20 Jan Soft Statehood?
It would be tempting to join Opinio Juris’ discussion on soft law of a few weeks ago, but having written quite a bit on the topic going back to the mid-1990s, I thought I’d pay some attention to a lovely little story that ran in the New York Times about a month or two ago (I forgot to date my clipping… Typical). The story concerned the death of Prince Giorgio, ruler of what the NYTimes referred to as the Principality of Seborga. Prince Giorgio was apparently first elected prince in 1963 and then elected for life in 1995. He went through life as His Tremendousness (wouldn’t we all…), set up a cabinet and a constitution, minted money and stamps and even mobilized a standing army, albeit one consisting of a single individual (then again, Seborga counts only a little over 300 inhabitants). Being surrounded by Italy and close to France, Seborga had found recognition of sorts by some 20 states, mostly in the not-so-formal way of honorary consuls. And so as to underline his royal eccentricity, Prince Giorgio’s most noteworthy legislative act, it appears, was the adoption of a law to stimulate smoking.
The intriguing question the story represents is why few of us think of Seborga as an independent, sovereign state, whereas we have no problem in thinking of Canada, or Brazil, or even Luxembourg, as an independent state. Luxembourg is not much bigger than Seborga; Brazil is, arguably, far younger than Seborga (which, according to the NYTimes, has been a principality since at least the year 1079); and it is arguable that Canada does not, unlike Seborga, have its own head of state. So where does the difference stem from? It all seems rather arbitrary, really. The obvious formal answer would be to refer to recognition by other states, but this too seems to remain rather arbitrary: there seems to be no self-evident reason why the rest of the world should have recognized Luxembourg but not Seborga. In other words: even the category of statehood, much like many other international law categories, may be seen as somehow fluid.
With this in mind, shouldn’t we come to conceptualize statehood in gradations? This would allow us to come to terms with an entity such as Kosovo: not wishing to be part of Serbia, but not yet fully to be regarded as ‘hard state’ either. It would help us classify and categorize entities such as Somalia as a ‘soft state’ – surely, this sounds much nicer than ‘failed state’ while conveying much the same message. It would make some sense of the Holy See, the one entity where the population cannot reproduce itself. And wouldn’t Belgium be better off divided into two, three or four soft states rather than one fragile hard state with a hopelessly complicated constitutional set-up the only thing preventing it from breaking up completely?
When writing about soft law in the mid-1990s I aimed to ridicule the concept of soft law by suggesting that surely, we would never come to speak of soft responsibility to be determined by soft tribunals, yet this is precisely what has happened in the intervening years: non-compliance procedures are established in order to assist states with ‘compliance problems’. With this in mind, recognition of the concept of soft statehood can only be a matter of time…
The proposal to consider “conceptualiz[ing] statehood in gradations” might be compared to Allen Buchanan’s suggestion for “unbundling” the notion of sovereignty (which originates with Robert Keohane*), that is, unpacking the “set of powers, claim rights, liberties, and immunities that have traditionally been thought to define sovereignty.” Several of the reasons that motivate his argument are identical to yours, but one reason in particular he proffers is intriguing: “Once we take the idea of unbundling sovereignty seriously we must consider the possibility that the contrast between a ‘state-centered’ and a ‘world-state’ system will become blurry. The more political differentiation there comes to be within states (the more pervasisve sovereignty-eroding, intrastate autonomy arrangements become) and the stronger international legal structures become, the more difficult it will be to draw a sharp contrast between a state-centered and a world-state system.” (Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law, 2004: 56-57). Of course the political and legal situations that have prompted such proposals (i.e., military intervention for ostensibly humanitarian purposes) need not be the only cases in which we contemplate attributing something less than the full set of features and powers traditionally said to belong to the full-fledged sovereign nation-state. *See… Read more »
Just a small correction. It is not arguable that Canada does not have the head of state. By the constitution this is the Queen, which happens to be the queen of another country. In absence she is represented by the Governor-General (Michaëlle Jean right now), who perform the duties of the head of the state. Although it is customary for the Governor-General to follow the suggestions of the Prime Minister and the cabinet, she retains pretty broad rights of the royal prerogative and can unilaterally use these powers in exceptional constitutional crisis situations. So you have to find another example 🙂
What a fascinating post – thanks for being with us on OJ. I have two reactions that seem, on the surface, contradictory – but perhaps they are not. On the one hand, the idea of gradations of sovereignty makes a lot of sense to me, in part to deal with what, in the dim past, might have been trust territories, or situations like Kosovo. On the other hand, and unlike many professors of international law, I am skeptical of efforts to reduce, dissolve, or otherwise de-sovereignize sovereignty – both descriptively and normatively. Descriptively, it seems to me that one of the lessons of the rise of China for the developing world is that ‘hard’ sovereignty is an excellent plan, and anyway, as David Rieff points out, a multipolar world is a more competitive world, not a more cooperative one. So I don’t think the world is headed in the direction of less importance attached to sovereignty (and I don’t see you as suggesting that, either, instead that even a world that is more focused on the privileges of sovereignty would do better to have a graduated gateway, particularly if sovereignty means more, rather than less). Normatively … when I look… Read more »
I doubt that it is true that “many professors of international law…[seek] to reduce, dissolve, or otherwise de-sovereignize sovereignty [qua sovereignty]- both descriptively and normatively.” Rather, not a few intend to better align the theory of sovereignty (which is neither wholly either descriptive or normative but a bit of both) with existing legal and political practice as well as with the legal and political norms and values viewed salient today in a way they were not heretofore. In this sense, then, as Jean Cohen has written, we are essentially “strengthening international law by by updating it, making explicit the particular conception of sovereignty on which it is now based and showing that is compatible with cosmopolitan principles inherent in human rights norms.” Indeed, we might say this is an attempt to give full legal expression to the idea of the “sovereign equality of states.” In other words, “Cosmopolitan right can supplement–but not replace–sovereignty-based public international law [an endeavor to ‘democratize’ rather than ‘abolish’ sovereignty]:” “There has, to be sure, been a partial disaggregation of sovereignty in the sense that some functions once considered the prerogative s of the sovereign state are now placed in the hands (authority) of supranational bodies: courts, the Security… Read more »