Democratic Sovereignty: Authority, Legitimacy, and State in a Globalizing Age

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Democratic Sovereignty

Democratic Sovereignty argues that sovereignty, generally defined as supreme authority in political community, has a neglected democratic dimension that highlights the expansion of substantive individual rights and freedoms at home and abroad. This volume offers a historically based assessment of sovereignty that neither reifies the state nor argues sovereignty and the state are withering, eroding, or disintegrating under globalizing processes. Rather, the book maintains that sovereignty norms have continually changed throughout the history of the sovereign state. The author links international legal developments that restrict and coordinate sovereignty practices with an ethical undercurrent in International Relations (IR). One such example the book explores is the creation of the International Criminal Court (ICC) in 2002. Drawing on seven additional historical case studies, the author outlines how campaigns informed by a commitment to the common good, or at the very least by opposition to harmful state policies, can be and have been efficacious in transforming the normative basis of sovereignty. This book will be of great interest to students working in the fields of sovereignty, international history, ethics, globalization, and International Relations. Matthew S. Weinert received his Ph.D. from the University of Denver and is currently Visiting Assistant Professor at the University of Delaware, USA.

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Democratic Sovereignty Authority, legitimacy, and state in a globalizing age

Matthew S. Weinert

U NIVERSITY C OLLEGE L ONDON P RESS

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First published 2007 by UCL Press The name of University College London (UCL) is a registered trade mark used by UCL Press with the consent of the owner UCL Press is an imprint of the Taylor & Francis Group, an informa business Taylor & Francis 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN, UK Published in the USA by UCL Press 270 Madison Ave, New York, NY 10016 © 2007 UCL Press Typeset in Times New Roman by Florence Production Ltd, Stoodleigh, Devon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Weinert, Matthew S., 1970– Democratic sovereignty: authority, legitimacy, and state in a globalizing age/Matthew S. Weinert. p. cm. Includes bibliographical references and index. 1. Sovereignty. 2. Democracy. I. Title. JC327.W455 2007 320.1′5—dc22 2006017428 ISBN10: 0–415–77168–4 (hbk) ISBN10: 0–203–96568–X (ebk) ISBN13: 978–0–415–77168–9 (hbk) ISBN13: 978–0–203–96568–9 (ebk)

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For my family, whose unconditional support sustains; and especially for my father, Henry Weinert and Viet, Gwinny, and Gramsci

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Contents

List of illustrations Acknowledgments

ix x

Introduction

1

Organization 9 Case selection 12 PART I

Democratic sovereignty: theory

17

1

19

Sources Introduction 19 Sovereignty’s origins 20 Constance and early-modern international relations 24 Sovereignty and state 24 Nation 27

Early models of sovereignty 33 Hierarchical sovereignty: Bodin 33 Confederative sovereignty: Althusius 40 Singular sovereignty: Hobbes 44 Progressive sovereignty: Hegel 50

Summary 55 2

Democratic and state sovereignty: two competing conceptions Introduction 59 Two competing conceptions 61 Logic 61 Space 71 Time 75 Ethics 76

Conclusion 87

59

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Contents Structuring democratic sovereignty

89

Architectonic impulses 89 First level ordering 92 Second level ordering: definition and legitimacy 94 Constitutive-defining principles 94 Regulative principles of legitimacy 99 Third level ordering: scope 103

Conclusion 105 PART II

Democratic sovereignty: history

109

4

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Early history Introduction 111 Religious liberty 113 Slave trade abolition 119 The monarchical principle 128 Conclusion 135

5

Sovereignty in the twentieth century

136

Introduction 136 The democratic principle 136 Human rights norms 146 International criminal law and the International Criminal Court 154 “Conflict diamonds” and international diamond certification 161 Sovereignty and the environment 165 Conclusion 173 PART III

Democratic sovereignty reconsidered

177

6

179

Democratic sovereignty in a global world Democratic sovereignty and normative international transformation 179 Just political order 186 Conclusion 194 Appendix: select global common good measures Notes Bibliography Index

201 206 218 239

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Illustrations

Figure 3.1

Constitutional structures of constitutive principles

91

Tables 1.1 2.1 3.1

Foundational theses Sovereignty: two competing conceptions Constitutive principles

57 62 93

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Acknowledgments

All writers would, I think, concur that a writing life is rather Hobbesian: nearly solitary, often poor, sometimes nasty, frequently brutish, and never short. Despite these shortcomings, writing is an art to be savored. Writing engages oneself with the world—if from an armchair—and the author comes to appreciate that writing, as with life itself, is ultimately embedded in the multiple, sometimes chance, interactions the writer has with the living and the dead. I extend my gratitude to Sarah Bania-Dobyns, Mariano Bertucci, Mlada Bukovansky, Alan Cohn, Alison Diduck, Van and Chanh Dinh, Ann Dobyns, Bud Duvall, Rachel Epstein, Tom Farer, Karen Feste, Robert Fine, Ilene Grabel, Gary Herbert, David Hirsh, Micheline Ishay, Jennifer Karas, Tricia Kenny-Canonico, Haider Khan, Tom Knecht, Christina KopanidisCantu, Gregg Kvistad, Sam Nagarajan, Thao Nguyen, Tram Nguyen, Nick Onuf, Helene Orr, Mustapha Pasha, Martin Rhodes, Chris Rossi, Len Seabrooke, Tim Sisk, Thorsten Spehn, Meg Steitz, Paul Timmermans, Nancy Wadsworth, and Spencer Wellhofer for enlightening discussions and ongoing support. Leslie Cohn, Viet Dinh, Elizabeth Feary, Arianna Hirschman, Sally Kwitkowski, Peter Mitchell, Mehrnaz Mostafavi, and Lauren White in their special, unique ways, illuminated Albert Schweitzer’s poignant comment that “[a]t times our own light goes out and is rekindled by a spark from another person. Each of us has cause to think with deep gratitude of those who have lighted the flame within us.” Special thanks, in this regard, go to those who believed in me even as I staggered. David Hirsh, Colin Perrin, and Briar Towers believed in the idea, and led it to publication. “Thanks” seems rather trivial . . . Heidi Bagtazo and Harriet Brinton at Routledge and Demelza Hookway at Florence Production were remarkable, and saw this work through the publication process. Thanks to two anonymous reviewers whose assent made possible publication, and for their efforts and support of the project. John Poor provided exceptional research assistance thanks to a University of Denver PINS research grant. A version of Chapter 1 will appear in the spring 2007 edition of Human Rights Review under the title “Bridging the Human Rights—Sovereignty

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Divide: Theoretical Foundations of a Democratic Sovereignty.” A portion of the “democratic principle” subsection of Chapter 5 was published as “Globalizing Democracy or Democratizing Globalism” in volume 5 (2005) of the online journal Human Rights & Human Welfare. Parts of the human rights subsection of Chapter 5 will appear as “Democratic Sovereignty and The Responsibility to Protect” in the October 2006 edition of Politics and Ethics Review. Thanks to the University of Denver, my intellectual home for many years, first as doctoral candidate, then as faculty. Students in my International Criminal Law seminars and graduate seminar on sovereignty supported, critiqued, and offered innovative, enthusiastic interpretations of my work. Several at the University of Denver deserve special mention. Though he embarrassed me with flattery and praise, George DeMartino’s skepticism and penchant for precision and organization kept me honest and level headed. Jack Donnelly—ever alive, ever the intellect—proved a most attentive reader of my work, and encouraged me to higher levels of consciousness. His scholarly integrity exalts and encourages. To my colleague, mentor, and, most importantly, friend, Alan Gilbert: I am one of those fortunate beings upon whom the gifts of his magnanimous soul have been bestowed. Selfishly, I look forward to a lifetime of friendship and intellectual discovery. His resolute faith in my abilities and his enduring encouragement countered my own debilitating, incisive self-criticism, and made it all worthwhile. Viet Dinh imparted invaluable editorial advice, a home environment ever supportive of my habitual idiosyncrasies, and the divine gift of love. Gwinny and Gramsci brought an abundance of sustaining love to my desk each day, and even as she faced life-threatening and progressively debilitating illness, my darling Gwinny always gave. Her spirit infuses this text. Words cannot express my deep gratitude to my family; this book manifests their sustenance, care, concern, and unconditional love . . . And, to my father, to whom I owe so much: if only I could begin to emulate a modicum of his infinite common sense wisdom . . .

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Hominum causa omne jus constitutum (“All law is created for the benefit of human beings.”) Roman law maxim

The bounds of possibility, in moral matters, are less narrow than we imagine: it is our weaknesses, our vices, and our prejudices that confine them. Base souls have no belief in great men; vile slaves smile in mockery at the word freedom. Rousseau, The Social Contract

We may describe human kind not as evil, but as a species of rational beings, who are steadily progressing from the evil to the good, striving against hindrances. Thus mankind’s intentions (Wollen) are generally good, but the carrying out [of these intentions] is made hard by the fact that the achievement of the purpose does not depend upon the free agreement of individuals, but upon the progressive organization of the world’s citizens into a system of cosmopolitan scope. Kant’s last written words, quoted and translated by Carl Friedrich

Crimes against humanity are serious acts of violence which harm human beings by striking what is most essential to them: their life, liberty, physical welfare, health, or dignity. They are inhumane acts that by their extent and gravity go beyond the limits tolerable to the international community, which must perforce demand their punishment. But crimes against humanity also transcend the individual because when the individual is assaulted, humanity comes under attack and is negated. It is therefore the concept of humanity as victim which essentially characterises crimes against humanity. Prosecutor v. Erdemovic, para. 28, International Criminal Tribunal for Yugoslavia

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Introduction

Andres gar polis, kai ou teiche¯ oude ne¯es andro¯n kenai. [Men make the polis, not walls or fleets of crewless ships.]1 Thucydides, The Peloponnesian War The underlying tensions between tasks of doing justice between peoples externally and those of doing justice within the national community are certainly not sufficiently indicated by references to the “evolving character of the state system,” as if there were no pertinent distinctions to be made between states in this regard. This conclusion again returns us to basic presuppositions of any careful inquiry concerning international justice. How far can we get with such an enterprise before we succeed in delineating the membership of an international justice constituency? And what constituency can we delineate here that will simultaneously embrace the human claims involved and the rather inescapable interposing authority of state decisionmakers . . . ? Julius Stone, Visions of World Order It is not charity but a right, not bounty but justice that I am pleading for. The present state of civilization is as odious as it is unjust. It is absolutely the opposite of what it should be, and it is necessary that a revolution should be made in it. The contrast of affluence and wretchedness continually meeting and offending the eye, is like dead and living bodies chained together. Though I care as little about riches, as any man, I am a friend to riches because they are capable of good. I care not how affluent some may be, provided that none be miserable in consequence of it. But it is impossible to enjoy affluence with the felicity it is capable of being enjoyed, whilst so much misery is mingled in the scene. The sight of the misery, and the unpleasant sensations it suggests, which, though they may be suffocated cannot be extinguished, are a great . . . drawback upon the felicity of affluence . . . He that would not give to [a proposed taxation fund] to get rid of the other has no charity, even for himself. Thomas Paine, “Agrarian Justice” We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation’s citizens. Justice Sandra Day O’Connor, Hamdi et al. v. Rumsfeld

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Introduction

To speak of democracy and sovereignty in the same vein might appear akin to sacrilege. If the former signifies the enabling of people “to manage power relations so as to minimize domination,” meaning “the illegitimate exercise of power” (Shapiro 2003: 3f.), the latter, as “final and absolute authority in political community” (Hinsley 1986: 1), signifies the very domination democracy is thought to mitigate. If through experience we understand democracy to encompass rights, freedoms, and constitutionally constructed balances of power, then through experience we understand sovereignty to frame a self-help politics characterized by competition and, all too often, violence. If we locate democracy within the state as a particular sort of governing arrangement and experience that emphasizes government reputedly of, by, and for the people, then we find sovereignty in the realm of international politics—a politics of, by, for, and between elite-led states. If our democratic notations read like a venerable list of restraints on peoples and governments in the service of some higher freedom or some common good, then our sovereign notations can not help but read like a veritable list of prerogatives in the pursuit of a self-serving, potentially solipsistic, national interest. This portrait is but a slight exaggeration. Events, past and present, speak to both the exaggeration and its qualifier “slight.” The lenses through which we view the world invariably condition where we place the emphasis. But the tension between the two is not merely theoretical. Take Monday, 28 June 2004, for example. Early that morning, the United States announced that it had transferred formal sovereignty to a new interim Iraqi government in a secret ceremony two days ahead of schedule. Hours later, the US Supreme Court rejected the Bush Administration’s legal grounds for denying approximately 600 enemy combatants imprisoned at Guantánamo Bay, Cuba the right to challenge their detention. In two separate judgments, the court extended habeas corpus to both the American and non-American detainees. Writing for the majority in Hamdi et al. v. Rumsfeld (2004: 29) Justice Sandra Day O’Connor rebuked the administration’s interpretation of sovereignty by declaring that “a state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.” In a separate opinion for Rumsfeld v. Padilla (2004: 11f.), Justice John Paul Stevens emphatically declared: [what is] at stake in this case is nothing less than the essence of a free society . . . For if this nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny. Incidentally, the Israeli Supreme Court two days later ordered Prime Minister Ariel Sharon to reroute parts of the West Bank security barrier because its placement “injure[d] the local inhabitants in a severe and acute

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way while violating their rights under humanitarian and international law” (quoted in Berger 1 July 2004: A1). One may celebrate these occasions in varying degrees as championing democracy and human rights over some unbridled conception or practice of sovereignty. Another might construe the US and Israeli Supreme Court decisions as democratic infringement on some primordial sovereign right— as if the “democratic” qualifier on the object “sovereignty” was a necessary, albeit importunate, blight. Yet another might aver that these occasions reveal a profound disconnect or enduring tension between individual rights (and democracy writ large) and state authority, or, in another idiom, between popular sovereignty and state sovereignty. Indeed, one might even venture so far as to conclude that while democracy and sovereignty may be compatible at home, they are at best in tension and at worst contradictory abroad. After all, a democratic sovereign state did invade another sovereign state under the pretence of imminent threat; spun the justification once the threat was found to be nonexistent into humanitarian concerns; and declared certain individuals “enemy combatants,” a status that earned these individuals illimitable detention and minimal or no recourse to legal protection or process. Human rights seem but a shadow of the appearance of state sovereignty. No matter how one interprets them, these incidents raise interesting questions regarding sovereignty and its relationship with democracy. We might begin by asking in whom or in what sovereignty inheres: the head of state, the government, a high court, the state, or the people? If sovereignty inheres in people, what did the secret transfer of “formal” sovereignty to Iraqi authorities by US officials indicate: subjugation or exclusion of and imposition on the Iraqi people? Further, how does one transfer sovereignty? By signature, a handshake, or a hug between elites? Did the fact that the highest courts in two democratic countries overruled executive policies signify a transfer of sovereignty from the executive to the judicial? Does sovereignty ultimately reside in a court of last review or, to paraphrase John Adams, in a body of law? That the Supreme Court invoked a 1903 lease agreement between Cuba and the United States which recognizes Cuban sovereignty over Guantánamo Bay further complicates. Despite Cuba’s claim to formal sovereignty or ownership, the court found that because the US exercised “complete jurisdiction and control” within the area, US law held. Citing Somerset v. Steuart, a 1772 English slavery case adjudicated by Lord Mansfield, a noted eighteenth century authority on habeas corpus, Justice Stevens argued: even if a territory was “no part of the realm,” there was “no doubt” as to the court’s power to issue writs of habeas corpus if the territory was “under the subjection of the Crown” . . . Later cases confirmed that the reach of the writ depended not on formal notions of territorial

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Introduction sovereignty, but rather on the practical question of “the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.” (Rasul et al. v. Bush 2004: 14)2

The distinction between “formal territorial sovereignty” and “complete jurisdiction and control” raises several interesting questions. If sovereignty is not intricately and intimately linked to the practical project of rule, then does sovereignty simply entail recognition—whether of territorial ownership or of use? The 1903 Cuba–US lease agreement strongly supports this claim for it recognizes and affirms Cuba’s ownership of Guantánamo Bay, but also, to complicate matters, of American use of that territory. Is sovereignty, then, nothing but a peculiar form of private property right ascribed to states, one that prima facie eliminates the possibility of multiple and presumably competing claims to ownership of the same territory, though not use? Events in Iraq support and undermine this interpretation. After the transfer ceremony, several countries extended official recognition to the new interim Iraqi government. But this begs the question: what was officially recognized—a new Iraqi government or Iraqi sovereignty? How do we distinguish between them? Can we ascertain from the fact that Iraq retained its seat at the United Nations (UN) throughout the occupation that sovereignty inheres in the legal fiction we call the state, and that the only thing that was transferred on 28 June 2004 was jurisdiction and control, however circumscribed? The distinction between ownership (sovereignty) and use (variations on “complete jurisdiction and control”) revives a seemingly arcane, but potentially useful, Roman legal distinction. Ownership, or dominium potestativum and dominium directum, connotes absolute possession in perpetuity, “even if . . . the dominium ha[s] no practical content” (Coleman 1998: 612).3 In terms of Guantánamo Bay, dominium directum inheres in the legal fiction we call Cuba; with regard to Iraq, it inheres in the Iraqi state. Contrastingly, use, or dominium utile, refers to possession of a contingent grant based on the recognition and bestowal of effective control and jurisdiction—as much as the owner wishes to divest and assign to others. Thus, the US obtained use rights over Guantánamo Bay by contract and in Iraq by force. From dominium directum emerges a conception of sovereignty that underscores its formal, absolute, even indivisible and unrestricted character, which much of sovereignty theory and practice underscore. Dominium utile, however, remains largely unexplored, despite the fact that this aspect of sovereignty’s history holds rich possibilities for understanding it in terms of overlapping rights based on use and, concomitantly, responsibilities based on use rights. Specifically, one might think of the 1920 Treaty of Spitsbergen, which grants Norway formal sovereignty over the archipelago, but extends to all thirty-nine states-parties, with particular emphasis on Russia, Finland, and Sweden, usufruct rights within the territory. Generally, one might think of international laws and regulations—

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international environmental law (IEL), laws of war, human rights, for example—as giving content to jurisdiction and control, to the use and treatment of one’s particular territory and citizens as well as the territory and citizens of others. Given the realities of our contemporary globalizing world, we could learn a thing or two about sovereignty by examining usufruct rights: for example, that functional dispersions of state responsibilities to non-state entities do not in and of themselves portend sovereignty’s demise but rather a more efficient allocation of resources given the constraints, realities, and demands of a globalizing world. Further, with use come certain rights and responsibilities, to which the Supreme Court alluded in Rasul et al. v. Bush. Yet while the 1903 lease agreement specified rights pertaining to American use of the territory as a coaling and naval station, it failed, according to a former commander of the Guantánamo Bay Naval Base, to clarify American responsibilities save for one: ensuring that “no person, partnership, or corporation would be permitted to establish a commercial, industrial, or other enterprise within the reservation” (lease agreement cited in Lambert 1945: ch. 3). Importantly, then, the Supreme Court began to give content to responsibilities associated with American use by circumscribing perceived sovereign or presidential prerogatives. Guantánamo Bay, the court asserted, fell under US jurisdiction and control; hence, law that applies in the American “homeland” applies in Guantánamo Bay. It is not a “no man’s land,” a legal black hole that permits the president to “wield the tools of tyrants even to resist an assault by the forces of tyranny.” In declaring so, the court seconded jurisdiction and control and the perceived prerogatives of state sovereignty to a particular understanding of the content of just political order predicated on human rights regardless of citizenship. This is the logic Democratic Sovereignty pursues. Surveying eight cases from the sixteenth through twenty-first centuries, the book illustrates how interaction between state authorities and citizen-based movements transforms the normative basis of sovereignty through the codification of international legal instruments designed to restrict and coordinate sovereign practices at home and abroad. In light of historical evidence, the argument shifts our focus from sovereignty’s agents (or who does the work of “final and absolute authority”) to sovereignty’s content: the legitimization of state and popular sovereignty practices by higher order common good and democratic principles—for instance, human rights, the rule of law, and environmental protection—or principles that preserve and advance the general welfare of political community and its constituents. Thus, rather than construe sovereignty as “the final and absolute authority in political community”—an equation that forces us to think in terms of territorially bounded agents—I propose thinking in terms of the final and absolute authority of political community. Far from being a mere minor grammatical notation, the prepositional change refocuses our attention away from sovereignty’s location within a particular community and toward the state as political community itself, and encourages us to look to acts that sustain and advance political community.

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Introduction

A more detailed explanation follows. Democratic theory treats various aspects of modern political life, including feminism (Benhabib 1992; Mouffe 1992; Young 1990), gay and lesbian rights (Kaplan 1997), individuality (Gilbert 1990; Sarat and Villa 1996), agency (Laclau and Mouffe 1986; Reinhardt 1997), memory (Dienstag 1997), education (Euben 1997; Villa 2001), culture (Kymlicka 1989), international relations (Falk 1999; Gilbert 1999; Held 1995, 1997; Robinson 1996), justice (Rawls 1971, 1999), and non-western thought (Bontekoe and Stepaniants 1997). Yet no work in what we might call the corpus of democratic theory has systematically considered sovereignty—generally construed as supreme, territorially based authority or (in Fred Halliday’s felicitous twist on Augsburg) cuius regio, eius spoliatio: whoever’s region it is has the right to exploit it (1999: 11).4 Instead, sovereignty has become the province of International Relations (IR),5 which underscores a particular story. Chiefly, IR theorists have long taken for granted sovereignty’s divisive spatial function (Walker 1993; Wight 1966). Within sovereign states we find hierarchies of power and authority with governments—sovereign agents—residing at the apex of political community. Outside, we find that condition of anarchy, meaning the absence of a higher authority to resolve inter-state disputes or coordinate state activity, which forces states to stigmatize and make enemies of each other (Gilbert 1999). Read “inwards” from the international to the domestic, sovereignty might translate as final, absolute, transcendent authority over and above civil society (Gilbert 1999; Hardt and Negri 2000; Hinsley 1986; Hobson 1998). Read “outwards” from the domestic to the international, sovereignty brackets out the activities of non-state actors and replicates a putatively illimitable hierarchy of power that subverts formal, legal equality (Krasner 1999; Poggi 1978: 90; Waltz 1979) and circumvents, if not prevents, transnational socio-political activity. Construing sovereignty in top-down terms alienates people from public policy decision-making by concentrating authority in governments. In International Relations, the idea is communicated in postmodern and neorealist theories of sovereignty as a double maneuver— the command backed by coercion (Krasner 1999; Weber 1995)—and, in neoliberal ones, as elite monopolies of power and authority (Keohane 1995). Even in some social constructivist works, sovereignty appears a constellation of powerful elite practices, a statement about “the social terms of individuality, not individuality per se” (quoted in Biersteker and Weber 1996: 12). To wit, this individuality is an individuality of states that subsumes internal difference under the corporate state and its sovereignty. People disappear—or, if they appear at all, they appear subjugated. Alternatively, popular versions of sovereignty maintain that authority resides in or emanates from the will and consent of territorially and nationally defined people. This arrangement triply and subversively divorces sovereignty from people. First, by wedding supreme authority to the nation, popular sovereignty imposes a homogenized thing—the unitary nation— upon the diversity of human experience and identity. This silences minority

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“nations” (say, Basques, Chechens, Palestinians, indigenous populations) within the state. Second, popular sovereignty potentially undermines individual rights and liberties by tying public policy to majority decision. Thus, governments, under guise of popular majority vote, may deprive minorities of essential political rights and civil liberties available to majorities. In this regard, we might think of Jim Crow laws in the segregated American south. By way of parody, women in the United States could invoke their numerical superiority as justification to deny certain rights (say, enfranchisement) to men. Both the historical and the fictional reveal a core non-negotiable element of democracy—the preservation of equal basic rights—lest it descend into self-abolishing wills of all that defend and advance only particular (tyrannical) interests against general ones. Third, binding sovereignty territorially and nationally divides peoples and their transnational concerns such that a transnational populist concern with preventing environmental degradation conceivably confronts (and is defeated by) state interests in sustained economic growth despite pollution. Yet successes of both transnational movements and the application of the rule of law in amending existing and generating new international policies reveal that the conceptual divide between popular and state sovereignty appears less distinct than usually thought.6 Sovereignty is, in short, constituted and modified by multiple agents whose varied interests reflect diverse, though not always incommensurable, conceptions of the content of just political order, or ideas of what can be done to prevent certain deprivations, ameliorate living conditions, and sustain and promote peace and order. Recognizing this opens the theoretical door to a more democratic articulation of sovereignty in ways that confront so-called democratic deficits (Held 1995) in international relations and the “rolling back of the state” produced by neoliberal forms of globalization (Agnew 2002). Democratic Sovereignty creates a space in sovereignty theory to consider these emendations in sovereignty history and practice, which, practically speaking, find policy relevance in the UN human security agenda (www.humansecuritychs.org). Democracy has something important to say to and about the more egregiously permissive and self-referential formulations and practices of sovereignty. Power needs restraints; people seek to live self-determined lives in conditions absent from the perpetual threat or use of violence; and sovereignty appears a proper place to start. Democratic sovereignty is thus an ethical-political project tied to ideas about the content of a just political order. It is ethical because it concerns the range of permissible state activities both at home and abroad vis-à-vis human welfare. To this end, the book makes a normative analogy between democratic theory and International Relations by going further than Rawls, who weakens concern for basic rights in The Law of Peoples (1999). I advance a core argument about the extension of basic liberties and rights to each individual that essentially undercuts a central feature of contemporary democratic theory, namely, the notion that majorities may decide the

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Introduction

content of a common good. It is political because it considers the construction and regulation of sovereignty as an exercise of authority and power, defined broadly as some measure of input or influence on important decision-making processes and procedures that affect the whole of political community. In this respect, democratic sovereignty concretizes David Held’s cosmopolitan democracy (1995) and Andrew Linklater’s cosmopolitan citizenship that “counterbalance[s] the increased opportunities for elite domination which accompany the decline of the modern territorial state” (1998: 193). Restrictions imposed upon sovereignty practices act as determinants and dimensions of international (normative) change. Such restrictions reveal that variations within states-systems are not solely contingent on significant alterations in arrangements of material power, but often hinge on moral legitimizations of sovereignty and the state in defense of a common good. Such legitimizations are in turn reflected in the progressive development and codification of international and cosmopolitan law. Often unnoticed or under-appreciated in traditional sovereignty theory, events-intime significantly alter processes over time, transforming relations in ways that curtail privileges thought to emanate from sovereignty and in ways that, if we wish to use this language, remake the sovereign state. In this manner, the “thing” (sovereignty) that constitutes the state likewise modifies it, forcing us to retreat from the orthodoxy that sovereignty is a “hard,” invariable fact of international political and social life. To give content to the argument, I examine the struggle for religious liberty; abolition of the slave trade; the advent and dissolution of the nineteenth century monarchical principle; human rights; democracy as a standard of legitimacy; developments in international criminal law with specific focus on the International Criminal Court (ICC); a certification scheme to prevent the trade of “blood” or “conflict” diamonds; and the general development of IEL. The cases show how the interplay of (transnational) populist campaigns with states can be and have been efficacious in transforming the normative basis of sovereignty through the codification of legal instruments designed to restrict and coordinate sovereign practices at home and abroad. In this respect, democratic sovereignty is not simply an amalgamation of state and popular sovereignties, but rather their legitimization, by which I mean cohering sovereignty practices with collectively shared norms and an equal scheme of basic rights and liberties available to all. This book thus builds upon a substantial and growing body of literature, including works by Samuel Barkin (1998), Gregory Fox (1997), and Daniel Philpott (2001) that tie sovereignty to conceptions of legitimacy. Yet instead of collapsing populist-oriented conceptions of sovereignty into versions of state sovereignty,7 Democratic Sovereignty affirms the important role various agents have played in amending sovereignty practices coincident with widely shared norms. Justice Stevens’ remark—a remark by the court’s most liberal justice supported in a rare concurrence by its most conservative (Antonin Scalia)—affirms the notion that sovereignty and sovereigns to be in good,

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legitimate standing at home and abroad must abide by some minimal international standards of behavior. Thus, a conception of democratic sovereignty is not designed necessarily to supplant state or popular sovereignties. Rather, it is simply another way of interpreting sovereignty, a way that captures historical realities that state and popular versions of sovereignty do not always appreciate or account for. Finally, while the concept of a democratic sovereignty may appear new to some readers, there are in fact theoretical and historical precedents for rethinking sovereignty in this vein. This book explores those precedents.

Organization The book unfolds in three sections. Part I (Chapters 1 through 3) constructs the theoretical argument; Part II (Chapters 4 and 5) offers historical evidence; and Part III, which consists solely of Chapter 6, revisits the argument and relates it to the wider realms of world politics and global governance. Chapter 1, divided into two sections, treats sovereignty’s historicotheoretical development. The first section examines the coalescence of disconnected logics of sovereignty (or the independence claims of secular authorities), state (particular, institutionalized communities of fate), and nation (particular communities of identity) at the Council of Constance (1414–18), a church council convened to settle the Great Schism. This challenges the iconic status of the 1648 Westphalian Peace, which is generally thought to demarcate the feudal from the early modern by inaugurating a decentralized system of sovereign, independent, nation-states. Consequently, I suggest that international relations are centrally about the management of identity difference. Fully appreciating the events at Constance permits one to understand how Machiavelli could write in the modern language of lo stato in 1513, and why Bodin (1576) and Althusius (1603) could fully articulate theories of sovereignty well before Westphalia reputedly founded a sovereignty based system. Further, recognizing Constance allows one to read subsequent developments—namely the Religious Peace of Augsburg (1555) and Westphalia (1648)—as salient amendments of the states-system. In that section, I introduce a theme Part II explores more fully: that for a sovereignty based system to function effectively, the agents within that system must necessarily recognize and admit of regulations of sovereignty practices. Sovereignty, in other words, demands by its very nature coordination of certain functions and activities to ensure a degree of system stability and order, unit survivability, and the pursuit of justice. The second section of Chapter 1 considers four early and dissimilar theories of sovereignty: what I call Bodin’s hierarchical, Althusius’ confederative, Hobbes’ singular, and Hegel’s progressive sovereignties. I treat these four precisely because each offered early, distinctive theories of sovereignty tied to particular governmental forms and structures. In other words, an Althusius could recognize that a Bodinian conception of sovereignty lacked

10 Introduction

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parallels in a confederative Dutch government, just as Hobbes could see that neither related to the English state, and Hegel could remark that none cohered with a constitutional-based government. Despite procedural and substantive differences, however, each attaches sovereignty to the good of political community, thus allowing for a reformulation of sovereignty from “final and absolute authority in political community” to the final and absolute authority of political community. Further, I counter misreadings of these theorists (particularly Hobbes and Bodin). To anticipate, Bodin, who is often treated as an apologist for absolutist, autocratic rule, actually opposes despotic and tyrannical sovereignty. He grounds political authority and agency in “the sovereign good in general and of each of its citizens in particular” (1955: 2f.), arguing that “less freedom is given to a prince by the law than to his subjects” since the prince’s authority arises . . . from natural equity which requires that agreements be kept and . . . from the prince’s good faith, which he ought to honor even if he suffers loss because he is the formal guarantor to all his subjects of good faith among themselves . . . (ibid.) Likewise Hobbes—also typically read in an unflattering light—provides a more democratic spin on sovereignty than many contemporary IR accounts. Justice forbids the sovereign “to do anything destructive to life, and consequently the laws of nature” (1994 [1668]: 92). For Hobbes, the preservation of life and, correspondingly, all those “contentments” of life, are general public goods that cannot be reversed by the sovereign’s proclamation. If Chapter 1 resides in the disciplines of political theory and history, then Chapter 2 is steeped in International Relations. I compare democratic sovereignty with IR conceptions of state sovereignty around four central themes: sovereignty’s logic, or its theoretical and historical expression; space, or the articulation of political space correlative with sovereignty; time, or sovereignty’s relation to international change; and ethics. In each section, I adopt and adapt Chapter 1’s findings to construct a democratic sovereignty as an alternative to regnant conceptions. By divorcing sovereignty from internal hierarchies associated with exploitative structures of rule and tying it to internationally accepted standards of conduct, the argument fleshes out even a core distinction made in international law but not fully appreciated in International Relations: that sovereignty resides in states as associations of people, not governments.8 Importantly, sovereignty connotes not license but liability. Chapter 3 confronts the thorny reality of the state. Pointedly, it conceptualizes the coexistence of democratic and state sovereignty. The argument develops a model built around what I call regulative principles of legitimacy, or constraints on state behavior informed by conceptions of just political order and embodied in international law. These principles include

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proscriptions (bans on slave trading, employing landmines or children as soldiers, marketing conflict or blood diamonds) and prescriptions (guarantees of individual religious liberty and human rights, among others), which are construed as preconditions for the state’s decent standing in the international community. Collectively, such constraints modify the conditions of anarchy, or what I call the coordination requirement of anarchy, meaning that even relatively unstructured, decentralized systems (laissez-faire capitalism, inter-state anarchy) require the coordination of certain basic functions and activities to ensure a degree of system stability and order. If Part I treats both democratic and state sovereignty as statements about principles or, in other words, as statements about the nature of authority and its ends, then Part II treats sovereignty as a set of practices. This is not to suggest that sovereignty is one or the other; rather, it is both. Practices reveal sovereignty’s contested, contingent, and social nature, whereas principles evidence sovereignty’s durability. Understood as both principle and practice, sovereignty exists as a point that moves along a legitimacy continuum. On the one end, we have a reading of sovereignty grounded in a logic of permissiveness/aggressiveness or license in which all authority concentrates in a singular agent, the state or, in some cases, majorities. This reading coheres with the theses fleshed out in Chapter 2 and outlined in Table 2.1 under the rubric state sovereignty. On the other end, we have a reading of sovereignty grounded in an international logic of legitimacy and restriction. Cynthia Weber (1995) and Stephen Krasner (1999), among others, take the former approach. For Weber, sovereignty is a power construct revealed chiefly in American interventions abroad. Thus, sovereignty is what the powerful say it is. Weber thus privileges—indeed, essentializes—power, for power determines how sovereignty as principle is practiced: either states possess ample capacity to direct their particular wills, or they do not (cf. Jackson 1990). For Krasner (1999) however, practices surrounding sovereignty reveal its hypocrisy. While we would like sovereignty to represent something more—a force for human rights protection or democratization, for example—rulers always act in the service of power even if it means opposing international norms. Contrariwise, grounding sovereignty in a logic of restriction (of legitimacy) entails recognizing sovereignty’s social and potentially humanistic potentialities. Daniel Philpott (2001), among others, takes this approach. Philpott argues that “revolutions” in sovereignty are deeply connected to ideas—ideas about religious and political equality, colonial nationalism, and independence. Each revolution—the Protestant Reformation and decolonization—fits comfortably well in a theory of democratic sovereignty. Yet, as I read Philpott, each revolution merely extended a form of sovereignty: the sovereign state replete with a constitutional division of powers and rights of recognition. There are other pertinent (normative) revolutions that have altered (and not merely extended) sovereignty in considerable ways.

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Chapter 4 treats the pre-twentieth century cases of religious liberty from Augsburg (1555) to Westphalia (1648), abolition of the slave trade, and the nineteenth century monarchical principle that pegged recognition of sovereignty on rule by a European monarch. Chapter 5 examines five twentiethcentury cases, including democracy as a universal value and form of governance, human rights, the ICC, an international diamond certification scheme designed to eliminate the sale of “conflict diamonds,” and global environmental regulation. Chapter 6, the sole chapter of Part III, reflects on the broader implications of a democratic conception of sovereignty. In particular, the chapter proposes the most provocative aspect of the study: that world politics may be construed as evolutionary moral learning. The chapter reveals two distinct theses at play in the book.9 The weak thesis avers that commitment to the common good can be and has been efficacious in transforming the normative basis of state sovereignty; this is democratic sovereignty. Extrapolating from practices of democratic sovereignty, we derive the strong thesis, twice subdivided. The weak version of the strong thesis contends harmful state policies generally (though not always) fail. The strong version of the strong thesis avers the good will prevail. This proposition may be divided further into two categories. The non-teleological reading argues there are no connections between advances in distinct issue-areas. Thus we cannot extrapolate from these incidents any direct causality between normative values and the progressive unfolding of freedom or an implicitly directive human rights logic in international relations. Alternatively, the hedged teleological, inductive reading advances the notion that world politics is evolutionary moral learning—and that sovereignty is the site of such normative transfiguration, one that reveals an implicit democratic logic in world politics. I call this reading a hedged teleological, inductive one since a progressive theory is really a theory of agency or socialization, not predetermination. How and why people act and react to circumstances (sometimes and most often not of their own choosing) is contingent on a variety of factors, including moral, ideational, and material resources, among others. I then proceed to discuss ideas about the content of just political order, and conclude by reflecting democratic sovereignty’s place within IR literature.

Case selection Rather than perform an intensive interrogation of two historical episodes as Philpott (2001) has impressively done, or six within three distinct time frames as with Cynthia Weber (1995), I discuss quite generally eight episodes that have issued, in the language of Chapter 3, regulative principles of legitimacy. Such principles modify sovereignty practices and the ways actors understand sovereignty. Further, such principles attain legitimacy and authoritative status because they enshrine shared values and thus

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reflect the work toward which supreme authority is directed. Admittedly, my case list is not exhaustive as it omits such cases as the French and American revolutions which, one could argue, issued significant (democratic) modifications of (state) sovereignty; national self-determination following World War I; decolonization; the international ban on the use of child soldiers; the anti-personnel Landmines Treaty; and Jubilee 2000, among others. Each, to be sure, could only illumine and strengthen the theory. So, the reader asks, why the commission of some cases and not others? Succinctly, I sought cases that spanned a vast temporal plane—from the time sovereignty and states made their formal appearance at the Council of Constance to the present. Given that democratic sovereignty and principles of legitimacy standardize state practices and modify authority relations, I looked for instances in which states collectively pursued particular policies that modified a rule of recognition and/or delimited particular behaviors. Cases prior to the twentieth century were few. The 1555 Peace of Augsburg and the ensuing wars of religion provided a good indication that systemic regulation would be a necessary condition for the basic functioning of states domestically and internationally. While the principle enshrined at Augsburg—cuius regio, eius religio—marked a decisive shift in inter-state relations from complete decentralization and autocracy to admission of a need to confer on matters of pressing international concern, it served only to shore up absolutism as sovereignty’s dominant early-modern form. Westphalia modified that norm by providing for individual religious liberty, and thus reads as the first international regulation of sovereignty practices. The monarchical principle and abolition of the slave trade—both initiatives of the Congress of Vienna following the Napoleonic Wars—mark the next modifications and regulations of sovereignty practices. However, a case may be made that the American and French Revolutions, in addition to both the Dutch revolt against absolutist Spanish rule in the late sixteenth century and England’s seventeenth century Protestant Revolution, significantly reformulated sovereignty principles, if not practices. There are two primary reasons why I disregard these events despite the fact they do in the end support a theory of democratic sovereignty. First, historians have generated volumes on each of the revolutions; I have little to add to the literature. Second, while the French and American revolutions in particular influenced revolutionaries abroad, thus providing for real-world examples of popular sovereignty-based systems of rule, they were domestic modifications of sovereignty and did not codify general regulative principles in international instruments that determined sovereignty’s content.10 My reasons for excluding decolonization, the Landmines Treaty, and the ban on the use of children as soldiers are admittedly weaker. Daniel Philpott (2001) and Neta Crawford (2002) provide exceptional accounts of decolonization, making strong cases in favor of democratic sovereignty. Again, I could add nothing new to the literature. As for the anti-personnel Landmines Treaty and the ban on the use of children as soldiers, my reasons

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tend toward familiarity. Certainly the landmines issue has received enormous publicity, in part due to the late Princess Diana’s efforts toward eliminating their use and de-mining activities in such places as Cambodia and Mozambique. Finally, I aimed toward a vast range of issue areas: religion; slavery (or as Crawford felicitously phrased it, the colonization of bodies); forms of government (monarchy to democracy); human rights; the environment; international criminal law; and issues of human security illustrated here in the case of conflict diamonds. The ban on the use of children as soldiers seems to me a subset of human rights, as is condemnation and outlawing of apartheid, though each proves a compelling story. While some may argue that religious liberty and abolition were early expositions of human rights, neither was couched in such language. Indeed, from religious liberty came political liberty; from the outlawing of slaving came abolition. Each was too momentous to omit from consideration. I used the following criteria, then, for selecting cases. First, I looked to issues that concerned multiple states. I thus eliminated from consideration domestic legislative advances concerning, for instance, labor conditions, environmental protection, and the like. Second, I looked to issues that were framed in the idiom of just political order. Here, I take a more expansive view of international order than Bull, who defined it as “a pattern of activity that sustains the elementary or primary goals of the society of states, or international society,” by which he meant “a group of states, conscious of certain common interest and common values . . . that . . . conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions” (1995 [1977]: 8, 13–18).11 I expand the envelope and incorporate more cosmopolitan or solidarist concerns such as human security, the environment, and human rights that, as I understand them, do not supplant that state and the states-system but rather enrich and enhance it. Third, my research has found that international regulations generally arise from some persistent injustice or deprivation. The religious principle of Augsburg and its modification at Westphalia emanated from the Protestant split with the Catholic Church and the ensuing series of bloody religious wars that followed. The Napoleonic Wars spurred the monarchical principle as a reaction to liberal-revolutionary movements. Yet democratic and revolutionary spirit, repressed by the imposition of monarchy upon several states, delegitimized that norm. Slavery as an outrage on the conception of humanity prompted abolition, as the Holocaust and egregious human rights abuses compelled the articulation of universal standards for the treatment of human beings. This list continues. In each case, the crisis of oppression is met by democratic, humanistic response. Fourth, I looked to cases that proposed solutions to violations of or potential threats to international order. In this way, my research relied upon

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Sen’s conception of needs, which “relate to our ideas of the preventable nature of some deprivations and to our understanding of what can be done about them” (1999: 11). But what I found might surprise the reader: not all regulative principles of legitimacy upheld democratic over state goods. For instance, as with Augsburg, sovereigns issued protections for specific religious groups within their territories; other religious groups were enjoined to convert or emigrate. In one sense—certainly one incoherent with Sen’s intentions—the Augsburg principle (as with the monarchical principle later) reflected understandings about how to manage particular deprivations. Yet the case fit with the overall theory—an important variation on the progressive theme that irrigates this work, one that does so without constricting the theory, and one that abandons any belief in progress as teleological, inevitable advance sans agency. International relations are inherently human constructs contingent on actor motivations, interests, and decisions; our theories should reflect that. Fifth, I looked to cases that resulted in international legal prescriptions or proscriptions. Such instruments give definitive content to the idea of a global common good or a just political order that is concerned with modifying the excesses of sovereignty practices. A final note regarding the case studies: these sections are necessarily brief—perhaps inadequately brief—for some. My goals are simple: first, to identify the central agents of change; second, uncover prevailing ideas about the content of just political order; and third, assess the actualization of such ideas. These actualizations are, essentially, the substance of democratic sovereignty.

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Part I

Democratic sovereignty Theory

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Introduction As a theoretical proposition, democratic sovereignty reflects and acts upon “the moral resources within existing social arrangements which political actors can harness for radical purposes” (Linklater 1998: 5). This praxeological approach as Linklater calls it focuses on overcoming conditions of oppression given existing resources—material, ideal, or otherwise. Practically speaking, praxeological emancipation may be accomplished, at minimum, through progressive reform including international (donor, lending, and assistance) conferences, domestic and international legislation, acts of civil disobedience, and other forms of non-violent pressure exerted upon governments to modify and halt harmful policies. At maximum, the project warrants forceful opposition—even revolution—to aggressive, predatory policies. Being for and about people’s welfare, democratic sovereignty generally downplays revolution and violence as a primary means to quash despotic policies, structures, and behaviors. Given the omnipotence of states (i.e. the plethora of military hardware and instruments of violence possessed by and available to states) revolution seems, I think, untenable, and would surely invite states to annihilate those they would perceive as “enemies.” Hence, this study emphasizes less violent ways in which the exercise of democratic sovereignty reforms state policy. Read in conjunction with democratic sovereignty, praxeology raises two sets of questions that inform Part I. First, how do democratic and state sovereignty coexist? More pointedly, given their coexistence, in what ways does a democratic sovereignty mediate state sovereignty? I consider these questions in Chapter 3. Second, what constitutes moral resources and which agents, if any, control them? I address this question in Chapter 2. Here, I focus on sovereignty’s historical and theoretical origins. Given the propensity to view sovereignty and human welfare or, to frame it in a more widely used idiom, human rights, as contradictory or opposing, we need ask how we might reconcile the two (assuming the two need reconciliation). This chapter confronts the notion that human rights and sovereignty are “fundamentally opposed,”1 a notion that Leo Gross (1948) might have instigated

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with his titular post mortem, “The Peace of Westphalia, 1648–1948.” I go deeper than Gross, who argues that sovereign prerogative, which he alternatively frames as the rugged individualism of Westphalian states or the license of “supreme” power and authority, was sharply curtailed by both the 1945 United Nations Charter and the 1948 Universal Declaration of Human Rights (UDHR) in areas such as war-making and the treatment of civilians. Rather, I expose democratic, isocratic, humanistic elements (what may be thought of as human rights precursors) actually embedded in early notions of sovereignty, including Bodin’s hierarchical, Althusius’s confederative, Hobbes’ singular, and Hegel’s progressive sovereignty. These elements in turn constrain sovereignty—a language which, on second thought, seems too weak. Rather, those elements differentiated sovereignty from brute force. While their “sovereignties” may seem remote from contemporary debate— and may, as with Bodin and Hobbes, seem antithetical to the argument— they serve to illustrate the theoretical distance between today’s conceptions of sovereignty and their earlier, more human rights friendly antecedents. After initial inquiry into sovereignty’s origins, the chapter then considers Bodin, Althusius, Hobbes, and Hegel. I focus on these four because each offers a theory of sovereignty tied to particular governmental structures— Bodin to monarchy mediated by sub-associations, Althusius to confederation, Hobbes to unmediated monarchy, and Hegel to constitutional regimes. Despite differences, however, each theory disassociates sovereignty from its agents and aligns it to its end or telos (the good of citizens). To anticipate an argument in Chapter 2, this conception starkly contrasts with those who equate sovereignty with unqualified, unmitigated rights (Waltz), ruling elites with self-serving interests (Krasner and Keohane), and formal or juridical autonomy and equality (Arend).

Sovereignty’s origins Disciplines have their icons. International Relations celebrates the 1648 Peace of Westphalia for demarcating the feudal—that “cosmopolitan patchwork of overlapping loyalties and allegiances, [and] geographically interwoven jurisdictions and political enclaves” (Camilleri 1990: 13)—from the early modern—that “decentralized system of sovereign and equal nationstates” (Miller 1988: 19; see also Zacher 1992). Ostensibly without history (Skinner 1978: 349), Westphalia ended the devastating Thirty Years’ War, deposed the universal pretensions to power of the papacy and (Holy Roman) empire, and reconfigured the European political landscape in terms of multiple, exclusive political entities (or, to use a reductive neorealist idiom, units). Not only did the settlement ordain sovereigns with the unfettered authority to make war, conclude treaties, and forge alliances—functions previously reserved for the Emperor and Pope—it also recognized the Protestant states of the Netherlands, Switzerland, and numerous German principalities as equal to Catholic ones.

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Puzzlingly, however, while scholars may invoke Thucydides as International Relations’ grandfather (see Gustafson 2000), they bypass two millennia of world history and focus on post-1648 developments. What explains this myopia, or at the very least, historical oversight? Partially symptomatic, perhaps, of a narrow way of defining what constitutes an “international” set of relations; partially a barely concealed contempt for the non-state; partially an affectation with distinct, rigorous disciplines of study; and partially a consequence of the fascination with power, material or otherwise, this largely “American social science” (Hoffmann 1987) has dogmatically absconded with the modern world into the isolated laboratory, where its scholars and practitioners discern putatively timeless laws and wisdom. Yet rarely is the real world so neat and tidy. Parsimony, however, does yield its critics. Skeptics of Westphalia have offered in its stead a multiplicity of origins, including the 1414–18 Council of Constance (Wight 1977), the 1454 Peace of Lodi (Mattingly 1988), “discovery” of the “new world” in 1492, great power struggle over Italy in 1494 (Dehio 1963: 23), the 1659 Treaty of the Pyrenees (Kratochwil 1986), and the 1713 Peace of Utrecht (Hinsley 1963). While all focus in one manner or another on the role of great powers in constituting the states-system, the number of possible starting points inevitably begs the question of what theories of sovereignty and international politics comprise. If sovereignty signifies a particular sort of independent identity claim, as I contend, and, moreover, an institution surrounding the recognition of such claims to autonomy, then theories of International Relations become by default theories of how such identities are managed in an environment absent superordinate authority. Laws, regulations, customs, organizations, regimes, cooperation, and the like become as much a part of the theory, practice, and system of international relations as war, conflict, and power balancing. Here I argue that this sovereignty-based system emerged less in Westphalia and more in the Council of Constance (1414–18). If Constance introduced a logic of state autonomy, then the 1555 Religious Peace of Augsburg and Westphalia’s import lies with regulating this logic. Three general explanations bolster Westphalia’s iconic status. I call the first the functional, the second the recognition, and the third the ordering argument. The functional argument contends Westphalia ordained new entities with unfettered authority to make war, conclude treaties, and forge alliances—functions previously reserved for the Holy Roman Emperor and the Pope. Proponents of this claim, including Daniel Philpott, point to the fact that Articles 62 through 66 of the Peace of Westphalia (1648) “established and confirmed . . . ancient rights, prerogatives, liberties, and privileges” for the German principalities, including the “free exercise of territorial right”; “the making or interpreting of laws, the declaring of wars, imposing of taxes”; and the making of “alliances with strangers for their preservation and safety” (Philpott 1997, 2001). Thus, claims Philpott, when measured against Westphalia, Bodin’s sovereign (1576) could not be substantively

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sovereign since he could not “collect taxes or send an army into battle,” faced “threats from within,” and was not secure from “meddling without” (Philpott 1997: 17, 28f.). Accordingly, he concludes pre-1648 entities were more akin to “chess pieces,” none alike, each possessing particular, not generic, privileges and prerogatives. While Philpott makes a critical distinction between legitimate authority and brute force in an effort to distinguish sovereigns from non-sovereigns, his functional argument conflates the two: that if an entity lacks the ability to perform certain functions, then it lacks the hallmarks of legitimate, and hence sovereign, authority. Concentration on the functional powers and exploits of sovereigns reifies the modern state. Strictly speaking, functions are more aptly construed as contingencies that must be decoupled from essence. Function does not breed ontological certainty. Owing to material and ideational innovations in political and social life, functions vary across spatio-temporal planes and thus should not be taken to indicate sovereignty’s essence (Krasner 1993: 235–64; 2000: 20–9; see also Thomson and Krasner 1989). Disaggregated from capacity,2 functions merely represent additions to the “basket” of rights ascribed to multiple (sovereign and non-sovereign) actors (Fowler and Bunck 1995). To this end, notice to what Articles 62 through 66 applied: entities of the Holy Roman Empire, including Switzerland. The empire thus conferred upon its constituents functions previously reserved for itself. Yet the Holy Roman Empire was not considered sovereign, though other polities— notably England, France, Spain, Sweden, and the Papal States, among others, which possessed the same basket of functions—were considered sovereign. This fact suggests sovereignty has something to do with a particular sort of identity claim, not with functional capacity or foreordination. Further, Westphalia’s celebrated right to wage war had juridical and practical antecedents. In the early fourteenth century, Lucca de Penna compiled a list of (sixty-seven) sovereign functions and prerogatives (Cheyette 1970: 44; see also Kriegel 1995: ch. 2). Jurists for the French king—whose de jure independence or sovereignty had been recognized in 1202 by Pope Innocent III’s decretal, Per venerabilem (Cheyette 1970: 44; Wight 1977: 27)—subsequently revised Penna’s catalogue. Both incorporated rights related to war-making ability, including the sole “authority to punish illicit use of arms . . . and to issue letters of marque [and reprisal]” (ibid.: 45).3 The deliberate inclusion of rights “of marque and reprisal, of admiralty jurisdiction and guard of the sea” appealed “to a conception of sovereignty with a generation of solid development behind it. The conception was explicitly territorial: the seas protected were the seas and boundaries of ” the kingdom (ibid.: 67f.). In this regard, Cheyette could claim that “by 1332, sovereignty, like violence, was a fact of political life. All that remained was to work out the details.” After 1332, extension of these rights proved more an empirical, not theoretical, matter that could but bolster the de facto and de jure claims of independence essential to a theory of state sovereignty. Thus, if we consider the gradual fracturing of universal Christendom starting

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with the French secession, then functions such as treaty formulation and alliance creation can be read in conjunction with the strengthening of secular authorities and the wider pluralistic assault on papal universalism. Functional dispersion from the medieval centers of political gravity (the Emperor and the Papacy) began long before 1648, which is probably why Marsilius of Padua proclaimed without hesitation or uncertainty sovereignty’s “final emancipation from the pope” in his 1324 Defensor pacis (Kriegel 1995: 29). If the functional argument held, then it would decry the largely legal definition—sovereignty as designating constitutional independence and juridical equality—especially in light of what Jackson calls the “quasi-states” of Africa and Asia, or those states with “limited empirical statehood”: Populations [in these states] do not enjoy many of the advantages traditionally associated with independent statehood . . . [Their] governments . . . [are] deficient in political will, institutional authority, and organized power to protect human rights or provide socioeconomic welfare . . . These states are primarily juridical. (Jackson 1990: 21) Yet quasi-states—say, Liberia, the Congo, and Sudan—are considered sovereign; that is, their independence is recognized by other states despite a presumed failing in functional capacity. Functions cannot a sovereign make. The second argument concerning recognition of the Netherlands, Switzerland, and numerous German principalities as sovereign, similarly fuels Westphalia’s iconic status. Admission of those polities into the family of European states was primarily a consequence of their military victory over the Catholic states in the Thirty Years’ War. (Calvinist Sweden, previously recognized, also defeated Catholic continental states; analogously, consider Japan’s forceful entry into international society after its defeat of Russia in 1905 (Gong 1984).) Far from instituting a new system of relations, Westphalia presupposed that system’s prior existence and extended it. In another idiom, Westphalia marked a Wittgensteinian family resemblance of institutional state form disaggregated from religious (specifically Catholic) identity, thus prefiguring future (often violent) expansion of the state system in regions having no tradition of what we in the West have call the state (Bull and Watson 1984; Ferguson and Mansbach 1996; Watson 1992). This brings us to a third possible explanation, the ordering argument,4 which treats Westphalia as the first comprehensive agreement to govern all Europe (Philpott 2001: 82, 281). As Philpott remarks, delegates assembled from “sixteen European states, sixty-six imperial estates, and twentyseven other interest groups within the empire” and negotiated an agreement intended to apply equally to all. The crux of the argument lies not in the number of delegations but in the operative “governing” clause. In other words, Westphalia was but one peace settlement of several concluding one

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of the many religious wars that assailed Europe from roughly 1517 to 1648. Why in particular did Westphalia terminate such wars? Was it solely because delegates assembled from “sixteen European states, sixty-six imperial estates, and twenty-seven other interest groups within the empire”—which then provided a reasonably comprehensive basis on which a settlement could emerge? Or was it because previous settlements offered what turned out to be defective solutions to the religious problem—and Westphalia “got it right”? In other words, might Westphalia’s import lie in amending an existing ordering logic? These are questions that inform the religious liberty case study in Chapter 4. For now, we focus on Constance and the emergence of the sovereign state. Constance and early-modern international relations Convened in 1414 to resolve an importunate blight on Christian universalism—the Great Schism, a forty-year span during which, at one point, three popes, each supported by distinct secular leaders, vied for power— the Council of Constance appears, prima facie, ecclesiastical business remote from the emergence of state. Yet during the Council juridical sovereignty converged with a conception of nationality, and cloaked itself with the institutional armor of state. As a singular, exclusive claim to identity, “nation” proved the requisite instrument by which sovereignty could achieve practical as well as conceptual utility and power. Henceforth, a new social and political complex of meanings, understandings, behaviors, and relationships arose around the enmeshed triad of sovereignty, state, and nation. Development of the first provided a solid legal foundation upon which the second, initially defined by the third, could emerge. Sovereignty and state Conceptually, sovereignty emerged out of an eleventh century feud between papal imperialists, or supporters of the papacy, and royalists, or defenders of secular rulers, over authority domains. Chiefly, the dispute centered on the theocratic-descendent theory of government under which authority descended from God, was channeled through the pope and ecclesiastical officials, and funneled into limited spheres of rule among and by “secular” kings (Sabine 1953: 264–96; Ullmann 1965; Wilks 1964). If imperialists favored centralization of authority and power in the papacy, then royalists countered by appealing to a distinctly Aristotelian idea: that the polity consummated all natural unions, and that such associations fulfill humanity’s social inclinations. Consequently, they maintained that the polity was an organic institution possessing primordial claims over mundane life and set against the constructed institution of the Church. Uncomfortable with these assertions of independence, yet recognizing the accumulation of power in the hands of secular authorities, papal jurists

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invoked the Roman idiom plenitudo potestatis, or the fullness of power, to differentiate de jure papal authority from the de facto material power of kings. In an 1198 letter to Tuscan nobles, Innocent III sermonized: just as the founder of the universe established . . . a greater [light] to preside over the day and a lesser one to preside over the night, so too . . . he instituted two great dignities, a greater one to preside over souls as if over day and a lesser one to preside over bodies as if over night. These are the pontifical authority and the royal power. Now just as the moon derives its light from the sun and is indeed lower than it in quantity and quality, in position and in power, so too the royal power derives the splendor of its dignity from the pontifical authority. (cited in Tierney 1973: 217) Remarkably, four years later Innocent recognized the French king’s assertion of sovereignty—the first appearance of the term in Europe—which could only portend the papacy’s demise. To be sure, the recognition owed in large measure to the unique position of the French state: the unbroken succession of Capetian royal authority residing atop a vast feudal hierarchy in which barons came to recognize the supremacy of the monarch; the consolidation of vast territory west of the Holy Roman Empire, incorporating roughly two-thirds of present-day France; and the development in the twelfth and thirteenth centuries of administrative and judicial institutions under the authority of the king. But more damming was the very real fiscal and military dependence of the papacy on the House of Capet in its protracted struggle against the Holy Roman Empire (Van Crevald 2000: 62). For royalists, this could only indicate the very subservience of the Church to the secular world. All that was left was to provide the doctrinal backing necessary to finalize the divorce. This backing took the form of a revival of the Roman legal dictum, Rex in regno suo Imperator est regni sui (the king is emperor in his own realm). French jurists maintained the king possessed “all the prerogatives reserved to the Emperor in Justinian’s Corpus juris and elsewhere” (Nussbaum 1962: 40), including the authority and power to “make orders for the common good and profit as it pleased him” (Ullmann 1965: 156). By the mid-thirteenth century, jurist Jean de Blanot concluded that “a baron who rebels against the king commits the crimen laesae majestatis [treason], the reason being that ‘rex in regno suo princeps est’” (Cuttino 1974: 343). In one stroke of the pen—backed as it were by the mightiness of the sword—all pretenders to the throne, including all barons and feudal authorities, were committed to obedience and service to the king and state. But royalists argued further. First, since political (secular) authority in theory and form preceded Christianity, it could not be subservient to the theological. Second, with the assumption of final and absolute authority, or what was called liberum regimen (unencumbered rule), the functional scope of rule would

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naturally expand and come to encompass legislative capacity, property dispute resolution, and taxation,5 thereby eclipsing papal rule. Third, royalists quickly grasped the significance of the papal failure to account for sovereignty’s location in the interlude between the death of the pope and the election of his successor. The selection process was dependent upon cooperation of fallible human beings—the Council of Cardinals—and not on the grace of God. Plenitudo potestatis, so the royalists argued, appeared less an incontrovertible grant from heaven than a mark of contingency and power. If such power could inhere in anyone, even in a collective body of individuals as in the Council of Cardinals, why could it not inhere in secular leaders who were, practically speaking, carving out substantial domains of rule? Ripped from its ecclesiastical moorings, the plenitude of power (or sovereignty), tempered as it were by reference to the common good, merely replicated papal discourse in that it signified an omnicompetence engendering a sense of personal ownership—dominium—over respective territories. Ostensibly, the royalist argument could have evolved into a corporate, semiconstitutional theory of sovereignty. Instead, it delineated the terms for personal rule. Adaptation of the idea that the emperor’s will possesses the force of law (though the power be derivative from the consent of people) constituted and signified the sovereignty of the French king. The argument henceforth trailed into anti-democratic territory, insofar as it posited that peoples, by investing the king with the power to make law, divested themselves of the said power or, in a contemporary idiom, their original (popular) sovereignty.6 Sovereignty’s doctrinal development took a dramatic turn in mid-thirteenth century Naples. Marinus and Andreas de Isernia, brothers, jurists, and scholars at the University of Naples, reasoned that the borders of the Sicilian kingdom, of which Naples was a part, signified the extent and authority of local law (Ullmann 1965: 196). Practically, the assertion insulated the king from the jurisdiction of the Holy Roman Emperor, which was dismissed by a slight of hand. But when he invaded northern Italy in 1312, in part to quell disputes between Germanic administrators (the Ghibellines) and local authorities (the Guelfs), in part to usurp the imperial Roman title (Cheyette 1970), Henry VII came to feel the effects of what must have seemed to him an academic exercise. Not only did his troops encounter “the military resistance [of] the forces of the king of Sicily, Robert the Wise” (Ullmann 1965: 197), but also resistance by Lombard and Tuscan provincial leaders, long-time allies of the Emperor. Perturbed, to say the least, Henry VII summoned Robert before an imperial tribunal at Pisa on 12 September 1312, at which he charged and subsequently condemned the king in his absence for high treason, inciting revolt, expelling imperial administration, and concluding treaties beyond the authority of a king.7 Legally, the dispute pivoted on the Isernian thesis. Cognizant that Sicily was technically “a fief of the papacy,” Robert the Wise submitted the case

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to the pope questioning whether the emperor by law could take steps against the king. Clement V (1305–14), who, as van Crevald notes, voluntarily sequestered himself at Avignon, thereby “turning himself into the [French] king’s prisoner” (2000: 63), officially and solemnly endorsed a point of view which was hitherto merely a doctrine, that a king was sovereign, that he could not be cited before a tribunal of any other king, not even before that of an emperor, and that as king he could not commit high treason against another king, because he was no subject. (Ullmann 1965: 197) Clement’s ruling was no less than revolutionary: he advanced a juridical conception of sovereignty armed with an exclusive conception of the territorial state. To successive popes, the decree could only appear Janusfaced, for if it enjoined others to recognize and respect mutually exclusive domains of authority and jurisdiction, it likewise nullified both the Holy Roman Empire and papal claims to universal rule. What Boniface VIII but ten years prior vigorously defended—medieval universalism in the form of papal authority over earthly kings—Clement inadvertently destroyed in defense of a fracturing Christendom. Nation If mysticism fractured Christendom’s universal edifice,8 Clement’s decree translated politically and legally this individualist assault, thereby laying the groundwork for events at Constance during which a logic of particularity (sovereignty) received its final political expression in nationalistic terms (the logic of identity). Prior to Constance, natio, or nation, had two general connotations: (1) as a signifier of identity with only vague political connotations; and (2) as an organizational tool employed by church councils. As a mark of identity, natio referred singularly to gens or familia, “a group of persons nearly related by blood.” In the plural, natio acquired a more general sense of gentes or populi, as used by Cicero and St Jerome, indicating “the indefinite hordes of humankind” outside the Judeo-Christian world: Psalm 106, 47 reads, “Salve nos fac Domine Deus noster et congrega nos de nationbus” (“Deliver us, O Lord our God, and gather us from among the nations” (Loomis 1974: 346) ). Used in this sense, natio brackets and indeed constitutes a “European inside” set against the multitude of horsin, or non-European “outsiders” (Bloch 1961: 423). Yet ruptures in a presumed common, European identity appeared as early as 888, at which point a dispute over the claims to succession of Charlemagne arose between his self-professed descendents (the Carolingians of the authentic Frankish kingdom—rex Francorum—in the West) and the Saxon-ruled Eastern Frankish kingdom. The Franks, whose

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speech derived from Latin, branded the Saxon vernacular diutisc, meaning “the speech of the people.” Prima facie, the label appears quite innocuous. But diutisc, a derivative of teutisci, means “without etymology.”9 Constituting a slur against the Saxons for their indeterminate heritage, the term and its variants “Teutonic” and “deutsch” not only stuck, but, more importantly, put into unequivocal doubt the Eastern Franks’ claim of inheritance and thus laid to rest their pretensions to power. Thirty-two years later, the “Salzburg annals mention the kingdom of the Theotisci (or Teutons)”—what today is Germany. Nation thus came to refer to “the countryside in which a man was born, his native region,” his patria, or, alternatively, “any group of persons connected by bonds of common traits or pursuits especially if to these were appended ties of common birthplace, language, or habitation” (Loomis 1974: 346). Natio also had an administrative, organizational connotation as evidenced by the placement of attendees at church councils such as those at Lyons (1274), Vienna (1311–12), and Pisa (1409). After Vienna, Pope Benedict XII (1334–42) formalized a quadripartite division of the Roman obedience to facilitate and standardize the collection of “episcopal procurations” (ibid.: 357). Under this scheme, the first part or nation comprised France, Navarre, and Majorca; the second Germany, England, Hungary, Bohemia, Poland, Norway, Denmark, Sweden, and Scotland; the third the Spanish kingdoms (Castile, Leon, Aragon, and Portugal); and the fourth Italy, Sicily, Sardinia, Corsica, Greece, Slavonia, and Cyprus (ibid.: 352; see also Fillastre 1961: 316f.). Most likely, Benedict replicated the associative connotation of “nation” as employed by medieval universities and trading and merchant communities; for example, the “silk merchants of Lucca had their nations in Genoa, Rome, Paris, Bruges, and London” (ibid.: 346f.; cf. Wright 1930: 64ff.). Such nations or associations were contingent on “the presence of enough men from a single locality, speaking the same dialect and addicted to the same habits,” and functioned as a unit to facilitate mercantile exchange, production, or intellectual edification. Later ecumenical councils reproduced their structural features, including by-laws and the election of representatives, thus lending an institutional logic to the term “nation.” These associative, institutional, and identity oriented meanings of national division mired the Church in a not quite irremediable crisis. On occasion of the death of Pope Innocent VI in 1378, the Council of Cardinals, the self-appointed regulative body of the Church, elected an Italian, Urban VI, to the papacy. Thinking Urban to be “totally unfit, if not insane,” the council recoiled and elected a French cardinal, Clement VII, in Urban’s stead. Support from the Italian principalities forced Clement to retreat to Avignon under the protection of the French king (Hastings 1971: 195f.; Ullmann 1965: 220ff.). Soon, each pope had his “national” adherents: while England, Flanders, Germany, Italy, Bohemia, Hungary, and Poland supported Urban; Spain, Sicily, Scotland, Portugal, Cyprus, Majorca, Rhodes, and Genoa

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aligned with Clement (Fillastre 1961: 201). The Council of Pisa, convened in 1409 to settle the dispute, complicated matters by opting for a third pope, which made settlement at Constance imperative. At Constance, the delegates assembled according to the Benedictine plan. But the English and the Germans “bitterly opposed” the “order of the nations”; both were “unwilling to include any cardinals among the general deputies” (ibid.: 296). Specifically, the English detested relegation under the German nation after having obtained separate nation status at Pisa, which elicited an outburst from the King of Aragon: if the English “constituted a nation,” then “the Council [must] . . . decree that the envoys from Aragon constituted a nation” separate from Spain. Guillaume Fillastre, principal diarist of the Council, too, objected on a slippery-slope argument, noting that if the delegates from Aragon, “who are only six, are permitted to form a nation, [t]hen the delegates from Castile will form another . . . [and as] a result, Spain will constitute a third of the Council, which is absurd. . . .” Soon, he conjectured, the Council would be populated by nations such as Hungary, Dalmatia, Denmark, Norway, Sweden, Bohemia, Poland, Ireland, Savoy, Lorraine, Sicily, and still others (ibid.: 297). After two months, “it was conceded . . . that within the Spanish nation the envoys . . . of the King of Aragon . . . should have the weight and authority in voting of the sum of the prelates and clergy . . . The concession was extorted rather than obtained” (ibid.: 298). But Fillastre was right: the Portuguese and Sicilians soon clamored for their own seats (they were subsumed under the Spanish general nation), and the Portuguese, on 15 October 1416, even walked out of the Council in protest (ibid.: 299). The Germans attempted to appease by voluntarily acceding to Spain its placement as “third nation” in the administrative scheme, so that the English could attain the status of fourth nation, with the Germans becoming the fifth (ibid.: 304f.). But France objected (perhaps owing to her defeat by English forces at Agincourt in 1415) when a motion appeared before the Council to abolish the significance of prioritizing the nations (ibid.: 307). On 24 December 1416, the King of Navarre issued a decree “denying any significance or prejudicial character to the order of the seating of the nations. . . . ‘The order in which the nations sit, vote, affix their seals, etc., confer no superiority and prejudice no nation’s rights and dignity’”—and the cardinals answered “placet,” approved (ibid.: 308). Though the cardinals approved, the French remonstrated. England was a “particular nation” in contradistinction to the principal (administrative) nations of the Benedictine plan, and hence lacked the credentials proper to a general or “principal” nation (Fillastre 1961: 316; Loomis 1974: 356). General nations represented and governed particular nations; to wit, the Poles, Hungarians, and Bohemians (particular nations) remained under German authority. England could not claim such status. Indeed, that neither Wales nor Scotland, nor but a “very small part of Ireland” sent delegates to Constance underlined English

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status as a particular nation. Hence, the French smugly declared, the English ought to return to the German delegation (Fillastre 1961: 317, 337f.). But should the English demand further stymie the Council, the French offered a concession: should the English find it disagreeable to return to the German nation, then the “three other nations [should] be divided each into several particular nations, proportional to the English nation” (quoted in ibid.: 319). In a “soaring flight of imagination,” the English radicalized the concepts of particular and general nations. The general nations of the papal obedience, so the English maintained, served an administrative function and did not fix or establish “an order for nations in a general council. . . . First and finally, [Benedict’s] aim was to prescribe limits for the payment and receipt of procurations” and, therefore, “we ought not to stretch laws designed for different purposes” (quoted in ibid.: 339). Besides, the English exhorted, like the French and Germans nations, they too were comprised of particular nations, eight to be specific, namely: England, Scotland, and Wales, the three that make up Britain, the kingdom of the Sea, and four great and notable kingdoms in Ireland, . . . namely Connaught, Galway, Munster, and Meath, as the registers of the Roman Curia list them . . . There is also the notable principality of John, prince of the Orkneys and other islands, about sixty in number, as large as or larger than the realm of France . . . There are ten provinces in the English nation, of which eight obey the English nation, and in seven of which the King of England possesses the temporalities in full peace. Soon, by God’s grace, he will possess the rest. (quoted in ibid.: 340, emphasis in original)10 In the eyes of her delegates, England was as a general nation that possessed all the attributes of authenticity, whether a nation be understood as a race, relationship, and habit of unity, separate from others, or as a different language, which by divine and human law is the greatest and most authentic mark of a nation and the essence of it . . . or whether it be understood, as it should be, as an equality of territory with for instance, the Gallic nation—in all these respects the renowned nation of England or Britain is one of the . . . nations that compose the papal obedience and I say, speaking without disparagement or injustice to anyone, possesses as much force and authority as the renowned nation of Gaul. (quoted in ibid.: 344, emphasis added) Linguistic diversity within the British Isles—including English, Scotch, Welsh, Irish, Gascon, and Cornish—only vindicated the delegation’s belief that England, like the others, was an authentic nation, one comprised of

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different regions with distinct languages, but ultimately bound by common heritage, loyalties, and history. The argument secured England’s recognition and in the process introduced what would become an elemental principle enshrined in all international organizations today: one vote per nation. But the English delegates spoke with decided injustice and disparagement, calling it “odious,” “prejudicial and arrogant . . . to call men who are neither French nor Gauls, nor subject to them, Frenchmen or Gauls” (quoted in ibid.: 345), all the while denying the Poles, Bohemians, Hungarians, and Danes a status all their own. Independent nations demand conditions within which local rule may flourish—and which may assert their unique perspectives when in the company of other nations. The English maintained: [a]n equal has no authority over an equal nor one great power over another . . . [I]t does not seem reasonable that a horde of prelates from one region . . . brought up here for the purpose of outnumbering the rest of the assembly, should subject all parts of the world, with different habits and modes of life, to their will in Council . . . Such a law refutes the definition of law and the rules of politics. No rule is so strong as one adopted by universal consent. To issue laws without that consent is to expect fruit on a tree that has no roots. For laws are made when they are promulgated, but confirmed when they receive the assent of those who live under them . . . Thus . . . the nations . . . should be counted as equal, and each nation should have equal rights, even though there are greater numbers in one than in another. (quoted in ibid.: 347f., emphasis added) The logic is unmistakable: a system of relations between nations, or independent polities defined in terms of identity and bolstered by material power, if initially entwined in disputes over religious differences, emerged out of an ecclesiastical structure that hitherto defined relations among European entities. But military prowess alone could not a sovereign make, since less militarily powerful but wealthy states such as Venice, Florence, Milan, and Naples—all Catholic—existed within the structure of international relations, though they eventually succumbed to the imperial pretensions of France and the Austro-Spanish Hapsburgs in the late fifteenth century. As the system developed, it proved not impermeable to national (and religious) identity, and hence independence, claims of less powerful entities previously denied sovereign status. The fracturing of the Catholic sovereign states-system by the admission of Protestant German principalities, Switzerland, and the Netherlands disaggregated (Catholic) identity from sovereignty and proved instrumental in the eventual expansion of the statessystem beyond Christendom. Constance did attempt to advance the new political arrangement by decreeing in the 1417 Frequens “that general councils should henceforward

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be regular: the next in five years time, the next after that in seven years, by which time the reform of the Church might be completed, and thereafter every ten years” (Wight 1977: 133; see also Fillastre 1961: 407–12). In this sense, “the nations [at Constance] . . . became . . . constituent parts of the council and the council itself distinctly a federation of nations” (Loomis 1974: 348f.). For Wight, the framework represented “the greatest attempt before the League of Nations to provide a legal and regular constitution for the international system, a constitution on constitutionalist principles.” But only two councils convened: one at Siena (1423), the other at Basle (1430). Each prorogued, abortive without success. In its stead, systems of alliance —namely, a concert system on the Italian peninsula—and diplomacy emerged, manifesting the idea that states could manage their own relations independently of the Church. That Constance reigned in papal power is nowhere more evident in the fact that if papal decrees were once imposed on Christendom, they now had to be negotiated bilaterally between the pope and each nation via the concordat—the papal version (and precursor) of the modern treaty. The settlement also opened a space for the exercise of international relations disentangled from the papacy, expanding, as it were, forms of diplomatic interchange developed by the independent Italian city-states as early as the fourteenth century (Mattingly 1988). After Constance, diplomatic activity between England, France, Spain, the Granadan Moors, Naples, Milan, Venice, and Florence intensified over a variety of issues, including, among others, spheres of influence and trade. The shuttling of ambassadors gave way to resident embassies that first appeared on the Italian peninsula and then gradually spread across Europe. Perhaps it was this intensification, this formalization, this systematization of relations, this professionalization of a class of representatives that doomed Constance’s international federative plan. Perhaps, further, the plan failed for it represented too much of a medieval modus operandi, ill equipped to handle the vicissitudes and immediacies of inter-state life. While the struggles of European sovereigns may initially have been religious in nature, the conflict was played out less in the confines of the Church than in the venues of state institutions and the streets. Later, religious liberty and the Reformation crises of sixteenth-century Europe gave birth to political liberty (see Philpott 2001: ch. 6; Zagorin 2003), a concept and practice that only reinforced the constitutive nature of sovereign statehood as Protestant actors clamored for the same liberties and juridical standing as the Catholic sovereigns of England, France, Germany, Spain, and the Italian city-states. The practice of early-modern sovereigns thus produced both a powerful imaginary divide to separate “domestic” from “international” politics, inside from outside (Bartleson 1995; Walker 1993), and the idea that relations between them were characterized more by conflict and discord than harmony and peace.

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Early models of sovereignty Hierarchical sovereignty: Bodin After roughly three centuries of development, sovereignty’s time for formal theoretical exposition had come. Bodin laid the groundwork with the 1576 publication of Six Books of the Commonwealth. But beginning with Bodin may seem an unlikely choice in a project such as this. After all, he situated his sovereign at the apex of an ascending series of private and minor public associations. While each association retained authority to make custom and particular or “subordinate” law within its spheres of competence and concern (1955 [1576]: I.viii.31),11 the nomothetic “power to make [general or supreme] law binding on [all] subjects . . . regardless of their consent” belonged to the sovereign (ibid.: 32, and II.i.51). More damning, Bodin’s sovereign stood independently of the law, for “no one who is subject either to the law or to some other person” qualifies as sovereign (ibid.: 28). The construction easily lends itself to rather unforgiving portraits. R.B.J. Walker (1993: 165) depicts Bodinian sovereignty as “power over citizens and subjects, unrestrained by law.” Christian Reus-Smit (1999: 96) concurs: “monarchical authority is thus unconditional, it is ‘absolute and perpetual.’” Their interpretations unequivocally substantiate a presumably omnicompetent, unaccountable, imposing “mortal God”12 that subjugates difference and rights for ostensibly arbitrary reasons. While technically correct—each lifted verbiage from the Republique —such readings reformulate Bodin in the Austinian language of legal positivism and Weberian/neorealist logic of unrestrained, permissive, rugged individualism. But if the commonwealth, defined as the “rightly ordered government of a number of families, and of those things which are their common concern” (Bodin 1955 [1576]: I.i.1), orients action toward the “sovereign good in general, and of each of its citizens in particular” (ibid.: 2f.), how do we account for these unflattering, absolutist readings? I think the problem stems from the tendency to treat “perpetual,” “absolute,” and “indivisible” as synonymous with tyranny, despotism, and rule by fiat (Philpott 2001: 19)—equations Bodin rebuffed (1955 [1576]: II.ii, iv, and v). Surely, that he also located sovereignty in democracies and aristocracies raises an important challenge to conventional interpretations. If Bodin’s sovereign was absolute in ways that many suggest, then how could people in a democratic state simultaneously issue law and be above it (ibid.: I.viii.32)? While Bodin did not miss this logical impossibility, he exacerbates the problem by privileging monarchy as sovereignty’s primary configuration. Given this construction, it is easy to construe the sovereign— one who possesses ultimate nomothetic or legislative and directive powers—as absolutist and potentially tyrannical. What assurances have we that the sovereign would not exercise such authority in any other manner? That Bodin thrice divides monarchy helps clarify. By royal or legitimate monarchy, he means that form of government “in which the subject obeys

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the laws of the prince, the prince in turn obeys the laws of God, and natural liberty and the natural right to property is secured to all” (ibid.: II.ii.56). By despotic monarchy he means “one in which the prince is lord and master of both the possessions and the persons of his subjects by right of conquest in a just war; he governs his subjects as absolutely as the head of a household governs his slaves.” Finally, by tyrannical monarchy he means that form of government “in which the laws of nature are set naught, free subjects oppressed as if they were slaves, and their property treated as if it belonged to the tyrant” (ibid.: 56f.). Anticipating Hegel, Bodin favored royal, harmonious, or legitimate monarchy and rejects the other variants because, in despotic regimes, “the king, as natural lord of his subjects, governs them as his slaves, disposing of their persons and their goods as he thinks fit” (ibid.), and in tyrannical monarchies, the king “usurps an improper authority over . . . persons and their possessions, reducing them to slavery, and worst of all, making them the objects of his cruelty” (ibid.: VI.vi.210), thus offending natural law and the demands of justice. We might note, then, that insofar as Bodin’s sovereign was absolute, it was so in a final and ultimate, not total or arbitrary sense (King 1974). Importantly, he avows that “if we insist . . . absolute power means exemption from all law whatsoever, there is no prince in the world who can be regarded as sovereign, since all the princes of the earth are subject” to natural and divine law, and to “human laws common to all nations” (Bodin 1955 [1576]: I.viii.28). Further, Bodin’s sovereign is bound by all custom, promises, covenants, engagements, and laws “which touch the interests of . . . subjects individually or collectively” (ibid.: 30). In other words, the sovereign serves the commonwealth; the commonwealth does not exist for the egoistic, solipsistic purposes of the sovereign. To recall, the commonwealth is defined as the “rightly ordered government of a number of families.” To be “rightly ordered” means to govern “in accordance with the laws of nature” (ibid.: I.i.1f.)—a point that necessarily distinguishes a commonwealth from “a band of thieves or pirates” or from a tyrannical monarchy.13 Its end is its “sovereign good . . . in general, and of each of its citizens in particular.” This sovereign good is, in turn, defined as the pursuit of “the intellective and contemplative virtues” (ibid.: 2f.) in which the discernible encouragement of the virtues tends toward the cultivation of the commonwealth. “[E]xercise of the moral virtues,” or the intellective virtues of prudence (to “distinguish good and evil”), knowledge (to distinguish “truth and falsehood”), and faith (to distinguish “piety and impiety”), should guide the sovereign in governing, for “felicity cannot be found in that imperfect state in which there is still some good yet to be realized” (ibid.: 5).14 Saliently, Bodin avers “that a commonwealth is not rightly ordered which neglects altogether, or even for a length of time, mundane activities such as the administration of justice, the defense of the subject, the provision of the necessary means of subsistence” (ibid.: 5). Bodin highlights the point in considering the origins of the commonwealth. Even if, he notes, “reason and common sense alike point to the

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conclusion that the origin and foundation of commonwealths was in force and violence” (ibid.: I.vi.19), would individuals and families necessarily consent to a form of government that robs them of their lives and livelihoods? Why exchange one anarchic, violent space for another more hierarchical and concentrated space, especially one that presumably divests constituents of rights of self-defense that they previously possessed? Particularly, if a commonwealth is defined specifically as a “rightly ordered government” concerned with “the sovereign good . . . in general, and of each of its citizens in particular,” then how consistent are absolutist readings with Bodin’s argument? True, Bodin confuses. In Book 1, Chapter 6, he argues that “force, violence, ambition, avarice, and the passion for vengeance armed men against one another” and compelled families to unite for mutual defense (ibid.: 18). In Book 4, Chapter 1, he adds consent “among some chance assemblage of men” to the list of possible origins of states (ibid.: 109). The logic of constitution follows a logic of security: several families joined to create towns, towns grew into cities, cities joined to form provinces and regions, and they in turn united to constitute states. With the exception of the “chance assemblage of men,” exogenous forces of violence compelled the creation of community. Yet, we presume, even under conditions of external violence, original citizens must have consented in some manner to pledge their mutual defense and liberty. If their goal was to escape a world of violence and its perpetual threat, then it is illogical to infer the omnipotence, capriciousness, and absolutism of the Bodinian sovereign, which may very well endanger lives of subjects. In one sense, we may consider this act of agreement or assemblage as constituting a “covenant” between ruler and subjects that equally binds both parties. “Neither can contravene it to the prejudice of the other, without his consent” (ibid.: I.viii.30). Contrary to ordinary readings, then, the foundational, constitutive moment in the emergence of a commonwealth must necessarily limit the sovereign’s absolutism in its total, arbitrary senses, and reconfigure it in a final sense. Consistent with Bodin’s rather teleological conception of the commonwealth, curtailments emanating from natural and divine law on the exercise of sovereign prerogative are, dare I use the term, absolute. Contrary to Walker, Bodin explicitly states that “there is no prince in the world who can be regarded as sovereign,” if by sovereign we mean “exemption from all law whatsoever.” “All princes of the earth are subject to the laws of God and nature, and even to certain human laws common to all nations” (ibid.: I.viii.28), and, further, hereditary monarchs are “bound by the oaths and promises of [their] predecessors” (ibid.: 35). At minimum, natural law requires “the keeping of agreements and respect for private property,” and binds the sovereign both to “the just and reasonable [agreements] which touch the interests of his subjects individually or collectively,” and to the interests of other princes with whom he has concluded agreements (ibid.:

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29f.). In the case of conflicting laws, sovereigns should always prefer honorable laws or laws conforming to “what is natural and right,” to dishonorable profitable laws (33f.). The prince is bound to “all that tends to the benefit of the kingdom” (ibid.: 36), and to this end, “the public good must be preferred to the particular, and that the subjects should give up not only their mutual antagonisms and animosities, but also their possessions for the safety of the commonwealth” (ibid.: 35).15 Obligations deriving from natural law could have nothing but practical effects: For the obligation of a prince is twofold. It arises, on the one hand, from natural equity which requires that agreements be kept and, on the other, from the prince’s good faith, which he ought to honor even if he suffers loss because he is the formal guarantor to all his subjects of good faith among themselves, and because there is no crime more detestable to the prince than perjury. That is why less freedom is given to a prince by the law than to his subjects when it is a question of his promise. (1992 [1576]: 1, viii, 35, emphasis added) Surely, the Bodinian sovereign appears less omnipotent and less absolute than some maintain, for the good of the commonwealth, closely aligned with justice, ranks above profit and constrains sovereignty (1955 [1576]: VI.6.vi, 209f.). The end or telos of the commonwealth is, to reiterate, “true felicity” defined in relation to the cultivation of “the intellective and contemplative virtues” (ibid.: I.i.2f.). Later, he rephrases that purpose as justice (ibid.: VI.vi.204), for “the nearer a kingdom approaches to realizing harmonic justice, the nearer it is to perfection” (ibid.). Justice means the proper distribution of rewards and punishments, and of those advantages due to each individual as a matter of right. This distribution must be based partly on the principle of equality and partly on that of similarity, which properly conjoined issue in harmonic justice. (ibid.) If commutative justice, “or the principle of equality, is like an arithmetical progression—3, 9, 15, 21—arising from the addition of a constant number,” distributive justice, or the principle of similarity, is like a geometrical progression—3, 9, 27, 81—made by multiplication in a constant ratio. The only way of combining these diverse kinds of proportion is in a harmonic progression— 3, 4, 6, 8, 12—in which alternate terms are in a constant ratio, but consecutive terms linked by a number alternately added and multiplied. (ibid.)

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Curiously, Bodin analogizes harmonic justice to marriage laws: It is better if the rich burgess marries a poor noblewoman [rather than a rich one], or a poor gentleman a rich commoner . . . This is to be preferred to marriages between people quite alike in all respects. We see the same thing in business, for the most successful partnerships are those between a rich sleeping partner and a poor man of ability to run the business. There is both equality and similarity in them. Equality in that each has some contribution to make, similarity in that each lacks some indispensable attribute . . . (ibid.: 205) Harmonic justice avoids the “unmitigated rigidity of the [egalitarian] commutative principle, and variability and uncertainty of the distributive” (ibid.: 206) by recognizing the contingency of law (which lays down general rules) on equity (which is “dependent on the circumstances of particular cases”). Bodin’s insight speaks rather forcefully to contemporary concerns with human rights and individuality; as a resounding endorsement of justice, his analogy cuts across class barriers and clarifies a common good. Bodin’s sovereign appears as chief guarantor on earth of divine and natural law (justice). On one translation: “if justice is the end of law, the law the work of the prince, and the prince the image of God, it follows of necessity that the law of the prince should be modeled on the law of God” (ibid.: I.viii.36). On another: “the prince is bound to the laws of nature, and if the civil laws are equitable and reasonable, it follows that princes are also bound to civil law” (1992 [1576]: 32). True, in situations in which civil law codifies natural and divine law, the sovereign may not be subject to it; but these situations are particular and limited so long as they benefit the common good and harmonic justice. Two examples illustrate. When the sovereign “forbids the bearing of arms on pain of death in order to put an end to murders and seditions [which are contrary to divine and natural law], he ought not be subject to his law.” On the contrary, the sovereign “should be well armed to protect the good and punish the wicked” in the name of the public good (1955 [1576]: I.i.34). Here he recognizes the justness of certain uses of force designed to uphold a greater good. Similarly, his arguments against slavery clarify: I think however that strong objections can be urged against [pro-slavery arguments]. I agree that servitude is natural where the strong, brutal, rich, and ignorant obey the wise, prudent, and humble, poor though they may be. But no one would deny that to subject wise men to fools, the well-informed to the ignorant, saints to sinners is against nature . . . One sees in fact how often quiet and peaceable men are the prey of evildoers . . . As for the argument that slavery could not have been so enduring if it had not been contrary to nature, I would answer that

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the principle holds good for natural agents whose property it is to obey of necessity the unchanging laws of God. But man, being given the choice between good and evil, inclines for the most part to that which is forbidden, and chooses evil, defying the laws of God and of nature. So much is such a one under the domination of his corrupt imagination, that he takes his own will for the law . . . It is sufficiently obvious that there can be no more cruel and detestable practice than human sacrifice. Yet there is hardly a people which has not practiced it, and each and all have done so for centuries under the cover of piety . . . Such things show how little the laws of nature can be deduced from the practices of men, however inveterate, and one cannot on these grounds accept slavery as natural. Again, what charity is there in sparing captives in order to derive some profit or advantage from them as if they were cattle? For where is the man who would spare the lives of the vanquished if he saw more profit in killing than in sparing them? (I.ii–v.16f., emphasis added)16 Or, further still, the prince’s edict can further a common good defined in terms of individual rights and liberties: if the common law of peoples is unjust, the prince can depart from it in edicts made for his own kingdom and forbid his subjects to use it. That is the way the law of slavery was handled in this kingdom, even though it was common to all peoples. And this can also be done in other matters of a similar nature provided that the result is not contrary to the law of God. For if justice is the end of law, law the work of the prince, and the prince the image of God; then by this reasoning, the law of the prince must be modeled on the law of God. (1992 [1576]: I.viii.45, emphasis added) In Bodin’s scheme, the prince can be, simultaneously, originator of the law (civil law), subject to the law (natural law as embodied in civil law), and above the law (both civil and the law common to peoples—or jus gentium, as in the case of slavery—only when that law contravenes natural law or upheld the greater good). Against ordinary interpretations, we can read into Bodin normative advance in political life centered on sovereignty principles and practices. Let us summarize Bodin’s insights in democratic sovereignty proposition No. 1: sovereignty, being about justice and a common good, vigorously defends the individuality of all citizens. We shall call this sovereignty’s “individuality and human rights” thesis. Yet humans are fallible. Bodin failed to construct viable institutional restraints on the potential usurpation of power—an oversight to be sure considering his bold statement that “man, being given the choice between good and evil, inclines for the most part to that which is forbidden, and chooses evil, defying the laws of God and of nature.” Sovereigns alone

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cannot be relied upon to ascertain the content of a common good. Here, Bodin’s nomothetic, hierarchic sovereignty falters. Disturbingly, when commonwealths degenerate into despotism or tyranny, Bodin denies any right of reproach. Subjects remain “bound till the ruler has expressly abrogated the law” (1955 [1576]: I.viii.34; II.iv–v.67). When the sovereign contravenes natural and divine law, subjects may disobey the sovereign but then “must seek refuge in flight, go into hiding or suffer death rather than attempt anything against [the sovereign’s] life or honor” (ibid.: 68). Yet that restriction applies domestically. Internationally, Bodin distinctively permits “virtuous princes” to “proceed against a tyrant either by force of arms, diplomatic intervention, or process of law” in defense of an oppressed people. He maintains: for just as it is right and proper for anyone to take forcible action to defend the honor and life of those who are oppressed unjustly when the law offers no remedy, so it is highly honorable and befitting a prince, to take up arms in defense of a whole people unjustly oppressed by a cruel tyrant. (ibid.: 66, emphasis added) Intervention, moreover, is also warranted in cases in which princes exhaust the finances of the treasury and “ground” “the faces of the poor . . . to serve the benefit of the rich” (ibid.: 64). Felicitously, he argues: [i]nstead of one tyrant they suffer ten thousand. When there is too great generosity of this kind, wicked men, assassins, and disturbers of the peace of all kinds commit their evil deeds with impunity, for the good and liberal king cannot bring himself to refuse a petition of grace. The public good is sacrificed for the benefit of individuals, and the whole burden of the commonwealth falls on the poor. (ibid.: 64)17 Anticipating Hegel, and measured against his discussion of harmonic justice, Bodin’s sovereign must perforce develop a class consciousness and act to placate its more seditious effects. The point is not necessarily to condone Bodin’s notion that fiscally irresponsible policies may warrant intervention—however tempting that might be—but to recognize that Bodin exhibits a deep, vigorous concern for the equal worth of each individual and for maintaining a public space fortified with “minimal obligation to one another” (Creppell 2003: 48). In other words, Bodin’s insights impose a solemn duty on the sovereign since institutionalized, operational procedures may inevitably and substantively inhibit the rights and liberties of people. Let us call this democratic sovereignty proposition No. 2: intervention in defense of the common good in cases of egregious abuses by other sovereigns. We shall derive from this democratic sovereignty’s “internationalist”

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thesis, which permits, in the idiom of The Responsibility to Protect (2001), the yielding of the principle of non-intervention to the international responsibility to protect populations when they “suffer serious harm as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it” (2001: xi). Lacking just restraints, intervention remains controversial business for it could easily become an instrument of domination. While the United Nations General Assembly (UNGA) is actively engaged in formulating “threshold” or “just cause” criteria as well as operational principles to guide interventionist forces, Bodin omitted such principles. As we shall see with Althusius, democracy and human rights are retarded, and the common good wielded as a potential instrument of oppression and domination from above. Confederative sovereignty: Althusius Althusius provided a perfect counterpoint to Bodin, though in certain respects the two cohere. Each erected a commonwealth from an ascending series of private and minor public associations, with each level possessing authority to promulgate its own customs and laws. Each defined sovereignty purposively, teleologically, in terms of a common good. And within each account, sovereignty founders on the shoals of usurpation of political authority and power. The similarities end there. If Bodin’s sovereignty resides at the apex of the republic in hierarchic, imposing, and, as I define in Chapter 2, transcendent ways, Althusius’ sovereignty inhered in the collective association as a property of all constituents. If Bodin’s sovereign remained largely unmediated by the sub-associations comprising the state, then the ephors and various minor public associations tempered Althusian sovereignty. Modeled on the United Provinces of the Netherlands, Johannes Althusius’ Politica Methodice Digesta, Atque Exemplis Sacris et Profanis Illustrata conjoined minor public associations in a universalis publica consociato through a series of contracts by which constituent units pledged their mutual energies and expenditures to the “right of the realm” or the common benefit (Althusius 1964 [1614]: 61). The entire construction may be thought of as a series of building blocks of self-governing units consensually and contractually bound to one another. Being weak in a material sense—no doubt Althusius conjures the image of the rebellious “Dutch” provinces against the Spanish who ruled “by force and arms against the fundamental laws and hereditary ways of the commonwealth” (ibid.: 186)—families unite with collegia18 to form cities, which join with smaller hamlets, villages, and towns to form provinces, which in turn, by means of a contract, unite “in one body by the agreement of many symbiotic associations and particular bodies, and brought together under one right” (ibid.: 61f.). Each level of the confederation generates its own laws (leges) and rights ( jura) to realize its particular ends (ibid.: 88); together, they “obligate

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themselves to hold, organize, use, and defend, through their common energies and expenditures, the right of the realm ( jus regni)” (ibid.: 61). The construction is significant because it ensures that political activity has direct relevance to and responsibility for people by permitting each association to give direct and immediate effect to its own ends.19 We might call this the principle of subsidiarity. Yet though he stressed the intrinsic value of traditions and customs, Althusius nevertheless thought particularity of interest to undermine associations, whether of family or corporation, city or province, region or state: hence the emphasis on symbiotic, associative life. Communities sustain individual endeavors through common energies and expenditures. Each unit contributes to the wider community in which it exists, and in turn extracts from it, symbiotically, the means for its subsistence. Dutch independence, after all, owed not to revolt by individual peoples but by their collective union and cumulative might to resist imposition from above, which in part explains why Althusius did not attribute sovereignty to individuals, but in the communities constitutive of the state (contra Onuf 1998: 132). Members, or what Althusius calls symbiotici, are connected “body” and “soul,” two recurring metaphors throughout Politica. His choice of the Greek symbiosis—a compound of συµ meaning “together” and βιος meaning “life”—signifies the importance to which he ascribed agreement and, once constituted, the necessity of mutual assistance and purpose in sustaining community (universitas) (1964 [1614]: 87). Symbiotici are bound by consensus, together with trust extended and accepted among the members of the commonwealth. The bond is . . . a tacit or expressed promise to communicate things, mutual services, aid, counsel, and the same common laws ( jura) to the extent that the utility and necessity of universal social life in a realm shall require . . . Plato rightly said that this trust is the foundation of human society, while lack of trust is its plague, and that trust is the bond of concord among the different members of a commonwealth. (ibid.: 62) This act of association in turn generates that condition of right ( jus regni), or jus majestatis, meaning sovereignty. By right or sovereignty he understands the means by which the members, in order to establish good order and the supplying of provisions throughout the territory of the realm, are associated and bound to each other as one people in one body and under one head. (ibid.: 64) Because it is directed toward the purposes of collective order, preservation, and “just life” (ibid.: 61), sovereignty is “indivisible, incommunicable,

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and interconnected” (ibid.: 66). Let us call this democratic sovereignty proposition No. 3: sovereignty, invested in the people and their associations, emerges from their collective association for their mutual benefit. From this, we derive the “populist basis of sovereignty” thesis. The resulting confederation, however, being too large for people to administer directly and democratically, necessitates means by which the symbiotici (constituents) “entrust their administration to ministers and rectors elected by” them (ibid.: 88). Such delegation of responsibility, to reiterate, does not divest the members of right or sovereignty; right emerges as a result of the amalgamation of minor public associations and therefore inheres in the collectivity. However, constituents do delegate their “original” power to administer the two supreme tasks that issue from right: jus epemeletekon, or “provision[s] for proper management,” and jus eftakteekon, or “good ordering” (ibid.: 87). Management he consigns to ephors, a special class of representatives “elected by the united and associated bodies” to whom “the supreme responsibility has been entrusted for employing its power and right” (ibid.: 92, 94); ordering he consigns to the supreme magistrate who, selected by the ephors, administers the laws of the association and “commands compliance with them” (ibid.: 115). Under this arrangement, administrators “direct the actions of each and all of its members” and prescribe “appropriate duties for them” toward the association’s end (ibid.: 64). Administrators assume “a share of the function of governing, [but] not the plenitude of power” which emanates from and resides in “the consent and concord of the associated bodies” (ibid.: 66). Administration is entrusted to the elected ministers and curators by agreements made in the name of the whole people, or by the body of the universal association. These ministers are expected to do good and not evil . . . and to serve the utility and welfare of the associated political body . . . For the commonwealth or realm does not exist for the king, but the king and every magistrate exist for the realm and polity. (ibid.: 88) Sovereignty—or authority—thus supersedes power, which is exercised only as a conditional grant. As such, sovereignty qualifies power in terms of “the utility and necessity of human social life” and directs power’s exercise toward the “regard and care for the genuine utility and advantage of subjects” (ibid.: 68). In this respect, power, albeit supreme, cannot be absolute in any arbitrary, total, tyrannical sense. Administrators “have only the use and exercise of power for the benefit of others, not the ownership of it” (ibid.: 69). Let us call this democratic sovereignty proposition No. 4: governments exercise conditional grants of authority, and are bound by “the regard and care for the genuine utility and advantage of subjects.” From this, we derive the “sovereignty for a common good” thesis.

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The attractiveness of Althusian confederative sovereignty rests on what we might call subsidiarity, or the affirmation that decisions affecting particular communities are best left to those communities. Importantly, Althusius ties his confederative sovereignty to the establishment, cultivation, and conservation of social life, the end of which is “just, comfortable, and happy symbiosis” (ibid.: 12). By doing so, he extricates sovereignty from imposing juridical or nomothetic conceptions and ties it fundamentally to the idea of a common good. Yet confederative sovereignty’s disadvantages rest on its triple abstraction: first, in moving from minor public association to the formation of state; second, in the selection of ephors; and third, in the selection of a supreme magistrate by the ephors. Theoretically, ephors are entrusted with the responsibility to determine, sustain, and advance the good of all, as predetermined by the union. Ephors, moreover, mediate between the members of the commonwealth and the supreme magistrate. Should ephors fail in their prescribed capacities, power theoretically reverts to minor public associations. Surely, this reflected the material circumstances of the Dutch rebellion against Spanish rule; independence was achieved by aggregate, not individual, power. Thus a confederation of equally sovereign members provided the best insurance against an imposing central authority or, on another extreme, plebiscitary despotism in which majorities rob minorities of rights. But what happens when the supreme magistrate usurps authority? Althusius considered this possibility. Those who exceed the boundaries of administration entrusted to them cease being ministers of God and of the universal association, and become private persons to whom obedience is not owed in those things in which they exceed the limits of their power. (ibid.: 93) Oddly, though, he categorically denies members the right of rebellion and reserves revolution—being serious business—for the ephors. “Subjects and citizens,” he avers, who love their country and resist a tyrant, and want the commonwealth and its rights to be safe and sound, should join themselves to a resisting ephor . . . Those who refuse to help the resisting ephor with their strength, money, and counsel are considered enemies and deserters. (ibid.: 188) [P]rivate persons may do nothing by their private authority against their supreme magistrate [government] [in the case of tyranny], but rather shall await the command of one of the [ephors] before they come forth with support and arms to correct a tyrant . . . (ibid.: 190)

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No doubt, Althusius celebrates the ephors of the early Dutch republic who, having been entrusted by the state “the care and defense of . . . rights against all violators, disturbers, and plunderers, even against the supreme magistrate . . . the King of Spain,” successfully ousted Spanish absolutism (ibid.: 101). Somewhat contradictorily, then, while Althusius divests individuals of the right of rebellion, in the end he holds individuals responsible if they fail to support ephors in such rebellion. The will of the members is quite undemocratically subordinated to the will of the ephors, thus robbing his theory of sovereignty of its most powerful element—a more direct, democratic sovereignty for a common good. Singular sovereignty: Hobbes Civil war (its history, reality, and possibility) figures significantly in early theories of sovereignty, and in this respect, Hobbes does not differ from Bodin. Each defended a strong, centralized sovereignty to maintain, and in some cases impose, order upon a multitudinous population with diverse interests and passions. To this end, each constructed a mortal god poised at the apex of the commonwealth directing all beneath it. And each justified such rule by an ostensibly natural and inalienable right to rule subjects from above, a right that essentially divested in varying degrees entire populations of the right to self-governance. Yet while Bodin admitted various sub-associations into his commonwealth—a mirror of the French state— Hobbes treated subjects atomistically since, in his view, none possessed meaningful associative life prior to the commonwealth, having lived lives “solitary, poor, nasty, brutish, and short” (Hobbes 1994 [1668]: Part I, ch. xiii (9), p. 76). Their unity derives from the erection of a common power to keep them in awe, from, in short, their consent to live under this singular mortal god—Leviathan. Like Bodin, then, Hobbes receives the same dire treatment: predatory, aggressive sovereigns ruling by fiat over diverse subjects consumed by selfish motives. Such readings underscore the rights-deficient, competitive nature of life among subjects, and the necessity of controlling such passions and interests by overwhelming authority. The one-step contractual process in which all submit to the rule of Leviathan offers no distinction between state and society, in part because no substantive distinction can be made. The singularity and omnipotence of sovereign will must perforce transcend equally singular subjects and be poised above them (Camilleri 1990: 17). Though Hobbes commands this singular will “to direct [the] actions [of all] to the common benefit,” to preserve their lives, and “to secure them in such sort as that . . . they may nourish themselves and live contentedly” (Hobbes 1994 [1668]: II.xvii (12–13), 109), there are few assurances that the sovereign agent will not act toward the contrary. Because they authored “all the actions and judgments of the sovereign instituted” (ibid.: II.xvii(5–7), 112f.),

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subjects cannot dissent or claim injury. The Leviathan, having been founded on the fear of violent death and the natural inclination to escape it, comes to possess a preponderance of power greater than that which could have ever existed in the state of nature. Security apparently emanates from overwhelming insecurity. This unflattering portrait neglects the fact that sovereignty may likewise inhere in a democracy or in an aristocracy (ibid.: II.xvii (13),109; xix (1), 118), which presupposes some agreement among disparate wills. Congruent with the ordinary, unfavorable portrait, democracy construed as majority rule may produce tyranny by imposing its will on minorities. To parody, women may as majority disenfranchise men in present-day America; nonwhite ethnic groups may disenfranchise whites. More realistically, a majority may repudiate employment and housing protections to homosexuals as it did with Colorado’s nefarious Amendment Two in 1992,20 deny civil rights of marriage and adoption to homosexual couples, or deny inter-racial couples the right to wed.21 Starkly, a Muslim-dominated government may in Sudan deny political and legal rights to animistic and Christian Sudanese in the south, or to Darfurians in the west; majorities may, as they have in the United States, permit the enslavement of minorities—all in the name of a greater good. Each example exposes the limits of value-neutral conceptions about the common good, as well as the deficiencies of procedural, majority rule-based constructions of democracy absent a conception of the equal worth of individuals. Given Hobbes’ construction of the ends toward which sovereign activities be directed, what cause would (Hobbesian) democratic sovereigns have to rule by fiat, especially to their own detriment? Nowhere does Hobbes differentiate those subject to sovereign power and authority, especially with regards to race, religion, ethnicity, or any other measure of difference. Thus, one must infer, all in democracies are subject to the same restraints and directives. The sort of absolute rule Hobbes implies and readers interpret cannot generally hold, since people, as with Bodin, cannot simultaneously make the law, stand above it, and be subject absolutely to it. More pointedly, singular, absolutist will has no automatic parallel in democratic, sovereign systems. People have different interests, desires, needs, opinions, and perspectives that must be reconciled to produce a coherent system of authority and rule; Hobbes intimates as much in his statement that while “a monarch cannot disagree with himself [barring some psychopathology]. . . . an assembly may” (ibid.: II.xix(6), 121). Since individuals in the state of nature are capable of coming to agreement prior to the state, why they cannot after such establishment is illogical. The conclusion of absolute, arbitrary, tyrannical rule does not follow from the premise of sovereignty. Possibility does not entail certainty. Hobbes takes up the point more carefully in Behemoth, in which he maintains that “the power of the mighty” has no foundation “but in the opinion and belief of the people” (1990 [1682]: 16). He maligns equation of the laws

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of the nation with a general good of justice when fashioned out of particular interests. Justice “is a rule of reason by which we are forbidden to do anything destructive to our life, and consequently a law of nature” (Hobbes 1994 [1668]: I.xv(7), 92). Arguing against the hijacking of the British Parliament by particular monied and theological interests which bar ordinary people from “the assembly which makes the Sovereign Court,” Hobbes bemoans that none exist “in the Parliament or in the nation” who could defend and advance the general needs of all (1990 [1682]: 159). Hence his conclusion that “the fundamental laws of the nation,” which are promulgated by oligarchs to whom the people have not consented, “abuse the people.” Provocatively, he suggests that specific class interests informing the law do not perforce obligate or command obedience. A dialogue in Behemoth in which “master A” converses with “pupil B” on the English Civil War, illustrates: B. Tell me first, how this kind of government under the Rump or relic of a House of Commons is to be called? A. It is doubtless an oligarchy. For the supreme authority must needs be in one man or in more. If in one, it is monarchy; the Rump therefore was no Monarch. If the authority were in more than one, it was in all, or in fewer than all. When in all, it is democracy; for every man may enter into assembly which makes the Sovereign Court . . . It is therefore manifest, that the authority was in a few, and consequently the state was an oligarchy . . . The first act of the Rump was the exclusion of those members of the House of Commons . . . because they might else be an impediment to . . . [their] future designs . . . Their next work was to set forth a public declaration that they were fully resolved to maintain the fundamental laws of the nation, as to the preservation of the lives, liberties, and proprieties of the people. B. What did they mean by the fundamental laws of the nation? A. Nothing but to abuse the people. For the only fundamental law in every commonwealth is to obey the laws from time to time, which he shall make to whom the people have given the supreme power . . . And who was there in the Parliament or in the nation, that could find out those evident principles, and derive from them the necessary rules of justice, and the necessary connexion [sic] of justice and peace? . . . The mischief [of the civil war] proceeded wholly from the Presbyterian ministers who, by a long practised histrionic faculty, preached up the rebellion powerfully. B. To what end? A. To the end that the State becoming popular, the Church might be so too, and governed by an Assembly; and by consequence (as they [the Presbyterian ministers] thought) seeing politics are subservient to religion, they might govern, and thereby satisfy not only their covetous

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humour with riches, but also their malice with power to undo all men admired not their wisdom . . . [I]t is not want of wit, but want of the science of justice, that brought [the people] into these troubles. (Hobbes 1990 [1682]: 156–9) The dialogue reveals the supposed existence of an evident, absolute theory or science of justice—without divulging its important features—as well as the dangers of an unqualified conception of justice imposed by the state or those few in command and control. He suggests that a proper understanding and application of justice requires a collective process of discerning “those evident principles” from which to derive “the necessary rules of justice”—which we presume means a dialogic reconciliation of diverse interests and opinions that must serve as a necessary check against despotism, or rule by the particularity of wills. Ultimately, the Leviathan, assembly, or aristocracy must compel the mind more than the body. Here, then, anyone claiming to restructure social and political relations according to a particular vision of the good must be automatically suspect. The want of a science of justice to make clear the connection between justice and peace should be read in conjunction with Hobbes’ earlier claim that “the power of the mighty hath no foundation but in the opinion and belief of the people” (ibid.: 16). Thus, we infer, a just state must be one reconstructed from the ground up so to speak, and made available to, for, and by all. But this begs the question of how this state would come about. Given Hobbes’ proclivity to prioritize order and peace, writing as he did on the heels of the English Civil War, he condemns revolution and any action taken against the sovereign. Yet while this Marxist insight into revolution conflicts with Hobbes, it is an inference we cannot overlook. To be sure, there are few (if any) institutional measures to warrant against sovereign usurpation of power, that is, power and authority directed against the chief end of the commonwealth—peace and justice (1994 [1668]: II.xviii(16) ). On close examination, however, Hobbes lists two impressive conditions under which subjects are absolved of obedience to the sovereign —conditions that, broadly construed, illustrate the depth of his conception of a common good. For Hobbes, the preservation of life is a general public good that cannot be reversed by the Leviathan’s proclamation. Let us call this democratic sovereignty proposition No. 5, or the “incontrovertibility of life” thesis. “Natural,” atomistic individuals consent to civil authority so that such authority will preserve and protect their lives—which then become the Leviathan’s chief ends for “covenants not to defend a man’s own body are void” (ibid.: II.xxi(11), 141). Thus, first, when the sovereign loses the means to protect subjects, and second, under conditions of captivity when the subject’s life is threatened, the subject “cannot be understood to be bound by covenant to subjection, and therefore may, if he can, make his escape by any means whatsoever” (ibid.: II.xxi(20–22), 144f.). Even with regards to this basic respect for individual life, Hobbes’ sovereignty appears

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more formidable than many contemporary neorealist, neoliberal, and constructivist conceptions, especially in light of the recent invasion and occupation of Iraq, and the abuses at Abu Ghraib. But Hobbes does not limit the chief end of the sovereign—being the protection and defense of subjects’ lives—to mere physical protection. The sovereign is likewise held responsible “to secure” subjects, among other things, “in such sort as that . . . they may nourish themselves and live contentedly” (ibid.: II.xvii(13), 109). To this end, Hobbes comments that “no king can be rich, nor glorious, nor secure, whose subjects are either poor, or contemptible, or too weak” (ibid.: II.xix(4), 120)—a circuitous way of prescribing, on the one hand, broadly construed state welfare functions and, on the other, differentiating between self-referential rule and rule for the benefit of subjects. While there is nothing here to warrant against absolutism in a total, arbitrary sense, neither is there a proclamation that the Leviathanic sovereign will exercise authority in such a manner. True, if Hobbes wished to eradicate or circumvent fractiousness in political life and rule by tempestuous passion—and he accomplished this by underscoring monarchical sovereignty to dispose of the possibility of divisions often found in assembly politics—then he needs to institutionalize restraints on the sovereign. In other words, even autocrats who rule for largely self-interested reasons must necessarily promote the interests of subjects if they are to remain in power, else their rule devolve into petty despotisms and the polity into factional strife and sedition. This requires that Hobbes distinguish just from unjust rule, or, in Bodin’s terms, honorable/legitimate from tyrannical/despotic monarchy. In one sense, he does. Despite having reduced sovereignty, the state, and the contract to stripped-down positivist, logical analysis made possible by force, and covenants without the sword to mere empty words (II.xvii(2), 106), Hobbes’ appeal to natural law sustains the commonwealth’s foundations: The law of nature and the civil law contain each other, and are of equal extent. For the laws of nature, which consist in equity, justice, gratitude, and other moral virtues on these depending, in the condition of mere nature . . . are not properly laws, but qualities that dispose men to peace and to obedience. When a commonwealth is once settled, then they are actually laws, and not before, as being then the commands of the commonwealth, and therefore also civil laws; for it is the sovereign power that obliges men to obey them . . . The law of nature therefore is a part of the civil law in all commonwealths of the world. (ibid.: II.xxvi(8), 174f., emphasis added) Further, he charges the Leviathan with pursuing and advancing the end for which [it] was trusted . . . namely, the procuration of the safety of the people, to which [sovereignty] is obliged by the law of

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nature . . . But by safety here is not meant a bare preservation, but also all other contentments of life, which [all individuals] by lawful industry, without danger or hurt to the commonwealth, shall acquire to [themselves]. (ibid.: II.xxx (1), 219, emphasis in original) To this end, the sovereign must promulgate good laws, or those laws “needful for the good of the people” that “direct and keep them in such a motion as not to hurt themselves by their own impetuous desires, rashness, or indiscretion” (ibid.: II.xxx (20–1), 229). This coheres with democratic sovereignty proposition No. 4, which we derived from Althusius: sovereignty concerns rule oriented toward “the regard and care for the genuine utility and advantage of subjects.” Good laws include trade and exchange relations between commonwealths since commonwealths cannot produce all the things “needful for the maintenance and motion of the whole body” (ibid.: II.xxiv(4), 160). Exchange relations are in turn regulated by the law of nations, which are none other than the law of nature (ibid.: II.xxx (30), 233) and yield the same rights for each sovereign as individuals in the state of nature (ibid.: II.xxx (29), 233). We conclude, presumably, that intersovereign relations replicate the brutish, nasty life of individuals in the state of nature. Yet this conclusion is doubly refutable. First, if individuals in the state of nature are naturally inclined to come to an agreement for their mutual preservation, why can’t commonwealths and sovereigns be so compelled (Bull 1995 [1977]; Williams 1996)? Nowhere does Hobbes forthright deny such a possibility; indeed, some might construe Hobbes’ remark at II.xxiv(4), 160, as generating an obligation on the part of sovereigns to obtain goods necessary “for the maintenance and motion of the whole body.” Second, natural law becomes civil law once a commonwealth is established. Therefore, being backed as it were by the threat or use of force and sanction, commonwealths may justly use such means against others who abrogate or contravene natural law, especially when sovereigns fail to procure the good of their people. Humanitarian interventions such as in Somalia are on this Hobbesian view permissible; sovereigns exist to preserve life and safety (broadly understood), not to dispose of them. So, contra Kant, perhaps even nominal dictatorships and absolute monarchies, or what Rawls might call “decent consultative hierarchies,” if governed for the good of the people, may not categorically be obstructive of international peace (1999: 71–8). This is a generous, highly sympathetic reading to be sure, but the possibility inheres since Hobbes grounds his commonwealth in appeals to equity, justice, and gratitude, which in turn are codified in the civil law. Consequently, Hobbes’ sovereignty appears potentially less brutish than some have thought, and as some contemporary realists, who structure their worlds according to pre-contract Hobbesian state of nature, contend. In this respect, Hobbesian, as well as Bodinian and Althusian forms of sovereignty are

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preferable than the sovereignty of contemporary international relations realists, structural realists, neoliberal institutionalists, and some social constructivists whose sovereignty emerges more from what states do—pursuit of power maximization in accordance with elite, not popular, interests (Keohane 1995; Krasner 1999; Schmidt 1998; Weber 1946, 1995)—than what states are—collectivities of people, communities of fate, governed in pursuit of the common good. Focus on that specious, myopic adaptation from Thucydides, “might makes right,” overlooks and inhibits a democratic international politics founded on an equal scheme of human rights available to each person, and robs both political life in general and sovereignty in particular of democratic advances. Even in the somewhat stark corridors of Hobbesian theory, Leviathan is bound to promote the good of the people. Progressive sovereignty: Hegel From a progressive point of view, that of world history as the unfolding of freedom, Hegel is in many ways the greatest theorist of sovereignty. Contra Weber (1946), Hegel’s sovereignty as articulated in Philosophy of Right emerges from a particular structure of state—a constitutional state—and not from a monopoly of violence (1952 [1821]: paras 275–8, pp. 179ff.). As a strike against illiberal regimes, Hegel claims it “contrary even to commonplace ideas to call patriarchal conditions a ‘constitution’ or a people under patriarchal government a ‘state’ or its independence ‘sovereignty.’ ” Rather, “the transition . . . to political conditions [or, to sovereign statehood] is the realization of the Idea in the form of that nation . . . So long as it lacks objective law and an explicitly established rational constitution, its autonomy is formal only and is not sovereignty” (ibid.: para. 349, p. 219). In this respect, “oriental despotism” and “feudal monarchy” (subsumed “under the vague name monarchy”) “are not to be confused with . . . legitimate structures” since they deny liberty (1971 [1830]: §544, p. 272). Likewise, what we might call “popular sovereignty,” understood as something in opposition to the sovereignty of the monarch, is one of those confused notions based on the wild idea of the “people.” Taken without its monarch and the articulation of the whole which is the indispensable and direct concomitant of monarchy, the people is a formless mass and no longer a state. It lacks every one of those determinate characteristics—sovereignty, government, judges, magistrates, class-divisions, etc.—which are to be found only in a whole which is inwardly organized. (1952 [1821]: para. 279, p. 182f.) His derision was directed against ethnic, virulent nationalism, not the people who in their collective association form the state. Apparently his critics miss this crucial distinction.22 Rather, as a unity of will, Hegel’s sovereign

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guarantees the conditions in which self-aware individuality may develop. As we’ve seen with Bodin and Hobbes, Hegel’s sovereignty is not absolute in an ordinary sense—that is, a precursor to fascism: “rationality requires a limited and not an absolute monarchy” (1952 [1821]: para. 279, n. 44, p. 369). While the monarch may rule “by divine right,” the rationality of divine will imposes restraints on its exercise. The fact that the sovereignty of the state is the ideality of all particular authorities within it gives rise to the easy and also very common misunderstanding that this ideality is only might and pure arbitrariness while “sovereignty” is a synonym for “despotism.” But despotism means any state of affairs where law has disappeared and where the particular will as such, whether of a monarch or a mob (ochlocracy), counts as law or rather takes the place of law; while it is precisely in legal, constitutional, government that sovereignty is to be found as the moment of ideality—the ideality of particular spheres and functions. That is to say, sovereignty brings it about that each of these spheres is not something independent, self-subsistent in its aims and modes of working, something immersed solely in itself, but that instead, even in these aims and modes of working, each is determined by and dependent on the aim of the whole (the aim which has been denominated in general terms by the rather vague expression “welfare of the state”). (ibid.: para. 278, p. 180, emphasis added) The distinction manifests the qualitative difference between regimes that emphasize a good of all—democracy and freedom defined with reference to a set of inalienable human rights—and those that rule in favor of particular interests, self-abolishing wills of all (plebiscitary majoritarianism), or a solipsistic singular will. Individuality and democracy can only emerge against a backdrop of free institutions. As the “actuality of concrete freedom,” the state consists of personal individuality and its particular interests [that] not only achieve their complete development and gain explicit recognition for their right . . . but, for one thing, they also pass over of their own accord into the interest of the universal, and, for another thing, they know and will the universal; they even recognize it as their own substantive mind; they take it as their end and aim and are active in its pursuit. The result is that the universal does not prevail or achieve completion except along with particular interests and through the cooperation of particular knowing and willing; and individuals likewise do not live as private persons for their own ends alone, but in the very act of willing these they will the universal in the light of the universal, and their activity is consciously aimed at none but the universal end. (ibid.: para. 260, p. 160f.)

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That the state is irreducible to the particularity of civil society, else the “interest of individuals . . . becomes the ultimate end of . . . association” (ibid.: para. 258, p. 156), highlights the degree to which the state and its sovereignty are “existent justice,” by which he means the actuality of liberty in the development of all [their] reasonable provisions. In this regard, Hegel critiques civil society for its particularity. Yet, despite “complaints [that] are made about the luxury of the business classes and their passion for extravagance—which have as their concomitant the creation of a rabble of paupers” through no fault of their own (see ibid.: para. 253; see also para. 244)—“we must not forget,” Hegel reminds, “that besides its other causes (e.g. increasing mechanization of labor) this phenomenon has an ethical ground, as was indicated above [para. 184]: “particularity has the right in this sphere to seek its own ends” (note to ibid.: para. 253 on p. 362; cf. para. 184, p. 123). Even so, we detect Hegel’s skepticism toward capitalism, which exacerbates problems inherent in civil society,23 for the creation of a rabble of paupers “brings with it, at the other end of the social scale, conditions which greatly facilitate the concentration of disproportionate wealth in a few hands” (ibid.: para. 244, p. 150). He feared England for this reason—specifically because “the most direct measure against poverty and especially against the loss of shame and selfrespect . . . has turned out to be to leave the poor to their fate and instruct them to beg in the streets” (ibid.: para. 245). “Their poverty,” he notes, leaves them more or less deprived of all the advantages of society, of the opportunity of acquiring skill or education of any kind, as well as of the administration of justice, the public health services, and often even of the consolations of religion, and so forth. (ibid.: para. 241)24 Criticizing England, he thus modeled the Philosophy of Right on the Prussian state, in which he recommended a judicious lordship of the state—welfare— to provide for the impoverished, though in the end he doubted the efficacy of state-run welfare programs. Let us call this democratic sovereignty proposition No. 6: sovereignty is found in legal, constitutional regimes, that is, regimes that actively defend and advance the liberty of citizens. This is the “minimal conditions for international recognition” thesis. In other words, we might say that international standards exist for a state to be considered in good standing in the international community. The way Hegel describes the condition of the poor leads directly to Marx. Under the influence of capitalism, civil society’s tendency toward the disproportionate concentration of wealth augment political insecurity for it produces an oligarchy out of democratic political institutions (recall Hobbes’ discussion in Behemoth). To illustrate, in “The English Reform Bill” Hegel notes:

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the election [to Parliament] to a large number of seats is in the hands of a small number of individuals . . . [A] still more significantly large number of seats is purchasable—some of them a recognized marketable commodity so that the possession of one of these seats is acquired by bribery or the formal payment of a specific sum to the electors or in general is reduced in numerous other ways to a matter of cash. It will be difficult to point anywhere to a similar symptom of a people’s political corruption . . . [I]t is the almost unanimous view of the pragmatic historians that if in any nation private interest and a dirty monetary advantage becomes the preponderant ingredient in the election of Ministers of State, then the situation is to be regarded as the forerunner of the inevitable loss of that nation’s political freedom, the ruin of its constitution and even of the state. (1964: 296f., emphasis added) Compare his criticisms of English democracy in Part Three of the Encyclopaedia of the Philosophical Sciences: Take the case of England which, because private persons have a predominant share in public affairs, has been regarded as having the freest of all constitutions. Experience shows that that country—as compared with the other civilized states of Europe—is the most backward in civil and criminal legislation, in the law and liberty of property, in arrangements for art and science, and that objective freedom or rational right is rather sacrificed to formal right and particular private interest . . . (1971 [1830]: §544, p. 273, emphasis in original) Presciently, these conditions—the purchase power by capital of political systems and procedures, the alienation of labor, the creation of potentially revolutionary lumpenproletariat—anticipate civil society’s brutal expansion in the form of colonization (see also Arendt 1979: Part II). “Despite an excess of wealth,” he writes, “civil society is not rich enough, i.e. its own resources are insufficient to check excessive poverty and the creation of a penurious rabble . . . This inner dialectic . . . thus drives it . . . to push beyond its own limits and seek markets, and so its necessary means of subsistence, in other lands” (1952 [1821]: paras 241–2). Against Kant and Montesquieu, who underscored the pacific, unifying effects of international trade and commercialism, Hegel strikingly revealed capitalism’s predatory, aggressive nature. “Just as the blowing of the winds preserves the sea from the foulness which would be the result of a prolonged calm, so also corruption in nations would be the product of prolonged, let alone ‘perpetual,’ peace” (ibid.: para. 324, p. 210). Miserably, expansion in the form of colonization, neo-imperialism, and the like undercuts the ethical advances of states (ibid.: para. 246, p. 151). Let us call this democratic sovereignty proposition

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No. 7: the hijacking of the government by private, special interests creates a divide between state and ordinary citizens which may give rise to (potentially transnational) populist movements to counter such restrictions on liberty and potential or actual oppression. We shall reformulate this as the “accessibility of government and public policy-making to all” thesis. To the detriment of his progressive project, however, Hegel conceives sovereignty in essentially top-down terms. Certainly, Hegelian sovereignty has to do with a common good, for instance, the realization of freedom. But his statism generally undercuts his progressivism. First, Hegel underscored military preparedness and ventures in international relations, which sometimes undermine ethical advances at home and across borders; the situation in Iraq unfortunately underscores this insight. Second, he invested political identity and will in the monarch, rather than with the people: without the monarch, the people would be a “formless mass” (ibid.: para. 279, n. 183). By tying the development of individuality to the state (ibid.: paras 190, 195, 251, 258, 260, 261, and 289), Hegel necessarily obstructed individuality’s transnational development. Consequently, statist lenses blinded him to the fact that even constitutional, democratic states sometimes pursue harmful policies with respect to the common good. Relatedly and contrary to the implications of his argument, Hegel denies the revolutionary potential of the “rabble of paupers” faced with “the concentration of disproportionate wealth in a few hands” (ibid.: paras 244–5, p. 150), which is a critical oversight. A common good cannot be circumscribed within elite governed institutions. On this view, “struggles for recognition in connection with something of specific intrinsic worth” (ibid.: para. 351) do not always occur in the context of clashes between regimes. Rather, these struggles may occur between peoples, states, and international institutions consistent with the recognition that today’s freedom becomes tomorrow’s repression. Moral insight develops over time; it does not come all at once. Third, Hegel failed to appreciate what Alan Gilbert (1999: ch. 5, table 1) calls the anti-democratic feedback of international politics. The perennial search for security (materially understood) dangerously remakes states in modes of anti-democratic power asymmetries characterized by the maximization of absolute and relative gains and the pursuit of the “national interest.” Scrutinized, “national interests” prove to be particular constellations of particular interests. Governments are pressed to compete, stigmatize, and “make enemies” of one another, which affects even the most (nominally) democratic of states such that, even amidst popular-based sovereignty conceptions, governments become absolute and unforgiving, poised above and against citizens. Sovereignty thus appears as a predatory grant, both at home and abroad—and thus spake the Thucydidean mantra, “the strong do what they can, the weak do what they must.” To be sure, sovereign statehood technically “depends on its content, i.e. on its constitution and general situation.” For Hegel, a despotic, ochlocratic

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state cannot be sovereign. Yet sovereignty is contingent on mutual recognition, which raises the possibility of an international oligarchy of despotic states, each underscoring the others’ sovereignty. He avers: it is no less essential that [the legitimate] authority [of a state] should receive its full and final legitimation through its recognition by other states, although this recognition requires to be safeguarded by the proviso that where a state is to be recognized by others, it shall likewise recognize them, i.e. respect their autonomy; and so it comes about that they cannot be indifferent to each others’ domestic affairs. (1952 [1821]: para. 331, p. 212, emphasis added) Importantly, emphasis on the legitimate authority of the state implies that regimes that do not defend individuality and freedom invite intervention in defense of universal right, or at the very least withdrawal of recognition. In a contemporary idiom, we might say standards exist for a state to be in good standing in the international community, which is Chayes and Chayes’ assertion in The New Sovereignty (1995). Of the four theorists discussed here, Hegel’s surely is the closest theoretical approximation of a democratic, human rights friendly sovereignty. Strikingly, Hegel argues that wars between advanced civilizations, i.e. regimes that extend freedom, right, individuality, and welfare, and barbarian ones are really “struggles for recognition in connection with something of specific intrinsic worth” (1952 [1821]: para. 351). Sovereignty cannot, by this interpretation, manifest itself as a shield against non-interference, but neither is it an invitation to uninhibited meddling. Far from being a Kantian cosmopolis of universal ends, a federation of states in perpetual peace, Hegel’s sketch of international relations is far more realistically progressive. Contrary to Krasner (1999: 7), then, recognition does impose obligations upon states; right and rights are not unilateral or unidirectional. Let us call this democratic sovereignty proposition No. 8: the divide between the domestic and the international is less distinct than imagined, for sovereignty is a social institution associated with particular rules of engagement and standards of behavior. We shall reformulate this as the “sociality of sovereignty” thesis; that is, sovereignty is associated with adherence to international, intersubjective norms.

Summary Value-neutral reifications of sovereignty construed as the slightly attenuated absolutism of particular wills fails in a significant sense to account for the idea of state and its chief end: the good of citizens. More pointedly, theorists such as Bodin and Hobbes fail to deliver the sort of absolutist, capricious, quasi-tyrannical account of sovereignty as some have suggested. This chapter has attempted to cut into contemporary debate about the

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incompatibility of sovereignty and human rights by exposing what might be construed as democratic precursors in conceptions of sovereignty in some of its earliest theoretical accounts. Further, this chapter sought to illuminate democratic and humanistic elements in early theories of sovereignty in an effort to clarify what we mean by sovereignty—its principles and practices. Table 1.1 summarizes. Each thesis substantially modifies conceptions of sovereignty in ways that reveal sovereignty to be more democratic than customarily thought. A democratic sovereignty rearticulates “supreme authority” as a process oriented toward the common good in terms dissociated from restrictive analyses that either depict sovereignty as a monopolistic condition, or that bypass sovereignty (Cronin 1999: 4; Reus-Smit 1999: 159), or that emphasize its corrosion, erosion, disintegration, perforation, or division (see Garner 1925; Loewenstein 1954; Maine 1915 [1887]; and Schmidt 1998).25 In their stead, democratic sovereignty embraces, extends, and defends a conception of basic liberties and rights available to each individual, which essentially undercuts a central feature of contemporary democratic theory, namely, the notion that majorities may decide the content of a common good. Rethinking sovereignty in such terms does underscore the notion that sovereignty emanates from and serves political communities in which it resides. A democratic sovereignty, further, subverts spatial divisions in favor of the development of both domestic and transnational communities in conjunction with common good oriented activities. Transnational movements that promote human values—what I shall call in the next chapter democratic goods—and advocate for the codification of these values in international legal dictum demonstrate this spatial subversion. Democratic sovereignty, in short, radically qualifies the hierarchy of political space by redefining authority in the more human rights friendly language and logic of a common good. One could plausibly read democratic sovereignty as extricating the idea of supreme authority from the confines of the bounded state; to be sure, the internationalist and sociality theses stress this sort of reasoning, which is notably iterated in the reframing of the humanitarian intervention debate in The Responsibility to Protect (2001) and in the UN human security agenda. If the content of authority is framed in terms of common good projects such as human rights, environmental protection, and the global extension of the rule of law, then authority is in some measure detached from the state. In other words, sovereignty entails not unrestrained prerogative but obligations to people and the values they hold. The emphasis is not, to reiterate, on sovereignty’s agents but on its content. Certainly, democratic sovereignty underscores the intrinsic good of self-government, which, dialectically, may be interpreted by those more skeptical of global governance schemes as imbuing states with renewed significance. After all, states have important roles to play in creating just socio-political orders. And yet the salient good of self-government inherent in democratic

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Table 1.1 Foundational theses Democratic sovereignty theses Proposition 1

• Sovereignty, being about justice and a common good, vigorously defends the individuality of all citizens Individuality and human rights thesis

Proposition 2

• Intervention in defense of the common good in cases of egregious abuses abroad may be warranted Internationalist thesis

Proposition 3

• Sovereignty emerges from peoples in their collective association for their mutual benefit Populist basis of sovereignty thesis

Proposition 4

• Governments, as agents of sovereign polities, exercise conditional grants of authority, and are bound by the regard and care for the genuine utility and advantage of subjects Sovereignty for a common good thesis

Proposition 5

• Preservation of life is an incontrovertible, general public good Incontrovertibility of life thesis

Proposition 6

• Sovereignty is found in legal, constitutional regimes, or regimes that advance and defend the liberty of citizens Minimal conditions for international recognition thesis

Proposition 7

• Polities must be vigilant against the hijacking of the government and state by private, special interests, the possibility of which restricts democracy Accessibility of government and public policy-making to all thesis

Proposition 8

• The domestic-international divide is an artificial one • Sovereignty is a social institution with particular rules of engagement and standards of behavior Sociality of sovereignty thesis

sovereignty also empowers various dissent movements, local communities, regions, and, potentially, transnational and supranational actors—all of which may in their own ways serve common good projects. Thus, a democratic sovereignty improves upon state and popular versions of sovereignty. First, it divorces the idea of supreme authority from rigid hierarchies of authority and power within states. Second, it disentangles such authority from the stranglehold of popular sovereignty that either de-links the rights and liberties of individuals from common good measures by tying public policy to majority decision, or is undermined itself by a monopolizing state sovereignty. However one interprets the conception,

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acts of democratic sovereignty—ones that advance and defend rights, extend the rule of law, protect the environment, and the like—greatly enhance the legitimacy of the state by tying it back to the central concerns of citizens. In the end, democratic sovereignty embodies Judith Shklar’s poignant observation that only a distrustful, conversant population, aware of the myriad of rights of the human person, “can be relied on to watch out for its rights, to ward off fear, and to be able to make their own projects, whether they be modest or great” (1984: 238).

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Democratic and state sovereignty Two competing conceptions

Introduction This chapter shifts our attention to International Relations and the construction of a democratic sovereignty. If early political theorists defined sovereignty in relation to the political community sovereign authorities represent and serve, then several of sovereignty’s IR theorists conceive (or produce) a rift between community and state elites. Indeed, some dominant strands of IR sovereignty theory appear to be a variation on an Austinian theme: law is the command of the sovereign backed by force, which theoretically and practically translates into a substantial degree of prerogative. For instance, Kenneth Waltz’s (1979: 96) sovereignty is the right of a state “to decide for itself how it will cope with its internal and external problems.”1 Similarly, Stephen Krasner’s sovereignty reflects the cold calculations “of material and ideational interests” of rulers who “hope to retain power and satisfy constituents,” and “not taken-for-granted practices derived from some overarching institutional structures or deeply embedded generative grammars” (1999: 9, 66). Robert Keohane attempts to extricate sovereignty from “the realist trap” by defining it as “an institution—a set of persistent and connected rules prescribing behavioral roles, constraining activity, and shaping expectations” (1995: 167). Yet he embeds sovereignty deeper into realism by tying it to “the rational interests of elites that run powerful states.” Anthony Clark Arend, a legal social constructivist, defines sovereignty as “the notion that states are independent, that they can be bound to no higher law without their consent, that they are juridically equal” (1999: 138). In contrast to Bodin, Althusius, Hobbes, and Hegel, none articulate a conception of the state or of sovereignty as having anything manifestly to do with people or their welfare (the populist basis of sovereignty and common good theses, Table 1.1). The 1990s saw the emergence of an alternative conception of sovereignty, one tied to what I call “the globalization debate,” by which I mean that narrowly framed methodological query of whether the dispersion of functional responsibilities to non-state actors and certain material and ideational migrations (of information, finances, capital, people, diseases, pollution,

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technology, and human rights) challenges the ontological certitude of sovereignty (see, for example, Bartelson 1995; Elkins 1995; Fowler and Bunck 1995; Guehenno 1995; Hainsworth 1995; Lapidoth 1992; Rosenau 1997; Strange 1994). Arguing that sovereignty collapses under the weight of globalizing processes and functional dispersion, these scholars not only resurrect a debate that began in the late nineteenth century and has periodically resurfaced given changing global realities (see Maine 1915 [1887]; Garner 1925; Loewenstein 1954; and Schmidt 1998), but, further, imply the very thing they critique: sovereignty as an irreducible, indivisible, essentialized chunk (Fowler and Bunck 1995). In other words, sovereignty is nothing less than “supreme authority in political community” (Hinsley 1986: 1). Either authority is complete, or, if parceled out or dispersed among, or curtailed by, exogenous agents or forces, it is compromised. Despite its shortcomings, the globalization debate engendered a renaissance in sovereignty studies and with it a new strand of theory that distanced sovereignty from self-referential reifications of state autonomy, strategic calculation, and elite-driven behavior by focusing on legitimacy and compliance with international norms (Barkin 1998; Biersteker and Weber 1996; Chayes and Chayes 1995; Fox 1997; Hurd 1999; Onuf 1991, 1998; Philpott 2001; Reus-Smit 1999). These authors rearticulated sovereignty in terms of a normative framework involving some degree of endogenous (domestic) and exogenous (international) socialization. Socialization affects state identity and behavior by providing a context within which states negotiate the contours of what it means to be sovereign. No doubt, socialization produces forms of learning—an inherently social activity whose lessons are borne out through experience and reflection. Learning is never unilinear; progress may be punctuated by regression. States do not exist in social vacuums, but in contexts animated by competing interests and values, cooperation and dialogue, exchange and interpretation. Sometimes these dialogic and interpretive networks yield convergences of interests and values (especially in times of and after crises); such convergences provide fertile new ground upon which to construct socio-political orders and explore new ideas about their content. Sometimes such convergences generate new and transform existing normative structures. Normative structures, in turn, constrain sovereignty practices and alter sovereignty’s meaning through a myriad of social and legal norms—both soft (general and relatively imprecise behavioral prescriptions and proscriptions) and hard (relatively precise directives)— which are both generated given new material and ideational conditions, and continually revised through negotiation, application, interpretation, and reflection. Sovereignty is, thus, a contingent practice, process, and thing constituted and regulated in part by intersubjective norms and rules to which states must adhere if they are to be perceived as members of the international community in good standing (Chayes and Chayes 1995). By adopting this line of reasoning, as I do here, scholars can better appreciate certain normative advances in international relations including, for

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example, the extension of religious liberty to each individual; international abolition of slave trading and slavery; the 1997 Ottawa Convention (Landmines Treaty); proliferation of human rights norms and law; holding individuals accountable for the most serious international crimes; numerous environmental initiatives, and the like. Each owes in significant measure to the work of non-state agents, which suggests: (1) that sovereignty is modified by multiple actors; which, in turn, (2) beclouds the singular agent orientation of most sovereignty definitions; (3) indicates that we must be more critical in our conception of authority (if indeed sovereignty is a significant statement about authority) and for what purposes such authority is instituted and exercised; and, most importantly, (4) that the “thing” (sovereignty) that constitutes the state likewise modifies it and its behavior, forcing us to retreat from the position that sovereignty is a “hard,” invariable fact of international political and social life. This chapter assesses IR conceptions of sovereignty in four central “knowledges”: logic, space, time, and ethics. Particularly, I seek to highlight how certain, narrow articulations of such knowledges have shaped sovereignty theory and practice. Cognizant of significant legal and normative developments in international relations (the subject of Chapters 4 and 5), and in opposition to conventional articulations of such knowledges, I construct democratic sovereignty’s foundations.

Two competing conceptions Logic F.N. Hinsley (1986: 15) describes sovereignty’s early history as the unnatural imposition of state—or “the instrument of a power that is alien to those natural ways”2—on society. If sovereignty initially inhered in the monarch, it eventually transcended human mortality by relocating to the institutional structure of state, which was by definition differentiated from the people who comprise political community. Even if the state is conceived as a communion of citizens and their associations existing for a common good, and sovereignty is invested in the aggregate political association, the government as representative of that communion monopolizes and directs this “popular sovereignty.” But even where popular sovereignty might be given some practical role in constructing community affairs and public policy, it harbors particular dangers, for being the “final and absolute authority in the political community” (ibid.: 1), sovereignty as a thing resides at the apex of political community (Bodin, Hobbes); as process, it envelops political community (Althusius, Hegel). First, popular sovereignty imposes a homogenized thing—the unitary nation—upon the diversity of human experience and identity by wedding supreme authority to the nation. This silences minority “nations” (say, Basques, Chechens, Palestinians, indigenous peoples) within the state.

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Table 2.1 Sovereignty: two competing conceptions Sovereignty*

Democratic sovereignty

Logics Thesis of transcendence: Sovereignty—whether of the prince, nation, people, or state—transcends political community, standing over and above the community in hierarchical and imposing ways • two conclusions follow: the completeness and the exclusivity of the state

Thesis of immanence: Democratic sovereignty is immanent in the idea of political community and emanates from the common good and welfare of individuals, namely, a scheme of equal basic liberties and goods available to each

Space Insularity of sovereignty: Sovereignty divides domestic and international political space, giving rise to a dyadic conceptualization in which supposedly ordered, bounded states within which power and authority are hierarchically arranged exist in a condition of external anarchy

Time Static/ossification thesis: Sovereignty denotes a condition of being, not a possibility of change • reification of sovereignty and the state, which are assumed away as independent variables • change is limited to empirical variations in state interest and material capability Ethics Thesis of value-neutrality and instrumentality: Sovereignty bounds political space and largely insulates ethics from international debate • internally, sovereignty introduces a division between the “national interest” and the common good • externally, sovereignty introduces a corollary notion of anarchy, which permits competition between specific material interests to the detriment of a common good

Openness of sovereignty: Stresses the congruence of common good activities across borders; recognizes that sovereignty’s content is determined not necessarily by individual states but by the broader communities within which states are situated • influenced by transnational democratic movements Dynamic/regulatory thesis: Conceptions, logics, and practices of sovereignty and state have changed since fifteenth-century Europe • change is embodied in international legal instruments

Thesis of ethical content: Sovereignty is predicated on a core of first order democratic goods including life, enlightenment, skill, affection, and dignity, as well as their derivatives (manifested in UN activities such as the human security agenda, the “responsibility to protect,” and international criminal tribunal judgments • these goods orient common good and sovereignty practices domestically and internationally

* Alternatively labeled absolutist, juridical-institutional, monarchical, state, and popular sovereignty.

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Second, popular sovereignty potentially undermines individual rights and liberties by tying public policy to majority decision. Thus, governments may, under the guise of popular majority vote, deprive minorities of essential political rights and civil liberties. Third, binding sovereignty territorially and nationally divides peoples and their transnational concerns. Thus, a transnational populist concern with protecting the environment conceivably confronts (and is defeated by) state interests in sustaining economic growth despite environmental degradation. Cognizant of the realities of a globalizing world and the constraints imposed by state and popular sovereignty, Hardt and Negri (2000: xii) advocate abandoning conventional discourse, postulating in their stead a “capitalist sovereignty” that completes the global logic of “empire,” meaning the aggregate of “political controls, state functions, and regulatory mechanisms” that “rule the realm of economic and social production and exchange.” Whether we argue in terms of conventional bounded logics of state and popular sovereignties, or the global logic of empire and the sovereignty of capital, sovereignty is defined in terms of imposition (Rosenberg 1994). From these ideas follow two claims—completion and exclusivity—that together comprise what I call sovereignty’s thesis of transcendence. First, by defining sovereignty as final and absolute authority in political community, we locate it within bounded communities; consequently, our conceptualization divides political space into presumably ordered domestic spaces (states) that exist in a disordered, anarchic world. I call this the conclusion of exclusivity, which I consider in the next subsection. Existence of multiple, presumably like, political spaces or units (as rendered by Waltzian reductionism) presupposes the existence of community on the inside and the absence of community in any thick, meaningful sense on the outside. Consequently, this bifurcation of our political universe allocates particular actors to particular spaces. Inside spaces correspond on the outside to states with near monopolies on agency. Communities on the outside develop only with the consent and regulation of the state. Bruce Cronin (1999), however, has attempted to chart the existence of “transnational communities” based in some measure on thick, substantive ethical claims. But, as I discuss later in this chapter, Cronin’s communities are actually devoid of such claims. Rather, he pins his communities on relative, contextual goods or the confluence of particular national interests, not, as he argues, on a common good. Here I consider the second claim: the state as a complete, finished product both internally and externally. On this view, the state’s “domestic relations with society as conceptual variables in international politics” are eliminated from theoretical and practical consideration, or at the very least treated as unproblematic (Hobson 1998: 295). On this reading, people have no further interests than the interests of the state, dubiously labeled the “national interest,” which brackets out the possibility of thick transnational communities. For such communities to develop, we need to witness a withering and

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disappearance of the state. Thus, our political futures appear as either a state-dominated international society; or a largely undefined, stateless world society populated either by peace-loving cosmopolitans or racist-minded Nazis who conceive of the world as a racial hierarchy; or any condition in between in which states presumably wither.3 The choice between a state-centric international society and a stateless world society is telling, for it entails the impossibility of attaching sovereignty to any political form other than the state. In other words, sovereignty’s existence must have appeared as a contingency, a localizing potential asserting itself against totalizing actuality (i.e. secular kings asserting dominance over specific territory in opposition to papal, universal pretensions to power, as we saw in Chapter 1). Hinsley (1986: 16) captures this quite well: the sovereign state evolved from the “struggle between the principle of community and the principle of dominance,” a struggle in which the latter principle prevails. But two conditions must be met before we can speak of sovereignty. Objectively, the state must achieve complete subjugation of all sectors of society such that the issue of “whether disaffected elements or segments will hive off and establish a separate community” never arises (ibid.: 17). The subjective condition recognizes that, while the state “may be a necessary condition” of sovereignty, it is not a sufficient condition of it. What seems to have been further required before men have advanced this explanation of the basis of rule is that they have ceased . . . to regard the state as alien to the society and to have begun [sic] to identify the claims of the state with the needs of the community. (ibid.: 18) Foucault might call this subjective condition governmentality, or “the general economy of discipline that runs throughout society” made possible by the myriad of ways individuals internalize various external modes of surveillance, regulation, and discipline—all to the effect of strengthening (and accepting) transcendent state sovereignty (Hardt and Negri 2000: 88). The point is that all alternative conceptions of political community beyond the state, all forms of thick societies outside the state, and all interests not coincident with the state have been extinguished or neutralized. Historically, early-modern sovereigns embarked on extensive projects to realize the objective and, gradually, the subjective conditions of sovereignty. In order to consolidate personal rule, monarchs centralized systems of administration, taxation, surveillance, control, and coercion, which dismantled the feudal practice of multiple, differentiated legal systems managed by regional parlements. But far from creating conditions of internal order and legal regularity, monarchical absolutism remade social relations into internalized modes of state-sponsored anarchy, in which the dispensation of “justice” mimicked the corruptible, irreverent, and tempestuous passions of the king.4

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As these systems were extended and applied across vast regions, bureaucracy—required for the administration of immense networks of relations— burgeoned, and as a result sovereignty vacated the bounded mortality of princes and relocated to the unbounded immortality of state. Thus, regardless of whether sovereignty is understood in the personal terms of patrimony, patriarchy, and monarchy, or in the administrative-juridical terms of bureaucracy, constitutionalism, and proceduralism, sovereignty becomes an isolated focal point, the apex of internal systems of rule. Incidentally, the sovereign nation-state appears as a transcendent, metaphysical “idea that somewhere there is a right to which all other rights must yield” (de Jouvenal 1962: 27). Marx (1978: 18) called this sovereignty’s objectification, meaning that sovereignty is “treated to begin with as an independent entity.” Contemporarily, others treat sovereignty as an analytic assumption, an organizing principle (James 1986: 278f.; Walker 1990: 159f.), or a generative grammar, by which Ruggie (1998: 63) means “the underlying principles of order and meaning that shape the manner of [a thing’s] formation and transformation.” Externally, sovereignty denotes that condition of bounded exclusivity and completeness. Internally, sovereignty—or, more appropriately, the sovereign state—dominates the social. One rather successful mode of imposition involved the political manipulation of nationalism, by which the state engineered society’s response to its commanding presence. Nationalism allowed the state to control or “take back” popular sovereignty granted to peoples. Elevation of a particular sort of (exclusive) unity reconfigures a potentially positive force into a potentially negative one, such that “any interference in the affairs of the state [can be treated as] an affront to people as well as rulers,” a point that both underscores violent reaction to presumed threats, and assumes an unmitigated unity from which no derogation is permitted (Shaw 2000: 32; see also Parekh 2002). In this vein, Hardt and Negri contend that the modern concept of nation inherited the patrimonial body of the monarchic state and reinvented it in a new form. This new totality of power was structured in part by new capitalist productive processes on the one hand and old networks of absolutist administration on the other. This uneasy structural relationship was stabilized by the national identity: a cultural, integrating identity, founded on a biological community of blood relations, a spatial continuity of territory, and linguistic commonality . . . These concepts [of patrimonial and national state] reify sovereignty in the most rigid way; they make the relation of sovereignty into a thing (often by naturalizing it) and thus weed out every residue of social antagonism. (2000: 95, emphasis in original) If nationalism stabilizes the relationship between dominance (sovereignty) and community, then it imbues with remarkable cleverness a power of

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agency to the state (the sovereign agent) in its activities at home and abroad in the representation of this singular national will. By creating the conditions in which people “identify the claims of state with the needs of community,” the government communicates an esprit de corps as Rousseau has it, a national essence or a peculiar identity claim by which it constitutes “its own moral self; its sensibility, common to all of its members; its own internal sources of strength; [and] its own will concerned with its own preservation” (1954: 90). Other nations become potential adversaries, and the struggle for dominance is exported (Gilbert 1999). Transcendence manifests as a sacred and inviolable will (to power), an inexhaustibly repressive instrument and apparatus of surveillance whose midwife is nationality. Max Weber, Hendrik Spruyt, and Gianfranco Poggi give historic-theoretical voice to this transcendent logic. Whether by sheer monopolization of the instruments of violence (Weber 1946); an “overwhelming institutional logic” that gave the sovereign state a competitive advantage—monetarily and militarily—over city-states and city-leagues (Spruyt 1994: 185); or the development of a system of “mutually independent states, each defining itself as sovereign and engaged with the others in an inherently open-ended, competitive, and risk-laden power struggle” (Poggi 1978: 60), the sovereign state subdued its enemies, co-opted its sympathizers, and attacked its competitors. Weber formulates the transcendent logic most extremely by appropriating power’s shadow in the false sense that it is sovereignty and the state’s substance. Poignantly, the formulation subtracts even from Hobbes’ leviathanic construction which at the very least tied sovereignty and the state to securing “all those contentments” of life as well as its very preservation (incontrovertibility of life thesis). Yet these three authors raise a pertinent point about violence and the historical emergence of the sovereign state. As the argument about Hobbes illustrates, tying sovereignty and state to violence reduces the value of political association to matters of mere control, and raises the unfortunate parallel between despotic and dictatorial abuses of authority and the institutionalized structure of the sovereign state (see also Arendt 1968: 163ff.). On the one hand, exogenous pressures “placed a considerable premium on a state’s ability to tighten its internal political ordering, to structure rule so as to make it more unitary, continuous, calculable, and effective” (Poggi 1978: 60f.). Given the totalizing claims of various feudal lords, the Holy Roman Emperor, and the pope, one can understand the need to assert one’s particular identity in forceful ways. Owing further to what contemporary realists would call balancing and the pursuit of relative gains, the state, in order to “hold or improve its position vis-à-vis others,” found it necessary to “monopolize rule over its territory, exercising that rule with the least possible mediation and intervention of other centers outside its control” (ibid.: 62). On the other hand, the personal desire for wealth, power, and prestige led to an expansive, “ruthlessly dynamic,” royal policy of consolidating administrative functions and subjecting all challengers to the will of the ruler (sovereignty’s

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objective condition). Thus a Cardinal Richelieu, Louis XIII’s chief minister, could characterize domestic royal policy as “reduc[ing] and restrict[ing] those bodies which, because of pretensions to sovereignty, always oppose the good of the realm. Ensure that your majesty is absolutely obeyed by great and small” (quoted in ibid.). The point has unfortunate parallels in contemporary world politics: institutionalized, state-sponsored repression of anti-globalization (anti-poverty, pro-environment) protestors in Seattle, Prague, Quebec, Genoa, and Washington; state-imposed regimes of apartheid (South Africa), racism (Jim Crow laws; Mugabe’s Zimbabwe), and genocide (Germany against both the Herero people in Southwest Africa and the European Jews; Cambodia; Rwanda; Bosnia); a myriad of policies that harm the environment, deny or restrict aid to the poor, or fail to act in accordance with accepted international standards (take American rejection of the ICC, for example, or the vexatious refusal by the international community to act in Darfur, Sudan); or ignoring mass starvation and malnutrition. Mass murder apparently only shocks when conducted promptly (and efficiently) by state soldiers (or, as with Al Qaeda, ideologues), rarely when it is the result of public policy and social ideology. How slow, painful death from malnutrition, diarrhea, and preventable diseases in an age of prosperity is qualitatively less evil than meticulously engineered genocides is unclear. Both involve deliberate disregard—the former in how human beings actually live, the latter in how they die. Transcendent state sovereignty appears, quite often, over and against the common good. The logic, if I am correct, is a powerful one; rethinking sovereignty in democratic terms appears an almost vain endeavor. Yet Hinsley provides a crevice through which to escape by defining sovereignty in terms of legitimacy in contradistinction to sheer violence. Our constructions of sovereignty, it seems, are more subjective matters of emphasis than of objective, immutable realities. Hinsley (1986: 16) remarks there is a qualitative distinction between “the rule of kings” and “the power of other tribal leaders.” A king, he maintains, “either had the might or he did not rule. His kingliness might be accepted as inborn and natural, but it was justified by the fact that he was stronger, richer, and more splendid than anyone he ruled.” In this regard, contra Hinsley, kings and tribal leaders appear remarkably similar. But coercion can really only compel the body; the mind must be co-opted in other ways. Legitimate authority, from which sovereignty derives, evolves from “some pattern of accountability which the ruler observes.” This distinguishes rule from “mere political power” (ibid.: 25). In other words, sovereignty cannot simply emerge from the state’s successful domination of community. Sovereignty must do something more: it must at least appear legitimate by being legitimate, which is accomplished by preserving and protecting some good, some end, measured in terms beneficial to both community and state.

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Hinsley does link sovereignty’s conceptual and practical development to “changes in the relations between the society and its government” (ibid.: 22). Yet to what extent would these relations have to change to deflate or oppose sovereignty’s transcendence? Hinsley, having argued sovereignty is tied to the integration of society and state (ibid.: 21), intimates that future changes would issue only from the disentanglement of society from state. But if sovereignty necessarily emerges from the struggle between society and state (or community and dominance), and is tied to their reconciliation as well as to a conception of legitimacy, then it is not implausible to imagine and cultivate alternative forms of sovereignty that are not at their core statist or even primarily coercive. Let us reconsider Hinsley’s argument. He claims that while the state can exist without generating a conception of sovereignty (think of Palestine and Taiwan), and political community can exist without being cloaked in the armor of state (think of Quebec or the Basque region), sovereignty cannot exist without the state (ibid.: 17). Thus, if relations between society and government decoupled, sovereignty presumably would disappear. Yet Hinsley (ibid.: 15) asserts that sovereignty is not irreversibly tied to the struggle between community and dominance. In other words, sovereignty might have emerged on less coercive grounds than he proposes. If sovereignty is linked more generally to the ways society and state integrate and interact, then the state (as a transcendent, imposing force) cannot logically be sovereignty’s sole form. Neither should sovereignty be so intimately tied to dominating structures of power which appear as one potential outcome of the integration and interaction of state and society. Perhaps Hinsley establishes a false opposition between state and community in the first place. Perhaps, furthermore, a state represents a particular, institutionalized form of political community—which is not the same thing as saying it is the only form of political community eligible for sovereign status. Hinsley admits as much when he links sovereignty to past, non-statist systems of rule resting “on some form of legitimation of the ruler and some pattern of accountability which the ruler observes” (ibid.: 25). For sovereignty’s early-modern theorists and for Hinsley, then, legitimacy constitutes sovereignty’s theoretical backbone and provides the basis for an alternative logic to the one sketched above. The idea has gained considerable purchase power in recent years (see Barkin 1998; Chayes and Chayes 1995; Fox 1997; Philpott 2001). For example, Barkin and Fox argue that sovereignty evolves through a series of episodes or permutations,5 the net effect of which is to strengthen a particular form of state—the liberaldemocratic state. If Barkin (1998: 230), like Hegel, believes sovereignty to “require a certain constitutional structure” of state, which in turns shapes internal sovereignty practices, then Fox links changes in such practices to observation of human rights norms. He contends that states that adhere to these norms,

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will be stronger and less in need of attention by the international community . . . because participation in the state’s political life will be significantly broadened, thus creating among citizens a commitment to maintaining the institutions of government that make such participation possible. (Fox 1997: 126)6 But by neglecting the idea that peoples’ interests often coalesce beyond borders and circumscribed national interests, Barkin in particular does not explain the abolition of slavery—a critical ethical development in sovereignty’s constitution and in the evolution of world politics. Several of our case studies overlap, including the issue of religion between Augsburg and Westphalia, the monarchical principle of the Concert of Europe system, and human rights. Succinctly, though, our projects are differentiated both qualitatively and empirically; if Barkin and Fox emphasize legitimacy from above, then democratic sovereignty considers legitimacy from below. By legitimacy we mean “the basic requirement that rule must be justified in principle because it rests not just on force but on acquiescence” (Bukovansky 2002: 70). Justification fuels the “normative belief by an actor that a rule or institution ought to be obeyed” (Hurd 1999: 381). In another idiom, legitimacy concerns “the ways by which political power may be called to account” (Hinsley 1986: 25). How, then, are political power and authority justified? Certainly, some appeal to interest is necessary, but it cannot be the interests of rulers that are always or even primarily upheld. Even if, as Kranser (1999: 50) remarks, rulers are “calculators” who want to stay in power and consequently orient their activities so that they will remain in power (even invoking and adhering to international norms they find objectionable if they appeal to constituents), rule is contingent on appealing to the interests of citizens. State authorities must justify their rule and policies in terms of the common interest, lest their rule appear as petty despotism; citizens and society must reap tangible benefits from rule. In other words, if sovereignty is a significant statement about the supreme nature of authority in political community—a statement that is usually taken to indicate sovereignty’s location in community—then democratic sovereignty asks toward what ends such authority is directed. The ends relate to the sustainable good of political community. As we saw in Chapter 1, this immanent reading or logic derives from its early theorists. Whether construed as the pursuit of both “the intellective and contemplative virtues” and “harmonic justice” (Bodin), “good order and the supplying of provisions throughout the territory of the realm” (Althusius), “the conservation of peace and justice” (Hobbes), or the advancement of freedom generally and the development of individuality specifically (Hegel), the common good appears in each accounting as the chief end of sovereignty practices. These autochthonous constructions are significant because they ensure that political activity has direct relevance to

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and responsibility for people by permitting each association to give direct and immediate effect to its own ends. Democratic sovereignty builds upon their insights—that sovereignty is constituted for realizing the good of citizens—and ties this purpose to a conception of legitimacy by which sovereignty practices are called to account, both domestically and internationally. But rather than bracket out transnational associations and social agents, thereby denying causal linkages between social agents and international (and domestic) change, or construe that transnational relationships and processes undermine, erode, or disaggregate the state and sovereignty, democratic sovereignty weaves the work of multiple non-state agents into a theory of sovereignty. There need be no pressing choice between an international society of states and a stateless, cosmopolitan world, especially considering sovereignty’s persistence. In this vein, the perception that sovereignty erodes in the face of globalizing processes is more the result of our inability to conceptualize sovereignty as anything more than autonomy and prerogative, than of the very real processes that animate our globalizing world (Slaughter 2004: 267). As a political concept, sovereignty is tied to political community’s expression of the content of a just political order. As a legal concept, sovereignty enshrines those ideas in a normative, public legal order. Problems with sovereignty theory—the reification of autonomy, prerogative, elites, and strategic calculation—emanate from the desire to locate sovereignty in a particular agent. While this may have been feasible during the period of monarchical absolutism, changes in governmental structure, constitutionalism, and the rule of law problematize the project. As Rousseau noted, sovereignty cannot be represented. . . . Its essence is the general will, and for a will to be represented is out of the question: either we are dealing with it, or with something other than it. . . . We are indebted for [the notion of representatives] to the iniquitous and absurd system of government that held sway during the age of feudalism—a system under which humanism is degraded and the title [human] held in dishonor. (1954: 149) Because of the problem of representation, democratic sovereignty changes the terms of discourse, from final and absolute authority in political community to supreme authority of the ends of political community, which, collectively construed, are understood first and foremost to preserve, protect, and advance the welfare of community and its constituents. The prepositional change is not a mere minor grammatical notation. First, it refocuses our attention away from sovereignty’s location within a particular community and toward the state as political community itself. Assuming that no state or political community wishes to self-annihilate, democratic sovereignty asks for what ends political communities exist. I define these ends with reference

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to a common good and the articulation of values that cannot be restricted to particular communities, which I discuss in the ethics subsection. Second, it encourages us to speak of and look to acts that sustain and advance a common good—what I call in Chapter 3 regulative principles of legitimacy. These principles, which embody intersubjective ideas of the content of just political order, take the form of rules. They can, therefore, be depicted in terms of the progressive development and codification of international law. Space That sovereignty binds and divides political space appears to us in some rather felicitous ways. If Martin Wight’s (1966: 21) sovereignty “represents the untidy fringe of domestic politics” that consummates “political experience and activity,” then R.B.J. Walker’s (1993) divides a centered inside from a decentered outside in which the particularity of the state contraposes the universality of the international. Bartleson’s parergon (1995: 51) is Agamben’s paradox (1998 [1995]: 15), and Marx’s objectification (1978: 18) reappears as Halliday’s (1999: 11) cuius regio, eius spoliatio (whoever’s region it is has the right to exploit it). Ironically, these latter two formulations raise the curious specter that non cuius regio, non eius spoliatio: international anarchy, a veritable terra nullius, appears as a realm of peace compared with the bounded sovereign state! These depictions underscore rather than blunt sovereignty’s proximity to power. Within sovereign boundaries, political communities may realize “aspirations to the good, the true and the beautiful” (Walker 1993: 62); outside, such a life is nonexistent at worst, fleeting at best. Sovereignty completes the logic of political community, and directs aspirations to the “good, true, and beautiful” (Hinsley 1986: 15) by aligning it with raison d’etat which, in some cases, articulates and justifies “each state’s commitment to aggrandizement” both inside and outside, and undercuts dissent and democratic discussion in favor of an artificial or imagined unity or community (Poggi 1978: 90; see also Arendt 1979). In this regard, rhetoric against strikes, labor movements, immigrants, foreigner workers, political dissidents, and opponents recasts actors in radical modes, such that their stigmatization might encourage their targeting in violent ways. Jean Bethke Elshtain correctly ascertains that “during the French Revolution, popular sovereignty constituted internal enemies on par with external foes” such that “the rule of force ordinarily reserved to foreigners now pertains among citizens” (1998: 15). Canada, the United States, Italy, and the Czech Republic in recent years have employed violent measures against antiglobalization protestors during meetings of international officials. Open ethical and political discourse—presumed hallmarks of democracy—become tools of manipulation by governments which, as Foucault describes it (1991: 95), “is defined as a right manner of disposing things so as to lead not to the form of the common good . . . but to an end which is convenient for

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each of the things that are to be governed.” By default, “what characterizes the end of sovereignty . . . is in sum nothing other than submission to sovereignty . . . [meaning that] the good is obedience to the law” (ibid.).7 In the absence of Socratic inquisitors, political community is arrested by Polemarchian authorities. Outside the state, some IR theorists depict political space in terms of repetition, plurality, discord, and anarchy, meaning that condition in which no superincumbent authority exists to mediate disputes, moderate conflict, mitigate the effects of competing interests, or encourage and direct cooperative ventures. The initial imperative of self-preservation gives way to an imperative of self-aggrandizement and expansion.8 Viewing sovereignty in this way endlessly replicates Max Weber’s conception of politics as the “striving to share power or striving to influence the distribution of power, either among states or among groups within states” (1946: 78). Any human community wishing to attain the status of sovereign statehood must seek to monopolize the “legitimate use of physical force within a given territory” in order to assert its independence and, crucially, its identity.9 Yet such activity would be construed as illegitimate, to be met by the legitimate force of the state. The logic is self-fulfilling. In its binding of political space, sovereignty also allocates particular actors to particular spaces. Much of international relations happens to privilege sovereign states over non-state actors, which is not so difficult to understand given the prominence of states in international relations over the last few centuries. Yet by emphasizing states as primary actors and sovereignty’s divisional spatial role, conventional sovereignty theory fails to appreciate the causal linkages between non-state social agents and international (and domestic) change. As Democratic Sovereignty avers, and as the examples in Part II attest, the conceptual divide between international and domestic space is not as distinct as generally thought. Multiple actors—individuals, transnational social movements, non-governmental organizations (NGOs), international and supranational organizations, international courts, and tribunals—participate in the ongoing emendation of sovereignty regimes. Importantly, these actors introduce, communicate, and attempt to actualize diverse and not always incommensurable ideas of the content of just political order, which are contingent on: (1) widely shared values; (2) our ideas of what can be done to prevent certain deprivations, ameliorate living conditions, and sustain and promote international peace and order; and (3) available moral, material, and ideational resources (Sen 1999). Take, for example, the “responsibility to protect.” The International Commission on Intervention and State Sovereignty (ICISS)—comprised of academics, former policy officials, diplomats, and assisted by multiple agencies, governments, foundations, and non-profits, and constituted at the behest of UN Secretary-General Kofi Annan with the support of the UNGA—revisited the seemingly intractable problem of humanitarian intervention in the light of failures to halt genocide in Cambodia and Rwanda (ICISS 2001). Based

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on ideas of how to respond to and even prevent certain deprivations, and cognizant of available resources, the commission reformulated the terms of the debate in a manner acceptable (in principle) to the international community, since intervention all too often focuses on the rights of the interventionist state; conversely, a “responsibility to protect” focuses on the rights of those who suffer. As such, the principle both defends the sovereign state “on the grounds that the state is of authentic value to its population,” but locates the state in a larger moral project—that of protecting civilians from egregious harm (Wheeler and Morris 1996: 151). If one accepts this premise, then it is easy to conclude that “where the state fails to provide for the good life, its right to the protection of the norm of non-intervention should be called into question” (ibid.) This recalls our internationalist and incontrovertibility of life theses in Chapter 1. Instead of insulating the state from the external (or the international), as sovereignty is usually construed as doing, a democratic conception permits activation of a responsibility to protect when directed toward the defense of human life. Intervention, when conducted within certain protective parameters, does not usurp the state and sovereignty but supports it. Such broad-based participation in sovereignty regimes does not erode or undermine the sovereign state; indeed, democratic sovereignty remains committed to the state as a viable institution that has important work to do vis-à-vis the articulation and realization of values within and for particular communities (this is Althusius’ insight). Rather, our theories must appreciate that over time, multiple actors have helped constitute principles that regulate state practices. This makes it possible to construe sovereignty as a much broader social process, not as a thing or indicator of agency. As the Permanent Court of International Justice famously stipulated, “the question of whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations” (Tunis v. Morocco Nationality Decrees 1923 cited in Fox 1997: 114). Sovereignty’s content, in other words, is determined not by individual states but by the broader communities within which states reside. By shifting discourse away from the supreme authority of a particular agent (thing) and toward the supreme authority of the welfare of political community expressed as a broad set of human values (process), we locate sovereignty in a multi-layered, global politico-legal order that ties sovereignty to the activities of multiple non-state actors. Even some areas of moral and legal philosophy recognize that, according to John Finnis, there is no reason to deny the good of international community in the fourth order, the order of reciprocal interactions, mutual commitments, collaboration, friendship, competition, rivalry . . . If it now appears that the good of individuals can only be fully secured and realized in the context of international community, we must conclude that the claim of the nation state to be a complete community is unwarranted and the

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postulate of the national legal order, that it is supreme and comprehensive and an exclusive source of legal obligation, is increasingly what lawyers would call a “legal fiction.” (1980: 150) Political and ethical communities, which display at minimum a degree of self-expression (if not self-rule) and solidarity for common interests (Linklater 2005), have not been and need not be constrained by the framework of the state. They may be relatively permanent (national or religious communities) or relatively ephemeral (transnational social and political movements that largely dissipate after their objectives have been met, such as abolitionist movements; the antipersonnel landmines campaign; and the struggle against apartheid, to name a few). Chiefly, these communities help amend sovereignty norms and practices by communicating ideas about the content of just political order. When multiple actors reconcile diverse views of just political order, the results appear to us in the form of what I call in the next chapter regulative principles of legitimacy, or constraints on state behavior manifested in multilateral legal instruments that effectively transform sovereignty practices and norms. Examples include proscriptions (bans on slave trading, employing landmines or children as soldiers, selling conflict or blood diamonds, among others) and prescriptions (guarantees of individual religious liberty and human rights, and environmental protections, among others). Broadly construed, such principles: (1) codify widely shared ideas about the content of just political order; (2) are considered preconditions for the state’s decent standing in the international community; and (3) modify the conditions of anarchy, or what I call the coordination requirement of anarchy, meaning that even relatively unstructured, decentralized systems (laissez-faire capitalism, inter-state anarchy) require the coordination of certain basic functions and activities to ensure a modicum of system durability, stability and order. On this reading, democratic sovereignty transnationalizes certain features of a common good that cannot be restricted to particular political and ethical communities—say, the equal value of human life. Judging from the human security agenda, the Erdemovic judgment (1996), and the “responsibility to protect,” we might infer that individuals need to be assured of certain goods in order to live self-determined lives in conditions of mutual regard and toleration (this issue is taken up in the “Ethics” subsection on p. 76). Put differently, democratic sovereignty opens interior and exterior spaces to ethical critique, which permits great latitude in the possibility, realization, and maturation of ethical and political community and emancipates ethics from restricted spaces. By grounding sovereignty in common good practices, and linking it to the ongoing development of international law, sovereignty metamorphoses from a rather dull juridical concept that divides political communities into a process characterized by the reconciliation of diverse articulations of the content of just political order and the

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negotiation of pluralist predispositions and solidarist aspirations.10 Hence I define democratic sovereignty as final and absolute authority of political community rather than as final and absolute authority in political community. Time Conventional sovereignty theory produces a dramatic conceptualization of time. On the outside, international anarchy appears as a realm of repetition, plurality, and discord. The linear continuity of time appearing on the inside melds, on the outside, into a circularity dominated by ostensibly recurring imperatives and laws of structural mechanics, in short, to the endless competition and pursuit of state interests. While Kenneth Waltz (1979) provides the most vivid of reasoning along these lines, Paul Kennedy (1987) and John Mearsheimer (2001) lend support to the idea by appealing to a cyclical “rise and fall of great powers.” Democratic sovereignty sharply contrasts with this take—that international change is at best explained by changes in relative capability, at worst relegated to cyclical reproduction. Chapters 3 and 6 more fully take up the issue of international change. To anticipate the argument, I propose that regulative principles of legitimacy issuing from democratic sovereignty act as determinants and dimensions of international (normative) change. Variations within states-systems are not solely contingent on significant alterations in arrangements of material power, but sometimes hinge on overlooked moral legitimizations of sovereignty and the state in defense of a common good. Such legitimizations, I argue in Part II, are best measured and monitored in the progressive development and codification of international and cosmopolitan law.11 Progressive development of the law indicates the extent and degree of actor internalization of the law, as well as actor perception of what counts as law, or—to put the matter differently —“the political goodwill of the community of States” (Maogoto 2003: 30). Often unnoticed or under-appreciated in traditional sovereignty theory, these events-in-time significantly alter processes over time, transforming relations in ways that curtail privileges thought to emanate from sovereignty and in ways that, if we wish to use this language, remake the sovereign state. Thus, rather than replicate the argument of relative positionality—that changes in material capability vis-à-vis other states increases or decreases their power relative to those states—this argument restates international change in progressive, non-recurrent terms without having to bypass sovereignty (Cronin 1999: 4; Reus-Smit 1999: 159, 163) or advocate its disintegration. A progressive account need not be associated with some ambiguous, impersonal, hidden engine or hand of history. Further, a progressive account need and ought not be associated with technological and economic growth, or necessarily with rising standards of living. This sort of account is largely amoral—and even immoral—if one stops to consider that, on utilitarian

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reasoning, standards of living for most may rise owing to the enslavement and forced labor of others. By progress and progressive, I mean the awareness of conditions of unfreedom and oppression, and remedies to counter them. Awareness is linked to our conceptions of just socio-political order. In this respect, our conception of progress is praxeological as defined in Chapter 1. Because progress is tied to awareness, knowledge, and existing social structures and available resources, progress, as a praxeological account of human agency, should not be framed in linear or uni-directional terms. Rather, progress is punctuated by reaction and what may appear to those in the future as regression. This social conception of progress is based on learning; learning that is in large measure predicated on experience, the outcomes of which we cannot know but only after experience has been borne out in practice, over time, whose results appear to us in the form of lessons, lessons that later inform our thinking and our ideas about the content of just socio-political orders. Ethics A fairly strong argument can be made regarding progress in international relations, particularly with regard to human rights and the ethical treatment of the individual. For instance, Amartya Sen’s work with the United Nations Development Program (UNDP) has refocused development activities from emphasizing economic growth measured in terms of gross national product and income to advancing real human capabilities, well-being, and freedom to enable individuals to realize their potentials (Nussbaum 1992, 2002; Nussbaum and Sen 1993; Sen 1993, 1999). Ostensibly furthering Sen’s insight, the 1994 UN Human Development Report maintained that by broadening our conception of security to incorporate those goods, freedoms, and capabilities that permit individuals to live self-determined lives, we might defuse conditions that foster violence. This logic emanated from the observation that in the post-Cold War world, the majority of conflicts are not inter-state but intra-state in nature, and are largely attributed to preventable deprivations such as poverty, hunger, access to adequate health care, denial of citizenship, ineffective citizenship, or persistent disparities between ethnic communities or between regions. The UN thus conceived a human security agenda to protect “the vital core of all human lives in ways that enhance human freedoms and fulfilment.” Human security means protecting fundamental freedoms. It means protecting people from critical and pervasive threats and situations. It means using processes that build on people’s strengths and aspirations. It means creating political, social, environmental, economic, military and cultural systems that, when combined, give people the building blocks for survival, livelihood and dignity. Human

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security is far more than the absence of violent conflict. It encompasses human rights, good governance and access to economic opportunity, education and health care. It is a concept that comprehensively addresses both “freedom from fear” and “freedom from want.”12 IR theory has appropriated the logic in the guise of Critical Security Studies. The human security agenda aims to deepen the concept of security by recognizing that it is inextricably linked to “societal assumptions about the nature of politics” and political community (Bellamy 2005: 19); focus the concept and work of security on human emancipation; and broaden work in the security arena by moving beyond an orthodox formula that links security primarily to the threat or use of military force (Williams 2005: 136; see also Wyn Jones 1999). This central concern with human capabilities found expression in the 1996 judgment of Drazen Erdemovic, a 25 year-old Croat soldier who pled guilty for his role in the massacre of over 1,200 Muslims in Srebrenica, by the International Criminal Tribunal for the Former Yugoslavia (ICTY). Crimes against humanity, the judges noted, are serious acts of violence which harm human beings by striking what is most essential to them: their life, liberty, physical welfare, health, and/or dignity. They are inhumane acts that by their extent and gravity go beyond the limits tolerable to the international community, which must perforce demand their punishment. But crimes against humanity also transcend the individual because when the individual is assaulted, humanity comes under attack and is negated. It is therefore the concept of humanity as victim which essentially characterizes crimes against humanity. (Prosecutor v. Erdemovic 1996: para. 28) Further, given the shocking nature of genocide, crimes against humanity, and war crimes, the international community revived consideration of the permissibility of intervening in situations to halt such atrocities. In 2001, the ICISS generated The Responsibility to Protect, which single-handedly changed the terms of the humanitarian intervention debate from “the right to intervene” (which too often “focuses attention on the claims, rights, and prerogatives of the potentially intervening states”) to a “responsibility to protect” communities from egregious acts of violence, including “mass killing . . . systematic rape and . . . starvation” (2001: 16f.). World leaders adopted in principle a “responsibility to protect” during the September 2005 world summit honoring the UN’s 60th anniversary, and called upon the UNGA to continue consideration of it and its implications.13 Taken together, these developments appear to challenge the edifice of international relations by appealing to a more primordial, more elemental

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unit of international political analysis: the individual. As such, these developments raise the specter of what Hedley Bull (1995 [1977]: 19, 16ff.) called “world order,” or a world devoted toward sustenance of “the elementary or primary goals of social life among [human]kind as a whole” (emphasis in original). Substantive considerations of justice have come to buttress world order and include species preservation, or the preservation of human life and human civilization from mass annihilation, whether in the form of chemical, nuclear, or biological weapons-based destruction or egregious human rights abuses; distributive justice, which we may identify with a “more equitable distribution of wealth” or with promotion of “minimum standards of wealth or welfare”; and ecological justice, or “the solidarity of all human beings in facing [and resolving] certain ecological or environmental challenges that face them as human beings” (ibid.: 81). To put the matter in the idiom of Chapter 1, individual human rights (and more broadly human values) and state sovereignty might appear fundamentally opposed. Further, such developments point to the rise of transnational socio-political, ethical communities beyond and outside the sovereign state that significantly affect it. But contra IR theorists who either ignore these developments or exaggerate them to the point of declaring sovereignty is eroding, disintegrating, or even dead, practitioners have repeatedly stressed that these developments do not undermine the sovereign state but strengthen it by calling to account sovereignty norms and practices. Each does the hard work of world order in Bull’s sense: that is, each achieves order among states, as well as order within states (Bull 1995 [1977]: 21). The concept of world order thus has come to be more actual than notional—and sovereignty theory needs to recognize this. If world order is buttressed by conceptions of justice, which in turn inform conceptions of a common good, then sovereignty theory has largely glossed over the connections between justice, a common good, and sovereignty. Indeed, the literature, by underscoring sovereignty as an aggregate of political control, state functions, and regulatory mechanisms that extend the global capitalist project in ways that only occasionally add up to some ethical good, introduces at best a conflation of, and at worst a pernicious division between, the “national interest” and the common good (Hardt and Negri 2000; Krasner 1978, 1999; Weber 1995).14 If Samuel Huntington (1967: ch. 1) and Stephen Krasner (1978) collapse the latter (as representative of citizens’ public interest) into the former, then Robert Keohane (1995: 167) seems to divide the two by tying sovereignty (as control over the state) to “the rational interests of elites that run powerful states.” Bruce Cronin’s Community Under Anarchy, however, attempts to bridge the divide by arguing that “transnational identities can transform egoistic conceptions of sovereignty into perceptions of commonality by facilitating the notion of a common good” (1999: 125f.). Our projects find congruence in transcending the egoistic conceptions of sovereignty. But Cronin’s invocation of a common good obscures real moral advance in international life.

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From his observation that “states are conscious of themselves as constituting a social group [and thus] develop a communality of interests,” he derives the equation of a common good with communality or “group cohesion” (ibid. 127). To illustrate, he maintains that in the nineteenth century European Concert system “there was . . . a clear concept of a common good” in the monarchical principle: “an aristocratic Europe of monarchies in which security was collectively managed by a small group of mutually acknowledged great powers” (ibid.). Yet in this example he fails to distinguish between a nonrelativist common good that defends and advances the rights of all, and a relativist conception of goods that benefit a few. On his account, we might say that the Crusades, slavery, the disenfranchisement of women, political absolutism, racism, apartheid, Israeli oppression of the Palestinians, and terrorism, among others, count as common good activities, for each in significant measure satisfies his minimal criteria of the common good— interest cohesion among the powerful. Cronin overlooks the anti-democratic, repressive nature of interventions in democratically governed countries (Piedmont, Naples, and Spain, among others), and the impossibility of justice in the face of hierarchically imposed order as evidence of a relativist conception of goods that he attempts to pass off as a common good. Such interventions and their violations of the moral value of self-determined governance compelled Britain’s spirited dissociation with the other Concert powers, and contributed to France’s gradual discomfiture with the oppressive scheme.15 In the final analysis, Cronin’s transnational identities rest on state interests—which does not take us far into expression, approximation, or realization of a true common good, only contingent, relative, contextual goods. He thus falls into a trap Hedley Bull earlier set for himself: making justice contingent on order, or relativizing justice, which by itself serves no overt moral purpose and can even propel states into serving immoral (not simply amoral) ones. Bull’s conception of justice falters in that it connects justice to order in a way that subverts the former’s realization to the latter. Bull thrice classifies justice: international, individual or human, and cosmopolitan or world justice (1995 [1977]: 78–82). International justice concerns the moral rules held to confer rights and duties upon states and nations, for example, the idea that all states, irrespective of their size or their racial composition or their ideological leaning, are equally entitled to the rights of sovereignty. Oddly, his definition of justice echoes his conception of order, defined in terms of patterns of activity that sustain certain primary or elementary goals of the society of states (ibid.: 8). These goals include the “preservation of the system and society of states itself,” the “independence or external sovereignty” of states, “the goal of peace,” and “the common goals of all social

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life: the limitation of violence . . . the keeping of promises and the stabilization of possession by rules of property” (ibid.: 16–8).16 If justice secures the same basic scheme of equal (presumably juridical) rights, then how can Bull account for real inequalities and injustices that may result from a purely formal application of the concept of rights? His account of justice could only perpetuate the unequal distribution of burdens and benefits in a selfhelp system. Here, justice (in a skewed sense) is but an incident of order. Thus, not only does Bull reduce justice to conditions of order (defined as the procurement of certain minimal goals), but he inadvertently suggests that anarchy has greater explanatory power than conscious decision-making within the society of states. By individual or human justice Bull means “the moral rules conferring rights and duties upon individual human beings” (ibid.: 79). Duties he restricts to the conflict between a citizen’s duty to her state and to rules of war. Rights he restricts to human rights and the rights of persons in relation to non-state entities. But his account is confined within state boundaries. While he hints at problematizing relationships of authority and loyalty (and, by implication, citizenship), Bull fails to consider the extension of moral duties and rights to other individuals across the globe when faced with cruelty, oppression, domination, and repression—a position most recently advocated in The Responsibility to Protect, which maintains: sovereign states have a responsibility to protect their own citizens from avoidable catastrophe—from mass murder and rape, from starvation— but that when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states. (ICISS 2001: viii) Finally, Bull defines cosmopolitan or world justice in terms of the realization of a “world common good,” defined as “the common ends or values of the universal society of all [human]kind” (1995 [1977]: 81). The ideas animating cosmopolitan justice “spell out what is right or good for the world as a whole, for an imagined civitas maxima or cosmopolitan society to which all individuals belong and to which their interests should be subordinate.” Individual rights and duties on this view are determined by the civitas maxima and do not exist prior to it. Thus a view of justice as obedience to law and obligation to duties may, if dictated in non-mutually regarding situations, require the perpetuation and exacerbation of certain injustices—say, slavery or the expulsion of ethnic minorities for the greater good. We have an account of duties to goods, but not duties—moral duties—to one another in the face of more direct threats. Whether we subsume this moral duty, that is, the duty to halt pernicious, aggressive policies of states and corporations under individual or cosmopolitan justice is of little importance. In fact, it may fall under a different category, one which we may call democratic justice that, in contradistinction to cosmopolitan justice, links

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the interests and needs of individuals despite the existence of states. Compared with individual justice, democratic justice transcends the state’s singular hold on the individual and recognizes that I, as a citizen of country A, may find my interests and values in halting the oppressive policies of country B in solidarity with B’s citizens (whereas my government may support and aid such oppressive policies). Case studies in Part II confirm the validity of such an approach. Bull and Cronin condition justice on the preordination of order.17 Yet save for Bull’s primary goals of international society, his account of justice lacks a suitable referent. How, for example, could Bull (or Cronin) account for slavery and its abolition? Clearly, a defense of the slave system could be made on the basis of the stabilization of the rules of property—one of Bull’s primary goals of all human societies—if we understand slaves to be property, with the act of stabilization signifying a “common interest.” Likewise, peace may be a cold, militarized one defined minimally as the absence of war, and in which forms of association and contact between peoples are limited out of so-called politico-military imperatives. The argument may require the exclusion and active repression of nations seeking independence from larger states, say, Tartars and Chechens in Russia, the Palestinians in Israel, etc., for purposes of preserving the states system. Further still, the argument may necessitate the artifice of “enlightening” colonial empires to keep out “uncivilized” peoples. The examples indicate order often comes at the expense of justice. Order does not enhance the attainment of “secondary” goals—perhaps for a state and business elites, but certainly not for all; order can, and often does, suppress justice’s approximation. Witness the ease at which domestic politics becomes hostage to military projects in which dissenters at home and abroad are stigmatized according to the discrediting designs of a “Project Morgenthau” (Gilbert 1999: ch. 2; Morgenthau 1965: 9–20; and 1970); or when the Bush Administration characterizes the questions of Democratic Party leaders directed toward the president and the Federal Bureau of Investigation (FBI) and Central Intelligence Agency (CIA) directors regarding knowledge of evidence pointing to the 11 September 2001 terrorist attacks as “secondguessing,” “inappropriate,” and attempts to “undermine the administration” (Bumiller and Mitchell 2002). The appearance of justice through the defense of “peace,” property, and other conditions of order deceives by masking injustice as justice, thereby vindicating Plato’s insight that “the highest form of injustice is to appear just without being so” (1985: Book II, 361a, p. 56). There is no justice in brutal repression or conditions of aggressive war, or even (at times) in mere maintenance of basic rules of order. As Part II illustrates, sovereignty’s history demonstrates that its constitution and modification are in part derivative from the reconciliation of not always incommensurable ideas of the content of just political order. Such conceptions, to reiterate, are contingent on: (1) widely shared values; (2) our ideas of what can be done to prevent certain deprivations, ameliorate

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living conditions, and sustain and promote international peace and order; and (3) available moral, material, and ideational resources. Because sovereignty practices are qualified by ideas about the content of just political order, and thus come to reflect shared normative values, I contend we ought to construe sovereignty not so much as final and absolute authority in political community, but as final and absolute authority of (the ends of) political community. The point of the prepositional change is to underscore the nature of political authority (and specifically that of sovereignty as a particular sort of political authority and identity claim) and its orientation toward those it serves and represents. If we accept this, then we can reasonably advance sovereignty theory by incorporating practical developments in international relations without having to excuse sovereignty or postulate its erosion or untimely death. Here, I focus on what I call a core scheme of human values or democratic goods. Such goods, as adaptations of values proposed by the New Haven School of Law, legal philosopher John Finnis, the Erdemovic judgment, and the human security agenda, animate sovereignty’s ethical content by serving as referents of policy considerations and justice.18 This scheme includes, but is not limited to, life, liberty, enlightenment, skill, affection, and dignity, and their derivatives. By life I mean all those activities, opportunities, and goods that sustain and protect “the vitality (vita, life) which puts a human being in good shape for self-determination” (Finnis 1980: 86). These include, but are not limited to, food, clean air and water, bodily and mental welfare and health, freedom from deliberately inflicted pain, and procreation. By enlightenment I mean all those activities, opportunities, and goods that allow one to live a spiritually and intellectually complete life, as well as access to things that give meaning to living (i.e. friendship, religion, books, art, music, exercise, leisure-time activities). Unlike Finnis, I subsume the concept of “play,” for various forms of play—social or solitary, intellectual or physical—purge internal negativities and enemies, thus enabling us to reach higher levels of self-understanding or enlightenment. As with all core values, these are activities and goods pursued for their own sake, and not for instrumental purposes, i.e. as “useful in the pursuit of some other objective, such as survival, power, popularity, or a money-saving cup of coffee” (ibid.: 59). Skill pertains to a body or system of knowledge to realize our potential. Prima facie, skill appears instrumental. But, on a deeper reading, skill enables one to excel, to negotiate an appropriate self-defined good in terms of particular activities, and to permit one to live an authentic life of selfdiscovery and creativity. Skill includes all those activities that make it possible for an individual to participate in the world, to self-preserve and develop, to provide care to others (family or charity for example). The concept of skill, furthermore, recognizes that people aim to develop some natural talent—to play the cello, for example, either as a means of making

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a living or purely as a means of self-fulfillment, though such activity may be both. Following Aristotle, skill actualizes the agent’s capabilities, “and so expresses [her] being” (1985: 1168a6, pp. 252, 369). Affection includes all those connections we seek with others—filial, Platonic, romantic, social, and otherwise—that have more than fleeting, instrumental purpose to our individual lives and which do not deliberately harm others. Finally, dignity speaks to that general quality of life itself, and to that specific quality of being recognized—and respected as—an individual with specific histories, goals, talents, objectives, feelings, needs, desires, and flaws. I extend dignity to include basic respect for nature in all its forms— mountains and plains, rivers and oceans, animals and insects (D’Amato and Chopra 1991; Glennon 1990). Several points are in order. First, this list of human values or democratic goods is not exhaustive. As it stands, these core values emanate from a twenty-first century reflection on human life—how we live it, what we need to live a fulfilling life—and stem from the observation that many people at minimum find objectionable, and at maximum detest poverty, murder, homelessness, welfare, famine, corruption, intolerance of minorities, and other deprivations and cruelties because they are an affront to our value systems. Second, I provide only generalized sketches of each good since each is, ultimately, culturally, historically, and technologically contingent. I call this a necessary, minor relativity, because while these values may “exclude certain possibilities as unjust or immoral,” they do not “necessarily narrow the possibilities for a just . . . ordering . . . to a single uniquely correct option” (George 1998: 63f.). Additionally, a minor, thin relativity is sensitive to “differences in relational perspectives.” As Sen notes, being relatively poor in a rich community can prevent a person from achieving some elementary “functionings” . . . even though her income, in absolute terms, may be much higher than the level of income at which members of poorer communities can function with great ease and success (2000: 71) Thus, our conception of welfare in, say, the 1700s, logically excludes such innovations as indoor plumbing and electricity (which inarguably make certain quotidian chores and life easier—think of the labor intensive activity of washing clothes with a washboard versus throwing clothes in a washing machine). Similarly, the meaning of welfare and health—derivatives of the value of life—for someone afflicted with AIDS in the early 1990s starkly contrasts with conceptions in 2006 owing to advances in drug therapies and public perception. Indeed, an individual living with AIDS in 2006 can pursue a relatively healthy, “normal,” life. Again, the relativity is minor. Despite this minor relativity, third, these goods are necessarily first order because they “make available to human agents rationally grounded options

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for choice (‘practical possibilities’)” (George 1998: 55). In other words, denial of these goods—which represent “horizons for human activity” (Finnis 1980: 63)—fundamentally harms human beings by limiting the conditions within which they may realize their potential, and thus strike “what is most essential to them.” Democratic goods realize what Sen calls “substantive freedom,” or that condition of having the “capabilities to choose a life one has reason to value” (2000: 74f.). Capability “refers to the alternative combinations of functionings that are feasible for [a person] to achieve,” and thus concerns “the substantive freedom to achieve alternative functioning combinations (or, less formally put, the freedom to achieve various lifestyles).” The concept of functioning, “which has distinctly Aristotelian roots, [in turn] reflects the various things a person may value doing or being.” Persons free to pursue various lifestyles and life projects, so the logic goes, contribute more fully to community and state, which are then charged with the tasks of removing “major sources of unfreedoms: poverty as well as tyranny, poor economic opportunities as well as systematic social deprivation, neglect of public facilities as well as intolerance or overactivity of repressive states” (ibid.: 3). Sen and Finnis share in the view that a common good entails “securing . . . a whole ensemble of material and other conditions that tend to favor the realization, by each individual in the community, of his or her development” (Finis 1980: 154). In Gilbert’s idiom (1990: 28), the common good involves “a series of concordant means in the actualization of diverse—in one important sense, incommensurable—goods,” though the common good cannot be reducible to individual interests. Because a common good rests on mutual regard between people, it perforce rules out aggression and cruelty as primary means of securing material goods and other conditions. A capabilities approach to development, which found expression in the human security agenda, the Erdemovic judgment, and a responsibility to protect, arms human rights thinking with the dual idea that, first, human beings require certain basic goods to live self-determined, fulfilling, productive lives and, second, in their pursuit of the former, they must be free from cruelty—acts designed to terrorize and cause anguish and fear—and suffering. Cruelty and suffering curtail, even abolish, liberty and freedom, and often generate worsening conditions that devolve into threats to and breaches of international peace and security. But putting cruelty or suffering at the forefront of our moral and political considerations in an effort to ameliorate the human condition may result in intense forms of cruelty itself—acts of retribution done in the name of suffering. My argument does not preclude the use of force as a last resort to remedy egregious wrongs; indeed, it presupposes and in a sense demands force in certain instances. Examples might include slave revolts for freedom (Saint Domingue, the Amistad); wars against nefarious, predatory regimes with well-known, persistent, and systematic records of atrocities at home and abroad (Nazi Germany; Milosevic’s Yugoslavia; Indonesia’s vicious

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assault on East Timor; the situation in Darfur, Sudan); or humanitarian intervention to provide necessary food aid to famine and civil war victims (Somalia, Liberia, Sierra Leone, Haiti). The argument avows what Hegel describes as “struggles for recognition in connection with something of intrinsic worth” when societies are confronted with aggressive, expansionist, racist, imperial regimes (1952 [1821]: para. 351). Aristotle, too, praises selfdefense against external aggression (1958: 1328b, §7, p. 299). Both points affirm basic, morally objective facts about the uncontroversial good of life and freedom against aggression and cruelty. Thus, finally, democratic goods are morally objective features of life and, as substantive considerations of justice, must be placed at the center of domestic and international public policy. Moral objectivity refers to mutual regard among persons and encompasses tolerance, basic equality, and individuality defined as both “a capacity for moral personality” (Gilbert 1990: 2) and, as Aristotle puts it, living as one likes within certain ethical constraints, or “within the interchange of ruling and being ruled . . . [which] contributes . . . to a general system . . . based on equality” (1958: Book VI, ch. ii, 1317b, §3, p. 258). But equality must be qualified: in political systems, it cannot be construed arithmetically, for there is a danger in “leveling” in the extreme. In this regard, Aristotle contrasts forms of government that “adopt [a] policy of leveling with a view to their own particular interest” (a relativist conception of goods) with those that govern in terms of a strict common good (a nonrelativist common good) (ibid.: 1284b, §20, p. 136). A policy of ostracism (as an example of arithmetic equality) might, for example, banish exceptional individuals; while “expedient and just” from a particular point of view, ostracism is “not absolutely just” (ibid.: 1284b, §24, p. 136). Arithmetic equality may actually adversely affect societies (think of the Khmer Rouge project as an extreme, but apt, example). For Aristotle, a general system of equality consists in “living as you like”—what he calls “civil liberty” (ibid.: 1317b, §3, p. 258)—in conditions of reciprocity. While living as one likes “is the function of a free man,” it requires more than formal equality of access to democratic goods or unhindered, non-other regarding, liberty. Formal equality, according to Sen, ignores substantive inequalities and deprivations. (Put basely, a right to vote—and equality of access to voting booths—means little if a person lacks basic nutritional/caloric requirements to give the person energy to get to a polling booth or, alternatively, if access to polling booths fails to provide the infrastructure necessary for physically impaired—say, wheelchair-bound or blind—individuals to access and use such booths.) Neither must liberty devolve into pure arbitrariness of will or the fulfillment of natural desire or impulse, nor must it be coincident with the will to harm or (maliciously) restrict others.19 Because the democratic project affirms mutually regarding agents, freedom denotes not that condition of pure license analogous to states of nature (license, according to Aristotle and Rousseau, is not freedom), but that condition of sociality resulting from political association (Arendt

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1968: 163ff.). It is in this regard that Hegel can remark that freedom means acting in accordance with “what is rational” or “in accordance with the concepts of ethics in general” (1952 [1821]: para. 15 Addition, p. 230). Compared with earlier Greek kingship and barbarian servitude, both Aristotle and Hegel rightly emphasized the novelty of freedom in Athenian democracy, despite institutions of slavery, racism, and sexism (Gilbert 1990: ch. 1). On this reading, the distinctiveness of the state as the highest form of association rests on freedom, which in an important sense permits development of its aim of “true felicity” or eudaimonia and “free choice” (Aristotle 1958: 1280a, §6, p. 118). Eudaimonia is the energy and practice of goodness, to a degree of perfection, and in a mode which is absolute and not relative . . . By relative, we mean a mode of action which is necessary and enforced; by absolute we mean a mode of action which possesses intrinsic value. (ibid.: 1332a, §§5–6, p. 312)20 We might, then, formulate the claims of formal equality in any number of idioms, including, but not limited to, the equal freedom of each person (Rousseau 1954), the primacy of individual human rights (Donnelly 1984, 1989, 1998, 2000b), the equal priority of all citizens (Rawls 1971), or the primacy of equal liberty (Dworkin 1978). Regard for each person as an end in herself (Kant) warrants against prioritizing procedure over substance. The idea reveals the incoherence of majoritarian, “scientific” definitions of democracy that stress procedural matters over expressions of a general good. Taken in an extreme, histrionic sort of way, to recall my earlier parody, numerical majorities of the sort women possess in the United States might therefore decide to disenfranchise all males; non-white ethnic groups may then disenfranchise whites. The exaggeration exposes the limits of putative value-neutral political conceptions of majority-based democracies absent a common good. No democracy can be coherent which, as a series of wills of all, abolishes the equal rights of each citizen. Put differently, the extension of equal basic rights to all citizens is a necessary condition for democracy (even construed as majority rule) to achieve a common good, as opposed to a self-negating series of wills that realize only particular, tyrannical interests. Of course, I do not answer the hard questions: which goods to which people, how much for whom, and why, etc. I leave these to public debate, for each claim to democratic goods must be negotiated within a broader social context. However, a caveat is in order. A common good defined in terms of freedom requires that “what is ‘right’ should be understood as what is ‘equally right’; and what is ‘equally right’ is what is for the benefit of the whole state and for the common good of its citizens” (Aristotle 1958: 1283b, §12, p. 134). Thus, particular goods for one class of people must never precede goods for all people when pursuit of particular goods inhibits the substantive freedom

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of others.21 Or, in a previous idiom, life-enhancing goods for particular classes of people should never supersede life-sustaining goods for all people when pursuit of the former inhibits realization of the latter. Illustratively, parents should not be forced to choose between feeding their children, and, say, providing them with adequate health-care. Likewise, the concentration of wealth in the hands of fewer and fewer individuals unjustly disadvantages multiple life projects, especially those of the least well off, and therefore must be adjusted.22 On an important level then, reflecting, say, an objective notion of the good of life over the lack of substantive freedom or, more extreme, wonton slaughter, certain values and their derivatives must take precedence over others in certain instances. This is the insight of the human security agenda and “the responsibility to protect.” In the final analysis, democratic sovereignty is an ethical–political project. It is ethical because it concerns the range of permissible state activities both at home and abroad in direct relation to human welfare. It is political because it considers the construction and regulation of sovereignty as an exercise of power, defined broadly as some measure of input or influence on important decision-making processes and procedures that affect the whole of the political community. Democratic sovereignty concretizes in some significant respects David Held’s (1995) “cosmopolitan democracy” and Andrew Linklater’s cosmopolitan citizenship that “counterbalance[s] the increased opportunities for elite domination which accompany the decline of the modern territorial state” (1998: 193). A specific emphasis on democratic goods and a general theory of democratic sovereignty constitutes citizenry as a global demos with very real claims on domestic, national, international, and transnational communities. As such, the ethical approach posited here transnationalizes certain features of domestic political life in a way that makes specious the claim that bounded political communities (state) are “complete,” and that “the national legal order . . . is supreme and comprehensive and an exclusive source of legal obligation” (Finnis 1980: 150).

Conclusion Our two competing conceptions have yielded vastly different portraits of sovereignty as a statement of “final and absolute authority.” An orthodox state sovereignty is imposed upon and transcends the communities it represents and in which it is presumably invested. Further, it spatially divides political space to the detriment of community development and ethical advance, and pins change on state interests, state determination of the operative environment of anarchy, and the rationalizations of efficient, economistic structures in the project of “empire.” Contrariwise, a democratic sovereignty emanates from and serves the communities in which it resides; subverts spatial divisions in favor of the development of communities (both within states and beyond states) in conjunction with common good oriented activities; and pins change on

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evolutionary moral learning and the progressive development and codification of international law, which in turn is influenced by a myriad of actors. Democratic sovereignty radically qualifies the hierarchy of political space by defining authority in terms of human values. In short, democratic sovereignty shifts our attention from impunity to accountability; from prerogative to regulative structures defined in terms of core democratic goods; from a particularistic, state-based society of states to a multivalent global political system hinged on the development of normative strictures.

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3

Structuring democratic sovereignty

Architectonic impulses We now consider the first question posed by praxeology—explaining democratic and state sovereignty’s coexistence. The simple explanation is that democratic sovereignty modifies state sovereignty; the more nuanced one involves a bit of theoretical and practical imagination because, simply stated, states continue to pursue aggressive policies despite ethical advancements. To capture the complexities of such imagination, I employ the term “architectonic” as invoked by Nicholas Onuf and, before him, Sheldon Wolin. Architectonic refers to the political imagination’s attempt “to mould the totality of political phenomena to accord with some vision of the Good that lies outside the political order” (Onuf 1998: 89; Wolin 1960: 19). Here, that vision of the Good corresponds to certain conceptual orderings of the political universe, or ideas of (how to fashion) a just political (world) order based on actualizing democratic goods. The skeptic will invariably contend that state sovereignty practices generally reflect particular wills that abolish substantive, equal rights for all. How, then, might we reconcile these two distinct sovereignties? Our question assumes particular poignancy in light of the George W. Bush Administration’s “War of Terror” and rejections of common good sustaining measures such as the ICC, the Landmines Treaty, the Kyoto Protocol, and the ban on the use of children as soldiers. Even if popular movements modify state policies for the better, the state lives on and undercuts reforms made. Democratic sovereignty thus appears in a Marxian vein a weak argument for piecemeal reform. A Marxist, environmentalist, or human rights advocate might balk at staggered reform, arguing that the state serves the ruling, capitalist class over and against a common good for people. But to argue from the standpoint of American recalcitrance is to accord hegemony explanatory primacy, as if the ICC, Landmines Treaty, and many other global common good measures have not entered into force and do not enjoy considerable international support.1 The fact that one state or even a few states ignore or actively campaign to derail what may be construed as global common good measures does not necessarily entail the impossibility of a

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democratic sovereignty. As Rousseau suggested, “the bounds of possibility in moral matters are less narrow than we imagine” (1993: Book III, ch. 12, p. 261). Global common good measures take time to develop; they do not develop overnight. Protests against the slave trade did not, after all, result in its immediate abolition. Rather, it took states over 200 years to abandon that “odious commerce” (Murray 1980). Likewise, popular protests in 1848 delegitimized the monarchical principle formulated by the great powers at the Congress of Vienna (1815), though the principle influenced European politics until 1905. Importantly, alliances between citizen-based movements and so-called like-minded states have reformed state policies and practices. In these cases, citizens of particular states meld into self-reflective, self-aware, other-regarding global agents. Put philosophically, self-conscious Socratic inquiry mollifies Cephalic aristocracies of wealth, Polemarchan ochlocracies of opinion and obedience, and Glauconian or Thrasymachian tyrannies of force and caprice. Put more concretely, democratic sovereignty pushes inquiry to specific aspects of the economy, including, for example, sweat shops, impoverishment, and fair trade versus free trade; gender issues and disparities; environmental protection through (imperfect) treaties like the Kyoto Protocol; promotion of the rule of global law; and cooperation between states in the resolution of global collective action problems. This chapter proposes a model of sovereignty (Figure 3.1) that incorporates multiple facts about (democratic and state) sovereignty. In particular, Figure 3.1 captures the robustness and durability of sovereignty, as well as its remarkable fluidity or adaptability. If we are to explain and understand sovereignty in any comprehensive sense, then not only must we possess facts about it (its origins, definition, and operation), but also a plausible theoretical construct designed to clarify the relationships between these components. Many studies to date have analyzed particular features of sovereignty, in particular its legal and functional aspects; but none have extended a systematic conceptual analysis to the unique way sovereignty shapes both the domestic and international systems it purportedly constitutes. First level ordering recognizes that sovereignty constitutes modern political life (James 1986; Onuf 1998; Walker 1990) and is a generative grammar (Ruggie 1986, 1998) or a practice rule (Onuf 1989: 51f.; Rawls 1955). Second level ordering defines the system’s units and specifies the “conditions for agency” (Onuf 1998: 183). As such, it encompasses Gong’s “standard of civilization” (1984) that stipulated ground rules for admission into the society of states. Second level ordering of legitimacy builds upon the work of such theorists as Barkin (1998), Chayes and Chayes (1995), Fox (1997), and Hurd (1999) who link sovereignty to conceptions of legitimacy and, moreover, to the idea that a state must adhere to certain norms to attain good standing in the international community. Far from simply constituting an international system of autonomous states cautiously defending their parcels of geographic space, sovereignty delimits bounds of permissible behavior and expresses regulative rules for engagement2—but

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Third level ordering SCOPE EVOLUTIONARY Second level ordering PRINCIPLES OF LEGITIMACY

DURABLE

DEFINITION

First level ordering FOUNDATION

Figure 3.1 Constitutional structures of constitutive principles

in a much deeper way than some suggest. Principles of legitimacy manifest the social process by which various actors (sub-state, state, supra-state) negotiate the contours of both a just global political order and what it means to be sovereign. While morals and norms alone cannot always explain significant changes in the system, when coupled with material forces they engender enormous seismic reverberations (see, for example, Bukovansky 2002 and Philpott 2001). Thus, contra Janice Thomson, there is a certain “proliferation of norms” in the international system that “represents moral progress” (1992: 217). The institution of sovereignty has not always permitted states to behave as they see fit in part because normative frameworks have constrained sovereign prerogative and practices. Finally, third level ordering of scope rearticulates the argument surrounding the effect of functional dispersion to non-state actors on state sovereignty. Here, I argue that the dispersion of functional responsibilities to non-state actors does not portend sovereignty’s demise or disintegration. Contra approaches that deny a change in state power and ignore real democratic changes (for example, Krasner 1999), promote a global civil society (for example, Lipschutz 1996), or contend the withering of the state and its sovereignty, Figure 3.1 captures a progressive account in ways Hegel did not, and perhaps could not, imagine. It does so by exposing important variations in actors and institutional structures—both of which affect the other—by focusing on the contraction of the range of permissible state behavior expressed in the regulative principle of legitimacy. Somewhat counter-intuitively, the principle links enduring democratic and moral

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advances with more ephemeral, less democratic, state-focused legitimizations. Put more strikingly, the principle of legitimacy highlights the conflict between democratic goods and state interests. We might also say that the principle acts as a determinant and dimension of systemic change (Ruggie 1986). A caveat, however, is in order. Limitations on state behavior and sovereignty are self-imposed (at least by great powers), but the act of imposition does not always occur in contexts of power maximization and the pursuit of pure self-interest. Despite gravities of international politics, the license reputedly granted to the state and its agents by virtue of sovereignty has been limited throughout history by the pursuit of genuine common goodoriented activities by diverse agents. These restrictions, moreover, signify an evolving international legitimacy under which states are subject to behavioral regulation. Since 1555, democratic norms, that is, norms related to extending fundamental rights, freedoms, and capabilities (what I have called democratic goods), have transformed domestic and world politics. The principle of legitimacy—arguably the cornerstone of understanding ethical advances, and hence progressivism, in international relations—tames (and democratizes) the state by allowing for the negotiation of not always incommensurable ideas of the content of just political order to reform and reframe sovereignty practices. First level ordering If we think in terms of system and structure, foundation is the level of deep structure. Foundational principles constitute systems by identifying members and, with assist from second level defining principles, their relation to one another. Historically, we may distinguish three broad constitutive principles—suzerainty, heteronomy, and sovereignty—that entail different actors and their relationship to each other, and constitute particular systems. Suzerains and their tributaries are situated in hierarchical relationships; feudal monarchs and lords in multiple-hierarchic, overlapping relationships; and states in formally equal relation to one another. With regards to sovereignty, constitutive principles enshrine its most durable and distinct feature: constitutional independence of a defined political community (the state) recognized by other like units (James 1986). Krasner (1999), though, appropriately identifies anomalies (i.e. continued recognition of the exiled Polish government during World War II as sovereign) to show that the principle, while durable, is not inelastic. Table 3.1 summarizes these principles and the historical systems with which they are identified. Suzerain systems are those “in which one political unit asserts . . . paramountcy over the rest” (Wight 1977: 17). Because suzerains—being “the sole source of legitimate authority”—confer “status . . . and exact tribute or other marks of deference” from subordinates, suzerain systems may be characterized as strict hierarchic authority systems. While suzerains possess

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Table 3.1 Constitutive principles Unit arrangement

Type of authority

Historical variant

Suzerainty Hierarchic

Strict hierarchic

• • • •

Heteronomy Multiple-hierarchic Overlapping

Contingentmultivalent

• European feudalism • Japanese feudalism

Sovereignty Anarchic

Ultimate

• Greco-Roman period • China during Warring States • Modern states-systema

Imperial China Byzantium Abbasid caliphate British Raj-Indian principalities

Note: a Wight (1977: 16–27) divides the states-system into two types: primary and secondary. While, in the former, members are states (the modern states and the Greco-Roman system), in the latter, members are systems of states (relations between the Roman and Persian Empires, and twelfth–thirteenth century relations between Eastern Christendom, Western Christendom, and the Islamic world). We might think, then, that the EU reintroduces the logic and practice of secondary states-systems into international relations. Entrenchment of states in a strengthening African Union provides further empirical evidence of this seismic shift.

ultimate authority over political inferiors, authority is always attributable to some other source: to the suzerain power, in the case of subordinate units, or to a higher (usually divine) authority in the case of the suzerain power. Illustratively, the overlord claims of the Chinese Emperor issued from the “mandate of heaven” (Ames 1964; deBary et al. 1960; Confucius 1971; Fung 1948); those of the Byzantine Basileus from the Christian God (Wight 1977: 23); the Abbasid Caliphate’s from the prophet Mohammed (whose authority in turn derived from Allah); and the British Raj’s from an imperial design under which 600 native Indian princes were granted local authority by the Queen of England, whose power in turn was nominally derivative from the people, and ultimately from God (Bull 1995 [1977]: 17, 23f., respectively; see also 23–9, 34f., and 75–94 ).3 Heteronomous systems, such as the European and Japanese feudal periods, describe overlapping, multiple-hierarchic layers of jurisdictional claims informed by an array of political and personal rights and responsibilities emanating from the holding of “fiefs” or land or other goods held in trust (Strayer and Munro 1959). Authority in such systems is multivalent and contingent on property ownership and, in the European feudal experience, on one’s place in the “great chain of being” (Lovejoy [1936] 1970). Thus, an individual could serve simultaneously as a subject and a

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lord, one who settled jurisdictional disputes, and one against whom such disputes were brought. This markedly differs from sovereignty-based systems, which are structured on the independence and legal equality of all recognized units conceived, in a contemporary sense, as the institutionalization of territorially and authoritatively autonomous agents. Strictly speaking, definitions belong to second level ordering; suffice to say at this point they clarify system type and indicate the relationships between and placements of the primary units. To iterate, generalization at this level of deep structure is high; only with reference to second level ordering, process, and relations do constitutive principles such as sovereignty assume content. Second level ordering: definition and legitimacy If first level ordering represents deep structure, then second level ordering, twice subdivided, qualifies that structure. Second level ordering principles both define the units and, by specifying standards for association, order their relations. In another idiom, these principles speak to the fitness or suitability of sovereignty in specific contexts, meaning that actors “possess attributes that facilitate the successful adoption of innovations” or adopt “new ways of doing things” (Thompson 2001: 5f.). Constitutive-defining principles Constitutive-defining principles act as “rule[s] of recognition” or “rule[s] for conclusive identification” and specify the conditions for agency (Hart 1961: 92; Onuf 1998: 181ff.). As such, they display remarkable durability over time as reflections of deeply shared actor preferences, but change owing to substantial variations in material and ideational structures. In another idiom, such principles designate chiefly who is “in” and who is “out” of a particular system (see Ashley 1984; Ruggie 1998: 187ff.; Wight 1977 on reciprocal sovereignty, or the act and power of recognition as a constitutive practice). To anticipate an example in Chapter 4, great powers in the nineteenth century shunned liberal democratic forms of government by means of the monarchical principle since such regimes were perceived to disrupt international order (being associated as they were with radical Jacobism of the French Revolution and Napoleon’s audacious campaign to vanquish the European continent). Democratic ideals of liberté, egalité, and fraternité were thought to provoke, when not constrained, the very violence that shattered the veneer of European civilization. Therefore, leaders of the Grand Coalition—England, Russia, Austria, Prussia, and eventually the restored monarchy in France—approached the problem in Vienna in 1815 with overtly conservative aims: they modified sovereignty’s rule of recognition, which made membership in the society of (European) states

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contingent on a monarchical form of government which was thought to be inherently more stable and peaceful (Grant and Temperley 1952; Kissinger 1964; Nicolson 1946; Schroeder 1994). Politically, the monarchical principle justified military interventions in democratically governed countries such as Naples and Piedmont in 1821, Spain in 1823 (Albrecht-Carrié 1958; Eyck 1972), and Bologna and Parma in 1831 (Droz 1967: 163f.), for their “revolutionary” (democratic) challenges to the European order. Other revolts and secessionist movements “that were successfully dealt with by monarchical governments in Italy, Germany, and Poland attracted little international attention” (Grant and Temperley 1952: 142)4 such as French intervention in Rome at the request of the Pope to restore obedience (1848–9), Russian intervention in Hungary, and Prussian intervention in Denmark, are underplayed in the literature (Eyck 1972). In modifying the rule for recognition, definitional principles also come to specify “the conditions of agency, and thus the disposition of sovereignty” by providing answers to specific questions (Onuf 1998: 183). For instance, in the case of suzerain and heteronomous systems, these principles clarify the nature of deference to a suzerain; the form, nature, and content of tributes and paramountcy (is paramountcy construed absolutely or is it gradated?); the form, nature, and content of responsibilities owed to a lord, and under which conditions these responsibilities are to be fulfilled; the nature and extent of overlapping jurisdiction and jurisdictional authority (including over whom, over which territories, and for how long); and the permissible reaches of authority in areas of multiple, overlapping control and jurisdiction. In state systems, constitutive-defining principles generally help us determine the agent of sovereignty by focusing on clearly articulated frameworks of authority and territoriality. On the one hand, questions of authority concern in whom and in what authority—meaning the right to make binding decisions on the polity—resides. Historically, sovereignty has been attached to the monarch, the nation, the laws, and, nominally, the people. But to reiterate a point from Chapter 2, agents who exercise sovereignty transcend political community such that the state appears both complete and exclusive, its citizens melded into one conceptual and practical bundle. Contributions of transnational actors to emendations in sovereignty norms are thus neglected or, at the very least, underplayed, in the literature. Contrariwise, a democratic conception opens research to the idea that the state and its sovereignty evolve owing to perceptions of legitimacy and understandings of the content of just political order, which suggests that sovereignty might be reconceived away from agent-centered terms and more toward the purposes for which supreme authority has been instituted: determination, realization, and defense of a common good. Thus rather than interpret sovereignty as “the final and absolute authority in political community” (Hinsley 1986: 1)—an equation that forces us to think of sovereignty in terms of territorially bounded agents

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(or who does the work of authority)—I propose thinking of sovereignty in terms of its content: ethical, common good projects tied to the mutual regard of others, or “final and absolute authority of political community.” I call this approach democratic sovereignty. The prepositional change is not a mere minor grammatical notation. Rather, it encourages us to speak of and look to acts that sustain and advance a common good, as opposed to a more traditional method of identifying the locus of sovereignty rights and prerogatives. Focusing solely on sovereignty’s agents yields a decidedly skewed portrait of sovereignty that has customarily concentrated on those nasty, brutish elements of world politics that accentuate prerogative and permissiveness as synonymous with sovereignty. The conception advanced here opens theory to the possibility of considering sovereignty’s content or the actual work of authority that has sometimes, though certainly not always, been oriented toward the sustenance and good of political community. Today, such content is tied in significant respects to the democratic values of tolerance, human rights, the rule of law, and the mutual regard of others. In this way, compliance with international norms expresses a certain form of the legitimization of sovereignty in ways that amend old ideas of sovereign prerogative sans constraints. On the other hand, questions of territoriality concern whether territory is construed as fluid—conceived, for example, as a personal matter of property, as in the early-modern period from the fifteenth through nineteenth centuries—or whether territory is restricted/essential, as in the period since the nineteenth century in which borders have ossified. Here, territoriality understood in a restricted-essential sense tends to divide (hierarchic, presumably ordered) “insides” from (anarchic, presumably disordered) “outsides.” This view contrasts with democratic sovereignty’s chief concern with the common good activities, which transgresses state borders. To illustrate, two theoretic-historical illustrations of constitutive defining principles are worth mentioning. The first is Gerrit Gong’s “standard of ‘civilization’” (1984) and the other is Stephen Krasner’s quadripartite definition of sovereignty (1999). The standard justified the imperial European practice of denying recognition to polities possessing clearly articulated frameworks of authority if they lacked what the Europeans deemed “civilized” structures and procedures. Early in its incarnation, the standard “demanded that foreigners receive treatment consistent ‘with the rule of law as understood in Western countries’” (Gong 1984: 14). (The standard echoes Kant’s third definitive article of perpetual peace (1991 [1975]).) Gradually, it evolved to include the guarantee of basic rights; clearly defined and articulated constitutional structures; respect for the rule of law domestically and internationally; and the “subjective requirement” that non-Western states conform “to the accepted norms and practices of the ‘civilized’ international society,” e.g. the eradication of such “uncivilized” practices as suttee, polygamy, and slavery (Gong 1984). As Gong notes, European powers

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inconsistently applied the standard. Historically speaking, therefore, Krasner correctly maintains: the characteristics that are associated with sovereignty—territoriality, autonomy, recognition, and control—do not provide an accurate description of the actual practices that have characterized many entities that have been conventionally viewed as sovereign states . . . There has never been some ideal time during which all, or even most, political entities conformed with all of the characteristics . . . (1999: 237f.) In many respects, then, clarification of sovereignty’s defining principles is contingent on the political will of elites. We see this today, in Donnelly’s adaptation (1998) of Gong’s standard of civilization by which the standard (if it can be said to exist at all) has been democratized and humanized in a sense, taking the form of human rights conventions and law which are inconsistently applied. Yet the two formulations operate in distinctive fashion. While Gong’s standard of civilization certainly implies regulation through legitimacy, more appropriately, it functioned as a rule of admission by defining the conditions for membership. In this respect, human rights substantially differs from Gong’s standard because it is most often not used to regulate entry itself, but rather to stipulate the grounds for membership in good standing within the society of states.5 There is at least a theoretical difference between insulating membership in a relatively homogeneous society of states from non-Christian polities with vastly different cultural and historical experiences, and regulating the behavior of members of an existing pluralistic society of states. Appropriately, human rights norms and protections should be construed as regulative principles of legitimacy. More recently, Stephen Krasner identified “bundles of principles” to get at sovereignty’s form. Not coincident with some strict ideal type, these principles have been negotiated and renegotiated as states see fit (1999: 228–37). Among those principles he counts territory (“Westphalian sovereignty”), meaning “the exclusion of external actors from domestic authority configurations”; recognition (“international legal sovereignty”), meaning the mutual recognition of states or other entities”; autonomy (“domestic sovereignty”), meaning “the organization of public authority within a state and to the level of effective control exercised by those holding authority”; and control (“interdependence sovereignty”), meaning “the ability of public authorities to control transborder movements” (ibid.: 9; cf. Jackson 1990). This quadripartite division shares with Gong’s standard of civilization the distinction of not being associated with some strict ideal type. Rather, each serves or served as a regulative benchmark against which others may be judged or evaluated (usually by more powerful polities); they are or have been negotiated, renegotiated, and applied by sovereign agents as they see fit.

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In a sometimes apt but not universally applicable idiom, Krasner argues that sovereignty is “organized hypocrisy,” meaning that states “never fully conform with the logics of appropriateness associated with their specific roles . . . [but that] they . . . engage in purely instrumental behavior generated by a logic of expected consequences” (ibid.: 5). “Logics of appropriateness understand political action as a product of rules, roles, and identities that stipulate appropriate behavior in given situations.” Alternatively, “logics of consequences see political action and outcomes, including institutions, as the product of rational calculating behavior designed to maximize a given set of unexplained preferences.” In other words, sovereignty is the province of elite preferences, not standardized, inter-subjective norms. While I do not think that reducing sovereignty to instrumentality is always or particularly helpful given the myriad of constraints to which sovereignty practices have been subjected over time, Krasner and Gong reveal sovereignty to be a historically disjunctive, yet persistent, concept. It is disjunctive owing to metamorphosing definitional content; it is persistent owing to a general, i.e. formal, set of principles associated with sovereignty over the long run. Yet Krasner understates the value of recognition and overstates domestic sovereignty as “effective control.” Varying mixtures of these yield qualitatively different, albeit non-sovereign, structures of authority. For example, the British Commonwealth includes territory, extraterritorial authority, control, and international recognition; the European Union (EU), territory, recognition, supranational authority, and “a mixture of territorial and extraterritorial control”; the Order of Malta, “recognition as a sovereign person but, for many years, no territory”; and Andorra, international legal sovereignty without autonomy. Though he explicitly denies these entities sovereign status, his categorization inadvertently suggests the conflation of non-sovereign structures with sovereign ones or at the very least a gradation of sovereignty: either states possess all principles in absolute degree, or they possess some combination of such principles in varying degrees. Consequently, Krasner admits there never was some golden age of absolute sovereignty; denying these other entities sovereign status seems entirely subjective, which is fully consistent with his conception of sovereignty as being the province of elite preference. The growth of institutions such as the EU, as well as radical changes in global exchange, production, identity, loyalty, cooperation, and accountability—none of which categorically portend the demise of sovereignty —underscore the necessity of reformulating definitions. Such contemporary realities inform Hardt and Negri’s (2000) attempt to move away from the general definitional disposition of identifying sovereignty as a rule of recognition, one used to regulate membership in the society of states. Eschewing such an approach, they propose that governments today force an anti-democratic, capitalist redefinition of sovereignty by legislating for capital and greed by which a sovereignty of state becomes a sovereignty of capital (see also Rosenberg 1994; Shaw 2000). Their eclipsing of a more

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conventional route of defining sovereignty in terms of its agents by defining sovereignty in terms of process suggests a wider research program that might be developed cognizant of contemporary global realities. Such a reformulation does not necessarily indicate a post-sovereign system of whatever imaginable sort, but does highlight the ways sovereign states adapt to varying imperatives of global political life. Crucially, by redefining attributes of sovereignty, governments (as agents of sovereign states) reestablish their integrity and potentially ensure their longevity. While this may seem, prima facie, the disposition of the third level ordering of scope, the qualitative effect of such variation on global and sub-national levels forces a re-articulation of the nature of sovereignty. Regulative principles of legitimacy Regulative principles of legitimacy coordinate sovereignty practices and thus serve as rules for engagement. In a Rawlsian idiom (1955: 24) adopted by Onuf (1989: 51f.), regulative principles of legitimacy demonstrate sovereignty acts as a practice rule that is both constitutive and regulative of international relations. Because such principles impart relatively structured directives—whether prescriptions or proscriptions—to states and, further, are enshrined in the corpus of international law, they may be thought of as constituting a normative structure of international relations by manifesting widely shared suppositions of the content of just political order, which in turn are buttressed by perceptions of justice and legitimacy (Kocs 1994). Legitimacy, following from our discussion in Chapter 2, concerns the process by which “the power and status of an actor depends on and is limited by the conditions of its recognition within a community as a whole” (Ashley 1984: 291f.). An agent secures recognition, Ashley contends, as one “capable of having power” which directly relates to the demonstration of its competence or fitness “in terms of the collective and coreflective structures (that is, the practical cognitive schemes and history of experience) by which the community confers meaning and organizes collective expectations.” Thus, legitimacy is an outcome of a social process that reflects, in the words of J. Samuel Barkin, a “capacity . . . to engender and maintain the belief that the existing political institutions (and institutional forms) are the most appropriate ones for society” (1998: 230; Barkin and Cronin 1994: 107, fn. 3). Such belief is thus contingent on performance, which parallels Ashley’s formulation. In other words, certain sovereignty practices, and hence the institution of sovereignty itself, attain legitimacy in the eyes of constituents and sovereign states if they: (1) advance the needs and interests of constituents (democratic goods, human rights); and (2) generally adhere to wider community norms and expectations. This account recalls the minimal conditions for recognition and sociality of sovereignty theses in Chapter 1.

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Some have already made a similar point. Barkin argues that perceptions of legitimacy contribute to variation in the practice of sovereignty. But he focuses on “a certain constitutional structure” required by the society of states, namely, “a certain relationship between the state and the constituency that the state is seen as governing, be that constituency territorial or societal” (Barkin 1998: 230). That is only part of my story. Likewise, this study transcends Ian Hurd’s study on legitimacy, which is limited to why states “obey the rules of nonintervention” if sovereignty is understood in reference “to the principles of nonintervention and mutual recognition that create boundaries between nominally independent states” (1999: 393). Here, I wish to underscore the idea and practice that sovereignty, whether treated domestically as the self-determined constitutional independence of political entities, or internationally as a complex legal regime bolstered in significant sense by norms of non-intervention and mutual recognition, is socially determined and regulated. Indeed, that states invoke the sanctity of sovereignty and its corollary principle of non-interference when facing international scrutiny and/or pressure testifies to the fact that certain actions lie “beyond the pale” of international acceptability (i.e. certain actions erode their legitimacy) and that norms and rules do indeed govern state behavior. In this manner, the “thing” that constitutes the state likewise modifies it, forcing us to retreat from the position that sovereignty is a “hard,” invariable fact of international political and social life. How and why do principles of regulative legitimacy arise? Historically, such principles have emerged from threats to or breaches of international peace and stability, from some persistent injustice. The religious principle of Augsburg—and its modification at Westphalia—emanated from the Protestant split with the Catholic Church and the ensuing series of bloody religious wars and clashes that followed. The Napoleonic Wars spurred the monarchical principle as a reaction to liberal-revolutionary movements, yet democratic and revolutionary spirit, repressed by the imposition of monarchy upon several states, delegitimized that norm. Slavery as an outrage on the conception of humanity prompted abolition, as the Holocaust and egregious human rights abuses compelled a universal standard for the treatment of human beings. The list continues. In each case, the crisis of oppression is met by democratic, humanistic response. While regulative principles of legitimacy reflect negotiated agreements about the content of just political order, they are largely reactive, arisen from a conception of needs that, according to Sen “relate to our ideas of the preventable nature of some deprivations and to our understanding of what can be done about them” (1999: 11). Such is the performative aspect of legitimacy: a response to human deprivations in ways we might accept or in ways we might object. Generally, those ways actors invariably oppose are disposed of in favor of ways that secure substantive freedoms and ameliorate in enduring ways such deprivations.

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For instance, the 1555 Peace of Augsburg principle of cuius regio, eius religio (“whoever’s region it is can impose their religion”) permitted sovereigns to designate the religion of their territories; those unwilling or unable to convert to the sovereign’s religion were enjoined to emigrate (Dunn 1970; Johnson 1964). In one sense—certainly one incoherent with Sen’s understanding—the Augsburg principle reflected limited understanding about how to manage particular deprivations issuing from religious conflict. Yet cuius regio, eius religio, fashioned out of a desire to quell religious enmity by separating the two major faiths, actually exacerbated religious tensions. First, Protestant princes expropriated Catholic lands without compensation; only Lutherans and Catholics were bound by the settlement, leaving Zwinglians, Calvinists, and Anabaptists, among others, to struggle for recognition. Second, the settlement tied the religion of subjects to their sovereign masters. Having recognized Augsburg’s catholic disregard for religious liberty and the casualties the policy inflicted upon the continent, delegates at Westphalia (assembled to resolve the Thirty Years’ War) opted to “facilitat[e] the development of religious toleration” at the expense of state autonomy (Krasner 1999: 82). The case of Augsburg reveals that conceptions of legitimacy (as well as our understanding of needs) evolve over time coincident with material and ideational developments, which makes possible substantive descriptive variation in both systems and regulative principles of legitimacy. Here, one might think of the English School’s differentiation between an international system and an international society. The former exists when, according to Bull, “two or more states have sufficient contact between them, and have sufficient impact on one another’s decisions, to cause them to behave—at least in some measure—as parts of a whole” (1995 [1977]: 9). Alternatively, an international society exists when “a group of states [are] conscious of certain common interests and common values . . . [and] conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions” (ibid.: 13). In their rawest form, regulative principles justify state behavior in terms of a conception of order defined minimally as “normalized” or routine behavior and, consequently, expectations associated with such behavior. I call this the thin conception of order precisely because while it does not exclude ethical, just action congruent with realizing a common good, it does not categorically require behavior be aligned with it. I break thin principles of legitimacy into two categories: inter-state, and intra-state. On the one hand, thin inter-state regulative principles refer to those “rules of the game” that ensure state and states-system durability and fitness. Examples include rules governing diplomatic exchange and regulation, treaty creation and promulgation, pacta sunt servanda, and the like. Yet as thin principles normalize and delimit the permissible range of state behavior, they invariably deepen international order and state society by providing contexts for

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interaction that permit and even encourage more enduring and robust relations between states. For the most part, I omit thin inter-state regulative principles from consideration. Thin intra-state regulative principles, on the other hand, refer to principles negotiated by states that determine and regulate in some sense state-society relations, or relations between state and their citizens. Examples include the Augsburg principle of cuius regio, eius religio, or the authority of princes to determine the religion of their territories, and the early nineteenth century monarchical principle, which made legitimate government contingent on rule by a recognized European royal family. Like Augsburg, monarchism failed. If the former exacerbated tensions between Catholics and non-Catholics (especially those not recognized), the latter justified great power interventions in democracies, and hence illuminated the extent to which behavior and form of government were subject to exogenously derived regulative principles of legitimacy. Each—the free exercise of religion and democratic forms of governments—was assumed to disrupt “normal” international order and thus was forcibly suppressed. Yet each evolved from available material and ideational conditions: Augsburg in part from papal inability to assuage the demands of sovereigns of the Lutheran faith, monarchism from the equation of liberté, egalité, and fraternité with revolution and Napoleonic aspirations of empire. Arguably, then, thin intra-state regulative principles issuing from the thin conception of order are: (1) morally illegitimate because they affirm the unbridled power of the sovereign; (2) reflective of particularistic interests that undercut common good sustaining measures; and (3) ephemeral for these reasons. On the other hand, principles of legitimacy issuing from a thick conception of order amend sovereignty practices in enduring ways because they respond to deprivations in ways that enable people to live largely selfdetermined lives. In other words, thick legitimacy principles advance a common good. Examples include the Westphalian invalidation of the Augsburg principle that affirmed religious liberty; abolition of the slave trade and slavery; democracy; human rights; bans on the sale of conflict diamonds, and the use of both children as soldiers and anti-personnel landmines; environmental protective measures; debt-forgiveness of income-poor countries; formation of an international criminal court, and the application of individual responsibility in international law. These cases show how the interplay of multiple agents can be and have been efficacious in transforming the normative basis of sovereignty through the codification of legal instruments designed to restrict and coordinate sovereignty practices at home and abroad. From this perspective, thick legitimacy principles evince a progressive redefinition of what it means to be sovereign in light of fundamental democratic assumptions about the content of a just world political order. Minimally, such principles suggest an undercurrent in sovereignty history that needs a voice in sovereignty theory. More provocatively, such principles

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indicate a change in sovereignty—a move away from agent-centered conceptions and, potentially, toward a more ethical, even democratic, conception focused on the purpose of political association, or the realization of a common good (Weinert 2007). Further, these examples manifest fundamental overlaps between state and democratic sovereignties that show their dialectical interplay in nonmutually exclusive ways. Crucially, however, the dialectical interplay between state and democratic sovereignty emphasizes just that: their interplay. Not all regulatory designs envisioned and campaigned for and by people will not always or readily be translated into regulating principles. To become embedded in the regulative corpus of “ordinary” international political life, states must adopt, defend, and advance such causes. In this way, principles of legitimacy generally arise as responses to international crises or morally repugnant practices, and are usually discernible in the language of peace treaties, UN resolutions, and other multilateral instruments that have a genuinely universal application;6 in other words, they are manifested in terms of the progressive development and codification of international and cosmopolitan law. Constructively, regulative principles of legitimacy manifest an ongoing qualitative (social) process through which sovereignty obtains content. These principles thus act as determinants and dimensions of systemic change more so, and certainly more profoundly, than “dynamic density,” meaning “the quantity, velocity, and diversity of transactions that go on within society” (Ruggie, with an assist from Durkheim, 1986: 131–57). Dynamic density is, in my account, more suited for the surface structure of third level ordering. While increases in dynamic density can thicken international and world society and thus alter descriptive reality, it has little effect on structural organization unless coupled with deeper transformations in second level ordering. Third level ordering: scope If first level ordering is the level of deep structure, and second level ordering as mid-level structure modifies deep structure, then third level ordering represents surface structure. Surface structure or scope refers to the range of functions attributed to sovereigns (individual or institutionalized) or, in Durkheimian language, dynamic density. Owing to material and ideational innovations in domestic and world politics, functions vary spatio-temporally and thus should not be taken to indicate sovereignty’s essence. As Cheyette (1970), Kriegel (1995), and Wight (1977) have shown, sovereign functions have changed (sometimes quite significantly) over time, beginning with Pope Innocent III’s 1202 decretal, Per venerabilem, that stipulated functions to be performed by the French sovereign, and which was subsequently revised by Lucca de Penna in the early fourteenth century.

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Despite the contextuality and fluidity of third level ordering, numerous, contemporary studies inordinately focus on sovereignty’s functional domain, choosing to emphasize its multifarious, onion-like nature (see Bartleson 1995; Biersteker and Weber 1996; Elkins 1995; Fowler and Bunck 1995; Guehenno 1995; Hainsworth 1995; Lapidoth 1992; Rosenau 1997). Given conditions of globalization, some even assume away, transcend, overthrow, or dispose of sovereignty and the state (see Camilleri and Falk 1992; Elshtain 1991; Heiberg 1994; Kuehls 1996; Lipschutz 1992, 1996; Martin 1996; Nordenstreng and Schiller 1992; and see also Cronin (1999: 4) and ReusSmit (1999: 159) who both assume sovereignty away). Others think sovereignty moves “upwards” to supranational political institutions, “downwards” to private, sub-national agents, or, simply, “evaporates” in the global marketplace (Anderson 2002; Strange 1994). This generates the unfortunate conclusion that because today we are witnessing significant shifts in the functional capacity of states, sovereignty must be eroding. Taking a longer view of history—one that escapes the narrow temporal boundaries of a late- and postCold War period—would provide empirical evidence of the changing levels of dynamic density or scope. In this respect, Thomson and Krasner (1989) have provided ample, convincing evidence that scope, which changes radically over time, does not translate into sovereign mortality. For instance, sovereigns did not always regulate the migration of peoples through the use of passports and identity papers. These were relatively recent additions to the corpus of state sovereign function, debuting in the late 1800s, though the use of passports did not become standard practice until after World War I (see Krasner 1993, 1999, and 1995/6; Thomson 1994; Torpey 2000). If this functional critique held, then it would decry the largely legal definition—sovereignty as designating constitutional independence and juridical equality—especially in light of what Jackson calls the “quasi-states” of Africa and Asia, or those states with “limited empirical statehood” (Jackson 1990: 21). Populations in quasi-states “do not enjoy many of the advantages traditionally associated with independent statehood . . . [Their] governments . . . [are] deficient in political will, institutional authority, and organized power to protect human rights or provide socioeconomic welfare . . . These states are primarily juridical.” Yet quasi-states—say, Haiti, the Congo, and Liberia—retain sovereign status; that is, their independence is recognized by other states despite a presumed failing in functional capacity, and they are expected to conform to their treaty obligations as well as international standards of conduct. For me, as for Thomson and Krasner (1989: 197; cf. Murphy 1996), there is no indication that “micro processes driven by changes in individual competencies” undermine “the macro structure of the international system (nation-states).” Granted, the question of whether significant quantitative changes in scope can produce a qualitative change in first level ordering is worth asking. But resting inquiry on the conflation of methodological inquiry with ontological essence is particularly weak. Considering the high degree

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of variability of certain functions we take for granted today, the basket or functional approach to sovereignty is particularly un-illuminating.7 Basket theories focus on the collection of “attributes and corresponding rights and duties,” “bundle of competencies,” or “the collection of functions exercised by a state,” and “empirically investigate the contents of each political community’s basket . . . to determine the extent of that actor’s corresponding rights and obligations” (Fowler and Bunck 1995: 70f.). Likewise, suggesting that specific functions and responsibilities attributable to sovereign entities and adopted by emerging structures of non-sovereign authority are indicative of sovereignty’s erosion is haphazard. These structures of authority are, generally, functionally specific and receive their mandate, explicitly or implicitly, from states. Specificity of functional scope, mandate, and expertise, coupled with the limitations of their organizational structures, render them unfit to replace the state. Consequently, redirecting our interest in sovereignty away from these functions and toward more salient second level ordering processes, and specifically toward how legality obtains content, yields historically more defensible and accurate sovereignty theory.

Conclusion As the constitutive principle of international relations, sovereignty has endured for several centuries. Such durability, however, does not excuse us from recognizing the importance of shifts in the meaning of sovereignty and its practices. To be sure, several scholars have begun to give this aspect of sovereignty a voice. But generally speaking, the inadequacy of sovereignty theory may be attributed to the often narrow, if not dogmatic, way scholars approach the subject. First, globalization and the dispersion of functional capacity often color the lens through which sovereignty is usually viewed, thereby obscuring wider implications of and developments in its meaning and practice. Witness the surge in studies of sovereignty when global transactions (Deutsch), dynamic density (Durkheim/Ruggie), or interaction capacity (Buzan) are thought to increase exponentially: either globalization is thought to erode sovereignty, or it has little palpable effect on the juridical reality of the state and the elite preferences that sustain it.8 This latter emphasis has led to a second problem with sovereignty theory: the inclination to locate sovereignty in a particular agent, which leads to a certain reification of autonomy and prerogative. Thus, despite the multitude of studies on sovereignty, and, most telling, the nature of the phenomenon to which these debates respond, sovereignty still eludes us. Consequently, we might conclude that we ask the wrong questions, ones that are for the most part motivated by faddish pretenses. It is no wonder that we “speak past one another” and that theoretical work fails to bring us closer to a more substantial understanding of the constitutive principle of international relations (Caporaso 2000: 3).

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Of course, theoretical orientations determine on which side of the divide a scholar may lay. Neorealists, neoliberal institutionalists, and systemic social constructivists9—in essence, mainstream IR theory—take the primacy of the state as their starting point and therefore are more apt not to problematize sovereignty. For them, political authority is understood in formal and equalizing terms, which generates the condition of anarchy in which putative equals recognize no superior to mediate disputes and quell conflicts. Systemic theories, then (with the exception of systemic social constructivism), tend to underemphasize the effect of “systemic density” and thereby, “paradoxically, suggest [sic] that systemic factors may not be very important relative to unit level ones in the first place” (Wendt 1999: 130), thus calling into question their integrity and explanatory capability. Others overemphasize “systemic density,” and find theoretical and practical import in emphasizing the multifarious, onion-like layered nature of (a functionally understood) sovereignty and its erosion, peeling, or chipping away by global forces. Sovereignty qua basket may accentuate de facto limitations placed on less (economically, militarily) powerful and, consequently, less influential states, but holds little value in explaining how the structure of sovereignty persists. If basket theorists are correct, then logically we ought to expect a decrease in the overall number of states since many are simply unable to cope with their own internal problems or provide basic resources to their populations. However, history belies this approach (one we may felicitously call natural selection), thus casting skepticism upon the basket approach. Emphasis on the (sometimes truncated) functions and rights of sovereigns and the purely quantitative power of states occludes any meaningful understanding of sovereignty situated in the larger dynamic of international society. Thinking in terms of ordering as I have done here may strike some as rigid and mechanistic, as reading or imposing too much order where there might actually be little or none. Figure 3.1 permits us to interpret events surrounding sovereignty in a historically minded fashion and to chart the (normative) development of an international society. Here, Jack Donnelly urges the theorist to “link expressions of values with concrete political practices” (Donnelly 2000a: 18). Thinking of sovereignty in terms of this model will allow us to do exactly that by providing a context for future discussion about and research of sovereignty. Chiefly, it centers on the regulative principle of legitimacy, which modifies the polarizing effects of anarchy by inserting suppositions of the content of just political order into the international system. As a political concept, sovereignty is tied to political community’s expression of the content of just political order. In an important sense, because regulative principles of legitimacy link performance with perception, they act as a “generative grammar,” by which Ruggie means “the underlying principles of order and meaning that shape the manner of [a thing’s] formation and transformation” (1998: 63). In other words, such principles help

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us articulate the normative grounds of international transformation. By prohibiting and prescribing particular conduct, principles of legitimacy fuse material power with conceptions of social purpose and just political order predicated on shared values. This then provides ground upon which possible future orders may be constructed, and applies the idea of architectonic impulses, or attempts “to mould the totality of political phenomena to accord with some vision of the Good that lies outside the political order” to sovereignty. Visions of the Good correspond to certain conceptual orderings of the political universe, or ideas of (how to fashion) a just political (world) order. Importantly, architectonic impulses are not exogenous; that is, they are not derivative from Natural Law, divinity, or Mars. Rather, I understand by the phrase “outside the political order” conceptions of the Good that are not institutionalized within existing political arrangements. Visions of the Good (as expressions of the content of just political order) thus inform perceptions of legitimacy, which call to account both domestic and international sovereignty practices. But rather than bracket out transnational associations and social agents, thus denying causal linkages between (transnational) non-state agents and international (and domestic) change, or construe transnational relationships and practices as undermining, eroding, or disaggregating the state and sovereignty, the model of sovereignty presented here weaves, through the guise of the regulative principle of legitimacy, the work of non-state actors and their suppositions of the content of just political order into a theory of sovereignty. There need be no pressing choice between an international society of states and a stateless, cosmopolitan world order, especially considering sovereignty’s persistence. As a legal concept, sovereignty enshrines ideas of the content of just political order in a normative, public legal order, which is why Cohen can remark that “it is the rules of international law that tell us in what sovereignty consists” (2004: 15). Principles of regulative legitimacy thereby make clear a progressive element in international relations too easily dismissed by neorealists and neoliberals, and underdeveloped by constructivists. By constructing a model of sovereignty in large measure centered on legitimacy, our attention focuses not simply on sovereignty but on larger questions of global governance, normative evolution, and intra- and intersystemic change. Congruent with Ruggie’s preoccupation with global transformation, the model indicates (normative) grounds upon which the contours of intersystemic change may be extrapolated. Constitutive-defining principles, coupled with second level principles of regulative legitimacy and changes in third level order seem to supersede the explanatory capability of property as a determinant or even dimension of systemic change. While Burch (1998), Kratochwil (1995), Ruggie (1986), and Teschke (1998) are correct in theorizing property as affecting systemic-wide changes in social, economic, and political relations, they miss the fundamental insights of universal normative assertions and, though only briefly ascertained, dynamics

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in metamorphosing definitions as precipitating whole-scale systemic changes. As presented here, sovereignty moves consistently, though not linearly and uninterruptedly, away from an absolutist ideal-type, from its equation with state prerogative and unbridled autonomy. Systems and structure are not privileged; rather, human agents are in such a way as to enable them to take back the state coincident with conceptions of just political order. When enshrined in regulative principles of legitimacy, such conceptions or visions of the Good reveal that the “thing” (sovereignty) that constitutes the state likewise modifies it and its behavior, forcing us to retreat from the position that sovereignty is a “hard,” invariable fact of international political and social life.

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Part II

Democratic sovereignty History

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Early history

Introduction Thinking of restraints on the sovereign state is not anomalous. Just war doctrine has, since roughly Aquinas, limited the actions of belligerents (Kretzmann et al. 1982: 771–84; Nardin 1996; Shue 1997: 342f.). Henry Shue contends such constraints are “understood to be principled in being external to the political units . . . and exist independently of judgments made about their meaning by the individual units . . . That is, the principles were genuine limits with an internationally shared meaning” (1997: 342). Michael Walzer traces a similar path, arguing that “normative as well as strategic concepts, ‘massacre’ as well as ‘retreat,’ have established meanings that cannot be changed simply by, say, issuing an announcement at a televised briefing” (ibid.: 343; see also Walzer 1992 [1977]: 14). Walzer gets at an important point: just war doctrine highlights certain morally objective facts such as the goods of life, liberty, and the diversity of ways of life that in the end stimulate judgments about war’s causes, initiators, strategies, and consequences (incontrovertibility of life thesis No. 5). However, Walzer undercuts the nature of such objective ethical judgments by musing that perhaps we in the West “have invented them” (1992 [1977]: 54). If life and liberty are valued intrinsically and independently of political doctrine, and ought not be extinguished, then they cannot be dismissed as features of cultural relativism. A language and logic of regulative principles of legitimacy exposes the necessity of conceiving broader ethical communities based on certain goods that transcend state borders (the sociality of sovereignty and sovereignty for a common good theses). The framework provided in Chapter 3 is both a product of thinking about the state and sovereignty, and is productive in two ways. First, it gives us locations in and from which to understand events in the international arena and how, if at all, they affect sovereignty. While I do not pretend the powerful have not had a commanding effect on sovereignty, I try to give voice here to previously under-represented legitimizations undertaken through protest and legal process. Second, Figure 3.1 underscores an essential process of regulation in infrequent, but no less considerable episodes. By working into a theory of sovereignty historical

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changes of a particular sort, the theory neither ossifies a legalist approach (which defines sovereignty as an absolute right of determination); nor operationalizes its meaning consistent with functional differentiation and scope; nor, further still, links sovereignty solely to the political interests of the powerful and elite. The model, moreover, provides a framework in which to place other constitutive principles, namely suzerainty and heteronomy, and chart reasons for and locations of historical systemic change. Such an investigation is beyond the scope of this study however. While the approach adopted here underscores sovereignty’s enduring, legal character, it remains open to the possibility of change. In more progressive language, it makes possible evolutionary learning in world politics. In this manner, my study answers in the affirmative to Modelski’s titular question, “Is World Politics Evolutionary Learning?” (1990) and provides another dimension to his response. I take up the issue in Chapter 6. Here, I break with critical scholarship that problematizes sovereignty. True, sovereignty changes over time. Yet, contra postmodernism and some versions of critical theory, Democratic Sovereignty “stabilizes” sovereignty as indicating in some significant sense supreme authority for and about a common good, and thus locates it within the ongoing, progressive struggle for democratic goods, human rights, and the extension of freedom. At the same time, I do not pretend that this bifurcation (one entailing both the stabilization of sovereignty’s meaning as well as its metamorphosis) thwarts innovative, significant scholarship. If sovereignty denotes “a state of being— an ontological status,” I see no reason why the continuity/change dichotomy cannot help us produce a “thicker” understanding of sovereignty (Weber 1993: 3). Ontology in the end involves being and doing, durability (a foundation), an ongoing process of regulation, and the expansion and contraction of scope or functional responsibility. The remainder of this chapter focuses on explaining the emergence of a regulatory logic (a logic of legitimization) that moves beyond ostensible systemic regularities of power maximization, relative gains seeking, and the “pushing” and “shoving” of like units engaged in a life and death struggle. By introducing normative elements into the equation, the logic of regulation reveals intra-systemic sources of transformation. I begin with religion and Augsburg. In this section, I return to the ordering argument (see p. 23) introduced in Chapter 1’s section entitled “Origins.” Here, I explain how Augsburg introduced such a logic in the international system predicated on particular assumptions about the content of a just world (read: European) order. The chapter then considers the nineteenth century monarchical principle and the anti-slave trade movement. In the “slave trade abolition” subsection, I am concerned only with clarifying the confluence of hegemony and moral leadership for a common good. Because of the voluminous expanse of literature on abolition of slavery, I focus solely on slave trading. In the monarchical principle subsection, I concentrate my remarks

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on extension of this regulatory logic in the guise of specifying the conditions of sovereign agency linked to internal structures of government. Finally, these case studies are necessarily brief for my goals are specific: first, to identify the central agents of change; second, to uncover ideas about the content of just political order; and third, to assess the actualization of these ideas.

Religious liberty Religion proved to be an intractable problem that, one might say, transcended the fictive certitude of distinct domestic and international spaces. Prima facie a matter of individual preference, religion contributed in part to the French civil wars of 1562–98; the (Calvinist) rebellion in the United Provinces of the Netherlands against (Catholic) Spanish rule beginning with a declaration of independence in 1581; the (Calvinist) Scottish revolt against (Catholic) England; the Thirty Years’ War (1618–48); England’s Puritan Revolution (1640–60); and, generally, Protestant uprisings throughout central and eastern Europe (Dunn 1970; Sutherland 1992; and Zagorin 2003). During the period from 1526 to 1648, various settlements, including Spires (1526 and 1529), Augsburg (1530 and 1555), Cateau-Cambrésis (1559), and Nantes (1589) attempted to end religious-based hostilities but failed. The 1648 Peace of Westphalia, an amalgamation of three separate treaties including Münster (negotiated between Spain and the Netherlands), Osnabrück (between Sweden and the Holy Roman Emperor), and Westphalia (between France and the Holy Roman Empire), concluded the last and most continental of the religious wars. What, then, did Westphalia offer that the others did not? Earlier in Chapter 1 we considered two possible arguments as to why scholars celebrate Westphalia as a political renaissance or a massive rupture between a religious-based, hierarchical medieval order and a secular, sovereignty-based modern order. We’ve already demonstrated how the functional and recognition arguments presuppose that which they are said to introduce. To recall, the third, ordering argument contends Westphalia was Europe’s first comprehensive political settlement (Bussmann and Schilling 1999; Gross 1948; Philpott 2001). In a sense, by granting sovereignty to various new agents, Westphalia provided a blueprint for recognizing the sovereignty of new, non-Catholic agents, which thereby disaggregated state institutional from from distinctively Catholic identity. Westphalia’s import lies not so much as a rupture between historical periods, but rather in that it underscores the fact that regulating autonomous sovereignty practices is necessary for the effective functioning of the international system. Though without government, the system is not without forms of governance. If this regulatory logic is Westphalia’s true significance, then it is also true that the logic pre-existed 1648. Article 28 provides a crucial clue:

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Democratic sovereignty: history [T]hose of the Confession of Augsburg, and particularly the inhabitants of Oppenheim, shall be put in possession again of their Churches, and Ecclesiastical Estates, as they were in the Year 1624, as also that all others of the said Confession of Augsburg, who shall demand it, shall have the free exercise of their religion, as well in public Churches at the appointed hours, as in private in their own houses, or in others for this purpose by their ministers, or by those of their neighbors, preaching the Word of God. (emphasis added)

We may infer that the language of toleration and individual religious liberty extended here reverses a previous logic enshrined in the 1555 Confession of Augsburg. If Westphalia finally “succeeded” in extending religious liberty to all (Christian) peoples of Europe and ending the religious-based wars that plagued the continent, then Augsburg could be construed as a nascent attempt to regulate the states-system by conceding to princes the authority to determine the religion of subjects living in territories under their authority and control. Cuius regio, eius religio, which actually made its appearance at the 1526 Diet of Spires, endeavored to mediate disputes between Catholics and Lutherans over, in so many words, recognition and equal membership in the system. While the Diet made clear “that Germany was not to belong exclusively to the Lutherans,” it essentially endorsed religious-based territorial division, leaving unmolested Lutheran princes among their Catholic counterparts. Further, the Diet permitted the coexistence or intermingling of faiths in several imperial cities in which they lived peaceably (Krasner 1999: 79). Both the (anti-Calvinist, pro-Catholic, yet Lutheran) Elector of Saxony and Philip of Hesse thus proceeded to establish their Lutheran churches, and to appropriate monastic property . . . a policy soon followed by others, especially by Albert of Prussia, who, in 1525, had already secularised the estates of the Teutonic knights, and converted his mastership into a dukedom. (Johnson 1964: 197) Augsburg went farther. Subjects unable or unwilling to conform to the prince’s edicts were enjoined to emigrate. The settlement also reversed the Diet’s decision to leave unmolested those cities in which diverse faiths coexisted, compelling their separation to thwart the potential of clashes between them. By the provisions of Article 15—“let [the Electors and Princes] enjoy their religious belief, liturgy and ceremonies as well as their estates and other rights and privileges in peace”—cuius regio, eius religio revolutionized inter-state relations by awarding “territorial independence in Church as well as State” (ibid.: 166). While technically excluding Calvinists and Anabaptists under Article 17—“all such as do not belong to the two above named religions [Catholicism and Lutheranism] shall not be included in

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the present peace but be totally excluded from it”—the net effect of the settlement was to recognize their de facto territorial claims such that, for example, the leadership of the Calvinist Palatinate could continue to advocate for extension of liberty for Protestants in Catholic territories (Sutherland 1992: 603). For reasons of property ownership and personal liberty, though, Augsburg could not stand. Protestants continued to appropriate ecclesiastical land— a fact that raised the ire of the Church, which, by 1609, demanded “the ‘restitution’ of all ecclesiastical lands secularized since 1555” (ibid.). While extending what may be called a loose policy of toleration to Princes [sovereigns], the settlement negated any semblance of personal religious liberty by tying the religion of subjects to their masters. Despite the edict, several authorities including Ferdinand I, the Austrian Hapsburg (Catholic) king, promised “in a secret agreement . . . that Lutheran nobles and townspeople living in ecclesiastical [Catholic] territories could continue to practice their faith” (Krasner 1999: 79). The Elector Otto-Heinrich, who had led the Protestants at Augsburg, continued to insist upon complete religious liberty for all (Sutherland 1992: 604). Their internal policies of toleration toward religious minorities crucially extended the toleration implied by earlier Catholic recognition of Protestant princes. Provisions enjoining migration may have been feasible in a region such as Germany, territorially and religiously disjointed. But forced emigration set off a series of disputes between the Dutch Calvinists and their masters, the Spanish (Hapsburg) Catholics. Though the agreement did not apply to France, the king employed the logic of cuius regio, eius religio by enforcing Catholicism in those (Protestant) regions ceded to him by Augsburg. But migration was impracticable in France since Protestants were confined within a very large contiguous, Catholic territory. A succession of “feeble and neurotic” kings (Francis II, Charles IX, and Henry III) failed to quell both the spread of Calvinism and growing anarchy in France. Huguenots (French Protestants), through a “well organized . . . network of congregations” throughout France, but concentrated primarily in the “autonomous fringe provinces” of Dauphiné, Languedoc, Gascony, Poitou, Brittany, and Normandy, launched several devastating attacks against Catholic churches and “challenged the power and profit of the crown” (ibid.). Such brazen attacks, consequently, earned them the support of the nobility who favored decentralized authority (Dunn 1970: 23f.), illustrating just how intimately entangled were the struggle for religious liberty and demands for more decentralized, if not constitutional, structures of government. The Huguenot-nobility alliance soon clamored for an arrangement in France similar to that of Augsburg, “with each nobleman controlling the Church in his own lands” (ibid.: 24). Out of concern for peace, the nominally Catholic prince-turned-king, Henry IV (the former Calvinist Henry of Navarre) extended to Huguenots civil rights with the 1598 Edict of Nantes (Toulmin 1990: 48ff.).1 But the Catholic League

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resisted,2 assassinated Henry in 1610—he did, after all, also expel the Jesuits and “repudiated the fanaticism of the ultra-Catholic League” (Dunn 1970: 31)—and began a brutal campaign to suppress the Protestants. Elsewhere on the continent, the Protestant Dutch revolted against Catholic Spanish despotism; England’s Elizabeth I succeeded in peaceably mitigating religious division by reorganizing the Church of England which combined “an external Catholic structure with a broadly Protestant dogma,” and ending “heresy-hunting” and the Inquisition (Sutherland 1992: 598);3 and Catholics, Lutherans, Zwinglians, Calvinists, and Anabaptists warred throughout central and eastern Europe. Finally, in 1618, the religious problem erupted in Bohemia after the “rabid Catholic” Ferdinand of Styria, “heir apparent” to the Holy Roman imperial throne, was crowned king of Bohemia in 1617 and immediately rescinded “the religious toleration guaranteed to the Bohemian Protestants by his cousin, Rudolf II, in 1609” (Dunn 1970: 70). Sparking fears of renewed Catholic domination of Europe under the Spanish Hapsburgs, which the English, French, Swedes, Dutch, and most German Protestants abhorred, the unexpected death of the Holy Roman Emperor, Matthias, on 19 March 1619, provoked a Protestant rebellion in Germany to prevent Ferdinand’s accession to the throne; invited Spanish intervention to quell the revolts; and forced France, and, eventually, other European powers into the conflict (Sutherland 1992: 607–18). The result: “the most devastating European conflict after the barbarian invasion . . . and practically the last of the religious wars”—the Thirty Years’ War (Nussbaum 1962: 116). Having recognized Augsburg’s catholic disregard for religious liberty and the casualties the policy inflicted upon the continent, delegates at Westphalia (assembled to resolve the war) opted to “facilitat[e] the development of religious toleration” at the expense of state autonomy (Krasner 1999: 82). Given Westphalia’s corrective of Augsburgian (sovereign) autonomy, consecrating as it were the principle of toleration, doesn’t the overriding emphasis on Westphalia as the source of a new political order somehow collapse? According to Krasner, “Augsburg was more consistent with Westphalian principles than the Peace of Westphalia itself ” (ibid.: 79),4 if we understand those principles to encompass “territoriality and the exclusion of external actors from domestic authority structures” (Barkin 1998: 20). To be sure, Augsburg insulated domestic authority structures and relations from the claims and interrogation of like authorities. Consequently, Augsburg reified absolute authority as a practical condition of sovereignty. Westphalia, in contradistinction, invited “external scrutiny of domestic policies and practices” and thus was an agreement of a qualitatively different sort (Krasner 1999: 77). If anything, Westphalia began to transform an instrumental international system into an international society, embedding the logic that the states-system, to survive and operate effectively, needed regulation. While some may vilify Augsburg for denying religious liberty and, moreover, decreeing forced migrations, I think it important to emphasize the fact

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that the determination of the religion of subjects, and territorial division on that basis, was not a right ascribed to rulers for the sake of absolutism and despotism. Rather, this right was propagated out of certain ordering assumptions about achieving civic peace and tranquility—Article 15’s express message (Augsburg 1555)—which we may infer as emanating from the desire to eliminate the potential of wars fought over religious identity. By adopting cuius regio, eius religio and the policy of strict separation, state leaders assumed they could circumvent religious-based or inspired warfare (Creppell 2003; Weinert 2004; and Zagorin 2003). The remedy just as much as the cause was deemed exogenous—that is, linked to the system of states—rather than endogenous—that is, linked to state policies toward religion and concern for individual rights. Its failure and subsequent amendment suggests that, contra Krasner, regulations on sovereign absolutism or autonomy are necessary. Indeed, the logic is embedded in Westphalia’s Article 123, which obliges all parties “to defend and protect all and every Article of this Peace against any one, without distinction of Religion” and, should any provision “be violated, the Offended shall before all things exhort the Offender not to come to any Hostility, submitting the Cause to a friendly Composition, or the ordinary Proceedings of Justice.” If the article mandates the creation of an international, quasi-judicial system, one that remarkably furthers the logic of regulation, then Article 124 goes further by mandating what we might call interventions for the common good by means of a collective security system: Nevertheless, if for the space of three years the Difference cannot be terminated by any of those means, all and every one of those concern’d in this Transaction shall be oblig’d to join the injur’d Party, and assist him with Counsel and Force to repel the Injury, being first advertis’d by the injur’d that gentle Means and Justice prevail’d nothing; but without prejudice, nevertheless, to every one’s Jurisdiction, and the Administration of Justice conformable to the Laws of each Prince and State: and it shall not be permitted to any State of the Empire to pursue his Right by Force and Arms; but if any difference has happen’d or happens for the future, every one shall try the means of ordinary Justice, and the Contravener shall be regarded as an Infringer of the Peace. That which has been determin’d by Sentence of the Judge, shall be put in execution, without distinction of Condition, as the Laws of the Empire enjoin touching the Execution of Arrests and Sentences. The so-called paradox of a global order that underlines both sovereign equality and human rights appears, now, as neither a paradox nor a distinctly contemporary problem. Westphalia successfully linked the development of state sovereignty to the articulation of a broader set of human values that in many respects restates and elaborates what we called in Chapter 2

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sovereignty’s subjective condition.5 To recall, that condition recognizes that, while the state (as an imposing, objective force) “may be a necessary condition” of sovereignty, it is not a sufficient condition of it. What seems to have been further required before men have advanced this explanation of the basis of rule is that they have ceased . . . to regard the state as alien to the society and to have begun [sic] to identify the claims of the state with the needs of the community. (Hinsley 1986: 18) If Augsburg constituted a system bolstered by an inchoate logic of order, then Westphalia translated the logic and, consequently, began to transform the system into a community or society of states. Westphalia’s constitutive import lies not in affirming an unbounded logic of autonomy but in legitimizing the supreme authority of a wider (budding cosmopolitan) political community underlined by a (limited) normative conception of human values. Articles 123 and 124 adjudged the state not as ultimate, final, and absolute authority, but linked the state as principal expression of localized political communities to a regulative international legal order. The content of sovereignty, in other words, is contingent on the development of the legal order within which the state is situated, on the adjudication of functions brought to light in contestations between state power and human values. We might say this process of adjudication and “positivization” of behavioral prescription and proscription constitutes the materialization of sovereignty’s subjective condition in ways Hinsley did not imagine. That this regulatory, legitimizing, ordering logic was embedded in the system may be supported by invocation of later agreements. For instance, Article 16 of the Final Act of the Congress of Vienna of 9 June 1815 stipulates: the difference between the Christian religions should cause no difference in the enjoyment by their adherents of civil and political rights, and, furthermore, that the German Diet should consider the grant of civil rights to Jews on condition that they assume all civic duties incumbent on other citizens. (Gross 1948: 22f.) Gross adds “by the time the [1878] Congress of Berlin convened the principle of religious toleration had become so firmly established” that delegates could write “it is important to take advantage of this solemn opportunity to cause the principles of religious liberty to be affirmed by the representatives of Europe.” Moreover, M. Clemenceau, the President of the Conference, could argue:

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Serbia, who claims to enter the European family on the same basis as other states, must previously recognize the principles which are the basis of social organization in all states of Europe and accept them as a necessary condition of the favor which she asks for. (quoted in ibid.: 23, emphasis added) The occasional reiteration of the norm of religious liberty illustrates how deeply entrenched it is in the collective psyche of international relations. In the words of Stephen Krasner: [i]t emerged out of a mutual recognition that religious disputes were so volatile that they could completely undermine political stability . . . and reinforced by the principled argument that true religious belief could not be coerced but had to be voluntarily accepted. (1999: 84)

Slave trade abolition Regulation may stem from a logic of order tied to maintaining the status quo, as we saw with Augsburg, or from a logic of order contingent on humanitarianism, as with slave trade abolition. If earlier historians claimed that (British) abolition of the slave trade resulted from the interplay of economic factors (Klingberg 1926; Williams 1944), later scholars underscored the extent to which morals and norms—not to mention considerable popular pressure—play a key role in British decision-making (Anstey 1975; Davis 1966; Murray 1980; Reich 1968; Temperley 1980: 338f.). True, Britain possessed the world’s largest and most powerful navy to enforce the ban, which gives credence to the view that sometimes the creation of what Nadelmann (1990; cf. Thomson 1992) calls a global prohibition regime depends on a hegemon, or a state materially powerful enough to enforce its will against common practice and desire. (Recall Bodin’s argument against slavery in Chapter 1 on pp. 37–8.) But hegemony alone does not explain Britain’s missionary zeal in enforcement. Even Stephen Krasner admits as much: “For largely ideational rather than material reasons, Britain in the nineteenth century committed itself to end the practice of slavery” (1999: 107). In this section, I concentrate on the abolition of the slave trade and not on abolition of the wider practice of slavery. The expanse of the literature on the latter alone requires that the task at hand be carefully circumscribed. Given the nature of our inquiry—to illustrate particular examples of regulative principles of legitimacy—our focus must be sufficiently precise. Further, save for pre-French Revolutionary abolitionist efforts, the bulk of pre-1833 arguments were generally directed toward the termination of the slave trade, not the abolition of slavery. Only upon what abolitionist leader James Stephen called the “radical and well-principled

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reformation” effected by the 1807 passage of the “Resolution for Abolishing the Slave Trade” in the British Houses of Parliament could further measures be pursued (Murray 1980: 26). I thus limit my focus to the role ideal or moral argument played in the British decision and trace the issue to the Congress of Vienna, at which the issue of abolition truly became internationalized. In the mid-eighteenth century, English and American Quakers openly challenged slave owning and slave trading practices, contemporaneously with secular French reformers. Hugh Thomas’ magisterial The Slave Trade provides a remarkably thorough account of these Quaker stirrings (1997: Book Five), which I think appropriate to summarize here. In 1641, the Massachusetts Body of Liberties decreed “there shall never be any BondSlavery, Villeinage, or Captivity amongst us, unless it be lawful captives taken in just wars and such strangers as willingly sell themselves or are sold to us . . .” William Edmundson, founder of the Rhode Island Quaker Society, “put forward the theory [in 1676] that slavery should be unacceptable to a Christian . . . [since] it was ‘an oppression on the mind.’” In 1688, a group of Quakers in Germantown (later renamed Philadelphia) “signed a petition against the idea of slavery, not just the trade,” and in 1696 and 1711, “at the society’s annual [Philadelphia] meetings, ‘advice’ was given to guard against future imports of Africans, and instruction to ensure good treatment of those already bought.” A 1716 Massachusetts Quaker tract maintained “slaves had a perfect right to liberty, and so might resort to armed rebellion.” But the Quakers did not formally adopt an anti-slave trade and slave holding position until 1754, deeming both practices to be “inconsistent with both Christianity and common justice.” London Quakers followed the “American” lead four years later, and condemned “both slavery and ‘the iniquitous practice of dealing in Negro and other slaves’ ” (ibid.: at 451, 456, 457, and 458, respectively). That this “odious commerce” (Murray 1980)—the trading of slaves— even registered politically was remarkable: since slave trading countries profited handsomely, eradication of this “industry” would but negatively affect national wealth. To this end, Harold Nicolson (1961: 296) notes that the 1833 abolition of slavery itself cost British taxpayers £20 million, in addition to one-time payments of £1.2 million to Spain, and another £300,000 to Portugal as incentives to abolish their slave trades. Further, Britain paid an economically depressed Spain a generous annual subsidy in exchange for its agreement to end its monopoly on slave trading (Murray 1980: 215; see also Reich 1968; and, from a legal perspective, Wilson 1950). From 1760 onwards, English and American Quakers, evangelical Protestants, and the French abolitionist society, Amis des Noirs, pressed for an end to the repulsive practices of slavery and slave trading. Each represented a distinct approach to the anti-slavery movement: an “AngloAmerican” and a “Continental” model. While the first had relatively broad

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appeal and found its roots in particular religious sects, each with its own established community of believers, the second was generally confined to “a very small political or cultural elite” and concentrated on “plans of abolition submitted to government” (Drescher 1980: 49f., 43f.; on the Quakers’ Anglo-American dialogue, see Anstey 1975: ch. 9; Anstey 1980: 21, 23f.; Murray 1980: 133f.; Walvin 1980: 150f.). In 1787, with at least implicit Parliamentary consent, British Prime Minister William Pitt instructed William Eden, Minister in Paris and Minister-elect to Madrid, to seek accord with Spain if he saw “any chance of success [of slave trade abolition] in France” (quoted in Murray 1980: 22). Leading abolitionists realized early in the struggle that for abolition to be effective, it had to be universal. If international cooperation could be secured, abolitionist leaders thought it would “undermine the domestic opposition argument that Britain’s maritime rivals would be the chief beneficiaries of a British abolition” (ibid.). For a moment, abolitionist leaders in Britain gleaned hope from events in Saint Domingue (Haiti) and Paris for a growing international consensus around eradicating the slave trade. In 1793, Touissant L’Ouverture led a successful slave revolt against the French and established the independent state of Haiti. Revolutionary French democrats outlawed slavery in 1794; afterwards, French commitment to the movement waned precipitously (on French abolitionism, see Drescher 1980; Daget 1980). British abolitionist James Stephen reacted with evangelical praise for the French revolutionaries, claiming that “the eye of the Almighty was over them [the European colonial powers], and to avenge devoted Africa at least, if not to save her, he dropped down among them the French Revolution” (quoted in ibid.: 23). Provocatively, Stephen intimated all colonial powers needed a democratic revolution on the scale of France’s. Yet London’s conservative reaction to the Revolution propelled abolitionism backwards, if temporarily. Parliamentary leaders began to embrace the idea of abolishing the slave trade, but regrettably retreated from what they began to see as a revolutionary, and, incidentally, destabilizing reform of the system. Abolition’s cousin was none other than radical French Jacobinism. Following Haitian independence, the House of Lords erupted in anti-democratic hostility, and rejected working-class generated petitions that called upon Britain to outlaw slavery on the grounds that these efforts by “plebian corresponding societies” mirrored French “popular radicalism” (Walvin 1980: 152). Given the violence and “destruction” of the Saint Domingue revolt, how could Britain be justified in assenting to freedom and liberty if violence was the inevitable result? The Earl of Abingdon, House of Lords anti-abolitionist leader, addressed Parliament: For in the very definition of the terms themselves, as descriptive of the thing, what does the abolition of the slave trade mean more or less in effect, than liberty and equality? What more or less than the rights of

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Developments in post-revolutionary France mirrored the aristocratic British view: Napoleon Bonaparte unceremoniously bestowed upon France the dubious distinction of restoring slavery and the slave trade in 1802, excluding the now-independent Haiti. After the upheaval caused by the French Revolution, British slave trade abolition discourse soon reappeared in political debate, but not without fervent opposition (Harrison 1980). Popular sentiment favored abolition; on one account, the numbers were unprecedented, with an estimated 60,000–100,000 petition signatures in 1788, and 380,000–400,000 in 1792 (d’Anjou 1996: 166). Shortly before the Congress of Vienna, Britain “at first made the return of France’s colonies conditional upon immediate and total abolition of the French slave trade.” For political reasons, Britain acquiesced to France’s demand that, for economic viability reasons, she be allowed to replenish her labor supply in the Caribbean colonies. In exchange, Britain secured “a French promise of abolition in five years and a promise to support to British abolitionist campaign at the forthcoming” Vienna Congress. Consequently, an “avalanche of petitions descended upon both houses of Parliament . . . express[ing] regret at the supineness of the government during the negotiations with France and demanded that the slave trade be declared piracy at the end of five years” (Reich 1968: 130f.). Despite such popular aversion to slave trading, battle for the passage of legislation was fierce since British prosperity depended, in part, on the slave trade. Having secured the asiento or contractual right to obtain slaves in Africa for Spain in the 1713 Treaty of Utrecht,6 Britain reaped tremendous economic benefits from its monopoly. Yet even after renunciation of the monopoly in 1750, Britain continued to enjoy substantial benefits. Indeed, Britain exported more slaves and earned higher profits from 1791–1800 than in any other decade between 1760 and 1807 (Anstey 1975: 6; Murray 1980: 14). Seymour Drescher substantiates the data: over the whole period from 1783–1807, the British slave system enlarged its frontier, its supply of virgin soil, its relative proportion of British trade, its imports and exports, its share of world sugar and coffee production . . . and the slave trade was, of course, a major ingredient in the continuing expansion of the slave system . . . Abolitionism came not on the heels of trends adverse to slavery but in the face of propitious ones. (cited in Anstey 1980: 23, emphasis added) As in France, those profiting from this “odious commerce” refused to relinquish the trade in favor of abstract justice. Methods to secure support

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of an abolition bill—even a limited one targeting the slave trade—had to change. After two successive Parliamentary defeats in 1789 and 1804, abolitionist leader William Wilberforce and his aide James Stephen7 supplemented moral and humanitarian arguments with “specific, but limited [language] . . . which could be justified on the grounds of the national interest” (Murray 1980: 24). They had not abandoned morality. But they recognized that if they were to advance the cause of abolition, they had to speak in the language of state goods, in short, in the idiom of capitalism. Wilberforce, in a 25 August 1800 letter to Stephen, argued against importing slavery into the newly acquired Caribbean colonies seized by Britain from France at the beginning of the Napoleonic Wars. He pressed “on those unassailable by higher principles, that the British ought not to invest much capital in colonies, which may probably have to be surrendered on the return of peace” (quoted in Anstey 1975: 333). The “peace” to be had refers to the 1802 Treaty of Amiens signed by Britain, France, Spain, and the Netherlands (also known as the Batavian Republic), which secured fourteen months of peace during the Napoleonic Wars, and under which Britain was obliged to return those territories she had seized. Wilberforce and other abolitionists ardently believed that “other nations would follow Britain’s lead if only London would set the example” (quoted in Murray 1980: 22). House of Commons Member of Parliament Henry Brougham, in a resounding 1803 address to Parliament, admitted collective guilt and reiterated Wilberforce’s reasoning of moral leadership by example. “We,” he declared in an implication of all Britons, have been the chief traders, I mean, the ringleaders in the crime. Let us be the first to repent, and set an example of reformation . . . No great reform has ever taken place in one part of the international and intercolonial systems, without a similar change being soon effected in all the other parts. (quoted in ibid., emphasis added) Stephen echoed Brougham’s sentiments: In the wonderful events and coincidences which have planted, fostered, and defended the liberty of St Domingo, I seem to see that hand by which the fates of men and nations are directed. I seem to see it, in that strange train of public evils which, since the first blaze of light revealed the full guilt of the Slave Trade, and since we rejected the loud call for reformation, have chastised our national obduracy. I seem to see it, in the dark clouds which now menace the domestic security, the idolized wealth, the happiness, and even the liberty and independency, of my country. (quoted in ibid.: 334, fn. 6)

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The theme struck a chord, and was echoed in subsequent anti-slave trading arguments. Lord Castlereagh, British representative at the Congress of Vienna, first thought the abolitionists to be “left-wing agitators or sentimental idealists” (Nicolson 1961: 211). The more he studied the subject, however, the more convinced he became “that the trade was in truth a terrible evil, and that it was the duty of Great Britain to use her moral influence, her wealth and her maritime power to secure its general abolition” (ibid., emphasis added). His negotiations with the French, Spanish, and Portuguese prior to Vienna illustrate this (Reich 1968: 136f.). Likewise, Viscount Palmerston (Foreign Secretary 1830–41, 1846–51; Prime Minister 1855–8, 1859–65) opined in Parliament: if all the guilt of the human race, from the Creation down to the present day, could be lumped together, it could hardly equal that incurred by the men of the odious stamp, who slaughtered or enslaved as many as four hundred thousand Africans each year, chiefly to supply the Brazilian and Cuban markets. (cited in Wilson 1950: 507) And he concluded: And is it not, then, the duty of every government, and of every nation on whom Providence has bestowed the means of putting an end to this crime, to employ those means to the greatest possible extent? And if there is any government, and any nation upon whom that duty is more especially incumbent, is not that government the government of England, and are we not that nation? Political influence and naval power are the two great instruments by which the Slave Trade may be abolished; our political influence, if properly exerted, is great, our naval power is pre-eminent. (cited in ibid.) Poignantly, appeals to abolition failed to evolve out of sympathy for the African slaves. Always, appeal focused on admission and alleviation of British guilt, and the (unspecified) benefits that would befall Britain if she abolished slave trading. Post-1800 events furthered the cause. Having achieved some temporal distance from the French Revolution, “abolitionism no longer carried the same unsavoury taint of French democratic and revolutionary ideas” once Napoleon had “succeeded to absolute power in France” (Murray 1980: 24). Further, the union of Britain and Ireland in 1800 brought abolitionist-minded Irish members to Parliament, significantly increasing the numbers in favor of a ban on slave trading. In 1805, Prime Minister Pitt prohibited “the importation of slaves into the newly acquired Caribbean territory of Guiana” (ibid.). Stephen and Wilberforce heightened their attack on “the supply of

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slaves to foreign colonies and the use of neutral flags by Britain’s enemies to fill their colonies with slaves” (ibid.) An increase in slaves in French and Spanish Caribbean colonies, they argued, threatened Britain’s colonial sugar production. While the British government could have easily annulled its ban, instead it sought to abolish the whole practice of slave trading and prohibit the use of its ships, as well as those of “neutral” countries, in the importation of slaves.8 Material arguments simply could not withstand the public power of ideas. Passage of the slave trade abolition bill in 1807 did not end the practice. Cuba and other colonies found willing brokers in Portugal and Brazil (Bethell 1970), as well as France, at least until Paris concluded “search [and seizure of slaves] treaties” with Britain in 1831 and 1833 (Wilson 1950: 510). In retaliation, Britain began to enforce its ban on other countries—if not to lead by moral example, then to protect its own colonial sugar production. Perhaps using the Napoleonic Wars as license, British warships actively patrolled the seas around coastal Africa, seized slave trading vessels, and set free those on board in Sierra Leone. At the conclusion of the wars, peace conferences in Paris and Vienna provided an international platform for the British crusade. There, London found receptive audiences. The Danes promulgated abolition in 1803 (Green-Petersen 1971, 1975; Murray 1980: 10). “The Dutch were constrained to do so in return for the cession of the East Indies; Sweden, having been handsomely paid for Guadaloupe, followed suit” (see Emmer 1980). Prussia, Austria, and Russia, “having acquired no share in this branch of commerce, were prepared, in the hope of gaining British support in other matters, to adopt an attitude of benevolence, not unmixed with skepticism” (Nicolson 1961: 212). Only the three slave trading Catholic Powers—France, Spain, and Portugal—resisted.9 After considerable diplomatic wrangling, Britain managed to secure agreement of all participants to condemn on moral principle “the inhuman traffic.” The 9 June 1815 Declaration of the Congress of Vienna affirmed: the commerce, known by the name of the “Slave Trade” has been considered, by just and enlightened men in all ages, as repugnant to the principles of humanity and universal morality; that at length the public voice, in all civilized countries, calls aloud for its prompt suppression; that since the character and details of the traffic have been better known, and the evils of every kind that attend it, completely developed, several European Governments have virtually come to the resolution of putting a stop to it, and that successively all the Powers possessing Colonies in different parts of the world have acknowledged, either by Legislative Acts, or by Treaties, or other formal engagements, the duty and necessity of abolishing it. (quoted in United Nations Economic and Social Council 1951: 3f.)

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The Peace Treaty of Paris, signed on 20 November 1815 by Austria, Great Britain, Prussia, Russia, and France, iterated their collective will to abolish “a commerce so odious,” beginning with the prohibition “in their respective dominions,” of “their Colonies and subjects from taking part whatever in this traffic . . .” (ibid.: 4). But given the recalcitrance of Spain and Portugal, a truly international ban was impossible to achieve. In the end, while the final Paris Declaration failed to “prescribe . . . when or how the several states then engaged in the slave trade should decree its abolition” (Nicolson 1961: 213), it did obtain public agreement that within five years, all powers would abolish the slave trade. If any state failed to abide by this protocol, “the others would boycott its colonial produce” (Murray 1980: 55f.).10 National courts, however, disrupted the process. In The Enterprise (1835), a Bermuda-based British justice (Mr Bates) ruled that the seizure and release of slaves aboard an American vessel, the Enterprise, forced to seek shelter in Bermuda during a violent storm, was illegal since the ship, “under ‘the law of nations’ and ‘the laws of hospitality’ . . . had an absolute right to protection and exemption from local jurisdiction.” But by 1848, the same justice, Mr Bates, concluded that developments in international law indicated the African slave trade “was contrary to the law of nations [and was prohibited] by all civilized nations . . . and . . . by the laws of the United States.” Hence, owners of the Lawrence, an American ship seized off the coast of Liberia, were not eligible for compensation owing to the release of slaves found on board (Ragazzi 1997: 112). As a result of the ruling in The Enterprise, Britain was forced to conclude bilateral treaties with other states that secured British naval vessels the legal right to “search and seize vessels suspected of engaging in the slave trade” (Krasner 1999: 107) with Portugal and Spain in 1817; the Netherlands in 1818; Brazil in 1828; Chile, Argentina, and Uruguay in 1839; Bolivia in 1840; Ecuador in 1841; and once more with Portugal in 1848. Importantly, these treaties, reminiscent of the Westphalian provision establishing a quasi-judicial aspect to international disputes, also established Mixed Courts of Justice comprised of a mix of judges from Britain and other states (in Freetown, Sierra Leone; Rio de Janeiro, Brazil; Havana, Cuba; Surinam; Cape of Good Hope, South Africa; Spanish Town, Jamaica; Luanda, Angola; Boa Vista, Cape Verde, and, in an 1862 treaty with the United States, New York) to try slavers (Bethell 1966; see also United Nations Economic and Social Council 1951: 8 for the text of the 1862 Treaty of Washington as an example of such treaties). If the bilateral treaties and Mixed Courts of Justice did much of the work involved in eradicating the slave trade, then Vienna introduced two diplomatic inventions to further entrench this norm, according to British diplomatic historian Harold Nicolson (1961). The first concerned the peacetime imposition of sanctions against states still engaged in slave trading,

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a policy suggested by Parliamentarian Lord Holland. Boycotts would be directed against the “colonial products of those countries which . . . refuse[d] to abolish their slave trade within five years” (Reich 1968: 132). The Russian Czar imposed such sanctions upon “the rebellious Spanish colonies” in 1817 for not taking steps to phase out the slave trade. The second device concerned the “institution in London . . . of a Conference of Ambassadors charged with the duty of watching the execution of the several agreements come to” (Nicolson 1961: 214). While the actual conference produced negligible results, the institutionalization of a “watch-dog” committee established a useful precedent for the future. Issues deemed imperative, by virtue of this innovation, could now be scrutinized, if not regulated, by the international community. But given our earlier treatment of Westphalia, the peacetime imposition of sanctions and the contingency of sovereignty practices on the will of the international community do not appear so novel. Vienna did not signal the end of slave trading as an international issue, however. British persistence prevailed in 1890 with the signing of the General Act of the Anti-Slavery Conference of Brussels, which provided for “the right of warships to visit and search suspect ships of any nationality” (Nussbaum 1962: 187), in addition to a variety of “military, legislative, and economic measures for the suppression of the slave trade . . . [as well as] an International Maritime Office at Zanzibar and an International Bureau at Brussels” to “centralize all documents and information of a nature to facilitate the repression of the slave trade . . . and for the exchange and circulation of documents and information useful for the suppression of slavery,” respectively (United Nations Economic and Social Council 1951: 9–11). In 1926, the League of Nations passed the International Slavery Convention, which outlawed slavery and the slave trade. Article 8 of the Convention provided that disputes between states “be referred to the Permanent Court of International Justice . . . or . . . to a court of arbitration constituted in accordance with the Convention of 18 October 1907, for the Pacific Settlement of International Disputes” (ibid.: 22). Finally, in 1956 the UN passed “the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery” (Krasner 1999: 109). The narrative stops here. Abolition of the slave trade demonstrates the constitutive power of ideas and moral considerations in an age in which material power, and sheer, brute force, often dictated foreign policy. As with Westphalia, Vienna and the subsequent international conventions on slavery restricted the range of sovereignty practices, further indicating that a society of states could not operate effectively without rules for engagement. Further, the structural, intellectual, and practical consequences of abolition were tremendous. Roger Anstey (1975: 412f.) found “a logic in the success of abolition pregnant with future consequences,” arguing that reform techniques could be used as a “bridgehead” to initiate domestic

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reforms. That reform-minded individuals raised the slavery issue at all inevitably “raised the whole question of the limits of authority over other men” (ibid.), and with it, the democratization of sovereignty.

The monarchical principle Legitimizations of sovereignty, as noted in Chapter 3, may be thick, that is, tied to democratic goods available to all within conditions of mutual regard, or thin, that is, tied to “normalized” behavior and, consequently, expectations associated with such behavior. The Augsburg principle of cuius regio, eius religio is an example of the latter, while abolition of the slave trade and the Westphalian norm of religious liberty are examples of the former. Each was in turn contingent on a conception of needs, or “our ideas of the preventable nature of some depravations, and to our understanding of what can be done about them” (Sen 1999: 154). Conceptions of needs and the availability of resources (moral, material, or otherwise) inform primary actors’ responses to crises. In the case of the monarchical principle, conceptions of needs were tied to the re-creation of European order following the French Revolution and Napoleon’s audacious campaign to vanquish the European continent. Ideational resources were more limited. Democratic ideals of liberté, egalité, and fraternité were thought to provoke, when not constrained, the very violence that shattered the veneer of European civilization. Therefore, leaders of the Grand Coalition—England, Russia, Austria, and Prussia—approached the problem in Vienna in 1815 with overtly conservative aims. British Foreign Secretary Castlereagh summarized their intent: Much will undoubtedly be effected for the future repose of Europe by these Territorial Arrangements, which will furnish a more effectual Barrier than has before existed against the ambition of France. But in order to render this Security as complete as possible, it seems necessary, at the point of a general Pacification, to form a Treaty to which all the principle Powers of Europe should be Parties, fixed and recognized, and they should all bind themselves mutually to protect and support each other, against any attempt to infringe them—It should reestablish a general and comprehensive system of Public Law in Europe, and provide, as far as possible, for repressing future attempts to disturb the general Tranquility, and above all, for restraining any projects of Aggrandizement and Calamities inflicted on Europe since the disastrous era of the French Revolution. (cited in C. Weber 1995: 42, emphasis in original)11 Aside from a collective security scheme—a reiteration of the 1713 Peace of Utrecht—the talks seemed bereft of a principle of order upon which this mechanism could be predicated. Ironically, the principle came from France.

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Despite having dissociated herself from radical Napoleonism and restoring the monarchy, France was excluded. French Foreign Minister Talleyrand, who once served Napoleon,12 communicated Paris’ displeasure to Castlereagh, who eventually conceded and invited him to assist in the negotiations. Offended by use of the term “Allies,” Talleyrand protested. “Allies against whom? Not against Napoleon—he was in Elba. Surely not against Louis XVIII—he was their main guarantee of peace” (Nicolson: 1946: 141). Instead of the old language of alliances, Talleyrand proposed something more fundamental, more stable, and more sacrosanct: “I bring you something important—the sacred principle of legitimacy” (quoted in ibid.: 142). The legitimacy of kings could be but the only “safeguard of nations” (Talleyrand Memoirs, cited in Phillips 1914: 95f.). If the war had been fought for the preservation of monarchy, then surely the so-called Allies would violate the principle and European order if she excluded France. The very presence of a minister of the venerable French crown, he argued, consecrated the very principle upon which all social order rests. Talleyrand seduced; France was in.13 As an international legal tenet, the monarchical principle modified sovereignty’s rule of recognition by specifying the conditions of agency; that is, to be accepted into the European family of nations, a state needed to be governed by the august leadership of a monarch, “preferably . . . by members of one of the traditional European royal families” (quoted in Barkin 1998: 238). Democratic principles could but instigate revolutionary, popular action which, left unchecked, could bring about the defeat and destruction of the ruling class as happened in France and, worse still, the resurrection of imperial designs. To this end, the Great Powers restored Polish independence in 1815, “minus the Duchy of Warsaw which Russia had retained” (Reus-Smit 1999: 523–38; see also Albrecht-Carrié 1968: 13); reinstated the King of Saxony (1815); pinned Belgian independence from the Netherlands (1830) on “acquisition of a king from a legitimate royal family” (Barkin 1998: 240);14 and made contingent the greater autonomous status of Bulgaria from the Ottoman Empire (1878) upon election of a European prince (Krasner 1999: 164–7). Likewise, a British Foreign Office Protocol dated 3 February 1830 to resolve the 1821–9 Greek revolt pegged recognition of an independent Greek state to the appointment of Prince Leopold of SaxeCoburg as king of Greece (Protocol reproduced in Albrecht-Carrié (1968: 119f.). Leopold, however, remonstrated and demanded that the Greek people elect him as king, something to which the Great Powers were unwilling to accede. The powers thenceforth appointed Prince Otto of Bavaria king of Greece, and Leopold “received” Belgium (ibid.: 122f.; see also Schroeder 1994: 614–21, 637–64). Even as the Concert unraveled after the Crimean War (1854–6), a decision by the Norwegians upon their 1905 independence from Sweden to invite a member of the Danish royal family to serve as “the ceremonial head of a constitutional monarchy” underscored the staying power of this norm (Barkin 1998: 240f.).

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As a political matter, the monarchical principle justified military interventions in countries that upset European peace and tranquility, which in practice meant states whose populations took up democratic causes. Much to British dismay, Concert powers intervened in Naples and Piedmont in 1821, Spain in 1823 (Albrecht-Carrié 1958: 81; Eyck 1972: 141, 167f.), and Bologna and Parma in 1831 (Droz 1967: 163f.),15 for their “revolutionary” (democratic) challenges to the European order. Other revolts and secessionist movements “that were successfully dealt with by monarchical governments in Italy, Germany, and Poland attracted little international attention” (Grant and Temperley 1952: 142),16 such as the 1848–9 French intervention in Rome at the request of the pope to restore obedience,17 Russian intervention in Hungary,18 and Prussian intervention in Denmark, are underplayed in the literature. If any one actor could be singled out as instrumental in the development of the monarchical principle it would be Austrian Foreign Minister Metternich who, guided by his anti-democratic vitriol, pressed for an indissoluble application of the principle despite a dissolving Concert. For instance, Concert response to a Greek revolt against the “abominable alien tyrant” Sultan Mahmud of Turkey illustrates the pugnacity with which Metternich approached the problem of European order. The Greek uprising grew not so much out of Ottoman misrule in the Balkans as out of nonrule, the condition of pervasive lawlessness and frequent rebellions over the whole region. The Sultan, having little effective control of his farflung empire, one which in principle had always let non-Muslims largely govern themselves . . . did not help the great peasant majority of the population, ground down by large landlords (boyars) and governed and exploited by . . . Greek officials. (Schroeder 1972: 614) Equating the Sultan with the deposed King Ferdinand of Spain by Spanish democrats, Metternich thought “support of the moral union” between monarchies necessary—more necessary than support of an oppressed people—in part because the Sultan proved a formidable bulwark against Russian expansionism (ibid.). Further, the adoption of representative constitutions by southern states in the German Confederation and the “personal timidity of the King” would, if unchecked, result in the inevitable overthrow of all the existing institutions . . . That this evil by its extension produces the means of its own extinction is also seen in Prussia. Moral, like physical, evil always reaches such a height, if it is not destroyed in its first germ, or at any rate in its very first period, that at last its weakness becomes plainly evident. The illusion disappears, its imminent and entire dissolution is palpable, and courage

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often comes in the last hours to the help of the most dejected, and it is fortunate if then the elements of relief are still at their disposal. This is the present position of the King of Prussia. (cited in Walker 1968: 86)19 If Metternich’s vitriol had an origin, it was the 1818 assassination of a renowned Russian publicist and monarchist, August von Kotzebue, by a student from the University of Jena. To the Austrian minister, the incident signified the extent to which revolutionary democrats would go to undermine the (monarchical) basis of European order. Henceforth, in the words of Kissinger, Metternich would gradually abandon political measures to effectuate change in favor of militarily enforced policy “as a means to obtain a moral basis for social repression, in a never-ending quest for the moment of order which would signal the end of the revolutionary wave and the survival of the central Empire” (1964: 238). The case of Spain proved the pivotal moment in the life of the monarchical principle, the moment at which Metterrnich’s acerbic rhetoric translated into military action, the moment at which adherence to the principle unraveled. The Napoleonic Wars virtually ruined Spain economically, socially, and politically. Industry in Catalonia, Valencia, and the Basque provinces was completely destroyed; the prosperous trade with America cut; Spain’s wealth plundered or depleted. Further, clashes between collaborators of Napoleon and Spanish patriots loyal to the king divided the country, making the government’s doctrinaire slogan of “loyalty to God, the king, and country” a mere band-aid on a fetid gash. That Britain threatened to withdraw a generous annual subsidy if Spain did not abolish slave trading only exacerbated Spanish economic woes, for while the subsidy helped keep Spain economically afloat, Madrid relied upon the slave trade to revive economic productivity in the remaining colonies (Murray 1980). To salvage former imperial glory, King Ferdinand VII schemed to re-conquer those American parts of the Spanish empire that were relinquished during the wars or had fought for and won their independence (Phillips 1914: 259). During government preparations for the incursion, the military revolted in 1819 and, aided by the collaborators, gained control of the government, forcing Ferdinand to accept the “radically democratic” Constitution of 1812 (Schroeder 1994: 607f.). That constitution placed restrictions on the Catholic Church; ended the Inquisition; extended equality of political status and proportional taxation; created a broadly elected, unicameral legislature (the Cortes); and established universal suffrage (ibid. 433; see also Grant and Temperley 1952: 115). Arguably, the constitution represented the greatest triumph for (grass-roots) democracy before the Paris Commune. The Concert powers were slow to react. But in the wake of the Spanish revolution, rebellions broke out in Naples and Piedmont, which were the two urban centers of the Kingdom of the Two Sicilies, of which Ferdinand was appointed sovereign at Vienna. Metternich erupted:

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Democratic sovereignty: history the blood will flow in streams. A nation half-barbaric, in absolute ignorance, of boundless superstition, hot-blooded as Africans, a nation that can neither read nor write, whose last word is the dagger, such a nation offers fine material for constitutional principles! (quoted in C. Weber 1995: 45)

He mused the Neapolitan revolutionary motto—“For God, the King, and the Constitution!”—was a debatable, relativist proposition that brought together the worst elements of society: The meaning of this political watchword was only half understood by the hearers, or even, I might say, by those who uttered it, but all believed the words contained the expression of their particular desire; those who paid taxes supposed it to mean a diminution of their rates; the Liberals, liberty; the philanthropist, the public welfare; the ambitious, power; and each that which he most coveted. (quoted in ibid.: 46) “Whatever its specific content,” Weber notes, “this motto made clear . . . that monarchical power was not absolute.” Yet, even with that said, although the torch of liberty had been raised in both [Naples and Piedmont], [they] had not been upheavals from the depths, that is, for a renewal of the entire soul; they had been willed . . . by officers of the Napoleonic wars, mortified and discontented and troubled about their lot, and by property-owners equally uncertain as to the preservation of their recently acquired property. (Croce 1933: 71f.) From a policy standpoint, failure to act against Naples would erode Austria’s demand in the Carlsbad Decrees that the German governments “limit themselves to purely monarchical provincial constitutions” (quoted in ibid.). Likewise, failure to act would undermine her position in the Holy Alliance—that decidedly unholy trinity of Austria, Prussia, and Russia—as well as her leadership in the Concert system. The five Great Powers assembled at Troppau, Austria to deal with the crisis. There, Russia, Prussia, and Austria issued the infamous Troppau circular, which belligerently asserted the Holy Alliance would “never recognize the right of a people to circumscribe the power of their kings” (Grant and Temperley 1952: 142; see also Schroeder 1994: 610f.). [T]his union, formed under the most dangerous circumstances, crowned with the most brilliant success . . . as it had released the European continent from the military despotism of the representative of revolution, and brought peace to the world, would be able to curb a new force not

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less tyrannical and not less to be despised—the power of rebellion and outrage . . . The Powers exercise an indisputable right in contemplating common measures of safety against States in which the Government has been overthrown by rebellion and which . . . must consequently be treated as hostile to all lawful constitutions and Governments. The exercise of this right becomes still more urgent when revolutionists endeavor to spread to neighbouring countries the misfortunes which they had brought upon themselves, scattering rebellion and confusion around. Such a position, such proceedings are an evident violation of contract . . . The allied Courts took incontestable fact as their starting point, and those ministers who could be at Troppau itself . . . made an agreement as to the principles to be followed as to States whose form of government has been violently disturbed, and as to the peaceful or forcible measures to be adopted to lead such States back into the Bund . . . [T]he monarchs assembled . . . resolved to invite the King of Both Sicilies to meet them, a step which . . . would put the King in the position of a mediator between his deluded and erring subjects and the States whose peace was threatened by them. Since the monarchs were determined not to acknowledge Governments created by open rebellion, they could enter into a negotiation with the person of the King only . . . (Troppau Circular of 8 December 1820 reproduced in Walker 1968: 128–30) Castlereagh proclaimed the circular “‘destitute of common sense’ . . . openly declined to have anything to do with such proceedings . . . and argu[ed] that any joint intervention was incompatible with the treaties and purposes of the alliance” (Schroeder 1994: 608). He avowed, in a state paper dated 5 May 1820: no government can be more prepared than the British Government is, to uphold the right of any State or States to interfere, where their own immediate security or essential interests are seriously endangered by the internal transactions of another State. But . . . they cannot admit that this right can receive a general and indiscriminate application to all Revolutionary Movements, without reference to their immediate bearing upon some particular State, or States, or be made progressively the basis of an Alliance. (cited in Weber 1995: 47, emphasis added) While Castlereagh was convinced of the necessity to preserve the general tranquility, he could not accept intervention based on abstractions given Britain’s own history. Burgess (1992: 170) reminds us that the “subversive potential of puritanism arose . . . because [Puritans] had very firm ideas indeed about the ends, or goals, for which authority existed, and which it must serve,” and directed these ideas against the excesses of the Stuart

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monarchy. This did not suggest that constitutional monarchy was more legitimate than absolute monarchy. It did, however, indicate that international legitimacy tied to the internal structure of a state could not be determined on the grounds of collective hegemony. Because England “owed her present dynasty and constitution to an internal revolution,” she could not “deny to other countries the same right of changing their form of government.” Castlereagh concluded that England “cannot, and will not, act upon abstract and speculative Principles of Precaution . . . [but must] keep the Alliance within its commonsense limits” (cited in Walker 1968: 141), which were contingent on the nature of authority and government properly constituted; that is, a government instituted for the protection and service of the people (Burgess 1992: 170). In March 1821, absent Britain’s support, Austria invaded Naples and Piedmont, burned the constitutions, and restored the monarch. But the matter of Spain remained unresolved. The Powers convened once more, this time in Verona, October 1822. Surprisingly, Metternich thought the Spanish affair a peripheral matter with no effect on Central Europe, and thus initially frowned upon intervention. But Tsar Alexander proposed a Russian intervention force, one opposed by all the other parties; surely the sight of Russian troops marching across the continent could only conjure images of a Napoleon. Instead, France convinced the powers (save for Britain, whose representative Wellington refused to sign the Verona accords) that she could effectively intervene and restore Ferdinand to full (i.e. absolute) power—perhaps out of “sympathy for the Holy Alliance” or the desire “to restore the prestige of the Bourbons by a victorious war” (Droz 1967: 220). Britain protested. Foreign Minister George Canning—successor to Castlereagh upon his suicide in August 1822—championed the principle of non-intervention and defended the British position. On 18 September 1823, Canning communicated British disquiet on the matter of Spain to the British ambassador: Is His Majesty to guaranty the [liberal] Constitution of 1812, indifference to which, to say the least . . . is the single point upon which anything like an Agreement of opinion has been found to exist in Spain? or is He to guaranty the ancient despotism, the restoration of which, with all its accompaniments, appears to be the object of by far the largest party in the Country? or is it to be in behalf of some new system . . . or is it only to the undoubted right of the Spanish Nation to reform its own Government, that the sanction of His Majesty’s is to be added? (reproduced in Walker 1968: 137) Canning raised a note wholly discordant to the Troppau Circular. Did not legitimacy speak to standards of rule? Should not the form and content of governments be left to citizens over whom governments rule? Despite British protests, and, importantly, France’s own opposition to the Troppau

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Circular, Paris nevertheless invaded Spain, deposed the democrats, and restored Ferdinand VII. If Verona sealed the fate of Spain, it also sealed the fate of the monarchical principle. The principle could not stand. A wave of rebellions that culminated in the revolutions of 1848;20 British and, gradually, French,21 pursuit of liberal norms; the increasing relevance in international affairs of countries without monarchical traditions, such as the United States; and the Crimean War eroded the principle’s reach and validity.22 If the monarchical principle could remain a norm of international relations, a regulative principle of legitimacy, then it could only do so if it was not acted upon. Empty, unqualified acceptance of the principle assured its survival; attempts to specify its content exposed rifts powerful enough to erode the alliance.

Conclusion Pre-twentieth century principles of legitimacy manifest the idea that the states-system requires regulation. Further, they demonstrate that any account of transnational politics need not dispose of the state and sovereignty. Contrary to Cronin (1999: 4), who seeks to “examine the conditions under which [the] effects [the “powerful polarizing effects of anarchy and sovereignty”] can be overcome,” or Ole Waever, who, in his Watsonian quest to reinterpret post-Cold War European security, conjures “a general study of international political forms—a geopolitics freed from the limitations of sovereignty” (1996: 221), ethical international or transnational political life may evolve within a sovereignty-based system. The lessons I have drawn from these cases, however, downplay the hegemonic, power politics aspects, and underscore the reasoning behind such schemes as cuius regio, eius religio and its Westphalian reversal, slave trade abolition, and the monarchical principle. Each emerged from a particular conception of order— some pegged to democratic goods (religious liberty, slave trade abolition, non-intervention/self-determination), others to state goods (absolutism, monarchical legitimacy). Yet conceptions of order, we saw, must be tied in some fundamental sense to the advancement of the liberties and rights of citizens, to, in essence, our “sovereignty for a common good ” thesis. To the twentieth century we now turn.

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Sovereignty in the twentieth century

Introduction Our examination in Chapter 4 yielded the perpetuation of two regulative principles of legitimacy—religious liberty and abolition of the slave trade— and the disposal of two principles—sovereign absolutism (Augsburg) and the monarchical principle. Earlier, in Chapter 3, we postulated that thin regulative principles of legitimacy collapse under the weight of their own exclusivity and repressive force. Since they fail to substantiate democratic goods, resultant disparities and deprivations produce conditions pregnant with their overthrow. We also hypothesized that thick principles of legitimacy uphold democratic goods. Our cases thus far confirm both claims. Here, we focus on the twentieth century, with special consideration of democracy, human rights, individual criminal responsibility in international law, conflict diamonds, and international environmental protective measures. To reiterate, we are concerned with the genesis and exposition of regulative principles of legitimacy that are derivative from some conception of order. Either the conception of order is thin, in which case order merely concerns normalized, routine behavior without reference to a common good, or the conception is thick, in which case order is defined with reference to democratic goods and a common good.

The democratic principle In Chapter 2, we outlined contemporary theses of sovereignty that neatly divided internal and external political spaces. Presumably, then, sovereignty insulates internal constitutional structures from international amendment or scrutiny. Yet as we saw in Chapter 4, this orthodoxy collapses under weight of evidence. Religion became a subject of vital international importance. The monarchical principle even called into question that most sacred affair of state: the right to self-determining forms of governance. Today, we see that logic played out through international advocacy of democracy and human rights—advocacy that advances the idea that sovereignty and statehood, to be considered legitimate, are subject to particular international standards and restraints.

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Several indicators confirm this. First, free and fair elections herald the seemingly irrepressible global march of and toward democratic forms of governance. As instantiations of the “will of the people” (Warsaw Declaration 2000),1 elections legitimize governments through compliance with certain normative expectations of the international community, thereby affirming our populist basis of sovereignty thesis. Manifesting the legitimizing function of elected, representative-based systems, the UN has received more than 140 requests from member states since 1989 to supervise elections or assist with “the legal, technical, administrative, and human rights aspects of organizing and conducting democratic elections.”2 The Carter Center, a nonprofit public policy center founded by former US President Jimmy Carter and his wife Rosalyn to improve the quality of life for individuals around the globe,3 has deployed “sixty-two international election-monitoring delegations to elections in the Americas, Africa, and Asia,” including Panama (1989), Nigeria (1998, 1999), Haiti (1990), Nicaragua (1990), Guyana (1992), Venezuela (1998, 2000, 2004), Nigeria (1999), Indonesia (1999, 2004), East Timor (1999, 2001, 2002), Mexico (2000), China (1997–2002, 2004, 2005), Sierra Leone (2002), Jamaica (2002), Kenya (2002), Guatemala (2003), Ethiopia (2005), Afghanistan (2004), Liberia (2005), Iraq (2005), Palestine (1996, 2005, 2006), among many others.4 Elections deemed free and fair by international observers validate domestic political structures, thereby demonstrating that sovereignty imposes costs and is tied to normative structures of legitimacy.5 Second, representatives from over 100 states gathered in Warsaw, Poland between 26 and 27 June 2000 for the first global conference, “Toward a Community of Democracies,” dedicated to the promotion of democracy and advancement of “core democratic principles and practices,” which include: •

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The will of the people . . . [as] the basis of authority of government . . . expressed by the exercise of the right and civic duties to choose their representatives through regular, free and fair elections with universal and equal suffrage, open to multiple parties, conducted by secret ballot, monitored by independent electoral authorities, and free of fraud and intimidation; The right of every person to equal access to public service and to take part in the conduct of public affairs, directly or through freely chosen representatives; The right of every person to equal protection of the law, without any discrimination as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status; The right of every person to freedom of opinion and of expression, including to exchange and receive ideas and information through any media, regardless of frontiers;

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The right of every person to freedom of thought, conscience and religion; The right of every person to equal access to education; The right of the press to collect, report and disseminate information, news and opinions, subject only to restrictions necessary in a democratic society and prescribed by law, while bearing in mind evolving international practices in this field; The right of every person to respect for private family life, home, correspondence, including electronic communications, free of arbitrary or unlawful interference; The right of every person to freedom of peaceful assembly and association, including to establish or join their own political parties, civic groups, trade unions or other organizations with the necessary legal guarantees to allow them to operate freely on a basis of equal treatment before the law; The right of persons belonging to minorities or disadvantaged groups to equal protection of the law, and the freedom to enjoy their own culture, to profess and practice their own religion, and use their own language; The right of every person to be free from arbitrary arrest or detention; to be free from torture and other cruel, inhumane or degrading treatment or punishment; and to receive due process of law, including to be presumed innocent until proven guilty in a court of law; That the aforementioned rights, which are essential to full and effective participation in a democratic society, be enforced by a competent, independent and impartial judiciary open to the public, established and protected by law; That elected leaders uphold the law and function strictly in accordance with the constitution of the country concerned and procedures established by law; The right of those duly elected to form a government, assume office and fulfill the term of office as legally established; The obligation of an elected government to refrain from extraconstitutional actions, to allow the holding of periodic elections and to respect their results, and to relinquish power when its legal mandate ends; That government institutions be transparent, participatory and fully accountable to the citizenry of the country and take steps to combat corruption, which corrodes democracy; That the legislature be duly elected and transparent and accountable to the people; That civilian, democratic control over the military be established and preserved;

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That all human rights—civil, cultural, economic, political and social —be promoted and protected as set forth in the Universal Declaration of Human Rights and other relevant human rights instruments. (Warsaw Declaration 2000)

Strikingly, signatories of the Warsaw Declaration championed democracy in the idiom of order in much the same fashion as the powers at the Congress of Vienna (1815) championed monarchy. Presumably, the argument goes, well-ordered domestic conditions and structures translate into international order and international peace. Neither are there destabilizing mass, emigrations of refugees across borders nor, as Amartya Sen has noted, famines, which tend to instigate battles over limited existing food resources (2000: 16). Third, stemming from the success of the Warsaw Conference, the Council for the Community of Democracies created a “democracy caucus” in October 2000 under the auspices of the UNGA (Crossette 7 October 2000). Caucuses have traditionally been organized by region (Africa, Asia-Pacific, Latin America, etc.), geographic formation (small islands, landlocked countries, etc.), and religion (the Islamic caucus, for example). The caucus is charged with assisting emerging democracies with the problems of maintaining independent judiciaries, negotiating diverse claims to rights and goods, securing human rights, expanding economic development, and similar concerns. Fourth, the post-Cold War world witnessed an exponential rise in the number of civic-based organizations that reveal transnational democratic structures, networks, and processes of power and authority at work. Such networks challenge spatial notions of democracy—ones that inhere in the bounded, territorial state—by advocating cross-national democratic values of participation, representation, and equal voting, as well as what may be perceived as “global values” such as environmental protection, human rights, and the rule of law. Groups such as the International Campaign to Ban Landmines, Human Rights Watch, the Carter Center, the World Wildlife Federation, Jubilee 2000, and Greenpeace have intervened in global decision-making processes—if not effectuated significant policy changes in their respective areas of expertise—and exposed the magnitude to which ordinary people (the global demos) have been excluded from global politics, but also the extent to which the global demos can help formulate new policies. Each intrusion into a delimited undemocratic sphere (the so-called “democratic deficit” of international institutions) engenders a conception of democracy freed from territorial constraints. The combination of all four developments had led at least one observer to call the first half of the 1990s “an era, if not the era, of democracy” (Held 1997: 237, emphasis in original). Yet global political life does not seem to lend itself to democracy. Major industrialized democracies like the United States and Great Britain have

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intervened in democracies abroad to advance their own particular interests. For instance, the US CIA, with the support of American presidents, has master-minded, instigated, or sanctioned the overthrow of Iran’s Mossadegh (1953), Guatemala’s Arbenz (1954), the Congo’s Lumumba (1961), Bolivia’s Paz and Brazil’s Goulart in 1964, Indonesia’s Sukarno (1965), Ghana’s Nkrumah (1966), Chile’s Allende (1973), Grenada’s Bishop (1983), and, possibly, Fiji’s Bavadra (1987), Haiti’s Aristide (1991), and, for a brief time, Venezuela’s Chavez (2002). Each leader had been democratically elected. The late John Rawls poignantly iterated that the United States, “prompted by monopolistic and oligarchic interests without the knowledge or criticism of the public” seconded its democratic ideals to an ill-defined “national security” (1999: 53). American interventions in democracies abroad no doubt highlight the pursuit of state goods of capital (against the poor and middle classes, and for multinational corporations), control (expansion of that elusive sphere of influence predicated on the equally dubious, undemocratic national interest), and the instruments of violence (the 1987 coup in Fiji allegedly retaliated against the Fijian president’s intention to declare a nuclear-free zone in the South Pacific, see Ewins 1988: ch. 1). These examples raise the pertinent question of whether the democratic principle will go the way of the monarchical principle. The monarchical principle failed. British and increasingly French liberal sentiment, combined with the liberal-democratic populist revolutions of 1848, challenged the legitimacy of monarchical absolutism and disposed of it in favor of more democratic constitutions and governance structures. But actions undertaken by the Concert powers were at least consistent with the express intent of the monarchical principle: buttressing monarchy over non-monarchical forms of government in the interests of international order and stability. Oddly, compared with the monarchical principle, application and pursuit of the democratic principle appears incoherent and inconsistent. That leading democracies have intervened in smaller democracies raises the dual specter that, on the one hand, while major democracies may be inherently peaceful with each other, they are not with regard to smaller democracies, and, on the other, major democracies often undermine the rule of the law abroad, all the while championing it, for specious or at the very least ill-defined national security reasons.6 Further, alignment of the major democracies with globalization—or “the new capitalism” as Cox (1996: 528) calls it—tends toward the re-privatization of the economic sphere, which then frees dominant economic actors “from any form of state control or intervention” (ibid.). Consequently, globalization undermines democracy by widening the gap between the rich and the poor; inducing a disproportionate relationship between finance and production, whereby the “symbolic economy” of money outstrips the “real economy” of production and distribution; and forcing underdeveloped countries to refinance old debt with new (ibid.). Globalization restructures

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production, which undermines the “power of labor in relation to capital”; stimulates migrations of people in search of better working conditions and higher wages—which in turn often engenders anti-immigrant measures and activities; creates an “internal South” in the North, and “a thick layer of society [in the South] that is fully integrated into the economic North”; and encourages corporate welfare policies that do little to improve on any substantial level the lives of workers or the environment (ibid.). Add to these ills the “democratic deficit” of today’s multilateral, international institutions, particularly the EU, in which democratic states employ undemocratic policy-making procedures and methods, and the problem of democracy on a global level becomes acute, to say the least (see Anderson 2002; Held 1997). Despite these shortcomings, diverse agents rally around democracy as consistent with their multiple, particularistic ends and interests. Ordinary people seek democratic forms and procedures as means to pursue selfdetermined life projects since, theoretically, democracy rests on the twin moral and political discoveries of “self-aware freedom and self-conscious individuality,” or, in Gilbert’s idiom (1990: 2, 31), “democratic individuality” understood as “living a life of one’s own” (our individuality and common good theses). Government leaders, too, at least pay lip service to core democratic values and principles to secure international legitimacy so that they may pursue their own ends (minimal conditions for recognition and sociality of sovereignty theses). And great powers use democracy and market economies to (1) push an expansive, global capitalist agenda that, though supportive of big business, may have more than fleeting beneficial effects on local populations, supports big business, and (2) generate international order and peace, if one accepts the tenets of the democratic peace theory. But democracy-from-above, with its emphasis on electoral, representative-based systems and political and civil over economic and social rights, tends to shrink democracy to Weberian mechanics by operationalizing it and equating its meaning to “whatever measures it” (Gilbert 1990: 348; see also Aristotle 1958: 1282b14–1283a23, 1284a17–b26). Free market ideology and policy push government out of people’s lives (in part coincident with the peoples’ will to live their lives as they see fit), and furthers the interests of the elite, which then deepens poverty, lays waste to the environment, generates apathy among voters, and weakens the populist base (and presumably opposition to government action and policy). Here, democracy-from-below (activism, public discussions, and the like) counters top-dominated forms and translates the domestic activism of citizens internationally (Weinert 2005). To paraphrase David Held (1997: 238), we might even say that transnational activism devoted to environmental protection, defense of human rights, application of the rule of law, and increased opportunities for women in development and government demonstrates how democracy within states requires international democracy

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among states, which is the issue to which I devote the remainder of this chapter. Realistically, democracy-from-below cannot replace democracy-fromabove; rather, it supplements (and even constrains on some levels) institutional apparatuses. But neither can democracy-from-above be relied upon to promote substantive transnational democracy. There must be some melding of the two. In this regard, programs championed by the global South; institutions such as the UNDP and International-IDEA (the Institute for Democracy and Electoral Assistance, “an intergovernmental organization with the sole mandate of promoting and advancing sustainable democracy worldwide”7); World Bank studies of poverty and development, and the work of academics such as Gilbert, Sen, Rawls, and Dworkin lend substance to procedural models that rest on majority rule and the occasional election by appealing in some measure to more equable distributions of democratic rights and goods, and mutual regard among peoples and states. Determination of such distributions requires enduring, unfettered exchange between peoples over public political questions (Rawls 1999: §1.3, p. 138). Domestically, we understand such exchange or deliberation to occur between spatially bounded citizens. Internationally, however, deliberation requires that we de-spatialize our understanding of the demos; deliberation occurs between diverse agents across borders of pressing global issues (Taylor 2002). Here, organizations such as the World Wildlife Federation, Human Rights Watch, the Carter Center, and the like serve as forums for exchange, and expand the parameters of what constitutes the international agenda. Deliberation and participation in turn encourages peoples and governments to “form values and priorities” and to conceptualize social and economic needs in ways that will benefit all (Sen 1999: 10f.). As affirmed by the Warsaw Declaration, this involves a commitment to a free press, the unencumbered exchange of ideas, public education, and the opening of various forums for public discussion and debate not limited to elections every two or four years. Philosophically, Hegel rightly emphasized the role of education (Bildung) in the state and the realization of freedom: “this growth of the universality of thought is the absolute value in education” (1952 [1821]: para. 20, p. 29). For him, education encompasses not only institutionalization (public schools, universities, and the like), but also a “cultured state of mind” (ibid.: 315, fn. 58 to para. 20). In a Kantian idiom, we might call this state of mind sensus communis—a sense common to all—or, to frame it in an Arendtian idiom, “learning to think from the standpoint of others.” Interpreted in a Marxian vein, Hegel gets at a conception that begets populist movements. As Gilbert notes, “the educational role of political action, its impact on the integrity of the self,” should not be underestimated: namely, “the coincidence of the change of circumstances and of human activity or self-change” (quoted in Gilbert 1990: 248). In the end, these movements underscore the “possibilities of cooperation and deliberative political action”

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necessary for a viable, effective, free democratic system, thus highlighting the necessity to defend space (loosely construed) within which ordinary peoples can act. If Arendt was right about the distinctiveness of politics— the critical component being natality, or the ability to act anew (1958: 8f.)8—then there is an obligation to re-envision the space within which politics occurs coincident with global changes, and encourage the sort of transnational activism we have witnessed in recent decades. In this regard, democracy is not simply a domestic constitutional arrangement but an international concern; the Warsaw Declaration affirms as much. Borders must not be allowed to prevent action in one country from countering, say, oppression, in another. Recall Hegel’s insight that “slavery is an outrage on the conception of humankind,” or Marx’s, that “labor in a white skin cannot be free where in the black it is branded” (1990: 414). Both fluidity of borders and transnational activism sustain global democracy. This insight reiterates our populist bases of sovereignty, common good, minimal conditions for recognition, sociality of sovereignty, and, broadly construed, the internationalist theses. Unfortunately, state policies strongly favor large businesses that produce, for example, military hardware, and further an expansive capitalist agenda abroad. To be effective, democracy requires an atmosphere free from the scourge of money, else politics be dominated by corporate interests—a worrisome and deplorable condition of contemporary American politics. Since all people are understood to have an equal stake in governing, certain classes should not be allowed to have particular advantages based on accumulated wealth or filial connection. Democracy entails equal, substantive access to systems of governance, which restates the accessibility of government and public policy-making to all, common good, and individuality theses. To be internally coherent and consistent, democracy must substantiate the equal claims of all people. Here, we may formulate that idea as the equal freedom of each person (Rousseau), universal, inalienable, equal human rights (Donnelly), the equal priority of all citizens (Rawls), or the primacy of equal liberty (Dworkin). Even democracies understood as majority “wills of all” must recognize and respect the primacy of each individual else they produce incoherencies. Related, democracies must be non-hierarchic and non-status oriented (Gilbert 1990: 402–22). Consider Rawls (1979: 60): the idea that “social and economic inequalities are to be arranged such that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.” Under this argument, hierarchies and resultant inequalities, or inequalities and resultant hierarchies, must benefit all. Chomsky might call this “global meliorism” (1997: 1). These claims reiterate our individuality, incontrovertibility of life, minimal conditions for recognition, and accessibility theses. Democratic regimes must also provide “opportunities for people to manage their own collective and individual affairs” (Rawls 1979: 1). Democracy

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cannot simply be about government hand-outs. The 2000 UNDP poverty report advances this argument through its pro-poor governance programs, which include holding governments accountable to people through free and fair regular elections; adapting technology to keep people well informed of government decisions and programs; and, significantly, devolving authority to local government and providing these new centers of authority bases the resources and capacities to be effective (UNDP 2000a: Executive Summary). The UNDP’s capabilities approach to development seeks national ownership of anti-poverty plans, not donor driven ones that often “confuse social spending with poverty-related spending” and take up “poverty after the fact as a residual social issue” of old-style structural adjustment programs. Since the UNDP recognizes that powerlessness is a major cause of poverty (which is multidimensional and does not simply mean low-income or lack of income), it seeks to remedy this by community-based, directdemocracy style programs. A few brief examples illustrate. In the run-up to the 1999 general election in Indonesia, twenty-one civil-society organizations “conducted a voter education campaign targeted to women, first-time voters and journalists. The campaign is estimated to have reached more than 100 million Indonesians[;] in June 1999, 117 million Indonesians turned out to vote for a new parliament.” In Bangladesh, UNDP electoral assistance and voter education programs increased voter turnout in the 1996 elections from 40 percent in 1991 to 73 percent, with a substantial increase in the number of women voters (ibid.: 2). By their nature, electoral assistance programs increase people’s access to knowledge, skills, and technology, and give people ownership, broadly construed, in programs that will alleviate the burdens of poverty. Similarly, India amended its constitution in 1992 to allow for direct democracy initiatives in the form of Panchayat Raj, or elected institutions of self-government at district, block, and village levels. From the 3 million elected positions in these bodies, scheduled castes and scheduled tribes are assigned about 660,000 seats, in proportion to their share of the population, and women get 1 million. Many women have formed discussion groups and networks to strengthen their position in the face of long-standing cultural barriers. Today, India’s system of governance is being built slowly from the bottom up—based on direct democracy—not erected from the top down. Civil society organizations are joining with local government to promote change. At the village level people are conducting “social audits” of government funds to ensure accountability and transparency. Gram sabha, or village assemblies, are contesting corruption and abuses of power. Local governments are mobilizing new tax revenue and initiating development projects based on participatory consultation. (ibid.: 2f., emphasis in original)

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In Sen’s idiom, democratic, political freedoms complement fulfillment of economic needs. Yet, internationally, real inequities in the global market exacerbate poverty, such as the inability of developing countries to “penetrate major export markets in industrial countries—in part because of the formidable walls of protection that remain” (Becker 31 July 2004). Thus while the US and the EU demanded that these poor developing countries “open up their agricultural sectors—a measure that threatens to undermine their food security and spread poverty,” for years they continued to protect their own farmers. The December 1999 Seattle World Trade Organization (WTO) meeting failed to address this issue. Yielding to pressure from the developing world and the EU (which eliminated its farming subsidies), Washington agreed on 30 July 2004 to cut 20 percent of subsidies paid to American farmers. Such subsidies, in the words of the World Bank, International Monetary Fund (IMF), UN, and Oxfam International, are one of the worst injustices in the global economic system, allowing rich countries to flood the global market with inexpensive food and commodities that make it impossible for largely rural, poor countries to trade their way out of poverty, much less improve their own farmers’ livelihoods. (ibid.) This agreement seeks to make fairer international trading rules by eliminating “protectionism that is biased against developing countries” and by strengthening “the capacity of developing countries to negotiate global and regional trade agreements” (UNDP 2000a: Executive Summary). As Sen would see it, the sort of activities, programs, and processes mentioned in this section reflect a shift in international political discourse from making a country fit for democracy to making a country fit through democracy (1999: 4). This in turn reflects a preoccupation with international political legitimacy, which is contingent on the form and substance of domestic constitutional structures. But we must be careful not to limit our focus to procedures, for procedures only account for so much democracy. Majority decisions, periodic elections, and representative assemblies, however, may undermine particular rights and liberties associated with today’s liberal democracies, thereby underscoring that for democracy to remain internally consistent, it must be buttressed by ethical considerations such as guarantees of the same scheme of equal rights available to all. Focusing solely on procedures leaves us with the specter that globalizing democracy is, rather, a fait accompli. Election monitoring, a declaration of democracy by a majority of states, a UN democracy caucus, growth of the number and effectiveness of transnational organizations in global policy-making, and increased pressure on existing institutions to make procedures and

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decision-making more transparent, all speak to a global entrenchment of democracy. Globalizing democracy seems, in short, the work of states and institutions. Alternatively, democratizing our global world requires much more work, beginning with the reform of the state itself and the broadening of individual consciousness. Democratizing globalism, as we might call it, seems, in short, the work of social movements and civic activist groups. Here, we may invoke Marx to illustrate: citizen-based movements “are not only more, but even qualitatively, democratic” than “truncated liberal regimes” and “market socialist versions of liberal theory” (Gilbert 1990: 306, emphasis in original). In praise of the Paris Commune, Marx celebrated “the creation of a political arena in which those previously oppressed could deliberate, act, and transform society,” in which women participated “on an unheardof scale,” and in which democratic internationalism on a limited scale—the election of a Pole and a German to high communal offices—triumphed (ibid.: 249).9 An operational, misguided political “science” might try to stigmatize a democratic view as radical. But there is nothing radical in, say, UNDP programs that provide for peoples’ needs and incorporate them into political life, or making a global trading system fairer. The point is that democracyfrom-above must be coupled with democracy-from-below, and it is in this coupling that democracy has come to be a legitimizing principle of sovereignty. In short, democracy straddles both constitutive-defining and regulative principles of legitimacy. While it defines the authoritative component of sovereignty internally, it also legitimizes sovereignty externally by making it a precondition for membership in good standing in the society of states.

Human rights norms Many see human rights and sovereignty as fundamentally opposed, with the former construed as besieging, compromising, contradicting, breaching, or eroding sovereignty (see, for example, Forsythe 1983; Henkin 1999; Krasner 1999; Lyons and Mayall 2003; Weiss and Chopra 1995; for a comprehensive accounting, see Donnelly 2004). Leo Gross (1948) might have instigated this notion with his titular post mortem, “The Peace of Westphalia, 1648–1948,” by which he meant the death of a permissive, unrestrained sovereignty by the United Nations Charter and the UDHR. Yet no autopsy need be committed; sovereignty remains vibrant, even if its practices have been constrained within particular parameters. But human rights seem a peculiar phenomenon. Being universal— “every human being has them”—equal—“one either is a human being (and thus has these rights equally) or not”—and inalienable—“one cannot stop being a human being, and thus cannot stop having these rights” (Donnelly 2000b: 8)—human rights conceivably proliferate beyond minimal conditions

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necessary to protect persons and “human agency against abuse and oppression” (Gutman 2001: ix). On this reading, denying people food or access to potable water are as much violations of human dignity and agency as torture or genocide. The point here is not to debate the moral worth or practical problem of responding to starvation or famine in the same way as we might respond to torture. Rather, the point here is, first, to indicate that at minimum, human rights demand that every person, “endowed with reason and conscience” recognize the moral worth of all others and act toward them “in a spirit of brotherhood” (UDHR 1948: Article 1), and, second, that human rights norms “tame” sovereignty practices. In this regard, the international community accepts, if unevenly enforces, the idea that “the protection of the most fundamental human rights”—such as disappearances, systematic torture, apartheid, genocide, crimes against humanity—“has become a matter of international concern” (Schermers 2002: 186f.; see also United Nations Security Council (UNSC) Resolution 1296 (2000)). Human rights, which exhibit certain features of moral objectivity, including mutual regard, tolerance, and equality, thus serve as a “common standard of achievement for all peoples and all nations” because they restrict “the legitimate range of state action [and] . . . function as a standard of political legitimacy” (ibid.: 9).10 To recall our discussion in Chapter 3, legitimacy and legitimization attain through practice and perception. According to Ashley, legitimacy concerns “the power and status . . . an actor depends on”; such power and status are, in turn, contingent on “the conditions of its recognition within a community as a whole” (1984: 291f.). An agent secures recognition as one “capable of having [legitimate] power,” which in turn is conditioned by the demonstration of its competence or fitness in terms of a common good for all. Legitimacy thus attains through observance and enforcement of human rights norms. Yet there are skeptics. In Stephen Krasner’s idiom, state rulers endorse human rights “not because they [have] the intention or even ability to implement their precepts, but because such agreements [are] part of a cognitive script that define appropriate behavior for a modern state . . . Signing . . . [is] decoupled from actual practice” (1999: 106). For him, sovereignty is, like all international institutions broadly conceived, “organized hypocrisy,” dominated as it were by instrumental, rational calculation designed to maximize an actor’s particular preferences over cognitive scripts, or “cognitive models that filter perceptions and suggest appropriate behavior” (ibid.: 63). Yet Krasner does not fully capture or appreciate the transformative role “cognitive scripts” (1999: 63f.) may play and have played in sovereignty regimes, especially considering his treatment of Britain’s moral/ideational crusade to end the slave trade (ibid.: 106–9). Cognitive scripts do not necessarily divorce words from deeds; indeed, they tie them together. Cognitive scripts generate enormous domestic, international, and transnational feedback loops, which then generate certain expectations of behavior

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(obligations, responsibilities, prohibitions) on the part of leadership (state sovereignty). Indeed, cognitive scripts may cause a state and citizens of any state to act and behave in ways a realist may not accept or be able to explain, but in ways that do not necessarily contradict sovereignty. (Arguably, human rights strengthen sovereignty and statehood, albeit a particular form.) For example, during the Cold War the West celebrated transnational civic activism as evidence of Western “freedom” in contrast to the “rigid state controls in the East,” and championed human rights because it countered “the reemergence of totalitarian abuses” in the Communist world. The Communist East, in turn, championed human rights because it found in them an appropriate “ideological high ground with respect to issues of societal well-being” (Falk 1999: 94), and treated such movements as “‘free propaganda tools’, since the target of activist groups was generally the governments of leading states in the West” (ibid.: 103). Here, both Krasner and Falk concur that both sides sought reassurance in the belief that sovereignty insulated their respective societies and systems from “any meaningful accountability to any external authority” (ibid.: 94). Both would agree, further, that, as Falk notes, human rights proved to be an “unanticipated civic source of agency” that led to the “transnationalization of specific civic initiatives” (ibid.). Such citizen-based, transnational movements propelled human rights out of the backwaters of lip service and propaganda into central arenas of concern and political potency (ibid.: 97). (Related, under human rights arguments, citizen-based groups would later spearhead the effort to indict Chile’s Pinochet, Chad’s Habré, and Yugoslavia’s Milosevic on the grounds of abuse of authority.) Krasner does have a valid point, though: major democracies overthrow democratically elected leaders in smaller states for specious national security reasons; states and non-state agents continually violate human rights; and, as Richard Falk (1999) calls it, there is a general “statist backlash” against human rights campaigns, environmental activists, and anti-globalization protesters. True, power politics and ideology hinder the progress of human rights: the US has derailed several UNSC resolutions condemning Israeli violence against the Palestinians and one in particular that proposed “a UN observer force to help protect Palestinians” (Holloway 28 March 2001); China used its influence to avoid debate on its rights record during a sixweek spring 2001 meeting of the United Nations Human Rights committee (Crossette 19 April 2001);11 and US-led UN sanctions against, and the invasion of, Iraq did substantial harm to Iraqi citizens. But focusing solely on uneven enforcement seems to me weak for three principal reasons. First, focusing primarily on enforcement directs attention toward a very narrow range of (coercive) activity; as such, it misses the substantive normative content of emerging and strengthening commitments to particular values, as well as state discursive activity surrounding norms. In the case of a well-developed norm—say, the injunction against slave trading and

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slave holding—in which states deeply internalize the norm and adhere strictly to the injunction such that the practices nearly disappear, then the issue of enforcement (in a narrow, coercive sense) is moot and loses explanatory capability. In the case of an emerging norm, enforcement fails to get at the more central process of norm emergence and specification. A more nuanced approach would thus consider actor perceptions of a norm, as well as its universality. A focus on enforcement further fails to recognize that actors perceive norms of qualitatively dissimilar value-content differently. Consider the nineteenth century monarchical principle, which linked recognition of sovereignty and the maintenance of international order to monarchical forms of government. Strict enforcement entailed violent interventions to overthrow democracies in Piedmont, Naples, Spain, Bologna and Parma, Rome, Hungary, and Denmark (Eyck 1972). On Bull’s definition, this norm is solidarist, meaning the “assumption . . . of solidarity, or potential solidarity, of . . . states . . . with respect to the enforcement of the law” (1966: 52), which I think is correct. But notice how the norm—which quickly fell from grace—contrasts with strictly enforced rules prohibiting slave trading and slavery. While slavery has been virtually (though, sadly, not completely) eradicated, states still vilify the practice and consider the injunction legally binding. Perhaps actor perception of the law matters more than enforcement. Perhaps we must make some qualitative distinction between thick, ethical solidarist norms that enforce universalizable claims of justice, and thin solidarist norms that enforce claims of order based on particularistic claims of justice. In either case, solidarism cannot be equated primarily with enforcement, as Bull opines, or with cosmopolitanism, as Wheeler and Dunne (1996) suggest. Second, how should we define enforcement? I construe enforcement as any activity that upholds the law. Means of enforcement, then, occupy a broad spectrum of possibilities—from pacific methods (negotiation, mediation, and the like), to the use of military force, to ongoing practice in observance of a rule without any “enforcement” in the previous senses. Think of international laws governing the protection of diplomats. Most often such laws are a non-issue, being “enforced” on a daily basis through strict observance—repeated practice—of the rule. Only when a violation occurs—i.e. the Iranian hostage crisis of 1979–80 in which Iranian students held American diplomats for 444 days—does the question of “enforcement” in a very strict sense arise. This brings me to my third point. Enforcement of law in any system is often uneven. On a domestic analogy, we might think of a stop sign regulating the flow of traffic. Many people do not fully stop—doing what is referred to as a rolling stop, which is still an infraction—but this fact does not invalidate the content of the rule. Instead of thinking of enforcement in quantitative terms (how many times the law is enforced, measured in the number of tickets issued by

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law enforcers), we might be inclined toward more qualitative measures: do agents accept the fundamental premise underlying a specific rule and, moreover, treat it as necessary and essential to community order and values despite short-term or short-sighted excuses for not abiding by the law? As Onuf (1998: 127) aptly notes, “all rules . . . depend for their effectiveness on internalization . . . and on such external features . . . as formality and institutionalization.” In this regard, we might consider Donnelly’s claim that human rights and democracy are in some fundamental sense incompatible. He writes, “human rights . . . are in an important sense profoundly anti-democratic. Their aim is to frustrate the will of the people when it diverges from the requirements of human rights” (2000b: 41). I think, quite correctly, that he reveals an important contradiction between, on the one hand, procedural, majority-based democratic norms, and equal rights as a substantive democratic norm on the other. To illustrate, he invokes “constitutional review by an ‘undemocratic,’ even ‘anti-democratic,’ Supreme Court” which serves to “assure that the people, through their elected representatives, do not exercise their sovereignty in ways that violate basic rights” (ibid.: 42). To sustain his argument, we might recall that the US Supreme Court struck down as unconstitutional in Romer v. Evans (1996) a voter approved Colorado state amendment that abolished legislation aimed at protecting homosexuals from being fired by an employer or evicted by a landlord for reasons of sexual orientation. Similarly, we might also think of the Austrian sanctions crisis of February–July 2000, during which time the EU imposed diplomatic sanctions against Austria for electing Jörg Haider’s right-wing Freedom Party to office. Ostensibly, the sanctions were not designed to instigate regime change, but to remind the Austrians that anti-Semitic, antihuman rights invective was not welcome within a European community of shared values (Judt 2000). Donnelly raises an important point, but he seems to dodge his earlier argument: if human rights are essentially universal, equal, and inalienable, then how could majorities alienate the human rights of some? How could their denial be anything but anti-democratic, and their safeguarding democratic? Such institutions appear as necessary internalizations of deeply held norms. Even majority-based democracies, to remain internally coherent and selfconsistent, must recognize the inherent dignity of a set of equal, inalienable human rights for each person. If they do not, then majorities might enjoin the enslavement of ethnic minorities, women, gays and lesbians, Catholics, Jews, or Muslims because they conceive slavery to benefit the greater good. Clearly, this utilitarian argument would be rejected today, but more subtle forms of discrimination and violations of fundamental human rights may take its place. My point about enslavement—obviously an exaggeration—exposes the limits of putative value-neutral political conceptions about a common good and democracy. No democracy can be coherent which, as

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a series of wills of all, abolishes the equal rights of each citizen. Put differently, the extension of equal basic rights of all citizens is a necessary condition for democracy to achieve a common good, as opposed to a selfnegating series of wills that realize only particular, despotic interests. Arguably, human rights extend democracy’s logic—expanding individuality and the freedoms essential to “living a life of one’s own.” Development of human rights, democracy, economy, and society perforce “requires the removal of major sources of unfreedom,” including, according to Sen, “poverty as well as tyranny, poor economic opportunities as well as systematic social deprivation, neglect of public facilities as well as intolerance or overactivity of repressive states” (2000: 3), and barriers to education, information, civic action, and community organizing. Human rights, in both ideal and practical senses, strengthen a particular form of state—one most closely related to Western, procedural forms of democracy (that, as we saw above, are being amended by such things as UNDP programs designed to promote direct democracy). Gregory Fox pursues this line of argument (1997: 107). He asks if “sovereignty is best understood as an allocation of decision-making authority between national and international legal regimes . . . should primary authority over humanitarian issues be located at the national or international level?” His argument challenges both conventional statist (realist) and cosmopolitan/global civil society assumptions. Authority over humanitarian issues defaults to the international community when grave breaches occur (Donnelly 1998 concurs), but, ultimately, “the international community’s concern with an expanding list of essential human rights, culminating in the Somalia operation, should be seen as an attempt to strengthen, not weaken, the state as a political unit” (Fox 1997: 108). One might claim, then, that such “interventions” both defend the sovereign state “on the grounds that the state is of authentic value to its population” (Wheeler and Morris 1996: 151), but locates the state in a larger moral project. Recall the famous assertion by the Permanent Court of International Justice: “the question of whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations” (cited in Fox 1997: 114). If one accepts this premise, then it is easy to conclude that “where the state fails to provide for the good life, its right to the protection of the norm of non-intervention should be called into question” (Wheeler and Morris 1996: 151). Instead of insulating the state from the external, as sovereignty is usually construed as doing, a democratic sovereignty permits activation of a responsibility to others when directed toward the defense of human life and core human rights. Intervention, when conducted within certain protective parameters, does not usurp the state and sovereignty but supports it. In recognition of the need to defend and advance a core scheme of human rights, the international community has evolved, developed, or permitted a

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variety of mechanisms to monitor, implement, and enforce human rights, as well as respond to abuses, including: •

• •

•

international criminal courts and tribunals; such as the ICC, the ICTY and the International Criminal Tribunal for Rwanda (ICTR), and hybrid tribunals and special courts for East Timor, Kosovo, Sierra Leone, and Cambodia; truth and reconciliation commissions, such as those in South Africa, El Salvador, Sierra Leone, Guatemala, and Argentina, among others;12 regional courts and human rights conventions and commissions, such as the Council of Europe; the European Court of Human Rights; the Inter-American Court of Human Rights; the Inter-American Commission of Human Rights; the Permanent Arab Commission on Human Rights; the Arab League’s Human Rights Commissions; and the African Court on Human and Peoples’ Rights; and NGOs, such as Oxfam International, Human Rights Watch, Amnesty International, the International Committee of the Red Cross, and Medicins sans Frontiere, among others, to monitor and address human rights issues across the globe (see, generally, Donnelly 1989; Forsythe 2000).

In cases of egregious human rights abuses—genocide, ethnic cleansing, crimes against humanity, and grave breaches of common Article 3 of the Geneva Conventions, which extends protections to civilians in non-international armed conflicts—some countries either singly or as members of a coalition have intervened to stop the abuses, though univalent interventions such as India in East Pakistan (1971), Vietnam in Cambodia (1979), and even the British and American-led NATO (North Atlantic Treaty Organization) intervention in Kosovo (1999), generally rouse international community indignation. To date, while there may be growing acceptance of a moral responsibility to intervene where grave human rights abuses occur—inaction with respect to the situation in Darfur, Sudan, challenges to this presumed moral responsibility—there is not yet a document entailing a legal duty to intervene. Yet movement on that front has accelerated. In 2000, at the behest of UN Secretary-General Kofi Annan, the Canadian government, with input from major foundations, multiple non-state actors, and the UNGA, established the ICISS to wrestle with the legal, moral, and logistical issues entwined with the issue of humanitarian intervention. Its final report, published under the title The Responsibility to Protect (2001), single-handedly changed the terms of the debate from “the right to intervene,” which too often “focuses attention on the claims, rights, and prerogatives of the potentially intervening states,” to a “responsibility to protect” communities from egregious acts of violence, including “mass killing . . . systematic rape and . . . starvation” (ICISS 2001: 16f.). The report, further:

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outlines a permissive—just—cause for some form of collective military involvement (ibid.: 31–7); reflects natural law precepts elevating the dignity of the human person that, as Bull notes, “may not be in conformity with the movement of events but may utter a protest against them” (Bull 1966: 67), and hence drives events in some fundamental sense; affirms that the most egregious human rights abuses demand (politicomilitary, legal) response, thus advancing the logic embedded in international criminal law that seeks to hold accountable those responsible for egregious human rights abuses; and, thereby, confirms the status of individuals as rightful members in, if not ultimate members of, international society.

World leaders adopted in principle a “responsibility to protect” during the September 2005 world summit honoring the UN’s 60th anniversary and called upon the UNGA to continue consideration of it and its implications (World Summit Outcome 2005: para. 139). Notably, states indicated their preparedness to “take collective action, in a timely and decisive manner, through the Security Council” or relevant regional organizations in light of the inadequacy of peaceful means and the failure of national authorities to halt suffering. The resolution, one might contend, indicates emerging, general consensus on broad parameters of enforcement and, further, that activation of a “responsibility to protect” must be aimed not at disposing of or supplanting sovereignty, but defending it. Such action reaffirms our common good, individuality, internationalist, incontrovertible good of life, and sociality of sovereignty theses. If my general reading is correct, given the development of democracy and human rights, then we might contend that legitimacy proceeds through developmental stages, each one becoming substantially deeper with moral realization and ethical reflection. Advocacy of democracy and human rights may at the moment reflect general concern with surface structure—that is, with the mechanics of elections and representation, and the guarantee of basic civil and political rights. While this may make it easy, for instance, for the United States to denounce Fidel Castro (he wasn’t elected), it also, unwittingly, highlights the severe economic hardships incidental to the imposition of sanctions against Cuba by Washington. Are social and economic rights categorically subservient to civil and political rights? I pose the question rhetorically; many authors have given poignant voice to social and economic rights (Beitz 1979; Donnelly 2000b; Sen 2000). Suffice to note that in much of Africa and Asia “human rights activists are central to struggles against poverty and misrule” (Donnelly 2000b: 7). Certainly, the World Bank’s Voices of the Poor, UNDP programs, and the human security agenda blend concern for both sets of rights—civil and political as so-called “first generation,” economic and social as “second generation” rights. Furthermore, such a blending might presage a correction

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of economic and social inequalities, and the advancement of individuality and freedom—which echoes Sen’s conception of development as “a process of expanding the real freedoms that people enjoy” (2000: 3; see also Gilbert 1990 and 1999). Such expansion is the substance of democracy writ large. From a practical standpoint, human rights are necessary because of democracy’s perversion by capital and violence. In short, they express the expectations of a democratic sovereignty and affirm its most vital aspects.

International criminal law and the International Criminal Court Our cases thus far confirm that matters traditionally considered under the purview of state control and authority—religion, government structure, and human rights—supervene IR discourse in ways that manifest a conception of international (and possibly world) society bolstered by the concrete expression of cosmopolitan aspirations and values, but predicated on the robustness of the sovereign state. Sovereignty thus acts as the fulcrum upon which these societies transform, and is an evolving principle and process containing the mutual constitution and management of law and politics. To our cases we add individual responsibility in international law for egregious crimes, which indicates entrenchment of the idea that gross human rights violations that “shock the conscience of humanity” such as crimes against humanity, war crimes, and genocide (Rome Statute 1998: Preamble) or crimes that “threaten the very foundations of world order” (US v. Fawaz Yunis 1988 cited in Cassese 2002: 242)13 merit the attention of the international community. The idea is not new. International law has long recognized individuals as hostes humani generis such as pirates and slavers who, as common enemies of humankind, may be prosecuted by any nation that captures them (Charney 1999: 455). Piracy and slaving generally occur on the high seas beyond the territorial jurisdiction of any state, and as such are viewed as offenses against humanity rather than as crimes against specific states. The quintessential verbiage on piracy appears in the US Supreme Court case, United States v. Smith (1820): There is scarcely a writer on the law of nations, who does not allude to piracy as a crime of a settled and determinate nature; and whatever may be the diversity of definitions, in other respects, all writers concur, in holding, that robbery, or forcible depredations upon the sea . . . is piracy . . . The common law, too, recognizes and punishes piracy as an offence, not against its own municipal code, but as an offence against the law of nations (which is part of the common law), as an offence against the universal law of society, a pirate being deemed an enemy of the human race. (cited in Janis and Noyes 2001: 135)

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With piracy virtually eradicated by the end of the first third of the nineteenth century, attention focused on slaving. But the practice of holding individuals responsible for international crimes waned after the 1871 closure of the Mixed Courts of Justice for the suppression of slaving (Bethell 1966), and only briefly reappeared at the end of World War I when Britain, despite the opposition of the United States, pushed for prosecuting war criminals.14 Article 227 of the Versailles Treaty targeted Kaiser Wilhelm II “for a supreme offense against international morality and the sanctity of treaties,” and Articles 228–30 “recognized the right of the Allies to set up military tribunals to try German soldiers accused of war crimes” (Schabas 2004: 3; see also Chopra 1999: 8–11). German courts, under the auspices of the Allies, did hold what became known as the “Leipzig Trials,” but they smacked more of “disciplinary proceedings . . . than any international reckoning.” Indeed, an initial list of 900 suspects was “whittled down to about forty, and in the end only a dozen were actually tried”—most of whom were acquitted (ibid.: 4). In 1945 and 1946, the victorious Allies created the International Military Tribunal at Nuremberg (IMT) and the US singlehandedly took the lead in modeling the International Military Tribunal for the Far East (IMTFE) on the IMT. The tribunals established the precedent that individuals who wage aggressive wars and commit egregious crimes against civilian populations may and will be held accountable, despite rank in political or military hierarchies or defenses of “act of state” or “sovereign immunity” (Cassese 2003: 329–33; Maogoto 2004: 98–106; and Schabas 2004: 5–8). In the years since Nuremberg and Tokyo, international criminal law has come to recognize genocide; trafficking in women and children, and narcotics and drugs; hijacking; torture; terrorism; money laundering (Schabas 2004: 26); racial discrimination (notably in the form of apartheid; see Ragazzi 1997); and, potentially, famine (Marcus 2003), as international crimes. Antonio Cassese, former president of the ICTY, objects to inclusion of acts other than “war crimes, crimes against humanity, genocide, torture, aggression, and some extreme forms of terrorism” under the rubric international crimes, which he defines as “breaches of international rules entailing the personal criminal liability of the individuals concerned.” Cumulatively, international crimes embrace “violations of international customary rules (as well as treaty provisions . . . )” and “rules intended to protect values considered important by the whole international community” (2003: 23ff.). But on his definition, under which he places human rights conventions, conventions against torture, and the like, the acts listed above, as violations of human rights laws and norms, must necessarily be construed as international crimes. Since the early 1990s, international criminal law has, to put the matter colloquially, exploded. The UNSC established tribunals to try individuals for crimes committed in the former Yugoslavia and Rwanda, and created mixed tribunals or special courts (in which international judges sit alongside domestic judges to adjudicate cases under a mix of international and

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domestic law) for Sierra Leone, Kosovo, and East Timor. Indonesia, under pressure from the US, established an ad hoc tribunal to prosecute those responsible for egregious crimes in East Timor (Rusli 7 August 2004), though its record of prosecution has been abysmal. A mixed tribunal began operation in Cambodia to try senior Khmer Rouge officials for crimes that occurred during their notorious 1975–9 genocidal reign (Nakashima 21 March 2006). And a permanent international criminal court formally came into existence in 2002. It received its first suspect—Thomas Lubanga, a “Congolese military official accused of abducting children and turning them into soldiers and sex slaves” (Simons 19 March 2006)—on 17 March 2006, and has had cases referred to it by the Congo, Uganda, Central African Republic, and the UNSC (Darfur, Sudan). Several countries have dealt with crimes committed during periods of non-democratic rule by creating truth and reconciliation commissions and other non-judicial means to mete out justice, among them Argentina, Bolivia, Chile, El Salvador, Haiti, South Africa, Uganda, Sierra Leone, East Timor, and Uruguay (Cassese 2003: 10). Additionally, domestic courts continue to prosecute individuals suspected of committing international crimes (see Cassese 2003; Hirsh 2003). In early 2001, for example, Mexico extradited a former Argentine navy officer to Spain to face charges of genocide, torture, and terrorism against Spaniards— the first ever such extradition based on genocide (Weiner 3 February 2001). And, poignantly, state leaders no longer enjoy immunity: Rwanda’s Kambanda, Chile’s Pinochet, Chad’s Habré, Yugoslavia’s Milosevic, and Iraq’s Hussein have faced or face possible prosecution. In short, the disaggregation of world politics in the form of individualizing responsibility for egregious crimes reveals an important ethical advance in contemporary political affairs—an advance that improves upon usurpations of power and law such as the 1960 Israeli kidnapping of Adolf Eichmann from Argentina to face trial and eventual execution for crimes committed in conjunction with the Holocaust, as well as Washington’s kidnapping of Humberto Alvarez-Machain in 1990 from Mexico to face charges of murder and drug trafficking in the United States. Codification of norms surrounding individual responsibility evinces the progressive development of the infrastructure of international law and international relations. With regards to international relations, we might hope that the individualization of crimes might deter the use of state sanctions that usually harm innocent populations. Sanctions, favored by policy officials, illegitimately transfer responsibility for crimes (real and imagined) from governments to people. Not only do civilians generally bear the brunt of sanctions, but they are expected, quite unrealistically, to overthrow odious governments—a daunting task especially in the face of biological and chemical weapons, systematic use of torture, and militaries wed to dictatorial and despotic regimes. International criminal law thus performs an important normative role (in realizing the aims of both democratic sovereignty and international relations) by dissociating the crimes of specific persons from

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an alleged collective guilt of states. With regards to international law, we might venture to note that as an “aggregate of the legal norms governing international relations” (Weil 1983: 413), it not only plays a crucial role in cohering practices of sovereignty with normative expectations of community, but also structures the very environment within which states and other actors operate. International law thus appears to be a barometer of public values or, as I framed them in Chapter 2, democratic goods. The latest development in international (criminal) law comes in the form of the ICC, which manifests a central insight of Rawls: all reasonable, decent peoples can be expected to harness a “common good idea of justice that assigns human rights to all its members” (1999: §12.2, p. 88). Erection of the ICC, a permanent institution (of last resort)—“perhaps the most innovative and exciting development in international law since the creation of the United Nations” on one account (Schabas 2004: 25)—culminates nearly eighty years’ work. In 1920, the League of Nations’ Advisory Committee of Jurists called for the creation of a court with jurisdiction over offenses “recognized by the civilized nations but also by the demands of public conscience of civilized nations” (quoted in ibid.: 4f.), but the League Assembly called the proposal too premature. The assassinations of Yugoslav King Alexander and French Minister M. Barthou in Marseilles on 9 October 1934 spurred the League to accept a French request for serious inquiry into development of an international criminal court. Work culminated in the 1937 Convention for the Creation of an International Criminal Court, itself the result of collaboration between the Advisory Committee of Jurists, the International Law Association, the International Association of Penal Law, and the International Parliamentary Union (which drew up its own draft international legal code in 1925), but the convention failed to come into force for it could not muster a sufficient number of ratifications (Chopra 1999: 8). During World War II, four international meetings between 1941 and 1944 produced draft statutes, but it was the Nuremberg and Tokyo trials that incited interest in the establishment of such a court. Following the Nuremberg Trials, the UN requested the International Law Commission (ILC), “a body of experts named by the UNGA and charged with the codification and progressive development of international law,” to draft both a statute for a permanent international criminal court as called for by Article VI of the Genocide Convention, and a “Code of Crimes Against the Peace and Security of Mankind” (Schabas 2004: 8).15 The ILC submitted a draft statute to the UNGA in 1954, but Cold War tensions suspended further work. In 1989, the UNGA asked the ILC to recommence the project, which culminated in a 1991 draft criminal code and, in 1992, commencement on a draft statute, which the ILC called both “desirable” and “feasible” (Chopra 1999: 10). Successive redrafts between 1993 and 1994 focused specifically on “the crimes over which the court would have jurisdiction.” In 1996, the Preparatory Commission for an ICC began consideration of complicated

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issues, including “the principle of complementarity between national and international jurisdiction”; “state acceptance of the court’s jurisdiction by ‘opting-in’ or ‘opting-out’”; “the powers of the prosecutor”; and “recognition by states of the ICC’s judgments” (ibid.: 11). The ILC formally presented to assembled states in Rome in June 1998 a draft statute which was subsequently adopted by 120 states. Canadian Foreign Minister Lloyd Axworthy called this extraordinary event a manifestation of “soft power,” meaning “a strong moral message, reinforced by . . . close partnership with nongovernmental organizations capable of mobilizing public opinion” (Roth 1998: 45). At least 8 states objected, however, including the United States, Iran, Iraq, China, Libya, Algeria, Israel, and Sudan. With ratification of the Statute by 66 states, the court became a reality on 11 April 2002 (Crossette 11 April 2002). Per Article 126, the court officially convened on 1 July 2002. As of 15 April 2006, 100 states have ratified, and an additional 39 have signed, the statute. The ICC as designed complements national penal systems and has jurisdiction over genocide, crimes against humanity, and war crimes.16 Once member states hash out an agreeable definition, aggression will be added to the court’s jurisdiction.17 States parties considered but omitted from inclusion in the statute other international crimes which, though heinous, were considered “treaty crimes” bolstered by their own mechanisms of enforcement and prosecution (Cassese 2003: 24f.; Schabas 2004: 26). The ICC was thus reserved for consideration of “the most serious crimes of concern to the international community as a whole” (Rome Statute 1998: Preamble). Thus the Court affirmed a hierarchy of crimes—a graduated normativity, as Prosper Weil calls it (1983)—with war crimes, crimes against humanity, and genocide presiding at the pinnacle. These crimes are thus jus cogens norms, or “peremptory norm[s] of general international law” which are “accepted and recognized by the international community of States as a whole . . . from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” (Vienna Convention on the Law of Treaties 1969: Article 53). As it stands, the ICC is a flawed though no less essential institution. It is flawed because the statute was diluted owing to American revisions and compromises. It is essential, for clear humanitarian reasons.18 Despite compromises in favor of the American position, Washington rejected the statute, though former President Bill Clinton permitted the chief US negotiator to sign the statute at the proverbial eleventh hour, on 31 December 2000.19 President George W. Bush subsequently “erased” the US signature20 and, for a time, actively sought to derail the Court, even withholding approval of new, and renewal of existing, UN peacekeeping missions for more than a year if Americans were not granted immunity from prosecution. At Rome, the Clinton Administration forced through a series of measures designed to weaken the Court and secure American interests (Roth 1998: 45f.).

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The first compromise allows the UNSC to halt any prosecution by the court for a [renewable] period of twelve months, which effectively politicizes criminal investigations (Article 16). Second, cognizant of the UNSC’s lack of will to act in the face of horrendous atrocities, the sixty like-minded governments responsible for pushing through the statute empowered the ICC prosecutor “to initiate prosecutions proprio motu,” Article 15(1). Washington, however, objected. An Argentine/German proposal worked around the objection by requiring “that all decisions to launch an inquiry or prosecution be subject to review by a special three-judge panel” (ibid.) Still, the Clinton Administration, driven by an importunate Pentagon, rejected the compromise. Third, the US rejected the ICC’s definition of war crimes, which were culled, per Article 8(2a), from the Geneva Conventions of 12 August 1949 of which the United States is party. Washington balked, for under the definition an American quite conceivably could be charged for killing a prisoner or bombing civilian targets, or for torturing Iraqi prisoners at the nownotorious Abu Ghraib prison in Baghdad. As well, according to Roth, the Pentagon worried about the “rule of proportionality under international law, which prohibits a military attack causing an incidental loss of civilian life that is ‘excessive’ compared to the military advantage gained” (ibid.: 46). Under this rule, US officials could be charged for, say, the bombing of Iraq’s electrical grid, which was said to have killed a “disproportionate number of civilians, including the thousands said to have died because of the resulting loss of refrigeration, water purification, and other necessities of modern life”; “the wholesale burning of El Chorillo neighborhood in Panama City and the death of some three hundred civilians during the US invasion of Panama”; the US bombing of a Serbian train during NATO’s Kosovo campaign; and casualties incident to the American bombing of Afghanistan. Quite disturbingly, American officials “successfully redefined the proportionality rule to prohibit attacks that injure civilians only when such injury is ‘clearly excessive’ in relation to the military advantage” (ibid.). The arrogance (and irony) of such a position can only be appreciated when read against Attorney General John Ashcroft’s outrage over Timothy McVeigh’s statement in April 2001 in which McVeigh described the death of children in the Oklahoma City federal building bombing as “collateral damage”—the same term used by American military and government officials to describe civilian deaths incidental to US military campaigns. Fourth, the issue of jurisdiction proved most contentious. While the Germans “noted that genocide, crimes against humanity, and war crimes are all crimes of universal jurisdiction,” the South Korean delegation sought to placate the US by disposing of the concept altogether. Instead, Seoul proposed that ICC jurisdiction be based on the territorial principle, which prescribes jurisdiction for crimes that occurred within the territory of a state party, per Article 12(2a), and the national principle, that is, jurisdiction for

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crimes committed by a national of a state party, per Article 12(2b). But this did not mollify the Clinton Administration. It is unclear why, since, under the doctrine of universal jurisdiction, American soldiers are already vulnerable to prosecution in foreign courts. As a matter of fact, the (third) Restatement of the Foreign Relations Law of the United States, §404 (1987), specifically recognizes universal jurisdiction over crimes of a universal nature—piracy, slave trading, terrorism, war crimes, crimes against humanity, and genocide—which, as the restatement notes, rest on the sheer abomination and affront to humanity these crimes represent (cited in Carter and Trimble 1991: 771). Further, one may glean from US action that terrorism and drug trafficking constitute universal crimes; Washington has gone so far as to claim “the right to try foreign terrorists and drug traffickers without the consent of their governments,” a claim that was subsequently upheld by the US Supreme Court in 1992 (United States v. Humberto Alvarez-Machain 1992). Indeed, Article 13 of the statute permits the UNSC to refer any situation to the ICC. This effectively substantiates the concept of universal jurisdiction (so long as the Permanent Five of the UNSC agree), as the case with Darfur, Sudan attests since Sudan is neither a party nor a signatory to the statute. Despite these flaws, the ICC quite potentially will become a substantial pillar of twenty-first century international legal and political relations. The Democratic Republic of the Congo, Uganda, and the Central African Republic have referred cases to the court; the UNSC—with a US vote— referred a list of fifty-one individuals suspected of committing crimes in Darfur, Sudan to the court. Successful prosecutions could prove quite instrumental in substantiating the court’s legitimacy. In my view, the early history of the court could not have been more positive. Had the prosecutor, with the assent of the pre-trial division, opened an investigation absent state consent, an international politics of antagonism might have well reared its ugly head. Instead, states willingly referred their own cases to the ICC, effectively lending it legitimacy in the eyes of the international community, and perhaps even demonstrating that the ICC will be a court for the underdeveloped and developing nations of the world. True, the fact that the ICC’s jurisdictional patrilineage owes not to universality but to nationality and territoriality indicates the tension between political will and international law,21 between particular state interest on the one hand, and a more global, universal justice gradually codified in international law on the other (Charney 1999: 452f.). But given the history of piracy and slave trading, democracy and human rights, conflict diamonds and the environment, among many cases, there is no reason to believe that the ICC will not succeed in meting out justice to those who commit egregious crimes. Importantly, the ICC was constructed specifically to complement national legal systems except in instances when incontrovertible evidence leads to the determination that a state is unwilling or unable to prosecute the accused, or in the event an investigation is staged. The

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principle of complementarity assures the ICC does not circumvent state rights, but rather strengthens the rule of law both domestically and internationally. In this regard, the statute itself might prove to have a standardizing effect on national legal systems. At the very least, as a central institutional structure of international life, the court gives teeth to two central ideas. First, that crimes of a universal nature—that is, affronts to the dignity of life and freedom—demand universal enforcement. Second, the ICC may effectuate a standardization of criminal law; Article 17 of the Statute effectively grants primacy to the ICC for determining whether or not a national prosecution has been properly carried out, with due regard given to fairness and impartiality of proceedings; the rights extended to a defendant; unjustified delays in proceedings; and the ability of a domestic court system to function effectively. Though dominant political interests often weigh against inclusion of and embedding international common good measures in an imperfect system, changes in attitudes, interests, and identities— notoriously difficult to affect—do occur.

“Conflict diamonds” and international diamond certification [Resistance] is beginning to happen on a lot of issues at the UN: we have to keep coming back to saying that the UN is a global institution and the problems with conflict diamonds are global problems; they’re not just African problems. South African Ambassador to the UN, Dumisana Kumalo22 The true cause of the civil wars raging in some African countries is not so much the loud discourse of grievance, but the silent force of greed. Zimbabwean Ambassador to the UN, Mishech Muchetwa23

On 1 December 2000, the UNGA approved a South African initiative calling on all member states “to implement fully Security Council measures targeting the link between trade in conflict diamonds and the supply to rebel movements of weapons, fuel or other prohibited materiel.” Specifically, the resolution sought the creation of a “simple and workable international certification scheme for rough diamonds,” reflecting “the need for national practices to meet internationally agreed [upon] minimum standards.” Adopted without vote, the resolution represented a substantial global measure to break “the link between the illicit transaction of rough diamonds and armed conflict, as a contribution to prevention and settlement of conflicts” (UNGA Resolution 55/56, 1 December 2000). By prohibiting the sale of diamonds mined in regions under the control of “forces or factions opposed to legitimate and internationally recognized governments,” the proceeds of which are “used to fund military action in opposition to those governments,”24 the international community expressed an urgency to break the cycle of violence in such countries as Angola, Sierra Leone,

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the Democratic Republic of the Congo, and, most recently, Liberia, which has killed hundreds of thousands of people and displaced millions more.25 As delegates to the UNGA debate noted, diamonds do not kill; those who use military hardware, purchased by proceeds from diamond sales, kill. Global Witness, a London-based non-profit organization, generated public interest in conflict diamonds in December 1998.26 Despite the imposition of a UN ban on arms and fuel sales to the National Union for the Total Independence of Angola (UNITA) in 1993, and an embargo against diamonds “not controlled through the Certificate of Origin issued by the Government of Angola,”27 the report exposed UNITA’s efforts in funding and intensifying the Angolan civil war. Between 1992 and 1998, UNITA sold an estimated $3.7 billion worth in diamonds on the world market. In that same period, conflict claimed the lives of 500,000 civilians; displaced 3.5 million people within Angola; and forced 300,000 to flee to neighboring countries (Jeter 9 May 2000). An investigative report issued by the Canadian Ambassador to the UN, Robert Fowler, implicated Zairean President Mobutu Sese Seko, a CIA-backed dictator, in funneling weapons to UNITA (CNN 31 October 2000; Parker et al. 2000). After Mobutu’s overthrow in 1997, Togo’s then-President, Gnassingbe Eyadema, and President Blaise Compaore of Burkina Faso became UNITA’s conduit. Sanctions imposed on Angola theoretically if not practically should have prevented money from flowing into the country; how rebel groups paid for “materiel” somehow “escaped” officials. Likewise, rebels in Sierra Leone handsomely profited from diamond sales. The Revolutionary United Front (RUF), which controlled 90 percent of the diamond mines thanks to the Lomé Accords, a pitiable 1999 US-sponsored peace deal which effectively gave the diamond fields to RUF leader Foday Sankoh, used the $70 million from 1999–2000 sales to fund an expanding militia and revitalize the civil war (CNN 12 January 2000 and Project Underground 20 July 2000).28 Belgium’s Antwerp-based Hoge voor Diamant (Diamond High Council or HRD), the diamond industry umbrella regulatory group, confirmed government exports of 8,500 carats in 1999, and RUF exports of 770,000 carats.29 Personal diaries seized after the capture of Sankoh in May 2000 implicated Liberian President Charles Taylor and Burkina Faso’s Compaore in the illicit diamonds-for-arms scheme. Taylor’s motivations stemmed from a need for funds to pay for arms purchased from Libya. “A western intelligence officer said Liberian bank accounts under observation showed payments from Liberia to Libya”; irrefutable evidence of this transfer forced the EU in June 2000 to “withhold $47 million of aid to Liberia” (Parker et al. 2000). Swiss customs officials corroborated the findings. By August 2000, Liberian diamond exports to the Swiss processing facility increased to $30 million, doubling the previous twelve-month figure. “The quality of some stones,” the official added, “makes it clear that they did not come from Liberia” (United Nations Foundation 10 August 2000).

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Further, a report issued by an international panel of experts to the UNSC showed that Gambia, though it has no diamond mines of its own, suddenly “became a major exporter of diamonds” (cited in Crossette 21 December 2000). The Ukraine, which was “barely mentioned in the report” as a source for arms to Sierra Leone rebels, “blocked the report from being introduced . . . in the Security Council as planned.” Despite this delaying tactic, the sanctions committee, however, recommended that “the Council embargo all diamonds from Liberia until it can prove that it is not trafficking in gems from Sierra Leone or arming the insurgents there with proceeds of illegal sales” (ibid.). During the same period (1999–2000), 75,000 civilians were killed, one million displaced, and thousands deliberately mutilated, often by amputation, or used as sex slaves, and thousands more forced into diamond-mining labor (see Human Rights Watch 1998; Parker et al. 2000; and US Department of State 2000). Former UN official Brian Urquhart commented that the UN, the eternal fig leaf of the world’s powers, was put into Sierra Leone to guarantee a slap-dash peace agreement that turned out not to exist except on paper. It was particularly irresponsible of Western powers to insist [in 1999] on the inclusion in the new government of Foday Sankoh, a rebel leader who is notoriously brutal and corrupt. (2000: 20) The diamond industry also shouldered blame because it failed to utilize available technologies for diamond-trade control. Rough diamonds have particular, unique geophysical characteristics, enabling experts to pinpoint the geographic regions from which the diamond originated. Cutting and polishing, however, obliterates those characteristics—hence the imperative to identify and label rough diamonds as legitimate (Global Witness June 2000). Global Witness chastised the four diamond-industry centers— Antwerp, Tel Aviv, Bombay, and New York—for putting greed and profit before human rights by not demanding that rough diamonds be certified by governments. Both Partnership Africa Canada (PAC) and Global Witness exposed “the ease in which conflict diamonds have entered the . . . market” through Antwerp, the world’s largest diamond trading center, and chastised officials for “ignor[ing] signs that many of the diamonds purchased from Liberia and other countries had clearly been smuggled out of Sierra Leone” (CNN 12 January 2000; Zaire Government 2000).30 Embarrassment motivates: negative publicity initiated a surprising turnaround in just a few months. The Belgian Government and HRD took “an impressive lead in trying to tighten up controls in Antwerp and in putting forward ideas for helping to improve controls from exporting countries.” Tel Aviv and Bombay, initially resistant to reform and charged with

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“fail[ing] to offer practical solutions on this issue” (Zaire Government 2000), reversed their position under threat of expulsion at a July meeting of the International Diamond Manufacturers Association (IDMA) and the World Federation of Diamond Bourses (WFDB) in Antwerp. Both IDMA and WFDB approved a resolution that created “an international system [which became known as the Kimberley Process Certification Scheme] to certify as legal rough diamonds bound for export and a global electronic registry to monitor the export and import of these gems” (CNN 19 July 2000). The step, welcomed by such concerned countries as Great Britain and Canada (Greenstock 1 August 2000; see also Heinbecker 20 September 2000), took into account the unease of such countries as Namibia, South Africa, and Botswana which sell “ethical diamonds,” the proceeds of which bolster their economies and sustain government-run social programs. Fear that consumers would boycott diamonds originating from those countries forced the IDMA and WFDB to implement measures to ensure the continued sale of diamonds from those countries. But getting the industry to budge proved an arduous, though not insurmountable, task. South African-based DeBeers, the world’s largest diamond mining corporation,31 estimated that conflict diamond sales accounted for only four to seven percent of world diamond production (Parker et al. 2000), and hence opposed industry-wide regulation.32 The Chairman of Global Witness called DeBeer’s position a “sad indictment of the industry” (Zaire Government 2000). But DeBeers disregarded the fact that public opinion turned against the diamond industry. By April 2000, the “Fatal Transactions Consumer Awareness Campaign,” comprised of Global Witness, Niza, Medico International, and Novib, convinced a significant portion of the diamond-buying public to insist on “conflict-free diamonds” or else boycott. Consequently, the industry’s reputation plummeted. A shift in world public opinion . . . [made it clear that] no longer [was] the . . . soaking up of open market goods from areas of conflict deemed to be an inevitable consequence of the need to stabilize the world price of diamonds. (ibid.) Both governments and consumers “ceased to accept this as an argument for non-interference” (ibid.). Furthermore, the appearance of synthetic diamonds on the market undermined the confidence of consumers in the diamond industry, which translated into sluggish sales. In April 2000, US government regulation appeared on the horizon. US Congressman Tony Hall, Democrat of Ohio, introduced a bill in the US Congress—the “Consumer Access to a Responsible Accounting of Trade Act” (or CARAT)—proposing an importation ban on diamonds not certified by internationally recognized governments.

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Such developments convinced the industry to agree to an “international certification and monitoring system to control the import/export of rough diamonds” (World Diamond Congress 16 July 2000). The Interlaken Declaration on the Kimberley Process Certification Scheme, formally adopted on 5 November 2002 by thirty-six states and the EU (Interlaken Declaration 2002),33 demands rough diamonds—diamonds mined directly from the earth, untreated, unpolished, and uncut—be accompanied by a “certificate of origin” on forgery-resistant security paper issued by the government in which the diamond was mined. “A matching numbered label on the sealed parcel of rough diamonds, with a warning that any tampering is a violation of the Security Council sanctions [on Angola, Sierra Leone, and Liberia], must be returned by the recipient.”34 Diamonds without an accompanying certificate are simply not sold or bought. In addition to the forty-three participants of the Kimberley Process, Angola and Sierra Leone have certification programs approved by the UN that have thus far proved effective. The links between the trade in conflict diamonds, arms acquisition and the fueling of civil wars, and human rights not only broaden the conception of security in the post-Cold War era, but further expose the regulatory, legitimizing logic initiated at Westphalia. Civil wars and the sale of natural resources, long considered under the aegis of a state’s “domestic affairs,” have become, in certain instances, objects of international scrutiny and management.

Sovereignty and the environment IEL aims to regulate human interventions in the environment and, in doing so, protect various aspects of the environment. Thus, we might think of IEL as constituting two broadly understood classes that roughly correspond to regulation and protection. The first class concerns subjects of IEL, which may be divided into targets and agents. By targets we mean those against whom IEL legislation and action is directed. Targets comprise poachers (of elephants, Siberian tigers, rhinos, or whales, among many endangered species); polluters (for example, corporations35 and states36); and exploiters of natural resources (for example, fisheries and the exploitation of the world’s fish reserves). By agents we mean those actors, such as international organizations, NGOs, states, individuals, and autonomous environmental organizations (Churchill and Ulfstein 2000), which help generate new IEL; provide valuable information on activities of poachers, polluters, and exploiters; and monitor compliance with existing law. Under the rubric of protection, we might identify the second class, or objects of IEL, which includes: 1

animals (e.g. the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas; and the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); see also D’Amato and Chopra 1991);

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Democratic sovereignty: history and the environment writ large, including a oceans (e.g. the 1983 United Nations Conference on Law of the Sea); b air (e.g. the 1979 Convention on Long-Range Transboundary Air Pollution and the 1997 Kyoto Protocol); c the ozone layer (e.g. the 1985 Vienna Convention for the Protection of the Ozone Layer of 1985 and the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer); d forests (e.g. the 1983 International Tropical Timber Agreement); e biodiversity (e.g. the 1992 Rio Convention on Biological Diversity); and even e climates (e.g. the 1992 United Nations Framework Convention on Climate Change).

IEL endows each with rights to exist or to be, and proclaims the obligations of all to protect and preserve the earth’s natural resources. Theoretically, the right issues from the Roman law concept of rex communis, or common property, which grants any citizen “the right to bring action (action popularis) to protect the public interest” (Glennon 1990: 33). Under the Roman legal dictum and its appropriation by contemporary IEL, humans and their organizations are fashioned as planetary stewards; as such, law must be equipped to handle claims for the protection of the commons. Thus, in some respects, regulation of human interventions in and protection of the environment approaches the status of obligations erga omnes, or “obligations that protect the common interests of a group of States and are consequently owed to the community, rather than to one or more particular States” (Annacker 1994: 131; see also Ragazzi 1997). While the view may find legal expression such as in the Nuclear Tests cases (1996) before the International Court of Justice (ICJ) and the 1992 Rio Declaration on Environment and Development, in policy terms states still find any obligation associated with environmental protection fragmented at best. Notably, though, fissures appear in this approach. In 1983 the West German government took the position that there was no need to wait until harm had been proved before North Sea pollution was regulated, and this review is reflected in the Second North Sea Declaration. This approach has been adopted in principle at other marine conventions, in [UN] sustainable development declarations, in the ozone convention, and in regional hazardous waste treaties, but the idea of ecological risk prevention remains underdeveloped. (Tarlock 2003: 394, fn. 8) Morally, rex communis ascribes intrinsic value to animals, rainforests, Amazonian jungles, deserts, even climates, as uniquely temporal features

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of our natural environment; that is, protection and preservation of them rests on their intrinsic value more than their instrumental value. The argument, called “aesthetic objectivism” by some (Glennon 1990: 7), was adopted by the UNGA and enshrined in its 1982 World Charter for Nature which declared that “every form of life is unique, warranting respect regardless of its worth to man” (cited in ibid.). Illustratively, the US Supreme Court extended protection to migratory animals in two cases, Geer v. Connecticut (1896) and Missouri v. Holland (1920), based on rex communis (Carter and Trimble 1991: 135–8), arguing in the former that there was “a common property in game” and that the state had the proper authority to regulate “as a trust for the benefit of the people.” Following this reasoning, the court ascertained in Missouri that “wild birds are not in the possession of anyone; and possession is the beginning of ownership.” Yet this right to be, bolstered as it were by regulation and protection, is selectively issued, granted to elephants and whales, northern spotted owls, and Siberian tigers, but not squirrels, pigeons, and cows. Neither are we a world of vegetarians.37 In short, the law attaches moral and legal personality to endangered species in an effort to preserve, conserve, and protect them—and thus waits until a crisis looms on the horizon. But that the right to life vis-à-vis the environment, indeed, the intrinsic value of life, is discussed at all points to a significant shift in thinking away from instrumental rationality—the view that nature is ours to dominate and appropriate. According to both Glennon (1990) and D’Amato (1991), among others, the broadening of international consciousness about the environment amounts to “opinio juris—the psychological component of international customary law” (D’Amato and Chopra 1991: 22)38—that states are required “to take appropriate steps to protect endangered species,” and the environment writ large, including the marine environment, global wetlands and rain forests, unoccupied islands, and Antarctica, among others (Glennon 1990: 30). Glennon doubts the efficacy of applying moral arguments to, for example, the ivory trade. On his interpretation, aesthetic objectivism relies on the subjective experience of nature, and is “conditioned by such things as kind and adequacy of sensory receptors, imagination, emotional temperament, contemplative capacity, age, education, knowledge of the functions of natural objects, and the aesthetic standards and tastes of society” (ibid.: 7). While many may find the aesthetic value of the elephant compelling (indeed, many central and southern African countries rely on revenue generated by tourism), equally valid moral arguments concerning human needs may trump the moral rights of elephants. Take, for example, the claims of Gary Waïtari, an African nationalist: Meat! It was the oldest, the most true and sincere, and the most universal aspiration of humanity . . . To the . . . black man [the elephant] always meant merely meat . . . The idea of the “beauty” of the elephant, of the

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Democratic sovereignty: history “nobility” of the elephant, was the idea of a man who had enough to eat, a man of restaurants and of two meals a day and of museums of abstract art—an idea typical of a decadent society . . . (quoted in ibid.)

Amartya Sen provides another striking example: Bordering on the Bay of Bengal . . . there is the Sundarban—which means “beautiful forest.” That is the natural habitat for the famous Royal Bengal tiger, a magnificent animal . . . Relatively few of them are left now, but the surviving tigers are protected by a hunting ban. The Sundarban is also famous for the honey it produces in large clusters of natural beehives. The people who live in the region, desperately poor as they are, go into the forests to collect the honey, which fetches quite a handsome price in the urban markets—maybe even the rupee equivalent of fifty US cents per bottle. But the honey collectors also have to escape the tigers. In a good year, only about fifty or so honey gatherers are killed by tigers, but that number can be very much higher . . . While the tigers are protected, nothing protects the miserable human beings who try to make a living by working in the woods . . . (2000: 146) Prima facie, the argument pivots on culturally relativist claims: wealthy northerners with “refined” aesthetics chastising poorer southerners for their failure to appreciate certain natural elements that the northerners deem intrinsically valuable. But this argument appears glaringly weak, since it emanates from countries that are the primary producers of the world’s greenhouse gases and other pollutants, rape the forests and the oceans, deplete the world’s fishing reserves, and are the primary markets for the products of endangered species. Even if we disregard the facts of Western consumption, the cultural relativism argument reveals a particular lack of sophistication. Merely pitting advantaged and disadvantaged groups with diverse conceptions of goods fails to get at broader, more substantive arguments. It is no surprise that the Sundarban case opens Sen’s chapter on democracy in which he deftly links poverty and deprivation—unfreedoms—to indisposed authoritarian political systems. Yet India is a democracy. Might we then assume that extreme poverty such as the sort in Sundarban that compels individuals to risk their lives for, literally, fifty cents, does not occur in democracies? Of course not. But this isn’t Sen’s point. He contends that one might be inclined to sacrifice freedoms and rights in favor of fulfilling economic needs through authoritarian measures. True, there are difficult choices to make, as in the case of the honey gatherers and the tigers. But these choices are often made in the context of corruption and government structured, poorly planned welfare, employment, and food distribution programs. Resolutions of problems are

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never black and white; being for tigers should not pit one against people, or vice versa. Conservation methods must be tied to effective programs that help the poor—a position consecrated in the 1972 United Nations Conference on the Human Environment in Stockholm (Ragazzi 1997: 154f.). In this regard, education might provide a solution to the “wonton slaughter” of animals. In Burkina Faso, the expansion of the Sahara Desert has pushed farmers further south, where they have encroached on the seasonal migratory corridors of elephants. According to the country’s elephant specialist, Simon Sawadogo, “the farmer will never recognize that he was in the wrong. The earth belongs to him and the animal should know where not to go” (quoted in Onishi 10 May 2001). Yet the answer to the problem (of elephants destroying crops) lies not in their slaughter. Government-sponsored education programs could instruct farmers about the location of migratory corridors and arrange farming land around them, not in their paths. Perhaps these programs could be funded through debtforgiveness or debt-swap programs in which funds once earmarked for debt repayment would be redirected toward educational and conservation programs. The cases illustrate the complex linkages between democracy, human rights, environment, security, and sovereignty. The report of the Brundtland World Commission on Environment and Development, published under the title Our Common Future, articulated these links under the concept “sustainable development” (Brundtland World Commission on Environment and Development 1987; see also Conca 1994 and 1995; Raustiala 1996). Of the Brundtland Commission, Falk notes that it effectively contributed to the formation of a global consensus: the environmental crisis can be managed on behalf of sustainable development, but only if states cooperate as never before on behalf of the general planetary interest, and this will happen only if pollution [and conservation] is [are] understood to encompass poverty, thus placing the economic burdens of adjustment on the richer countries and promising that Third World development prospects would not be diminished by efforts at environmental protection. (1999: 18) In this vein, Schreurs ponders that “. . . as forests take on an increasingly global importance, developing states are finding that claims of sovereignty can work to their advantage in winning concessions from advanced industrialized states on financial and technological transfer issues” (1997: 185). To this end, “debt swaps,” or “monetary concessions by lenders in exchange for enhanced resource management by borrower states that are unable to keep current on debt payments,” were invented in the late 1980s to prevent the further disappearance of tropical rain forests in Central and South America. In 1990, the World Wildlife Fund (WWF) purchased $2.1 million

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Democratic sovereignty: history

of Madagascar’s debt to Western countries “in return for expenditures of local currency on several conservation projects.” The WWF and Zambia arranged a $2.27 million “debt-for-nature” swap “in return for the Government’s agreement to expend an equivalent amount in local currency on conservation, including protection of the rhino and elephant.” Similar projects have been instituted in cocaine producing nations in South America, contingent on agreement by those countries to “fund crop substitution and eradication programs” (quoted in Glennon 1990: 35f.). (Similarly, the Jubilee campaign initiated by the Vatican and human rights groups in 2000 implemented a related program. Debt forgiveness by commercial banks and Western (Northern) governments requires that the world’s poorest countries earmark funds that would have otherwise serviced debt for social welfare programs.) The fact that much of IEL remains enforceable primarily by the state might strengthen sovereigntist arguments that emphasize state consent over and above any appeal to universalism or justice. Environmental law—or any international measure for that matter—succeeds only because states have specifically consented to the law and are willing to enforce it. In part this is true. This positivist element of international law, while striking some as the cause for international law’s relative weakness, actually might propel international law’s effectiveness. Why? Because international law reflects state consensus on shared values; law is not imposed by an external legislature or power. Thus, states are more inclined to abide by international legal dictum than not. Unfortunately, though, the positivist approach has ostensibly obviated the need for discussion of international legitimacy and, concomitantly, the democratization of international relations and processes, until recently. But non-state actor influence on and participation in the development of IEL, as well as the concern for securing broader, democratic goods, negates that view, thus leading to more serious consideration of legitimacy in international relations. The argument then emphasizes the fact that for a state to be in good standing, it must abide by certain regulations, engage in certain behavior, refrain from other forms of behavior, and promote and administer wider, democratic concerns. Here, the progressive development of international law through the extension of obligations erga omnes—obligations owed to all—and thickened conceptions of rex communis substantiate an ever-evolving international consciousness and, moreover, action undertaken to those ends. With such consciousness comes the expectation of enforcement, which, in turn, generates beliefs of legitimacy that directly translate into citizen support of governments. In this regard, Weiss (2002: 811f.) identifies the North American Agreement on Environmental Cooperation in conjunction with the North American Free Trade Agreement (NAFTA) and the Permanent Court of Arbitration as according individuals the legal right to invoke state responsibility for violations of IEL.

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The argument pivots on the differentiation between specific and general consent. Specific consent refers to consent by states “to particular obligations or decisions—for example, by ratifying a treaty, joining consensus on a UN resolution, or accepting a court’s jurisdiction in a particular case,” whereas general consent refers to consent to “an on-going system of governance—for example, by ratifying a treaty such as the United Nations Charter, which creates institutions with quasi-legislative and adjudicatory authority” (Bodansky 1999: 604). While IEL has thus far been generated through specific consent on particular issues (one need only think of the specificity of regimes governing, for example, the trade in parts or wholes of endangered species, biodiversity, and air and water pollution), the net effect of such agreement poses a different sort of question. Following Herbert Marcuse, we might ask if enough quantitative changes effect a qualitative change (in international governance). Specifically, we might ask if multiple instantiations of specific consent add up to an evolving international consciousness regarding the global commons to an opinio juris that states are required to protect the environment. Perhaps we are inclined to believe that they do. Perhaps both the question and the answer are misguided in that they presuppose an inductive causality: that specific agreements gradually add up to or approximate opinio juris. Deductively, we might argue the reverse: that the agreements are instantiations of a universal consciousness, of an opinio juris that states are obligated to protect the environment. Given interventions in international politics by ordinary peoples individually and through their associations, the scope of inter-state relations has changed from the insular world of power politics and brute force to a more open, inclusive set of relations that at least gives voice to (if not acts upon) issues of justice and order, legitimacy and democratic governance, social individuality and sustainable development. The opinion—morally motivated or otherwise—in other words, might just have emanated with ordinary peoples, not with states. Schreurs makes a similar, though less forceful, claim. “Despite countries’ frequent use of sovereignty claims to oppose international environmentalregime formation, growing international and grassroots pressures [produce] changes in environmental values, institutions, and policy . . . [A] more global . . . view of the environment is taking root, albeit slowly” (1997: 184f.; see also Bodansky 1999). Compare Keohane (1993): states entering agreements such as ones protecting the environment do not undermine their sovereignty, but strengthen their “formal sovereignty” by upholding their legitimacy claims. Here, too, Conca (1994) reiterates the claim: a state may even gain “authority, legitimacy, and control” through participation in such agreements because—in my idiom—they reflect an international common good. By emphasizing the need for a ruler to uphold his or her legitimacy, it seems that Krasner could likewise defend such a view. However, by defending a form of insular and insulated rule, he asserts that such agreements in the

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end restrict the range of policy options of the sovereign and hence undercut sovereignty. True, countries attempt to undermine common good sustaining measures (real democratic goods). That the second Bush administration announced it would not accede to the 1997 Kyoto Protocol on reducing greenhouse gases, in part because Congress, led by ultra-conservatives fearful of diminishing American sovereignty and imposing undue economic burden on American companies, indicates the sharp distinction between particular interests and a common good.39 Compare this decision to Norway’s announcement in January 2001 that it will “lift a ban on exports of whale products like blubber in defiance of international restrictions” (Reuters 16 January 2001). Though the Norwegian government never ratified CITES, it nevertheless upheld the CITES trading ban. Norway even developed a DNA register of whale genetic material to monitor the trade (primarily to Japan, Iceland, and Peru). Analogous to the certification scheme for conflict diamonds and the debtswap for environmental conservation programs, Norway’s DNA register makes use of the world’s resources in a responsible way.40 Responsible international environmental governance need incorporate peoples’ concerns, a broader sense of justice to trump the sovereign-centric arguments clung to by states, and autonomy of international environmental agencies to at least monitor, if not enforce, compliance with agreements, and generate new rules, procedures, and regulations contingent on available technologies and knowledge. While many doubt the efficacy of such institutions, Churchill and Ulftsein identify at least ten multilateral, autonomous institutional arrangements, and nine regional autonomous institutional arrangements constituted since 1970 with effective enforcement and norm generative powers. Importantly, they maintain that these relatively unnoticed institutions, which form a cooperative-based institutional framework, “may be regarded as an aspect of a more general development in international law” tending toward “more informal,” “more flexible,” and more “innovative [arrangements] in relation to norm creation and compliance” than traditional international organizations (2000: 623). Among the institutions they cite are those governing wetlands; marine pollution; endangered species; protection of migratory species; the ozone; transboundary movements of hazardous materials; climate change and greenhouse gas emissions; biological diversity; desertification; the trade of certain hazardous chemicals; the seas; air pollution; transboundary watercourses and international lakes; sea turtles; elephants (including ETIS—or the Elephant Trade Information System—and MIKE—Monitoring the Illegal Killing of Elephants); pollock; and cetaceans (ibid.: 623f., 651, fn. 3–25). Daniel Bodansky’s treatment of the “Montreal Protocol on Substances that Deplete the Ozone Layer” strengthens the point, for Montreal represents the first quasi-legislative mechanism in international environmental governance (1999: 608). “[O]nce a chemical is subject to control measures, those controls may be tightened

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(‘adjusted’) by a qualified majority vote,” which then “bind all parties . . . not just those that give specific consent” (ibid.: 607f.). Bodansky suggests that the regime is so strong not only because “the science is much better understood and, in most cases, replacement technologies exist at a reasonable cost,” but also because the institution itself is designed to respond in flexible ways to changing state action, interest, and science. On their views, then, innovative forms of cooperation to meet international demands need not take one generalized form (that of formal, structured organization of international character) in order to effectuate a qualitative transformation in relations between states. How this translates into stronger IEL is piecemeal. Such autonomous institutions—legitimate institutions reflecting a common good—generate a normative structure informed by a global consensus of the need for environmental protection and preservation (if not for intrinsic value, then at least for future instrumental value considering that we need trees for lumber and paper, rainforests for, among other things, oxygen production, etc.). Instrumentality —and rational actor modeling, quite in line with a state centric/specific consent argument—thus provides a better explanation for environmental regulation and protection than aesthetic objectivism. But the fact that all states are bound by adjustments points to an emerging opinio juris of the necessity for international governance structures, especially in the environmental arena.

Conclusion Our list of regulative principles of legitimacy is not exhaustive. We might include the 1997 Ottawa Convention, spearheaded by grass-roots movements, which bans the use, stockpiling, production, and transfer of landmines, thus limiting the tools of violence that states may employ. As of 20 March 2006, 154 states have ratified, accepted, or acceded to the Landmines Treaty.41 Following Mexico’s unilateral moratorium on debt repayment in 1982, governments, international financial institutions, citizen groups, religious organizations, charities, and NGOs pushed for ways to avoid unilateral renunciation on debt repayment.42 At a meeting of the G-8 in Cologne, Germany in 1999, Jubilee 2000—a global movement aimed at getting wealthy nations and financial institutions to forgive the debts of poor countries—submitted a petition of 15 million signatures demanding debt forgiveness in exchange for human development projects such as health care, education, agriculture, and road-work, among others. There, the US and the G-7 agreed . . . to forgive 100 percent of the concessional loans [“loans granted at interest rates of 1 percent or less”] and 90 percent of nonconcessional loans [“extended at market rates by agencies such as the

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Democratic sovereignty: history US Export-Import Bank to promote sales of US agricultural and manufactured goods”—a neo-imperialist policy at best]. (World African Network 1 October 1999)

Later that year during a joint meeting of the IMF and the World Bank, President Bill Clinton announced that Washington would forgive 100 percent of the debts of thirty-five of the world’s poorest countries—an act we might call sovereign decisions for a global good. Or we might consider the Coalition to Stop the Use of Child Soldiers, formed in 1998 by Amnesty International, Human Rights Watch, the International Save the Children Alliance, Jesuit Refugee Service, the Quakers, and Terre des Hommes, which spearheaded the effort to push UN member states to adopt the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts (Reuters 8 April 2001). These cases underscore the extent to which the struggle for democratic goods in the guise of legitimizing sovereignty practices has become an important, indelible feature of global politics. Let us consider, then, their implications. First, democratic sovereignty does not assume that sovereignty and the state automatically (and incorrectly) hinder the attainment of justice (Booth 1991; Charney 1993; Elshtain 1991; Reus-Smit 1999). Regulative principles of legitimacy have over time modified understandings and practices of sovereignty. The manner in which I have formulated this enterprise advances the notion that sovereignty remains not a secondary variable or an ontological given, but a primary location for domestic and international normative evolution reflective of deeply rooted social practices. To be sure, this is but one aspect of international change; war, revolution, and other violent activities also account for significant disintegrations and reconstellations of sovereignty practices. While democratic sovereignty may focus on anti-violent and anti-exclusive practices,43 it is not averse to employing state power resources to defend and “enforce” claims of justice. Sometimes power can be—and has been—used as a force for positive moral change; think of the use of force against slaveholders to liberate slaves versus the use of force by slaveholders to oppress slaves. Groups that commit crimes against others and consistently fail to cohere behavior with generally accepted norms also invite force. For instance, the Ku Klux Klan (KKK), which has lynched innocents, has undercut the equal liberties and lives of some citizens; its actions cannot be justified by appeals to equal liberty and must, in certain instances, be forcibly suppressed. States that engage in genocidal campaigns, systematically torture political opponents and members of undesirable ethnic, social, religious, and racial groups likewise invite intervention for the common good. These examples recall our populist basis, sovereignty for a common good, individuality, internationalist, and accessibility of government and public policy-making theses (1, 2, 3, 4, and 7) in Chapter 1.

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Second, democratic sovereignty believes self-governing communities in the form of states to be appropriate mechanisms for transmitting cultural, historical, and traditional expressions of identity, political will, and moral values; this restates our populist basis of sovereignty thesis. States continue to have real value for most people—from providing social services and basic welfare, common defense, and a source of identity. Institutions of government may also, in the vein of democratic sovereignty, frustrate what I call plebiscitary absolutism, by which majorities deny minorities rights under the guise of democratic procedures. States may also counter passions weighed against reason. Recall Athenian zeal in sentencing the Mytilineans to death, and their remorse the following day; penitence and apology ought not certiorate initially aggressive foreign policy (Thucydides 1989: Book 3). Third, rather than believing sovereignty to obstruct or abolish states’ “domestic relations with society as conceptual variables in international politics” (Hobson 1998: 295),44 democratic sovereignty recognizes domestic agents and the global demos as sources of transformational and morally legitimizing processes in international relations. Democratic sovereignty subverts the primacy of the sovereign’s (absolutist) power—whether that power be of the prince, the monarch, the state, the nation, or the majority— over the social. It questions sovereignty as the surplus of power with preponderant will (Hardt and Negri 2000: 325). In this vein, the study counters misreadings of Bodin, Hobbes, and Hegel by showing sovereignty’s conceptual grounding in a common good rather than in a surplus of power. These points recall our populist, common good, individuality, accessibility of government and public policy-making, and sociality of sovereignty theses in Chapter 1. Finally, democratic sovereignty reconceptualizes politics away from Weberian emphases on the state as holding a legitimate, amoral monopoly of the instruments of violence. It redefines state sovereignty to entail a set of obligations a state must observe to be in good standing with the international community—hence the emphasis on regulative principles of legitimacy. Further, it clarifies a progressive, moral evolution in state and global politics, thereby arguing against Weber that the state can be defined teleologically in terms of securing a common good. Hence, I am more concerned with reasoning the state and sovereignty back into international relations and political theory as productive elements in a democratic project of global governance, and in ways that allow people to take back the state and sovereignty as self-governing, common good-sustaining features of political life. This recalls our minimal conditions for recognition and sociality of sovereignty theses (numbers 6 and 8) in Chapter 1.

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Part III

Democratic sovereignty reconsidered

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6

Democratic sovereignty in a global world

If the emancipation of the working classes requires their fraternal concurrence, how are they to fulfill that great mission with a foreign policy in pursuit of criminal designs, playing upon national prejudices, and squandering in piratical wars the people’s blood and treasure? It was not the wisdom of the ruling classes, but the heroic resistance to their criminal folly by the working classes of England that saved the West of Europe from plunging headlong into an infamous crusade for the perpetuation and propagation of slavery on the other side of the Atlantic. The shameless approval, mock sympathy, or idiotic indifference, with which the upper classes of Europe have witnessed the mountain fortress of the Caucasus falling prey to, and heroic Poland being assassinated by, Russia; the immense and unresisted encroachments of that barbarous power, whose head is at St Petersburg, and whose hands are in every cabinet of Europe, have taught the working classes the duty to master themselves the mysteries of international politics; to watch the diplomatic acts of their respective Governments; to counteract them, if necessary, by all means in their power; when unable to prevent, to combine in simultaneous denunciations, and to vindicate the simple laws of morals and justice, which ought to govern the relations of private individuals, as the rules paramount of the intercourse of nations. Karl Marx1 We may describe human kind not as evil, but as a species of rational beings, who are steadily progressing from the evil to the good, striving against hindrances. Thus mankind’s intentions (Wollen) are generally good, but the carrying out [of these intentions] is made hard by the fact that the achievement of the purpose does not depend upon the free agreement of individuals, but upon the progressive organization of the world citizens into a system of cosmopolitan scope. Immanuel Kant2

Democratic sovereignty and normative international transformation Sovereignty evolves. In the language of Figure 3.1, while first level ordering is generally durable, second and third level ordering change in varying

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degrees. Second level constitutive defining principles, which act as rules of recognition and specify the conditions of agency, display remarkable durability. But, since they reflect deeply shared actor preferences, they echo variations in material and ideational structures over time. To wit, in the case of the monarchical principle, great powers shunned liberal democratic forms of government since such regimes were perceived to disrupt international order. Consequently, great powers modified the rule of recognition, which made membership in the society of (European) states contingent on a monarchical form of government. Confronted with a myriad of racial, ethnic, and political “others,” imperial European powers derived what Gong (1984) calls the “standard of ‘civilization’” to regulate membership in the statessystem. Third level ordering of scope or functional responsibility varies considerably owing to material and ideational innovations in political and social life. Chapter 1 described Lucca de Penna’s early thirteenth century list of sovereign functions and prerogatives, which was subsequently revised by the French king in the fourteenth century. Bodin, too, appealed to a particular set of functional responsibilities and prerogatives that, at least in Philpott’s view, failed to approximate sovereignty as we know it today (1997: 17, 28f.). Jackson (1990) likewise gets at the mutability of functional scope in his provocative formulation of the “quasi-state,” by which he measures the capacities of lesser-developed states with those of developed states. Our focus throughout this study, however, has been on second level regulative principles of legitimacy. These principles have in substantial but generally under-appreciated ways modified understandings and practices of sovereignty coincident with not always incommensurable ideas of the content of just political order. In some cases, as with religion (Augsburg) and monarchy, such principles reflect an aggregate of derivative interests fashioned out of power politics. Yet relativist goods metamorphose over time, falling prey, as we saw in the cases, to non-relativist ethical principles that, though invoked on occasion for self-advantage, nevertheless articulate a greater good. In other cases, regulative principles of legitimacy stemmed from a wider discourse among multiple actors about the content of a greater global good, which apprise citizens of the efficacy of public protest and counteraction of state oppression. Here, the Quaker abolitionist movement, human rights and environmental activists, and the campaign against conflict diamonds illustrate the point particularly well. In an important sense, regulative principles of legitimacy act as a “generative grammar” that help us articulate the normative grounds of international transformation. By prohibiting and prescribing particular conducts, principles of legitimacy fuse material power with conceptions of social purpose and just political order predicated on shared values. This then provides ground upon which possible future orders may be constructed. Here, I return

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to the theme introduced in Chapter 3—that of architectonic impulses, or attempts to “mould the totality of political phenomena to accord with some vision of the Good that lies outside the political order.” Notably, visions of the Good are not exogenous; that is, they are not derivative from Natural Law, divinity, or Mars. Rather, I understand by the phrase “outside the political order” visions of the Good that are not institutionalized within existing political arrangements. The cases I examined advanced the institutional infrastructure of international relations—a process that mimics domestic politics. Westphalia (1648) innovated by stressing the primacy of the juridical settlement of disputes (Article 123) and, in the event a threeyear “cooling off ” period failed to diffuse hostilities, a quasi-collective security system (Article 124) to defend continental order. The Congress system (1) established the concept of the peaceful imposition of sanctions against states that failed to abolish slave trading; (2) constituted international monitoring and information handling institutions in Zanzibar and Brussels; and (3) entrenched the institution of great power responsibility for international peace and security. Democracies founded a democracy caucus at the UN, signed a declaration on its defense and promotion, and promote (sometimes forcefully and thus contradictorily) democratic principles and values abroad. Various human rights monitoring and reporting institutions exist, including those permitting individuals to file complaints against offending states.3 Several ad hoc international criminal tribunals, and now a permanent international criminal court, advance the rule of law and human rights. A multitude of autonomous institutional arrangements established by multilateral environmental agreements monitor state compliance with environmental regulations, gather information, and coordinate state activities (Churchill and Ulfstein 2000). Such institutional frameworks provide necessary warrants against the vicissitudes of international political life by regularizing contacts between various agents, generating standards of conduct, establishing mechanisms of external review to enforce compliance and manage breaches of such standards, and providing focal points by which one may measure a certain progressive, moral development in international relations. Further, our inquiry underscores the increasingly constitutive and regulative role of law in the evolution of international relations—an important topic, to be sure, but one beyond the scope of this study. International law appears conceptually better equipped to handle a language, if not the logic, of a global common good, as evidenced in enduring conceptions of rex communis, obligations erga omnes, jus cogens, opinio juris, and universal jurisdiction. Rex communis, to reiterate, represents a distinct class of “property” common to all and which all are obligated to protect. IEL has in some cases successfully applied this concept to the protection of animal species, oceans and river-ways, the air—even Antarctica and outer space.

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Obligations erga omnes “protect the common interests of a group of States.” Consequently, they are “owed to the community, rather than to one or more particular States” (Annacker 1994: 131; see also Raggazi 1997). The concept is relatively new, having appeared in the 1970 Barcelona Traction case in which the ICJ drew a distinction between obligations “arising vis-à-vis another State in the field of diplomatic protection” and those “obligations of a State toward the international community as a whole . . . In view of the importance of the rights involved, all States can be held to have a legal interest in their protection.”4 According to the ICJ, these obligations include “the outlawing of aggression and of genocide,” and “the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.” 5 Malcolm Shaw adds torture to this list (2003: 116), and Maurizzio Ragazzi (1997: 137f.) appends the right to self determination and sovereignty over natural resources as based on the East Timor case (Portugal v. Australia); “the right to development [as] an inalienable human right”;6 and general protection of the environment (ibid.: 154–62). Though enforcement of such obligations is piecemeal at best or nonexistent at worst, obligations erga omnes “reflect the awareness of increased solidarity, and the aspiration to a greater unity over-spanning ideological and economic differences” (Weil 1983: 422). Jus cogens norms signify the peremptory legal status of obligations erga omnes, and are “based upon an acceptance of fundamental and superior values within the system and in some respects akin to the notion of public order or public policy in domestic legal systems” (Shaw 2003: 117). Jus cogens norms, as noted in Chapter 5, establish a normative hierarchy in international law and international relations, and may thus represent an “ethical minimum recognized by all the states of the international community” (von Verdross 1937: 574). Opinio juris buttresses jus cogens norms and obligations erga omnes. It refers to the “psychological component of international customary law,” or the belief in the legally binding nature of a particular rule (D’Amato and Chopra 1991: 22). Finally, the idea of universal jurisdiction maintains that any state possesses legal authority to apprehend and try suspects for particular egregious crimes. Belgium once possessed the world’s most progressive manifestation of universal jurisdiction, allowing for prosecution of any individual for any egregious crime that occurred anywhere in the world. But a burgeoning case load, and opposition by the United States and several EU and African countries forced a modification of the law, which now allows for prosecution of any egregious crime so long as either the defendant or victim is a citizen or resident of Belgium (Ratner 2003). Mindful of these points, we might read democratic sovereignty as proposing, in a weak sense, that a commitment to or vision of a Good gradually transforms the normative base of sovereignty or, in a very strong sense, that “world politics is evolutionary moral learning” (Modelski 1990). We may conceptualize variations of these readings as follows:

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Weak thesis: commitment to the common good, no matter the agent, can be and has been efficacious in transforming the normative basis of sovereignty practices when coincident with state support; this is democratic sovereignty.

Extrapolating from practices of democratic sovereignty, we derive the strong thesis: 2

Strong thesis a Weak version: harmful state policies will fail (but not always). b Strong version: the good will prevail. (i) Non-teleological reading: no progressivistic connection between advances in distinct issue-areas. (ii) Hedged teleological, inductive reading: world politics is evolutionary moral learning—and sovereignty is the site of such normative transfiguration; reveals the unfolding of an implicit democratic logic in world politics.

The weak thesis needs little explanation; cases in Chapters 4 and 5 provided empirical support. Variants of the strong thesis, however, require a bit more elaboration. The weak version of the strong thesis derives principally from the fate of thin regulative principles of legitimacy bred out of thin, instrumental conceptions of international order. To recall, thin, instrumental conceptions of order stress authoritative practices of states— recurring, patterned behavior that forms the backdrop of the states-system. Examples include norms of diplomatic exchange and inviolability; the keeping of promises; respect for property/sovereignty and its corollary, nonintervention. Thick, substantive conceptions of order appeal to a common good in the form of securing a series of diverse democratic goods. Examples suffuse this study. This dual conception of order and corresponding principles of legitimacy made it theoretically possible (though not morally desirable) to link disparate cases. Thus, moral advances such as the abolition of slave trading and the sale of conflict diamonds, for example, cohere theoretically with the Augsburg principle of cuius regio, eius religio, and the nineteenth century monarchical principle that imposed from above systems of governance; each regulated sovereignty practices and meanings coincident with particular conceptions of the Good. Further, the cases reveal that once a grouping of states adopts a particular principle or mode of conduct, they exert pressure—subtle or otherwise—on the recalcitrant to cohere with the emerging normative stricture. In this regard, Britain and the United States patrolled the high seas in search of slavers; Britain also handsomely paid several states to relinquish their slave trading practices. In the cases of the ICC, Kyoto, conflict diamonds, landmines, and debt forgiveness, coalitions of “like-minded” states persuaded states with reservations to join emergent regimes. Despite the moral anomalies or contradictions between thin and

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thick regulative principles, then, the concept of a legitimizing principle could still tread water. By distinguishing between thin and thick conceptions of order, we grant the concept greater weight and theoretical vigor by which to measure moral progress in international relations and chart ways the state and its sovereignty have been modified. This represents, I think, a significant advance over studies that purport to transcend sovereignty and the state, assume them away, abolish or ignore them altogether, and adds to the constructivist project in International Relations. The strong version of the strong thesis may be divided into two subtheses. I call the first the non-teleological reading because such a reading does not connect advances in distinct issue areas. If the good prevails, it is a consequence not of historical inevitability or irrepressible logic but of deliberate decisions by states and other agents to devote energies toward global common good projects. Decisions of this sort are largely the result of particular constellations of interests and resources at particular points in time. These constellations are, in turn, the product of prevailing (and notso-prevailing) ideas about the content of a just political order. The two cases associated with the Congress of Vienna and its Concert system of great powers illustrates the point well. Both slave trade abolition and the monarchical principle were promulgated in the idiom of international order, yet each served disparate ends: the former, democratic goods, the latter, state goods or narrowly conceived national interests. Each was coincident with reflection upon available moral resources within existing social arrangements. Yet reflection in the case of slave trade abolition did not automatically translate into democratic advances in the case of the latter; states failed to correlate the abolition of slave trading with French radicalism as they did with democracy—an equation that led to adoption of the monarchical principle. To put the point in a more contemporary light, simply because the United States opposes the ICC does not translate into automatic moral and legal regression and opposition to all international criminal prosecution for war crimes, crimes against humanity, and genocide. Perhaps more than anything, this case reveals the “paradox of hegemony,” as Bruce Cronin phrases it, or the “role strain” incumbent upon hegemonic states (defined in international leadership terms) to conform to social expectations and general rules of international conduct, versus such states’ roles as powerful actors (defined in terms of material capabilities) in which they have the capabilities to meet short-term interests in ways that may violate generally accepted international norms (2001). Skeptics will likely dismiss variations of the strong thesis, especially subthesis 2b(ii), which I call the hedged teleological, inductive reading of democratic sovereignty. As we have seen, optimistically, potential for ethical progress exists. But, pessimistically, so too does the potential for its obstruction and repression by powerful forces. Neoliberal global processes subordinate concerns for environmental and human well being to immediate economic advantage and corporate profit. While “normative co-option” of

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our “common heritage” and “global commons” (i.e. law of the sea, preservation of cultural artifacts, environmental protection treaties and conventions) by powerful states such as the US and Great Britain engenders hope for behavioral adjustment toward a greater (global) good (Falk 1999: 177), articulation of such concerns by dominant powers in multilateral treaties dilutes their normative content. Political will lacks in crises such as the Sudan. Pakistan and India occasionally—too occasionally—flirt with nuclear holocaust. Palestinians and Israelis are enmeshed in the destructive defilement of the land each calls sacred. And given the American-led invasions of Afghanistan and Iraq and the indefinite detention of persons suspected to have links to terrorist organizations, the prospect of a democratic sovereignty or democratic impulse in international relations appears a weak, somewhat utopian project. As these cases demonstrate, regressivism and progressivism share seats at the same table. Widespread cynical fallout debilitates even those most ardent protestors. Democratic Sovereignty does not contend states will abandon aggressive means in their foreign policies, especially where vital national interests are concerned. The book does maintain, however, that people have and generally do counter aggressive means when those means are construed as harming fundamental rights. Global anti-war protests and the spring 2004 Spanish election underscore this argument. Case studies, furthermore, call attention to the fact that principles of legitimacy develop over time. Persistent opposition to the slave trade did not result in its immediate abolition; rather, it took states over 200 years to abandon that “odious commerce.” Likewise, popular protests in 1848 overthrew the leading monarchical principle formulated by the Great Powers at the 1815 Congress of Vienna, though the principle retained some measure of influence until 1905. The hedged teleological sub-thesis recasts the overall argument in terms of a theory about the progressive advance of freedom, which really is a theory of agency and not predetermination. How and why people act in and react to circumstances is contingent on a variety of factors, including moral awareness, culture, need, technology, and available resources (material or otherwise), among others. It is up to the agent to grasp the significance of the moment in which actors may, collectively, foment decisive qualitative change. Notice the claim being made in the strongest version of the strong thesis. To submit that world politics is evolutionary moral learning does not link a theory of progress with either (1) technological and economic growth and a concomitant rise in living standards; or (2) historical inevitability ineluctably (and invisibly) driving actors to particular conclusions. The first, while holding considerable purchase power, dissociates moral standards from a conception of progress. As noted in Chapter 2, rising living standards, on a utilitarian argument, could be contingent upon enslaved labor. Certainly, genesis of the early-modern institution of slavery may be traced

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to the activities of early economic entrepreneurs, to “the most progressive peoples and forces in Europe—Italian merchants; Iberian explorers; Jewish inventors, traders, and cartographers; Dutch, German, and British investors and bankers” (Davis 1984: xvii). The second seems far too fantastical to be even plausible, dissociating from history any semblance or effect of human agency, will, and choice. Rather, to suggest world politics is evolutionary learning is to emphasize learning—an inherently social activity whose lessons are borne out through experience and reflection upon such experience, through, in short, trial and error. We can never be reasonably assured of outcomes. If anything, the horrific tragedy of 11 September 2001 taught us that actions and policies have, over time, unpredictable consequences, no matter how powerful is a state or how extensive are a state’s intelligence networks. Learning is never unilinear or unidirectional; progress is punctuated by regressions and reactions. States do not exist in social vacuums, but in contexts animated by competing interests and values, cooperation and dialogue, exchange and interpretation. Sometimes these dialogic and interpretive networks yield convergences of interests and values (especially in times of and after crises), and these convergences often provide fertile ground upon which to construct new socio-political orders, explore new ideas about the just content of such orders, and advance the cause of human freedom. States may, further, learn from successful instances of cooperation and institutional development, and extend cooperation elsewhere. In this regard, one may make the entirely plausible causal linkage between external review of European human rights practices (by the European Court of Human Rights) and European advocacy of such global common good measures as the ICC and the human security agenda. Positive experience with external review may have “taught” states that autonomous international institutional structures need not subtract from one’s own sovereignty—hence the European propensity to provide moral or “soft” leadership in the international arena. We have linked changes in sovereignty to perceptions of legitimacy contingent on ideas about the content of a just political order. I devote the remainder of this chapter to two tasks: first, to extrapolating the meaning of a just political order; second, to reflecting on democratic sovereignty’s place in IR theory.

Just political order I break ideas about the content of a just political order into two central categories. The first I call an internal conception of justice. This conception treats justice as an individual attribute, a virtue reflecting the authentically self-creative ways individuals conceive themselves in conditions of reciprocity, mutual regard, and tolerance. I call the second an external conception of justice. This conception treats justice as an adjunct of political

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institutions, a reflection on how public policy decisions distribute, defend, and advance fundamental rights, duties, goods, and capabilities. On the internal view, sustainable, just political order derives from “wellordered” individuals oriented toward the good. In this vein, Gandhi can rightly assert: without rule of self there can be no Swaraj or Ramrajya [“sovereignty of the people based on purely moral authority”]. Rule of all without the rule of oneself would prove to be a deceptive toy-mango, charming to look at outwardly, but hollow and empty within. Thus the problem of democracy is basically a problem of value. Unless the moral and spiritual qualities of the people are appropriate, the best of political systems and constitutions will not work. (quoted in Singh 1997: 233) Legislating morality is risky business, to be sure. But Gandhi stresses not the dictatorial imposition of morality and values by a majority or an aristocracy or a leader upon a wider population, but the cultivation (to recall our discussion of Althusius and Bodin) of moral qualities based on mutual respect. Socio-politically, Gandhi thought the most appropriate way to encourage cultivation of the intellective and moral virtues, of, poignantly, mutual valuation or regard for others, was to decentralize power and relocate it to local communities. In other words, Gandhi upheld the intrinsic good of self-government, which restates our populist basis of sovereignty thesis in Chapter 1. He called for an Oceanic Circle of Villages till at last the whole becomes one life composed of individuals. The outermost circumference will not wield power to crush the inner circle but will give strength to all within and derive its own strength from it. (quoted in ibid.: 236) A political organization structured around the principle that “every village has to be self-sustained and capable of managing its own affairs” possesses the advantage that should any centralized power attempt to impose its own will, these communities can, constructed on solidarity and a commitment to a common good, nonviolently resist the offending power. Yet, what if self-sufficient communities agree unanimously to support, for instance, slavery? Recall Thoreau: Practically speaking, the opponents to a reform in Massachusetts are not a hundred thousand politicians at [sic] the South, but a hundred thousand merchants and farmers here, who are more interested in commerce and agriculture than they are in humanity, and are not prepared to do justice to the slave and to Mexico, cost what it may. (1980: 226)

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Thoreau gets at an important point: undercutting individualism for it pins the common good on an assemblage of diverse, non-other-regarding goods. Democracy, according to Thoreau, is sustained by the duty “not to give [wrongs] practically [one’s] support.” Yet, given the absence of any corresponding duty “to devote [oneself] to the eradication of any, even the most enormous wrong” (ibid.: 227), how are we to be assured self-governing communities will not find it expedient, for instance, to enslave, torture, or degrade others? As his example demonstrates, we cannot be reasonably assured that popular opinion and belief will ensure the just treatment of others. Interestingly, Bodin prefigures the argument by deftly weaving together internal and external accounts of justice. For him, justice issues from “well ordered commonwealths” oriented toward the “intellective and contemplative virtues,” namely, the “subordination of appetite to reason” in addition to the exercise and pursuit of prudence, knowledge, and faith (1955 [1576]: 2f.). Well-ordered commonwealths are, in turn, the consequence of right leadership—made imperative by the fact that individuals incline “to that which is forbidden” (ibid.: 1, ii–v, 16f.).7 Governance by example, or justice fashioned from above by state institutions, inculcates conditions for good, that is, moral, self-governance, and mutual valuation. Bodin’s account of sovereignty vis-à-vis slavery, which I recounted in Chapter 1, clarifies: a sovereign could be, simultaneously, originator of the law (civil law which, as we may recall, embeds natural and divine law in the commonwealth), subject to the law (natural law as codified civilly), and above the law (both civil and common law) only when that law contravenes or undermines the common good—which of course presupposes an objective good exists “out there” waiting to be apprehended by a virtuous person. Here, the practice of (a publicly constructed) justice generates the virtue of justice. But this begs the question: if justice issues from divine and natural law, and at least a few individuals apprehend such law prior to the creation of state, then aren’t all individuals necessarily endowed with the same capacity to apprehend divine and natural law absent the structural confines of the state? Why any centralized authority is needed is rendered problematic,8 especially when one considers the effects popular dissent has had on a myriad of state policies —e.g. Quakers and abolition, Global Witness and conflict diamonds, Jodi Williams and landmines, Jubilee 2000 and debt-forgiveness. But neither can we be reasonably assured institutions of state will counter injustices. Justice, then, must have specific referents. I attempted to satisfy that requirement by appealing to life-sustaining and life-enhancing democratic goods—including life, enlightenment, skill, affection, dignity, and their derivatives—which give content to what Hobbes takes to be a “science of justice.” Hobbes’ remarks in Behemoth (recounted in Chapter 1) on the evident nature of principles from which we derive “necessary rules of justice,” taken in conjunction with Marx’s internationalism as vindicating

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the simple laws of morals and justice, suggest that justice is preeminently about procuring these goods within conditions of tolerance and mutual respect. Contemporarily speaking, the idea finds expression in the human security agenda, the “responsibility to protect,” and the Erdemovic judgment. Further, our case studies confirm that to be actualized, international common good measures (in the guise of regulative principles of legitimacy) require the convergence of both internal and external conceptions of justice. Where external conceptions predicated on relativist goods are divorced from internal conceptions predicated on democratic goods, regulative principles fail. Augsburg and the monarchical cases illustrate. And though I have not explored particular cases here, I think it would be safe to assume that movements pressing for fulfillment of democratic goods without state support likewise fail. An internal account of justice generally improves upon external conceptions that treat justice as contingent upon the coordination of conflicting imperatives, demands, and interests imposed and enforced by the tutelary powers of state. Such readings—“justice as fairness,” “conformity to law and obligation,” or “giving each his or her due” (Sterba 1992)—tend to focus inordinately on institutional mechanisms to do the work of justice. In this regard, justice is preeminently concerned with the “basic structure of society,” by which Rawls means “the way in which . . . major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation” (1971: 7). By major institutions he understands “the political constitution and the principal economic and social arrangements.” While just institutional structures are imperative, external readings of justice generally obscure individuality and the internal cultivation of justice. To illustrate, mere conformity to law and obligation risks perpetuating grave injustices such as slavery and institutionalized racism. By engaging in racist acts, by segregating public spaces—be they water fountains or bus seats—one acts in conformity with the law and, on an institutional reasoning, with the demands of so-called justice. Likewise, without qualification, giving each his or her due retributively literalizes the Biblical injunction “an eye for an eye, a tooth for a tooth,” a life for a life. Both formulas disregard the inherent dignity of each human (and nonhuman) life. Most starkly, it either reduces justice to a solipsistic judgment in determination of each person’s due, or, given conceptual clarity by the blind “rule of law,” treats unequal cases equally. In the end, I think we’d all end up blind and toothless, if not dead. But Rawls’ “justice as fairness,” I think, goes further than justice as “giving each his or her due.” Still, it has its shortcomings. Let’s take the “difference principle” which requires that social and economic inequalities be arranged so that they benefit the worst-off (ibid. 60). Prima facie, the principle suggests that some people may demand or require a greater share of socio-economic goods due to their contributions to society. Thus, a

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teacher or a firefighter or a civil servant might receive a greater basket of goods than, say, a businessman or art curator so long as the worst-off benefit, as they presumably would, from the services rendered to society as a whole. Theoretically and practically, such a rendering requires that goods be arranged hierarchically, apportioned on the basis of contribution to society. In other words, education as a form of enlightenment; fire-fighting as a form of life (protection), well-being, and safety; and governing for the greater good must somehow be articulated as more intrinsically valuable from a social standpoint than, say, the generation of an excess of money as, conceivably, a form of enlightenment for some, or the preservation of art as aestheticism qua enlightenment for others. Realistically, this seems a doomed project; few polities ever attempted such a radical reconstruction of society; when some have, they notoriously failed (think of Cambodia under the Khmer Rouge; Idi Amin’s Uganda; the Soviet Union; Afghanistan under the Taliban). In fact, a case may be made that corporate wealthproduction benefits society as a whole; to wit, many philanthropic endeavors and cultural institutions are sustained by corporate contributions. On this reading, the difference principle essentially mimics “trickle down economics” or, as was felicitously phrased in 1980s America, Reaganomics. Here, the striking indeterminacy of the difference principle reveals a poignant layer of individualism that, as Alan Gilbert notes, “fails to acknowledge a decisive interested, and hence unreasonable, source of disagreement, namely, the ordinary zeal of the rich to secure and expand their wealth” (2002, emphasis in original). Some, like Richard Miller, may even argue that “there is no social contract that the best-off class and the worst-off class will acquiesce in, except as a result of defeat in class struggle or a tactical retreat to preserve long-term advantages” (1992: 160). On this view, even in what Rawls called the original position within which the “veil of ignorance” conceals social positions, special interests, and needs, individuals, since they “know the general facts of society [including] . . . political affairs . . . principles of economic theory . . . the basis of social organization and the laws of human psychology” (1971: 137, emphasis added), may be inclined to gamble away certain rights hoping that they will end up advantaged. While many may be disinclined to “gambling,” the fact remains that people, equipped even with the most general knowledge of economics, social organization, and psychology, may be less likely to agree to the (ostensibly radical implications of the) difference principle. Ordinary zeal and greed may in this case drive outcome. Both arguments raise a pertinent point that Martin Luther King, Jr communicates vividly: we have not made a single gain in civil rights without determined legal and non-violent pressure. History is the long and tragic story of the fact that privileged groups seldom give up their privileges voluntarily.

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Individuals may see the moral light and voluntarily give up their unjust posture; but as Reinhold Niebuhr has reminded us, groups are more immoral than individuals. (1991: 71; emphasis added) Likewise, Thoreau: Action from principle—the perception and the performance of right— changes things and relations; it is essentially revolutionary, and does not consist wholly with any thing which was. It not only divides states and churches, it divides families, aye, it divides the individual, separating the diabolical in him from the divine. (1980: 228, emphasis in original) Each reveals the limits of a purely deliberative approach focused on the derivation of public procedures under the constraints of an “ideal speech situation,” within which “universal moral respect” and “egalitarian reciprocity” are preconditions for public debate (Habermas 1985). While these are Habermas’ terms, the criticism also applies to Rawls’ thin theory of the good in which rational individuals rank in a deliberative original position their preferences of social order for the purpose of advancing individual interests. Just political orders are mere consequences to the securing of relativist (self-referential) goods. By focusing on actual conditions in which moral progress has been achieved through concerted dissent and action from below, but in ways that are wed to both the institutions of state and the objective moral fact of human dignity, a democratic conception of sovereignty surpasses limitations of procedural-deliberative models. Discursive models cannot by themselves resolve the problem of how to engage a slaveholder and his slaves in public debate on the injustices of slavery. Restriction of participation in public matters to conditions of deliberation truncates— not always, but in certain conditions—the development of democracy, freedom, mutual valuation, and individuality. That Rawls believes “ethical facts exist only relative to particular public conventions about justice” (Gilbert 1990: 79) negates the sort of work I have done here and the sort of work done throughout history; negates, further, such moral insights into the nature of human dignity and welfare; and undermines appeal to a common good in favor of autonomy and choice. His rights-based account of an “overlapping consensus” avoids a necessary commitment to particular values (Rawls 1993: 39f. and IV, §3, p. 144) and to mutual valuation that arguably must precede rights. While rights are inherently social—I can only assert a right in the company of others— they also have an objective component that rejects any contingency on particular contexts of recognition or enforcement. In other words, states and societies may decide to divest certain individuals of rights (on the basis of race, ethnicity, gender, sexual orientation, political affiliation, religion,

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or any other specious reason). Rights cannot simply be bargained away by contract, gamble, or exchange. This is why I argue for the objectivity of valuing human life and the democratic goods that make a human life meaningful; they give irreproachable content to just political orders and a conception of the good. Loss of such values or rights, as Hannah Arendt put it, entails the loss of the relevance of speech . . . and the loss of all human relationship . . . the loss, in other words, of some of the most essential characteristics of human life . . . Slavery’s fundamental offense against human rights was not that it took liberty away (which can happen in many other situations), but that it excluded a certain category of people even from the possibility of fighting for freedom. . . . Slavery’s crime against humanity did not begin when one people defeated and enslaved its enemies (though of course this was bad enough), but when slavery became an institution in which some men were “born” free and others slave, when it was forgotten that it was man who had deprived his fellow-men of freedom, and when the sanction for the crime was attributed to nature . . . Not the loss of specific rights, then, but the loss of a community willing and able to guarantee any rights whatsoever, has [since] been the calamity which has befallen ever-increasing numbers of people. Man, it turns out, can lose all so-called Rights of Man without losing his essential quality as man, his human dignity. Only the loss of a polity itself expels him from humanity. (1973: 297) Arendt offers us a fairly thick account of community, of solidarity against oppression and for a common good—an account that harnesses moral resources, or resources speak to the “original [Athenian] discovery or moral fact . . . of self-aware freedom” (Gilbert 1990: 29), which necessarily grounds political deliberation, judgment, inquiry, and action in a nonrelativist, common project. Recall Socrates’ argument in Book IV of The Republic: Our present concern in founding the city is not how to make any one class [or even a majority of classes] happier than the rest but how to make the whole city as happy as possible. For we maintain that the contented city is where we are most likely to find justice. (Plato 1985: Book IV, 419b–c, p. 116, emphasis added) This common good project is inextricably tied to the insight that rights do not merely assure satisfaction of individual (often relativist) goods to the sacrifice of (sometimes non-relativist) social goods, but, that they are contingent on the existence of a polity that will fight for the so-called objective goods of human life and human dignity in the first place. And this is why

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I argue against majority-based conceptions of democracy, for they may devolve into a series of incoherencies. Majorities may one day decide— quite democratically, as it were, on thin procedural reasoning—to liquidate certain classes of peoples till one day there are no more “classes” of peoples remaining; this is Bertolt Brecht’s insight into the “paradox of democracy.” Democracy, to be coherent, must be predicated on an objective valuation of human life and dignity, a valuation, moreover, armed with an equally objective core of democratic goods.9 In this regard, Rawls’ theory of the good appears thin for it privileges individual goods potentially to the detriment of a common good, to the detriment, moreover, of the polity. Reifying autonomy and choice divorced from wider social contexts and from a thick commitment to a polity that in the end defends the claims of each individual, essentially catapults individualism to a secular holiness (Dupré 1993), the (logical) extension of which engenders radically subjective relativisms that fail in some respects to take into account others. Where discursive negotiation fails, nonviolent resistance and the limited use of force counteract oppression. Conditions of moral respect and egalitarian rationality, after all, seem unlikely between peoples that rely upon slavery, defend racial segregation, occupy the lands of others, use weapons of indiscriminate mass destruction, or accumulate wealth on the backs of others. Justice, then, cannot be impartial; it must be partial. Whereas an impartial conception of justice might apprise itself of pure, abstract, empty formality —for example, treating unequal peoples equally under the law which prima facie disallows favoritism—justice as partiality demands acuity to the suffering caused by depravity and cruelty. Justice as partiality requires vigorous attention to the common good and to the suffering of others. To this end, justice as partiality would rightly demand environmental conservation measures to assure environmental quality for future generations; rectification of inequalities and the rebuke of those who treat unequals equally (the requirement of formal theories of right and applications of justice as impartiality)10 when equal treatment would perpetuate inequity and the iniquity; bans against the sale of conflict diamonds and employment of children as soldiers; and the like. The true mark of progress, to revert to an earlier idiom, is, then awareness of the suffering of others and, concomitantly, action in response to that suffering. Deed—the irrefutable character of political and social being, par excellence—transforms our publics in such a way as to embed moral realization in political order. Democratic sovereignty emanates from such action, and principles of legitimacy embedded in international legal strictures capture this dimension internationally. Attached to sovereignty, these principles help justly order political and social relations. In another idiom, a democratic sovereignty compels those wills that refuse to obey the sovereign general will to be free, signifying a Marxian rejection of the “objectification” of sovereignty (1978: 18f.). The point is to advance democratic sovereignty at the expense of institutional relativism. Anything less is truly hypocrisy.

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Conclusion The fact that sovereignty as the constitutive principle of international relations has endured for several centuries does not excuse us from recognizing the importance of shifts in the meaning of sovereignty and its practices. To be sure, several scholars have attempted to give sovereignty a progressive gloss. But generally speaking, the inadequacy of sovereignty theory may be attributed to the often narrow, if not dogmatic, way scholars approach the subject. The lens through which sovereignty is usually viewed is often colored by globalization, thereby obscuring wider implications of and developments in its meaning and practice. Witness the surge in studies of sovereignty when global transactions (Deutsch), dynamic density (Durkheim/ Ruggie), or interaction capacity (Buzan) are thought to increase exponentially. Either globalization erodes sovereignty, or it has little effect on the unchanging juridical reality of the state. Given that, despite the multitude of studies on sovereignty, and most telling the nature of the phenomenon to which these debates respond, sovereignty still eludes us; consequently, we might conclude that we ask the wrong questions, questions that are motivated by faddish pretenses. It is no wonder that theoretical work fails to bring us closer to a more substantial understanding of the constitutive principle of international relations. Of course, theoretical orientations determine on which side of the divide a scholar may lay. Neorealists, neoliberal institutionalists, and systemic social constructivists11 take the primacy of the state as their starting point and therefore are more apt not to problematize sovereignty. For them, political authority is understood in formal and equalizing terms, thereby creating the condition of anarchy in which putative equals recognize no superior to mediate disputes and quell conflicts. Unfortunate for systemic theories, however (with the exception of systemic social constructivism), they tend to underemphasize the effect of “systemic density” and thereby, “paradoxically, suggest [sic] that systemic factors may not be very important relative to unit level ones in the first place” (Wendt 1999: 13), thus calling into question their integrity and explanatory capability. Others find theoretical and practical import in emphasizing the multifarious, onion-like layered nature of (a functionally understood) sovereignty and its erosion, peeling, or chipping away by global forces. Sovereignty qua basket may accentuate the very real, de facto limitations placed on less (economically, militarily) powerful and, consequently, less influential states, but holds little value in explaining how the constitutional structure of sovereignty persists. If basket theorists are correct, then logically we ought to expect a decrease in the overall number of states since many states are simply unable to cope with their own internal problems or provide basic resources to their populations. However, history contradicts this conclusion (one we may felicitously call natural selection), thus casting skepticism upon the basket theory. Emphasis on the (sometimes truncated) functions and rights of sovereigns and the

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purely quantitative power of states occludes any meaningful understanding of sovereignty situated in the larger dynamic of international society. This book began as an inductive, historical enterprise to measure sovereignty theory against actual sovereignty practices. How well, I asked, does sovereignty theory measure against the actual tide of history? However, I did take as the starting point several ontological observations. First, states remain the central actors of international relations and, second, polities recognized as states are thereby accorded sovereign status. Despite the admission of non-state agents in international society and the increasing salience of their work to which many of my case studies spoke, these others have not yet effectively challenged or replaced the state as the primary actor. This is not to suggest that system-level processes and factors do not in some cases profoundly affect the state: states’ roles and identities change, and with these come modifications in the operation of sovereignty. But, as I argued in Chapter 3, these forces do not categorically translate into sovereignty’s erosion. Sovereignty need not be summarily dismissed because we see the emergence of alternative macro (and micro) structures of authority that may have appropriated functions once or long associated with the sovereign state. The conceptual and practical history of sovereignty provides ample evidence that sovereignty is not static but evolves. And while the content of sovereignty practices may change, juristically speaking, mutual recognition of sovereignty remains a fundamental, constitutive feature of international relations. Third, membership in the club of statehood is contingent, not automatic; but once conferred sovereignty becomes an “essential property” of the state. Gerritt Gong’s work proves, with much empirical evidence, that European states imposed conditions on polities seeking admission into this society of states (1984). We can say with certainty that once recognized states do not lose their sovereign designation; history does not support the thesis that sovereignty can be, or has been, withdrawn when a majority of states declares another state persona non grata. Yet states are occasionally ostracized—Austria, North Korea, and Iran to name a few—which leads us to conclude that not only must polities fulfill certain and meet internationally defined criteria and standards to be accepted as sovereign, but sovereign states, to “remain members in good standing” (Chayes and Chayes 1995: 24), must adhere to certain normative restrictions on the exercise of sovereignty. True, there is no Leviathan above states to enforce norms and rules, either customary or codified. But also is it true that rules exist for determining what constitutes membership in good standing that, though determined by states, act as a supranational normative structure. From this emerged a fourth observation: while there is something decidedly constant about sovereignty, there are also transformative, evolutionary features of it as well. A viable theory must reflect this duality. Favoring one aspect while ignoring or disparaging another will only hinder understanding and lead to

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some rather faulty policy formulation. Because of the changing nature of the standards to which sovereignty is “held accountable,” our understandings and practices of sovereignty must change. Surely few would challenge the notion that sovereignty as it was understood and practiced in the 1600s differs from today. While there is something constant about sovereignty— its juristic connotation—it is also true that functions and practices of sovereignty transform over time. Neither an increase nor a decrease in the scope of sovereignty (meaning the range of permissible functions) should be taken to alter fundamentally its essential nature; Waltz and others have this much right.12 Finally, on an interpretive level, much of what animates the evolving nature of sovereignty concerns perceptions of legitimacy. In other words, sovereignty has been marked by great shifts in comprehension, employment, and operation. These shifts, as I suggested earlier, originate from an instinct to create and maintain legitimately conceived (just) order. A viable theory of sovereignty must address these points, recognizing that while there are certain primary actors in the system, these actors do not act in uninhibited ways. Behavioral restrictions issue not only from material dimensions but also from ideational-normative ones. To these ends, I developed a democratic conception of sovereignty. Such a construction in turn rested on the presumption that states are a form of political community in which is gathered a plurality of humans collectively sustained by a bond of fellowship that unites them in a shared political purpose which they [are] committed to pursue. A democratic conception supplements extant theory by giving voice to those informal elements of power—non-state agents—in the construction of sovereignty. In other words, multiple agents participate in sovereignty’s ongoing constitution, articulation, and modification. Sovereignty norms and practices thus come to reflect the varied and not always incommensurable interests of such actors. This formulation, then, poses an interesting corollary: that political community has not been, nor need not be, constrained by the framework of the state. In other words, democratic sovereignty recognizes multiple levels of political community—sub-national, national (or the level of state), supranational, and transnational, though we often speak of the sovereignty of the state. After all, political community is constituted and restructured by the multiple agents who comprise it. Such communities, moreover, may be relatively permanent—as manifested in the state or nation—or relatively ephemeral as in transnational social and political movements (i.e. abolitionist movements; the antipersonnel landmines campaign; and the struggle against apartheid) that largely disintegrate after their aims have been accomplished. Evolution of political community is thus in part contingent on the communication and reconciliation of diverse normative values or, in another idiom, of ideas of the content of just political order. Normative values may be communicated between and may evolve from interactions by people

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across state borders, despite the lack of a normative commitment by states. One example might be abolitionism, which, in its early decades, had no state adherents or defenders. Only gradually did states come to accept the pernicious immorality of that “odious commerce” and practice (Murray 1980). Thus, transnational social groups or networks may form and affect the nature of sovereignty by campaigning for restrictions on state sovereignty practices. Because of this, I think it appropriate to change the discourse and conceptualization of sovereignty away from agency and toward all those formal and informal elements and acts of power that partake in the ongoing construction of sovereignty. In light of this, I formulated a transgressive conception of space in Chapter 2 that is superimposed on simple domestic-international divisions of space; such space links ethical concerns, multiple actors, and the pursuit of democratic goods across borders, which I think is necessary when practical global problems—pollution, terrorism, disease, and poverty, among others—weigh significantly on all political communities. Collective pursuit of ameliorating collective problems does not abolish the sovereign state and local political community; indeed, democratic sovereignty remains committed to the state as a viable institution that has important work to do in the specific articulation of values for that particular community. But such pursuits do often generate principles that regulate state practices. This makes it possible to construe democratic sovereignty as a much broader social process, not as a thing or indicator of agency. As the Permanent Court of International Justice famously stipulated, “the question of whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations” (cited in Fox 1997: 114). The question of sovereignty’s content, in other words, belongs not to individual states but to the broader communities within which states are situated. By shifting discourse away from the supreme authority of a particular agent (thing) toward the supreme authority of a broad set of human values or democratic goods (process), we locate sovereignty in a multi-layered global politico-legal order in which legitimacy (and hence sovereignty) is tied to domestic, international, transnational, and supranational structures and agents. Even Bodin, long vilified for his absolutism, believed the sovereign to exist for the promotion of the common good. Preston King writes: [i]f the purpose of the sovereign were to attend to the common good, however defined, this task not only could but, as Bodin saw, did lead into the need for administrative initiative as well as for judicial conservation; it required the rearrangement of social relations as well as their preservation. (1974: 131, emphasis added)

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Granted, Bodin’s sovereignty inhered in an individual, but this does not obscure the point. While the sovereign was above the law in a certain sense, this condition was contingent on justly ordering social and political relations to realize a good. To be sure, states and their agents have acted as the final arbiters of relations beyond the border, the purveyors of universal governance. Corrupt leaders around the world appropriate funds earmarked for social welfare projects; murder millions of innocents in the name of ideology, abstract ideals, and faith; wage war against peoples who have freely chosen their forms of government; intervene out of greed; and are eluded by the illustrious shadow of power, believing it to be its substance. The putative national interest became an elite interest informed by perversity—perversity of power, greed, faith, and ideology. International Relations all too easily appropriated the dominant discourse of brute force, constituting it as the “timeless wisdom” of systemic constraints. “The strong do what they can, the weak do what they must”—IR’s (in)famous, enduring mantra— relegates stigmatized moralistic pronouncement to the sidelines of reason, and implicates naïve idealism as the root cause of quagmire, theoretical impurity, and practical irrationality. The discourse of cycle and repetition easily pervaded realism and neorealism. What can be said of a discipline that adopted Thucydides as honorary grandfather, stripped him of his most central insights, and reduced him to thematic realism? This study highlights the need for complementarity between our theories and history, a congruence that must not be sacrificed for purity and elegance if purity and elegance only negligibly reflect reality or, more pointedly, inflate but one aspect of reality. As the cases in Chapters 4 and 5 attest, international relations need not be devoid of an account of progressive, moral development. In a curious twist of Rousseau, Democratic Sovereignty shows that, when oppressed by policies correlative to the national interest, when real needs are unmet, individuals often wield in their defense that “whoever refuses to obey the general will shall be constrained to do so by the entire body politic, which is another way of saying that [its] fellows shall force [representatives of the sovereign state] to be free” (1954: Book One, ch. VII, p. 25). Conventional understandings of state and political community framed by sovereignty eclipse the salience of this point by underscoring what political communities are: law making structures, monopolies of violence. We ascertain very little of what states as political communities actually do, or furthermore, what they ought to do. Are we to accept the notion that states (meaning here their government agents) forever balance and bandwagon, bow to hegemons, pursue purely selfish interests, disregard or abuse human rights, pollute the environment, slaughter endangered species to the point of extinction, invade other countries and enslave their populations or impose upon them a government to which those populations did not consent—all the

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while their own populations felicitously consent? True, states have engaged in such behavior and continue to do so. But to suggest that this is all they do veils fundamental, normative innovations and processes in international relations. To suggest, furthermore, there are no or few restrictions attached to state behavior is to overlook a critical, however subtextual, development in international relations.

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Appendix Select global common good measures

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(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) 1948 1974 1984 1992 1997 1998 1999 2000 2002 1997

Afghanistan Albania Algeria Andorra Angola Antigua and Barbuda Argentina Armenia Australia Austria Azerbaijan Bahamas Bahrain Bangladesh Barbados Belarus Belgium Belize Benin Bhutan Bolivia Bosnia and Herzegovina Botswana Brazil Brunei Darussalam Bulgaria Burkina Faso Burundi Cambodia Cameroon Canada Cape Verde Central African Republic

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Country Chad Chile China Colombia Comoros Cook Islands Congo Brazzaville Congo, Dem. Rep. Costa Rica Côte d’Ivoire Croatia Cuba Cyprus Czech Republic Denmark Djibouti Dominica Dominican Republic Ecuador Egypt El Salvador Equatorial Guinea Eritrea Estonia Ethiopia Fiji Finland France Gabon Gambia Georgia Germany Ghana Greece Grenada Guatemala Guinea Guinea-Bissau Guyana Haiti Holy See Honduras Hungary Iceland India Indonesia Iran Iraq

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Ireland Israel Italy Jamaica Japan Jordan Kazakhstan Kenya Kiribati Korea, Dem. P. Rep. Korea, Republic of Kuwait Kyrgyzstan Laos Latvia Lebanon Lesotho Liberia Libya Liechtenstein Lithuania Luxembourg Macedonia Madagascar Malawi Malaysia Maldives Mali Malta Marshall Islands Mauritania Mauritius México Micronesia Monaco Mongolia Morocco Mozambique Myanmar Namibia Nauru Nepal Netherlands New Zealand Nicaragua Niger Nigeria Niue

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Norway Oman Pakistan Palau Panamá Papua New Guinea Paraguay Perú Philippines Poland Portugal Qatar Moldova, Republic of Romania Russian Federation Rwanda Saint Kitts and Nevis Saint Lucia Saint Vincent and the Grenadines Samoa San Marino São Tomé e Principe Saudi Arabia Senegal Serbia and Montenegro Seychelles Sierra Leone Singapore Slovakia Slovenia Solomon Islands Somalia South Africa Spain Sri Lanka Sudan Suriname Swaziland Sweden Switzerland Syria Tajikistan Tanzania Thailand Timor Leste (East Timor)

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Togo Tonga Trinidad and Tobago Tunisia Turkey Turkmenistan Tuvalu Uganda Ukraine United Arab Emirates United Kingdom United States Uruguay Uzbekistan Vanuatu Venezuela Vietnam Yemen Zambia Zimbabwe

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R R A R A R R R A A R A S

PA

Key (1) 1948 Genocide Convention A = Accession (2) 1974 CITES AA = Approval (3) 1984 Torture Convention AC = Acceptance (4) 1992 Rio Declaration on the Environment P = Party (5) 1997 Landmines Treaty PA = Participant (6) 1998 Rome Statute, ICC R = Ratification (7) 1999 Terror. Financing S = Signature (8) 2000 Warsaw Declaration on Democracy SU = Succession (9) 2002 Diamond Kimberley Process for Diamond Certification (10) 1997 Kyoto Protocol Genocide Convention source: www.ohchr.org/english/countries/ratification/1.htm as of 4 March 2006 CITES source: www.cites.org/eng/disc/parties/alphabet.shtml as of 4 March 2006 Torture Convention source: www.unhchr.ch/html/menu3/b/h_cat39.htm as of 4 March 2006 Rio source: http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php as of 4 March 2006 Landmines source: www.icbl.org/treaty/members as of 4 March 2006 Rome source: http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty11.asp as of 4 March 2006 Terror source: http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty12.asp as of 4 March 2006 Warsaw source: www.state.gov/g/drl/rls/26811.htm 27 June 2000 Kimberley source: www.kimberleyprocess.com as of 4 March 2006 Kyoto source: http://unfccc.int/files/essential_background/kyoto_protocol/application/pdf/kpstats.pdf as of 4 March 2006

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Notes

Introduction 1 Hobbes renders the Greek “For the men, not the walls, nor the empty galleys, are the city.” Thucydides (1989: 7,77.7). 2 Incidentally, Lord Mansfield in Somerset v. Steuart (1772) affirmed the illegality of slavery in Britain: “Slavery was so odious,” Mansfield maintained, “that its legality could not be based on mere custom or usage. Anything short of statutory action, which had the power to preserve slavery’s mandate long after the ‘reasons, occasion, and time . . . from which it was created . . . were erased from memory,’” was insufficient to give it legitimacy. (Sanders and Adams 2003, www.harperacademic.com/ catalog/excerpt_xml.asp?isbn=006019975X) 3 Cf. the case of Hong Kong, leased by the British from the Chinese until 1997. 4 For brief indictments of sovereignty from a democratic perspective, see Anderson (2002), Benhabib (1999), and J. Hoffmann (1998). 5 I use the terms “International Relations” (or “IR”) to indicate the academic discipline, and “international relations” to indicate actual practice and history. 6 Many studies have investigated the role of NGOs, social movements, and other non-state networks and agents, but none have to my knowledge systematically related their activities to sovereignty per se. See for example Bleiker (2000), Donnelly (1984), Keck and Sikkink (1998), and Risse-Kappan (1995). 7 Philpott’s strongest statement about more popular or populist forms of sovereignty disappoints, for it fails to extend an important insight: Not only did both sets of revolutionaries [Protestants, nationalists against colonization] claim sovereignty, but both also claimed sovereignty in a similar fashion, on behalf of a similar value—freedom. At least freedom of a certain sort. Both revolutions sought sovereign authority as protection for a people, for their local prerogatives, for their immunities, for their autonomy, all of this as a shield from the impositions of a more universal entity, in both cases an empire . . . In both revolutions . . . sovereignty procured freedom in this limited, but important, sense: the holder of sovereignty was immune from rival claims to authority from both within and without its territory. (2001: 254, emphasis added)

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8 Montevideo Convention (1933), cited in Carter and Trimble (1991: 412–18). The other criteria include a permanent population residing in a defined territory, with a government having the capacity to enter into relations with other states. 9 I thank George DeMartino and Jack Donnelly for compelling me to be clearer about these points. 10 On the norm of legitimacy emanating from these revolutions, see Bukovansky (2002). 11 Such goals include rules of diplomatic exchange, mutual recognition, sovereignty’s corollary rule of non-intervention, peace in the sense of the “absence of war among member states . . . breached only in special circumstances and according to principles that are generally accepted,” pacta sunt servanda or the keeping of promises, the preservation of private property, and the “limitation of violence resulting in death or bodily harm.”

1 Sources 1 For a near comprehensive accounting of the many authors who treat sovereignty and human rights as fundamentally opposed, see Donnelly (2004). 2 DeMartino (1999) wonderfully dissects sovereignty from state capacity and policy autonomy. 3 Recall Weber’s emphasis on monopoly of the legitimate use of violence (1946). 4 I take this up more fully in Chapter 4. 5 Kriegel (1995: ch. 2) documents that sovereignty’s early jurists took great pains to differentiate sovereignty from feudal power on the basis of respect for and defense of private property. 6 While the immediate question in many respects concerned the differentiation of the bounds of secular versus theological power, some scholars issued Aristotelian-inspired rejoinders emphasizing the contingency of rule on popular will and a conception of the common good informed by an appeal to iustitia (natural law or justice) that limited the exercise of sovereign prerogative. 7 On the treaty making authority of secular kings in the late Middle Ages, see Meron (1995a). 8 While mystics did not outright dispose of the doctrines or sacraments of the Church, they considered them empty forms and opted instead for “direct spiritual communion with God to receive revelation.” Meister William Eckhart and his Dominican followers, Tauler and Susa, greatly influenced Martin Luther’s thinking (Hastings 1971: 197; Suzuki 1962: ch. 1). 9 The Latin teutisc first appeared in an 845 deed, Teutisci quam et Langobardi, which officially registered the linguistic differences between the royal vassals of Lombard and other “Italians.” (Bloch 1961: 435). 10 The eighth referred to the Scottish king, who had been “a captive and prisoner in the King of England’s hands for some twelve years,” though Scotland was not yet under full English control (Fillastre 1961: 340). 11 I work from two translations (1955 and 1992), and, given slight discrepancies between them, provide the most lucid. Citations appear in the text in the form of Book, chapter, and page. 12 The term is Hobbes’ (1994 [1668]: II.xvii(13), 109). The citation reads as follows: Part, chapter, (paragraph), page. 13 Hegel (1952 [1821], para. 278, p. 180) makes a similar distinction: The fact that the sovereignty of the state is the ideality of all particular authorities within it gives rise to the easy and also very common

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Notes misunderstanding that this ideality is only might and pure arbitrariness while “sovereignty” is a synonym for “despotism.” But despotism means any state of affairs where law has disappeared and where the particular will as such, whether of a monarch or a mob (ochlocracy), counts as law or rather takes the place of law; while it is precisely in legal, constitutional, government that sovereignty is to be found as the moment of ideality—the ideality of particular spheres and functions. That is to say, sovereignty brings it about that each of these spheres is not something independent, self-subsistent in its aims and modes of working, something immersed solely in itself, but that instead, even in these aims and modes of working, each is determined by and dependent on the aim of the whole (the aim which has been denominated in general terms by the rather vague expression “welfare of the state”).

14 Certainly, one might object; the scheme smacks of moralisms passing as good government. 15 Creppell (2003: 48) follows this logic in relation to quelling conflict based on religious liberty. Bodin’s sovereign, she argues, helps constitute a “public space” that is fortified with “the requirement of an acknowledgement of minimal obligation to one another.” For more on this theme, see Weinert (2004). 16 Bodin’s class-consciousness sharply contrasts with the likes of a Cephalus or a Thrasymachus. Engster (2001: 49) uses this same passage to demonstrate Bodin’s abandonment of his earlier methodology in the Methodus: that is, discerning divine and natural law by conducting a “universal comparative study of legal systems.” Bodin raised, but left unclear, the question of how to discern divine and natural law. 17 Bodin entitles Book 5, Chapter II “How to prevent those disorders which spring from excessive wealth and excessive poverty.” Notably, the Statute of the Iraqi Special Tribunal provides jurisdiction to prosecute Saddam Hussein for squandering public assets and funds (2003: Art. 14(b) ), www.globalpolicy.org/ intljustice/general/2003/1210iraqistatute.pdf (accessed on 16 April 2006). 18 A collegium is “a civil association” with “three or more men of the same trade, training, or profession . . . united for the purpose of holding in common such things they jointly profess as duty, way of life, or craft” (Althusius 1964 [1614]: 28f.). 19 Set in a contemporary European context, see Painter (2002). 20 The US Supreme Court invalidated Amendment Two in Romer v. Evans (1996) on an equal protection of the laws argument. 21 The US Supreme Court outlawed miscegenation laws in Loving v. Virginia (1967). 22 On the debunking of various misinterpretations of Hegel, see Stewart (1996) and Weil (1998). 23 I thank Gary Herbert for helping me clarify my remarks on Hegel and capitalism, which stem from Hegel’s critique of civil society, not capitalism per se. 24 Recall our earlier discussion of Bodin in conjunction with harmonic justice and the necessary class-consciousness of the sovereign. 25 That sovereignty collapses under the weight of global processes and functional dispersion replicates ad infinitum debate over sovereignty from at least the 1920s. Clearly, sovereignty studies have stagnated.

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2 Democratic and state sovereignty: two competing conceptions 1 Importantly, Waltz’s formulation does not thwart the pursuit of common good measures such as multilateral pacts to regulate intra-regional capital mobility or the behavior of multinational corporations (DeMartino 1999). 2 Max Weber defines the state as “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory” (1946: 78). 3 On international and world societies as conceptual categories of the English School of International Relations, see Bull (1977) and Buzan (2004). 4 The Duke of Saint-Simon (1967) charges Louis’ vanity and desire for glory as causing class warfare and the affronting of basic life rituals. 5 Barkin (1998: 230) identifies five permutations in the meaning of sovereignty: first, the idea that religion is outside the purview of the state; second, the idea that “a polity could not fully participate in international relations without a legitimate monarch”; third and fourth, the shifts in the locus of sovereignty from monarch to nation, and nation to territorial state; and fifth, a shift from the idea of territory to the idea of individual citizen. 6 Arguably, such states might be “decent consultation hierarchies” or “benevolent absolutisms” that “honor most human rights” Rawls (1999: 63). 7 Emphasis added. Obedience to the law is generally a good thing, but obedience must be questioned as a good in itself when law perpetuates slavery, racism, and other moral wrongs. 8 Ruggie (1998: 188f.) gives a fairly concise account of the violent history of the state. Constitutive wars solidified the “ontology of the units—that is to say, what kind of units they would be”; configurative wars, including the wars of (Spanish, Polish, Austrian, and Austrian) succession, defined the nature and organization of the states-system by affirming the principle of “territorial contiguity” over the principle of “transterritorial dynastic claims”; and ontological certainty and system configuration yielded to “positional wars.” 9 Alternatively, Parekh (2002) gives fine examples in federal systems that grant special recognition of culturally (and ethnically) autonomous communities. 10 Borrowing from Bull (1966: 52), pluralism means that “states are capable of agreeing only for certain minimum purposes which fall short of the enforcement of the law,” whereas solidarism refers to “the . . . assumption . . . of solidarity, or potential solidarity, of the states comprising international society, with respect to the enforcement of the law.” See Weinert (2006) on relating pluralism and solidarism to democratic sovereignty. 11 The Statute of the ILC (Art. 15) defines the progressive development of international law: as meaning the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States. Similarly, the expression “codification of international law” . . . mean[s] the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine. (www.un.org8/law/ilc/texts/statufra.htm) 12 http://ochaonline.un.org/webpage.asp?MenuID=10473&Page=1494. 13 UN DOC A/60/L.1 (2005: para. 139), www.un-ngls.org/un-summit-FINALDOC.pdf. 14 For a critique of Krasner, see Gilbert (1999: 34–41).

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Notes

15 See Chapter 4, “the monarchical principle” on p. 128. 16 We assume, therefore, that these are primarily if not exclusively sovereign state rights and duties. 17 Indeed, Bull claims: [i]t is true that justice, in any of its forms, is realizable only in a context of order; it is only if there is a pattern of social activity in which elementary or primary goals of social life are in some degree provided for, that advanced or secondary goals can be secured. (1995 [1977]: 83) 18 See Wiessner and Willard (1999: 318). John Finnis (1980: 86–90) identified seven “basic forms of human good,” including “life, knowledge, play, aesthetic experience, friendship, religion, and practical reasonableness.” 19 Hegel makes the point forcefully: “Arbitrariness implies that the content is made mine not by the nature of my will but by chance. Thus I am dependent on this content, and this is the contradiction lying in arbitrariness.” (1952 [1821]: para. 15 Addition, p. 230). 20 But freedom is not happiness, though as I have noted freedom makes possible happiness. On the former point, see Franco (1999). 21 But neither does this rule out special rights for minorities, such as the Quebecois in Canada, the Welsh in the United Kingdom, or the Kashmiris in India. On the compatibility of democratic conceptions of equality and special rights for minorities, see Kymlicka (1989), Painter (2002), and Parekh (2002). 22 On a duty of assistance, see Beitz (1979) and Hoffmann (1981). In this regard, Rawls’ difference principle (1993: 6f.), which requires that social and economic inequalities attached to offices and positions open to all under conditions of equal opportunity should be arranged so that they benefit the least advantaged persons in society, is either untenable or negligible. All individuals are of importance, and the plumber and car mechanic are as worthy as the firefighter, teacher, legislator, and president.

3 Structuring democratic sovereignty 1 See the Appendix for a select list of common good sustaining measures. 2 In Rawls’ idiom (1955: 24), sovereignty is a “practice rule,” one “pictured as defining a practice.” Onuf (1989: 51f.) contends that practice rules are both constitutive and regulative. 3 Waever (1998: 101) believes we might understand the EU in terms of suzerainty since “it is a polity somewhere in-between anarchy and hierarchy.” Of course in the EU scenario the omnipotent, monolithic center found in historical suzerain systems is absent. 4 On Metternich’s political intervention in the German Confederation in the form of the Carlsbad Decrees, see Kissinger (1964: 238–44) and Walker (1968: 84–93). 5 Notable exceptions include debate regarding the recognition of post-Soviet states and the states emerging from the disintegration of Yugoslavia. These states were required immediately to accede to all human rights treaties, among other international laws, in order to be accepted as fully sovereign members of the states-system. 6 In this sense, legitimating principles echo Arnold Toynbee’s “challenge-andresponse” theory developed in his A Study of History. I owe this point to Murumba (1993: 840, fn. 23). 7 See the discussion in “Origins” on p. 20, Chapter 1.

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8 This debate replicates discourse since at least the 1880s. See Maine (1915 [1887]); Garner (1925); Loewenstein (1954); and Schmidt (1998). 9 The term is Reus-Smit’s for Wendt (1999: 165). But even Reus-Smit, a selfidentified “holistic constructivist,” does not “problematize” sovereignty, portraying it as a “secondary, dependent variable” with little or no consequences (159). Thus even holistic constructivists—whose aim is to escape “social billiard ball theory” (166) by showing “how culture, norms, and ideas inform the practices of social agents, in turn shaping systems of rule and governance” (167)—treat sovereignty as something of a billiard ball itself: assumed and opaque. Only Onuf (1998: ch. 5) seems to offer a deeper, sophisticated constructivist analysis of sovereignty.

4 Early history 1 Soon after the Protestant Henry of Navarre wed the Catholic Marguerite de Valois, supporters of the Duc de Guise “slaughtered many of the Protestant gentry who had come to Paris for the [1572] wedding in the notorious ‘Massacre of Saint Bartholomew’” (Toulmin 1990: 48). 2 A “revolutionary organization led by the Guise faction,” the Catholic League was created through the Treaty of Joinville on 31 December 1584 with the support of Spain’s Phillip II to depose France’s Henry III (who they murdered in 1589) and destroy the Huguenots (Sutherland 1992: 598). 3 Elizabeth’s policies succeeded in earning England the threat of numerous invasions (1583, 1585, 1586, and 1588) and her the object of assassination conspiracies (ibid.). 4 Barkin (1998: 237, fn. 29) makes a similar point: “under the Treaty of Augsburg, sovereigns had greater religious freedom. In this sense, the Peace of Westphalia . . . placed greater restrictions on the internal authority of Princes than . . . Augsburg, which failed.” 5 We dealt with the subjective condition in the subsection entitled “Logic” on p. 61. 6 Both a 1493 papal bull and the 1494 Treaty of Tordesillas, which divided the world into Portuguese and Spanish spheres of influence, denied Spain direct access to the coasts of Africa. The Spanish Empire thus had to rely on Flemish, Portuguese, Dutch, and French slave traders until Utrecht (Davis 1966: 131f.; Murray 1980: 2f.; Nussbaum 1962: 128; Rosenberg 1994: 40). In 1750, however, after years of friction with Spain, that monopoly came to an end. 7 James Stephen was at the forefront of both the abolition movement and the Evangelical revival in the Church of England (Murray 1980: 23). 8 Cuba was primarily dependent upon the British slave trade for slaves. 9 By 1815, Denmark, Britain, Russia, Austria, Prussia, France, the Netherlands, Sweden, and the United States agreed to abolish the transatlantic slave trade. 10 Murray asserts “Vienna’s proceedings and declaration had given moral force to Britain’s argument.” 11 Cf. Article VI of the Quadruple Alliance of Paris, 20 November 1815: To facilitate and to secure the execution of the present Treaty, . . . the High Contracting Parties have agreed to renew their Meetings at fixed periods . . . for the purpose of consulting upon their common interests, and for the consideration of the measures which . . . shall be considered the most salutary for the repose and prosperity of Nations, and for the maintenance of the Peace of Europe. (cited in Grant and Temperley 1952: 139)

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Notes

12 On the life of Talleyrand, see Nicolson (1961: 289, n. 2). 13 For reasons of space, I omit a detailed account of the Congress of Vienna. See Grant and Temperley (1952: chs 9–10); Holsti (1992); Kissinger (1964); and Schroeder (1994: chs 11–13). 14 Albrecht-Carrié (1968: 60–98) reproduces many of the documents pertaining to Belgian independence. Two are of interest. Protocol (No. 7) of 20 December 1830, signed by the plenipotentiaries of Austria, France, Britain, Prussia, and Russia, de facto recognizes the rebel Belgian’s demands and, pointedly, reminds the Belgians of their responsibilities under international law: “separation from Holland cannot liberate [Belgium] from that part of its duties and its obligations” (p. 66). Protocol (No. 14) of 1 February 1831 raises the issue of “the choice of a Sovereign for Belgium” (p. 81). 15 While France led the invasion of Spain, Austrian troops intervened in the Italian cities to quash revolts that ultimately led to the establishment of the United Provinces of Central Italy. 16 On Metternich’s political intervention in the German Confederation in the form of the Carlsbad Decrees, see Kissinger (1964: 238–44) and Walker (1968: 84–93). 17 Eyck (1972: 141) reproduces an appeal by the Roman Republic (against the Papacy) and directed to French troops not to commit “fratricide.” 18 Eyck (1972: 167f.) reproduces the Russian declaration on Hungary, 27 April 1849—a resounding statement against democracy. 19 Walker (1968) includes many documents related to the 1819 Carlsbad Decrees, a series of repressive measures targeting citizen political movement (84–93). Phillips (1914: 205) calls the decrees “a menace to the liberties of all Europe.” 20 See in particular Droz (1967) and Eyck (1972). 21 The July 1830 revolution in France brought her down on the side of the western liberal states, opposed to the three absolutist, monarchical states of Austria, Prussia, and Russia. 22 On the Crimean war and its negative effects on the Concert system, see Schroeder (1972: ch. XVI) and Binkley (1935: ch. VIII).

5 Sovereignty in the twentieth century 1 See also UDHR, Article 21(3): [t]he will of the people shall be the basis of the authority of government; this will be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. (UDHR, GA Res. 217A (III), UN Doc A/810, at 71 (1948) quoted in Reisman (1990: 867f.))

2 3 4 5 6

Habermas asserts popular sovereignty and human rights “are the modern pillars of legal legitimacy and political power” (1994: 1). See also Franck (1992). United Nations Electoral Assistance, www.un.org/Depts/dpa/ead/ea_content/ ea_context.htm. www.cartercenter.org. www.cartercenter.org/documents/nondatabase/wagingpeaceelections.htm (accessed 19 April 2006). This opposes Krasner’s claim that “[r]ecognition provides benefits and does not impose costs” (1999: 7). Consider also CIA employment of William Hoettl, Adolf Eichmann’s assistant, for espionage purposes. An anonymous interviewer for the Office of Strategic

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Services, the CIA’s forerunner, recorded that Hoett “ ‘is, of course, dangerous . . . But I see no reason why we should not use him.’ The memo added, ‘to avoid any accusation that we are working with a Nazi reactionary and fanatical anti-Russian, I believe that we should keep our contact with him as indirect as possible’” (Kempster 27 April 2001: 26A). Further still, Woodrow Wilson, with the aid of prominent American intellectuals and business leaders, created the “Committee on Public Information”—a propaganda agency from which Adolf Hitler derived valuable lessons on “controlling the public mind”— to fight the “hazard facing industrialists,” meaning the “newly realized political power of the masses,” and “indoctrinate citizens with the capitalist story . . . until they [were] able to play back the story with remarkable fidelity” (Chomsky 1997: 2f.). 7 International-IDEA (n.d.: 1). 8 The relevant passage reads: Action, in so far as it engages in founding and preserving political bodies, creates the condition for remembrance, that is, for history. Labor and work, as well as action, are also rooted in natality in so far as they have the task to provide and preserve the world for, to foresee and reckon with, the constant influx of newcomers who are born into the world as strangers. However, of the three, action has the closest connection with the human condition of natality; the new beginning inherent in birth can make itself felt in the world only because the newcomer possesses the capacity of beginning something anew, that is, of acting [as opposed to behaving]. In this sense of initiative, an element of action, and therefore of natality, is inherent in all human activities. Moreover, since action is the political activity par excellence, natality, and not mortality, may be the central category or political, as distinguished from metaphysical, thought. Arendt praises the distinctiveness of the American Revolution for precisely the element of natality, of creating something anew (1965: 179–214). 9 Recall the ultra-democratic Spanish constitution of 1812, briefly outlined in Chapter 4, p. 131. 10 Also, the UDHR cited in Donnelly (2000b: 9). Dorothy Jones (1992: 50) claims that use of the word “shall” in human rights instruments, given the lack of any enforcement authority . . . takes on a different meaning than that of an obligation to be defined through judicial or administrative review. Instead, it becomes the strongest possible assertion of the conditions that the states think ought to obtain in their ideal world. (emphasis added) 11 India, Indonesia, Kenya, Malaysia, Thailand, and several other developing democracies backed China. 12 www.beyondintractability.org/m/truth_commissions.jsp; see also Goldstone (1996). 13 Meron (1995b) gives an excellent account of the internationalization of internal crimes. 14 Britain invoked the Hague Conventions of 1899 and 1907, which, while declaring certain acts of war illegal, did not criminalize them, and a 1913 international commission established by the Carnegie Foundation “to investigate atrocities committed during the Balkan Wars,” which used the Hague Conventions to identify war crimes (Schabas 2004: 2f.).

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Notes

15 Article VI of the Genocide Convention reads: Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. 16 Article 17(2) provides the meat of the principle of complementarity: national courts have first priority in prosecuting crimes. Subsection 3 outlines the conditions under which the Court can adopt a case when a national court fails: In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility . . . ; (b) there has been an unjustified delay in the proceedings . . . ; (c) the proceedings were not or are not being conducted independently or impartially . . . Additionally, the Court “shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” 17 The statute defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” including “killing members of the group; causing serious bodily or mental harm; deliberately inflicting . . . conditions of life calculated to bring about its physical destruction . . . ; imposing measures intended to prevent births . . . ; forcibly transferring children of the group to another group.” (Article 6). Crimes against humanity, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack [include] murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty . . . ; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution against any identifiable group or collectivity . . .; enforced disappearance of persons; the crime of apartheid; other inhuman acts of a similar character intentionally causing great suffering . . . (Article 7) War crimes include “grave breaches of the Geneva Conventions of 12 August 1949” (Article 8). 18 For strong arguments in support of the ICC, see Cassel (1999). The Preamble, evocative, eloquent, and poignant, deserves to be recounted: The States Parties to this Statute, Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time, Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, recognizing that such grave crimes threaten the peace, security

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and well-being of the world . . . Resolved to guarantee lasting respect for and the enforcement of international justice . . . Have agreed as follows . . . (Rome Statute 1998) 19 Article 125 of the Statute declares the statute open for signature at Rome until 17 October 1998, and at UN Headquarters in New York until 31 December 2000, after which states can accede to the statute. According to the Vienna Convention on the Law of Treaties, 1969, Articles 2(1)(b) and 14(2), acceptance and approval: have the same legal effect as ratification and consequently express the consent of a state to be bound by a treaty. In the practice of certain states acceptance and approval have been used instead of ratification when, at a national level, constitutional law does not require the treaty to be ratified by the head of state. . . . [Accession:] is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states. It has the same legal effect as ratification. Accession usually occurs after the treaty has entered into force. (http://untreaty.un.org/English/guide.asp#acceptance) 20 The statement reads: “This is to inform you, in connection with the Rome Statute . . . that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligation arising from its signature on 31 December 2000 . . . ” Israel did much the same thing on 28 August 2002. (quoted in Schabas 2004: 21, fn. 68) 21 On the intersection of International Relations and International Law as academic disciplines, see Abbott (1999) and Arend (1999). 22 Crossette (30 November 2000). 23 UNGA (1 December 2000: 12), GA/9839, General Assembly Plenary–3, 79th Meeting (PM). 24 The UN asserts that conflict diamonds, as defined in the text, are not confined to Africa, but may come from regions in any country in the world (UN 2000). Compare the definition offered by the Director of Global Witness, a Londonbased non-profit that “works to expose the link between environmental exploitation and human rights abuses,” at an April 2000 meeting (Zaire Government 2000). The Director concentrates on existing conflicts, and hence limits his definition of conflict diamonds to Africa. 25 For a primer on the situations in Angola and Sierra Leone, see UN (2000). 26 The UN credits Global Witness with “putting the issue on the table,” and with “carefully monitoring the [diamond] industry’s adherence to promises made at [the July 2000] World Diamond Congress” (United Nations Foundation 26 July 2000). UNSC Resolution 864 (1993) imposed sanctions against UNITA. See Global Witness (14 December 1998). 27 UNSC Resolutions 1173 (1998), and 1176 (1998). Quotation from the latter. 28 The RUF force “swiftly transformed itself in the 1990s from a rag-tag band of several hundred into a well-equipped force of perhaps as many as 20,000” (Jeter 2000). 29 From 1991 to 1999, the RUF profited handsomely from over $200 million in diamond sales (CNN 5 July 2000). 30 Antwerp oversees $20 billion in diamond trade per year, making it the largest center in the world (CNN 19 July 2000).

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Notes

31 DeBeers controls between 60 percent and 70 percent of the world’s uncut, or rough, diamonds (Project Underground 20 July 2000). 32 Note, however, that the 4–7 percent translates into tens of millions of dollars, which in turn translates into many weapons. 33 For updates and general information, see the Kimberley Process website at www.kimberleyprocess.com. 34 Comments of the Sierra Leonean Minister of Natural Resources Mohammed Deen (CNN 12 October 2000). See also United Nations Foundation (October 2000); and, for a very comprehensive account of certification and identification schemes, see Global Witness (June 2000). 35 Take, for example, the Exxon Valdez oil spill in Alaska, and General Electric’s pollution of New York’s Hudson River with PCPs. 36 For example, the United States and Australia refuse to ratify the Kyoto Protocol to the United Nations Framework Convention on Climate Change, which seeks to reduce greenhouse gas emissions during the target years 2008–12. 37 Recall Gandhi’s aphorism that a society is best understood by the way it treats its animals. Or Kant’s: “[Man] must practice kindness towards animals, for he who is cruel to animals becomes hard also in his dealings with men” (Kant, Lectures on Ethics, p. 239f., cited in D’Amato and Chopra 1991: 24, fn. 21). Or even Charles Darwin, who, according to his son, appreciated the “empathic connection between opposition to slavery and opposition to cruelty to animals . . . ‘The two subjects which moved my father perhaps more strongly than any others were cruelty to animals and slavery’” (ibid.: 26f.). 38 Opinio juris is one of two criteria to determine the existence of customary international law. The other is the actual practice of states. 39 See, for example, Miller (29 March 2001); Associated Press (AP) (29 March 2001); Reuters (30 March 2001); AP (2 April 2001); Reuters (7 April 2001); and, exemplary of fallout from the US decision, AP (14 April 2001). 40 This obviously ignores the moral issue of the whales’ right to life. 41 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction, or the “Landmines Treaty,” (1997). See Appendix for a list of state parties. 42 The Highly Indebted Poor Countries (HIPC) Debt Forgiveness Initiative (1996). www.worldhunger.org/articles/global/caritas3.htm (accessed 4 July 2000). 43 Note that Rawls’ sharpest point about ideal democracies in The Law of Peoples (1999) is that they do not commit aggression. 44 See also Skocpol (1979) and Hobson’s critique of Skocpol (2002). I thank Leonard Seabrooke for bringing the Hobson critique to my attention.

6 Democratic sovereignty in a global world 1 Marx (1969 [1864]: 18). Emphasis added. 2 Kant cited in Onuf (1979: 247, n. 8). 3 These include the First Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966; the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, 6 October 1999; the Convention Against Torture and Other Forms of Cruel and Inhuman Punishment, 10 December 1984; the International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965; the European Court of Human Rights; and the Inter-American Commission on Human Rights (complaints are then passed on to the Inter-American Court of Human Rights).

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4 Barcelona Traction (Belgium v. Spain), ICJ Reports, 1970, para. 33, cited in Damrosch et al. (2001: 694). 5 Barcelona Traction (Belgium v. Spain), ICJ Reports, 1970, para. 34, in (ibid.). See also Nicaragua case (Nicaragua v. United States), ICJ Reports, 1986, pp. 14, 100, cited in Shaw (2003: 116). 6 UNGA Declaration on the Right to Development (1986), Article 1(1), cited in Ragazzi (1997: 148). 7 For example, Ashoka, the Buddhist emperor of India (c.268–233 BC), governed with a public ethics based on tolerance and compassion. Throughout India, inscriptions on the walls of temples and in public places—many of which survive today—communicated the tenets of what we would call a common good. Good government, Ashoka postulated, is government intoxicated with concern for the welfare of all people, encouraging the cultivation of virtuous, other-regarding behavior as the antidote, according to Buddhist thought, to the suffering that is life. By encouraging the devotion of all spiritual, psycho-moral, and socio-political energies toward the cultivation of compassion, Ashoka appears to have translated an abstraction of Buddhist enlightenment into the practical activity of sustaining and advancing the collective (de Bary 1958: 142–50; Sen 1999: 235f.). 8 Recall Donnelly’s stance on human rights and democracy, a stance that assumes perfectly rational, moral individuals. Since this is not a realistic portrait of human beings or group dynamics, there need be institutional procedures to remedy against maliciousness of intent or incident (Weinert 2004). 9 The content of such goods, as will be recalled, is open to debate. I called this a necessary, minor relativity. 10 This idea derives from Aristotle’s insight that injustice (and disorder) arises “when equals are treated unequally and also when unequals are treated equally” (Aristotle quoted in Bull 1995 [1977]: 77). 11 The term is Reus-Smit’s for Wendt (1999: 165). But even Reus-Smit, a selfidentified “holistic constructivist,” does not “problematize” sovereignty, portraying it as a “secondary, dependent variable” with little or no consequences (p. 159). Thus even holistic constructivists—whose aim is to escape “social billiard ball theory” (p. 166) by showing “how culture, norms, and ideas inform the practices of social agents, in turn shaping systems of rule and governance” (p. 167)—treat sovereignty as something of a billiard ball itself: assumed and opaque. Onuf (1998: ch. 5) offers us a deeper, sophisticated, constructivist analysis of sovereignty. 12 This does not obviate the Marcusian inquiry of whether enough quantitative changes translates into a qualitative change (1989).

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Index

aesthetic objectivism 166–7 Althusius, Johannes 40–4 anarchy 2, 6, 11, 72, 74, 75, 80; see also regulative principles of legitimacy architectonics 89, 107, 180 Arendt, Hannah 53, 66, 142–3, 192, 213n8 Aristotle 24, 83, 85, 86, 141, 217n10 atomism 44, 47 Augsburg, Religious Peace of (1555) 13, 101–2, 114–15, 117, 128, 183; see also religious liberty authority 5–6, 10, 20–2, 24–7, 31, 33, 42, 55–7, 61, 67, 70, 95–7, 116, 151, 206n7; see also heteronomy; sovereignty; suzerainty Barkin, J. Samuel 99–100, 129 Bodin, Jean 10, 21–2, 188, 197; hierarchical sovereignty 33–40, 208nn15–17; see also monarchy Britain, slave trade abolition 122, 125–6 Bull, Hedley 14, 78–81, 153 capability 83–4, 144; see also individuality, and self development “civilization,” standard of 90, 96–7 civil society 6, 52–3, 91, 144 class consciousness 37, 39, 46, 48, 52–3, 208nn16 & 17 cognitive scripts 147–8; see also state, socialization (and learning)

common good/commonwealth 12, 34–5, 36–7, 38–40, 42–3, 46, 49, 54, 56, 69–71, 74, 78–9, 84–5, 102, 117, 192, 197, 217n7; common good thesis 42, 111, 135, 141, 143, 153, 174–5; global 15, 89, 112, 139, 170–1, 181, 189; intervention for a common good (internationalist) thesis 39–40, 56, 73, 117, 143, 151, 153, 174; and Puritan Revolution 133–4; value-neutral conceptions 45, 86, 150–1 communities see political community; transnational communities and movements Community of Democracies 137 conflict diamonds 161–5 Congress of Vienna (1815) 125, 126–7, 181; see also monarchical principle contract 40–1 cosmopolitanism 14, 64, 70, 79–80, 107, 118, 149, 154 Council of Constance (1414–18) 9, 13, 24, 29–32 criminal law 154, 155, 156–7, 159–61, 182 critical security studies 77 Cronin, Bruce 63, 78–9, 135 de Blanot, Jean 25 debt forgiveness 170, 173–4, 216n42 debt-swap programs 169–70 de Isernia, Marinus and Andreas 26

240

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Index

democracy 2, 3, 7, 71–2, 85–6, 188; democratic principle 137–46; elections 137, 144; and human rights 150, 153, 193; and human security 142–3, 153; majority rule 56, 192–3 democratic goods 10, 20, 47, 56, 73–4, 78, 82–7, 92, 135, 151–2, 147, 153, 157, 161, 172–3, 188, 193 democratic sovereignty 5, 7–8, 10, 12, 15, 19, 56–8, 72–4, 87, 95–6, 174–5, 183, 195–9; content 95–6; ethical critique 73–4; immanent reading 67–71; international law 71; participative nature 72–3, 81, 90, 143, 174–5, 179, 185; see also common good; democratic goods; sovereignty; theses of democratic sovereignty de Penna, Lucca 22, 180 despotism 33, 34, 39, 47, 48, 50–1, 117, 208n13; plebiscitary 43, 86, 175 diamonds see conflict diamonds dignity 83, 147, 153, 161 dominium directum/potestativum/utile 4, 5, 26 Donnelly, Jack 86, 97, 106, 143, 146, 150–1, 207n1, 217n8 education 142–3, 169 elections 137, 144 elites 6, 8, 20, 50, 54, 59–60, 70, 78, 97, 98, 105, 112, 141, 198 environment 165–73, 181 ephors 40, 42–4 equality/equity 30–1, 36–7, 85 ethics 62, 73–4, 76–87 eudaimonia 86 Fatal Transactions Consumer Awareness Campaign 164 Finnis, John 73–4, 82 France, slave trade abolition 121–2 freedom 51, 54, 76, 85–6; loss of 53, 76, 192 functionality 20–3, 103–5, 112 functionings 83–4 Gandhi, Mahatma 187, 216n37 Germany, and North Sea pollution 166

Gilbert, Alan 6, 54, 66, 81, 84–6, 141–3, 190, 209n14 globalization 59–60, 105, 140–1, 194; protests against 67, 71 Global Witness 162–3 government: theocratic-descendent theory of 24–5; see also state Guantánamo Bay 2–5 Haider, Jörg 150 Hamdi et al. v. Rumsfeld 2 Hegel, G.W.F. 50–5 hegemony 89, 119, 134–5, 184 heteronomy 93–5 Hinsley, F.N. 2, 61, 64, 67–9, 71, 118 Hobbes, Thomas 10, 44–50 human rights 5, 19–20, 40–1, 56, 68–9, 117, 143, 147, 191–2; and democracy 150, 153, 193; individuality and human rights thesis 38, 141, 143, 153, 174–5; universality 146, 150; see also ethics human security 7, 14, 56, 76, 87; and conflict diamonds 165; and democracy and development 142–3, 153 human values see democratic goods ICC see International Criminal Court identity 21, 27, 30–2, 60, 65–6, 82, 113, 175 IEL see international environmental law immanence 67–71; thesis of 62 individuality 50–1, 54, 151, 154, 187; individuality and human rights thesis 38, 141, 143, 153, 174–5; and selfdevelopment 82–5, 102, 141–3; of states 6 instrumental rationality 167, 173 international change 73–5, 107–8, 147–8, 174; normative element 5, 8, 11–12, 28, 60, 70, 75, 82, 91–2, 99, 102, 103, 106–7, 112, 118, 123, 127, 137, 148, 156–7, 173–5, 180, 182–5, 195–6 International Criminal Court (ICC) 157–61 international criminal law 154, 155, 156–7, 159–61, 182

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international environmental law (IEL) 165–6, 172–3 international law 71, 75, 99, 103, 156–7, 170–1, 181; actor perception 149; enforcement 148–50, 170, 213n10; political will, tension with 160; slave trade abolition 126 international order see order, international international relations (IR) 9, 15, 21, 31, 49, 181 international society 14, 101, 116, 118, 154 international system 101, 116 intervention 39–40, 49, 55, 56, 72–3, 79, 95, 117, 140, 151–2; intervention for a common good thesis 39–40, 56, 73, 117, 143, 151, 153, 174; military 130, 134; non-intervention 100, 134; see also responsibility to protect IR see international relations Iraq 2, 4, 148 Jubilee (2000) movement 170, 173 jus cogens 158, 181–2 justice 34, 36–7, 52, 64, 78, 79–81, 188, 189; and deliberation 190–1; difference principle 210n22; Hobbes 46–8; as partial 193; Rawls 189–93 just political order 5, 7, 14–15, 60, 71–2, 74, 76 , 81–2, 89, 100, 102, 107, 180, 184, 186, 191; external/internal 186–8; and relativist goods 102, 180; see also democratic goods Kant, Immanuel 49, 53, 55, 86, 96, 142, 216n37 Keohane, Robert 6, 20, 50, 59, 78, 171 Kimberley Process (certification scheme) 164–5 Krasner, Stephen 11, 21, 59, 97–8, 104, 147–8, 171–2 Kyoto Protocol 172 Landmines Treaty (Ottawa Convention) 173

241

law 23–4, 27, 37, 107, 112; criminal 154, 155, 159–61, 182; environmental (IEL) 165–6, 172–3; natural 34–8, 48–9, 107, 153, 181, 188, 207n6, 208n16; see also international law law cases: Prosecutor v. Erdemovic 74, 77; Rumsfeld judgments 2; Somerset v. Steuart 3–4, 206n2 legitimacy 11–13, 55, 60, 67–70, 90–1, 99–100, 134, 153, 170–1, 196; and human rights 147; and monarchy 129; see also regulative principles of legitimacy Leviathan 44, 47, 48, 50, 66, 195 logic 10, 61, 62, 63–71 majority rule 56, 192–3 management 42 Marx, Karl 47, 52, 65, 71, 89, 142–3, 146, 179, 188, 193 Metternich, Clemens 130–2 Mixed Courts of Justice 126 monarchical principle 128–35 monarchy 33–4, 48, 64, 129; see also despotism Montreal Protocol 172–3 moral objectivity 85, 111, 147 nation (natio) 24, 27–30, 61, 65, 81 national interest 54, 63, 78, 140, 198 nationalism 50, 65–6 natural law 34–8, 48–9, 107, 153, 181, 188, 207n6, 208n16 neorealism see realism objectivism/objectivity: aesthetic 166–7; moral 85, 111, 147; objective condition 64, 66–7 obligations erga omnes 166, 170, 181, 182 ochlocracy 51, 90 Onuf, Nicholas 41, 60, 89, 90, 94, 95, 99, 150, 210n2, 217n11 opinio juris 167, 171, 173, 181–2, 216n38 order, international 14, 78, 79, 81; thick/thin conception 101–2, 183; see also just political order

242

1111 2 3 4 5 6 7 8 9 1011 1 2 3111 4 5 6 7 8 9 20111 1 2 3 4 5 6 7 8 9 30111 1 2 3 4 5 6 7 8 9 40111 1 2 3 4 45111

Index

ordering 23–4, 42, 113, 117 Ottawa Convention (Landmines Treaty) 173 Panchayat Raj 144 Philpott, Daniel 8, 11, 13, 21–3, 60, 91, 180, 206n7 piracy 154 plenitudo potestatis 25–6 political community 5, 59, 61, 64, 68, 73, 77, 118, 196, 198; and sovereignty 2, 8, 60–1, 69–72, 96, 106 politics, world 12 pollution, North Sea 166 power 8, 42, 71–2; soft 158, 186 praxeology 19, 76, 89 progress and progressive theory 12, 15, 55, 60, 75–6, 90–2, 183–6, 193 Prosecutor v. Erdemovic 74, 77 public goods see democratic goods Puritanism 133–4 quasi-states 23, 104, 180 rationality, instrumental 167, 173 Rawls, John 189–93 realism (and neorealism) 59, 66, 198 rebellion 43–4 recognition 4, 20, 23, 25, 27, 55, 97–8, 113; minimal conditions for international recognition thesis 52, 99, 141, 143, 175; rule of 93–4, 129 regulative principles of legitimacy 10–11, 15, 74–5, 91–2, 99–103, 106–7; origins 113–19; types 101–2, 136 relativism: cultural 168; relativist goods 79, 85, 102, 180; religion, wars of 23–4 religious liberty 113–19; see also Augsburg, Religious Peace of (1555) responsibility to protect 40, 56, 72–3, 77, 80, 87, 151–3 rex communis 166–7, 170, 181 Rex in regno suo Imperator est regni sui 25 rights see human rights

royalists, and authority 24–6 Ruggie, John Gerard 65, 103, 106–7, 209n8 Rumsfeld v. Padilla 2 sanctions 126–7, 150, 153, 156, 162, 181 self-help system, anarchy 2, 80 Sen, Amartya 15, 72, 76, 83–5, 100, 128, 139, 142, 145, 151, 153, 168 slave trade abolition 37–8, 119–28, 149 socialization 60, 85, 118–19, 147–8, 186 society: civil 6, 52–3, 91, 144; international 14, 101, 116, 118, 154 solidarism 149, 192, 209n10 Somerset v. Steuart 3–4, 206n2 sovereignty: absolute 26, 33–4, 59; autonomy 50, 70, 97, 116; capitalist 62, 98; confederative 41–4; contingency 64; death or disintegration of 56, 75, 78, 82, 91, 98, 104, 146, 174; definitional principles 93–9; elites 6, 8, 20, 50, 54, 59–60, 70, 78, 97, 98, 105, 112, 141, 198; ethics 10, 62, 73–4, 77–87; exclusivity 63, 87; foundation 92; functional capacity 21–3, 103–5, 112; hierarchical 33–40, 208nn15–17; identity 21, 27, 30–2, 65–6, 82, 113, 175; as legal (or juridical) concept 22–3, 27, 107, 112; logic 10, 62, 63–71; normative revolutions 11; objective condition 64, 66–7; organized hypocrisy 98; origins (historical) 24–7, 64; ownership 4; plenitudo potestatis 25–6; as political concept 106–7; popular 6–7, 26, 50, 54, 61–3; practice 11, 99; prerogative 20, 25, 54, 70–2, 88, 92, 96, 105, 146; principle 11, 20; process 56, 60, 61, 73, 197; recognition 4, 20, 25, 27, 55, 97–8, 113; regulation or restriction 8–9, 11, 34, 35–8, 47–9, 50–1, 72, 75, 78, 88, 90–2, 111; scope 103–5; singular 44–50; socialization 60, 85, 118–19, 186; space (and transgressive nature of)

Index 1111 2 3 4 5 6 7 8 9 1011 1 2 3111 4 5 6 7 8 9 20111 1 2 3 4 5 6 7 8 9 30111 1 2 3 4 5 6 7 8 9 40111 1 2 3 4 45111

243

10, 32, 62, 63, 71–5, 197; subjective condition 64, 118; time 10, 62; transcendent nature 62–7; see also democratic sovereignty; dominium directum/potestativum/utile; regulative principles of legitimacy space 10, 32, 62, 63, 71–5, 197 Spanish Constitution (1812) 131, 134 Spitsbergen, Treaty of (1920) 4 state 6, 24, 50, 56, 61, 92, 103, 198; as complete 60–5, 71, 73–4, 80, 87; equality 30–1; identity 30–2, 60, 65–6, 175; socialization (and learning) 60, 85, 118, 147–8, 186; state goods 75, 123, 135, 140; violence (and competition) 2, 62, 66, 71, 75, 81, 209n8 states, quasi 23, 104, 180 state system 92, 95, 106; origins 20, 23, 30–2; see also anarchy stewardship, environmental 166–7, 169 subjectivity 64, 118 subsidiarity 41, 43 sustainable development 169 suzerainty 92–3, 95, 112, 210n3 symbiotici 41

135, 141, 143, 153, 174–5; incontrovertibility of life 47, 73, 111, 153; individuality and human rights 38, 141, 143, 153, 174–5; internationalist (intervention for a common good) 39–40, 56, 73, 117, 143, 151, 153, 174; minimal conditions for international recognition 52, 99, 141, 143, 175; populist 42, 137, 143, 174–5, 187; sociality of sovereignty 55–6, 99, 111, 141, 143, 153, 175; strong/weak 183; see also democratic sovereignty time 10, 62, 75–6 transnational communities and movements 7–8, 53–4, 56, 63–4, 71–4, 78–9, 81, 87, 107, 112, 135, 139, 141–2, 148, 196–7 Troppau Circular 132–3

Talleyrand, Charles Maurice de 129 Taylor, Charles (Liberian president) 162 territory/territoriality 30, 96, 97 theocratic-descendent theory of government 24–5 theses of democratic sovereignty 62; accessibility of government and public policy making to all 53–4, 143, 174–5; common good 42, 111,

Waltz, Kenneth 6, 20, 59, 63, 75, 196, 209n1 Warsaw Declaration 137–9 wars of religion 23–4 Weber, Cynthia 11, 112 Weber, Max 66, 72 Westphalia, Peace of (1648) 13, 20–4, 113, 116–18 world order see order, international

UN democracy caucus 139 values, human/core see democratic goods violence 2, 62, 66, 71, 75, 81, 209n8