Unrepentant: Sovereignty RIP

Warm thanks to the symposiasts and thanks again to EJIL: Talk! for opening its pages to an outsider to international law. It’s gratifying to garner some approval of what I did, far more gratifying to have people take it seriously.

It would be boring, litigious, and anyway impossible in this space to take up each and every criticism. So instead I’ll review the chief criticisms and sketch my largely unrepentant reactions. On offer are the views that sovereignty is worse than I say; that it’s about as bad as I say, for the reasons I say; and that while what I say is true, sovereignty still has emancipatory or other important work to do—or that it would make no difference whether we retired it or not.

Sovereignty, Professor Gathii reminds us, has done lots of nasty work that I merely touch on. (I have no interest in quibbling defensively about how much attention I give that nasty work.) It has played a nefarious role in imperialism and colonialism; as I might say but he does not, it has whitewashed racism. I’m (un)happy to agree (if you see what I mean). I’ve written at considerable length elsewhere about the role that contempt for women, workers, Jews, and blacks plays in conservative political thought—in democratic thought, too (see the second part of my Poisoning the Minds of the Lower Orders). And I quite agree as a general matter that there should not be separate communities of scholars investigating such matters. So why didn’t I do more here?

Partly for chronological reasons. Yes, the slave trade was already underway as the wars of religion heated up, and yes, you can find people trying to make sense of what Europeans were doing to Africans. But my sense is that sovereignty starts doing more important work in the oft-racialized domination of one country by another only much later. My sense, too, is that only much later does it become important to shred the claims of “backward” people and regions to sovereignty, and only much later would the concept itself become racialized. British political actors, for instance, pounded the table about sovereignty and rejected the claims of American colonists to independence while cheerfully agreeing that those Americans—the ones they bothered acknowledging in this context, ironically more or less the same group as the ones pressing the case for independence: not enslaved blacks and not native Americans—were white. Were struggles about the East India Company wholly independent? No, but independent enough. That’s not what I thought about conservative and democratic thought, where from the beginning claims about what it meant to be a subject or a citizen were importantly bound up with misogyny, social class, anti-Semitism, and racism. So partly for chronological reasons, but partly also for the difference between how concepts themselves might be penetrated by racism, colonialism, and the like, as against tools that (like hammers) can be picked up to do racist and imperialist work.

But we live after (well, kind of during, too) imperialism, and Professor Krieger suggests that sovereignty can do emancipatory work for the global South or the third world. Maybe. And—any port in a storm—partly I think, well, if countries getting screwed by hegemonic powers or the IMF or whatever else could advance their interests by reciting “you are getting very sleepy” and hypnotizing their opponents, they should go for it. But mostly I don’t think that. I think politics and law both go better when people don’t resort to incantations. And third-world actors have plenty of resources to assert their independence, equality, and full dignity in the community of nations, to denounce exploitation and contempt, without huffing and puffing about sovereignty. The same sensibilities are why I say in the book I’m happy to endorse the quest of Native Americans for dignity, equality, and better treatment, but stubborn about not wanting to think of tribes as sovereign. (As I note, famed activist and writer Vine Deloria didn’t swing for the fences on sovereignty, either.) Put differently, Krieger shares my sense that sovereignty obscures our grasp of our problems and possibilities. Well, so too in the ongoing disputes where she suggests it might be emancipatory.

Professor Walker, too, is willing to endorse my critique of what I dub the classic theory, but he thinks we need sovereignty to serve as the basic menu of traits states can enjoy, more generally to ground our arguments. I suspect there are some recondite issues about theory dividing us, so you can be relieved that my space is limited and I’ll be blunt. You can take state as a cluster concept, and if you like you can say sovereignty is the full list of powers that any given state might or might not make its own. But I don’t see how that makes sovereignty deep or prior or inescapable. When you look at photos of your extended family, you can make sense of family resemblance—lots of you have that funny bend in your nose, and a partly overlapping group have big ears that stick out, but no one has every characteristic feature—without needing any deep or prior picture of the ur-family member who has every such trait. That picture would in fact come after you thought about the resemblances. And you could easily live without it.

So too, I’m all about criticism and reason-giving, always, and—this vulgar pragmatism motors the book—relentlessly skeptical of “foundations.” Take Walker’s suggestion that we need sovereignty to undergird jurisdiction. If jurisdiction has “no foundation beyond itself,” he fears, we’re left with “linguistic fiat.” Well, no. We’re left with the thicket of reasons and arguments we now bring to bear in conflict and choice of law, in deciding just what authority the UK has and hasn’t devolved to Scotland, in border disputes. All those reasons and arguments can be criticized. None needs the slightest “grounding” or “support” or “foundation” from sovereignty.

I have much the same reaction to Professor Goldsmith’s suggestion that nothing would change if we stopped invoking sovereignty, and his puzzle about who I imagine as the audience for my argument. Start here: Goldsmith is emphatically wrong to claim that governments have “thoroughly repudiated” sovereignty. They talk about it constantly. To give one of a zillion instances, earlier this month President Trump announced a national emergency and imposed sanctions against anyone “directly engaged” in ICC efforts (or anyone who’d “materially assisted” them) to investigate US actions in Afghanistan: “These actions on the part of the ICC…threaten to infringe upon the sovereignty of the United States.” When states invoke sovereignty, much of what they say trades on the classic theory, not any suitably snazzy updated form without the contentious commitments I despise. Here, too, there are some vexing theory issues in the background: Goldsmith is right to conjure up “the relationship between ideas, rhetoric, and political action.” Here, too, I will be blunt.

Goldsmith doubts that Justice Kennedy’s insistence on American states’ sovereignty and the cosmic indignity of hauling them into federal court evinces anything about his commitments to the classic theory sovereignty. But for present purposes, I have no interest in trying to figure out what was going on in Kennedy’s head when he wrote Alden, nor more generally in figuring out what actually motivates people invested with enormous legal and political authority. Maybe they are unwittingly in the clutches of sovereignty; maybe it’s their considered view; maybe it pops out of their mouths or word-processors as an unthinking verbal spasm; maybe they know it’s dumb, but invoke it for shrewd strategic purposes. I don’t care. I’m interested in the uptake: in the responses of those who find that sort of talk powerful or anesthetizing. Sovereignty talk circulates in the world. You don’t have to search industriously to find trickles of it; we’re drowning in it. Overwhelmingly, it’s governments, not people, who claim sovereignty. That’s no arbitrary “stipulation” of mine, as Walker suggests. It’s a factual observation and you don’t need cynically squinting eagle eyes to observe it yourself.

I offer plenty of examples in the book. Here’s another. Not quite two years ago, UN High Commissioner for Human Rights Michelle Bachelet expressed concern about the million-some Uighurs who China has forcibly detained in Xinjiang. Here’s the response from the spokesman for China’s Foreign Ministry: “China urges the U.N. human rights high commissioner and office to scrupulously abide by the mission and principles of the U.N. charter, respect China’s sovereignty, fairly and objectively carry out its duties, and not listen to one-sided information.”

That invocation of sovereignty is supposed to do justificatory work. It trades on the idea that a government can subject its citizens to what we politely call re-education—never forget how much of our political vocabulary is weirdly sanitized, and how helpful that is for thugs—and can forbid even criticism because it enjoys sovereignty, because it is not accountable for how it exercises its authority. Again, I don’t care whether China actually believes it. But I would love China’s audiences—the UN, other governments, publics and citizens far and wide—to be disabused of the fantasy that there is a there there, that something deep and valuable is in play when China launches this appeal to sovereignty. I would like all those audiences to learn to roll their eyes disdainfully, to guffaw, to ridicule, to wonder if China is staunchly in favor of phlogiston and witches, too, or if the spokesman had just staggered out of a time machine. Law and politics aren’t the same, but in both arenas arguments about legitimate authority are crucial. And when we argue now, we still take sovereignty utterly seriously. I’d portray us as adults fondly clinging to shredded baby blankets and gnawed pacifiers, but alas there’s more at stake here than amusing neurosis. The stakes are higher, more public, not to mention crueler and bloodier.

Would everything be delightful were we to ceremoniously bury sovereignty? Of course not. Count on it: states would still do dreadful things; our legal and political futures would still be unutterably bleak. But those of us intent on damage control—citizens, international lawyers, formal international bodies, NGOs, even other states, if only intermittently and often for crappy reasons—would be better off if we weren’t paralyzed, hypnotized, seduced, by siren songs of sovereignty. We would be better off if we could resolutely say, constitutionalism and federalism and the rule of law have improved the state, have helped us bring it to heel, and they have shattered the very idea of sovereignty, and it is time, past time, to move on. We would be better off yet if we could learn to say those things without stumbling or hesitating. Then, eventually, actors invoking sovereignty would learn they had nothing to gain by invoking it. We would see through the patent effrontery of their brandishing the principle that they must be unshackled, undivided, unaccountable for their abuses. At some margin, the world would be a less dreary and horrifying place.

That’s about as cheerful as I can get about our prospects. I started my book by proposing that we bury the concept of sovereignty. Maybe I should have proposed that we murder it. After all, it isn’t dead. And it has resolute champions. Go figure.