A Framework for Comprehending Sovereignty

A Framework for Comprehending Sovereignty

by

Howard Adelman

As in a recipe for baking a layered cake, I begin with the ingredients. In a cake, the two main elements are usually, but not necessarily, flour and water. The two main elements in the case of sovereignty are state and nation. That does not mean that both are always present. When Louis XIV of France said, “L’État c’est moi,” France still consisted of a number of ethnic and linguistic groups, the Basques in the south, the descendants of the Ligures in the south-east, the Normans in the north descended from the Vikings, and the major group of Gauls and Belgae that were dominant in the territory that became France. There was no singular French nation at the time. But there was a state, and Louis XIV was the quintessential absolute monarch of that state.

While the nation was multiple, the state and the sovereign were one. That meant that the ability to raise taxes, to require the citizens of the French state to pay monies to the state, belonged to Louis XIV as the embodiment of the French state. This was the material dimension of sovereignty. At the same time, Louis insisted on a monopoly on coercive power within the territory of the state. As absolute ruler, any lords of the realm had to pledge their control and use of military power to Louis XIV’s purposes. This was the coercive dimension of sovereignty and the move towards the state having a monopoly on the use of coercive power. Finally, Louis XIV had absolute jurisdiction in making the laws of the land. Combining all three, Louis XIV controlled the exercise of three key elements of the state – material wealth, coercive power and legal authority.

Sometimes the state precedes the constitution of a nation. This was true in France. This was true in the United States. This was true in Canada. Some countries, such as Canada, never did forge a singular strong nationality, but a layered one in which all citizens could belong to the Canadian nation, but many could be Québécois, Ojibway, Cree or Inuit as well. Further, that sense of common identity developed and shifted over time. The bond formed was not primarily external and expressed through the formal and legal mechanism of citizenship, as in a state, but could be said to be intuitive characterized by informal bonds that tie together the members of a nation.

A nation has a national consciousness – a shared sense of group identity. That is its heart. A nation has a governing idea. In contemporary Canada, it may be the concept of a mosaic and a collective concern for the well-being of each of its members as manifested in one realm, a single payer system for guaranteeing health care. In the U.S., it may be a very different conception – a melting pot and a realm independent and separate from the power of the state, such as the idea of a frontier that is more about the personality of the nation than an actual territorial boundary. That is its heart.

In a nation, there are rules as well as ruling ideas, but those rooted not so much in formal authority as in a sense of authentic authority. In Canada, it may be the reputed civility, the politeness of Canadians. In America, it may be bluntness and the wide scope given to the expression of free speech so that Alan Dershowitz could insist that the American Civil Liberties Union intervene on behalf of Donald Trump against the charge of inciting violence at his rallies because, unless a direct connection between his words and the actions of the individuals committing the assault against a peaceful protester in the midst of the rally, can be established, the command to, “Get her out,” does not constitute incitement to violence unless the individuals committing the assault were paid agents of the Donald Trump campaign. In America, even though its extent is debated, the right of freedom of speech is much more broadly defined than in other political jurisdictions. Behind the constitution, this inchoate sense of the nation is often cited to justify legislation and interpretations of the formal legal system.

In addition to its heart and head, a nation is a source of empowerment through the exercise of its sense as a nation and its members’ identification with and service to that nation. These are the guts of a nation.

If a state consolidates its material foundation, its legal system and its ability to use coercive power over time, the process is directed towards making the unit more effective, more coherent and more unified. In the case of the nation, its dynamic, its changing qualities and characteristics, are much more on display and in play. The formation of a nation can almost always be said to be an activity in motion. When sufficient numbers share a singular identification to become a source of collective energy working for a common goal, a nation is formed that can be characterized by a unique energy source rooted in creative rather than coercive power.

State                                        Nation

Power                   Coercive                                     Creative

Authority               Formal or Legal                        Authentic

Influence               Material                                     Intellectual

While most states consolidate, their formation is independent of and usually precedes the formation of the nation that dominates within a state. This was not true of the ancient Hebrew nation-state or of the modern Dutch nation-state where the group developed a sense of itself as a nation before it constituted itself as a state. The Torah provides the narrative of the formation of the Israelite nation before there ever was a state. A nation is constituted by a set of reigning ideas that provide a profound intellectual influence on the spirit of a nation. The will of that nation becomes the source of authority for defining a nation, its historical purpose and the use of the spirit of a nation or its collective creative energy.

Opening Friday’s roundtable on sovereignty, Tom Axworthy cited Jean Bodin as his primary historical authority for defining sovereignty. Jean Bodin, a sixteenth century French jurist, philosopher and professor of law at Toulouse, was best known for his theory of sovereignty which defined sovereignty in terms of formal legal rule backed up by a monopoly on coercive power for governing a defined territory. What is less well known is that Bodin also wrote on the economy in a 1568 treatise, Réponse de J. Bodin aux paradoxes de M. de Malestroit in which he clarified that a state not only depended upon a legislated regime backed by coercive force, but a material foundation in which monetary policy (the amount of money in circulation) and the productivity of the regime were to be kept in some form of reasonable balance. Material wealth was not simply about the quantity of money – the increasing importation of silver and gold from South America at that time – but about the ability of the state to organize the production of goods and services consonant with the money supply.

However, in Bodin, the stress on these three dimensions of state sovereignty ignored the role of the sovereignty of the nation. Bodin provided a rationale for the consolidation of power, legislative authority and material wealth in a singular and dominant authority. Though Axworthy, in his presentation of a realist view of sovereignty, ignored the material dimension, his most significant omission was his obliviousness to the sovereignty of the nation and blindness to other ways in which the sovereignty of the state could be grasped.

Elizabeth Riddell-Dixon’s account stood in sharp contrast because she stressed the importance neither of military power nor the direction of material acquisition nor even of state legislated laws. International law set the foundation for recognizing the boundaries of a state in the north of Canada – in this case, the international law of the sea – backed up by scientific research that provided the intellectual substance for applying those norms. All this was part of the expression of the spirit of a nation even in a realm where there were no members requiring protection.

This is also why an international legal regime needs to be developed governing climate change based on extensive scientific research. Not for expanding our wealth, but for making the need to resort to coercive force obsolete and for ensuring human survival. Sara French-Rooke in her discussions of sovereignty when applied to northern peoples stressed the central place of personal security rather than state security, the emphasis again on survival rather than the accumulation of wealth ad infinitum.

This involved a very different conception of sovereignty, one rooted in a universal sovereign in which nations and states are simply trustees for a segment of territory on behalf of an eternal sovereign. The state and the nation may both come into existence in history, but behind and before that emergence there needed to be a magisterium universalis.

When there is an effort to make the universal sovereign the actual ruler, you then move towards an idealistic conception of sovereignty. For the ultimate authority, which would determine whether a state treated its citizens adequately, would be a source of universal governance. This was the intent of R2P. It was neither the intent nor the mechanism of the law of the sea, for the latter always depends on states opting into the process and, in the end, making the consent of the relevant states critical to the implementation of the universal norms.

There are clear implications of pushing one doctrine rather than another. In the realist or Bodin construction, policy would suggest that Canada needs a robust sea presence in terms of updated or new icebreakers reinforced by navy patrols and air surveillance to exercise its sovereignty. But Riddell-Nixon argued that neither coercion, the quest for material accumulation nor formal domestic legislation have been critical in determining the boundaries of sovereignty of Canada in the arctic region.

This framework also allows us to understand both shared and shattered sovereignty. In shared sovereignty, agents share formal authority and usually defend that shared authority by joint action of military forces. Revenues from resources may also be shared as between Sudan and South Sudan. Shared sovereignty may be between a domestic jurisdiction below the state level – such as a province – or there may be shared authority between a state and an external agent. Thus, Canada in matters of defence has largely surrendered its autonomous control of coercive power, at least where it concerns the defence of the North American continent, to the overwhelming might of America. When Canadians were debating over whether to have or get rid of nuclear-tipped Bomarc missiles in Sudbury in the Diefenbaker-Pearson era, this was a decoy. Americans had already deployed nuclear-armed missiles across the north of Canada, something few Canadians knew anything about at the time.

Sovereignty also shatters. It may be among Kurds, Sunnis and Shiites in Iraq or repressed as in the case of Turkey dealing with its Kurdish minority or a source of rivalry as between the Dinka and Neuer in South Sudan. Kenya has yet to forge a fully unified nation from its dominant tribes. In the UK, the Scots are seeking independence and, in Northern Ireland, there is some degree of shared sovereignty between Ireland and Great Britain. Shared sovereignty over control of the old city of Jerusalem has been proposed to resolve a major impasse in the peace negotiations between Israel and the Palestinians. Shared sovereignty is sometimes a positive response to the problem of a shattered state that stresses divisions rather than unity among the nations that make up a state.

Failed states usually result from the shattering of national identity, not simply because of its multiplicity. The tensions in America are deeply embedded in the mistreatment of America’s black population. I finally watched the marvellous documentary, 13th. The film is based on the thesis that the 13th amendment to the constitution passed to end slavery in the U.S., contained a loophole which allowed discrimination against blacks to be reinstated in new forms of legal coercion when the old forms became intolerable. The 13th amendment reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The loophole is in italics.

When slavery ended, the legal system in the south was used to arrest blacks in large numbers for spurious or minor offences. Southern states used this new form of slavery to build public works through the labour of chain gangs. When that practice was disallowed, the South switched to the use of Jim Crow laws legislating separation of the races and raising the hurdle for exercising voting rights. When Jim Crow was ended with the civil rights movement, the coercive system of black subjugation, though far weaker, persisted and switched to using the law and coercive powers of the state to raise the prison population in the U.S. Even though a task force constituted by Nixon recommended addressing the root causes of drug abuse through therapy rather than incarceration, Nixon introduced a war on drugs knowing it was irrelevant to reducing the drug issue, but as a mechanism for winning the south vote by identifying blacks with drugs and winning support for his unpopular Vietnam War by libelling hippies as stoned potheads.

The war on drugs continued and was enhanced by each presidential regime, including Clinton’s, so that by the year 2014 the prison population had exploded from numbers in the range of 300,000 to numbers in excess of 2.4 million. 40% were blacks. Law and coercion were used to disenfranchise blacks by alleging a spurious massive voter fraud and raising barriers to access voting to both demonize blacks as cheaters as well as retain support among white voters indoctrinated to fear blacks as rapists. The point is that the coercive might of the state, its legislative powers and its material interests can combine to repress a part of the nation and define that part as Other. That effort may turn to Mexican illegal and legal migrants as well, including Hispanic children born in the U.S., who, like blacks of old, were demonized by Donald Trump as rapists and criminals even though the rate of convictions of Hispanics was lower than the rate for native-born white Americans.

There is a material motive to undertaking such efforts since, in the partnerships of government and private business, large numbers of private corporations now have a vested interest in the economics of incarceration and the profits that flow from production facilities in prisons.  Thus, material interest can be united with a state’s control over coercive power and its legislative authority to repress part of a nation to enhance the identity of another part and unite that part through inculcation of the fear of the Other.

A healthy nation-state tries to ensure that all its citizens can identify with a nation that will be treated equally by the state, whatever the sub-national grouping. However, the coercive powers of the state, its legislative powers and its objective of facilitating the acquisition of material wealth can be combined to throw stones at and eventually crack and even shatter the windshield of the state.

 

With the help of Alex Zisman

Canada, thankfully, is travelling a path in the opposite direction.

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Sovereignty in 2017: It’s Meaning for Canada and the World

Sovereignty in 2017: It’s Meaning for Canada and the World

by

 

Howard Adelman

Egyptian President Abdel Fatah al-Sissi is visiting the White House today. Donald Trump has consistently expressed admiration for Sissi. In return, Sissi was the first foreign leader to congratulate Trump on his election victory. The mutual admiration society is understandable. Both leaders have rejected the position that any country or any international group of countries has the right to intervene in the domestic affairs of another country unless it is in the country’s interest to do so.

Trump has championed “America First” and, with it, the irrelevance of any moral responsibilities towards the population of another state. The doctrine, that Canada was in the forefront of developing, “The Responsibility to Protect” or R2P, has been thrust aside, not because it was not working as intended – there is a consensus on that conclusion – not because it was unworkable, a conclusion still in dispute but with weakened support, but because R2P did not fit in with the traditional doctrine of sovereignty – that each state was responsible for its own territory and the population in it and that a state should enjoy a monopoly of force to ensure the interests of the state were protected and advanced.

Hence, Trump has been in the process of dismantling the international liberal order and the role of the U.S. as the leader of that order. Sissi has abandoned the conception of Egypt as the leading power in the Arab world with a primary responsibility for the region and not just its own interests. At the same time, domestically, each state has moved to free itself from the constraints of an international human rights regime and able to define human rights through its own particular lens where some may have many more rights than others.

The path to the resurrection of the old and well-established doctrine of sovereignty has been turbulent. Egypt went through a pro-democracy uprising, the victory of a theocratic party in a democratic election, and a military counter-coup that suppressed the Islamic regime. America is going through its own version of democratic turbulence in which its leader blatantly rejects the doctrine of universal transparency and accountability, and admires “tough” approaches while openly disparaging human rights.

The conception of sovereignty is in play. Therefore, it was timely that Massey College this past Friday held a roundtable on the doctrine of sovereignty. True to the spirit of the new world disorder, the examination had a distinctly Canadian slant, but one in which R2P was rarely mentioned.

The highlight, at least for me, was a presentation by Dr. Elizabeth Riddell-Dixon, author of Breaking the Ice: Canada, Sovereignty and the Arctic Extended Shelf (Dundurn Press, April 2017, but not yet available). She is a Distinguished Senior Fellow at the Bill Graham Centre for Contemporary International History at the University of Toronto, a former professor of international relations at Western and a senior fellow at Massey College. She has written other books on women, on the role of NGOs internationally, on external constraints and domestic determinants in international policy, on the Canadian mosaic, and on the UN. She has been a prolific scholar with a very evident interest in issues dear to the liberal approach to international relations.

Her publisher’s blurb for her latest book begins with the following: “The Arctic seabed, with its vast quantities of undiscovered resources, is the twenty-first century’s frontier.” But that was NOT the thrust of her talk and, I suspect, not of the book. She made clear that the exploitation of natural resources in the Arctic was a long way off because of huge distances from settled society, the tough and unpredictable climate and terrain, and alternative sources of fossil fuels with far easier and more economic means of accessibility. Instead, she made clear that rather than being a frontier for material competition, the responsibility for the Arctic, rather than any benefit from it, was proceeding apace based on agreed international norms embodied in the authoritative international law of the sea and scientific studies undertaken cooperatively by the five countries surrounding the Arctic basin – Canada, Denmark, Norway, Russia and the U.S.

Riddell-Dixon’s approach did not start from any liberal conception of sovereignty and a doctrine that it was urgent to develop an international order to govern areas of mutual interest. Rather, her approach was distinctly functional. Here is what is happening with one major disruption to the process of systematically establishing spheres of responsibility – the misguided effort of Prime Minister Harper of Canada to claim Canadian sovereignty over the North Pole. That was much to the chagrin of the Danes, for there was a general consensus that the North Pole fell clearly within Danish territory. The Danes then responded to the outlandish and aggressive Canadian leader’s claim with their own even more aggressive counter claims.

However, with the exception of this temporary digression, the process has been an example of the responsibility to protect, of R2P, not of human populations, for there are no human settlements there and the areas in dispute lie 800 nautical miles beyond the northernmost Canadian outpost of Alert which itself is another equivalent distance from our northernmost Inuit settlement. Instead of competition, what has taken place has been based on an authoritative international regime already in place, the international law of the sea, which defines spheres of territorial ownership (10 nautical miles into the sea) then spheres of economic interest (200 nautical miles into the sea), and, finally, extensions if the continental shelf extends beyond that distance, the extant of the continental shelf being determined by scientists from all five countries.

This is a doctrine of sovereignty that begins with a marriage of responsibility with interests rather than placing the two conceptions at odds, with the emphasis that, on the basis of these international norms and empirical science to determine the application, it is not the UN but each nation that has the responsibility for determining its sphere of international interests and responsibilities.  This is realism at work, not idealism, but realism rooted in internationally agreed legal norms and applied through the use of detached scientific evidence. Thus, rather than the monopoly over force and the expression of material interest as the forefront for determining the boundaries of the sovereign state, the key ingredients are international law and internationally accepted principles and practices of science to establish facts on the ground, or, more literally, in the sea.

This constructivist conception was haunted by three other views of sovereignty, one of idealism’s R2P lurking in the background, the traditional hard-headed (a description chosen deliberately to convey both toughness and resistance to being shaped by experience) realism and, finally, a romantic view that would displace the concept of state sovereignty with populist sovereignty, this time rooted in the sensibilities and conceptions of the peoples of the north of each country, including Canada’s Inuit.

The latter was presented at the roundtable clearly and articulately by Sara French-Rooke, a public policy leader and advocate with expertise on northern and indigenous issues who has had a career building collaborative strategic networks among northern communities of the Arctic. While Riddell-Nixon had been unequivocal in stating that pan-Arctic people’s power had virtually no role in determining state borders and responsibilities in the Arctic Basin, French-Rooke has had a leading role in bringing attention to the clean-water crises of remote northern communities, mercury contamination, housing and health issues, including the pandemic of suicides among youth.

I have dubbed this a “romantic” view of sovereignty, not to be dismissive, or to link it with escapism and fantasy, unrealizable idealism and aspirational politics, but to root the ideas embedded in the expression of economic realities and injustices, social concerns and political debates, in patterns and priorities that can be traced back to the origins of the modern nation-state and that have had very prominent expressions in the history of modern political theory. Whereas R2P stressed an idealistic view of a common humanity which, of necessity, has remained the leading edge of the climate change debate well articulated by John Godfrey at the roundtable, the romantic version of sovereignty stresses detailed contextual accounts of lives actually lived. In this view, politics and public morality have to begin with the concerns of peoples, and, primarily, peoples suffering, for, at root, sovereignty is about an ability to govern oneself, to determine one’s own destiny and, in this case, to do so collectively on behalf of suffering nations in the north.

In addition to the universalist and idealist approach of R2P that has been most relevant to the climate change debate, and the populist romantic view of sovereignty as the duty of a state to take care of its most vulnerable populations, both opposed to Riddell-Dixon, there is another realist portrait of sovereignty that was introduce in the morning by Tom Axworthy, ironically the brother of Lloyd Axworthy, so instrumental in forging the doctrine of R2P applied to international affairs.

In that realist view, sovereignty is the supreme power of a state to determine its own destiny. Its key ingredients are control over a defined territorial expanse and the monopoly of coercive force to achieve that goal.  The key elements are a defined physical territory, coercive power, the formal legal authority to determine the laws of a country and the mode of defending its interests.

With the help of Alex Zisman