The Day We “Invented” Sovereignty

Over the last 378 years, most of our historians, professors, UN diplomats and international lawyers have treated the year 1648 as a starting point, a rebirth of the modern international order. The core aspects of international law, such as; the sovereign state, non-intereference, and legal immunity, have all circled back to one single document — “The Treaty of Westphalia”.

But who is to say that our collective agreement regarding a single historical event is the ultimate truth? Why is it that this treaty resonates with theorists the most, even if there are various paradoxes undermining its significance?

Looking back at the once shattered Europe, burning up in flames of chaos and religious dispute, the Treaty of Westphalia was a genuine and necessary breakthrough. Without this treaty, the Thirty Years Wars could have engulfed far more than blood and dignity. However, the grand historical significance that is assigned to this treaty by international relations theorists and historians is largely a retrospective projection. When an international order requires legitimacy, and there is no explicit birth for an event or finding, it’s leaders will fabricate and construct one themselves. Westphalia was a convenient, credible starting point — old enough to carry authority. It gave powerful politicians, diplomats and many scholars a foundation for the entire formation of international law.

The purpose of this essay is not to devalue the Treaty’s importance, because for 1648 it was crucial. But to question the gap between what the treaty was responsible for and what was left unsaid yet reframed as innovation and evolution.

A Continent in Crisis

To understand the creation of such a treaty, it is essential to analyze the geopolitical state of Europe leading up to the 1600s. Feudalism and manorialism were the building blocks of Europe in the middle ages, where society was formally divided into three estates: the nobility (who fought), the clergy (who prayed), and the peasantry (who worked). Yet the greatest, most undeniable power lay in the hands of the Church — an institution that held not only spiritual authority, but the right of land, taxation, lobbying power, and the support of virtually every ruler on the continent. Therefore, European society was not a world of virtuous, sovereign states. It was a web of competing, often contradictory claims to authority; where a prince answers to an emperor regarding military matters, but to the pope on ecclesiastical ones, and finally to his nobility with questions of taxation and land. No one in medieval Europe held supreme power over anything honourably. The Holy Roman Empire was perhaps the clearest illustration of this contradiction. Voltaire later mocked it as neither Holy, nor Roman, nor an Empire at all for that matter.

The acceptance of the church as the legitimate power of authority is what managed to pull the states together with invisible strings. However, the moment this mutual agreement was challenged by Martin Luther in 1517, the entire structure of Europe began to crumble.

The Domino Effect

Martin Luther was a German monk who nailed (literally nailed) his 95 theses to a church door in Wittenburg. He had gotten fed up with the church’s corruption and the immoral sale of indulgences: the practice of selling forgiveness for sins but at a price. Even then, he was not looking for a revolution, rather the opportunity for insightful compromise. Instead, he witnessed a domino effect which unravelled the entire political structure of European civilization. His theses received immense support from German princes, who utilized his logic to stop supplying tax money to Rome, and ordinary people that had felt they were being tricked by the Church and filling their pockets. Thus, without realizing, Luther had sparked a Protestant revolution, creating a breakaway religion and dividing Catholicism. The larger issues that formed as a byproduct of this revolution were the religious disputes between Catholic and Protestant princes who both occupied the same empire and both believed their religion was the ultimate truth, yet had no legal mechanism to support their coexistence.

Consequently, what followed was not a friendly disagreement. Wars started tearing through European states one by one. Approximately 100,000 civilians were slaughtered in the Peasants War, where German commoners begged for the liberation that Luther’s words seem to promise, but were obviously shut down by their lords. Then, the deeply engraved fracture slowly climbed its way up from the peasants to the princes, and The Schmalkaldic war broke out between Emperor Charles V who was catholic, and his own protestant princes. The juxtaposition of a ruler fighting a civil war against half of his own empire was foolish, and although he won the battle, he could not settle the debate. Religious uniformity was not something that could be forcefully imposed at this point, the breakaway religions were too far gone. So he sat down, and he negotiated.

The first attempt to soothe the tensions was the Peace of Augsburg which came in 1555 from Emperor Charles V and the Schmalkaldik league. It established a deceptively simple principle: cuius regio, eius religio — whose realm, his religion. Looking below the surface, this was merely a political compromise, dolled up in theological language. Each prince was given the power to determine the official faith in their own territory— which made fighting over religion a geographical matter. Call it what you must — but for the first time in the medieval ages, a prince’s authority within his own territory was considered supreme. Not the church, not the Emperor could override his decision. Was this sovereignty taking its first breath?

In the end Augsburg dotted sloppy lines, hoping nobody would be brave enough to cross. But their gravest mistake was excluding Calvinism. And although Calvinism was also a breakaway religion, it was not Luther’s friend, it was in fact more of an enemy…

For a long 60 years nobody was brave enough indeed.

But right across the border in France, the same tension kickstarted eight consecutive civil wars. France was engulfed in the same conflict but had no binding treaty to put the fire out. In 1572, St Bartholomew’s day became a bloody massacre, with French Catholics filling the streets and murdering between 5,000 and 30,000 Protestants. Many bones still scatter the riverbed of the Seine. Augsburg cut out borders around the Holy Roman Empire, but outside of it, Paris was dripping blood, and so was the rest of the continent.

What followed was a drastic turn of events. On the 23rd of may in 1618, Bohemian nobles who felt the Catholic Habsurgs were attempting to impose Catholicism within their kingdom, marched into Prague castle and threw three catholic representatives of the Emperor out the third floor window. Thankfully all three survived, the Catholics claimed it was the angels that caught them — but the Bohemians insisted it was the pile of manure that did. The Defenestration of Prague became an event to remember. It ignited what is known as The Thirty Years War. What began as a Bohemian constitution crisis, rapidly swallowed the entire continent. Denmark intervened first, followed by Sweden, then France — but only catholic France. In Wedgwood’s famous assessment, the event was a great example in European history of a meaningless conflict, rooted in dynastic ambition, rather than principle. By 1648, this could no longer be branded a religious conflict. It was about dynastic succession, territorial intention, and the lost lives of everyone involved.

Five Long Years

By the late 1640s, everyone was exhausted. Diplomats in Osnabrück and Münster were almost at year five of negotiations. Their arguments consisted of who gets to keep which German bishopric and whether Calvinism should still be practiced in certain imperial cities. “Revolutionary” it was not, but The treaty of Westphalia was finally signed in October of 1648. This treaty differentiated itself from the Peace of Augsburg since it was considered an extension; which included calvinists, territorial adjustments in Sweden and France, and partial recognition of independence of the Dutch Republic and the Swiss Confederation. Within the Empire, this treaty also granted princes more autonomy over their own land and people. However, although this may have looked like “sovereignty” was now freely breathing, on paper it was not. The treaty’s own opening words were “Let there be a Christian Peace”, to the Europeans, this was seen as a Christian settlement not as the launch of something secular and internationally recognized. The authors of this treaty would have fainted if they were to see modern politicians utilize their document to shield authoritarian governments and deny human rights abuses today.

Andreas Osiander, an extraordinary political scientist, has himself stated that many scholars who cite it, have at most skimmed over it, since the foundational elements of international law they attribute to it, are simply not there. Apart from the word “sovereignty” not being written a single time, it also has no explicit mentions of non-interference between states. There is no declaration of a new international system, nor a refurbished world order. Moreover, the Westphalian myth begins to clash with a chronological timeline. A French jurist — Jean Bodin — had previously theorized the concept of sovereignty in 1576. Almost a century before Munster and Osnaburk diplomats came to the same revelation. Bodin defines sovereignty as “the absolute and perpetual power of a commonwealth”, in other words; the supreme authority of a ruler within his own territory, who can not be controlled or overridden by any external power. This jurist was not attempting to predict a post thirty years war continent, but was simply trying to make sense of the conflict-ridden France he had to face daily. Thus, the term sovereignty did not require the year 1648 to establish its existence. It was consciously named and debated amongst legal scholars decades prior.

This does not insinuate that Westphalia was useless, because in the actual world of events, it was specific and it was modest. The treaty ended years of bloodshed, it rebuilt a failing religious settlement (Augsburg), and gave worn out princes a system to work with. It was the light at the end of a chaotic tunnel. But unfortunately, the tunnel splits into a maze before you reach it.

The Morning After

France and Spain, two Westphalian signatories, continued fighting each other until 1659. The Ottoman Empire’s missing invite to Munster and Osnaburk was taken personally, and they also slowly began asserting their dominance on Europe’s Eastern borders. Sweden — one of the main architects of the “new world order” — found itself at war again within decades. So perpetual peace there was not, but at least the Holy Roman Empire witnessed progress. To them, the settlement held more durably, since the medieval constitutional form it operated under had not changed. For another 158 years the Empire was bound by Westphalia. Princes gained autonomy over their own territories, imperial cities secured voting rights, and the religions were finally equal to everyone within the borders. Even so, independence under a feudal dynastic rule, is not the same as modern state sovereignty.

Therefore, Westphalia cannot be entirely responsible for the modern world. What it built was a patched medieval one, functional enough to solve urgent matters. But when the time came to establish modern states, they did not arrive on the back of Westphalia. The main driving forces were capitalism, industrialization, colonialism and brutal revolutions that stripped states of dynastic rule. These events would have occurred regardless of the diplomats in Osnabruck. Yet, the great story of Westphalia made its way to our history books, and university lectures — becoming more consequential than anyone at the time would have thought.

The Man, The Myth, The Legend

The construction of the Westphalian myth was not an accident — it was a deliberate political move. The 300 years that followed the signing of the Treaty, were not sunshine and rainbows. Revolutions wiped out millions, the league of nations failed to prevent the second world war, and fascism had the entire continent in a chokehold for nearly half a century. By 1945, Europe was destroyed, and the original peace institutions were not holding up. Therefore, something new and progressive had to be established, which led to the creation of the United Nations.

During the time of its establishment, an American international lawyer named Leo Gross, published an article, which came to be one of the most cited and well known pieces in the world of international relations and history. Throughout this article, Gross described the treaty of Westphalia as “the majestic portal which leads from the old into the new world”— a generous overstatement. The timing was not coincidental. International lawyers were searching for a historical precedent, upon which they could legitimize the new world order. Westphalia was old enough, significant enough, and distant enough to not be questioned. Hence, Gross utilized it to provide an origin story for those who loathed uncertainty.

What everyone seemed to forget was that forging reality would later carry it’s own consequences. Which is why the myth became a double edged sword.

The declaration of sovereign equality was novel and remarkable. Every state was now able to hold the same legal standing in the international system, regardless of their size or military strength. Thus, for weaker states and ex-colonies, this was the only protection they had against being overridden by their rich and powerful neighbours whilst simultaneously building their independent image. But each claim of equality is still followed by injustice, because although equal sovereignty is mostly followed through, non-interference isn’t. It is applied selectively, by the agents powerful enough to decide what counts.

China invokes Westphalian sovereignty anytime foreign entities raise questions regarding Xinjiang, a region where human rights have been repeatedly violated against the Uyghur population. They frame investigation as an example of a non-interference violation, and continue to disallow scrutiny and foreign aid. Additionally, Russia utilized this principle over Chechnya, but abandoned it when it claimed to act on behalf of self-determination for the Russian-speaking populations in Eastern Ukraine and Crimea. Within the security council, this ideology has become a barrier to peace, allowing gallons of blood to be spilled at the hands of the greater powers. In war-torn regions like Rwanda, Srebrenica, Darfur, and Gaza, the architecture of the westphalian model has given powerful states a “good enough” reason to sit back and do nothing. The United States have vetoed over 40 UN resolutions which were critical of Israel, completely disregarding the atrocities of their military operations in the middle east. The Iraq invasion and the horrific death toll it accumulated, NATO’s bombing of Yugoslavia for 78 consecutive days, American interference in Afghanistan.

The list can go on. But the morale stays the same.

Powerful states have utilized the foundations westphalia created to write a script that each leader follows when it is convenient to them.

The diplomats writing on paper in 1648, had no intention of designing a document to exempt accountability. They were exhausted men who desperately tried to end a war. But their story became one of the most powerful political documents in modern international order. It protects the vulnerable, but it shields the powerful. Sometimes both happen at once. But there’s always one with the upper hand.