Although Jean-Jacques Rousseau famously predicted that the Treaty of Westphalia was to forever remain the foundation of our international system’, the European Union has emulated the prevailing system of international relations some 375 years after its emergence during the 1648 peace negotiations in the German cities of Osnabrück and Münster. The EU’s departure from the Westphalian paradigm may be regarded as a direct consequence of the determination of the Founding Fathers to make the renewed outbreak of war between former archenemies ‘not only theoretically unthinkable but also materially impossible’.
Guest blog by Jaap Hoeksma
The EU’s abandonment of the Westphalian system has been sealed by the EU Court of Justice in its verdicts of 16 February 2022 concerning the conditionality mechanism of the Union’s Recovery and Resilience Facility. This decision has not come overnight but has been carefully prepared and contemplated. In hindsight, the evolution of the EU to an ever closer union among the peoples of Europe van be analysed as a gradual deviation from the Westphalian paradigm. The first momentous and indispensable step was triggered by the world wars which devastated the ‘old continent’ during the first half of the 20th century. The outcry ‘Nie wieder Krieg’ implied that the participating states promised and assured each other that they would refrain from their Westphalian right to conduct war. The creation of the first European Community both realised and symbolised this intention as the six participating states in the ECSC (France, West-Germany, Italy, Belgium, The Netherlands and Luxembourg) pooled sovereignty over the means necessary for the conduct of war and placed it in the hands of a supranational authority. So, the European Community for Coal and Steel could rightfully be described as a ‘revolutionary breakthrough of the traditional pattern of international organisation’.
The ensuing road towards the construction of a transnational democracy at the level of the European Union was marred by errors, pitfalls and near collapses. The milestones on this long and winding road are the broadening of the cooperation between to original six member states in 1957 to the entire economy (EEC) and the subsequent finding of the ECJ in 1963 that, by pooling sovereignty in a number of fields, the member states had created a new legal order. The political equivalent of the autonomous legal order of the EEC -unthinkable under the traditional paradigm!- came with the conclusion in 1973 of the nine member states that the EC formed a Union of democratic States. The Declaration on European Identity formed a turning point as the emerging polity thereafter also endeavoured to function as a democracy of its own. It took five treaties and forty-four years for this goal to be realised! Although it was regarded as impossible by the adherents of the Westphalian system, the 2007 Lisbon Treaty construes the EU as ‘a democratic union of democratic states’.
Despite the unambiguous wording of the Lisbon Treaty, the -by now- 27 member states of the EU continued to discuss the end goal of the EU in traditional Westphalian terms as either a federal state or a confederal union of states. A number of member states allowing or encouraging democratic backsliding in their country invoked the Westphalian principle of non-interference in order to keep Brussels at bay. This debate reached its climax, when Poland and Hungary formally used the argument of interference in their internal affairs in their complaint against the conditionality mechanism, contained in the RRF. The ECJ dismissed the complaint by establishing that the member states of the EU have based their cooperation on a set of additional international agreements. These additional accords do not only contain advantages like economic growth and the guarantee of peace but also obligations such as the duty to respect the values of the Union. The member states have entrusted the Union with the task to oversee the adherence to these values. The Court concludes that, in establishing this system of governance, the member states and the EU have effectively rendered the Westphalian system obsolete.
Seen from the perspective of the quest for perpetual peace, which was reinvented by Immanuel Kant and which is embodied today by the Peace Palace, it may even be argues that the EU is emulating the Westphalian system. By sharing the exercise of sovereignty and by functioning as a dual democracy the EU is developing an additional possibility to Kant’s binary option of either World Republic or Free Federation. Recalling the Kantian observation, made at the end of the 18th century, that the consequences of injustices, committed in one part of the world, will also be felt elsewhere, it must be concluded that the world has become too small for the exercise of absolute sovereignty by absolutely sovereign states. Today’s blockade of grain from Ukraine by Russia leads to starvation in the Middle East and Africa. Europe may have been the first continent to experience that the Westphalian concept of absolute sovereignty has become obsolete in a globalised world. In consequence, the EU and its member states owe it to the world to lead by example and to show in practise that their post-Westphalian model of transnational governance can work.
 A. Bick, Westphalia: Beyond the Myth, JSTOR, http://www.jstor.org/stable/resrep26045.4. Accessed 29 Jun. 2022.
 R. Schuman, Declaration of 9 May 1950, https://www.cvce.eu/en/recherche/unit-content/-/unit/5cc6b004-33b7-4e44-b6db-f5f9e6c01023/a797d304-5311-4e61-b534-95fef47fe648
 Cases Poland and Hungary against Parliament and Council, ECLI:EU:C:2022:97 and ECLI:EU:C:2022:98
 Kapteyn & VerLoren van Themaat, The Law of the European Union and the European Communities, Alphen aan den Rijn 2008
 EC-Bulletin 1973-12
 J. Hoeksma, The European Union: a democratic union of democratic states, Oisterwijk 2021