DOES DE FACTO SUFFICE?:


Towards a New Understanding of National Sovereignty, and the Utility of the UN
(Caerdroia, August 10, 2005)

While most of the challenges to sovereignty come in the form of transnationalism – that is, most of the challenges have been attempts to tear down nation-state structures and replace them with broader and generally less representative structures. The ultimate end goal of this would be a single government encompassing the entirety of humanity – there is no requirement that sovereignty be understood in that light. It is equally plausible (and far more sane in view of the various horrors visited upon humans throughout history in the name of centralization of power) to devolve sovereignty onto each individual person, and have governments obtain their sovereignty explicitly from the individuals who form them.

But more urgently than such philosophical musings is the nature of sovereignty in current, practical terms and how it should be understood and acted upon. That answer will be somewhere between the radical individualists and the radical global statists, but I think it is clear that the current understanding of sovereignty has to change. In particular, areas in which a de jure sovereign country is not de facto sovereign need to be considered anarchic, and thus open to all comers without prejudice.

It has always been the case that areas without strong government tend to bring out warlords, pirates, terrorists and the like – people need social organization, and in the absence of it, or where it is weak, strongmen inevitably arise. The reach given these miscreants by modern technology, which they could not produce, but can use to destroy, makes such groups more of a threat then they ever were before, even during the heyday of the Barbary Coast pirates. Because of this new capacity for destruction, married to the ancient will to destroy, it is no longer possible for target states – that is, any modern state – to tolerate these areas.

Yet under the current system, were the US to go into Nuevo Laredo and the other border areas to roust out the bandits, this would be seen as an invasion, even though when the Mexican federal agents go into Nuevo Laredo, they are attacked and killed as invaders themselves into territory de facto controlled by drug lords and coyotes – often one and the same people, actually. But why should it be? In what way is Mexico other than nominally in control of the border area? The same situation exists in Pakistan’s NorthWest Frontier, where Osama bin Laden apparently is holed up in quite the fortress, and where Pakistan’s army dare not venture. Yet were the US to intervene in the area – even if it were to do so to restore de facto sovereignty to Pakistan – this would be considered an invasion.

I believe that it is time to redefine sovereignty specifically to de facto sovereignty, unless all sides in a particular dispute agree to accept de jure sovereignty in defiance of reality (for example, this might be a possible compromise with China and Taiwan), at least as regards international conventions on where the use of force from another state constitutes a violation of sovereignty, and thus (theoretically) requires the approval of the UN or some other international body. But I do not think that such a definition would be agreed to by current states or international bodies – all of which are founded on the current understanding of sovereignty. For example, the UN is entirely concerned with de jure sovereignty – de facto sovereignty has no place in any UN undertaking. This is why the UN is incapable of dealing with truly failed states: it needs a state structure within which to work, and the agreement of the very “states” that it seeks to reform.

The unfortunate flipside of this though would be that de facto control of an unwilling people by a tyrannical power would be entitled to the same recognition–for example, China has no problem exercising de facto sovereignty over Tibet.

MORE:
MAKING DE FACTO RULERS THE NEW DE JURE SOVEREIGNS (ZenPundit, 8/10/05)

Transnational Progressivism, in theory aspires to erecting an international supragovernment – not the ” one world government ” once feared by the John Birch Society, that would be far too accountable and easily blamed – but a diffuse mosaic of transnational entities with ill-defined but very broad, overlapping, jurisdictions and vaguely articulated but far-reaching powers. All of course, that would claim to legitimately supercede the rights and powers of nation-state governments. That is theory.

As a matter of practical application, most of these trans-prog NGO activists content themselves withad hoc legalistic gambits to hamstring the execution of legitimate, democratically-elected and accountable state authority. The documents they do manage to produce at a diplomatic level – Kyoto, The ICC agreement, the EU Constitution – are all noteworthy for their convoluted and excessively complicated structures and avoidance of responsibility in terms of the purpose for which they were created. Their spirit is not democratic but oligarchical, giving shadowy groups of unelected activists on the NGO circuit the power to gum up the works. […]

The old Westphalian Rule-set is dying. Sovereignty is being challenged by forces of transnationalism, subnationalism and state failure. There is of yet, no agreement on the Rule-Set to replace the current standards of international diplomacy that rely increasingly on polite fictions that are at ever greater variance with reality. There is in fact, much dispute over whether the cognitive dissonance of treating geographic expressions like Somalia as nation-states is even a problem.

We need a Rule-set reset to move international law into better alignment with reality but before that can happen a cognitive reset must occur to force global elites to acknowledge that reality.

5 Responses to DOES DE FACTO SUFFICE?:

  1. Jeff Medcalf says:

    I see your point re: Tibet, and I certainly wouldn’t recommend that de facto sovereignty be used as the one true definition of sovereignty. Other cases where this would cause problems abound. My point was only about whether or not one state could legitimately use force without the acquiescence of the UN or the de jure sovereign government of an area. In the context of using force without external authorization, I think that it is far better to err on the side of allowing powerful states to clean up areas that are effectively anarchic than to treat Somalia, say, as if it were as legitimate a state as, say, Poland.

    I agree with Mark, in other words: Westphalia is passing away, due in large part to the breakup of the colonial empires and multiplicity of world powers that made Westphalia necessary. Given that, I am proposing a new rule, in PNM terms: any government which has de facto power over an area is sovereign in that area, unless they recently gained that sovereignty by overthrowing another government that previously had de facto sovereignty in that area; but any area in which de jure, but not de facto, sovereignty exists would be open to intervention without prior international approval.

  2. oj says:

    Again though, how long does China have to hold Tibet in that scenario before it’s not “recently gained”?

    Isn’t the new rule that’s most appropriate for Americans a test of democratic legitimacy? Thus, not only is China illegitimate in general because it’s not democratic but its control of Tibet is especially dubious because it violates rules of self-determination. Isn’t allowing Castro to control Cuba or Kim Jong-il to control North Korea as bad or worse than the somewhat chaotic stuation in Darfur?

  3. Jeff Medcalf says:

    Of course the democratic legitimacy standard is an excellent one to aim for. Indeed, I think that we should seriously consider forming a League of Democracies, which would be like the UN, but only for democratic states. We should limit things like WTO, defense ties, decisions for intervention and so forth to the League, while leaving the UN in place as a general democratic meeting place, and to handle things like international civil aviation rules, ISO standards and the like that impinge all nations. In other words, if you want the economic and social and military benefits, you become representatively governed. If you can’t abide democratic governance, you don’t get admitted to the club where the big kids get to play.

    That said, under the system as it currently stands, do we want a standard where every non-representative nation is inherently subject to abrogation and replacement by whomever in the international community decides to do so? And under that standard, wouldn’t China have just as much right to (monarchic) Tibet as Tibet has?

    I see your point, but I think that as phrased it’s not necessarily what you are looking for. Worse yet, the international community would never stand for it, since so few of them are truly democracies, and most of those want to trade with the tyrannies.

  4. oj says:

    We actually include an essay about the forging of a Democratic Caucus within the UN in our book. The essay is on-line here:

    http://www.reason.com/rauch/032204.shtml

    The point, of course, is that neither the broader international community nor a state like China get a say. The United States and its democratic allies will determine who is legitimate and who is not.

  5. Jeff Medcalf says:

    I’m all for that.

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