Kiss it goodbye.
There's been much comment on the Obama administration's
recently leaked Justice Department white
paper on the targeted killing of U.S. citizens overseas,
but most of the debate has focused on the administration's Orwellian
interpretation of the term "imminence." Less remarked upon has been its equally
elastic theory of sovereignty.
In a nutshell, the U.S. legal theory of sovereignty
is this: "We have it; you don't."
has long been a core concept of the Westphalian international legal order. The
basic idea is simple: In the international arena, all states are formally
considered equal and possessed of the right to control their own internal
affairs free of interference from other states. That's what we call the principle
-- and it means, among other things, that it's generally a big international
law no-no for one state to use force inside the borders of another sovereign state.
There are some
well-established exceptions, but they are few in number. A state can lawfully
use force inside another sovereign state with that state's invitation or
consent, or when force is authorized by the U.N. Security Council, pursuant to
Charter, or in self-defense "in the event of an armed
The principle of sovereignty might appear to pose
substantial problems for U.S. drone policy: How can the United States lawfully
use force to kill suspected terrorists inside Pakistan, or Somalia, or Yemen,
or -- hypothetically -- in other states in the future? Obviously, the United
States does not have Security Council authorization for drone strikes in those
states, so the justification has to rest either on consent or on some theory of
self-defense. Thus, the DOJ white paper blithely asserts that targeted killings
carried out by the United States don't violate another state's sovereignty as
long as that state either consents or
is "unwilling or unable to suppress the threat posed by the individual being
As I noted last week, that sounds superficially plausible, but since the United States views
itself as the sole arbiter of what constitutes an imminent threat and whether a
state is "unwilling or unable" to suppress that threat, the logic is in fact
It goes like this: The United
States -- using its own infinitely malleable definition of "imminent" --
decides that Person X, residing in sovereign State Y, poses a threat to the
United States and requires killing. Once the United States decides that Person
X needs to become deceased, the principle of sovereignty presents no barriers,
because either 1) State Y will consent to
the U.S. use of force inside its borders, in which case the use of force
presents no problem (except for Person X, of course), or 2) State Y will not consent to the U.S. use of force
inside its borders, in which case -- by definition! -- the United States will
deem State Y to be "unwilling or unable to suppress the threat" posed by Person
X and the use of force again presents no problem.
Needless to say, this is a legal theory that more or
less eviscerates traditional notions of sovereignty, and it has the potential
to significantly destabilize the already shaky collective security regime
created by the U.N. Charter.
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.
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
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."
This notion of a "responsibility to protect" was
embraced by the international community -- including the United States -- with
surprising rapidity. In every way, it represents a radical assault on
traditional legal concepts of sovereignty. The "responsibility to protect"
doctrine -- often now referred to as R2P -- suggests that when a state fails to
protect its own population, it can no longer claim any right to be free of
external intervention (including, in extreme cases, military intervention) if
intervention is needed to secure the safety of a threatened population.
And by implication, that intervention need not
necessarily be authorized by the U.N. Security Council. If the Security Council
"fails to discharge its responsibility to protect in conscience-shocking situations
crying out for action...concerned states may not rule out other means to meet the
gravity and urgency of that situation," observed the 2001 ICISS report. The logic
is clear enough: If failure to protect its population delegitimizes a state's
legal claim to sovereignty, then the failure of collective security structures
(such as the UNSC) to take appropriate corrective action would similarly delegitimize
those collective institutions. Put a little differently, the Responsibility to
Protect logically implies that both "the international community" and
individual states have a right and a duty
to intervene -- militarily, if necessary -- when another state is "unwilling or
unable" to protect its own population.
If the language justifying drone strikes in sovereign
states appears to directly parallel the language of the Responsibility to
Protect, it's no accident. Although the R2P doctrine was developed in response
to genocide and other mass atrocities, the language of R2P was easily turned to
other purposes. That's not entirely inappropriate, either: R2P's underlying
logic is equally applicable to terrorism, which is itself a form of human
rights abuse (and one that can have devastating consequences for civilian
As I have argued
you "might even say that the R2P coin ought logically to be seen as having two
sides. On one side lies a state's duty to take action inside its own territory
to protect its own population from violence and atrocities. On the other
side lies a state's duty to take action inside its own territory to protect other
states' populations from violence. Either way, a state that fails in these
duties faces the prospect that other states will intervene in its ‘internal'
affairs without its consent." In a sense, then, it was the human rights
community's critique of sovereignty that helped pave the way for drone strikes.
I don't mean to overstate this, or suggest that this
necessarily legitimizes drones strikes or similar cross-border uses of force.
There are plenty of non-sovereignty-related reasons (both strategic and
rule-of-law-based) to object
to current U.S. drone policy. And the parallel between R2P and unilateral U.S.
counterterrorist drone strikes is inexact, for two reasons. First, R2P
proponents may acknowledge hypothetical situations in which unilateral military
interventions not authorized by the Security Council might be justified, but in
practice, R2P advocates have demonstrated a strong commitment to viewing force
as a last resort and to building Security Council -- or at least strong
multilateral -- support for any interventions. Neither of these commitments
appears fully shared by the Obama administration, or the Bush administration
Second, arguments premised on the Responsibility to
Protect are transparent: Evidence that a state is unwilling or unable to
protect its population from egregious harm can be examined by all, and
R2P-based interventions are publicly proclaimed, making it possible to hold interveners
accountable for errors or abuses.
Nonetheless, the parallels between R2P and the
understanding of sovereignty that undergirds U.S. drone policy are troubling. I'm
no fan of the traditional legal conception of sovereignty, which has been used
to mask many abuses. But in a world with no meaningful international governance
structures, sovereignty -- even a weak and hypocritical conception of
sovereignty -- is one of the few bulwarks against unilateral overreaching by
Our fragile international order rests less on "law"
than on implicit bargains between states, and insofar as U.S. drone policy
further undermines traditional norms relating to sovereignty and the use of
force, it risks undermining those tenuous bargains. It risks sending the
message -- to friends and foes alike -- that we will no longer even offer much
pretence of respecting sovereignty. As a result, it risks undermining the fragile order we so
If we toss sovereignty into history's dustbin, what
will replace it?
U.S. Air Force Photo by Tech. Sgt. Effrain Lopez