Sovereignty and Responsibility

Power, Norms and Intervention in International Relations

J. Moses

• Publisher: Palgrave Macmillan
• Year: 2014
• Print ISBN: 9781137306807
• eBook ISBN: 9781137306814
• Topic: Politics & International Relations
• Subtopic: Diplomacy & Treaties
• Index: Politics & International Relations

This book is a critical study of the concept of sovereignty and its relationship to responsibility. It establishes a clear distinction between empirical and normative definitions of sovereignty and examines the implications of these concepts in relation to intervention, international law, and the world state.

1

Defining Sovereignty

In Chapter IV of Leviathan, Thomas Hobbes (1997, pp. 19–25) offers some strong words on the need for precise and correct definitions in dealing with matters of ‘Truth’ and ‘Knowledge’. ‘[A] man that seeketh precise Truth’, Hobbes claims, ‘had need to remember what every name he uses stands for; and to place it accordingly; or els he will find himselfe entangled in words, as a bird in lime-twiggs; the more he struggles, the more belimed.’ Extending the bird metaphor, he claims that imprecise or incorrect definitions of words can lead to a situation where the by now ‘belimed’ scholar can ‘spend time in fluttering over their bookes; as birds that entring by the chimney, and finding themselves inclosed in a chamber, flitter at the false light of a glasse window, for want of wit to consider which way they came in’ (Hobbes 1997, p. 23). Hobbes proclaims, in sum, that ‘in wrong, or no Definitions’ lyes the first abuse; from which proceed all false and senslesse Tenets’. It must be borne in mind that this was by no means an endorsement of the possibility of establishing a permanent and unimpeachable body of facts concerning the nature and functioning of human society; Hobbes was, to the contrary, of the view that ‘[n]o Discourse whatsoever, can End in absolute knowledge of Fact, past, or to come’ (Hobbes 1997, p. 38). What poor definitions represented, however, was a challenge to sound ‘Reason’, which ‘is nothing but Reckoning (that is, Adding and Substracting) of the Consequences of generall names agreed upon, for the Marking and Signifying of our thoughts’ (Hobbes 1997, p. 26). The consequence, for Hobbes, is a recognition of

how necessary it is for any man that aspires to true Knowledge, to examine the Definitions of former Authors; and either to correct them, where they are negligently set down; or to make them himselfe. For the errours of Definitions multiply themselves, according as the reckoning proceeds; and lead men into absurdities, which at last they see, but cannot avoyd, without reckoning anew from the beginning; in which lyes the foundation of their errours.

(Hobbes 1997, p. 23)

The purpose of this chapter is, in this spirit, to re-examine the definitions of sovereignty and their relationship to responsibility. The idea is not to offer a single, correct definition, but to develop useful definitions that offer the possibility of new insight into the problems at hand. Thus, while making no claims to overturn to the very foundations of this complex and contested concept, it appears necessary to cut away some of the entangling ‘lime-twiggs’ and attempt to open some of the confining ‘chamber windows’ that have generated a raft of contrary, contradictory and occasionally absurd reflections on the meaning and significance of this oft-used word. The primary purpose of this, of course, is to enable a reckoning with the deployment of ‘sovereignty’ in relation to ‘responsibility’ in the context of contemporary debates over military intervention. Does it really make sense to speak of ‘sovereignty as responsibility’? What are some of the problems associated with it? And to what extent do new norms of sovereignty actually depart from the ‘traditional’ notions of sovereignty that they claim to oppose?

It may seem superfluous to once again revisit the problem of sovereignty, given the plethora of texts that have been devoted to this cause over the course of decades and even centuries. Yet an examination of the work of some of the most prominent and influential contemporary theorists of sovereignty in International Relations, such as Robert Jackson and Stephen Krasner, reveals a troubling lack of clarity in their attempts to define the term that lies at the heart of their research agendas. On the one hand, Jackson tries to compress too broad a range of concepts into a single package, while on the other, Krasner’s attempt at defining sovereignty leads to an excess of unpacking and disaggregating. I will look briefly at each of these theorists’ attempts at defining sovereignty in turn.

Robert Jackson’s (1990) development of the concept of ‘quasi-states’ rested heavily on a distinction between juridical and empirical forms of sovereignty. Those states that maintained sufficient power to allow them freedom to act and to compel in the international arena could be understood as having positive (empirical) sovereignty, while weaker, undeveloped or less developed states could only said to be holders of negative (juridical) sovereignty, which provided them with a legal promise of self-determination and non-intervention that was decidedly inferior in relation to the positive sovereignty of the Great Powers (Jackson 1990, pp. 26–31). Hence, as Biersteker and Weber (1996, p. 10) put it, ‘Jackson posits a basic dualism in contemporary international relations, a distinction between the world of Great Power balance-ofpower politics among states with positive sovereignty, and the world of quasi-states that are the creation of non-competitive international norms.’

Jackson’s dual definition sovereignty has much in common with the definitions I will offer below. Yet if we look at his more recent studies on sovereignty, we find an extraordinary range of images, concepts and metaphors in play that appear to dissolve the distinction he had drawn in his earlier work. In a 1999 article and more recent book on sovereignty, Jackson (1999, p. 431; 2007, pp. 21–22) identifies sovereignty as a ‘normative postulate or premise or working hypothesis’ that has the hidden qualities of an iceberg and the malleability of Lego. Further, sovereignty is understood as a ‘constitutional arrangement’, a ‘juridical idea’, a ‘grundnorm’ and ‘strictly speaking, a legal institution that authenticates a political order based on independent states whose governments are the principal authorities both domestically and internationally’ (Jackson 1999, p. 432). In a subsequent paragraph of the 1999 article, Jackson (1999, p. 433) proffers yet another ‘core meaning’ of sovereignty in Hinsley’s (1986, p. 26) definition: ‘the idea that there is a final and absolute political authority in the political community . . . and no final and absolute authority exists elsewhere’.

A series of radical disjunctures present themselves here, most notably in the collapsing of the normative and empirical derivations of the definitions of sovereignty that Jackson puts forward. While Jackson’s preference generally appears to be for a definition of sovereignty as a kind of institutional arrangement between states (as a legal norm), his invocation of Hinsley’s definition points in quite a different direction; here, sovereignty appears as the fact of authority, which must by definition exclude the possibility of an overarching institutional order than authorizes the existence of the sovereign. If sovereignty does indeed represent ‘final and absolute authority’, how can it be conceived to be a part of a legal or normative order, which would presuppose a further layer of authority above the sovereign state?

The problem with Jackson’s more recent attempts at defining sovereignty is, therefore, that in conflating the normative and empirical dimensions of the concept, a logical fallacy emerges. If we accept that sovereignty refers to a time-bound normative order that is in some sense equivalent to a ‘constitutional arrangement’ or ‘legal institution’, this would mean that for states to be recognized as sovereign they would need to acknowledge that they are in fact bound by some form of external authority, which is contrary to the claim that each sovereign is necessarily a ‘final and absolute authority’. These two elements of Jackson’s definition of sovereignty cannot, therefore, logically coexist within a single definition of the term. Sovereignty must mean either a legal or institutional order based on principles of independence, equality and non-intervention, or the term applied to the ‘final and absolute authority’ in a given human society. Both of these usages of sovereignty may have some meaning, but they cannot be reconciled within a single definition of the term and any attempt to do so will necessarily lead to the kinds of contradiction and confusion that bedevil Jackson’s attempts to develop a clear and workable definition.

A further, related question that arises here is whether a ‘final and absolute authority’ has always been present in human societies, or whether there are a series of further qualifications and conditions that must be placed on any useful definition of sovereignty. On this issue, Jackson quite clearly argues, in keeping with the institutional elements of his definition, that sovereignty came into being alongside the emergence of the state in the sixteenth and seventeenth centuries. As such, he claims that sovereignty is a ‘human arrangement’ that ‘could disappear just as the Roman Empire disappeared and Latin Christendom disappeared’ (Jackson 2007, p. 161). Sovereignty, from this perspective, denotes a specific set of norms or values that have been socially constituted over the course of the last 400–500 years and that may very well give way to other arrangements (that would not be associated with the term ‘sovereignty’) in the future. What is curious about this approach is that it seems to prioritise the word over its meaning, the sign over the signified. Jackson’s work, concerned as it is with the ‘evolution’ of sovereignty over the centuries, clearly shows that the normative dimensions of sovereignty have changed repeatedly throughout history. This being the case, what is it that would be ‘disappearing’ in a post-sovereign future other than the use of the word itself? At what point would we know that we were no longer living in a sovereign institutional arrangement? How can it be possible to argue that something called sovereignty will not always exist, even if it may look entirely different to its current form? These questions, which I will discuss further below, pose grave challenges to those who focus on the legal and normative definition of sovereignty and throw into stark relief the need for a sharper distinction between the normative and empirical concepts of sovereignty.

Hinsley wrestled with this issue in a slightly different (and more consistent) manner, arguing that certain historical forms of state authority did not meet the definition of sovereignty insofar as they had not ‘extended their power within the community and become reintegrated to some extent with it’ (Hinsley 1986, p. 32). The idea here is that the concept of sovereignty may only be applied to those political communities where the state and the people have in some sense become amalgamated into a body-politic in which ‘the division of power or collaboration of forces had become inescapable’ and where ‘the community [was] regarded as wholly or partly the source of sovereignty and the state as the sole instrument which exercised it’ (Hinsley 1986, p. 222). In other words, Hinsley made the term ‘sovereignty’ applicable only to certain kinds of political authority, most obviously the modern nation-state and particularly those of a republican form grounded in principles of popular sovereignty. Yet he argued, at the same time, that the concept of sovereignty ‘maintains no more – if also no less – than that there must be an ultimate authority within the political society if the society is to exist at all, or at least if it is able to function effectively’ (Hinsley 1986, p. 217). This more minimalist definition appears to be far less confined by temporal or structural conditions insofar as it could apply to political communities of any kind at any point in recorded human history. Hence, the question remains: to what extent is the concept of sovereignty an explanation of empirical facts and to what extent is it a historically specific catchword for normative or legal orders on an international level?

In another attempt to address the contradictions and paradoxes that have been repeatedly thrown up by such attempts to define sovereignty, Stephen Krasner (1999) has proposed that there are in fact four different types of sovereignty in contemporary politics that we need to be aware of: international legal sovereignty, which refers to the process of recognition that establishes ‘the status of a political entity in the international system’ (Krasner 1999, p. 14); Westphalian sovereignty, which is based upon ‘territoriality and the exclusion of external actors from domestic authority structures’ (Krasner 1999, p. 20); domestic sovereignty, which concerns the organization of public authority within the state (Krasner 1999, p. 11); and interdependence sovereignty, which concerns the regulation of the ‘flow of goods, persons, pollutants, diseases, and ideas across territorial boundaries’ (Krasner 1999, p. 12). While this disaggregation of definitions of sovereignty goes some way toward easing the tensions inherent in Jackson’s definition, a number of different issues are raised. In particular, Krasner’s distinction between international legal and Westphalian sovereignty is not easily maintained, as the principle of non-intervention is a product of mutual recognition between states. As such, Westphalian sovereignty is better understood as a variant of an international legal order and should therefore be understood as an element of international legal sovereignty rather than as a standalone definition of sovereignty, an issue that will be explained further below.

In the end, despite his attempts to delineate differing strands of sovereignty, Krasner’s (1999, p. 227) conclusion collapses the four definitions back into one with the claim that ‘[s]overeignty is an institutional arrangement associated with a particular bundle of characteristics – recognition, territory, exclusive authority, and effective internal and transborder regulation or control’. In identifying sovereignty with an international institutional order that (as he meticulously demonstrates throughout the book) consistently fails to function in accordance with its own principles, Krasner makes his central claim that sovereignty, as an institution, is ‘organized hypocrisy’. What is overlooked here is the possibility that sovereignty is not hypocritical in itself, but is perhaps the cause of such hypocrisy at the international level. This perspective would require a re-examination of the corollaries of what Krasner refers to as ‘domestic sovereignty’, which cannot be conveniently detached from discussions of international legal or Westphalian sovereignty. The reason for this, as I will argue below, is that the sovereignty of states – their status as a ‘final and absolute authority’ – is precisely what generates the hypocrisies and inconsistencies of international institutions. Sovereignty, in this sense, is not the hypocritical institution itself, but it may be recognized as the cause of the hypocrisy of states and international institutions, or perhaps the weakness and irregularity, in the international arena. To draw out various strands of sovereignty and then collapse the various definitions into one institutional package, as Krasner does, serves to obscure these disruptive effects of sovereignty set out by theorists and scholars associated with the Realist school of International Relations. Like Jackson, then, Krasner de-emphasises the de facto definition of sovereignty to a problematic extent and this, I argue, is a major source of confusion over what sovereignty means and over how it may be used as an anchor for reckoning with contemporary international or global issues.

In response to these fallacies, contradictions and confusions, the primary purpose of this chapter is to demonstrate the presence of two parallel discourses of sovereignty that align with different theoretical approaches to international relations and hence to questions of intervention and non-intervention. In this chapter and for the remainder of this book, these differing understandings of sovereignty will be characterized in terms of de jure sovereignty as opposed to de facto sovereignty (McConnell 2010, p. 764). The de jure approach, which dominates the analyses of Jackson and Krasner, encapsulates those who define sovereignty in terms of an institutional or legal order that structures the status and basic norms of interaction between states. From this point of view sovereignty might also be viewed as an ‘empty signifier’ that is redefined and transformed through processes of social interaction and discourse. In the liberal internationalist or cosmopolitan work on the subject, for example, sovereignty sometimes appears as a contingent, rule-based concept that may be understood as ‘a license from the international community to practice as an independent government in a particular territory’ (Taylor 1999, p. 538). This has drawn heavily on constructivist analyses of sovereignty, which ‘treat the principle of sovereignty as a variable, arguing that its precise meaning and behavioural implications vary from one historical context to another’ (Reus-Smit 1999, p. 32) and on assessments of the political impact of globalization that are often over-inflated.¹

On the contrary, Realists tend to view sovereignty in terms of de facto power. De facto sovereignty, as we shall see in the following section, puts forward an image of International Relations in which the ‘rights’ of states (if indeed we can properly speak in terms of ‘right’ in the international arena) are derived from their capacities to make final decisions rather than from an actual or perceived set of rules established among other states. This definition encapsulates those who view sovereignty as a timeless feature of political organization and define it primarily in terms of decisive power. From this point of view, sovereignty is understood not as an institution in itself as much as a quality exhibited by certain institutions at certain times. Such an understanding of sovereignty has a long heritage in political theory and finds a clear place in the Realist International Relations theory of Hans Morgenthau. I will look more closely at Morgenthau’s theory below, alongside other key thinkers in the de facto sovereignty tradition, including Bodin, Hobbes and Schmitt. Despite the prominence and influence of these figures in International Relations theory, there appear to have been few, if any, serious attempts to understand whether the classical Realist understanding of sovereignty can add anything useful to the debates over the RtoP and particularly to the idea of ‘sovereignty as responsibility’. In relation to the RtoP, debate has revolved almost exclusively around the de jure understanding of sovereignty, and indeed sovereignty as a normative principle is explicitly rendered as the key conceptual feature of the RtoP. As we shall see below, however, this normative understanding of sovereignty is deeply limited in terms of providing a useful tool for understanding the resolution of crisis situations in international relations and is largely deaf to the implications of the de facto view.

These categories align with Martti Koskenniemi’s distinction between ‘legal’ and ‘pure fact’ approaches to sovereignty, which he aligns with Kelsen and Schmitt, respectively. For the ‘legal’ approach, ‘ “sovereignty” is a systemic concept – not something external to but determined within the law’. From the ‘pure fact’ perspective, on the other hand, ‘sovereignty is external to international law, a normative fact with which the law must accommodate itself’ (Koskenniemi 2005, pp. 228–231). As Koskenniemi (2005, p. 231) points out:

[T]he very concept of sovereignty loses its normative significance under the legal approach. If a state cannot refer to its sovereignty to justify its action but has to find a rule of law which has given it the right, liberty or competence to act in a certain way, then to speak of ‘sovereignty’ at all is merely superfluous or, at best, a description of the norms whose normative force is in their being incorporated into some legal act, not in their being inherent in statehood.

The argument is not, however, that one or the other definition of sovereignty is irrelevant or outdated. Rather, it is suggested that de jure and de facto definitions can only be of use in reckoning with the complexities of international politics if they are clearly demarcated. Both must be taken into account by anyone seeking to understand sovereignty and its implications for international or global political organization and particularly for understanding the problem of humanitarian intervention. The problem identified in this book is the sparse attention that is paid to questions of power by those advocating the RtoP norm. In response to this lack, the aim here is to focus heavily on the potential implications of the de facto view. It must be emphasized from the outset, however, that this should not be construed as an attempt to dismiss outright the significance of normative change for the behaviour of states, which has been well documented in a vast quantity of International Relations literature, particularly over the past two decades.

De facto sovereignty

Jean Bodin is often credited as being the first theorist of sovereignty. His attempt to define the meaning and significance of sovereignty occupies ‘a relatively small portion of a massive treatise on public law and policy’, the Six livres de la republique, yet it stands as the most influential element of that text (Franklin 1992, p. xii). The significance of Bodin’s analysis lies primarily in his critique of the possibility of mixed constitutions or power-sharing arrangements within a state (Franklin 1992, p. xvii). It is with Bodin that the controversial notion of the indivisibility of sovereignty arises. ‘[T]he prerogatives of sovereignty’, he claims, ‘are indivisible’:

For the part that has power to make law for everyone – that is, to command or forbid whatever it pleases without anyone being able to appeal from, or even oppose its commands – that part, I say, will forbid the others to make peace or war, to levy taxes, or to render fealty and homage without its leave; and he to whom fealty and liege homage is due will obligate the nobility and people to render homage to no one but himself. Hence it must always come to arms until such time as sovereignty resides in a prince, in a lesser part of the people, or in all the people.

(Bodin 1992, p. 104)

In Political Theology, Schmitt claims that...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgements
• Introduction
• 1. Defining Sovereignty
• 2. Sovereignty, (Ir)responsibility and Intervention
• 3. Normative Theory and Political Theology
• 4. The Politics of Sovereignty as Responsibility: The Case of Libya
• 5. Sovereignty, Intervention and Contemporary International Law
• 6. Beyond Sovereignty? Cosmopolitanism and Realist Thought on the World State
• Conclusion: Myths and Metaphors of Sovereignty
• Notes
• Bibliography
• Index