Sovereignty, Lost and Found
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In this brief essay, I want to challenge two very common, and interrelated, stories about ‘globalisation’ and sovereignty. The first is that globalisation entails the ceding of sovereignty understood as the actual capacity of public authorities to control or determine behavior and outcomes on their territory to global markets or market actors. This story is as common to those who embrace globalisation as to those who fear it. The second story associates globalization—including both the globalisation of markets and the globalization of values and opinion (human rights)—with the transfer or allocation of sovereignty or sovereign powers to international institutions or governance mechanisms. The second story has, evidently, both normative and positive dimensions. Not only is it often presented as a description of an unfolding reality, but as a prescription—an answer to globalisation’s challenges and opportunities in the broadest sense. For example, if mobile capital in the global marketplace makes it difficult for governments to maintain environmental standards, one should create a world environmental organisation. Global governance may be seen as an effort of governments to take back control they have apparently lost at the national level to global markets. (Thus the interrelatedness of the two stories). Or, in a different way, the notion of crimes against the world community—against humanity—may be thought to imply logically that accountability for those crimes be addressed before a tribunal of the world community (the International Criminal Court (ICC)). The second story engages many of the multiple facets of sovereignty as a concept—its meaning as actual control or power to affect outcomes, its attributes as a positive legal principle or doctrine of the international legal order, and its many normative resonances, deeply connected to conceptions of legitimacy. In challenging these stories, I can hardly claim originality. They have already been put in question by studies such as those by Saskia Sassen and Anne-Marie Slaughter, which address the real world complexities of the relationship between globalisation and national sovereignty; there are international law scholars who have introduced subtlety and caution to the debate over the ‘loss’ of national sovereignty, for example Ruti Teitel. Nevertheless, the stories in question continue to influence-consciously or unconsciously—discussions about sovereignty and globalisation among international lawyers as a professional community. We would like to think that globalisation is about us—that as the functionaries or guardians of global law we possess the tools to realise globalisation’s opportunities and constrain its dark sides. To paraphrase Carly Simon, we’re so vain we think this song is about us. But it is about us only to a modest extent. Moreover, there is an increasing tendency among international lawyers, a tendency that however has existed throughout the post World War II period, to see international law or order not as a mechanism to achieve the objectives of governments and citizens within states where interstate cooperation is needed to attain those objectives, but as a constitutional or constitutionalist project on behalf of humanity or a world community. In this vision, the nation-state and national sovereignty are viewed as the sites of resistance and reaction. This tendency has been influenced by a development that is very positive: an increasing recognition of human rights as a normative constraint on national sovereignty, as a universal morality, the normative force of which does not depend entirely or perhaps even largely on state consent. But the leap from such a recognition to the idea of global constitutionalism, which seems intuitively obvious or almost instinctive for many international lawyers, is a huge—and I shall attempt to show—unwarranted one.
Source Publication
Redefining Sovereignty in International Economic Law
Source Editors/Authors
Wenhua Shan, Penelope Simons, Dalvinder Singh
Publication Date
2008
Edition
1
Recommended Citation
Howse, Robert L., "Sovereignty, Lost and Found" (2008). Faculty Chapters. 863.
https://gretchen.law.nyu.edu/fac-chapt/863
