New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 19 April 2015
The Rise of the Territorial State and
The Treaty Of Westphalia
Dr Daud Hassan*
Territory is one of the most important ingredients of Statehood. It is a
tangible attribute of Statehood, defining and declaring the
physical area within
which a state can enjoy and exercise its sovereignty.1 According to
State territory is that defined portion of the surface of the globe which is
subject to the sovereignty of the state. A State without
a territory is not
possible, although the necessary territory may be very
Indispensably States are territorial bodies. In the second Annual message to
Congress, December 1, 1862, in defining a Nation, Abraham
Lincoln identified the
main ingredients of a State: its territory, its people and its law.
* Dr Hassan is a lecturer at the Faculty of Law, University of Technology, Sydney. He has special interests in international law, international and comparative environmental law and the law of the sea.
1 The term sovereignty is a complex and poorly defined concept, as it has a long troubled history, and a variety of meanings. See Crawford J, The Creation of States in International Law (1979) 26. For example, Hossain identifies three meanings of sovereignty:
1. State sovereignty as a distinctive characteristic of states as constituent units of the international legal system;
2. Sovereignty as freedom of action in respect of all matters with regard to which a state is not under any legal obligation; and
3. Sovereignty as the minimum amount of autonomy which a state must possess before it can be accorded the status of a sovereign state.
Hossain K, State Sovereignty and the UN Charter (Oxford, MSD Phil D) (1964) 3227
as quoted in Crawford, supra at 27. However, generally sovereignty can be defined as
‘supreme authority - independent of any other earthly authority - it implies independence all round, within and without the border of the country. Oppenheim L, International Law 8th Ed (1955) 118-119. The learned Max Huber, Arbitrator in the Island of Palmas Arbitration, states: ‘Sovereignty, in the relation between states, signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other state, the function of a state.’ (1928) 22 AmerJInt’lL 875. It is to be noted, although this idea about sovereignty is derived mainly from the writings of Bodin, (a French jurist of the 16th century), these assertions are to be found before Bodin’s time. Examples of this are in Justinian’s Institute and in the medieval conflicts over sovereign power between Church and State. For details, see Huntington JF, Sovereignty: An Inquiry into the Political Good (1959) chs 10-12.
2 Oppenheim L, International Law Vol - 1, 8th Ed
He then added “the territory is the only part which is of certain
durability.”3 In modern system, a successful State is a
territorial Unit. As a territorial Unit, its sovereignty extends over all the
and other things within its given territory. According to Dunleavy
[A] State is sovereign or the supreme power, within its territory and that
state sovereignty extends to all the individuals in a given
It is needless to say, in relation to supreme authority, State territory is
very important. Oppenheim further observed :
[T]he importance of State territory lies in the fact that it is the space
within which the State exercise its supreme authority.5
At present it is a recognised fact that States have sovereign power and
exclusive authority within their territory. This imparts an
The territorial sovereignty and sovereign equality of States are recognised
by the international community. They are the most important
international relations as well. Terrotorial sovereignty and sovereign equality
are also general principles of international
law. But these understandings have
not come in a day. There is a long history behind this achievement.
The objective of this paper is to see how the territorial State system
emerged and the role of the Treaty of Westphalia in relation
establishment of the territorial State system. The paper commences with a
discussion on the significance of territoriality
followed by examining the
origin of and concept of territory. Territory as an Anti-Hegimonic concept and
the Westphalia settlement
are considered next. The paper then moves on to
present Westphalia as a pioneer of territorial State practice and its importance
in relation to growth of national consciousness. The changing trends of
territoriality are also discussed. The paper concludes that
in terms of
progressive development of modern territorial State system the significance of
the Treaty of Westphalia is without
3 Duchacek ID, “Components of International and National Systems” in Duchacek ID (ed.)
The Territorial Dimension of Politics Within, Among and Across Nations (1986) 20.
4 Johnston RJ, “Bounded Places” in Johnston RJ (ed.) A Question of Place: Exploring the
Practice of Human Geography (1991) 191-92.
5 Supra n 2 at 452.
ii. SigniFicance OF territOriaLity
Territoriality is a primary geographical expression of social power6
which is related to the definition and operation of States. Territoriality
indicates within what physical boundaries States can legitimately
defining of the area provides a form of communication and of enforcement
Origins and Concept of Territory
Jim Gottmann has described the origin of the concept of territory.7
It derives from the Latin Terra for land and Torium,
belonging to ruler. That is, Territory is the land belonging to a ruler or
State. This meaning has been tracked back to 1494, approximately
to the birth of
the modern world economy.8
Although this concept emerged approximately at the same time as the world economy, it was finalised by the Treaty of Westphalia in 1648, which is recognised as the first treaty of modern international law. It confirmed that within its own territory, each State is sovereign. That is, interference in the internal affairs of another country was the first offence of international law.9
After this treaty, many sovereign States emerged in Europe. This was the
original territorial basis of the modern interstate system,
the first world
political map.10 To ensure the internal order, the territorial State
was deemed the most durable and comparatively most efficient unit.
iii. anti-hegimOnic cOnceptS and weStphaLia SettLement
In the medieval Europe, under feudalism, there was a hierarchical system of
power and authority instead of territorial sovereignty
and sovereign equality.
In the medieval period, sovereigns were divided into various categories. They
were as follows:
(i) Some sovereigns were universally recognised as independent, both de-
facto and de-jure;
(ii) Some were independent in practice but not altogether in juridical theory;
6 Sack RD, Human Territoriality: Its Theory and History (1986) 5.
7 Gottman J, The Significance of Territory (1973) 15.
8 Taylor PJ, “Territoriality, State and Nation” in Political Geography: World Economy: Nation
State and Locality (1985) 96.
9 Ibid, 96.
10 Ibid, 96
(iii) Some states were separately constituted with their own laws and
institutions but dependent, such as Southern Netherlands and
various states in
Italy and around the Baltic.11
As can be seen, the territorial State system was not introduced during the
medieval period. In this respect, by the beginning of the
there was a demand for the establishment of norms and rules for peaceful
relations. According to Pugh:
[B]y the beginning of the seventeenth century the growing complexity of
international customs and treaties had given rise to a need
for compilation and
systemisation. At the same time the growing disorders and suffering of war,
especially of the thirty year war,
which laid waste, hundreds of towns and
villages, and inflicted great suffering and privation of peasants and city
called for some further rules governing the conduct of
Settling the Hobbesian chaos, anarchy and destruction called for some rules
for peace and order. There was a need for an alternative
design to the
hierarchical feudal concepts and other evils, which led to an anti-hegimonial
alliance and establishing the balance
of power. In this respect, the Westphalia
settlement was a remarkable and significant development. It recognised the
and acknowledged all Princes or States as equally sovereign.
It removed temporal power from the church. It was therefore a fundamental
charter in nature. As a fundamental and comprehensive charter it established
many rules and principles of the new society of states.
Some of the general
ideas clearly expressed by this charter have been echoed in the following
international settlements and in the
permanent congress of the League of Nations
and United Nations.
The Westphalia settlement emphasised the separation and equality of states
rather than the unity of Christendom. It rejected any idea
that the Pope or
Emperor had any universal authority.13 The Westphalia settlement
established the anti-hegimonic concepts of territorital sovereignty and
11 Watson, A, “Westphalia : an Anti-Hegimonial Commonwealth of States” in The Evolution of International Society : A Comparative and Historical Analysis (1992) 187.
12 Henkin L, Pugh G, Schachter O, & Smit W, Cases and materials on International Law
13 Watson, supra n 11 at 188.
As a separate State the sovereign were no longer bound by the Church norms
which regulated the conduct of lay rulers in medieval period.
In order to
function, they needed new rules and institutions in place of old ones.14
To regulate the dealings of the Princes or States with each other, there
developed a new concept of International law as a substitute
So, in the strict sense the modern International law and sovereign
territorial States occurred at the same time. The history of modern
International law begins with the emergence of independent nation-States from
the ruins of the medieval Holy Roman empire and is
commonly dated from the peace
of Westphalia (1648).15
There was no short way to the transition of territorial sovereign States from
the integrated medieval hierarchical system. It was
very hard and difficult.
This system emerged through a triangular struggle, that is, struggle between
kings and Emperors, Emperors
and Popes, Popes and kings. At that stage,
international relations were not based on equally distributed power, either in
in theory. The weak were always threatened by the strong and the
survival of the weak was uncertain. The idea of territorial State
was related to
collective security of nations and to establish rule of law for the equal
protection of sovereign States from indiscriminate
use of force by the higher or
The territorial State system originating in the swinging between war and
peace, developed as a system of political control. It evolved
out of the
struggle between the forces supporting the then hegimonic order16 and
those who were pushing the Europe towards a sort of secular independence and who
intended to constitute a new Europe. Westphalia
settled this. It ended thirty
years of war. In practice, the Wesphalia settlement added some new and
significant matters in relation
to territorial practice. It was the first
effective general congress of Europe and this congress made a scope for
of the secular sovereigns.
It gave the formal sanction of territorial and equal sovereignty of secular
States and coordination between them. The Westphalia settlement
sort of commonwealth of sovereign States. This legitimation of acommonwealth of
sovereign states was marked as a victory
because in general this was the
ambition of the Princes, specially of the German Princes, both Protestant
14 Ibid, 188.
15 Kennedy D, “A New Stream of International Law Scholarship” (1988) 7 WiscInt’lLJ 19.
16 Watson, supra n 11 at 182.
Catholic in relation to The Holy Roman Empire.17 At this stage ,
there emerged the idea that the co-existence of territorially separate and
equally sovereign States afforded a better
guarantee of peace than the Holy
iv. weStphaLia aS a piOneer OF territOriaL State practice
The territorial practice was legitimised and also standardised by the
Westphalia settlement. It emphased the separation of States.
Christendom was divided into sovereign secular States with a thick line between
them and the government were the absolute
authority inside that line. This
change brought a new image in every sovereign territorial limit, that is, all
Governments are the
exclusive authority and their decisions and arguments are
exclusively carried out within their territorial limit, as the concept
Westphalian sovereignty is tied to State territory. According to territorial
sovereignty, within a territory there is only one
absolute temporal power, the
Government of that territorial State.
This territorial division of sovereign authory, in the modern sense, was not
found in the Greek city states, nor in Roman Empire,
nor in Medieval
Christendom. The Great Wall of China and Roman line may be an example in this
context but these were not like modern
times. Littimore states:
[T]he concept of a man made great wall ... was more a product of the kind of
state created with in China than of the kind of pressure
against China from the
Similarly the lines conceived by the Roman Empire were not real territorial
divisions. They were used as a temporary stopping places
where the potentially
unlimited expansion of the Pax Roman had come to a halt.20 Very often
they unilaterally expanded their empire and their territory was simply extended
over another territory. In the context
of sovereign territorial division, the
Westphalia settlement is notable. As a first treaty of modern International law,
the door to and legitimised the territorial practice of exclusive
authority and sovereign State equality.
The Treaty of Westphalia embodied some normative conceptions which were very
significant in interstate relation. As these conception
are significant in the
international arena, they have been embodied in subsequent
17 Ibid, 186.
18 Herz JH, “The Rise and Demise of the Territorial States” (1957) 9 WorldPolitics 476.
19 Kratochwil F, “Of System, Boundaries and Territoriality : An Enquiry in to the formation of the State system” (1986) 39 WorldPolitics 35.
20 Ibid, 35-36.
Two dominant conceptions of the Treaty of Westphalia have been embedded in
Article (2) of the United Nations Charter. Article 2(1)
and Article 2(7) are
appropriate from the perspective of their interrelation.
Article 2(1) of the Charter states:
The organisation is based on the principle of sovereign equality of all its
and Article 2(7) states:
[N]othing contained in the present charter shall authorise the United Nations
to intervene in matters which are essentially within
the domestic jurisdiction
of any state or shall require the members to submit such matters to settlement
under the present charter.21
The ideas originating from Westphalia, that sovereign equality and exclusive
domestic jurisdiction are the best guantors of peace
between peoples are
formally perpetuated in the United Nations Charter.22
v. weStphaLia in reLatiOn tO
grOwth OF natiOnaL cOnSciOUSneSS
In relation to the growth of national consciousness, Westphalia settlement is
remarkable. It paved the way to look at, or even to
conceive of, the national
interest. This conception was reflected in the function of the European States
and even now, in the changing
world context, it greatly influences the modern
At present, the number of States has grown enormously and there have emerged
many changes in inter-State relations and in the State
system. We know that most
of the Asian, African, and Latin American Countries were once under the control
of European powers. After
the Second World War there came a significant change
in the world politics. Through decolonisation a large number of Asian, African,
and Latin American countries became independent, equal sovereign States and
became member of the United Nations, once again echoing
understanding that recognizing a community of territorial sovereign and equal
States was the best method either to
21 United Nations, Charter of the United Nations and the Statute of the International Court of Justice (1945) 4.
22 Falk R A, “The Interplay of Westphalia and Charter Conceptions of
International Legal Order” in Falk R A & Black
C E (eds.) The
Future of International Legal Order (1969) Vol. 1, 49.
or to keep peace between peoples. At present the position of these States in
the United Nations is significant. They are organised
in their national and
vi. the changing trend
At present the idea of Globalization is active in the international arena. It
emphasizes the interdependence of States. Similarly
to the International Human
Rights movement, it views solving socio-economic and political problems requires
collective efforts and
restrictions on State sovereignty. These movements argue
that the problems of a country are not only territorial but global. Therefore,
there is an argument of the need to increase the mutual cooperation among the
States. Without totally abolishing the equal territorial
sovereign power of
States, they want to see the world, geopolitically, as a single place.23
Ironically, this thinking has been running mainly by the developing
countries and gradually they have gained some benefit in this
respect. Whether a
return to more centralized and hierarchical power can or will better serve
promoting peace and order than the
Westphalian model is an interesting question.
Which model would best serve the factually less powerful, on which theorizes an
independent sovereign status or one which centralizes power will likely
not be the decided by the less powerful themselves. That
is always a cause for
Today human race is divided into more than 200 States. The State system and
International law have progressively developed. Interstate
rapidly grown in the various fields and these relations are governed by
International law. The territorial sovereignty
and sovereign equality of States
is recognised in the interstate system. These are basic principles of
These conceptions are rooted in the Treaty of Westphalia. Therefore in
relation to modern State system the Treaty of Westphalia is
a landmark. This
treaty attempt to systemise the spheres of social and political life. By ending
the thirty year war, it situates
International law as a rational philosophy, a
handmaiden of statehood and the cultural heir of religious and moral
23 Brown R, “Globalisation and the End of the National Project” in J. MacMillan and A.
Linklater (eds.) Boundaries in Question : New Directions in International Relations (1995)
24 Supra n 14 at 14.
With time, and according to the demands of the world society, new thoughts about the interstate system have been and are still being introduced. New Institutions have been established to maintain the peaceful relations among the States. New International treaties have been concluded for the development of world system. Nevertheless, as a first treaty of modern international law the significance of this treaty is immortal because it introduced modern State system and enabled peaceful co-existence between equals. We should not forget its basic wisdom as we move forward to new models.