The Informationist

Great article. But I think you undersell your case.

From its humble beginnings in 1648, the Westphalian state system has grown into the world?s primary organizational structure. As a result, it has assumed sacred status in some corner. (As in, for example, Thomas Nagel?s review of Jeremy Rabkin?s new book in the current The New Republic). The question is: Why? It certainly has not kept the peace (though I suppose that things might have been worse without it), though it has been reasonably good for business. But its basic flaw remains that its starting point?that the King?s faith was his country?s faith?is little more than a license to discriminate against religious minorities. The Protestant Kings promised not to protect Protestants living in Catholic territory, and vice versa. It thus immediately set the stage for today?s basic dispute: sovereignty against human rights.

Throughout most of the Westphalian era, there was no such thing as ?Human Rights Law.? How a ruler treated ?his own? people was really no one else?s business. If, for example, Hitler had chosen to exterminate only Germany?s Jews, anyone could express an opinion, but no one would have the right to interfere. The problem arose when he started exterminating Poland?s Jews?after all, they ?belonged? to Poland to emancipate or exterminate, depending upon the mood of the Polish sovereign. Similarly, when Saddam gassed the Kurds of Halabja, he was simply gassing ?his own? people. Poor taste perhaps, but hardly a violation of anything important. Had he reached across the border to gas Syrian, Iranian, or Turkish Kurds?well, that would have been a problem. As longs as he restricted himself to the Kurds that the state system gave him, however, the rules remained intact.

The post-WWII attempt to weld Human Rights Law onto the state system never grappled with the underlying contradiction. They were essentially voluntary rules that individual countries could adopt by treaty?and then violate with impunity. Every attempt to address such problems ran smack into the inviolability of sovereignty.

Though the conflict between sovereignty and human rights has always been troubling, it is only over the past few years that the internal contradictions threaten to undermine the entire system?or at least to modify it in a significant way. Bin Laden declared war on the United States?a meaningless statement in the Westphalian sense, but one that he supported with acts of war. President Bush, in his inaugural address, spoke directly to the citizens of other states?and told them to violate the laws of their sovereigns. This direct dialog between the head of one state and the citizens of another is as inappropriate as an individual?s declaration of law. And in the ultimate absurdity, the ICJ ruled (among other improprieties and absurdities) that Palestine simultaneously qualifies as a state sovereign over population and territory, but not a state whose acts of war can qualify to create a state of war.