The Legitimacy of Non Reigning Royal Families

by Salvatore Caputo

  by states, and states were free to accept or reject these laws. In order to be effective, international laws needed to be ratified and implemented at the domestic level.

  (Picture above: Prof. Benedict Kingsbury, Director of the Institute for International Law and Justice, works on the issues of indigenous peoples and directs the Program in the History and Theory of International Law and the Global Administrative Law Project.

  (Picture left: Nico Krich. After studies in law and international relations in Berlin, Geneva and Heidelberg, he has received a Ph.D. in law from the University of Heidelberg. He also holds the Diploma of European Law of the Academy of European Law in Florence, Italy. Nico is the author of "Selbstverteidigung und kollektive Sicherheit" (Self-defense and Collective Security, 2001) and of several articles on the United Nations collective security system, on the use of force in international law, on international and European human rights law, and on the role of the United States in international law. He is currently pursuing

  projects on the role of constitutionalism in a fragmenting legal order, on hegemony in international law, and on global administrative law).

  The basis for the legitimacy of international law is changing. International law used to be considered legitimate when it rested on the agreement of sovereign states. Domestically, however, states were free to organize institutions as they saw fit. However, it has become less important for states to ratify and implement international law. Domestic institutions are subject to international regulations that they did not officially agree to.

  International law comes from new sources. International regulation now flows from sources other than states. Sources like public-private or even purely private institutions now serve to create global law. Additionally, international judicial bodies define and extend international law. At one time, international regulation generally counted as “formal law” when it originated in agreements among states. However, it no longer makes sense to limit the term “law” to formal state agreements or widespread conventional practices. Increasingly, non-state actors are involved in coordinating and regulating global activity.

  International law comes from four sources: (1) Treaties and agreements;

  (2) Customary law;

  (3) General principles of law common to major legal systems; and (4) Judicial decisions and scholarly teachings.

  Treaties and customary law have equal authority as international law. If they conflict, the “last in time” rule operates, meaning that whichever came into force most recently takes precedence. When treaties and customary law are not helpful, one may then consult general principles, which most frequently come into play to determine procedural matters. If an issue cannot be resolved after examining these sources, decision makers should then consult scholarly articles and judicial opinions.

  However, overburdened judges often rely on scholarly works as definitive evidence of customary international law or general principles instead of conducting independent assessments of primary sources.

  Customary International Humanitarian Law addresses customary international law, and specifically, customary International Humanitarian Law (IHL). Customary law is “international custom, as evidence of a general practice accepted as law,” resulting from “a general and consistent practice of states followed by them from a sense of legal obligation.” Thus, a principle is considered customary law if many states across the world feel legally obliged to follow that principle. This sense of legal obligation is commonly referred to as opinio juris.

  Traditionally, customary law is meant to reflect the world as it actually exists and is not intended to reflect aspirations or ideals. Knowing that international and domestic judges are likely to treat this listing similarly to the way American judges treat restatements of common law.

  RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES

  § 102 (1987) (recognizing as sources of international law treaties and agreements; customary law; and general principles of law); see Statute of the International Court of Justice art. 38, June 26, 1945, 59 Stat. 1055, 1060, T.S. No. 993 (recognizing that the International Court of Justice (ICJ) can use “judicial decisions and the teachings of the most highly qualified publicists of the various nations” to decide disputes).

  There are a plethora of multilateral treaties which address the issue of IHL, but not all states are parties to every treaty and a majority of the treaties only pertain to international conflict. The division between international and noninternational conflict dates to the Geneva Conventions, some of the few treaties to which every state is a party. The Geneva Conventions, with the exception of the very vague and general Common Article, only apply to international conflict.

  (Geneva Conventions consist of four treaties formulated in Geneva, Switzerland, that set the standards for international law for humanitarian concerns. These four treaties are the basis for humanitarian law across the world). http://en.wikipedia.org/wiki/Geneva_Conventions).

  KINGDOM OF WESTPHALIA

  Napoleon created the Kingdom of Westphalia in December 1807 following the treaty of Tilsit, by amalgamating the territories of nearly two dozen German states. A majority of the people had originally been subjects of Prussia, Brunswick, Hannover, or the Hessian principalities. In many ways, Westphalia was to be the centerpiece of the new Confederation of the Rhine, and a showcase of the new, Napoleonic Germany, as such it was obliged to provide a 25,000 strong contingent to the Grande Armee in the event of war. Unlike the other major components of the Confederation, Westphalia was the only large German state that did not represent an extant, longstanding German dynasty.

  (Picture: Jérôme-Napoléon Bonaparte, 15 November 1784 – 24 June 1860). A French king on a German throne)

  The Emperor appointed his 23-year-old brother Jerome as king and arranged Jerome’s marriage to Princess Catherine of Württemberg. The new kingdom’s design, however, was entirely Napoleon’s, and the early administration overwhelmingly French. Napoleon gave Jerome Westphalia’s constitution with a stern reminder that it was a reflection of the emperor’s own “glory.” He monitored Jerome’s correspondence and micromanaged his diplomacy. He frequently vetoed Jerome’s picks for administrators, or intervened to change them. Westphalian newspapers were closely monitored by French authorities, at Napoleon’s direct instructions. One Westphalian nobleman commented that, “the Emperor considers the kingdom not to be a sovereign state but rather an extension of France.”

  Westphalia therefore came into the world already fraught with problems of loyalty: a foreign king; an imported foreign aristocracy with shaky claims on the land; an angry native former-aristocracy with good reason to plot against the status-quo; a foreign language used in the administration of public affairs; and the burdens of imperial service.

  The Westphalia army created to meet this requirement was closely modeled on that of France and by the end of 1808 comprised the royal garde grenadier and jäger battalions, the chevau-leger regiment and a garde-du-corps squadron. The line consisted of an elite jäger-carabinier battalion (normally attached to the Garde), six line infantry regiments each of two battalions, one light battalion, one cuirassier regiment, one chevau-leger regiment plus national guards and veterans units.

  In July of 1808 the 2nd cuirassier, 7th and 8th Line infantry regiments and the 2nd light infantry battalion were raised. In 1810 the 1st and 2nd hussar regiments were raised, in 1811 the 3rd light infantry battalion and two line infantry regiments (2nd and 7th) added a third field battalion. In 1812 a new two battalion garde infantry regiment (fusiliers) was raised, together with the 9th line regiment, the 4th light battalion and the 2nd chevau-leger regiment.

  Following the disastrous retreat from Russia less than 1,000 Westphalia survivors gathered at Thorn during January 1813. The garde-du-corps squadron, the grenadier garde, jäger-garde, cheval-legers-garde, the jäger-carabinier and 3rd light battalions, the 1st cheval-legers and the 1st & 2nd cuirassiers were all in Westphalia and disbanded when t
he end of the Kingdom came in September 1813.

  Throughout its history, the dynasty, as well as being Emperors of the French, held various other titles and territories including; their ancestral nation the Kingdom of Italy, Kingdom of Spain, Kingdom of Westphalia, Kingdom of Holland and the Kingdom of Naples. The dynasty wasin a position of power for around a decade until the Napoleonic Wars began to take their toll. Making very powerful enemies such as Austria, United Kingdom, Russia and Prussia, as well as royalist (particularly Bourbon) restoration movements in France, Spain, the Two Sicilies and Sardinia, the dynasty eventually collapsed under its own weight.

  THE TREATY OF WSTPHALIA

  The Peace of Westphalia, also known as the treaties of Münster and Osnabrück respectively, refers to the series of treaties that ended the Thirty Years' War, the Eighty Years' War, and "officially" recognized the United Provinces and Switzerland. The treaty was signed October 24 1648, and meant an end to the long conflict between Catholic and Protestant forces.

  The precedent is what was done after the Thirty Years War and the Peace of Westphalia. The end of the Thirty Years War was in 1648; it was a war which rampaged in waves, like tornadoes, for 30 years, involving many European countries, including Germany, the Hapsburg Empire, France, Sweden, Bohemia, and Denmark.

  The Peace of Westphalia, when all the war parties came together, was the first time that a European community of sovereign states was established. And it was only possible because all of its members recognized each other as having equal legal standing, and guaranteed each other their independence. They had to recognize their international legal treaties as binding, if they wanted to be an international community of law.

  The results of the treaty were wide ranging. Among other things, the Netherlands gained independence from Spain, ending the Eighty Years' War, and Sweden gained Pomerania, Wismar and Bremen-Verden. The power of the Holy Roman Emperor was broken, and the rulers of the German states were again able to determine the religion of their lands. The treaty also gave Calvinists legal recognition. Three new great Powers arose from this peace: Sweden, the United Netherlands and France. Sweden's time as a Great Power was to be short lived, however.

  Such principles exist in the treaties of 1648. Some were expressed for the first time in history. These negotiations lasted for four years, during 1644-48, and in the end, Protestants, Catholics, monarchies, and republican forms of government, were treated as having equal status in negotiations and in the treaty.

  The Peace of Westphalia marked the end of the Holy Roman Empire as an effective institution and inaugurated the modern European state system. The chief participants in the negotiations were the allies Sweden and France; their opponents, Spain and the Holy Roman Empire; and the various parts of the empire together with the newly independent Netherlands. Earlier endeavors to bring about a general peace had been unsuccessful. The compact known as the Peace of Prague (May, 1635) marked a step in the direction of peace and signaled the belief of the Protestant powers that the Swedish forces on which they depended would not be able to maintain a preponderant role in Germany. The conditions of the compact were not in accord with Richelieu's design to break up the imperial power, however, and the war continued despite offers of mediation from the pope and the king of Denmark. Congresses were proposed and discarded.

  It was not until Dec. 25, 1641, that a preliminary treaty provided for two concurrent conferences—at Münster and Osnabrück. The conferences, fixed for 1643, met in 1644 and began serious work in 1645. The treaties were signed Oct. 24, 1648. Through the French and Swedish "satisfactions" the power and influence of the Holy Roman Empire and of the house of Hapsburg were lessened. The sovereignty of the German states was recognized, and the empire continued only in name.

  France, emerging as the dominant European power, had its sovereignty over three bishoprics (Metz, Toul, and Verdun) and over Pinerolo confirmed. Breisach was made over to France. Alsace was cededdespite ambiguity of title, and France was allowed to fortify a garrison at Philippsburg.

  Sweden obtained W Pomerania, including Stettin and the island of Rügen; the archbishopric (but not the city) of Bremen and the adjoining bishopric of Verden; and Wismar and the island of Pöl. It was agreed that the Upper Palatinate and the old electoral vote should remain with Bavaria, while the Rhenish Palatinate, with a new electoral vote, was assigned to Charles Louis, the son of Frederick the Winter King.

  The Swiss Confederation and the independent Netherlands were explicitly recognized. The elector of Brandenburg received compensation for Pomerania; the duke of Mecklenburg, for Pöl and part of Wismar. The outcome of the religious deliberations was significant. Territorial rulers continued to determine the religion of their subjects, but it was stipulated that subjects could worship as they had in 1624. Terms of forced emigration were eased; Calvinism was recognized; and rulers could allow full toleration, at their discretion. Finally, religious questions could no longer be decided by a majority of the imperial estates. Future disputes were to be resolved by a compromise between the confessions. The era of religious warfare was over, and a general attempt had been made toward religious toleration.

  The majority of the treaty can be attributed to the work of Cardinal Mazarin who was de facto leader of France at the time. France came out of the war in a far better position than any other Power and was able to dictate much of the treaty.

  (Picture on right: Cardinal Jules Mazarin 1602–61, French statesman, cardinal of the Roman Catholic Church. His original name was Giulio Mazarini)

  Westphalia Sovereignty (From Wikipedia, the free encyclopedia) “Westphalia sovereignty is the concept of nation-state sovereignty based on

  two principles: territoriality and the exclusion of external actors from domestic authority structures. Many academics have asserted that the international system of states, multinational corporations and organizations which exists today began in 1648 at the Peace of Westphalia. Both the basis and the result of this view have been attacked by revisionist academics and politicians alike, with revisionists questioning the significance of the Peace, and commentators and politicians attacking the Westphalia System of sovereign nation-states.”

  Modern views on the Westphalia System

  (From New World Encyclopedia

  http://www.newworldencyclopedia.org/entry/Peace_of_Westphalia)

  The Westphalia System is used as a shorthand by academics to describe the system of states which the world is made up of today. In 1998 a symposium on the continuing political relevance of the Peace of Westphalia, then–NATO Secretary General Javier Solana said that "humanity and democracy [were] two principles essentially irrelevant to the original Westphalia order" and levied a criticism that "the Westphalia system had its limits. For one, the principle of sovereignty it relied on also produced the basis for rivalry, not community of states; exclusion, not integration."

  In 2000, then–German foreign minister Joschka Fischer referred to the Peace of Westphalia in his Humboldt Speech, which argued that the system of European politics set up by Westphalia was obsolete: "The core of the concept of Europe after 1945 was and still is a rejection of the European balance-of-power principle and the hegemonic ambitions of individual states that had emerged following the Peace of Westphalia in 1648, a rejection which took the form of closer meshing of vital interests and the transfer of nation-state sovereign rights to supranational European institutions."

  In the aftermath of the March 11, 2004 Madrid terrorist attacks, Lewis ‘Atiyyatullah, who claims to represent the terrorist network al-Qaeda, declared that "the international system built-up by the West since the Treaty of Westphalia will collapse; and a new international system will rise under the leadership of a mighty Islamic state.” It has also been claimed that globalization is bringing an evolution of the international system past the sovereign Westphalia state.

  However, European nationalists and some American paleoconservatives such as Pat Buchanan hold a favorable view of the Westphalia state. Supporters o
f the Westphalian state oppose socialism and some forms of capitalism for undermining the nation-state. A major theme of Buchanan's political career, for example, has been attacking globalization, critical theory, neoconservatism, and other philosophies he considers detrimental to today's Western nations.

  MONARCHY

  Monarchy is a form of government in which a monarch, usually a single person, is the head of state. Monarchy is when a king, queen, or emperor that rule the country. Monarchy is one of the oldest types of government and has been in continuous existence for most of recorded history.

  Monarchy is one of the oldest forms of government, with echoes in the leadership of tribal chiefs. Many monarchs once claimed to rule by divine right, or at least by divine grace, ruling either by the will of the god(s) or even claiming to be (incarnated) gods themselves (Theocracy - a form of government in which God or a deity is recognized as the supreme civil ruler, the God's or deity's laws being interpreted by the ecclesiastical authorities). Monarchs have also been selected by election, either in a broad popular assembly), as in Germanic tribal states; or by a small body, such as in the Holy Roman Empire, and as in Malaysia and the United Arab Emirates today; or by dynastic succession; or by conquest; or a combination of any number of ways. In some early systems the monarch was overthrown or sacrificed when it became apparent that divine sanction had been withdrawn.

  The term monarchy is also used to refer to the people (especially the dynasty, also known as royalty) and institutions that make up the royal or imperial establishment, or to the realm over which the monarch reigns. Monarchs serve as symbols of continuity and statehood. Today, the extent of a monarch's actual powers varies from monarchy to monarchy. In constitutional monarchies, wherein sovereignty rests formally with the crown but politically with 'the people' (usually the electorate, as represented by a parliament), the monarch now usually serves largely ceremonial functions, except in times of crisis. Many monarchies are constituted by tradition or by codified law, so that the monarch has little real political power; in others the monarch holds some power but is limited from exercising it by popular opinion or precedent; in still others the monarch holds substantial power and may exercise it without limit. However, the majority of monarchs today are bound by rule of law rather than rule of human will.