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The State of Sovereignty

J. Dana Stuster
Sunday, April 30, 2017, 10:00 AM

In these polarized times, it came as a surprise to me that the authors of three of the most interesting books on international relations of the past year agree on at least one thing. Each argues that the global order is entering a crisis that calls into question the concept of state sovereignty, a foundational principle of the international system as it has existed for nearly four centuries.

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In these polarized times, it came as a surprise to me that the authors of three of the most interesting books on international relations of the past year agree on at least one thing. Each argues that the global order is entering a crisis that calls into question the concept of state sovereignty, a foundational principle of the international system as it has existed for nearly four centuries. In the past half-century—as globalization has interwoven the international community more densely and closely than ever, multilateral institutions have proliferated, new doctrines on human rights and counterterrorism have gained credence, and transnational threats have emerged—the definition of sovereignty has come unmoored from its traditions. These diverse authors agree that this will have consequential effects on the world, but diverge over how we reached this point and what should happen next.

The books—Rosa Brooks’ How Everything Became War and the Military Became Everything, Richard Haass’ A World in Disarray, and David Kennedy’s A World of Struggle—could be shelved in the subgenre of international relations literature dedicated to predictions of imminent crisis. Though it is a rich literary tradition, posterity is often unkind to prognosticators. But Brooks, Haass, and Kennedy’s books are more than just clarion calls: Brooks’ book is a rollicking reflection on her career that takes delightful detours through cultural anthropology, Haass’ is a cogent and approachable summary of the U.S. role in the world order, and Kennedy’s is a powerful and eloquent expression of constructivism—the field of thought that holds that the principles and institutions that shape international relations are social constructs—that should challenge policymakers in Washington to be more self-aware.

To their credit, all three authors avoid one of the worst clichés of the crisis literature form: None of them references W.B. Yeats’ hackneyed “The Second Coming.” (This is a rare achievement. In her review of Haass’ book, the New York Times’ Michiko Kakutani notes that the poem was referenced more last year than in any year in the last three decades. G. John Ikenberry, writing in Foreign Affairs, appears to be the most recent offender.)

While the books can feel hyperbolic at times, each makes a compelling case. And the common thread that runs through their arguments is all the more persuasive given the diversity of thought among the authors. Brooks is an ambivalent liberal interventionist who cut her teeth as a consultant for Human Rights Watch in battlefields including Kosovo and Uganda in the mid-1990s before becoming a professor of national security law and working at the Pentagon. Haass is a former director of policy planning in George W. Bush’s State Department and, as president of the Council on Foreign Relations, arguably the most prominent proponent of realist U.S. foreign policy. Kennedy is, despite his position as an endowed professor at Harvard Law School, an outlier from this mainstream of U.S. foreign policy thought; he is a constructivist who helped originate and develop “new stream” international law studies and his book is a broadside against the think tank-NGO-U.S. government revolving door of “expert rule” to which Brooks and Haass belong. The three do not make natural allies, but taken together, they offer a warning that the Trump administration is unlikely to heed.

Sovereignty in Crisis

Each author identifies to the signing of the Treaty of Westphalia in 1648 as a critical point of reference. To Haass, it is the foundation of the modern world order, establishing the basic principles of international relations as they are understood today. At the heart of this framework is the concept of sovereignty: the right of governments to manage their affairs of state within their borders without foreign interference. Sovereignty has always been an artificial concept, and states have never abided by it perfectly. The Treaty of Westphalia failed to prevent various upheavals across Europe, but it succeeded in establishing a framework that would persist through revisions after the Napoleonic Wars and World War I.

Brooks places Westphalia in the context of the development of the law of armed conflict and, later, human rights law. “Even after this symbolic starting point,” she writes, “it took centuries of conquest and many more wars before anything truly resembling today’s state system.” While Haass tracks the integration of relations between states, notably the consultative structure of the Concert of Europe and economic ties that served as a check against aggression, Brooks follows the development of legal traditions for conflict, from their origins in antiquity through the Lieber Code, the first Geneva Convention, and the Kellogg-Briand Pact.

Haass and Brooks’ histories intersect again at the point when the global order diverged from its Westphalian traditions. The cataclysm of World War II prompted the development of new innovations in law and multilateral institutions that have undermined that fundamental concept of sovereignty. The reasons for this were well-intentioned: The founders of the United Nations sincerely wanted to prevent repeating the atrocities of the war they had just witnessed. But by setting down principles barring certain conduct by governments against their own citizens, they opened the door to all manner of justifications for foreign intervention. This has been exacerbated by globalization and the accompanying devolution of power that has allowed small states, corporations, terrorist groups, humanitarian organizations, and individuals to influence events across borders. Both Brooks and Haass argue that now, seventy years later, sovereignty is eroding to its breaking point.

Kennedy, like Brooks, focuses on legal developments, but he approaches this history differently as a constructivist. “[O]rigin myths are as important for world building as they are for religions, families, or cultures,” he writes. Nonetheless, he reaches a similar conclusion: “This proliferation of legally framed activity has made war and sovereign power into legal institutions even as the experience of legal pluralism and fluidity has unhinged the idea of a law which, out there, somehow distinguishes.” The basic tenets of the Westphalian order “have become far too spongy to permit clear resolution—or became [sic] spongy enough to undergird the experience of self-confident outrage by parties on all sides of a conflict.”

This could have drastic consequences—a possibility that Kennedy welcomes but which Brooks and Haas approach with trepidation. Brooks reminds her readers that even the idea of the nation-state “is a transient and contingent form of social organization” and that “there is little that is natural or inevitable about this system.” Haass is even more bleak in his assessment, and acknowledges his view is “downbeat, even depressing.” He likens the situation to Yom Kippur: the Book of Life is sealed, but the severity of the world’s sentence can be lessened through what is done next.

Agreeing on the Crisis at Hand, But Not on How We Got Here

What can be done next? Brooks, Haass, and Kennedy may have identified the same crisis, but each attributes it to a different cause. And since they cannot agree on what caused the situation, it’s no surprise that they do not agree on how to address it.

Haass offers the mildest critique of the current situation, which he is careful to characterize as one of mere “disarray.” He characterizes order, both domestic and global, as a constant tension between society and anarchy; since 1648, sovereignty and deepening economic independence has held anarchy in check in international relations—with the exception of the Napoleonic Wars and two World Wars, catastrophic breaks that occurred when these foundations of stability faltered. Haass argues that, despite the intent of the framers of post-World War II international institutions to strengthen the checks to interstate violence, these institutions actually produced new arenas for competition among states and eroded some of the critical underpinnings of the previous global order. “The result was something of a departure from the Westphalian notion of order, because...what was agreed to was an approach to order that recognized that what goes on within a country’s borders matters not just to its own citizens but to others,” he writes.

The entropic effects of this shift were mostly curtailed by the “managed competition” of the Cold War, but since the collapse of the Soviet Union, the logic of the ideas put forward in the 1940s is creating new international norms that undermine the very concept of sovereignty.

Haass reserves particular concern for the development of the Responsibility to Protect doctrine, calling it a “major turn” in the way states relate to one another, though he notes that it has not been adopted as an international norm in practice. The growing emphasis on states’ domestic affairs—governance and human rights concerns, in particular—has hindered effective foreign policy, while multilateral institutions designed to regulate international affairs have failed in their promise to manage responses to crises. The United Nations struggles to address too many issues and wrangle too many countries in pursuit of an illusory goal of global consensus, he argues; smaller or more issue-specific coalitions might allow some limited progress, but this can be stymied by bandwagoning. Haass discusses the G-8 with nostalgia, in contrast to the unwieldy process of coordinating policy among the G-20. “[The] trend toward disorder has been a function of structural changes in the international system—above all, the diffusion of capacity into more hands than ever before—exacerbated at critical times by the action (and inaction) of the United States and other powers,” he writes. “The result is a world not just of more capacity in more hands but also of more decision makers and independent actors. Consequently, a host of global and regional challenges have emerged that are proving to be far more than the major powers can contend with.”

Brooks is more charitable toward post-World War II international institutions. “While the U.N. Charter’s collective security system certainly did not end all wars,” she writes, “it did succeed in greatly reducing the number of conflicts between states, and overall, deaths due to armed conflict have declined.” But like Haass, Brooks pinpoints the establishment of the post-World War II order—particularly the “notion that individual humans were entitled to be treated by their states with respect and concern” and “that they held ‘rights’ not at the pleasure of their governments but simply by virtue of their humanity”—as the point when sovereignty started to unravel. Brooks also notes that this accelerated after the end of the Cold War and with the development of the Responsibility to Protect doctrine. She writes that the United States was ambivalent about intervening in Kosovo for fear of establishing a precedent for humanitarian intervention, but proceeded anyway, laying the groundwork for the International Commission on Intervention and State Sovereignty’s November 2001 report establishing the concept of Responsibility to Protect.

In its report, ICISS did something novel and in many ways extraordinarily appealing: it sought to circumvent the tension between the moral pull of human rights and the moral pull of sovereignty by simply redefining the terms of the discussion. In particular, ICISS sought to redefine sovereignty itself, arguing that sovereignty is not something that states possess simply by virtue of being states, but rather a matter of responsibilities as much as rights—and the most fundamental responsibility of a sovereign state is the protection of its own people.

With this revision, Responsibility to Protect gained credence, though not unreserved acceptance, in Washington and at the United Nations, and facilitated the justifications for the 2011 U.N.-backed interventions in Libya and Cote d’Ivoire.

Brooks argues that, like Responsibility to Protect, the modification of principles on states’ use of force abroad since 2001 has also eroded the concept of sovereignty. While self-defense has always been a legitimate cause for war, this was premised on the actions of states, not terrorist organizations. “The events of 9/11 showed that a state’s failure to control its ‘internal’ affairs’ could lead to the ‘export’ of harm to the population of other states,” Brooks writes. “Inevitably, the blurring of the lines between internal and external and between crime and war undermined the logic of sovereign nonintervention principles.” In 2003, the United States justified its invasion of Iraq on the basis of preemptive self-defense. But what could have more far-reaching consequences is the U.S. policy of conducting targeted strikes outside of active battlefields in countries with which the United States is not at war regardless of the consent of the country’s government. Brooks explicitly ties this reasoning to Responsibility to Protect:

[T]he underlying logic used appears structurally identical to that underlying the ‘responsibility to protect’ concept: sovereignty implies responsibilities as well as rights; states must refrain from internal acts that threaten the citizens or basic security of other states, and must prevent nonstate entities from engaging in such acts inside their borders. If a state fails to fulfill this responsibility...other states are entitled to use force within its borders if doing so is necessary to protect themselves or uphold global security.

Despite the distrust between the largely distinct human rights community that advocates the Responsibility to Protect and the national security community that defends U.S. targeted killing policy, Brooks writes, “the logic of each sovereignty-limiting theory is virtually identical, and each theory reinforces and legitimizes the other.”

Kennedy takes a different approach. The problem, in his estimation, is not a series of nuanced shifts in the definition of sovereignty; it is the entire systemic process dedicated to quibbling over exactly these sorts of issues. The post-World War II system has created an order premised on laws and principles maintained by a class of self-appointed experts, he argues. These experts are fixated on the legalization of political debate, and with it, on definitional minutiae that curtail the bounds of acceptable discourse. Ironically, this narrowing of debate has made international agreement more difficult; for example, while countries agree to laws about the use of force, the distinctions about categories to which those laws apply (for example, terrorism versus crime, combatants versus civilians) have become more nebulous. And if big issues and big reforms are off the table and experts are confined to a constant struggle over basic concepts, the current global order can perpetuate itself—including its worst failures. In Kennedy’s view, “expert ideas and professional practices of assertion and argument construct and reproduce a world of inequality and injustice.”

The architecture of the world order as it exists today is a failure, according to Kennedy; it only attempts to manage problems and conflicts while solving none. It promises some distant day when its various components mature into a more just order, but its institutions are incapable of reform so long as they are governed by the same principles that formed such an inequitable distribution of power in the first place. In Kennedy’s view, stubborn adherence to the Westphalian tradition of sovereignty obstructs any chance of radical reform.

After a century of efforts to transcend sovereignty, people who dream about global governance imagine something very like sovereignty: a general being hovering over the society, oriented to problem solving in the general interest, responsible for the management of the whole. What people know as sovereignty shapes what they imagine as governance.

Kennedy’s book, which reads at times as a jeremiad against what he terms “expert rule,” is a challenging read here in Washington, D.C. This idea of “expert rule” has gone by any number of names in the past several years: the “establishment,” the “blob,” or as some Trumpists have dubbed it, the “deep state” or the “Davoisie oligarchy”; it is the class to which Brooks belongs as a think tanker and former administration official, and which Haass embodies as the president of CFR. At other times, Kennedy affects an air of condescension toward these experts. “They come into their roles... precisely by routinizing themselves into a professional vocabulary and practice that makes it difficult for them to experience freedom of maneuver for either rational persuasion or irrational preference,” he writes. “They have reasons embedded in their roles and situation for what they do.” What Kennedy’s critique comes back to time and time again, though, is that the people responsible for governing and shaping the global order, whether by training or choice, think too small. They focus on minute shifts and minor reforms instead of revolutionary rethinkings of governance; their policies “make every year an opportunity for modest reform and no year likely to be our 1648.”

What Are We Supposed to Do?

Kennedy’s criticism is too severe, in my opinion, but he is correct that the ability of policymakers to make dramatic changes to the systems in which they work is extremely limited. I thought of that as I read the conclusion of Haass’ book, which is practical to a fault in its proposals. Indeed, what Haass suggests is exactly what Kennedy derides: to mitigate and manage the problems of the global order, not solve them. Reforming institutions is out of the question; instead, Haass argues that the United States should focus on regional or issue-specific coalitions in which it is easier to reach a consensus, or informal bilateral consultations to signal clear intentions.

Haass’ big innovation is a concept he describes as “sovereign obligation,” which would “maintain or even strengthen what is best about the sovereign order, including broad acceptance of a meaningful zone of autonomy for governments as well as a robust respect for borders and for the principle that they are not to be modified through the use of military force or other forms of coercion,” but would recognize that states have responsibilities to their peers. This would include preventing terrorists from attacking abroad from within one’s own borders and responsible stewardship of global commons from the atmosphere to the internet. States that do not meet their obligations would face penalties, including naming and shaming, economic sanctions, and even military action. “Sovereign obligation,” Haass writes, “is realism updated and adapted to meet the exigencies of a global era.”

Brooks’ proposed solution is more challenging and less wedded to the classical concept of sovereignty than Haass’. Domestically, she advocates stronger oversight and transparency with regards to targeted killing to ensure the United States is setting a high standard for how other states may conduct drone strikes in the future, which seems achievable enough. Internationally, Brooks’ proposals are vaguer but favor stronger international institutions that can more effectively enforce human rights, govern the use of force, and address transnational issues. “[We] need categories, rules, and institutions that prevent powerful states from committing abuses with impunity behind the cloak of state sovereignty, but that also prevent the instability that would result from expanding a unilateral right to use force,” she writes. “Bluntly: the United States will need to accept some further loss of sovereignty in exchange for more just and effective mechanisms for solving collective global problems.”

Kennedy is the most esoteric in his goals. At a minimum, he would like to broaden the bounds of acceptable debate, but he acknowledges that the “opportunities for meaningful struggle are hard to identify” because traditional models of governance and politics are so well established. At his most ambitious, Kennedy envisions localized and adaptable systems of governance removed from the concept of sovereignty.

Imagine politics delinked from polity, spreading horizontally to diverse sites of potential contestation. Imagine an economics whose destiny was local, linked to the well-being of communities. Against this background, the routine boundary work of the governance professions might be quite different: aiming to reconnect the political and the economic while fragmenting the space of economic activity and multiplying the modes through which politics is undertaken.

Kennedy’s proposal lives up to his promise of unorthodoxy to the point of being wildly unrealistic. It’s the sort of utopian rhetoric that has governed counterculture settlements from the Paris Commune to Occupy Wall Street. State institutions are too strong in the developed world to allow the emergence of alternative polities like those Kennedy envisions.

Whereas Haass sees the current political moment as one to be managed and muddled through, Brooks and Kennedy see it as charged with transformative potential. Brooks’ ambition is at least partly motivated by what she sees as the possibility for the cataclysmic failure of the global order. “[T]he global and national social and political order we inhabit today is no more immune from catastrophe than the pre-World War II order. And perhaps it will take a another catastrophe to jolt us into designing new rules and institutions better suited to twenty-first century challenges,” she warns. Kennedy, on the other hand, sees the current moment not necessarily as a potential disaster, but a potential opportunity. “The sensibility I have in mind requires a sense for the urgency and drama of the times: a sense that this is, indeed, 1648. A time when things are being remade in ways it is difficult to understand at first,” he writes. “Or a time like 1918, when people just know things have to be profoundly remade and both politics and economics are open for deep revisions. These were not ‘end times’ but moments of rebirth.”

Is There a Bigger Picture than Sovereignty?

After reading Brooks, Haass, and Kennedy’s books, it is hard to resist the feeling that we are living through a transformative moment in history. Yeats felt the same when he wrote “The Second Coming” in 1919. But there is a fascinating irony to the crisis literature’s fixation on the poem’s famous imagery “mere anarchy … loosed upon the world.” History, Yeats believed, was a daisy chain of 2,000-year eras, each defined by a catalyzing event, and he thought he was witnessing the end of one historical cycle and the beginning of the next. He identified the catalyzing event of his time—what Yeats elsewhere describes as “a terrible beauty” being born— as the Irish war of independence.

The Easter Rising and its aftermath seem minor relative to the momentous wars of the early twentieth century, but lived history always feels significant. It’s just that we’re terrible at understanding the significance of an era when we are in the midst of it. Even our recent past is already being reassessed. The 1990s were supposed to be the “end of history”; instead the decade was a blip between the end of the Cold War and the beginning of the War on Terror that will likely be most remembered for the advent of the public internet.

With this in mind, it is far too likely that we are misdiagnosing the determining factors of our time once again. For all the unease about sovereignty’s palsied state, the places and instances in which the principle has been violated are a catalog of, as Brooks notes, failed and failing states. For all the talk of conflict and disorder, violence is at historic lows. Brooks points to the decline in interstate violence since World War II, which Steven Pinker has argued is at a centuries-long ebb. The scale and frequency of genocide have also dropped, and while this is no consolation for the victims of outlier conflicts like the Syrian civil war, the rate of deaths in conflict have as well. Recent decades have also seen unprecedented reductions in global poverty and morbidity. Though President Obama was raked over the coals by conservative media for observing that “we are fortunate to be living in the most peaceful, most prosperous, most progressive era in human history,” he’s right: This is what the world looks like when the liberal international order is (mostly) functioning.

Haass’ critique of Responsibility to Protect seems dated today. As Brooks notes, 2011 was the “high-water point for the Responsibility to Protect norm.” The overthrow of the Gaddafi regime left Vladimir Putin feeling betrayed, and the chaos that has followed has made the international community reticent to support another humanitarian action after the human toll in Libya. Responsibility to Protect’s threat to sovereignty appears to have been stayed for now, and it is difficult to differentiate the concept of “sovereign obligation” from U.S. policy during the second term of the Obama administration.

Sovereignty has also been remarkably resilient to the proliferation of drones and the normative hazards of U.S. targeted killing policy that Brooks identifies. In the 15 years since the first U.S. drone strike, armed drones have been purchased by militaries around the world, but their use has remained tethered to active battlefields and areas where governments are acting with the consent of the targeted state. Israel has carried out drone strikes against militants in Sinai, but has done so with the support of Cairo. Jordan has used drones to strike the Islamic State in the active battlefield near its border. But no state has followed the United States’ lead of conducting targeted drone strikes away from active battlefields without the consent of the state in question. Notably, when China considered using an armed drone to kill a drug smuggler in Myanmar, it rejected the plan in favor of a joint police action in coordination with Thailand, Laos, and Myanmar. This could change, especially if other countries develop drones that can project force farther than the technology now allows, but international norms about sovereignty appear remarkably resilient on this front as well.

Again, the issue of failing states seems more salient than changes in the concept of sovereignty. Current U.S. policy treats state weakness—that a foreign government is “unwilling or unable” to address the threat emanating from within its borders—as a prerequisite under international law for the use of force against a non-state actor within the second state’s territory without the consent of the foreign government in question. As such, all U.S. counterterrorism strikes carried out without the consent of a central government have all taken place in countries where the central government does not hold a monopoly of force within its borders. The same could be said for other actions that have eroded the concept of sovereignty: the U.S. intervention in Bosnia, the Russian intervention in Ukraine, and NATO’s current campaign against the Islamic State in Syria. Reaffirming the inviolability of sovereignty may allow the United States to save face as it deals with unsavory regimes—what Haass describes as a return to a Reagan-era realism in which alignment with U.S. interests takes precedence over all domestic concerns—but that will be insufficient if even cruel juntas cannot exercise control of undergoverned territory in countries like Yemen, Somalia, Libya, Syria, or (as with China’s considered drone strike) Myanmar.

Even with stable but rights-abusing regimes in power, undergoverned spaces are likely to grow. This will be exacerbated by increased competition for scarce resources as climate change and demographic shifts strain water and food sources; there is a compelling argument that this already contributed to the conditions for the outbreak of the Syrian civil war. Even where conflict does not occur, people will be displaced by climate change. Rising sea levels are already creating “climate refugees” emigrating from the Marshall Islands. Indeed, the flows of refugees and migrants pushed out of their homes by climate change and conflict could pose as great a challenge to sovereignty as Responsibility to Protect and U.S. counterterrorism policy. For all its merits, saving sovereignty as it has been classically understood will not turn back the clock on the diffusion of power that has weakened central governments over the past half-century, it will not end the civil wars that have expanded political vacuums, and it will not halt the creeping effects of climate change.

We may be in a transformative era, but when history books are written about this moment with the benefit of hindsight, my suspicion is that shifts in the understanding of sovereignty will be one paragraph in a much larger discussion of the tension between growing state power and the democratization of influence and violence that has been facilitated by globalization and the internet. China and India’s economic development has raised the average standard of living in the world on an immense scale and made these countries increasingly important players in the global order. Sovereignty is an inextricable part of a larger historical shift that includes the role emerging powers will play, physical displacement caused by climate change, and professional displacement generated by unprecedentedly rapid shifts in commerce and industrialization. These trends are only likely to accelerate. We should not ignore sovereignty—as Brooks, Haass, and Kennedy note, the stakes are too high for that—but restoring it or reforming it will not be a panacea for the global order. It is just one of the dogmas that has proved inadequate to the stormy present.

J. Dana Stuster is the deputy foreign policy editor for Lawfare and an instructor at the Naval War College. He holds a Ph.D. in political science from Yale University. He worked previously as a policy analyst at the National Security Network and an assistant editor at Foreign Policy magazine. All opinions expressed are his own and do not necessarily represent the Naval War College, U.S. Navy, or Department of Defense.

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