10.08.2004
An Apologia of the Westphalian System
№3 2004 July/September

Despite the profound and numerous changes in the world over the
last 15 years, state sovereignty remains the basis of the
constitutional systems in a majority of countries. However, unlike
the situation that evolved following the signing of the Treaty of
Westphalia in 1648, the present sovereignty of democratic,
rule-of-law states is significantly restricted by internal and
external factors, as well as by legal regulations. Yet the
provisions outlined in the Treaty of Westphalia remain unchanged
for these democracies, including the Russian Federation: the
supremacy and independence of state power on the territory of a
state; independence in international contacts; and the integrity
and inviolability of the state’s territory.

Many voices are being raised for a revision of some
international laws and principles. This refers, above all, to Point
7 of Article 2 of the UN Charter’s Chapter I, which proclaims the
principle of non-interference in “matters which are essentially
within the domestic jurisdiction of any state.”
They propose replacing the state sovereignty principle with a
principle of global security governance by a ‘renewed’ UN and its
Security Council. These individuals forget, however, that the UN
emerged and exists only owing to the will of sovereign states which
set themselves the goal of preventing global catastrophes, such as
World War II. At the same time, the UN is the successor to the
Westphalian political system, under which the first
intergovernmental and international nongovernmental organizations
were established. (In the first half of the 19th century, after the
victory over Napoleon, the Standing Rhine Shipping Commission was
established, followed by the International Telegraph Union, the
Universal Postal Union, etc.) The two world wars in the 20th
century did not shake this system, which became even more
consolidated after the establishment of the United Nations.
And now, at the beginning of the 21st century and after September
11, 2001, there has emerged the most serious and most probable
threat to the existence of the Westphalian system and thus to the
foundations of the constitutional systems of sovereign states.

The Westphalian system is being attacked from two directions.
First, the principles of state sovereignty and territorial
integrity are being placed in opposition to human rights and
nations’ right to self-determination. Second, nation states are
being blamed for their inability to ensure effective governance
under conditions of globalization.

Sovereignty and the threat of Russia’s
breakup

The possible consequences of the first approach are well known:
suffice it to recall the breakup of the Soviet Union and
Yugoslavia. Perhaps it was those tragic experiences that helped to
largely overcome this dangerous tendency, a tendency which calls
into question the principle of sovereignty and which can
potentially destroy Russia’s statehood. Yet it would be too early
to say that centrifugal forces in Russia have lost their
dynamism.

Even now, after the 2004 presidential elections, some regional
leaders speak of the need to build the federation on the basis of
“divided sovereignty,” although the Constitutional Court has ruled
that provisions about sovereignty must be excluded from the
constitutions of the Russian Federation’s entities.
The Constitutional Court holds that “the Constitution does not
permit any other bearer of sovereignty and source of power than the
multi-ethnic people of Russia and, consequently, does not provide
for any other state sovereignty than the sovereignty of the Russian
Federation. In keeping with the Russian Federation Constitution,
the sovereignty of the Russian Federation rules out the existence
of two levels of sovereign authorities within a single system of
state government, which would enjoy supremacy and independence.
That is, it does not permit sovereignty of republics or other
entities of the Russian Federation.”

Since the Russian Federation Constitution was put into effect
ten years ago, the disintegration of the state has been the
greatest and most probable threat to the country. The greatest
threat is not financial default, increasing social inequality, or
soaring poverty, nor is it the spread of social vices, such as
crime, corruption, prostitution and the addiction to alcohol and
drugs. The greatest threat is simply the breakup of the country.
Any social crises can be overcome, while the breakup of the state
is irreversible. Only the Constitution now in force has helped to
stop a breakup of the Russian Federation.

Recent history has shown that a state’s breakup is always
accompanied by mass violence, an encroachment on its citizens’
rights, and possibly even genocide. What can prevent the breakup of
sovereign states and protect them against separatism and violations
of territorial integrity? An important role here is played by
provisions of international law harmonized with national law.

The negative consequences which accompany the disintegration of
a state can be overcome with the help of international regulations
for the withdrawal of an ethnic-territorial entity from a sovereign
state. Without such regulations, the international community will
always be in a dilemma as to how to define one or another
phenomenon – as the consequence of a national-liberation movement
or as the manifestation of separatism coupled with terrorism? The
formula of the above regulations must be based only on the
recognition of the principles of sovereignty, incorporated in the
constitutions of sovereign states. That is, the parties involved in
specific ethnic or political confrontations must stop resorting to
bombings, killings and hostage-taking techniques and initiate
international legal proceedings, which the international community
must coordinate.

Globalization against law

The Westphalian system is now being attacked from another
direction, as some individuals are asserting that nation states are
unable to ensure effective governance in the conditions of
globalization due to their ‘outdated territorial instincts’ (see
High Noon: Twenty Global Problems, Twenty Years to Solve Them by
Jean-Franзois Rischard, the World Bank’s vice-president for
Europe). Therefore, these individuals have introduced the idea of
‘networked governance’ and establishing networked organizations for
solving global problems.

The ideologists of these networked structures admit that this
‘new thinking’ is not safeguarded against serious mistakes. Yet,
they insist, this is the inevitable price that must be paid.
According to Rischard, the present international structure,
together with any cosmetic reform of this structure per se, will
not lead to positive results. In other words, this ideology
provides for the demolition of everything: the Westphalian system,
state sovereignties, territorial integrity and, consequently, the
established system of international law. All of these will be the
price to pay.

Renouncing the Westphalian system would also result in replacing
multilateralism with unilateralism (this process has already begun
after September 11, 2001). I fully agree with Manuel Castels who
said in an interview with the Expert magazine (No.18/2003, Network
and Chaos, pp. 75-76) that, when unilateralist logic is imposed on
a multilateral world, chaos naturally arises. In this sense, we
have really found ourselves in an absolutely chaotic world where
everything has become unpredictable. In a lawless universal chaos,
there is only one law: the law of the strong and aggressive – the
law of the superpower, the dictators, and the leaders of the Mafia,
not to mention the terrorist organizations.

American political analysts are increasingly using the
expression ‘soft sovereignty.’ The ‘right of ethnic minorities and
regions to self-determination,’ together with ‘humanitarian
intervention,’ is being forwarded in opposition to the idea of
national sovereignties. Prominent U.S. policymaker Henry Kissinger,
in last year’s interview with Die Welt magazine, announced the
death of the Westphalian system and the senselessness of the idea
of state sovereignties.

Moreover, there is already an aggressive ‘scientific’
substantiation of the idea for destroying the Westphalian system.
For example, Michael Glennon, a U.S. ideologist of this theory,
believes that “architects of an authentic new world order must
therefore move beyond castles in the air – beyond imaginary truths
that transcend politics – such as, for example, just war theory and
the notion of the sovereign equality of states. These and other
stale dogmas rest on archaic notions of universal truth, justice,
and morality… One particularly pernicious outgrowth of natural law
is the idea that states are sovereign equals… Treating states as
equals prevents treating individuals as equals.” (Michael J.
Glennon. Why the Security Council Failed. Foreign Affairs, May/June
2003).

The logic of such an approach is clear, and the position is
absolutely transparent: any national law is archaic and does not
need to be protected. No ‘archaic’ morality (meaning no morality at
all), and thus no law that does not correspond to politics – which
means the liquidation of international and national law per se.

It is amazing how such views are similar to the ideas of Nazi
ideologist Alfred Rosenberg, who in the early 1930s called for
launching “an offensive on the old notions of state and on the
vestiges of the medieval political system” (cited from Hitler Over
Europe? Hitler Against the Soviet Union by Ernst Henri. – Russ. Ed.
Moscow, Russkii Raritet, 2004, p. 82). The world still remembers
the consequences of such an offensive.

In the 21st century, Rosenberg’s racist ideas have been replaced
by an even more refined philosophy of negating the notion of the
sovereign nation state and democracy per se. A book by two Swedes,
Alexander Bard and Jan Sцderqvist, Netocracy: The New Power Elite
and Life After Capitalism, came as a kind of manifesto of this
philosophy. The authors argue that September 11, 2001 will be
considered the date “when information society took over capitalism
as the dominant paradigm.” “Network will replace Man as a great
public project. The curator network [some upper cast of a network
society] will replace the state in playing the role of the supreme
authority and supreme seer,” they believe. “Netiquette [network
etiquette] will replace law and order as the main kinds of Man’s
activities move into the virtual world on a growing scale.
Simultaneously, the authority and influence of the state will come
to naught due to the decrease in tax crimes and the reduction of
national borders. Curators will overtake the state in controlling
morals.” (Quoted from Alexander Bard, Jan Sцderqvist. Netocracy:
The New Power Elite and Life After Capitalism. – Russ. Ed. The
Stockholm School of Economics in St. Petersburg, 2004.)

The Westphalian system has been called into question also by
some international agreements which have delegated large volumes of
state sovereignty to supranational bodies or some entities within
the state.

Examples of the former can be witnessed by the 1992 Maastricht
agreements and the first ‘network’ state – the European Union.
Voices are already being raised that warn the European economy will
remain in a state of ‘semi-stagnation’ “until Europe overcomes the
syndrome of nation state which is rooted in the epoch of the
Westphalian Peace and which still is the basis of international
law; until policymakers in Europe stop considering the British
Parliament, the French National Assembly or the German Bundestag
more important than the European Parliament in Strasbourg” (Georgy
Skorov. Not United Europe. Vedomosti, May 11, 2004). Naturally,
such an approach can reduce the parliamentary activities of the new
EU members to decorative functions.

An example of part of state sovereignty being delegated to
entities within one state is the ‘principle of subsidiariness,’
which provides that problems must be addressed at the lowest
possible level where there are resources and possibilities for
their solution.

Human rights as a goal and means

Even the United Nations is torn between the rigid Westphalian
interpretation of state sovereignty and the growing influence of
international humanitarian law and human rights which work to limit
the authority of state leaders over the citizens of their country.
UN Secretary General Kofi Annan made a statement to this effect
after the war in Kosovo began in 1999 without a UN Security Council
approval.

This dangerous tendency may result in the replacement of
specific political notions, such as ‘state’ and ‘frontier,’ by
judicially vague geographic and socio-economic terms that have no
substantiation in any field of law. Hence, the dire need for an
in-depth analysis of the modern notion of full-scale sovereignty by
the international community of experts in constitutional law. This
analysis must embrace the imperatives of liberal democracy and the
need to ensure all components of strong governments which follow
the rule of law. This is vital for the preservation and
strengthening of sovereign states’ status of world entities in all
its dimensions – political, economic and social.

The issue of terminology is also essential. This is important in
order to revise the aforementioned provision in the UN Charter
concerning the principle of non-interference in matters which are
within the domestic jurisdiction of a sovereign state. Therefore,
it is important to determine what this domestic jurisdiction
comprises and what can be included in the jurisdiction of
supranational bodies, such as the UN. Agreeing on a definition of
jurisdiction cannot be a simple process. It should not be based on
simplified formulas like ‘rogue nations’ or ‘failed states.’ As
follows from international practices of the early 21st century,
such formulas can be used only for superficial political analysis
rather than in defining international legal norms. Simplifications
do not lead to simple and correct solutions, but only serve to
distract from in-depth and comprehensive analysis.

Defining legal terms for situations where state sovereignty may
be restricted could possibly raise more questions than solutions.
This is because such situations can be created artificially.
Various political forces, special services, terrorist and mafia
organizations have gained extensive experience in this respect.

September 11 marked the beginning of large-scale attacks on
national sovereignties and territorial integrity of states, and
encouraged an offensive on another fundamental element of
constitutional law – human rights. This offensive spread across the
whole world – from the U.S. and Europe to Southeast Asia, where
tough antiterrorist laws limiting citizens’ rights were adopted. Of
course, such laws per se do not threaten the constitutional systems
of states that adopt them. Most often, their adoption is an
adequate reaction to growing manifestations of terrorism, organized
crime, drug-trafficking and illegal migration – what is now called
the new challenges and threats to mankind.

But what are the limits in restricting people’s constitutional
rights? Various kinds of recipes are proposed in this respect.
There has even emerged an ideology for renouncing the basic human
rights. In the U.S., for example, well-known scholar Alan
Dershowitz has written a book named Why Terrorism Works:
Understanding the Threat, Responding to the Challenge. Once an
active champion of human rights, he now advocates using the
principle of collective punishment against families, ethnic
minorities and confessional groups of terrorists; resorting to any
kinds of torture; and drastically limiting immigration and the
rights of foreigners, especially those from certain regions of the
world.

Similar views are becoming widespread in other countries as
well, including Russia. They are expressed by scholars and even
politicians who have won the votes of large segments of the
population.

The question is, can the community of constitutional law experts
ignore such tendencies? Where is the point beyond which the
limitation of human rights turns into their negation? In the name
of what and whom are these limitations introduced? How can a state
achieve a balance between national security and the observance of
human rights? For Russia, it is important not to isolate itself
from the global community, which it has already entered, and to
build mutually advantageous relations of openness with it. At the
same time, Russia must know precisely the degree of risks posed by
this openness. I am talking about the risk of dissolving in this
still unshaped world, the danger of absorbing the lawless chaos,
which is intruding into the international political system, and
reproducing it on Russian territory.

The world is changing. It is not growing better or worse – it is
becoming different. The changes taking place in the world
necessitate changing international law to regulate the new
phenomena and processes. It is important that these changes not
overshadow the bottom line in the name of which they are
implemented – Man with all his rights and freedoms.