The Westphalian myth revisited. State sovereignty and the process of international law-making and law-enforcement from the 16th centrury to the present
01 / 2005 - unknown
According to traditional historiography, the Westphalian States system was based on an almost absolute concept of State sovereignty. This led to the articulation of the doctrine of dualism, thus underpinning the idea of impermeability of international and national law as well as excluding the individual from the international scene. Law making and law enforcement were attributed solely to the States (legal voluntarism). By consequence, nothing prevented States from resorting to warfare. World War I is generally considered a watershed in the history of international society and of international law. The peace process of 1919/1920 set in motion some changes that would thoroughly alter international law and lead to the watering down of sovereignty, dualism and the monopoly of the State with regards to law making and law enforcement. Over the last few years, this view on the Westphalian States system and its law of nations has been challenged. The central thesis underlying this project is that sovereignty may have been the key element in the dynamics of early modern international law, but not the all-dominating factor. It was in fact a dualistic system. The late 17th and early 18th centuries saw sovereignty diminish and international society strengthen to the detriment of a State s autonomy in the process of Europe s attempt to overcome the chaos of the Reformation era (1540-1648). As such, the changes of the 20th century do not constitute such a radical breach with views and practices of the 18th and 19th centuries as it is currently accepted. While traditional historiography has one-sidedly stressed the elements of discontinuity, it is important to look at the elements of continuity as well. In the new sub-programme, the gradual evolution of the international legal order will be scrutinised in more detail than it was possible to achieve until now. Whereas before, research was mostly conducted on the basis of treaties, now increasingly diverse sources will be analysed. Also, the scope of subjects will be widened. Whereas previous research pertained almost exclusively to peacemaking, now the laws of war in their broadest sense will be included in the debate. The era covered (1500-present) will not be analysed from the perspective of a dialectical opposition of the modern (before 1919) and the post-modern paradigms (after 1919). This era is seen instead as the era of interstate law , which should be subdivided into several shorter periods, of which the 20th century (1919-1990) is just another example. In this light, the revolution of international law of the 20th century heralded a new phase in the to a large extent continuous history of inter-state law . The divergences between the different systems of inter-state law have consequences for the evolution of the State , from the dynastic State-complexes of the early modern period to the nation-states of the 20th century. Through the study of some central features of the international legal order, the researchers aim to map and define the different phases of the inter-state era . The rewriting of the history of international law during the era of the State (since 1500) may yield a better insight into the important evolution the international legal order has been undergoing since the end of the Cold War (1990). A more nuanced view on the definition and role of the State in the different phases of the inter-state legal order will allow for a better assessment of current evolution. Are we truly experiencing a paradigm shift? Is the current evolution the dawn of an era where international law becomes something other than inter-state law, or is this just a new phase in the evolution of inter-state law in which the State takes on new characteristics and a new role?