I. Introduction

Peace was finally achieved on the 24 [th] of October 1648 after thirty years of war and five years of negotiations between the emperor and the estates of the empire within the empire and between the emperor, the empire and the Swedish queen, as well as the French king. It was no victory or defeat peace, but rather the conclusion of peace by means of two peace treaties achieved through a process of mutual agreement in which all partners sought to balance their interests by regulating the points of controversy, although the stronger side in the war was better able to prevail upon its wishes and the weaker side had to give way more often.

Although the treaties were negotiated separately in Münster and Osnabrück, both were signed in Münster. [1] Both treaties were closely connected in content and in function and only together did they create peace. The contracting parties of the Treaty of Osnabrück (Instrumentum Pacis Osnabrugense - IPO) according to the Preamble and Art. I were the Emperor Ferdinand III and the empire on the one hand and Queen Christina of Sweden and the Kingdom of Sweden on the other. In the Treaty of Münster (Instrumentum Pacis Monasteriense - IPM), also according to the Preamble and § 1, the contracting parties were again the emperor and the empire as well as King Louis XIV of France.

The Peace Treaty of Osnabrück included all other kings at that time, the Italian princes and republics, the Netherlands, the Swiss and the lands of the Grey Leagues, the prince of Transylvania as well as the grand prince of Moscow in Art. XVII §§ 10, 11. Only the Pope and the Sultan were missing. As these powers had not participated in the war - or only in the initial phases or only indirectly - there was no such conflict to be concluded in peace. Neither was the legal position of these powers, with the exception of the Swiss, affected by the regulatory content of the treaty. Nevertheless, they were also to benefit from the general effects of the peace. According to one author of the eighteenth century, "the whole of Europe was interested in this work of peace." [3]

Both the treaties therefore established a concrete peace between the partners and their allies, i.e. the warring parties, and regulated the points of conflict between them as a prerequisite for this peace. They did not by any means set up a general legal peace order, neither did they regulate all problems and conflicts in Europe. They did not form a Basic Law for Europe. However, both treaties have from the very beginning to the present day been assigned a general meaning for the European order of the following century and a key position in the development of modern international law.

II. The Peace Regulations

1. Legal content: The legal content of both treaties have four sections: the establishment of a general peace between the warring parties and their allies; the regulation of internal conflicts within the empire between the emperor and the estates of the empire and between the estates of the empire themselves in secular as well as religious constitutional questions; the regulations of mainly territorial questions, but also other conflicts between the emperor and the empire on the one hand and the two crowns on the other; the general final clauses, in particular regarding ratification, guarantee and the inclusion of further European powers in the treaties. All four sections are inextricably linked together. The creation of a legally agreed upon peace presupposes the consensual regulation of the internal and external problems of the empire, and it is only for the sake of peace that the parties are willing to make the relevant regulations. Agreed upon peace can only become effective if the problems and conflicts which the war caused and established are solved. As both treaties form a uniform system of peace, their regulations literally correspond with regard to the general peace, the internal questions of the empire and the final clauses. However, the provisions regarding the respective disputes with the crowns are made on an individual basis, in the IPO for Sweden and in the IPM for France.

2. General Peace: According to Art. I IPO / § 1 IPM the peace established between the partners should be a Christian, general and permanent one, forming the foundation of a true and earnest friendship between them. Firstly, the law ends the war and thus the right to carry out actions of war against the other side and, above all, against the population. The prisoners of both sides are to be released. As financial compensatory regulations still needed to be made, the foreign troops did not yet withdraw. They were, however, drawn together in particular areas and had to behave calmly and quietly. It was not until the Nuremberg peace execution of 1650, which can partly be seen as a treaty implementing the treaties of 1648, that troop withdrawal achieved.

Furthermore, an amnesty is agreed upon in Art. II IPO / § 2 IPM, an everlasting forgetting, forgiving and pardoning of the injustice, which is to cover all "offences, acts of violence hostilities, damage and expenses caused with words, writings or deeds before the war and during the war". [4]

The peace is above all linked to true and sincere friendship, in which " each part is to promote the others benefit, honour and advantage" [5], so that a "trusting neighbourhood and the secured maintenance of the efforts for peace and friendship can be strengthened and blossom anew" [6]. The treaties do not elaborate upon this in detail. In addition, however, the provisions of Art. IX IPO / §§ 62 ff. IPM are relevant here, in which the old trade privileges are re-established, the new taxes introduced during the war are suspended and the free movement of subjects is reinstated as it was before the war.

3. A Double Peace: Just as the war had two sides to it, so did the general peace. The war began as an internal war within the empire between the emperor and those estates of the empire allied to him on the one hand and the other estates of the empire on the other. Then foreign powers had interfered, 1625-1629 the king of Denmark, 1630 and 1635 the kings of Sweden and France. Thus it became an inter-state war, which the emperor with his allies, among them the king of Spain, led against those monarchs who were allied with those estates of the empire hostile to the emperor in the internal war within the empire. The internal empire war and the international war were inextricably interwoven. Thus, the peace treaties established an international peace between the contracting parties and their allies as an international legal treaty; while at the same time they re-established the so-called peace of the land ("Landfrieden") as an internal treaty. Thus, in accordance with Art. XVII § 1 IPO / § 111 IPM, they were signed and ratified by the partners, emperor, queen and king, as well as a deputation of the estates of the empire according to international law as well as being accepted through the "Jüngsten Reichsabschied" (the latest imperial bill to be passed) of the Imperial Diet in 1654 as the Basic Law of the empire, in accordance with Art. XVII § 2 IPO / § 112 IPM. The treaties are permeated with European international law and the constitutional law of the empire, international and internal peace. One is a prerequisite for the other and they form an indestructible unity. In this unity they form a central element of both the political and legal order of Europe. Through this linkage the empire's constitutional law is anchored in international law. It cannot be changed without an act of international law. Thus, the emperor and the empire at the Imperial Diet were not completely free and sovereign in the organisation of the internal affairs of the empire. The complete European legal order for its part received the constitution of the empire as a central constituent component. This is, to a certain extent, the invisible foundation upon which this order and thus the peace rest. This close linkage and permeation of the empire's constitutional order and the international law order were always acknowledged and reaffirmed in later treaties between the partners anew. It appeared necessary, as was said "pour le repos de la Chrétienté". [7]

4. The Empire's Internal Peace: Since the end of the fifteenth century an abundance of problems had become interlocked within the empire: the relations between the emperor and the estates of the empire in the area of legislation, jurisdiction, the conduct of war and the making of peace; the rights of the Kurfürsten, Fürsten and other territorial lords within their own territory and externally with other powers; overcoming the religious split at empire level and in the territories of the Catholics, Lutherans and then also the Calvinists. They were clearly not able to solve these problems peacefully and war erupted. In addition there had also been constant shifts in the territorial rule of the empire since 1618. This is how the demand for restitution came into existence. Some estates of the empire made demands on one or the other dominion for various reasons. The solving of these problems was further complicated because both foreign crowns took interest in the empire's constitution and added their own territorial claims.

The internal constitutional conflicts were, to a great extent, solved on the basis of past constitutional law, but nevertheless by deciding the contentious questions in favour of the estates of the empire and to the detriment of the emperor. The estates received in Art. VIII IPO participatory rights at empire level, sovereignty within their territory and externally the right to enter into alliances. But they were still subject to the imperial legislation, jurisdiction and enforcement powers. [8] The denominations received parity at empire level, including the Calvinists (Art. V IPO). The estates of the empire retained the ius reformandi, which was limited to the determination of religious assets on the 1 [st] of January 1624. [9 ]The territorial shifts during the war were largely, but by no means completely, reversed by the so-called restitutions according to Art. IV IPO.

Constitutional institutions and orders were determined by the treaties to guarantee the peaceful legal regulation of possible new conflicts for the future, in order to ensure a peaceful co-existence and thus preserving the peace of the land. This succeeded for almost one century.

Thus, law ever increasingly replaced religion, convention, emperor, hierarchy and politics in providing the guarantee of the unity and peace of the empire. This special function of the law belonged likewise to the custom of the constitution of the empire, it's unity and it's peace. But now law became dominant as the other factors lost more and more of their unifying character and effect.

5. Swedish Peace: Sweden was concerned about supporting its allied estates of the empire against the emperor and about securing the protestant denomination within the empire, as well as being interested in the extension of its position in northern and eastern Europe as a major power, which should then take effect for the whole of Europe. Additionally, it laid claim to satisfaction for its services of war within the empire, as in its view the intervention had taken place in the interests of the empire, especially with regard to the protection of the protestant estates against the imperial-catholic supremacy and suppression.

Thus the queen emphatically influenced the formation of the empire's constitution in favour of the estates of the empire and the protestants. She also attained the enfeoffment of many territories around the Baltic Sea and the North Sea [10] for herself and her descendants in Art. X IPO. These territories were not separated from the empire and the queen herself became an estate of the empire in a feudal capacity, which guaranteed her direct influence in the Imperial Diet. This also meant, however, that she was also legally bound to the constitution and law of the empire in internal conflicts.

It thus became a legal form customary in the empire to apply and validate feudal law in order to overcome international conflicts with a foreign power, while at the same time retaining undiminished the territory of the empire within it's constitution.

6. French Peace: The conflicts with the French crown were of an older and more fundamental nature. Since the end of the fifteenth century the conflict over supremacy between the House of Habsburg and the French rulers had moulded the politics of the whole of Europe. The conflict was played out throughout Europe and abroad and it did not by any means end in 1648. It was not until the peace agreements of Utrecht, Baden and Rastatt in 1713/14 at the close of the Spanish was of succession that this conflict came to an end, without either party having attained or retained supremacy in Europe at this time. The principle of equilibrium between the powers in Europe was elevated to a fundamental foundation of the European order.

In 1648 the French king was more powerful. [11] He succeeded in strengthening the estates of the empire against the emperor. He also achieved considerable territorial gains in Lorraine and Alsace The king did not acquire these areas as a vassal, but with, at least in parts, full sovereignty. Therefore they left the federation of the empire and to achieve this even the prohibition of the "Wahlkapitulation" of the emperor to dispose of imperial goods and imperial rights was lifted. In contrast to the Swedish acquisitions, modern international law was used here to transfer sovereignty, not the old institutions of the law of the empire.

As the French king only made peace with the emperor and the empire in 1648, but not with the Spanish king, the king succeeded in ensuring in § 3 IPM that the emperor and the empire would remain neutral in the continuing war. The Burgundian Circle ("burgundische Kreis"), a part of the empire under Spanish rule, was even provisionally excluded from the peace agreement and its protection by the empire was removed.

7. The Final Clauses: On the one hand, the usual provisions on signing and ratifying were laid down in the final clauses in Art. XVII IPO / §§ 111 ff. IPM. Those involved were the emperor, king and queen, as well as a deputation from 15 chosen estates of the empire. On the other hand, new kinds of regulations were also made. Priority was granted to the treaties with regard to older regulations, religious and legal secular regulations alike. The guarantee of the treaties was assigned to all contracting parties. Both these regulations expressed the change in conditions, relations and structures, yet, at the same time, strengthened and consolidated these changes.

8. Result: After thirty years of devastating war in which the most important powers in Europe were entangled, it was undoubtedly a great achievement to regulate the conflicts of that time through a treaty, that means through compromise and agreement, creating peace within the empire and around the empire. Nevertheless, the treaties of Münster and Osnabrück attained their epochal significance because for the first time they had succeeded by means of modern international law to make peace between equal powers within Europe without creating a summit hierarchy, thus laying the first foundations of the international law of treaties in the European order for the next 150 years.



III. The Order of Europe

1. Initial Position: The political world of seventeenth century Europe was shaped by a multiplicity of extremely different powers classified according to size, power, reputation, legal status and constitution, religious alignment and economic strength.

The external legal relations between the powers were formed on the basis of the principle of "side by side" order and mutual independence. The medieval principles of a hierarchical ordo with emperor and Pope at its summit had been controversial since the fourteenth century. They finally lost their acceptance in the sixteenth and seventeenth century with the strengthening of the kings, the growing weakness of the empire and the religious schism. Sovereignty, as a global and complete external and internal independence and self-determination in relation to every other power became the fundamental principle of the European order. Thus, a horizontally conceived order of powers developed, in which all powers, including emperor and pope, were legally placed side by side. To a certain extent, the treaties of Münster and Osnabrück provided the confirming conclusion to this development, being thus at the same time the beginning of a new era.

Nevertheless, full sovereignty was not a necessary requirement for participation in political and legal events, wars, alliances and peace agreements in Europe and abroad. A high degree of independence or self-sufficiency with regard to foreign policy, as well as the ability to enter into and fulfil military and international legal obligations on the basis of territorial rule, was regarded as adequate. To the extent that these capabilities were attributed in law and in fact to non-sovereign territorial powers, the latter were then also capable of being subjects of international law. This applied in particular to the estates of the empire due to their constitutional right, guaranteed by international law, to form alliances, conduct war and conclude peace agreements. Other not fully sovereign powers also belonged to this group, such as the prince of Transylvania and the Italian city republics etc.

2. The Meaning of the Law: Heterogeneity, mutual sovereignty or independence and the side by side order of the powers in Europe did not lead to the giving up of the conception and consciousness of European powers. The common foundation of the Christian religion, in spite of the religious schism, history and origin, culture, law and social connections formed the basis of this feeling of solidarity and unity. The use of phrases such as respublica christiana, chrétienté, orbis christianum and "Christenheit" gave expression to this feeling in the treaties and other sources of that time. An organisation was missing in this side by side co-existence, and in addition to this the conventional law, secular as well as canonical law, natural as well as positive law, was uncertain, insecure and controversial. It nevertheless formed the basis, requiring adjustments and developments, of the new political structure.

Thus, European international law was developed from older approaches. The two treaties of Münster and Osnabrück created the first great probationary test. By succeeding in creating peace on a legal basis over and above the differences of the involved powers, especially the religious differences, they had a fundamental effect on the European order and its future.



IV. The European International Law

1. A Modern Law: European international law is based on the ius gentium passed down from the (classical) antiquity. It was first and foremost the law which is valid for and common to all nations. [12 ]As a form of the general law of mankind it also covered the law between the powers. This part rendered itself more and more to an independent area of law, both theoretically and practically, since the sixteenth century. International law in the modern sense of a specific body of law between monarchs, nations and states emerged. Therefore, it was called ius inter gentes by some authors. [13]

There are various reasons for this development. The modifications in the structure of relations between the European powers has already been mentioned. In addition, the larger European powers began to conduct a total European foreign policy from the end of the fifteenth century, which led in part to fundamental conflicts about their position in Europe. Some European powers came into contact with other parts of the world and their powers, which were all non-Christian and non-European, during the age of discovery in both a peaceful and warring manner. The European and international world became more complex and now required an appropriate and specific body of law.

In practice, institutions of law which have been passed down are further developed, such as the law of contract, and new ones are created, such as the permanent diplomatic legations. In academic terms the formation and development of modern international law began with the late Spanish scholastics Francisco de Vitoria, Francisco Suarez and Fernando Vasquez. Authors in other countries also made their contribution, such as Albericus Gentilis in England. [14] The main piece of work dating from this epoch and still today is the extensive account of the Dutchman Hugo Grotius "De iure belli ac pacis" which was first published in Paris in 1625, but was forthwith published throughout Europe in Latin and in translations, undergoing ever new editions right into this century. [15 ]Grotius aimed to present and set out "the law between the nations and their rulers" [16] which as yet had only been covered by few authors. Although he is not the "father of international law", as he was considered to be for a long time, he was the first to provide an extensive and fundamental account of its content.

2. The Teachings of International Law: The central functions of the teachings of international law was to anchor and embody this law above and beyond the legislative rights of the European powers as a given body of law. In order to achieve this, the teachings latched onto the old teachings of ius gentium, which brought ius gentium in close connection and interaction with natural law, ius naturalis. [17 ]The account of this relationship had enjoyed great variations from Roman lawyers to Thomas of Aquinas and later authors. In general, however, ius gentium was viewed as a concretising of natural law, thus being determined and dependent thereon. Modern international law also appears to be natural law applied to the relations between nations, powers, monarchs and states well into the nineteenth century. [18]

The nature of natural law changed likewise. Thomas of Aquinas and the late Spanish scholastics, as well as parts of the teachings of the reformation, had brought natural law in close connection with divine law, ius divinum, and divine creation. This close linkage between natural law, divine law and creation theology began to break down in the sixteenth century, not least because the reformation had caused divine law itself to become uncertain and controversial.

3. Hugo Grotius: The Dutch politician and theoretician (1583 - 1645) [19 ]continued in the tradition of seeing human beings as socially determined beings, who wish to live "in a quiet and, according to the measure of their insight, orderly community with people like themselves". [20] The resulting responsibility for the community corresponds to reason, being "the source of that which one can rightly call the law" [21]. This includes, among others, " the commitment to fulfil given promises". [22] Following further deductions of general principles of this law he states: "The rules presented here would also take their place, even if one assumed, which obviously could not occur without sinning greatly, that there was no God or that he was not concerned about human affairs". [23] Natural law does accordingly exist independently of ius divinum and creation. However, in the final analysis Grotius also sees this law as coming from God "because it was his will that human beings came into existence". [24] Natural law thus becomes secularised and through this process its validity is generalised beyond Europe and Christianity.

In terms of its content, Grotius determines the natural law to be "a rule of reason, which demonstrates that an action can itself have an inherent moral ugliness or a moral necessity due to its agreement or non-agreement with the reasonable nature". [25]It is also valid between nations as a natural international law, ius gentium naturale. Next to this stands the international law which is dependent on human will, ius gentium voluntarium. Both customary law and contract law belong to the latter. As human law it is not equally valid everywhere. Both together, natural international law and voluntary international law, in the law laid down by the rule of reason and the will of the nations, determine the law between the nations.

Natural international law is an objective reality in which the powers can act and order their relations on their own. Their legal power, right up to their very sovereignty rests on this law. In principle there is no sovereignty which can oppose natural international law. It is for this reason not available to them, but its principles are very general and open. Thus, with voluntary international law the powers, nations and states have an instrument that can provide concrete assistance in their legal relations with one another through customary law and contract law. Voluntary international law derives its legitimacy from natural international law, but is also able to vary this in adaptation to the reality of the power relations.

4. Academic Science and Practice: The natural and voluntary laws share a fundamental weakness which they have not overcome even to the present day: There is no one who can establish the content of this international law with global legitimisation. Each one of the equally placed powers interprets and decides for themselves which rights arise from international law. When this interpretation diverges, above all in the concrete case of a conflict, then even war cannot be excluded. Only academic science can claim a certain general, but by no means neutral, meaning and significance in the elaboration, refinement, presentation and development of this new area of law. Thus, an abundance of writings on general international law, as well as on special problem areas, emerged from the seventeenth and eighteenth century.

It is difficult to establish whether these works present an authoritative instance for the practice of international law. The practice in Münster and Osnabrück did what it had to do, namely create peace by means of treaty. A plethora of practical legal questions were discussed and argued about in great detail. The law had to be made concrete, and in part find its structure in the negotiation room. One was conscious of the fact that the each solution would in any case have legal consequences in the future which could not easily be amended again. Voluntary international law of treaties and practices determined concrete relations, but also the long term development of international law. Natural international law only provided a general foundation. The modern European order of equal and sovereign powers required a workable and adaptable law.

The two treaties do not form the beginning of modern international law. [26 ]They can, however, on the one hand be seen as a very fundamental case of the application of the developing international law. On the other hand, they shaped the way for the future development of voluntary international law, both in content and structure, thus representing a decisive step in the development of this new law.



V. The Treaties and International Law

1. Contractual capacity: Only legally organised independent powers or their rulers now have contractual capacity, not submissive estates or private persons. Present as participant partners at the negotiations and the treaties, alongside the emperor, the monarchs and republics were the estates of the empire but not the French estates. Only independent powers and rulers participated in the Treaty of Osnabrück; this was not the case in previous treaties of the sixteenth century which allowed members of royal families without ruling power to participate.

2. Equality: The legal equality of powers is a basic rule. The above mentioned factual differences do not in principle have legal effect. All monarchs received the title "Majesty". The plenipotentiaries of the republics achieved equal position with the monarchs in terms of protocol. The representatives of the Kurfürsten received the same title as the plenipotentiaries of the monarchs, namely the title of "Excellency" following lengthy negotiations. There was still considerable differentiation in terms of protocol, with honorary pre-eminence and hierarchical nuances. [27] The rights assigned to the estates of the empire were not completely equal to those assigned to the monarchs and the sovereign republics. Legal equalities are not complete equalities. The voluntary positive international law modified the principle of the equality of powers according to natural international law.

3. New and old law: Above all, however, the treaties are firmly embedded in the European tradition, yet they represent a qualified new beginning. It was customary for treaties to refer to older treaties which had been concluded between the partners. However, the treaties of Münster and Osnabrück only referred to the Religious Peace of Passau and Augsburg in 1552 and 1555 in the internal constitutional law of the empire. Older international treaties were not included.

This was due to the fact that the emperor and the empire had not concluded any relevant contractual regulations with the crowns of France and Sweden at an earlier point in time. In both treaties of Münster and Osnabrück, relations between the emperor and the empire and the two contracting parties were fundamentally regulated for the first time.

The treaties of Münster and Osnabrück also represented a new start in terms of their content. As mentioned previously, the new law of the treaties was given pre-eminence in Art. XVII § 3 IPO / § 113 IPM in case of conflict with older secular or religious law. Above all, their invalidity could not be claimed on this basis. This was also intended to prevent the expected and then received papal protest against the treaties on the basis of their indisputable contradiction to canonical law having legal effect. [28 ]The formulation was quite general and extensive and expressly covered religious and secular law, which were listed individually, including ecclesiastical council decisions, Kapitulationen of the emperor and others, legal decisions, as well as concordats and especially the Peace of Prague of 1635, thus including acts of international law. Thus the new voluntary international law which rested on the legally significant will of the contracting parties, became the first source of law for relations between states, displacing conventional law and even the God-given canon law. This also applied to constitutional law. The previous situation in the empire was in part reinstated through the amnesty and above all through the extensive restitutions, but new regulations were also necessary. This was true in religious, secular and territorial issues. Thus, a freedom to make provisions was necessary for the contracting parties, both internally and externally.

The conventions were not easily available, but neither were they inviolable. Thus, the central area of Europe could be divided into significant areas through agreed legal regulation. The newly won sovereignty of the powers determined the creation of international law, whose content had already been determined in the sixteenth century by the French statesman and theoretician Jean Bodin: "de donner la loi à tous en général et à chacun en particulier". [29]

4. Denominational Neutrality: The treaties confirmed and extended above all the denominational neutrality of modern international law. The participants in the Congress were all those powers involved in the war, irrespective of their denomination. Although a Christian peace was concluded, a "christlicher Friede" and "pax christiana", in the name of the most holy trinity ("Namen der allerheiligste Dreifaltigkeit"), "in nomine sacrosanctae et individuae trinitatis", it was a general Christianity and not a denominational one. Catholics, Lutherans and Calvinists were partners in the treaties; the Orthodox were also included with the grand prince of Moscow in the IPO and with that in the community of international law. The Pope was also involved, not as the religious leader of Europe or the world, but as the secular ruler of a territory. The religious estates of the empire also only participated in the new order in terms of their secular capacity. Even the Sultan formed a part, if only in a modified manner, of the community of international law.

5. Guarantee: The previously mentioned new kind of guarantee through the parties to the treaties in Art. XVII §§ 5, 6 IPO / §§ 115, 116 IPM was to be executed in two stages. In the first stage, one must strive for a friendly settlement or a legal decision. [30 ]Only if these attempts remained unsuccessful for three years could military steps be taken. This guarantee replaced the older guarantee which relied on linking the affirmation of the oaths by the parties to the treaty and their submission to the papal power to bind and annul. [31 ]This affirmation of the oaths was not a component of the treaties of Münster and Osnabrück. Similar regulations can be found in later treaties. However, these regulations always refer to these treaties only. A new instrument of international law arises, but this does not lead to a general system of the peaceful settlement of conflicts or even a system of collective security.

6. Congress Diplomacy: The warring parties were present at the congress; other powers were also present, whether as mediators, such as the Pope and the Republic of Venice, or simply as interested parties, such as the King of Portugal and the City of Basel. Not all European states were represented, but it was nevertheless apparent from the large numbers of powers present that a general issue was being negotiated which had to be overcome together.

A congress of this nature, with principally equal representatives of monarchs, republics and other powers had no predecessor to model itself on. It could not be compared to ecclesiastical councils or the convening of the Imperial Diet as the latter both had an internal order. The legal position of individual participants was fixed and the forms and procedure of the negotiations were already laid down. There was also a chairmanship to administrate affairs etc. This was not the case here. Everything had to be developed for the first time. [32 ]Yet questions of protocol were of the greatest significance. Negotiations were usually bipartite, on a direct basis in Osnabrück and through mediators in Münster. A full session with all representatives never took place. As the negotiations took place in two locations between different partners about partly identical and partly different issues, very complicated synchronisation procedures and negotiations were necessary between the alliances as their results then had to be maintained against the respective other side. A unitary system of peace was supposed to emerge and above all a separate peace was to be avoided. This task was made more difficult by the participation of the estates of the empire and the special wishes of smaller powers.

The course of events at the congress also received a legally formative function. Once a certain stage had been reached in terms of the content of the regulations, through the propositions of the diplomats, agreements between them and fixed written agreements, the parties could not as a rule renege upon this although binding legal relations had not yet been entered into. The texts of both treaties developed over a long period of time. They also had to be closely co-ordinated. Substantial sections concerning the general peace as well as the empire-internal peace had to be identical in their texts. Both treaties formed a treaty system. This did not only lead to complicated negotiation structures but also an interlocking of the texts. This required successive fixed writings which then acted as a foundation upon which the next respective agreement could be built. This procedure was, to a certain extent, born here. But it was also to be further used, developed and refined.

It was altogether successful: modern voluntary international treaty law was made functional and a complicated treaty system between various participants was negotiated and concluded on the basis of legal equality in principle for all representatives, with differences in the protocol between them. However, its durability and future effectiveness remained under the reservation of its observance.



VI. The Continuing Influence of the Treaties

1. Pax perpetua: On a purely external basis the treaties did not form a pax perpetua. The French king and the emperor and the empire were again at war in 1672. Sweden was already at war with the emperor and some of the estates of the empire, as the latter fought on Poland's side against Sweden after the Swedish-Polish cease-fire expired. Further wars followed until the Spanish War of Succession. Thus new peace treaties always had to be concluded: 1679 in Nimwegen, 1697 in Rijswijk, 1713 in Utrecht. Following these treaties there were further wars. However, each new peace agreement between contracting parties to one of the treaties of Münster and Osnabrück was based on the latter as a norma or norme or fundamentum or base. The regulation of mutual relations created by the two treaties was therefore seen as fundamental and permanent, in which the structures and relevant details should not be changed, but rather secured and developed further.

Treaties which involved one or more contracting parties to the Treaties of Westphalia with other partners or powers did not themselves incorporate the treaties of Münster or Osnabrück. They were not general European treaties, but rather specific treaties between specific partners.

2. Droit public de l'Europe: The treaties of Münster and Osnabrück also form a building block in the legal and political European order which was extended through the above mentioned treaties, as well as further treaties of the eighteenth century. [33 ]Large congresses were organised again to respectively re-establish European peace. Numerous inter-linked bilateral treaties were concluded; but the links were never as close and dense in terms of form and content as they were in 1648; nevertheless complete regulation was sought and achieved respectively.

The eighteenth century already saw in the succession of treaties which respectively achieved a new contractual peace the development of a treaty-based European Public Law, "droit public de l'Europe", "fondé sur les traités" [34], a self-created, contractual general legal order built on consensus. Smaller treaties embedded themselves in them and made them complete. Indeed, although they were all specific treaties between the respective partners, they complemented one another. Despite this, by no means did it create a closed body of law. It did not regulate all problems and questions, instead it addressed certain aspects which arose out of the prior relations during the war, or at the most some general principles, such as the equilibrium of powers since Utrecht in 1713. It was not yet possible to successfully regulate for the future by developing procedures and institutions for the settlement of conflicts. The settlement of conflict clauses already mentioned were not valid for the future, neither for the contracting parties nor for third parties. For their solution there is no "cooling off "phase before a war. This treaty law does not prevent new wars based on new conflicts, but provides a framework for them. Treaty-based peace agreements of the seventeenth and eighteenth century are always endangered by new wars and thus never final. However, a legally normative network is built up which restrains war for over 150 years, a general foundation which again and again enables the return to a jointly created peace.

FOOTNOTES