This is a paper I wrote for a class final during my MA program at the American Graduate School of Paris, in 2013.
The Evolution of the Concept of Sovereignty
The concept of ‘sovereignty’ when looked at through the lens of international relations (hereafter referred to as IR) seems to be a new phenomenon possibly tracing to the pact of Westphalia, however this misconception could not be more wrong as the concept of sovereignty has existed at least since the time of Aristotle if not before. In fact most of the concepts we take for granted are based on this ancient understanding of sovereignty, the concept is ingrained in Western, Middle Eastern and modern African (due to colonization and modern globalization) concepts such as: domestic affairs (as in the non-public, not the domestic affairs of the state), ‘head of the house’, systems of governance and many other concepts that people take for granted. The first thing to understand about sovereignty is that it has never been a concrete concept with a solid definition but rather a long train of differing ideas that have helped to shape the current concept as we know it; this fluid nature rather than being an irritation for researchers or political philosophers is a gift as the concept can be molded to the needs of each generation; this fluidity allows the needs of the globalizing world to be met through innovations in the manner of using and contemplating sovereignty.
For a more correct understanding of the evolution of sovereignty the author is going to create a synthesis of sovereignty’s nascence from Aristotle through the times of the Roman Empire, through great political philosophers such as Immanuel Kant, Thomas Hobbes, John Locke, Montesquieu and Jean-Jacques Rousseau. Then the author will explore the evolution of the concept of sovereignty during and after the Pact of Westphalia, the Montevideo convention, the creation of the UN Charter and the impact of the Kosovo intervention by the UN in 1998. After the conventions and treaties of the past the author will explore the most modern theories concerning sovereignty and the influence the theory of responsibility to protect on it’s potential future evolutions. This author, as well as some political theorists, believe that the choices the International Community (hereafter referred to as the IC) make in this decade will make a permanent impact on the future of sovereignty and it’s potential uses. To finish this author will extol on the virtues of these paths and highlight some areas of concern that must be addressed in order for this concept to retain it’s power and utility.
In ancient Greek times philosophers debated and subsequently laid the foundations for many of the concepts in use today, including sovereignty, in order that they might find the best solutions to the ordering of political and private life. One debate of interest to IR theorists is that of sovereignty, which took hundreds of years of for theorists to find a meaning and origin for. Aristotle in his book “Politics” was the first in the western world to write down his conception of sovereignty; though basic and very utilitarian minded and in his Politics Book III it consisted of “the fact that there must be a supreme power existing in the state, and that this power may be in the hands of one, or a few, or of many”. However for later theorists who prefer popular sovereignty within Chapter II, of Book III, “appears a justification of the rule of the many, fairly expressed in the statement that ‘the principle that the multitude ought to be supreme rather than the few best is capable of a satisfactory explanation, and though not free from difficulty, yet seems to contain an element of truth.’” (Merriam 2001 pg 5)
Roman law create the next leap in refining sovereignty in it’s “The will of the Prince has the force of law, since the people have transferred to him all their right and power.” (ibid pg 6) and declared the emperor “legibus solutus” (ibid pg 6). Thanks to the clarity of Roman law and their habit to have written laws modern scholars since the 12th century have been able to search the remnants of Roman laws for their intricacies and tease out new concepts by other names held within the old manuscripts. With Aristotle laying the ground work and the Romans placing a more refined version into public law we see how even in the ancient world sovereignty was fluid and capable of being used for not just theory but for domestic and inter-empire law. The basis of Roman law and conception was not re-discovered (after the collapse of the Roman Empire) until interest in Roman writings as rekindled in the 12th century by Western scholars, and ergo the next section will be addressing philosophers of European thought.
After the rediscovery of Roman and Greek writings political theorists and philosophers alike began the debate that helped shape the evolution of the concept of sovereignty, these debates are still cited when people invoke a particular understanding of sovereignty. Immanuel Kant was a student of Jean-Jacques Rousseau who was an advocate of the contract theory: that the people gave up their natural sovereignty to the state which as a holder of sovereignty was bound to do as best as possible for the people whom were within its borders. This is a theory which is expressed in the most detail in “The Leviathan” by Thomas Hobbes and it dictates that the state or sovereign head of a state (the Leviathan) was imbued with the sovereignty of the members of the state and could do as it pleased. This allowed the sovereign to be free from all impositions of limitations potentially placed upon him, as who was more sovereign than the person or people in whom all the sovereignty of all the people was placed for good or ill? While Kant followed Rousseau he made one adjustment that is to this day still a matter of debate: that one is born into a preexisting state and thereby one cannot give consent to surrender one’s natural sovereignty up to it and thereby the contract theory was good however no real or fictitious moment of agreement between the governed and the government had been had. Particularly in light of the fact that no one act of man created a state but rather it was the accumulation of generations of people in combination with tradition and new thought. So here the basic idea that sovereignty is something that one is born with, that when one is a member of a state it (your natural sovereignty) is surrendered to that state in order to be a part of that civil society, in exchange for the benefit of protection and a general well fare to exist between oneself and the rest of that society. Kant’s idea is most clearly expressed: “The ruler in the State has against the subjects clear rights and no (enforceable) duties. (Der Herrscher einer Staates hat gegen den Unterthanen lauter Rechte und keine (Zwangs-Pflichten).” (ibid pg 24)This current of thought is still used by some political theorists and philosophers and has had a massive impact on discussions and uses of the term sovereignty.
The last major current was an elaboration of this same concept, that people had a natural sovereignty which they were born with, and thereby that if the government were not providing the social goods which were dictated by this theoretical contract between governed and government that the people had a right to rise up and change the government to their liking. This theory was a particular favorite of the revolutionary Americans during the late 18th century, who even went so far as to include this train of thought in the preamble to the “Declaration of Independence”. These revolutionaries produced pamphlets, tracts and newspaper articles further expanding and disseminating this line of thought to the world, in particular the average person on the street of the British colonies in the Americas. This propagation helped lay the foundations for modern theories such as the responsibility to protect, humanitarian intervention, popular governance and made the ‘Arab Spring’ possible. To trace the evolution of the concept of sovereignty within IR it is necessary to recall the origins back through ancient Greek philosophy, Roman law and European theorists and political philosophers, in order to see the modern evolution of its use in IR and how it got there one must also look at the Pact of Westphalia, the Montevideo convention, the UN Charter and the intervention in Kosovo which will be the next section.
Pacts, Conventions and Interventions
The series of peace treaties which ended the Thirty Years war were signed in the year of 1648, and lay the foundations for the modern concept of sovereignty. The basic principles of these treaties consisted of: non-intervention in the domestic affairs and territory of other states and established a system of interdependent and equal units as a way of establishing peace and order in Europe. (Responsibility to Protect p6) The precise outcome of the treaties were: All parties would recognize the Peace of Augsburg of 1555, in which each prince would have the right to determine the religion of his own state (the principle of cuius regio, eius religio) and a general recognition of the exclusive sovereignty of each party over its lands, people, and agents abroad, and each and several responsibility for the warlike acts of any of its citizens or agents. Issuance of unrestricted letters of marque and reprisal to privateers was forbidden. (Treaty of M.ster 1648, Barro pg 5) What this shows is the first effort to prevent wars on an international scale, with each nation having a respected border, set up the principle of non-intervention, freedom of religion, and citizenship responsibility. Within this framework of treaties and peace settlements IR was born as a discipline, recognizing that one cannot simply invade a foreign power and that mutual recognition of borders would allow the IC to maintain peace and order, this standard of identity, mutual recognition and the IC to take real steps towards peaceful resolutions without resorting to petty wars and managing relationships through consent and mutual agreement.
The approaching tercentenary of the Peace of Westphalia would seem to invite a thorough reexamination of the foundations of international law and organization, and of the political, economic, ideological and other factors which have determined their development. It may not be unreasonable to believe that such a broad inquiry, along with important insights in the forces which have shaped in the past and which shape at present the course of international law and organization, might also yield some precise data regarding the ways and means of harmonizing the will of major states to self-control with the exigencies of an international society which by and large yearns for order under law..(Leo Gross, The Peace of Westphalia, 1648-1948, 1948)
The Montevideo Convention on the Rights and Duties of States was signed in 1933, and put into international customary law four basic principles which would be used to determine what a state consisted of, these four principles are: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states. Furthermore the first sentence of article 3 starts with “The political existence of the state is independent of recognition by the other states.” ( Montevideo Convention) This convention changed the manner in which states were treated under law, setting the precedent that a state was a single body, capable of being recognized without international appeal, and was subject to rights all the same as a person. What this did was make it so that populations could self-define and create their own state, free from international interference in domestic and foreign politics; thereby taking the Treaties of Westphalia one step further, now foreign affairs were covered, government by popular consent recognized and set up a system wherein states were to be treated as existing regardless of the opinions of other states: or self-recognition. This document took the rights of individuals and essentially applied them to states, so that a state’s freedom and powers were limited by the freedom and powers of other states. However this did set a precedent that pushed back the concept of responsibility to protect into the era of humanitarianism in the early 1980’s and 1990’s.
The next major milestone in the evolution of the concept of sovereignty within IR is the drafting and signing of the UN Charter in 1945, wherein the base of humanitarianism and cosmopolitanism were laid in customary international law before the IC. Article 2 section (1) states that .The Organization is based on the principle of the sovereign equality of all its Members.”, making clear that all signatories were mutually recognizing one another as sovereign states. The Charter sets forth a commitment to human rights, though vague, which is where modern states and political theoreticians draw upon for the international customary law for the responsibility to protect and places limits on a states’ sovereignty reducing each state from supreme authority (summa potestatis) or the even earlier understanding from before Treaty of Westphalia of full and essentially unlimited power of the state (Plenitudo potestatis) down to a pseudo right to nonintervention (unless there was some threat to international peace and order recognized by the IC). While the Charter does mention human rights it was vague and limited until the recent 20-30 years with new articles and amendments, which have further increased the strength of responsibility to protect through practice in interventions, such as the NATO intervention in Kosovo in 1998.
In the Federal Republic of Yugoslavia during the late 1990’s a civil war broke out, sending refugees fleeing with tales of humanitarian disaster, inhumane treatment and potential genocide. The UN in response issued a demand for ceasefire between the two parties to avoid an even greater humanitarian disaster, however when it was clear a call to ceasefire had failed and issued a new resolution in September of 1998 stating:
“…Deeply concerned also by reports of increasing violations of human rights and of international humanitarian law, and emphasizing the need to ensure that the rights of all inhabitants of Kosovo are respected, reaffirming also the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia,
Affirming that the deterioration of the situation in Kosovo, Federal Republic of Yugoslavia, constitutes a threat to peace and security in the region, acting under Chapter VII of the Charter of the United Nations…” (United Nations Security Council Resolution 1199; September 23, 1998)
Here we see a double commitment and some might suggest is a mutually exclusive double commitment, first a commitment to human rights and preventing catastrophe; second a commitment to respecting the territorial integrity of a sovereign state. Since the humanitarian situation had become so grave the security council invoked article VII of the Charter of the UN, putting into practice and thereby international customary law the use of responsibility to protect by sending in a peace-keeping mission. Unfortunately, this peace-keeping mission did not prevent humanitarian disaster and in some infamous cases aided the Yugoslav government in its attempt to oppress the ethnic minorities within Kosovo, including preventing men and boys of combat age from fleeing to safety (whereupon they were later slaughtered by Yugoslav forces). While the effect may not have been to prevent humanitarian disaster, the longer term effect was to cement in the IC and customary international public law the basis for launching future humanitarian missions and preventing genocide etc by force of arms if the UN Security Council deemed it necessary and may signal a possible change in acceptance of liberal-democratic nation of popular sovereignty over the Westphalian notion of state sovereignty. (Schaub p12)
Before moving onto the most modern theories and evolutions of the concept of sovereignty, this author will sum up what the evolutions the concept has gone through since Aristotle. Ancient Greek and Roman concepts related to sovereignty were based upon a manner of ordering life within city-states or empires, rather than with reasoning out the hows or whys of government sovereignty. Political philosophers and theorists broadened this understanding from Machiavelli to Rousseau to the American Revolutionists, and turned it into a concept which gave the basis for IR, international customary public law, human rights, humanitarian interventions, the responsibility to protect, peace-oriented solutions to interstate and intrastate issues and now for the next section the current living streams of the evolution of the concept of sovereignty.
Within modern scholarly work there have been many questions raised with the rise of globalization, the internet and popular uprisings; some have suggested what we are seeing is the end to the traditional territorial unit and the beginning of control over networks rather than land as being the primary relation of states. This is a large part due to fear of the changing nature of IR and of sovereignty, and to this E.H. Carr said on page 219 within ‘The End of the Old Order‘ :“Few things are permanent in history; and it is rash to assume the territorial unit of power is one of them.” One thing can be certain within the world and that is change, in both concepts and real-world utilization of previous doctrines both IR and sovereignty are among the things which change and are changing. As you read the words on this page diplomats, representatives, international organizations and nongovernmental organizations (hereafter referred to as IO’s and NGO’s respectively) are changing the usage and meaning of sovereignty, broadening and deepening its power in customary public law and increasing the acceptance of its use by the IC by using it in view of the international public square. (Bolewski 2013) 鉄tates define the meaning of sovereignty through their engagement in practices of mutual recognition, practices that define both themselves and each other..(Biersteker, state sovereignty territory p2) Networks such as the internet pose both a challenge and open promising new doors for the future of sovereignty in IR. This can best be seen with groups like ‘Anonymous’ (a cell-based group of international hackers), ‘Wikileaks’ and other such groups are changing the landscape of IR by bringing the individual sovereignty into direct contact with the state-level sovereignty through direct action and creating new questions of international governance. Another challenge is the doctrine of responsibility to protect which came out of the Rwandan genocide in the mid 1990’s, where states that are strong enough have a responsibility to protect innocents and civilians from atrocities, human rights violations and genocides within the framework of non-intervention and territorial sovereignty. Globalization, increased ease of international travel and the internet bring the world closer together they also pose challenges of governance as who is responsible for what and for whom and where. The biggest challenges that the next decades will see ensue is that of pollution, global climate change and territorial integrity, wherein a global problem (climate change) has individual creators (or violators as may be the case). Global compacts have yet to function to prevent the level of world C02 emissions as the level of CO2 emissions in the atmosphere has never been higher. (Carrington 2013) Who should save the world from this international problem and how, in what form can agreements be enforced; with these questions in mind this author looks to the international public square and students studying international relations for the answer.
As our general level of interconnectedness via globalization increases the traditional territorial base of sovereignty is becoming less relevant while the control of networks is becoming more important. Institutions such as the UN, NATO, IO’s and NGO’s are changing the landscape of IR in favor of a new conception and recognition of sovereignty from one of a traditional nation to a democratic-liberal nation and perhaps in the near future a new form of sovereignty all together. While some may argue that these new changes are undermining or threatening to undermine state sovereignty it can also be viewed as the utilization of a state’s sovereignty by engaging in binding agreements with other states in order to best provide social goods and rights to their citizens and solve global issues.
The commitments by which states bind themselves in advance to principles… and their delegations to international nongovernmental entities of the management of important elements of transnational affairs, do not constitute a surrender of sovereign power but rather its exercise.(Krasner p5)
In cases such as Kosovo, Libya and Syria we can see a new conception of sovereignty and recognition of authority resting on a government’s provision of rights to its population and the duty of every nation to provide basic social goods to its citizens as more important than traditional conceptions of sovereignty. With new technology and new institutions in the new future new types of governance may be born in the near future, leading to a revolution in how sovereignty is seen and the type of governance provided on a global scale.
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