Don't Blame Westphalia!

Comment is Free on the Guardian

24 October 2007

Today, October 24, is the anniversary of the signing of the Treaty of Westphalia in 1648, or at least the final part of it signed in Munster. When quoted nowadays the treaty is seen as the bedrock of the modern system of independent states, free of feudal entanglements and thus from foreign interference in internal affairs. Most often, it is the foundation of every thuggish ruler's claim: "T'ain't nobody's business what I do" to my own subjects.

Like many others I've pontificated about the Westphalian system and state sovereignty, and in fact I have usually pontificated against it. So to celebrate its birthday, I went to read it. The only version that seems generally available is a translation from Latin into English, probably at the beginning of the 18th century. And the amazing thing is the complete lack of direct quotes about sovereignty. Apart from being an extended suicide note for the Holy Roman Empire, there are few larger principles to be drawn from its text. Even the bits about religious toleration were basically reiterations of the Treaty of Augsburg, and it specifically allowed the Hapsburgs to keep the Inquisition burning away in their own lands outside the empire.

It had taken 30 years of war for the emerging sovereign states to "have form'd thoughts of an universal peace". The result of years of negotiations, the treaty is a detailed and highly pragmatic settlement of the myriad local and regional squabbles that became conflated into what was allegedly a religious war. Like current so-called clashes of civilisation and religions, the mere technical detail that the very Catholic "the most puissant prince, and most Christian king of France and Navarre," was the ally of protestant Swedish kingdom against the Holy Roman Hapsburgs.

Effectively, the treaty gave legal as well as practical independence to the constituent states of the Holy Roman Empire, allowing them to sign treaties and wage wars, with the oft-to-be ignored exception that they should not bear arms against the emperor. "Above all, it shall be free perpetually to each of the states of the empire, to make alliances with strangers for their preservation and safety; provided, nevertheless, such alliances be not against the emperor, and the empire". It also warned against interference in the internal affairs of these statelets.

But of whence their sovereignty came, the treaty saith nought. It deals with various claims and counterclaims of princes, marquises, landgraves, bishops, emperors, dukes and electors, but the "we the peoples," of the UN charter are nowhere to be seen. A state here is coterminous with its sovereign, with none of the 19th century romantic notions of organic nations with one people, one country and one government.

The "Westphalian system" is really a later interpretation of the results. Those "thoughts of an universal peace," did not last as long as the 30 year torrent of blood and fire it took to form them, although until the French revolutionary wars, the squabbles tended more to be conflicts between armies rather than the unbridled savagery of the 30 year war itself.

Replacing the nominal Holy Roman Empire (which as Voltaire pointed out, was none of the preceding) we now have the United Nations, which often appears to be misnomer as well. According to the charter, all nations have, "to save succeeding generations from the scourge of war," surrendered their sovereign "Westphalian" right to wage war, except in self defence.

In an odd way, countless millions of dead notwithstanding, the UN has succeeded in preserving the Westphalian dream. The only outright invasion and annexation, the Iraqi invasion of Kuwait, was over-turned. Usually invaders are quick to set up regimes to legitimise their efforts retrospectively: Czechoslovakia, Hungary, Panama, Grenada, Cambodia, Uganda and Iraq, to name but a few.

But while Westphalia enjoined freedom of religion, its modern invokers want to defend the presumed rights of the modern equivalent of those landgraves, marquises, princes and counts, to massacre their own people with impunity. Burmese, Sudanese and Serbian regimes have all enjoyed the support of a motley band of self-interested regimes and "anti-imperialist" orators and commentators.

Two years ago, the United Nations tried to square the circle of avoiding wars between states while fulfilling its pledges to "us the peoples," by adopting the "right to protect", setting out the principle of humanitarian intervention in the case of "national authorities manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity". Not one of the 191 member states voted against this effective rescinding of one of the alleged bedrock principles of Westphalia. Perhaps they were sadly confident that the veto-holders in the security council were only kidding, and would always protect their client genocidaires when the votes were taken. After all, every veto holder had attacked another country in defiance of the charter, but no one had ever disputed the alleged Westphalian right of each anointed thug to mistreat his "own" people.

It took almost 300 years for the protection of state sovereignty part to become mildly effective with the UN charter. The people in Burma and Darfur should not have to wait a century for the right to protect to be implemented.