Academic journal article Chicago Journal of International Law

Recalling the Case for Sovereignty

Academic journal article Chicago Journal of International Law

Recalling the Case for Sovereignty

Article excerpt

In the spring of 1994, Louis Henkin, then the president of the American Society for International Law, urged that the word "sovereignty" should be "banished from polite or educated society.1 By the spring of 2004, as the UN security Council grappled with the impending transfer of authority to a new government in Iraq, diplomats could not stop talking about "sovereignty."

Optimists may see the recovery of the word into "polite or educated company" as a sign of progress. Politicians and pundits had learned, after a decade of rhetoric about "global governance" and a "post-sovereign world," that sovereignty was, after all, an indispensable concept.

Yet among the most insistent champions of "full sovereignty" for Iraq in the spring of 2004 were European leaders who were, at the same time, urging European states to yield more of their own sovereign attributes to the European Union.2 And only the year before, such figures as French President Jacques Chirac and German Chancellor Gerhard Schroeder had insisted that the United States could not make war on Iraq without UN approval-which might seem to be a considerable restriction on American sovereignty.3

From the most immediate political perspective, there is an obvious thread of consistency in such European protests, since they aim, at every turn, to maintain veto points on American initiatives. Opponents of the American-led war in 2003 had obvious incentive to claim that the war could only be legitimate if endorsed by the Security Council, since the Council was not then prepared to endorse the war. Past opponents of the war had somewhat similar incentives, in 2004, to challenge any arrangement in which the new government in Iraq might be left dependent on troops supplied by the United States and its partners in the war. Those who wanted to challenge or contain the United States had obvious reason to favor an enhancement of central authority for the European Union. Many EU member states had actually sided with the United States in the war against Iraq in 2003, contrary to the preferred policy of the EU's otherwise dominant member states, France and Germany.4

At a deeper level, the debate revealed quite different assumptions about the meaning of sovereignty. If it is true, as the French and German governments contended, that only the Security Council can authorize resort to war, then the UN has much greater authority than the United States has acknowledged in its own past practice. The United States has frequently deployed force in its foreign policy since 1945 and usually without any formal authorization, often without even implicit or indirect approval, from the Security Council.5

In the spring of 2004, the question was whether forces of the American-led coalition in Iraq would fall under the direct control of the ostensibly "sovereign" government of Iraq.6 The United States has not been willing to put its forces under foreign control in the past and was not willing to do so in Iraq. If the interim government in Iraq, however, was heavily dependent on security assistance from coalition forces-in facing threats from an insurgency on its own territory-then it might seem a bit odd to insist that this vulnerable and dependent Iraqi government was entirely "sovereign." The same European critics who argued that the UN must have ultimate authority on questions of war and peace thus seemed-with a certain consistency-to argue that the UN would have the last word on questions of sovereignty. The new government in Iraq could be "fully sovereign" if the Security Council decreed that it would be.

Beneath the rhetorical posturing on all sides, debate over Iraq simply confirmed, once again, that there are fundamental differences between the way "sovereignty" is viewed in the United States, on the one hand, and by many Europeans, on the other. Whatever one's view about the policy merits of the Bush administration's actions in Iraq, there is every reason to think that international differences over sovereignty will continue to complicate American diplomacy in the future. …

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