Colonialism and the Westphalian nation-state system
Public international lawyers (including my former State Department colleagues): Welcome your thoughts. A lot of this was news to me.
So this is section I.B of my article:
B. People and Places in the Westphalian Nation-State System
In the field of public international law, scholars are fond of citing to “the Westphalian nation-state system” (along with the works of Vitoria, Grotius, Emmerich de Vattel[1] and a handful of other white European men) as the foundation of global, orderly relations between sovereign nations based on “linearly bounded spaces” or borders.[2] The United States has enjoyed and cherished its “Westphalian sovereignty” for all of its existence.[3] The reference is to the 1648 Peace of Westphalia, a series of treaties that ended the Thirty Years’ War as well as the Eighty Years’ War in Europe.[4] However, this entire system was constructed largely to address the discovery of the New World and the quandary posed by Native Americans, and the hypocrisy at its core, the Erroneous Assumption, was adopted wholeheartedly by the U.S. Supreme Court in its earliest decisions regarding Native American people and places.
As Kal Raustiala explains, “[t]he distinctive feature of Westphalian statehood…is that it divides the world into mutually exclusive territorial entities.”[5] The Peace of Westphalia was supposedly a break from feudal European governance, in which law was primarily tied to persons and not places, and “a ruler’s jurisdiction often overlapped with that of other potentates or joined noncontiguous areas.”[6] It also placed all sovereign states on a juridically equal footing, with each sovereign state, no matter how large or small, able to assert through its territorial sovereignty “a sort of shield for states against influence by outsiders.”[7]
One major consequence of the Westphalian system was supposed to be “an increased emphasis upon the supremacy of national law, not merely over the natural born subjects of the king, but over all who dwelt within the limits of the territorial state, irrespective of their nationality.”[8] Whereas ancient Roman law had once considered foreigners to exist under a separate legal system than Roman citizens,[9] a system of legal “pluralism,” now territoriality instead “provided an effective way of communicating the authority of a sovereign, and of enforcing sovereign power… [controlling] people and things by controlling area.”[10] Supposedly, 1648 was the year in which the crowned heads of Europe transitioned from being “King of the English” to “King of England.”
However, this standard account of the Peace of Westphalia is for the most part a myth, based on contemporaneous anti-Hapsburg war propaganda that then fiercely took hold among 19th and 20th century revisionist historians. Not for one minute since 1648 has it been true that European countries each have a single legal system that governs all people uniformly within their territorial boundaries. From the outset, there were people who were never intended to be part of this system; in fact, that was the whole point.
The very wars that the Peace of Westphalia ended revolved largely around the colonial possessions that by 1648 included, inter alia, Spanish colonies in Cuba, Mexico, South America, and, most significantly for this article, the Philippines; Portuguese colonies in the Azores, Cape Verde, Mozambique, Angola, Brazil, and India; and the French and English in North America. The Dutch Republic, while supposedly waging war against the Spanish Hapsburg king for the sake of Dutch independence and territorial sovereignty, was in fact seeking Spanish recognition of Dutch overseas conquests.
In short, the Dutch did not become a territorial state at Westphalia and then export that model abroad….[T]he development of the state in Europe was almost exactly coterminous with European imperialism, which operated on principles of hierarchy and divided sovereignty that were sharply at odds with core features of the Westphalian model.[11]
The European Doctrine of Discovery provided further scholarly support for an orderly system of dividing up new territory among empires while differentiating between the civilized and the uncivilized. The Catholic doctrine, which in some form traced back to the Crusades,[12] by the 1500s had been modified into a series of papal bulls that justified, inter alia, Portugal’s expansion of jurisdiction and geographical rights into Africa.[13] Following the Peace of Westphalia, both Catholic and Protestant countries such as England and the Netherlands collectively embraced the related principle of terra nullius, “that lands that were not possessed by anyone, or which were occupied by non-Europeans but not being used in a fashion that European legal systems approved, were waste or vacant.”[14]
It was actually the concept of terra nullius and the acquisition of New World territories that later created a “strong impetus toward the use of cartographic territorial exclusivity” that we now associate with the Westphalian nation state system: “spaces could only be claimed in such a manner, because there were no known political authorities that could be—and had to be—included in a treaty.”[15] Terra nullius greatly assisted in justifying expansion into the New World amid encounters with Native Americans, despite copious modern evidence that most Native Americans on the East Coast of North America, prior to Western encounters, “were predominantly farmers, living in permanent towns and villages,” and in several instances organized into large confederacies such as the League of Five (later Six) Nations.[16]
The founders of the United States, in their drafting of the U.S. Constitution, purported to be engaging in a new experiment that would be a radical change from the reigning governance model in Europe. However, the European Westphalian myth, as it existed in the 18th century alongside rampant colonial subjugation of “uncivilized” peoples, was adopted wholeheartedly in the founding and earliest years of the United States—despite the fact that
[c]olonialism is [otherwise] commonly assumed to be antithetical to the constitutionalism of the United States. It is, in many ways, constitutionalism’s opposite. It is fundamental law that is dedicated to building and maintaining an empire. Its function is not to set and preserve borders, but to expand them and to govern fragmented jurisdictions…The realities of far-flung, unilateral governance over nonconsenting “foreign” peoples, lands and governments require a distinctive set of fundamental values—hierarchy, a strong military, a robust bureaucracy, and unrestrained power.[17]
Indeed, as early as 1810, the U.S. Supreme Court embraced terra nullius, describing Native American land rights vis-à-vis their treaty arrangements with England as “a mere occupancy for the purpose of hunting. It is not like our tenures; they have no idea of a title to the soil itself. It is overrun by them, rather than inhabited. It is not a true and legal possession.”[18] By 1823, the U.S. Supreme Court was willing to explicitly endorse the Doctrine of Discovery, by which whatever European Christian nation first “discovered” a land acquired the
sole right of acquiring the soil from the natives and establishing settlements upon it….
In the establishment of these relations, the rights of the original inhabitants were in no instance entirely disregarded, but were necessarily to a considerable extent impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased was denied by the original fundamental principle that discovery gave exclusive title to those who made it.[19]
The U.S. Supreme Court “honored” the treaties European powers had entered into with Native nations by repeatedly denying Native Americans the right to sell their own land.[20] In Johnson & Graham’s Lessee v. McIntosh, for example, the Court would not recognize a title to lands made under grants by Native nations in 1773 and 1775, because “the exclusive right of the British government to the lands occupied by the Indians [settled by treaty with France in 1763] has passed to that of the United States.”[21] By 1831, the Supreme Court had created a brand new category of sovereignty to describe Native Americans’ status:
Though the Indians are acknowledged to have an unquestionable, and heretofore unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.
They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their Great Father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory and an act of hostility.[22]
The Native Americans’ unique status as “domestic dependent nations” extinguished the rights of U.S. States to enforce their own laws in Native American territory, which became the exclusive domain of the federal government, but precluded Native Americans from being treated as “foreign nations” within the meaning of Article 1, Section 8, clause 3 of the U.S. Constitution. A decidedly un-Westphalian status, a year later, the Supreme Court observed that these “weak nation[s]” were comparable to the “tributary and feudal states” of Europe.[23]
[1] Vattel is believed to have had an enormous influence (perhaps now somewhat exaggerated) on the Founding Fathers’ views of the Law of Nations. [Add citations here]
[2] Jordan Branch, “’Colonial Reflection’ and Territoriality: The peripheral origins of sovereign statehood, European Journal of International Relations 18 (2) 277-297 (2010), at 288.
[3]Stephen D. Krasner, Organized Hypocrisy (Princeton University Press, 1999), at 55 (“The United States has been a Westphalian state from its inception. Smaller weaker states have been much more subject to external pressures.”). Krasner differentiates between four types of sovereignty: international legal sovereignty, Westphalian sovereignty, domestic sovereignty, and interdependence sovereignty.
International legal sovereignty refers to the practices associated with mutual recognition, usually between territorial entities that have formal juridical independence. Westphalian sovereignty refers to political organization based on the exclusion of external actors from authority structures within a given territory. Domestic sovereignty refers to the formal organization of political authority within the state and the ability of public authorities to exercise effective control within the borders of their own polity. Finally, interdependence sovereignty refers to the ability of public authorities to regulate the flow of information, ideas, goods, people, pollutants, or capital across the borders. International legal sovereignty and Westphalian sovereignty involve issues of authority and legitimacy, but not control…The rule for Westphalian sovereignty is the exclusion of external actors, whether de facto or de jure, from the territory of a state.
Id. at 3-4.
[4] For example, Hans Morgenthau asserts that certain core “rules of international law were securely established in 1648” and that the “territorial state” was made “the cornerstone of the modern state system.” Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 6th Ed. (1985).
[5] Kal Raustalia, Does the Constitution Follow the Flag?, 11.
[6] Raustalia, 9.
[7] Raustalia, 12. What is known today as the “Westphalian model” or “Westphalian sovereignty” is based on two factors: territoriality and “the exclusion of external actors from domestic authority structures,” also known as “the norm of nonintervention in internal affairs.” However, Krasner points out that the norm of nonintervention had “nothing to do with the Peace of Westphalia…It was not clearly articulated until the end of the eighteenth century,” primarily by the political theorists Wolff and Vattel during the 1760s. Stephen D. Krasner, Organized Hypocrisy (Princeton University Press), at 20. Krasner notes that Vattel argued that “the Spaniards violated all rules when they set themselves up as judges of the Inca Athualpa. If that prince had violated the law of nations with respect to them, they would have had a right to punish him. But they accused him of having put some of his subjects to death, of having had several wives, &c—things, for which he was not at all accountable to them; and, to fill up the measure of their extragavant injustice, they condemned him by the laws of Spain.” The United States did not accept the principle of nonintervention until 1933, at the seventh International Conference of American States. Id. at 21, quoting Vattel 1852 at 155.
[8] Adair, Extraterritoriality of Ambassadors, 9.
[9] Raustalia, 10.
[10] Raustalia, 12, quoting Robert Sack, Human Territoriality: its Theory and History (New York, Cambridge University Press, 1986), 5.
[11] Alexander Bick, Westphalia: Beyond the Myth, in Historical Perspectives on the Future of International Order, Seventeenth Century: After Disruption, Seth Center and Emma Bates, eds., Center for Strategic and International Studies (CSIS) (2020), available at https://www.jstor.org/stable/resrep26045.4 (viewed June 23, 2024).
[12] Robert J. Miller, Christianity, American Indians, and the Doctrine of Discovery, in Remembering Jamestown: Hard Questions about Christian Mission, Amos Young, Barbara Brown Zikmund, eds., Pickwick Publications, 2010, Lewis and Clark Legal Studies Research Paper No. 2011-13, posted 8 April 2011, at pp. 52-53, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1803674.
[13] Miller at 54.
[14] Miller at 58. As Herzog points out, the relationship between land use and rights can be traced to ancient Greek and Roman writers who were “unanimous in holding that property was a man-made institution that had emerged as a consequence of the adoption of agriculture. According to them, while hunters had no property, pastoralists had owned their animals and farmers developed property in land.” Native Americans “could thus maintain their lands only if they continuously used it.” Tamar Herzog, “Did European Law Turn American? Territory, Property and Rights in an Atlantic World,” in New Horizons in Spanish Colonial Law, Thomas Duve, Heikki Pihlajamäki, eds. (Max Planck Institute for Legal History and Legal Theory, 2016), at 84.
[15] Jordan Branch, “’Colonial Reflection’ and Territoriality: The peripheral origins of sovereign statehood, European Journal of International Relations 18 (2) 277-297 (2010), at 288.
[16] James Wilson, The Earth Shall Weep: A History of Native America (Atlantic Monthly Press, 1999), 22. These nations decidedly did *not* govern themselves by “Westphalian” concepts of territoriality, nor could they typically be
understood in the simple binary terms of a nation state (you’re either English or not English): it was woven together from several distinct strands which created a complex web of allegiances and obligations and gave each individual a set of complementary identities. As Nanepashemet explains, ‘…people had different ways of identifying themselves. There was personal self identification. There was being a member of a lineage, which might extend into many other communities. There was the community identification, and identification with people who spoke the same language.’ Which one of these complementary identities was paramount at any given moment depended on circumstances: the time of year, what you were doing, where you were. Id., 50-51.
East Coast Native societies, such as the Algonquin, were “at least as orderly as contemporary Europe’s,” but to look at a map of them, “it can at first glance seem confusing. There are none of the simple straight lines we [Westerners] expect from political divisions….To make sense of it, you have to realize that…these are not nation states, but groups of culturally—and often physically—related peoples who move within frontiers shaped by custom and mutual understanding rather than legal definition.” Wilson at 47.
[17] Maggie Blackhawk, Foreword: The Constitution of American Colonialism, The Supreme Court 2022 Term, 137 Harv. L. Rev. 1, 23 (2023).
[18] Fletcher v. Peck, 10 U.S. 87 (1810), at 94. One historian notes that the Doctrine of Discovery “was developed primarily in the fifteenth century by England, Spain, Portugal and the Catholic Church to control acquisitions of non-European lands,” Robert J. Miller, Christianity, American Indians, and the Doctrine of Discovery, in Remembering Jamestown: Hard Questions about Christian Mission, Amos Young, Barbara Brown Zikmund, eds., Pickwick Publications, 2010, Lewis and Clark Legal Studies Research Paper No. 2011-13, posted 8 April 2011, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1803674.
[19] Johnson & Graham’s Lessee v. McIntosh (“McIntosh”), 21 U.S. 543 (1823), at 573.
[20] How the colonizers were able to leverage private land purchases from Natives into jurisdictional claims of sovereignty by Western powers, dating back at least to the 1660s, is exhaustively covered by K-Sue Park, Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power, 133 Yale L.J. 1487 (2024).
[21] McIntosh, at 543.
[22] Cherokee Nation v. Georgia, 30 U.S. 1 (1831), at 17-18 (emphasis added).
[23] Worcester v. Georgia, 31 U.S. 515 (1832) (emphasis added).