The Transformation of the International Legal System: The Post-Westphalian Legal Order
27 Pages Posted: 22 Oct 2007 Last revised: 13 May 2012
Date Written: May 12, 2012
Traces the rise and decline of the national state as hermetic juridical atom (realist 'billiard ball' theory) and its replacement by a multilevel theory which sublimates state power upward as it dissolves it downward to non-state actors. Argues that classical sovereignty created and encouraged war and that post-Westphalian world is integrated networked and much more stable. Outlines transformation of the state through localisation of some functions and globalization of others. Concludes the Westphalian state system ended by 1989 at latest. 22 pages, 162 notes.
Citations from the text: The rise of private rights and duties under national and international law enforced through universal jurisdiction and supranational trading systems both global and regional together mark the end of the Westphalian state system. In this system, states were the sole subject of international law, having final and absolute authority within their sovereign territory. In a first wave of national liberation following the First World War, Europe's multinational empires were disbanded and re-aggregated into nation-states with a rough congruence of borders and ethnos. Exile governments and insurgencies are not the only examples of limited international legal personality granted to non-state actors breaking from the Westphalian principle of sovereignty. Though states remain the center of the international system, the periphery is increasingly important. Thus, though it is premature to speak of the death of sovereignty, we can speak of an erosion and transformation of the sovereign power from a unitary hierarchy to multiple poles of competing influence, often determined functionally. The direct imputation of individual rights and duties is clearly in contradiction to the former principle that only states had rights and duties under international law.
Eric A. Engle. "The Transformation of the International Legal System: The Post-Westphalian Legal Order" Bridgeport Law Review/Quinnipiac Law Review 23.Quinnipiac L. Rev. (2004): 23-45. Available online.
Keywords: transformation of the state, localisation, functionalism, globalization, Westphalian, state system, 1989
JEL Classification: K33
Suggested Citation: Suggested Citation