Fighting Terrorism and Fighting Humanitarian Emergencies: Two Approaches to ‘Elastic’ Sovereignty and International Order

Abstract

This article aims to articulate how humanitarian action and counter-terrorism could be influencing the current shape of international relations through an examination of recent discourses on terrorism and internal displacement. These discourses have produced two corresponding approaches to state sovereignty that share the need to view sovereignty as measured in terms of the degree to which a state discharges its ‘sovereign responsibilities’ and yet that propose conflicting prescriptions for action against states deemed to fail in exercising such requirements. As internal sovereignty increasingly becomes challengeable by external sovereignty, this article concludes by suggesting how the two approaches can be synthesised in a fruitful manner.

Notes

¹ The views expressed in this article are strictly personal. The author would like to thank three anonymous referees at the Cambridge Review of International Affairs for their comments on the draft.

² One word of caution might be in order here. Since it is inspired by and begins with the analysis of some of the emerging discourses on the two issues and then proceeds to ponder on their implications for global order, this study necessarily takes on a speculative character and as such will need to be examined further vis-à-vis the current and future practice of state and other actors in international politics. It is the author's opinion that the value of this paper resides rather in its attempt to set out some (hopefully) heuristic points on the possible shape of state sovereignty and global order in the future—the attempt all the more important in the post 9/11 world.

³ The document also ends with: ‘The current and potential future linkages between terrorist groups and state sponsors of terrorism are particularly dangerous and require priority attention’ (Office of the President 2002b, 6).

⁴ In international legal terms, the notion of elastic sovereignty would be more in line with the minority, constitutive view (which posits recognition as a precondition of a state's legal rights) rather than the predominant, declaratory view (which sees it only as an acknowledgement of an existing state of law and fact) on the recognition of states (Brownlie 2003, 86–88). However, the analysis presented here is not intended as a query on the legal status of state recognition as such; it is rather an attempt to describe how new arguments on state sovereignty are being made to inspire collective political will in the face of two major global issues in the contemporary world: humanitarian emergencies and terrorism. In this sense, it still remains to be seen whether state practice based on the notion of elastic sovereignty will harden to the extent that it influences future legal thinking on the state. And, with regard to this last point, it is noteworthy that recent legal studies have produced arguments that problematise the conventional theories of state sovereignty. Gerard Kreijen (2004, especially Chapters 4 and 6), for instance, argues that the creation of new juridical states in sub-Saharan Africa in disregard of their substantive effectiveness as sovereign states led to their subsequent failure. A remedy to this situation, he argues, might be the reintroduction of the effectiveness principle in the concept of the state and the revival for that purpose of a UN trusteeship system for failed states. Gerry Simpson (2004) shows how the international order since 1815 has managed inequality between states under its legal umbrella, thus legalising the presence of Great Powers and the control of ‘outlaw states’. He does this by articulating that the principle of sovereign equality in the legal order has always operated through an interplay between sovereign equality and two other legal forms: legalised hegemony, which endows a set of privileges on Great Powers, and anti-pluralism, which distinguishes states in accordance with their ethical, material and intellectual power. Broadly speaking, these studies intend to scrutinise the principle of state sovereignty in a way that puts its traditional ‘hard-shell’ image into question.

⁵ This trend may also be seen in connection with the recent debates in international law on the role and value of the democratic norm for international order (e.g. Franck 1992; Marks 2000; Fox and Roth 2000). For instance Anne-Marie Slaughter points out that in a world of liberal democracies the sovereign state is being disaggregated into ‘its separate, functionally distinct parts’, which are ‘networking with their counterparts abroad, creating a dense web of relations that constitutes a new, trans-governmental order’ and are sustained by the existence of global problems such as terrorism, organised crime and environmental degradation. This emerging ‘trans-governmentalism’, she argues, promises to provide ‘new mechanisms … to expand the community of liberal democracies’ to non-liberal states (Slaughter 1997, 184, 185; see also Slaughter 2004).

⁶ There have been different regimes concerning state sovereignty and intervention in the past (Finnemore 2003), and the difference between those and the one suggested here may be twofold. The latter would differ in terms of its focus on terrorism and humanitarian emergencies, neither of which necessarily gained such prominence in the international arena in the past. More broadly, it would be different in its normative orientation, i.e. the presumption that international action would be initiated on the basis of normative codes revolving around human rights.

⁷ NATO's intervention in Kosovo in 1999 took place without such authorisation and has triggered much debate on whether and to what extent this intervention can be deemed legal and/or legitimate. Essentially there appear to be three schools of thought: (a) that it was illegal; (b) that it should be treated as an excusable or legitimate exception to the general rule governing military intervention; and (c) that it heralds a change in favour of more frequent use of intervention for humanitarian purposes in the future (see Holzgrefe and Keohane 2003). In any event, one thing that becomes reasonably clear from this debate is that the Kosovo intervention caused a lot of discussions precisely because it was in violation of the current UN regime on military intervention, which still centres on Chapter VII authorisation.