Interstate Arbitrations in the Greek World, 337-90 B.C. (Hellenistic Culture and Society)

506 Pages·1997·9.13 MB·English

by  Sheila L. Ager

Interstate Arbitrations In The Greek World, 337-90 B.C. http://content.cdlib.org/xtf/view?docId=ft0w1003hz&chunk.id=0&doc....
Preferred Citation: Ager, Sheila L. Interstate Arbitrations in the Greek World, 337-90
B.C.. Berkeley: University of California Press, c1996 1996.
http://ark.cdlib.org/ark:/13030/ft0w1003hz/
Interstate Arbitrations In The Greek World,
337-90 B.C.
Sheila L. Ager
UNIVERSITY OF CALIFORNIA PRESS
Berkeley · Los Angeles · Oxford
© 1997 The Regents of the University of California
Preferred Citation: Ager, Sheila L. Interstate Arbitrations in the Greek World, 337-90
B.C.. Berkeley: University of California Press, c1996 1996.
http://ark.cdlib.org/ark:/13030/ft0w1003hz/
― xiii ―
Preface
The origins of the phenomenon of third-party intervention in order to end disputes and prevent wars
between other states lie far back in ancient history. The ancient Near East provides an example of
arbitration from the Bronze Age: the delineation of the border between Umma and Lagash by Mesalim,
king of Kish (J. S. Cooper, Sources from the Ancient Near East 2.1 [Malibu, 1983]). Perhaps we should
trace the roots of Greek international arbitration to its oriental predecessors; but by the classical
period the Greeks had made arbitration an integral part of their own diplomatic life, in part because
the Greek political system was more amenable to the use of arbitration than was the "superpower"
system of the Near East. By the fifth century B.C. the Greek poleis were already attaching arbitration
clauses to their treaties, clauses that tried to provide for the pacific settlement of future disputes.
Instead of using the time-honoured method of warfare, some Greeks were apparently trying to settle
their differences through diplomacy and negotiation.
In the Hellenistic period, as diplomatic protocol in general became more and more refined,
third-party diplomacy also became more significant. From the two and a half centuries following the
battle of Chaironeia there is evidence for between 150 and 200 examples of arbitration or mediation,
as opposed to some 60 cases from the four centuries preceding Chaironeia. Luigi Piccirilli examined the
pre-338 evidence in his work Gli arbitrati interstatali greci (1973). His is the most recent exhaustive
case study of arbitration for the classical age. Earlier works, such as those of A. Raeder and M. N. Tod
from the early years of the twentieth century, were detailed studies for their time. But neither of these
works provided the testimonia for the cases it examined, nor did either pay sufficient attention to the
literary evidence.
1 of 506 7/11/2006 1:14 PM
Interstate Arbitrations In The Greek World, 337-90 B.C. http://content.cdlib.org/xtf/view?docId=ft0w1003hz&chunk.id=0&doc....
This book is intended to be a continuation of Piccirilli's study. An upper limit has therefore been
imposed by the lower limit of Piccirilli's work: Philip II's "arbitrations" in the Peloponnese after his
victory in Greece. A reasonable
― xiv ―
lower limit for this collection was harder to find. As Rome became increasingly involved in Greek affairs
through the second and first centuries, the nature of "interstate arbitration" changed. But there is no
clear date that provides a watershed, particularly when we see that long after Rome became dominant
in matters of Greek interstate relations, it was still passing on the actual task of arbitration to other
neutral Greek states. My final decision on a lower chronological limit was ultimately determined by the
evidence available—some important cases from the turn of the second and first centuries—rather than
by any conviction that the year 90 B.C. was of peculiar significance.
A few words should be said about the criteria for the inclusion of particular cases. In many
instances I considered it to be more valuable to take an inclusive rather than an exclusive approach.
Arbitration can be seen as a strictly defined legal process: both disputants are to submit legal
arguments and then accept the neutral and binding judgement of a disinterested third party. In
theory, they are to abide by that judgement even if they consider it unacceptable. Adhered to rigidly,
arbitration leaves no room for mediation and compromise. But it is clear, particularly in international
relations, that the best interests of all concerned are frequently better served by mediation than by the
strict legal procedure of arbitration. This is recognized by such modern bodies as the International
Court of Justice, whose mandate includes the equitable settlement of disputes, "even though such a
settlement may not be in conformity with the legal rights and duties of the parties" (G.
Schwarzenberger and E.D. Brown, A Manual of International Law [Milton, England, 1976] p. 197). The
Greeks recognized that it was much better to achieve a settlement through agreement, if at all
possible, than through judgement. Many of their arbitrators acted also as mediators. This was
especially the case when foreign judges came to a state to settle outstanding differences between
citizens; these judges usually earned the gratitude of the state they visited by trying to achieve a
voluntary compromise between the disputants before going on to give a formal judgement. While this
related phenomenon of foreign judges has not been dealt with in this study, the desire to achieve a
settlement through mediation before going to arbitration also appears in interstate disputes (see, for
example, 74 and 137 ).
Arbitration, then, cannot always be separated from the related phenomenon of mediation and
voluntary compromise. On occasion it can even be difficult to distinguish it from the harsher diplomacy
of dictation. The approach taken in this study has therefore been a broad rather than a narrow one.
This inclusive approach is especially requisite When dealing with the literary evidence. Despite the
often frustrating and fragmented nature of the epigraphic evidence, its more formulaic nature
sometimes makes it a better source for determining cases of "true" arbitration. The epigraphic
sources, for example, are more likely to draw a distinction between
(mediation) and
(judgement). The literary sources, on the other hand, rarely display interest in the exact details of
― xv ―
the phenomenon of arbitration as such, and the actual character of third-party interventions recorded
by the historians is often masked by that lack of concern.
Clearly the final decision on the inclusion of cases cannot be said to be an exact science. In the
interest of completeness I have indulged in a certain amount of inconsistency; some cases are present
without as good a claim to being called interstate arbitration as others. Some significant examples of
mediation and related diplomatic activity have been included for the sake of the maximum rather than
the minimum breadth of vision on the world of international law and diplomacy (e.g., 12 ). In addition,
the inclusion of some cases may be controversial for a variety of other reasons; see, for example, the
dubious attempt by Herakleia to mediate between Rome and Antiochos III (93 ). The appearance of
such cases here does not necessarily indicate my acceptance of them as historical fact. I felt it best,
when it came to the basic inclusion · of cases, not to cloud the issue with my own biases. Such an
approach would produce only a partial picture of the evidence.
Another criterion that I have tried to adhere to as far as possible is that the cases included must
deal with interstate arbitration. Symbola —agreements, which often provided for international
arbitration between individual members of different states—as well as other cases of international
2 of 506 7/11/2006 1:14 PM
Interstate Arbitrations In The Greek World, 337-90 B.C. http://content.cdlib.org/xtf/view?docId=ft0w1003hz&chunk.id=0&doc....
arbitration involving individuals, have been excluded, although some examples will be found in the
appendix. Those that have been included are generally here owing to some unique circumstances of
the case, such as certain instances where an individual's home state took up his cause (e.g., 21 ).
All instances of arbitration that involved Greeks or the Hellenistic kingdoms in any way have been
included. Frequently in the Hellenistic period the arbitrators were not Greek, but if at least one of the
disputants. was Greek, then the case has been included. Similarly, if the arbitrator was Greek, but
neither of the disputants was, the evidence has still been cited here. Instances of wholly non-Greek
arbitration, however, have been excluded. Thus Rome's arbitration between Carthage and Massinissa
does not appear here, although it does fall within the time frame of the study (Polyb. 32.2; Livy 34.62,
40.17, 42.23-24; App. Pun . 68-69). Neither is this collection intended to be a definitive or exhaustive
study of Roman relations with the East in the Hellenistic age. Although there is a fair amount of
material on Rome's involvement with the states of the eastern Mediterranean, this work should not be
seen as a comprehensive examination of senatorial diplomacy in this period from the Roman point of
view; for example, there is little on Roman involvement with the non-Greek kingdoms of Anatolia.
The format of the book follows that of Piccirilli's work: it is a collection of the evidence rather than
a thematic analysis of the phenomenon. Each instance of arbitration has been identified and dealt with
as a case study. Each case study includes a bibliography specific to that case, the relevant testimonia,
and a commentary. The general bibliography at the end of the work consists of select works of some
relevance to the phenomenon of arbitration or the history of the
― xvi ―
Hellenistic period. The individual cases should be consulted for more detailed bibliographic information.
I have also retained the basic chronological structure employed by Piccirilli; all things considered,
this approach is the most logical. A regional arrangement, such as Tod's, has little real value. It also
tends to obscure certain patterns that become clear when the cases are arranged chronologically, such
as the large number of boundary disputes all over the Greek world, all submitted to Roman arbitration
around 140 B.C. But if a chronological arrangement of the cases seems more valuable than a regional
one, then the question may be raised whether a topical arrangement of the cases would not be. still
more valuable for a researcher interested in, say, federal arbitration. The difficulty with a topical
arrangement is twofold: first of all, there are several cases of fragmented inscriptions that quite clearly
deal with an arbitration but do not allow us to determine the circumstances. In such cases, a topical
arrangement would be pointless. Second, there are numerous cases that could conceivably be
categorized under a number of different headings. In the end, the tried (if not always so true) method
of chronological order seemed best.
The case studies are followed by an appendix, which is intended to amplify further the picture of
interstate arbitration in the Hellenistic period by summarizing certain testimonia that have been
excluded from the main body of cases for a variety of reasons. Here may be found some instances of
symbola , included for comparative purposes, as well as summaries of those cases of Raeder and Tod
that were not included as cases here because they did not fit the criteria. The appendix also includes
some pieces of epigraphic evidence that may well point to instances of arbitration but are so extremely
fragmented that there is little point in speculating on them.
With respect to the epigraphic format of the case studies the following conventions should be
noted:
* the chief epigraphic edition employed
[a ] letters believed to have been on the stone originally, now totally illegible or lost
<a > correct letters to replace those accidentally left out or incorrectly inscribed by the engraver
{a } excess letters or words mistakenly added by the engraver
(a ) letters added by the editor to a word deliberately abbreviated on the stone
[[a ]] deliberate erasures (if they can be restored)
a still visible fragment of letters, restored by the editor
This book represents a revision of my doctoral dissertation at the University of British Columbia. I
would like to acknowledge the aid and support of various institutions and individuals in its production,
though any errors or shortcomings
― xvii ―
in the work are naturally my own. My adviser, Phillip Harding, deserves my sincere thanks for his
helpful advice and encouragement. I benefitted also from the advice offered to me by the external
3 of 506 7/11/2006 1:14 PM
Interstate Arbitrations In The Greek World, 337-90 B.C. http://content.cdlib.org/xtf/view?docId=ft0w1003hz&chunk.id=0&doc....
reviewer of my dissertation, Erich Gruen. I am grateful to the Izaak Walton Killam Foundation and the
Social Sciences and Humanities Research Council of Canada, both of which provided me with valuable
financial support during the period when I was working on the dissertation. Further support has come
from my own institution, the University of Waterloo. I would also like to thank Mary Lamprech of the
University of California Press for her patience and commitment to the publication of this study, and
Marian Rogers for her painstaking editing work.
― 3 ―
Introduction
Sometime in the late fourth century B.C. the tiny islands of Melos and Kimolos became involved in a
territorial dispute with each other over the possession of three even tinier islets. The two states turned
to the League of Corinth for help; · the League synedrion appointed Argos as an arbitrator to settle the
quarrel. In the last year of his life, Alexander the Great received deputations from numerous Greek
cities, embassies that had been sent to ask him to arbitrate disagreements between them and their
neighbours. When Rhodes was under siege by the forces of Demetrios Poliorketes in 305/4, Athens
and other states dispatched ambassadors to mediate between the two sides and reach a negotiated
peace. And numerous states, such as Priene and Samos in Asia Minor, Melitaia and Narthakion in
southern Thessaly, and Sparta along with its neighbours Messene and Megalopolis in the Peloponnese,
fought judicial battles over contested territory again and again over the centuries.
Submission of a dispute to the arbitrating power of a third party was dearly a frequent expedient
in international relations in ancient Greece, not only in the Hellenistic period but in earlier centuries as
well. And this was not a phenomenon restricted to the great powers of the day. Indeed, it seems to be
typical of international arbitration, in the ancient as in the modern world, that smaller states would
often be the most likely to appeal to the process. For a powerful state, submission to a binding judicial
process could represent a restriction of goals that might otherwise easily be achieved by military action
or economic pressures. A less significant power, incapable of pursuing its own interests through such
means, would have nothing to lose and perhaps everything to gain by an appeal to arbitration. The
examples of Melos and Kimolos, Melitaia and Narthakion, and many others are sufficient to illustrate
this point. The institution of arbitration might be the only protection smaller states could have in their
dealings with greater powers.
― 4 ―
The Disputes
The disputes submitted to arbitration in the ancient world were various and wide-ranging, Most often
the problem to be resolved was a matter of boundaries, but other matters might arise: quarrels
involving injuries to national pride, allegations of debt, or problems relating to the conclusion of
treaties. One of the more singular areas of conflict between the Greek states was the question of
religious jurisdiction. Several documents survive that indicate that disputes of this nature were
frequently submitted to international arbitration.[1] Disputes concerning religious jurisdiction
commonly focused on the control of a particular shrine or sanctuary, and the prestige and profits
therefrom. The boundary disagreements so typical of ancient arbitral settlements often sprang from
rival claims to a sacred site within the disputed territory. The ancestral hostilities between Sparta and
Messenia found expression (or an excuse) in their rivalry over the sanctuary of Artemis Limnatis (50,
159 ). Delphi, of course, was always concerned to maintain control of the holy precincts in its
neighbourhood. Delphi's consistent resorts to the device of arbitration were aimed at reducing the
encroachments of its neighbours, particularly Amphissa, not only on Delphi's own public land but also
on the sacred land.[2] Land disputes, then, could, and often did, arise from rivalry over a sanctuary,
though other conflicts involving religious jurisdiction are also reflected in the ancient evidence. Friction
could arise over the right or obligation to ritual or priestly service (4, 11 ), as it could over the
privilege of hieromnemonic representation in the Amphiktyonic League (133, 139, 167 ).
Transgression of interstate financial agreements naturally provided opportunities for arbitration.
Default on debts, fines, or other monies owing could result in an appeal to arbitration or to force,
4 of 506 7/11/2006 1:14 PM
Interstate Arbitrations In The Greek World, 337-90 B.C. http://content.cdlib.org/xtf/view?docId=ft0w1003hz&chunk.id=0&doc....
depending on the circumstances and the predisposition of the injured party. In the mid-second century
Ariarathes V of Cappadocia tried to extort a sum of money from the Prienians (143 ). Ariarathes
considered the money to be his as the lawful king: Priene chose to consider it the personal, rather
than the public, funds of the king's half brother Orophernes. Ariarathes tried to deal with what he
perceived as Prienian default by force, although the Prienians tried to have the issue settled by
mediation. A more peaceful, although perhaps no more successful, attempt to settle a problem of
default by arbitration was carried out by unknown arbitrators between Sparta and the Achaian
League.[3] International debt was an issue that was taken seriously, and it could escalate from the
private to the public level. In the fourth century a sum of money had been loaned by two individuals of
Kos to the state
[1] I.e., 4, 65, 133, 139, 158 .
[2] See 1, 22, 88, 117, 126 . For a discussion of various arbitrations involving sacred land in Crete,
see Chaniotis, Ktema .
[3] See 137 . The Spartans had a habit of not paying fines: cf. Piccirilli 53.
― 5 ―
of Kalymna. When repayment of the loan was demanded, the Koan state took up the cause of the
private creditors, and the entire matter was turned over to the arbitration of Knidos (21 ).
Throughout history there has generally existed a widespread, if rather imprecise and fluctuating,
consensus about what constitutes right or "just" treatment of one state by another. Certainly there
has been a sense, however subjective it might be on the part of the injured party, of what constitutes
a breach of international justice. In ancient Greece, actions that constituted such a breach naturally
could lead to war. But, like many issues that could find a solution in war, they were also capable of
submission to arbitration. Although the ancient world did not define international law and international
crimes to the same extent as does the world of the twentieth century, with its emphasis on the
community of nations and the justiciable nature of war crimes, the perpetrators of hostile acts or
international "crimes" could occasionally be indicted before a tribunal.
One practice, for example, that might be considered "illegal" or criminal by the state that suffered
but was considered perfectly legitimate by the perpetrator was
.[4] The raids and seizure of goods that constituted this practice were a matter for complaint on the
part of the victimized state. Arbitration was a way of settling problems related to the practice of
granting
, a method that was a substitute for full-scale hostilities. Troizen and Arsinoë submitted their
differences, including the question of restoration of goods seized under this practice, to the settlement
of judges sent by Ptolemy VI (138 ). The right of reprisal was perceived as justifiable on the part of
the state that granted it, as the only means of recovery of debt. On the other hand, the granting of
this right could be perceived by the injured party as a deliberately hostile and politically motivated
action. This is clear from the fact that the practice of
could raise previously private disagreements and hostilities to national proportions. When the Achaian
League granted
to its citizens against Boiotia in 187/6, the hostilities took on a national character, and Megara was
required to step in (105 ).
While the granting of
was undoubtedly a hostile act between nations, it remained, theoretically at least, on the level of
private individuals. As such it was representative of aggravated relations between states but was still
capable of solution through arbitration. Less easily resolved was the outright act of aggression on the
part of one state against another. When Aratos, at the head of the forces of the Achaian League,
invaded Argos in peacetime, the Argive tyrant demanded due judicial process (39 ). His position was
vindicated [4]
― 6 ―
by the Mantineian tribunal, but it is infrequently that we find a victim of armed aggression actually
5 of 506 7/11/2006 1:14 PM
Interstate Arbitrations In The Greek World, 337-90 B.C. http://content.cdlib.org/xtf/view?docId=ft0w1003hz&chunk.id=0&doc....
bringing a successful suit against the aggressor in an international court, for the commission of a
"crime."[5]
The more frequent result of armed aggression was a declaration of war, and it is often in the
settlement of a state of war that we see the intervention of a third party. In this case, it is often
difficult or impossible to separate arbitration from mediation. Frequently the sources provide only the
briefest of references to a third-party solution to a state of war, references that might indicate
anything from mere friendly (or not so friendly) pressure to negotiate to a full-fledged judicial board
prepared to correct all grievances.[6] A mediating individual or state that took the initiative in putting
an end to hostilities might, if successful, go on to arbitrate the differences and negotiate a treaty
between the warring states. Certainly Knidos was responsible for arbitrating the complaints
outstanding from a war between Temnos and Klazomenai, as well as for establishing the treaty
between them that made provision for the settlement of future disputes (71 ). Arbitration could also
be employed in the institution of international agreements other than peace treaties. Antigonos I may
have acted as a mediator between Teos and Lebedos in their attempted synoikism at the end of the
fourth century (13 ), and the ambassadors of the Aitolian League certainly arbitrated between
Messene and Phigaleia around the year 240 in order to establish a harmonious isopolity (40 ).
By far the greatest number of disputes submitted to international arbitration by the ancient Greeks
consisted of quarrels over a contested piece of territory.[7] This is not surprising given the relative lack
of fertile land in Greece and the fiercely independent nature of even the smallest of Greek
communities. And naturally it was the fertile land that was most hotly contested, to the extent that
arbitrators occasionally found it necessary to award "joint custody," and determine that the proceeds
from the contested territory were to be shared by the two parties.[8] A solution such as this relieved
the arbitrator of the necessity of making an unpopular judgement; but it was probably also a realistic
reflection both of the limited quantity of decent land with sufficient irrigation and of the frequently
doubtful or unprovable nature of the contestants' claims.
[5] As opposed to having a court resolve hostilities between the two once they were actually in a state
of war. In any event, the suit may not have been completely successful, as Aratos failed to appear,
and the fine may never have been paid. For earlier examples of condemnations of international
"crimes," see Piccirilli 6 and 17.
[6] Gr. 27, 53, 57, 84, 94, 122, 143 .
[7][8]
― 7 ―
Disputes over the possession of a certain piece of territory could arise for reasons other than those
motivated by the fertility of the land in question. As mentioned above, many cases of arbitration
resulted from rivalry over a piece of land that contained a religious sanctuary. Territorial redistribution
might also resolve a question of access to transportation mutes (85, 138 ) or decide a dispute over
the ownership of land of strategic military value (74, 125 ). The resources of the region, and the
rights to them, might also be the subject of arbitration.[9] Generally the land in question was a tract
bordering on the two disputant states, although occasionally it was a discrete parcel, such as an island
(3, 158 ).
On the whole, the issues involved in international disputes in antiquity bear a resemblance to
many issues before international courts in the modern world. Boundary disputes, transgression of
treaty obligations, feuds over access to natural resources, and various other areas of natural conflict
between states provide grounds for third-party intervention today as they did in antiquity. Even
altercations over territorial religious jurisdiction, so characteristic of the world of ancient Greece, have
their counterpart in the twentieth century.[10]
Obligatory Arbitration
In agreements that established close relations between states the Greeks often provided for the
settlement of future disputes. This provision was particularly appropriate in the case of synoikisms or
sympolities (13, 89, 108 ), but naturally the procedure of attaching an arbitration clause to a treaty
was not restricted to such agreements. As time went on, it became ever more customary to provide
for future arbitration of disagreements by attaching an obligatory arbitration clause not only to
isopolitical or similar arrangements but also to other international agreements, such as alliances or
peace treaties.[11] In some cases obligatory arbitration appears to have been mandated for any and
6 of 506 7/11/2006 1:14 PM
Interstate Arbitrations In The Greek World, 337-90 B.C. http://content.cdlib.org/xtf/view?docId=ft0w1003hz&chunk.id=0&doc....
all future disputes between the states (71 ). In other instances, it would be a specific issue that was to
go to an arbitral settlement (33, 47, 48 ).
The general pattern of obligatory arbitration clauses, however, was that of a vague and general
promise to turn to arbitration should it ever be required. These good intentions were enshrined in brief
and imprecise clauses inserted in peace treaties, clauses without any specific provisions. Details were
left to. be worked out later, if arbitration proved to be necessary. Such an approach
[9] Fishing rights may have been part of the issue in 17, 83 , and 138 .
[10] In 1962 the International Court of Justice arbitrated a dispute between Cambodia and Thailand
over the possession of the temple of Preah Vihear and its precincts, located among the mountains that
formed the boundary of the two countries.
[11] The phenomenon does appear in the classical age. Athens and Sparta had such an arrangement
as a result of the Thirty Years' Peace in 446/5; see Piccirilli 21. Cf. also Piccirilli 11, 25, 27, and 31.<
― 8 ―
could end in failure: the impotence of the arbitration clause in the Thirty Years' Peace Treaty is
sufficient proof of that. But some treaties with an obligatory arbitration clause did take greater care to
specify the procedure. In the treaty between Miletos and Herakleia it was specified that the arbitrator
to be chosen would be a free and democratic city (108 ). In the case of the synoikism between Teos
and Lebedos, the arbitrating state was designated by name (13 ). And when Temnos and Klazomenai
drew up their treaty, they appended to it an extremely detailed catalogue of procedures to be followed
in the event of future arbitration (71 ).
Compromisary Arbitration
In the absence of a treaty providing for arbitration of interstate quarrels, two states divided on a
particular issue could still agree on an ad hoc basis to refer their problem to a third party. Indeed,
"compromisary" arbitration was perhaps more likely to be successful than obligatory arbitration. In the
latter case, political and other circumstances had often shifted in the interim since the formulation of
the original obligatory clause. One or both parties might feel no need or desire to resort to arbitration
as promised.[12]
In the case of compromisary arbitration, the first steps were to open communication between the
disputing states, particularly if such communication had been interrupted by a state of war. It was
necessary for one or both sides to send embassies in order to bring about some form of initial
agreement to go to arbitration. One party might formally invite or challenge the other to submit to
arbitration (63, 78 ). Such a challenge, initiated by one side alone, did not necessarily imply coercion
or an obligation for the other party to submit to arbitration. An agreement to the invitation was
necessary in order for the affair to proceed any further. Many attempts at arbitration did indeed break
down at this stage through the refusal of the Challenged party.[13]
In the case of a successful challenge or invitation, the representatives of both states could reach
an agreement together to go to arbitration.[14] Generally the two sides would draw up a preliminary
document (conventionally referred to as the compromissum ), which would lay down guidelines for the
arbitration. Various concerns would have to be resolved at this stage prior to submitting the dispute to
the arbitrator. Arbitration was generally agreed to be binding; therefore it was necessary that both
parties agree, before going to arbitration,
[12] But attempts were made to ensure that both parties would adhere to the provisions of an
arbitration treaty. The treaty between Sardis and Ephesos (170 ) specifically provided for a judgement
in favour of the party that appeared if one party defaulted.
[13] Cf. Piccirilli 23 and 38.
[14]
― 9 ―
on the procedure and the powers to be granted to the arbitrating body. This was the function of the
compromissum . A few of the extant documents dealing with international arbitration appear to record
this preliminary agreement, rather than the final judgement.[15] It was to everyone's advantage that
7 of 506 7/11/2006 1:14 PM
Interstate Arbitrations In The Greek World, 337-90 B.C. http://content.cdlib.org/xtf/view?docId=ft0w1003hz&chunk.id=0&doc....
the compromissum be made public. This would reduce the chances of a potential disagreement over
whether the procedure had not conformed to the agreement, or whether the arbitrator had acted ultra
vires . It would also act as a signed statement from both parties, to the effect that they had agreed to
arbitration and were therefore obliged to abide by the findings of the court.
One of the matters that would be set down in the compromissum was the subject of the dispute,
whether it was a contested tract of land, a complaint over
, or a problem of debt. States that resorted to arbitration were in effect surrendering their sovereignty
temporarily to the arbitrator. They were, therefore, careful about defining the exact subject of dispute,
as a way of delimiting the power of the arbitrator. The identity of the arbitrator was one of the most
important things specified in the preliminary agreement and no doubt was frequently the result of
much delicate negotiation. Both sides would have to find the choice amenable and would have to be
well assured of the third state's neutrality. In one instance, the preliminary agreement specified not
only the arbitrating state but also the individual to be chosen. When Phthiotic Thebes and Halos turned
to Larisa for arbitration, they particularly requested that one Makon be the individual to take on the
job (153 ). The specification of an individual (other than a king) in the compromissum is unusual, at
least in the extant sources. Nevertheless, it is not unlikely that this occurred from time to time,
especially in the case of the "arbitration experts," such as Nikostratos and Euphaniskos of Rhodes.[16]
The more common procedure, however, was for the two states to agree on the arbitrating state, and
then leave the choice of the arbitrating individual or committee up to that state.
Procedural details might also be fixed by the compromissum before the actual trial would take
place. Certain general rules reappear throughout the history of the institution of arbitration, but in the
absence of any supranational laws that would give a fixed and specific formula for universal use,
procedural guidelines had to be established anew every time. When Boumelita and Halai came to
submit their land dispute to Thebes, they found it necessary to agree upon certain rules in advance
(129 ). This document is a particularly good illustration of the specifications that might be made with
respect to the duties and responsibilities of the various officials involved. The procedure to be followed
was detailed with
[15] They at least reflect the compromissum if they do not actually record it verbatim . See 129, 145,
146, 153 .
[16] See 74, 109, 117 . Cf. 146 , where Pitane and Mytilene, when agreeing to submit to Pergamene
arbitration, requested that five specific individuals, who had acted as ambassadors to the two states,
also form the tribunal.
― 10 ―
great care, down to the composition of the oaths that the judges, the advocates, and the
were to swear.
The compromissum typically set down a time limit for the arbitration. The preliminary agreement,
and with it the abeyance of hostilities, could be in effect only for a limited time. Within that time the
arbitral tribunal had to be convoked and a settlement made, or, presumably, the compromissum would
be invalidated, and a fresh set of negotiations would have to be undertaken. Halos and Thebes set a
time limit to their arbitration;[17] when the Thourians and Megalopolitans resorted to the arbitration of
Patrai, they not only set a time limit; they set a specific date.[18] Limits could be extended if
circumstances required it; Lato and Olos gave a further six months to their Knossian arbitrators (164
).
The decision to go to arbitration necessitated a promise to abide by the arbitrator's judgement,
the "
clause," which ensured the validity of the settlement.[19] Should either side default or refuse to abide
by the arbitral decision a fine of some sort was a common penalty. The compromissum between Halos
and Thebes stated that whoever should fail to accept Makon's decision was liable to pay a fine of five
silver talents. A compromissum would also generally provide for the publication of the judgement,
often at an international religious site, such as the Asklepieion at Epidauros or the sanctuary at Delphi.
Arbitral Procedure
8 of 506 7/11/2006 1:14 PM
Interstate Arbitrations In The Greek World, 337-90 B.C. http://content.cdlib.org/xtf/view?docId=ft0w1003hz&chunk.id=0&doc....
The first step in arbitral procedure, once an arbitration treaty was invoked or a compromissum
reached, was for the parties concerned to invite the designated third state to perform the
arbitration.[20] Occasionally the party that was to act as an arbitrator had taken the first step itself.
Pitane and Mytilene agreed with one another to ask Pergamon to arbitrate their differences; when they
did so, they were acting in response to an embassy from the Pergamenes themselves (146 ). Usually,
however, the disputing parties made the initial request and sent embassies of their own to deliver the
invitation to the prospective arbitrator.
The choice of the arbitrating state might be dictated by a preexisting treaty. A certain state could
be designated as the
, the city that the participants in a treaty would consult if problems should arise between them. When
Antigonos I oversaw the synoikism between Teos and Lebedos he designated Mytilene as the
to deal with disagreements (13 ). Ephesos and Sardis apparently worked up a roster of possible
choices for an arbitrating state; when the need arose, one was to be picked by lot (170 ). But if the
power
[17] See 153 (lines 12-13). Cf. 146 , where it is specified that no suits between Pitane and Mytilene
were to be left untried after a period of three months, and also 158 .
[18] See 145 (lines 5-6).
[19] See, inter al., 146, 153 .
[20]
― 11 ―
that was to arbitrate had not been predetermined by treaty, then other factors could determine the
immediate choice of the arbitrating state. Neutrality and goodwill were obviously always desirable
qualities. It could also be stipulated that the arbitrating state be ideologically in sympathy with the
states requesting arbitration. Thus the two disputants might agree to submit their differences to a
"free and democratic" state (108 ). In order to ensure that a tribunal was truly objective, and
unswayed by considerations of national interest, sometimes several different states would be invited to
constitute the court.[21] The principle of a tribunal empanelled from several states is one commonly
embodied in present-day international courts; but on the whole the Greeks tended to refer their
disputes to a single state.
One of the most important factors in the choice of an arbitrator was the prestige of the state or
individual. The more prestigious the arbitrator, the greater authority his judgement could have. The
great dynasts of the Hellenistic age were often invited to act as arbitrators, and as the Greeks came to
recognize the increasing power and influence of Rome in the Mediterranean, the senate was frequently
petitioned by requests for arbitration. Of the independent Greek republics, Rhodes was the favoured
choice and built an impressive reputation for itself in the field of mediation and arbitration through the
late third and early second centuries.[22] Rhodes in this period was one of the more powerful
independent Greek states and would of course have increased its prestige all the more through its
successful diplomatic record.
Once an invitation to arbitrate had been made, the state petitioned to perform this service rarely
refused it. It was usually the province of the arbitrating state to choose those individuals who would
actually carry out the judicial procedure.[23] Generally the rationale for choosing the tribunal
was based on one of two divergent ideological approaches. The choice might be made on the basis of
the democratic tenet that fairness and equity were to be found by soliciting the opinion of a broad
cross section of the general population. A state might designate a number of its citizens, chosen by lot,
to form a court that might be several hundred in number.[24]
[21] Thus Samos, Kolophon, and Magnesia arbitrated the Melitaia-Narthakion dispute (154 ). When
Miletos and Magnesia settled their differences, the representatives of several states were present as
mediators or arbitrators (109 ).
[22] See 52, 53, 57, 63, 74, 77, 94, 109, 117, 119, 121, 124 . See Ager, Historia 40 (1991).
[23][24]
9 of 506 7/11/2006 1:14 PM
Interstate Arbitrations In The Greek World, 337-90 B.C. http://content.cdlib.org/xtf/view?docId=ft0w1003hz&chunk.id=0&doc....
― 12 ―
The other approach embodied the principle of expertise rather than equity. In many cases we find a
small tribunal, which was more likely to be elected or appointed than chosen by lot.[25] The individuals
might be chosen for general aristocratic reasons, or because they had actual diplomatic or specific
arbitral experience.[26] Smaller commissions such as these were more conducive to an arbitration
taking place in the territory of the disputing cities; and in the case of a land dispute, it was much
easier to show the territory to a small number of people.[27] The need for examination by autopsy
might therefore be a decisive factor in the size of the tribunal. Although the evidence is scanty, it is
not unlikely that one man might be chosen to act as president of any tribunal numbering more than
two or three individuals.[28]
Once the arbitrating state had accepted the responsibility and delegated the authority to a
tribunal, the venue of the trial was the next concern. The judgement would sometimes take place in
the arbitrating state itself. Certainly in the case of the Hellenistic dynasts, the monarch himself was
unlikely to visit the states in dispute, although he might dispatch a representative to take over the
case.[29] Philip V appointed deputies to settle the details of a territorial contest between Herakleion
and Gonnoi (54 ); but when Lysimachos arbitrated between Samos and Priene, embassies from both
states apparently contested their claims at Lysimachos's court (26 ). The overall pattern of Roman
arbitration was twofold: the senate would often listen to claims and counterclaims put before it in
Rome and then either dispatch legates to investigate the matter in detail on the spot or else delegate
an independent state
[25] For smaller tribunals, see 30 (5), 33 (20), 40 (3), 56 (3), 63 (6), 71 (6), 74 (5).
[26]
[27] This is clearly shown in 38 , where the initial court numbered 151 judges; however, when it came
time for a more detailed survey of the land in dispute, a select commission of 31 men was chosen.
[28]
[29] An obvious exception is Alexander the Great, who apparently settled disputes, probably more
than our sources record, in the course of his expedition. See 6, 74 .
― 13 ―
to give judgement, usually after laying down a general rule about the point of law.[30]
Roman senators and Hellenistic monarchs, who might be expected to stand on their prestige, were
not the only arbitrators to hear cases in their home state. The tribunals that consisted of several
hundred individuals were likely to try a case in their own state; when the
is said to have voted in an arbitration it is virtually certain that the vote took place in the arbitrating
state. The court of 600 Milesians that judged, the conflicting claims of the Spartans and Messenians
heard the case in Miletos (159 ). But one or two cases indicate that "long-distance" judging was
thought to be unsatisfactory in some instances. When Smyrna handed down a decision on a boundary
dispute between Priene and Miletos, it did so by a collective vote of the people of Smyrna as a whole.
There was apparently no firsthand investigation of the site, and the evidence we have suggests that a
further boundary commission was required to settle outstanding problems (100 ). When Megara
arbitrated a conflict between Corinth and Epidauros, the large court of 151 judges was apparently able
to carry out only the briefest of on-site inspections. Corinth was dissatisfied with the results, and
Megara had to send a smaller commission of 31 men to carry out a more detailed boundary delineation
(38 ).
Megara's decision between Corinth and Epidauros demonstrates a common pattern in the choice of
venue for the trial. In cases of boundary arbitration, by far the largest group of arbitrations, the judges
would usually see over the land and visit the states in question, but the final judgement might be
given elsewhere. When Pergamon arbitrated between Pitane and Mytilene, the judges visited the
contested territory and then gave judgement at home in Pergamon (146 ). In the case of the Rhodian
arbitration between Samos and Priene, evidence was heard in numerous venues: at Rhodes, on the
land itself, and finally at Ephesos (74 ).
No matter where the final decision in a boundary arbitration was given, the trial usually
necessitated some travel, since the tribunal generally acted as a boundary commission. Judges were
asked to make not only legal, but also topographic, decisions. In certain instances the topographic
10 of 506 7/11/2006 1:14 PM