ANGHIE - Rethinking Sovereignity in International Law

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19:52
Rethinking Sovereignty
in International Law
Antony Anghie
S.J. Quinney College of Law, University of Utah, Salt Lake City, Utah 84112-0730;
email: anghiet@law.utah.edu
Annu. Rev. Law Soc. Sci. 2009. 5:291310
Key Words
The Annual Review of Law and Social Science is

online at lawsocsci.annualreviews.org
self-defense, democracy and international law, imperialism
This articles doi:

10.1146/annurev.lawsocsci.4.110707.172355
Abstract
c 2009 by Annual Reviews.

Copyright
All rights reserved
1550-3585/09/1201-0291$20.00
Sovereignty has always been a controversial topic in international law.

The most prominent attempts to rethink sovereignty in recent times
have arisen out of the policies of the Bush administration, particularly its
conceptualization of self-defense and its attempts to promote democracy worldwide. This review explores the debates surrounding these
initiatives and the larger theoretical issues they raise about the relationship between international law and sovereignty. International law has
long struggled with the problem of how sovereign states that make international law can also be bound by it. Self-defense raises this problem
in a particularly acute form because it is one of the fundamental rights
of sovereignty and because it can be seen to precede the law itself. The
review also explores the various ways in which the relationship between
democracy and international law has been examined in the recent literature. Many of the analyses of sovereignty rely, either implicitly or
explicitly, on distinctions between different types of statesdemocratic
versus nondemocratic or, more broadly, responsible versus irresponsible states. The broad argument of this review is that the Bush administrations policies attempt to create an international legal system that
resembles in many ways a return to the imperial international law of the
nineteenth century.
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INTRODUCTION

Sovereignty is a topic that has obsessed and preoccupied scholars of international law through
the centuries. Debates about the nature of
sovereignty and its relationship to law have
been unrelenting; the subject has never been
uncontroversial, and, indeed, each phase of the
history of international law can be dened by
the character of these debates. For instance,
since its emergence international human rights
law has challenged the basic tenet of classical conceptualization of sovereignty, which asserts that a sovereign government has absolute legal authority within its own territory
over its citizens. Since the 1990s, scholars have
postulated the diminution of sovereignty in
an increasingly interdependent world (Schreur
1993), in part as a result of the collapse of the
Soviet Union, the triumph of the free market, the consolidation of the European Union
(Schieman 2007), and the intensication of
globalization. International law, classically, is
the law that governs relations among sovereign
states. In a parallel development, various other
entitiesmultinational corporations, international organizations, and new social movements, for instancehave been studied as
alternative sites of authority in the international system (Rajagopal 2003). Furthermore,
the growing number of ethnic conicts in Asia,
Africa, and Eastern Europe has raised questions
about the viability and future of the sovereign
state (Brooks 2005), and large-scale atrocities
in regions such as Kosovo and Rwanda have
led to searching attempts to reconceptualize
sovereignty as responsibility (Int. Comm.
Interv. State Sover. 2001) and to revisit the
theme of humanitarian intervention (Alston &
Macdonald 2008, Orford 2003, Engle 2007).
At a more theoretical level, the fundamental question of how law affects the behavior
of sovereign states continues to be the subject of ongoing inquiry (Goodman & Jinks
20022003).
Many of these debates continue and develop. But the most radical attempts to rethink sovereignty that have occurred in the
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Anghie
current decade have all, in one way or another,

originated in the events of September 11, 2001,
and its sequelae, most signicantly the Bush
doctrine of preemptive self-defense (PESD),
the Iraq War, and the broader war on terror
launched by the United States. Following 9/11,
the theme of sovereignty and security has been
a major focus of scholars who have attempted
to assess how terrorism and responses to terrorism have challenged or changed fundamental understandings about sovereignty, war, and
international order (Brunnee & Toope 2004).
In short, whereas the events of the 1990s appeared to herald the erosion of sovereignty, signied, for instance, by the creation of the World
Trade Organization in 1994, the 9/11 attacks
provoked a reassertion of sovereignty. This reassertion inevitably disrupted an international
system that, throughout the 1990s, had been
steadily developing a number of far-reaching
international regimes in elds such as international human rights law, economic law, and
criminal law.
The policies followed by the Bush administration are best articulated in The National
Security Strategy of the United States of America
(NSS) as presented in 2002 and 2006 (Bush
2002, 2006), and I have focused on these documents as a means of reviewing the broader debates about sovereignty and international law.
Here I examine the nature of these challenges
by focusing on two major aspects of the Bush
policies. First, Bushs PESD doctrine attempts
to expand the legal use of force and is intimately
connected to the concept of illegal or rogue
state against which such force may be directed
in accordance with the new doctrine. Second,
the Bush doctrine rethinks and revives the importance of what might be termed democratic
sovereignty for the international order and its
potential role in preventing terrorism and ensuring international peace and stability. In this
review, I attempt to sketch the debates about the
legal status of the Bush administration policies.
Furthermore, however, I seek to place these
initiatives in a more theoretical and historical
context. I argue, more broadly, that these efforts to rethink sovereignty resemble a return

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to the international law of the nineteenth century (Koskenniemi 2003).

Nineteenth-century international law permitted the sovereign recourse to force. In addition, it created and sought to enforce distinctions between civilized and uncivilized states
with the argument that one set of laws was applicable between civilized states in their mutual dealings but that another set of practices
was justied in relation to uncivilized states.
Most signicantly, within this jurisprudence,
uncivilized states were not properly sovereign;
as such, they lacked rights under international
law and could thus be legally attacked and conquered, all in the name of transforming and civilizing them. Viewed historically, the Bush doctrines, particularly regarding democracy and
sovereignty, extend certain arguments that had
been developed, through human rights law over
roughly the past 20 years. Almost paradoxically,
however, an extension of these late-twentiethcentury human rightsbased arguments, when
combined with doctrines of preemption, serve
to recreate something like a nineteenth-century
system of international law, one that furthered
and entrenched imperial relations.
International lawyers have long grappled
with the conundrum that the sovereign state
creates the law and yet is supposed to be bound
by it. The tensions inherent in this position are
especially pronounced when the very survival of
the sovereign entity is seen to be at stake. Thus,
the Bush administrations emphatic assertion of
sovereignty in its most basic and primordial
formthe right, in essence, of self-defense
raised profound and enduring questions about
the relationship between sovereignty and international law and, indeed, between sovereignty
and law itself.
THE BUSH DOCTRINE AND

ANTICIPATORY SELF-DEFENSE
The right of self-defense is regarded as a right
inseparable from and intrinsic to sovereignty
and could even be regarded as the very essence
of sovereignty. To the sixteenth-century jurist
Francisco de Vitoria (1530 [1917]), In war
everything is lawful which the defense of the

common weal requires. This is notorious, for
the end and aim of war is the defense and
preservation of the state. Thus, law itself is
constructed around the core principle of the
sovereign right of self-defense. The idea of
self-defense or self-preservation is powerfully
afrmed in natural law by scholars such as
Grotius (1625 [2005]) and, furthermore, provides the conceptual foundations of just war
theory, which has profoundly inuenced Western thinking on the ethics and legality of war
since the time of Augustine. The continuing
centrality of self-defense in the international
system is further suggested by the fact that the
International Court of Justice (ICJ) ruled that
it may be legal to use even nuclear weapons in
self-defensethis despite the fact that the use of
such weapons could very well trigger a nuclear
war and, furthermore, would in all likelihood
violate fundamental principles of international
humanitarian and human rights law (Int. Court
Justice 1996).
For precisely these reasons, the scope of selfdefense has posed enduring challenges to international lawa very broad concept of selfdefense such as, for example, an argument that a
state can use force against another party that has
violated a commercial treaty, would expand the
justications for engaging in war (Grotius 1625
[2005]). The Kellogg-Briand Pact of 1928 was
a culmination of the international communitys
attempts to outlaw war; but even here, it was
implicitly understood that war in self-defense
was permitted (Simma 1994). In contemporary
law, Article 2(4) of the UN Charter basically
prohibits war, with two exceptions: rst, when
war is authorized by the Security Council acting
under its Chapter 7 powers; and second, in selfdefense. Article 51 of the UN Charter states
that [n]othing in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a
member of the United Nations. It is notable
here that the right of self-defense is characterized, even within the charter, as being inherent
to sovereignty, prior to the modern law of the
charter itself.
www.annualreviews.org Rethinking Sovereignty in International Law
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The scope of this right has always been the

subject of debate. Nevertheless, as one eminent
scholar argued, following the tragic events of
9/11 and the war on terror declared by the Bush
administration, International law on the use of
force, its content and effectiveness, is now the
object of more speculation than ever before
(Gray 2004). The Bush administrations doctrine of PESD, which has caused this speculation, asserted:

For centuries, international law recognized

that nations need not suffer an attack before
they can lawfully take action to defend themselves against forces that present an imminent
[w]hen the consequences of an attack with

WMD are potentially so devastating, we can-
danger of attack. Legal scholars and international jurists often condition the legitimacy
of preemption on the existence of an imminent threatmost often a visible mobilization
of armies, navies, and air forces preparing to
attack.
We must adapt the concept of imminent threat
not afford to stand idly by as grave dangers

materialize. This is the principle and logic of
preemption. The place of preemption in our
national security strategy remains the same.
We will always proceed deliberately, weighing
the consequences of our actions. The reasons
for our actions will be clear, the force mea-
to the capabilities and objectives of todays

adversaries. . . .
The United States has long maintained the
option of preemptive action to counter a sufcient threat to our national security. The
greater the threat, the greater is the risk of
sured and the cause just (Bush 2006, p. 23).
inactionand the more compelling the case

for taking anticipatory action to defend ourselves, even if uncertainty remains as to the
time and place of the enemys attack. To
forestall or prevent such hostile acts by its
adversaries, the State will, if necessary, act
preemptively.
The United States will not use force in all cases
to preempt emerging threats, nor should nations use preemption as a pretext of aggression. Yet in an age where the enemies of civilization openly and actively seek the worlds
most destructive technologies, the United
States cannot remain idle while dangers gather
(Bush 2002, p. 15).
Notably, President Bush sought to justify

his position by invoking the pastcenturies
of international lawto meet the suddenly
and tragically revealed needs of the present.
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President Bushs assertion of this doctrine

prompted a number of other heads of state to
declare that they too would adopt such a policy. These included John Howard of Australia,
Sylvio Berlusconi of Italy, Tony Blair of Great
Britain, Junichiro Koizumi of Japan, and Ariel
Sharon of Israel (Gathii 2005). In contrast, the
doctrine was denounced by the vast majority of
nonaligned countries and also by France and
Germany (Gathii 2005).
President Bush reiterated the applicability
of the doctrine in the 2006 NSS, asserting that
Anghie
As Tuck (1999) has pointed out, the doctrine

of preemption is clearly a morally fraught matter, as by denition the aggressor has not actually been harmed, and his judgement about
the necessity of his action might well be called
into question both by the victim and by a neutral observer (p. 18). Notably, the UN Charter
does not provide explicitly for preemption, and
the difcult question has naturally arisen as to
whether a state must actually wait for an armed
attack to occur before taking defensive action,
as a literal reading of the charter suggests (for an
overview, see Jennings & Watts 1992, pp. 420
22; Franck 2000). Scholars are divided on this
issue. One view asserts that a highly circumscribed right to anticipatory self-defense exists
under customary international law and that this
residual right survives the UN Charter. Arguments in favor of anticipatory self-defense have
focused on an 1837 incident between Canada
and the United States that led U.S. Secretary
of State Daniel Webster to assert what is now
termed the Caroline doctrinethat anticipatory self-defense is permitted in the narrow

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circumstances in which there is a necessity of

self-defense, instant, overwhelming and leaving
no choice of means and no moment of deliberation ( Jennings & Watts 1992). Clearly, however, the Bush doctrine progresses well beyond
anticipatory self-defense, even as formulated by
champions of the Caroline doctrine, as it encompass not only imminent threats, but also emerging threats. This aspect of the doctrine appears
somewhat obliquely in President Bushs (2002,
p. 15) assertion that [t]he United States will
not use force in all cases to preempt emerging threats, nor should nations use preemption
as a pretext for aggression. While emphasizing that self-defense against emerging threats
must be distinguished from aggression, nothing
is suggested as to how this might be persuasively
accomplished.
The revolutionary character of the doctrine
was immediately recognized in a number of
different ways. On one hand, the U.S. legal
advisor of the time, William Howard Taft IV,
attempted to present a more limited version
of the doctrine. He asserted that after the
exhaustion of peaceful remedies and a careful,
deliberate consideration of the consequences,
in the face of overwhelming evidence of an
imminent threat, a nation may take preemptive
action to defend its nationals from unimaginable harm (Taft 2002). Taft stressed here the
element of exhausting peaceful remedies.
On the other hand, the then Secretary of
the United Nations, Ko Annan, declared in
emphatic terms that the Bush doctrine represents a fundamental challenge to the principles
on which, however imperfectly, world peace
and stability have rested for the last 58 years
(Annan 2003). He promptly initiated a study
of the issue of self-defense and appointed a
high-level UN panel to inquire into the matter
(United Nations 2004). The doctrine assumed
a major signicance for the international
system not only because of its abstract implications, but also because it had the potential to
be used to justify the looming war against Iraq.
An enormous body of scholarshippolicy
oriented, legal, philosophicalwas generated
by this issue, and this is hardly surprising, as
war is one of the central preoccupations in international law (Kennedy 2006). A review of
the positions taken reveals markedly contrasting approaches to sovereignty and the nature
and operation of international law.
Analyses that adopted a strictly doctrinal
approach focused on the Bush doctrines contravention of the explicit language of the UN
Charter and, furthermore, its extension well beyond the bounds of the Caroline doctrine. For
many scholars, this in itself rendered it illegal
(Bothe 2003, Brownlie 2003, Gray 2004). This
was even more so because the law preventing
the use of force, as embodied in Article 2(4) of
the UN Charter, would have been violated by
preemptive war, and this in a situation in which
Article 2(4), which prohibits the use of force,
has a special character; it is arguably a jus cogens
normthat is, a norm that states are compelled
to accept regardless of whether they had in fact
consented to it.
Scholars supporting the Bush doctrine departed from a narrow, literal approach to the
UN Charter. The 2002 NSS had emphasized
the fact that the doctrine of PESD was a response to new threatsmost particularly, to
rogue states and terrorists and to massive damage that could be wrought by modern weaponry
and, in particular, nuclear weapons. Advocates
for the doctrine thus argued that it was not a
departure from the law as it was understood
so much as it was an attempt to adapt an ancient doctrineone approved of by the great jurists, Grotius and Vattelto these new realities
(Greenwood 2003, Sofaer 2003, Zoller 2004).
More detailed arguments that followed
these general lines examined carefully the historical circumstances that supported the Caroline doctrine to demonstrate that it was devised
in a particular context, to address a broader
policy. The basic policy underlying the Caroline
was to enable states to protect themselves from
massive harm; in current circumstances, in
which such harm could result from the use of
chemical or nuclear weapons or terrorist attacks, the Bush doctrine became essential and,
indeed, was entirely consistent with the Caroline. Rather than focusing on the actual words of
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the UN Charter, then, by presenting the rule as

advancing various historically established policies, it become possible to argue that the Bush
doctrine is not only consistent with but actually
furthers the broad purposes of the UN Charter
(Sofaer 2003). It must be noted, however, that
even advocates of preemption differ in their
characterization of the doctrine. For Sofaer
(2003), for instance, the imminence aspect of
the Caroline means something like likelihood
of attack, which coheres more with the idea
of emerging threats, whereas Greenwood
(2003) is more conservative in insisting that
the requirements that the attack be imminent
cannot be ignored or rendered meaningless.
Given the signicance of the issuethe
preservation of the sovereign state in the international system and the constraints the United
Nations imposes on statesthe Bush doctrine
inevitably revived broader historical debates
about the very character and effectiveness of
international law and institutions. International
relations scholars such as E.H. Carr and Hans
Morgenthau (who had been initially trained as
a lawyer) had powerfully argued, many decades
ago (e.g., Carr 2001 [1939], Morgenthau 1962
[1948]), that interests drive state behavior and
that international law had very little impact on
states when it did not correspond with their
interests (Goldsmith & Posner 2005). Given
this, and given too that international law lacked
the support of effective enforcement mechanisms, it was foolhardy to rely on international
law and institutions to create international
peace and was entirely naive to imagine that a
matter as crucial as self-preservation could be
left in the hands of international institutions
(Yoo 2004). These classic arguments resonated
with proponents of the Bush doctrine, who
denounced the United Nationss ineffectiveness and, in particular, its failure to act
against Iraq despite its repeated violations of
Security Council resolutions. Broadly, the
United Nations had attempted to create a new
system of international law and order, but its
inadequacies entitled states to resort to an
older lawrepresented by the scholarship of
Grotius and Vattel, who had argued in favor

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of preemptive warin certain circumstances

(Sofaer 2003). Terrorism and the problem
of weapons of mass destruction (WMD) had
only emphasized the importance of a proper
strategy. The Bush doctrine was completely
necessary, and, indeed, any other response
in this Hobbesian world would have been a
dereliction of a sovereigns duty to his or her
people. In this view, the law of the United
Nations was obsolete, and a return to more
fundamental ideas of sovereignty and order
was required (Glennon 2003b).
SOVEREIGNTY AND
ROGUE STATES
Bush (2002, p. 14) stated in the NSS, We must
be prepared to stop rogue states and their terrorist clients before they are able to threaten or
use WMD against the United States and our
allies and friends. Given that preemption was
directed principally at rogue states, the question
immediately arose of how such states were to be
dened and whether international law played
any role in this process. In asserting that a different set of rules applied in relation to rogue
states and that such states could be attacked
even though they had not themselves engaged
in any direct aggression, the Bush administration relied on arguments that had been made
much earlier by Kant (1991 [1795]).
It was clear that Iraq, Iran, and North
Korea, notoriously members of the axis of
evil, were regarded as rogue states by the
United States. Thus, the question arose of
whether the war against Iraqonly looming at
the 2002 enunciation of the doctrinecould be
seen as an example of the Bush doctrine in action, an instance of preemption against a rogue
state. The rhetoric used by the Bush administration to sell the war to the public was entirely
consistent with the basic tenets of the doctrine:
A rogue state that possessed hidden WMD
that presented at the very least an emerging
threat to the United States had to be dealt with.
Scholars argued, then, that the war could have
been justied as a war of preemptionand this
in itself provides an indication of the reach of

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the doctrine (Yoo 2003, Taft 2002). Several of

these scholars scrupulously linked preemption
with international law and institutions, and
UN Security Council condemnations of such
states were presented as evidence of their rogue
status. Seen in this way, the United States was
merely taking action against states that have already been determined to be aberrant by a UN
Security Council that was too timid to follow
this condemnation with real consequences.
One important characteristic of the rogue
state was the relationship between states and
terrorist activity. Under the Bush doctrine,
force may be used, not only against emerging
threats, but also against states complicit in acts
of terrorism. Thus, states are responsible for
acts of violence committed by terrorists operating within their borders or with their support. Sofaer (2003), for instance, argues that
the restricted Caroline doctrine of self-defense
was limited to situations in which a state is
both willing and able to use its police powers
to prevent the attack sought to be pre-empted
(p. 220). In cases in which a state lacks such capacity or willingness, then it may be subjected
to the expanded version of preemption articulated in the Bush doctrine. The traditional law
of state responsibility held a state responsible
for such actions only if a very clear nexus existed between the state and the group causing
the violence. The Bush doctrine, by contrast,
proposes that a state can be held responsible
and be attackedeven if it participated only
passively in the operations of these terrorist
or armed groups. The war against Afghanistan
raised many of these issues, as Afghanistan had
never directly attacked the United States, which
nevertheless went to war in exercise of its right
of self-defense.
Broader attempts to give the term rogue
states a legal character suggested, for instance, that they could be dened as states
that possessed WMD, engaged in large-scale
human rights violations, and had a propensity
to use force in violation of international law
(Slaughter 2003). Awkwardly, subsequent
eventsthe Iraq War, Guantanamo, and the
scandal of Abu Ghraibindicated that such
denitions had the potential to include the

United States. On the whole, however, it seems
clear that, for the Bush administration, the
term rogue state was not one to be dened by
international standards as such. Rather, for the
administration, it referred to states that the
United States sees as implacably, ideologically
hostile and possessing, or seeking to possess,
weapons that could cause great harm and to
states that harbor or support terrorists. All
the proponents of preemption attempt to
prescribe limits to such a potentially large
doctrine: Thus, the threat must be imminent,
the dangers overwhelming, and so forth. But
none of these limits has any real effect because
what is emphasized most, even if implicitly in
the arguments made for preemption, is the
power of the sovereign entity to decide that it
is the victim of emerging threats. Self-defense
has always been problematic because of the
subjective element involved; this in itself has
not prevented the ICJ from making important
rulings as to whether claims of self-defense
were justied or not. It has stated in several
cases that the state claiming self-defense had
acted illegally. But PESD exacerbates the
problem of subjectivity even further, making
it difcult if not impossible to hold a state
accountable for violence applied in the name of
preemption. Attempts to present the doctrine
as responsible and precise keep stressing, for
instance, the importance of acting on sound
intelligence. But the disastrous failures of
the Bush administration with regard to the
intelligence connected with the Iraq War
raise profound questions as to how states that
commit such catastrophic mistakes are to be
held internationally accountable.
For the reasons outlined, the Bush doctrine
and its expanded concept of self-defense come
very close to making the use of force legal.
In this respect, it resembles in many ways the
situation in the nineteenth century because the
positivist philosophy that prevailed at that time
gave sovereigns unfettered power, and this
included the right to go to war. The only factor
that constrained states and discouraged them
from going to war was the balance of power, the
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political and military consequences that would

follow any act of war. The political system
in place discouraged action that was legally
permissible. Notably, however, that balance
of power system, when it nally collapsed,
did so with catastrophic consequences: the
large-scale violence of the Great War. In
addition, of course, as advocates for the right
to preemption argue, terrorist groups present
a major threat to world order, and such groups
are not subject to the systems of deterrence and
balance that restrain states in their actions. In
short, the stability of the nineteenth-century
balance of power can hardly be replicated in
the more complex political system of the early
twenty-rst century.
The broader implications of the Bush doctrine were considerable, given the basic principle of international law that all sovereign states
are equal; consequently, if indeed preemption
has become a part of international law, it is then
a right that can be exercised by all states, and this
is especially so in the case of self-defense, which
is fundamental to sovereignty itself. This scenario raises interesting questions and prospects,
given the tensions that exist, for instance, between India and Pakistan, both of which are
armed with nuclear weapons. It also raises the
interesting question of whether Iran or North
Koreaboth famously labeled as two of the
three members of the axis of evilcould act
preemptively against the United States, given
especially that the United States had already
invaded the third member of that trinity, Iraq.
If the Bush doctrine were to be instantiated
into international law, these rogue states would
seem to have every right to go to war with the
United States. Given the reality of U.S. military superiority, however, it is extremely unlikely that any state, even if threatened as Iran
and North Korea have been threatened, would
rationally dare to seek direct confrontation with
the United States. In these circumstances, the
idea of sovereign equality is nominally preserved even though political realities make it
evident that an ostensibly universal right can
only be enjoyed by a select and powerful few
states.

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For many scholars viewing the debate from

a broader and more historically oriented perspective, then, the Bush doctrine is an attempt to instantiate an imperial sovereignty
in the international system. A great deal has
been written about the Bush administration
in the context of the literature of empire and
hegemony ( Johnson 2008, P Fitzpatrick 2003,
Cohen 2004, Vagts 2001). Although theoretically preemption could apply to all states, the
United States articulated the doctrine never intending it to extend to its enemies. Indeed, under the logic of the doctrine, the attempts of
U.S. enemies to arm themselves could be interpreted by the United States itself as an emerging
threat and hence a basis for preemption. PESD,
then, becomes a right of the United States, and
the only other states that might dare assert such
a right are powerful states, such as the Soviet
Union, or close U.S. allies, such as Australia
and the United Kingdom. As advocates of the
doctrine assert, The US claim is essentially
an assertion of the right to review the policies
adopted by the other government and to override them whenever the US nds it necessary
(Benvenisti 2004, p. 691). For proponents of
hegemonic theory, it may make complete sense
to rely on the United States as the one sovereign
that possesses the true right of self-defense in
relation to which all others submit. In effect,
then, other states, particularly those that risk
being regarded as rogue states, are denied the
fundamental right to self-defense.
To many scholars this inequality is inevitable. The international legal system has always distinguished between Great Powers and
the rest (Simpson 2004) and has formalized inequalities in power by, for example, providing
the stronger powers with special rights, such as
the veto power enjoyed by permanent members
of the Security Council. As Benvenisti (2004)
argues, Formal inequality is part and parcel
of international law. The law bows to relative
military or economic power to bridge over differences, to accommodate needs, or simply to
maintain at least a semblance of coherence
(p. 694). Formal and informal inequality exist
in 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 a
reality in international law, plays a real and vital
role in promoting international justice.
Understandably, then, the Bush doctrine
was not readily accepted in the broader international community. This was evident in the
ndings of the United Nations itself, which extensively reviewed the law of self-defense and
concluded that the existing law addressed the
problems that concerned the United States. It
argued that preemption was unnecessary because under the existing law an emerging threat
could be addressed by the United Nations and
a more imminent threat could be met by the
defensive use of force permitted by Article 51
of the UN Charter. Seen from this broader historical perspective, this is an understandable attempt to reassert the law of the United Nations
as opposed to the law of the nineteenth century.
And the fact that the war on Iraq, understood
as an example of preemptive action against a
rogue state, was not the great success that was
initially anticipated by its principal architects
has further damaged the credibility of the Bush
doctrine.
But the UN report, of course, has not
in itself succeeded in resolving the broader
issues raised by the Bush doctrine, and the
political repercussions continue. For while the
Iraq War was intended to sound a warning
to rogue states intent on developing WMD,
it has achieved precisely the reverse effect
in the view of many scholars. As Joyner argues,
the Iraq War appears rather to have produced
the deleterious blowback effect of giving a
highly rational motivation to ofcials of such
states to expedite their WMD programs in
order to deter such action ( Joyner 2008,
p. 91). Ironically, then, the Iraq War seems to
have further encouraged states to seek WMD
and even nuclear weapons precisely to defend
themselves from the possibility of preemptive
attack. This raises the larger question of
how international law addressed the ongoing
problems presented by WMD and nuclear
weapons. Given the massively destructive consequences of the use of weapons such as nuclear
weapons, it is surely desirable that nuclear

disarmament should occur. Western efforts
led by the United States to dissuade other
states, most notably Iran, from engaging in
nuclear proliferation are complicated by the
fact that this seems somewhat hypocritical.
The nuclear states have done little to disarm
their obligations under the Non-Proliferation
Treaty notwithstanding. Indeed, they argued
before the ICJ that they had a right to use
nuclear weapons in self-defense (Int. Court
Justice 1996). What remains to be seen is how
the development by Iran of nuclear power
ostensibly for peaceful purposeswill be dealt
with, not only by the United States and the
United Nations, but, most particularly, Israel.
SOVEREIGNTY, DEMOCRACY,
AND INTERNATIONAL LAW
One of the central tenets of the NSS was its
emphasis on democracy and democracy promotion. Indeed, President Bush stated in the 2006
NSS that U.S. security depended on two pillars;
the rst involves working to end tyranny, to
promote effective democracies, and the second pillar of our strategy is confronting the
challenges of our time by leading a growing
community of democracies (Bush 2006, introductory letter). The Bush administrations focus
on democracy promotion, a major aspect of the
NSS of 2002, is further elaborated in the NSS
of 2006:
Championing freedom advances our interests
because the survival of liberty at home increasingly depends on the success of liberty abroad.
Governments that honor their citizens dignity and desire for freedom tend to uphold
responsible conduct toward other nations,
while governments that brutalize their people
also threaten the peace and stability of other
nations. Because democracies are the most
responsible members of the international
system, promoting democracy is the most
effective long-term measure for strengthening international stability; reducing regional
conicts; countering terrorism and terror
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supporting extremism; and extending peace

and prosperity (Bush 2006, p. 3).

Democratic states, then, have a special status in the international system because they
are more responsible and because democracy
is intimately linked with countering and preventing terrorism and enhancing international
peace and prosperity. Notably, the NSS of 2006
elaborates and develops the idea of democracy.
The holding of elections is not in itself sufcient. Rather, the NSS outlines a concept of
effective democracies that includes the protection of human rights, submitting to the will
of the people, embracing the rule of law and
preventing corruption, protecting civil society
from government intervention, and promoting
independent business and a market economy
(Bush 2006). Given this focus on democracy, it
is understandable that the greatest achievement
of U.S. policy since 2002, as recognized by the
NSS, is the overthrow of tyranny and its replacement with democracy in Afghanistan and
Iraq (Bush 2006).
Whereas the doctrine of preemption attempted to return to a preUnited Nations period in international law and relations, the idea
of democracy promotion expanded on many
UN initiatives to further the reach of democracy and to promote democratic governance.
Underlying these efforts is an argument regarding the relationship between democracy and international law that has used international law
to assist in the realization of a particular vision of international relations: the democratic
peace theory. Democratic peace theory derived in many important ways from Kants profoundly and enduringly important argument in
Perpetual Peace that states that have a republican constitution are unlikely to go to war without a proper cause because of the protections
built into such a system to prevent this (Kant
1991 [1795]). Importantly, Kant himself spoke
of a republican rather than a democratic constitution. But scholars in more recent times have
adapted and developed his basic ideas to formulate a far-reaching and comprehensive theory
which in its modern manifestation has taken the
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form of the theory of the democratic peace or

the liberal peace.1 The basic argument that
liberal/democratic states do not go to war with
each other is widely accepted as a law-like generalization among political scientists who study
international relations (Owen 2000, p. 343).2
As such, it followsand this is in fact what many
proponents of the theory advocatethat the
United Nations can achieve its ambitious goal
of creating a sustainable world peace, not by
evolving into a world government, but by promoting liberal democracy by whatever means
available (Owen 2000).
DEMOCRATIC SOVEREIGNTY
AND THE EMERGENCE OF THE
RIGHT TO DEMOCRACY
The Bush vision of democracy promotion relied
in important ways on international legal attempts, since the early 1990s, to promote democratic sovereignty. Under classical international
law, an entity is a state if it satises certain conditions: It must possess territory, population, and
government and the capacity to engage in international relations. Notably, then, traditional
international law does not stipulate that a state
has to establish a particular form of government in order to enjoy the rights of sovereign
statehood. This neutral approach to the character of government was a major problem for
democratic peace theory because it prevented
international law from ensuring that states possessed the type of government that was crucial
to ensure international peace and stability.
International human rights law promised
to address this problem. From the outset, the
protection of human rights was connected with
international peace (UN Charter Article 55).
The two terms are quite often used interchangeably, although scholars seeking to explain the phenomenon sometimes stress liberalism rather than democracy and vice versa
(e.g., see Owen 2000).
While an advocate of liberal peace, Owen (2000, p. 385)

warns against liberal crusades for such a peace arguing that
we may nd ourselves ghting perpetual war for the sake of
perpetual peace.

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Several human rights instruments, furthermore, addressed the issue of government, even
if somewhat broadly. The UN Declaration on
Human Rights prescribed that government
should be with the consent of the governed,
that the will of the people shall be the basis
of the authority of the government (UN Gen.
Assem. Resolut. 1948). Following that, Article
25 of the International Covenant on Civil
and Political Rights (ICCPR), for instance,
provides for the crucial right of political participation (UN Gen. Assem. Resolut. 1966).3
Broad principles of international human rights
law, it was assumed, were compatible with a
number of different political systemsranging
from communism to capitalism. Even by the
late 1980s, scholars writing on the right to
political participation concluded that this right
was relatively open-textured, a programmatic
right that could take different forms depending
on the cultural and political traditions of a
society (Steiner 1988). By the beginning of the
1990s, by contrast, scholars were enunciating a
specic right to democracy. The collapse of the
Berlin wall and the embrace of democracy by
many societies that had previously been under
dictatorship gave rise to the argument that state
practice itself indicated that democratic governance was now an international norm (Franck
1992, Fox 1992). Scholars such as Francis
Fukuyama provided powerful support for
these ideas by arguing that liberal democratic
government was the one form of governance
to which all societies were traveling with more
or less success (Fukuyama 1992, Marks 2000a).
One major dissenting position against some
of these initiatives was voiced by some Asian
states and scholars who questioned the universality of the human rights principles articulated by the West. Proponents of the Asian
Values argument asserted that Asian societies
favored stability and community over extensive
Article 25 of the ICCPR speaks, for instance, of the rights

of a citizen [t]o take part in the conduct of public affairs,
directly or through freely chosen representatives and to
vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage.
individual political rights. Human rights norms

had to be interpreted in the cultural context of
particular societies. Importantly, some of the
countries associated with the Asian Values argument, most notably Singapore, had achieved
extremely impressive levels of economic development and were able to provide their people with very high standards of living in a relatively short time (Kausikan 1993). But these
arguments subsided with the collapse of Asian
economies in the Asian crisis of 1997.
Human rights, then, became the major
doctrinal area through which the concept of
democratic sovereignty could be furthered and
fostered. Indeed, democracy acquired a certain
priority among human rights. It is noticeable
that the right to political participation is but
one of the rights enumerated in the ICCPR.
The ICCPR contains numerous other individual rights such as the right to a fair trial and the
right to be free of torture, for instance, which
are given equal importance, and indeed, appear
prior to the right to political participation in
the ICCPR. With the massive international
movement toward democracy that occurred in
the 1990s, however, there was a trend toward
articulating all these rights as being an aspect of
democratic governance. Democracy, then, was
identied as the controlling and decisive right,
one that both depended on these other rights
and, at the same time, preserved them in some
fashion. Needless to say, democracy itself is not
easy to dene. But whatever the complexities
of political theory, under international law the
right to political participation taken together
with other rights suggests a framework that
provides content for a more rened and detailed concept of democracy (Crawford 1994).
In addition to periodically held elections,
then, democracy also implied the protection
of a series of other rights provided for in the
ICCPR, including, for instance, the right to
free speech, which were functionally connected
with the broader right to democracy. These
ambitious projects were an important means,
furthermore, of combating the corrupt and
authoritarian rule that aficted many societies
in Asia and Africa (Okafor 2000).
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In this way, international human rights

norms took a more elaborate and comprehensive form that sought to give the internal political arrangements of a state a particular and
specic character. The optimism that accompanied the collapse of communism and the hopes
of a new, postCold War world order led to
the formulation of extremely ambitious programs of social engineering that international
law and institutions, nongovernmental organizations, and Western states began to embark on under the rubric of democratic governance or, even more broadly, good governance.
This concept of democratic governance was
intimately connected with a number of other
initiatives that attempted to promote all the institutions necessary to create a proper system
of governmenta government that adhered to
and promoted the rule of law, respected human
rights, and was open, transparent, and accountable. More critical scholars pointed out that the
emancipatory potential of democracy was being
undermined by its identication with a particular and limited set of institutions and a narrow
vision of political life (Marks 2000b).
At the institutional level, then, many organizations and international institutions became
heavily involved in activities such as election
monitoring as part of the project of democracy promotion. Even prior to the controversial
wars in Afghanistan and Iraq, elections managed by international institutions, most prominently the United Nations, were a crucial part
of the process of establishing a new nation, as
in the case of East Timor, or else, as in the case
of Cambodia, of somehow representing a break
from a sordid past and creating a new future
in which the country in question could take
its place as a proper member of the community of nations. Thus, international institutions
have become involved in complex and massive projects, termed state building or international territorial administration, of establishing
democratic governance in war-torn territories.
This emphasis on the importance of democratic governance was further reafrmed by the
fact that the Security Council of the United
Nations went so far as to impose sanctions on

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Haiti in the name of democratic governance.

This occurred in 1991 after President Aristide,
democratically elected to power under UNsupervised elections, was overthrown, and the
United Nations took action against the usurper
regime. Under the UN Charter, the Security
Council is authorized to act only in the event of
a threat to peace and security. Implicitly, then,
the overthrow of a democratic regime was seen
as being such a threat. Indeed, the UN actions
in Haiti gave rise to the argument that international law may even authorize prodemocratic
intervention.
The growing importance of democratic
sovereignty was also suggested by the policy of
the European Communities (as it then was), following the break up of Yugoslavia, to recognize
entities claiming to be independent sovereign
states only if those entities could establish that
they respected the provisions of various international 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 traditional criteria of statehood by focusing on
the character of government rather than on
the simple fact of control. The traditional view
focused on the question of whether the government has control over its territory and is therefore in a position to meet its responsibilities
with regard to it, rather than the political and
institutional character of the government itself.
For the EC, however, democracy was central to
sovereignty. To the extent that recognition by
states comprising the EC was crucial to achieving sovereignty, then, democracy was a precondition to being sovereign (Eur. Counc. 1991).
I have argued that the Bush doctrine of preemption was a signicant departure from the
established law of the United Nations. President Bushs emphasis on democracy promotion, however, extendedperhaps to the point
of distortioninternational norms and initiatives relating to democracy and democratic
sovereignty that had been taking place over
the past decade or so. With the 9/11 attacks,
these general theories were given a specic

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and pointed purpose and a further signicance.

Democracy was not merely desirable for philosophical reasons or because it protected human rights. Rather, democracy was now closely
associated with a number of other political
characteristicsbeing law abiding, adhering to
international norms, and protecting the rights
of individualsthat were deemed crucial for
the war against terrorism. Thus, the creation
and spread of democracy became a central element of the Bush foreign policy.
Given the basic premises of liberal/
democratic peace theory, it seemed to follow
naturally that international law itself should
reect this reality and that one international
law should exist for liberal states and another for nonliberal states (Slaughter 1995).
More ambitious formulations of the democratic peace theory, then, suggested that democratic sovereignty was superior to other forms
of sovereignty and that democratic sovereigns
were more likely to uphold international law.
The emphatic distinction between democratic
and nondemocratic states, and the further suggestion that different systems of international
law should apply to each group, reproduced in
many ways the system of nineteenth-century international law that asserted a structural distinction between civilized and uncivilized states and
that further decreed that civilized states were
sovereign whereas uncivilized states were not.
Once again, therefore, in this somewhat novel
manner, the major developments of modern international law, most prominently international
human rights law, were used to return to another, earlier phase in the history of international law.
INTERNATIONAL LAW AND

THE DEMOCRATIC DEFICIT
The democratic peace argument, as adapted by
international law scholarship, is based on the
assumption that democratic states have an inherent respect for international law: Democracy is a fundamental prerequisite for all human rights, and, further, democratic states are
run in accordance with the rule of law. It is
broadly presumed that respect for the rule of

law in the internal realm of a democratic state
corresponds with a respect for the rule of law
in the external realm of international law and
relations. However, the empirical and theoretical relationship between democracy and international law is more complex than much of
the literature might indicate because, as another important body of scholarship suggests,
it is precisely in the name of democracy that
states may justify departures from international
law. The much proclaimed virtues of democracy have been profoundly undermined by the
state that has been most intent on promoting
themthe United States itself. Guantanamo
whatever its futurehas become an enduring
symbol of the United Statess disregard for various principles of international human rights
and humanitarian law, and a vast, eloquent,
and sometimes incredulous literature now exists dealing with the impact of the war on terror
on 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 of
whether waterboarding is torture. More importantly, the invention of new categories, such as
unlawful enemy combatants, to deny a whole
group of individuals any of the protections offered by either human rights or international
humanitarian law raises the profound question
that had been eloquently presented by Hannah
Arendt: Is there a right to have rights? The basic
and in many ways revolutionary claim made by
international human rights law is that all human
beings have rights, no matter how dangerous,
depraved, or violent they may be. It was precisely this claim, perhaps the most powerful and
fundamental basis to human rights, that is being contested. Even more disconcertingly, these
justications for departing from international
law are often based on theories of democracy.
In addition, the argument that democratic
states are less likely to go to war because of
the constraints on executive power imposed by
such a system confronts the fact that this system does not always work as anticipated. The
U.S. Constitution has explicitly provided that it
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is the power of Congress to declare war. Even

so, as Glennon (2003a) has noted about the
United States, writing before the second Iraq
War, force has been used well over 200 times
throughout its history, and in only ve conicts
has Congress declared war (p. 323).
The idea that democracy and compliance
with international law are mutually supportive
is also problematic because, as Crawford notes,
classical international law is in many respects
deeply undemocratic. For instance, national
law, no matter how democratically established,
is not an excuse for failure to comply with international obligations (Crawford 1994). In
recent years, the undemocratic character of
international law has been explored by a body of
scholarship dealing with the democratic decit
arising from the expanding reach of international institutions whose decisions profoundly
impact people who have no means of inuencing those decisions. The democratic decit argument was associated in particular with the
emergence of the European Union (Weiler
1999) and the intensication of globalization
that involved a shift of power to nonstate actors including, most vividly, the World Trade
Organization.
The democratic decit argument acquired a
new and forceful character in the commencement of the war against terror because of
the inuential writing of a group of scholars, broadlyand awkwardlytermed the new
sovereigntists, who argue that international law
and institutions are unaccountable and nontransparent and that they lack the democratic
foundations of the U.S. system itself. New
sovereigntists argue that a government owes
its principal loyalty to its own people and to
a system of governance that addresses their
needs (Spiro 2000, Escorihuela 2005). The theory of democratic constitutionalism, on which
the U.S. system is based, provides a justication
for departing from international law that lacks
real democratic legitimacy (Rubenfeld 2004).
This argument characterizes international law
and institutions as often designed to be antidemocratic. As such, it is entirely justiable
for a state such as the United States to adhere

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to its own democratic traditions and to disregard international law. International law is not
to be completely repudiated, however; rather,
international law is something like a guideline
that may be followed when it is in the interests of the United States to do so (Goldsmith &
Posner 2005). In addition, these scholars argue
that international law is binding on the United
States, but only to the extent that it is properly incorporated into domestic law. Thus, the
Supreme Court of the United States examined
and applied international humanitarian and human rights norms when analyzing the treatment
of detainees because these laws were part of the
law of the United States (Hamdan v. Rumsfeld
2006). But this was because international law
had become part of the national law. In the
event of a conict between national law and international law, the same court would uphold
national law. On the international plane, however, as Crawford (1994) points out, national
law, no matter how democratically established,
is not an excuse for failure to comply with international obligations. At one level the rule
is obvious and would seem to have no adverse
implications for democratic government. At another level, however, the rule creates signicant
problems of democratic control. If an international obligation arises apart from a treaty, there
may have been no direct process of commitment to the obligation either by Parliament or
the elected leaders (Crawford 1994, p. 117).
The democratic decit argument is a powerful one. Indeed, it is especially relevant to
peoples living in developing countries that are
subject to economic structural adjustment programs by international institutions such as the
World Bank and the International Monetary
Fund that are not accountable to the people most affected by the decisions they make
(Chimni 2004). Signicantly, it further suggests
that democratic states are precisely those states
that can validly depart from international law.
For all these reasons, the relationship between democratic governance and compliance
with international law remains fraught and unresolved and is likely to generate a great deal
of scholarship. But it is clear, from both an

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empirical and a theoretical point of view, that

the proposition that democratic states are more
law abiding is open to question (Alvarez 2001).
The relationship between democratic peace and
the democratic decit theory clearly requires
further exploration. Of course, it may be argued
that democracy is somehow endogenous to certain states while it should be imposed through
international law on other states, and that it is
the former type of democratic state that can
properly depart from international law, while
the latter must abide by it. However, this approach then confronts the familiar problem of
how this distinction between different species
of democratic state is to made and enforced in
the international system.
INTERNATIONAL LAW
AND EMERGENCY
For new sovereigntists, then, the United States
is perfectly justied, indeed, required to violate
international law when that law is at odds with
the law of the United States or, more generally,
the principles of U.S. democracy. However, the
power of the various branches of government
is nevertheless limited and accountable because
it stems from the Constitution itself. International law cannot curtail the president; but the
U.S. Constitution may do so. Further, a departure from international human rights norms
does not leave the individual without any legal
protection; rather, rights are provided by U.S.
national law, which is understood to be more
detailed, comprehensive, and effective.
But it is also clear from the arguments made
by the Bush administration that, in times of
emergency, power is transferred to the president and that other institutions of government
such as the courts cannot and should not interfere with the decisions made by the president
to ensure the very survival of the state.4 For
This is what may be crudely termed the Grand Inquisitor

theory of democratic sovereignty in times of emergency: I
tell you man has no more agonizing anxiety than to nd someone to whom he can hand over with all speed the gift of
freedom with which the unhappy creature is born (Dostoyevsky 1975 [1958], p. 298).
advocates of strong executive powers, furthermore, it is not only international law, but
more importantly, other branches of government within the national system that are subordinate to the executive power in emergency
situations or that at least should show deference to the executive in these times (Yoo 2005,
Posner & Vermeule 2007). Strong arguments
have been made that in times of war the president, under the U.S. Constitution, has virtually unfettered power; in this case, compelling
concerns regarding self-defense take the form,
not only of the use of preemptive force, but
also of the recourse to measures that are not
expressly labeled as such but that international
lawyers may characterize as torture, imprisonment without charges, and renditions, all of
which are illegal under international law. The
Bush doctrines attempt to expand the scope of
self-defense to enable an easy recourse to war
can be seen within this broader framework as
an attempt to expand the reach of sovereignty
beyond the law itself through the invocation of
emergency or necessity.
Thus, another prominent characteristic
of discussions on sovereignty in this period
has focused on the relationship between the
powers of sovereignty and emergencyin
international law and constitutional law, and
also in more general theoretical terms that pose
the basic question: What is the relationship between law and emergency? For many theorists,
the character of sovereignty is inextricably
linked with this question (Schmitt 2005 [1985],
Agamben 1998). The true character and reach
of sovereignty are revealed in the state of
exception.
Emergency measures demand the exercise
of extraordinary powers, but are these powers
provided by law and constrained by law, or do
they somehow exist outside the law in order,
paradoxically, to preserve the very system of law
itself?
In the area of international law, the structure
of the United Nations provides in effect that
the Security Council has what may be termed
emergency powers: the power to determine,
for instance, whether there is a threat to
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peace and securitythe central concern of

the UN Charterand the power to create
binding obligations on states when the United
Nations acts under its Chapter 7 powers. The
signicance of these powers is such that the
Security Council decisions prevail as against
treaty obligations, under Chapter 103 of the
charter. What this provision makes clear is that
ordinary treaty law no longer applies when
emergency measures are taken. Whatever
its emergency powers, however, the Security
Council is subject to the law of the UN
Charter, which provides it with its own rights,
and the ICJ examines these issues. In the eld
of human rights law, the ICCPR provides that
states may derogate from certain provisions,
but that certain rights, including the right to
be free from torture, are nonderogable. Some
arguments have been made that the concept
of derogation should be extended to Article 51
of the UN Charter; states may derogate from
it when there is a threat and an emergency
situation arises (Benvenisti 2004).
In seeking to explore the issues of law in
a time of emergency from broader historical
and theoretical perspectives, scholars have inevitably turned to the work of scholars such
as Carl Schmitt and his inuential argument
that laws were devised to deal with normal
conditions; once exceptional events occur and
those conditions cease to exist, then the law
becomes irrelevant and only a strong executive can address the situation: What characterizes an exception is principally unlimited
authority, which means the suspension of the
entire existing order (Schmitt 2005 [1985],
p. 12; see also Gross & N Aolain 2006). Given
that the sovereign decides the exception, in
Schmitts scheme, it is unclear whether any limits exist to the exercise of absolute power in a
time of purported emergency. Confronted with
these dilemmas, scholars have offered different models on how a balance can be achieved
between legality and the need to exercise special powers in times of emergency (Gross
& N Aolain 2006, Dyzenhaus 2005, Ramraj
2008).

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One model suggests, for instance, that the

executive may break the law in times of emergency, but the consequences that follow from
this will vary depending on direct or indirect
popular ex post ratications of such activities
(Gross & N Aolain 2006). In other cases, the
model attempts to ensure that, no matter what
the character of the emergency, law plays an integral role in its management, and judges have a
special responsibility to ensure that this will be
the case (Dyzenhaus 2005). Complications remain, of course, given that terrorism, depending on how it is characterized, could give rise to
a permanent state of emergency. The enduring and perhaps unresolvable problem arises
from the paradox that the sovereign is both
within and outside the law. But the paradoxes of
sovereignty are an essential aspect of the very
discipline of international law, which is confronted by the analogous problem of how the
omnipotent sovereign that creates the law can
be simultaneously constrained by that law.
For other scholars, the relationship between
emergencies and the rule of law requires an understanding of imperial histories. While some
scholars trace this theme back to Roman times,
it is also clear that the British Empire was often
confronted with the question of how their claim
to be governed by laws and, indeed, to be furthering the law could be squared with the brutal
policies they adopted to quell native mutinies
and insurrections (Hussain 2003, Witt 2007).
What this suggests, however, is that, in the particular case of the war on terror and all it has
entailed, the invocation of emergency has a peculiarly colonial character.
CONCLUSIONS
The policies that animated the NSS of
2002 and 2006 and the war on terror more
generally represent the most radical recent
attempts to rethink the relationship between
sovereignty and international law. International
law is a creation of sovereign states. Selfpreservation is regarded as such an inherent aspect of sovereignty that the right of self-defense

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is characterized, even in the UN Charter, as

preceding the law. Nevertheless, modern international law has attempted to limit the exercise
of this right, because an unrestrained and undened right of self-defense will be seen as legitimizing war. The powerful idea persists, however, that self-defense is somehow outside the
law or else that the law should be amended to
allow self-defense in a form appropriate for all
exigencies.
Clearly, however, the arguments elaborating
these new ideas of sovereignty and international
order are entirely familiar and traditional. They
undermine the basic principle of international
lawthat all sovereign states are equalby effectively giving powerful states rights over less
powerful states. Furthermore, they develop a
vocabulary that distinguishes between states
hence liberal and nonliberal states, democratic
and nondemocratic states, premodern and postmodern statesand that justies the use of a
different set of rules for the inferior category of
states. Increasingly sophisticated ways of categorizing states in starkly dichotomous terms
have been a hallmark of recent attempts to rethink sovereignty, international law, and war
(Bobbitt 2008). The distinction having been
made, the great task is undertaken then of transforming the inferior, nondemocratic state into a
proper, functioning, democratic state. The possible illegality of the actions taken to achieve
these goals is inconsequential because of the
urgent need for self-preservation, even if this
involves the attack and transformation of rogue
states. In all these different ways, the attempts
to rethink sovereignty return us to the world
of nineteenth-century international law, where
the division between civilized and uncivilized
states was the foundation of a differentiated system of international law in which the uncivilized state was denied the rights of sovereignty
and could, thus, within the law, be conquered
and transformed. The paradox, however, as my

discussion of democratic sovereignty attempts
to show, is that it is precisely the democratic
state that makes powerful claims to deviate from
international law. The question that then arises
is whether there are any limits to what such a
state, ostensibly unfettered by international law,
can do.
Important
theoretical
analyses
of
sovereignty have attempted to explicate
the relationship between sovereignty and
the exception and, thereby, the relationship
between sovereignty and the law. It is through
the invocation of emergency, of necessity
invariably connected with ideas of self-defense
and self-preservationthat sovereignty has
attempted to expand. Theoretical discussions
of the nature of emergency or exception have
been powerfully illuminating, therefore, in
explicating the nature of the war on terror and
the maneuvers of the Bush administration. Further, this review argues that an understanding
that combines these theoretical insights with an
appreciation of the history of international law
are most useful in understanding how the exception has been used in the war on terror. The
sovereign exception here relies for its justication on a colonial imagerythe terrorist that is
denied any rights is the same as the savage who
knows no laws; the rogue state is the barbaric
other state of the nineteenth century. At the
same time that it invokes colonialism to expand
its power, it attempts thereby to reproduce
imperial relations that resemble those that
prevailed in the nineteenth century. One of
the effects of democratic sovereignty became
evident in the U.S. elections of November
2008. It is still unclear, however, whether international law will remain untouched, in one
way or another, by the primordial structures
and characteristics of sovereignty this review
has attempted to elucidate.
DISCLOSURE STATEMENT
The author is not aware of any biases that might be perceived as affecting the objectivity of this
review.
307
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24 September 2009
19:52
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Click here for quick links to

Annu. Rev. Law Soc. Sci. 2009. 5:291310

The Annual Review of Law and Social Science is

self-defense, democracy and international law, imperialism

This articles doi:

c 2009 by Annual Reviews.

Sovereignty has always been a controversial topic in international law.

Annu. Rev. Law. Soc. Sci. 2009.5:291-310. Downloaded from www.annualreviews.org

current decade have all, in one way or another,

Annu. Rev. Law. Soc. Sci. 2009.5:291-310. Downloaded from www.annualreviews.org

to the international law of the nineteenth century (Koskenniemi 2003).

THE BUSH DOCTRINE AND

everything is lawful which the defense of the

www.annualreviews.org Rethinking Sovereignty in International Law

The scope of this right has always been the

Annu. Rev. Law. Soc. Sci. 2009.5:291-310. Downloaded from www.annualreviews.org

For centuries, international law recognized

[w]hen the consequences of an attack with

not afford to stand idly by as grave dangers

to the capabilities and objectives of todays

sured and the cause just (Bush 2006, p. 23).

inactionand the more compelling the case

Notably, President Bush sought to justify

President Bushs assertion of this doctrine

As Tuck (1999) has pointed out, the doctrine

Annu. Rev. Law. Soc. Sci. 2009.5:291-310. Downloaded from www.annualreviews.org

circumstances in which there is a necessity of

www.annualreviews.org Rethinking Sovereignty in International Law

the UN Charter, then, by presenting the rule as

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of preemptive warin certain circumstances

Annu. Rev. Law. Soc. Sci. 2009.5:291-310. Downloaded from www.annualreviews.org

the doctrine (Yoo 2003, Taft 2002). Several of

denitions had the potential to include the

www.annualreviews.org Rethinking Sovereignty in International Law

political and military consequences that would

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For many scholars viewing the debate from

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(1998) argues, the idea of the equality of states,

weapons, it is surely desirable that nuclear

www.annualreviews.org Rethinking Sovereignty in International Law

supporting extremism; and extending peace

Annu. Rev. Law. Soc. Sci. 2009.5:291-310. Downloaded from www.annualreviews.org

form of the theory of the democratic peace or

While an advocate of liberal peace, Owen (2000, p. 385)

Annu. Rev. Law. Soc. Sci. 2009.5:291-310. Downloaded from www.annualreviews.org

Article 25 of the ICCPR speaks, for instance, of the rights

individual political rights. Human rights norms

www.annualreviews.org Rethinking Sovereignty in International Law

In this way, international human rights

Annu. Rev. Law. Soc. Sci. 2009.5:291-310. Downloaded from www.annualreviews.org

Haiti in the name of democratic governance.

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and pointed purpose and a further signicance.

INTERNATIONAL LAW AND

broadly presumed that respect for the rule of

www.annualreviews.org Rethinking Sovereignty in International Law

is the power of Congress to declare war. Even

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Annu. Rev. Law. Soc. Sci. 2009.5:291-310. Downloaded from www.annualreviews.org

empirical and a theoretical point of view, that

Editor: Stephen E. Fienberg, Carnegie Mellon University

Associate Editors: Nancy Reid, University of Toronto