Scalia: Pres. must not have "uncontrolled mastery" over foreign affairs [cough]

The SCOTUS passport case that came down today (pdf here) reflected mostly a liberal-conservative split (Kennedy writing the majority opinion), with Thomas wandering off on his own.  At issue was a statutory provision requiring the State Dept., on request, to list Israel as the place of birth in a passport of a U.S. citizen born in Jerusalem.  The majority struck this down, saying it improperly constrained the President's power to recognize foreign governments and noting that the official executive-branch policy is (in the words of the syllabus, i.e. the opinon summary) that it "does not recognize any country as having sovereignty over Jerusalem."

Scalia, writing the main dissent (which was the only opinion I spent any time looking at), was indignant ("nonsense," logic worthy of "Mad Hatter") and professed to have enormous concern for the separation of powers and that the President should not have "uncontrolled mastery" over foreign policy.  Two things: first, Scalia insisted that recognition is "a type of legal act," not "a type of statement," which ignores or glosses over the fact that legal acts of recognition are themselves statements; second, one might be forgiven for wondering whether Scalia would have been so concerned about untrammeled presidential power in foreign affairs if this case had concerned something other than Israel and Jerusalem.

Note: Post edited slightly after initial posting.

The just war tradition and sovereignty (book review)

James Turner Johnson, Sovereignty: Moral and Historical Perspectives. Georgetown University Press, 2014. 181 pp. (including bibliography and index).

 
James Turner Johnson is an expert on 'the just war tradition,' and in Sovereignty he considers the co-evolution of ideas about sovereignty and just war.  Indeed the book probably should have been called something like The Just War Tradition and Sovereignty, since that would have more accurately indicated its contents than the title it actually carries.
 
Johnson's starting point is a conception of sovereignty that predates the modern state, one that defined sovereignty "in terms of the moral responsibility of the ruler for the common good of the people governed" (p.2).  Johnson is rather vague about what this meant in practice, but at a minimum a ruler's "moral responsibility" entailed meting out just punishments and protecting the political community from external (and internal) threats.  The 'sovereign', a ruler "without temporal superior," was sometimes required to wage war for these purposes.  This particular notion of sovereignty thus developed in tandem with what Part 1 of the book calls the 'classic just war tradition.'  One probably could also make a case, though Johnson does not do so, that this somewhat paternalistic view of authority traces back, at least in the West, to Plato's description of the guardians in the Republic. 

In any event, one of the book's main arguments is that this older view of sovereignty, in its concern with the quality of rule and the sovereign's responsibility for the common good, has a moral dimension that the modern view, with its emphasis on territorial integrity and non-intervention, lacks.  Yet some writers, such as Robert Jackson in The Global Covenant and Brad R. Roth in Sovereign Equality and Moral Disagreement, have argued that the principles of territorial inviolability and non-intervention have their own moral foundation, inasmuch as they allow, at least in theory, each 'political community' to shape its own destiny with a minimum of external meddling.  Roth's position is that "...international law's highest and best uses remain those given pride of place in the United Nations Charter: the establishment of a platform for peaceful accommodation among states representing a diversity of interests and values, and the protection of weak political communities from overbearing projections of power by strong foreign states" (Sovereign Equality and Moral Disagreement, p.5).  By contrast, Johnson is less concerned with "overbearing projections of power" from outside and more concerned that existing sovereignty norms often serve to shield bad behavior by oppressive or murderous rulers.  This in turn raises questions about, among other things, the moral status of state boundaries and state autonomy, questions that Johnson tends to answer only indirectly. 

***

Although there is a nod in the first chapter in the direction of Augustine and "the Augustinian heritage," the book's historical discussion really gets underway with Aquinas, who listed "three requirements for a war to be just: the authority of a prince [auctoritas principis], a just cause, and a right intention" (pp.16-17).  The prince's responsibility was to uphold "the moral order itself" and thereby "the divine will," by punishing injustices and those who had committed them (pp.19, 20).  Aquinas distinguished between rulers who acted in the interest of the political community and 'tyrants' who did not; however, he was not consistent on "how to respond to tyranny" (p.41).   

Aquinas's main concern was jus ad bellum, i.e. the grounds for starting a war, rather than what came to be called jus in bello, i.e. the conduct of a war once begun.  The latter considerations entered the tradition via the writing of Honoré Bonet and Christine de Pisan during the Hundred Years War (1337-1453) (p.43).  These writers "joined the chivalric 'law of arms'" to Aquinas's jus ad bellum requirements, and the "combined conception was then passed on into the debates over warfare in the early modern period" (p.43).  Thus by the fifteenth century, if not before, 'just war theory' already encompassed two basic questions: (1) Under what circumstances is it just to begin a war? and (2) What constitutes just conduct on the battlefield (and in the treatment of noncombatants, prisoners, etc.)?

After discussing Aquinas and several of Aquinas's Neo-Scholastic successors, Johnson moves on to Luther and some other Reformation thinkers, and then to Grotius.  Grotius (drawing on some previous writers such as Vitoria) shifted "the locus of authority to wage just war...from the prince to the commonwealth," with the prince now seen as the polity's agent or representative (p.82).  Grotius also put more emphasis on defense, especially defense of the polity's territory, as a justification for war (p.84).  The political community's right to defend itself is now seen as derivative of the individual right to self-defense, and the authority to act in the community's defense is delegated from its members to the ruler.  

Johnson sees the Grotian emphasis on self-defense as a narrowing of the earlier conception of just war and sovereignty.  Here Johnson takes the traditional view of the Peace of Westphalia, i.e., he regards it as having laid the ground for the close connection between sovereignty and territory that has characterized the modern state system.  However, this view of the Peace of Westphalia has been quite persuasively criticized in recent years.  Older, 'feudal' notions of territoriality and authority clearly persist in the Westphalian treaties; Johnson neither acknowledges this nor quotes any articles of the treaties.  He does say that the shift in focus from the ruler-as-independent-actor to the ruler-as-the-polity's-agent resulted from reading the Peace of Westphalia through a Grotian lens (p.93), but that's a different point.  There's nothing wrong with accepting the dominant linguistic conventions and retaining the adjective "Westphalian" to refer to the current sovereignty regime (or key aspects of it), provided one notes -- as Johnson fails to do -- that its link to the actual provisions of the Peace of Westphalia is rather tenuous, to say the least.       

In the book's second part Johnson discusses issues of contemporary resonance, namely Islamic views of just war (ch. 6) and 'the responsibility to protect' (ch. 7), taking a broad view of the latter.  He is, however, unduly critical of the UN (p.160).  I'm not going to summarize these chapters in any detail here (so readers who are interested in them will have to consult the book).

The brevity of this book is welcome but it comes at a cost: Johnson does not engage with most of the secondary literature on the writers he discusses.  A fairly standard work like Richard Tuck's The Rights of War and Peace is not in the bibliography; nor is Edward Keene's Beyond the Anarchical Society, which connects Grotius to colonialism.  (Nor, with a couple of exceptions, does Johnson reference recent work on sovereignty and territoriality, though it's admittedly somewhat more removed from his main concerns.)  Still, Johnson's core chapters do provide an overview of some of the main lines of thought on just war and sovereignty in the Western tradition.  Rather than adopting the neutral tone of a textbook or survey, Johnson makes a definite argument, and one that might be questioned on certain points; this book is therefore probably best read in conjunction with other treatments of the same general ground that take a different perspective.       

Self-determination and "the clash of norms"

Putting aside the specific circumstances surrounding the Crimea referendum -- circumstances that make it impossible to say that the vote was conducted under fair conditions -- the fact remains that it seems reasonably clear that most Crimeans want to leave Ukraine and join Russia. Thus this is a case, and not the first by any means, in which the principle of self-determination comes into conflict with that of preserving the territorial integrity of extant, recognized sovereign states.

In this case the U.S. and EU have plumped for territorial integrity over self-determination, and the particular circumstances, i.e. the Russian invasion that preceded the referendum, have allowed them to claim the legal and moral high ground in doing so. But in the past the U.S. and many of its allies have occasionally made the opposite choice, recognizing states that have resulted from the breakup of existing ones (e.g., Eritrea, Bosnia, Kosovo), and while it is possible to paint some of this as simple acquiescence to faits accomplis it would be difficult to maintain that a wholly consistent, high-minded, and principled stance has guided all such past decisions.

Indeed, it would be surprising to find complete consistency in anything having to do with state behavior, since it is a truism that the world is complicated and that states navigate it by a messy mixture of interest, calculation, and principle, a mixture that is unlikely to yield completely consistent results. Scholars may try to discern a consistent thread that determines, for example, when the U.S. recognizes secessionist movements and when it does not (see, e.g., Jonathan Paquin, A Stability-Seeking Power, 2010; link), but without casting aspersions on the particular book just mentioned I think it would be wise to retain some skepticism about whether these often tangled situations can be tamed by a nice theory.

The problem is not only that states are guided by a mixture of considerations but that principles themselves, as mentioned at the beginning of this post, come into conflict. In an article published almost twenty years ago ("The Crisis of Liberal Internationalism," Foreign Policy, Spring 1995; link to pdf), Stanley Hoffmann put the point this way:

It is precisely in the realm of chaos I described above -- the realm of disintegrating states -- that the clash of norms is the most evident and paralyzing: Sovereignty (as a principle of order and, still, a barrier against aggressive or imperial designs), self-government or democracy, national self-determination (with all its ambiguities and flaws), and human rights (which are not devoid of ambiguities of their own...) are four norms in conflict.... Human rights...often cannot be protected without infringing upon another state's sovereignty, or without circumscribing the potential for a "tyranny of the majority" entailed by national self-determination and by Jacobin versions of democracy. The trouble-making potential of self-determination, both for interstate order and for human rights, is not so obvious that many liberals want to curb it or even get rid of it, yet the demand for it simply cannot be ignored, and denying its legitimacy would rarely be a recipe for order or democracy. Inconsistency is the result of this confusion: the international "community" has recognized Croatia, Bosnia, and Eritrea, but not Biafra, Chechnya, or the right of the Kurds and Tibetans to states of their own.

Scholars emerging from graduate school with PhDs in political science or international relations are unlikely, I would guess, to find jobs these days if their work prominently features words like "inconsistency" and "confusion." The field tends to value work that purports to bring theoretical order out of apparent chaos. But confusion and inconsistency are often pervasive in the real world of international relations, and although "it's confusing" will not cut it if one is writing a dissertation, for those whose priority is understanding the real world "it's confusing" is not a bad place to start -- and, sometimes, it's also not a bad place to end up.

The debate about boundaries

John Quiggin recently touched off a long discussion at Crooked Timber with the assertion, contained in a re-cycled post on "the traditionality of modernity," that "national boundaries are becoming more stable over time, not less."

I won't repeat my comments in that discussion here, but want to follow up with a couple of reflections (one or two of which will be set out here, others perhaps in a subsequent post).

In questioning the assertion that "national boundaries are becoming more stable over time," several CT commenters argued that not enough time has passed since the end of decolonization, or even since the end of WW2, to draw inferences about a trend.

For example, Peter T writes in a comment at the end of the thread:

John Quiggin would, I imagine, be fairly hard on those who repeat the “19 years of flat temperatures proves global warming is a myth” idiocy. But there’s a similar issue here. We should not expect national boundaries or state break-up/formation to proceed at a steady pace. They are affairs of decades at the least. Definite national boundaries, as opposed to zones of influence (sometimes broad, sometimes quite sharply defined), are a fairly recent thing over much of the earth anyway. The last wave – the decolonisation movement – only subsided around 40 years ago. There have been a number of minor shifts since then, plus the break-up of the Soviet Union and Yugoslavia. So it hasn’t really been all that stable, and it may be simply too early to go looking for explanations. If we get through another 30 or so years without major changes in state boundaries, then I’ll be impressed (if I live that long).

There are several issues here. One is that a strong argument can be made that decolonization itself, as it played out, contributed to boundary stability rather than the reverse (I dealt with that at CT, so won't elaborate here). Another is that Peter T (like others who made a similar point) assumes that the statement "national boundaries are becoming more stable over time" contains an implicit prediction that stability noticed at time T will persist until some future time T + X, or will persist indefinitely. Although the context of JQ's post might have encouraged this interpretation, the statement that "national boundaries are becoming more stable over time" need not be read as anything other than a descriptive statement of what has been happening in recent years: the words "are becoming" do not necessarily mean "will continue to become" or "will continue to become, indefinitely." If someone looks in the mirror and says "my hair is becoming grayer," that does not necessarily mean "my hair will continue to become grayer." All it means is that the person has noticed that his or her hair is grayer now than it was two weeks ago, or two years ago. There is no guarantee that the process of graying will continue: the color of the hair could simply remain as it is, or it is even possible (if not perhaps likely) that the process of graying could reverse itself (without the application of hair dye or anything like that). 

The point, and sorry for the repetition, is that "national boundaries are becoming more stable over time" does not necessarily have to mean "national boundaries will continue to become ever more stable" or that "stability will persist indefinitely." It can simply mean that in a given span of time -- the last half-century, say -- national boundaries have become more stable. The notion that this, even if empirically accurate, is a meaningless observation because it probably just represents another phase in an endless up-and-down cycle, and the related notion that 40 or 50 or 60 or 70 years is too short a time span from which to infer anything of consequence, both suffer from the same weakness.

The weakness is that these dismissals ignore the normative context of international politics, the normative environment in which, in this case, fluctuations in boundaries do or don't occur. Actors have ideas and these ideas influence how they behave, at least to some extent. One idea that the corporate actors known as states now firmly have in their heads is that national (i.e., state) boundaries should be messed with as little as possible and as seldom as possible. We know this because they say it in authoritative contexts. Of course actions do not always match words. The question is how often actions diverge from words. Krasner in his book on sovereignty argued that states' actions diverge from their words quite often; he called this, borrowing from other writers, 'organized hypocrisy,' i.e., a situation "in which institutional norms are enduring but frequently ignored." Is the current norm about boundaries -- i.e., 'don't mess with them' in my colloquial rendering -- "frequently ignored"? Are we dealing here with organized hypocrisy? It depends partly on what one means by "frequently," but my sense is -- and some research, to which I referred at CT, backs up this intuition -- that the boundary norm (or 'the territorial integrity norm' as it has been called) is observed much or most of the time. Not all the time, but enough of the time so that one can say that the match between words and deeds in this particular context is reasonably (not perfectly, but reasonably) good. The norm could change, and/or the degree of conformity to it could change, but to write comments on this subject as if the norm did not exist is peculiar, to say the least. 

Commenters who made points like the one quoted above don't even ask the question about the match between words and deeds because they implicitly assume that words don't matter. It's as if the stability/instability of boundaries, for them, is a question in Newtonian physics, completely divorced from what humans in their collective capacity think or say. But that's not how politics, or almost any other aspect of human life for that matter, works.

Note (added 3/3): Peter T has replied in the comment thread attached to this post; those interested may read the ensuing conversation there. 

ETA: Another example of the same sort of thing, this time from a CT commenter who annoys me a lot more than Peter T ever has, namely bob mcmanus. Here's mcmanus (from another CT thread):

Just finished Daniel Alpert’s Age of Oversupply. It’s a readable middle-brow summation ... with affinities to DeLong and Krugman, with the usual laundry list of Keynesian technocratic prescriptions that are politically implausible.  I think the resource or supply constraints are still a long ways off. What we have is a typical glut, overcapacity, overproduction, oversupply crisis, a typical Marxist (too much capital) crisis of astronomical proportions. Combined with an equally terrifying failure of distribution and global and local imbalances of power and resources. Combined with perhaps social technological advances (US hegemon, nukes, smarter Central Banks, int’l technocrats) that prevent the old mechanisms of creative destruction and rebalancing, war/revolution and/or depression/capitals destruction => reterritorialization and reconstruction.

I've added the italics, because that's the part I want to focus on. What is preventing a global war, which mcmanus seems to think might in some way be beneficial, at least to the powers that be? Why, it's "social technological" factors: "US hegemon, nukes, smarter Central Banks, int’l technocrats." God forbid it should ever enter his mind that what statespeople say and believe actually makes a difference in how they conduct themselves. Or that the experiences of their predecessors might influence them. No, that's all superstructural rubbish.

Nowhere to go but up

A couple of things I've seen recently in the blogoshere led me to take a look at an article called "Decolonizing International Relations: Perspectives from Latin America," International Studies Review, Sept. 2012.

The author begins by saying that "the aim of this paper is to think differently about International Relations (IR) by thinking differently about the Americas." The author writes "as a Latin Americanist, and as such...bring[s] a particular geographical and disciplinary perspective to the question of power in the region, drawing on the 'coloniality of power' perspective developed by Latin American academics."

I suppose that could be interesting, provided the perspective is lucidly explained for those unfamiliar with it.

But then my eye fell on this passage, in which the author is approvingly discussing Inayatullah and Blaney's book International Relations and the Problem of Difference:

[Inayatullah and Blaney] show how ideas such as sovereignty and just war -- keystones in the edifice of IR -- are grounded in an understanding of the world which writes such ideas as universal without acknowledging that they emerged from a particular social milieu.

Let's put 'just war' aside and focus on sovereignty. How is the idea of sovereignty "grounded in an understanding of the world" which fails to acknowledge that it emerged from "a particular social milieu"? Virtually every intro IR textbook informs its readers that the idea of sovereignty (as the term is used in contemporary international law and relations) emerged from a particular milieu -- i.e., Europe during a particular era (whose precise dates one might argue about) -- and then eventually spread beyond the milieu in which it originated. No doubt the spread of the idea and institution of sovereignty was historically tied up in various ways with European imperialism, but are people not aware that the most vociferous proponents of state sovereignty and its corollary of noninterference in internal affairs are the states that emerged from the processes of decolonization in the nineteenth and then the mid-twentieth century? Try telling any leader of an Asian, African or Latin American country that the idea of sovereignty is a tool of the 'coloniality of power' because it is a European idea pretending to be a universal one. Chances are you'll be greeted with a shrug or a quizzical look and then politely asked to leave.

Things get worse with this:

...the notion of European superiority was caught up with the Peace of Westphalia, which allowed the birth of the modern nation-state to be heralded as a social advance and confirmed the nation-state as a 'natural' and desirable social model....

Actually the Peace of Westphalia had very little (indeed I would say nothing) to do with the "birth of the modern nation-state," which was a long process that did not reach its end-point until well after 1648. How much Westphalia even had to do with sovereignty is highly debatable, but sovereignty and "the modern nation-state" should not be treated as the same. As for the Peace of Westphalia allowing "the birth of the modern nation-state to be heralded as a social advance and confirm[ing] the nation-state as a 'natural' and desirable social model," I think that is little better than gibberish.

A glance at the rest of the article suggests that it gets somewhat better, but then, starting from such a low point, it has nowhere to go but up.

Abstract of the day

Peter Haldèn, "Republican Continuities in the Vienna Order and the German Confederation (1815-66)," Eur. Journal of Intl. Relations, June 2013:

This article argues that the German Confederation — deutscher Bund — (1815–66) was a form of rule built on early modern republican political theory. It was a ‘Compound Republic’ form of rule constructed to prevent the emergence of a system of sovereign German states as well as a single sovereign German state. Its purpose was maintaining peace and stability in Europe and safeguarding the autonomy of its member polities. Contemporary statesmen, intellectuals and scholars saw these purposes as complementary. A non-sovereign, polycentric and republican organization of the German lands was regarded as a natural and necessary component in a stable Europe free from war and revolutions. This article analyses the origins, institutions and policies of the German Confederation, with particular regard to how the means of organized violence were organized. It thereby demonstrates the implementation of republican ideas and purposes in the Bund. The article situates the Bund in 19th-century thinking about European stability and sovereignty, further demonstrating the prevalence of republican ideas on international order. Republican political theories and institutions differed sharply from modern theories and models of international relations. Consequently, the history of international politics, the European system of states and state-formation must be re-conceptualized more in line with historical realities.

Does the process of state recognition need to be 'normalized'?

The 1933 Montevideo Convention on the Rights and Duties of States sets out the minimum requirements for statehood in international law: "a permanent population; a defined territory; government; and capacity to enter into relations with the other States." A prominent international lawyer has written that several of these criteria boil down to "the existence of effective government...." (Ian Brownlie, Principles of Public International Law, 4th ed., p.73).

Not surprisingly, the rather vague criteria of the Montevideo Convention have not always been applied consistently. In a 2002 article, "Sovereign Rights in International Relations: A Futile Search for Regulated or Regular State Behavior" (Review of International Studies, 28:4), Ersun Kurtulus pointed out that, for example, Chechnya in the 1990s had most of the empirical attributes of statehood but lacked the legal status of sovereignty, whereas Bosnia-Herzegovina was widely recognized as a sovereign state while (arguably) lacking the empirical attributes of statehood. Bosnia was hardly alone in that respect, of course. There is a well-known distinction in the Int'l Relations literature, introduced by Robert Jackson, between "juridical" and "empirical" sovereignty. To take an example: Somalia has juridical but not empirical sovereignty, whereas Somaliland, one could argue, has empirical but not juridical sovereignty. (On Somaliland, see, e.g., Peter Roethke, "The Right to Secede Under International Law: The Case of Somaliland," Journal of International Service, 20:2, Fall 2011.)

The above remarks are prompted by reading Courtney Brooks's article, "Making a State a State," in the current issue of World Policy Journal. Brooks, the UN correspondent for Radio Free Europe/Radio Liberty, argues that there is a "need for a mechanism to normalize the process of international recognition of a state."  UN membership, which requires a two-thirds vote of the General Assembly, is perhaps the closest thing to an official stamp of recognition of statehood, but it isn't quite that, and moreover any one of the five permanent members of the Security Council can veto a membership application. 

Brooks contends that no one country should be able to veto a UN membership bid and that a way should be found to bypass the veto power, perhaps by reviving a 1950 SC resolution that was used to break a deadlock over the Korean War by giving "the General Assembly the power to overrule the Security Council in some instances...." The likelihood of this occurring, I would say, is minimal, but it's an interesting proposal.  
 
However, in terms of the way it's organized, the problem with Brooks's generally good article is that it begins with a discussion of Abkhazia, a region in the west of Georgia (see map here) that declared itself independent in 1999 but is recognized as an independent state only by Russia and four other countries. (The four are Venezuela, Nicaragua, Nauru and Tuvalu, the latter two being tiny island states in the Pacific.) 

Abkhazia is thus not a case of an entity that would benefit from a 'normalization' of the recognition procedure or a bypassing of the Security Council veto, since virtually no country wants to recognize it except Russia. Brooks quotes a Russian spokesman as saying "we encourage everybody to accept the new geopolitical reality in the South Caucasus. Two independent states, Abkhazia and South Ossetia, exist there alongside Georgia." This is Moscow's position and (with respect to Abkhazia at least) Venezuela's and Nicaragua's position, and Nauru's and Tuvalu's, all of whose positions have, as one might delicately put it, been influenced by Russian financial largesse. But the other 180-plus sovereign states in the world aren't buying this "new geopolitical reality."    

Accordingly, Brooks tacks on a coda proposing that residents of "disputed territories" like Abkhazia should have their rights to travel freely, for example, guaranteed by some mechanism, perhaps a revival of something like the UN Trusteeship Council. Again, I don't know whether this particular mechanism is the right one, but the basic idea of enhancing the rights of Abkhazians and others similarly situated seems reasonable.

Two other quibbles with the piece: it uses "state" and "nation" interchangeably, which I think should be avoided if possible, and it refers at one point to the "rigidity" of territorial boundaries in negative terms. In fact the rigidity of boundaries has some significant benefits as well as some costs; for further discussion, see, e.g., here.

P.s. Be sure to catch the very short poem quoted at the very end of Brooks's article.

Further reading: Mikulas Fabry, Recognizing States (Oxford U.P., 2010).

A.M. linkage

Pressman on whether the U.S. and Israel continue to share values.

D.C. Exile on sovereignty and drone strikes.

[added later] More on Israel: The Fall 2012 issue of Dissent, which I just bought in a bkstore, contains an exchange on Israel between James Rule and Michael Walzer, as well as a review-essay "Zionism and Its Discontents." Haven't read either one yet.    

Airline carbon emissions tax: latest EU-U.S. dispute

The European Court of Justice (ECJ) recently upheld the EU's levying of a carbon emissions tax on non-EU planes flying to EU destinations. The U.S., Canada, and China strongly object, with the U.S. arguing that the International Civil Aviation Organization (ICAO) is the proper body to deal with this.

A couple of thoughts. First, when it comes to concerns over climate change versus concerns over the balance sheets of U.S. airlines, the latter wins out in the Obama admin, it seems. Second, whatever objections are being advanced to the ECJ's ruling, it is probably hard to fault the court's reasoning that sovereignty is not in question here: the planes are flying into EU airspace, after all. But large amounts of money are apparently involved, so this dispute will no doubt continue.

Walzer, Mill, Libya, and the value of state boundaries

In a blog post written last March (which I linked at the time but did not comment on at any length), Michael Walzer rehearsed J.S. Mill's argument about non-intervention, an argument Walzer had also summarized in his Just and Unjust Wars (Basic Books, 1977), pp. 87-91. With the debate about the Libyan intervention, sovereignty, and R2P continuing to simmer (in the IR blogosphere and elsewhere), and with Gaddafi still at large and one or two cities in Libya still resisting the rebels (or revolutionaries, or anti-Gaddafi forces, whichever label you like), it may be worth going back to Walzer's post. The question whether the U.S. and/or NATO should intervene in Libya is now of course moot, but the broader issues will likely recur (and have already recurred in a way in the case, e.g., of Syria).

Mill's position was basically that oppressed peoples had to struggle for their own freedom without outside help; if they failed to secure freedom that proved they didn't deserve it, weren't "fit" enough for it. In his blog post of last March, Walzer wrote that if the Libyan rebels were on the verge of defeat he would not be willing to go all the way with Mill, i.e. to declare the rebels "unfit" for liberty and leave them to their fate after a Gaddafi victory. But Walzer said that when intervention became necessary -- and he wasn't sure exactly when that point of "necessity" would occur -- it should be done by neighbors, by the Egyptian and Tunisian armies, rather than by the U.S. and NATO.

Even though he was not willing to go all the way with Mill in the Libyan case, Walzer clearly has a lot of sympathy for the view that oppressed peoples should do their own struggling, with outsiders intervening only in cases of real "necessity" (however defined). In Just and Unjust Wars [JUW] (pp. 90-91), he wrote: "We need to establish a kind of a priori respect for state boundaries; they are, as I have argued before, the only boundaries communities ever have. And that is why intervention is always justified as if it were an exception to a general rule, made necessary by the urgency or extremity of a particular case."

It is perhaps unfair to focus on something Walzer wrote 30-plus years ago, ignoring his more recent writing on these issues; still, the sentence just quoted shows a weakness, in my view, of his approach in JUW, namely the attachment of too much moral value to state boundaries. He recognized the (in some cases) "arbitrary and accidental character of state boundaries... [and] the ambiguous relation of the political community or communities within those boundaries to the government that defends them" (JUW, p. 89), but his basic position was that boundaries enclose communities which should be left to work out their political fates for themselves. There is definitely something to be said for this view but it is also necessary to acknowledge that the ways in which state boundaries are routinely penetrated or breached by outsiders, whether they be governments, corporations or NGOs, make the issue somewhat more complicated [note: some, e.g. Robert Jackson, would deny this]. Moreover, it is not the case that state boundaries are "the only boundaries communities ever have." Students of international relations have spilled much ink writing about all sorts of boundaries (ethnic, zonal, tribal, etc.). State boundaries retain a special place in international law and practice, but they are not the only boundaries communities have.

So where does this leave matters? Intervention should still be an exception to a general rule, and R2P, at least as I understand it, does not alter that. But in a world that some see as being full of cross-boundary 'networks' and transnational communities, the principle of non-intervention, assuming one wants to keep it, perhaps needs an updated justification, one that does not rely quite so heavily on a picture of self-enclosed national communities, each working out its own political destiny in isolation from the world outside. I'm not sure exactly what that updated justification of non-intervention might look like; perhaps political theorists and IR types have already produced one and with a little research I could find it. But laziness being the blogger's prerogative, I'm not going to bother searching, at least not now.

No, no, no

Not that this will do any good, but ... people persist in mischaracterizing the Peace of Westphalia.

I'm skimming through a piece by Geoffrey Wheatcroft, called "Once Upon a Time in Westphalia" (ungated) in the current issue of The National Interest -- lots of nice quotations, Rev. Sydney Smith, Cobden and Bright, yes, yes, etc. Then my eye falls on a sentence which says that the Peace of Westphalia "established the principle of national sovereignty" (uh-oh) and that it also established the principle of cuius regio eius religio (whose the region, his the religion). Both statements are wrong, though the second one is perhaps a bit more excusable inasmuch as it confuses the Peace of Westphalia with the Peace of Augsburg. The first statement, about Westphalia and "national sovereignty," doesn't confuse anything with anything else; it's just wrong. There are some people who argue that Westphalia helped lay the foundations for a sovereign state system, though even this claim is debatable, but to say it "established the principle of national sovereignty," in an article full of other historical references, is not good.

May I suggest that Mr. Wheatcroft read the text of the treaties of Munster and Osnabruck (or at least the former). They're online.

Does the 'sovereignty debate' matter?

Update: I've now read Slaughter's latest entry in the debate, and at least on a theoretical level I tend to agree with the "walk and chew gum" formula: sovereignty as it's coming to be understood implies both a state's monopoly on the legitimate use of force within its borders (at least in the normal run of things) and a duty to act in non-exterminatory ways toward its citizens. As Slaughter herself appears to acknowledge, this hardly resolves all the practical problems, but as a general formula it seems unobjectionable.
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I would be lying if I'd said I have read with extremely close attention the recent blog posts by A.-M. Slaughter (here), J. Foust (here), D.P. Trombly (here), and others about the implications of the Libya intervention for the notion of state sovereignty. But the gist is that Slaughter wrote a post at The Atlantic saying that R2P and its application in Libya means that the "nature of sovereignty has fundamentally changed," Foust and Trombly took exception, and they were off.

Guess what? None of them is completely right. (You knew I was going to say that.) I think Slaughter is probably exaggerating when she implies that the notion of sovereignty as it is traditionally understood by international lawyers is dead -- to the extent she has implied that -- and Foust and Trombly are wrong to suggest that the 19th and 20th-century (note: their periodization) concept of sovereignty is as much about preventing civil war as it is about preventing external intervention in a state's 'internal affairs'. The modern idea of state sovereignty as enshrined for instance in Art. 2(7) of the UN Charter has more to do with the prerogatives of governments (states) than anything else. R2P has widened and formalized a traditional exception rather than completely upended the received notion of sovereignty, or so I would be inclined to argue.

Anyway, does the whole debate matter? I'm not sure it does. It gives IR types another subject to argue about, but whether it has any real importance beyond that is questionable. Governments will continue to make decisions about intervention for a variety of reasons, but whether any policy-makers will first sit down and reach a position on whether sovereignty has 'fundamentally changed' is, I think, doubtful. But this is, admittedly, pure speculation.

Added on 9/5: See also J. Ulfelder here.