So it turns out #6: There is no Treaty of Westphalia
Dear friends,
As promised — this issue of the newsletter that doesn’t focus on The Thing. But please, be safe.
From my old undergrad friend Nick Seaver, a coincidental post (as he moves his courses online) reminds us of the kinds of questions I was really hoping to think about through this newsletter:
So here are some things I’ve been thinking about recently (and fair warning, this one is gonna be a little more weird than some of the last few):
There is no “Treaty of Westphalia”
In general, people throw around references to the Treaty of Westphalia, and the concept of the Westphalian state sovereignty system, FAR too casually in national security discussions. It has a stylized nature — you say “Westphalian sovereignty” when you mean a sort of assumptions, that generally really are post-1945 ways of thinking about the world, implying that each state is exclusively in charge of what happens inside their own borders. For example, the idea that it’s Wrong to invade other countries and take their land, permanently, is really only a norm created by the United Nations.
Nonetheless, people really want to believe in the idea of Westphalian sovereignty, and that it started at the Treaty of Westphalia that ended the Thirty Years’ War between Catholics and Protestants, in 1648ish. This is, well, just wrong. And if you think it does, you’re going to come to some really wrong conclusions.
For starters, there is no “Treaty of Westphalia.” There were in fact three treaties, negotiated by parties in two different cities (Münster and Osnabrück), because the Protestant and Catholic warring sides weren’t trusted to be in the same city without restarting the war. So, y’know, maybe read the Wikipedia entry.
Second, well, the treaty didn’t in fact establish the norm that if you’re a state, you’re in charge of what happens inside your borders. That’s because, well, it’s not a treaty of states. It’s a treaty of kings and princes. Seriously. Just look at the first paragraph of the English translation of the Treaty of Münster (from Yale Law School’s indispensable Avalon Project), and take a deep breath:
In the name of the most holy and individual Trinity: Be it known to all, and every one whom it may concern, or to whom in any manner it may belong, That for many Years past, Discords and Civil Divisions being stir'd up in the Roman Empire, which increas'd to such a degree, that not only all Germany, but also the neighbouring Kingdoms, and France particularly, have been involv'd in the Disorders of a long and cruel War: And in the first place, between the most Serene and most Puissant Prince and Lord, Ferdinand the Second, of famous Memory, elected Roman Emperor, always August, King of Germany, Hungary, Bohemia, Dalmatia, Croatia, Slavonia, Arch-Duke of Austria, Duke of Burgundy, Brabant, Styria, Carinthia, Carniola, Marquiss of Moravia, Duke of Luxemburgh, the Higher and Lower Silesia, of Wirtemburg and Teck, Prince of Suabia, Count of Hapsburg, Tirol, Kyburg and Goritia, Marquiss of the Sacred Roman Empire, Lord of Burgovia, of the Higher and Lower Lusace, of the Marquisate of Slavonia, of Port Naon and Salines, with his Allies and Adherents on one side; and the most Serene, and the most Puissant Prince, Lewis the Thirteenth, most Christian King of France and Navarre, with his Allies and Adherents on the other side. And after their Decease, between the most Serene and Puissant Prince and Lord, Ferdinand the Third, elected Roman Emperor, always August, King of Germany, Hungary, Bohemia, Dalmatia, Croatia, Slavonia, Arch-Duke of Austria, Duke of Burgundy, Brabant, Styria, Carinthia, Carniola, Marquiss of Moravia, Duke of Luxemburg, of the Higher and Lower Silesia, of Wirtemburg and Teck, Prince of Suabia, Count of Hapsburg, Tirol, Kyburg and Goritia, Marquiss of the Sacred Roman Empire, Burgovia, the Higher and Lower Lusace, Lord of the Marquisate of Slavonia, of Port Naon and Salines, with his Allies and Adherents on the one side; and the most Serene and most Puissant Prince and Lord, Lewis the Fourteenth, most Christian King of France and Navarre, with his Allies and Adherents on the other side: from whence ensu'd great Effusion of Christian Blood, and the Desolation of several Provinces. It has at last happen'd, by the effect of Divine Goodness, seconded by the Endeavours of the most Serene Republick of Venice, who in this sad time, when all Christendom is imbroil'd, has not ceas'd to contribute its Counsels for the publick Welfare and Tranquillity; so that on the side, and the other, they have form'd Thoughts of an universal Peace…
Third, it was a treaty of kings and princes because in Europe then, sovereignty wasn’t a binary. Rather, you could, through tangled webs of marriage and inheritance, result in bizarre situations where Emperors could also be Kings at the same time, and could have more power over a polity as King than as Emperor over the same exact territory! The whole war began because, through a series of unlikely follies of inheritance laws, a new Catholic Holy Roman Emperor got control over the Protestant-ish (it’s complicated) Kingdom of Bohemia. It then promptly rebelled against him because of the principle that whoever ruled over the Kingdom got to pick the official religion, and kick out anyone who disagreed (“cuius regio, eius religio” for those of you keeping count in our Latin AP league). The fight, in other words, wasn’t about national sovereignty and the right to control what happens inside their borders, it was about what happens when different sovereignties (imperial, kingly, religious) overlap. And, spoiler, the ultimate settlement of the war was that sovereigns don’t have that power inside their borders, and have to tolerate Catholics, Lutherans, and Calvinists!
And this is, by the way, only me explaining the least-wrong parts of how people usually explain this. In fact, any conversation with me about the Thirty Years’ War eventually ends in this:
So it was, well, genuinely stunning to watch this talk by the excellent Brendan O’Connor (on twitter as @USSjoin, and one of the conveners of the excellent, entirely-off-the-record Narwhal conference, about which I can at most say “I may have attended. The cocktails and conversation may have been excellent.”) He correctly identifies most of these issues, and explains, well, why it matters.
He then argues that if sovereignty matters, then you have to understand who gets it, and who doesn’t, and why. And the tech community wants to say that it’s sovereign, a sort of John Perry Barlow-esque argument that cyberspace should have a Declaration of Independence. And when places like Microsoft say that they’re neutral state-like entities, they’re really saying “we don’t want to have to comply with the laws in a geography around how data is treated.” They act as if they’re states, seeking to send and receive ambassadors, above the politics of the states they’re in, and that the uses of their technology stand outside the politics of the state that they notionally reside in.
But, well, tech companies still have offices, and bank accounts, and rely on shockingly-easy-to-cut transatlantic fiber optic cables. And it turns out that all of those reside in existing states, who have politicians, and courts, and legislators demanding that Something Must Be Done. And it turns out that none of them really care about your random text file insisting that Online Is Special, and all of them believe a story about the Treaty of Westphalia that says that they control everything inside their borders.
So what happens when politics comes rolling back in?
***
In the past week or so, there have been two seismic developments: the Five Eyes alliance declared a new round in the Encryption Wars, and the Cyberspace Solarium Commission published its report. I’ll write more about them in the coming weeks, and I hope you’ll find it worth your attention — they’ll matter a lot to whether or not you’ll get to have freedom, and privacy, and security in the years ahead.
But fundamentally, this is a fight about whether sovereignties can overlap, and what happens when they do (even if your theory says they can’t). Either way, we’re in for some fireworks.
May this birb bring joy to your timeline
Other news:
Following up on our deep dive in Issue #4, turns out there is a quite good Szechuan restaurant in Brookline, outside of Boston; a strong recommend to their cocktail program, but bring your own ma la if you like it heavy.
The penguins at the Shedd Aquarium are taking advantage of the break to get a little exploring done
In an alternate universe, Abraham Lincoln would have been memorialized with a ziggurat.
NASA confirms pi need only be calculated to 15 places, for most practical work. Sorry, Mr. Finch.
Next time, on Dave Kasten:
Why is spinning class the modern equivalent of going to the club?
Disclosures:
Views are my own and do not represent those of current or former clients, employers, friends, or my cat.
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