Thorbjorn Jagland, Chairman of the Norwegian Nobel Committee, Secretary-General of the Council of Europe, and former Prime Minister of Norway, wrote an op-ed piece for the New York Times decrying China’s jailing of Liu Xiaobo. Jagland’s piece covers the concept that “international human rights law and standards are above the nation-state.”
I am not concerned with that statement – who reading here would disagree with it? – nor do I have a problem with Liu Xiaobo’s getting the award. Liu Xiaobo is certainly a better choice than Obama was.
I have a problem with the historical narrative Jagland outlines to defend his position:
The modern state system evolved from the idea of national sovereignty established by the Peace of Westphalia in 1648. At the time, sovereignty was assumed to be embodied in an autocratic ruler.
But ideas about sovereignty have changed over time. The American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen replaced the control of the autocrat with the sovereignty of the people as the source of national power and legitimacy.
The idea of sovereignty changed again during the last century, as the world moved from nationalism to internationalism. The United Nations, founded in the wake of two disastrous world wars, committed member states to resolve disputes by peaceful means and defined the fundamental rights of all people in the Universal Declaration of Human Rights. The nation-state, the declaration said, would no longer have ultimate, unlimited power.
The Peace of Westphalia established sovereignty embodied in a dynastic ruler, not an autocratic one. Even “Absolute” France was not particularly autocratic. Essentially all of the rulers represented in the Treaties of Münster and Osnabrück had important constitutional checks on their power. These were not written constitutions, of course, but neither is modern Britain’s. Princes had often extremely defined rights and strong limits on their authority. Contrary to much historical narrative, many of these princes were also quite happy with this. They were brought up in a society in which there were rules and orders, and they obeyed them. To a large extent, “sovereignty” in the Peace of Westphalia meant that the Pope was not involved.
It might be even more correct to say sovereignty was established embodied royal ruler, not a dynastic ruler. Most of the states represented at the Peace of Westphalia were not sovereign as per the contemporary understanding of sovereignty. They were states of the German Empire, and the Emperor was the sovereign.
This state of affairs was reinforced in the Treaty of Ryswick in 1697. The period between Westphalia and Ryswick was one of France attempting to utilize its newfound sovereign powers to lay claim to the whole of Alsace and the Palatinate. The Treaty of Ryswick fully restored the Palatine states to their rulers under the sovereignty of the Holy Roman Empire. When German princes made legal arguments for dragging parts of Alsace away from France, they argued that it was legitimately under the Empire’s sovereignty – not a specific German state’s. The Treaty of Westphalia is famous for weakening the Emperor’s hold over the Empire, and thus weakened the most important of Europe’s sovereigns while introducing the modern idea of sovereignty.
To get back to the original point, then, these princes were not autocratic. They had a very specific legitimacy based on ancestry and kept their legitimacy by ruling according to expectations. One of the stated purposes of the Imperial Courts was to stave off and overthrow abuses within the states, including preventing princes from becoming autocrats (see: Württemberg, anytime between the sixteenth and eighteenth centuries) and more than once defending peasants against their not-sovereign princes. Indeed, German princes would not start claiming sovereignty for themselves until Napoleon, after the important advances in sovereignty ideology Jagland identifies with the Revolutions.
He skips over an important change that came before that: the contract. The Enlightenment contract idea, that a ruler had a contract with the ruled, was actually not a new one. As already alluded to, princes ruled for their subjects, both in ideology and, quite often, in reality (at least, they tried to do what was right). The contract idea is very important because, by making the nascent nation-state a bipolar creature (ruler and ruled), it eliminated the need for the various different orders, estates, and corporate bodies that vied for influence and privileges. In a sense, it reduced the bodies limiting the ruler or sovereign’s power to the single body of societies. Through this time, more specific and modern ideas of rights were developed. We must not forget, though, that the state’s role of protecting freedom was always present, albeit in different forms.
If anything, the Revolutions permitted the idea of a unitary body of “the State” to develop because now it was of the people. Before, censorship was usually under the rubric of causing “disorders” or leading subjects astray: it was for their own good, a paternalist explanation. With the rise of civil-society-as-nation-state, anything that attached the state, its rulers, or its legitimacy could also be an attack on society. That is, an attack on you, or me.
Jagland is of course perfectly correct about the post-war changes to this schema. There are reasons, though, that the European Union has been described as a new Holy Roman Empire, and it is not just because the component states usually feel fine ignoring the center’s decisions. Receiving legitimacy from above as well as below limits the power that the rulers wield and, yes, the potential for autocracy.