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In early November 2015, the Belgian and Dutch press announced that a small land swap was in the making between Belgium and the Netherlands. Agreement has been reached at the local level that Belgium would cede a small peninsula in the river Maas [Meuse] of about 14 hectares – the size of 28 soccer fields – to the Netherlands. In return, Belgium would get a smaller piece of Dutch territory where it had already built a water lock.

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In April 1822, sailors from the British warships HMS Iphigenia and HMS Myrmidon, after a brief but fierce fight, captured two Spanish and three French slave ships off the coast of what is now Nigeria. Prize crews sailed the ships to Freetown in Sierra Leone, where the international mixed commission which was competent to hear cases regarding the slave trade decided to liberate the slaves found on the Spanish schooners, as well as those slaves found on a Portuguese ship which the British naval vessels had taken earlier.

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The centenary of the Great War in 2014 has generated impressive public as well as scholarly attention. It has all but overshadowed some other major anniversaries in the history of international relations and law, such as the quarter-centenary of the fall of the Berlin Wall (1989) or the bicentenary of the Vienna Congress (1814–1815). As with the turn of the year the interest in the Great War seems to be somewhat subsiding, and the anniversary of the most epic and dramatic event of the Vienna period (the Battle of Waterloo of 18 June 1815) is approaching, the commemoration of the Vienna Congress gains a bit of the spotlight.

The Congress of Vienna marked the establishment of a new political and legal order for Europe after more than two decades of turmoil and war following the French Revolution. The defeat of Napoleon (1769–1821) in 1813–1814 by a huge coalition of powers under the leadership of Britain, Russia, Austria, and Prussia gave the victorious powers an opportunity to stabilise Europe. This they intended to do by containing the power of France and recreating the balance between the great powers.

At Vienna, between November 1814 and June 1815, the representatives of more than 200 European polities – many from the now-defunct Holy Roman Empire – met to debate a new European order. The Congress of Vienna stands in the tradition of great European peace conferences, beginning with Westphalia (1648) and continuing with Nijmegen (1678–1679), Rijswijk (1697), Utrecht (1713), Vienna (1738), Aachen (1748), and Paris (1763) to the Paris peace conference that ended the American War of Independence (1783). Yet, in several ways, it was also a departure from it.

At the prior peace conferences, the major order of business had been to agree on the conditions to end war and restore peace. Whereas this implied discussions on the future order of Europe, the major interest was to settle the claims that lay at the origins of the war and the focus was thus largely backwards-looking. In the case of Vienna, peace had already been made between France and the major allies before the conference met. Peace had been formally achieved through the First Peace of Paris of 30 May 1814. This peace had taken the traditional form of a set of bilateral peace treaties between the different belligerents. In this case it concerned six peace treaties between France on the one hand and Britain, Russia, Austria, Prussia, Sweden, and Portugal on the other hand. These treaties were identical but for some additional and secret articles. Professor Parry published the treaty between France and Britain as well as these separate articles (63 CTS 171). On 20 July 1814, France concluded a seventh peace treaty with Spain (63 CTS 297). Article 32 of the identical treaties provided for a general congress at Vienna to ‘complete the provisions of the present Treaty’. The peace treaties contained the major conditions of peace, including the new borders of France. It was left to the Congress to lay out the conditions of the general political and legal order of Europe for the future.

Not even the return of Napoleon from Elba and the eruption of new war diverted the Congress from its forward-looking agenda. The congress was not suspended nor was a new peace treaty made at Vienna. After Napoleon’s defeat at Waterloo and the second restoration of the Bourbons to the French throne, a new set of peace treaties was made under the Second Peace of Paris of 20 November 1815 (65 CTS 251), between France and each of the four great powers of the coalition. Numerous other powers later acceded to the peace.

As prior conferences had done, the Vienna Congress produced a whole set of – mostly bilateral – treaties. But the conference also chose an innovative form for its closing as its main conclusions were formally laid down in a general instrument, the Final Act of Vienna of 9 June 1815 (64 CTS 453). This act was signed and ratified by the seven powers which had concluded peace at Paris on 30 May 1814, with Spain and some other powers later acceding. Article 118 of the Final Act incorporated 17 treaties which had been concluded at Vienna and annexed them to the instrument, thus committing all signatories of the Final Act to them. In turn, Article 11 of the Second Peace of Paris would later confirm the Vienna Final Act, as well as the First Peace of Paris.

As it is generally established in the scholarly literature, the new order of Europe which came out of the Vienna Congress was based on two main pillars. Firstly, the Vienna powers aspired to restore and safeguard the balance of powers and made this into a leading maxim in drafting the new territorial map of Europe. This was done by reducing France to its borders of 1792 – allowing it to keep some of its conquests from the Revolutionary Period – and strengthening its neighbours. The greatest riddle to the balance of power was the future of Germany. The solution was found somewhere between the extremes of a return of the  division of the Holy Roman Empire, which would have made it defenceless against new French expansionism, and its unification, which would have disrupted the balance of Europe. The new German Confederation would contain only 39 states instead of the over 300 of the old Empire. Within the Confederation, a balance was created between the two leading powers, Austria and Prussia, both of which made considerable territorial gains to ensure their capability to contain France, and each other.

Secondly, the Vienna order was built on the principle that the great powers – a group into which France retook its traditional place – would take common responsibility for the general peace and stability of Europe. The four victorious great powers had already agreed on this principle in different instruments prior to the Vienna Congress, the main one of these being the Treaty of Chaumont of 1 March 1814 (63 CTS 83). This ‘great power principle’ also determined the organisation and working of the congress itself. Although over 200 delegations were present, the major negotiations and decisions took place in the Committees of Five (Britain, Russia, Austria, Prussia, and France) and of Eight (also including Spain, Sweden, and Portugal), relegating the other powers to roles as lobbyists for their own interests. As the chief French negotiator, Charles Maurice de Talleyrand-Périgord (1754–1838) had it, ‘Vienna was the Congress that was not a Congress’. The Final Act did, however, lack a provision for the future implementation of the great power principle apart from the fact that the eight great powers were bound to all its provisions and thus were all guarantors of the territorial and legal order of Europe as laid down in the act. This was remedied by the Second Peace of Paris of 20 November 1815. Article 6 of the bilateral treaty of alliance signed between Britain and Austria provided for the convening of conferences between the great powers to discuss matters of common interest and the maintenance of peace in Europe. Through its incorporation in the identical peace treaty, this committed all its signatories.

The basic features of the reorganisation of Europe from Vienna would survive for more than five decades, until the German unification. Whereas Europe was plagued by numerous armed conflicts and wars, the Vienna order proved at the same time sufficiently grounded and flexible to allow the great powers the leeway necessary to prevent these wars from escalating into a new general war. Even the disruption of the balance of power through the defeat of France in the Franco-German War and the ensuing unification of Germany in 1870 did not lead to an end to the endeavours by the great powers to manage the system and to sustain peace. The breakdown of the peace and the total conflagration of 1914–1918 destroyed the credit of one of the pillars of the Viennese settlement, the balance of power. But the other survived. Even more so, the idea that the best guarantee for order and peace was their joint management by the great powers became the backbone of the institutional organisation of collective security in the League of Nations in 1919 and the United Nations Organisation in 1945.

Headline image credit: Congress of Vienna. Public domain via Wikimedia Commons.

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The years 2013 and 2014 mark the tercentenary of the peace settlement that put an end to one of the major and most devastating wars in early-modern European history, the War of the Spanish Succession (1700–1713/1714). The war erupted after the death without issue of the last Habsburg king of Spain, Charles II (1665–1700). Charles’s death triggered a violent conflagration of the European diplomatic system, which the major rulers of Europe had anticipated with dread but had proven incapable of averting.

When the sickly Charles II assumed the throne of Spain as a four-year-old in 1665, the problem of his succession already troubled the mind of many a European prince. The riddle of the future of the vast Spanish Monarchy — which contained among other territories Naples, Milan, the Southern Netherlands, and the colonies in Latin America and Asia — had the potential of disrupting the fabric of Europe and was a question of vital interest to all the powers of Europe. The possibility that the Spanish Monarchy might fall into the hands of another great power led France, Great Britain, and the Dutch Republic to enter into two partition treaties (22 CTS 197 and 22 CTS 471) in the interests of peace.

However, just before his death in November 1700, Charles II frustrated those hopes for lasting peace by making a new testament in which he (1) dictated that the Spanish Monarchy had to remain one and indivisible, (2) appointed Philip of Anjou, grandson of Louis XIV of France, to be his universal successor, and (3) stipulated that if Louis XIV rejected the succession, it would pass to Archduke Charles of Austria. Philip of Anjou’s assumption of the Spanish throne as Philip V (1700–1746) (as well as a series of French provocations) resurrected the grand alliance of Britain, the Dutch Republic, and the Austrian Habsburgs that had fought France in the Nine Years War. By 1702, the War of the Spanish Succession was in full flow and was to continue for more than a decade longer.

After having reached a secret, preliminary agreement with Versailles in late 1711, London forced its reluctant Dutch allies to convene a universal peace conference, which met at Utrecht in early 1712. After more than a year of further negotiations – most of which took place at a bilateral level between and in London and Versailles – on 11 April 1713, the first major peace treaties were signed at Utrecht (most important of all, that between France and Britain, 27 CTS 475). As had been the case at other ‘universal’ peace conferences before, peace was concluded not in one multilateral instrument, but through a series of bilateral peace treaties, some of them supplemented by a treaty of Friendship, Commerce and Navigation. On 13 July 1713, the peace treaties between Spain and Britain (28 CTS 295) as well as between Spain and Savoy (28 CTS 269) followed. Between then and February 1715, some additional treaties were concluded at Utrecht. Meanwhile, Louis XIV also reached peace with the Austrian Habsburgs at Rastatt on 6 March 1714 (29 CTS 1) and with the Holy Roman Empire at Baden on 7 September 1714 (29 CTS 141).

Through the Peace of Utrecht/Rastatt/Baden, the Spanish Monarchy was divided. While Philip V retained Spain and the Spanish colonies, the Italian and Belgian possessions for the most part went to the Austrian Habsburgs. But the crucial piece of the puzzle was the agreement that the French and Spanish monarchies would never be united under one person. Thereto, Philip V had to cede all his rights to the French throne, while the princes in line for the French and Spanish succession after him had to cede their rights to the Spanish throne.

Utrecht’s greatest claim to fame in the history of international law is the textual inclusion of the principle of the balance of power in the text of some peace treaties. Article 2 of the Hispano-British Peace of 13 July 1713 (28 CTS 295) literally stipulated that peace in Europe could only be sustained if the balance of power were preserved. Therefore, the union of the crowns of France and Spain could never be condoned and had to be excluded for the future. The article incorporated the different charters of cession of Philip V and the French princes, as well as their acceptance by Louis XIV. The article was based on similar clauses in the treaties of 11 April 1713, which did, however, lack a direct reference to the balance in the body of the article. But they also incorporated the same charters, all of which held such a reference.

It has been said by international lawyers that the introduction of the balance of power in the Utrecht Peace Treaties promoted it into a foundational principle of the positive law of nations. Others have pointed at the scarcity of references to balance of power in later treaties of the 18th century.

It is indeed remarkable that direct references to the balance of power in 18th-century treaties remain relatively rare and in almost all cases relate to matters of dynastic succession. The concrete legal implications of adopting the balance of power as a principle of the law of nations may indeed have been restricted to superseding the normal order of dynastic succession in a few cases but in the Europe of the 18th century this was a change of the greatest order. Since the rise of the dynastic ‘states’ in the late 15th and 16th centuries, claims to dynastic legitimacy to rule over certain territories formed the underlying fabric to the political and legal order of Europe. These were based on an amalgamation of feudal, canon and imperial law, historic rights, dynastic inheritance, conquest, and cession by treaty. Much of these lay embodied in the rules of succession that held together most states – which were in fact personal unions of different realms – and were constitutive and constitutional to that state. The supersession of these rules was nothing less, as Dhondt has convincingly argued (Frederik Dhondt, ‘From Contract to Treaty. The Legal Transformation of the Spanish Succession 1659–1713’, Journal of the History of International Law, 13 (2011) 347–75), than the transformation from a legal order based on legitimacy and at times ‘universal monarchy’ to a horizontal order based on treaties and agreement.

This new order assumed recognition of common responsibility for the ‘security and tranquillity of Europe’ – a much repeated catchphrase in late-17th and 18th-century treaties – and a special role of the great powers. Between 1713 and 1740, France and Britain would assume this responsibility by forming an objective alliance to uphold the Utrecht compromise. It is here that lurk the older roots of the modern system of collective security as a trust of the great powers.

Headline image credit: Allegory of the Consequences of the Peace of Utrecht by Paolo de Matteis. Public domain via Wikimedia Commons

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In the Preface to volume 1 of The Consolidated Treaty Series, Clive Parry explained that his collection purported to make the historical treaties antedating the League of Nations Treaty Series available to the modern reader. By this, the date ad quem, 1919, of his work was made self-explanatory. To justify his choice of the date post quem, 1648, he succinctly stated that this was ‘classically regarded as the date of the foundation of the modern system of States’. To Parry, as to many of his predecessors, 1648 was the natural point of departure for modern treaties.

It is indeed a commonplace among students of international relations and law to indicate 1648, the year of the Peace Treaties of Westphalia, as the very birth year of the modern states system of Europe, to the point that ‘Westphalian’ has become a buzzword for the system itself. The underlying claim is that the treaties inaugurated or even created a new international order based on the sovereign state. It is held that the treaties which put an end to the Thirty Years War (1618–1648) terminated the last great religious war in Europe and sounded the death knell for the universal authority of the pope and the emperor. Thus the princes and republics of Europe achieved their full sovereignty and a new international political and legal order which was premised on the principles of state sovereignty and religious neutrality emerged. As the modern state system was one in which, absent any supranational authority, states were left to their own devices to organise and regulate their mutual relations, horizontal agreements through treaty played a central role in the articulation of international order and treaties became its primary source.

Over the last two decades, the communis opinio among scholars has fallen under attack. A number of scholars have stated that the new order which Westphalia inaugurated had little to do with that the sovereign state system, which only emerged in the 19th century. According to those scholars, the idea of Westphalia is a case of ahistorical myth-making to provide the state system with a clear starting point. But the criticism can even reach further, to the outright negation that Westphalia created anything like a new order at all.

Indeed, any student of international relations or law who is familiar with the literature from international relations and law and who turns to the text of the treaties of Münster [1 CTS 271] and Osnabrück [1 CTS 119], 24 October 1648 – the two instruments which are commonly referred to as Westphalia – is in for a surprise. He or she will not find any mention of state sovereignty or religious neutrality as principles of international organisation in the texts, nor in the surrounding diplomatic documents. Neither will he or she find that the Westphalian Peace Treaties were universal peace treaties, to which most of the powers of Europe supposedly acceded; nor will he or she be able to pinpoint a reference to the balance of power, as so many scholars have claimed.

Westphalia is indeed a myth, and one which has particularly little basis in historical reality as far as the Peace of Westphalia is concerned. In truth, there is very little that is ‘Westphalian’ about Westphalia. Much of the confusion comes from the hybrid character of the two peace instruments, which has often been overlooked or misunderstood. The Peace Treaties of Münster and Osnabrück are of a dual nature. On the one hand, they are bilateral international peace treaties, that of Münster between the Holy Roman Empire and France, that of Osnabrück between the Holy Roman Empire and Sweden. On the other hand, they constitute an internal peace agreement between the emperor and the hundreds of Reichsstände, the constitutive parts of the Holy Roman Empire, which spelled out a new constitutional and religious settlement for the Empire. The clauses into which later scholars have read references to state sovereignty or religious equality all pertain to the latter dimension of the treaties and hold no reflection on the international order of Europe or the law of nations. Modern scholars have considered the involvement of the princes and estates of the Empire in an international peace treaty and the explicit confirmation of their right to make treaties to mark the final rejection of the universal authority of the emperor and the recognition of state sovereignty. In fact, these reminiscences were nothing but the confirmation, or at best adaptation, of old pre-Westphalian rights and went a long way to sustain the medieval, feudal, hierarchical structure that was the Holy Roman Empire. Inasmuch as the treaties had anything to say about sovereignty, it was to reject its ‘Westphalian’ character. Moreover, a comparison of the ‘international’ clauses of the treaties with older treaties teaches that they differed in no way from traditional peace treaties. A historical study of treaty practice should thus move beyond Westphalia and look for the origins of modern treaty-making in the Middle Ages and the 16th century. With time, Oxford Historical Treaties will therefore expand beyond the date post quem of Parry’s collection and include pre-Westphalian treaties.

All this does not suffice to dismiss 1648 as insignificant in the long-term history of the political and legal order of Europe. The mid-17th century certainly was a period of transition between political orders and Westphalia is as good an event to symbolise this as any other. The Westphalia Peace Treaties indeed ended the last great religious war in Western Europe. At the same time, they fell within the middle of a period of civil unrest and war in many European countries (1640–1668), which in the case of some of the major powers ended with the victory of the forces of centralisation over local and regional autonomy. Westphalia, together with some other events, marked the end of a period of turmoil that had started with the Reformation in the second quarter of the 16th century and which had destroyed the medieval order of Europe. After more than a century of unrest and instability which had impeded the formation of a new consent about the international order of Europe, Westphalia helped to create the conditions of internal stability which in the following decades allowed for the articulation of a new common order of Europe. No peace embodies this order more than the Peace Treaties of Utrecht (1713) [e.g., 27 CTS 475 and 28 CTS 295]. This new order thus only materialised after Westphalia rather than at Westphalia. It was the order of the territorial dynastic state – which Bobbitt referred to as the kingly state – and the public law of Europe, which in turn was to be transformed by the French Revolution into that of the nation-state.

Headline image credit: Ratification of the Peace of Münster between Spain and the Dutch Republic in the town hall of Münster, 15 May 1648.. After Gerard ter Borch. Public domain via Wikimedia Commons.

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