An Apologia of the Westphalian System

10 august 2004

Valery Zorkin

Resume: The Westphalian system has long been the target of numerous attacks, but the most serious threat to its existence – and thus to the foundations of the constitutional systems of sovereign states – has emerged at the beginning of the 21st century, especially after September 11, 2001.

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.

Last updated 10 august 2004, 11:19

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