International law -- and the governments that bring it into
being -- are the process of redefining the
definition of sovereignty
Delegations pose for a family photo during the "Friends of Libya" conference at the Elysee Palace in Paris. Starting third from left, front row, are Mustafa Abdel Jalil and Mahmoud Jibril, respectively the chairman and head of Libya's rebel National Transitional Council / Reuters
Where to start? My post a week ago on Libya, the intervention there, and the changing nature of sovereignty generated a torrent of discussion, including 5000 words from Dan Trombly alone, which is half way to a full-fledged journal article; Abe Medoff; my Atlantic co-correspondent Joshua Foust (that sounds like we are anchoring a news broadcast together); and Zack Beauchamp writing for The Dish. That's terrific: as my editors keep telling me, it's just the kind of debate The Atlantic likes to foster. And it is absolutely what needs to happen if we are to define and push out the foreign policy frontier. But given that I am also a mother with one son starting high school and another going into 7th grade next week and a professor with a new course to prepare for 75 incoming Woodrow Wilson School graduate students, this response is going to be rather shorter than the writings that triggered it.
Three different (albeit inter-related) debates are actually going on here: one about the changing nature of sovereignty; one about whether the UN authorization of force in Libya was good, bad, and/or a precedent for anything; and one about what the U.S. and other nations should or shouldn't do in the broader Middle East, most notably Syria, Yemen, and Bahrain. I'm going to focus mostly on the sovereignty debate, with some discussion of how it relates to my views on Libya. For any readers who may have missed it, I wrote a "for all you skeptics out there, look at Tripoli now" op-ed last week.
So ... sovereignty. Shelves and shelves of books have been written on sovereignty; I've written a number of lengthy and heavily footnoted articles myself, most recently in the Stanford Journal of International Law. It may also be worth noting that I made my academic name by defending states as the primary actors in the international system against proponents of what was known as the "new medievalism" back in the 1990s (when of course most of my Twitter interlocutors were barely born). But let's start with what I did NOT say about sovereignty. Contra to Joshua Foust's claim, I never said "sovereignty is irrelevant to the relationship of a society to its government," nor indeed did I say that "both governments and societies [are] 'subjects' of international law." I said that international law has come to recognize that "both governments and their citizens have rights as subjects of international law and have agency as actors in international politics," which is a very different thing. Citizens are still represented in the international system primarily by their governments, exactly as Foust argues. And governments are still the only bearers or holders of sovereignty under international law. Becoming a "sovereign nation" is still your passport to being a formally recognized player under law in the international system (think South Sudan's and Palestine's quests for statehood).
But, and it's a big but, now that individuals, who make up societies, also have rights under international law, governments can no longer exercise their sovereignty domestically without constraint. In plain English, they can no longer massacre or exterminate large swaths of their own populations without consequences under international law. This is where the writer Dan Trombly comes in. He seems to think that good international lawyer that I am, I remember my Grotius but have forgotten my Hobbes. "Slaughter insists that the origin of sovereignty was to protect a people from external threats," he writes, when in fact, "The origin of the sovereign is to protect people from external threats and each other."
Here both Trombly and Foust again elide a couple of key words in my original argument. I never wrote that the origin of sovereignty was to protect weaker states from stronger states, but rather that such protection was the most compelling reason for "the doctrine of non-intervention." The sovereign monopoly on the use of force within a state is of course the sine qua non of domestic security, as is the sovereign's control of the state's borders. That's why we worry so much about fragile states, understanding that they are often as much of a threat to international peace and security as aggressive strong states. We need strong sovereign states to stop citizen-on-citizen violence (whether from drug cartels or insurgent groups) and prevent it from spreading across borders just as much today as we did in 17th or 18th century Europe. But the experience of the 20th century taught us that we also have a problem when the sovereign uses its monopoly on force to exterminate large numbers of its own citizens for political, ideological, ethnic, or religious reasons. Sovereign states that do this turn out not to be such good neighbors, creating massive refugee flows and often fomenting regional instability. Worse still, whatever personal or political pathology leads them to think it is fine to commit genocide, crimes against humanity, or ethnic cleansing at home tends to spill over into the international arena. Human rights law came into being not simply because of the moral horror of the Holocaust but also because the world's nations realized that it would have been easier (although never easy) to stop the Nazis after Kristallnacht than waiting until the invasion of Poland. In the 21st century, as Zack Beauchamp rightly emphasizes from my original post, as many or more international security problems will arise within states as between them.
So it is international law itself -- or rather the governments that bring it into being -- that is in the process of redefining the international definition of sovereignty (e.g. the conditions on which you can be a player in the international system) to include a responsibility to protect (R2P) their citizens. Trombly argues that this conception of sovereignty "essentially strips its value," because the whole point of a sovereign is to protect individuals from each other, in return for which it can and must demand absolute obedience. In the R2P world, by contrast, the sovereign "protects and serves." Strips its value? Really? I may be an international lawyer, but I'm also a daughter of Charlottesville, Virginia, home to Monticello and Mr. Jefferson's university. Last I checked, "protects and serves" was his definition of domestic sovereignty. The Declaration of Independence, after all, argues that all men have inalienable rights and that governments exist "to secure these rights ... deriving their just powers from the consent of the governed." "Protects and serves" is how all liberal democratic governments define their relations with their citizens; and I would wager the majority of the world's autocracies at this point as well. Certainly the Chinese government, for instance, thinks that it exists to serve its citizens, even if we might often disagree about how it does so.
In short, having the definition of sovereignty under international law finally take a step toward the responsibility of all governments under universal human rights law and their own constitutions to refrain from committing gross and systematic crimes against their own citizens is hardly a revolutionary step. The crucial point here is that to understand the R2P conception of sovereignty, you have to walk and chew gum at the same time. I'm not being flip, really. It's just that you have to understand sovereignty as at once a government's control of a defined territory and population and as a particular relationship between a government and its citizens. International law still upholds and safeguards a a government's power and control over its citizens, including its right to invoke states of emergency and use force to maintain domestic order. But it also now protects the citizens of a particular state when their government fails grossly in its obligations toward them.
But what does "fail grossly" mean? That is the critical question that has Foust, Twombly, Medoff, and many others so upset: they are convinced that R2P will make it easier for powerful states to invade weaker states on the pretense of humanitarian purposes. They rightly point out that the Security Council will not be authorizing armed action in Tibet or Chechnya any time soon. But their own arguments acknowledge just how hard any authorized international use of force is to secure, because in the same breath they point out the inconsistency of why the international community acted militarily in Libya and not, thus far, in Syria, when we all know that the answer is that the politics regarding Syria are much more complicated, the votes aren't there, and the use of force could be severely counter-productive to the very people the Syrian government and the international community has a responsibility to protect.
The Outcome Document of the 2005 World Summit, approved by all UN members, says that the Security Council can authorize the use of force to protect a population on a case by case basis (and subject to all other provisions of the UN Charter) "should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity." That's a high bar; the complicated politics of the Security Council raise it even higher. But let me call in reinforcements. The best answer to the overall question of when R2P should and will be invoked is Stewart Patrick's piece this week on the Foreign Affairs website as well as the Fred Kaplan piece that I cited in my last post, which reviews a new book by Rory Stewart and Gerald Knaus called Can Intervention Work? And see also the Obama administration's new Presidential Study Directive on Mass Atrocities which I hope to write about more in another post. It also explains why national and international action to prevent mass atrocities is in our security as well as our moral interest.
A final note. For those readers who thought I was trying to deny that the action in Libya was an armed intervention to avoid triggering the War Powers Resolution or otherwise to deny the military nature and impact of NATO/coalition action, I wasn't. Nor was I proposing a new politically correct R2P vocabulary; we all use the term "intervention" reflexively, and are not likely to stop any time soon. My point was to get us to see how "intervention" assumes that sovereignty is a closed sphere, when in fact it is an increasingly, and legitimately, permeable one. On the anniversary of 9/11, we know all too well how state sovereignty has been permeated by global terrorist and criminal networks. But let us also recognize the ways in which we are making it permeable to strengthen the very reasons human beings entered the social contract in the first place: to create the conditions in which we could come together and flourish as members of peaceful and prosperous societies. To that end, governments must indeed protect and serve.
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