Sovereignty: Organized Hypocrisy.

• Author: Goldsmith, Jack
• Position: Review

SOVEREIGNTY: ORGANIZED HYPOCRISY. By Stephen D. Krasner.([dagger]) Princeton: Princeton University Press 1999. 264 pp. $16.95.

Two pieces of conventional wisdom dominate the international law community's views about national sovereignty. The first is that national sovereignty is an important legal principle. It defines nationhood. It underlies international law's requirement of state consent to treaties and customary international law. And it explains why nations respect territorial borders, confer and deny recognition, and honor diplomatic immunity. In these and many other contexts, national sovereignty is among the most robust of international legal principles, exercising a powerful influence on national behaviors.

The second piece of conventional wisdom is that legal principles of sovereignty, though efficacious, have changed in important respects since World War II. During the nineteenth- and first half of the twentieth-century, a nation's power within its territory was thought to be "exclusive and absolute."(1) National sovereignty so conceived appears to have diminished significantly in the past half century as a result of economic globalization, transportation and communications advances, the rise of nongovernmental organizations (NGOs), and the spread of international human rights law. NATO's bombing of Yugoslavia, the extraordinary increase in the velocity of capital and information flows, Great Britain's denial of General Pinochet's immunity claims, conditional bailouts by the International Monetary Fund (IMF), and the United Nations' occupation of East Timor, among many other things, appear to confirm U.N. Secretary General Kofi Annan's assertion that "[s]tate sovereignty, in its most basic sense, is being redefined ... by the forces of globalisation and international co-operation."(2)

Stephen Krasner is an international relations (IR) theorist in Stanford University's political science department, and his new book Sovereignty: Organized Hypocrisy [hereinafter Sovereignty] is written for political scientists. But Krasner's book should be studied by international lawyers, for it challenges both strands of lawyers' conventional wisdom about sovereignty's role in international affairs. First, Krasner argues against the view that legal principles of national sovereignty have weakened in the late twentieth-century. He does this not by showing the resilience of sovereignty in modern times, but rather by showing sovereignty's extraordinary frailty as a legal principle during the past two hundred years. On subjects ranging from human rights to international investment to domestic constitutional structure, Krasner argues that international law principles of sovereignty were never powerful checks on national behavior, and were frequently violated when nations found it in their achievable interests to do so. He does not deny that the national sovereignty has been an important part of international law discourse during the last two centuries. But he insists that it has never been much of a check on the interests of powerful nations. There has always been an enormous gap between norms of sovereignty and the behavior of nations.

This argument raises the important puzzle of why international law principles of sovereignty, though frequently violated, have persisted as a recognized norm for hundreds of years. International lawyers tend to ignore or decry the gap between international law norms and the actual behavior of nations. But Krasner rightly views this phenomenon as something to be explained, not ignored or decried. The second major aim of Sovereignty is to do just this. Drawing on the work of Nils Brunsson, Krasner labels the gap between behavior and talk "organized hypocrisy."(3) Krasner's explanation for organized hypocrisy is largely an instrumental one: National leaders benefit both from the general persistence of sovereignty norms in the international legal system, and from their violation when it is in their achievable interest to do so. Such organized hypocrisy is possible because the international system is characterized by power asymmetries among nations, the existence of multiple and conflicting norms on the international stage, the absence of authoritative structures to resolve these conflicts, and the fact that rulers' actions are driven by domestic constituency interests.

This explanation for the behaviors associated with sovereignty challenges lawyers' views about how international law works. Lawyers tend to think (or assume) that, as a rule of international law, sovereignty exercises an influence on national behavior that cannot be captured in instrumental terms. International lawyers are optimistic about the independent efficacy of international law because they give pride of place to the rhetoric of sovereignty in international affairs, and because their empirical investigations tend to focus on behaviors consistent with (rather than contrary to) sovereignty norms. Krasner attempts to turn the lawyer's view on its head by providing an instrumental explanation for both the existence of sovereignty norms and the behaviors that constitute compliance with and violation of these norms. He argues that sovereignty as a legal principle does little independent work; it is largely epiphenomenal to the power of nations and the interests of national leaders.

This review of Sovereignty proceeds in four steps. Parts I and II situate its claims in the IR literature. Part III discusses what international lawyers should learn from Sovereignty, and evaluates the book's strengths and weaknesses. Part IV considers the ostensible turn to IR theory within international law scholarship. It sketches the obstacles to the use of IR theory by international lawyers, and suggests ways to circumvent these obstacles.

1. THE IR BACKGROUND

   Krasner seeks to understand "what sovereign statehood has meant in actual practice...."(4) He focuses primarily on two concepts of sovereignty: Westphalian sovereignty, or political organization based on "the exclusion of external actors from domestic authority structures" within a given territory;(5) and international legal sovereignty, or "the practices associated with mutual recognition, usually between territorial entities that have formal juridical independence."(6) These concepts should be familiar to international lawyers. Westphalian sovereignty roughly corresponds to the international law principle of territorial sovereignty. This principle underlies, among other things, the U.N. Charter's prohibition on the use of force, customary international law limits on extraterritorial jurisdiction, and international law governing territorial borders. International legal sovereignty roughly corresponds to the international law principle of sovereign equality. This principle underlies, among other things, international law governing state recognition and diplomatic immunity.

   Krasner distinguishes these concepts of sovereignty from two others: domestic sovereignty, which is "the formal organization of political authority within the state and the ability of public authorities to exercise effective control within the borders of their own polity"; and interdependence sovereignty, which is "the ability of public authorities to regulate the flow of information, ideas, goods, people, pollutants, or capital across the borders of their state."(7) Krasner insists on the careful delineation of all four concepts of sovereignty, which are logically independent in the sense that one or two might diminish in any given circumstance while the others persist.(8) But he devotes little attention to domestic and interdependence sovereignty, which focus on state control rather than state authority.(9) This is probably because, as Janice Thomson has argued, "[s]tate control has waxed and waned enormously over time, regions, and issue-areas while the state's claim to ultimate political authority has persisted for more than three centuries."(10) Krasner thus focuses on Westphalian and international legal sovereignty because these aspects of sovereignty are thought to be the defining and persistent features of the international system. Not by accident, they are also (in contrast to domestic and interdependence sovereignty) central concepts of international law.

   To understand Krasner's analysis of Westphalian and international legal sovereignty, we must understand the debates within IR theory out of which these arguments grow. Many theories compete within IR theory to explain various international behaviors. Generalizing enormously, two basic perspectives dominate: instrumentalism and constructivism.(11)

   The instrumental perspective usually begins from the premise that nations are the principle unit of analysis in international affairs. It further assumes that nations operate in anarchy, a term that describes the absence of any higher central political authority. Finally, it assumes that in anarchy, nations follow a logic of consequences.(12) That is, nations act rationally to maximize their interests. The instrumental perspective takes these actors' interests as given, and makes no attempt to explain their origin or content.

   Instrumental approaches come in what might be called optimistic and pessimistic stripes. The pessimists are realists.(13) They think that a nation's primary interest is security, and they view international behaviors largely as a function of national power. Realists are skeptical about cooperation among nations because they think nations, as security maximizers, are concerned about relative rather than absolute gains. They believe most international institutions reflect distributions of national power, and that the little cooperation we see is fragile. Institutionalists, by contrast, are more optimistic. They acknowledge that nations have partially conflicting interests, and they model international life as a multilateral prisoner's dilemma or some version of a coordination...