Relational Sovereignty

Beginning of article

INTRODUCTION
I. HISTORICAL MODELS OF SOVEREIGNTY--AND THEIR LIMITATIONS
   A. Historical Models as Metaphors
     1. Hobbesian sovereignty
     2. Lockean sovereignty
   B. The Metaphor Breaks Down: International Humanitarian Law
   C. Limitations of Old Sovereignty Under Emergent Conditions
II. GLOBALIZATION AND RELATIONAL SOVEREIGNTY
   A. Globalization as an Opportunity to Redefine Sovereignty
   B. Relational Sovereignty
     1. Relational sovereignty defined
     2. Relational sovereignty through the lens of social theory
     3. Relational sovereignty and human rights
III. SOVEREIGNTY, GLOBALIZATION, HUMAN RIGHTS, AND
THE UNITED STATES
   A. Human Rights: Foundation Obligations
   B. The United States and Globalization
   C. The ICC: Applying Relational Sovereignty
CONCLUSION

INTRODUCTION

"[S]overeignty" is a mistake, ... a mistake built upon mistakes, which has barnacled an unfortunate mythology.

--Louis Henkin (1)

Sovereignty demarcates the line between one nation state and others in an international system. Two conceptions of sovereignty have dominated philosophical accounts of citizenship and the nation state and have in turn influenced legal and political theory: a Hobbesian account, which defines the nation state by its national borders and minimal obligations to its citizens; and a Lockean account, which extends the sovereign's obligations to protect its citizens' private property interests. Globalization provides the conditions to constitute a third revolution in sovereignty; it is an opportunity to make a choice between a definition of sovereignty as yet stronger declarations of borders and difference, or something crucially different. Following social theoretical expositions that describe the subject as contingent and negotiated rather than inevitable or necessary, this Article argues that there is a third account of sovereignty, termed here as relational sovereignty. Relational sovereignty is based upon a broader notion of the state's responsibilities towards its citizens, termed here responsible governance. I argue that relational sovereignty under the conditions of globalization calls for the United States to be a better citizen at the table of international human rights action.

It is well accepted that, since the trials at Nuremberg and Tokyo, international law has reconfigured sovereignty. As Kristin Henrard points out, Nuremberg and Tokyo created the principle that public international law does not merely address disputes between states, but also holds individuals liable for their egregious violations of human rights. (2) And just as sovereignty no longer impermeably shields individuals from regulation by foreign states, states are no longer shielded from external intervention in internal actions. The international community now enters sovereign lands where civil war or errant governance leads to human rights abuses. For example, the international peacekeeping events of the 1990s in Rwanda, Somalia, East Timor, and Kosovo imply that sovereignty, for at least some governments, is only achieved when they are able to avert internal catastrophe, or maintain an appropriate level of effective control over their domestic territories, or treat their citizenry with a baseline of human rights decency. (3) The International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), and potentially the International Criminal Court (ICC), provide international human rights standards that override sovereign autonomy. Recent "regime change" events like those in Afghanistan and Iraq further indicate the transformation of national sovereignty.

Over the past decade, globalization has transformed the territorial and moral status of the nation state. (4) The older rhetoric of sovereignty as either Hobbesian protectorate or Lockean concern for citizens' property rights needs rejuvenation to emphasize instead the dynamic interactions among sovereign states and among the citizens of those states--interactions that have been with us since the Silk Road but that have become crucial with globalization. While powerful states still maintain sovereignty in respect of issues of security, "the era of sovereignty as a universal organizing principle for the management of the global system has ended." (5) It is a patchwork development, with different effects in different parts of the world.

In the analysis that follows, I focus on trends particularly over the last decade and particularly as they influence the United States under the conditions of globalization. In this global setting, international human rights law is framing the new notion of relational sovereignty. Relational sovereignty proposes that the concepts of the state as a Hobbesian national protectorate and the Lockean limited constitutional state are inadequate because they fail to account for today's historical conditions and intellectual trends. Relational sovereignty instead uses the insights of social theory to observe the multifaceted nature of the activities of citizens and their government under the conditions of globalization. Sovereignty ought to shape itself around these complex interactions and be conceived of as a multi-directional social contract.

The United States's attachment to especially Hobbesian notions of sovereignty ignores two factors. First, despite its poor record of formal participation in the international human rights system via treaty signature and ratification, the United States, arguably more than any other nation in the post-World War II period, acts as a human right's beacon. Even though the United States has decided not to sign many international human rights treaties and covenants and shows resistance to international human rights institutions like the ICC, the United States is implicated in creating international concern with human rights. This is a product of the interaction between the uniquely American attachment to the idea of human rights and the international human rights movement and system. Second, the United States is both creator and beneficiary of the juggernaut of globalization, whether globalization is seen as politics, economics, or culture. Globalization creates a dynamic interchange that has enlarged the scope of all forms of relationships--economic, political, social, cultural, and religious--between those living in the United States and those living outside its borders. These two factors normatively and prudentially suggest that relational sovereignty is in the nation's moral and political interest.

In Part I, I map out the Hobbesian and the Lockean models of sovereignty, which have influenced political theory in particular ways and have also framed legal and philosophical considerations regarding the limits of governmental power in the modern age. An analysis of the shortcomings of these models in light of recent developments in international humanitarian law follows. Part II outlines the potential for the conditions of globalization to catalyze a new model of sovereignty. I propose the reconfiguration of relational sovereignty. Part III considers two reasons why relational sovereignty is of particular interest to the United States: The first is a foundational argument that I suggest raises a form of promissory estoppel against the United States to prevent its disengagement with the international system of human rights; and the second is an argument about the role of the United States under the conditions of globalization. Finally, a brief discussion of the application of relational sovereignty to the United States's participation in the ICC concludes this Article.

I. HISTORICAL MODELS OF SOVEREIGNTY--AND THEIR LIMITATIONS

A. Historical Models as Metaphors

For legal and political theorists, the modern conversation on sovereignty begins most notably with Thomas Hobbes's description of sovereignty as unlimited rule over territory and the peoples in it. In a small but crucial turn of the kaleidoscope, Locke described sovereignty as a limited constitutional state, giving more rights than Hobbes to the citizen to make claims upon the sovereign as part of the social contract. Hobbes and Locke have each contributed to the ways in which legal and political theory conceives of the relationship between government and its citizens. Both therefore map out a particular type of sovereignty. Looking at contemporary human rights events from a Hobbesian and Lockean perspective is useful insofar as it demonstrates the concept of the social contract as a bargain of governance between citizens and their government. Of course, not all aspects of government as Hobbes and Locke envisaged it at the time they wrote transpose directly onto contemporary governmental institutions in a globalized age. But notwithstanding this, Hobbes and Locke had a grasp of how government might view its responsibilities towards its citizens, and concomitantly, how citizens might assess the rightness or utility of government action. Deploying the basic ideas of Hobbes and Locke and then transposing them to contemporary conditions provides compelling metaphorical imagery of the power dynamic between government and its citizens in present times.

1. Hobbesian sovereignty.

Rule in the Hobbesian world flowed from the absolute sovereignty of the state over its national territory. Leviathan described the state of nature for man as chaotic: Life for man was nasty, solitary, brutish, and short. (6) Man's preservation could only be ensured with an unconditional contract with the sovereign, wherein the sovereign promised internal civil order and protection from external threat. It followed that subjects were compelled to obey their sovereign unless the state itself collapsed. It also followed that the sovereign's main protective obligations were to protect and deter its citizens' activities inside its borders. The sovereign only became interested in events beyond the border when other nations threatened to enter sovereign territory. (7)

Looking at sovereignty through the imagery of Hobbes's social contract between citizen and sovereign and projecting this image onto the landscape of the twenty-first century, it is possible to see Leviathan's protective embrace at work in some key international policy approaches of the current U.S. federal administration. After barely 100 days in office, the Bush administration declared the Kyoto accords on global warming dead, rejecting eight years of work by 186 nation states. (8) President Bush decided to override the AntiBallistic Missile (ABM) treaty (9) and threatened to slash spending on nuclear safety aid for Russia. (10) During these 100 days, the United States also bombed Iraq, (11) helped shoot down a missionary's plane over Peru, (12) enforced the boycott against Cuba, and sabotaged talks between North and South Korea. (13) The United States "unsigned" the Statute of Rome, which forms the International Criminal Court, (14) and refused to participate in the treaty to ban land mines. (15) U.S. sovereignty as it has been exercised here fits into the template of Hobbesian sovereignty: In these actions, government has emphasized the inviolability of national borders and nationalist power to keep its social compact with citizens and to keep chaos outside national borders.

2. Lockean sovereignty.

Locke's Second Treatise of Government proposes that a government's sovereign authority is limited by its obligation to respect the rights of its subjects--most particularly, rights to life, liberty, and private property. (16) Locke began the metamorphosis of the subject becoming a citizen: Citizens are entitled to disapprove of their sovereign and to act upon that disapproval. This Lockean vision of citizenship is a limited one, with just two remedies. The first is the right of rebellion or secession should the sovereign overstep its bounds, or trample life, liberty, or property rights. The second, itself a product of the Enlightenment, is the concept of constitutional rights enforced by an independent judiciary. Citizens with standing in such courts are thereby empowered to challenge state authority. In other words, more is expected of the sovereign in caring for its citizens; the sovereign may be judged for behaving badly, and consequences will follow.

Sovereignty seen this way seems to aptly describe domestic U.S. politics; that is, citizens expect, at a minimum, a night-watchman state that will observe at least the negative civil and political rights more commonly associated with the U.S. Constitution than with the positive social and economic rights that are more commonly associated with constitutions of European nations. (17) Internationally, a contemporary example of Lockean sovereignty can be seen in the arena of international humanitarian law, where peacekeeping forces take the place of citizens rebelling against or seceding from the state. Whereas the entire premise of U.N. membership is observation of the provisions in the U.N. Charter to respect other nations' sovereignty, the international peacekeeping interventions in civil strife all around the globe over the last decade--Rwanda, Somalia, East Timor, Kosovo--seem to reconceive sovereignty in a crucial way. Sovereignty has not kept out the international community when the sovereign was judged incapable of ruling within the decent bounds of human rights standards.

The string of international humanitarian interventions in these countries during the 1990s demonstrated that traditional sovereignty no longer acts as an absolute shield against the world. What seems to be emerging is a notion that a sovereign's claim to impermeable borders will not hold up when the sovereign behaves irresponsibly towards its citizens. In the era of international human rights, it seems the international community has become a party to the social contract between citizens and their government. Sovereignty as a force field repelling other nation states at the border has been challenged by the international community's intervention in the social contract between citizens and their sovereign. Where a sovereign has failed to protect citizens' rights, international peacekeeping forces de facto exercise citizens' rights to rebellion or secession. The parties at the table of sovereignty today are citizens, their government, and the international community.

B. The Metaphor Breaks Down: International Humanitarian Law

The idea of sovereignty incorporating a state's duty to treat its citizens well has been at the heart of international …