The upending of sovereignty

Anne-Marie Slaughter has a provocative piece which argues that Libya was not really an intervention. I’ve already used my Magritte and Duchamp jabs before, but rather than simply dismissing this as a case as writing ‘fountain’ on a urinal, it’s worth taking the time to understand what the implications of her argument are, and how radical of a rupture they are with previous ideas of sovereignty. It is then worth understanding why this rupture in the conventions of sovereignty is a potentially seriously destabilizing threat to international order as we understand it.

If we are to speak of dictatorship, let us define sovereignty in the most dicatorial sense: sovereignty is the power to decide, specifically on the state of exception. Yet all democracies which seek to preserve themselves as democracies must internalize some degree of this dictatorial content. The ability to rupture or suspend the constitutional order without the dissolution of the polity is the power of a sovereign. In the classic Hobbesian sense, the maxim of sovereignty, in order to prevent the dissolution of the polity and the return to mere nature, was protego ergo obligo. The sovereign protects, therefore subjects or citizens obey. The ability of the state to except itself from the norms of pacific civil order to quash threats from within and without is what keeps those periods of violence exceptional rather than juridically normal.

This notion of sovereignty went hand in hand with the stabilization of the international system. The delineation of zones of sovereignty, and the grant of power to enforce the political integrity which maintained those delineations, were an attempted salve on the aspirations of universal empires and endemic civil war in early modern Europe. Though it would be much longer after Hobbes’s time that such issues receded, it was through, as Schmitt has pointed out, a sense of regularity in warfare that such stability endured. This is an important distinction.

Slaughter insists that the origin of sovereignty was to protect a people from external threats. Not quite. The origin of the sovereign is to protect people from external threats and each other. After all, on the international scale, a variety of institutions can and did emerge to fight foreign invasion. The Hobbesian state emerged first and foremost because unlike a common enemy, which produces awe, but not law, the absence of a common enemy merely leaves common enmity.

Sovereignty exists to protect man from man, whether he is a neighbor or foreign invader, and to prevent any theological, economic, or ethnic dispute from undermining the state’s domination of the political. The ultimate fear of Hobbes (and many of the Hobbesians who followed him) was not foreign invasion, it was civil war.

The notion, then, that 19th century and 20th century conceptions of sovereignty originated in a need to prevent foreign intervention is misleading. They aimed to prevent civil war and its even more horrendous consequence, the internationalization of a civil war which breaks down regularity in diplomacy and warfare between sovereign entities.

The notion that governments pose a severe threat to their own people is not new. Frankly, today’s worst breaches of R2P pale in comparison with the dozens of millions of victims of Hitler, Mao, and Stalin. The notion that sovereignty exists to protect the small from the weak is a secondary component bolstered primarily by the advent of post-colonial states which emerged in a qualitatively different international legal environment than did the Occidental sovereign states.

The European great powers routinely breached the sovereignty of small powers, because a core consideration of their criteria of sovereignty was that disordered states could unleash ideological plagues which would disrupt the entire international order. After the internal theological disputes of German states set Europe aflame and the internal political disputes of France repeated the performance, European states intervened as part of a counterrevolution to ensure the sovereign filled their obligation to the international community, which was to maintain order. If a state failed to suppress its potential for spreading civil war or revolutionary fervor, its sovereignty was revoked, since it no longer fulfilled the sovereign function of providing a Katechon against the dissolution of the political order.

In this view, society was a danger to itself without the state, and if such society were to spread this existential political violence beyond its borders, or capture the state as a vehicle to prosecute its partisan crusades. Thus the exceptional criteria for violating sovereignty were, in theory, oriented around the preservation of the sovereign order itself. Naturally great powers can and did violate sovereign orders, but the emphasis on the proper form of hostilities as between sovereign states remained important.

This new re-thinking of sovereignty, however, essentially strips its value. The sovereign, rather than providing protection and demanding obedience, protects and serves. Sovereignty is no longer meaningful except as an instrument to maintain legitimacy, which is the suppression of the violent character of sovereignty. A state could previously use sovereign power within its borders to restore civil order through the application of force in a state of exception or emergency. Now, the state no longer has that power to decide, because a combination of its own citizens and the international community, which means, in practice, the great powers, can eliminate entirely the sovereign content of a state.

Counterrevolutionary interventionism recognized the role of the sovereign in preventing society’s tensions from reaching the heights of political violence. It abrogated sovereignty in order to preserve the conditions which made the existence of sovereign states possible, and to reconstitute or re-orient sovereign power within the target state.

The Responsibility to Protect, however, seeks to essentially normalize the exception that is intervention, and, in so doing, dispenses almost entirely with the juridical content of sovereignty as we know it. A state which has a legitimized international veto on its ability to use violence to maintain order is not, juridically, sovereign. It may behave as a sovereign state. It may be legally recognized as an independent state. But if its ability to preserve its sovereignty against challengers from within or civil war no longer exists, it no longer has the ability to “decide” and is not truly, even on paper, sovereign.

We can say this is a good thing or a welcome change. We cannot say that it leaves sovereignty intact. It elevates, in fact, in legal form, great powers to the role of sovereign, and renders all other states potential subjects.

The relationship of protection and obedience which defines Hobbesian sovereignty now, in theory, lies between the enforcing powers of the international community (in practice the great powers which control the UNSC, the legitimizing body of international force) and smaller states. The international community protects these smaller states from external intervention, in theory, so long as smaller states obey international demands on their internal activity – demands which include the circumscribing of these states’ ability to control their own populations.

Again, this might be a welcomed development, but we must call it what it is: the replacement of sovereignty as prerequisite for control with legitimacy as a condition for receiving some features of sovereign form, which the international community, through consensus and with the existence of a “call for help,” can revoke at any time. The last word on the state of the emergency lies with the international community.

So what implications does this have? Firstly, like all re-imaginings of international order and norms, it will ultimately serve to enable great powers to provide normative justifications for their usual behavior. It would be a mistake to identify R2P as a plot because its astounding effect on the sovereignty of small states is not very widely understood by either great powers or its advocates. Nobody advocating R2P is setting out to legitimize the ultimate transfer of sovereign duties and powers from small states to great powers. However, R2P will have that effect.

Firstly, the notion that the international community is a purely positivistic assessor of international obligations is manifestly false. The international community, as embodied in the United Nations and especially the UNSC, which sanctions force, is a concert of powers. It does not “automatically” legally recognize genocide nor can it automatically compel powers to act. Statesmen of the veto powers must first agree among themselves and then compel agreement among rotating members.

Some do not believe that the great powers would ever violate R2P and “brazenly massacre thousands.” Really? China brazenly massacred thousands in 1989, and judging by the fact that it spends more on internal security than on external defense, it likely fears it may need to again, and wants to be able to. Russia, just in the Second Chechen War, killed at least 25,000 civilians (more than total military or civilian casualties in the Libyan Civil War, estimated thus far) and up to 200,000 civilians (more than the Libyan Civil War will likely ever claim). We’re supposed to assume that Russia would never again resort to artillery as a method of internal control in the Caucasus, nor China ever use its PLA troops in Tibet or Xinjiang to suppress separatists there? Because of trade? If anything, the importance of these countries to the international economy gives them increased ability to prosecute ruthless suppression of their own peoples, since that raises the cost of standing up for strategically unimportant minority populations substantially.

Since China and Russia are on the Security Council, any attempted international action against them that required UNSC authorization would be illegitimate, and the ability of a foreign populace to compel great powers to respond would be nil without unilateral action which dispenses entirely with legitimacy.

Not only that, but veto powers can extend the umbrella of R2P immunity to any client of their choice, leaving Burma and North Korea free to abuse their populations as they wish without entering into the same quandary of illegitimate action. As with standards of humanitarian intervention, the likely result of this frustrated international consensus will be the elevation of the other legitimizing factor that Slaughter mentions, the connection between the citizens calling for help and the great powers capable of acting, as a legitimizing factor. The logic of humanitarian intervention was often deployed outside the auspices of UN approval, by the US and NATO in Kosovo in 1999 and by the Russian military in Georgia in 2008. The connection between the citizens demanding help and the “community” capable of rescuing them is hardly a revolutionary new idea.

The idea that a people can ask for intervention is an inherently dangerous and ambiguous one. After all, in a country with a more fractured ethnic or political make-up, one faction or segment of the population might be far more supportive of intervention than others, even if all are victims of the same government. Whose calls for help are legitimate? How many do there need to be? Who decides which matter? Ultimately the decision on these questions lies with the great powers in the UN Security Council. A perverse set of incentives therefore may emerge in which factions may attempt to increase their power by appealing to great powers for intervention, or by intentionally allowing the conflict to become bloodier so their demands for intervention seem more legitimate. We’ve seen the beginning of this in Kosovo, but now that R2P covers any kind of violence against the populace rather than ethnically motivated violence with potential for genocide, we will likely see new forms of it.

The use of this dynamic will undoubtedly horrify China, which would not at all like to set a precedent for the voices of dissidents legitimizing, in any form, intervention against a state. Certainly the notion that Russia and China will find themselves compelled to go along with R2P norms is false. China and Russia did not sanction foreign involvement in Libya’s uprising, they abstained (along with India, Germany, and Brazil). Having realized what they’ve unleashed, many of these countries are now holding up attempts to sanction Syria.

Even if they do accept it, these countries will likely re-appropriate norms for their own strategic interests. Many rising powers have a history of doing so. After all, India briefly attempted to use the language of humanitarian logic in the 1971 war in East Pakistan, which actually saw Pakistani forces systematically kill intellectuals along with 300,000 others. Russia employed the norms of Kosovo in its campaign against Georgia. It matters not whether they will “get away” with portraying future unilateral interventions as true uses of R2P so long as they can sway their populace into believing they are acting legitimately and can achieve fait accompli.

The other, truly potent danger of this new set of norms is that it will ultimately increase the enmity between great powers. Contrary to Slaughter’s assertion, this was not the combined moral will of the international community. It was the moral will of some members, the strategic interests of a few, and the acquiescence of a few which would rather pick their battles, and who are now opposing the emergence of such a consensus later.

Because, after all, consensus does not spontaneously emerge from the objective identification of something as a moral wrong demanding of the use of R2P. It certainly did not in Libya. It emerged in a painstaking and willful process of negotiations among the great powers and regional powers, in dialogue with certain members of the local opposition. The spontaneous and objective recognition of a violation of R2P is inherently the product of decisions, and the great powers get to decide. This may not have been the intention of activists who sought to create the code of R2P. Their ideal would be a purely autonomous, positivistic institutional process. This does not occur in states, and it does not occur in the international arena either.

This faith in the ability of an ideologically diverse and geopolitically pluralistic international order to reach an intersubjective agreement on the decision to institute an international “state of exception” and intervene in an offending state is likely false. Libya is still an intervention because it was an exceptional act in the international system. Slaughter would like it to be portrayed as something occurring in a different category of enforcement of responsibilities and obligations, but since the responsibilities and obligations can only be made concrete through sovereign decisions in the specific context of the incident, it is still an exceptional rupture. The dangerous part, though, is that it seeks to normalize this exception as a routine element of the international system.

This worries me for two reasons. One, this statement is false:

doesn’t it make more sense to say that the citizens of many nations, as represented by their governments, are responding to a call for help from the citizens of a nation unable to compel their government to perform its most basic function?

This was not a decision by citizens. It was a decision by sovereign powers. The governments of NATO and the Arab states initiated responses, but there was no pretext of seeking authorization beforehand from legislators by most of these countries until long after fighting had begun, and in the United States, there was a denial that anything needed to be authorized at all. Because R2P has its origins in activist groups which see themselves as these citizens of the world, they may conceive of intervention in such a way, but Libya was not a case of the citizenry helping out another citizenry. So already we see, on the domestic scale, the potential for R2P to subvert the norms of democratic representation in the responding countries, as it seeks a response where urgency trumps legitimacy at home.

The second dangerous element is that on the international scale, the potential for creating serious enmity among the great powers. The importance of consensus belies the reality of how consensus is formed, not by automatic recognition but by a careful negotiation of interests and calculation of threats. Yet the more we choose, falsely, to view R2P as simply a norm which automatically initiates a series of actions to enforce itself, the more tension we are likely to provoke when this imagined process hits against the friction of world politics as they actually are. While I have predicted that military limitations by US allies in power projection and the increasing ability of countries to deny the US ability to unilaterally project power itself will make the implementation of R2P unlikely beyond Africa or certain parts of the Middle East, even the attempts to apply it in the backyard of China or Russia could seriously destabilize the international system. For the US to seek to implement a norm which in theory only a UNSC veto prevents from being employed against China in that country’s backyard would be a serious escalation of tensions and in utter denial of the type of sovereign, qualified space China is seeking to create in its own neighborhood.

R2P is not a plot by great powers. But it is a radical denial of the historic purpose of sovereignty, which was not to protect societies from foreign states, but to protect society from itself. But rather than empowering a global society, it will empower the great powers of the international system, along with those societies whose appeals suit their perceived interests. It is built on a fundamentally untenable illusion of consensus among great powers which will not endure a crisis in a more strategically meaningful area of the world. Should activists succeed in convincing great powers that societies of affected states can legitimize the actions of intervening states, and jus ad bello trump the need for the impossible-to-enforce consensus, the results will seriously challenge the basis of amicable great power relations in the first place.