Today’s international legal system has roots that stretch back centuries, not decades. Those who believe that international law was an outcome of World War II are subject to the axiom that “Those who fail to learn from history are condemned to repeat it” (Winston Churchill.)
Being a historian, Member of Parliament, Prime Minister, and writer, it is highly likely that Winston Churchill had in mind the Peace of Westphalia, a key foundational building block of today’s international law.
The Peace of Westphalia, creating the so-called Westphalian System, was made of two separate agreements:
This ended the many wars fought in Europe from 1618-1638 and the deaths of eight million people.
The negotiation process was difficult and complex. It is a classic example of negotiation by skilled Advocates and lawyers for their own goals and desired outcomes resulting in a larger agreement of greater good for all. Negotiation replaced war. Law replaced death and chaos.
The potential sovereign state included well-established nations like Spain and France as well as yet-to-be-formed nations such as Germany within what was known as “The Holy Roman Empire”. Founded by Charlemagne in 800, it is said that “the Holy Roman Empire was neither holy, nor Roman, nor an empire.”
This large medieval confederation held within itself the unborn nations of Europe. Not being nations, but provinces, there was no international legal structure. Therefore no basis for international law. The foundation and structure of international law had yet to be built. Therefore, the Westphalia Model became a key building block of contemporary international law.
“The Westphalian system” is called this because the main peace negotiations took place in the province of Westphalia, in the cities of Münster and Osnabrück. Both cities were maintained as neutral and demilitarized zones for the negotiations
Its characteristics are:
a global system based on the principle of international law that each state has sovereignty over its territory and domestic affairs;
this sovereignty is to the exclusion of all external powers;
acceptance of the principle of non-interference in another country’s domestic affairs,
each state is equal in international law.
Charles Rhyne stated, "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.”
Joachim Whaley, a leading English-language historian of the Holy Roman Empire, mentions that later commentators such as Jean-Jacques Rousseau and Immanuel Kant both idealized the Peace of Westphalia as the first step towards universal peace. Still, Dr. Whaley points out that "their projections for the future should not be mistaken for descriptions of reality".
The Peace of Westphalia did not end the war in Europe. Napoleon and Adolf Hitler were yet to build their empires, only to see them crash and burn. What the Peace of Westphalia did is established the precedent of peace and a new system of political order based upon the concept of co-existing sovereign states.
The Westphalian system did not create the nation-state, but the nation-state could not exist without the foundation of the Peace of Westphalia.
The expression "Westphalian model," is a convenient way to explain the fundamental juristic basis of the world organization(s) founded on the principle of sovereign equality of states, which is rooted in the whole scheme of international relations and the rules of international law.
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