By: Stephen C.
Neff, Reader in Law, University of Edinburgh Law School
King Charles V
of France, who reigned from 1364 to 1380, was given the sobriquet of “the
Wise.” This is partly on the basis of a massive book collection which
eventually constituted the core of the National Library of France. But in
1368, his sagacity was directed towards a real-world conundrum of international
law. He was seeking a lawful means of repudiating the Treaty of Brétigny,
which his father John II had concluded in 1360 with the English king Edward
III, and which had brought a halt to hostilities between the two countries.
The treaty had been signed in the wake of the stunning English victories at the
Battles of Crécy (1346) and Poitiers (1356), in the conflict that would
retrospectively be dubbed the Hundred Years’ War. According to the treaty,
there was to be a mutual renunciation of rights by the two rulers – with Edward
renouncing his claim to the French throne, and John correspondingly renouncing
his claim to sovereignty over the Duchy of Aquitaine. John’s renunciation
would leave Edward as the absolute sovereign of Aquitaine rather than (as
previously) as mere a fief-holder under the French crown.
Charles was
determined to resume the hostilities in order to avenge the humiliations
suffered by his country. But he needed – or at least assumed that he needed –
a credible legal basis for repudiating the Treaty of Brétigny. Two points are
of interest here. First, there appears to have been no doubt that Charles was
bound by the Treaty, even though it had been concluded by his father – i.e.,
that the Treaty effectively bound France as a state, and not just the ruler
concluding it as a person. Second, it also appears to have been taken for
granted that there was no right on the part of a treaty party to terminate an
agreement at will. That is to say, there was a clear acceptance that the rule of
law (“pacta sunt servanda”) stood above the whims of sovereigns. It was
accordingly necessary for Charles to unearth some just cause for the
repudiation that he sought. The most obvious possibility was to find a breach
of the treaty by the English.
Charles trod
carefully. He found the legal opening that he sought when the English
government began levying taxes in the Armagnac area of Aquitaine. Two local
French notables contended that the taxation was illegal, as an infringement of
their local customary rights. Charles supported these disgruntled lords. But
he took care not to rely too heavily on his own views of the case. He
dutifully set about obtaining legal opinions on the matter from eminent jurists
at the Universities of Bologna, Montpellier, Toulouse, and Orléans.
Armed with this
juridical ammunition, Charles convened a council in Paris, which duly concurred
in his support for the Armagnac lords. The king then issued a summons to the
Black Prince (Edward III’s son) in December 1368, ordering him to answer the
charges against him by May of the following year. Edward III became angry at
this action, which constituted an exercise of sovereign rights over Aquitaine
on Charles’s part, contrary to the peace arrangements. He retaliated against Charles
by resuming his claim to the French throne. On 2 May 1369, the Black Prince’s
name was solemnly called out in the Paris parlement (i.e., court) – to no
avail. A council was then held, which concluded (not surprisingly) that England
was in breach of the Treaty of Brétigny and that its unlawful conduct had
forced a resumption of hostilities onto Charles V.
International
Judicial Monitor