Changing concepts of state sovereignty.

Author:Philpott, Daniel
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 9:00 a.m., Saturday, March 28, by its moderator, Oona Hathaway of Yale Law School, who introduced the panelists: Rosa Brooks of Georgetown University Law Center; Daniel Philpott of the University of Notre Dame; and Ruti Teitel of New York Law School. Judge Rosalyn Higgins, Former President of the International Court of Justice, participated as a commentator. *

INTRODUCTORY REMARKS

In recent years, the international community has been increasingly willing to recognize human rights as a limit to unfettered state sovereignty and to use peacekeepers in cases of conflict. This panel was gathered to discuss these and other challenges to Westphalian state sovereignty. The panel also examined the complex and evolving interplay between state sovereignty and international legal rights and obligations.

Professor Daniel Philpott placed modern trends that circumscribe sovereignty--such as humanitarian intervention and the International Criminal Court--into historical perspective by making a comparison to the period of history prior to the Peace of Westphalia. That was a time in which sovereignty was challenged both by the deep pluralism of religious wars and by philosophers, including Grotius and Gentili, who wanted to unite Europe around common norms and ideals. And yet state sovereignty prevailed. He argues that this historical perspective helps us better understand modern challenges to state sovereignty. In the years since the end of the Cold War, state sovereignty is again being pried loose by several trends: the resurgence of religion alongside changes in international law, such as the emergence of humanitarian intervention, the "responsibility to protect" doctrine, and the International Criminal Court ("ICC"). Professor Philpott will explore the challenge of creating global consensus in light of these changes.

Professor Ruti Teitel's remarks focused on recent situations in which the tensions and fault lines in traditional concepts of sovereignty became apparent. The U.S. intervention in Kosovo, for example, was viewed by most in the international community as illegal but legitimate. Kofi Annan aimed at closing that gap between legitimacy and legality, in part through development of the norm of the "responsibility to protect." Similarly, the recent indictment of sitting President Al Bashir in Sudan by the ICC--even though Sudan has not ratified the Rome Treaty--illustrates a greater commitment to human rights norms in the face of conflicting state sovereignty. Professor Teitel seeks to place the logic of these events and the changing concepts of state sovereignty that they evince into the broader transformation of international legal understanding that she calls "humanity's law."

Professor Rosa Brooks examined the convergence between sovereignty-limiting theories advocated for humanitarian reasons and sovereignty-limiting theories advocated for security reasons. She discussed, in particular, the responsibility to protect discourse, as well as the discourse on preemptive self-defense and anti-terrorism (of which predator drone attacks and claimed U.S. forays into Syrian territory from inside Iraq are two examples). She explored the areas of convergence between the humanitarian and security discourses, asking whether they suggest an emerging understanding of sovereignty that is radically different than anything we have seen before the 1990s. Could it be, she asks, that sovereignty is coming to be seen as a privilege, not a right? If states fail to serve the functions demanded of them--if they fail, for example, to protect the basic human rights of their own citizens or to prevent terrorist organizations from operating within their borders--then may other states step in, perhaps even without the blessing of international institutions?

Finally, Judge Rosalyn Higgins offered her reactions to the panelists' comments, drawing from her own experiences as a Judge and President of the International Court of Justice and Professor of International Law, as well as her extensive experience as a practitioner of international law.

* Rosa Brooks and Rosalyn Higgins did not submit remarks for the Proceedings.

By Oona A. Hathaway, Professor of International Law, Yale Law School.

REMARKS BY DANIEL PHILPOTT *

We live in an era in which norms of sovereignty are in flux. During the Cold War, norms that would limit state sovereignty had difficulty attaining consensus. Human rights gained strength through international legal documents, but those very same documents pointedly stressed the subordinating sanctity of sovereignty. Even cases of humanitarian intervention in sites of massive suffering could not gain United Nations approval. Thus continued what the Peace of Westphalia inaugurated--a system of absolute sovereign states. Since the Cold War, though, the vault of the sovereign state has been pried open by norms and authorities that circumscribe sovereignty: intervention, the World Trade Organization's ("WTO) judgment powers, the ICC, and an augmented European Union ("EU").

The tightness of the seal around the sovereign state resulted from the pressures of Westphalia's arrival. Westphalia settled 130 years of religious war, the last phase of which wiped out as much as a third of the German population. We may have forgotten this carnage. But remembrance may be worrisome. If today's erosion of sovereignty parallels early modern Europe's development of it, might not the same holy chaos skulk behind the changes? It seems unlikely at first: intervention, the WTO, the ICC, and the EU do not pose one religion against another. Yet, religion and culture are neither irrelevant nor irenic in today's world; conflict over...

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