiative of the Russian Czar Nicholas II (who recently has become a saint of the Russian Orthodox Church).

15. Outcomes of 1 st world war With World War I the dominant role of Europe in world politics ended definitely. The downfall of the three allied empires of Germany, Austria and Turkey as well as that of the Russian Empire had changed the political map of Europe considerably.51 The resurrection of Poland, the formation of three independent Baltic states Estonia, Latvia and Lithuania, the separation of Finland from Russia, the statal independence of Czechoslovakia, the separation of Hungary from Austria and the enlargement of Serbia into Yugoslavia were important dates of the period between World War I and World War II. The once European law of nations was now universal. That the League of Nations as a peace organization for the whole world failed was a tragedy for mankind, but mainly for Europe. The expansion of communist and fascist movements culminating in the formation and expansion of the Soviet Union (since 1917) and the rise of fascist Italy (1922) and nationalsocialist Germany (1933) led to World War II with more than 55 million people killed, and atrocious war crimes. The obscene Hitler-Stalin-Pact of 1939 had reduced the Baltic states to a Soviet area of interest.

16. Diplomatic Relations and Treaties 1 Ambassadors The use of ambassadors became common, facilitating communication and negotiation between European powers. This diplomacy played a crucial role in preventing and resolving conflicts. 2 Treaty Obligations Treaties were used to establish alliances, resolve disputes, and regulate trade. These treaties helped establish a framework for cooperation and order among medieval states.

17. The Influence of Roman Legal Traditions 1 Roman Law Corpus The rediscovery of the Roman law corpus, particularly Justinian's 'Corpus Juris Civilis', had a profound impact on European legal thought. Roman legal principles were adapted and applied to contemporary issues. 2 Legal System Roman legal concepts like natural law, legal personhood, and the principle of 'res judicata' (the finality of judgments) became integrated into medieval legal systems.

18. Challenges to Enforcing International Law Decentralization The fragmented nature of medieval Europe posed challenges to enforcing international law. Powerful monarchs often acted independently, sometimes defying international norms. Lack of Central Authority The absence of a central authority capable of enforcing international law made it difficult to ensure compliance. This often led to disputes and conflicts between states.

19. The Impact of the Crusades Expansion of International Relations The Crusades, while religious in nature, also had significant international implications. They expanded trade and diplomatic relations between Europe and the Middle East, fostering a greater awareness of the world beyond Europe. 1 New Legal Challenges The Crusades introduced new legal challenges, such as the treatment of conquered territories and the status of religious minorities, which influenced the development of international law. 2

20. The Legacy of Medieval International Law 1 Foundations Medieval international law laid the foundations for modern international legal principles, such as the concept of 'just war', international arbitration, and diplomatic relations. 2 Continued Evolution While medieval international law faced challenges in a decentralised Europe, it established fundamental principles that continued to evolve and shape international law in subsequent centuries.