What was the eventual result of the thirty years war and the peace of westphalia?

2 The Sources of Power and Plenty

In the context of a European economy recovering from the ravages of the Thirty Years War, vulnerable to epidemics on the one hand and periodic poor harvests on the other, the priority given to agriculture as the foundation for any increase in numbers and welfare requires little elaboration. Overseas trade could make a small country like Holland rich, but both Britain and France were simply too large for trade to have such an impact. When in the early nineteenth century David Ricardo outlined the benefits of international trade he chose as his examples English wool against Portuguese wine—products that both countries had in abundance, of course, but where the increase in welfare consequent upon exchange had little impact upon the central issue of subsistence. And in fact the overseas trade of Britain throughout the eighteenth century facilitated the import of sugar, tea, coffee and spices, luxury goods whose significance in turn became part of a debate on the implications of the production and consumption of such goods. Not until the end of the century did grain imports exceed exports, and this reflected both an increasing population and a shift in the structure of production that formed the origins of the industrial revolution. This new pattern of international trade—in which domestic employment and a rising population increasingly depends on the export of manufactured goods in return for which food and raw materials are imported—first emerged in the nineteenth century.

States with ready access to the sea—Spain, France, Britain, and the Hanseatic cities—had the opportunity to develop overseas trade and fisheries, and an associated literature developed which both urged the extension of trade as the path to wealth, and outlined the practicalities of successful trade and commerce. Where access to the long-distance trade that the oceans offered was limited, arguments that herein lay the route to wealth and power had little force. Moreover, the profitability of merchant ventures seemed to depend upon risk and chance, not upon the wise investment of capital, the proper management of resources, and the judicious use of labor that typified a flourishing agriculture. The rhythm and progress of production in this sphere of economic activity lent itself to the conceptual framework of political oeconomy and could without serious modification be extended to manufacturing activities. German texts of the eighteenth century routinely countered Landwirtschaft to Stadtwirtschaft, the town economy to the country economy, signifying manufacture in the former and agriculture in the latter—even though much early manufacturing actually took place in rural locations. But the contrast set up in this manner simply excludes serious consideration of trade and finance as significant elements in the welfare of the state.

Purposes

Three purposes dominated warfare: religion; dynastic ambition; and imperialism. The Thirty Years' War (1618–48) demonstrated the interplay of the first two. Lutheran–Catholic–Calvinist antagonisms partially explain the bloody nature of the war; Germany proportionately lost more people in the Thirty Years' War than in World War II. Religion, however, did not always determine the allegiances of the participants. Catholic France and Catholic Spain, for example, consistently fought one another for control of Italy and Flanders. Gunpowder weapons also led to a concentration of power as wealthy kings, in command of increasingly larger and more disciplined armies (not to mention artillery able to destroy castles), could compel their restless vassals to accept their rule.

The growth of monarchy meant that warfare often followed the dynastic goals of kings. Louis XIV in France, Peter the Great in Russia, and Frederick the Great in Prussia all used gunpowder-based armies to extend their power inside their kingdoms and enforce their will outside. Often, dynastic wars spilled over into the empires Europeans were in the process of building with those same gunpowder weapons. In the Seven Years' War (1756–63), Britain seized France's Canadian and Indian colonies.

Finally, of course, Europeans translated their gunpowder weapon advantages into overseas empires. In this period, their greatest military advantage over non-Europeans was in areas accessible to their great warships. Navies allowed Europeans to enforce their will along the coastlines of Africa and Asia. On land, guns helped to make the Spanish, French, and British empires in the Americas possible. In Asia, ‘gunpowder empires’ such as the Ottomans and the Mughals also concentrated political power. Japan, after an initial period of experimentation with guns, effectively banned gunpowder weapons in 1587 because of the threat they posed to samurai dominance.

Nationalism

The modern state system emerged in 1648 after the Peace of Westphalia, which ended the Thirty Years War in Europe. Over time, hereditary monarchies built on feudal patronage and defended with mercenary armies gave way to bureaucratic states funded through taxation and guarded by standing armies. The process proceeded in fits and starts and was incredibly violent. In fact, the political scientist Charles Tilly likens the creation of the modern state system to organized crime. As states consolidated, however, they turned to legitimation. And unlike monarchies, which had legitimated their power as a divine right over feudal subjects (often in far flung, disconnected places), states claimed power in representative terms, on behalf of nations. So framed, the state was seen as a container for the nation (in academic terms, the nation-state).

European nations were, however, inventions inasmuch as they did not exist before the state system but were created through them. Benedict Anderson demonstrates that print capitalism played an important role in creating both a common language for emerging nations and geographic scope for them. The production of newspapers and books over particular geographic areas and in vernacular languages, rather than formal Latin (which almost no one spoke), created a community of speakers within a given territory.

In reality, however, very few states in Europe were ever ethnically uniform, even after the consolidation of the state system. European nations always had groups who were deemed outside the definitional boundaries of the nation. Historically, two groups were viewed as outsiders in European states—Jewish and Roma populations.

Because nationalism often rests on othering, it has the potential to spark violence. In particular, when others are viewed as a threat to the nation, states often respond by repressing them. The Holocaust provides an extreme though not isolated example. Adolph Hitler's National Socialist Party rose to power in the 1930s after the economic devastation of World War I by rallying German citizens around the idea that Germany was weak because of “socially inferior” people living in their midst, so-called untermenschen. Jews, Roma, Slavs, and the mentally disabled were labeled untermenschen by the Nazi regime.

Bigotry against Jews was nothing new in 1930s Europe, but under Hitler's Nazi regime the German Parliament legalized discrimination against them. In 1935, for example, Großdeutscher Reichstag passed the so-called Nuremberg Laws, which, among other things, stripped Jews of their German citizenship and criminalized sexual relationships between Germans and Jews. In 1938, Hitler created the Central Agency for Jewish Emigration and tasked Adolf Eichmann with running it. Eichmann's job was to forcibly remove Jews from German territory because they were no longer citizens. The agency first moved Jews into ghettos in Nazi occupied Poland. Later, after Hitler adopted the final solution, Jews were sent to concentration camps where the great majority were killed in gas chambers. Other Jews were killed in mobile killing stations, especially on the Eastern front. Historians estimate that 6 million European Jews and approximately 200,000 Roma were killed by the Nazi regime during World War II.

While individual leaders were responsible for developing the final solution and implementing it, German Nationalism allowed it to happen. At the front end, it provided a rationale for the legal codes that stripped Jews of their German citizenship and opened the way for their deportation to ghettos and concentration camps. German nationalism also abetted (or gave cover) for anti-Semitism. Holocaust scholar Raul Hilberg documents various ways that ordinary Germans, so-called bystanders, benefited from the Holocaust, getting paid to transport Jews to train stations, cataloging their seized property, and in some cases purchasing their homes from the state. It was not just ordinary citizens who declined to speak up. None of Germany's main institutions—the Catholic and Protestant churches, the civil service, labor unions—opposed the Nazi regime either. As Hannah Arendt observed when she covered Eichmann's trial in Israel, “the trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal.”

Holland's Exceptionalism

In 1621, the Republic and Spain resumed their war on a much larger scale than before. Both sides invested heavily in border skirmishes, they meddled in the Thirty Years' War, and they transferred the war overseas. The Dutch attempt to conquer Brazil during the 1630s was a notably expensive failure.

Despite the pressure of rising expenditure in north and south, the bargaining framework between the provinces and the central government over tax transfers hardly changed. In the Spanish Netherlands, the major cities retained control over the raising and spending of taxes levied by them in the name of the Brussels government. Flanders even ceded its hold on the new expedients introduced during the 1540s and returned to the old system of assigning specific sums for individual cities and regions to raise. Sluggish economic growth limited the scope for new or higher taxation. Both Flanders and Brabant stopped deficit spending and prioritized debt redemption over transfers to the central government, which were further reduced by the provinces' insistence that any military spending went to troops stationed within their borders. As a result, Brussels had to fund its war effort mainly with transfers from Spain.

By contrast, the province of Holland set out on an entirely different course. In 1609, its Estates had used the Truce to reorganize the debt by converting short-term bills into redeemable annuities and putting a stop to borrowing, save for a small amount raised to take over Union debt. However, the resumption of the war in 1621 caused the province to start borrowing again on a large scale, initially by issuing redeemable and life annuities. From 1628, new issues consisted entirely of bills, short-term instruments sold by tax receivers across the province and redeemable at short notice by their holders. Because of that liquidity, these bills proved so popular with investors that they gradually evolved into quasi perpetuities, being rolled over time and again. When Holland reduced interest rates on its outstanding debt from 6.25% to 5% in 1640, the Estates set aside only 800 000 guilders to repay investors unwilling to accept the conversion on a total debt of 94 million. Provincial debt subsequently continued to rise to 125.5 million by the time of the Peace of Westphalia in 1648.

These bills enabled Holland to embark on a deliberate policy of deficit spending. From a temporary bridge of gaps between revenues and spending, its borrowing was transformed into a structural public finance feature. This policy stood out among the other northern provinces. Zeeland, for instance, experienced such economic difficulties following the closure of the Scheldt River and the loss of satellite trade from Antwerp that the Estates repeatedly had to renegotiate their contribution to the central war effort, which dropped from 22.5% in 1575 via 14.7% in 1595 to only 9.2% in 1616, the last reduction achieved only after particularly arduous negotiations. As a result, Zeeland could shoulder the burdens of renewed warfare from 1621 with modest borrowing. Its debt rose to 4.3 million guilders in 1648, a fraction of Holland's amount and only 50 guilders per capita, against 164 guilders for its northern neighbor.

Other provinces also strove to pay their contributions from current income as much as possible and to restrict borrowing to bridging temporary gaps between income and spending. Debts remained small overall during this period because outside Holland markets for public securities were slow to develop. None of the provinces could adopt bills like Holland did; local markets for life annuities and redeemable annuities had a finite capacity and capital from Holland does not appear to have crossed borders of its own volition during these years. However, the provinces did enter the Holland market through a back door opened by the Estates General, which floated loans on its own credit to cover the rising provincial contribution arrears. By 1648, the Union's receiver-general in The Hague had raised a total of 12.8 million guilders in bonds toward this end, the interest of 6.25% being charged to the provinces. This allowed the provinces to profit from Holland's greater pool of savings, greater liquidity, and lower interest rates, reducing debt service costs. A string of foreign governments would discover, and exploit, these advantages during the eighteenth century, some of them also initially via the Estates General's intermediation.

The end of the war with Spain also ended the community of interests between the Republic constituents and put pressure on the reigning policy consensus. The land provinces thoroughly disliked being made to accept debt via the Estates General and resented carrying the can for what they regarded as the sea provinces', and especially Holland's, self-interested policies. For its part, Holland wanted to reduce the political risks that a large army under the Orange stadholders might pose, so in 1651, the Estates General decided to further undo the 1579 Union of Utrecht and delegate control over military spending and appointments almost entirely to the provinces. This provincial particularism has often been criticized as the most telling example of the Republic's institutional impotence, but events would soon force the northern provinces to accept yet heavier burdens and start deficit spending on a big scale.

The Nature and Sources of International Law

Understanding the implications of recent developments in international health law, including those for domestic public health policy, requires some appreciation of the nature of international law and the international political system. Since the end of the Thirty Years War in 1648, the global political system has principally involved the interactions of sovereign states. Consequently, the elaboration of international law has focused on the establishment of consensual rules concerning the status of states and their fundamental rights and obligations as well as commitments. International law, therefore, is primarily focused on the interactions of sovereign states and can broadly be defined as the rules that govern the conduct and relations of states.

International law is traditionally understood as consisting of two core realms: Public international law and private international law. While public international law is primarily concerned with the relations of states, private international law focuses on the law of private transactions of individuals and corporations. The traditional distinction between public and private international law persists even though it is not fully accurate. For example, much of private international law concerns the transactions of public entities. In addition, while states are the primary subjects of public international law, they are not the only subjects. International organizations and, through the development of international human rights law, individuals, as discussed above, are now considered subjects of public international law.

In international law, the sources of legal rules are very different than in most domestic legal systems because the global political system of sovereign states differs fundamentally from domestic political systems. While there are important differences in the sources of law among countries, domestic law generally comes from national constitutions, municipal statutes, parliamentary or executive regulations, and decisions of municipal courts. In contrast to domestic political systems, there is generally no supranational authority within the international system to develop and enforce law against sovereign states. In the absence of a supranational authority, states establish the rules of international law. Article 38(1) of the Statute of the International Court of Justice is generally regarded as an authoritative list of the sources of international law (Table 2).

Table 2. Statute of the International Court of Justice

Although there is a wide and complex array of international legal sources, most international law today, including international public health law, can be found in treaties. The word treaty is a generic term that encompasses all written instruments concluded between states by which states establish obligations by and among themselves. Treaties function essentially as contracts between states whereby states make binding written rules to govern their own conduct and the conduct of their individual and corporate nationals. When states become parties to treaties, they explicitly agree to limit their sovereign freedom of action in some respect to achieve mutually agreed-upon goals. Generally, treaties are only binding upon states that give their express written consent.

Treaties are also subject to a significant corpus of international law: The 1969 Vienna Convention on the Law of Treaties (the Vienna Convention). The Vienna Convention, the so-called law of treaties, provides general rules of treaty implementation and interpretation. The Vienna Convention confirms the generic use of the term treaty by defining a treaty as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.’ The terms treaty, convention, protocol, and pact are largely used interchangeably in international legal parlance. Article 19 of the Vienna Convention sets forth the basic legal principle concerning the observance of treaties, pacta sunt servanda: ‘Every treaty in force is binding upon the parties to it and must be performed in good faith.’

A second important source of international law is customary international law. Analogous to domestic legal concepts such as usage of the trade and course of dealing, the idea behind customary international law is that widespread international practice undertaken out of a sense of legal duty creates reasonable expectations of future observance and constitutes implicit consent to the creation of legal rules. The determination of whether or not a particular practice constitutes customary international law is a complex analysis that is more like an art than a science. But, generally, the determination requires near uniform state practice undertaken because of a sense of legal obligation. With some important exceptions, once a rule is recognized as part of customary international law, it is generally considered binding upon all states. For example, the Vienna Convention is accepted as declaratory of customary international law and binding for all states, including those that have not formally ratified it. Like treaty law, customary international law is said to emanate from the consent of states. States party to a treaty explicitly consent to be bound by codified rules, whereas with customary international law states implicitly agree to be bound to particular rules through consistent state practice.

In addition to binding international law, states produce a wide variety of nonbinding international legal instruments that can have an important impact on state behavior. Such instruments include resolutions, declarations, codes of conduct, guidelines or standards. However named, general declaratory resolutions are, for the most part, intended to be nonbinding instruments expressing the common interest of many states in specific areas of international cooperation. Of course, nothing in such resolutions prohibits states from incorporating the terms of the instruments into national law. One well-known example of a nonbinding international code in the public health field is the WHO Code of Marketing Breastmilk Substitutes. Although generally nonbinding, such instruments are not without significance. Like treaties, these nonbinding instruments can be mechanisms for advancing international consensus on rules and for promoting consistent state action. For example, the WTO Doha Declaration on Trade and Public Health, discussed below, is widely considered to have advanced global understanding and, perhaps, action on trade and health matters, particularly in relation to access to essential medicines, even though the legal significance of the declaratory instrument is unclear.

At times such intergovernmental resolutions have been highly persuasive and the conduct of states has tended to follow the principles embodied in these resolutions. The effectiveness of some nonbinding intergovernmental resolutions in promoting international cooperation has led some commentators to refer to them as soft-law, although the term is highly controversial. Such instruments are often carefully negotiated and, at times, drafted with the intention to influence state practice. Soft-law instruments, at times, have also paved the way for the evolution of treaty law by generating an on-going diplomatic forum. It is important to recognize that not all resolutions lead to the development of formalized obligations or are a significant factor in state practice. However, intergovernmental resolutions, particularly resolutions of the UN General Assembly that are supported by influential states often have a political significance that can stimulate national behavior and lead to the eventual development of binding international law.

Political Cosmopolitanism

Political cosmopolitanism applies the international outlooks just described to the context of international relations and global politics. There is a fundamental contradiction among the moral concepts that apply to international relations. The treaty of Westphalia of 1648 brought the Thirty Years’ War in Europe to an end by defining the rights of rulers over states and limiting their rights in relation to other states. It established the notion of a nation-state as a political entity with the right to rule itself in whatever way it saw fit and to defend its territorial and national integrity against other, competing states. European powers spread this concept to the rest of the world through colonization and conquest, and it has become firmly entrenched in international law and in the charter of the United Nations (UN) as the concept of the sovereignty of states. For many political theorists, especially those of a realist persuasion, this notion of state sovereignty is the bedrock of international law and licenses any diplomatic, military, and even commercial activities that extend the state’s influence and power and enhance its national interest. In this outlook, readiness for war becomes an inescapable stance for nation-states that wish to preserve their identity and capacity for self-determination in a hostile world. Moreover, national governments are justified in rejecting as violations of their sovereignty any interference in their internal affairs on the part of other nation-states or other outside agencies such as non-governmental organizations (NGOs).

This assertion of sovereignty, however, is called into question by the Universal Declaration of Human Rights (UDHR) propagated by the UN in 1948. Not only does this declaration list a significant number of rights that it says are held by all human beings just by virtue of their being human beings but also it gives to all nations of the world the responsibility to defend and uphold those rights. This suggests, and subsequent declarations by the UN confirm, that states have a responsibility to defend and honor the human rights of not only their own citizens but also the citizens of other states in the event that the governments of those states do not themselves defend those rights. If a tyrant oppresses his own people or a minority group within his country, the defense of universal human rights can license what has come to be known as humanitarian intervention. Such interventions may range from the provision of food aid for starving populations to military invasion in order to remove a government that violates the rights of its people. In this way, the rights of state sovereignty come into conflict with the universal human rights of individuals.

The central premise of political cosmopolitanism is that in this conflict, preference should be given to the rights of individuals rather than the rights of states. We return to the practical implications of this position when we discuss ethical cosmopolitanism.

Closely linked to this stance is the realization that many international wars (as opposed to civil wars, rebellions, and wars of national liberation) are based on the need to project the power of the nation-state onto the world in pursuit of its national interest and sovereignty. Accordingly, cosmopolitans argue that the ideal of lasting international peace requires a reduction of the rights associated with sovereignty and of the autonomy of states.

The specific proposals that flow from this stance will vary. At one end of the range of possibilities will be advocacy of world government. Just as Thomas Hobbes argued that a civil society could only emerge from a violent state of nature if a Leviathan with absolute power ruled such a society, so it is argued that global peace and the preservation of human rights can only be achieved if the analogous state of nature that exists in a world occupied by mutually aggressive nation-states were transformed into a global society bound by international laws that could be imposed and policed by a supreme power. However, even Immanuel Kant, who was possibly the first modern philosopher to advocate this idea, quickly came to realize that the potential for global tyranny in such a proposal was too great to be acceptable. Without any countervailing force to contain the power of such a global authority, the risk of oppression and exploitation imposed by a political elite on a global scale is simply too great for any liberal-minded political theorist to accept. Of course, if you consider that you are possessed of all the requisite knowledge and insight to rule the world justly, you will not adopt such an apprehensive position. Advocates of Platonic philosopher-kings, the universal rule of Christendom, a worldwide Caliphate, or the international dictatorship of the proletariat feel no such inhibition.

Another argument against global government points to the practical and instrumental necessity of states. It is argued that there need to be territorially based legal jurisdictions with the prerogatives and duties of states in order to secure the rights of citizens and just distributions of social goods, and that these duties could not practicably be performed by a global government. Just as we need municipal authorities to clean the city drains and dispose of garbage, and provincial governments to administer schools and hospitals, so we need national government to police laws (many of which will be based on traditions and norms that are not applicable universally), gather taxes and distribute social goods in light of local conceptions of the good life, regulate and defend the property rights of local corporations, and secure human rights in forms that are acknowledged in the relevant regions. Although many of the norms that governments ought to apply have universal validity, their articulation and application will be locally colored. In addition, claimants of human rights need local authorities to appeal to in the event that their rights are violated. Moreover, it is argued that no matter what internationally binding laws and instruments are put in place that might limit state sovereignty or even establish a global government, it is only the governments of nation-states that are empowered to enter into such agreements.

For his part, Kant advocated a worldwide federation of sovereign states in which states would bind themselves to a number of basic rules of international cooperation, including rules for the proper conduct of war, in order to secure lasting peace between them. Central to his prescriptions was the idea that democratic states are more likely to live at peace with each other than absolute monarchies. Peoples capable of democratic self-determination would be less likely to go to war with other peoples because they would know that they themselves would suffer the costs of doing so. Whereas monarchs can usually protect themselves from these costs, ordinary people cannot.

This link between international cooperation and forms of government has been elaborated by John Rawls in his book, The Law of Peoples, in which he argues that if the representatives of peoples were to gather together to design an international system of cooperation, they would endorse a set of principles that would embrace both sovereignty and any limitations upon such sovereignty as would guarantee lasting peace between them and the protection of human rights. Rawls did not think it necessary that all peoples entering into such a compact would need to be governed democratically. Even if their governments were despotic, it would be enough to secure peace and cooperation if their representatives were reasonable in their approach to the imagined global contract. Many cosmopolitan thinkers have criticized Rawls’s account on the ground that it is still statist in form. It gives too much credence to the alleged values of national sovereignty and to the prerogatives of ruling elites and thereby gives insufficient weight to the full range of human rights expounded in the UDHR. However, what is valuable about Rawls’s contribution to the debate is his recognition of global values pluralism. Not only does the world contain governments of many forms – many of them despotic and illiberal – but also the world contains many political philosophies, including theocratic, autocratic, and liberal. Some illiberal governments may yet be decent in that they provide for a minimal set of basic human rights for their citizens. A peaceful world must be one in which there is tolerance and coexistence despite these differences. Kant’s federation of democratic states would not cover much of the earth’s surface. A genuine world community cannot be based on the assumption or global imposition of Western liberal values. Political cosmopolitanism should not be seen as liberalism become imperialistic.

Whatever the quandaries that cosmopolitanism poses for political theory, however, the fact is that the world community has evolved in such a way that state sovereignty is, in fact, being reduced. In the context of globalization, there is an ever greater need for international law and other binding forms of cooperation. Even if it is merely to protect property rights in cross-border commercial transactions, all countries have to respect international legal jurisdictions. Newly emerging global needs such as those relating to the protection of the environment, the sustainability of ocean fisheries, standards of interconnectivity in communications and technology, along with the regulation of international financial arrangements have led to an acceptance of global institutions such as the UN, the World Bank, the General Agreement on Tariffs and Trade (GATT), agreements on the control of nuclear arms, and so forth, which all serve to reduce the scope of state sovereignty.

If advocacy of global government is one end of the spectrum of possibilities within political cosmopolitanism, then advocacy of global democracy is the other. What is envisaged here is that delegates to such international institutions as mentioned previously should not be appointed by the political elites that rule the countries from which they come but, rather, should be elected by the peoples that they represent. If bodies such as the UN could include a people’s chamber to which delegates are directly elected by the world’s peoples, a new level of responsiveness to democratically formed global political agendas could be shown by these bodies. The European Parliament is often offered as an example of what might be possible along these lines. Whether this proposal is feasible in the context of current global politics is not a question that political philosophers of a more utopian bent allow themselves to be deflected by.

Decentralization of power

Immanuel Kant argued that wars were caused by struggles for power among monarchs and hence would cease once European nations became republics. Curiously, at the time this essay was published the most severe and extensive series of wars since the Thirty Years’ War was launched in Europe with republican France as a principal belligerent. The fact that dozens of wars in the modern era have taken place between popular democracies around the world has soundly discredited this hypothesis. In fact, democratic masses are often among the most bellicose of subjects, demanding war for ends such as revenge, defense, obtaining resources, supporting ideologies, or ‘to end all wars’.

Decentralization of Power

Immanuel Kant (1903) argued that wars were caused by struggles for power among monarchs and hence would cease once European nations became republics. Curiously, at the time this essay was published the most severe and extensive series of wars since the Thirty Years' War was launched in Europe with republican France as a principal belligerent. The fact that dozens of wars in the modern era have taken place between popular democracies around the world has soundly discredited this hypothesis. In fact, democratic masses are often among the most bellicose of subjects, demanding war for ends such as revenge, defense, obtaining resources, supporting ideologies, or “to end all wars”.

Relationship to the State

The concept of individual or natural rights is historically and pragmatically related – both positively and negatively – to the emergence of the modern nation-states from feudalism between the thirteenth and seventeenth centuries. In 1648, the Peace of Westphalia, which ended the murderous Thirty Years' War in Europe between Catholic and Protestant states, constituted the first formal international recognition of the nation-state's autonomy from religious authority. It also established the first official tolerance of religious pluralism, a crucial move in the rise of civil liberty and human rights. Yet the Westphalian model of international law left no room for the international enforcement of individual rights, as its main objective was the recognition of the principle of territorial sovereignty (domestic jurisdiction) of strong states.

Nonetheless, the rise of strong nation-states made individual rights more important than they had been in the past, spawning new theories about the obligations of states to citizens. Indeed, another paradox (which also involves the endemic jurisprudential debate between legal positivism and forms of legal analysis based on natural law) concerns the relationship between rights claims and their enforcement or recognition (see Natural Law). Though many theorists persuasively contend that rights claims exist independently of legal protection, rights claims (positive and negative) have to be recognized and enforced by those in power in order to be effective. The Nuremberg trials present a classic example of this fact. (Some have called the verdicts ‘victors justice’.) As James Madison wrote, following the logic of Hobbes and Locke, liberal freedom can exist only when the state is strong enough to protect its citizens, but also limited enough so as not to oppress them. Writing in the aftermath of World War II, Hannah Arendt (1951) chillingly portrayed how vulnerable stateless people are to abuse of their humanity. Legal theorist Stephen Holmes (1995) puts the matter succinctly: “Weak-state pluralism is a recipe not for liberalism, but for a proliferation of rival and coercive mafias, clans, gangs, and cults … Liberal government … is meant to solve the problem of anarchy and the problem of tyranny within a single and coherent system of rules” (pp. 270–271).

3 The Changing Nature of War

Contemporary warfare itself has changed dramatically over time and circumstance, giving lie to any notion that war is a ‘natural’ social phenomenon or a fixed product of overarching political organization (van Creveld 1991). The era of the modern state provides a good illustration (Holsti 1996). In Europe, the end of the Thirty Years War (from 1618 to 1648) coincided with the beginning of the modern state (marked by the Treaty of Westphalia). The Thirty Years War depopulated a large part of Central Europe. It was known for its sheer brutality: writers of the time speak of the wanton killing, torture, plunder, and destruction of anyone and anything who found themselves in the path of the aggressors. The levels of violence are attributed to the enduring impact of religious wars and the Inquisition, to the transformations wrought by urbanization and early industrialization, and to the upheavals marking the shift from kingly rule to the modern state.

Over the following two centuries the nihilism characterizing the Thirty Years War gave way to what has been called the gentlemen's war of the Enlightenment period. Formal warfare during this era often, though certainly not always, followed strict rules of conduct and engagement: soldiers fought soldiers in hand to hand combat on battlegrounds apart from human habitation. This was not a new era of war for humankind: Buddhist and Hindu scriptures 2,000 years BCE outlined similar ‘gentlemen's wars’ in Asia.

While military texts tend to focus on these formal military engagements between two contending armies, another form of warfare developed during this period: colonial repression of conquered peoples. In many ways these actions presaged the dirty war of contemporary times—wars that brutally targeted unarmed people in attempts to instill political acquiescence.

The colonial encounter gave rise to another distinct form of war: the guerrilla war, the mainstay of wars for independence worldwide. Guerrilla warfare was developed by nonstate actors challenging financially and technologically superior state forces. Classical guerrilla philosophy—institutionalized in the mid-twentieth century by military strategists such as Mao Zedong, Che Guevara, and Ho Chi Minh—postulates that guerrilla forces, by definition, have the support of the broad population, and it is this that gives them indefatigable strength, crucial resources, and moral political superiority. While in many cases this has proven true, it is by no means always so. Guerrilla groups such as the Khmer Rouge in Cambodia, Renamo in Mozambique, and the Contras in Nicaragua demonstrated that nonstate forces can also use repressive tactics in an effort to control populations.