The reception and protection of diplomats and embassies

Some general concepts

Fundamental to the idea of a law of nations in ancient times was the proper respect and protection to be accorded to the official representatives of other sovereigns. Two ancient States might have been in a condition of distrust or competition, and yet diplomatic contacts were constantly promoted and reinforced between them as long as they were not actually at war. The principles of diplomatic intercourse were surely seen as rules to be followed save in the most grievous breach. The international law of diplomats and diplomatic protection was fundamental, because without it the simplest forms of negotiation between independent polities would have been impossible. The rules of diplomatic conduct were, therefore, motivated by the highest demands of necessity. Before launching into the more specific ideas surrounding the functions of diplomatic personnel in antiquity - including their reception and protection from harm - some significant general concepts of diplomatic practice should be noted.

Each of the ancient cultures surveyed in this study held strong notions of hospitality and the proper courtesies and facilities to be extended to strangers from afar. In a world of imperfect and dangerous communications and means of transport, where even modest distances posed incredible obstacles and difficulties for travelers, hospitality was more than a merely desirable institution of personal favor. Rather, in each of the State systems considered here, hospitality was sanctioned and ritualized.

This study has explored the assertion that an ancient law of nations had the traits of a primitive legal system. After considering the sources of international legal obligation in antiquity, I have reviewed the three essential areas in which law influenced ancient State relations: (1) the reception of envoys and the protection of aliens living in ancient States; (2) the making and enforcement of treaties; and (3) the rules governing the declaration of war and the actual conduct of hostilities. I have not merely sought to catalogue instances where ancient States apparently recognized these doctrinal features of a law of nations. Instead, the object has been to establish recurrent patterns of thinking and practice concerning these doctrines.

This study has thus scrupulously avoided the conclusion that there was a single, cohesive body of rules for a law of nations, recognized by all States in antiquity or that such rules were proximate to those that we regard today as being part of “modern” international law. Instead, I conclude that there was a common idea held in antiquity that international relations were to be based on the rule of law. The embrace of that idea, and not any particular structure of process or doctrine, is what qualifies ancient international law as something more than “primitive.”

It remains to elaborate these points by responding to the two most prevalent critiques of the idea that ancient international relations were based on a rule of law.

This is a study of the intellectual origins of international law. This volume combines techniques of intellectual history and historiography in order to account for the earliest developments in the sources, processes and doctrines of the law of nations. This combination of methods is not only essential for considering the earliest formation of ideas of international law, but also for beginning an understanding of the manner in which those ideas have been received by modern publicists and the extent to which they have been recognized in the modern practice of States.

My book will thus critically examine what has become an article of faith in our discipline: that international law is a unique product of the modern, rational mind. I argue here that it is not. While this volume charts the intellectual impact of the idea of ancient international law, it purposefully ignores the appreciation of this subject by historians, political scientists and internationalists. My study, moreover, confines itself to the single inquiry of whether the ancient mind could and did conceive of a rule of law for international relations. I certainly do not attempt to argue or suggest here that modern principles or doctrines of international law can be traced to antiquity. Nor do I pronounce judgment on the exact manner in which the ancient tradition of international law was received in early-Modern Europe or after. These inquiries must be left for later research and discussion. I confront here, therefore, an ancient law of nations on its own terms.

The primary assumption of this study is that there existed at certain times and places in antiquity authentic systems of States which were disposed, through their interactions, to conceive of rules of state behavior, norms that we might call today the law of nations or international law. This assumption has been debated quite extensively. Indeed, it goes to the heart of my thesis - that ancient peoples were able to envision exogenous limits on State conduct in international relations. This chapter provides a cursory, and by no means exhaustive, answer to the question whether State systems and international relations existed in the three times and places considered in this book: the ancient Near East (from 1400 to 1150 BCE and 966 to 700 BCE), the Greek city-States (from 500 to 338 BCE), and the wider Mediterranean during the period of Roman expansion (from 358 BCE to 168 BCE). My primary goal here is to trace the outlines of a defensible posture concerning the existence of authentic State systems in antiquity, while, at the same time, giving an overview of the historiographic literature on this subject. Although most of this material will be familiar to students and scholars of ancient and classical history, it is less familiar to international lawyers, and, anyway, it is necessary to cover this ground before any intelligble observations can be made regarding the nature of a law of nations in antiquity.

Having explored how ancient States made friends through diplomacy, and how they made faith through treaties, it is now time to turn to the questions of how the rule of law influenced the manner in which war was declared by ancient peoples and whether there were any legal restraints on the conduct of hostilities in antiquity. On first consideration, it would seem fanciful to suggest that ancient States deemed themselves bound by definitive rules of State behavior in wartime. Such an intimation seems counter-intuitive precisely at moments in ancient international relations that values associated with peaceful coexistence between ancient polities were being discarded in favor of notions of national particularism, imperial conquest, or ethnic self-preservation.

This chapter offers, therefore, a second look at the seeming oxymoron of an ancient law of war. The discussion here is divided into two broad themes. The first is how ancient States commenced hostilities with each other. This topic subsumes such matters as what justifications were considered as sufficient to begin a war with another State. Moreover, this part will look at the procedures that ancient States employed to formally declare war. Last to be discussed is how ancient States viewed the legal consequences attendant on a condition of war.

The second theme of the chapter will be the extent to which ancient States observed rules in the actual conduct of warfare.

International law has been called a primitive legal system. A review of the literature developing that assertion is made elsewhere in this study, and it does provide the initial premise for this chapter. International lawyers will go to any lengths to defend their discipline against the charge that it is anything less than “real” law. Yet they will readily concede that State relations in the ancient world were unprincipled, devoid of any sense of legal obligation, and without effective sanctions. In short, they acknowledge for antiquity what they deny for the modern law of nations. This chapter critically reviews this concession by examining the sources of a law of nations, and of international legal obligation, in ancient times.

A number of characterizations have been attributed to primitive legal systems. Some of these describe the contents of primitive legal doctrines, most notably the lack of certainty and security of expectation, the limited range of norms, and the use of retaliation (rather than social sanction) as the decisive element of enforcement. Other characterizations describe what might be called the “process” elements of primitive law. Legal fictions, which transformed doctrines by subtly changing their underlying assumptions as social demands required, competed with formalism which exalted form (the integrity of ritual) over substance (the adaptability of rules).

Moreover, the very sources of legal obligation can be called “primitive.” Two phenomena have been observed in this respect. First, there is the importance of custom in determining the content of norms.

This chapter continues the previous discussion of the ancient world's engagement with the ideas of community, tolerance, and trust, the basic prerequisites for the development of international law. The focus shifts away from ancient civilizations' treatment of individual foreigners, whether they be visiting merchants, resident aliens, or honored guests and emissaries. Instead, the goal now is to explore the ways that ancient peoples pledged their troth in international relations. The emphasis here must be on the formal methods and structures of ancient treaty-making, the nature and sources of international legal obligation (partly manifested in international agreements) having already been considered earlier in this study. This chapter will examine the forms of treaties in antiquity, their substantive terms and conditions, as well as consider the procedures by which they were concluded, altered, and terminated.

Beginnings of the ancient treaty tradition in the Near East

General suppositions and the earliest texts

Much historiographic attention has been directed to examining the structure and forms of ancient Near Eastern international agreements. The bulk of this literature was inspired by parallels between biblical texts and the extant records of Egyptian and Hittite international transactions. As a result of this investigation, the contours of which will be reviewed here, some scholars have suggested that there is an essential unity in “the ancient oriental treaty pattern.”