Re: National Sovereignty

Thanks, Pat.

I don't know if it's useful to carry on further discussion on this, other
than it being an academic exercise. But I'll give it one more detailed
shot anyway. I respond below.

//CJR

On Thu, 29 Apr 1999, Pat Gunning wrote:

> "Charles J. Reid" wrote:
> > 
> > On Wed, 28 Apr 1999, Pat Gunning wrote:
> > 
> > >
> > > I support some parts of international law; I object to others. This is
> > > one of the rights of a free people, namely, to appeal to a higher
> > > morality in order to evaluate a law.
> > 
> > -- I hope you are not suggesting that "higher morality" is Mr. Bill
> > Clinton. And I'm at a loss to understand what you mean by "higher
> > morality" on epistemological and ontological grounds. Methinks there might
> > be some solipsism here.
> > 
> > //CJR
> 
> Charles, this is what I wrote previously:
> 
> "Respect for national sovereignty is most heightened after a war, when
> the treaty-making parties must first reach agreement on sovereignty
> before they can agree on anything else. 

-- Let's regard this as a hypothesis that we can test empirically. The key
operational question is: what do you mean by "most heightened". We also
need to ask about time, regarded as historical context. I suspect we can
make a good case that there have been systemic changes over time, which
strains the hypothesis. Thirdly, we can also relate this hypothesis to
system hierarchy: "respect for national sovereignty" means one thing for
Great Powers, another thing for the allies of Great Powers and other key
players, and still another thing for everyone else. Finally, in the
evolution of international law predicated on the European regime, war has
been regarded as an extention of diplomacy -- diplomacy by other means --
and, if we can find a case where war emerges a manifestation of respect
for national sovereignty (two cases: a) where "respect for national
sovereignty" is used to incite war -- France-Prussian War, 1870, perhaps; 
b)  where "respect fo national sovereignty" is the ostentible purpose for
engaging in war -- the Gulf War, perhaps), the your hypothesis is refuted,
as a general rule. 

A case can be made that the diplomatic dances preceding the First World
War -- the messages, the ultimatums, the closing down of embassies -- were
all predicated on "respect for national sovereignty." It is difficult to
find a case with more "heightened" "respect for national sovereignty." 

Conclusion: a short examination of history will reduce your hypothesis to
nonsense. However, your hypothesis may have more meaning today, where
Corporate Feudalism makes international politics and law a sham. Doing a
little diplomatic dance after hostilities today and in the future to give
lip service to the traditions of "respect for national sovereignty" while
manipulating outcomes behind the scenes may, indeed, be a phenomenon worth
exploring, using your hypothesis as a point of departure. 


> However, the principles that are
> laid down under such conditions -- that is, under conditions of duress
> for the losers, exclusion of non-participants, repression in the various
> countries that are represented in the negotiations -- should not be
> regarded as having the force of moral authority."

-- If by this principle, you mean "respect for national sovereignty," then
this statement is also nonsense. (Note: I'm using 'nonsense' not as a
personally directed epithet, but as a characterization of the statement,
and I shall try to justify my characterization.) First, the Princes of
Europe at Westphalia recognized the mutual advantage of adopting the
concept of national sovereignty. Since the system was not unipolar like it
is today, "under conditions of duress for the losers" means something
different than it does today. You may have the Versailles Treaty in mind,
though the outcome of this placed in question "respect for national
sovereignty." Certainly, in the historical period between the Treay of
Westphalia and the U.S. Invasion of Panama to capture Manual Noriega,
"respect for national sovereignty" was rarely a principle qua principle
respected due to duress -- it was part of the regime of international
discourse.

Your statement above concludes with the words, "should not be regarded as
having the force of moral authority." This is a value statement, which
fact per se cannot validate. We know that outside the realm of
international law and politics, all kinds of "principles" having "moral
authority" are laid down "under conditions of duress." Outcomes of civil
wars may represent one clear case. "Conditions of duress" ended apartheid
in the United States. Is taxation another case?
 
I think we can probably make the contrary case: that regimes whereby
"respect for national sovereignty" is sacrificed under conditions of
duress as the result of negotiations may be more prominent in recent
years. Starting with the outcome of the Second World War. In fact, the
"unconditional surrender" policy of the Allies through WWII could
invalidate your statement in the context of one set of ethical
assumptions. 

> 
> "The moral principle upon which my post was based is twofold. First, I
> strongly disapprove of A's action in taking away B's traditional
> property and human rights. Second I strongly approve actions that
> protect the traditional property and human rights. 

-- Of course, this principle has been enforced, "under conditions of
duress for the losers, exclusion of non-participants, repression in the
various countries." The Pinochet Regime in Chile is a good example in
recent times. In this case, hands were hacked off poets, union organizers
disappeared, and supporters of Allende were shot, because, through the
legislature, he nationalized industries controlled by foreign interests,
Anaconda Copper being on such case. We can infer that you would approve of
the use of "duress" like that General Pinochet through the good offices of
the CIA used to "protect the traditional property" rights. The violation
of "human rights" was not an issue during the Allende period in Chile
(though "corporate rights" were), and certainly not to the extent that it
became an issue for the regime that followed. 



>This principle cannot
> always be unambiguously applied and the Kosovo conflict presents a
> challenge to one who aims to apply it. 

-- On this we are agreed.

[Snip ...]

> So I agree that the agression of NATO against Serbia violates the
> principle of respect for national sovereignty. But I do not regard
> respect for national sovereignty as a higher moral principle than the
> one stated above." 
> 

-- I assume you mean "actions that protect the traditional property and
human rights" as representing this "higher moral principle." Given what is
happening in Kosovo, the questions arises: if you abandon the existing
legal regime of international law founded on the principle of respect for
national sovereignty to pursue this "higher moral principle,"  what legal
regime are you applying in the vacuum? The legal regime of the jungle? 
What will be the cost and final outcome of abandoning the rule of national
sovereignty, and the codifications of existing treaties and charters, to
enforce this "higher moral principle"? One final question:  for how long
will you truely defend this "higher moral principle" -- just once, or
everywhere it is violated after Kosovo? And who will function as the
"enforcer" in the absence of the lesser principles that "should not be
regarded as having the force of moral authority" you have abandoned?

//CJR