The present international system is broadly thought to consist of nation-states possessing certain essential characteristics: a fixed population and territory, formal equality in external relations and, in nearly all cases, unquestioned domestic authority to conduct its internal affairs in any way it deems fit. That last characteristic, often viewed by historians, legal actors and diplomats as a central and indispensable principle of the international system, is the one most commonly associated with status as a nation-state and, in the language of international law, is understood as the essence of sovereignty. With respect to the internal authority of a sovereign nation-state, few concepts of law in the history of Western or any civilization are viewed in such absolute terms. While slow, progressive strides have been made in humanitarian and human rights law, the orthodox core of international law maintains that such trends are mere outgrowths of the positive and consensual law of sovereign states. Sovereignty is therefore viewed as a fixed star, around which all other forces in international law and political affairs must move. When inquiries are made into the source of international law’s slavish adherence to internal sovereignty, the inquisitor is invariably referred to the Treaties of Westphalia of 1648, the ostensible foundation for the orthodox view of international law. However, as is explored in the work that follows, emerging historical scholarship and a closer view at the treaties themselves contradict the orthodox perspective on a number of serious and substantive points. Despite its dubious historical account, the orthodox view has permanently influenced the development of international theory and law, particularly as applied to the domestic jurisdiction clause of the Charter of the United Nations. The Charter’s travaux preparatoires reveal that the post-World War II Great Powers utilized the false historical and normative assumptions of the orthodox Westphalian view to eviscerate meaningful provisions for humanitarian intervention, a consequence of the myth of Westphalia that can be felt even today.
Carley, Stephen, "Limping Toward Elysium: Impediments Created by the Myth of Westphalia on Humanitarian Intervention in the International Legal System Note" (2009). Connecticut Law Review. 40.