Sovereignty as responsibility

The first task of this article, then, is to provide an overview of what sovereignty means for advocates of the RtoP. Proponents of this position can generally be classified as either liberal internationalists or cosmopolitans, in that the former believe in the possibility of peaceful and lawful relations between liberal-democratic states and the latter believe in transformations of governance toward greater democratisation and globalisation. Unlike those who have argued that sovereignty needs to be dispensed with altogether,Footnote ⁸ RtoP advocates seek to establish a via media, which allows states to retain their sovereign status, but with conditions attached.

In the literature on the RtoP, Francis Deng is usually credited as being at the forefront of efforts to redefine sovereignty in a way that would be more compatible with the protection of human beings from abuse from their own governments.Footnote ⁹ In a 1996 work on conflict management in Africa, Deng and his co-authors argued that ‘sovereignty carries with it certain responsibilities for which governments must be held accountable. And they are accountable not only to their national constituencies but ultimately to the international community.’Footnote ¹⁰ The essence of the idea lies in the suggestion that the sovereignty of states should no longer be understood as the unimpeachable or absolute control of a given territory by its government. All states, the argument runs, now have responsibilities to protect and promote the rights of their citizenry and sovereignty is (at least to some extent) ceded if a state fails to act according to these responsibilities.

This set of responsibilities, which is enforceable by the international community, is ‘normatively grounded in the fundamental values of human dignity’.Footnote ¹¹ Drawing upon the post-World War II successes in the promotion of universal human rights as well as the ‘evolution of increasing demands for democratic values, institutions, and practices’, Deng argues that increased interference in the affairs of other states in the post-Cold War world reflects ‘the growing resolve of the international community to override sovereignty in support of international human rights and humanitarian intervention’.Footnote ¹²

Such arguments have since remained at the centre of efforts to bring about a normative transformation of state sovereignty to allow greater intervention in the domestic crises of states. The influence gained by Deng's notion of sovereignty as responsibility was further reflected in Kofi Annan's 1999 speech on what he termed ‘two concepts of sovereignty’.Footnote ¹³ Speaking in the wake of the NATO intervention in Kosovo and the Australian-led intervention in East Timor, Annan pursued the idea of ‘individual sovereignty’ as a foundation for the amelioration of the absolute sovereignty of states, arguing that:

Here again we find an understanding of individual rights being converted into a collective sovereignty at the global level, with the consequence that state sovereignty is made conditional through redefinition.

The most definitive and influential account of these moves toward ‘sovereignty as responsibility’ came with the publication of the report of the International Commission on Intervention and State Sovereignty (ICISS) in November 2001. In an attempt to undercut some of the critics of the RtoP movement, the report made it clear that it was ‘not making the world safe for big powers, or trampling over the sovereign rights of small ones’.Footnote ¹⁵ As we shall see below, however, this argument is highly debatable.

Like Deng, the authors of the report chose to anchor their understanding of sovereignty in normative terms. Recognising that advancing the RtoP agenda would require the development of consensus, the report urges a change in language in order to soothe concerns about neo-imperialism that had been expressed by some developing nations and some academic critics.Footnote ¹⁶ Hence, the ‘responsibility to protect’ was put forward as an alternative to using ‘right to intervene’ on the following grounds:

The question that this raises is whether a change in language represents any kind of substantial change that would genuinely make states think differently about their sovereignty. In other words, does ‘speaking differently’ about sovereignty change sovereignty in any useful way? I will leave this issue aside for the moment and return to it later in the article.

The idea of ‘sovereignty as responsibility’ advanced by the commission is described as having three key elements:

Like Deng and Annan, the ICISS report founds the notion of ‘sovereignty as responsibility’ upon ‘the ever-increasing impact of international human rights norms, and the increasing impact in international discourse of the concept of human security’Footnote ¹⁹ as well as ‘the notion of universal justice – justice without borders’.Footnote ²⁰ Importantly, UN membership is seen in social contractarian terms as presenting states with a bundle of rights and ‘responsibilities of membership’, which appears to give the UN Charter and associated documents quasi-constitutional status. Despite this, however, the report insists that this does not constitute a ‘transfer or dilution of state sovereignty’, which would only be affected if a state failed to fulfil its sovereign responsibilities.Footnote ²¹

The unanimous acceptance of RtoP principles at the 2005 UN World Summit was initially heralded by Kofi Annan as a ‘precious’ commitment,Footnote ²² insofar as it represented a movement towards his vision of a world based on the respect and protection of individual rights above state rights.Footnote ²³ Despite the rejection of specific criteria for interventions by P5 nations, the closing off of the possibility for interventions not authorised by the UNSC, and the refusal to accept an explicit ‘obligation’ to intervene in crisis situations,Footnote ²⁴ the inclusion of RtoP principles in the outcomes document clearly shows how prominent the ideas have become in a relatively short period of time. Nevertheless, significant backsliding by a number of nations in the years since 2005 have led Evans to remark that ‘it never takes much more than a few days around the corridors and meeting rooms of the UN to learn that absolutely nothing there is beyond argument’.Footnote ²⁵ Hampered by ongoing debates about the humanitarian credentials of the US invasion of Iraq in 2003, the perceived failure to act effectively to stop the conflict in Darfur, and the complexities of deploying force to remove Colonel Gaddafi in Libya,Footnote ²⁶ the RtoP has reached a very difficult point in its development.

The question to be approached in the remainder of this article is whether a classical Realist understanding of sovereignty can shed further light on the practical and conceptual difficulties of the RtoP. As I will argue below, there is a distinct failure to account for the importance of material power in the formulation of ‘sovereignty as responsibility’ that is derived from an excess of faith in the transformation of norms through the transformation of discourse. Nevertheless, we can also find glimmers of recognition of the problem of power in the RtoP literature, including Deng's foundational argument on sovereignty as responsibility. Here, we find the admission that:

This argument touches upon issues of power, judgment and enforcement, all of which are central to de facto theories of sovereignty. The idea that the norms of responsibility require the presence of a ‘higher power’ is, I will argue, best understood as a call for the institution of a new global sovereign, along with a caveat that the new sovereign must itself be limited. But is this possible? Can a sovereign be limited and still remain sovereign? For those who believe that sovereignty is an empty signifier that can be manipulated to mean different things at different times, there is no inconsistency or theoretical difficulty in conceiving of a limited sovereign. For those of the de facto view, however, the story is very different. It is to this argument that I now turn my attention.

Sovereignty as irresponsibility?

In contrast to the normative understanding of sovereignty proffered by RtoP advocates, Realist scholars of International Relations have preferred an empirical definition, focusing less on shared rules and understandings and more on material power. It is clear that the ‘traditional’ notions of state sovereignty that these theorists proposed have, for proponents of the RtoP, been at the heart of the kinds of human rights abuses that they seek to overcome. In international law and International Relations theory, the finger is generally pointed at Realism as the source of this problem, insofar as Realists have consistently criticised the moral universalism of liberal international law and theory.Footnote ²⁸

It is important to note at this point that the sovereignty to be ‘overridden’ by the new formulation is that which, under international law, forbids intervention by outside states in the internal affairs of other states. This rule, encapsulated in Article 2 of the UN Charter, is usually associated with the Peace of Westphalia, which in turn is considered to be the foundation of a Realist or ‘traditional’ conception of state sovereignty.Footnote ²⁹ As I will explain further below, this means that the debate over sovereignty and (non-)intervention takes place almost entirely within de jure parameters, focusing on issues of acceptable, legal or legitimate behaviour in international society. It is wrong to assume, therefore, that tackling the question of the legal or moral status of the norm of non-intervention necessarily addresses the problem of de facto sovereignty. This confusion arises due to the inappropriate understanding of non-intervention as a corollary of sovereignty and from the inappropriate conflation of the ‘Westphalian’ state with a Realist or empirical theory of sovereignty.Footnote ³⁰ The Peace of Westphalia, like the UN Charter, was founded upon an agreed set of principles that provided for the delimitation of territories and the establishment of rules of conduct between them. De facto sovereignty, as we shall see below, is an entirely different measure, in which the ‘rights’ of states are derived from their capacities to enforce rather than from an actual or perceived set of rules established amongst other states. Such an understanding of sovereignty has a long heritage in political theory and finds a clear place in the Realist International Relations theory of Hans Morgenthau. I will look more closely at Morgenthau's theory below, but will begin with a brief overview of two key thinkers in the de facto sovereignty tradition, Thomas Hobbes and Carl Schmitt. Despite the prominence and influence of these figures in IR theory, there appear to have been few, if any, serious attempts to understand whether the classical Realist understanding of sovereignty can add anything useful to the debates over the RtoP and particularly to the idea of ‘sovereignty as responsibility’.

It is perhaps inevitable in any study of ‘traditional’ forms of sovereignty that Thomas Hobbes will make an appearance. As Leo Strauss points out in History and Natural Right, ‘there is a term that expresses in the most condensed form the result of the changes which Hobbes has effected. That term is “power”.’Footnote ³¹ It is unsurprising, then, that a Hobbesian understanding of sovereignty lies at the heart of a power-focused Realist International Relations theory. In its most simple terms, Hobbes defines sovereignty as unlimited power. To locate a sovereign power, we need to look for those who are unrestrained in their action. For Hobbes, such a power always exists, as any attempts to curtail unlimited power can only be successful through the institution of an even greater power. As he states in Leviathan, ‘whosoever thinking sovereign power too great, will seek to make it less; must subject himself, to the Power, that can limit it; that is to say, to a greater’.Footnote ³² The same definition was put forward in De Cive, where Hobbes claims:

Jean Hampton, whilst arguing that Hobbes's definition of sovereignty is ‘badly wrong’,Footnote ³⁴ nevertheless provides a helpful summary of what she describes as a ‘regress model’ of sovereignty, condensing Hobbes's theory into five key points:

As Kinch Hoekstra points out, this model of sovereignty implies that law and morality follow the establishment of sovereign power, an inversion of the RtoP understanding of sovereignty where power follows the transformation of moral norms. To put it in other terms, de jure sovereignty is established within the confines of de facto sovereignty. Thus, for many interpreters of Hobbes, Hoekstra argues, ‘sovereign right follows from the actual possession of power, and … there is a mutual relation between protection and obedience.’Footnote ³⁶

The second element of this formulation is of some interest, insofar as it implies a degree of ‘responsibility’ between sovereign and subject, with the sovereign exercising their power to provide protection for and uphold the rights of the subjects in exchange for their obedience. This has led some theorists to argue that Hobbes was in fact a ‘consent theorist’ who saw the consent of the people as a key principle of legitimacy for a sovereign authority.Footnote ³⁷ This, however, begins a problematic move away from Hobbes's concern with power as the essence of sovereignty that misunderstands the tight bonds that exist between sovereignty and its corollaries, one of which is obedience. As Hoekstra puts it, ‘might implies consent, and consent confers right, therefore might implies right’.Footnote ³⁸ The fear of violent death, central to Hobbes' understanding of the state of nature and the desire to leave it, will naturally drive self-interested individuals to obey the greatest power in their midst, spontaneously offering their obedience in exchange for the protection of the powerful. Importantly, this allegiance shifts in accordance with changes in sovereignty, as ‘the obligations of subjection shift with de facto power’.Footnote ³⁹ Sovereignty, in other words, is not judged by abstract principles of legitimacy and is not statically attached to the demarcated territories of the modern state.Footnote ⁴⁰

In determining the holder of sovereign power from a Hobbesian perspective, it is clear that the ‘extreme case’ is of a high importance.Footnote ⁴¹ This emphasis on extremes and their relation to sovereignty finds perhaps its clearest expression in the work of Carl Schmitt in the classic formulation ‘sovereign is he who decides upon the exception’. This essentially entails a power to decide ‘whether there is an extreme emergency as well as what should be done to counter it’.Footnote ⁴² Here again we find the sovereign portrayed as the unlimited power, unrestrained by law and capable of suspending the law in emergency situations. As Mika Luoma-aho explains, Schmitt maintained that ‘political life cannot be regulated by legal norms, because societies encounter crises that must be resolved by the use of political authority’ and consequently ‘the nature of the state that emerged as a result of Schmitt's polemics against normativism was decisionist: the will of the sovereign stands above the law of the land’.Footnote ⁴³ In this respect, Schmitt provides a clear echo of the Hobbesian theory of sovereignty and in doing so, offers a definition of sovereignty in which the holder maintains ultimate (even if not absolute in the sense of controlling all things at all times) authority over a given territory and population.

Perhaps more importantly, Schmitt centralises the emergency in his definition of sovereignty. This move is vital as it provides a clear point of demarcation between ‘normal’ and crisis situations, where in the former we may expect to see the operation of more ‘normative’ expressions of sovereignty and in the latter more expressions of de facto power. As Schmitt directly puts it, ‘the norm is destroyed in the exception’.Footnote ⁴⁴ The importance of this distinction for the analysis of humanitarian crises and humanitarian intervention is even greater, as such situations are always times of crisis and will therefore inevitably and invariably involve issues of sovereignty of a de facto or decisionist nature. Where there is no conflict between the abusive government and outside powers over steps to be taken to alleviate the domestic crisis, there is no breach of sovereignty. It is only at that point that outside powers take ‘responsibility’ for the enforcement of policies contrary to the will of the existing sovereign that the problem of sovereignty and non-intervention comes into play. All extreme humanitarian crises will, in other words, represent emergency situations requiring the threat or use of force for resolution. In the case of intervention, therefore, it is not a matter of deciding which definition of sovereignty we prefer. The existence of severe abuses of human rights by a sovereign is an illustration of de facto power in itself and outsiders must then decide whether they will use a greater force to end the violence, thus establishing themselves as the new sovereigns of the territory in question. The interventionist moment, from this perspective, may be born out of a normative sense of responsibility for common humanity but can in itself be conceived as an ‘irresponsible’ moment in that it depends upon the use of force, unrestrained by any ‘higher power’, in order to achieve final resolution. It depends, in Schmitt's terms, on decision upon the exception. This then raises questions about the authority to carry out interventions for humanitarian purposes that are central to the critique to be developed below.

At this point, however, we turn to Hans Morgenthau's classical Realist theory of sovereignty, which draws upon the power-centric approaches of Hobbes and Schmitt and seeks to understand their relevance in relations between states. The basic contours of Morgenthau's understanding of sovereignty can be found in a chapter on the subject in Politics Among Nations. Here, we find the notion of sovereignty within the modern state system spelled out in fairly clear terms:

It is from this definition of sovereignty as ‘supreme authority’ over a given territory that the related notion of anarchy at the international level is derived. This is particularly important for the Realist understanding of international law, which for Morgenthau cannot be anything more than a ‘weak and decentralized’ system of law within the modern state system. While this does not preclude the possibility of the existence of international law, it does mean that it is of a starkly different character to laws enacted and enforced within sovereign states. Morgenthau argues, therefore, that ‘sovereignty is incompatible only with a strong and effective, because centralised, system of international law. It is not at all inconsistent with a decentralized, and hence weak and ineffective, international legal order.’Footnote ⁴⁶ In practice, this means that ‘a nation can take upon itself any quantity of legal restraints and still remain sovereign, provided those legal restraints do not affect its quality as the supreme lawgiving and law enforcing authority’.Footnote ⁴⁷

In this critique of the strength of international law we can already begin to see the incompatibilities between Realist theory and the liberal or cosmopolitan theories that support the RtoP. The redefinition of sovereignty as responsibility is precisely an attempt to break the constraints posed by state sovereignty insofar as it limits the possibilities for law enforcement on the international level. Indeed, what is evident in the idea of ‘sovereignty as responsibility’ is the belief that sovereignty can and should be divided, ‘unbundled’,Footnote ⁴⁸ ‘disaggregated’,Footnote ⁴⁹ or shared between states and the ‘international community’.Footnote ⁵⁰ It is on this point – the indivisibility of sovereignty – that Morgenthau is particularly scathing:

In making his case against ‘divided’ sovereignty, the true test of sovereignty from the Realist perspective becomes more evident.Footnote ⁵² Following Schmitt, Morgenthau effectively defines sovereignty in ‘decisionist’ terms.Footnote ⁵³ That is, the holder of sovereign power becomes evident in crisis situations as the maker of the final decision, through force or otherwise. In Morgenthau's terms:

It is the ability to exercise decisive force when required, therefore, that marks the sovereign power. William Scheuerman, who is largely sympathetic to Morgenthau's Realist ethics, has suggested that this decisionist approach, like that put forward by Schmitt, ‘suffers from a misleadingly one-sided focus on the emergency or crisis’ and that ‘effective state action is by no means inconsistent with any of a host of complex forms of complex or differentiated sovereignty potentially realizable at the transnational level’.Footnote ⁵⁵ Yet, as for Hobbes, it is precisely the capacity to resolve disputes between various elements of a political community that marks the status of the sovereign and it is precisely in the moment of crisis that such a capacity is most obviously exercised. Thus, while de jure theories of sovereignty find meaning for the term in shared understandings, practices, legitimacy and recognition, de facto theories find sovereignty in the opposite: at points of crisis, mutual misunderstanding, lack of recognition and, most importantly, in the (forceful) resolution of these intense political conflicts. As stated above, the humanitarian crisis and coercive intervention to correct it provides an ideal example of this understanding of sovereignty.

This understanding of sovereignty has clear repercussions for our understanding of international law, which is rendered in purely instrumental terms, as the pursuit of policy by other means.Footnote ⁵⁶ This leads to a critical understanding of the role of the UN and international law, which ‘were imagined as substitutes for power politics – while in fact they were simply new forums for it’.Footnote ⁵⁷ In short, Morgenthau's theory of International Relations stemmed from the belief that ‘what really mattered in relations among nations was not international law but international politics’.Footnote ⁵⁸ The primacy of politics over law in International Relations is illustrated by the fact that ‘the functioning of sanctions in international law is … of the simplest kind: everyone defends his legal position against everyone else, and reprisals serve as sanction’.Footnote ⁵⁹ For Morgenthau, following Hobbes, it was fear of the exercise of force that provided the true effect of law: ‘The fear of sanction was the psychological reality of norms that brought about conformity as the physical reality.’Footnote ⁶⁰ The development of an institution capable of bringing such sanction to bear on the whole world on a consistent and legalised basis is, therefore, impossible where more than one sovereign power exists, as:

Much of the ambivalence (or even outright hostility) toward this understanding of sovereignty – insofar as it stands against the possibility of law or, indeed, a generalised sense of ‘responsibility’ – stems from what Morgenthau regarded as the ‘depoliticizing’ effect of liberal legalism, the aim of which was to bring an end to the passions of human conflict and maintain order through the rule of law. Liberal theory has, in this sense, served to disguise the continued existence of a sovereign power that is not itself subject to the law that is made and enforced in its name. Notions of ‘popular sovereignty’, which claim to distribute power amongst the populace within a given territory, are the prime example of liberal moves toward obscuring the exercise of effective power. On this point it is worth quoting Morgenthau's argument from Politics Among Nations at some length:

The ‘invisibility’ of sovereignty in democratic states is significant in that it is a problem shared with the RtoP. As discussed in the preceding section, the RtoP rests heavily on the residual sovereignty of the ‘international community’, which itself is a term lacking in form and clarity. Following Morgenthau's implicit critique of the notion of ‘popular sovereignty’, on the grounds that ‘the people as a whole … as such cannot act’, we may ask an analogous question of the RtoP: How can the ‘international community’ act any more coherently than ‘the people’? The suggestion here is that the use of the term ‘international community’ masks the fact that the RtoP depends upon an exercise of sovereign power by a state or group of states with or without approval by the UNSC. I will return to this problem below.

A further important consequence of understanding sovereignty in this way is the recognition that sovereignty does not essentially attach itself to state institutions. Sovereign power, as de facto power, can be identified in any institution that has the power to enforce its will in a crisis situation. This is important as it undermines some of the more crude critiques of Realism that suggest that the modern state, from the Realist perspective, is the be all and end all of social organisation. It must be recognised, on the contrary, that Morgenthau is seeking to describe an existing state of affairs – what he calls the ‘modern state system’ – not something that is eternal or unchangeable. Sovereignty could, therefore, be displaced to a centralised global power, but this could not be compatible with the continuing sovereignty of nation-states. Sovereignty will, from Morgenthau's perspective, always reside somewhere and it will always assert itself in situations of crisis. Sovereignty, in short, will not disappear, even in an idealised future world state.Footnote ⁶³

The fact that there has been more demand for interventions on humanitarian grounds since the end of the Cold War does not, from the Realist perspective, indicate a dilution or transformation of the meaning of sovereignty. Rather, it demonstrates the continued exercise of sovereign power. As much as ever, sovereign states – whether individually or in groups – are deciding when and how to intervene in crisis situations in other states without any consistent limit or restraint being imposed through the UN Security Council or any other international organisation. The de jure norms of state sovereignty may be changing, but its de facto essence is not. Powerful states retain the power of decision on the issue of intervention and weak states continue to claim state sovereignty as their last line of defence. De facto sovereignty, between these competing claims, will be revealed through the exercise of decisive power.

The persistence of irresponsible sovereignty in the RtoP

The preceding discussion has sought to clarify the primary differences between the de jure and de facto definitions of sovereignty. It is clear from the discussion of the RtoP that a purely normative (de jure) understanding of sovereignty lies at its heart and de facto power is largely absent. The question that must now be considered is whether a critique of the RtoP from a de facto sovereignty perspective can shed any light on the difficulties that have been encountered in the attempt to institutionalise the responsibility to protect norm. There are, I believe, two keys areas that are susceptible to a critique derived from the de facto definition of sovereignty as outlined above, both of which appear as elements in a modified just war theory at the heart of the RtoP. The first concerns the establishment of principles of ‘right authority’ for taking decisions on when interventions for human protection purposes are merited and the second relates to the condition that any such intervention must have reasonable ‘prospects of success’ or meet a utilitarian standard based on a careful assessment of the ‘balance of consequences’. I will examine each of these in turn.