Westphalia did not, of course, generate the modern understanding of political sovereignty ex nihilo(Philpott, 2010). Indeed, some deny that it can even be understood as having so much as midwifed the doctrine.
The two respects in which Westphalia is believed by some to have legally secured the triumph of sovereign states:
a. The emergence of states as the sole form of “substantive constitutional authority in Europe, their authority no longer seriously challenged by the Holy Roman Empire”(Philpott, 2010). This included Switzerland, the Netherlands, as well as the German states of the Holy Roman Empire(Philpott, 2010). This devastating blow to the temporal powers of the Roman Catholic Church such that they no longer posed a serious threat to sovereign states prompted Pope Innocent X to condemn the treaties as “null, void, invalid, iniquitous, unjust, damnable, reprobate, inane, empty of meaning and effect for all time”(Philpott, 2010).
brought an end to intervention in matters of religion, up to then the most commonly practiced abridgment of sovereign prerogatives. After decades of armed contestation, the design of the Peace of Augsburg was finally consolidated, not in the exact form in 1555, but effectively establishing the authority of princes and kings over religion. In ensuing decades, no European state would fight to affect the religious governance of another state, this in stark contrast to the previous 130 years, when wars of religion sundered Europe. As the sovereign states system became more generalized in ensuing decades, this proscription of intervention would become more generalized, too, evolving into a foundational norm of the international system(Philpott, 2010).
Over the next 300 years, this aggregate of sovereign states gradually dominated Europe. Europe’s colonial empires likewise declined when
the state become the only form of polity ever to cover the entire land surface of the globe. Today, norms of sovereignty are enshrined in the Charter of the United Nations, whose article 2(4) prohibits attacks on “political independence and territorial integrity,” and whose Article 2(7) sharply restricts intervention(Philpott, 2010).
While political philosophers like Dante and Marsilius of Padua had anticipated the modern understanding of political sovereignty when they “advocated a separation of temporal and religious powers that would be achieved through a transfer of prerogatives into a temporal ruler’s hands”(Philpott, 2010), it was not until the system of sovereign states embodying the contemporaneous understanding of political sovereignty came to gradually occupy all of Europe(Philpott, 2010).
Enter Machiavelli – Machiavelli denied that the ruler was bound by any moral laws whatsoever and believed that whatever means the ruler had to take to accomplish his ends, were justified(Philpott, 2010). The end which Machiavelli had in mind was the well-ordering and preservation of the state, and morality could not get in the ruler’s way if and when it became necessary, in his eyes, to violate such a moral order(Philpott, 2010).
Martin Luther’s political likewise constituted an important advance on the modern understanding of political sovereignty(Philpott, 2010). He believed that the Roman Catholic Church ought to be divested of its temporal powers because he viewed the Church, not as a visible organization fit to exercise such powers, but as an invisible organism consisting of the sum total of the elect predestined to salvation. The temporal powers of the Roman Catholic Church were thus seen as null and void(Philpott, 2010).
More importantly for the question of the modern understanding of political sovereignty was the fact that the Holy Roman Emperor was no longer just in enforcing adherence to the Roman Catholic doctrine or membership in the Church(Philpott, 2010). Territorial princes subsequently filled in the void of authority left in the wake of Luther’s repudiation of the authority of the Roman Catholic Church(Philpott, 2010). Thus, an advance in Europe was made concerning the tendency to understand political sovereignty in terms of territorial supremacy, as opposed to the claims of extra-territorial authority hitherto exercised by the Roman Catholic Church(Philpott, 2010).
This constituted the genesis of what in contemporary Reformed theology is now referred to as the “Two Kingdoms” debate. On the one hand, there is a purely spiritual government according to which God deals with his saints in purely non-temporal terms(Philpott, 2010). On the other hand, there is the civil government which is in charge of secular society, in which the civil powers rule through coercion and legislation. Princes who accepted this doctrine, throwing off the shackles of the Roman Catholic Church that had previously bound them, now exercised territorial supremacy over their realm(Philpott, 2010).
Jean Bodin was the first philosopher to treat the concept of sovereignty explicitly(Philpott, 2010). He believed that the medieval idea of a segmented society was no longer adequate to deal with a world in which the Calvinist Huguenots were at war with the Roman Catholic Church, arguing instead that peace and political order would only be obtained, and sovereignty best understood and exercised,
through a concept in which rulers were integrated into a single, unitary body politic that was above any other human law, and was in fact the source of human law. This concept was sovereignty. Only a supreme authority within a territory could strengthen a fractured community(Philpott, 2010).
While Bodin believed that the sovereign was bound to a moral law, both natural and divine, he did not believe that any human law could appeal to it, though he did believe that the sovereign must respect certain rights, like the right to property(Philpott, 2010). How Bodin expected the sovereign to respect these rights and to be bound by them without being able to appeal to them, is a difficult tension is his work to reconcile. While he accepted the legitimacy of several forms of government, he did not believe that the sovereign was “subject to any external human law or authority within its territory”(Philpott, 2010).
According to the social contract theory of Hobbes, a sovereign’s people established a contract with their sovereign by which they transferred all their rights to this sovereign(Philpott, 2010). The sovereign exercised supreme authority and was bound to nothing outside of it, though Hobbes, like Bodin, did believe that the sovereign was bound to some sort of natural law. Furthermore, the sovereign’s subjects were required to obey all his dictates(Philpott, 2010). One of the more popular contemporary versions of this view of the sovereign state can be found in the political philosophy of Carl Schmitt(Philpott, 2010).
Rousseau, advocating a doctrine of radical democracy, saw the collective body of people who were governed as themselves the sovereign, rather than someone standing over them and exercising sovereignty over them. Of course, such a direct of democracy does not stand in contrast to tyranny, but simply transfers the tyranny of the state to the tyranny of the masses by means of the inscription of their tyrannical will in a state constitution(Philpott, 2010). Christian theologians and political philosophers have typically condemned such a view of the sovereign state as a form of idolatry, relegating the sovereignty that properly resides with God and God alone to man, effectively deifying the sovereign, whether he be a collective body of people or a single person, or anywhere in between(Philpott, 2010).
2) “a circumscription of absolute sovereign prerogatives in the second half of the twentieth century.” – The second of the two broad historical movements which have furnished us with the modern theory of political sovereignty is the “rise and global expansion of sovereignty”(Philpott, 2010).
The Holocaust prompted Europeans to consider the importance of abridgments to total sovereignty of any state(Philpott, 2010). These two abridgments took the form of:
a) conventions on human rights – Most sovereign states, in 1948, signed the Universal Declaration of Human Rights with the purpose of guaranteeing 30+ individual rights(Philpott, 2010). There was a sense in which this declaration was merely symbolic, however, since it entailed no measures of enforcement, leaving the letter of the sovereign’s law untouched. The declaration, however, reflected a widespread recognition of the supposed need to curtail activities of any sovereign from without who violated certain human rights viewed as fundamental and inalienable(Philpott, 2010).
Following this declaration was the European Convention for the Protection of Human Rights and Fundamental Freedoms(Philpott, 2010). Formed in 1950, it committed sovereign states to refraining from genocidal activities. Next was the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights(Philpott, 2010). This covenant legally bound the majority of the world’s sovereign states to respect certain basic human rights. In any case, the sovereignty of the covenant’s signatories still remained entirely intact and infringed upon from without in every other respect(Philpott, 2010).
It was not until the Cold War that measures were taken to set up conditions under which the sovereignty of a state could be seriously infringed upon from without through military intervention or international judicial procedures(Philpott, 2010). This occurred during a revision of the Peace of Westphalia when the strength of non-intervention policies were seriously reduced(Philpott, 2010). This curtailment of non-intervention policies found political expression in the 1990s when the U.N. and other international organizations used military force to infringe upon the sovereignty of nations whose activities they deemed illegitimate(Philpott, 2010). What was particularly remarkable of these interventions is that they
have usually lacked the consent of the government of the target state. They have occurred in Iraq, the former Yugoslavia, Bosnia, Kosovo, Somalia, Rwanda, Haiti, Cambodia, Liberia, and elsewhere.” Later notable interventions were The U.S. bombing of Iraq in 1999 and America’s invasion of Iraq in 2003(Philpott, 2010).
A document written in 2001, known as “The Responsibility to Protect”, went even further and advocated an explicit revision of the modern understanding of political sovereignty so as to allow foreign intervention(Philpott, 2010). According to the document, each sovereign state involves a responsibility to protect its citizens which
outsiders may assume when a state perpetrates massive injustice or cannot protect its own citizens. Responsibility to Protect has garnered wide international attention and serves as a manifesto for a concept of sovereignty that is non-absolute and condition upon outside obligations(Philpott, 2010).
b) European integration – European integration also played an important role in the development of the modern understanding of political sovereignty(Philpott, 2010). It was believed that the Holocaust arose because of a lack of accountability of the sovereign to external states with respect to the duty of the sovereign to protect his citizens rather than massacre them(Philpott, 2010). Most of the support for European integration came from the Catholic Christian Democratic parties according to whose medieval Christian political philosophy and theology, no leader could claim universal sovereignty and all leaders were bound and held accountable by certain universal moral values(Philpott, 2010).
The European integration movement began in 1950. The European Coal and Steel Community in the Treaty of Paris was formed by six sovereign states in which
established joint international authority over the coal and steel industries of these six countries, entailing executive control through a permanent bureaucracy and decision-making Council of Ministers composed of foreign ministers of each state(Philpott, 2010).
Comparable measures were taken in the economic realm in the Treaty of Rome in 1957:
It was enhanced by a judicial body, the European Court of Justice, and a legislature, the European Parliament, a directly elected Europe-wide body. Over time, European integration has widened, as the institution now consists of twenty-seven members, and deepened, as it did in the 1991 Maastricht Treaty, which expanded the institution’s powers and reconfigured it as the European Union. Far from a replacement for states, the European Union rather “pools” important aspects of their sovereignty into a “supranational” institution in which their freedom of action is constrained (Keohane & Hoffman 1991). They are no longer absolutely sovereign. Today, European integration proceeds apace. On December 1, 2009, the Treaty of Lisbon came into full force, pooling sovereignty further by strengthening the Council of Ministers and the European Parliament, creating a High Representative of the Union for Foreign Affairs and Security Policy to represent a unified European Union position, and making the European Union’s Charter of Fundamental Human Rights legally binding(Philpott, 2010).
Philpott, Dan, “Sovereignty”, The Stanford Encyclopedia of Philosophy (Summer 2010 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/sum2010/entries/sovereignty/>.