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SOVEREIGNTY IN

INTERNATIONAL LAW

FIVE LECTURES

BY

E. N. VAN KLEFFENS

M I N I S T E R O F S T A T E A N D A M B A S S A D O R

O F T H E N E T H E R L A N D S

1953.

1

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o

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E X V N K L E F F E N S

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CURRICULUM VITAE

KLEFFENS, E e lco Nico laa s v an , L L . D. ; b o rn Hee ren v een (Ne th e r

lands ) , 17 N ove m ber 1894 ; edu ca t io n : Univers i ty o f Ley den . A djus ted

sh ipp ing ques t ions a r i s ing ou t o f F i r s t Wor ld War fo r Nether lands ,

1919 ;

Member Secre ta r ia t League o f Nat ions , 1919-1921 ; Secre ta ry

to Board o f Direc to rs , Roya l Dutch Pe t ro leum Co. , 1921-1923 ; Deputy

chief of legal sect ion , Minis try for Foreign Affairs , 1923-1927; Deputy

chief of d iplomatic sect ion , 1927-1929; head of d iplomatic sect ion ,

1929-1939 ; Min is te r to Swi tzer land and Nether lands Delega te to

League of Nations , 1939; Netherlands Minis ter for Foreign Affairs ,

1939-1946; hea d o f N ether lan ds de lega t ion a t San Franc isco Co n

fe rence, 1945 ; M in is te r wi th ou t Port fo l io and Ne ther la nds R ep re

sentat ive in Securi ty Counci l and Economic and Social Counci l of U.N. ,

1946-1947; Nether lands Ambassador to Uni ted S ta tes o f Amer ica ,

1947-1950; Min is te r o f S ta te , 1950 ; Nether lands Min is te r to Por tuga l ,

1 9 5 0 ; M em b er o f C u ra to r iu m o f H ag u e Acad e my o f In t e rn a t io n a l L a w .

P U B L I C A T I O N S :

1.

The

Relations between

the

Netherlands

and Japan in the Light of

International

Law, 1605-1919, 1919.

2. The Rape of

the

Netherlands, 1940 (also in Dutch, Spanish and German).

3.

Articles in periodicals.

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SOVEREIGNTY

IN INTERNATIONAL LAW

I N T R O D U C T I O N

E TY M O L OG Y O F T H E W O R D " S O V E R E I G N T Y "

I

shall have the pleasure of exploring with you the theme of

sovereignty in international law. In conformity with what

you are entitled to expect in an institution which calls itself

"Academy of International Law , mine will be a series of

lectures of an essentially juridical nature.

But this does not mean that you will hear me explain only

considerations of a strictly and exclusively legal order. In

saying this I touch upon a fundamental concept underlying

these lectures, and not only these lectures, but, generally

speaking, that which, in my way of thinking, tuition in law

should be. For it seems impossible to me to confine oneself,

as an instructor in or as a student of law, to an examination of

purely legal concepts. It is not possible to isolate law if one

really wants to understand it as what it

is :

not a set of purely

formal, abstract rules, but a living organism, a product of many

social, economic, philosophical, psychological, cultural and

historical factors, all of which have contributed to shaping it,

and are still contributing to its ever unfolding development.

A parallel m ay here be dra w n, it seems to me, w ith the study of

history. N ot so very long ago, the teaching of history was largely

the teaching of political an d m ilitary sequ ences: how a policy was

shaped and followed, how it led to war, which battles were

fought, what peace was made, and so on. Little attention was

given to economic and especially to social, psychological or

cultural factors. In our days, that defect has largely been

remedied, and due heed is being paid in modern historiography

to all those various factors which had a part in shaping our

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6 E. N. VAN KLEFFENSSO VEREIGNTY IN INTERN. LAW (6)

condi t ion and des t in ies qui te as la rge as s ta tec ra f t and a rmed

force.

So i t should be in the teaching of law. For the teaching of law

m us t never , in m y op in ion , be res t r ic ted to a ju gg le ry w i th

abs t rac t ions and deduc t ions there f rom. I f law is rea l ly to be

unders tood , i t has to be seen as the re f lec t ion and resul t of many

var iega ted fac tors : soc ia l , economic , psychologica l , ph i loso

ph ica l , cu l tu r a l , h i s to r i ca l . I sha l l endeavour , w i th in the na r row

com pas s of these lectures , to d o j ust ice to th em as best I ca n,

for in this respect internat ional law does not dif fer f rom other

branches of law. The sc iences a re a l l c lose ly re la ted , and the

va r ious head ings unde r which they a r e known to us a r e conve

nient labe ls , showing where in a par t icu la r sec t ion the main

accen t l i e s , r a the r than compar tmen t s sepa ra ted f rom o the r s by

a wa te r t igh t bu lkhead . You may compare the sc iences to a

s te l la r sys tem, orif you l ike smal l ra ther than la rge th ings

to an a tom: you may devote spec ia l a t ten t ion to one of i t s

componen t pa r t s , bu t you wi l l neve r unde r s t and the t rue

na ture , func t ion or scope of tha t par t so long as you do not

p ay du e a t ten t ion to the o th er par ts in the i r influence on the

one you have chosen as the par t icu la r objec t of your s tudy.

S o , l aw by a l l means , bu t no t l aw " in vacuo" .

A second in i t i a l r emark would seem appropr ia t e a t th i s

poin t . There a re many wr i te r s on subjec ts of th is k ind whose

work tends to leave the impress ion tha t in the course of the

cen tu r i e s in te rna t iona l l aw has been de f ined and deve loped

chie f ly by ind iv idua l lawyers and phi losophers . I t seems to me

tha t they forge t not only tha t the h is tory of impor tant ideas i s ,

l ike a l l h is tory , a cont inuous s t ream, but a lso tha t i t i s not a t

a l l the work of a number of men of one s ingle ca l l ing , wr i t ing

in more or less wide ly separa ted t imes and p laces . In the case

of sovere ignty , s ta tesmen and pol i t ica l ins t i tu t ions (pol i t ica l in

a broad sense , compr is ing in par t icu la r economic and soc ia l

ins t i tu t ions) have had an inf luence no less than the lawyers and

phi losophers . To leave out of account the inf luence of s ta tesmen

and pol i t ica l ins t i tu t ions would be l ike descr ib ing a r iver by

leav ing ou t o f accoun t i t s banks and wid th , men t ion ing on ly i t s

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(11)

INTRODUCTION

11

"m a i o r "

;

subsequently, "superior" became the current term

1

.

It was the popular language in England and in France which

appears to have laid hold of the word "sovereign" to express

the same notion, and this mutation of the earlier significance of

the term must have consolidated itself in the course of the xinth

century, for it was in 1283 that Philippe de Beaumanoir wrote

his famous dictum "cascuns barons est (sic)

sovrains

en se baron-

nie"

2

; elsewhere in the same book, he mentions the citizens of

Artois, who "pledent par devant le roy Paris d'aucuns

"apiax

3

qui sunt fet li par raison de le

sovrainet

4

. And as

regards England there is, a mere 7 years later, a book known

as the "South English Legendary or Lives of Saints", in which

the phrase occurs: "For, Sire King, thou art mi sovrein, and the

"Erchebischop al-so"

5

. This chronological quasi-coincidence

need not surprise us when it is recalled how close were the

relations between Fran ce and England in Plantagenet times, and

how strong influences from France on the English language.

From then on, the term began its triumphant progress. It

only gradually lost its purely topographical significance of "in a

"high location". Dante used it three times, once in that literal

sense

8

, once figuratively to indicate "of a high order" ' , and

once in the modern sense of "supreme authority" in which

subsequently it came to be exclusively employed

8

.

The word "sovereign" for the highest, the supreme power in

a given legal order may have been a product of the feudal age,

but the notion it represents had forced itself upon the human

mind ever since men began to establish independent political

groups, and that goes back to the dawn of time. It cannot be

1. Francesco Calasso, I Glossatori e la Teoria della Sovranit (Milan,

1951), p. 46 note 11 ( important).

2.

Coutumes de Beauvois is , ed. Salmon, XXXIV, 41.

3 . I .e. appeals .

4 .

LXI , 72 .

5. Early English Texts-series, 1887, vol. I , p. 74.

6. Inferno, 3 2: "Cosi '1 sovran li de nti all 'altro po se" .

7. Inferno, 22: "Barat t ier fu non piccol , ma sovrano."

8. Convivio, 63: "Comandare i l suggetto al sovrano procede da ordine

perverso; che ordine dir i t to i l sovrano al suggetto comandare."

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12 E. N.VAN KLEFFENSSOVEREIGNTY IN INTERN. LAW (12)

emphasized enough that there was sovereignty and there were

sovereigns long before these terms were coined, just as Molire's

Monsieur Jourdain spoke prose long before he had ever heard

of it, or just as there was Macchiavellism long before Mac-

chiavelli

2

. Terminology differed, but not the essence of that to

which the appellation referred. And since we are more interested

in the essence than in its designation by words, let us now see

whether we can fix some main positions on the chart depicting

the successive stages through which in many lands the notion

of supreme power has passed in the course of the centuries.

1.

Charles Benoist , Le Machiavlisme, vol . I : Avant Machiavel (Paris

1907).

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CHAPTER I

A N T I Q U I T Y A N D M I D D L E A G E S

1 . THE EAST

T

HE thing that strikes the attention of us moderns is that in

the East in olden times most nations did not seem to feel

the need of some legal theory with regard to the State,

public authority and international relations. In China, Egypt,

Babylonia, A ssyria, Persia, and Israel, State and public auth ority,

like international relations, have to our knowledge never been

the object of methodical legal study. The subject of sovereignty

was no exception, in spite of the existence of many sovereign

states which had dealings with one another of various kinds.

The explanation was, of course, partly that, in those countries,

there was no spiritual freedom as we know it, and partly that

public law had no individual existence, bound up as it was with

religion and moral philosophy to an extent which excluded

independent treatment. In China there have at least been

attempts at formulating a code of behaviour for sovereign

states

1

, but its practical importance was insignificant.

India appears, to some extent, to have been an exception,

having evolved at least a concept of territorial sovereignty

2

,

but it is difficult to assess the influence that concept had in

actual practice.

2 .

GREECE

Ancient Greece was, as we all know, teeming with greater or

smaller sovereign states, amongst whom the majority were the

well-known city-republics, with Athens in the front rank. No

1.

Ge ttell , History of Political Th ou gh t (Portuguese ed ., Lisbon 1936)

p .

45. See also Siu Tchouan Pao, Le Droit des Gens et la Chine Antique,

Paris 1926.

2. B. K. Sarkar , Hindu Theory of International Relat ions , American

Political Science Review, XIII , p. 400-414 (1919).

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14 E. N. VAN KLEFFE NSSO VEREIGNTY IN INTERN. LAW (14)

wonder tha t , i n some b ranches a t l e a s t , i n t e rna t iona l l aw

reached a ce r ta in s tage of deve lopment : these sovere ign s ta tes

were equa l before the law, and many were in peaceful or

war l ike con tac t wi th one ano the r . T rea ty l aw; the l aw o f d ip lo

mat ic in te rcourse ; consula r law; the law concerning the peaceful

se t t lement of in te rna t iona l d isputes , and , to a ce r ta in extent ,

the law of be l l igerency and of neut ra l i ty , a l l r eached a ce r ta in

degree of evolu t ion

1

.

But on sovereignty there was l i t t le to be found in ancient

Greece . This seems the more surpr is ing inasmuch as the Greeks

gave cons iderable thought to the not ion of the s ta te

2

. W i t h

regard to sovereignty , the most that can be said is that the

no t ion o f supreme power ex i s t ed , a l though the mode rn Greek

word for sovereignty (Kuptapxiot) did not. In Aristotle 's Polit ica

the not ion occurs a t leas t three t imes: "The government i s

"eve rywhere sove re ign in the s t a t e " ; "The gove rnment , wh ich

" i s the supreme au thor i ty in s t a t e s" , and " In a cons t i tu t iona l

"gove rnment the f igh t ing-men have the supreme power"

3

.

But people do not appear to have paused to ask themse lves the

quest ions we shal l deal with in the course of these lectures;

they were content to s ta te the exis tence of a supreme author i ty ,

and asked themselves who were best sui ted to exercise i t . And

that , with regard to sovereignty , was a l l .

3 . ROME

The lega l c l imateif th is express ion i s permi t tedof Rome

was not favourable to the deve lopment of in te rna t iona l law, the

reason be ing a cons tan t t endency on the pa r t o f Rome to

consider o ther peoples as people beyond the pa le , people wi th

whom you can have deal ings , but essent ia l ly on a foot ing of

super ior versus infe r ior . Rome was Rome ( though i t s c i t izenship

1. St. Seferiades, Principes G nraux d u D roit Inte rna tion al de la Pa ix,

R.A.D.I . , vol . 34 (1930), p. 218-228. See also Victor Mart in, La Vie

internationale dans la Grce des Cits (Paris 1940).

2. H . Kra bb e, L ' Ide m oderne de l 'Etat , R .A.D .I . , vol. 13 (1926) ,

p .

515-524.

3 . I l l , 6 , 1; I I I , 7 , 1 ; II I , 7, 4, respectively (Jo we tt 's translation ,

Oxford 1885).

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(15)

ANTIQUITY AND MIDDLE AGES 15

was extended to Italians by the Lex Roscia), and none was

acknowledged as being its equal. The rest of the Roman orbit

was not, it is true, considered as conquered territory to be

annexed to such territory as Rome already possessed, but as the

land of other people, bound to Rome by ties of more or less

close and in any case permanent dependence

1

. It was a compli

cated system. The

eives romani

were in the front row. After them

came first the amici populi Romani, autonomous, and entitled to

have relations with other states, but not free with regard to

Rome, and in particular obligatorily neutral in Rome's wars.

Then came the

sodi:

military allies without foreign relations of

their own and with a trace of autonomy, of whom there were

different groups: the

Latini

(to be found not only in Latium

wh ere the Lex Roscia diminished their

raison

d'tre, but also in

various provinces, and especially in Spain), the foederati, and

the

civitates liberae ,

free in n am e, but no t in poin t of fact.

Thirdly, there was the group of the

dediticii:

those who ha d

surrendered to Rome's mercy, living henceforth under a

de

facto regime of greater or lesser tolerance. All were dependent,

the degree of dependency being different in respect of each

group. Prior to their total or partial subjection, all these ele

ments had possessed independent status, and therefore, so long

as they had it, had dealt with Rome as what we would call

equal subjects of international law. But by making with Rome

a pact of submission, of whatever degree, they lost that status.

Fourthly, and lastly, there were previously independent king

doms (such as Egypt), where the Roman emperors proclaimed

themselves successors to the throne. And so, within the

immensa

romanae pacis

maiestas

2

, as it came to be called, the possibility

of a continued existence, let alone of development, of interna

tional law disappeared as the sphere of Roman dominion was

extended. There remained, it is true (and for our purpose that

1.

Th e standard-w ork on the subject is T h. M om msen 's Roemisches

Staatsrecht , Leipzig 1887, especial ly vol . I II . But a remarkable chapter

on Roman public international law is to be found in the late Prof.J . van

Kan's lectures, given at this Academy in 1938, on the General Rules of

International Law (R.A.D.I . , vol . 66, ch. I , par . 7).

2. Pl iny the Elder , His tor ia Natural i s , XXVII , 1 , 2 .

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18 E, N. VAN KLEFFE NSSOV EREIGNTY IN INTERN. LAW (18)

late M. Charles Dupuis rightly observed at this Academy, "The

"co-existence of these great sovereignties seemed to call for a law

"to determine their relations. But none of them tended to main-

"tain with the others regular and continuous relations. Islam,

"then dominant and conquering, was thinking only of fighting

"and subduing the infidels; it accepted no definitive peace with

"them, admitting merely truces, simple interruptions in the

"w ars w hich w ere to be the no rm al state of affairs so long as there

"would be unbelievers to convert or subject. Such a state of

"mind evidently opened no possibilities of development to a law

"of peace between the Christian and the Musulman empires.

"A nd ap art from the religious and th e political and m ilitary

"antithesis resulting therefrom, none of the four empires was

"disposed to increase its peaceful relations with its neighbours.

"The distance separating their capitals favoured their separate

"existence; mistrust led them to ensconce themselves therein"

1

.

In order to study sovereignty in international law during this

early period, we shall therefore needs have to confine ourselves

to Western and Central Europe.

I believe it may safely be said that, speaking of Europe, the

great difference and contrast between the Middle Ages and the

modern era is, that in the Middle Ages, in spite of all diversity,

turbulence and sparse contacts, there was a strong accent on

unity, whilst in the modern era, in spite of all similarity and

close ties (turbulence there unfortunately remains), the accent

has been, hitherto at least, predominantly on separateness.

This medieval sense of unity was, of course, opposed by its

very nature to the growth of equal, sovereign states in the

modern sense. We shall see how they arose nevertheless in this

very period. To understand it requires an explanation.

That the sense of unity was so strong throughout the Middle

Ages was, withou t any d oub t, partly the result of the tenacious

and enduring Roman tradition of one emperor and empire, and

pa rtly of the consciousness of there being one Fa ith, one C hu rch ,

and one Head of that Church.

1.

Rgles Gnrales du Dro it de la P aix, R .A .D .I. 32 (193 0), 12.

Translat ion by v. K.

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(19)

ANTIQUITY AND MIDDLE AGES

19

In the course of h is very remarkable lec tures g iven a t th is

A cad em y in 1938

1

on the idea of in te rna t iona l organisa t ion in

i t s m a i n p h a s e s , m y e m i n e n t a n d l a m e n t e d c o m p a t r i o t v a n K a n

drew a careful ly shaded pic ture of this s ta te of things which, i f

you do not a l ready know i t , I th ink you wi l l r ead not only wi th

prof i t , bu t wi th p leasure . He reca l l sI regre t having to con

dense much tha t deserves to be read in fu l lhow the Chr is t ian

empi r e was cons ide red the con t inua t ion o f the o ld Roman

empi re . Med ieva l l awye r s spoke o f Roman l aw a s the i r own .

F r e d e r i c k B a r b a r o s s a m e n t i o n e d C o n s t a n t i n e , V a l e n t i n i a n , a n d

Jus t in ian a s h i s p r edecesso r s in one b rea th wi th Cha r lemagne

and Louis the P ious . The fasc ina t ion which the o ld empire

exe rc i sed on the mind o f Europe was inde l ib le , and r ema ined

so grea t tha t i t surv ived even the abdica t ion of the las t Weste rn

R o m a n e m p e r o r in 4 7 6;d i d n o t a n e m p e r o r , n o w " t h e " e m p e r o r ,

re ign wi th fu l l au thor i ty in Constant inople? The new ru le rs in

I ta ly d id not even a t tempt to usurp the imper ia l t i t le ; for the

Goths they may have been k ings , Reges Barbarorum, but for the

R o m a n s t h e y w e r e m e r e l y consul, o r

patricius,

o r

magister militum.

T h e coins of these rulers show ed n ot the ir ow n effigy, b u t th e

Byzant ine emperor ' s , and some , in sp i te of the obvious , in sp i te

of everyth ing , bore the legend

Invicta Roma

Unvanquished

Rome . And in a sense Rome was no t vanqu i shed ; i t r ema ined

caput orbis terrarum,

the he ad o f the wor ld , even to Ju s t in ian an d

a l though he r e s ided in Cons tan t inop le

2

. T rad i t ion was s t ronge r

even than r ea l i ty . Th i s t r ad i t ion o f the one endur ing empi r e ,

ex tending l ike a vas t dome or cupola over everyth ing of a

wor ld ly na ture , was suppor ted by a re l ig ious bas is . The book

of Dan ie l

3

, the second epist le of St . Paul to the Thessalonians ,

and some passages f rom the Apoca lypse , though fa r f rom c lear ,

formed the sc r ip tura l founda t ion of a be l ie f tha t there would be

four success ive domina t ions : tha t of Babylonia , tha t of the

M edes , t ha t o f the Pe r s i ans , an d tha t o f A lexan de r the G rea t ,

1. R .A .D .I . 66, p . 299 sq. W ith regard to l i terature and sources

relat ing to this sect ion, van Kan's masterly exposit ion gives an abundance

of material .

2. R.A.D.I . Const . Deo Auctore (de concept ione Diges torum), 10.

3 . I I , 36 sq. and VII , 7 sq.

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(21) ANTIQUITY AHD MIDDLE AGES 21

the pope or the emperor (or both simultaneously) at the top.

Latin was the comm on langu age in every field ; R om an law had

its adepts everywhere; we can only make the briefest mention

here of the sense of solidarity engendered by the Crusades. That

nevertheless there arose a number of sovereign states, is all the

more remarkable when it is remembered that, in addition to all

these unifying elements, there was yet another powerful institu

tion with a unifying tendency and a pyramidal structure:

feudalism, that peculiar political and social system, not of

Roman, but of Frankish origin, which is so characteristic of the

Middle Ages.

For it goes without saying that a structure in which every

gro up of people, high or low on the social ladd er, has a com mo n

lord who in his turn belongs to a smaller and higher group

having yet another chief, ends at the top in one being, who

could only be the unique pope or the unique emperor, or the

duality pope-emperor. Everyone of these three conceptions had

its protagonists, the Holy See being the most explicit and success

ful

1

. "Ego sum papa, ego sum imperator," exclaimed the great

pope Boniface VIII (1294-1303)

2

.

Potent indeed must have been the forces, and compelling the

circumstances which, in spite of all these adverse trends, made

it possible for several states to constitute themselves at an early

date as sovereign states (the word "sovereignty" then being

still unknown), independent from either emperor or pope, and

successfully to assert their status as such.

Never had the one-empire idea, that greatest attempt of all

time at supranational organisation in Europe, come so near to

realisation as during the reign of Charlemagne as emperor and

that of his son Louis the Pious, those brief 40 years from 800 to

840.

And yet, even this largest empire did not embrace all of

Western Europe. Let us allow contemporary documents to

speak for themselves.

There is left to us a cartulary or charter of Charlemagne,

1. See van Kan, op. cit., eh. I I I .

2.

See H. Finke, Acta Aragonensia, Berlin 1908, No. 90, p. 130.

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22 E. N. VAN KLEFFE NSSOV EREIGNTr IN

INTERN.

LAW (22)

inse r ted in the Corpus iu r i s canonic i

1

, w h ic h e nume r a t e s t he

vassals o f h i s em pire . I t m ent ion s w ith a sav ing-c lause

refer r ing to "a l l those who in addi t ion are subjec t to us" (celeri

omnesnobis subiecti) : the Roma ns , t he F r a nks , t he A la ma ns , t he

Ba va r i a ns , t he S a xons , t he Thur ing ia ns , t he F r i s i a ns , t he G a u l s ,

t he Bur gund ia ns , t he Br e tons , t he Lomba r d s , t he G a sc ons , t he

Benevent ins , the Goths , and the Spania rds . This leaves ou t the

S c a nd ina v ia ns , Eng la nd , S c o t l a nd , a nd I r e l a nd , un le s sw hic h

hard ly seems l ike lysuch impor tan t na t ions have to be taken

as coming under the sav ing-c lause of "o the r ' sub jec ts" .

A genera l r emark i s in o rde r he re . La te r imper ia l a s we l l a s

papa l c la ims were exorb i tan t when compared to ac tua l f ac t .

In so fa r a s the emperors a re concerned , the cu lmina t ing po in t

w a s r e a c he d un d e r H e n r y V I o f H oh e ns t a u f e n , Ba r ba r os sa ' s

son (1190-1197) who s imply c la imed the whole wide wor ld :

Teutonici orbem imperii non est transeundum

2

, i t is impossible to

leave the German empire ' s t e r r i to ry , s imply because i t has no

l imits . At least as ambit ious were some of the papal c la ims, the

theorybut mere ly the theorybeing tha t a l l the wor ld i s

St . Pe ter ' sfief. But in point of fact there were , in spite of all this

ambit ious and conf l ic t ing wishful th inking , severa l sovere ign

sta tes ,

and by our s tandards , they were sovere ign de

jure

too .

W e can no t , w i th in the comp ass o f these lec tures , dea l w i th

them a l l . In v iew of the i r impor tance , however , I should l ike to

say a word about a few of them

:

E n g l a n d , F r a n c e , S p a i n , t h e

I ta l ian c i ty - s ta te s , and the Swiss can tons .

1. England.

F o r mor e tha n tw o c e n tu r i e s , Eng la nd , ha v ing

become a s ing le k ingdom under Athe ls tan of Wessex (925-940)

3

,

a c know le d ge d a l l e g i a nc e to ne i the r pope no r e mpe r o r . "Mos t

" H o l y F a t h e r , " W i l l i a m t h e C o n q u e r o r w r o t e t o t h e p o p e ,

"you r l e ga te H umbe r t ha s i n t ima te d to me in you r na me tha t I

"should swear you and your successors an oa th of homage .

"I refuse to take the oa th because I have not promised to swear

"i t and because my predecessors have not taken one , as far as

1.

Decretum Gra tiani , C . 11. qu . 1, c. 37.

2.

Mon. Germ Scr ipt . , XXI , p . 193.

3. F. M. Stenton, Anglo-Saxon England (Oxford 1943), 336.

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ANTIQUITY AND MIDDLE AGES

23

" I know , t o you r p r e d e c e sso r s

1

" . But in 1173 the for tunes of

k ing Henry I I had fa l len so low a f te r the murder o f Thomas

Becket , tha t he agreed to accept his k ingdom for himself and his

e ldes t son Richard Coeur de L ion f rom the pope as the pope ' s

vassal

2

. Th i s pa pa l t i e d id no t p r e ve n t R ic ha r d , w he n c a p tu r e d

in Au s t r ia by the em pero r H en ry V I in 1194 , f rom ackn ow led

gin g his vasse lage to the H oh ens tauf en , a subjec t ion w hic h ,

whatever i ts rea l s ignif icance , was formally declared a t an end a

c e n tu r y l a t e r by Ed w a r d I I ( 1 3 07 - 1 3 27) w ho s t a t e d : Regnum

Angliae ab omni subiectione imperii esse liberum

3

. As for the pope ,

John La c k la nd ma d e unqua l i f i e d submiss ion to pope I nnoc e n t

I I I in 1213 , rece iving his kingdom as a f ie f of the Holy See

subjec t to t r ibu te , a payment s topped in 1332

4

. In 1366 Par l ia

me n t una n imous ly r e pud ia t e d pa pa l supe r io r i t y

5

.

Conc lus ion : in the midd le ages , England was a sovere ign

count ry , the pe r iod be tween 1173 and 1366 excepted , bu t i t s

dependency dur ing these la t te r yea r s was of a fo rmal r a the r

than of a r ea l na ture .

2 .

France. F r a nc e fo r me d p a r t o f Ch a r l e m a gn e ' s e m p i r e .

When in 840 his only successor Louis the Pious d ied , there was

f i rs t a shor t per iod of turbulence , ending three years la ter with

the t r e a ty o f V e r d un , one o f t he mos t impor t a n t t r e a t i e s e ve r

m ad e , an d dec is ive for the fu ture d eve lopm ent o f E uro pe an d

the r ise of many sovere ign s ta tes . Under i t , the empire was

divided into three par ts , and s ince there could only be one

emperor , the imper ia l c rown began to wander , f i r s t go ing to the

midd le pa r t un t i l 875 , then for ha l f a dozen yea rs to wha t now

is F ra nc e , an d finally , in 88 1 , to G erm an y wh ere , wi th one ve ry

shor t in te r rup t ion , i t r emained ever s ince , un t i l in 1806 the

1.

Works of Lanfranc of Can terbury , quoted by M . Zim me rman n,

Crise de POrgan. Internationale la Fin du Moyen-Age, R.A.D.I . , 44

(1933) ,

p. 363.

2. Ibid.

3. Quoted by Seferiades , R.A.D.I . , 34 (1930), p. 327.

4 .

Stu bb s, Co nstitutional History of En glan d, I , 561 (Oxford 1891).

See also Shakespeare, King Jo h n (V, 1 , 4 ) : "Ta ke again Fro m this my

"hand, as holding from the Pope Your sovereign greatness and authori ty".

5.

Stubbs , op. cit., I I , 435.

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LAW

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empire came to an inglorious end when Napoleon's star was

still rising.

At no time has France acknowledged feudal ties with the

Holy See

1

. As for the em pire, F ran ce has adm itted its vasselage

for the last time in the course of the reign of Otto the Great

(936-973)

2

. For the rest France was a sovereign state, although

its territorial limits varied, differing to a greater or lesser extent

from those of present-day France.

3.

Spain. In 628, Swinthila, king of the Visigoths, seized the

last strongholds of the empire in Spain and, first of the Gothic

kings, reigned supreme and alone in the Iberian peninsula.

After the Moors, having invaded Spain in 711, had been partly

driven back, there arose four kingdoms: Navarre, Aragon,

Castile, and Portugal. Portugal always kept, as we all know,

a separate existence

3

; the greater part of Spain was finally

united by the marriage of Ferdinand of Aragon to Isabella of

Castile.

Th ere is no trace of any p ar t of Spain acknow ledging vasselage

to either emperor or pope. On the contrary, the great Castilian

king Alfonso X, the Wise (1284) emphatically repudiated any

allegiance. In his famous book Las Siete Partidas

4

(1265), he

w r o t e : Non habernos mayor sobre nos en el temporal

5

. O n e c a n n o t

be clearer.

4.

The Italian

cities.

So far, we have been dealing with states

of considerable size, inhabited by people of different ethno

graphic origin or composition and speaking different languages,

but by the middle of the xith century there began to manifest

itself in a nu m be r of cities in the nor the rn h alf of Ita ly a ten

dency towards autonomy first, and towards full sovereignty

thereafter, cities inhabited by people of the same race, the same

historical background, the same language. In those Italian

1.

Z im m e r m a n n ,

op. cit.,

p. 362.

2. Seferiades,

op. cit.,

p. 237.

3.

In 1143 the first king (Afonso Henriques) acknowledged the Pope's

overlordship, becoming his vassal and promising on behalf of himself and

his successors to pay an annual tribute (Livermore, History of Portugal,

Cambridge 1947, p . 68).

4.

Ed. of the Royal (Spanish) Academy of History, Madrid 1807.

5. I , t i l . I . 1. XV.

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25)

ANTIQUITY AND MIDDLE AGES 25

communities there set in a reaction against the general insecurity

resulting from oppression by feudal lords and the lack of effec

tive power, in those distant parts, on the side of the emperor.

In a variety of

ways,

legal or not so legal, by simple usurpation

or against some form of compensation, those cities began to

elect their own magistrates, to look after their own administra

tion, to make their own laws, and-important pointto con

duct their own foreign relations with others.

In the beginning, the overlordship of the emperor continued

to be duly acknowledged, but the process of emancipation went

so far, that in 1158 the emperor Frederic I considered it neces

sary to take measures. He first tried consultation, convening the

imperial diet in Roncaglia. There, the jurisdiction of the empe

ror was defined with the assistance of the four most celebrated

doctors of law of Bologna, the privileges of the cities finding

recognition only insofar as they had been lawfully granted, but

not insofar as they had been usurped.

But the sap of freedom was then running too strong, and the

settlement of Roncaglia soon set at nought. Warfare ensued.

At first the emperor had the upper hand. Milan was utterly

destroyed (1162) because of the lead it had taken in the eman

cipation movement. But the fortunes of war turned : the cities

banded together in the Lombard League, and in the battle of

Legnano (1176) a decisive victory was won by the communities.

As a result, peace was signed at Constance in 1183. But although

all privileges of the cities were admitted, the link which kept

them under the empire was upheld. Gradually, however, this

link came to be severed by means of

grants,

or against payment,

or simply by unilateral affirmation by the communities, and in

the end they were what we would call fully sovereign states

1

.

5.

The Swiss cantons.

The history of the emancipation of the

Swiss cantons from their several overlords resembles in its main

characteristics that of the Italian cities. It only set in a good

1. I am indebted, in respect of this section, to the excellent rsum by

Gaspare Ambrosini in Rassegna Italiana di Politica e di Cultura, Nov.

1952,

pp . 493-494. See also Bmont and M ono d, M edieval Europe, Eng l.

ed. (New York 1902), p. 308 sq.

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26

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dea l ( two cen tu r ies ) l a te r , and i t s consummat ion wi th regard to

the whole of the Swiss cantons as we know them took a much

longer t ime: i t was only in 1815 that they were able to cal l

themselves the "xx i i sovere ign can tons o f Swi tzer land ' ' . Bu t the

incep t ion o f th i s p ro t rac ted movement took p lace in the Middle

Ages , the per iod we are a t present concerned wi th , and as ear ly

as 1291 we see the inh ab i tan ts of Schw yz, of U ri an d of U nt er -

wa lden m ak in g a s o l em n p ac t , maliciam temporis attendentes , for

the i r common defence

1

, as if they already were sovereign states.

Th i s p ac t was r en ewed 2 4 y ea r s l a t e r a t B ru n n en

2

; in 1332,

Lu ce rn e j o in ed t h e o r ig in a l th ree in y e t an o th e r co n v en t io n

3

;

in 1351 a l l o f them and , in addi t ion , Zur ich widened the c i rc le

4

,

add ing Glarus in 1352

5

. An d s o t h e m o v em en t co n t in u ed . Th e

l ink wi th Austr ia and wi th the emperor was , formal ly a t leas t ,

maintained for a long t ime, ending only when the Swiss were

much-needed a l l i es in the wars wi th Burgundy .

The resul t of th is analys is c lear ly is that , contrary to the very

pers is tent concept ion that the sovereign s ta te , unknown in the

M idd le Ages , is a p ro du ct o f Renaissance an d Re form at ion ,

there were in the Middle Ages qu i te a number o f sovere ign

states , some smal l , bu t some very la rge , and a l l o f them impor

tant in the l ight of history

6

.

What , now, made the r i se o f so many separa te sovere ign

states poss ib le a t a t im e wh en , as w e hav e seen , the pre vai l in g

spir i tual t rends were towards uni ty? I th ink i t was a congeries

of factors which together produced th is resul t . There was the

am bit i on of the ru lers , w he the r k ings , or doges , or c i ty- tyra nts .

There was undoub tedly a l so the in f luence o f na t iona l d ivers i ty ,

a t a l l t imes a powerful e lement in sus tain ing sovereignty ; we

1. Nabholz and Klaeui, Quellenbuch zur Verfassungsgeschichte, Aarau

1950, p. 1 sq.

2.

Ibid.,

p. 5 sq.

3 .

Ibid., p. 9 sq.

4. Pact of Zurich,

ibid.,

p. 14 sq.

5.

See for these developments Wm. E. Rappard, Cinq Sicles de Scurit

Collective (1291-1798), Paris-Geneva 1945, p. 11 sq.

6. It goes without saying that this author does not subscribe to dicta

such as Brierly 's , who said (R .A.D .I. 23 (1928) , 491 ): "I l n 'y avait de

"souverain, ni dans l 'Antiquit, ni au Moyen Age, soit en fait , soit en

" thor ie" .

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(27) ANTIQUITY AND MIDDLE AGES 27

shal l see other examples of i t la ter on. There was the inabi l i ty

of the emperors to make their author i ty fe l t far f rom the centre

of the empire , the resul t be ing a ba lance of power . F ina l ly ,

I ment ion the s lowness , dangers , and d i f f icu l t ies of communica

t ions .

Al l th is , opera t ing in conjunc t ion over a per iod of t ime ,

produced those fa teful resul ts which ran so complete ly counter

to the sp i r i tua l c l imate preva i l ing in those turbulent centur ies .

And now, a f te r fac ts and ins t i tu t ions : law and doc t r ine . For

doctr ines on sovereignty there existed (even if the word sover

eignty i tse lf did not) , and they have kept their interest and

impor tance to the p re sen t day . We mus t now examine them.

When dea l ing wi th Rome , I d r ew a t t en t ion to the i s t c en

tury def ini t ion by Proculus of a

liber popu lus externus,

w h a t w e

would cal l a foreign power , the def ini t ion being

is qui nullius

alterius populi potestati est

subiectus

1

,

" tha t which i s subjec t to

" the power of no o ther people . " This def in i t ion was not for

go t t en dur ing the Midd le Ages;smal l w on der wh en i t is re m em

be red how ve ry g rea t the a t t en t ion was which Roman l aw then

received , and the inf luence and prest ige i t then enjoyed. I t is

much more su rp r i s ing tha t in our day so many peop leand

they were not " les premiers venus"have taught for so long

tha t in the Middle Ages the concept of sovere ignty was un

k n o w n

2

. I n h i s in t roduc t ion to the "L ibe r Cons t i tu t ionum" o f

Freder ic I I , Roman emperor as wel l as k ing of S ic i ly , Mar ino

d a C ara m an ico , a jur i s t from so uthe rn I ta l y of whose life l i t t le

is known, but who must have l ived in the second half of the

xi i i th century , g ives a most remarkable t rea t i se

3

on wha t we

would cal l sovereignty , and he recal ls Proculus ' def ini t ion

a lmos t immed ia te ly in the beg inn ing , the open ing sen tence o f

1.

Digest 49, 15, 7, pr. 1.

2. Ve ry im po rtant for the whole of this sect ion: v. d. He ydte , Die

Geburtsstunde des Souveraenen Staates (Ratisbon 1952), and Fr. Calasso,

I Glossatori e la Teoria della Sovranit (Milan 1951). For this point see

Calasso, ibid., p . 22 n. 14, where a long list of authors holding this view

is given.

3. This interesting dissertation, of which 2 copies are to be found in

the Vatican a nd 1 in the Na tional Library at Naples , has been rep rinted

as an annex to Calasso's

op. cit.

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28 E. N. VAN KLEFFEN SSOV EREIGNTY IN INTERN. LAW (28)

the 3rd section reading: "Sed in rege libero, qui nullius

alterus

potestati subiectus est,

idem dicimu s." Q uite a different theory

was offered by St. Thom as Aq uinas. I shall refer to their theories

later on.

As a matter of law, however, such kings were considered

exceptions, exceptions to the overall temporal power of emperor

or pope. The old Roman tradition of there being one central

temporal power was so strong, that a king was presumed to be

dependent unless it could be proved that he was a free sovereign,

later known in Fran ce as an "alleux sou verain". Since every

thing legal had to be based on Roman or Canon law, the main

legal basis for this general presumption was the canon in apibus

("among the bees") of the Decretum Gratiani

1

which, trans

lated into English, says: "among the bees one of them is the

chief,

the cranes follow one of them literally: so there is one

"emperor, one provincial magistrate. When Rome was founded,

"it could not have two brothers at one and the same time",

etc.

2

. Such reasonings, which strike us as almost childish,

enjoyed the greatest authority in the Middle Ages, largely

because of their exalted origin.

This, then, was the general rule. As to exceptions, they had

to be construed individually according to the merits of each

case.England

was generally

3

supposed to be outside the empire;

Spain

ha d driven out the im perial troops

4

. The case of

France

was a little more complicated, the consecration of its free or

sovereign status being a famous decretal by pope Innocent III

of the year 1202 known as per venerabilem , in which it was

stated that, since the king of France hardly acknowledges any

superior in matters temporal (cum ipse

superiorem

in

temporalibus

minime recognoscat)

6

,

the pope could grant, without offence being

given to anyone, a petition the king had addressed to him.

1.

Causa VII , q . I , c . 41.

2.

Cf. Calasso, op. cit., 56-57.

3.

But not by al l : Huguccio of Pisa, teacher of Pope Innocent III , held

that , l ike France, England was, legally speaking, subject to the Emperor

(see his com m ent on the D ecre tum G ratian i in Calasso, op. cit., p. 63).

See also above, p. 23.

4. Ibid.,

p. 24.

5. Calasso, op. cit., p. 44 , quotes Pat r . Lat . , Epis tolae , CCXIV, col .

1130 sq.

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(29) ANTIQUITY AND MIDDLE AGES 29

That this was commonly accepted, is shown by a Glossa of

Accursius ( 1250) which , on recalling th at the sons of those

who belong to the Roman empire are inpatria potestate, adds:

Aliae vero gentes quaeda m ut servostenent filios, ut sciavi, aliae ut

prorsus absolutos, ut francigenae

1

, which c lear ly impl ies tha t the

king of France was considered as not being under the emperor.

Without going into other cases such as Sicily and the Scandi

navian states, we must therefore conclude that in the Middle

Ages there were sovereign states, even although the pope claimed

spiritual (and at times even temporal) overlordship. The sense

of the medieval concept of sovereignty should now be examined.

Sovereignty has two faces. One looks outward, towards the

outside world, being concerned with foreign relations; it was to

this face that the digest referred when, as we have seen, it

defined a free nation as "not being subject to another nation's

po w er". But in addition to this negative side there is yet ano ther,

a positive face, a face which looks inward, and refers to a na

tion's power to regulate its own affairs; call it autonomy if you

like. These aspects are what is currently known as external and

internal sovereignty, the study of one being the concern of

international law, whilst the study of the other is the object of

what we call constitutional and administrative law. Now the

digest only referred to the former (which is perhaps surprising in

a work of a predominantly civilistic, and therefore internal

na tu re ). It is greatly to the credit of medieval lawyers tha t they,

in addition, clearly saw the second or internal side of the ques

tion. An d when we speak of m edieval lawyers, this credit should

largely be given to that great centre of legal learning, without

any doubt theprimus inter pares of the period: Bologna.

The earliest text I have found is still concerned solely with the

aspect of independence. It is not Italian, but French, not a text

of lawyers who wrote in Latin, but more in the nature of a

popular saying in the vernacular. It dates from the end of the

xnth century, and says:

1.

Gl.

romanorum,

Inst. I, 9.

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ANTIQUITY AHD MIDDLE AGES

31

"superiorem

in

temporalibus minime recognoscat" (since

in

matters temporal hehardly recognizes a superior).

The difference with

the

preceding statements, including

the

digest,is striking. T he re, kingsaresaidto be sovereign because

of the

fact

that they have

no

superior; here because they

say

that

they recognize no superiora subjective standpoint which is

open

to

proof that they

havea

superior.

Now in 1202,

wh en this

pronouncement

was

made, Innocent

III

happened

to be

anxious, for political reasons, to save the susceptibilities of the

emperor

1

.Is it too

hazardous

a

guess

to

think tha t ,

by

represen

ting the sovereign position of the king of France as open to

evidence that

he was no

sovereign,

but

subject

to the

emperor,

the pope

was

trying

to be

agreeable

to the

latter whilst trying

hard not to give offence to the former? I believe that this

subtle change

had a

political origin,

but the

curious thing

is

thatinspiteof that origin, which must have been recognizedby

every contemporary, several lawyers

2

followed

it,

Italians

and

French alike, though

all of the

Bolognese school. T hu s

the

great

commentator Bartolus himself (1314-1357), whoin conformity

with

the

digest which

did not

speak

of

kings

but of

peoples

spokeof commonwealths (civitates) instead of k ings

3

; also Jean

de Blanot

(

1255),

a

Frenchman

who

studied

in

Bologna

4

, and

Guillaume Durand

(

1275),

a

F rench jurist

who

spent almost

the wholeof his life in Italy, teacherof law in Bologna and in

Modena

5

; they

all

speak

of a

king

(or

commonwealth)

who

doesnot himself acknowledge a superior,and not of a king (or

commonwealth)

who, as a

matter

of

fact,

is not

subject

to

another's power.

Others, however, continued

the

objective tradition

of the

1.

See, for

this episode, Calasso, op. cit.,

pp.

53-54.

2.

Most vehement

of all,

however , Pope Boniface VIII (1294-1303),

who with his accustomed violence thundered: Nee insurgat hie superbia

gall icana, quae dici t quod non recognoscit superiorem. Mentiuntur: quia

de jure sunt

et

esse debent

sub

rege romano

et

impera tore" ,

etc. (Mon.

Germ. Hist. , Leges, series

IV, t. IV, p. 1, n. 173).

3.

Calasso,

op. cit., 27 n. 27 and the

sources mentioned there.

See

also

Barcia Trelles

in

R .A .D . I .

67

(1939),

468.

4. Ibid., 114, 116.

5 . Ibid.,115 sq.

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32 E. N. VAN KLEFFE NSSO VEREIGNTY IN INTERN. LAW (32)

digest: Alanus (Alan or Allen), an Englishman who, as so many

in those days when the general use of Latin made learning

truly international, had been drawn to Bologna by the spell of

its legal magic (1208)

1

; Caramanico whom we already have

met before

2

, and, in Spain, Alfonso the Wise, who in 1265

wrote in

Las Siete

Partidas that the king is, "quanto en lo tem

poral , bien asi como el emperador en su imperio" and "nos . . . .

"que por la merced de Dios non habernos mayor sobre nos en

"el temporal"

3

.

So we have seen that the original simplicity and objectivity of

the definition was somewhat marred by Innocent III by the

injection of the subjective element for what may be assumed

were political reasons: consideration for the claims of the

emperor to universal temporal dominion. But the next pope of

the name of Innocent (IV, 1243-1254), when still the great

Bolognese master Sinibaldus de' Fieschi, asserted the correspon

ding papal claim. Commenting on Innocent I l l 's decretal "per

venerabilem" to which we have referred, he subtly said that, if

the king of France does not acknowledge a superior, that is

merely adefactostandpoint, for

de iure

he is subject to the p op e,

and not, as some say[ut quidam

dicunt)

, to the emperor

4

.

Small wonder that, caught between the millstones of the rival

claims of emperors and popes, the doctrine of sovereignty could

not flourish in the M iddle Ages. Yet, com pared with R om an

times,

there was no inconsiderable development. In addition to

Proculus' definition in the digest, we have already seen that the

two faces of sovereigntyone looking inward and meaning full

legislative, executive and judicial power, and the other looking

outward and meaning independencewere clearly perceived.

Moreover, it is possible to point to no less than two medieval

attempts at formulating a doctrine of sovereignty. The. first is

1. Ibid.,

35.

2.

Proem ium to the Liber Co nsti tutionum of Frederic II , Em peror

and King of Sicily, X (reprinted as an annex to Calasso, op. cit.).

3 . I I , t i t . I , 1. V an d I , t i t . 1, 1 , X V .

4.

For want of space this is a greatly abridged version. See for the whole

story Calasso, op. cit., p. 65. Sinibaldus ' s tatement in Innocentius IV,

Super Decretal. IV qui filii sint leghimi. Per Venerabilem, gl. recognoscat.

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ANTIQUITY AND MIDDLE AGES

33

by the South-Italian lawyer Marino da Caramanicoalready

mentioned; the second by St. Thomas Aquinas. Both will now

be briefly analysed.

Marino da Caramanico's treatise is typical for the period

(2nd half of the xinth century) and for legal thought of those

days.

With an abundance of quotations from Roman law-texts

to prove his contentions, his argument is as follows:

A free king (i.e., in conformity with Proculus' formula which

Caramanico uses,

qui nullius

alterius potestati subiectus

est)

is the

equal of an emperor, and therefore what we call sovereign (and

what Caramanico calls "princeps"), like the emperor. For, like

the emperor, such a free king makes laws. In temporal matters

both king and emperor have the right to command and to see

their commands obeyed; everything in a kingdom, and also

booty, is the king's, just as in an empire it is the emperor's.

Kings as well as emperors have the duty to see that justice is

done; they have the same insignia, and their position vis--vis

the Church is identical. In Justinian's compilation, Caramanico

points out, the words "royal" and "imperial" are used indiscri

minately, and the word "princeps" is applicable to either king

or emperor. Remember too, he adds, that there is not justone

emperor, but that there are two or three: one in the West, one

in the East, and then onehe saysof the Bulgars.

Th ere follows an argum ent, in" pa rt of extreme subtlety, to

show that the undisputed fact that Sicily was a fief of the Holy

See does not result in subordination of the Sicilian king to the

pope in temporal matters, but this argument, having no general

significance, need not therefore concern us here. Caramanico

then proceeds to offer an ingenuous theory of more general

interest to show why that king is not subordinate to the emperor,

stating that Rome, having acquired by conquest vast territories

which used to be separate states, did not hold those territories

de

iure,

but simply

defacto

a theory which closely resembles the

Stimson non-recognition concept

x

of 1932. The Roman empire

1. Letter from the U.S. Secretary of State (Col. Stimson) to the Chair

m an of the Senate Comm ittee on Foreign Relations, dated Feb ruary 23,19 32

(Hack worth 's Digest of Internation al Law, I , 334-335, W ashington 1940).

I. 1953. 3

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34 E. N VAN

KLEFFENSSOVEREIGHTY

IN INTERN.

LA

W (34)

simply suffered, Caramanico adds, what it had made other

people suffer, and h e quotes a poet (unkn ow n to me) who said :

"nee lex est aequior ilia

"quam necis artifices arte perire sua".

Do not forget, he recalls, that to liberate is better than to

enslave, and if the empire alleges that we have freed ourselves

through violence, stealth or fraud, we reject that contention.

The treatise endsapart from a few digressions which need

not d elay us by declaring tha t, if in Sicily R om an law is in

force, that is not because Sicily is under the empire, but because

of reasons of convenience. And, he concludes triumfantly, he

feels "without titubation" (sic) that for all these reasons the

king of Sicily is a free king and that he is properly called the

monarch or sovereign ("principem") of his realm.

All this is xmth century international law, strongly imbued

with, in fact thoroughly steeped in, Roman legal concepts.

Caramanico dealt with sovereignty as if it were property in the

sense of R om an civil law : "wh erea s", he says (X II I , 25), "a

"feudal lord has the direct dominium and civil possession of a

fief,

the vassal has the

possessio

utilis et

naturalis ;

as such, his

argument is highly typical for medieval thought on the subject.

For the rest , you will have noticed that it is an argument by

indirection, a sort of syllogism: the sovereign emperor has

certain powers and attributes

;

the king has the same power and

attributes as the emperor; ergo the king is sovereignall in the

best medieval style of the schola.

The time has now come to show you that, leaving aside for

once Roman law as the chief source of guidance and inspira

tion, the Middle Ages produced quite a different theory of

sovereignty, a theory which, though coeval with that of Cara

manico, was not determined by any given system of law, but

derived from general considerations not dependent on any

place or time, forming part of a majestic construction of univer

sal design. I refer to that great and dominating figure of the

xmth century: St. Thomas Aquinas (1225-1274).

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35)

ANTIQUITY AND MIDDLE AGES

35

So far, we have been concerned with jurists, jurists that is

who, true to the methodology of their time, were at pains to

find in R om an law an answer to every problem. St. Th om as, the

"Doctor Angelicus", theologian and philosopher, is different.

If the lawyers swore by Justinian, St. Thomas, always guided

by Christian theology, derived his philosophy from the writings

of

Aristotle.

It is pertinent to remark here that Aristotle's works,

or what was left of them, had after a long eclipse been restored

to Western thought in the xiith century, having followed a

strange circuitous route: the Greek text had been translated

into Arabic, from which language Jews in Spain translated it

into Latin, one of the earliest re-discoverers being Gerald of

Cremona (1187)

1

. Apart from Aristotle, St. Thomas relies on

the bible and Christian theology; Roman law is not ignored, but

plays a very subordinate part.

St. Thomas knew a large part of Italy, as well as Paris and

Colognea considerable section of the civilised world of his

day. No wonder that, with his extensive learning and his know

ledge of the world, his bent is universalist

:

at the same time the

servant of a Church which claims to be universal, and of man

kind irrespective of nation and race; whose teaching is for all

times and all places, aiming, with rare talent and conspicuous

success, at a compelling demonstration of unity in the plurality

of social phenomena.

Though first and foremost a theologian, St. Thomas is one of

the great figures of political science, whose pronouncements

thereon are to be found not only in many places of the cele

brated Summa Theologica, but also in his less-known works,

such as the Summa contra Gentiles, the Commentaries on Aristo

tle's Politica, and especially De Regimine Principum

2

. It is

perhaps not superfluous to recall here a remark of professor

Barcia Trelles, made at this Academy in 1927, when he said

1. G. Cohen, La grande clart du Moyen-Age, pp. 17, 52 (New York

1943).

2. Opera Omnia , Ed. Leon. , Vives , Mar iet t i . Of De Regimine Pr in

cipu m , S t. Th om as only wrote th e first book an d the first six ch apte rs

of book II; the author of the rest being his disciple Ptolemeus of Lucca

(Gettell , op. cit., p. 136 n.).

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36 E. N. VANKLEFFENS SOVEREIGNTY IN

INTERN.

LAW (36)

th at in the M id dl e Ages the sciences ha d no t yet been sys tem at ized

in the form of a ser ies of c lear ly def ined subjects , and that

t h eo lo g y was t h e co m m o n den o m in a to r fo r a l l p ro b l em s

1

.

I f S t . Thomas was a h igh ly o r ig ina l wr i te r on po l i t i ca l and

l eg a l m a t t e r s b ecau s e h e was n o t j u s t an o th e r a de p t o f R o m a n

law, h a lso was or ig inal in the sense that he broke wi th current

doc t r ine by tak ing as the cen t ra l po in t o f h i s th ink ing no t the

p o p e o r t h e em p ero r , b u t man, wh o m h e ca l l s " n a tu ra l i t e r

"animal sociale e t pol i t icum" , in the foots teps of Aris to t le and

his

COV

TToTuTiKv

2

. In th is respect he was an innovator , or , i f

you l ike , a revolut ionary , deal ing a f i rs t heavy b low to the

h ierocra t ic and the imper ia l concep ts o f the po l i t i ca l communi ty

as p rev ious ly advoca ted by the Holy See and the emperor .

So far by way of general character is t ics . But we are special ly

co n ce rn ed wi th s o v e re ig n ty , a wo rd S t . Th o m as n ev e r ap p ea r s

to have used. Yet he g ives a complete and or ig inal theory of

sovere ign ty , fo r which he uses the word "p r inc ipa tus"

3

. Sta tes ,

h e t au g h t , a r e p a r t o f t h e g rea t u n iv e r s a l co m m u n i ty o f m an k in d

wi th o n e co m m o n d iv in e an d o n e co m m o n n a tu ra l l aw , w i th

which s ta te -made law mus t be in conformi ty . Wi th tha t reserva

t ion , the s ta te (c iv itas ), l ike au tho r i ty a G od-g ive n " so m eth ing " ,

i s a perfect community : i t has fu l l au thori ty , and i t s h igh mis

s ion i s to ensure the common good , an ob jec t ive a im (a l though

i t s t rans la t ion in to fac t i s a mat te r dependen t on t ime , p lace

and c i rcumstance) , and therefo re by no means des t ined fo r

arb i t rary or sel f ish in terpretat ion . In i t s in ter ior aspects , St .

Thomas names as the main a t t r ibu tes o f a sovere ign s ta te the

power to leg is la te , to levy taxes for the real isat ion of the bonum

co m m u n e , t o p u n i s h c r im in a l s , an d t o dec l a re war , a ca t a lo g u e

of which echos a re heard to the p resen t day *. In i ts exterior

aspect , the s ta te i s the equal of o ther s ta tes , of whom i t i s inde-

1.

R.A.D.I. 17 (1927), 127.

2.

Politics, I , 2, 9.

3. Used in the same sense by Marino da Caramanico, and later on

(1324) by M arsilius of Pad ua and Joh n of Ja nd un o in their Defensor Pacis

( I I I ,

2, 11) (Goldast , Monarchia II , pp. 153-312).

4 .

W. Sukiennicki , La Souverainet des Etats en Droit International

Moderne; p. 36 sq. (Paris 1927).

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(37) ANTIQUITY AND MIDDLE AGES 37

pendent in principle, and also in practice by cultivating, to the

fullest possible extent, cuTpKEioc, that typical Aristotelian con

cept

1

, which St. Thomas calls

per se

sufficientia, giving it only

rela tive significance as the highest degree of self-sufficiency in

every fieldmaterial as well as immaterial, as demanded by the

bonum communeattainable in any given circumstances. Such

is the

communitas perfecta:

the sovereign state acco rding to St.

Thomas, in which power and reason both aim at the common

good, whilst avoiding arbitrariness and oppression.

You will have noticed that these are concepts and notions

very different from those of the Romanising lawyers. Aquinas

deserved to be discussed here, however briefly and inadequately,

were it only because of his originality of approach and thought,

and because of his comprehensive universalism, in which all the

individual pieces, the concept of sovereignty not excluded, find

their appropriate place in one immense, logical, closely knit

system.

But another main reason for drawing attention to this great

est of medieval theologians-philosophers is the important fact,

already mentioned, that this saint of the Church dealt a heavy

blow to the primacy of both pope and emperor by adopting the

Aristotelian conception of choosingmanas the starting-poin t of

his system. The cardinal importance of the human individual ,

anyhu m an individua l, w as thus restored to the central p lace it

had occupied in ancient Greece, and in this sense St. Thomas,

who in other respects is so essentially representative of medieval

thought and method, clearly belongs to the Renaissance. He

blazed a trail soon followed by others who broadened it until it

became the highroad of Humanism, closely allied withor to

some extent dissociated from Christianity, that Humanism

which has been so largely instrumental in shaping the whole

Western world as we know it to-day, with its strong accent on

the high value of the individual.

The breach made by St. Thomas in the primacy of pope and

1. Politics, VII, 4-5 ("to have all things and to want nothing is suffi

ciency" Jow ett 's translation, Oxford 1885).

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38 E. N. VAN KLEFFENSSOVE REIGNTY IN INTERN. LAW (38)

emperor was in s t r ic t accord wi th the sp i r i t of the age . The

rea l i ty of so many sovere ign s ta tes asse r t ing the i r independent

pos i t ion v is - -v is both the Holy See and the empire could not

but s t r ike publ ic opin ion forcefu l ly . In I ta ly , in France and in

Eng land , e i the r the p r imacy o f the pope , o r tha t o f the emperor ,

o r bo th were unde r a t t ack . Dan te was a champion o f the

e m p i r e

1

, and by the same token h is genius weakened papa l

c la im s. In Fr an ce , the wr i t ings of J o h n of Par is , a b r i l l ian t

young Domin ican Fa the r , deny ing tha t e i the r the pope o r the

emperor was super ior to the o ther , tended to conf i rm the sover

e ign pos i t ion of the k ing of France

2

. The F rench s t a t e sman

Pierre Dubois , in a book he wrote in the years 1305-1307, is

ex t r eme ly ou t spoken aga ins t the emperor : " the re i s no sane

"person , I be l ieve , capable of th inking i t probable tha t i t could

"happen a t th is conc lus ion of centur ies , tha t there would be in

" th ings t empora l one s ing le mona rch o f the who le wor ld admi

n i s t e r i n g e v e r y t h i n g , w h o m a l l w o u l d o b e y a s t h e i r s u p e r i o r "

3

.

Mars i l ius of Padua (1270-1340) , r ec tor of the Univers i ty of

Pa r i s , was the au th or , i n co l l abora t ion wi th J o h n o f Ja n d u n , o f

a book under the t i t le ofDefensor

pacis

(1324)

4

, one of the most

remarkable pol i t ica l t rea t i ses of the middle ages . Like another

g rea t F ranc i scan , th i s t ime an Eng l i shman: W i l li a m o f O c c a m

(1280-1347)

B

, he denied the supremacy of the Holy See and

advoca ted the wides t au tonomy for ind iv idua l s ta tes .

Thus , the so i l was be ing prepared for new ideas , ideas which

would be in keeping with the facts and real i t ies of the per iod.

Var ious deve lopments f i r s t weakened , and f ina l ly des t royed

the o ld order . By the na ture of th ings , the Grea t Schism (13 78-

1429) d id grea t damage to the c la ims of the Holy See to supre

macy. Most espec ia l ly , the Rena issance put as s t rong an accent

on the ind iv idua l a s ea r l i e r med ieva l though t had p laced on one

1. De M ona rchia (about 1310). See H. K elsen, Die Staatslehre des

Dante Alighieri (1905).

2.

De Potestate Regia et Papali , Goldast , Monarchia II , p. 108.

3. De Recuperat ione Terrae Sanctae. ed. Langlois , in Collect , de Textes

pour servir l 'tude et l 'enseignement de l 'histoire (Paris 1891). The

quotat ion is from par. 63.

4. Goldast , Monarchia, I I , pp. 153-312.

5. Ibid.

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CHAPTER II

T H E M O D E R N E R A

1 .

A NEW CIVITAS MAXIMA : THE SOVEREIGN STATE AS A MEMBER

OF T HE INT E R NAT IONAL C OM M UNIT Y UNDE R NAT UR AL L AW

T

HIS i s the per iod in which the words "sovere ign" and

"sovere ignty" became f i rmly accred i ted in the language

of law and poli t ics , and the sovereign sta te def ini te ly

establ ished as the subject

par

excellenceof in te rna t ion a l law . W hi ls t

before the law the sovereign sta te was , as such, the absolute equal

of a l l others , great or small , i ts re la t ive importance lay in the

realm of fact or , to be more precise , of power and ceremonial

not in tha t of lega l s ta tus . This came to be the genera l

conception of this per iod regarding sovereignty. But this a lso

is the poin t where d ivers i ty of opin ion begins . We now have

to address ourselves to an analysis of this evolut ion.

As before , we shal l not conf ine ourselves , as too many

authors do , to the ideas of phi losophers and lawyers a lone .

T r u e ,

phi losophers and lawyers are of ten those who formulate

in te rna t iona l law, but the cont r ibut ion of the pol i t ic ians and

men of act ion in general is f requently neglected. Even if they

do not themse lves formula te in te rna t iona l law ( they have done

it , as everyone knows, very of ten) , i t is they, the men of act ion

w h o ,

toge ther wi th fac ts or events beyond human cont ro l ,

create the raw mater ia l f rom which rules of law are dist i l led

by others . I t is impossible to say whose is the major share ,

bu t bo th g roups have the i r impor tance .

F rom the th i r t een th cen tu ry on , the sp i r i t o f ind iv idua l i sm ,

so character is t ic of the Renaissance , a l l ied to a tendency to

dissocia te pol i t ics f rom moral i ty , led to a paroxysm of

self-

asser t ion in the Government of the Nor th- I ta l ian c i ty-s ta tes

long before Macchiavel l i gave incisive expression to that

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(41) THE MOD ERN ERA 41

mentality

1

. With few exceptionsthe main being Venice and

Genoa, these cities were in the hands of a number of the

most unscrupulous tyrants the world has ever known. Having

come, in very many cases, from nowhere, with no legitimate

position and no dependable followers, their roots were shallow

and shaky their fortunes; perpetually threatened by rivals,

they defended themselves by every possible means, and good

faith or scruple counted for nothing. This orgy of power and

of attempts to seize or preserve it, whatever the means, resulted

in purest anarchy, and it may be doubted whether those city-

despots had a common code of honour such as so many criminal

societies keep as their unwritten law.

In this respect, Northern Italy of the later Middle Ages was

on a small scale what, but for the action of the great inter

nation al jurists of the xv ith century and their disciples,

Europe and the world might well have become as time went

on. The spirit of the Renaissance was a ferment which quickly

spread beyond the borders of Italy. Its action was fully deployed

when, from the beginning of the xvith century, a new and

powerful agent came to strengthen its individualist tendencies:

the Reformation, with its strong accent on direct and exclusive

responsibility of the individual to God, sovereigns thus being

responsible for their stewardship to no one but the Creator

alone. Secondly, the old pattern of Western tradition found

itself suddenly shaken beyond measure by the discoveries of

Africa, India and the Americas, discoveries which affected

everybody (were it only by a tremendous rise in prices)

x

and,

raising a host of brand-new problems, broadened the horizon

far beyond the confines of Christendom and Turk. A spirit

of inquiry and adventure, of individual action and self-reliance,

of international anarchy was abroad, discarding old restraints.

This was true in particular as regards the rulers of states,

freed from their now antiquated fetters of papal or imperial

1.

Reference is made to the excellent lectures given on the subject by

the late M. Charles Benoist in this Academy, R.A.D.I. 9 (1925) , p. 131 sq.

2. See M arjorie Grice -Hu tchinso n, Th e School of Salam anca (Oxford

1952), pp. 1-4.

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42 E. N. VANKLEF FENS SOVERE IGNTY IN INTERN. LAW (42)

supremacy , and , as a reac t ion , going to ext remes of

self-

asser t ion.

Those were the gene ra l t endenc ie s , p ronounced and endur ing .

The a t tempts a t g iv ing them a ra t iona l bas is were there too .

" T h e grea tness of a pr in ce , " sa id in 1576 J e a n Bodin (wh om

we shal l meet less perfunctor i ly hereaf ter) sadly and resignedly ,

" the grea tness of a pr ince i s , to speak the t ru th , noth ing but

" the ru in or reduc t ion of h is ne ighbours , and h is s t rength i s

"mere ly somebody e lse ' s weakness . "

1

Hear a lso the lugubr ious

Thomas Hobbes (1588-1679 ) , g r and theor i s t o f in t e rna t iona l

anarchy: " I t i s manifes t tha t dur ing the t ime men l ive wi thout

"a common power to keep them a l l in awe , they a re in tha t

"condit ion which is cal led war; and such a war , as is of every

"man aga ins t every man. . . . To th is war of every man aga ins t

"every man , th is a lso i s consequent , tha t noth ing can be

"un jus t . T h e not ions of r ight an d wro ng , jus t ice an d in jus tice

"h av e there no p lace . Forc e , an d f raud , a re in w ar the

" t w o c a r d i n a l v i r t u e s . "

2

And k ing Char les Gusta f of Sweden

(1622-1660) , who pompous ly dec la r ed : " In o lden t imes , God

"condescended to speak to the k ings through prophe ts or

"vis ions ; nowadays He makes His purposes known to us by

" the favourable c i rcumstances in which he puts us to extend

"our f ront ie r s a t the expense of our ne ighbours . In tak ing

"advantage of these oppor tuni t ies , we only obey the d iv ine

" w i l l . "

3

The tendenc ies to le t Europe rever t to the law of the jungle

were very strong. Also , the sovereign sta tes had novel means

to asser t themse lves . With the d isappearance of the feuda l

system as a l iving force in human re la t ions , the old feudal

a rmies a lso d isappeared . The i r p lace was taken f i r s t by mer

cenar ies ; " in mi l i ta ry organisa t ion the per iod before Louis XIV

"may be cha rac te r i zed gene ra l ly by say ing tha t wa r s were

ca r r i ed on wi th men and money p rov ided by p r iva te entrepre-

1. Les Six Livres de la Rpublique (ed. of 1608), pp. 792-793.

2.

Leviathan I , 13 (Mol^sworth ed. I l l , pp. 112-113 and 115).

3. Quoted by R. Dupu4, in "Aperu des Relat ions Internationales en

Europe" , R.A.D.I . 68 (1939) , 80.

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43)

THE MODERN ERA

43

neurs.

x

Later on, the mercenaries were replaced by standing

armies: the colonel, from manager of his regiment, became

the servant of a sovereign state. Similarly, at sea the task of

the privateers and armed merchantmen was secondary to the

national navies. These armed forces, having become an integral

part of the machinery of the sovereign state and obeying

exclusively its sovereign discretion, accentuated its separateness

and made it more averse than ever from recognizing any

superior, physical or spiritual.

Yet another force should be mentioned tending to create

self-contained, rounded-off states: the desire to unite scattered

territorial possessions into one single territory without enclaves.

Telders gave a good illustration in the case of France

2

, annexing

Calais, Artois, Bresse, Bugey, Gex, Lille, Beam, Charolis,

Roussillon, Franche-comt, etc., in little more than one century.

We also know the history of Prussia. The time of the

national

state came only later, although since 1640 (capitulation of

the city of Arras) there are many treaties in which the inha

bitants of a ceded territory are granted the right to leave the

territory on condition that they sell their real property.

3

It goes without saying that all these facts and institutions

strengthened the separate individuality and dynamism of the

sovereign state, which asserted

itself,

driven on not only by

political ambition, but also by a desire for economic gain.

The general welfare of the international community counted

for little if anything; the welfare of the individual sovereign

state was all that mattered, and is not that, to some con

siderable extent, the position even to-day? These things are

too well known to require comment. Let us rather see what

happened to temper the unfettered individualism of the

sovereign state.

The xinth, xivth and xvth century were the time of

1.

G. N. Clark, The Seventeenth Century (1929), p. 103 (quoted by

B.

M. Telders in a sketch for an essay on the rise of sovereignty, in Ver

zamelde Geschriften vol. II , pp. 304-305).

2.

Op. cit., p. 305.

3. J . L. K un z, L'O ption de Nationali t, in R.A .D .I . 31 (1930),

p .

114 sq.

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44 E. N. VAN KLEFF ENSSO VE REIGNTY IN INTERN. LA W (44)

its Sturm undDrang.It requ ired a very long appren ticeship to

find its bearings and to get to know the extent and limits of

its "sovereign" power. In present-day conditions of rapid and

frequent communications between thickly populated and

closely administered states, that process would no doubt have

been much shorter. But in those centuries each sovereign lived

to a large extent in a sphere where the pressure of his equals

was not constantly felt, and although this led to the illusion

of being as much a sovereign as Charlemagne himself, it was

quite a pleasant illusion, which was not at all refuted daily

by stark reality. Only in cases of enemy invasion or of a defeat

was the pleasant illusion disturbed. No wonder that it took

sovereigns a long time to realise that they were not so sovereign

after all.

Charlemagne had been a real sovereign, sitting alone in

imperial splendour at the top of the political pyramid. But

in that unique sense, those that came after him and called

themselves sovereign were not sovereign at all. "If one state

"can determine its relation to other states," thus wrote a

xixth century American sociologist, "then all with an equal

"sovereignty must have the same right", a remark he preceded

by declaring: "this kind of sovereignty has proved itself

"untenable; it is illogical."

1

This passage is important, because it shows that, as soon

as there was more than one sovereign calling himself sovereign,

the notion of sovereignty changed its meaning. Instead of

denoting the one and only figure with imperial authority over

everybody everywhere, "sovereign" came to refer to n more

than one out of many independent princes or commonwealths,

not subject to anybody else's authority and therefore free to

administer their state at will. But in the matter of relations

with outside powers, those sovereignsnew stylesaw their

sovereignty limited wherever it impinged upon the similar

sovereignty of someone else.

This was purely a defacto limitation, and many were the

1. Jo h n H . W . Stuckenberg, SociologyThe Science of H um an Society

(New York 1903), pp. 124-125.

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(45) THE MODERN ERA 45

attempts, despite this restriction, at extending the limits by

waging war. But wars, however numerous and frequent, were

not perpetual, and in any event these sovereign states in the

new sense, being as many individually directed, but uncoor

dinated forces, reached every time, consciously and purposely

or unconsciously and naturally, a precarious and unstable

equilibrium, unstable because the energies of these forces were

constantly shifting and changing. Such is the nature of the

balance of power, that well-known term of political science

and practice. Thus it had been in the city-states of Italy;

1

thus it was in the rest of Europe from the Middle Ages until

the First World War; thus it will always be where law, morality

or a sense of order do not speak, or do not speak loudly enough.

The balance of power is the result of a law of nature (law in

the sense of a law of physics), not a principle of law in the

legal sense. It may be consciously sought, as was done, amongst

others, by Henry vm of England, who had his portrait painted,

as described by a x vinth century au tho r: "hold ing in a

pair of scales France on the one side and Spain on the other

so perfectly balanced that he alone determined, by casting a

weight he held in one hand, which scale would go up and

which down, his motto being: Cuiadhaereo proest (the one I

support wins) .

2

But even if that balance is not consciously

sought, it will nevertheless always be attained, however unstable

and variable, because the mechanics of the forces in action

make i