But neither the Obama administration nor the Bush administration before it can really be blamed for this anemic understanding of what we might call "other states' sovereignty." The principles of sovereignty and non-intervention have unquestionably eroded in recent years -- but that erosion has been driven by technological and normative changes that go far beyond counterterrorism concerns. Specifically, human rights norms have done as much to erode traditional ideas of sovereignty as have more U.S.-centric theories of counterterrorism. In fact, for all their criticism of U.S. drone policy, those in the human rights community often embrace a theory of sovereignty remarkably similar to the theory that undergirds current U.S. counterterrorism policy.
In essence, both the human rights community and the U.S. counterterrorism community increasingly view sovereignty -- and the accompanying right to be free of foreign intervention -- as a privilege states can earn or lose, rather than an inherent right of statehood. (I have discussed this issue in my more academic writing, and the following discussion draws both on a previously published journal article and a forthcoming article; anyone interested in seeing either piece can contact me by email.)
In many ways, the big international law story of the last 70 years has been the erosion of traditional legal ideas of sovereignty. This has been driven in part by technological change and globalization: It's one thing to embrace the principle of non-intervention when events in one state are unlikely to affect events in other states, but another thing altogether in an era in which money, viruses, chemical pollutants, and missiles can move across state borders in hours or minutes, rather than weeks or months. But international law's embrace of human rights also represents a deep challenge to sovereignty, reflecting a shift away from the notion that what a state does inside its own borders is solely its own concern.
The U.N. Charter struggled to balance traditional principles of sovereignty and non-intervention with a commitment to the maintenance of international peace and a nascent commitment to universal human rights. Over the decades following its adoption, the creation of international human rights treaties increasingly "internationalized" many matters once seen as solely of domestic concern -- causing some states to insist that international inquiries into their human rights practices violated their sovereignty.
By the late 1990s, the principle of non-intervention had come under sustained assault by the human rights community. The Balkan wars and the Rwandan genocide had demonstrated that non-intervention could carry a heavy moral price tag, and in 1998, when reports of Serbian "ethnic cleansing" in Kosovo began to emerge, human rights advocates urged the international community to take action to prevent a possible new genocide.
The United States and other NATO members responded with an aerial bombing campaign against Serbian targets within the Federal Republic of Yugoslavia (as it was still then called). This military action was not authorized by the Security Council, and NATO could make no plausible claim relating to state consent or self-defense. As a result, many international law experts viewed the Kosovo intervention as illegal -- or, at best, "extra-legal." Nevertheless, it was generally viewed as morally legitimate, and it received what amounted to retrospective endorsement in later Security Council resolutions.
Commenting on the tensions between sovereignty and human rights, then-U.N. Secretary General Kofi Annan asserted in 1999, "State sovereignty, in its most basic sense, is being redefined -- not least by the forces of globalization and international cooperation. States are now widely understood to be instruments at the service of their peoples, and not vice versa....When we read the [U.N.] Charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them. The genocide in Rwanda showed us how terrible the consequences of inaction can be....But this year's conflict in Kosovo raised equally important questions."
Those questions -- initially framed mainly as questions about the legality of "humanitarian intervention" -- were soon recast as questions about the rights and duties of sovereignty. In 2001 -- within months of the 9/11 attacks -- the International Commission on Intervention and State Sovereignty released a report asserting that the most fundamental duty of sovereign states was the protection of their populations. "State sovereignty implies responsibility....Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect."