Sovereignty and Structure
SOVEREIGNTY AND STRUCTURE
International law shapes global politics into a legal order not only by legally validating some claims of sovereign power and refusing to validate others. International legal norms that perform this validating function also effectively produce an ongoing distribution of sovereign power among geographically concentrated collectivities that international law recognizes as States. International law has recognized the sovereign power of some States for centuries, with the 1648 Treaty of Westphalia, discussed in more detail in Chapter 5, often portrayed as sovereignty’s first moment of recognition. In other cases, international legal recognition has been much more of a recent phenomenon. Namibia, for instance, acquired sovereignty roughly twenty-five years ago. And, of course, international law also withholds legal recognition of claims of sovereign power from other collectivities that it does not recognize as States. Although indigenous people now formally enjoy extensive rights of internal self-determination in international law,1 for example, they do not—by virtue of their indigeneity—possess a right of external self-determination that would enable them to acquire sovereign independence from the States in which they are located. The legal norms that international law relies on to perform these tasks render the distribution of sovereignty they produce capable of recalibration and realignment in light of new political developments deemed to possess international legal significance.
International law thus extends legal validity to the exercise of sovereign power by States and performs an ongoing distribution of sovereignty among those collectivities it recognizes as States. This chapter examines in more detail these two contributions that the concept of sovereignty makes to the structure of international law. It does so because they constitute the terrain on which international human rights legally operate. The legal norms that international law relies on to distribute and authorize the exercise of sovereign power have been defended for numerous reasons, including the need “for a presumptive monopoly of the last word on public order in any given territory.”2 Sovereignty also possesses a measure of normative purchase to the extent that people can and do flourish by being organized into particular political communities and, in doing so, generate a complex set of interests that merit protection.3 And, although it does not guarantee it, “sovereignty protects the normatively special status of members and their prerogative to assess the legitimacy of their domestic system, and to struggle to make it more just, more democratic, and more inclusive.”4 Despite these and other values associated with the role that sovereignty plays in lending structure to the international legal order, it also produces an array of adverse consequences that international human rights, on the account offered in this book, seek to rectify.
Subsequent chapters focus on adverse consequences that arise from the fact that international law extends legal validity to the discretionary exercise of sovereign power by States (Chapter 3); that international institutional arrangements provide legal validity to processes of economic globalization and transnational production (Chapter 4); that international law episodically transfers the power to govern peoples and territories from some sovereign legal actors to others (Chapter 5); that some collectivities have their sovereignty legally recognized for centuries while, for others, international legal recognition is a recent phenomenon (Chapter 6); that sovereign legal authority vests in some collectivities and not others (Chapter 7); and that the international distribution of sovereign power participates in the production and reproduction of global poverty (Chapter 8).
SOVEREIGNTY AND ITS EXERCISE
The central feature of the structure and operation of international law is the concept of sovereignty that lies at its heart. Sovereignty means different things, at different times, to different people, for different reasons. It can be imagined as resting in a divine being, an individual, a group of individuals, or an institution or group of institutions. It can be imagined as absolute or limited, or both, as in one of its earliest formulations by Jean Bodin, who defined sovereignty as absolute power limited only by the power of God.5 It can be imagined as inherent in a people, as in Jean-Jacques Rousseau’s account of sovereignty as the general will of a people,6 or contingent on the consent of people, as in the Hobbesian account of the State as the result of a social contract among individuals to escape anarchy.7 It can be indivisible, as in the case of a unitary State, or divisible, as in the case of a federal State. Sovereignty can be “pooled,”8 “mixed,”9 “pre-,”10 “post-,”11 even “floating.”12 It can be understood in factual terms, as a concept that organizes social, economic, and political life by the distinctive constellation of power to which it refers; in normative terms, as a constellation of power that vests only in those entities that possess legitimate authority to rule people and territory; and in legal terms, as power that vests in an entity lawfully entitled to its exercise.13
Cutting through some of this definitional maze, Stephen Krasner offers a fourfold typology of sovereignty’s meaning. According to Krasner, sovereignty can refer to a State’s international legal sovereignty, “Westphalian” sovereignty, domestic sovereignty, and interdependence sovereignty.14 International legal sovereignty refers to practices primarily associated with the mutual recognition and formal equality of States. “Westphalian” sovereignty refers to a State’s capacity to exclude external actors from exercising legal authority on its territory and over its population. Domestic sovereignty refers to internal structures of State power and the capacity of the State to exercise effective control within its territory. Interdependence sovereignty refers to a State’s capacity to regulate movements of people, ideas, goods, capital, and the like across borders. Because Krasner construes sovereignty in terms of capacity, different States can manifest different degrees of these variants of sovereignty. A State like Taiwan, he notes, “has Westphalian sovereignty but not international legal sovereignty.”15
For the purposes of understanding the structure that sovereignty lends to international law, the relevant question is not which, or which combination, of sovereignty’s multiple characterizations best conceptualizes its true nature. Instead, it is to inquire into sovereignty’s meaning in international law. In J.L. Brierly’s words, sovereignty is “an aggregate of particular and very extensive claims that states habitually make for themselves in their relations with other states.”16 In international law, sovereignty means more than what Krasner refers to as “international legal sovereignty” and also includes elements associated with the other variants that he identifies.17 Specifically, it refers to what international law recognizes as the legal power of a State to rule people and territory. International law confers legal validity on claims by States to extensive coercive power over people and territory by conceptualizing this power as State sovereignty, and it vests States with legal authority to exercise this power at home and abroad. What Paul Kahn wrote about domestic law is equally true of international law: “morality may be without borders, but law’s rule begins only with the imagination of jurisdiction.”18
But international law does not accept as given what States imagine is theirs as of sovereign right, no matter how habitually such claims might occur. In a dizzying array of contexts, much of international law regulates the exercise of sovereign power by identifying its constituent elements and managing its limits. Does sovereignty entitle a State to divert its natural water supply in a way that affects the water supply of a neighboring State? Does sovereignty authorize a State to wage war against another State? Does it entitle a State to abuse the human rights of its citizens? Does it immunize State officials from criminal prosecution in another State?
Moreover, international law does more than regulate the exercise of sovereign power. It determines who possesses sovereignty. It establishes sovereignty’s international legal existence. Sovereignty in international law refers to what the international legal order recognizes as the aggregate of valid claims that States make in their relations with other States. These claims can be about a State’s relations with other States, as in Krasner’s conception of international legal sovereignty, but they can also be about a State’s relatively exclusive power to exercise domestic, transnational, and international legal authority in relation to matters that bear on its territory and population. As subsequent chapters seek to demonstrate, international human rights legally operate to mitigate some of the adverse consequences associated with the fact that international law entitles States to exercise sovereign power both internally, in relation to people and resources on its territory, and externally, in its relations with other States and in international arenas.19
It is not particularly controversial to defend the view that international human rights operate to check the exercise of internal sovereign power. This is a commonly held view of international human rights, whether one understands human rights from a moral, political, or legal perspective. Where these perspectives begin to diverge is in relation to the reason or reasons human rights check the exercise of internal sovereign power. From a moral perspective, they do so to protect interests that transcend the significance of State sovereignty because they relate to universal features of what it means to be a human being. From a political perspective, Charles Beitz argues that the framers and early advocates of contemporary international human rights law viewed “World War II and its precipitating events as evidence of a structural deficiency in the system of states as it then existed.”20 As evidenced by the practice of their framers and early proponents, the normative purpose of human rights, for Beitz, is to address “pathologies of a global political structure that concentrates power at dispersed locations not subject to higher-level control.”21
The legal account advanced in this book shares important affinities with political perspectives on human rights. It too requires international law to attend to pathologies of its own making. One set of pathologies that human rights address, as Beitz notes, is a product of the fact that international law vests States with international legal authority to exercise sovereign power over people and territory in ways that harm interests that legal instruments deem to be associated with human rights. But this account is less concerned with the normative dimensions of human rights as a discursive political practice and is more concerned with the normative role they perform in the constellation of international legal norms in which they find themselves—in other words, in the structure and operation of international law itself.
It is more controversial to also defend the proposition that international human rights check the exercise of external sovereign power, namely, a State’s relations with other States and in international arenas. Take the fact that a State’s sovereign power includes the legal capacity to enter into legally binding bilateral and multilateral agreements to structure and manage its relationships with other sovereign States. Because international law vests States with international legal personality, a State is legally entitled to expand or restrict the scope of its sovereign power by entering into a treaty with one or more sovereign States. A treaty has the capacity to alter the distribution of sovereignty by enlarging or reducing the territory over which a State can legally claim sovereign power. But a treaty can also expand or limit the jurisdictional scope of authority that sovereignty vests in a State. A treaty can create legally binding obligations on signatory States to exercise their sovereign powers in certain ways and not others and in relation to certain matters and not others, and a failure by a signatory State to comply with the terms of a treaty constitutes a violation of international law.
Many of the international organizations that currently play a major role in managing and coordinating relations between and among States, such as the United Nations, the World Bank, and the International Monetary Fund, owe their international legal existence to a raft of multilateral treaties resulting from an unprecedented burst of international cooperation after the Second World War. Not all international organizations owe their origins to this period. The International Labour Organization, created in 1919 as part of the Versailles peace negotiations, has a longer institutional pedigree, and the World Trade Organization was established much more recently in 1995. These international organizations give institutional voice and legal effect to a vast array of international interactions between and among sovereign States by subjecting States to various forms and degrees of international legal authority, including legislative, regulatory, and adjudicative authority, the monitoring and enforcement of treaty obligations, agenda setting and norm production, research and advice, and policy implementation.22 If established by treaty, these arrangements are typically binding in international law, but their institutional design and their distributional consequences remain beyond the normative purview of an account of international human rights defined as instruments that seek to regulate the relationship between the individual and the State in order to protect interests that we all share as humans.
The limited normative reach of standard moral accounts of international human rights law reveals itself in the context of contemporary bilateral and multilateral agreements that mandate reciprocal tariff reductions and the elimination of non-tariff import barriers by signatory States. Such agreements typically are premised on the assumption that regional and international liberalization of trade, services, and investment enhances global productivity by enabling economic actors to compete on the basis of comparative advantage, that is, the capacity to produce a product at a comparatively lower cost than other economic actors because of particular resource or regulatory endowments associated with the national economies in which production occurs. Because international law stipulates that a State possesses the legal capacity to create mutually binding rights and obligations by entering into a treaty with another State or group of States, these agreements legally structure economic relations among States by imposing legal obligations on States to exercise their sovereign power in particular ways and, in some cases, by establishing organizations that possess the legal authority to interpret and enforce their terms.23
Such is the case with the World Trade Organization. The WTO is the legal foundation of the world trading system: it establishes and enforces rules that foster liberalization of trade, services, and investment. WTO members meet periodically to attempt to reach agreement on the reciprocal reduction of import tariffs. To ensure that States do not attempt to establish protective measures through means other than tariffs, WTO members also undertake three standard sets of obligations whose purpose is nondiscriminatory treatment of products by States in each other’s markets. First, the principle of most-favored nation treatment requires a member State to accord the same favorable treatment to the import of like products from all member States that it accords to one member State. Second, the principle of national treatment provides that a country cannot discriminate against like products imported from another State in ways that benefit national producers. Third, the WTO requires all countries to eliminate quantitative restrictions, such as quotas or embargoes, against goods imported from other States. Together with periodic reciprocal tariff reductions, these requirements enable foreign producers to compete more fairly with domestic producers in the markets of member States.24
When a State exercises its sovereign power in international arenas, whether it is in the WTO or some other international institution or setting, it has the capacity to participate in the production of international legal norms that lead to adverse consequences for individuals and groups both within and beyond its territory. In addition to checking the exercise of internal sovereign power, international human rights operate to mitigate certain consequences associated with the fact that international law vests in States the authority to exercise external sovereign power. Chapter 4 advances the view, for example, that international labor rights not only stipulate that a State cannot wield its sovereign power domestically in ways that compromise or threaten interests they seek to protect. They also guard against the possibility that States, when exercising their sovereign power on the international stage, might establish legal norms that validate the exercise of economic and political power that harms workers. In a similar vein, Chapter 8 argues that the right to development imposes a negative obligation on States when exercising sovereign power in the international arena not to fashion rules and policies in ways that exacerbate global poverty.25 But whether a State exercises internal or external sovereignty, the reasons international human rights hold States to account are internal to the structure and operation of international law. They represent normative judgments that international law’s creation and distribution of spaces known as sovereign States produce adverse consequences that require rectification in the form of human rights.
BETWEEN THE NATIONAL AND INTERNATIONAL
Some argue that the way in which international law conceives of these legal spaces has evolved from an absolute to a conditional conception of sovereignty and that this evolution is critical to understanding its function in international law. In the afterword to the second edition of his influential book, BASIC RIGHTS, published in 1996, Henry Shue argued for “building a general, global consensus that state sovereignty is conditional upon the protection of at least basic rights and that the international community not only may but ought to step in when the failures of states to protect rights becomes egregious.”26 That same year, drawing on the work of Frances Deng,27 the Report of the International Commission on Intervention and State Sovereignty noted that the reality of global interdependence has steadily eroded international law’s traditional understanding of State sovereignty as an absolute sphere of power limited only by international law itself.28 Its authors argued that absolute sovereignty yielded a principle of nonintervention that underpins international law’s traditional reluctance to countenance humanitarian intervention. Gradually replacing this absolute conception is a more conditional understanding of sovereignty that generates a principle of responsibility. Under this conditional conception, international law vests sovereignty in a State to enable it to protect its people. If a State fails to meet this duty, according to the ICISS, and its population is suffering serious harm in the form of gross human rights abuses,29 the principle of nonintervention yields to an international responsibility to protect that population from harm by, if necessary, military intervention.30 The U.N. General Assembly subsequently endorsed the “responsibility-to-protect” doctrine in its 2005 World Summit Outcome,31 as did the Security Council in resolutions authorizing the use of force in Libya in 2011.32
Others have taken the concept of conditional sovereignty to another level by characterizing international law as exhibiting properties of “global constitutionalism”33 and by linking the international legal order and domestic legal orders much more closely than contemplated by the “responsibility-to-protect” doctrine. In addition to affirming the emergence of the concept of conditional sovereignty in international law, Anne Peters, for example, conceives of global constitutionalism as a means of combating what she refers to as “anti-constitutional trends” occurring in domestic legal orders by providing norms beyond the State that shore up domestic commitments to key elements of constitutionalism, including respect for the rule of law and human rights.34 Part of the project, too, is to imagine the international legal order as a global constitutional order, one that does not mimic the structure of domestic constitutional regimes but instead, through its own unique structural arrangements, displays commitments associated with constitutionalism and the rule of law, thereby imbuing the international legal order with a measure of normative legitimacy.
One illuminating consequence of comprehending the international legal order through the lens of constitutionalism is that it opens the door to seeing the relationship between national and international law in new ways. Mattius Kumm, for example, writes that this relationship reveals itself to be one of “mutual dependence.”35 “The constitutional legitimacy of national law depends, in part, on being adequately integrated into an appropriately structured international legal system,” according to Kumm, “[a]nd the legitimacy of the international legal system depends, in part, on states having an adequate constitutional structure.”36 For Peters, international and domestic legal orders work together to ensure respect for human rights and principles of constitutionalism.37 For Evan Fox-Decent and Evan Criddle, the relationship between international and domestic legal orders is a fiduciary one: “international law entrusts sovereign powers to states, subject to concomitant duties to advance the human rights of their own people and respect the fundamental rights of foreign nationals beyond their borders.”38
Jean Cohen conceives of the relationship between domestic legal orders and the international legal order in dualistic terms, with relatively autonomous sovereign States embedded in a relatively autonomous international legal order that manifests rudimentary attributes associated with constitutionalism. She identifies the need for the advancement of the rule of law in international law in ways that protect both the sovereign equality of States and human rights. Unlike most proponents and opponents of global constitutionalism, however, Cohen argues that this project must be approached on terms that shift the dualism of the present to what she terms a “constitutional pluralism” of the future. Constitutional pluralism, for Cohen, involves “a complex of political communities within an overarching political association of communities each of which has its own legal order of constitutional quality.”39
Any constitutional pluralism immanent in the international realm is the product of international law’s deployment of sovereignty as a legal entitlement to structure global politics into an international legal order. And how international law conceives of sovereignty—as absolute or conditional—is not as relevant to the structure that it lends to the international legal order as the fact that sovereignty itself is an international legal entitlement. If sovereignty was absolute before, it was because of international law, and if sovereignty is conditional now, this too is because of international law. The absolute nature of sovereignty in international law, if it ever existed,40 never lay beyond international law; it was an international legal product. And even if it did exist, it was absolute only in the sense that it was not subject to the authority of another State.41 It was and is subject to international law.42 Human rights operate in international law to secure a measure of legitimacy for the role that sovereignty plays in constituting the structure of the international legal order. The sovereignty to which international human rights law gives rise—the sovereignty of human rights—is one that is tempered to address adverse consequences that flow from its deployment.