Debating a Post-Westphalian International Order

by Jayabrata Sarkar

Over the past three-and-a-half centuries, the principles and practices of the Westphalian Treaty (1648) gradually spread from Europe to the rest of the world. The Westphalian order assumed a vital importance for three main reasons. First, it secularised international politics by divorcing it from any particular religious footing, anchoring it instead on the tenets of national interest and reasons of state. Second, it promoted sovereignty, the legal doctrine that no higher authority stands above the state, except that to which the state voluntarily assents. Third, it accepted a conception of international society based on the legal equality of states. All sovereign states possessed the same rights and duties. They had the right to manage matters within their boundaries without outside interference, as well as the duty to abstain from intervening in the domestic affairs of other states. Thus, the Westphalian treaty marks the birth of the nation-state, itself the primary subject of modern international law.

Increasingly, however, scholars and policy-makers are asking whether the Westphalian international order continue to be applicable in the 21st century. Contemporary world is shaped by centripetal and centrifugal forces underlined by the process of globalisation pulling many of the planet’s inhabitants together and fragmenting, pushing people apart. It would be fair to suggest that the world is seemingly becoming more cosmopolitan but at the same time more parochial. Intricate patterns of transnational exchange compete with emotional ties of national identity. Nation-states are enmeshed in a complex network of transnational governance that includes corporations, banks, intergovernmental and non-governmental organisations. In sum, the world today is being shaped by forces that challenge the Westphalian state-centric view of international politics.

The consequences of globalisation are not limited only to undermining the rules of international relations but also contesting the power that lay with the nation-state and raising it to a higher level, which is distant and spread on a global level, separated from ‘nation-state politics’. A nation cannot do anything even when it has taken momentous decisions on policy matters, because, with increasing proportion the ‘operative part’ of it is ‘dependent’ or is the ‘responsibility’ of a variety of non-state actors, organisations and corporations. This trend accelerated in the 1990s with the growing belief that the multi-dimensional processes of globali-sation had the capacity to greatly compromise, if not erode, state sovereignty. As nation-states begin to share more power with non-state entities, international relations is increasingly becoming †two-pronged†, not just state-to-state, but between states on the one hand and sub-national and supra-national actors on the other.

It would not be out of place to suggest that we are entering a ‘phase of global governance’ bringing more uncertainty and ambiguity in an already anarchic international order. The Commission on Global Governance refers to it as constituting “the sum of the many individuals and institutions, public and private, that manage their common affairs†, not only involving intergovernmental relations but “as also involving non-governmental organisations (NGOs), citizens’ movements, multinational corporations, and the global capital market†. “Global governance does not solely refer only to the formal institutions and organisations through which the management of international affairs is or is not sustained†, but includes any “systems of rule at all levels of human activity—from the family to the international organisation—in which the pursuit of goals through the exercise of control has transnational repercussions†. It might also mean “collective actions towards an attempt to establish international institutions and norms to cope with the causes and consequences of adverse supranational, transnational, or national problems†. It is in essence about governing without sovereign authority, engaging in relationships that transcend national frontiers, or, simply put, a “sort of international governance similar to what governments do at home†. Global governance means activities supported by shared values that may result from formal-legal duties and that do not inevitably demand the support of national political power to over-come obstacles and enhance their accomplish-ment. However, the rising importance of governance without government bears witness to a new form of anarchy. It involves not only the absence of a higher statutory organisation, but also encom-passes an extensive disaggregation of regulatory powers prescribed by law so as to allow for much ‘greater flexibility, innovation and experimentation in the development and application’ of newer ways to comprehend disparate nation-states across the world.

A political conceptualisation of a post-Westphalian international order is constitutive of four significant features.

The ‘Agency’ of Transnational Corporation

The increasing importance of the global economy and global interdependence have forced developed states or the “trading states†to concentrate on increasing their share of the world economy. States where capital, labour and technology are mobile, and where they dominate the economy, the urge to increase the market-share has supplanted that of territorial acquisition. A transnational or multinational corporation (TNC), headquartered in one country and operating wholly or partially owned subsidiaries in one or more other countries, has generated controversy because of their “economic and political power†and the mobility and complexity of their operations. With one quarter of the world’s productive assets under their control, TNCs have the potential to affect the functioning of regulatory agencies of national governments compromising their sovereignty. The problem is more serious from the moment when the most important decisions on an economic, financial and developmental level are taken not by states but by “groups of power†—by holding companies, multinationals, lobbies and the so-called “market†—demonstrating how global corpora-tions have the capacity to circumvent and alter the domestic policies of states. While the degree of global economic challenges to national sovereignty varies from country to country and assumes a far more complex dimension in poorer Third World nations, one thing is clear: that fundamentally the Westphalian notion of nation-state’s sovereignty is being hampered and redrawn if it is not in peril. States do not have the requisite power, authority or resources to operate, negotiate or resist the increased “political power†of the TNCs operating at global distances. As states struggle to redesign their sovereignty in a global world, mega-corporations have begun to assume an ever more stateless quality, leaving them less and less accountable to any government anywhere. The problem facing individual governments in a post-industrial global economic order is how to benefit, “generate and maintain a mutually beneficial pattern of cooperation in the face of competing efforts by governments (and non-governmental actors) to manipulate the system for their own benefit?â€

Non-Governmental Organisations

Beginning with the last decade of the 20th century NGOs have substantially proliferated the international relations system. The growth of non-state/non-government actors or organisations (NGOs) have in large part been fuelled by the perceived inability of both domestic and international institutions to respond to the social, economic and political consequences of rapid advances in science and technology, growing economic interdependence and political fragmen-tation.

The motivations that have led to the develop-ment of this trend are political-diplomatic with increased NGO representation to the UN, academic debating on the concept of global civil society, and technical, that is, the internet and the communications systems that favour the rapid dissemination of the information. NGOs of the transnational variant such as Freedom House in the USA, Medecins Sans Frontieres in France, Amnesty International, Greenpeace, Human Rights Watch etc., who often play a pervasive role in global affairs, endorse well-defined goals, mobilising networks, framing issues for public consumption and promoting new norms in their area of activity, such as human rights, minority rights, medical assistance, refugees, environmental protection, disaster relief, humanitarian aid or development assistance, especially in war-torn societies.

The majority of the NGOs aim to indirectly influence the decisions of the state actors to bring changes in policies of govern-ments or international organisations, by means of demonstrations, media pressure, recruitment of political leaders and opinion formers.

An example would demonstrate the significant presence that NGOs have in a post-Westphalia globalised world. NGOs such as Partners in Health, Programme for Appropriate Technology in Health (PATH) Medecins Sans Frontieres, Global Alliance For Improved Nutrition etc. have played a pivotal role in creating a “public health governance†environment by partnering the World Health Organisation to fight epidemics such as SARS, AIDS/HIV that are a grave threat to global health security, livelihood of populations, the functioning of health systems and the stability and growth of economies. In this regard it is necessary to mention the role of China AIDS Roadmap Tactical Support (CHARTS), a UK-China partnership performing an ‘irreplaceable role in China’s arduous battle’ against the disease.

Second, it must be mentioned that with the emergence of NGOs in public health programmes innovative health strategies such as global health governance (GHG), a new kind of a political process and global public goods for health (GPGH), which is a new kind of substantive policy goal, has emerged. GHG involves non-state actors, such as Global Fund seeking to eradicate AIDS, TB, and Malaria, in the governance process of statutory international bodiesas board of directors or as voting members. On the other, NGO sponsored GPGH, are goods and services the consumption of which is non-excludable and non-rival across boundaries and involving countries and people that are different in regional groupings. GPGH does not serve interests of great powers but seeks to produce globally accessible health goods and services.

Global Security and Terrorism

The extent of the debate on global security arose in the early 1990s as a US-led political response to what it viewed as the slow, arduous process of the UN, as the world’s conscience-keeper of peace, to strategise military options in troubled regions. Yet US sponsored defence doctrines, encapsulated in a global security paradigm, pushed ahead for ratification in the UN Security Council, remain a complicated venture, highlighted by the military interventions in Afghanistan, the second war in the Gulf and Iraq under the banner of ‘US backed coalition forces’ or the ‘Coalition of the Willing’ post-9/11 against global terror organisations like the Al-Qaeda. The operation of such ‘military adventurism’, with easier ‘exit policies’ for states unwilling to carry on a long drawn and protracted conflict with terror groups, reinforced the view as the ‘just wars’ went on that there remained a strong ‘transatlantic split’, with different views on the use of military force still existing.

Considering that new non-classical asymmetric transnational threats are in a continuous increase and diversification, with polycentric terror groups operating with hi-tech sophisticated weapons targeting vital communication, defence installations and global business interests, an increasing number of states question the Westphalia regulations which clearly distinguish between what is internal and what is international, finding themselves in the situations to expand their conceptions on security and defence. Certainly, the ‘category’ of traditional military alliances in the post-Cold War period is not ‘dated’ even as new regional or even sub-regional security initiatives and defence regimes are being constructed. On the other hand, the US as the hegemon power is seeking to shape an efficient and reliable global security network ideologically re-ordered to lend clarity and purpose to an unclear global politico-military architecture. But, as mentioned earlier, recent military actions by the US and its allies, particularly in Iraq and Afghanistan, and the phased military ‘pull-out’ that has followed, suggest that the US would have to settle for a far less fulfilment of its approved objective it had initially set out to achieve in those regions.

Thus, US intentions to assume dominance over an ‘anarchic hostile unpredictable world of states’ and to thwart ‘states opposed to freedom and democracy’ cannot be achieved through an exclusive ‘class of military partner states’ pursuing a unilateral political course of action. A comprehensive global political dialogue is required that must adhere to a consensual participatory and democratic representation of states in debating the multi-dimensional nature of security challenges across the world. It is in the light of this development that the UN must be endorsed as an important partner in this collective initiative.

Humanitarian Intervention

Humanitarian intervention began at the same time as the adoption of the UN Charter in 1945, with its firm restatement of the principle of national sovereignty based on power realities, that is, those in power physically are in charge legally. With the Universal Declaration on Human Rights, however, and later the International Covenant on Genocide, to mention only the most prominent international agreements, the countervailing principle of national obligations began to take form. Previously, national governments were responsible only for inter-state obligations, but the new human rights legislation created a set of norms designed to regulate a government’s relations with its own population. The idea began to spread that governments could be judged as legitimate or not in terms of internal, as well as external, behaviour. Internal despotism, as well as external aggression, could cost a given government its right to rule.

At first this principle was used sparingly. The international community castigated the apartheid regime of South Africa and challenged its legitimacy, but only authorised the use of sanctions and embargoes in an effort to change the government’s policies. In the early years of the 1990s, the Security Council authorised the creation of de facto UN trusteeship governments in Cambodia and Somalia, countries where, because governments had collapsed, the Council decided the situation of local populations created humanitarian crises that were also threats to regional, if not international, peace and security. In Haiti, the international community decided or at least acquiesced in the view strongly held by the US Government that the Haitian Government was illegitimate. The United States took the lead in replacing that government by forcible intervention. Most recently, the UN, NATO, and Organisation of Security and Cooperation in Europe (OSCE) introduced in the Balkans a de facto international trusteeship regime in a situation where national sovereignties in conflict existed.

The debate surrounding the “right to humani-tarian intervention†is symptomatic of a tendency to subordinate the institutional. It relates, apparently, to nothing less than the demand for a coherent sequence for the transforming impact of human rights as the grammar of universal convenience. The cast-iron principle of non-interference in the internal affairs of states, the touchstone of traditional international law under the state-centred system, is replaced in the contemporary post-Westphalian order by the right—if not the actual legal duty—to intervene with force to oblige other states to implement basic human rights.

Yet, whatever the post-Westphalian inter-national order may be, it cannot ignore the persistence of some of the mainstays of the Westphalian order. For a start, there is the unequal distribution of power to consider. And within this context it is fitting to ask what is actually new in the discourse on humanitarian intervention. Richard Falk comments: “Are we dealing mainly with a change in discursive reality such that what has mainly changed is language, not behaviour, with major states still retaining on a behavioural level a discretionary option to use force?†The true choice in this area is, as Olivier Corten recalls, “between a ‘new international humanitarian order’, formalised and regulated by the United Nations, and the ‘right to intervene’, on the pretext of removing a ‘perceived unfriendly government’ which may be exercised freely and unilaterally by the most powerful states and whose implementation gives rise to the danger of the emergence of a new world order expressed as a Pax Americana“.

A number of viewpoints abound that speculate about the possible directions of statecraft, diplomacy and governance in an era that has moved beyond the dominant paradigm of international relations of the mid-17th Century—the Westphalian order—with govern-ments hesitantly and gingerly making their way towards newer, untried practices—involving such competitors for power as TNCs and NGOs, borderless states and religiously-based international terrorist security threats—in the early 21st Century. History teaches and demonstrates that power structures, no matter how long-lived, are never immutable and that, slowly or rapidly, such structures change, metamorphose or disappear altogether. The Westphalian legacy did not bequeath us any determined institutional model, it only opened horizons. With the loss of absolute and exclusive state-centeredness, the post-Westphalian era is one of constant innovation and experimentation with notions of power, political structures and institutional dynamics underlined by the losing validity of traditional definitions of power in purely military and political terms.

The unpredictability of a ‘new international order’ or more appropriately its ‘constant making and re-making’ may in a different role bring back the salience of the nation-state as powerful actors constantly pushing for a new regulatory culture by enhancing the structuration of an international system that poses a challenge by being elusive.

What forms would a post-Westphalian world order with its belief in manoeuvrability in an infinitely open space take? Suter has put forward four cogent future possibilities. First, a continuation of the current international order, that is termed as ‘Steady State’; second, greater international cooperation through a strengthened United Nations, as a ‘World State’; third, a continued decline of national governments with economies being run by transnational corporations termed ‘Earth Inc.’; and fourth, a breakdown of nation-states and of transnational corporations resulting in national and international chaos, the ‘Wild State’. Upon reflection, each of the four predictions is capable of realisation.

Readings

1. Anthony Elliot, Contemporary Social Theory: An Introduction, Routledge, USA, 2009, pp. 310-317, 322-328.

2. Michael Vaughan, ‘After Westphalia, whither the nation-state, its people and its governmental institutions’, paper presented at the International Studies Association Asia Pacific Regional Conference on September 29, 2011.

3. S. Tutuianu, Towards Global Justice: Sovereignty in an Interdependent World, Springer, UK,, 2013, pp. 43-44, 59-70.

4. Edward Marks, “From post-Cold War to post-Westphalia†, American Diplomacy,URL: (http://www.unc.edu/depts/diplomat/AD_Issues/amdipl_14/marks_westph.html) (available from November 18, 2014)

5. Carlo Bordoni, “A Crisis of the State: End of the post-Westphalian model†, Social Europe Journal, URL: (http://www.social-europe.eu/2013/02/a-crisis-of-the-state-the-end-of-post-westphalian-model) (available from December 4, 2014)

6. Jose Manuel Pureza, “Towards a post-Westphalian Internationalism†, Eurozine, URL: (http://www.eurozine. com/articles/2002-04-26-pureza-en.html) (available from November 21, 2014)

7. D.P. Fidler, 2003, “SARS: Political pathology of the first post-Westphalian pathogen†, Journal of Law, Medicine and Ethics, vol. 31, Issue 4, December, pp. 485-505.

Dr Jayabrata Sarkar is an Associate Professor, Department of Political Science, Deshbandhu College, New Delhi.