anghie, antony(2009) sovereignty

ANRV392-LS05-14 ARI 24 September 2009 19:52

Rethinking Sovereigntyin International LawAntony AnghieS.J. Quinney College of Law, University of Utah, Salt Lake City, Utah 84112-0730;email: [email protected]

Annu. Rev. Law Soc. Sci. 2009. 5:291–310

The Annual Review of Law and Social Science isonline at lawsocsci.annualreviews.org

This article’s doi:10.1146/annurev.lawsocsci.4.110707.172355

Copyright c© 2009 by Annual Reviews.All rights reserved

1550-3585/09/1201-0291$20.00

Key Words

self-defense, democracy and international law, imperialism

AbstractSovereignty has always been a controversial topic in international law.The most prominent attempts to rethink sovereignty in recent timeshave arisen out of the policies of the Bush administration, particularly itsconceptualization of self-defense and its attempts to promote democ-racy worldwide. This review explores the debates surrounding theseinitiatives and the larger theoretical issues they raise about the relation-ship between international law and sovereignty. International law haslong struggled with the problem of how sovereign states that make in-ternational law can also be bound by it. Self-defense raises this problemin a particularly acute form because it is one of the fundamental rightsof sovereignty and because it can be seen to precede the law itself. Thereview also explores the various ways in which the relationship betweendemocracy and international law has been examined in the recent lit-erature. Many of the analyses of sovereignty rely, either implicitly orexplicitly, on distinctions between different types of states—democraticversus nondemocratic or, more broadly, responsible versus irresponsi-ble states. The broad argument of this review is that the Bush admin-istration’s policies attempt to create an international legal system thatresembles in many ways a return to the imperial international law of thenineteenth century.

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INTRODUCTION

Sovereignty is a topic that has obsessed and pre-occupied scholars of international law throughthe centuries. Debates about the nature ofsovereignty and its relationship to law havebeen unrelenting; the subject has never beenuncontroversial, and, indeed, each phase of thehistory of international law can be defined bythe character of these debates. For instance,since its emergence international human rightslaw has challenged the basic tenet of classi-cal conceptualization of sovereignty, which as-serts that a sovereign government has abso-lute legal authority within its own territoryover its citizens. Since the 1990s, scholars havepostulated the diminution of sovereignty inan increasingly interdependent world (Schreur1993), in part as a result of the collapse of theSoviet Union, the triumph of the free mar-ket, the consolidation of the European Union(Schieman 2007), and the intensification ofglobalization. International law, classically, isthe law that governs relations among sovereignstates. In a parallel development, various otherentities—multinational corporations, interna-tional organizations, and new social move-ments, for instance—have been studied asalternative sites of authority in the interna-tional system (Rajagopal 2003). Furthermore,the growing number of ethnic conflicts in Asia,Africa, and Eastern Europe has raised questionsabout the viability and future of the sovereignstate (Brooks 2005), and large-scale atrocitiesin regions such as Kosovo and Rwanda haveled to searching attempts to reconceptualize“sovereignty as responsibility” (Int. Comm.Interv. State Sover. 2001) and to revisit thetheme of humanitarian intervention (Alston &Macdonald 2008, Orford 2003, Engle 2007).At a more theoretical level, the fundamen-tal question of how law affects the behaviorof sovereign states continues to be the sub-ject of ongoing inquiry (Goodman & Jinks2002–2003).

Many of these debates continue and de-velop. But the most radical attempts to re-think sovereignty that have occurred in the

current decade have all, in one way or another,originated in the events of September 11, 2001,and its sequelae, most significantly the Bushdoctrine of preemptive self-defense (PESD),the Iraq War, and the broader war on terrorlaunched by the United States. Following 9/11,the theme of sovereignty and security has beena major focus of scholars who have attemptedto assess how terrorism and responses to ter-rorism have challenged or changed fundamen-tal understandings about sovereignty, war, andinternational order (Brunnee & Toope 2004).In short, whereas the events of the 1990s ap-peared to herald the erosion of sovereignty, sig-nified, for instance, by the creation of the WorldTrade Organization in 1994, the 9/11 attacksprovoked a reassertion of sovereignty. This re-assertion inevitably disrupted an internationalsystem that, throughout the 1990s, had beensteadily developing a number of far-reachinginternational regimes in fields such as inter-national human rights law, economic law, andcriminal law.

The policies followed by the Bush admin-istration are best articulated in The NationalSecurity Strategy of the United States of America(NSS) as presented in 2002 and 2006 (Bush2002, 2006), and I have focused on these docu-ments as a means of reviewing the broader de-bates about sovereignty and international law.Here I examine the nature of these challengesby focusing on two major aspects of the Bushpolicies. First, Bush’s PESD doctrine attemptsto expand the legal use of force and is intimatelyconnected to the concept of illegal or roguestate against which such force may be directedin accordance with the new doctrine. Second,the Bush doctrine rethinks and revives the im-portance of what might be termed democraticsovereignty for the international order and itspotential role in preventing terrorism and en-suring international peace and stability. In thisreview, I attempt to sketch the debates about thelegal status of the Bush administration policies.Furthermore, however, I seek to place theseinitiatives in a more theoretical and historicalcontext. I argue, more broadly, that these ef-forts to rethink sovereignty resemble a return

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to the international law of the nineteenth cen-tury (Koskenniemi 2003).

Nineteenth-century international law per-mitted the sovereign recourse to force. In addi-tion, it created and sought to enforce distinc-tions between civilized and uncivilized stateswith the argument that one set of laws was ap-plicable between civilized states in their mu-tual dealings but that another set of practiceswas justified in relation to uncivilized states.Most significantly, within this jurisprudence,uncivilized states were not properly sovereign;as such, they lacked rights under internationallaw and could thus be legally attacked and con-quered, all in the name of transforming and civ-ilizing them. Viewed historically, the Bush doc-trines, particularly regarding democracy andsovereignty, extend certain arguments that hadbeen developed, through human rights law overroughly the past 20 years. Almost paradoxically,however, an extension of these late-twentieth-century human rights–based arguments, whencombined with doctrines of preemption, serveto recreate something like a nineteenth-centurysystem of international law, one that furtheredand entrenched imperial relations.

International lawyers have long grappledwith the conundrum that the sovereign statecreates the law and yet is supposed to be boundby it. The tensions inherent in this position areespecially pronounced when the very survival ofthe sovereign entity is seen to be at stake. Thus,the Bush administration’s emphatic assertion ofsovereignty in its most basic and primordialform—the right, in essence, of self-defense—raised profound and enduring questions aboutthe relationship between sovereignty and inter-national law and, indeed, between sovereigntyand law itself.

THE BUSH DOCTRINE ANDANTICIPATORY SELF-DEFENSE

The right of self-defense is regarded as a rightinseparable from and intrinsic to sovereigntyand could even be regarded as the very essenceof sovereignty. To the sixteenth-century juristFrancisco de Vitoria (1530 [1917]), “In war

everything is lawful which the defense of thecommon weal requires. This is notorious, forthe end and aim of war is the defense andpreservation of the state.” Thus, law itself isconstructed around the core principle of thesovereign right of self-defense. The idea ofself-defense or self-preservation is powerfullyaffirmed in natural law by scholars such asGrotius (1625 [2005]) and, furthermore, pro-vides the conceptual foundations of just wartheory, which has profoundly influenced West-ern thinking on the ethics and legality of warsince the time of Augustine. The continuingcentrality of self-defense in the internationalsystem is further suggested by the fact that theInternational Court of Justice (ICJ) ruled thatit may be legal to use even nuclear weapons inself-defense—this despite the fact that the use ofsuch weapons could very well trigger a nuclearwar and, furthermore, would in all likelihoodviolate fundamental principles of internationalhumanitarian and human rights law (Int. CourtJustice 1996).

For precisely these reasons, the scope of self-defense has posed enduring challenges to in-ternational law—a very broad concept of self-defense such as, for example, an argument that astate can use force against another party that hasviolated a commercial treaty, would expand thejustifications for engaging in war (Grotius 1625[2005]). The Kellogg-Briand Pact of 1928 wasa culmination of the international community’sattempts to outlaw war; but even here, it wasimplicitly understood that war in self-defensewas permitted (Simma 1994). In contemporarylaw, Article 2(4) of the UN Charter basicallyprohibits war, with two exceptions: first, whenwar is authorized by the Security Council actingunder its Chapter 7 powers; and second, in self-defense. Article 51 of the UN Charter statesthat “[n]othing in the present Charter shall im-pair the inherent right of individual or collectiveself-defense if an armed attack occurs against amember of the United Nations.” It is notablehere that the right of self-defense is character-ized, even within the charter, as being inherentto sovereignty, prior to the modern law of thecharter itself.

www.annualreviews.org • Rethinking Sovereignty in International Law 293

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The scope of this right has always been thesubject of debate. Nevertheless, as one eminentscholar argued, following the tragic events of9/11 and the war on terror declared by the Bushadministration, “International law on the use offorce, its content and effectiveness, is now theobject of more speculation than ever before”(Gray 2004). The Bush administration’s doc-trine of PESD, which has caused this specula-tion, asserted:

For centuries, international law recognizedthat nations need not suffer an attack beforethey can lawfully take action to defend them-selves against forces that present an imminentdanger of attack. Legal scholars and interna-tional jurists often condition the legitimacyof preemption on the existence of an immi-nent threat—most often a visible mobilizationof armies, navies, and air forces preparing toattack.We must adapt the concept of imminent threatto the capabilities and objectives of today’sadversaries. . . .The United States has long maintained theoption of preemptive action to counter a suf-ficient threat to our national security. Thegreater the threat, the greater is the risk ofinaction—and the more compelling the casefor taking anticipatory action to defend our-selves, even if uncertainty remains as to thetime and place of the enemy’s attack. Toforestall or prevent such hostile acts by itsadversaries, the State will, if necessary, actpreemptively.The United States will not use force in all casesto preempt emerging threats, nor should na-tions use preemption as a pretext of aggres-sion. Yet in an age where the enemies of civi-lization openly and actively seek the world’smost destructive technologies, the UnitedStates cannot remain idle while dangers gather(Bush 2002, p. 15).

Notably, President Bush sought to justifyhis position by invoking the past—centuriesof international law—to meet the suddenlyand tragically revealed needs of the present.

President Bush’s assertion of this doctrineprompted a number of other heads of state todeclare that they too would adopt such a pol-icy. These included John Howard of Australia,Sylvio Berlusconi of Italy, Tony Blair of GreatBritain, Junichiro Koizumi of Japan, and ArielSharon of Israel (Gathii 2005). In contrast, thedoctrine was denounced by the vast majority ofnonaligned countries and also by France andGermany (Gathii 2005).

President Bush reiterated the applicabilityof the doctrine in the 2006 NSS, asserting that

[w]hen the consequences of an attack withWMD are potentially so devastating, we can-not afford to stand idly by as grave dangersmaterialize. This is the principle and logic ofpreemption. The place of preemption in ournational security strategy remains the same.We will always proceed deliberately, weighingthe consequences of our actions. The reasonsfor our actions will be clear, the force mea-sured and the cause just (Bush 2006, p. 23).

As Tuck (1999) has pointed out, the doctrineof preemption is clearly a “morally fraught mat-ter, as by definition the aggressor has not ac-tually been harmed, and his judgement aboutthe necessity of his action might well be calledinto question both by the victim and by a neu-tral observer” (p. 18). Notably, the UN Charterdoes not provide explicitly for preemption, andthe difficult question has naturally arisen as towhether a state must actually wait for an armedattack to occur before taking defensive action,as a literal reading of the charter suggests (for anoverview, see Jennings & Watts 1992, pp. 420–22; Franck 2000). Scholars are divided on thisissue. One view asserts that a highly circum-scribed right to anticipatory self-defense existsunder customary international law and that thisresidual right survives the UN Charter. Argu-ments in favor of anticipatory self-defense havefocused on an 1837 incident between Canadaand the United States that led U.S. Secretaryof State Daniel Webster to assert what is nowtermed the Caroline doctrine—that anticipa-tory self-defense is permitted in the narrow

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circumstances in which “there is a necessity ofself-defense, instant, overwhelming and leavingno choice of means and no moment of deliber-ation” ( Jennings & Watts 1992). Clearly, how-ever, the Bush doctrine progresses well beyondanticipatory self-defense, even as formulated bychampions of the Caroline doctrine, as it encom-pass not only imminent threats, but also emerg-ing threats. This aspect of the doctrine appearssomewhat obliquely in President Bush’s (2002,p. 15) assertion that “[t]he United States willnot use force in all cases to preempt emerg-ing threats, nor should nations use preemptionas a pretext for aggression.” While emphasiz-ing that self-defense against emerging threatsmust be distinguished from aggression, nothingis suggested as to how this might be persuasivelyaccomplished.

The revolutionary character of the doctrinewas immediately recognized in a number ofdifferent ways. On one hand, the U.S. legaladvisor of the time, William Howard Taft IV,attempted to present a more limited versionof the doctrine. He asserted that “after theexhaustion of peaceful remedies and a careful,deliberate consideration of the consequences,in the face of overwhelming evidence of animminent threat, a nation may take preemptiveaction to defend its nationals from unimagin-able harm” (Taft 2002). Taft stressed here theelement of “exhausting peaceful remedies.”On the other hand, the then Secretary ofthe United Nations, Kofi Annan, declared inemphatic terms that the Bush doctrine “repre-sents a fundamental challenge to the principleson which, however imperfectly, world peaceand stability have rested for the last 58 years”(Annan 2003). He promptly initiated a studyof the issue of self-defense and appointed ahigh-level UN panel to inquire into the matter(United Nations 2004). The doctrine assumeda major significance for the internationalsystem not only because of its abstract impli-cations, but also because it had the potential tobe used to justify the looming war against Iraq.

An enormous body of scholarship—policyoriented, legal, philosophical—was generatedby this issue, and this is hardly surprising, as

war is one of the central preoccupations in in-ternational law (Kennedy 2006). A review ofthe positions taken reveals markedly contrast-ing approaches to sovereignty and the natureand operation of international law.

Analyses that adopted a strictly doctrinalapproach focused on the Bush doctrine’s con-travention of the explicit language of the UNCharter and, furthermore, its extension well be-yond the bounds of the Caroline doctrine. Formany scholars, this in itself rendered it illegal(Bothe 2003, Brownlie 2003, Gray 2004). Thiswas even more so because the law preventingthe use of force, as embodied in Article 2(4) ofthe UN Charter, would have been violated bypreemptive war, and this in a situation in whichArticle 2(4), which prohibits the use of force,has a special character; it is arguably a jus cogensnorm—that is, a norm that states are compelledto accept regardless of whether they had in factconsented to it.

Scholars supporting the Bush doctrine de-parted from a narrow, literal approach to theUN Charter. The 2002 NSS had emphasizedthe fact that the doctrine of PESD was a re-sponse to new threats—most particularly, torogue states and terrorists and to massive dam-age that could be wrought by modern weaponryand, in particular, nuclear weapons. Advocatesfor the doctrine thus argued that it was not adeparture from the law as it was understoodso much as it was an attempt to adapt an an-cient doctrine—one approved of by the great ju-rists, Grotius and Vattel—to these new realities(Greenwood 2003, Sofaer 2003, Zoller 2004).

More detailed arguments that followedthese general lines examined carefully the his-torical circumstances that supported the Caro-line doctrine to demonstrate that it was devisedin a particular context, to address a broaderpolicy. The basic policy underlying the Carolinewas to enable states to protect themselves frommassive harm; in current circumstances, inwhich such harm could result from the use ofchemical or nuclear weapons or terrorist at-tacks, the Bush doctrine became essential and,indeed, was entirely consistent with the Caro-line. Rather than focusing on the actual words of


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the UN Charter, then, by presenting the rule asadvancing various historically established poli-cies, it become possible to argue that the Bushdoctrine is not only consistent with but actuallyfurthers the broad purposes of the UN Charter(Sofaer 2003). It must be noted, however, thateven advocates of preemption differ in theircharacterization of the doctrine. For Sofaer(2003), for instance, the “imminence” aspect ofthe Caroline means something like “likelihoodof attack,” which coheres more with the ideaof “emerging threats,” whereas Greenwood(2003) is more conservative in insisting that“the requirements that the attack be imminentcannot be ignored or rendered meaningless.”

Given the significance of the issue—thepreservation of the sovereign state in the inter-national system and the constraints the UnitedNations imposes on states—the Bush doctrineinevitably revived broader historical debatesabout the very character and effectiveness ofinternational law and institutions. Internationalrelations scholars such as E.H. Carr and HansMorgenthau (who had been initially trained asa lawyer) had powerfully argued, many decadesago (e.g., Carr 2001 [1939], Morgenthau 1962[1948]), that interests drive state behavior andthat international law had very little impact onstates when it did not correspond with theirinterests (Goldsmith & Posner 2005). Giventhis, and given too that international law lackedthe support of effective enforcement mecha-nisms, it was foolhardy to rely on internationallaw and institutions to create internationalpeace and was entirely naive to imagine that amatter as crucial as self-preservation could beleft in the hands of international institutions(Yoo 2004). These classic arguments resonatedwith proponents of the Bush doctrine, whodenounced the United Nations’s ineffec-tiveness and, in particular, its failure to actagainst Iraq despite its repeated violations ofSecurity Council resolutions. Broadly, theUnited Nations had attempted to create a newsystem of international law and order, but itsinadequacies entitled states to resort to anolder law—represented by the scholarship ofGrotius and Vattel, who had argued in favor

of preemptive war—in certain circumstances(Sofaer 2003). Terrorism and the problemof weapons of mass destruction (WMD) hadonly emphasized the importance of a properstrategy. The Bush doctrine was completelynecessary, and, indeed, any other responsein this Hobbesian world would have been adereliction of a sovereign’s duty to his or herpeople. In this view, the law of the UnitedNations was obsolete, and a return to morefundamental ideas of sovereignty and orderwas required (Glennon 2003b).

SOVEREIGNTY ANDROGUE STATES

Bush (2002, p. 14) stated in the NSS, “We mustbe prepared to stop rogue states and their ter-rorist clients before they are able to threaten oruse WMD against the United States and ourallies and friends.” Given that preemption wasdirected principally at rogue states, the questionimmediately arose of how such states were to bedefined and whether international law playedany role in this process. In asserting that a dif-ferent set of rules applied in relation to roguestates and that such states could be attackedeven though they had not themselves engagedin any direct aggression, the Bush administra-tion relied on arguments that had been mademuch earlier by Kant (1991 [1795]).

It was clear that Iraq, Iran, and NorthKorea, notoriously members of the “axis ofevil,” were regarded as rogue states by theUnited States. Thus, the question arose ofwhether the war against Iraq—only looming atthe 2002 enunciation of the doctrine—could beseen as an example of the Bush doctrine in ac-tion, an instance of preemption against a roguestate. The rhetoric used by the Bush adminis-tration to sell the war to the public was entirelyconsistent with the basic tenets of the doctrine:A rogue state that possessed hidden WMDthat presented at the very least an emergingthreat to the United States had to be dealt with.Scholars argued, then, that the war could havebeen justified as a war of preemption—and thisin itself provides an indication of the reach of

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the doctrine (Yoo 2003, Taft 2002). Several ofthese scholars scrupulously linked preemptionwith international law and institutions, andUN Security Council condemnations of suchstates were presented as evidence of their roguestatus. Seen in this way, the United States wasmerely taking action against states that have al-ready been determined to be aberrant by a UNSecurity Council that was too timid to followthis condemnation with real consequences.

One important characteristic of the roguestate was the relationship between states andterrorist activity. Under the Bush doctrine,force may be used, not only against emergingthreats, but also against states complicit in actsof terrorism. Thus, states are responsible foracts of violence committed by terrorists oper-ating within their borders or with their sup-port. Sofaer (2003), for instance, argues thatthe restricted Caroline doctrine of self-defensewas limited to situations in which a “state isboth willing and able to use its police powersto prevent the attack sought to be pre-empted”(p. 220). In cases in which a state lacks such ca-pacity or willingness, then it may be subjectedto the expanded version of preemption articu-lated in the Bush doctrine. The traditional lawof state responsibility held a state responsiblefor such actions only if a very clear nexus ex-isted between the state and the group causingthe violence. The Bush doctrine, by contrast,proposes that a state can be held responsible—and be attacked—even if it participated onlypassively in the operations of these terroristor armed groups. The war against Afghanistanraised many of these issues, as Afghanistan hadnever directly attacked the United States, whichnevertheless went to war in exercise of its rightof self-defense.

Broader attempts to give the term roguestates a legal character suggested, for in-stance, that they could be defined as statesthat possessed WMD, engaged in large-scalehuman rights violations, and had a propensityto use force in violation of international law(Slaughter 2003). Awkwardly, subsequentevents—the Iraq War, Guantanamo, and thescandal of Abu Ghraib—indicated that such

definitions had the potential to include theUnited States. On the whole, however, it seemsclear that, for the Bush administration, theterm rogue state was not one to be defined byinternational standards as such. Rather, for theadministration, it referred to states that theUnited States sees as implacably, ideologicallyhostile and possessing, or seeking to possess,weapons that could cause great harm and tostates that harbor or support terrorists. Allthe proponents of preemption attempt toprescribe limits to such a potentially largedoctrine: Thus, the threat must be imminent,the dangers overwhelming, and so forth. Butnone of these limits has any real effect becausewhat is emphasized most, even if implicitly inthe arguments made for preemption, is thepower of the sovereign entity to decide that itis the victim of emerging threats. Self-defensehas always been problematic because of thesubjective element involved; this in itself hasnot prevented the ICJ from making importantrulings as to whether claims of self-defensewere justified or not. It has stated in severalcases that the state claiming self-defense hadacted illegally. But PESD exacerbates theproblem of subjectivity even further, makingit difficult if not impossible to hold a stateaccountable for violence applied in the name ofpreemption. Attempts to present the doctrineas responsible and precise keep stressing, forinstance, the importance of acting on soundintelligence. But the disastrous failures ofthe Bush administration with regard to theintelligence connected with the Iraq Warraise profound questions as to how states thatcommit such catastrophic mistakes are to beheld internationally accountable.

For the reasons outlined, the Bush doctrineand its expanded concept of self-defense comevery close to making the use of force legal.In this respect, it resembles in many ways thesituation in the nineteenth century because thepositivist philosophy that prevailed at that timegave sovereigns unfettered power, and thisincluded the right to go to war. The only factorthat constrained states and discouraged themfrom going to war was the balance of power, the


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political and military consequences that wouldfollow any act of war. The political systemin place discouraged action that was legallypermissible. Notably, however, that balanceof power system, when it finally collapsed,did so with catastrophic consequences: thelarge-scale violence of the Great War. Inaddition, of course, as advocates for the rightto preemption argue, terrorist groups presenta major threat to world order, and such groupsare not subject to the systems of deterrence andbalance that restrain states in their actions. Inshort, the stability of the nineteenth-centurybalance of power can hardly be replicated inthe more complex political system of the earlytwenty-first century.

The broader implications of the Bush doc-trine were considerable, given the basic princi-ple of international law that all sovereign statesare equal; consequently, if indeed preemptionhas become a part of international law, it is thena right that can be exercised by all states, and thisis especially so in the case of self-defense, whichis fundamental to sovereignty itself. This sce-nario raises interesting questions and prospects,given the tensions that exist, for instance, be-tween India and Pakistan, both of which arearmed with nuclear weapons. It also raises theinteresting question of whether Iran or NorthKorea—both famously labeled as two of thethree members of the axis of evil—could actpreemptively against the United States, givenespecially that the United States had alreadyinvaded the third member of that trinity, Iraq.If the Bush doctrine were to be instantiatedinto international law, these rogue states wouldseem to have every right to go to war with theUnited States. Given the reality of U.S. mil-itary superiority, however, it is extremely un-likely that any state, even if threatened as Iranand North Korea have been threatened, wouldrationally dare to seek direct confrontation withthe United States. In these circumstances, theidea of sovereign equality is nominally pre-served even though political realities make itevident that an ostensibly universal right canonly be enjoyed by a select and powerful fewstates.

For many scholars viewing the debate froma broader and more historically oriented per-spective, then, the Bush doctrine is an at-tempt to instantiate an imperial sovereigntyin the international system. A great deal hasbeen written about the Bush administrationin the context of the literature of empire andhegemony ( Johnson 2008, P Fitzpatrick 2003,Cohen 2004, Vagts 2001). Although theoreti-cally preemption could apply to all states, theUnited States articulated the doctrine never in-tending it to extend to its enemies. Indeed, un-der the logic of the doctrine, the attempts ofU.S. enemies to arm themselves could be inter-preted by the United States itself as an emergingthreat and hence a basis for preemption. PESD,then, becomes a right of the United States, andthe only other states that might dare assert sucha right are powerful states, such as the SovietUnion, or close U.S. allies, such as Australiaand the United Kingdom. As advocates of thedoctrine assert, “The US claim is essentiallyan assertion of the right to review the policiesadopted by the other government and to over-ride them whenever the US finds it necessary”(Benvenisti 2004, p. 691). For proponents ofhegemonic theory, it may make complete senseto rely on the United States as the one sovereignthat possesses the true right of self-defense inrelation to which all others submit. In effect,then, other states, particularly those that riskbeing regarded as rogue states, are denied thefundamental right to self-defense.

To many scholars this inequality is in-evitable. The international legal system has al-ways distinguished between Great Powers andthe rest (Simpson 2004) and has formalized in-equalities in power by, for example, providingthe stronger powers with special rights, such asthe veto power enjoyed by permanent membersof the Security Council. As Benvenisti (2004)argues, “Formal inequality is part and parcelof international law. The law bows to relativemilitary or economic power to bridge over dif-ferences, to accommodate needs, or simply tomaintain at least a semblance of coherence”(p. 694). Formal and informal inequality existin international law; nevertheless, as Kingsbury

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(1998) argues, the idea of the equality of states,together with the attempt to make that idea areality in international law, plays a real and vitalrole in promoting international justice.

Understandably, then, the Bush doctrinewas not readily accepted in the broader inter-national community. This was evident in thefindings of the United Nations itself, which ex-tensively reviewed the law of self-defense andconcluded that the existing law addressed theproblems that concerned the United States. Itargued that preemption was unnecessary be-cause under the existing law an emerging threatcould be addressed by the United Nations anda more imminent threat could be met by thedefensive use of force permitted by Article 51of the UN Charter. Seen from this broader his-torical perspective, this is an understandable at-tempt to reassert the law of the United Nationsas opposed to the law of the nineteenth century.And the fact that the war on Iraq, understoodas an example of preemptive action against arogue state, was not the great success that wasinitially anticipated by its principal architectshas further damaged the credibility of the Bushdoctrine.

But the UN report, of course, has notin itself succeeded in resolving the broaderissues raised by the Bush doctrine, and thepolitical repercussions continue. For while theIraq War was intended to sound a warningto rogue states intent on developing WMD,it has achieved precisely the reverse effectin the view of many scholars. As Joyner argues,the Iraq War appears rather to have producedthe deleterious blowback effect of giving a“highly rational motivation to officials of suchstates to expedite their WMD programs inorder to deter such action” ( Joyner 2008,p. 91). Ironically, then, the Iraq War seems tohave further encouraged states to seek WMDand even nuclear weapons precisely to defendthemselves from the possibility of preemptiveattack. This raises the larger question ofhow international law addressed the ongoingproblems presented by WMD and nuclearweapons. Given the massively destructive con-sequences of the use of weapons such as nuclear

weapons, it is surely desirable that nucleardisarmament should occur. Western effortsled by the United States to dissuade otherstates, most notably Iran, from engaging innuclear proliferation are complicated by thefact that this seems somewhat hypocritical.The nuclear states have done little to disarm—their obligations under the Non-ProliferationTreaty notwithstanding. Indeed, they arguedbefore the ICJ that they had a right to usenuclear weapons in self-defense (Int. CourtJustice 1996). What remains to be seen is howthe development by Iran of nuclear power—ostensibly for peaceful purposes—will be dealtwith, not only by the United States and theUnited Nations, but, most particularly, Israel.

SOVEREIGNTY, DEMOCRACY,AND INTERNATIONAL LAW

One of the central tenets of the NSS was itsemphasis on democracy and democracy promo-tion. Indeed, President Bush stated in the 2006NSS that U.S. security depended on two pillars;the first involves “working to end tyranny, topromote effective democracies,” and the “sec-ond pillar of our strategy is confronting thechallenges of our time by leading a growingcommunity of democracies” (Bush 2006, intro-ductory letter). The Bush administration’s focuson democracy promotion, a major aspect of theNSS of 2002, is further elaborated in the NSSof 2006:

Championing freedom advances our interestsbecause the survival of liberty at home increas-ingly depends on the success of liberty abroad.Governments that honor their citizens’ dig-nity and desire for freedom tend to upholdresponsible conduct toward other nations,while governments that brutalize their peoplealso threaten the peace and stability of othernations. Because democracies are the mostresponsible members of the internationalsystem, promoting democracy is the mosteffective long-term measure for strengthen-ing international stability; reducing regionalconflicts; countering terrorism and terror


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supporting extremism; and extending peaceand prosperity (Bush 2006, p. 3).

Democratic states, then, have a special sta-tus in the international system because theyare “more responsible” and because democracyis intimately linked with countering and pre-venting terrorism and enhancing internationalpeace and prosperity. Notably, the NSS of 2006elaborates and develops the idea of democracy.The holding of elections is not in itself suffi-cient. Rather, the NSS outlines a concept ofeffective democracies that includes the protec-tion of human rights, submitting to the willof the people, embracing the rule of law andpreventing corruption, protecting civil societyfrom government intervention, and promotingindependent business and a market economy(Bush 2006). Given this focus on democracy, itis understandable that the greatest achievementof U.S. policy since 2002, as recognized by theNSS, is the overthrow of tyranny and its re-placement with democracy in Afghanistan andIraq (Bush 2006).

Whereas the doctrine of preemption at-tempted to return to a pre–United Nations pe-riod in international law and relations, the ideaof democracy promotion expanded on manyUN initiatives to further the reach of democ-racy and to promote democratic governance.Underlying these efforts is an argument regard-ing the relationship between democracy and in-ternational law that has used international lawto assist in the realization of a particular vi-sion of international relations: the democraticpeace theory. Democratic peace theory de-rived in many important ways from Kant’s pro-foundly and enduringly important argument in“Perpetual Peace” that states that have a repub-lican constitution are unlikely to go to war with-out a proper cause because of the protectionsbuilt into such a system to prevent this (Kant1991 [1795]). Importantly, Kant himself spokeof a republican rather than a democratic consti-tution. But scholars in more recent times haveadapted and developed his basic ideas to formu-late a far-reaching and comprehensive theorywhich in its modern manifestation has taken the

form of the theory of the “democratic peace” orthe “liberal peace.”1 The basic argument thatliberal/democratic states do not go to war witheach other “is widely accepted as a law-like gen-eralization among political scientists who studyinternational relations” (Owen 2000, p. 343).2

As such, it follows—and this is in fact what manyproponents of the theory advocate—that theUnited Nations can achieve its ambitious goalof creating a sustainable world peace, not byevolving into a world government, but by pro-moting liberal democracy by whatever meansavailable (Owen 2000).

DEMOCRATIC SOVEREIGNTYAND THE EMERGENCE OF THERIGHT TO DEMOCRACY

The Bush vision of democracy promotion reliedin important ways on international legal at-tempts, since the early 1990s, to promote demo-cratic sovereignty. Under classical internationallaw, an entity is a state if it satisfies certain condi-tions: It must possess territory, population, andgovernment and the capacity to engage in in-ternational relations. Notably, then, traditionalinternational law does not stipulate that a statehas to establish a particular form of govern-ment in order to enjoy the rights of sovereignstatehood. This neutral approach to the char-acter of government was a major problem fordemocratic peace theory because it preventedinternational law from ensuring that states pos-sessed the type of government that was crucialto ensure international peace and stability.

International human rights law promisedto address this problem. From the outset, theprotection of human rights was connected withinternational peace (UN Charter Article 55).

1The two terms are quite often used interchangeably, al-though scholars seeking to explain the phenomenon some-times stress liberalism rather than democracy and vice versa(e.g., see Owen 2000).2While an advocate of liberal peace, Owen (2000, p. 385)warns against “liberal crusades” for such a peace arguing that“we may find ourselves fighting perpetual war for the sake ofperpetual peace.”

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Several human rights instruments, further-more, addressed the issue of government, evenif somewhat broadly. The UN Declaration onHuman Rights prescribed that governmentshould be with the consent of the governed,that “the will of the people shall be the basisof the authority of the government” (UN Gen.Assem. Resolut. 1948). Following that, Article25 of the International Covenant on Civiland Political Rights (ICCPR), for instance,provides for the crucial right of “political par-ticipation” (UN Gen. Assem. Resolut. 1966).3

Broad principles of international human rightslaw, it was assumed, were compatible with anumber of different political systems—rangingfrom communism to capitalism. Even by thelate 1980s, scholars writing on the right topolitical participation concluded that this rightwas relatively open-textured, a programmaticright that could take different forms dependingon the cultural and political traditions of asociety (Steiner 1988). By the beginning of the1990s, by contrast, scholars were enunciating aspecific right to democracy. The collapse of theBerlin wall and the embrace of democracy bymany societies that had previously been underdictatorship gave rise to the argument that statepractice itself indicated that democratic gover-nance was now an international norm (Franck1992, Fox 1992). Scholars such as FrancisFukuyama provided powerful support forthese ideas by arguing that liberal democraticgovernment was the one form of governanceto which all societies were traveling with moreor less success (Fukuyama 1992, Marks 2000a).

One major dissenting position against someof these initiatives was voiced by some Asianstates and scholars who questioned the uni-versality of the human rights principles artic-ulated by the West. Proponents of the “AsianValues” argument asserted that Asian societiesfavored stability and community over extensive

3Article 25 of the ICCPR speaks, for instance, of the rightsof a citizen “[t]o take part in the conduct of public affairs,directly or through freely chosen representatives” and “tovote and to be elected at genuine periodic elections whichshall be by universal and equal suffrage.”

individual political rights. Human rights normshad to be interpreted in the cultural context ofparticular societies. Importantly, some of thecountries associated with the “Asian Values” ar-gument, most notably Singapore, had achievedextremely impressive levels of economic devel-opment and were able to provide their peo-ple with very high standards of living in a rel-atively short time (Kausikan 1993). But thesearguments subsided with the collapse of Asianeconomies in the Asian crisis of 1997.

Human rights, then, became the majordoctrinal area through which the concept ofdemocratic sovereignty could be furthered andfostered. Indeed, democracy acquired a certainpriority among human rights. It is noticeablethat the right to political participation is butone of the rights enumerated in the ICCPR.The ICCPR contains numerous other individ-ual rights such as the right to a fair trial and theright to be free of torture, for instance, whichare given equal importance, and indeed, appearprior to the right to political participation inthe ICCPR. With the massive internationalmovement toward democracy that occurred inthe 1990s, however, there was a trend towardarticulating all these rights as being an aspect ofdemocratic governance. Democracy, then, wasidentified as the controlling and decisive right,one that both depended on these other rightsand, at the same time, preserved them in somefashion. Needless to say, democracy itself is noteasy to define. But whatever the complexitiesof political theory, under international law theright to political participation taken togetherwith other rights suggests a framework thatprovides content for a more refined and de-tailed concept of democracy (Crawford 1994).In addition to periodically held elections,then, democracy also implied the protectionof a series of other rights provided for in theICCPR, including, for instance, the right tofree speech, which were functionally connectedwith the broader right to democracy. Theseambitious projects were an important means,furthermore, of combating the corrupt andauthoritarian rule that afflicted many societiesin Asia and Africa (Okafor 2000).


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In this way, international human rightsnorms took a more elaborate and comprehen-sive form that sought to give the internal po-litical arrangements of a state a particular andspecific character. The optimism that accompa-nied the collapse of communism and the hopesof a new, post–Cold War world order led tothe formulation of extremely ambitious pro-grams of social engineering that internationallaw and institutions, nongovernmental orga-nizations, and Western states began to em-bark on under the rubric of democratic gover-nance or, even more broadly, good governance.This concept of democratic governance wasintimately connected with a number of otherinitiatives that attempted to promote all the in-stitutions necessary to create a proper systemof government—a government that adhered toand promoted the rule of law, respected humanrights, and was open, transparent, and account-able. More critical scholars pointed out that theemancipatory potential of democracy was beingundermined by its identification with a partic-ular and limited set of institutions and a narrowvision of political life (Marks 2000b).

At the institutional level, then, many orga-nizations and international institutions becameheavily involved in activities such as electionmonitoring as part of the project of democ-racy promotion. Even prior to the controversialwars in Afghanistan and Iraq, elections man-aged by international institutions, most promi-nently the United Nations, were a crucial partof the process of establishing a new nation, asin the case of East Timor, or else, as in the caseof Cambodia, of somehow representing a breakfrom a sordid past and creating a new futurein which the country in question could takeits place as a proper member of the commu-nity of nations. Thus, international institutionshave become involved in complex and mas-sive projects, termed state building or interna-tional territorial administration, of establishingdemocratic governance in war-torn territories.

This emphasis on the importance of demo-cratic governance was further reaffirmed by thefact that the Security Council of the UnitedNations went so far as to impose sanctions on

Haiti in the name of democratic governance.This occurred in 1991 after President Aristide,democratically elected to power under UN-supervised elections, was overthrown, and theUnited Nations took action against the usurperregime. Under the UN Charter, the SecurityCouncil is authorized to act only in the event ofa “threat to peace and security.” Implicitly, then,the overthrow of a democratic regime was seenas being such a threat. Indeed, the UN actionsin Haiti gave rise to the argument that interna-tional law may even authorize “prodemocraticintervention.”

The growing importance of democraticsovereignty was also suggested by the policy ofthe European Communities (as it then was), fol-lowing the break up of Yugoslavia, to recognizeentities claiming to be independent sovereignstates only if those entities could establish thatthey respected the provisions of various inter-national instruments such as the UN Charter,“especially with regard to the rule of law,democracy and human rights” (Eur. Counc.1991).

The EC criteria radically expanded the tra-ditional criteria of statehood by focusing onthe character of government rather than onthe simple fact of control. The traditional viewfocused on the question of whether the govern-ment has control over its territory and is there-fore in a position to meet its responsibilitieswith regard to it, rather than the political andinstitutional character of the government itself.For the EC, however, democracy was central tosovereignty. To the extent that recognition bystates comprising the EC was crucial to achiev-ing sovereignty, then, democracy was a precon-dition to being sovereign (Eur. Counc. 1991).

I have argued that the Bush doctrine of pre-emption was a significant departure from theestablished law of the United Nations. Pres-ident Bush’s emphasis on democracy promo-tion, however, extended—perhaps to the pointof distortion—international norms and initia-tives relating to democracy and democraticsovereignty that had been taking place overthe past decade or so. With the 9/11 attacks,these general theories were given a specific

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and pointed purpose and a further significance.Democracy was not merely desirable for philo-sophical reasons or because it protected hu-man rights. Rather, democracy was now closelyassociated with a number of other politicalcharacteristics—being law abiding, adhering tointernational norms, and protecting the rightsof individuals—that were deemed crucial forthe war against terrorism. Thus, the creationand spread of democracy became a central ele-ment of the Bush foreign policy.

Given the basic premises of liberal/democratic peace theory, it seemed to follownaturally that international law itself shouldreflect this reality and that one internationallaw should exist for liberal states and an-other for nonliberal states (Slaughter 1995).More ambitious formulations of the demo-cratic peace theory, then, suggested that demo-cratic sovereignty was superior to other formsof sovereignty and that democratic sovereignswere more likely to uphold international law.The emphatic distinction between democraticand nondemocratic states, and the further sug-gestion that different systems of internationallaw should apply to each group, reproduced inmany ways the system of nineteenth-century in-ternational law that asserted a structural distinc-tion between civilized and uncivilized states andthat further decreed that civilized states weresovereign whereas uncivilized states were not.Once again, therefore, in this somewhat novelmanner, the major developments of modern in-ternational law, most prominently internationalhuman rights law, were used to return to an-other, earlier phase in the history of interna-tional law.

INTERNATIONAL LAW ANDTHE DEMOCRATIC DEFICIT

The democratic peace argument, as adapted byinternational law scholarship, is based on theassumption that democratic states have an in-herent respect for international law: Democ-racy is a fundamental prerequisite for all hu-man rights, and, further, democratic states arerun in accordance with the rule of law. It is

broadly presumed that respect for the rule oflaw in the internal realm of a democratic statecorresponds with a respect for the rule of lawin the external realm of international law andrelations. However, the empirical and theoret-ical relationship between democracy and inter-national law is more complex than much ofthe literature might indicate because, as an-other important body of scholarship suggests,it is precisely in the name of democracy thatstates may justify departures from internationallaw. The much proclaimed virtues of democ-racy have been profoundly undermined by thestate that has been most intent on promotingthem—the United States itself. Guantanamo—whatever its future—has become an enduringsymbol of the United States’s disregard for var-ious principles of international human rightsand humanitarian law, and a vast, eloquent,and sometimes incredulous literature now ex-ists dealing with the impact of the war on terroron established principles of international law( J Fitzpatrick 2003). For human rights lawyers,it would have been unthinkable, 15 years ago,that there could be a debate on the question ofwhether waterboarding is torture. More impor-tantly, the invention of new categories, such asunlawful enemy combatants, to deny a wholegroup of individuals any of the protections of-fered by either human rights or internationalhumanitarian law raises the profound questionthat had been eloquently presented by HannahArendt: Is there a right to have rights? The basicand in many ways revolutionary claim made byinternational human rights law is that all humanbeings have rights, no matter how dangerous,depraved, or violent they may be. It was pre-cisely this claim, perhaps the most powerful andfundamental basis to human rights, that is be-ing contested. Even more disconcertingly, thesejustifications for departing from internationallaw are often based on theories of democracy.

In addition, the argument that democraticstates are less likely to go to war because ofthe constraints on executive power imposed bysuch a system confronts the fact that this sys-tem does not always work as anticipated. TheU.S. Constitution has explicitly provided that it


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is the power of Congress to declare war. Evenso, as Glennon (2003a) has noted about theUnited States, writing before the second IraqWar, “force has been used well over 200 timesthroughout its history, and in only five conflictshas Congress declared war” (p. 323).

The idea that democracy and compliancewith international law are mutually supportiveis also problematic because, as Crawford notes,classical international law is in many respects“deeply undemocratic.” For instance, “nationallaw, no matter how democratically established,is not an excuse for failure to comply with in-ternational obligations” (Crawford 1994). Inrecent years, the undemocratic character ofinternational law has been explored by a body ofscholarship dealing with the democratic deficitarising from the expanding reach of interna-tional institutions whose decisions profoundlyimpact people who have no means of influenc-ing those decisions. The democratic deficit ar-gument was associated in particular with theemergence of the European Union (Weiler1999) and the intensification of globalizationthat involved a shift of power to nonstate ac-tors including, most vividly, the World TradeOrganization.

The democratic deficit argument acquired anew and forceful character in the commence-ment of the war against terror because ofthe influential writing of a group of schol-ars, broadly—and awkwardly—termed the newsovereigntists, who argue that international lawand institutions are unaccountable and non-transparent and that they lack the democraticfoundations of the U.S. system itself. Newsovereigntists argue that a government owesits principal loyalty to its own people and toa system of governance that addresses theirneeds (Spiro 2000, Escorihuela 2005). The the-ory of democratic constitutionalism, on whichthe U.S. system is based, provides a justificationfor departing from international law that lacksreal democratic legitimacy (Rubenfeld 2004).This argument characterizes international lawand institutions as often designed to be an-tidemocratic. As such, it is entirely justifiablefor a state such as the United States to adhere

to its own democratic traditions and to disre-gard international law. International law is notto be completely repudiated, however; rather,international law is something like a guidelinethat may be followed when it is in the inter-ests of the United States to do so (Goldsmith &Posner 2005). In addition, these scholars arguethat international law is binding on the UnitedStates, but only to the extent that it is prop-erly incorporated into domestic law. Thus, theSupreme Court of the United States examinedand applied international humanitarian and hu-man rights norms when analyzing the treatmentof detainees because these laws were part of thelaw of the United States (Hamdan v. Rumsfeld2006). But this was because international lawhad become part of the national law. In theevent of a conflict between national law and in-ternational law, the same court would upholdnational law. On the international plane, how-ever, as Crawford (1994) points out, nationallaw, no matter how democratically established,is not an excuse for failure to comply with in-ternational obligations. “At one level the ruleis obvious and would seem to have no adverseimplications for democratic government. At an-other level, however, the rule creates significantproblems of democratic control. If an interna-tional obligation arises apart from a treaty, theremay have been no direct process of commit-ment to the obligation either by Parliament orthe elected leaders” (Crawford 1994, p. 117).

The democratic deficit argument is a pow-erful one. Indeed, it is especially relevant topeoples living in developing countries that aresubject to economic structural adjustment pro-grams by international institutions such as theWorld Bank and the International MonetaryFund that are not accountable to the peo-ple most affected by the decisions they make(Chimni 2004). Significantly, it further suggeststhat democratic states are precisely those statesthat can validly depart from international law.

For all these reasons, the relationship be-tween democratic governance and compliancewith international law remains fraught and un-resolved and is likely to generate a great dealof scholarship. But it is clear, from both an

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empirical and a theoretical point of view, thatthe proposition that democratic states are morelaw abiding is open to question (Alvarez 2001).The relationship between democratic peace andthe democratic deficit theory clearly requiresfurther exploration. Of course, it may be arguedthat democracy is somehow endogenous to cer-tain states while it should be imposed throughinternational law on other states, and that it isthe former type of democratic state that canproperly depart from international law, whilethe latter must abide by it. However, this ap-proach then confronts the familiar problem ofhow this distinction between different speciesof democratic state is to made and enforced inthe international system.

INTERNATIONAL LAWAND EMERGENCY

For new sovereigntists, then, the United Statesis perfectly justified, indeed, required to violateinternational law when that law is at odds withthe law of the United States or, more generally,the principles of U.S. democracy. However, thepower of the various branches of governmentis nevertheless limited and accountable becauseit stems from the Constitution itself. Interna-tional law cannot curtail the president; but theU.S. Constitution may do so. Further, a de-parture from international human rights normsdoes not leave the individual without any legalprotection; rather, rights are provided by U.S.national law, which is understood to be moredetailed, comprehensive, and effective.

But it is also clear from the arguments madeby the Bush administration that, in times ofemergency, power is transferred to the presi-dent and that other institutions of governmentsuch as the courts cannot and should not inter-fere with the decisions made by the presidentto ensure the very survival of the state.4 For

4This is what may be crudely termed the Grand Inquisitortheory of democratic sovereignty in times of emergency: “Itell you man has no more agonizing anxiety than to find some-one to whom he can hand over with all speed the gift offreedom with which the unhappy creature is born” (Dos-toyevsky 1975 [1958], p. 298).

advocates of strong executive powers, further-more, it is not only international law, butmore importantly, other branches of govern-ment within the national system that are sub-ordinate to the executive power in emergencysituations or that at least should show defer-ence to the executive in these times (Yoo 2005,Posner & Vermeule 2007). Strong argumentshave been made that in times of war the pres-ident, under the U.S. Constitution, has virtu-ally unfettered power; in this case, compellingconcerns regarding self-defense take the form,not only of the use of preemptive force, butalso of the recourse to measures that are notexpressly labeled as such but that internationallawyers may characterize as torture, imprison-ment without charges, and renditions, all ofwhich are illegal under international law. TheBush doctrine’s attempt to expand the scope ofself-defense to enable an easy recourse to warcan be seen within this broader framework asan attempt to expand the reach of sovereigntybeyond the law itself through the invocation ofemergency or necessity.

Thus, another prominent characteristicof discussions on sovereignty in this periodhas focused on the relationship between thepowers of sovereignty and emergency—ininternational law and constitutional law, andalso in more general theoretical terms that posethe basic question: What is the relationship be-tween law and emergency? For many theorists,the character of sovereignty is inextricablylinked with this question (Schmitt 2005 [1985],Agamben 1998). The true character and reachof sovereignty are revealed in the state ofexception.

Emergency measures demand the exerciseof extraordinary powers, but are these powersprovided by law and constrained by law, or dothey somehow exist outside the law in order,paradoxically, to preserve the very system of lawitself?

In the area of international law, the structureof the United Nations provides in effect thatthe Security Council has what may be termedemergency powers: the power to determine,for instance, whether there is a threat to


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peace and security—the central concern ofthe UN Charter—and the power to createbinding obligations on states when the UnitedNations acts under its Chapter 7 powers. Thesignificance of these powers is such that theSecurity Council decisions prevail as againsttreaty obligations, under Chapter 103 of thecharter. What this provision makes clear is thatordinary treaty law no longer applies whenemergency measures are taken. Whateverits emergency powers, however, the SecurityCouncil is subject to the law of the UNCharter, which provides it with its own rights,and the ICJ examines these issues. In the fieldof human rights law, the ICCPR provides thatstates may derogate from certain provisions,but that certain rights, including the right tobe free from torture, are nonderogable. Somearguments have been made that the conceptof derogation should be extended to Article 51of the UN Charter; states may derogate fromit when there is a threat and an emergencysituation arises (Benvenisti 2004).

In seeking to explore the issues of law ina time of emergency from broader historicaland theoretical perspectives, scholars have in-evitably turned to the work of scholars suchas Carl Schmitt and his influential argumentthat laws were devised to deal with normalconditions; once exceptional events occur andthose conditions cease to exist, then the lawbecomes irrelevant and only a strong execu-tive can address the situation: “What charac-terizes an exception is principally unlimitedauthority, which means the suspension of theentire existing order” (Schmitt 2005 [1985],p. 12; see also Gross & Nı Aolain 2006). Giventhat the sovereign decides the exception, inSchmitt’s scheme, it is unclear whether any lim-its exist to the exercise of absolute power in atime of purported emergency. Confronted withthese dilemmas, scholars have offered differ-ent models on how a balance can be achievedbetween legality and the need to exercise spe-cial powers in times of emergency (Gross& Nı Aolain 2006, Dyzenhaus 2005, Ramraj2008).

One model suggests, for instance, that theexecutive may break the law in times of emer-gency, but the consequences that follow fromthis will vary depending on “direct or indirectpopular ex post ratifications of such activities”(Gross & Nı Aolain 2006). In other cases, themodel attempts to ensure that, no matter whatthe character of the emergency, law plays an in-tegral role in its management, and judges have aspecial responsibility to ensure that this will bethe case (Dyzenhaus 2005). Complications re-main, of course, given that terrorism, depend-ing on how it is characterized, could give rise toa permanent state of emergency. The endur-ing and perhaps unresolvable problem arisesfrom the paradox that the sovereign is bothwithin and outside the law. But the paradoxes ofsovereignty are an essential aspect of the verydiscipline of international law, which is con-fronted by the analogous problem of how theomnipotent sovereign that creates the law canbe simultaneously constrained by that law.

For other scholars, the relationship betweenemergencies and the rule of law requires an un-derstanding of imperial histories. While somescholars trace this theme back to Roman times,it is also clear that the British Empire was oftenconfronted with the question of how their claimto be governed by laws and, indeed, to be fur-thering the law could be squared with the brutalpolicies they adopted to quell native mutiniesand insurrections (Hussain 2003, Witt 2007).What this suggests, however, is that, in the par-ticular case of the war on terror and all it hasentailed, the invocation of emergency has a pe-culiarly colonial character.

CONCLUSIONS

The policies that animated the NSS of2002 and 2006 and the war on terror moregenerally represent the most radical recentattempts to rethink the relationship betweensovereignty and international law. Internationallaw is a creation of sovereign states. Self-preservation is regarded as such an inherent as-pect of sovereignty that the right of self-defense

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is characterized, even in the UN Charter, aspreceding the law. Nevertheless, modern inter-national law has attempted to limit the exerciseof this right, because an unrestrained and unde-fined right of self-defense will be seen as legit-imizing war. The powerful idea persists, how-ever, that self-defense is somehow outside thelaw or else that the law should be amended toallow self-defense in a form appropriate for allexigencies.

Clearly, however, the arguments elaboratingthese new ideas of sovereignty and internationalorder are entirely familiar and traditional. Theyundermine the basic principle of internationallaw—that all sovereign states are equal—by ef-fectively giving powerful states rights over lesspowerful states. Furthermore, they develop avocabulary that distinguishes between states—hence liberal and nonliberal states, democraticand nondemocratic states, premodern and post-modern states—and that justifies the use of adifferent set of rules for the inferior category ofstates. Increasingly sophisticated ways of cat-egorizing states in starkly dichotomous termshave been a hallmark of recent attempts to re-think sovereignty, international law, and war(Bobbitt 2008). The distinction having beenmade, the great task is undertaken then of trans-forming the inferior, nondemocratic state into aproper, functioning, democratic state. The pos-sible illegality of the actions taken to achievethese goals is inconsequential because of theurgent need for self-preservation, even if thisinvolves the attack and transformation of roguestates. In all these different ways, the attemptsto rethink sovereignty return us to the worldof nineteenth-century international law, wherethe division between civilized and uncivilizedstates was the foundation of a differentiated sys-tem of international law in which the uncivi-lized state was denied the rights of sovereigntyand could, thus, within the law, be conquered

and transformed. The paradox, however, as mydiscussion of democratic sovereignty attemptsto show, is that it is precisely the democraticstate that makes powerful claims to deviate frominternational law. The question that then arisesis whether there are any limits to what such astate, ostensibly unfettered by international law,can do.

Important theoretical analyses ofsovereignty have attempted to explicatethe relationship between sovereignty andthe exception and, thereby, the relationshipbetween sovereignty and the law. It is throughthe invocation of emergency, of necessity—invariably connected with ideas of self-defenseand self-preservation—that sovereignty hasattempted to expand. Theoretical discussionsof the nature of emergency or exception havebeen powerfully illuminating, therefore, inexplicating the nature of the war on terror andthe maneuvers of the Bush administration. Fur-ther, this review argues that an understandingthat combines these theoretical insights with anappreciation of the history of international laware most useful in understanding how the ex-ception has been used in the war on terror. Thesovereign exception here relies for its justifica-tion on a colonial imagery—the terrorist that isdenied any rights is the same as the savage whoknows no laws; the rogue state is the barbaricother state of the nineteenth century. At thesame time that it invokes colonialism to expandits power, it attempts thereby to reproduceimperial relations that resemble those thatprevailed in the nineteenth century. One ofthe effects of democratic sovereignty becameevident in the U.S. elections of November2008. It is still unclear, however, whether in-ternational law will remain untouched, in oneway or another, by the primordial structuresand characteristics of sovereignty this reviewhas attempted to elucidate.

DISCLOSURE STATEMENT

The author is not aware of any biases that might be perceived as affecting the objectivity of thisreview.


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AR392-FM ARI 30 September 2009 19:8

Annual Review ofLaw and SocialScience

Volume 5, 2009Contents

Morality in the Law: The Psychological Foundations of Citizens’Desires to Punish TransgressionsJohn M. Darley � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 1

Experimental Law and EconomicsRachel Croson � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �25

The Challenge of Empirical Research on Business Compliancein Regulatory CapitalismChristine Parker and Vibeke Nielsen � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �45

Welfare, Workfare, and Citizenship in the Developed WorldJoel F. Handler � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �71

Willpower and Legal PolicyLee Anne Fennell � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �91

More Religion, Less Crime? Science, Felonies, and theThree Faith FactorsJohn J. DiIulio, Jr. � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 115

The Political Economy of ProsecutionSanford C. Gordon and Gregory A. Huber � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 135

Lineups and Eyewitness IdentificationAmy-May Leach, Brian L. Cutler, and Lori Van Wallendael � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 157

Punitive DamagesNeil Vidmar and Matthew W. Wolfe � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 179

Does the Process of Constitution-Making Matter?Tom Ginsburg, Zachary Elkins, and Justin Blount � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 201

The New Legal PluralismPaul Schiff Berman � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 225

Global Legal PluralismRalf Michaels � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 243

Recursivity of Global Normmaking: A Sociolegal AgendaTerence C. Halliday � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 263

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AR392-FM ARI 30 September 2009 19:8

Rethinking Sovereignty in International LawAntony Anghie � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 291

Does Torture Work? A Sociolegal Assessment of the Practicein Historical and Global PerspectiveLisa Hajjar � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 311

The Empirical Study of Terrorism: Social and Legal ResearchGary LaFree and Gary Ackerman � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 347

Public Support for Civil Liberties Pre- and Post-9/11John L. Sullivan and Henriet Hendriks � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 375

The Expanding Purview of Cultural Properties and Their PoliticsRosemary J. Coombe � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 393

Indexes

Cumulative Index of Contributing Authors, Volumes 1–5 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 413

Cumulative Index of Chapter Titles, Volumes 1–5 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 415

Errata

An online log of corrections to Annual Review of Law and Social Science articles may befound at http://lawsocsci.annualreviews.org

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