Jus Post Bellum Symposium: In Defense of a Central Role for Sovereignty in the Jus Post Bellum Conversation

by dov jacobs

[Dov Jacobs is an Assistant Professor of International Law at the Grotius Centre for International Legal Studies, Leiden University and comments on international law issues at Spreading the Jam.]

Carsten Stahn, Jennifer Easterday and Jens Iverson have edited a comprehensive and rich volume on the law applicable in the aftermath of conflict, also known as Jus Post Bellum. This book covers a number of key areas on the timing and scope of jus post bellum, as well as timely discussions on the various bodies of law that might be relevant in that respect. As such it presents an important contribution to the legal, philosophical, sociological and political debates that occupy or should occupy those tasked with dealing with post-conflict situations.

One such debate relates to the relationship between jus post bellum and sovereignty and this is what I devolved my chapter in the book to. In the following blog post, rather than simply summarize the content of the chapter, I would like to briefly discuss the thinking behind writing it.

The starting point for me was the impression that sovereignty was often either forgotten or discarded to the periphery when discussing just post bellum issues. This was, on first analysis, intriguing because it is, or at least has been, one of the cornerstones of modern international law, and more generally, of international relations.

What I mean by « discarded » is that there there seems to be very little serious debate about sovereignty among a number of policymakers. This is possibly not that surprising in fact. “Sovereignty” is not a very popular term today in international law. It is considered to be an antiquated concept in our transnational and global world. More specifically, sovereignty is seen as an obstacle to the progressive spread of human rights. Sovereignty justifies claims by certain states that they are free to deal with « internal disturbances » and to reject any intervention (humanitarian or otherwise) in their domestic affairs. As a result, sovereignty is often presented as a problem, something to be fought and limited in order for more noble agendas to be realized.

In a way, sovereignty seems to have become the international law equivalent of Sauron’s eye in the Lord of the Rings : a vague, mostly undefined, ominous presence looming in the background and projecting its evil powers in various areas of the land.

What my chapter in the book aimed at doing is bring sovereignty back into the conversation in a more neutral way. This aim was grounded on two ideas. The first one is that sovereignty cannot be seen as inherently « good » or « bad ». More specifically, it is not ontologically an obstacle to human rights or the rule of law. In this sense, it is important not to confuse the empirical reality of how the concept evolved and is used on the discourse, and the concept itself. Which leads me to the second idea : sovereignty, in one form or another is a sociological necessity. What I mean by this is that sovereignty, in its simplest definition of a delegation of power (legislative, executive, judicial, police, administrative, etc.) to centralized authorities is an inevitable phenomenon in any human community that reaches a critical mass. This might seem like an obvious point to make, but it does appear to be forgotten in a lot, if not most of discussions on jus post bellum. This is illustrated in discourse and policy, for example, in what is, in my opinion, the over-emphasis on the role of civil society in providing basic social services, which should clearly be noted to be a short term solution, rather than a serious long term alternative to state institutions.

There is one challenge to my claim that sovereignty-related issues are underappreciated that I did not consider in my chapter and that I want to consider here. In a nutshell, I have been told that my concerns should be alleviated by the considerable focus on institution-building and capacity building, and more generally state building, as well as on the broader promotion of the rule of law and democracy. As a result, the argument goes, I should not be too bothered by the formal absence of the term « sovereignty » itself in most policy discussions on the issue.

I would like to venture several answers to this.

First of all, I do acknowlege that my concern does not necessarily have the same weight depending on the epistemic community or stakeholder concerned. Indeed, the idea that sovereignty is to be viewed with skepticism is mostly prevalent in the human rights discourse, as well as in certain circles of international criminal law. But given the weight of this discourse in the post-conflict discussions, as well as its pervasiveness in international affairs and in all branches of international law, I think the analysis remains valid.

Second of all, I think that there are areas of international law where it makes sense to continue to talk specifically about sovereignty, rather that resort to peripheral issues such of capacity building or rule of law. One such area which I discuss in my chapter is that of self-determination and statehood, which is an obvious component of a number of conflict situations and where issues of sovereignty are central. In those cases, sovereignty is not so much an obstacle to something else (like human rights) but something that is fought over by two sides and should therefore be taken seriously.

Third of all, more conceptually, I think that the concept of sovereignty captures something the complex relationship between the individual and the collective that is neither captured by the vague notion of rule of law (which is often shorthand for a bundle of human rights) or the idea of democracy (which is either also assimilated to human rights, or focuses too much on the consent of the « people » rather than on the authority of the sovereign). More specifically, what sovereignty implies which is not really dealt with by other concept is that there is something that the individual relinquishes to the sovereign, be it the capacity to legislate, execute laws without renewed consent everytime and the exercise of legitimate force to that effect. This idea of relinquishment of some individual choice (be it temporary or conditional) does not square well with the individual-centric logic that is at the heart of human rights.

In conclusion, I believe that sovereignty in a broad sense is a permanent feature of human institutions and, as a concept, helps us understand in ways that other concepts do not, the dynamic interactions between the individual, the collective and the inter-collective levels. In this sense, the ambition of the chapter, while proposing its own model to understand these dynamics through a revisiting of Georges Scelle’s role-splitting theory, was ultimately relatively humble and essentially methodological : by trying to wish away « sovereignty » for ideological reasons, a number of people, notably in the jus post bellum field, are depriving themselves of a key concept to understand the world they are trying to improve, thus making their own life harder, and, more importantly, drastically reducing their chances of success.

http://opiniojuris.org/2014/05/08/jus-post-bellum-symposium-defense-central-role-sovereignty-jus-post-bellum-conversation/

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