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Sovereignty and Inequality
Benedict Kingsbury1
Full text available: PDF format *
Abstract
Inequality within and between societies has been a neglected issue in the contemporary theory of international law. The concept of sovereignty makes this neglect possible in traditional international law, as analysis of Oppenheim's 1905 textbook demonstrates. Globalization and democratization are placing state sovereignty under strain, as international rules and institutions appear to become more intrusive, transnational civil society more active, and unitary state control less pronounced. State sovereignty as a normative concept is increasingly challenged, especially by a functional view in which the state loses its normative priority and competes with supranational, private, and local actors in the optimal allocation of regulatory authority. But discarding sovereignty in favour of a functional approach will intensify inequality, weakening restraints on coercive intervention, diminishing critical roles of the state as a locus of identity and an autonomous zone of politics, and redividing the world into zones. The traditional normative concept of sovereignty is strained and flawed, but in the absence of better means to manage inequality it remains preferable to any of the alternatives on offer.
Inequality is one of the major subjects of modern social and political inquiry, but it has received minimal consideration as a theoretical topic in the recent literature of international law. While the reluctance formally to confront inequality has many causes, it has been made possible - and encouraged - by the centrality of sovereignty as a normative foundation of international law.2 The discipline of international law has long encompassed some disparagement of sovereignty, even while simultaneously embracing it. In recent years, however, proposals to abandon the normative concept of sovereignty have acquired new vitality, drawing on contemporary perceptions that the traditional concept of sovereignty might be outmoded in a new age of globalization and democratization. These proposals are sustained by what their proponents see as an emergent global public policy animated by commitments to markets, civil society, liberal peace, the rule of law, untrammelled communication, and transnationalism. This global public policy takes modest account of equality as a style of politics and as a procedural component of democracy and the rule of law, but it is not clearly committed to the substantive reduction of global inequality. The system of sovereignty has hitherto had the effect of fragmenting and diverting demands that international law better address inequality, but if sovereignty were to be displaced as a foundational normative concept for the structure of international law, an alternative means to manage inequality would become essential. No such alternative is presently on offer. This article argues that the lack of other means to cope with inequality is a serious problem for international law that has been wrongly neglected, but that the lack of such an alternative provides a strong reason to adhere to the existing concept of sovereignty, however much it may be strained by practice and problematized by theory.
The theory of sovereignty has relieved international lawyers from the need for a general theory of the legal management of inequality in three major ways.
First, the concept of sovereignty underpins a principle of sovereign equality that has attained almost an ontological position in the structure of the international legal system. This ontological status makes enough difference in the processes of international law and politics to modestly vindicate the significance and effectiveness of the system of sovereign equality: thus very small states are procedurally on an equal footing with the largest or most powerful states in the International Court of Justice, and groups of small states have made some difference in the dynamics of multilateral bargaining on issues such as climate change. In the same spirit, legal doctrines of the special status of great powers have been in the descendant since 1945, and such matters as the structure of the Non-Proliferation Treaty or the UN Security Council are dealt with by most legal writers as anomalies, however necessary or enduring, in the scheme of sovereign equality.3 This conceptual scheme serves, if very unevenly, as a counter to the vast inequalities that might otherwise be expected to feature in the formal structure of the legal system.
Second, the concept of state sovereignty allows questions of social and economic inequality among people to be treated in international law as a responsibility of territorial states. International law and legal institutions are able to promote market activity, for example through the World Trade Organization or the International Monetary Fund, while in theory leaving largely to states the responsibility of mitigating social and economic inequalities associated with markets. Episodic attempts to address economic and social inequality directly through substantial non-market changes in the international legal order have met with little success outside the established human rights and environmental programmes.4 Despite economic and political turbulence associated in some respects with inequality, concerns about it have remained displaced by preoccupations with reducing the role of the state in economic activity and in major market-distorting egalitarian redistribution. International institutions continue to play important roles in economic development, and political leaders in prosperous countries confronted with concerns about poverty or dislocation or maldistribution abroad increasingly hope for solutions from the World Bank and other intergovernmental agencies along with bilateral assistance and the much-vaunted voluntary sector. There is however a growing incongruence between the increasing market orientation of international law and the inability of international governance institutions or of many sovereign states to cope with problems of inequality that markets alone do not resolve. Intra-societal inequality in some countries, and unevenness in the global distribution of human flourishing whether defined in terms of well-being, capabilities, wealth, or a human development index, appears to have been intensifying rather than diminishing.5
Third, the theory of sovereignty provides the means by which people can express, and be deemed to have expressed, consent to the application of international legal norms and to international institutional competences. Consent, whether express or tacit, plays a crucial role in legitimating international legal rules and institutional activities in situations where their legitimacy might be in doubt, as where they infringe deeply-held egalitarian principles.6 This legitimating function is of vast importance for the international legal system. It is not clear that in the present state of heterogeneous international society, any non-consensual legitimating principle is viable; and sovereignty appears to be a relatively low-cost means to organize `consent'.
There is thus a relationship of mutual containment between sovereignty and inequality. The system of sovereignty at least notionally precludes some forms of inequality, while helping to exclude other forms of inequality from real consideration. Conversely, inequality limits sovereignty - for example, where hierarchies are established among different political and legal units that in the traditional conception of sovereignty (now increasingly problematic) mean the subordinate units lack sovereignty. Inequality also grounds critiques of sovereignty that weaken it as a normative concept - including critiques flowing from human rights, self-determination, feminist theory, and critical theory.
Part I of this article will examine the relations between sovereignty and inequality in the mainstream tradition of international law, focusing on the approach charted at the beginning of the 20th century by Lassa Oppenheim and others that has endured, in its fundamentals, until the present. Although sovereignty is central to the mainstream tradition of international law, it has always been viewed with ambivalence in that tradition.7 For mainstream writers sovereignty is at once the architecture for the present and future international legal system, an obstacle to a deepening rule of law system, a legitimation of morally dubious state conduct or social practices, a bulwark against the iniquities of dominance by powerful external forces, and a basis for identity and democratic decision-making.8
Globalization, democratization, privatization and the increasing self-assurance of liberal agendas have animated a shift away from this traditional ambivalence toward an outright rejection of the normative elements of universal and equal sovereignty, threatening to destabilize the established function of sovereignty as a device to contain inequality. Part 2 will consider some of these challenges, assess the extent to which such challenges have already led to adaptations in the traditional sovereignty-based account of international law, and note some implications for the treatment of inequality. Part 3 will consider whether the mounting critiques of the traditional concept of sovereignty might soon lead to the replacement of the present normative international law view by a functional view, and if so what the consequences might be for the management of inequality. The conclusion will return to the principal argument of this article, namely that a radical change in the international law concept of sovereignty will be hazardous without concomitant development of adequate alternative means to manage inequality.
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1 New York University Law School. This paper owes much
to the thought and generosity of Andrew Hurrell. Many thanks are also due to
Laurence Boisson de Chazournes, David Caron, Donald Horowitz, Theodor Meron,
Liam Murphy, Ngaire Woods, and other friends for their helpful comments on
earlier drafts. It will be included in A. Hurrell and N. Woods (eds),
Inequality, Globalization, and World Politics.
2 The sovereignty of state governments is defined in what has been
perhaps the most influential and certainly the most enduring English-language
treatise of the 20th century, Oppenheim's International Law vol. 1
(1905), at 101, as comprising independence, and authority in the form of
supremacy over territory and supremacy over persons. As `supreme authority, an
authority which is independent of any other earthly authority.... [it]
includes, therefore, independence all round, within and without the borders of
the country'. (Ibid, at 171.) `As comprising the power of a State to
exercise supreme authority over all persons and things within its territory,
sovereignty is territorial supremacy. As comprising the power of a State
to exercise supreme authority over its citizens at home and abroad, sovereignty
is personal supremacy.' (Ibid.) Although Oppenheim does not take
this approach, sovereignty may also be understood by reference to capabilities
attaching uniquely to the supreme authority. The modern bureaucratic welfarist
state has in many polities been understood as having unique capabilities in the
organization of public power, public services, `official' status, etc, a
capability of organizational supremacy. See e.g. C. Rousseau,
Droit International Public, vol. 3 (1977), at para.
106.
3 A point made à propos Hans Kelsen's The Law of the
United Nations (1950) by Danilo Zolo, `Hans Kelsen: International Peace
through International Law', 9 EJIL (1998) 306, at 315.
4 This applies to state-oriented attempts to change the terms of the
international economic order, efforts to recast international law in the spirit
of post-1945 European social democracy, various pre-1990s projects to build an
international law of development, and ongoing efforts to develop economic and
social rights. For illustrative works see K. Hossain (ed.), Legal Aspects of
the New International Economic Order (1980); R. St.J. Macdonald (ed.),
The International Law and Policy of Human Welfare (1978); A. Carty
(ed.), Law and Development (1992), and M. Craven, The International
Covenant on Economic, Social, and Cultural Rights: A Perspective on its
Development (1995).
5 For illustrative works from the vast literature on unmet problems
of social and economic inequality, see e.g. United Nations Development
Programme, Human Development Report (annual); L. Taylor and U. Pieper,
Reconciling Economic Reform and Sustainable Human Development: Social
Consequences of Neo-Liberalism (1996); Li, Squire and Zou, `Explaining
International and Intertemporal Variations in Income Inequality', 108
Economic Journal (1998) 26; Sen, `Mortality as an Indicator of Economic
Success and Failure', 108 Economic Journal (1998) 1; Chua, `The
Privatization-Nationalization Cycle: The Link Between Markets and Ethnicity in
Developing Countries', 95 Columbia Law Review (1995) 223; M. Nussbaum
and A. Sen (eds), The Quality of Life (1993); A. Sen, Inequality
Reexamined (1992).
6 A great deal of jurisprudential effort has been dedicated to
finding other bases of legitimacy for international law. See e.g. H. Kelsen,
Das Problem der Souveränität und die Theorie des
Völkerrechts (1920); and the use of the concept of international
community in e.g. A. Verdross and B. Simma, Universelles
Völkerrecht, 3rd ed. (1984).
7 Oppenheim acknowledged that the term `is used without any
well-recognized meaning except that of supreme authority', and showed some
sympathy with the notion that it might usefully be eliminated from the list of
necessary characteristics of statehood, and from the science of politics
altogether. Oppenheim, supra note 1, at 108. Among contemporary writers,
Louis Henkin, for example, argues: `Sovereignty, strictly, is the locus of
ultimate legitimate authority in a political society, once the Prince or "the
Crown", later parliament or the people. It is an internal concept and does not
have, need not have, any implications for relations between one state and
another.... For international relations, surely for international law, it is a
term largely unnecessary and better avoided.' L. Henkin, International Law:
Politics and Values (1995), at 9-10. See also H. Laski, A Grammar of
Politics (4th ed., 1938), at 44-45.
8 Sketching a similar argument, David Kennedy suggests that
sovereignty has been associated by members of each generation positively with
its aspirations and negatively with the excessive formalism of its predecessor.
In his characterization, sovereignty in 19th century international
jurisprudence enabled separation of public and private, law and morals. After
World War I it represented the aspirational liberalism of universality,
defining familiar standardized interchangeable units, providing a basis for a
strong process-based but non-substantive legal order, from which were
eventually teased substantive principles such as non-intervention. Sovereignty
became not a unity but a bundle of rights, `demystified, available to be
parcelled out, rearranged by law, managed by lawyers, technocrats, social
engineers'. `Some Reflections on "The Role of Sovereignty in the New
International Order"', in State Sovereignty: The Challenge of a
Changing World, Proceedings of the 1992 Conference of the Canadian Council of
International Law (1992) 237, at 241.
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