Title: Westphalia, Authority, and International Society
Author: Daniel Philpott
Publication: Political Studies, Vol. 47, No. 3 (1999)
The paper seeks to develop the concept of the constitution of international society so as to make sense of the changes that are taking place — especially of the alleged erosion of sovereignty — and also to enable comparisons with previous changes in international authority.
The Constitution of International Society
A constitution of international society is a ‘set of norms’ mutually agreed upon by the members of the society that define the holders of authority and their prerogatives, specifically in answer to who the legitimate polities are, how to become one of these polities, and what the basic prerogatives of these polities are. Constitutions of international society are both legitimate and practiced.
(The constitutions) are authors of orders, denoting the polities who carry on war and business, and the contours of their powers; they are etchers of blueprints, resembling the rules of baseball, which define the nine players, their strictures and allowances, the meaning and regulation of pitches, outs, strikes, steals, and balls.
Q. Are these ‘constitutions’ really constitutions? I mean, they are rarely fully developed nor do they command the requisite respect.
Ans. Yes. Of course, unlike domestic ‘constitutions’, they are neither comprehensive nor unified. In fact, they are “strewn among separate treaties, conventions and customary law”. But they are constitutional in that they define — internationally — the legislative, executive and judicial powers of polities.
Also, it is the international constitutions that define the state as a polity within the society and give it its internal and external realms. They provide the framework that gives identity to the states
Q. But aren’t international constitutions, since they are “strewn amongst separate treaties”, foreign to idealistic design? I mean, constitutions are, really, designed with, always, certain ideals in mind.
Ans. They don’t have to be ‘designed’ in the sense that national constitutions are. The insistence on a constitution of international society is not an insistence on some grand idealistic contraption nor an insistence on the cause of its genesis but instead an insistence on something taken for granted, like the fact of sovereignty — a form of constitutional authority — which is assumed in all international transactions.
International societies establish common rules and institutions for the conduct of their relations. And those rules and institutions that define the basic constitutional authority of the member polities make up the constitution.
The Three Faces of Authority
The First Face of Authority
The first face defines the legitimate polities (states, kingdoms, the Caliphate, the Papacy) of an international society. This recognition is, in the present day, accorded only to sovereign states.
Sovereignty is supreme authority within a territory. This broad yet discrete formulation captures the elements of sovereignty: supremacy, legitimacy and territoriality.
The variants of sovereignty can be understood based on three attendant categories. First, by virtue of who wields the sovereign power: namely, an individual, a triumvirate, a committee, the General Will etc. Second, by virtue of the complementary pair of internal and external sovereignty which necessarily co-exist. And third, by virtue of the differentiation between absolute and non-absolute: France may be supreme in defence but is not in trade.
The Second Face of Authority
This face defines the rules for membership: who can join and attain the status of a legitimate polity in the society. This face includes as well as excludes. It lays down the privileges accorded to its members and the terms of engagement with outsiders.
The Third Face of Authority
The third face defines the fundamental powers of the members. While this face is not necessary for the polity’s legitimacy, it nonetheless exists prior to entering into membership.
But What Exactly are Constitutions of International Society?
The ‘set of norms’ (see the first sentence under the section ‘The Constitution of International Society’) comprising constitutions of international society consists of rules which are ‘viewed as obligatory by the broad majority of people living under them and which are usually customarily practiced’.
Two points emerge: (i) these rules are legitimate — decolonisation was legitimated in a 1960 UN Declaration — and (ii) they are adhered to — attendant upon the UN Declaration on colonies was an actual freeing of colonies.
This dual characteristic of legitimacy and practice mirror the de jure and de facto aspects of sovereignty.
Constitutions are not only about power. Those who trumpet the downfall of sovereignty view it as coercive power i.e. they concentrate on its de facto aspect. This approach is mistaken because sovereignty is not merely a function of power. Firstly, sovereignty depends upon recognition by other states. Secondly, sovereignty is not affected by variances in power — Burundi is no less sovereign than the US despite their power differential. And thirdly, equating sovereignty with power would make it (sovereignty) redundant and meaningless.
Constitutions are not agreements between already constituted polities that constrain their actions but do not cede any constitutional authority. They are also not agreements between only two or a few polities which fail short of revising an international constitution.
A Brief History of Constitutions of International Society in the West
Towards A System of Sovereign States
The Revolution at Westphalia
Westphalia was a consolidation of the elements of sovereign statehood that had existed for centuries. It defined the state as the legitimate European polity — sovereignty’s first face — whose sovereignty was indicated in its (Westphalia’s) separate provisions and in the practice of these provisions. It also laid down the conditions of stable government, control within their territory, ability to negotiate and fulfil treaties and a Christian culture. It led to, although not explicitly provided for, non-intervention becoming the expected state practice.
Westphalia in short revised all three faces of authority and remains the most significant revolution in sovereignty to date.
Westphalian Europe and the Rest of the World
The Westphalian system was extended over the course of the next three centuries all over Europe. Polities outside Europe however were either rivals and trading partners — China in the 17th– and 18th-centuries and the Ottoman Empire up to the 19th-century, less than equal but not fully subordinate — China and the Ottoman Empire in late 19th– and early 20th-century, or completely subordinated — colonies around the world.
These categories of polities existed in different proportions at different times in the three centuries after Westphalia. Overtime, rivals declined and colonies multiplied.
Also, the rules of membership — the second face of sovereignty — evolved. Secularisation made Christian culture unnecessary but others like guarantee of basic rights, capacity for defence and adherence to international law emerged.
The Rise of Colonial Independence
After 1960, the criteria for becoming a state was widened and weakened. Colonies — although nations or tribes within colonies were left out — became independent riding on the promises of self-determination made by the UN. This revision of the second face of authority reveals its significance in the sheer scale of its impact as 78 colonies became sovereign and entered the international society between 1955 and 1970.
Away from a System of Sovereign States
The move away from a system of sovereign states entails a circumscription of sovereign statehood and happens through the following major revolutions — minority treaties, European integration and internationally sanctioned intervention.
This is the signing of treaties by states to guarantee protection of ethnic, religious and racial minorities in their territories as a condition for recognition by other states. This revised the second and third faces of authority.
The Return of European Unity
The creation of the European Coal and Steel Company in 1950, and its subsequent expansion into the European Union, redefined all three faces of authority. A new political authority other than the state — the EU — has become legitimate. The EU constitution prescribes definite criteria for admission. It also carefully distributes decision-making powers on different matters among the states and the Union’s many committees.
Internationally Sanctioned Intervention
The increasing use of military force by the UN or other organisations against a state to remedy an injustice, to end a civil war, to enforce democratic elections or for humanitarian causes without the consent of the target state has significantly revised the norm of non-intervention developed after Westphalia. This revision has significant implications for the third face of authority in that the states are no longer truly sovereign in their prerogatives.
Other Circumscriptions of Sovereignty
Minor constitutional revisions like the Holy Alliance during the Napoleonic Wars, the struggles for self-determination outside the colonial context and the European Convention on Human Rights (1953) have proven significant in their normative influence if not in their actual impacts on state actions.
The concept of the constitution of international society offers us a way of characterizing international relations, not by its distribution of power, not by its economic openness, not by its mechanisms for resolving conflict or maintaining peace, but by its very configuration of constitutional authority.
The expansion of the EU and the increasing incidence of intervention have rewritten long-standing features of Westphalia. But the EU is geographically bounded and its reach is most visible only in the economic domain leaving other affairs to state authority. The UNSC, especially thanks to the veto of its permanent members, mitigates reckless intervention. Westphalia’s enduring strength is thus clear.
Where the state's authority is challenged, it is challenged significantly, but the challenge extends only to certain matters in certain places.