20th WCP: A Puzzle of Sovereignity

The subject of national sovereignty presents a puzzle. On the one hand, the notion of the sovereignty of the state figures importantly in our descriptions of, and our prescriptions for, global political change. (1) For example, a natural characterization of the political changes in Eastern Europe and Central Asia preceding and following the demise of the Soviet Union is that a number of national political communities have vigorously asserted, sometimes by force of arms, claims to national sovereignty. Against this is the claim that, as a result of the contemporary realities of global affairs, national sovereignty has become irrelevant, an anachronistic notion. According to this view, there is a variety of factors which, especially in the past several decades, have drained states of their sovereignty by depriving them of the ability to protect themselves and their citizens from the negative effects of the actions of other states or outside groups. The most important of these factors are the accelerating pace of global economic integration and the increasingly wide-spread and detrimental human impact on the environment.

While states have attempted to respond to this threat to their sovereignty by entering into mutual agreements in an attempt to mitigate or control the negative pressures from outside of their borders, the agreements themselves seem to represent a loss of sovereignty. Because they involve the states' binding themselves in various ways, and hence partially losing control of their own future actions, international agreements appear to exchange one form of constraint for another. This exchange is often in the states' best interests overall, but sovereignty seems to be lost in either case. There seems to be no room left for state sovereignty in the contemporary world.

The puzzle thus presented, which it is the purpose of this paper to explore, is that the notion of national sovereignty seems continuingly important and at the same time increasingly irrelevant to an understanding of world affairs. From one perspective, sovereignty seems an enduring force in international relations, while from another perspective its force seems spent. The idea I want to explore is that it is possible to regard contemporary states as sovereign without denying facts of the sort that naturally lead one to view sovereignty as an irrelevant notion. I begin with some general discussion of the nature of sovereignty before considering the questions whether and in what sense state sovereignty exists.

Following John Austin's classic definition, a state is sovereign when it has a body within it which effectively commands the rest of the society and which is not effectively commanded by any outside force. (2) Thus, sovereignty has both a positive and a negative aspect: the sovereign is obeyed by others and does not obey others. The sovereign commands and is uncommanded. This represents a fundamental divide in the theory of sovereignty: there is sovereignty in the state and sovereignty of the state. Sovereignty concerns a certain type of relation within the state, namely, supremacy, as well as a certain type of relation between the state and outside parties, namely, independence. These two aspects, supremacy and independence, are often referred to, respectively, as internal sovereignty and external sovereignty. The concern of this paper is external sovereignty. But, since much of the historical discussion of sovereignty has focused on internal sovereignty, it will be helpful to begin by considering briefly the problems of internal sovereignty raised in this discussion.

The traditional problem in political theory out of which the notion of sovereignty arose, the problem central for Hobbes, is how social order is to be maintained in the face of the tendency to disorder, a tendency toward a "state of nature." The problem was thought to be soluble only if there were in society a single, unchallenged authority. For there to be a state there must be a group, namely, the sovereign, with unlimited power. This is the traditional notion of sovereignty. Because social order was thought not to be possible in the absence of such an authority, sovereignty in this sense was seen as a necessary condition for statehood.

Given the disbursement of power within contemporary societies, the traditional notion of sovereignty seems unable to fit political reality. Some have recommended that we drop the notion altogether. But let us consider how defenders of the traditional notion have responded to the arguments for abandoning it, for this may help us with the puzzle of external sovereignty. My hypothesis is that the problem with internal sovereignty and the problem with external sovereignty have the same source, which is, speaking generally, the increasing complexity of social life. Historically, this growing complexity first became evident in the context of domestic political arrangements, leading to the problems with the notion of internal sovereignty, but has more recently become evident in international life as well, bringing to the fore problems with the notion of external sovereignty.

The problem with the traditional notion of internal sovereignty is that it requires that the sovereign be unlimited, while in actual governments the power of those in power often seems all too limited. One possible solution to the problem arises from the observation that "sovereignty" is an ambiguous term. For example, S. I. Benn and R. S. Peters note that "sovereignty" may mean either supreme legal authority or supreme ability to induce others' compliance through bringing pressure to bear. (3) To avoid the ambiguity, one can draw a distinction between de jure or legal sovereignty and the second de facto or coercive sovereignty. (4) Although legal and coercive sovereignty often lie with the same group in society, this need not be the case. In situations where the military is not under effective civilian control, for example, legal and coercive sovereignty may lie with different bodies. The general point is that there may be different types of sovereignty, located in different groups in society. This strategy of distinctions can be carried further. Making use of some insights from discussions by Harold Laski and A. V. Dicey, we may distinguish two other types of sovereignty, specifically, two types of popular sovereignty. Legal and coercive sovereignty lie with officials, but lying with the people is a another form of de jure sovereignty, namely, electoral sovereignty, as well as another form of de facto sovereignty, which I will call noncompliance sovereignty. The first is the power of a democratic electorate to make and unmake governments and the second is the power of the people to deprive officials of their power by refusing to comply with their directives or, ultimately, to eliminate their power through revolution.

Internal sovereignty comes, then, in types, distinguished by the form of power each involves. Speaking generally, a type of internal sovereignty is the holding of a form of power by a group in an unlimited way, such that that group has supremacy in regard to that form of power. To say of the group that it holds a form of power in an unlimited way is to say that no other group in the society outside of that group can limit it in the exercise of that form of power, with the "can" being understood in either a de jure or a de facto sense, depending on the type of internal sovereignty in question. The idea is to regard political power not as a univocal notion, but as existing in a variety of forms, so that a certain group in society might hold unlimited power, hence sovereignty, in terms of one form of power, even though that group is subject to the supremacy of another group in regard to another form of power. For example, officials might hold unlimited legal power, even though they serve at the whim of the electorate and there are some laws compliance with which they could not achieve. Sovereignty may be unlimited precisely because it can be limited as to type. Thus, the disbursement of power in contemporary societies is not necessarily inconsistent with the existence of internal sovereignty.

II.

As internal sovereignty is a matter of supremacy, external sovereignty is a matter of independence. External sovereignty is independence, or freedom from interference, not only in relation to any would-be higher, that is, international or supranational, authority, but also in relation to other states. As independence, external sovereignty is the freedom of self-governance. Internal sovereignty is freedom-to, while external sovereignty is freedom-from. As internal sovereignty implies unlimited freedom to interfere within, external sovereignty implies unlimited freedom from interference from without. A political community cannot be partially sovereign, but it can be partially independent or self-governing. While both external and internal sovereignty are all-or-nothing, each is characterized in terms of a notion which is a matter of degree, independence in the one case and power in the other. The objection to the notion of sovereignty is the same in each case. As the contemporary world does not present us with examples of states with ruling groups having unlimited power, neither does it present us with examples of states with complete independence. How is external sovereignty possible given the facts of international life? The puzzle is that one seems forced either to deny that nations are externally sovereign or to reject what seem to be obviously true claims about international life.

In order, finally, to address the puzzle, we need to recognize that the solution comes through making distinctions similar to those discussed above regarding internal sovereignty. We may say that there are different types of external sovereignty corresponding to different forms of independence. Most importantly, there is freedom from outside legal interference, that is, legal independence or external legal sovereignty. So, a state which has complete legal independence may be said to be externally sovereign, even if its independence is in other respects compromised. This allows the argument that the various sorts of outside interference, which seem to compromise the external sovereignty of states, do not compromise its external legal sovereignty, as long as they do not place the state under any form of legal subordination. States which lack full independence in other respects may possess full legal independence, and hence be externally sovereign. It is true that governmental decisions, that is, the legal actions governments take, are frequently strongly influenced by actions of outside interference, and it is often the purpose of such actions to achieve such influence. But it is still the state which decides whether and how to respond.

This shows how states can be externally sovereign despite the state's being influenced by outside pressures in its choice of policies. The factors said at the beginning to undermine external sovereignty, namely, economic interdependence and global environmental impact, often involve strong outside pressures. But the influence of such pressure on governmental policy is no more a compromise of the state's external legal independence than the influence on internal governmental policy of the populace, that is, its electoral or noncompliance sovereignty, is a compromise of the state's internal legal power.

In the contemporary world, the main source of outside interference is economic, and states can suffer grievously under outside economic forces. This is especially true of third-world states in the face of economic influences from the first world. Can a state be said to be legally sovereign, and in that sense to be the equal of all other states, when it is very much weaker economically than other states? There are, indeed, limits to the extent to which legal sovereignty can hold in the face of severe economic inequalities and the resulting severe outside economic pressures faced by the weaker states. If the pressure of outside influences is too great, freedom of legal action is lost because the state's legal activity is effectively coerced. To use a domestic analogy, this is as it is with individuals. My actions are not unfree simply because they are in response to the actions of others, but if other's actions place too much pressure on me (for example, the gunman's "your money or your life"), then I am coerced and my actions are not free.

Legal sovereignty is lost only when a state's other forms of independence diminish to the point that outside influences become coercive and so destroy their freedom of legal action. At the extreme there are puppet regimes, which do not enjoy external legal sovereignty despite the formal apparatus. Even short of this, the pressure may be sufficient to destroy legal sovereignty. But the rising level of global economic integration, which creates higher levels of outside economic interference for all states, does not yet entail that all or even most states have lost their legal sovereignty.

But, what about international law? Can the legal sovereignty of states be said to hold in the light of its existence? The contemporary growth in international law has been coincident with increasing economic integration and other developments which have robbed states of nonlegal forms of independence. The connection between these is that international law is a way for states to mitigate the effects of negative external actions, to gain some control over or to reduce the incidence or severity of actions of outside interference. It is, in part, the solution to a coordination problem. States, by agreeing to provisions of international law, choose to create certain constraints on their behavior in order to reduce, by getting other states to constrain their behavior, the negative effects of the unchosen constraints resulting from actions of outside interference, the chosen constraints being regarded as less onerous than the unchosen ones. The problem this creates for my account is that the constraints of international law are legal constraints. Such agreements apparently diminish the legal independence of states, thereby destroying their legal sovereignty.

Is the existence of international law inconsistent with the external legal sovereignty of states? Under one prominent view of international law, there is no such inconsistency. The difference between municipal and international law is that the latter is binding only because it is agreed to or recognized by the parties it binds. International law, as a form of agreement law, is not a denial of a state's legal sovereignty. Rather, being based on agreement, it is an exercise of that sovereignty. The agreements, as Stephen Toulmin notes, are treated not as "formal abridgments" of states' sovereignty, "but as voluntary restraints on their exercise of that sovereignty." (5) Indeed, as Werner Levi observes, "international courts have consistently held that the conclusion of treaties is the exercise of an attribute of sovereignty, not a limitation of it." (6)

Not only is entering into an agreement of international law an exercise of sovereignty, but so is, in general, the state's future compliance with the law to which it has agreed. The "enforcement mechanism" consists of outside pressure. Instead of facing the formal sanctions of a coercive sovereign, those in violation of international law face, at most, reprisals on the part of those states or groups who seek to "punish" the violator. (7) Thus, in creating new international law through treaty, what a state does is to create new ways in which outside groups, especially other states, may seek to apply pressure to influence the state. The state creates the potential for this increased pressure, because its agreeing to the treaty gives rise to expectations on the part of others that it will behave in certain ways in the future. Should it not behave in those ways, that is, by violating the agreement, these expectations will be thwarted, and will likely give rise to increased outside pressure, such as reprisals, in response.

But external legal sovereignty remains, because the forms of outside pressure to which the agreement gives rise are, at least up to a point, not so severe as to coerce the state. The state may choose not to comply with its agreements, though it usually does comply, because the reprisals are significant, if short of coercive. But were the threatened reprisals for noncompliance to grow sufficiently severe, compliance would become effectively coerced, so that legal independence would be compromised and external legal sovereignty lost. International law may, at some point in the future, become so extensive that external legal sovereignty would in this way disappear. National sovereignty may become an anachronistic notion, but we are not there yet.

III.

Finally, I would like to make some speculative remarks concerning our expectations for the future course of global affairs. I do not offer predictions, but rather I wish to suggest how failure to attend to the sort of distinctions discussed above could lead to faulty predications. There has recently been some pessimistic discussion, the popular press as well as the journals, about the coming state of global anarchy, and it seems to me that at least part of the reason for this pessimism may be a failure to understand the nature of national sovereignty. More specifically, the pessimism may be due to an assumption that sovereignty is, as it were, one-dimensional, whereas my discussion reveals that it is at least two-dimensional.

If external sovereignty is seen as a univocal notion, then the continuing erosion in the independence of states would tend to be viewed as occurring in a single dimension, at the far end of that dimensional scale being the unachievable goal of complete independence. The implications of this one-dimensional model are that states would not be in a position to exercise much control over the gradual erosion of the independence they have remaining. The more independence they lose, the less ability they have to stanch further loss, and, more importantly, the less they are in a position to exercise influence over how their remaining independence is lost, that is, to determine the form that loss takes. This view would support the speculations about a growing condition of global anarchy.

In contrast, the distinctions made in this paper support a two-dimensional model in terms of which to understand the independence of states. While states are indeed continuing to lose their independence, they are, by and large, retaining complete legal independence and it is independence in its other forms that is being lost. Legal independence is distinguished from other forms of independence, and thereby becomes a second dimension in the model. This second dimension allows us to comprehend the growth in the international treaty regime. Eroding state independence will likely continue to be orchestrated by the states themselves, in virtue of their retention of legal sovereignty, in such a way as to foster the growth of world order through an expanding international treaty regime. On this conception, we are perhaps entitled to be more sanguine about the prospects for future world order.