Lee: A Puzzle of Sovereignty

CALIFORNIA WESTERN
INTERNATIONAL LAW JOURNAL
VOLUME 27 SPRING 1997 NUMBER 2

A PUZZLE OF SOVEREIGNTY
STEVEN LEE*

Sovereignty either is or is not.

-Stephen Leacock'

The subject of the sovereignty of the nation-state presents a puzzle. On

the one hand, the notion of state sovereignty figures importantly in our
descriptions of, and our prescriptions for, global political change. For
example, a natural characterization of the political changes in Eastern Europe
preceding and following the demise of the Soviet Union is that a number of
political communities have vigorously and often successfully asserted claims
to sovereignty. More generally, most of the events in the world political
arena are naturally understood as the sovereign actions of states. In addition,
many complain that sovereignty stands in the way of solutions to many of the
world's most pressing problems and ought to be abandoned, thereby implying
that it remains a reality. Thus, the notion of sovereignty continues to apply
to the realities of international political life and retains its explanatory
efficacy.
Against this is the claim that, as a result of the contemporary realities of
global affairs, sovereignty has become irrelevant, an anachronistic notion.
What is meant is not that sovereignty ought to be abandoned, that it is, as it
were, normatively irrelevant (though this claim is often made as well), but
rather that it has already ceased to exist. On this view, there are factors that
have drained states of their sovereignty by depriving them of the ability to
protect themselves and their citizens from the negative effects of the actions
of other states or outside groups. The most important of these factors is the

* Steven Lee received his Ph.D. in philosophy from York University and has taught for a
number of years at Hobart and William Smith Colleges. His chief areas of interest are
philosophy of law, social philosophy, and political philosophy. He has done extensive work on
the ethical issues raised by nuclear weapons policy, culminating in Morality, Prudence, and
Nuclear Weapons (Cambridge University Press 1993), and hopes to continue to explore the issue
of national sovereignty beyond the argument of this paper.
I would like to thank Thomas Pogge, Benjamin Daise, and an anonymous reviewer for
valuable comments on an earlier version of this essay.
1. GuY C. FIELD, POLITICAL THEORY 60 (1956).

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accelerating pace of global economic integration. Economic actions taken in

other parts of the world, over which a state has no control, can result in
great harm to its citizens. Often the actions with the harmful effects are not
under the control of any state, their agents being multi-national corporations
or large numbers of private individuals acting independently, such as
currency traders. Another major factor is the increasingly wide-spread and
detrimental human impact on the environment, an impact which, with effects
such as greenhouse-gas warming and ozone depletion, is now global. The
result of such factors is that states have lost the ability to insure their
citizens' security, especially their economic and environmental security. 2
The interconnections among states have deprived each of the self-sufficiency
necessary to achieve this security. Thus, states have lost their sovereignty.
As F. H. Hinsley puts it: "Since the body-politic is no longer self-sufficient,
but is denied freedom of action by the greater complexity of the international
context, it is no longer possible to credit it with the exercise of sovereign
power. "3
The puzzle thus presented, which is my purpose to attempt to solve, is
that the notion of sovereignty seems both continuingly important and
increasingly irrelevant to an understanding of world affairs. From one
perspective, sovereignty seems an enduring force in international relations,
while from another, its force seems spent. Sovereignty, it seems, both is and
is not. Another way to put the puzzle is to observe that the very factors
creating the international problems of which sovereignty is said to impede the
solution, such as global environmental damage, seem by their own workings
to have deprived states of sovereignty. Consideration of these factors
suggests both the presence and the absence of sovereignty.
The puzzle depends on understanding sovereignty in the way it has been
traditionally understood, that is, as absolute, such that it cannot both be and
not be. It cannot be partial. On the traditional view, "sovereign," like
"unique," cannot take certain qualifying adverbs, such as "partially." One
easy way to dissolve the puzzle is to claim that state sovereignty is not like
that. On this view, sovereignty can be partial, it can be partly lost and partly
retained, so that it can both be and not be. On this view, the traditional
notion of sovereignty is indeed irrelevant, and any talk of states as sovereign
in this sense is mistaken, a holdover of outmoded linguistic forms or a
nostalgic effort to recreate a state of affairs that can no longer be and perhaps
never was. The view that sovereignty is partial seems now to have wide
currency. For example, former United Nations Secretary-General Boutros-

2. Even though the factors here cited as undermining sovereignty are of comparatively
recent appearance, one should not think that sovereignty was not similarly problematic in earlier
times. For example, difficulties with communications and the collection of information at earlier
points in the modem age may also have seriously undermined sovereignty. I owe this point to
Thomas Pogge.
3. FRANCIs H. HINSLEY, SOVEREIGNTY 218 (2d ed. 1986). Hinsley goes on to criticize this
argument. Id.

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Ghali asserted: "It is undeniable that the centuries-old doctrine of absolute

and exclusive sovereignty no longer stands, and was in fact never so absolute
as it was conceived to be in theory. "4 But I want to explore the idea that the
puzzle runs deeper than this easy dissolution suggests. I want to explore the
idea that it is possible to regard contemporary states as sovereign in the
traditional sense without denying facts of the sort that naturally lead one to
deny that states are sovereign in this sense.
My concern is the descriptive adequacy of the traditional notion of
sovereignty, not the prescriptive issue of whether or not sovereignty in this
sense is a good thing. The descriptive question is an important preliminary
to the prescriptive one. Given the frequent appeal to the notion of sovereign-
ty in our description and explanation of world affairs, the future of
international relations will inevitably be understood by us in terms of this
notion, whether it is a future of sovereignty retained or of sovereignty lost.
In this sense, the future of world affairs is the future of sovereignty, and by
better understanding the notion of sovereignty we will be better able to
appreciate the nature of that future and to work to form it. I begin in the
first section with some general discussion of the nature of sovereignty,
continue in the second section with a proposed solution to the puzzle, and
conclude in the third section with a brief application of the analysis to our
current situation.
I.

Consider a classic definition of the traditional notion of sovereignty,

offered by John Austin: "The generality of the given society must be in the
habit of obedience to a determinate and common superior; whilst that
determinate person, or determinate body of persons must not be habitually
obedient to a determinate person or body." 5 When these conditions are
satisfied, when there is a group that others habitually obey, but that does not
itself habitually obey others, the society is sovereign and the determinate
group satisfying the conditions is the sovereign of that society, its
"uncommanded commander." When a society is sovereign, it is an
"independent political society," that is, a state. But sovereignty is generally
taken to be necessary as well as sufficient for statehood. Thus, strictly
speaking, the claim that a state is sovereign is a tautology and the expression
"sovereign state" is a pleonasm.'
According to the traditional notion, sovereignty is absolute. This has

4. Louis HENKIN ET AL., INTERNATIONAL LAW 18 (3rd ed. 1993).

5. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 195 (London,
Weidenfeld and Nicolson 1955) (1832) (emphasis omitted). Though Austin speaks of the
sovereign as an individual person or a group of persons, I will henceforth speak of the sovereign
as a group, ignoring the possibility of an individual sovereign, which is certainly an
anachronistic notion.
6. Bernard Crick, Sovereignty, INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL SCIENCES,
vol. 15, at 77 (1968).

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often been understood to mean that the power of the sovereign is unlimited. 7
Why is it thought that a state must be sovereign in this sense? The problem
in political theory out of which this notion of sovereignty arose, the problem
central for Hobbes, is how social order is to be maintained in the face of the
tendency to disorder, the tendency toward the "state of nature." The
problem was seen as soluble only if there is in society an authority that is
unchallenged, in the sense that its power is not limited by other groups in
society. In the absence of such an authority, it was argued, there could be
no lasting social order. Thomas Pogge rehearses the argument:

A juridical state (as distinct from a lawless state of nature) presupposes an

absolute sovereign .... A juridical state, by definition, involves a recog-
nized decision mechanism that uniquely resolves any dispute. This
mechanism requires some agency because a mere written or unwritten code
• . .cannot settle disputes about its own interpretation.'

If sovereignty is to play the role of guaranteeing social order, the sovereign's

power must be unlimited in relation to other human agency within the
society, because, if it were not, the sovereign could not resolve all disputes..
Social order would not be possible in the absence of such an authority.
The argument that sovereignty must be absolute in this sense can be
criticized on both theoretical and practical grounds. Pogge argues that it is
theoretically flawed on the grounds that no possible decision mechanism,
even one involving a monarchical sovereign, could guarantee a resolution of
all disputes, so that "if that were what it takes, then in principle we could not
transcend the state of nature." 9 This shows that even if the power of the
sovereign were unlimited, it could not do what proponents of absolute
sovereignty believe must be done to preserve social order. The theoretical
criticism dovetails with the practical criticism, which calls attention to the
fact that states exist and function quite well without their ruling groups
having unlimited power. Despite the fears of those who believe that
sovereignty requires unlimited power, we know from experience that limited
government works.' 0 Even in Austin, one finds criticism of the claim that

7. The power of the sovereign is sometimes characterized as being not only ultimate and
unlimited, but also undivided. I have left out this characteristic, because it seems inconsistent
with the idea that the sovereign can be a group. To say that the sovereign's powers are
undivided cannot mean that they are not divided within the sovereign group, and if it does not
mean this, it is not clear what it means. One thing it might mean is that sovereign power cannot
be divided among levels of government, that it cannot be divided vertically, a crucial point for
later discussion.
8. Thomas Pogge, Cosmopolitanism and Sovereignty, 103 ETHics 59 (1992).
9. Thomas Pogge, Moral Progress, in PROBLEMS OF INTERNATIONAL JUSTICE 302 n.2
(Stephen Luper-Foy ed. 1988).
10. In addition, given that states that do not have ruling groups with unlimited power not
only exist, but prosper, it is implausible for defenders of this notion of sovereignty to respond
that their notion is meant to be prescriptive, rather than descriptive or analytic. Crick mentions
the distinction among descriptive, analytic, and prescriptive understandings of sovereignty,
though he suggests that a prescriptive understanding is not implausible. Crick, supra note 6,

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sovereignty requires unlimited power. Indeed, such criticism is implicit in

his definition, for the phrases "generality" and "habit of obedience" allow
some slippage in the effectiveness of the exercise of the power and such
slippage seems inconsistent with the idea that the power is unlimited. Austin
confirms this implication when he criticizes the view of Grotius that
sovereign power "is perfectly or completely independent of other human
power." Citing various ways in which the power of the sovereign is limited,
Austin asserts that if such independence is essential to sovereign power,
"there is not in fact the human power to which the epithet sovereign will
apply with propriety.""
Such criticisms of the idea that the ruling groups of states must have
unlimited power have led many to substitute for the notion of absolute
sovereignty the notion of partial sovereignty. But we should not be so quick
to accept the contemporary view that sovereignty can be partial. For the
claim that sovereignty is absolute need not be understood as implying that the
sovereign possesses unlimited power. Rather, it may simply be entailed by
the fact that sovereignty is a threshold concept. Threshold concepts are
concepts that apply in an all-or-nothing fashion when certain variable
background conditions are satisfied, when those conditions have reached a
certain threshold of intensity. Legal concepts often are like this. For
example, "adult" is a legal concept that applies in an all-or-nothing fashion
once a person has reached a certain threshold age, such as eighteen.
"Autonomy," in one of the several ways in which it applies to individuals,
functions as a threshold concept as well. In this sense, young children are
not autonomous, while most adults are. The relevant difference between
young children and most adults is that the actions of most adults are
substantially voluntary, whereas the actions of young children are not.
"Autonomy," in this sense, signals the achievement of a threshold level of
maturity wherein one's actions are substantially voluntary. It is an all-or-
nothing concept. If one's actions are less than substantially voluntary, it is
not the case that one is partially autonomous, rather one is not yet autono-
mous. "Autonomy" can be used in ways in which it does not function as a
threshold concept, ways in which the phrase "partial autonomy" makes
sense. But it has an important use as a threshold concept, to signal an
significant quality possessed by most adults, and we have other concepts,
such as voluntariness, with which to talk about the ways in which maturation
is a matter of degree.
While "sovereignty" too can be used in other ways, I believe that its
primary use, as applied to states, is, like "autonomy," as a threshold
concept.12 The background variable in the case of sovereignty is power.

at 77.
11. AUSTIN, supra note 5, at 214.
12. For a discussion of the analogy between the notions of autonomy and sovereignty, see
JOEL FEINBERG, HARM TO SELF 27-51 (1986).

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Perhaps the most important feature of a state is that it has a ruling group
which is significantly more powerful than other groups within that society.
"Sovereignty" is the term we use to designate the presence of this feature.
Thus, we may say that sovereign states require political organizations that
possess a substantial preponderance of power relative to other domestic
groups and social organizations. 3 As a threshold concept, sovereignty is
all-or-nothing: a state either has a ruling group possessing a substantial
preponderance of power or it does not. (If it does not, we may not even call
it a state.) Whether a state is sovereign depends on the degree of relative
power its ruling group possesses, but the state's sovereignty is not a linear
function of this relative power. While the power may be partial, the
sovereignty is not. Of course, the threshold is a vague one. Austin refers
to the standard of sovereignty as a "fallible test," comparing it to such legal
notions as "reasonable diligence." Given some intermediate case, whether
it be an instance of a sovereign state may be "impossible to answer with
certainty, although the facts of the case were precisely known.""4 But one
should not confuse vagueness of standard with variability of standard. It may
be hard, even impossible, to determine if sovereignty is present in some case,
given the vagueness of the standard, but this does not entail that the case is
one of partial sovereignty.
On this understanding of sovereignty, the role of the concept is to mark
an important and distinctive feature about states, namely, that they have
ruling groups which possess a substantial preponderance of power, just as
autonomy, in the sense discussed, marks an important and distinctive feature
of adults, namely, that their actions are substantially voluntary. In each case,
it is important to have a concept to play this role and what is needed is a
threshold concept, one that applies in an all-or-nothing fashion. There are
other concepts (power and voluntariness) available if we wish to speak of the
variable and partial character of the phenomena underlying these features.
Thus, the traditional idea that sovereignty is an absolute is correct, but not
in the way that this is often understood. Sovereignty is not absolute in the
sense that the power it represents is unlimited, but rather in the sense that the
concept applies in an all-or-nothing fashion. Sovereignty does not represent
unlimited power because the threshold for its application is merely the
substantial preponderance of power. But because "sovereignty" is a
threshold concept, any amount of power short of that does not imply partial
sovereignty. Two conflicting conclusions have been drawn from the view
that sovereignty represents unlimited power. The first, drawn by proponents
of absolute sovereignty, is the claim that a state cannot be sovereign unless
the power of its ruling group is unlimited. The second, drawn by those who
have abandoned the idea of absolute sovereignty, is the claim that if a state

13. For a discussion of the relationship between the concepts of sovereignty and political
power, see HINSLEY, supra note 3, at 1.
14. AUSTIN, supra note 5, at 204, 205, 207.

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does not have a ruling group with unlimited power, its sovereignty is partial.
Each of these conclusions is mistaken.
But this observation about the concept of sovereignty does not by itself
yield a solution to the puzzle of sovereignty. For, while a ruling group need
not possess unlimited power for its state to be sovereign, it must possess a
substantial preponderance of power. The factors cited in the statement of the
puzzle, however, suggest that the power of the state has fallen below this
threshold, in so far as the state lacks the ability effectively to assert its
independence in the face of a variety of forces impinging on it from the
outside. It does not seem that a state's power can be substantially preponder-
ant, however vague this standard might be, if it does not have the ability to
keep these forces more effectively at bay. So, the puzzle remains, and the
search for a solution must continue.
Let us return to Austin's definition. As he notes, it has both a positive
and a negative aspect: the sovereign is habitually obeyed by others and does
not habitually obey others. The sovereign commands and is uncommanded.
This represents a fundamental divide in the theory of sovereignty. There is
sovereignty in the state and sovereignty of the state. 5 Sovereignty concerns
a certain type of relation within the state (the positive part) as well as a
certain type of relation (or lack of relation) between the state and outside
parties (the negative part). The power of the sovereign makes it internally
supreme, where it commands, and makes the state externally independent,
where it is uncommanded. These two aspects, supremacy and independence,
are referred to as internal sovereignty and external sovereignty. But these
terms refer not to different sovereignties, but rather to different perspectives
on sovereignty. Sovereignty can be viewed either internally or externally.
The puzzle of sovereignty sketched at the beginning is a puzzle of
external sovereignty. But a parallel puzzle might be generated in regard to
internal sovereignty. It could be argued that the power of various groups
within the society is sufficient to deny to the ruling group the supremacy
necessary for sovereignty. For example, in some states, the government may
be largely under the control of domestic business interests. To the extent
that this puzzle holds, it should be similar in some respects to the puzzle of
external sovereignty. This suggests that finding a solution to one puzzle
would be helpful in finding a solution to the other. Writers on sovereignty
have made a number of points that either were intended as, or would be
useful in constructing, a solution to the puzzle of internal sovereignty, so it
is worthwhile to consider these points in the hope that they may help in
finding a solution to the puzzle of external sovereignty.
The puzzle of internal sovereignty is that the apparent reality of internal
sovereignty flies in the face of the ability of various domestic forces seriously
to challenge the power of the ruling group of the state. A solution to this

15. FEINBERG, supra note 12, at 48. See also GERALD MACCALLUM, POLITICAL
PHILOSOPHY 137 (1987).

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puzzle may be found by exploring the idea that "sovereignty" is an

ambiguous term. For example, S. I. Benn and R. S. Peters note that it may
denote either supreme legal authority or supreme ability to induce others'
compliance through coercion. In other words, sovereignty may be a measure
of either legal power (or competence) or coercive power. To avoid the
ambiguity, one can draw a distinction between the two types of power and
hence two types of sovereignty. Benn and Peters refer to the first as de jure
sovereignty, the right to command, and the second as defacto sovereignty,
the ability to command. The first may also be called legal sovereignty and
the second coercive sovereignty. "Legislators usually do determine other
people's behaviour in ways they intend. But there is no warrant for inferring
that the de facto authority or power arising from supreme competence will
also be supreme."' 6 De facto authority may, for a short time at least, be
separated from legal competence. In situations where the military has
escaped effective civilian control, for example, legal and coercive sovereignty
may temporarily lie with different bodies. While there is a strong link
between legal and coercive power, due to the fact that legal power cannot
survive long estranged from coercive power, it was Austin's mistake not to
appreciate the distinction between the two. They are different types of
power, sources of different types of sovereignty, which, though linked, may
occasionally and temporarily be located in different groups in society.
To pursue this strategy further, consider A. V. Dicey's remark that the
sovereign power of Parliament is not unlimited because, "there are many
enactments . . .which Parliament never would and (to speak plainly) never
could pass." These are laws that the citizens would simply not tolerate, such
as a legislative attempt to outlaw a popular religion. Dicey refers to the
"possibility or certainty that his subjects.., will disobey or resist his laws,"
as an "external limit" on the sovereign.17 Benn and Peters note this as
well, and, like Dicey, cite in this regard Hume's observation that power
ultimately rests on the opinion of others.18 But instead of understanding this
common-sense point about the limits of political power as revealing a
limitation on sovereignty, one could instead see it as calling for a further
distinction. Harold Laski moves in this direction: "The power Parliament
exerts is situate in it not by law, but by consent, and that consent is, as
certain famous instances have shown, liable to suspension." Laski suggests
that this shows the need for a different understanding of sovereignty,
concluding that we must "find the true meaning of sovereignty not in the
coercive power possessed by its instrument, but in the fused good-will for
which it stands." 19 But instead of saying that this is the meaning of

16. STANLEY I. BENN AND RICHARD S. PETERS, THE PRINCIPLES OF POLITICAL THOUGHT
301-02, 303 (1959).
17. ALBERT V. DICEY, THE LAW OF THE CONSTITUTION 26, 30 (1982, reprint of 8"' ed.
1915).
18. BENN AND PETERS, supra note 16, at 305-07; Dicey, supra note 17, at 30-31.
19. HAROLD LASKI, STUDIED IN THE PROBLEM OF SOVEREIGNTY 12, 15 (1968).

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sovereignty, one could simply say that it is a meaning. Dicey suggests this
when he notes that "the word 'sovereignty' is sometimes employed in a
political rather than in a strictly legal sense." He distinguishes between legal
and political sovereignty. "That body is 'politically' sovereign or supreme
in a state the will of which is ultimately obeyed by the citizens of the state."
He goes on to identify this body as the electorate. 20
This is popular sovereignty, the familiar idea that ultimate political
power lies with the people. But there is an important difference between the
ideas of popular sovereignty that Laski and Dicey have in mind. Dicey is
speaking of the power of a democratic electorate to make and unmake
governments, while Laski seems to be referring to the power of the people
to deprive officials of their power by refusing to comply with their directives
or, ultimately, by eliminating them through revolution. The former is a
legally sanctioned exercise of power and the latter is not, the contrast
between the de jure ballot and (at the extreme) the de facto bullet. The
former exists only under a democratic form of government, but the latter
exists under any form of government. To mark the contrast, I will refer to
Dicey's political sovereignty as electoral sovereignty and to Laski's notion
of sovereignty as civil sovereignty. Again, each form of sovereignty
represents a different kind of power, electoral and civil power, we may call
them. The idea of civil sovereignty is that the populace, comprising civil
society in distinction from the state, holds civil power through its aggregate
ability, whether exercised actively or passively, to comply or to refuse to
comply with the directives of state officials, thereby rendering the directives
and their issuers effective or ineffective.
But civil power (and civil sovereignty) may be understood more broadly.
The extreme assertion of this power is the deliberate efforts of a large mass
of the population to overthrow the state. But it also encompasses the effect
of public opinion on officials and the activities of political parties, which
seek not to overthrow the state, but to determine those who run it. (The civil
power of political parties is separate from, though it seeks to work through,
the electoral power of the members of the franchise.) More generally, the
exercise of civil power may depart from the revolutionary model in three
important respects. First, civil power may involve the activities of relatively
small groups rather than large masses.2" Second, the effect of the activities
may be not to deprive officials or their directives of effect, but ratht.," to
influence what directives officials will issue or enforce. Third, groups
exercise civil power when their activities have such effects on the state,
whether or not members of the group directly intend these effects. The first

20. DICEY, supra note 17, at 27. See also Crick, supra note 6, at 81.
21. This distinction between the exercise of civil power by large and small groups is noticed
by Austin, who observes: "In every monarchy, the monarch renders habitual deference to the
opinions and sentiments held by his subjects. But in almost every monarchy, he defers
especially to the opinions and sentiments . . .of some especially influential though narrow
portion of the community." AUSTIN, supra note 5, at 218 n. 17.

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two qualifications are designed to capture the activities of special interest

groups, which may be composed of a relatively small number of individuals
and which generally seek not to overthrow the state, but simply to make its
directives more compatible with their interests. The third qualification is
meant to recognize the ways in which state directives are influenced by the
aggregate effects of many individuals acting independently, as, for example,
in the activities of bond traders, whose aggregate buying and selling may
cause the government to modify its economic policy. Civil power includes
all of the nonelectoral ways in which nonofficials can determine who the state
officials are, the effectiveness of their authority, or the content of their
directives.
It seems, then, that there are four types of power which can serve as the
basis for distinguishing among different types of sovereignty. They may be
arrayed as follows:

MODE OF POWER (OR SOVEREIGNTY)

de iure de facto
officials legal power coercive power
(sovereignty) (sovereignty)

locus of
power (or electoral civil power
sovereignty) populace power (sovereignty)
(sovereignty)

Both legal and coercive power lie with government officials, although, as
noted earlier, they may temporarily lie with different groups of officials,
neither subordinate to the other in terms of its own form of power, as when
the military escapes civilian control. Legal power is de jure, in that it is a
matter of competence or right, while coercive power is defacto, in that it is
a matter of the ability to wield force, a matter of guns. Here we keep apart
what Austin tried to meld when he sought to reduce law to coercive power.
In contrast, both electoral power and civil power are in the society but not
of the state, since they lie with the populace. Civil power lies with both
small and large groups, while the portion of the populace with which
electoral power lies depends on the extent of the democratic franchise.
Electoral power is de jure, because the power of the electorate is a result of
its legal status, present in a democracy and otherwise absent. Civil power,
on the other hand, is defacto because it lies in the capacity of the populace
to act in civil society, independent of legal constitution.
Political power is, thus, not a univocal notion, but comes in a variety of
types. Different groups in society hold different amounts of different types
of power. A claim about sovereignty is a claim about the supremacy of

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some group in regard to a particular type of power. Generally, the claim

that the state is sovereign is a claim that the ruling group in that society is
legally and also coercively sovereign, hence it is a claim about that group's
legal and coercive supremacy. Other groups in society will have supremacy
in regard to elective and civil power, so it may make sense to speak of them
as holding elective or civil sovereignty. This is how the notion of popular
sovereignty, sovereignty of the people rather than the state, may be
understood. Whether or not the notion of popular sovereignty makes sense,
however, what is crucial for the argument is that the type of sovereignty
attributed to the state concerns specifically legal and coercive power. If the
ruling group of a state is judged in terms of its legal and coercive power,
then the state may be sovereign despite the fact that other groups in society
have supremacy over the ruling group in terms of other types of power.
Thus, the solution of the puzzle of internal sovereignty is that, while the
ruling group of a state may be subject to the power of other groups in
society, if the ruling group has legal and coercive supremacy, the state wiil
be sovereign.22 If one claims that sovereignty is absent because the ruling
group of a state can be voted out of office or overthrown by a popular revolt
or bought off by business interests, the response is that state sovereignty
remains, because none of this shows that the ruling group does not have legal
and coercive supremacy.
In addressing the puzzle of internal sovereignty, it is important that the
argument just rehearsed, namely, that claims of sovereignty concern specific
types of power, be joined with the earlier observation that "sovereignty"
functions as a threshold concept. For in many states, if not in most or all of
them, neither the legal power nor the coercive power of the ruling group is
unlimited. Legally, many states are organized on principles of federalism,
are based on doctrines of common law, or have written constitutions, all of
which place legal limitations on the ruling group. So, if sovereignty were
a function of unlimited power, not even making sovereignty specific to legal
power would be sufficient to preserve it. But, given the threshold nature of
the concept, the state is sovereign so long as legal and coercive power of its
ruling group is substantially preponderant.2' This is what the legal and

22. One other solution to the puzzle of internal sovereignty deserves mention. Bernard
Crick distinguishes between "the time of sovereignty and the time of politics." The notion of
sovereignty does not apply to "normal political conditions in which it is recognized-and acted
upon-that power is divided and that the business of government is creative conciliation."
Rather, it applies to "conditions of emergency in which normal constitutional rules have to be
set aside if the state is to survive." Crick, supra note 6, at 81. In states of emergency,
someone or some group may assume something like the absolute power envisioned by Hobbes
and others, and it is only for describing such a time that the notion of sovereignty is useful. In
the words of Carl Schmitt: "Sovereign is he who decides on the exception." CARL SCHMITr,
POLITICAL THEOLOGY 5 (Cambridge, MIT 1985).
23. Even though Austin implicitly acknowledges that the coercive power of the state is not
unlimited, by his use of "generality" and "habitually" is his definition, he nonetheless claims
that the legal power of the state is unlimited, apparently under the sway of the Hobbesian
argument discussed earlier. AUSTIN, supra note 5, at 254.

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coercive supremacy of internal sovereignty requires. For example, the

United States is sovereign because it holds preponderant, though not
unlimited, legal power vis-a-vis the individual states of the federal union, but
the states are not sovereign, because, though they hold some legal power vis-
a-vis the federal government, their legal power is not preponderant. Now
that a solution of the puzzle of internal sovereignty has been sketched, we
should turn our attention again to the puzzle of external sovereignty.

II.

As internal sovereignty is a matter of supremacy, external sovereignty

is a matter of independence. External sovereignty represents "the principle
that internationally, over and above the collection of communities, no
supreme authority exists." '24 A sovereign state is independent in the sense
that there is no supreme authority above it that can interfere with its freedom
of action within its realm. It is, in Austin's language, an "independent
political society." The notion of sovereignty also includes the idea of
"sovereign immunity," that is, the right of states "to have other states
recognize their sovereign acts." ' Thus, external sovereignty is freedom
from interference not only on the part of a would-be supranational authority,
but also on the part of other states. As independence or freedom from
outside interference, external sovereignty is self-governance. Internal
sovereignty is freedom-to, while external sovereignty is freedom-from.
Consider the following language, drawn from a United Nations'
resolution:

No State has the right to intervene, directly or indirectly, for any reason
whatever, in the internal or external affairs of any other State. . . .No
State may use or encourage the use of economic, political or any other type
of measures to coerce another State in order to obtain from it the
subordination of the exercise of its sovereign rights, or to secure from it
advantages of any kind.26

This language, in effect, prescribes the complete independence of states. It

is clear that this prescription not only has not been fulfilled, but that it could
not be fulfilled. Werner Levi observes that the realization of this prescrip-
tion "would eliminate all international politics because by their nature they
always involve a measure of pressure or influence." He continues: "This
is a vain attempt to dissolve a dilemma by denying the social facts of interna-

24. HINSLEY, supra note 3, at 158.

25. WERNER LEVI, CONTEMPORARY INTERNATIONAL LAW 89 (2d ed. 1991).
26. Id. at 85.

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tional life-or all life, for that matter."27 The facts of international life are
that there are many actions taking place outside of a state that result in
significant harm to or interference with individuals or institutions of that
state. These actions of outside interference, as I will call them, are often
actions of other states, but they may also be actions of external nonstate
groups or actions of individuals with aggregate effects. It is through the
growing frequency and efficacy of such actions that the independence of
states is in our time being severely compromised.28
The puzzle of external sovereignty is how sovereignty can continue to
be a reality given the prevalence of actions of outside interference. As in our
discussion of internal sovereignty, part of the solution lies in recognizing the
implications of sovereignty understood as a threshold concept. The idea of
external sovereignty as complete independence, typified by the above United
Nations' language, is part of the interpretation of absolute sovereignty as
unlimited power. If this were the only interpretation of the traditional notion
of absolute external sovereignty, one would be driven here as well to adopt
a notion of partial sovereignty. But the all-or-nothing character of external
sovereignty is tied to the status of sovereignty as a threshold concept, not to
its representing complete independence. External sovereignty can hold even
though the state's independence is less than complete. Austin acknowledges
this when he claims that a "feeble state," despite its occasional obedience of
the commands of outsiders, is nonetheless "sovereign or independent." 29
At what point on the scale from complete dependence to complete indepen-
dence is the threshold for applying the concept of sovereignty? As we think
it distinctive of a state that it hold a substantial preponderance of power over
domestic rivals, we think distinctive of a state that it have substantial
independence from outside forces. So, a state is externally sovereign when
it is substantially independent.
But the puzzle still remains, for actions of outside interference seem to
undermine state's independence to such an extent that it is no longer
substantial. The remainder of the solution lies in making distinctions among
types of independence, parallel to the distinctions among types of domestic
power, and understanding that external sovereignty is a function of a specific
type of independence. So, a state may be externally sovereign if its
independence, in one sense, is substantial, even though its independence, in
another sense, is less than substantial. To legal power, there corresponds
legal independence, and to coercive power, there corresponds military

27. Id. The dilemma to which Levi refers is presumably something like the puzzle of
external sovereignty. Levi goes on to assert that "the concept of intervention has lost legal
usefulness in most instances," presumably because, in the contemporary world, almost any
action a state can take can have effects on other states, so that intervention cannot be clearly
distinguished from nonintervention. Id. at 86.
28. It is not only through actions of outside interference that independence can be
compromised. This can occur also through intervention on the state's territory by military forces
or clandestine agents.
29. AuSTIN, supra note 5, at 197.

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independence. The ability of a state to retain its legal independence is

closely tied to its ability to retain its military independence, as legal power
in the state is strongly tied to domestic coercive power. Thus, one may say
that a state is externally sovereign when it has substantial legal and military
independence, even if it lacks substantial independence in other respects. So,
the puzzle will have been solved, if it can be shown that, despite the actions
of outside interference, such as those leading to the economic and environ-
mental effects cited earlier, states, in general, still retain substantial legal and
military independence.
Consider military independence. It may seem at first glance that no
nation enjoys substantial military independence. With the advent of nuclear
weapons, and the capacity for assured destruction they create, no nation is
now able, by its own military resources, adequately to protect itself against
an attack by a foe armed with such weapons. Indeed, it has been argued that
nuclear weapons is one of the major factors undermining sovereignty in our
time. But even in the pre-nuclear age, it was often true that not even the
strongest nation could adequately protect itself militarily if a number of other
nations combined to attack it. Military independence does not, however,
require the ability to thwart all potential military attacks. As Austin notes:
"If power to maintain its independence by its own intrinsic strength be a
character . . . of an independent political society, the name will scarcely
apply to any existing society." Rather, all that is required for independence
is that the state "be not dependent in fact or practice." 3" If a state has
avoided undue military influence, including military conquest, even though
it lacks the capacity to avoid it were there to be a concerted effort on the part
of its military opponents, it is militarily independent. This pre-nuclear
wisdom seems to apply in the nuclear age as well. Though there is no
defense against nuclear weapons, dreams of ballistic missile defenses not to
the contrary, the doctrine of nuclear deterrence based on the mutual capacity
for assured destruction appears to have served well in allowing the superpow-
ers during the Cold War to maintain substantial military independence.',
What about legal independence? It is true that the legal behavior of
states is frequently influenced by actions of outside interference. For
example, state A may seek to get state B to open its markets by bringing
economic pressure to bear, and such pressure may succeed in getting B to
lower its tariffs. But it would be a mistake to argue that this shows that B
lacks substantial legal independence. A's influence in such a case, to use a
domestic analogy, is like the influence of business interests on governmental

30. Id. at 213.

31. Caution is necessary in regard to this claim. The fact that a war between the
superpowers was avoided may not show that nuclear deterrence has been an effective policy,
though many assume this to be the case. The absence of war may have been due to other factors
in the geo-political balance, with nuclear weapons playing a neutral or even a negative role.
Nuclear weapons may be the threat to military sovereignty that many in the 1940s thought they
would be.

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decisions, an influence which does not, as we have seen, destroy internal

sovereignty, because it is an exercise of civil power rather than of legal
power. Roughly corresponding to civil power on the domestic level is what
I will call interest independence on the international level. States have
interest independence if they are able to protect their domestic interests from
outside (nonmilitary) interference. The prevalence of actions of outside
interference shows that states lack substantial interest independence. But
interest independence is distinct from legal independence. Lack of interest
independence does not entail lack of legal independence, hence does not
entail the absence of external sovereignty, which is tied to legal and military
independence. Economic interdependence and global environmental
degradation undermine the interest independence of all states, but states'
responses to these factors are, in general, exercises of, hence a demonstration
of, legal sovereignty.
But what if the outside pressure is severe? States that are economically
weak often suffer grievously from outside economic forces. When the
interest independence of a state is severely compromised, can its legal
sovereignty remain intact? Pogge says not, referring to the legal sovereignty
of third-world states as "fictional." 32 Levi makes the same point:

In the face of enormous political and economic inequalities among states,

sovereign or formal legal independence is a sham because the economic
dependence of the newer states on developed states in fact cancels their
right to exercise their judgment freely to decide on matters involving the
government of their territories.33

Indeed, if outside economic pressure is too great, legal independence can be

lost, because a state's legal actions may then effectively be coerced.34 As
individual autonomy can be lost if outside pressure is too great (like in the
gunman's "your money or your life"), legal independence can be lost if
actions of outside interference are overwhelming. But external legal
sovereignty, like individual autonomy, survives so long as outside pressures
are not sufficient to constitute coercion. The point at which the legal actions
of states become effectively coerced by outside forces is difficult to
determine, but this is no reason to hold that any level of outside interference
negates legal sovereignty. The fact that outside nonmilitary interference can
negate legal sovereignty shows that there is some link between legal and
interest independence, but this link is much weaker than the link between
legal and military independence. While substantial legal independence cannot
long survive loss of substantial military independence, it will survive all but

32. Pogge, supra note 8, at 66.

33. LEVI, supra note 25, at 82.
34. This implies is that the first-world's commitment to the abstract principle of the equality
of legal sovereignty should lead it to a commitment to strengthen the economic conditions of
poor states to the extent that outside economic influence would no longer be coercive. Levi
points out that this is an argument that many underdeveloped states have made. Id. at 83.

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the most extreme loss of interest independence, the reason being that, in
general, coercion is achieved much more easily by military than by
nonmilitary means. Thus, the prevalence of actions of outside interference
does not entail, at this point in time, that states have, in general, lost their
legal sovereignty, even though this may have happened for some poorer
states.
But there is another challenge to the claim that states possess external
legal sovereignty. It arises from the way in which states have responded to
actions of outside interference. In an effort to negate the effect of such
actions and to stanch the loss of interest independence that they involve,
states have with increasing frequency been entering into mutual agreements
to mitigate or control these outside pressures. These mutual agreements have
become the substance of international law. Thus, the contemporary growth
in international law is coincident with increasing economic interdependence,
growing environmental impacts, and other factors that have robbed states of
their interest independence. It is, in part, a solution to a coordination
problem. A state, by agreeing to provisions of international law, chooses to
create constraints on its own behavior in order to get other states to constrain
their behavior, thereby achieving some control over the actions of outside
interference to which it is subject, on the calculation that the chosen
constraints are less onerous than the unrestrained actions of outside
interference. But these constraints are legal constraints, and thus seem to
undermine the state's legal independence. The existence of international law
seems to entail the loss of the state's legal sovereignty.
If, however, international law is understood in this way, as based on
treaties or conventions, as "agreement law," its existence is compatible with
the existence of state legal sovereignty. This idea of international law is
expressed by Louis Henkin in this way:

By their ability to consent, to have relations and conclude agreements,

states have in effect created the international political system, by a kind of
"social contract." By their ability to consent to external authority and to
conclude agreements, they have created norms and3 institutions
5 to govern
these relations, the international law of the system.

In contrast, in the case of domestic law, those bound are bound independent
of their actual agreement. The social contract theory of domestic law must
resort to hypothetical consent, but the social contract theory of international
law may appeal to actual consent. In view of this difference, international
law is not a denial of a state's legal sovereignty. As based on agreement,

35. HENKIN, supra note 4, at 16 (quoting Louis Henkin from InternationalLaw: Politics,
Values and Functions).

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international law is an exercise of that sovereignty.36 When states make

agreements, the resulting international laws are "expressions of, rather than
infringements on, their sovereignty." 37 The agreements are treated not as
"formal abridgments" of their sovereignty, "but as voluntary restraints on
their exercise of that sovereignty." 38 Indeed, Levi notes, "international
courts have consistently held that the conclusion of treaties is the exercise of
an attribute of sovereignty, not a limitation of it." 39 The ruling group of
a state can by treaty-making bind itself and its successor regimes, but the
state's being under such obligations does not infringe its legal sovereignty,
because the obligations are a direct product of its legal power.
One way to test this conclusion, drawn from the idea that international
law is agreement law, would be to compare international law with the law of
a group of states whose relations are also based on agreement, namely, the
European Community (EC). The force of the comparison is based on the
assumption that "no other international organization enjoys such reliably
effective supremacy of its law over the laws of member governments" than
does the EC, 4 and the resulting implication that if there is a strong case
that state legal sovereignty has not been lost in the EC, all the more so would
this hold in regard to states under international law. 4 The main question
is whether the EC is an international or a supranational organization.42 If
it is a supranational organization, member-state sovereignty would be lost,
but not if it is merely an international organization. There are, indeed, some
organs of the EC, such as the Commission and the European Parliament, that
are independent of direct state control, and thus seem to constitute the EC as
a supranational organization. Real power, however, lies not with these, but
with the Council of Ministers, composed of direct representatives of the
member states, and the European Council, composed of the members' heads
of government, both of which conduct their business, especially regarding
important matters, under a rule of unanimity. This indicates that the EC is
an international organization in which the members have an effective veto
over policy and thus retain their legal sovereignty.
Commentators describe the EC as involving "the pooling and sharing of

36. Among international agreements, a distinction is drawn between "law-making treaties,"

which form the substance of international law, and "contract treaties." Law-making treaties,
as opposed to contract treaties, involve a large number of signatories, apply to all of them
equally, and are in effect for an extended period of time. See MICHAEL AKEHURST, A MODERN
INTRODUCTION TO INTERNATIONAL LAW 24 (4' ed. 1982).
37. MACCALLUM, supra note 15, at 137.
38. Stephen Toulmin, Limits of Allegiance in a Nuclear Age, in NUCLEAR WEAPONS AND
THE FUTURE OF HUMANITY 364 (Avner Cohen and Steven Lee eds. 1986).
39. LEVI, supra note 25, at 82.
40. Robert Keohane and Stanley Hoffman, Institutional Change in Europe in the 1980s, in
THE NEW EUROPEAN COMMUNITY ll(Keohane and Hoffman eds. 1991).
41. For my discussion of the EC, I draw upon the essays in two collections: THE NEW
EUROPEAN COMMUNITY, supra note 40; and EURO-POLITICS (Alberta Sbragia ed. 1992).
42. See, e.g., David Cameron, The 1992 Initiative: Causes and Consequences, in EURO-
POLITICS, supra note 40, at 28.

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sovereignty rather than the transfer of sovereignty to a higher level." 43 The

notion of pooling, as opposed to transfer, captures the sense in which EC law
is constituted by member-state agreements." The central role of the
Council of Ministers and the European Council makes clear that EC law, at
least in its major provisions, is agreement law, and that the legal sovereignty
of its members is preserved. There is no guarantee that the EC will continue
to have such a structure. If, for example, the European Parliament were to
assume the power currently held by the Council of Ministers and the
European Council, or if the latter organizations were to adopt a majority
rather than a unanimity rule for major decisions (a direction in which the EC
may be moving), then the EC would become a supranational organization and
the legal sovereignty of its members would be lost. Such a development
might occur in the case of international law as well. But for now, it is
agreements rather than legislation that are the source of international law.
As Hinsley notes:

States are not only not moving toward the centralization of the functions
involved in applying international law, which would be incompatible with
their sovereignty, but are advancing, however slowly, in a different
direction-one in which whey are exercising their sovereignty to bring
about an agreed re-definition of their rights and duties within the interna-
tional system.45

So, at present, EC law, and all the more so international law, is not
inconsistent with state sovereignty.
There are two objections that could be offered to this conclusion, one
logical and one empirical.' The logical objection is represented by the
question: How is it that states by their agreement are able to bind them-
selves? What is the source of the resulting legal obligation? How can
agreement create law in the absence of an existing legal structure?
Skepticism on this point is expressed by J. L. Brierly: "For consent cannot
of itself create an obligation; it can do so only within a system of law which
declares that consent duly given, as in a treaty or a contract, shall be binding
on the party consenting." 4 7 States are not bound by what they agree to in
the absence of a background norm of promise-keeping. Without such a
norm, a state's agreement to a treaty would be, at most, a statement of
intention, creating no obligation. This promise-keeping norm, formulated as
pacta sunt servanda, must itself be an aspect of international law not based

43. Keohane and Hoffman, supra note 40, at 13.

44. This notion of pooling sovereignty, rather than that of transferring sovereignty, also
characterizes the state of affairs in regard to military sovereignty. When states form military
alliances to better protect themselves, they are, in general, preserving rather than sacrificing
their military sovereignty.
45. HINSLEY, supra note 3, at 229.
46. See, e.g., HERBERT L.A. HART, THE CONCEPT OF LAW 219-21 (1961).
47. JAMEs L. BRIERLY, THE LAW OF NATIONS 53 (6h ed. 1963).

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on agreement. 4 The response to this objection is that this promise-keeping

norm is what Hart refers to as a power-conferring rule, rather than a duty-
imposing rule. 49 The norm does not impose a duty on states. Instead, it
provides states with the legal power to make agreements, to create obliga-
tions in themselves and other states in pursuit of their interests. The pre-
existence of this legal norm necessary for agreements to generate obligations,
because it does not itself impose duties on states, does not infringe on their
legal independence. Thus, legal independence is not diminished by such a
rule, and legal sovereignty remains.
The empirical objection is that the paradigm of an agreement among
states is not the only way in which states come under obligations of
international law. There is, in fact, a strong point of disanalogy between
international law and the law of the European Community: A member-state
of the EC can leave that organization, but a state cannot leave the world.5"
Simply by being in the world, a state is subject to legal obligations
independent of the agreements it has made. Agreement law is not the only
basis for international law. In addition to treaties, the sources of internation-
al law include custom and judicial decisions." Each of these sources can
create legal obligations for states independent of that to which they have
agreed. International customary law, like domestic common law, makes
obligatory certain settled patterns of behavior and expectations. One of the
ways in which customary law goes beyond agreement law, for example, is
that states which have not ratified an agreement may become obligated by it,2
if so many states have ratified it that its terms become customary.
Defenders of the traditional notion of external sovereignty, wishing to show
that all international law is based on agreement, have argued that states have
given their tacit consent to customary rules. But the notion of tacit consent
is no more adequate here than is the analogous notion of tacit command used
by Austin to attempt to explain the common law in terms of his notion of
sovereignty. 3
It is, however, an important fact that both custom and judicial decision
play a less important role than agreement in the constitution of international
law. The International Court of Justice plays a modest role in the develop-
ment of international law because it hears only those disputes submitted to
it by states and because it has tended to behave in a cautious manner. 4 In

48. HENKIN, supra note 4, at 20-21 (excerpting HANS KELSEN'S PURE THEORY OF LAW).
49. HART, supra note 46, at 27-41.
50. I owe this point and my recognition of the need for the following discussion to an
anonymous reviewer.
51. WOLFGANG FRIEDMANN, THE CHANGING STRUCTURE OF INTERNATIONAL LAW 120
(1964).
52. LEVI, supra note 25, at 20.
53. BRIERLY, supra note 47, at 51-52. On the criticism of Austin's notion of tacit
command, see HART, supra note 46, at 44-48.
54. FRIEDMANN, supra note 51, at 141-42; LEVI, supra note 25, at 12.

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addition, the court is formally instructed not to operate under the doctrine of
precedent or stare decisis, thus limiting the legal effect of its decisions. 5
Given the explosive growth of international intercourse, treaty law, "as the
nearest substitute to international legislation," has superseded customary law
as the primary source of international law. 56 Indeed, large portions of
customary law have been directly superseded by being codified under
treaty.57 The lesser importance of customary law and judicial decisions
places them in the same category as domestic factors such as federalism and
the common law in regard to the challenge they pose to claims about the
existence of sovereignty. As the latter factors show that the domestic legal
supremacy of the state is not unlimited, the former show that international
legal independence of the state is not unlimited. But in neither case do the
factors show that sovereignty is absent, and the reason is the same. Because
"sovereignty" is a threshold concept, unlimited supremacy or independence
is not necessary for it to apply. What is necessary is that the legal suprema-
cy or the legal independence of the state be substantial. The minor role
played by factors other than agreement in the constitution of international law
shows that, despite these factors, state legal independence is substantial, and
external legal sovereignty holds. The relationship between a state and the
international order is precisely the reverse of the relationship between a
political unit and the federal state of which it is a part. The federal state is
legally sovereign because its legal power is preponderant, despite the legal
obligations imposed on it by the inferior legal power of its parts, while the
parts of the international order, the states, are sovereign because they enjoy
substantial legal independence, despite the legal obligations imposed on them
by their membership in the international order.
The puzzle of external sovereignty is how states can be seen to have
retained their sovereignty in the face of economic, environmental, and other
outside pressures which appear to have robbed them of that sovereignty. The
solution is that sovereignty can be identified with legal independence, which
has largely been retained, despite the growth in international law, even as
other forms of independence have declined. A state can retain substantial
legal independence, sufficient for the attribution of sovereignty, as other
forms of independence decline, so long as the decline does not result in the
state's legal actions being coerced. Such coercion would occur should
military independence become less than substantial, as in the case of satellite
states of superpowers, but it would not occur in regard to interest indepen-
dence unless the loss of that independence becomes severe. Outside
economic, environmental, and other pressures have led to a serious loss of
interest independence, but this loss has not to this point in time been
sufficient to result in states' legal actions being coerced, except perhaps in

55. LEVI, supra note 25, at 50.

56. FRIEDMANN, supra note 51, at 123-24.
57. LEVI, supra note 25, at 38.

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the case of some poor states. The other way in which states can lose
external legal sovereignty is if they were to lose substantial legal indepen-
dence as a result of the displacement of agreement law as the main source of
international law, as through the creation of an effective majoritarian
international legislative organ. In the future, this may happen to the
European Community and it may happen to the world. States may act so as
to bring about, deliberately or unintentionally, an effective supranational
organization, thereby alienating their own legal sovereignty. International
law would then become world law. But this has yet to happen. There is no
necessity or inevitability about state sovereignty, but, as the world is now,
most states have it.
The solution to the puzzle of sovereignty shows that it is still meaningful
to speak of sovereignty in the traditional sense, as an absolute, as an all-or-
nothing matter, rather than as a matter of degree. Many have been led by
the prevalence of actions of outside interference to abandon the traditional
notion and to speak of partial sovereignty. But the solution to the puzzle,
involving understanding sovereignty both as peculiar to legal power and
independence and as a threshold concept, shows that the switch to talk of
partial sovereignty is not forced by the facts. Of course, there may be other
reasons to hold that it is desirable or even necessary to abandon the
traditional notion of sovereignty and to adopt a notion of partial sovereignty.
This would presumably involve identifying sovereignty with, rather than
treating it as a threshold function of, state power and independence, so that
when power and independence are partially present, sovereignty would be as
well. But I wish to conclude with an argument to show how understanding
sovereignty in the way I have proposed will help us better to understand how
states have and will respond to our global crisis.

III.

Our global situation is one in which states are losing power at an

accelerating rate to forces outside of their borders. This has implications for
state sovereignty, as we have seen, and I would like now to show that my
view of these implications provides a better explanation of how the global
situation is developing. The traditional view is that sovereignty is absolute,
in the sense that it requires unlimited power, while the contemporary view,
recognizing that power is nowhere unlimited, is rather that sovereignty can
be partial. Consider now a dilemma that arises if we regard these two views
as the only options:

(1) If we accept the view that sovereignty requires unlimited power, hence
complete independence, then once it is recognized that the state does not
now enjoy complete independence, it is no longer regarded as sovereign,
and thus may not be seen as retaining the control necessary effectively to
stanch the further loss of its independence or to determine the form that
loss takes.
(2) If we accept the view that sovereignty can be partial, then states are

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262 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 27

regarded as sovereign despite their lack of complete independence. But the

result may be the same, for then sovereignty, representing only limited
independence, may not be seen as providing the degree of control
necessary for the state to stem a further drain of independence or to
determine the form it takes.

Both views of sovereignty yield the same unfortunate consequence.

The problem is that both views see "sovereignty" as a univocal term, in
the sense that they understand it as representing the holding of a generic form
of power. If the term is seen as univocal, the continuing erosion in the
independence of states would be viewed as occurring in the single dimension
of that generic form of power. The implication of such a one-dimensional
model, as the dilemma indicates, is that states, having lost some indepen-
dence, may not be in a position to exercise effective control over the erosion
of their remaining independence. As states become more feeble, they lose
the ability to avoid further enfeeblement. On the one-dimensional model,
state independence erodes as state power leaks to a variety of external power
centers, some governmental, some private. The erosion is unorganized
because no one has control over the process, and would lead on its own to
chaos rather than to order. Thus, the one-dimensional model has some
difficulty explaining how we are to avoid the facile pessimistic scenario
under which the world will face increasing levels of international chaos.
The view developed here that "sovereignty" is equivocal, in the sense
that it is defined in terms of specific types of power, avoids the dilemma
because it allows the erosion of state independence to be understood in terms
of a two-dimensional analysis. To see how this works, consider the
"enforcement mechanism" of international law. Instead of facing the formal
sanctions of a coercive sovereign, those in violation of international law face,
at most, reprisals on the part of other states seeking to "punish" the viola-
tor. 8 The reprisals are actions of outside interference taken in response to
the violation. Thus, in creating new international law through agreements,
states create new ways in which other states may seek to influence them
through actions of outside interference. States create the possibility of these
new actions of outside interference because their treaty-making gives rise to
expectations on the part of others that they will behave in obedience to the
law to which they have consented. If states thwart these expectations by
violating the law, this would give rise to (as well as justify) the new actions
of outside interference. The state chooses to create the possibility of these
new actions of outside interference in order to avoid other actions of outside
interference that it believes impose a more weighty burden on its indepen-
dence. For example, it accepts the constraints on its toxin-dumping behavior
resulting from its desire to avoid new actions of outside interference that
would occur should it continue its toxin-dumping (in violation of its
agreement not to do so) in order to avoid the actions of outside interference

58. BENN AND PETERS, supra note 16, at 433-34.

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1997] A PUZZLE OF SOVEREIGNTY

represented by other states' pre-agreement toxin-dumping activity. Through

the exercise of its legal independence, the state shifts the ways in which and
the extent to which its interest independence is interfered with. The reason
the state agrees to the shift is that the new constraints it chooses to impose
on its interest independence are less harmful than the unchosen limitations on
its interest independence that the agreement seeks to avoid. The reason that
the shift leads to a less harmful loss of independence is that the power that
is lost from the states, instead of seeping away to a variety of outside
sources, is reconstituted into a regime of international law, which promotes
the security of states.
Thus, the view of sovereignty presented here better explains the growth
of the international treaty regime. By making legal sovereignty a separate
dimension, a dimension in which the state's independence may remain
substantial and efficacious as independence in other areas declines, the model
makes clear how states retain the power to constitute that regime despite that
decline. It explains their ability to structure that decline in ways that enhance
their security. Speaking of international law, Levi remarks: "Many new
legal norms . . .decrease the content of sovereignty but not its influence
upon the integration of the innovations into the existing fundamental
system." 5 9 But the only way this decreasing content can be reconciled with
the continuing influence of which Levi speaks is on a two-dimensional
analysis. There has been a loss of power by states, but to describe this
simply as a'loss of sovereignty, or of the content of sovereignty, is to be
unable to explain how the result of this loss has been the growth of
international law, for this result can be explained only through the continuing
efficacy of sovereignty. World order is a matter of reconstituting the power
lost to states into an arrangement that enhances the security that states'
interest independence was traditionally able to provide for them. This
reconstituting activity is possible because substantial legal independence is
retained as other forms of independence are lost. Eroding state independence
will likely continue to be orchestrated by the states themselves, in virtue of
their retention of legal sovereignty, in such a way as to foster the growth of
world order through an expanding international treaty regime. 60 The model
that better explains the growth of international law to date entitles us to be
sanguine about the prospects for the future growth of world order.

59. LEVI, supra note 25, at 325.

60. I would argue neither that our only option for avoiding international chaos is the
eventual emergence of an international legal regime with power concentrated at the top nor that
such a top-heavy regime would be the most desirable of these options. In many ways more
appealing is a model where governmental authority would not be concentrated at any one level,
state or world, but would be dispersed among political units at many levels from local to global.
Such a model is proposed by Thomas Pogge in "Cosmopolitanism and Sovereignty," and is
sometimes advocated as a principle of organization for the European Community under the
notion of subsidiarity. But what I would argue is that the only way we can understand the
emergence of any order that manages to avoid international chaos is through states retaining legal
sovereignty for a length of time sufficient for them to choose to bring such an order into
existence. It will not come to be in any other way.

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