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LIVING WITH/OUT SOVEREIGNTY

Mathew Kuriakose

PhD Student

Department of Humanities and Social Sciences

Indian Institute of Technology Bombay, Mumbai

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The Montevideo Convention on Rights and Duties of States of 1933

Article 1 provides: “The State as a person of international law

should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other

States”

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Sovereignty refers to: The supreme ruler The supreme power in a polity The paramount power in a territory The modern territorial nation state

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DIFFERENT USAGES OF SOVEREIGNTY (STEPHEN D. KRASNER (1999), SOVEREIGNTY: ORGANIZED HYPOCRISY) a) International legal sovereignty “the practices associated with mutual

recognition, usually between territorial entities that have formal juridical independence”

-deals with issues of authority and legitimacy, not control

-recognition of territorial entities -the case of states in exile

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b) Westphalian sovereignty (1648) “political organisation based on the exclusion

of external actors from authority structures within a given territory”.

-the principle of non-intervention or the Right to protect/Humanitarian intervention/Just war

-Taiwan has WS but not ILS -EU has ILS but limited WS

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c) Domestic sovereignty “formal organisation of political authority

within the state and the ability of public authorities to exercise effective control within the borders of their own polity”.

-the case of LTTE or Maoist India d) Interdependence sovereignty “interdependence sovereignty refers to the

ability of public authorities to regulate the flow of information, ideas, goods, people, pollutants, or capital across the borders of their state”

-the effects of globalisation, MNCs

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THE PARADOXES OF SOVEREIGNTY

What is happening to sovereignty? -Erosion of sovereignty or

Evolution/Metamorphosis of sovereignty What should happen to sovereignty? -Social life can be organised with/out sovereign

authority -Sovereignty is a necessary evil What is to be done with sovereignty? -To enhance or restrain sovereignty -to enhance it internally and restrain it externally -globalisation reverses it by restraining internal

sovereignty and through the overreach of external sovereignty

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“shifting relations between the promotion and protection of human rights and sovereignty can be observed in three fields:

(1) in the field of international organisations, States accept that the organisations like the United Nations or the European Union can take decisions on which they no longer have a decisive influence;

(2) in the field of regional and international (quasi-)judicial institutions, States accept that individuals can turn to these international bodies that have jurisdiction on human rights issues; and

(3) in the field of conflict and foreign intervention, States tend to accept infringement on their sovereignty for the protection of individuals from grave human rights violations”. (Miyoshi Masahiro)

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THE TRAJECTORY OF SOVEREIGNTY

‘Two Cities’, Augustine of Hippo (354-430) “In the absence of justice, what is sovereignty but organized

robbery?”

“Accordingly, two cities have been formed by two loves: the earthly [city] by the love of self, even to the contempt of God; the heavenly [city] by the love of God, even to the contempt of self. The former, in a word, glories in itself, the latter in the Lord. For the one seeks glory from men... In the one, the princes and the nations it subdues are ruled by the love of ruling; in the other, the princes and the subjects serve one another in love, the latter obeying, while the former take thought for all. The one delights in its own strength, represented in the persons of its rulers; the other says to its God, "I will love Thee, O Lord, my strength." And therefore the wise men of the one city, living according to man, have sought for profit to their own bodies or souls, or both.....”

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Thomas Hobbes , The Leviathan State of nature, absolute sovereignty,

consent of the subject, the question of moral obligation (to obey)

Hobbes’ social contract- Total absence of social coherence-the govt be sovereign-the sovereign be absolute.

Rousseau’s social contract- a) individuals constituted as people b) people then establish a government- result- citizens become and remain sovereign

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SOVEREIGNTY, LAW, JUSTICE Max Weber (1918), Politics as Vocation “state is a human community that (successfully) claims

the monopoly of the legitimate use of physical force within a given territory. Note that 'territory' is one of the characteristics of the state. Specifically, at the present time, the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it. The state is considered the sole source of the 'right' to use violence. Hence, 'politics' for us means striving to share power or striving to influence the distribution of power, either among states or among groups within a state

“the state is a relation of men dominating men, a relation supported by means of legitimate (i.e. considered to be legitimate) violence. If the state is to exist, the dominated must obey the authority claimed by the powers that be”

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WEBER ASKS “WHEN AND WHY MEN OBEY?”

Because: a) the authority of the 'eternal yesterday,' i.e. of the mores

sanctified through the unimaginably ancient recognition and habitual orientation to conform. This is 'traditional' domination exercised by the patriarch and the patrimonial prince of yore.

b) the authority of the extraordinary and personal gift of grace (charisma), the absolutely personal devotion and personal confidence in revelation, heroism, or other qualities of individual leadership. This is 'charismatic' domination, as exercised by the prophet or--in the field of politics--by the elected war lord, the plebiscitarian ruler, the great demagogue, or the political party leader.

c) there is domination by virtue of 'legality,' by virtue of the belief in the validity of legal statute and functional 'competence' based on rationally created rules. In this case, obedience is expected in discharging statutory obligations. This is domination as exercised by the modern 'servant of the state' and by all those bearers of power who in this respect resemble him.

Weber’s rationalisation thesis

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MARX’S IDEA OF STATE

“The executive of the modern state is nothing but a committee for managing the common affairs of the whole bourgeoisie”

State as an instrument of class rule, domination and exploitation.

The relative autonomy school

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JACQUES DERRIDA (1990) “FORCE OF LAW: THE “MYSTICAL FOUNDATION OF AUTHORITY”

“There are, to be sure, laws that are not enforced, but there is no law without enforceability, and no applicability or enforceability of the law without force, whether this force be direct or indirect, physical or symbolic, exterior or interior, brutal or subtly discursive and hermeneutic, coercive or regulative and so forth”

“What difference is there between, on the one hand, the force that can be just, or in any case deemed legitimate...and on the other hand the violence that one always deems unjust”

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Derrida’s central question: what if justice is not necessarily (the) law?

“One obeys them (laws) not because they are just but because they have authority”

The origins of authority “are neither legal nor illegal in their founding moment”.

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GILLES DELEUZE AND FELIX GUATTARI, CAPITALISM AND SCHIZOPHRENIA

“All societies are rational and irrational at the same time. They are perforce rational in their mechanisms, their cogs and wheels, their connecting systems, and even by the place they assign to the irrational. Yet all this presupposes codes or axioms which are not the products of chance, but which are not intrinsically rational either. It's like theology: everything about it is rational if you accept sin, immaculate conception, incarnation. Reason is always a region cut out of the irrational -- not sheltered from the irrational at all, but a region traversed by the irrational and defined only by a certain type of relation between irrational factors. Underneath all reason lies delirium, drift. Everything is rational in capitalism, except capital or capitalism itself. The stock market is certainly rational; one can understand it, study it, the capitalists know how to use it, and yet it is completely delirious, it's mad. It is in this sense that we say: the rational is always the rationality of an irrational.”

-deterritorialisation and reterritorialisation Law as the rationality of the irrational

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SOVEREIGNTY, LAW, EXCEPTION

Carl Schmitt (1985). Political theology: Four chapters on the concept of sovereignty

“sovereign is who decides on the state of exception”

necessitas legem non habet (necessity has no law)

the state of necessity, on which the exception is founded, cannot have a juridical form.

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GIORGIO AGAMBEN (2005) STATE OF EXCEPTION juridical measures that cannot be understood in legal

terms the state of exception appears as the legal form of

what cannot have legal form law employing exception means the suspension of

law itself He addresses the gap between or the “no-man’s-land

between public law and political fact, and between the juridical order and life”

State of exception is normally a response to situations of civil war, insurgencies etc.

“the voluntary creation of a permanent state of emergency (though perhaps not declared in the technical sense) has become one of the essential practices of contemporary states”

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The distinction between a “real state of exception” and a “fictitious state of exception”

The USA Patriot Act issued by the U.S. Senate on October 26, 2001

A captured Taliban terrorist is neither a prisoner of war (Geneva Convention) nor an ordinary criminal under American legal system

The logic of Nazi camp- deprived of citizenship/no legal identity

State of exception- a special kind of law? Or a suspension of juridical order itself?

State of exception “appears increasingly as a technique of government rather than an exceptional measure”

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GIORGIO AGAMBEN (1998) HOMO SACER: SOVEREIGN POWER AND BARE LIFE

state’s extension from political life to biological life

Michel Foucault- first volume of The History of Sexuality- natural life begins to be included in the mechanisms and calculations of State power, and politics turns into biopolitics.

biological creation of docile bodies analysis of the concrete ways in which power

penetrates subjects’ very bodies and forms of life.

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“the production of a biopolitical body is the original activity of sovereign power”

“ life as such becomes a principal object of the projections and calculations of State power”, not just inclusion of bare life into political realm.

-body as a territory to be governed -the tension between humans as specific

object of governance, and humans as subjects of political power.

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AIHWA ONG (2004), THE CHINESE AXIS: ZONING TECHNOLOGIES AND VARIEGATED SOVEREIGNTY

“developmental” strategies highly varied and that their regulatory effects are not uniform across the national territory” against the container concept of sovereignty.

“Zoning technologies provide the mechanisms for creating or accommodating islands of distinct governing regimes within the broader landscape of normalized rule, thus generating a pattern of variegated but linked sovereignty”

“Zoning technologies create zones of political exception to normalized Chinese rule, generating economic, social, and political conditions that constitute a detour to political integration with Hong Kong, Macao, and, expectantly, Taiwan”.

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TASK

Identify laws, governance policies and techniques in India that denotes the emergence of ‘state of exception’ on territory.

Examples: AFSPA, CRZ Notification, Union Territories, SEZ Act

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QUESTIONS TO PONDER

How sovereignty and biopolitics interact in the case of an Australian surrogate child left to the Thai surrogate mother?

How do you characterise the authority of ISIS in Iraq? Whom should the people in ISIS controlled areas obey, ISIS or the Iraqi State?

What happens to sovereignty when a people cordon off their area from state’s control in order to resist land acquisition as it happened in Nandigram?

Can you relate biopolitical sovereignty to female foeticide in India?

Can we consider the constant use of Eminent Domain as a case of state of exception becoming a technique of government?

Is NSA spying an act of normalising state of exception?

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FURTHER READING

Agamben, Giorgio. 1998. Homo Sacer: Sovereign power and bare life (trans: Heller-Roazen, D.). Stanford: Stanford University Press.

Agamben, Giorgio. 2005. State of exception (trans: Attell, K.). Chicago: University of Chicago Press.

Benjamin, Walter. 1996. Critique of violence (trans: Jephcott, W.). In Selected writings, vol. 1, 1913–1926, ed. Marcus Bullock and Michael W. Jennings, 236–252. Cambridge: Belknap/Harvard University Press.

Butler, Judith. 2004. Precarious life: The powers of mourning and violence. New York: Verso.

Foucault, Michel. 2007. Security, territory, population. lectures at the colle`ge de France 1977–1978, ed.Michel Senellart (trans: Burchell, G.). New York: Palgrave Macmillan.

Schmitt, Carl. 1985. Political theology: Four chapters on the concept of sovereignty (trans: Schwab, G.).Cambridge, MA: MIT Press.