Insofar as these two views converge on these substantive points, it is possible to see May, and Altman and Wellman, as in fact working on the same side of an ongoing, cross-disciplinary project of revising the traditional understanding of sovereignty. This scholarly project itself has tracked corresponding shifts in the practices of the international community away from the traditional strictures of sovereignty. In this section, I argue that given such changes in the international community, and the evolution of international morality, any view that defends a foundational role for state sovereignty without carefully investigating the relevant institutional alternatives runs a substantial risk of importing obsolete concepts from the traditional Westphalian doctrine.
The traditional understanding of state sovereignty is generally traced back to the Peace of Westphalia signed in1648. As John Jackson describes this treaty:
To read the128clauses of that document is to wade through dozens of provi- sions dealing with minute details of ending the Thirty Years’ War, restoring properties to various feudal entities within their territories. It is hard to sur- mise from these any general principles of “sovereignty,” but as a “Peace Treaty Between the Holy Roman Emperor and the King of France and Their Respective Allies,” the compact represented the passing of some power from the emperor with his claim of holy predominance, to many kings and lords who then treasured their own local predominance. As time passed, this developed into notions of the absolute right of the sovereign, and what we call “Westphalian sovereignty.”15
Although the core of Westphalian sovereignty can be described as the notion that “states exist in specific territories, within which domestic political author- ities are the sole arbiters of legitimate behavior,” this “fundamental norm” co- evolved with other, mutually supporting tenets of sovereignty.16Collectively,
14As Altman and Wellman say in a footnote: “His two principles arguably give May the best theory of international criminal law to date, but, as we show below, the international harm principle is problematic. The security principle on its own and suitably elaborated would be theoretically preferable.” Altman and Wellman (2004),40.
15John H. Jackson, “Sovereignty-Modern: A New Approach to an Outdated Concept,”97Amer- ican Journal of International Law(2003),786.
16Stephen Krasner,Sovereignty: Organized Hypocrisy(Princeton: Princeton University Press, 1999),20.
State Sovereignty as an Obstacle to International Criminal Law 45 the norms of Westphalian sovereignty were “not about principles of justice,”
but rather “about defining the prerogatives of sovereign states and facilitating diplomacy between them.”17One, for example, is the principle ofcujus regio ejus religio(the doctrine that the ruler’s religion determines the religion of his subjects), which, according to Allen Buchanan, “was designed to prohibit reli- gious imperialism with its inevitable destruction and instability, but [which]
helped to nurture a much more general principle prohibiting intervention against sovereign states that has come to be a central tenet of the international system that grew out of the Peace of Westphalia.”18The fact that Westphalian sovereignty developed as an effort to defend the rights of rulers as heads of state from interference by other heads of state also explains its insensitivity to the internal characteristics of the sovereign state. For example, all sovereign states, by Westphalian logic, are entitled to independence from external interference, regardless of their relative size or power. Moreover, as Jackson has noted, “one can easily see the logical connection between the sovereignty concepts and the very foundations and sources of international law. If sovereignty implies that there is ‘no higher power’ than the nation-state, then it is argued that no international law norm is valid unless the state has somehow ‘consented’ to it.”
Some scholars argue that Westphalian sovereignty was never a fixed norm.19 Even if it was at one time helpful in understanding and governing international relations, however, the international system has changed in some dramatic ways since the Nuremberg trials at the end of World War II. More recently, the establishment of institutions such as the World Trade Organization and the International Monetary Fund, and of a variety of international treaties on issues such as human rights or the environment (with associated monitoring bodies), suggests that the international community is moving even further away from Westphalian sovereignty as an organizing concept. For these reasons, when we debate the merits of various aspects of sovereignty in the transformed world of today, we should remain alert to the possibility that traditional sovereignty concepts may be neither descriptively apt nor morally justifiable outside of the international structure in which they developed.
Moreover, the term “sovereignty” is multiply ambiguous, which raises the danger that, in debating the merits of various aspects of sovereignty, we may shift from one meaning to another unnoticed. Richard Haass specifies four distinct meanings of it, as follows:
Historically, sovereignty has been associated with four main characteristics:
First, a sovereign state is one that enjoys supreme political authority and a
17Rodman (2006),26.
18Allen Buchanan, “Rawls’s Law of Peoples: Rules for a Vanished Westphalian World,”115 Ethics(2004),35–67.
19Krasner (1999).
46 Kristen Hessler monopoly over the legitimate use of force within its territory. Second, it is capable of regulating movements across its borders. Third, it can make its foreign policy choices freely. Finally, it is recognized by other governments as an independent entity entitled to freedom from external intervention.20 Each of these attributes may be more or less satisfied for any particular state. In particular, although some states might be more effective than others at controlling cross-border movements, no state today can control all cross- border flows effectively. Indeed, a particular state’s ability to do so may change suddenly due to external factors, as when a humanitarian crisis or war in a neighboring state creates a cross-border refugee movement or an illicit arms trade. Therefore, a workable conception of sovereignty, one that is capable of discriminating between sovereign and nonsovereign entities, will have to asso- ciate sovereign status with something less than full control of the state’s borders.
In addition, these multiple attributes of sovereignty do not necessarily travel together. A state’s government might enjoy supreme political authority within its territory, for example, without being recognized by other governments as entitled to freedom from external intervention (perhaps because it usurped political authority from the prior government), or, conversely, gain the offi- cial recognition of other states without possessing supreme political authority within its territory.21
Finally, the assumptions of traditional Westphalian sovereignty are difficult to defend given today’s standards of political morality. Most theorists now agree that, if conditions within a state get bad enough, some cross-border interven- tions may be permissible for humanitarian reasons. The emerging consensus on the view that violations of traditional sovereignty may be justified for some circumstances is part of what Michael Reisman has in mind when he says that anyone who “continues to trumpet terms like ‘sovereignty’ without relating them to the human rights conditions within the states under discussion” is using the terminology of sovereignty anachronistically.”22
A serious look at different kinds of interventions and the possible justifi- cations for prohibiting them reveals the difficulties in defending noninter- vention as a foundational norm in international society. Aggressive military
20Richard Haass, “Existing Rights, Evolving Responsibilities,” Remarks at the School of Foreign Service and the Mortara Center for International Studies, Georgetown University,2003. Cited in John H. Jackson, “Sovereignty-Modern: A New Approach to an Outdated Concept,”97The American Journal of International Law(2003),786.
21Allen Buchanan, “Recognitional Legitimacy and the State System,”28Philosophy&Public Affairs(1999),46–78.
22Michael Reisman, “Sovereignty and Human Rights in Contemporary International Law,”84 American Journal of International Law(1990),876.
State Sovereignty as an Obstacle to International Criminal Law 47 interventions, in the form of invasion and occupation, are obviously problem- atic from a variety of perspectives; therefore, the justification for prohibiting such interventions, absent extraordinary circumstances, is fairly obvious. How- ever, such interventions are only the most drastic kind; other kinds of cross- border interventions include a variety of diplomatic, economic, and other kinds of pressure, such as economic sanctions or divestment with the aim of changing domestic policy, deploying peacekeepers, election monitoring, aid intended to help pro-democracy factions, linking trade or aid to conditions attached to domestic policies, and the like. If interventions in general violate sovereignty as nonintervention, then a blanket presumption in favor of non- intervention implies a presumption against even these kinds of interventions.
For example, Krasner describes the dismantling of the apartheid regime in South Africa as “an extraordinary accomplishment, and one that took place with little bloodshed.”23However, because of the largely economic external pressure brought to bear on the government of South Africa at the time, Kras- ner concludes that this accomplishment violated South Africa’s Westphalian sovereignty. Because Krasner is a realist, he is not committed to a moral con- demnation of these violations. Nonrealist theorists, however, who defend a rule of nonintervention on moral grounds, should be concerned about ruling out these potentially morally beneficial forms of cross-border interventions along with more obviously problematic ones. More generally, accounts of intervention should distinguish among types of intervention, and among the moral reasons to support or oppose different sorts of intervention, rather than assuming that the reasons that count against military and other obviously problematic interventions must support a rule of nonintervention in general.
For such reasons, political and legal theorists and philosophers have increas- ingly argued that an accurate understanding of the current international system requires rethinking state sovereignty as traditionally understood. Louis Henkin has suggested rethinking sovereignty by “decomposing” it into its constitutive functional parts and then assessing whether those parts are useful in under- standing contemporary states and the states’ system.
Sovereignty, a conception deriving from the relations between a prince and his/her subjects, is not a necessary or appropriate external attribute for the abstraction we call a state. Nor is it the appropriate term or concept to define the relation between that abstraction and its counterpart abstractions, other states. For international relations, surely for international law, it is a term largely unnecessary and better avoided.24
23Krasner (1999),125.
24Louis Henkin,International Law: Politics and Values(Dordrecht: Martinus Nijhoff Publishers, 1995),9–10.
48 Kristen Hessler John Jackson takes this line of argument further, arguing that we should replace the traditional concept of sovereignty with what he calls “sovereignty- modern,” which attempts “to disaggregate and to analyze: break down the complex array of ‘sovereignty’ concepts and examine particular aspects in detail and with precision to understand what is actually at play.”25This disaggregation does not necessarily require dismantling and reallocating the actual rights or prerogatives that sovereign states currently claim. What it does imply is the need to examine more specifically the components of traditional sovereignty and to reinvestigate the rationale behind them. The alternative – to continue to use sovereignty concepts without subjecting them to such analysis – threatens to obscure important dimensions of the international system and to skew our moral analysis of international norms.