June 17, 2021

T-Break

Let'S Talk Law

Beyond the Nation-State | Boston Review

A map of the Holy Roman Empire. Image: Wikimedia

Sovereign states have been mythologized as the natural unit of political order. History shows how new they are—and how we can think beyond them.

One of the most commonly encountered claims about international politics today concerns the transition from a “Westphalian” to a “post-Westphalian” era. Writers across a wide range of media and academic sources use this framing to ask crucial questions about the way forward: What are the human rights responsibilities of transnational corporations? How will warfare unfold in the twenty-first century? Are international organizations such as the United Nations and the European Union becoming increasingly authoritarian?

At this moment of global crisis, we must imagine ways of organizing the world that do not involve either nation-states or organizations of nation-states.

The Westphalian order refers to the conception of global politics as a system of independent sovereign states, all of which are equal to each other under law. The most popular story about this political system traces its birth to the Peace of Westphalia in 1648, follows its strengthening in Europe and gradual expansion worldwide, and finally, near the end of the twentieth century, begins to identify signs of its imminent decline. On this view, much of the power that states once possessed has been redistributed to a variety of non-state institutions and organizations—from well-known international organizations such as the UN, the EU, and the African Union to violent non-state actors such as ISIS, Boko Haram, and the Taliban along with corporations with global economic influence such as Facebook, Google, and Amazon. This situation, the story often goes, will result in an international political order that resembles medieval Europe more than the global political system of the twentieth century.

Commentators disagree about the significance of this “post-Westphalian” order, and whether it is desirable for international organizations to intervene in states’ affairs is on its own a great source of debate. Yet there is widespread agreement about the events of the story that have taken us to the present moment. The Westphalian conceit, in short, forms the descriptive foundation of dominant analyses of global politics.

The problem with this story is that a lot of it is spectacularly wrong. Over the last two decades, scholars working on the history of the global order have painstakingly shown the complete mismatch between the story of Westphalia and the historical evidence. The nation-state is not so old as we are often told, nor has it come to be quite so naturally. Getting this history right means telling a different story about where our international political order has come from—which in turn points the way to an alternative future.

These issues are especially urgent today. The post–Cold War period has indeed seen the growth of non-state organizations, but in more recent years a range of right-wing leaders has only buttressed the influence of the nation-state. The spectacular resurgence of nationalism—from Brexit and Donald Trump to the ascendence of Narendra Modi, Jair Bolsonaro, and Viktor Orbán—has led some to speculate that the hour of the Westphalian order may not have passed after all, while others stick to their guns and suggest that this phenomenon is a mere spasm of a dying system. Getting the history of the states-system right has critical implications for both of these positions.

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Generations of international relations students have absorbed the idea of the 1648 Peace of Westphalia as a pan-European charter that created the political structure that now spans the entire globe: a system of legally (if not materially) equal sovereign states. Along with this political structure, this story goes, came other important features, from the doctrine of non-intervention, respect of territorial integrity, and religious tolerance to the enshrinement of the concept of the balance of power and the rise of multilateral European diplomacy. In this light, the Peace of Westphalia constitutes not just a chronological benchmark, but a sort of anchor for our modern world. With Westphalia, Europe broke into political modernity and provided a model for the rest of the world.

The nation-state is not so old as we are often told, nor has it come to be quite so naturally.

Over the last few decades, scholars working on the history of international order—in a variety of disciplines, including global history, international relations, and international law—have shown that this traditional account is not only false but diametrically opposed to historical reality. In fact, the single most famous debunking exercise, Andreas Osiander’s “Sovereignty, International Relations and the Westphalia Myth,” turns twenty this year. As these scholars emphasize, the treaties of the Peace of Westphalia, which put an end to the Thirty Years’ War (1618–1648) that devastated Europe, makes no mention of state sovereignty or of non-intervention, let alone a desire to reorganize the European political system. Far from enshrining the principle of religious tolerance known as cuius regio eius religio (“whose realm, his religion”) that had been put in place with the 1555 Peace of Augsburg, these treaties actually overturned it, finding that it had been the cause of instability. The treaties also make no mention of the concept of the balance of power. In fact, the Peace of Westphalia strengthened a system of relations that was precisely not based on the concept of the sovereign state but instead on a reassertion of the Holy Roman Empire’s complex jurisdictional arrangements (landeshoheit), which allowed autonomous political units to form a broader conglomerate (the “empire”) without a central government.  

Part of the current confusion stems from lumping together all the major peace treaties signed in 1648 under one name. What we have come to call the Peace of Westphalia actually designates two treaties: signed between May and October 1648, they were agreements between the Holy Roman Empire and its two main opponents, France (the Treaty of Münster) and Sweden (the Treaty of Osnabrück). Each treaty mostly addressed the internal affairs of the Holy Roman Empire and smaller bilateral exchanges of territory with France and with Sweden. (In addition to these two agreements there was also another treaty of Münster, signed in January, between the Spanish and the Dutch to put an end to the Eighty Years’ War, but this earlier agreement had almost no substantive link with the treaties of the Holy Roman Empire.)

Beyond that, how did the misleading story become so popular? The treaties were only properly mythologized in the late eighteenth and early nineteenth centuries, when European historians turned to the early modern period in order to craft stories that served their own worldview. As scholars such as Richard Devetak and Edward Keene have explained, conservative historians of the period—particularly the Göttingen-based German historical school—were keen to depict the pre-1789 European continent as an orderly system of states, characterized by restraint and mutual respect, that had come to be threatened by Napoleon’s expansionist imperialism. This reinvention of early modern European history was part of a larger and now well-studied trend that sought to make both the rise of the states-system and of global European power seem like a linear, inevitable, and laudable process. Europeans, the story went, were uniquely modern in their political organization, and they would bring this gift to the rest of the world.

As Osiander explains, the Peace of Westphalia came to be given pride of place in this new historical narrative by means of recycled seventeenth-century propaganda. Looking for a story of states fighting for their sovereignty against imperial domination, nineteenth-century historians found exactly what they needed in the anti-Habsburg fabrications that had been disseminated by the French and Swedish crowns during the Thirty Years’ War.

Twentieth-century historians pressed this narrative further still. As is so often the case with foundational myths, one article seems to have been especially influential, particularly in the fields of international relations and international law: Leo Gross’s essay “The Peace of Westphalia: 1648–1948,” published in 1948 in the American Journal of International Law. Canonized as “timeless” and “seminal” at the time, the article gave meaning to the emerging postwar order. By comparing the 1945 UN Charter to the Peace of Westphalia, Gross rehashed a story about treaties for freedom, equality, non-intervention, and all the rest of the alleged virtues for reinventing national sovereignty. He did note that the text of the treaties did not appear to reflect these ideas, but he appealed to general principles that, he assumed, must have underpinned the agreements. Those who went on to cite him took myth-building a step further: in the best case, they cherry-picked clauses about the internal affairs of the Holy Roman Empire and brandished them as foundations for a new pan-European order. More often, they simply sidestepped the gap between the story of Westphalia and the content of the treaties altogether.

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I have come to the conclusion that this myth has endured primarily because debunking efforts have failed to offer a clear and compelling alternative. The solution to the Westphalia debacle, then, would seem to lie in putting forward an alternative narrative grounded in greater historical accuracy, one that reflects the much more complicated process through which the modern international order came about.

One better story—itself incomplete, but still an improvement—goes like this. Until the nineteenth century, the international order was made up of a patchwork of polities. Although a distinction is often made between the European continent and the rest of the world, recent research has reminded us that European polities also remained remarkably heterogeneous until the nineteenth century. While some of these were sovereign states, others included composite formations such as the Holy Roman Empire and the Polish-Lithuanian Commonwealth, within which sovereignty was divided in very complex ways.

States enjoy far more rights than any other collectivity—ranging from indigenous peoples to transnational social movements—simply because they are states. Why should that be?

Indeed much of what we take for granted as the normal way of organizing the international system is of comparatively recent vintage. Sovereign statehood only became the default within Europe in the nineteenth century, with entities like the Holy Roman Empire gradually giving way to sovereign states like Germany. While often overlooked in this regard, Latin America also transitioned into a system of sovereign states during that period as a result of its successive anti-colonial revolutions. This system then became the default of the international order through decolonization in the 1950s through the 1970s, when independent sovereign states replaced empires worldwide. Throughout this transition various alternatives were considered, including—up until the 1950s—forms of federations and confederations that have since been largely forgotten. Over the past several decades, the state has not only triumphed as the only legitimate unit of the international system, but it has also rewired our collective imagination into the belief that this has been the normal way of doing things since 1648.

As late as 1800, Europe east of the French border looked nothing like its contemporary iteration. As historian Peter H. Wilson describes in his recent book Heart of Europe (2020), the Holy Roman Empire, long snubbed by historians of the nation-state, had been in existence for a thousand years at that point; at its peak it had occupied a third of continental Europe. It would hold on for six more years, until its dissolution under the strain of Napoleonic invasions and its temporary replacement with the French-dominated Confederation of the Rhine (1806–1813) and then the German Confederation (1815–1866).

The latter mirrored the Holy Roman Empire in many ways; it hardly looked like a nation-state at all. Much of its territory still overlapped—in so-called “pre-modern” fashion—with the territory of the Habsburg monarchy, another composite state that began its centralization process earlier than the Holy Roman Empire but did not look much like a nation-state either until the late nineteenth century. It solidified into the Austrian empire (1804–1867) and then the Austro-Hungarian empire (1867–1918), but the 1867 power-sharing deal granted Hungary considerable autonomy and essentially allowed it to run its own mini-empire. Meanwhile, to the south, what we think of as modern-day Italy was still a patchwork of kingdoms (Sardinia, the Two Siciles, Lombardy-Venetia under the Austrian Crown), Duchies (including Parma, Modena, and Tuscany), and Papal States, while territory further east was ruled by the Ottoman Empire. The map of Europe did not begin to look more like a collection of nation-states until the middle of the nineteenth century: Belgium and Greece appeared in 1830, while Italian and German unification were completed in 1871.

We are accustomed to thinking of Europe as the first historical instance of a full-blown system of sovereign states, but Latin America actually moved toward that form of political organization at just about the same time. After three centuries of imperial domination, the region saw a complete redrawing of its political geography in the wake of the Atlantic Revolutions of the late eighteenth and early nineteenth century. Following in the footsteps of the United States (1776) and Haiti (1804), it witnessed a series of wars of independence which, by 1826 and with only a few exceptions, had essentially booted out the Spanish and Portuguese empires. Of course, Britain promptly gained control of trade in the region through an aggressive combination of diplomatic and economic measures often referred to as “informal empire,” but its interactions were now with formally sovereign states.

Over the remainder of the century, the sovereign federative structures that had emerged in the aftermath of independence—Gran Colombia (1819–1831), the Federal Republic of Central America (1823–1841), and the United Provinces of the Río de la Plata (1810–1831) collapsed through bloody civil wars that lasted for decades, pitting regions against centralized governments and including multiple attempts to reconstitute these larger political conglomerates. Thus, much as with Western Europe, the region did not stabilize into a system of nation-states that looks like its contemporary iteration until the end of the nineteenth century. It now seems possible to tell a relatively similar story about North America, as in historian Rachel St John’s ongoing project, The Imagined States of America: The Unmanifest History of Nineteenth-century North America.

Empires, of course, continued to thrive despite the growing popularity of nation-states. Until World War II the world was still dominated by empires and the heterogeneous structures of political authority they had created. Once decolonization took off after 1945, the nation-state was not the only option on the table. In Worldmaking after Empire (2019), Adom Getachew describes anglophone Africa’s “federal moment,” when the leaders of various independence movements on the continent discussed the possibility of organizing a regional Union of African States and, in the Caribbean, a West Indian Federation. Turning toward the United States as an example of a successful postimperial federation, they toyed with the idea of a centralized federative state but eventually found themselves disagreeing intractably with those who preferred a looser federation that left more sovereign decision-making powers in the hands of individual states.

The comparative stability of the post-1648 period may have had more to do with a diversity of polities than with the putative emergence of a system of sovereign states.

In the case of francophone African colonies, the departure from the nation-state model was even more radical. As Frederick Cooper describes in Citizenship between Empire and Nation (2014), the ultimate triumph of the nation-state in this case was the result of disagreements between the French government in the metropole and African leaders and thinkers driving the decolonization process—from Mamadou Dia, the first prime minister of Senegal, to Léopold Sédar Senghor, one of the major theoreticians of Négritude. Much of the conversation had originally aimed at political formations that were neither empires nor nation-states but federations and confederations that imagined citizenship as a bundle of rights that did not have to overlap neatly with nationhood. The idea involved a federation of nations, not federation as nation, as in the case of the United States. Each polity would have its own government and identity, but they would act together and provide a shared form of citizenship within a multinational state.

This form of “antinationalist anticolonialism” eventually ran afoul of the French government’s unwillingness to distribute the metropole’s resources amongst a widened network of citizens. Yet the fact that it was seriously considered should give us pause. Of course, in the context of decolonization, the triumph of the nation-state represented a final victory for colonized peoples against their long-time oppressors. But it also disconnected regions with a shared history, and it created its own patterns of oppression, particularly for those who were denied a state of their own: indigenous peoples, stateless nations, minorities. The crushing power of state-building enterprises, which nearly wiped out entire native populations in settler colonies like the United States and Australia, was also felt in cases where state-building became a weapon against empire. In those cases, it may well have been the weak who rightfully won, but they sometimes did so at the expense of the weakest.

Could it have been different? Counterfactuals are a dangerous game in historical thinking. But what is clear is that a mere seventy years ago, what we now consider to be the self-evident way of organizing political communities was still just one of the options available to our collective imagination.

• • •

This different story of how the modern international order came to be clearly has serious consequences for how we think about the past. It has equally serious consequences for how we think about the present.

First, it forces us to rethink the sources of international stability. The conventional narrative associates international order with the existence of a system of sovereign states, but the alternative story suggests that the post-1648 period was characterized by the resilience of a diversity of polities. In the case of the European continent, the most obvious such polity was the vast Holy Roman Empire, which continued to experiment with complex arrangements of layered sovereignty until its collapse in 1806. The comparative stability of the post-1648 period may therefore have had more to do with the continued diversity of polities on the continent than with the putative emergence of a homogenous system of sovereign states. Some scholars have looked beyond Europe’s borders and already noted such patterns of stability through diverse forms of political organization in other regions of global empire-building, such as Andrew Phillips and J. C. Sharman in their study of the Indian Ocean, International Order in Diversity (2015). This period thus suggests that an international system in which power is shared among different kinds of actors might in fact be relatively stable.

The myth of Westphalia tends to obliterate any historical evidence that does not make the states-system sound like a nearly 400-year-old historical inevitability.

Second, taking the alternative story seriously forces us to rethink how we talk about the influence of non-state actors in the present. To take just one example, even the most powerful contemporary multinational corporations—Facebook, Google, Amazon, Apple, and the rest—are drastically more limited in their formal powers than were the famous mercantile companies who were central actors in the international order until the mid-nineteenth century. The two largest, the British and the Dutch East India Companies, founded in 1600 and 1602 respectively, amassed spectacular amounts of power over their two-hundred-year existence, becoming the primary engine of European imperial expansion. While these companies started off as merchant enterprises seeking to get in on Asia’s lucrative trading network, they gradually turned into much more ambitious endeavors and grew from their original outposts in India and Indonesia into full-on polities of their own. They were, as various scholars now argue, “company-states”—hybrid public-private actors that were legally entitled to rule over subjects, mint money, and wage wars. From this perspective, contemporary non-state actors are still relatively weak compared to states, who still monopolize far more formal power than all other actors in the international system.

This is not to say that the growing power of multinational corporations is not cause for concern; it certainly is. The point is that in our effort to limit the harmful impact of these corporations, we should be careful not to suggest that the culprit is an unprecedented weakening of the state and thus that the solution is to expand state power. A more accurate form of historical perspective provides an impetus to discuss the opportunities that may lie in exploring alternative governance arrangements, both domestically and internationally.

Third, the myth of Westphalia tends to obliterate any historical evidence that does not make the states-system sound like a nearly 400-year-old historical inevitability. States certainly were important after 1648, but so were a host of other actors, from mercantile companies to semi-sovereign polities and all sorts of empires more or less formally structured. This system only truly began to unravel in the nineteenth century, with many of its features persisting well into the twentieth. Viewed through this lens, the so-called “Westphalian order” begins to look much more like an anomaly than the status quo.

To think about how decentering the state might matter, consider one historical example. Only sixty years ago, the challenges that colonized peoples faced in their struggle for freedom were exacerbated by the fact that, since they were not states themselves, they had almost no international legal rights against the states they sought to defy. Most importantly, they were not allowed to use force against their occupiers; if they did so, both domestic and international law considered them to be criminals rather than combatants. This applied regardless of the legitimacy of their cause, or of their ability to organize themselves into a complex network of national liberation movements. While in the majority of cases, they eventually managed to achieve freedom and found a place at the global diplomatic table through the formation of their own independent states, they would have found a much less obstructed path to freedom if early on they had enjoyed a baseline of rights in their capacity as collective actors.

• • •

Engaging with this history makes the current centrality of the states-system as a basis for organizing the globe look recent and in fairly good shape, not centuries-old and on the verge of collapse. The layering of sovereignty within polities like the EU, the rising power of corporations, the prominence of violent groups not considered “states”—none of these developments is fundamentally at odds with how international relations operated over the past 373 years. What is truly new, from a longue durée perspective, is the triumph of the state worldwide, and our inability to think of ways of organizing the world that do not involve either nation-states or organizations of nation-states.

A recent interview with political scientist Francis Fukuyama in Noema is telling in this regard. Asked whether the nation-state is now inadequate in the face of pressing global problems, Fukuyama acknowledges that such “challenges cannot be solved by individual states.” But, he goes on, “How many of them could be solved by better cooperation among existing states?” As the magazine sums up this line of thought: “In the face of planetary challenges the nation-state is both the problem and the solution.” Even thinkers in tune with limitations of the nation-state cannot seem to free themselves from the statist straitjacket of the contemporary political imagination. Debates about state-based supranational institutions likewise fall along a remarkably narrow spectrum: more power to states, or more power to state-based international organizations? At this moment of global crisis, encompassing COVID-19 and the climate emergency, we urgently need to find alternatives to our stale visions for reform.

The time is thus ripe to harness a more accurate understanding of the past to our efforts to imagine a less destructive future.

Much more is a stake in our talk about international order, then, than quibbles over historical periodization. Misrepresenting the history of the states-system plays into the hands of nationalist strongmen, who depict themselves as saving the world from a descent into stateless anarchy, controlled by globalist corporations who couldn’t care less about national allegiance. More broadly, getting this history right means having the right conversations. Giving power to actors other than states is not always a good idea, but we must resist the false choice between resurgent nationalism on the one hand and the triumph of undemocratic entities on the other.

The time is thus ripe to harness a more accurate understanding of the past to our efforts to imagine a less destructive future. Having an alternative narrative of our trajectory does not provide easy solutions, but it does open the way to envisioning an international order that could make space for a greater diversity of polities and restore some balance between the rights of states and the rights of other collectivities. Today the norm is that states enjoy far more rights than any other collectivity—ranging from indigenous peoples to transnational social movements—simply because they are states. But it is not at all clear why this should be the only framework available to our collective imagination, particularly if its legitimacy rests on a history of the states-system that has long been debunked. The myth of Westphalia has ultimately inflicted serious damage to our ability to think creatively about how to tackle the pressing global challenges that transcend both borders and levels of governmental organization, ranging from neighborhoods, villages, and towns all the way up to international institutions.

Now that our time for imagining more sustainable ways of organizing our world is starting visibly to run out, we must put that myth to bed for good.