Why does sovereignty matter in international politics

In both theory and in practice, sovereignty is assumed to be an axiomatically universal condition of political organisation through associating Western knowledge structures with universal sociological conditions. Sovereignty thus becomes associated with positive sovereignty under assumptions of totalised forms of political organisations, that is that the conditions which provide political stability in the West are assumed to be ubiquitous. Conceptually, this provides a good basis to analyse the failings of development theories, as well as the latent ethnocentrism in conceptual narratives on the characteristics of what are taken to be the benchmarks of statehood.

Sovereignty thus paradigmatically reinforces an affection for positivist approaches to global problems under the premise that historically novel Western experiences can be totalised to ahistorical formulae this is textually represented in discursive constructions of development , and furthermore the universalised categories of statehood exist as a hegemonic device, ensuring the epistemic dominance of Western thought underwritten by the idea that the capacity to define the ontological characteristics of statehood lie exclusively with the West.

In practice, this hierarchy is visible in contemporary and historical intervention in the global south. It is worth noting that there has been essential continuity in the construction of the relations between the Orient and Occident with respect to this, as interventionism today is justified under the assumption that the West is the sole protector of human rights in international relations.

Affording primacy to sovereignty as a mode of political organisation in international relations has established the West as the overarching intellectual authority in global politics, such that the normative benchmarks for statehood are assumed to be solely Western. In practice, establishing the West as the site of epistemic supremacy has led to the evaluations of state development and modernity only in respect of European standards, underwriting myopic applications of solutions to problems which existed in a specific ethnic temporal and spatial context.

Bartelson, J. A genealogy of sovereignty. Cambridge: Cambridge Univ. Press, p. Boucher, D. Political theories of international relations.

Oxford: Oxford Univ. Brohman, J. Third World Quarterly , [online] 16 1 , pp. Capan, Z. Decolonising International Relations?. Third World Quarterly , [online] 38 1 , pp. Dickerson, M. An introduction to government and politics. Toronto: Nelson Canada, p.

Epstein, C. The postcolonial perspective: an introduction. International Theory , [online] 6 02 , pp. Fanon, F. Black skin, white masks. New York City. Finnemore, M. New York: Cornell University Press, p.

Havercroft, J. Hobbes, Bellarmine, and the norm of non-intervention. Global Constitutionalism , [online] 1 01 , pp. Hill, J. Beyond the Other? A postcolonial critique of the failed state thesis. Secondly, even as agents of international law, sovereign states cannot be said to be the beneficiaries of the international rule of law at — This would not be true of domestic officials within a state, and the argument applies even less well to sovereign states as officials of international law.

He denies sovereign states respect for their freedom or residual autonomy in the international legal order on the basis of the dis-analogy between state sovereignty and individual autonomy at — Jeremy Waldron's argument in this article is seminal and timely. The conventional and individualizing view of states and sovereignty obfuscates much of what is at stake in current discussions of the legality and legitimacy of international law.

Agreeing with most of the argument in the article 2 makes it difficult to provide a radically different answer to the questions Waldron raises, 3 and hence to propose a critical response. Of course, one may quibble with some minor passing statements, 4 but this would not take anything away from the main points made in this article and would not be very constructive. What I would like to do therefore is take Waldron's reasoning a step further and develop three potential implications of his argument.

These are implications pertaining to international law's legitimacy, and its democratic legitimacy in particular, and international legal validity. My argument is that it is difficult to discuss the rule of law without some normative assumptions or implications about the law's legitimacy or legitimate authority and hence the law's validity.

I will try to unpack what those could be. I will also argue that Waldron himself is making some of those assumptions in his article, especially towards the end.

More specifically, I would like to argue that some of the normative assumptions made in a discussion of the rule of law are democratic. It is difficult indeed to mention the rule of law without questioning whose rule, or at least whose law, it is we ought to be concerned with, especially in a multi-layered political context where international institutions, states, decentralized entities and individuals are affected.

Although section 2 of the article, where Waldron defines the rule of law, does not mention democracy, the connection follows clearly from Waldron's earlier work on the rule of law 5 and on normative legal positivism. It would also be important to know how in practice he would suggest we reconcile the contradictory requirements made on sovereign states and individuals by democratically legitimate domestic legal norms, on the one hand, and international legal norms legitimated on proposed other grounds, on the other.

My first set of comments pertains to the implications of Jeremy Waldron's argument for the legitimate authority of international law. After clarifying how international law may have legitimate authority over sovereign states, I will look closely at what residual autonomy they may claim in the name of state sovereignty. International law rules and the rule of international law implies authority over its subjects. Sovereign states are the primary subjects of binding international law norms.

Interestingly, one of the main challenges to the legitimacy of international law is that it allegedly fails to respect the sovereignty of states, intruding upon domains in which they should be free to make their own decisions. By analogy to individual autonomy, state sovereignty is often understood in international law as a competence, immunity, or power, and in particular as the power to make autonomous choices so-called sovereign autonomy.

Just as the legitimate authority of domestic law is often opposed to individual autonomy, the legitimate authority of international law is taken to contradict state sovereignty. Following the analogy between states and individuals entering private contracts, sovereign states have traditionally been held as being able to bind themselves as free rational agents.

For a long time, and following the consensualist paradigm in international law, this was actually the only way in which the legitimate authority of international law over sovereign states could be justified. The paradox of sovereignty, however, is that states must be capable of binding themselves if international law is to exist, and also incapable of binding themselves through international law if they are to be absolutely independent.

Among the different ways out of the paradox, self-limitation was deemed the least objectionable. This is explained by reference to the idea of normative immediacy, famously captured by the International Court of Justice ICJ in the Wimbledon case, 9 according to which those states that are immediately bound by law are the only sovereign and legal persons in international law and vice versa.

This approach is misleading and no longer in line with modern international law, however. To start with, consent does not provide a sound justification for the authority of law tout court. Moreover, many international law norms can no longer be drawn back to state consent in their law-making process anyway. Finally, they can actually bind other international subjects than states consenting to them and a consent-based justification would leave a large part of international law unaccounted for.

There is another more promising way to justify the authority of international law on sovereign states, but also on their populations and on international organizations that is in line with the account of sovereignty proposed by Waldron in his article.

In order to account for the legitimacy of international law and justify the latter's exclusionary and content-independent authority, it is important to start by presenting how international law can provide reasons for action that correspond to those applying to sovereign states, and hence enhance their sovereignty the dependence condition , before explaining in a second stage why those reasons can be said actually to exclude reasons that apply to sovereign states the normal justification condition.

First of all, a few clarifications pertaining to the justification of authority are in order. According to the service conception of authority propounded here, i. The application of the service conception has a pre-requisite therefore: the subject bound by a legal norm needs to be an autonomous subject, as this is the only way that its freedom to choose from a range of options can be furthered by an authoritative directive.

Autonomy, in other words, does not mean freedom from duties, but only from those which do not correspond to objective reasons that apply to the autonomous subject and which do not help the subject to respect those reasons.

A subject is autonomous if his freedom is complete for the purposes of leading a good life. The analogy between authority for states or other institutional subjects of international sovereignty, on the one hand, and individuals, on the other, presupposes therefore that the value of autonomy extends to the choices and actions of states.

At first sight, it seems plausible that it does, given the value of shared membership of a national political community and, as a result, of the collective self-determination of such communities. The problem highlighted by Waldron is that the value of state autonomy can only be explained in terms of the autonomy of the people constituting it.

States are quite unlike individuals when it comes to the value of their autonomy. By analogy with an individual but also because of the imperfect analogy with an individual, sovereign autonomy is even more clearly dependent on the purposes of being a good polity, i. This is regrettable as the legitimacy of the law the rule or authority of which is at stake is arguably part of why that rule or authority is valuable and of interest.

When a state is morally bound by a norm of international law, the duties imposed on it will require action that burdens individuals either indirectly, through international state action that is costly to national resources, or directly through the duty to enact domestic laws in order to transpose international law into domestic law or implement the latter directly in the domestic sphere.

It also explains why the autonomy of states and its ability to bind and to be bound depends on its constituency's autonomy and hence on its ability to represent the latter. States can bind and be bound by international legal norms only when they represent those subjects as officials and hence can bind them as proxy subjects of international law.

This approach actually has the advantage of providing a single legitimacy concept applicable to all sources of international law and to all subjects of international law duties, whether states, international organizations, or individuals, as all of them are reducible eventually to individuals. Of course, states remain free rational, albeit artificial, agents, and as such they can enter into binding agreements the way an individual would enter a contract.

This can be the case for many contract-like treaties and other international agreements, although consent does not necessarily bind in all cases. The opposite view would simply strip states from their right to bind themselves, and hence from any of the meaningful implications of their quality as primary international legal subjects.

But populations unrepresented by those states would not be morally bound by those legal directives qua legitimate law. Nor could those states be accordingly. Secondly, for the authority of international law to be actually justified and hence legitimate, the reasons international law provides should not only match pre-existing reasons of sovereign states, i. Authoritative reasons should also be able to preclude those reasons by helping the subjects to respect them better than they would on their own.

This is the second condition of the legitimate authority of international law: the normal justification condition. Justifications that comply with the normal justification condition can be numerous and range from cognitive or volitive qualities to coordination abilities.

In the circumstances of reasonable disagreement and social and cultural pluralism that prevail globally and even more severely among states, I have argued elsewhere, drawing on Waldron's previous work on coordination and authority for officials, 14 that coordination provides one of the best justifications for the legitimate authority of international law, even outside clear coordination problems.

What democracy requires in international law-making and between sovereign states will be addressed later on in this reply. Interestingly, even when the conditions for the legitimate authority of international law over sovereign states are fulfilled, there could still be some matters over which it is more important for a sovereign state to be able to decide independently.

This is by analogy to what applies to individuals: it is important that, in some cases at least, a person reaches and acts on her own decision, rather than take a putative authority's directives as binding, even if doing the latter would result in decisions that, in other respects, better conform to reason. In general, it is difficult, however, to distinguish those cases from cases where legitimate authority can apply, the incompatibility being at the most contingent and relative to certain circumstances.

The contingency of the independence condition is even more clearly the case in international law. If states are deemed officials both qua law-makers and qua proxy-subjects of authority in the international legal order, their independence, as Waldron argues, cannot simply be equated with that of any of their domestic legal subjects.

Considered in both its internal and external dimensions, a state's sovereign autonomy is, says Waldron, a legal construct, not something the value of which is to be assumed as a first principle of normative analysis. In its internal dimension, the state works as a legal organization — it is the outcome of organizing certain rules of public life in a particular way.

Its sovereignty is artificial and it is legally constructed for the benefit of those whose internal interests it protects. In its external dimension, the sovereignty and the sovereign autonomy of the individual state are equally artefacts of law. What a state's sovereignty is and what it amounts to is not given as a matter of the intrinsic value of its individuality, but determined by the rules of the international legal order. Those rules define state sovereignty so as to protect the internal and external interests and values of a given political community qua sovereign equal to others, but also to protect the interests of their subjects.

If Waldron's argument is correct in that respect, which I think it is, we may want to go one step further and draw conclusions from the dis-analogy between sovereign autonomy and individual freedom for the residual independence of sovereign states under international law and the circumstances under which one may argue that a sovereign state ought not be bound by international law even when the latter is legitimate.

To start with, the potential cases of incompatibility between the legitimate authority of international law and state sovereignty are likely to be even more contingent in the international legal order than in the domestic context. Moreover, one of the values of sovereignty being self-determination, it is clear that decisional independence is of value in the case of sovereign states as well.

Finally, given the circumstances of social and cultural pluralism that prevail globally, it is likely that state autonomy can be exercised valuably in very different manners. All this makes self-determination over certain matters as important in the case of sovereign states as for individuals, albeit for different reasons.

In sum, state sovereignty is not necessarily compatible with the authority of international law. It is only the case when the latter has legitimate authority, i. Those can be understood by reference to the values that make a good state, or more generally a good political entity, such as self-determination, democracy, and human rights, but also the values that make a good international community of equal sovereign entities.

Of course, this should not be taken to mean that state sovereignty is incompatible with international law's authority only when it is illegitimate.

There may be cases where autonomy requires legitimate authority, but others where self-direction is valuable despite the prima facie justification of international law's authority. It protects the plenary jurisdiction of that sovereign State over its territory and the people on it.

This is a principle of customary international law. Of course, in view of what was explained before regarding the limits to State sovereignty, jurisdiction is never absolutely plenary.

This dates back to the idea of international immediacy, famously captured by the ICJ in the Wimbledon case at According to this idea, sovereign States are immediately bound by law and as a result the only original legal persons able to produce valid international legal acts. Their full legal personality and right to co- regulate the life of the domestic and international community is an important right to secure their independence.

Of course, given what was said earlier about the official role of sovereign States in international law-making and the correlated duties, the presumption of legality of sovereign acts needs to be nuanced. Further, legality does not yet imply legitimacy, as discussed before.

Furthermore, IOs, and to a certain extent individuals, have now become international law-makers in certain international regimes. It can be equated with self-determination, at least when it pertains to the institutional autonomy of existing sovereign States.

Thus, questions largely unanswered to date include the relationship between State sovereignty and self-determination in case of conflict. Another difficult question is whether international law actually can set limits over the right to self-determination when it goes further than a right to institutional autonomy and is said to include the right to become a sovereign State in the first place.

Another connected issue pertains to the positive dimension of the right to self-determination and more particularly its democratic implications. Pushed to its full normative conclusions and in line with the values of good polity underlying modern sovereignty indeed, self-determination triggers minimal democratic duties in the laying-out of the governmental regime on the part of each sovereign. According to Art. International law defines what those matters are see Nationality Decrees Issued in Tunis and Morocco [French Zone] [Advisory Opinion] 23—4 and it is an evolutionary notion as a result.

Those main sovereignty duties are listed, among others, in Art. State immunities and all correlated immunities have long been protected under international customary law par in parem non habet jurisdictionem and have recently been codified through international treaties United Nations Convention on Jurisdictional Immunities of States and Their Property [].

They have radically evolved in the past 20 years, however, to become more limited overall. Some may argue, although this is still controversial, that this is because they can no longer protect sovereign States against another State jurisdiction when what is protected by those immunities does not correspond to the values State sovereignty is meant to protect in the first place and for which sovereignty is actually protected; the best example would be aggravating human rights violations.

This includes legal duties, of course, but also moral duties to support a just international system and the international rule of law. The moral duties to obey international law qua law are more complex and have been addressed in the previous section. Importantly, those direct duties to abide by international law, together with the legality of sovereign acts pertain exclusively to States.

States are no longer the only subjects of international law, however, and other subjects, such as IOs and individuals, are increasingly vested with direct duties under international law, duties that cannot be explained through the prism of State sovereignty but may be through the modern conception of popular sovereignty. The only exceptions are humanitarian intervention and authorized intervention see also Intervention by Invitation.

This is a principle of customary international law that has also been codified under Art. Even though they have a choice of means eg Art.

This is a principle of customary international law that has also been guaranteed under Art. In a multi-level international legal order where States are increasingly interdependent and where international and supranational organizations are gaining in importance Supranational Law , paradigms of sovereignty are being revisited faster than they have ever been before in the history of the concept. Some of those issues have been discussed in previous sections, but two of them will be addressed in more detail here: the relationship between sovereignty and human rights; and the relationship between sovereignty and democracy.

As argued before, this approach is misleading given the parallel development of modern sovereignty and international human rights in the second half of the 20 th century.

Given the lack of consensus on minimal democratic requirements and in view of the intricate relationship between human rights and democracy, entrenching human rights protection from the outside through minimal international standards became the way to guarantee their new democratic regimes.

International sovereignty objectively limited in this way became, in other words, a direct way to secure domestic sovereignty in a legitimate fashion. As a result, modern democratic sovereignty now finds its source both in constitutional and international law. And those peoples organize and constrain their sovereignty through both the international and domestic legal orders. Importantly, international sovereignty protects a collective entity of individuals—a people—and not individual human beings per se.

True, their fates are connected, in the way democracy and human rights are correlated. Thus, the tensions between international human rights and State sovereignty are reminiscent of those between popular sovereignty and human rights in the domestic context. The difference is that one of them is international while the other remains domestic. This actually explains why those tensions ought to be resolved within the domestic context where democracy and human rights are in a mutual relationship.

However, given the value of both individual and collective autonomy in the human rights context and their potential contradictions, two different consequences follow depending on the kind of international human rights norms at stake. Sovereignty can only protect political autonomy when it exists in a normative sense; it cannot therefore be opposed to the legitimate authority of the international human right to have rights.

In such a case, self-determination is undermined and sovereignty forfeited. Those mechanisms imply some kind of international institutional framework through which other States but mostly individuals can initiate claims against a sovereign State.

In case of massive human rights violations, and as a last resort, humanitarian intervention may be on the cards. Some authors argue, however, in view of the limited scope of action of the Security Council and the humanitarian disasters this system may condone, that there may be cases where humanitarian intervention by a coalition of States may be morally permitted or may even constitute a moral duty. This triggers well-known controversies pertaining to the moral right or the duty to intervene and to the exact right-bearer s and duty-bearer s of that intervention and in particular whether they encompass other States and populations than that of the victims.

A common view is that, when a sovereign State cannot respect its primary duties to protect human rights on a large scale and hence forfeits its sovereignty in a sense, other States would be justified in intervening collectively to prevent genocide for instance or a default duty to intervene might even ensue if the costs are not disproportionate for the intervening States.

What is essential and still difficult for such an approach, however, is the determination of the threshold at which the minimal right to have rights is violated and sovereignty forfeited and hence intervention becomes justified or compulsory. It is still unclear whether that principle has binding force and in particular whether it has binding force as customary international law.

The exact scope of its divergence from the current legal regime of humanitarian intervention also remains to be established. When the international legal norms at stake pertain to the basic rules of political legitimacy at the domestic level and to the details of human rights protection, both international sovereignty and international human rights law have met their intrinsic limitations. Deciding on what makes us members of a political community and how to protect our equal rights as such is likely to be the last issue to leave the scope of collective self-government and hence of sovereignty.

Hence, for instance, the application of principles such as the State margin of appreciation or proportionality in international human rights adjudication. The international legal order protects the political equality of individuals within the domestic polity through the interdependence and complementarity between equal State sovereignty and international human rights: by guaranteeing the basic conditions for political equality through the right to have rights and to self-determination, on the one hand, and through the principle of equal State sovereignty and political autonomy for the rest, on the other.

Human rights and sovereign equality are the two complementary pillars of a dualist international legal order Cohen []. As in the human rights context, however, this approach to their relationship is misleading. As they benefit from the principle of sovereign equality, requiring them to be democratic seems to be an invasion of their sovereignty. This corresponds, however, to the classical view of sovereignty in international law where the political regime was a matter of internal sovereignty and hence left to domestic law.

During the second half of the 20 th century, democratic requirements on States have multiplied in international law, qua human rights duties eg political rights, right to self-determination but also per se. One may mention the international human right to democratic participation in this respect Democracy, Right to, International Protection.

Examples of such minimal democratic standards are even more common in European law than in the international realm. According to modern sovereignty, the sovereign subjects behind international law are peoples within States, and no longer States only. Although this is more controversial, those international democratic standards may not only constrain existing sovereign States, but may also contribute to the emergence of new sovereign States, through the right to self-determination in particular.

This may be explained by the fact that these norms are the reflection of the minimal common denominator to the practice of all democratic sovereign States constituting the international community and are produced as a result by accretion through the gradual recognition of those norms at the domestic level in modern democracies. Once internationalized, those norms may as a result work as legitimate minimal constraints on the autonomy of those States to contextualize and hence to flesh out those minimal international standards in their respective jurisdictions, thus contributing in return to the consolidation of those standards at the international level see generally Buchanan [].

If international law is allowed to regulate internal matters, including human rights and democracy, its democratic legitimacy has to be granted. The internationalization of modern democracy should go hand in hand with the democratization of international law itself. And so is that of its role in the limitation and constitution of domestic democracy as a result.

It may be a consequence but not a necessary one. Other forms of global or international demoi -cracy can be explored. Part of the answer comes from indirect State democracy as international democratic and human rights standards develop as minimal common standards, but direct democratic legitimation is also needed as in a federal polity. Different sources and different subjects call for differentiated democratic regimes in international law-making. Moreover, international democracy cannot be developed without an integrated multi-level approach, and multilateral democratic models ought to include domestic democracy.

Relations between levels of law-making and governance that all correspond to the same sovereign peoples but in different groupings depending on the subject matter constitute another vexed issue. Subsidiarity is often put forward as a legitimate principle to govern the exercise of sovereignty in a multi-level polity and pluralist legal order. Other difficulties pertain to the modalities of participation and representation on a large scale, and to the relationship between deliberation and voting.

One of them is political equality and the interdependence of stakes that is required for political equality to even matter and for democracy to be called for. While the latter is still contested and so are other elements constitutive of a proper political community in international relations, the former also needs to be revisited to be applicable to the international context.

Indeed, the entities whose equality is at stake are not only individuals but also States in a two-pillar international structure, and even IOs. In those conditions, the imperatives of national democracy and sovereign equality can be in tension, thus creating difficult dilemmas for national authorities.

Besides the heterogeneity of the equal subjects and their mutual composition, the equality between democratic and non-democratic States also raises difficult issues. It is no longer the governing principle of a society of equal but independent States, but that of a community of different albeit interdependent actors.

It underlies almost any other principle and institution of international law. At the same time, it is law-based and hence defined and constructed through international law. This makes it vary and a very difficult principle to pin down with full determinacy. While classical sovereignty was State sovereignty, the subject of modern sovereignty is the people. This has turned the State into one of the vessels of sovereignty, and the most important one, but it also explains how international organizations may also have been gaining in sovereignty.

This has brought its own set of new questions, particularly regarding the relationship between State sovereignty and the people and the debate around self-determination. Another difficult issue pertains to the relationship between sovereign peoples and in particular whether sovereignty rights and duties are erga omnes and how they are to be ranked and according to which criteria, when domestic sovereignty is said to be forfeited.

A further source of contention lies in the mutual rights and duties of sovereignty that have to do not so much with the equal independence of States but with their interdependence and the development of an international political community. The legal aspect of this question is often referred to as legal or constitutional pluralism Kadi Case. Here questions arise with respect to the allocation of competences between levels of governance or legal orders, and whether subsidiarity is a legitimate tie-breaker.

Other related questions pertain to the ultimate loss of State sovereignty through supranational integration when popular sovereignty is deemed better protected by supranational institutions. If under the modern concept of sovereignty, international law no longer binds only by self-limitation of the sovereign, but on the contrary by reference to the people whose autonomy is at stake, many doors open regarding the legitimate authority of international law for other subjects of international law, including individuals and IOs.

More work is needed, however, to understand how international law may bind some subjects and not others, and, when it binds different subjects, whether it binds them differently and how their duties relate given their interconnection through sovereignty.

Further exploration of the ways in which international law may be produced in a more democratic fashion, and under what mechanisms, is also called for. The legitimacy of those standards is usually in reciprocal tension in a domestic polity. In international law, however, it remains to be fully understood. Difficult questions pertain to the localization of the co-originality between international standards of human rights and democracy and hence to the relationship between them when either of them or both have their sources in international law.

Further vexed questions relative to what is the legitimate minimal degree of those international guarantees, the limits of their contextualization, and the parochialism critique belong to what promises to nourish lively debates in the years to come. Ashgate Aldershot OUP Oxford — Your current browser may not support copying via this button.

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Introduction 1 The principle of sovereignty, ie of supreme authority within a territory, is a pivotal principle of modern international law. Historical Evolution 8 Since its origins, the content and implications of the concept of sovereignty have constantly evolved. From Ancient Times to the Treaty of Westphalia: The Emergence of Modern Sovereignty 10 In a nutshell, modern sovereignty emerges during the late 16 th century rupture in the political organization of Europe and is then conceptualized by Bodin in his model of the ideal Republic.

From the Treaty of Westphalia to the 20 th Century: The Fleshing Out of Modern Sovereignty 17 By the time Bodin had issued his model of sovereignty, the notion of sovereignty qua impersonal function, the notion of limited sovereignty, and the notion of legal sovereignty, which were to become the pillars of the modern conception of sovereignty, were already emerging. This was confirmed by the PCIJ in in the Lotus case: [i]nternational law governs relations between independent States.

Concept and Conceptions 1. The Normative Concept of Sovereignty 56 In international law, internal sovereignty is used to mean the supreme authority within a territory or the ultimate power within that territory Customs Regime between Germany and Austria [Advisory Opinion] [Individual Opinion of Judge Anzilotti] International Legal Basis 85 Sovereignty being at once political and legal, and external and internal, its legal status is bound to be controversial domestically, but even more so in international law.

The International Legal Sources of Sovereignty 86 Sovereignty is both a general principle of international law and a principle about international law.