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What Use for Sovereignty Today?

  • Martti KOSKENNIEMI (a1)
Abstract

To suggest that there might be good use for state sovereignty sounds counter-intuitive. After all, at least since the time of the League of Nations, we international lawyers have been critical of sovereignty. We have thought it a narrow, ethnocentric way to think about the relations of human beings. We have rehearsed a moral case against it. Sovereignty, we say, upholds egoistic interests of limited communities against the world at large, providing unlimited opportunities for oppression at home. It is, we sometimes say, “organized hypocrisy”.1 If a country claims that a matter is under its “domestic jurisdiction”, and refers to Article 2(7) of the UN Charter, we are inclined to think of this as an effort by its leaders to hide from well-founded international criticism. From a sociological perspective, we have attacked it because it fails to articulate the economic, environmental, technological, and ideological interdependencies that link humans all across the globe, giving a mistaken description of the reality of human relationships across the world. And from a functional perspective, we have observed its failure to deal with global threats such as climate change, criminality, or terrorism, while obstructing such beneficial projects as furthering free trade and protecting human rights. Therefore, we have wanted to replace it with international or global approaches, working across “artificial” national boundaries in pursuit of objectives that have nothing territorially limited about them.2

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martti.koskenniemi@helsinki.fi
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Professor, Faculty of Law, University of Helsinki; Director, Erik Castrén Institute of International Law and Human Rights, University of Helsinki.

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1. KRASNER, Stephen D., Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999).

2. See my “The Wonderful Artificiality of States” (1994) 88 American Society of International Law Proceedings 1 at 22–9. For a general discussion, BARTELSON, Jens, The Critique of the State (Cambridge: Cambridge University Press, 2001), especially at 77ff. (stressing the way critiques of the state have been invariably accompanied by efforts at reproducing statehood in some other vocabulary).

3. Nationality Decrees Issued in Tunis and Morocco (French Zone) on November 8th, 1921, Advisory Opinion, [1922] P.C.I.J. 3 at 23–4. See further KOSKENNIEMI, Martti, From Apology to Utopia. The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005), especially at 258272.

4. This is typically the view by liberal legal theorists such as Hans Kelsen or H.L.A. Hart.

5. Out of a burgeoning literature, see, e.g., GOLDSTEIN, Judith L., KAHLER, Miles, KEOHANE, Robert O., and SLAUGHTER, Anne-Marie, Legalization and World Politics (Cambridge, MA: MIT Press, 2001) and KLABBERS, Jan, PETERS, Anne, and GEIRSTEIN, Ulf, The Constitutionalization of International Law (Oxford: Oxford University Press, 2009).

6. See KANT, Immanuel, “Idea for a Universal History with a Cosmopolitan Purpose” in Hans REISS, ed., Political Writings, 2nd ed. (Cambridge: Cambridge University Press, 1991) at 4153. I have commented on this in “On the Idea and Practice for Universal History with a Cosmopolitan Purpose” in Bindu PURI and Heiko SIEVERS, eds., Terror, Peace and Universalism: Essays on the Philosophy of Immanuel Kant (Oxford: Oxford University Press, 2007) at 122–48; For a recent discussion of the way the thematic of the state and the “international” directs and limits the imagination of political (and legal) thought, see WALKER, R.B.J., After the Globe, Before the World (London: Routledge, 2010).

7. See, e.g., WEIBEL, Michael, “Two Worlds of Necessity in ICSID Arbitration: GMS and LG&E” (2007) 20 Leiden Journal of International Law 637.

8. “[A] sovereign state must be sovereign enough to make a binding promise both under international and municipal law”, Case No. 2321 (1974), 65 I.L.R. 1984 at 452 (International Chamber of Commerce).

9. See further Case of the SS Wimbledon, Judgment, [1923] P.C.I.J. Ser A/1., at 25.

10. Island of Palmas Case (Netherlands v. United States), [1928] 2 R.I.A.A. 829 at 869–70.

11. For recent analysis, see NIEMELÉ, Pekka, The Politics of Responsibility to Protect—Legal, Conceptual, Institutional and Practical Considerations (Helsinki: Erik Castrén Institute Research Reports, 2008) and ORFORD, Anne, “Jurisdiction Without Territory: From the Holy Roman Empire to the Responsibility to Protect” (2009) 30 Michigan Journal of International Law 981.

12. See further my “The Lady Doth Protest too Much: Kosovo, and the Turn to Ethics in International Law” (2002) 65 Modern Law Review 159.

13. For two useful assessments but on completely opposing sides, see HARRIS, Grant T., “The Era of Multilateral Occupation”(2006) 24 Berkeley Journal of International Law 1, and BHUTA, Nehal, “The Antinomies of Transformative Occupation” (2005) 16 European Journal of International Law 721.

14. See SC Res. 1244, UN Doc. S/RES/1244 (1999) (Kosovo), and SC Res. 1272, UN Doc. S/RES/1272 (1999) (East Timor). See also ORFORD, Anne, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge: Cambridge University Press, 2003), especially at 126–143.

15. STAHN, Carsten, The Law and Practice of International Territorial Administration. Versailles to Iraq and Beyond (Cambridge: Cambridge University Press, 2008) at 760762, and for those ideological implications, see ORFORD, Anne, “Book Review Article: International Territorial Administration and the Management of Decolonization” (2010) 59 International and Comparative Law Quarterly 227.

16. See KOSKENNIEMI, Martti, “Occupied Zone—a Zone of Reasonableness” (2008) 41 Israeli Law Review 13.

17. Issa and Others v. Turkey [2005] 41 EHRR 27, at para. 69 (Judgment of 30 March 2005). But see also R. (on the application of Al-Skeini) v. Secretary of State for Defence [2004] EWHC (QB) 2911, [2005] 2 W.L.R. 1401. See also Legality of the Threat and Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep. 226 at 239, para. 24; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep. 136, para. 106 and Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), [2005] I.C.J. Rep. 116, paras. 215–21.

18. For the argument in environmental law, see PERREZ, Franz Xaver, Cooperative Sovereignty: From Independence to Interdependence in the Structure of International Environmental Law (The Hague/Boston: Kluwer Law International, 2000).

19. I have discussed this “new natural law” further in my “Miserable Comforters: International Relations as a New Natural Law” (2009) 15 European Journal of International Relations 395.

20. For a brief but effective summary of the conventional account, see van GELDEREN, Martin, “The State and its Rivals in early-Modern Europe” in Quentin SKINNER and Bo STRÅTH, eds., States and Citizens (Cambridge: Cambridge University Press, 2003) at 8393.

21. PUFENDORF, Samuel, “On the Law of Nature and of Nations”, in Craig CARR and Michael SEIDL, eds., Political Writings (Oxford: Oxford University Press, 1994) at 242.

22. I have begun such a critique, for example, in my “Constitutionalism, Managerialism and the Ethos of Legal Education” (2007) 1 European Journal of Legal Studies 1.

23. Cf. Amy CHUA, World on Fire: How Exporting Free Market Democracy Breeds Ethnic Hatred and Global Instability (New York: Doubleday, 2003).

24. Recourse to expertise as a way of resolving the problems of the Third World as an act of faith is usefully discussed in BEARD, Jennifer L., The Political Economy of Desire: International Law, Development and the Nation State (Abingdon: Routledge, 2007), especially at 157–181.

25. Out of an enormous literature, see KENNEDY, David, “The Mystery of Global Governance”, Kormendy Lecture, Ohio Northern University, 25 January 2008, online: Watson Institute 〈http://www.watsoninstitute.org/blss/media/docs/kennedy.pdf.

26. For the still valuable distinction between a “civil association” whose members relate to each other by reference to rules and institutions recognized by them as authoritative, and managerial “enterprise-association” whose members are united by shared purposes, in terms of philosophical abstraction and as they have appeared in the history of European states, see OAKESHOTT, Michael, On Human Conduct (Oxford: Oxford University Press, 1975), especially at 108–326. The same theme is taken up by Michel Foucault in his discussion of the turn from sovereignty to what he calls bio-power, the power of life through technical discourses of management of populations in, e.g., FOUCAULT, Michel, “Il faut défendre la société”. Cours au Collège de France. 1976. (Paris: Seuil/Gallimard, 1997), especially at 213235.

27. For a useful discussion of the dangers of “immanent sovereignty”—but also of the need of a “transcendental” one (such as presupposed by arguments about “constitutions” or “constitutional principles”), see BARSHACK, Lior, “Constituent Power as Body: Outline of a Constitutional Theology” (2006) 56 University of Toronto Law Journal 185.

* Professor, Faculty of Law, University of Helsinki; Director, Erik Castrén Institute of International Law and Human Rights, University of Helsinki.

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