Sovereignty and Duty
Senator Alan Cranston gifted us with The Sovereignty Revolution because of his profound love.
I recall Alan once pondering that this planet might be the only place in the universe where the capacity to love exists. Couple that insight with a life lived in the crucible of political service and historical conflict and it is natural that his gift would be filled with wisdom. Although one might emphasize different particular countries and conflicts today, patterns that he identified and the core issues he challenged us to address have become even more pressing than when he wrote.
This is a book for today because he wrote it for today.
In an effort to stimulate a much richer public dialogue Senator Cranston painted broad brushstrokes in his discussion of sovereignty in order to illustrate his main point:
The prospects for humanity would be considerably brighter if, looking to the lessons of history for guidance, we were to set out consciously and deliberately to build a world community based upon democratic principles, upon the rights and responsibilities of its citizens, and upon the exercise of their individual sovereignty under the rule of law.
Cranston’s themes ranged from the individual as the central basis of sovereignty and the authority of the state to UN reform. In light of his insights, I would like to reflect herein on some of the duties of nation states to their own citizens and to the community of nations, peoples, and the living systems of the Earth. Such concerns were not paramount in 1648 when European states established the nation state system through the Peace of Westphalia and thereby halted the Thirty Years War, quelling violence driven by religious fanaticism. Nor were they the primary concerns in 1945 when the UN system was established to ensure an end to wars of expansion and conquest.
The duty to protect the physical integrity of the state has always been a foundation of the legitimacy of state sovereignty. Senator Cranston places the individual at the center of granting authority to the state because he views the individual as the foundation of sovereignty. I would propose that the duty to protect individuals—citizens—is a basic duty of the state, and that the implications of this focus on human security include the duty to help citizens in other states in crisis and to ensure the viability of the global commons, the ecological systems upon which all lives depend.
The United Nations system ensures the legal identity and the equality of states by enshrining such status in Article 2.1 of the UN Charter, thus emphasizing stability, identity, and predictability, but setting very few standards of responsibility as part of that status. The sovereign state has the capacity to make authoritative decisions with respect to people and resources in its territory and can expect non-intervention from other states, with only several explicit exceptions. Those exceptions relate to the use of force in self-defense or when a state’s conduct so offends international peace and security that the Security Council must intervene. Such offense is defined as “a threat to the peace, a breach of the peace or act of aggression.”
The United Nations system builds upon three core elements of state sovereignty that were codified in 1933 in Uruguay at the Montevideo Convention on Rights and Duties of States. These included: a defined territory, a permanent population, and a functioning government.
In order to gain recognition in the UN system, virtually every state in the world has pledged to utilize international cooperation to solve problems of an economic, social, cultural, or humanitarian character and to promote and encourage respect for human rights and fundamental freedoms for all, without distinction of race, sex, language, or religion. This gives us norms of universal commitment that define the legitimate aspirations of states, but it gives us very little to explicitly define what happens when standards are not met.
The current barometer for measuring the success of states is increasingly being recognized exactly where Senator Cranston placed it—on individual human lives. Secretary General Kofi Annan’s statement in the Economist of September 18, 1999, resonates with Senator Cranston’s beliefs. Annan stated:
State sovereignty, in its most basic sense, is being redefined—not least by the forces of globalization and international co-operation. States are now widely understood to be instruments at the service of their peoples, and not vice versa. At the same time individual sovereignty—by which I mean the fundamental freedom of each individual, enshrined in the Charter of the UN and subsequent international treaties—has been enhanced by a renewed and spreading consciousness of individual rights. When we read the Charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.
This concept of the duty of the state to protect individuals is a long way from gaining the status of the responsibility to protect the physical integrity of the state. The United States, one of the world’s most democratic countries, where liberty and freedom are high social values, is but one example of the extraordinary powers that are invested in the state in order to exercise its capacity to declare war and offer physical protection. For example, in the interest of national security, the US Congress has authority to:
[C]ontrol the price of every commodity bought and sold within national boundaries; to fix the amount of rent to be charged for every room, home or building and this even though to an individual landlord there may be less than a fair return; to construct extensive systems of public works; to operate railroads; to prohibit the sale of liquor; to restrict freedom of speech in a manner that would be unwarranted in time of peace; to ration and allocate the distribution of every commodity important to the war effort; to restrict personal freedom of American citizens by curfew orders and the designation of areas of exclusion; and, finally, to demand of every citizen that he serves in the armed forces of the nation. (Spaulding v. Douglas Aircraft Co., 154 F.2nd 419, 422-423 (9th Cir.1946))
But the capacity of the state to exercise these and other powers can be forfeited if it does not fulfill a more basic and fundamental duty, a duty that supersedes sovereignty and goes to our common humanity. Before the General Assembly of the UN in 1999, and again in 2000, Secretary General Annan stated forcefully the essential dilemma:
…if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human rights that affect every precept of our common humanity?
It is now internationally recognized that a state must protect is own people. It must not permit avoidable catastrophes such a mass murder, rape, or starvation. If it is unable or unwilling to do so then others have a right and responsibility to intervene, even with force if necessary. George Soros in his article, “The People’s Sovereignty,” in the January/February 2004 issue of Foreign Policy, sets forth a position deeply resonant with Senator Cranston’s:
But true sovereignty belongs to the people, who in turn delegate it to their governments. If governments abuse the authority entrusted to them and citizens have no opportunity to correct such abuses, outside interference is justified. By specifying that sovereignty is based on the people, the international community can penetrate nation-states’ borders to protect the rights of citizens. In particular, the principle of the people’s sovereignty can help solve two modern challenges: the obstacles to delivering aid effectively to sovereign states, and the obstacles to global collective action dealing with states experiencing internal conflict.
Such duties of humanitarian intervention were thoroughly addressed in a remarkable Commission of the Government of Canada—the International Commission on Intervention and State Sovereignty—that issued a report titled “Responsibility to Protect.” As Secretary-General Annan stated upon the release of the report on February 15, 2002, it offers “a constructive shift away from debates about the ‘right to intervene’ towards the assertion of a ‘responsibility to protect.’” The report thoroughly addresses questions such as: Do people suffering under intolerable conditions, which can be ameliorated through intervention, have a right to expect assistance? Should the sovereignty of the state in which they are living preclude other states from coming to offer help? Is there a duty to help? When does such a responsibility arise, and by and through what institutional structures can it be exercised? The report emphasized the same needs as Senator Cranston highlighted and for much the same reasons. Sovereignty should not be used as an absolute barrier to saving lives threatened by war and violence. As the Secretary-General said,
What is clear is that when the sovereignty of States and the sovereignty of individuals come into conflict, we as an international community need to think hard about how far we will go to defend the former over the later. Human rights and the evolving nature of humanitarian law will mean little if a principle guarded by States is always allowed to trump the protection of citizens within them.
A body of law is emerging to fortify the expectation of intervention of people suffering under illegitimate authority. It is based on the Human Rights provisions of the UN Charter, the Universal Declaration of Human Rights itself, the Genocide Convention, the Geneva Convention and its additional protocols on international humanitarian law, as well as the Statute of the International Criminal Court. The report of the International Commission on Intervention and State Sovereignty concluded that, based on the current status of international law, when a situation shocks the conscience because of large scale loss of life—even without genocidal intent—or large scale ethnic cleansing, killing, expulsion or rape, and a state cannot prevent such disaster, then that state is simply not fulfilling one of its core sovereign functions. In such an instance multilateral coalitions, legally authorized through the UN system, can intervene to protect the citizens.
Providing for the health and security of citizens is the most basic duty of the state. If a state’s conduct so fails these tests that its citizens cannot expect to survive, then common sense dictates that there is a serious problem that cannot be ignored. I suggest that the same analysis that places a duty on a state to protect its citizens from horrific violence also places a duty on the State to address quiet assaults on life caused by environmental factors. The fact that to address environmental factors requires multilateral cooperation does not detract from the sovereignty of each state but provides the only avenue available for each state to exercise its core function to protect its citizens. Thus, the core duty of the sovereign state to protect is not diminished but in fact fulfilled by strengthening multilateral institutions like the UN.
At a forum the Global Security Institute helped organize in the US Congress in October of 2003, UN Messenger of Peace Michael Douglas enumerated several issues that require all states to work together. He stated that universal cooperation is needed for ensuring bio-diversity and ending the destruction of thousands of species; reversing the depletion of fishing stocks; controlling ocean dumping; preventing ozone depletion; halting global warming; controlling and eliminating terrorism and weapons of mass destruction; fighting pandemic diseases; ending the tragedy of crushing poverty and lack of clean drinking water; and addressing crises arising from failed states. No nation or even a small group of nations can succeed in addressing these issues alone.
In fact, in order to protect citizens of any state, all states must cooperate in addressing these issues.
The World Wildlife Fund stated in a 1993 report that “[h]umankind is only beginning to comprehend that its actions significantly affect biodiversity and that protection of biodiversity is a human responsibility. Left unchecked, human activities could eventually destroy the very habitat on which humankind depends.”
But our very system of international production and commerce, if left unchecked and unregulated by governments, places our ecology at risk. It encourages corporate entities to place demands on ecological systems to gain market advantages, but passes the cost of injury to be shared by the whole.
This challenge of this process can be understood through the hypothetical model of the Tragedy of the Commons. In the example, cooperation and communication among the key actors is lacking. Shepherds bring their flock to a common grazing land. As long as no shepherd allows a flock to overgraze, the commons remain healthy. If one shepherd permits overgrazing then others will follow to similarly improve their economic situation. Since it would be irrational for an economic actor not to seek to maximize their economic advantage, reasonable behavior would encourage as much grazing as possible. Improving economic positioning is the most reasonable behavior for each individual actor. Ultimately, in the example, overgrazing renders the commons unable to regenerate rapidly enough to sustain the sheep, and thus all shepherds suffer. The tragedy in the story is not the callous nature of nature, but the incapacity of the decision makers to adequately address their collective interests and limit their individual conduct accordingly. Each was reasonable as a separate actor; collectively their conduct was unsustainable.
Excessive economic freedom to the detriment of environmental concerns is often protected by states saying that they do not want to enter into effective international environmental regimes because it will diminish their sovereignty. Thus, the practice of unregulated free market competition, without reference to ecological issues that demand responsible behavior, is injuring all citizens of all states by placing at risk the very foundations of a sustainable ecology.
The rules of the market cannot outwit the rules of biological regeneration. Marketplace freedom need not mean anarchy; we recognize numerous international legal regimes to regulate commerce. We must quickly respond to the ever-growing empirical evidence that the ecological systems of this precious finite planet are at risk. Incorporating responsible stewardship of the oceans, the ozone and other aspects of the global commons does not mean diminishing sovereignty. In fact, it is the very fulfillment of the duty to protect inherent in the states basic authority.
The fact that living systems and individual lives are interdependent cannot be ignored by states, which base their authority on their relative independence. This imperative of multilateralism is entirely new. Never before has the human community had the capacity to so injure the global commons and thus never before have we had to work so together, as Senator Cranston emphasizes, in order to survive.
If one nation does not join in a system to protect the oceans from dumping pollutants others will use that nation’s flag to dump. If one nation’s fishing industry does not recognize the common interests of all to protect fish stocks, the very health of the oceanic system suffers. All must join together.
By focusing on one species in particular, the critical nature of the situation is highlighted. Horseshoe crabs, for example, are a wonder. They have been coming ashore and laying eggs the first full moon in June for about 400 million years, long before humans even gave June its name. They leave enough extra eggs for millions of birds to gorge themselves on their bounty, and thus ensure the viability of several species. Horseshoe crabs are one of only four in a class of creatures that are living relatives of ancient arachnids. Spiders and scorpions are in the same family.
But, as Sylvia Earle of the UN Environmental Program recently brought to public attention, horseshoe crabs are at risk. Lose one kind of horseshoe crab and a quarter of a genetic heritage is gone. Imagine if we lost quarter of the insects, or flowering plants, or vertebrae. That is the magnitude of our negligence. Don’t you suppose we might learn something, or at least respect a species, that has survived ice ages, major climactic changes, and upon which so many other beautiful creatures depend? Through over-fishing practices, this wonderful creature is placed at risk, as are so many others. Through such irresponsible practices, we place the ocean’s health at risk. We are thus playing fast and loose with 97 percent of the planet’s water and the ultimate source of much of the planet’s life support system.
With techniques only decades old, gleaned from military sciences, we are able to find fish nearly anywhere and, much like the example of the Tragedy of the Commons, actors maximize their market advantage to the ultimate detriment of the whole. With respect to the oceanic system, we don’t know the consequences of warming it, polluting it, destroying entire species integrated with other species that live in it. We don’t know the consequences of withdrawing hundred of millions of tons of wild game, whether it be squid, tuna, creel, or clams. What might be a short-term gain for a few might spell disaster for us all. This serious risk should compel states to higher levels of cooperation in order to protect their own citizens
Many areas of the global commons require strengthened legal regimes. For example, the Vienna Convention and Montreal Protocol on protecting the ozone layer, the Convention on Long-Range Transboundary Air Pollution and its protocols, as well as numerous other legal instruments to protect citizens everywhere, are inadequately supported. Fishing stocks are not protected adequately. A better framing of the issue is to see that working together on ecological sustainability is as an expression of the duty of the state to protect its citizens. Failure in this area—ecocide—could be as serious as genocide in one state.
Another issue that affects the global commons relates to nuclear weapons. Their use cannot be contained in either space—because radiation travels—or time, since the weapons actually impact the human gene pool. Our collective security as a species is uniquely placed at risk by nuclear weapons. There is an imperative for cooperative security. Senator Cranston devoted most of his life to this issue.
He knew clearly that the greatest stimulant to the proliferation of nuclear and other weapons of mass destruction is the recalcitrance of the nuclear weapons states—particularly the United States—to negotiate their universal elimination. Although 182 states have renounced them, a handful continues to claim a unique right to possess and threaten to use them. This misplaced exercise of sovereignty and myopic pursuit of security continues to place all civilization in jeopardy. Thus tens of thousands of nuclear weapons remain with us.
The International Court of Justice unanimously called for a treaty to eliminate nuclear weapons, and in November 2003, at the 4th World Summit of Nobel Peace Laureates, a Statement was issued that stated:
For some to say that nuclear weapons are good for them but not for others is simply not sustainable. The failure of the nuclear weapons states to abide by their legal pledge to negotiate the elimination of nuclear weapons, contained in the Nuclear Nonproliferation Treaty, is the greatest stimulus to their proliferation. Nuclear weapons are immoral and we call for their universal legal prohibition. They must be eliminated before they eliminate humanity.
By accident or design they will be used, and any use would be catastrophic. Senator Cranston often reminded us that pursuing security through the threat to annihilate millions of innocent people is unworthy of civilization.
Like environmental issues relating to the commons, if one nation does not adhere to the norm, the system breaks down. Thus, this collective threat is our opportunity to emphasize our common interest and our common concerns. By building relationships that reinforce cooperation in this area it makes it all the more easy to build in other areas.
Business works extremely well by forging trust and cooperation and striving for efficiency. But business is not in the business of ensuring a sustainable future for all citizens. Business will not protect the environment and its model of unbridled competition is not appropriate for states charged with protecting the global commons. States alone have the capacity to fulfill that duty. States alone have the capacity to eliminate nuclear weapons.
These duties to protect require a revolution in the way we address sovereignty. Since it is based on individual responsibility, we as individuals have a responsibility to affirm the interdependence of life and to pressure the states in which we live to fulfill their common duties. Whether violence is the loud blast of a gun, the mushroom cloud or the quiet destruction of the ecosystem, we are all responsible in different degrees and we can all make a difference.
Senator Alan Cranston calls us to this work because we also have a duty to live fully on possibly the only place in creation where love can thrive.