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The Oxford Handbook of the History of International Law edited by Fassbender, Bardo; Peters, Anne (1st October 2012)

III Regions, VI Europe, 26 From the Peace of Westphalia to the Congress of Vienna

Heinz Duchhardt

From: The Oxford Handbook of the History of International Law

Edited By: Bardo Fassbender, Anne Peters

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 November 2019

Subject(s):
1648-1815 — Use of force, war, peace and neutrality — Peace treaties — Diplomacy and consular relations

(p. 628) 26  From The Peace Of Westphalia To The Congress Of Vienna

1.  Introduction

There are many ways one can reconstruct the history of international law over an extended period of time: one can, for example, follow the ‘leading’ scholars in the field and set out their outlines in a chronological manner and/or compare and contrast them in a more differentiated way. A drawback of this line of investigation is that certain ‘lesser’ scholars may be overlooked and that not enough weight would be given to the interdependency between theory and practice. An alternative approach could be to focus on what—allegedly—has been described as turning points in the history of international law, in this case the great peace congresses held between the Peace of Münster (1648)—as complemented by the Treaties of Münster and (p. 629) Osnabrück—and the Congress of Vienna (1814–15).1 The disadvantage here is that the theory of international law would not be given adequate attention. An alternative approach was taken by Wilhelm Grewe in Epochen der Völkerrechtsgeschichte, one of the standard works on the history of international law, which departs from the respective States and then, in a broadly chronological manner, discusses the issues that led them into conflict and required regulation.2 I have decided to follow a similar approach here and to address the issues central to inter-state relations and their legal foundation by way of a thematic approach; it is, at least to my mind, the method that best links politics with theory.

2.  Inter-State Relations as the Basis of International Law

Let me introduce my discussion—as Grewe did—with some brief reflections on the impact inter-state relations had on international law.3 The Peace of Westphalia (1648), as little as it could achieve a European security system as once called for by Richelieu (1585–1642) or a settlement of all inter-state disputes apparent at the time, at least succeeded in rebalancing the Central European system of power: it transferred the never particularly robust Holy Roman Empire into a new order, a constellation which accorded France and Sweden, the two guarantors of the Peace of Westphalia, a considerable degree of influence and curtailed the position of the Holy Roman Emperor in important respects. The declaration of war and the conclusion of peace, for example, were henceforth subject to the approval of the Reichstag. Further, the German princes were each granted the right to form alliances (ius forderis); it was a privilege they had long claimed for themselves and had to an extent already come to (p. 630) experience. In short, the Peace of Westphalia remained until the end of the ancien régime the most important legal text governing inter-state relations in Central Europe, the undisputed point of reference, minor variations aside, for all peace treaties concluded until the 1790s. Whether one can describe the Peace of Westphalia, as many British and American social scientists like to do, as the point of departure of a ‘Westphalian system’, however, remains—also in light of what will follow—open to debate. What is certain is that the historian struggles to hold back his reservations, even when he is aware that several publication projects—such as the Consolidated Treaty Series and the multi-volume Recueil des instructions données aux ambassadeurs de France—took the Peace of Westphalia as their starting point.4

The Peace of Westphalia certainly did not herald a new golden age of peace, especially as it could neither end the Franco-Spanish War (1635–59)—which was only accomplished by way of the Treaty of the Pyrenees in 16595—nor achieve a general peace assured by a European security system.6 This was above all due to the fact that no other than the two guarantors of the Peace of Westphalia soon embarked on a campaign of outright aggression: Sweden, determined to maintain an inflated military apparatus yet unable to raise sufficient tax revenue at home, to generate additional income abroad, and France, driven by a new ruler, Louis XIV (1638–1715), to assert territorial claims and to take the lead in Europe. Indeed, it is not without reason that some texts—such as the one by Grewe—refer to the period after the Peace of Westphalia as the ‘French Age’, characterized by French military aggression against all of France's immediate neighbours (apart from England, which was protected by the Channel), the introduction of a Europe-wide network of diplomatic representations, and the implementation of a propagandistic court ritual at Versailles which other States soon sought to emulate.7 But there was another side to the coin: while Versailles served as a ‘prototype’, it also consolidated resistance among Europe's Catholic and Protestant powers. Their collective opposition, though, could not stop Louis XIV from installing the Bourbon dynasty in Habsburg Spain at the end of the War of the Spanish Succession (1701–14). Moreover, the second guarantor of the Peace of (p. 631) Westphalia, Sweden, though less consistent in its actions than France, exposed itself as a force which was determined to change the balance of power in Europe. If the First Northern War (1655–60) was testimony to this, then the Great Northern War (1700–21), which was to engage all States bordering the Baltic Sea and which was to result in the decline of Sweden and the rise of Russia, was to later affirm this.

The ambitions of the Ottoman Empire placed additional pressure on the European balance of power, as did the Anglo-Dutch Wars, which were fought throughout the 17th and 18th centuries. Having first flexed their muscles in the 1660s, the Ottoman forces stepped up their offensive in the 1680s, only to meet substantial European resistance, such as before Vienna in 1683. The Holy League (1684) and the Treaty of Karlowitz (1699)8 must be mentioned as turning points here; they showed the Sublime Porte that expansion in the shadow of Central European conflicts had become increasingly difficult and that the Ottoman Empire better adhered to the rules that were to form the basis of international law. Furthermore, while Europe faced conflict in the East, it also saw the rise of conflicts in the West, naval disputes which were driven by the quest to have command of the sea and to dominate the profitable maritime trade. The Anglo-Dutch Wars, however, were also about the balance of power in Europe and were to constitute a particular challenge for scholars of international law.

The Treaties of Utrecht/Rastatt/Baden (1713–14)9 and Nystadt (1721)10 finally brought peace to Europe.11 While the United Kingdom arguably benefited most from these treaties, the European continent, drained by years of conflict, demanded just one thing at this time: peace to recuperate. It is against this backdrop that the 1720s can be described as a pax britannica, a period when London controlled and led the other powers, but also as a phase in which the European powers attempted for the first time—by way of congresses in Cambrai (1722) and Soissons (1728–29)—to prevent future conflicts. The efforts of the French cardinal-minister Fleury (1653–1743) yielded only limited success, though, as Bourbon-ruled Spain sought to revise the outcomes of the War of the Spanish Succession. Like the Ottoman Empire, Spain thus was to be a constant challenge to the post-war order. France, in turn, having recovered from the disaster of Louis XIV's last war, took the election of a Polish king as an opportunity to again assert territorial ambitions. That all happened against the background of the great political theories of the day, the idea to establish a balance of (p. 632) power, which since the Treaty of Utrecht (1713) had almost become a principle of international law. It subsequently took until the extinction of the male Austrian line of the Habsburg dynasty (1740) for the European powers to enter into conflict again, disputes that were driven by German ambition, above all Prussia's quest to secure part of this heritage and by Bourbon and British competition over overseas interests. The latter led, for the first time, to a major European conflict being fought outside Europe. Before long the new was to become the norm: conflicts involving European powers in Europe were to have a regular impact on territories outside Europe and define colonial politics; vice versa, conflicts involving European powers outside Europe were to be regularly exploited by third powers to advance interests in Europe—the prime example here is the American War of Independence where the two Bourbon States intervened, directly and indirectly, to weaken Britain's position in Europe.

While the Treaty of Aix-la-Chapelle (1748)12 was more of a milestone than a turning point, the Seven Years’ War (1756–63) shaped the European balance of power up until the French Revolution (1789−99). It firmly established Prussia and Russia as major European powers, confirmed Britain's command of the sea and predominance as a colonial power, and validated the demise of France, which some historians have interpreted as the origin of the French Revolution. The Seven Years’ War thus laid the foundation for a new European order: an order which turned the age-old antagonism between Vienna and Versailles into a matter of the past (renversement des alliances) and the alliance of Austria and France into a matter of the present. At the same time, it also exposed first rifts in the alliance between Berlin and St Petersburg, which effectively were to leave Prussia without an alliance partner upon the death of Frederick the Great (1712–86). Prussia subsequently attempted to compensate for this by aligning itself with Germany's minor princely states, but the Fürstenbund, which it had established in 1785, was to already cease existence again in 1790. Despite their commitment to different alliances, however, the European powers did not fail—usually under the pretext of maintaining an equitable balance of power—to also act together; the most extreme example of this is the first partition of Poland in 1772, when Russia, Prussia, and Austria all secured important long-term interests for themselves. Curiously it is an act, later much condemned by scholars of international law, that the press reacted to with little criticism at the time.13

The outbreak of the revolution in France fundamentally changed the European balance of power. It not only saw other States exploit this situation elsewhere, as reflected in the subsequent partitions of Poland in 1793 and 1795, but also saw them misjudge the strength of the revolutionary movement, which swiftly was to find an echo outside France. In addition, they underestimated the emergence of a new type of warfare and soon had to acknowledge that their disciplined armies all but lacked the strength to successfully withstand the vigour of peoples’ armies. Still, this revolutionary ‘spook’ (p. 633) would probably have passed had there not been this charismatic army general from Corsica, Napoleon Bonaparte (1769–1821), who catapulted himself to the head of the French State, who over the next fifteen years conquered—Britain and Russia excluded—almost every State in Europe, and who ultimately made Paris the centre of contemporary politics. Once Napoleon had crowned himself emperor in 1804, he organized and staged what previous generations had called a ‘universal monarchy’: a superpower, which controlled an entire continent in terms of politics and culture. It was inevitable that the other powers would eventually join forces to set an end to this dream, which in all its principles opposed the notion that unity rested in diversity. The War of the Sixth Coalition (1813–14) marked the end of Napoleon's rule and while the Congress of Vienna did not restore the pre-revolutionary order, it drew important consequences out of the largely unjust politics pursued by the major powers during the ancien régime: it introduced—and this constituted a clear paradigm shift14—a framework for concord, which had its problems, but brought peace to Europe for a couple of decades.

3.  Impetus and Theme in International Law: War

3.1.  The Right to Conduct War

The development of modern international law, understood as a law that governs the relationship between sovereign States, has long been in the making and would not have been possible without the conflicts of the 16th and 17th centuries. The overseas wars and the French Wars of Religion (1562–98), in which the Spanish crown—if one allows for the use of this term for the Iberian composite monarchy at this time already—was involved, created an additional need for regulation, which extended beyond the code of ethics stipulated by the Holy Scripture and the laws codified in Late Antiquity. The focus of early international law reflected this, which during the age of the Baroque and Enlightenment, following the ‘Spanish’ exponents of second scholasticism and Hugo Grotius15 (1583–1645), was primarily concerned with the ius ad bellum (p. 634) and ius in bello. The latter took on a particular urgency in the aftermath of the Thirty Years’ War (1618–48), which had destroyed large parts of Europe. As to the ius ad bellum, which governed which legal entities were entitled to conduct war, this had in discussions conducted parallel to the Dutch War of Independence (1568–1648) been limited to holders of ‘sovereignty’, as coined by the French jurist and political philosopher Jean Bodin (1529–96); non-sovereign rulers and political units with only limited sovereignty had thus been denied the right to conduct war. The definition changed the status of the territorial estates, such as the Pomeranian Landstände, which had still participated in the conferences, leading to the Peace of Westphalia.16 The same applied to the many princes and free cities, which received their fiefdoms from the Holy Roman Emperor and were no longer considered sovereign rulers. What had seemingly been a clear-cut division was complicated again by the Peace of Westphalia: it gave the German princes the so-called ‘Bündnisrecht’, in other words the right to conduct their own foreign affairs, which some jurists immediately interpreted as ‘sovereignty’. The issue being a most complex one, it was to take until the large congresses after the Peace of Westphalia to settle whether the German princes should be regarded sovereign rulers or not. Linked to this query was the question as to whether they should be entitled to receive and send ambassadors (ius legationis); the matter was so contentious that it sparked a fierce pamphlet war at the Congress of Nijmegen (1678–79).17 It resulted in the German princes being permanently denied the right to participate in multilateral peace congresses as independent parties. The same applied to the associations representing the imperial circles (Reichskreise), established since the 1650s, which were also refused to participate as fully accredited political units. Similarly, the Hanseatic League, which represented the interests of an international array of trading cities and which had long acted as a ‘legal person’ on the international stage, was now—because no sovereign State and due to its partial dissolution—by and large excluded from inter-state affairs, a fact, however, which did not prevent it from being included in international agreements well into the 18th century.18 As to the members of the Imperial Diet, their status was eventually reviewed: were they able to demonstrate that they were independent political units, which they generally did by wearing a royal crown not linked to the imperial realm; they were, after all, allowed to participate in multilateral peace congresses.

(p. 635) 3.2.  War in Europe—War Overseas?

The only exceptions to its inter-state character international law allowed for after the Peace of Westphalia were agreements between States and trading companies, which in some regions of the world enjoyed a kind of veiled sovereignty and to which the English crown even extended the ius belli ac pacis (the right to conduct war and conclude peace) and ius legationis (the right to receive and send ambassadors). It consequently was not uncommon for the heads of some of the trading posts to put on an extraordinary display of splendour which made them look little less than the monarchs they represented. This indicated just how powerful the British East India Company and the Dutch East/West India Companies were in international politics, whose main function it was, according to Grewe, to prevent the transfer of the European notion of the State to territories outside Europe.19 Indeed, there were cases where some of the European trading companies were at war with each other, but where their conflict did not impinge on peace in Europe. This observation reflects that from the end of the 18th century there was a degree of regularity for European conflicts to continue outside Europe. It was by no means a given, though, as the hemisphere beyond the Pillars of Hercules had long been regarded as an area subject to its own laws, a sphere ‘beyond the line’ to which the ‘strict norms of international law as determined by the political circumstances of Europe’ did not apply.20 If one considers, however, that the main opponents in Europe—excluding the Habsburg emperor, who only developed an interest in colonies and world trade after the transition of the Spanish Netherlands to his realm in 1713—were also colonial powers, it follows that decisions in Europe had to take interests beyond Europe—such as the fight over lucrative resources in Africa, the Americas, and Asia—into account. There were even conflicts in Europe, such as the wars of 1739 and 1755, which took their departure from conflicts in the colonies or at sea. It resulted in the trading companies demanding to have their voices heard at congresses, moreover the need for separate agreements to be drawn up that reflected the complex circumstances faced overseas, a world only understood by those who had experienced it.

3.3.  Types of War

The right to conduct war was one side of the coin. The other was—and still is—the enduring question concerning the iusta causa of war, the question as to when and under (p. 636) which circumstances a war is legal under international law. It was Grotius, referring back to scholars from the late scholastic period, who set the standard here: according to him, just causes to conduct war included the defence of a territory, its people, and its material objects against an aggressor, the recovery of a captured territory, its people and its material objects, and retribution. By contrast, he defined military action to achieve territorial enlargement, political independence, or rule over others as unjust causes to conduct war.

While Grotius’ interpretation found no explicit reflection in the politics of his time, it soon was to become the standard against which wars were to be judged: the outrage over the wars of Louis XIV (War of Devolution, 1667–68; Dutch War, 1672–78) and Frederick the Great (First Silesian War, 1740–42), which merely served to make territorial gains, can be traced back to the influence of Grotius, as can, on the other hand, the arguments put forward by the two rulers (succession to the duchy of Brabant, claims by the House of Hohenzollern to principalities in Silesia) to make their actions look legal.

Grotius made no allowance for preventive war, which in 1756—to mention the most striking example—Frederick the Great claimed to make use of when he attacked Saxony and started the Seven Years’ War. This type of war, which by definition was a construct, enabled rulers to go to war even when there existed—according to Grotius—no just reason for doing so. Well into the 20th century it was a much used excuse to legitimize military action.

Preventive war was a kind of intervention, the interference, for whatever reason, of one State in the affairs of another. Whereas such early scholars of international law as Christian Wolff (1679–1754)21 and Emer de Vattel (1714–67)22 considered religious motives as an unjust reason for intervention, Vattel—despite his respect for freedom and the right to self-rule—considered liberation from a despotic ruler as a possible just reason for intervention. It was a view that found an echo among revolutionaries, just as the question of intervention—now involving the great powers—was to remain on the agenda until well after the French Revolution.

The Franco-Spanish War having still been declared in the traditional manner in 1635 (with heralds reading out the declaration of war in ceremonies held along the enemy's border), it was by now more common for wars to be declared by legal notice. Reduced to an administrative act, it also entailed that diplomatic representatives were recalled. At the same time, it was not unknown for wars to be conducted without war having been declared; in the 18th century this increasingly took the form of reprisals, followed by a declaration of war at a much later date. In (p. 637) certain circumstances, though, reprisals themselves were regarded as declarations of war.23

If the ritual surrounding war receded at this time, it still remained an important aspect of inter-state relations. This was especially so when States looked for confrontation. The most telling example here is Britain's insistence on the flag salute, whereby non-British ships had to salute British ships on the oceanus britannicus. The refusal of the Dutch navy to do so led to no less than three wars; indeed, in the declaration of war 1659, the British stated the refusal of the Dutch to salute as the main reason to go to war. What titles and orders of precedence are in diplomacy, the flag salute is at sea.

3.4.  Neutrality

An area of great interest to scholars of international law has traditionally been that group of States qui in bello medii sunt, which do not conduct war. Why Grotius avoided using the Latin version of the term ‘neutrality’, although well-known during his lifetime, remains unknown; one reason might be that he strove to write in classical Latin prose, to which the term neutralitas was unknown, of course. As in all of his work, he distinguished between just and unjust wars, whereby he left it to each ‘neutral’ State to determine whether it considered a war to be based on a just or an unjust cause. If a State was seen to conduct war based on an iniusta causa, it was to be denied all support; if, by contrast, it was regarded as conducting based on a iusta causa, it was to be given the unhindered right to do so. As to less clear-cut cases, Grotius advised ‘neutral’ States to limit their exposure and risk, to conclude agreements with each of the belligerents, setting out the details of their particular relationship.

Already contemplated by Machiavelli (1469–1527), the subject of the role of neutral States during wartime was nothing new. Bodin had reflected on it with a positive undertone and Johannn Wilhelm Neumayr von Ramssla24 (1570–1644) had written a dissertation on it five years before Grotius’ De jure belli ac pacis libri tres was published in 1625. Judging from the rich body of surviving texts, neutrality governed by legal agreement shaped inter-state relations until the French Revolution, whereby it remains open whether, and if so to what extent, this was due to the influence of Grotius. In the post-Westphalian era, however, the question of whether a war was based on a just or an unjust cause became redundant to neutral States and was no longer referred to in the agreements they concluded with belligerents; rather, neutral States (p. 638) came to take no position and to engage with belligerents in an equal and impartial manner. If one considers that it was the interest of States, as opposed to moral and religious interests, that determined the post-Westphalian order, this development—as already discussed by Cornelis van Bynkershoek (1673–1743),25 Emer de Vattel, and Martin Hübner (1723–95),26 who respectively examined the right of belligerents to cross the territory of neutral States—was both logical and comprehensible. It also was the precondition for institutional neutrality to become conceivable, and for ‘armed neutrality’ to emerge, as was the case in 1780 when a group of States formed a ‘neutral alliance to defend the rights of neutral States by armed force’.27 Only at the time of the French Revolution, when confessions—in this case avowal to a certain type of State—became important again, did the term ‘neutrality’ find application in yet another context.

3.5.  The Laws of War

Whether Grotius can also be regarded as the authority who defined the ius in bello, the laws of war, for the modern period shall at least for the present remain an open question here. Judging from the preliminary discourse to De jure belli ac pacis libri tres, in which Grotius elaborated on the disastrous decline in the conduct of war, the appalling disrespect of morals and laws during the French Wars of Religion, as already discussed by Balthasar Ayala (1548–84)28 in 1582, one would expect him to argue for a humanization of war. Indeed, Grotius writes of a ‘degenerate conduct of war’ that would even cause barbarians to be ashamed. What derives from this is a twofold approach to the resolution of conflict: on the one hand, the preference to deter rulers from conducting war, especially when based on a futile reason, and to settle differences by way of negotiation, a compromise, a third-party verdict, a draw, or even a duel between the rulers in question; on the other hand, in the case where all preventive measures fail, the promotion of a shared understanding that there exists a set of laws that applies during war. Its most important objective was to moderate and humanize the conduct of war and to limit its expansion in time and space. It did not explicitly assure the safety of civilians, though, nor did it explicitly prohibit the destruction of enemy property and religious sites. The proposed legal system (p. 639) therefore corresponded only partially with what Grotius had considered elsewhere as acceptable with regard to war.

Set out on no more than one page, a closer look at Grotius’ opus magnum reveals that he revoked his arguments for such a legal system just a few pages later, citing existing laws, Christian charity, and the need for belligerents to act with moderation. One can criticize Grotius for his lack of coherence, or praise him for his willingness to address the tension between the ius gentium naturale and the ius gentium voluntarium. Whatever view one takes, post-Grotian thinking on the laws of war and the protection of civilians, in particular, has since moved a long way. Frederick the Great was to later boast that his wars were not even noticed by the civilian population. The development of new types of war, such as the ‘cabinet war’, which aimed to outmanoeuvre rather than to defeat the enemy, reflected this new thinking on the protection of civilians during wartime. It did not mean, however, as exemplified by the Seven Years’ War, that large-scale battles disappeared altogether. Post-Grotian writing on the laws of war also expressed itself, unisono, against the killing of prisoners of war. Again, theory translated into practice and it did not take long for ‘cartels’ to be established to govern the exchange of prisoners of war; each rank being accorded an agreed price, the cartels attempted to achieve as even an exchange as possible.29 Less common, by contrast, was the long-term detention of prisoners of war, especially of specialists like seamen, which the enemy was more likely to integrate into his own ranks than to leave idle. But it was also in another respect that the laws of war reached well beyond Grotius: they condemned the use of chemical and cluster weapons long before the Hague Conventions (first negotiated in 1899) translated this principle into law.

4.  The Peace of Westphalia as a Turning Point in the History of International Law

Most historians and historians of international law assume that the Peace of Westphalia was of fundamental importance to the development of laws of peace.30 There is little one can say against this, except that there have been important changes as to (p. 640) how peace has been concluded and framed within international law.31 If war has its rituals, the same applies—perhaps even more so—to peace.

The Peace of Westphalia—consisting of the Peace of Münster and the Treaties of Münster and Osnabrück—regulated who was entitled to attend a peace congress. Indeed, it had not been a given that princes of the Holy Roman Empire—as well as such lower ranks as the free imperial cities and imperial knights—were admitted to the ‘congress’. At the same time there existed the expectation, which the admission of the princes and lower ranks turned into a rule, that each political unit involved in a military conflict—whether large or small, Protestant or Catholic, a monarchy or a republic, with a large army or a small one—should be entitled to represent its concerns. This rule was modified again at the Congress of Nijmegen, when the admission of the princes was revoked; they also were not consulted at smaller peace congresses (for example, Breda 1667) or when a settlement had already been reached ahead of a congress (for example, Utrecht 1713, Paris 1763, and Paris 1783). Still, the Peace of Westphalia established peace congresses as the principle forum for conflict resolution; they were to remain of central importance at least until the Congress of Vienna.

Further, the Congresses of Münster and Osnabrück also instituted the form of negotiation that was to characterize the practice of international law until the Congress of Vienna. If at the time of Charles V (1500–58) rulers had still met in person to negotiate peace, they no longer attended and represented themselves at peace congresses after 1648. Along with this development plenary sessions were replaced by more private meetings and ceremonial pomp by professional politics. Only the Congress of Vienna was to be an assembly of emperors, kings, and other statesmen again. Rather, rulers were represented by plenipotentiaries, in general three for each of the great powers, belonging to different strata of society, and holding different qualifications. These, in turn, adopted the titles, ceremonial, and other rights of the sovereigns they represented. It was an act that repeatedly resulted in dispute, over the form and language of written authorities, the use of titles, and the order of precedence. It no doubt was due to details like these that the congresses preceding the Congress of Vienna took as long as they did. At the same time, it was no mere vanity that was at stake here but, it should be emphasized, the very foundations of a State's power and rights.

The plenipotentiaries—to return to the main argument—never met in plenary sessions, but sought to advance their arguments and interests in meetings under four, sometimes more, eyes. Key to this process was the written documentation of everything that was said; it is for this reason that the peace congresses of the early modern (p. 641) period produced such large quantities of paper. It remains one of the outstanding tasks for the historians to systematically compile and interpret—like the Acta Pacis Westphalicae, one of the largest editing projects of the last fifty years—the papers produced at the other peace congresses. However ambitious, such a project would set an end to no more than haphazard collections of papers—generally published privately shortly after the event they record—being available to the historian. Negotiations focused on the conversations each party had held and on the positions written assurances had been obtained on, all of which were exchanged; the form of negotiation only became easier at the Congress of Vienna, when specialized committees were established to address specific topics, each involving only those plenipotentiaries who had a proven interest in the topic under debate. Likewise, responses, replies and rejoinders were exchanged, whereby a so-called ‘protest’ was able to render a claim or counterclaim futile. It was a practice that emulated the procedure followed by High Courts in earlier centuries.

4.1.  The Mediator

Mediators played a key role in the negotiations between belligerents as well as in the production and distribution of position papers and treaty texts. Their legal status changed substantially after the Peace of Westphalia. If the apostolic nuncio Fabio Chigi (1599–1667) and the Venetian diplomat Alvise Contarini (1597–1651) had still been widely accepted as mediators in Münster, who not only acted as couriers, but also contributed substantially to the peace negotiations (with the suggestions expressed by the representative of the Holy See being received with considerable scrutiny), the legal status of the mediator was to become a matter of intensive inter-state debate during the so-called ‘Dutch phase’ of the history of international law (with the exception of the Treaty of Karlowitz,32 all of the decisive treaties negotiated between the 1660s and the War of the Spanish Succession were concluded in Dutch cities).33 It resulted, as duly recorded in several documents at the time,34 in a considerable curtailment of the authority of the mediator. Distrust in the ability of the mediator was also expressed in the academic writing of the time: only few scholars—next to the established Samuel von Pufendorf35 (1632–94), the younger Johann Friedrich (p. 642) Wilhelm Neumann,36 Ernst Friedrich Meurer,37 and Friedrich von Stephani38—were prepared to accord mediators competencies that extended beyond the role of notary and courier to that of arbitrator and decision-maker. In the second half of the 17th century, the role of the mediator thus became ever more precarious, last but not least because the great powers were simply too proud to place their destiny into the hands of a ‘smaller power’; moreover, a mediator who did not even have the moral authority the representatives of the Holy See had once brought to the conference table.39 The consequence of this development, as apparent in the political field and the literature on international law, was that one dispensed with mediators. Already the case when the War of the Spanish Succession was settled, it became the norm in the 18th century. A rare exception was the Treaty of Teschen (1779),40 where France and Russia—respectively allied to the adversaries—acted as ‘mediators’.

Whether the Peace of Westphalia fundamentally changed the way language was used in the negotiation of peace treaties is less certain. While there existed the general expectation that peace treaties would be formulated in Latin, as happened—with the exception of the separate peace between Spain and the Netherlands, which was set out in Spanish and Dutch—with the instrumenta pacis of 1648, there existed no ‘binding’ language of negotiation in Münster/Osnabrück as yet. The general assumption, however, that French replaced Latin after 1648 cannot be upheld; from the Treaties of Nijmegen (1678/79) to the Treaty of Ryswick (1697)41 and the Treaties of Rastatt and Baden (1714)42, there have time and again been peace treaties which have been written in Latin. Still, it is probably correct to observe that French became the prominent language in inter-state diplomacy after 1648.43

4.2.  The Peace Treaty

The peace treaty, the result of verbal and written negotiations often lasting years, had to meet—whether formulated in Latin, French, Spanish, or even German—certain formal criteria. Ideally set out like a medieval charter, it generally contained an invocatio—an appeal to a supernatural agency as well as the names and titles of the (p. 643) signatory parties (and those of their plenipotentiaries), which right into the 18th century acted as legal persons rather than political units—and a kind of arenga—which graphically bemoaned the horrors of war, the loss of Christian blood, and sometimes also described in metaphorical language how the respective rulers simultaneously arrived at the decision to conclude peace (as in the Treaty of Utrecht between England and France).44 The set phrase respublica Christiana, which had been used in both a supra- and inter-denominational manner, was in the decades after the Peace of Westphalia gradually replaced by other phrases, interestingly referring not so much to the balance of power, as emphasized in political pamphlets,45 but to peace and security in Europe, which was to be restored.46 Following the preamble, the conditions for peace were set out, which after the experiences of 1648 were to be formulated in as precise a manner as possible. They were succeeded by details about the ratification of the treaty, the sanctions to be applied in case of contravention of the treaty, the signatures of the diplomats, and the date and place where the treaty was signed.

Unlike in the medieval period and the first half of the early modern period, when the validity of peace treaties was limited to the lifetime of their signatories or a set period of time (usually five, nine, twelve, or one-hundred years), the peace treaties of the second half of the early modern period not only included no indications of liability nor details of compensation, but were also considered infinite.47 Indeed, it was only in the case of the Ottoman Empire that peace treaties were still limited, but then they served short-term ceasefires rather than long-term peace. As to the guarantee of peace, the provision of hostages was, with the exception of the Treaty of Aix-la-Chapelle,48 discarded after the Peace of Westphalia. Third States occasionally offered guarantees, but this was by no means the rule; rather, the signatory parties had come to believe that their own power, or that of their allies, was sufficient to guarantee peace. In reality it was only when there was a considerable imbalance in power that the weaker of the signatory parties contemplated asking a stronger ally for a guarantee. This occurred, for example, after the War of the Spanish Succession (1701–14) when guarantors supported Portugal in its efforts to conclude peace with the Bourbon states.

Peace treaties could also provide for commissions, generally composed of representatives from two powers (the Treaty of Aix-la-Chapelle provided for a French-British (p. 644) commission), to implement what had been set out in the peace treaty (for example, new boundaries) or to negotiate whatever had been impossible to negotiate during the peace congress (for example, the establishment of a cartel to govern the exchange of prisoners of war).49 As late as in the last decades of the 17th century, voices could be heard who wanted the Pope to act as an arbiter (or even super-arbiter).50 While arbitration did not completely disappear from inter-state relations (England reverted to it on several occasions in the second half of the 17th century), it played a much less significant role than made out by the political press.

Following ratification, peace treaties had to formally and publicly be proclaimed by the signatory parties, the respective rulers or, as was the case in the Netherlands, the States-General. This could be elaborate affairs, such as in Münster in February 1649. The treaty text would then be lodged with parlement for approbation or—as was the case in England, Spain, and Portugal—be brought to the attention of the houses of representatives. Although not always explicitly mentioned in the treaty text, disarmament, reflected in the reduction of soldiers and the military budget, usually followed the conclusion of peace. In the case of England, for example, it was not only empty coffers, but also pressure from parliament which ensured that peace treaties were followed by disarmament.

4.3.  The Ottoman Empire

A word should be added with regard to the relations between the Ottoman Empire51 and the States of Western, Central, Southern, and Eastern Europe under international law. While relations between States belonging to the christianitas were based on the principle of aequalitas, and while their existence was even at times of disagreement, such as over ceremonial matters, not called into question, this was different in the case of Ottoman-European relations. The principle of aequalitas did not apply here and there existed no provisions under international law that allowed the Ottoman Empire and the European States to meet at eye level; rather, there simply existed the Ottoman Empire's claim that it was superior to its Christian partners, a notion that reflected in its unwillingness to conclude permanent peace treaties and to define its borders. Only after the conclusion of the Treaty of Karlowitz,52 which set an end to the disastrous defeats suffered by the Ottoman forces, did the Sublime Porte—in what came to be known as the ‘tulip period’ in Ottoman (p. 645) history—move closer to European notions of international law and open up to ‘Western’ influences.

4.4.  Congresses to Guard Peace

Other than the congresses held during warfare to broker peace, a few congresses were also held, with war in sight, to guard peace. The two most notable examples are the Congresses of Cambrai and Soissons held in the 1720s, which respectively sought to establish a European security system based on the abdication of territorial claims. The negotiations were unsuccessful, though, and the congresses dissolved without lasting results. Still, they provided a model that diplomats in the age of Metternich (1773–1859) were to develop one-hundred years later.

5.  Diplomacy

‘Normal’ inter-state relations in Europe as well as with the Ottoman Empire were established and maintained by ‘permanent’ diplomats, who carried a letter of credence from the sovereign they represented and resided at and reported from the court they had been sent to.53 This reads a lot simpler than was the reality actually: this was due, on the one hand, to the fact that the term ‘diplomat’ stood for a great variety of officials holding different ranks and, on the other hand, to the fact that the terms ‘diplomat’ and ‘spy’ were often still aligned, making diplomats look more like adversaries than advocates of peace. As far as diplomats were of noble stock, as the vast majority of them were, they generally served abroad with the expectation to then pursue a gleaming career at their own court; it explains why so few of them had any interest in extending their stays abroad.54 Many nobles even hesitated to accept posts abroad, or only did so contre coeur, as the pay did not suffice to maintain social obligations at home. To be a diplomat was for many a financial disaster which weighed heavily on their private assets.

As to the diplomatic ranks used at the time, the diplomatic manuals compiled by Abraham de Wiquefort (c. 1598–1682) and François de Callières (1645–1717) provide (p. 646) valuable information.55 They belonged, like Jean Rousset de Missy's (1686–1762) Mémoires sur le rang et la préséance entre les souverains de l’Europe (Amsterdam 1746), to the ‘set reading’ of a diplomat. At the top of the diplomatic hierarchy stood the ambassadeur, a high-ranking official which only a major power could dispatch. Medium-sized and smaller States could only send an envoyé or even resident, who no longer had to be of noble stock. Indeed, in the case of the English diplomatic service, nobles were the exception rather than the rule. Underlying diplomatic relations was the understanding that corresponding posts would for the most part be filled at the same level, that the French ambassador in Vienna enjoyed the same powers and privileges as the imperial ambassador in Versailles. If a State decided to dispatch a lower-ranking diplomat—such as a resident rather than an envoyé—it usually was an indication that relations had deteriorated.

Further, the practice continued to dispatch ‘temporary’ diplomats, so-called special envoys, abroad. These were important to attend special functions, but also to intervene when an ally looked to change sides. At the time of church elections, the court of the Holy Roman Emperor also made use of special envoys to ensure that no Francophile candidate would be elected and that the neo-electus would receive Imperial assurances right after his election.56 The Repertorium der diplomatischen Vertreter aller Länder seit dem Westfälischen Frieden, a publication project started in the 1930s, provides an insight into the manifold reasons special envoys have been dispatched for in the past.57

Diplomats had to report back regularly—in either open or enciphered format—about developments and people in the State to which they had been dispatched. Some diplomats also maintained, further to the formal correspondence they had to maintain, correspondence with other officials, occasionally even with the sovereign they represented; Eugene of Savoy (1663–1736), for example, maintained a whole network of secret correspondence.58

As already mentioned, every diplomat had the same ceremonial rights as the sovereign he represented. This repeatedly led to conflicts, such as in London in the 1660s when the Spanish and French ambassadors had such a fierce row over the order of precedence that it ended in bloodshed. The best strategy to avoid conflict was to avoid each other. This applied especially to peace congresses, where diplomats met day after day and where the many official events resembled powder kegs.

(p. 647) Going back to the time of Louis XIV, France built up a network of diplomats much larger than that of any other State. The many volumes of the Recueil des instructions données aux ambassadeurs de France are a testimony to this history. Unlike many other States, France also dispatched diplomats to smaller courts, courts that it considered important for political or strategic reasons. It was a policy most other States could not afford, especially when it came to the dispatch of diplomats to the many German courts. Other States, such as Russia, had yet another problem: they first had to establish a diplomatic service, a challenge which not infrequently led them to draw on the talent of their neighbours. The Sublime Porte, by contrast, ceased to dispatch resident diplomats to Europe at this time. It was a development that was to have serious consequences for all foreign diplomats on the Bosporus: if they had already led a perilous existence there, they now witnessed long-established norms being abandoned and the immunity of the diplomat being placed in question.59 Wiquefort went so far as to speak of a total disrespect of international law in the Ottoman Empire.

At times diplomats succeeded in developing norms of international law away from the peace congresses. One such case was the agreement over how far a coastal State's sovereignty extended into its adjoining waters, a topic of intensive debate since the beginning of the 18th century. If the dominant sea powers had repeatedly—and unsuccessfully—tried to claim entire oceans in the past, they came, at the end of the 1780s, to agree on what constituted a State's territorial water. There was discussion over a two- or three-mile-zone, the views of Hermann Conring (1606–81) and Johann Gryphiander (1614–52), both experts on international law, that the matter should be decided according to local custom, and the idea to either use sight distance or cannon range as a criterion.60 In the end agreements were reached that soon became accepted international law: involving the British, French, and Russian States, they defined territorial water according to cannon range. It was to take another couple of decades, until the 19th century, for the three-mile limit to be introduced.61 The case illustrates that diplomats could also be effective during peacetime, that they could advance issues important to international law that could not be advanced during wartime. The most impressive proof to this effect is the Jay Treaty (1794),62 which American and British diplomats negotiated in London and which settled several key conflicts between the two countries.63 Critically, it named the Saint Croix River as the boundary line between American and British interests in the north-east of North America.

(p. 648) 6.  International Law as an Academic Discipline

Academic writing on international law was concentrated in certain geographical areas in the early modern period. It was no accident that the first steps were taken by practitioners and scholars in the Netherlands, a political unit which time and again, either due to religious or to societal reasons, had been ravaged by war and which had to assert itself on the international stage. Equally, it was no coincidence that it was in the Netherlands that the law of the sea took its beginning. Some of Grotius’ main texts on international law focused on the sea,64 as did Bynkershoek's,65 who took a special interest in piracy.66 It probably is characteristic of the second half of the early modern period that academic writing on international law evolved in the smaller political units, States whose survival depended on legal detail rather than military force.67 Over many generations Leiden University thus produced a large number of leading scholars of international law. German-speaking universities tried to follow suit, such as Halle (as associated with Christian Wolff), Kiel (where a chair of international law was established shortly after the foundation of the university in 1665), and, above all, Göttingen (as associated with Georg Friedrich von Martens, 1756–1821). In Switzerland, Jean-Jacques Burlamaqui (1694–1748) made a significant contribution to international law, as did Johannes Loccenius (1598–1677) in Sweden, and Martin Hübner in Denmark. Whereas Loccenius68 focused on questions of piracy, Hübner69 wrote an insightful text on the protection of neutral ships during warfare.

But writing on international law was never limited to the universities as Gottfried Wilhelm Leibniz's (1646–1716) Codex juris gentium diplomaticus of 1693 and Emer de Vattel's Le droit des gens, ou principes de la loi naturelle of 1758 exemplify. Born in the Swiss principality of Neuenburg and later in the service of the Elector of Saxony, Vattel wrote with Le droit des gens an early modern bestseller, a landmark text which first made use of the term ‘société des nations’ (rather than some similar term with Christian connotations), moreover set out the premise that subjects of different religious belief constituted no threat, neither to morals nor the State.70

(p. 649) Progress in international law also would not have been possible without the many scholars who dedicated themselves to the editing of early theoretical texts and the records of the major peace congresses. Worth mentioning is the Huguenot publicist Jean Dumont (1667–1727), active at the imperial court in Vienna, whose multivolume Corps universel diplomatique du droit des gens was published between 1726 and 1739. In some respects it remains an indispensable source of reference even today. Carl Wilhelm Gärtner (1700–60) and Johann Gottfried von Meiern (1692–1745), the latter director of the archive in Hanover, saw to the early compilation of the records of the Peace of Westphalia.71 Last but not least, there is Martens’ important Recueil des principaux traités from the end of the 18th century that ought to be mentioned.

7.  International Law in a New Age

7.1.  The French Revolution and its Impact on International Law

To refer to the French Revolution and the age of Napoleon as a mere episode in the history of international law would be an exaggeration. Still, the revolutionaries tried, at times with direct reference to Vattel, whom they much revered, to move international law forward.72 An issue they actively sought to progress was the long debated idea of ‘natural borders’, which in several cases had already entered inter-state agreements. Further, they took an active interest in the right to intervention, arguably to ensure freedom and human rights, in reality to extend French hegemony. As already mentioned, the idea of the right to intervention was to enjoy—albeit against a different background—a revival after the Congress of Vienna. War thus assumed the character of a crusade and made the unwritten laws governing the ‘controlled’ conduct of war a thing of the past. Likewise, France undermined the established notion of neutrality in that it concluded a series of neutrality agreements in the late 1790s which explicitly allowed for its troops to cross neutral territory.73

(p. 650) 7.2.  The Congress of Vienna as a Turning Point in the History of International Law

The course for the future of international law was thus only set at the Congress of Vienna. It therefore is no exaggeration to speak of the twenty-five years between the outbreak of the French Revolution and the fall of Napoleon as a ‘peculiar transitional state’, characterized by such illegal acts as the execution of the Duke of Enghien (1772–1804) during the French Consulate and the bombardment of Copenhagen by the British fleet in 1807.74

The most important innovation was arguably that the term nations civilisées75 found entry into international law. It first emerged in opposition to the slave trade and replaced Christian notions of community as ‘the uniting spirit of international law’.76 Instead, inter-state relations were to be governed by the idea of a much more comprehensive community of ‘civilized nations’, which certain States, however, found difficult to accept.

As indicated, the term nations civilisées goes back to the initiative to make the slave trade illegal.77 It did not ostracize slavery as yet, though, but moved in that direction. A noble idea, the abolition of slavery was to prove a major challenge for some of the colonial powers, Spain and Portugal, in particular. Britain, by contrast, where an antislavery movement had formed in the 1780s, already made the slave trade illegal in 1807. It also showed that private organizations had come to take an interest in international law; henceforth they were to also have an impact on politics. Academic writing on international law has since praised the condemnation of the slave trade as one of the major achievements of the Congress of Vienna.78 Indeed, it was the first time that human rights were guaranteed by international law. However, whether Britain pursued international agreement on the abolition of the slave trade because of humanitarian concerns or because of economic reasons remains to be answered.79 The term ‘nations civilisées’ having found entry into international law, it is worth pointing out that the term ‘neutrality’ was also given a new quality at the Congress of Vienna. It was on this occasion that Switzerland, which for so long had refrained from entering any conflict, was accorded the status of a neutral State. It was to remain the only State with such status for some time, but served as a model for similar creations in the future (for example, the Vatican).

(p. 651) Another major innovation was laid down in the Vienna Protocol of 24 June 1814, a document signed shortly before the start of the Congress of Vienna. It decreed the unification of the Dutch Republic, the Austrian Netherlands (Belgium), and the Prince-Bishopric of Liège (Belgium) into the United Kingdom of the Netherlands and stipulated that all public offices were to be open to all citizens, disregarding religious affiliation. This was, in principle, a constitutional matter, but was to have an immediate effect on international law: for a State to be a nation civilisée, it henceforth had to be, at least in theory, a State neutral to confessional matters.

A third major innovation was the reorganization of diplomatic ranks, a source of permanent conflict in the past. The French Revolution no doubt had provided valuable groundwork here: if nations were equal, then respective diplomatic ranks had to be equal. A commission was thus appointed at the Congress of Vienna, which reported back three years later at the Congress of Aix-la-Chapelle (1818). If orders of precedence had previously been influenced by the power of the States that had dispatched diplomats, they now were simply set out according to date of arrival and alphabetical order. Only the papal nuncio, as a kind of doyen, was granted precedence to all.

Of major importance, at least in the decades immediately after the Congress of Vienna, was also the Concert of Europe. Initially supported by the Quadruple Alliance of Austria, Britain, Prussia, and Russia, as signed in Paris on 20 November 1815 (Treaty of Paris), it later—following the Congress of Aix-la-Chapelle—also engaged France. First discussed at the Congress of Châtillon (1814), the Concert of Europe was to meet at regular intervals to settle international conflicts by negotiation rather than force. This being so, it still reserved the right to intervention. Unlike in earlier centuries, however, when similar collaborative initiatives had all been futile, the Concert of Europe produced immediate results: based on the principle of legitimacy, the Congresses of Aix-la-Chapelle (1818), Laibach (1821), and Verona (1822) instituted a new international order and gave intervention the semblance of a ‘just’ measure. That the latter was subject to considerable criticism from liberal jurists like Johann Caspar Bluntschli (1808–81) is another matter.

The Congress of Vienna—together with its successor congresses—laid the foundation for the future. It therefore does not surprise that contemporary scholars of international law like Johann Ludwig Klüber (1762–1837) immediately set out to publish the conference documents.80 Subsequent generations took a different view: while they duly acknowledged the impact the congresses had on humanitarian (abolition of the slave trade) and economic (introduction of the freedom of movement, especially on rivers) issues, they also questioned the great powers’ claim to (and practice of) the right to intervention. The latter was particularly controversial when it was (p. 652) directed against liberal and democratic opposition movements which either appeared to or de facto did undermine a regime.81

8.  Conclusion

The period in the history of international law discussed here is arguably one of the most exciting in the whole of the history of international law. It illustrates that from the 16th century onwards the early modern State and State system required a set of rules that transcended such ‘old’ instruments of inter-state relations as, for example, arbitration. From the beginning of the 16th century, drawing on ‘Spanish’ exponents of second scholasticism, there thus emerged, headed by Grotius—the ‘father of modern international law’—an intensive debate about the ius ad bellum and the ius in bello as of concern to political actors at the time. Mirroring the negotiations leading to the Peace of Westphalia, the need for action became ever more urgent: on the one hand there was the need for ‘peace-making’, on the other hand the need for such formalities as ‘peace treaties’. European expansion and the emergence of colonial empires called for further rules; taking a long-term perspective, one is no doubt right to observe that the Seven Years’ War—which was a global military conflict involving most of the great powers—and the experience of revolution shifted the focus of international law from a preoccupation with war to a preoccupation with peace (Kant published his influential discourse on perpetual peace in 1795) and from a principal interest in inter-state competition to a principal interest in inter-state cooperation (whereby the family of States soon came to transcend the orbis europaeus and to include States in North and South America). Added to this should be the observation that from the time of the French Revolution international law, as challenged by private interest groups, advanced humanitarian and socio-political issues that would not have been of interest to 17th-century jurists primarily concerned with the laws of war. One can thus conclude that international law in the 150 years discussed here progressed in its traditional—regarding such questions as military intervention and diplomatic ranks—as well as into new fields: it is a development that continues to have ramifications even today.

  • Anderson, Matthew S The Rise of Modern Diplomacy 1450–1919 (Longman London 1993).
  • Duchhardt, Heinz and Franz Knipping (eds) Handbuch der Geschichte der Internationalen Beziehungen (9 vols Schöningh Paderborn 1997–), in particular vol 2 by Heinz Schilling (2007), vol 3 by Klaus Malettke (forthcoming), vol 4 by Heinz Duchhardt (1997) and vol 5 by Michael Erbe (2004).
  • Fisch, Jörg Krieg und Frieden im Friedensvertrag: Eine universalgeschichtliche Studie über Grundlagen und Formelemente des Friedensschlusses (Klett-Cotta Stuttgart 1979).
  • Grewe, Wilhelm G Epochen der Völkerrechtsgeschichte (Nomos Baden-Baden 1984).
  • Lesaffer, Randall (ed) Peace Treaties and International Law in European History: From the Late Middle Ages to World War One (CUP Cambridge 2004).
  • Schmitt, Carl Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Greven Cologne 1950).
  • Steiger, Heinhard Von der Staatengesellschaft zur Weltrepublik? Aufsätze zur Geschichte des Völkerrechts aus vierzig Jahren (Nomos Baden-Baden 2009).

Footnotes:

*  Translation by Uta Protz.

1  The Peace of Münster: Treaty of Peace between Spain and the Netherlands (signed 30 January 1648) (1648) 1 CTS 1. The Treaties of Münster: Treaty of Peace between the Holy Roman Empire and France (signed 24 October 1648) (1648) 1 CTS 271; and Osnabrück: Treaty of Peace between the Holy Roman Empire and Sweden (signed 24 October 1648) (1648) 1 CTS 198. Together, these treaties form the Peace of Westphalia.

2  WG Grewe Epochen der Völkerrechtsgeschichte (Nomos Baden-Baden 1984).

3  A still reliable source is D McKay and HM Scott The Rise of the Great Powers 1648–1815 (Longman London 1983); also worth consulting is HM Scott The Birth of a Great Power System 1740–1815 (Pearson Longman Harlow 2006); for a major contribution to the study of the history of international relations see H Duchhardt and F Knipping (eds) Handbuch der Geschichte der Internationalen Beziehungen (Schöningh Paderborn 2007) vol 2 covers the period up until the Peace of Westphalia; vol 4 (1997) the 18th century from the Great Northern War; and vol 5 (2004) the period 1785–1830; vol 3—covering the period from the Peace of Westphalia to the Great Northern War—is forthcoming.

4  H Duchhardt ‘“Westphalian System”. Zur Problematik einer Denkfigur’ (1999) 269 Historische Zeitschrift 305–15. See also B Fassbender ‘Westphalia, Peace of (1648)’ in R Wolfrum (ed) The Max Planck Encyclopedia of Public International Law (Oxford University Press Oxford 2012) at <http://www.mpepil.com>.

5  Treaty between France and Spain (signed 7 November 1659) (1659) 5 CTS 325 (‘Treaty of the Pyrenees’).

6  On the Treaty of the Pyrenees see the following two conference proceedings: H Duchhardt (ed) Der Pyrenäenfriede 1659. Vorgeschichte, Widerhall, Rezeptionsgeschichte (Vandenhoeck & Ruprecht Göttingen 2010) and M Gantelet et al (eds) La paix des Pyrénées et son impact en Lorraine et au Luxembourg/Der Pyrenäenfriede und seine Auswirkungen auf Lothringen und Luxemburg (Presse Universitaire du Luxembourg Luxembourg 2010).

7  There exists an abundant literature on Louis XIV and his court at Versailles. For a recent addition see C Quaeitzsch ‘Une société de plaisirs’. Festkultur und Bühnenbilder am Hofe Ludwigs XIV. und ihr Publikum (Deutscher Kunstverlag Munich 2010).

8  Treaty of Peace between the Ottoman Empire and the Holy League (signed 26 January 1699) (1699) 22 CTS 219 (‘Treaty of Karlowitz’).

9  Treaty of Peace and Friendship Between France and Great Britain (signed 11 April 1713, entered into force 18 April 1713) (1713) 27 CTS 477 (‘Treaty of Utrecht)’; Treaty of Peace Between the Emperor and Spain, and France (signed 7 March 1714) (1714) 29 CTS 1 (‘Treaty of Rastatt’); Treaty of Peace between the Emperor and Spain and France (signed 7 September 1714) (1714) 29 CTS 141 (‘Treaty of Baden’).

10  Treaty of Peace between Russia and Sweden (signed 30 August 1721) (1721) 31 CTS 339 (‘Treaty of Nystadt’).

11  As to the Treaty of Utrecht, see L Bély's definitive study Espions et ambassadeurs au temps de Louis XIV (Fayard Paris 1990). There, unfortunately, exist no comparable studies for the treaties of Rastatt and Baden.

12  Treaty of Aix-la-Chapelle (signed 18 October 1748) (1748) 38 CTS 297 (‘Treaty of Aix-la-Chapelle’).

13  See T Cegielski Das Alte Reich und die Erste Teilung Polens 1768–74 (Steiner Stuttgart 1988).

14  This is the main argument of PW Schroeder in The Transformation of European Politics, 1763–1848 (Clarendon Press Oxford 1994); the book sparked intensive international debate: see eg P Krüger and PW Schroeder (eds) ‘The Transformation of European Politics, 1763–1848’: Episode or Model in Modern History? (Lit Verlag Münster 2002).

15  H Grotius De iure belli ac pacis libri tres (Paris 1625), as readily accessible in JB Scott (ed) Classics of International Law (Clarendon Press Oxford 1925) vol 3; see also the contribution by P Haggenmacher ‘Hugo Grotius (1583–1645)’ in this volume.

16  H Langer ‘Die pommerschen Landstände und der westfälische Friedenskongreß’ in H Duchhardt (ed) Der Westfälische Friede. Diplomatie—politische Zäsur—kulturelles Umfeld—Rezeptionsgeschichte (Oldenbourg Munich 1998) 485–99.

17  H Bots (ed) The Peace of Nijmegen 1676–1678/79/La paix de Nimègue 1676–1678/79 (Holland Universiteits Pers Amsterdam 1980) (proceedings of the conference marking the tricentennial anniversary of the Treaties of Nijmegen, Nijmegen, 14–16 September 1978).

18  H Duchhardt ‘Die Hanse und das europäische Mächtesystem des frühen 17. Jahrhunderts’ in A Grassmann (ed) Niedergang oder Übergang? Zur Spätzeit der Hanse im 17. Jahrhundert (Böhlau Cologne 1998) 11–24.

19  Epochen (n 2) 351; further to WG Grewe and C Schmitt Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Greven Cologne 1950), see also J Fisch Die europäische Expansion und das Völkerrecht. Die Auseinandersetzungen um den Status der überseeischen Gebiete vom 15. Jahrhundert bis zur Gegenwart (Steiner Stuttgart 1984).

20  Epochen (n 2) 346.

21  CH Wolff Ius gentium methodo scientifica pertractatum (Magdeburg 1749), as readily accessible in JB Scott (ed) Classics of International Law (Clarendon Press Oxford 1934) vol 13; and M Thomann et al (eds) Christian Wolff: Gesammelte Werke (Olms Hildesheim 1972) vol 25; see also the contribution by K Haakonssen ‘Christian Wolff (1679–1754)’ in this volume.

22  E de Vattel Le droit des gens, ou principes de la loi naturelle (1758), as readily accessible in JB Scott (ed) Classics of International Law (Carnegie Institution Washington 1916) vol 5; see also the contribution by E Jouannet ‘Emer de Vattel (1714–1767)’ in this volume.

23  Epochen (n 2) 432.

24  JW Newmayr von Ramsla Von der Neutralitet und Assistentz oder Unpartheyligkeit und Partheyligkeit in Kriegszeiten (Erfurt 1620).

25  C van Bijnkershoek Quaestionum iuris publici libri duo (1737), as readily accessible in JB Scott (ed) Classics of International Law (Clarendon Press Oxford 1930) vol 1; see also the contribution by K Akashi ‘Cornelius van Bynkershoek (1673–1743)’ in this volume.

26  M Hübner De la saisie des bâtiments neutres ou droit qu’ont les belligérantes d’arrêter les navires des peuples amis (The Hague 1759).

27  Epochen (n 2) 450.

28  B Ayala De iure et officiis bellicis et disciplina militari libri tres (1582), as readily accessible in JB Scott (ed) Classics of International Law (Carnegie Institution of Washington Washington 1912) vol 2.

29  For examples see H Duchhardt Krieg und Frieden im Zeitalter Ludwigs XIV (Schwann Düsseldorf 1987) at 46–52.

30  A wealth of important literature was published on the occasion of the 350th anniversary of the Peace of Westphalia in 1998; for a review see J Arndt ‘Ein europäisches Jubiläum: 350 Jahre Westfälischer Friede’ (2000) 1 Jahrbuch für Europäische Geschichte 133–58; 10 years later, in 2008, a conference was held in Osnabrück to take stock of this research; for the conference proceedings see I Schmidt-Voges et al (eds) Pax perpetua. Neuere Forschungen zum Frieden in der Frühen Neuzeit (Oldenbourg Munich 2010).

31  See, also with reference to the next paragraph, H Duchhardt ‘Peace Treaties from Westphalia to the Revolutionary Era’ in R Lesaffer (ed) Peace Treaties and International Law in European History: From the Late Middle Ages to World War One (CUP Cambridge 2004) 45–58.

32  Treaty of Karlowitz (n 8).

33  The term ‘Dutch phase’ is taken from CG Roelofsen ‘Von Nimwegen (1676–79) bis Utrecht (1712–13): Die “niederländische Epoche” in der Geschichte des europäischen Kongreßwesens’ in H Duchhardt (ed) Städte und Friedenskongresse (Böhlau Cologne 1999) 109–16.

34  H Duchhardt Studien zur Friedensvermittlung in der Frühen Neuzeit (Steiner Cologne 1979) at ch 10, 89–117 (‘Friedensvermittlung im Völkerrecht des 17. und 18. Jahrhunderts: Von Grotius zu Vattel’).

35  S von Pufendorf De jure naturae et gentium libri VIII (Lund 1672); see also the contribution by K Haakonssen ‘Samuel Pufendorf (1632–1694)’ in this volume.

36  JP Felwinger and JFW Neumann De Mediatoris officio, eiusque requisitis (Altdorf 1676).

37  EF Meurer Mediator (Jena 1678).

38  F von Stephani De officio et jure mediatorum pacis (Frankfurt (Oder) 1702).

39  See eg Studien zur Friedensvermittlung (n 34) at ch 10, 23–88 (‘Arbitration, Mediation oder bons offices? Die englische Friedensvermittlung in Nijmwegen 1676–1679’).

40  Treaty of Teschen (signed 13 May 1779) (1779) 47 CTS 153.

41  Treaty of Peace Between France and The Netherlands (signed 20 September 1697) (1697) 21 CTS 347.

42  Treaty of Rastatt (n 9); Treaty of Baden (n 9).

43  G Braun ‘Verhandlungs- und Vertragssprachen in der “niederländischen Epoche” des europäischen Kongresswesens (1678/79–1713/14)’ (2011) 12 Jahrbuch für Europäische Geschichte 103–30.

44  Treaty of Utrecht (n 9).

45  H Duchhardt ‘The Missing Balance’ (2000) 2 Journal of the History of International Law 67–72.

46  H Duchhardt ‘Europa als Begründungs- und Legitimationsformel’ in WEJ Weber and R Dauser (eds) Faszinierende Frühneuzeit. Reich, Frieden, Kultur und Kommunikation, 1500–1800. Festschrift für Johannes Burkhardt zum 65. Geburtstag (Akademie Verlag Berlin 2008) 51–60.

47  Oblivion (oblivio) was considered the supreme law (suprema lex); see also J Fisch Krieg und Frieden im Friedensvertrag: Eine universalgeschichtliche Studie über Grundlagen und Formelemente des Friedensschlusses (Klett-Cotta Stuttgart 1979).

48  Treaty of Aix-la-Chapelle (n 12).

49  A Reese ‘Den Krieg verschieben—verkürzen—ersetzen? Die französisch-englischen gemeinsamen Kommissionen vor dem Siebenjährigen Krieg’ in H Duchhardt (ed) Zwischenstaatliche Friedenswahrung in Mittelalter und früher Neuzeit (Böhlau Cologne 1991) 245–60.

50  Epochen (n 2) 424.

51  See the contribution by U Özsu ‘Ottoman Empire’ in this volume.

52  Treaty of Karlowitz (n 8).

53  MS Anderson The Rise of Modern Diplomacy 1450–1919 (Longman London 1993).

54  See A Pečar Die Ökonomie der Ehre. Höfischer Adel am Kaiserhof Karls VI. (Wissenschaftliche Buchgesellschaft Darmstadt 2003) on this tension.

55  JC Waquet François de Callières, L’Art de négocier en France sous Louis XIV (Editions Rue d’Ulm Paris 2005).

56  H Wolf  ‘Der kaiserliche Wahlkommissar und die Entwicklung von Verfahren und Zeremoniell bei der frühneuzeitlichen Bischofswahlen’ in C Dartmann et al (ed) Technik und Symbolik vormoderner Wahlverfahren (Oldenbourg Munich 2010) 183–200.

57  L Bittner (ed) Repertorium der diplomatischen Vertreter aller Länder seit dem Westfälischen Frieden (1648–1715) (Stalling Oldenburg 1936) vol 1.

58  M Braubach Die Geheimdiplomatie des Prinzen Eugen von Savoyen (Westdeutscher Verlag Cologne 1962).

59  LS Frey and ML Frey The History of Diplomatic Immunity (Ohio State University Press Columbus OH 1999).

60  The first to set out cannon range in any comprehensive detail was C van Bynkershoek De dominio maris (The Hague 1703).

61  Epochen (n 2) 387.

62  Treaty of Amity, Commerce and Navigation between Great Britain and the United States (signed 19 November 1794) (1793–95) 52 CTS 243 (‘Jay Treaty’).

63  The Jay Treaty is named after the American chief negotiator John Jay (1745–1829).

64  eg H Grotius De mari libero (Leiden 1633).

65  De dominio maris (n 60).

66  Epochen (n 2) 356.

67  It is worth citing Grewe at greater length in this context (Epochen (n 2) 411): ‘It is no doubt curious that the French phase of the history of international law has nothing representative to offer.’ Also, the Oxford jurist Richard Zouch (c. 1590–1661) has to be excluded from the above general statement.

68  J Loccenius De iure naturae et navali libri tres (Ex Officina Joannis Janssonii Stockholm 1652).

69  Epochen (n 2) 439 fn 37.

70  ibid 332 f.

71  A Oschmann ‘Johann Gottfried von Meiern und die Acta pacis Westphalicae publica’ in H Duchhardt (ed) Der Westfälische Friede: Diplomatie, politische Zäsur, kulturelles Umfeld, Rezeptionsgeschichte (Oldenbourg Munich 1998) 778–803.

72  For a much cited statement by Vattel see Epochen (n 2) 381.

73  ibid 446.

74  ibid 485.

75  See the contribution by L Obrégon ‘The Civilized and the Uncivilized’ in this volume.

76  Epochen (n 2) 335.

77  See the contribution by S Drescher and P Finkelman ‘Slavery’ in this volume.

78  For an overview on academic writing on international law see K Strupp and HJ Schlochauer (eds) Wörterbuch des Völkerrechts (De Gruyter Berlin 1960–62) vol 3, at 276.

79  For literature on this point see H Duchhardt Gleichgewicht der Kräfte, Convenance, Europäisches Konzert (Wissenschaftliche Buchgesellschaft Darmstadt 1976) at 146.

80  JL Klüber Acten des Wiener Kongresses (9 vols Erlangen 1816–35).

81  M Vec ‘Intervention/Nichtintervention. Verrechtlichung der Politik und Politisierung des Völkerrechts im 19. Jahrhundert’ in U Lappenküper and R Marcowitz (eds) Macht und Recht. Völkerrecht in den internationalen Beziehungen (Schöningh Paderborn 2010) 135–60.