Document Type

Article

Disciplines

International Law

Abstract

Twentieth-century international law places special emphasis on the treaty as a legal source and insists that treaty obligations are legally binding. More than a decade ago, the late Clive Parry taught Cambridge University students that the nineteenth-century treaty was binding in honour alone. He also argued that before the First World War publicists and diplomatists excluded treaties from the ambit of international law which, he said, was then conceived to be primarily customary. This paper on the middle ages is the first part of a larger project testing the validity of Parry's thesis through an examination of treaty obligation in the medieval, classical and modern periods of international law. The middle ages are understood as ending with the Protestant Reformation, and the classical period as ending with the 1919 Versailles Treaty.

The present study argues that the medieval treaty was binding in canon law by virtue of the ecclesiastical jurisdiction over solemn oaths. As Christians, kings were said to be subject to the pope by reason of sin (ratione peccati), in this connection, perjury and oath breaking. Subsequent work will demonstrate that the Protestant Reformation destroyed Christendom's legal unity, thereby setting the stage for the rise of the classical system of international law. 2 As in the middle ages, post-reformation lawyers continued to intone pacta sunt servanda (agreements must be kept). But, the new framework offered no legal remedy for breach of treaty. Various materials will be used for a sequel showing that, for approximately four hundred years, treaties were deemed to be either morally binding or binding in honour alone. Particular attention will be paid to the meaning of "honour" and its significance for the European state system.

For the modern period, later work will explore the treaty as a major beneficiary of the international-law revolution effected at the end of the First World War. First, treaties will be shown to have become an integral part of international law. Second, it will be argued that the treaty rocketed into number-one position among the sources of international law. Third, making the treaty legally binding will be identified as one of the principal purposes of first the League of Nations and then the United Nations.

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