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Sovereignty-Modern: A New Approach to an Outdated Concept

Published online by Cambridge University Press:  27 February 2017

John H. Jackson
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Although much criticized, the concept of “sovereignty” is still central to most thinking about international relations and particularly international law. The old “Westphalian” concept in the context of a nation-state’s “right” to monopolize certain exercises of power with respect to its territory and citizens has been discredited in many ways (as discussed below), but it is still prized and harbored by those who maintain certain “realist” views or who otherwise wish to prevent (sometimes withjustification) foreign or international powers and authorities from interfering in a national government’s decisions and activities. Furthermore, when one begins to analyze and disaggregate the concept of sovereignty, it quickly becomes apparent that it has many dimensions. Often, however, the term “sovereignty” is invoked in a context or manner designed to avoid and prevent analysis, sometimes with an advocate’s intent to fend off criticism orjustifications for international “infringements” on the activities of a nation-state or its internal stakeholders and power operators.

Type
Research Article
Information
American Journal of International Law , Volume 97 , Issue 4 , October 2003 , pp. 782 - 802
Copyright
Copyright © American Society of International Law 2003

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References

* Of the Board of Editors. This article is the basis of a chapter in a book to be published as an expanded version of Professor Jackson’s Hersch Lauterpacht Memorial Lectures delivered November 5, 6, & 7, 2002, at Cambridge University.

1 See Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 41 ILM 536 (2002) (Int’l Ct. Justice, Feb. 14, 2002) (especially separate opinion of Judge ad hoc Bula–Bula, id. at 597 (in French)).

2 One classic exception may be the end–of–a–war treaty, at least in some circumstances. In addition, there are sticky problems in connection with state succession, including whether the colonial imposition of obligations carries over to a newly independent state.

3 An example of an “evolutionary approach” can be seen in some of Professor Thomas Franck’s writings, particularly, Thomas M., Franck, Recourse to Force: State Action Against Threats and Armed Attacks 8 (2002)Google Scholar (noting the evolution of practice regarding the veto power under the UN Charter). See also United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WTO Doc. WT/DS58/AB/R, para. 130 (adopted Nov. 6, 1998).

4 E.g., John H., Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 AJIL 310 (1992)Google Scholar.

5 See Curtis A., Bradley & Jack L., Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 816 (1997)Google Scholar; Jack L., Goldsmith & Eric A., Posner, Understanding the Resemblance Between Modern and Traditional Customary International Law, 40 Va. J. Int’l L. 369 (2000)Google Scholar; Patrick Kelly, J., The Twilight of Customary International Law, 40 Va. J. Int’l L. 449 (2000)Google Scholar.

6 This article builds on several other of my published works. John H., Jackson, The Great 1994 Sovereignty Debate: United States Acceptance and Implementation of the Uruguay Round Results, in Politics, Values, and Functions: International Law in the 21st Century—Essays in Honor of Professor Louis Henkin 149 (Jonathan I., Charney et al. eds., 1998)Google Scholar [hereinafter Jackson, The Great Sovereignty Debate]; John H., Jackson, Sovereignty, Subsidiarity, and Separation of Powers: The High–Wire Balancing Act of Globalization, in The Political Economy of International Trade Law: Essays in Honour of Robert E. Hudec 13 (Daniel L. M., Kennedy & James D., Southwick eds., 2002)Google Scholar; see also Jackson, supra note 4; John H., Jackson, The WTO Dispute Settlement Understanding—Misunderstandings on the Nature of Legal Obligation, 91 AJIL 60 (1997)Google Scholar (Editorial Comment); John H., Jackson, William J., Davey, & Alan O., Sykes, Legal Problems of International Economic Relations: Cases, Materials and Text on The National and International Regulation of Transnational Economic Relations (4th ed. 2002)Google Scholar. This article is also colored by some of my as yet unpublished work, particularly course lectures and the lecture series delivered recently at Cambridge University, cited in the asterisked note supra, The Changing Fundamentals of International Law and International Economic Law: Perspectives on Sovereignty, Subsidiarity, Power Allocation and International Institution Building.

7 John H., Jackson, The WTO “Constitution” and Proposed Reforms: Seven “Mantras” Revisited, 4 J. Int’l Econ. L. 67 (2001)Google Scholar (addressing “mantras” related to the WTO).

8 See, e.g., Michael, Ross Fowler & Julie, Marie Bunck, Law, Power, and the Sovereign State (1995)Google Scholar; Thomas L., Friedman, The Lexus and the Olive Tree: Understanding Globalization (1999)Google Scholar; The Greening of Sovereignty in World Politics (Karen T., Liftin ed., 1998)Google Scholar; Stephen D., Krasner, Sovereignty: Organized Hypocrisy (1999)Google Scholar; State, Sovereignty, and International Governance (Gerald, Kreijen et al.eds., 2002)Google Scholar; State Sovereignty as Social Construct (Thomas J., Biersteker & Cynthia, Weber eds., 1996)Google Scholar; Subsidiarity and Shared Responsibility: New Challenges For Eu Environmental Policy (Ute, Collier, Jonathan, Golub, & Alexander, Kreher eds., 1997)Google Scholar; Centre For Economic Policy Research [CEPR], Making Sense of Subsidiarity, in Annual Report: Monitoring European Integration 4 (1993)Google Scholar [hereinafter CEPR, Subsidiarity]; see also Abram, Chayes & Antonia, Handler Chayes, The New Sovereignty (1995)Google Scholar.

9 See, e.g., Louis, Henkin, International Law: Politics and Values (1995)Google Scholar; Marcel, Brus, Bridging the Gap Between State Sovereignty and International Governance: The Authority of Law, in State, Sovereignty, and International Governance, supra note 8, at 3 Google Scholar.

10 Friedman, supra note 8, at xviii. In particular, I note his interesting comment at that page:

I feel about globalization a lot like I feel about the dawn. Generally speaking, I think it is a good thing that the sun comes up every morning. It does more good than harm. But even if I didn’t much care for the dawn there isn’t much I could do about it.

11 Some historical literature claims that at the turn of the previous century (late 1800s, early 1900s), the world was very integrated and, arguably, more freely permitted transactions to cross borders than at present. See, e.g., Jeffrey, Frankel, Globalization of the Economy, in Governance in a Globalizing World 45 (Joseph S., Nye Jr. & John D., Donahue eds., 2000)Google Scholar. However, the circumstances are vastly different today, particularly in view of the factors mentioned in the text, which have an astonishingly different impact on globalization of world society than the factors involved one hundred years ago.

12 For example, the “just in time” inventory principles that have been introduced during the last few decades, calling for the smooth and efficient operation of communication transport, so that a factory can depend on the arrival of needed inputs just in time for production, without having to carry the interest impact of the purchase cost as well as the cost of storage. Clearly, recent events involving terrorism are changing that type of view of the globalized integration of production. See, for example, in addition to other works cited herein, Ruth, Lapidoth, Jerusalem—Past, Present and Future, 48 Revue Internationale De Droit Comparé 9, 32–33 (1996)Google Scholar; Munther J., Haddadin, Learning to Share: Divided Sovereignty over Water Resources, Harv. Int’l Rev., Summer 1995, at 22 Google Scholar; Ruth, Lapidoth, Redefining Authority: The Past, Present, and Future of Sovereignty, id. at 8 Google Scholar.

13 See, e.g., John H., Jackson, The Jurisprudence of the GATT and the WTO: Insights on Treaty Law and Economic Relations (2000)Google Scholar [hereinafter Jackson, the Gatt and the WTO]; John H., Jackson, the World Trading System: Law and Policy of International Economic Relations (2d ed. 1997)Google Scholar; Jackson, Davey, & Sykes, supra note 6, ch. 7; John H., Jackson, Dispute Settlement and the WTO: Emerging Problems, 1 J. Int’l Econ. L. 329 (1998)Google Scholar [hereinafter Jackson, Dispute Settlement].

14 In slightly more than eight years of existence (since fan. 1, 1995), the WTO dispute settlement system has received 295 complaints, see Update of WTO Dispute Settlement Cases, WTO Doc. WT/DS/OV/14 (June 30, 2003), and has completed 71 with adopted reports. The total number of pages of the jurisprudence exceeds twenty–two thousand, and all informed observers seem to recognize that this is indeed a remarkable achievement, particularly when one examines the intricacy and complexity of the cases, and the importance of the analysis and reasoning. See, e.g., Kara, Leitner & Simon, Lester, WTO Dispute Settlement 1995–2002: A Statistical Analysis, 6 J. Int’l Econ. L. 251 (2003)Google Scholar.

15 Henkin, supra note 9, discussed in Jackson, supra note 6, at 149.

16 The “Treaty of Westphalia” is the Peace Treaty Between the Holy Roman Emperor and the King of France and Their Respective Allies, Oct. 24, 1648, available at <http://fletcher.tufts.edu/multi/texts/historical/westphalia.txt> (visited Mar. 28, 2003).

17 Richard N., Haass, former ambassador and director of Policy Planning Staff, U.S. Department of State, Sovereignty: Existing Rights, Evolving Responsibilities, Remarks at the School of Foreign Service and the Mortara Center for International Studies, Georgetown University, at 2 (Jan. 14, 2003)Google Scholar, transcript available at <http://www.georgetown.edu/sfs/documents/haass_sovereignty_20030114.pdf>. Ambassador Haass is currently president of the Council on Foreign Relations.

18 See supra note 8, especially Chaves & Chayes.

19 Krasner, supra note 8, at 9, where he describes four ways that the term “sovereignty” has been used:

domestic sovereignty, referring to the organization of public authority within a state and to the level of effective control exercised by those holding authority; interdependence sovereignty, referring to the ability of public authorities to control transborder movements; international legal sovereignty, referring to the mutual recognition of states or other entities; and Westphalian sovereignty, referring to the exclusion of external actors from domestic authority configurations.

20 Fowler & Bunck, supra note 8, at 21 (quoting Quincy Wright, Mandates Under The League of Nations 277–78 (1968)).

21 Cynthia, Weber & Thomas J., Biersteker, Reconstructing the Analysis of Sovereignty: Concluding Reflections and Directions for Future Research, in State Sovereignty as Social Construct, supra note 8, at 278, 278 Google Scholar.

22 Id.

23 State, Sovereignty, and International Governance, supra note 8.

24 Henry, Schermers, Different Aspects of Sovereignty, in id. at 185, 192 Google Scholar.

25 An Agenda For Peace—Preventive Diplomacy, Peacemaking, and Peace–Keeping, Report of the Secretary General, UN Doc. A/47/277–S/24111, para. 17 (1992), UN Sales No. E.95.I.15 (1995).

26 UN Secretary–General Kofi Annan, quoted in Brus, supra note 9, at 19.

27 Kofi A., Annan, Secretary–General’s Speech to the 54th Session of the General Assembly, UN Doc. SG/SM/7136 (1999)Google Scholar.

28 Michael J., Glennon, Limits of Law, Prerogatives of Power: Interventionism After Kosovo (2001)Google Scholar.

29 Thomas M., Franck, The Emerging Right to Democratic Governance, 86 AJIL 46, 90 (1992)Google Scholar.

30 See text at notes 50–54 infra and cited references.

31 Robert H., Jackson, Quasi–States: Sovereignty, International Reiations, and the Third World (1990)Google Scholar. Krasner, in his book, supra note 8, elaborately describes many such anomalies, which led him to the title Sovereignty: Organized Hypocrisy.

32 Wye, River Memorandum, Oct. 23, 1998, Isr.–PLO, 37 ILM 1251 (1998)Google Scholar (witnessed by President Bill Clinton); see also Michael, Barnett, Sovereignty, Nationalism, and Regional Order in the Arab State System, in State Sovereignty as Social Construct, supra note 8, at 148 Google Scholar (containing a remarkable brief account of the history of the “Arab state system” and its tensions with Westphalian notions of sovereignty). The history of Middle East negotiations, including the Wye Plantation discussions, is replete with references to the problem of Jerusalem, as well as other problems that challenge traditional notions of sovereignty with respect to territory, such as shared sovereignty for holy sites and allocation of governmental responsibilities, including control of security.

33 See works cited in note 8 supra.

34 General Agreement on Tariffs and Trade, Oct. 30, 1947, Art. XXXIII, TIAS No. 1700, 55 UNTS 194 [hereinafter GAIT]; Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, Art. XII, in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (1999) [hereinafter WTO Agreement].

35 Many examples of linkages exist, such as pressures by the European Union for human rights protection in the Cotonou Agreement, the Association Agreement with African, Caribbean, and Pacific States. See Elisabeth, de Vos, The Cotonou Agreement: A Case of Forced Regional Integration ? in State, Sovereignty, and International Governance, supra note 8, at 497 Google Scholar; see also Krasner, supra note 8, at 105 (for other human rights linkages); Gary, Clyde Hufbauer Jeffrey J., Schott, & Kimberly, Ann Elliott, Economic Sanctions Reconsidered (3d ed. forthcoming 2004)Google Scholar (for economic sanctions to promote human rights). On IMF conditionality, see, for example, Deborah E., Siegel, Legal Aspects of the IMF/WTO Relationship: The Fund’s Articles of Agreement and the WTO Agreements, 96 AJIL 561, 572–75 (2002)Google Scholar.

36 Henkin, supra note 9, at 10, quoted in Jackson, The Gatt and the WTO, supra note 13, at 367.

37 See State, Sovereignty, and International Governance, supra note 8, at 282–83.

38 Haass, supra note 17, at 3.

39 I admit that in many ways this incident considerably influenced my thinking about sovereignty. I also testified at this hearing. Jackson, The Great Sovereignty Debate, supra note 6, at 174 n.31.

40 The Uruguay Round of the General Agreement on Tariffs and Trade: Hearing Before the Senate Comm. on Foreign Relations, 104th Cong. (1994), 1994 WL 266499 Google Scholar.

41 Id. (prepared statement of Ralph Nader).

42 The author previously articulated these concepts in Jackson, The GATT and the WTO, supra note 13, at 369. “Power” is used here similarly to the phrase “effective” or “legitimate authority,” although these terms could be subject to considerable additional discussion.

43 Franck, supra note 29; see also International Commission on Intervention and State Sovereignty [ICISS], The Responsibility to Protect 11 (International Development Research Centre, 2001); Schermers, supra note 24.

44 As an exercise verifying this proposition, the author, with very able student research assistance, formulated a chart of the many news and other reports that touch on these allocation–of–power questions at various levels of government. This report involves too many instances to include in this article, but we could make it available to interested persons. As an example, one can examine the Financial Times (London) for May 12, 2003, which in this single issue touches on seven or more topics of “allocating power or authority”; they include the United Kingdom’s consideration of joining the euro single currency, the role of international law in cases of unilateral use of armed force, European Union measures relating to carbon emissions, testing requirements for chemicals, the control of Iraqi oil exports, WTO rulings related to steel tariffs, and ideas for a European common defense fund.

45 Cary, Coglianese, Globalization and the Design of International Institutions, in Governance In Aglobalizing World, supra note 11, at 297, 298–300 Google Scholar.

46 Robert O., Keohane, International Relations, Old and New, in A New Handbook of Political Science 462, 469 (Robert E., Goodin & Hans–Dieter, Klingemann eds., 1996)Google Scholar.

47 John H., Jackson, International Economic Law in Times That Are Interesting, 3 J. Int’l Econ. L. 3 (2000)Google Scholar. See also Regulatory Competition and Economic Integration: Comparative Perspectives (Daniel C., Esty & Damien, Geradin eds., 2001)Google Scholar; and articles in 3J. Int’l Econ. L. 215–385 (2000).

48 Ronald W., Jones, Globalization and the Theory of Input Trade 135 (2000)Google Scholar.

49 William C., Clark, Environmental Globalization, in Governance in A Globalizing World, supra note 11, at 86 Google Scholar.

50 For a succinct overview of the history of the concept of subsidiarity, with mention of sources that go back as far as Aristotle and a sixteenth–century book by the political philosopher Johannes Althusius, leading to nineteenthand twentieth–century Catholic social thought, including the papal encyclical Quadragesima Anno (fortieth year) in 1931, see Thomas, Stauffer, Subsidiarity as Legitimacy? in World Bank Institute, Intergovernmental Fiscal Relations and Local Financial Management Program, topic 3 (July 26–Aug. 6, 1999), at <http://www.worldbank.org/wbi/publicfinance/documents/staurfer.pdf>Google Scholar; see also Paolo G., Carozza, Subsidiarity as a Structural Principle of International Human Rights Law, 97 AJIL 38 (2003)Google Scholar.

51 CEPR, Subsidiarity, supra note 8; see also Carozza, supra note 50 (a remarkably full account and history of the concept of subsidiarity, which elaborates an argument for its importance in the context of applying international human rights obligations, somewhat counter to the approach of many human rights advocates who argue that human rights norms are “universal”).

52 George W., Bush, Campaign speech made to the Annual Convention of the National Conference of State Legislatures in Chicago (July 18, 2000)Google Scholar, quoted in Lisa B., Song, Bush Pushes More State, Local Control of Schools, Chi. Trib., July 18, 2000 Google Scholar, Metro §, at 1 (online ed.), available in LEXIS, News Library, Majpap File; transcript of entire speech available at <http://www.pbs.org/newshour/bb/politics/july–dec00/stump_7–20.html> (visited Sept. 11, 2003).

53 Gerard, Kreijen, The Transformation of Sovereignty and African Independence: No Shortcuts to Statehood, in State, Sovereignty, and International Governance, supra note 8, at 45 Google Scholar.

54 See Tip, O’Neill & Gary, Hymel, All Politics is Local (1994)Google Scholar.

55 See generally Mark, Tushnet, Globalization and Federalism in a Poit–Printz World, 36 Tulsa L.J. 11 (2000)Google Scholar (and noted references); see also infra note 73 and corresponding text.

56 Elaine, Ciulla Kamarck, Globalization and Public Administration Reform, in Governance in A Globalizing World, supra note 11, at 229, 250 Google Scholar.

57 See supra note 44.

58 Coglianese, supra note 45.

59 Another aspect of opposing categories comes into play here, although I will not develop that very much in this article; that is, the allocation of power as between government institutions (at all levels and among different horizontally equal institutions), on the one hand, and nongovernment institutions (private enterprises, nongovernmental organizations, pro bono institutions, etc.), on the other hand. This portion of the analysis would push one into questions of market–oriented economic structures and their value, as well as their limitations.

60 When my assistant and I examined a list of all the United Nations nation–states and ranked them from those with the smallest population to those with the largest population, and then counted from small upward until we passed the midpoint, so that we had a majority of the UN nation–states, we learned that the total population of that majority (ranked from the smallest upward) amounted to less than 5% of the total population of all of the nationstates that are UN members. Likewise, when we do this with a slightly larger list of all nation–states and include some that are not UN members, we get the same result. I wish to acknowledge the able assistance of Ms. Woojung Kim, J.D. candidate, Georgetown University Law Center, for the study relating to this footnote.

61 See, e.g., Jackson, supra note 4.

62 See, for example, the powerful criticisms of customary international law by Bradley & Goldsmith, supra note 5; Goldsmith & Posner, supra note 5; Kelly, supra note 5.

63 Brus, supra note 9, at 18; see also ICISS, supra note 43, Supplementary Volume, at 129.

64 For a previous article on the economic analysis of power allocation, see John H., Jackson, Global Economics and International Economic Law, 1 J. Int’l Econ. L. 1 (1998)Google Scholar.

65 See, e.g., Richard, Lipsey, Paul, Courant, Douglas, Purvis, & Peter, Steiner, Microeconomics, pt. 4, at 207 (12th ed. 1998)Google Scholar.

60 International Competition Policy Advisory Committee, Final Report to the Attorney General and Assistant Attorney General for Antitrust (2000), available at <http://www.usdoj.gov/atr/icpac/finalreport.htm>>Google Scholar.

67 See WTO Agreement, supra note 34. See also the following works by this author: The Gatt and the WTO, supra note 13; The World Trading System, supra note 13; Dispute Settlement, supra note 13; The WTO “Constitution” and Proposed Reforms, supra note 7.

68 Ronald H., Coase, The Firm, The Market and The Law, ch. 5 (1988)Google Scholar (reprint of 1960 article); Douglass C., North, Institutions, Institutional. Change, and Economic performance (1990)Google Scholar.

69 See, e.g., Brink, Lindsct & Dan, Ikenson, Antidumping Exposed: The Devilish Details of Unfair Trade Law (2003)Google Scholar.

70 See note 44 and text at notes 42–44 supra.

71 Douglas, Irwin, Free Trade Under Fire 53 (2002)Google Scholar (and citing Gene M., Grossman & Alan B., Krueger, Economic Crowth and the Environment, 110 Q.J. Econ. 353 (1995)Google Scholar); see United Nations, Report of the World Summit on Sustainable Development, UN Doc. A/CONF.199/20 (2002)Google Scholar, UN Sales No. E.03.II.A.1, available at <http://www.johannesburgsummit.org/html/documents/documents.html>. Readers will note that no organization was established. See also Steve, Charnovitz, A World Environment Organization, 27 Colum. J. Envtl. L. 323 (2002)Google Scholar.

72 Francis, Jacobs & Robin, White, The European Convention on Human Rights (3d ed. 2002)Google Scholar. “Margin of appreciation” is close to a concept of “deference” to another (lower?) level of government. Sometimes this operates as a “standard of review,” particularly in court proceedings. Id. at 210. The U.S. Supreme Court’s “ Chevron doctrine” in judicial review of administrative determinations is another example.

78 See, e.g., Pascal, Lamy, Europe’s Policymakers Live in the Real World, Fin. Times, Oct. 28, 2002, at 5 Google Scholar (editorial); Daniel, Dombey & George, Parker, Plan for a New Europe ‘Will Last 50 Years,’ Fin. Times, Oct. 7, 2002, at 4 Google Scholar; The Future of the European Union: Can These Bones Live? Economist, Nov. 2, 2002, at 51 Google Scholar; British Prime Minister Tony Blair, A Clear Course for Europe, Keynote Speech, Cardiff, Wales (Nov. 28, 2002), transcript available at <http://www.numbei–10.gov.uk/output/Pagel739.asp>>Google Scholar.

74 See, e.g., Bush v. Gore, 531 U.S. 98, 111–12, 141–42 (2000).

75 Don, Greig, ‘International Community’, ‘Interdependence’ and All That. . . Rhetorical Correctness? in State, Sovereignty, and International Governance, supra note 8, at 521, 563–66 Google Scholar.

76 Greig, supra note 75, at 563–66.

77 Id.

78 Franck, supra note 29, at 51.

79 Thomas, Hobbes, Leviathan 100 (Michael, Oakeshott ed., Collier, Books 1962)Google Scholar (1651) (“[In a state of nature there are] no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”).

80 Robert O., Keohane, Governance in a Partially Globalized World, 95 Am. Pol. Sci. Rev. 1 (2001)Google Scholar.

81 Id.