The peace of Westphalia and the seventeenth century

As Christian Reus-Smit and Richard Ned Lebow have argued, seventeenth century international society, and seventeenth century society more generally, was hierarchical.Footnote ¹⁴ Social and international standing was central. Defence of honour and the pursuit of glory were more or less taken for granted. In diplomacy that meant protracted and bitter disputes over precedence; the negotiations leading up to the treaties of Osnabrück and Münster provided ample evidence of such behaviour. Of course, as especially the smaller states sought to enhance their status this could lead to claims to something that might appear to an expression of a demand for equality, either with larger states or amongst themselves. The French delegation complained with evident exasperation, on both counts, of the demands of the smaller states, especially of ‘their very unjust demands […] desiring to receive from us the same honours that they grant us […] The Dutch, for example, refuse to see us if we make any difference between them and the Venetian delegates. The envoy of Savoy intends to adopt the same stance if we do not treat him like the Dutch.’Footnote ¹⁵ This was not, however, an equality based upon a general principle but a clamour by each for enhancement of its own status, preferably at the expense of others, in an international hierarchy. The extent and limits of Dutch ambition were recorded in another French note: ‘When we ask them if, therefore, they mean to aspire to any equality with the king, they say no, but also that we would do them a greater injustice if we made any difference between them and Venice or if we introduced any equality between them and a vassal of the Empire, who recognizes even the electors as his superiors.’Footnote ¹⁶ According to a modern historian, the Dutch, amongst the most vociferous in their concern for their own dignity, ‘requested incorporation into the hierarchy of states in a position immediately below the Emperor and the kings, but above the electoral princes, dukes and counts’.Footnote ¹⁷

As already indicated the settlement was perceived as restorative not innovative. According to Osiander, ‘[t]here was a consensus […] that the settlement should bring a return to the status quo ante bellum’.Footnote ¹⁸ Appeal to tradition was a common, and often effective, rejoinder to such innovations as were suggested. The French, for example, sought to smuggle in a significant change, abolishing the election of an emperor-designate in the lifetime of the existing ruler on the pretence that this was compatible with tradition, only for the German Electors to dismiss the suggestion as blatantly contrary to tradition.Footnote ¹⁹ Insofar as one can discern some sense of innovation, namely in restricting the rights of rulers to determine the religion of their subjects, the treaties can only be seen as an impediment to their authority.Footnote ²⁰

It has been claimed that Article 64 of the Treaty of Münster is ‘remarkable in its sweep’ in that, by recognising the rights of the states to conclude alliances with other states outside the Empire, ‘the article recognized a crucial prerogative of independent, sovereign states’.Footnote ²¹ Yet this claim is faulty on two grounds. In the first place, it is faulty because this was not a new right at all but one of the rights which was being reaffirmed.Footnote ²² It is faulty more importantly because it presumes a linkage between a right to conclude treaties, the state and sovereignty which was far from established in the middle of the sixteenth century. As the German historian Hainhard Steiger has pointed out ‘Sovereignty was not, in 1648, the presupposition of capacity in international law and membership in a European order of states.’Footnote ²³ Indeed, at this point, even beyond the confines of the Empire, capacity in international law was so far from being a monopoly of states that it could be recognised as adhering to the great trading companies, including the rights to conclude treaties, make war and conquer territory.Footnote ²⁴ Against this backcloth, in which states were far from having such a monopoly, in law as well as fact, deducing sovereignty from the possession of one of these rights is simple anachronism.

Something similar can be said for the term and concept of sovereignty itself. The concept in something akin to its modern form was known but not necessarily accepted as universally applicable. Indeed according to Derek Croxton, amongst the negotiators in Münster and Osnabrück, the French alone had a clear concept of sovereignty but were not inclined to extend it to the others, save for tactical reasons.Footnote ²⁵ In the latter case, when the French did suggest insertion into the treaties of a reference to ‘tous les autres droits de Souveraineté’ the offer was declined.Footnote ²⁶ The Latin term that appeared in the treaties, in provisions relating to the affairs of the Holy Roman Empire, not Europe as a whole, was ‘ius territoriale’, translated into German as Landeshoheit, as ‘Territorial Right in an English translation of 1710, and, more literally as ‘territorial jurisdiction’.Footnote ²⁷ These distinctions are not terminological quibbles. They are different attempts to capture an evolving package of rights, about which there is some disagreement, though it is clear that Landeshoheit did not amount to sovereignty. According to the later German constitutional theorist, Herbert Krüger, the term indicated ‘the sum of powers of domination, which is united in the hands of a territorial lord’, whose individual powers were characterised by the term Regalien. Between these individual Regalien, there was no ‘logical or inherent connection’. Attempts to induce some kind of conceptual order did not extend beyond distinctions between higher and lower Regalien.Footnote ²⁸ Only in retrospect did Landeshoheit come to be seen as something more coherent, as ‘the entire extent of that which belongs to the government of a territory’.Footnote ²⁹ Even that understanding of Landeshoheit did not amount to sovereignty as was acknowledged by those who put it forward.

In conclusion, there was little trace of sovereign equality in the peace of Westphalia or indeed of a modern conception of sovereignty at all. The peace itself was restorative not innovative in the eyes of its creators. Contemporaries were aware of the centrifugal tendencies in the Empire. After the devastation of the Thirty Years War they could hardly be unaware of them. But they did not approve of such tendencies, let alone justify them by reference to a conception of sovereign equality.Footnote ³⁰

Eighteenth century views

The eighteenth century saw a diminution in the obsessive concern with precedence and ceremony evident in the negotiations leading to the peace of Westphalia. Even from the perspective of the late eighteenth century, however, it appeared that the ‘time is not, however, long past, since the different Courts of Europe plunged into the warmest altercations on this account, and have quarrelled like madmen, or pouted like children, not because their Equality was invaded, but because their pre-eminence was not allowed’.Footnote ³¹ Eighteenth century society was still predominantly hierarchical. Glory and honour still counted for a great deal. Hierarchy was assumed to be the normal condition by Prince Kaunitz, Austrian foreign minister for most of the second half of the century. In his circular note of July 1791, on the eve of the collapse of the eighteenth century order amidst the French Revolution, Kaunitz sought to rally ‘the senate of the powers’ in order to shield their people from ‘the contagion of discontent, insubordination and revolt’ in the interests of the ‘community of institutions of all kinds, of internal administration, of gentle and tranquil manners, of enlightened opinion and of a beneficent and pure religion, which united them all in a single family of nations’.Footnote ³²

Although publicists sought, with some success, to extol the cause of interest against the passions, as providing a more stable guide for rulers and states, and although the more specific doctrine of raison d'état was gaining ground, considerations of precedence still impressed themselves upon those who sought to advise their rulers.Footnote ³³ Near the beginning of the century François Callières, a former French diplomat, published his De la manière de négocier avec les souverains which became an instant success and required reading for diplomats for the rest of the century.Footnote ³⁴ In it, he recalled that ‘Some other crowns attempted, during the negotiation of the peace of Münster, to introduce a pretended equality among all the Kings of Europe, but, notwithstanding that innovation, which was ill grounded, and unheard of till that time, France has remained in possession of its ancient right of pre-eminence […]’.Footnote ³⁵ Later he observed that while princes were governed by the same passions as other men ‘their greatness, and the real effective power which is annexed to their rank, gives them ideas different from those of common mortals’.Footnote ³⁶ Little had changed by the middle of the century when Rousset de Missy opened another highly influential guide to diplomatic practice with the warning that ‘The point of honour, rank, precedence, are the most delicate article of the political faith. Princes cede towns, even provinces, but it is not possible with all the skill of the most adroit negotiators to persuade them to cede a rank which they believe they are due.’Footnote ³⁷

Yet the eighteenth century did witness increased advocacy of the principle of the equality of states. The most influential statement, in the long run, came from Emer de Vattel:

Nor was Vattel alone. Dickinson's extensive study of the doctrine of the equality of states, published in 1920, ascribed significant weight to the lectures of Thomas Rutherforth, published in 1754–1756, two years before Vattel's Law of Nations.Footnote ³⁹ Rutherforth argued along similar lines to Vattel: ‘The law of nations considers each civil society as a moral person, and all the several societies as so many distinct persons in a state of nature.’Footnote ⁴⁰

Two reservations must be entered about the status and nature of this argument. First, it was counterfactual. It was counterfactual not just in the sense that Vattel noted, namely that this normative equality stood in contrast to inequalities of power or nature. It was counterfactual in that it did not accord with widespread perceptions and practices in his own day. Vattel knew this. That is evident in his comments on the relationship between one small republic, his native Switzerland, and a powerful kingdom, France.Footnote ⁴¹ Yet this did not affect the force of his argument which was, as he explicitly stated, a natural law argument. Similarly, Rutherforth explicitly rejected ‘mere usage’.Footnote ⁴² Neither had any need to turn to an historic event, not even the ‘famous peace of Westphalia’ as Vattel called it, in order to assert the principle of equality. Relying primarily on a contingent historical fact, upon ‘mere usage’, would have weakened their cause not strengthened it.Footnote ⁴³

A further obstacle to linking the peace of Westphalia with a general principle of equality was eighteenth century perceptions of the Holy Roman Empire. Most eighteenth century commentators did not perceive a conglomeration of independent and equal states under the shadow of the empty shell of a former empire as later interpretations would see it. That is consistent with the extensive survey of eighteenth century German conceptions by Bernd Kremer. According to Kremer the typical stance of eighteenth century German publicists was represented by the assertion of Johann Jakob Moser in 1773: ‘If a German regent should allow the title of sovereign to be bestowed upon him, the Imperial Court is fully authorised to strike down such self-description as contrary to the Imperial Constitution.’Footnote ⁴⁴ A little earlier Johann Jakob Schmauss sought to curtail the implications of the Imperial Estates’ right of consultation by arguing that this no more made them co-rulers than the estates’ right of consultation within the individual territories made them co-rulers.Footnote ⁴⁵ The corollary of the supposed triumph of the principle of the sovereign territorial state is, of course, the supposition that after 1648 the Empire no longer qualified as a state. But Kremer argues that this involves a projection backward of later concerns. The eighteenth century question in German minds was not, had the Empire ceased to be a state, but did the territories qualify as states, a question which was answered in the affirmative but without assuming this amounted to an assertion of the equality of all states.Footnote ⁴⁶

It was, moreover, not only the ambitious and competing rising powers within the Empire that could cause a threat and elicit condemnation. Thus, another eminent eighteenth century German publicist, Johann Stephan Pütter, concluded his historical survey of the Empire with the crisis of the Bavarian succession and the defeat of Habsburg schemes to acquire Bavaria and wreck the balance within the empire in the process. Subsequent scheming after the formal end of the crisis induced the formation of a ‘defensive League’, initially consisting of ‘the three Electoral Courts of Saxony, Brandenburg, and Hanover’ which, according to Pütter, ‘has only the preservation of the constitution for its object, which ought to be held sacred, not only by the supreme Head, but by every individual Member of the Empire’.Footnote ⁴⁷ Pütter concluded his account with effusive praise of none other than Frederick II of Prussia in his role as saviour of the Imperial constitution.Footnote ⁴⁸ The presumption here is not that the Empire was free of centrifugal, or centralising, conflicts but that it was a viable, if complex, structure whose constitutional provisions were meaningful. It was a presumption made by Edmund Burke, on the understanding that others would share it, when he invoked the condition of the Empire ‘not for an exact resemblance, but as a sort of middle term, by which India might be approximated to our understandings, and if possible to our feelings’.Footnote ⁴⁹

There is somewhat more evidence of a perception of the unusual significance of the peace of Westphalia in the context of the genre of histories of treaties and diplomacy that emerged in the wake of the peace. This was encouraged by the publication of copies of the treaties of the peace and the increasingly commercial dissemination of such texts as well as the professionalisation of diplomacy.Footnote ⁵⁰ Gabriel Bonnot de Mably, for example, confidently proclaimed in his Le droit de l'Europe fondé sur les traits that practically nothing prior to Westphalia played any significant role in contemporary Europe.Footnote ⁵¹ Jean Dumont also began his Nouveau recueil des traits of 1710 in 1648. However, the same author's Corps universel diplomatique, the text which dominated the field for much of the century, began in 800.Footnote ⁵² Even where chronology might suggest pivotal importance of the peace of Westphalia care needs to be taken. Thus, when Charles Jenkinson, later Earl of Liverpool, began his compilation with 1648 he did so not because of the Peace of Westphalia of October 1648 but because of the Treaty of Münster of January 1648 which set the seal on Dutch independence and because of the British interest in ‘raising an independent state in the Netherlands, out of the Austrian dominions; which became at once the means of lessening the interest of that House, and of raising up a firm and stable ally’.Footnote ⁵³ More broadly, as Iain Hampsher-Monk has pointed out: ‘The historical periodization “Westphalian” requires caution. For writers of Burke's generation, the watershed treaty in establishing the new order of state-integrity and a balance of power was the Peace of Utrecht (1713).’Footnote ⁵⁴ Continental commentators were more disposed to look to Westphalia. For those directly affected by the Thirty Years War and the peace that ended it anything less would be surprising. Again, however, caution is needed. When the French diplomat Joseph Rayneval described the peace of Westphalia as the basis of the ‘fundamental law of Europe’ he did so in the context of an account of a series of attempts to put an end to a history of conflict and diversity that was coterminous with the existence of the Holy Roman Empire. Rather than marking a revolutionary breakthrough it brought some calm to the troubled empire, albeit without extinguishing the longstanding animosities to which it was subject.Footnote ⁵⁵

In conclusion, almost none of the elements of the image of the peace of Westphalia as an epoch making transition to a world of sovereign equal states stands up to scrutiny let alone the concatenation required to generate that image. The obstacles to it are clear: a predominantly hierarchical view of international society in which so far as notions of equality were asserted at all they were derived from natural law doctrines; the perceived persistence of a viable German Empire rather than a collection of sovereign states; lack of consensus about the periodisation of European history and the lack of any perception of a revolutionary transition let alone of one dating from 1648 and constituting a modern era in some form or another. By the same token it is not difficult to see what would probably be needed to facilitate the emergence of the image: greater doctrinal insistence on equality that could find firmer footing in diplomatic practice; considerable slackening in the dominance of natural law arguments and the emergence of a historical sociology of law; greater consensus about the universality of a clear concept of sovereignty; the disappearance or marginalisation of structures that would be seen as manifestly incompatible with the image; some sense of a unified modern epoch in international relations. It was precisely such developments that took place in nineteenth century, though unevenly, gathering pace towards the end of the century but still facing considerable obstacles and doctrinal resistance.Footnote ⁵⁶

Nineteenth and early twentieth century views

It is natural to look to the impact of the French Revolution and Napoleon as an explanation of an abrupt transition. Martin Wight put it thus: ‘The levelling of the international community was completed by the French revolutionary and Napoleonic Wars.’Footnote ⁵⁷ While it is true that these upheavals were seen as putting an end to at least elements of the old order, not least, of course, by bringing an end to the Holy Roman Empire, the notion that they issued, either during these wars or after, in the triumph of sovereign equality is dubious.Footnote ⁵⁸ Revolutionary rhetoric of equality was almost immediately contrasted with French hegemonic ambitions and the impact of Napoleon was ambiguous. The ambiguity was well put from the perspective of the end of the nineteenth century by a German theorist: ‘An attempt to revive the forms of the old Europe for the new Europe came from the man who had reduced the old world to ruins. Vassalage appeared to Bonaparte as the appropriate form to maintain in dependence some small principalities bestowed by him on relatives and favourites.’Footnote ⁵⁹ Moreover, the Napoleonic system never lost a sense of impermanence.Footnote ⁶⁰ Even more important, it was the settlement at the end of the Napoleonic wars that shaped impressions of the international system for most of the century.

As is well known, the Congress of Vienna showed little respect, either in the conduct of the Congress or in its outcome for principled equality of states.Footnote ⁶¹ It produced what Gerry Simpson has aptly summarised as a form of ‘legalized hierarchy’.Footnote ⁶² It is true that the French Foreign Minister Talleyrand invoked the principle of equality, but only as a ploy to win French access to the deliberations of the Great Powers after which he promptly abandoned the idea.Footnote ⁶³ The fact that he thought it worth invoking at all though is not without significance. Similarly, the British Foreign Minister Castlereagh made some concession to the notion of equality in suggesting that the lesser powers should be provided with the pretence of their participation and consent.Footnote ⁶⁴ The principle that animated the Congress, so far as principle did at all, was well formulated long before the Congress met, at the height of Napoleon's power, by Friedrich Gentz:

This qualified sense of equality was quite compatible with hierarchy and was to become a recurrent reference point in the arguments of those who were critical of more expansive concepts of equality. Ironically, this qualified sense of equality arguably could have been linked to 1648 but Gentz made no such move; producing instead a nuanced interpretation of the peace of Westphalia that emphasised its limitations.Footnote ⁶⁶

A less qualified notion of the principle of sovereign equality did gain ground throughout the nineteenth century. One of the bluntest early assertions came from Chief Justice Marshall in 1825: ‘No principle is more universally acknowledged, than the perfect equality of nations.’Footnote ⁶⁷ But initially, where any argument was offered for this equality it took the form of the natural law argument already set out by Vattel. Indeed Vattel's argument was so influential that one late nineteenth century author rehearsed it, including the claims about the equality of the giant and the dwarf, without even bothering to mention Vattel by name.Footnote ⁶⁸ At about the same time James Lorimer, the most prominent critic of the doctrine of equality, complained of that ‘most baseless’ yet ‘prevalent theory of the equality of all powers […] which at the present day you will find set forth in all the books’. He added that Heffter ‘who as a German might be expected to be free from the confusion of mind on the subject of equality generally found in French writers since the Revolution’ was in fact a prime example of such confusion.Footnote ⁶⁹ Arguments for the principle were in fact quite diverse but typically not based on positive law.

The widely accepted view of the nineteenth century as the century of legal positivism, let alone the legal positivism of Austin, is an oversimplification. As Martti Koskenniemi has argued it is misleading to speak of the international lawyers of this period as ‘“positivists” who were enthusiastic about “sovereignty”’.Footnote ⁷⁰ It is notable that when the self-avowed positivist Lassa Oppenheim proclaimed ‘the downfall of the theory of the Law of Nature, which after many hundreds of years has al last been shaken off during the second half of this century’ he struggled to find many unalloyed positivist accounts of international law, identifying the ‘first real positivist treatise’ as a German text of 1874, Hall's English work of 1880 and then a cluster of texts appearing between 1895 and 1907.Footnote ⁷¹ Nevertheless, there was an increasing disposition to turn from natural law to what amounted to some kind of historical sociology. It is consistent with this trend that the Swiss international lawyer and delegate to the Hague Conference of 1907, Max Huber, produced the ‘first serious sketch for a historical sociology of law’ in 1910.Footnote ⁷² From this perspective the historical record was no longer an uncertain realm of contingency but could be construed as exhibiting evolutionary breakthroughs amongst which the peace of Westphalia was a potential candidate. That possibility was arguably reinforced by the conception that international law was strictly European in origin and in some respects in the extent of its application. That supposition was embodied in the titles of two early influential texts: Klüber's Droit des gens moderne de l'Europe, first published in 1819, and Hefter's Das europäische Völkerrecht der Gegenwart auf den bisherigen Grundlagen, first published in 1844.Footnote ⁷³ If international law was an evolutionary product of European law and if the principle of equality was a key principle of that law then it made sense to look for some point or period at which this principle had been adopted or had crystallised in European public consciousness.

Principle and public conscience could be held up against the positive law and diplomatic practice of a world of states that was still characterised by hierarchy and by the legacy of the European concert that originated at Vienna. It was precisely in this sense that Ernst Nys proclaimed the necessity ‘to denounce the illegitimacy of the pretensions of the European concert’.Footnote ⁷⁴ Yet others could take comfort from signs of resistance to the claims for hierarchy, including rights of intervention and rights to regulate membership of the world of states through the doctrine of constitutive recognition.Footnote ⁷⁵ The culmination of such trends came with the Second Hague Conference of 1907. There an intense debate arose over the composition of a proposed Permanent Court of Arbitral Justice, in which considerations of the principled equality of states were prominent.Footnote ⁷⁶ The occasion for the dispute was a proposal that while all states would have a right to appoint a judge to the court only the judges of the great powers would sit permanently. Against this proposal, the Brazilian delegate, Rui Barbosa, launched an impassioned defence of equality, protesting ‘that if the States excluded from the First Peace Conference have been invited to the Second, it is not with a view to having them solemnly sign an act derogatory to their sovereignty by reducing them to a scale of classification which the more powerful nations would like to have recognized.’Footnote ⁷⁷ The sovereign equality demanded by Barbosa went far beyond the qualified equality conceded at the beginning of the preceding century by Gentz. For Barbosa it was necessary not only that all have the same right but also that all should exercise that right equally. Conversely, ‘If, perforce, we insist upon referring to this condition of things as conditions of exercise, it will certainly be necessary to confess that there are conditions of exercise that may affect the very existence of the right and annul that right. The conditions of exercise respect the equality of right only when they are equal for those possessing the right.’Footnote ⁷⁸ The bare right to appoint judges was worthless unless all judges enjoyed the same conditions of that appointment, that is, unless they all sat for the same period.

Such doctrines were meant to apply, of course, only amongst the civilised states of Europe and by extension the Americas, with a handful of recent exceptions on other continents. A kind of doctrinal apartheid helped to maintain the contrast between a world of sovereign states and a world of colonies, protectorates and terra nullius. Within the heart of Europe the apparent triumph of nationalism and especially German unification seemed to simplify the mental map. German jurists remained sensitive to the complexities and ambiguities of the federal Reich founded in 1871 but such concerns increasingly came to be seen as archaic.Footnote ⁷⁹

While any one of these developments, the diminution of overt doctrines of natural law and the emergence of a historical sociology of law, doctrinal insistence on the equality of states and claims made on the diplomatic stage, the apparent simplification of the juristic map of the world, could promote the association of sovereign equality and Westphalia, the combination of them probably accounts for the linkage which became a central element of the Westphalian model. For it is precisely towards the end of the nineteenth century and the early decades of the twentieth that linkage of Westphalia and sovereign equality comes to be asserted typically in clipped formulations devoid of either supporting commentary or quotation from the treaties in which sovereign equality was supposedly enshrined. Thus T. J. Lawrence bluntly asserted that ‘The principles of the territorial character of sovereignty and the equality of states before the law were involved in the arrangements it made.’Footnote ⁸⁰ At the turn of the century the American jurist and diplomat Hannis Taylor asserted ‘that all states are formally equal and that territory and jurisdication are coextensive – was made the basis of the settlement embodied in the Peace of Westphalia’.Footnote ⁸¹ Slightly earlier the Frenchman Frantz Despagnet proclaimed that Westphalia established ‘the basis of the modern doctrine of international law’ including ‘the principle of the juridical equality of states’.Footnote ⁸² Another Frenchman praised Westphalia for bringing forth the ‘principle of the independence and equality of sovereign states’.Footnote ⁸³ Lassa Oppenheim added that with the Peace of Westphalia the ‘theory of the unity of the civilised world under the German Emperor and the Pope as its temporal and spiritual heads was buried for ever. A multitude of recognised independent States formed now a community on the basis of equality of all its members.’Footnote ⁸⁴ Assertions of this nature were repeated with such frequency that by the end of the 1920s an Italian, Andrea Rapisardi Mirabelli, devoted a doctorate to the Peace of Westphalia – a text upon which Leo Gross drew heavily – and proclaimed that Westphalia established the equality of states and ‘territorial sovereignty’ as the ‘veritable essence of the new order of things’.Footnote ⁸⁵ For Mirabelli Westphalia was not the product of the vision or prudence of the authors of the treaties but an historical necessity. Given the rise of nationalism and the fragmentation of Europe the only alternative to war, since the restoration of some kind of superior authority was inconceivable, was the Westphalian system.Footnote ⁸⁶

It is evidence of the unsettled nature of the debate that both the general trends of the age and the specific significance of the dispute at the Hague elicited quite diverse judgements. Thus, to many commentators of this period, some kind of superior authority was conceivable, though the conclusions they drew from this in terms of Westphalia and sovereign equality varied. In part this depended upon what they saw as the challenge to the doctrine of equality. There were two distinct challenges, though they could be elided. The first was the European concert or system of great powers. As already indicated Ernst Nys saw the European concert, rooted in the settlement at the end of the Napoleonic wars as a threat to the equality consecrated at Westphalia and as something that was inherently illegitimate.Footnote ⁸⁷ Some even took the debate about equality and the proposed Permanent Court at the Hague as a worrying sign of an attempt to revive the detested Holy Alliance.Footnote ⁸⁸ The second challenge, sometimes fused with the tradition of the European concert, came from the growth of international agreements of which the Hague formed a prominent part. Thus Lawrence had already concluded before the Second Hague Conference that recent developments ‘can have no other meaning than that the doctrine of Equality is becoming obsolete and must be superseded by the doctrine that a Primacy with regard to some important matters is vested in the foremost powers of the civilized world. Europe is working round again to the old notion of a common superior, not indeed a Pope or an Emperor, but a Committee, a body of representative of her leading states.’Footnote ⁸⁹ After the Second Hague Conference he again proclaimed the imminent end of equality but now on the grounds that ‘the society of nations has become self-conscious, and is preparing itself for the performance of legislative, administrative, and judicial functions’.Footnote ⁹⁰ In terms of both challenges however the notion that equality was threatened – whether this was feared or welcomed – was thought to be compatible with the notion that the principle of sovereign equality had been established at Westphalia and had lasted, either to the end of the eighteenth century or until the end of the nineteenth. In both cases the political reality of hierarchy was perceived as resistant to what was taken as the Westphalian promise.

A further barrier came from a group who did not welcome the claims made for equality at the Hague, raised principled objections to equality or at least equality in its unqualified form and cast doubt on the historiography that ascribed sovereign equality to Westphalia. Thus, reflecting on the Hague Conference, Frederick Charles Hicks complained that the presumption of equality, and more specifically equality in voting, had been an arbitrary decision by the Russian Czar. His displeasure was clear in his observation that: ‘Nevertheless, no unicameral legislative assembly in the world's history has been organized in a similar manner where not only do all units, great or small, have equal voting power but practical unanimity is required in order to carry a measure.’Footnote ⁹¹ Nor did he hesitate to quote a report of the London Times referring to Barbosa's ‘“fierce (farouche) exposition” of the extreme conception of the equality of all states and governments’ and drawing an analogy between such beliefs and ‘the old principle of the Polish veto’.Footnote ⁹²

In the most substantive study of the period devoted to the equality of states Edwin de Witt Dickinson insisted that discussion of the issue was typically characterised by a ‘remarkable confusion of thought and of statement’.Footnote ⁹³ The confusion amounted to a failure to distinguish between the conception of equality that Gentz held to be the only meaningful and practical one and the conception of equality that Barbosa held to be the only conceivable one. As Dickinson put it the distinction lay between equal ‘protection of the law or equality before the law’ and an ‘equal capacity for rights’.Footnote ⁹⁴ By the latter he meant the idea that each legal subject, here states, was supposed to have exactly the same rights and not merely the idea that each legal subject should have such rights as it happened to have protected. He did not reject ‘equal capacity of rights’ entirely but described it as an aspiration that properly followed the firm establishment of ‘equality before the law’. In international doctrine, however, he complained that this natural course of development had been inverted because of the ‘extraordinary influence of text-writers upon the law of nations in its formative period’.Footnote ⁹⁵

As that statement suggests Dickinson did not believe the doctrine of equal capacity for rights could be traced back to the Peace of Westphalia. Indeed he claimed that even in the nineteenth century there ‘has been much less said about the equality of nations outside the treatises of the publicists than one might reasonably expect’.Footnote ⁹⁶ Scepticism about the Westphalian provenance of the doctrine was also evident in a review of Mirabelli's text. There the reviewer was largely sympathetic, with exception of one major flaw:

For correction of the error he recommended Dickinson who did indeed point out that the peace expressly provided ‘for important inequalities of legal capacity in the reconstituted community of nations’.Footnote ⁹⁸

Yet the reviewer was right that repetition of the error was making it difficult to correct. It was still possible to try to do so. There was sufficient scepticism about the unqualified principle of state equality to call into question its plausibility and desirability as a normative principle as well as to question the linkage of sovereign equality and the Peace of Westphalia. It was not to be until after the Second World War that the linkage acquired such a hold, that, at least until recently, it became nigh on unquestionable.

Mid to late twentieth century views

The debate about equality flared up again at the end of the Second World War, especially in the San Francisco conference that established the UN Charter. That it would do so had been evident as far back as the 1942 Declaration by UN where even in matters of protocol the precedence of the Great Powers was asserted to the annoyance of the lesser powers.Footnote ⁹⁹ On the other hand the Declaration of the Moscow Conference of 1943 proclaimed the ‘necessity of establishing at the earliest possible date a general international organization, based on the sovereign equality of all peace-loving states, and open to membership by all such states, large and small’.Footnote ¹⁰⁰ Some care was even taken in other clauses of the Declaration to mitigate the appearance of great power hegemony.Footnote ¹⁰¹ Nevertheless it was impossible to avoid the clash between great power hegemony, built into the Yalta voting formula, and the principle of sovereign equality at the San Francisco conference.Footnote ¹⁰² At the end of the day it was the blunt insistence by the great powers that there could be an international organisation with a great power veto, or no international organisation at all, that determined the outcome of the principled argument. As the Prime Minister of New Zealand put it, ‘we felt that it was not, in the last degree, a question of the rule of unanimity or a question of the veto, whichever name we care to call it – it was a question of organization; a new world organization or no world organization’.Footnote ¹⁰³ It was still necessary though to provide some reassurance, or at least face-saving facade, for the smaller powers. The reassurance came in the form of the argument that the great powers should have special rights on the grounds of their special responsibilities and that they would exercise the former in exceptional cases with due regard to the interests of the wider community of states.Footnote ¹⁰⁴ In the language of Dickinson this meant that in matters of the equality of capacity of rights, there would be no equality. Interestingly, the Mexican delegate, García Robles saw in this same distinction ‘the juridical principle of correlation between powers and duties which safeguards the basic principle of equal rights of all states’.Footnote ¹⁰⁵ The doctrine of sovereign equality was to be salvaged amidst its open denial. Before long capacity for rights as a condition for any kind of equality was to be dismissed; being treated as an illegitimate criterion. In Resolution 1514 of 1960 the UN General Assembly proclaimed: ‘Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.’Footnote ¹⁰⁶ Following a similar logic, the new UN abandoned the practice of the League of Nations of making successful applications for membership dependent upon capacity for self-defence.Footnote ¹⁰⁷

In the post-war world the discrepancy between the doctrine of equality and the real distribution of powers was as great, if not greater, than ever. To John Herz it had reached ‘fantastic proportions’.Footnote ¹⁰⁸ To Robert Jackson manifest lack of capacity suggested the need to ask what meaning sovereignty could conceivably have.Footnote ¹⁰⁹ Yet the doctrine of equality, the doctrine of Vattel and the equality of the dwarf and the giant, increasingly triumphed in the sense that the normative presumption in favour of equality largely discredited principled arguments for hierarchy.Footnote ¹¹⁰ It was, moreover, an undifferentiated concept of equality that triumphed; one that owed more to the logic of Barbosa than that of Gentz and Dickinson.

It was this changing world in which Leo Gross published his article on the significance of the peace of Westphalia. There is nothing of significance in his account of the peace and its supposed significance that cannot be found earlier, especially in the work of Mirabelli which Gross refereed to so frequently. It is even possible to find, in a text published five years earlier by an Italian lawyer, Angelo Sereni, the following lament: ‘it is high time to revise the current opinion that the Peace of Westphalia, in 1648, definitely established the full and exclusive right of the various independent European states over their territories. In most cases, their power was neither absolute nor exclusive nor equal over all parts of their territory’.Footnote ¹¹¹ Sereni and his reservations about Westphalia were not remembered or extensively quoted in the following decades. Leo Gross's article became the standard reference point. There was no flurry of publications calling into question the doctrine of equality as there had been in the 1920s. It was no longer the case that it was merely difficult to correct the error of Mirablli and Gross, it was the case that almost no one even tried to. It is notable that a series of articles on the equality of states published in the Political Science Quarterly, beginning in 1945, set out from the Congress of Vienna and that it concluded with a two-part article by Adolf Lande entitled ‘Revindication of the Principle of Legal Equality of States, 1871–1914’.Footnote ¹¹² The presumption was that the principle of equality had been dominant before it was overturned at Vienna and had been reasserted. The purpose of the article was evident in the final sentence in which Lande asserted that the ‘decay of the European Concert […] conforms with the essential character of our international society’ and warned both statesmen and commentators against ‘drawing too hasty conclusions from the present position of the Great Powers in regard to the validity of the principle of the legal equality of states’.Footnote ¹¹³