Constructing Sovereignty between Politics and Law

Tanja Aalberts

• Publisher: Routledge
• Year: 2012
• Print ISBN:
  9781138025417
• eBook ISBN:
  9781136324192
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This book explores the interplay between sovereignty, politics and law through different conceptualizations of sovereignty. Despite developments such as European integration, globalization, and state failure, sovereignty proves to be a resilient institution in contemporary international politics.

This book investigates both the continuity and change of sovereignty through an examination of the different ways it is understood; sovereignty as an institution, as identity; as a (language) game; and as subjectivity. In this illuminating book, Aalberts examines sovereign statehood as a political-legal concept, an institutional product of modern international society, and seeks an interdisciplinary approach that combines international relations and international law. This book traces the consequences of this origin for the conceptualization of sovereign statehood in modern academic discourse, drawing on key jurisprudence and international treaties, and provides a new framework to consider the international significance of sovereignty.

As an innovative approach to a critical institution, Constructing Sovereignty between Politics and Law will be of interest to students and scholars of international relations, international relations theory and international law.

1Introduction

Despite (or due to?) its death long and often foretold, sovereignty continues to boggle the minds of International Relations (IR) and International Law (IL) scholars and practitioners alike. On the one hand, it involves issues like globalization and European integration, which apparently undermine the supreme authority and (legal) independence of the sovereign state. On the other hand, it is the condition of postcolonial statehood, and more specifically its failures, which does not fit the neat picture of internal authority and external equality as the dual sides of the sovereignty coin.

The story is renowned, and more or less the defining narrative of both International Relations and International Law as disciplines, and as such the ostensibly unproblematic starting point for inquiries. ‘1648’ is symbolic of the flying start of the society of independent and equal states, which allegedly was completed at the globalization of the states system during the final wave of decolonization after the Second World War. From that time onwards the world was nicely organized in one category: sovereign states. With the notorious exception of Antarctica (as well as the continuing controversies over its Northern twin), every square metre of the globe’s soil is part of one or other exclusive state’s jurisdiction. However, if sovereignty connotes a distinction between inside and outside, combining internal order with external anarchy, the post-war globalization of the ‘Westphalian model’ coincided more or less with its dispersion. The proliferation of supra- and transnational governance structures and the anarchy found in a worrying number of predominantly postcolonial states stand at loggerheads with everything sovereignty is believed to entail according to the disciplinary chronicles.

This has resulted in intellectual confusion and ensuing incessant debates between those who claim sovereign statehood to be a redundant or outmoded concept, versus those who focus on the state’s unchanged resilience as key actor and principle, despite the challenges. Indeed, for a concept that has been declared desolate, redundant and outmoded for decades, sovereignty is still surprisingly present both in international practice and in academic discourse of advocates and opponents in International Relations theory and International Law alike.¹ While Benn’s (1955: 122) timely suggestion to eradicate ‘so Protean a word’ in a way was both sensible and pragmatic in terms of the quagmire that comes with the concept of sovereignty, it has proved to be more recalcitrant than that. Sovereignty cannot just be wished away. Indeed, those who set out do so – on either empirical, normative or pragmatic grounds – are to a certain extent dismissing their own discipline. Even if it is not really clear what sovereignty precisely ‘is’, apparently it is conceived as something worth striving, fighting and dying for, or against, in the eyes of a wide variety of political actors, ranging from secessionist movements to alter-globalists. It is both an emotive term (James 1986; Lauterpacht 1997; Radon 2004) and a powerful discourse indeed. The abandonment-thesis then is

tantamount to saying that the student of politics and international relations is unable and will never be able to have a proper understanding of a concept whose referent is understood and aspired to by statesmen, national liberation movements, terrorists and activists.

(Kurtulus 2004: 371, n5)

The alternative conception of sovereign statehood in terms of its unchallenged continuation is hardly more satisfactory, as it does not account for the dynamics and observed changes in world politics and arguably renders sovereignty an ahistorical concept, which, paradoxically, apparently has no relationship to international relations as a daily practice. Such a conception then would result in draining international relations of their content (Barkawi and Laffey 2002).

Rather than the redundancy of sovereign statehood versus its unchallenged continuation, the puzzle that occupies many contemporary analyses is that of ‘continuity in change’, i.e. the resilience of sovereign statehood amidst developments that seem to undermine it. In order to move beyond the deadlock debate regarding the claim of the death of sovereignty, on the one side, and its unchallenged endurance, on the other, recent analyses of sovereignty present an alternative to the rudimentary (neo)Realist assumption of ‘a state is a state is a state’ that has dominated the discipline of International Relations ever since Waltz’s (1979: 93ff) notorious formulation that all states are ‘like units’, and which informs many readings of international relations. The elegant, Janus-faced picture of sovereign statehood, combining supreme authority (internal sovereignty) with juridical independence and equality (external sovereignty) as a universal given, is qualified and elaborated in terms of the emergence of different forms of statehood and/or sovereignty. According to such a perspective, the focus shifts from the debate between two camps to a more fine-grained categorization of different types of state.

Generally, these types are subdivided into three categories: postcolonial statehood (including ‘quasi’, or ultimately failed states); modern statehood (the so-called Westphalian model); and postmodern statehood (linked to notions of multilevel governance and ‘pooled sovereignty’). In this depiction, postcolonial (‘premodern’) and postmodern states apparently evolve at opposite ends of a sort of continuum of statehood, which balances on the notion of modern statehood along the Westphalian model (Österud 1997; Sørensen 1998, 2001). At first sight, such perspectives open up the black box of the state, problematize or update the familiar Westphalian model and, in addition, allow for changes in the institution of sovereign statehood, arguably leading to a more precise discussion and empirical reflection of different instances of statehood.

A closer examination, however, reveals that while these conceptualizations are insightful in describing and visualizing alternative forms of statehood, they stop short of addressing the sovereignty puzzle that transpires from their analyses. Ultimately they cannot solve the paradox related to these instances of withered sovereign statehood, in terms of the resilience of sovereignty in situations that would render it inapplicable, redundant or outmoded. This book takes up the puzzle where many analyses leave it by approaching sovereignty as a question, rather than a given. In other words, instead of dismissing sovereignty because of its ambiguity, this ambiguity rather instigates the current study (cf. Bartelson 1995: 14). Starting from these accounts of the sovereign state of affairs at the turn of the millennium, it moves beyond such analyses by elaborating how this condition of sovereignty as both a changing and enduring institution impacts upon our understanding of how sovereignty works and how it can be meaningfully studied. It is argued that, ultimately, the distinction between different types of statehood, when conceived in terms of descriptive categories, rather obscures the close relationship between international relations as a daily practice and sovereign statehood as a politico-legal concept an important medium as well as an outcome of that practice (Bartelson 1995: 47; Giddens 1985).

Accordingly, the primary aim of this book is to problematize and scrutizine sovereignty, as a protean but resilient key concept of international relations. It does so by discussing and critically engaging with different conceptualizations of sovereignty, in order to gain insight into both the workings of sovereign statehood, and its continuity and change in international relations. Starting from the rather trivial wisdom that the world was not created subdivided in neat sovereign territorial compartments, but was thus developed somewhere along the way with ‘Westphalia’ as the crucial productive moment in this story of origins (that is inherited in both IR theory and International Law), this book traces the consequences of such a premise – that sovereignty was invented, be it at Westphalia or somewhere along the way – for our understanding of sovereign statehood in academic discourse. From this commonplace it follows we can only gain insight into the workings of sovereignty by taking its social and contingent disposition seriously. This book hence is informed by the perspective that sovereignty is constituted, consolidated and changed through the practices and minute rituals of coreflective statesmen, judges and academics alike (cf. Ashley 1984; Walker 1991; Biersteker and Weber 1996b). Hence it makes less sense to ask what sovereignty is (as allegedly an ahistorical, given concept); rather the meaning of sovereignty lies in what follows from it, that is to say in what it does in terms of bringing about a particular politico-legal reality. Traditional analyses of the sovereignty concept generally cannot capture these dynamics due to an implicit assumption that in order to be meaningful analytical tools, concepts have to be constant, objective and reflective of their empirical referent. Moreover, it is a mission impossible to search for a neutral or descriptive meaning of sovereignty, as its meaning is always informed by a particular theoretical tradition (cf. Connolly 1974; Guzzini 2005). Through an ongoing conceptual exercise, this book will indeed show how conceptual and theoretical analysis always permeate each other.

From the above outline – let alone its title – it will be clear that this book is inspired by constructivist insights (broadly defined). While in itself, the articulation of sovereignty nor a constructivist take on it is novel,² the analysis concurs with Persram’s (1999: 163) observation that ‘serious implications of this kind of critique continue to demand reiteration and relentless substantiation within academic debates’. Generally, in two ways, this book sets out to contribute to the discussion. For one thing, rather than starting from a full-blown constructivist framework in the first chapter and criticizing other theoretical perspectives accordingly, this book adopts a more engaging approach. Appreciating the pluralist character of IR theory as an asset, it is written from the perspective suggested by Sylvester (2007) that rather than an antagonistic or indifferent approach towards different ‘camps’, on the one hand, or an eclectic or synthesizing endeavour, on the other, a more fruitful and academic route is to ‘juxtapose fragmented knowledges’ on the basis of the insights we can gain from them through a critical engagement with regard to a particular ‘puzzle’. Seeking to address a more varied audience than the like-minded adherent who speaks the same jargon and is familiar with the rather abstract concepts, the book is set up like a theoretical excursus through different conceptualizations of sovereignty, where one analysis leads to the next question and different theoretical perspectives thus pass in review. In other words, starting from a rereading of the familiar narrative of Westphalia as the beginning of the society of sovereign states, a number of approaches of diverse intellectual orientations are scrutinized in light of their elaboration of ‘sovereign statehood’ and its current condition in the international society, of which it is both a foundation and a product. This is done on the basis of their own appreciation of Westphalia as a transformative moment in the history of International Relations and International Law, at which the institution of sovereignty allegedly was invented. A guideline that is distilled from the Westphalian narrative is the link between the sovereign state and the international community, or ‘sovereignty–society’ for short.

Second, the conceptualization of the relationship between politics and law is included in the analysis. Pursuing MacCormick’s (1993: 11) identification of sovereignty as a ‘politico-legal concept’, that ‘hovers on the edge of the political and yet also on the edge of the legal’, an additional premise of this book is that sovereignty is neither pure politics nor pure law. Indeed, reducing it to a legal principle encourages ‘a certain amnesia of its historical and culturally specific character’, as Walker (1993: 166) has famously warned us. Vice versa, restricting it to mere power or autonomy does not do justice to its social and normative disposition. Hitherto, however, disciplinary boundaries seem to have served as a convenient scapegoat to refer difficult questions to the other domain. Combining these sides then enables a move beyond the caricatural separation of conceptual worlds of the empirical reality of politics versus the normative realm of law, where sovereignty is conceived either an empirical fact or a juridical rule (cf. Bartelson 1995: 15, n10). Moreover, this not only concerns the usual suspect(s) of Realist accounts of sovereignty, but also permeates approaches that are more conducive of the role of institutions, norms and law in international politics, as will be discussed throughout the various chapters.

In a sense, sovereignty, rather, can be envisioned as balancing on the boundary of politics and law. Whereas the significance of ‘norms’ in international relations has been postulated since the 1960s and 1970s by the English School, and this norm-ative perspective has been adopted and elaborated by the various variants of the ‘constructivist turn’ from the 1990s onwards, this has so far not led to a systematic and integrated conceptualization of the workings of sovereignty in relation to both political and legal practice.³ This book hence sets out, as an additional objective, to overcome such elusive habits of ‘bracketing’ or parochialism in order to gain more insight in the workings of sovereignty within the international realm. As such, it not only addresses new and potentially illuminating questions regarding the relation between politics and law, but also enriches the conceptualization by moving beyond taken-for-granted-ness and by combining insights from both disciplines. The guideline can then be extended to the triad ‘sovereignty–law– society’ as a point of reference for the analysis throughout the different perspectives and chapters.

Together, this will lead to an abstract elaboration of sovereignty as a norm and a fact concomitantly, which can put a spin on the debate regarding sovereign statehood and its alleged obsolescence or resilience (in terms of flexible endurance) in contemporary, (post)modern international relations. This relates to the first of several caveats that are in order to properly introduce the analysis. It needs to be clear from the outset that the current argument should not be read as a normative plea for sovereign statehood qua organizational model for (international) politics, as best way to combine order and justice on the international level. As Bull (1995 [1977]: 65) has emphasized: the international society of sovereign states as such is neither morally sacrosanct nor historically inevitable. The point of departure rather is an empirical observation of its continued relevance; that is to say, ‘[a]s the discursive construct by which the idea of the “international” occurs, it is impossible to ignore the state in any analysis that claims to be speaking about world politics’ (Persram 1999: 171). At the same time, it should be acknowledged that by discussing ‘sovereignty’ as its object of study, this analysis itself partakes in the reconstitution of sovereignty as an institution of international relations. Whereas objectivity and distance are crucial parameters to our scientific endeavours, the subject matter of social sciences renders the absolute distinction between object and subject problematic. If sovereign statehood can be meaningfully addressed as a discursive fact, as this book will claim, then it is reconstituted by any narrative in which it features. ‘What “we” are’, Ringmar (1996: 452) perhaps somewhat provocatively maintains in this regard, is ‘neither more nor less than the total collection of stories that we tell and that are told about us’. If this holds for humans as supposed natural beings, it is arguably even more germane for sovereign states as human arrangements or social conventions. As such, this study is not an innocent enterprise, but adds to the stories, academic though they may be, that (re)constitute sovereign statehood as such.

Such a reflective stance also bears upon the kind of analysis embarked on in this book. Insofar as it aims to clarify our understanding of the workings of sovereignty on an abstract level, it can be identified as a theoretical analysis of the concept of sovereign statehood. However, it diverges from traditional conceptual analyses in their endeavour to develop a clarified concept by tracing the lowest common denominator(s) of all known empirical instances of sovereign statehood. The ultimate aim in that case is to find the holy grail of its essence and finally fathom this protean concept. Conversely, following up on constructivist insights, this book moves away from the practice of identifying cases of statehood by distilling their essences, in order to focus on the broader context in which the meaning and rules of sovereignty emerge and change. This is not a question of training the eyesight, as traditional conceptual analysis allegedly implies by prompting us to look better for empirical details and divergences. Rather, it requires new conceptual tools and, agreeing with Charles Manning, a special kind of thinking: ‘[F]or this purpose it is a special kind of thinking, to be undertaken in a special kind … of thinking cap, and not just sharper eyes, … that we shall require’ (Manning 1962: 32). As aforementioned, in the following the possible components of the ‘thinking cap’ needed for gaining insight in – rather than (eye)sight of – the daunting issue of sovereign statehood is developed step-by-step by discussing various conceptualizations of sovereignty: as an institution, an identity, a language game and as subjectivity.

Structure of the book

The structure of this book reflects this approach. Rather than presenting a theoretical framework in the first chapter, it is developed along the way. The analysis proceeds through discussing different perspectives of sovereignty, resulting in what might best be described as an incremental approach or cascading argument. It develops its case by discussing how different strands of IR theory have contributed to the conceptualization of sovereignty, as well as pinpointing possible gaps or even ambiguities with the premises the respective approaches themselves ascribe to. It will be argued that this requires metatheoretical reflection of the (implicit) ontological and epistemological premises too. This engaging approach hopefully results not only in a less antagonistic approach than often transpires from the debates between different theoretical camps, but also shows how the approaches relate to and diverge from each other in their analysis of a key concept of international relations. It will be argued that, like a hologram, all perspectives shed light some aspects of sovereignty but fail to account for other dimensions. The overall aim is to investigate their respective contribution to gaining insight in the concept of sovereign statehood by means of the ‘sovereignty–law–society’ triad, rather than to prove one or the other theoretical perspective to trump all the alternatives, so to speak. At the same time, the line of argumentation as reflected in the sequence of chapters is not arbitrary, and in that sense the discussion is envisaged as a cumulative debate, that digs deeper into the workings of sovereignty as the chapters progress.⁴ Altogether this leads to a richer understanding of sovereignty as key principle and politico-legal practice. However, if there indeed is such cumulation, this will not lead to a final resolve of the sovereignty question as its climax. As the book hopefully makes clear throughout, it sees any project to fix the meaning of sovereignty as a misguided one.

The analysis proceeds as follows. Chapter 2 commences with probing the Westphalian narrative. Whereas the historical accuracy of this ‘story of origin’ is highly dispute...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Series editor’s preface
• Acknowledgements
• List of abbreviations
• 1 Introduction
• 2 Narratives of origin and change
• 3 Sovereignty as institution
• 4 Sovereignty as identity
• 5 Sovereignty as a (language) game
• 6 Sovereignty as subjectivity
• 7 Conclusion
• Notes
• Bibliography
• Index