London 2004, S. 185-213
9
Justifying Territorial Claims in Classical and Hellenistic Greece:
The Beginnings of International Law
1Angelos Chaniotis
I. 'International l a w ' or j u s t a f e w g o o d m e n w i t h principles?
T h e twenty-three Magnesian judges w h o were elected b y their city in 112 BCE to resolve a territorial dispute between the K r e t a n poleis of H i e r a p y t n a a n d Itanos were not t h e first Greeks ever to confront such a task. In fact, it was not even the first t i m e that their city h a d t a k e n on the task of resolving this particular conflict; H i e r a p y t n a a n d Itanos h a d been fighting over a territory near the sanctuary of Zeus Diktaios from 145 onwards, and Magnesian judges h a d already dealt w i t h this issue i n 140/139. B u t either because t h e judges of 112 were perhaps more conscientious t h a n others, or because they w a n t e d to be remembered for doing their job in the best possible way, they established a m o n u m e n t of their judicial work. T h i s m o n u m e n t contains not just a written record of their verdict, but also a history of the conflict and, most important, the principles on which they based their decision. T h i s document, of which t w o fragmentary copies survive i n Magnesia on the M a i a n d e r a n d in Itanos,2opens w i t h a condemnation of conflicts a n d praise of peace and concord: j u s t as circumstances often bring even the closest relatives into conflict, it is the duty of their friends to t r y their best to reconcile t h e m (lines 14-17). T h i s is the reason w h y the M a g n e s i a n s willingly accepted the task of resolving the dispute.
W h e n w e were elected as judges, we immediately went u p to the altar of A r t e m i s Leukophryene and after the slaughter of a sacri- ficial a n i m a l we took an oath upon it, i n the presence of the parties i n the dispute from the two cities and the m e n w h o h a d come w i t h them. A n d w e took our seats i n the sanctuary of A r t e m i s Leuko
phryene and heard the conflicting parties to the end, providing them (for their orations) not only the daytime, b u t also most part of the night, taking upon us every laborious toil, so that neither of
the adversaries m i g h t h a v e a n y disadvantage w i t h regard to jus- tice (ünes 26-31).
A f t e r the representatives of H i e r a p y t n a a n d Itanos h a d presented their arguments, the judges m a d e a final effort to reconcile t h e m before t a k i n g a vote for the verdict; there is h a r d l y a n y other Greek document w h i c h shows so clearly the preference of the Greeks for settlement (syllysis, dialysis) over judicial decision (dike).3 T h e e n m i t y of the two K r e t a n cities was, however, stronger t h a n the judges' good will. T h e M a g n e s i a n s were left w i t h no other choice t h a n to give a verdict, which t h e y justify i n a long document of more t h a n one h u n d r e d lines (the end is not preserved). I n this document they narrate the story of the conflict i n great detail, s u m m a r i s e the positions of the two parties, and quote older documents. T h e judges also give u s the reasoning behind their decision as well as a theoretical statement about the arguments that can be used to support a claim of ownership (kyrieia) over land:4
M e n h a v e proprietary rights over l a n d either because they h a v e received the l a n d themselves from their ancestors, or because they h a v e bought it for money, or because they h a v e won it b y the spear, or because they h a v e received it from someone of the mightier.
T h i s formulation lists four modes of acquisition: inheritance, purchase, donation, a n d conquest - the first, second a n d fourth are undisputed, traditional principles of private law; only the third, the principle of conquest, w a s subject to controversy (cf. below §4.1).
T h e subject of international arbitration h a s recently attracted m u c h scholarly attention for two reasons: first, the ubiquity of territorial disputes i n the ancient Greek world and, second, the n u m e r o u s parallels the subject offers w i t h the modern practice of international arbitration.
B u t the legal a n d cultural significance of the reasons the Greek pre- sented to j u s t i f y territorial claims h a s generally been neglected. Recent studies of the subject h a v e focussed more on collecting the evidence t h a n on analysing the principles behind the decisions rendered b y the judges involved i n arbitration.5 O n e of t h e reasons for this neglect m a y be the widespread a s s u m p t i o n t h a t the Greeks h a d not developed a conception of'international law'.6 I n fact, modern scholars rarely use the term w h e n discussing international relations i n ancient Greece.7 O n the contrary, scholars often regard the provisions and sanctions of treaties as the p r i m a r y source for the legal rules to be applied i n interstate relations.8
T h e arguments put forward to j u s t i f y territorial claims are therefore not t a k e n seriously, but regarded as mere Propaganda. For instance, Ost- w a l d dismisses appeals to the 'common laws of the Greeks' as 'pious platitudes'.9 T h e Greeks certainly lacked a written body of rules to be
applied i n disputes between poleis, that is, a set of Statutes passed b y a universally recognised legislative body a n d ratified b y individual com- munities. T h e y also lacked a n agency that w o u l d enforce such rules. B u t it is still possible to h a v e 'international law' as a set of 'rules, doctrines, and policy goals which exert a regulatory effect on international rela- tions' without written legislation as long as these n o r m s are consistently a n d regularly invoked and applied. I n an important study of interna- tional l a w i n Thucydides, G . E . Sheets h a s demonstrated t h a t the unwritten nomoi of the Greeks were fully v a h d as a source of l a w a n d just as binding as treaties.10 Sheets shows t h a t 'they could be expressed i n the form of specific rules a n d doctrines, a n d they could be invoked as the principle basis for defining issues of disagreement and resolving those issues in an authoritative w a y \ Sheets ended his study by pointing to the need to compare the data found i n Thucydides w i t h the evidence found i n other literary sources a n d i n inscriptions.
T h e a i m of this chapter is to develop the discussion begun by Sheets through a study of the justification of territorial claims in Classical and Hellenistic Greece. It focuses on the terminology used i n documents concerning territorial disputes a n d attempts to demonstrate three m a i n points. First, i n the Classical a n d Hellenistic periods the Greek cities applied a well defined and differentiated legal vocabulary w i t h regard to territorial claims. Second, the Greeks consistently used the same k i n d s of arguments to justify their claims to territory. T h e justifications presented b y the parties in these conflicts exactly correspond to the four principles listed by the M a g n e s i a n judges at the end of the Hellenistic period (i.e. to precise legal principles). T h i r d , these principles originated i n the early Classical (or late Archaic period) and are closely connected w i t h the principles applied for the resolution of property disputes a m o n g private Citizens within the city.
II. P h r a s i n g distinctions: the t e r m i n o l o g y o f o w n e r s h i p a n d possession in G r e e k 'international l a w '
I n a f u n d a m e n t a l study, A . K r ä n z l e i n demonstrated t h a t property law i n the Greek poleis m a d e a sharp distinction between ownership (Eigen- tum or l a w f u l proprietary rights) and possession (Besitz). A c l o s e exami- nation of the evidence - the epigraphic evidence in particular - reveals t h a t the s a m e distinction was consistently applied i n decisions about disputes between poleis. It goes without saying t h a t the relevant termi- nology is used consistently and w i t h precision only i n documents where differences i n wording h a d legal consequences, not i n texts that contain casual references to the possession of land. T h a t is w h y it is necessary to focus here on documents about territorial claims.
O w n e r s h i p is most commonly and unambiguously expressed by the
v e r b f a x i a n d t h e n a m e of t h e o w n e r in t h e genitive (e.g. 'A&nvauov eaxi)12
or b y a p o s s e s s i v e p r o n o u n or adjective (TIUEXEDCK; Eon, idiöq EöXI, oiKetoq)13 or (rarely) w i t h t h e n o u n nayKXiioia / Jtauraxoia.14 O t h e r words, such as £%a>, Kax£x<D, a n d KEKXTIUOI / Kxfjoa«; ('hold, possessO, Kpax&o ('control, holdO, veuouai ('hold, inhabitf), Kapjti^ouat ('exploit') u s u a l l y denote t h e possession of a territory w i t h o u t making a n y binding State- m e n t about its l a w f u l ownership.1 5 L e t u s e x a m i n e t h e u s e of t h e v e r b Kort6j£<D ('occupy, possess*), o n e of t h e words m o s t c o m m o n l y used i n s u c h a context. I n a d o c u m e n t w h i c h concerns a border d i s p u t e between A m p h i s s a a n d D e l p h o i (125 BCE) it is u s e d to express t h e factual possession of l a n d as opposed to its l a w f u l ownership;1 6 t h e text refers to plots t h a t h a d been given to t h e s a n c t u a r y of A p o l l o n b y t h e R o m a n senate; t h e proprietor w a s , therefore, t h e god (i.e. t h e sanctuary). T h e s e plots h a d been, however, occupied a n d exploited b y s o m e i n d i v i d u a l s (C lines 9f.: Kax]£xown. Cf. C, line 2 8 - D , line 4). T h e v e r b is u s e d in exactly t h e s a m e sense - i n Opposition to t h e expression Eaxi xivoq, w h i c h indicates l a w f u l o w n e r s h i p — i n t h e verdict of the M a g n e s i a n j u d g e s m e n t i o n e d above (x<bpav ... xf|v jtpoxepov UEV owjav Apaynüiav Kai xfjv Ilpaioicov, KctxexouivTiv 8E xvv üitö xtov lepaTtDxvitov).17 T h e S a m i a n repre- s e n t a t i v e s before t h e R h o d i a n court w h i c h h a d to resolve a territorial d i s p u t e b e t w e e n S a m o s a n d P r i e n e (c. 197-190 BCE)18 u s e d t h e v e r b Kocx^xeiv i n order to describe t h e P r i e n i a n occupation of l a n d t h a t t h e S a m i a n s regarded a s t h e i r o w n l a w f u l property (lines l l l - 1 3 f . ) . I n these cases, t h e context s h o w s t h a t t h i s particular v e r b alludes to a n u n l a w f u l occupation.1 9 B u t t h e s a m e verb (as well as t h e verb l%<a) c a n be used in a n e u t r a l sense, w i t h o u t m a k i n g a n y Statement about t h e l a w f u l n e s s of t h e possession, in t e x t s w h i c h s i m p l y establish a terminus a quo a s t h e b a s i s for a verdict i n a territorial d i s p u t e (cf. below pp. 193-4). I n t h e s e cases t h e question is not w h o o w n e d l a w f u l l y a territory, b u t w h o controlled it at a given t i m e . T h i s is h o w t h e verb raxExo) is used i n a d o c u m e n t concerning a conflict b e t w e e n S p a r t a a n d M e s s e n e (c. 138 BCE),20 w i t h regard to t h e question w h o occupied (not necessarily o w n e d l a w f u l l y ) t h e l a n d i n 146 BCE (lines 52-5; cf. lines 63-6 ).21 T h e v e r b KOXEXEIV is also used twice i n a decree of P r i e n e (c. 91 BCE) w i t h regard to saltworks, w h i c h w e r e at t h a t point exploited b y t h e city (lines 114f.:
6«; Kax^xei Kai Kapjtl^Exai [ö 8fiuo<;]), b u t t h e o w n e r s h i p of w h i c h w a s still to be decided i n t h e f u t u r e (lines 116-18).22
B e c a u s e w o r d s such as EXEIV, KOXEXEIV, ve(ieo9ai etc. could not express clearly t h e legal s t a t u s of a territory, one often added a h appropriate attribute to express legal o w n e r s h i p (e.g. Kvpiax;, äoyalxbq, OIKEUIX;, ßeßaiaxj, eiq xöv del xpovov, ävavxipprixoi;) or u n l a w f u l , provisory, condi- tional, or violent occupation (e.g. ßia, raxpa xö 8ucaiov).23 For e x a m p l e , E u m e n e s I u s e d a u n i q u e a n d a l m o s t r e d u n d a n t c o m b i n a t i o n of attrib- u t e s i n a letter to P i t a n e (probably a t t h e request of t h e people of P i t a n e )
to m a k e it absolutely clear t h a t a piece of l a n d w a s theirs a n d u n d e r their complete control: 'we g r a n t the u n d i s p u t a b l e (anamphisbeteton) a n d acknowledged (homologoumenen) u n l i m i t e d (pagktetiken) right of o w n e r s h i p (kyreiari) for all t i m e (eis aei chronon).'24 A f e w characteristic texts d e m o n s t r a t e both these differences a n d t h e careful a n d differenti- ated use of a legal vocabulary.
A n early a n d v e r y instructive passage is provided b y X e n o p h o n in his Education ofKyros, in a passage i n w h i c h K y r o s addresses his victorious troops after t h e conquest of B a b y l o n : 'None of y o u w h o possesses (echon) these t h i n g s (i.e. t h e conquered l a n d a n d houses) s h o u l d t h i n k t h a t h e possesses (echein) property belonging to others (allotria); for there is a n eternal l a w a m o n g t h e h u m a n s , t h a t w h e n a city is captured t h e conquerors o w n (einai ton helonton) both t h e bodies a n d t h e property of those w h o were i n t h e city.'25
Besides t h e reference to t h e right of conquest (see below §4.1), w h a t is significant in t h i s passage is t h e distinction between possession (echein) a n d l a w f u l o w n e r s h i p (estin tinos, allotria). K y r o s ' soldiers should n o t regard t h e possession of t h e conquered territory a n d goods as occupation of property belonging to others (&xsw äXXjbxpm), b u t as their l a w f u l property b y t h e right of conquest (etvai xräv iAövxöv).
A n o t h e r early, b u t u n f o r t u n a t e l y fragmentary, e x a m p l e of a clear contrast d r a w n between o w n e r s h i p a n d possession is f o u n d i n a letter sent b y e n v o y s of P h i l i p p o i to their city, reporting a decision t a k e n b y A l e x a n d e r the G r e a t concerning a l a n d d i s p u t e between their city a n d n e i g h b o u r i n g T h r a c i a n tribes (330 BCE?).26Different p h r a s e s are used to designate v a r i o u s legal categories of l a n d . T h e expression iaxi xwoc, is u s e d only w i t h regard to t h e m a r s h e s w h i c h w e r e t h e l a w f u l property of P h i l i p p o i ( B lines 12f.: zä 8ä äXr\ et[vai xräv] OIAAJIJKOV) as well a s w i t h regard to l a n d belonging to Alexander, b u t exploited b y Philippoi u n d e r t h e p a y m e n t of tribute ( A 5: [r\ oräxoO &rt]iv x&fxx). B y contrast, t h e Status of l a n d g r a n t e d b y P h i l i p to t h e T h r a c i a n s a n d to P h i l i p p o i w a s m o r e a m b i g u o u s , a n d t h e a u t h o r therefore avoids t h e clear a n d unequivocal v o c a b u l a r y of o w n e r s h i p a n d uses t h e verbs KapTtv^eoGai ('exploit'; B 4-6), ßxeiv ('possess'; B 6), a n d vtueaOat ('hold, exploit'; B 9f.), instead of, e.g., eivca 0paK©v or eivai <&IXüIJKOV. W e notice t h a t in t w o cases these verbs are followed b y a reference to t h e exact conditions of possession ('just as A l e x a n d e r decided about t h e m ' a n d 'just as P h i l i p gaveO; a s i m i l a r reference m a y h a v e stood in t h e t h i r d case a s well (e.g. 'according to t h e s a m e terms'). M o s t telling is t h e clause in B 9f.: the Citizens of P h i l i p p o i h a d t h e right to hold a n d exploit a territory (nemesthai), u n d e r t h e conditions u n d e r w h i c h Philip, t h e land's l a w f u l proprietor, h a d given it to P h i l i p p o i (kathaper edoke Philippos). T h e v e r b edoke is not used, here, to express transfer of ownership, b u t only t h e conditional transfer of property (cf. below p. 204). T h e conditions probably included t h e p a y -
m e n t of tribute as i n the case of another territory belonging to the M a c e d o n i a n k i n g (cf. A 4 - 6 :p r o s t e l o u s [ i p h o r o n ...]).27
A conflict between Nagidos a n d Arsinoe provides another charac- teristic e x a m p l e of t h e careful distinction between possession a n d ownership.2 8 T h e Nagideis give their version of the controversy i n a decree (lines 19-30):
W h e n Aetos, son of Apollonios, a Citizen of A s p e n d o s a n d of our o w n city, became a general i n K i l i k i a , he occupied a suitable site a n d founded a city b y t h e n a m e of Arsinoe, n a m e d after the king's mother. H e settled new settlers i n the place and he divided t h e land, which was ours (hemetera[ri\)), expelling the barbarians w h o h a d been inhabiting it (tous epinemomenous). A n d now his son Thraseas, w h o h a s been sent b y the king as a general i n K i l i k i a , shows great zeal i n his efforts to m a k e the city more glorious, a n d he h a s asked us to give u p the public l a n d (ten choran ten de- mosian, sc. our public land) to the inhabitants, so t h a t they m a y possess it (ech[ein]) for all time, they and their descendants.
A l t h o u g h this text does not refer directly to a dispute, w e k n o w for sure t h a t the decree of Nagidos w a s preceded b y a long-lasting conflict between this city a n d the new foundation. T h i s conflict is explicitly mentioned i n a letter of T h r a s e a s to Arsinoe (lines 4-6): 'Since now the Nagideis h a v e followed our request and h a v e m a r k e d out (the land) so t h a t it m a y be yours (hymeteran einai) without a n y r e m a i n i n g contro- v e r s y ...;' similarly, the decree of Nagidos forbids a n y further dispute on this matter (lines 40-5). T h u s , the story can be plausibly reconstructed as follows: the Nagideis h a d lost control over the disputed land because of the raids of barbarians; they h a d not lost, however, its l a w f u l owner- ship. T h e y regarded this l a n d as their property, even after Aetos h a d expelled t h e b a r b a r i a n s a n d h a d founded Arsinoe there (cf. below p. 199). For this reason they insisted upon t h e fact that they, the l a w f u l owners - not Aetos or T h r a s e a s - gave their l a n d to Arsinoe. It w a s only after this rather theatrical, but legally necessary act that the l a n d became the property of the Arsinoeis.
W e see t h a t the terminology of the documents that concern territorial conflicts i n Classical a n d Hellenistic Greece reveals a n a w a r e n e s s of i m p o r t a n t legal distinctions a n d the difference b e t w e e n possession a n d o w n e r s h i p as w e l l as b e t w e e n conditional possession a n d violent a n d u n l a w f u l occupation. W i t h these distinctions i n m i n d , w e c a n better u n d e r s t a n d t h e legal a r g u m e n t s a d v a n c e d i n m a n y territorial disputes.
3. A f e w things j u d g e s w a n t t o k n o w , a f e w things a d v e r s a r i e s w a n t t o teil
A s w e h a v e seen, the Magnesian judges of 112 BCE recognised the existence of four w a y s of acquiring ownership: conquest, inheritance, purchase, and gift (see p. 186). C o m m o n sense teils u s that these m e a n s of acquiring property are m u t u a l l y exclusive. A n argument such as 'I o w n this ring because I inherited it, and b y the w a y I also bought it from m y cousin' strikes u s as very odd. If w e expect from the Greek c o m m u - nities to h a v e very clear, unambiguous views about t h e origin of their claim on a territory, w e will be easily deceived i n our expectations. A s a result of wars, civil conflicts, foreign raids, or royal interventions, territories changed h a n d s very often i n the course of the turbulent history of the Greek world. These factors, combined w i t h the various methods of proving ownership, gave rise to the complex disputes t h a t confronted Greek arbitrators a n d judges, and, from the second Century BCE onwards, the R o m a n Senate. To a w a r d ownership to one of the parties i n a dispute, the judges h a d in theory to determine the historical m o m e n t t h a t could be considered the foundation of a legitimate claim:
is the decisive m o m e n t the initial possession of the territory, the last l a w f u l transaction, or the m o m e n t of a m a j o r diplomatic event? T h e s e three w a y s of defining the question are m u t u a l l y exclusive. 'One party is the l a w f u l owner of the l a n d because this party conquered it during the return of the Herakleidai, but also because they bought it forty years ago' also seems stränge to us. Yet, in reality things are never as simple as that despite the very clear Instructions given b y the R o m a n Senate to Greek judges in international conflicts. A s w e are going to see, the use of multiple arguments is a very common phenomenon in Greek interna- tional arbitration.
A territorial dispute is the confrontation of two wishes: the w i s h of the adversary that holds a territory to retain possession a n d to h a v e his ownership recognised a n d the w i s h of another party to take possession a n d gain ownership. T h e current occupant m u s t explain how he came to possess the territory i n a lawful manner; the adversary h a s to present his request as the termination of an u n l a w f u l State a n d as a return to an earlier, lawful Situation. T h i n g s usually do not end here. If the plaintiff can provide some early evidence, then the defendant will try to prove either that the plaintiff's allegations are unfounded or that his ownership and possession dates to an even earlier period. Territorial Claims t h u s inevitably t u r n to questions of origins a n d chronology. T h e conflict between A t h e n s and Philip I I over A m p h i p o l i s provides a n interesting example.29 T h e corpus of the Demosthenic orations contains a letter, allegedly written by Philip, which presents the position of the M a k e d o n i a n king; the letter is probably not authentic, but it still reflects
t h e ideas of the t i m e (and possibly the M a k e d o n i a n arguments). P h i l i p explains i n this letter t h a t three principles j u s t i f y his claim: inheritance, conquest, a n d concession on the basis of a treaty:
For if (Amphipolis) belongs to those w h o h a v e t a k e n control of it originally, t h e n w h o can say t h a t I do not possess it justly, since Alexander, m y ancestor, occupied t h a t place first? ... B u t even if someone should dispute this a n d demands t h a t it should belong to those w h o became its sovereign owners later, then I h a v e this right as well. For I defeated after siege those w h o h a d expelled you a n d h a d been settled there b y the L a k e d a i m o n i a n s , and captured t h e fort. Indeed, all of u s inhabit our cities either because our ancestors h a v e h a n d e d t h e m over to u s or because w e h a v e become their sovereign owners i n w a r .... W h a t other possession can be more secure t h a n the possession (of Amphipolis), which w a s originally (ex arches) occupied b y our ancestors, a n d became again ours i n war, a n d thirdly w a s conceded (to us) b y you, w h o h a v e the habit of disputing even t h e cities which h a v e nothing to do w i t h you?30
A l t h o u g h the letter is probably not authentic, Philip's arguments find close parallels i n the argument used b y the A t h e n i a n s i n the s a m e dispute as well as in arguments k n o w n from later documentary sources.
T h e letter contains three different k i n d s of justification: original occu- pation, conquest in war, a n d recognition b y treaty. A recently published Hellenistic inscription h a s a similar combination of justifications: K i n g E u m e n e s I I explains i n a letter to Tyriaion t h a t he w a s given Seleukid territory i n A s i a M i n o r after the peace of A p a m e i a b y its legitimate owners, the Romans, 'who have acquired control by war and by treaties'.31
I n 'Philip's Letter' the grounds for the king's case are divided into 'original' (ex arches I protou) a n d l a t e r ' (hysteron) Claims. Aeschines (2.31-3) also separates earlier and later claims w h e n he argues that Amphipolis belongs to the Athenians: Aeschines begins with the original occupation of the site (2.31: tes ex arches kteseos), then reminds the king that the Athenian rights were recognised by a peace treaty (2.32),32 and finally attempts to invali- date Philip's right of conquest (2.33; see below p. 198).
Aeschines' mention of the original Status of A m p h i p o l i s is not a rhetorical device, but t h e sort of argument one expected a n ambassador to m a k e i n such a Situation. A r g u m e n t s based on the initial occupation of territory i n similar contexts i n the epigraphic evidence show t h a t w e are dealing w i t h a central issue i n legal disputes over territories. T h e best documented case is the dispute between the S a m i a n s and the Prienians over Batinetis (cf. n. 18), which is described i n a letter sent b y K i n g Lysimachos to t h e Samians: 'The Prienians tried to demonstrate the initial (ex arches) possession of Batinetis w i t h the help of historical
works a n d other testimonies a n d documents' and 'they asked u s to give t h e m back the land on the basis of its initial possession'.33 A l t h o u g h the disputed territory h a d changed h a n d s several times, the Prienians based their claim on the initial ownership of the land, using exactly the s a m e expression as Aeschines. T h e S a m i a n s responded w i t h a similar a r g u m e n t and pointed to the fact that t h e y h a d inherited the territory from their forefathers.34 Several other inscriptions refer to requests to re-establish the 'original' (ex arches) Status of the territory.35
T h e problems inherent i n this principle become clear i n the contro- versy over A m p h i p o l i s : w h e n P h i l i p I I claimed t h a t the area h a d belonged to the M a k e d o n i a n s i n a n early period (under king A l e x a n d e r I), the A t h e n i a n s replied b y recounting their own legend: Theseus' son A k a m a s h a d received this l a n d as a dowry. T h i s argument i n t u r n prompted the M a k e d o n i a n s to refer to still another legend: A m p h i p o l i s belonged originally to the Herakleidai.3 6 S o m e parties m i g h t go so far as to invent a historical narrative: the R h o d i a n judges w h o decided the conflict between Samos and Priene discovered that the history of M a i a n - drios cited by the S a m i a n s w a s not one of the author's authentic works.
T h e R o m a n s were not particularly eager to be confronted w i t h this type of argument,3 7 a n d established an entirely different principle: w h a t judges should try to determine was not the original status of the
territory, but who occupied it at a given m o m e n t of time.38 T h i s principle is not u n k n o w n i n the earlier history of Greek interstate relations: as early as 380, Isocrates recommended this principle as one of the w a y s to establish peace.39 T h e earliest k n o w n dispute where this principle w a s applied is the conflict between Magnesia on the M a i a n d e r and Priene (c.
175-160 BCE). T h e Senate declared that the land should belong to whoever held it at the m o m e n t w h e n Magnesia and Priene became allies of the Romans.4 0 Melitaia and N a r t h a k i o n also appealed to the s a m e principle i n another territorial dispute (c. 140).41 T h e representatives of Melitaia claimed that the disputed public land a n d a n abandoned fortress were their property w h e n they concluded their treaty w i t h R o m e (lines 19-22); they also requested the R o m a n s to confirm the validity of three earlier (favourable) verdicts. B u t the representatives of N a r t h a k i o n claimed also that the disputed land belonged to t h e m w h e n they became amici (friends) of the R o m a n s ; they were also able to present a verdict that favoured them. T h e arguments are m u t u a l l y exclusive, but there m a y be a plausible explanation: Melitaia a n d N a r t h a k i o n m u s t h a v e become amici at different dates (Melitaia first, N a r t h a k i o n later). T h e land m u s t h a v e changed h a n d s exactly during the period in question, i.e. during the Second M a k e d o n i a n War.42 T h e Solution adopted b y the R o m a n s w a s to determine an earlier historical m o m e n t of decisive importance - the establishment of the T h e s s a l i a n League b y F l a m i n i n u s - and to confirm the verdict given at that t i m e
(lines 63-5). V a r i a n t s of the s a m e principle were applied i n other con- flicts, i n w h i c h the decisive terminus a quo w a s the first involvement of t h e R o m a n s w i t h the issue i n question.43 T h e Senate occasionally devi- ated from this rule, as i n the case of the conflict between Priene a n d S a m o s (135 BCE) w h e n the Senate decided not to confirm a decision b y M a n l i u s V u l s o in 188, b u t a n earlier verdict given b y R h o d i a n judges.44
N o m a t t e r h o w the issue that the judges h a d to resolve w a s formu- lated, the contestants w o u l d not only present evidence relevant to this issue, but t h e y would a t t e m p t to influence the judges w i t h a n impressive variety of arguments. These arguments are often s u m m a r i s e d b y the judges i n their verdicts, a n d there are a few examples of testimony given b y witnesses.4 5 O n e of t h e questions that seem to h a v e been relevant for t h e verdict w a s w h e t h e r or not the lawful owner exercised the rights of ownership.4 6 Two of t h e foreign witnesses presented b y K o n d a i a testi- fied t h a t t h e city w a s i n fact exploiting the disputed l a n d b y extracting a transit toll (line 17f.: paragogion), cultivating it (line 27-8.: georgoun- tas ... kai nemomenous), and h a v i n g a keletra (line 35f; the m e a n i n g of the word keletra is not clear). O t h e r advocates presented evidence for transactions that h a d t a k e n place, i n or w i t h regard to, the disputed territory without giving rise to protests from their adversary; this could be t a k e n as a tacit recognition of territorial claims.47 T h e duration of the occupation a n d exploitation of t h e disputed territory is v e r y often legally irrelevant, but it w a s still a point t h a t the parties liked to m a k e to the judges. T h i s is w h y w e often find references to the ancestral rights or to t h e possession of l a n d for m a n y generations.48 W h e n Lysimachos almost apologises to the S a m i a n s for listening to the arguments of their adver- saries from Priene (cf. pp. 192-3), it is because he w a s not aware t h a t t h e S a m i a n s h a d held t h e disputed territory for so long: 'if w e h a d k n o w n t h a t y o u h a d h a d this l a n d i n possession (echein) and use (nemeiri) for so m a n y years, w e should never h a v e undertaken to hear the case.'49
O f course, the most i m p o r t a n t argument i n a territorial conflict w o u l d a l w a y s be the proof t h a t t h e territory i n question h a d been acquired b y a Community i n one of the four w a y s specified b y the M a g n e s i a n judges (see p. 186) a n d h a d henceforth remained i n its possession. It is these four legitimate m e a n s of acquisition of territory that w e will n o w examine, focusing i n particular on some factors that could limit the application of these principles.
4. A c q u i s i t i o n o f t e r r i t o r y in i n t e r n a t i o n a l l a w 4.1. Conquest
W h e n the M a g n e s i a n judges explained that one of the m e a n s by w h i c h c o m m u n i t i e s acquire l a n d is victory in w a r (dorati kratesantes), this
would not h a v e come as a surprise to the K r e t a n s w h o heard their verdict. T h e Hellenistic period h a d seen more wars of conquest on K r e t e t h a n a n y earlier period i n the history of the island.50 Nor would most of the Greeks, perhaps w i t h the exception of some philosophers, h a v e been shocked b y such a statement. T h e national legends of every Greek Community - at least those w h o did not claim to be autochthonous - contained a successful act of violence that h a d established its ownership of its territory.
B u t there is no need to look to the m y t h s for the right of war.
According to Aristotle the art of w a r is one of the skills b y which m e n acquire t h e ownership of goods.61 T h i s practice w a s recognised as cus- t o m a r y l a w (nomos). A n important passage in Thucydides is quite revealing. A f t e r their defeat at Delion (424 BCE) the A t h e n i a n troops occupied the sanctuary of Apollon, which w a s i n Boiotian territory.
W h e n the T h e b a n s sent a herald to protest against their action, the A t h e n i a n s responded as follows: 'The Greeks h a v e a l a w (nomos) that whoever h a s under his power (kratos) a piece of land, whether big or small, also owns (gignesthai tinos) the sanctuaries, m a n a g i n g t h e m i n the same m a n n e r as before to the best of his ability. For the Boiotians, as well as most other men, h a v e used violence to expel another group of people a n d now hold (nemontai) their land, h a v i n g as their own (oikeia kektesthai) those sanctuaries, which belonged to others (allotriois) w h e n they first c a m e upon them.'52 T h e argument presented b y the A t h e n i a n s (as presented b y Thucydides) deserves comment. T h e A t h e n i a n s observe t h a t most of the other Greeks h a v e seized l a n d that used to belong to others, implicitly drawing attention to their own autochthony. A f t e r the violent expulsion of the previous owners (bia nemontai), the conquerors acquired the land (and its sanctuaries) as their own (oikeia kektesthai).
T h e foreign object of conquest h a d become their property, on which they exercised control (cf. kratos). T h i s principle was in accord w i t h the customary law of the Greeks.
T h e acquisition of ownership through the right of conquest is also found as a principle of international l a w in Xenophon's Education of Kyros (see note 25): 'there is an eternal l a w (nomos) a m o n g the h u m a n s , t h a t w h e n a city is captured the conquerors own (einai ton helonton) both the persons and the property (chremata) of those w h o were in the city.' L i k e Thucydides, X e n o p h o n presents the right of conquest as a law;
since the context is a Persian one, he does not speak of a Greek law, but of a law t h a t applies to all h u m a n beings. I n this respect, the passage reminds u s of the formulation used by the M a g n e s i a n judges ([an]thro- poi tas kata ton topon echousi kyrieias). T h e more general formulation
w a s necessary i n this case because the verdict w a s requested not just by two Greek communities, but b y the R o m a n Senate. W e find the s a m e idea i n the letter attributed to P h i l i p concerning his claims on A m p h i p o -
Iis (cf. p. 192): 'all of u s inhabit our cities either because our ancestors h a v e h a n d e d t h e m over to u s or because w e h a v e acquired control of t h e m (kyrioi) i n war.'
There is more evidence for t h e right established b y conquest a n d w a r i n the Hellenistic period, but it does not alter the picture described in the earlier sources.5 3One of the m o s t interesting cases is the arbitration of P e r g a m o n i n a dispute between Mytilene a n d Pitane.5 4 T h e P i t a n i a n s had bought the disputed land from Antiochos I, the successor of Seleukos I, who in his t u m had acquired it after the victory over Lysimachos (line 132: [...machei epi\kratesantos). T h e m a n y documents quoted i n the verdict of the P e r g a m e n e arbitrators (lines 133-44) leave no doubt t h a t the question they h a d asked w a s whether this transaction w a s l a w f u l or not (cf. ü n e s 149f.), i.e. whether P i t a n e h a d bought the land from its l a w f u l owner (cf. below p. 203). A l t h o u g h this is not stated explicitly i n the f r a g m e n t a r y inscription, it seems certain that the question w a s whether Seleukos' victory at Kouropedion m a d e h i m a n d his successor l a w f u l owners of the l a n d a n d therefore gave t h e m the right to seil it.5B
T h i s right w a s recognised b y the Pergamene judges because it h a d been confirmed b y Philetairos a n d E u m e n e s I.
T h e s a m e question arose i n the negotiations between E u m e n e s I I a n d Tyriaion sometime after 186.56 T h e inhabitants of Tyriaion seem to h a v e received t h e Status of a polis under the Seleukids, a grant that E u m e n e s regarded as invalid because the Seleukids were not the l a w f u l owners of the territory (lines 22-3: hypo ton me kyrieuonton). I n a dramatic gesture, h e m a d e Tyriaion a polis, b u t also stressed t h a t he w a s the one w h o h a d the right to m a k e the grant since h e w a s the lawful owner of the territory (ünes 20-1: ektemenou kyr[i]os). T h e claim w a s founded on the fact t h a t h e h a d received it from the R o m a n s , w h o h a d w o n (epi- kratesanton) it both i n w a r (polemoi) and through treaties (synthekais) (lines 21-2).56
T h e principle t h a t t h e violent conquest of foreign l a n d establishes a legitimate ownership is therefore neither a literary fiction nor a n arbi- trary claim m a d e by t h e M a g n e s i a n judges. O n e m a y find a n analogous idea i n private law, w h i c h also recognised violent forms of acquisition of property (war booty, booty of pillage).57 T h e origins of this idea cannot be determined w i t h certainty, but it is certainly older t h a n the Sophistic idea that might m a k e s right. T h e reason w h y the principle occurs i n both private and international l a w is possibly not m u t u a l influence, but c o m m o n origins, which are probably connected w i t h idea t h a t success i n a violent activity (war, piracy, raid) cannot be achieved without the support of the gods a n d m a y be viewed as the p u n i s h m e n t of the defeated party. T h e m o s t instructive example of a defeat i n w a r seen as p u n i s h m e n t for u n j u s t b e h a v i o u r is that of A t h e n s ' defeat i n t h e Peloponnesian War. A s X e n o p h o n explains (Hell. 2.2.10), the A t h e n i a n s
believed they suffered not for the p u n i s h m e n t (timoroumenoi) they inflicted on others, but for the injustices t h e y committed through their o w n arrogance (dia hybrin edikoun).
D i v i n e support for acts of piracy is implicitly recognised in the custom of dedicating a tithe of the booty to the gods - a thanksgiving dedication corresponding to the idea of do ut des.58 T h e earliest piece of evidence for this idea is the archaic inscription of A i a k e s of S a m o s (c. 500) w h o dedicated to Hera part of the booty won during sea raids.59 A n interest- ing appeal to this principle is found i n the arguments made b y the S a m i a n s i n a conflict w i t h Priene over the fort K a r i o n and the region called Dryoussa.6 0 T h e i r claim o n these areas w a s based on the right of conquest, after the destruction of the K a r i a n city of Melie a n d the division of its land, a n d it w a s confirmed through the 'verdict of their victory inikas krisin)' i n a battle against the Prienians (lines 105-6).61
T h i s principle does not seem, however, to h a v e been u n a n i m o u s l y accepted without qualification. A careful reading of two passages of Isocrates (who m a k e s the s a m e distinction between possession a n d ownership w e h a v e already encountered) shows that the orator did not t h i n k t h a t conquest a l w a y s establishes a legitimate claim. I n his Panathenaic Oration h e implies that the conquest of the Peloponnese b y the D o r i a n s w a s ülegitimate: 'They divided the cities and the territories which t h e y took from their l a w f u l owners (tous dikaios kektemenous).'82
I n his oration On the Peace (17) he refers to powers that possess
(katechontori) the cities of others b y violence (biai); this phrase gives one the impression that the defeated party r e m a i n s the legitimate owner.
Yet i n other places Isocrates regards violent conquest as a legitimate m e a n s of acquiring ownership.6 3 O n e m i g h t explain these apparent contradictions in Isocrates' views as resulting from the different con- texts i n which he expresses t h e m or to his moralising tendencies. O n e can trace the s a m e moralising ideas in Aristotle's treatment of slavery, and particularly enslavement i n war. Aristotle (Pol. 1 2 5 5 a l l - 2 5 ) reports the variety of opinions about the subject, then says t h a t some thinkers regard slavery as a result of w a r as just. T h e n follows a n objection to this view: a w a r m a y be unjust.6 4
B u t there is probably more i n Isocrates' views t h a n just philosophical preferences. T h e different attitudes were noticed b y E. B i c k e r m a n n a n d J . Sykoutris, w h o h a v e emphasised the importance of the motivation for the violence that leads to pössession. Conquest i n general does not create the right of ownership, but only violence undertaken as a result of provocation or as vengeance for injustice.65 A l t h o u g h the M a g n e s i a n judges, Thucydides or Xenophon did not m a k e such a distinction, the legitimacy of the act of violence appears to h a v e played a key role. T h e very fact that the Greeks, both i n legend a n d in historical documents, tried to present just causes is clearly related to this principle.66 O n e can
find further evidence for the principle i n Demosthenes' Against Ktesi- phon, w h e r e the orator denounces Philip's aggression: 'he takes a w a y cities that do not belong to him; he h a s even wem by the spear some of the cities of the A t h e n i a n s , without having first suffered injustice at the h a n d s of t h e A t h e n i a n people.'67 T h e orator is not criticising conquest in general, but unjustified, unprovoked conquest. T h e importance of this distinetion can be seen i n a document of an entirely different nature, a curse tablet deposited i n a grave i n Oropos. A n a n o n y m o u s m a n curses a series of persons and places all his hopes in the gods of the underworld w h o will respond to h i s request and p u n i s h h i s opponents precisely because he h a d been wronged without h a v i n g wronged t h e m first.68 T h i s i d e a persisted u n t i l t h e l a t e H e l l e n i s t i c period. W h e n envoys of H i e r a p y t n a appeared before the R o m a n Senate to defend their claims over a disputed territory, they m a d e sure to mention the fact that they h a d not attacked or wronged their adversary, Itanos.69
T h e specific circumstances of the conquest might also affect the legitimaey of ownership through victory i n war. T h e case of A m p h i p o l i s is revealing. Aeschines claimed t h a t a treaty that A m y n t a s h a d sworn a w a r d e d t h e city to the A t h e n i a n s ; however, the resistance of the A m p h i p o l i t a n s prevented the A t h e n i a n s from t a k i n g control of the city.
I n 360 Perdikkas, Philip's brother, conquered Amphipolis, but after his death (359) Philip relinquished control over t h e city to avoid challenging A t h e n i a n claims. B u t t h e city m a n a g e d to retain its autonomy until P h i l i p reconquered it i n 357. W e h a v e already examined Philip's claims to the city. Aeschines replied to Philip's claims w i t h a n argument t h a t w a s more t h a n just a technicality:
If y o u argue that y o u reasonably possess A m p h i p o l i s b y h a v i n g t a k e n it i n war, if y o u h a d won t h e city with spear fighting against us, then y o u would be the sovereign owner (kyrios echeis), h a v i n g acquired it aecording to the law of war. B u t if you h a v e t a k e n the city belonging to A t h e n i a n s from the A m p h i p o l i t a n s , then you do not possess their property, but the territory of the Athenians.7 0
Aeschines did not challenge Philip's right of conquest, w h i c h he a d m i t s w a s consistent w i t h 'the l a w of war'; h e does not even ask whether Philip h a d fought a just w a r against A m p h i p o l i s or not. W h a t u n d e r m i n e d Philip's claim on the city w a s the fact that Philip had t a k e n A m p h i p o l i s not from its l a w f u l owners (the A t h e n i a n s ) , but from the A m p h i p o l i t a n s . T h a t this w a s not a technicality or a rhetorical device of Aeschines can be inferred from a similar Situation with regard to Philip's claims on Halonnesos,7 1 which h a d previously belonged to the A t h e n i a n s . W h e n P h i l i p took the island defeating the pirates w h o h a d occupied it, this did not affect the A t h e n i a n claim on the island. For this reason Demos-
thenes insisted that Philip should not 'give', but 'return' the island to the A t h e n i a n s (7.5; 12.14; cf. Aeschin. 3.83). G i v i n g is the right of the lawful owner, a n d Philip w a s not the rightful owner. T h i s play on words, which the comic poets ridiculed,72 h a d important legal implications. Isocrates uses the s a m e type of argument to legitimise the D o r i a n occupation of Messene. Messene w a s deposited for safekeeping (parakatatheke) i n the h a n d s of Nestor but did not belong to him; the legitimate owners were the Herakleidai.7 3
T h e documentary sources contain more examples of this k i n d of argument. W e h a v e already seen (p. 190) that Nagidos regarded a territory as its lawful property although it h a d been occupied b y barbari- ans. W h e n a Ptolemaic general expelled these barbarians, occupied the land, a n d founded a n e w city there, the Nagideis still regarded this l a n d as their o w n public l a n d (lines 22-3, 26). F r o m their point of view, they h a d never lost ownership, despite these changes, presumably because they had not lost this land after a defeat i n a just war. T h e dispute between S a m o s and Priene over a strip of l a n d north of M y k a l e called Batinetis is very similar (see n. 18). W h e n k i n g Lysimachos w a s asked to arbitrate in 283/2, the disputed territory w a s in the possession of the S a m i a n s , but the Prienians claimed that it h a d orginally belonged to them. T h e y temporarily lost it i n the seventh Century BCE, during the K i m m e r i a n invasion under Lygdamis, but after a period of three years the l a n d w a s 'returned' to them. It is crucial to observe here the e m p h a - sis the Prienians place on the word 'return' (apodidonai).1* According to the Prienians, there were no S a m i a n Citizens there at that point, except for a few S a m i a n lessees of Prienian land; the S a m i a n s brought the land under their control later. T h e S a m i a n s h a d a different story to teil, but they relied on the same principle: the violent, temporary occupation by the K i m m e r i a n s h a d not terminated their ownership. T h e y admitted t h a t t h e y h a d left t h i s l a n d after the K i m m e r i a n i n v a s i o n , b u t the i n t e r r u p t i o n of their control over the l a n d did not i n v a l i d a t e their claim. U n f o r t u n a t e l y t h e stone b r e a k s off at this point so w e do not k n o w t h e rest of t h e i r a r g u m e n t s . I n t h e m i s s i n g portion of the inscription t h e S a m i a n s m a y h a v e claimed either t h a t t h e y r e t u r n e d to the l a n d after t h e K i m m e r i a n s h a d left or t h a t t h e y r e m a i n e d its l a w f u l o w n e r s despite the grant of this territory b y L y g d a m i s to t h e P r i e n i a n s alone.75
Not every military victory established legal claims. T h e reasons for the w a r (unprovoked, unjust) a n d the actual circumstances of the con- q u e s t m i g h t l i m i t t h e application of t h i s principle. S o m e v a g u e references to an u n j u s t or u n l a w f u l occupation m a y in fact be connected w i t h such arguments.7 6
3.2. Inheritance
T h e acquisitum of l a n d b y inheritance is a n argument that we h a v e already seen listed n e x t to conquest in the verdict of the M a g n e s i a n judges. Inheritance is also found i n the letter allegedly written by P h i l i p w i t h regard to his claims on A m p h i p o h s : 'All of u s inhabit our cities either because our ancestors h a v e handed t h e m over to u s or because w e h a v e become their sovereign owners in w a r ' (cf. p. 192). U n l i k e the right of conquest, inheritance is a well k n o w n part of property l a w a n d seems to require no comment.7 7 B u t the right of inheritance i n interna- tional disputes h a s some i m p o r t a n t ideological implications, in particu- l a r i n regard to the m e a n s b y w h i c h the various parties prove they h a v e acquired property b y inheritance, i.e. the use of history as a n argument.
Ancestral rights p l a y a k e y role i n the earliest attested references to territorial conflicts. T h e cult of the ancestors is directly connected w i t h this phenomenon, since the presence of their graves i n a disputed territory w a s often used to prove long-standing claims to land. O n e of t h e earliest traditions about interstate arbitration, a decision of k i n g P a u s a n i a s in a conflict between A t h e n s a n d Delos, reveals how m u c h weight this argument might carry. P a u s a n i a s is reported to h a v e as- signed the island to the A t h e n i a n s because the Delians were unable to point to a n y graves on the island where their ancestors were buried.78
O f course, this story m a y be just a joke: how could the D e l i a n s possibly identify the graves of their ancestors, since all graves h a d to be removed f r o m the island twice, i n the sixth and again i n the fifth Century BCE?
Yet, we find a similar tradition i n connection w i t h the A t h e n i a n claims to Salamis. Solon is said to h a v e demonstrated that the burials on S a l a m i s corresponded to the A t h e n i a n and not the M e g a r i a n customs - t h e first case of a State exploiting 'archaeological' finds for political purposes.79
There w a s a major difference between private property law a n d the practice i n international arbitration. In private property l a w only direct inheritance establishes proprietary rights, whereas i n Greek diplomatic history the appeal to ancestral rights appears only w h e n one of the parties could not establish a continuous a n d u n b r o k e n line of inheri- tance. W e h a v e already seen t h a t a Community could raise a claim t h a t w a s based on the rights of the ancestors even if these rights h a d not been exercised for a long period of time.80 A s a result, historical traditions became one of the most important means of justifying claims to a territory. T h e trouble w a s that if one side presented a historical argu- m e n t , the other side might retort b y presenting another historical a r g u m e n t that contradicted their opponents' argument. Historical argu- m e n t s figured prominently in the conflict between A t h e n s and P h i l i p I I of M a k e d o n i a over A m p h i p o l i s . Both parties h a d legal arguments on
their side. T h e A t h e n i a n s could provide documents (various peace-trea- ties and letters of Philip); Philip, on the other h a n d , appealed to the generally accepted right of conquest. A n d yet, although both parties i n the conflict h a d legal arguments, they buttressed their Claims w i t h historical arguments. I n this context Aeschines uses the word fp\unxz (2.31); it w a s appropriate to r e m i n d Philip of the m y t h that A k a m a s , Theseus' son, h a d acquired this territory i n legendary times as the dowry of h i s wife. Not to be outdone, Philip hired the historian A n t i p a t e r of Magnesia, w h o provided the necessary mythological and historical arguments: A m p h i p o l i s belonged originally to the Herakleidai, Philip's ancestors. A f t e r the Persian W a r s K i n g A l e x a n d r a s I h a d ruled over this land, as a golden statue i n Delphoi d e m o n s t r a t e d - a g a i n a n archaeologi- cal argument.8 1 T h e object of the dispute w a s shifted b y both parties to the first occupation of the l a n d (ex arches ktesis - see above p. 192).82
I n such cases the legal issue might become the object of historical research. Historiographical w o r k s were used, old poems recited, oracles a n d documents quoted and forged.83 W h e n rendering their decision, the judges often h a d to choose w h i c h historical tradition t h e y regarded as the most trustworthy. A better k n o w n a n d more characteristic case is provided b y the latest stage i n the conflict between Priene and S a m o s over territories on the coast of A s i a Minor, the fortress K a r i o n a n d neighbouring Dryoussa (c. 197-190 BCE).84 T h e S a m i a n s (who lost the case i n this bout) cited the work of Maiandrios, a Milesian historian of the fourth Century, w h o stated the disputed territory belonged to S a m o s since the end of the 'Meliac W a r ' i n the eighth Century. T h e y also cited the works of the S a m i a n historians Euagon, Ouliades, Olympichos, and Douris. O n their side the Prienians h a d the testimony of the historians Theopompos of Chios, Kreophylos, and E u a l k e s of Samos. These histori- cal w o r k s supplemented m a n y documents brought forward b y the parties. W h a t is even more interesting is the w a y the R h o d i a n judges, w h o h a d to decide this case, treated the evidence. T h e y compared the cufferent versions of the story of the Meliac W a r a n d found out t h a t only the 'Histories' attributed to Maiandrios of Miletos reported that the S a m i a n s were allotted the disputed areas of K a r i o n a n d D r y o u s s a after the war. O n the other hand, most of the other historians disagreed w i t h this version and argued t h a t this work w a s not a genuine work of Maiandrios. Not only did the R h o d i a n judges w o r k like modern histori- ans, critically e x a m i n i n g the historiographical material presented to t h e m , b u t they also founded their verdict on a historical tradition.
T h e case of A m p h i p o l i s reveals the problems involved in such histori- cal arguments. W h e n Philip dated the initial occupation of this area under the rule of k i n g Alexandras I, the A t h e n i a n s responded w i t h a n even earlier claim. Philip then pointed to a n even earlier legend. G i v e n the Greeks' inventiveness w i t h regard to m y t h s , this competition could
h a v e easily been continued ad infmitum.8 5 It is not easy to choose a m o n g historical accounts, a n d the oldest claims are not necessarily the most reliable. T h i s w a s obvious to the contemporary Greeks. It is interesting, e.g., to observe how Aeschines in his s u m m a r y of the speech that he gave to Philip skips the historical arguments to come to the recent, legal foundations of the A t h e n i a n claims (2.31). T h i s combination of historical a n d legal a r g u m e n t s underlines even more the prominent position of the historical traditions i n the justification of territorial claims. E v e n w h e n a city h a d a legal argument, it w a s nevertheless expected to add argu- m e n t s from history.
T h e tantalising questions are of course, w h y such historical argu- m e n t s were indispensable and h o w effective they m i g h t really h a v e been. T h e s e two questions cannot be discussed independently. A first i m p o r t a n t factor should be seen i n the nature of Greek international arbitration; the decisions were not t a k e n b y 'professional'jurists, but b y elected judges w h o represented their c i t / s assembly. T h e advocates h a d to deal w i t h a very heterogeneous group of people. Different arguments w o u l d appeal to different individuals; i n a procedure i n which orality played a m a j o r part, a r g u m e n t s closely connected w i t h religion a n d morality h a d good chances to prevail. Another, perhaps more important, reason for the use of historical arguments, should be seen i n the fact t h a t for the Greeks, i n general - in constitutional history a n d i n the legal relations between states — the present acquired to a large extent its legitimacy from the past. W e can best see the power of historical
a r g u m e n t s i n the cases i n which they were legally irrelevant. In the case of the conflict between H i e r a p y t n a and Itanos, the M a g n e s i a n judges i n 140 a n d 112 BCE h a d to answer a very clear question: w h o possessed t h e disputed territory i m m e d i a t e l y before the beginning of a w a r in 140?
T h i s did not prevent the representatives of both adversaries from referring to ancestral claims (see p. 193). D i d this influence the judges?
Naturally, it is impossible to teil, but I do not t h i n k it is a coincidence t h a t the judges in both verdicts do not simply state that the I t a n i a n s owned the l a n d w h e n the w a r started, but go on to underline the fact t h a t this l a n d w a s their ancestral territory ([progoinikas)116 and that t h e y were its original owners (apo arches).*7
It is this effectiveness of historical arguments t h a t m a k e s t h e m appear almost as a ritual play, a n indispensable part of diplomatic contacts. Aesop's fable about the wolf and the l a m b can be seen as a comment of a keen-sighted observer of the use of historical arguments i n territorial conflicts:
Once a wolf saw a l a m b that h a d strayed from the flock, but instead of rushing upon h i m to seize h i m by force, he tried to find a
plausible complaint by which to justify his hostility. 'Last year,
small though you were, you slandered me.' 'How could I last year?
It's not a year since I w a s born.' 'Well, then, aren't y o u cropping this field, which is mine?' 'No, for Fve not yet eaten a n y grass nor h a v e I begun to graze.' 'And haven't y o u d r u n k from the fountain t h a t is mine to drink from?' 'No, even yet m y mother's breast provides m y nourishment.' Thereupon the wolf seized the l a m b and while eat- ing h i m remarked: 'You're not going to rob the wolf of his dinner even though you find it easy to refute all m y charges.'
3.3. Sale
T h e acquisition of l a n d by a Community through purchase is not attested very often, but it is a recognised principle of interstate relations. T h e earliest i n s t a n c e attested i n literary sources is t h e effort of the P h o k a i a n s to b u y the island Oinousai from the Chians (Hdt. 1.165.1);
the Eleians bought the territory of Epeion for 30 talents in the fifth Century BCE (Xen. Hell. 3.2.30f.). In the Hellenistic period, Attalos I purchased A i g i n a from the Aitolians i n 210,88 Rhodos bought K a u n o s from the Ptolemies for 200 talents around 197,89 and P i t a n e claimed that it h a d purchased a disputed territory from K i n g Antiochos I (see p. 196).
T h e purchase of l a n d alone is, of course, not a sufficient basis for claiming ownership: the seller m u s t be the lawful owner of the sold object.90 W e h a v e already seen that this w a s the question which the P e r g a m e n e judges h a d to decide i n the case of the land which Pitane had bought from Antiochos (see p. 196). Was Antiochos the lawful owner of the l a n d h i s father h a d won by the spear or not? A nice example is provided b y the inscription which concern the restitution to the sanctu- a r y of Apollon at Delphoi of plots of sacred l a n d which were unlawfully occupied (katechein) b y some individuals.9 1 T h e last section of this
document lists these u n l a w f u l occupants w h o h a d to return the l a n d and demolish a n y buildings that might have been built on it (C 28-D 4). O n e of these occupants w a s Hagion w h o claimed (possibly truly) that he h a d bought this particular plot (D 3f.: egorakenai). Since h e h a d to give the l a n d back, h e m u s t h a v e purchased it from an earlier u n l a w f u l occupant.
T h e conditions of sale could also be legally relevant. In 400 BCE the Spartans took from the Eleians the territory of the Epeians, which they h a d bought from 'those who possessed (echonton) the city then'. Obvi- ously, the Eleians appealed to a transaction which the Spartans claimed w a s illegal. T h e y argued that a purchase that had t a k e n place under pressure (bia priamenous) w a s not in a n y w a y more just than violent deprivation (bia aphelomenous).92 Xenophon's report is very brief, but it seems plausible that the Spartans did not reject the right of conquest in general, b u t only the violent seizure of property under certain conditions such as in an u n j u s t war. T h e phrase 'those w h o possessed the city then'
is rather suspicious. I n view of the parallels mentioned above, one is tempted to t n i n k t h a t the Eleians bought Epeion not from its l a w f u l owners, but from some temporary intruders. Unfortunately we h a v e no further information on this matter.
3.4. Donation
Cases of donation of a territory are hard to find earlier t h a n the Hellenistic period. T h e case of E p i d a m n o s which w a s handed over (paredosari) b y its inhabitants to Korinthos just before the beginning of t h e Peloponnesian War, is a particular case, involving the relations between colony and mother city.93 Other references to donation (dosis) are connected to legends, such as the gift of A m p h i p o l i s to A k a m a s as a dowry (Aeschin. 2.31) or the donation of L a k e d a i m o n a n d Messene to t h e S p a r t a n s (Isocrates Archid. 18 a n d 24). A n o t h e r particular case of (not entirely voluntary) donation h a s already been discussed above (p.
190). Arsinoe gave (SI&öUX) a disputed territory (in fact h e l d b y Nagidos) to Nagidos, following a request b y the strategos of Kilikia; the grant of the l a n d m e a n t a füll a n d p e r m a n e n t transfer of lawful ownership; the conditions were regulated not b y a treaty, but b y a decree of Arsinoe (late third Century BCE).94 T h e gift of territory is regarded as one of the possible (but i n this particular case explicitly forbidden) m e a n s of acquisition i n a peace treaty between Magnesia on t h e M a i a n d e r a n d Miletos (c. 185-180 BCE).95 One-sided grants of territory are of course very c o m m o n i n the period of the R o m a n expansion, such as the f a m o u s (and controversial) donation of L y k i a to Rhodos 'as a gift' (en dorea).96
I n the documentary evidence the verb SiSooui is used to designate the transfer of property as a gift or testamentary donation.97 However, it often designates a conditional transfer of possession, a n d not the uncon- ditional change of ownership.9 8 T h e most important piece of evidence is a treaty between the K r e t a n city of Praisos a n d the dependent Commu- n i t y of Stalai.9 9 T h e t e r m s of the transaction are as follows: T h e P r a i s i a n s gave to the Stalitai the territory a n d the city a n d the islands, w h i c h they possess (gxown) now,100 a n d one half of the harbour revenues a n d of the tithe imposed on the fishing of purple and of fish, exactly as before. T h e y h a v e given all these for all time, securely a n d sovereignly, to t h e m a n d to their descendants.'101 According to the more probable interpretation of this ambiguous passage, the Praisians h a d conquered Stalai and became the owners of the land, the city, a n d the islands.
Initially, the Praisians kept the city and the land, conceding to the Stalitai only the islands. W i t h this treaty the Praisians, as the l a w f u l proprietors, give to t h e Stalitai the territory and the city. T h e n e w arrangement allowed the Stalitai unlimited possession, but did not transfer ownership. T h e transfer w a s a conditional donation (cf. epi
toisde edokan), which could be annulled if the Stalitai did not abide b y the conditions of the donation (i.e., the p a y m e n t of tribute a n d the offering of other Services). T h e p a y m e n t of tribute, in particular, shows t h a t the Praisians remained the owners of the land they donated.102
6. T h e ' c o m m o n c u s t o m o f the Greeks': b e y o n d l i t e r a r y fiction a n d closer to i n t e r n a t i o n a l l a w
W i t h the exception of the theoretical statement of the M a g n e s i a n judges (see p. 186) the documentary sources give u s no direct and explicit information about generally recognised principles, a n d w e do not find references to legal precedents.103 T h i s does not m e a n that such princi- ples did not exist. T h e declaration made b y judges t h a t they h a v e given or would give a verdict in a j u s t or the most just w a y presupposes some basic conceptions of l a w and justice.104 T h a t these conceptions are not defined a n d were not written down does not necessarily m e a n that they were vague. O n the contrary, it could easily m e a n that they were generally k n o w n and accepted.
A s this study has shown, both the literary and the epigraphic evi- dence from the fifth to the second Century reveal a high degree of uniformity both w i t h regard to the vocabulary of proprietary rights, ownership, possession, and occupation a n d w i t h regard to the argu- m e n t s presented by the adversaries in order to justify their territorial claims. T h e use of terms in the literary sources corresponds closely to the usage i n the inscriptions. Despite the existence of a very rieh vocabulary that expresses various degrees of possession (p. 188), w e h a v e observed its careful, subtle, a n d differentiated use not only w i t h i n the same document, but also i n m a n y documents from different areas a n d periods of time. Finally, w e h a v e seen that the four m e a n s of acquisition of property mentioned b y the M a g n e s i a n judges were often applied i n territorial disputes. T h e i r validity w a s not unlimited; the exaet circumstances were often legally relevant. T h e s e general rules a n d their limitations are attested in texts from different periods and areas, both i n literary sources a n d in inscriptions. For this reason it seems plausible to a s s u m e t h a t despite the absence of a n y theoretical treatise or written principles, the Greeks h a d from the Classical period (at the latest) onwards a clear coneeption of this aspect of their inter- state relations and a fixed set of principles applicable i n interstate disputes about land. These principles can a n d should be regarded as 'international law'because of the remarkably high degree of consistency i n their application a n d in the use of the relevant terminology - a
consistency that is even more remarkable considering the absence of a written body of rules. W e k n o w about conflicts that lasted for decades or even centuries, because one of the parties i n the conflict refused to
accept the verdict rendered b y the arbitrators or judges. I n such cases, however, the parties did not challenge the validity of these customary principles, but the w a y they were applied i n a particular case, the historicity of the claims, t h e veracity of their adversaries' statements, or the authenticity of documents.105 O n the other hand, I do not k n o w of a Single case where the customary principles were not applied (explicitly or implicitly) or h a d been rejected and criticised.
T h e question w h e n a n d how these principles came into being is not easy to answer. M o s t of t h e m are closely related to a n d probably
originate i n civic property l a w (especially the right of inheritance, which is attested earüer t h a n donation a n d purchase). In several cases one can observe a similarity between the arguments used i n the courts of individual poleis a n d those found i n interstate disputes.106 A n o t h e r influence seems to come from t h e practice of wärfare, for which the Greeks h a d generally recognised rules107 a n d which is n a t u r a l l y con- nected w i t h territorial disputes. Two (not necessarily trustworthy) references to early interstate agreements mention precise rules about permissible conduct i n war: the use of weapons striking from afar i n the L e l a n t i n e W a r (first h a l f of the seventh Century?)108 a n d the prohibition of cutting a city of t h e Delphic A m p h i c t y o n y off from water supplies i n the Amphictyonic O a t h (allegedly early sixth Century).109 A c o m m o n element i n both traditions is the role of a sanctuary (that of A r t e m i s i n A m a r y n t h o s a n d the Delphic sanctuary) a n d the participation of more t h a n two communities i n the agreement. E v e n if the historicity of these traditions is questionable, it is conceivable that local amphictyonies m a y h a v e contributed to the development of generally accepted princi- ples of the proper conduct i n w a r (e.g. the respect toward the sacred truce of Panhellenic competitions). It m a y not be merely coincidental t h a t the references to 'common l a w s of the Greeks' concern the right of conquest, sacred truces, and the treatment of prisoners.110 Besides the part played by sanctuaries as meeting places i n Archaic Greece a n d as places w h e r e documents concerning interstate relations (treaties, arbi- trations, m a r k i n g out boundaries) were m a d e public, another important factor for the wide diffusion of certain rules and legal conceptions w a s the greater frequency of diplomatic contacts from the late sixth Century onwards, a n d the resulting increase in bilateral a n d multilateral trea- ties, the use of already existing models for drawing u p legal documents a n d the exchange of written documents.111
O f course, i n international arbitration the judges did not t a k e deci- sions 'according to the laws' (kata tous nomous) but 'in accordance w i t h w h a t is just' (see n. 104). B u t neither this nor the absence of a written a n d ratified set of Statutes are reasons to deny the existence of interna- tional l a w i n ancient Greece. It is more important to observe t h a t a n undisputed set of principles w a s consistently applied in international
