The Westphalian Model in Defining International Law-Challenging The Myth

Australian Journal of Legal History (2004) Vol 8 181
THE WESTPHALIAN MODEL IN DEFINING INTERNATIONAL LAW:

CHALLENGING THE MYTH
STÉPHANE BEAULAC *
1 INTRODUCTION
Words and expressions are activities in themselves. 1 Words and expressions are
mental-social phenomena separate and distinct from reality.2 Words and
expressions exist and act within human consciousness. 3 Indeed, through the
cognitive process of the human mind, not only can language represent reality, but it
may play a leading part in creating and transforming reality, including modelling
the shared consciousness of society. 4 ‘Westphalia’ is one of those powerful words
*
PhD (Cantab), Faculty of Law, University of Montreal, Canada. This paper was delivered at
the 22nd Annual Conference of the Australia and New Zealand Law and History Society,
entitled ‘Defining Jurisdictions and Boundaries’, held in Brisbane on 10-11 July 2003, and is
largely based on my PhD thesis now published as S Beaulac, The Power of Language in the
Making of International Law – The Word Sovereignty in Bodin and Vattel and the Myth of
Westphalia (2004).
1
For more on this, see J L Austin’s ‘speech-act theory’ in How to do Things with Words (1962).
2
Such a conceptualisation of words and expressions as separate and distinct from reality, is
essentially nominalist − etymologically, belonging to a name. Nominalism is a medieval
philosophy, most often associated with William of Ockham, which took the view that abstract
concepts are merely words and do not refer to anything that exists in the way that particular
things exist.
3
This idea of ‘consciousness of humanity’ is borrowed from the moral philosophy of Georg
Wilhelm Friedrich Hegel, in particular from G W F Hegel, Phänomenologie des Geistes
(1952) first published in 1807, §§ 632-671; see also the translation by A V Miller, G W F
Hegel, Phenomenology of Spirit (1977) 383-409. The idea of ‘consciousness’ associated to an
ensemble of human beings was suggested by G Butler, ‘Sovereignty and the League of
Nations’ (1920-21) 1 British Y B Int’l L 35, 42, who discussed the word sovereignty, and more
particularly the expression ‘external sovereignty,’ by resorting, inter alia, to insights from the
new field of psychology. See also P Allott, ‘Reconstituting Humanity − New International
Law’ (1992) 3 European J Int’l L 219, 223, who expressed the following view: ‘Society exists
nowhere else than in the human mind. And the constitution of a given society exists in and of
human consciousness, the consciousness of those conceived as its members and its non-
members, past and present. Wherever and whenever a structure-system of human socializing is
so conceived in consciousness, there and then a society is conceived − family, tribe, organized
religion, legal corporation, nation, state ...’ [emphasis added]
4
This is based on Ludwig Wittgenstein’s theory of language which, initially, was to the effect
that words could represent reality, that language offered, as it were, a picture of the world; see
L Wittgenstein, Tractatus Logico-Philosophicus (1961) 15ff and 51ff. However, in his later
182 Australian Journal of Legal History (2004) Vol 8
which has its own existence as an active force within human consciousness. The
expression ‘Westphalian model’ acts as an organic instrument which can
demonstrate, and may actually be strategically used to carry, tremendous social
power within the shared consciousness of the international community. 5
In fact, the ‘Westphalian model’ of international legal order holds that the Peace of
Westphalia in 1648, which ended the Thirty Years’ War in Europe, constituted a
paradigm shift in the development of the present state system. 6 The twin congresses
held are deemed the forum where, for the first time in the history of international
relations, distinct separate polities became sovereign. It is portrayed as a historical
fact that Westphalia ‘represented a new diplomatic arrangement − an order created
by states, for states − and replaced most of the legal vestiges of hierarchy, at the
work on the issue, Philosophical Investigations (1958) the Austrian philosopher categorically
revised his position and argued that words and expressions do not merely provide a
representation of reality but, in effect, language would be an activity happening within reality,
that it is indeed a participant in human consciousness − ‘Here the term “language-game” is
meant to bring into prominence the fact that the speaking of language is part of an activity, or
of a form of life;’ ibid 11. [emphasis in original] ] See also P Allott, ‘The Nation as Mind
Politic’ (1992) 24 J Int’l L & Pol 1361, 1361-1362: ‘With Wittgenstein, we have been forced
to face the possibility that human communication is not the transfer of something called Truth
through a neutral medium called Language. Communication would then have to be regarded as
simply another form of human activity, sharing in the intrinsic and irreducible ambiguity of all
human activity.’
5
The term ‘organic’ is used here to denote a property of language that allows words and
expressions to be, simultaneously, autonomous and intertwined with the reality they represent.
This idea is linked to the so-called ‘Ogden and Richards’ Triangle,’ whereby words are
considered linguistic signs (Ogden and Richards’ ‘symbol’) which indirectly represent reality
(Ogden and Richards’ ‘referent’) through the cognitive process of the human mind (Ogden and
Richards’ ‘thought or reference’) all of which for the purpose of communication within the
shared consciousness of society. See C K Ogden and I A Richards, The Meaning of Meaning −
A Study of the Influence of Language upon Thought and of the Science of Symbolism (2nd ed,
1927) 10-11.
6
As D Kennedy, ‘Primitive Legal Scholarship’ (1986) 27 Harvard Int’l LJ 1, wrote:
‘International legal scholars have made much of 1648’. [footnotes omitted] See, among
numerous international legal commentators who take that position or assume its validity, H
Wheaton, History of the Law of Nations in Europe and America − From the Earliest Times to
the Treaty of Washington, 1842 (1845) 69; T Twiss, The Law of Nations Considered as
Independent Political Communities (1861) vol 1, iii; S Baker (ed), Halleck’s International Law
− Rules Regulating the Intercourse of States in Peace and War (2nd ed, 1878) vol 1, 13-14; J
Westlake, Chapters on the Principles of International Law (1894) 66 and 76; L F E
Oppenheim, International Law − A Treatise (1905) vol 1, 60; A P Higging, ‘International Law
and the Outer World, 1450-1648’ in J H Rose, A P Newton and E A Benians (eds), The
Cambridge History of the British Empire (1929) vol 1, 183, 206; G A Finch, ‘Les sources
modernes du droit international’ (1935) 53 Recueil des cours de l’Académie de droit
international [herinafter RCADI.] 531, 536; M Sibert, Traité de droit international public
(1951) vol 1, 48; T Ruyssen, Les sources doctrinales de l’internationalisme (1954) vol 1,
487ff; J G Starke, An Introduction to International Law (5th ed, 1963) 10; J L Brierly, The Law
of Nations: An Introduction to the International Law of Peace (6th ed, 1963) 5-6; R A Falk,
‘The Interplay of Westphalia and Charter Conceptions of the International Order’ in R A Falk
and C E Black (eds), The Future of the International Legal Order (1969) vol 1, 32; P Daillier
and A Pellet (eds), Nguyen Quoc Dinh − Droit international public (5th ed, 1994) 49-50; W G
Grewe, The Epochs of International Law (2000) 7.
The Westphalian Model in Defining International Law: 183
pinnacle of which were the Pope and the Holy Roman Emperor’. 7 As Mark Janis
unequivocally put it:
The Peace of Westphalia legitimated the right of sovereigns to govern their peoples
free of outside interference, whether any such external claim to interfere was based
on political, legal or religious principles. [...] Sovereignty, as a concept, formed the
cornerstone of the edifice of international relations that 1648 raised up. Sovereignty
was the crucial element in the peace treaties of Westphalia, the international
agreements that were intended to end a great war and to promote a coming peace.
The treaties of Westphalia enthroned and sanctified sovereigns, gave them powers
domestically and independence externally. 8
In his essay marking the tercentenary of the Peace, Leo Gross emphasised how
much 1648 constituted a turning point in the organisation of Europe, away from the
so-called ancien régime. He wrote: ‘Westphalia, for better or worse, marks the end
of an epoch and the opening of another. It represents the majestic portal which
leads from the old into the new world.’ 9 Dionisio Anzilotti, for his part, observed
that Westphalia has been ‘considered, rightfully so, as the starting point of the
historical development of the present international law’.10 Recently, Richard Falk
opined: ‘It was not until some decades later, [after Grotius] by way of the Peace of
Westphalia in 1648 that ended the Thirty Years’ War, that the modern system of
states was formally established as the dominant world order framework’. 11
7
K J Holsti, Peace and War − Armed Conflicts and International Order (1991) 25. [footnotes
omitted] See also the different contributions, all to that same effect, made at the international
symposium in commemoration of the 350th anniversary of the Peace of Westphalia: K
Bussmann and H Schilling (eds), 1648: War and Peace in Europe (1998) vol 1.
8
M S Janis, ‘Sovereignty and International Law: Hobbes and Grotius’ in R St J Macdonald (ed),
Essays in Honour of Wang Tieya (1994) 391, 393. [emphasis added] Likewise, see D J Hill, A
History of Diplomacy in the International Development of Europe (1906) vol 2, 599, who
wrote that ‘the Peace of Westphalia was the most important, and in its results the most
enduring, public act of modern history, for from it dates the present political system of Europe
as a group of independent sovereign states’. [emphasis added]
9
L Gross, ‘The Peace of Westphalia 1648-1948’ (1948) 42 American J Int’l L 20, 28. [emphasis
added] Later, ibid 28-29, he added: ‘In the spiritual field the Treaty of Westphalia was said to
be ‘a public act of disregard of the international authority of the Papacy’. In the political field
it marked man’s abandonment of the idea of a hierarchical structure of society and his option
for a new system characterized by the coexistence of a multiplicity of states, each sovereign
within its territory, equal to one another, and free from any external earthly authority’;
[footnotes omitted] [emphasis added] See also L Gross, Essays on International Law and
Organization (1984) vo1 1.
10
D Anzilotti, Cours de droit international (1929) vol 1, 5; author’s translation of: ‘considérés
avec raison comme le point de départ du développement historique du droit international
actuel’. See also, to the same effect, R Redslob, Histoire des grands principes du droit des
gens − Depuis l’antiquité jusqu’à la veille de la grande guerre (1923) 213: ‘Avec le traité de
Westphalie commence une nouvelle époque dans l’histoire du droit des gens.’ [footnotes
omitted]
11
R A Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (1998) 4.
[emphasis added] He further wrote: ‘it was not for another century or so that it seemed
possible to appreciate that indeed Westphalia had provided a defining threshold − of course,
overgeneralized and simplified, but yet a convenient shorthand by which to situate the
transition from the medieval to the modern’; ibid. [footnotes omitted] See also T Ruyssen, Les
In terms of social effect on the consciousness of humanity, the Peace of Westphalia

is said to have consecrated the principle of sovereign equality of states,12 which has
been at the core of international law ever since.13 Charles Rhyne explained it in the
following terms: ‘The traditional European international law system dates from the
Treaty of Westphalia of 1648, which marked the formal recognition of states as
sovereign and independent political units’.14 Likewise, Donat Pharand wrote that
‘state sovereignty came to be accepted as a principle of international law at the
Peace of Westphalia, ending the Thirty Years’ War’.1 5 Again, recently, Thomas
Franck noted: ‘Since the Reformation, the Peace of Westphalia, and the writings of
Hugo Grotius, there has been an explicit assumption that the international system is
an association of sovereign states’.16
In social sciences, Westphalia has also long been considered ‘the cornerstone of the
modern system of international relations’.1 7 One of the first advocates of the realist
school of international relations, Hans Morgenthau, wrote the following about the
Peace:
By the end of the Thirty Years’ War, sovereignty as supreme power over a certain
territory was a political fact, signifying the victory of the territorial princes over the
universal authority of emperor and pope, on the one hand, and over the particularistic
sources doctrinales de l’internationalisme (1957) vol 2, 8-9.

12
See the recent collection of essays on the theoretical basis of our international legal system: C
Harding and C L Lim (eds), Renegotiating Westphalia − Essays and Commentary on the
European and Conceptual Foundations of Modern International Law (1999). See also H
Steiger, ‘Concrete Peace and General Order: The Legal Meaning of the Treaties of 24 October
1648’ in K Bussmann and H Schilling, above n 7, 437, 440, who wrote: ‘Sovereignty − as a
form of complete external and internal independence and self-determination in relation to
every other power − became the fundamental principle of the European order. Thus, a
horizontally conceived order of powers developed, in which all powers, including Emperor
and Pope, were legally placed side by side. To a certain extent, the treaties of Münster and
Osnabrück provided the confirming conclusion to this development, thus at the same time
marking the beginning of a new era.’ [footnotes omitted]
13
See, for instance, the Charter of the United Nations, 26 June 1945, TS no 993, 145 UKTS 805,
Can TS no 7, reproduced in M D Evans (ed), Blackstone’s International Law Documents (3rd
ed, 1996) 8, which states as its first principle, in article 2: ‘The Organization is based on the
principle of the sovereign equality of all its Members’. See also I Brownlie, Principles of
Public International Law (4th ed, 1990) 287.
14
C S Rhyne, International Law − The Substance, Processes, Procedures and Institutions for
World Peace with Justice (1971) 9. [emphasis added] See also C Fenwick, International Law
(4th ed, 1965) 14, who wrote that after Westphalia, ‘the international community was to
consist of coequal members individually independent of any higher authority’.
15
D Pharand, ‘Perspectives on Sovereignty in the Current Context: A Canadian Viewpoint’
(1994) 20 Canada-United States LJ 19, 20. [emphasis added] See also L Henkin, ‘International
Law: Politics, Values and Functions − General Course on Public International Law’ (1989)
216 RCADI 9, 25, note **, who wrote that the shift to ‘a developed political system with
international law rules, is commonly dated from the Peace of Westphalia (1648)’.
16
T M Franck, The Empowered Self − Law and Society in the Age of Individualism (1999) 5.
[emphasis added] For a succinct account of the main legal events on the international plane
from 1648 to the beginning of the 20th century, see A S Hershey, ‘History of International
Law Since the Peace of Westphalia’ (1912) 6 American J Int’l L 30.
17
G Poggi, The Development of the Modern State − A Sociological Introduction (1978) 89.
aspirations of the feudal barons, on the other.1 8
The large majority of modern international relations scholarships explicitly share

that view.19
To give the contemporary example of the International Criminal Court, which

became operational in The Hague on 1 July 2002,20 the rhetoric surrounding the
adoption of the Rome Statute21 included claims of a fundamental change in the
‘Westphalian model’ of international legal order. In a chapter on the creation of the
Court, for instance, William Schabas spoke of the progressive emergence of the
concepts of international prosecution for humanitarian abuses, away from ‘the
sanctity of State sovereignty resulting from the Peace of Westphalia of 1648’.2 2
Likewise, Leila Nadya Sadat and Richard Carden wrote:
For if many aspects of the Rome Treaty demonstrate the tenacity of traditional
Westphalian notions of State sovereignty, there are nonetheless elements of
supranationalism and efficacy (in spite of the complementary principle) in the
[Rome] Statute that could prove extremely powerful.23
Dwelling on the jurisdiction of the Court in the Rome Statute,24 Richard Wilkins
opined that: ‘Not since the Treaty of Westphalia in 1648 has a treaty ever purported
to bind parties which are not signatories to the treaty’.25
This paper will show that the dogma according to which the Peace of Westphalia
constitutes the first case where the idea of state sovereignty was recognised and
18
H J Morgenthau, ‘The Problem of Sovereignty Reconsidered’ (1948) 58 Columbia L Rev 341,
341. [emphasis added].
19
See, among numerous contemporaries, D Fagelson, ‘Two Concepts of Sovereignty: From
Westphalia to the Law of Peoples?’ (2001) 38 Int’l Politics 499; D Philpott, Revolutions in
Sovereignty − How Ideas Shaped Modern International Relations (2001); R Jackson,
‘Sovereignty in World Politics: A Glance at the Conceptual and Historical Landscape’ (1999)
47 Political S 431; J Rosenberg, The Empire of Civil Society − A Critique of the Realist Theory
of International Relations (1994). Contra, see S D Krasner, ‘Westphalia and All That’ in J
Goldstein and R O Keohane (eds), Ideas and Foreign Policy − Beliefs, Institutions, and
Political Change (1993) 235.
20
Pursuant to its article 126, the Rome Treaty became effective upon the ratification of sixty (60)
states.
21
Rome Statute of the International Criminal Court, UN Doc A/CONF.183/9 (1998) 37 ILM 999
(1998) http://www.un.org/icc. [hereinafter Rome Statute] This instrument was adopted by the
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court on 17 July 1998.
22
W A Schabas, An Introduction to the International Criminal Court (2001) 1.
23
L N Sadat and S R Carden, ‘The New International Criminal Court: An Uneasy Revolution’
(2000) 88 Geo LJ 381, 385.
24
See Rome Statute, article 12. See also M P Scharf, ‘The United States and the International
Criminal Court: The ICC’s Jurisdiction over the Nationals of Non-Party State: A Critique of
the US Position’ (2001) 64 Law & Contemp Prob 67.
25
R G Wilkins, ‘The Right Thing the Wrong Way − Implications of the New International
Criminal Court’ (2002) 17 The World & I 265, 268. [emphasis in original]
applied is a myth. The aetiological myth26 of Westphalia has carried extraordinary

power within the shared consciousness of society, including international society,
and continues to impact discourses on contemporary issues on the international
plane. Preliminarily, the notion of myth and mythology will be examined because it
is at the centre of the present argument about the ‘Westphalian model’.
II MYTH AND MYTHOLOGY
Like ordinary words, myths are also powerful social productions, often themselves
expressed through language, which provide a shared explanatory structure for
substantial areas of socially constructed reality. In the last century and a half, myths
and mythology have been the subject of numerous scholarly works in different
disciplines,2 7 including not only theology and philosophy, but also psychology,
anthropology, semantics, literary criticism, sociology, and political science.28
26
Myths may be classified according to their topics, based on what they are about, although any
such attempt is somewhat dubious as the categories are not mutually exclusive and the borders
between them remain vague. Generally speaking, however, one can identify the following five
types of myth: (i) aetiological myths, concerning the origin of things; (ii) eschatological
myths, about the final end of things; (iii) soteriological myths, pertaining to momentous saving
and salvation; (iv) ritual myths, combining rites with narratives; and, (v) heroic myths, relating
to accounts of glorious deeds and accomplishments: see M S Day, The Many Meanings of
Myth (1984) 21-27. Aetiology (spelt ‘etiology’ in American English) is interested in the
beginning of things and the reason for things: see E Thomas Lawson, ‘The Explanation of
Myth and Myth as Explanation’ (1978) 46 J American Academy Rel 507. Many authors have
in fact restricted mythology to origin myths − also referred to as ‘myths of beginnings’ or
‘creation-myths’. The aetiological category would include: (a) theogonic myths, pertaining to
the origin of gods; (b) cosmogonic myths, concerning the origin of the world; and, (c)
anthropogonic myths, relating to the origin of human kind.
27
See M I Steblin-Kamenskij, Myth (1982) 21; J Waardenburg, ‘Symbolic Aspects of Myth’ in
A M Olson (ed), Myth, Symbol, and Reality (1980) 41, 60-61.
28
See, for instance, F W J von Schelling, Philosophie der Mythologie (1857) reprinted in M
Schröter (ed), Schellings Werke (5th ed, 1959) 1; F M Müller, ‘On the Philosophy of
Mythology’ in F M Müller, Introduction to the Science of Religion (1873) 335; J G Frazer, The
Golden Bough − A Study in Comparative Religion (1890) 2 vols; S Freud, Die Traumdeutung
(1900); É Durkheim, The Elementary Forms of the Religious Life − A Study in Religious
Sociology (Joseph Ward Swain trans, 1915); J E Harrison, Mythology (1925); B Malinowski,
Myth in Primitive Psychology (1926) reprinted in B Malinowski, Magic, Science and Religion,
and Other Essays (1955); L Lévy-Bruhl, La mythologie primitive − Le monde mythique des
Australiens et des Papous (2nd ed, 1935); S H Hooke (ed), Myth and Ritual − Essays on the
Myth and Ritual of the Hebrews in Relation to the Culture Pattern of the Ancien East (1933);
E Cassirer, Language and Myth (1946); A W Watts, Myth and Ritual in Christianity (1953); C
Lévi-Strauss, ‘The Structural Study of Myth’ (1955) 68 J American Folklore 428, reprinted in
C Lévi-Strauss, Structural Anthropology (1972) 206, [hereinafter Structural Anthropology]
and also in the original C Levi-Strauss, Anthropologie structurale (1958) 227; [hereinafter
Anthropologie structurale] P Wheelwright, ‘The Semantic Approach to Myth’ (1955) 68 J
American Folklore 473; N Frye, Anatomy of Criticism − Four Essays (1957); R Graves, The
Greek Myths (1958); C G Jung, Man and His Symbols (1964); P Gay, The Enlightenment: An
Interpretation − The Rise of Modern Paganism (1967); P Ricoeur, The Symbolism of Evil
(1969); G S Kirk, The Nature of Greek Myths (1974); J Campbell, The Masks of God: Creative
Mythology (1974); G W Egerton, ‘Collective Security as Political Myth: Liberal
Internationalism and the League of Nations in Politics and History’ (1983) 5 Int’l History Rev
496; I Strenski, Four Theories of Myth in Twentieth Century History− Cassirer, Eliade, Lévi-
The term ‘mythology’ combines the Greek ‘mûthos’ and ‘lógos,’ both of which
originally referred to the ideas of ‘speech’ and ‘story’.29 In its earliest sense, mûthos
was the thing spoken, uttered by the mouth.3 0 Only later did it come to connote
‘speech’ and, with Herodotus in the 5th century BC, mûthos was relegated to
fictitious narrative.3 1 For its part, lógos (relating to ‘légein’) denotes demonstrable
facts, formal conceptualisation, the rational explanation of things.32 When lógos
evolved to the sense of logical reasoning, however, mûthos became somewhat
problematic − ‘Mythos came to be seen not as a relevant presentation of the world
but as simply a story which has an emotional effect on listeners and thus not a
decisive account (logos)’.33
This opposition between mûthos as story-telling and fiction, on the one hand, and
lógos as rational explanation, on the other, remains relevant today and explains that,
in everyday usage, a myth is often taken to involve an imagined, untrue account.3 4
As a result, works on myth invariably contain the caveat according to which one
must not confuse the popular, pejorative sense of the term ‘myth’ as a synonym for
metaphor, falsehood and distortion, with the scholarly and technical sense which
considers myths as valid and true within the shared consciousness of a society.3 5
Similarly, here, it is the allegorical value and the semiotic significance of myths that
interest the present study.36
Strauss and Malinowski (1987); P Hegy, Myth as Foundation for Society and Values − A
Sociological Analysis (1991).
29
See, generally, H Levin, ‘Some Meanings of Myth’ in H A Murray (ed), Myth and
Mythmaking (1960) 103.
30
See P Stambovsky, Myth and the Limits of Reason (1996) 32; T F Hoad (ed), The Concise
Oxford Dictionary of English Etymology (1986) 307.
31
See J P Vernant, Myth and Society in Ancient Greece (trans from the French by Janet Lloyd,
1979) 186ff.
32
See J A K Thomson, The Art of the Logos (1935) 17-19; Stambovsky, above n 30, 33-34;
Hoad, above n 30, 270.
33
L J Hatab, Myth and Philosophy: A Contest of Truths (1990) 334, n 30. See also W G Doty,
Mythography − The Study of Myths and Rituals (1986) 3, who wrote that, ‘logos gained the
sense of referring to those words making up doctrine or theory, as opposed to mythos for those
words having an ornamental or fictional, narrative function. The outcome of this development
was that the mythological came to be contrasted with logic (the logos-ical) and later with
“history” in the sense of an overview or chronicle of events.’
34
See C G Flood, Political myth: A theoretical introduction (1996) 6. See also Vernant, above, n
31, 186, who wrote: ‘The concept of myth we have inherited from the Greeks belongs, by
reason of its origins and history, to a tradition of thought peculiar to Western civilisation in
which myth is defined in terms of what is not myth, being opposed first to reality (myth is
fiction) and, secondly, to what is rational (myth is absurd).’
35
For instance, see E Leach, Lévi-Strauss (1970) 54, who explained that, ‘the special quality of
myth is not that it is false but that it is divinely true for those who believe, but fairy-tale for
those who do not’. See also, A Dundes, ‘Introduction’ in A Dundes (ed), Sacred Narrative −
Readings in the Theory of Myth (1984) 1; Doty, above n 33, 7-8.
36
See E Cassirer, The Myth of the State (1946) 45, who makes the point as follows: ‘Myth is not
only far remote from this empirical reality; it is, in a sense, in flagrant contradiction to it. It
seems to build up an entirely fantastic world. Nevertheless even myth has a certain “objective”
aspect and a definite objective function. Linguistic symbolism leads to an objectification of
sense-impressions; mythical symbolism leads to an objectification of feelings.’
The truth of the matter is that mythology constitutes one of the ways that society
may explain itself to itself. Society can use aetiological myths (that is, origin myths)
to explain its genesis to itself, thus building a belief-system about the whens,
wheres and hows of its becoming and its being.3 7 Further, similar to ordinary words,
myths are involved both passively and actively in reality, reflecting but also
inventing dynamic structures within social consciousness.3 8 Therefore, aetiological
myths like the myth of Westphalia would not only represent reality, but would also
create and transform reality through the human mind, within the shared
consciousness of society.39
It follows that the very-large-scale myth of Westphalia is liable to have a very-

large-scale social effect, as the incontestably true legal basis of the present
international state system. In examining this myth, the historical facts and events
which the linguistic sign originally represented/created before it became a mythical
sign will be scrutinised to show that the mythical reality for which it now stands is
substantially remote from the initial material reality. The extraordinary social power
that the Westphalian myth has demonstrated in spite of such equivocal historical
basis, especially in relation to the idea of sovereignty and the making of
international law (including the International Criminal Court), will also be
considered.
III THE ‘WESTPHALIAN MODEL’ OF INTERNATIONAL LEGAL ORDER
The following discussion will support the hypothesis that Westphalia is a myth
through a three-part analysis. First, the social organisation and the transcendental
political entities in the Middle Ages, as well as the dynamics at work in Europe and
the events that led to the Thirty Years’ War, will be considered. Second, the actual
agreements reached in Westphalia will be analysed to ascertain their main objects
and material provisions, which have nothing to do with the creation of a state
system. Finally, the period following 1648 will be examined to assess whether or
not, as an aftermath of the Peace, the universal institutions disappeared in favour of
distinct separate polities.
37
See Flood, above n 34, 35, who wrote: ‘Myths offer charters, warrants, validations,
legitimations, and authoritative precedents for beliefs, attitudes, and practices in any important
domain of social existence’.
38
See Malinowski, above n 28, 23: ‘Myth fulfills in primitive culture an indispensable function:
it expresses, enhances, and codifies belief; it safeguards and enforces morality; it vouches for
the efficiency of ritual and contains practical rules for the guidance of man. Myth is thus a vital
ingredient of human civilization; it is not an idle tale, but a hard-worked active force; it is not
an intellectual explanation or an artistic imagery, but a pragmatic charter of primitive faith and
moral wisdom.’ [emphasis added].
39
See Doty, above n 33, 44, who wrote: ‘Since Malinowski’s time, we operate with a broader
perspective: essentially we may differentiate between models of society, setting out in a
Durkheimian sense a particular mirror image of the culture, and models for society, as when
the model makes visible the ideal standards to which a society aspires.’ [emphasis in original]
See also C Kluckhohn, ‘Myths and Rituals: A General Theory’ (1942) 35 Harvard Theological
Rev 45, 64-66.
A From the Barbarian Invasions to the Thirty Years’ War
After the collapse of the Western Roman Empire in 476,40 most territories in Europe
were in a chaotic political status because of the so-called barbarian invasions.4 1 The
separate communities constituted segmented societies42 characterised by a
heteronomous form of social organisation.43 At the time, individuals had different
rights and obligations, which could overlap and conflict since the decentralised
feudal structure was not based on a strictly linear hierarchy.44 As Daniel Philpott put
it: ‘Feudal lines of obligation resembled a system of arteries in a body, not a
pyramid with an apex’.45
Furthermore, the vassalage system,4 6 which provided land in exchange for services,
meant that subordinates could acquire considerable resources and corresponding
power.47 The medieval ruling structure ‘was an inextricably superimposed and
tangled one, in which different juridical instances were geographically interwoven
and stratified, and plural allegiances, asymmetrical suzerainties and anomalous
enclaves abounded’.48 It is not until the second half of the Middle Ages, starting in
the 11th century, that some monarchs began to develop a more organised form of
government.49
40
See, on the end of the Roman Empire, C G Starr, A History of the Ancient World (4th ed,
1991) 694 ff.
41
See, generally, F L Ganshof, L’histoire des relations internationale (1953) vol 1, 5-9.
42
Segmentation was at various stage in European communities, with pre-conquest England’s
decentralised governance, the Anglo-Norman Kingdom relatively integrated, the German area
and its fundamental duchy divisions, and the French kingdom’s theoretical centralisation; see
F H Hinsley, Sovereignty (2nd ed, 1986) 61-62.
43
On heteronomous systems, see J G Ruggie, ‘Continuity and Transformation in the World
Polity: Toward a Neorealist Synthesis’ in R O Keohane (ed), Neorealism and its Critics (1986)
131, 141-143. Essentially, heteronomy bases the authority of polities on the functions fulfilled,
not on the territory where the authority is exercised.
44
See M Fischer, ‘Feudal Europe, 800-1300: Communal Discourse and Conflictual Practices’
(1992) 46 Int’l Org 427, 449, who wrote: ‘[T]he legal institutions of vassalage, dependency,
servitude, and fief organized feudal society into a highly heteronomous network of mutual
obligations and shared rights.’ See also B de Jouvenel, Sovereignty − An Inquiry Into the
Political Good (1997) 206-206; J A Camilleri, ‘Rethinking Sovereignty in a Shrinking,
Fragmented World’ in R B J Walker and S H Mendlovitz (eds), Contending Sovereignties −
Redefining Political Community (1990) 13.
45
Philpott, above n 19, 79.
46
On the legal institution of vassalage, see F L Ganshof, Feudalism (Philip Grierson trans, 1952)
63-95; M Bloch, Feudal Society (1965) vol 1, 218-230; J S Critchley, Feudalism (1978) 30-55.
47
On the power dimension of the vassalage system, see F de Coulanges, Histoire des institutions
politiques de l’ancienne France (1892) vol 6, 703ff.
48
P Anderson, Lineages of the Absolute State (1974) 37-38.
49
See, generally, G Clark, Early Modern Europe from about 1450 to about 1720 (1957) 28; M
Wilks, The Problem of Sovereignty in the Later Middle Ages − The Papal Monarchy with
Augustinus Triumphus and the Publicists (1963) 233f; J R Strayer, On the Medieval Origins of
the Modern State (1970) 26-36; J Anderson and S Hall, ‘Absolutism and Other Ancestors’ in J
Anderson (ed), The Rise of the Modern State (1986) 21, 25-28.
1 Christendom
This period also saw most of these polities getting together in a common Christian
community, known as the Christendom.50 This spiritual union encouraged and
facilitated contacts and, with the martial energy of the Crusades, was the catalyst to
a profound social transformation of almost all Western Europe.51 It also brought
two new powerful actors to the forefront of European politics52 the Pope and the
Emperor. Both aspired to the throne of the civitas Christiana,5 3 which entailed an
authority superior to all other rulers.54 This was said to constitute the ‘greatest
attempt of all time at supranational organisation in Europe’.55 The co-existence of
these two transcendental political entities, however, was never entirely peaceful and
amicable.
When the Roman Empire in the West resumed in 800,5 6 Charlemagne (also known
as Karl the Great) seemed to acknowledge the Papacy’s authority.57 After the
Treaty of Verdun in 843,58 however, the new Holy Roman Emperor began to
challenge the universal authority of the Pope.5 9 The latter defended himself with the
two swords doctrine,60 according to which God delegated Its power over both
50
See Philpott, above n 19, 78: ‘The Respublica Christiana comprised all Christians, whether
they lived in Europe or abroad in the Holy Land’.
51
See T A Walker, A History of the Law of Nations (1899) vol 1, 87, who wrote: ‘The Crusades
brought a social revolution.’ He identified six areas where the Christendom’s fight over the
Holy Land influenced the development of the European fabric. They include: (i) the shifting of
baronial war effort from private combats to foreign conflicts; (ii) the creation of great centres
of political power, such as the cities of Northern Italy; (iii) the increase of the authority of the
Papacy, which was militant abroad but peacemaker at home; (iv) the lessons in Saracenic
civilisation that the Crusaders brought back with them to the West; (v) the consolidation of the
idea of Christendom unity; and (vi) the sentiment of identity that foreign involvement sparked
with the people at home − see ibid 86-89.
52
See, generally, G Schwarzenberger, A Manual of International Law (4th ed, 1960) vol 1, 4-5.
53
That is, Christian body politic.
54
See J N Figgis, Churches in the Modern State (2nd ed, 1914) 175ff. See also M Zimmermann,
‘La crise de l’organisation internationale à la fin du Moyen Âge’ (1933) 44 RCADI 315, 320;
K Pennington, ‘Law, Legislative Authority, and Theories of Government, 1150-1300’ in J H
Burns (ed), The Cambridge History of Medieval Political Thought − c 350 − c 1450 (1988)
424, 430-436.
55
E N van Kleffens, ‘Sovereignty in International Law’ (1953) 82 RCADI 1, 21.
56
On how the Christian Empire was considered to be the natural and rightful continuation of the
Roman Empire, see J van Kan, ‘Règles générales du droit de la paix − L’idée de l’organisation
internationale dans ses grandes phases’ (1938) 66 RCADI 295, 446 ff; W Ullmann,
‘Reflections on the Medieval Empire’ (1964) 14 Transactions Royal Hist Soc (5th) 89, 95-103.
57
In fact, the Pope, who crowned Charlemagne, traded his support for the re-establishment of the
Roman Empire in exchange for the recognition of the Church’s authority.
58
Charlemagne’s only successor, Louis the Pious, died in 840 and with him the Carolingian
Empire. After some years of unrest, the Treaty of Verdun divided the Empire into three parts
but, given that there was only one imperium, the crown was shifted around for the first few
decades. Germanic pre-eminence was finally asserted in 881.
59
On the struggles between the Pope and the Emperor, see J Bryce, The Holy Roman Empire
(4th ed, 1873) 153-166.
60
This contention was first forcefully propounded in the 11th century by Pope Gregory VII
against Emperor Henry IV, who was even excommunicated. On Gregory VII’s ambitions of
spiritual and temporal61 spheres directly to the Papacy.6 2 The Emperor replied with
formulas supporting his supreme secular authority over the communitas
communitatum.6 3 He could not deny the divine origin of authority, but rather argued
that God had equally distributed spiritual and temporal powers and that the Emperor
directly received the secular sword.64
In short, as Philip Allott Cartesianly explained, the medieval
European society [was] the scene of a structure-system struggle in two dimensions −

horizontal, between Papacy and German Empire; vertical between Papacy/German
Empire, on the one hand, and the countless subordinate civil societies of Europe, on
the other hand.65
From the point of view of the monarchs, therefore, the struggle for power66 was on
two fronts: (i) within, vis-a-vis the vassals and the people; and, (ii) without, vis-a-
vis the Pope and the Emperor.67
supremacy over both spiritual and temporal spheres, see C H McIlwain, The Growth of
Political Thought in the West − From the Greeks to the End of the Middle Ages (1932) 217-
221.
61
The Pope’s claim of supremacy over secular matters was founded on various texts of the Holy
Bible, New Testament, most notably in the Book of Matthew, 16:19, which quotes Jesus Christ
saying: ‘I will give you the keys to the kingdom of heaven; whatever you bind on earth will be
bound in heaven, and whatever you loose on earth will be loosed in heaven’. This statement is
repeated at Matthew, 18:18. See also, generally, W Ullmann, Principles of Government and
Politics in the Middle Ages (2nd ed, 1966) 32ff; Wilks, above n 49, 171-174.
62
The Papal authority was legally based on the so-called dictatus papae, that is, official juridical
statements of the Pope. Theoretically, he enjoyed full universal legislative and judicial power,
including to adjudicate disputes between rulers, to repudiate royal statutes or customs contrary
to divine law, and even to depose monarchs guilty of mortal sins. See Ullmann, ibid 87ff.
63
That is, community of communities.
64
For instance, the following “Declaration of Imperial Independence” was made by Emperor
Ludwig IV in 1338: ‘Therefore, [...] with the counsel and assent of the Electors and other
princes of the Empire, We declare that the imperial dignity and power are derived immediately
from God alone; and that, by the law and ancient approved custom of the Empire, when
anyone is elected Emperor or king by the imperial electors, unanimously or by majority, at
once by the mere fact of election he is to be considered and entitled very King and Emperor of
the Romans; [...] nor does he need the approbation, confirmation, authority or consent of the
Pope or the Apostolic Sea or of any other person’; see R G D Laffan (ed), Select Documents of
European History, vol.1, 800-1492 (1930) 149.
65
P Allott, ‘Self-Determination − Absolute Right or Social Poetry?’ in C Tomuschat (ed),
Modern Law of Self-Determination (1993) 177, 184-185.
66
See P Allott, Eunomia − New Order for a New World (1990) 66, who explained the nature of
the struggle of power in any type of society as follows: ‘Human beings and their societies are
locked in a necessary struggle of the one and the many, as each empowers the other by
disempowering itself, as each empowers itself by disempowering the other’.
67
See R Aron, Peace and War − A Theory of International Relations (Richard Howard and
Annette Baker, trans 1966) 738, who wrote: ‘Absolute sovereignty corresponded to the
ambition of kings eager to free themselves from the restriction Church and Empire imposed
upon them, medieval residues. At the same time, it permitted condemning the privileges of
intermediate bodies: feudal lords, regions, cities guilds − privileges which no longer had any
basis if the sovereign’s will was the unique source of rights and duties.’ See also G Andrassy,
‘La souveraineté et la Société des nations’ (1937) 61 RCADI 637, 646-647; A Truyol Serra,
2 European chessboard
Eventually, the interaction of the different polities in both religious and political
fields, as well as the developments in organisation and governance, allowed
monarchies to gain a leading position on the European political chessboard. It shall
become clear, however, that this slow process began several centuries before, and
cumulated a century-and-a-half after, the Peace of Westphalia in 1648.
Indeed, despite continuous efforts until the 13th century to expand its authority, the
Papacy was never fully recognised by some powerful monarchies in Europe. For
instance, France and Spain never accepted feudal vassalage vis-a-vis the Pope and
England repudiated Papal overlordship in 1366.6 8 Further, the Great Schism of the
West in the Christian Church (1378-1417) considerably weakened the authority of
the Pope.69 Then, in 1517, Martin Luther nailed his 95 theses to the door of the
Schlosskirche in Wittenberg, setting in motion the forces of the Reformation.7 0 His
ideas, and those of John Calvin, spread rapidly throughout the numerous German
principalities, as well as to Sweden, the Netherlands, France, England.71 The
Protestant political tenets, which favoured secular governance,7 2 constituted the
‘Souveraineté’ (1990) 35 Archives Philo D 313, 316-317, who noted: ‘On sait que l’idée
moderne de l’État s’est imposée par une guerre sur deux fronts, à savoir, celui de l’opposition
aux prétentions universalistes de la Papauté et de l’Empire, et celui de la réduction de
l’enchevètrement des pouvoirs du système féodal.’
68
See H Steinberger, ‘Sovereignty’ in R Bernhardt (ed), Encyclopedia of Public International
Law (1987) vol 10, 397, 398.
69
Before the Council of Constance, which ended the Great Schism of the West in 1417, several
popes claimed to be the legitimate representant of the Papacy. See K C Cole, ‘The Theory of
the State as a Sovereign Juristic Person’ in W J Stankiewicz (ed), In Defense of Sovereignty
(1969) 86, 88, who wrote: ‘When, finally, the schism within the religious community occurred,
it became evident that the old order was doomed.’ See also J Canning, A History of Medieval
Political Thought − 300-1450 (1996) 176-184; M Wight, Systems of States (1977) 131-133.
70
See, generally, M Boegner, ‘L’influence de la Réforme sur le développement du droit
international’ (1925) 6 RCADI 241; R A Brand, ‘External Sovereignty and International Law’
(1994-95) 18 Fordham Int’l LJ 1685, 1688. See also J B Elshtain, Women and War (1987)
136, who wrote: ‘Luther prepares the way for the political theology that underlies the
emergence of the nation-state’.
71
Certainly the most notorious case of monarchial Protestant disengagement from the authority
of the Papacy was that of King Henry VIII of England who used the Pope’s refusal to grant an
annulment for his marriage to Catherine of Aragon as a political justification to elevate himself
to Supreme Head of the Church of England, thus acquiring spiritual authority in addition to
political power − legally accomplished through the Act of Supremacy, 1534. See J
Goldsworthy, The Sovereignty of Parliament − History and Philosophy (1999) 48ff; N Davies,
Europe − A History (1996) 490ff; G R Elton, Reform and Reformation − England 1509-1558
(1977) 199-200.
72
At that time, Francisco de Vitoria notoriously argued against the Pope’s claim of temporal
jurisdiction above all princes in the first two lectures of his collection of thirteen Relectiones,
first published in 1557 − see F de Vitoria, Relectiones Theologicae Tredecim Partibus (1587)
1ff and 60ff. Likewise, in the fifth essay, dealing with the Spanish authority over the Indians in
the new world, the great professor of Salamanca University expressed his unequivocal view
that the Pope was not the temporal master of the world − see ibid 164ff.; and the French
translation by M Barbier, F de Vitoria, Leçons sur les Indiens et sur le droit de la guerre
(1966) 46ff. See also, generally, A Nussbaum, A Concise History of the Law of Nations (1950)
coup de grâce for the Pope’s plenitudo potestatis.73
With respect to the Holy Roman Empire, no overall authority was ever fully
secured in Europe. In fact, even before the Great Interregnum (1254-1273),74 the
character and the scope of Imperial power began to be challenged. By the 14th
century, authority over secular matters had ceased to be considered the exclusive
privilege of the Emperor.75 His de jure overlordship remained − even invigorated
under Charles V − but legists like Bartolus7 6 admitted that principes superiores non
recognoscentes;77 Baldus formulated this plurality in terms of rex in regno suo est
imperator regni sui.78 The imperium’s dismissal was more categorical in certain
countries − Spain never formally recognised Imperial power; France severed its
feudal ties with the Emperor after 973; and England’s vassalage vis-a-vis the
Empire was terminated in the 13th century.79
However, it seems to be the consolidation of power under autonomous rulers in

England and France, as well as the emergence of free cities in Northern Italy,8 0 that
effectively replaced the ideal of a universal Christendom with the idea of distinct
80ff.
73
That is, fullness of power. On this idea, see A P d’Entrèves, The Notion of the State – An
Introduction to Political Theory (1967) 97.
74
The Great Interregnum refers to a period of roughly 20 years when, for all practical purposes,
the throne of the Holy Roman Empire was vacant. Following the death of Emperor Frederick
II, German princes took advantage of the weak Hohenstaufen dynasty and elected a series of
what proved to be ineffectual Imperial rulers. This era ended in 1273, when Count Rudolph of
Habsburg was elected Emperor following pressure by Pope Gregory X, who was seeking
imperial support for a new crusade.
75
See Pennington, above n 54, 432-433; Walker, above, n 51, 90, who wrote: ‘The Empire and
the Pontiff had alike failed to fulfil their mission. The Emperor at no time fully responded to
his call. Endowed with an unique style, held the natural protector and leader of Christendom,
Divine Viceregent in things temporal, the rightful source of the royal title, the convoker, at
least concurrently with the Pope, of oecumenical councils, he failed to constitute himself
international arbiter and pacificator mundi.’ [footnotes omitted]
76
On the work of these legists and their influence on medieval thoughts, see J N Figgis, The
Divine Right of Kings (2nd ed, 1922) 55-56; F S Ruddy, International Law in the
Enlightenment – The Background of Emerich de Vattel’s Le Droit des Gens (1975) 6-12. See
also, generally, P Guggenheim, ‘La souveraineté dans l’histoire du droit des gens – Les
conceptions des glossateurs et des commentateurs’ in Mélanges offerts à Henri Rolin (1964)
134.
77
That is, princes do not acknowledge any superior.
78
That is, a king in his own kingdom is emperor of his realm. On this doctrine in general, see W
Ullman, ‘The Development of the Medieval Idea of Sovereignty’ (1949) 64 English Hist Rev
1, 5-7.
79
See Steinberger, above n 68, 398. Also worth noting is that Francisco de Vitoria’s lecture on
the Spanish authority over the Indians in the new world demonstrated that, no more than the
Pope, the Emperor was not the master of the whole world according to neither natural, divine
nor human law – see de Vitoria, above n 72, 164ff; Barbier, above n 72, 36ff.
80
On the authority enjoyed by the rulers of France, England and the Italian free cities, see van
Kleffens, above n 55, 22-25. See also Philpott, above n 19, 80, who concluded: ‘By the eve of
the Reformation in 1517, monarchs in Britain, France, and Sweden had established supremacy
over the Church and other territorial rivals, while in Italy, a small system of sovereign states,
sealed from Europe by alpine partitions, had survived for a century.’
separate polities enjoying full autonomy over their territories.81
3 Emergence of independent polities
Chronologically, the Northern cities of the Italian peninsula – Genoa, Florence,

Pisa, Venice – were the pioneers in reaching a certain system of organisation during
the 11th and 12th centuries, which fell within the general enthusiasm of the
Renaissance.82 The querelles between the Pope and the Emperor considerably
helped the establishment and survival of these relatively self-sufficient polities.8 3 At
the beginning of the 14th century, it was recognised that the Northern Italian cities
could not be conquered. By the 16th century, however, their strength had
comparatively decreased because of their opponents’ enhanced military capacity
and the change in trade routes.84
England was the first large geographic area to reach a centralised form of
governance. Following the Great Conquest in 1066, the English segmented societies
embarked upon the process towards unity.8 5 With the help of the King’s courts
based on the common law8 6 and of representative assemblies that led to
Parliament,87 the loyalty of the people moved from the local authorities to the
monarchy.88 The aristocracy-initiated movement of protest that brought the Magna
Carta in 1215 did not challenge the centralised institutions per se;89 rather, it sought
some basic guarantees of protection from the King, especially with regard to
property rights.90 Although the unity of the English royal power was later shaken by
81
See H J Laski, The Foundations of Sovereignty and Other Essays (1921) 12-13; G Gidel,
‘Droits et devoirs des Nations – La théorie classique des droits fondamentaux des États’ (1925)
10 RCADI 537, 546-547; and, generally, H Spruyt, The Sovereign State and Its Competitors
(1994).
82
See, generally, P M Hohenberg and L H Lees, The Making of Urban Europe, 1000-1950
(1985) 59-73; G Mattingly, Renaissance Diplomacy (1955) 55-63; J Burckhardt, The
Civilization of the Renaissance in Italy – An Essay (2nd ed, 1945) 39ff.
83
See A P Sereni, The Italian Conception of International Law (1943) 7-9.
84
See Walker, above n 51, 139; C Tilly, Coercion, Capital, and European States, AD 990-1990
(1990) 64-66.
85
See Strayer, above n 49, 36-48; R Lansing, Notes on Sovereignty – From the Standpoint of the
State and of the World (1921) 16-18.
86
See, generally, K Zweigert and H Kötz, An Introduction to Comparative Law (T Weir trans,
3rd ed, 1998) 182-187.
87
See A F Pollard, The Evolution of Parliament (1920) who opined that the development of the
parliamentary system in England contributed immensely to the idea of sovereignty. The author
wrote: ‘The crown had never been sovereign by itself, for before the days of parliament that
was no real sovereignty at all: sovereignty was only achieved by the energy of the crown in
parliament, and the fruits of conquest were enjoyed in common’; ibid 230.
88
See Krasner, above n 19, 254.
89
See P Allott, ‘The Courts and Parliament: Who Whom?’ (1979) 38 Cambridge LJ 79, 89, who
wrote: ‘In the turbulent political history of medieval England, such events as the baronial
resistance to John in the years up to 1215 and the coups of 1399 and 1485 were not structural
discontinuities in the manner of modern revolutions.’
90
Indeed, several provisions of the Magna Carta (for instance, articles 9, 27, and 52) had nothing
to do with fundamental rights or civil liberties, but related directly or indirectly to property
rights that the barons wanted to shield from the monarch’s arbitrary power. See the English
the War of the Roses, it remained largely independent from any higher authority.91
The French communities proceeded more slowly towards the organisation of central
ruling under the authority of a monarch.92 Centralisation was accomplished only
gradually by the appointment of the King’s representatives in the provinces, instead
of being imposed from above by the royal administration, as in England.93 France’s
judiciary did not even apply uniform laws9 4 – the South constituted the pays de droit
écrit95 and the North was considered the pays de droit coutumier.96 The Hundred
Years’ War increased the King’s power as people sought protection and guidance
from the monarch.97 The war effort also accredited ‘a permanent tax, which made
possible a standing army and the development of an executive to carry out the royal
will’.98
Even in German areas, in spite of the actual overlordship enjoyed by the Emperor,
the seed of monarchical organisation was planted long before the Peace of
Westphalia.99 With respect to secular matters, increasingly substantial political
concessions were gradually granted in favour of the principalities.10 0 As regards
religious matters, several powerful German Princes took the Protestant side in the
emerging conflicts and soon revolted against the Catholic Empire.10 1 These turmoils
were settled with the Peace of Augsburg in 1555,102 between the Emperor and the
Protestant Princes, which consecrated the rule of cuius regio eius religio.10 3
Augsburg largely contributed to direct the focus towards the separate polities within
the Empire.104
translation of the text in Appendix 6 of J C Holt, Magna Carta (1992) 449.

91
See, generally, K H F Dyson, The State Tradition in Western Europe – A Study of an Idea and
Institution (1980) 36-44.
92
See G Zeller, L’histoire des relations internationales (1953) vol 2, 18-19.
93
See Strayer, above n 49, 48-56.
94
See, generally, Zweigert and Kötz, above n 86, 75-80.
95
That is, country of written law.
96
That is, country of customary law.
97
See Daillier and Pellet, above n 6, 48-49.
98
de Jouvenel, above n 44, 213.
99
See, generally, F Hertz, The Development of the German Public Mind – A Social History of
German Political Sentiments Aspirations and Ideas (1957 and 1962) 2 vols.
100
See below at notes 188-192 and accompanying text.
101
See Walker, above n 51, 143: ‘The German princely supporters of the Reformed doctrines
united in the League of Schmalkalden (1531), but hesitated and wavered, and at length the
Imperial victory of Mühlberg (1547) seemed to ring the death-knell of their hopes. Then,
however, Maurice of Saxony, cool-headed and scheming, threw off the mask, and the flight of
the Emperor through the Innsbruck pass with the subsequent Treaty of Passau (1552)
proclaimed the forceful revival of the Lutheran cause.’
102
The Peace of Augsburg recognised and legitimised the Protestant religions (Lutheran and
Calvinist) and gave to the ruler the right to determine the religion of its subjects. See J G
Gagliardo, Germany under the Old Regime, 1600-1790 (1991) 16ff; Jackson, above n 19, 440.
103
That is, whose the region, his the religion.
104
See A B Murphy, ‘The Sovereign State System as Political-Territorial Ideal – Historical and
Contemporary Considerations’ in T J Biersteker and C Weber (eds), State Sovereignty as
Social Construct (1996) 81, 86; Redslob, above n 10, 216. See also C V Wedgwood, The
Thirty Years War (1944) 42, who wrote: ‘This extraordinary compromise [Augsburg] saved
4 Conflicts of religion and politics
This temporary truce in the European religious chaos and the peaceful coexistence
it brought deteriorated over the next fifty years.105 Especially during the reign of
Emperor Rudolf II (1576-1612) worship restrictions were progressively
reimposed.106 In fact, after the troubles in Donauwörth,107 the Treaty of Augsburg
was invoked as the basis for the resurgence of Catholicism. By the beginning of the
17th century, both camps had their coalitions of armed force108 – the Evangelical
Union (est 1608), a Protestant defensive alliance;109 and, the Catholic League (est
1609), a similar organisation for Catholics.110 Although the majority of Princes were
not in favour of war, some were willing to take advantage of any opportunity to
increase their land base and political power.
The rivalries of the time, however, did not stop at the German borders.111 England
and the United Provinces of the Netherlands allied with the Evangelical Union and
were ready to support its cause; in the North, both Denmark and Sweden had
ambitions to control the strategic Baltic region; Catholic Spain was preparing to
reconquer the Protestant Netherlands; and, France was opposed to the hegemonic
aspirations of the Emperor-Spanish King coalition.112 This large number of
increasingly powerful actors in Europe, in addition to the multilayered system of
political authorities, as well as the religious dimension of the different polities,
made a violent solution of the situation virtually inevitable.
The spark that ignited the fire came from Bohemia in 1618 following the so-called
Defenestration of Prague,113 which prompted a revolt against the Emperor and the
the theory of religious unity for each state while destroying it for the Empire.’
105
See Philpott, above n 19, 81, who stated: ‘But Augsburg did not last. The settlement was
packed with endless clauses and legal arcana, eliciting so much mutual dissatisfaction that
Catholic and Protestant princes continually took up arms to dispute the succession of a
neighboring prince of the rival religion. Over the following generations, religious war raged
between a continually speading Protestantism and the Counter Reformation, a revival of
Catholicism across Europe whose most fervid participants fought for the eradication of the
Protestant heresy and a restored Christendom.’ [footnotes omitted] See also, generally, D
Maland, Europe at War – 1600-1650 (1980) 12-18; J Elliott, ‘War and Peace in Europe, 1618-
1648’ in K Bussmann and Schilling (eds), 1648 – War and Peace in Europe (1998) vol 1, 23,
23-24.
106
See Gagliardo, above n 102, 21-23.
107
Pursuant to the Peace of Augsburg, Donauwörth was designated a ‘parity’ city, but later
became overwhelmingly Protestant. Feuds between Lutheran burghers and Catholic monks in
1606-1607 degenerated into street brawls which prompted Emperor Rudolf II to put the city
under an Imperial ban in order to defend the religious rights of the Catholic minority.
108
See Gagliardo, above n 102, 23-24.
109
It included at first Palatinate, Württemberg, Neuburg, Baden, Ansbach, Anhalt and some
Imperial Cities; it was later expended to include Brandenburg, Hesse-Kassel and other Cities.
110
It included Bavaria, various bishoprics of Bavaria, Swabia and Franconia, as well as some
ecclesiastical polities.
111
See E A Beller, ‘The Thirty Years War’ in J P Cooper (ed), The New Cambridge Modern
History (1970) vol 4, 306, 306ff.
112
Ibid. 306.
113
On 23 May 1618, a group of Protestants in Prague invaded the Imperial palace and threw two
Catholic domination. The series of wars that followed are known as the Thirty
Years’ War,114 which is said to have been the most destructive armed conflict in
Europe until the 20th century.115 Originally, the War was primary based on
profound religious antagonism, but these motives only lasted for the first decade of
the conflicts.116 The power politics of the belligerents, which was never absent,
came to finally predominate the main battles,117 which were fought on German soil
between France and Sweden, on the one side, and the Habsburgs and their allies, on
the other.118 The negotiations to end the bloody conflicts took place from 1644 to
1648119 and culminated in the Peace of Westphalia,120 without any decisive victory
by anyone.121
Catholic members of the Bohemian Council out a window, some 70 feet above the ground.
The rarely told aspect of the story, however, is that the officials fell into a pile of manure and
suffered only minor injuries!
114
See, generally, H Sacchi, La Guerre de trente ans, 3 vols (1991); G Parker, The Thirty Years’
War (1984); J V Polišenský, The Thirty Years War (1971); T K Rabb (ed), The Thirty Years’
War – Problems of Motive, Extent and Effect (1964); G Pagès, La guerre de trente ans – 1618-
1648 (1949).
115
According to J Perré, La guerre et ses mutations – Des origines à 1792 (1961) 409, the
German population declined from 21 to 13 million because of the Thirty Years’ War. See also
G Franz, Der Dreissigjährige Krieg und das deutsche Volk (3rd ed, 1961) 47, who estimated
that 40% of the rural and 33% of the urban population of Germany perished as a result of the
War and its aftermath, such as the plague and other epidemics.
116
On the motives behind the conflicts that shifted from religion to politics, see Walker, above n
51, 157, who noted: ‘Christendom mobilised under opposing flags, and the barriers between
people and people and the ties of national allegiance were in the first instance forgotten in the
fervour of religious opinion. When, however, the course of the struggle made it evident that
the two great hostile armies must be finally content to partition the field of battle, and a clear
rule of distribution was looked for, Nationality stepped from behind Religion and asserted
effectual the claims.’
117
See J Burkhardt, ‘The Summitless Pyramid: War Aims and Peace Compromise Among
Europe’s Universalistic Powers’ in K Bussmann and H Schilling (eds), 1648 – War and Peace
in Europe (1998) vol 1, 51.
118
The Thirty Years’ War conflicts are usually divided by historians into four phases, customarily
styled and dated as follows: the Palatine-Bohemian period (1618-1623), ended by the Battle of
White Mountain with a Catholic victory; the Danish period (1624-1629), another Catholic
triumph consecrated by the Treaty of Lübeck; the Swedish period (1630-1635), which saw the
Treaty of Prague officialise an indecisive Catholic victory; and, finally, the French period
(1635-1648), which lead to the Peace of Westphalia. See, generally, Beller, above n 111,
307ff.
119
On the negotiations that led to the settlement of the Thirty Years’ War, from original sources,
see G H Bougeant, Histoire du Traité de Westphalie, ou des Negociations qui se firent à
Munfter & à Ofnabrug (1751) 6 vols; J Le Clerc, Negociations Secretes touchant la Paix de
Munfter et d’Osnabrug (1725 and 1726) 4 vols. See also K Repgen, ‘Negotiating the Peace of
Westphalia: A Survey with an Examination of the Major Problems’ in K Bussmann and H
Schilling (eds), 1648 – War and Peace in Europe (1998) vol 1, 355.
120
It is noteworthy, however, that 1648 did not completely end all armed conflicts in Europe. The
war between France and Spain continued until the Peace of the Pyrenees in 1659. As well, the
war between Sweden and Poland, and that between Sweden and Denmark, only ended in 1660
with the Peace of Olivia and the Peace of Copenhagen. See J Droz, Histoire diplomatique de
1648 à 1919 (1952) 7ff; Wheaton, above n 6, 71; Holsti, above n 7, 41.
121
See Holsti, above n 7, 29, who wrote: ‘The war came to an end not because of any great
commitment to peace in the abstract or because of decisive military victories and defeats.
Rather, the parties exhausted themselves.’
At this stage, the most important point to acknowledge about this analysis of
Westphalia is that, by the 17th century, Europe was no longer dominated by the
Holy Roman Empire or the Papacy.122 The supreme authority in spiritual and
temporal spheres was not exclusively held anymore – assuming it once was– by
transcendental institutions. Instead, distinct separate polities both within and
without the Empire had started to establish a solid foundation based on the idea of
political autonomy.123 This already suggests that, contrary to the general opinion,
what is considered a nouveau régime after 1648 did not come into existence by
enchantment through the stroke of a pen at the bottom of some peace agreements.124
The section that follows will look at the so-called constitutio Westphalica125 by
examining the actual treaty documents, with a view to prove that the orthodoxy
according to which 1648 can be credited for the birth of the modern state system is
unsupported by historical facts, and is hence a myth.
B The Peace of Westphalia
The Peace of Westphalia, formalised on 24 October 1648, was in fact composed of

two separate agreements.12 6 The Treaty of Osnabrück was concluded between two
groups of political entities – on the one hand, the Protestant Queen of Sweden and
her allies and, on the other, the Holy Roman Habsburg Emperor and the German
Princes. The Treaty of Münster, for its part, was also concluded between two groups
– one the one hand, the Catholic King of France and his allies and, on the other, the
Emperor and the Princes.12 7 Thus these agreements were bilateral in nature, which
reflects the practice of the time that had not yet evolved to the making of
122
See G R R Treasure, The Making of Modern Europe, 1648-1780 (1985) 374; J Bryce, Studies
in History and Jurisprudence (1901) vol 2, 82ff ; van Kleffens, above n 55, 38-39; Camilleri,
above n 44, 14.
123
See Walker, above n 51, 84, who wrote: ‘The new Order arose by the positive and negative
establishment of the authority of Feudal Monarchy; by the victory of that Monarchy in the
struggle with baronial disorder, and by the defeat alike of Papacy and of Holy Roman Empire
in the attempt to establish an effective World Sovereignty.’ See also Bryce, above n 59, 340,
who noted that Westphalia ‘did no more than legalize a condition of things already in
existence’.
124
See G Sørensen, ‘Sovereignty: Change and Continuity in a Fundamental Institution’ (1999) 47
Political St 590, 591, who expressed the following view concerning the Peace of Westphalia:
‘The world did not change overnight at a specific point in time; elements of the old system
remained in place for a long period. There was no momentous change from one day to the next
in 1648’. [emphasis added] See also Murphy, above n 104, 109, who made the following
apposite remarks: ‘If the history of state-territorial ideas and practices tells us anything, it is
that changes in arrangements and understandings occur, but that no one era represents a
radical break with the preceding era’. [emphasis added]
125
That is, the Westphalian constitution. See also Daillier and Pellet, above n 6, 50, who spoke of
the ‘Charte constitutionnelle de l’Europe’.
126
However, it was imperative for the participants to achieve a ‘unitary peace’; see Steiger, above
n 12, 444.
127
For the full text of the Osnabrück and Münster Treaties, in both their Latin and English
versions, see C Parry (ed), Consolidated Treaty Series (1969) vol 1, 119 and 270. [hereinafter
Treaty Series] It is the English translation that will be used here, which Parry said is taken
from the General Collection of Treatys; the old English spelling used will be modernised.
multilateral treaties.128
Although the Treaties paid homage to the unity of Christendom,129 it is significant

that they involved numerous polities.13 0 Sweden and France insisted on having the
German Princes as parties to the Peace, a strategy obviously meant to weaken the
position of the Emperor vis-a-vis the Princes. In fact, the Treaties were instruments
not only to bringing peace between the former belligerents, but also to dealing with
constitutional matters within the Empire.131 Indeed, article 70 of the Münster Treaty
declared:
For the greater Firmness of all and every one of these Articles, this present
Transaction shall serve for a perpetual Law and established Sanction of the Empire,
to be inserted like other fundamental Laws and Constitutions of the Empire in the
Acts of the next Diet of the Empire, and the Imperial Capitulation; binding no less
the absent than the present, the Ecclesiastics than Seculars, whether they be the States
of the Empire or not: insomuch as that it shall be a prescribed Rule, perpetually to be
followed, as well by the Imperial Counsellors and Officers, as those of other Lords,
and all Judges and Officers of Courts of Justice.132
This large number of actors from both within and without the Empire133 seem, a
128
See T Meron, ‘The Authority to Make Treaties in the Late Middle Ages’ (1995) 879 American
J Int’l L 1, 6-7. See also, generally, C W Jenks, ‘Les instruments internationaux à caractère
collectif’ (1930) 69 RCADI 448; A D McNair, Law of Treaties – British Practice and Opinions
(1938) 4-6.
129
Towards the end of the Osnabrück Treaty’s preamble, it stated that the parties ‘agreed among
themselves, to the Glory of God, and Safety of the Christian World’; similarly, in the Münster
Treaty, one can read that the agreement was reached ‘to the Glory of God, and the Benefit of
the Christian World’; [spelling modernised] see Treaty Series, 199-200 and 321. See also A
Osiander, The States System of Europe, 1640-1990 – Peacemaking and the Conditions of
International Stability (1994) 27-30, who noted that the rulers’ representatives at the peace
conferences viewed themselves as part of a community based on the Christian religion.
130
The preamble of the Osnabrück Treaty, in fine, stated: ‘[T]he Electors, Princes and States of
the Sacred Roman Empire being present, approving and consenting’; likewise, the Münster
Treaty’s preamble ended: ‘[I]n the presence and with the consent of the Electors of the Sacred
Roman Empire, the other Princes and States’; Treaty Series, 200 and 321. [emphasis in
original] [spelling modernised] As well, there are mentions of the different polities making up
the Empire – some 332 of them – throughout the two Treaties of Westphalia; see McNair,
above n 128, 70. See also Redslob, above n 10, 215-216.
131
See R Lesaffer, ‘The Westphalia Peace Treaties and the Development of the Tradition of Great
European Peace Settlements Prior to 1648’ (1997) 18 Grotiana 71, 71 and 77; C Bilfinger,
‘Les bases fondamentales de la communauté des États’ (1938) 63 RCADI 129, 156, who
wrote: ‘Le Traité de Westphalie, généralement regardé comme la base juridique et positive de
la première période du droit des gens moderne, était, en même temps qu’un traité de droit des
gens, une loi fondamentale constitutionnelle de l’ancien Empire allemand.’
132
Treaty Series, 353. [emphasis added] [spelling modernised]
133
See Holsti, above n 7, 25, who wrote: ‘The congresses [of Westphalia] brought together the
main heterogeneous political units of Europe at that time. There were 145 delegates
representing 55 jurisdictions, including the Holy Roman Empire and all the major kingdoms
except Great Britain [and Russia], as well as significant duchies, margraves, landgraves,
bishoprics, free cities, and imperial cities.’ [footnotes omitted] See also V Gerhardt, ‘On the
Historical Significance of the Peace of Westphalia: Twelve Theses’ in K Bussmann and H
priori, to bear witness to the termination of the Imperial transcendental domination

in Europe.134 However, a proper analysis of Westphalia that concentrates on the
relevant discourse will go beyond this facade and will show that the Peace did not
signal the death toll of the Empire in favour of the German distinct separate polities.
1 Religious issues
First and foremost, building on the acquis from the Peace of Augsburg in 1555,13 5
the main object of the Peace of Westphalia was to establish a regime on religious
practice and denominational matters.136 Although the Treaties did not explicitly
abandon the principle that the monarch could determine the religion of the land,
they nevertheless provided for some constitutional safeguards.137 Indeed, several
provisions were inserted to circumscribe and curtail the Princes’ formerly absolute
authority over the religious sphere.138 The most material one, at Article 5, paragraph
11, of the Osnabrück Treaty, established that a ruler who chose to change his or her
religion could not compel his or her subjects to do the same.139
Also, the Westphalia Treaties formally recognised freedom of conscience for

Catholics living in Protestant areas and vice versa, which included protection for
worship practices and religious education. Article 5, paragraph 28, of the
Osnabrück Treaty thus read:
It has moreover been found good, that those of the Confession of Augsburg [i.e.
Protestants], who are Subjects of the Catholics, and the Catholic Subjects of the
States of the Confession of Augsburg, who had not the public or private Exercise of
their Religion in any time of the year 1624, and who after the Publication of the
Peace shall profess and embrace a Religion different from that of the Lord of the
Territory, shall in consequence of the said Peace be patiently suffered and tolerated,
without any Hindrance or Impediment to attend their Devotions in their Houses and
in Private, with all Liberty of Conscience, and without any Inquisition or Trouble,
and even to assist in their Neighbourhood, as often as they have a mind, at the public
Exercise of their Religion, or send their children to foreign Schools of their Religion,
or have them instructed in their Families by private Masters; provided the said
Vassals and Subjects do their Duty in all other things, and hold themselves in due
Obedience and Subjection, without giving occasion to any Disturbance or
Commotion.140
134
See H Steiger, above n 12, 422.
135
See above n 102.
136
See Pagès, above n 114, 247-249. See also, on the religious practices before and after 1648, S
D Krasner, ‘Sovereignty and Intervention’ in G M Lyons and M Mastanduno (eds), Beyond
Westphalia? – State Sovereignty and International Intervention (1995) 228, 234-236.
137
See A Hobza, ‘Questions de droit international concernant les religions’ (1924) 5 RCADI 371,
377-378.
138
See A W Ward, ‘The Peace of Westphalia’ in A W Ward, G W Prothero and S Leathes (eds),
The Cambridge Modern History (1934) vol 4, 395, 416.
139
Treaty Series, 218-219.
140
See Treaty Series, 228-229. [emphasis in original] [spelling modernised]
As well, such dissenters were not to be ‘excluded from the Community of

Merchants, Artisans or Companies, nor deprived of Successions, Legacies,
Hospitals, Lazar-Houses, or Alms-Houses, and other Privileges or Rights’.141
People living in denominationally mixed cities – Augsburg, Dunckelfpiel, Biberach,
Ravensburg, Kauffbeur – were free to practice their religion without any ‘molest or
trouble’.142
Furthermore, Osnabrück promoted equality between Catholics and Protestants in

the assemblies of the Diet and in other decision-making bodies of the Empire.143 For
example, article 5, paragraph 42, stated: ‘In the ordinary Assemblies of the Deputies
of the Empire, the Number of the Chiefs of the one and the other Religion shall be
equal’.144 Likewise, in judicial procedures at the Imperial Courts, a party could
demand the religious parity of judges.145 These rights afforded to the Lutheran
Protestants (‘Confession of Augsburg’) were also extended to Calvinist Protestants
(the ‘Reformed’).146
2 Territorial settlement
The second object of the Peace of Westphalia concerned territorial settlement,

which turned mainly on the satisfaction of Sweden and France. Sweden’s
traditional claims with respect to the south shore of the Baltic region were given
effect in the Treaty of Osnabrück. Accordingly, Western Pomerania, the islands of
Rügen, Usedom and Wollin, the bishoprics of Bremen and Verdun, and the port of
Wismar passed under the Swedish Crown.14 7 It must be emphasised, however, that
the conveyances were not total – Sweden was to hold these territories as Imperial
fiefs.14 8 Indeed, article 10 of the Osnabrück Treaty repetitively stated that all
transfers were ‘in perpetual and immediate Fief of the Empire’.149 The Swedish
ruler was also to occupy seats in the Diet to represent these regions within the
Empire.
Pursuant to the Treaty of Münster, France was granted territories ‘with all manner
of Jurisdiction and Sovereignty, without any contradiction from the Emperor, the
Empire, House of Austria, or any other’.150 Unlike Sweden, therefore, the French
Crown received full title in, and authority over, most transferred territories,151 which
included the bishoprics of Metz, Toul and Verdun,152 as well as the area known as
141
Article 5, paragraph 28, of the Osnabrück Treaty, ibid 229. [spelling modernised]
142
Article 5, paragraph 24, of the Osnabrück Treaty, ibid 225-227. [spelling modernised]
143
See Ward, above n 138, 414.
144
Treaty Series, 234-235. [spelling modernised]
145
Article 5, paragraph 45, of the Osnabrück Treaty, ibid 237-238.
146
See article 7 of the Osnabrück Treaty, ibid 239-240. [emphasis in original] [spelling
modernised]
147
See article 10 of the Osnabrück Treaty, ibid 244 -249.
148
See Ward, above n 138, 403-404.
149
Treaty Series, 244-247.
150
Article 76, Münster Treaty, ibid 341. [emphasis in original] [spelling modernised]
151
See Ward, above n 138, 404-405.
152
See article 71 of the Münster Treaty, Treaty Series, 340.
Pinerolo.153 The House of Austria’s rights in the region of Alsace were also
conveyed to France,15 4 but not without a substantial qualification. Indeed, article 92
of the Münster Treaty provided:
That the most Christian King shall be bound to leave not only the Bishops of
Strasbourg and Bafle, with the City of Strasbourg, but also the other States or
Orders, Abbots of Murbach and Luederen, who are in the one and the other Alsatia,
immediately depending upon the Roman Empire; the abbess of Andlavien, the
Monastery of St. Bennet in the Valley of St George, the Palatines of Luzelftain, and
all the nobility of Lower Alsatia; Item, the said ten Imperial Cities, which depend on
the Mayory of Haganoc, in the Liberty and Possession they have enjoyed hitherto, to
arise as immediately dependent upon the Roman Empire; so that he cannot pretend
any Royal Superiority over them, but shall rest contended with the Rights which
appertained to the House of Austria, and which by this present Treaty of Pacification,
are yielded to the Crown of France. In such a manner, nevertheless, that by the
present Declaration, nothing is intended that shall derogate from the Sovereign
Dominion already hereabove agreed to.155
As a consequence, although they officially passed under the French Crown, these
parts of the Alsatian territory maintained a sui generis autonomist status based on
some Imperial privileges.156
The treaty provisions relating to religious practice and denominational matters, as

well as those pertaining to the territorial satisfaction of Sweden and France,
undoubtedly represent the two principal objects of the Peace of Westphalia.157 The
parties also formally recognised the United Provinces of the Netherlands158 and
explicitly provided for the independence of the Swiss Confederation,159 which
153
See article 73 of the Münster Treaty, ibid.
154
See article 74 of the Münster Treaty, ibid 340-341.
155
Ibid 345. [emphasis in original] [spelling modernised]
156
See Pagès, above n 114, 258-259. See also Redslob, above n 10, 214, footnote 3.
157
See Holsti, above n 7, 34.
158
At the conclusion of the conflict between the United Provinces and Spain, the latter recognised
the territorial boundaries of the Netherlands in a peace treaty signed on 30 January 1648, also
at Münster. As a consequence, these territories were excluded from the Burgundian Imperial
Circle during the negotiations at Westphalia which, implicitly, legally ratified the Dutch
independence from the Holy Roman Empire. See Polišenský, above n 114, 236-237; G Pagès,
above n 114, 254.
159
Switzerland’s independence was legally consecrated in article 63 of the Treaty of Münster,
which stated: ‘And as His Imperial Majesty, upon Complaints made in the name of the City of
Bafle, and of all Switzerland, in the presence of their Plenipotentiaries deputed to the present
Assembly, touching some Procedures and Executions proceeding from the Imperial Chamber
against the said City, and the other united Cantons of the Swiss country, and their Citizens and
Subjects having demanded the Advice of the States of the Empire and their Council; these
have, by a Decree of the 14th of May of the last Year, declared the said City of Bafle, and the
other Swiss-Cantons, to be as it were in possession of their full Liberty and Exemption of the
Empire; so that they are no ways subject to the Judicatures, or judgments of the Empire, and it
was thought convenient to insert the same in this Treaty of Peace, and Confirm it, and thereby
to make void and annul all such Procedures and Arrests given on this Account in what form
soever;’ see Treaty Series, 337. [emphasis in original] [spelling modernised]
however were already at this point faits accomplis.160
3 Treaty-making power
According to the general view that considers 1648 as a break from the ancien
régime, there is another highly material provision in the agreements which would
epitomise statehood, namely, that dealing with the delegation of power to conclude
treaties.16 1 At article 65, the Treaty of Münster read:
They [the German polities] shall enjoy without contradiction, the Right of Suffrage in
all Deliberations touching the Affairs of the Empire; but above all, when the
Business in hand shall be the making or interpreting of Laws, the declaring of Wars,
imposing of Taxes, levying or quartering of Soldiers, erecting new Fortifications in
the Territories of the States, or reinforcing the old Garisons; as also when a Peace or
alliance is to be concluded, and treated about, or the like, none of these, or the like
things shall be acted for the future, without the Suffrage and Consent of the Free
Assembly of all the States of the Empire: Above all, it shall be free perpetually to
each of the States of the Empire, to make Alliances with Strangers for their
Preservation and Safety; provided, nevertheless, such Alliances be not against the
Emperor, and the Empire, nor against the Public Peace, and this Treaty, and without
prejudice to the Oath by which every one is bound to the Emperor and the Empire.162
Article 8, paragraph 1, of the Osnabrück Treaty was to the same effect.163 The
political entities making up the Empire were thus given the power to independently
make agreements between themselves and with foreign countries. This competence,
however, was explicitly limited by the caveat according to which no such alliance
could be directed against the imperium or be in breach of the Peace of Westphalia
itself. Also significant is that, beside treaty-making, these provisions confirmed to
the Imperial Diet all other powers usually linked with the exercise of supreme
authority over a territory – for example, legislation, warfare, taxation.164
160
See Pagès, above n 114, 254, who wrote as regards the Netherlands and Switzerland: ‘Enfin
divers articles légalisent un état de fait déjà ancien, mais qui n’avait pas encore la garantie
d’un instrument diplomatique.’ [emphasis added] See also F Hertz, The Development of the
German Public Mind – A Social History of German Political Sentiments Aspirations and Ideas
(1962) vol 2, 515; Beller, above n 111, 358; Redslob, above n 10, 214-215; Walker, above n
51, 148.
161
See, for instance, F de Martens, Traité de droit international (1883) vol 1, 116; Gidel, above n
81, 549; Redslob, ibid 215; Holsti, above n 7, 35-36; Osiander, above n 129, 46-47; Philpott,
above n 19, 85.
162
Treaty Series, 337-338. [emphasis added] [spelling modernised]
163
Ibid 241. See also Lesaffer, above n 131, 71.
164
The legislative history of these provisions shows that the parties originally meant to go much
farther in favour of the Princes than what was provided for in the final version of the Münster
Treaty. The proposition suggested by the French delegation on 11 June 1645 was unqualified
and even referred to the idea of sovereignty. Indeed, article 8 of the said proposition, which
was ultimately rejected, read: ‘Que tous lesdits Princes & Etats en général & en particulier
seront maintenus dans tous les autres droits de Souveraineté qui leur appartiennent, &
spécialement dans celui de faire des confédérations tant entre eux qu’avec les Princes voisins,
pour leur conservation & sureté;’ [emphasis added] [spelling modernised] see G H Bougeant,
Histoire du Traité de Westphalie, ou des Negociations qui se firent à Munfter & à Ofnabrug
Moreover, it appears that these treaty articles merely recognised a practice which
had already been in existence for almost half a century. Indeed, the powerful
German Princes were conducting their own foreign policy long before Westphalia.
Palatinate and Brandenburg, for instance, struck alliances with the United Provinces
of the Netherlands in 1604 and 1605 respectively.165 Further, most rulers within the
Empire formed part of the armed force coalitions – the Evangelical Union and the
Catholic League – that existed at the outbreak of the Thirty Years’ War in 1618.16 6
In light of this, the articles concerning the treaty-making power can hardly be
viewed as groundbreaking or as compelling evidence of a new independent status
for the German distinct separate polities.
4 Recapitulation
The rest of the provisions in the two documents finalised in 1648 related to rather
secondary issues.167 They included matters such as a general amnesty going back to
the Bohemian troubles, the neutralisation of certain territories, the restitution of
property and the renouncement of debts, the re-establishment of commerce and
trade, the hereditary succession in some German monarchies, as well as the general
representation in Imperial institutions and the election of the Emperor.
To summarise, the principal objects and material provisions of the Osnabrück and
Münster Treaties do not at all support the traditional position that the Peace of
Westphalia constitutes a paradigm shift whereby the political entities involved
gained exclusive power over their territories. The two main purposes of the
agreements related to the practice of religion and the settlement of territories, not to
the creation of distinct separate polities independent from any higher authority. As
regards religious matters, the German Princes did not even retain their existing
power; au contraire, the rule of cuius regio eius religio was restrained by
denominational protections for minorities and equality guarantees were provided for
Catholics and Protestants.
Furthermore, the Empire remained a key actor according to Westphalia. Indeed, it is

through Imperial bodies – such as the Diet and the Courts – that religious
safeguards were imposed in decision-making process. With respect to territorial
settlements, the satisfaction of Sweden was given in terms of fiefdoms within the
Empire, thus acknowledging an enduring overlordship for the Emperor. Vis-a-vis
France, although no Imperial feudal link remained after most land transfers, some
parts of Alsace maintained their autonomist status granted by the House of Austria.
(1751) vol 3, 428-429. Therefore, it appears that the compromised article 65, Treaty of
Münster, was a victory on the part of the Holy Roman Empire because the language used
stopped short of recognising any sovereign rights to the German Princes.
165
See Parker, above n 114, 2, who noted that, along with England and France, Palatinate and
Brandenburg struck treaties of friendship with the Netherlands, which helped the latter’s effort
against Spain.
166
See above n 108-110 and accompanying text.
167
For more detail on these secondary matters, see H Sacchi, La Guerre de trente ans (1991) vol
3, 477-484; Holsti, above n 7, 36.
Finally, it was just seen that the power to conclude alliances formally recognised to
the German Princes was not unqualified and that, in fact, they had conducted such
foreign affairs long before then.
This perspective on Westphalia focussing on the relevant documents clearly shows,

therefore, that 1648 cannot legitimately be deemed a turning point in the
development of the present state system. Rather, the outcome of the congress
constituted nothing more than a step further – even, arguably, a relatively modest
one – in the gradual shift from the ideal of a universal overlordship to the idea of
distinct separate political entities enjoying full autonomy over their territories.168
Put another way, the confinement of the transcendental institutions in Europe and
the erosion of their authority over both spiritual and temporal spheres in favour of
their constituting parts did not start, and certainly did not culminate either, with the
Peace.
In the next section, the post-1648 period in Germany must be considered in order to
assess the situation of the Holy Roman Empire and the status of the Princes
following the congress, and thus complete a comprehensive examination of
Westphalia.
C From Westphalia to the Napoleonic conquest
Even if the Treaties of Osnabrück and Münster did not establish, de jure, a system
of independent states, perhaps they nevertheless constitute a plaque tournante
because, de facto, the imperium substantially atrophied as a result of Westphalia,
which meant that the distinct separate polities effectively exercised exclusive
control and power over their territories. This section will refute this postulate and
will show that, in fact, Europe’s secular transcendental institution did not disappear
in favour of its constituting parts as an aftermath of the Peace.169
168
See Walker, above n 51, 148, who, speaking of the hybrid political status of the Empire and its
constituting parts in 1648, noted: ‘The territorial state had long existed in point of fact, but,
whilst each royal, ducal, or republican ruler of provinces had failed to recognise in his frontiers
the precise limits of his jurisdiction, the sense of national independence had been held down in
pupilage [sic] by the awe-inspiring shadow of a majestic common superior’. See also, to the
same effect, Wight, above n 69, 152: ‘At Westphalia the states-system does not come into
existence: it comes of age’; and, Westlake, above n 6, 55: ‘When the plenipotentiaries at
Munster and Osnabruck signed the Peace of Westphalia in 1648 the ground had been well
prepared for an international society, such a society had indeed been gradually emerging.’
169
One may recall that Voltaire notoriously quipped that the German Empire was ‘neither Holy,
nor Roman, nor an Empire’; see L C Buchheit, Secession – The Legitimacy of Self-
Determination (1978) 8. Pufendorf’s view on the Empire was that of ‘an irregular state-body,
much like a monster’; see J G Gagliardo, Reich and Nation – The Holy Roman Empire as Idea
and Reality, 1763-1806 (1980) 41; it must be stressed, however, that the terms ‘monstrosity’
(in Latin monstrum) and ‘irregularity’ were almost synonyms in the writings of the 17th
century and 18th century – see below n 205. These quotes bear witness to how important, yet
immensely difficult, it has been to describe and ascertain the nature of the Holy Roman Empire
of the German Nation. The objective of this brief review of the Imperial institutions is much
more modest – to show that the Empire, whatever it was, did not end following Westphalia.
1 Survival of Imperial institutions
In the 17th century and 18th century, the principal German political entities within
the Empire could be gathered in the following categories: first, Ecclesiastical
Principalities (dominated by Catholic Princes); second, Secular Principalities
(dominated by Protestant Princes); third, Imperial Cities; and, finally, families of
Imperial Counts and Knights.170 Some of the Secular Principalities – Brandenburg-
Prussia, Electoral Saxony, Bavaria, the Palatinate, Hesse, Trier, and Württemberg –
were antagonistic to the Imperial authority and challenged the Emperor’s
prerogatives. The other Secular Principalities, as well as Ecclesiastical
Principalities, Imperial Cities, Counts and Knights, supported the Empire and were
in favour of keeping its institutions alive and strong.171
These institutions included the Diet and the Emperor himself, as well as the
Imperial Courts, the Imperial Circles and the Imperial Army.172 The principal
functions of the Diet were advisory and legislative; it also constituted the
adjudicator of final appeal.173 Laws duly enacted by the Diet and sanctioned by the
Emperor bound the Empire in its entirety,174 hence the adage Reichsrecht bricht
Landerecht.175 Accordingly, there is little doubt that, originally, the Diet was
intended to be the most important Imperial body after the Emperor.
It was seen that the Treaty of Osnabrück modified the composition of the Diet by
establishing guarantees for denominational equality.17 6 Article 5, paragraph 43, of
this Treaty further provided:
In matters of Religion, and in all other Affairs, wherein the States cannot be
considered as one Body, and when the Catholic States and those of the Confession of
Augsburg are divided into two Parties; the Difference shall be decided in an amicable
way only, without any side’s being tied down by a Plurality of Voices. However, as
to what concerns the Plurality of Voices in the matter of Impositions, that Affair not
being capable of being decided in the present Assembly, it shall be remitted to the
next Diet.177
170
See Gagliardo, ibid 3-15. The Imperial Constitution consisted in the following series of legal
texts adopted throughout the existence of the Empire: (i) the Golden Bull in 1356; (ii) the
Eternal Peace in 1495; (iii) the Treaty of Passau in 1552; (iv) the Peace of Augsburg in 1555;
(v) the Peace of Westphalia in 1648; (vi) the Electoral Capitulations in 1519; (vii) the Peace
of Teschen in 1779; and (viii) the Final Recess of the Imperial Deputation in 1803.
171
See Krasner, above n 19, 247-248.
172
See Gagliardo, above n 169, 16-46, who underscored that these institutions ‘functioned
essentially unchanged for a century and a half following the Peace of Westphalia’; see, ibid 16.
173
The Treaty of Osnabrück, at article 8, assigned to the Diet an almost indefinite programme of
work; see Treaty Series, 241-243. See also Pagès, above n 114, 246.
174
The Diet was formed of three councils – the Council of Electors, the Council of Princes, and
the Council of Cities. A majority vote in two of the three bodies was needed to submit a
proposal to the Emperor, on which he had the final say.
175
That is, Imperial law breaks territorial law.
176
177
Treaty Series, 235. [emphasis in original [spelling modernised]
It followed that any measure pertaining to religion, even remotely, had to be

approved by both the corpus Evangelicorum178 and the corpus Catholicorum.179
This consensus requirement180 meant that, after 1648, the Diet could hardly fulfil its
legislative functions.181
Indeed, although it remained in permanent session starting in 1663,182 very little at

all was accomplished by the Diet, mainly because of deadlocks caused by
denominational equality or by lack of unanimity. The consequential impeded
leadership and direction given to the Empire as a whole was fertile ground for the
subordinate German polities to claim and, indeed, exercise power over their
territories.183 But in spite of this, the Diet continued to be a forum within the
Imperial system where issues of national concerns could at least be voiced and
debated.18 4 One must also realise that it was only in the middle of the 18th century –
that is, one-hundred years after the Peace of Westphalia – that the Diet thus became
dysfunctional.
Similarly, although the Osnabrück and Münster Treaties affected the other Imperial
institutions, they continued to play unremitting roles within the increasingly
decentralised Empire for years after the Peace.185 ‘Imperial institutions were not
totally defunct, for they encouraged peace, solidarity, and military cooperation
178
That is, body of Protestants.
179
That is, body of Catholics.
180
This distinction based on denomination existed in addition to the division of the Diet into three
councils. It meant that the voting on religious matters was done in a plenary assembly of all
representatives, who sided in their respective Catholic and Protestant groups. See Gagliardo,
above n 169, 24.
181
See P Schröder, ‘The Constitution of the Holy Roman Empire after 1648: Samuel Pufendorf’s
Assessment in his Monzambano’ (1999) 42 Historical J 961, 979-980, who wrote: ‘The
Protestants realized immediately that they could exploit the right of separating into two
different religious congregations for their own ends. By claiming that most of the disputed
matters were matters of religious controversy, and thus enforcing the itio in partes, they were
able to assert that the decision reached in the particular Protestant corpus was the only binding
agreement for them, and that the Catholics had no right to intervene or challenge these
discussions. This tactical manoeuvring impeded the Diet seriously, while the Emperor
attempted to stress the unity of the Empire.’
182
Since the Diet was convoked by the Emperor and fearing that the latter could disregard its
constitutional role by not calling sessions, the representatives refused to disband the Diet after
1663. Therefore, it remained in permanent session until the end of the Empire in 1806, hence
the nickname ‘Eternal Diet’ of Regensburg. See Gagliardo, above n 169, 21.
183
See Sacchi, above n 167, 482, who wrote: ‘L’unanimité sur les problèmes constitutionnels ou
religieux importants étant en réalité impossible à atteindre, cette institution, qui siégea
jusqu’au milieu du XIXème siècle, devint le point où s’accumulèrent tous les dossiers
essentiels de l’empire, et paralysa en fait toute réforme.’
184
It is through the Diet that the notorious mystical formula Kaiser und Reich emerged to signify
both the unity and the division within the Holy Roman Empire. According to Gagliardo, above
n 169, 21, this expression was ‘intended to convey the sense of a kind of coequal responsibility
of head and members for the preservation of harmony of a single body, a higher unity within
diversity’. The English language cannot properly convey the precise adjectival distinction
between Kaiser and Reich, which would be translated at best as ‘Emperor’ and ‘Empire’.
185
For a detailed analysis of the Imperial Circles, the Imperial Courts and the Imperial Army, see
Gagliardo, ibid 26-39.
among the many German states.’186 Indeed, the political activities of the Imperial
Circles remained instrumental in most German areas, the jurisdiction of the
Imperial Courts steadily shrunk but stayed strong until the 18th century, and the
command of the Imperial Army abided with the Emperor and his Reichs-
Generalfeldmarschälle18 7 to the end.
The last, but certainly not least, of the Imperial institutions was the Emperor
himself, whose gradual decline in power owed nothing substantial to Westphalia. It
is rather the expansion of the so-called Landeshoheit188 principle – imposed on
Emperor Charles V in 1519 and enacted into Imperial law in 1711 – which allowed
the German distinct separate political entities to gain ever-expanding control and
authority over their territories at the expense of the imperium.18 9 Significantly, here,
this progressive erosion of the transcendental Imperial power began several
centuries before 1648.190 According to the historian John Gagliardo, it can actually
be traced back to the Golden Bull in 1356, which first prescribed legal modalities
for the election of the Emperor.191
Since this revolutionary landmark in the constitutional annals of the Empire, and up
to the Reichsdeputationshauptschluss192 in 1803, just before the demise, the
Emperor and the other Imperial institutions underwent piecemeal and virtually
uninterrupted reductions in their functions and powers. However, one must
emphasise that it was as a result of Napoleon’s conquest of Germany in 1806193 that
the Holy Roman Empire ceased to exist.194 Put another way, the imperium did not
disappear by atrophy victim of the German Princes; rather, it ended because of an
external force unrelated to internal political struggles – Napoleonic France, the
hegemonic power in Europe then.195
186
Philpott, above n 19, 87.
187
That is, Imperial General-Field Marshals, who acted as the supreme military representatives of
the Emperor.
188
That is, territorial lordship.
189
See F Hertz, The Development of the German Public Mind – A Social History of German
Political Sentiments Aspirations and Ideas (1957) vol 1, 14.
190
Further, it was shown in a previous part of the paper that the Emperor’s authority vis-a-vis
other European territories such as Spain, England and France disappeared centuries before. See
above n 79 and accompanying text.
191
See Gagliardo, above n 169, 18-19. See also, generally, L Gross, ‘The Holy Roman Empire in
Modern Times: Constitutional Reality and Legal Theory’ in J A Vann and S W Rowan (eds),
The Old Reich: Essays on German Political Institutions, 1495-1806 (1974) 1.
192
That is, the Final Recess of the Imperial Deputation.
193
A study of the Empire’s last period of existence is obviously beyond the present study. For
more detail, see Gagliardo, above n 169, 187ff; Bryce, above n 59, 359ff.
194
It is important to point out that the Empire was not abolished by Napoleon but, rather, that its
dissolution was the result of Emperor Francis II’s renouncement to the Roman-German crown
on 6 August 1806, following a note announcing that France no longer recognised the imperium
which, in fact, amounted to an ultimatum for abdication; from then on, the authority of the
Habsburg Emperor was limited to the Austrian borders – see Gagliardo, ibid 279-281; Bryce,
ibid 365-366. Therefore, it appears to be erroneous to refer to the Napoleonic abolition of the
Holy Roman Empire, as some commentators have – see, for example, Krasner, above n 19,
251, who wrote: ‘Napoleon abolished the empire completely in 1806’.
195
See P Guggenheim, ‘La souveraineté dans l’histoire du droit des gens – De Vitoria à Vattel’ in
2 Theories of the Empire
Finally, an account of the theoretical assessment of the Imperial political

organisation given by some of the leading intellectuals both before and after 1648
will close this look at Westphalia. Unsurprisingly, the European academics of the
time could not agree on who enjoyed ultimate power over German territories.196 In
Les six Livres de la Republique,197 first published in 1576, the Frenchman Jean
Bodin followed the Aristotelian categories of polities – monarchy, aristocracy,
democracy198 – and held that the Empire was an aristocracy, not a monarchy,
because:
the seven princes Electors, having by little and little withdrawn the sovereignty, have
left nothing unto the emperor, but the bare marks thereof in show; the sovereignty it
self in effect remaining unto the state of the seven electors, of three hundred German
princes or thereabouts, and the ambassadors deputed for the imperial cities.199
With the one exception of Henning Arnisaeus, this conclusion was opposed by
German publicists – including Johannes Althusius, Bartholomaeus Keckermann,
Hermann Kirchner, Daniel Otto, and Tobias Paurmeister – who insisted that the
Emperor was a true monarch.200
Other 17th century authors avoided a strict classification of ruling orders, which
could not possibly reflect the multifarious German political reality. Among them,
Veit Ludwig von Seckendorf and Johannes Limnaeus who, building on the idea of
compound polyarchy first formulated by Christoph Besold,201 suggested that the
Emperor and the Princes simply shared the supreme authority within the Empire.20 2
Samuel von Pufendorf also wrote on the issue shortly after Westphalia in his 1667
essay De statu Imperii Germanici, published under the pseudonym Severini de
Mélanges offerts à Juraj Andrassy (1968) 111, 114, who wrote: ‘Mais il fallut quand mème
attendre jusqu’à la dissolution de l’Empire, en 1806, pour qu’une modification fondamentale
se produise dans la situation juridique; les territoires dont les princes avaient réussi à s’assurer
la puissance publique devinrent des États souverains, englobant les seigneuries dont les
titulaires n’avaient pas accédé à la même position’.
196
See, generally, D Wyduckel, ‘The Imperial Constitution and the Imperial Doctrine of Public
Law: Facing the Institutional Challenge of the Peace of Westphalia’ in K Bussmann and H
197
J Bodin, Les six Livres de la Republique (1583). See also the translation by R Knolles, J
Bodin, The Six Bookes of a Commonweale (1606).
198
See Bodin, ibid 252; see also Knolles (tr) ibid 184. For more detail on Aristotle’s forms of
government, see d’Entrèves, above n 73, 73.
199
R Knolles (tr), ibid 236. [spelling modernised] See also the original Bodin, ibid 321. Also note
that Bodin summarily rebuked the pretensions of Imperial and/or Papal world overlordship
later in his work – see Bodin, ibid 199 and 201; Knolles (tr), ibid 135 and 137. See also R
Chauviré, Jean Bodin – Auteur de la ‘République’ (1914) 463-466.
200
See J H Franklin, ‘Sovereignty and the Mixed Constitution: Bodin and His Critics’ in J H
Burns (ed), The Cambridge History of Political Thought – 1450-1700 (1990) 298, 309ff.
201
See ibid 323ff.
202
See Schröder, above n 181, 963.
Monzambano.203 Influenced by Thomas Hobbes’ Leviathan,204 the German theorist

used the categories of regular and irregular forms of polity – instead of Aristotle’s
tripartite grouping – and held that the German political structure was monstrous,
that is, of a hybrid nature between monarchical and aristocratic.205
Now, for the present purposes, the most meaningful facet of the post-1648 period of
German political history is that the Holy Roman Empire did not dissipate in favour
of its constituting parts, neither in law nor in fact, as a result of the Peace of
Westphalia. As one historian appositely wrote: ‘The peace [in 1648] was not the
tombstone of the empire but a charter which gave it another century-and-a-half of
life’.206 Therefore, not only did Osnabrück and Münster blatantly failed to establish
a legal system of independent states but, de facto, the German distinct separate
polities did not gain full control and authority over their territories before the
imperium vanished following Napoleon’s conquest of the region in the 19th
century.207
IV CONCLUSION
To recapitulate, the hypothesis at the heart of this paper is that the orthodoxy
according to which the Peace of Westphalia recognised and applied for the first
time the idea of sovereignty and hence constitutes a paradigm shift in the
development of the present state system is historically unfounded and, in effect, is a
myth. It was argued that 1648 constitutes no more than one instance where distinct
203
S de Monzambano (i.e. S von Pufendorf), De statu Imperii Germanici (1668). See the
translation by E Bohun, S von Pufendorf, The Present State of Germany Written in Latin by
the Learned Samuel Pufendorf under the Name of Severinus de Monzambano Veronesis
(1696).
204
See T Hobbes of Malmesbury, Leviathan, or The Matter, Forme, & Power of a Common-
Wealth Ecclesiasticall and Civill (1651) 115. Von Pufendorf later elaborated on the question
of the forms of political system in S von Pufendorf, De iure naturae et gentium libri octo
(1688) first published in 1672.
205
It is important to note that, in 17th century and 18th century writings, the term ‘monstrosity’ –
from monstrum in Latin – was used not as an insult to the Empire but, rather, to mean a
striking and unusual irregularity in a political body. See Schröder, above n 181, 966-967.
206
R Wines, ‘The Imperial Circles, Princely Diplomacy and Imperial Reform 1681-1714’ (1967)
39 J Modern Hist 1, 2.
207
See F H Hinsley, Power and the Pursuit of Peace – Theory and Practice in the History of
Relations between States (1963) 153, who appositely wrote the following concerning the
eagerness to ante-date the beginning of pivotal phenomena such as the modern state system:
‘Historians are liable to ante-date the completion of massive developments because of their
preoccupation with origins. They are given to ante-dating the beginnings of massive
developments for the same reasons and also because such developments are rarely finally
completed: when the end of one phase is usually but the preliminary to the onset of the next it
is easy to mistake the onset of another phase for the beginning of an entirely new departure.
These opposite hazards have affected our assessments of the origin and evolution of the
modern states’ system. Only when due allowance is made for the first can it be seen that a new
European states’ system emerged in the eighteenth century, and not at an earlier date. Only
when careful regard is paid to the second can it be seen that, for all the twists and phases it has
recently undergone, the system which then emerged or finally matured in Europe is the system
which still holds the world in its framework.’ [emphasis added]
separate polities pursued their continuing quest for more authority over their
territory through greater autonomy.
The discussion attempted to substantiate this argument in a three-part analysis. First

were examined the segmented and heteronymously organised medieval societies
based on decentralised feudal structures, which later unified through the
Christendom under two transcendental political entities – the Pope and the
Emperor. It was also seen that the dynamics at work in Europe’s religious and
political spheres meant that, at the break of the Thirty Years’ War, the respective
universal authorities of the Pope and the Emperor had already been severely
depleted by the joint actions of the Reformation and the centralisation of
government both within and without the Holy Roman Empire.
Second, the principal objects and material provisions of the Osnabrück and Münster
Treaties were shown to deal with religious matters, territorial settlements and the
transfer of treaty-making power. The purpose of Westphalia, in fact, was not at all
about the creation of independent polities, let alone independent states. On the
contrary, it kept the imperium very much alive, be it in the Empire’s institutions,
through feudal territorial links, or by restricting the Princes’ alliance privileges.
Finally, it was seen that the Empire did not disappear in favour of the German
polities as an aftermath of the Peace. Indeed, despite reductions in the scope of their
functions and powers, the Imperial institutions remained active until they
disappeared.
The study was thus concerned with the material reality originally represented
through language by the word ‘Westphalia,’ which essentially concerned the peace
congress that ended the Thirty Years’ War. Now, what comes out of this discussion
is that the material reality that the linguistic sign ‘Westphalia’ represented in 1648,
through the human mind, does not correspond to the reality with which the
‘Westphalian state system’ has long been associated. Indeed, it was shown that the
Peace did not turn the page on multilayered ruling in Europe, but simply constituted
a case where distinct separate polities claimed more authority through enhanced
independence, which was really only reach a century-and-a-half later. This reality
strongly contrasts with the Westphalian dogma according to which, by allegedly
recognising the German Princes as sovereign, the Peace signalled the beginning of
a new era.208
Such a demonstration makes a compelling case that Westphalia constitutes a myth,

an aetiological myth, or origin myth. Semiotically, the word ‘Westphalia,’ which
represented the reality of the twin peace congress, metamorphosed into a myth
which has represented, as well as indeed created, a new reality, a mythical reality,
208
On the overlapping of periods of history, see C Gallagher and S Greenblatt, Practicing New
Historicism (2000) 7: ‘In what sense is an era ever truly finished – who sets the boundaries and
how are they patrolled. Do we not have overwhelming evidence, in our time and in every
period we study of an odd interlayering of cultural perspectives and a mixing of peoples, so
that nothing is every truly complete or unitary.’
about the present international state system. Most importantly, in the process
whereby the word became a myth, the historical facts and events surrounding the
Peace became irrelevant and/or incontestable. Put another way, although
‘Westphalia’ changed from lógos to mûthos, it has nonetheless continued to be
viewed in terms of lógos, that is, as the rational explanation of the origin of modern
international relations. For human societies, and in particular for the international
society, Westphalia is real, it is not fiction.
By holding as unquestionably true and valid what is in fact a human-made

fabrication, the aetiological myth of Westphalia has built a belief-system. This
social production has thus provided a shared explanatory structure for the socially
constructed international reality and, in doing so, has had an extraordinary impact
upon the shared consciousness of humanity. Furthermore, given that this myth
managed its way into the very fabric of our international legal order – as the model
for the idea, and the ideal, of state sovereignty in international law – the social
power that Westphalia has continuously demonstrated within human reality
increased considerably.
Indeed, one can imagine, for instance, that people involved in international law who
use the word ‘Westphalia’ every day of the week – like the publicists referred to in
the introduction20 9 – do not care about the history of the Peace of Westphalia. They
resort to the expression ‘Westphalian model’, in most cases, as a ‘convenient
shorthand’21 0 to explain the fundamental juristic basis of the world organisation (or
disorganisation) founded on the principle of the sovereign equality of states, in
which is rooted the whole scheme of international relations, as well as the rules of
international law.211 In sum, a reference to ‘Westphalia’ will invariably bring up,
through the cognitive process of the mind, a legally-empowered image21 2 of our
‘international system [as] an association of sovereign states’.213
This constitutes, in effect, the absolutely fabulous power that the aetiological myth
of Westphalia has carried, sometimes strategically, within the shared consciousness
of society. This social construct remains highly compelling today, as we have
recently witnessed with the arguments against the creation of the International
Criminal Court,214 which spoke of a most fundamental change in the ‘Westphalian
209
210
Falk, above n 11, 4.
211
Again, very recently, see C Harding, ‘Statist Assumptions, Normative Individualism and New
Forms of Personality: Evolving a Philosophy of International Law for the Twenty First
Century’ (2001) 1 Non-State Actors & Int’l L 107, 110: ‘What may be loosely termed the
“traditional” model of international ordering is, in terms of the history of international law and
relations, also the “modern” or “westphalian” system, usually for convenience dated back to
the Peace of Westphalia in 1648 as an event which inaugurated the system of international
relations based on a community of sovereign states.’ [footnotes omitted]
212
M Koskenniemi, The Gentle Civilizer of Nation – The Rise and Fall of International Law
1870-1960 (2002) 51, used the expression ‘metaphoric sense of Westphalia’ to express that
idea.
213
Franck, above n 16, 5.
214
On this futile resistance to the International Criminal Court, see the eloquent editorial closing
model’215 of our international legal order, that is, in the world as we know it, no
less.216 The debates on numerous other contemporary issues on the international
plane have also been voiced in relation to the myth of ‘Westphalia’217 and the
contention repeatedly heard now is that the reality this linguistic sign represents is
being challenged by ‘globalisation,’ another extremely powerful word.218
remarks by W A Schabas, ‘International Criminal Court: The Secret of its Success’ (2002) 12
Criminal L Forum 415, 428: ‘As Victor Hugo wrote, in Histoire d’un Crime, “On résiste à
l’invasion des armées; on ne résiste pas à l’invasion des idées”. Or as it has been put more
colloquially, ‘nothing can stop an idea whose time has come.’
215
See above n 20-25 and accompanying text. Contra, see R E Fife, ‘The International Criminal
Court – Whence It Came, Where It Goes’ (2000) 69 Nordic J Int’l L 63, 75, who nevertheless
used the ‘Westphalia’ rhetoric: ‘The Statute [of Rome] does not challenge the basic
Westphalian System of international law. This State-centered and inherently fragmented legal
order is reflected to an extreme degree in international criminal law.’ [footnotes omitted]
216
On the recent developments concerning international judicial instances, see Y Simbeye,
‘Internationalised Criminal Courts and Tribunals: Practice and Prospects’ (2002) 4 Int’l L
Forum 82.
217
See, for instance, the paper by Canada’s former ambassador to the OECD, K Valaskakis,
‘From “Westphalia” to “Seatle”: Long-Term Trends in Global Governance’, communication
given at the OECD Forum on 21st Century Governance, Expo 2000, Hanover, Germany,
March 24-25 2000. Also, in The Economist of 22-28 February 2003, there was a special report
on the United Nations and Iraq entitled ‘Irrelevant, Illegitimate or Indispensable?’ where one
could read, 26: ‘All in all, though the UN saw some of its darkest days in the 1990s – the
massacre in the “safe area” of Srebrenica being over-shadowed only by the inaction in the face
of genocide in Rwanda – it also demonstrated its capacity to adjust to changing circumstances.
Indeed, in 1999 its secretary-general, Kofi Annan, enunciated a new doctrine that would have
shocked most of his predecessors. Atrocities on a grand scale and the denial of democratic
fundamentals should no longer be regarded as purely domestic matters, he said, thereby
tossing out ideas about the inviolability of national sovereignty that went back to the Treaty of
Westphalia in 1648. [emphasis added]
218
On the different meanings given to the word ‘globalisation’ (or ‘mondialisation’ in French),
see E Hey, ‘Globalisation and International Law’ (2002) 4 Int’l L Forum 12. See also P Allott,
‘The Emerging Universal Legal System’ (2001) 3 Int’l L Forum 12.

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Australian Journal of Legal History (2004) Vol 8 181

THE WESTPHALIAN MODEL IN DEFINING INTERNATIONAL LAW:

In terms of social effect on the consciousness of humanity, the Peace of Westphalia

sources doctrinales de l’internationalisme (1957) vol 2, 8-9.

aspirations of the feudal barons, on the other.1 8

The large majority of modern international relations scholarships explicitly share

To give the contemporary example of the International Criminal Court, which

applied is a myth. The aetiological myth26 of Westphalia has carried extraordinary

II MYTH AND MYTHOLOGY

It follows that the very-large-scale myth of Westphalia is liable to have a very-

III THE ‘WESTPHALIAN MODEL’ OF INTERNATIONAL LEGAL ORDER

A From the Barbarian Invasions to the Thirty Years’ War

In short, as Philip Allott Cartesianly explained, the medieval

European society [was] the scene of a structure-system struggle in two dimensions −

coup de grâce for the Pope’s plenitudo potestatis.73

However, it seems to be the consolidation of power under autonomous rulers in

separate polities enjoying full autonomy over their territories.81

3 Emergence of independent polities

Chronologically, the Northern cities of the Italian peninsula – Genoa, Florence,

translation of the text in Appendix 6 of J C Holt, Magna Carta (1992) 449.

4 Conflicts of religion and politics

B The Peace of Westphalia

The Peace of Westphalia, formalised on 24 October 1648, was in fact composed of

Although the Treaties paid homage to the unity of Christendom,129 it is significant

priori, to bear witness to the termination of the Imperial transcendental domination

Also, the Westphalia Treaties formally recognised freedom of conscience for

As well, such dissenters were not to be ‘excluded from the Community of

Furthermore, Osnabrück promoted equality between Catholics and Protestants in

The second object of the Peace of Westphalia concerned territorial settlement,

The treaty provisions relating to religious practice and denominational matters, as

however were already at this point faits accomplis.160

Furthermore, the Empire remained a key actor according to Westphalia. Indeed, it is

This perspective on Westphalia focussing on the relevant documents clearly shows,

C From Westphalia to the Napoleonic conquest

1 Survival of Imperial institutions

It followed that any measure pertaining to religion, even remotely, had to be

Indeed, although it remained in permanent session starting in 1663,182 very little at

2 Theories of the Empire

Finally, an account of the theoretical assessment of the Imperial political

Monzambano.203 Influenced by Thomas Hobbes’ Leviathan,204 the German theorist

The discussion attempted to substantiate this argument in a three-part analysis. First

Such a demonstration makes a compelling case that Westphalia constitutes a myth,

By holding as unquestionably true and valid what is in fact a human-made

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