More on sovereignty: How to redefine it? A standing hypocrisy?

An authoritative jurist like José E. Alvares concedes that the time has come to rethink some fundamental documents like the 1948 Genocide Convention (UNGA 1948) by adding a protocol clearly setting out what is within the signatory states’ rights to do in the face of genocides taking place in other signatory states. And Anne-Marie Slaughter even argues that UN member states at best enjoy “conditional sovereignty” (as distinct from a “Westphalian ideal of absolute autonomy”) (Slaughter 2005, 628), and that a state retains the rights accorded to it under the UN Charter only so long as it fulfils its “responsibility to respect the dignity and basic rights of its citizens,” internally, and “the responsibility to respect the sovereignty of other states,” externally (ibid.).

The RtoP principle would seem to offer a solution to the problem of addressing serious crimes against humanity: it would do so by recasting sovereignty as responsibility. But, as Alvarez points out, while there is no denying that restrictions can be placed on the sovereign rights of a state that commits crimes like genocide and ethnic cleansing, “when the largest military and economic power seems all too ready to deploy the ‘preventive’ use of force anywhere and everywhere, [...] old-fashioned notions of un-impeachable sovereignty and non-intervention against overweening power retain their traditional appeal” (Alvarez 2008, 279).

These considerations suggest that sovereignty is a relative concept. What this means, on a first approximation, is that it should be gauged against the economic, military, and political power that different states wield. “Smaller and weaker states, particularly those that have suffered colonialism, are more prone to interpret sovereignty in territorial terms. Some powerful states, including most pointedly the United States, tend to see sovereignty in terms of freedom of policy choice and hence are reluctant to accept any interpretation of RtoP that implies an automaticity of response” (Luck 2009, 11). This observation connects to the question of the political implications of sovereignty, and it was Hans Kelsen who previously saw the need to engage with these implications, arguing that Jean Bodin’s famous definition of sovereignty boiled down to the

¹

Alvarez, however, has also aimed criticism at the RtoP principle, noting that this principle “by its nature is grounded in a more ‘flexible’ or permeable view of the legal rights of sovereigns (including their rights to territorial integrity)” (Alvarez 2008, 279; also published as Alvarez 2009).

French sovereigns’ effort to free themselves of the hegemony exercised through the imperium bestowed on the German emperors (Kelson 1920, §§ 1-2).

In grappling with the complexity of the problem of the plural interpretations the concept of sovereignty is open to, it will be useful to turn to Stephen D. Krasner’s (1999) book Sovereignty: Organized Hypocrisy, noting that “the term sovereignty has been commonly used in at least four different ways.” We have

• • domestic sovereignty, referring to the organization of public authority within a state and to the level of effective control exercised by those holding authority;
• • interdependence sovereignty, referring to the ability of public authorities to control transborder movements [the flow of information, ideas, goods, people, pollutants, or capital across the borders of their state];
• • international legal sovereignty, referring to the mutual recognition of states or other entities; and
• • Westphalian sovereignty, referring to the exclusion of external actors from domestic authority configurations. (Krasner 1999, 9; italics and line breaks added; phrase within square brackets quoted from p. 4)

In this breakdown of the meanings of sovereignty we also have an outline of the concept’s historical transformations within a systematic frame that brings together its domestic implications and its outward projections. The RtoP doctrine—mainly concerned with the fourth, Westphalian meaning—has only formally changed the meaning of sovereignty, while leaving intact what Krasner argues to be its substance as an example of “organized hypocrisy,” which continues to be its main defining trait. That the transformations of the concept of sovereignty have not changed its substantive meaning is something that can be appreciated by briefly going through its history.

In the history of political thought, the concept of sovereignty in the domestic relations system has mainly been investigated through the problem of its limits. In its international setting, by contrast, sovereignty has consistently been construed as unlimited, as an exercise of authority in something like a state of nature. We can see this in the work of Thomas Hobbes and John Locke. Thus in Hobbes’s doctrine, domestic sovereignty found its basis of legitimation in the principles governing the state of nature, which required individuals to forsake their natural rights for the (natural) right to life and limb, all the while securing this latter right by an agreement to keep covenants (stare pact is). On this absolutist approach, a symmetric scheme was thus set up that would provide a dual guarantee, ensuring respect for the sovereign’s authority, all the while protecting the sovereign’s subjects in the security of their person.

While domestic sovereignty is the sovereignty of authority, interdependence sovereignty (as we saw) is a state’s ability to control movement across its own borders. As Krasner points out, the loss of control that comes with globalization does not necessarily entail a loss of authority, nor does it entail a loss of legal recognition (international legal sovereignty). What can happen, by contrast—and

Protection and neocolonial policies 65 indeed what we have seen—is that the loss of control, as in transportation and communication, “has prompted states to enter into agreements (an exercise of international legal sovereignty) to create international institutions, some of which have compromised their Westphalian sovereignty by establishing external authority structures” (Krasner 1999, 13-14) that undermine their ability to prevent foreign intervention in their own territory.

This takes us to sovereignty in Krasner’s third meaning of the term, namely, international legal sovereignty. As Krasner notes, this idea is built on the “classic model of international law,” which analogizes states to individuals. Indeed, on this model, writes Krasner (1999, 14), “states are equal in the same way that individuals are equal.” But this is a spurious analogy: whereas individuals formally enjoy the equal protection of the laws, states are not all equal under a single supranational legal system. Their juridical equality in the international arena can only be based on their mutual recognition, and in this setting a state’s recognition or nonrecognition of another state serves as an instrument of political leverage in conditions of material or ideological conflict—an instrument with which to weaken or strengthen the position of another state.

But it is the fourth meaning of sovereignty in the context of international relations that best enables us to clarify the import of humanitarian intervention and of RtoP.