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On Sovereignty

Today is July 4, the anniversary of the signing of the U.S. Declaration of Independence in 1776, the date upon which my country asserted its own distinctive claim to sovereignty and repudiated British claims over us.  This particular July 4, moreover, occurs in a summer marked by headlines about Greek street protests over that country’s purported loss of sovereignty in the ongoing Euro crisis, stories recounting complaints in Pakistan about alleged violations of its sovereignty by the U.S. special forces troops who recently killed Osama bin Laden near Islamabad, and continuing American grumbling about being “owned” by the Chinese creditors who have bankrolled our fiscal excesses by purchasing U.S. Government bonds.  With such discussions of national sovereignty in the news, and on the occasion of America’s birthday, it’s worth thinking a bit more deeply about the concept.

“Sovereignty” is an enormously powerful – even talismanic – term in modern global politics.  Violations of it are considered, in effect, the ultimate international offense, with the result that the invocation of impugned sovereignty is a potent way to rally one’s population in fits of righteous indignation.  And indeed, if properly understood, sovereignty is quite precious.  But sovereignty is one of those things about which more is often said than thought.

At one level, international law might seem reasonably clear about what sovereignty means.  Sovereign states are the basic constituent units of the international system, as traditionally conceived.  They are the actors that make treaty law, and whose behavioral choices constitute the “state practice” that contributes to the development (or decay) of customary international legal norms.  Sovereign states, because they are sovereign states, also have their own “internal affairs” – a category of things that are, in effect, their own darn business to run as they please – and all states are generally enjoined not to “interfere” in the internal affairs of any other state.

The usual debates one hears over the concept of sovereignty, however, consist principally of arguments over over its limits, or its future.  In today’s economically and electronically interconnected world, for instance, what constitutes impermissible “interference” in another’s affairs?  When do events in one sovereign state rise to the level that other states acquire an interest in them sufficient to legitimate some sort of intervention?  To what extent can the concept of sovereignty be invoked to fend of criticism of human rights violations or other abuses?  Can (and should) countries “pool” sovereignty – or at least aspects of it – in collective institutions such as the European Union?  To what extent do particular territorial entities not presently enjoying “national sovereignty” have a legitimate claim to it?  Is the concept of sovereignty still deservingly a cornerstone of international affairs, or is it becoming, as some would have it, obsolete?

Usually lost in such discussions, however, is a more serious consideration of where sovereignty really resides, and the deep implications thereof.  For practical purposes, we usually treat sovereignty as almost a byproduct of the process of state recognition, about which I had more to say in my previous NPF posting.  If we are willing to treat something as a state, in other words, we are generally willing to accept its ruler as speaking for that state – even when we decline to engage in diplomatic relations with him – and we are willing to accept that this state enjoys the attributes, whatever they may be, of national sovereignty.  Conceptually and morally, however, a lot can be hidden behind these simple statements.  Let’s try to unpack the baggage a little.

Who has sovereignty?  The reflexive answer – implicit, of course, in the term “national sovereignty” itself – is simply that the “nation” has sovereignty.  And here you presumably begin to see the problem.  It’s easy enough to opine that sovereignty is the result of national self-determination, but what counts as “determination,” and what the relevant national “self” is for such purposes, can be quite problematic.

Early European conceptions of nationalism tended to presuppose a sort of volk-territorial identity predicated upon an allegedly “natural” and ineradicable connection between some particular group of people and “their” land.  Through this prism, self-determination and national sovereignty were fairly straightforward: each “people” deserved its own state, which would in turn become the natural and inevitable vessel for sovereignty.

The hard part, of course, was determining which “people” counted, and which did not.  No small amount of blood has been shed over such disputes over the years, and – much 19th and 20th-Century ethnographic, pseudo-historical, and ideological claptrap aside – no one has yet made a very convincing case for such volk nationalism on natural grounds.  I pick no quarrel with the ancients’ insight that man is a social animal, but it is a great leap to go from the inarguable fact that humans tend to form groups to the assumption that any particular set of inter-group frontiers is natural or inevitable, especially across long stretches of time.

Even on the best of days, such nationalism is a breezy construction: a program of whipping up “us/them” feelings and of legitimating them (and an associated political agenda) by projecting such identity concepts backwards in time upon the misty past.  Not for nothing do sociologists and historians speak of the “invention of tradition,” and of nations as “imagined communities.”  Such identities are “imagined” not because they cannot be heartfelt – for they are quite capable of being that – nor because they are necessarily entirely fictitious.  Rather, they are “imagined” because not a single one of them has ever been as stable, as deeply rooted, as noncontingent, as uncontested, and as historically “natural” or permanent as it has felt itself to be.

The world certainly does have many large blocks of people in it who share pronounced cultural, linguistic, and other traits and affinities, and who feel themselves to be the same “people.”  Such identities often say more about their proponents today, however, than about their ancestors’ feelings in days of yore.  The importance of any particular asserted “us/them” frontier – and the choice of which group boundary to invest with what degree of salience – changes over time, as any look at European history will show.  Volk conceptions of national sovereignty assume that one particular delineation of group identity is both natural and inevitable, that this is the most important type of identity, and that it will remain so essentially forever.

Clearly, this approach has profound problems, not the least of which is conceptual incoherence.  I do not refer to volk nationalism’s track record of encouraging and justifying all manner of inhumanity and aggression vis-à-vis “them”-groups, both within asserted “national” frontiers and across them, though that record is grim indeed.  My point is that even if volk nationalism hadn’t had such a long and creepy history, it just doesn’t make that much sense.

The volk-nationalist concept only really works, as a concept, for those in the thrall of some kind of racial or ethnographic essentialism.  Think, for example, of the 18th-Century Prussian philosopher Johann Gottfried von Herder (1744-1803), for whom all humans inherently existed in discrete, bounded, defined, and implicitly unchanging clumps known as “nations,” each of which deserves its own sovereignty.  (He was principally concerned with the Germans, but the point was a more general one.)  If you buy the essentialist assumption – and we all, of course, know where that ended up in his country in the first half of the last century – the conclusion follows reasonably naturally.  For those with eyes open wider to the malleability and contingencies of identity in the real world, however, volk nationalism cannot but seem deeply flawed, not to say potentially dangerous.

There is, however, an alternative vision of self and sovereignty – a less historically presumptuous but no less compelling conception of identity, in which politically-salient selfhood is not ancient and “natural” in its delineation, but in fact quite the opposite, being instead chosen on an ongoing basis.  One might call this voluntary nationalism, to distinguish its contingency from the claimed historical “inevitability” of volk-nationalist conceptions.

Whereas volk nationalism tends ahistorically to presume the naturalness both of a particular group and of that group’s umbilical connection to some special plot of land that its members have a right to claim as their own, voluntary nationalism is, at a fundamental level, quite relaxed about the past – and even about boundaries.  In theory, at least, a voluntary nationalist should view both expansion and secession with relative equanimity.  If the population of a particular territory wants to join with that of another territory in order to exercise “nationhood” together rather than separately, that should be fine.  If a sub-territory of an existing state wishes to head off on its own, that should be fine too – provided, in both cases, that these decisions are freely made by the populations in question.

Indeed, given such conditions of democratic choice, a voluntary nationalist should have no objection, in principle, whether contemplating a world of diverse nation-states, or a single global government.  Where freely chosen, neither alternative – nor intermediate or hybridized positions, such as ideas of “pooled” sovereignty – should be, for him, philosophically offensive as an affront to “national” self-determination, because the salient “nation”-self is something that human populations get to define for themselves as a part of democratic self-governance.  (Different options may be more or less wise and more or less practicable under the circumstances, of course, but those are entirely different questions.)  Ascertaining the “right answer,” in other words, is an empirical matter, not one knowable a priori on the basis of historical or ethnographic assumptions, and it is one that may change over time as conceptions of selfhood evolve.

There is much, I think, to be said for the voluntarist conception.  Most importantly, it partakes of a democratic legitimacy that volk nationalism cannot coherently claim because the latter doctrine rests upon an ahistorical claim of naturalness and inevitability for political self-identities that are in reality malleable and contingent.  Volk nationalism offends against both “self” and “determination,” as it were, by misconstruing the nature of identity and by fixing one particular type of it in place over time, without acknowledging – or deferring in any ongoing way to – the degree to which the politically-salient aspects of identity are “real” only insofar as they are felt.

If status as a nation is to be considered legitimate, I believe, it has to root itself in democratic choice.  (Note, of course, that a voluntarist conception is not opposed to people who strongly feel a sense of shared “national” identity, and who happen to live together in a particular area, deciding to act on these feelings and choose nationhood for themselves.)  The voluntarist conception offers a more coherent answer to the conceptual problems raised by “self-determination” in the modern world – providing a good answer both to the question of “self” and to the question of “determination.”

How do these competing concepts play themselves out in the real world?  Think of the example of the challenges of mid- and late-20th Century European decolonization, and the travesties of dictatorship or one-party rule that the decolonization process sometimes created.  As all too many 20th-Century leaders approached these issues for many years, widely-held assumptions powerfully tinged by volk-nationalist ideology contributed to anti-imperial conclusions that the main injustice of the colonial era was “foreign” domination of one “people” by another – rather than, say, the degree to which populations were ruled without their consent within any particular set of frontiers.

If the problem wasn’t unchosen rule per se, but instead “alien” rule, the solution seemed simple: decolonization would provide “independence” for subject “nations” as part of a process of “national liberation.”  The geographic divorce between colonial and colonized peoples was morality obligatory precisely because each was, one might say, axiomatically an “Other” to the other.  Decolonization, indeed, was felt obligatory essentially only because of this, for it was prized irrespective of its actual outcome from the perspective of democratic governance.  As it turned out, the tyrannies of colonial masters were often simply replaced by local ones, but this was apparently not so important.  It was the “nation” that was to be “liberated,” not necessarily the poor unfortunates living there.

This was no real victory for the volk-nationalist paradigm, moreover, for it was far from clear that many of the resulting units were really “nations” at all, or at least not in the sense that volkism expected or demanded.  As an imported European-derived organizing principle for a largely emotional anti-European groundswell, volk nationalism had succeeded in producing a distaste for “alien” domination.  But while colonial populations might have been united in dislike of their foreign rulers, this is not nearly the same thing as making a real “nation,” particularly after the colonialists had gone.  The travails of post-colonial politics in some regions of the world – with arbitrary frontiers, ethnographic groups alternatively clumped together unwillingly or divided capriciously – have been well-remarked over the years.  From the perspective of volk nationalist pretensions, great swathes of the post-colonial world were a laughable mess.

It didn’t always have to be a mess, however, and indeed post-colonial rulers have tried to create distinct “selfhoods” among the peoples living with in the frontiers they inherited as the European colonial empires retreated.  But for this to work, and to be acceptable as a basis for real “nationhood,” one pretty much has to give up the volk-nationalist perspective.  These countries might become legitimate “nations,” but they had no real ability to project this nationhood backward upon history in a volkist European-style project of retrospective collective imagination.  Instead, the post-colonial world’s imagined projecting was to be principally forward: in building a genuine nation, one might say, where no such thing had existed before – or at least not within those particular frontiers.

Doing this, however, requires one to escape the conceptual straightjacket of volk-nationalist theory and embrace a more voluntarist concept – which is, at its core, about projecting a felt identity forward in time, by adopting it as a framework around which to orient future decision-making.  As the framers of the U.S. Declaration of Independence demonstrated, voluntarist national identity does not require any antecedent sense of separateness.  Their revolution, after all, was not the expulsion of an alien British  “Other,” but in fact grew out of a sense of grievance that London had so offended against the colonists’ rights as Englishmen that continued political cohabitation was no longer tenable.

In the context of 20th-Century decolonization, moreover, voluntarism also provides a better answer – both morally and practically – than the conceptual confusions of volk nationalism and the problems to which volkist myopias helped give rise in the developing world.   Unless one posits some mystical national selfhood that exists and functions independently of popular choice, it is hard to find progress merely in the replacement of a “foreign” tyrant by a local one.  To my eye, decolonization on volkist grounds thus has little to recommend it.  But the voluntarist conception of sovereignty in no way requires one to give up the idea of decolonization; indeed, it can claim for itself a much more profound ideal of “national liberation” than can the sort of shallow essentialism that would justify simply swapping a home-grown autocrat for one born somewhere else.

A voluntarist approach to decolonization would start from the assumption that no one anywhere, either in overseas colonies or in the far-off metropole itself, should be governed by a ruler he has not participated in choosing.  Through this prism, the principled basis of decolonization, therefore, is not the fact that colonial rulers were a different “people” per se but the fact that colonial subjects were denied democracy – that is, that their colonial overlords refused these populations their right to chose who ruled them.

There is no need for imagined communities of axiomatic ethnographic continuity, much less for theories of decolonization that run afoul of internal inconsistencies (e.g., the lack of a suitable pre-existing volk) and suffer from profound democratic and humanitarian deficits (e.g., the absurdity and immorality of making oppression seem legitimate when is undertaken by someone of one’s own color or geographic origin).  To my eye, decolonization – and indeed, more broadly, national sovereignty itself – only really makes sense when it can be grounded in choice, which is to say, voluntarism.

But here’s the rub.  It stands to reason that one only deserves “national sovereignty” if one is a “nation,” but in the voluntarist conception, as we have seen, this legitimacy derives from democratic consent.  One is not really a nation unless and until one’s population has so agreed.  This has potentially radical implications for questions of politics and law in today’s world, inasmuch as it is rather hard to say that dictatorial regimes meet this criterion.  After all, the people, not the government, is the locus of sovereignty.  If you aren’t in the volk-nationalist business of simply presuming your conclusion by positing the existence of a “nation” at the outset, however, you can’t really know whether a population considers itself to be that sort of “self” unless you ask.  And asking people for permission to represent them is not something that dictators commonly do.  For the committed voluntarist, therefore, the message would seem straightforward, though hardly simple to operationalize: no democracy, no sovereignty.

From a voluntarist perspective, many of those post-colonial governments discussed above have thus still not acquired either nationhood or sovereignty.  Nor, by this standard, can many longer-established countries in the world today – including some notably big and powerful ones – really be considered legitimate sovereign states.  It may be possible to get by, for many purposes, with concepts of “deemed” nationhood and sovereignty analogous to the “deemed legitimacy” of state and government recognition I discussed in my previous NPF posting.  (In a concession to the exigencies of day-to-day diplomatic life, for example, one might deem the politico-territorial status quo in such places to be nation-like enough to do business with it.  A state the population of which had relatively recently demonstrated a felt nationhood by democratic means, but which had subsequently lapsed back into autocracy, might also be accorded real legitimacy and sovereignty as a nation – even if its government could be given no more than a shallow sort of expeditious deemed legitimacy.)  This might be enough to let most of the world keep functioning much as it does today, on the surface at least, but this would not be the same thing as conceding genuine sovereignty.  One should not lose sight of the distinction.

I do not pretend that voluntarist conceptions would be easily applied in the real world.  Indeed, they would seem to raise important questions.  Operationalizing a voluntarist conception would still require struggling with many of the troubling practical problems seen, for instance, during the decolonization period, but which also remain important today.  How should one handle the geographic interpenetration of populations having differing or antagonistic national self-identities, for instance?  It is possible to strike some balance between effective organizational consolidation and fissiparous Balkanization?  From Turkey to Sri Lanka, from China to India, and from Burma to Sudan, such questions are very much with us four decades after the suppression of the Biafran or Katangan rebellions.

Those challenges are well known, but there are also broader ones related to the operation of law and politics among existing units of the international system.  It’s easy to speak of a distinction between democracies and governments that do not derive their authority (and ability to speak for a “nation”) from democratic consent.  The world is a complicated place, however, and seldom offers us such crisp dichotomies in practice.  How would one draw a line between those governments that deserve to be considered truly sovereign, and those that do not?

Moreover, even if we were to adopt a prudential doctrine of “deemed sovereignty” that would permit the continuation of many sorts of “normal” interactions even with tyrannies, the “no democracy, no sovereignty” maxim might have important implications when brought, recursively, back into contemporary diplomatic and legal debates about the limits of sovereignty.  In discussing whether (and when) concepts of “non-interference” rooted in national sovereignty might need to be displaced by norms permitting outside intervention, for example, a voluntarist might conclude that the right answer should differ depending upon whether one is talking about a democracy or a dictatorship.  (If it is offensive to transgress against someone else’s sovereignty, after all, it is perforce more egregious to meddle in the internal affairs of a democracy than in those of a dictatorship, because it is only the former that has real sovereignty to begin with.)  Indeed, “internal” denials of popular (i.e., democratic) sovereignty might themselves provide some justification for outside involvement, perhaps precisely in order to give support to genuine national sovereignty.

Conceptually and practically, the voluntarist conception of sovereignty is clearly a strong brew.  It is difficult, however, to defend the volk nationalist alternative, and it is hard to deny the logic of grounding the exercise of power – both by a sovereign state and as against others (e.g., in invoking the doctrine of “non-interfernce”) – in anything other than democratic consent.  True sovereignty lies with the population of those who are governed, without whose agreement to this state of affairs all our high-minded talk of sovereign rights and non-interference begins to look like a mere rationalization for, and enabler of, rank despotism.

If there is a lesson of July 4, it has to do with the indissoluble link between sovereignty and legitimacy grounded in democratic consent.  This is not an easy pill to swallow, for it has potentially dramatic implications for politics and international law in today’s world.  If we wish to have a coherent and consistent conception of nationhood upon which to found the inter-national system of modern geopolitics, however, we may have to swallow it all the same.

-- Christopher Ford

About Dr. Ford

Dr. Christopher Ford presently served until December 2016 as Chief Legislative counsel for the U.S. Senate Foreign Relations Committee, Chief Investigative Counsel for the Senate Banking Committee, Republican Chief Counsel for the Senate Appropriations Committee, Senior Fellow at Hudson Institute, U.S. Special Representative for Nuclear Nonproliferation, Principal Deputy Assistant Secretary of State, Minority Counsel and then General Counsel to the Senate Select Committee on Intelligence, and Staff Director of the Senate's Permanent Subcommittee on Investigations. A graduate of Harvard (summa cum laude), Oxford (as a Rhodes Scholar), and the Yale Law School, Dr. Ford was also ordained by Roshi Joan Halifax of the Upaya Zen Center as a lay chaplain in a lineage of Soto Zen Buddhism. He was a jujutsu student of the late Grandmaster Dong Jin Kim of the Jigo Tensin Ryu lineage, and is a member of Dai Nippon Butoku Kai with Sandan (3rd degree black belt) rank. Dr. Ford served from 1994 until 2011 as an intelligence officer in the U.S. Navy Reserve, and is a member of the International Institute for Strategic Studies, Chatham House, and the Council on Foreign Relations. Dr. Ford is the author of the books "China Looks at the West: Identity, Global Ambitions, and the Future of Sino-American Relations" (2015), "The Mind of Empire: China's History and Modern Foreign Relations" (2010), and "The Admirals' Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War" (2005). He also co-edited "Rethinking the Law of Armed Conflict in an Age of Terrorism" (2012). For a list of his publications, see The views he expresses here are entirely his own, and do not necessarily reflect those of anyone else in the U.S. Government.
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