Different Conversations
Since the conclusion of the Cold War, there has been a significant increase in academic research focused on state sovereignty Many scholars either support the idea that state sovereignty is declining, transforming, or even facing extinction, while others challenge the notion of whether state sovereignty ever truly existed.
2 See Henry Schermers, Different Aspects of Sovereignty, in STATE, SOVEREIGNTY, AND
INTERNATIONAL GOVERNANCE 185, 192 (Gerard Kreijen et al eds., 2002) ("[U]nder international law the sovereignty of States must be reduced.").
3 See, e.g., ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY:
DUNWODY COMMENTARY highlights the existence and significance of a smaller body of work that views the reduction of sovereignty as a threat to essential values This perspective advocates for policies designed to reinforce or restore sovereignty.
While the literature seems to treat sovereignty as a singular concept, it actually includes diverse interpretations that relate to distinct fields of study.
Sovereignty fundamentally involves a set of practical questions related to ultimate authority, distinguishing it from shared or subordinated powers It encompasses various aspects, including: (1) the authority to determine public order and legitimate use of force within a state's territory; (2) the normative status of states as equal members in the international system; (3) a state's empirical ability to manage its internal affairs and policies independently of external influences; and (4) the imperative for domestic policymaking to uphold or establish the state's sovereignty.
The concept of sovereignty is evolving, shifting from the idea of independent action to a framework that emphasizes participation in international regulatory agreements Scholars argue that states cannot claim sovereign rights if they fail to fulfill their fundamental responsibilities to their citizens This perspective advocates for a redefinition of sovereignty, focusing on the government's duty to care for its citizens and to regulate their interactions with the international community responsibly.
Scholars like Stephen D Krasner highlight that the principles of sovereignty often fail to manifest in practice due to the lack of authoritative institutions and existing power imbalances Similarly, Louis Henkin critiques the concept of sovereignty itself, describing it as a fundamental error that has created a detrimental mythology surrounding state authority.
5 See, e.g., JEREMY RABKIN, WHY SOVEREIGNTY MATTERS (1998) (arguing that the United States has allowed too much national policy to be decided through international channels and proposing a reassertion of American sovereignty).
6 See John H Jackson, Sovereignty-Modern: A New Approach to an Outdated Concept,
7 See CARL SCHMrrr, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF
SOVEREIGNTY 5-15 (George Schwab trans., MIT Press 1985).
9 See CHRISTIAN REus-SMiT, THE MORAL PURPOSE OF THE STATE 157 (1999).
1019 unilateral control over any given realm of activity.' All of these usages pertain to different conversations, and any conflation of them will immediately lead to confusion.
This Commentary is concerned exclusively with the first two usages. These specify juridical relationships foundational to domestic orders and to the international order, respectively."
Sovereignty and Domestic Legality
The concept of "sovereignty" in domestic law reflects an anti-constitutional doctrine rooted in the ideas of Jean Bodin and Thomas Hobbes, which posits an ultimate authority that exists above the law, serving as the unchallenged source of domestic power According to Hobbes, this notion emphasizes the presence of an uncommanded commander who holds supreme authority within a state.
"[T]he sovereign of a commonwealth, be it an assembly or one man, is not subject to the civil laws."' 3 He further explained:
10 See Jackson, supra note 6, at 782-89 Further:
When individuals argue against the acceptance of a treaty by the United States due to concerns about sovereignty, they typically mean that key decisions should be made at the national level rather than through international agreements.
Juridical doctrines differ from empirical observations and policy considerations, as law must connect to empirical realities without merely yielding to short-term effective actions Instead, law establishes standards for evaluating and potentially resisting these actions, which must be interpreted in the context of long-term policies These legal standards reflect the overarching policies of the domestic or international community, rather than the immediate policies of any specific actor.
Jean Bodin, in his work "Six Books of the Commonwealth," defines the sovereign as a ruler with an absolute and unqualified right to command Similarly, Thomas Hobbes, in "Leviathan," portrays the sovereign as the exclusive lawmaker, unbound by civil law Both philosophers emphasize the central authority and power of the sovereign in governance.
13 HOBBES, supra note 12, at 211 Hobbes continued:
A person possesses the authority to create and abolish laws, allowing them to liberate themselves from any constraints by repealing troublesome regulations and establishing new ones Consequently, true freedom lies in the ability to act according to one's will It is impossible for an individual to be bound to themselves, as the power to impose restrictions also grants the power to remove them; thus, one who is solely bound to themselves is ultimately not bound at all.
Sovereign power is defined as the authority whose actions remain independent and are not subject to the legal control of others, meaning they cannot be invalidated by the will of any other individual This concept is articulated in Hugo Grotius's work, "De Jure Belli ac Pacis," emphasizing the autonomy of sovereign entities.
Sovereigns are inherently bound by the divine laws of nature, which cannot be overridden by any individual or state However, they are not subject to the laws created by themselves or the commonwealth, as this would imply subjection to their own authority, which contradicts the notion of sovereignty This misunderstanding places the laws above the sovereign, effectively establishing a higher authority and a system of punishment that leads to endless cycles of sovereignty and confusion, ultimately threatening the stability of the commonwealth.
This perspective views any division of powers as fundamentally detrimental, asserting that separating the authority of a commonwealth ultimately leads to its dissolution, as divided powers inherently undermine one another.
The uncommanded-commander doctrine has lost its supporters, giving way to an alternative view of sovereignty that dates back to the sixteenth century, notably in the writings of François Hotman This perspective sees sovereignty as defined by legal norms, whether rooted in communal traditions or formal documents According to this constitutive account, sovereignty is held by the entire political community, and genuine expressions of sovereign will are identified through a widely acknowledged legal framework that establishes legitimacy This framework not only grants authority to specific individuals at designated times and within certain competencies but also serves as a limitation on governmental power.
Hobbes criticized the concept of divided powers, suggesting that it relies on individuals who, while professing to uphold the law, seek to make legal interpretations dependent on their own knowledge rather than the authority of the legislative power.
François Hotman, in his work "Francogallia," asserts that French kings have historically been bound by specific laws and agreements, establishing a customary framework for governance This idea is explored in "Constitutionalism and Resistance in the Sixteenth Century," edited by Julian H Franklin, which highlights the significance of legal constraints on royal authority during that era.
In his influential work, H.L.A Hart emphasizes that for any legislative action to constitute law, it must adhere to established fundamental rules that outline the essential procedures of lawmaking This perspective highlights the critical separation between law and morals, asserting that compliance with these procedural norms is what legitimizes legislative acts.
FLORIDA LAW REVIEW legitimate exercise of power Even a quasi-absolute dynastic monarch cannot stand above the customary law on which his rule is founded 9
In times of crisis, the prevailing understanding of governmental authority often faces scrutiny, particularly regarding its ability to address serious threats to public order The Constitution is frequently described as not being a "suicide pact," suggesting that it inherently allows for some discretionary authority to suspend constitutional norms when confronted with existential dangers This perspective argues that even if the Constitution reflects the will of the political community, its rigid interpretation cannot adequately guide responses to unforeseen exigent circumstances This concept was notably explored in the Weimar-era writings of Carl Schmitt.
Schmitt, the insights of Bodin and Hobbes, obscured in normal times, become salient at the moment of "the exception." 22
Since the events of September 11, 2001, there has been a resurgence of Schmitt's ideas in discussions surrounding the broadening of emergency powers Although these arguments often rely on dubious evaluations of the current crisis, they are grounded in a solid conceptual framework Schmitt's exploration of the connection between sovereignty and constitutionalism, despite its potential for misuse, continues to hold significant legal authority.
Carl Schmitt noted that modern constitutionalism views the state as equivalent to the legal order, emphasizing that ultimate authority derives not from individuals or social dynamics, but solely from the sovereign order within the unified system of norms.
20 This phrase, though surely not all of the uses to which it has been put, can be traced to Justice Jackson's dissent in Terminiello v City of Chicago, 337 U.S 1, 37 (1949) (Jackson, J., dissenting).
21 "[Tlhe authority to suspend valid law-be it in general or in a specific case-is the actual mark of sovereignty." ScHmrrr, supra note 7, at 9
Sovereignty and International Legality
SOVEREIGN EQUALITY AND "BOUNDED PLURALISM" IN THE
Sovereignty as a Set of Legal Presumptions.for a
Sovereignty is a foundational principle in international law, influencing three key areas: the recognized sources of law, the relationship between international and domestic legal systems, and the prohibition of coercive interference in a state's internal matters This principle implies that a state is only obligated to adhere to international laws to the extent of its actual or implied consent Furthermore, while a state's international obligations are binding at the international level, their legal effect within the state is contingent upon incorporation into domestic law.
The inviolability of a state's territorial integrity and political independence is fundamental, standing firm against threats or the use of force, as well as extreme economic or political coercion This principle is presumed to endure even when a state violates international legal norms Although these presumptions can be challenged, they remain significant obstacles to the creation of new international norms and the enforcement of existing ones.
The vigorous debate surrounding these hurdles highlights the tension between state sovereignty and the pursuit of universal justice in international law Advocates of international legality argue that state prerogatives hinder the global progress of legal frameworks, viewing sovereignty as a domain of lawlessness that must diminish for international law to thrive.
An alternative rhetorical strategy aligned with the concept of "transcendent justice" involves redefining sovereignty to align with overarching ideals This redefinition simplifies a state's sovereignty to its fundamental responsibility of meeting legal obligations, effectively stripping away elements that oppose this broader vision.
28 Report of the International Law Commission, Draft Articles on State Responsibility art 50(b), 35 U.N GAOR, Supp (No 10) at 59, U.N Doc A/35/10 (1980), reprinted in [198012 Y.B. Int'l L Comm'n 30, U.N Doc A/CN.4/SER.A/1996/Add.l [hereinafter 19961LCArticles on State
Critics argue that the growing influence of international legal institutions poses a challenge to national sovereignty, viewing international legality and state authority as opposing forces For instance, Rabkin discusses how international agreements can undermine the sovereign power of the United States.
30 See, e.g., CHAYES & CHAYES, supra note 3, at 27; DENG ET AL., supra note 3, at 32-33;
An alternative perspective on sovereignty within the international legal system highlights the ongoing and significant disagreements among its members regarding fundamental justice, particularly concerning internal political organization While the UN era has progressively narrowed the boundaries of acceptable political practices—excluding fascism, colonialism, apartheid, and ethnic cleansing—the system still embraces a diverse array of political moralities Additionally, international legal processes counteract the tendency of powerful states to use universal principles as justifications for unilateral actions against weaker states and marginalized groups Viewing international legality through the lens of "bounded pluralism" rather than "transcendent justice" positions sovereignty-oriented constraints as essential to the establishment and implementation of international norms, rather than merely obstructive.
The Persistence of "Antiquated" Sovereignty Within
IN DEFENSE OF "BOUNDED PLURALISM" AS THE BASIS
Instead of viewing sovereignty-oriented presumptions as flaws to be eliminated from the evolving international legal system, I propose a nuanced defense of the barriers they create This defense is grounded in two key aspects: the ethical foundations of political morality and the pragmatic considerations of international policy.
State Sovereignty and Political Morality
The moral justification of a pluralist international order rests on the assertion of a collective moral right to self-determination This assertion
In his article, W Michael Reisman argues that regime change is often detrimental, emphasizing the importance of state sovereignty and the right of territorial communities to self-govern without external interference He asserts that the international legal framework largely hinges on respecting these principles, with state sovereignty upheld except in extreme cases of severe human rights abuses.
The concept that individual identities are profoundly influenced by the communities in which people are deeply embedded suggests that political values can only be evaluated within the unique context of those communities' characteristics and traditions This perspective raises concerns as it implies that individuals do not possess a recognizable identity separate from their established relationships, which cannot be reconsidered through rational thought.
The concept of "constitutive" communities aligns with existing political entities, yet an alternative argument for collective rights can be derived from ontological individualism, moral universalism, and political rationalism This perspective highlights the individual's reliance on collective initiatives that necessitate political choices, focusing on present and future implications rather than historical ties Consequently, justice is constrained by the limits of political communities, not due to cultural factors, but for practical considerations.
The "transcendent justice" approach in international law aligns with deontological liberalism, which emphasizes the importance of respecting individuals as rational decision-makers This perspective contrasts with teleological approaches, such as utilitarianism and perfectionism, which prioritize the maximization of social well-being based on subjective preferences or a defined conception of the good life Deontological liberalism asserts that human rights are inherent to every person, while alternative views may challenge the individualistic foundations of liberalism and propose different moral justifications for political action.
69 MICHAEL J SANDEL, LLBERAusM AND THE LIMrrs OF JUSTICE 21 (1982)
70 The starting point for discussions of "deontology" in contemporary political theory is
John Rawls' "A Theory of Justice" (rev ed 1999) has sparked extensive debate on various philosophical issues Critics like Ronald Dworkin challenge the deontological distinction between "the right" and "the good," arguing that liberalism neglects a meaningful collective purpose William A Galston questions Rawls's effort to create a politically neutral liberalism regarding the human good Michael Sandel critiques the deontological view of the human subject as implausible, while George Sher contends that a non-neutral state could better achieve Rawls's objectives without undermining liberal values For a comprehensive overview of these discussions, Will Kymlicka's "Liberalism, Community, and Culture" (1989) provides an excellent summary of the criticisms directed at deontological liberalism and explores potential responses.
71 See RAWLS, supra note 70, at 24-36.
DUNWODYCOM&FJTARY institutions should establish liberal legal rights, as deontologists believe these rights stem from fundamental principles This perspective emphasizes that the primary function of political institutions is to acknowledge and enforce these rights.
Deontological liberalism shapes the role of politics in society and influences the moral standing of the state It distinguishes between two moral realms: "the right," which addresses justice and fairness in balancing the competing claims of individuals, and is linked to universally applicable liberal rights; and "the good," which pertains to the essence of a fulfilling life and the aims of human endeavor, drawing from various comprehensive doctrines of human flourishing.
Due to the inherent controversies surrounding these doctrines, the various interpretations of "the good" are often overshadowed by a higher understanding of "the right." This perspective leads to a moral absolutism regarding "the right," while simultaneously fostering a moral subjectivism concerning "the good."
Politics should not influence our understanding of what is right or good Determining what is right should be based on fundamental principles beyond political influence, while individual perspectives on the good should be formed independently, either alone or through voluntary associations.
John Rawls played a pivotal role in shaping a deontological perspective on human rights; however, his subsequent work diverged significantly from his foundational ideas presented in A Theory of Justice His earlier natural law principles evolved into more contingent concepts, particularly concerning international political morality, as articulated in The Law of Peoples Consequently, critics of sovereignty influenced by Rawls have found themselves in stark disagreement with his later views.
The Rawlsian Theory of International Law critiques the evolution of justice and political morality, arguing that it has shifted towards a relativistic and context-based approach This transformation undermines the foundational role of rights and liberties, which are no longer grounded in universal principles or liberal perspectives on human nature.
75 See RAWLS, supra note 70, at 24-36.
Deontologists argue that subjectivism is not based on skepticism; instead, they believe that objectively valid judgments regarding the good life can only yield "the good" when individuals willingly accept them.
The Florida Law Review highlights that the deontological framework focuses on substantive grounds for justice rather than procedural rules, indicating its role in informing political participants rather than justifying external authority This perspective raises the notion that the concept of "the right" exists independently from the often contentious judgment of "the good," suggesting a level of objectivity and universality in moral reasoning.
"the right" that tend to weigh against deference to the political process in this realm The widespread popularity of judicial review of legislation among deontological liberals confirms this tendency °
If justice is universal and not confined to specific circumstances, and if the good life is determined by individual choice, then politics should focus on a narrow range of objectives Consequently, the role of the state and the laws it creates lack independent moral importance.
Justice cannot be fully defined without a collective understanding of human flourishing, suggesting that universal rights are influenced by the specific values of political communities The pursuit of individual well-being relies on essential public goods, which face challenges due to collective action problems, such as free riding Addressing these issues often necessitates collective decisions that may involve coercive measures Deontological liberals argue that these collective decisions should be constrained to those that can be justified.
State Sovereignty and International Policy
PATRIOTISM AND THE DUTY TO UPHOLD A COMMUNITY'S POLITICAL INDEPENDENCE
Viet Dinh defines "nationalism" as loyalty to a political community that includes all permanent residents, regardless of their status He emphasizes that the international legal system assigns "nationality" based on ties to a territorial state, which in turn grants sovereign rights to the distinct "peoples" represented by those states Thus, Dinh's concept of nationalism is fundamentally linked to established territorial boundaries.
Today, nationalism often signifies an ethno-nationalism that challenges the alignment of state borders with community identity, emphasizing loyalty based on shared race, language, culture, or beliefs, and advocating for associated privileges Even American nationalism, which is the primary focus of Dinh's discussion, has experienced moments of nativism However, Dinh intentionally distinguishes his perspective from ethno-nationalist views, presenting it as a strong and unapologetic form of patriotism.
Patriotism, much like sovereignty, is subject to diverse and often conflicting interpretations Typically, discussions around patriotism present two extreme viewpoints: one that is overly provocative and unreasonable, and another that aligns too closely with liberal-universalist values, stripping it of meaningful significance Many common expressions of patriotism tend to diminish the moral worth of foreigners or even fellow citizens who prioritize global concerns.
99 Some such invocations can be seen in the current "war on terrorism" rhetoric The September 1I attacks inevitably remind us of our common identity and destiny as a people The victims, after all, were targeted solely for inhabiting buildings that the attackers identified as symbols of America Yet in our shared outrage, Americans seem divided between those who regard the attacks as an affront primarily to the humanity of the victims (to whom we feel a special bond as Americans) and those who regard the attacks as an affront primarily to the nation Whereas the former demand only to bring individual perpetrators to justice and to restore safety, and assess
Liberal universalists view themselves as patriots due to their public spirit and emotional ties to their nation's history and symbols However, if patriotism presents unique intellectual challenges, these challenges arise from a perspective that does not fit into traditional definitions of patriotism.
Universalism allows for an ethical division of labor, emphasizing that individuals should focus their efforts on those with whom they share special ties rather than spreading their actions uniformly across humanity Effective social action necessitates empowered groups capable of making decisions and coordinating projects, as collective responsibility is essential for meaningful action Furthermore, universalist political morality acknowledges that goals must have a specific scope, recognizing the importance of community boundaries in ensuring equal treatment for all members In cases of irreconcilable conflicts between communities, universalists maintain that individuals are not required to forsake their own communities, highlighting the moral standing of distinct groups even within a universalist framework.
Patriotism challenges liberal-universalist political morality by prioritizing loyalty to a political community's unique interests and values over universal ethical imperatives This perspective supports the use of force as a means to reassert national strength, particularly in response to perceived threats that question America's resolve It suggests that America's vulnerability stems from a lack of fear instilled in adversaries, valuing displays of might as a demonstration of power and retribution against those who show disrespect, even if they haven't directly attacked This notion of patriotism may resonate with individuals seeking vindication through national strength, yet rejecting such views cannot be deemed unpatriotic.
100 Stephen Nathanson, In Defense of "Moderate Patriotism, "99 ETHICs 535, 541 (1989).
101 Compare id at 535 (elaborating a patriotism consistent with universalist premises), with
Alasdair Maclntyre, Is Patriotism a Virtue?, in THEORIZING CrrIZENSHIP 209 (Ronald Beiner ed.,
Citizens are obligated to support their political community during conflicts, even when it may be in the wrong, or they must promote a specific understanding of justice that aligns with the community's unique character and traditions, despite the possibility that an alternative conception of justice may be objectively better.
The collective moral right to self-determination does not inherently accept or reject certain assertions but emphasizes the importance of a political community's ability to protect its interests and uphold its values When foreign influences threaten this capacity, it becomes morally justifiable to defend the community's sovereign rights, even if those rights have been misused This argument does not dismiss universal moral principles; rather, it highlights a paradox within them, recognizing that moral rights create a protected space for individuals or groups to exercise their discretion, even in morally questionable ways Thus, the notion of "Our country right or wrong" can align with objective moral standards in this limited context.
There exists a patriotic responsibility to safeguard one's community from undue foreign influence or intervention, even while addressing the internal injustices that outsiders may highlight Likewise, an oppositionist, despite having valid reasons to advocate for a foreign-inspired system of governance—believing it to be morally superior to local traditions—may still bear a duty to prioritize the integrity of their own community.
1995) (elaborating a patriotism sharply at odds with universalism).
102 See JEREMY WALDRON, LIBERAL RIGHTS 63-64 (1993)
103 Dinh, supra note 1, at 877 (quoting Commodore Stephen Decatur, Toast at a Dinner in Norfolk, Virginia (Apr 1816), in ALEXANDER SLIDELL MACKENZIE, LIFE OF STEPHEN DECATUR
The United States often faces minimal genuine threats to its sovereignty, yet its reservations to human rights treaties exemplify a complex issue American international lawyers frequently argue for the withdrawal of these reservations, claiming they enable unjust practices However, these lawyers may resist foreign attempts to disregard the reservations, based on the belief that they are not only inconsistent with the treaties' objectives but also separable from the ratified agreements Ultimately, the U.S cannot be held accountable for obligations it has explicitly rejected There is no contradiction in advocating for respect of treaty reservations deemed unjust, and while patriotism may not influence the argument's merits, it does create a responsibility for U.S lawyers to defend this position in international discussions.
DUNWODY COMMENTARY emphasizes the importance of accepting appropriate foreign assistance in addressing state misconduct However, when such misconduct severely undermines a community's political independence, the expected responsibilities may be compromised It is essential to note that even significant wrongdoing may not completely eliminate the sense of patriotic duty among citizens.
This perspective on patriotism, rooted in the collective right to self-determination, holds particular importance for impoverished and vulnerable nations It highlights the motivations for citizens, even in repressive regimes, to oppose foreign-led "regime change" initiatives Any moral justification for a state's infringement on the territorial integrity and political sovereignty of others must be found in different arguments.
CONCLUSION
Viet Dinh emphasizes the importance of sovereignty and patriotism in the post-September 11 context, highlighting the need to address complex questions surrounding these ideas His reference to the often-criticized Decatur toast, "Our country right or wrong," invites reflection on how we engage with others who hold different national loyalties and moral perspectives.
International law has significantly expanded into areas traditionally viewed as domestic matters, yet respect for state sovereignty remains a crucial aspect of the international legal framework This principle of self-governance is fundamental to international order, even when the resulting decisions may seem unjust Disagreements about justice are inherent to human society, requiring a pluralistic approach Collectives have a right to hold differing views on justice, and it is essential for external actors to respect these collective decisions Additionally, allowing powerful nations to impose their interpretations of justice on weaker states is not a viable solution.
While there have been valid exceptions to the respect for sovereign authority, these should not undermine the overarching principle Maintaining a respectful and orderly relationship among those with differing views on public order is essential for a stable and effective governance framework.